American Gavel Across Borders: An Empirical Study of U.S. District Court Cases on Extraterritorial Exercise of Civil Jurisdiction

Abstract

U.S. districts courts have been increasingly faced with international cases that involve foreign litigants and foreign conduct. Despite an abundance of doctrinal analyses on the U.S. Supreme Court’s decisions involving extraterritorial civil jurisdiction, there are abysmally few empirical studies that look at the patterns of decision-making in lower federal courts. This research attempts to fill the gap and examines 228 decisions dealing with extraterritoriality rendered from 2000 to 2015. At the outset, our findings reject the common narrative in legal scholarship that U.S. courts over-extend their jurisdiction abroad and engage in legal imperialism. Despite the overall increase in the number of extraterritorial cases, courts assert jurisdiction in only 43% of them. We examine several factors that might explain the outcomes in these cases and find strong evidence that claims involving conduct that took place in developed countries have a higher likelihood of being dismissed on jurisdictional grounds than those in developing countries. We also find that, similar to the overall domestic litigation trends, individual plaintiffs face lower likelihood of having their claims survive the jurisdictional challenge than corporate plaintiffs. We find weak or no evidence of difference in the outcomes between economic claims, such as for example securities or antitrust claims, and non-economic claims that include extraterritorial tort, environmental and employment discrimination claims. Similarly, we do not find statistically significant effect of comity and foreign policy arguments on the outcomes.