We move that the Institute disapprove the Reporters’ recommendation that Congress enact a federal statute governing the recognition and enforcement of foreign judgments, and that the Institute request the Reporters and the Council to modify the Proposed Final Draft in a manner consistent with the Institute’s disapproval of this recommendation.

In considering this motion, we submit that the Institute should ask itself three basic questions:

(1) Are we serious about federalism?

(2) Is the Proposed Final Draft a statute or a statement of principles?

(3) Do we want this Project to have any positive real-world impact?

If we are serious about federalism, then we will not recommend that Congress federalize an area of law that is presently governed by state law without satisfying ourselves that there are serious real-world problems that can only be solved by enacting a federal statute, with the attendant added burdens on the federal courts.

No such real-world problems have been demonstrated. If there were any such problems, Jeff Kovar of the State Department would be acutely aware of them. He has told us exactly the contrary. Here is what Jeff told the Institute last year:

The Reporters’ argument for federalizing this area of the law is essentially that there is a federal interest in the foreign relations of the United States. This argument proves far too much. Absent an applicable treaty, we do not federalize the law of contracts when a foreign contracting party is involved. We do not federalize the law of inheritance when a foreign beneficiary comes before the court. Except where there are applicable treaties, private law matters are governed by state law (including state conflict of laws principles), regardless of where the parties reside. While a Hague convention on the enforcement of judgments was being considered when this Project began, no such convention is likely now.

More generally, we do not federalize a whole area of the law simply because a federal interest is involved. Congress has undoubted power over interstate commerce, but it has never seen fit to enact an Interstate Commercial Code to supersede the Uniform Commercial Code in the area of interstate commerce.

The Institute has never before recommended the federalizing of an area of law hitherto governed by state law. The case has not been made for the Institute to do so here.

Two years ago, at the Annual Meeting in Chicago, Judge Frank Easterbrook warned the Reporters that a federal statute should contain all its operative provisions in its text, and that nothing of importance should be left to the legislative history. Director Lance Liebman repeated this admonition at the Annual Meeting last year.

The Reporters have not heeded this admonition. Like its predecessors, the Proposed Final Draft reads like a restatement, not a statute. Many important substantive points appear only in the Comments, and some appear only in the Reporters’ Notes.

As a result, the Proposed Final Draft is not suitable for enactment as a federal statute. In form as well as in substance, it is a statement of principles, not a statute. We should present it as such. By presenting the Project as a statement of principles — rather than presenting it as a federal statute which has no chance of enactment — we will give it a chance to influence the courts in their interpretation of the state statutes which will continue to govern this area of the law.

If your answer to this question is "No," then you should vote against the present motion, and you should vote for the Boskey motion to approve this Project in its present form.

At first blush, these statements may seem paradoxical. But their accuracy flows from two simple and essentially unarguable propositions.

First, there is no chance that Congress will enact the Project as a federal statute. There is no real-world constituency seeking this result, and the Institute’s approval of the Project will not create one. Careful readers of the Director’s Foreword to the Proposed Final Draft will have noted that even our perennially positive and optimistic Director is not predicting that Congress will pass a federal statute in this area.

Second, given that the Project will not be enacted as a federal statute, it necessarily follows that the Project’s only chance of having a real-world impact is by influencing the people who will continue to make and enforce the law in the area of the recognition and enforcement of foreign judgments: the courts that construe the state statutes in this area (or that fashion state common-law rules in the absence of statutes), and the National Conference of Commissioners on Uniform State Laws and the state legislatures that recommend and enact the state statutes in this area. Proclaiming (as the Reporters would have us do) that the changes we seek can only be attained by the enactment of a federal statute is the most effective way to ensure that we will have as little positive impact as possible on the people who will actually continue to make and enforce the law in this area.