This Article proposes a new approach to the doctrine of forum non conveniens. Traditionally, forum non conveniens has been considered a non-merits decision that does not require a prior determination of subject matter jurisdiction. This Article argues that this approach significantly disadvantages foreign plaintiffs who bring human rights claims under the Alien Tort Statute because it quickly and automatically dismisses such cases without considering both the U.S. interest in adjudicating human rights cases, as well as the gravity of human rights violations. Both these considerations should trump the more mechanical analysis conducted under the traditional forum non conveniens model. The central thesis is that for cases involving human rights violations brought under the Alien Tort Statute, courts should decide subject matter jurisdiction before performing a forum non conveniens review.
This Article engages an important discussion of the role of federal civil procedure in adjudicating human rights violations. If judges determine subject matter jurisdiction before forum non conveniens, the number of human rights cases heard in U.S. federal courts would increase notably. This would allow the U.S. to play a larger role in shaping international human rights norms and enforcement. It would also allow for greater protection of jus cogens norms (fundamental, non-derogable human rights) in states where domestic courts do not effectively protect these rights: foreign plaintiffs often utilize the Alien Tort Statute to bring claims because the judicial system in their home country is either a corrupt or inadequate forum. This Article situates itself in the larger legal scholarship about the role of forum non conveniens in human rights cases brought under the Alien Tort Statute, but breaks new ground by proposing revisions to the doctrine that emphasize the importance of subject matter jurisdiction.
Available at: http://works.bepress.com/lynn_ta/1/