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 ReadingSupreme Court Round-Up, OT 2021
Transnational litigation has been a persistent, if small, part of the Supreme Court’s docket in the Roberts Court. With the Supreme Court now on its summer break, here is a summary of TLB’s coverage of October Term 2021 cases, which included important decisions on choice of law and federalism and on discovery for use in…
Continue ReadingWhen Should Federal Common Law Govern Transnational Litigation?
The conventional wisdom is that transnational litigation “can trigger foreign relations concerns.” Because the federal government has primary responsibility for the United States’ relations with other nations, the question naturally arises whether federal law should govern such litigation even when neither a federal statute, nor the U.S. Constitution, nor a treaty is applicable. Currently, as…
Continue ReadingHighlights from the Media Coverage of ZF Automotive
The Supreme Court’s unanimous decision in ZF Automotive US, Inc. v. Luxshare, Ltd. has generated discussion, criticism, and approval in the transnational litigation and international arbitration communities. Writing for the Court, Justice Barrett relied on the meaning of the term “tribunal,” specifically when paired with “foreign” or “international,” to resolve a major circuit split and…
Continue ReadingZF Automotive: Closing a Door, Opening a Window
The Supreme Court’s decision in ZF Automotive US, Inc. v. Luxshare, Ltd. drew a bright line for a statute that is otherwise regulated almost entirely by judicial discretion. In a terse and unanimous opinion, Justice Barrett wrote that Section 1782 does not permit district courts to order discovery for use in private international arbitration. The…
Continue ReadingZF Automotive: A Practitioner’s Perspective
As a practitioner in commercial litigation with an emphasis on China-related cross-border disputes, I have been eagerly anticipating the Supreme Court’s decision in ZF Automotive US Inc. v. Luxshare, Ltd., resolving a circuit split on the applicability of Section 1782 discovery to private international arbitration. In this post, I share the practitioner’s perspective on what…
Continue ReadingThe Dogs that Didn’t Bark in ZF Automotive
I confess I’m not big on blogs. They often do more mischief than good, and posts can distract folks from their day jobs (whether research or deaning). Then again, who can say no to a friendly request from good people like Maggie, Ingrid, Bill and John? Plus, several of us appeared in the case (George…
Continue ReadingZF Automotive: Predictable Outcome, Lackluster Reasoning
Whatever one may think of it, the Court’s decision in ZF Automotive US, Inc. v. Luxshare, Ltd. is not a surprise. It reflects the forceful intervention of the U.S. Government and aligns well with the drift of the Court’s conduct of oral argument in the case. Even the constituency most apt to want to use…
Continue ReadingSupreme Court Holds in ZF Automotive That Section 1782 Does Not Apply to International Arbitration
The Supreme Court held today that Section 1782 does not apply to international arbitration—neither international commercial arbitration nor investor-state arbitration. Writing for a unanimous Court, Justice Barrett held that only governmental or intergovernmental adjudicative bodies fall within the scope of the provision. Section 1782 authorizes federal district courts to order persons residing or found within…
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