The Forum Selection Clause: A Tale of Two Concepts
Taylor, David H.
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This article posits that lack of discussion is a principal reason why the parameters of the forum selection clause remain ill-defined, and that the struggle to construct a standard for enforcement has proven difficult. Part I briefly explains the two contexts in which a forum selection clause can arise. Parts II - VI examine the Court's consideration of a standard for enforcement using the Supreme Court's three pronouncements on the topic in the Bremen v. Zapata Off-shore Co., Stewart v. Ricoh Corp., and Carnival Cruise Lines v. Shute decisions. Part VII discusses the narrow conceptual view reflected in the approach of Stewart; the forum selection clause should be treated as just one factor in determining where venue should lie. Part VII also briefly discusses the calls for legislative reform, by arguing that the preferred mechanism for reform is to recognize the standard for enforcement of Stewart. Moreover, if legislative reform is necessary, adhering to the principle that less is more, this article proposes legislative reform in terms of a minor revision to 28 U.S.C. § 1391, the federal venue statute and to 28 U.S.C. § 1404(a), the transfer of venue statute.