Forum shopping, Transfer of venue, Federal courts, Removal effect, David Steinberg
Civil Procedure | Courts | Jurisdiction | Litigation
We have three things to think about here, as the real estate agents say—“location, location, location.” Accordingly, the two of us have engaged for several years in empirical studies aimed at gauging the effect of forum on case outcome. The results to date strongly suggest that forum really matters. An early piece of the puzzle fell into place in our study of venue. In that article, we examined the benefits and costs of the federal courts scheme of transfer of civil venue “in the interest of justice.” Ours was a pretty straightforward and simple cost-benefit analysis, but we supported it with some fairly elaborate data.
Now Professor David Steinberg, after some kind introductory words, responds, “I disagree with almost all of their conclusions.” He specifies: “First, by including cases where courts have entered default judgments, Professor Clermont and Professor Eisenberg exaggerate the effect, if any, that the choice of forum has on the outcome of a case. Second, Professor Clermont and Professor Eisenberg do not demonstrate that transfers lead to more accurate outcomes. Instead, their data only supports the conclusion that a defendant’s chance of winning a case improves if the defendant has selected the forum through a transfer motion. Third, Professor Clermont and Professor Eisenberg understate the costs and appropriateness of transfer under the open-ended standard currently employed in section 1404(a) litigation. Fourth, if Professor Clermont and Professor Eisenberg are correct that forum shopping is both pervasive and effects outcomes, Congress or the courts should address this problem directly by limiting the geographic choices available to a plaintiff bringing a federal court suit. Such an approach would address any inequities resulting from forum shopping far more universally and efficiently than the case-by-case transfers currently employed under section 1404(a).”
We believe that our article met Professor Steinberg’s first three arguments. As to his fourth point, however, we are in agreement. At any rate, we shall reply to Professor Steinberg’s four arguments in order.
Clermont, Kevin M. and Eisenberg, Theodore, "Simplifying the Choice of Forum: A Reply" (1997). Cornell Law Faculty Publications. Paper 227.
Published in: Washington University Law Quarterly, vol. 75, no. 4 (Winter 1997).