Academic journal article Suffolk University Law Review

Restating the Restatement of Conflicts: Approaching the Legitimacy Question in Choice-of-Law Theory

Academic journal article Suffolk University Law Review

Restating the Restatement of Conflicts: Approaching the Legitimacy Question in Choice-of-Law Theory

Article excerpt

INTRODUCTION

In George Bernard Shaw's Man and Superman, the protagonist, the forlorn revolutionary John Tanner, wrote, "Revolutions have never lightened the burden of tyranny: they have only shifted it to another shoulder." (2) The message, presented at the turn of the century in Shaw's mournful drama, might well be applied to modern choice-of-law theory. After a century of focus on the theory of lex loci delicti promulgated by Joseph Story and Professor Joseph Beale, and reaching its codification in the First Restatement of Conflicts, (3) the conflicts "revolution" rejected this theory forcefully. (4) While traditional choice-of-law theory established location as the most important factor for determining applicable law, the choice-of-law revolutionaries, following Brainerd Currie and his successors, sought to ground choice-of-law decisions in the policy interests of states. The First Restatement, characterized as "a Prussian-like system of detailed, mechanical and rigid rules," (5) was replaced by the Second Restatement, which one scholar described as "hopelessly underdeterminative." (6)

Approaches to choice of law, at the extremes, vary between the vested rights theory of Joseph Beale and the governmental interest theory of Brainerd Currie. Both are motivated by a shared desire to find the objective standards by which judges apply law, but they do so in vastly different ways. The vested rights approach was deeply formalistic, reflecting Beale's own approach to the study of law. The interests approach of Currie and his followers--the revolutionaries who currently reign in the field--offers a realist response to Beale's formalism. Because vested rights theory grows out of the formalist tradition of law, seeking a scientific approach to discovering the true doctrines underlying our common law, and the governmental interest approach grows out of the realist rejection of formalism and its faith in the science of law, defenders of either side speak past each other instead of moving toward any common understanding. Given the opposite poles that these two camps inhabit, adherents to either view lose track of the central question of the debate: How can a judge make a legitimate choice-of-law decision? This article attempts to refocus the debate without ignoring insights gained from both fields. It attempts to find a middle ground between the rights and interest theorists, which grounds judicial legitimacy in the centrality of democracy to the American political and legal system.

In moving away from the rights theory of Beale, the interest theorists have wholly embraced governmental interest as the guiding principle in the face of more traditional territoriality. However, through their wholesale rejection of rights, the interest revolutionaries have thrown the proverbial baby out with the bath water. The choice-of-law revolution has not solved all of the problems created by vested rights, but instead has created a system that is as entrenched as its predecessor and just as blind to criticism. Moreover, by rejecting rights, they have created a system of choice-of-law that puts undue weight on the desire of legislatures to determine choice-of-law rules, instead of the desires of individual citizens. This article seeks to revitalize the importance of rights for choice-of-law theory and proposes a system whereby judges balance governmental interest with individual interest in order to overcome what I suggest is a democratic deficit in the modern choice-of-law revolution. Rather than requiring a judge to choose between rights and interests on the basis of the formalist/realist debate, it suggests that judges instead balance two different political theories. A liberal, rights-based approach to choice of law asks the judge to protect the rights of an individual from encroachment by a state and its laws. A republican approach reframes governmental interest as an expression of the general will of the state that the judge, as a functionary of the state, should uphold; the judge in that position is forced to interpret a general will that may conflict with the individual will of citizens. …

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