Doubling Down on Litigation Isolationism

Abstract

Last year in the Stanford Law Review, I described an emerging trend in U.S. courts: litigation isolationism. Through developments in personal jurisdiction, forum non conveniens, international comity, and the presumption against extraterritoriality, courts have developed increasingly strong tools for avoiding transnational litigation. Decisions advancing litigation isolationism often fail to accomplish their stated goals — typically promoting separation of powers, avoiding interstate friction, and protecting defendants from the inconvenience of U.S. litigation. They also undermine important U.S. interests, often by excluding or dismissing cases that have close ties to the United States. At the end of that article, I cautioned against the continuation of the trend.

This contribution to the AJIL Unbound Agora: Reflections on RJR Nabisco v. European Community, explores the ways in which the Supreme Court's recent decision in RJR continues and expands litigation isolationism. It argues that RJR, combined with other litigation isolationism developments, will contribute to shifting regulation of transnational enterprises away from the United States and will encourage foreign nations to open their courts to similar suits. This trend will yield uneven effects on international comity and uncertain results for U.S. litigants abroad. It will also exclude more transnational litigation from U.S. courts — including cases that have "the United States written all over [them]." This contribution explains three ways in which RJR contributes to litigation isolationism and then discusses the expected consequences of these developments for international comity and for the future of transnational litigation around the world.

Keywords: RJR Nabisco, extraterritoriality, transnational litigation, litigation isolationism, RICO

JEL Classification: K1, K33, K41