Legal realism, lex fori, and the choice-of-law revolution.

• Author: Green, Michael S.

The choice-of-law revolution rejected the previously dominant view that a state has the sole power to determine how events occurring within its territory should be adjudicated by other states. The revolution is widely recognized to have been a product of legal realism. Nevertheless, an adequate understanding of this relationship has been hampered by a common misunderstanding. The prevailing view is that the revolutionaries' legal realism led them to accept a consequentialist(1) jurisprudence, in particular, a jurisprudence under which advancement of the policies of the forum state guides adjudication. Commentators then cite the revolutionaries' acceptance of this jurisprudence as the reason that the revolutionaries advocated the application of the lex fori or law of the forum (a choice-of-law principle we can call lexforism(2)) whenever the forum is interested in the application of its law. This account of the relationship between legal realism and the revolutionaries' lexforism is often presented by those, such as Lea Brilmayer and Perry Dane,(3) who offer as an alternative certain rights-based or deontological(4) theories of adjudication. Such rights-based theories of adjudication, they claim, are incompatible with the revolutionaries' lexforism.

Brilmayer's and Dane's account of the revolution is logically and historically in error. It is logically in error because, far from being essentially consequentialist, legal realism is compatible with any normative theory of adjudication, including those in which the policies of the forum are subordinated to the rights of the litigants. Clarifying this logical error helps to explain an important historical error in the account: One of the foremost revolutionaries, Walter Wheeler Cook, did not accept that lexforism follows from the showing of an interested forum. Indeed, Cook, despite his legal realism, often looked to the rights of the litigants to determine choice of law.

The account contains a second logical error: Acceptance of rights-based jurisprudence need not lead to outright rejection of lexforism. Even if one accepts such jurisprudence, rights of the sort that are incompatible with lexforism often can be absent. In such cases, consequentialist considerations, such as those of state policy advancement, can still play a role in choice of law. Clarifying this second logical error is crucial to making sense of the work of another important revolutionary, Brainerd Currie. Currie's advocation of lexforism in what are known as true conflicts has lead critics to attribute to him a consequentialist jurisprudence of state policy advancement. Contrary to such interpretations, Currie's approach to choice of law owes much to rights-based jurisprudence. Currie advocated lexforism in true conflicts solely because he thought that in such cases rights incompatible with lexforism did not exist.

While Currie's lexforism is not the only possible resolution to true conflicts, any response to such conflicts must go beyond those forms of rights-based jurisprudence advocated by Brilmayer and Dane. Dane's attempt to use such rights-based jurisprudence to resolve true conflicts fails because it depends upon an implausible account of the nature of legal norms. Although consequentialist responses to true conflicts may be dissatisfying, such responses are one of the few options left to a court.

1. LEGAL REALISM IS COMPATIBLE WITH RIGHTS-BASED JURISPRUDENCE--COOK

   1. Rights-Based Critiques of the Choice-of-Law Revolution

      From around 1900 to 1950, vested rights theory guided choice of law in the United States.(5) The theory had two main elements. First, a state had the sole power to create legal norms governing actions within its territory.(6) Second, if it exercised this power, violations of those norms created vested rights, which every other state taking jurisdiction of the case was bound to enforce.(7) This second element is sometimes known as the obligatio theory.(8)

      The choice-of-law revolution, which overthrew vested rights theory, rejected the vested rights theorists' rigid territorialism.(9) But the revolutionaries also rejected the obligatio theory. They argued that when a court employs foreign law, it does not do so because it is bound to recognize a foreign legal right, but rather because the application of foreign law is suggested by domestic policies.(10) Indeed, the most prominent critic of the obligatio theory, Walter Wheeler Cook, insisted that because any employment of foreign law has fully local motivations, a forum cannot enforce a foreign legal right at all.(11) The employment of foreign law is really the creation of a domestic legal right similar to the legal right created by foreign courts.(12)

      Cook's "local law theory" follows from his acceptance of the legal realist view that claims about law and legal rights are descriptions and predictions of the behavior of judicial authorities.(13) Because such claims are merely descriptive, no normative conclusions follow. In particular, such claims cannot tell a judge how she ought to adjudicate. Thus, Cook denied that the recognition of a foreign right--a merely descriptive claim--could ever normatively compel a judge to employ foreign law.(14)

      Brilmayer and Dane have interpreted the revolutionaries' rejection of the obligatio theory as the expression of an underlying consequentialist jurisprudence, in particular, a jurisprudence that recommends adjudication that advances the policies of the adjudicator's state.(15) These critics argue that because the revolutionaries accepted such a jurisprudence, they advocated lexforism in cases of true conflicts, that is, cases in which both the forum and another state have an interest in furthering the policies behind their competing laws and no choice of law will satisfy both states' policies.(16) A court may apply foreign law only when the forum lacks an interest in the application of its own law.

      Brilmayer and Dane arrive at this reading of the revolution in part through the example of the revolution's most influential proponent, Brainerd Currie.(17) Currie appears to be an example of someone who accepted legal realism and the local law theory,(18) subscribed to a consequentialist jurisprudence of state policy advancement, and advocated lexforism in true conflicts. Currie's approach to choice of law involves examining potentially conflicting laws in order to determine the policies that stand behind each.(19) If such an examination reveals that only one state has a legitimate interest in the application of its policy, there is a false conflict and a court should apply the law of the interested state.(20) On the other hand, if both states have a legitimate interest, a court should apply the law of the forum.(21) To weigh legitimate interests would be to assume inappropriately a "political function of a very high order."(22)

      In opposition to the revolutionaries' ostensibly consequentialist jurisprudence, these recent critics have offered rights-based theories of adjudication, which restrict a court's freedom to employ forum law. For example, Lea Brilmayer has argued that adjudication is limited by negative rights of the litigants against unjust coercion by the state.(23) Unlike vested rights, such negative rights do not determine but merely constrain choice of law; although certain laws may not be applied, a number of options can remain.(24) Nevertheless, these negative rights sometimes will override lexforism.

      Perry Dane has argued for the stronger thesis that adjudication should recognize and enforce the norms to which the litigants were expected to conform their behavior at the time of the events being adjudicated.(25) These norms give rise to legal rights of the litigants against each other rather than merely against the state, and these rights do not just constrain choice of law but, ideally, provide a unique answer to every choice-of-law problem. This theory of adjudication is similar to vested rights theory denuded of its objectionable territorialism.

      Dane does not flesh out what choice-of-law principles follow from his theory. He does argue, however, that because adjudication must recognize and enforce forum-independent rights, any choice-of-law principle should be nonrelativist, that is, any forum applying the same principle to the same set of facts should come to the same choice of law. In particular, choice of law must completely reject lexforism.(26)

      Dane finds his theory of adjudication, which he calls norm-based jurisprudence,(27) superior to that of the revolutionaries because it reflects the fundamental jurisprudential notion that a right can exist independently of its enforcement. According to Dane, because the revolutionaries' legal realism led them to see rights as existing only when and as enforced, they erroneously tied rights to fora. Norm-based jurisprudence rejects this idea:

      [I]f the defining function of courts is to enforce legal rights that exist, in some sense, apart from their enforcement, any court committed to that view cannot hold that the analysis of substantive legal rights depends on the manner in which they are sought to be enforced or, more specifically, on the forum in which an adjudication happens to be brought.(28)

      Dane argues further that because the revolutionaries tied rights to fora, they believed adjudication should advance the policies of the forum. This, too, norm-based jurisprudence rejects:

      [I]f the (direct) function of any particular adjudication is not to further policies of one kind or another, but rather to judge human beings on the basis of norms to which they were expected to adhere, then a court's primary responsibility cannot be to represent its own sovereign's interests, or anybody else's.(29)

      Thus, Dane argues, norm-based jurisprudence must reject lexforism. Asserting that different laws may apply as one moves from forum to forum demonstrates insensitivity to the norms that originally bound the litigants'...