Legal Commentary

Tit-for-Tat, and Collateral Damage

By Eugene Volokh

On the Why American Courts Should Sometimes Consider Islamic Court Rulings thread, a commenter writes:

I think one consideration should be if the foreign court would honor a American court?s findings. This shouldn?t be a one-way street.

I suspect that most foreign countries are perfectly happy taking at face value American marriages and divorces between American citizens. But say that isn?t so ? say, for instance, that Iran for some reason refuses to recognize American divorces.

Now say that Jane Doe, an American citizen, meets and marries Mohammed Moe, an Iranian refugee who has now become an American citizen. It turns out that decades ago, Moe had married Francoise Foe in France, Moe and Foe moved to Iran, and then Moe and Foe divorced in Iran. Everything was perfectly normal and aboveboard in all these transactions. You?d think the situation would be straightforward: Doe and Moe are to be treated as married under U.S. law, and this result would be in the U.S. legal system?s interests.

But under my correspondent?s proposal, Doe and Moe are not married, because Moe is still married to Foe. Moe?s French marriage to Foe is recognized (because France recognizes American marriages). But Moe?s Iranian divorce from Foe is not recognized (because, by hypothesis, Iran would not recognize American divorces). Doe and Moe thought they were married. They relied on their being married. It?s on balance good for U.S. to treat people like them as married, since legally recognized marriage is generally speaking socially valuable. But now they?re not married, not because of any fault of their own but because of the stupid rules of Iran. And remember that Jane Doe had never even been to Iran; why should she suffer as a result of the hypothetical Iranian refusal to recognize American decisions?

Does that really make sense? Sure, if the American government decided to play hardball, in order to get Iran to recognize American marriages and divorces, it might threaten Iran with nonrecognition of Iranian marriages and divorces. But it?s not clear that this would budge Iran much, and it?s not clear that trying it is indeed such a good foreign policy move, especially given the collateral damage it would cause in the meantime to Americans.

More broadly, it?s the sort of foreign policy move that should be done by the federal government?s executive branch, not by state courts. State courts? job is not to exert international pressure. Their job is to maintain a sensible, fair, and efficient legal system for their citizens; and refusing to recognize foreign marriages and divorces, and hurting Americans in the process does not serve those goals.

Full post as published by The Volokh Conspiracy on November 26, 2010 (boomark / email).