CORNELL LAW SCHOOL LEGAL STUDIES RESEARCH PAPER SERIES The role of private international law in the united states Beating the Not-Quite-Dead Horse of jurisdiction Kevin m. clermont Cornell law School Myron taylor hall Ithaca.NY14853-4901 Cornell Law School research paper No. 04-023 This paper can be downloaded without charge from The Social Science Research Network Electronic Paper Collection srn. com/abstract
CORNELL LAW SCHOOL LEGAL STUDIES RESEARCH PAPER SERIES The Role of Private International Law in the United States: Beating the Not-Quite-Dead Horse of Jurisdiction Kevin M. Clermont Cornell Law School Myron Taylor Hall Ithaca, NY 14853-4901 Cornell Law School research paper No. 04-023 This paper can be downloaded without charge from: The Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=588321
09/04/04 The role of private international law in the united states Beating the not-Quite-Dead Horse of jurisdiction Kevin m clermont Territorial authority to adjudicate is the preeminent component of private international law. Empiricalresearch proves that forum really affects outcome, probably by multiple influences. This practical effect makes international harmonization of jurisdictional law highly desirable. Although harmonization of nonjurisdictional law remains quite unlikely, jurisdictional harmonization is increasingly feasible because, among other reasons, U.S. jurisdictional law in fact exhibits no essential differences from European law. None of the usual assertions holds up as an unbridgeable difference, including that()the peculiar U. S jurisdictional law flows inevitably from a different theory of governmental authority, one that rests on power notions; (2)U.. law differs because its legal institutions have managed to constitutionalize jurisdiction; (3)it is the same old story of common-law courts playing too active a part in the development of the law in the United States;(4)the United States has resolved the fundamental jurisprudential tension between certainty and precision in a way that maximizes the role of fact-specific inquiry; and (5)those activist courts are ironically too willing to decline the jurisdiction bestowed on them by the legislature. Indeed, with minor legislative reforms to give the U.s. law somewhat greater certainty and restraint, the distance to Europe would shrink even further risdiction could thus be the fulcrum for rearranging the international judicial order. Despite the difficulties recently encountered in the Hague negotiations, the international community should immediately begin to take the series f small steps necessary to prepare the way for achieving the long- run goal of a multilateral convention that harmonizes jurisdictional law Introduction I Preeminence of jurisdiction in u.s. private international law Il. Importance of Jurisdiction in Practice and Theory 5 A. Forum Really Affects Outcome B. Jurisdictional harmonization remains desirable C Nonjurisdictional H harmonization Remains Unlikely III. Transatlantic Differences on jurisdictio Summarizing U.S. Law 1. Power 2. Unreasonableness and self-Restraint B. Searching for Essential Differences 1. Origin in Power 2. Effect of Constitutionalization 21 3. Primacy of judi 4. Absence of rules 5. Role of dise 24 C. Recasting U.S. Law 1. Constitutional Limit Flanagan Professor of Law, Cornell University
* Flanagan Professor of Law, Cornell University. 09/04/04 The Role of Private International Law in the United States: Beating the Not-Quite-Dead Horse of Jurisdiction Kevin M. Clermont* Territorial authority to adjudicate is the preeminent component of private international law. Empirical research proves that forum really affects outcome, probably by multiple influences. This practical effect makes international harmonization of jurisdictional law highly desirable. Although harmonization of nonjurisdictional law remains quite unlikely, jurisdictional harmonization is increasingly feasible because, among other reasons, U.S. jurisdictional law in fact exhibits no essential differences from Europe an law. None of the usual assertions holds up as an unbridgeable difference, including that (1) the peculiar U.S. jurisdictional law flows inevitably from a different theory of governmental authority, one that rests on power notions; (2) U.S. law differs because its legal institutions have managed to constitutionalize jurisdic tion; (3) it is the same old story of common-law courts playing too active a part in the development of the law in the United States; (4) the United States has resolved the fundamental jurisprudential tension between certainty and precision in a way that maximizes the role of fact-specific inquiry; and (5) those activist courts are ironically too willing to decline the jurisdiction bestowed on them by the legislature. Indeed, with minor legislative reforms to give the U.S. law somewhat greater certainty and restraint, the distance to Europe would shrink even further. Jurisdiction could thus be the fulcrum for rearranging the international judicial order. Despite the difficulties recently encountered in the Hague negotiations, the international community should immediately begin to take the series of small steps necessary to prepare the way for achieving the long-run goal of a multilateral convention that harmonizes jurisdictional law. Introduction ................. ................. ................. ................. ............ 2 I. Preeminence of Jurisdiction in U.S. Private International Law ................. ................. ...... 3 II. Importance of Jurisdiction in Practice and Theory ................. ................. .............. 5 A. Forum Really Affects Outcome ................. ................. ................. ..... 5 B. Jurisdictional Harmonization Remains Desirable ................. ................. ........ 8 C. Nonjurisdictional Harmonization Remains Unlikely ................. ................. ..... 10 III. Transatlantic Differences on Jurisdiction ................. ................. ................. . . 14 A. Summarizing U.S. Law ................. ................. ................. .......... 14 1. Power ................. ................. ................. ................. 15 2. Unreasonableness and Self-Restraint ................. ................. .......... 17 B. Searching for Essential Differences ................. ................. ................. . 18 1. Origin in Power ................. ................. ................. ......... 19 2. Effect of Constitutionalization ................. ................. ............... 21 3. Primacy of Judiciary ................. ................. ................. ..... 22 4. Absence of Rules ................. ................. ................. ........ 23 5. Role of Discretion ................. ................. ................. ....... 24 C. Recasting U.S. Law ................. ................. ................. ............. 25 1. Constitutional Limit ................. ................. ................. ...... 25 2. Subconstitutional Limits ................. ................. ................. . . 28 Conclusion ................. ................. ................. ................. ............ 30
INTRODUCTION The materials announcing this conference struck fear in my heart, doing so by calling for the cooperative development of private international law and international private law. This sound innocuous enough, even desirable. And i know what they meant, I think. But all I could think of was a course that I took in law school entitled Comparative Conflict ofLaws. We spent literally the first six weeks of the thirteen-week course on the distinction between private international law and international private law, only to conclude that there was no difference Building on that solid intellectual foundation, I can report that the more common of the two terms--private international law-arose first in the United States"(although today it is little used here, having been driven back by the older term"conflict of laws). "Private international law emigrated to France within a decade, and then the term spread fast through the nineteenth-centur mindset. Today we understand that private international law is neither truly international nor exclusively private, but is instead a branch of domestic law treating legal situations with nondomestic elements that pose a conflict of sovereign authority. Its precise scope varies from country to country. In Germany, the subject tends to be narrow, focusing on choice of law. In the United States, it covers choice of law, but also reaches territorial authority to adjudicate and the treatment of foreign judgments. In France, private international law extends even further to matters of nationality and the legal status of foreigners. As I still have my old class notes, and as articles exist with titles like"What Is Private International Law?, I could rehearse the past battles of definition(or could argue the possible superiority of alternative terms). But ultimately: " It is a matter of convenience whether a broad or a narrow definition of private international law is adopted. 0 the ni.The course was taught in the fall of 1970 at Harvard Law School by Professor Rodolfo de Nova, vising from ty of Pavia JOSEPH STORY, COMM ENTARIES ON THE CONFLICT OF LAWS$9(Boston, Hilliard, Gray Co. 1834) See CLAIRE M. GERMAIN, GERMAINS TRANSNA TIONAL LA W RESEARCH$ 1.01.2(1991) "FOELIX TRAITE DU DROIT INTERNATIONAL PRIVE OU DU CONFLIT DES LOIS DE DIFFERENTES NATIONS EN MATIERE DE DROIT PRIVE (Paris, Joubert 1843). SSee Gerhard Kegel, Introduction: Private International Law, 3 INT'L ENCY. COMP. L. 1-1, 1-3(1986) at1-1 7See WIlliamm. richman w L. REY UNDERSTANDING CONFLICT OF LAWSS 1, at 1(3d ed 2002)("Conflicts, like Caesars Gaul, is generally said to be divided into three parts: jurisdiction, choice of law, and judgments. ) DAVID D. SIEGEL, CONFLICTS IN A NUTSHELL 3(2d ed 1994) See BERNARd AUDIT, DRoit INTERNATIONAL PRIVE 1-19(3d ed 2000) lim w.E. Beckett, What Is Private International Law?, 7 BRIT Y.B. INT'L L. 73, 94(1926)(arguing for strictly e subject to jurisdiction and choice of law) kEgel, supra note 5, at 1-2. But see Beckett, supra note 9, at 95(arguing that definition has consequences)
2 1The course was taught in the fall of 1970 at Harvard Law School by Professor Rodolfo de Nova, vising from the University of Pavia. 2 JOSEPH STORY, COMM ENTARIES ON THE CONFLICT OF LAWS § 9 (Boston, Hilliard, Gray & Co. 1834). 3 See CLAIRE M. GER MAIN , GER MAIN ’S TRANSNATION AL LAW RESEARCH § 1.01.2 (1991). 4 FOELIX, TRAITÉ DU DR OIT INTERN ATIONAL PRIVÉ, OU DU CONFLIT DES LOIS DE DIFFÉRENTES NATIONS EN MATIÈRE DE DROIT PRIVÉ (Paris, Joubert 1843). 5 See Gerhard Kegel, Introduction: Private International Law, 3 INT’L ENCY. COMP. L. 1-1, 1-3 (1986). 6 See id. at 1-1. 7 See WILLIAM M. RICHMAN & WILLIAM L. REYNOLDS, UNDERSTANDING CONFLICT OF LAWS § 1, at 1 (3d ed. 2002) (“Conflicts, like Caesar’s Gaul, is generally said to be divided into three parts: jurisdiction, choice of law, and judgments.”); DAVID D. SIEGEL, CONFLICTS IN A NUTSHELL § 3 (2d ed. 1994). 8 See BERNARD AUDIT, DROIT INTERNATIONAL PRIVÉ 1-19 (3d ed. 2000). 9W.E. Beckett, What Is Private International Law?, 7 BRIT. Y.B. INT’L L. 73, 94 (1926) (arguing for strictly limiting the subject to jurisdiction and choice of law). 10Kegel, supra note 5, at 1-2. But see Beckett, supra note 9, at 95 (arguing that definition has consequences). INTRODUCTION The materials announcing this conference struck fear in my heart, doing so by calling for the “cooperative development of private international law and international private law.” This sounds innocuous enough, even desirable. And I know what they meant, I think. But all I could think of was a course that I took in law school entitled Comparative Conflict of Laws.1 We spent literally the first six weeks of the thirteen-week course on the distinction between private international law and international private law, only to conclude that there was no difference! Building on that solid intellectual foundation, I can report that the more common of the two terms—private international law—arose first in the United States2 (although today it is little used here, having been driven back by the older term “conflict of laws”3 ). “Private international law” emigrated to France within a decade,4 and then the term spread fast through the nineteenth-century mindset.5 Today we understand that private international law is neither truly international nor exclusively private, but is instead a branch of domestic law treating legal situations with nondomestic elements that pose a conflict of sovereign authority. Its precise scope varies from country to country. In Germany, the subject tends to be narrow, focusing on choice of law.6 In the United States, it covers choice of law, but also reaches territorial authority to adjudicate and the treatment of foreign judgments.7 In France, private international law extends even further to matters of nationality and the legal status of foreigners.8 As I still have my old class notes, and as articles exist with titles like “What Is Private International Law?,”9 I could rehearse the past battles of definition (or could argue the possible superiority of alternative terms). But ultimately: “It is a matter of convenience whether a broad or a narrow definition of private international law is adopted.”10
In this conference, with its focus on article 65 of the Treaty Establishing the European Community, it seems to me that a convenient definition would include jurisdiction, choice of law, ind judgments but would also extend into international civil procedure far enough to pick up judicial cooperation on matters such as service and evidence I PREEMINENCE OF JURISDICTION IN U.S. PRIVATE INTERNATIONAL LAW Given this broad definition of private international law, and given the federal structure of the United States, it is safe to say that private international law, by whatever name, has huge importance in the United States. That fact explains why jurisdiction above all typically occupies(although usually with an appended study of res judicata )the most substantial part of the major first-year law course on civil procedure. Also, the U.S. situation incidentally helps to explain why the typical upperclass course on conflicts of law, which mostly emphasizes choice of law, ignores international cases in favor of interstate cases. Outside the academy, lawyers in the United States expend significant time, energy, and other resources on the process of forum selection. They know that the "name of the game is II Article 65, effective in 1999, pro vides Measures in the field of judicial co-operation in civil matters having cross-border implications, to be ken in accordance with Article 67 and insofar as necessary for the proper functioning of the internal market, hall include (a) improving and simplifying the system for cross-border service of judicial and extrajudicial documents co-operation in the taking of evidence, the reco gnition and enforcement of decisions in civil and commercial cases, including ecisions in extrajudicial cases; promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction liminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States I ENCYCLOPEDIA OF EUROPEAN UNION LAW 3-0074(Neville March Hunnings gen ed, 2003); see Michael Wilderspin New Possibilities for Cooperation with the European Union-The Transfer of Competence for Judicial Cooperation from Member States to Community Institutions: The Foundations and the Implementation of the Transferof Competence in the Area of Judicial Cooperation in Civil Matters to the Community Institutions, 21 J.L. CoM. 181(2002)(nicely ronicling the communitarization of private international law ) See Stephen B. Burbank, The Reluctant Partner: Making Procedural Law for International Civil Litigation LAW CoNTEMP PROBS., Summer 1994, at 103, 127-35(treating judicial cooperation See generally roBert C CASAD KEvin M. Clermont, REs JUDICATA: A HANDBOOK ON ITS THEORY, DOCTRINE, AND PRACTICE(2001) IAt Cornell Law School, jurisdiction and judgments occupy one-halfof the six-credit course in civil procedur which equals the biggest course in the curriculum See, e. g, RICHMAN REYNOLDS, supra note 7,81: EUGENE F SCOLES, PETER HAY, PATRICK J BORCHERS sYMEon C SYmEoniDEs, CoNFLICT OF LAWs$ 1.3(3d ed 2000)
3 11Article 65, effective in 1999, provides: Measures in the field of judicial co-operation in civil matters having cross-border implications, to be taken in accordance with Article 67 and insofar as necessary for the proper functioning of the internal market, shall include: (a) improving and simplifying: – the system for cross-border service of judicial and extrajudicial documents, – co-operation in the taking of evidence, – the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases; (b) promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction; (c) eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States. 1 ENCYCLOPEDIA OF EUROPEAN UNION LAW 3-0074 (Neville March Hunnings gen. ed., 2003); see Michael Wilderspin, New Possibilities for Cooperation with the European Union—The Transfer of Competence for Judicial Cooperation from Member States to Community Institutions: The Foundations and the Implementation of the Transfer of Competence in the Area of Judicial Cooperation in Civil Matters to the Community Institutions, 21 J.L. & COM. 181 (2002) (nicely chronicling the communitarization of private international law). 12See Stephen B. Burbank, The Reluctant Partner: Making Procedural Law for International Civil Litigation, LAW & CONTEMP. PROBS., Summer 1994, at 103, 127-35 (treating judicial cooperation). 13See generally ROBERT C. CASAD & KEVIN M. CLERMONT, RES JUDICATA: A HANDBOOK ON ITS THEORY, DOCTRINE, AND PRACTICE (2001). 14At Cornell Law School, jurisdiction and judgments occupy one-half of the six-credit course in civil procedure, which equals the biggest course in the curriculum. 15See, e.g., RICHMAN & REYNOLDS, supra note 7, § 1; EUGENE F. SCOLES, PETER HAY, PATRICK J. BORCHERS & SYMEON C. SYMEO NIDES, CONFLICT OF LAWS § 1.3 (3d ed. 2000). In this conference, with its focus on article 65 of the Treaty Establishing the European Community,11 it seems to me that a convenient definition would include jurisdiction, choice of law, and judgments but would also extend into international civil procedure far enough to pick up judicial cooperation on matters such as service and evidence.12 I. PREEMINENCE OF JURISDICTION IN U.S. PRIVATE INTERNATIONAL LAW Given this broad definition of private international law, and given the federal structure of the United States, it is safe to say that private international law, by whatever name, has huge importance in the United States. That fact explains why jurisdiction above all typically occupies (although usually with an appended study of res judicata13) the most substantial part of the major first-year law course on civil procedure.14 Also, the U.S. situation incidentally helps to explain why the typical upperclass course on conflicts of law, which mostly emphasizes choice of law, ignores international cases in favor of interstate cases.15 Outside the academy, lawyers in the United States expend significant time, energy, and other resources on the process of forum selection. They know that the “name of the game is
forum-shopping. Few cases reach trial in the U.S. civil litigation system today, after perhaps some initial skirmishing, most cases settle. Yet all cases entail forum selection, be it selection of local venue, interstate shopping, state/federal selection, or international shopping. First, consider the individual case. The plaintiff s opening moves include shopping for the most favorable forum. Then, the defendants parries and thrusts might include some forum-shopping in return, possibly by a motion for transfer of venue. forum is worth fighting over because outcome often turns on forum as i shall document below When the dust settles. the case does too but on terms that reflect the results of the skirmishing. Thus, the fight over forum can be the critical dispute in the case. Second cumulate these tendencies systemically. Forum selection is very important not only to the litigator, but also to the office lawyer who is drafting contracts with an eye toward possible future litigation Itire treatises devoted to the subje ce in litigation frequently dispute forum. Courts deal with nearly as many transfer-of-venue motions as trials Forum selection is a critical concern of the legal system as a whole Accordingly, the U.s. Supreme Courts decisions exhibit the same emphases: jurisdiction comes first in importance, and then recognition and enforcement ofjudgments follow in an orderly fashion, with choice of law entering the Courts mind only as an afterthought. This pattern prompted Linda Silbermans oft-quoted quip ridiculing the Court 's obsessive concern with jurisdictional limits in contrast to its neglect of critical questions such as limits on choice oflaw: she said that the Courts focus reflects a belief "that an accused is more concerned with where he will be hanged than whether International experience is not very different from our internal experience. The history of procedural treaty-making in pre-Community Europe had shown an emphasis on jurisdiction, judgments, and judicial cooperation, rather than on any general harmonization of choice of law or civil procedure. Moreover, in the recent attempts to forge a multilateral judgments convention at The Hague, the intense disputes between Europe and the United States focused almost entirely on Kevin M. Clermont Theodore Eisenberg, Exorcising the Evil of Forum-Shopping, 80 CORNELL L.REV 1507, 1508(1995)[hereinafter Forum-Shopping]. Compare J Skelley Wright, The Federal Courts and the Nature and Quality of State Law, 13 WAYNE L REv. 317, 333(1967)(deploring that forum-shopping has become"a national legal pastime"), with Friedrich K. Juenger, Forum Shopping, Domestic and International, 63 TUL. L. REv. 553(1989) (stressing benefits of forum-shopping), and Mary Garvey Algero, In Defense of Forum Shopping: A Realistic Look at Selecting a Venue, 78 NEB. L REv. 79(1999) See David w. Robertson Paula K. Speck, Access Courts in Transnational Personal Injury Cases. Forum Non Conveniens and Antisuit Injunctions, 68 TEX L. REy 938(1990)(The battle over where the litigation occurs is typically the hardest fought and most important issue in a transnational case I ROBERT CCASAD, JURISDICTION AND FOR UM SELECTION(2ded. 1999); ANDREW S BELL, FORUM SHOPPING AND VENUE IN TRANSNA TION AL LITIGATION(2003) See Forum-Shopping, supra note 16, at 1509& n3 2 Linda J Silberman, Shaffer v. Heitner: The End of an Era, 53 N.Y. U L. REV. 33, 88(1978) 2ISee SamUEL P. BAUMGARtNER. THE PROPOSED HAGUE CONVENTION ON JURISDICTION AND FoREIGN JUDGMENTS 47-67(2003)
4 16Kevin M. Clermont & Theodore Eisenberg, Exorcising the Evil of Forum-Shopping, 80 COR NELL L. REV. 1507, 1508 (1995) [hereinafter Forum-Shopping]. Compare J. Skelley Wright, The Federal Courts and the Nature and Quality of State Law, 13 WAYNE L. REV. 317, 333 (1967) (deploring that forum-shopping has become “a national legal pastime”), with Friedrich K. Juenger, Forum Shopping, Domestic and International, 63 TUL. L. REV. 553 (1989) (stressing benefits of forum-shopping), and Mary Garvey Algero, In Defense of Forum Shopping: A Realistic Look at Selecting a Venue, 78 NEB. L. REV. 79 (1999). 17See David W. Robertson & Paula K. Speck, Access to State Courts in Transnational Personal Injury Cases: Forum Non Conveniens and Antisuit Injunctions, 68 TEX. L. REV. 937, 938 (1990) (“The battle over where the litigation occurs is typically the hardest fought and most important issue in a transnational case . . . .”). 18ROBERT C. CASAD,JURISDICTION AND FORUM SELECTION (2d ed. 1999); ANDREW S. BELL, FORUM SHOPPING AND VENUE IN TRANSNATION AL LITIGATION (2003). 19See Forum-Shopping, supra note 16, at 1509 & n.3. 20Linda J. Silberman, Shaffer v. Heitner: The End of an Era, 53 N.Y.U. L. REV. 33, 88 (1978). 21See SAM UEL P. BAUMGARTNER, THE PROPOSED HAGUE CONVENTION ON JURISDICTION AND FOREIGN JUDGM ENTS 47-67 (2003). forum-shopping.”16 Few cases reach trial in the U.S. civil litigation system today; after perhaps some initial skirmishing, most cases settle. Yet all cases entail forum selection, be it selection of local venue, interstate shopping, state/federal selection, or international shopping. First, consider the individual case. The plaintiff’s opening moves include shopping for the most favorable forum. Then, the defendant’s parries and thrusts might include some forum-shopping in return, possibly by a motion for transfer of venue. Forum is worth fighting over because outcome often turns on forum, as I shall document below. When the dust settles, the case does too—but on terms that reflect the results of the skirmishing. Thus, the fight over forum can be the critical dispute in the case.17 Second, cumulate these tendencies systemically. Forum selection is very important not only to the litigator, but also to the office lawyer who is drafting contracts with an eye toward possible future litigation. Not surprising, then, there exist entire treatises devoted to the subject.18 Once in litigation, the parties frequently dispute forum. Courts deal with nearly as many transfer-of-venue motions as trials.19 Forum selection is a critical concern of the legal system as a whole. Accordingly, the U.S. Supreme Court’s decisions exhibit the same emphases: jurisdiction comes first in importance, and then recognition and enforcement of judgments follow in an orderly fashion, with choice of law entering the Court’s mind only as an afterthought. This pattern prompted Linda Silberman’s oft-quoted quip ridiculing theCourt’s obsessive concernwith jurisdictional limits, in contrast to its neglect of critical questions such as limits on choice of law: she said that the Court’s focus reflects a belief “that an accused is more concerned with where he will be hanged than whether.”20 International experience is not very different from our internal experience. The history of procedural treaty-making in pre-Community Europe had shown an emphasis on jurisdiction, judgments, and judicial cooperation, rather than on any general harmonization of choice of law or civil procedure.21 Moreover, in the recent attempts to forge a multilateral judgments convention at The Hague, the intense disputes between Europe and the United States focused almost entirely on
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
