Choice of Law and Marriage: A Proposal
19 Pages Posted: 20 Nov 2002 Last revised: 20 Mar 2011
In commercial transactions, parties are generally empowered to choose (by a term in their contracts) which state law applies to their agreements. Most commentators believe that such choice of law power increases efficiency, by allowing parties to pick the regulatory regime that best fits the needs of their particular transaction. Would a similar argument justify couples about to be married picking the package of laws that would apply to their marriage (and, should it occur, divorce)? This article considers the question, investigating the way that giving couples such choice of law powers might overcome problems that arise from the current conflict of laws regime. The article also considers the countervailing arguments based on third-party effects, bounded irrationality, and the states' interests in the marital status of their citizens.
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