Parochial Procedure

Maggie Gardner 

Harvard Law School

August 20, 2015

Abstract:

Scholars criticize the federal courts for being too parochial when it comes to transnational litigation, either by pushing away cases that are too “foreign” or by refusing to apply foreign or international law. According to the parochial critique, this U.S.-centrism is undermining the reciprocity on which the system of private international law depends, generating friction with allies, regulatory conflict, and access-to-justice gaps. This Article takes the parochial critique as a starting point, but it challenges the critique’s assumption that the fault lies with U.S. judges. It argues instead that parochial procedure can develop even in the absence of parochial judges because the aggregated behavior of a group can differ from the preferences of its individual members. Drawing on insights from behavioral psychology and institutional analysis, the Article identifies how constrained decisionmaking in a complex legal and factual context like transnational litigation can generate repeated errors that are then amplified through the path dependence of the common law. Even judges with positive conceptions of international law and transnational order will find themselves, in applying these doctrines, consistently favoring U.S. litigants over foreigners and U.S. law over foreign or international law. To illustrate, the Article traces the evolution of four procedural doctrines: discovery of foreign evidence, forum non conveniens, service of process abroad, and the recognition of foreign judgments. The doctrinal pressures outlined here can explain why the first two are often criticized as parochial while the latter two are not. And if that account is at least plausible, it supports the primary claim of the Article: that the parochialism of our courts does not necessarily reflect the personal prejudices of our judges. If so, then avoiding the costs of parochialism will require structural, not just personal, solutions.

Number of Pages in PDF File: 54

Gardner, Maggie, Parochial Procedure (August 20, 2015). Disponível em: http://ssrn.com/abstract=2651453. Acesso em 22 set. 2015.