This Article explores the contours of state regulatory power in the foreign injury context. The Supreme Court has long declined to question forum choice in domestic cases, apparently concluding that any other response would be inconsistent with our federalism. But move the injury offshore and the judicial deference to state regulatory supremacy evaporates. Federal judges subject forum choice in transnational tort actions to exacting scrutiny, routinely dismissing such claims on forum non conveniens grounds with no examination of the state interests at stake. This Article first considers whether the offshore nature of a foreign injury diminishes or even extinguishes traditional state regulatory interests in a dispute. In fact, the states retain substantial deterrence interests in such personal injury claims. From a state's perspective, it is often irrelevant whether an out-of-state injury occurs in a sister state or a foreign state. This Article then demonstrates that neither the Constitution nor customary international law supports the federal courts' use of forum non conveniens in these international diversity actions. The federal forum non conveniens doctrine should thus be abandoned as inconsistent with American federalism.
Elizabeth T. Lear, Federalism, Forum Shopping, and the Foreign Injury Paradox, 51 Wm. & Mary L. Rev. 87 (2009), available at http://scholarship.law.ufl.edu/facultypub/280