'Foreignness'

Abstract

What does it mean for a case to be “foreign-cubed”? More specifically, when is a plaintiff, a defendant, or course of conduct “foreign”? The answer is not as straightforward as it may initially appear. Different doctrines draw the line differently when it comes to legal permanent residents, interrelated corporate entities, or conduct that occurs across multiple countries (or perhaps — in cases involving international waters or Bitcoin transactions — in no country). This essay, written for the twenty-fifth annual Clifford Symposium, considers the meaning and relevance of “foreignness” across procedural doctrines. The variability of foreignness underscores how the concept of foreignness is not a simple binary distinction. Rather, what counts as “foreign” depends on the question being asked, with the line between “here” and “there” varying depending on the doctrine and the context.

The complexity of foreignness should in turn challenge judges, litigants, and observers to question what rhetorical work the concept of “foreignness” is doing in judicial reasoning. The concept of foreignness, particularly when unmoored from specific doctrines, is not self-explanatory. Labels like “foreign-cubed” are not objective determinations as much as tropes that signal the author’s gestalt conception of a case. The goal of this essay is thus two-fold: to map some of the different meanings of “foreignness” in procedure in order to encourage its more precise invocation, and to caution against the rhetorical use of “foreignness” as a self-explanatory short-hand for dismissing, or dismissively treating, cases in U.S. courts.

Keywords: transnational litigation, federal courts, personal jurisdiction, alien tort statute, presumption against extraterritoriality