Forum Non Conveniens in the Fourth Restatement

2020 ◽  
pp. 359-370
Author(s):  
Donald Earl Childress
Keyword(s):  
Foreign Relations ◽  
Federal Court ◽  
The United States ◽  
Federal Courts ◽  
Judicial Discretion ◽  
Court Decisions ◽  
Public And Private ◽  
Private Interests ◽  
Forum Non Conveniens

This chapter analyzes the approach taken by the Fourth Restatement of the Foreign Relations Law of the United States to the forum non conveniens doctrine in light of the doctrine’s history and present usage. The Fourth Restatement states succinctly the forum non conveniens doctrine: A U.S. federal court “may dismiss a case if: (a) there is an available and adequate alternative forum; and (b) despite the deference owed to the plaintiff’s choice of forum, the balance of public and private interests favors dismissal.” The Fourth Restatement next details in the comments various intricacies of the doctrine and proposes rules derived from U.S. federal court decisions with the hope of constraining judicial discretion in applying the main rule. These rules illustrate that the Fourth Restatement treats the forum non conveniens doctrine as a doctrine of law, as opposed to one of judicial discretion. In so doing, the Fourth Restatement formulates clear rules for U.S. federal courts to apply in resolving a forum non conveniens motion. This chapter considers Supreme Court decisions developing the doctrine to set the stage for assessing the Fourth Restatement’s approach and explores the doctrine as it has developed through various restatement projects, including the Fourth Restatement. The chapter concludes by examining the role of party interests in the forum non conveniens analysis and explores tensions in the doctrine that should be accounted for by U.S. federal courts and in future restatement projects.

International Law in American Courts

2020 ◽  
pp. 145-178
Author(s):  
Gary Born
Keyword(s):  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Current Treatment ◽  
Federal Courts ◽  
National Interests ◽  
Public And Private ◽  
State Involvement ◽  
System P ◽  
The Status

This chapter looks at the grave flaws in the current treatment of international law in American courts. Both the status and content of public and private international law in the United States are uncertain, frequently governed by contradictory or parochial rules of State law; the resulting body of international law that is applied by U.S. courts is unpredictable and incoherent. Over the past fifty years, U.S. federal courts have also increasingly marginalized both international law and the role of American courts in resolving international disputes. This treatment of international law threatens serious damage to historic U.S. values and frustrates vitally important national policies. The chapter then considers how the current treatment of international law in American courts is also contrary to the U.S. Constitution’s allocation of authority over the nation’s foreign relations and international trade, which vests the federal government with both plenary and exclusive authority over U.S. foreign relations and commerce, while, exceptionally, forbidding State involvement in either field. Moreover, this treatment conflicts with vital national interests and policies in both fields, frustrating long-standing national interests in the nation’s compliance with international law and development of the international legal system.

28 USC § 1782—looking for consensus

2019 ◽  
Vol 35 (3) ◽  
pp. 331-345
Author(s):  
David J Stute
Keyword(s):  
United States ◽  
Federal Court ◽  
The United States ◽  
Federal Courts ◽  
The Other ◽  
Court Decisions ◽  
Arbitral Tribunal ◽  
Civil Proceedings ◽  
The Subject ◽  
Definition Of

Abstract Since the 1948 enactment of 28 USC § 1782 in the United States, no consensus has emerged as to the availability of federal court discovery to parties in private foreign or international arbitral proceedings. This year, within months of one another, six federal courts have issued rulings that are widely inconsistent on the availability of section 1782 discovery. The courts have ruled that a proceeding before a private international arbitral tribunal is eligible for section 1782 discovery; that, categorically, no such discovery is available; that the definition of private arbitral tribunal applies to CIETAC; and that discovery is available by virtue of a party’s parallel pursuit of discovery through foreign civil proceedings. As these cases demonstrate, recent US court decisions have brought no predictability, let alone certainty, to the subject. Congress, on the other hand, could and should amend the statute so as to include private tribunals in the scope of section 1782. This article discusses the case law’s state of disarray; proposes a legislative solution; considers the proposed amendment’s merits; and advocates for Congress to act.

The Waning of the Federal Common Law of Foreign Relations

2020 ◽  
pp. 179-202
Author(s):  
Paul B. Stephan
Keyword(s):  
Foreign Relations ◽  
Common Law ◽  
The United States ◽  
Federal Courts ◽  
Judicial Discretion ◽  
Federal Judiciary ◽  
Federal Authority ◽  
Lower Courts ◽  
Uniform Law ◽  
The Times

This chapter argues that concentrating authority in the federal judiciary to make foreign relations law in the absence of congressional enactments both ignores the capacity of the States to promote encounters with foreign actors and the tendency of the federal courts toward entropy, rather than coherence. The new Fourth Restatement confirms that many important legal doctrines that affect the foreign-relations interests of the United States rest on State law, unless and until the federal political branches enact something else. According to the Fourth Restatement, the existence of plenary federal power over foreign relations does not automatically translate into exclusive federal authority. The Fourth Restatement not only captures the temper of the times, but good functional arguments support its position. The growth of international commerce and connectivity since the 1980s has greatly increased pressure on the States to adopt laws that promote foreign contacts and business. Moreover, it has become apparent that a sprawling and diverse federal judiciary cannot pursue nationally uniform law except under stringent conditions that limit, rather than expand, judicial discretion to make law. The U.S. Supreme Court accordingly sees its task as inducing lawmaking by Congress and the executive. It pursues this goal by barring the lower courts from adopting stopgaps. As a result, the federal common law of foreign relations has shrunk and may disappear.

Forum Non Conveniens and Antisuit Injunctions: An Update

1998 ◽  
Vol 92 (1) ◽  
pp. 41-43
Author(s):  
Andreas F. Lowenfeld
Keyword(s):  
New Jersey ◽  
New South ◽  
Product Liability ◽  
Federal Court ◽  
The United States ◽  
Insurance Companies ◽  
South Wales ◽  
The Supreme Court ◽  
Forum Non Conveniens ◽  
Court Of First Instance

In the April 1997 issue of the Journal, I reported on three cases in which the response to an action brought in the court of one country led not to an answer, but to a countersuit in another country—for an antisuit injunction, a declaration of nonliability or both. One of the cases I discussed arose out of a controversy between an asbestos manufacturer, CSR, and a group of insurance companies, the Cigna Group, that may or may not have been obligated to defend and indemnify the manufacturer in respect of claims in the United States for product liability. The manufacturer brought suit in federal court in New Jersey, raising both contract and antitrust claims. The insurers, as I reported, succeeded in securing an antisuit injunction in the Supreme Court of New South Wales (a court of first instance), and thereafter in defeating a motion by the manufacturer to stay or dismiss, on grounds of forum non conveniens, the insurers’ action seeking a declaration of nonliability. I thought that outcome was wrong: in my view, the Australian court should not have stepped into the controversy, and the insurers should have brought their challenge to the jurisdiction and suitable venue of the New Jersey court in that court.

Differences in Severity and Emotions for Public and Private Face-to-Face and Cyber Victimization Across Six Countries

2017 ◽  
Vol 48 (8) ◽  
pp. 1216-1229 ◽  
Author(s):  
Michelle F. Wright ◽  
Takuya Yanagida ◽  
Ikuko Aoyama ◽  
Anna Ševčíková ◽  
Hana Macháčková ◽  
...  
Keyword(s):  
Emotional Responses ◽  
The United States ◽  
Cyber Victimization ◽  
Public And Private ◽  
The Czech Republic ◽  
Perceived Severity ◽  
Face To Face ◽  
Individualism And Collectivism ◽  
Age Range

The purpose of this study was to examine the role of medium (face-to-face, cyber) and publicity (public, private) in perceptions of severity and emotional responses to victimization among adolescents from China, Cyprus, the Czech Republic, India, Japan, and the United States, while controlling for gender, individualism, and collectivism. There were 3,432 adolescents (age range = 11-15 years, 49% girls) included in this study. They read four hypothetical victimization scenarios, which were manipulated based on the medium and publicity, including public face-to-face victimization, private face-to-face victimization, public cyber victimization, and private cyber victimization. After reading the scenarios, adolescents rated the severity of each scenario and their feelings of anger, sadness, and embarrassment following victimization. Overall, higher severity related to each of the emotional responses. Furthermore, greater perceptions of severity increased adolescents’ feelings of anger, sadness, and embarrassment more often for public victimization and face-to-face victimization than for private victimization and cyber victimization. Some variations were found in these associations based on country of origin. The findings from this study indicate that perceived severity and emotional responses are different in various victimization contexts. Therefore, it is important to consider various victimization contexts.

scholarly journals Ewolucja instytucji sędziów pokoju w Stanach Zjednoczonych

2019 ◽  
Vol 28 (1) ◽  
pp. 39
Author(s):  
Ewa Gmurzyńska
Keyword(s):  
United States ◽  
The United States ◽  
General Tendency ◽  
Court Decisions ◽  
American Democracy ◽  
Modern Times ◽  
Justices Of The Peace ◽  
Pros And Cons ◽  
The U.S

<p class="Normalny1">This article presents a history and development of the institution of justices of the peace in the United States from the beginning of formation of American democracy until modern times. It presents jurisdiction, the scope of the activities and the role of justices of the peace in several states through different periods of times. It includes a thorough discussion concerning pros and cons of justices of the peace in the U.S. legal system and general tendency of declining the institution of justices of the peace in modern times. The article includes also a discussion of the major court decisions concerning justices of the peace.</p>

scholarly journals The Forensic Engineer in State and Federal Court

2014 ◽  
Vol 31 (2) ◽  
Author(s):  
Richard M. Ziernicki
Keyword(s):  
United States ◽  
Legal System ◽  
Expert Witness ◽  
Federal Court ◽  
The United States ◽  
Court System ◽  
Civil Lawsuits ◽  
Forensic Engineering ◽  
And Function

This paper outlines the legal system in the United States, the different types of courts, the differences between criminal and civil law, and the role of forensic engineering experts involved in civil lawsuits. After providing a summary of relevant procedures employed by civil and criminal courts, the paper describes the basic principles and requirements for the selection and work of a forensic engineering expert in both the state and federal court system. This paper outlines the role and function of forensic experts (specifically forensic engineers), in the United States court system. It is not a treatise on the legal system but on the role of experts. The paper presents the requirements typically used in today’s legal system to qualify a forensic engineer as an expert witness and to accept his or her work and opinions. Furthermore, this paper discusses who can be an expert witness, the expert’s report, applicable standards, conducted research, engineering opinions, and final testimony in court — and how those elements fit into the legal system. Lastly, the paper describes the concept of spoliation of evidence.

scholarly journals Notes Procedural Fencing in Retiree Benefits Disputes: Applications of the First-Filed Rule in Federal Courts

2007 ◽  
Vol 69 (1) ◽  
Author(s):  
Julie Vanneman
Keyword(s):  
United States ◽  
West Virginia ◽  
Federal Court ◽  
The United States ◽  
Federal Courts ◽  
Phone Call ◽  
District Court ◽  
Health Coverage ◽  
Southern District ◽  
Maximum Benefit

Basil Chapman retired from ACF Industries, a railroad-car maker, after thirty-eight years of service. In December 2003, he received an unexpected phone call at his West Virginia home from a union representative, who informed him that an ACF executive wanted to speak with him. When they spoke, the executive informed Mr. Chapman that ACF was planning on changing its retirees’ health coverage plan. The ACF plan would now have a lifetime maximum benefit cap on hospital and surgical expenses for each participant and would require retirees to make monthly contributions. According to court papers filed later, Mr. Chapman responded, “We have a contract. You can’t do that.” Then, he said that he would “file in federal court” against ACF. The next business day, ACF filed a declaratory judgment action in the United States District Court for the Eastern District of Missouri asking the court to rule that retiree benefits were not vested and that ACF accordingly could alter benefits unilaterally. On January 26, 2004, Mr. Chapman, other named plaintiffs, and their union sued ACF in the United States District Court for the Southern District of West Virginia.

THE DEVELOPMENT OF THINK TANKS IN THE U.S. IN THE FIRST HALF OF THE TWENTIETH CENTURY: THE POLITICAL AND SOCIOECONOMIC CONTEXT

2020 ◽  
pp. 99-109
Author(s):  
Iana V. Shchetinskaia ◽  
Keyword(s):  
Foreign Relations ◽  
The United States ◽  
Think Tanks ◽  
Rand Corporation ◽  
The Political ◽  
International Crises ◽  
Political Factors ◽  
The Government ◽  
The U.S

Research institutions and specifically think tanks have existed and developed in the United States for more than 100 years. Since their inception, they have changed and evolved in many ways, while expanding their research foci and political impact. Since the 2010s, a few experts in the field have observed that the U.S. policy expertise is now in crisis. To understand current challenges of policy analysis institutions it is important to study them in a historical retrospective. This article explores the political and socioeconomic contexts in which think tanks emerged and developed from 1910 to the 1950-s. It particularly examines the role of international crises, as well as domestic political factors, such as the role of philanthropy organizations, institutional changes in the government, and others. It discusses how these domestic and foreign policy aspects affected the early development of the Carnegie Endowment for the International Peace (1910), the Council on Foreign Relations (1921) and the RAND Corporation (1948).

Indian Civil Servants

2021 ◽  
pp. 26-46
Author(s):  
Mark Knights
Keyword(s):  
Social Norms ◽  
Civil Service ◽  
Civil Servants ◽  
Public And Private ◽  
Private Interests ◽  
The Press

The chapter explores a case study of the 1829 prosecution by the young Charles Trevelyan of Sir Edward Colebrooke, the East India Company’s Resident in Delhi, as a means to illustrate many of the themes covered by the book. The case highlights the distinction between gifts and bribes; social norms that blurred definitions of corruption; the overlap between public and private interests; the reliance of Britons on native agents who could themselves be seen as corrupt; the ‘systems’ of corruption that grew up around powerful officers; the politics of anti-corruption; the role of the press in exposing or vindicating corruption allegations; and the ways in which corruption could be gendered and racialised. Trevelyan went on to help write a report in 1854 which is often seen as the blueprint for the modern civil service, and the interaction of Indian and British affairs is an important theme of the book.

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