78 Pages Posted: 19 Dec 2014 Last revised: 2 Sep 2016
Date Written: July 21, 2016
Forum shopping is problematic because it may lead to forum selling. For diverse motives, including prestige, local benefits, or re-election, some judges want to hear more cases. When plaintiffs have wide choice of forum, such judges have incentives to make the law more pro-plaintiff, because plaintiffs choose the court. While only a few judges may be motivated to attract more cases, their actions can have large effects, because their courts will attract a disproportionate share of cases. For example, judges in the Eastern District of Texas have distorted the rules and practices relating to case assignment, joinder, discovery, transfer, and summary judgment in order to attract patent plaintiffs to their district. As a result of their efforts, more than a quarter of all patent infringement suits were filed in the Eastern District of Texas in 2014. Consideration of forum selling helps explain constitutional constraints on personal jurisdiction. Without constitutional limits on jurisdiction, some courts are likely to be biased in favor of plaintiffs in order to attract litigation. This article explores forum selling through five case studies: patent litigation and the Eastern District of Texas and elsewhere, class actions and mass torts in “magnet jurisdictions” such as Madison County, Illinois, bankruptcy and the District of Delaware, ICANN domain name arbitration, and common law judging in early modern England.
Keywords: forum shopping, personal jurisdiction, venue, patent, trademark, ICANN, UDRP, class action, mass tort, product liability, bankruptcy, LoPucki, Eastern District of Texas, forum selling, judicial behavior, reorganization
Suggested Citation: Suggested Citation
Klerman, Daniel M. and Reilly, Greg, Forum Selling (July 21, 2016). 89 Southern California Law Review 241 (2016); USC CLASS Research Paper No. 14-35; USC Law Legal Studies Paper No. 14-44; California Western School of Law Research Paper No. 16-08. Available at SSRN: https://ssrn.com/abstract=2538857 or http://dx.doi.org/10.2139/ssrn.2538857
By Matthew Sag