Federalism, Forum Shopping and the Foreign Injury Paradox
51 Pages Posted: 15 Apr 2009
Date Written: April 14, 2009
Forum shopping is a way of life in domestic torts litigation, provoking little more than a wink and a nod from the federal judiciary. The Supreme Court's tolerant attitude fits neatly with its commitment to federalism. But move the accident offshore, and the Court's deference to state regulatory supremacy evaporates. This Article explores both the scope of state prescriptive authority in a global economy and potential external limits on that power. To examine this problem, I focus on products liability claims by foreign plaintiffs against American defendants. This Article finds that states retain substantial deterrence interests in global products injuries. From the states' perspective, it is often irrelevant whether an out-of-state injury occurs in a sister state or a foreign state. Moreover, a close examination of the Restatement (Third) Foreign Relations, the federal Foreign Relations powers, and the Due Process and Full Faith and Credit Clauses reveals only minor restrictions on state jurisdiction to prescribe in the transnational torts arena. This Article concludes that federal court oversight of these international diversity actions is inconsistent with the central goals of American federalism and unsupported by either the Constitution or Customary International Law.
Keywords: forum shoopping, products liability, foreign plaintiffs, Restatement (Third) Foreign Relations, transnational torts, federalism
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