Admiralty's Influence

28 Pages Posted: 6 Feb 2023 Last revised: 16 Feb 2023

Date Written: January 31, 2023

Abstract

Over the course of the twentieth century, as transnational litigation expanded beyond the realm of maritime trade, the U.S. Supreme Court migrated special admiralty procedures into general civil practice. Because the Supreme Court did not account for the admiralty roots of these procedures, it never fully addressed the separation-of-powers implications of their migration. The procedures also lost important nuance in the process of migration, ossifying into tools of docket control that do not adequately account for international comity or fairness concerns.

This Article traces the migration of three such doctrines: forum non conveniens, the enforcement of forum selection clauses, and the modern presumption against extraterritoriality. That story provides a few insights: First, these doctrines are not as timeless or inevitable as judicial decisions—particularly those of the Supreme Court—might suggest. As modern reinventions, there is no reason they cannot be further reformed or refined (or reconsidered altogether). Second, in the transition to general civil practice, these doctrines lost much of the nuance regarding international comity that informed their use in admiralty. One way in which these doctrines might be refined, then, would be to reintroduce the contextual flexibility they previously enjoyed.Third, because the transformation of these admiralty doctrines into doctrines of general applicability was not explicit, the Supreme Court did not attempt to justify the migrated doctrines’ greater incursion on the legislative powers of Congress or the states. These doctrinal migrations thus represent greater judicial lawmaking than the language of the Supreme Court opinions would suggest to the casual reader.

Suggested Citation

Gardner, Maggie, Admiralty's Influence (January 31, 2023). George Washington Law Review, Vol. 91, 2023, Cornell Legal Studies Research Paper No. 23-05, Available at SSRN: https://ssrn.com/abstract=4345396

Maggie Gardner (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

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