Table of Contents Introduction I. The System of Private International Law II. The Parochial Critique III. Parochial Pressures A. Of Constraints and Aggregated Effects B. Complexity and the Search for Rubrics C. Case Myopia and the Miscalibration of Factors D. Uncertain Facts and Ossified Factors IV. When Is Procedure Parochial A. The Hague Evidence Convention B. Forum Non Conveniens C. The Hague Service Convention D. Recognition of Judgments V. Avoiding Parochial Procedure Conclusion Introduction
When it comes to transnational litigation, are the federal courts isolationist or imperialist? Some scholars worry that U.S. courts are shirking cases that involve foreign litigants, foreign laws, or foreign harms. (1) Others worry that the courts are ignoring foreign sovereign interests in the cases they do take, whether by compelling broad extraterritorial discovery, declining to apply foreign or international law, or attempting to block foreign proceedings. (2) Though drawn from different debates, these perspectives have in common a concern that the federal courts' procedural decisions are problematically biased in favor of U.S. parties and U.S. law. According to what I call the "parochial critique," this bias has provoked retaliation by foreign courts and legislatures, strained foreign relations, created access-to-justice gaps, and increased regulatory conflict. (3)
Assuming the parochial critique is correct, (4) determining whether and how to fix parochial procedure requires understanding where it comes from. The standard explanation, whether explicit or implied, has been that we have parochial procedure because we have parochial judges--judges who are dismissive of foreigners and hostile to international or foreign law. (5) 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. (6)
That standard account is not entirely satisfying. Most notably, it does not explain the courts' selective parochialism. (7) If judges were the direct source of parochialism, one would expect to see uniformly parochial procedure. But in some areas, like the recognition of foreign judgments, the federal courts are decidedly cosmopolitan. (8) The mistake in the standard account lies in assuming that the whole (outcomes in the aggregate) reflects its component parts (the views of individual judges). Rather, it is possible for an entire system, like the federal courts, to exhibit an orientation that differs from the preferences of its individual members. (9)
This Article explores whether the practice of the courts can be parochial even if individual judges are not. I argue that parochial procedure can result from the accumulation of decisions by trial judges who hold neutral (or even cosmopolitan) views of the transnational order but who operate within well- recognized institutional and behavioral constraints. Given those constraints, reliance on open-ended standards to address complex questions beyond the ken of ordinary judges will encourage the use of heuristics. Those shortcuts will in turn become amplified and ossified as precedents mount, creating path dependence toward consistently parochial outcomes.
In broad strokes, this Article's alternative account goes like this: 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 dynamic effects and multiple layers of competing state interests; and to find foreign facts. Yet judges have limited time and resources, and humans cannot process boundless complexity. Given what we know about bounded rationality, (10) institutional capacity, (11) and the tradeoffs between rules and standards, (12) it is predictable that in this complex context, open-ended discretion will promote parochial outcomes over time--not because discretion allows judges to exercise their parochial priors but because it enables the evolution of tests that increasingly lock in parochial results. (13)
To demonstrate the plausibility of this alternative account, this Article contrasts district court practice in four areas of transnational procedure. In two of these areas--the use of the Hague Evidence Convention (14) and motions to dismiss for forum non conveniens--federal courts have often been criticized for undervaluing foreign interests. (15) Courts almost never require parties to use the Evidence Convention to resolve transnational discovery disputes, (16) and they are more likely to dismiss a case for forum non conveniens if the case involves a foreign plaintiff. (17) In the other two areas--service of process on defendants located abroad under the Hague Service Convention (18) and the recognition of foreign judgments (19)--courts have escaped such criticism. Indeed, federal courts consistently require plaintiffs to comply with the Service Convention, (20) and they are perhaps more willing than the courts of any other country to recognize and enforce foreign judgments. (21)
This Article proposes that the difference in outcomes between these two sets of doctrines reflects their initial structure. The open-ended discretion of the first two doctrines encourages the development of tests that lock in parochial outcomes, thus undermining the very values that the initial standards sought (or at least proclaimed) to protect. (22) The more structured inquiries for judgment recognition and service of process, on the other hand, may have helped to avoid the introduction of heuristics--or at least kept those shortcuts from taking root.
Why these four doctrines? First, the liberality of U.S. courts' recognition of foreign judgments is the hard case for the parochial critique's standard explanation: If the problem is parochial judges, how do we explain the courts' consistent willingness to recognize and enforce the judgments of other countries? (23) Second, forum non conveniens and the Evidence Convention are among the few doctrines where questions of international comity have been phrased as broad balancing tests rather than as more rule-like presumptions. (24) Finally, little attention has been paid to district court application of the Evidence Convention and the Service Convention, so a close study of these doctrines may provide new insights into the practice of transnational litigation in U.S. courts. (25) Ultimately, however, this Article aims to use these examples not to prove causation but rather to problematize it. For if this account of parochialism-by-aggregation is at least plausible, it supports the primary claim of this Article: winning over judges may not be enough to prevent parochial procedure.
This Article starts in Part I by describing the system of private international law and the role of comity and reciprocity within it. It is this comity and reciprocity that the courts' procedural parochialism is said to undermine. Part II identifies the parochial critique as a unifying theme in the literature on transnational litigation in U.S. courts but questions the critique's incomplete causal story. Part III sets out the primary theoretical contribution of this Article: how the interaction between judicial constraints and the complex context of transnational litigation can encourage the evolution of parochial doctrines. Part IV maps the theoretical argument onto 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 decisionmaking structures that may prevent, or at least minimize, aggregated parochialism. The solution is not to remove all judicial discretion, as discretion allows judges to be sensitive in individual cases to fairness, efficiency, and equity. (26) Rather, greater use of presumptions and sequential decisionmaking can channel judicial discretion to the marginal cases where it provides the most value, without those marginal cases overtaking--and distorting--the doctrine as a whole.
The System of Private International Law
The parochial critique, as defined in the next Part, is characterized by a concern that federal courts' parochial orientation is disrupting the reciprocity on which private international law depends. The need for reciprocity is integral to international trade, which requires systems for resolving cross- border disputes. (27) The rules of private international law, as they coalesced in the late nineteenth century, have grown into one such system that is based in domestic courts and managed through principles of international comity. (28)
"Comity" is a notoriously slippery term, taking on different meanings in different contexts. (29) This Article understands comity to mean the accommodation of other countries' jurisdictional interests in return for reciprocal treatment over the long run. (30) Especially since the communication and transportation revolutions in the late nineteenth century, (31) multiple countries may have an interest in adjudicating a given dispute, whether based on the location of the relevant conduct, the nationality of the parties, or some other nexus. (32) This is both good and bad from a governance perspective. Overlapping pools of jurisdiction reduce the risk of unintended regulatory gaps. But they increase the risk of conflict between nation-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. (33) This general concern for reciprocity encourages states and their courts to exercise some restraint in displacing foreign law in transnational...