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Foreign regulators exert a powerful and deeply underestimated influence on American complex litigation. From the French Ministry of Health and the United Kingdom's National Health Services, to the Japanese Fair Trade Commission and the European Commission, foreign agencies have participated in some of the most important cases in the last two decades. The intersections between American litigation and foreign regulation range from plaintiff discovery requests of documents produced by or to foreign regulators, to coattail class actions against multinationals triggered by enforcement penalties abroad, all the way to foreign agency letters submitted to U.S. courts expressing an interest in a case. Indeed, dozens upon dozens of the most important multidistrict cases in the country--covering over 100,000 claims--have been influenced by foreign regulatory documents or enforcement actions. In this manner, litigation is importing foreign regulatory zeal to the United States. Yet few American legal actors know that foreign regulation affects domestic cases and even judges are unsure whether this practice is appropriate. This Article presents a systematic study of the new relationship between foreign regulation and American litigation. The cross-border spread of litigation ideas sits at the center of broader debates about complex litigation, the regulatory role of multidistrict litigation, the recent trend of litigation isolationism, and the expanding role of discovery. The Article argues that litigation can import and domesticate foreign regulations, allowing private litigants to audit the work of captured domestic agencies. For instance, litigators can measure the work of the FDA against health regulators in France, or the work of the FTC against regulators in Germany. Litigation can also push U.S. law to match foreign regulation, promoting a rough harmonization across borders, coherence, and convergence. While the litigation-led use of foreign regulation promises a wealth of benefits for U.S. law, it has not been sufficiently recognized, nudged forward, or appreciated. The Article thus seeks to provide a solid theoretical footing for the incorporation of foreign regulations and argues that an understanding of litigation-led globalization clarifies scholarly debates in a variety of literatures. After this analysis, the Article also argues that courts should invite American regulators to help them decide whether to welcome or reject this foreign influence. [ABSTRACT FROM AUTHOR]

At the turn of the twenty-first century, the country entered its third era of judicial federalism. That era is defined by federal judicial expansion into areas of statecourt power and federal monopolization of large and complex litigation. These changes, in turn, have coincided with the decay of state courts. Whether measured by funding, delays, or docket loads, state courts—the true workhorses of the American legal system—have declined relative to federal courts. Indeed, over the last decade, state chief justices have complained that state courts are “financially bankrupt,” “at ‘the tipping point of dysfunction,’” and “on the edge of an abyss.” This state-court decay could not come at a worse time—due to federal efforts to circumscribe access to court, there have been growing calls for a turn to state courts. But that turn cannot work without vibrant and well-funded state judiciaries. Thus, federal expansion and state-court decay represent the most fundamental developments in judicial federalism. This Article explores the rise of federal courts and apparent fall of state courts and analyzes the relationship between these two developments. At its core, the Article makes the original claim that federal expansion may be contributing to the decay of state courts and has reinforced a plaintiff-defendant divergence between the two systems. In laying the groundwork for that argument, the Article offers three contributions. First, it provides the first historical periodization of judicial federalism, oriented around three broad eras with distinctive philosophies toward the federal-state allocation of cases. The Article presents significant evidence that in the 1980s and 1990s the country entered a new era of judicial federalism when, for the first time in the nation’s history, the federal government began to aggressively appropriate statecourt litigation. Second, the bulk of the Article draws on a wealth of political economy literature and empirical data to step back and evaluate the potentially positive and negative effects of federal-court expansion. The third era has allowed institutional litigants to opt out of state courts, leading to negative distributional consequences for small-stakes litigants. For example, when federal courts siphon large litigants from state court, state legislatures lose existing political pressure to fund those courts, potentially leading to deteriorating judiciaries that ultimately affect family courts, employees, and consumers. This state-to-federal emigration of institutional litigants may also explain one of the most puzzling recent developments in civil procedure: while federal courts have embraced prodefendant procedural rules in the class action, personal jurisdiction, and pleading contexts, state courts remain relatively proplaintiff, leading to a clear divergence between the two systems and a host of normative concerns. Finally, after laying out these consequences, the Article briefly sketches a few potential remedies to improve state courts, including federal funding for state judiciaries and a push for more state complex litigation courts. [ABSTRACT FROM AUTHOR]

No feature of U.S. law has rankled foreign nations more than the supposed "legal imperialism" of discovery requests for information located abroad to be used in U.S. litigation or investigations. China, France, Germany, and Switzerland have threatened the stability of bilateral relations with the United States due to overbroad transnational discovery requests. For three decades, when faced with concerns of international comity in the discovery context, U.S. courts ruled overwhelmingly in favor of discovery through the Federal Rules, rendering international comity a dead concept. Recent case law, however, shows that this paradigm is coming to an end. In a trilogy of cases decided, respectively, by the United States Supreme Court (Daimler), the Second Circuit (Gucci), and the New York State Court of Appeals (Motorola), each court rejected attempts by plaintiffs to subject foreign entities to jurisdiction in the United States or otherwise impose on them overbroad duties, including those in conflict with foreign laws. Prominently relying on "international comity," each decision limited the reach of U.S. courts and emphasized the need for harmony in the international legal system. These three cases are groundbreaking and should lead to changes in U.S. transnational discovery. The Article analyzes this recent revival of international comity. First, it explores the history of international comity and its interaction with broad U.S. discovery rules. Second, it briefly reviews the Supreme Court case Aérospatiale, which dealt a blow to international comity. Third, this Article analyzes how Daimler, Gucci, and Motorola relied on comity to reach their holdings and argues that international comity has been revived in the context of discovery. Finally, this Article takes a normative approach and argues that U.S. courts should engage in a qualitative limitation of the kinds of U.S. interests that are significant in the transnational discovery context. [ABSTRACT FROM AUTHOR]