The field of conflict of laws suffers from a lack of theoretical coherence, and therefore fails to provide a satisfactory basis for discourse, adjudication, legislation, and inter-governmental negotiation regarding issues of prescriptive scope. This Article advances a law and economics-based approach to conflict of laws for use in both the domestic and international context. The Article first assesses the theoretical coherence of some principal conflict of laws approaches, analyzing their resolution of four tensions: predictability and adminstrability versus accuracy, unilateralism versus multilateralism, private interest versus public interests, and courts versus legislatures. It refers to Professor Baxter's "comparative impairment" methodology as well as prior law and economic-based approaches to conflict of laws, and articulates, extends, and modifies these approaches. This Article proposes that decisionmakers faced with conflict of laws issues should allocate prescriptive jurisdiction over a subject matter to the government(s) whose constituents are affected by the subject matter, pro rata in proportion to the relative magnitude of such effects, as accurately as is merited given transaction costs in allocation of prescriptive jurisdiction. This simple proposition, however, raises many difficult theoretical and practical issues.
Joel P. Trachtman,
Conflict of Laws and Accuracy in the Allocation of Government Responsibility,
26 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol26/iss5/1