The Unsung Virtues of Global Forum Shopping

Pamela K. Bookman*

Forum shopping gets a bad name. This is even more true in the context of transnational litigation. The term is associated with unprincipled gamesmanship and undeserved victories. Courts therefore often seek to thwart the practice. But in recent years, exaggerated perceptions of the “evils” of forum shopping among courts in different countries have led U.S. courts to impose high barriers to global forum shopping. These extreme measures prevent global forum shopping from serving three unappreciated functions: protecting access to justice, promoting private regulatory enforcement, and fostering legal reform.

This Article challenges common perceptions about global forum shopping that have supported recent doctrinal developments. It traces the history of concerns about global forum shopping and distinguishes between domestic and global forum shopping to discern the core objections to the practice. It then identifies these unappreciated virtues of global forum shopping and suggests balanced ways for courts to protect them.

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© 2016 Pamela K. Bookman. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Assistant Professor of Law, Temple University Beasley School of Law. For helpful conversations and comments on earlier drafts, I am grateful to Trey Childress, Zachary Clopton, Harlan Cohen, Rosalind Dixon, Scott Dodson, David Gartner, Michael Halberstam, Rebecca Hamilton, Adi Leibovitch, Henry Monaghan, Tejas Narechania, David Noll, Liz Porter, David Pozen, Greg Reilly, Aaron Simowitz, Christina Skinner, Paul Stephan, Alan Trammell, Chris Whytock, Ryan Williams, my colleagues at Temple University Beasley School of Law, and participants in the Columbia Law School Associates & Fellows Workshop, Junior International Law Scholars Association 2015 Annual Meeting, 2015 Philadelphia International Law Summer Workshop, First Annual Civil Procedure Workshop, 2015 Junior Faculty Colloquium at Rutgers Law School-Newark, Fifth Annual ASIL Research Forum, ASIL International Economic Law Interest Group Workshop, and the American Society of Comparative Law Younger Comparativists Conference. This Article also received useful commentary, especially from Ingrid Wuerth, Erin O’Hara O’Connor, and Kevin Stack, at the 2016 Branstetter New Voices in Civil Justice Workshop at Vanderbilt Law School. This work was generously supported by a summer grant from the Beasley School of Law. I am indebted to Rachel Broder, Emily Kimmelman, and IbnDevin Uqdah for excellent research assistance.