Daniel Klerman, of the University of Southern California Law School, has a new paper titled “Jurisdiction, Choice of Law and Property” up on SSRN. The piece looks at international choice of law generally, but he argues that the situs rule produces bad outcomes with respect to stolen art disputes. Instead, he argues the lex originis rule produces better outcomes. From the abstract:
Jurisdiction and choice of law in property disputes has been remarkably stable. The situs rule, which requires adjudication where the property is located and application of that state’s law, remains the norm in most of the world. This article is the first to apply modern economic analysis to choice of law and jurisdiction in property disputes. It largely confirms the wisdom of the situs rule, but suggests some situations where other rules may be superior. For example, in disputes about stolen art, the state where the work was last undisputedly owned may be both the most efficient forum and the best source of applicable law.