Forum Selling Abroad

70 Pages Posted: 27 Sep 2018 Last revised: 28 Feb 2019

See all articles by Stefan Bechtold

Stefan Bechtold

ETH Zürich

Jens Frankenreiter

Columbia Law School

Daniel M. Klerman

University of Southern California Gould School of Law

Date Written: January 18, 2019

Abstract

Judges decide cases. Do they also try to influence which cases they decide? Clearly plaintiffs “shop” for the most attractive forum, but do judges try to attract cases by “selling” their courts? Some American judges actively try to enlarge their influence by making their courts attractive to plaintiffs, a phenomenon known as “forum selling.” This article shows that forum selling occurs outside the U.S. as well, focusing on Germany, a country that is often held up as the paragon of the civil law approach to adjudication. As in the U.S., German courts attract cases primarily through the pro-plaintiff manipulation of procedure, including the routine issuance of ex parte injunctions in press cases and refusal to stay patent infringement proceedings when the patent’s validity is challenged in another forum. A critical difference between forum selling in Germany and the U.S. is that court administrators are more actively involved in Germany. As state officials, German court administrators have the incentive to consider the effect of caseloads on government revenue and the local economy, and they use their power to allocate judges to particular kinds of cases in order to make their courts attractive. They also use their power over promotion, case allocation, and resources to reward judges who succeed in attracting cases. Based on an extensive set of interviews with attorneys, judges and court officials, this article describes evidence of forum selling in German patent, press, and antitrust law. It also analyzes how German courts compete internationally with courts from other countries.

Suggested Citation

Bechtold, Stefan and Frankenreiter, Jens and Klerman, Daniel M., Forum Selling Abroad (January 18, 2019). MPI Collective Goods Discussion Paper, No. 2018/11; Virginia Law and Economics Research Paper No. 2018-14; USC CLASS Research Papers Series No. CLASS19-3; USC Legal Studies Research Papers Series No. 19-3. Available at SSRN: https://ssrn.com/abstract=3256183 or http://dx.doi.org/10.2139/ssrn.3256183

Stefan Bechtold

ETH Zürich ( email )

IFW E 47.2
Zurich, 8092
Switzerland
+41-44-632-2670 (Phone)

HOME PAGE: http://www.ip.ethz.ch/people/bechtold

Jens Frankenreiter (Contact Author)

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States

Daniel M. Klerman

University of Southern California Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States
213-740-7973 (Phone)
213-740-5502 (Fax)

HOME PAGE: http://weblaw.usc.edu/contact/contactInfo.cfm?detailID=227

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