In an effort to peer into judicial decisionmaking more generally, a recent paper by Dan Klerman (USC), Bias in Choice of Law: New Empirical and Experimental Evidence, levers both observational and experimental data drawn from the vehicle accident context to examine choice of law disputes. The paper considers three leading sources of choice of law bias: pro-resident, pro-plaintiff, and forum law. The findings intrigue and complicate prevailing conventional wisdoms.
Specifically, core findings include that while judges seem to favor the plaintiff, judge decisions do not tilt in favor of application of the law they are most familiar with (the law of the forum). While state court judges favor local residents, federal court judges do not. Although the traditional “place of the injury” choice-of-law rule was more constraining than modern American choice-of-law standards (such as the Restatement Second), even judges under the traditional rule favored the plaintiff more often than seemed warranted. The abstract follows.
"Scholars have argued that modern American choice-of-law is subject to three biases: (1) a bias in favor of residents of the forum state (pro-resident bias), (2) a bias in favor of plaintiffs (pro-plaintiff bias), and (3) a bias in favor of the law of the forum (forum law bias). This article brings new evidence about these biases from a comprehensive database of vehicular accident cases and from the first experiment related to choice of law. Overall, there is some evidence of a pro-resident bias in state (but not federal) court, some evidence of pro-plaintiff bias in both federal and state court, and no evidence of a pro-forum bias."
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