17 September 2008

Dubinsky on Transnational Litigation and American Exceptionalism

Paul R. Dubinsky (Wayne State) has posted 'Is Transnational Litigation a Distinct Field? The Persistence of Exceptionalism in American Procedural Law' on SSRN (Stanford Journal of International Law, Vol. 11/1 - 2008). This is the abstract:

Sometime in the future, the current period may come to be regarded as a critical stage in the development of transnational law. It may even be seen as a juncture from which the transnational perspective on many fields of law moved from the exotic to the mainstream and even to the pervasive. The current article examines the state of play of transnationalism in one field, civil procedure, and in one legal system, that of the United States. The focus is on the sophistication with which American courts apply U.S. procedural law in adjudicating disputes with a transnational dimension.

Within the community of American scholars of civil procedure and conflict of laws, something approaching a consensus has emerged in this area. These scholars argue that modern litigation with an international component is different in so many ways from wholly domestic litigation as to require a change in both perspective and nomenclature; litigation of transnational disputes needs to be seen as a distinct field, with a set of procedural norms and rules that differ in important respects from those that apply in purely domestic litigation. These arguments are echoed by prominent members of the bar who maintain that, in the future, effective transnational dispute resolution increasingly will require a body of rules (e.g., jurisdictional rules, rules regarding pretrial discovery and evidence) that are autonomous from those that apply in domestic litigation.

The current article calls this consensus into question. It does so by placing the narrow debate about whether transnational litigation is a distinct field into a wider context - the literature on "American exceptionalism," or the extent to which facets of the U.S. legal system are not just different from other legal systems, but much different. Specifically, the article's focus is on exceptionalism in the U.S. approach to procedural law. At the heart of the analysis is an aspect of transnational litigation in U.S. courts that is rarely discussed: American courts approach litigation that is international in scope as if it were merely a minor variation on litigation that is interstate in scope. Courts apply the same doctrines and intellectual frameworks in both kinds of cases and routinely rely on interstate precedents in international cases, and vice versa. By means of a close analysis of case law in three areas - personal jurisdiction, judicial assistance, and pretrial discovery - the current work shows that this tendency to analogize the interstate lawsuit to the transnational one has deep roots in American law and continues to the present day.

What emerges from this analysis of "interstate-international equivalence" is a set of cautions for those who argue that an increasingly distinct transnational approach to procedural law inevitably will continue to develop in the United States as it has elsewhere. Chief among these cautions are the following: (1) not to underestimate the extent to which interstate analogies continue to dominate the way in which U.S. courts approach disputes that are international in scope; (2) not to overlook the extent to which the American legal system, in the past, has made marginal concessions to transnationalism but not fundamental changes; and (3) not to be overly confident about the triumph of transnationalism in American procedural law based on developments in scholarship, law practice, and law reform in other countries, but rather to focus more closely on the intellectual constructs applied and adapted by American courts.

The paper offers stimulating discussions of American legal exceptionalism and interesting analogies for the process of 'Europeanization' of private international law. On the first issue, Dubinsky helpfully links technical debates over procedural law to broader discussions on the impact of globalization on local understandings:

"At stake in the debate about the status of transnational litigation is whether the American legal system is entering a new period of openness to outside influences and, if so, whether or not this is to be applauded. At issue is whether the U.S. approach to adjudication should retain core features that distinguish it from other legal systems: notice pleading, broad and expensive pretrial discovery, a permissive approach toward concurrent jurisdiction and forum shopping, the predominance of multi-factored tests rather than clear rules, the important role assigned to lay persons as jurors, high rates of settlement, unusually high damages awards, the availability or threat of punitive damages, the presumption against awarding attorneys-fees to the prevailing party".

What follows is a - healthy - antidote to common over-enthusastic 'internationalist' readings of the available evidence:

"The chief problem with much of the American literature on transnational civil litigation is that it ignores what American courts are actually doing. For all the strengths of the normative arguments advanced by transnationalists, their descriptive account is flawed. Changes in law practice, legal education, and global business are offered as evidence of the inevitability of major changes in the way that the U.S. legal system relates to the wider world. To be sure, the changes brought on by the latest wave of globalization are real, but as [this article] shows, it is a leap of faith to infer that the American legal system will respond systematically and not incrementally and marginally, as it has in the past".

From a European perspective, the paper raises interesting questions about the character of the realities of the Europeanization of private international law in EU member states. The unprecedented top-down unification of conflict of laws and conflict of jurisdiction rules in Europe (Brussels I & II, Rome I, II and III) has already provoked questions on the reception of these modifications by local courts. A recent comprehensive study on the Brussels I Regulation found that, in particular with regard to choice of court agreements, important divergencies remain between national systems in the application of uniform European rules. In a much more limited 2005 study on jurisdiction over multiple defendants, I came to similar conclusions, the main issue in that area often being a 'national' reading of 'European' rules. Dubinsky's article provides a welcome external perspective on these processes.

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