A Common Law of Choice of Law

By Lea Brilmayer & Daniel B. Listwa

For more than a generation, choice of law has been the victim of a historical contingency. The “conflicts revolution” of the mid-twentieth century and its legal realist leaders bundled together three concepts that, although all typifying the traditional approach, are not inherently connected: the “scientific formalism” of Bealean territorialism, attention to “system values” like uniformity and predictability, and judicial activism. The revolutionaries tied an anchor to formalism, sinking the regard for system values and judge-led decision-making in the process. This Essay argues that the rejection of system values and judicial lawmaking in the choice-of-law context was a mistake—and it offers a means of reintegrating them into postrevolution choice-of-law thought.

Waving the flag of “legislative supremacy,” modern choice-of-law theory has asserted that standard techniques of statutory interpretation ought to be determinative of how courts resolve choice-of-law problems. However, the modernists have failed to grapple with what “interpretation” means in a context that is almost never contemplated by legislatures. In recent years, those studying statutory interpretation have become increasingly sophisticated in their understandings of the ways in which courts use expansive sets of resources to counter difficult cases, leading to recognition of the “common law” of interpretation. But, so far, choice-of-law theorists have been left behind—continuing to adhere to a primitive conception of statutory interpretation that shuns the role of the judge and the importance of broader goals, including the facilitation of system values. The Restatement (Third) of Conflict of Laws, currently being circulated in draft form, continues that error, wholeheartedly endorsing an outdated and unworkable mode of interest analysis.

This Essay offers a means of modernizing the modernists and rescuing the Restatement (Third) in the process. The key insight is to recognize that judicial creativity and attention to the facilitation of a workable system of choice of law is fully consistent with realism. Moreover, the principle of legislative supremacy is better protected by a methodology that does not mask metaphysical invention behind empty phrases like “interests” but instead recognizes explicitly the important yet limited role of the judiciary. In line with these recommendations, this Essay advocates for the embrace of a “common law of choice of law” methodology, an approach that recognizes judicial, common-law rulemaking and that does not rely on sharp, fictive lines drawn between “interpreting” the law and developing system-oriented rules.