Functionalism is historically one of the most influential approaches to comparative law, and perhaps also the most controversial. This Article argues that legal origins scholarship – though produced primarily by economists, not legal scholars – has a close affinity with the functionalist approach to comparative law. As such, legal origins scholarship puts into relief the promises and perils, the strengths and weaknesses, of functionalism. Legal origins scholarship therefore deserves the careful and critical attention of comparative legal scholars as they deliberate over the place of functionalism in their field’s future. This Article, contributed to a symposium on “Evaluating Legal Origins Theory,” draws out some of the implications of legal origins scholarship for the functionalism debate. It does so by focusing on three characteristics shared by legal origins scholarship and functionalist comparative legal scholarship: a quest for better legal solutions to societal problems; a need to rely on causal inference; and a need to consider the cultural, economic, political, and social context within which legal institutions exist. Among other things, the Article proposes a refined concept of “function” that distinguishes between the intended functions and actual consequences of legal institutions. The Article concludes that a new functionalism that combines a qualified embrace of the “better solutions” impulse with the refined concept of function, and that takes causal inference and contextual factors seriously, would have the potential to make valuable contributions to our understanding of law and to the improvement of legal institutions.

This article explores the tension between the foreign state immunity doctrine and the right to court access and it proposes a strategy for mitigating that tension. Part I explains the origins, evolution, and justifications of the foreign state immunity doctrine, according to which states are generally immune from suit in other states’ courts. Part II traces the more recent emergence of the right to court access, according to which a person is entitled to a hearing by an independent court for the determination of a legal claim. The right to court access, whether or not it has become a legally binding rule of international law, is widely accepted and increasingly legalized. Therefore, one important criterion for normative evaluation of the foreign state immunity doctrine is its impact on court access. Part III uses a combination of doctrinal and empirical analysis to elucidate the tension between these two doctrines. This part shows that beyond the truism that the foreign state immunity doctrine can deny court access in the forum state regardless of the merits, it can also preclude court access in third states, even when there would be no court access in the foreign state. It then uses statistical analysis of an original dataset of more than 350 foreign state immunity decisions by U.S. district court judges to shed light on how the court access consequences of the foreign state immunity doctrine play out in real-world litigation. U.S. district courts frequently deny court access on foreign state immunity grounds; both foreign nationals and U.S. nationals, and both individuals and businesses, are affected; and the likelihood of meaningful court access in the foreign state is often low when court access is denied in the United States. Part IV argues that so far international and regional courts have done more to exacerbate than to mitigate the tension between the foreign state immunity doctrine and the right to court access. It therefore develops a strategy for mitigating the impact of the foreign state immunity doctrine on court access — one that takes seriously both the underlying functions of foreign state immunity and the importance of court access.

International law, as it appears in the pages of the American Journal of International Law, is largely public international law. Conflict of laws is usually considered to be either outside international law or part of private international law. This symposium in AJIL Unbound, with its focus on the Restatement of the Law (Third) Conflict of Laws, is therefore noteworthy. It also is welcome, because there is much to gain from thinking about conflict of laws and international law together.

This Article uses empirical analysis to provide a new understanding of transnational litigation in U.S. courts. According to conventional wisdom, the United States has a forum shopping system with two features that encourage plaintiffs to file claims in U.S. courts, even when those claims involve foreign parties or foreign activity: a permissive approach to personal jurisdiction, giving plaintiffs broad court access, and a strong tendency of U.S. judges to apply plaintiff-favoring domestic law. This forum shopping system purportedly contributes to a rising tide of transnational litigation in the United States. Scholars and interest groups have therefore proposed new anti-forum shopping measures aimed at curtailing transnational litigation in U.S. courts. This Article shows that the forum shopping system has evolved and that it no longer encourages plaintiffs to pursue transnational claims in U.S. courts to the extent it supposedly once did. It also presents empirical evidence that transnational litigation in the United States may have actually decreased, not increased, over the last two decades. The analysis suggests that new anti-forum shopping measures may not be as urgent or necessary as their advocates claim. If adopted, such measures could unduly limit access to justice for both American and foreign citizens who, in our era of globalization, are increasingly affected by transnational activity.