23 Pages Posted: 11 Aug 2006
Date Written: November 2006
This article revisits the controversy regarding how foreigners fare in U.S. courts. The available data, if taken in a sufficiently big sample from numerous case categories and a range of years, indicate that foreigners have fared better in the federal courts than their domestic counterparts have fared. Thus, the data offer no support for the existence of xenophobic bias in U.S. courts. Nor do they establish xenophilia, of course. What the data do show is that case selection drives the outcomes for foreigners. Foreigners' aversion to U.S. forums can elevate the foreigners' success rates, when measured as a percentage of judgments rendered. Yet that aversion waxes and wanes over the years, having generally declined in the last twenty years but with an uptick subsequent to 9/11. Accordingly, that aversion has caused the foreigners' advantage to follow the same track.
Suggested Citation: Suggested Citation
Clermont, Kevin M. and Eisenberg, Theodore, Xenophilia or Xenophobia in American Courts? Before and After 9/11 (November 2006). Cornell Legal Studies Research Paper No. 06-018. Available at SSRN: https://ssrn.com/abstract=923595 or http://dx.doi.org/10.2139/ssrn.923595