New Article on Old Admiralty Discretion

The Notre Dame Law Review has just published my new article, “Admiralty, Abstention and the Allure of Old Cases.” The heart of the article is a description of the federal courts’ long-standing discretion to decline jurisdiction over admiralty disputes between foreign parties. Defendants in transnational cases have recently tried to invoke this old admiralty practice to support a broad new form of abstention based on foreign relations concerns. I argue that these old admiralty cases do not directly support a new form of abstention, at least not without some additional judicial lawmaking. Rather, the doctrine evolved into (and has been subsumed by) today’s federal doctrine of forum non conveniens.

Of particular interest for TLB readers, the article’s description of the admiralty practice paints a refreshing picture of the early federal courts as cosmopolitan and alert to the needs of the global system of maritime trade. The admiralty courts not infrequently chose to hear disputes involving solely foreign parties arguing about claims that arose outside of the United States. Sometimes they deferred to the requests of foreign consuls; other times they retained jurisdiction over foreign cases over the protests of foreign consuls. And sometimes they proclaimed themselves “courts of the world” in adjudicating foreign sailors’ allegations of mistreatment by foreign captains that bordered on torture.

Here is the abstract:

The current Supreme Court has made clear that history matters.  But doing history well is hard.  There is thus an allure to old cases because they provide a link to the past that is more accessible for nonhistorian lawyers.  This Article warns against that allure by showing how the use of old cases also poses methodological challenges.  The Article uses as a case study the emerging doctrine of foreign relations abstention.  Before the Supreme Court, advocates argued that this new doctrine is in fact rooted in early admiralty cases.  Those advocates did not, however, canvass the early admiralty practice, relying instead on just a few citations and cherry-picked quotations.  And even if they had correctly identified the historical admiralty practice, they did not explain their logic for linking that practice to today’s doctrinal landscape.

This Article tackles both problems.  It draws on around 130 admiralty cases to paint a more complete picture of the admiralty courts’ jurisdictional discretion.  Of greatest relevance to today’s debates, the discretion to dismiss admiralty cases was limited to disputes involving no U.S. parties, and the views of foreign states were not dispositive.  The Article then considers how advocates and judges could make use of those admiralty cases today.  Old cases might be precedent that directly supports foreign relations abstention, original law that permits foreign relations abstention, or lived experience that helps justify foreign relations abstention.  Proponents seem to have in mind the first two uses of the historical admiralty practice, but only the third lends support to the emerging doctrine of foreign relations abstention.  Forthrightly embracing that third approach, however, would put foreign relations abstention at odds with the Supreme Court’s efforts to constrain prudential discretion in other contexts.

The Article does not try to choose among these different logics, nor does it critique the Court’s antiprudential turn.  Rather, it uses the debate over foreign relations abstention to illustrate how different approaches to historical caselaw can result in vastly different legal conclusions, and it warns against deploying a patina of doctrinal history to hide the very same judicial lawmaking that the Supreme Court has elsewhere carefully disclaimed.