Forum crowding

• Published in: California law review Vol. 112; no. 2; pp. 327 - 402
• Main Authors: Tejas N Narechania, Tian Kisch, Delia Scoville
• Format: Journal Article
• Language: English
• Published: Berkeley CA United States of America California Law Review Inc 01.06.2024
• Subjects: Appellate courts; Judicial power; Patent suits; UNITED STATES
• DOI: 10.15779/Z38J38KJ8G
• ISSN: 0008-1221

Jurists and scholars have long debated (and often decried) the practice of forum shopping. Critics note, for example, that forum shopping both yields procedural gamesmanship and undermines the courts' legitimacy, while supporters contend that competition for cases increases access to the courts and improves litigants' experiences. Such debates have overlooked the effects of forum shopping on an important constituency: litigants who have little choice over forum. When forum shopping causes a sudden influx of cases-when, that is, it crowds a forum-what happens to other cases that have nowhere else to go? Are busy judges-made busy by forum shopping-more prone to error? In this Article, we conduct a novel analysis of the effects of such forum crowding. In particular, we draw on ongoing pathologies in patent litigation, which has been subject to extreme forum shopping for over a decade, to empirically examine the effects of these practices on other cases, including criminal and civil rights cases, which are subject to more stringent forum rules. We find that, in some crowded courts, these cases may get short shrift. And so we conclude by offering procedural reforms aimed at protecting these cases from being crowded out.