Myth of Mess? International Choice of Law in Action

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—intern ational choice of law—and it demonstrates what is at stake in this debate for global governance. This Article 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. Lastly, the Article 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why these findings are encouraging from a global-governance perspective, and why they might plausibly extend to unpublished international choice-of-law decisions and domestic choice-of-law decisions. 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.