Escaping Federal Law in Transnational Cases: The Brave New World of Transnational Litigation

Abstract

What happens when U.S. federal courts close their doors to transnational cases? Recent Supreme Court decisions regarding the Alien Tort Statute, extraterritorial application of U.S. federal law, personal jurisdiction, plausibility pleading, class action certification, and forum non conveniens pose substantial obstacles for transnational cases to be adjudicated by U.S. federal courts. The result of this is that plaintiffs are now seeking other law — U.S. state and foreign law — and other for a — including U.S. state and foreign courts — to escape federal law in order to plead transnational claims. This Article offers a first glimpse at a brave new world of transnational litigation where federal, state, and foreign courts compete through their courts and law to adjudicate transnational cases and regulate transnational activities. The Article also explores the impact that closing federal law and federal courthouse doors to transnational claims might have on state law, foreign law, and transnational law generally. After critically evaluating this new world of transnational litigation, the Article offers a framework for resolving forum competition in transnational cases.

Keywords: private international law, extraterritoriality, transnational forum shopping