By: Gabriela B. Clark
The rise of globalization and the normalization of transnational commercial agreements motivated the United States to make commitments that seek to facilitate the resolution of international litigation and dispute resolution processes. One of the byproducts of the United States’ commitment to international cooperation is 28 U.S.C. § 1782, a statute that opens American courts to foreign parties seeking discovery for use in foreign proceedings. Continuous amendments to this statute, paired with a Supreme Court decision that provided an
overly vague, unworkable balancing test, gave free rein to lower courts’ discretionary powers, ultimately resulting in a myriad of conflicting decisions. This Note seeks to address some of the aforementioned conflicts and proposes an amendment to 28 U.S.C. § 1782 that would reduce the extent to which courts’ discretionary powers play a role in the outcome of § 1782 requests, resulting in a more straightforward application of the statute.