Forum Non Conveniens and Foreign Policy: Time for Congressional Intervention?*

a moth is drawn to the light, so is a litigant drawn to the United States. If he can only get his case into their courts, he stands to win a fortune. At no cost to himself; and at no risk of having to pay anything to the other side.1 I. Introduction As Lord Denning's oft-quoted observation illustrates, American courts are often the forum of choice for foreign plaintiffs, who seek to take advantage of our liberal pretrial discovery rules; generous jury awards; and plaintiff-friendly liability laws, which allow both compensatory and punitive damages.2 To alleviate concerns about hearing cases with only a tenuous connection to the chosen jurisdiction, American courts have primarily employed the common law doctrine of forum non conveniens.3 Forum non conveniens allows a court, even though it has both personal jurisdiction over the parties and subject matter jurisdiction over the controversy, to decline to exercise this jurisdiction in favor of a more appropriate forum. In 1981, in Piper Aircraft Co. v. Reyno,4 the United States Supreme Court held that [b]ecause the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference.5 Many states quickly followed suit, modifying their own state law of forum non conveniens to reflect the federal courts' hostility to foreign plaintiffs' choice of forum; however, not all states have adopted the federal standard, and a considerable amount of variance exists in the forum non conveniens doctrines of the fifty states.6 While federal courts sitting in diversity apply federal forum non conveniens law, not the law of the state in which the court sits,7 the Supreme Court has expressly declined to rule on whether federal forum non conveniens law should preempt state law in cases involving foreign plaintiffs. This Note proposes that Congress should enact a federal standard of forum non conveniens that would preempt state forum non conveniens law in transnational cases.8 A legislative standard of forum non conveniens would clarify the federal doctrine and assist in resolving the myriad circuit splits surrounding forum non conveniens in federal court. Additionally, the federal standard would preempt state forum non conveniens law in transnational cases, creating uniformity between the state and federal courts. Not only would a uniform standard limit the endless forum jockeying of both plaintiffs and defendants in these cases,9 it would also allow more federal control over cases that potentially implicate important foreign-relations issues. This Note is divided into five parts. Part II outlines the evolution of the federal doctrine of forum non conveniens and analyzes the application of the current federal standard as it applies to lawsuits filed by foreign plaintiffs. Part III discusses the variance of forum non conveniens doctrine in the state courts and considers the evolution of forum non conveniens in three states that have followed divergent paths in developing their forum non conveniens doctrines: Florida, Texas, and Delaware. Part IV proposes that Congress pass a statute expressly preempting state forum non conveniens law with a federal standard of forum non conveniens in transnational litigation. Part IV also analyzes the policy implications, both positive and negative, of federal preemption of state forum non conveniens doctrine. Part V concludes. II. Forum Non Conveniens in Federal Court A. State or Federal Law? Because forum non conveniens is considered under the Erie doctrine,10 federal courts generally apply federal forum non conveniens law, rather than the forum non conveniens law of the state in which the federal court sits. Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law.11 While the issue has not been definitively decided by the United States Supreme Court, many federal circuits have explicitly decided the Erie issue in favor of applying federal law. …