The Politicization of Judgment Enforcement
Robertson, Cassandra Burke, Case Western Reserve Journal of International Law
In Medellin v. Texas, the Supreme Court went out o-f its way to disavow any intent to bring its analysis into the realm of civil litigation. This Article, prepared for the Frederick K. Cox International Law Center Symposium "Presidential Power, Foreign Affairs, & the 2012 Election," argues that in spite of the Court's stated intent, there is reason to believe that the policies animating Medellin may nonetheless bleed into transnational civil litigation. Medellin represents a noteworthy shift in the process of international lawmaking; it moves away from a traditional process and de-emphasizes executive power at the federal level. In theory, it allows greater legislative and state participation in the international realm. For private international law--and especially .for matters of forum selection and judgment enforcement--this participation is likely to mean politicization. By leaving an opening .for further politicization of international law, the Court's opinion in Medellin moves the United States .further away from being able to implement a coherent court-access policy.
The Supreme Court's decision in Medellin v. Texas, which held that that a decision of the International Court of Justice would not pre-empt state limitations on the filing of successive habeas petitions, (1) can be read as a death-penalty case, (2) as a federalism case, (3) or as an international human-rights case. (4) By no stretch of the imagination is it a case about ordinary civil litigation. It seems almost incongruous, then, that the majority opinion would go out of its way to disavow any intent to bring its analysis into the realm of civil litigation. But the Court does exactly that, asserting that its "holding does not call into question the ordinary enforcement of foreign judgments or international arbitral agreements." (5) This very disavowal reveals ala underlying concern that the policies animating Medellin may indeed bleed into transnational civil litigation. (6) Nor is this concern unwarranted: although the Court is correct that Medellin does not directly affect ordinary judgment enforcement, the Court's opinion increases the risk that domestic politics will influence transnational judgment enforcement in ways that harm the nation's foreign policy interests, and ultimately, its economic interests as well. (7)
There is no doubt that questions of court access and foreign judgment enforcement implicate both foreign policy and economic vitality. (8) Professor Stephen Burbank has described how the "geopolitical ramifications of international commerce" interact with the domestic judicial system. (9) Over the last three decades, the United States has struggled with its role in transnational litigation. The availability of higher damage awards, liberal discovery, and accessible courts made United States courts an attractive destination for foreign plaintiffs, though it has made the United States much less attractive for foreign defendants. (10) The centrality of the United States' role in transnational litigation is now shrinking, however, as both commerce and commercial litigation are entering a more multipolar era. (11)
As parties perceive greater freedom in choosing a destination for transnational lawsuits, the foreign policy of court access becomes ever more important. If the United States is viewed as an uncooperative judicial partner, nations may retaliate by enacting legislation that either encourages litigation against U.S. companies or discourages investment and trade by those companies--both scenarios would harm U.S. economic interests abroad. (12) Likewise, unilaterally generous judgment enforcement policies may make it more difficult to negotiate a multilateral judgment enforcement convention, (13) but more restrictive policies run the risk of a worldwide search for corporate assets in a potentially more favorable forum. (14)
Medellin--even though it is ostensibly so far removed from civil litigation practice--moves the domestic discourse away from a coherent court-access policy. …