Forum Crowding

69 Pages Posted: 31 Jan 2023 Last revised: 28 Mar 2023

See all articles by Tejas N. Narechania

Tejas N. Narechania

University of California, Berkeley, School of Law

Tian Kisch

Independent

Delia Scoville

Independent

Date Written: February 16, 2023

Abstract

Jurists and scholars have long debated (and often decried) the practice of forum shopping. Critics note, for example, that forum shopping both yields procedural gamesmanship and undermines the courts’ legitimacy, while supporters contend that competition for cases increases access to the courts and improves litigants’ experiences.

Such debates have overlooked the effects of forum shopping on an important constituency: litigants who have little choice over forum. When forum shopping causes a sudden influx of cases—when, that is, it crowds a forum—what happens to other cases that have nowhere else to go? Are busy judges—made busy by forum shopping—more prone to error?

In this Article, we conduct a novel analysis of the effects of such forum crowding. In particular, we draw on ongoing pathologies in patent litigation, which has been subject to extreme forum shopping for over a decade, to empirically examine the effects of these practices on other cases, including criminal and civil rights cases, which are subject to more stringent forum rules. Our bottom line is simple and sobering: In crowded courts, these cases seem to get short shrift. And so we conclude by offering procedural reforms aimed at protecting these cases from being crowded out.

Keywords: venue, forum shopping, forum selling, patent, forum crowding, court congestion, procedural justice, procedural fairness, judicial process

Suggested Citation

Narechania, Tejas N. and Kisch, Tian and Scoville, Delia, Forum Crowding (February 16, 2023). California Law Review (forthcoming 2024), Available at SSRN: https://ssrn.com/abstract=4343031 or http://dx.doi.org/10.2139/ssrn.4343031

Tejas N. Narechania (Contact Author)

University of California, Berkeley, School of Law ( email )

Berkeley, CA 94720-7200
United States

HOME PAGE: http://www.tejasnarechania.net

Tian Kisch

Independent

Delia Scoville

Independent

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