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

Authors


  • This article was presented at the Fall 2006 Meeting of the American Bar Association Section of International Law, Nov. 8–11, Miami.

  • The data used in this article (federal court cases: fiscal years 1987–2005) were originally collected by the Federal Judicial Center. The data were made available by the Inter-University Consortium for Political and Social Research. Neither the Center nor the Consortium bears any responsibility for the analyses presented here.

*Kevin M. Clermont, Cornell University, Myron Taylor Hall, Ithaca, NY 14853, email: kmc12@cornell.edu. Clermont is Flanagan Professor Law, Cornell University. Eisenberg is Henry Allen Mark Professor of Law, Cornell University.

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.

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