In 1825, Chief Justice Marshall held in The Antelope that (t)he courts of no country execute the penal laws of another. Since then, United States Courts have painstakingly crafted a variety of definitions of the word penal in order to help determine when and when not they should apply foreign laws or execute foreign judgments which conceivably might be characterized as penal. Much of their hairsplitting analysis might have been avoided if American judges and commentators had looked behind Marshall's phrase to see its foundations in law and policy. After reviewing the accepted wisdom about The Antelope's penal law exception, this article looks at the exception in context. Drawing upon the cases argued by counsel, the article argues that Marshall did not frame the exception with any unelaborated definition of penal law in mind. Rather, Marshall sought to restrain the courts from infringing upon another state's sovereign authority, especially when what was at issue was a state's right to benefit by the execution of its public law.
Janis, Mark Weston, "The Recognition and Enforcement of Foreign Law: The Antelope's Penal Law Exception" (1986). Faculty Articles and Papers. 112.