Litigation Isolationism

Over the past two decades, U.S. courts have pursued a studied avoidance of transnational litigation. The resulting litigation isolationism appears to be driven by courts’ desire to promote separation of powers, international comity, and the interests of defendants. This Article demonstrates, however, that this new kind of “avoidance” in fact frequently undermines not only these values but also other significant U.S. interests by continuing to interfere with foreign relations and driving plaintiffs to sue in foreign courts. This Article offers four contributions: First, it focuses the conversation about transnational litigation on those doctrines designed to avoid it—that is, doctrines that permit or require courts to dismiss a case based on its “foreignness.” Doing so helps to identify the particular concerns justifying this kind of avoidance and to evaluate them on their own terms. Second, the Article presents evidence of emerging foreign trends that increasingly (and surprisingly) permit traditionally American, plaintiff-friendly procedures, including higher damages awards, aggregate litigation, and third-party litigation financing. Third, the Article demonstrates that, particularly in light of these foreign trends, avoidance has failed to achieve its stated goals, and in many instances has undermined them. Finally, the Article suggests ways to refine avoidance doctrines to address these unintended consequences. Its more basic and urgent task, however, is to identify the growing phenomenon of litigation isolationism, highlight its perversities, and caution against its further expansion

The Unsung Virtues of Global Forum Shopping

Forum shopping gets a bad name. This is even more true in the context of transnational litigation. The term is associated with unprincipled gamesmanship and undeserved victories. Courts therefore often seek to thwart the practice. But in recent years, exaggerated perceptions of the “evils” of forum shopping among courts in different countries have led U.S. courts to impose high barriers to global forum shopping. These extreme measures prevent global forum shopping from serving three unappreciated functions: protecting access to justice, promoting private regulatory enforcement, and fostering legal reform. This Article challenges common perceptions about global forum shopping that have supported recent doctrinal developments. It traces the history of concerns about global forum shopping and distinguishes between domestic and global forum shopping to discern the core objections to the practice. It then identifies these unappreciated virtues of global forum shopping and suggests balanced ways for courts to protect them

Testimony on the Equal Pay Act [H. 1733/S. 983]

Testimony on the Equal Pay Act [H. 1733/S. 983] by Ann Bookman, PhD, delivered at the Massachusetts State House, 2015 July 21

Revisiting \u3cem\u3eThe Ox-Bow Incident\u3c/em\u3e: The Almost Forgotten Western Classic About the Lynching of Three Innocent Men is as Relevant as Ever

The concept of lynching, several hundred years old and unclear in its origins, has never really left the lexicon. The word itself, however, has taken on different meanings over the years, from a mob’s taking the law into its own hands, to an organized utilization of racial violence as a means of societal control and intimidation; and finally to the more casual and defensive use of the word (“high tech lynching”) by current Supreme Court justices Thomas and Kavanaugh and others after being questioned about their past behaviors. Many academics have opined that the modern system of capital punishment is an offspring of lynching. This essay examines that idea through the parallel lenses of the classic and almost forgotten western novel The Ox-Bow Incident, and the travails of Henry Lee McCollum, a low-functioning man who spent more than three decades in a North Carolina prison and came close to execution. In the simple and direct language of the Old West, The Ox-Bow Incident dissects a lynching from its nebulous beginnings to its predictable denouement. The McCollum case has virtually all of the same attributes as its fictional counterpart, and its outcome is just as predictable. Whether in art or life, the root causes of injustice turn out to be the same

China\u27s Proposed Anti-Monopoly Law

Well-designed competition policy can promote consumer welfare and economic growth. Poorly designed policy can retard both. As China’s importance in the world economy grows steadily each year, so does the importance of its competition policy. Because China is a low-cost manufacturing center and home to an enormous market, foreign companies have invested in China extensively, including through joint ventures with Chinese companies that involve sharing the foreign companies’ intellectual property rights with their Chinese partners