Some days I think Letters Blogatory has become the “Transnational Litigation Blog Republication and Review Service,” since I seem to spend a lot of time either commenting on things that TLB has posted or at least drawing your attention to them. That’s a testament to the excellent work Bill, Ingrid, Maggie, and John are doing. Today, I want to mention John Coyle’s excellent post with statistics on enforcement of forum selection clauses in state federal courts around the country. This is great, practical stuff for practitioners who are trying to choose the best forum for their cases or maybe more importantly, who are drafting clauses to be used later. The post gives statistics for many state courts and for all circuits and shows broad trends over time. This allows lawyers to consider both the state/federal question, in cases where they have a choice, and also to consider geography (again, when they have a choice).
The problem with these kinds of statistics is that they leave you wanting more. For example, consider the state courts of Delaware (100% enforcement) versus Louisiana (70% enforcement). What accounts for the difference? Could we control for type of case? Is it plausible that courts enforce clauses more often in, say, corporate law disputes than in whatever kind of case is more prevalent in Louisiana? And if we control for type of case, are the differences in enforcement rates as stark as they seem?
This is not a criticism of John’s post, which I really like. It’s greed pure and simple, greed for more data!