Legal Sidebari
Where a Suit Can Proceed: Court Selection
and Forum Shopping
November 8, 2022
The past several years have seen court cases challenging high-profile government actions including
environmental regulations, immigration policies, election administration, economic measures, and
government responses to the COVID-19 pandemic. Plaintiffs in cases such as these often have some
flexibility in selecting the court where their suits will proceed. They sometimes choose where to file suit
based on their perception of how particular legal rules in a jurisdiction might apply or how likely the
judges or juries in a given court are to rule favorably on their claims—a practice known as “forum
shopping.” In some cases, they may even try to bring their cases before a specific judge—a type of forum
shopping sometimes called “judge shopping.” While certain long-standing legal doctrines limit forum
shopping, some commentators and legislators have raised concerns about forum shopping, particularly in
suits challenging government action. They argue that recent legal developments, such as the increased
prominence of nationwide injunctions, may exacerbate those concerns.
This Legal Sidebar provides an overview of court selection and forum shopping, with an emphasis on
court selection in federal court litigation. The Sidebar first outlines the legal authorities that determine
where a case can proceed. It then discusses how litigants may choose among available courts seeking a
litigation advantage. The Sidebar discusses the debate around forum shopping and judge shopping, then
closes with analysis of key proposed legal reforms.
Legal Doctrine on Jurisdiction and Venue
Two key legal factors determine where a lawsuit can proceed: jurisdiction and venue. Litigants and courts
consider jurisdiction and venue when deciding whether a case should proceed in federal or state court and
which specific court within either system should hear the matter. Jurisdiction and venue rules serve
multiple purposes, and in some circumstances, either by design or in effect, they limit opportunities for
forum shopping. Often, however, the law allows for multiple possible options.
Jurisdiction refers to the power of a court to rule on a matter. In order to hear a case, a court must have
both personal jurisdiction—meaning the court can exercise authority over the litigants—and subject
matter jurisdiction—meaning it can rule on the legal issues presented. Parties can waive personal
jurisdiction and consent to litigate in a court that could not otherwise exercise authority over them. By
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contrast, subject matter jurisdiction is mandatory, so a court lacking subject matter jurisdiction cannot
hear a case even if the parties consent.
Venue refers to the court where it is proper for a case to proceed. Venue will often lie in a court near
where one or more parties are located or where the events giving rise to litigation occurred. Like personal
jurisdiction, venue is subject to waiver, meaning that parties can consent to litigate in a court where venue
would not otherwise be proper.
The Constitution grants federal courts limited subject matter jurisdiction. Federal courts can generally
hear cases only if authorized to do so by the Constitution and a federal statute. Many suits challenging
government actions fall within the constitutional and statutory grants of jurisdiction, which, among other
things, allow federal courts to hear cases “arising under” the Constitution or federal laws or treaties and
cases to which the United States is a party. States, on the other hand, operate courts of general
jurisdiction, which are not bound by federal constitutional limits on subject matter jurisdiction. As part of
their general jurisdiction, state courts have concurrent jurisdiction to hear most cases that could proceed in
federal court.
Congress may enact legislation to direct certain types of cases to state or federal court, subject to some
constitutional limits. Congress can also channel cases within the federal judiciary to particular federal
courts. By default, venue for federal court litigation often lies in the trial-level district court in “a judicial
district in which any defendant resides” or where “a substantial part of the events or omissions giving rise
to the claim occurred, or a substantial part of property that is the subject of the action is situated.”
However, judicial review of certain agency actions begins in the federal appeals courts. In some cases,
federal statutes require that cases on a particular subject proceed in a particular court. For instance, a
provision of the Clean Air Act requires that challenges to certain administrative actions under the Act
proceed in the D.C. Circuit. Congress can also alter procedures for appellate review. For instance, most
district court decisions are subject to appellate review by the U.S. Court of Appeals for the circuit in
which the district court is located, but Congress has provided for direct appeal to the Supreme Court in
limited categories of cases.
Like the federal government, each state has its own system of courts with its own rules governing
jurisdiction and venue. State judicial systems may vary significantly, but each state has at least one court
of general jurisdiction. While Congress has significant power to structure the federal courts and set
procedural rules for federal litigation, it has limited authority to regulate state courts.
Court Selection, Forum Shopping, and Judge Shopping
When filing a civil suit, the plaintiff selects the court where the suit will initially proceed. Plaintiffs
challenging government action may have more choice in where to file suit than an individual plaintiff
suing an individual defendant does, because many challenges to government action are subject to
concurrent state and federal jurisdiction, and laws and government policies often affect people in multiple
geographic locations. The plaintiff’s choice of court may not be the final word on the matter. As discussed
below, a defendant who objects to the plaintiff’s choice of forum may sometimes be able to move a case
to a different court, and courts sometimes dismiss or transfer cases on their own initiative.
Often, a plaintiff challenging government action will have the option to file in either state or federal court.
One exception to this is when a resident of a state challenges a law or policy of her home state on state
law grounds, for instance, by arguing that a state statute violates the state constitution. Such a case
generally does not fall within the federal courts’ subject matter jurisdiction and would need to proceed in
state court, if at all. By contrast, suits against the federal government generally fall within the federal
courts’ jurisdiction, as do suits against either the federal government or a state government involving
claims arising under the federal Constitution or federal law.
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In addition to selecting between federal and state court, plaintiffs may also be able to select between
various courts within the federal or state judicial system. Federal laws and regulations often apply to
people in many areas of the country, sometimes nationwide, while state laws and regulations often apply
statewide. Entities such as nonprofit organizations with members in many geographic locations may be
able to establish jurisdiction and proper venue in any judicial district where one or more members
affected by a challenged action reside. Individuals, for-profit corporations, or state governments
challenging federal action may also be affected by government action in multiple geographic locations
and may thus be able to challenge the government action in any of several courts.
Plaintiffs sometimes select between state and federal court based on how they believe each court is likely
to rule on their claims. Within each system, litigants may also seek out the specific court they believe is
most likely to rule favorably. In particular, the federal judicial system allows for some variation in how
courts apply the law. While all federal courts generally apply the same body of federal law, they may
differ in how they interpret those laws (which some view as a benefit of the federal system, allowing for
full exploration of legal issues). The Supreme Court sometimes steps in to resolve divergences between
the courts of appeals known as “circuit splits,” but it does not always do so. A plaintiff may thus consider
existing precedents and elect to sue in a court that has interpreted the applicable law in a way that is more
likely to benefit her or avoid a court that she knows has interpreted the law unfavorably. Plaintiffs may
also select a forum based on how they believe different courts are likely to resolve novel legal questions,
sometimes basing the decision on a perceived partisan lean of the courts or judges. Traditionally, federal
courts have been idealized as independent, non-partisan entities that should apply the law in a politically
neutral manner. However, some litigants and other court watchers perceive differences among courts and
contend that certain courts may be more or less likely to accept particular arguments, especially in novel
or politically charged cases.
In some federal cases, plaintiffs may attempt to select not only the court in which their claims proceed but
also the specific judge who will hear the case. So-called judge shopping may take several forms, but one
method that has gained particular attention in recent years involves strategic filing in courts with few
available judges. Generally in the federal system, a new case is randomly assigned to a judge within the
appropriate district (or a three-judge panel of the appropriate appellate court). However, a number of
federal district courts are subdivided into geographic divisions, and some divisions have only one or two
active judges, so a plaintiff who sues in those divisions has a high likelihood of being able to proceed
before her judge of choice. In recent years, some observers have expressed concerns that litigants
challenging government actions were filing suit in those divisions in an attempt to judge shop.
Outside the context of litigation against the government, federal court forum shopping and judge
shopping are common in patent cases, notwithstanding a 2017 Supreme Court decision that imposed some
limits on the practice by narrowly construing the applicable venue statute with respect to place of
incorporation and business. Forum shopping may also occur in state courts, with litigants seeking to file
in the state with the most favorable laws or to proceed before a specific court within a state that they
believe may rule more favorably.
Traditionally, the plaintiff is the “master of the forum” and may sue in the court of her choice so long as
jurisdiction exists and the venue is appropriate. However, defendants and courts may sometimes override
the plaintiff’s choice of forum. For instance, if a plaintiff files in state court a case that could have been
filed in federal court, the defendant can remove the case from state court to federal court. The federal
government often removes state court litigation challenging federal laws or regulations. If a defendant
demonstrates that the plaintiff’s chosen venue is improper or that the court lacks personal or subject
matter jurisdiction, the court must dismiss the case or transfer it to another court where jurisdiction and
venue are proper. Likewise, if a federal court determines that it lacks subject matter jurisdiction at any
time during litigation, it must dismiss or transfer the case even if the parties do not seek dismissal. If
multiple plaintiffs file related suits in several different courts, the parties may litigate over whether cases
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challenging the same law or policy should be consolidated in multidistrict proceedings and, if so, which
court should hear the consolidated cases.
Debate Around Forum Shopping
Forum shopping is not a new practice—parties have long sought possible advantages during litigation,
including seeking to obtain a favorable decisionmaker to the extent possible. (An analogous practice is
jury selection, in which litigants routinely seek the most favorable possible panel.) The phrase forum
shopping may carry a negative connotation. However, some commentators defend forum shopping or
downplay some concerns around it, noting that it may be difficult to draw the line between generally
accepted litigation strategy and practices warranting concern.
A recent focus for concerns about forum shopping is the growing prevalence of, and public attention to,
emergency litigation and nationwide injunctions against government action. A nationwide injunction is a
court order that prevents the government from implementing a challenged law, regulation, or other policy
against all persons and entities whether or not such persons or entities are parties participating in the
litigation. (If the injunction is against the federal government, it may—but need not—apply nationwide.
Injunctions against state governments fully barring enforcement of state laws or policies generally do not
apply nationwide but are similar from a legal standpoint.) While nationwide injunctions have existed for
decades, many commentators argue that in recent years courts have become more willing to issue far-
reaching injunctive relief. An increase in nationwide injunctions raises the stakes in forum selection. If a
court blocks a policy with respect to the plaintiff only, the government may still be able to implement the
policy with respect to most people. On the other hand, if a court blocks a law or policy in its entirety, the
government must litigate the case, often on an emergency basis, before it can effectively pursue its policy
goals.
Nationwide injunctions and forum shopping have also featured in recent public discussion of perceived
politicization of the federal courts. Concerns about politicization relate to forum shopping because some
observers note that many recent cases challenging high-profile Democratic policies proceeded before
judges appointed by Republican presidents and vice versa. Some of those cases were filed in districts or
divisions that offered plaintiffs a high chance of assignment to preferred judges. The perception that
parties can pick a certain court or judge and thereby secure a more favorable case outcome may increase
the perception of politicization of the judiciary. This notion undermines the portrayal of judges as
independent, nonpartisan actors who apply the law neutrally.
Considerations for Congress
Commentators and legislators have advanced a number of proposals that would seek to address perceived
issues related to forum shopping and judge shopping. Because Congress generally has broad
constitutional authority to regulate proceedings in the lower federal courts but limited power to regulate
state judicial proceedings, this section focuses on proposed reforms to the federal courts.
Some recent proposals would specifically target judge shopping in divisions with few active judges. One
option would be to eliminate divisional case assignments so that cases would be randomly assigned
within each judicial district. That change could limit divisional judge shopping but would also increase
practical burdens on litigants or judges in geographically large districts, either requiring judges to travel
throughout the district or requiring litigants to travel for trial. Another option would be to cap the
probability that plaintiffs filing in a certain division are assigned to any particular judge, for example at
one in two or one in three. This change could be accomplished by restructuring divisions to eliminate
those with one or two active judges or by assigning some cases to judges in other divisions within a
district. The courts or Congress could also tighten venue restrictions by requiring each case “to be
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connected to not just the district in which it is filed, but to the division in which it is filed, if the district is
divided into divisions.”
Some proposals would change the venue rules for certain cases. One proposal would require all suits
seeking nationwide injunctions to be brought in a particular forum, such as the District of Columbia
federal courts. Proposals may also target narrower classes of cases. For instance, some recent proposals
have concerned forum selection in bankruptcy, antitrust, immigration, and patent cases. Another proposal
would have moved environmental litigation related to a specific natural gas pipeline from the Fourth
Circuit to the D.C. Circuit. As an alternative to requiring certain cases to proceed in a specific venue,
Congress could retain current venue rules but allow government defendants to transfer some cases. That
would provide flexibility for the government to consent to the plaintiff’s preferred venue or proceed in a
different court.
Congress might also consider reforms that would not directly regulate jurisdiction or venue but might
mitigate concerns around forum shopping in challenges to generally applicable government action. For
instance, limiting or banning nationwide injunctions, sending nationwide injunction cases to a three-judge
district court, or providing for direct Supreme Court review in such cases might limit litigants’ incentive
and ability to forum shop in district court.
Author Information
Joanna R. Lampe
Legislative Attorney
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