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Publication Date

2011

Abstract

If foreign states are not "persons"under the Due Process
Clause, do foreign state-owned corporations still enjoy the
same protections as their privately owned counterparts?
This is an important question because state-owned entities
are a prevalent fixture in an increasingly global economy.
Courts confronted with the issue, however, have attempted
to resolve it by resorting to a policy-based analysis. In
doing so, they have distorted fundamental constitutional
principles.
This Note explains this distortion by discussing the
trend among leading courts of not recognizing states as
"persons" under the Due Process Clause and by examining
the meaning of "foreign state" under the Constitution and
the history of the foreign sovereign immunity doctrine.
Scholars who have addressed the issue take the position
that if a state-owned corporation behaves as an
independent juridical entity it should be treated as its
private counterpart for due process purposes. This Note
explains that, although such a position makes sense for
policy purposes, all state-owned corporations are
indistinguishable from their state owner for constitutional
purposes. As a result, if foreign states are not 'persons,"
neither are the entities they own, regardless of how they
behave. The remedy, therefore, lies not through the
Judiciary but through legislative amendment of the
Foreign Sovereign Immunities Act.

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