An Essay On Predictability In Choice-Of-Law Doctrine And Implications For A Third Conflicts Restatement

Abstract

FIRST PARAGRAPH(S)|This essay is Erwin Griswold's fault. Griswold was Harvard's law dean and renowned conflicts scholar. As chance would have it, I eventually became a co-editor of a Conflicts casebook on which he had been one of the early editors. As I began my academic career, following my Conflicts professor, the great comparativist Friedrich Juenger, I was an unabashed substantivist, urging courts to apply the better rule of law. Like Juenger, I thought (and still think) that Brainerd Currie's "interest analysis" is mostly a circumlocution for applying forum law.|Interest analysis, except to the extent that it influenced other approaches-notably the Second Restatement of Conflicts-has fizzled out among U.S. courts. Important state courts, notably the high courts of California, New York, and New Jersey, once adopted it. But New York went its own way with the creation and expansion of the so-called "Neumeier rules" and now cites the Second Restatement. New Jersey had long been held out as the last bastion of relatively pure interest analysis, but departed from it in favor of the Second Restatement. California still hangs onto the interest analysis vocabulary, but rejected a central tenet of Currie's theory, which is that in "true conflict" cases-those in which multiple states have interests- the forum state should apply its own law. Instead, California adopted the "comparative impairment" solution-that is, applying the law of the state whose interests would be most impaired if it were not applied-for true conflicts. A recent and thorough examination of the actual application of California's choice-of-law methodology reveals that it generates strikingly territorial results...