Ori Aronson (Bar-Ilan University - Faculty of Law) has posted Forum by Coin Flip: A Random Allocation Model for Jurisdictional Overlap (Seton Hall Law Review, Forthcoming) on SSRN. Here is the abstract:
This Article offers a novel solution to forum shopping. Instead of the established regime, which accords the one of the parties to the litigation substantial power over the choice of forum, the Article suggests a new model for allocating cases among courts with overlapping jurisdiction — the Random Allocation Model. It argues that randomized case allocation would constrain strategic behavior at the initial stage of the proceedings, thereby saving wasteful costs and promoting greater distributive fairness among parties. Furthermore, randomization of case allocation would ensure a consistent pluralist quality to judicial output, by guaranteeing that multiple, diverse courts receive comparable cases and produce, over time, different responses to similar questions. Such structural pluralism would also enhance the epistemic value of judicial output, as instructive comparisons between the institutional behaviors of different forums become available. Although randomness is often thought to undermine the rational ideal of rule of law systems, the legal system in fact already resorts to random decision mechanisms in important circumstances. Randomized case allocation can thus be accommodated within an existing institutional framework, while facilitating the realization of the redeeming potential of diffuse court systems.