Is Transnational Litigation a Distinct Field? The Persistence of Exceptionalism in American Procedural Law

Abstract

Sometime in the future, the current period may come to be regarded as a critical stage in the development of transnational law. It may even be seen as a juncture from which the transnational perspective on many fields of law moved from the exotic to the mainstream and even to the pervasive. The current article examines the state of play of transnationalism in one field, civil procedure, and in one legal system, that of the United States. The focus is on the sophistication with which American courts apply U.S. procedural law in adjudicating disputes with a transnational dimension. Within the community of American scholars of civil procedure and conflict of laws, something approaching a consensus has emerged in this area. These scholars argue that modern litigation with an international component is different in so many ways from wholly domestic litigation as to require a change in both perspective and nomenclature; litigation of transnational disputes needs to be seen as a distinct field, with a set of procedural norms and rules that differ in important respects from those that apply in purely domestic litigation. These arguments are echoed by prominent members of the bar who maintain that, in the future, effective transnational dispute resolution increasingly will require a body of rules (e.g., jurisdictional rules, rules regarding pretrial discovery and evidence) that are autonomous from those that apply in domestic litigation. The current article calls this consensus into question. It does so by placing the narrow debate about whether transnational litigation is a distinct field into a wider context - the literature on "American exceptionalism," or the extent to which facets of the U.S. legal system are not just different from other legal systems, but much different. Specifically, the article's focus is on exceptionalism in the U.S. approach to procedural law. At the heart of the analysis is an aspect of transnational litigation in U.S. courts that is rarely discussed: American courts approach litigation that is international in scope as if it were merely a minor variation on litigation that is interstate in scope. Courts apply the same doctrines and intellectual frameworks in both kinds of cases and routinely rely on interstate precedents in international cases, and vice versa. By means of a close analysis of case law in three areas - personal jurisdiction, judicial assistance, and pretrial discovery - the current work shows that this tendency to analogize the interstate lawsuit to the transnational one has deep roots in American law and continues to the present day.

What emerges from this analysis of "interstate-international equivalence" is a set of cautions for those who argue that an increasingly distinct transnational approach to procedural law inevitably will continue to develop in the United States as it has elsewhere. Chief among these cautions are the following: (1) not to underestimate the extent to which interstate analogies continue to dominate the way in which U.S. courts approach disputes that are international in scope; (2) not to overlook the extent to which the American legal system, in the past, has made marginal concessions to transnationalism but not fundamental changes; and (3) not to be overly confident about the triumph of transnationalism in American procedural law based on developments in scholarship, law practice, and law reform in other countries, but rather to focus more closely on the intellectual constructs applied and adapted by American courts.