“As a moth is drawn to the light, so is a litigant drawn to the United States.” — Lord Denning
Was Lord Denning right? Last month the U.S. Supreme Court heard oral argument in Morrison v. National Australia Bank on the issue of whether a foreign plaintiff could use U.S. courts to file international securities class actions.
This has to be one of the most interesting international cases heard before the Court in the last few years.
Morrison v. National Australia Bank* seemed to confirm Lord Denning’s decades-old aphorism that United States courts are being inundated by an ever-increasing number of foreign-oriented lawsuits brought by both United States and non-United States citizens.
Or so I thought.
I bring this up because I just read an excellent article in the Cornell Law Review challenging the conventional understanding of an international litigation explosion in the U.S. The article, The Evolving Forum Shopping System, by Christopher A. Whytock, shatters my perception that the number of foreign litigants filing claims in U.S. courts has been increasing.
Rather, the article presents empirical evidence that international forum shopping into U.S. courts has actually been decreasing. The article, embedded in its entirety below, is worth reading. You’ll see why.
As the abstract suggests, the “Article’s findings pose a genuine puzzle for legal scholars: Why, in an age of globalization in which one would expect an increase in disputes between U.S. citizens and foreign citizens—and why, given the well-documented attractions that the U.S. legal system offers to plaintiffs—would the number of alienage filings be decreasing?”
Those are excellent questions. The article suggests some intriguing possibilities. For example, maybe international disputes that would once have been filed in the U.S. federal courts are increasingly being filed in U.S. state courts or submitted to international arbitration.
Or perhaps U.S. tort reform has reduced the attractiveness of the U.S. legal system for plaintiffs relative to other legal systems or changes to foreign legal systems have increased their attractiveness compared to the United States.
So many possibilities. What do you think?
*For additional reading on Morrison v. National Australia Bank, see my previous posts: U.S. Supreme Court to Decide Whether Foreign Plaintiffs Can Use American Courts to File International Securities Class Actions and Post-Game Analysis of Morrison v. National Australia Bank. Read the Transcript Here.