Gardner Parochial Procedure Draft for CPW...2 Parochial Procedure [16-Jun-15 suits.3 Other scholars...

PAROCHIAL PROCEDURE

Maggie Gardner* Introduction ............................................................................................................................ 1 I. Parochial Disequilibrium in Private International Law ................................................ 7 II. The Parochial Critique ..................................................................................................... 12

A. Forms of Parochialism ............................................................................................. 12 B. Costs of Parochialism ............................................................................................... 16 C. Complicating the Critique ....................................................................................... 19

III. Unintended Parochialism ............................................................................................... 20 A. Complexity and the Search for Rubrics ................................................................ 21 B. Myopia and Miscalibration ...................................................................................... 24 C. Uncertain Facts and Ossified Factors .................................................................... 25

IV. When Is Procedure Parochial? ...................................................................................... 28 A. The Hague Evidence Convention .......................................................................... 28 B. Forum Non Conveniens .......................................................................................... 44 C. The Hague Service Convention .............................................................................. 52 D. Recognition of Judgments ...................................................................................... 60

V. Avoiding Parochial Procedure ........................................................................................ 63 Conclusion .............................................................................................................................. 67

INTRODUCTION

When it comes to transnational litigation, are the federal courts isolationist or imperialist? Some scholars worry that the courts are shirking cases that involve foreign litigants, foreign laws, or foreign harms.1 That avoidance, they argue, has been powered by the Supreme Court’s narrowing of jurisdictional doctrines2 and the heavy use of forum non conveniens to dismiss transnational

* Climenko Fellow and Lecturer on Law, Harvard Law School. For valuable comments

and suggestions, I am grateful to Oren Bar-Gill, Sergio Campos, John Coyle, Dan Epps, Erica Goldberg, Jack Goldsmith, Susannah Barton Tobin, Adrian Vermeule, Andrew Woods, and the participants at the Junior International Law Scholars Association Annual Meeting (Miami) and the Climenko Workshop. Tarek Austin, Amanda Claire Grayson, and Rebecca Schindel provided truly exceptional research assistance.

1 See, e.g., Pamela K. Bookman, Litigation Isolationism, 67 STAN. L. REV. 1081 (2015); John F. Coyle, The Case for Writing International Law into the U.S. Code, 56 B.C. L. REV. 433, 434–35 (2015); Walter W. Heiser, Forum Non Conveniens and Choice of Law: The Impact of Applying Foreign Law in Transnational Tort Actions, 51 WAYNE L. REV. 1161, 1189, 1192 (2005); Elizabeth T. Lear, National Interests, Foreign Injuries, and Federal Forum Non Conveniens, 41 U.C. DAVIS L. REV. 559 (2007); Cassandra Burke Robertson, Transnational Litigation and Institutional Choice, 51 B.C. L. REV. 1081, 1084 (2010).

2 See Bookman, supra note 1; Stephen B. Burbank, International Civil Litigation in U.S. Courts: Becoming a Paper Tiger?, 33 U. PA. J. INT’L L. 663 (2012); Jodie A. Kirshner, Why is the U.S. Abdicating the Policing of Multinational Corporations to Europe: Extraterritoriality, Sovereignty, and the

2 Parochial Procedure [16-Jun-15

suits.3 Other scholars lament how U.S. courts see the world through U.S.-colored lenses, reaching abroad too easily to assert jurisdiction, compel discovery, or block foreign proceedings,4 or jumping too quickly to judge the quality of other states’ judges.5 Running through and alongside these critiques is a third concern, that U.S. courts shun foreign and international law even when statutes, treaties, or choice of law principles call for its application.6

Though somewhat in tension,7 these accounts are united by a concern that the federal courts have become too parochial. Parochial courts favor domestic law to the exclusion of foreign or international law and favor their own nationals at the expense of foreigners, whether out of principle or due to chauvinism. They create disequilibrium within the system of private international law, undermining the rough reciprocity on which the United States depends. According to what I call the “parochial critique,” the federal

Alien Tort Statute, 30 BERKELEY J. INT’L L. 259, 261 (2012); see also Peter B. Rutledge, With Apologies to Paxton Blair, 45 N.Y.U. J. INT’L L. & POL. 1063, 1071–72 (2013) (noting trend in Supreme Court jurisdictional case law).

3 “The motion is not only filed, but also granted, in nearly every case.” Walter W. Heiser, Forum Non Conveniens and Retaliatory Legislation: The Impact on the Available Alternative Forum Inquiry and on the Desirability of Forum Non Conveniens as a Defense Tactic, 56 U. KAN. L. REV. 609, 609 (2008); see also, e.g., Donald Earl Childress III, Forum Conveniens: The Search for a Convenient Forum in Transnational Cases, 53 VA. J. INT’L L. 157, 169 (2012) (finding motions to dismiss for forum non conveniens were granted in forty-eight percent of reported cases between 2007 and 2012); Joel H. Samuels, When is an Alternative Forum Available - Rethinking the Forum Non Conveniens Analysis, 85 IND. L.J. 1059, ? (2010) (finding a forty-one percent dismissal rate among published cases between 1982 and 2007); Christopher A. Whytock, The Evolving Forum Shopping System, 96 CORNELL L. REV. 481, 502 (2010) (finding a forty-seven percent dismissal rate among published cases between 1990 and 2005).

4 See, e.g., Stephen B. Burbank, A Tea Party at the Hague, 18 SW. J. INT’L LAW 629, 631 (2011); Hannah Buxbaum, Assessing Sovereign Interests in Cross-Border Discovery Disputes: Lessons from Aerospatiale, 38 TEX. INT’L L.J. 87, 93–98 (2003) (critiquing courts’ lack of sensitivity to systemic concerns in managing cross-border discovery disputes); Paul R. Dubinksy, Is Transnational Litigation a Distinct Field - The Persistence of Exceptionalism in American Procedural Law, 44 STAN. J. INT’L L. 301, 308 (2008) (identifying “U.S. exceptionalism” in how U.S. courts approach transnational problems through the lens of U.S. law); Austen L. Parrish, Reclaiming International Law from Extraterritoriality, 93 MINN. L. REV. 819, 845–49 (2009); Linda J. Silberman, Developments in Jurisdiction and Forum Non Conveniens in International Litigation: Thoughts on Reform and a Proposal for a Uniform Standard, 28 TEX. INT’L L.J. 501, 524–26 (1993).

5 See, e.g., Montre D. Carodine, Political Judging: When Due Process Goes International, 48 WM. & MARY L. REV. 1159 (2007) (criticizing judicial evaluations of other countries’ legal systems in the context of enforcing foreign judgments); see also Peter B. Rutledge, Toward a Functional Approach to Sovereign Equality, 53 VA. J. INT’L L. 181, 182–84, 188 (2012) (listing doctrines that require U.S. judges to evaluate foreign judiciaries).

6 See, e.g., Coyle, supra note 1, at 434–35, 442–46; Oona A. Hathaway et al., International Law at Home: Enforcing Treaties in US Courts, 37 YALE J. INT’L L. 51 (2012); Heiser, supra note 1, at 1189; Patrick M. McFadden, Provincialism in United States Courts, 81 CORNELL L. REV. 4 (1995); Matthew J. Wilson, Demystifying the Determination of Foreign Law in U.S. Courts: Opening the Door to a Greater Global Understanding, 46 WAKE FOREST L. REV. 887, 890–91 (2011).

7 For further discussion, see Part II.A, infra.

16-Jun-15] DRAFT – Do Not Circulate 3

courts’ parochialism has provoked retaliation by foreign courts and legislatures, created access-to-justice gaps, increased regulatory conflict, and pushed transnational litigation from U.S. courts into foreign ones, a shift not perceived to be in the economic interests of U.S. parties.8

I agree with the core of this critique, that federal courts have lost sight of the systemic costs of their decisions in transnational cases. But why are the courts parochial? The standard assumption, whether explicit or implied, is that we have parochial courts because we have parochial judges—judges who are dismissive of foreigners and hostile to international or foreign law.9 The battle, then, is for the hearts and minds of U.S. judges. To fix the courts’ parochialism, the literature suggests, we must convince individual judges of the value of international law and a smoothly functioning system for resolving transnational disputes, whether through normative suasion or by redefining national interest.10 These converted judges should then be given adequate discretion to account for international and systemic interests.11 But this standard account is not entirely satisfying. For one thing, individual judges and discrete decisions already demonstrate sensitivity to international law and comity concerns. Greater judicial training and socialization may be helping, but it may not be enough on its own. Further, this judge-focused account has overlooked the institutional context in which judges operate12—considerations that might mean that greater discretion is not a solution, but part of the problem.

This Article refocuses the debate at a broader, and I believe more constructive, level. The current trope of parochial judges may be a fallacy of division: an assumption that the whole is the same as its component parts.13

8 See Part II.B, infra. 9 See Part II.C, infra. 10 See, e.g., Lear, supra note 1 (arguing that use of forum non conveniens is contrary to U.S.

national interest); S.I. Strong, Recognition and Enforcement of Foreign Judgements in U.S. Courts: Problems and Possibilities, 33 REV. LITIG. 45, 51 (2014) (urging reform of the U.S. approach to foreign judgment recognition because ambiguity in the doctrine has long-term economic consequences for the United States and its citizens); see also Elizabeth T. Lear, Federalism, Forum Shopping, and the Foreign Injury Paradox, 51 WM. & MARY L. REV. 87 (2009) (framing invocation of forum non conveniens by federal courts as contrary to federalism values).

11 See Coyle, supra note 1, at 462–68 (collecting but critiquing such proposals). 12 Although John Coyle has likewise noted the need for a structural response to judicial

parochialism, the problem he identifies is still rooted in the literature’s concern about judicial attitudes and ignorance, and the solution he proposes is more firmly rooted in legislative rather than judicial rulemaking. See id. at 435–37 & n.19 (arguing for the statutory incorporation of international law). On this latter question—of which institutional actor should structure decisionmaking rubrics in this context—I am agnostic, though I note that the sort of staged decisionmaking I propose here has often resulted from constructive dialogue across courts, legislatures, and agencies.

13 See Adrian Vermeule, System Effects and the Constitution, 123 HARV. L. REV. 4, 6–8 & n.6 (2009) (describing both fallacies of division, where what is true of the aggregate is assumed to be true of individual members, and fallacies of composition, where what is true of members is


Even if the courts are parochial in the aggregate does not mean that individual judges are parochial; if this is so, correcting for parochial judges may not fix our parochial courts. I suggest that judicial parochialism may instead be unintentional, the outcome over time of decisions by trial judges who hold neutral or even cosmopolitan conceptions of foreign and international law and foreign litigants, but who operate within well-recognized institutional and behavioral constraints and whose deisions create mounting path dependance towards parochial outcomes.

Transnational cases—meaning cases involving parties foreign to the forum—are complex. They typically require judges to deal with unfamiliar law, whether international or foreign; to account for multiple layers of competing state interests; and to find foreign facts that strain courts’ informational capacity. Yet judges have limited time and resources, and humans cannot process boundless complexity. Given the behavioral and institutional constraints on judges, I argue that unguided discretion in this context will predictably lead to parochial procedur due to three pressures: judges grasping for a touchstone to help guide their analysis in a complex and unfamiliar area of law are at risk of transplanting poorly fitting tests; miscalibrating the factors within those tests; and relying on generalized assertions and prior precedent in lieu of real factfinding.14

These errors will not be neutral in effect. First, in the search for rubrics, courts will discount the balance of sovereign and systemic interests already struck by the political branches: if that balance is not initially treated as the controlling default, then judges will assume that a heightened showing is needed to overcome the U.S.-centric status quo. Second, human myopia will cause judges to miscalibrate the test in favor of local interests and familiar procedures. It is helpful here to distinguish between normatively bad parochialism that reflects animus or chauvinism (as the term is used throughout this Article) and a more colloquial understanding of “parochial” as simply a preference for the familiar, the concrete, and the immediate. Cognitive psychology suggests we are all prone to the latter, which is not necessarily a bad thing. But when judges, in deciding individual cases, attempt to fashion rubrics to guide their analysis, this human tendency to focus on the particular will tilt the framework systematically in favor of U.S. interests and U.S. law. That tilt is then further locked in as judges, operating with limited time and information, generalize and ossify difficult-to-ascertain factors. Because factors meant to protect international comity, like the weighing of sovereign interests, systemic effects, and foreign facts, are precisely the sort of factors that strain judicial capacity, such factors will become nearly meaningless in application. The emerging rubrics will thus turn on case-specific considerations like delay, economy, judicial administration, and

assumed to be true of the whole).

14 For futher elaboration, see Part III, infra.


perceptions of gamesmanship—a miscalibration that will skew results in the aggregate towards a preference for familiar U.S. law and against difficult transnational cases. The irony is that cosmopolitan judges applying these tests in the name of protecting the rough reciprocity of private international law may nonetheless reach parochial results.

To illustrate these dynamics, the Article looks at four procedural aspects of transnational cases: the discovery of evidence located abroad under the Hague Evidence Convention (“Evidence Convention”),15 motions to dismiss for forum non conveniens, service of process on defendants located abroad under the Hague Service Convention (“Service Convention”),16 and the recognition of foreign judgments. 17 As an initial matter, all four doctrines cast doubt on the assumption that our courts are parochial because our judges are parochial. The aggregated practice of the courts regarding the Service Convention and the recognition of foreign judgments is simply not “parochial”: U.S. courts routinely recognize the judgments of other countries and typically require strict compliance with the Service Convention when it comes to serving process on defendants located abroad. In contrast, while the courts’ use (or non-use) of the Evidence Convention and their willingness to dismiss for forum non conveniens is also not uniformly parochial, the aggregated effect of both doctrines decidedly favors U.S. law and U.S. parties: the federal courts never require use of the Evidence Convention to resolve interparty disputes, and they have been consistently criticized for excessive invocation of forum non conveniens as grounds for dismissing transnational cases. Why the difference?

These four examples suggest that parochial procedure is more likely to develop when courts start with an open-ended standard or a multifactor balancing test coupled with broad trial court discretion. When paired with the legal and factual complexity of transnational litigation, such starting points can spur miscalibrated rubrics and ossified factors that ultimately undermine the very values that the initial standards and balancing tests sought (or at least proclaimed) to protect. The solution need not be strict rules, however, that remove all discretion from trial judges. The Service Convention and foreign judgment recognition illustrate the potential effectiveness of pro-comity presumptions and decisional ordering that conserve judicial discretion for unusual cases.

In reaching this conclusion, the Article makes three significant contributions in the debate over the role of U.S. courts in the global economy. First, it identifies the parochial critique as a unifying theme in the literature,

15 Hague Evidence Convention, 847 U.N.T.S. 231. 16 Hague Service Convention, 658 U.N.T.S. 163. 17 The recognition and enforcement of foreign judgments are distinct judicial actions,

though the terms are sometimes used interchangeably. Here the focus will be on the recognition of foreign judgments as the preliminary and more procedural step in judgment enforcement.


and in doing so, it highlights how that critique is still incomplete. Second, it provides a close descriptive account of district court practice in two routine aspects of transnational litigation that have nonetheless received little scholarly attention: the application of the Hague Evidence Convention and the Hague Service Convention.18 And third, the Article reorientates the debate over parochialism to account for structural constraints, which leads to new prescriptive insights (namely, moving from standards towards rules19 and from unguided discretion towards channeled discretion) that run counter to and perhaps even conflict with current standard proposals.

I start in Part I by describing the informal system of private international law and its reliance on rough reciprocity over the long run. That Part stresses the risk of jurisdictional conflict in transnational cases and the critical role of international comity in balancing jurisdictional claims. Part II identifies the parochial critique as a unifying theme in the literature. Although I agree with much of the critique, I begin here to challenge the critique’s casual causal assumption that parochialism is primarily the result of parochial judges.

Part III sets out the primary theoretical contribution of the Article: how the interaction between judicial constraints and the context of transnational litigation can result in unintentional parochialism in the aggregate. Here I explore the pressures that lead judges to seek out but miscalibrate rubrics and then ossify factors. Part IV maps the theoretical argument onto the district courts’ experience with four doctrines of transnational procedure. Part V moves from the descriptive to the prescriptive, generalizing from the doctrinal examples to identify features of structured decisionmaking that may prevent

18 Following the initial criticism of Société Nationale Industrielle Aerospatiale v. U.S. District

Court for the Southern District of Iowa, 482 U.S. 522 (1987), the literature on the Evidence Convention has been comprimsed primarily of the work of Gary Born, see Gary B. Born, The Hague Evidence Convention Revisited: Reflections on Its Role in US Civil Procedure, 57 LAW &

CONTEMP. PROBS. 77 (1994); Gary B. Born & Scott Hoing, Comity and Lower Courts: Post-Aerospatiale Applications of the Hague Evidence Convention, 24 INT’L L. 393 (1990), and a symposium hosted by the Texas International Law Journal, see, e.g., Patrick J. Borchers, The Incredible Shrinking Hague Evidence Convention, 38 TEX. INT’L L.J. 73 (2003); Buxbaum, supra note 4; James A.R. Nafziger, Another Look at the Hague Evidence Convention After Aerospatiale, 38 TEX. INT’L L.J. (2003). Student commentary has been much more extensive. For recent, helpful analysis, see …

Even less has been written about the Service Convention. See, e.g., Michael O. Eshleman & Stephen A. Wolaver, Prego Signor Postino Using the Mail to Avoid the Hague Service Convention’s Central Authorities, 12 OR. REV. INT’L L. 283 (2010); Eric Porterfield, Too Much Process, Not Enough Service: International Service of Profess under the Hague Service Convention, 86 TEMP. L. REV. 331 (2014). For student commentary, see for example …

19 The standard literature includes FREDERICK F. SCHAUER, PLAYING BY THE RULES: A

PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE (1991); Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557 (1992); Russell B. Korobkin, Behavioral Analysis and Legal Form: Rules vs. Standards Revisited, 79 OR. L. REV. 23 (2000); Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22 (1992).


unintentional parochialism. My goal is to move away from disparaging judges by recognizing instead the constraints within which they operate; at the same time, I am not arguing for removing all discretion that allows judges to be sensitive in individual cases to fairness, efficiency, and equity. Between the sea of standards and the restrictiveness of rules, structured decisionmaking can channel judicial discretion to the marginal cases without those marginal cases overtaking—and distorting—the median.

I. PAROCHIAL DISEQUILIBRIUM IN PRIVATE INTERNATIONAL LAW

International trade requires systems for resolving cross-border disputes. The rules of private international law, as they coalesced in the late 1800s, have grown into one such system, based in domestic courts and managed through principles of international comity, meaning the duty (though not quite the obligation) to accommodate other states’ jurisdictional interests.20 It is backed by political commitments, including bilateral treaties that guarantee foreign traders access to domestic courts21 and multilateral treaties that smooth the practical aspects of litigation.22 Unlike international criminal law, there is no assertion of supranational authority; private international law (like much of public international law) is a horizontal system, not a vertical one. As a result, its viability depends on a rough reciprocity between states, a jurisdictional give-and-take that comes out approximately (though not perfectly) even over the long run. That system is jeopardized, however, when U.S. courts either abdicate their role in transnational adjudication or overextend claims of U.S. jurisdiction.

As a starting point, picture the jurisdiction of sovereign states in terms of overlapping pools. Especially since the communication and transportation revolutions in the late 1800s,23 multiple states may have an interest in a given dispute, whether based on the location of the relevant conduct, the nationality of the parties, or some other nexus.24 This is both good and bad from a

20 See Hilton v. Guyot, 159 U.S. 113, 163-64 (1895); Societe Nationale Industrielle

Aerospatiale v. U.S. Dist. Court for the S. District of Iowa, 482 U.S. 522, 543 n.27 (1987); see generally Donald Earl Childress III, Comity as Conflict: Resituating International Comity as Conflict of Laws, 44 U.C. DAVIS L. REV. 11 (2010) (describing the origins and evolution of comity as the foundation for private international law).

21 See John F. Coyle, The Treaty of Friendship, Commerce and Navigation in the Modern Era, 51 COLUM. J. TRANSNAT’L L. 302, 307, 314 (2012); Allan Jay Stevenson, Forum Non Conveniens and Equal Access under Friendship, Commerce, and Navigation Treaties: A Foreign Plaintiff’s Rights, 13 HASTINGS INT’L & COMP. L. REV. 267, 282–83 (1990).

22 See the description of the Hague Conference for Private International Law, infra. 23 On the de-linking of jurisdiction and territoriality that accompanied these trends, see

generally KAL RAUSTIALA, DOES THE CONSTITUTION FOLLOW THE FLAG?: THE EVOLUTION

OF TERRITORIALITY IN AMERICAN LAW (2011). 24 On the nexuses that can establish adjudicatory jurisdiction, see RESTATEMENT (THIRD)

OF FOREIGN RELATIONS LAW § 421 (1987). The pools of jurisdiction are even more clearly defined in the context of prescriptive jurisdiction, or the state’s power to regulate certain


systemic perspective. Overlapping pools of jurisdiction reduce the risk of interstices—of regulatory or access-to-justice gaps—where litigants could find themselves without remedy. But they increase the risk of conflict between states, as well as uncertainty for private parties as to which rules will govern (and which courts will do the governing). Overreaching by one state can, in turn, prompt the unaccommodated state to retaliate, in particular by refusing to accommodate the overreaching state’s interests in future cases. This general concern for retaliation encourages states and their courts to exercise some restraint in displacing foreign law in transnational disputes, whether in terms of personal jurisdiction, choice of law, or recognition of a foreign court’s prior judgment.

The balance need not be perfect; indeed, it is often assumed that domestic courts will favor the interests of their home forum.25 A very rough reciprocity, in which courts and their governments account broadly for other states’ interests, is sufficient to maintain a functioning system over the long run. Nor will the role of every state be the same: nations like the United States with strong judiciaries, a dominant economy, and a willingness to assert broad prescriptive jurisdiction will have a larger role to play in the system of private international law, and overreaching or abdication by their courts will more quickly set off international alarms. The reactions generated by these alarms in turn can jeopardize the informal give-and-take on which the system depends, or (more optimistically) lead to its recalibration.

The concept of international comity embodies this rough reciprocity. “Comity” is a notoriously slippery term, taking on different meanings in different contexts.26 This Article understands comity to mean the accommodation of other states’ jurisdictional interests based not on legal obligation, but on long-term reciprocal interest.27 Under this cooperative

conduct or actors. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 402 (1987). In that context as well, the margins of those pools—where they overlap with other states’ arguable prescriptive authority—can be the site of controversy and conflict. See Maggie Gardner, Channeling Unilateralism, 56 HARV. INT’L L.J. ? (2015). The Restatement (Third) of Foreign Relations Law’s reasonableness requirement represents an effort to manage such concurrent jurisdiction. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW §§ 403, 421(1) (1987).

25 Consider in this regard Brainerd Currie’s conclusion that courts should apply forum law whenever there is a “true” conflict between states’ interests. See Childress III, supra note 20, at 45 (discussing Currie’s work).

26 See, e.g., N. Jansen Calamita, Rethinking Comity: Towards a Coherent Treatment of International Parallel Proceedings, 27 U. PA. J. INT’L ECON. L. 601 (2006); Joel R. Paul, Comity in International Law, HARV. INT’L L.J. 1 (1991); Michael D. Ramsey, Escaping “ International Comity,” 83 IOWA L. REV. 893 (1997). For a recent, admirable effort to clarify the concept of comity, see William S. Dodge, International Comity in American Law, SSRN Scholarly Paper ID 2558175 (Jan. 30, 2015) (defining comity as “deference to foreign government actors that is not required by international law but is incorporated in domestic law”).

27 A difference between this working definition and Hilton’s definition of comity is that Hilton called for case-specific reciprocity, which is actually not a great way to ensure systemic


conception of comity, the institutions of one state help effect the law or interests of another state.28 In the twentieth century, however, comity came increasingly to be associated with restraint or abstention: courts concerned about their “inability … to gauge the precise implications of their decisions for the delicate subject of foreign relations” invoked comity as a reason to avoid deciding cases with international elements.29 But such comity-as-abstention ignores that foreign states’ interests—and thus U.S. foreign relations—are often better protected through judicial accommodation than through judicial abdication.30

For present purposes, it is enough to emphasize that comity has not traditionally been a doctrine of restraint; the systemic equilibrium it embodies may best be served at times through affirmative acts like the recognition of foreign judgments, the application of foreign law, or the guarantee of a forum of necessity.31 Throughout the 1800s, for example, U.S. courts routinely invoked and applied foreign law in transnational disputes regarding contracts, property, and corporate organization.32 As early as the 1850s, Congress explicitly authorized the federal courts to assist foreign judicial proceedings, at least in some circumstances, by compelling witness testimony.33 And in 1895, the U.S. Supreme Court famously invoked comity to justify a strong default presumption in favor of enforcing foreign judgments.34

Starting in the late nineteenth century, states sought to codify aspects of this informal reciprocity, first through bilateral agreements and then through multilateral conferences.35 In 1889, South American states convened in

reciprocity. See John F. Coyle, Rethinking Judgments Reciprocity, 92 N.C. L. REV. 1109 (2014). As for the distinction between comity and obligation, the line between them can be blurry: deference based on comity can develop over time into customary international law, meaning that it takes on the force of legal obligation. See Dodge, supra note 26.

28 On comity’s affirmative role in managing jurisdictional conflicts and “maintain[ing] a functional international system,” see Buxbaum, supra note 4, at 90; see also id. at 88 (describing the concept of “positive comity”).

29 Michael P. Van Alstine, Stare Decisis and Foreign Affairs, 61 DUKE L.J. 941, 970 (2012); cf. Jack L. Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U. COLO. L. REV. 1395, 1402, 1408 (1999) (discussing post-World War II foreign relations doctrine as over-correcting for structural constitutional concerns by encouraging ad hoc judicial abstention).

30 Cf. Anne-Marie Slaughter, Judicial Globalization, 40 VA. J. INT’L L. 1103, 1113–15 (2000) (predicting trend away from comity-as-deference due to the demands of global integration).

31 Cf. Dodge, supra note 26 (distinguishing between comity doctrines based on “restraint” and those based on “recognition”).

32 See id. at 19 [draft]. 33 I BRUNO A. RISTAU, INTERNATIONAL JUDICIAL ASSISTANCE, at § 1–1, at 1–2 (Supp.

No. 1 ed. 1986). 34 Hilton v. Guyot, 159 U.S. 113 (1895); see also Louise Ellen Teitz, The Story of Hilton: From

Gloves to Globalization, in CIVIL PROCEDURE STORIES 445, 447–48 (Kevin M. Clermont ed., 2nd ed. 2008) (describing evolution of enforcement of foreign judgments over course of the nineteenth century).

35 See Harvard Research in International Law, Draft Convention on Judicial Assistance, 33 AM.


Montevideo to adopt several conventions on private international law,36 and continental European states gathered for the First Hague Conference on Private International Law in 1893 to discuss the standardization of conflict rules, family law, and civil procedure for transnational cases.37 The Hague Conference’s first convention on judicial assistance in transnational cases was adopted in 1894 and replaced in 1905 with a convention that is still in force today (at least among some states) and is the precursor to the Evidence Convention and Service Convention.38 More than 140 countries are currently involved in the Hague Conference, which is responsible for thirty-eight international private law conventions now in force.39

The United States, however, did not join the Hague Conference until the Cold War. By that time, growing transnational litigation in U.S. courts, reflecting increased global trade after World War II, was becoming a source of international friction. U.S. judges were interpreting U.S. laws, particularly the antitrust laws,40 to reach more extraterritorial conduct based on its effects within the United States, which triggered diplomatic protests.41 And as U.S. courts heard more transnational cases, “[i]t was soon evident that the rest of the world was not willing to accept some of the American legal procedures.”42 In particular, court orders compelling broad U.S.-style discovery from foreign litigants provoked much hostility.43 In response, France (followed by other states) adopted “blocking statutes” that prohibited the production of certain

J. INT’L L. SUPP. 11, 27 (1939).

36 Kurt H. Nadelmann, The United States and The Hague Conference on Private International Law, 1 AM. J. COMP. L. 268, 270 (1952).

37 RISTAU, supra note 33, at § 1–2, at 5; Georges A.L. Droz, A Comment on the Role of the Hague Conference on Private International Law, 57 LAW & CONTEMP. PROBS. 3, 3 (1994).

38 Droz, supra note 37, at 3–4; see also RISTAU, supra note 33, at § 1–2, at 6. 39 See Overview, Hague Conference on Private International Law,

http://www.hcch.net/index_en.php?act=text.display&tid=26 (last visited May 28, 2015). 40 See, e.g., Austen L. Parrish, Kiobel, Unilateralism, and the Retreat from Extraterritoriality, 28

MD. J. INT’L L. 208, 217 (2013). 41 See, e.g., GARY BORN & PETER B. RUTLEDGE, INTERNATIONAL CIVIL LITIGATION IN

UNITED STATES COURTS 680–82, 971–72 (5th ed. 2011). The paradigmatic case adopting the effects principle—that a U.S. court could assert jurisdiction over extraterritorial conduct based on the harms it caused within the United States—is Judge Learned Hand’s Alcoa decision. See United States v. Aluminum Co. of Am. (Alcoa), 148 F.2d 416 (2d Cir. 1945). Although the effects principle rose to prominence through judicial interpretation, Congress has since explicitly embraced the power to reach foreign conduct based on effects, constructive presence, or similarly attenuated territorial ties. See, e.g., Gardner, supra note 24, at ? (describing congressional assertions of jurisdiction under Foreign Corrupt Practices Act amendments and maritime drug trafficking laws); Sarah C. Kaczmarek & Abraham L. Newman, The Long Arm of the Law: Extraterritoriality and the National Implementation of Foreign Bribery Legislation, 65 INT’L

ORG. 745, 748–49 (2011). 42 Joseph F. Jr. Weis, The Federal Rules and the Hague Conventions: Concerns of Conformity and

Comity, 50 U. PITT. L. REV. 903, 903 (1989). 43 See, e.g., Born & Hoing, supra note 18, at 395.


types of evidence located within the state’s territory for use in U.S. litigation.44 As famously summarized in the Restatement (Third) of Foreign Relations, “[n]o aspect of the extension of the American legal system beyond the territorial frontier of the United States has given rise to so much friction as the requests for documents in investigation and litigation in the United States.”45

Perhaps in response to these mounting tensions, the United States took several affirmative steps in the 1960s and early 1970s to make transnational litigation easier for parties while accommodating the interests of other states.46 The State Department sent volunteer observers to the Hague Conference in 1956, and Congress approved U.S. membership in the Conference in 1964 just in time for the United States to actively participate in negotiating the Hague Service Convention.47 The United States was one of the Convention’s first signatories in 1967, and it was also a motivating force behind the subsequent Hague Evidence Convention, which it joined in 1972.48

The Hague Conventions’ primary purpose was to bridge common and civil law traditions.49 In many civil law states, “local judicial authorities supervise all evidence-taking”;50 for foreigners to take depositions or gather documents in the territory of those states, then, looks like a violation of the state’s exclusive enforcement jurisdiction.51 Similarly, service of process is considered a partly governmental function in many states, raising jurisdictional sensitivities when foreigners attempt to serve judicial documents within other states’ territory.52 The Conventions set minimum floors for judicial assistance between countries, obligating states to serve process or compel evidence on behalf of foreigners at least in some circumstances, while leaving open the possibility of either unilateral or bilateral commitments to providing greater assistance.

The United States had already undertaken some such unilateral 44 See BORN & RUTLEDGE, supra note 41, at 972–73. 45 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 442, rep. n.1 (1987). 46 The shift in U.S. practice also likely reflected the resolution of the Bricker Amendment

controversy, which prevented U.S. involvement in international codification efforts during the 1950s. See Gerald Aksen, American Arbitration Accession Arrives in the Age of Aquarius: United States Implements United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 3 SW. U. L. REV. 1, 4 (1971); Kurt H. Nadelmann, The United States Joins the Hague Conference on Private International Law: A History with Comments, 30 LAW & CONTEMP. PROBS. 291, 298 (1965).

47 RISTAU, supra note 33, at § 1–2, at 6; BORN & RUTLEDGE, supra note 41, at 911; Nadelmann, supra note 46, at 299–300.

48 BORN & RUTLEDGE, supra note 41, at 911, 1026; Weis, supra note 42, at 905. Although the United States had sat out the negotiations of the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), it acceded to it as well in 1970. Aksen, supra note 46, at 1 n.2.

49 See, e.g., Amram 1969 at 652. 50 Born & Hoing, supra note 18, at 396. 51 BORN & RUTLEDGE, supra note 41, at 969–70. 52 See id. at 909 (“Several nations have imposed sanctions against U.S. process-servers for

attempting to personally deliver U.S. complaints and summons to foreign defendants.”). Any resulting judgment may also not be enforceable by the courts of the foreign state. See id.


commitments.53 Congress in 1964 amended 28 U.S.C. § 1782 to expand the authority of U.S. courts to collect evidence within the United States on behalf of foreign proceedings.54 In 1962, the National Conference of Commissioners on Uniform State Laws adopted the Uniform Foreign Money-Judgments Recognition Act, an effort to codify the common law stretching back to Hilton. Most U.S. states have now adopted this act or the 2005 revision.55 And in 1976, at the behest of the State Department which wanted out of the business of advising courts on a case-by-case basis, Congress passed the Foreign Sovereign Immunities Act, codifying a presumption of recognizing the sovereign immunity of other states and their officials, subject to specified exceptions.56

According to the parochial critique, however, any improvements made during the 1960s and 1970s have given way to a new disequilibrium as the federal courts shifted back to an overly U.S.-centric approach starting in the 1980s. The next Part turns to mapping this parochial critique before challenging its implicit causal story.

II. THE PAROCHIAL CRITIQUE

At the aggregated level, a doctrine is parochial if it does not account for, or risks destabilizing, the rough reciprocity of private international law. I propose that this is a unifying theme—the parochial critique—across recent scholarship that has been critical of the federal courts’ handling of transnational litigation. Though focused on different procedural doctrines, these writers are concerned that U.S. courts have been blind to the systemic implications of their U.S.-centric approach to transnational cases.

A. Forms of Parochialism

The parochial label is purposefully broad and encompasses at least three strands of scholarly concern. It is not necessary to agree with all aspects of the parochial critique—indeed, there are some internal tensions within and across the strands—in order to follow the remainder of the argument: if at least in some areas and to some degree, courts are systematically undermining the rough reciprocity of private international law, understanding why this may be

53 According to one authoritative account, the United States initially focused on these

unilateral measures in hopes of avoiding the need for international commitments, which could invade traditional areas of state law. RISTAU, supra note 33, at § 1–4, at 10.

54 Weis, supra note 42, at 904–5. 55 As recognition and enforcement of foreign judgments is a matter of common law,

federal courts rely on these state laws. See, e.g., Dodge, supra note 26. A relatively minor exception to the state-law regime is the SPEECH Act, which governs the enforcement of foreign libel judgments as a matter of national law. See 28 U.S.C. § 4101.

56 Id. at ?; CURTIS A. BRADLEY & JACK L. GOLDSMITH, FOREIGN RELATIONS LAW 76–78 (4th ed. 2011).


occurring is a necessary step to considering whether and how to fix it.

1. Rejecting Transnational Litigation

Perhaps the most criticized doctrine of transnational litigation is that of forum non conveniens, which allows a judge to decline to exercise jurisdiction over a case that she believes would be better brought in another country’s courts.57 Although forum non conveniens has at times been justified in terms of comity—as a tool for U.S. courts to avoid stepping on the toes of other court systems58—commentators worry that its frequent invocation has instead aggravated other countries.59 Indeed, several studies have found that district courts grant nearly half of motions to dismiss for forum non conveniens, a rate that increases when the plaintiff is foreign.60

Scholars have linked the overuse of forum non conveniens to a broader concern that U.S. courts are closing their doors to transnational litigation. They point to the courts’ invocation of other prudential doctrines like standing, abstention, exhaustion, and act of state, as well as the Supreme Court’s recent narrowing of personal jurisdiction doctrine.61 Pamela Bookman has aptly labeled this trend “litigation isolationism” and tied it to the broader anti-litigation trends in U.S. courts.62

2. Overextending U.S. Law

For some, the ready extension of U.S. law to reach conduct, parties, and evidence abroad is a dangerous form of American exceptionalism, displacing international lawmaking and aggravating trading partners.63 From this perspective, parochialism emanates from the courts’ assumption that U.S. interests are more important (and its institutions more advanced) than those of other nations. This concern covers not just the application of U.S. statutes to foreign conduct or parties,64 but also the courts’ willingness to compel discovery located in foreign states despite foreign state objection.65 The courts

57 See generally Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). As just a partial sampling

of criticisms of the doctrine, see Childress, supra note 3; Martin Davies, Time to Change the Federal Forum Non Conveniens Analysis, 77 TUL. L. REV. 309 (2002); Lear, supra note 1; Rutledge, supra note 2.

58 See, e.g., Dodge, supra note 26, at 44 (draft) (arguing that forum non conveniens should be considered a comity doctrine).

59 See, e.g., … 60 See studies gathered in note 3, supra. On the increased rate of dismissals when the

plaintiff is foreign, see Whytock, supra note 3, at ?. 61 See, e.g., Coyle, supra note 1, at 445–46; Kirshner, supra note 2, at 261. 62 See Bookman, supra note 1; see also, e.g., Theodore Eisenberg & Kevin M. Clermont,

Plaintiphobia in the Supreme Court, 100 CORNELL L. REV. 193 (2014). 63 See Parrish, supra note 4; Silberman, supra note 4, at 524–26. 64 See Parrish, supra note 40. 65 See, e.g., Buxbaum, supra note 4, at 93–98; … See also Part IV.A, infra.


have also used anti-suit injunctions to prevent parties from initiating cases or seeking conflicting relief in foreign courts—injunctions that, while targeted at private parties, have the effect of encroaching on the adjudicative jurisdiction of foreign states.66 And more recently, despite the United States’ long history of recognizing and enforcing foreign judgments, some commentators have worried that the courts are getting stingier in their enforcement decisions, in particular by engaging in stronger critiques of foreign courts.67 Implicit in these more searching evaluations of foreign decisions is the assumption that U.S. courts are capable of judging the courts of other countries; that the U.S. judicial system is the ultimate point of comparison; and that some foreign courts will be deemed less adequate, fair, or—to put it more starkly—civilized than U.S. courts.68 Indeed, this concern extends beyond the enforcement of foreign judgments; as Peter Rutledge has noted, judges also evaluate the adequacy of foreign courts in the context of forum non conveniens, anti-suit injunctions, abstention, and exhaustion.69

Over the last few years, however, the Supreme Court has curtailed the courts’ extraterritorial reach in two particularly contentious arenas: securities regulation70 and human rights enforcement.71 Given the potentially broad implications of these cases, commentators have worried that the courts are overcorrecting, applying the presumption against extraterritoriality aggressively to avoid transnational cases.72 There is some tension in lumping both anti- and pro-extraterritoriality scholarship under the parochial label. But in both instances, commentators have argued that the courts are undermining international comity by paying too little attention to the concerns of other states.73 My own view is that recent Supreme Court cases reigning in jurisdictional doctrine may reflect a renewed sensitivity to international comity and the long-term reciprocity of private international law, even if also motivated by a distaste for certain types of litigation.74

3. Avoiding International and Foreign Law

Finally, commentators worry that U.S. judges are unwilling to apply

66 See, e.g., George A. Bermann, The Use of Anti-Suit Injunctions in International Litigation, 28

COLUM. J. TRANSNAT’L L. 589, ? (1990). 67 See, e.g., Carodine, supra note 5; Rutledge, supra note 5. 68 See Rutledge, supra note 5, at 188. 69 See id. at 187–89 (discussing exhaustion requirements, forum non conveniens, antisuit

injunctions, lis alibi pendens, and enforcement of both judicial and arbitral judgments). 70 See Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247 (2010). 71 See Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659 (2013). 72 See, e.g., Bookman, supra note 1; … 73 74 See …; see also Parrish, supra note 40, at 210–11 (Kiobel “may signal the beginning of a

modest, and welcome, retreat from a failed strategy of aggressive American unilateralism-viewed by other countries as legal imperialism”); …


international or foreign law, and that when they do, they do a poor job of determining what that law is.75 As John Coyle notes, this unwillingness is assumed in part to reflect negative judicial attitudes about international law, whether characterized as “ambivalence, hostility, discomfort, wariness, or visceral dislike.”76 This international law avoidance is also intertwined with the other two strands of the parochial critique: judges unwilling to apply international law would presumably avoid transnational cases or else fall back on applying U.S. law and practice in most cases.

*** Much of the parochial critique has focused on Supreme Court doctrine

and anecdotal evidence from the lower courts.77 While the parochial tenor of Supreme Court decisions can have wide-ranging effects,78 there is still a need for deeper empirical research, both quantitative and qualitative, to determine the depth and extent of parochialism in the practice of the district courts. Some initial findings suggest that the problem of parochialism may be more nuanced than is often assumed. For example, though not without some dissent,79 Kevin Clermont and Theodore Eisenberg have used comprehensive federal judiciary data to argue that the courts are not biased against foreigners: at least in terms of ultimate outcome, foreign litigants fare no worse than U.S. parties before the U.S. district courts and, for a period of time in the 1980s and 1990s, fared considerably better.80 Christopher Whytock, meanwhile, has

75 See, e.g., Coyle, supra note 1, at 447–62; McFadden, supra note 6, at 5 (asserting “a

thoroughgoing, deeply rooted provincialism--an institutional, almost reflexive, animosity toward the application of international law in U.S. courts”); see also Coyle, supra note 1, at 457 (gathering examples where “a lack of familiarity with international sources led the [federal] court to interpret a particular treaty provision in a way that was not just debatable but objectively incorrect”); Hathaway et al., supra note 6, at 70–76 (noting courts increasing refusal to recognize private rights of action under all treaties); Maggie Gardner, Piracy Prosecutions in National Courts, 10 J. INT’L CRIM. JUST. 797, ? (2012) (criticizing district court’s efforts to determine international law of piracy on both procedural and substantive grounds).

76 See Coyle, supra note 1, at 449, see also id. at 447–50 (collecting sources). 77 For example, two very large (and thus to some degree atypical) transnational cases have

received extensive scholarly attention: the DBCP pesticide cases, see, e.g., Delgado v. Shell Oil Co., 890 F. Supp. 1324 (S.D. Tex. 1995), aff’d, 231 F.3d 165 (5th Cir. 2000), and the Lago Agrio litigation, see, e.g., Chevron Corp. v. Naranjo, 667 F.3d 232 (2d Cir. 2012). In both cases, U.S. courts dismissed the complaints for forum non conveniens; at least some of the plaintiffs nonetheless were able to obtain judgments in foreign courts; yet the questionable quality of those foreign proceedings have cast doubt on the enforceability of the resulting judgments back in the United States. See, e.g., Christopher A. Whytock & Cassandra Burke Robertson, Forum Non Conveniens and the Enforcement of Foreign Judgments, 111 COLUM. L. REV. 1444 (2011).

78 Cf. Allison Orr Larsen, Factual Precedents, 162 U. PA. L. REV. 59 (2013). 79 See, e.g., Kimberly A. Moore, Xenophobia in American Courts, 97 NW. U. L. REV. 1497

(2002). 80 Kevin M. Clermont & Theodore Eisenberg, Xenophilia in American Courts, 109 HARV. L.

REV. 1120 (1996); Kevin M. Clermont & Theodore Eisenberg, Xenophilia or Xenophobia in U.S. Courts - Before and after 9/11, 4 J. EMPIRICAL LEGAL STUD. 441 (2007).


questioned the assumption of forum-law bias: in almost forty-five percent of choice-of-law cases in his dataset, the federal courts applied foreign law in lieu of U.S. law.81 And although studies have consistently found that close to fifty percent of forum non conveniens motions are granted, important questions remain: For example, do courts routinely deny motions to dismiss for forum non conveniens without written order, especially since such denials are not subject to immediate appeal, thereby skewing the results of studies based on published, written opinions? How does the forum non conveniens dismissal rate compare to rates of dismissal on other grounds? And in how many of these dismissals was forum non conveniens an alternate ground alongside, say, forum selection clauses or jurisdictional findings?

This Article provides, in part, a bit more insight into the actual work of the district courts in transnational cases, although it is a qualitative project rather than a quantitative one. For now, let us accept that the courts are parochial at least to some degree, even if less than currently perceived. Indeed, as the next Section illustrates, the costs of parochialism turn as much on the perception of the pattern of judicial parochialism as on its consistency.

B. Costs of Parochialism

Critics of judicial parochialism argue that, beyond the obvious harm to foreign parties, the courts’ parochialism hurts U.S. litigants, U.S. interests, and interstate relations in the long run. The goal here is not to prove each of these costs, but to demonstrate that diverse scholars have linked trends in U.S. court practice to systemic costs with wide-ranging implications—in other words, to parochial disequilibrium.

1. Harm to U.S. Economic Interests

Both the isolationist and imperialist strands of the parochial critique worry about the dynamic effect that judicial parochialism will have on U.S. economic interests. Isolationist tendencies push transnational litigation out of U.S. courts and into foreign courts, which are increasingly willing to welcome them.82 Scholars from this perspective argue that U.S. defendants will find foreign forums to be increasingly plaintiff-friendly as more states allow collective

81 Whytock, supra note 3, at 504? 82 See Bookman, supra note 1; Burbank, supra note 2; Marcus S. Quintanilla & Christopher

A. Whytock, The New Multipolarity in Transnational Litigation: Foreign Courts, Foreign Judgments, and Foreign Law, 18 SW. J. INT’L LAW 31 (2011); Whytock & Robertson, supra note 77, at 1449. Whytock has also identified in the federal courts a decline in alienage cases, encompassing cases in which federal jurisdiction is based on diversity between foreign and domestic parties. See Whytock, supra note 3, at ? Although this does not account for the rate of federal question cases involving foreign parties, it may suggest that transnational litigation is on the decline in U.S. courts.


actions, alternative payment schemes, and larger awards.83 As a result, U.S. defendants in foreign courts may find themselves facing large foreign judgments—even larger than they might have faced in U.S. courts.84

On the other hand, from the imperialist perspective, overzealous assertion of U.S. jurisdiction may discourage foreign companies from entering the U.S. market,85 as can the mere perception that the U.S. courts are biased against foreigners.86 To the extent other states see broad U.S. claims of prescriptive jurisdiction as exorbitant, they have been unwilling to recognize U.S. judgments.87 And from either perspective—that U.S. courts are pushing transnational cases into foreign courts, or that they are setting a global precedent by claiming the unilateral power to define customary international law—there is the risk that the United States (and individual litigants) may not like how foreign courts interpret and develop legal norms in turn.88

2. Access to Justice

When U.S. courts eschew jurisdiction, they may leave gaps in the coverage of private international law. That is, while some jurisdictional reticence is good for the system, too much can leave parties wronged in cross-border transactions without access to remedies.89 Thus a common critique of forum non conveniens dismissals is that they compel plaintiffs, who face high costs and less favorable litigation structures in other countries, to drop cases or settle for small sums.90 Even when the plaintiffs do pursue claims to victory in foreign courts, at least in some high profile cases U.S. courts have refused to recognize the resulting judgment on the grounds that the foreign proceeding was not sufficiently fair and impartial.91 More broadly, the reluctance of U.S. courts to hear transnational cases can break down reciprocal recognition of rights, leaving U.S. citizens and corporations at a disadvantage when they need to seek recourse before foreign courts.92

3. Retaliatory Legislation

As an indicator of parochial disequilibrium, other states have adopted 83 See Bookman, supra note 1; …. 84 [e.g., Chevron and Dole; but also less high profile examples] 85 See Austen L. Parrish, Sovereignty, Not Due Process: Personal Jurisdiction over Nonresident Alien

Defendants, 41 WAKE FOREST L. REV. 1, 48 (2006). 86 See Clermont & Eisenberg, Xenophilia in American Courts, supra note 80, at ? 87 Parrish, supra note 85, at 50–53. 88 See, e.g., Coyle, supra note 1, at 435; Parrish, supra note 40, at 234–35. 89 See, e.g., Coyle, supra note 1, at 435. 90 See, e.g., Heiser, supra note 3, at 610. 91 For a particularly thorough discussion of this phenomenon, see Whytock & Robertson,

supra note 77, at 1482–87. 92 See Hathaway et al., supra note 6, at 55 (discussing reciprocal costs of non-enforcement

of treaty rights by U.S. courts).


legislation in response to the perceived parochialism of U.S. courts. Some Latin American states passed laws clarifying that their courts cannot hear a case previously brought before a foreign court that had jurisdiction but nonetheless dismissed the case on discretionary grounds like forum non conveniens.93 Others passed laws intended to make their courts significantly less attractive to defendants as compared to U.S. courts in order to discourage defendants from filing forum non conveniens motions in the first place.94 In turn, some U.S. courts have refused to take these retaliatory statutes into account when ruling on forum non conveniens motions,95 forcing litigants to gamble in deciding where to file suit initially—and potentially ratcheting up tensions with other states that perceive U.S. courts as biased against foreigners and foreign interests.96 Courts’ use of anti-suit injunctions can lead to similar retaliatory spirals, as with the infamous anti-anti-suit injunction issued by a U.S. court in response to a British anti-suit injunction in the Laker Airways dispute.97

In the discovery context, foreign states have enacted “blocking statutes” to counter the perceived overreaching of U.S. courts;98 some (notably the broad blocking statute of France) predate the Evidence Convention while others are more recent.99 Foreign parties in U.S. litigation have long argued they should not be forced to comply with U.S. discovery orders when doing so would violate these blocking statutes or other foreign laws, such as data privacy laws, but U.S. courts have been very skeptical of such arguments.100 Perhaps to demonstrate that its blocking statute does have some teeth, France recently prosecuted a French attorney for turning over documents held in France for use in a U.S. proceeding.101 U.S. courts have been unmoved.102

4. Foreign Relations Costs

As these retaliatory cycles indicate, judicial parochialism can generate diplomatic friction.103 Some phrase this concern in terms of general embarrassment, particularly when judicial opinions contain unnecessarily

93 See Ronald A. Brand, Challenges to Forum Non Conveniens, 45 NEW YORK UNIVERSITY

JOURNAL OF INTERNATIONAL LAW & POLITICS (JILP) 1003, 1020–21 & nn.56 & 59 (2013); Heiser, supra note 3, at 623 (discussing Costa Rica, Honduras, Guatemala, and Venuzuela).

94 See Heiser, supra note 3, at 628–33 (describing laws of Dominica and Nicaragua); Robertson, supra note 1, at 1083; Whytock & Robertson, supra note 77, at 1492–93.

95 See Heiser, supra note 3, at 623 (collecting cases); Robertson, supra note 1, at 1103–4. 96 See, e.g., Whytock & Robertson, supra note 77, at 1493. 97 For a particularly lucid description of the Laker litigation, see ANDREAS F.

LOWENFELD, INTERNATIONAL LITIGATION AND THE QUEST FOR REASONABLENESS: ESSAYS

IN PRIVATE INTERNATIONAL LAW 5–14 (1996). 98 See, e.g., BORN & RUTLEDGE, supra note 41, at 972–73; Rutledge, supra note 5, at 195. 99 100 See Am. Bar Ass’n, Report on Resolution 103 Feb. 2012 9; see also Part IV.A.2, infra. 101 See id. 102 See Part IV.A.2., infra. 103 See, e.g., Parrish, supra note 40, at 231–34.


abrasive language about foreign states or judicial systems.104 Others have framed the foreign relations concern in terms of separation of powers. Thus scholars have criticized forum non conveniens as a troubling assertion of the courts’ inherent authority to decline congressionally granted jurisdiction, particularly in cases of express statutory grants of jurisdiction over transnational cases.105 Others have worried that dismissals for forum non conveniens run counter to U.S. treaty commitments adopted by the political branches to provide access to U.S. courts, whether in multilateral agreements like the New York Convention or the Warsaw Convention106 or in bilateral friendship, commerce, and navigation treaties.107 These interbranch tensions can carry real costs: commentators have suggested that the courts’ overuse of forum non conveniens dismissals, along with broad personal jurisdiction doctrines, significantly hampered the U.S. negotiating position at the Hague Conference, which ultimately failed to reach agreement on a new convention for the recognition and enforcement of judgments.108 Indeed, Justice Ginsburg cited this diplomatic cost as an additional justification for limiting the scope of general jurisdiction in last Term’s Daimler AG v. Bauman.109

C. Complicating the Critique

The common thread across these concerns is that excessive parochialism undermines the transnational system, and with it, long-term U.S. interests. Correcting course, however, requires a better understanding of judicial parochialism’s source. The emphasis in the literature has been on the role of individual judges: that parochial procedure reflects primarily the personal

104 See, e.g., Buxbaum, supra note 4, at 94–95 & n.55 (worrying that judicial “assertions”

about the lack of foreign judicial sovereignty concerns are “unbecoming efforts to devalue the sovereign interest at stake”); Parrish, supra note 85, at 866.

105 See Lonny Sheinkopf Hoffman & Keith A. Rowley, Forum Non Conveniens in Federal Statutory Cases, 49 EMORY L.J. 1137 (2000); Elizabeth T. Lear, Congress, the Federal Courts, and Forum Non Conveniens: Friction on the Frontier of the Inherent Power, 91 IOWA L. REV. 1147 (2005); cf. Goldsmith, supra note 29, at 1421–22 (noting “extraordinary judicial power” asserted by courts in declining to exercise congressionally granted jurisdiction under the political question and act of state doctrines).

106 See Rutledge, supra note 5, at 1079. 107 See Robertson, supra note 1, at 1125–26 (documenting split in judicial opinion about

whether bilateral friendship, commerce, and navigation treaties that promise equal access to courts should affect forum non conveniens analysis). But see Stevenson, supra note 21, at 284–85 (concluding that forum non conveniens doctrine does not conflict with equal access provisions in bilateral friendship, commerce, and navigation treaties).

108 See, e.g., BORN & RUTLEDGE, supra note 41, at 1085; Parrish, supra note 85, at 53; Linda J. Silberman, The Impact of Jurisdictional Rules and Recognition Practice on International Business Transactions: The U.S. Regime, 26 HOUS. J. INT’L L. 327, 337 (2004). More broadly, the resistance to treaty enforcement by U.S. courts can undermine U.S. credibility in future negotiations. See, e.g., Hathaway et al., supra note 6, at 55.

109 Daimler AG v. Bauman, 134 S. Ct. 746 (2014).


shortcomings of our decisionmakers.110 I do not doubt that some judges do bring parochial priors to transnational cases, particularly given the tone of isolated cases.111 But this causal explanation is not entirely satisfying. For every decision that disparages international law or ignores comity concerns, many more express sensitivity to the international ramifications of their decisions. Indeed, not all federal judges are opposed to transnational litigation, and even fewer would purposefully act on those views.112

Because of the parochial critique’s focus on individual judges, however, the standard prescription for decreasing parochialism has been greater judicial training, networking, and acculturation, along with doctrinal reforms that empower judges to determine and apply international law.113 Looking beyond individual judges to broader institutional constraints provides a new perspective on the problem, as well as on its potential solutions. Greater judicial training and socialization may help, but winning over parochial judges by itself may not fix our parochial procedure. As for the calls for doctrinal reform, what if broader discretion is in fact part of the problem?

III. UNINTENDED PAROCHIALISM

This Part suggests how parochialism might still result even if most judges held neutral views about transnational cases. Transnational litigation differs from ordinary—meaning purely domestic—litigation in important, if relatively self-evident, respects. When these differences are set against the constraints within which judges work, parochial procedure is a predictable outcome.

In identifying constraints on judges, this discussion draws on two familiar and increasingly integrated literatures. The first identifies how judges are constrained by institutional capacity: limits on time, information, and scope, all of which can increase error costs as cases become more complicated or more esoteric.114 The second establishes that judges are prone to the same cognitive

110 See, e.g., Heiser, supra note 1, at 1189 (“Unfortunately, most courts in the United States

currently have a parochial, not a global, perspective when it comes to hearing transnational tort actions. These courts are more concerned about the administrative burdens imposed on them, on the United States taxpayers and on juries if they retain such actions, than with the consequences to foreign plaintiffs if they dismiss. Judges often express discomfort with the prospects of ascertaining and applying foreign law and are far more concerned about docket control than with some vaguely stated duty to retain jurisdiction based on global responsibilities.” (footnotes omitted)).

111 See, e.g., Slaughter, supra note 30, at 1115; … [ 112 As Stephen Bainbridge and Mitu Gulati suggest, judges often do not push personal

agendas, particularly in cases with low political salience, because they care about prestige and professional reputation and will thus seek to minimize reversals as well as external criticism. See Stephen M. Bainbridge & G. Mitu Gulati, How Do Judges Maximize - The Same Way Everybody Else Does - Boundedly: Rules of Thumb in Securities Fraud Opinions, 51 EMORY L.J. 83, 96–97 (2002).

113 See, e.g., Coyle, supra note 1, at 462–68 (collecting but also critiquing such proposals); … .

114 See, e.g., Rutledge, supra note 5, at 192; Cass R. Sunstein & Adrian Vermeule,


shortcuts as the rest of us, though perhaps to differing degrees; as information becomes more complex, we all default to subconscious heuristics and biases in order to process information in an acceptably efficient manner.115 These institutional and personal constraints are interconnected, with limits on time and information, for example, increasing reliance on subconscious heuristics.116

This Part identifies how the intersection of the transnational context with constrained decisionmaking will encourage three doctrinal trends: formalization, as judges develop rubrics to fill in open-ended standards involving unfamiliar law; miscalibration, as their focus on the specific over the systemic leads these rubrics to overlook some factors while exaggerating others; and ossification, as judges turn to other judicial opinions for factual support in the absence of more reliable sources, a practice that increases path dependence even in the absence of binding authority. The next Part then explores where and when these aggregation errors may be occurring in transnational litigation.

A. Complexity and the Search for Rubrics

When a problem is unfamiliar or complex, decisionmakers will seek rules of thumb to manage overwhelming complexity and reduce otherwise high decision costs.117 The more complex a question, the more difficult it is to forecast all possible outcomes and their subsequent effects; humans cannot assess an infinite array of permutations.118 One common coping mechanism for complexity is “satisficing,” or settling for decisions that are good enough approximations for “correct” outcomes.119 Decisionmakers, including judges,

Interpretation and Institutions, 101 MICH. L. REV. 885, 922 (2003).

115 See Chris Guthrie et al., Inside the Judicial Mind, 86 CORNELL L. REV. 777 (2001) (summarizing survey results that suggest judges exhibit common cognitive shortcuts like anchoring, framing, hindsight bias, egocentric bias, and the representative heuristic).

116 See, e.g., ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL

THEORY OF LEGAL INTERPRETATION 3 (2006) (describing judges as “boundedly rational: their capacity to process the information they can obtain is limited, in part because of cognitive failings,” a problem that is “exacerbated by the case-by-case decisionmaking process [of] adjudication”); Guthrie et al., supra note 115, at 783 (noting judges must make decisions “under uncertain, time-pressure conditions that encourage reliance on cognitive shortcuts”). For articles on the intersection of the two that explore similar dynamics as I discuss here, see Bainbridge & Gulati, supra note 112; Barton Beebe, An Empirical Study of the Multifactor Tests for Trademark Infringement, 94 CALIF. L. REV. 1581 (2006); Frederick Schauer, Do Cases Make Bad Law, 73 U. CHI. L. REV. 883 (2006).

117 See, e.g., Ronald A. Heiner, The Origin of Predictable Behavior, 73 AM. ECON. REV. 560 (1983).

118 See, e.g., Bainbridge & Gulati, supra note 112, at 101; Beebe, supra note 116, at 1601; Jeffrey J. Rachlinski, Heuristics and Biases in the Courts: Ignorance or Adaptation, 79 OR. L. REV. 61, 61 (2000).

119 See Russell B. Korobkin & Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics, 88 CALIF. L. REV. 1051, 1077–79 (2000).


stop acquiring information and make decisions “after considering a remarkably low number of decision-relevant factors,” perhaps as few as three.120 Particularly when the stakes are not high (at least from the perspective of the judge), the over- or under-inclusiveness that results from satisficing and other “fast and frugal” heuristics will be tolerable, perhaps even necessary to prevent decisional gridlock.121

Recognizing this intersection of cognitive and institutional pressures, some scholars have posited a process of “rulification” through which broadly phrased standards are tightened into more rule-like tests over time.122 There is both a strong and a weak version of this “rulification” phenomenon: at its most basic, rulification is inherent in the common law process as subsequent decisions narrow the breadth of a standard over time through application to particular facts.123 The stronger version—and the version invoked here—asserts that decisionmakers seek out rubrics in order to make broad standards more manageable and to reduce decision costs.124

The forces behind such “rulification” are particularly strong in the transnational context, where judges face unfamiliar law and multiple, often conflicting, layers of stakeholders and interests. Discretion that trial judges routinely exercise in domestic contexts—such as managing discovery disputes or weighing alternative venues125—takes on added complexity in the transnational context, as judges attempt to weigh possible conflicts with foreign states’ procedural laws, police global forum shopping, account for U.S. treaty commitments, and predict the possible reaction of foreign states.126 Further, questions of transnational procedure can be intimidating to the uninitiated. International law is more than a separate substantive field of law; it has its own superstructure for determining what law to apply and what the

120 Beebe, supra note 116, at 1601–2 (collecting research). 121 While the literature usually associates over- and under-inclusiveness with the

application of rules, standards can also result in over- and under-inclusiveness due to these simplifying heuristics. Cf. Bainbridge & Gulati, supra note 112, at 90 (predicting that overworked generalist judges will satisfice by using standards to “dispose of a wide variety of cases on simple threshold issues”).

122 I am indebted to Michael Coenen’s recent article Rules Against Rulification for my thinking on this process and for bringing to my attention Frederick Schauer’s essay on the same phenomenon. See Michael Coenen, Rules Against Rulification, YALE L.J. (2015); see also Frederick Schauer, The Tyranny of Choice and the Rulification of Standards, 14 J. CONTEMP. LEGAL

ISSUES 803 (2005). 123 See Coenen, supra note 122, at n.21. 124 See Schauer, supra note 122. 125 These tasks are already potentially too complex for human decisionmakers to manage

without some guiding rubric. See, e.g., Robert G. Bone, Who Decides - A Critical Look at Procedural Discretion, 28 CARDOZO L. REV. 1961 (2007).

126 Add to this the reality that federal judges rely on law clerks, typically recent law school graduates with even less experience in the procedural aspects of transnational litigation, and on magistrate judges, who operate under similar constraints but with even fewer resources and (often) an even narrower issue-specific perspective.


content of that law is. The same is true for conflicts of law. Judges inexperienced with the substance of international law, whether public or private, will still be aware of this heightened degree of complexity when they approach transnational cases and may seek out touchstones to help guide them through the process.127 Even if the Supreme Court insists, then, that a question of comity be evaluated on a case-by-case basis, judges will be drawn to frameworks that shape and thus simplify their decisionmaking.

Yet because of this same unfamiliarity and complexity, there is also a heightened risk that judges will look for such touchstones in the wrong places. The rubrics they identify may be based on tests imported from similar contexts, particularly domestic analogues that do not translate perfectly to the international law context.128 Or they may be gleaned from Supreme Court decisions that expressly decline to establish such a rule in the first place.129 In doing so, they may discount the balance of interests struck by the political branches: if the Supreme Court found that balance insufficient in the context of a given case, then somethng more must be required to tip the scale away from the status quo.130 And where the Supreme Court has acknowledged the relevance of particular factors, the lower courts may still add to or simplify those factors in search of a clearer framework.131 As more courts adopt the resulting rubric, the more engrained and inevitable it becomes—even if its shortcomings are also becoming more apparent.132

Nonetheless, the error rate at this stage will often be neutral: that is, the tendency towards formalized rubrics, even if they are a poor fit, could lead to more or less parochial outcomes. A parochial tilt can be expected to emerge in application, however, as judges tend to favor some aspects of the rubric while losing track of others.

127 Cf. Coyle, supra note 1, at 453–55 (collecting literature on judges’ inexperience with the

methodology and substance of international law and noting its inevitable impact on judicial decisionmaking); see also Id. at 456 (recounting example of federal judge in Texas transferring case to the D.C. District because of its perceived greater expertise in international law).

128 129 See Coenen, supra note 122, at ?. 130 See the discussion of the Evidence Convention in Part IV.A, infra. 131 See the discussion of forum non conveniens in Part IV.B, infra. Cf. Beebe, supra note 116, at

1588 (noting similar pattern in the evolution of multifactor test for consumer confusion in trademark law).

132 See Bainbridge & Gulati, supra note 112, at 116–17 (discussing adoption of decisionmaking heuristics in terms of herd behavior); Bone, supra note 125, at 1990 n.122 (“[I]n the absence of strong feedback, a combination of framing, the escalating commitment effect, and the egocentric bias can cause a judge to lock into a routine set of practices even when those practices are suboptimal or flawed.”); Korobkin & Ulen, supra note 119, at 1114–15 (suggesting that decisionmakers will repeat suboptimal processes instead of updating them either because they wish to avoid additional decision costs or because they want to conform to community practices).


B. Myopia and Miscalibration

The horizontal system of private international law is based on the long-term accommodation of jurisdictional claims and the banking of international goodwill. Trial courts, however, operate on a case-by-case basis. This is a strength of the courts, which can weigh extenuating circumstances to devise optimal (or approximately optimal) paths forward in individual cases. But this focus on the particular can have a distorting effect.133 Whether considered in terms of salience134 or availability,135 the focus on a concrete dispute can cause judges to overemphasize case-specific facts and short-term interests, such as concerns about efficiency and delay, that are both immediately pressing and easy to assess.136

This does not mean that systemic interests will be ignored entirely. I am assuming—and indeed believe—that most judges are sensitive to comity concerns, particularly given Supreme Court admonitions to bear them in mind. Indeed, even though judges are increasingly aware of the insights from behavioral psychology, they may overestimate their ability to discern foreign sovereign interests, find foreign facts, or otherwise account for dynamic effects.137 But even when rubrics do incorporate systemic interests, the natural tendency to focus on case specifics and management, concerns that are concrete and immediate, can lead a decisionmaker to lose track of more abstract, aggregated, or longer-term interests.138

133 See Schauer, supra note 116, at 899 (discussing the realist insight that the immediate

equities of a particular case will have a mesmerizing hold on the judicial mind); see also VERMEULE, supra note 116, at 3 (asserting that the cognitive constraints experienced by judges “are exacerbated by the case-by-case decisionmaking procedure that defines adjudication--a procedure that emphasises the salience of particulars and hampers judges in discerning the systemic effects” of the decisionmaking structures they adopt).

134 See VERMEULE, supra note 116, at 38 (defining salience as “a heuristic that causes decisionmakers to overweight the importance of vivid, concrete foreground information and to underweight the importance of abstract, aggregated background information”); Schauer, supra note 116, at 895 (discussing distorting effect of salience on common law rulemaking).

135 See Bone, supra note 125, at 1988 (defining the availability heuristic as “the human tendency to make predictions based on particularly salient and memorable examples that are in fact statistically aberrational”); see generally Korobkin & Ulen, supra note 119, at 1087–90.

136 Thus, to take an example from the context of the Evidence Convention, it is no surprise that trial judges, “anxious to have litigants meet discovery cut-offs and other case-management deadlines, are … drawn to the familiar, and often faster, local procedures,” especially when their decision will only be subject to abuse-of-discretion review. Borchers, supra note 18, at 74.

137 Cf. Guthrie et al., supra note 115, at 811–15 (finding judges to be susceptible to “egocentric bias,” or the overestimation their professional ability to reach correct conclusions); cf. Rachlinski, supra note 118, at 66 (finding that judges are more likely to overlook cognitive illusions “[w]hen judges both determine the procedural rules that govern fact-finding and decide the facts themselves”).

138 Cf. Schauer, supra note 116, at 901 (gathering psychological research on the exclusionary effect of focusing on particular tasks and analogizing it to a judge’s focus on a


This is a critical inflection point in a process that might otherwise result in neutral systemic error. To recap, when a doctrine in a complex and unfamiliar field like transnational procedure is framed as an open-ended standard, judges will seek out rubrics to guide their analysis, yet the rubrics they identify—due to the same complexity and unfamiliarity—will likely be a poor fit. The rubric’s application, then, will still leave much room for discretion in how the individual factors are interpreted and applied, and it is in that act of translation that judges, focused on managing the case before them, will emphasize case-specific management concerns like efficiency, delay, docket congestion, gamesmanship, and the interests of sympathetic parties. Factors meant to protect systemic interests, like the long-term reciprocity on which private international law depends, may be acknowledged but will remain underdeveloped. Put another way, in this complex environment where the stakes in individual cases may be low but the cost of fully informed decisions would be high, judges may use (consciously or unconciously) extremely abbreviated stopping rules, making “good enough” decisions after considering only one or two factors—and the factors they focus on are likely to be those most salient and most readily ascertainable.139 It is this tilt that primarily produces parochial results in the aggregate.

At a broad level of generality, this insight can blur into the definition of “parochial,” which in its most basic form simply means a preference for the local and the familiar. But in the legal context, judges may quite sincerely believe they are accounting for foreign interests and systemic concerns through these tests—that they are being both managerial and cosmopolitan. Further, far from the doctrine improving over time as judges gain more experience with a given problem, the parochial tilt will most likely grow: not only do the same institutional and human constraints remain, but the factors meant to account for foreign or systemic interests will likely ossify.

C. Uncertain Facts and Ossified Factors

Current procedural doctrines ask judges to evaluate the efficiency of foreign proceedings, the fairness of foreign judicial systems, and the sovereign interests embodied in foreign legislation.140 Such facts are not amenable to the traditional means of district court fact-finding; they typically cannot, for

particular case).

139 See VERMEULE, supra note 116, at 178–80; Beebe, supra note 116, at ?. 140 See the discussion of the Evidence Convention and forum non conveniens in Part IV, infra.

Much has been written about the distinction between legislative and adjudicative facts. The foreign facts involved in transnational procedure occupy a middle ground: they are not specific to the case at hand, but neither are they broad facts about the world used to shape prospective rules. Rather, they are general facts required to evaluate the application of law to a given circumstance. Cf. Frederick Schauer, The Decline of the Record: A Comment on Posner, 51 DUQ. L. REV. 51 (2013) (identifying a middle ground between legislative and adjudicative facts).


example, be established through evidentiary hearings or declarations based on first-hand experience.141 Judges may rely on expert declarations or amici, but those declarations may be thin on support, and they can be assumed (in an adversarial system) to reflect party biases.142 Occasionally foreign states may express their views directly in U.S. litigation, but even though courts often invite such input in theory,143 they tend to discount it in practice.144 For its part, the Executive Branch rarely intervenes in individual cases, which is probably as it should be: not only would reliance on such intervention in individual cases be inefficient, but it also raises concerns about Executive Branch interference with the judicial function.145 Then there is the judge’s own factual research or personal experience. Independent judicial research can raise due process concerns in an adversarial system,146 but judicial intuition in fact-finding can be even more problematic.147 And both in camera research and judicial intuition are prone to confirmation bias, or the interpretation of information as support for existing beliefs.148

For judges concerned about these problems, prior judicial opinions may be the most accessible and perhaps the most reliable source of information.149 And for those that do rely on experts, in camera research, or intution, the pedigree of precedent can bolster the legitimacy of their conclusions, whether for themselves or for their audience.150

141 See Rutledge, supra note 5, at 192 (noting error costs of asking judges to assess

adequacy of foreign judicial systems). 142 …. Further, the reliance on experts and amici favors better-funded parties, which can

distort not only the fact-finding of an individual case, but also—given the pattern discussed here—the locking-in of facts and factors over future cases as well. Cf. Bone, supra note 125, at 1990–96 (analyzing distorting effect in discovery disputes of relevant information being in the control of the parties); Allison Orr Larsen, The Trouble with Amicus Facts, 100 VA. L. REV. 1757, 1784 (2014) (critiquing Supreme Court reliance on amicus briefs for fact-finding because “the factual data amici present to the Court and the studies they choose to highlight are all funneled through an advocacy sieve,” which results in “periodic unreliability”).

143 144 145 See ….; Nancy Morawetz, Convenient Facts: Nken v. Holder, the Solicitor General, and the

Presentation of Internal Government Facts, 88 N.Y.U. L. REV. 1600 (2013). 146 See Allison Orr Larsen, Confronting Supreme Court Fact Finding, 98 VA. L. REV. 1255

(2012)]; see also Davies, supra note 57, at 322 (critiquing judicial recourse to publicly available material in the forum non conveniens context as displacing the defendant’s onus of persuasion).

147 See, e.g., Goldsmith, supra note 29, at 1414–15 (raising concern that, given the complexity of foreign relations assessments, judges resort to “simple intuitive judgment[s] about the foreign relations consequences of adjudication”).

148 See Korobkin & Ulen, supra note 119, at 1093. 149 Cf. Bainbridge & Gulati, supra note 112, at 117 (“Under conditions of complexity and

uncertainty, actors who perceive themselves as having limited information and can observe the actions of presumptively better-informed persons may attempt to free ride by following the latter’s decisions.”).

150 See, e.g., Warrick v. Carnival Corp., 2013 WL 3333358, at *4 (S.D. Fla. Feb. 4, 2013) (granting a motion to dismiss for forum non conveniens based on the declaration of defendant’s


As judges turn to precedent to support their factual findings about foreign interests or systemic effets, they will also gravitate towards generalized findings that translate more easily across cases. For example, courts have reduced the evaluation of “U.S. interests” in transnational discovery disputes to the U.S. interest in full and fair adjudication before U.S. courts, or other similarly general considerations.151 Such broadly applicable truisms become stand-ins for systemic interests, obviating the need to reassess such factors in each case: a plug-and-play effect. The resulting chains of inter- and intra-district citation build path dependence, limiting the range of plausible findings for future decisions.

In the end, then, judges may think they are applying tests that account for the rough equilibrium of private international law, but those tests—as they have evolved over time—may be set up to fail. When trial judges are left with broad standards to resolve unfamiliar questions of law in complex circumstances, there is a risk that they will adopt frameworks that are not a good fit; that those frameworks will come to overemphasize case-management concerns and undervalue systemic interests; and that information costs will further limit individual judges’ ability to evaluate foreign facts and systemic interests, which can in turn foster a lock-in effect for potentially baseless assumptions. As time passes, given high decisions costs, professional pressures to conform to community practices, and possible reliance concerns for litigants, it is increasingly difficult for individual judges to correct course, whether by reverting to the initial broad standard or by proposing an alternative framework.152

This outcome is not inevitable. While questions of procedure in transnational cases will almost always involve foreign facts and system effects, discretion can be channeled to avoid some of the pressures mapped here. One can imagine a different path, where judges (ideally the Justices, or possibly the legislature) set an initial presumption that incorporates systemic interests. Where applicable, that presumption might be based on a treaty commitment—which represents, after all, a balance of system-level interests already struck by the political branches. And rather than accumulating a slew of factors with uncertain relative weight, more pragmatic rubrics would limit complexity by focusing on a small set of factors or narrowly defined exceptions, with a safety valve for discretion that need only be assessed in unusual or difficult cases.153 In complex and slightly arcane contexts like transnational litigation, we should

Italian law expert while also citing prior cases that had reached the same conclusion regarding the availability of the Italian judicial system).

151 See Part IV.A.2, infra. 152 Cf. Bone, supra note 125, at 1990 n.122 (flagging framing, commitment effect, and

egocentric bias as locking judges into “suboptimal or flawed” processes); Korobkin & Ulen, supra note 119, at 1114–15 (discussing lock-in effects of habits and traditions).

153 For further discussion, see Part V.


be looking for decisional ordering that reflects a pragmatic view of judging while leaving room for trial judges to make adjustments in hard cases.

IV. WHEN IS PROCEDURE PAROCHIAL?

This Part surveys four common procedural questions that arise in transnational litigation. With discovery of foreign evidence and forum non conveniens, the practice of the district courts can be described as parochial: courts grant close to fifty percent of motions to dismiss transnational cases for forum non conveniens, and they almost never use the Evidence Convention to manage interparty discovery disputes, even if a foreign party claims a conflict with foreign law. Service of process on defendants located abroad and the recognition of foreign judgments, however, tell a very different story: U.S. courts are notoriously willing to recognize foreign judgments—perhaps more so than any other country—and the district courts typically require strict compliance with the Service Convention when defendants are located outside the United States. I propose that these disparate outcomes may be explained by the structure of the doctrines. The Supreme Court framed the first two doctrines as an open-ended standard and a broad balancing test. The latter two doctrines, in contrast, have been framed (with the help of legislatures) as strong presumptions with enumerated exceptions.

Why these four doctrines? Three considerations drove the selection. First, forum non conveniens and the Evidence Convention are perhaps the only two instances where questions of international comity have been phrased as standards rather than rules.154 Second, there is a dearth of scholarship analyzing district court practice in applying the Evidence Convention and the Service Convention, so close analysis of these doctrines will add a new dimension to the parochial critique. Finally, the liberality of U.S. courts’ recognition of foreign judgments is the hard case for the parochial critique. Still, the case studies were not chosen scientifically, and the claim—that formalization, miscalibration, and ossification can explain parochial outcomes—ultimately is more a claim of plausibility than causality. For if this story is at least plausible, it supports the primary claim of the Article: that parochial procedure can arise even in the absence of parochial judges.

A. The Hague Evidence Convention

It is not uncommon, in modern litigation, for evidence to be located outside the United States. This can create myriad difficulties for litigants and judges. Sometimes the foreign witness or foreign custodian of needed documents will be a third party unaffiliated with the litigation. In these situations, federal courts will typically require parties seeking the foreign discovery to use the Evidence Convention, even if the third party falls within

154 See Dodge, supra note 26.


the court’s personal jurisdiction.155 Other times a foreign party to the litigation may worry that turning over some documents, or making some employees available for depositions, will conflict with its home state’s laws. In this circumstance—which is the focus of the analysis here—the federal courts never require use of the Evidence Convention.156 How did the Evidence Convention become effectively irrelevant in interparty discovery disputes?

1. From the Hague to the Courts

At the time of the Evidence Convention’s negotiation, a chasm separated how civil and common law countries conducted evidence-gathering for private litigation—and even among common law countries, the United States’ broad discovery practice was an outlier.157 For many states, obtaining evidence for private litigation is a public function conducted by judicial officers; attempts to gather evidence privately, without official permission of the state, may be perceived as a violation of the state’s territorial sovereignty.158 The Evidence Convention thus had two goals: to gather evidence that was reliable enough to use at trial in the home state but through procedures that were tolerable to the foreign state.159 It achieved two major advances in this regard.

First, the Evidence Convention improved on the existing system of letters rogatory, an ad hoc method for seeking judicial assistance that was predictably unpredictable and inefficient as the receiving state was under no obligation to provide the requested assistance. The Convention requires each state to establish a Central Authority to receive and coordinate requests for judicial assistance.160 States are obligated to execute all requests made through their Central Authority, subject to a couple specified exceptions,161 and must compel compliance to the same extent they would for domestic proceedings.162 Second, the Convention encourages states to permit foreign consuls and

155 156 For a more optimistic account of the post-Aerospatiale case law, see Nafziger, supra note

18, at 111–12. That account, however, conflates the stability of courts’ methodology—and it is undeniably stable, see Part IV.A.2, infra—with the correctness of that methodology and the results it generates. I argue here that the test used by courts is a poor fit and has predictably developed a parochial skew.

157 See, e.g., Id. at 104–5. 158 Hague Conf., Report of the Special Commission 56 (1968); Buxbaum, supra note 4, at 87. 159 Hague Conf., supra note 158, at 56. 160 Hague Evidence Convention, supra note x, art. 2. 161 A Central Authority can object to a request if it does not comply with the Evidence

Convention’s requirements, id. art. 5, and it can only refuse to execute a request if its execution would prejudice the state’s “sovereignty or security,” or if the request “does not fall within the functions of [that state’s] judiciary,” id. art. 12. The Convention specifically prohibits Central Authorities from refusing assistance because the state claims exclusive jurisdiction over the action or because its internal law would not recognize such a right of action. Id.

162 Hague Evidence Convention, supra note x, art. 10.


commissioners to take evidence (e.g., witness statements) on their territory.163 While consuls are diplomatic officers, any private person can be appointed as a commissioner for purposes of gathering evidence in another state. Particularly for civil law states, allowing foreign officials or private citizens to gather evidence encroaches more significantly on adjudicative jurisdiction than does processing requests through a state-run Central Authority.164 As such, states can tailor their permission for consuls and commissioners to gather evidence on their territory either through general declarations or with case-by-case instructions.165

Given how far apart states’ discovery practices were at the outset, however, the Convention is in some ways an incomplete agreement166: it sets a minimal baseline (namely, the Central Authority system) while encouraging states to provide broader assistance.167 In terms of providing judicial assistance, the United States has always exceeded this minimum.168 The challenge for the United States has instead been on the requesting end: when must U.S. parties seek discovery abroad through the channels specified in the Evidence Convention?

It is not clear that states gave this question much thought during the Convention’s negotiation.169 States today disagree about whether or not the Evidence Convention is mandatory—that is, whether or not it limits litigants to the Convention’s channels of evidence collection.170 The U.S. Supreme Court has held it is not, at least not when a court has personal jurisdiction over the party from whom the discovery is sought.171 The petitioners in Société Nationale Industrielle Aerospatiale v. U.S. District Court for the Southern District of Iowa were corporations owned by France that designed, manufactured, and marketed a small aircraft that had crashed in Iowa, injuring the pilot and a

163 Id. arts. 15-19. 164 See George A. Bermann, Hague Evidence Convention in the Supreme Court: A Critique of the

Aerospatiale Decision, 63 TUL. L. REV. 525, 527 (1989). 165 Hague Evidence Convention, supra note x, arts. 15-19. 166 Weis, supra note 42, at 905–6. In particular, [explain Article 23 controversy]. 167 States may, for example, waive the need for prior permission for consuls or

commissioners to take evidence on their territory, Hague Evidence Convention, supra note x, arts. 16-17; permit other means of evidence gathering in their territory, id. art. 27; or reach separate agreements that further liberalize procedures, id. art. 28.

168 See 28 U.S.C. § 1782. 169 See, e.g., Perm. Bureau of the Hague Conf., The Mandatory/Non-Mandatory Character of the

Evidence Convention 12 (Dec. 2008). 170 See Hague Conf., supra note 158, at 3 (listing as states that adhere to the mandatory

view Argentina, Czech Republic, Estonia, France, Germany, Israel, Latvia, Luxemburg, Monaco, Poland, Romania, Slovenia, Spain, Sweden, Switzerland, Turkey, and Ukraine, and asserting that civil law countries tend to view the Evidence Convention as mandatory while common law countries tend to view it as non-mandatory).

171 Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for the S. Dist. of Iowa, 482 U.S. 522, 524, 529 (1987).


passenger.172 The Court was careful to stress that the corporations initially responded to discovery requests under the Federal Rules of Civil Procedure and propounded their own.173 Eventually, however, the French petitioners sought a protective order against further discovery, arguing that the evidence sought was located in France and that, to avoid running afoul of France’s blocking statute, they could only respond to discovery requests that complied with the Evidence Convention.174

The Court rejected the petitioners’ argument that the Convention provided the exclusive means for obtaining evidence located in a signatory state.175 It also rejected the plaintiffs’ argument that the Evidence Convention only applies to third party discovery and was never intended to apply to discovery between parties.176 Instead, the Court held that the Evidence Convention’s procedures are “optional” in all cases and “available whenever they will facilitate the gathering of evidence.”177

How, then, are district courts to determine when to use the Evidence Convention? On this question, the Court split five to four. The majority rejected a rule of first resort to the Convention.178 Instead, it directed courts to undertake a “particularized analysis” of the international comity at stake in each case, and it refused to “articulate specific rules to guide this delicate task of adjudication.”179 Although the Court encouraged judges to “exercise special vigilance” over discovery in transnational cases,180 it also asserted (without support) that the use of Convention procedures would typically be “unduly time consuming and expensive.”181

172 Id. at 524–25. 173 Id. at 525 & n.4. 174 Id. at 526. 175 Id. at 533–34; [see also Blackmun agreeing on this point]. In particular, the

Convention’s language—for example, that a judicial authority “may…request” assistance from the competent authority in another state (Art. 1)—is not phrased in mandatory terms. See id. at 534–35 (noting preamble, Art. 1, and Arts. 15-17). It is possible that the use of “may” in Articles 1, 15, 16, and 17 simply reflects a choice from within a set range of options; unlike the Service Convention, the Evidence Convention does not have an initial article defining its scope. See Bermann, supra note 164, at 531; see also Borchers, supra note 18, at 81 (critiquing Court’s lack of sensitivity to how other states, particularly civil law states, phrase and interpret legislation); Van Alstine, supra note 29, at 991–92 (warning of risk of error in applying U.S. interpretive methods to treaties). Still, the distance between states’ understanding of discovery, as well as the range of declarations and reservations invited by the Evidence Convention, strongly suggest that the Convention was meant as an optional tool to facilitate evidence gathering abroad. See, e.g., Bermann, supra note 164, at 534.

176 Aerospatiale, 482 U.S. at 540–41. 177 Id. at 541. 178 In particular, it rejected the argument that such a rule could be derived from principles

of comity. Id. at 542–43. 179 Id. at 543–44, 546. 180 Id. at 546. 181 Id. at 542.


Justice Blackmun on behalf of the minority182 urged the Court to provide clearer guidance.183 Courts, he reasoned, are “ill equipped” to balance foreign interests with U.S. interests and too likely to default to familiar domestic procedures; instead, they should defer to the balance already struck by the political branches in negotiating and adopting the Convention.184 He thus would adopt a “general presumption” that the Convention should apply whenever discovery is located abroad.185 Only if there were a “true conflict” between foreign and domestic law would courts need to engage in balancing “foreign interests, domestic interests, and the interest in a well-functioning international order.”186

Blackmun reasoned that such a rebuttable presumption would not undermine effective adjudication. Though Blackmun was willing to tolerate “some additional burden” on transnational litigation in the interest of comity, he challenged the majority’s assertion that Convention procedures would necessarily be expensive and time consuming.187 Besides which, he noted, “discovery controlled by litigants under the Federal Rules of Civil Procedure is not known for placing a high premium on either speed or cost-effectiveness.”188 Ultimately, Blackmun predicted that the Court’s “case-by-case comity analysis…will be performed inadequately and that the somewhat unfamiliar procedures of the Convention will be invoked infrequently.”189

Blackmun’s prediction, echoed by others,190 has been borne out by the practice of the district courts. Over the intervening three decades, in seventy-five written decisions that explicitly discuss the applicability of the Evidence Convention in resolving interparty discovery disputes, only three district courts have required use of the Convention procedures.191 In all other cases, even in

182 Justice Blackmun concurred in part and dissented in part and was joined by Justices

Brennan, Marshall, and O’Connor. 183 Aerospatiale, 482 U.S. at 548. 184 Id. at 551–53; 556. 185 Id. at 548–49. This presumption would be derived not from the terms of the

Convention, but from the principle of comity: that the system of private international law would best be served by initial resort to procedures agreed upon by the affected foreign state.

186 Id. at 555–56. 187Id. at 562. 188 Id. 189 Id. at 548. 190 See, e.g., In re Auto. Refinishing Paint Antitrust Litig., 358 F.3d 288, 306 (3d Cir. 2004)

(Roth, J., concurring) (“Unfortunately, I believe the language used in Aerospatiale has unintentionally compounded the problem inherent with the Convention: …. rather than wade through the mire of a complex set of foreign statutes and case law, judges marginalize the Convention as an unnecessary ‘option.’”).

191 Two cases, discussed in more detail below, were decided within a few years of Aerospatiale while the doctrine was still in flux. See In re Perrier Bottled Water Litig., 138 F.R.D 348 (D. Conn. 1991); Hudson v. Hermann Pfauter, 117 F.R.D. 33 (N.D.N.Y. 1987). Since In re Perrier, the only other case requiring application of the Evidence Convention for interparty discovery that I have found involved a foreign plaintiff seeking to depose the foreign


the face of potentially conflicting foreign statutes, the courts have concluded that the Evidence Convention does not constrain the parties and that discovery should proceed under the Federal Rules.

As the small set of cases indicates, surveying trial court treatment of the Evidence Convention is hampered by the nature of discovery management: courts rarely write up their discovery orders,192 even fewer are made available on the commercial databases,193 and even fewer are ever subject to review by higher courts.194 Further, it is possible that courts, in harder-to-observe bench rulings or summary orders, are requiring parties to use Convention procedures. These source limitations necessarily qualify any conclusions drawn from published decisions, but they are offset by two additional considerations. First, given the overwhelming proportion of published decisions that reject application of the Evidence Convention, it seems unlikely that courts are routinely reaching the opposite conclusion in unelaborated decisions.195 Second, and more significantly, the pattern of decisionmaking I am interested in here is informed by the earlier decisions to which trial judges have access, and decisions that are easily available through commercial databases are the ones that will influence later decisions. Similarly, to the extent that parochialism’s harm to the system of private international law is based as much on perception as reality, it is the written and published decisions eschewing use of the Convention that other states observe.

So why are the courts, at least in written opinions, never applying the Convention to interparty discovery disputes? This is not particularly concerning in cases where equitable concerns favor rejecting the foreign party’s invocation of the Evidence Convention as a shield: for example, when a foreign plaintiff chooses a U.S. forum but then invokes the Evidence Convention in refusing to comply with discovery requests, or when a foreign defendant seeks discovery under the Federal Rules but then cites to the Evidence Convention in refusing to reciprocate.196 The focus here is on the

employee of a foreign defendant in France. See In re Vivendi Universal, S.A. Sec. Litig., No. 02 Civ. 5571, 2004 WL 3019766 (S.D.N.Y. Dec. 30, 2004).

192 Cf. Judith Resnik, Managerial Judges, HARV. L. REV. 374, 425–26 (1982) (critiquing lack of foramlity and accountability in judges’ management of pre-trial discovery).

193 On the selection problems posed by reliance on the commercial databases, see for example David Freeman Engstrom, The TWIQBAL Puzzle and Empirical Study of Civil Procedure, 65 STAN. L. REV. 1203 (2013); David A. Hoffman et al., Docketology, District Courts, and Doctrine, 85 WASH. U. L. REV. 681 (2007).

194 Cf. Resnik, supra note 192, at 411, 413. Indeed, Aerospatiale itself only reached the Supreme Court after the defendants sought and obtained a writ of mandamus from the Eighth Circuit for interlocutory review of the discovery order. Aerospatiale, 482 U.S. at 527–28.

195 For a contrary view, reasoning that litigants are using the Evidence Convention voluntarily and that only the “tough cases” are reaching judges, see Nafziger, supra note 18, at 114.

196 The latter situation assuredly informed the Court’s reasoning in Aerospatiale. See … ; see also, e.g., Hagenbuch v. 3B6 Sistemi Elettronici, No. 04 C 3109, 2005 WL 6246195, at *4 (N.D.


more difficult cases where foreign defendants attempt to comply with discovery requests under the Federal Rules, but they withhold some discovery because its disclosure would either conflict with another state’s interests or put them at risk of penalty under another state’s laws. The consistency of the courts’ rejection of such concerns is parochial, but it may be an unintentional parochialism.

Before exploring the plausibility of this claim in dpeth, two counterarguments should be acknowledged. First, it might be that this result is the correct one: perhaps the Evidence Convention is simply not relevant to interparty disputes. But that has not been the understanding of any of the three branches. The Supreme Court in Aerospatiale explicitly held that the Convention was applicable to interparty discovery and assumed that courts at times may wish to require its use for such disputes.197 Though the legislative history is not entirely clear, there is some indication that the Senate assumed parties would use the Convention as a “principal means” of obtaining evidence abroad.198 The Executive Branch has also acknowledged a role for the Evidence Convention in interparty disputes, particularly when there is a conflict with another state’s laws.199 There is an apparent disconnect, then, between expectation and practice.

Second, the avoidance of the Evidence Convention could perhaps be explained by judges’ dislike of international law, specifically the application of international treaties—a purposeful rather than unintentional parochialism. The tenor of a few of the district court opinions suggests that their authors might have held such views.200 The story appears more complicated than a simple rejection of the Convention as troublesome international law, however. Courts before Aerospatiale did apply the Evidence Convention to interparty disputes.201 Since Aerospatiale, the courts have also been very willing to apply the Convention to nonparty discovery abroad, including in some cases over objections and even when the nonparty is within the court’s personal jurisdiction and thus its power of compulsion.202 Restraint from invoking the Federal Rules to compel nonparties to testify or turn over documents, then,

Ill., Sept. 12, 2005); Haynes v. Kleinwefers, 119 F.R.D. 335 (E.D.N.Y. 1988). For an example of the former concern, see for example Schindler Elevator Corp. v. Otis Elevator Co., 657 F. Supp. 2d 525 (D.N.J. 2009).

197 Aerospatiale, 482 U.S. at 540–42, 546. 198 [Senate report] 199 [amicus brief] 200 See, e.g., In re Aircrash Disaster Near Roselawn, Ind., 172 F.R.D. 295, 310 (N.D. Ill.

1997) (“We find the concerns of the United States in protecting its citizens from unsafe products outweighs any of the aircraft defendants’ ‘sovereignty’ concerns, if any really existed in the first place.”).

201 202 See, e.g., CE Intern Resources 2013 WL 2661037; SEC v Stanford 2011 WL 1378470;

see also Nafziger, supra note 18, at 110 (collecting additional cases).


indicates at least an openness to applying the Evidence Convention. Furthermore, the tenor of most opinions is either neutral or explicitly sensitive to the concerns of other states.203 Why might the judges writing such opinions nonetheless always conclude that the Evidence Convention should not apply?

2. Unintentional Parochialism

Judges are not consistently rejecting the Evidence Convention off-hand; on the contrary, before rejecting the applicability of the Evidence Convention, district court and magistrate judges dutifully apply tests that evaluate multiple factors. But therein may lay the problem. Since Aerospatiale’s broad grant of discretion to trial courts, the lower courts’ treatment of the Evidence Convention has exhibited all three aggregation errors described in Part III: the identification of a poorly fitting rubric, the downplaying and generalizing of systemic interests within that rubric, and the ossification of difficult factual determinations.

The Supreme Court in Aerospatiale purposefully provided no guidance for the lower courts, explicitly declining to “articulate specific rules” for determining when parties should seek discovery through the Evidence Convention.204 Its most precise formulation was its admonition to consider “the particular facts, sovereign interests, and likelihood that resort to [the Convention] procedures will prove effective” in each case.205 The Fifth Circuit, in a remand from the Supreme Court that same term, adopted this tripartite standard as the relevant test, following the Court’s lead in declining to develop more specific guidelines; the Third Circuit followed suit some years later.206 Other lower courts likewise gravitated towards the tripartite standard—if they identified a test at all.207

These three factors, however, do not mean much of anything (except that the facts of Aerospatiale did not satisfy them). And because courts immediately and with near-unanimity assumed that the party invoking the Evidence Convention should bear the burden of proof (a question not addressed by the Aerospatiale Court), the unintelligibility of the factors meant that the invoking party bore the cost of insurmountable uncertainty.

Taking the last factor first, for exmaple, the “effectiveness” of the 203 See, e.g., In re Air Cargo Shipping Servs. Antitrust Litig., 278 F.R.D. 51 (E.D.N.Y.

2010). 204 Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for the S. Dist. of Iowa,

482 U.S. 522, 544 (1987). 205 Id. 206 In re Auto. Refinishing Paint Antitrust Litig., 358 F.3d 288, 300 (3d Cir. 2004); In re

Anschuetz & Co., 838 F.2d 1362, 1363-64 (5th Cir. 1988). 207 In Haynes v. Kleinwefers, 119 F.R.D. 335 (E.D.N.Y. 1988), the court identified no guiding

rubric, basing its decision instead on a few case-specific considerations, like cost and delay, and relying on citations to prior opinions—an analysis that unsurprisingly led the court to conclude the Evidence Convention need not be used.


Evidence Convention could be phrased as at least three distict questions: Would the Evidence Convention enable the requesting party to obtain most of the desired discovery, or would it be as effective as the Federal Rules in enabling the discovery, or would it be more effective? Courts coalesced around the latter two questions, and presumed the answer was “no,” based on Aerospatiale’s assertion that the Convention procedures would be “unduly time consuming and expensive.”208 Soon, even when the party invoking the Convention could point to some indications of efficiency or effectiveness, the burden of proof and the consistency of prior opinions made this default assumption impossible to overcome.209 For some judges, this ossified factor alone was enough to rule against the Evidence Convention’s application because, in the absence of guidance from Aerospatiale, they cast the three factors as independently necessary conditions for the Convention’s application.210

For those that instead treated the factors as a balancing test (more likely the Court’s intention, if it had one), the “particular facts” factor likewise ossified quickly to favor the Federal Rules. The Supreme Court had not suggested what the relevant “particular facts” of a case would be, and judges simplified this factor to how “intrusive” the requested discovery seemed.211 That inquiry proved circular, however: If the requested discovery was relevant and narrowly tailored, the factor was interpreted as favoring the Federal Rules.212 If, on the other hand, a discovery request was intrusive (that is, overbroad, irrelevant, or excessive), the court would use the Federal Rules to winnow it until it was not—at which point the factor would again favor proceeding under the Federal Rules.213

That left the “sovereign interests” factor, which fared little better. Courts 208See, e.g., In re Aircrash Disaster Near Roselawn, Ind., 172 F.R.D. 295, 310 (N.D. Ill.

1997) (citing Aerospatiale in determining that the Evidence Convention would be “an unnecessary, complicated, time consuming, and expensive means of discovery, thus thwarting the interests of our court system”); Rich v. KIS Cal., 121 F.R.D. 254, 258 (M.D.N.C. 1988) (phrasing inquiry as whether Convention procedures “will be more effective than use of the Federal Rules” and determining that they would not).

209 See Doster v. Schenk, 141 F.R.D. 50, 54 nn.6-7 (M.D.N.C. 1991) (invoking burden of proof in finding defendant’s evidence of possible effectiveness insufficient); Benton Graphics v. Uddeholm Corp., 118 F.R.D. 386, 391 (D.N.J. 1987) (finding evidence that Sweden could process discovery request within two months to be insufficient proof of efficiency); Schindler Elevator Corp. v. Otis Elevator Co., 657 F. Supp. 2d 525, 530 (D.N.J. 2009) (rejecting Swiss government’s submission that discovery request could be processed within two months because U.S. embassy, where deposition would be taken, could not make similar guarantee).

210 See Rich, 121 F.R.D. at 258; Benton Graphics, 118 F.R.D. at 389. 211 See, e.g., Great Lakes Dredge & Dock Co. v. Harnischfeger Corp., No. 89 C 1971, 1990

WL 147066, at *1 (N.D. Ill. Sept. 25, 1990); Rich, 121 F.R.D. at 257. 212 See Rich, 121 F.R.D. at 257. 213 See Benton Graphics, 118 F.R.D. at 390-91; see also Doster v. Schenk, 141 F.R.D. 50, 53

(M.D.N.C. 1991) (noting requests could be narrowed through a discovery conference, and thus defendant “loses the right to urge use of the Hague Convention” when defendant “fail[ed] to take advantage of the discovery conference procedure”).


relied heavily on the Supreme Court’s dismissive treatment of the French blocking statute in Aerospatiale; which was also extended by imperfect analogy to other states’ laws.214 Judges also discounted foreign sovereigns’ interest in controlling the collection of evidence in their territory, or any other phrasing of sovereign interests that could arguably be reflected in the Evidence Convention itself: if such interests would be sufficient, judges reasoned, “then there would be an automatic finding of an ‘important sovereign interest’ in every case,” and “[s]urely the Supreme Court did not intend [such a] result when it announced that the presence of an overriding sovereign interest was one of the factors to weigh in the resolution of these cases.”215 In other words, because the sovereign interests of France were insufficient in Aerospatiale, something more was required to tip the balance to favor the Convention.

Thus judges seeking guidance identified the clearest rubric from Aerospatiale, and in attempting to clarify its vague factors, overemphasized case-specific interests and—in the absence of ascertainable information—relied to the point of ossification on dicta in prior cases (including Aerospatiale itself) until there was only one possible outcome. Notably, several early opinions did try to calibrate the test differently, emphasizing the need to be sensitive to foreign sovereign and systemic interests. This was the tenor of the Fifth Circuit’s early decision,216 as well as the two district court opinions that did require parties to use the Evidence Convention procedures.217 These two early decisions also questioned the assumption that the Convention procedures were inadequate, reasoning instead that “the major obstacle to the effective use of the Convention procedures, if one there be, is litigants’ lack of familiarity with them”;218 to simply assume the procedures’ ineffectiveness “would reflect

214 See, e.g., Rich, 121 F.R.D. at 25 (“In general, broad blocking statutes, including those

which purport to impose criminal sanctions, which have such extraordinary extraterritorial effect, do not warrant much deference.”).

215 Great Lakes, 1990 WL 147066, at *2; see also Benton Graphics, 118 F.R.D. at 391 (discounting Swedish government’s intervention because the sovereign interests expressed by Sweden “are merely general reasons why Sweden prefers civil law discovery procedures to the more liberal discovery permitted under the federal rules”).

216 See In re Anschuetz & Co., 838 F.2d 1362, 1364 (5th Cir. 1988) (noting that “we emphasize that it is most important that the district court should consider, with due caution, that many foreign countries, particularly civil law countries, do not subscribe to our open-ended views regarding pretrial discovery, and in some cases may even be offended by our pretrial procedures,” and stressing the interests of the international system and foreign states as endorsed by the political branches and as embodied in the Evidence Convention).

217 See In re Perrier Bottled Water Litig., 138 F.R.D 348, 355 (D. Conn. 1991) (“The simple fact that, in joining the Convention, France has consented to its procedure is an expression of France’s sovereign interests and weighs heavily in favor of the use of these procedures.”); Hudson v. Hermann Pfauter, 117 F.R.D. 33, 37-39 (N.D.N.Y. 1987) (relying on Justice Blackmun’s opinion in emphasizing concerns for reciprocity as well as West Germany’s interest in its territorial integrity and its constitutional principles of privacy)

218 In re Perrier Bottled Water Litig., 138 F.R.D at 355.


the same parochial biases that the Convention was designed to overcome.”219 As these opinions indicate, it was not preordained that the tripartite

standard would become as skewed as it did, nor can the development of the doctrine be blamed entirely on anti-cosmopolitan judges.220 But these two district court cases quickly became marginalized. Why? The key reason, I propose, was the power of the particular. First, most early decisions approached the problem from the perspective of the parties, not of the interests of foreign states.221 Approaching the question through the lens of party interests would understandably lead courts to emphasize concerns like delay, cost, fairness, and traditional tools for managing discovery, while generalizing and downplaying the interests of foreign sovereigns. Second, it might not be a coincidence that the two outlier opinions were the only two decisions during the decade following Aerospatiale that were authored by district court judges; all the other decisions were issued by magistrate judges. This is not to suggest that magistrate judges are less cosmopolitan than their Article III peers, but that they operate within an even narrower case-specific scope: the management of pretrial discovery. Third, some of these early decisions might be examples of cases making bad law.222 Judges could not overlook the equities when the party invoking the Evidence Convention had already used the Federal Rules when it had served their interests, refused to confer with opposing counsel, or reneged on prior discovery agreements.223 It is not that these individual cases were wrongly decided, but that their language and reasoning wer more broadly applicable.

At a tipping point ten years after Aerospatiale, then, a (magistrate) judge acknowledged that prior opinions’ weighing of sovereign interests was irreconcilable and thus concluded that the cases turned on the first factor, the “particular facts.”224 After citing the other two ossified factors—that the French blocking statute does not warrant deference and that “it is generally recognized that procedures under the Hague Convention are far more

219 Hudson, 117 F.R.D. at 38-39. 220 That said, some early decisions did exhibit less-than-cosmopolitan tendencies. See, e.g.,

In re Aircrash Disaster Near Roselawn, Ind., 172 F.R.D. 295 (N.D. Ill. 1997). 221 See Benton Graphics, 118 F.R.D. at 389 n.2 (disagreeing with Hudson on the grounds that

“[i]n Aerospatiale, the majority did not elevate theoretical policy concerns over the effect Convention procedures would have upon particular litigants. Rather, the Court specifically directed district courts to analyze the interests of the parties and the intrusiveness of the discovery sought.”).

222 See Schauer, supra note 116. 223 Great Lakes Dredge & Dock Co. v. Harnischfeger Corp., No. 89 C 1971, 1990 WL

147066 (N.D. Ill. Sept. 25, 1990); Rich v. KIS Cal., 121 F.R.D. 254 (M.D.N.C. 1988); Haynes v. Kleinwefers, 119 F.R.D. 335 (E.D.N.Y. 1988); cf. Hudson, 117 F.R.D. at 34, 35 n.2 (requiring use of Evidence Convention when invoking party had raised request early and agreed to provide some discovery under the Federal Rules, and where opposing party’s discovery requests were excessive).

224 Valois of America , Inc. v. Risdon Corp., 183 F.R.D. 344, 346-47 (D. Conn. 1997).


cumbersome than under the Federal Rules of Civil Procedure”225—the court concluded that the requested discovery was too intrusive but that counsel should confer in order to narrow it.226 Thus, the court concluded, the Evidence Convention need not be applied. That opinion was not the result of parochial prejudices, but of the pressures of unguided decisionmaking in a complex field given the aggregated effects of human myopia and limited information. Later cases applying the tripartite test exhibited similar patterns.227

It was not lost on judges that Aerospatiale’s tripartite test “is an obtuse, difficult-to-apply standard” for which parties could not provide adequate evidence.228 Perhaps because this standard provided so little real guidance, judges by the early 2000s started invoking a more detailed multifactor test.229 Some courts invoked a set of factors included in an Aerospatiale footnote, later to be codified at § 442 of the Restatement (Third) of Foreign Relations;230 others invoked factors from the Restatement (Second) of Foreign Relations that were used in Minpeco, S.A. v. Conticommodity Services, Inc., 116 F.R.D. 517 (S.D.N.Y. 1987)

225 Id. at 349. 226 Id. 227 See, e.g., MeadWestvaco Corp. v. Rexam PLC, No. 1:10cv511, 2010 WL 5574325, at *1-

2 (E.D. Va. 2010) (reasoning that discovery is not excessive because parties will meet and confer to narrow it; discounting French Government’s submission and French blocking statute based on prior opinions; and likewise citing prior opinions in asserting that Evidence Convention procedures would be needlessly cumbersome); In re Aspartame Antitrust Litig., No. 2:06-CV-1732, 2008 WL 2275531, at *4 (E.D. Pa. May 13, 2008) (reasoning that intrusive discovery can be tempered through protective orders under the Federal Rules and relying Aerospatiale to both discount Swiss blocking statute and conclude that Evidence Convention procedures would be ineffective); Hagenbuch v. 3B6 Sistemi Elettronici, No. 04 C 3109, 2005 WL 6246195, at *3-5 (N.D. Ill., Sept. 12, 2005) (reasoning that discovery is not intrusive because the plaintiff is entitlted to it; that Italy’s interest in restricting pre-trial discovery is an insufficient sovereign interest “as such an outcome would result in finding an important sovereign interest in every case”; and that (based primarily on a citation to Aerospatiale) use of the Evidence Convention “may be difficult and time consuming”); see also Madden v. Wyeth, No. 3-03-CV-0167, 2006 WL 7284528, *2 (N.D. Tex. Jan. 12, 2006) (“[T]his court agrees with the well-reasoned decisions of other federal courts refusing to give substantial deference to France’s preference for the Hague Convention, as expressed in its ‘blocking statute,’ and recognizing that discovery procedures under the Convention are far more cumbersome than under the federal rules.”).

228 Adams v. Unione Meiterranea di Sicurta, No. Civ. A. 94-1954, 2002 WL 472252, at *2 (E.D. La. Mar. 28, 2002).

229 See, e.g., id. at *3-4. 230 See, e.g., In re Air Cargo Shipping Servs. Antitrust Litig., 278 F.R.D. 51, 53 (E.D.N.Y.

2010). The five factors listed in Aerospatiale were “(1) the importance to the … litigation of the documents or other information requested; (2) the degree of specificity of the request; (3) whether the information originated in the United States; (4) the availability of alternative means of securing the information; and (5) the extent to which nonompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located.” Aerospatiale, 482 U.S. at 544 n.28 (quoting Restatement of Foreign Relations Laws of the United States (Revised) § 437(1)(c) (Tent. Draft No. 7, 1986)) (omission in original).


(a case about foreign discovery that did not involve the Evidence Convention).231 The resulting multifactor tests, which were largely equivalent, quickly fell prey to the same aggregated pressures, with the same aggregated parochial outcomes.

First, the multifactor test, though appealing in its crisper detail, was still not a good fit for determining whether to invoke the Evidence Convention. Section 442 from the Restatement (Third) is designed to help judges decide whether and how to order discovery from abroad, particularly when there is a conflict with another state’s law. That decision overlaps with but is distinct from the choice between applying the Federal Rules or the Evidence Convention to that transnational discovery.232 Put another away, § 442 is not a binary test, but one that favors some discovery, albeit tailored discovery. As used by district courts in this context, however, the test becomes binary, with a decision that some discovery is appropriate conflated with the decision to apply the Federal Rules to the exclusion of the Evidence Convention. It is not surprising, then, that all applications of the test result in courts applying the Federal Rules rather than the Evidence Convention to interparty discovery. The Minpeco factors are an even more imperfect fit, as they were drawn from a test for resolving conflicts of enforcement jurisdiction;233 some of these factors—like “the extent to which enforcement [of a state’s laws] can reasonably be expected to achieve compliance with the rule prescribed by that state”234—simply does not translate the discovery context.

Unsurprisingly, problems arose in trying to implement these factors in the Evidence Convention context. Take, for example, § 442’s consideration of “the degree of specificity of the request.” In the context of conflicting law, this factor relates to how courts should tailor transnational discovery orders (answer: narrowly), not whether they should issue them in the first place. If applied instead to the question of whether to pursue discovery under the Evidence Convention or the Federal Rules, it is not clear how this factor should inform the answer: as with the tripartite standard, courts have concluded that this factor weighs in favor of applying the Federal Rules both when requests are specific235 and when they are not.236 Likewise, courts have

231 Most notably, the Second Circuit adopted the Minpeco factors in First American Corp. v.

Price Waterhouse LLP, 154 F.3d 16 (2d Cir. 1998). These factors were “(i) the competing interests of the nations whose laws are in conflict; (ii) the hardship that compliance would impose on the party or witness from whom discovery is sought; (iii) the importance to the litigation of the information and documents requested; and ([iv]) the good faith of the party resisting discovery.” Id. at 22.

232 Cf. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 473 (1987) (discussing explicitly the applicability of the Evidence Convention).

233 Minpeco, S.A. v. Conticommodity Services, Inc., 116 F.R.D. 517, 522 (S.D.N.Y. 1987) (quoting RESTATEMENT (SECOND) FOREIGN RELATIONS § 40 (1965)).

234 Id. 235 See, e.g., Milliken & Co. v. Bank of China, 758 F. Supp. 2d 238, 247 (S.D.N.Y. 2010); In


interpreted the “availability of alternative means of securing the information” factor to refer to disparate considerations: whether substantially similar information can be obtained domestically,237 for example, or whether discovery could be obtained as efficiently under the Evidence Convention (the answer to which, as we have already seen, being “no”).238

Second, in adding more factors for courts to consider, these tests only increased the salience of case-specific considerations. Under the tripartite standard, foreign sovereign interests are weighed against two case-specific factors, but under the multifactor test, depending on how it is articulated, they are weighed against four or six case-specific factors.239 If the case-specific factors point towards the Federal Rules, as they are prone to do, it is nearly impossible on such a scale for sovereign interests to tip the balance back towards the Evidence Convention. Meanwhile, judges cannot help but note how inefficient and costly the Evidence Convention procedures would be, even though such considerations are not enumerated in the multifactor test; opinions either refer to efficiency concerns as an additional consideration,240 or they conclude that efficiency concerns prevent the Evidence Convention from being a viable “alternative means” for obtaining discovery.241

Third, courts ossified many of these factors just as they had under the tripartite standard, particularly given the informational constraints that make it difficult for district courts to evaluate sovereign interests adequately. As the commentary of the Restatement (Third) explains, the weighing of sovereign interests is meant to incorporate “the long-term interests of the United States generally in international cooperation in law enforcement and judicial assistance, in joint approach to problems of common concern, in giving effect to formal or informal agreements, and in orderly international relations”242—in other words, systemic interests and the rough reciprocity of private international law. But given that courts are not well-positioned to account for such systemic interests as part of a case-specific analysis, the commentary’s gloss has been lost in practice. In weighing sovereign interests, courts have instead emphasized purely domestic interests of the United States, phrased in increasingly generic terms that would apply to all (or almost all) cases: the U.S.

re Air Cargo Shipping Servs. Antitrust Litig., 278 F.R.D. 51, 53 (E.D.N.Y. 2010)

236 See Tansey v. Cochlear Ltd., No. 13-cv-4628, 2014 WL 4676588, at *3 (E.D.N.Y. Sept. 18, 2014).

237 Pershing Pac. W., LLC v. MarineMax, Inc., No. 10-cv-1345, 2013 WL 941617, at *8 (S.D. Cal. 2013).

238 Milliken, 758 F. Supp. 2d at 247-48; In re Air Cargo Shipping Servs., 278 F.R.D. at 53. 239 240 241 Trueposition, Inc v. LM Ericsson Tel. Co., No. 11-4574, 2012 WL 707012, at *5 (E.D.

Pa. Mar. 6, 2012); see also In re Air Cargo Shipping Servs., 278 F.R.D. at 53. 242 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 442 cmt. c (1987).


interest in applying its own rules of procedure,243 or its interest in vindicating the rights of U.S. plaintiffs,244 or its interest in ensuring full and fair adjudication before U.S. courts.245

Meanwhile, courts have struggled to identify the relevant foreign interests for the other side of the scale. The Restatement (Third) commentary urges courts to look beyond the foreign state’s general sovereignty concerns or its preference for its own style of litigation, focusing instead on the “substantive policies or interests of the foreign state”246—in a sense, the opposite of its admonition for how courts might determine the U.S. interest in a discovery dispute. But the courts’ ability to evaluate state interest is also inverted when it comes to foreign states: it is easier for courts to point to another state’s overarching preferences than to determine specific substantive policies. Not surprisingly, then, courts typically cite to other states’ broad interests in “controlling access to information within its borders” and “affording … citizens protections against discovery in foreign litigation,” and then discount these interests as “relatively weak” or too general to be relevant.247

As with the tripartite standard, courts also rely on prior decisions to quickly discount blocking statutes as merely symbolic, an assumption now so engrained that new information cannot dislodge it. Thus U.S. courts continue to conclude that the French blocking statute is not a serious expression of French interest even when the French government expresses particularized interest in a case.248 Similarly, courts long refused to take the French blocking statute seriously because its criminal provisions were never enforced.249 France prosecuted and fined a French attorney under the statute in 2007 for turning over documents in a U.S. proceeding.250 Now courts do not take the French blocking statute seriously because the one instance of its enforcement is not

243 Tansey v. Cochlear Ltd., No. 13-cv-4628, 2014 WL 4676588, at *4 (E.D.N.Y. Sept. 18,

2014). 244 Pershing Pac. W., LLC v. MarineMax, Inc., No. 10-cv-1345, 2013 WL 941617, at *8

(S.D. Cal. 2013) (identfying this interest as “vital”). 245 Milliken & Co. v. Bank of China, 758 F. Supp. 2d 238, 248-49 (S.D.N.Y. 2010)

(recognizing, however, that this broad interest is less weighty than more policy-specific interests); In re Air Cargo Shipping Servs., 278 F.R.D. at 54.

246 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 442 cmt. c (1987). 247 In re Air Cargo Shipping Servs., 278 F.R.D. at 54; see also Buxbaum, supra note 4, at 93–95

(critiquing district courts’ discounting of foreign states’ judicial sovereignty concerns); American Bar Association, supra note 100, at 11 (same).

248 See, e.g., Bodner v. Paribas, 202 F.R.D. 370, 374-76 (E.D.N.Y. 2000); see also MeadWestvaco Corp. v. Rexam PLC, No. 1:10cv511, 2010 WL 5574325, *2 (E.D. Va. 2010) (reaching similar conclusion under tripartite standard).

249 See, e.g., Bodner, 202 F.R.D. at 374; cf. Schindler Elevator Corp. v. Otis Elevator Co., 657 F. Supp. 2d 525, 532 (D.N.J. 2009) (discounting applicability of Swiss law in part for lack of known prosecutions for complying with U.S. court orders).

250 See Daniel S. Alterbaum, Christopher X and CNIL: A Clarion Call To Revitalize the Hague Conventions, 38 YALE J. INT’L L. 217, 223–24 (2013) (discussing In re Advocat Christopher X, Cour de Cassation, Paris, crim., Dec. 12, 2007, No. 2007-83228 (Fr.)).


considered sufficient proof of France’s concern.251 One is left wondering what France could do to convince a U.S. court of its sovereign interests.252 And the courts’ skepticism of the French blocking statute has led more broadly to the discounting of other states’ statutes that embody more specific policy concerns, like the protection of data privacy or bank secrecy.253

As a result, the weighing of sovereign interests is conducted at a high level of generality, the U.S. interest in full and fair adjudication (meaning U.S.-style discovery) against other states’ similar interests in controlling discovery. Arguably, this is a balance already struck in the Evidence Convention itself. Sometimes judges identify substantive U.S. interests, like antitrust or restitution for Holocaust victims, only to assert that the other state shares those interests.254 Whether France or the United Kingdom agree that cartels or Nazis are bad, however, does not mean that they share an interest in U.S. courts enforcing U.S. causes of action against European industry or banks.255 Thus while § 442 nominally accounts for the balance of state interests, in practice that factor is predetermined; “U.S. courts … find little to counterbalance U.S. interests and therefore tend to permit discovery under U.S. domestic rules.”256

In sum, the lower courts have adopted a test meant to answer a different question and, in stretching it to fit this context, have reduced the systemic

251 In re Air Cargo Shipping Servs., 278 F.R.D. at 54; see also MeadWestvaco Corp., 2010 WL

5574325, at *2 (applying tripartite standard). 252 The French legislature has considered narrowing the scope of the blocking statute to

focus just on sensitive business secrets, a reform effort motivated at least in party by the unwillingness of U.S. courts to take the French statute seriously. See Alterbaum, supra note 250, at 221 n.24 It seems unlikely, however, that such reform would alter the analyses of U.S. courts.

253 Milliken & Co. v. Bank of China, 758 F. Supp. 2d 238, 249 (S.D.N.Y. 2010) (discounting Chinese interest in bank secrecy laws because prosecution seemed unlikely and Chinese government had not specifically intervened); AccessData Corp. v. ALSTE Techs. GmbH, No. 2:08cv569, 2010 WL 318477, *2 (Jan. 21, 2010) (citing Aerospatiale as establishing that German data protection law does not warrant deference as a type of blocking statute); Schindler Elevator, 657 F. Supp. 2d at 532 (discounting Swiss law for lack of prosecution).

254 See, e.g., In re Auto. Refinishing Paint Antitrust Litig., 358 F.3d 288, 304 (3d Cir. 2004) (“[T]here is no reason to assume that discovery under the Federal Rules would inevitably offend Germany’s sovereign interest because presumably Germany, like the United States, would prohibit the alleged price-fixing conspiracy and would welcome investigation of such antitrust violation to the fullest extent.”); In re Air Cargo Shipping Servs., 278 F.R.D. at 54 (“[T]his is a case involving violations of antitrust laws whose enforcement is essential to the country’s interests in a competitive economy. … The interest in prohibiting price-fixing of the type alleged here is shared by France.”); Bodner, 202 F.R.D. 375 (asserting that “the goals of the [Holocaust survivor] plaintiffs in this case clearly are consistent with the objectives of the French Government” despite interventions from the French Government calling for use of Evidence Convention).

255 Indeed, the transnational reach of U.S. antitrust and financial regulation has been a source of friction with European allies since the 1940s.

256 Buxbaum, supra note 4, at 95.


factors to favor U.S. interests and emphasized the case-specific interests that favor the Federal Rules. Combined with judges’ unfamiliarity with the Evidence Convention procedures, the resulting rubric again tilts the scale heavily against invoking the Convention. Without clearer guidance from above that accounts for informational constraints and counters the pull of the particular, it is not surprising that the district courts never require use of the Evidence Convention in obtain discovery from foreign parties—regardless of whether individual judges approach the question with an open mind.

B. Forum Non Conveniens

Forum non conveniens has become something of a whipping boy for those concerned about judicial parochialism.257 It is easy to see why: this is a doctrine that allows courts that otherwise have jurisdiction over a case to nonetheless dismiss it because it feels too “foreign.”258 And scholars have consistently found that the federal courts, at least in decisions available in common online databases, grant motions to dismiss for foreign non conveniens close to fifty percent of the time.259

Assuming that motions to dismiss on other grounds are granted much less frequently, this figure suggests a parochial slant in the application of forum non conveniens, at least in the aggregate. But it is not clear that this slant is due to individually parochial judges. To begin with, these written forum non conveniens decisions are consistently, often thoroughly, reasoned; they are not facially reflexive responses against transnational cases. Reasoned decisions could still mask parochial priors, with judges simply going through the motions of providing reasons for their predetermined conclusions. But the application (or non-application) of individual factors suggests otherwise. For example, current forum non conveniens doctrine encourages judges to take into account the burden the transnational case would place on their dockets.260 One would expect that parochial judges, looking for any way to shunt transnational cases, would invoke this factor liberally. But they do not, or at least not consistently; rather, judges often emphasize they are not concerned about the congestion of their dockets.261 This rhetoric seems to match reality: Whyock, for example, has found that a judge’s caseload, based on the Federal Judiciary’s Federal Court Management Statistics, has no statistically significant impact on his or her forum non conveniens decisions.262 Whytock also found that judges appointed by Republican presidents are equally likely to dismiss (or not dismiss) cases for

257 258 [Bookman] 259 See sources collected in note 3, supra. [Cf. George Priest & Benjamin Klein, The Selection

of Disputes for Litigation, 13 J. LEGAL STUD. 1 (1984).] 260 [Piper] 261 See Davies, supra note 57, at 364. 262 Whytock, supra note 3, at 519, 524.


forum non conveniens as are judges appointed by Democratic presidents, suggesting that judges’ personal beliefs do not predetermine their forum non conveniens analysis.263

Rather than a test misapplied by the decisionmakers, we may have a test that has evolved to constrain decisionmakers, or at least to set a strong default outcome. The fault again lies primarily with the Supreme Court, which missed an opportunity in 1981 to appropriately adapt the forum non conveniens analysis to the transnational context.264 Over time, the lower courts have further simplified and ossified the factors that the Supreme Court uncritically transplanted. The end result is a doctrine that skews in favor of dismissing transnational cases that, in a well-balanced system of private international law, U.S. courts should probably keep.

The application of forum non conveniens in transnational cases has taken a circuitous route, losing along the way the doctrine’s early emphasis on foreign-cubed cases.265 The federal courts initially engaged in forum non conveniens-like analysis to dismiss admiralty cases when both plaintiffs and defendants were foreign and the conduct occurred outside U.S. waters.266 As territorial limits to jurisdiction loosened,267 lower federal and state courts began applying the same sorts of considerations in domestic cases, dismissing claims where the plaintiff or defendant (if not both) were based in other U.S. states and where the harm likewise occurred outside the forum.268 In 1947, in a pair of five-four decisions, the Supreme Court formally recognized the doctrine of forum non conveniens as it applied to domestic cases.269 In Gulf Oil Corp. v. Gilbert, the Court approved the Southern District of New York’s dismissal of a tort claim brought by a Virginian against a Pennsylvanian corporation for a tort that occurred in

263 See id. at 525 (finding, however, that judges appointed by Democrats were more likely

to dismiss when the injury took place abroad while those appointed by Republicans were more likely to dismiss if the relevant conduct occurred abroad or the plaintiff was foreign).

264 Cf. Donald Earl Childress III, When Erie Goes International, 105 NW. U. L. REV. 1531, 1533 (2011) (“To apply mechanically a rule developed in interstate cases to an international situation without consideration of its policy relevance is both wrong and dangerous.” (quoting …) (internal quotation marks omitted)).

265 “Foreign-cubed” refers to cases where neither the plaintiff nor the defendant are citizens of the forum and the harm from which the suit arises also occurred outside the jurisdiction.

266 See Rutledge, supra note 2, at 1065–66. But see Am. Dredging Co. v. Miller, 510 U.S. 443, 449–50 (1993) (asserting forum non conveniens’ origins extended beyond admiralty to Scottish law and state practice). In a leading Supreme Court case, however, the maritime accident did occur in U.S. waters, though Canadian law applied. Can. Malting Co., Ltd. v. Paterson Steamships, Ltd., 285 U.S. 413 (1931)

267 In’l Shoe v. Washington, 326 U.S. 310 (1945). 268 See generally Paxton Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29

COLUM. L. REV. 1 (1929) (collecting cases). 269 Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947); Koster v. (American) Lumbermens

Mutual Casualty Co., 330 U.S. 518 (1947); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 248 n.13 (1981).


Virginia.270 In Koster v. (American) Lumbermans Mutual Casualty Co., the Court affirmed the Eastern District of New York’s dismissal of an equitable derivative suit that a New York shareholder had brought on behalf of an Illinois corporation against an Illinois citizen and another Illinois corporation.271 As a derivative action, the real party in interest (the majority emphasized) was the principal Illinois corporation;272 further, the nominal plaintiff was just one of many spread across the country, all with equal claim against the alleged wrongdoing.273

It matters that Gilbert in particular was a “foreign-cubed” sort of case because the Court articulated in Gilbert a set of factors that have continued to inform forum non conveniens analysis but that assume the invoked forum has no nexus to the dispute. Thus, for instance, the Gilbert majority warned that “[j]ury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation.”274 Likewise, it is not just that the “inconvenient forum” might “‘vex,’ ‘harass,’ or ‘oppress’ the defendant,” but that it would do so without any benefit to the plaintiff.275 And it matters that Gilbert was a domestic, not transnational, case because the question of comity—so relevant in the admiralty context276—was not at issue when the Court set out the rubric that still guides forum non conveniens analysis today. Instead, the Gilbert Court framed forum non conveniens as a forum shopping remedy, leading it to emphasize private interests (e.g., the ease of obtaining evidence) over public policy concers;277 further, the public policy concerns it did identify assumed that the alternative forum would be roughly equivalent from the parties’ perspective.278

For domestic cases in federal courts, forum non conveniens was soon replaced by 28 U.S.C. § 1404, which allows federal courts to transfer rather than dismiss cases more properly heard in another district.279 But the lower courts continued to apply the Gilbert and Koster factors to dismiss cases where the defendant argued that another country, rather than a sister state, would be the better forum for the suit.280 In Piper Aircraft Co. v. Reyno, the Supreme Court ratified this transplantation of the domestic test back into the transnational context.281 The U.S. defendants in Piper had manufactured a small airplane that

270 Gulf Oil, 330 U.S. at 502–3. 271 Koster, 330 U.S. at 519–20. 272 Id. at 522–23. 273 See id. at 523–26. 274 Gulf Oil, 330 U.S. at 508–9 (emphasis added). 275 Id. at 508. 276 See Can. Malting Co., Ltd. v. Paterson Steamships, Ltd., 285 U.S. 413, ? (1931). 277 See Rutledge, supra note 2, at 1067. 278 See Davies, supra note 57, at 373. 279 Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430 (2006). 280 See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 250 (1981) (collecting cases). 281 See id. at 255.


crashed in Scotland, killing the pilot and five passengers, all of whom were Scottish citizens.282 The heirs of the passengers, who were also Scottish, brought suit in California through a U.S. administratrix.283 After the case was transferred to the defendants’ home forum in Pennsylvania, that district court applied the Gilbert factors and dismissed the case for forum non conveniens.284 The Supreme Court held that it did not abuse its discretion in doing so.285

After Piper, the basic contours of the forum non conveniens rubric for transnational cases consisted of three, maybe four parts: First, there must be an adequate alternative forum, one that has jurisdiction to hear the case and the ability to provide some relief, even if significantly circumscribed.286 Second, the traditional “strong presumption in favor of the plaintiff’s choice of forum” only applies if the plaintiff is a U.S. citizen or resident; a foreign plaintiff’s choice of forum is discounted.287 Third, the court must consider whether hearing the case would “establish … oppressiveness and vexation to a defendant … out of all proportion to plaintiff’s convenience.”288 These “private interest factors,” taken directly from Gilbert, include the ease of obtaining evidence, witnesses, and a view of premises (if appropriate), as well as “all other practical problems that make trial of a case easy, expeditious and inexpensive.”289 Most courts have weighed these private interest factors alongside public factors related to court administration, also adopted directly from Gilbert: the congestion of the court’s docket; the “‘local interest in having localized controversies decided at home’” and “the unfairness of burdening citizens … with jury duty” for cases “with no relation” to the forum; and “the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law,” including a preference for cases being tried by courts “at home with the law that must govern the action.”290 Other courts have treated the public factors as a fourth stage of consideration, reached only if the balance is in equipoise after consideration of the private factors.291

In approving this domestic rubric for the transnational context, the Supreme Court also emphasized that the balancing of factors should be left

282 Id. at 238–39. 283 Id. at 239–40. 284 Id. at 242–43 (summarizing district court’s decision). 285 See id. at 255–61. 286 Id. at 241, 254 & n.22 The relief available in the alternative forum is considered

sufficient unless it “is so clearly inadequate or unsatisfactory that it is no remedy at all.” Id. at 254.

287 Piper, 454 U.S. at 255–56. 288 Id. at 241 (quoting Koster v. Am. Lumbermens Mutual Casualty Co., 330 U.S. 518, 524

(1947)) (internal quotation marks omitted) (alterations in original). 289 Piper, 454 U.S. at 241 & n.6 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508

(1947)) (internal quotation marks omitted). 290 Piper, 454 U.S. at 241 n.6 (quoting Gulf Oil, 330 U.S. at 509). 291 See Davies, supra note 57, at 351–53. For an example, see … [


entirely to the discretion of the district court.292 That forum non conveniens dismissals should be a matter of trial court discretion is not an obvious conclusion: the courts are, after all, declining jurisdiction they have been granted by Congress, a potentially weighty decision that surpasses mere management of judicial workload.293 And this broad discretion has exaggerated the indeterminacy of the transplanted factors.294

Consider the common occurrence of a dispute in which one party is at home in the U.S. forum but the opposing party is located abroad.295 In this context, the public and private factors are poorly calibrated for determining whether the U.S. forum is appropriate, or if it is significantly less appropriate than a foreign forum.296 To see why, recall that the Gilbert Court did not need to engage in a comparative analysis: any alternative forum with some nexus to the dispute would have been less vexatious to the defendant and more appropriate for court administration. For transnational cases where one party is local, however, the question is inherently comparative, as the factors identified in Gilbert could apply equally to the foreign forum. For example, no matter where the trial is held, some evidence and witnesses will be located abroad, possibly beyond the court’s power to compel.297 Someone will have to travel for the trial. The controversy will never be wholly local, and every new case, particularly one that implicates the extra considerations inherent in transnational litigation, will always be an added burden on some court’s docket.298

The lower courts have understandably struggled to apply these factors to transnational cases. The private interest factors have been simplified and ossified, with the result that they almost always point to dismissal. In particular, courts in several circuits have distilled the private interest factors to refer primarily to the availability of evidence for a U.S. proceeding.299 Many then treat the location of any material evidence abroad as weighing strongly in favor of dismissal.300 In doing so, courts often assume that evidence located

292 Piper, 454 U.S. at 249–50, 257. 293 [Cf. Quackenbush (with O’Connor’s caveat for FNC), reference Shapiro/Reddish

debate.] 294 Cf. Davies, supra note 57, at 380 (concluding that the combination of broad discretion

and “the flexibility obtained by having an imprecise and unpredictable standard is corrosive”). 295 My focus here is on forum non conveniens cases where one party is a U.S. national, and

not on foreign-squared or foreign-cubed cases, because the dismissal of cases involving U.S. parties raises greater concerns for the private international law system: they provoke the most consternation from other countries and pose the greater risk of access-to-justice gaps.

296 See Davies, supra note 57, at 353 (“Consideration of the narrow list of Gilbert public interest factors is relevant and appropriate when the alternative forum is another U.S. court, … but not in international cases, where the alternative forum is a foreign one.”).

297 See id. at 344. 298 See id. at 361–64. 299 See, e.g., … 300 See, e.g., …


abroad can only be obtained through invocation of the Evidence Convention; they rely on prior forum non conveniens opinions to conclude that this treaty-based process would be too difficult and unreliable.301 These decisions appear unaware of the overwhelming practice of the district courts in ignoring the Evidence Convention and compelling production of foreign evidence under the Federal Rules.302 That is, courts are dismissing cases because the court’s hands would be tied in managing discovery, even though no court in practice actually considers its hands tied.

Absent from many of these decisions is consideration of whether the alternative forum would have access to more evidence, or would even allow comparable discovery.303 Indeed, one could argue that U.S. courts are better equipped than most to overcome the logistical difficulties of transnational cases, given their ability to enable broad discovery, allow for foreign testimony by telephone or video, and consolidate duplicative litigation.304 The reduction of the private interest factors to the availability of evidence also helps explain why, for a doctrine aimed primarily at avoiding “oppressiveness and vexation to a defendant,”305 forum non conveniens is so often invoked to dismiss cases brought in the defendant’s home forum.306 In Koster and Gilbert—and even farther back in Canada Malting Co. v. Paterson Steamships, Ltd.307—the vexation and oppression came from forcing a foreign defendant to defend a suit far from home, in a forum that was also not particularly convenient for the plaintiff. But Piper, while invoking Koster’s phrasing, did not account for this distinction.

Meanwhile, in weighing the public interest factors, courts have struggled to identify where and how systemic interests should be taken into account. Judges sometimes express an intuition that international comity should play a role in the analysis, but Piper did not suggest how comity might affect the Gilbert test in the transnational context or which way it would cut. Some judges have invoked comity to reason that applying U.S. law and values to foreign disputes would be “paternalistic” or “chauvinistic” and have thus dismissed cases in favor of foreign forums.308 But comity may equally point in favor of exercising

301 See … 302 See Part IV.A, supra. 303 [counterexamples?] 304 See Davies, supra note 57, at 327–32, 338 (noting amendments of the Federal Rules of

Civil Procedure that allow videotaped depositions and testimony by “contemporaneous transmission,” as well as U.S. courts’ willingness to compel broad discovery under the Federal Rules rather than the Evidence Convention).

305 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981) (quoting Koster v. Am. Lumbermens Mutual Casualty Co., 330 U.S. 518, 524 (1947)).

306 Cf. Heiser, supra note 1, at 1175–76 (noting how defendant’s residence is de-emphasized by courts in light of the other public and private interest factors).

307 285 U.S. 413 (1932). 308 Heiser, supra note 1, at 1176–77 (internal quotation marks omitted) (collecting cases

and commentary); Whytock & Robertson, supra note 77, at 1491.


jurisdiction, given that states have expressed frustration at—and even retaliated against—the dismissal of claims brought against U.S. corporations.309 This latter view of comity requires a broader systemic perspective that can be hard to incorporate into a case-specific analysis, while the former view of comity has the appeal of seeming deference and judicial restraint. It is perhaps not surprising that judges have favored the former.

The private and public interests thus have come to favor dismissal in the transnational context, or at best give little real guidance to judges assessing forum non conveniens motions. Recall in addition Piper’s presumption that a foreign plaintiff’s choice of forum does not warrant the same deference as that of a domestic plaintiff. Although some circuits have tried to soften this anti-foreign plaintiff presumption,310 it still has the effect of skewing the forum non conveniens analysis towards dismissal in cases brought by foreign plaintiffs.311

The one safety valve in the analysis meant to protect plaintiffs—the requirement of an adequate alternative forum—has also been simplified and ossified into near-oblivion: foreign forums are almost never found to be either inadequate or unavailable.312 This is also not surprising. Piper discouraged courts from inquiring too deeply into the question of adequacy,313 recognizing that such questions would strain courts’ capacity: How should a court determine whether a foreign court is unfair, or whether the remedies available from the foreign court are inadequate? And if the court does think its foreign peer is unfair and its law inadequate, how could it say as much without causing offense?314

Instead, courts have avoided this inquiry through two moves, one addressing the adequacy requirement, the other the requirement of availability. First, courts rely on prior decisions’ findings that a particular foreign court will be adequate, leading to a self-reinforcing cycle based at root on judges’ intuitions about other countries.315 Second, courts avoid the availability

309 See Whytock & Robertson, supra note 77, at 1491–93; see also Heiser, supra note 1, at

1188 (“Rather than being offended by [U.S. courts retaining transnational cases], [developing] countries might view litigation by foreign plaintiffs in United States courts that apply foreign law as ‘out-sourcing’ of their dispute resolution to a more efficient judicial system.”).

310 See … 311 [Cf. Whytock – suggesting this could explain higher rates of dismissals for foreign

plaintiffs.] 312 See, e.g., Heiser, supra note 1, at 1171–72; Paul B. Stephan, Unjust Legal Systems and the

Enforcement of Foreign Judgments, in FOREIGN COURT JUDGMENTS & THE UNITED STATES LEGAL

SYSTEM 84, 95 (Paul B. Stephan ed., 2014); Whytock & Robertson, supra note 77, at 1457–60. 313 [Piper] 314 See, e.g., Heiser, supra note 1, at 1170 (noting hesitancy of courts “to label the court

system of another country as procedurally ‘inadequate’”); Rutledge, supra note 2, at 1078–79 (instead of “miniz[ing] jurisdictional competition,” “the adequacy analysis simply worsens matters by miring courts in value-laden judgments about the acceptability or unacceptability of a foreign forum”).

315 See …; see also Davies, supra note 57, at 322 (noting that some courts base their


requirement by relying on defendant waivers and stipulations regarding process, statutes of limitation, and personal jurisdiction.316 Given that a forum non conveniens dismissal represents a significant procedural victory for defendants, they “readily consent to a host of conditions designed to mitigate the adverse effects of any gross procedural deficiencies” in the alternative forum.317 Indeed, since waivers are a costless way to avoid difficult questions, courts have expanded their use to other aspects of the forum non conveniens analysis. Thus, for example, defendants might agree to produce U.S.-style discovery voluntarily or to waive future objections to the enforcement of a foreign judgment by U.S. courts.318

In sum, Piper left the lower federal courts with an outdated and ill-suited test for the transnational context, and the courts’ efforts to apply these miscalibrated factors led to further simplification and ossification. The private interest factors have been largely reduced to the availability of evidence, with judges relying on prior (forum non conveniens) opinions to assert that evidence located abroad will pose a heavy burden on the parties. The public interest factors ask judges to prioritize their administrative concerns over those of foreign courts while failing to address more pressing comity concerns. The non-deference to a foreign plaintiff’s choice of forum further skews in favor of dismissal, while the adequate alternative forum inquiry has been reduced to a rote conclusion bolstered by defendants’ voluntary waivers. The test as it has evolved thus favors dismissal of transnational cases where at least one party is foreign, and individual judges must work against the grain of precedent to justify retaining jurisdiction.319

Notably, the Supreme Court was not insensitive to some of these administrability concerns; it urged courts, for example, not to delve too deeply into evaluating the adequacy of foreign remedies,320 and it staged the inquiry into discrete steps presumably to aid judicial decisionmaking. The problem is that the initial presumption the Court chose—that foreign plaintiffs’ choice of forum does not merit deference—is both unjustified and tips the test from the outset towards dismissal.321 Other possible presumptions would better account

adequacy finding on their own consideration of publicly available material).

316 See id. at 316; Heiser, supra note 3, at 614–15 (collecting cases and commentary). 317 Heiser, supra note 1, at 1171 (collecting cases and commentary). 318 See Davies, supra note 57, at 316 (noting that use of waivers “enables defendants to

‘reverse forum shop’”); Heiser, supra note 3, at 616–17 & n.45 (collecting cases). 319 See Heiser, supra note 3, at 619 (“Various elements of the modern doctrine [of forum non

conveniens] basically guarantee this result [dismissal] where the alleged wrongful act and injury occurred in another country.”).

320 [Piper] 321 See, e.g., Stephen B. Burbank, Jurisdictional Conflict and Jurisdictional Equilibration: Paths to a

Via Media, 26 HOUS. J. INT’L L. 385, 395–96 (2004) (though ultimately defending the distinction on other grounds, criticizing it as antagonizing negotiating partners at the Hague and as based on an irrational fiction).


for systemic equilibrium; many scholars have suggested, for example, a presumption that courts should keep cases that are brought in the defendant’s home forum.322 In short, it may not be the structure of the forum non conveniens inquiry that is misconceived, but its content.

C. The Hague Service Convention

Compared to the Evidence Convention and forum non conveniens, the district courts’ application of the Service Convention is, on the whole, much less parochial. District courts often require strict compliance with the Service Convention’s procedures, which protects the due process interests of foreign defendants and the jurisdictional interests of other states. This strict compliance might reflect the happy confluence of systemic interests and party-fairness concerns, both of which favor defendant-protective outcomes. I suggest it also reflects the clearly structured framework for evaluating service questions. Still, a line of cases has developed that approves methods of service arguably in contravention of the Service Convention. The exception to the overarching trend is itself telling: these cases represent a microcosm of the parochial pressures created by unfamiliar law in the context of difficult foreign facts.

1. From the Hague to the Courts

The Service Convention is fundamentally different from the Evidence Convention in terms of structure: if a case falls within its scope, service must be completed through one of the Convention’s approved channels.323 There is no hierarchy among these different channels; each is equally preferred and valid.324 First, plaintiffs can send a request for service to the foreign state’s Central Authority. Every state party to the Convention must establish such a Central Authority that can accept requests for service, oversee their execution, and provide certificates of service that the plaintiff can rely on in his local court.325 Second, the Convention identifies additional channels of service that are available unless the foreign state affirmatively opts out of them. These

322 See, e.g., Bookman, supra note 1; Childress III, supra note 3; Davies, supra note 57, at

375. 323 [convention, handbook, Schlunk] 324 HAGUE CONF. – PERM. BUREAU ON PRIVATE INT’L LAW, PRACTICAL HANDBOOK ON

THE OPERATION OF THE HAGUE CONVENTION OF 15 NOVEMBER 1965 ON THE SERVICE

ABROAD OF JUDICIAL AND EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL

MATTERS 65 (3d ed. 2006). 325 Hague Service Convention, supra note x, arts. 2-6. The only exception to a state’s

obligation to provide service through its Central Authority is if the state “deems that compliance would infringe its sovereignty or security,” a conclusion that may not rest “solely on the ground that, under its internal law, it claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not permit the action upon which the application is based.” Hague Service Convention, supra note x, art. 13.


include service “by postal channels”;326 service by judicial officials (like hussiers) or private process servers;327 and service by consular or diplomatic officers.328 Third, states may permit additional methods of service either unilaterally or through additional agreements.329

Although service must be completed through one of these channels when the Service Convention applies, there are several exceptions to its scope. First, the Convention does not apply if the defendant’s physical address is unknown or if service does not require the actual transmission of documents abroad.330 In Volkswagenwerk Aktiengesellschaft v. Schlunk, the U.S. Supreme Court held that the law of the forum determines whether service can be completed without transmitting documents abroad, a legal conclusion with which the Permanent Bureau of the Hague Conference agrees.331 Thus if U.S. state law allows for substituted service on a foreign defendant’s local agent, and if that service can be completed domestically, the Service Convention does not apply.332 Finally, if the foreign state’s Central Authority has not responded to a request for service within six months, the local court may move ahead with a default judgment,333 which effectively establishes a six-month time limit to efforts to comply the Convention.

Even if the Service Convention approves a method of service as a matter of international law, however, service must also be adequate as a matter of domestic law.334 At the time the Court decided Schlunk in 1987, Federal Rule of Civil Procedure 4(i) provided federal litigants with additional, more flexible methods of service when attempting to serve a party located in a foreign country. It did not, however, mention the Service Convention explicitly. The 1993 amendments to Rule 4 drew more attention to the Service Convention while attempting to structure the inquiry more clearly.335 Rule 4(f) now provides three options when an individual (or a corporation336) is to be served outside the United States. Because the interrelationship between these three options is critical to the discussion that follows, it is worth reviewing Rule 4(f)

326 Id. art. 10(a) [acknowledge debate over service by mail]. 327 Id. arts. 10(b), (c). 328 Id. arts. 8-9. This channel is moot for U.S. purposes as the United States does not

typically permit its diplomatic officers to serve documents abroad. See 22 C.F.R. § 92.85. 329 See Hague Service Convention, supra note x, arts. 11, 19. 330 Id. art. 1. 331 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, ? (United States|US

1987); HAGUE CONF. – PERM. BUREAU ON PRIVATE INT’L LAW, supra note 324, at ?. 332 [Schlunk] 333 Hague Service Convention, supra note x, art. 15. 334 HAGUE CONF. – PERM. BUREAU ON PRIVATE INT’L LAW, supra note 324, at 71

(quoting the legislative history of the Hague Service Convention). 335 FED. R. CIV. P. 4(f) advisory committee’s note (1993). 336 See FED. R. CIV. P. 4(h)(2) (approving service on a corporation outside the United

States by any method listed under Rule 4(f) except for personal delivery under Rule 4(f)(2)(C)(i)).


in full:

Unless federal law provides otherwise, an individual … may be served at a place not within any judicial district of the United States: (1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; (2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction; (B) as the foreign authority directs in response to a letter rogatory or letter of request; or (C) unless prohibited by the foreign country’s law, by:

(i) delivering a copy of the summons and of the complaint to the individual personally; or (ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

(3) by other means not prohibited by international agreement, as the court orders.

The Advisory Committee notes for Rule 4(f)(1) emphasize that the Service Convention is mandatory and that its methods of service “shall be employed if available and if the treaty so requires.”337 In contrast, the Advisory Committee described the third option, Rule 4(f)(3), as a safety valve when the Service Convention procedures break down. It listed three occasions when a court might need to approve alternative methods of service: when another country’s Central Authority has failed to effect service “within the six-month period provided by the Convention”; when another country’s Central Authority refuses to serve a complaint “seeking punitive damages or to enforce the antitrust laws of the United States,” which would violate that state’s obligations under Article 13 of the Convention; or when there is “urgency” that necessitates special forms of service, as “authorize[d]” by the Convention itself.338 The structure of Rule 4(f), then, is that use of the Service Convention is mandatory under Rule 4(f)(1) unless the Convention does not apply by its

337 FED. R. CIV. P. 4(f) advisory committee’s note (1993). 338 FED. R. CIV. P. 4(f) advisory committee’s note (1993); Hague Service Convention, supra

note x, art. 13 (a state “may not refuse to comply [with a request for service] solely on the ground that, under its internal law, it claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not permit the action upon which the application is based”).


own terms. Since Schlunk, the district courts have consistently invoked the Service

Convention in evaluating the adequacy of foreign service. The issue typically arises through defendants’ motions to quash service or to dismiss under Rule 12(b)(5) for inadequate service, or else through plaintiffs’ motions for court approval of alternative service under Rule 4(f)(3). In written decisions on such motions, federal judges typically do one of three things: either they find the Service Convention inapplicable by its own terms (because the defendant’s address is unknown, because the Central Authority has taken no action in six months, or because service can be completed locally under state law); or they find the Convention satisfied on its own terms (because the Central Authority has returned a certificate of service or because service was effected by mail or private process server, to which the foreign state had not objected under Article 10); or they require the plaintiff to attempt service again through one of the Service Convention’s approved channels. Federal judges are thus routinely putting the interests of foreign defendants and of foreign states (as embodied in a multilateral treaty) before the convenience of U.S. plaintiffs and themselves—a distinctly non-parochial outcome.

Before looking more closely at the cases, a couple qualifications are in order. First, as in the discovery and forum non conveniens context, these written opinions represent only a fraction of decisions involving service of defendants abroad, and there may be a selection bias in the fraction that is observable. In particular, judges may be more likely to write opinions when they dismiss cases for inadequate service because those decisions are immediately appealable. This would favor written decisions that require strict compliance with the Service Convention, with judges more likely to resolve motions summarily when they approve non-compliant service. The written opinions reviewed here, however, do not regularly result in dismissals of cases. Some of these decisions affirm service because they conclude that service complied with the Service Convention. Others direct plaintiffs to additional options under the Convention and give them more time to pursue them. And many of these decisions relate not to defendants’ motions to dismiss, but to plaintiffs’ motions for alternative methods of service under Rule 4(f)(3), which requires advance court approval. Though written opinions are invariably a subset of all relevant decisions, the concern for this selection bias is ameliorated by the diversity of the cases’ procedural postures and outcomes.

Second, judges could be requiring strict compliance with the Service Convention as a way to rid themselves of messy transnational cases. This could be a story, then, not of cosmopolitanism but of competing parochialisms: judges’ parochial aversion to transnational litigation could simply be stronger than their parochial impulse to avoid applying international or foreign law. This tenor of avoidance, for example, creeps into decisions requiring pro se


plaintiffs to comply strictly with the Service Convention’s procedures.339 But judges also require strict compliance when the plaintiff is the U.S. Government,340 when one might most expect parochial judges to favor retaining cases. Moreover, as we will see, the line of cases that are arguably the most parochial in analysis nonetheless retain transnational cases by allowing plaintiffs to serve process in contravention of the Service Convention. Based on the diversity of procedural postures in these cases, the roughly proportionate outcomes in favor of plaintiffs or defendants, and the language used by individual judges, it appears that many (if not most) of the written opinions that reject foreign service as inadequate are doing so out of a sense of obligation under the Service Convention rather than to avoid transnational cases. This returns us to the question of why.

2. Parochial Pressures on the Margins

From the outset, unlike the Evidence Convention, the Service Convention provides a clear and feasible rubric for what is already a fairly rule-based determination. Although U.S. courts ultimately evaluate notice in terms of a constitutional standard, the Federal Rules long ago simplified that evaluation by providing formalized categories of constitutionally adequate service. Judges are not starting from scratch, then, when they evaluate the adequacy of service in unusual circumstances; methods of service approved by Rule 4 set a baseline from which deviations can be measured and must be justified.

Further, the Service Convention is framed in mandatory terms, and as backed up by the Supreme Court in Schlunk, it sets a strong default presumption that the Convention applies unless judges can identify a reason why it would not. The potential reasons it would not be applicable are also readily ascertainable: Plaintiffs can provide evidence of undue Central Authority delay and of their unsuccessful efforts to locate addresses for foreign defendants, and federal judges are used to applying forum state law to assess the adequacy of substituted service. If plaintiffs have opted to serve a defendant abroad through the foreign state’s Central Authority, the Central Authority must return a certificate that establishes that service was completed, which the plaintiff can then submit to the court as definitive proof.341 If a plaintiff instead opts for service through one of the Article 10 channels, such as by mail or private process server, the judge can check the Hague Conference’s reliable, centralized website to determine whether the foreign state has objected to such forms of service or attached any conditions to them.342 Finally, if the judge concludes that the plaintiff must try again to effect

339 See, e.g., [Jimena, Sanyal, Karimi]. 340 See, e.g., S.E.C. v. China Ne. Petroleum Holdings Ltd., 27 F. Supp. 3d 379 (S.D.N.Y.

2014). 341 342 See Service Section, Hague Conference on Private International Law,


service in accordance with the Service Convention, the procedures the plaintiff must pursue are clear—and are not dissimilar to procedures used domestically.

There is a line of cases, however, that skirts the Service Convention even when it should apply. These cases trace back to strongly worded dicta in a 2002 Ninth Circuit case that identified a textual ambiguity in Rule 4(f). Treating this dicta as controlling, some district courts have come to view Rule 4(f)(3)—the safety valve option—as a broad standard that is applicable in all cases. In Rio Properties, Inc. v. Rio International Interlink, a U.S. plaintiff sought to stop a Costa Rican entity from infringing on its trademark online.343 Despite significant effort, the plaintiff could not identify a viable address for the defendant in either the United States or Costa Rica, and it ultimately sought permission to serve the defendant via email.344 Notably, Costa Rica is not a member of the Service Convention; Rule 4(f)(1) was thus not at issue in this dispute.345 The defendant was also far from sympathetic; described by the court as the “elusive international defendant, striving to evade service of process,” it nonetheless argued that the plaintiff must attempt each and every means of service under Rule 4(f)(2) before seeking permission to serve process through alternative means under Rule 4(f)(3).346 The court flat-out rejected this argument based on the simple disjunctive relationship of Rule 4(f)’s three options: “Rule 4(f)(3) is not subsumed within or in any way dominated by Rule 4(f)’s other subsections; it stands independently, on equal footing. Moreover, no language in Rule 4(f)(1) or 4(f)(2) indicates their primacy, and certainly Rule 4(f)(3) includes no qualifiers or limitations which indicate its availability only after attempting service of process by other means.”347 As for when alternate service under Rule 4(f)(3) might be appropriate, the Ninth Circuit deferred “to the sound discretion of the district court.”348

District courts have since relied on Rio to conclude that, even when the Service Convention does apply, plaintiffs can immediately invoke Rule 4(f)(3) to seek permission to serve foreign defendants through alternative means, most typically through email or Facebook.349 This line of cases applying Rio to Rule 4(f)(1) exhibits some of the same aggregation tendencies as the Evidence

http://www.hcch.net/index_en.php?act=text.display&tid=44.

343 Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1012 (9th Cir. 2002). 344 Id. at 1012–13. 345 See id. at 1015 n.4. 346 Id. at 1014–16. 347 Id. at 1015. 348 Id. at 1016. 349 See, e.g., Feyko v. Yuhe Int’l, Inc., 2013 WL 5142362 (C.D. Cal. Sept. 12, 2013);

Richmond Techs., Inc. v. Aumtech Bus. Solutions, 2011 WL 2607158 (N.D. Cal. Jul. 1, 2011); The Knit With v. Knitting Fever, Inc., 2010 WL 4977944 (E.D. Pa. Dec. 7, 2010); In re LDK Solar Securities Litig., 2008 WL 2415186 (N.D. Cal. Jun. 12, 2008); Studio A Entm’t, Inc. v. Active Distributors, Inc., 2008 WL 162785 (N.D. Ohio Jan. 15, 2008); Williams-Sonoma Inc. v. Friendfinder Inc., 2007 WL 1140639 (N.D. Cal. Apr. 17, 2007).


Convention and forum non conveniens case law. Before exploring these similarities, however, I should first clarify why these cases are wrong.

In the context of Rule 4(f)(2), Rio’s reasoning seems correct, or at least unobjectionable. Because Rule 4(f)(2) sets out four different options for service, some of them broad and open-ended, it would be inefficient to require plaintiffs to exhaust each option in every case (and most likely not the intention of the Advisory Committee). But this reasoning does not hold for Rule 4(f)(1), given the Service Convention’s mandatory structure and the Advisory Committee’s explanatory notes. Even accepting, however, Rio’s literal reading of the disjunctive “or” in Rule 4, a similarly literal reading of Rule 4(f)(3) would still require initial resort to the Service Convention. Rule 4(f)(3) only allows for alternative methods of service that are “not prohibited by international agreement.” Under the Service Convention’s mandatory structure, if the Convention applies, any method of service not approved by the Convention is effectively prohibited.350

Courts that follow Rio’s dicta have maneuvered around this limiting language in Rule 4(f)(3) in two ways, neither of which are sensible interpretations of the Convention, Rule 4, or Schlunk. First, courts assert that methods of service are only prohibited under the Service Convention if they are explicitly prescribed by the Convention or included in the foreign state’s objections or reservations under the Convention. Thus, service by email, facsimile, or Facebook is not “prohibited” by international agreement because these methods are not explicitly referenced in the Service Convention or a given state’s Article 10 objections.351 This leads to the absurd result of judges in a single opinion denying permission to serve by mail where the foreign state has objected to such service under Article 10 of the Convention, but approving (at least in theory) service by email or Facbook because the foreign state has not explicitly denounced such methods as well.352

Second, courts have pointed to Schlunk to conclude that ad hoc substituted service, such as on local counsel, can be completed domestically and thus does not violate the Service Convention.353 This reasoning is questionable, both in

350 [See HCCH handbook] 351 See Fed.Trade Comm’n v. Pecon Software Ltd., 2013 WL 4016272 (S.D.N.Y. Aug. 7,

2013)(approving service by email and Facebook in India); Studio A, 2008 WL 162785 (approving service by fax in Canada). Other judges have applied similar reasoning—looking for explicit denunciation in the Service Convention or the foreign state’s laws—in approving substituted service on local counsel or agents. See, e.g., The Knit With, 2010 WL 4977944; LDK Solar Sec. Lit., 2008 WL 2415186.

352 See Williams-Sonoma, 2007 WL 1140639. 353 See, e.g., Vanleeuwen v. Keyuan Petrochemicals, Inc., 2012 WL 5992134 (C.D. Cal.

Nov. 30, 2012); Brown v. China Integrated Energy, Inc., 285 F.R.D. 560 (N.D. Cal. 2012); In re China Educ. Alliance, Inc. Securities Litig., 2011 WL 6846214 (C.D. Cal. Dec. 29, 2011); Richmond Techs., 2011 WL 2607158; FMAC Loan Receivables v. Dagra, 228 F.R.D. 531 (E.D. Va. 2005).


light of Schlunk and in terms of Rule 4’s language and structure. The Supreme Court in Schlunk was concerned about how to interpret the Service Convention’s scope, which only applies when judicial documents are “transmit[ted] … abroad.” It reasoned that the only standard against which to measure this requirement was “the internal law of the forum state.”354 Schlunk thus held that the Service Convention applies “[i]f the internal law of the forum state defines the applicable method of serving process as requiring the transmittal of documents abroad”;355 only if state law allows for substituted service on local agents does Schlunk “except” such service from the Service Convention’s coverage. Put another way, the sufficiency of substituted service is a Step 0 question based on existing forum state law, not an ad hoc escape clause left to the discretion of the individual judge.

This distinction is also built into Rule 4. Because Rule 4(f) only applies to “service at a place not within any judicial district of the United States,” reaching Rule 4(f)(3) necessarily means that service is occurring abroad and that the Service Convention, if otherwise applicable, is thus mandatory. Substituted service under Schlunk’s reasoning, which is perfected within the United States,356 technically occurs under Rule 4(e)(1).357 Judges, however, have approved forms of substituted service under Rule 4(f)(3) that would not be sufficient under forum state law, and they have invoked Schlunk to suggest that such service is not prohibited by the Service Convention.358

It is perhaps ironic that, in attempting to increase use of the Service Convention by restructuring Rule 4, the 1993 amendments may instead have added complexity to a still unfamiliar area of transnational law. Judges must navigate the interplay between Rule 4, the Service Convention, and forum state law, and some judges seized on Rio’s clear dicta to reduce complexity (Rio’s “no hierarchy” principle does have the merit of simplicity). Yet Rio’s reasoning did not translate correctly from the Rule 4(f)(2) context to cases where the foreign state is party to the Service Convention. This mistranslation has in turn been exacerbated by a miscalibrated inquiry. Instead of requiring plaintiffs to point to the text of the treaty, foreign law, or forum state law to identify why an exception to the Service Convention is warranted, the Rio approach requires the opposing party to prove a negative—that the foreign state does not allow a certain form of service. Finally, to the extent courts require some minimal showing of hardship to justify invocation of Rule 4(f)(3), they have at times accepted generalized assertions—or made their own—that serving process

354 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700 (1987). 355 Id. 356 Id. at 706. 357 Rule 4(e)(1) permits service within the United States by “following state law for serving

a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made,” such as by serving a party’s local registered agent.]

358 See, e.g., Richmond Techs., 2011 WL 2607158 (acknowledging substituted service not based on forum state law).


abroad will be difficult, costly, time-consuming, and ultimately futile.359 These generally unsupported assertions have started appearing as string cites in more recent cases, suggesting a tendency towards ossification.360

Still, this line of cases represents a small minority, and many courts have successfully pushed back against the trend. Although decisions will often acknowledge Rio’s reasoning, many district court judges distinguish Rio as a Rule 4(f)(2) case or as a case that turned on the plaintiff’s good faith and the defendant’s bad faith, and they require plaintiffs to do more than simply assert that service through the Service Convention would be too difficult.361 This additional showing is often phrased in rule-like terms, for example that the plaintiff must show both that he has “reasonably attempted to effectuate service on the defendant” and that “circumstances are such that the court’s intervention is necessary.”362

An optimistic perspective is that the mandatory structure of the Service Convention, which sets a strong default, and the relatively clear decisional framework of Rule 4 has enabled courts to correct course—at least sometimes—when complexity and information costs push judges toward parochial procedure. If so, Rule 4(f)’s safety valve may be worth retaining to allow judges flexibility in hard cases, even if it has been misapplied by some courts.363 That assumes, however, that the Rio trend is not accelerating; it is possible that the parochial pressures on the doctrine are increasing.

D. Recognition of Judgments

Finally, the best counter to any parochial account of U.S. courts is the courts’ consistent willingness to recognize and enforce foreign money judgments.364 Indeed, U.S. courts are perhaps the most generous in the world

359 See, e.g., Vanleeuwen v. Keyuan Petrochemicals, Inc., 2012 WL 5992134 (C.D. Cal.

Nov. 30, 2012); The Knit With v. Knitting Fever, Inc., 2010 WL 4977944 (E.D. Pa. Dec. 7, 2010); In re LDK Solar Securities Litig., 2008 WL 2415186 (N.D. Cal. Jun. 12, 2008).

360 See, e.g., Feyko v. Yuhe Int’l, Inc., 2013 WL 5142362 (C.D. Cal. Sept. 12, 2013); …. 361 As courts in the Second Circuit often phrase the requirement, some additional showing

“is necessary in order to prevent parties from whimsically seeking alternate means of service.” KG Marine, LLC v. Vicem Yat Sanayi Ve Ticaret As, 24 F. Supp. 3d 312, 315 (W.D.N.Y. 2014) (quoting Ryan, 2002 WL 1628933, at *2); see also, e.g., S.E.C. v. China Ne. Petroleum Holdings Ltd., 27 F. Supp. 3d 379 (S.D.N.Y. 2014) (China); Virtual Point, Inc. v. Hedera AB, 2014 WL 1729025 (N.D. Cal. Apr. 29, 2014) (Sweden); Midmark Corp. v. Janak Healthcare Private Ltd., 2014 WL 1764704 (S.D. Ohio May 1, 2014) (India); KG Marine, 24 F. Supp. 3d 312 (Turkey); Compass Bank v. Katz, 287 F.R.D. 392 (S.D. Tex. 2012) (Mexico); Agha v. Jacobs, 2008 WL 2051061 (N.D. Cal. May 13, 2008) (Germany); U.S. Aviation Underwriters, Inc. v. Nabetsco Corp., 2007 WL 3012612 (W.D. Wash. Oct. 11, 2007) (Japan).

362 China Ne. Petrol., 27 F. Supp. 3d at 396 (quoting Devi v. Rajapaska); KG Marine, 24 F. Supp. 3d at 314; …. Other courts have more simply required “good cause” before approving alternative means of service. See, e.g., Virtual Point, 2014 WL 1729025, at *3.

363 364 See, e.g., Stephan, supra note 312, at 94.


when it comes to giving effect to the results of foreign litigation.365 The doctrine, which is based in common law,366 has been codified in most states through uniform acts, with federal courts applying the law of the state in which they sit.367 The standard approach starts with a strong default presumption in favor of recognizing the foreign judgment.368 From this presumption there are limited and enumerated exceptions, which the defendant has the burden of establishing. Most of these exceptions are susceptible to concrete evidence or objective legal proof, or they involve familiar legal determinations. For example, under both the common law and the uniform acts, courts must refuse to recognize a foreign judgment if the foreign court lacked either subject matter jurisdiction over the claim or personal jurisdiction over the defendant,369 questions that courts evaluate using the same standards as they would in domestic cases. Courts may also refuse recognition if the defendant did not receive adequate notice, if the judgment was obtained by fraud, or if the judgment conflicts with another final judgment or a dispute resolution procedure to which the parties had agreed.370 On these points, parties can produce proof of service or notice, evidence of fraud, the contrary judgment or agreement, and so on.

There are a couple exceptions that could be interpreted more broadly, allowing judges if they wished to review foreign judgments more aggressively. First, courts do not recognize foreign judgments if the judicial system of the foreign state is fundamentally unfair. Second, courts may decline to recognize foreign judgments when they are “repugnant to the public policy” of the forum.371 Yet denials of enforcement are still rare under both exceptions.372

365 See, e.g., Kevin M. Clermont, Jurisdictional Salvation and the Hague Treaty, 85 CORNELL L.

REV. 89, 89 (1999); Silberman, supra note 108, at 351–52; Stephan, supra note 312, at 94. 366 See, e.g., Hilton, 159 U.S. 113; RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW

§ 481 9 (1987). 367 The one exception to the state-law doctrine is the federal SPEECH Act, as noted

above. See note x, supra. Thirty-one states and the District of Columbia have enacted the 1962 Uniform Foreign Money Judgments Recognition Act (UFMJRA), Uniform Law Commission, http://www.uniformlaws.org/Act.aspx?title=Foreign%20Money%20Judgments%20Recognition%20Act (last visited May 28, 2015). That uniform act was updated in 2005, and the resulting Uniform Foreign-Country Money Judgments Recognition Act (UFCMJRA) has been adopted by twenty states and the District of Columbia. See Foreign-Country Money Judgments Recognition Act, Uniform Law Commission, http://www.uniformlaws.org/Act.aspx?title=Foreign-Country%20Money%20Judgments%20Recognition%20Act (last visited May 28, 2015).

368 See, e.g., Whytock & Robertson, supra note 77, at 1465; RESTATEMENT (THIRD) OF

FOREIGN RELATIONS LAW § 481 (1987). 369 See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 482(1) (1987); UFCMJRA

§ 4(b) (2005). 370 See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 482(2) (1987); UFCMJRA

§ 4(c) (2005). 371 UFCMJRA § 4(c)(3) (2005). 372 See Stephan, supra note 312, at 94 (courts unwilling to reject foreign judgments based


Why have these exceptions not expanded in practice, like Rule 4(f)(3)’s safety valve? Two possible, perhaps complimentary, explanations are worth considering. First, the exceptions are phrased as high bars: the foreign judicial system must be fundamentally unfair, the judgment must be repugnant to public policy.373 Second, judges are sensitive to institutional capacity concerns implicated by searching reviews of foreign judicial systems.374 Perhaps because of these capacity concerns, judges have downplayed the evaluation of foreign judicial systems as a whole. Instead, this particular exception has morphed in practice into inquiring whether the individual proceedings in question were fundamentally unfair.375 Judges have thus swapped out the broad, difficult, and politically sensitive factual question for one that is both narrower and more amenable to concrete evidence obtainable by the parties.

So far, so good. But building on this practice, the revised uniform act—published in 2005 and adopted by twenty states and the District of Columbia—has codified two additional case-specific grounds for refusing to recognize foreign judgments: courts may decline to recognize a foreign judgment if there is “substantial doubt about the integrity of the rendering court” or if the “specific proceeding … was not compatible with the requirements of due process of law.”376 Note the vague phrasing of these exceptions, which do not project a comparably high bar as the systemic unfairness and public policy exceptions. What is “substantial doubt”? Whose standards of “due process” should the court apply? This effort to codify and thus rationalize judicial decisionmaking may instead serve to open space for parochial pressures to grow.

Just as standards gravitate towards the shape of rules, so rules are softened around the edges as judges make exceptions when justice demands.377 When those exceptions are in turn codified, they multiply the edges (so to speak) that

on systemic unfairness of foreign legal systems).

373 See, e.g., Heiser, supra note 3, at 640–41, 653 (collecting cases). 374 This institutional self-awareness could also explain the demise of the reciprocity

requirement for foreign judgments. Back in 1895, the Supreme Court held that the presumption of enforcing foreign judgments is overcome when the foreign jurisdiction would not have enforced a U.S. judgment in similar circumstances. [Hilton] The resulting reciprocity requirement imposed a heavy burden on courts, which had to determine nuances of foreign law regarding judgment enforcement. See Coyle, supra note 27, at 1112 & n.5. Further, refusing to enforce a foreign judgment for lack of reciprocity elevated systemic concerns over party fairness to a degree that proved difficult for courts to accept in practice. The reciprocity requirement dropped out of usage and was not included in the uniform acts, though it has recently made a reappearance—amid much controversy—in a new model statute proposed by the ALI.

375 See Stephan, supra note 312, at ? 376 See Foreign-Country Money Judgments Recognition Act, Uniform Law Commission,

http://www.uniformlaws.org/Act.aspx?title=Foreign-Country%20Money%20Judgments%20Recognition%20Act (last visited May 28, 2015).

377 See Schauer, supra note 122, at 804 (summarizing literature).


can be softened. In short, there is a trade-off between identifying exceptions in advance (which may aid efficiency in decisionmaking) and leaving judges to identify exceptions when circumstances require (which may temper pressures to move too quickly to exception-based reasoning). Thus the 1993 amendments to Rule 4, in attempting to encourage greater application of the Service Convention through codification, may instead have encouraged courts to find exceptions to the Convention’s applicability too easily. Similarly, the additional exceptions included in the new uniform act may encourage judges to deny recognition of foreign judgments at higher rates, even if the uniform act is merely codifying what some courts have already been doing in practice. On this note of caution, let us turn to prescription.

V. AVOIDING PAROCHIAL PROCEDURE

Discretion is not the enemy; unbounded discretion may be. The trade-offs between rules and standards have been thoroughly cataloged.378 The more limited goal here is to outline a formalist-leaning approach to decisionmaking in the context of unfamiliar law and complex facts, one that starts as a rule but leaves room for discretion at the margins. By avoiding open-ended discretion at the outset, such decisional ordering can protect against unruly rulification, which can in turn sabotage the very fairness gains sought from standards. A loosening of the rubric at later stages of analysis, however, after the bulk of cases has been resolved, preserves discretion where it matters most: on the margins where rules become over- or under-inclusive.379

The decisional ordering I have in mind would occur in three stages. The preliminary inquiry would be rule-like and would explicitly sort cases into default categories,380 perhaps through a strong initial presumption that reflects how the political branches have already balanced systemic interests in general terms. In the context of transnational litigation, for example, private law treaties ratified by the United States might be presumed applicable even if they are not mandatory.381 Similarly, in the context of forum non conveniens, courts might start with a strong presumption in favor of exercising congressionally granted jurisdiction.382

378 See, e.g., sources gathered in note x, supra. 379 Cf. Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L.

REV. 1 (2007). 380 Cf. Goldsmith, supra note 29, at 1425–26 (discussing W.S. Kirpatrick & Co. v.

Environmental Tectonics Corp., 493 U.S. 400 (1990), as implementing a clear initial presumption under the Act of State doctrine that relegates fine-grained inquiry to “exceptional cases”).

381 See Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for the S. Dist. of Iowa, 482 U.S. 522, 556 (1987) (Blackmun, J.) (purposing a default presumption that the Evidence Convention should apply because the Convention already “largely accommodated all three categories of interests [foreign interests, U.S. interests, and the interests of the private international law system] relevant to a comity analysis”).

382 [Cf. to presumption against extraterritoriality here?]


The second stage of analysis would then introduce additional, but limited, considerations.383 The critique is not of all multifactor tests in all contexts, but rather of multifactor tests for unfamiliar legal questions involving difficult-to-ascertain facts, where less relevant or redundant factors can overwhelm the test if they are immediately pressing or easier to assess. Some considerations—like efficiency and judicial workload—need not be specified; such factors will always color judges’ calculus whether or not they are explicit,384 and their enumeration may lead to undue emphasis. Others—like the balancing of systemic interests—may be best accounted for in the framing of initial presumptions, given the difficulty of assessing them accurately on a case-by-case basis. In terms of structure, balancing tests invite clutter, as considerations can be named without assigning relative weight.385 Self-sufficient exceptions to a presumption, on the other hand, have built-in weight (they overcome the presumption), which may beneficially constrain their enumeration.

There should then be an additional level of inquiry that is reached only in the marginal cases (though depending on the subject, the margin may still be large). This analysis may not be entirely distinct from the second stage: perhaps, for example, the final enumerated exception is framed as a residual catch-all. The important point is that it should not need to be addressed in average cases; the residual exception might be phrased, then, as a very high bar, akin to the public policy exception to the recognition of foreign judgments.

Finally, throughout the analysis, consideration should be given to the manageability of the factual inquiries asked of courts: what can judges accurately determine and parties reliably establish? Piper illustrates the pitfalls of invoking decisional ordering without thorough consideration of the manageability of the resulting inquiry: at the threshold of the forum non conveniens inquiry in transnational cases, the Court instructed lower courts to consider only whether the remedy available in the alternative forum was grossly inadequate—but determining gross inadequacy still requires an inquiry into foreign law, which can then mire courts in complex evaluations. Compare that inquiry to the factual inquiries involved in the application of the Service

383 Too many considerations in run-of-the-mill decisions can encourage the conscious or

sub-conscious use of heuristics, increasing error rates. See Beebe, supra note 116, at 1645–46 (observing that “multifactor tests of ten or even eight factors appear to ask too much of the judge’s ability simultaneously to weigh competing concerns” and recommending tests be limited to three or four factors). For additional legal scholars drawing this connection from the behavioral psychology literature, see for example VERMEULE, supra note 116, at 5; Schauer, supra note 122, at 811–12.

384 Consider, for example, the emphasis on efficiency and delay in the context of the Evidence Convention. See Part IV.A.1, supra.

385 Cf. Bone, supra note 125, at 2016 (critiquing multifactor tests for, inter alia, lacking clear principles to guide the normative task of comparing values).


Convention, which are much more manageable.386 To the extent certain inquiries are necessary but strain judicial capacity, burdens of proof (or standards of review) can be used to resolve uncertainty in favor of system-enhancing outcomes.

What would this look like in practice? With transnational discovery disputes, an initial presumption might take one of several forms: If the Supreme Court revisited the issue, it might adopt Justice Blackmun’s presumption that the Evidence Convention applies, or at least that it presumptively applies if there is a possible conflict with foreign law. Even without Supreme Court intervention, Courts of Appeal could flip the burden of proof so that the party opposed to the Evidence Convention’s application would have to persuade the court that the Convention should not apply.387 In cases where a party claims a conflict with foreign law, there is no way to escape the inquiry into what the foreign law requires, but that does not mean courts must ask (as they do now) how serious foreign states are about these conflicting statutes. What courts are primarily concerned about in these instances is strategic manipulation by parties, a concern that could be addressed through a bad faith exception, which could also account implicitly for efficiency and party-fairness concerns. Thus if the objecting party has previously sought similar discovery itself (raising fairness concerns) or delayed in raising its objections (magnifying efficiency concerns), that “bad faith” could overcome the initial presumption in favor of the Convention or satisfy the burden of persuasion against the Convention. Similarly, instead of asking how narrow the discovery request is, a judge might better ask how narrow the objection to it is: a narrow objection by the party invoking the Convention signals better faith. Framed as a good faith/bad faith evaluation, the inquiry focuses on the context and parties of specific cases, where trial courts have the most insight and the most value-added. Indeed, on the rare occasion when such decisions are appealed, the higher court should review the question of foreign law first and de novo, but if it agrees with the trial court’s analysis of the legal conflict, it should largely defer to the trial court’s determination of good or bad faith.

With forum non conveniens, the existing presumption against foreign plaintiff’s choice of forum has been thoroughly and convincingly critiqued elsewhere.388 It is the opposite of a presumption that accounts for the rough reciprocity of private international law. A more appropriate presumption, from the perspective of systemic interests, would be a presumption in favor of retaining jurisdiction if the suit was brought in the defendant’s home forum. The analysis following this initial presumption should then be much simplified. Concerns about judicial workload, efficiency, or even the cost or difficulty to

386 See Part IV.C, supra. 387 See Born & Hoing, supra note 18, at 401–2 (raising similar concerns). 388 See sources gathered in note x, supra.


private parties should not be distinct or central considerations. Rather, the traditional presumption in favor of a plaintiff’s choice of forum might be subjected to a handful of exceptions that then merit closer, case-by-case analysis. Candidates include if the case is “foreign-cubed”; if almost all of the evidence is located in another country; or if another country has a particularly significant nexus with the case. If one of these exceptions were invoked, then the court would undertake a more nuanced balancing test. This might be where the court weighs whether the proposed alternative forum is both available and adequate in terms of jurisdiction; whether there is a significant difference in the courts’ access to evidence; whether foreign proceedings would be generally fair for both parties; and whether the judgment would be enforceable.

Granted, there is a bit of an irony in this proposal for a more formalized analysis of transnational procedure. Advocates of formalism in foreign affairs have generally been characterized as “sovereigntists,” skeptical of the international legal order as a constraint on the United States.389 I am instead suggesting a more internationalist or cosmopolitan defense of formalism in at least a subset of foreign affairs cases. Recognizing the realistic constraints on judicial decisionmaking, there are circumstances where more formal rubrics that channel judicial discretion can better balance fairness in individual cases with systemic interests of concern to internationalists. Indeed, this insight might help explain some surprising alignments of the Justices in recent transnational cases.390

The Supreme Court has at times suggested that comity cannot be constrained by formal rules, that it is inherently context-specific.391 This is simply not true.392 Indeed, one of the most traditional embodiments of comity in the U.S. common law—the recognition of foreign judgments—has flourished for more than a century in a rule-like form. On the other hand, there is a risk associated with retaining more standard-like safety valves, namely the risk that such exceptions will be over-extended. Nevertheless, decisional ordering that starts rule-like and progresses towards discretion may best balance multiple overlapping commitments, including the Court’s transsubstantive commitment to managerial judging, the division of labor across the branches, and—most importantly from the perspective of this

389 On classifying scholars as sovereigntists, see, for example …. I mean to use the term

here as a neutral shorthand for a certain scholarly perspective, though it is not one I happen to share.

390 391 [Aerospatiale] 392 [Blackmun dissent in Aerospatiale]; see also Bermann, supra note 164, at 536

(cataloguing “strong presumptions” in comity doctrines meant “to promote a cooperative international regime”). Indeed, as Bill Dodge has recently concluded, the Aerospatiale test and forum non conveniens are the only examples of international comity considerations that are framed as standards rather than as rules. See Dodge, supra note 26.


Article—the rough reciprocity of private international law.

CONCLUSION

This Article first identified a parochial critique that unifies much of the recent literature on transnational litigation. The critique worries that U.S. courts are creating disequilibrium in private international law, which provokes protest and retaliation from allies, raises costs for U.S. parties, and creates access-to-justice gaps. This critique is incomplete, however, to the extent it has not explored why U.S. procedure is sometimes parochial. The most common assumption is that U.S. courts are parochial because individual judges are parochial. But that explanation is incomplete. Many (if not most) individual judges express no bias against foreign defendants, foreign law, or foreign cases in their written decisions. And in some instances—in particular, the recognition of foreign judgments—the courts are decidedly not parochial.

The Article thus proposed an alternative explanation for parochial procedure: that in the context of unfamiliar law, difficult facts, and complexity, judges as constrained decisionmakers will gravitate towards parochial outcomes. Specifically, broadly phrased standards will be simplified into more rule-like rubrics, but given the context of unfamiliar law, judges may import poorly fitting rubrics from not-quite-comparable circumstances. These rubrics will evolve to overemphasize case-specific interests and undervalue systemic interests. With transnational cases, this downplaying of systemic interests will minimize the role of international comity in procedural decisions. Finally, to the extent the resulting rubric asks judges to evaluate foreign facts, information costs may encourage over-reliance on prior judicial opinions, leading to ossified factors. The plausibility of this account was then explored through four common questions of procedure in transnational cases: the applicability of the Evidence Convention and the Service Convention, dismissals for forum non conveniens, and the recognition of foreign judgments.

To the extent this alternative account of parochial procedureis convincing, the Article explored how frameworks for decisionmaking might be fashioned in order to minimize unintentional parochialism. The goal, both in theory and in prescription, is not to rule out the possibility of any parochial decision, but to ensure that doctrines and judicial practice in the aggregate are not mistakenly tilted against the reciprocity on which private international law depends. Underlying the entire project, then, is a normative assumption that U.S. courts should be active and cooperative participants in the horizontal transnational system of private dispute resolution.

While the Article has focused on the context of private international law, the dynamics it explores and the institutional design considerations it proposes may be equally applicable to other complex and abstruse areas of law that involve difficult-to-discern general facts and broader systemic interests—for


example, securities law,393 antitrust,394 patent disputes, bankruptcy appeals, and perhaps complex litigation.395 In such circumstances, the discretion of trial judges—and the interests such discretion is meant to promote—may be best protected by obviating the need to exercise it in every case.

393 Indeed, Bainbridge and Gulati have offered a similar analysis of the use of heuristics in

securities law. See generally Bainbridge & Gulati, supra note 112. 394 Cf. Rebecca Haw Allensworth, The Commensurability Myth in Antitrust (forthcoming). 395 See generally Bone, supra note 125 (discussing similar considerations in the context of

class actions).

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