Whytock Challenges the Conventional Wisdom that Transnational Forum Shopping Is Increasing in U.S. Courts

Professor Chris Whytock has a terrific new article out that is well worth reading. In Transnational Litigation in U.S. Courts: A Theoretical and Empirical Reassessment, published in the Journal of Empirical Legal Studies, he challenges the claim that transnational forum shopping by foreign plaintiffs is increasing. Using data on approximately 8 million civil actions filed in federal court, Whytock shows that transnational diversity cases represent a small and decreasing percentage of overall litigation. He also notes changes in substantive and procedural law that have made U.S. courts less attractive—and foreign courts more attractive—to foreign plaintiffs over the past few decades. Here is the abstract:

It is widely claimed that the level of transnational litigation in U.S. courts is high and increasing, primarily due to forum shopping by foreign plaintiffs. This “transnational forum shopping claim” reflects the conventional wisdom among transnational litigation scholars. Lawyers use the claim in briefs; judges use it in court opinions; and interest groups use it to promote law reform.

This article reassesses the transnational forum shopping claim theoretically and empirically. It argues that despite globalization, there are reasons to doubt the claim. Changes in procedural and substantive law have made the U.S. legal system less attractive to plaintiffs than it supposedly once was. Meanwhile, other legal systems have been adopting features similar to those that are said to have made the United States a “magnet forum” for foreign plaintiffs, and arbitration is growing as an alternative to transnational litigation. Empirically, using data on approximately 8 million civil actions filed in the U.S. district courts since 1988, the article shows that transnational diversity cases represent only a small portion of overall litigation, their level has decreased overall, and U.S., not foreign, plaintiffs file most of them. The data also reveal that federal question filings by foreign resident plaintiffs are not extensive or increasing either.

These findings challenge the transnational forum shopping claim and law reforms based on it, and suggest that it should no longer be used by lawyers, judges, and scholars. The article’s analysis also suggests new directions for transnational litigation as a field of scholarship that would move it beyond its current focus on U.S. courts toward a focus on understanding the dynamics of transnational litigation in global context.