Why Alienage Jurisdiction? Historical Foundations and Modern Justifications for Federal Jurisdiction Over Disputes Involving Noncitizens

Abstract

In an era of global interdependence, it is incumbent upon the United States to assure foreign citizens and corporations that the American judiciary will insulate them from xenophobic bias. In this article, Professor Johnson argues that Congress must at least preserve, if not expand, the current scope of federal alienage jurisdiction to fulfill this obligation. Professor Johnson explains why alien jurisdiction's unique justifications should divorce it from recent trends to abolish diversity jurisdiction. He notes that in the face of state court hostility to foreign creditors, the Framers empowered the federal courts to adjudicate alienage cases in order to attract international investment and mitigate foreign disputes. Turning to the present, Professor Johnson finds recent legislation and court decisions suggest that xenophobic attitudes remain pervasive. After surveying state and federal court decisions and scholarly opinion, he concludes that the federal judiciary is best suited to providing foreign litigants with an impartial forum.