Michael S Green (William & Mary Law School) has posted Authority and Interest Analysis (Roxana Banu, Michael S. Green, & Ralf Michaels (eds.), THE PHILOSOPHICAL FOUNDATIONS OF PRIVATE INTERNATIONAL LAW (Oxford University Press) (forthcoming)) on SSRN. Here is the abstract:
Under any plausible theory of the authority claimed by legal officials, they must attempt to sum up the relevant considerations for and against their directives. Someone who makes an intentionally arbitrary decision, by refusing to take relevant considerations into account, cannot possibly be an authority. I use this requirement for authority to argue against interest analysis — the choice-of-law approach used by most courts in the United States and the basis for the American Law Institute’s proposed Third Restatement of the Conflict of Laws. Interest analysis chooses law arbitrarily, in a manner that is incompatible with authority.
Interest analysts claim that the purposivist method used for domestic choice of law (which I call the standard method) should also be used when choosing between the laws of different jurisdictions. To assess this claim, I attempt to model the standard method. First, I describe a simple legal system, Ruritania, whose lawmaker, Rex, has enacted several laws. Next, I describe a scenario unanticipated by Rex, forcing a Ruritanian court to choose which of two candidate laws enacted by him applies. Under the standard method, the court makes its choice by considering how well each law’s purposes would be satisfied by its application to the facts. I conclude that the standard method satisfies the requirement for authority: the court attempts to determine which law the balance of relevant considerations recommends, in a manner constrained by Rex’s prior assertion of authority.
I then describe a simple interjurisdictional choice-of-law problem, in which a court uses interest analysis to choose between one of Rex’s laws and a competing law created by Basil, the lawmaker of Borduria. Interest analysts claim that their approach is the application of the standard method to interjurisdictional choice of law. They are wrong. An interest analysis court does not use the standard method. If it chooses Rex’s law over Basil’s, it does so solely because a subset of considerations in favor of Rex’s law is vindicated, ignoring other relevant considerations. It chooses law arbitrarily in a manner that is incompatible with authority. And that is a sufficient reason to reject interest analysis as a choice-of-law approach.
Highly recommended.
