The Ideologies of Forum Shopping - Why Doesn't a Conservative Court Protect Defendants?

Abstract:     
In this Article, Professor George Brown identifies a seeming inconsistency in the Supreme Court's treatment of federal-state private law forum shopping and state-state private law forum shopping. Professor Brown notes that the Court has been explicit in its condemnation of federal-state forum shopping, but apparently accepts, and even encourages, state-state private law forum shopping. This is strange behavior from a conservative Court, since forum shopping threatens traditional conservative values such as the desire to curtail the proliferation of lawsuits and a general pro-defendant stance. Furthermore, Erie Railroad Co. v. Tompkins clearly rejected forum shopping. Professor Brown reconciles these seemingly contrary positions by explaining that Erie's basic rationale was adherence to federalism. If vigorous state regulation of private matters was Erie's objective, then rejection of federal-state private law forum shopping and acceptance of state-state forum shopping are consistent with the spirit and rationale of Erie. Professor Brown concludes that the apparent paradox created by the Court's position of forum shopping merely reflects the triumph of states' rights over defendants' rights and adherence to a federalism reading of Erie.

Keywords: forum shopping, federalism, private law, state regulation, erie railroad company, tompkins

Accepted Paper Series