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9 Duke J. Const. L. & Pub. Pol'y Sidebar 1 (2013)

handle is hein.journals/dukjppsid9 and id is 1 raw text is: ATLANTIC MARINE V. J-CREW: THE
Forum-selection clauses are routinely included in contracts to
designate the location of future disputes.' They benefit parties by
allowing them to agree in advance on a neutral and convenient forum
in which to litigate should the need arise.2 Companies that do business
in more than one state or country frequently rely on forum-selection
clauses to avoid lawsuits in multiple forums.3 Despite the benefits of
forum-selection clauses, however, parties often choose to violate the
express conditions of their contracts and sue in forums other than the
one contractually specified.4
Courts disagree on the appropriate procedural mechanism by
which to enforce forum-selection clauses when parties have
contractually agreed to a specified forum, but a party to that contract
files suit in a different forum. The circuit courts have taken three
different approaches.' First, the majority of circuits treat forum-
* J.D. Candidate, Duke University School of Law, 2015. I thank Professor Stephen Sachs,
Jonathan Rash, Tara McGrath, Judea Davis, Stephanie Peral, Tori Bennette, and Ryan Marcus,
all of whom provided great advice and edits.
1. See Lee R. Hardee, Enforcing Forum-Selection Clauses: The Federal Court Dilemma
and the Arbitration Clause Alternative, J. Disp. RESOL. 401, 401 (1990) (noting that although
forum-selection clauses have become standard, their validity has come into question because
the Supreme Court has done little to define more clearly how forum-selection clauses are to be
2.  Id.
3.  Id.
4.  Id.
5. See Union Elec. Co. v. Energy Ins. Mut. Ltd., 689 F.3d 968, 970-73 (8th Cir. 2012)
(holding that a forum-selection clause mandating a federal forum can be enforced through a
motion to dismiss or transfer based on improper venue); Rivera v. Centro Medico de Turabo,
Inc., 575 F.3d 10, 15 (1st Cir. 2009) (holding that courts in the First Circuit should treat a motion
to dismiss based on a forum-selection clause as a Rule 12(b)(6) motion to dismiss for failure to
state a claim upon which relief can be granted); Jumara v. State Farm Ins. Co., 55 F.3d 873, 877-
78 (3d Cir. 1995) (holding that a forum-selection clause allowing for an alternative federal

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