Vanderbilt Law Review

First Page



A plaintiff from Maine sues an insurance company, incorporated in Maine and having its principal place of business in Maine, on a loss incurred in Maine under a contract negotiated, written, and executed in Maine. The plaintiff files the suit in Alabama to take advantage of its liability law, its statute of limitations, its juries, its rules of evidence, and its posture toward plaintiffs. The plaintiff serves a representative of the insurance company traveling in Alabama en route to an industry convention. For all the reasons the plaintiff seeks a forum in Alabama, the defendant wishes to avoid that forum. The importance of forum and the judicial tools available to ensure that the most appropriate forum adjudicates disputes are the subjects of this Note.

Prior to Burnham v. Superior Court of California,' a defendant could successfully claim that Alabama's assertion of general jurisdiction should be determined under the constitutional fundamental fairness doctrine developed in the International Shoe Co. v. Washington and Rush v. Savchuk' line of cases. The defendant would explain the regulatory nature of jurisdiction. The defendant would ask the trial court to hold that Alabama's assertion of jurisdiction violates the defendant's due process rights because Alabama lacks a regulatory interest in adjudicating the dispute. The defendant would illustrate Maine's regulatory interests in adjudicating the meaning of contracts, setting policies, and protecting parties whose conduct occurred within its borders.

Burnham, with its appeal to tradition and black letter Aristotelian principles, closed this avenue of protection.! It held that a forum's assertion of general jurisdiction based on physical presence unrelated to the cause of action was per se constitutional. Defendants must now seek alternative routes to ensure that the most appropriate forum imposes its regulatory regime on the underlying dispute. In the wake of Burnham, a small handful of scholars predicted that forum non conveniens doctrine and the Federal Transfer Statute, 28 U.S.C. § 1404(a), might become that avenue by allowing trial courts to re- insert fundamental fairness into jurisdiction determinations. This Note illustrates that ? 1404(a) accomplishes this task, although judges and the legal community may not always realize that this is occurring.

Part II explains why forum matters. It examines the phenomenon of forum-shopping and the underlying reasons why plaintiffs (and defendants) favor some fora over others. The Part argues that the selection of a forum embodies more than simply choosing a physical location. The selection signifies the imposition of an entire regulatory regime. This Part illustrates how forum, more than anything else, affects the distribution and adjudication of justice in this country.

Part III explores the evolution of constitutional jurisdictional principles that came to recognize the importance of forum. By focusing on International Shoe and its progeny, the section traces the development of constitutional fundamental fairness safeguards against a forum's assertion of general jurisdiction. It explains that when the Supreme Court applied the fundamental fairness doctrine, it was really concerned with the imposition of a regulatory regime. The Court made ad hoc value judgments concerning the appropriateness of a forum's regulatory regime. Subsequent developments in jurisdictional jurisprudence appeared to incorporate fundamental fairness into general jurisdiction, thereby ensuring that only those forums with regulatory interests will adjudicate particular disputes.

Part IV shows how Burnham v. Superior Court closed this avenue of constitutional protection. It examines how the Supreme Court's decision in Burnham foreclosed further application of the fundamental fairness doctrine developed in the International Shoe line of cases to determinations of the constitutionality of general jurisdiction. This Part addresses the criticism and the black letter basis of the decision.

Part V proposes an alternative to Burnham. It traces the development, purpose, and application of the common law doctrine of forum non conveniens. The Part explores the Supreme Court's decision in Gulf Oil Corp. v. Gilbert, in which the Court borrowed heavily from the fundamental fairness standard of International Shoe. Gulf Oil incorporated the notion of forum as regulatory regime into forum non conveniens determinations.

Part VI begins the discussion of the Federal Transfer Statute, 28 U.S.C. § 1404. It explains the statute's purpose, legislative history, use, and application in the federal judiciary. The Part illustrates how district courts, in their application of § 1404, have developed numerous "factors" that go beyond mere "convenience" to ascertain the appropriateness of transfer.

Part VII looks beyond the rhetoric of convenience and concentrates on the many factors that district courts use in deciding § 1404(a) motions. The Part reveals that some trial judges actually conduct a fundamental fairness analysis to impose the proper regulatory regime. It notes that most scholars have expressed disdain at the plethora of factors and have described the entire § 1404(a) jurisprudence as one marked by chaos and inconsistency. These scholars fail to realize that § 1404(a) is accomplishing what the Supreme Court attempted to frustrate in Burnham: the use of ad hoc value judgments under the auspices of fundamental fairness to select the proper forum for a cause of action.

Finally, Part VIII examines the obstacles that may prevent § 1404(a) from actually carrying out the goals of fundamental fairness. It questions the Supreme Court's decisions in Van Dusen v. Barrack' and Ferens v. John Deere Co. The Part provides alternatives and exceptions to the rules developed by those cases. It also answers those who argue that the lack of appellate review of § 1404(a) motions pres- ents a major problem. This Part explains that while these concerns are understandable, they are rooted in appeals to black letter rules and undervalue the need for trial judge discretion to make determinations on a case-by-case basis. Finally, it will advise against seduction by black letter rhetoric and support the ad hoc, case-by-case approach used presently, though surreptitiously, by trial judges.