Document Type
Article
Abstract
Today’s conflicts law embraces two approaches: an early 20th century approach that chooses between states based on their territory and a mid- century approach that chooses between individual legal rules based on posited governmental interests. Although both approaches have merit, neither is fully conscious of lawmakers’ comprehensive plans for economic and social development and the related matters of institutional competence. As a result, both approaches may lead to unsatisfactory choices of law to govern regulated contracts and relationships.
To produce more satisfying choices of law for regulated contracts and relationships, this Article proposes a third approach to conflicts law. The approach draws on the public international law of prescriptive jurisdiction and on the management of complex organizations. The Article refers to its proposed third approach as the prescriptive framework.
The international law of prescriptive jurisdiction allocates law-making power among nations, and, by doing so, establishes spheres of decision- making for economic and social development. The spheres frequently overlap, with multiple nations having discretion to make decisions about development, to select suitable institutions, and to enact law accordingly. Nations deal with the overlaps and conflicts between their plans of development through deference to each other (frequently expressed as prescriptive comity) and through negotiated settlements embodied in international agreements.
This Article brings the perspective of international prescriptive jurisdiction into American conflicts law. Within the prescriptive framework proposed by this Article, American conflict-of-law rules also allocate law- making power among sovereigns, albeit among the sub-national sovereigns of a federal state. The framework recognizes that American states have their own spheres of decision-making for economic and social development, along with discretion to make decisions about development, to select suitable institutions, and to enact law accordingly. Those subnational spheres also overlap, and the prescriptive framework gives structure to the practice of deference to another lawmaker’s discretion.
The Article also draws on the institutional analysis of decision-making within complex organizations. An institutional analysis helps us understand states’ comparative competence and legitimacy in lawmaking. An institutional analysis allows us to identify the best decision-makers for economic and social development through the benefits of delegation, standards, and limitations to reduce the abuse of decision-making discretion, and the value of social norms to address problems in collective action. Hence, an institutional analysis gives structure to prescriptive comity among the American states. We are then able to reframe the American law of conflict of laws as structured prescriptive comity in the management of state economies.
Recommended Citation
Eric T. Laity,
International Prescriptive Jurisdiction and American Conflict of Laws,
52
Ga. J. Int’l & Compar. L.
239
(2024).
Available at:
https://digitalcommons.law.uga.edu/gjicl/vol52/iss2/2