Myth of Mess? International Choice of Law in Action
Christopher A. Whytock, Myth of Mess? International Choice of Law in Action, 84 N.Y.U. L. Rev. 719 (2009).
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explains why these findings are encouraging from a global-governance perspective and why they might plausibly extend to unpublished international choice-of-law decisions and domestic choice-of-law decisions.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.