The federal forum non conveniens regime has many flaws; its most serious, however, is its lack of constitutional support. Founded upon the inherent authority of Article III, the forum non conveniens doctrine is an outlier, residing in the area over which Congress retains plenary control. The Court has long treated the forum non conveniens dismissal power as the norm against which Congress legislates. This Article argues that the time has come to reconsider this interpretive approach. In the case of peripheral inherent power rules like forum non conveniens, the prevailing presumption should be reversed. The Court, rather than Congress, should bear the burden of ensuring that judicially-crafted doctrines are consistent with legislative policy goals.
Applying this more deferential analysis exposes significant friction between congressional regulatory decisions and the Court's forum non conveniens regime. First, the comprehensive congressional venue scheme already provides for the run-of-the-mill transnational case to which the forum non conveniens doctrine is routinely applied. Second, countless federal statutes regulate extraterritorial conduct; when a federal court declines on forum non conveniens grounds to adjudicate a federal question case, it rides roughshod over the congressional decision that the conduct at issue deserves federal attention. Third, the doctrine is at odds with the Rules Enabling Act on two fronts. By eschewing the rulemaking process set forth in the Act, the Court evades the congressional oversight envisioned by the legislation. Similarly, the Court has failed to respect the division of law making authority envisioned in Section 2072(b) of the Act. The substance/procedure line provides a good proxy for congressional permission to regulate. The forum non conveniens regime steps over that line. Lastly, proper application of the Rules of Decision Act suggests that the federal courts are mistaken in failing to apply some subset of state forum non conveniens rules in federal diversity actions. But that conclusion brings us full circle. Once we recognize the inherent authority does not support the forum non conveniens dismissal, the Rules of Decision Act problem evaporates. The congressional court access regime occupies the field rendering conflicting state rules irrelevant.
Elizabeth T. Lear, Congress, the Federal Courts, and Forum Non Conveniens: Friction on the Frontier of the Inherent Power, 91 Iowa L. Rev. 1147 (2006), available at http://scholarship.law.ufl.edu/facultypub/279