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Vanderbilt Journal of Transnational Law

First Page

761

Abstract

The influence of British and United States courts on each other's statutory and decisional law has been primarily indirect. Although few fundamental differences exist between the legal principles, methods, and concepts of the two major common law jurisdictions, the courts in both countries have resisted the use of the other's case law. This is unfortunate because a United States or an English case might provide a fresh perspective for a domestic court that otherwise feels bound by a previous line of reasoning. Since cases from foreign jurisdictions are most relevant in dealing with a question of international or transnational law, it is not surprising that one of the few examples of a direct reciprocal influence between British and American courts is a mixed question of international and domestic law, the problem of sovereign immunity. The development of similar concepts of foreign sovereign immunity law by British and United States courts not only provides a rare example of direct reciprocal influence, but also provides a useful case study in this unusual process. The dual nature of foreign sovereign immunity law at first encouraged British and American courts to draw upon each other's precedents and later, to be more reluctant to use them. Few other areas of British-American legal interaction allow as clear an illustration of interaction's usefulness or difficulties. This note will describe and explain the evolution of Anglo-American foreign sovereign immunity concepts from the first formulation by Chief Justice Marshall in The Schooner Exchange v. McFadden, to the final codification of the restrictive theory of immunity in the United States Foreign Sovereign Immunity Act of 1976 and the United Kingdom's State Immunity Act 1978. On one hand, this interaction between United States and British law demonstrates that the use of foreign common law precedents by domestic courts can be misleading and can produce wrong conclusions and doctrines. On the other hand, this interaction demonstrates that careful use of another country's common law precedents can provide a fresh perspective on a similar legal doctrine and speed development of the law. The passage into law of the State Immunity Act 1978 provides a useful vantage point from which to survey the entire process as a study of British-American legal interaction because the act is the most advanced development of Anglo-American foreign sovereign immunity law.

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