Throwback Thursday: The Legacy of Paxton Blair

Paxton Blair, a New York attorney practicing in the 1920s, has influenced American law to an extent most law professors can only dream of. His 1929 Columbia Law Review article, The Doctrine of Forum Non Conveniens in Anglo-American Law, introduced the term “forum non conveniens” to the United States. (As he noted, only a few U.S. judicial opinions had previously used the expression.) He attached the label to the long-standing New York state court practice of declining jurisdiction in tort cases that had no New York parties and no relevant New York conduct, and he advocated its wider adoption. In that he was wildly successful: One hundred years later, forum non conveniens is a standard topic in first-year civil procedure courses. Blair’s article has been cited by at least 73 U.S. courts (according to Hein Online), including six U.S. Supreme Court decisions. It remains the citation for the provenance of forum non conveniens in the United States. Read as a work of scholarship, however, it has a replication problem.

Stripped of tangents and cases resolved on non-discretionary grounds, Blair’s article relies almost entirely on New York state court cases. Notably, the thinness of Blair’s case for forum non conveniens has long been acknowledged. Writing at the moment when the federal courts first adopted the practice in 1947 (in reliance on Blair’s article), Edward L. Barrett, Jr., emphasized in The Doctrine of Forum Non Conveniens (California Law Review) that “few American courts have actually accepted the doctrine.” To the contrary, many states had rejected it, and “[i]n most states it has not even been considered.” Even in 1947, according to Barrett, “it can be said to be in operation in barely half a dozen states.” Barrett’s account largely matches what Bill Dodge, Chris Whytock, and I found in our recent study of state doctrines of forum non conveniens. Only after Blair’s article—and the U.S. Supreme Court’s embrace of his theory in Gulf Oil Co. v. Gilbert—did forum non conveniens spread gradually across state courts.

Also writing in 1947, Robert Braucher in The Inconvenient Federal Forum (Harvard Law Review) took Blair to task for “classifying under forum non conveniens a number of cases which turned on [nondiscretionary] principles of jurisdiction and venue.” Blair had baldly asserted that cases dismissed for involving local (rather than transitory) actions or “the supervision of the internal affairs of a foreign corporation” were really forum non conveniens cases—even though such circumstances necessitated the dismissal of actions. He also counted as forum non conveniens decisions those in which courts were unwilling to apply other sovereigns’ revenue laws or in which the foreign law to be applied was so dissimilar to local law that it would be impossible or contrary to public policy to apply it—again, cases in which courts concluded they lacked the ability to resolve the claim. As Braucher summarized, “meaningful discussion requires that cases of discretion be distinguished from those where the court has announced its adherence to a ‘rule of law.’”

Nonetheless, Blair’s article has successfully created a myth of forum non conveniens as deeply embedded in our common law. For those of us writing articles today, his success offers several lessons (for better or for worse). First is the rhetorical effect of string citations: the sheer density of Blair’s footnotes signals history and consensus, even if it turns out that many of those citations were slightly besides the point. Second is the power of a good label: the neo-Latin phrase provides a pithy shorthand for a complex doctrine while wrapping it in patina of antiquity. Third is the sensitivity to a felt need among judges and practitioners: the presence-based paradigm of personal jurisdiction was exorbitant, and courts were struggling with how to handle cases that had no connection to the forum other than the temporary presence of an individual or a corporate agent. (Before the 1950s, forum non conveniens was solely applicable in such “foreign-cubed” cases.)

Indeed, both Barrett and Braucher agreed as to the need for a doctrine of forum non conveniens—they were simply more clear-eyed about how novel the doctrine really was. Yet even though their articles have also been widely cited by courts, their critiques of Blair’s authorities never made a real impact on the mythology of forum non conveniens that Blair created. Blair’s article may not have been good scholarship, but it turned out to be very effective advocacy.