Immigrants, Culture, and American Courts: A Typology of Legal Strategies and Issues in Cases Involving Vietnamese and among Litigants

Abstract

The literature on the culture of immigrants and the effect that it has had on American courts is largely based on three high-profile criminal cases involving Asian immigrants who raised a cultural defense. This article uses a sample of 181 criminal and civil court cases with at least one Vietnamese or Hmong litigant in order to construct and illustrate a typology that provides a more complete portrayal of the legal strategies and issues that bring immigrants' culture into American courts. The most common way that culture arises in litigation is through the defensive legal strategy of a criminal defendant. But immigrant plaintiffs in civil cases and prosecutors in criminal cases also use culture as an offensive legal strategy. Similarly, judges have the discretionary power to invoke culture during jury selection and in sentencing criminal defendants. The most important finding, however, is that language rather than conduct norms is the most frequent cultural element raised by Hmong and Vietnamese litigants in both criminal and civil cases. Cross-cultural miscommunication, not cross-cultural normative conflict, is the primary way in which the culture of Hmong and Vietnamese refugees affects American courts.