Jurisdictional Realism: Where Modern Theories of Choice of Law Went Wrong, and What Can Be Done to Fix Them
An American Law Institute project on the conflict of laws is preparing to bring forth a new Restatement on the subject. The issues most hotly debated behind the scenes are those involving choice of law, a somewhat technical legal specialty with a well-earned reputation for impenetrability. Despite the theoretical difficulty of the topic, the drafting of the new Restatement (Third) has been the cause of intense interest on the part of the bench and bar. Selection of the applicable law—while deeply influenced by theoretical considerations—has immense practical consequences because of the recurrence of the issue in contemporary litigation.
The leading modern school of thought on choice of law is an approach known as “interest analysis.” Interest analysis was the product of the legal realist movement, a fact that was partially responsible for its widespread influence. In modern choice-of-law theory, the selection of the applicable law is structured upon the assumption that choice of law is not significantly different from the ordinary processes used in interpreting domestic substantive law. In reality, however, questions of jurisdiction are different from questions of substance because of the presence of two or more independent voices.
The presence of independent voices creates problems because modern choice-of-law theory purports to respect the different “interests” of the states whose law might be applied. But what interests do states really have? Are these subjectively determined (the interests that states think that they have) or are they objective (conceptual constructs devised by others, on behalf of and paternalistically imposed upon the state)? This is a conundrum for realists. But if the realist foundations of modern choice-of-law theory are to be respected, objective interests do not exist; jurisdictional realism must be reconfigured to avoid imposing contentious theoretical assumptions on those state decision-makers who create the law.