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From Politics to Efficiency in Choice of Law

Posted: 5 Jan 2001  

Larry E. Ribstein

University of Illinois College of Law (deceased); PERC - Property and Environment Research Center

Erin A. O'Hara O'Connor

Florida State University - College of Law; Gruter Institute for Law and Behavioral Research

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Abstract

This article proposes a comprehensive system for choice of law that is designed to enhance social wealth by focusing on individual rather than governmental interests. To the extent practicable, parties should be able to choose their governing law. In the absence of an explicit agreement, courts should apply rules that facilitate party choice or that select the law the parties likely would have contracted for - that is, the law of the state with the comparative regulatory advantage. The system relies on clear rules that enable the parties to determine, at low cost and ex ante, what law applies to given conduct, and therefore to choose the applicable law by altering their conduct. State regulatory concerns are accounted for through explicit state legislation on choice of law rather than ad hoc judicial determination of the states' interests. The article shows how this system might be implemented through jurisdictional competition.

Keywords: conflict of laws, public choice, procedure, law and economics, civil procedure, contracts, commercial law, product liability, jurisdictional competition, torts

JEL Classification: K11, K12, K13 K22, K41

Suggested Citation

Ribstein, Larry E. and O'Hara O'Connor, Erin A., From Politics to Efficiency in Choice of Law. University of Chicago Law Review, Vol. 67, P. 1151, 2000. Available at SSRN: https://ssrn.com/abstract=253796

Larry Ribstein (Contact Author)

University of Illinois College of Law (deceased)

PERC - Property and Environment Research Center

2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

Erin O'Hara O'Connor

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

HOME PAGE: http://www.law.fsu.edu/our-faculty/deans/ohara-oconnor

Gruter Institute for Law and Behavioral Research

158 Goya Road
Portola Valley, CA 94028
United States

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