The Forum Game
65 Pages Posted: 25 Oct 2005
Abstract
One of the more interesting contradictions in law is the common description of litigation as a game, while simultaneously decrying game playing in the litigation process. Litigation involves strategic choice, as game theory illustrates. One of those strategic choices includes the plaintiff's initial selection of the forum, which the defendant may attempt to counter through transfer strategies of its own. Criticizing and trivializing forum selection through the label of forum shopping misapprehends the forum game by treating forum selection as a parlor trick - as unfair and abusive - rather than as a lawful, authorized strategy. Forum shopping is not a form of cheating by those who refuse to play by the rules. Playing by the rules includes the ability of plaintiff's counsel to select-and the ability of defendant's counsel to attempt to counter-the set of rules by which the litigation game will be played.
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