Private Law Theory

ABSTRACT
Klerman (2023) brings evidence about alleged biases in American choice of law; he finds some evidence of a pro-resident bias, some evidence of pro-plaintiff bias, and no evidence of a form-law bias. This comment raises two methodological concerns. First, determining bias in choice of law is impossible without laying out what the neutral baseline would be from which bias deviates; in choice of law this is complicated. Second, choice-of-law decisions are not taken in isolation – they succeed decisions about the forum, and they precede decisions in substance. Without accounting for both, bias cannot be conclusively established.

Karayanni, Michael M and Michaels, Ralf, Is Choice of Law Biased? How Would We Know?, Journal of Institutional and Theoretical Economics (JITE), volume 179, no 1, pp 51-64, January 2023, DOI: 10.1628/jite-2023-0004; Max Planck Private Law Research Paper No 23/6.