The Interested Forum - Stanley E. Cox

• Publication year: 1997

The Interested Forumby Stanley E. Cox^*

I. An Introduction to the Interested Forum Way of Thinking

When Brainerd Currie rearranged his essays for publication in book form, he felt it appropriate to lead off with his article about Walton v. Arabian American Oil Co.¹ He considered his comments about that case a "logical point of departure" for his entire theory.² It therefore also might be profitable for us, in this Symposium honoring him, to focus on the types of dilemmas presented by that case. In Walton, a nonresident plaintiff brought suit against a nonresident defendant on a cause of action arising out of conduct which occurred wholly outside the forum.³ Plaintiff did not provide the content of the foreign law where injury occurred, yet the forum's choice-of-law rules said that relief could only come from that foreign law. The New York court in Walton dismissed for failure to provide the content of the foreign law.⁴ Other courts faced with similar facts have heard such cases on the merits, presuming, somewhat dubiously, that the content of unpled foreign law is identical to the content of forum law.⁵ Professor Currie would allow forum law to be applied, under the equally questionable rationale that forum law should always be applied unless the parties offer some persuasive reason why another state's law should instead be applied.⁶ Each of these approaches starts from a fundamentally erroneous presupposition.

The most fundamental question about a case like Walton is whether New York should adjudicate the case at all. I contend New York should not hear such a case. The reason New York should not hear the case is because New York has no right to apply its law to the facts. The knee-jerk reaction on the part of many readers at this point might be, "But Professor Cox, you are confusing adjudicative jurisdiction with legislative jurisdiction.⁷ The reason the New York court should hear the case is because it has personal jurisdiction over the defendant. The only question left is whose law should be applied."

There are many things I might like to say in response to such a reaction, and some of which I shall elaborate on in the course of this brief Essay. Here at the front, however, I wish to emphasize that my responses are deliberately designed to blur and in fact eliminate the artificially imposed distinction between what academics call personal jurisdiction and what they sometimes call jurisdiction to prescribe and at other times refer to as subject matter jurisdiction.⁸

For instance, regarding the insufficiency of doing business qua personal jurisdiction, I might wish to challenge the assumption that New York legitimately may bind a defendant for actions committed anywhere in the world on the basis of some paltry doing business within the territorial confines of New York state.⁹ Power to assert jurisdiction means power to bind, not literally, but via final judgment. New York's power to bind is only meaningful as power to apply law to the actions of the defendant. It is meaningless to discuss some abstract power over the person of the defendant as if such power exists in isolation from what the court will really do with the suit. If the defendant is before the court for decision on the merits, this necessarily means that there has been a determination, or perhaps more accurately an assumption, that it is proper for this court to bind the defendant by the law applied to the merits. I strongly challenge that assumption on Walton-type facts.

Similarly, regarding what might be viewed either as a subject matter or a personal jurisdiction problem, I might wish to explore what should happen when parties consent to the jurisdiction of New York courts to settle a Saudi Arabian dispute. How can party consent force the New York court system to expend resources on something outside its raison d'etre and for which it lacks competence to adjudicate? In other words, is not the New York court's jurisdiction over the parties a manifestation of its power to prescribe rather than an indication of the parties' waiver of personal jurisdiction rules?

Rather than elaborate now in the abstract on these deliberate blurrings of jurisdictional categories, I merely beg the reader's temporary indulgence if I seem to be confusing forms of jurisdiction. I do so only in an effort to take seriously the challenge of this Symposium. We are encouraged by Dean Dessem and the Symposium organizers to write "on a clean slate" regarding choice of law.¹⁰ If we were writing on a truly clean slate, we should seriously ask why New York would want to apply any law to a case like Walton. Neither of the parties is from the forum, nor did any of the litigation producing events occur there. Why not simply tell the parties to go away?

In fact, telling the parties to go away is my preferred solution to the dilemma of cases like Walton. A variant of it was one of the options considered by Professor Currie when he wrote his own article about the case.¹¹ It is my belief Brainerd Currie did not adopt the approach of telling the parties to go away in Walton because he made the same mistake being made by most readers of this Article today. He assumed that jurisdiction had to be taken over at least some cases in which the forum had no interest.¹² He thus accepted without sufficient questioning the personal jurisdiction "givens" of his day. He thus failed to write on a clean slate in this area. Although I will elaborate on my approach herein, let me emphasize two things now about my version of telling the parties to go away that distinguish it from related arguments by Professor Currie many years ago, on the one hand, and by Professor Kramer more recently, on the other.

First, my version of telling the parties to go away is not a form of forum non conveniens dismissal.¹³ A prerequisite of forum non conveniens dismissal is that the forum already possesses valid jurisdiction over the case. My version of telling the parties to go away occurs precisely because the forum does not have valid jurisdiction to start with. I am not dismissing because another forum somewhere else may better hear the case. I am dismissing because the forum chosen may not hear the case.

Second, and similarly, my version of telling the parties to go away is not a dismissal with prejudice. Accordingly, it is not like the Federal Rules of Civil Procedure 12(b)(6) dismissals which I take to be advocated by Professor Kramer¹⁴ and others¹⁵ on some variations of these cases. One thing that makes the Walton facts so interesting is that we do not know whether there was law which legitimately might have been applied by some sovereign somewhere, and by which plaintiff might have recovered.¹⁶ To dismiss under 12(b)(6) or its equivalents, however, means either one of two things, both of which assume, improperly, that the forum can and should apply another sovereign's laws.

The first possibility implied in a 12(b)(6) dismissal is that there was no law anywhere which could have provided the plaintiff the relief requested. In this situation, a 12(b)(6) dismissal means that the forum had power to construe and apply all other potentially interested sovereign's laws and found those laws insufficient to provide the plaintiff relief. I reject this assumption that the forum had power to apply all nations' laws. I contend instead that the forum has power to apply only its own law.

There is, however, a second way to construe a 12(b)(6) dismissal in a case like Walton. It could be argued that a 12(b)(6) dismissal is warranted because the plaintiff failed to properly prove the content of potentially applicable law. Under this view, the plaintiff might have a remedy under foreign law, but having failed properly to plead and prove the foreign law, he should suffer the penalties for his willful and deliberate failure to identify the law under which he might recover. This second type of 12(b)(6) dismissal, however, like the first, equally assumes that the forum would have power to apply potentially applicable foreign law from any jurisdiction where it might exist, if only the plaintiff had properly pointed to it. It is therefore indistinguishable from the first type of 12(b)(6) dismissal in its assumption of inherent authority in the courts of any sovereign to apply any other sovereign's laws. My dismissal in Walton-type situations, however, would be precisely because the forum has no law of its own to apply to the case, and because I believe it has no authority to apply anyone else's law to the facts. The effect of my dismissal therefore would be to leave the parties free to pursue the case in another forum which might have power to apply its law to the controversy.

II. The Interested Forum Approach in Comparison to Potential Alternatives

As a way of developing my rationale for why the forum should not adjudicate a case like Walton, I would like to compare my approach to the alternative rationales which might lie behind the usually unchallenged assumption that the case raises only a choice-of-law rather than a jurisdictional problem. What might motivate a choice-of-law theorist to assume, as apparently almost all choice-of-law theorists who look at the case do, that the Walton litigants and facts are properly before a New York court? Why should the forum feel even a twinge of compulsion to apply some law from somewhere else to facts in which the forum has not the slightest interest? I can think of only two variants of arguments that could be offered in support of New York hearing a case such as Walton. Both types of arguments claim that the forum has an interest in adjudicating the case, although this interest would not be of the kind that would promote any specific forum policies and therefore would not count as interest in an interest analysis sense. Because my position that the forum should not hear the case rejects each of these preferred rationales, it is necessary to explore each in more detail.

Purported forum interest...