The Myth of Choice of Law: Rethinking Conflicts

Abstract

Conflicts theory pervasively characterizes the issues raised by multistate cases as choice of law. The task of courts is taken to be identifying the correct law to apply. This approach, the article claims, hides the conflict between the competing laws and lends a spurious legitimacy to choice-of-law rules that are deeply discriminatory, and indeed unconstitutional.

There are reasons for the current approach to conflicts. First, according to the jurisprudential assumptions of earlier conflicts theories, only one law could operate within a given territory. Consequently, the task of courts really was to identify the law governing a transaction. Second, an approach that works in terms of choice spares courts the difficult task of trying to reconcile the state and federal concerns raised by conflicts cases.

But historical cause is no justification, and avoiding difficult questions is no virtue. We can, and indeed should, begin to think about multistate cases more in terms of conflict and less in terms of choice. Framing the question in terms of a conflict, rather than a choice, between laws discloses a theoretical structure on which constitutional antidiscrimination norms -- notably the Privileges and Immunities and Full Faith and Credit Clauses of Article IV -- find purchase. Thinking in terms of conflict allows us to discern the proper role for the Constitution in conflicts cases, balancing the competing local and federal concerns.