Seth Yandrofski

1. Seth Yandrofski Modern Choice of Law Biases: Judge Biased or Method Biased

2. Biases • Some scholars today believe that the least dispositive factor in predicting the choice of law for a case is the methodology followed by the court. Whytock 730 • Pro-Forum • Pro-domiciliary • Pro-Recovery

3. Borcher’s • None of the modern approaches differ significantly from each other. • Judges do not take the approaches seriously. • Studied 802 cases and coded them for pro-forum, pro-recovery, pro, domiciliary, and for the Methodology used.

4. Borcher’s Predictions

5. Borcher’s Findings • Actual findings based on Borcher’s study. • No significant difference in any of the modern approaches, all are biased to the same degree. • Only the first restatement is different.

6. Borcher’s Findings

7. Thiel’s Reanalysis

8. Thiel’s Findings • Thiel in his paper added two new variables (lawyers per capita and Canan and Baum’s innovation index) and reanalyzed Borchers data using a regression analysis. The relationship to the first restatement. For example, for every one case that comes out as pro-forum in the first restatement will have about one come out that way in the second restatement, 6 in interest analysis, and 4 in Leflar. • These findings are consistent with Borchers predictions.

9. Symeonides • Common Domicile Cases • Pattern 1- Cases in which the law of the common domicile favors the plaintiff (while the law of the state of the tort favors the defendant); • Pattern 2- Cases in which the law of the common domicile favors the defendant (while the law of the state of the tort favors the plaintiff); • True Conflict Cases • Pattern 3- Cases in which the conduct and the injury occur in the defendant’s home state, and in which that state’s law favors the defendant (while the law of the plaintiff’s home state favors the plaintiff); • Pattern 4- Cases in which the conduct and the injury occur in the plaintiff’s home state, and in which that state’s law favors the plaintiff (while the law of the defendant’s home state favors the defendant)

10. Symeonides • False Conflict Cases • Pattern 6- Cases in which the conduct and the injury occur in the defendant’s home state, and in which that state’s law favors the plaintiff (while the law of the defendant’s home state favors the defendant); • Pattern 5- Cass in which the conduct and the injury occur in the plaintiff’s home state, and which that state’s law favors the defendant (while the law of the defendant’s home state favors the plaintiff); • Split Domicile Cross Border Cases • The law of each home state favors the domiciliary of that state. • The law of each home state favors the domiciliary of the other state.

11. Symeonides

12. My Thoughts • Pattern 1 exhibits exact characteristics of what should be found in a common domicile case. • Pattern 2 does show bias with regards to ProP and Forum while diminishes domiciliary law • 1 and 2 were the most interesting because we can predict the outcome with high certainty due to commonalities in the modern approaches with respect to common domicile cases

13. Predictability • If you know that the pattern of the case fits into 1, 6, 4, or 7 can possibly accurately predict the outcome of the case. • Estimates are similar enough to actual to indicate judicial discretion may be less indicative than thought. • If the expected= the actual then how can you determine judge bias?

14. Future • Code the 802 Borchers cases with each of the Symeonidies patterns and run another logistic regression to get more accurate data. • Code the cases for what would be the expected outcome to give a frame of reference for the numbers. • To determine if Judicial Bias or Method Bias.