Federal judges have too many options for deferring to foreign courts, none of them particularly good. Not only have judges developed at least five different bases for declining to hear transnational cases, but the use of these bases also varies significantly from circuit to circuit. The courts of appeals have split over whether to recognize foreign relations abstention or prudential exhaustion, and they have developed different tests for assessing foreign parallel proceedings. Even with forum non conveniens, where the Supreme Court has provided clearer guidance, circuit practice has diverged. Thus in two recent transnational tort cases stemming from the Fukushima nuclear disaster in Japan, a district court in the First Circuit dismissed on a discretionary basis that a district court in the Ninth Circuit had rejected, while the district court in the Ninth Circuit dismissed on a discretionary basis not yet recognized by the First Circuit.
Volume 169Issue 8 2021 Article