New Paper on Bias in Choice of Law

Dan Klerman has a new paper, Bias in Choice of Law: New Empirical and Experimental Evidence, that seeks to determine the extent to which U.S. courts exhibit bias when applying modern choice-of-law rules. The paper draws upon a dataset of choice-of-law cases involving automobile accidents decided between 1963 and 2018 and relies on regression analysis to identify patterns of bias while controlling for other factors. Here the abstract:

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.

The paper builds upon prior empirical work by TLB contributor and advisor, Chris Whytock, among others, that explores how U.S. courts apply choice-of-law rules. Klerman’s paper is short, intriguing, and transparent about its limitations. It’s well worth a read.