Article by John F. Coyle
U.S. courts have long recognized that certain civil cases should not be litigated in the United States. Even when a U.S. court has jurisdiction, a case may still be dismissed for forum non conveniens if the judge concludes that the case would be more appropriately heard in the courts of another country. This inquiry typically requires judges to consider a range of factors—including travel costs and whether the plaintiff will receive a fair hearing in the foreign forum—to decide whether the case should be dismissed. In some cases, however, plaintiffs advance a chilling argument as to why the case must remain in the United States. They argue that they will suffer death or bodily harm if they are required to bring a lawsuit in a particular foreign country.
This Article offers guidance to judges on how best to engage with this argument. It draws upon an original dataset of sixty-one cases where the courts addressed the issue of dangerousness. Using these cases, the Article provides a quantitative account of which countries are most often alleged to be dangerous and when these allegations are most likely to succeed in persuading U.S. courts to retain jurisdiction. It then draws upon this same dataset to provide a qualitative account of the doctrinal rules that U.S. courts use to assess claims of dangerousness. Among other things, the Article shows that U.S. courts are far more willing to credit allegations of danger in human rights cases than in cases where the plaintiff has previously agreed to litigate the case in a foreign court. The Article concludes by offering concrete suggestions for how the courts should analyze the issue of dangerousness in forum non conveniens cases going forward.
About the Author
John F. Coyle, Reef C. Ivey II Distinguished Professor of Law, University of North Carolina at Chapel Hill.
Citation
100 Tul. L. Rev. 77