The myth of choice of law: rethinking conflicts.

Author:Roosevelt, Kermit, III

    Choice of law is a mess. That much has become a truism. It is a "dismal swamp,"(1) a morass of confusion, a body of doctrine "killed by a realism intended to save it,"(2) and now "universally said to be a disaster."(3) One way to demonstrate its tribulations would be to look at the academic dissensus and the hopelessly underdeterminative Restatement (Second) of Conflict of Laws.(4) Another would be to examine the Supreme Court's abdication of the task of articulating constitutional constraints on state choice-of-law rules.(5) This article will do both. At the outset, though, I want to suggest that one need look no further than the nomenclature of the subject. I do not mean the arcane terminology -- depecage, renvoi, retorsion, false conflicts, comparative impairment, and unprovided-for cases -- that falls liltingly from the tongues of conflicts scholars and crushes listeners into bemusement or horror. I claim instead that the conceptual difficulties of this field can be discerned at the broadest level of generality, in the dual names of the subject itself: "Choice of Law" and "Conflict of Laws."(6)

    The mere existence of multiple monikers should not surprise. Areas of legal study often go by more than one name. The class called "Federal Jurisdiction" at one law school might be "Federal Courts" at another; the same is true for "Corporations" and "Business Organizations." Sometimes these names are synonyms; other times the relation is obvious enough to need no explanation. Federal courts exercise federal jurisdiction, and the study of one is the study of the other. Conflicts nomenclature is less transparent. An ordinary speaker of English might be puzzled to learn that "Choice of Law" and "Conflict of Laws" denote the same area. When laws conflict, one might think, the question is not which law should be chosen but rather which law prevails.(7)

    Legal training teaches us otherwise. When laws conflict, we learn, courts decide which law to apply. There is almost never a unique "right" answer to the question. More precisely, there is no right answer that can be articulated without adopting what Lea Brilmayer calls the "internal perspective":(8) the perspective of a particular forum state. From the subjective perspective of a particular forum, there may be a determinate answer, given by the choice-of-law rules of that state. But different states will give different answers about the same set of facts. If a case has contacts with a number of different jurisdictions, each may apply its own law if the case comes to its courts.(9) Thus the answer to the question "what law governs this case?"(10) will often vary depending on the forum in which the suit is brought.

    This result may seem natural if we suppose that choice-of-law rules simply compose part of a state's substantive law.(11) Substantive law differs from state to state, and states will reach different answers about the legal consequences of the same facts. Thus it is not surprising that a constellation of facts entitling the victim of a car accident to recover under the tort law of a state employing a negligence standard will not allow recovery under the gross negligence standard of another state. Similarly, one might think, it is not surprising that one state might conclude that the appropriate law is the law of the state where the accident took place, while another might look to the law of the victim's domicile.(12)

    This inconsistency arises from, essentially, Brilmayer's "internal perspective." One of the major goals of this article is to suggest that this way of viewing the choice-of-law problem is mistaken -- not because the alternative that Brilmayer mentions, the "external perspective," is correct,(13) but because the dichotomy itself is false and the internal perspective fails on its own terms. In fact, I will argue, conceiving of choice-of-law rules as substantive domestic law does not legitimize the variance of results across forums. It merely masks the illegitimacy, hiding the conflict between laws behind the veil of choice of law, and the veil does not stand up to analysis.

    To start seeing this, take a step back. Return to the purely domestic context and imagine a plaintiff who comes to court alleging that a wrong has been committed against him. He claims that some law -- here, let us assume local tort law -- gives him a right to relief. The court may disagree with this claim. It may be that the law gives him no right on these facts, or that the law provides the defendant with a defense that precludes liability. Either of these determinations is an appropriate judicial decision. But what if the court simply refuses to consider his tort claim because, it says, contract law governs the case? This should seem odd.(14) The plaintiff has asserted a right, and surely the court must either recognize that right or refuse to recognize it. Either he has stated a claim or he has not. To avoid this dichotomy by invoking a different law seems at best an oblique rejection of the plaintiff's claim, at worst a decision based on something other than whether he has an enforceable right.(15) It seems, in short, that the court has made a choice, not resolved a conflict.(16)

    The substitution of choice for conflict, I will argue, is the fundamental error of conflicts jurisprudence.(17) It is an attempt to avoid difficult questions that succeeds only in resolving them sub rosa, and poorly. Conflicts between rights are a common feature of lawsuits, and in most circumstances, the legal system deals with them as conflicts: courts look to rules specifying which right shall prevail, and then express their conclusions in such terms.(18) In cases where the conflicting rights originate from different states, however, a different description is employed. Courts speak not of deciding which right prevails but of choosing which law applies to the case. This resort to choice-of-law rhetoric is peculiar for two reasons. First, it is unnecessary. Multistate cases can be described and resolved perfectly easily within the vocabulary of conflicts.(19) Second, it is descriptively inaccurate. Interest analysis (the choice-of-law methodology I will consider in the greatest detail) simply does not select the law that applies to a case.(20) The rhetoric of choice persists in part as a conceptual hangover from the early days of conflicts theory,(21) but it also continues to allure because it makes less apparent the conflicts that have proven too hard to resolve.(22) Indeed, the Supreme Court swiftly backed away from its initial bold interventions into state conflicts practices; more recently it seems to have given up entirely.(23) Consequently, there is a temptation to deny problems we cannot solve, by framing the issue as one of choice.

    This article aims to show that things are not as bad as all that. Interstate conflicts are a chief concern of the Constitution, and the Constitution will allow us to deal with them. Conflicts theory has failed to locate external constraints on state law and has actually urged states to adopt regimes that are blatantly discriminatory -- regimes that, if not explained by parochialism, are in fact self-contradictory.(24) Judicious use of garden-variety antidiscrimination principles embedded in the Full Faith and Credit and the Privileges and Immunities Clauses will prevent such favoritism. These constitutional principles do not resolve conflicts by their own force they do not dictate unique solutions -- but they constrain the states' resolutions in ways that produce a coherent jurisprudence of conflicts.(25) In order to see how the Constitution works, we need a theory that frames the issue in terms of conflict, not in terms of choice.

    Part II of the article sets the stage for that theory by briefly recounting the history of conflicts scholarship and offering a word on methods and objectives in the conflict of laws. Part III extracts appropriate building blocks from the rubble of previous theoretical constructs; it then puts the blocks together, demonstrating in outline what the theory should look like. Part IV defends the theory by examining two situations neglected by conventional conflicts theory: conflicts within one state's law, and conflicts between state and federal law. Part V examines the relevance of the Constitution, and Part VI applies the constitutional principles thereby derived.


    Articles about conflicts frequently begin with -- or are entirely devoted to -- a history of the subject.(26) The need for another such recapitulation may certainly be questioned. This recounting, though, is not mere intellectual dressage. Because I intend to argue that the correct way of thinking about conflicts may be derived from the historical approaches, it is worthwhile to show both how the essential concepts already exist and how they have been prevented from uniting into a coherent theory.

    Conflicts has a rich history. To begin at the beginning might require a return to ancient Egypt and the wrappings of a crocodile mummy, which supposedly contain the first recorded choice-of-law principles.(27) A full account would then consider the theories of medieval Europe, the early English approach that did away with the problem of foreign transactions via the fiction that all events occurred in London,(28) and subsequent developments in the courts of America. The perspective afforded by a thorough historical exposition is of significant value, for conflicts revolves around a few great and recurring themes. But the full-dress reenactment has itself already been done,(29) and only a few scenes are necessary to my project. Of course, any attempt to sketch the history as mere opening act for a theoretical venture will inevitably be selectively incomplete. What follows is an account that highlights those aspects important to my project -- how the issue of conflict has been repressed, and how, in later theory, choice has taken its place.


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