Brooklyn Law Review


Geoffrey Sant


Perhaps the strangest legal phenomenon of the past decade is the extraordinary surge in U.S. courts ordering individuals and companies to violate foreign law. The very concept of court-ordered law-breaking is a strange one. Indeed, until fairly recently, it was virtually unheard of for a U.S. court to order the violation of foreign laws. Over the past decade, however, this phenomenon has increased at an exponential rate. A full 60% of all instances of courts ordering the violation of foreign laws have occurred within the past five years. What happened? In its 1987 Aérospatiale decision, the Supreme Court set forth a five-factor test that courts use when determining whether or not to order the violation of foreign law. Four of the five factors in this test require courts to make subjective judgments (for example, whether the information sought is “important”). But are U.S. courts actually able to carry out this analysis without being biased towards U.S. discovery? The five-Justice majority and four-Justice dissent disagreed sharply on this question, with the dissent warning that trial court decisions would be riddled with “pro-forum bias.” This paper is the first to analyze statistically whether the prediction of pro-forum bias, made by the four-Justice Aérospatiale dissent and by numerous commentators, has come true. The results are stark.