The evolving forum shopping system

Cornell Law Review

Volumn 96, Issue 3, 2011, Pages 481-534

  Whytock, Christopher A ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 79955439323     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (379)

1. See, e.g., WALTER K. OLSON, THE LITIGATION EXPLOSION: WHAT HAPPENED WHEN AMERICA UNLEASHED THE LAWSUIT (1991);
2. see also Marc Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. REV. 4, 5-10 (1983) (surveying the history of the litigation explosion claim).
3. See generally WILLIAM HALTOM & MICHAEL MCCANN, DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS 74 (2004) (reviewing scholarly research and concluding that it has "significandy qualified if not refuted claims about mushrooming litigation . . and [has] provided a far more reasonable portrait of our civil legal system and its workings");
4. Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3, 5-10 (1986) (using litigation-rate data to challenge the litigation explosion claim).
5. Michael J. Saks, If There Be a Crisis, How Shall We Know It¶, 46 MD. L. REV. 63, 63 (1986).
6. See, e.g., Spencer Weber Waller, A Unified Theory of Transnational Procedure, 26 CORNELL INT'L L.J. 101, 102 (1993) (noting "explosive growth of transnational litigation" in U.S. courts);
7. see also infra Part II.B (documenting this belief).
8. See ANDREW S. BELL, FORUM SHOPPING AND VENUE IN TRANSNATIONAL LITIGATION 335 (2003) ("[T]he . . . emergence of a global economy[is] a factor which has been apt to generate an increased number of disputes with a transnational dimension ....").
9. See Russell J. Weintraub, Introduction to Symposium on International Forum Shopping, 37 TEX. INT'L L.J. 463, 463-64 (2002) (describing proplaintiff features of the U.S. legal system).
10. See infra Part II .A (documenting and explaining this understanding).
11. As used in this Article, U.S. law refers to either U.S. state law or U.S. federal law.
12. Louise Weinberg, Against Comity, 80 GEO. L.J. 53, 68 (1991).
13. See, e.g., INST, FOR LEGAL REFORM, GLOBAL FORUM SHOPPING FACT SHEET (2008),
14. http://www.instituteforlegalreform.com/images/stories/documents/pdf/ GlobalForum-ShoppingFactSheetpdf(advocating reforms to reduce global forum shopping into U.S. courts);
15. Alan O. Sykes, Transnational Forum Shopping as a Trade and Investment Issue, 37 J. LEGAL STUD. 339, 368-74 (2008) (proposing doctrinal changes to reduce forum shopping);
16. see also infra Conclusion (discussing proposed anti-forum shopping measures).
17. See generally Cassandra Burke Robertson, Transnational Litigation and Institutional Choice, 51 B.C. L. REV. 1081 (2010) (discussing these costs); infra Conclusion (same).
18. See 28 U.S.C. § 1332(a) (2) (2006) (providing for alienage jurisdiction in controversies between "citizens of a [U.S.] State and citizens or subjects of a foreign state").
19. 3 See Friedrich K. Juenger, Forum Shopping, Domestic and International, 63 TUL. L. REV. 553, 554 (1989) ("[F]orum shopping connotes the exercise of the plaintiffs option to bring a lawsuit in one of several different courts.").
20. The term forum shopping is sometimes used pejoratively. See Note, Forum Shopping Reconsidered, 103 HARV. L. REV. 1677, 1683-89 (1990) (discussing, but challenging, reasons for this negative view). However, it is important not to embed the definition of forum shopping with assumptions about whether it is an appropriate behavior. To do so would conflate two distinct modes of analysis: (1) descriptive analysis of forum shopping and its consequences, and (2) normative analysis of forum shopping. Because sound normative analysis of forum shopping depends on accurate evidence regarding actual forum shopping behavior and its consequences, these two modes of analysis should be kept distinct
21. See Sykes, supra note 10, at 339;
22. cf. Juenger, supra note 13, at 560 (distinguishing domestic and international forum shopping).
23. See, e.g., Global Forum Shopping, INST, FOR LEGAL REFORM, http://www.instituteforlegalreform.com/component/ilr-issues/29/item/GFS.html? expand=1(last visited Nov. 9, 2010) ("Global forum shopping is a disturbing new trend in which foreign plaintiffs take advantage of the unusually expansive features of the American judicial system to file lawsuits in U.S. courts.").
24. See Daniel J. Dorward, The Forum Non Conveniens Doctrine and the Judicial Protection of Multinational Corporations from Forum Shopping Plaintiffs, 19 U. PA. J. INT'L ECON. L. 141, 165 (1998) (noting that "a domestic plaintiff injured abroad is as likely to forum shop in the United States as is a foreign plaintiff);
25. 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, 502 (1993) ("Courts in the United States attract plaintiffs, both foreign and resident, because they offer procedural advantages beyond diose of foreign forums ....").
26. Andrew Bell refers to this condition as "concurrent jurisdiction." See BELL, supra note 5, at 5 ("The existence of concurrent jurisdiction is the sine qua non for [forum shopping].").
27. See id. at 25 ("The raison d'être for forum shopping lies in lack of uniformity throughout the world's legal systems ....").
28. 9 Even if legal systems were formally homogeneous, nonlegal differences could motivate forum shopping. See ARTHUR TAYLOR VON MEHREN, THEORY AND PRACTICE OF ADJUDICATORY AUTHORITY IN PRIVATE INTERNATIONAL LAW: A COMPARATIVE STUDY OF THE DOCTRINE, POUCIES AND PRACTICES OF COMMON- AND CIVIL-LAW SYSTEMS 194 (2003) ("A party will, other things being equal, prefer to litigate in a forum that is, geographically speaking, readily accessible, impartial (or even inclined to favour him), and whose administration of justice is within his cultural and legal tradition.").
29. See BELL, supra note 5 ("[T] he venue in which a transnational dispute is to be resolved may be of vital importance for the ultimate outcome of the dispute. This will especially be so the greater the differences, whether in matters of procedure, substantive principles of law, or conflict of law rules, between potentially available forums.").
30. See MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1329 11th ed. 2004) (defining "transnational");
31. Christopher A. Whytock, Domestic Courts and Global Governance, 84 TUL. L. REV. 67, 71 n.11 (2009) (same).
32. See Whytock, supra note 21.
33. See BELL, supra note 5, at 5 (noting that in transnational litigation, "there will invariably be a number of potential forums whose jurisdictional rules would, prima facie at least, permit the dispute to be entertained").
34. See id. at 15 (noting "lack of uniformity ... in states' internal laws").
35. This perspective is based on the standard rational-choice model of the decision to sue, according to which a plaintiff will only file a claim if the expected value of the claim (the probability that the plaintiff will win, p, times the amount of recovery if it wins, w, less the costs of suit, c) is greater dian zero. The so-called "filing condition" is thus (p*w) - c> 0. ROBERT G. BONE, CIVIL PROCEDURE: THE ECONOMICS OF CIVIL PROCEDURE 33-34 (2003). Extending this basic model to transnational forum shopping, a rational plaintiff will file her claim in the legal system that maximizes (p*w) - c.
36. See Debra Lyn Bassett, The Forum Game, 84 N.C. L. REV. 333, 383 (2006) ("The law regularly provides more dian one audiorized, legitimate forum in which a litigant's claims may be heard. To shop among those legitimate choices for the forum that offers the potential for the most favorable outcome is the only rational decision under rational choice theory and game theory because forum shopping maximizes the client's expected payoff.");
37. Nita Ghei & Francesco Parisi, Adverse Selection and Moral Hazard in Forum Shopping: Conflicts Law as Spontaneous Order, 25 CARDOZO L. REV. 1367,1372 (2004) ("[P]laintiffs will generally seek to file claims in jurisdictions where the expected net gain is the largest").
38. Russell J. Weintraub, International Litigation and Forum Non Conveniens, 29 TEX. INT'L L.J. 321, 323 (1994).
39. See generally Allan R. Stein, Forum Non Conveniens and the Redundancy of Court-Access Doctrine, 133 U. PA. L. REV. 781, 786-94 (1985) (arguing that these different types of courtaccess decisions are largely redundant).
40. In terms of the rational-choice model, other tilings being equal, the lower the expectation of a favorable court-access decision, the lower the value of pr, and the lower the value oip, the less likely the filing condition will be satisfied in a particular legal system and the less likely that (p*w) - c will be maximized in that system.
41. Cf. Michael E. Solimine, The Quiet Revolution in Personal Jurisdiction, 73 TUL. L. REV. 1, 12 (1998) ("Rational litigants will take into account the prevailing (and shifting) biases of personal jurisdiction in deciding whether to bring a case at all, and in what forum, and whether (and how far) to litigate the personal jurisdiction defense, once suit is brought").
42. Christopher A. Whytock, Myth of Mess? International Choice of Law in Action, 84 N.Y.U. L. REV. 719, 724 (2009).
43. Ordinarily, domestic courts apply domestic procedural law widiout making a choice-of-law decision. EUGENE F. SCOLES ET AL., CONFLICT OF LAWS 128 (4th ed. 2004).
44. See Ralph U. Whitten, U.S. Conflict-of-Laws Doctrine and Forum Shopping International and Domestic (Revisited), 37 TEX. INT'L L.J. 559, 567-68 (2002) (noting the impact of choiceof-law doctrine on international forum shopping and arguing that it is stronger than the impact on domestic forum shopping). In addition to the relatively simple relationship between choice of law and forum shopping described here, there can be more complex forum shopping behavior, such as where a plaintiff selects a court because its choice-of-law rules point to the preferred substantive law of another legal system.
45. Cf. Ghei & Parisi, supra note 25, at 1372 ("[T]he certainty of knowing that forum law will always apply could . . . encouragfe] forum shopping.").
46. Cf. ROBERT COVER, The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation, in NARRATIVE, VIOLENCE, AND THE LAW: THE ESSAYS OF ROBERT COVER 51, 58-59 (Martha Minow et al. eds., 1992) (describing "strategic behavior entailed in forum shopping")- Strategic behavior occurs when one actor's ability to further his or her goals depends on how other actors behave. Under these conditions, each actor's decisions must take into account the expected actions of those other actors.
47. See David A. Lake & Robert Powell, International Relations: A Strategic-Choice Approach, in STRATEGIC CHOICE AND INTERNATIONAL RELATIONS 3, 3-6 (David A. Lake & Robert Powell eds., 1999) (noting that "choices ... are frequendy strategic; that is, each actor's ability to further its ends depends on how other actors behave, and therefore each actor must take the actions of others into account"). Thus, the strategic behavior of an actor is a function not only of that actor's preferences but also of that actor's expectations about the behavior of other relevant actors.
48. See Weinberg, supra note 9, at 68 ("What has evolved seems to be a forum shopping system. The plaintiff can sue the defendant in any number of states having 'minimum contacts' with, or general jurisdiction over, the defendant. . . [and] [t]he forum is free to apply its own law to any issue it has some interest in governing." (footnotes omitted)).
49. See Lake & Powell, supra note 33, at 9 (observing that without knowing how the other party will act, "the [actor] has to base her decision on the [other party's] past behavior").
50. Court decisions are not necessarily the only source of information. Repeat players may develop intuitions based on their own direct litigation experience, regardless of publication, with these intuitions giving repeat players an advantage over other parties in transnational litigation. See generally Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV. 95, 97-104 (1974) (discussing the advantages of repeat players in litigation).
51. In the United States, most court decisions are not published. See Kevin M. Clermont & Theodore Eisenberg, Litigation Realities, 88 CORNELL L. REV. 119, 125-26 (2002) (explaining that published decisions are a small percentage of total court decisions and are not necessarily representative of unpublished decisions). Unpublished decisions are, of course, important and known to the parties to the particular suits in which courts make the decisions. However, because parties beyond these particular suits are unlikely to have widespread knowledge of these decisions, unpublished decisions are unlikely to be as important as published decisions in shaping the expectations of plaintiffs in general.
52. See Hillel Y. Levin, Making the Law: Unpublication in the District Courts, 53 VILL. L. REV. 973, 988 (2008) ("[Unpublished] opinions cannot be systematically reviewed and researched without immense resources.");
53. Stephen L. Wasby, Unpublished Court of Appeals Decisions: A Hard Look at the Process, 14 S. CAL. INTERDISC. L.J. 67, 96 (2004) (noting that "'[a]n unpublished disposition is, more or less, a letter from the court to parties familiar with the facts' . . [and] 'is not written in a way that will be fully intelligible to those unfamiliar with the case'"
54. (quoting Hart v. Massanari, 266 F.3d 1155, 1176, 1178 (9th Cir. 2001))).
55. See infra Part H.A.
56. See infra Part II.B.
57. See Weintraub, supra note 26, at 323-24 (explaining reasons for this preference).
58. See Jack L. Goldsmith & Alan O. Sykes, Lex Loci Delictus and Global Economic Welfare: Spinozzi v. ITT Sheraton Corp., 120 HARV. L. REV. 1137, 1137 (2007) ("The substantive tort law and related procedural mechanisms available in U.S. courts are generally much more favorable to plaintiffs, and produce much larger recoveries, than the law and procedures available in foreign courts.").
59. Weintraub, supra note 26, at 323;
60. see also Whitten, supra note 31, at 567 (comparing foreign "substantive law of liability or remethes that is either anti-recovery or ththat would allow a lower recovery compared to U.S. law" with U.S. courts that will apply "pro-recovery rules").
61. See Russell J. Weintraub, Choice of Law for Products Liability: Demagnetizing the United States Forum, 52 ARK. L. REV. 157, 163 (1999) (noting advantages of strict liability and punitive damages in the United States).
62. See Weintraub, supra note 26 (discussing these advantages);
63. see also Silberman, supra note 16, at 502 ("Courts in the United States attract plaintiffs, both foreign and resident, because they offer procedural advantages beyond those of foreign forums ....").
64. Weintraub, supra note 6, at 463;
65. see also BELL, supra note 5, at 28 (calling the United States "a forum shopper's delight").
66. See supra Part I.
67. 95 U.S. 714, 722 (1878).
68. See id. ("[N]o State can exercise direct jurisdiction and authority over persons or property without its territory.").
69. Courts did not require territorial presence when there was express or implied consent of the defendant JACK H. FRIEDENTHAL ET AL., CIVIL PROCEDURE 106 (4th ed. 2005).
70. Eventually, the concept of implied consent developed into "a major means of asserting in-personam jurisdiction over a mobile, business citizenry when a strict application of territorial jurisdiction premised on physical presence would have precluded jurisdiction." Id. at 111.
71. As William Richman and William Reynolds explain:
72. Absent in-state service, courts upheld jurisdiction over non-domiciliary natural persons only if they could infer consent from the defendant's engaging in activities that were closely regulated by the state. If defendant caused personal or economic injury as a result of simply travelling through the state or engaging in unregulated business activity in the state, the state courts could not compel him to appear and defend. The resident plaintiff was forced to travel to defendant's home to litigate.
73. The ability of the territorial theory to reach the corporate defendant was similarly limited; if the corporation was not doing business locally, the state could not exercise jurisdiction. "Doing business" meant activity of a systematic and continuous nature, but a corporation by dint of a modern chain of distribution could derive very substantial economic benefit from a state without doing business there.
74. WILLIAM M. RICHMAN & WILLIAM L. REYNOLDS, UNDERSTANDING CONFLICT OF LAWS 29 (3d ed. 2002) (footnotes omitted).
75. Stein, supra note 27, at 802.
76. 326 U.S. 310 (1945).
77. See Shaffer v. Heitner, 433 U.S. 186, 204 (1977) ("The immethate effect of this departure from Pennoyefs conceptual apparatus was to increase the ability of the state courts to obtain personal jurisdiction over nonresident defendants.");
78. VON MEHREN, supra note 19, at 399 (arguing that "American jurisdictional theory became even more embracive and, in the view of some, more aggressive" after International Shoe).
79. Int'l Shoe, 326 U.S. at 316
80. (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
81. See id. (allowing for jurisdiction even "if [defendant] be not present within the territory of the forum").
82. See Goldsmith & Sykes, supra note 41, at 1144 (noting that "U.S. firms and firms widi close U.S. connections can be sued in U.S. courts for torts committed outside the United States");
83. 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, 336 (2004) (noting that "multinational defendants with offices or extensive activities in the United States can be sued here even on claims that bear no relationship to the activities in the United States").
84. See FRIEDENTHAL ET AL., supra note 48, at 129-30.
85. See id.
86. Without personal jurisdiction, a plaintiffs transnational lawsuit is subject to dismissal. FED. R. CIV. P. 12(b)(2).
87. 59 See VON MEHREN, supra note 19, at 191 ("The analysis employed [in International Shoe] increases the number of available forums, with the result that ordinarily a plaintiffs forum is produced.");
88. Juenger, supra note 13, at 557 (arguing that International Shoe "enhanced the potential for forum shopping" because it was "intended to expand ratjer than to constrict" personal jurisdiction);
89. Peter Huber, Courts of Convenience or Have Lawsuit, Will Travel, REGULATION, Sept/Oct 1985, at 18, 20 (arguing that International Shoe's minimumcontacts test allows many large corporations to "be sued everywhere"). Some litigants and interest groups use this logic as part of their legal strategies. For example, in Goodyear Luxembourg Tires, S.A. v. Brown, now pending before the Supreme Court, the petitioners and their amici curiae supporters are using claims about permissive personal jurisdiction and its impact on forum shopping to argue for a more restrictive approach to general jurisdiction in transnational product liability actions.
90. See Brief for Petitioners at 9, Goodyear, No. 10-76 (U.S. Nov. 19, 2010), 2010 WL 4624153 at*9 (arguing that approving North Carolina's approach to general jurisdiction— based on which it asserted jurisdiction over petitioners- would be an "invitation to rampant forum shopping");
91. Brief of the Org. for Int'l Inv. & Ass'n of Int'l Auto. Mfrs. Inc. as Amici Curiae in Support of Petitioner at 16, Goodyear, No. 10-76 (U.S. Nov. 19, 2010), 2010 WL 4803149 at*16 (asserting that "[t]he U.S. legal system has had a problem with forum shopping" and that affirming the state court's decision "would dramatically expand opportunities for forum shopping").
92. See JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS 7 (Boston, Hilliard, Gray, & Co. 1834) ("It is plain, that the laws of one country can have no intrinsic force . . . except within the territorial limits and jurisdiction of that country.").
93. Id. at 7-8 ("Whatever extra-territorial force [a nation's laws] are to have, is the result, not of any original power to extend them abroad, but of that respect, which from motives of public policy other nations are disposed to yield to them ....");
94. see also SCOLES ET AL., supra note 30, at 18-20 (describing this approach and noting that it "was generally accepted as an operational theory in the courts during the half century from 1850-1900").
95. See SCOLES ET AL., supra note 30, at 20-21 (explaining Beale's vested-rights theory).
96. RESTATEMENT (FIRST) OF CONFLICT OF LAWS §§ 377-378 (1934).
97. Id. § 377.
98. SCOLES ET AL., supra note 30, at 713.
99. RESTATEMENT (FIRST) OF CONFLICT OF LAWS § 311.
100. See Ghei & Parisi, supra note 25, at 1374 (arguing that, in theory at least, "[a]s long as the rules [of the First Restatement] are applied consistendy, the same substantive law should apply to identical facts, resulting in identical outcomes . . . [and that t]his rulesbased system would eliminate forum shopping by ensuring uniform and predictable results.").
101. But seejuenger, supra note 13, at 559 (noting the anti-forum shopping purpose of a place-of-wrong approach but arguing that various "escape devices" enabled judges to deviate from strict territoriality, thus diluting its anti-forum-shopping effects).
102. Weintraub, supra note 26, at 323.
103. See generally RICHMAN & REYNOLDS, supra note 49, at 180 (noting that the traditional First Restatement choice-of-law system "prevailed in most American courts until the work of a new generation of judges and scholars began to supplant it in the [1950s] and [1960s]").
104. For a leading account of this revolution, see generally SYMEON C. SYMEONIDES, THE AMERICAN CHOICE-OF-LAW REVOLUTION: PAST, PRESENT AND FUTURE (2006).
105. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145 (1971).
106. See Whytock, supra note 30, at 725-28 (describing these modern mediods).
107. See, e.g., SCOLES ET AL., supra note 30, at 107 (noting "homeward trend" in American choice of law);
108. Goldsmith & Sykes, supra note 41, at 1137 ("[C]ompared to the lex loci rule, the modern rules have one unmistakable consequence: they make it more likely that the forum court will apply local tort law to wrongs that occurred in another jurisdiction.");
109. Whitten, supra note 31, at 560 (arguing that "[b]oth the empirical evidence and the existing scholarly consensus . . . indicate that there is a strong tendency under all modern conflicts systems to apply forum law");
110. see also SYMEONIDES, supra note 69, at 334 (noting "widely held assumption" that courts applying modem methods have strong pro-forum-law bias).
111. FRIEDRICH K. JUENGER, CHOICE OF LAW AND MULTISTATE JUSTICE 148 (spec. ed. 2005).
112. Whitten, supra note 31, at 568.
113. See Juenger, supra note 13, at 558 (arguing that modern choice-of-law mediods' forum-law tendency "present[s] yet another incentive to the forum shopper");
114. Whitten, supra note 31 (describing the impact of pro-domestic-law bias on transnational forum shopping).
115. See, e.g., Harold Hongju Koh, Transnational Public Law Litigation, 100 YALE LJ. 2347, 2365 (1991) (referring to the post-1970s "explosion of transnational commercial litigation in United States courts" (emphasis omitted));
116. Waller, supra note 4, at 102 (noting "explosive growth of transnational litigation" in U.S. courts);
117. John Bies, Comment, Conditioning Forum Non Conveniens, 67 U. CHI. L. REV. 489, 489 (2000) (noting the "explosion of international civil litigation in U.S. courts").
118. Cf. DAVID HELD & ANTHONY MCGREW, GLOBALIZATION/ANTI-GLOBALIZATION 1 (2002) (defining globalization as "expanding scale, growing magnitude, speeding up and deepening impact of transcontinental flows and patterns of social interaction").
119. See BELL, supra note 5, at 4 ("Quite simply, more international trade means more transnational disputes, contractual, quasi-contractual, and arising from the negligent provision of goods and services.");
120. David W. Robertson, The Federal Doctrine of Forum Non Conveniens: "An Object Lesson in Uncontrolled Discretion,"'29 TEX. INT'L L.J. 353, 367-68 (1994) ("[Developments in industrial, communications, and transportation technology have facilitated international activity, which in turn has multiplied the number of international disputes.");
121. Frank Eric Marchetti, Comment, Alienage Jurisdiction over Stateless Corporations: Revealing the Folly o/Matimak Trading Company v. Khalily, 36 SAN DIEGO L. REV. 249, 250 (1999) ("One unavoidable consequence of increased interaction between citizens of the United States and . . . foreign businesses will be an increase in legal disputes involving parties from foreign countries.").
122. See Sykes, supra note 10, at 339 ("Plaintiffs regularly bring tort and tortlike cases in U.S. courts seeking damages for harms that have occurred abroad, attracted by higher expected returns dian are available in the jurisdiction in which the harm arose.");
123. Weintraub, supra note 6, at 463 (describing the United States as "first among the world's magnet forums").
124. See, e.g., Société Nationale Industrielle Aérospatiale v. U.S. Dist Court for the S. Dist of Iowa, 482 U.S. 522, 552 (1987) (Blackmun.J., concurring in part and dissenting in part) (noting that "transnational litigation is increasing");
125. Jenny S. Martinez, Towards an International Judicial System, 56 STAN. L. REV. 429, 441-42 (2003) (stating that "wit the 'globalization' of any number of aspects of human endeavor— commerce, communications including the Internet, crime, human rights—the importance of transnational issues in national courts has grown," and that "the number of cases witj transnational elements has also continued to increase ");
126. Eugene J. Silva, Practical Views on Stemming the Tide of Foreign Plaintiffs and Concluding Mid-Atlantic Settlements, 28 TEX. INT'L L.J. 479, 480 (1993) ("Over the last fifteen years . . . multinational litigation has demonstrated particularly sustained growdi.");
127. Molly M. White, Home Field Advantage: The Exploitation of Federal Forum Non Conveniens by United States Corporations and Its Effects on International Environmental Litigation, 26 LOY. L.A. L. REV. 491, 493 (1993) ("As the world has become more interdependent, the amount of litigation between foreign citizens and United States nationals also has escalated.").
128. In prior scholarship, I also made this assumption. See Whytock, supra note 21, at 74 (noting that "legal scholars speculate that globalization and the intensifying transnational interactions it entails have caused transnational litigation to grow in recent decades").
129. Paul R. Dubinsky, The Future of Transnational Litigation in U.S. Courts: Distinct Field or Footnote?, 101 AM. SOC'Y INT'L L. PROC. 365, 366 (2007).
130. HAROLD HONGJU KOH, TRANSNATIONAL LITIGATION IN UNITED STATES COURTS v (2008).
131. 83 See, e.g:,John M. Barcus, Money (It's What They Want): Quantifying Damage Awards for Foreign Tort Victims in United States Admiralty Courts, 21 REV. LITIG. 635, 658 (2002) (noting but not necessarily agreeing with the claim that there is a "tidal wave of foreign plaintiffs clogging up the dockets in our courts");
132. Douglas W. Dunham & Eric F. Gladbach, Forum Non Conveniens and Foreign Plaintiffs in the 1990s, 24 BROOK. J. INT'L L. 665, 665-66 (1999) (claiming that number of product-liability claims filed by foreign plaintiffs in U.S. courts increased in the 1990s);
133. Paul G. Cereghini &John D. Sear, Huddled Masses Yearning to Strike It Rich: Foreign Plaintiffs Shopping for Gold in American Courts, LAW.COM (July 17, 2009), http:/ /www.law.com/jsp/article.jsp?id=1202432312841
134. Global Forum Shopping supra note 15 (identifying "global forum shopping" as a "disturbing new trend in which foreign plaintiffs take advantage of the unusually expansive features of the American judicial system to file lawsuits in U.S. courts");
135. John Niblock, Obscure Statute Has Prompted Flood of Foreign Claims in U.S. Courts, ROLL CALL (Sept. 3, 2003), http://www.rollcall.com/fea-tures/ Global-Trade-2003/global-trade/2661-1.html (claiming that "U.S. plaintiffs' lawyers are crowding U.S. court dockets with product liability, environmental tort, unfair wage, and human rights claims on behalf of hundreds of thousands of foreign plaintiffs").
136. Silva, supra note 80, at 481.
137. Don Mayer & Kyle Sable, Yes! We Have No Bananas: Forum Non Conveniens and Corporate Evasion, 4 INT'L Bus. L. REV. 130, 131 (2004).
138. n fact, there is a general lack of empirical analysis of forum shopping and its consequences. See Juenger, supra note 13, at 553-54 (noting the absence of "in-depth study, empirical or otherwise, that focuses on [forum shopping]").
139. See supra Part IIA.
140. See Frederic M. Bloom, Jurisdiction's Noble Lie, 61 STAN. L. REV. 971, 985 (2009) (referring to the doctrine as "strange and understuthed");
141. Silberman, supra note 55, at 341 (noting that the "doctrine of forum non conveniens occupies a central role in international litigation").
142. For some of the best scholarship on the forum non conveniens doctrine, see generally Martin Davies, Time to Change the Federal Forum Non Conveniens Analysis, 77 TUL. L. REV. 309 (2002);
143. Elizabeth T. Lear, Congress, the Federal Courts, and Forum Non Conveniens: Friction on the Frontier of the Inherent Power, 91 IOWA L. REV. 1147 (2006);
144. David W. Robertson, Forum Non Conveniens in America and England: "A Rather Fantastic Fiction," 103 LAW Q. REV. 398 (1987);
145. Stein, supra note 27; and Weintraub, supra note 26.
146. Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 425 (2007).
147. See id. (holding that "a court need not resolve whether it has . . . subject-matter jurisdiction [ ] or personal jurisdiction" before dismissing on forum non conveniens grounds).
148. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254-55 (1981) (describing the adequate-alternative-forum requirement).
149. Id. at 254 n.22.
150. For example, "dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute." Id.
151. These "private interest" factors include: 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. Id. at 241 n.6
152. (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)).
153. These "public interest" factors include: the administrative difficulties flowing from court congestion; the "local interest in having localized controversies decided at home"; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty. Id.
154. (quoting Gulf Oil, 330 U.S. at 509).
155. Gulf Oil, 330 U.S. at 501;
156. Koster v. Lumbermens Mut Cas. Co., 330 U.S. 518 (1947). In fact, the forum non conveniens doctrine can be traced back even earlier to admiralty cases.
157. See generally Alexander M. Bickel, The Doctrine of Forum Non Conveniens as Applied in the Federal Courts in Matters of Admiralty: An Object Lesson in Uncontrolled Discretion, 35 CORNELL L.Q. 12 (1949) (discussing the admiralty origins of the doctrine). In domestic litigation in the federal court system, decisions once made under the forum non conveniens doctrine are now made under the federal transfer rules.
158. See 28 U.S.C. § 1404 (2006).
159. Robertson, supra note 78, at 370.
160. Robertson, supra note 89, at 403 (footnotes omitted).
161. See id. (noting that "[o]nly a handful of reported decisions resulted in forum non conveniens dismissals" during this period).
162. 454 us 235 (1981) (applying forum non conveniens doctrine to the suit of Scottish real parties in interest against U.S. defendants arising out of an air crash in Scotland); see VON MEHREN, supra note 19, at 319 (noting that "the Court [in Piper] approved the use of the [forum non conveniens] doctrine by federal courts in international cases").
163. In addition to Piper, there were two personal-jurisdiction decisions by the Supreme Court in the 1980s involving transnational litigation, both of which resulted in dismissal of a transnational suit filed in a U.S. court against a foreign defendant See Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102 (1987);
164. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984).
165. These prominent personaljurisdiction decisions may also have contributed to the signal that the U.S. federal courts would be less likely than before to grant court access for transnational suits. The Supreme Court's recent reinvigoration of the presumption against the extraterritorial application of legislation, and its use of that presumption to dismiss a transnational securities fraud suit, might also be considered part of this trend. Morrison v. Nat't Austl. Bank Ltd., 130 S. Ct 2869 (2010).
166. A decision by the Court in Goodyear Luxembourg Tires, S.A. v. Brown to reverse a North Carolina court's assertion of general jurisdiction in a transnational product liability case would contribute further to this trend. See Brown v. Meter, 695 S.E.2d 756 (N.C. 2010), cert, granted sub nom.
167. Goodyear Lux. Tires, SA v. Brown, 131 S. Ct 63 (2010) (No. 10-76).
168. Piper, 454 U.S. at 250. However, the Court clarified: We do not hold that the possibility of an unfavorable change in law should never be a relevant consideration in a forum non conveniens inquiry. Of course, if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in
169. law may be given substantial weight; the district court may conclude that dismissal would not be in the interests of justice.
170. Id. at 254. According to the Court, this will only be the case in "rare circumstances."
171. Id. at 254 n.22.
172. Id. at 250.
173. Id.
174. Id. at 252 (footnote omitted).
175. Id. at 255-56.
176. Id.
177. See Robertson, supra note 89, at 405. 108 Id. at 399.
178. See Robertson, supra note 78, at 370.
179. See supra Part I.
180. Elizabeth T. Lear, Federalism, Forum Shopping, and the Foreign Injury Paradox, 51 WM. & MARY L. REV. 87, 101 (2009);
181. see also David W. Robertson & Paula K. Speck, Access to State Courts in Transnational Personal Injury Cases: Forum Non Conveniens and Antisuit Injunctions, 68 TEX. L. REV. 937, 940 (1990) (claiming that the forum non conveniens doctrine "effectively closes the federal courts" to most transnational personal injury litigation and that "forum non conveniens has led to the dismissal of most federal-court actions brought on behalf of transnational personal injury victims").
182. Elizabeth T. Lear, National Interests, Foreign Injuries, and Federal Forum Non Conveniens, 41 U.C. DAVIS L. REV. 559, 561 (2007).
183. See id. at 568 n.49, 570 n.58 (listing forty-four cases upon which estimates were based);
184. Robertson & Speck, supra note 111, at 940 n.19 (citing only one case in support of the proposition that forum non conveniens has led to the dismissal of "most" transnational personal injury cases). Random sampling is a standard technique for reducing the risk of selection bias.
185. See Lee Epstein & Gary King, The Rules of Inference, 69 U. CHI. L. REV. 1, 110 (2002) (explaining how random sampling avoids selection bias).
186. I generated the sample in three steps: First, I searched the LexisNexis Academic database of U.S. district court decisions for the term "forum non conveniens" between 1990 and 2005. Second, I randomly sorted the results. Third, I analyzed each case in the randomly generated order, discarding those decisions that were not actual decisions by U.S. district court judges to either grant or deny a motion to dismiss in favor of a foreign court on forum non conveniens grounds. I continued this process until I had a sample of approximately 200 decisions (the exact number was 210).
187. Similarly, another recent study found that the dismissal rate in 769 forum non conveniens decisions published by the U.S. district courts between 1982 and 2006 was 52%.
188. Michael T. Lii, An Empirical Examination of the Adequate Alternative Forum in the Doctrine of Forum Non Conveniens, 8 RICH. J. GLOBAL L. & Bus. 513, 526 (2009). Two notes are in order regarding the interpretation of these results: First, although published forum non conveniens decisions are likely to have the strongest influence on plaintiffs' expectations of court access, estimates based on those decisions may not accurately describe unpublished forum non conveniens decisions. See supra Part I. Second, the overall dismissal rate approaches 50%-a tendency consistent with the so-called "50% hypothesis," according to which litigation win rates naturally converge on 50%.
189. See generally George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD. 1 (1984) (developing the 50% hypothesis).
190. But see Steven Shavell, Any Frequency of Plaintiff Victory at Trial Is Possible, 25 J. LEGAL STUD. 493, 499-501 (1996) (arguing that the 50% plaintiff win rate is not a "central tendency, either in theory or in fact"). Whether or not the 50% hypothesis explains why forum non conveniens dismissal rates approach 50%, the signal sent to plaintiffs would seem to remain the same: dismissals are frequent, not rare.
191. 549 U.S. 422 (2007);
192. see Donald Earl Childress III, When Erie Goes International, 105 Nw. U. L. REV. (forthcoming 2011) (finding that since 2007, the dismissal rate is 62%).
193. See Robertson, supra note 78, at 370.
194. See Robertson, supra note 89, at 403.
195. 9 See supra Part II.A.2.
196. Id.
197. 121 I generated the sample in three steps: First, I searched the LexisNexis U.S. District Court database for decisions between 1990 and 2005 in which a judge decided whether domestic law or foreign law should apply to a tort claim. I used the following search query: "([COUNTRY SEARCH TERM] w/3 law) w/200 ((choice or conflict or appli! or govern!) w/2 law) and tort!" I used the first element of the query to identify cases involving foreign law; I repeated the search for each country in the world, inserting appropriate country search terms into the query. I used the second element of the query to limit the search to choice-of-law decisions. The third element limited the search to tort cases. Second, I consolidated the results of these searches and randomly sorted them. Third, I analyzed each case in the randomly generated order, discarding those that did not actually decide whether domestic or foreign law should apply to a tort claim. I continued this process until I had a sample of approximately 200 decisions (the exact number was 213). See Whytock, supra note 30, at 755 nn. 187-88.
198. Then also discarded 85 decisions made in the context of a forum non conveniens analysis because these decisions are highly skewed in favor of foreign law. See id. at 756.
199. The result was a sample of 128 cases. Analysis of choiceof-law decisions in contract cases would likely be less illuminating because of the prevalence of choice-of-law clauses, which courts generally enforce. SCOLES ET AL., supra note 30, at 947.
200. See Whytock, supra note 30, at 765 tbl.2 (comparing pro-domestic-law and pro-foreign-law decision rates).
201. Due to potential selection effects, the pro-forum-law decision rates alone cannot conclusively demonstrate lack of bias. Therefore, in an earlier analysis I applied methods to take these effects into account See id. at 765-69 (describing these methods and the resulting findings confirming lack of pro-forum-law bias).
202. The notes regarding interpretation of the forum non conveniens estimates, supra note 115, apply equally to the choice-of-law estimates.
203. See Whytock, supra note 30, at 772.
204. 24 See id. at 768 tbl.3.
205. 25 See 28 U.S.C. § 1331 (2006) (federal-question jurisdiction);
206. id. § 1332 (diversity jurisdiction).
207. 26 Id. § 1332(a).
208. For alienage jurisdiction purposes, "an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled." Id.
209. Nevertheless, alienage litigation does not account for all transnational tort and contract claims. Plaintiffs may file such claims in federal courts on the basis of supplemental jurisdiction if these claims are so closely related to a federal claim that "they form part of the same case or controversy." Id. § 1367(a).
210. Moreover, aliens may file civil actions in federal courts under the Alien Tort Statute (ATS) for torts committed in violation of international law. Id. § 1350.
211. 28 See Kevin R. Johnson, Why Alienage Jurisdiction Historical Foundations and Modern Justifications for Federal Jurisdiction over Disputes Involving Noncitizens, 21 YALE J. INT'L L. 1, 6 (1996): By providing for alienage jurisdiction in the national courts, the Framers acted to avoid the potentially adverse foreign relations consequences caused by allowing state courts, fueled by a mixture of anti-British and anticreditor sentiment, to resolve disputes involving noncitizens. Instead, the Framers ensured that foreigners had access to a national court system perceived as less susceptible to the democratic impulse than the state courts.
212. 129 See id. ("Many, particularly the Federalists, hoped that alienage jurisdiction would attract much needed foreign capital to the fledgling nation.").
213. See, e.g., Erwin Chemerinsky & Larry Kramer, Defining the Role of the Federal Courts, 1990 BYU L. REV. 67, 92 (arguing that "cases involving foreign citizens should have a high priority in the jurisdiction of the federal courts" because of foreign-relations risks raised by such cases);
214. Johnson, supra note 128, at 48-49 (arguing that "other tilings being equal, access to a federal forum should increase the attractiveness of the United States to foreign business" and that, "[t]o the extent that the United States takes steps to promote the perception that foreign businesses are entided to procedural fairness in its court systems, other nations might be expected to reciprocate ... resultfing] in fairer treatment of this nation's businesses by foreign nations").
215. The AO is the administrative branch of the federal judiciary. For an overview of the AO data, see INTER-UNIVERSITY CONSORTIUM FOR POLITICAL AND SOCIAL RESEARCH, FEDERAL COURT CASES: INTEGRATED DATA BASE, 1970-2000, CIVIL TERMINATIONS, 1995, at 19-20 (2005) [hereinafter 1995 CODEBOOK], available at http://dx.doi.org/10.3886/ICPSR08429 (follow "Browse Documentation" hyperlink; after creating or entering username and password, follow "DS98: Civil Terminations, 1995" hyperlink and download codebook).
216. For information on the Civil Pending data, see INTER-UNIVERSITY CONSORTIUM FOR POLITICAL AND SOCIAL RESEARCH, FEDERAL COURT CASES: INTEGRATED DATA BASE, 1970-2000, CIVIL PENDING, 1995 (2005), available at http://dx.doi.org/10.3886/ICPSR08429 (follow "Browse Documentation" hyperlink; after creating or entering username and password, follow "DS99: Civil Pending, 1995" hyperlink and download codebook). As one group of scholars explain: [T] he ICPSR [Inter-university Consortium for Political and Social Research] disseminates a series of data sets gathered and assembled by the Administrative Office of the U.S. Courts (AO) and the Federal Judicial Center (FJC). The data in these sets originate from each of the federal district courts ... in the country. For every case that is filed and for every case that terminates in one of these courts, the court clerk sends the AO a form containing information about the case. The AO compiles this information each year into two data sets, one for cases terminated during that year and the other for cases still pending at the end of that year. The AO then passes these sets on to the FJC for further processing, and the FJC passes the final product to the ICPSR for dissemination on its Web site.
217. John R.B. Palmer et al., Why Are So Many People Challenging Board of Immigration Appeals Decisions in Federal Court An Empirical Analysis of the Recent Surge in Petitions for Review, 20 GEO. IMMIGR. L.J. 1, 33 (2005) (footnotes omitted). To perform my analysis, I downloaded the data for the years 1987 dirough 2008 from the ICPSR website and consolidated them into a single data set.
218. See INTER-UNIVERSITY CONSORTIUM FOR POLITICAL AND SOCIAL RESEARCH, FEDERAL COURT CASES: INTEGRATED DATABASE, 2008, CIVIL TERMINATIONS DATA, 2008, at 5, 15-16 (2010) [hereinafter 2008 CIVIL TERMINATIONS CODEBOOK], available at http://dx.doi.org/10.3886/ICPSR25002 (follow "Browse Documentation" hyperlink; after creating or entering username and password, download "Codebook" under "DS2: Civil Terminations Data, 2008" folder) ("The Civil Cases Terminations File contains one record for every civil case terminated in the Federal Court System in 2008.");
219. Theodore Eisenberg & Margo Schlanger, The Reliability of the Administrative Office of the U.S. Courts Database: An Initial Empirical Analysis, 78 NOTRE DAME L. REV. 1455, 1462-63 (2003) ("Unlike any other data set covering the federal courts, [the AO data] purports to cover every case filed. And it seems more than likely that this is indeed its coverage."). This distinguishes the AO data from data available from online databases such as Wesdaw and Lexis, which only include decisions that are published in official reporters or otherwise made available by judges for electronic publication.
220. From 1987 to 1991, the statistical year ends on June 30. For subsequent years, the statistical year ends on September 30. See 1995 CODEBOOK, supra note 131, at 12.
221. 34 See 2008 CIVIL TERMINATIONS CODEBOOK, supra note 132, at 12 (describing the JURIS variable).
222. See Kevin M. Clermont & Theodore Eisenberg, Xenophilia or Xenophobia in U.S. Courts Before and After 9/11, 4 J. EMPIRICAL LEGAL STUD. 441, 452 (2007) (noting that "[s]ince fiscal year 1986, the [data] ... specifies whether the two principal parties in diversity and alienage cases were American or foreign"). In the AO data set, the citizenship variable is named residenc The variable is coded as a two-digit number. The first digit indicates the citizenship of the principal plaintiff, and the second digit indicates the citizenship of the principal defendant. The following values are used: 1 = Citizen of this State; 2 = Citizen of another State; 3 = Citizen or Subject of a foreign country; 4 = Incorporated or principal place of business in this State; 5 = Incorporated or principal place of business in another State; and 6 = Foreign Nation.
223. 2008 CIVIL TERMINATIONS CODEBOOK, supra note 132, at 15-16.
224. I counted a case as an alienage case only if the plaintiff was a citizen of a U.S. state and the defendant was a foreign citizen or if the plaintiff was a foreign citizen and the defendant was a citizen of a U.S. state. Thus, I counted a case as an alienage case only if the citizenship variable equals 13, 23, 43, 53, 31, 32, 34, or 35. I did not count a case as an alienage case if a foreign nation was a party or if the plaintiff and the defendant were both foreign citizens because these party configurations are not included in alienage litigation. See 28 U.S.C. § 1332(a) (2) (2006) (covering only controversies between "citizens of a [U.S.] State and citizens or subjects of a foreign state"); cf. Clermont & Eisenberg, supra note 135, at 452 n.39 (taking the same approach). This means that my count of alienage cases does not include suits under 28 U.S.C. § 1332(a) (3) (suits between "citizens of different [U.S.] States and in which citizens or subjects of a foreign state are additional parties") or suits under 28 U.S.C. § 1332(a)(4) (suits between "a foreign state ... as plaintiff and citizens of a [U.S.] State or of different [U.S.] States"). See 28 U.S.C. § 1332(a)(3), (a)(4).
225. 37 See Eisenberg & Schlanger, supra note 132, at 1458 ("Like many large data sets, the AO data are not completely accurate." (footnote omitted)). For example, when new coding procedures are introduced, complete and proper implementation of those procedures might not be immediate. I am not aware of any implementation problems regarding the foreign-citizen coding introduced in fiscal year 1986. Out of an abundance of caution, however, my analysis begins with 1987 to account for the possibility of an implementation lag. Insofar as such a lag may have persisted into 1987 or even 1988, data for those years may not be as reliable as for subsequent years.
226. 38 Id. at 1464. However, there is evidence suggesting reliability problems with the AO's bankruptcy-court data, as well as with the AO data on class actions, patent cases, and amounts awarded following trials. Id. at 1464 & n.46. My analysis does not use these types of data.
227. 39 See id. at 1462-63 ("[0]ne strengdi of the AO data set is its completeness. Unlike any other data set covering the federal courts, it purports to cover every case filed. And it seems more than likely that this is indeed its coverage. Cases get entered into the database on filing, and there is a built-in check because they get entered again, on termination.").
228. See id. at 1463-64 ("[F]or researchers seeking to identify all federal district court cases in a certain subject matter category, it is clear that the AO database is the easiest, and perhaps the most reliable, mediod of doing so, provided that the subject matter of interest matches one or a group of the AO case categories."). The annual filings figures are extracted from the Civil Terminations data sets. As explained below, they likely underestimate the total number of cases filed each year, especially in the most recent years.
229. See infra notes 146-47 and accompanying text. Therefore, the raw estimates should be treated with caution.
230. 42 See Paul Krugman, Once and Again, N.Y. TIMES, Jan. 2, 2000, at WK9 ("Whatever else they may have been, the 90's were the decade of globalization.");
231. Barry Eichengreen, One Economy, Ready or Not: Thomas Friedman's Jaunt Through Globalization, FOREIGN AFFAIRS (May-June 1999) (suggesting that it is now "obvious that historians will look back on the 1990s as the decade of globalization").
232. My analysis of the AO's nature-of-suit codes indicates that this uptick consisted principally of a cluster of asbestos product-liability claims filed by foreign plaintiffs in 2000. The spike appears to reflect an increase in asbestos product-liability claims. See supra note 143.
233. Barcus, supra note 83, at 658.
234. See supra text accompanying note 127 (linking alienage litigation to transnational tort and contract claims).
235. For example, cases filed in 2004 or in 2005 that were still pending in 2005 would not be counted in the Civil Terminations data sets as of 2005.
236. 48 The earlier the year, the less significant the lag, and the more accurate the estimate. For example, my analysis indicates that the filing figures extracted from the Civil Terminations data sets underestimate actual filings by approximately 6.2% in 2005, 2.4% in 2004, and between 0.5% and 1.6% in earlier years. Assuming that the extent of lag on average is the same for alienage cases and civil cases in general, the lag should not affect the percentage calculations in Table 3. Because my analysis indicates that by 2006 the Civil Terminations data sets substantially underestimate actual filings (by more than 15.6% for 2006), I do not report filings data based on the 2006, 2007, or 2008 Civil Terminations data sets.
237. I extracted the pending-cases figures from the Civil Pending data sets, which are available for statistical years 1987-89, 1991, 1994-95, 1997, and 2000-2007, and calendar year 2008.
238. See Clermont & Eisenberg, supra note 135, at 462 tbl.4 (noting diat "alienage terminations plummeted" between 1986 and 2005).
239. Clermont and Eisenberg also discovered a decline in the number of alienage judgments. See id. at 461 tbl.S (noting the "dramatically decreasing number of... alienage judgments over the last two decades").
240. Id. at 462 tbl.4. My own analysis of the most recent version of the Civil Terminations data indicates that a more accurate estimate of alienage terminations in 2005 is 1,868 and that the number of alienage terminations in 2006 and 2007 was approximately 1,929 and 1,978, respectively.
241. see also Dubinsky, supra note 81, at 366 n.10 ("Surprisingly, little has been done by the Federal Judicial Center, the National Center for State Courts, or the Judicial Conference of the United States to provide Congress or the public with hard data on the number and kind of suits in the system with a transnational component....").
242. 28 U.S.C. § 1332(a)(1) (2006) (domestic diversity jurisdiction); id. § 1332(a)(3) (domestic diversity jurisdiction with foreign citizens as additional parties).
243. Id. § 1331. Thus, the alienage data probably does not include most transnational regulatory litigation in U.S. courts.
244. See generally Hannah L. Buxbaum, Transnational Regulatory Litigation, 46 VA. J. INT'L L. 251 (2006) (providing seminal analysis of transnational regulatory litigation).
245. 28 U.S.C. § 1333.
246. id. § 1334.
247. 57 See id. § 1350 ("The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."). Although lawsuits brought under the ATS have attracted considerable attention and appear to have increased since the 1980s, existing studies suggest that they remain relatively uncommon.
248. See, e.g., Jeffrey Davis, Justice Without Borders: Human Rights Cases in U.S. Courts, 28 LAW & POL'Y 60, 73-74 (2006) (finding that federal courts of appeals decided fourteen ATS cases between 2000 and 2004 but decided only thirty-one cases between 1976 and 1999 and that federal district courts have decided thirty-six ATS cases between 2000 and 2004 but only forty before then);
249. Bedi Stephens, Judicial Deference and the Unreasonable Views of the Bush Administration, 33 BROOK. J. INT'L L. 773, 810-11 (2008) (noting that since 1980, approximately 185 cases have been litigated under the ATS, about 105 of which have been filed since 2004, and about 123 of which were dismissed).
250. See 28 U.S.C. § 1330 (jurisdiction over civil suits against foreign sovereigns if there is no sovereign immunity).
251. Nor does the AO data identify cases over which jurisdiction exists because the dispute is between a foreign state as a plaintiff and a citizen of a U.S. state, id. § 1332(a) (4),
252. or where the suit is against a foreign consul or diplomat, id. § 1351.
253. 59 Cf. Clermont & Eisenberg, supra note 135, at 461 n.50 (noting that the "drop in terminations involving foreign litigants could extend well beyond alienage cases" and that AO data may therefore "be hiding a drop in foreigners litigating on other jurisdictional bases").
254. Christopher A Whytock, Litigation, Arbitration, and the Transnational Shadow of the Law, 18 DUKE J. COMP. & INT'L L. 449, 461 (2008) ("For now, it is difficult to do more than speculate about whether transnational litigation in general is characterized by the same trends that characterize alienage cases in the U.S. federal district courts.").
255. See supra Part III. A.1.
256. See, e.g, Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 425 (2007) (noting that dismissal on forum non conveniens grounds is for cases in which a "court abroad is the more appropriate and convenient forum for adjudicating the controversy").
257. 63 See, e.g., Lear, supra note 112, at 602-03 ("Federal forum non conveniens decisions appear to depend more on the individual biases of district court judges than any identifiable legal standard.");
258. Stein, supra note 27, at 785 (describing "crazy quilt of ad hoc, capricious, and inconsistent [forum non conveniens] decisions").
259. See Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REV. 12, 15 (1910) (distinguishing between "law in the books" and "law in action").
260. For an empirical analysis of judicial application of the doctrine's adequate alternative-forum requirement, see Lii, supra note 115.
261. See, e.g., Sinochem, 549 U.S. at 425.
262. 66 See, e.g., BELL, supra note 5, at 337 (arguing that appropriate forum is "that forum with which the dispute has the closest and most real connection");
263. ROBERT A LEFLAR ET AL., AMERICAN CONFLICTS LAW 152-53 (Michie Co. 4th ed. 1986) (discussing that under forum non conveniens doctrine, courts "refuse to hear actions in which the cause of action sued on ... has litlle or no connection with the state in which suit is brought and can more fairly be tried elsewhere");
264. Bassett, supra note 25, at 379-80 (describing the most convenient forum as die forum with the "most obvious connection to the litigation");
265. Stewart E. Sterk, The Marginal Relevance of Choice of Law Theory, 142 U. PA. L. REV. 949, 1013-14 (1994) (describing an inappropriate forum as a "forum with little or no connection to the dispute at hand");
266. Bies, supra note 76, at 517 (arguing that forum choice is legitimate when there is "some clear connection of the cause of action to the forum").
267. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 84 cmt. f (1971) (stating that in the "great majority" of cases, three forums will be "appropriate": the state where occurrence took place; the state of the defendant's domicile; or the state of the plaintiffs domicile);
268. Silberman, supra note 16, at 527 (referring to "the more relevant jurisdiction" as "the place of residence, injury, or sale");
269. Silberman, supra note 55, at 336 (referring to "most egregious" cases of transnational forum shopping as those in which "neither party to the dispute is a resident of the United States and the dispute is centered abroad").
270. 68 See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947). For example, ease of access to proof and witnesses-which is among the doctrine's private interest factors-depends on the location of the parties and other relevant sources of evidence, which in turn will often overlap with the parties' countries of citizenship and with the place of the activity giving rise to the litigation. In addition, one of the public interest factors is whether the underlying dispute is a "localized controversfy].
271. " See id. at 509. The Court does not define the meaning of the phrase, but the phrase implies that one of the parties or some part of the underlying activity is local.
272. 69 I coded these variables based on the published opinions in the data set. This "connecting factor" approach is widely accepted as a method of gauging appropriateness. See supra notes 165-67 and accompanying text.
273. However, it is not necessarily the best or only possible approach. Indeed, in one of its seminal forum non conveniens decisions, the U.S. Supreme Court avoided specifying particular connecting factors, explaining that it was "[w]ise[ ]" to avoid any attempt "to catalogue the circumstances which will justify or require either grant or denial" of motions to dismiss on forum non conveniens grounds and preferring case-by-case analysis based on the court's discretion. Gulf Oil, 330 U.S. at 508. The Court instead articulated the private interest and public interest factors discussed above. Id. at 508-09. As a practical matter of empirical methodology, it would be difficult to measure these factors and test their distinct influences on forum non conveniens decision making. However, the citizenship and territoriality variables used in my analysis, being correlated with those factors, should be reasonable proxies.
274. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981).
275. 71 Robertson, supra note 89, at 417;
276. see also Henry J. Friendly, Indiscretion About Discretion, 31 EMORY L.J. 747, 750 n.10 (1982) ("[T]he explosion of litigation has created a strong incentive for district courts to [use the forum non conveniens doctrine] to shunt burdensome business elsewhere.").
277. Federal Court Management Statistics 2008: U.S. District Court-Judicial Caseload Profile, U.S. COURTS, http://www.uscourts.gov/viewer.aspx?doc=/cgi-bin/ cmsd2008.pl (last visited Nov. 9, 2010) (select "All District Courts" from drop-down menu, then follow "Generate" hyperlink). I used the "weighted filings" per judgeship figure. I used a one-year lag because, due to the typical duration of cases, the prior year's filings are likely to be a more accurate measure of the district's current workload.
278. Anne-Marie Burley, Law Among Liberal States: Liberal Internationalism and the Act of Stau Doctrine, 92 COLUM. L. REV. 1907, 1917 (1992). Anne-Marie Burley (later Anne-Marie Slaughter Burley and now Anne-Marie Slaughter) specifically claims that the theory applies to forum non conveniens decision making.
279. Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 AM. J. INT'L L. 205, 232 (1993).
280. 74 Anne-Marie Slaughter, A Typology of Transjudicial Communication, 29 U. RICH. L. REV. 99, 105 (1994);
281. see also id. at 131 (arguing that this tendency is "likely to be stronger among the courts of liberal democracies").
282. See generally José E. Alvarez, Do Liberal States Behave Better A Critique of Slaughter's Liberal Theory, 12 EUR. J. INT'L L. 183, 217 (2001) (arguing that regime type does not determine interactions by U.S. courts with other courts).
283. 76 The Freedom in the World survey is a leading annual survey on national levels of democracy. For information about the survey, see Freedom in the World, FREEDOM HOUSE, http://www.freedomhouse.org/template.cfm?page=15 (last visited Nov. 9, 2010).
284. 77 Although these ratings generally are stable over the time period covered by my data set, I use a one-year lag based on the theory that a judge is unlikely to become immediately aware of changes in a foreign country's politics. For purposes of liberal international-law theory, Slaughter defines "liberal" states as those "with juridical equality, constitutional protections of individual rights, representative republican governments, and market economies based on private property rights." Burley, supra note 173, at 1909. The Freedom House rankings capture these characteristics by explicidy accounting for equal treatment under the law, protection of individual rights (including freedoms of assembly, open public discussion, and defendants' rights), representative government (including election of representatives through free and fair elections and other political rights), and privateproperty rights. See Methodology, FREEDOM HOUSE, http://www.freedomhouse.org/tem-plate.cfm?page=351&ana-page=363&year= 2010 (last visited Nov. 9, 2010).
285. The other leading measure, the POUTY IV PROJECT, http://www. systemicpeace.org/polity/polity4.htm (last visited Nov. 9, 2010), captures the concept of representative government well, but it only indirecdy captures the other elements of Burley's definition. Therefore, for testing Slaughter's liberal theory of international law, the Freedom House measure appears more appropriate.
286. 78 Lear, supra note 112, at 602-03.
287. 79 According to two of the theory's leading proponents, "[t]his model holds that the Supreme Court decides disputes in light of the facts of the case vis-à-vis the ideological attitudes and values of the justices." JEFFREY A. SEGAL &: HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 86 (2002).
288. As Segal and Spaeth put it, "Rehnquist votes the way he does because he is extremely conservative; Marshall voted the way he did because he was extremely liberal." Id.
289. 80 See George D. Brown, The Ideologies of Forum Shopping-Why Doesn't a Conservative Court Protect Defendants, 71 N.C. L. REV. 649, 651 (1993). Brown argues that "[a]nything other than a broad condemnation" of forum shopping from conservative judges would be surprising because ]orum-shopping threatens such conservative values as the desire to avoid the proliferation of lawsuits, a distrust of manipulation of the system to achieve substantive ends (at least by plaintiffs), and a general pro-defendant tilt. The principal victims of state-state forum-shopping are interstate corporate entities, an interest group that [conservative judges] might be expected to favor.
290. Id. (footnote omitted).
291. This is a common measure of judges' ideological attitudes. See Tracey E. George &: Lee Epstein, On the Nature of Supreme Court Decision Making, 86 AM. POL. SCI. REV. 323, 328 (1992) (using the party of the nominating president as a proxy for ideological attitudes);
292. see also Tracey E. George, Developing a Positive Theory of Decisionmaking on U.S. Courts of Appeals, 58 OHIO ST. L.J. 1635, 1650-55 (1998) (defending this approach and introducing alternatives). However, tests using the party of the nominating president as a proxy for a judge's ideological attitudes may underestimate the impact of those attitudes.
293. Seejoshua B. Fischman & David S. Law, What Is Judicial Ideology, and How Should We Measure It, 29 WASH. U. J.L. & POL'Y 133, 170-71 (2009).
294. Therefore, such tests are "best interpreted as providing only a lower bound on ideology." Id. at 171.
295. Obtained the data on nominating presidents from the Biographical Directory of Federal Judges, FEDERAL JUDICIAL CENTER, http://www.fjc.gov/ history/home.nsf/page/judges.html (last visited Nov. 9, 2010).
296. 82 See, e.g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 516 (1947) (Black, J., dissenting): The broad and indefinite discretion left [by the forum non conveniens doctrine] to federal courts to decide the question of convenience from the welter of factors which are relevant to such a judgment, will inevitably produce a complex of close and indistinguishable decisions from which accurate prediction of the proper forum will become difficult, if not impossible.
297. See also Robertson & Speck, supra note 111, at 971, 975 (arguing that the forum non conveniens doctrine "is vague and amorphous, yielding little predictability and virtually guaranteeing against clear explanation of the outcomes achieved under it");
298. Stein, supra note 27, at 785 (describing "crazy quilt of ad hoc, capricious, and inconsistent [forum non conveniens] decisions").
299. 83 See Am. Dredging Co. v. Miller, 510 U.S. 443, 455 (1994) (arguing that because of its unpredictability, "forum non conveniens cannot really be relied upon ... in deciding ... where to sue");
300. Gulf Oil, 330 U.S. at 516 (Black, J., dissenting) (arguing that due to its unpredictability, the forum non conveniens doctrine will "clutter the very threshold of the federal courts with a preliminary trial of fact concerning the relative convenience of forums");
301. VON MEHREN, supra note 19, at 324 (noting criticism that "the doctrine compromises legal security and predictability and breeds litigation").
302. 84 Here, the dependent variable is Decision, which either has the value of Yes (1) for decisions to grant a motion to dismiss on forum non conveniens grounds or No (0) for decisions to deny such motions. For further information on logit analysis, see generally DAVID W. HOSMER & STANLEY LEMESHOW, APPLIED LOGISTIC REGRESSION (2d ed. 2000).
303. Used the Clarify software program in Stata to simulate a change in the expected value of the dependent variable caused by increasing each dichotomous explanatory variable from 0 to 1 (and Caseload, a continuous variable, from its 25th to 75th percentile), setting each of the other variables at its mode (for dichotomous variables) or mean (for Caseload). MICHAEL TOMZ ET AL., CLARIFY: SOFTWARE FOR INTERPRETING AND PRESENTING STATISTICAL RESULTS (2001).
304. As noted above, my sample consists only of published decisions and therefore might not be representative of unpublished decisions. However, because I am interested in the impact of domestic court decisions on plaintiffs' decisions to forum shop into U.S. courts, published decisions are the most relevant. See supra Part I. Moreover, any unrepresentativeness that may result from relying only on published decisions does not create sample-selection bias in causal inferences unless two conditions are met (1) a criterion used to select the sample upon which the inferences are based (e.g., whether a decision was published) is a cause of the dependent variable (i.e., whether the judge granted a motion to dismiss) and (2) that criterion is correlated with an explanatory variable of interest (e.g., the place of conduct). My analysis suggests that there is not a substantial risk that these conditions are met, with the possible exception of Caseload. See Christopher Alexander Whytock, Domestic Courts and Global Governance: The Politics of Private International Law 147-48 (2007) (unpublished Ph.D. dissertation, Duke University) (on file with Duke University Library) (discussing potential determinants of publication and concluding diat most possible determinants of publication are unlikely to have a causal effect on forum non conveniens decision making and that there are not obvious reasons to expect them to be correlated with my explanatory variables).
305. 86 Specifically, with the Judge Nominated by Republican variable included, the probability of dismissal is an estimated 26.5% [7.9, 45.1] higher when the plaintiffs are all foreign, 20.3% [1.9, 38.6] higher when the conduct occurred outside U.S. territory, and 27.5% [8.4, 47.8] when the injury occurred outside U.S. territory. The impact of the Foreign Defendants variable is not statistically significant at traditionally accepted levels. See generally HOSMER & LEMESHOW, supra note 184, at 36-43 (discussing methods for testing statistical significance of models and estimating confidence intervals, using a 95% confidence interval as a baseline).
306. 87 No models showed 95% confidence that the effect of the Foreign Defendants variable is either positive or negative.
307. When the variable Liberal Democracy is replaced with a variable equal to 1 if the Polity IV democracy rating is greater than or equal to 5 on a -10 to +10 scale, the effect is statistically significant at a 90% (but not a 95%) level of confidence.
308. The impact of the Liberal Democracy variable may reflect nota concern about regime type per se but rather a concern with the perceived adequacy of the proposed alternative forum. Judges may intuitively be more comfortable dismissing cases in favor of countries in which there likely would be a fair judicial process. To that extent, the Liberal Democracy variable might indeed be considered relevant to the determination of whether the foreign court would be an appropriate alternative. However, in the twenty-two cases in the sample in which a judge concluded that the alternative forum requirement was not satisfied, the foreign country was a liberal democracy in ten cases and not a liberal democracy in twelve cases, suggesting that judges do not use regime type as a proxy for forum adequacy. But see Lii, supra note 115, at 537-38 (finding that "district courts are less apt to find an adequate forum in countries with fewer political rights and fewer civil liberties").
309. As noted above, however, my use of the party of the nominating president as a measure of the judge's ideological attitude may underestimate the impact of ideology. See supra note 181.
310. This is the sort of "situs" tendency that Elizabeth Lear has argued largely explains forum non conveniens decision making in general. See Lear, supra note 111, at 103 (referring to "the strength of the federal courts' situs presumption" in forum non conveniens decision making).
311. 92 See supra note 180 and accompanying text.
312. See RUSSELL J. WEINTRAUB, COMMENTARY ON THE CONFLICT OF LAWS 281-82 (5th ed. 2006) (noting approximately twenty-five such treaties and arguing that discrimination in forum non conveniens decision making could violate them).
313. See generally 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 (1990) (analyzing the relationship between the forum non conveniens doctrine and equal-access provisions).
314. 94 WEINTRAUB, supra note 193.
315. See supra text accompanying notes 100-09.
316. 454 U.S. 235, 255-56 (1981).
317. 97 See id.: When the home forum has been chosen, it is reasonable to assume that this choice is convenient When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference.
318. See GARY B. BORN & PETER B. RUTLEDGE, INTERNATIONAL CIVIL LITIGATION IN UNITED STATES COURTS 380 (4th ed. 2007) (discussing cases holding that courts must treat foreign plaintiffs as U.S. citizens for forum non conveniens purposes if they are citizens of signatories of treaties with equal-access provisions).
319. Cf. Paula K. Speck, Forum Non Conveniens and Choice of Law in Admiralty: Time for an Overhaul, 18 J. MAR. L. & COM. 185, 194 (1987): [A] court should not grant an FNC dismissal to a defendant who has shown only slight inconvenience, merely because the opposite party is not a U.S. citizen or resident. Such a doctrine would place foreigners in an unfavorable position qua foreigners, and they should be able to successfully counter it by appealing to a treaty designed to protect them in such situations.
320. The estimated effect is 24.1% [6.5, 42.2] in full Model 1 and 26.5% [7.9, 45.1] in Model 2.
321. As Table 6 shows, the Foreign Defendants variable is not statistically significant.
322. This "correctly classified" figure indicates the proportion of outcomes that the model correcdy classified using a 0.5 probability cutoff to translate predicted probabilities into dichotomous predictions. See LAWRENCE C. HAMILTON, STATISTICS WITH STATA: UPDATED FOR VERSION 9, at 270-71 (2006) (explaining the correctly classified statistic). Thus, it indicates the proportion of outcomes for which the model estimated at least a 0.5 probability of a dismissal and in which the court in fact granted a dismissal.
323. When a dependent variable has only two possible outcomes (as is the case here), one can correcdy predict at least 50% of outcomes without any explanatory variables by always guessing the outcome that is most frequent See]. SCOTT LONG & JEREMY FREESE, REGRESSION MODELS FOR CATEGORICAL DEPENDENT VARIABLES USING STATA 111 (2d ed. 2006). Adjusted count R-squared uses this guessing strategy as a baseline to measure the improvement in predictive power provided by a statistical model. More precisely, adjusted count R-squared is the proportion of correct predictions beyond the number that would be correcdy predicted simply by choosing the outcome with the largest percentage of observed cases, using a 0.5 probability cutoff.
324. Id. at 111-12.
325. The ROC curve plots 1 minus specificity (the false positive rate) on the x-axis and sensitivity (the true positive rate) on the y-axis for each possible probability cutoff. See Douglas G. Airman & J. Martin Bland, Diagnostic Tests 3: Receiver Operating Characteristic Plots, 309 BRIT. MED. J. 188, 188 (1994) (explaining the ROC curve in the medical-diagnostic context).
326. The area under the ROC curve is equal to the probability that a random decision to grant a forum non conveniens motion has a higher value of the dependent variable than a random decision to deny a forum non conveniens motion. See id. A larger area under the curve indicates a more discriminating model. See id. One rule of thumb is that an area of 0.7 to 0.8 is acceptable discrimination, 0.8 to 0.9 is excellent discrimination, and greater than 0.9 is outstanding discrimination. HOSMER & LEMESHOW, supra note 184, at 162.
327. To be clear, I am not suggesting that connections such as territoriality and citizenship are the only, or even the best, measures of appropriateness. To the contrary, there are almost surely more sophisticated and refined measures. However, these other measures would be difficult to test empirically and for judges to apply.
328. Of course, while even more predictability might be desirable, it is unclear whether this could be accomplished without significant tradeoffs in terms of fairness in individual cases. Cf. Erwin Chemerinsky, Assessing Minimum Contacts: A Reply to Professors Cameron and Johnson, 28 U.C. DAVIS L. REV. 863, 866-67 (1995) (arguing that in the context of personal jurisdiction, uncertainty is "inevitable and desirable" because personal jurisdiction is ultimately about fairness and fairness cannot be reduced to "a formula or a clear rule").
329. Cf. Lii, supra note 164, at 542 (arguing that "even though the definition of an adequate forum does not explicidy require it, there is evidence that district courts are less likely to find foreign forums adequate in countries with ineffective and corrupt governments and countries that lack the rule of law").
330. Smith Kline & French Labs. Ltd. v. Bloch, [1983] 1 W.L.R. 730, 733 (C.A. 1982).
331. See supra Part II.
332. See supra notes 1-3 and accompanying text.
333. See supra notes 76-85 and accompanying text.
334. See supra Part II.B.
335. Id.
336. From this perspective, the role of domestic courts in shaping patterns of transnational forum shopping would be an example of transnational judicial governance. See Whytock, supra note 21, at 100-01 (describing the impact of judicial allocation of adjudicative audiority on transnational forum shopping). In addition to the changes in the American forum-shopping system described above, the amount-in-controversy requirement for diversity jurisdiction increased from $10,000 to $50,000 in 1988 and to $75,000 in 1996. FRIEDENTHAL ET AL., supra note 48, at 45. However, if this were a substantial cause of the decline in alienage filings, one would expect to see a similar drop in domestic diversity cases, which did not occur. See supra Figure 3. Second, in 1988, permanent-resident aliens were classified as U.S. state citizens for diversity purposes, arguably reducing the number of transnational suits covered by alienage jurisdiction. Cf. Clermont & Eisenberg, supra note 135, at 461 (noting this possibility). However, this possibility is difficult to assess without data on the proportion of transnational suits brought by permanent-resident aliens based on alienage jurisdiction prior to this change.
337. 15 See, e.g., Robertson & Speck, supra note 111, at 940 (arguing that more transnational personal-injury claims are being filed in state courts precisely because of federal courts' aggressive use of the forum non conveniens doctrine).
338. But see 28 U.S.C. §1441(b) (2006) (allowing removal in non-federal-question cases "only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought");
339. KOH, supra note 82, at 15 (arguing that transnational commercial litigation is concentrated in the U.S. federal courts rather than U.S. state courts);
340. Solimine, supra note 29, at 37 (providing empirical evidence that "appears to confirm the assumption that foreign defendants see federal courts as more congenial [than state courts], and when able will remove the case to that forum"). Unfortunately, there is no existing data on transnational litigation rates in U.S. state courts that permits empirical testing of this explanation.
341. See Christopher A Whytock, The Arbitration-Litigation Relationship in Transnational Dispute Resolution: Empirical Insights from the U.S. Federal Courts, 2 WORLD ARB. & MEDIATION REV. 39, 48 (2008) (empirically documenting an upward trend in transnational arbitration but concluding that this does not substantially account for the decline in alienage litigation);
342. see also KOH, supra note 82, at 15 (arguing that the "vast bulk of the international commercial dispute resolution in the United States has tended to transpire not through arbitration, but through lawsuits in the national courts").
343. See generally Linda Lipsen, The Evolution of Products Liability as a Federal Policy Issue, in TORT LAW AND THE PUBUC INTEREST 247 (Peter H. Schuck ed., 1991) (surveying tort-reform efforts);
344. Glenn Blackmon & Richard Zeckhauser, Slate Tort Reform Legislation: Assessing Our Control of Risks, in TORT LAW AND THE PUBUC INTEREST, supra, at 272.
345. But see Weintraub, supra note 43, at 163 ("[A]lthough 'tort reform' is spreading in the United States, American law is nevertheless more likely than foreign law to create liability, permit recov-ery for more elements of injury, and award punitive damages. Therefore, choice of United States law rather than foreign law is likely to favor a foreign plaintiff." (footnote omitted)).
346. See Mark A Behrens et al., Global Litigation Trends, 17 MICH. ST. J. INT'L L. 165, 193-94 (2009) (noting the growing list of countries recognizing multiclaimant litigation and gradually moving away from prohibitions on contingent fees and punitive damages);
347. R. Daniel Kelemen & Eric C. Sibbitt, The Globalization of American Law, 58 INT'L ORG. 103, 131 (2004) (arguing that American legal style is spreading globally);
348. Eugene Gulland, All the World's a Forum, NAT'L L.J., Feb. 11, 2002, at B13 (arguing that "[r]ecent court decisions ... suggest a more aggressive tendency to prefer non-U.S. forums and apply non-U.S. law to disputes involving U.S. companies").
349. 'See Utpal Bhattacharya et al., The Home Court Advantage in International Corporate Litigation, 50 J.L. & ECON. 625, 629 (2007) (concluding that foreign firms are disadvantaged in U.S. courts).
350. But see Clermont & Eisenberg, supra note 135, at 464 (finding no support for the existence of antiforeigner bias in U.S. courts). However, regardless of whether there is in fact an antiforeigner bias, the perception of antiforeigner bias could affect transnational litigation rates in U.S. courts.
351. See Austen L. Parrish, Sovereignty, Not Due Process: Personal Jurisdiction over Nonresident Alien Defendants, 41 WAKE FOREST L. REV. 1, 45 (2006) ("Foreign defendants believe that U.S. courts favor U.S. litigants.").
352. See Dorward, supra note 16, at 142 (arguing that "tolerance of international forum shopping creates inefficiencies and conflicts with basic notions of comity and respect for foreign sovereignty");
353. Parrish, supra note 219, at 47-48 (noting potential foreign-relations consequences of transnational litigation in U.S. courts);
354. Sykes, supra note 10, at 340 (arguing that transnational forum shopping into U.S. courts may cause global and national economic welfare to decline);
355. cf. Silberman, supra note 16, at 507 (noting the U.S. Solicitor General's argument in Helicopteros Nacionales de Colombia v. Hall that assertion of personal jurisdiction over a foreign corporation in U.S. court based on the corporation's transactions with a U.S. corporation in the United States would have "'significant potential for discouraging foreign forums from purchasing American products' " and " 'would thwart positive efforts of Congress and the Executive Branch to make American firms and products more competitive internationally' "
356. (quoting Brief for the United States as Amicus Curiae at 9-10, 11-12, Helicopteros Nacionales, 466 U.S. 408 (1984) (No. 82-1127)).
357. See, e.g., Sykes, supra note 10, at 340 (arguing "for limiting foreign tort plaintiffs to the law and forum of the jurisdiction in which their harm arose" in appropriate cases);
358. Global Forum Shopping, supra note 15 (advocating reforms to reduce global forum shopping into U.S. courts);
359. see also Dorward, supra note 16, at 168 (arguing for continued evolution of the forum non conveniens doctrine to respond to problems posed by international forum shopping);
360. Weintraub, supra note 43, at 161 (arguing for elimination of "choice-of-law rules that select American liability law");
361. cf. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 251-52 (1981) (holding that an unfavorable change in law does not bar forum non conveniens dismissal and justifying that holding with the assertion that "flow of litigation into the United States would [otherwise] increase and further congest already crowded courts").
362. See Brief for Petitioners, supra note 59, at 9 (arguing that affirming North Carolina's assertion of general jurisdiction would be an "invitation to rampant forum shopping");
363. Brief of the Org. for Int'l Inv. & Ass'n of Int'l Auto. Mfrs. Inc. as Amici Curiae in Support of Petitioner, supra note 59, at 16 (asserting that "[t]he U.S. legal system has had a problem with forum shopping" and that affirming the state court's decision "would dramatically expand opportunities for forum shopping"). As suggested supra note 215 and accompanying text, it is possible that these concerns may be more serious with respect to transnational claims that are filed in state courts with versions of the forum non conveniens doctrine that are not as robust as the federal doctrine and that are not removable to federal court Concern about forum shopping was an explicit factor in the Supreme Court's 1981 adoption of a more robust forum non conveniens doctrine in Piper Aircraft Co. v. Reyno. See 454 U.S. 235 (1981) (asserting that "[t]he American courts, which are already extremely attractive to foreign plaintiffs, would become even more attractive" and "[t]he flow of litigation in to the United States would increase and further congest already crowded courts").
364. 223 See supra Part III. Clermont has suggested that the courts may be moving back toward a stricter abuse-of-process approach to forum non conveniens.
365. Kevin M. Clermont, The Story of Piper: Forum Matters, in CIVIL PROCEDURE STORIES 199, 224 (Kevin M. Clermont ed., 2d ed. 2009). My data is not inconsistent with this possibility: forum non conveniens dismissal rates in the published decisions of the U.S. district courts have declined from an estimated 61.3% [48.8, 72.4] in 1990-94, to 45.0% [33.1, 57.5] in 1995-99, to 38.6% [29.1, 49.1] in 2000-2005.
366. But see Childress, supra note 116 (presenting evidence of an increase in the dismissal rate to 62% since 2007). The overlapping confidence intervals indicate that these comparative estimates are somewhat uncertain. However, if there has in fact been such a decline, it may be partly due to selection effects. Having received the judicial signal that dismissal of transnational suits on forum non conveniens grounds is likely and aware that the likelihood of dismissal increases as the connections between the litigation and the United States decrease, plaintiffs may now be filing transnational suits in U.S. courts that, on average, have closer connections to the United States (and which are therefore less likely to be dismissed) than previously. In other words, plaintiffs may be learning: the cases most likely to be dismissed on forum non conveniens grounds may increasingly be selected out by plaintiffs' filing decisions, thus depressing forum non conveniens dismissal rates.
367. See supra Part III.B.2.
368. cf. John R. Wilson, Coming to America to File Suit: Foreign Plaintiffs and the Forum Non Conveniens Barrier in Transnational Litigation, 65 OHIO ST. L.J. 659, 661 (2004) (arguing that the forum non conveniens doctrine "makes American justice less accessible to foreign plaintiffs").
369. For a discussion of the potential costs to foreign relations and the regulatory costs of limiting court access in transnational disputes using instruments such as the forum non conveniens doctrine, see Robertson, supra note 11.
370. See Stephen B. Burbank, Jurisdictional Conflict and Jurisdictional Equilibration: Paths to a Via Media?, 26 Hous. J. INT'L L. 385, 398 (2004) (arguing that forum non conveniens dismissals are often insuperable barriers to transnational claims);
371. Robertson, supra note 89, 417-21 (finding that after forum non conveniens dismissals, plaintiffs rarely refile in the proposed alternative forum).
372. See Lear, supra note 112, at 562 (arguing that liberal use of forum non conveniens doctrine undermines an important national interest in deterring harmful transnational activity);
373. Weinberg, supra note 9, at 70-71 (arguing that application of foreign law rather than U.S. law both undermines regulation and risks eroding national and worldwide safety and security);
374. Stephen J. Darmody, Note, An Economic Approach to Forum Non Conveniens Dismissals Requested by U.S. Multinational Corporations-The Bhopal Case, 22 GEO. WASH. J. INT'L L. & ECON. 215, 240-51 (1988) (arguing that by sending transnational suits to jurisdictions that will not ensure that defendants adequately internalize negative externalities of their transnational activity, forum non conveniens dismissals can reduce economic efficiency).
375. Marc Galanter et al., How to Improve Civil Justice Policy: Systematic Collection of Data on the Civil Justice System Is Needed for Reasoned and Effective Policy Making, 77 JUDICATURE 185 185 (1994).
376. 229 See, e.g., Ashcroft v. Iqbal, 129 S. Ct 1937, 1949-54 (2009) (adopting more restrictive pleading standards);
377. Celotex Corp. v. Catrett, 477 U.S. 317, 322-28 (1986) (reducing moving party's burden in summary judgment context).
378. See generally Robertson, supra note 11 (documenting reduced court access in transnational litigation);
379. A. Benjamin Spencer, Iqbal and the Slide Toward Restrictive Procedure, 14 LEWIS & CLARK L. REV. 185, 200 (2010) (referring to "a shift toward a restrictive ethos in civil procedure, meaning an edios oriented more towards protecting the interests of defendants-particularly those from the dominant or commercial class-against the civil claims of members of societal out-groups" (footnote omitted)).