This Note gives the legal background of the doctrine of dormant foreign affairs preemption, examines the laws governing the recognition of foreign judgments under the lens of dormant foreign affairs preemption, and argues that courts should adopt an objective standard for future dormant foreign affairs preemption cases.
Dormant foreign affairs preemption is premised on the idea that the federal government should have exclusive control over foreign affairs. The doctrine allows courts to preempt state laws in some cases where there is no conflicting federal policy or statute. The U.S. Supreme Court has only once held a state statute unconstitutional under the doctrine. In addition, not all scholars agree that courts should apply dormant foreign affairs preemption, and many argue the federal government merely has supreme, rather than exclusive, authority in foreign affairs. However, lower courts continue to apply a wide variety of tests to preserve the federal government’s exclusive role in foreign affairs.
Dormant foreign affairs preemption is best understood by exploring an area of law that captures the competing interests in current dormant foreign affairs preemption analyses. This Note considers the laws governing the recognition of foreign judgments, an area of traditional state competence that also has a substantial and growing impact on modern conceptions of foreign affairs.
Finally, this Note argues that courts would benefit from applying an objective standard that looks at whether other countries would reasonably expect the federal government to have exclusive jurisdiction over an area of law. Unlike current standards, this analysis accounts for changing notions of foreign affairs and protects against encroachments on state sovereignty. Under the objective standard, the federal government would have exclusive jurisdiction over regulation of the recognition of foreign judgments.
Marc P. Epstein,
Comity Concerns Are No Joke: Recognition of Foreign Judgments Under Dormant Foreign Affairs Preemption,
82 Fordham L. Rev. 2317
Available at: https://ir.lawnet.fordham.edu/flr/vol82/iss5/13