Eugene Volokh's Blog, page 55

[Josh Blackman] Today in Supreme Court History: July 11, 1921

7/11/1921: Chief Justice William Howard Taft takes oath.

Chief Justice William Howard Taft

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Ilya Somin] Federal Court Issues Class Action Injunction Against Trump's Birthright Citizenship Executive Order [Updated]

[This ruling was widely expected in the wake of the Supreme Court's decison barring nationwide injunctions.]

Photo by saiid bel on Unsplash; Reamolko

In the aftermath of the Supreme Court's ruling in Trump v. CASA, barring nationwide injunctions, most informed observers expected courts to instead certify broad class actions against Donald Trump's birthright citizenship executive order (which denies birthright citizenship to children of undocumented immigrants and non-citizens present on temporary visas). That's precisely what happened today.

Federal District Judge Joseph Laplante has certified a class consisting of all current and future children who stand to lose citizenship rights because of Trump's order, and issued a preliminary injunction barring enforcement of the order against all members of that class.

Obviously, the administration will appeal the class certification and injunction, and the issue could well get back to the Supreme Court. Perhaps sooner rather than latter.

I am no class action expert. But, for what little it's worth, I think this class does meet the Rule 23 requirements of numerosity (the class has hundreds of thousands of members), commonality (the class members all have an obvious common interest in getting citizenship, thereby avoiding potential deportation), typicality (the class representatives litigating the case seem to be typical of the class as a whole), and adequacy of representation (the ACLU lawyers litigating the case seem more than adequate, as far as I can tell). But, again, I am no class action expert, so this opinion may not be worth much more than the money you're (not) paying to read it!

Even if this class action succeeds, I remain convinced that Trump v. CASA was a bad decision. The class action certification remedy may not be so readily available in some other important cases involving large-scale illegality by federal, state, or local governments.

But assume I am wrong about that. Assume that class actions or some other comparably broad remedy will be feasible in every situation where a nationwide injunction might have been available before. In that event, I would wonder what the point of getting rid of nationwide injunctions was in the first place, as litigants would still be able to get essentially the same remedy by another name. If basically the same remedy is in fact available to same degree as before, I say it's better to just call a spade a spade, than to pretend your spade is actually a shovel.

Today's ruling, like the Supreme Court decision, does not address the substantive legality of Trump's order. This same district court had already ruled that the order is unconstitutional, and the Supreme Court's decision did not overturn that, but only addressed the issue of the scope of the available remedy.

For my explanations of why children of undocumented immigrants are constitutionally entitled to birthright citizenship and criticisms of some standard contrary arguments, see here and here.

UPDATE: Judge Laplante's opinion justifying the class action certification is available here. His analysis of the various class action factors strikes me as compelling. But, again, this is not my area of expertise.

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[Eugene Volokh] Begun the Clone War Has, Here as to Cloning of Voice-Over Actors' Voices

From today's decision by Judge Paul Oetken in Lehrman v. Lovo, Inc. (S.D.N.Y.):

[Voice-over actors] Paul Lehrman and Linnea Sage bring this putative class action against .. Lovo, Inc. … alleging that Lovo used artificial intelligence … to synthesize and sell unauthorized "clones" of their voices….

Ultimately the Court concludes that, for the most part, Plaintiffs have not stated cognizable claims under federal trademark and copyright law…. [But] claims for misappropriation of a voice, like the ones here, may be properly asserted under Sections 50 and 51 of the New York Civil Rights Law [New York's right of publicity statute], which, unlike copyright and trademark law, are tailored to balance the unique interests at stake. Plaintiffs also adequately state claims under state consumer protection law and for ordinary breach of contract….

After hearing what appeared to be Lehrman's voice on Deadline Strike Talk, Plaintiffs sought to learn more about Lovo. Lehrman found that Lovo "had been marketing [the clone of his voice] as part of its subscription service under the stage name 'Kyle Snow,'" and that it was this "Kyle Snow" voice that he had heard on the podcast…. Sage discovered that Lovo had created a clone of her voice named "Sally Coleman" that was available to Lovo's subscribers. Lovo also marketed its product using "side-by-side" comparisons of Sage's original audio recordings … and the "cloned version of her voice." …

According to Plaintiffs, the Kyle Snow and Sally Coleman voices are not synthetic creations, composites, or amalgams, built from a multiplicity of input voices, but direct copies of their specific voices. In support, Plaintiffs point to public statements Lovo and its executives have made describing Lovo's software. In such statements, Lovo has claimed that its product "reproduce[s]" actors' voices in a way that is "practically indistinguishable from the 'real' voice….

The opinion is over 20,000 words long, so I won't try to summarize it here, but here's an excerpt from the right of publicity discussion:

While "[t]he statute does not define trade or advertising purposes," New York courts give those terms their ordinary meanings. "Advertising purposes has been defined as use in, or as part of, an advertisement or solicitation for patronage of a particular product or service, and trade purposes involves use which would draw trade to the firm." That said, the statute was drafted so as not to conflict with the First Amendment, and therefore does not reach newsworthy uses or matters of public interest.

Here, Plaintiffs adequately allege use in both advertising and trade, and Lovo does not raise a First Amendment, newsworthiness, or public interest defense. Whether or not the solicitation of investors itself counts as an "advertisement," the function of the "investor presentation, which was later posted publicly online, is plausibly understood as promoting Lovo's underlying product. The same goes for the use of Lehrman's voice in tutorials and promotional articles posted online.

Moreover, even if the voices were not used in formal advertisements or solicitations, they were clearly used for commercial purposes, and to draw trade to the firm. It is plausible to infer that, by illustrating the value of the product and helping show prospective customers how to use it, Lovo used its publicly posted tutorials to increase the appeal of its software, acquire subscribers, and retain subscribers it already had. Plaintiffs allege even that Lehrman's cloned voice was Lovo's default product and one of its self-described "best" voices….

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[Eugene Volokh] Begun the Clone War, Has, Here as to Cloning of Voice-Over Actors' Voices

From today's decision by Judge Paul Oetken in Lehrman v. Lovo, Inc. (S.D.N.Y.):

[Voice-over actors] Paul Lehrman and Linnea Sage bring this putative class action against .. Lovo, Inc. … alleging that Lovo used artificial intelligence … to synthesize and sell unauthorized "clones" of their voices….

Ultimately the Court concludes that, for the most part, Plaintiffs have not stated cognizable claims under federal trademark and copyright law…. [But] claims for misappropriation of a voice, like the ones here, may be properly asserted under Sections 50 and 51 of the New York Civil Rights Law [New York's right of publicity statute], which, unlike copyright and trademark law, are tailored to balance the unique interests at stake. Plaintiffs also adequately state claims under state consumer protection law and for ordinary breach of contract….

After hearing what appeared to be Lehrman's voice on Deadline Strike Talk, Plaintiffs sought to learn more about Lovo. Lehrman found that Lovo "had been marketing [the clone of his voice] as part of its subscription service under the stage name 'Kyle Snow,'" and that it was this "Kyle Snow" voice that he had heard on the podcast…. Sage discovered that Lovo had created a clone of her voice named "Sally Coleman" that was available to Lovo's subscribers. Lovo also marketed its product using "side-by-side" comparisons of Sage's original audio recordings … and the "cloned version of her voice." …

According to Plaintiffs, the Kyle Snow and Sally Coleman voices are not synthetic creations, composites, or amalgams, built from a multiplicity of input voices, but direct copies of their specific voices. In support, Plaintiffs point to public statements Lovo and its executives have made describing Lovo's software. In such statements, Lovo has claimed that its product "reproduce[s]" actors' voices in a way that is "practically indistinguishable from the 'real' voice….

The opinion is over 20,000 words long, so I won't try to summarize it here, but here's an excerpt from the right of publicity discussion:

While "[t]he statute does not define trade or advertising purposes," New York courts give those terms their ordinary meanings. "Advertising purposes has been defined as use in, or as part of, an advertisement or solicitation for patronage of a particular product or service, and trade purposes involves use which would draw trade to the firm." That said, the statute was drafted so as not to conflict with the First Amendment, and therefore does not reach newsworthy uses or matters of public interest.

Here, Plaintiffs adequately allege use in both advertising and trade, and Lovo does not raise a First Amendment, newsworthiness, or public interest defense. Whether or not the solicitation of investors itself counts as an "advertisement," the function of the "investor presentation, which was later posted publicly online, is plausibly understood as promoting Lovo's underlying product. The same goes for the use of Lehrman's voice in tutorials and promotional articles posted online.

Moreover, even if the voices were not used in formal advertisements or solicitations, they were clearly used for commercial purposes, and to draw trade to the firm. It is plausible to infer that, by illustrating the value of the product and helping show prospective customers how to use it, Lovo used its publicly posted tutorials to increase the appeal of its software, acquire subscribers, and retain subscribers it already had. Plaintiffs allege even that Lehrman's cloned voice was Lovo's default product and one of its self-described "best" voices….

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[Eugene Volokh] "The Alleged Misdeeds of Jewish Individuals, Elected Officials, Judges and Others in Myriad Circumstances,"

["including Plaintiff's divorce proceedings and criminal case."]

From Uzamere v. Trump, decided Monday by Judge Timothy Kelly (D.D.C.):

Over 201 paragraphs and 95 pages of the original complaint, Plaintiff purports to challenge Executive Orders 13899 and 14188 [the ones related to "Combating Anti-Semitism" -EV] on the ground that they "violate the Establishment Clause [of the First Amendment to the United States Constitution] that prohibits the government from establishing a religion; and the Free Exercise Clause, that protects individuals' right to practice their religion … as they choose."

Plaintiff, "an adherent of the Jehovah's Christian Witnesses sect," alleges the Executive Orders are "designed to subject individuals who engage in disseminating information regarding members of Jewish leadership who engage in unconstitutional, tortious or criminal acts that are permitted by the Babylonian Talmud to be subject to Jewish leadership's interference with commerce by threats, violence and other tortious and criminal offenses."

What follows is a lengthy discussion of Plaintiff's prior lawsuits, lawsuits filed by others, and the alleged misdeeds of Jewish individuals, elected officials, judges and others in myriad circumstances, including Plaintiff's divorce proceedings and criminal case. It is not clear whether or how these matters pertain to Executive Orders 13899 and 14188, however, particularly insofar as certain events occurred prior to the election of the current President of the United States and issuance of Executive Order 14188. Nor is it clear whether or how enforcement of the Executive Orders affects Plaintiff.

Plaintiff's original complaint is neither short, plain, nor intelligible, and her Errata (ECF No. 4) and myriad exhibits (ECF Nos. 1-1 through 1-58, 4-2 through 4-34) utterly [fail] to clarify matters. Because the pleading fails to meet Rule 8(a)'s minimum pleading standard, the Court will dismiss it without prejudice.

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[Ilya Somin] Supreme Court Refuses to Consider Eviction Moratorium Takings Case

[But Justice Clarence Thomas wrote a strong dissent to denial of certiorari.]

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It wasn't a great Supreme Court term for property rights advocates. In March, the Supreme Court refused to hear Bowers v. Oneida County Industrial Development Agency, which I and many others thought would have been a great opportunity to overturn or at least limit Kelo v. City of New London. On June 30, the Court similarly denied cert in GHP Management Corp. v. Los Angeles, a Ninth Circuit case that would have been a great opportunity to address the issue of whether eviction moratoria qualify as takings - and rule that they do!

But Justice Clarence Thomas wrote a strong dissent to the denial, joined by Justice Gorsuch. Here is an excerpt:

I would grant review of the question whether a policy barring landlords from evicting tenants for the nonpayment of rent effects a physical taking under the Takings Clause.

This question is the subject of an acknowledged Circuit split. The Eighth and Federal Circuits have held that a bar on evictions for the nonpayment of rent qualifies as a physical taking, while the Ninth Circuit has held that it does not….

This Circuit split stems from confusion about how to reconcile two of our precedents. The Ninth Circuit treated as controlling this Court's decision in Yee v. Escondido, 503 U. S. 519 (1992), which held that a statute did not effect a physical taking when it allowed mobile home owners to evict tenants only after an onerous delay….

By contrast, the Eighth and Federal Circuits looked to our more recent decision in Cedar Point Nursery v. Hassid, 594 U. S. 139 (2021). There, we held that a law requiring
agricultural employers to allow labor organizers onto their property constituted a physical taking because it "appropriate[d] for the enjoyment of third parties the owners' right to exclude." Id., at 149. And, the Eighth and Federal Circuits reasoned, if "forcing property owners to occasionally let union organizers on their property infringes their right to exclude," it follows that "forcing them to house non-rent-paying tenants (by removing their ability to evict)" does too….

Because "[w]e created this confusion," we have an obligation to fix it. Gee v. Planned Parenthood of Gulf Coast, Inc., 586 U. S. 1057, 1059 (2018) (THOMAS, J., dissenting from denial of certiorari). That obligation is particularly strong here, as there is good reason to think that the Ninth Circuit erred. Under the logic of Cedar Point, and our Takings Clause doctrine more generally, an eviction moratorium would plainly seem to interfere with a landlord's right to exclude. See Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. 758, 765 (2021) (per curiam) ("[P]reventing [landlords] from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude"). Nor does Yee dictate otherwise: Although the statute there constrained landlords' right to evict, it was not "an outright prohibition on evictions for nonpayment of rent." Darby, 112 F. 4th, at 1035…

Finally, this issue is important and recurring. Given the sheer number of landlords and tenants, any eviction-moratorium statute stands to affect countless parties. And,
the end of the COVID–19 pandemic has not diminished the importance of this issue. Municipalities continue to enact eviction moratoria in the wake of other emergencies.

I think Thomas is right on virtually all points here.  I would add the split in the lower courts extends not only to federal circuit courts, but also to state supreme courts. In 2023, the Washington Supreme Court upheld an eviction moratorium in Gonzales v. Inslee. While the ruling was based on the state constitution, the court also held there was no taking under the federal standard for physical takings. I criticized the Washington ruling in my contribution to a December 2023 Brennan Center symposium:

In Cedar Point Nursery v. Hassid, the U.S. Supreme Court ruled in 2021 that even temporary mandated physical occupations of privately owned land qualify as "per se" (automatic) takings under the Takings Clause of the Fifth Amendment. Gonzales only addresses claims under Article I, Section 16 of the Washington Constitution. But the state supreme court ruled that eviction moratoriums are not covered by the per se rule, even assuming it applies to Section 16. The justices reasoned the eviction moratorium was merely a "regulation" of a preexisting "voluntary relationship" between tenants and owners. They ignored the obvious point that, in the absence of the "regulation," the tenants would have no right to remain on the owners' land. Thus, an eviction moratorium undeniably does mandate a physical occupation of property.

The court's reasoning — which may be copied by other state and federal courts — has implications that go beyond eviction moratoriums (though those are significant in themselves). If there is no takings liability for physical occupations linked to "voluntary relationships," then there is no taking when conservative states require businesses and employers to allow employees and customers to bring guns onto their property, or when they enact laws barring employers from excluding workers who refuse to get vaccinated for Covid-19 or other contagious diseases.

While eviction moratoriums may seem like beneficial regulations, their effect is to raise the cost of housing and reduce its availability. Evidence indicates they did little to help the poor or to curb the spread of Covid during the pandemic.

See also my analysis of last year's Federal Circuit decision in Darby Development Co. v. United States, which went the other way. Thomas cites Darby in his discussion of the circuit split, quoted above.

I have my issues with Thomas's jurisprudence on a number of other fronts. But he is one of the best current justices on takings issues. I hope the Court eventually listens to him on this one. Eviction moratoria are clearly takings, and jurisdictions that impose them must pay compensation.

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[Eugene Volokh] No Sanctions Against Prof. Francesca Gino Over Libel Claim Against Data Colada

From today's order by Judge Myong J. Joun (D. Mass.) in Gino v. President & Fellows of Harvard College:

The Data Colada Defendants request sanctions based on Gino's defamation claims, which alleged that the Defendants falsely accused her of data fabrication in four academic studies. Gino's suit followed an investigation by Harvard University, which concluded that the data in the studies were altered in ways that aligned with the authors' hypotheses. The investigation relied on forensic analysis and original datasets. In response, Gino alleged that she was unfairly targeted by a campaign of harassment orchestrated by the Defendants in coordination with Harvard.

Gino's own admissions during the Harvard investigation—including her acknowledgment that the posted datasets were inconsistent with originals, and her concession that she had no explanation for the discrepancies—undermine the premise of her later-filed defamation complaint. As the Defendants correctly note, it is not defamation to publish statements that are true or substantially true. In their motion, the Defendants provide extensive excerpts from the Harvard report and Gino's responses that show she acknowledged the presence of data alteration, even if she denied responsibility for it. Plaintiff's opposition does not meaningfully rebut the central facts. Rather, it attempts to relitigate the credibility of the Harvard investigation and the intentions of the Defendants.

Still, while it is true that federal courts possess inherent power to sanction bad-faith conduct, it is also true that that power must be exercised with restraint and only where it is clear a party has acted in bad faith, vexatiously, or for oppressive reasons. Here, Gino's defamation claims against the Data Colada Defendants were weak indeed; however, that does not necessarily equate to bad faith, vexatious, or oppressive….

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[Eugene Volokh] Abortion, Colorado River, and Interpleader

[The true superpower of the lawyer is to turn all questions into questions about procedure—often, about procedure about procedure.]

A short excerpt from today's long Braid v. Stilley, written by Seventh Circuit Judge Michael Scudder and joined by Chief Judge Diane Sykes and Judge Thomas Kirsch:

In September 2021 Dr. Alan Braid, a Texas OB/GYN, wrote an editorial in the Washington Post admitting he performed an abortion in violation of the Texas Heartbeat Act. Three individuals from three different states reacted by each invoking the citizen-suit enforcement provision of the Texas Heartbeat Act and seeking to recover at least $10,000 in statutory damages.

Now facing the prospect of duplicative liability, Dr. Braid made use of the federal interpleader statute, 28 U.S.C. § 1335, to join the claimants in a single suit. But, in an odd twist, he did not do so by going to any Texas federal court but instead by filing suit in federal court in Chicago. In addition to his interpleader claim, Dr. Braid sought declaratory relief, urging the district court to declare the Texas Heartbeat Act unconstitutional.

The district court dismissed Dr. Braid's entire suit, concluding that the existence of parallel state-court proceedings justified abstention under the Supreme Court's Wilton-Brillhart doctrine. Though we chart a different course of reasoning, we ultimately reach the same end point and therefore affirm the dismissal of Dr. Braid's federal case….

Like the district court, the parties, too, recognize that this case is far from an ordinary interpleader case which follows a similar and well-known pattern: "a neutral stakeholder, usually an insurance company or a bank," sues in federal court to force "all the claimants" to the policy or fund "to litigate their claims in a single action brought by the stakeholder." Congress originally limited our jurisdiction to this narrow set of claims, specifying that statutory interpleader applied only to actions brought by "any insurance company or fraternal beneficiary society."

But over time Congress expanded the remedy's availability, amending the statute in 1936 to make interpleader available to "any person, firm, corporation, association, or society … under any obligation written or unwritten to the amount of $500 or more" to which two or more adverse and diverse claimants assert entitlement. This amendment also extended the jurisdiction of the federal courts to actions "in the nature of interpleader," thereby "relax[ing]" some of the remedy's common-law requirements, including "that the stakeholder be neutral and that the conflicting claims have the same origin." …

The Seventh Circuit concluded that federal courts should apply so-called "Colorado River abstention" to leave the matter to state courts:

Colorado River authorizes federal courts to defer to parallel state-court proceedings in "exceptional" cases "where abstention would promote 'wise judicial administration.'" … We see several considerations weighing … heavily in favor of abstention …. Foremost, not only are the Texas courts capable of resolving Dr. Braid's claims, but they are also better suited, making the federal forum inconvenient. A fundamental problem with Dr. Braid's federal interpleader claim becomes readily apparent upon considering a question at its epicenter: how is a federal court to apportion damages among multiple competing S.B. 8 claimants? As the district court underscored, the Texas legislature provided no guidance on this issue, so any decision on this important question of state law would be little more than a shot in the dark given S.B. 8's deliberate uniqueness.

Taking a closer look at Dr. Braid's claims for declaratory relief, much the same problem persists …. [H]is constitutional challenges would require us to interpret S.B. 8 in the first instance, defining its contours and giving shape to the limitations it imposes on civil defendants—a question governed wholly by Texas law—before we can proceed to the second step and determine whether a particular dimension of the Act violates Dr. Braid's constitutional rights. To engage in this type of detailed analysis would require a federal court to answer novel state-law questions without a fulsome understanding of Texas procedure—including, for example, Texas's application of the constitutional avoidance and severability doctrines, to name a few issues—leaving us to reason on our back foot.

Against this backdrop, the risk of intrusion on federal-state comity is substantial, and we see no sufficient countervailing concern to justify federal court intervention. To the contrary, the state courts were the first to obtain jurisdiction over this controversy when the three plaintiffs sued Dr. Braid in Texas state court. And we are confident that the state courts, and perhaps ultimately the Texas Supreme Court, are much better positioned to resolve the full range of complex questions before us about S.B. 8's permissible application in circumstances like those pressed by Dr. Braid's multi-faceted constitutional challenge to the enactment. It strikes us as inevitable that the Texas courts in time will all but have to supply answers given the many suits filed by non-parties challenging the constitutionality of S.B. 8 as Dr. Braid does here.

Abstention also avoids the danger of piecemeal litigation and conflicting judgments, the very problem Dr. Braid seeks to avoid…. Abstaining is also appropriate considering that resolution of an issue of state law may moot Dr. Braid's federal suit, thereby providing for a cleaner and more efficient resolution of this litigation. While these federal proceedings have been ongoing, a Texas trial court dismissed plaintiff Gomez's state suit against Dr. Braid because it found he lacked standing under the Texas Constitution. The Texas Court of Appeals affirmed, stopping short of examining the merits of that conclusion. It stands to reason, then, that if a Texas court concludes that S.B. 8's citizen-suit provision falters under the Texas Constitution, there would be no need for any court, state or federal, to supply answers under the U.S. Constitution.

The court then concluded:

As a final note, and to state the obvious, this lawsuit reflects an element of forum-shopping. Dr. Braid, a Texas physician, has asked a federal court in Illinois to adjudicate his liability and pass upon the constitutionality of a Texas law, in part, to avoid resolving those same issues in the state-court system, which he characterizes as rigged against him.

We offer this observation not as a criticism, for there is no question S.B. 8 has put Dr. Braid in a difficult predicament. Our more limited observation is only to underscore that abstention is particularly appropriate in a case like this one where we see no connection between the subject matter of the controversy and the federal venue sought.

In the end, because Dr. Braid's federal claim would require the district court to wade into complex and unsettled questions of state law (with difficult federal constitutional claims waiting in the wings), and thereby disregard the existence of parallel state proceedings capable of providing the answers, we find that exceptional circumstances exist which warrant abstention under Colorado River.

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[Eugene Volokh] United Arab Emirates Sharia-Based Judgments in American Court

Back when the debate about foreign law—including especially Islamic law—in U.S. courts was in the news, I blogged quite a bit about it. I also wrote two law review articles on the subject, see Foreign Law in American Courts and Religious Law (Especially Islamic Law) in American Courts. My basic view was that:

American courts often rightly do consider foreign law and foreign judgments, because American law calls on them to do that; and it would generally be senseless for American law to categorically block American courts from doing that.That sometimes includes the judgments of religious courts, and judgments of foreign courts applying religious law that is part of the foreign legal system.In some situations, American courts should refuse to apply foreign or religious law, or enforce the judgments of foreign or religious courts—but existing American law already has the tools needed for that.

Here's a recent illustration of this (especially item 3) from CSHK Dubai Contracting LLC v. Ali, decided last week by a Texas Court of Appeals (opinion by Justice Dana Womack, joined by Justices Elizabeth Kerr and Dabney Bassel):

This dispute—which spans multiple decades, continents, and court systems—arises out of Appellant CSHK Dubai Contracting LLC's contract with Trident International Holdings FZCO to build a residential tower in Dubai. After a dispute arose between CSHK and Trident regarding Trident's payments under the contract, CSHK initiated several legal proceedings in Dubai against Trident and Trident's founders, Appellees Sadruddin Enayat Ali, Abdul Sultan Jamal, and Wazir Ali Daridia Ultimately, CSHK obtained a judgment (the Dubai Judgment) from a Dubai court awarding it … roughly $50 million …. Because Appellees resided in Texas following the entry of the Dubai Judgment, CSHK filed a lawsuit in the Texas trial court asking that the court recognize the Dubai Judgment under the Uniform Foreign-Country Money Judgments Recognition Act (the Act). See Tex. Civ. Prac. & Rem. Code Ann. § 36A.001 et seq.

So far, makes perfect sense: Texas law generally calls for enforcing foreign judgments, which is eminently sensible in our transnational commercial system. Texas courts must do this, not because of some abstract international law principles, but because they're faithfully following the command of the Texas Legislature.

But Texas law provides that sometimes a court may conclude that a foreign judgment shouldn't be enforced, including (to oversimplify slightly) when "the defendant in the foreign-court proceeding did not receive notice of the proceeding in sufficient time to enable the defendant to defend itself," "the judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment," or "the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process." And the court concluded that these exceptions were indeed present here:

[Expert witness Herbert] Wolfson also explained the important and unique role of experts in the Dubai court system. He stated that while parties may agree on the selection of an expert, the "normal practice is for the court to choose the expert, without input from the litigants, by assigning the case to the next name in line on a list of experts maintained by the Dubai [c]ourts." Indeed, according to Wolfson, Dubai courts are "under no obligation to consider or give weight to the testimony of a party-appointed expert," and "in the absence of agreement by all litigants, a person or firm that is not registered on the list of experts would not normally be permitted to provide expert testimony in a Dubai court."

Notably, Wolfson explained that "courts in Dubai typically adopt the report of court-appointed experts without scrutiny, copy-pasting findings of fact and even legal conclusions into the court's judgment." Wolfson stated that under this system, "even if the court-appointed expert has no legal training, their report generally winds up being outcome-determinative not only as to questions of fact but often as to questions of law." …

Wolfson also explained the role of Islamic law—or shari'a—in the Dubai court system. He stated that "the Constitution of the [U.A.E.] states that Islamic law is a principal source of legislation in the [U.A.E.]." He noted that the civil code relied on by CSHK in the underlying Dubai proceedings "requires judges to apply shari'a principles in cases where there is no express provision in the statutory text." He cited a provision in that code requiring judges to "adjudicate according to the Islamic [s]hari'a taking into consideration the choice of the most appropriate solutions in the schools of Imam Malek and Imam Ahmad Ben Hanbal and, if not found there, then in the schools of Imam El Shafe'i and Imam Abou Hanifa, as the interest so requires." He cited another provision in the civil code that provided that "[i]n understanding, interpreting[,] and construing the text [of a statute], the rules and fundamentals of Islamic doctrine shall be followed." {Wolfson also stated that judges in Dubai "must be Muslim" and "must have a degree in law, or in shari'a and law."} …

Here, the CASD Proceeding [a particular phase of the UAE court process] and the appointment of [Dr. Redha Darwish] Al Rahma as an expert in that proceeding was a critical moment in the various Dubai proceedings…. [Yet] Appellees were not served with process in that proceeding. During the CASD Proceeding, Al Rahma repeatedly met with CSHK's counsel and representatives but did not meet with Appellees. Al Rahma then made an expert report and a supplemental expert report, giving CSHK's counsel advanced copies of the report for review. Cf. Restatement (Fourth) of Foreign Relations Law § 484 cmt. j ("A pattern of ex parte contacts between the court and one side to the dispute or similar one-sided interventions might demonstrate a lack of fundamental fairness."). In his report, Al Rahma concluded that Appellees were responsible for the decline in Trident's assets and CSHK's inability to collect its two arbitration awards.

With Al Rahma['s] report in hand, CSHK filed suit in the Dubai CFI [Court of First Instance] and ultimately obtained the 2020 Judgment…. Appellees "were never permitted to submit a controverting expert report or assert defenses." They also indicated that they "were never permitted to litigate the merits of the claims asserted against [them]" and that they had "never been afforded the opportunity to interact" with Al Rahma. See Goldberg v. Kelly (1970) ("In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses."). And while Appellees retained an expert to controvert Al Rahma's findings, they stated that their expert "was not allowed to submit his report to the court for consideration." And there is no question that Al Rahma's report played a significant role in the Dubai Judgment….

Based on those facts, we do not think that the trial court erred or abused its discretion by finding that the specific Dubai proceedings raised doubt about the integrity of the court rendering the Dubai Judgment, were not compatible with the requirements of due process, and provided inadequate notice to Appellees.

I don't know the details of the case enough to tell whether the Texas courts made the right decision on these facts. But the general framework strikes me as quite right:

American law authorizes American courts to consider foreign judgments, including ones from countries which rely on Islamic law as part of their legal system. Such judgments may often be enforceable, and that makes perfect sense.American courts won't insist that the foreign legal system mirror ours. (For instance, most foreign civil justice systems don't use juries.)But American courts do require, because American law so specifies, that the foreign processes include sufficient procedural protections; and when those protections are missing, then American courts will find the foreign judgments unenforceable.

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