Despite suggestions that federal law should govern all relations with other countries, state law and state courts play a prominent role in transnational litigation. State law governs the enforcement of foreign judgments and the choice of law for state-created causes of action. State courts apply their own doctrines of forum non conveniens. And the Federal Rules of Civil Procedure incorporate state law on questions from personal jurisdiction to service of process.
A Primer on State Law in Transnational Litigation
The procedural and substantive rules that U.S. courts apply in transnational litigation come from many sources, including the U.S. Constitution, international treaties, customary international law, federal statutes, federal rules, and federal common law (both preemptive and non-preemptive)—but also, state statutes, state rules, and state common law. This primer focuses on the underappreciated role of state…
Continue ReadingMore on Serving Foreign Defendants’ U.S. Counsel to Avoid the Hague Service Convention
In April, one of us wrote a post describing a case in which Judge Carol Bagley Amon (Eastern District of New York) relied on New York rules to order service on foreign defendants through their U.S. counsel. Because the service was completed in the United States, there was no occasion to transmit documents for service…
Continue ReadingState Presumptions Against Extraterritoriality Apply to State Statutes
At TLB, we write a lot about extraterritoriality in general and about the federal presumption against extraterritoriality in particular. For the last three decades, the federal presumption has been the principal tool that courts have used to determine the geographic scope of federal statutes. But what if the statute in question is a state statute?…
Continue ReadingForeign Law in State Courts
The Yale Journal of International Law recently published my article, Foreign Law on the Ground. The article is a comprehensive study of the treatment of foreign law in U.S. courts. Most the prior scholarship on foreign law in U.S. courts has focused on federal courts and Federal Rule 44.1. My article discusses federal courts, but…
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