Publication Date

October 2007


In this essay, I review the fourth edition of Gary Born's International Litigation in United States Courts (ICL), now co-authored by Peter Rutledge. This is a well-established case book/treatise that has influenced the thinking of many lawyers, both in the United States and abroad. In reviewing ICL, I explore some of the recent changes in cross-border litigation in the United States reflected in the fourth edition. Those changes demonstrate that transnational litigation has become a separate field of law in the sense that its independent study has acquired considerable practical importance. But there is more. The changes I review also support my argument that transnational litigation is different from domestic litigation in four distinct ways: (1) it involves widely different laws of other nations; (2) most attorneys, judges, and law reformers lack (adequate) knowledge about differences in those laws; (3) a limited number of transnational actors do possess such knowledge and thus have effective access to foreign litigation systems, legislatures, and executives; and (4) transnational litigation involves foreign nations and thus issues of sovereignty and relative state power. At the same time, there is considerable transnational interconnectedness in the enterprise of making and applying law in this area. Practicing lawyers, judges, and law reformers disregard these features at their peril. That in itself, I suggest, is sufficient reason to subject the distinct problems posed by cross-border proceedings to learned study. Thus, viewed properly, transnational litigation is emerging as a separate field of research. In this new field of research, scholarship in comparative law and international and comparative politics, both theoretical and empirical, will play a central role.

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