Admiralty’s Influence on Transnational Procedure

4-Masted Schooners by Jingles the Pirate (CC BY-NC 2.0)

Admiralty was the original site of transnational litigation in U.S. courts. Given the breadth of admiralty jurisdiction, the federal courts developed a number of procedural tools for balancing international comity and practical concerns in these international business disputes. Just because a foreign ship showed up in a U.S. port, for instance, didn’t mean a U.S. court should resolve a run-of-the-mill dispute between the foreign crew and foreign captain—unless, of course, justice demanded immediate intervention. Figuring out whether a dispute between foreigners should be deferred to foreign authorities or adjudicated in a U.S. court, in turn, required nuanced and discretionary doctrines.

As commerce evolved, transnational disputes showed up more frequently on the law and equity dockets. In a new essay (Admiralty’s Influence), I describe how the Supreme Court, over the course of the twentieth century, migrated three admiralty doctrines to more general use: forum non conveniens, the enforcement of forum selection clauses, and the internal affairs doctrine (which informed the modern presumption against extraterritoriality). I have no quarrel with the evolution of procedural doctrine—I think procedure should change to match the changing needs of society. But because the Supreme Court obfuscated these particular migrations, it avoided confronting the separation of powers concerns that these doctrines raise in their new contexts.

There are at least three reasons we should pay attention to the admiralty roots of these doctrines. First, this history reminds us that these doctrines are not as timeless or inevitable as Supreme Court decisions might suggest. If the doctrines are creatures merely of twentieth century convenience, they can be revised or updated to address changing twenty-first century needs. Second, these doctrines lost valuable nuance when they migrated over to general procedural practice. One way in which these doctrines might be refined, then, would be to reintroduce the contextual flexibility they previously enjoyed. Third, we should pay more attention to the separation of powers implications of these doctrines: the assertion of judicial power to decline congressionally granted jurisdiction, for instance, or to narrow the application of congressional statutes. In the form we teach them to law students today, these doctrines—forum non conveniens, enforcement of forum selection clauses, and the presumption against extraterritoriality—represent greater judicial lawmaking than the language of the Supreme Court opinions would suggest to the casual reader.