Closing Time: You Don't Have to Go Home, But You Can't Stay Here

In a significant trend, U.S. courts are increasingly rejecting cases involving foreign plaintiffs or foreign conduct. This trend was accelerated by the U.S. Supreme Court's decision in Morrison v. National Australia Bank Ltd., which established that U.S. securities laws cannot be applied extraterritorially. Lower courts have extended the presumption against extraterritoriality to other federal and state statutes. In addition, federal and state courts are turning increasingly to the doctrine of forum non conveniens to dismiss litigation claims brought by foreign plaintiffs. This article addresses (a) how the presumption against extraterritoriality has been applied to federal and state statutory law and how it could be applied to regulations and even common law claims, (b) how the presumption and the doctrine of forum non conveniens have changed the legal landscape for foreign and U.S. plaintiffs who seek to recover in the United States for injuries suffered abroad, and (c) how these judge-made limitations have been impacted by larger trends such as limited U.S. judicial resources. The cases discussed share the concern that U.S. courts not become the forum of choice for foreign plaintiffs seeking redress for injuries suffered abroad. Indeed, for such litigants, the increasingly frequent answer is: you don't have to go home, but you can't stay here.