Domestic Courts and Global Governance: Transnational Law in Action.

Domestic courts are global governors. For better or for worse, they are increasingly involved in addressing the global challenges of our day, from climate change to human rights violations, from terrorism to transnational business transactions and their negative externalities. Yet international relations scholars virtually ignore domestic courts, and judicial decisionmaking scholars focus primarily on domestic policy issues. Legal scholars generally emphasize doctrinal analysis of the law of transnational problems—"transnational law"—but devote relatively little effort to understanding how domestic courts actually apply this law in transnational litigation. As a result, we know very little about how domestic courts behave as global governors and why they govern the way they do.To improve our understanding of domestic courts and global governance, this paper asks: How often and under what circumstances do U.S. district courts defer to foreign authority to govern transnational activity rather than asserting domestic authority? Drawing on private international law scholarship and theories of international relations, judicial behavior, and bounded rationality, it develops a series of hypotheses about the legal and political factors that influence judicial allocation of governance authority. It then tests these hypotheses using statistical and content analysis of an original dataset of 400 U.S. district court decisions in two transnational litigation settings: the allocation of adjudicative authority under the forum non conveniens doctrine, and the allocation of prescriptive authority under various choice-of-law methods. The findings suggest that U.S. judges frequently defer, that transnational law strongly influences these decisions, but that several political factors also matter. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]