Politics and the Rule of Law in Transnational Judicial Governance: The Case of Forum Non Conveniens

Abstract

Domestic courts play an important role in the regulation of transnational economic activity, which I refer to as "transnational judicial governance." However, because judicial politics scholars have focused primarily on matters of domestic policy and international relations scholars have virtually ignored domestic legal institutions, we have very little knowledge about how domestic courts behave as global governors and why. In particular, are the determinants of domestic court decisionmaking in transnational judicial governance primarily political, as leading theories of judicial decisionmaking and international relations would suggest? Or, given the distinct nature of domestic courts as legal institutions, is transnational judicial governance instead based on the rule of law?

To answer this question, this paper focuses on one important example of transnational judicial governance decisionmaking: the choice between the assertion of domestic adjudicative authority and deference to foreign adjudicative authority over transnational activity based on the doctrine of forum non conveniens. Drawing on theories of judicial decisionmaking, international relations, private international law, and bounded rationality, and using statistical and qualitative analysis of an original dataset of over 200 forum non conveniens decisions in U.S. district courts, I test a series of hypotheses about the political and rule-of-law factors that determine the choice between domestic and foreign adjudicative authority. I find that rule-of-law factors predominate. Although U.S. district court judges are more likely to defer to foreign governance authority if the foreign state is a liberal democracy, Republican judges are no less likely than Democratic judges to defer to foreign governance authority; and the most important factor appears to be the use of a particular decisionmaking shortcut or "heuristic" that allows judges to make legally competent choices between domestic and foreign authority while conserving scarce decisionmaking resources.

Keywords: Forum Non Conveniens, Private International Law, International Law, Conflict of Laws, Civil Procedure, Transnational Litigation, International Litigation, International Relations, Global Governance, Law and Economics, Empirical Legal Studies, Judicial Behavior, Judicial Decisionmaking