William S. Dodge, University of California, Davis School of Law, Maggie Gardner, Cornell Law School, and Christopher A. Whytock, University of California, Irvine, School of Law, have published The Many State Doctrines of Forum Non Conveniens, which is forthcoming in the Duke Law Journal:
Forum non conveniens is not as “ancient” or as monolithic as U.S. courts often assume. The doctrine, which permits judges to decline to hear cases they believe would more appropriately be heard in another sovereign’s courts, is often used today by both state and federal courts to dismiss claims brought by against local businesses. The Supreme Court, however, only adopted a general doctrine of forum non conveniens in 1947; the doctrine’s “deep roots in the common law” are thought instead to be planted in the states.--Dan Ernst
This Article tests that account by surveying the forum non conveniens doctrines of all fifty states and the District of Columbia. What we found should change how judges, practitioners, and scholars view the doctrine. First, forum non conveniens in the states does not have a “long history”—it is a twentieth-century phenomenon. Second, before the 1950s, no states permitted dismissal of claims brought against local defendants. Third, state experience with forum non conveniens has been and continues to be highly variable. Most states adopted a forum non conveniens doctrine only after the Supreme Court did; many initially rejected it; and half a dozen still prohibit its use in cases involving in-state plaintiffs or in-state causes of action. Idaho has not recognized the doctrine at all.
In addition to these doctrinal lessons, the states’ experience with forum non conveniens provides a useful case study for examining what we term “procedural federalism,” meaning the interactions between state and federal institutions that affect procedural development.
Procedural federalism reminds us that the procedure we have is not necessarily the “best” procedure we could conceive, while drawing our attention to pockets of divergence that may offer promising reforms. More broadly, it suggests a different approach to history than the one currently ascendant in federal courts and commentary. The iterative nature of procedural federalism makes clear that doctrines like forum non conveniens do not have perfect pasts, needing only to be rediscovered to be understood properly. Rather, procedural history is useful because it can help us understand how we ended up with the doctrines we have today, in order to better evaluate where we should go next.
