"Forum Selling as a Threat to the Rule of Law" by Brian Iverson

Brian Iverson, Mercer University School of LawFollow

Keywords

Civil Procedure, Courts, Judges, Law and Politics, Law and Society, Legal Ethics and Professional Responsibility, Litigation, Rule of Law

Abstract

Forum shopping has long been a feature of federal litigation, but recent years have brought a more troubling dynamic in which federal courts compete for cases by “forum selling.” Judges engage in forum selling by adopting plaintiff-friendly procedures, reliably issuing plaintiff-leaning decisions, and publicly soliciting certain types of cases. These practices transform localized procedural discretion into a structural risk for the federal judicial system.

This Article makes two novel contributions to the federal forum-selling literature. First, it expands the discussion beyond bankruptcy and patent practice to examine ideological influences. Drawing on empirical scholarship and illustrative judicial profiles, the Article identifies a spectrum ranging from ideology-influenced judging to ideology-based forum selling. It applies this framework to several federal district judges whose decisions in ideologically divisive cases exhibit consistent liberal or conservative patterns, then supplements those substantive outcomes with relevant case assignment protocols, procedural orders, and extrajudicial activities to place each judge on the forum-selling spectrum. Second, the Article analyzes forum selling through a rule-of-law lens, focusing on core principles of equal application of the law, prior knowledge of the law, predictability, avoidance of arbitrary decision-making, and judicial independence.

The Article concludes that forum selling presents systemic and localized threats to the rule of law that undermine fairness to the parties and erode institutional legitimacy. After identifying these threats, the Article proposes targeted reforms through mandatory random case assignment, circuit-level oversight of local rules and standing orders, and more robust enforcement of existing judicial ethics standards. These practical, concrete proposals would meaningfully constrain a judge’s ability to solicit cases or to implement plaintiff-friendly procedures while avoiding the overcorrection inherent in proposals to restrict venue or personal jurisdiction.