A Choice by Any Other Name: Ad Hoc Substitutes for Choice of Law

Abstract

Contemporary choice of law suffers from indeterminacy at every level: in theory and in practice, in variation between states, and in divergent rules, standards, exceptions, and methods. Some quarrel with how bad the disorder really is, but few assert that the existing system is in any sense optimal. It generates a number of problems, the most visible arising from forum shopping to take advantage of choice-of-law rules favoring forum law. Plaintiffs simply look for a forum with favorable substantive law, favored by its own choice-of-law rules. Attempts to devise determinate rules that might deter such practices might yet succeed in generating consensus. Until they do, however, choice of law has left a vacuum to be filled by different sources of legal doctrine—different enough to be separable from the field of choice of law, but similar enough to dictate the choice of one state’s law or another’s. If judges, lawyers, and parties cannot find solutions within the field, they naturally turn to solutions outside it. This Essay surveys these efforts, which might, to be sure, be worse than the disease. Nevertheless, they indicate how serious the disease is.

Keywords: choice of law, personal jurisdiction, procedure, forum shopping, extra-territoriality