Means/Ends Reciprocity in the Act of State Doctrine


Calls for reform of the act of state doctrine, as an effort to provide more determinacy in its application, are often misconceived. Heretofore, the dominant mode of critical analysis made use of a traditional means/ends framework and found fault with the doctrine’s indeterminate nature and discretionary application by trial courts. However, the growing body of scholarship utilizing legal pragmatism as an analytic tool provides an opportunity to reassess the act of state doctrine in a new light. A traditional means/ends framework proves unhelpful for a thorough examination of the act of state doctrine’s utility in United States courts. Rather, analysis of the act of state doctrine will benefit most from confronting the question of the Judiciary’s pragmatic power itself as the significant theoretical dilemma at stake in any discussion of the doctrine’s application. This Note attempts to place the act of state doctrine’s rationales in context and demonstrate that reliance on the traditional means/ends framework for critical analysis is illusory.