The Political Question Doctrine in the Lower Courts
Curt Bradley and Eric Posner have posted to SSRN a fascinating new paper about the political question doctrine. In The Real Political Question Doctrine, they take an empirical look at cases applying the doctrine in the lower federal courts since the Supreme Court’s 1962 decision in Baker v. Carr. Among other things, they find that…
Continue ReadingHas the Alien Tort Statute Made a Difference?
In a globalized and interconnected world, human rights litigation has, by necessity, become transnational. For decades, the Alien Tort Statute (ATS) was viewed as a beacon of American justice for foreign victims of human rights violations. However, a series of Supreme Court decisions—most recently the paired cases of Nestlé USA, Inc. v. Doe and Cargill,…
Continue ReadingNew Scholarship on the Argentinian Sovereign Debt Litigation
For more than a decade in the early 00s, Argentina’s $100 billion sovereign debt default dominated the transnational litigation news headlines – and, indeed, global financial news. Hundreds of cases were filed against Argentina in U.S. courts with long-term implications for foreign sovereign immunity and foreign direct investment. Many of those cases were consolidated before…
Continue ReadingEnforcing Chinese Judgments
It has become routine for courts in the United States to recognize and enforce Chinese judgments, subject to the same limits that are applied to judgments from other countries. Last year, a New York court threatened to upset this positive trend. Relying on U.S. State Department Country Reports noting corruption and lack of judicial independence…
Continue ReadingForeign Defendants and the Future of Personal Jurisdiction
The Supreme Court recently granted certiorari in yet another personal jurisdiction case (the eighth such case in just over ten years). Mallory v. Norfolk Southern Rwy. Co. has no transnational facts, but it is highly relevant for the future of transnational litigation in U.S. courts. Corporate registration statutes, like the one being challenged in Mallory,…
Continue ReadingRecent Scholarship on Political Economy and the Foreign Sovereign Immunities Act
Professor Maryam Jamshidi (@MsJamshidi) just published an article highlighting the relationship between capitalism and the law of foreign sovereign immunity, especially in the United States. The article includes a detailed and rich account of current developments under the Foreign Sovereign Immunities Act (FSIA). It comes as no surprise that the United States (and other global actors)…
Continue ReadingSubstituted Service and the Hague Service Convention
Can state law be used to avoid a federal treaty, even though the Supremacy Clause of the U.S. Constitution makes treaties supreme over state law? The somewhat surprising answer is yes—at least when it comes to the Hague Service Convention and state rules on substituted service. The Hague Service Convention governs transnational service of process…
Continue ReadingNew Article Argues that the Helms-Burton Act Has Backfired
In an article recently posted on SSRN, Gergana Sivrieva surveys cases filed under Title III of the Helms-Burton Act for trafficking in expropriated property. She shows that, surprisingly, the principal defendants have not been foreign companies investing in Cuba but rather U.S. companies with only attenuated connections to such property. Congress passed the Helm-Burton Act…
Continue ReadingRecent Scholarship on Antisuit Injunctions
Giuseppe Colangelo and Valerio Torti have posted an interesting paper on antisuit injunctions in patent litigation. The paper helpfully surveys recent clusters of litigation in China, Europe, the United Kingdom, the United States and elsewhere. Especially notable is the growth both in antisuit injunctions against Chinese companies and in antisuit injunctions issued by Chinese courts…
Continue ReadingCustomary International Law’s Domestic Status: Reflections After Twenty-Five Years
We are grateful to Bill Dodge for highlighting our 1997 article on the domestic legal status of customary international law. In that article, we critically analyzed what we referred to as the “modern position,” which is the claim made by some academics and the Restatement (Third) of Foreign Relations Law that customary international law has…
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