Xenophobia in American Courts

Abstract

Lawyers and other commentators often remark that American courts, and particularly American juries, are biased against foreign litigants. No research, however, has ever confirmed this suspicion. Indeed, an exhaustive previous empirical study, published seven years ago in the Harvard Law Review, concluded that foreign litigants are successful in litigation more often than their domestic counterparts. In this Article, Professor Kimberly Moore reexamines the issue by reporting the result of research on an original dataset of over 4000 patent cases. The results cast substantial doubt on the hypothesis that foreign and domestic parties are treated identically in jury trials of intellectual property rights. In patent jury cases between domestic and foreign parties, the domestic party won 64% of the time, with the foreign party winning in the remaining 36% of cases. Domestic and foreign parties won at equal rates with judges. Marshaling a range of other evidence, Professor Moore explains that these results are likely to understate the degree of bias, placing a floor but not a ceiling on the impact of xenophobia. The discrepancy between these results and those of the Harvard Law Review study finding xenophilia may be attributable to the complexity of patent law or to problems that Professor Moore identifies in the data on which that study was based.

Keywords: Intellectual property

JEL Classification: K33