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 sell-ing.” 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 in-centive 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 anti-trust law. It also analyzes how German courts compete internationally with courts from other countries.
Antitrust and Trade Regulation | Civil Procedure | Communications Law | Comparative and Foreign Law | Courts | European Law | Intellectual Property Law | Judges | Jurisdiction | Law | Law and Economics | Litigation | Transnational Law
Date of this Version
Stefan Bechtold, Jens Frankenreiter, and Daniel M. Klerman, "Forum Selling Abroad" (September 2018). University of Southern California Legal Studies Working Paper Series. Working Paper 275.
Antitrust and Trade Regulation Commons, Civil Procedure Commons, Communications Law Commons, Comparative and Foreign Law Commons, Courts Commons, European Law Commons, Intellectual Property Law Commons, Judges Commons, Jurisdiction Commons, Law and Economics Commons, Litigation Commons, Transnational Law Commons