Article by Friedrich K. Juenger
My topic has a bad name. As a rule, counsel, judges, and academicians employ the term ‘forum shopping’ to reproach a litigant who, in their opinion, unfairly exploits jurisdictional or venue rules to affect the outcome of a lawsuit. But in spite of the phrase's pejorative connotation, forum shopping remains popular. Without much exaggeration, Judge Skelly Wright called it ‘a national legal pastime.’ LEXIS reports that between January 1, 1988 and November 1, 1988, no fewer than eighty-six federal and forty-one state court opinions have used that expression. Whatever opprobrium some legal minds may attach to it, counsel's jockeying for position is not universally condemned. Then Justice Rehnquist, for one, sanguinely countenanced the ‘litigation strategy of countless plaintiffs who seek a forum with favorable substantive or procedural rules or sympathetic local populations.’
The disparaging phrase ‘forum shopping’ has been around for some time. The first mention in a judicial opinion dates from 1952, but it is probably much older. Professor Leflar told me that he used this turn of phrase when he began teaching conflicts law in 1927, and that he might have heard it when he took Professor Beale's conflict of laws class. However, I am not aware of any American in-depth study, empirical or otherwise, that focuses on this important phenomenon. Thirty years ago, Brainerd Currie suggested taking ‘a harder and closer look at the ideal of uniformity and the condemnation of forum-shopping,’ but none of his many disciples seems to have given the matter much thought. Such neglect is deplorable because the subject has important implications for domestic and international practice as well as for legal theory.
About the Author
Friedrich K. Juenger. Professor of Law, University of California, Davis; M.C.L. 1957, University of Michigan; J.D. 1960, Columbia University.
Citation
63 Tul. L. Rev. 553 (1989)