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Email Event
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In their new book The Law Market (Oxford University Press, January 2009), professors Erin A. O'Hara, director of the Law and Human Behavior Program at Vanderbilt University Law School, and Larry E. Ribstein of the University of Illinois College of Law explore the concept of law as a product for
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which people can shop, regardless of geographic borders. They examine how choice-of-law rules (which determine what substantive law will be applied to a case with different legal jurisdictions) and jurisdictional competition enable law markets to function efficiently. This wide-ranging analysis covers the law market’s implications for topics ranging from corporate governance and business law to marriage.
At this event, O'Hara and Ribstein will discuss their book and examine choice-of-law issues in significant depth. Max Stearns, Marbury Research Professor of Law at the University of Maryland School of Law, will comment.
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3:45 p.m.
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Registration
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4:00
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Introduction:
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Michael S. Greve, AEI
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Presenters:
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Erin A. O’Hara, Vanderbilt University Law School
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Larry E. Ribstein, University of Illinois College of Law
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Discussant:
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Max Stearns, University of Maryland School of Law
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5:15
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Adjournment
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American Enterprise Institute
WASHINGTON, FEBRUARY 4, 2009--Current
choice-of-law rules, which determine what substantive law will be
applied to a case with different legal jurisdictions, are insufficient
to meet the legal challenges presented by increasing globalization and
mobility, Larry Ribstein argued at an AEI book forum on January 29. Ribstein, a law professor at the University of Illinois, presented The Law Market
(Oxford University Press, 2009), coauthored with Erin O'Hara of
Vanderbilt University Law School. In the book, Ribstein and O'Hara
contend that "widespread enforcement of choice-of-law clauses
powerfully enhances [the] 'law market,' whose forces can in turn
profoundly affect legal systems." When people can choose the laws by
which they are governed or create contracts, they said, "a new set of
political actors gains influence, and state lawmakers are thereby more
effectively disciplined." The implications of such an approach include
not only traditional business incorporation but also social issues,
such as state recognition of same-sex marriages, living wills, and
surrogacy contracts. The Law Market calls for a federal statute to require that
states adhere to contractual choice-of-law provisions, except in cases
where states pass "explicit legislation" to designate which
choice-of-law provisions they will refuse to enforce. Ribstein
contended that this solution offers "predictability, which is one thing
we're not getting from the chaos of state choice-of-law rules now," as
well as more interest group and individual involvement in state
legislative processes. Over time, he argued, the proposal will produce
an "equilibrium" that protects contractual rights, allows states and
local jurisdictions to enact "reasonable regulations," and offers
contracting parties "a way out of the tangle" of existing federal,
state, and local laws. Max Stearns of the University of Maryland commended Ribstein for "an
ambitious and broad project" that represents a significant addition to
the scholarly debate over contractual choice-of-law. He acknowledged
the value of Ribstein's proposal but questioned whether Congress would
have the regulatory authority to enact such a statute under what the
authors offer as potential grounds: the Full Faith and Credit Clause
and the Commerce Clause. Existing constitutional law, Stearns argued,
does not fully show whether such authority exists. He also questioned
whether the book's proposal for choice-of-law rules, which would
"[raise] the cost to interest groups of getting special interest
legislation," would also be problematic for passing "what we do want,
which is general-interest legislation." AEI's Michael S. Greve called The Law Market
"a major contribution" to clearing up the "very complicated and messy"
choice-of-law doctrines. He expressed reservations about the proposed
federal statute and asked whether "federal common law" could be "a
tenable or attractive" alternative approach. --LUCI HAGUE For video, audio, and event information, visit www.aei.org/event1876. For other information, visit www.aeilegalcenter.org. For media inquiries, contact Veronique Rodman at 202.862.4870 or vrodman@aei.org. ###
Michael S. Greve is the John G. Searle Scholar at AEI. His research and writing cover constitutional law, federalism, and business regulation. Mr. Greve cofounded and, from 1989 to 2000, directed the Center for Individual Rights, a public interest law firm that served as counsel in many precedent-setting constitutional cases, including United States v. Morrison and Rosenberger v. University of Virginia. He also serves on the board of directors of the Competitive Enterprise Institute. His publications include numerous law review articles and books, including The Demise of Environmentalism in American Law (AEI Press, 1996) and Real Federalism: Why It Matters, How It Could Happen (AEI Press, 1999). Mr. Greve is the coeditor, with Fred L. Smith, of Environmental Politics: Public Costs, Private Rewards (Praeger, 1992) and, with Richard A. Epstein, of Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy (AEI Press, 2004) and Federal Preemption: States' Powers, National Interests (AEI Press, 2007).
Erin O'Hara is a professor of law, the director of the law and human behavior program, and the associate dean of academic affairs at Vanderbilt University School of Law. Her research interests include choice of law, conflict of laws, dispute resolution, and international contracts. Her most recent work includes two books and a series of important articles on choice of law, as well as articles on the influence of law on apology in dispute resolution and articles on the influence of law on interpersonal trust in relationships. Ms. O'Hara taught at George Mason University School of Law from 1995 until she joined the Vanderbilt law faculty in 2001. In 2005, she was a visiting professor at Northwestern Law School. Prior to joining the George Mason faculty, Ms. O'Hara clerked for Chief Judge Dolores K. Sloviter of the U.S. Court of Appeals for the Third Circuit. She also served as a Bigelow Teaching Fellow and lecturer in law at the University of Chicago Law School, as a visiting associate professor at Georgetown University Law Center, and as a visiting assistant professor in the departments of legal studies, economics, and finance at Clemson University.
Larry E. Ribstein is the Mildred Van Voorhis Jones Chair in Law at the University of Illinois College of Law. He is the author of leading treatises on limited liability companies, Ribstein and Keatinge on Limited Liability Companies (West, 2005) and partnership law Bromberg and Ribstein on Partnerships (Aspen Publishers, 2008), as well as two business associations casebooks. His is also the coauthor of The Sarbanes-Oxley Debacle (AEI Press, 2006) and The Constitution and the Corporation (AEI Press, 1995). From 1998 to2001 he was the coeditor of the Supreme Court Economic Review. Mr. Ribstein has written or coauthored over one hundred articles on subjects including corporate law, securities and partnership law, constitutional law, bankruptcy, film, the internet, family law, professional ethics and licensing, uniform laws, choice of law, and jurisdictional competition.
Max Stearns is the Marbury Research Professor of Law at the University of Maryland School of Law. His research focuses on novel methodologies to study a wide range of doctrines in public law, with a particular emphasis on judicial decision-making processes and structural constitutional law. His specific methodological expertise centers on public choice, social choice, and game theory. Mr. Stearns teaches constitutional law, the federal courts, and federal civil rights. His articles have appeared in numerous journals, including the Yale Law Journal, the University of Pennsylvania Law Review, the California Law Review, the Stanford Law Review, and the Vanderbilt Law Review. Mr Stearns is the author of Constitutional Process: A Social Choice Analysis of Supreme Court Decision Making (University of Michigan Press, 2002), the first book length analysis of how collective decision making processes shape doctrines and case outcomes in the United States Supreme Court. Previously, he clerked for the Chief Judge Harrison L. Winter of the U.S. Court of Appeals for the Fourth Circuit.
