Thursday, August 28, 2008

Whytock: Myth of Mess? International Choice of Law in Action

Christopher A. Whytock (Univ. of Utah - Law) has posted Myth of Mess? International Choice of Law in Action. Here's the abstract:

Choice of law is a mess. Or so it is said. According to the conventional wisdom, choice-of-law doctrine does not significantly influence judges' choice-of-law decisions. These decisions are instead motivated by judicial biases in favor of domestic over foreign law, domestic over foreign litigants, and plaintiffs over defendants. Furthermore, choice-of-law decisions are highly unpredictable.

This Article challenges each of these "mess" claims and demonstrates what is at stake for global governance. Part I provides a brief overview of choice-of-law doctrine. Part II documents the mess claims. Part III presents empirical evidence that choice of law might not be such a mess after all. Using an original dataset of international choice-of-law decisions by U.S. district court judges in tort cases, and statistical techniques including multivariate logit analysis, Part III suggests 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 IV demonstrates the implications of these findings for global economic welfare, transnational rule of law, and transnational bargaining. The analysis strongly suggests that the conventional wisdom exaggerates what is wrong with choice of law and underestimates the positive contributions that U.S. judges make to global governance.