The Evolving Forum Shopping System
Cornell Law Review, Vol. 96, p. 481-534, 2010-2011
55 Pages Posted: 27 Apr 2010 Last revised: 22 Jul 2011
Date Written: March 10, 2011
This Article uses empirical analysis to provide a new understanding of transnational litigation in U.S. courts. According to conventional wisdom, the United States has a forum shopping system with two features that encourage plaintiffs to file claims in U.S. courts, even when those claims involve foreign parties or foreign activity: a permissive approach to personal jurisdiction, giving plaintiffs broad court access, and a strong tendency of U.S. judges to apply plaintiff-favoring domestic law. This forum shopping system purportedly contributes to a rising tide of transnational litigation in the United States. Scholars and interest groups have therefore proposed new anti–forum shopping measures aimed at curtailing transnational litigation in U.S. courts.
This Article shows that the forum shopping system has evolved and that it no longer encourages plaintiffs to pursue transnational claims in U.S. courts to the extent it supposedly once did. It also presents empirical evidence that transnational litigation in the United States may have actually decreased, not increased, over the last two decades. The analysis suggests that new anti–forum shopping measures may not be as urgent or necessary as their advocates claim. If adopted, such measures could unduly limit access to justice for both American and foreign citizens who, in our era of globalization, are increasingly affected by transnational activity.
Keywords: Civil Procedure, Forum Shopping, Conflict of Laws, Choice of Law, Jurisdiction, Forum Non Conveniens, International Law, Transnational Law, International Litigation, Transnational Litigation, Judicial Decisionmaking
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