Economics, Public Choice and the Perennial Conflict of Laws

Abstract

This piece is a response to an article by Andrew Guzman, which proffers an efficiency framework for choice-of-law problems in interjurisdictional conflicts. The response incorporates insights from public choice theory into choice of law to draw two conclusions. First, public choice theory confounds our attempts to draw normative conclusions about efficient choice-of-law policies. Second, assuming that we can overcome these difficulties to ascertain the content of efficient choice-of-law policies, public choice theory exposes the practical difficulties of moving courts toward more efficient choice-of-law decisions. In short, the problem is both more difficult and more elusive than others, including Guzman, have presupposed.