Rethinking legal globalization: the case of transnational personal jurisdiction.

• Author: Childress, III, Donald Earl
• Position: II. Transnational Personal Jurisdiction C. Critical Evaluation: The Impact of Choice of Law through Conclusion, with footnotes, p. 1525-1559

3. Critical Evaluation: The Impact of Choice of Law

   As already alluded to, transnational cases are different from domestic cases when a personal jurisdiction motion is filed. Transnational cases involve foreign individuals and foreign corporations as defendants; they also involve foreign law. If these individuals and corporations are not amenable to suit in a U.S. forum then the likelihood of suing the individual or corporation substantially diminishes. That is so because foreign defendants are often either amenable to suit in a given U.S. forum or not amenable at all to suit in the United States, unless contacts can be aggregated in a federal question case. (181) To the extent that a foreign defendant is not amenable to suit in the United States, many plaintiffs will not refile in a foreign forum. (182) Thus, the motion to dismiss for lack of personal jurisdiction in a U.S. forum is critical to the case.

   This realization dovetails with another important facet of modern personal jurisdiction litigation in the case of non-U.S, defendants. Plaintiffs do not bring transnational suits in the United States against foreign defendants simply because courts have jurisdiction here; they bring suit because the underlying substantive law is more favorable to their claims. (183) In other words, personal jurisdiction in transnational cases is not about jurisdiction per se but about choice of law. A plaintiff would certainly not bring a transnational suit in the United States solely for the purpose of securing jurisdiction over a foreign defendant when a U.S. court would apply a law that would necessarily doom the plaintiffs case. The personal jurisdiction determination in most transnational cases is, therefore, not about personal jurisdiction in the abstract but about what law a U.S. court will choose to apply against a certain defendant in the transnational case at bar. (184)

   Surprisingly, the connection between personal jurisdiction and choice of law is underanalyzed in the scholarly literature, especially in transnational cases. (185) This is partially due to the Supreme Court, which has stated on multiple occasions in dicta that personal jurisdiction and choice of law are separate inquiries. (186) In these cases, however, the personal jurisdiction discussion was about a domestic case and not about a transnational case. (187) These cases thus reflect the realization that in domestic cases constitutional doctrines such as full faith and credit provide checks on the ability of a plaintiff to sue a multistate corporation. More so, these statements do not account for the burgeoning litigation reality that most transnational cases are resolved on the basis of forum non conveniens motions even before the determination of jurisdiction. (188) This development shows that U.S. courts recognize that choice of law is perhaps the major inquiry in many transnational cases. (189) Put simply, courts reach many personal jurisdiction determinations by examining choice of law through other doctrines like forum non conveniens. Personal jurisdiction is thus a secondary factor in many transnational cases and a proxy for choice of law.

   Recourse to choice of law is illuminating. The historical development of the personal jurisdiction doctrine occurred when the choice-of-law process had settled on certain jurisdiction-selecting rules under the Restatement (First) of Conflict of Laws that sought to provide clear answers to conflicts questions. (190) So, for instance, if a Virginia citizen sued a North Carolina citizen in a Virginia court for a tort that occurred in North Carolina, the Virginia court, assuming it had jurisdiction, would apply North Carolina law. (191) The Virginia court's application of North Carolina law raises issues of interstate relations and federalism. Most notably, there is the question of whether the Virginia court should adjudicate a case or controversy occurring outside of its territory. If the North Carolina defendant is found in Virginia or consents to jurisdiction, then the federalism question is resolved through conflict-of-laws rules that grant the North Carolina defendant similar treatment, subject to constitutional provisions. However, given the fact that during the historical development of the doctrine mobility was limited, the case would be localized in North Carolina, affording North Carolina courts the ability to determine questions of their own law.

   Judicial power is not about power in the abstract but is about the power to declare law. The power to declare law presupposes that a court has the power to choose a certain law, over all others, to govern a case or controversy. As such, the choice-of-law analysis should be connected to the personal jurisdiction analysis. If courts do not declare law in the abstract, then they must choose between laws to determine whether, and in what circumstances, one law or the other governs a case. This leads to the realization that choice of law is not incident to the personal jurisdiction analysis but inextricably connected to it. To put it a slightly different way, the question in cases of judicial jurisdiction should be: "May this decision maker select among the various competing policies reflected in choice of law and local law rules to determine the outcome in this case between these parties?" (192) Personal jurisdiction "is not merely the assertion of the right to decide the case between the parties at a given geographical location.... Rather, selection of the forum selects an entire decision making regime." (193) As such, personal jurisdiction is really a proxy for choice of law.

   Although courts consider choice-of-law concerns when evaluating whether a transnational case should be filed here, they do not address these issues through personal jurisdiction analysis. Rather, they do so through the forum non conveniens doctrine, which is the subject of the next Part.

   3. TRANSNATIONAL FORUM NON CONVENIENS

   In this Part, the Article illustrates how forum non conveniens motions serve as a proxy for both determinations of personal jurisdiction and choice of law and how such a short circuiting of the choice-of-law process may lead to an access-to-justice gap. After describing the doctrine's scope, this Part analyzes its impact in federal and state courts by documenting new empirical evidence on courts' use of the doctrine. Finally, this Part considers the doctrine's implications for a theory of personal jurisdiction that encapsulates choice of law.

1. The Doctrine's Scope

   Forum non conveniens plays a unique role in transnational cases by permitting U.S. courts to allocate adjudicatory authority between the various countries that impact a court's decision. According to the Supreme Court, the "doctrine of forum non conveniens has a long history." (194) The doctrine as we know it--not as a doctrine of comity or abstention but as a concrete, multifactored test--is, however, of relatively recent vintage. The modern doctrine traces its roots in the United States to a law review article published by a New York law firm associate in 1929. (195) According to one commentator, "Not until 1948 was the doctrine accepted for general application in the federal courts, and it received little or no attention in the state courts until after the federal adoption." (196) This application and adoption was due in large part to the Supreme Court's decision in Gulf Oil Corp. v. Gilbert. (197)

   In Gulf Oil, a Virginia plaintiff sued a Pennsylvania defendant corporation in the U.S. District Court for the Southern District of New York for alleged negligence occurring in Virginia. (198) The corporation was registered to do business in New York and Virginia, and thus there was personal jurisdiction in New York. 199 Because all the conduct giving rise to the litigation occurred in Virginia and because the witnesses and evidence were there, the district court dismissed the case on grounds of forum non conveniens. (200) On appeal, the Supreme Court found no error in the dismissal. (201) According to the Court, the forum non conveniens doctrine empowers a federal district court to dismiss a case in favor of another court--here, another U.S. court--even when jurisdiction and venue are established, when private and public interest factors weigh in favor of another adequate forum (202)

   The Court detailed the factors for balancing as follows. The private factors include:

   the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. (203) The public interest factors include:

   [a]dministrative difficulties ... for courts when litigation is piled up in congested centers instead of being handled at its origin; [j]ury duty [a]s a burden that ought not to be imposed upon the people of a community which has no relation to the litigation; ... [the] local interest in having localized controversies decided at home [; and finally, the] appropriateness ... in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself. (204) According to the Court, such discretion was to be used judiciously: "[U]nless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed." (205)) In the domestic forum non conveniens context as outlined in Gulf Oil, the plaintiffs choice of forum should be disturbed only in limited circumstances. (206) Such limited circumstances would appear to be those cases in which the plaintiffs choice of an inconvenient forum...