A Real World Prospective on Choice of Law - Robert A. Sedler

• Publication year: 1997

A Real World Perspective On Choice Of Lawby Robert A. Sedler^*

I. Introduction

I have been invited to respond to a symposium on "Choice of Law: How It Ought to Be."¹ My response will be in terms of "Choice of Law: How It Is." That is, as the title of this Article indicates, I hope to bring a real world perspective on choice of law to the issues that have been discussed in the symposium. And I believe that a perspective on how choice of law operates in the real world—how choice of law is—may furnish considerable guidance on the question of how choice of law ought to be.

My real world perspective on choice of law contains three components. The first component I will call interest analysis and judicial method. This component represents my view as to how choice of law ought to be, and as I believe I have demonstrated in my numerous writings on choice of law, in practice, this is pretty much how choice of law is. The second component of my real world perspective on choice of law arises from the fact that I also teach and write in the area of Constitutional Law. Professor Felix has noted that Conflicts teachers who also teach Constitutional Law should be treating the subject of the constitutional issues as they arise in the Conflicts course in a broader context.² I agree with Professor Felix on this score. It is precisely because I also teach Constitutional Law, that I approach constitutional issues in this broader context, which I call constitutional generalism.³ The third component of my real world perspective on choice of law comes from my experience as a litigating lawyer and "conflicts consultant." Although I have litigated extensively over the years in my other field of Constitutional Law, in the last decade or so, I have found myself litigating a number of conflicts cases in Michigan. I have also consulted with practicing lawyers on their conflicts cases. Thus, I have had some opportunity to observe "the conflict of laws in practice," and this has given me some idea of how courts deal with conflicts issues in actual litigation.

In this writing, I will discuss in detail the three components of my real world perspective on choice of law. In the course of this discussion, I will bring in all of the cases commented upon by the distinguished panelists in the roundtable discussion, and examine them from this real world perspective. When approached from this perspective, I submit that these cases are not at all difficult to resolve, and that in the real world, choice of law is not nearly as complicated as academic analysis of the choice of law process, such as that contained in the roundtable discussion, frequently indicates.

II. Interest Analysis and Judicial Method

In my many years of teaching and writing on the Conflict of Laws, I have focused on essentially two themes. On the one hand, I am a strong proponent of interest analysis as the preferred approach to choice of law. I maintain that interest analysis is the preferred approach because it provides functionally sound and fair solutions to the choice of law issues arising in actual cases. Interest analysis simplifies the choice of law process by focusing on what the courts consider to be the most rational considerations in making choice of law decisions: the policies reflected in a state's rule of substantive law, and a state's interest in applying its law in order to implement those policies in a particular case. In other words, despite some disagreement on peripheral matters, I am an unabashed follower of Brainerd Currie's interest analysis. I believe that Brainerd Currie has not only revolutionized choice of law, but has developed an approach to choice of law that will endure "now and forever," because it is the most rational way for courts to resolve the myriad of choice of law issues that arise in practice. This includes Currie's forum preference solution to the "true conflict," which is a point of departure for some of Currie's other followers. I have defended Currie's interest analysis approach against the host of critics, old and new,⁴ and have reformulated Currie's interest analysis approach so as to simplify it for use by the courts in the day-to-day process of deciding actual conflicts cases.⁵ I have further demonstrated that all of the courts that have abandoned the traditional approach to choice of law generally reach results, at least in torts cases, that are in practice consistent with the results that would be reached under Currie's interest analysis approach—including forum preference in the "true conflict"— regardless of which "modern" approach to choice of law they are purportedly following.⁶

On the other hand, I have also emphasized judicial method in conflicts cases. I have distinguished between the function of a court in a conflicts case and the use of the interest analysis approach in performing that function. I relate the function of a court in a conflicts case to what I see to be the general purpose of conflicts law: providing functionally sound and fair solutions for the relatively few cases that arise in practice in which a court has to make a choice of law decision. Therefore, the court's focus in a conflicts case should be on the precise choice of law issue presented for decision in the case before it, and the court's objective should be to resolve that issue in a way that will produce a functionally sound and fair result.

A court has to make a choice of law decision in an actual case only (1) when the case is connected with more than one state, and more importantly, (2) when the laws of the involved states differ on the point in issue. These cases are relatively few in number for two reasons. First, despite the fact that we live in a multistate (and increasingly multinational) world, most transactions, and thus, most cases that arise in practice, are connected with only one state. Most automobile accident cases, for example, involve two drivers who had the accident in their home state, and most contract cases involve two contracting parties who enter into a contract that is to be performed in their home state. In practice, then, the conflicts case is still the exceptional one.

Second, even when a case is connected with more than one state, most of the time the laws of the involved states will not differ on the point in issue. I am fond of saying that the law is alike except when it is different. With few exceptions, conflicts cases arising in American state courts are interstate cases.⁷ And while the conflict in some cases may be due to differing common law rules,⁸ whenever a conflict of laws exists between two American states, it is generally because one state has enacted a statute that changes the common law rule remaining in force in the other state,⁹ or in an area regulated by statute, such as wrongful death, where the statutes of the involved states differ in particular respects.¹⁰ Even when a case is connected with more than one state, in practice, the case usually will not present a choice of law issue. For these reasons, in relation to the total number of cases that arise in practice, there will simply be relatively few conflicts cases. Moreover, only a small portion of the conflicts cases that do arise in practice are actually litigated to conclusion—after all, the overwhelming number of all lawsuits are settled—and an even smaller portion make it to the appellate courts. This may be why those cases that do make it to the appellate courts are seemingly complicated and often result in lengthy opinions that are grist for the academic mill. But conflicts cases make up an infinitesimal part of the business of the courts, something that academic commentators might bear in mind when they discuss how choice of law ought to be.

Some thirty years ago, I analyzed the choice of law process in terms of "judicial method and the policy-centered conflict of laws."¹¹ I maintained that, in accordance with the common law tradition, courts should apply judicial method to the resolution of conflicts problems as they apply it to other areas of law.¹² Under judicial method, a court should render the choice of law decision with reference to the fact-law pattern presented in the particular case. The decision in that case would serve as a precedent for decisions in other cases presenting the same fact-law pattern, and the decision's rationale would serve as a guide to the resolution of future cases presenting different fact-law patterns. In time, depending on the number and kinds of cases that arose in each state, a body of conflicts law would emerge in that state through the normal workings of binding precedent and stare decisis.¹³

Furthermore, the criteria for the choice of law decision should be based upon considerations of policy and fairness to the parties. The rationale here is that the criteria for the choice of law decision—the decision to displace the forum's own law and to look to the law of another state, in whole or in part, for the rule of decision in the ease—should relate to the underlying justification for such displacement. Under the "criteria-justification" rationale, the forum's law should be displaced only when either policy considerations, such as recognition of the legitimate interest of another state in having its law applied, or concerns for fairness, such as protecting the reasonable expectations of the parties, dictate the displacement of the forum's law in favor of the law of another state. In the absence of such considerations, the law of the forum should apply, just as it would in a domestic case.

Thus, under a judicial method and policy-centered conflict of laws approach, the choice of law process would operate in accordance with the following premises: (1) the basic law is the law of the forum, which will be applied in the absence of valid reasons for its displacement;¹⁴ (2) the choice of law decision will be made with reference to the fact-law pattern presented in the particular case; and (3) the choice of law...