Volume 52
Issue 1
Fall '20

Exhaustion as an Emerging Principle

Written By: Micaela Heery-Hyatt

Abstract

Domestic courts in the United States are increasingly encountering cases that may satisfy jurisdictional hurdles, but are “foreign” in nature. These cases, which often involve some combination of foreign plaintiffs, defendants, and facts, implicate the judiciary in questions of foreign relations normally handled by the Executive and Legislative Branches. This Note argues that judges should require plaintiffs to “exhaust” remedies in foreign forums that are more closely connected to their cases. Rather than dismiss these cases outright, however, judges can and should stay these proceedings in the interim. This Note first explores the doctrine of exhaustion as it currently exists in both international and domestic law. It then presents a new approach to exhaustion, which would allow judges to use a multi-factor test to decide whether to stay a case that touches heavily upon foreign relations issues. Part IV addresses an argument that the Foreign Sovereign Immunities Act may foreclose this novel approach. Additional concerns about requiring extra-textual exhaustion are addressed in Part V. Part VI presents a case study of this judicial solution based on Simon v. Hungary, 37 F. Supp. 3d 381 (D.D.C. 2014). The emerging concept of exhaustion presented in this Note could redirect cases that are only marginally connected to the United States towards more suitable forums, thus reducing foreign policy friction.

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