Choice of law and the home-court advantage: evidence

This paper tests three separate hypotheses about inherent biasesin the application of modern choice of law rules: (1) Brilmayer's1980 hypothesis that such rules camouflage 'pro-resident, pro-forum-law,pro-recovery' biases, (2) Borchers's 1992 hypothesis that courtsdo not consistently apply the principles of the choice of lawrule they claim to be applying, and (3) an economic hypothesis,presented in the paper, that only a 'pro-forum-law' bias isunambiguously consistent with economic efficiency, simply becauseit conserves the resources of the court and bar in the forumstate. I find relatively strong support for the 'pro-recovery'bias of courts, weaker support for 'pro-forum-law' bias, andreject the 'pro-resident' bias. If anything, states retainingthe rigid choice of law rules are more likely to favor theirresidents. Moreover, I reject Borchers's claim that courts donot take the modern approaches seriously. Indeed, in general,they follow Borchers's own predictions.