Abstract

http://ssrn.com/abstract=1257096
 
 

Citations (1)



 
 

Footnotes (330)



 


 



Myth of Mess? International Choice of Law in Action


Christopher A. Whytock


University of California, Irvine, School of Law

April 21, 2009

New York University Law Review, Vol. 84, 2009
U of Utah Legal Studies Paper No. 08-16

Abstract:     
Choice of law is a mess—or so it is said. According to conventional wisdom, choice-of-law doctrine does not significantly influence judges’ choice-of-law decisions. Instead, these decisions are primarily motivated by biases in favor of domestic over foreign law, domestic over foreign litigants, and plaintiffs over defendants. They are also highly unpredictable.

This Article argues that these "mess" claims do not accurately describe at least one domain of choice of law—international choice of law—and it demonstrates what is at stake in this debate for global governance. Part I provides a brief overview of choice-of-law doctrine in the United States. Part II documents the mess claims. Part III then shows how the mess claims, if correct, would be bad news for global governance. Choice-of-law doctrine can increase or decrease global economic welfare, enhance or undermine transnational rule of law, and facilitate or hinder transnational bargaining. The extent of these effects, and whether they are beneficial or harmful, depends largely on the degree to which choice-of-law doctrine actually influences judges’ international choice-of-law decisions and the extent to which those decisions are biased and unpredictable. The mess claims thus imply that if choice of law has any systematic effects on global governance they are likely to be harmful.

Part IV uses statistical analysis of an original dataset of published international choice-of-law decisions by U.S. district courts in tort cases to present evidence that choice-of-law doctrine indeed influences these decisions; that these decisions are not biased in favor of domestic law, domestic litigants, or plaintiffs; and that they are actually quite predictable. The mess claims, it turns out, may be myths—at least in transnational tort cases.

Part V explores the broader implications of my analysis. In particular, it explains why these findings are encouraging from a global-governance perspective and why they might plausibly extend to unpublished international choice-of-law decisions and domestic choice-of-law decisions. Overall, the Article’s findings suggest that the conventional wisdom exaggerates what is wrong with choice of law and implicitly underestimates its contributions to global governance.

Number of Pages in PDF File: 72

Keywords: Choice of Law, Conflict of Laws, Private International Law, Transnational Litigation, Courts, Judicial Decisionmaking, Empirical Legal Studies, Positive Theory, Law and Economics, Rule of Law, International Relations, Global Governance

Accepted Paper Series





Download This Paper

Date posted: August 27, 2008 ; Last revised: August 13, 2009

Suggested Citation

Whytock, Christopher A., Myth of Mess? International Choice of Law in Action (April 21, 2009). New York University Law Review, Vol. 84, 2009; U of Utah Legal Studies Paper No. 08-16. Available at SSRN: http://ssrn.com/abstract=1257096

Contact Information

Christopher A. Whytock (Contact Author)
University of California, Irvine, School of Law ( email )
401 East Peltason Drive, Suite 1000
Irvine, CA 92697-8000
United States
(949) 824-0496 (Phone)
HOME PAGE: http://www.law.uci.edu
Feedback to SSRN


Paper statistics
Abstract Views: 1,718
Downloads: 383
Download Rank: 43,289
Citations:  1
Footnotes:  330

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.515 seconds