Response or Comment
Stanford Law Review Online
In a recent article, Litigation Isolationism, Pamela Bookman identifies a phenomenon that similarly changes hue depending on one’s perspective or disposition. Bookman argues that four doctrines (personal jurisdiction, forum non conveniens, abstention comity, and the presumption against extraterritoriality) conspire to make U.S. courts significantly less hospitable to transnational litigation. In Bookman’s assessment, such isolationism is counterproductive because the doctrines often fail to vindicate their stated goals of respecting the separation of powers, international comity, and defendants’ interests. The article is crisp and elegant. It synthesizes disparate areas of law to elucidate a broader development in civil litigation. And it makes an important contribution to a growing literature on how the United States, once a magnet for transnational litigation, has increasingly closed its doors to such cases.
My first and principal contention is that litigation isolationism is not necessarily a coherent or volitional project. Instead, it arose through the confluence of two different strands of jurisprudence—doctrinal coherence and domestic litigation avoidance. Second, I suggest that the effect of such isolationism is perhaps more muted than Bookman suggests. For example, U.S. courts seem far more willing to embrace public law cases with a transnational valence even as they eschew increasing numbers of purely private transnational disputes. Thus, the “foreignness” of the cases that Bookman discusses might— counterintuitively—not be the driving force behind the isolationism.
Alan M. Trammell, Isolating Litigants: A Response to Pamela Bookman, 68 Stan. L. Rev. Online 33 (2015).