Ghei, Nita --- "Forum Shopping and the Evolution of Rules of Choice of Law" [2011] ELECD 1078; in Parisi, Francesco (ed), "Production of Legal Rules" (Edward Elgar Publishing, 2011)

Book Title: Production of Legal Rules

Editor(s): Parisi, Francesco

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848440326

Section: Chapter 20

Section Title: Forum Shopping and the Evolution of Rules of Choice of Law

Author(s): Ghei, Nita

Number of pages: 10

Extract:

20 Forum shopping and the evolution of rules
of choice of law
Nita Ghei



1. Introduction
In a perfect world, the outcome of litigation would be entirely independent of
the choice of forum, and the outcome would be the same, no matter where the
suits were brought. In the world as it exists, with a variety of legal regimes,
jurisdictions that overlap, and interests that might conflict, the choice of forum
can sometimes be a matter of life and death (Ghei and Parisi 2004).1 The fact
that the choice of forum can be outcome-determinative is intuitively troubling,
particularly in that this offers an opportunity for forum shopping, with all the
accompanying possibilities of efficiencies. However, this can also offer an
opportunity for forum selection, which might enhance efficiency, as will be
discussed later.
A variety of theoretical approaches have been suggested to correct this
perceived problem, and, in reality, a complex jurisprudence exists to deal
with issues when more than one sovereign's law might possibly apply to the
litigation at hand. While in many situations this might be a matter of two or
more sovereign nations, the United States is peculiar in its federal structure, in
that the various states retain considerable sovereignty. Consequently, conflicts
law has emerged from the common law, and has evolved over time, to correct
some of the more significant problems of moral hazard (Shavell 1979), with the
additional bound imposed by constitutional restrictions on personal jurisdiction
(McDougall, Felix and Whitten 2004).

2. ...