The American Choice-of-Law Revolution in the Courts: Today and Tomorrow.

• Author: Weinberg, Louise
• Position: Brief Article - Book Review

THE AMERICAN CHOICE-OF-LAW REVOLUTION IN THE COURTS: TODAY AND TOMORROW. By Symeon C. Symeonides. Leiden/Boston: Martinus Nuhoff Publishers. Forthcoming 2005. (1)

INTRODUCTION

Fifty years ago, at the height of modernism in all things, there was a great revolution in American choice-of-law theory. You cannot understand what is going on in the field of conflict of laws today without coming to grips with this central fact. With this revolution, the old formalistic way of choosing law was dethroned, and has occupied a humble position on the sidelines ever since. Yet there has been no lasting peace. The American conflicts revolution is still happening, and poor results are still frustrating good intentions.

Now comes Dean Symeon Symeonides, (2) the author of the choice-of-law code of Louisiana, (3) with an intriguing monograph, The American Choice-of-Law Revolution in the Courts. There is nothing in the field quite like it.

Symeonides has given us a brilliant contribution to legal theory, an impressive, original, one-of-a-kind book, in which a good deal of valuable empirical research is the subject of thoughtful analysis, and in which the reader is offered, and sees in action, an original way of thinking about how to fashion rules for choosing law.

No one else could have written this book. Symeonides speaks to us personally on every page. Nor could it have been written by anyone without Symeonides' intimate familiarity with current American conflicts cases. Over a span of seventeen years he has given generously of his time, as he still does, to the service, at once humble and invaluable, of producing annual surveys of conflicts cases in American courts. (4) It was in this steady mining that he struck the mother-lode of material that enriches this book. Symeonides has come through years of work on his codifications of state conflicts rules, and through years of commentary on American decisions in the lower courts, and has emerged confident in his own outlook: conservative, traditional, deferent to the concerns of other countries and the needs of defendants, yet also humane about the needs of plaintiffs; writing with conviction, yet reasonable in argument. To all of this Dean Symeonides brings a formidable erudition. He is enviably conversant with emerging European as well as American theory, debate, problems, attempted solutions--and he reads his foreign sources in the original languages. But if The American Conflicts Revolution is a very personal book, often magnetic, a page-turner, it is because it is the honest record of an inner struggle, the culminating and central work of Symeonides' life.

In Part I below I set out an intellectual history of modern conflicts theory and the controversies still plaguing it. This also serves to introduce the reader to the power of modern choice-of-law analysis. In Part II I take a brief look at the politics of the controversy. I note, in Part III, a recent empirical turn in the literature, of which Symeonides' work is a superior example. In Part IV, using interest-analytic methods, I begin to dig into Symeonides' treatment of irrationality in choices of law. I consider the advisability, in Part V, of a return to the law of the forum for intractable cases, and, in Part VI, Symeonides' view that forum law, and other features of modern methods, can disserve the higher values of the law. Here I evaluate Symeonides' analysis of a recent products case, Kelly v. Ford Motor Co. In Part VII, I discuss Symeonides' reluctant subordination of the ideal of substantive justice to the ideal of neutrality, which he holds in highest esteem, and in Part VIII I argue that neutrality is a false value in the context in which Symeonides struggles to maintain it. These interesting differences in viewpoint do not, however, lessen my admiration for this engrossing new book.

1. AN INTELLECTUAL HISTORY

   1. The American Legal Realists

      We can trace the intellectual history of the American conflicts revolution along four overlapping tracks. The opening salvo was fired in academia, when American legal realist writers of the 1920s and 1930s began aiming some of their most penetrating critiques at the field of conflict of laws. The realists deplored the sort of mechanical, formalistic legal methods of which the First Restatement of 1934 would be the embarrassing embodiment. (5) The realists tore the polite veil of disinterestedness from the judicial process. They made us see that, disingenuously or deludedly, judges only professed to be complying with the command of inexorable bright-line rules. And choice-of-law rules seemed very bright-line indeed: "The law of the place of injury governs a tort." "The law of the place of contracting governs a contract." The American legal realists revealed to us that behind the curtain there was no magical wizard, no "mystic over-law," (6) no rules cut in stone, but only a fallible human being--a judge trying to do the right thing. Inevitably, judges were manipulating the seemingly fixed rules to produce desired results, and in this way obscuring to themselves and others the "inarticulate major premises" of their decisions. (7) Pre-realist commentators would (rightly) praise as a sound application of law a result they deemed just, and condemn one they deemed unjust; but in so doing they were replicating the hidden thinking that was deciding the cases.

      Probably the most influential among the American legal realists working with the example of choice-of-law method was Walter Wheeler Cook. (8) Cook argued that, whatever law a court said it was choosing, however much a court seemed to be subordinating its own law, a court always, in fact, applied its own local law and policy. Otherwise it would not have chosen the law that it did choose. Cook saw that a departure from local law was as much an expression of actual local policy as an application of local law. He saw that a departure from the law of the forum on ostensible choice-of-law grounds is really a change in the forum's substantive policy. He saw how the change becomes apparent to the bench and bar in later cases, as lawyers begin to argue that the supposed law of the forum has become an inaccurate reflection of true forum policy--as evidenced by the forum's recent departure from its own law. This was Cook's "local law" theory. (9)

      Cook came to such thinking by looking beyond the lifeless abstractions of the traditional choice-of-law method to its results. He saw that legal formalisms, unless manipulated instrumentally, are all too likely to produce arbitrary and irrational decisions. The more principled the application, the more arbitrary the result. Cook and the other American legal realists disparaged the alleged virtues of mechanical jurisprudence--neutrality, predictability, uniformity. Their concern, rather, was with the flesh-and-blood men and women for whom too often the casualty of abstraction is justice.

   2. The Supreme Court

      We have to look to the Supreme Court for the second strand in this intellectual history. In a series of otherwise uninteresting cases in the 1930s, the Court began to test choices of law as it does today, under the Due Process Clause. The question for the Court was whether a particular choice of law was so arbitrary and irrational as to deprive the parties of the process that is due. In the now-classic Home Insurance Co. v. Dick, the Court held in 1930, in an opinion by Justice Brandeis, that the law of a state without any relevant connection with a case could not rationally, and therefore could not constitutionally, govern that case. (10) To exercise lawmaking power, a state should have some nexus, some physical contact, with the case its law is supposed to govern.

      As this idea developed, the Court began to see that a mere physical contact, by itself, might not be sufficient. Rather, the fact of a state's physical contact with a case was important only because it lay a basis for a more salient question: Did the state, by virtue of its physical contact with a case, have a rational basis for the application of its law? In other words, was the contact significant, for purposes of establishing constitutional power? Might the state's physical contact with a case reasonably be thought to give rise to some legitimate interest in governing it? The place of injury seemed a significant contact in a tort case. The place where the lawyers resided did not. (11)

      Of course there are at least two putatively concerned states in every conflicts case. The concern of each is suggested by some physical contact between the case and the state. This being so, the Supreme Court began to see that both states might have constitutional power. For example, the law chosen in a multistate case of tort, when there was a contractual relation between the parties, could be either the law of the place of injury or the law of the place of contracting--as the Court specifically held, by Justice Stone, in 1939. (12) The foundation for this insight had been laid in an earlier opinion, also by Justice Stone, (13) when, in 1935, the Supreme Court decided the watershed case of Alaska Packers v. Industrial Accident Commission. (14) In Alaska Packers, the Court began the long process of weaning the bar from its conviction (still an article of faith with some lawyers today) that in a two-state case, American courts are required by the Full Faith and Credit Clause to defer to the law of the other state. In fact, there is no obligation of full faith and credit to a sister state's laws--as opposed to a sister state's judgments (15)--and in Alaska Packers Justice Stone was at some pains to explain that there could be no such obligation. If the obligation of full faith and credit attached to laws, we would have what Stone called an "absurd" result. In cases in which the laws of two states were in conflict, the forum would have to apply the laws of the other state, but would be disabled from applying its own. (16) Perhaps Stone saw...