Suchergebnisse

This Article uses public choice theory to analyze the function of choice-of-law clauses in contracts. Choice-of-law clauses are now quite common and are increasingly enforced, especially with the proliferation of international and Internet transactions. Because these clauses can be used by parties to avoid regulation, academics are now vigorously debating the extent to which this contractual opt out should be permitted. The Article presents a positive political theory of the interplay of legislative action and the enforcement of choice of law. It demonstrates that the important normative debate over choice of law is somewhat misguided because both sides fail to fully understand the effect that these clauses can have on interest group bargaining in the legislature. Once the issue is fully understood, seemingly counterintuitive posturing can result: Regulatory proponents may actually favor choice-of-law clauses, and Libertarians can find themselves opposing their enforcement.

1. Introduction. 2. Policy Arguments. 3. Choice-of-Law Principles. 4. The Creation of a Law Market. 5. Arbitration and The Law Market. 6. The corporate Law Market. 7. Consumer Contracts. 8. Marriage and Other Social Issues. 9. Property. 10. A Federal Choice-of-law Statute. 11. Summary and Implications. Notes

This text explores a new way of looking at law, not as something that can be changed only through cumbersome political and legislative processes or avoided by physical movement, but as something that can be shopped for in a market.