Restating the restatement of conflicts: approaching the legitimacy question in choice-of-law theory.

• Author: Zaremby, Justin

INTRODUCTION

In George Bernard Shaw's Man and Superman, the protagonist, the forlorn revolutionary John Tanner, wrote, "Revolutions have never lightened the burden of tyranny: they have only shifted it to another shoulder." (2) The message, presented at the turn of the century in Shaw's mournful drama, might well be applied to modern choice-of-law theory. After a century of focus on the theory of lex loci delicti promulgated by Joseph Story and Professor Joseph Beale, and reaching its codification in the First Restatement of Conflicts, (3) the conflicts "revolution" rejected this theory forcefully. (4) While traditional choice-of-law theory established location as the most important factor for determining applicable law, the choice-of-law revolutionaries, following Brainerd Currie and his successors, sought to ground choice-of-law decisions in the policy interests of states. The First Restatement, characterized as "a Prussian-like system of detailed, mechanical and rigid rules," (5) was replaced by the Second Restatement, which one scholar described as "hopelessly underdeterminative." (6)

Approaches to choice of law, at the extremes, vary between the vested rights theory of Joseph Beale and the governmental interest theory of Brainerd Currie. Both are motivated by a shared desire to find the objective standards by which judges apply law, but they do so in vastly different ways. The vested rights approach was deeply formalistic, reflecting Beale's own approach to the study of law. The interests approach of Currie and his followers--the revolutionaries who currently reign in the field--offers a realist response to Beale's formalism. Because vested rights theory grows out of the formalist tradition of law, seeking a scientific approach to discovering the true doctrines underlying our common law, and the governmental interest approach grows out of the realist rejection of formalism and its faith in the science of law, defenders of either side speak past each other instead of moving toward any common understanding. Given the opposite poles that these two camps inhabit, adherents to either view lose track of the central question of the debate: How can a judge make a legitimate choice-of-law decision? This article attempts to refocus the debate without ignoring insights gained from both fields. It attempts to find a middle ground between the rights and interest theorists, which grounds judicial legitimacy in the centrality of democracy to the American political and legal system.

In moving away from the rights theory of Beale, the interest theorists have wholly embraced governmental interest as the guiding principle in the face of more traditional territoriality. However, through their wholesale rejection of rights, the interest revolutionaries have thrown the proverbial baby out with the bath water. The choice-of-law revolution has not solved all of the problems created by vested rights, but instead has created a system that is as entrenched as its predecessor and just as blind to criticism. Moreover, by rejecting rights, they have created a system of choice-of-law that puts undue weight on the desire of legislatures to determine choice-of-law rules, instead of the desires of individual citizens. This article seeks to revitalize the importance of rights for choice-of-law theory and proposes a system whereby judges balance governmental interest with individual interest in order to overcome what I suggest is a democratic deficit in the modern choice-of-law revolution. Rather than requiring a judge to choose between rights and interests on the basis of the formalist/realist debate, it suggests that judges instead balance two different political theories. A liberal, rights-based approach to choice of law asks the judge to protect the rights of an individual from encroachment by a state and its laws. A republican approach reframes governmental interest as an expression of the general will of the state that the judge, as a functionary of the state, should uphold; the judge in that position is forced to interpret a general will that may conflict with the individual will of citizens. These two approaches to understanding the liberty interest for the citizen--one a negative liberty interest and one positive--are not easily reconcilable, but reflect the sorts of questions that judges confront, including issues of both vestedness and governmental interest. This Article ultimately suggests a middle ground between the ancien regime and the current structure of the choice-of-law revolutionaries where judges balance the democratic interests of individuals with the republican interests of their states.

In proposing this paradigm, this Article does not attempt to establish a foolproof solution to the choice-of-law dilemma. Neither judges nor individual actors will be able to look at what follows to assure themselves of a clear solution to a given conflicts problem. Solutions, after all, remain the purview of legislators who write statutes and judges who enforce them (when available). Instead, it points out the flaws of regnant theories and offers advice on what sort of questions would make those theories more vibrant. Most importantly, this Article signals the need for choice-of-law theorists to seriously examine the role of judicial discretion in resolving conflicts, a subject lacking in the current literature. Choice-of-law theory, in both its formalist and realist modes, tends to merge both descriptive and normative claims. Judges are described as acting in a given way, whether looking at vested rights or governmental interest, while they are also told to act in a particular way. This Article attempts neither description nor prescription. After all, before telling judges how they should act, the more pressing question that theorists should ask is how one judge can make a legitimate decision when choosing between the laws of two sovereign states. This Article suggests the sort of questions that choice-of-law theory, in order to gain legitimacy among practitioners in a democratic system, should consider. Ideally, the model presented here will help choice-of-law theorists move beyond the current issues in the literature to more fruitful questions about the place of both the vested rights and governmental interest traditions.

Part One of this Article surveys the historical debate between vested rights theorists and governmental interest theorists. In describing the literature in this field, this Article reflects not merely on how governmental interest theory has rejected vested rights, but acknowledges what the shift from the First to Second Restatement has sacrificed. The turn to policy justifications for applying domestic law, as opposed to territorial justifications, may have helped choice-of-law scholars escape from some of the more tiresome and poorly defended arguments of Beale and other vested rights theorists. At the same time, though, they have rejected one valuable facet of vested rights theory--its emphasis on the rights of the individual citizen to have his domestic law applied to him. The revival of this individual focus, along with insights gained from a close reading of the governmental-interest theorists, reveals the need for another interpretive lens through which to understand choice of law.

Part Two suggests that the debate between liberal and republican political theory offers such a lens. on the national level, liberalism and republicanism reflect an American concern with protecting the rights of individuals, as well as furthering a common good for a given city or state. Applying the ideals of both political models to the field of conflicts allows scholars to embrace what is useful in vested-rights theory, while also enjoying the benefits of governmental-interest theory. After elaborating on the differences between liberalism and republicanism, this Part will show how the two theories offer a cogent way of understanding the strengths and weaknesses of the First and Second Restatements.

Finally, Part Three discusses how a balancing test between liberalism and republicanism may be used by judges. (7) This balancing test is applied to a well-known case used by conflicts theorists, the married women's contracts case. This Part suggests how the application of liberalism and republicanism reveals important facts for judges to consider in making their decisions, and how the approach may pose new questions to further develop the field of conflicts. By exploring the implications of such questions, this Part suggests how a new approach may help scholars explore the question of legitimacy in the field, and perhaps further a revolution that has lost its energy.

1. FRAMING THE DEBATE: VESTED RIGHTS AND GOVERNMENTAL INTERESTS IN THEIR CONTEXT

   Beale's vested rights theory is grounded in formalism. (8) Various authors have explored the extent to which Beale believed himself to be discovering the true law that would apply at all times. (9) His reputation as a "generally unenlightened" thinker (10) is commonly shown through a poem written by Thurman Arnold that mentions his belief in the orderliness of the legal system when properly understood by scholars:

   Beale, Beale, wonderful Beale, Not even in verse can we tell how we feel, When our efforts so strenuous, To over-throw, Your reasoning tenuous, Simply won't go. For the law is a system of wheels within wheels Invented by Sayres and Thayers and Beales. (11) Beale was a favorite punching bag for realists because of his dedication to a purely conceptual approach to the law. (12)

   The essence of Beale's formalism was his belief that the law was not created by judges, as understood by the realists, but instead that judges discovered principles of law. "The decision and judgment of the court," he wrote, "determining a particular controversy ... can in no sense be regarded as in itself law, whether it can be the doom of an ancient monarch, the decision of a popular court...