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Choice of Law Theory and the Metaphysics of the Stand-Alone

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Choice of Law Theory and the Metaphysics of the Stand-Alone Choice of LawLaw TheoryTheory and the Metaphysics of the Stand-Alone TriggerTrigger Lea Brilmayer*Brilmayer" & RaechelRaechel Anglin**Anglin"" ABSTRACT: This ArticleArticle provides a novel accountaccount forfor thethe choice of lawlaw revolutionrevolution ofof thethe 1960s and 1970s and,and, building on our new conceptualizationconceptualization of thethe choicechoice of lawlaw revolution, this Article argues forfor a fundamentalfundamental shiftshift in modernmodern choice of law-a shift towardtoward a multifactor future.future. Whereas previousprevious scholars have uniformly conceived of the transition from the dominantfirst first Restatement of Conflict of Laws to modern choice of lawlaw theory as a legal realist rejection of vested rights, this Article argues that judgesjudges were motivated toto move away fromfrom the firstfirst Restatement because theythey found inequitable its single-factor results. The firstfirst Restatement relies on a single contact with a state to determine which state's law applies in a multistate dispute, and this Article concludes that when that contact "stands alone"-i.e., is the only contact with that state-judges findfind the result dictated by the first Restatement toto be arbitrary and unjust. When facedfaced with such "lopsided""lopsided"factual factual scenarios, judgesjudges have moved away from the firstfirst Restatement. However, because judges and scholars alike have consistently misdiagnosed the underlying problem, as this Article demonstrates, modern choice of law theories suffer from the samesame single-factor flaws that plague the firstfirst Restatement. Thus, this Article argues for a multifactor approach to choice of law.law. This Article argues that a multifactor approach will have three significant advantages: (1)(1) avoidance of controversial jurisprudential premises; (2) reduction of extraterritoriality; and (3) greater flexibility for judges. Perhaps most importantly, by properly identifying the rootroot causecause ofof thethe first Restatement's ills,ills, thisthis Article paves thethe way for greater theoreticaltheoretical clarity and simplicity, leadingleadingto more equitable results results inin choice of law.law. ** HowardHoward HoltzmannHoltzmann Professor ofof InternationalInternational Law, Yale Law School. **** Associate, Bingham McCutchenMcCutchen LLP.LLP. SheShe would likelike toto thankthankJudgeJudge CharlesCharles R.R. Wilson forfor his support.support. SheShe would alsoalso like toto thankthank KathleenKathleen and TheronTheron Anglin,Anglin, Mary Pyrdum,Pyrdum, and Andrew Hudson for theirtheir constantconstant encouragement.encouragement. 11251125 HeinOnline -- 95 Iowa L. Rev. 1125 2009-2010 1126 95 IOWAIOWA LAWREVIEWLAWREVIEW [2010] I. INTRODUINTRODUCTION CTIO N .....................................................................................1127 II. TRADITIONAL APPROACHES TO CHOICE OF LAW: THE CONVENTIONAL ACCOUNT ...................................................................1129 A. THE FIRST RESTAREsTA TEMENTTl:.'MENT OF CONFLICT OF LAWSLA w.5 ..............................1129 B. THE CHOICE OF LA WWREVOLUTIONREvOLUTION ..................................................1131 1. The Conventional Account ..................................................1132 a. Escape DDevicesevices ...................................................................1133 b. Transition Cases: The Choice of Law Revolution ................1136 2. What the Conventional Account Omits ..............................1138 a. Examples of thethe Stand-Alone Trigger ..................................1139 b. Escape D Devicesevices ...................................................................1140 c. Transition Cases ...............................................................1142 III. SINGLE-FACTOR THEORIES AND THE SIGNIFICANCE OF THE STAND- ALONEA LONE TTRIGGER RIGGER ....................................................................................1145 A. SINGLE-FACTOR VERSUS MULTIFACTOR THEORIES ............................1146 B. THE ACHILLES'HEELACHILLES'HEEL OF SINGLE-FACTOR THEORIES .........................1149 IV.V. MODERN APPROACHES TO CHOICE OF LAw ..........................................1151 A. THE MODERN METHODS:ME THODS: STASTATE TE POLICIES AND GoVERNMENTALGOVERNMENTAL ININTERESTS TERESTS ......................................................................................1152 1. Governmental Interests Defined ..........................................1152 2. Governmental Interests and Domiciliary Connecting FactorsFacto rs ....................................................................................1154 3. Interest Analysis as a Single-Factor Theory .........................1156 a. Stand-Alone Triggers and True ConJlictsConflicts............................ 11571157 b. True ConJlictsConflicts and ''Escape"EscapeDevices" .................................1157 B. IDENTFYINGIDENTIFYING ALTERNATIVEAL TERNA TVE APPROACHES: CENTER OF GRA VITY AND THE REsTATEMENTRESTATEMENT (SECOND) ..........................................................1159 1. "Center of Gravity": The Road Not Taken ..........................1160 2. The Most-Significant-Relationship Test-Restatement (Second)(Secon d ) ................................................................................1161116 1 3. The Restatement (Second): Single or Multifactor Theory?T h eory? ..................................................................................1164 C. THE PROS AND CONS OF BALANCNGBALANCING ................................................1167 1.1. Judges' Preferences ...............................................................1167 2. Critiques of Balancing ..........................................................1169 3. Balancing in Other Legal ConContextstexts .....................................1170 4. Balancing: The Positive Case ................................................1172 V.V . CCONCLUSION O NCLUSIO N ........................................................................................1174 APPENDIXAPPEN D IX ..............................................................................................11117676 HeinOnline -- 95 Iowa L. Rev. 1126 2009-2010 CHOICE OF LA WW THEORYTHEORY 1127 I.I. INTRODUCTIONINTRODUCfION ChoiceChoice of lawlaw isis anan essential concernconcern inin any case involvinginvolving occurrencesoccurrences inin moremore thanthan oneone jurisdiction,jurisdiction, andand American courts are increasinglyincreasingly hearing casescases involvinginvolving choicechoice of law concerns. Before aa judgejudge cancan decide howhow toto apply thethe law toto thethe facts ofof a case,case, thethe judgejudge mustmust decidedecide which lawlaw toto apply.apply. SinceSince the lawslaws ofof different jurisdictionsjurisdictions are often directlydirectly inin conflict, choice ofof lawlaw often determines whether thethe plaintiffplaintiff or thethe defendantdefendant wins thethe case. Choice ofof lawlaw isis a criticalcritical component ofof AmericanAmerican jurisprudence,jurisprudence, intenselyintensely practical yetyet theoreticallytheoretically complex. We identifyidentify one pervasivepervasive error in thethe wayway that courts ordinarily conceptualize choice of law.law. This errorerror isis thethe common assumption that judgesjudges can determine thethe correct choice of lawlaw by identifying one particular,particular, theoretically exceptional contact that,that, even whenwhen standingstanding alone, dominates the choice of law process and dictates the result.result. Consider, as illustration, the following hypothetical problem. A North Carolina clothing manufacturer and a New York retailer negotiate a contract in the course of meetings at the seller's home office inin North Carolina. The contract legallylegally comes into being when the buyer accepts the offer at thethe seller's office in North Carolina and is expressly made subject to North Carolina law. North Carolina is the place where the plaintiff alleges thethe breach took place. Which law applies, and why? The conventional wisdom isis that this question requires a choice between different connecting factors ("contacts"). Courts have typically framed the choice of law question as follows: Should the applicable law be the law of the place of contracting, the law chosen by the parties, the law of the place of performance, or the law of the state where the buyer (or seller) resides? Traditional theory, embodied in the "vested rights" approach of the firstfirst Restatement of Conflict of Laws, framed the answer inin terms of particular territorial occurrences (e.g.,(e.g., where the contract was formed); in contrast, modern theory,theory, illustrated by governmental interest analysis,analysis, focuses on thethe parties' domiciles. Both approaches, however, implicitly assume that there is a single,single, inherentlyinherently significant contact-what we call the "trigger"-that, standing alone,alone, isis sufficient toto support applying thethe chosen state's law. InIn both theories, thethe reasoningreasoning revolves around thethe chosen factor's supposedlysupposedly special jurisprudential character: Under traditional theory,theory, thethe "last act"act" gives riserise toto a "vested"vested right," while under modernmodem theory,theory, one party's domiciledomicile gives aa state an "interest" in having itsits lawslaws applied. EntirelyEntirely overlooked is thethe overalloverall pattern ofof contactscontacts between the disputedispute andand the states involved. The "single factor"factor"
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