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Conflict-of-Laws Considerations in State Court Human Rights Actions

3 U.C. Irvine Law Review 45 (2013)

17 Pages Posted: 24 Mar 2013  

Patrick Joseph Borchers

Creighton University School of Law

Date Written: March 19, 2013

Abstract

As U.S. Supreme Court decisions have curtailed the availability of civil redress for human rights violations under the Alien Tort Statute, victims of human rights abuses are beginning to consider U.S. state courts as a possible forum. In some cases, state courts may prove to be a superior forum, however in many cases they will offer little -- if any -- hope of meaningful redress. In the paradigmatic case of a civil plaintiff seeking redress for torture, forced labor or other atrocities -- usually as the result of an alleged conspiracy between foreign governments and private corporations or individual operating abroad -- state choice-of-law doctrines will often require the application of the tort law of the foreign country, as well as the law relative to damages available. In many cases, the law choice will prove to have a crippling effect on the viability of U.S. litigation. Moreover, recent U.S. Supreme Court decisions limiting the personal jurisdictional reach of state courts over foreign corporations may make state courts unavailable for jurisdictional reasons. Finally, the common law doctrine of forum non conveniens may make state courts unavailable to victims of human rights abuses even if the state court has jurisdiction. In some cases, state courts will prove to be a preferable forum to federal court. However, prospective litigants and their counsel will need to carefully consider the potential pitfalls of filing in state court.

Keywords: choice of law, conflict of laws, personal jurisdiction, human rights, alien tort statute, state courts

JEL Classification: K10, K13, K30, K33, K40, K41, K42

Suggested Citation

Borchers, Patrick Joseph, Conflict-of-Laws Considerations in State Court Human Rights Actions (March 19, 2013). 3 U.C. Irvine Law Review 45 (2013). Available at SSRN: https://ssrn.com/abstract=2235864

Patrick Joseph Borchers (Contact Author)

Creighton University School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States
402-280-3009 (Phone)
402-280-3161 (Fax)

HOME PAGE: http://culaw2.creighton.edu

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