Transnational Class Actions in the Shadow of Preclusion

Clopton, Zachary D.

doi:10.2139/ssrn.2386329

Cited by 2 publications

(2 citation statements)

References 27 publications

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“…Unfortunately, comprehensive data on transnational litigation in state courts is not currently available. There are doctrinal reasons to doubt that transnational class actions would be increasing, such as those given by Bradt andRave (2018, p. 1266) (noting the "demise of the mass tort class action"); Burbank (2012, p. 664) (documenting the "assault on class actions" and discussing implications for transnational litigation in U.S. courts); Clopton (2015) (noting barriers to class actions due to reluctance to certify classes including non-U.S. citizens); Hensler (2017, p. 965) ("In recent years, as the U.S. Supreme Court has steadily closed the courthouse doors to class actions in the United States, an increasing number of foreign jurisdictions have adopted some form of representative group proceeding along the lines of a modern class action. "); Klonoff (2013) (cataloging growing barriers to class actions, such as heightened evidentiary burdens, stringent class definition requirements, and heightened scrutiny of numerosity, commonality and predominance); and Lein (2018, p. 144) (explaining why the United States has become "less attractive for cross-border [class actions] involving European claimants").…”

Section: Conclusion: Implications For Law Policy and Transnational Li...mentioning

confidence: 99%

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Transnational Litigation in U.S. Courts: A Theoretical and Empirical Reassessment

Whytock¹

2022

J Empirical Legal Studies

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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—at least not without supporting data. 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.

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Section: Conclusion: Implications For Law Policy and Transnational Li...mentioning

confidence: 99%

“…42 42 For example, Burbank (2012) documents the “assault on class actions” and discusses the implications for transnational litigation in U.S. courts (p. 664) and Clopton (2015) focuses on barriers to class actions due to reluctance to certify classes including non‐U.S. citizens. …”

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confidence: 99%