Monday, January 21, 2019

Bechtold, Frankenreiter & Klerman on Forum Selling Abroad

Stefan Bechtold, Jens Frankenreiter and Daniel Klerman have posted a paper on ssrn titled Forum Selling Abroad, 93 Southern California Law Review __ (forthcoming 2019).  Here is a link to the paper, and here is the abstract:
Judges decide cases. Do they also try to influence which cases they decide? Clearly plaintiffs “shop” for the most attractive forum, but do judges try to attract cases by “selling” their courts? Some American judges actively try to enlarge their influence by making their courts attractive to plaintiffs, a phenomenon known as “forum selling.” This article shows that forum selling occurs outside the U.S. as well, focusing on Germany, a country that is often held up as the paragon of the civil law approach to adjudication. As in the U.S., German courts attract cases primarily through the pro-plaintiff manipulation of procedure, including the routine issuance of ex parte injunctions in press cases and refusal to stay patent infringement proceedings when the patent’s validity is challenged in another forum. A critical difference between forum selling in Germany and the U.S. is that court administrators are more actively involved in Germany. As state officials, German court administrators have the incentive to consider the effect of caseloads on government revenue and the local economy, and they use their power to allocate judges to particular kinds of cases in order to make their courts attractive. They also use their power over promotion, case allocation, and resources to reward judges who succeed in attracting cases. Based on an extensive set of interviews with attorneys, judges and court officials, this article describes evidence of forum selling in German patent, press, and antitrust law. It also analyzes how German courts compete internationally with courts from other countries.

This is a very interesting paper.  The authors conclude that the prevalence of patent litigation filed in Düsseldorf, Mannheim, and Munich. is attributable not only to the quality and speed of decisions, but also to such matters as the courts' reluctance to issue stays of judgments pending invalidity proceedings (coupled with the perceived inadequacy of damages for wrongful enforcement in the event the patent is subsequently invalidated), and their reluctance to appoint expert witnesses (which, when it occurs, slows things down considerably).

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