Below is the abstract for “International Prescriptive Jurisdiction and American Conflict of Laws,” available for download on SSRN.
There is a fundamental omission from the American law of conflict of laws. Among its rules and factors, there is no attempt to identify the best lawmaker to regulate a given activity. Few people ask the question, “Who ought to be making law for this matter?” Because of this omission, American conflict of laws is oblivious to a lawmaker’s decision not to regulate and misses a good way to give structure to the practice of deference to another lawmaker’s discretion. More trenchantly, American conflict of laws doesn’t frame its analyses in terms of lawmakers’ comprehensive plans of economic and social development and the related matters of institutional competence.
The international law of prescriptive jurisdiction does ask the question. It allocates law-making power among nations, and, by doing so, it 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 (frequently expressed as prescriptive comity) and through negotiated settlements embodied in international agreements.
This Article brings the perspective of international prescriptive jurisdiction into American conflict of laws to create a framework that addresses the question, “Who ought to be making law for this matter?” Under the framework, American conflict-of-law rules also allocate law-making power among sovereigns, albeit among the sub-national sovereigns of a federal state. The prescriptive framework recognizes that American states have their own spheres of decision-making for economic and social development, with discretion to make decisions, 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 prescriptive framework draws on the institutional analysis of decision-making. 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 allows us to give 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.