This article argues that the oft-criticized act of state doctrine is much more useful and beneficial than its numerous critics believe. The act of state doctrine is a judicially created principle of abstention: courts may decline to hear cases that question the validity of a foreign state’s sovereign act. The doctrine is accused of being poorly justified and inconsistently applied. Critics also complain that the doctrine is used to deny plaintiffs justice in otherwise worthy human rights, antitrust and commercial litigation. This article debunks both of those claims and provides a framework for understanding act of state decisions that will enable academics and practitioners to more reliably predict how courts will apply the doctrine in the future. 

Section I provides a quick explanation of the doctrine and its history. Section II is an extensive analysis of precedent. That analysis reveals that the doctrine is well-justified by courts that are hesitant to hear certain cases and will irrevocably harm relations between the United States and other countries. Section II also disproves the notion that the doctrine is being applied inconsistently. When courts decide whether to apply the doctrine, they respond systematically to the certain factors, such as whether the dispute involves oil reserve management, charges of corruption, or human rights abuses. Even better, courts rarely use the doctrine to deny relief in egregious cases – plaintiffs alleging serious human rights abuses, for example, are almost always allowed to proceed. Section III examines several recent act of state cases and verifies that the model developed in Section II accurately explains how courts apply the doctrine. Section IV examines several reform proposals and finds them unnecessary or counterproductive; instead, the doctrine should be left as it is today.