Phi Beta Cons

Re: Rachel’s Law

I’m a bit late to the party on this one, and while I support the law, I think it’s important to put it in perspective. I do not think it would significantly change how foreign libel judgments are handled, or provide academics with much more protection than they have now.

Today, each court system is pretty much on its own. In other words, if something is available in England (it’s irrelevant how many copies it sells, just like in America), you can sue the author there. That’s a pain and everything, but (A) it’s their country and their courts, and they should do with them as they please, and (B) what Rachel’s Law proponents gloss over is that even in the current system, U.S. courts normally do not enforce other countries’ libel judgments – particularly if they are inconsistent with the First Amendment. I am neither a lawyer nor a human encyclopedia, but I can’t find a single exception. In Matusevitch v. Telnikoff, for example, an American court explicitly refused to enforce a British libel judgment, and based its decision on the disconnect between British and American libel law.
Rachel Ehrenfeld herself points out that “the 1965 Uniform Foreign Money-Judgment Recognition Act allows the enforcement of foreign monitory judgments in the U.S.,” but declines to mention the de facto libel exception. In her case, she, not the person who sued her (and won) in Britain, brought the matter before the American court system. The court declined to get involved, because the person who’d sued her in Britain did not fall under the jurisdiction of American courts. She was never in danger of an American court demanding she pay up.
Now, this system came up spontaneously, and I’m first in line to support writing it into the law. That’s basically what Rachel’s Law does — explicitly states that before enforcing foreign libel judgments, U.S. courts must make sure they’re consistent with our own laws. I just don’t think it’s that dramatic a change from the status quo.

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