Costs of Sovereignty

Abstract

I categorize normative theories of private international law as naturalist, nationalist, or internationalist. Naturalist theories, including Beale's territorialism and Currie's interest analysis, limit state law according to an evident or higher-law notion of sovereignty. Nationalist theories limit state law only by state interest, taking into account the reactions of other states. Internationalist theories, including Brilmayer's state-subject connection, limit state law to account for the moral-philosophical claims of other states and their citizens to regulatory authority.

I then defend strong-form nationalism, distinguishing it from Goldsmith's and Posner's weak-form nationalism. I explain the costs other states can impose to deter excessive law application - costs of sovereignty - and how state legal decision-makers should take these into account. And I offer several examples drawn from national practice to illustrate this analysis.

Finally I discuss connections and extensions to: (1) positive claims about private-international-law practice and the relationship between private-international and corporate law; (2) sticky sovereignty and private-international-law technology, which enables states to better tailor their regulatory claims; (3) camouflaging sovereignty as an alternative to cutting back; (4) delegating sovereignty and the allocation of regulation between the state and private organizations; and (5) nationalism from the perspective of a federal organization regulating conflicts between subsidiary states.

Keywords: Private international law, conflict of laws, choice of law, sovereignty, jurisdiction, recognition and enforcement, corporate law, theory of the firm

JEL Classification: D23, K22, K33, K41