Not-so-Great Weight: Treaty Deference and the Article 10(a) Controversy

Abstract

For the past twenty-one years, federal courts interpreting Article 10(a) of the Hague Service Convention have arrived at opposite conclusions about whether the provision authorizes litigants to serve process on foreign defendants directly through the mail. The dispute arises because of ambiguous wording in the Article, which states that litigants may “send judicial documents” by mail, but says nothing of “service.” At first blush, the dispute appears to turn on dueling principles of statutory interpretation: courts that adhere rigidly to text do not allow direct mail service, whereas courts that look past text, to intent, do. This Note argues, however, that the controversy is explained by a problem particular to treaty interpretation: when the executive branch renders its opinion on the meaning of a treaty, federal courts do not have a principled standard by which to weigh the amount of deference due to this opinion. This Note argues that the Skidmore standard, of administrative law, best fills the gap.