Reconceptualizing Recognition Uniformity

Abstract

An often-cited basis for implementing a federalized foreign judgments recognition-and-enforcement regime is to create predictability for litigants by achieving uniformity. But the debate over federalization has largely misconceptualized uniformity, focusing on the nonuniformity of state statutory regimes, rather than outcome uniformity, that is, past litigant and court behavior. And there is little evidence that the federalized alternative would produce significantly more outcome uniformity than the current state-by-state approach. Therefore, while federalization may have other advantages, the uniformity justification currently lacks adequate theoretical and empirical support. Accordingly, the practical consequences of choosing one approach over the other may be less significant than much of the current discourse suggests.