Sunday, October 11, 2009
Protecting defendants from being forced to litigate in unfair (i.e., unduly burdensome or inconvenient) forums has long been a limiting principle in the exercise of federal judicial power. Rules governing federal service of process and venue play a critical role in providing this protection, as they are the initial means by which plaintiffs select the place of trial. Surprisingly, the courts and the academy have expended comparatively little analytical energy to analyze how well these rules protect defendants from litigating in unfair locations. Utilizing first principles of rule precision and information analysis not previously applied in this context, this Article asserts that the rules governing federal service of process and venue largely fail in this task. By focusing on the connections between the defendant and the state in which the federal district court sits, venue and service of process rules call for limited information that ultimately provides a poor proxy for federal forum fairness. The crudeness of this proxy could more easily be excused if it provided a substantial benefit in the form of administrative simplicity. Unfortunately, the current regime is nothing if not baroque, consisting of a maze of rules, tests, and standards that elicit information which is, ultimately, a highly imprecise approximation of a defendant’s ability to litigate in a particular location. Though perfection is impossible, we can certainly do better. Accordingly, courts and scholars should end their attempts to refine the current tests in the hopes of better scrutinizing suboptimal information. Instead, this Article proposes both a reevaluation of the information used to determine forum fairness, and a reassessment of whether courts or litigants are in the best position to optimally use this information.