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.
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Date of this Version
Daniel M. Klerman and Greg Reilly, "Forum Selling" (July 2016). University of Southern California Legal Studies Working Paper Series. Working Paper 140.
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