Professor Pamela Bookman was cited by the Supreme Court of Oregon last month. In Espinoza v. Evergreen Helicopter, 359 Or. 63 (2016), Peruvian plaintiffs filed a wrongful death action against an Oregon helicopter company over a fatal crash in Peru. The defendants argued that the case should be heard in Peru instead of in Oregon.
The issue before the Court was whether and how Oregon courts may apply the doctrine of forum non conveniens. Forum non conveniens defines under what circumstances courts may decline jurisdiction over properly brought cases when a different court might provide an alternative forum. Professor Bookman’s scholarship characterizes U.S. courts’ use of the doctrine as unfairly disadvantaging foreign plaintiffs. She identifies this development as part of a larger trend of courts’ increasing efforts to avoid hearing transnational litigation.
In Espinoza, the plaintiffs raised concerns that their choice to litigate in Oregon would not receive deference because of their status as foreigners. Appearing to share plaintiffs’ concerns, the Oregon court cited Bookman’s work as exemplary of criticism that forum non conveniens is, at best, “applied inconsistently and, at worst, applied too often and for illegitimate and even discriminatory reasons.” In holding that under Oregon law, courts must show equal deference to both local and foreign plaintiffs, the Supreme Court of Oregon aligned its law with the reasoning and conclusions in Bookman’s work and diverged from the practice of the U.S. Supreme Court.
In Litigation Isolationism, 67 Stan. L. Rev. 1081 (2015), Bookman identifies the doctrinal strategies U.S. courts use to discourage transnational litigation, the reasons behind such efforts, and the ways in which application of these strategies actually undermines U.S. interests. Bookman traces the evolution of U.S. Supreme Court doctrine regarding forum non conveniens from its original emphasis that courts should “rarely” decline jurisdiction to its current state where, studies suggest, courts rely on forum non conveniens to dismiss complaints by foreign plaintiffs “more [often] than not.” The article proposes a number of suggestions for how courts can limit the growth of litigation isolationism, including by rejecting the U.S. Supreme Court’s assumption that foreign plaintiffs’ forum choices are unworthy of deference.
Professor Bookman teaches Contracts and Civil Procedure, and is a noted authority on issues in transnational litigation. Prior to joining academia, she served as Counsel in the New York office of Wilmer Cutler Pickering Hale & Dorr LLP, where she represented clients in complex commercial business disputes with a focus on transnational litigation and maintained an active pro bono practice.