Global Laboratories of Procedure

[Dear Workshop Readers: This is a very early draft and, as you can see, some parts remain in sketch form at this point. I am still working through my thoughts on these topics, both descriptively and normatively. Thank you for reading, and I look forward to your feedback. – PKB]

GLOBAL LABORATORIES OF PROCEDURE

Pamela K. Bookman*

Plaintiff forum shopping is often dubbed an “evil” to be eradicated. Courts and scholars concerned about this practice, both domestically and transnationally, have three main worries: that plaintiffs will choose a forum that is unfair to the defendant, that spending time and resources on the forum question is wasteful, and that courts catering to plaintiffs to attract litigation leads to the development of laws that inefficiently favor plaintiffs. This Article demonstrates that at least some of these fears should be less of a concern when it comes to transnational litigation. The Arti- cle develops a number of case studies demonstrating how forum choice can instead contribute to the diffusion of ideas about legal policies and institutions among nations, with an emphasis on the development of approaches to personal jurisdiction and collective action mechanisms. It then responds to the typical concerns about forum shopping and argues that although some of these concerns are real at the transnational level, others are overblown and undertheorized. Finally, it suggests changes to U.S. doctrine that emerge from this analysis. At its core, the Article seeks to promote a more nuanced understanding of the role of litigants in the development of legal norms and institutions, a deeper appreciation for jurisdictional diversity, and a counterweight to arguments urging the importance of imposing transnational uniformity.

* Visiting Assistant Professor and Scholar in Residence, Temple University Beasley School of Law. I am grateful to [INSERT YOUR NAME HERE].

DRAFT—Please do not cite or circulate 6/16/2015

INTRODUCTION ...... 2 I. WHO’S AFRAID OF FORUM SHOPPING? ...... 11 A. Variations on Forum Shopping ...... 12 B. Standard Critiques ...... 17 1. Unfairness ...... 19 2. Wastefulness ...... 23 3. Inefficiency ...... 24 C. Combatting Forum Shopping ...... 26 D. Defenders of Forum Shopping ...... 27 II. GLOBAL LABORATORIES OF PROCEDURE ...... 30 A. Forum Shopping as a Mechanism for Diffusion...... 31 B. Case Studies ...... 39 1. Transnational Forum Shopping in the United States ... 40 2. European Forum Selling and Its Limits ...... 43 III. DISPELLING DISDAIN FOR TRANSNATIONAL FORUM SHOPPING 50 A. The Inevitability and Desirability of Disuniformity ...... 50 B. Whither the Race? ...... 54 1. Catering to plaintiffs? ...... 56 2. Catering to defendants? ...... 59 3. Possible explanations...... 61 IV. EMBRACING FORUM SHOPPING AND ITS LESSONS ...... 64 A. Embracing Forum Shopping ...... 64 B. Lessons for US Law ...... 64

INTRODUCTION

Where a case gets litigated turns out to be extremely important. According to one count, in the United States, “[l]itigators deal with nearly as many change-of-venue motions as trials.”1 Outcomes—whether they are settlements or judicial determinations—often seem to “depend” on the forum.

1 Kevin M. Clermont & Theodore Eisenberg, Exorcising the Evil of Forum-Shopping, 80 Cornell L. Rev. 1507, 1509 (1995).

DRAFT—Please do not cite or circulate 6/16/2015 6/16/2015] Global Laboratories of Procedure 3

It is perhaps unsurprising then that forum shopping—the practice where litigants attempt to choose or influence which forum hears a case—gets a bad rap.2 According to courts and scholars, forum shopping is unfair, wasteful, and inefficient, not to mention bad for the popular perception of the legal system. And yet, despite the widely held view that it is something the law should not let stand, forum shopping seems to be on the rise, especially transnationally,3 raising issues that extend far beyond the classic domestic debates. With the “growing globalization of litigation”4—as increasing numbers of disputes touch upon multiple potential jurisdictions in different countries—forum fights take on international dimensions. Before exploring those issues, it is necessary to undertake the surprisingly difficult task of defining “forum shopping.” Op- portunities for forum shopping crop up whenever a dispute arises that might be brought in more than one forum. In the classic domestic example, a plaintiff may have the opportunity to sue in either state or federal court, possibly in multiple states.5 This opportunity arises if two criteria are satisfied: (1) there is jurisdictional concurrence, where two or more court systems offer possible fora for entertaining a lawsuit,6 and (2) litigants get to choose among them. Transnational forum choices may arise whenever those court systems are in different countries.7 For example, forum choices

2 “The American legal system tends to treat forum shopping as unethical and inefficient; parties who forum shop are accused of abusing the adversary system and squander- ing judicial resources.” Note, Forum Shopping Reconsidered, 103 HARV. L. REV. 1677, 1677 (1990). 3 Ferrari, Forum Shopping in the International Commercial Arbitration Context: Set- ting the Stage at 8; Whytock, Evolving Forum Shopping System; Whytock & Quintanilla. 4 Paul B. Stephan, Courts on Courts: Contracting for Engagement and Indifference in International Judicial Encounters, 100 Va. L. Rev. 17, 19 (2014). 5 See Erie. 6 Compare Clopton, Redundant Public-Private Enforcement [draft 3-4] (defining “redundant authority” as “the ability of multiple agents to bring separate enforcement actions that are mutually preclusive”). 7 There are also possibilities for forum shopping to regional, international, or arbitral tribunals that are mostly beyond the scope of this Article.

DRAFT—Please do not cite or circulate 4 BOOKMAN [6/16/2015 occur if the parties are from different countries or the conduct or effects of the conduct giving rise to the litigation occurred some- where other than the defendant’s home country. But although forum shopping is increasingly prevalent and discussed, no one quite agrees on a definition. In its broadest sense, “forum shopping” describes any number of circumstances, before or after a lawsuit is commenced, when parties, through their conduct, are able to impact where litigation will proceed.8 Both before and after disputes arise, putative plaintiffs and defendants have various mechanisms at their disposal for influenc- ing where litigation will proceed. Before disputes arise, parties may put forum-selection clauses or arbitration clauses in their contracts to limit their future forum choices. Similarly, a company’s decision about where to incorporate or place its headquarters determines ex ante where it will be subject to general, all-purpose personal jurisdiction.9 A decision about where you drive your car can affect what fora may be available for later litigation over an accident. After a dispute arises, plaintiffs choose where to file the initial lawsuit, but defendants may also engage in forum shopping through motions for dismissal on jurisdictional grounds or change of venue under forum non conveniens or other doctrines. The kind of forum shopping that is most heavily criticized tends to be a narrower subset of practices condemned for their improper motivations. Courts frown upon what they perceive as plaintiffs choosing the most advantageous forum if they have made that choice for “unfair forum shopping reasons,” or to gain a “tactical advantage,” rather than for “convenience.”10 Others condemn certain specific practices, like duplicative litigation or filing in a court that lacks any colorable basis for exercising jurisdiction, as problematic forum shopping. Some scholars, on the other hand, point out that lawyers have an ethical obligation to file

8 See Tsilly Dagan. 9 See Daimler. 10 See Iragorri.

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 5 suit in the most favorable potential forum unless the argument that the court has jurisdiction is sanctionable.11 This Article contributes to the growing body of literature that probes the predominant negative attitude toward plaintiff forum shopping.12 It argues that both jurisdictional concurrence and forum choice itself can lead to unappreciated benefits, particularly in driving legal experimentation and reform. Forum choice can facilitate diffusion of ideas, policies, and institutions that address the challenges of private international law. And contrary to conventional wisdom, this diffusion is not in a uniquely “plaintiff- friendly” direction, but includes developments in varying directions favoring different constituencies. We see this happening today as states grow increasingly reluctant to exercise jurisdiction perceived to be “exorbitant,” expand and contract the extraterritorial reach of their laws, and experiment with collective action mechanisms to confront injuries affecting not only domestic but also transnational classes of individuals. This Article focuses on several case studies of forum choice contributing to this kind of experimentation and reform in the United States and Common- wealth and European states, but the observation may extend more broadly to other states and to choices between courts and other tribunals.

11 See Aaron D. Simowitz, A U.S. Perspective on Forum Shopping, Ethical Obligations, and International Commercial Arbitration, in Forum Shopping in the International Com- mercial Arbitration Context, 23-52 (Franco Ferrari, ed., 2013). 12 See also Ferrari; J. H. Ely, The Irrepressible Myth of Erie, 87 Harvard Law Review 693 (1974); M. G. Algero, In Defense of Forum Shopping: A Realistic Look at Selecting Ven- ue, 78 Nebraska Law Review 79 (1999); M. Petsche, What’s Wrong with Forum Shopping? An Attempt to Identify and Assess the Real Issues of a Controversial Practice, 45 Interna- tional Lawyer 1005 (2011); Friedrich K. Juenger, What's Wrong with Forum Shopping?, 16 Sydney L. Rev. 5, 13 (1994) (“[T]here must be a stop put to the customary, almost ritualistic, condemnation of forum shopping”); R. Maloy, Forum Shopping? What’s Wrong With That?, 24 Quarterly Law Review 25, 28 (2005); Kevin M. Clermont & Theodore Eisenberg, Exorcising the Evil of Forum-Shopping, 80 Cornell L. Rev. 1507, 1508 (1995) (arguing that “preserving the transfer-of-venue scheme is a good policy choice,” essentially because a defendant forum shopping is an appropriate counterweight to plaintiff forum shopping).

DRAFT—Please do not cite or circulate 6 BOOKMAN [6/16/2015

While forum shopping’s tendency to promote desirable experimentation and reform goes unappreciated, some criticisms of forum shopping also miss the mark. To be sure, duplication of litigation can be “costly and unfair”13 and extensive litigation over forum choice itself can burden both courts and litigants. And some forum shopping for the least efficient forum can lead to delay and even seemingly extortionate requests for settlement.14 But particularly in the transnational context, the unfairness that accompanies “decisional disharmony”—the idea that a case may come out differently depending on the forum—is both inevitable and in some ways desirable. Moreover, forum choices protect against a worse “evil”: the possibility of no forum being available at all. As Justice Jackson explained, “giv[ing] a plaintiff a choice of courts” is important “so that he may be quite sure of some place to pursue his remedy.”15 Likewise, the fear that forum shopping leads to inefficient, overly pro-plaintiff laws does not appear to be playing out and ignores a number of differences between the domestic and transnational realms, including the need for judgments to be recognized and enforced abroad. Part I lays out a broad and value-neutral definition of forum shopping and the judicial and scholarly objections to forum shopping. It first distinguishes domestic forum shopping (between federal and state courts in one or more U.S. states) and transnational forum shopping (as between courts in different nations). It explains that forum shopping can occur ex ante, before a dispute arises, or ex post; and can be done by plaintiffs or defendants. Both courts and legislatures can curb perceived excesses of, or expand opportunities for, forum shopping.

13 Clopton, Redundancy at 3. 14 See, e.g., Italian torpedo. 15 Gulf Oil Corp v. Gilbert, 330 U.S. 401, 507 (1945). The principle applies equally in international law. See Joost Pauwelyn & Luiz Eduardo Salles, Forum Shopping Before Interna- tional Tribunals: (Real) Concerns, (Im)possible Solutions, 42 CORNELL INT'L L.J. 77, 80 & n.15 (2009) (“Multiple courts are better than no courts at all.”) (collecting sources).

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 7

Part I then identifies three main objections to forum shopping: that it is unfair, wasteful, and inefficient.16 Opponents of forum shopping decry the unfairness of a system in which a case can come out differently depending on the forum in which it is brought, and in which the choice of forum lies with the one party (the plaintiff). The classic example is a case that has connections to two states, and the plaintiff chooses to file suit in the forum in which the statute of limitations has not yet run, or under whose substantive law the defendant would be subject to strict liability instead of a negligence standard. The perception that the plaintiff has a unilateral ability to manipulate the legal system leads many to condemn forum shopping as unfair. The same courts and scholars bemoan forum shopping for overburdening courts and wasting time and resources on jurisdiction disputes. Forum shopping is also criticized for leading to inefficient law as fora compete for plaintiffs by generating plaintiff-friendly procedures and substantive law.17 Part II identifies an unappreciated benefit of forum shopping: the promotion of experimentation and reform.18 Forum choices cause litigants to explore different options for where to bring suit, and require courts to assess the validity of those choices. In doing so, courts in the United States and Europe have come to reconsider some of the more widely criticized and “exorbitant” bases for jurisdiction that had long been part of these states’ legal traditions. In the United States, a company doing business in a state was once thought to be subject to general jurisdiction there. But the Supreme Court recently altered this conventional understanding and held that defendants are subject to general jurisdiction only where they are “at home,” bringing the United States

16 Other criticisms also abound, but can often be generalized to fit into one of these broad categories. See, e.g., Sykes, Transnational Forum Shopping as a Trade and Invest- ment Issue, 37 J. Legal Studies 339. 17 See, e.g., Dan Klerman and Greg Reilly, Forum Selling; Delaware (LoPucki). 18

DRAFT—Please do not cite or circulate 8 BOOKMAN [6/16/2015 closer into line with international practice.19 Likewise, the EU has been experimenting with ways of curbing “exorbitant” bases for jurisdiction in its Member States. Individual countries like France and Germany have come under heavy criticism for their use of plaintiff-based and in rem jurisdiction (respectively), which has led courts in those countries to limit the power of those bases for jurisdiction. Meanwhile, as experiments at universal jurisdiction falter,20 jurisdiction by necessity begins to gain ground.21 On the other side of the spectrum, creative forum choices and the desire to harness them have also contributed to the expan- sion of procedural reform in the collective action context. For example, after years of debate, the United Kingdom recently enacted a law that will permit collective actions for breaches of competition laws,22 which is predicted to cement the UK’s position as “the European forum of choice for private competition law claims.”23 As with so much collective action reform abroad,24 those developing the law viewed the American example as a cautionary tale.25 The UK “government said it would include a bevy of safeguards to avoid a U.S.-style litigation culture.”26 But nonetheless, the UK law is expected to encourage plaintiffs to file competition claims

19 Daimler; Goodyear; Silberman. 20 See infra. 21 See Nwapi, Jurisdiction by Necessity. 22 Tobias Caspary, How Antitrust Class Actions Will Work In The UK, Law360, Apr. 9, 2015, http://www.law360.com/articles/640749/how-antitrust-class-actions-will-work-in-the- uk (describing the Consumer Rights Act 2015). 23 Tobias Caspary, How Antitrust Class Actions Will Work In The UK, Law360, Apr. 9, 2015, http://www.law360.com/articles/640749/how-antitrust-class-actions-will-work-in-the- uk (“The combined impact of these changes is likely to be a significant increase in the number and type of competition-based damages claims brought in the U.K., with a corre- sponding increase in the likelihood that businesses will find themselves as claimants or defendants in such actions.”). 24 See R.L. Marcus, The Big Bad Wolf: American Class Actions, in Multi-Party Redress Mechanisms in Europe: Squeaking Mice? 35 (V. Harsagi and C.H. van Rhee 2014). 25 See, e.g., Kelemen; Jutras, The American Illness and Comparative Civil Procedure 168-69. 26 Melissa Lipman, Class Action Plan Could Make UK Europe's Antitrust Hotspot, http://www.law360.com/articles/410923/class-action-plan-could-make-uk-europe-s- antitrust-hotspot?article_related_content=1.

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 9 in UK courts. As another example, in Austria, the desire to aggregate claims and take advantage of European substantive privacy laws has led litigants to assign claims to each other in order to bring collective actions against American defendants like Face- book.27 Plaintiffs have also filed similar suits before the European Court of Justice.28 This second Part explores these events as case studies for how forum choice helps spread procedural mechanisms for ad- dressing the emerging needs of courts in a globalized economy. It draws on the sociolegal concept of “diffusion” as a mechanism for the spread of ideas among states. While these concepts often discuss the development of substantive law, this Part extends the analysis to explain how forum choices contribute to creating global laboratories of procedure. Part III then analyzes the criticisms of forum shopping. It argues that forum shopping, particularly on the transnational plane, is less problematic than is typically thought in part because disuniformity seems more justified and unavoidable as between nations than as between court systems in a given U.S. state, or even as between courts in different U.S. states. We expect less substantive or procedural harmony across nations. With respect to waste, some is undeniable and inescapable. But the core of the issue is limiting forum choices to those (often multiple) fora that have true, legitimate connections to the case. What that means, of course, is itself the subject of continuing experimentation and refinement. That legitimacy is continually being played out not only in the court of public opinion, but in courts around the world as they determine their own jurisdiction

27 See http://classactionblawg.com/2014/08/07/could-austrian-facebook-suit-breathe- new-life-into-the-global-class-action/. 28 See Shadia Nasralla & Angelika Gruber, Austrian student's lawsuit vs Facebook bogged down in procedure, http://www.reuters.com/article/2015/04/09/us-facebook- austria-lawsuit-idUSKBN0N019420150409.

DRAFT—Please do not cite or circulate 10 BOOKMAN [6/16/2015 or enforce other courts’ judgments. Forum shopping, as discussed in Part II, itself helps to hone this international perception. Part III argues that multiple constituencies and lawmaking forces protect against forum shopping driving courts and lawmakers to adopt overly plaintiff-friendly laws. The U.S. doctrinal trends making U.S. courts less attractive to litigation, particularly transnational litigation, refute such a notion. The United States may be competing instead in the “transnational law market” for a different set of constituents, large corporations who typically identify as defendants (at least in transnational tort contexts). Meanwhile, the European developments are not case studies in “forum selling” or a race to an overly plaintiff-friendly bottom. To the contrary, European authorities, in designing structures like collective action mechanisms, seem particularly wary of repeating the American plaintiff-friendly experience. And parallel litigations in U.S. and European courts reveal that some European procedures have succeeded in steering clear of replicating the American experience at least to the extent that plaintiffs are not faring as well in those courts as they once would have in the United States. In the “market for transnational litigation,” moreover, there should be an additional concern: the need to avoid an overly-defendant-friendly bottom, one which, ultimately, would lead to effective immunity and the lack of court access altogether. This should be the greater fear, and that recent developments expanding court access in at least certain circumstances are positive in this regard. Here, I compare and contrast the domestic and transnational contexts to show why the concern about court access is particularly salient in the transnational context, and the concerns about catering to plaintiffs, less so. Part IV calls for a greater embrace of forum shopping and suggests specific adjustments to the doctrine of forum non conveniens and international comity-based abstention to confront the revised picture of forum shopping painted here. This Article seeks to demonstrate an unappreciated benefit of jurisdictional choice and opportunities for forum shopping: the potential that this choice can provide global laboratories for different laws, particularly procedural laws, and drive beneficial re-

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 11 form. This view—and the evidence compiled here—contrasts with much of the anti-forum-shopping rhetoric, which often shows jurisdictional diversity as leading courts to compete for plaintiffs by offering particularly plaintiff-friendly “goods” in the form of procedural and substantive law. Although forum shopping can have negative consequences, this Article demonstrates that states’ solic- itude toward typical defendant constituencies and other forces provide a natural barrier to what many condemn as the most dire consequences of forum shopping.

I. WHO’S AFRAID OF FORUM SHOPPING?

Forum shopping may be our “national pastime,”29 but so is denouncing it. It is called “a dirty word,” “evil,” “deplorable,” and something that “must be deterred.”30 Countless laws and doctrines, it seems, are aimed at combatting forum shopping. That is one of the “twin aims” of Erie;31 the goal of the unification of substantive law in various areas;32 and a function of the doctrines of forum non conveniens.33 Exactly why forum shopping is so condemned, however, is less clear.34 And upon inspection, it quickly becomes clear that some kinds of forum shopping, most notably, ex ante forum shopping in contracts, is thought to be a good thing. Moreover, countering all of the laws combatting forum shopping is another flank of laws that permit or encourage it.35

29 30 See, e.g., Ferrari, Towards a Broad and Neutral Definition of Forum Shopping (collecting statements of detractors). 31 Hanna. 32 Ferrari, Forum Shopping Despite International Uniform Contract Law Conventions, 51 ICLQ 689 (2002). 33 See Iragorri; Silberman; see also Exorcising (domestically, transfer of venue motions are positive forces to counteract plaintiff forum shopping). 34 See Klerman & Reilly (saying this). 35 See, e.g., statutes permitting nationwide venue like FELA; treaties permitting forum in multiple countries; existence of specific and general jurisdiction.

DRAFT—Please do not cite or circulate 12 BOOKMAN [6/16/2015

This Part expands on Franco Ferrari’s call for a broad, value-neutral definition of forum shopping and draws distinctions among different subsets of forum shopping to differentiate between forum shopping the epithet and forum shopping the practice (or rather, practices). It then sets out the common criticisms of forum shopping as well as the arguments put forth by those who have tried to come to forum shopping’s defense. Even among the forum shopping defenders, the ultimate verdict on forum shopping appears to rely on the forum shopper’s purpose.

A. Variations on Forum Shopping

The definition of “forum shopping” is elusive.36 The term is “undeniably pejorative,”37 but it can refer to a wide variety of practices, many of which are actually encouraged by U.S., foreign, or international law.38 A classic American example exhibiting multiple instances of ex post forum shopping, including transnational forum shopping, is Piper Aircraft Co. v. Reyno.39 A Pennsylvania-manufactured airplane with Ohio-made propellers crashed in Scotland, killing the passengers. The California lawyer hired by the passengers’ next-of-kin (all of whom were Scottish citizens) appointed his legal assistant, Gaynell Reyno, to be the administratrix of the de- ceased passengers’ estates. Reyno, an American citizen living in California, filed wrongful death actions in California state court on the estates’ behalf against the Pennsylvania and Ohio based

36 See, e.g., Markus Petsche, What's Wrong with Forum Shopping? An Attempt to Identify and Assess the Real Issues of A Controversial Practice, 45 Int'l Law. 1005, 1006-08 (2011); Franco Ferrari, Toward a Neutral Definition, at 15 (noting that defining forum shopping is not easy because, inter alia, “forum shopping encompasses a broad range of actions, [and] … it lies on a continuum of activities, thus making the permutations of forum shopping almost limitless.” (internal quotation marks, alterations, and footnotes omitted)). 37 Bassett, The Forum Game, at 336; Atlantic Star v. Bona Spes, [1974] A.C. 436, 471 (opinion of Lord Simon) (“[f]orum shopping is a dirty word”); Teitz (forum shopping is the longest four letter word in transnational litigation). 38 Franco Ferrari, Toward a Neutral Definiton of Forum Shopping. 39 454 U.S. 235, 250 (1981).

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 13 manufacturers, alleging that mechanical problems with the plane or the propellers caused the crash. The case involved a series of ex post forum shopping moves. First, the plaintiffs’ lawyer appointed the California administratrix. She then filed suit in state court in California. Next, the defendants removed the case to federal court and then moved for a transfer of venue to Pennsylvania. Once the case was trans- ferred, the defendants forum shopped once again by filing a motion for forum non conveniens, arguing the case had closer ties to Scotland and should be heard there. The motion succeeded, but the plaintiffs never refiled in Scotland.40 Check mate defendants. A classic European example of ex post forum shopping involves what is known as the “Italian torpedo.”41 Imagine an American company, Inventor Co., patents a new invention in every country in Europe. A would-be infringer of the patent sues In- ventor Co.’s Italian subsidiary and all of its other European subsidiaries in Italy for a declaratory judgment of non-infringement. Because the European Union recognizes a strict lis pendens rule in favor of the first-filed court, “[o]nce the Italian courts are seised of the matter, none of the Inventor subsidiaries in the European Un- ion would be able to bring a patent-infringement action in its own country.”42 Moreover, because the European Union does not recognize forum non conveniens,43 defendants have little ability to “reverse forum shop” as they might in the United States.44 The would-be infringer chose Italy, however, because its courts are

40 “[I]n Piper, … no lawyer found it worthwhile to pursue litigation in the United Kingdom. In practice, then, granting forum non conveniens is often tantamount to granting substantive dismissal, without the presentation of one shred of evidence on the merits.” Richard D. Freer, Refracting Domestic and Global Choice-of-Forum Doctrine Through the Lens of A Single Case, 2007 B.Y.U. L. Rev. 959, 974 (2007). 41 See also Gasser v. MISAT (C-116/02) (ECJ). 42 Hartley, at 143-144. 43 Owusu v. Jackson. 44 See Litigation Isolationism.

DRAFT—Please do not cite or circulate 14 BOOKMAN [6/16/2015 notoriously slow. During the eight or ten years of Italian proceedings, the infringer could continue to infringe throughout Europe.45 Which of these practices constitute forum shopping? Which are legitimate or illegitimate? The answer to the first question depends on your definition of forum shopping. The answer to the second often depends on one’s view of the legitimacy of the reasons motivating the plaintiffs’ (and the defendants’) choices. The confusion over what “forum shopping” even means complicates the conversation about it and the widely accepted condemnation of it. In one narrow sense, forum shopping refers to a plaintiff’s choice of where to file her lawsuit. Under that definition, that practice may be viewed as “neither bad nor good.”46 But other definitions describe particular practices that seem decidedly unfair, inefficient or both. Some refine the term further to mean the choice of a forum intended to gain an unfair “tactical advantage,” rather than for “convenience.”47 One Canadian court defined it as seeking to “gain a juridical advantage” by filing in a forum without any legitimate connection to the dispute (i.e., trying to file a suit in a forum that lacked or should lack jurisdiction).48 Others equate forum shopping with the practice of filing duplicative lawsuits in multiple fora.49 Franco Ferrari recently urged the adoption of a broad, value-neutral definition of forum shopping: “the choice in favour of a given forum, based on the conviction that the chosen forum is the

45 Hartley, at 143-144. 46 Zywicki. 47 See Iragorri. 48 Holt Cargo Sys. Inc. v. ABC Containerline N.V. (Tr. of), 1999 WL 807157 (Fed. C.A. Mar. 12, 1999) (“If a party seeks out a jurisdiction simply to gain a juridical advantage rather than by reason of a real and substantial connection of the case to the jurisdiction, that is ordinarily condemned as “forum shopping“.”). Of course, this passage does not make clear if such a practice is the entirety of the definition of forum shopping, or just one subset of the practices that constitute forum shopping. 49 Ronald A. Brand, Challenges to Forum Non Conveniens, 45 N.Y.U. J. Int'l L. & Pol. 1003, 1004 (2013).

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 15 most favourable one for the purpose of reaching a given result.”50 This understanding encompasses both ex ante forum shopping (forum choices before a dispute arises, e.g., through forum selection clause or an arbitration clause in a contract,51 or by locating businesses or assets in certain places), and ex post forum shopping (forum choices after a dispute arises, e.g., when a plaintiff selects a forum in which to sue). In the United States, at least,52 it can be done by plaintiffs or by defendants, for example through forum non conveniens motions. While domestic forum shopping involves choices between state and federal courts in one state in one or more states, this Article focuses on transnational forum shopping, e.g., when a plaintiff chooses among two or more national courts, or when a defendant moves for dismissal in favor of a foreign forum under forum non conveniens.53 In addition, “forum shopping is not necessarily a one-shot activity, but rather an activity that . . . may occur more than once” in a given case.54 But under the broad definition of forum shopping, other examples should come to mind as well. There is defendant settlement shopping, where defendants settle class actions with the most favorable plaintiff lawyers they can find to represent a na- tional55—or even global56—class. The Bilateral Investment Treaty regime is a kind of ex ante forum shopping where nations seek to assign an international investment arbitration tribunal as a forum

50 Franco Ferrari, Toward a Neutral Definition of Forum Shopping 23; see also id. at 22 (“any definition of forum shopping has not only to be value neutral, as suggested earlier, but also comprehensive of all of the foregoing types of forum shopping”). 51 Another recent innovation in forum blocking recently appeared in the form of “los- er-pays” fee shifting bylaws and charter provisions. See John C. Coffee, Jr., Delaware Throws a Curveball, http://clsbluesky.law.columbia.edu/2015/03/16/delaware-throws-a- curveball/. 52 Cf. Italy. 53 Parties may also shop among international tribunals, arbitral tribunals, and other fora. See, e.g., Joost Pauwelyn & Luiz Eduardo Salles, Forum Shopping Before International Tribunals: (Real) Concerns, (Im)Possible Solutions, 42 Cornell Int’l L. J. (2009). 54 Franco Ferrari, Toward a Neutral Definition of Forum Shopping at 33. 55 [CAFA] 56 See WCAM.

DRAFT—Please do not cite or circulate 16 BOOKMAN [6/16/2015 for potential disputes between investors from their country and the host state. Traditionally, BITs established this kind of regime to protect investments in countries with weak judicial systems, but today international investment arbitration tribunals provide a forum for entertaining disputes arising out of investments in many countries, including the United States.57 Statutes like CAFA, the German Deutsche Telekom Act, and the UK antitrust statute, meanwhile, result from forum shopping by lobbying.58 Strategic litigant behavior that is typically the target of those who condemn forum shopping would of course continue to fall under this broad forum shopping umbrella. For example, plaintiffs may make an alternative forum unavailable through their deliberate conduct—like not including certain defendants or opting to miss a statute of limitations deadline—in order to avoid a forum non conveniens dismissal.59 Likewise, duplicative litigation, either in the form of simultaneous, parallel litigation in multiple fora60 or iterative litigation as an attempt at a “second bite at the apple” would fall under the definition of forum shopping. This broad definition encompasses forum shopping that occurs before, during, and after litigation; in domestic and transnational contexts; by plaintiffs and defendants; and, importantly, covering practices that may seem intuitively positive, neutral, or negative (depending on one’s point of view). These are all practic-

57 See Rudolf Dolzer & Christoph Schreuer, Principles of International Investment Law (2012). 58 Purcell. 59 See, e.g., In re Air Crash Over the Mid-Atl. on June 1, 2009, 792 F. Supp. 2d 1090, 1094 (N.D. Cal. 2011) (“‘A party should not be allowed to assert the unavailability of an alternative forum when the unavailability is a product of its own purposeful conduct.’ ” (quoting In re Compania Naviera Joanna S.A. v. Koninklijke Boskalis Westminster NV, 569 F.3d 189, 203 (4th Cir.2009)); Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689, 694 (9th Cir. 2009) (affording reduced deference to forum choice where “Vivendi Holding did not ac- quire Everest's Elektrim bonds and was not added as a plaintiff until after T–Mobile filed its first motion to dismiss for forum non conveniens, seven months after Vivendi S.A. originally had filed suit. Vivendi even concedes that Vivendi Holding acquired the Elektrim bonds for the purpose of, among others, strengthening its U.S. connections to the case”). 60 See, e.g., Parrish, GW L. Rev.

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 17 es made possible by the confluence of two factors: overlapping claims of jurisdiction by two or more court systems and the availability of litigant choices or influence. The breadth of the definition also calls into doubt the self-defining nature of the use of forum shopping as a pejorative term. If forum shopping is only forum shopping when it is driven by “improper” plaintiff motives, or leads to unfairness, then to call the practice forum shopping— and to sanction it on that basis—begs the question. This section therefore has laid out a broad definition of forum shopping and has parsed its various subparts in order to facilitate the discussion that follows, including an evaluation of why forum shopping has its “bad rap.”61

B. Standard Critiques

As we have seen, forum shopping under this broad definition affects a huge number of lawsuits. The prevailing view, it is said, is that forum shopping “is necessarily ‘bad’ and should thus be avoided or prohibited.”62 Many scholars accept that forum shopping is “evil” on both the domestic63 and international lev-

61 Petrossian. 62 Markus Petsche, What's Wrong with Forum Shopping? An Attempt to Identify and Assess the Real Issues of A Controversial Practice, 45 Int'l Law. 1005, 1006 (2011); Ferrari, Toward a Neutral Definition (describing Italian and civil law definition of forum shopping as done only by plaintiffs). But cf. infra (discussing defenders of forum shopping). One wonders whether this view has become a strawman. But scholars continue to criticize transnational forum shopping in recent years. See, e.g., Morrison (Shangri-La comment); Sykes, Forum Shopping as Trade and Investment Issue; Hartley, How to Abuse the Law (2002); see also Klerman & Reilly (domestic forum shopping is bad because it promotes forum selling); J. Jonas Anderson, Court Competition for Patent Cases, 163 U. Pa. L. Rev. 631, 637 (2015) (“Forum shopping has fundamentally altered the landscape of patent litigation in ways detrimental to the patent system as a whole”). 63 See, e.g., Alan Trammell, Toil and Trouble, Fordham L. Rev at 3272 (“The idea that forum shopping is inherently evil has become part of the received wisdom about Erie.”); id. (“Scholars largely have accepted that received wisdom[.]”)(collecting scholarship) [e.g., Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology As "Law" and the Erie Doctrine, 120 Yale L.J. 1898, 1935 (2011) (“the importance of state decisional law is one key holding of Erie, and to hold otherwise would encourage forum shopping”). But see Tram- mell, Fordham, at 3272 (“forum shopping … is not an evil in itself”).

DRAFT—Please do not cite or circulate 18 BOOKMAN [6/16/2015 els,64 and the law responds in a variety of ways to curb forum shopping.65 These criticisms and responses usually refer to ex post plaintiff forum shopping, i.e., a plaintiff’s selection of a forum to adjudicate the dispute after the dispute arises. Ex post defendant forum shopping, e.g., through change of venue motions, sometimes receives similar criticism.66 But such measures, as well as forum non conveniens—the key defensive forum shopping tool in U.S. litigation—is often seen as a necessary countermeasure to the excesses of ex post plaintiff forum shopping.67 Ex ante forum shopping, on the other hand, typically achieved through a forum- selection or arbitration clause in a contract, is widely applauded and encouraged.68 Although forum shopping is widely condemned, scholars frequently note that why exactly forum shopping has its bad rap is unclear.69 Indeed, countless provisions of domestic, foreign, and international law deliberately provide opportunities for forum choice.70 But one can glean some consistent themes in the criti-

64 Teitz, calling forum shopping “the longest four letter word in international litigation.”; Ferrari, Forum Shopping in the International Commercial Arbitration Context: Set- ting the Stage 2 (“The anti-forum shopping stance is, however, not only characteristic of given national legal systems; it can also be discerned on a wider basis.”); see id. at 2-3 (describing EU efforts to combat forum shopping); id. at 3 (“By way of example, it may suffice to recall that one of the declared major goals behind the drafting of the 1980 United Nations Convention on Contracts for the International Sale of Goods is, according to the UN- CITRAL Secretariat, ‘to reduce the search for a forum with the most favourable law.’”). 65 See Franco, Toward a Neutral Definition, at 2-7. 66 See Exorcising (collecting sources). 67 See Exorcising, Petsche, Silberman. 68 See, e.g., Atlantic Marine; Ferrari (describing reasons why parties would choose arbitral forum in contracts). 69 “Forum shopping is frequently decried, but there is little consensus about why it is bad or whether the problem is serious.” Klerman & Reilly, Forum Selling, at 2. Some scholars defend it. See, e.g., Zywicki, Is Forum Shopping Currupting America’s Bankruptcy Courts?, 94 Geo. L. Rev. 1141, 1146 (2006) (jurisdictional competition can be either “good” or “bad,” depending on “the institutional structure surrounding it and the incentives of the parties partaking in it”). Redish & Phillips, Erie and the Rules of Decision Act: In Search of the Appropriate Dilemma, 91 Harv. L. Rev. 356 (1977). 70 See, e.g., diversity jurisdiction, transfer of venue statute; Simowitz, Forum Shop- ping, at 51 (“[T]he US system is replete with mechanisms of forum access and forum selec- (continued next page)

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 19 cisms of forum shopping—foremost among them, the concerns that it leads to unfairness, wastefulness, and inefficiency.71

1. Unfairness

The first concern is the lack of “decisional harmony.”72 The principal unfairness resulting from forum shopping is that identi- fied in Erie: the idea that a suit will turn out differently depending on which forum the plaintiff chooses is thought to violate some principles of equality.73 This negative opinion of forum shopping is shared throughout the world.74 Erie Railroad Company v. Tompkins is often our first introduction to this “evil.” In Erie, a Pennsylvania man walking along a railroad track was injured by a passing train owned by Erie Rail- road.75 He chose to sue Erie in federal district court in New York (Erie’s home state), rather than state or federal court in Pennsyl- vania, where the accident occurred.76 He presumably hoped that the New York court would, as it did, apply general federal com-

tion that are fundamental, inextricable, and perhaps ineradicable.”); French article 14; [other foreign law provisions]; treaty provisions allowing suit in multiple fora; see Ferrari, Toward a Neutral Definition; Van Dusen; Ferens; Keeton v. Hustler. 71 See, e.g., Ferrari, Definition (cataloging expressions of concern). 72 Markus Petsche, What's Wrong with Forum Shopping? An Attempt to Identify and Assess the Real Issues of A Controversial Practice, 45 Int'l Law. 1005, 1010 (2011); see also Hart, The Concept of Law, 1961, 155 (describing the importance of “decisional harmony”). “Decisional harmony,” or “uniform outcomes for similar cases” is the primary objective of choice of law rules in Europe. See Kimberly A. Moore & Francesco Parisi, Rethinking Fo- rum Shopping in Cyberspace, 77 Chi.-Kent L. Rev. 1325, 1329 (2002). 73 See, e.g., Ely, supra __; Ferrari, FS in Intl Commerical Arb, at 3 (citing G. S. Koppel, Toward a New Federalism in State Civil Justice: Developing a Uniform Code of State Civil Procedure Through a Collaborative Rule-Making Process, 58 Vanderbilt Law Review 1167, 1191 (2005) (stating that forum shopping promotes the “risk that similarly situated litigants may be treated differently and, as a result, unfairly”)); Sykes; Kimberly A. Moore & Fran- cesco Parisi, Rethinking Forum Shopping in Cyberspace, 77 Chi.-Kent L. Rev. 1325, 1332 (2002) (In other words, “It is a fundamental tenet of any legal system that the law ought not be manipulable and its application ought to be uniform.”). 74 See, e.g., Goliath Portland Cement Co Ltd. v. Bengtell (1994) 33 NSWLR 414, 435 (Austl.). 75 304 U.S. 64 (1938). 76 Id.

DRAFT—Please do not cite or circulate 20 BOOKMAN [6/16/2015 mon law rather than Pennsylvania law, and enter judgment against the railroad. The Supreme Court reversed, famously an- nouncing that there is no general federal common law,77 which thwarted Mr. Tompkins’ attempt to “game” the system. Although such general law had been intended “to promote uniformity” throughout the United States, in fact it “prevented uniformity in the administration of the law of the state.”78 In other words, a train accident in Pennsylvania should uniformly be governed by Penn- sylvania law; the existence of an alternative, general source of law undermined the uniformity and predictability of the law.79 John Hart Ely argued that “forum shopping is . . . evil only if something evil flows from it,”80 and Erie pointed to a twofold “evil” stemming from the existence of diversity jurisdiction and the forum choice that it allows: first, it’s unfair to a local defendant if a nonresident plaintiff has a unilateral choice of forum and thus of applicable law; and second, it’s unfair to a nonresident defendant if a local plaintiff has that same choice.81 Erie sought to fix the problem by designating that state law should apply regardless of the plaintiff’s unilateral choice of forum, and eliminating the alternative general federal common law as a potential competing source of law. Erie, and later Klaxon, sought to establish this uniformity by requiring uniform choice of law rules in state and federal courts in the same state.

77 Id. 78 Id. at 75. 79 Erie was more concerned with intrastate forum shopping than with interstate forum shopping in part because the former was vastly more relevant, at the time, to the realities of litigation. As Ed Purcell has argued, Erie “had some potential to increase incentives for interstate forum shopping” but the Court “discounted that possibility” in part because, as between inter- and intra-state forum shopping, the latter was more of a concern. “Erie pro- tected the 95 percent of individual plaintiffs who sued, usually out of necessity, in their home states.” Purcell, Litigation and Inequality at 229. 80 John Hart Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693, 710 (1974). 81 John Hart Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693, 712 (1974).

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 21

On the transnational level, this lack of uniformity can take on new heights.82 One is the potential unfairness that comes from the lack of consistent choice of law rules across countries. If Mr. Tompkins had been walking along a track in Germany, for example, when he was hit by a train made by Erie, a German court would presumably apply the law of the place of the tort, i.e., German law; but a New York court might be more likely to apply its own law.83 The resulting unfairness is both that the cases would come out differently based on the forum and that the Erie might have assumed that German law was governing its conduct. But even if choice of law rules were uniform,84 one might still be able to take advantage of procedures in U.S. court—like aggregating on an opt-out basis, or obtaining extensive pre-trial discovery—in ways that benefit the plaintiff. Traditionally, a prominent complaint lobbed at forum shopping targets foreign plaintiffs seeking to sue in the United States over transnational torts to take advantage of favorable U.S. procedures, choice of law rules, and substantive law.85 In such cases, American resident defendants are potentially subject to suits in the United States but foreign companies acting alongside them might not be because local courts are effectively unavailable. The alleged unfairness, then is often being subject to suit at all where a similarly situated foreigner would not be.86

82 Andrew Bell, Forum Shopping and Venue in Transnational Litigation 90 (2003) (“[A]s a result of lack of uniformity at the levels of procedural law, substantive principle, and choice of law rules throughout the international legal system, very different results may obtain in the resolution of any given legal dispute according to the forum in which that dispute is tried.”). 83 See, e.g., Kalb, Voorhis & Co. v. American Fin. Corp., 8 F.3d 130, 132 (2d Cir.1993) (quoting Intercontinental Planning, Ltd. v. Daystrom, Inc., 248 N.E.2d 576, 582 (1969)) (New York has abandoned lex loci delicti for interest analysis). 84 Discuss Rome I and II. 85 See Litigation Isolationism; Alan Sykes. [cite cases like Morrison]. 86 We should not confuse here the questions of whether a given forum is fair with the question of whether it is fair for the plaintiff to get to choose among several (potentially fair) fora. Some objections to transnational forum shopping, especially in the Alien Tort Statute context, are that the U.S. is exercising unfair universal jurisdiction. That is an argu- (continued next page)

DRAFT—Please do not cite or circulate 22 BOOKMAN [6/16/2015

This unfairness is thought to inhere when the plaintiff is seen to have a unilateral forum choice. Ex ante forum choices through forum selection and arbitration clauses, by contrast, are bilateral and seem to avoid this unfairness. Such forum choice is seen as an opportunity for a “race to the top” among fora and arbitral tribunals “competing” for parties to choose them through such clauses87 and as a way to enhance predictability.88 But even in the contract context, ex ante forum selection can lead to unfairness—and, ultimately, the denial of a forum altogether. The simple example is a contract of adhesion, in which forum-selection clauses and arbitration clauses can effectively de- ny the weaker bargainer any access to justice.89 European authorities tend to recognize this danger and not enforce forum selection clauses in consumer contracts where parties have unequal bargaining power.90 In the United States, however, such plaintiffs

ment about the “rules” for the “forum game.” The unfairness discussed here is the argument that it’s unfair for the plaintiff to get to choose. 87 See, e.g., Klerman and Reilly (arguing that in the arms-length contract setting, parties will seek out the forum that provides the most fairness and stability); Rasmussen & Thomas, Whither the Race? A Comment on the Effects of the Delawarization of Corporate Reorganizations, 54 Vand. L. Rev. 283, 291 (2001) (“To the extent that there is a problem with forum selection, it is not that there are too many forums to choose from; rather, there are too few. Bankruptcy judges evidently want to attract these cases to their courts. Compe- tition can be a good thing. The key to our proposal is to change the time at which the selection is made. We have proposed that venue rules be changed so that firms can commit in advance to filing in any particular jurisdiction in the event that a reorganization is necessary.”). 88 Kimberly A. Moore & Francesco Parisi, Rethinking Forum Shopping in Cyberspace, 77 Chi.-Kent L. Rev. 1325, 1328-29 (2002) (“Ex ante agreements, if enforced without excep- tions, enhance predictability by allowing the parties to choose among several competing laws and jurisdictions. By contrast, ex post choice of forum generates unpredictability in the system.”). 89 Cites; Maria Glover; Judith Resnik; Ori Aronson at 75-76 (“The capacity of certain parties to influence ex-ante the future choice of forum and of initiating parties to choose the forum can often empower strong, well-off, and sophisticated parties--Marc Galanter's “haves.” Those parties with better information (or the means to invest in information- gathering), with a greater capability for strategic planning and behavior, and with an ability to act quickly upon the initiation of litigation are more likely to make beneficial use of jurisdictional concurrence.”). 90 See also Symeonides, The Hague Principles on Choice of Law for International Con- (continued next page)

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 23 would likely be denied any access to a class action, and likely any relief, by virtue of the arbitration clause.91

2. Wastefulness

At both the domestic, transnational, and international levels, forum shopping may disproportionately overburden certain courts.92 It can also be wasteful and inefficient insofar as it drives parties to spend time and resources determining the best forum and litigating over it, and causes courts to spend time and resources adjudicating these preliminary matters.93 Under certain circumstances, it may also lead some parties to shop for the slow- est forum, as in the Italian torpedo example, which leads to wastefulness as well as unfairness and inefficiency.94 Ori Aronson, for example, describes a competitive dynamic among fora vying for plaintiffs to choose among them. He acknowledges that “[t]his competitive dynamic is not necessarily wasteful as forums might be driven to improve the quality of justice they provide.”95 But, he warns, it can lead to “monopolistic results (e.g., the Delaware chancery court is often viewed in such terms) or to a self-defeating ‘race to the bottom.’”96 Supply-side competition can also be wasteful when forums attempt to attract

tracts: Some Preliminary Comments, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2256661. 91 See, e.g., Concepcion; Judith Resnik, Maria Glover, Myriam Gilles. 92 Ferrari, at 5 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). 93 See, e.g., Gottesman, Dismal Swamp, at 12 (discussing wastefulness of choice-of-law inquiries); Aronson at 74 (“[N]ormally investing resources in this kind of strategic planning--gathering information on beneficial forums followed by strategic forum shopping--is socially wasteful.”); Markus Petsche, What's Wrong with Forum Shopping? An Attempt to Identify and Assess the Real Issues of A Controversial Practice, 45 Int'l Law. 1005, 1010 (2011). 94 Cite; see supra. 95 Aronson, at 75 (citing Roberta Romano, Law as a Product: Some Pieces of the Incor- poration Puzzle, 1 J.L. ECON. & ORG. 225, 227-32 (1985) (reviewing literature that has “outlined the economic forces that would generate beneficial state competition” in the corporate registration market)). 96Aronson, at 75.

DRAFT—Please do not cite or circulate 24 BOOKMAN [6/16/2015

“valued” litigants or cases, such as those that are more interesting, more famous, more income-generating, or cheaper to resolve (thanks to better evidence, for example).”97

3. Inefficiency

Relatedly, scholars, including Aronson and others, also argue that forum shopping may compromise the “most efficient” selection of law and forum to the extent that it instead promotes strategic choices of both those things.98 In the domestic context, Dan Klerman and Greg Reilly have developed the interesting thesis that under certain circumstances, forum shopping is “evil” because it can lead to “forum selling,” or the development in certain courts of overly (inefficiently) plaintiff-friendly procedural practices.99 They argue that plaintiffs who choose the forum do not “prefer adjudication that maximizes social welfare,” but rather, they seek out “courts that increase their expected recoveries, min- imize their costs, and reduce delay,” and therefore a plaintiff- choice model for forum selection leads to a race to the bottom under certain circumstances.100 The authors recognize that “most courts and judges are inefficiently pro-defendant,” 101 and so a pro- plaintiff bias to forum-shopping could redress that inefficiency.102

97 Aronson, at 75. 98 Moore and Parisi, Rethinking Forum Shopping in Cyberspace, Chi-Kent L. (“with ex ante choice of law, parties can select more efficient rules to govern their contractual relationship. Conversely, the ex post choice of forum is strategically determined, and the equi- librium solution of a forum shopping game is not likely to produce the most efficient choice of law and jurisdiction.”). 99 See Klerman & Reilly, Forum Selling, S.Cal. L. Rev. 100 Klerman and Reilly at 4. 101 See also Ori Aronson, Forum by Coin Flip: A Random Allocation Model for Juris- dictional Overlap, 45 Seton Hall L. Rev. 63, 76 (2015): “It is true that in some classes of cases, the initiator's choice model seems to benefit the paradigmatically worse-off party. Con- sider civil rights cases, consumer protection actions, and certain employment-related suits: the initiator of the litigation is normally the weaker party in the dispute in all three classes of cases. It would seem, then, that at least in these contexts, the initiator's choice model in fact helps to empower the worse-off parties.” 102 Klerman and Reilly at 4.

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 25

But they say that their examples show that “forum selling” is an overcorrection of that inefficiency. The classic example is the ability of the Eastern District of Texas, located in a rural corner of that state, to attract over a quar- ter of the patent litigation filed in the United States.103 Because venue may be appropriate for patent cases essentially anywhere in the United States, plaintiffs have many choices for where to file their patent suits, and enterprising district courts can shift their practices—including procedural rules—to attract them if they are so inclined.104 In Forum Selling, the authors do not argue that forum selling happens all the time. “In fact,” they say, “forum selling is relatively rare in large part because, in most situations, jurisdictional rules give plaintiffs only a few places they can sue. What makes the patent, bankruptcy, mass tort, and class action rules different is that they effectively give litigants the ability to sue anywhere, and thus give motivated courts the ability to attract a large frac- tion of that litigation.”105 But their concern seems to be with a vast variety of forum choices, making it more likely that the anoma- lous “motivated court” will take advantage of that choice and draw in litigation from a broad geographical base. Even Klerman and Reilly appreciate the importance of some degree of forum choice, which is why, for example, they suggest revising the patent venue regime to include two forum options—suit in the defendant’s principal place of business, as Jeanne Fromer has suggested,106 as well as suit “in the defendant’s largest market for the allegedly infringing product.”107

103 Klerman and Reilly. 104 See Klerman and Reilly; John Oliver, Patent Trolls, https://www.youtube.com/watch?v=3bxcc3SM_KA (Apr. 19, 2015). 105 Klerman and Reilly at 49. 106 Klerman and Reilly at 50 (citing Jeanne Fromer, Patentography, NYU L. Rev.). 107 Klerman and Reilly at 50.

DRAFT—Please do not cite or circulate 26 BOOKMAN [6/16/2015

C. Combatting Forum Shopping

Several U.S. laws seek to combat domestic forum shopping, including Erie’s abolition of general federal common law, transfer of venue provisions, section 1404, and removal. Jurisdic- tion principles cabin forum choices. Attempts at imposing uniformity on choice of law rules likewise target forum shopping.108 Many if not all of these serve double duty at curbing the breadth of transnational parties’ choices as well. A few doctrines are spe- cially designed for that task, including forum non convenines, international comity-based abstention, and the statutory presumption against extraterritoriality. Forum non conveniens is one of the principal weapons used to combat transnational forum shoppers in common law courts.109 Forum non conveniens is a “federal common-law venue rule”110 that today, in the U.S. federal courts, applies only in transnational cases.111 While plaintiffs generally enjoy a strong presumption of deference to their choice of forum, under the doctrine of forum non conveniens, foreign plaintiffs lose this deference on the assumption that it is less likely that they chose the forum out of convenience.112 In several circuits,113 deference is accorded on a

108 See Uniform COL Act. 109 Other doctrines that aim to discourage forum shopping include the presumption against extraterritoriality, see Morrison (Shangri-La) and recent developments in general jurisdiction, see Daimler. See generally Litigation Isolationism. 110. Am. Dredging Co. v. Miller, 510 U.S. 443, 453 (1994). 111. 28 U.S.C. § 1404 (2013), which authorizes transfers among federal district courts, has supplanted forum non conveniens in the domestic federal context. See Elizabeth T. Lear, Congress, the Federal Courts, and Forum Non Conveniens: Friction on the Frontier of the Inherent Power, 91 IOWA L. REV. 1147, 1149 (2006). 112. Id. at 255-56; see, e.g., Tech. Dev. Co. v. Onischenko, 174 F. App'x 117, 121 (3d Cir. 2006); Iragorri v. United Techs. Corp., 274 F.3d 65, 71–72 (2d Cir.2001) (noting that the more it appears that a foreign plaintiff's choice of forum was dictated by reasons the law deems legitimate, the more deference it should receive); Norex Petroleum Ltd. v. Access Indus. Inc., 416 F.3d 146, 154 (2d Cir.2005) (same). 113 Iragorri (2d); Onischenko (3d); First Circuit has not resolved “whether a district court, before conducting the ... forum non conveniens analysis, should accord a plaintiff's choice of a home forum ‘heightened deference’ ” or ordinary deference.” Interface Partners (continued next page)

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 27 sliding scale depending on the extent to which the plaintiff’s forum choice was motivated by “reasons that the law recognizes as valid,” like “the convenience of the plaintiff's residence in relation to the chosen forum, the availability of witnesses or evidence to the forum district, … and other reasons relating to convenience or expense,” as opposed to “forum-shopping reasons—such as attempts to win a tactical advantage.”114 As a result, the doctrinal analysis has developed in some circuits to involve three steps: first, is there an alternative available forum; second, what amount of deference is due the plaintiff’s forum choice; and third, does a multifactor balancing test weigh in favor of dismissing the case.115 Large numbers of cases brought by foreign plaintiffs are dismissed under this analysis. In Europe, forum non conveniens is not available.116 But the doctrine of lis pendens, which favors the first filed case, protects against duplicative parallel litigation. The EU has also developed relatively strict, uniform choice of law principles to protect against forum shopping.117

D. Defenders of Forum Shopping

In recent years, some scholars have come to the defense of forum shopping as “neither good nor bad,”118 “a legitimate prac-

Int'l, Ltd. v. Hananel, 575 F.3d 97, 101 (1st Cir.2009); Compania Naviera Joanna SA v. Kon- inklijke Boskalis Westminster NV, 569 F.3d 189, 2009 A.M.C. 1626, 1655 n.4 (4th Cir. 2009) (“there is some support for considering the motives of the party that commences the action”); DiFederico v. Marriott Int'l, Inc., 714 F.3d 796, 802 (4th Cir. 2013) (according heightened deference to plaintiff’s choice of home forum); Indusoft, Inc. v. Taccolini, 560 F. App'x 245, 250 (5th Cir. 2014), as revised (Mar. 20, 2014) (referring to “heightened burdens required for forum non conveniens dismissal”); 114 Iragorri v. United Technologies Corp., 274 F.3d 65, 71-72 (2d Cir. 2001). 115 See, e.g., Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir.2005); In re Bernard L. Madoff Inv. Sec. LLC, 525 B.R. 871, 889 (Bankr. S.D.N.Y. 2015). 116 See, e.g., Owuku, other UK case w/ non EU parallel litigation. 117 See, e.g., Symeonides on Rome II. 118 Zywicki.

DRAFT—Please do not cite or circulate 28 BOOKMAN [6/16/2015 tice,”119 or a positive good.120 Transnational scholars like Franco Ferrari have also begun to push for a broad, value-neutral definition of forum shopping.121 These studies tend to focus on the same thing forum shopping’s critics condemn: the motivations behind litigants’ forum choices. Critics disparage forum-shopping plaintiffs for choosing a forum “for forum shopping reasons”122 as opposed to other, more legitimate ones;123 defenders maintain that everyone uses forum shopping reasons.124 These defenders recognize that “forum shopping motives”—the intention to extract some benefit from a court’s exercise of jurisdiction—are pervasive, but they still rest their normative evaluation of any given forum choice on the “real reason” for litigants’ choices. In the domestic context, for example, Professor Bassett, creating a typology of forum shopping based on the kind of advantage the litigant is shopping for,125 contends that “[a] full analysis of forum shopping requires examining whether any or all of [the potential decisionmaking] considerations [behind a forum choice] contribute to the complaints leveled at forum selection.”126 In the transnational context, Professor Ferrari contends that a

119 Debra Lyn Bassett, The Forum Game, 84 N.C. L. Rev. 333, 391 (2006). 120 See, e.g., Linda Mullenix, The American Class Action Fairness Act and Forum Shopping American-Style, 31 The Geneva Papers 357 (2006) (“forum shopping also is an attribute of good lawyering, and the failure to take into account forum advantages and disadvantages also might be tantamount to malpractice in certain circumstances”). 121 Ferarri. 122 Iragorri. 123 It is rarely acknowledged that this is in tension with the principle that “penalizing litigants with nonfrivolous claims because of their purposes for bringing those claims raises concerns under the First Amendment right to petition.” See Jerold S. Solovy et. al., Sanc- tions Under Rule 11: A Cross-Circuit Comparison, 37 Loy. L.A. L. Rev. 727, 740 (2004); Carol Rice Andrews, Motive Restrictions on Court Access: A First Amendment Challenge, 61 Ohio St. L.J. 665 (2000). 124 See, e.g., Debra Lyn Bassett, The Forum Game, 84 N.C. L. Rev. 333, 343 (2006) (“forum shopping is, at its core, merely the decision that a lawyer makes when more than one lawful forum is available”). 125 Debra Lyn Bassett, The Forum Game, 84 N.C. L. Rev. 333, 343 (2006). 126 Debra Lyn Bassett, The Forum Game, 84 N.C. L. Rev. 333, 343 (2006).

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 29 broader definition of forum shopping “makes clear that the results aimed at, and the reasons for a choice of one forum over another do not have a bearing on the definition of forum shopping itself. They may impact, however, the specific choice’s acceptability or permissibility.”127 Forum-shopping defenders also stress the importance of forum shopping within the “forum game,” for example, the importance of forum shopping as a component of zealous advoca- cy.128 When seen through the broad definition laid out here, the argument that forum shopping practices are simply a part of the “forum game” rings true.129 Potential plaintiffs and defendants parry and thrust in various ways beginning long before a dispute ever arises. At every step of the way, litigants seek out the forum they believe offers them the greatest advantage. In the relatively confined context of domestic litigation, moreover, the rules of the game, and how one might change them, are relatively clear. But to explain that rules that allow forum shopping are part of a game begs the question. Many of the rules governing forum choices transnationally are subject to the inaptly named rules of private international law (or conflicts of laws), which are in fact domestic law rules pertaining to personal jurisdiction, choice of law, and enforcement of foreign judgments.130 What are these rules, what should they be, and how are they developed? The next Part turns to the last question and explores how forum choices contribute to the development of rules governing domestic procedure in transnational litigation.

127 Ferrari, Toward a Neutral Definition 24. 128 See, e.g., Mullenix; Simowitz. 129 See Basset, The Forum Game. 130 See R. Michaels

DRAFT—Please do not cite or circulate 30 BOOKMAN [6/16/2015

II. GLOBAL LABORATORIES OF PROCEDURE

As we have seen, forum shopping is often regarded as a negative consequence of overlapping jurisdiction. This is true of domestic forum shopping as well as transnational, though much more of ex post forum shopping than ex ante. But this perspective loses sight of the realities of “inevitable cross-border jurisdictional overlap” and its potential to foster creativity.131 This Part echoes Robert Cover’s celebration of American federalism’s jurisdictional overlap as providing “a larger space for creative innovation”132 by exploring that insight in terms of transnational jurisdictional overlap. This Part explores an underappreciated benefit of this overlapping regulatory authority: forum choices themselves can facilitate the growth of domestic court systems as global laboratories of procedure.133 This concept finds a middle ground between those scholars, like Anne-Marie Slaughter and Karen Alter, who contend that judges in this context behave increasingly like dip- lomats, seeking compromise and cooperation when they deal with other nations’ judiciaries,134 and those, like Paul Stephan, who attribute judicial responses to each other as more grounded in “a traditional understanding of the judicial function.”135 It also provides an alternative narrative to those scholars, like Donald Chil-

131 Paul Schiff Berman, Ruth Bader Ginsburg and The Interaction of Legal Systems, 153 The Legacy of Ruth Bader Ginsburg, Scott Dodson, ed., Cambridge Univ. Press 2015. 132 Robert Cover, “The Uses of Jurisdictional Redundancy,” 22 Wm & Mary L Rev 639 (1981); Berman, Interaction, at 153 (describing Cover’s argument). I do not confront the other reasons Cover applauded American jurisdictional redundancy, that it also provides “a greater possibility for error correction, a more robust field for norm articulation.” Id. 133 This observation need not be limited to domestic court systems. It may apply as well to privately ordered dispute resolution mechanisms, such as mediation and arbitration, but those fields are beyond the scope of this Article. 134 See, e.g., Anne-Marie Slaughter, A New World Order; Larry Helfer, Karen Alter. 135 Paul B. Stephan, Courts on Courts: Contracting for Engagement and Indifference in International Judicial Encounters, 100 Va. L. Rev. 17, 19 (2014) (arguing that “a traditional understanding of the judicial function” instead motivates courts, in more of a contract based role).

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 31 dress, who have begun to describe transnational forum options as a market for transnational law.136 It is forum choice that brings cases to courts to compel them to interact with each other, to set jurisdictional standards for themselves based on domestic and transnational considerations, and to seek out other procedures to accommodate the evolving demands of both domestic and transnational litigation. [Roadmap]

A. Forum Shopping as a Mechanism for Diffusion

The global laboratories thesis builds on a rich diffusion literature developed in political science, economics, sociology, and geography, and adds to a growing number of legal studies applying these concepts to different areas of the law.137 It is widely acknowledged that “[j]urisdictional competition is … an important factor in legal evolution in areas ranging from corporate law to admiralty law.”138 Ex post, plaintiff forum choices are traditionally not thought to foster this kind of beneficial competition, experimentation, and evolution because the unilateral nature drives states to compete for one side of the ledger—plaintiffs.139 But understanding forum choice more broadly as a practice done by plaintiffs and defendants, and by parties both long before and af-

136 See, e.g., Childress, Brave New World. 137 See also, e.g., Benedikt Goderis & Mila Versteeg, The Diffusion of Constitutional Rights, 39 Int'l Rev. L. & Econ. 1, 2 (2014) (building on this literature to investigate the diffusion of constitutional rights); Francesca Bignami, Cooperative Legalism and the Non- Americanization of European Regulatory Styles: The Case of Data Privacy, 59 Am. J. Comp. L. 411, 418 (2011). 138 Wulf A. Kaal & Richard W. Painter, Forum Competition and Choice of Law Com- petition in Securities Law After Morrison v. National Australia Bank, 97 Minn. L. Rev. 132, 144 (2012) (emphasis added); O’Hara and Ribstein at 32 (“The jurisdictional competition fostered by choice-of-law clauses encourages states and parties to experiment with new legal rules. Experimentation can help legal systems to generate better legal rules. Party choice both enables parties to avoid the results of failed experiemtns and provides feedback to the states regarding the appeal of the new laws.”). 139 See, e.g., Klerman & Reilly.

DRAFT—Please do not cite or circulate 32 BOOKMAN [6/16/2015 ter disputes arise, helps to shed light on some of the more beneficial effects of forum shopping. Moreover, an investigation of experimentation in courts around the world140 demonstrates that states are not catering exclusively—or even disproportionately— to plaintiffs’ unilateral interests, and certainly not to foreign plaintiffs’ interests. Diffusion theorists believe that a country’s policy choices shape other countries’ choices.141 This view contrasts with conventional accounts that only domestic conditions influence policy choices.142 Sociologists identify four types of diffusion: construc- tivism (or emulation), coercion, competition, and learning. Emula- tion refers to countries wanting to emulate the practice of certain thought leaders. Coercion invokes strong states or international organizations using various methods to compel the adoption of certain policies by weaker states. Competition theorists argue that states compete, for example, to attract capital. Learning theorists posit that states learn from their own experiences and from others’ policy experiments.143 In practice, these mechanisms are sometimes intertwined.144 My purpose is not to present evidence that differentiates among which of these theories is at play, but rather to suggest that diffusion is at play and that jurisdictional concurrence, and, litigant choices among multiple fora, contribute to this diffusion by promoting learning, competition, and emulation. As Greg Shaffer has explained, “Transnational norms do not travel by themselves. They are constructed, conveyed, and carried by actors, including by government officials, members of international secretariats, professionals, business representatives, and civil society activ-

140 See infra Parts II.B and III. 141 Dobbin, Simmons & Garrett, The Global Diffusion of Public Policies: Social Construc- tion, Coercion, Competition or Learning?, 33 ANNUAL REVIEW OF SOCIOLOGY, 449, 450 (2007). 142 Id. 143 Id. 144 Id.

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 33 ists.”145 Litigants belong on this list of actors who transport transnational norms, particularly with respect to the very rules of private international law that govern the transnational forum game, but also with respect to other domestic procedures as well. Forum shopping—the wide variety of conduct done by litigants before and after disputes arise to direct litigation to one forum or another (or to avoid a forum altogether)—is another mechanism that facilitates moving transnational norms.146 Forum choice can facilitate diffusion in part because transnational forum shopping itself cross-pollinates courts with lawyers and litigants from other jurisdictions who bring experiences with other systems and creative applications of those other systems to transplant into the local domestic court system.147 This presses courts to accommodate (or not) different kinds of procedures. Forum shopping by lobbying also drives lawmakers to expand or contract court access. Drawing on his experience as an international arbitrator, Professor Andreas Lowenfeld has made a similar point with respect to the development of arbitration. He contends that “international arbitration is not a mirror image of any given court or source of law, but a series of imperfect reflections and adapta- tions.”148 As diverse parties choose international arbitration (itself a forum choice), international commercial arbitration procedures have converged.149

145 Gregory Shaffer, Transnational Legal Process and State Change, 37 Law & Soc. In- quiry 229, 236 (2012); id. at 259 (“focusing on the construction and migration of transnational legal norms through transnational legal processes is critical for the analysis of how national law and institutions are shaped and understood. It is where the action is”). 146 Cf., e.g., Mirjan Damaska, The Uncertain Fate of Evidentiary Transplants: Anglo- American and Continental Experiments, 45 Am. J. Comp. L. 839, 839 (1997) (“Inspiration for procedural reform is increasingly sought in the legal thesaurus of foreign countries.”). 147 See, e.g., Kelemen (describing role of American lawyers and law firms in shaping Eurolegalism). 148 Andreas Lowenfeld, The Two-Way Mirror: International Arbitration as Compara- tive Procedure, 7 MICH. YB. INT'L LEGAL STUDIES 163 (1985). 149 “The convergence does not, of course, lead to complete congruence, but it does, in my experience, lead to an area of similarity, a spectrum not as wide as might have been (continued next page)

DRAFT—Please do not cite or circulate 34 BOOKMAN [6/16/2015

Forum shopping also requires courts to interact with each other, practically requiring them to learn about other legal systems, e.g., because choice of law analysis requires it or because they are asked to enforce the judgment of another legal system.150 Relatedly, bringing these cases before them forces courts to develop rules about the interaction among courts, i.e., rules of private international law that speak to jurisdiction, choice of law, and enforcement of foreign judgments. Emulation, competition, and learning all play a role in leading to changes in domestic procedures throughout the world today.151 Litigant preferences for certain fora and certain kinds of procedural mechanisms can help establish particular procedures as models to be emulated. The civil enforcement systems in the United States and Canada, for example, “have become models for collective redress and representative litigation in other countries.”152 For a variety of reasons, other nations do not seek to exactly emulate these models, but rather to learn153 from them. For example, countries around the world are crafting collective action mechanisms in response to both domestic and transnational needs.154 Those needs are a reflection, in some sense, of forum

supposed, within which international commercial transactions are carried on and contro- versies are resolved.” Andreas Lowenfeld, The Two-Way Mirror: International Arbitration as Comparative Procedure, 7 MICH. YB. INT'L LEGAL STUDIES 163, 184 (1985). 150 See, e.g., Paul Stephan, Courts on Courts. 151 Particularly in the absence of a treaty on jurisdiction or transnational procedure, coercion does not appear to be involved. 152 Michael D. Hausfeld & Brian A. Ratner, Prosecuting Class Actions and Group Litiga- tion, 541 in WORLD CLASS ACTIONS (2012). 153 “Learning occurs when new evidence changes our beliefs. One can learn directly from one's own experiences or vicariously from experiences of others.” DOBBIN, F., B. SIMMONS & G. GARRETT (2007): "The Global Diffusion of Public Policies: Social Con- struction, Coercion, Competition or Learning?", Annual Review of Sociology, 33:449, 460. 154 See generally PAUL G. KARLSGODT, ED., WORLD CLASS ACTIONS (2012); Deutsche Telekom example (Halberstam article); Michael D. Hausfeld & Brian A. Ratner, Prosecuting Class Actions and Group Litigation, 533 in WORLD CLASS ACTIONS (2012) (“The ability of victims to seek redress by bringing claims together through some form of a collective mechanism is essential to corporate accountability and deterrence.”); id. at 534 (“govern- (continued next page)

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 35 shopping needs (or vice versa)—the demands of usually domestic litigants as they seek out a forum in which to vindicate their rights. As countries craft these mechanisms, they often cite the American experience as a cautionary tale to be avoided and from which they can learn.155 Finally, forum shopping and competition seem to go hand in hand. There may be a chicken and egg problem when describing which fosters which. Donald Childress has suggested that competition is strongly at play in the market for transnational litigation, where courts are the sellers and plaintiffs the buyers. “The basic idea” of a law market “is that ‘[j]urisdictions compete to offer legal rules and adjudication procedures that attract users.’”156 This analogy places transnational litigation in the good company of various other areas, from corporate law157 and bankruptcy law158 to product liability law,159 in which “[j]urisdictional compe-

ment authorities around the world are increasingly receptive to the idea of private collective enforcement as an additional means of promoting corporate accountability and deterrence”). 155 [String cite]; see Kelemen; Litigation Isolationism. 156 Childress, Brave New World at 1010 (citing O’Hara and Ribstein). 157 See, e.g., Romano. 158 Rasmussen and co-author. 159 Samuel Issacharoff, Settled Expectations in A World of Unsettled Law: Choice of Law After the Class Action Fairness Act, 106 Colum. L. Rev. 1839, 1845-46 (2006) (“Regula- tory decisions of the separate states are zero sum because each state's effort to control multistate economic conduct necessarily restricts the regulatory ambit of the other states. In any legal dispute over multistate economic conduct, a choice will have to be made over the governing law if the legal rules of the states are not the same. The effect is to place the states in a form of legal competition in which different substantive rules may favor consumers in one state at the expense of manufacturers in another state, or vice versa. Because of this competition, and given the impossibility of designing, pricing, and marketing different products for every state, states take advantage of the fact that manufacturers distribute uniform products. One state's regulation of uniform products has predictable spillover effects on other states: For example, a state may use its liability regime ‘to benefit in-state residents with larger compensation payments, or export[ ] the costs of its regulation to out- of-state manufacturers and product consumers in the rest of the nation.’ Eventually, a choice will have to be made about which liability regime to apply.” (footnotes omitted)).

DRAFT—Please do not cite or circulate 36 BOOKMAN [6/16/2015 tition is now recognized as an important factor in legal evolution.”160 Childress contends that “transnational forum shopping exists as part of a transnational law market where litigants encourage courts to compete for transnational cases,”161 and “where plaintiffs shop the world for favorable courts and law, and states and defendants respond to that forum shopping.”162 States, under this view, play two roles in this market: first, they provide the “goods,” the legal recovery.163 Different legal rules—both substantive and procedural—may be the result “happenstance in legal culture,” a state’s “concerted efforts . . . to compete for legal business,” or “judges in individual cases seeking justice for plaintiffs through expansive application of legal doctrines.”164 As Ori Ar- onson explains, “In some circumstances, the initiator's choice model . . . incentivizes the forums themselves—the ‘supply side’— to invest resources to draw more cases to their jurisdiction.”165 I foresee three main objections to the argument that forum shopping facilitates procedural experimentation in national courts. First, one may argue that forum shopping does not signifi- cantly further the objective of diffusion of ideas beyond what would exist anyway through modern modes of communication. That is, procedural experimentation and the cross-pollination of ideas would likely exist without concurrent jurisdiction and without litigant choices. Second, procedure—like all of law—has al- ways been changing and developing. What is new or different about experimentation in the modern forum shopping system?

160 Wulf A. Kaal & Richard W. Painter, Forum Competition and Choice of Law Com- petition in Securities Law After Morrison v. National Australia Bank, 97 Minn. L. Rev. 132, 144 (2012). 161 Donald Childress, General Jurisdiction and the Transnational Law Market, 66 Vand. L. Rev. En Banc 67, 68 (2013). 162 Donald Childress, General Jurisdiction and the Transnational Law Market, 66 Vand. L. Rev. En Banc 67, 68 (2013). 163 Brave New World, [draft at 15]. 164 Brave New World, [draft at 15]. 165 Aronson, at 75.

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 37

Consideration of the third objection—that the negative effects of forum shopping nevertheless outweigh any positive contributions of experimentation and reform—is the subject of Part III. With respect to the first objection, it may be impossible to know how much additional force forum shopping gives to drive experimentation. My argument is that forum shopping is one of several forces—far from the only one—driving procedural innovation. Its influence is most clear with respect to the development of ideas about conflicts of law. Conflicts of law—a term that describes the domestic law issues of jurisdiction, choice of law, and the enforcement of judgments166—arise and thus are developed when parties bring cases that have ties to multiple fora. In the development of these ideas, the two component parts of forum shopping—jurisdictional concurrence and litigant choices— cyclically redefine each other. That is, parties "shop" to try to push and poke at principles of jurisdiction, and courts and lawmakers respond by refining, either expanding or contracting, those principles. The process continues ad infinitum. A broad definition of forum shopping is important to understanding how this argument applies to areas beyond conflicts law. Parties’ efforts to alter the rules of litigation are carried out by both sides of the “v” both long before and after the plaintiff’s choice of forum for a particular lawsuit is made. If one cabins the definition of forum shopping to the narrow time frame of a plaintiff’s choice of where to initiate suit, or even to include defendants’ attempts to parry against that decision using tools like forum non conveniens, then one loses the full picture of the interplay of jurisdictional concurrence and litigant influence. The crux of the point is that parties, courts, and legislators—both within a state and transnationally—are in a constant “conversation” about how litigation can address the needs of lawmakers, members of society, and potential parties. Forum shopping advances this conversa-

166 Restatement (Third) of Foreign Relations Law § 101 (1987).

DRAFT—Please do not cite or circulate 38 BOOKMAN [6/16/2015 tion by putting transnational issues before courts and pushing legislators to address parties’ needs. Both plaintiffs and defendants have forum shopping needs that can be the mother of invention. Plaintiffs looking for a forum in which they can aggregate claims seek out innovative measures, like assigning claims and crowdfunding litigation.167 Defendants in search of global peace seek out class settlement procedures like those developed in the Netherlands.168 They may push for reform by bringing certain arguments before courts or by alerting legislators of their needs. Legitimate jurisdictional concurrence opens up multiple countries where litigants can assert these needs and multiple fora in which they can be explored. As Adam Zimmerman put it, “the global convergence of class action attorneys, regulatory agencies, state attorneys general, and even criminal prosecutors commenc- ing overlapping actions create new pressures on what we want and expect from our courts,” which may drive courts (and legislatures) “to adopt yet another model to balance the interests of individual and collective justice in mass litigation.”169 It is this experimentation, driven in part by forum shopping itself, that forms the core of the global laboratories argument. How is forum shopping and parallel litigation any better than the internet or conferences at the diffusion of ideas about procedure? It may be impossible to weigh or isolate the effects of these different forms of communication. But forum shopping promotes a rich, concrete version of court interaction—what Paul Stephan has called “court-on-court” interactions. Its force can be likened to the requirement that federal courts confront a “case or controversy.” It provides a forum in which courts must struggle to

167 See infra (Austria Facebook example). 168 See infra (discussing WCAM). 169 Adam Zimmerman, The Convergence of Global Settlements, Feb. 1, 2012, http://prawfsblawg.blogs.com/prawfsblawg/2012/02/the-convergence-of-global- settlements.html

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 39 find the appropriate balance among court access, convenience, fairness, sovereignty, and comity. Second, it is of course true that to some extent, the interaction described here has been happening for as long as there have been conflicts. Indeed, the phenomenon itself is not new at all. The extent of interaction and reform, however, have increased and in- tensified in the past few decades. There are many forces driving procedural reform at the EU level and throughout Europe and around the globe, and I do not contend that forum shopping is the only one. But it is an important one. The longstanding role of the United States as a forum shoppers’ favorite destination, and recent developments in U.S. law that have limited the use of U.S. courts in such cases,170 also plays a role. The ebb and flow of court access, particularly transnational court access, in the United States has helped define international conceptions of the legitimacy of jurisdiction, extraterritoriality, and class actions, to name a few. It has also driven potential parties to seek access to courts elsewhere, as U.S. options appear to be increasingly foreclosed by recent developments.

B. Case Studies

Fans of jurisdictional competition and experimentation note that “[b]ecause market conditions to which legal rules apply constantly evolve, rules need to change as well. Experimentation, observation, and rule revision are part of an ongoing process that may never end with a stable ‘optimal’ rule.”171 But critics “empha- size the ‘race to the bottom’ phenomenon in which jurisdictions compete for private patronage of their legal systems by designing

170 See Litigation Isolationism. 171 Wulf A. Kaal & Richard W. Painter, Forum Competition and Choice of Law Com- petition in Securities Law After Morrison v. National Australia Bank, 97 Minn. L. Rev. 132, 145 (2012).

DRAFT—Please do not cite or circulate 40 BOOKMAN [6/16/2015 rules that bestow lopsided advantages on private actors able to choose the legal regime and impose that choice on other actors.”172 If transnational forum shopping led courts to compete to hear more litigation, one would expect increasingly plaintiff- friendly procedures developing all over the world to entice plaintiffs to file there, creating the country-equivalent of the Eastern District of Texas. To the contrary, current advances in court access are timid in nature and wary of what the historical American example that is seen as overly plaintiff-friendly.173 Importantly, these measures tend to take seriously the challenge of defining the scope of legitimate jurisdiction and of cabining bases of jurisdiction seen as exorbitant, or illegitimate, in other countries. Moreo- ver, the United States itself has been backing away from a variety of overly plaintiff-friendly procedures and practices, effectively closing its doors to large swaths of transnational (as well as domestic) litigation.174 In short, there is movement and experimentation in both directions. Forum shopping—in the form of litigants trying to push the jurisdictional envelope—has pressed courts and legislatures to reevaluate court accessibility in a variety of innovative circumstances and the results have been mixed.

1. Transnational Forum Shopping in the United States

The United States has a reputation for being the forum shopper’s favorite store.175 It had long been thought that U.S. courts provided the only financially viable option for a wide swath of high value transnational private litigation, particularly

172 Wulf A. Kaal & Richard W. Painter, Forum Competition and Choice of Law Com- petition in Securities Law After Morrison v. National Australia Bank, 97 Minn. L. Rev. 132, 147 (2012). 173 Those counterexamples, like Ecuador and Nicaragua, have not been enforced in other countries. See Litigation Isolationism. 174 See Litigation Isolationism; Trammell response. 175 Lord Denning famously remarked, “As a moth is drawn to the light, so is a litigant drawn to the United States.” Smith Kline & French Labs. Ltd. v. Bloch, [1983] 1 W.L.R. 730 (A.C.) at 733 (Eng.).

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 41 outside of the contract context. Examples include transnational torts, like human rights violations and airplane crash litigation, and regulatory actions, like securities fraud class actions. Abroad, the United States was criticized for being overly plaintiff-friendly and recognizing extremely broad principles of jurisdiction that permitted U.S. courts to entertain suits from all over the world that seemed to have insufficient connections to the forum court.176 That tide is turning. As I have demonstrated elsewhere, through developments in a number of seemingly disparate doctrines, U.S. courts have been clamping down on litigation generally and transnational litigation in particular.177 These developments are demonstrated most clearly by changes to understandings of principles of personal jurisdiction and forum non conveniens. With respect to general personal jurisdiction, the United States had long been criticized for recognizing “doing business” jurisdiction over defendants in cases with little connection to the United States, where the defendants did some amount of business in the forum state. In two recent Supreme Court cases, the Court upend- ed that traditional understanding of general jurisdiction and re- placed it with a rule more similar to one broadly accepted over- seas: defendants are subject to general jurisdiction—for cases with little or no connection to the forum—only in fora where they are “at home.”178 With similar results, over the years, U.S. courts have strengthened the significance of forum non conveniens—a doctrine that permits U.S. courts to dismiss transnational cases if there is an alternative available forum and a multifactor balancing test leads the court to believe that it would be more convenient for the case to proceed in that forum. While originally thought to apply only in “rare” cases,179 the doctrine now leads to dismissals in

176 177 See Litigation Isolationism. 178 Goodyear; Daimler. 179 Gulf Oil,

DRAFT—Please do not cite or circulate 42 BOOKMAN [6/16/2015 over half the cases where a forum non conveniens motion is made and the case involves foreign plaintiffs or the possibility of the application of foreign law.180 Along with a retraction of the extraterritorial reach of federal statutes through developments in the statutory interpretation canon of the presumption against extraterritoriality, these doctrines have contributed to the United States shrinking its role in the adjudication of transnational disputes.181 One cannot help but speculate that this contracting of the accessibility of U.S. courts to transnational cases is at least in part a response to perceived excesses in forum shopping in the United States. The developments all seek to draw a stricter line in the sand with respect to the connection a case must have with a U.S. forum in order to be entertained there. At times the Supreme Court has intimated that forum shopping was a direct target of its decision. In Morrison, for example, the Court acknowledged the legitimacy of fears that U.S. courts “ha[ve] become the Shangri-La of class-action litigation for lawyers representing those allegedly cheated in foreign securities markets,”182 when it curbed the extraterritorial reach of U.S. securities statute. Somewhat more subtly, when the Supreme Court recently held that general jurisdiction should be confined to its more internationally recognized bounds of “at home” rather than “doing business” jurisdiction, it (likely not accidentally) cut off a substantial amount of transnational forum shopping.183 Finally, the doctrine of forum non conveniens is the most direct response to forum shopping. Its growth and increased utility now that it can be a basis for dismissal even before a court has determined whether it has jurisdiction provides U.S.

180 Litigation Isolationism; Whytock. 181 This may seem like a necessary correction to a problem of the United States former- ly acting too much like a court for the world, but I have argued that this correction has gone too far, and ends up excluding cases with strong U.S. ties, including cases involving American parties and events that occur on U.S. territory. See Litigation Isolationism. 182 Morrison, 561 U.S. 247, 270 (2010). 183 See Litigation Isolationism; Childress, Vandy en banc.

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 43 courts with a strong weapon against perceived excesses of forum shopping.184 Forum shopping brought these cases to U.S. courts and compelled the courts to confront the questions of choice of law,185 jurisdiction, and venue that resulted in the continued evolution of these doctrines. As I have argued elsewhere, the resulting doctrinal developments have had unintended negative consequences for U.S. interests because they have the result of excluding even cases with strong U.S. ties.186 But they also reflect how forum shopping contributes to a continued evolution of attitudes towards these issues of private international law.

2. European Forum Selling and Its Limits

While the United States has recently begun to narrow the accessibility of its courts to transnational litigation (a narrowing from an admittedly wide initial stance), several foreign systems have begun to experiment with expanding court access, especially to permit more private enforcement of traditionally public regula- tions, like antitrust and securities laws.187 These attempts to draw plaintiffs to file in these courts are akin to the practice that Dan Klerman and Greg Reilly have called “forum selling.” But it has met with far more muted consequences than Klerman and Reilly describe in the domestic context. To encourage private enforcement litigation for regula- tions that affect transnational actors or transnational tort suits, lawmakers must experiment with different ways of considering the scope of their jurisdiction and the reach of their laws. Europe-

184 See Sinochem; see, e.g., Norex, other cases using FNC to fight forum shopping. 185 See Caleb Nelson, U. Chi. L. Rev. (extraterritoriality is kind of choice of law). 186 Litigation Isolationism. 187 This is not to suggest necessarily that foreign courts are opening in response to U.S. courts closing. Some foreign development began before some of the most recent “isolation- ist” moves by U.S. courts. Rather than a direct causal story, the argument is simply that forum shoppers are more likely to look to foreign courts if either foreign courts are expanding accessibility, U.S. courts are shrinking it, or both.

DRAFT—Please do not cite or circulate 44 BOOKMAN [6/16/2015 an countries have long had a broader conception of specific jurisdiction than the United States, in part because the concept in Eu- rope is not constrained by principles of due process.188 But these principles nevertheless have relatively clear boundaries.189 With respect to broader bases for jurisdiction, European authorities and national courts (like the United States in the 2014 Daimler opinion) for decades have been cutting down on long- criticized exorbitant bases for jurisdiction, such as tag jurisdiction in the UK, in rem jurisdiction in Germany, and plaintiff- nationality-based jurisdiction in France. The EU has eliminated these exorbitant bases of jurisdiction among EU Member States and their residents. But the national courts have also made these bases largely ineffective.190 Cases involving these bases for jurisdiction are inevitably brought by forum shoppers in ways that have required the courts to reevaluate the legitimacy of these bases for jurisdiction. As Paul Schiff Berman has suggested, this may be at least in part because “when decision makers are forced to consider the existence of other possible decision makers, they may tend to adopt, over time, a more restrained view of their own power and come to see themselves as part of a larger tapestry of decision making in which they are not the only potentially relevant voice.”191 To the extent that European courts have become more open to transnational litigation, this is so not through the expan- sion of universal or even general jurisdiction, but through the increasing interconnectedness of nations that allow them to exercise jurisdiction over suits that do have some connection to the forum.

188 See Litigation Isolationism; Linda Silberman; Brand, Columbia on line. 189 Brussels. 190 Cite. E.g., Axel Halfmeier re German in rem; Kevin M. Clermont & John R.B. Palm- er, Exorbitant Jurisdiction, 58 Me. L. Rev. 473, 487-499 (2006) (providing an extensive survey of the past and current use of French Article 14). 191 Berman, The Interaction of Legal Systems, at 153.

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 45

To the extent it is doing so, global court access is expanding mostly through what Americans call “specific jurisdiction.”192 One exception is that some nations’ courts are recognizing a doctrine of “forum of necessity” for cases with little connection to the forum but nowhere else to go.193 This doctrine, if sufficiently robust, could be far broader than principles of universal civil jurisdiction, which are likely limited to providing jurisdiction for civil redress for actions subject to universal criminal jurisdiction.194 But the instances of cases under this doctrine are still few and far between. The idea of universal civil jurisdiction, moreover, does not appear to have gained the traction that it might have once promised.195 It is helpful to walk through a few concrete examples of how forum shopping leads to experimentation and reform in areas of procedure. Antitrust is a fertile example. Private antitrust litigation provides a mechanism to compensate the victims of anti-

192 Patrick J. Borchers, One Step Forward and Two Back: Missed Opportunities in Re- fining the United States Minimum Contacts Test and the European Union Brussels I Regu- lation, 31 Ariz. J. Int'l & Comp. L. 1, 4 (2014) (noting that Europeans call this concept “spe- cial jurisdiction”); Cf. Alan Trammell, Tale of Two Jurisdictions (describing specific and general jurisdiction as existing along a spectrum). 193 See Lit Isolationism; Jurisdiction By Necessity (tracing doctrine back to 1980s). 194 See Donovan & Roberts. 195 The United States may be the only nation that has implemented universal civil jurisdiction through the Alien Tort Statute. See Donald Francis Donovan, Anthea Roberts, The Emerging Recognition of Universal Civil Jurisdiction, 100 Am. J. Int'l L. 142, 149 (2006) (speculating as to why “universal civil litigation has largely been confined to the United States”); Peter Jan Honigsberg, In Search of A Forum for the Families of the Guantanamo Disappeared, 90 Denv. U. L. Rev. 433, 478 (2012) (“the universal jurisdiction approach is a bit of a long shot in current jurisprudence”). Kiobel, however, calls that universality into question. Kiobel. Universal criminal jurisdiction, the supposedly more established anteced- ent to universal civil jurisdiction, has also faced roadblocks in national courts. See http://www.hrw.org/news/2003/08/01/belgium-universal-jurisdiction-law-repealed; Glenn Frankel, Belgian War Crimes Law Undone by Its Global Reach, Washington Post, Sept. 30, 2003, https://www.globalpolicy.org/component/content/article/163/29408.html; http://www.nytimes.com/2014/02/11/world/europe/spanish-legislators-seek-new-limits-on- universal-jurisdiction-law.html?_r=0 (Spain’s universal criminal jurisdiction law) (“It’s not just that China is against this,” Professor Spiro said. “It is still a little out of step with prevailing international norms on issues of jurisdiction.”).

DRAFT—Please do not cite or circulate 46 BOOKMAN [6/16/2015 trust conspiracies directly without involving the government antitrust agencies’ scarce resources. In the United States, private antitrust suits commonly follow antitrust convictions or guilty pleas.196 Authorities in Europe, which has particularly strict antitrust enforcement, have become concerned that such public enforcement is followed by private litigation only 25% of the time. As a result, many EU and European national authorities have begun to discuss plans to allow antitrust collective action mechanisms and to attract forum shoppers—foreign and domestic—to European courts to vindicate the European competition laws. In 2015, the UK passed an antitrust law that permits opt out class actions for domestic plaintiffs, and allows foreign plaintiffs to join the class only on an opt-in basis.197 The UK thus appears to be competing for forum shopping plaintiffs, making an effort to become a “magnet” forum for private antitrust litigation.198 These efforts look to the American example with caution, as lawmakers repeatedly state that are wary of creating a litigation regime as plaintiff-friendly as that in the United States.199 While it is too early to tell what the effect of this new UK law may be, one can conclude that the wariness of German authorities not to replicate American class action culture has borne fruit—perhaps too much. In 2000, Germany faced an unprece- dented number of individual lawsuits brought against Deutsche Telekom for alleged fraudulent misrepresentations and omissions in its securities filings. At the time, Germany had no mechanism for aggregating these claims. In response to this direct need—a common need of forum shoppers, some of whom also sought re-

196 See Reuters article. 197 Cite. 198 See, .e.g., Tobias Caspary, How Antitrust Class Actions Will Work In The UK, Law360, April 9, 2015, http://www.law360.com/articles/640749/how-antitrust-class-actions- will-work-in-the-uk. 199 Id.; see generally Kelemen (discussing European view of American legalism as a cautionary tale).

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 47 course in U.S. courts200—Germany enacted the 2004 Deutsche Tel- ekom Act, creating the first collective action mechanism in Ger- many. The law was securities-specific. [Describe law.] The test case was the suit against Deutsche Telekom itself that gave rise to the statute. After ten years of litigation, and far less discovery, a German court found no wrongdoing, although the case continues on appeal.201 The parallel U.S. litigation involving investors in American ADRs in Deutsche Telekom, by contrast, resulted in a large settlement.202 Professor Michael Halberstam, who has thor- oughly analyzed the two litigations, contends that the German statute failed to provide meaningful opportunities for private enforcement of the German securities laws in part because German procedure is weak on discovery.203 This procedural shortcoming, Halberstam argues, prevented the German court from learning more about the nature of the alleged fraud and, accordingly, reaching a more just conclusion (notwithstanding the “relatively similar standards of substantive law”).204 Other commentators agree that the German experiment in aggregate securities litigation has been “a flop.”205 From the forum shopping perspective, it successfully aggregated the claims and provided a forum for them. But its reputation and utility going forward is questionable. In an arguably more successful experiment, the Dutch have created an innovative collective settlement procedure called WCAM206 under which putative plaintiffs and defendants can petition the Amsterdam Court of Appeals to approve a settlement

200 See Halberstam. 201 See Halberstam. 202 Halberstam & Gorga at 1490. (“While the New York case settled in 2005 for $120 million after discovery had been completed, the German court found in favor of the defendants.”). 203 See Halberstam & Gorga, at 1484 (describing limitations on discovery in civil law systems, including Germany). 204 Halberstam. 205 Halberstam & Gorga at 1491 (citing Kuhr). 206 Wet collective afhandeling massaschade, WCAM.

DRAFT—Please do not cite or circulate 48 BOOKMAN [6/16/2015 and make it binding on all class members who do not opt out.207 Dutch civil procedure affords Dutch courts jurisdiction if at least one of the plaintiffs requesting the declaration, or one of the defendants, is a Dutch domiciliary.208 In the most significant (and largest) settlement under the WCAM to date, Shell Petroleum settled securities fraud claims (originally brought as a global class action in the United States) with plaintiffs from over 100 countries (but not the United States) for over $350 million. Considering the fees awarded in the U.S. and Dutch proceedings, Deborah Hensler has calculated that both Shell and the U.S. plaintiff lawyers involved in the settlement (if not also the plaintiffs themselves) appear to have fared at least as well if not better than they would have in U.S. court.209 The creation of the WCAM is a form of innovative forum selling in reaction to the forum shopping needs of both plaintiffs and defendants. Some see this procedure as proof that the Nether- lands “hop[es] to take over” the U.S. class action business.210 For some the procedure may have all the beneficial attributes of other procedures that promote settlement.211 For others, like Hensler, one criticism may be that the procedure benefits plaintiffs’ lawyers and defendants, but not plaintiffs themselves. For present purposes, I will point out simply that the WCAM was created as a procedural experiment to address a forum shopping need, and that the experimentation continues. The Dutch government recently introduced a proposal to add collective litigation for damages proce-

207 Hensler, supra note __ at 311. 208 Dutch Code of Civil Procedure, art. 3. 209 Hensler, supra note __ at 319. 210 See Litigation Isolationism; Xandra E. Kramer, Securities Collective Action and Pri- vate International Law Issues in Dutch WCAM Settlements: Global Aspirations and Re- gional Boundaries, at [236] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2480079. 211 See Kramer, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2480079 (describing debate). Cf. Against Settlement.

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 49 dures to complement the WCAM, which had only facilitated settlements and not litigation.212 A recent suit in Austria against Facebook provides a third example.213 As I and other commentators have noted, litigants can be driven to experiment with alternative procedures in foreign courts if they are barred from accessing class actions in U.S. courts.214 In 2014, an Austrian law student initiated a collective action in Austrian court against Facebook Ireland to pursue a number of privacy related claims “relating to Facebook’s use of consumer data as well as alleged illegal tracking and surveillance activity” on behalf of himself and more than 25,000 other non-US plaintiffs.215 Although Austria, like many civil law countries, lacks an express aggregation mechanism, it permits private litigants to agree to assign their claims to a single plaintiff to pursue the claims as a group. This kind of aggregation—driven largely by private party innovation and forum-shopping needs—has become “a popular practical vehicle for pursuing group litigation, especially in continental Europe.”216 To address litigation costs, the case has been crowdfunded.217

212 See Xandra Kramer, Dutch draft bill on collective action for compensation – a note on extraterritorial application, Nov. 20, 2014, http://conflictoflaws.net/2014/dutch-draft-bill- on-collective-action-for-compensation-a-note-on-extraterritorial-application/; 213 See http://classactionblawg.com/2014/08/07/could-austrian-facebook-suit-breathe- new-life-into-the-global-class-action/. 214 http://classactionblawg.com/2014/08/07/could-austrian-facebook-suit-breathe-new- life-into-the-global-class-action/ 215 Class action privacy lawsuit filed against Facebook in Austria, http://www.theguardian.com/technology/2015/apr/09/class-action-privacy-lawsuit-filed- against-facebook-in-austria. 216 http://classactionblawg.com/2014/08/07/could-austrian-facebook-suit-breathe-new- life-into-the-global-class-action/. 217 http://www.theguardian.com/technology/2015/apr/09/class-action-privacy-lawsuit- filed-against-facebook-in-austria.

DRAFT—Please do not cite or circulate 50 BOOKMAN [6/16/2015

III. DISPELLING DISDAIN FOR TRANSNATIONAL FORUM SHOPPING

This Article has thus far set out a broad definition of forum shopping; the standard, widely held objections to forum shopping; and an unappreciated benefit of forum shopping: the opportunities for experimentation and reform in national and sub- national “laboratories of procedure.” This Part now returns to the objections to forum shopping and argues that they tend to be overblown. The challenge that emerges is not to limit parties from making “strategic” choices, but to establish the confines of the rules of the game within which they can make these choices. To be sure, there are negative effects of forum shopping. Choosing a forum and determining whether a forum is appropriate consumes an enormous amount of time, energy, and resources of parties, courts, and lawmakers alike. As a matter of doctrine or in practice, the forum question can sometimes involve “back of the envelope” merits evaluations inappropriately moved forward into consideration of threshold inquiries (e.g., questions about jurisdiction or class certification). Likewise, duplicative parallel litigation, or subsequent, duplicative litigation in one forum by the party that lost in another, is particularly wasteful. But complaints about the unfairness and inefficiency of forum shopping are overblown. [Roadmap]

A. The Inevitability and Desirability of Disuniformity

One main criticism of forum shopping is that it compro- mises the principle of decisional uniformity.218 There are three main reasons why this criticism is at least somewhat misplaced in the transnational context.219 The first two reasons are variations on the theme that particularly on the transnational plane, uniformity is impossible as a practical matter. First, uniformity is an unrealis-

218 See supra Part I.A. 219 Berman, Global Legal Pluralism 129 (“there are reasons to question both the desirability and – more importantly – the feasibility of universalism, at least in some contexts”).

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 51 tic ideal to the extent that it requires international consensus, which will be a very long time coming, if it would ever come. Se- cond, if agreement were possible, those efforts would be unlikely to result in actual uniformity. Third, even if it were possible, uniformity—particularly for its own sake—would not be desirable. Uniformity is most advantageous if it lands on the right rule, and it is difficult if not impossible to determine what that rule is, particularly in the area of procedure, which is so culturally grounded.220 First, national procedural regimes vary greatly from one another and are both deeply embedded and deeply cultural.221 The disuniformity objection is that the same case would come out differently depending on the forum in which it proceeds, whether that is based on a difference in the substantive law applied, the choice of law calculations, or the procedures that extend the statute of limitations or allow for certain collective actions, to name just a few reasons. But on the international level (and indeed on the domestic level as well222), such differences are an inescapable truth, if not also a virtue of the international system. Sovereigns are understood to have the prerogative to create their own procedural and substantive laws (within reason).223 International consensus, particularly on areas of procedure, is difficult to come by.224 In the late 1990s, for example,

220 Kevin M. Clermont, Why Comparative Civil Procedure?, Foreword to KUO-CHANG HUANG, INTRODUCING DISCOVERY INTO CIVIL LAW, at xii (2003) (“[P]rocedure is surprisingly culture-bound, reflecting the fundamental values, sensibilities, and beliefs of the society.”); Geoffrey P. Miller, The Legal-Economic Analysis of Comparative Civil Procedure, 45 Am. J. Comp. L. 905, 905 (1997) (discussing costs and benefits of harmonization). 221 cites 222 See Purcell, U. Pa. L . Rev. Even domestically, virtually identical cases can play out differently for a host of reasons. See, e.g., Konowaloff v. Metropolitan Museum of Art (SDNY) and Yale v. Konowaloff (D. Conn). 223 Cite treaties limiting these prerogatives? 224 See generally Paul Schiff Berman, Global Legal Pluralism at 10 (“[W]e should be wary of pinning our hopes on legal regimes that rely either on reimposing sovereigntist territorial insularity or on striving for universals. Not only are such strategies sometimes (continued next page)

DRAFT—Please do not cite or circulate 52 BOOKMAN [6/16/2015 scholars set out to draft a harmonized set of transnational rules of civil procedure, aiming to combine the best characteristics from civil and common law procedural traditions.225 But the project was met with much skepticism226 and has not been adopted by any national courts.227 Efforts to harmonize principles of jurisdiction and enforcement of foreign judgments through treaties have also foundered.228 As Judge Vanderbilt famously noted, “judicial reform is no sport for the short-winded,”229 and these processes are on-going. But even if harmonization were the goal, the challenges to top-down harmonization suggest that bottom-up approaches may be more gradual, manageable, and ultimately sustainable.230 As von Mehren explained in the 1970s, in transnational cases there is a particular tension between advancing the princi-

normatively undesirable, but more fundamentally they simply will not be successful in many circumstances.”). 225 Geoffrey C. Hazard, Jr. & Michele Taruffo, Transnational Rules of Civil Procedure Rules and Commentry, 30 Cornell Int'l L.J. 493, 493-94 (1997) (“The authors' intent is for the draft Rules to apply in ordinary national courts, replacing domestic procedural rules whenever the plaintiff and defendant are nationals of different states or whenever property in one state is subject to claims (ownership or security interests) asserted by a party from another state.”); Am. Law Inst., ALI/UNIDROIT Principles and Rules of Transnational Civil Procedure, Discussion Draft No. 3, http:// www.ali.org/Trans_RulesofCP.htm (Apr. 8, 2003). 226 See Gerhard Walter & Samuel P. Baumgartner, Utility and Feasibility of Transna- tional Rules of Civil Procedure: Some German and Swiss Reactions to the Hazard-Taruffo Project, 33 Tex. Int'l L.J. 463, 467-68 (1998) (reporting on German and Swiss proceduralists’ skepticism of the Principles of Transnational Civil Procedure). 227 228 Arthur T. von Mehren, Drafting a Convention on International Jurisdiction and the Ef- fects of Foreign Judgments Acceptable World-Wide: Can the Hague Conference Project Succeed?, 49 AM. J. COMP. L. 191, 195-96 (2001) (explaining the impasse in negotiations for a judgments convention on jurisdiction and foreign judgments in civil and commercial matters). Patrick J. Borchers, One Step Forward and Two Back: Missed Opportunities in Refining the United States Minimum Contacts Test and the European Union Brussels I Regulation, 31 ARIZ. J. INT’L & COMP. L. 1, 4 (2014). 229 Gerhard Walter & Samuel P. Baumgartner, Utility and Feasibility of Transnational Rules of Civil Procedure: Some German and Swiss Reactions to the Hazard-Taruffo Project, 33 Tex. Int'l L.J. 463 (1998) (citing 2 Arthur Vanderbilt, Introduction to Minimum Standards of Judicial Administration, in Selected Writings of Arthur Vanderbilt 41, 43 (1967)). 230 Add?: [Approximation is more desirable than harmonization.]

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 53 ples of equal treatment and of advancing a community’s values or purposes behind its laws.231 If the choice between the two is unavoidable (which he concludes it is), he argues that equality of the laws would theoretically be the one to choose, but that it turns out to be impossible to advance. But equality—then and now— remains elusive. Despite the continuing important and admirable efforts by the Hague Conference on Private International Law, “internationally accepted rules administered by an international court remain, for the most part, utopian goals.”232 With equality as an impossibility, von Mehren writes, “the alternative principle of advancing values becomes increasingly attractive.”233 In the end, “[o]ne who expects to achieve results in multistate cases that are as satisfying in terms of standards of justice and of party acceptability as those reached in purely domestic cases is doomed to dis- appointment.”234 Second and relatedly, even if attempts at establishing uniformity “succeed,” uniformity itself is rarely established. Stephen Burbank has referred to the “well-known fact that uniform laws are not uniform.”235 On the domestic level, we see this is the case with federal law, which is supposed to be uniform throughout the country, but often is not.236 As Paul Stephan has pointed out, on issues with deep divisions, harmonization often instantiates flexi- ble rules to accommodate conflicting viewpoints, which leads to continued diversity of results.237 Franco Ferrari also has effectively

231 See Von Mehren, 41 L and Contemp Prob. 29-30 (1977) (“”). 232 Von Mehren, 41 L and Contemp Prob. at 32; see also Aronson (noting same thing). 233 Von Mehren, 41 L and Contemp Prob. at 33. 234 Von Mehren, 41 L and Contemp Prob. at 42. 235 Stephen B. Burbank, A Tea Party at the Hague?, 18 Sw. J. Int'l L. 629, 644 (2012) 236 See, e.g., M & N Plastics, Inc. v. Sebelius, 997 F. Supp. 2d 19, 25-26 (D.D.C. 2013) (noting that plaintiffs had filed in federal district court in D.C. rather than in Michigan to take advantage of more favorable D.C. Circuit precedent on the interpretation of federal law); Amanda Frost, Overvaluing Uniformity. 237 Stephan, Uniformity.

DRAFT—Please do not cite or circulate 54 BOOKMAN [6/16/2015 demonstrated how differences—and forum shopping—persist notwithstanding the adoption of uniform substantive rules.238 Finally, even if strict uniformity were achievable, it would not necessarily be desirable. The Federal Circuit has been tasked with establishing certainty and uniformity in U.S. patent law, for example, and yet it is heavily and consistently criticized for “its apparent proclivity to favor formalistic rules that sacrifice the policy aims of the patent laws at the altar of predictability.”239 As Paul Stephan has argued, moreover, the political economy of the harmonization process “results too often . . . in rules written for the benefit of particular industries and other interest groups.”240 In particular, uniformity makes especially little sense when applied to domestic court procedure, which starts from culturally dramat- ically different baselines and are so intertwined with many different aspects of any given legal system. The criticisms of the transnational civil procedure project illustrate why.

B. Whither the Race?

In a number of contexts in which a “law market” concept has been introduced, there is a heated debate over whether the market produces a race to the top or the bottom. The classic example is the debate over “whether the well-known tendency of large, publicly traded firms to incorporate in Delaware”—i.e., to shop for a forum in which to incorporate—generates a race to the top, increasing social welfare and shareholder value, or a race to the bottom, wherein states “cater to the whims of corporate man- agers.”241

238 Ferrari, Forum Shopping Despite International Uniform Contract Law Conven- tions, ICLQ 689 (2002). 239 Tejas Narechania, Patent Conflicts, Geo. L. J. (2015); Rai, Robust Ecosystem, at 388 (“Although formalism, uniformity, and predictability can promote innovation, they can also retard it.”); Jeanne Fromer; John Duffy; Judge Wood. 240 Paul B. Stephan, The Futility of Unification and Harmonization in International Commercial Law, 39 Va. J. Int’l L. 743, 744 (1999). 241 Whither the Race? A Comment on the Effects of the Delawarization of Corporate (continued next page)

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 55

Scholars have begun to speak of transnational litigation in terms of a market for transnational law. Donald Childress, for example, contends that “transnational forum shopping exists as part of a transnational law market where litigants encourage courts to compete for transnational cases,”242 and “where plaintiffs shop the world for favorable courts and law, and states and defendants respond to that forum shopping.”243 But commentators thus far have not explicitly addressed in which direction forum shopping push- es the market.244 Nevertheless, age-old criticisms that forum shopping generates unfair, inefficient laws that cater to plaintiff interests can be understood as arguments that forum shopping leads to a race to an overly plaintiff-friendly bottom. This is essentially the argument of Klerman and Reilly in the domestic context, when they contend that in a subject matter with too many forum choices, individual courts and judges can become motivated to engage in “forum selling.”245 Ori Aronson similarly recognizes the possibility that “supply-side competition” over fora can lead to monopo- list results or a self-defeating “race to the bottom. 246 On the do-

Reorganizations, 54 Vand. L. Rev. 283, 286 (2001); Roberta Romano, Law as a Product: Some Pieces of the Incorporation Puzzle, 1 J.L. ECON. & ORG. 225, 227-32 (1985) (arguing it is a race to the top); Marcel Kahan & Ehud Kamar, The Myth of State Competition in Corporate Law, 55 STAN. L. REV. 679 (2002) (viewing Delaware Chancery Court as a mo- nopoly); Lucian Arye Bebchuk, Federalism and the Corporation: The Desirable Limits on State Competition in Corporate Law, 105 HARV. L. REV. 1435 (1992) (countering Romano’s argument with contentions that the state competition leads to a race to the bottom); Wil- liam L. Cary, Federalism and Corporate Law: Reflections upon Delaware, 83 YALE L.J. 663 (1974) (discussing race to the bottom). See also, O’Hara and Ribstein, The Law Market. 242 Donald Childress, General Jurisdiction and the Transnational Law Market, 66 Vand. L. Rev. En Banc 67, 68 (2013). 243 Donald Childress, General Jurisdiction and the Transnational Law Market, 66 Vand. L. Rev. En Banc 67, 68 (2013). 244 See Childress, Brave New World; Aronson, Coin Flip at 75 (applying market and racing concepts, in a general sense, to forum shopping). 245 See Klerman and Reilly. 246Aronson, at 75.

DRAFT—Please do not cite or circulate 56 BOOKMAN [6/16/2015 mestic front, this was essentially the argument of those who lob- bied Congress to enact CAFA.247 Do these arguments apply in the transnational context? There are three reasons not to fear that transnational forum shopping will inexorably lead to a race to an overly plaintiff-friendly bottom among national court systems. First, such fears are not playing out on a global scale in the market for transnational litigation today. Second, this contention neglects the parallel and potentially worse possibility that national judicial systems may “race” to an overly defendant-friendly bottom. Third, differences between the domestic and transnational contexts provide potential explanations for why the transnational context does not pose the same concerns.

1. Catering to plaintiffs?

First, if the “forum selling” that Klerman and Reilly describe as going on domestically were happening internationally, one would think that the United States and other countries (or at least some countries) would consistently make their courts more and more attractive to plaintiffs or certain kinds of plaintiffs. One could make the argument that this is occurring in terms of courts trying to make their localities attractive seats of arbitration248 or attractive options for choice of law and choice of forum clauses.249 But these are the kinds of forum shopping—ex ante, bilateral contract-based forum shopping—that typically receive praise in the literature and are seen as leading to a “race to the top,” toward more efficient law, since to be chosen the courts are supposed to appeal to both sides of the potential litigation. With respect to transnational tort litigation, the United States has been narrowing access to its courts over the past few

247 See Purcell, U. Pa. L. Rev. 248 Cites? 249 See Vogenauer (documenting competition for being the choice of law or forum selected).

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 57 decades with the developments discussed in Part II.250 The Su- preme Court left the door “slightly ajar” for transnational human rights litigation under the Alien Tort Statute—once the standard bearer for U.S. “universal” jurisdiction251—when it addressed the validity of causes of action under international law under the statute in Sosa.252 But since then, it has sentenced the ATS to a death by a thousand paper cuts with legal changes with effects that reach far beyond the international human rights context. This involves narrowing general jurisdiction253 and the extraterritorial reach of statutes,254 empowering forum non conveniens,255 and other means of reducing court access.256 This evidence directly re- buts the “race to the plaintiff-friendly bottom” argument. In the countries that seem to be expanding access to litigation generally and transnational litigation in particular, the expan- sion has been slow, measured, and cautious. European and other foreign lawmakers are particularly wary of recreating the Ameri- can litigation model.257 To the extent they are heading in a more plaintiff-friendly direction, they are dragging their feet, not racing. The Deutsche Telekom case is an example of a set of reforms that did not yield a particularly plaintiff-friendly result. Indeed, the reforms appear to have failed to provide an effective forum for private enforcement of German securities laws.258 The Dutch have

250 See supra Part II.B.1. 251 See Donovan & Roberts. 252 Sosa. 253 Goodyear; Daimler. 254 Morrison, Kiobel. 255 Sinochem; Alan Trammell, Sequencing. 256 See, e.g., Ed Purcell, U. Pa. L. Rev. (2015). 257 See supra Part II.B.2. 258http://classactionblawg.com/2012/05/16/finally-a-decision-in-the-groundbreaking- group-action-against-deutsche-telekom/ (“Time will tell whether the German experiment in group proceedings will be seen as a success. Concerns that the introduction of group litigation procedures in Europe will usher in a US-style litigation culture will no doubt be tem- pered by the fact that the defendant ultimately prevailed. On the other hand, the length of time that the it took for the model proceeding to be resolved raises legitimate questions about the long-term social utility and efficiency of the procedure. By comparison, class (continued next page)

DRAFT—Please do not cite or circulate 58 BOOKMAN [6/16/2015 been so wary about adopting transnational collective action mechanisms for consumer claims that they initially provided a forum only for the enforcement of settlements.259 And the new UK antitrust laws—which appear to be an unapologetic attempt to market the UK as a forum for the enforcement of European competition laws260—tred lightly on the traditional problems raised by global class actions by requiring foreign plaintiffs to opt-in.261 In other regions, the developments are usually also measured, with Ecuador and Nicaragua being the most famous counterexamples.262 But those judgments have faced major difficulties getting enforced abroad.263 Moreover, these cautious developments provide a forum where there otherwise might have been none. European directives calling for collective action mechanisms aim to create a forum in which private parties can vindicate rights under European law that were otherwise going unenforced.264 Not surprisingly, the United States does not typically offer a forum to vindicate these laws.265 To the extent that the United States historically was providing a forum for certain kinds of litigation, like global securi-

action litigation brought in the United States alleging prospective liability by U.S. investors against Deutsche Telekom arising out of the same offering was settled for more than $120 million more than seven years ago, in 2005.”). 259 See WCAM; cf. recent Dutch movements toward adopting collective action mechanisms for litigation. 260 This is consistent with other UK statements about viewing UK law and UK courts as a valuable “export.” See, e.g., http://www.justice.gov.uk/downloads/publications/corporate-reports/MoJ/legal-services- action-plan.pdf. 261 See supra notes xx and accompanying text. 262 See Bookman, Once and Future U.S. Litigation (describing Lago Agrio litigation in Ecuador and DBCP litigation in Nicaragua). 263 See Litigation Isolationism. 264 Cite directives. 265 See, e.g., [recent case declining to enforce EU consumer protections through US class action]; cf. Buxbaum & Michels, Jurisdiction and Choice of Law in International Antitrust Law – A US Perspective 225, 235-37 in INTERNATIONAL ANTITRUST LITIGATION: CONFLICT OF LAWS AND COORDINATION (Jürgen Basedow, Stéphanie Francq & Laurence Idot eds., 2012) (discussing cases in which US courts adjudicated claims under EU competition law pursuant to supplemental jurisdiction, and limitations on that method).

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 59 ties litigation, the availability of certain foreign courts creates a forum where the narrowing of U.S. jurisdiction otherwise would have left non-U.S. plaintiffs without court access altogether.

2. Catering to defendants?

This brings us to the second point, which is that forum shopping protects against the lack of court access altogether. Scholars have made this point in praising the redundancy of state and federal jurisdiction domestically.266 There are some locally confined cases that may naturally have only one potential forum. But in general when court access is important it may be better to have too many than too few. To be sure, the opposite of jurisdictional overlap is not, by definition, the lack of jurisdiction altogether. Jurisdictional overlap means there are two or more available jurisdictions to hear a case; the opposite is that there is either one or fewer (i.e., zero). But that zero option represents the overly defendant-friendly “bottom,” the opposite end of the race in the market for transnational litigation. It’s important to ensure that some jurisdiction is available, and at least in some cases, too many may be better than too few.267 This overly defendant friendly bottom should be, domestically but perhaps even more so internationally, of even greater concern than the overly plaintiff friendly one. The lack of meaningful court access is both easier to lose sight of and more likely to occur. Indeed, it is the state of affairs throughout much of the world. As Justice Jackson explained, “giv[ing] a plaintiff a choice of courts” is important “so that he may be quite sure of some place to pursue his remedy.”268 Strictly limiting forum choice to one option, e.g., a rule plaintiffs must sue in their home fora, or in the

266 See Robert Cover, Jurisdictional Redundancy, Wm & Mary L. Rev. 267 See Whytock & Robertson, Colum. L. Rev. (right to court access)? 268 Gulf Oil Corp v. Gilbert, 330 US 401, 507 (1945).

DRAFT—Please do not cite or circulate 60 BOOKMAN [6/16/2015 defendant’s home forum, would be more likely to lead to a situation where, for many suits, there was no forum available. The des- ignated forum might not in fact provide meaningful access to justice, either because it had an idiosyncratic rule limiting access or because the justice system was otherwise in some way inadequate. For many years (and still today), this was the premise upon which forum non conveniens motions were often made in U.S. courts: Defendants assumed or hoped that the “alternative available forum” would in fact turn out not to be a viable alternative forum.269 The lack of a meaningful available forum situation would likewise undermine “decisional harmony.” If your injury turned out to be transnational with the right connection to a viable court, you would be in luck; but if the manufacturer of the airplane you were on that crashed came from some other place, you were out of luck. That is a similar kind of injustice—one with inequalities of result based on accidents of territory or nationality. A similar outcome can result from the overbreadth of courts’ love affair with forum selection and arbitration clauses.270 Although enforcement of private choices to use these clauses fur- thers many laudable goals, the U.S. Supreme Court has enforced these clauses even in contexts in which it is unreasonable to as- sume that potential plaintiffs—usually consumers or employees— understood or had meaningful choices about the litigation rights they were forgoing.271 Several scholars have made this argument against the enforcement of arbitration clauses,272 but few have probed the problem in the context of pushing the law market, es-

269 See, e.g., BYU article on Piper Aircraft; Robertson survey of FNC dismissals; Litiga- tion Isolationism. 270 See NY long arm statute; Atlantic Marine; foreign courts enforcing forum selection and arbitration clauses. 271 See, e.g., Carnival Cruise; Burger King; Concepcion; Maria Glover; Judith Resnik. 272 See Klerman and Reilly

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 61 pecially the transnational law market, toward the overly defendant friendly bottom.273

3. Possible explanations

Klerman and Reilly and others make a compelling argument on the domestic side that broad jurisdictional choices can lead to unfair, overly plaintiff-friendly procedural rules under certain circumstances. Why might this not be happening in the transnational context? And why should lack of court-access—courts catering to defendant interests—be the greater concern?

One potential answer to the first question may be found in part in the broad definition of forum shopping with which we began. The concern about a race to an overly plaintiff-friendly bottom is particularly clear in the non-contract context, where the plaintiff is thought to control the forum choice unilaterally and therefore to have most if not all of the power in choosing the forum.274 But in fact, as Moore and Parisi explain, there are at least two decision points at which parties have control over factors that matter in the forum-shopping analysis. First, the decision to enter into the relationship with the other party; and second, the decision of where to file the lawsuit.275 Although in non-contract cases the plaintiff tends to choose the second decision point, that decision may be restricted by the realities of specific jurisdiction and other limitations on the colorableness of claims to venue. More im-

273 See [article describing the value of litigation even for non meritorious claims]; Grundfest & Huang, The Unexpected Value of Litigation, Stan. L Rev; Eisenberg [study on value of litigation in India]. 274 Klerman & Reilly, at 3. 275 In the United States, and primarily in other common law countries, there is a third stage at which the defendant has the opportunity to “reverse forum shop” to a more favorable forum through a transfer of venue or forum non conveniens motion. In the civil law tradition, this opportunity is usually confined to situations in which there is an earlier filed parallel litigation, in which case the later filed litigation may be dismissed or held pursuant to the doctrine of lis pendens.

DRAFT—Please do not cite or circulate 62 BOOKMAN [6/16/2015 portantly, in many of the typical kinds of cases that are criticized for spawning forum-shopping – e.g., securities class actions; antitrust class actions; product liability suits; consumer fraud – are circumstances in which the putative defendants either control initiation of the relationship or have much greater bargaining power in that initial relationship. In other words, some of what are perceived as pro-plaintiff biases of the litigation system simply counteract the inherently pro-defendant biases of the relationships between the parties.276 There are also important differences between the domestic and transnational forum shopping regimes. First, certain aspects of the domestic system facilitate rogue courts like the Eastern Dis- trict of Texas engaging in forum selling. On the international level, for example, there is no Full Faith and Credit Clause. If the East- ern District of Texas were a separate country trying to become the go-to forum for patent litigation, it would face an uphill battle in having its judgments recognized and enforced abroad. And the fact that few corporate assets are located in the Eastern District of Texas would make the forum unattractive because it might be hard-pressed to enforce its own judgments. Second, states are not just competing for transnational litigation (if and when they are competing for that at all). The same states may also compete with each other for business, assets, peo- ple, intellectual property, etc.277 Domestically, these forces may actually make U.S. courts push away litigation generally and transnational litigation in particular.278 The rosy picture of Dela- ware, for example, is that it caters to both shareholders and man- agement and yields positive legal outcomes because of its sensitiv- ities to both of those sides279—not to third party tort plaintiffs.280

276 Compare Klerman and Reilly (acknowledging that this may be the case, but dismissing the possibility in the circumstances they identify, which they later admit are the exception rather than the rule). 277 See Law Market; Tsilly Dagan. 278 See lit on courts being business friendly. 279 See Romano.

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 63

Internationally, competing for these other constituencies may contribute to staying the hands of foreign lawmakers and courts. Third, to the extent that foreign courts have expanded their reach, it has mostly been within the context of specific jurisdiction. That is, there is still a requirement that there be some kind of territorial or personality-based connection between the case and the forum. This is in part because of limitations in the development of exorbitant or universal jurisdiction, both of which have been negatively received in the court of international opinion. As a result, any given case may have more forum options than it pre- viously had, but it has a limited and different set of potential fora that may be available as compared to other cases that may be similar in certain ways. So for example a Dutch global securities class action settlement must have at least one plaintiff or defendant who is Dutch; suits against Facebook for violation of privacy laws must be brought in the country whose privacy laws are being invoked. This is different from the choices available to patent plaintiffs or corporations looking to file bankruptcy in the United States, which typically face a broad and consistent assortment of forum choices. A growth in universal jurisdiction might tell a different story and substantiate fears of a race to an overly plaintiff friendly bottom.281 But universal jurisdiction has not gained popularity or much respect,282 although the concept of forum of necessity may

280 For example, it may not be a coincidence that Delaware and New York both stand on the “business-friendly” side of a state court split as to whether employers and premises owners owe a duty of reasonable care to “take-home” asbestos plaintiffs. See, e.g., Yelena Kotlarsky, The "Peripheral Plaintiff": Duty Determinations in Take-Home Asbestos Cases, 81 Fordham L. Rev. 451, 476 (2012) (noting that these states hold there is no such duty). 281 Likewise, “the more that international courts move away from specific jurisdiction towards broader bases of jurisdiction, the more forum shopping will become a genuine problem (similar to overlaps between domestic courts).” Joost Pauwelyn & Luiz Eduardo Salles, Forum Shopping Before International Tribunals: (Real) Concerns, (Im)possible Solu- tions, 42 Cornell Int'l L.J. 77, 84-85 (2009) (footnote omitted). 282 See supra [Spiro quote].

DRAFT—Please do not cite or circulate 64 BOOKMAN [6/16/2015 eventually take its place in certain fora.283 Instead, most of these developments are the results of foreign lawmakers creating laws and procedures to benefit or regulate their own citizens. This raises a fourth difference: For nations to race to accommodate transnational litigation, they might have to be motivated to provide court access for foreigners, which seems unlikely.

IV. EMBRACING FORUM SHOPPING AND ITS LESSONS

A. Embracing Forum Shopping

The first goal of this Article is to promote the understanding jurisdictional concurrence and forum shopping as important, necessary parts of our transnational system and strict uniformity as both unattainable and unattractive. The forum shopping that grows out of jurisdictional overlap, moreover, can be beneficial as it promotes experimentation and reform. In short, parties play an important role in the development of procedures that regulate litigation generally and transnational litigation in particular. And in almost everything they do, on both sides of the “v,” long before and after litigation is commenced, parties act strategically to “take advantage” of existing procedures or to push the envelope to expand or contract them.

B. Lessons for US Law

Inquiries into and speculation about litigants’ motivations, therefore, are inappropriate, and should be excised from jurisdictional analysis. Accordingly, with respect to US doctrinal developments, forum non conveniens, change of venue motions, etc. shouldn’t consider litigants’ “motives.”284 Most concretely, this would eliminate the differential deference to the plaintiff’s forum

283 See [Litigation Isoaltionism]. 284 Cf. Iragorri (2d Cir.) (considering whether plaintiff chose forum for “forum- shopping reasons”).

DRAFT—Please do not cite or circulate 6/16/2015] Global Laboratories of Procedure 65 choice under the current state of forum non conveniens doctrine, which affords greater deference to a domestic plaintiff than to a foreign one.285 The focus instead should be on the legitimacy of the forum’s exercise of jurisdiction. This is typically understood through real connections between the parties, the case, and the forum. One example of problematic forum shopping is where plaintiffs (or defendants) seek out a forum that in fact has little or no connection to the case.286 Those cases should be denied jurisdiction if they lack sufficient connections to the case, as is appropriate under most doctrines of jurisdiction.287 Going forward, the emphasis should be on specific jurisdiction and bases of general jurisdiction that are widely respected, such as “at home” jurisdiction. Many countries are coming to this consensus through domestic chan- nels, internally clamping down on bases of jurisdiction traditionally viewed as “exorbitant”.288 Likewise, the broad, value-neutral definition of forum shopping should press courts and scholars to identify what “evil” can truly come from forum shopping aside from the disparage- ment of “strategic” party conduct. Most agree that forum shopping in the form of duplicative parallel or consecutive litigation is indeed burdensome on courts, inefficient and unfair to parties.289 As I’ve argued elsewhere, the United States should adopt a modi- fied lis pendens approach to deal with this problem more effectively.290

285 See Litigation Isolationism; Stephen B. Burbank, A Tea Party at the Hague?, 18 Sw. J. Int'l L. 629, 636-37 (2012) (studying the Brussels regime and the draft Hague provisions “ma[kes] clear the extent to which forum non conveniens doctrine that distinguishes between plaintiffs solely by reason of nationality is offensive to other countries”). 286 See Canadian court adopting this definition of forum shopping. 287 See [US, Canada, Europe]. 288 See, e.g., Daimler [other examples?]. 289 See Kevin Clermont, Res Judicata article (2015). 290 See Litigation Isolationism; ALI Recognition of Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute; Linda Silberman.

DRAFT—Please do not cite or circulate 66 BOOKMAN [6/16/2015

[Readers: Here are some additional questions I am still considering. Thank you for your feedback.] What could / should be done by Congress or U.S. states? What is the best way to lessen the “wasted” time and effort spent on determining jurisdiction / choosing best forum? In- creased certainty about jurisdiction or enforceability? This Article has focused mainly on developments in the United States and Europe, and to some extent in the Common- wealth. Some of the developments examined here, such as the ex- pansion of collective action mechanisms, are also apparent in other areas of the world.291 But grappling with developing countries’ court systems is noticeably absent. Does the argument apply with any force in those systems? Also, to date, to the extent that those systems do not offer financially viable or otherwise available or favorable fora for the resolution of disputes—national or transnational—they are stuck at the “overly defendant friendly” end of the market spectrum, and are further proof of this hypothesis that moving away from this “bottom” is the more pressing concern for global judicial initiatives.

291 See Litigation Isolationism; Gidi.

DRAFT—Please do not cite or circulate