The American Choice-of-Law Revolution in the Courts: Past, Present and Future.

• Author: Levin, Hillel Y.
• Position: Book review

THE AMERICAN CHOICE-OF-LAW REVOLUTION: PAST, PRESENT AND FUTURE. By Symeon C. Symeonides. Martinus Nijhoff Publishers, 2006. 478 pp. $182.00

INTRODUCTION I. THE REVOLUTION II. HIDDEN PATTERNS TODAY AND A RETURN TO RULISM TOMORROW? III. THE REST OF THE REVOLUTION'S STORY A. The Missing Cases B. The Missing Perspective CONCLUSION INTRODUCTION

Virtually everyone who has engaged in choice-of-law scholarship has had unflattering things said about him or her, and every scholar's favorite methodology has come under attack. Given the reputation of the First Restatement of Conflicts of Laws, (1) it should come as little surprise that Joseph Beale, its drafter, "has been the target of ridicule by practically every conflicts writer in the last four decades," (2) or that the First Restatement itself "has been the favorite punching bag of every conflicts teacher." (3) But the scholars who succeeded Beale and pioneered the modern approaches have fared no better, and neither have their theories. William Prosser memorably referred to conflicts scholars as "learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon." (4) Prosser's assessment is charitable compared to that of Lea Brillmayer, who has described them as "a wild-eyed community of intellectual zealots." (5) Meanwhile, the modern doctrinal approaches have yielded "gibberish" (6) and "confused and misguided thinking." (7) In short, modern conflicts theory and doctrine is a mess--a "debacle," according to one scholar (8)--and there is no real consensus on how to clean it up.

It is time for a new treatment of conflicts, one that does not approach it either through high-minded theory or as a set of convoluted law school exam fact patterns. What the field really needs is empirical inquiry: what has the revolution in choice of law wrought, and what can we learn from that? (9)

Intrepid researchers have undertaken this task in fits and starts over the past fifteen years or so, (10) and the conflicts giant Dean Symeon Symeonides has been at the forefront of the project. (11) His highly anticipated and ambitious new book, The American Choice-of-Law Revolution: Past, Present and Future, is the pinnacle of his efforts and aims to be the authoritative word on the impact of the revolution. First delivered as a series of lectures at The Hague Academy of International Law in 2002 and now widely available for the first time, it should be required reading for anyone engaging in conflicts scholarship.

At its best, Revolution offers the finest, most rigorous account of conflicts doctrine as it functions in the courts, as well as a penetrating and thoughtful analysis on how the doctrine should evolve. The overarching normative point, based on thorough empirical analysis, is that the American conflicts experiment has moved radically from too rigid and arbitrary "rules" to too flexible "approaches" (pp. 423-37). Symeonides argues that the modern day flexibility is far preferable to the old system's rigidity, (12) but he contends that it is time to find a middle ground, one that provides firmer guidance for judges and lawyers while still respecting the insights of the choice-of-law revolution and maintaining its flexibility (p. 425).

Unfortunately, though it pushes the field in the right direction, Symeonides's account does not go far enough. Putting aside the question of whether balance between rigidity and flexibility can ever be achieved, (13) Revolution defines its terms too narrowly. It is simply not enough to develop a view of the revolution by reading only published cases, which has been the orthodox approach since the start of the revolution, but which reflects and encourages an unhealthy and unproductive disengagement from legal practice.

Instead, the full impact of the choice-of-law revolution can only be judged by careful analysis of the view from the bottom, from the standpoint of busy trial court judges, lawyers, litigants, and potential litigants. And that story would in all likelihood be quite different from the story Symeonides tells. Indeed, if we were to engage practice in a serious way, we may find that the modern approaches, instead of introducing fairness and rationality into the doctrine, have introduced a new set of costs and a different kind of arbitrariness. Whatever the gains in rationality brought by the revolution, they may be trumped by the price of uncertainty.

Thus, Revolution is exemplary within both meanings of the word: (14) it is the best example of conflicts scholarship, but it also demonstrates by example what is missing from the field, namely serious consideration of the practical consequences of legal theory.

This Book Review proceeds as follows. In Part I, I briefly review the history of the revolution. Here, my goals are limited; I aim only to put Symeonides's project into historical focus and to provide a primer for the uninitiated. Part II reviews Revolution's structure, methodologies, and findings, and considers its contributions to conflicts scholarship more broadly.

Part III is the core of my critique. In it, I discuss Revolution's primary shortcomings and argue that, as a result of its limitations, Revolution is simply too removed from the practicalities of actual litigation and too theoretical to serve as a touchstone for the development of the law. I first cast doubt on Symeonides's empirical findings because of his flawed data set and methodology. I also argue that by ignoring the impact of the revolution on the process of litigation, Symeonides effectively captures only part of it--and perhaps a less important part, at that. Finally, I conclude by briefly discussing how scholarship in the field should develop in order to respond to these weaknesses and by laying out a course of analysis and research through which scholarship and practice can meaningfully reengage one another.

1. THE REVOLUTION

   The past fifty years have witnessed a dramatic change in American conflicts scholarship and doctrine (pp. 9-121), (15) particularly in the tort context (p. 123).

   Once, in what have become known as the bad old days, courts followed the First Restatement when deciding choice-of-law issues (pp. 10-11). The First Restatement provided fairly strict rules about which state's law should govern any case (id.). (16) In the tort context, with some important exceptions, the substantive law of the jurisdiction in which an injury took place governed the lawsuit. (17) For example, if a resident of California collided with a resident of New York on a freeway in Michigan, Michigan law would apply, and no further analysis would be necessary.

   Beginning in as early as the 1920s, legal realists took aim at the First Restatement's rigidity, formalism, and arbitrariness (pp. 11-35). They argued that sometimes the state in which an injury occurs has no interest in a lawsuit, and some other state has manifestly greater interest (pp. 12-13). They claimed, in classic realist terms, that the formalistic rules of the First Restatement were irrational and unjust (pp. 12-24). (18) And they maintained that the apparently strict rules of the First Restatement actually contained so many escape hatches that judges could effectively do whatever they wanted (p. 26), leading to arbitrary results. Although these views gained little traction in courts at first, and although the doctrinal prescriptions of these early critics have never enjoyed much support (pp. 11-13), their driving concerns about rationality, justice, and flexibility set the stage for the revolution to come.

   In the 1960s, Professor Brainerd Currie eloquently expanded the critique and provided a new framework for approaching choice-of-law questions (pp. 13-22). His central innovation, the state interest analysis, became the basis for virtually every proposed doctrine that followed (pp. 22-24). Under his approach, for example, if State Z has laws that protect manufacturers, then it has a strong interest in having its law applied to manufacturers that operate within its borders, whereas it has no interest in protecting manufacturers that operate in other states. Therefore, if an injury occurs in State Z, an out-of-state manufacturer should not automatically be entitled to the application and protections of State Z's law.

   Currie and his followers maintained that a flexible, case-by-case approach to choice-of-law problems that focused on state interests would be the most rational and fair. Although Currie's specific doctrinal recommendations have not been implemented in very many jurisdictions, his vision continues to dominate the academic debate today (pp. 22-24). Indeed, when we refer to the "choice-of-law revolution" we speak primarily of the introduction of state interest analysis and the rejection of "rules" in favor of "approaches."

   Predictably, scholars began to debate Currie's approach in earnest, with each offering another twist, a new approach, or a different analysis (pp. 24-25). Not so predictably, this academic discourse actually had an almost immediate impact on judicial doctrine (pp. 37-62). Indeed, perhaps more so...