Washington Law Review


Once the object of American judicial loathing, forum selection agreements recently have enjoyed a far more favored status. Forum selection agreements promote certainty in commercial relationships and reduce transaction costs arising from litigation of threshold issues such as personal jurisdiction and venue. In 1988, in Stewart Organization, Inc. v. Ricoh, the Supreme Court confused several central issues, including whether state or federal law governs enforcement in diversity actions, the mechanism for enforcing forum selection agreements, and the consequences of seeking to enforce an agreement by transferring the matter from one federal court to another. More recently, in Carnival Cruise Lines, Inc. v. Shute, the Court enforced a clearly adhesive forum selection agreement, raising the specter that such agreements will be enforced routinely against economically disadvantaged parties. Lower courts are now in disarray because of these sharp turns and convoluted doctrine. As a solution, Professor Borchers proposes a comprehensive federal statute that would limit enforcement of forum selection agreements to transactions of $50,000 or more and would unify the enforcement standards and procedures.

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