Lawyers regularly must consider where to litigate a dispute: federal or state court; what state/venue; court or arbitration? In addition to considerations of tactics and convenience, lawyers must always analyze constitutional, statutory, and contractual limitations. Article III of the Constitution imposes subject-matter and standing limits, for example, as sometimes further limited by statute. The due process clauses of the Constitution and 14th Amendment impose limit of fairness on where a defendant can be sued, whether in state or federal court; statutes and contracts also may be relevant.

Sometimes the choice may be obvious, or strictly cabined. Because plaintiffs and defendants may have different interests on where to litigate, though, the complexity of legal guardrails may require a case-by-case factual analysis. Hence, courts frequently order or permit preliminary discovery on the jurisdictional issue when a defendant files a motion to dismiss or transfer a case, or to compel arbitration. Because courts should not litigate the merits before deciding jurisdiction, and the jurisdictional discovery should not delay the point when the correct forum is seized of the case, such preliminary discovery is usually strictly limited. Rarely do courts or parties agree to merge merits and jurisdictional discovery, though sometimes facts to be discovered may sometimes apply to more than one issue.