Forum-shopping, Venues, Federal courts, Transfer of venue, Transfer effect
Applied Statistics | Civil Procedure | Judges | Jurisdiction | Litigation
Most of the business of litigation comprises pretrial disputes. A common and important dispute is over where adjudication should take place. Civil litigators deal with nearly as many change-of-venue motions as trials. The battle over venue often constitutes the critical issue in a case.
The American way is to provide plaintiffs with a wide choice of venues for suit. But the American way has its drawbacks. To counter these drawbacks, an integral part of our court systems, and in particular the federal court system, is the scheme of transfer of venue "in the interest of justice." However, the leading evaluative articles criticize the scheme because of the supposedly high number of transfer motions and the costs they add to the litigation system. On this scanty basis, the authors call for abolishing transfer of venue.
Utilizing a database of the three million federal cases terminated over thirteen recent years, we take a closer look. Most importantly, we see that the plaintiffs' rate of winning drops from 58% in cases in which there is no transfer to 29% in transferred cases. This dramatic effect prevails over the range of substantively different types of cases. A big part of the most probable explanation for this drop is that plaintiffs are indeed forum-shopping, but that courts are transferring cases to more just courts, so that the decrease in the win rate reflects the fact that courts are stripping plaintiffs of unjust forum advantages. Statistical analysis supports this explanation and, at long last, demonstrates that forum does affect outcome.
Further examination of reported and unreported cases suggests that the burdens of operating the transfer scheme are small. Thus, by revealing that transfer has the benefit of countering forum-shopping, and does so without undue burden, this study argues that preserving the transfer-of-venue scheme is a good policy choice.
Clermont, Kevin M. and Eisenberg, Theodore, "Exorcising the Evil of Forum-Shopping" (1995). Cornell Law Faculty Publications. Paper 245.
Published in: Cornell Law Review, vol. 80, no. 6 (September 1995).