Interest Analysis and the Myth of Legislative Intent
My critique begins with a brief analysis of the principles underlying the Currie school’s calculations of whether a state has an interest in having its law applied; it seeks to expose the unarticulated biases inherent in that calculus. I then argue that Currie’s principles cannot be justified as expressions of actual legislative intent regarding a statute’s territorial scope. Indeed, the discrepancy between governmental interests and actual legislative intent has been overlooked only because, in the vast majority of cases, legislatures have no actual intent on territorial reach with which to contrast Currie’s results.
But without actual legislative endorsement, interest analysis must fall back on constructive intent – on a theory that a rational legislature would, upon reflection, prefer the results of interest analysis to those of competing conflicts methodologies. In the most detailed discussion of this Article, I take issue with this theory. Interest analysis is simply too unpredictable and parochial to be a plausible theory of constructive intent. Furthermore, it is highly doubtful that substantive intent can by itself provide a sufficient basis for conflict of laws decisions. I conclude with a short survey of conflicts statutes to demonstrate that when legislatures treat conflicts problems explicitly, they ordinarily do not follow the interest analysts’ approach to territorial reach. Interest analysis no more reflects actual or constructive legislative intentions than did the First Restatement. It is a metaphysical system, and a remarkably flawed one at that.