U.S. Conflict-of-Laws Doctrine and Forum Shopping, International and Domestic (Revisited)
Whitten, Ralph U., Texas International Law Journal
It is a great honor to participate in a conflict-of-laws symposium dedicated to the memory of Friedrich Juenger. During his long and illustrious career, Professor Juenger had occasion to comment on every imaginable issue in conflicts and comparative law. His commentary is rightly considered essential reading for students and scholars of both subjects. His work has attained classical status in the fields in which he labored, and it will surely retain that status in perpetuity. Those of us who have had the opportunity not only to read his rich contributions to the conflicts and comparative law literature, but also to hear him speak on the many subjects of which he was a master, are truly fortunate.
Professor Juenger's extensive contributions to conflicts-of-law literature have made my task in this symposium considerably easier. I have been asked to address the effect of
U.S. conflict-of-laws doctrine on international forum shopping. In 1989, Professor Juenger wrote an article for the Tulane Law Review entitled Forum Shopping, Domestic and International.1 In that article, he surveyed the elements that contribute to international and domestic forum shopping, including conflict-of-laws doctrine, and astutely evaluated the relative effect of each element. The judgment I reach in this article is that his assessment of the effect of conflict-of-laws doctrine on both domestic and international forum shopping was correct in 1989 and remains correct today. Indeed, the information accumulated since Professor Juenger wrote his article tends to confirm the conclusions that he reached. In a nutshell, the conclusion of his article, insofar as the contribution of conflict-of-laws doctrine to forum shopping is concerned, is that choice-of-law doctrine contributes somewhat to the litigants' selection of the location of suit, but that it is more often subordinated to other factors that influence the choice of forum.2 Since Professor Juenger wrote his 1989 article, we have accumulated additional empirical data on the effect of choice-of-law doctrine on forum shopping that supports his conclusion.3 In addition, a significant scholarly consensus agrees that conflict-of-laws doctrine is not the most important factor in forum shopping, especially in the context of domestic litigation.4
Although Professor Juenger's conclusions applied to both domestic and international forum shopping, I will argue that modern U.S. conflict-of-laws doctrine offers somewhat greater incentives to forum shop for U.S. courts over foreign courts than it does to shop between different U.S. courts. Properly understood, I believe that the empirical work done since Professor Juenger's article was published also tends to support this conclusion. Even so, however, it is unclear to what extent international forum shopping is intensified by U.S. conflict-of-laws systems, as opposed to the other factors that make U.S. courts attractive to foreign litigants, because no empirical studies have been done directly on the question of international forum shopping.5
Both the empirical evidence and the existing scholarly consensus developed since Professor Juenger's article indicate that there is a strong tendency under all modem conflicts systems to apply forum law. Therefore, it is also interesting to examine whether forum shopping would be affected if all U.S. states shifted to a lex fori system for determining the applicable law. In effect, a state applying a lex fori system abandons a conflict-of-laws approach to the determination of the applicable law in multistate and multinational cases and simply applies its own law whenever it is constitutional for it to do so.6 An examination of the lex fori systems existing in the United States will, I believe, demonstrate that adoption of a lex fori approach would not appreciably affect forum shopping at the interstate or international level. To the extent that conflict-of-laws methodology is designed to eliminate forum shopping, therefore, a reform of U. …