Article by David Marcus
Forum selection clause enforcement doctrine in the federal courts has splintered in a number of ways, making a clause enforcement decision in any particular case uncertain and confused. This doctrinal disarray has resulted from an apparent inconsistency among the three major United States Supreme Court opinions on clause enforcement. This Article provides a new history of the development of this doctrine that finds enforcement of clauses in the federal courts much earlier than standard accounts provide. This doctrine's roots in a body of admiralty decisions that laid the groundwork for forum non conveniens highlight the public interests at stake in venue selection, interests that contemporary courts and commentators largely have ignored as they make enforcement turn on private expressions of contractual consent. A historically informed reading of the Supreme Court's clause enforcement trio offers a doctrinally coherent and theoretically principled clause enforcement approach that can better serve the public and private interests that these clauses put at stake.
The forum selection clause is often cited as the paradigmatic example of “contract procedure,” or efforts by parties to control procedural issues by contract. The unhappy state of clause enforcement doctrine shows how contract has followed a bumpy path as it has migrated into procedure. This Article contrasts tenets of contract theory with interests implicated by procedural problems that are not amenable to private ordering. Guided by the revised history of clause enforcement doctrine, the Article argues for limits on the degree to which parties can reorder procedural doctrine by contract.
About the Author
David Marcus. Associate Professor of Law, University of Arizona Rogers College of Law. A.B. 1998, Harvard University; J.D. 2002, Yale Law School.
Citation
82 Tul. L. Rev. 973 (2008)