jurisdiction. Indeed, the decade-long negotiations at The Hague on a judgments convention hun up on national differences over the appropriate jurisdictional provisions, although also uncovering other formidable roadblocks to success I submit that these tendencies to stress jurisdiction--on the part of teachers, lawyers, courts, and negotiators, respectively--are not irrational at all. In several senses, jurisdiction is the queen of private international law doctrines. It deserves its emphasis. It is a place to begin seeking cooperative development of private international law and international private law. And it place to begin not only because its importance in practice and theory pleads for international agreement, but also because apparent national differences suggest that it will prove to be a stickin point in any negotiations. I. IMPORTANCE OF JURISDICTION IN PRACTICE AND THEORY A. Forum Really Affects Outcome What is the actual effect of forum selection on the outcome of cases? practitioners and policymakers share an obvious interest in this question. Ted Eisenberg and I have previously used empirical methods to investigate the effect of forum in the context of removal from state to federal court24 and in the context of transfer of venue between federal district courts 25 Utilizing a database of the three million civil cases terminated in the federal district courts over recent years, the research 2See Samuel P Baumgartner, The Proposed Hague Convention on Jurisdiction and Foreign Judgments: Where We Are and the road Ahead, 4 EUR J. L REFORM 219(2002); Kevin M. Clermont, An Introduction to the Hague Convention, in A GLOBAL LAW OF JURISDICTION AND JUDGMENTS: LESSONS FROM THE HAGUE 3 ( John J. Barcelo lll& Kevin M. Clermont eds, 2002); Kevin M. Clermont, Jurisd ictional Salvation and the Hague Treaty, 85 CORNELL L Rev.89(1999) [hereinafter Salvation See Arthur Taylor von Mehren, Theory and Practice of Adjudicatory Authority in Private InternationalLaw A Comparative Study of the Doctrine, Policies and Practices of Common- and Civil-Law Systems, 295 RECUEIL DES COURS 9, 408-25 (2002). For the latest suggestion ofthe content of any eventual convention, which would treat exclusive choice-of-court agreements in business to-business contracts, see the Hague Conference on Private International Law Websiteathttp://www.hcch.net/e/workprog/jdgm.htmlPeterD.Trooboff,Choice-of-courtClausesNatll.j.,Jan. 2004, at 14; Hague Delegates Find Consensus, Narrow Disputes, As Diplomatic Conference Nears, 72 U.S. L w 2689(2004). Kevin M. Clermont Theodore Eisenberg, Do Case Outcomes Really Reveal Anything About the Legal System? Win Rates and Removal Jurisdiction, 83 CORNELL L REv. 581(1998)(discussing removal under 28 U.S.C. S 1441)[hereinafter Removal. Forum-Shopping, supra note 16(discussing transfer under 28 U.SC.$ 1404(a), which provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. ") see also Kevin M. Clermont Theodore Eisenberg, Simplifying the Choice of Forum: A Reply, 75 WASH. U.L.Q. 1551(1997)
5 22See Samuel P. Baumgartner, The Proposed Hague Convention on Jurisdiction and Foreign Judgments: Where We Are and the Road Ahead, 4 EUR. J.L. RE FO RM 219 (2002); Kevin M. Clermont, An Introduction to the Hague Convention, in A GLOBAL LAW OF JURISDICTION AND JUDGM ENTS: LE SSONS FROM THE HAGUE 3 (John J. Barceló III & Kevin M. Clermont eds., 2002); Kevin M. Clermont, Jurisdictional Salvation and the Hague Treaty, 85 COR NELL L. REV. 89 (1999) [hereinafter Salvation]. 23See Arthur Taylor von Mehren, Theory and Practice of Adjudicatory Authority in Private International Law: A Comparative Study of the Doctrine, Policies and Practices of Common- and Civil-Law Systems, 295 RECUEIL DES COURS 9, 408-25 (2002). For the latest suggestion of the content of any eventual convention, which would treat exclusive choice-of-court agreements in business-to-business contracts, see the Hague Conference on Private International Law’s Website, at http://www.hcch.net/e/workprog/jdgm.html; Peter D. Trooboff, Choice-of-Court Clauses, NAT’L L.J., Jan. 19, 2004, at 14; Hague Delegates Find Consensus, Narrow Disputes, As Diplomatic Conference Nears, 72 U.S.L.W. 2689 (2004). 24Kevin M. Clermont & Theodore Eisenberg, Do Case Outcomes Really Reveal Anything About the Legal System? Win Rates and Removal Jurisdiction, 83 COR NELL L. REV. 581 (1998) (discussing removal under 28 U.S.C. § 1441) [hereinafter Removal]. 25Forum-Shopping, supra note 16 (discussing transfer under 28 U.S.C. § 1404(a), which provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”);see also Kevin M. Clermont & Theodore Eisenberg, Simplifying the Choice of Forum: A Reply, 75 WASH. U. L.Q. 1551 (1997). jurisdiction.22 Indeed, the decade-long negotiations at The Hague on a judgments convention hung up on national differences over the appropriate jurisdictional provisions, although also uncovering other formidable roadblocks to success.23 I submit that these tendencies to stress jurisdiction—on the part of teachers, lawyers, courts, and negotiators, respectively—are not irrational at all. In several senses, jurisdiction is the queen of private international law doctrines. It deserves its emphasis. It is a place to begin seeking “cooperative development of private international law and international private law.” And it is a place to begin not only because its importance in practice and theory pleads for international agreement, but also because apparent national differences suggest that it will prove to be a sticking point in any negotiations. II.IMPORTANCE OF JURISDICTION IN PRACTICE AND THEORY A. Forum Really Affects Outcome What is the actual effect of forum selection on the outcome of cases? Practitioners and policymakers share an obvious interest in this question. Ted Eisenberg and I have previously used empirical methods to investigate the effect of forum in the context of removal from state to federal court24 and in the context of transfer of venue between federal district courts.25 Utilizing a database of the three million civil cases terminated in the federal district courts over recent years, the research
shows that plaintiffs win much more often when they get to choose the forum. Forum matters Let us define" win rate"as the fraction of plaintiff wins among all judgments for either plaintiff or defendant. Our removal article shows that plaintiffs,win rate in removed cases is very low, compared to original cases in federal court and to state cases. For example, the win rate in original diversity cases is 71%, but for removed diversity cases only 34% The explanation could be the ready one based on the purpose of removal: the defendants thereby defeat the plaintiffs forum advantage and shift thebiases, inconveniences, court quality, and procedural law(but not substantive law)in the defendants' favor. Alternatively, the explanation might lie not in forum impact but instead incase selection" that causes us to be comparing two incomparable groups of cases. Admittedly, removed cases are somewhat different in kind from nonremoved cases. Perhaps, the group of removed cases concentrates the cases that are hard to win, explaining the drop in win rate; that is, removed cases might simply be a set of weak cases involving (i) out-of-state defendants who have satisfied or settled all but plaintiffs' weakest cases or (ii) plaintiff attorneys who have already demonstrated their incompetence by exposing their clients to removal. So, is the explanation forum impact or is it case selection? The observed effect of a dropping win rate after removal prevails across the range of different substantive types of cases, which argues against the drop being a mere case-selection effect Moreover, to isolate the effect on outcome of removal all by itself, one can use the mathematical technique of regression, which is a statistical tool that helps in choosing the nonremoved cases most comparable in kind to the removed cases under study and thus in neutralizing the case-selection effect. Such detailed analysis indicates that forum impact is at work, along with some case selection. After a regression controlling for many case variables-such as circuit, year, case category, amount demanded, procedural development at termination, method of disposition, and kind of subject-matter jurisdiction--the impact of removal remains sizable and significant. The analysis indicates a residual effect of removal, all by itself, that would reduce 50% odds of a plaintiffs win to about 39% in diversity cases. This 11%o reduction from hypothetically even odds represents the impact of the changed forum on the case-the removal effect. In brief, forum really does affect outcome, with removal taking the defendant to a much more favorable forum We also studied the transfer effect, whereby the win rate drops markedly after transfer of venue. Plaintiffs win rate in federal civil cases drops from 58% in cases in which there is no transfer to 29% in transferred cases For the transfer effect, the loss of a favorable forum seems to be the primary explanation, For easy access to part of this database-gathered by the Administrative office of the United States Courts, assembled by the Federal Judicial Center, and disseminated by the Inter-university Consortium for Political and Social Research-see Theodore Eisenberg Kevin M. Clermont, Judicial Statistical Inquiry Form, at http://teddy.law.cornell.edu:8090/questata.htmdiscussedinTheodoreEisenberg&KevinM.ClermontCourtsin Cyberspace, 46 J LEGAL EDUC. 94(1996); see also Kevin M. Clermont Theodore Eisen berg, Litigation Realities, 88 CORNELL L. REV. 119(2002)(summarizing the range of such empirical research) See Kevin M. Clermont Theodore Eisenberg, Xenophilia in American Courts, 109 HARV. L REV. 1120. 1129-32(1996) hereinafter Xenophilia]. Multivariate regression is a statistical technique that quantifies the influence of each of several factors(independent variables)on the phenomenon being studied (dependent variab le). See generally O. FIN in BRUCe LEVIN, STATISTICS FOR LAWYERS chs 13-14(2d ed. 2001)(applying regression analysis to various legal issues)
6 26For easy access to part of this database—gathered by the Administrative Office of the United States Courts, assembled by the Federal Judicial Center, and disseminated by the Inter-university Consortium for Political and Social Research—see Theodore Eisenberg & Kevin M. Clermont, Judicial Statistical Inquiry Form, at http://teddy.law.cornell.edu:8090/questata.htm, discussed in Theodore Eisenberg & Kevin M. Clermont, Courts in Cyberspace, 46 J. LEGA L EDUC. 94 (1996); see also Kevin M. Clermont & Theodore Eisenberg, Litigation Realities, 88 COR NELL L. REV. 119 (2002) (summarizing the range of such empirical research). 27See Kevin M. Clermont & Theodore Eisenberg, Xenophilia in American Courts, 109 HARV. L. REV. 1120, 1129-32 (1996) [hereinafter Xenophilia]. Multivariate regression is a statistical technique that quantifies the influence of each of several factors (independent variables) on the phenomenon being studied (dependent variable). See generally MICHAEL O. FINKELSTEIN & BRUCE LEV IN, STATISTICS FOR LAWYERS chs. 13-14 (2d ed. 2001) (applying regression analysis to various legal issues). shows that plaintiffs win much more often when they get to choose the forum.26 Forum matters. Let us define “win rate” as the fraction of plaintiff wins among all judgments for either plaintiff or defendant. Our removal article shows that plaintiffs’ win rate in removed cases is very low, compared to original cases in federal court and to state cases. For example, the win rate in original diversity cases is 71%, but for removed diversity cases only 34%. The explanation could be the ready one based on the purpose of removal: the defendants thereby defeat the plaintiffs’ forum advantage and shift the biases, inconveniences, court quality, and procedural law (but not substantive law) in the defendants’ favor. Alternatively, the explanation might lie not in forum impact but instead in “case selection” that causes us to be comparing two incomparable groups of cases. Admittedly, removed cases are somewhat different in kind from nonremoved cases. Perhaps, the group of removed cases concentrates the cases that are hard to win, explaining the drop in win rate; that is, removed cases might simply be a set of weak cases involving (i) out-of-state defendants who have satisfied or settled all but plaintiffs’ weakest cases or (ii) plaintiff attorneys who have already demonstrated their incompetence by exposing their clients to removal. So, is the explanation forum impact or is it case selection? The observed effect of a dropping win rate after removal prevails across the range of different substantive types of cases, which argues against the drop being a mere case-selection effect. Moreover, to isolate the effect on outcome of removal all by itself, one can use the mathematical technique of regression, which is a statistical tool that helps in choosing the nonremoved cases most comparable in kind to the removed cases under study and thus in neutralizing the case-selection effect.27 Such detailed analysis indicates that forum impact is at work, along with some case selection. After a regression controlling for many case variables—such as circuit,year,case category, amount demanded, procedural development at termination, method of disposition, and kind of subject-matter jurisdiction—the impact of removal remains sizable and significant. The analysis indicates a residual effect of removal, all by itself, that would reduce 50% odds of a plaintiff’s win to about 39% in diversity cases. This 11% reduction from hypothetically even odds represents the impact of the changed forum on the case—the removal effect. In brief, forum really does affect outcome, with removal taking the defendant to a much more favorable forum. We also studied the transfer effect, whereby the win rate drops markedly after transfer of venue. Plaintiffs’ win rate in federal civil cases drops from 58% in cases in which there is no transfer to 29% in transferred cases. For the transfer effect, the loss of a favorable forum seems to be the primary explanation
because we were able more easily to discount explanations based on differences in the strength of nontransferred and transferred cases. That is, the win rate declines largely because the plaintiff has lost a forum advantage. a plaintiffs odds would drop after transfer of venue from 50%to 40%, after controlling for all available variables. Neither the court system nor the applicable law changes after transfer, so we must be seeing only the effects of a strongly shifted balance of inconveniences and a shift of local biases. Still, such a big effect of transfer in reducing the win rate is not surprising Transferred cases comprise those cases where the forum advantage would be the greatest. After all the plaintiff tried to forum-shop, the defendant chose to fight back, and the court in granting transfer decided that the forum really mattered. The transferred plaintiffs all lost a big forum advantage and thus litigated less successfully in the unfavorable forum, so the win rate dropped A normative lesson emerges here too. Given the nature of transfer, the transferee forum is usually a more just forum giving a more accurate outcome. Under the governing statute's terms transfer undoes the plaintiffs forum advantage only when the " interest of justice"so counsels, and therefore undoes the plaintiffs opportunity to gain an unjust victory in litigation(or to achieve an unjust settlement--our research showed the effect of transfer seen in judgments carries over to influence all nonjudgment settlements and other resolutions). Transfer works to neutralize any lopsided cost advantage, and thereby to equalize the effectiveness of the two sides'litigation expenditures, so the outcome should also be more accurate in the transferee court. Note that transfer does not shift the choice of forum from plaintiff to defendant, but instead from plaintiff to judge Moreover, the judge decides to transfer only in rather extreme cases of forum-shopping, normally respecting the presumption in favor of the plaintiffs selected forum. In short, the transferee forum should generally be a better forum affording a better outcome Therefore, the transfer study shows that forum matters, in terms of both outcome and justice. Accordingly, plaintiffs frequently choose the initial forum to obtain an advantage--if only to sue at home,as they os. So some plaintiffs still are managing to forum-shop their way to unjust victories they often do Transfer offsets the advantage, but transfer occurs in only 1% to 2% of federal civil cases a role consequently remains for a robust federal law of territorial authority to adjudicate, one that ensures the plaintiff is choosing initially from a limited list of fair forums In summary, study of removal and transfer suggests a consistent forum effect, whereby the plaintiffs'loss of forum advantage by removal or transfer reduces their chance of winning by about one-fifth. I do not maintain that this insight from empirical research is surprising, because in the main it confirms what most lawyers already knew. The name of the game indeed is forum-shopping, and so all those lawyers out there are in fact not wasting their clients money on forum fight Choice of forum can mean joyous victory or depressing defeat. A wrong selection and C. Removal, supra note 24, at 603 n 67(showing reduction to 38% for diversity cases alone) 29This empirical result is working its way into further research. For example, an article of the doctrinal variety, n which the author attempted to rationalize the prevailing forum-selection doc trines that permit all this forum-shopping builds on the established premise of a sizable forum effect. Antony L. Ryan, Principles of Forum Selection, 103W.VA L REv. 167, 168, 200(2000). Another researcher undertook the first large-scale empirical analysis of patent enforcement in the federal district courts. Kimberly A. Moore, Forum Shopping in Patent Cases: Does Geographic Choice affect Innovation?, 79N. C L REv. 889, 901 n50, 920 n 99(2001). She concluded that a wide choice of forum exists in patent outcome of patent litigation. Forum shopping is alive and well in patent litigation. "Id at 93/ y a critical role in the litigation, that the parties actively work to select the forum, and that the forum continues to play
7 28Cf. Removal, supra note 24, at 603 n.67 (showing reduction to 38% for diversity cases alone). 29This empirical result is working its way into further research. For example, an article of the doctrinal variety, in which the author attempted to rationalize the prevailing forum-selection doctrines that permit all this forum-shopping, builds on the established premise of a sizable forum effect. Antony L. Ryan, Principles of Forum Selection, 103 W. VA. L.REV. 167, 168, 200 (2000). Another researcher undertook the first large-scale empirical analysis of patent enforcement in the federal district courts. Kimberly A. Moore, Forum Shopping in Patent Cases: Does Geographic Choice Affect Innovation?, 79 N.C.L. REV. 889, 901 n.50, 920 n.99 (2001). She concluded that a wide choice of forum exists in patent litigation, that the parties actively work to select the forum, and that the forum continues to play a critical role in the outcome of patent litigation. “Forum shopping is alive and well in patent litigation.” Id. at 937. because we were able more easily to discount explanations based on differences in the strength of nontransferred and transferred cases. That is, the win rate declines largely because the plaintiff has lost a forum advantage. A plaintiff’s odds would drop after transfer of venue from 50% to 40%, after controlling for all available variables.28 Neither the court system nor the applicable law changes after transfer, so we must be seeing only the effects of a strongly shifted balance of inconveniences and a shift of local biases. Still, such a big effect of transfer in reducing the win rate is not surprising. Transferred cases comprise those cases where the forum advantage would be the greatest. After all, the plaintiff tried to forum-shop, the defendant chose to fight back, and the court in granting transfer decided that the forum really mattered. The transferred plaintiffs all lost a big forum advantage and thus litigated less successfully in the unfavorable forum, so the win rate dropped. A normative lesson emerges here too. Given the nature of transfer, the transferee forum is usually a more just forum giving a more accurate outcome. Under the governing statute’s terms, transfer undoes the plaintiff’s forum advantage only when the “interest of justice” so counsels, and therefore undoes the plaintiff’s opportunity to gain an unjust victory in litigation (or to achieve an unjust settlement—our research showed the effect of transfer seen in judgments carries over to influence all nonjudgment settlements and other resolutions). Transfer works to neutralize any lopsided cost advantage, and thereby to equalize the effectiveness of the two sides’ litigation expenditures, so the outcome should also be more accurate in the transferee court. Note that transfer does not shift the choice of forum from plaintiff to defendant, but instead from plaintiff to judge. Moreover, the judge decides to transfer only in rather extreme cases of forum-shopping, normally respecting the presumption in favor of the plaintiff’s selected forum. In short, the transferee forum should generally be a better forum affording a better outcome. Therefore, the transfer study shows that forum matters, in terms of both outcome and justice. Accordingly, plaintiffs frequently choose the initial forum to obtain an advantage—if only to sue at home, as they often do. Transfer offsets the advantage, but transfer occurs in only 1% to 2% of federal civil cases. So some plaintiffs still are managing to forum-shop their way to unjust victories. A role consequently remains for a robust federal law of territorial authority to adjudicate, one that ensures the plaintiff is choosing initially from a limited list of fair forums. In summary, study of removal and transfer suggests a consistent forum effect, whereby the plaintiffs’ loss of forum advantage by removal or transfer reduces their chance of winning by about one-fifth.29 I do not maintain that this insight from empirical research is surprising, because in the main it confirms what most lawyers already knew. The name of the game indeed is forum-shopping, and so all those lawyers out there are in fact not wasting their clients’ money on forum fights: Choice of forumcan mean joyous victory or depressing defeat. A wrong selection and
s enemy territory: a jurisdiction where the prevailing law, available remedies, courtroom procedures, and jurorattitudes [las well as quality and character of judges and also geographic convenience and cost considerations] are inimical to your client. A correct choice and, as Don Corleone once said, "They will fear you. 5 Likewise, for this and many other reasons, teachers cannot be faulted for giving the subject undue attention Some academics, however, have argued that the forum should not matter so much to practitioners. The notion that either party will be unable to defend or pursue in a distant forum in the vast majority of interstate cases. . ignores the realities of civil litigation. At the least, say other commentators, the courts themselves should worry less about territorial authority to adjudicate Because no fundamental liberty interest is at stake, society would be better off if it just abandoned the restraints of law on forum and let courts discretionarily decide whether to entertain a nonlocal case;all that law on territorial authority to adjudicate, then, "is really a solution in search of a problem. I disagree. The choice of forum has a tremendous impact on the chance of winning and hence on the value of settlement, and at least the practitioners know so. Basic faimess is at stake, and accordingly lawmakers should worry about the law of territorial authority to adjudicate Here comes the significant observation. All of the foregoing discussion on the importance of forum concerned litigation within the United States Consider now international litigation. The choice of forum becomes much more important. Shifting inconveniences and changing biases from one forum to a foreign forum become staggeringly effective. Moreover, the differences in substantive and procedural law--as well as the matters ofremedies and expenses-dwarf the small variations within American law. What is the forum's law on antitrust, will there be a jury, how big will the damages be fixed and will they be trebled, and can the plaintiffs lawyer proceed on a contingent fee and will the loser have to pay the winner's expenses? Because of all these differences, international litigators and the various national legal systems really need to worry about the law of territorial authority to adjudicate--the law on where a plaintiff can demand a defendants"hanging B Jurisdictional harmonization Remains desirable When thinking ofjurisdiction, one tends to think mainly in terms of the difference in law that turns on selected forum but as the removal and transfer studies show cultural and institutional differences have a huge impact too. Consider three aspects of each of the cultural, institutional, and legal sets of differences Gita F. Rothschild, Forum Shopping, LITIG Spring 1998, at 40, 40 PAtrick J. Borchers, The Death of the Cons titutional Law of Personal Jurisdiction: From Pennoyer to Burnham and Back A gain, 24 U.C. DAVIS L REv. 19, 95(1990). 32Wendy Collins Per due, Personal Jurisdiction and the Beetle in the Box, 32 B C L REV. 529, 530(1991) See Kimberly A. Moore, Xenophobia in American Courts, 97 Nw. U.L. REv. 1497, 1499-501 (2003) (stressing ethnocentric biases); Utpal Bhattacharya, Neal Galpin Bruce Haslem, The Home Court Advantage in Intermational Corporate Litigation(Feb 2004)(manuscript on file with author ); cf Xenophilia, supra note 27(showing a strong case-selection effect in data from 1986-1994)
8 30Gita F. Rothschild, Forum Shopping, LITIG., Spring 1998, at 40, 40. 31Patrick J. Borchers, The Death of the Constitutional Law of Personal Jurisdiction: From Pennoyer to Burnham and Back Again, 24 U.C. DAVIS L. REV. 19, 95 (1990). 32Wendy Collins Perdue, Personal Jurisdiction and the Beetle in the Box, 32 B.C. L. REV. 529, 530 (1991). 33See Kimberly A. Moore, Xenophobia in American Courts, 97 NW. U. L. REV. 1497, 1499-501 (2003) (stressing ethnocentric biases); Utpal Bhattacharya, Neal Galpin & Bruce Haslem, The Home Court Advantage in International Corporate Litigation (Feb. 2004) (manuscript on file with author); cf. Xenophilia, supra note 27 (showing a strong case-selection effect in data from 1986-1994). it’s enemy territory: a jurisdiction where the prevailing law, available remedies, courtroom procedures, and juror attitudes [as well as quality and character of judges and also geographic convenience and cost considerations] are inimical to your client. A correct choice and, as Don Corleone once said, “They will fear you.”30 Likewise, for this and many other reasons, teachers cannot be faulted for giving the subject undue attention. Some academics, however, have argued that the forum should not matter so much to practitioners. “The notion that either party will be unable to defend or pursue in a distant forum in the vast majority of interstate cases . . . ignores the realities of civil litigation.”31 At the least, say other commentators, the courtsthemselves should worry less about territorial authority to adjudicate. Because no fundamental liberty interest is at stake, society would be better off if it just abandoned the restraints of law on forum and let courts discretionarily decide whether to entertain a nonlocal case; all that law on territorial authority to adjudicate, then, “is really a solution in search of a problem.”32 I disagree. The choice of forum has a tremendous impact on the chance of winning and hence on the value of settlement, and at least the practitioners know so. Basic fairness is at stake, and accordingly lawmakers should worry about the law of territorial authority to adjudicate. Here comes the significant observation. All of the foregoing discussion on the importance of forum concerned litigation within the United States. Consider now international litigation. The choice of forum becomes much more important. Shifting inconveniences and changing biases from one forum to a foreign forum become staggeringly effective.33 Moreover, the differences in substantive and procedural law—as well as the matters of remedies and expenses—dwarf the small variations within American law. What is the forum’s law on antitrust, will there be a jury, how big will the damages be fixed and will they be trebled, and can the plaintiff’s lawyer proceed on a contingent fee and will the loser have to pay the winner’s expenses? Because of all these differences, international litigators and the various national legal systems really need to worry about the law of territorial authority to adjudicate—the law on where a plaintiff can demand a defendant’s “hanging”! B. Jurisdictional Harmonization Remains Desirable When thinking of jurisdiction, one tends to think mainly in terms of the difference in law that turns on selected forum, but as the removal and transfer studies show, cultural and institutional differences have a huge impact too. Consider three aspects of each of the cultural, institutional, and legal sets of differences:
the inconveniences of distant litigation will never drop to zero local biases will always remain at play the particular social context, including language and culture, will inevitably affect the realm of social ordering that is given over to litigation differs widely from country to country; courts show great differences in nature and qualit lawyers'roles, and the expense and funding of litigation, likewise differ greatly procedural law varies in surprisingly deep and contentious ways substantive law of course. still exhibits wide variation: and choice-of-law doctrines, as applied, fail to eliminate differences in governing law What this list means is that a lot rides on where a case is heard. It is critical to ensure that litigation takes place in an appropriate forum, that is, to divvy up the cases in a way so that all can accept the forums putting its parochial spin on the dispute The reformist goal of jurisdictional regulation and harmonization fits with the traditional ideal of private international law Its aim is not the uniformity of law in general; on the contrary, this system is the modus vivendi by which purely territorial systems with all their peculiarities and national haracteristics can exist side by side. The ideal, to which it is working is that no two municipal courts shall be forced, by the systems of law which they apply, to give different judgments on the same state of facts. To achieve such an ideal it is not necessary that the way, but merely that their systems of private International Law shall be the same er in any purely territorial systems of law of different countries shall approximate to each othe Private International Law, properly conceived, never directly creates legal rights or liabilities: that is the function of the purely territorial branches of law. Hence, it is not like the latter, a creation of the national consciousness which in its development must be free to follow the national genius. It can, therefore, much more easily be moulded in sympathy with external thought and influence. Now, as we all know, it turns out that reaching agreement on nonjurisdictional aspects of private international law is not all that easy: Universal conventions regulating choice of law have had only limited impact in reducing the potential for forum shopping; "decisional harmony, which traditionally private international law theory, especially in Continental Europe, thought would end the practice y ensuring uniformity in the applicable substantive rules, has proved to be a mirage If all forums actually applied the same choice-of-law rules, the advantage enjoyed by the party that selects the forum would be reduced, though by no means entirely eliminated. In all events, as a new century dawns, achieving decisional harmony through universal international conventions regulating choice of law seems even more elusive than when the twentieth This roadblock explains the recent emphasis on jurisdictional regulation and harmonization. My Beckett, supra note 9, at 95-96 35von Mehren, supra note 23, at 312(footnote omitted)
9 34Beckett, supra note 9, at 95-96. 35von Mehren, supra note 23, at 312 (footnote omitted). ! the inconveniences of distant litigation will never drop to zero; ! local biases will always remain at play; ! the particular social context, including language and culture, will inevitably affect litigation; the realm of social ordering that is given over to litigation differs widely from country to country; courts show great differences in nature and quality; lawyers’ roles, and the expense and funding of litigation, likewise differ greatly; # procedural law varies in surprisingly deep and contentious ways; # substantive law, of course, still exhibits wide variation; and # choice-of-law doctrines, as applied, fail to eliminate differences in governing law. What this list means is that a lot rides on where a case is heard. It is critical to ensure that litigation takes place in an appropriate forum, that is, to divvy up the cases in a way so that all can accept the forum’s putting its parochial spin on the dispute. The reformist goal of jurisdictional regulation and harmonization fits with the traditional ideal of private international law: Its aim is not the uniformity of law in general; on the contrary, this system is the modus vivendi by which purely territorial systems with all their peculiarities and national characteristics can exist side by side. The ideal, to which it is working is that no two municipal courts shall be forced, by the systems of law which they apply, to give different judgments on the same state of facts. To achieve such an ideal it is not necessary that the purely territorial systems of law of different countries shall approximate to each other in any way, but merely that their systems of Private International Law shall be the same. . . . Private International Law, properly conceived, never directly creates legal rights or liabilities: that is the function of the purely territorial branches of law. Hence, it is not like the latter, a creation of the national consciousness which in its development must be free to follow the national genius. It can, therefore, much more easily be moulded in sympathy with external thought and influence.34 Now, as we all know, it turns out that reaching agreement on nonjurisdictional aspects of private international law is not all that easy: Universal conventions regulating choice of law have had only limited impact in reducing the potential for forum shopping; “decisional harmony,” which traditionally private international law theory, especially in Continental Europe, thought would end the practice by ensuring uniformity in the applicable substantive rules, has proved to be a mirage. If all forums actually applied the same choice-of-law rules, the advantage enjoyed by the party that selects the forum would be reduced, though by no means entirely eliminated. In all events, as a new century dawns, achieving decisional harmony through universal international conventions regulating choice of law seems even more elusive than when the twentieth century began.35 This roadblock explains the recent emphasis on jurisdictional regulation and harmonization. My