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Xenophilia or Xenophobia in U.S. Courts? Before and After 9/11

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  • Kevin M. Clermont
  • Theodore Eisenberg

Abstract

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 20 years but with an uptick subsequent to 9/11. Accordingly, that aversion has caused the foreigners' “advantage” to follow the same track.

Suggested Citation

  • Kevin M. Clermont & Theodore Eisenberg, 2007. "Xenophilia or Xenophobia in U.S. Courts? Before and After 9/11," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 4(2), pages 441-464, July.
    • Handle: RePEc:wly:empleg:v:4:y:2007:i:2:p:441-464
    DOI: 10.1111/j.1740-1461.2007.00095.x
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    Cited by:

    1. Christopher A. Whytock, 2022. "Transnational Litigation in U.S. Courts: A Theoretical and Empirical Reassessment," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 19(1), pages 4-59, March.

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