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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 re- sources on the forum question is wasteful, and that courts catering to plaintiffs to attract litigation leads to the development of laws that inef- ficiently 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 under- standing 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 trans- national 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 DRAFT—Please do not cite or circulate 6/16/2015 INTRODUCTION ........................................................................................ 2 I. WHO’S AFRAID OF FORUM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 im- portant. 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 determina- tions—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 fo- rum hears a case—gets a bad rap.2 According to courts and schol- ars, 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, es- pecially transnationally,3 raising issues that extend far beyond the classic domestic debates. With the “growing globalization of liti- gation”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 do- mestic example, a plaintiff may have the opportunity to sue in ei- ther state or federal court, possibly in multiple states.5 This oppor- tunity 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 ineffi- cient; 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 “re- dundant 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 de- fendants 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 compa- ny’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 juris- diction, 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, partic- ularly in driving legal experimentation and reform. Forum choice can facilitate diffusion of ideas, policies, and institutions that ad- dress the challenges of private international law. And contrary to conventional wisdom, this diffusion is not in a uniquely
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