Choice of Law and the Home Court Advantage: Evidence

38 Pages Posted: 29 Oct 1998

Multiple version iconThere are 2 versions of this paper

Date Written: October 1998

Abstract

Modern choice of law rules are often regarded as simply an opportunity for a judge to exercise ad hoc or unprincipled discretion over the outcome of the case, rather than as a principled exercise in the legal and policy reasoning underlying the choice of law theory. This paper tests the hypothesis of Lea Brilmayer that choice of law rules are "pro-resident, pro-forum-law, pro-recovery." To do so, I give an econometric reanalysis of the data used by Patrick Borchers, 49 Washington and Lee Law Review 357 (1992), who found that Brilmayer was correct.

I find that Brilmayer is correct with respect to forum law, and correct with respect to recovery in the sense that although the marginal plaintiff has roughly equal prospects in either a lex loci state or a modern state, the fact that there are on average more suits filed and more recoveries awarded in non-lex loci states suggests that the marginal plaintiff's case is weaker in the non-lex loci states than in the lex loci states. I also find that the data do not support Brilmayer's assertion about the pro-resident bias -- if anything, the home-court advantage is more pronounced in the traditional states.

I also argue that Borchers was overhasty in his pronouncement that "courts do not take the new approaches seriously." I show that once the volume of cases and the natural differences of legal culture around the nation have been accounted for econometrically, there are clear differences between the results found under the various paradigms and that far from being unprincipled, the results generally follow Borchers's own predictions.

Choice of law seems to adhere to economic predictions, as well; in places lacking a firm rule of lex loci, a presumption of lex fori seems to be the default substitute except in a few states adopting the minority view of Leflar. Given the fundamentally distributive role of choice of law, and the potential efficiency gain to the forum state of applying its own law, this outcome seems natural.

JEL Classification: K40, K41

Suggested Citation

Thiel, Stuart E., Choice of Law and the Home Court Advantage: Evidence (October 1998). Available at SSRN: https://ssrn.com/abstract=135716 or http://dx.doi.org/10.2139/ssrn.135716

Stuart E. Thiel (Contact Author)

DePaul University ( email )

1 E. Jackson Blvd.
Chicago, IL 60604
United States
312-362-8011 (Phone)

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