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A Common Law of Choice of Law

Authors: Lea Brilmayer; Daniel Listwa;

A Common Law of Choice of Law

Abstract

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 post-revolution 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 understanding 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of Conflict of Laws, currently being circulated in draft form, continues that error, wholeheartedly endorsing an outdated and unworkable mode of interest analysis.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 rule-making and that does not rely on sharp, fictive lines drawn between “interpreting” the law and developing system-oriented rules.

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
1
Average
Average
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