The Myth of Choice of Law: Rethinking Conflicts

Choice of law is a mess. That much has become a truism. It is a “dismal swamp,” a morass of confusion, a body of doctrine “killed by a realism intended to save it,” and now “universally said to be a disaster.” One way to demonstrate its tribulations would be to look at the academic dissensus and the hopelessly underdeterminative Restatement (Second) of Conflict of Laws. Another would be to examine the Supreme Court’s abdication of the task of articulating constitutional constraints on state choice-of-law rules. This article will do both. At the outset, though, I want to suggest that one need look no further than the nomenclature of the subject. I do not mean the arcane terminology – depecage, renvoi, retorsion, false conflicts, comparative impairment, and unprovided-for cases – that falls liltingly from the tongues of conflicts scholars and crushes listeners into bemusement or horror. I claim instead that the conceptual difficulties of this field can be discerned at the broadest level of generality, in the dual names of the subject itself: “Choice of Law” and “Conflict of Laws.” The mere existence of multiple monikers should not surprise. Areas of legal study often go by more than one name. The class called “Federal Jurisdiction” at one law school might be “Federal Courts” at another; the same is true for “Corporations” and “Business Organizations.” Sometimes these names are synonyms; other times the relation is obvious enough to need no explanation. Federal courts exercise federal jurisdiction, and the study of one is the study of the other. Conflicts nomenclature is less transparent. An ordinary speaker of English might be puzzled to learn that “Choice of Law” and “Conflict of Laws” denote the same area. When laws conflict, one might think, the question is not which law should be chosen but rather which law prevails.