In Atlantic Marine Construction Company v. United States District Court, the Supreme Court held that a "contractually valid " forum selection clause should be enforced by federal courts absent ...extraordinary circumstances. Unfortunately, the Court provided no guidance on how to assess whether a clause is "contractually valid." This Article fills the gap. It argues that the answer to this question turns on three separate inquiries. First, a court should determine whether the forum selection clause is valid. Second, the court should interpret the forum selection clause to determine whether it is exclusive and applies to the claims asserted. Third, the court should evaluate whether the forum selection clause is enforceable. Until each of these inquiries is complete, it is impossible to know whether a clause is "contractually valid" as that term is used in Atlantic Marine. The third inquiry-relating to enforceability-is arguably the most complex. In an attempt to demystify it, the Article draws upon an original, hand-collected dataset of 658 federal cases decided after Atlantic Marine to evaluate how the federal courts resolve cases where one party challenges the enforceability of a forum selection clause. The cases in this dataset show that forum selection clauses are enforced roughly eighty-eight percent of the time. They also show that federal courts are reluctant to strike down forum selection clauses for being unreasonable. This reluctance, combined with other doctrinal innovations that favor the enforcement of these clauses, means that the current legal regime overwhelmingly and unduly favors the large corporations that write forum selection clauses into their agreements with customers and employees. In an attempt to address this imbalance, the Article urges the lower federal courts to adopt a number of specific reforms-none of which requires intervention by Congress or the Supreme Court-that would help to level the playing field.
Over the past half century, courts in the United States have developed canons of construction that they use exclusively to construe forum selection clauses. These canons play an important role in ...determining the meaning of these clauses and, by extension, whether litigation arising out of a particular contract must proceed in a given place. To date, however, these canons have attracted surprisingly little attention in the academic literature. This Article aspires to fill that gap. It provides the first comprehensive taxonomy of the canons that U.S. courts use to construe forum selection clauses. These interpretive rules fall into four groups: (1) the canons relating to exclusivity, (2) the canons relating to scope, (3) the canons relating to non-signatories, and (4) the canons relating to federal court. When a judge is presented with ambiguous language in a forum selection clause, she will frequently turn to one of these interpretive rules of thumb to resolve the ambiguity. In principle, each of these canons produces outcomes that are broadly consistent with the preferences of most contracting parties. In practice, this is not always the case. Drawing upon interviews and e-mail exchanges with 86 attorneys, the Article shows that several of these canons produce outcomes that are arguably inconsistent with majoritarian preferences. In such cases, the Article argues that these canons should be cast aside. In their place, the courts should adopt new interpretive default rules that more closely track the preferences of most contracting parties. The Article's final contribution to the literature relates to contract drafting. If a forum selection clause is unambiguous, there will be no need for the courts to invoke the canons. The Article concludes by urging contracting parties incorporate certain words and phrases into their contracts ex ante so as to avoid incurring the costs associated with litigating their meaning ex post.
Abstract
We examine spatial patterns of three types of Environmental Protection Agency violation, hazardous waste, water, and air quality, at the facility level. Since facilities operate ...independently, our null hypothesis is that their violations should be spatially randomly distributed. That is, we do not expect to observe spatial clusters of violations. In addition, systemic factors such as socio-demographic characteristics as well as environmental justice indices should not correlate with violations. Empirically, we find both hypotheses are refuted. Our findings confirm that environmental inequalities have been exacerbated by underlying social vulnerabilities, particularly in the case of Native Indian territories, which consistently show a disproportionately high number of environmental violations. We identify ‘hot spots’, spatial clusters where the number of violations is higher than expected in such a way that cannot be explained by socio-demographic or environmental factors. These hot spots call for local case studies to further investigate causes of spatial clustering of violations.
Over the past half-century, courts in the United States have developed canons of construction that they use exclusively to construe choice-of-law clauses. These canons are consistently applied by ...state and federal courts. They play an important role in determining the meaning of choice-of-law clauses and, by extension, the law that will be applied to resolve disputes that come before the courts. To date, however, these canons have attracted relatively little attention in the academic literature. This Article aspires to fill that gap. It develops the first taxonomy of these canons, which fall into one of two families. The first consists of the lexical canons. These canons assign meaning to words and phrases that commonly appear in choice-of-law clauses. The second consists of the canons relating to scope. These canons determine whether the law selected by the parties applies exclusively to contract claims or whether it also applies to related tort and statutory claims. The Article then draws upon interviews and e-mail exchanges with practicing attorneys in an attempt to determine empirically whether these canons generate outcomes that are consistent with the preferences of most contracting parties. It shows that some do and others do not. When a particular canon regularly produces outcomes that are inconsistent with majoritarian preferences, the Article argues that the courts should cast it aside. The Article concludes by addressing how to resolve conflicts among the canons when they arise.
Who is bound by a forum selection clause? At first glance, the answer to this question may seem obvious. It is black letter law that a person cannot be bound to an agreement without her consent. In ...recent years, however, courts have not followed this rule with respect to forum selection clauses. Instead, they routinely enforce these clauses against individuals who never signed the contract containing the clause. Courts justify this practice on the grounds that it promotes litigation efficiency by bringing all of the litigants together in the chosen forum. There are, however, problems with enforcing forum selection clauses against non-signatories. First, there is the unfairness of binding a litigant to a contract without her consent. Second, there is the danger that relying on a forum selection clause to assert personal jurisdiction over a non-signatory may be inconsistent with due process.
Post-transcriptional regulation of mRNA includes restriction mechanisms to prevent export and expression of mRNAs that are incompletely spliced. Here we present evidence that the mammalian protein ...Tpr is involved in this restriction. To study the role of Tpr in export of mRNA with retained introns, we used reporters in which the mRNA was exported either via the Nxf1/Nxt1 pathway using a CTE or via the Crm1 pathway using Rev/RRE. Our data show that even modest knockdown of Tpr using RNAi leads to a significant increase in export and translation from the mRNA containing the CTE. In contrast, Tpr perturbation has no effect on export of mRNA containing the RRE, either in the absence or presence of Rev. Also, no effects were observed on export of a completely spliced mRNA. Taken together, our results indicate that Tpr plays an important role in quality control of mRNA trafficked on the Nxf1 pathway.
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