Back to the Bremen (1972): forum selection and worldmaking

The US Supreme Court’s 1972 decision in The Bremen v. Zapata Off-Shore Co. is widely seen as a landmark in the law of jurisdictional party autonomy. Where earlier American courts had rejected forum-selection clauses as ‘ousters’ of jurisdiction and therefore as against public policy, the Supreme Court now firmly came out in their favour, and Chief Justice Burger’s resounding rejections of ‘parochialism’ in his opinion for the court have often been cited since. This brief Comment revisits the decision, arguing that The Bremen should be understood not as a mere statement of principle or change in doctrine, but as a particularly striking instance of worldmaking. The Comment discusses in particular: (a) the constructive roles of ‘scale’ and scalar modulation as techniques of worldmaking, and (b) some paradoxes in the character of the world of private party autonomy that the decision helped imagine and make real.