“Sticky Beliefs” about Transnational Litigation

Empirical legal scholarship has been on the rise. But empirical research on transnational litigation remains relatively uncommon. This limits our knowledge of transnational litigation and, by hindering assessment of claims about transnational litigation, it allows what I call “sticky beliefs” to take hold.

Sticky beliefs are assertions made without empirical support, which are then uncritically repeated by courts, lawyers, interest groups, and scholars until they become entrenched conventional wisdom. Sticky beliefs sometimes seem intuitive, but they are often unreliable and can influence law, policy, and litigation outcomes in ways that are not justified by evidence.

In a recent essay, I discuss several sticky beliefs about transnational litigation that were eventually subjected to empirical evaluation and found to have shaky evidentiary foundations, raising doubts about decisions based upon them.

Bias Against Foreign Litigants?

It is often claimed that U.S. courts are biased against foreign litigants. In a pair of articles, Kevin Clermont and Theodore Eisenberg presented empirical evidence challenging that conventional wisdom. In the first study, published in 1996, they analyzed a dataset of more than 90,000 civil actions filed in the U.S. District Courts and found that “[i]n actions between an American and a non-American, non-Americans win 63% of the cases, whereas, inversely, Americans win only 37%.” Even after using statistical analysis to control for other factors, they found that foreign citizenship of a party increased the likelihood of winning and that this effect was substantively large and statistically significant. They did not interpret these results as suggesting that U.S. courts are biased in favor of foreign parties. Instead, they proposed a case-selection theory to explain their findings:

[T]he most plausible and powerful explanation for the foreigner effect is that foreigners are reluctant to litigate in America for a variety of reasons, including the apprehension that American courts exhibit xenophobic bias and the pecuniary and nonpecuniary distastes for litigating in a distant place. Foreigners abandon or satisfy most claims and, presumably, persist in the cases that they are most likely to win. Thus, cases involving a foreign litigant, as plaintiff or defendant, are usually cases in which the foreigner has the stronger hand.

In a follow-up study in 2007, Clermont and Eisenberg found the win rates of domestic and foreign plaintiffs had converged and leveled out by 2001; after 2001, the foreign plaintiff win rate again rose relative to domestic plaintiffs; and the win rates thereafter began converging again. Arguing that these findings were consistent with their case selection theory, they conjectured that during the 1980s, litigants assumed xenophobia prevailed, leading foreign plaintiffs to pursue only relatively strong cases. With the end of the Cold War and increasing globalization, this perception declined, thus gradually reducing the case selection effect. Then, after the 9/11 attacks, foreign parties again—albeit temporarily—feared litigating in U.S. courts, thus producing briefly renewed divergence. Overall, their analysis suggests that case selection, not “structural or cultural” factors, explains how foreign parties fare in U.S. courts.

Transnational Forum Shopping

A second sticky belief is that transnational litigation in U.S. courts is increasing, largely due to forum shopping by foreign plaintiffs. Perhaps the most memorable version of this transnational forum shopping claim is Lord Denning’s famous quip: “As a moth is drawn to the light, so is a litigant drawn to the United States.” This claim has been an enduring part of the conventional wisdom about transnational litigation, and it has animated diverse efforts to limit access to U.S. courts for transnational disputes both in particular cases and through changes in law and policy.

In a pair of 2011 articles, I questioned this conventional wisdom, arguing that forum shopping is evolving and that transnational litigation is increasingly multipolar and less U.S.-centric due to legal changes both in the United States and abroad. Then, in a 2022 article using data on approximately 8 million civil actions filed in the U.S. District Courts since 1988, I showed that transnational diversity cases represent only a small portion of overall litigation in the district courts; their level has decreased overall; and U.S., not foreign, plaintiffs file most of them. The data also revealed that federal question filings by foreign-resident plaintiffs are not extensive or increasing either. These findings challenge the transnational forum shopping claim—and the reform proposals they inspired—and they suggest that lawyers, judges, scholars and policymakers should no longer uncritically rely on it.

Other empirical research discussed in my essay challenges sticky beliefs about international choice of law and the forum non conveniens doctrine. Empirical legal research also has shed light on state court enforcement of foreign forum selection clauses, discovery in transnational litigation, the extraterritorial application of U.S. law, the recognition and enforcement of foreign arbitral awards (and transnational arbitration more generally), foreign sovereign immunitydecisionmaking, human rights litigation, and enforcement of foreign country judgments. Overall, however, there has not been extensive empirical research on transnational litigation.

Why Sticky Beliefs?

What explains sticky beliefs about transnational litigation? My essay concludes by considering several possibilities. First, empirically evaluating propositions about transnational litigation is laborious. Thus, it is unsurprising that claims are so often made without first empirically testing them. Second, in the abstract, sticky beliefs may be quite plausible, based on reasonable intuitions, and sometimes combined with apt anecdotes. When assertions have these qualities, they are easy to believe and prone to become sticky even if they lack sound empirical support. Third, in some cases, sticky beliefs are instrumental in the sense that their content is intended—explicitly or implicitly—to serve a particular end, and for that reason they may sometimes be deliberately cultivated. For example, the transnational forum shopping claim has been used by interest groups to argue for law reforms limiting U.S. litigation exposure of multinational corporations by increasing restrictions on court access.


The best response to sticky beliefs is to subject them to more rigorous scrutiny. If they do not have a basis in empirical evidence, they should not be stated as established facts and repeated uncritically. For those beliefs that seem most consequential for law or policy, or those deemed the most interesting from a scholarly perspective, resources can be invested to subject them to empirical testing. Although this takes time, and such resources are scarce, the empirical assessment of sticky beliefs offers a promising avenue for future transnational litigation scholarship.

To be sure, even the best designed empirical research cannot definitively prove or disprove particular claims about transnational litigation—but it can reduce the likelihood that law and policy choices will be based on or justified by claims that lack empirical foundations.

As Clermont and Eisenberg observed about their study of foreign parties in American courts: “[T]hese findings about foreigners in American courts reveal a deeper problem with knowledge of the legal system. Most observers probably have believed that judgments run against foreigners in American courts. As usual, even basic descriptive data about the functioning of American courts was lacking. [There is a] need to verify, notwithstanding compelling anecdotal evidence, deeply held beliefs about how the legal system works.” This is as true about transnational litigation as about litigation in general, and it is one reason why the field of transnational litigation would benefit from further empirical research.