Wagner — Volume 62, Issue 5

Since Landes and Posner's influential 1979 paper characterizing adjudication as a market service, dispute resolution has been understood through competitive frameworks. Wagner examines how interjurisdictional competition for cases affects judicial systems and dispute resolution mechanisms. Following the Supreme Court's 1972 decision in M/S Bremen v. Zapata Off-Shore Company endorsing forum selection clauses, courts increasingly compete for high-profile commercial cases. Wagner contrasts interjurisdictional competition—celebrated for promoting procedural efficiency—with forum shopping, which opens doors to strategic choice degrading judicial standards. The article parallels this phenomenon to corporate charter competition and bankruptcy law competition, where Delaware's competitive dominance has shaped American corporate law. Wagner distinguishes between unilateral forum choice (typically by plaintiffs) and bilateral choice (consensual by parties), arguing that bilateral choice stimulates competitive improvement while unilateral choice creates race-to-the-bottom dynamics. The article contends that the same competitive forces lauded for promoting efficiency in corporate law may undermine judicial integrity when applied to dispute resolution.

Topics: Civil Rights · Administrative Law

Keywords: forum selection · interjurisdictional competition · dispute resolution · arbitration · judicial competition · Delaware effect · procedural efficiency