Venue Analytics and the Choice of Legal Forum

Research Question

How does broad plaintiff choice of forum create incentives for judges and courts to compete for cases by skewing procedure and outcomes in favor of plaintiffs, and what are the systemic consequences of this “forum selling” for patent, mass tort, bankruptcy, domain-name, and common-law adjudication?

Key Takeaways

Broad forum choice lets a few strategically minded judges meaningfully tilt outcomes by shaping procedure around plaintiff preferences; knowing which courts are effectively “selling” a favorable forum is critical to deciding where to file, when to remove, and how hard to push for transfer or stay; many of the most consequential pro-plaintiff moves in hot forums occur in low-visibility procedural decisions (summary judgment, joinder, consolidation, discovery, stays) that rarely get reversed, so they must be anticipated, not litigated on appeal; in patent, bankruptcy, and mass-tort contexts, forum selling can materially alter settlement values and litigation risk, making empirically grounded intelligence about particular districts and judges a strategic asset; proposed reforms that constrict venue and randomize assignment would reduce some excesses, but heterogeneous judicial incentives will remain, so litigators need data, not folklore, about how specific judges actually behave.

Dataset Description

The article is primarily doctrinal and case-study based, drawing on descriptive and empirical data from: (1) U.S. federal patent cases (especially 2000–2015) across all districts, with detailed breakdowns for the Eastern District of Texas and District of Delaware (case volumes, trial rates, summary judgment and transfer rates, time-to-trial, stays pending PTO review, and declaratory judgment filings) using Lex Machina and Administrative Office statistics; (2) large Chapter 11 bankruptcies from the 1990s–2010s (Delaware, S.D.N.Y., and other districts), relying on prior empirical work (e.g., LoPucki, Rasmussen, Ayotte & Skeel); (3) state mass-tort and class-action filings and practices in “magnet jurisdictions” such as Madison County (IL), Jefferson County (MS), and Philadelphia; (4) ICANN UDRP domain-name arbitration decision data across providers (WIPO, NAF, eResolution); and (5) historical records on English common-law courts (King’s Bench, Common Pleas, Exchequer) from 1600–1799. No single unified dataset is constructed; instead, the authors synthesize multiple empirical and historical sources to support a general account of forum selling.

Key Findings

The article shows that when plaintiffs (or other case placers) can choose among many forums, some courts and judges respond competitively by making their procedures and practices more plaintiff‑friendly to attract filings, often in ways insulated from appellate review. The Eastern District of Texas is the central modern example: it attracted a huge share of national patent litigation by sharply limiting summary judgment, enabling extreme judge-shopping via division-based assignment, interpreting joinder and consolidation leniently, managing multi-defendant cases to constrain defense presentations, resisting transfers and stays pending PTO review, and maintaining a relatively fast docket and expansive discovery regime. Similar dynamics appear in state mass‑tort “magnet jurisdictions,” large corporate bankruptcies (especially in Delaware), ICANN domain-name arbitrations, and early modern English common-law courts. Across these domains, competition for cases tends to produce a systemic tilt toward the party that chooses the forum, often plaintiffs or debtor‑management, with real effects on settlement leverage, expected outcomes, and the evolution of substantive and procedural law. The authors argue that these patterns help justify tighter personal-jurisdiction and venue limits and show that judicial behavior is responsive to competitive incentives rather than to ideology or case facts.

Summary

The article develops a supply‑side account of forum shopping: when plaintiffs can file almost anywhere, some courts do not just passively receive cases; they actively compete for them. Klerman and Reilly label this dynamic “forum selling” and argue that it is a general, recurring feature of adjudication under broad jurisdictional rules. Judges and courts that want more cases, whether for intellectual interest, prestige, local economic benefits, or career reasons, adjust doctrine and, especially, procedure to make their forum more attractive to the party who decides where to sue.

The centerpiece case study is patent litigation in the Eastern District of Texas. Once an unremarkable district, it became the dominant venue for U.S. patent suits in the 2000s and early 2010s. The authors show this was not simply about fast dockets or pro‑patent juries. Eastern District judges made a series of interlocking choices that increased patentees’ leverage: granting summary judgment at far below national rates; requiring leave even to file dispositive motions; using division-based case assignment that enabled effective judge-shopping; interpreting joinder rules expansively and then using consolidation to preserve multi-defendant advantages after the AIA; resisting transfer and stays for PTO review; and insisting on broad, early discovery. These typically low-visibility, abuse‑of‑discretion decisions cumulatively created a plaintiff‑friendly environment that shifted settlement baselines nationwide.

The article then extends the analysis to other settings. In state mass‑tort and class‑action “magnet jurisdictions,” elected judges adopted practices favoring plaintiffs, including permissive joinder of out‑of‑state claimants, aggressive consolidation, and reluctance to grant dispositive motions. In large corporate bankruptcies, Delaware and S.D.N.Y. drew a dominant share of big Chapter 11s by being fast and accommodating to debtor management and their professionals. ICANN domain‑name arbitration, a private regime, exhibits dynamics analogous to those in which providers appeared to signal complainant‑friendly outcomes and channeled cases to pro‑trademark arbitrators. Even early modern English common-law courts engaged in similar competition, with the King’s Bench innovating pro‑plaintiff doctrines to attract business from rival courts.

Normatively, the authors argue that forum shopping creates a systemic tilt toward the party that chooses the forum, often in ways that are shielded from appellate correction, raising concerns about fairness, uniformity, and democratic accountability. They contend that these dynamics support reforms that constrain venue options, narrow expansive notions of general jurisdiction, and reduce opportunities for strategic judge-shopping or provider-shopping. At the same time, they emphasize that judicial behavior is shaped by institutional incentives as much as by ideology, suggesting that understanding and, where necessary, redesigning those incentives is crucial for both scholars and litigators.

How the Study Advances Empirical Understanding of Legal Outcomes

The study finds that legal outcomes across multiple domains exhibit structured, repeatable patterns arising from institutional incentives created by broad forum choice, rather than from case-specific merits alone. The analysis shows that when courts and judges operate within competitive procedural environments, recurring adjustments to venue rules, case assignment, and discretionary procedures systematically shape outcomes over time, underscoring that adjudication reflects durable structural forces rather than randomness. By integrating doctrinal analysis with comparative empirical evidence across jurisdictions and historical periods, the study employs a case-based methodological approach that aligns with Pre/Dicta’s emphasis on empirically grounded analysis of legal outcomes and decision contexts as a necessary foundation for high-level litigation practice.