Choice of Law for American Courts: A Multilateralist Method

Choice of Law for American Courts: A Multilateralist Method

Choice of Law for American Courts: A Multilateralist Method

Choice of Law for American Courts: A Multilateralist Method

Synopsis

This study proposes a multilateralist method of choice of law in order to alleviate the great disarray that currently exists in American choice law. In the early 20th century, there was a fairly-uniform multilateralist method of choice law. In the 1920s and 30s, however, scholars adn courts began to reject this method. Viewed as too mechanical the method sometimes resulted in the choice of law of a state with only a tenuous connection to the controversy. Currently, state courts use four different approached to choice law with numerous material variations. This study rejects these approaches on normative, constitutional, and practical grounds. Instead, it advocates that courts adopt a multilateralist approach to choice of law that is forum- and content-neutral and that respects the rights of both individuals and states. The study also argues that such an approach should satisfy a constitutional standard that requires a court not choose one state's law when another state has a significantly closer connection to controversy.

The proposed method consists of two parts. The first part determines the states that have created legal relations applying to the dispute. When more than one state has created a legal realtions applying to the dispute. When more than one state has created a legal relation that applies to the controversy, the second part adopts the law of the state that had the closest connection. The study then applies the suggested method to numerous choice of law problems.

Excerpt

Modern choice of law lies somewhere between disarray and chaos. Even as early as 1953 William L. Prosser wrote, “The realm of the conflict of laws is a dismal swamp, filled with quacking quagmires, and inhibited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon. the ordinary court, or lawyer, is quite lost when engulfed and entangled in it.” Similarly, in 1975, a federal judge declared, “The law on ‘choice of law’ in the various states and in the federal courts is a veritable jungle, which, if the law can be found out, leads not to a ‘rule of action’ but a reign of chaos.” More recently, Professor Perry Dane called modern conflicts, “the law’s psychiatric ward.”

This disorder in choice of law has resulted in state courts employing four different choice of law approaches with numerous material variations. in addition, some states adopt different choice of law methods for different substantive areas or even, occasionally, in the same area. Conflicts scholars have added to this confusion by advocating nearly as many choice of law methods as there are conflicts scholars.

This study will argue that the dismal swamp in modern choice of law is mainly due to a shift from a multilateralist approach to choice of law to a unilateralist one. This change, which began in the 1920s, has registered in both state choice of law methods and in constitutional constraints on choice of law. the result is that many jurisdictions have abandoned any attempt to choose the law of the most appropriate jurisdiction—that is, the jurisdiction with the closest ties to the litigation. Instead, courts often apply their own law, even when their jurisdiction has only a tenuous connection to the controversy.

Choice of law methods fall into three categories: (1) the unilateralist approach . . .

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