Abstract:
U.S. law differentiates between two categories of foreign defendants—sovereign and private. On one level, whether a foreign entity is sovereign determines whether they are presumptively entitled to immunity in domestic courts, and this is justified by the nature of sovereignty as articulated in U.S. and international law. However, different procedural rules also apply to these parties, meaning the “sovereign or not” determination also impacts other rules of the game. This Article proposes conceiving of the ways procedural rules do or do not differ between foreign sovereign and foreign private defendants as “procedural sovereign distinction,” outlining treatment of these defendants across personal jurisdiction, service of process, and injunctive relief. Current procedural sovereign distinction has lost track of the concept of sovereignty, creating a mismatch between the distinction’s justification and the way it is applied. At a minimum, we should acknowledge this mismatch exists. But we also might consider revising the doctrine of procedural sovereign distinction to promote the value of legal rules fitting and being justified by the principles underlying the legal system.