Duplicative Foreign Litigation

What should a court do when a lawsuit involving the same parties and the same issues is already pending in the court of another country? With the growth of transnational litigation, the issue of reactive, duplicative proceedings—and the waste inherent in such duplication—becomes a more common problem. The future does not promise change. In a modern, globalized world, litigants are increasingly tempted to forum shop among countries to find courts and law more favorably inclined to them than their opponents. The federal courts, however, do not yet have a coherent response to the problem. They apply at least three different approaches when deciding whether to stay or dismiss U.S. litigation in the face of a first-filed foreign proceeding. All three approaches, however, are undertheorized, fail to account for the costs of duplicative actions, and uncritically assume that domestic theory applies with equal force in the international context. Relying on domestic abstention principles, courts routinely refuse to stay duplicative actions believing that doing so would constitute an abdication of their “unflagging obligation” to exercise jurisdiction. The academic community in turn has yet to give the issue sustained attention, and a dearth of scholarship addresses the problem. This Article offers a different way of thinking about the problem of duplicative foreign litigation. After describing the shortcomings of current approaches, it argues that when courts consider stay requests they must account for the breadth of their increasingly extraterritorial jurisdictional assertions. The Article concludes that courts should adopt a modified lis pendens principle and reverse the current presumption. Absent exceptional circumstances, courts should usually stay duplicative litigation so long as the party seeking the stay can establish that the first-filed foreign action has jurisdiction under U.S. jurisdictional principles. This approach—pragmatic in its orientation, yet also more theoretically coherent than current law—would help avoid the wastes inherent in duplicative litigation, and would better serve long-term U.S. interests.


Austen L. Parrish*
What should a court do when a lawsuit involving the same parties and the same issues is already pending in the court of another country? With the growth of transnational litigation, the issue of reactive, duplicative proceedings-and the waste inherent in such duplication-becomes a more common problem. The future does not promise change. In a modem, globalized world, litigants are increasingly tempted to forum shop among countries to find courts and law more favorably inclined to them than their opponents.
The federal courts, however, do not yet have a coherent response to the problem. They apply at least three different approaches when deciding whether to stay or dismiss U.S. litigation in the face of a first-filed foreign proceeding. All three approaches, however, are undertheorized, fail to account for the costs of duplicative actions, and uncritically assume that domestic theory applies with equal force in the international context. Relying on domestic abstention principles, courts routinely refuse to stay duplicative actions believing that doing so would constitute an abdication of their "unflagging obligation" to exercise jurisdiction. The academic community in turn has yet to give the issue sustained attention, and a dearth of scholarship addresses the problem. This Article offers a different way of thinking about the problem of duplicative foreign litigation. After describing the shortcomings of current approaches, it argues that when courts consider stay requests they must account for the breadth of their increasingly extraterritorial jurisdictional assertions. The Article concludes that courts should adopt a modified lis pendens principle and reverse the current presumption. Absent exceptional circumstances, courts should usually stay duplicative litigation so long as the party seeking the stay can establish that the first-filed foreign action has jurisdiction under U.S. jurisdictional principles. This approach-pragmatic in its orientation, yet also more theoretically coherent than current law-would help avoid the wastes inherent in duplicative litigation, and would better serve long-term U.S. interests.

Introduction
In recent years, the idea of transnational law as a solution to international challenges has captivated legal academia. 1 Whether because of globalization, 2 changes in law and theory, 3 or other reasons, 4 INT'L L.J. 79, 80 (1999) ("Parallel litigation occurs increasingly often today as a result of an unprecedented expansion of transnational economic activities and a resulting increase in international business disputes."); cf. Andre Nollkaemper, Cluster Litigation in Cases of Transboundary Harm, in TRANSBOUNDARY ENVIRONMENTAL POLLUTION: THE CASE OF CHINA (Edward Elgar ed., 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1091389 (describing the increased use of environmental "cluster litigation"-parallel or serial litigation of overlapping or closely related claims before multiple courts); Gilles Cuniberti, Parallel Litigation and Foreign Investment Dispute Settlement, 21 ICSID REV. FOREIGN INVESTMENT L.J. 381, 381 (2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstractid=1045181 (describing trends and explaining that "parallel litigation has become a recurrent issue in foreign investment disputes"); Cortelyou Kenney, Comment, Disaster in the Amazon: Dodging "Boomerang Suits" in Transnational Human Rights Litigation, 97 CAL. L. REV. 857 (2009) (describing the increase of parallel litigation in the human rights context as a way to subvert foreign proceedings).
9 Some have described the U.S.'s three largest exports as "'rock music, blue jeans, and United States law."' United States v. Verdugo-Urquidez, 494 U.S. 259, 281 (1990) (Brennan, J., dissenting) (quoting V. Rock Grundman, The New Imperialism: The Extraterritorial Application of United States Law, 14 INT'L LAW. 257, 257 (1980)). Despite its salience," few commentators have addressed the issue of reactive, 12 duplicative foreign proceedings. The treatment of these kinds of parallel proceedings "remains one of the most unsettled areas of the law of federal jurisdiction," ' 13 and a dearth of scholarship explores how a court should proceed if the same case is already pending in a foreign forum. Lower court decisions are muddled, as judges apply at least three distinct approaches that are undertheorized.1 4 The Supreme Court of the United States, for its part, has never spoken directly to the issue and has not rescued the lower courts from their confusion. 15 The United States is not alone in its uncertainty. Other . 12 Reactive litigation refers to a countersuit that the first action's defendant files against the first action's plaintiff. In contrast, repetitive litigation is when a plaintiff files two or more parallel suits against the same defendant. This Article focuses on reactive litigation only. See Allan D. Vestal, Reactive Litigation, 47 IOWA L. REV. 11 (1961)  14 As described in Part I.B, infra, the three approaches are often referred to as the Colorado River, Landis, and international abstention approaches. See infra notes 46-69; see also Goldhammer v. Dunkin' Donuts, Inc., 59 F. Supp. 2d 248, 252 (D. Mass. 1999) (noting disagreement among federal courts as to how to approach requests to dismiss a proceeding pending the outcome of a parallel proceeding in a foreign court). 15 See Calamita, supra note 13, at 603; Linda S. Mullenix, A Branch Too Far: Pruning the countries struggle with these difficult issues too. 16 Last year, the Supreme Court of Canada decided what scholars predicted would be a seminal case, 17 only for the court to issue a decision that revealed the same doctrinal confusion found in U.S. court decisions. 1 8 In the United States, ingrained assumptions contribute to the difficulty in responding to duplicative litigation. For one, much of the existing analysis of foreign parallel proceedings is drawn from domestic theory, without any serious consideration as to whether the domestic can be so easily grafted onto the international, or whether the two situations are comparable at all. 19 A form of American exceptional-Abstention Doctrine, 75 GEO. L.J. 99, 103-04 (1986) (arguing that "[riather than providing the lower courts with meaningful criteria for principled restraint, the Supreme Court has supplied an empty conglomeration of talismanic phrases and incantations"); Martine Stuckelberg ism is also often at play. 20 Some issues are too important, or so it is believed, to be left to foreign courts. Lastly, the question of what to do with parallel proceedings conventionally has had an awkward relationship with jurisdictional doctrines. The existence of jurisdictionand the federal courts' "virtually unflagging obligation" to exercise it21--is touted as the primary reason why even duplicative actions must proceed unhindered. 22 This Article takes a different tack. After critiquing and describing the limitations of current doctrine, it argues that when courts address foreign duplicative litigation they must account for the breadth of their extraterritorial jurisdictional assertions. In recent decades, jurisdictional doctrines have expanded dramatically not through legislative enactment, but by virtue of judge-made rules that have untethered jurisdiction, choice of law, and related doctrines from their original territorial moorings. 23 Since a dramatic re-envisioning of these doctrines seems unlikely, staying duplicative litigation becomes a key means for courts to accommodate and cabin the excesses of modern jurisdictional law and to avoid overburdening the judiciary. 24 In short, to the extent that U.S. courts continue to exercise jurisdiction broadly (perhaps, in some contexts, exorbitantly) a greater willingness 22 For perhaps the most well-known article arguing that federal courts violate separation of powers when they decline to exercise jurisdiction in the face of parallel state proceedings, see to stay reactive domestic litigation in the face of first-filed foreign proceedings is prudent.
Viewing abstention as a way to temper extraterritorial jurisdiction, this Article concludes by offering a different approach to duplicative foreign proceedings. Courts should embrace a modified lis alibi pendens principle 25 and reverse the prevailing presumption, which is heavily weighted in favor of allowing cases to continue even when duplicative foreign litigation is ongoing. Departing from current practice, courts should usually stay domestic proceedings when a first-filed foreign action exists, so long as the foreign court would have jurisdiction over the action under U.S. jurisdictional principles. 2 6 Creating a rough symmetry between stay decisions and when a foreign court is considered a reasonable and appropriate forum under U.S. jurisdictional rules would create a fairer system for litigants, reduce the waste of unnecessary duplication, and, on balance, better serve long-term U.S. interests.

I. The Problem
Any proposal for addressing duplicative foreign litigation must account for the costs that parallel proceedings impose. In the literature these costs are often downplayed, while the three primary doctrinal approaches to parallel proceedings that courts currently employ only partly capture what is at stake.

A. Waste, Inefficiencies, and Gamesmanship
Parallel proceedings raise a host of problems. As one commentator explains: "[T]here is almost nothing in principle to support the maintenance of concurrent, parallel proceedings in the courts of different countries. '27 Duplicative litigation is patently wasteful. 28 It im-25 Lis alibi pendens, or simply lis pendens, is defined as a "suit pending elsewhere." BLACK'S LAW DICTIONARY 931 (6th ed. 1990).
26 The approach would be similar to what some have referred to as the "recognition prognosis" that has been adopted in many Western European countries. See FAWCETr, supra note 16, at 36-37.
27 Calamita, supra note 13, at 610; see also Vestal, Reactive Litigation, supra note 12, at 15 ("The policy of law generally seems to be that all facets of a controversy should be tried in a single action."); Janet Walker, Parallel Proceedings-Converging Views: The Westec Appeal, 38 CAN. Y.B. INT'L L. 155, 155 (2000) ("In the jungles of transnational litigation, there is probably nothing quite as savage as parallel litigation. It is savage because the commencement of a second proceeding on the same matters in a different forum almost inevitably represents some form of abuse." (footnote omitted)).
28 James C. Rehnquist, Taking Comity Seriously: How to Neutralize the Abstention Doctrine, 46 STAN. L. REv. 1049, 1064 (1994) ("Many of the costs of duplicative litigation are self-poses a heavy financial burden on the parties by forcing them to litigate the same case simultaneously in two places, and sometimes in piecemeal fashion. 2 9 It also needlessly consumes scarce court resources, as two judges work on the same legal problem. 30 The waste is magnified if the ultimate judgment in one action renders the other action meaningless. 3 1 The concern for conserving scarce judicial resources should not be downplayed: the backlog of cases in U.S. courts 32 threatens access to justice. 33 evident. It is patently wasteful."); see also Linda J. Silberman, The Impact of Jurisdictional Rules and Recognition Practice on International Business Transactions: The U.S. Regime, 26 Hous. J.
INT'L L. 327, 339-46 (2004) (exploring the means to address and deal with the problems of parallel international litigation); Teitz, Both Sides of the Coin, supra note 8, at 3-15 (describing the increase of parallel proceedings, the race to file, and the problems with concurrent jurisdiction in international cases). 29 Calamita, supra note 13, at 609-10; see also Kathryn E. Vertigan, Note, Foreign Antisuit Injunctions: Taking a Lesson from the Act of State Doctrine, 76 GEO. WASH. L. REV. 155, 158 (2007) ("Although fears of a race to judgment are one concern that parallel litigation raises, there are others. These other concerns include increased expense and inconvenience to litigants, a waste of scarce judicial resources, and the risk of inconsistent judgments arising from the two different fora.").  983 (1950) [hereinafter Power to Stay] ("One tribunal's expenditure of time and effort will prove wasted since the first decision will be res judicata in the other suit."); see also Seattle Totems Hockey Club, Inc. v. Nat'l Hockey League, 652 F.2d 852, 856 (9th Cir. 1981) (explaining how permitting litigation to proceed concurrently in two fora "could result in inconsistent rulings or even a race to judgment"). Issues of cost and efficiency are not the only concern. Parallel proceedings are also problematic because they "smack[ ] of an indefensible gamesmanship, jeopardizing public faith in the judicial system. ' 34 A litigant may file parallel proceedings solely to vex or harass the opposing party. 35 At the very least, the ability to file a concurrent, parallel action invites tactics designed to delay the suit from proceeding in the forum not of the plaintiff's choice. 36 This is the race to judgment problem. 37 Concurrent proceedings can also lead to inconsistent judgments and subject the parties to incompatible obligations. 38 In some cases, a settlement strategy motivates the filing of a reactive suit, as the costs of litigating on two fronts are prohibitive for many plaintiffs. 39 Further considerations exist beyond cost, efficiency, and gamesmanship. Continuing a case, when the same case between the same parties was already filed in a foreign forum, can implicate foreign relations and breed resentment. As one scholar notes, "[n]ot only are foreign relations apt to be more fragile than" state-to-state and federalto-state relations, "but they are also more apt to be disturbed-speciflies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship .... "). 34 Rehnquist, supra note 28, at 1064 (describing the problems caused by duplicative litigation in the U.S. federal and state courts). 35 Michael T. Gibson, Private Concurrent Litigation in Light of Younger, Pennzoil, and Colorado River, 14 OKLA. Cn" U. L. REV. 185, 196-98 (1989) ("The reacting party often is trying to vex or harass the original plaintiff ... . Reactive litigation generated by these illegitimate motives serves no useful purpose and often creates significant problems."); Vestal, Repetitive Litigation, supra note 12, at 526 (describing how plaintiffs can harass defendants through the filing of duplicative parallel proceedings); cf Yoshimasa Furuta, International Parallel Litigation: Disposition of Duplicative Civil Proceedings in the United States and Japan, 5 PAc. RIM L. & PoL'Y J. 1, 4 (1995) (arguing that parallel proceedings can have benefits in narrow circumstances, but noting the problem of harassment).  ically by the apparent interference of one state's courts in the judicial business of another's. '40 In high-profile suits, duplicative litigation can potentially interfere with the executive's management of foreign affairs. 41 And when duplicative litigation proceeds simultaneously in two countries, courts are aware of the key role they play. "One court may be asked to accelerate (or delay) its adjudication to thwart (or enhance) the potentially preclusive effect of a result in the other court, a strategy that squarely pits docket against docket, if not court against court. '42 For these reasons, near universal agreement exists that duplicative litigation, in theory, should be avoided.

B. Three Doctrinal Approaches
Presently, U.S. courts apply variations on three different approaches when concurrent, duplicative proceedings are pending in a foreign country. 43 In all three approaches, courts mostly continue to address parallel proceedings in the international context using the tools of domestic doctrine. 44 And generally courts are reluctant to stay an action pending resolution of a first-filed foreign action, concerned that deferring to a foreign court constitutes an abdication of their responsibility to hear a case once jurisdiction vests. 45 As detailed below, the overriding presumption is against declining jurisdiction. 42 Rehnquist, supra note 28, at 1065; see also LaDuke v. Burlington N. R.R., 879 F.2d 1556, 1560 (7th Cir. 1989) (describing the danger that, when two suits are allowed to proceed simultaneously, "a party may try to accelerate or stall proceedings in one of the forums in order to ensure that the court most likely to rule in its favor will decide a particular issue first"). 43 46 The Colorado River case involved the exercise of federal jurisdiction when the parties were simultaneously litigating the same issues in state court. 47 In now oft-cited language, 48 the Court cautioned that abstention in the federal-state context should occur only in "exceptional" circumstances because a "virtually unflagging obligation of the federal courts to exercise the jurisdiction given them" exists. 49 The Court explained, however, that in rare cases "principles unrelated to considerations of proper constitutional adjudication and regard for federal-state relations" control. 50 Abstention might be appropriate, the Court found, when necessary for "[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation." '51 After Colorado River, a number of cases reaffirmed its core holding 5 2 and later courts applied the case and its progeny in the international context. 53 Because a "heavy obligation to exercise jurisdiction" exists, 5 4 under this approach courts rarely stay litigation when faced  proceed simultaneously, at least until a judgment is reached in one which can be pled as res judicata in the other."' 56 A second, related approach recognizes the general unflagging obligation of federal courts to exercise jurisdiction conferred upon them, but then focuses on the unique considerations that private international disputes raise. 57 Characterized as international abstention, this second approach infuses comity and broader fairness considerations into the analysis, as well as concern over the efficient use of judicial resources. 5 8 Under the international abstention approach, courts tend to more readily stay an action pending resolution of an identical firstfiled foreign proceeding. Several courts, however, have limited the application of international abstention-and, in turn, the use of comity-to when a foreign decision has been reached (finding it inapplicable to pending foreign actions).5 9 Notably, unlike stays entered under 55  the Colorado River doctrine, stays granted employing international abstention are generally not considered final rulings and therefore are not immediately appealable.60 The third approach-and the least followed for transnational liti-gation61 -is drawn from cases dealing with parallel litigation pending in more than one federal court. 62 In that context, "something close to a system of lis pendens operates, with a strong preference in favor of the first filed case." ' 63 This approach can be traced to Landis v. North American Co., where Justice Cardozo, writing for the court, rested the decision to stay on the inherent equitable powers of the court: "[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." 64 Under Landis, courts employ a balancing test 65 that requires the mo-60 Groenveld Transp. Efficiency v. Eisses, 297 Fed. App'x 508, 512 (6th Cir. 2008) (finding stay order did not constitute a final order and appellate court lacked jurisdiction to hear appeal); Boushel v. Toro Co., 985 F.2d 406, 408 (8th Cir. 1993) (finding stay order is not immediately appealable). 61 James P. George, Parallel Litigation, 51 BAYLOR L. REV. 769, 799 (1999) (noting that "Landis is not often cited by courts addressing intrafederal parallels, apparently because its formulation of a first-impression test has been superseded by later, more definitive cases"). Compare BORN & RUTLEDGE, supra note 43, at 523 ("Although it has occasionally been suggested that the lis pendens doctrine is not available in international cases, the doctrine has frequently been invoked to stay domestic actions in favor of parallel proceedings in non-U.S. courts." (footnotes omitted)), with Bermann, supra note 40, at 610 (arguing that lis pendens does not operate in the international setting). vant to "make out a clear case of hardship or inequity in being required to go forward [in the other forum] ... ,, 66 The burden is on the party seeking the stay to establish grounds for it; the court's decision to grant the stay is discretionary. 67 Another wrinkle adds to the confusion. Although these three approaches to reactive, duplicative litigation are different, with distinct emphases and historical roots, courts have blurred the lines separating them. 68 Judges commonly now cite all three approaches-relying on Colorado River, Landis, or international abstention cases simultaneously-neglecting to acknowledge the tension (or, perhaps, even inconsistency) in doing so. 69

II. The Critique
All three analytical approaches that U.S. courts use fail to adequately address, in differing degrees, the problems of first-filed, duplicative foreign proceedings. Courts would be better off decoupling the issue of foreign duplicative proceedings from the domestic abstention doctrines and expressly recognizing that international abstention acts as a counter to balance the increasingly broad jurisdictional reach of American courts. (explaining that whether to enter a stay is within the "sound discretion" of the district court and that the party seeking the stay bears the burden of showing "that there is pressing need for delay, and that neither the other party nor the public will suffer harm from entry of the order."

A. The Limits of Current Doctrine
The present approaches to first-filed, foreign, duplicative litigation can be critiqued on a number of fronts. As an initial matter, Landis abstention-used to address duplicative federal court proceedings-conceptually is ill-suited for the international context. 70 Landis is concerned with intrajurisdictional stays, when the reactive litigation is filed in the same court system. 71 Distinguishing between intraand interjurisdictional stay requests is sound: although the differences are sometimes overplayed, 72 foreign courts can have starkly different judicial systems and conceptions of justice. 73 Bright-line, automatic, first-to-file rules (without other adjustments) work best when similar jurisdictional and judgment-enforcement rules are used and the existence of concurrent jurisdiction is rare. 74 Moreover, in practice, courts that utilize Landis as the starting point for the analysis commonly end up considering factors similar to those considered under the Colorado River or international abstention approaches. 75 On the other hand, the other two approaches-Colorado River the offense to foreign sovereigns is at best speculative than when a foreign court has already asserted jurisdiction and the likelihood of offense is real. This is because courts may dismiss a case by virtue of forum non conveniens without considering its unflagging obligation to exercise jurisdiction. 76 Under forum non conveniens, a U.S. court will dismiss a case if it finds itself to be a significantly inconvenient forum whereas requiring that the parties litigate elsewhere would better serve the interests of the public and the parties. 77 The paradox is therefore twofold. First, courts are more willing to dismiss than stay an action (i.e., they are more willing to impose a harsher result) 78 Second, courts find comity to be a more potent concept when the possibility of offending a foreign sovereign and the threat of duplicative costs is at most speculative.
This inconsistent treatment-difficult to justify in any principled way-is likely an historical oddity. Courts developed one line of cases under forum non conveniens, simultaneously crafted international abstention in an entirely separate line of cases, and failed to recognize the substantial overlap. In the forum non conveniens context, unlike the abstention context, the notion of an unflagging obligation to exercise jurisdiction long ago gave way to the concept of international  Another problem exists in relying on Colorado River for international cases. The unflagging obligation of federal courts to exercise jurisdiction is a principle peculiar to the domestic context. The "unflagging obligation" language 80 developed in the context of the civil rights movement 8 ' and, despite some protests in the case to the contrary, 82 is generally understood to reflect long-ensuing debates over federalism. 83 The unflagging obligation was formulated with concerns that state courts were not as prone as federal courts to promptly and effectively vindicate federal constitutional rights, or, at least, that Southern state court judges could not be trusted as guardians of con- stitutional rights. 8 4 Skeptics of federal and state court parity "posit an overt hostility on the part of state courts to the vindication of federal constitutional rights. ' ' 8 5 Underlying the debate, then, over whether the federal courts must exercise the jurisdiction Congress has granted them is the acknowledgement that the Constitution grants Congress the primary authority for defining the federal courts' jurisdiction. 8 6 Regardless of the merits of this parity debate, the considerations animating it are not present in the international context. 87 The nation's system of federalism specifically embraces and encourages concurrent federal and state court jurisdiction, 88 and achieving the correct balance between federal and state court authority is a key component of federalism. 8 9 In contrast, no higher civil court exists on the international plane, 90 nor does any world constitution purport to distribute 84 See, e.g., Barry Friedman, A Revisionist Theory of Abstention, 88 MICH. L. REV. 530, 539 (1989) (noting the abstention doctrine "rested upon a fundamental distrust of state courts to protect federal rights"); see also Burt Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105, 1105 (1977) (describing as a "dangerous myth" the assumption that "state courts will vindicate federally secured constitutional rights as forcefully as would the lower federal courts"); Redish, supra note 22, at 91-92 ("If it is thought that state judges ... will be more sympathetic to state concerns, then it is difficult to see how state judges can also be equally enthusiastic enforcers of federal rights against state action." (footnote omitted)). authority between different nations' courts. 91 Internationally, concurrent exercise of authority is often discouraged to avoid conflict, and each nation-state is under an obligation to exercise its sovereignty in a way that reduces interference with the sovereignty of others. 92 Nor do the separation of powers concerns, which have been thought to require courts to exercise jurisdiction once vested, 93 exist in the international context. In domestic cases, declining jurisdiction in the absence of clear statutory authority may or may not be "a power  1905 (1938), further proceedings at 3 R.I.A.A. 1938 (1941) (holding that "no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another"); see also Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 22 (Apr. 9) (holding that it is "every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States"); Lac Lanoux (Spain v. grab-a usurpation of congressional power to define the jurisdiction of the federal courts-that is incompatible with basic premises of constitutional democracy." 94 But in the international context, the existence of parallel proceedings is largely not one of Congressional choice, but a result of judge-made jurisdictional rules. 95 Presumably what the courts give, they can take away. 96 Another point is worth making, although it is not peculiar to foreign parallel proceedings. The universally quoted language that courts have a "virtually unflagging obligation" 97 to hear cases is, as a descriptive matter, simply wrong. Courts flag in their obligation to hear cases all the time. From the justiciability doctrines, 98 to forum non conveniens, 99 to abstention,1°° to exhaustion of state remedies,1°1 to supplemental jurisdiction,10 2 courts now commonly decline to hear  cases even though jurisdiction has attached. 1 0 3 The appropriate question to ask then is not whether courts may decline jurisdiction-that happens routinely as the so-called absolute right doctrine has come into disfavor. 10 4 The question is whether declining jurisdiction in a particular context is wise. At the very least, staying a case in the face of parallel litigation is substantially more similar to forum non conveniens than to domestic abstention doctrines-in fact, several countries address parallel litigation using forum non conveniens.1 05 And in any case, when a court stays a case rather than dismisses it, the court technically has not abdicated its duty or refused to exercise the jurisdiction granted it.106 So reliance on the Court's unflagging obligation language is particularly misplaced. 1 0 7 The three approaches contain other oddities that make them poorly suited for handling duplicative foreign litigation. One puzzling oddity is the continued distinction between in rem, quasi-in-rem, and in personam actions. 108 If the first-filed case is an in rem action, courts will routinely stay litigation' 0 9 on the fiction that only one sovereign  110 This focus on whether a court has assumed jurisdiction over a res is strange. Shaffer v. Heitner t1 purportedly precluded such a basis for differentiating between cases, 112 the Supreme Court having long interred the hoary distinction between in rem and in personam labels, at least for jurisdictional purposes. 113 Although in rem cases may often provide a stronger case for abstaining because of the fear of conflicting judgments related to the same piece of the property, the same general concerns (conflicting judgments, unnecessary waste, tension between different sovereigns, etc.) are present for in personam cases as well. 111 Shaffer v. Heitner, 433 U.S. 186 (1977). 112 See id. at 211-12 (characterizing any distinction between in rem and in personam jurisdiction as a "fiction" and stating that all exercises of personal jurisdiction, whether in rem, quasi in rem or in personam, must satisfy the minimum contacts standard of International Shoe and its progeny); see also Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 312 (1950) ("Distinctions between actions in rem and those in personam are ancient and originally expressed in procedural terms what seems really to have been a distinction in the substantive law of property under a system quite unlike our own."). 113 See, e.g., Mulenix, supra note 15, at 119-20 (arguing that the "jurisdiction over the res" factor contained in Colorado River "consists of an anachronistic jurisdictional principle" that "is something of an anomaly"); Martin H. Redish, Intersystemic Redundancy and Federal Court Power: Proposing a Zero Tolerance Solution to the Duplicative Litigation Problem, 75 NOTRE DAME L. REv. 1347, 1359 (2000) (describing any distinction between in rem and in personam cases as "little more than a metaphysical relic of a very different epistemological age"); Rehnquist, supra note 28, at 1106 ("[A]fter the fiction of in rem jurisdiction has been drained of any force in the personal jurisdiction context, one can hardly take seriously a rule that can be explained only by recourse to the in rem-in personam distinction." (footnote omitted)). they are with a long litany of ill-defined policy and other vague considerations. 114 Some courts balance as many as three factors and ten subfactors. 115 But no guidance is given to how much relevance or weight a court should afford each factor. And often the factors are apples and oranges to one another. For example, although courts routinely pay lip service to adjudicatory comity, courts appear (1) whether the judgment was rendered via fraud; (2) whether the judgment was rendered by a competent court utilizing proceedings consistent with civilized jurisprudence; ... observed that decisions relying on Colorado River are inevitably conclusory and filled with "legal gibberish." 118

B. Expanding Jurisdiction
Another way of looking at foreign parallel proceedings exists, one that appreciates the interconnectedness between the growth of concurrent actions and the expanding reach of federal court jurisdiction. As a general matter, U.S. courts have systematically broadened their jurisdictional reaches as they have discarded territorial theories of jurisdiction. 119 More recently, pressure to use domestic laws (rather than international law) to solve global problems and extend American power abroad has contributed to these jurisdictional expansions. As these expansions occurred, the number of concurrent and overlapping actions in turn exploded. 120

Legal Realism and Territoriality's Decline
Before the Second World War, territoriality was a defining feature of American law. 121 Conflict of laws doctrine, 122 as well as prescriptive 12 3 and adjudicatory jurisdiction, 124 were founded on territorial theories that geographically constrained judicial power. 125 Jurisdiction was limited by territoriality: a theory derived from Dutch scholars 126 which found that "each sovereign had jurisdiction, exclusive of all other sovereigns', to bind persons and things present within its territorial boundaries. ' 127 Or, in Justice Story's words, "every nation possesse[d] an exclusive sovereignty and jurisdiction within its own territory," and "it would be wholly incompatible with the equality and exclusiveness of the sovereignty of any nation, that other nations should be at liberty to regulate either persons or things within its territories. ' 1 28 With the world carved up into separate, territorial regions and court power based on territorial principles, jurisdictional overlap and the problem of parallel proceedings were rare. 12 9 At the end of the Second World War, however, pragmatism, legal realism, and other related theories began to discredit territorial theories of jurisdiction and the problem of concurrent jurisdictional assertions became more prevalent. 130  assumptions that underpinned territorial approaches to law. 1 31 The legal realists argued that the power to regulate did not flow "naturally and inevitably from some self-evident theory" like territoriality. 132 Instead, realists pushed for "reasonableness" to be the touchstone of any jurisdictional analysis. 133 The result-through a series of decisions in the mid-century-was that the law of personal and legislative jurisdiction, as well as the related fields of venue and choice of law were "swept clear of nearly all rules, at least those that [could] be applied in a more or less determi- The legal realist's social-functional conception of law and legal institutions provided the Court with a theoretical framework for interpreting and applying constitutional provisions in a way that allowed the social change and growth that had been inhibited by rigid, conservative formalism." (footnote omitted)); Rutherglen, supra note 119 (describing legal realism's impact on personal jurisdiction); Logan Everett Sawyer III, Jurisdiction, Jurisprudence, and Legal Change: Sociological Jurisprudence and the Road to International Shoe, 10 GEO. MASON L. REV. 59 (2001) (describing how legal realism and social science led to International Shoe). 131 See Terry S. Kogan, A Neo-Federalist Tale of Personal Jurisdiction, 63 S. CAL. L. REV. 257, 316 (1990) (noting that legal rules in the nineteenth century were "fixed, inexorable, and logically deductible"); see also MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 at 259 (1977) (noting the link between legal formalism and mercantile interests in conceiving of law "as a fixed and inexorable system of logically deducible rules"). 132 See KARAYANNI, supra note 73, at 120-21 n.62 (arguing that legal realism was "a legal movement that sought to substitute notions of territoriality with functional standards to guarantee fairness of outcomes"); see also ERNEST G. LORENZEN In the personal jurisdiction context-with International Shoe 138 and later with cases like Shaffer v. Heitner 139 -the Court discarded a core premise of early jurisdictional doctrines that states could not assert jurisdiction over people outside their borders. Together, the decisions interred the premise that "every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory" and that "no State can exercise direct jurisdiction and authority over persons or property without its territory.' 14o Judicial inquiry "shifted from territorial considerations to a qualitative evaluation of the relationships among the plaintiff, the defendant, the forum state, and the events occasioning the litigation. ' ' 1 4 1 The idea that fairness and not territorial borders provided the only limitation on jurisdictional power was then carried to the international context. 142 Courts finally expanded personal jurisdiction by re-embracing a form of terri- The same drift occurred in the context of legislative jurisdiction: courts moved from an approach based on territorial limits to one founded on concepts of fairness. Initially, legislatures were barred from creating laws that regulated foreigners abroad. 145 Over time that prohibition changed to a presumption, where Congress was permitted to regulate abroad, but was presumed not to. 146  state has jurisdiction to prescribe law with respect to ... conduct outside its territory that has or is intended to have substantial effect within its territory .... "); RESTATEMENT (SECOND) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 38 (1965) (stating that federal statutes apply to "conduct occurring within, or having effect within, the territory of the United States"). For cases that find the presumption against extraterritoriality inapplicable when an effect is felt in the United States, see In jurisdiction.14 8 As legal rules of jurisdiction became more indeterminate, the jurisdictional reach of American courts grew too. 149 In fact, the growth was so dramatic that the forum non conveniens doctrine arguably developed from a need "to decline jurisdictional power, notwithstanding its existence." 150

Globalization and the World in U.S. Courts
Legal realism and the demise of territorial rules, however, was just a harbinger of things to come. Although jurisdiction expanded midcentury with the decline of territorial theories, it continued to expand at the end of the twentieth century for at least two additional reasons. The first was globalization and technological advances. The second, arguably more important although often downplayed, was the reluctance in the United States to embrace international law and the systematic turn to national courts and domestic law to solve international challenges.
Early in the twentieth century, the international cartel movement created complex business relationships that crossed national borders. 151 In the later part of the twentieth century, globalization-and   . 1990) (noting as a rule that requiring a nonresident to defend locally is not constitutionally unreasonable "[iln this era of fax machines and discount air travel"); see also CLERMONT, supra note 127, at 12 ("Of course, the revolution of transportation and communication has increased the occurrence of long-distance disputes, but it has also decreased the burden of long-distance litigating."). led to further pressure to ignore any remaining territorial limits to the exercise of judicial power and increased the number of overlapping laws. 1 -6 The second driving force was the move away from international law as a palatable way to address global challenges. During the late 1990s, conservative, neorealist scholars 157 attacked international law believing it to threaten American independence.' 58 Modern liberal internationalist scholars also turned away from international law by promoting the influence of nonstate and substate actors, who sought to have a greater voice and role in international law and relations. 1 59 Both positions were ideologically driven and intimately tied to the domestic culture wars. 160 The neorealists were largely allied with con- the Internet forms one of the paradigms which underlie the general view of deterritorialization, transnationalism, state decline, and the replacement of national pyramids of normativity by global networks of spread-out normativity," id. at 801); see also JACK servative domestic movements, which for decades had sought to roll back a progressive civil rights agenda. 161 The modern internationalists in turn sought to give greater power to environmental, human rights, and indigenous rights groups as a way of advancing progressive, public-interest-oriented values. 1 62 Both groups were successful in their own way. The United States increasingly withdrew from international law and its institutions, preferring to use domestic law (applied extraterritorially) to solve global challenges. 163 These ideological tugs meant jurisdictional doctrines were pushed to encompass claims even less connected to the United States. Many see U.S. courts as "both a means for redressing many of the world's evils and a model for others to emulate."' 164 Currently, few disputes escape the long jurisdictional arms of U.S. courts.

III. The Proposal
So what is to be done? An integrated approach to parallel litigation is needed, one that avoids the costs of unnecessary duplication, protects American interests from foreign overreaching, and recognizes how parallel litigation is connected to jurisdiction. A two-step inquiry commends itself to achieving these goals. 165 . 165 The proposal has similar elements to that recently suggested by N. Jansen Calamita. The proposals differ, however, in that this one does not promote adjudicatory comity as the basis Second, a reversed presumption would be easy to apply, lead to greater predictability, and avoid arbitrary results. Predictability is one reason Europe has generally preferred a lis pendens rule over a multifactor balancing test. 7 0 A presumptive stay does not require the court to assess the unquantifiable (and often unknowable) interests of a foreign forum or otherwise evaluate foreign law. 171 Instead, the test would require that the court assess what it does routinely: determine whether under U.S. law jurisdiction exists to proceed.
Lastly, creating symmetry between jurisdiction and international abstention ensures that U.S. interests are accounted for. If Congress becomes concerned that too many actions may be decided abroad, it need only curtail the breadth of the court's jurisdictional assertions. The U.S. interest in having a case heard locally is at its lowest, if the foreign court is a reasonable and appropriate forum under U.S. standards. If, in contrast, the foreign court has asserted jurisdiction on an exorbitant basis, 172 then the U.S. court should not defer 173 and the stay should be denied.
The benefits to staying an action when the first-filed case is before a court of appropriate jurisdiction are also evident in this approach. The United States will avoid the costs that unnecessarily duplicative actions engender. Following the first-to-file rule reduces the number of transnational lawsuits proceeding concurrently, thereby eliminating the potential for conflicting decisions and an invidious race to judgment. Respecting a presumptive lis pendens rule would also provide greater structure and guidance to the lower courts on , concurring in judgment) ("The principal enquiry at the moment is into the Dutch experience, and I question whether an independent front-line investigation into the facts of a foreign country's legal administration can be soundly undertaken through American courtroom litigation."). In a different context, see Ernesto J. Sanchez, A Case Against Judicial Internationalism, 38 CON. L. REv. 185 (2005) (arguing that judges with expertise in U.S. law lack access to adequate resources to research, interpret, and apply foreign law).
172 A classic example is the French courts assertion of jurisdiction based on nationality alone. C. civ. art. 14. 173 Indeed, the foreign court's judgment will not be recognized or enforced in such a situation. See what comity entails while curbing the potential for unprincipled, ad hoc decisions and the attendant costs created by uncertainty. Instead of the current "hydra-headed" approach, where courts have to balance multiple factors, the court would engage in one inquiry: whether the plaintiff's claims can be litigated in an already pending foreign forum with jurisdiction.1 74 Finally, a stay would discourage the filing of unnecessary reactive litigation and the corresponding increase in expense and inconvenience to both parties and courts.

B. A Shifting Burden
If the moving party makes the preliminary showing to establish a presumptive stay, the burden should then shift to the party opposing the stay. 175 The opposing party can overcome the initial presumption through demonstrating that a manifest injustice would occur if the U.S. litigation fails to proceed. A defendant meets this burden by demonstrating that waiting for the foreign proceedings to conclude would be fundamentally unfair or through establishing that the foreign forum is a forum non conveniens. Courts should be particularly sensitive to whether the natural plaintiff 176 filed the foreign action and whether the U.S. case involves parties and activities occurring abroad (even if the U.S. forum itself is not forum non conveniens).
A hypothetical drives home the approach. Assume that a New York citizen is in a car accident in New York with a French citizen, and both suffer injuries. Also assume: (1) the French citizen brings an action in France, asserting jurisdiction based on the plaintiff's nationality; 177 (2) subsequently the New-York citizen files a reactive action in New York federal district court; and (3) the French citizen moves to stay the second-filed U.S. action. Under these circumstances, the U.S. federal court would appropriately deny any request to stay the second-filed New York action. Jurisdiction based on a plaintiff's nation-ality is not a permissible basis for jurisdiction under U.S. law. 1 78 Because personal jurisdiction would not exist under U.S. jurisdictional principles, the French citizen could not meet its initial burden.
On the other hand, if the New York citizen had substantial contacts with France, sufficient to establish general jurisdiction, then the French citizen would meet its initial burden. But the New York court would still be hesitant to stay the U.S. action. Under the forum non conveniens doctrine, a French court may be viewed as an inappropriate forum given that the accident, witnesses, and events all occurred in New York. 179 Again, under U.S. procedural rules, a French forum would be considered improper.

C. Responding to Critics
While a number of objections are sometimes raised to a presumptive lis pendens approach, those objections feel makeweight when carefully scrutinized. The most common objection is the perception that a first-filed presumption would promote a race to the courthouse. But that objection seems misplaced. First, a race to the courthouse already exists. Current approaches consider who filed first as one of the many factors balanced in the analysis. 180 Similarly, we already tolerate races under Landis in federal-to-federal cases, as well as in intrastate cases. 181 Second, the race to the courthouse is less problematic than the alternative race to judgment. At least the race to the courthouse involves only the litigants, not the courts. 182 Third, current jurisdictional and forum non conveniens rules limit the number of possible places where the race could take place.
Another common objection suggests that staying a proceeding undermines a plaintiff's choice of forum. The opposite, however, is true. Creating a presumption in favor of a stay better protects the original plaintiff's choice of forum-a prerogative the U.S. system has long promoted. 18 182 See Rehnquist, supra note 28, at 1068, 1112 ("If there must be a race, let it exhaust only the litigants, not the courts as well."). 183 See Ryan, supra note 176, at 168 ("The plaintiff's forum-selection privilege is axiomatic to the common-law tradition of party autonomy."). tempts to displace the plaintiff's first-filed choice of forum by permitting the defendant in the first action to second-guess the plaintiff's choice and litigate on two fronts. 184 By allowing actions first filed in appropriate foreign courts to proceed, the plaintiff's choice is protected. The myriad of current approaches leaves litigants with so little certainty about what the court will likely do that it induces litigants to strategically file reactive suits-knowing that doing so will significantly increase an opponent's costs, while creating more confusion at the judgment-enforcement stage. 8 5 Nor does the proposed first-filed presumption elevate efficiency and administration considerations over issues of substance. As an initial matter, much of modern U.S. federal civil procedure is animated by efficiency concerns and attempts to reduce the costs of litigation. 186 dural rules seek to avoid piecemeal litigation and promote efficiency. 91 It seems strange then that such efficiency concerns, balanced against fairness, have been mostly ignored in the parallellitigation context. But the approach is not simply driven by balancing considerations of cost and judicial efficiency: a more important interest is at stake. The United States has an interest in promoting an international system that reduces conflict and values democratic self-government. Those ideals are undermined if our national courts (and others) exercise jurisdictional power extraterritorially. 192 One circuit court has explained the problems with such legal imperialism: The United States should not impose its own view of [legal standards] upon a foreign country .... if the foreign country involved was ... a country with a vastly different standard of living, wealth, resources, level of health care and services, values, morals and beliefs than our own .... Faced with different needs, problems and resources ... [the foreign country] may, in balancing the pros and cons of a [product's] use, give different weight to various factors than would our society .... . Should we impose our standard upon them in spite of such differences? We think not. 193 Although we may "cherish an image of our courts as the refuge of all seeking succor," 194 as one commentator somewhat colorfully explains, "[i]t is past time for us to get it through our heads that it is not everyone but us who is out of step. ' 195 Extensive use of extraterritorial jurisdiction and the judicial unilateralism which it entails may also be symptomatic of a decline of hegemonic power1 96 -a decline we presumably do not wish to hasten.
Said differently, our broad jurisdictional doctrines help ensure that a plaintiff can seek relief from harm, even for activities not closely connected with the United States. 197 When litigation is not pending elsewhere, it may be desirable for our courts to step in to provide a remedy. At the same time, when litigation is pending in an appropriate foreign forum, having the U.S. court stay its hand helps ameliorate the negative consequences of our sweeping jurisdictional rules. 198 As with forum non conveniens, the ability to stay a case pending the resolution of a foreign action "should not be viewed as a cynical effort by federal judges to dump cases they do not wish to hear," but rather should be seen to serve the important function of helping our courts deal with problems of multinational litigation.1 99 A final point is worth emphasizing. While a version of comity underlies the proposed approach, comity does not mean mindless deference to a foreign institution. Countries embrace comity for self-interested reasons, not out of some abstract respect of foreign sovereigns. 2 0 0 Comity embodies the concepts of mutuality and reci-procity, similar to how those concepts are embodied in other international principles, 2 0 1 such as good neighborliness, 2°2 the no-harm principle, 20 3 the duty to warn, 20 4 and the duty to cooperate. 2 0 5 States agree to impose restraints on unilateral sovereign action because by so agreeing other states will do the same, thus better preserving overall sovereignty. Said differently, comity is a way that nation-states surrender a small degree of sovereignty in the short term to restore control lost to external forces over the long term. One can criticize comity and reciprocity, 2 0 6 but they are cornerstones of the international system-ones that the United States has long benefited from.

Conclusion
Transnational litigation is here to stay. Cross-border and transboundary cases are simply a feature of a globalized, interconnected world. As a result, duplicative foreign proceedings will become more common. In short, litigants increasingly have a choice of where to battle: here, abroad, or in both places. Despite this reality, U.S. federal courts have been slow to adjust to the realities of modern, transnational cases, preferring instead to apply domestic doctrine, despite the obvious inconsistencies in doing so and the costs of allowing duplicative cases to proceed. This Article advocates for an approach that seeks to avoid the needless costs of duplicative, reactive cases. Instead of the current approach, which is often animated by federalism concerns, the presumption should be in favor of staying a U.S. action in the face of a first-filed, duplicative, foreign proceeding, so long as the foreign forum has jurisdiction consistent with U.S. jurisdictional principles. That presumption should only be overcome if the party opposing the stay can demonstrate some fundamental unfairness in waiting until the foreign proceeding is concluded. Adopting a modified lis pendens principle and reversing the current presumption would help to avoid the waste inherent in duplicative litigation and better serve long-term U.S. interests.