Judges decide cases. Do they also try to influence which cases they decide? Plaintiffs “shop” for the most attractive forum, but do judges try to attract cases by “selling” their courts? Some American judges actively try to enlarge their influence by making their courts attractive to plaintiffs, a phenomenon known as “forum selling.” This Article shows that forum selling occurs outside the United States as well, focusing on Germany, a country that is often held up as the paragon of the civil law approach to adjudication. As in the United States, German courts attract cases primarily through the pro-plaintiff manipulation of procedure, including the routine issuance of ex parte injunctions in press cases and refusal to stay patent infringement proceedings when the patent’s validity is challenged in another forum. A critical difference between forum selling in Germany and the United States is that court administrators are more actively involved in Germany. As state officials, German court administrators have the incentive to consider the effect of caseloads on government revenue and the local economy, and they use their power to allocate judges to particular kinds of cases in order to make their courts attractive. They also use their power over promotion, case allocation, and resources to reward judges who succeed in attracting cases. Based on an extensive set of interviews with attorneys, judges, and court officials, this Article describes evidence of forum selling in German patent, press, and antitrust law. It also analyzes how German courts compete internationally with courts of other countries.
Forum shopping is problematic because it may lead to forum selling. For diverse motives, including prestige, local benefits, or re-election, some judges want to hear more cases. When plaintiffs have wide choice of forum, such judges have incentives to make the law more pro-plaintiff because plaintiffs choose the court. While only a few judges may be motivated to attract more cases, their actions can have large effects because their courts will attract a disproportionate share of cases. For example, judges in the Eastern District of Texas have attracted patent plaintiffs to their district by distorting the rules and practices relating to case assignment, joinder, discovery, transfer, and summary judgment. As a result of these efforts, more than a quarter of all patent infringement suits were filed in the Eastern District of Texas in 2014. Consideration of forum selling helps justify constitutional constraints on personal jurisdiction. Without constitutional limits on jurisdiction, some courts are likely to be biased in favor of plaintiffs in order to attract litigation. This Article explores forum selling through five case studies: patent litigation in the Eastern District of Texas and elsewhere; class actions and mass torts in “magnet jurisdictions” such as Madison County, Illinois; bankruptcy and the District of Delaware; ICANN domain name arbitration; and common law judging in early modern England.
Monies reserved to settle class action lawsuits often go unclaimed because absent class members cannot be identified or notified or because the paperwork required is too onerous. Rather than allow the unclaimed funds to revert to the defendant or escheat to the state, courts are experimenting with cy pres distributions—they award the funds to charities whose work ostensibly serves the interests of the class “as nearly as possible.”
Although laudable in theory, cy pres distributions raise a host of problems in practice. They often stray far from the “next best use,” sometimes benefitting the defendant more than the class. Class counsel often lacks a personal financial interest in maximizing direct payments to class members because the fee is just as large if the money is paid cy pres to charity. And if the judge has discretion to select the charitable recipient of the unclaimed funds, she may select her alma mater or another favored charity, thereby creating an appearance of impropriety.
The Supreme Court’s decision to bar the foreign discoverability requirement in Intel Corp. v. Advanced Micro Devices, Inc. has led district courts after Intel to render troubling and inconsistent decisions on whether to grant requests for discovery for use in foreign tribunals under 28 U.S.C. § 1782(a). Because Intel gave district courts no guidelines for evaluating foreign tribunals’ receptivity to discovery acquired in the United States, § 1782(a)’s goals of fostering international judicial cooperation and providing efficient resolutions offoreign cases have gone unfulfilled.
This Review explores the story of Floride Norelus—an undocumented Haitian immigrant—her civil rights lawyers, and the judges who did not believe them. The backdrop for Norelus’s story comes out of Ariela J. Gross’s new book, What Blood Won’t Tell: A History of Race on Trial in America. In What Blood Won’t Tell, Gross, an elegant historian and eloquent storyteller, enlarges an already distinguished body of work on slavery, race, and antebellum trials to investigate the changing meaning of identity in law and litigation. Bridging the study of law and culture, she constructs, or rather reconstructs, identity—both race and gender—from the artifacts of local knowledge expressed in social performance and scientific expertise. Gross points to two “key moments” in American history when racial and gender identity were “particularly fraught”—initially, when “racial identity trials shifted from more routine adjudications of ancestry to intense contests about science and performance,” and subsequently, when jingoist and nativist movements ignited “efforts to define the boundaries of citizenship racially.” During these moments, she notes, the forum for the “determination of racial identity” moved to the local courthouse, “a key arena throughout the nineteenth century for struggles over identity.” At local courthouses, Gross explains, trials of racial and gender identity “reverberated through American culture.” Indeed, for Gross and others, the “cultural arena” of the courthouse and the legal case at stake “could fix the identity of an individual or an entire national group with a conclusiveness that was hard to overturn.”
Shortly after the tragic events of September 11, 2001, Congress passed the Air Transportation Safety and System Stabilization Act (“ATSSSA”). The September 11th Victim Compensation Fund (“VCF”) was the centerpiece of the statute and provided a source of no-fault compensation to the tragedy’s victims and victims’ families. The ATSSSA also permitted victims to pursue traditional litigation instead.
The ATSSSA contains three “jurisdictional” features that have shaped the path of the litigation. The Act created a federal cause of action “for damages arising out of” the terrorist-related aircraft crashes and gave the Southern District of New York original and exclusive jurisdiction over all actions “resulting from or relating to the terrorist-related aircraft crashes.” Finally, it implemented a liability cap by limiting recovery in all actions to the defendants’ available liability insurance. These jurisdictional aspects of the “traditional” litigation option under the ATSSSA contain unusual and practically unprecedented elements, yet they have received almost no scholarly attention. This Article attempts to fill that gap by telling the story of the course of the September 11th litigation, tracking the challenges and issues that have arisen as a result of the ATSSSA’s coordination mandate, and exploring the relationship between federalization of forum and aggregation of claims.
This Article examines the propriety of having federal courts afford deference to state law interpretations reached by lower federal court judges. Two Supreme Court decisions from the 1990s seemed substantially to circumscribe such deference. But in fact subsequent Court cases continue to afford deference. Moreover, such deference can be normatively valuable. This Article argues in favor of the use of deference in appropriate circumstances, including situations where the district court and court of appeals agree on the proper interpretation of state law, and where answers to state law questions are obtained through an intrafederal certification regime.