Whytock: The Evolving Forum Shopping System

Christopher A. Whytock (Univ. of Utah - Law) has posted The Evolving Forum Shopping System (Cornell Law Review, forthcoming). Here's the abstract:

This Article challenges the claim that the United States is experiencing a transnational litigation explosion. According to conventional wisdom, the United States has a forum shopping system with two features that encourage plaintiffs to file suits in U.S. courts, even when those suits involve foreign parties or foreign activity: a permissive approach to personal jurisdiction, which gives plaintiffs broad court access; and a strong tendency of U.S. judges to apply plaintiff-favoring domestic law. The forum shopping system is said to contribute to a rising tide of transnational litigation in the United States. Scholars and interest groups have therefore proposed new anti-forum-shopping measures aimed at curtailing transnational litigation in U.S. courts.

Contrary to that understanding, this Article shows that the forum shopping system has evolved, and that it no longer encourages plaintiffs to pursue transnational suits in U.S. courts to the extent it supposedly once did; and it presents empirical evidence that transnational litigation in the United States may have actually decreased, not increased, over the last two decades. The Article thus provides a new, empirically grounded understanding of the American forum shopping system and its impact on transnational litigation. The analysis suggests that new anti-forum-shopping measures may not be as urgent or necessary as their advocates claim. If adopted, such measures could risk unduly limiting access to justice for both American and foreign citizens who, in our era of globalization, are increasingly affected by transnational activity.