RESOLVING RENVOI: THE BEWITCHMENT OF

OUR INTELLIGENCE BY MEANS OF LANGUAGE
Kermit Roosevelt III*
INTRODUCTION 1822
I. THE PROBLEM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1825
II. RENVOI WITHIN SYSTEMS.. . .. . . . .. . . . .. . . . . . . .. . . . . . . . . . .. 1830
A. The Territorial Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1830
1. The Inherent Distinctiveness of Choice of La",,7 ... 1836
2. The Appeal to Objectivity. . . . . . . . . . . . . . . . . . . . . . .. 1837
3. The Local Law Theory. . . . . . . . . . . . . . . . . . . . . . . . . .. 1842
B. Interest Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1849
1. The Inherent Distinctiveness of Choice of Law ... 1852
2. The Appeal to Objectivity. . . . . . .. . . . . . . . . . . . . . . .. 1855
3. The Local Law Theory. . . . . . . . . . . . . . . . . . . . . . . . . .. 1864
4. A Solution? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1865
C. The Second Restatement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1867
III. REV1SING RENVOI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1869
A. The Two-Step Model. . . . .. . .. . . . . . . . . . . . . . . . . . . . . . .. 1869
B. Renvoi Within the Two-Step Model . . . . . . . . . . . . . . . . .. 1872
1. Ascertaining the Scope of Foreign Law. . . . . . . . . .. 1872
2. The Problem of Mutual Deference. . . . . . . . . . . . . .. 1873
3. Understanding Assimilation. . . . . . . . . . . . . . . . . . . . .. 1874
IV. COJ'..'VENTIONALISM RECONSIDERED. . . . . . . . . . . . . . . . . . . . . . . .. 1875
A. Conventional ApfJroaches Within the Two-Step Model. . . . .. 1875
1. The Territorial Approach 1876
2. Interest Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1876
3. The Second Restatement. . . . . . . . . . . . . . . . . . . . . . . .. 1877
4. Testing the Redescription. . . . . . . . . . . . . . . . . . . . . . .. 1877
B. Renvoi and the Conventional ApjJroaches Reconsidered. . . .. 1880
* A ~ s i s t a n t Professor, University of Pennsylvania Law School. I thank Stephen
Burbank, David Franklin, Geoffrey Hazard, Henna Hill Kay, Larry Kramer, Rebecca
Tushnel, Stephen F. Williams, and the participants at a University of Pennsylvania
faculty workshop for their helpful comments and suggestions. Rachel Hannaford
provided excellent research assistance. The writing of this Article was supported bva
summer research grant from the University of Pennsvlvania Law School.
N(lTRE DAME LAW REVIEW
1. Renvoi Within Systems .
a. The Territorial Approach .
b. Interest Analysis .
c. The Second Restatement .
2. Renvoi Across Systems .
V. RESOLVING REN\/Ol .
CONCLCSION .
INTRODUCTION
1882
1882
1884
1886
1887
1887
1890
The task of a court confronted with a choice-of-Iaw problem, con-
ventionally conceived, is to determine which of several different juris-
dictions' laws applies to the case before it. I The question of what law
applies is a question the court answers by consulting the law of its own
state; that is, it is a question of forum choice-of-Iaw doctrine. If the
forum's choice-of-Iaw rules direct the application of forum law, the
court proceeds to apply the forum's substantive, or internal law: the
tort, contract, or other law that determines the parties' substantive
rights.
The forum's choice-of-Iaw rules might also direct the application
of another state's law. At this point a question arises. Should the
court, when instructed by forum law to apply the law of another state,
apply that state's internal law, or should it apply the state's entire law,
including its choice-of-Iaw rules? The latter might seem the obvious
choice-applying a state's law, after all, presumably means reaching
the same results that the courts of that state would reach-but it
opens the door to an alarming possibility. Suppose that State A's law
directs the application of State B's law, and the State A court under-
stands this to mean the entirety of State B law. If State B's choice-of-
law rules point back to State A law, it is natural again to understand
this as a reference to the entirety of State A law, and an unending
series of references back and forth arises.
2
Though renvoi arises in the international context, this Article will focus on the
domestic, interstate version, both to keep things as simple as possible and because I
will argue that the constitutional provisions governing interstate relations significantly
constrain states in the choice-of-law venture. For international conflicts, the constitu-
tional constraints are obviously lesser, but the conceptual points I make retain
significance.
2 Other descriptions of the repetition thus created abound. Renvoi has been
called: a "circulus inextTicabilis," JOHN PAWLEY BATE, NOTES 0 THE DOCTRINE OF
REi'.'VOI IN PRIVATE INTERNATIONAL LAW 49 (1904), an "endless circle," Lindell T.
Bates, Remission and 'Transmission in AIIlPTir:an Conflict oj Laws, 16 CORNELL L.Q. 311,
313 (1931), and a "game of battledore and shuttlecock [or] international lawn-ten-
RESOLVING RENVOI
The doctrine that a reference to the law of another state is a ref-
erence to the entirety of that state's law is the doctrine of renvoi, and
the question of whether it should be followed-whether, in choice-of-
law terminology, the renvoi should be "accepted" or "rejected"-
stands out even among the notorious esoterica of conflict of laws as
unusually exotic and difficult.
3
For nearly t\vo hundred years it has
troubled the courts,4 driving judges to distraction and scholars to trea-
tises on deductive logic.!'> Though "[j]uristic speculation has been al-
most infinite,"6 scholarship has not settled the matter; much of it,
"upon analysis, is seen to consist of nothing but dogmatic statement[s]
of the result desired to be reached."7
In more recent years, the controversy has abated, as scholars
seem to have accepted the claim, put forward by proponents of mod-
ern policy-oriented approaches to choice of law, that these newer ap-
proaches offered a decisive answer.
8
But the claim is untrue, and the
problem persists.
9
The solutions advanced by the policy-oriented ap-
proaches are essentially the same as those offered by the territorialists,
nis," Ernest G. Lorenzen, The Renvoi Them)' and the AplJlication of Foreign Law, 1()
COLUM. L. REV. 190, 198 n.33 (1910).
3 See, e.g., Joseph M. Cormack, Renvoi, Characterization, Localization and Prf'lill/.i-
nm)' C2uestion in the Conflict of I,aws, 14 S. C-\L. L. REV. 221, 249 (1941) (calling the
doctrine "famous, insidious, and baffling"). The matter of pronunciation presents all
additional difficulty: "rohn-vwa"? "ren-voy"? "ron-voy"? The first is correct given the
word's French origin; those wishing to Anglicize (and after all, no one calls the capital
"Pah-ree") use one of the latter two. See Larry Kramer, Return of the Renvoi, 66 N.Y.U.
L. REv. 979, 980 (1991) (" [P]roper pronunciation is something like 'rOIl-V\Va,' though
some crude American scholars (myself included) say 'roIl-VOY.''').
4 See Ernst Otto Schreiber, Jr., The Docl1ine of the Renvoi in Anglo-American Law, 31
HARV. L. RE\'. 523, 523 (1917) (describing early renvoi cases).
5 For an example of the former, see In re Tallmadge, 181 N.Y.S. 336, 348 (Sur. Ct.
1919) (deploring the "fundamental unsoundness" of the renvoi doctrine); for the
latter, see, for example, J.c. Hicks, nil' Liar Pam.r{ox in Legal Reasoning, 29 Ci\"1BRIDCE
LJ. 275, 278-80, 284-89 (1971) (discussing renvoi in terms of the theories of Ber-
trand Russell and Alfred North Whitehead). I will have a bit to say about the logical
structure of the problem, though I do not, in the end, think that approaching it from
the perspective of formal logic is useful.
6 Note, A Distinction in the Renvoi Doctrine, 3:) BAR\'. L. RE\'. 454, 454 (1922).
7 Cormack, supra note 3, at 249.
8 Sef inj1"a Pan II.B.
9 .)pf infra Pan II.B. Kramer, supra note 3, at 1003-13, deserves credit for the
most penetrating and comprehensive statement of this point. My account of why the
modern approaches do not solve the renvoi problem is similar to Kramer's, but it
adopL5 a slightly different perspective and relies in pan on constitutional
considerations.
and they sufler from the same defects. 'o Consequently, the dispute
over renvoi should be a live one.
At least, it should be a live one according to the conventional
understanding- of the nature of the choice-of-Iaw process. My goal in
this Article is not to take a side in the dispute-not to argue that
renvoi should be accepted or rejected. It is instead to shed some light
on what kind of a problem renvoi is, why it occurs, and what the prob-
lem might tell us about choice of law more generally.
In his 1938 assessment of the problem, Erwin Griswold lamented
that "we are apparently on a merry-go-round" and asked" [h] ow is it
possible to get off?" 11 I want to ask a different question: how did we
get on in the first place? And my conclusion, to end the suspense, is
that certain conventional ways of talking about choice of law have
given us an unfortunate picture of what a choice-of-Ia'w analysis in-
volves.
l
5! One of the unfortunate things about this picture is that it is
false in perhaps the only sense such a picture can be false, which is
that its vision of what courts are doing is unconstitutional. But more
to the point, the picture is unhelpful. It generates unnecessary difli-
cui ties; it produces problems such as renvoi. Moving beyond that pic-
ture, and conceptualizing conflicts in a different way, would help the
field a great deal, and this Article is one in a series of attempts to
demonstrate that the persistent problems of the conventional under-
standing are not inevitable. I!>
Part I of the Article sets out the renvoi problem as it is conven-
tionally understood. Part II examines the attempts to solve it within
particular choice-of-Iaw systems: the territorial approach and the more
modern, policy-oriented approaches. It suggests that these attempts
10 Kramer's approach, though I do not agree with it in all particulars, is not sub-
ject to the same criticisms. See infra Part 11.B.
11 Erwin N. Griswold, Renvoi Revisited, 51 HARV. L. REV. 1165, 1167 (1938).
12 See LUDWIC \'\!ITTCENSTEIN, PHILOSOPHICAL hVESTICATIONS § 115 (G.E.M. An-
scombe trans., 1953) ("A picture held us captive. And we could not get outside it, for
it lay in our language and language seemed to repeat it to us inexorably.")_
13 For my earlier attempt, see Kermit Roosevelt III, 17Le Myth oj Choice oj Vnu:
Rethinking Conflicts, 97 MICH. L. REV. 2448 (1999) _ The broad purpose of that article
was to suggest that it would be more useful to talk in terms of conflicts, rather th;<n
choices, between laws, because the rhetoric of choice overstates the extent to which
one state may disregard another state's determination that a transaction falls within
the scope of its law. This Article addresses what is in some ways the converse of that
problem: the extent to which one state may disregard another's determination that its
law does not reach a transaction. It focuses more broadly on the conventional under-
standing of choice of law as a matter of "determining what law applies" in the context
of renvoi; it also amplifies and refines some of the points of the earlier article. And, I
admit, it corrects a couple of mistakes.
RESOLVING RENVOI
are actually much more similar than has previously been recognized
and that they fall prey to similar difficulties. It also examines the cur-
rent situation, in which methodological pluralism obtains, and dem-
onstrates that this exacerbates the problem of renvoi. Part III sets out
a different approach to choice of law, building on a model developed
by Larry Kramer. Within this model, I show, the problem of renvoi
quite different; indeed, it does not exist. In place of the inter-
minable circle of references back and forth, there are several narrmv
and distinct questions, none of which is insoluble or paradoxical.
Part IV uses the model developed in Part III as an analytic tool to
examine the territorial and modern approaches to choice of law and
to gain a different perspective on the nature of renvoi within those
systems. And Part V offers the inevitable summation, arguing that
renvoi, like many other apparently intractable problems in choice of
law, is not a difficulty inherent to the venture. Still less is it a logical
puzzle to be tackled by appeals to Russell and Whitehead. Instead, it.
is the artifact of a particular conception of the choice-of-Iaw process,
imposed upon on us by the conventional vocabulary-specifically, the
supposition that one state's law can determine whether another state's
la,,, applies, and more generally, the idea that a court's task in per-
forming a choice-of-Iaw analysis is to decide which state's lav,' applies.
I. THE PROBLE!'v1
Choice-of-law rules, at least on occasion, will direct the applica-
tion of some law other than the law of the forum. That, after all, is the
point of choice of law. vVhen they do, the forum court must decide
,·"hat it means to apply the law of another state. And this, as already
noted, is the occasion at which t.he problem of the renvoi arises. One
of the earliest discussions of the problem phrased the issue as follows:
"Broadly stated, the doctrine of the 11!nvoi is that, when by its rules of
the conflict of laws a court must apply the law of some other legal
unit, it must apply not only the internal law of that unit, but also its
rules of the conflict of laws." 11 Modern formulations are similar. ",
The problem, of course, is that each state's choice-of..law rules might
] 4 i\ote, oil/tHO note 6, at
1:l ,"in', I',g., Erin A. O'Hara & Larr\' E. Ribslcin, j·ilJlll Politic.I til 1}Jicil'l/c\, ill Chuifl' o!
Law, 67 l!. CJ II. L. RE\. 11;)], ] 196 (2000) (" I't\'] hen court X decidl:'s thaI Y stall:' law
applies. should court X applv Y subslantiv<:, la,\" or should it apply \. choice·of-Jaw rules
... :"). The importal1t aspect of this formulation, as will become clear, is that it se('s
tile ;lpplicuioll of Sr.'lIC )' 1;1\\' as qLwstio!l 10 be oelcrlllined b,' the SlaLe X COlin.
und('r SLue .\ Ia\\.
No'rRF D:\II,.IE LA\-\' RE\'[EII' [VOl., HO:;j
point to the law of the other state, setting up a series of references
back and forth, with no obvious end in sight.
At the outset, there is something to be said about what kind of a
problem renvoi is, One answer is that it is a problem of self-referen-
tiality, conceptually linked to the welter of related paradoxes arising
from the simple proposition: "This sentence is false,"[(; If we suppose
that the question in a particular legal case is whether the plaintiff
should prevail, renvoi could be modeled as a situation in which State
A's law provides that the plaintiff should prevail if she would prevail
under the law of State B, while State B's law provides that the plaintiff
should prevail if she would under the law of State A.17 More precisely,
the renvoi problem can be compared to the circle created by the fol-
lowing two propositions:
Pl: The following sentence is true,
P2: The preceding sentence is true.
These sentences do not create a paradox, as they would if one
asserted the falsity of the other. What they create is an indeterminacy
about their truth-values, a situation in which it seems equally plausible
to characterize them as both true, or both false. If PI is true, for ex-
ample, then P2 must be true. And if P2 is true, then PI must be true.
So this supposition simply leads to the conclusion that both are true.
What if PI is false? Then P2 must be false, in which case PI must be
false. Neither supposition leads to a contradiction.
Likewise, we could suppose either that State A law provides that
the plaintiff prevails or that she does not; either supposition fits
equally well. If State A law so provides, then B law does as well; if A
law does not, neither does B law. The problem in this situation arises
from the fact that there is no way to put content-the substance of A
or B law, the truth-values of PI or P2-into the circle, which means
that a court would be unable to reach a decision: A and B law, as
defined, do not resolve the case. One way of expressing this conclu-
sion would be to say that when it is impossible to decide whether a
proposition is true or false, it is quite likely that the proposition has
16 See generally, e.g., GEORG HENRIK VON WRIGHT, PHILOSOPHIC,.Ai. LOGIC 25-33
(1984) (discussing "the paradox of the liar"); Thomas A, Cowan, Renvoi Does Nol In-
volve a Logical Fallacy, 87 U. PA, L. REv. 34,41-46 (1938) (comparing renvoi to stan-
dard paradoxes of self-referentiality).
17 As I will suggest later, the renvoi problem appears in this form if one adopts
the local law theory, See infra notes 79-82 and accompanying text.
RESOLVING RENVOI
not been defined sufficiently to make it usefu1.
1H
From this perspec-
tive, renvoi appears as an incomplete definition.
19
It is also possible, however, to model renvoi in a way that pro-
duces paradox. Paradox arises when the truth-values of the proposi-
tions change as the cycle progresses. In the one-proposition version
("This sentence is false") the supposition that the sentence is true im-
plies that it is false, in which case it is true, and so on. The two-pro-
position version is this:
PI: The following sentence is true.
P2: The preceding sentence is false.
Here, if we suppose that PI is true, we can conclude that P2 is
true, which implies that PI is false. And if PI is false, then P2 must be
false, and hence PI must be true. Renvoi resembles this model if we
suppose, as does the conventional approach to choice of law, that the
question to be answered is "What state's law applies?" Now name our
propositions "State A law" and "State B law" and define them as
follows:
State A law: State B law applies.
State B law: State A law applies.
Now State A law tells us that State B law applies, but State B law
tells us that State A law applies. The shifting answers to the question
match the fluctuating truth-values of PI and P2; here renvoi appears
as a paradox. The two states' laws, with their mutual cross-reference,
in fact contradict each other. This depiction of renvoi is probably
closer to the conventional understanding than the incomplete defini-
tion, and it captures something important about the problem: the ex-
tent to which it relies on the supposition that State A law has
something to say about whether State B law applies to a transaction. I
18 Such an assertion is recognizable from the philosophical perspective. It resem-
bles the logical positivist claim that the meaning of a proposition is iL<; method of
verification, which carries as a corollary the implication that propositions that cannot
be verified are meaningless. S'ee, e.g., Moritz Schlick, Positivism and Rmlis1I/ (David
Rhynin trans.), in LOGICAL POSITIVISM 82, 86-88 (AJ Ayer ed., 1959). It also holds a
place in the legal canon. See Felix S. Cohen, Transcendental Nonsense and the Functional
Ajlpmach, 35 COLUrvl. L. RE\'. 809, 826 (1935) ("All concepts that cannot be defined in
terms 01" the elements of actual experience are meaningless.").
19 Erwin Griswold, in one of the leading articles, directs readers to a book by
Lewis and Langford. Griswold, sUjlra note 11, at 1167 n.8 (citing CLARENCE IRVIJ'o:(;
Lrwls & COOPER Hc\ROLD LANGFORD, SVl\·1BOLIC LOGIC 438-85 (1932)). Those authors
discuss the paradox created by two sentences, each of which asserts the falsity of til("
other, and term the situation thus created a "viciolls regression" resulting from the
faet that "we have pretended to define III and in terms of each other and ha\"C
therefore not assigned to them any meanings at all." IR\JNC LL\\IS &
COOPER HMI.()IJ) SY1--1BOLIC LOGIC 440 (1932).
"OTRE Il.\ME 1..\\1' RE\'IFII'
will have OCGbion to discuss both versions, hut the paradox will he the
priman' focus.
So what ki nd of a problem is renvoi? From a logical perspective,
it is a Droblem of self..referentialitv, which we could call a paradox or
i j
an incomplete definition. Another answer, which does more to ex-
plain the literature, is that it is a tempting problem. It is severe, for it
seems to prevent resolution of a case, but it is easily stated, for every-
one understands the idea of an endless cycle. It is, by the standards of
legal scholarship, it allows ready allusion to famous philosophi-
cal riddles, which possess-or seem to-more intellectual gravitas
than the latest iteration of the Uniform Commercial Code. And it
appears the sort of thing that only someone very smart could fIgure
out; there is about it a whiff of Excalibur. It is, in short, exactly the
type of problem that problem-solving types like to solve.
The tempting nature of the problem is a partial explanation for
the academic furor that arose over renvoi in the first half of the twen-
tieth century. But renvoi was debated with such intensity in the la,,,
reviews not simply because it is the sort of thing that strikes legal
scholars as nifty; it is also, legitimately, a serious issue in the conflict of
laws. \i\Then a carefully constructed system throws up a paradox, it is at
least a warning that something may be amiss in the l It was
not without reason that the problem for many years "occupied the
first rank in the theoretical discussions relating to the Conflict of

.or is renvoi's significance merely theoretical; the renvoi situa-
tion does arise in actual cases. The easiest way to create a renvoi is
through a difference in two states' choice-of-Iaw rules. If, for instance,
State A holds that the law to be applied to a tort is the law of the place
of injury, while State B holds that the appropriate law is the law of the
20 Which, I admit, is not saying much.
In a logical system, the derivation of a paradox is catastrophic: because any
result can be logically derived from a paradox, all the conclusions generated by the
svstem become suspect. for a succinct example of the ways in which self-referentiality
can compromise the deductive soundness of a system, consider the following two
propositions:
Pl: Both PI and P2 are false.
P2: God exists,
PI cannot be true, for then it would assert its own falsity, engendering paradox.
So PI must be false. But then one of the two propositions must be true, and the only
remaining candidate is P2. Voila! This "proof' of the existence of God is generally
attributed to Buridan, SeeJoH BURIDA ON SEl.F-REFERE; CE 91-93 (G. E.. Hughes
ed" 1982),
22 Lorenzen, 51l/Jra note 2, at 192; see aLm, P.g., I ERNST RJ\KEL, THE CONFLICT OF
LAWS 70 (1945) (characterizing renvoi as "the most famous dispute in conflicts law").
RESOLVING RENVOI
place of the act causing a tort with an act in A and an injury in
B will bounce back and forth between the two states. As Ernest Lor-
enzen, perhaps renvoi's fiercest critic, notes, "[t]he problem is a gen-
eral one .... It arises whenever the rules of Private International Law
of the countries in question
In fact, Lorenzen understates the prevalence of renvoi, which can
arise, even when choice-of-Iaw rules are identical, as a consequence of
differences in internal law or Suppose, for exam-
ple, that t\,,,O states both follow the territorial choice-of-Iaw rule for
contracts, according to which the validity of a contract is determined
by the law of the place of its formation. Both additionally agree that a
contract is formed in the place where the last act necessary to forma-
tion occurs. They agree even that acceptance is the crucial last act.
Nonetheless, renvoi occurs if they disagree on what constitutes accept-
ance. If, for instance, State A follows the mailbox rule, under which a
contract is formed when acceptance is placed in the mail, and State B
adheres to the minority approach under \,,,hich acceptance is effective
only \ovhen received, the two states' laws will disagree about where the
contract was formed. And if acceptance was mailed in State Band
received in State A, the disagreement \,,,ill take the form of renvoi:
each state's law will conclude that the contract was formed in the
other state and should be governed bv that state's law.
2
'i
c ,
Even substantive uniformity is not enough. Courts in states that
foHmv the same choice-of-Iaw rules, whose internal Jaw is in perfect
accord, may still reach different conclusions about the appropriate
law to apply if they characterize a cause of action differently. If one
state's courts see the case as presenting a tort issue, and the other
state's courts as a contract action, they may again each conclude that
23 Lorenzen, SUjJUl note 2, at 19J.
24 .)N' Rhoda S. Barish, Comment, Renvoi ({nd the A1odem. AjJjJroaches /.0 Choice-or
I.aw, 30 A\1. l!. L. REV. J049, ]064 (198J) (describing characterization renvoi).
25 "Vhat if the rules are reversed, so that State 13 follows the mailbox rule and
State A. cloes not) Now each state's law will see a contract formed within its borders
and snbject lO its law. Insu:ad of the apparent mutual disclaimer oflegislativejurisdic-
lion in the lext, there arc overlapping assertions ofjurisdiction-what contlicts litera-
ture calls a "nm11.ll" or ,. I"Ol1jlit jJosil1j" instead of a H facun.e" or "1"01Ij1il
FR! EDRICII K..J U:NC;ER, CIIOICE OF L-\ \\"\,,'0 ]\tlt"l.TIST.·\TE JlJSTICE (199:1) ..Juenger
elsewhere seems to suggest that the importation of the cumlll and lacune into Al1lt'ri-
call conflicts law was the responsibility of Brainerd Currie and that rhe territorial ap-
proach a\"()ided such problems. '<-;ee Friedrich K. .lllengn, HOlll j)o You nale {( r:,'l/ll/rr7.
37 WILL\\IFTTE 1.. RE\". H9. lOS (20(H) ("L:nliKc Beale's territoriaJislll. . in Curri{"s
sclwnw of things, sen')"a] sutes may be sinllt!uneoush' interested, or for that Ill:ltler
disinteresled, ill appl\"ing t1wir policies to a particular case."). As t1w foregoillg ckln-
ollstrates. simiLtr results <an occur within the ILTri[orial s\·slem.
NOTRE DAME L,\\\' REVIle\\-
the other state's law applies.
2fj
Likewise, disagreement over the classi-
fication of an issue as substantive or procedural can have the same
effects, since courts will follow local procedure even when applying
foreign substantive law.
27
To eliminate the possibility of renvoi, in
short, requires complete uniformity in choice-of-law methodology, in-
ternal law, and characterization techniques-at which point, obvi-
ously, there is very little need for choice of law. Renvoi, then, is aptly
termed one of the "pervasive problems"2H in choice of law; it will be
with us as long as courts consult choice-of-Iaw rules to determine
which law applies.
One of the things this Article aspires to do, of course, is to under-
mine this conventional understanding of the choice-of.-Iaw project.
When we encounter paradox, it is worthwhile to pause and think
about whether what we have run into is a real difficulty or one of our
own creation. I will eventually suggest that renvoi is the latter. In
order to understand the significance of that conclusion, however, it is
necessary first to consider how renvoi looks from the perspective of
the territorial and the more modern approaches to choice of law and
to examine their attempts to solve the problem.
II. RENVOI WITHIN SYSTEMS
A. The Territo'rial Approach
What is usually called the territorial (and sometimes the tradi-
tional or vested rights) approach to choice of law was not as mono-
lithic as the label might suggest. Its preeminent exponents differed in
26 Or, as mentioned in the previous note, each might conclude that its own law
applied. For a classic example of the power of characterization, see Levy v. Daniels'
U-Drive Auto Renting Co., ]43 A. 163, 164-65 (Conn. 1928) (recharacterizing a tort
claim as contractual in nature). For discussions of characterization more generally,
see, for example, A. H. ROBERTSON, CHARACTERIZATION IN THE CONFLICT OF LAWS
(1940). The scholarship on characterization has been, if possible, less successful than
that on conflicts generally; a leading casebook calls it "large but uninformative."
DAVID P. CURRIE ET ,\L., CO 'FLICT OF LAws 43 (6th ed. 2001). 1 believe that characteri-
zation is another area where the traditional choice-of-law vocabulary has led us astray
and that the problem is better understood as essentially an election of remedies situa-
tion. Explaining and defending this assertion will require another article.
27 See generally RUSSELL J. VVEINTRAUB, COMMENTARY 0, THE CONFLICT OF L-\ws
59-94 (4th ed. 2001) (discussing categories of "substance" and "procedure," as well as
renvoi) .
28 ld. at 52. Renvoi has also been classed with "wrinkles in the theory," LEA
BRILMAYER & JACK GOLDSMITH, CONFLICT OF LAWS: CASES AND MATERIALS 119 (5th ed.
2002), and "problems old and new," CURRIE ET AL., supra note 26, at 244.
RESOLVING RENVOI
significant particulars, including their stance towards renvoi.
29
Myex-
emplar will be Joseph Beale, who, as the Reporter for the First Restate-
ment and author of a three-volume treatise commenting on the
Restatement, exerted an unparalleled influence on the development
of American conflicts thought.
Beale's approach begins with the axiom
30
of territoriality, the
principle that "the law of a state prevails throughout its boundaries
and, generally speaking, not outside them."31 Beale believed it impos-
29 joseph Beale, as \-vill be seen, took a fairly strong position against renvoi as a
matter of theory-though, as we shall also see, the logic of his position is less than
obvious. Goodrich's hornbook, at least in its later editions, viewed it more pragmati-
cally and more favorably. See HERBERT F. GOODRICH, HA. DBOOK OF THE CONFLICT OF
L<\ws 19-20 (3d ed. 1949) ("On policy grounds ... a better case for limited use of
renvoi can be made."). Goodrich's move towards pragmatism, and the evolution of
conflicts thinking more generally, is neatly encapsulated in the ways the various
prefaces of his hornbook acknowledge Beale, shifting from unadulterated praise in
the first edition to the remark that "no pioneer's work becomes the last word in the
subject and that is a good thing too" in the third. [d. at v, ix. And Dicey, describing
the English practice, argued that courts look to the entire Jaw of foreign jurisdictions.
See A.V. DICEY, A DICEST OF THE LAW OF ENGLAND WITH REFERENCE TO THE CONFI.ICT
OF LAWS 79-81, 715-23 (2d ed. ]908); see also Perry Dane, Vested Rights, 'Vestedness,'
and Choice oj Law, 96 YALE LJ 1191, 1199 n.34 (1987) (noting disagreement between
Beale and Dicey).
30 "A.,xiom" is the appropriate word. Recent scholarship has suggested that for-
malism, as conventionally understood, was more a creation of its critics than an intel-
lectual movement to which anyone actually subscribed. See, e.g., ANTHONY J. SEBOK,
LEGAL PosrnVISM IN A\1ERlCAN JURISPRUDENCE 57-112 (1998); Albert W. Alschuler,
Rediscovering Blackstone, 145 U. PA. L REV. 1, 1-2 (1996) (responding to this "myth").
A look at Beale's treatise, though, displays the extent to which he believed his basic
principles to be both unquestionable and capable of generating fairly specific rules
through a rational deductive process. See 1JOSEPH H. BEi\l...E, A TREATISE ON THE CON·
FLICT OF LAWS § l.14, at 12 (1935).
In the introduction, the general nature of law, oflegal rights, and ofjurisdic-
tion will be considered; this will be followed by a detailed theoretical study of
legal in which an attempt will be made to establish the time and place
in which legal righL<; come into existence, the legal effect of acts, and the
of merely remedial action.
I irI.;\PlJ I iii. § 3.4, at 25 ("[1]n great pan [law] consisL<; in a homogeneous, scientific,
and all-embracing body of principle."). Indeed, his treatise seLs out
rules with the certitude of a logical demonstration. Given this undersLanding of la\\',
the accusations of dogmatism to which he was are perhaps off the mark; no
one calls a logician dogmatic for believing in his proof. Beale's failing ,vas his belief
that law resembled logic. See Stephen A. Siegel, john ChijJIIUln Gra)' find Ihf Mo/al Basis
of Classi{{J{ Ifga! Thought, 86 IOWA L. RE\'. 1S13, 1592 (20tJl) (noting that Beale "came
as close as allyolw to understanding the common law as composed of principles that
transcended the actual principles upon which any partic:ulal- common law.iurisdietion
premiscd it.s decisions").
I I BE.\IF. sujJra note at
:"<lllln: 1> .. \'\11-: I..·\W RI·:"IF,\\
sible, in facl, for lhe law of one state to operate as law within the bor-
clers of another state: "It is quite obviolls that since the only law that
can be applicable in a state is the law of that state, no law of a foreign
state can have there the force of law. ":\:-2 From this premise flows the
conclusion that only the law of the state where an event occulTecl can
attach legal consequences to that event, and choice of law becomes
largely a matter of determining the place of occurrence. Much of
Beale's treatise is therefore concerned with establishing "localizing"
rules to determine where, for example, torts are committed or con-
tracts formed.
Territoriality might seem to offer an easy answer to the renvoi
problem. If foreign law can never apply within the forum state, then
obviously the forum cannot apply foreign choice-of-law rules. But this
answer, as should be immediately apparent, comes at the price of scut-
tling the whole choice-of-law venture; if the forum can never apply
foreign law, how is it to adjudicate cases dealing with events that oc-
curred in other states?
Beale's answer was that when a court, for example, awarded dam-
ages to a plaintiff for an out-of-state tort, it was not applying the law of
the foreign state as law at all. Instead," [t] he foreign law is a fact in
the That is, it is a fact that foreign law entitles the
plaintiff to recover, and this fact allows him to invoke the remedial law
of the forum. The forum applies its own lay\' in order to vindicate
rights that have vested under the law of another state.
34
The advantage of this description over one that allows the possi-
bility of foreign law operating as law is not readily apparent and may
be a matter more of rhetoric than theory.3:> Beale, however, appar-
ently believed that it offered a reason to reject renvoi. "The vice in
the decisions [accepting renvoi] ," he wrote, "results from the assump-
:'2 I iri. § 5.4, at 53. For a contemporaneous discussion of territoriality, see Elliott
E. Cheatham, American TlzeOllPs oj Conflict oj raws: Tlzei1' Role and Utilit)" 58 HAR\'. L.
RE\'. 361, 379 (1945) ("Legal rights are created by the operation of law on acts done
in the territory within iLs jurisdiction, and only one law can apply to an act."). For a
modern one, see, for example, LEA BRIl.MAYER, COI\FLlCT OF L\ws 5.1.2, at 247-53
(2d cd. 1995).
33 1 BEALE, supm note 30, § 5.4, at 53.
34 1 iri. § 8A.28, at 86. For a more detailed discussion of lkale's taxonomy of
rights, see Roosevelt, supra note 13, at 2456.
35 See Cheatham, supm note 32, at 367 (suggesting that vested rights theorists
disapproved of the comity-based conception on the grounds that speaking in terms of
foreign Jaw operating by permission of the forum would "arouse unduly the suspicion
alld vigilance of the judge against this foreign activity" and "give to the forum judge
the impression that his discretion is far wider than that given to the judge in other
fields of the law").
RESOLVING RENVOI
tion that the foreign law has legal force in a decision of the case;
whereas ... the only Conflict-of-Laws rule that can possibly be applied
is the law of the forum and the foreign law is called in simply for
furnishing a factual rule."%
Why Beale thought the fact/law distinction solved the problem is
obscure at best. The question, phrased in Beale's terminology, is
whether a court determining whether rights have vested under for-
eign law should consult the entirety of foreign law or merely foreign
internal law. A'Sserting that foreign law is "a fact in the transaction"
hardly shmvs that the latter is the correct course. Indeed, the territori-
alist premise leads most naturally to the opposite conclusion. If the
forum is supposed to enforce rights vested under foreign la\,v, it
should not be a matter of indifference that the foreign court, follow-
ing its choice-of-la\-\' rules, would conclude that no rights exist under
its law. A'S En",in Griswold observed, "[i] t is not a little difficult to
understand why the exponents of the 'vested rights' point of view in
conflict of laws have also been leading opponents of the renvoi in any
sense."37
Nor is Beale's answer to renvoi created by interstate differences
over the mailbox rule any more lucid. If different states' laws differ
over where a contract was formed, he wrote, "[i] n a territorial system
of law there can be little doubt that this conflict is resolved in favor of
the law of the Little doubt, perhaps; little explanation, cer-
tainly. It is hard to avoid the conclusion that Beale was motivated in
part by the fact that wholesale acceptance of renvoi seems to lead no-
where. As he put it, "we shall be inextricably involved in a circle and
can never decide the case, since each party will constantly rcfllse to
apply its own law and insist upon the law of the other party. This of
course is an impossible condition.
Beale was not alone; the territorialists' reaction to renvoi in gen-
eral consisted more of derision than analysis. Frederic Coudert called
it "a resultant of legal casuistry and over-subtlety" as well as "a doctrine
36 1 !k,'\LE, slitI'm nOle 30, 7.3, at !16.
37 Griswold, suln/[ note 11, at 1187 & n.70; <;('(' nlso Note. SUIJl(l note (), at 4:'J.7
(arguing that w!len the foruill is merely enforcing a right created elsewhere, "a .iUSl
adjudication can 1)(' made only hy deciding as to that right as the foreign COlin \I'ottlcl
have decided").
3H 1 1:h:.-\I.I-. supra note 30, § 7,1, al 'J'J. Reale's further explanation. in the st,etion
of his treatise (!<>\'oted to the ql Jestion of what law det crill i n l'S (he ()f
contracting. is disllIrbinglv typical of his treatment or dirtiClllt issll<:'S: "There is. ill-
deed, no altnn;!tive." 2 irl. al J()..j6, Surprisingh', tile RI'S[;l1CIIWIII limls olle:
it n'COIlll11enc!<; cOllsulting "the general la\\' of Conlracts." prcslll1labh' Illl'
gl'l1er:d COl1lll1on 1;1\\', RFSTXJT\IE",T OF C:ONFi.II:T OF L\\\''i :),] J Clllt d (1
I BI-:,\I.F . IlIlml nOlc' 7.'1,. al :)().
NOTRE DA IE I..-\\V REVIEW
over-complicated, unsound and revolutionary,"40 and others have
termed it "heretic," "puerile," "paradoxical," and "burlesque.""1
Renvoi's unsoundness as a matter of logic was frequently asserted to
be self-evident; as Lorenzen put it, the doctrine's "days ought to be
few after its deceptive character is fully It is not fanci-
ful to hear a sense of betrayal in these words, and the reaction is un-
derstandable. A logical system (,vhat Beale and Lorenzen frequently
referred to as a that throws up a paradox has indeed be-
trayed its creators and demonstrated a fundamental untrustworthi-
ness,'H and banishment is the only appropriate response.
4
:>
But banishing a problem requires more than a refusal to think
about it. Renvoi is not a discrete axiom that can be excised from a
logical system; it is a consequence of a particular understanding of the
choice-of-Iaw task. In contrast to the system-building logicians who en-
40 Frederic R. Coudert, Som.e Considerations in the Law oj Dom.icil, 36 Y-\LE LJ. 949,
953 (1927).
41 SeejuEl"CER, supra note 25, at 78.
42 Ernest G. Lorenzen, The Renvoi Doctrinp. in the Conflict oj Laws-)\IIeaning oj "Thp.
f,aw oj a CountlY, "27 YALE LJ. 509,529 (1918); see aLw Ernest G. Lorenzen, Renvoi in
Divorce Proceedings Based upon Constructive Service, 31 YALE L..J. 191, 192 (1921) ("A mere
statement of the operation of the 'renvoi doctrine' should be sufficient to condemn
it."); Schreiber, supra note 4, at 570 (noting the "insidious nature of the renvoi").
43 SP'f, e.g., 1 BEi\LE, sUjJTa note 30, § 3.4, at 24-25 (stating that law "is not a mere
collection of arbitrary rules, but a body of scientific principle"); Lorenzen, sujna note
2, at 204 (discussing "the science of the Private International Law"). The proportion
of vituperation to explanation prompted one scholar to comment that "the present
writer doubts whether [renvoi) has been surpassed by any other topic in the law in the
amount of material written upon it which, upon analysis, is seen to consist of nothing
but dogmatic statement of the result desired to be reached." Cormack, supra note 3,
at 249.
44 The untrustworthiness follows from the fact that a deductive system containing
a contradiction can prove any proposition. See supra note 21 (proving the existence of
God). In addition to the sense of betrayal, there may have been a bit of xenophobia
at work as well; the characterizations of renvoi as insidious and over subtle might be
summarized by calling it too French, and Cheshire explicitly argued that it was unde-
sirable to attempt to follow continental conflicts law because European courts did not
even adhere to stare decisis, making it difficult to ascertain their law. Griswold, sUjJra
note 11, at 1178-79.
45 The First Restatement, explaining that "the only Conflict of Laws used in the
det.ermination of the case is the Conflict of Laws of the forum," provided that "the
foreign law to be applied is the law applicable to the matter in hand and not the
Conflict of Laws of the foreign state." RESTATEMEl"T OF CONFLICT OF LAws § 7 (J934).
Section 8, with less explanation, provided two exceptions to this general rule: cases
involving "title to land" and "the validity of a decree of divorce" were to be decided in
accordance with the law of the situs or the parties' domicile "including the Conflict of
Laws rules of that state." Jd. § 8.
RES 0 LV J N R E N V 0 J
countered the paradoxes of set theory,46 the territorialists responding
to renvoi did not attempt to adjust their basic postulates.
47
Instead,
they simply vilified the consequence, focusing their attention on
symptoms rather than root causes.
Supposing that legal theories and thought should conform to the
standards of logic or science is, of course, part of the error tradition-
ally ascribed to the formalists, so there is some irony in faulting them
for not adhering to those standards. But given that the territorial ap-
proach does aspire to a high degree of theoretical coherence-con-
sider Beale's disdain for those ,,,'ho believed law "vas "a mere collection
of arbitrary rules"48-whether it can handle renvoi in a principled
manner is an important test. The territorialists did not provide a
good answer, but the question remains whether they could have.
Conceptually, the basic problem the territorialists encountered
was that they lacked an explanation of why courts should disregard
foreign choice-of-Iaw rules after having decided to apply foreign law.
(Or, in a slightly different phrasing, why foreign choice-of-Iaw rules
should be treated differently from foreign internal law.) The problem
was especially acute for Beale's vested rights theory, for the idea that
the forum's task is to enforce rights acquired under foreign law is
hard to square with the practice of reaching results different from
those the foreign court would reach; in such cases the forum is enforc-
ing rights whose existence the foreign court would deny.49
46 My reference to the system builders is intended primarily to include those en-
gaged in the logicist project of deriving arithmetic from first-order logic, i.e., Gottlob
Frege, and the team of Bertrand Russell and Alfred North vVhitehead. Russell was
responsible for the collapse of Frege's attempt, pointing out that a version of the liar
paradox could be generated by one of Frege's axioms. See generally 5 W. T. JONES &
ROBERT.J. FOCELlN, A HISTORY OF ,,yESTERN PHILOSOPHY: THE TWE TIETH CE TURY TO
QlJINE AND DERRIO!\ 175-80 (3d ed. ] 997) (discussing Russell's attempt to overcome
the paradox via the Theory of Types); RAy MONK, BERTRAND RUSSELL: THE SPIRIT OF
SOl.lTUDE 142-44, ] 52-54 (1996) (describing Russell and vVhitehead's project and
Russell's interaction with Frege).
47 Dicey's treatise did eventually abandon iL'i reliance on the idea of vested rights,
which has some palliative effect. See.John Swan, Federalism and the Conflict oj fJI./lIs: The
Curious Position ojlhp,')'ulmnne Court ojCal/ada, 46 S.c. L. REV. 923,948-49 (1995). The
correct response, I will suggest, is to up on the idea thaI State A law can prescribe
that State B law "applies." See infra Part V.
48 1 BEi\LE, supm. note 30, 3.4, at 24-20.
49 This point ,,,as raised against the territorialist.'i but "never adequately answered,
and by Professor Beale not at aIL" David F. Cavers, Book Review, 56 H!\R\'. L RE\'.
J ] 70, ] 171 (1943) (reviewing WALTER WI lEU.rR COOK, THE LOCICI\l. A0JD 1.E( :..\1. B.\SES
OF 1'1 IF CONFI.ICT OF L\ws (1942)); Sf'(', f.g., Cheatham, su.lnG nOle 32, ,it 3NO.
vVhen the renvoi element is rejected and F employs the X internal law 10
dl'll'rminl" the of the parties. it GlllI10t be said that Fis entill'cing an X-
The territorialists tended to rely on the observation th;-lt O!lce
renvoi is accepted, there is no logical stopping point; the rest is mostly
bluster.
so
The territorialist rejection of renvoi is consequently uncon-
vincing, for contumely is not argument."[ Arguments exist, hmvever.
vVithin the conventional understanding of the venture,
there are three basic conceptual moves to make in response to the
problem of renvoi, three arguments to bolster the forum's authority
and justify its disregard for foreign choice-of-Iaw rules and the results
that would be reached by foreign courts. These moves were available
to the territorialists, and some of them were used. They remain availa-
ble to modern theorists, and again, some have been invoked. In the
end, however, none succeeds.
My purpose in assessing these resources is twofold. First, I intend
to show that the problem of renvoi has not been resolved. Second, I
want to highlight the point that there are conceptual similarities in
the way that different systems have tried to deal with the problem.
Succeeding generations of conflicts theory have made, or could make,
the same small number of moves to deal with renvoi, none of which is
ultimately successful. And eventually I want to suggest that the reason
the different systems have such similar responses is that the problem
comes from something they have in common: the supposition that
forum law can determine the scope of foreign law. That suggestion,
of course, is for a later section.
1. The Inherent Distinctiveness of Choice of Law
The initial reason a territorialist might give for ignoring the for-
eign state's choice-of-Iaw rules is that the distinction betvveen foreign
internal law and foreign choice of law inheres in the vested rights ap-
proach. The aim is to enforce the rights that vest under foreign inter-
creatcd right, for the only legal right the party could have enforced in an X
court was based on the internal law of the other state, Y.
fd.; Griswold, sU1Jra note 11, at 1187 (" [AJ reference to a foreign law means that the
local court should reach the conclusion which the foreign court would reach on thc
same facts.").
50 Lorenzen asserted that courts could not accept renvoi because "upon strict
principles of logic it can lead to no solution of the problem.... There would appear
to be no escape in legal theory from this circlc or endless chain of references." Lor-
enzcn, supra note 2, at 197-98. Beale characteristically invoked impossibility: "[vV]e
shall be inextricably involved in a circle and can never decide the case, since each
party will constantly refuse to apply its own law and insist upon the law of the other
pany. This of course is an impossible condition." 1 BEALE, supra note 30, § 7.:1, at :=16.
51 Or as Tom Stoppard put it, "[a] gibe is not a rebuttal." TOM STOPI'AI{D, ARCA-
DL\ 37 (1993).
RESOLVING RENVOI
nal law, and therefore it is internal law that should be consulted.
Choice-of-Iaw rules, a territorialist might say, are directed to courts
and not parties; they have nothing to do with substantive rights.
52
This move has some superficial appeal, but it is in fact unfaithful
to the methodology it invokes. For a territorialist, the choice-of-Iaw
calculus identifies the jurisdiction with authority to regulate a particu-
lar transaction. (It is for that reason that territorialism is called a juris-
diction-selecting approach.) The jurisdiction thus identified is the
only one whose laws attach legal consequences to the transaction."d
The foreign state's conclusion that its la\v does not apply then is, ac-
cording to the internal logic of the vested rights approach, tanta-
mount to a conclusion that no rights have vested under its law. That
is, the territorial approach takes choice-of-Iaw rules as deeply relevant
to the question of what rights the parties possess. It is no answer then
to say that territorialism is concerned with vested rights and not
choice-of-Iaw rules, for choice-of-law rules determine where and
whether rights vest.
2. The Appeal to Objectivity
If foreign choice-of-Iaw rules cannot be simply ignored as irrele-
van t to the forum's analysis, the next plausible tack is to assert that the
foreign state's choice-of-law rules can be rejected because they are, in
some sense, incorrect.')4 I call this move the appeal to objectivity be-
52 Interestingly, the assenion of inherent distinctiveness is essentially the tack
taken by the most sustained attempLs to resolve the renvoi problem by application of
formal logic. See Cowan, SUI)1([ note] 6, at 44-45 (invoking Russell and vVhitehead's
Theory of Types as justification for ignoring foreign choice-of-Iaw rules); Hicks, sUfJra
note 5, at 278-80, 284-89 (same). As t.he text demonstrates, the same move can be
made without invoking Russell and '<\Thitehead, which suggests that tacking on a phil-
osophical pedigree adds little. Moreover, focusing on the logical aspect of the prob-
lem detaches it from the context. of choice of law and obscures the extent to which
/.e[!;al analysis can tell us something about which solutions are plausible and which are
noT..
53 See 1 BEJ\LE, supra note 30, § 4.12, at 46 ("By its very nature law must apply to
everything and must exclusively apply to everything within the boundary of iLS
jurisdiction.") .
:-)·t A slightly more subtle way of making the argument mighl charaClerize renvoi
as a coni1iet. bet.ween choice-of-Iaw rules, requiring resolution in the same wav as a
conflict between int.ernal laws. The rejection of renvoi, t.hen, would be seen as a de-
t.ermination t.hat forum choice-of-law rules should prevail if they conl1iet. with foreign
nlles. not because Ihe foreign nlles are objeclively wrong but simply becallse a choice
IllUSt be mack. .')pe /;erl11a Hill KLlY, "1'11.(> 1,·nlrai!.1 of 0 (;oot": R"j1.eclio'l/s Oil !?Nulillg l.m
Il([g"/lf' 1ft/HIPS, MLR<:ER 1.. RE\'. 891, Y1-1 (I Y97) (staling th,11 "the siula-
lion poses a conflict of conflict of laws rules"). This approach docs nol avoid t1w
plol;!l'llls I identify; rat.her. il highlighls thf'llL because it asserts so clearly Ihal
NOTRE DA1\IE 1..-\\\" REVIEW
cause it asserts, in defiance of the contemporary methodological plu-
ralism, that there is some o ~ j e c t i v e standard (usually resembling
forum lav\r) against which foreign choice-of-Iaw rules can be measured.
In fact, the move defies more than the state of modern conflicts law,
for it runs against one of the most basic principles of contemporary
jurisprudence: the principle that state courts are authoritative in the
exposition of their own law.
That principle, however, is of relatively recent vintage, and the
territorialists had available a very effective argument for the appeal to
objectivity. It is not clear to me whether they actually made the argu-
ment. Larry Kramer, who does present it, attributes it to Beale, but
this is perhaps overgenerous; Beale's analysis of renvoi, as discussed
earlier, turns on the law/fact distinction.
55
The stronger argument
relies not on that distinction, but on the status of conflicts as pan of
the general common law.
Beale's treatise recognizes several different kinds of law. "Theo-
reticallaw," for instance, he defines as "the body of principles worked
out by the light of reason and by general usage, without special refer-
ence to the actual law in any particular state."56 By contrast,
"[p] ositive law" is "the law as actually administered in a particular
country.""'7 Last, in some ways intermediate between the positive and
the theoretical law is what Beale refers to as the "general common
law," an unwritten body of law "which is accepted by all so-called com-
mon-lawjurisdictions but is the particular and peculiar law of none."58
The doctrines of the common law, Beale writes, "are authoritative in
each state whose law is based upon it; and the decisions of courts of all
such states are important evidences of the law."59
For Beale, then, the general common law, which included con-
flict of laws, existed independent of any particular state or lawmaking
authority. It was common to, and authoritative in, every common law
jurisdiction whose courts struggled to discern it, but it had no single
source, and hence no single authoritative interpreter. And thus a fo-
rum court could-indeed, might well be required to by the binding
precedents of the forum's higher courts-conclude that foreign
courts had erred in their articulation or application of choice-of-Iaw
whether foreign law applies is a question to he answered by reference to forum law.
This assertion is what I identify as the fundamental source of the renvoi problem. See
infra Part V.
55 See Kramer, supm note 3, at 9ii4-ii9.
56 1 BEALE, sujJm note 30, § 1.12, at 9.
57 1 id.
58 1 it!. § 4.1, at 27.
59 1 id. § 1.12, at 10.
RESOLVING RENVOI
rules. Making choice of law part of the general common law essen-
tially imposes uniformity on the forum and foreign courts, while si-
multaneously granting them interpretive independence with regard
to the content of the uniform law. This move goes some way towards
eliminating the problem of the renvoi.
60
This approach, of course, relies on Beale's understanding of the
general common law as controlling in common law jurisdictions but
lacking a single supreme interpreter. It ,·vas, we could say, authorita-
tive law without an author.
61
Beale did not dispute that state courts
are the authoritative expositors of their own law; he relied on the
point that the general common law is no state's own law. The deci-
sions of state courts applying common law produced the positive law
of the state, and lower state courts were bound by the decisions of
higher state courts as to the content of that law. But they were bound
by virtue of their inferior status, not because state supreme courts had
any power to make the common law of the state. Indeed, Beale re-
jected the proposition that courts make lav,', both explicitly and at
length.
62
It was for this reason that court,> of other jurisdictions, not
subject to the state hierarchy, were entitled to interpretive
independence.
It is not clear to me, I have said, that the territorialists ever made
the argument for objectivity based on the general common law.
Neither, however, is it necessary to decide whether they did; what is
important is to see that the argument is ultimately unavailing. An ini-
tial problem with this resolution of the renvoi problem is that it is
somewhat too powerful. Choice-of-law rules are part of the general
common law, but so too is the large portion of tort and contract law
that has not been codified. Beale's theory of the general common law
did not distinguish between choice of law and internal law, and it sug-
60 The problem is not eliminated entirely, and not to the extent it might seem at
first blush, because renvoi can arise even with uniform choice-of-Iaw rules. See :-ill/nil
Part l. In addition, the "uniformity" produced by the appeal to objectivity is illusory
in practice because the foreign courts will almost certainly continue to apply their
own interpretations of the general common law and disregard those of the forum.
61 The lwst modern analog is probably something like the Restatements. We
could imagine a situation in which the couns of several states announced that they
would follow a Restatement while differing over what the relevant Restatement sec-
tion meant. In applying Massachusetts law, a ew York coun would nowadays follow
the Massachusetts decisions construing the Restatement; under the analog to Beale's
approach, it would instead follow those of ew York.
62 I BEAl.E, sa/no nule :'lO, S3.4, at 24 ("Cuurts are sworn to enforce the law, not
to make it."); I irl. S4.6, at 39 (stating that the possibility of "a difference of opinion
between the stale court and the federal court sitting in lhe state as to the law of the
state ... is quite incompatible with the coun making the law").
N () [R I' n A !'vi E 1..'\ \\. REV lEW IVOL. I)(l::)
gested that the forum court should follow its O\yn interpretation of"
substantive general law as well. That is, if the tort law of the forum
differs from that of the foreign state, the forum should apply its own
law, since that represents the forum's best understanding of the gen-
eral common law that prevails in the foreign state and the forum
alike. The appeal to general law, in short, tends to obliterate the
whole idea of choice of law.
The elimination of choice of law is not a fatal defect. Indeed, it
may not be a defect at all; this Article will end with a prescription that
could be construed as calling for much the same thingY' The more
serious problem with the appeal to general law is not that it accom-
plishes too much, but rather that from the modern perspective it ac-
com.plishes nothing at all.
The regime under which a forum will apply its own understand-
ing of general law rather than the understanding of the geographi-
cally appropriate state court is familiar to students of legal history. It
is the regime of Swift v. Tyson,64 which the positivists, Oliver Wendell
HolInes notably among them, attacked, and which the Supreme Court
rejected in Erie Railroad Co. v. Tompkins. ()c, And that is the second and
more devastating objection to the appeal to general law: we have it on
good authority that there is no such thing.
To reduce Erie to the proposition that the general law does not
exist is, of course, to engage in caricature. What Erie stands for is a
complicated and contested question.f)l; Some of its language might
63 Not, I hasten to add, by imposing the uniformity of a general law upon every
state. See infra Part V.
64 41 U.S. (16 Pet.) 1 (1842).
65 304 U.S. 64 (1938). Beale relied on Swift at a number of points, for example, 1
BEALE, supra note 30, § 3.3, at 22 & n.l, § 3.5, at 26, § 4.6, at 39 & n.l, and, looking at
the cases on which Beale constructed his system, one might think he had a rare knack
for picking losers. In addition to Swift, he favored Pnmoyerv. Ne)f, 95 U.S. 714 (1877),
see 1 BEALE, supra note 30, § 42.2, at 276 (citing Pennoyer) , which hung on until 1945
when the Supreme Court decided Intemational Shoe Co. v. Washington, 326 U.S. 310
(1945). A more accurate statement would be that Beale had the misfortune that his
great work was one of the last flowerings of legal classicism, a worldview soon to be
swept aside. See generally MORTON .J. HORWITZ, THE TRA1'\JSFORMATION OF AMERICAN
LAw, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 9-31 (1992) (describing classical
legal thought); WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL Lr:CAL THOUGHT:
LAW AND IDEOLOGY IN AMERICA, 1886-1937 (1998) (same).
66 For a sampling of the literature, see EDWARD A. PURCH.L,jR., BRANDEIS AND THE
PROGRESSIVE CONSTITUTION: ERiE, TIlE JUDICIAL POWER, AND THE POLITICS OF THE FED-
ERA.L COURTS IN T"VENTIETH-CENTURY AMERICA (2000); Patrick.J. Borchers, 17re Origins
of Diversity Jurisdiction, the Rise of Legal Positivism, and a Bmve New World for Erie and
Klaxon, 72 TEX. L. REv. 79 (1993); Bradford R. Clark, Ascertaining the Ioaws of the Sev-
eml States: Positivism and Judicial Federalism After Erie, 145 U. PA. L. REV. 1459 (1997);
RESOLVING RENVOI
suggest that its relevance for state courts, my chief focus, is marginal at
best. To the extent that Erie relies on the idea that making general
common law is beyond the power of the federal government entirely,
and a fortiori beyond the power of federal courts, it might seem not to
apply to state courts at all. 67 But it also seems to hold (though the
constitutional source for this proposition is unclear) that state high
court decisions are of equal dignity with state statutes.
68
If that is so,
the Full Faith and Credit Clause would presumably bar state courts
from refusing to follow the high courts of other states when applying
those states' law.(-)l} Nor, of course, do states have the power to make
law for other states. Thus, at the least, Erie establishes that state
courts' authority \,vith respect to the interpretation of their own law
cannot be circumvented by the suggestion that conflicts is in some
sense not state law.
John Hart "f'he JnejJressibli' AI)'lh of Eric, H7 H,\Rv. 1.. RF\'. 693 (1974); Henry J.
Friendly, in Praise 0JEriC:'and aJ lhp New F"Pdeml Common J.mu, 39 NYU. L. RE\'. 3R3
(1964);Jack Goldsmith & Steven Walt, Eric and lhe Irrpli'7l(/1m' aJ Legal Posilivism, 84 v.A..
1.. RE\·. 673 (199R); Larry Kramer, Til£' Lrwlllwki'llg Power aJlhe Federal C011115, 12 P.-\CE 1..
REV. 263, 2R3 (1992); Lawrence Lessig, Undflslanding Changed Rf'odings: Fir/elil)' and
Thpory, 47 STAN. L. Rn'. 395, 426-3R (1995); PaulJ. Mishkin, S017lP!''''urlherLasl Words
on Erie-The Ihrfad, R7 HAR\'. 1.. RJ::v. 1682 (1974); Louise Weinberg, Federal Common
Low, 83 Nw. U. 1.. REV. 805 (1989).
67 See Erip., :104 U.S. at 78 ("Congress has no power to declare substantive rules of
common law applicable in a State.... And no clause in the Constitution purports to
confer such a power upon the federal courts.").
6R Sep. id. at 79.
'The common law so far as it is enforced in a State. whether called common
law or not, is not the common law generally but the law of that State existing
by the authority of that State. [T]he authority and only authority is the
State, and if thal be so, the voice adopted by the State as its own (whether it
be of its Legislalure or of Supreme Coun) should utter the lasl word.'
Jr!. (quoting Black & \"Ihite Taxicab & Transfer Co. v. Brown & Yellow Taxicab &
Transfer Co., 276 l] .S. 5J8, ');):1-35 (l 928) (Holmes,.J.. dissenting)).
69 ,')'ee Sun Oil Co. v. vVonman. 4R6 U.S. 717, 731 (J98R) (stating that construc-
tion that "contradict[s] law of the olher State thal is clearly established and lhat. has
been brough t to lhe COlll-t's attention" violates full rai th and credit). is often
cited for the proposition that state are authoriwtive with respecl to their own
law. That is a misconceplion; Erie did not establish this proposition but simply in-
creased the significance of what was already accepted by expanding the range 01 is·
sues goverrH'd by Slate (rather than general) law. For a discussion of the early
trealment I)\' the Supreme Lourt of stale court interpretations of stale law, see Banon
H. Thompson. Jr., F!lt' Hi.llm)' oj the jwlirial lmjHlinllp.lIl "/)o(/"I"ill(''' rllld lis l-essolls for lh('
(.",I/I/)(/el UrI/lSI', -+451\;--;.1.. RH. 1373, 138R & n.70 (J992).
I OTR!:". DAME LAW R£VIF\V
3. The Local Law Theory
So foreign choice-of-len'v rules cannot be ignored, and they can-
. not be overridden on the grounds that they are part of a general law
that the foreign courts have misunderstood. One more means exists
to bring the matter back within the authority of the forum: to assert
that the law being applied is, in some sense, "really" forum law.
This move occupies a prominent place in the literature; it is what
is known as the "local law theory." It ,vas presented most completely
by a critic of the territorialists, Walter Wheeler Cook, and it begins
with a point already noted: that a true adherent of the vested rights
approach would consult foreign choice-of-law rules in order to deter-
mine whether rights had vested under foreign law.
70
But rather than
adhering to the vested rights theory and urging acceptance of renvoi,
Cook argued that the widespread failure to do so implied that courts,
whatever they said, were doing something other than enforcing vested
rights.
7l
In fact, Cook argued, courts were applying "the rule of deci-
sion which the given foreign state or country would apply, not to this
very group of facts now before the court of the forum, but to a similar
but purely domestic group of facts involving for the foreign cour-l no foreign
element."7'2 In consequence, Cook concluded, "[ t] he forum thus en-
forces not a foreign right but a right created by its own law,"7;1
70 CourL, applying Beale's approach, Cook argued, "are logically compelled ...
to study the decision of [foreign] courts ... upon the conflict of laws." WALTER
WHEELER COOK, THE LOClCAL AND LECAL BASES OF THE CO FUel' OF L ~ \ v s 19 (1942).
71 As Cheatham put it, citing Cook:
When the renvoi element is rejected and F employs the X internal law to
determine the rights of the parties, it cannot be said that Fis enforcing an X-
created right, for the only legal right the party could have enforced in an X
court was based on the internal law of the other state, Y
Cheatham, supra note 32, at 3RO; see aLw, e.g., Herma Hill Kay, A Defense oj Currie's
Covanmentallnterest Analysis, 215 REC:UEIL DES COURS 19, 31-34 (1989) (describing
Cook's argument).
72 COOK, supra note 70, al 21.
73 Jei. Although the local law theory is generally associated with Cook, it was
prominent in the literature before his lVork. See, e.g., Lorenzen, sU/JUt note 2, at 206.
It follows that whenever the question as to the creation of rights under the
law of a foreign country arises before the tribunals of another State the exis-
tence or nonexistence of such rights depends, properly speaking, not upon
the will of the foreign law-giver, but upon the lex fori, which must be deemed
to have adopted the foreign internal or territorial law for the purpose.
lei.; Schreiber, supra note 4, at 531 ("The truth is that the [forum] court is enforcing
its own law throughout, and is not in any sense enforcing [foreign] law."). Beale of
course maintained a similar position as a matter of metaphysics; because he believed
that foreign law could be given effect only as a fact, the law the forum applied as law
must be local law. Under his approach, "the foreign law cannot and does not operate
20°5]
RESOLVING RENVOI
Is this a distinction without a difference? Some have concluded
that the local law theory amounts to little more than hand waving.
Hessel Yntema called it "empty luggage,"74 and David Cavers offered
an anecdotal analogy that is no less devastating for its humor.
Theories that explain how it is that a foreign mle isn't foreign la,,,,
when it is used in deciding a case in another country might seem
more useful if I could forget the way in which my son resolved a like
problem when, at the age of four, he encountered tuna fish salad.
"Isn't that chicken?" he inquired after the first bite. Told that no,
indeed, it was fish, he restored his world to order and concluded
the matter by remarking to himself, "Fish made of chicken. "75
The theory continues to have its adherents, however; one does
not have to look far to find those who maintain that" [i] n reality, a
state can only create and apply its own law."76 In a less ambitious
form, the theory is hard to deny; that a forum will sometimes apply a
"rule of assimilation" and shape its law to mirror the substance of for-
eign internal law is an important insight.
77
And, most relevant for the
purposes of this Article, the local law theory does have the ability to
resolve the renvoi problem. Unfortunately, the solution comes at a
price that no choice-of-law theory can accept.
To see these points, the first step is the realization that the asser-
tion that the forum is enforcing local law, by itself, does nothing. The
question remains whether local law is to be shaped to resemble the
entirety of foreign law or foreign internal law alone. The two possible
in the forum but ... a foreign-created right or obligation is enforced." Cheatham,
supra note 32, at 365-66. Cook was concerned with pointing out the inconsistency
between Beale's theory and the territorialist practice of H;jecting the renvoi and thus
enforcing whose existence the foreign court would deny, an inconsistency
that Beale's fact/law distinction does not resolve.
74 Hessel E. Yntema, The Historic Bases of Private Internationall_aw, 2 AM. J. COi\'ll'.
L. 297, 3]6 (1953); see alsu, e.g., Juenger, supra note 25, at 101 (stating that "[i]t may
well be doubted whether anything is gained" by the local law theory).
75 David F. Cavers, The Twu "Local Law" Theories, 63 HARV. L. Rr·y R22. H2;)
(1950) .
76 Stanley E. Cox, Razing Conflicts Facades to Build Bflter JurisdictioJl 1'hfOl)': TIle
Fuundation-Thae Is No Law but Forum Law, 28 VAL. U. L. REv. 1, 3 (1993); Sfi' a/IO
I-{arold G. Maier, Baseball and Chidu:'17 Salad: A. Realistic Luol! at Choice uI I_ow, 44 VANLl.
L. REV. 827, R43 (l99]) (reviewing LEA BRILMAYER, CONFLICT OF LAWS, FOUNDATIONS
-\ND FUTURE DIRE<TIONS (199])) ("If the decision is the law in the case, then in this
sense forum law is always applied, even though the forum coun may look to
rules or principles to tind guides for decision.").
77 .See Dane. sl1jJ1'(f note 29, at ] 200; see ge17f'mllJl infra Part 1I1.B.3 (discllssing
assimilation) .
N()TRE Il,\i\IF 1.. \\\· RI·:VIE\\·
,U1SWlTS to this question give rise to what Cavers famously callce! "the
two 'locd law' theories."7K
The first, which ewers associated with Judge Learned Halld,"re-
quires ... that a right be found to have been created in whatever state
is seleCled by the forum's choice-or-law That is, under the first
local law theory, local law mimics the entirety of foreign law. Under
the second, which ewers attributed to Cook, local law mimics only
the foreign state's internal law, and thus "it is a matter of no concern
whether the foreign state has created a right in the plaintiff under its
law."Ko
The difference between the two theories assumes significance
when the foreign state's entire law does not create a right-that is,
when its choice-of-Iaw rules do not select its own law. This circum-
stance, of course, is renvoi. Hand's version of the local law theory
does not solve the renvoi problem, for mimicking the entirety of for-
eign law will lead the forum to apply the foreign state's choice-of-law
rules, even if as a matter of "forum" law.
HI
Thus a State A court may
well find itself in a situation in which State A law provides that the
plaintiff shall have whatever rights she would have under State B law,
and State B law gives her whatever rights she would have under State
A. law. That is, Hand's version of the local law theory simply restates
the problem of renvoi from the perspective that sees it as an incom-
plete definition.;';:2
For the local law theory to deal with renvoi then, it must be un-
derstood as directing local law to mimic only foreign internal law and
thus not concerning itself with whether a foreign court would agree
that the rights being enforced exist. This is Cook's version of the the-
ory, and while it does indeed allow a court to overcome renvoi, it
comes with its own set of problems.
The first problem is that Cook's version of the local law theory
seems to be very little more than an alternate description of rejecting
renvoi. It solves the problem, but it does so by fiat, with no explana-
tion of why forum law should mimic foreign internal law but not for-
eign choice-of-law rules. Cook would likely not have been troubled by
this. .He offered the local law theory more as a description of what
78 Sf(' ewers, sujna nOle 75.
7<J fd. at 824.
SO fd
R1 Beale's vested rights approach is basically similar to the Hand formulation, and
it is for hasically the same reason that his admonition to reject renvoi is suspect. See
sujml notes 29-3<J and accompanying text.
82 Sef' s/lpra note 19 and accompanying text (discussing renvoi as an incomplete
definition) .
RESOLVING RENVOI
courts were doing than as an explanation, and his purpose was to
show that the vested rights theory did not fit the practice. But an ap-
proach so lacking in normative or explanatory force is unlikely to win
many
In fact, there is a more substantial reason that the local law theory
is unsatisfactory: it raises serious constitutional difficulties. The cur-
rent Supreme Court has adopted quite a lenient reading of the consti-
tutional strictures on choice-of-law rules, but it has repeatedly
affirmed that such limits exist.
84
In particular, the Due Process Clause
prohibits states from applying their own law unless they have certain
minimum contacts with the litigated transaction.H"l There are cer-
tainly circumstances in which the forum will lack the required con-
tacts, but the local law theory insists that it nonetheless apply its own
law, in apparent defiance of due process requirements.
This objection might seem sophistic, the same sort of hand wav-
ing as critics deemed the local law theory itself-but V-iorse, because
the hand waving here is employed not to solve a problem but to create
one. After all, the "local la\"" that is applied is not in substance forum
internal law; it is the internal law of some other state. The state whose
internal law is mimicked will almost certainly have sufficient contacts
with the case for the application of its law to be constitutionally ac-
ceptable. If it does not, at any rate, the defect will lie in the choice-of-
law rule that selected that state's law, not the local law theory. And so,
one might think, the due process problem is at most a technicality.
Since the forum coun could constitutionally apply the foreign law in
its own right, there is certainly no injury from the application of fo-
rum law modeled on foreign law.
Rh
But the objection is somewhat more serious than that because
Cook's version of the local law theory-unlike Hand's-does more
than simply slap the label "local law" on foreign law. It changes the
contours of foreign law in a very real sense-it identifies and enforces
83 As Cheatham put it:
The wisdom of substituting f{)r the territoriality of the place of occurrence a
conceptually neccssary territoriality of the state of the forum cannot find
adequate suppon in any supposedly necessary notiun about the nature of
law. Any analytical system, as 1v1 r. Cook would have bcen the fi rs! to insisl. is
useful only in aiding us to see and express the real problem.
Cheatham, sujJr(J nOlC 32, at 388.
84 For a critical evaluation of the Court's constitutional jurispru-
dence, see Roosevelt, sUjJra nOle 13, al 2503-18.
85 SPI! Phillips Petro!cum Co. v. Shults, 472 t'.S. 7Cd7, 818-19 (1985) (discussing
dlW pro(('ss and full failh ;md credit restrictions).
8h ,\1'1' ill. at 81 h (noting lhal "(here can be no injun." it the la\\' ,\pplied by lhe
forllm dOl"!" no! conflict with all\' other L\\\, lhal ma\ be applied).
N () T ({ E [).'\ i\I E LAW REV I E \V
rights that do not exist under the foreign law.
H7
'What it applies may
be local law only in name, but it is not, in substance, foreign law.
HH
The practical purpose of due process restrictions on choice of law
is to protect litigants from unfair surprise, paradigmatically the impo-
sition of liability that they had no reason to expect. From this per-
spective, the local law theory is troubling; it imposes liability that does
not exist under the law of the state selected by forum choice-of-law
rules. It will do so in every case in which the renvoi issue exists-
which are the only cases in which it actually does any work.
Suppose, for instance, that New York and Pennsylvania both fol-
Iowa territorialist approach, and a Pennsylvania defendant a
Pennsylvania plaintiff in New York. Obviously, if the defendant is
somehow sued in Hawaii, the application of Hawaii law will raise due
process issues, at least in a formal sense. It will be a formal sense
alone-and a mindless formalism, at that-if Hawaii uses the local law
theory to supplement a territorialist approach and mimics New York
law. There can be no due process objection to the application of New
York law; that law clearly asserts an intent to regulate the defendant's
conduct and he cannot claim unfair surprise in being subjected to the
law that would be applied by the courts of the state where he acted.
In that case, however, no renvoi problem exists either, and the
local law theory is idling. New York choice-of-law rules direct the ap-
plication of New York law, so a Hawaii court could achieve the same
result by applying ew York law qua New York law, rather than mim-
icking New York internal law. The theory does do some work if we
87 This assertion might seem to beg the question-is it so clear that no rights
exist under a state's law if its choice-of-Iaw rules point elsewhere? I will argue that the
answer is generally yes, but the argument will have to be deferred. See injia Part
IV.AA. At this point I will rest with the observation that Cavers thought so. See
Cavers, supra note 75, at 825 (arguing that determining whether a right had been
created under X law "would require a reference, not merely to the Xsubstantive law,
but to the X rules. Only if they ... [pointed] to the X law as applicable
to this very case could one say that a right had been created by Xlaw."). Cook agreed;
that was why he saw the local law theory as a critique of Beale's vested rights account.
See COOK, supra note 70, at 32 (arguing that a forum can claim to be enforcing a
foreign right only if it has "acted precisely as the [foreign) officials would have acted
had the precise ca5e been presented to them").
88 Again, this is a little question-begging, and again, I will have to postpone a
fuller discussion of the issue. See infra notes 140-48 and accompanying text. For now,
note that it is commonplace in our system that state courts are authoritative in the
exposition of their own law, and thus if the State X high court would assert that the
plaintiff has no rights under State X law, it is at least superficially plausible to take that
as the end of the matter. As Griswold put it, "a reference to a foreign law means that
the local court should reach the conclusion which the foreign court would reach on
the same facts." Griswold, supra note 11, at 1187.
RESOLVING RENVOI
imagine that Hawaii choice-of-Iaw rules instead lead a Hawaii court to
suppose that Pennsylvania law is appropriate.
89
Saying that the law
applied is Hawaii law shaped to resemble Pennsylvania internal law
explains why the Hawaii court can ignore Pennsylvania territorialist
choice-of-Iaw rules, so here we see the local law theory working to ex-
plain rejection of renvoi. But new problems are created: now the de-
fendant has effectively been subjected to a law that, according to its
authoritative expositors, the Pennsylvania courts, does not reach his
conduct.
In this hypothetical case, the due process objection has more
force. The conventional due process analysis would look to the con-
nections between Pennsylvania and the litigated transaction and con-
clude that the parties' domicile creates a sufficient connection to
make it legitimate for Pennsylvania to exercise legislative jurisdic-
tionYo This makes sense as far as it goes. It makes sense as a test for
when a Pennsylvania court should be permitted to apply Pennsylvania
law. And it makes sense as a test for when a Hawaii court can apply
Pennsylvania law if a Pennsylvania court would have applied Penn-
sylvania law. But in the imagined case, it makes no sense at all, be-
cause the test is designed to determine whether Pennsylvania may
exercise legislative jurisdiction, and on the supposed facts, Penn-
sylvania has not attempted to do so. Pennsylvania law, as interpreted
by Pennsylvania courts, is territorial in scope and attaches no legal
consequences to the defendant's conduct.
9
!
One ,·vay of phrasing the practical due process objection, then, is
to say that it is indeed surprising to be subjected to a law that does not
reach your conduct. Another, which I prefer, is to say that in such a
case Hawaii is not applying Pennsylvania law in any meaningful
sense.
92
The defendant's claim of unfair surprise at the imposition of
89 The most plausible way in which this might occur would be if Hawaii were an
interest analysis state and both parties were from Pennsylvania. To restrict the disclls-
sian to the territorial approach, we might suppose alternatively that Hawaii law for
some reason tinds the last act occurring in Pennsylvania.
90 PhillilJS PetrolR.11111. Cu., 472 U.S. at 818-19 (noting due process restrictions on
the application of forum law); see generally BRIUvIAYER, sUjJra note 32, :1.2.2, at 137-43
(discussing due process analysis).
91 Tenitorialist courts were quite clear that their rule amounted to
a restriCl ion on the scope of state law. Construing a personal injury statute and apply-
ing a territorial vested rights approach, the Supreme Court of Alabama said that the
statute must be applied "as if its operation had been expreSSly limited to this state,
and as if its jirsllinc read as follows: 'V,'hen a personal injury is received in Alabama bv
a snvant or employe,' etc." Ala. G.S.R. Co. v. Carroll, 1I So. 803,807 (Ala. IWJ2).
lJ2 A more general way of putting this point, David Franklin has suggested, is Ihat
the supposed dichotomy between internal law and choice-or-Jaw rules is false: it is
" () I R ['. I).\-" I I:. l. A \-1' ]{ F\-' I [.: \-1
liabilitv under Hawaii law goes beyond formalism, for the Hawaii court
has created ,In obligation that simply docs not exist under Penn-
sylvania law and would not be recognized hy Pennsylvania courtsY:;
From a more theoretical perspective, the due process issue is the
pennissihle scope of state legislative From this perspec-
tive, the local law theory appears even worse, asserting a legislative
jurisdiction that is entirely unbounded-a state's law governs every
transaction litigated in its courts. This consequence of the local lavv
theory has not gone unremarked. "Under it," Elliott Cheatham wrote,
"the law of every state applies to every occurrence in the world and
creates at the time of each occurrence rights and obligations which
may later be enforced in the state creating them."9S Cook himself
agreed. "Shall we, must we, say that there are as many 'rights,' all
gro'wing out of the one group of facts under consideration, as there
are jurisdictions which will give the plaintiff relieD" he asked, and
answered that "there seems to be no other statement to make."96
impossible to separate the two, and to apply State A imernal law alone is not to apply
State i\ law. The Supreme Court has come close to recognizing this point. See infra
text accompanying notes 140-48.
93 What, then, if we suppose that the case is litigated in ew York and New York
rules point to Pennsylvania law? The due process objection to the local
law theon: that I have identified finds no traction no\\', ["or New York's contacts with
the case (unlike Hawaii's) are sufficient to allow it to assert legislative jurisdiction-
[ell' York courts can apply New York law, shaped to resemble Pennsylvania internal
law, if thev choose. If New York purported truly to be applying Pennsylvania law, I will
argue, there would be a full faith and credit problem, but that problem too is avoided
by the local law theory. Sp.e infra text accompanying note 138. The reason that the
due process objection fails, however, is mere fortuity-New York happens to have
sufficient contacts with the transaction, but those contacts are not the reason it is
applying its "local" law. In some other case, ell' York would find iL<;elf in the position
of Hawaii, i.e., applying its own law despite the lack of any contacts.
94 See, P.g., Hellenic Lines Ltd. v. Rhoditis, 398 U.S. :i06, :i14 n.2 (1970) (Harlan,
J., dissenting) ("There must be at least some minimal contact between a State and the
\'egulated subject before it can, consistently with the requirements of due process,
exercise legislative jurisdiction.").
95 Cheatham, supra note 32, at 386-87.
96 COOK, slllna note 70, at 33. Cook understood assertions about the law to be no
more than predictions of official behavior, see irl. at 30, and he does not appear to
have considered the due process implications of his approach. His general aim was to
provide "a reasonably accurate, understandable, and workable description of judicial
phenomena," irl. at 3:i, and he rightly concluded that the vested rights approach fit
judicial practice poorly. S'ee it!. at 33-34. The local law theory might work somewhat
better as a description, but the behavior it describes is unconstitutional. This makes
the theory a less than satisfactory theoretical resolUlioll of the renvoi problem,
though it may well be the case that the unconstitutionality is more than an artifact of
the theorY. [n fact, I will suggest just that: much of what judges do in response to the
RESOL\'ING RENVOI
The local law theory, then, does not solve the problem of renvoi
within the territorial approach. If anything, it worsens the difficulty.
Not only does it offer no good reason for mimicking foreign internal
law rather than the entirety of foreign law, but its introduction of the
idea of mimicking describes judicial practice from a perspective that
reveals serious constitutional difficulties. As we shall sec, however, the
modern approaches are hardly more successful.
B. Interest Analysis
One of the greatest defects of the territorial approach is that the
axiom of territorial scope may fit poorly with the purposes behind a
state law. A court assessing those purposes might conclude that they
vwuld be better served if the law reached some events outside the
state's borders or perhaps if it did not reach some within. Some re-
acted to this frustration by using the so-called "escape devices" to
reach results that seemed more sensible in terms of hypothesi7.ed leg-
islative purpose,97 Brainerd Currie reacted by creating a \vhole new
approach to choice of law.
Governmental interest analysis, as the name suggests, focuses at-
tention on the interests of the jurisdictions whose laws are potentially
applicable. A state is interested, on Currie's account, if application of"
its la\\I would promote the purposes behind the law.
qX
The forum
renvoi problem, and in conflicts generally, is best understood as violating the Cunsti-
tution, See infra text accompanying notes 140-48; see also Roosevelt, slIpm note at
(arguing for stronger constitutional constraint.s on rules),
97 See generally, e.g" Ralph C, Whitten, Curing the J)rfzrie17ries ojlltp COl/jlirfs HI'7l0!1I-
lion: A ProposalIor Nalional JJPgislaliol/ on Clwire of Law, .!w·isl!icliou, ([ud jlldgmelll.\, :)(
'I\'lLL\I\IETTE L. RE\', 259, 268 & n,27 (200]) (discussing escape devices),
98 Spe BRAINERD CURRIE, SELECTFD ESSAYS ON THE CONFLICT UF L\\ys ]
(1963), How one should go abmlt determining whether application oj a law \\'()ultI
promote its pUl-pose is not clear. It can cenainly be done in some caseS-ll1ost ('\'l'n'-
one would agree that. the purpose or a speed limiL, for instance, is scned by ilS appli-
caLion to cases arising on the subject road and nOI oLhers-but the typical conflicts
case prcsenLs more difficult questions, such as whether and in what cirCUlllSlcll1(TS.
should be entitled to invoke local tort or contract law, The defenders 01
interest analysis Lend to argue (hat Lhe process in such cases is essentially identical 10
the ordinary \\'ork of statuLory interpretation and thus that interest <lnaksis u!]
the same footing as the general project of determining whether statlltes apply III mar-
ginal cases, .)pp Kramer. sUjJm note '{, al IOOS-OS, "ID]ctermining wlwlher
applies in a mulListate case requires interpreting it in a way that is not
C\irT(>rc'nt from other legal problems" Jr!, at 1008,
The problem wit.h Ihis claim is tILl! the tooJ.; a\'aiJahlc" 10 guick sllch inll'rpITLI-
lion tllrn oul to 1)(' almost exclusi\'ch' assumptions unrelated to thc p;uliClllar !a\\'
heing illlerpreted, ThaI is, \yhilc Ihe purpose of a sL1tute relating tIl "pc'(!c-stri;Ul-o"
(for cX;lll1ple) !l1;l\' well ojfer SOIl1C gllicLll1\l' 10 \dll'tl1l'r in-lin(' .';}]olilcl he
010TRE DAME I . .-\W REVIE\V [VUL. riO::>
should apply another state's law, Currie suggested, only if the other
state is interested and the forum is notY9 A.nd in this case, he be-
lieved, "it seems clear that the problem of the renvoi would have no
place at all in the analysis that has been suggested." lOU Because inter-
est analysis had already determined that the foreign state had "a legiti-
mate interest in the application of its law and policy to the case at
bar ... there can be no question of applying anything other than the
internal law of the foreign state."lOI Interest analysis, in short, elimi-
nates the problem of renvoi entirely.
As Griswold wrote before rejecting a similarly optimistic conclu-
sion, '" [t] is a consummation devoutly to be wished." 102 The problem
included, it will have substantially less resolving power on the question of whether
skaters from other states count. On that question, the interest analyst must rely on
background assumptions. [n consequence, Currie's examples of his method look like
statutory interpretation only to the extent that imposing a presumptive domiciliary
restriction is interpretive. See, P.g., CURRIE, supra, at 85 (" What married women [is a
Massachusetts disability contract intended to apply to]? Why, those with whose wel-
fare Massachusetts is concerned, of course-i.e., Massachusetts married women.").
Beale's approach, which uses a presumptive territorial restriction, is equally "interpre-
tive." [find fault with this term to the extent that it suggests a qualitative difference
between Currie and Beale; if Currie's "of course" counts as interpretation, then so
does Beale's "by its very nature." See I BEALE, supra note 30, § 4.12, at 46. The only
question, then, is whether Currie's presumption is more sensible than Beale's. For
general discussions of the plausibility of characterizing interest analysis as staWLOry
construction, see Lea Brilmayer, Governmental Interest Analysis: A House Without founda-
tions, 46 OHIO ST. LJ 459, 467 (1985) [hereinafter Brilmayer, Governmental Interest
Analysis] ("Currie's illustrative examples do not amount to the ordinary process of
statutory interpretation."); Lea Brilmayer, Interest Analysis and thp jVIyth oj Legislative
Intent, 78 MICH. L. REV. 392 (1980) [hereinafter Brilmayer, Myth oj Legislative Intent];
Kay, sujna note 71, at 117-33 (discussing Brilmayer's critique); Robert A. Sedler, I n t e l ~
est Analysis and forum PreJerence in the Conflict oj Laws: A Response to the 'New Critics, '34
MERCER L. REV. 593, 620 (1983) (claiming that "the process of determining policies
and interests is exactly the same" in "domestic interpretation and conflicts
interpretation").
99 CURRIE, supra note 98, at 184. [omit here a discussion of Currie's suggestions
for other kinds of cases, which are not relevant for my purposes. For a more general
discussion of interest analysis, see, for example, Kay, supra note 71.
100 CURRIE, sujna note 98, at 184.
101 Id.
102 Erwin N. Griswold, [n Reply to Mr. Cowan's Views on Renvoi, 87 U. PA. L. REV.
257,258 (1939). Griswold was responding to Cowan, supra note 16, who argued that
a forum should apply foreign choice-of-Iaw rules but should interpret a foreign selec-
tion of the forum's law as a selection of forum internal law alone. Anticipating
(though reaching a different conclusion than) Hicks, supra note 5, Cowan argued
that this was justifiable by analogy to Whitehead and Russell's Theory of Types and on
the grounds that the business of lawyers was merely "to avoid contradiction, not neces-
sarily to TPsolve it, the resolution of generalized forms of contradiction being the busi-
RESOLVING RENVOI
is that a court following Currie's interest analysis plainly faces the
same question as the territorialists: having decided to apply the law of
another state, is it to apply the entirety of that state's law, or only the
internal law?
In answering this question, Currie, or at least his followers, ran
together several quite distinct perspectives. Currie rejected choice-of-
law rules entirely and hoped to see them superseded by interest analy-
sis. That normative stance is of course one that a scholar may justifia-
bly adopt. A state supreme court convinced of the wisdom of this
position is likewise free to discard its own judicially-crafted choice-of-
law rules and replace them with interest analysis. But a court applying
foreign law is in quite a different position. It has neither the wide-
ranging liberty of the scholar nor the narrow authority it wields with
respect to the content of its own law. A state court cannot discard the
rules of other states; it cannot impose interest analysis on them.
Other states may choose to retain their traditional choice-of-law rules,
as indeed many have. The refusal to apply foreign choice-of-law rules
requires an additional justification-and an interest analyst, if making
recommendations to a court, must provide one.
It does, admittedly, seem odd to examine a foreign state's inter-
nal law in order to determine whether that state's law should be ap-
plied and then to apply not that internal law but the entirety of
foreign law. I 03 But identifying an oddity is not the same thing as mak-
ing an argument; interest analysis needs some explanation of why
renvoi should be As did the territorial approach, interest
analysis has resources for this task. Indeed, on closer inspection, they
ness of logic and not of law." Cowan, supra note 16, at 45. Griswold quite properly
answered that "it seems difficult to escape the feeling that the result has been as-
sumed rather than established." Griswold, sujna, at 259. That is, while Cowan offered
a method of dealing with the renvoi that did not lead to paradox, the method had
nothing more than the avoidance of paradox to recommend it; it work.ed by fiat
rather than analysis. Oddly, Cowan argued that while the ipse dixit nature of tIl('
solution made it inadequate as a matter of logic, "it is entirely legitimate for lawyers to
postulate where it would be illegitimate for a logician to do the same thing." Cowan,
sujJI"{l note 16, at 45.
103 The problem, of course, is that applying a foreign rule may undo
the supposed gains of interest analysis. Having, for instance, decided that the policies
behind the forum's internal law are not implicated and that those behind the foreign
state's are, an interest analyst might then fino th;-tt the foreign state's choice-of-law
rules directed the application of the (uninterested) forum's law, precisely what inter-
t'st an;-tlysis was to avoid. \!\That this suggests is that accepting the renvoi is not a happy
solution [or interest analysis, either. Here there is indeed an air of "<Ibdication of
sovereignty," as Lorenzen charged occurred with renvoi generally. SPI' Lorenzen.
wpm note 2. at 205.
· 0 T R F 11 ..\ 1\ I FI ...\ \\' R F \' IF:\\'
prove 1.0 be essentially the same moves. And, as we shall see, they fail
for essentictlly the same reasons.
1. The Inherent Distinctiveness of Choice of Law
The oddity just mentioned appears to be what Currie was relying
on in his suggestion that there was no question of applying anything
but foreign internal law. Indeed, there is a superficial plausibility to
the idea that, having determined that the purposes of foreign internal
law would be served by its application, one should proceed to that
application straightaway vvithout further dalliance in the choice-of-Iaw
field. The proper focus for interest analysis, Currie evidently thought,
is internal law and internal law alone; choice-of-Iaw rules do not relate
to state interests.
104
A deeper investigation, however, shows that this
approach runs so counter to the fundamental presuppositions of in-
terest analysis as to flirt with incoherence.
The great defect of the territorial approach, according to Currie,
was that it resolved choice-of-Iaw problems in a haphazard manner,
without consideration of the policies underlying the competing
laws.
lo
;> In a significant number of cases, then, it sacrificed the inter-
ests of one or another state for no good reason.lOt) But what are these
interests, and who determines them?
Currie never gave an entirely clear answer to this question, and
much of the debate over interest analysis centers on what it means to
have an interest, and in particular whether state interests are "objec-
tive" or "subjective" (terms whose significance will be explained soon).
But I believe the best reading of his approach-"best" both in terms of
his likely intent and on the merits-takes them to be simply short-
hand for the end result of a process of statutory construction. 107 That
104 See CURRlE, supm note 98, at 183-84. For a modern statement of this position,
see Bruce Posnak, Choice oj Law-[ntnest Analysis: They Still Don't Get [I, 40 W.WNF: L
REV. 1121, 1140 (1994) (" [T] he interest analyst is saying that the only policies that
count in determining whether a state has an 'interest' are the policies behind its com-
peting law, not the policies behind its choice of law approach or some other policy.").
It is at this point, as the text discusses in more detail, that I believe the interest analysts
unwittingly transformed the legitimate suggestion that all state courts should reject
their own traditional choice-of-law' rules into the illegitimate one that each state court
should reject all other states' traditional choice-of·law rules.
105 See CURRJE, sul)m note 98, at 89-98.
106 See id.
107 Currie suggested (somewhat facetiously) that the aim would be achieved if "we
could buttonhole in the statehouse corridor the personification of the Massachusetts
General Assembly" and get an answer as to which cases the statute was me-ant lO cover.
[d. at 81, 83-84. This line suggests an intent-focused method of statutory construc-
tion. But those who are skeptical about the existence of legislative intent or t.he possi-
RESOLVING RENVOI
is, the first step of interest analysis is simply a matter of determining
the scope of a state law by interpreting that law to determine whether
it is intended to apply to a given set of facts.
JOS
But if that is so, it should be immediately obvious that the forum
cannot ignore foreign choice-of-law rules. 109 Those rules, after all, are
bility of personifying a multi-member body may of course substitute their preferred
method; the application of interest analysis does not require any particular interpre-
tive approach.
] 08 As the text notes, how faithful this statement is to Currie's understanding of
interest analysis is not entirely clear. See Larry Kramer, Rethinking Choice of Law, 90
COLUM. L. REv. 277,290 n.35 (1990); Kramer, sU/Jranote 3, at 1005 n.91. The claim
that interest analysis seeks constructive intent (i.e., the result the legislature would
have approved had it considered the problem) provides the fulcrum for much of
Brilmayer's early criticism. See, e.g., Brilmayer, Myth of Legislative Intent, supra note 98,
at 393. The partisans of interest analysis scolded her harshly for the alleged misinter-
pretation. See, e.g., Kay, sU/Jm note 7], at ] 27 (" [Professor] Brilmayer seems impervi-
ous to constructive criticism."); Sedler, supra note 98, at 609 ("Professor Brilmayer
simply has got it all wrong. . Interest analysis is in no sense based on legislative
intent, either actual or constructive."). The vitriol of these responses is pUZZling. Kay
and Sedler both agree that the aim of interest analysis is to apply state laws in circum-
stances in which doing so promotes the policies or purposes behind them. See Kay,
supra note 71., at 125 (stating that Currie was interested "only in how a statute or
common law rule might be applied to accomplish its underlying domestic policies");
Sedler, supra note 98, at 61 () (suggesting that interest analysts' "claim is that choice of
law decisions should be made with reference to the policies embodied in rules of
substantive law ... and the interests of the involved states in having their laws applied
to implement those policies in the particular case"). But each of these quotes \vould
receive full credit as a deftnition of "constructive intent," which itself is just a method
of statutory interpretation, and statutory interpretation is exactly what everyone
agrees interest analysis claims to use. See, e.g., Scott Fruehwald, Chuice of I.aw in Fedeml
COU1tS: A Reevaluatiun, 37 BR.,\ DEiS LJ. 2], 50 (1998) (urging courts to "attempt to
establish the legislature's constructive intent by examining the law's purpose");
Kramer, sU/Jm, at 300 (describing this method of statuto!)' construction as "black let-
ter law" and "the most widely used and accepted approach to interpretation both in
practice and in the academy"). One does not, at any rate, find many interest analysts
arguing that their aim is to produce results the legislature would not have approved
had it considered the question; nor did Currie suggest that this would be desirable.
SP-f! CURRIE, sU/Jm 1I0te 48, at 606 (approvingly describing the Supreme Court's met.h-
odology in a conflicts case as "trying to decide as it believes Congress would haye
decided had it foreseen the problem").
] 09 Larry Kramer gi\'es an excellent statement of this point in H"lw'II. uf the Rrnvoi.
See Kramer, sU/Jra note ?>, at ] 005. Kay denies it, though apparentlY only on the
grounds that sLate rules do nOl re!;.He to st.atf' interests. Sf!' Kay, sll/na
nore :")4, at 908-11. But the inqllil)' into the existence of an interest is simply an
intermediate step in the det.ermination of a law's scope, and gi\'cn that legislatures
can conlrol scupe, their power ovcr interests is irrelevant-as, indeed, is the term
itself .\/'f' LaiTY Kramer. Thl' A1-'1I11 41h!' "( i1/jnm1idl'dJo)" " (;(l\(', 75 V\. L. RE\'. l04!1, l06A
(1\-1:-)4) C"ITJhe 'inten-'st' IlTlllinolog\ is lllerely conventional. The point of the in-
N (n R F J) A l'vl r: l. ..\ 'v\' R E \' lEW
the ones that govern precisely the question of whether a state's inter-
nal law applies, 110 Interest analysis is thus by its own terms committed
to the consideration of foreign choice-of-la'w rules, odd though it may
seem.
ll1
The assertion of a distinction inherent in the methodology
casts aside provisions of foreign law specifically directed to the ques-
tion interest analysis tries to answer; it makes interest analysis run
roughshod over its own aspirations. Currie's conclusion cannot
stand. I 12
quiry is to determine what rights the state may have conferred on a party, ... "). The
most promising step to advance Currie's insights might well now be to abandon talk
of interests. Kramer has done so; he phrases the analysis in terms of "prima facie
applicability." See Kramer, supra note 3, at 1014 ("I prefer to say that the state's law is
'prima facie applicable' in order to avoid some of the baggage associated with the
term interest, ... "). I would rather talk simply in terms of scope; as will become clear
later, I think it would be an even greater advance to abandon talk of "applying" a
state's law at all.
110 The point could be disputed, but not, I think, convincingly, In Pfau v. Trent
Aluminum Co., 263 A.2d 129, 137 (NJ. 1970), the counjustified disregard of a territo-
rial rule with the observation that" [l] ex loci delicti was born in an effort
to achieve simplicity and uniformity, and does not relate to a state's interest in having
its la,"v' applied to given issues in a tort case." fd. As a martel' of intellectual history,
this is far off; lex loci delicti was born from the conviction that state pO\ver was territori-
ally bounded, and it quite definitely reflect<; a conviction that tort law does not reach
events. See Ala. G.S.R. Co. v. Carroll, 11 So. 803, 807 (Ala. 1892) (equating
operation of a territorialist choice-of-law rule to explicit territorial restriction in the
text of a statute).
III One way of eliminating the oddity, of course, would be to consider foreign
choice-of-Iaw rules at the stage of determining whether the foreign state is interested.
This solution is, I bclieve, essentially corrcct, and I discuss it in more detail infra Part
I1.B.4.
112 In saying this I do not mean to disparage Currie's contribution. His funda-
mental insight-that choice-of-law analysis can largely be assimilated to the process of
determining the scope of state-created rights in purely domestic cases-is a tremen-
dous conceptual advance. And even his brief and tentative discussion of renvoi con-
tains two important observations: first that renvoi is "wholly artificial, being raised
merely by the form of rules," and second that renvoi within interest
analysis is similar to "the case in which neither state has an interest in the application
of its law and policy." CURRIE, supra note 98, at 184. The first observation is accurate,
though I disagree with Currie over the source of the renvoi problem and believe hc
failed to eliminate it. The second describes what in Currie's terminology is called an
"unprovided-for" case. Again, Currie was correct to link this phenomenon to renvoi,
but because he did not himself fully understand the implications of his method, he
suggested that in such cases "the forum would apply its own law simply on the ground
that that is the more convenient disposition." Id. at 184. The correct analysis is found
in Kramer, supra note 109. The relationship between the unprovided-for case and
renvoi is discussed infra Part IV.B.l.b.
RESOLVING RENVOI
2. The Appeal to Objectivity
We have seen already that after the failure of the attempt to deem
foreign choice-of-Iaw rules irrelevant, the next move is to characterize
them as incorrect. The territorialists did not make this move as ag-
gressively as they could have, but the interest analysts did. Indeed, in
so doing they seriously overplayed their hand and came close to com-
promising the plausibility of interest analysis as a conflicts methodol-
ogy altogether. Understanding how this happened requires a more
detailed discussion of the nature of state interests.
In the preceding section, I adopted a perspective that takes state
interests as "subjective." That is, whether a state is interested in a
transaction is shorthand for whether the transaction falls within the
scope of that state's law. Determining the scope of a state's law is a
matter of interpreting it, and the legislature and the courts of that
state are of course authoritative in the drafting and interpretation of
their own law.
I have said that I find this understanding of interest analysis best
on the merits, for reasons that will appear shortly. And to the extent
that Currie addressed the issue explicitly, he seems to have endorsed
it.
113
But it is possible also to suppose that states are not authoritative
with respect to the existence or nonexistence of their interests-that
is, that state interests are "objective" and outside the control of the
state courts and legislatures. If this is so, then a forum may safely sub-
stitute interest analysis for whatever a foreign state's choice-of-Iaw
rules provide. The forum is entitled to decide for itself whether a
foreign state is interested, and having made that decision, it has re-
solved the question of whether that state's law should apply. The for-
eign state's choice-of-Iaw rules may prescribe a different conclusion,
but that is of no moment-to the extent that they suggest that the
foreign state's la\'i does not apply (i.e., that the foreign state is not
interested), they are simply wrong.
This is the appeal to objectivity for interest analysis. It may be
possible to give a more sympathetic exposition of the move, but I do
113 In addition to suggesting that that the existence of an interest could be ascer-
tained by asking the personification of the state legislature, see supra note 107, Currie
observed that an interest analyst's conclusions with respect to state policies and inter-
ests, based as they were on assessment of the purpose of a state's law, "are tentative
and subject to modification on the advice of those who know beuer"-namely, state
court, and legislatures. CURRIE, supra note 98, at 592 (emphasis omitted). He did,
moreover, suggest that explicit legislative statements as to scope were authoritative
and desirable. Id. at 171-72. But see Lea Brilmayer, The Other Stale's Interests, 24 COR.
NELl. INT'L LJ. 233, 241 (1991) (asserting that Currie "almost cenainly" had an o ~ j e c ­
tive conception of interests).
NOT R F [) .'\ i\l E 1..\ II' R L V I F IV
not find those of its proponents any more plausible. Peter 'vVestcll
argued, for example, that "if the forum decides that a foreign state is
interested in a case by looking to that state's conflicts law, it subordi-
nates its own choice of law to that of a foreign state, however archaic
the latter may be."1'4 But the whole venture of choice of law, as Gris-
wold had earlier observed in response to just this claim, consists in
"telling a court when it should cast aside its own rule in favor of one
that is preferred abroad."llc, Herma Hill Kay's suggestion that "[tJhe
mere fact that [a foreign state] might mistakenly fail to recognize her
own legitimate interests need not prevent [the forum] from recogniz-
ing her interests on her behalf' lin is similarly puzzling; unless they run
afoul of constitutional restrictions, states cannot be "mistaken" about
the scope of their law.
117
John David Egnal has described this approach as "megalomania-
cal and a serious breach of the forum's obligation under the full faith
and credit clause." IIH Those are strong words, but the description is
apt. The problem, the same one we have seen attending the assertion
of inherent distinctiveness, is that an approach that seeks to deter-
mine whether foreign law is intended to apply can hardly justify con-
tradicting those provisions of foreign law that address applicability. If
foreign choice-of-law rules can be wrong, then state interests must be
objective, and in that case interest analysis again runs headlong into
itself; it is defying provisions of state law (the choice-of-law rules) that
are plainly intended to apply. On this account, interest analysis loses
114 Peter Kay Westen, Comment, False Conflicts, 55 CAL. L. REV. 74, 85 (1967).
115 GriSWOld, SUIJT(l note 11, at 1178.
116 Herrlla Hill Kay, Comments on Reich v. Purcell, 15 uCLA L. REV. 551, 589 n.31
(1968).
117 See id. Kay's point in that comment was the standard interest analysis claim
that choice-of.Jaw rules-especially the traditional ones prevalent in 1968-do not
reflect state policy. See Kay, supra note 54, at 913 (arguing that territorial choice-of-
law rules "provide no ... information" as to whether a state "would choose to assert its
domestic interest" and that consequently "my willingness in 1968 to permit California
to recognize Ohio's domestic interests on her behalf still seems justified"). As a cur-
rent prescription, she urges that "a court following interest analysis should still disre-
gard the other state's traditional choice of law rule as irrelevant to its initial inquiry
into the policies and interests underlying that state's domestic law." !d. at 914. The
problem with both of these positions is that courts following territorial rules did quite
clearly understand them as limitations on the scope of state law. See Ala. G.S.R. Co. v.
Carroll, 11 So. 803, 807 (Ala. 1892). A restriction on scope may not be identical to
the absence of an interest, but it is dispositive with respect to the question of whether
a law may be applied to a transaction. If a transaction does not fall within the law's
scope, any talk of interests is irrelevant.
118 John David Egnal, The "Essential" Role of Modem Renvoi in the Governmental lnter-
est Analysis Appmach to Choice of Law, 54 TEMP. L.Q. 237, 265 n.145 (1981).
RESOLVING RENVOI 18!)7
all plausibility as an attempt to vindicate state policies, at least where
such "policies" are understood as those the state has asserted, rather
than the product of a priori theorizing. As Brilmayer put it, "Currie
was as metaphysical as Beale."119
The interest analysts, of course, took pains to avoid reliance on
metaphysics and tended to describe their approach as enlightened
rather than correct.
120
But this is simply a more polite version of the
appeal to objectivity, and it cures none of the defects. Other states
may well have adopted unenlightened rules to determine when their
law applies, but interest analysis is committed to respecting the judg-
ment of "those who know better." 121
Indeed, Egnal is quite right to suggest that the assertion of objec-
tivity or superior enlightenment presents serious constitutional diffi-
119 Lea Brilmayer, Methods and Objl'r.tives in the Conflict oj Laws: A Challenge, 3:=i MER-
CER L. REV. 555, :=i63 (1984). Brilmayer has suggested to the contrary that a state's
choice-of-law rules should be respected to tbe same extent as its internal law.
BRIU\IAYER, supra note 32, § 2.5.4, at 105-09. The 199:'1 treatise recapitulates some of
the high point'; of decades of earlier attacks on interest analysis. ,""{'f, f.g., Brilmayer,
(;o1!rrnmenla.l Interfsl Analysis, supra note 98; Brilmayer, Myth oj Legislalive Inlent, supra
note 9H. For a sampling of responses, see, for example, Kay, supm note 71, at 50-5H;
Bruce Posnak, Choicc oj Interest Analysis and lis ''lv'ew Crits, "36 A1v1. J. COl\IP. 1.. 6H1
(EJ8H); Pusnak, supra note 104; Sedler, supra note 9H; Robert A. Sedler, Intl'i'l'sl A /Ia/y-
sis as thl' Pnjfrred AjJpmach to Choir:e oj ],aw: A Rl'sjJOnSf to Projfssor Brilmayer\" "Founda-
lional Altad{, " 46 OHIO ST. LJ 483 (1985). To the extent that interest analysts
asserted the propriety', or even tbe possibility, of ignOI'ing foreign choice-of-Iaw rules,
1 belie"e Brilmayer's condemnation is correct. But as Larry Kramer has argued, there
is no reason for interest analysis to put that particular millstone around its neck. Sfe
Kramer, supra note 3, at 1005 (suggesting that adherence to "Currie's basic insight"
should lead interest analysL'i to respect foreign choice-of-Iaw rules). It is not my pltr-
pose here to take a side in the dispute over interest analysis, something that the diver-
sity of \'iews as to the content of that approach would make difficult in any event. .'ife
Hcrma Hill Kay, Fllf Use of Comparalive J17ljJainnen/ to Resolve T/'Uf Conjlicts: An L'7.IaJ-ua-
liou oj lite Califurnia Experienr:e, 68 CAL. L. RE\". "877, 615 (1980) (describing modern
theory as "stagnant pools of doctrine, each jealously guarded bv its ad-
hereillS") ; Phaedon John Kozyris, Conflicts Them)' for J)11.l7l 17l if.1': 1e Deluge, Whne
A If' We 1111 FrudllfPIs Liability?, 60 LA. L. RE\'. 1161, 1169 n .23 ("I ndeed. ill terest
analysis is becoming as diverse as Marxism or Christianity." (citations omitted)).
12() .)1'1', e.g.,Posnak, supra note 104, at 11:\4-:16 (discussing treatment of foreign
rules under interest analysis as designed to avoid "irrational" results).
CL'RRIF, sujJranote 98, at 592 (emphasis omitted); SeeBRl1.t,WER, slIjna note 32,
at 106 ("If [the forum] respects 'stupid' substantiw preferences by other
states. why nol 'stupid' choice of law preferences;' The bct is that an authoritative
organ of the Slate has decreed that what the state 'wants' is to have its law applied ill
certain cases bUl not in others."). !Jut .Iff Posnak, suj;1'{/ note ]()4, at 1141 (stating that
"lilt' interest anah'st is saving Ihat the only policies that counl in delcrmining whether
a slate has all 'interest' are the policies behind its competing law, not the policies
behind iLS choice of law approach or sonw otlwr polin''').
NOTRE IL\MF L\W RE\'IEW
,
'I
\:
~
\
"
culties, If a sister state law, for instance, is explicitly territorial in
scope I ~ ~ (e.g., a wrongful death statute that applies only to deaths
"caused within this state") it is a violation of the Full Faith and Credit
Clause for the forum to apply it to those caused beyond the state's
borders, even if the decedent is a state domiciliary with whose welfare
the state is (of course) concerned. The interest analysts who sug-
gested that the forum may recognize the other state's interests despite
its mistakes I ~ ~ or that the forum should "apply the law of the other
state, even though that law doesn't want to be applied"124 would surely
balk at the suggestion that the forum should allow recovery even
though the foreign law does not allow it.
12
:; But-if a choice-of-law
rule is equivalent to an explicit restriction within a statute-that is
precisely what they suggest via the appeal to objectivity.126
At this point it is appropriate to address that "if' in more detail.
That choice-of-law rules are akin to explicit restrictions on statutory
scope is one of the central claims of this Article, the premise that pow-
ers most of its conclusions. It is not a novel claim; John Westlake
made it over a hundred years ago,127 and it plays a similar central role
122 Since at this point I am discussing renvoi within interest analysis, the introduc-
tion of a territorial statute may seem not to play fair. But there is no bar to a state's
defining its interests in territorial terms-unless, of course, interests are objective, an
alternative the text offers reasons to reject. Indeed, if the question of whether a state
is interested is the question of whether its law is intended to apply, such a territorial
restriction should be considered the clearest possible definition of the state's interest.
123 See Kay, supm note 116, at 589 n.3l.
124 DAVID F. CAVER.5, THE CHOICE-0F-LAW PROCESS 106 (1965).
125 Posnak does suggest that the forum should ignore an express statement of leg-
islative intent that a state law reach a particular transaction, arguing that" [i] f the
forum were bound to apply this foreign law or even bound merely to attribute an
'interest' to the foreign state, it could lead to a result that is irrational in terms of the
policies of the competing laws and the facts of the case." Posnak, sUjYra note 104, at
1135. The assertion that applying a state law to a transaction explicitly placed within
its scope by the legislature could be irrational in terms of that law's policy is a stark
example of how the appeal to objectivity rejects the policymaking authority of state
legislatures. Posnak would give somewhat more, though not conclusive, weight to an
express statement that a state law does not reach a particular transaction on the
grounds that such a limitation "is analogous to a declaration against interest." Id. at
1135 n.72.
126 They might have been on firmer ground had they attempted to justiry the re-
jection of foreign choice-of-Iaw rules as a form of depe<;:age-the application of parts
of multiple states' laws. But depec;:age makes sense only when the portion of each
states' law that is applied can be severed from the remainder without doing violence
to its coherence, and ignoring a choice-of-law rule makes no more sense than severing
a territorial restriction internal to a statute.
127 See NORMAN BE lWICH, WESTLAKE'S TREATISE ON PRIVATE INTERNATIONAL LAw
38 (7th ed. 1925) (concluding "that a rule referring to a foreign law should be under-
RESOLVING RENVOI
in both Brilmayer's critique of interest analysis
12R
and Kramer's inves-
tigation of renvoi. J 29 In each of these contexts it has been
disputed. 130
The arguments offered in support, though persuasive to me, are
perhaps the sort of things that convince only those who have already
had similar thoughts. Kramer asserts that a choice-of-Iaw rule is a rule
of interpretation and further that rules of interpretation are "part of a
state's positive law."I3I Brilmayer challenges interest analysis on its
own terms, arguing that choice-of-Iaw rules are expressions of policy,
even if "unenlightened" from the perspective of interest analysis, and
must be heeded for that reason.
I32
Neither of these arguments is a
100% knockdown. Interest analysts might simply deny the premises
and respond that choice-of-Iaw rules are not rules of interpretation
and that territorial rules do not reflect any policy judgment-indeed,
they have.
133
My purpose in these paragraphs is to ask whether a
stronger case can be made.
From the territorialist perspective, as I have demonstrated, the
equivalence of territorial choice-of-Iaw rules and statutory restrictions
is implied by the theoretical apparatus and was explicitly recognized
by courts.
134
But interest analysis rejects this perspective; its most vo-
cal proponents maintain that a foreign state's choice-of-Iaw rules can-
not be considered dispositive on the question of whether that state's
stood as referring to the whole of that law, necessarily including the limits which it
sets to its own application, without a regard to which it would not be really that law
which was applied"). The first edition of the treatise was published in 1858. Id. at ii.
Bate dates Westlake's acceptance of renvoi to his 1900 contribution to the discussions
of the Institute on International Law. See BATE, sUjJra note 2, at 57.
128 See BR1LIvlAYER, sujJra note 32, § 2.5.4, at 105-09.
129 See Kramer, sujnG. note 3, at 1011 ("A state's approach to choice of law by defini-
tion establishes the state's rules of interpretation for questions of extraterritorial
scope.") .
130 See Lorenzen, sUjJra note 2, at 203 (dismissing Westlake's claim as "an absurd-
ity"); Posnak, sUjJm note ] 04, at ]] 23 n.6, 1131-51 (criticizing Kramer and
Brilmayer) .
13] Kramer, supra note 3, at ]008-10.
132 See BRILMAYER & GOLDSMITH, sUjJra note 28, at 106-07.
133 See sUjJm note] ] 9.
134 As the Supreme Court of Alabama put it, construing a personal injury statute
and applying a territorial approach, the statute must be applied "as if its operation
had been expressly limited to this state, and as if its first line read as follows: 'V/hen a
personal injury is received in Alabama bv a servant or employe,' etc." Ala. G.S.R. Co.
\. Carroll, 1] So. 803, 807 (Ala. 1892).
1 i)(;O
Ltvv reaches a transactiOI1.
1
:
F
• Similar pronouncements have been
made by courtS.':'·h
It is possible to argue, as I have above, that disregarding foreign
rules in fact runs counter to the central aspiration of
interest analysis and that therefore interest analysis is committed by its
own principles to respect them (which I take to be essentially
Brilmayer's point). It is also possible to show, as I will below, that
respecting foreign choice-of-Iaw rules need not lead to renvoi, and the
practice could for that reason be recommended on grounds of practi-
cal utility. But neither of these argumentative tacks is decisive, and so
my aim here is to suggest that there is a constitutional argument for
deference to foreign choice-oE-law rules.
The starting point is the observation that state courts and legisla-
tures are authoritative with respect to the scope of their own law. This
point is well established and need not detain us long. The Supreme
Court has long recognized that state court constructions of state law
are generally binding on federal courts. I State courts plainly have
no greater pO\ver than federal courts in the interpretation of sister
state law, and the principle applies equally in the interstate context:
state courts of last resort are authoritative with respect to the meaning
of their law.I'ls
---------
J 35 SI'(,. I'.g.. Pnsnak, SlIjiUl note 104, at 1134 ("The forum coun owes little defer-
ence to a foreign lq?;islarure.").
1:3b SI'I'. tg, Prau v. Trent Aluminum Co., 263 A.:M 129, 137 (NJ. 1970) (sug-
gcsting that territorial choice-of-law rules can be ignored by courLS following policy-
oriented approaches).
137 Sl'e. t.g. Forsyth v. City of Hammond, 166 U.S. j06, 518-19 (1897) (holding
"the cOl1struClioll by the courts of a state of its constitution and statutes is, as a general
rule, binding on the Federal courts"). For a more modern statement of the proposi-
tion, see /\ /abr/ll/ll v. S'helton, 535 U.S. 654, 674 (2002). The exceptions fall into two
basic classes. First, state COlirt applications of state law can be reviewed where the
cunscquence is the dcnial of a federal right. Thus a state court determination that no
contract exists Glil defeat a litigant'S claim under the Contracts Clause, and a determi-
nation that a litigant has defaulted a federal claim under state procedure can justify
refusal to hear that claim. In such cases. federal courts assert some power to second
guess the state law ruling. See, e.g., Laura S. Fitzgerald, .\'us/Jecting lhe Slales: SUjnnne
Court R.l'lliew o/Stall'-Cow1 Slale-Lawjudgrnents, 101 MICII. 1.. REV. 80, 83 n.11 (2002)
(discussing "alltececlent state ground"); Kermit Roosevelt III, Lighl From Dead Stars:
The Adeqllall' alld Independent State Ground Reconsidered, 103 COLUM. L. REV. 1888, 1889
n.1 (2003) (same). Second, some interpretations of state law may be so unexpected
as to violate the Due Process Clause. See Bouie v. City of Columbia, 378 U.S. 347
( 19(4) (holding that state court interpretation of state law departed so far from pre-
cedent as to consti tute a due process violation). In both these circumstances, the
presence of a federal right makes the difference.
138 The prillciplc is somewhat less developed in the interstate context, but it does
exist; indeed, it has a clear textual basis in the Full Faith and Credit Clause. See, e.g.,
RESOLVI G RENVOI
But the foregoing gets us only to the stage of raising the funda-
mental question. Certainly state courts are authoritative as to the
meaning of their own law, and certainly whether a state's law applies
to a particular set of facts is a question of its meaning.
139
But do
choice-of-Iaw rules answer that question? Do they delimit the substan-
tive scope of state law?
Again, it is useful to look to the in teraction of state and federal
courts, v"here the questions of respective authority have been ad-
dressed in more detail. The Supreme Court has, it turns out, stated
explicitly that a federal court applying state law must heed the limits
set by that state's choice-of-Iaw rules. Klaxon v. Stentor Electric Manufac-
turing Co. holds that federal courts exercising diversity jurisdiction
cannot second guess state courts as to the scope of their law; subject
only to constitutional constraints, a state "is free to determine whether
a given matter should be governed by the law of the forum."14o A
federal court lacks the power to disregard the limitations that a state,
through its choice-of-la'''' rules, has placed on the scope of its law.
141
To put the point slightly differently, Klaxon recognizes that to apply
state law means to apply the entirety of state law; the idea that internal
Jaw may be separated out and "applied" by itself is simply false. Thus,
it would seem, the Court has recognized that state choice-of-Iaw rules
amount to restrictions on the scope of state law and bind other
forums.
142
Sun Oil Co. v. \Vortman, 486 U.S. 717, 730-31 (1988) (noting that clear and willful
misinterpretation of sister state law violates the FuJI Faith and Credit Clause). It
would seem at any rate 1:0 follow more or Jess immediately from the rationale for state
interpretive supremacy vis-a.-vis federal courts, which is that "[t]he exclusive authority
to enact [state] la\\'s carries with it final authority to sav what they mean." Jones v.
Prairie Oil & Gas Co., 273 U.S. ]95,200 (J927).
J 39 ,<,;pe, e.g., Hartford Accident & Indem. Co. v. N.O. Nelson Mfg. Co., 291 U.S.
352,358 (1934) ("As to the meaning of the statute ... the Supreme Court of Missis-
sippi speaks with ultimate authority. V'll' assume in accordance with its ruling that the
statute was intended to apply to such a bond as the one in controversy here ....").
140 313 U.S. 487,497 (1941).
14] Kloxo/l, of course, deals with federal courts exercising diversityjurisdiction, but
the principle that a federal court applying state law must observe the limits placed on
thai la\\' by the Slate's rules has been recognized in the context of pen-
dent jurisdiction as well. United Mine Workprs oj Ame;7m v. Gibbs, 383 U.S. 715, 726
(1966), direct:.; fcckral courrs to follow Erie in deciding state law claims uncler pen·
dentjurisdinion. and lower courts have understood the direClin.' to include Klaxo/l as
progeny of f,·,-i('. See, e.g., Gluck \'. Unisys Corp., 960 F.2d ]] 6R, ] (3d Cir.
EJ92) (statillg Klaxo/l requires application of a forum state's choice of law principles
in di"ersit\ cases and ,,'ilh respect to pendent state claims).
142 I thus read Klaxon to be constitutionally grounded in ;-\ certaillsense. It recog·
nizes thaI Slate ch(lice·of·I;l\\· rules relatt' to the sllbslanti\'(' scope of SI;He til\: and thus
1
I
NOT R E l):\ ;..., E L ..\ W REV lEW
Matters are not quite that simple, however, for the quoted sen-
tence continues "or some other." Klaxon thus requires federal
courts to adhere to state choice-of-law rules not merely on the ques-
tion of whether local law applies, but also with respect to the applica-
tion of foreign law. This second step is, or should be, puzzling. It
grants to state courts the power denied those of the federal govern-
ment-the power to ignore a state's determination, as expressed in its
choice-of-law rules, whether its law applies. But state courts, we have
seen, have no greater power than federal courts to ignore authorita-
tive constructions of sister state law.
The explanation is presumably that the Klaxon Court saw that im-
posing similar requirements on the states would lead directly to the
infinite regress of renvoi. If each state must, when applying the law of
another state, apply that state's choice-of-law rules, the Constitution
seems to have turned out to be a suicide pact after all: it has pre-
scribed the very circulus inextricabilis the territorialists invoked as rea-
son enough to reject the renvoi.
Impossibility of compliance is sufficient excuse to ignore a consti-
tutional demand. The Supreme Court has said as much in consider-
ing the limits the Full Faith and Credit Clause sets on choice-of-law
rules. There it pointed out that a straightforward application of the
constitutional text would seem to require that "the statute of each
state must be enforced in the courts of the other, but cannot be in its
that federal COUlL') purporting to apply state law must respect the limits set out by
choice-of-law rules. A federal court disregarding state rules would no
more be applying the law of that state than would a federal court applying one section
of a state statute while ignoring another. vVhatever constitutional bar exists to the
latter practice also forbids the former. This is not to say that the Constitution requires
federal courts to apply any particular state's law in diversity actions (the main Klaxon
question), or even to apply state law at all (the Hrie question); it is only to say that
"applying" state law means applying state rules to the extent they specify
the scope of state law.
The scholarship focusing on Klaxon is sparser than that discussing Elie, which of
course is not saying much. See l\tlAURlCE ROSENBERC ET AL., ELEMENTS OF CIVIL PROCE-
DURE 390 (4th ed. 1985) (noting that the volume of Erie scholarship is enough to
"sink it without a trace"). A valuable recent contribution is Borchers, supra note 66.
Borchers argues that Erie, and by extension Klaxon, are not constitutionally grounded;
federal courts exercising diversity jurisdiction need not apply state law. See id. at
118-19. This Article takes no position on that broader question; it asserts only that
Klaxon was correct in recognizing that a federal court that ignores the scope of state
law as set out in that state's choice-of-law rules is not applying that state's law in any
meaningful sense.
143 Klaxon, 313 U.S. at 497.
RESOLVING RENVOI
own" 144-an obviously absurd result. Unable to read the text literally,
the Court has responded by draining it of meaning.] 45
But we should not give up so easily. The Court was mistaken, I
have argued, in thinking that no plausible method exists to imple-
ment a meaningful full faith and credit requirement.
146
And it was
mistaken to suppose that recognizing choice-of-Iaw rules as authorita-
tive restrictions on the scope of state law would generate paradox. In
fact, consistent application of Klaxon's basic principle resolves the dif-
ficulty; giving each state authority "vith respect to the scope of its ovm
law simultaneously denies it authority with respect to other states'
laws. (Thus, it should be clear, I am not arguing that applying a
state's law means respecting the prescriptions of its choice-of-Iaw rules
as to whether some other state's law applies-indeed, I am arguing that
on that issue, the other state's choice-of-Iaw rules have final say.)
"Vhat Klaxon should have said, then, is simply that all courts, in apply-
ing a state's law, are bound by the restrictions on scope embodied in
that state's choice-of-Iaw rules.
147
Of course, Klaxon did not say that, and an argument that relies
on the first half of a sentence while disregarding the second is some-
what less than indisputable as a reading of the doctrine. I do not, and
could not, claim that the current Supreme Court sees things this way
or is likely to in the near future. VVhat I have tried to suggest is that
the logic behind Klaxon does lead, more or less inexorably, to the
conclusion that states cannot ignore sister state choice-of-law rules.
That state courts are supreme in the exposition of their own law is one
of the most fundamental postulates of our post-Erie jurisprudence.
From that principle it follows that each state is authoritative as to the
scope of its own law-and consequently not authoritative with respect
to the scope of foreign la,·v. Thus, foreign choice-of-Iaw rules must be
heeded, at least to the extent that they relate to the scope of foreign
]44 Ala. Packers A,;s'n v. Indus. Accident Comm'n, 294 U.S. 532, 547 (1935).
145 See Douglas Laycock, Ji,qual Citizens oj Equal and Territorial States: The Constitu-
lional Foundations a/ChoicE' oII_aw, 92 COI.UM. L REV. 249, 295 (1992) (characterizing
the Court's approach as supposing that "the phrase cannot be taken literally, and
rherefore, ir need not be taken seriously at all").
]46 SpeRooseve]t, supra note ]3, at 2503-]0,2528-29 (offering a full faith and
credit methodology).
147 The Supreme Court of Montana seems to have reached essentia]]y this conclu-
sion. In Phillif),S 11• Gmeral Molors COl!)., 995 P.2d ]002 (Mont. 20(0), it noted that
North Carolina "adheres 1.0 the rraditional place of injury rule" and that therefore
"the scope of North Carolina product liability law does not include causes of action
for proouetS purchased in North Carolina by North Carolina residenrs which GUise
injun outside of :orth Carolina." frl. at 10] J_
law.
IIK
The only way to escape this line of reasoning, believe, is to
argue that rules are not in fact about the scope of state
law; they are something like procedural rules with no direct link to
substantive law. But that is precisely the move that Klaxon rejects, al-
beit incornplctely.
This is an important conclusion, and one to which I will return
repeatedly. Its significance for this section, however, is simply that it
demonstrates that the appeal to objectivity is no sounder for interest
analysis than it was for the territorial approach.
3. The Local Law Theory
The local law theory was little pursued by interest analysts, either
because they believed the appeal to o1?jectivity sufficient or because of
the obvious tension with the aspirations of the methodology. But it
could be seen as implicit in Westen's suggestion that states should dis-
regard foreign choice-of-Iaw rules to avoid subordinating their own
If one is willing to supplant foreign choice-of-Iaw rules with
those of the forum, why not take the next step and place the entire
matter within the authority of forum law? Indeed, if one concedes
that foreign law, for unenlightened reasons, does not apply to the case
at hand, why should not forum law come to the rescue? David Cavers
identified renvoi as a problem for interest analysis and considered and
rejected the first two moves. F,O Then he commented: "For me, the
question seems to be easy of solution .... Why ought the forum not
adhere to its own self-restricting interpretation and apply the law of
the other state, even though that law doesn't want to be applied?"':>l
As stated, this sounds much like the appeal to objectivity, i.e., a
determination that forum choice-of-Iaw rules should trump those of
the foreign state. But Cavers had a somewhat different idea in mind.
"If the forum is satisfied that its domestic rule should not be applied
and that the X rule provides an appropriate norm, given its purposes
and the connection of the event or transaction with State X," he con-
tinued, "then why should the forum refrain from using the X rule?"1:>2
148 rules may perform another function: they may resolve conflicts
between rights created by the laws of different states by specifying which right shall
prevail. [call these rules "rules of priority" in distinction to "rules of scope." See infra
Part ULA.
149 Sef. Westen, supra note 114.
150 C'\\'ERS, sl1tna note 124, at 106 (noting that the forum could "deny that X
knows its own interest or that its conventional rule identifies that
interest") .
151 fri.
1,»2 frl.
RESOLVING RENVOI
Although Cavers does not explicitly state that the" X rule" should be
applied as forum law, the logic of his suggestion is that of Cook's ver-
sion of the local law theory: the X rule should be applied because the
forum has deemed it substantively appropriate, without reference to
the question of whether any rights actually exist under X
As a general approach to choice of law, the local law theory fits
oddly with interest analysis. \A/hen interest analysis directs the applica-
tion of foreign law, it does so because the foreign state is interested
and the forum is not. It is hard to see, as a general matter, why in
such cases foreign law should be assimilated to forum law rather than
being applied directly. Cavers seems to suggest local law simply as a
specific patch to solve the renvoi problem, but even in this guise it is
inadequate. In fact, it manages to combine the defects of both the
moves already rejected.
First, the methodological contradiction that accompanied the as-
sertion of inherent distinctiveness remains. Even if the local law the-
ory is invoked only in the face of renvoi, there is no explanation for
why the existence of renvoi makes it appropriate to disregard foreign
choice-of-law rules. Second, the constitutional difficulties associated
with the appeal to objectivity persist-though perhaps to a lesser de-
gree.
F
)4 The local law theory does not allow interest analysis to over-
come the renvoi.
·1. A Solution?
"Vhat the preceding sections demonstrate is that the analytical
moves by which the territorialists vainly sought to overcome the renvoi
are no more effective in the hands of the interest analysts. None of
the three standard gambits offers a convincing reason to reject the
153 SP.f'su/Ira notes 70-74. The other approach it resembles is what Perry Dane has
called the use of rules of assimilation: the process of shaping forum law to resemble
foreign law. Assimilation likewise works by adopting some of the substance of foreign
law without regard to whether or how the adopted law would be applied bv a foreign
court. As Currie put it, foreign law is sought not as a rule of decision but "for the
collateral purpose of ascertaining some datum t hat wi 11 be relevan t in the applic11 ion
of the rule of decision which is unquestionably provided by the law of the forum."
Ct;RRII·.. s7IjJla note 98. at 69; .11'1' alsl! it!. at 178 (noting the central prublem or cOllf1icts
of laws is determining the appropriate rule of decision); Henna Hill Kay. COII/lil'l nJ
Laws: /-iIlPign IJIW as J)ullnll, 53 C\l. L. RE\·. 47 (196:'» (critically assessing CUlTie's
c1atllll1 argument).
151 The due process problem of applying forum 1;'l\" despite a lack of cOlilaus be-
tween the forum and the may bl' reduced because if foreign ell<
1ules selcCl l"onlill t1l\·. lhe n>quired conlaClS "ill be larking onlv if tIlt' jOl-eig-n nile is
ullconstilllti(!I1al, ,,'hieI1 \,:ill be a rarl' CISl'. The problem dOl'S arise, !lmvl'HT. ill elSCS
ill which tll<' foreign ehoin> of tl\\' rilles sell"C1 ihl' tn,' of a third st<-lte.
1866 "IOTRE DAME LAW REVIEW
renvoi or any method of terminating the regress if the renvOI IS ac-
cepted. Interest analysis, however, has one more device that must be
considered.
The reason Currie believed interest analysis eliminated the prob-
lem of renvoi, I have said, is likely the prima facie oddity of analyzing a
foreign state's internal law in order to determine whether it is inter-
ested and then applying not that internal law but the entirety of for-
eign law. Currie concluded that if internal law alone was consulted to
ascertain state interests, "there can be no question of applying any-
thing other than the internal law of the foreign state."IS5
The conclusion makes a good deal of sense; the premise, how-
ever, is flawed. Currie might as well have asked why interests were
determined by examining internal law rather than the entire law, and
though he did not, others did. Choice-of-Iaw rules, Arthur von Meh-
ren suggested, might very well be relevant to the question of whether
a foreign state is interested, and in consequence he urged that "the
question posed by the renvoi approach be asked at the very begin-
ning, before the forum formulates its choice-of-Iaw rule for the
case."15n One ought, in other words, to consider foreign choice-of-Iaw
rules not after foreign law has been selected but in the course of decid-
ing whether it should be selected.
Von Mehren was one of the early proponents of this position, but
he was by no means alone. Paul Freund made a similar suggestion in
1946,157 and as what von Mehren called the "functional approach" to
choice of lawl:>R grew in popularity, others followed. Some interest
analysts-notably those who sought to avoid renvoi via the appeal to
objectivity-protested on the grounds that consulting the foreign
state's choice-of-law rules amounted to subordinating local policies.
1
:>9
But the suggestion won broad approval; Egnallists Cavers, Weintraub,
and Leflar among its adherents.
I6o
155 CURRIE, supra note 98, at 184.
156 Arthur Taylor von Mehren, The Renvoi and Its Relation to Various Approaches to
the Choice-ofLaw Problem, in XXTH CE TURY COMPARATIVE AND CONFLICTS LAW 380, 390
(Kurt H. Nadelmann et al. eds., 1961).
157 See Paul Freund, Chief Justice Stone and the Conflict of Laws, 59 HARV. L. REv.
1210,1217 (1946) ("A second means of harmonizing by looking more closely at the
competing laws may be found by examining not merely the policy but the conflict of
laws delimitation of each law.").
158 ARTHUR TAYLOR VON MEHREN & DONALD THEODORE TRAuT;'vIAI , THE LAw OF
MULTISTATE PROBLEMS: CASES AND MATERIALS ON CONFLICT OF LAWS 76 (1965).
159 See supra notes 54-69.
160 Egnal, supra note 118, at 255; see also Posnak, supra note 1O £ ~ , at 1J35-36 (sug-
gesting that "the question of whether the foreign state would apply its own law should
be relevant if the foreign state follows some form of the 'new learning''').
RESOLVING RENVOI
Because this approach is quite similar to one I will consider later,
I postpone a full discussion. As put forth by von Mehren, it is not a
complete solution because it considers foreign choice-of-Iaw rules only
as useful guides to the construction of interests, not definitive state-
ments.
161
Additionally, it deems them useful only if they reflect an
enlightened or "functional" approach; almost no one suggested that a
territorial choice-of-Iaw rule should be heeded.
162
Last, it seems to
take the foreign conclusion as to whether or not foreign law applies as
a bivalent variable-either the law applies or it does not-rather than
distinguishing between the questions of whether foreign rights exist
and whether they should prevail over conflicting forum rights. This
distinction is the linchpin of what I will call the two-step model, and I
develop it further in Part III. Before the more general discussion,
however, there is one more modern choice-of-Iaw approach to
consider.
C. The Second Restatement
The scholars of the American Legal Institute began work on the
Second Restatement of Conflict of Laws in 1953, by which point the
academic revolt against Beale's pieties was well underway. Ferment in
the courts and law reviews made it difficult for the drafters to agree on
which approaches should ""in a place in the Restatement, and the pro-
ject was not completed until 1971.!f':'\
Despite its lengthy preparation, the Restatement strikes many
readers as half-baked. Its central command is to apply the law of the
state with "the most significant relationship,"l64 but identifying that
state is no easy task. Section six, the centerpiece of the Restatement,
offers seven relevant factors but no explanation of how to weigh them
161 Set' Kramer, 5ujJTa note 3, at 1004-05.
162 "1n a fully developed system of functional choice-of-Iaw rules," von Mehren
wrote, "much vital information would be stated in a jurisdiction's choice-of-Iaw rules.
1n such a system, these rules would be relatively particularized and nuanced; they
should state fairly precisely whether the jurisdiction wishes to regulate a given issue at
all, and, if so, under what conditions." von Mehren, 5ujJTa note 156, at 393. Systems
that are less well developed or less functional, apparently, could be ignored. Interest
analysts do, occasionally, even give weight to territorial choice-of-Iaw rules, but they
tend to do so opportunistically, in order to avoid an othen\'ise difficult choice, rather
than for any consistent theoretical reason. See generally Kramer, supra note 3, at 1002
(stating that the "prevailing view among interest analysts is that it is preferable to
ignore foreign rules").
163 Set' Jeffrey M. Shaman, nu, Vicissitudes oj Choia of I"aw: Thp RPstatelllf>nt (First,
Smmd) (md IntPrp.lt AnalYlis, 45 BUFF. 1,. Rn·. 329, 33] & n.R (1997).
164 .)f't' RESTATUdENT (SECOND) OF C00:FUCT OF L\ws ~ 145(1) (1971) (addressing
the issue in lort cases): id. ~ l?ii-\(l) (addressing the issue in contract cases).
'\i () T R l', 1),\;\[ F l..'\ \\' R J:: \' I F \ \
or decide cases in which the factors point to different states, a silence
that in the words of Joseph Singer "mystifies rather than clarifies,"II;:'
Because the Second Restatement contains a rnelange of different
approaches rather than a distinct conceptual perspective, it is difficult
to evaluate its success in handling renvoi. Like the First Restatement,
the Second instructs courts generally to reject the renvoi and apply
the internal law of the selected state; Inn like the First, it offers no de-
tailed explanation of why foreign choice-of-Iaw rules should not be
applied. \(i7 If explanation is sought, the same three moves discussed
above are available.
Unsurprisingly, they fail for the same reasons: nothing in the
most significant relationship test explains why choice-of-Iaw rules can
be distinguished from internal law, or gives the forum authority to
override foreign choice of rules, or suggests that foreign internal la"v
should be assimilated into forum law.
None of the moves has been much invoked by scholars, perhaps
because the Second Restatement is too indeterminate to lend itself to
theorizing. And indeed, the value of the Second Restatement for this
Article is not that it offers a distinctive approach to renvoi, but rather
that it presents a pure example of a certain type of approach to con-
flicts-one that, like the others, has saddled itself 'with unnecessary
difficulties. The renvoi problem, I will show, is indeed an artifact-
not of any particular approach to conflicts, as Currie thought, but of
165 Joseph Singer, RPal Conflicts, 69 B.U, L RE.\'. 1,77 (1989). For other examples
of academic criticism, see, for example, Laycock, supra note 145, at253 ('Trying to be
all things to all people, [the Second Restatement] produced mush,"); Shaman, sU!JI/I
note 163, at 357-64. "Because the second l?'estatement tries to be so much and do so
much, it is rifc with inconsistency, incongruence, and incoherence." fd. at 361,
166 See RESTATEMI-:NT (SE<:OI D) OF CONFUCT OF LA.ws § 8(1). Subsection 8(2)
makes an exccption for cases in which "the objective of the particular choice-of-law
rule is that the forum reach the same result on the very facts involved as would the
courts of another state," fd. § 8 (2).
167 Comment d to subsection 8 (1) describes renvoi as a problem of characteriza-
tion (dctermining whether "law" should be taken to mean internal law or entire law)
and admits that "no .. , obvious answer exists." ld, § 8(1) cmt. d. Comment h to
subsection 8(2) explains that the exception will apply "when the other state clearly
has the dominant interest in the issue to be decided and its interest would be fur-
thered by having the issue decided in the way that its courts would have done," fri,
§ 8(2) cmt. h. The Restatement does, however, suggest evaluating state interests in a
manner akin to that discussed in the preceding subsection; that is, it suggests that the
question of whether a foreign state would apply its own law is relevant to (though not
dispositive of) the question of whether that state should be deemed to have an inter-
est. Sf'e id. § 8(2) cml. k; id. § 145 cmt. h. Like von Mehren's approach, these recom-
mendations indicate some progress towards what I call the two-step model and
represent an encouraging advance,
RESOLVING RENVOI 186
9
the picture that inspires the various approaches, the picture according
to which the task of a court facing a choice-of-Iaw problem is to follow
its choice-of-Iaw rules in order to determine which state's law applies.
Understanding where this picture goes wrong, and how its error has
been embedded in the various approaches, requires the deployment
of a different perspective on conflicts. Explaining that perspective is
the task of the next Part.
III. REVISI: G RENVOI
A. The Two-Step Model
The preceding Part has demonstrated that none of the leading
approaches to conflicts offers a satisfactory resolution of the renvoi
problem. The importance of this failure \""ould be reduced if states
could at least agree on a choice-of-Iaw methodology. Renvoi would
still arise, as discussed earlier, as a consequence of differences in char-
acterization or substantive law, but it would do so less frequently. Its
continuing significance depends in part on the fact that no agreement
has materialized, and none seems likely in the foreseeable future.
The most recent of Dean Symeonides' invaluable surveys of American
conflicts law shmvs that no choice-of-la\"" approach predominates.
16
:-l
The Second Restatement enjoys plurality status, but that tends if any-
thing to reduce agreement, for the Second Restatment's application
can vary so much from court to court as to virtually amount to distinct
approaches. Methodological pluralism, in short, is the order of the
day.
That makes things harder. The interest analysts who appealed to
objectivity \vere at their most plausible when they asserted that territo-
rial choice-of-Ia\v rules were not well thought-out restrictions on the
scope of state law, but simply relics of the past, fated for obsolescence
as soon as their authors grasped the new learning.
169
Given the dog-
168 Symeon C. Svmeonides, ChoirI' oj Law in the Ammiwl1 Courts in 2002: SixtN'nlh
Annual.SIUtH",', 51 COMPo L 1,4-5,4 n.17 (2003) (citing SymeoI) C. Symconides,
ChoirI' 0/ [_all! il/ t!ll' /I IIIl'rial11 Courts in 2000: As thp Cen//lIY Turns, 49 Al\1. J COMPo L 1
(200 I)).
Hi9 SI){'. I'.g, David E. Seidelsoll, Thp Allu'riwniwlion oj ROllloi, 7 L. RL\·. 201,
211 (1968) (suggesting that courts shoulcl disregard only those lex loci decisions that
are vestiges of a less-sophisticated period). From one perspective, this makes sense as
a son or constructivc intent: it is at ieast plausible that a court or legislature awarc of
differenl approaches \\'ould decide to adopt the modern learning. From another, it
c10es not: it is precisely the older cases thai reflect the strungest commitment [0 terri-
torial scope. ;md constrllctin' intent is l10t usually inyokecl to on>ITide explicit state-
111(:'111 s to t h<: cOlltr;ll;'. The Suprenw COLI n, for i nSl,II1 C<: , has made clear I hat lo\\'er
COl Ins sholdd not foll()\,' ,I intent" to O\tTllllTl lin' SI'I'Rodri-
ged persistence of the First Restatement, the assertion rings increas-
ingly false-territorialist states mean what they say, and their choice-
of-law rules cannot be disregarded as misguided or quaint.
Von Mehren's suggestion that courts could draw important infor-
mation from the choice-of-Iaw rules of states that had adopted a "func-
tional" approach was offered in 1961 and bore at least a tincture of
the optimistic belief that all or most states would soon welcome the
new learning,170 Twenty years later, the Cramton, Currie, and Kay
casebook, with a mixture of wistfulness and irony, labeled von Meh-
ren's hoped-for day the "millennium"-the time when all choice-of-
law systems would be rationaP71 The latest version of the casebook
drops that reference; 172 the chronological millennium has come and
gone with no cleansing apocalypse. The heresy of territorialism per-
sists-and that, as far as renvoi is concerned, looks like the real end of
the world,
But the lack of consensus need not thwart us. Conflicts scholar-
ship has made progress, though one might not think so from reading
the law reviews. 173 The first significant step is the legal realists' claim
that choice-of-law questions should not be treated as esoterica but
rather understood as conventional legal questions. This insight prom-
ised release from the whirlpool of theory,174 if one could only figure
out what it meant to treat a conflicts question as an ordinary legal one,
The realists did not; after making the suggestion, they tended to fall
back on vague admonitions to use "the same methods actually used in
deciding cases involving purely domestic torts, contracts, property,
etc."17') Brainerd Currie did; he recognized that conflicts is, in part,
quez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477,484 (1989) ("If a prece-
dent of this Court has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals should follow the case
which directly controls, leaving to this Court the prerogative of overruling iL'i own
decisions.") .
170 See von Mehren, supra note 156, at 392-94.
171 5;ee ROGER c. CRA ITO ET AL., CONFLICT OF LAWS 401 (3d cd. 1981).
172 .')'ee CURRIE ET AL., supra note 26, at 248-49.
173 See, e.g.,juE GER, supra note 25, at 146 (stating that "the ferment in the United
States has not produced anything truly novel" and "the conflicts experiment con-
ducted in the vast laboratory of the American federal system has been a gigantic
failure") .
174 It is a truism in conflicts that the same approaches recur. See JUENGER, supra
note 25, at 45-46 (" [T] here are only three basic choice-of-Iaw methods ... [t] hat have
coexisted since the Middle Ages."); Patrick]. Borchers, Professor BrilmaYeT and the Holy
Grail, 1991 WIS. L. RE\'. 465, 466 ("American conflicts scholars have a remarkable
talent for reinventing the wheel and claiming it as their own design.").
175 COOK, sulJra note 70, at 43.
RESOLVING RENVOI
simply a matter of determining the scope of state-created rights and
that, to this extent, it is the same task courts perform routinely in
wholly domestic cases.
176
Given that insight, choice-of-Iaw analysis can be described as a
relatively simple two-step process.
177
First, a court must determine
which of the potentially relevant la\,vs grant rights to the parties.
17R
Doing so is a matter of consulting what I have called "rules of scope."
Sometimes this step of the analysis will reveal that only one law does
so, in which case the court has discovered what Currie called a false
conflict and can enforce the rights created by that law \,vithout further
ado. And sometimes it will reveal that more than one state's law
grants rights, and that the rights created by the different states' laws
conflict. This would be what Currie calls a true conflict, a case in
which, for :nstance, the plaintiff is entitled to recover according to
State A law, but the defendant is protected from liability according to
State B law. In such a case, the court must resort to a different sort of
rule, what I will call a "rule of priority,"
1
79 \",hich tells it which of the
conflicting rights will prevail.
So far, so good, I hope. This description of the conflicts problem
should at least seem plausible. 'What I claim for it, however, is more
than plausibility, though less than any sort of objective accuracy. My
claim is that this model will allow us to do conflicts analysis without
the sorts of problems that plague the conventional understanding-in
particular, without the problem of renvoi. Now it is time to prove that
claim.
176 See CURRIE, supra note 98, at 183-84.
177 The model is developed most fully in Kramer, supra note 108, at 291-318.
Perry Dane offered a similar, less-fully articulated account in Dane, supra note 29, at
1250-51.
178 Here I switch from speaking about whether a law applies LO whether the law
grants rights. This is commonplace in the domestic case; if we say that a statute ap-
plies to a particular set of facts, what we mean is that it creates rights. I have aI-gued
that this latter description is more useful for the conflict.s COI1lext., see Roosevelt, sujJTO
note 13, at. 2482-85, and I will show later why this is especially true as lar as renvoi is
concerned. See infra Part III .B. Currie did not free himself from the rhetoric of "ap-
plying law," which is the cause of most of his subsequent errors. Sef infra notes 207-11
and accompanying text. Kramer has not abandoned the rhetoric entirely, though he
does understand that the basic issue is the scope of the laws, which is to say, lhe righLs
of the litigaI1ls. See Kramer, sUjJra note 108, at 284 (describing "an inapplicable law"
as "a law that does not give plaiI1lilf a right to relief').
179 In an earlier article 1 called these rules "conllicts rules," in part to sllggest that
these rules were the proper focus of the field misleadingly named "choice of law." 5fe
Roosevelt, sulna note 1;), at 2468. Further thought, inspired in part by David Frank-
lin. has cOJl\'inced me that "conflicts rules" is a confusing name. anrl I renounce it.
[)!\i\II': LAW KEVIE\,'
B. R.envoi Within the Two<,>'tep JVlodel
'Within the two-step model, renvoi does not exist. The renvoi
problem arises, recall, when the forum's choice-of-law rules instruct it
to apply the law of another state, at which point it must decide
\vhether to apply the entirety of the other state's law or its internal law
alone. But a court working within the two-step model never decides to
"apply" the law of either state: it simply ascertains the existence of
rights under the various states' la\·\,s and then resolves any cont1icts.
This might seem simply a rhetorical move. Talking in terms of
identifying and enforcing rights rather than applying the law of a
state, one might think, cannot eliminate any real problems. And that
is true enough. What it can do, however, is to eliminate problems that
are not real, but are simply artifacts of the conventional description.
Within the two-step model, the insoluble question of renvoi is disas-
sembled into two discrete problems, each of which can be solved.
I. Ascertaining the Scope of Foreign Law
The first renvoi-related problem is how to determine the scope of
foreign law. More precisely, it is the question of whether foreign
choice-of-law nIles should be consulted in order to do so. This prob-
lem is relatively easy; the answer to the question is yes.
lHO
Since the
aim of the two-step model is to enforce rights created by positive law,
if the courts of a foreign state would find that no rights exist under
foreign law, the forum cannot disregard that fact.
IRI
State courts, af-
ter all, are authoritative with respect to their own law, and the scope of
foreign law is not a question of forum law. No state, for instance, has
the power to disregard an explicit restriction on the scope of another
state's statute (as, for instance, a provision allowing recovery only for
wrongful death "caused in this state"), and it has no more power to
180 At least, the problem is easy when considered explicitly from the proper per-
spective. I earlier took a different perspective on the issue. See ill. at 2479 ("Choice of
law rules are not rules of scope, and Currie was right not to defer to them."). The
analysis I offered in suppon of that assertion does not now seem to me adequate. Cf:
McGrath v. Kristensen, 340 U.S. 162, 178 (1950) Uackson, J., concurring) ("The mat-
ter does not appear to me now as it appears to have appeared to me then.") (quoting
Andrews v. Styrap, 26 L.T.R. (N.S.) 704,706 (1872».
181 I postpone a discussion of how this analysis works with regard to the various
choice-of-law systems considered earlier. How to decide what a foreign
rule means about the existence of foreign rights is slightly complicated and requires a
bit more exposition. The general point is simply that foreign courts are authoritative
with respect to foreign law, and choice-of-law rules are, at least in part, about the
scope of state law. That is uncomroversial now, though it was not in the days of Swift
v. Tyson.
RESOLVINC RENVOI
disregard restrictions imposed by that state's court of last resort.
Thus if, for example, Pennsylvania follows a territorialist approach, a
New York court attempting to determine whether Pennsylvania law
grants rights with respect to a transaction occurring in New York must
conclude that no Pennsylvania rights exist.
183
The point may seem simple, but it has significant consequences.
The renvoi problem occurs, essentially, when forum and foreign law
differ as to their scopes-each state's choice-of-Iaw rules assert that
rights are created by the law of the other state and not its own. Heed-
ing both states' laws produces the infinite regress of renvoi, but ignor-
ing the foreign choice-of-Iaw rules is impossible to justify.
Recognizing that each state's law is authoritative as to its ovm scope
(and not as to the scope of the other state's law) is the only workable
solution. Perhaps not coincidentally, it is also mandated by funda-
mental postulates of our post-Erie jurisprudence. J84
2. The Problem of Mutual Deference
The second problem, and the closest analog to renvoi proper,
arises \,,,hen a forum, after determining that conflicting rights exist,
looks to rules of priority to determine which rights shall prevail. If
each state's rules of priority provide that the other state's rights
should be given effect, the mutual deference creates a situation that
resembles renvoi.
This issue, too, can be handled with no fear of paradox, for tbe
resemblance is only superficial. The renvoi problem arises when fo-
rum choice of law directs the court to follow foreign choice-of-la\v
rules and those foreign rules in turn direct adherence to forum
choice of law. Mutual deference with respect to rules of priorit·y cre-
ates no such circle, for a rule of priority instructs a court to privilege
either local or foreign substantive rights. It does not refer to choice-
182 See sUjJl"(/ text. accompanying not.es i'\4-96.
Ji'\:.-) In ascertaining t.he existence of Pennsvlvania riglw;, Lhe New York court. should
also, of course, look to Pennsylvania law for a localizing rule, i.e" LO determine where,
according to Pennsylvania law, the transaction occurs, More generally, Lhe New YorK
cuun shoukl ask whether a Pennsylvania court would decide thai Pennsylvania law
reaches the transaClion.
Ii'\4 I am not, it should be clear, arguing that foreign choice of law rules should he
heeded to Lhe exLent thaI they assert that some other state's law applies. Indeed, J am
arguing tIlt' opposite: wheLher a particular st.ate's law creates rights is a question of
that slalc's la\\' and IhaL stale's law alone, A state's chnice-of-Ia\\' rules, then. are au-
thoritative on [he question of Ivhet.her thol stale's law creates rights, and irreit'vant to
the qtwstion or whether some other state's law does. ,)'1'(' .\/llntl [ext accompanying
notcs
N () r I{ c: j) A i\1 E I. ,\ \V REV [ E W
of-law rules, neither rules of scope nor rules of priority. The problem
of mutual deference is not different in kind from the conflict created
when each state's rule of priority provides that its own rights should
prevail.
The solution is the same in both cases, and it follows quite simply
from the recognition that while each state is authoritative with respect
to the scope of its own law, the question of what happens when state
laws conflict is not a question on which any state can claim the last
word. Thus while one state's determination as to the scope of its law
must-as a question of that state's law-be respected in foreign
courts, its resolution of conflicts between its law and the laws of other
states commands no such deference.II->:) Instead, state courts must fol-
low the direction of their legislature or court of last resort. That is,
they must follow their own rules of priority and enforce either local or
foreign rights as those rules dictate, regardless of contrary foreign
rules of priority.,s6
3. Understanding Assimilation
One puzzle remains. It is not an inherent part of the analysis
under the two-step model, but because it resembles renvoi, it merits a
brief discussion. It arises when the forum chooses to incorporate part
of the law of another state, i.e., when it adopts what I have referred to
as a rule of assimilation.
185 See Kramer, supm note 3, at 1029 ("No state's rule has a privileged status from
this multilateral perspective."); Roosevelt, supm note 13, at 2533 ("The principle that
the states are coequal sovereigns leads to no other conclusion.").
186 I reached the same conclusion in Roosevelt, supm note 13, at 2533-34.
Kramer suggests that in cases of mutual deference courts should reconsider the mat-
ter and feel free to enforce rights under their own law if that would make both states
better off. See Kramer, supm note 3, at 1032-34. I am skeptical of such freedom. In
the simple case, in which the forum's rule of priority simply provides that local rights
shall yield, I do not see how a court can claim the power to disregard this provision of
its own law. Matters can be complicated; we could imagine a rule of priority stating
that local rights shall yield, given a particular constellation of facts, unless the foreign
rule of priority directs that foreign rights yield. (We are approaching a renvoi-type
circle here, but there is no paradox yet. As long as the local rule of priority does not
instruct the court to follow the foreign rule of priority, there is no danger of infinite
regress-and a rule of priority that did so provide would be an example of legislative
perversity.) I believe that such a rule would be constitutionally doubtful, however,
because it would privilege local rights in a case featuring particular contacts, and
again in a case in which those contacts were switched (what I have called a "mirror-
image" case). This amounts to the sort of discrimination against foreign law that the
Full Faith and Credit Clause prohibits. See generally Roosevelt, supra note 13, at
2528-29 (discussing full faith and credit and mirror image cases).
RESOLVING RENVOI
Assimilation occurs whenever a state decides to build upon the
legal relations created by another. Suppose, for instance, that Con-
necticut refuses to recognize same-sex marriages solemnized in other
states. Connecticut law might nonetheless provide that for certain in-
cidents of marriage-for example, the right to make decisions about
medical care for an incompetent spouse-it will look to domiciliary
law, rather than Connecticut law, to determine who is a "spouse" enti-
tled to make such decisions. In according such rights to one member
of a Massachusetts same-sex couple, Connecticut is not enforcing Mas-
sachusetts rights. It is employing Massachusetts law in a definitional,
rather than a substantive, capacity-to identify rights-bearers rather
than to determine their rights. Consequently, as Currie recognized,
there is no need to consider limitations Massachusetts might place on
the scope of its rights, and in such cases foreign choice-of-law rules
can be ignored.
187
IV. CONVENTIONALISM RECONSIDERED
A. Conventional Approaches Within the Two-Step }\tIodel
It is possible, then, to conceptualize the choice-of-law task in a
manner that does not raise the problem of renvoi. That should go
some ways towards demonstrating that the problem is an artifact of
the conventional conflicts perspective, an assertion I will develop
more fully later. But the point of this Article is not to devise an ap-
proach that avoids renvoi, and indeed the value of the two-step model
is not that it is a distinctive approach to conflicts. The point is to
identify the fundamental error within the conventional perspective,
and to this end the tvvo-step model is most useful as an analytical tool.
I have not, after all, specified any of the rules of scope or rules of
priority that are to be used. Specifying those rules produces a partiCll-
lar conflicts approach, and by using appropriate rules, any of the con-
ventional approaches can be described within the two-step model.
Given such specification, the model allows us to examine the conven-
tional approaches in a more analytically tractable way. In particular,
as \ve shall see, it allows us to describe these approaches in a manner
in which the renvoi problem does not arise and hence to gain a
deeper understanding of the nature of the problem. The first step
towards that understanding is to depict the conventional approaches
within the model.
IR7 For Currie's recognition of the difference between assimilation and choice of
law. see CLRRIE, sulnn note 98, at ( ) 9 - 7 ~ , 178.
i':()TRE j),\,\lf: r.. '.II· RFYIEW
1. The Territorial Approach
The tcrritorial approach holds that a state's law governs all
events, and only thosc cvents, that OCCLlr within the state. rxx That is, it
holds that state laws are territorial in scope. Given this premise, and
applying localizing rules to determine a single location for events ex-
tended across borders, there is no possibility for confEct between
I;;l\vs-one and only one law will attach legal consequences to a trans-
action. With such a powerful rule of scope, the territorial approach
did not need rules of priority, and indeed it does not contain them.
Territorialism, then, is easy to describe within the two-step model: it
has a territorial rule of scope and no rules of priority.'8Y
2. Interest Analysis
Intercst analysis uses the concept of an interest as a means of de-
limiting the scope of state law. If it would further a law's purposes to
bring a transaction within its scope, the law is construed to extend to
that transaction. Because this method of determining scope does not
necessarily allocate legislative jurisdiction to a single state, interest
analysis, as the territorial approach did not, confronts the possibility
of conflict. If two states are both interested in a transaction, both laws
are construed to attach legal consequences, and if the laws differ in
substance, a conflict exists. Currie was thus forced to create a rule of
priority, which he did via the principle that in case of a true conflict
the forum should apply its own law. I ')() Interest analysis can th us be
I HH Spp I Ik.\LF., supra note 30, ::i 4.12, at 46 ("By its very nature law must apply to
everything and must cxclusively apply to everything within the boundary of its
jurisdiction.") .
189 A reliance on rules of scope alone might seem inadequate to handle the situa-
tion in which tcrritorialism encounters a different choice-oflaw approach. Then, one
might think, conflicts arise and cannot be ignored. In fact, conflicts can arise even
between territorialist courts, for each court might, for reasons of characterization ur
substantive law, believe that its state wielded territorial authority. Territorialism re-
solves both these problems in essentially the same way, by allowing forum law to deter-
mine the scope of foreign law. If forum rules of scope are imposed on foreign law, no
conflict can arise. This move is, of course, illegitimate, as [ have suggested already
and discuss further below. See su/na text accompanying notes 140-48; infra text ac-
companying- notes 199-200. For this reason, it might be more accurate to treat terri-
torialism as including an implicit rule of priority favoring whatever law is deemed
territorially appropriate. See Kramer, supra note 3, at 1039 ("By definition, the direc-
tion to apply [a state's] law means both that [that state] confers a right (the first step)
and that it enforces this right notwithstanding the concurrent applicability of another
state's law (the second step).").
190 Currie did not, of course, consider this rule of priority a solution; he thought
that true conflicts were at bottom insoluble. See CURRIE, supra note 98, at 169 (" [The
2005]
RESOLVING REN\'OI
redescribed within the two-step model as using state interests to deter-
mine scope and forum preference as a rule of priority.
3. The Second Restatement
The Second Restatement differs starkly from both the territorial
approach and interest analysis in that it does not contain any means of
limiting the class of states whose la"vs might potentially extend to a
transaction. Any state is eligible to com.pete for the title of most signif-
icantly related. From the perspective of the two-step model, this
means that the Second Restatement contains no rules of scope. Con-
sequently, all the work is done by the diffuse and comprehensive rule
of priority contained in section six. It is because of the absence of
rules of scope that I have included the Second Restatement despite its
failure to engage renvoi in a theoretical manner; the Restatement
completes the picture by providing an example of a system that works
solely via rules of priority.
4. Testing the Redescription
The following table summarizes the results of the preceding
analysis:
Territorialism Interest Analysis Second Restatement
Rule of Scope Terri toriali ty Existence of In terest None
Rule of Priority None Forum Preference Most Significal1l
Relationship
Describing the leading approaches to choice of law in terms of
rules of scope and rules of priority accomplishes several goals. By
viewing them ,,,rithin the same analytical framework, we are better posi-
tioned to see the similarities between what might otherwise seem radi-
cally different approaches and differences between ones that might
seem similar. Currie's version of interest analysis and the territorial
approach, for instance, are quite similar; each relies primarily on rules
of scope and has at best a rudimentary conflicL5 rule. (Currie, nota-
bly, did not conceive of interest analysis as a method of resolving con-
flicts but rather a means to identify cases in which no confliCi
resort to forum law] is not an ideal; it is simply the best that is available."). I'v1odcl'll
t!leor\' has generally rejected Currie's forum preference and developed a number of
more sophisticated approaches to true conflicts. Indeed, Currie himself later oJlered
mOlt' reflnclllent; he suggested that after (!<:tecting a true conllic!' the forum should
attempt a "Illuderate and restrained" interpretation of tlw two states' policies in an
effort 10 eliminate the conflic!' Sfl' Brainerd CttlTie, T!I,' IJi,lilllnPI!f'd Fhird ,'ilall',
L\\\ & C< ):"11-\11', PROBS, 7!'i4. 7!'i7
NUTRE !lAME LAW REViEW lV( H .. : - ; ( ) : ~ )
existed.) l<Jl The Second Restatement, in sharp contrast, makes no at-
tempt to segregate out cases in which the litigated transaction falls
outside the scope of one state's law.
192
All its energies are expended
on resolving conflicts via its rule of priority.
Additionally, and more important for this Article, redescription
allows us to identify and distinguish rules of scope and rules of priority
within each approach. The distinction is vital because questions of
scope and questions of priority are very different in terms of the issues
over which a particular state may claim final authority. As already
noted, the scope of a state's law is a matter very much within the au-
thority of that state's courts and legislature. The priority given to its
law in conflicts with the law of other states is not, and this difference is
essential to understanding the renvoi problem.
The value of the redescription, however, depends crucially (if un-
surprisingly) on its accuracy. The goal of this section is to demon-
strate that the approaches considered, properly understood, do not
produce the renvoi problem. If I have erred in my characterizations
of the theories, then the demonstration is of little import. It is thus
worth pausing to consider whether the two-step models set out above
are indeed true to the approaches they represent.
The territorial approach presents the easiest case. There is little
doubt that territorialists conceived of territorialism as a rule of scope.
Beale was emphatic that territorial boundaries constitute limits to leg-
islative jurisdiction, 193 and courts of the territorialist era issued equally
191 See CURRIE, 5upm note 98, at 107 (distinguishing between false conflicts, which
"present no real conflicts problem" and true conflicts, which" cannot be solved by any sci-
ence or method of conflict of laws" and should therefore be decided under forum
law).
192 The Second Restatement, uncompromising in its ecumenicalism, includes in-
terest analysis as a factor and territorialist principles in its presumptions. See RESTATE-
MENT (SEeo D) OF CONFLICTS OF LAws § 6 (1971); Spinozzi v. ITT Sheraton Corp.,
174 F.3d 842, 844 (7th CiL 1999) (noting that "the simple old rules can be glimpsed
through modernity's fog, though spectrally thinned to presumptions"). Conse-
quently, in some hands, it may resemble scope analysis.
193 See 1 BEALE, 5upm note 30, § 4.12, at 46.
[N]ot only must the law extend over the whole territory subject to it and
apply to every act done there, but only one law can so apply. If two laws were
present at the same time and in the same place upon the same subject we
should also have a condition of anarchy. By its very nature law must apply to
everything and must exclusively apply to everything within the boundary of
its jurisdiction.
Id. Interestingly, or perhaps puzzlingly, Kramer disagrees, suggesting that the First
Restatement contemplated overlapping legislative jurisdiction and that in fact territo-
rialism should be understood as a rule of priority. See Kramer, supm note 3, at 1042 &
n.197; see also Cheatham, supm note 32, at 383. I do not think Beale's treatise sup-
RESOLVING RENVOI
forceful pronouncements.
194
Confidence about the characterization of interest analysis is
somewhat harder to come by. There are doubtless those who would
deny that the determination that a state is interested is tantamount to
a conclusion that a transaction falls within the scope of its relevant
law. This Article is not an exercise in Currie hermeneutics, and I
would be content to demonstrate that the model I have arrived at is a
plausible method of operationalizing Currie's basic insights.
There are, I believe, adequate reasons to think so. First, the
redescription given captures Currie's results. A court should never,
Currie believed, apply the law of an uninterested state.
195
This is con-
sistent with, indeed equivalent to, the conclusion that a lack of inter-
est indicates that the transaction falls outside the scope of the state's
law.
196
Conversely, Currie understood the existence of an interest as
an indication that the state's law did attach legal consequences to the
ports this assertion; the section Kramer refers to argues that different states could
impose sanctions, by statute, for a nucleus of acts and consequences crossing state
lines. But his reasoning here appears to be that each state is regulating based on the
acts or consequences within its borders-that is, he grants that states can, by statute,
impose liability for what would be an incomplete tort at common law. This does not
suggest that states can regulate aClS outside their borders or that legislative jurisdic-
tion can overlap. See] BEALE, su.pra note 30, § 65.2, at 315 (stating that with respect to
a series of events crossing state lines, "either of these states has jurisdiction to make
tha.t one of the series of events which took place in that state the basis of a right"
(emphasis added)). It is because such legislation would create causes of action un-
known to the common law that Beale in this section sharply distinguished statutory
from common law. The reasoning is not especially satisfying; one might wonder why
under this theory the state in which the act is performed can do more than treat it as
an attempt, and the state in which the consequence occurs do more than treat it as
uncaused, a question Beale did not attempt to answer. The First Restatement, though
Jess clearly, seems to be applying the same principle. See RESTATEMENT OF CONFLICT
OF LAWS § 65 (] 934) (extending legislative jurisdiction to states "in which any event in
the series of act and consequences occurs").
] 94 See, e.g., Ala. G.S.R. Co. v. Carroll, 11 So. 803, 807 (Ala. ] 892).
] 95 The exceptions, in Currie's formulation of the theory, are the unprovided-for
case and, in some circumstances, cases litigated in a disinterested forum. See CURRIE,
supra note 98, at ] 52-56. As discussed more fully infra. Part rv.B.] .b, I believe Kramer
is correct in arguing that Currie erred in his analysis of the unprovided-for case and
that such cases should be understood as ones in which neither state's law granL5 the
plaintiff a right to recover. In such circumstances, the appropriate resolution is sim-
ply dismissal or the suit; the question of which law "applies" is a misleading
distraction.
196 Currie's language suggests as much: in order to assess the results of interest
analysis ill his analysis of married women's contracts. he rephrased them in the lan-
guage of explicit conflict-oflaws provisions setting out tilt' scope of \'arious slate laws.
See C\:RRIF, sUjJI"f/ Ilote 9R, at Ill-ln.
:\(JTRF. () ..\ IF L .. \\'· RF..VII·.\'·
trCll1s<lClion; it is for this reason that thl' presence of two interests back-
ing su!>st<tn tively different rules of law produced a conflict. Second,
not onlv does the redescription produce the same results reached by
Currie, it fits with his writings. Currie repeatedly characterized his
method as akin to conventional statutory If the
methodology is essentially interpretation of the internal
laws at issue, its result will be-as in the marginal domestic case-a
conclusion as to the scope of the interpreted law.
19R
The rule of prior-
ity I have selected, as already noted, represents Currie's earlier think-
ing and has not been followed by most of the jurisdictions purporting
to apply interest analysis. Its content is not especially important for
the analysis that follows, however, and its use may be justified on the
grounds of simplicity.
As for the Second Restatement, the open texture that makes it
difficult to be clearly correct or incorrect in application also poses
some problems for characterization. The centerpiece section 6 di-
rects courts to consider, inter alia, the policies of the forum and other
interested states, a description that could be taken to suggest that un-
interested states have (somehow) been excluded from the analysis at
an earlier stage. But since the Restatement does not indicate how this
exclusion is to be performed, it seems justified to treat it as essentially
a priority-based approach.
B. Renvoi and the Conventional A.pproaches Reconsidered
All three of these choice-of-law systems suffer from a common
defect. The defect is what I will call "scope imperialism." It consists in
the substitution of forum rules of scope for foreign rules. Each of the
systems described above has a particular rule of scope. (The lack of a
rule, as in the Second Restatement, simply amounts to a permissive
rule: no states are to be excluded as a matter of scope analysis.) A
jurisdiction that adopts such a system adopts its associated rule of
scope with respect to its own law. But courts applying the system apply
the rule of scope not only to local law, but to foreign law as well. This
produces a conflict (though not one that the conventional approach
acknowledges), for some foreign states will have adopted different sys-
tems, with different rules of scope. States will thus disagree with
others about the scope of their respective laws, and under the conven-
tional approach, each state will use its mvn rules of scope to ascertain
197 5jpp id. at 184-85, 364-65.
198 JrI. at 184.
RESOLVING RENVOI 1881
not only the limits of its own law, but the limits of the laws of other
states as well. I
Territorialism and interest analysis are imperialist in what could
be termed both negative and positive senses. They will refuse to rec-
ognize the existence of foreign rights in cases in which foreign courts
would, and they will "recognize" such rights when foreign courts
would not. (Such cases will arise, for instance, when a territorialist
court applies the law of a state that follO\,vs interest analysis on the
grounds that a tort occurred within that state, despite the fact that
courts of that state would find no interest. Similarly, most interest
analysts would apply the law of a territorialist state to a tort claim if
they found it interested, regardless of whether the tort occurred
outside the state.) Because the Second Restatement places no limits
on scope, its imperialism is positive only; it \,,,ilJ find foreign rights that
do not exist according to foreign courts. (A Second Restatement
court, for instance, might find that a territorialist state had the most
significant relationship to an issue in a tort claim arising out of state,
and it would at least consider that state in making its most significant
relationship determination.)
Scope imperialism should be familiar; it is the practice that un-
derlies the appeal to objectivity. And as discussed at length in the
context of that move, it is untenable. State courts and legislatures are
authoritative \vith respect to the scope of their own The point
of the redescription is to show that the choice-of-Ia\v rules of the con-
ventional approaches do amount in part to rules of scope. Once this
is granted, it follows that even under the conventional approaches,
disregard of foreign choice-of-law rules is impermissible and must be
renounced. But the renunciation is in fact a victory. Abandoning im-
perialist designs does not weaken the systems; instead, it al1mvs us to
see hmv renvoi should be resolved within them. And ultimately, it will
give us a clearer picture of the nature of the problem.
I A slightlv different, and e\"(::n more dramatic, form of impt'rialislll arises with
respect to characterization or differt'nces in internal Jaw. If a fur<:ign slatt' defines
acceptance ditlerently from the forum (recall the mailbox rule example discussed
:>ujrm nott's and accompanving tcxt), it may be that no contrdcl has b('C'1I
formed \\'ithin its borders as a matler of its internal law. A territori;llist !"orum dccid-
ing that foreign law nonetheless "applies" on the basis o!" its ()\vn rules about tilt' timc
place o!" ;\CCeplancc has pri\'ileged provisions of' its slibslalllin' contLiCt Ltw O\'er
those o!" lhe foreign state.
20() ')1'1'\Ujirt! [cxt notes 1:iq-·IH.
:-';OTRE DAME L.-\W RE\·[!':\\,
1_ Renvoi Within Systems
a_ The Territorial Approach
Renvoi within the territorial approach occurs when each state's
law provides that rights vest not within its territory but within the terri-
tory of the other state. Consider, for example, a tort suit in which the
internal laws of the tvvo states differ as to the elements of the cause of
action, with each finding that the crucial last act necessary to the vest-
ing of a right occurs in the other state. The courts of State A will thus
rule that State B law applies, and vice versa.
What are we to make of this difference of opinion? The conven-
tional understanding takes the determination that the last act occurs
in another state as a direction to apply that state's law, which leads
into the renvoi problem. But having redescribed the territorial ap-
proach within the tvvo-step model, we no longer confront a step at
which we are instructed to "apply" some state's law. We are simply
asking whether rights exist and then resolving any conflicts that arise.
In the case posited, each state's courts will conclude that no rights
exist under their own law, but that rights do exist under the law of the
other state.
This is again a difference of opinion, but the two-step model has
transformed it into one that can be resolved. Each state's courts are
authoritative as to the scope of their own law and powerless as to the
scope of other states' laws. Thus the State A determination that no
rights exist under A law binds the State B court and vice versa. A
territorialist court's conclusion that rights vest under foreign law is
simple scope imperialism, and if the foreign court disagrees, its view
must prevail. The hypothetical tort case falls within the scope of
neither state's law.
In the conventional conflicts vocabulary, this amounts to a deter-
mination that neither state's law applies. So phrased, the conclusion
is not novel. Over a century ago, John Westlake asserted that "a rule
referring to a foreign law should be understood as referring to the
whole of that law, necessarily including the limits which it sets to its
own application, without a regard to which it would not be really that
law which was applied" and described renvoi as a situation in which
"neither ... lawgiver has claimed authority."201
201 BENTWICH, supra note 127, at 28, 38. The first edition of the treatise was pub-
lished in 1858. Jd. at ii. Bate dates Westlake's acceptance of renvoi to his 1900 contri-
bution to the discussions of the Institute on International Law. See BATE, supra note 2,
at 57.
RESOLVING RENVOI
Westlake's premise for this argument was the same one for which
I have argued in this Article: that choice-of-law rules amount to sub-
stantive limits on the scope of a state's law.
202
His analysis differs from
mine in that he remained \vithin the conventional understanding, on
which the task of a court engaged in choice of law is to determine
which state's law applies. From this perspective, "no state's law" is not
an answer but a gap in the theory, and just as Brainerd Currie would
fIfty-odd years later, vVestlake fIlled the gap with forum law.
203
From the conventional perspective, it may indeed make some
sense to suppose that one cannot rest with the conclusion that a trans-
action falls outside the scope of both states' laws. The aim of the con-
ventional choice-of-law analysis is to select a law according to which
the case will be decided, and if no law is selected, scholars believed,
the case cannot be decided. Some law must therefore be applied, and
if no other presents itself, forum law is the only recourse.
204
202 See BENTWICH, supm note 127, at 29, 38 (criticizing those who would ignore
foreign choice-of-Iaw rules as neglecting "the necessary ... element of the authorit·y
claimed by the lawgiver" and describing such rules as "the limits which [the law] sets
to its own application").
203 See id. at 29 (characterizing renvoi as a situation in which "the conflict of rules
of private international law has had for its consequence that they lead to no result");
Lorenzen, sujJra note 2, at 202 (describing the conclusion of Westlake and von Bar
that "the judge of the forum, being under an obligation to render a decision in the
case, has no recourse except that of applying the lex /011"). Westlake's foreshadowing
of Currie goes further; his argument was driven by the insight that there is no sharp
distinction between choice of law and internal law, precisely the claim that Currie
would later make the centerpiece of his interest analysis. See CURRIE, sUjJm note 98, at
183-84 (describing resolution of multistate cases as similar to that of "marginal do-
mestic situations"); Kramer, supra note J08, at 290-92 (pointing out similarities in
analysis of conflict5 cases and domestic cases). In his assertion that choice-of-law rules
place limit5 on the scope of internal law, Westlake in fact anticipated a central theme
of the analysis of Brilmayer and Kramer. The clairvoyance earned him a scolding
from Lorenzen, who pronounced the "assertion that the legislator in adopting a rule
of internal law in reality defined it5 operation in space by the corresponding rule of
Private International Law ... an absurdity." Lorenzen, supm note 2, at 203.
204 The idea that the analysis must end in the identification of a law
that applies was apparently unquestioned in the territorialist era. As the preceding
note indicates, Westlake, von Bar, and Lorenzen all believed that if the analysis did
not so terminate, application of forum law was the only possible response. .'-lel' a[w,
e.g., Schreiber, supm note 4, at :130 ("There is here, therefore, a legal vacuum or gap,
which must be bridged over, and which is bridged over by applying the law of the
fOfllIn as surh: otherwise no decision could be reached in the case."). Beale likewise
warned that" [a] hiatus or vacuum in the law would mean anarchy." 1 BEALE. supra
note 30, S4.12, at 4:1. As rhe following seerion will discuss in more detail, this precise
pattern of scholarsh ip repeated itself Illany years later in the con text of interest
analysis.
NOIRE IJ.·\;\IE 1.:\\\ RLVrE\\
Again, describing the case within the two-step model avoids these
difficulties. That the tort does not fall within the scope of either
state's law does not mean that the case cannot be decided. It simply
means that the plaintiff has no rights to invoke, and his suit should be
dismissed for failure to state a claim.
This result will surely seem unfortunate. The plaintiff has, after
all, suffered a tort according to the internal law of each state, and it
makes little sense that he cannot recover simply because the events
constituting the tort straddle state lines. But what this apparent fail-
ure of the system suggests is simply that rigid territorialism is not a
very sensible rule of It does not suggest that states do, or
even should, have the power to disregard sister state determinations
that sister state law does not reach a particular transaction.
b. Interest Analysis
Renvoi within interest analysis is controversial; as we have already
seen, Currie believed that his approach eliminated the problem. In-
deed, conventional interest analysis would view renvoi as a false con-
flict, the easiest sort of case to resolve. Renvoi, within interest analysis,
arises when each state court determines that its state is not interested
but the other state Because conventional interest analysis tends
to privilege the forum's assessment of sister state interests over the
assessments of the courts of that state, it will conclude that only one
state (the foreign state) is interested.
But if, as I have argued, the determination of interest is in fact a
conclusion about the scope of state law, it is again a conclusion each
205 Beale seemed at least partially aware of the problem; he suggested that in cases
where the elements of a tort occurred on different sides of a state line, each state
legislature could assert jurisdiction on the basis of the occurrences within its border.
See 1 BE.\LE, supra note 30, § 65.2. at 315 (stating that with respect to a series of events
crossing state lines, "either of these states has jurisdiction to make that one of the
series of events which took place in that state the basis of a right"). As a practical
matter, this comes perilously close to recognizing overlapping legislative jurisdiction,
and Cheatham (and later Kramer) both read Beale to have done so. See Cheatham,
supra note 32, at 383; Knmer, supra note 3, at 1042 & n.197. A.,; discussed supra note
193, I believe they miss a distinction Beale attempted to maintain between regulating
a single act and regulating a series of act'; and consequences. In their defense, I
venture the obselvation that the distinction is sufficiently implausible that overlook-
ing it might be the most charitable treatment.
206 The tort used as an example in the previolls section will not
necessarily produce such a case. The easiest way to think about a renvoi between two
states following interest analysis is simply to suppose that, for whatever reason, the
State 1\ court's analysis indicates that State A is not interested but State B is, while the
B court's analysis indicates the reverse.
RESOLVING RE VOl 188
5
state has the authority to make with respect to its own law and no
other. Thus, each state's assessment that it is not interested must be
accepted by the other. Conversely, each state's assessment of the
other's interest must be disregarded as scope imperialism. The cor-
rect conclusion is that neither state is interested; neither state's law
grants the plaintiff rights.
Within the territorial system, such a case might be described as
one that falls into the gap bet\.veen jurisdictions. vVithin interest anal-
ysis, a name exists already: renvoi is simply a special instance of the
unprovided-for case.
207
Currie found the unprovided-for case troub-
ling; like Westlake before him, he was unwilling to accept the conclu-
sion that in some cases neither state's law would govern the
transaction. And like Westlake, Currie suggested that in an unpro-
vided-for case the forum should apply its own law, apparently on the
theory that othervvise it would be impossible to reach a decision.
20
f)
Such perfect duplication of the preceding generation's theoreti-
cal moves gives support to those who argue that conflicts scholarship
moves only in circles.
209
The argument can be rebutted in this case,
however, for Lan)' Kramer subsequently took up the question and ar-
gued that the correct resolution of a truly unprovided-for case is the
dismissal described in the previous section.
2lO
This is, I think, an un-
deniable advance. It is frequently the case that no la,-\' gives the plain-
207 I say "special instance" because the unprovided-for case will arise whenever
neither state is interested. Renvoi requires in addition that each state conclude the
other is interested. ,I\;;, the text explains, however, this conclusion is beyond the power
of state courts and can be disregarded. Renvoi thus should be analyzed like any other
unprovided-for case.
208 This "solution" has an undeniable odor of ad-hocer)', and critics of interest
analysis seized on the unprovided-for case as indicative of serious problems with the
theory. David Cavers commented that such mULUal deference seemed to create "a
gap in the law-a case fallen bet\veen the stools of two legal systems" and suggested
that it would cause problems for interest analysis. See CWERS, sl.IjJrU note 124, at
105-06. Other reactions were stronger. See, e.g., Aaron D. Twerski, Neumeier v.
Kuehner: \VheJP!\rl' the Emperor's Clothes?, 1 HOFSTRJ\ L. RE\'. 104,107-08 (1973) (argu-
ing that "interest analysis met its Waterloo with the advent of the unprovided-for case"
and "[o]nly the almost mesmCl"il.ing effect of the brilliant Currie writing [prevented
his discussion of such cases] from heing sllbjectecl to the strongesl ridicule"). From
the conventional perspective, the reaction is unclerstandable: if the point of choice of
law is to identif)1 the law that applies, the unprovided-for case looks like a failure. But
as the text discusses, the two-step model resolves the problem; the only failure is the
belief that some law Illust "apply."
209 .'iN', I'.g., .Juenger. sUjJra note 2.'1. dt 11 ("To be sure, as far as noveltv is con-
cerned. one can hardl\' expect il from anv conflicL<; scholar cunsidering that the three
possibk approaches have been known since rhe days or the statlltists··).
() ......1'1' Krana'r. '1Ilml note 1()9, at 1071.
NOT R Ie: U .'\ ;\l L L.\ W R Ie: V r Ie: W 1"oJ. ;-)O:.'J
tiff a right to recover, and the conclusion neither prodLlces anarchy
nor prevents decision. The inability of Beale, Westlake, and Currie to
recognize this commonplace fact stems from their shared premise
that the purpose of choice of law is to identify the law that applies to a
transaction, and the concomitant belief that some law must apply.:!ll
But if we consider the choice-of-Iaw analysis as simply a process of first
ascertaining the parties' rights and then resolving any conflicts be-
tween them-that is to say, if we employ the same methodology used
to resolve domestic cases-the possibility that no law "applies" is un-
troubling, indeed, entirely banal.
c. The Second Restatement
vVithin the Second Restatement, renvoi occurs when each state's
court believes that the other state has a more significant relationship.
Because the Second Restatement works via rules of priority rather
than rules of scope, the problem takes a somewhat different form
within the two-step model. Each state's law, according to the courts of
that state, brings the transaction within its scope, but each is willing to
vield to the law of the other state.
I
This problem should also be familiar; it is the problem of mutual
deference, which has been raised and resolved earlier. Foreign rules
of scope must be heeded, I have said, but foreign rules of priority
need not be. Which of two state laws should yield when they conflict
is not a matter of setting the scope of state law, and hence not a ques-
tion on which one state can bind the courts of another. It is forum
rules of priority that bind the forum, and they must be followed. Con-
sequently, each state should decide the case under the internal law of
the other state, in obedience to its own rules of priority,2l2
211 Conceptually, the problem here is that describing the choice-of-Iaw question as
"What law applies?" has led scholars to conflate two different senses in which X law
might "apply." In the first sense, we mean that the court 'will decide the case accord-
ing to X law. In the second, we mean that the X law attaches legal consequences to
the transaction-it gives one or the other party rights. The unprovided-for case (and
the renvoi, as a special instance) arises when neither law attaches legal consequences.
The correct conclusion here is simply that the plaintiff cannot recover. It is of no
moment what law is "applied" in the first sense, just as it is of no moment whether a
court "applies" one of two statutes neither of which gives a right to recover. The
common mistake of Currie and Beale-and even of Westlake-is to think that a con-
clusion that no law "applies" in the second sense has some consequence for a court's
ability to decide the case.
212 Kramer disagrees, as discussed supra note 186. I think that the conclusion fol-
lows from straightforward positivism-a state's rules of priority are binding on that
state's courts-and also serves the constitutional purpose of preventing states from
discriminating against foreign law. See Roosevelt, supra note 13, at 2533-34.
RESOLVING RENVOI
2. Renvoi Across Systems
Within the two-step model, the renvoi problem is no more diffi-
cult across systems than within them. For courts that follow interest
analysis or the territorial approach, renvoi arises only when neither
state's law grants rights. Again, each state's determination as to the
scope of its law should be heeded, and its determination as to the
scope of the other state's law should be disregarded. A renvoi be-
tween an interest analysis and a territorialist court is again simply a
situation in which no law gives the plaintiff a right to recover.
'When territorialism or interest analysis confronts the Second Re-
statement, the problem is again slightly more complex. In such a
case, the law of the territorialist or interest analysis state does not, by
its terms, include the transaction within its scope. The law of the Sec-
ond Restatement state does, but it prescribes that rights created by its
law should yield to contrary rights created by foreign law.
How is this problem to be resolved? Once again, the distinction
bet\-veen rules of scope and rules of priority shows the way-though
this time by a slightly different path. Rules of scope, I have said, are
about the existence or nonexistence of rights, while rules of priority
deal with the question of which rights should be given precedence. A
rule of priority directing that local rights should yield to foreign rights
does not tell the court to "apply" foreign law, and if no foreign rights
exist, the local rights should be given effect. Thus the case should be
decided in accordance with the law of the Second Restatement state.
V. RESOLVING RU'I\101
\i\lhat this redescription has shown is that renvoi does not, or
need not, exist either \vithin or between any of the conventional ap-
proaches to choice of law. And it has shown something more. The
reason that the renvoi problem arises is that the conventional ap-
proaches assume that the scope of foreign law can be determined by
the forum's choice-of-Iaw rules. That is, they assume that forum law
can determine not merely whether forum law grants rights to the par-
ties, but ,,,'hether foreign law does as well. That they assume this is
unsurprising; the idea is the basic starting point for conventional
choice-of-Iawanalysis. The whole point of a choice-of-Iaw system, after
all, is to determine when some other state's Iav,, applies. As Lorenzen
put it:
The object of rhe science of the Private International Law of a par-
ticular country is to fix the limits of the application of the territorial
law of Stich country. bur its aim is nor restricted to rhis. It includes
~ ( J T R I ' 1l,\\11': L.\\\ REVIFW
also the determination of the foreign law applicable in those cases
in which the lex jfni does not contra!':' I '>
But the idea that forum law can decide this second issue, as I have
argued, is mistaken in two ways. First, it is an unconstitutional usurpa-
tion of authority, a denial of the basic proposition that a state's courts
have the last word on the meaning of their own law.
214
And second, it
is unhelpful; it produces the renvoi problem and others.
21
:. Conflicts
will not advance until it frees itself from the vocabulary that presses
this idea on us, what I have elsewhere called the rhetoric of choice.
2lh
There are, I have suggested, good reasons to do so. The rhetoric
of choice-the suggestion that forum la-vv can determine the scope of
foreign law-overstates the forum's ability to disregard foreign deter-
minations that foreign law does reach a transaction, hiding conflicts
behind the veil of choice.
217
Additionally, as argued in this Article, it
overstates the forum's ability to disregard foreign determinations that
foreign law does not reach a transaction, the problem inherent in those
decisions rejecting renvoi. But hiding the difficulties of conflicts does
not make them go away; it simply causes them to reappear in different
form.
There are also what might seem to be costs. Chief among them is
the abandonment of the fundamental aspiration of the field of con-
flict of laws. If what I have said is correct, it demonstrates that choice-
of-law rules cannot resolve the very question that called them into be-
ing. Thus, what I recommend is in a certain sense the death of choice
of law.:
ns
This will surely strike some as shocking. 2\ () Overcoming a prob-
lem by calling for the elimination of the field of law designed to solve
21;:) Lorenzen, supra note 2, at 204.
214 ,'-iee supra text accompanying notes 139-48.
215 At a higher level of generality, we could say that the problem lies in framing
the choice-of-Iaw question in terms of what law "applies" in the first place. For an
explanation of the problems this formulation has caused for the analysis of renvoi and
the unprovided-for case, see supra note 211.
216 See Roosevelt, supra note 13, at 2453.
217 See id. at 2465. The failure of modern choice-oflaw theory to address existing
conflicts is a theme of much ofJoseph Singer's work, though his analysis differs from
mine in significant respect'>. See, e.g., Joseph William Singer, A Pragmatic G1Lide to Con-
flicts, 70 B.U. L. REv. 731 (1990);Joseph William Singer, Real Conflicts, 69 B.U. L. REv.
1 (1989).
218 Only a certain sense, because there remains the considerable task of crafting
rules of scope and priority.
219 Though not, presumably, those who have already read the field its last rites.
See, e.g., Lawrence Lessig, The Zones ofCybenp(l(;e, 48 STAN. L. REV. 1403, 1407 (1996)
(stating that "conf1icts of law is dead-killed by a realism intended to save it").
RESOLVING RENVOI 188
9
it is not the conventional understanding of a theoretical advance; it is
more like prescribing the guillotine as a headache remedy. But it is
hardly unprecedented. Currie wrote that "the system itself is at
fault,":220 and others took him to be advocating a very similar abandon-
ment of the venture.
nJ
In fact, the idea that conflicts should return
from its self-imposed exile and rejoin the body of ordinary legal analy-
sis is a staple of the literature. The real question is not whether this
reconciliation is desirable; it is why it has not yet occurred.
The most obvious reason is that the conventional understanding
made good sense in Joseph Beale's Armed with the general
common law, a court could confidently identify the last act necessary
to the vesting of rights, and given territorialism's status as part of the
nature of law, it could indeed decide which state's law applied to a
transaction. Modern choice-of·law theory no longer sets out to iden-
tify a single state with authority to regulate, but it has retained much
of Beale's vocabulary and conceptual framework, even while discard-
ing his methodology. In particular, it has retained the central idea
that forum law can determine whether foreign law "applies" or does
not.
Forum law cannot do this. Indeed, though the determination
might have seemed possible in Beale's day, the lesson of Arie is that it
never was. Choice of law, understood as a body of forum law that can
tell a court \vhich foreign law to apply, is a phantasm. But it is a pow-
erful one, and strong spirits leave hangovers in their \vake. vVhat con-
220 CL'RRIE, sulHa note 98, at 185. Currie rnade this observation, moreover, in re-
sponse to the anticipated criticism that "it is no great trick to dispose of the character-
istic problems of a system by destroying the system iLself." fri.
221 Kegel remarked that "[s]ince the applicability of domestic substantive law is
determined by its construction and interpretation, the body of law which we formerly
knew as Conjlirt of I_aws disajJIJean! It fades in to substantive low and, on issues involving
constitutionality, into constitutional law." Gerhard Kegel, 'nu' Crisis in Conflirt of I,aws,
112 RFCUEJL DES COURS 91, 115 (1964).
222 Russell Weintraub, for example, has argued that "the conflict of laws should
join the mainstream of legal reasoning." Russell.J. Weintraub, A lJifensp of Interest
Allalysis in 11/.1' Con/lirt oj Laws and the Usp oj that Anal)'sis in Prod1.lrl.l Liability Casps, 46
ChilO ST. L.J. 493,493 (1985). \Nalter Wheeler Cook, as already noted, urged rather
vaguely that conflicts cases should be resolved by the ordinaly tools of legal analysis.
COOK, SlljJra note 70, at 43. And Currie's basic insighl, alleast as Kramer and I under-
stand him, is thal analysis is not different in kind from tbe ordinary
process of deciding whether a state's law applies to a marginal domestic case. See
CtlRRl1-. sli/no note 98, at 183-84; Kramer, suln-a note 3, at 1005.
223 II also makes some sense in the international context, where authoritative rules
regarding the treallnent of other countries' law are bard to find. It clot's not make
sense in tbe Jllodt-rn Uniwd States, where SItCh qucstions are gOHTned hy the
Const itllti (>n.
NOT REDA M r: [_ A W R 1-: V [ 1': W
flicts currently suffers from is just that-the aftereffects of an
overindulgence in metaphysics. Implicit in the conventional vocabu-
lary of choice of law is a mistaken conception of the nature of the task
and of the authority of forum law. That is the picture that has held us
captive; that is the ambition we must renounce.
CONeI.USIO]'..'
Choice of law, as conventionally understood, has set itself an im-
possible task. The basic picture animating the venture-that a forum
can consult its own law to determine whether a foreign state's law ap-
plies-ignores or defies the fundamental precept that state courts and
legislatures are authoritative with respect to the scope of their own
law. That error is embedded as deeply as can be-it is the starting
point and basic postulate of all conventional choice-of-Iaw theories.
In the same way that a faulty axiom will produce paradoxes in a logical
system, this error creates ripples on the surface of the theory, and
renvoi is one of those.
Renvoi, as I have analyzed it, arises when each state contradicts
the other as to the scope of their respective laws. The conventional
understanding asserts that states do have authority to determine the
scope of other states' laws, but that postulate leads naturally to the
paradoxical infinite regress; if states have this power, each should be
able to exercise it. Thus, if State A law asserts that State B law applies,
and State B law that A law applies, the conventional understanding
takes each assertion as legitimate and does not allow us to pick be-
tween them.
What I have argued is that a different approach, which takes
neither assertion as legitimate, avoids the renvoi problem. If we sup-
pose that the scope of State A law is a question of State A law alone,
then "State B law provides that State A law applies" is simply not a
well-formed proposition. Excising such statements from the choice-of-
law vocabulary prevents the paradox from arising, and that excision is
what the two-step model achieves.
There is, then, something to the idea that renvoi resembles a
problem of logic. It should make us question our premises and revise
the one that produces the contradiction. But the analysis of this Arti-
cle has not proceeded as a matter of pure logic, and neither is its
conclusion put forth simply as a means to avoid paradox. Instead, I
have claimed as a constitutional matter that the power to set the scope
of a state's law lies with that state and that state alone.
224
Renvoi is a
224 See su.pm text accompanying notes 140-48.
RESOLVING RENVOI
logical problem that could only arise in a legal system other than our
own, and once the constitutional allocation of power is understood, it
disappears.
225
Choice of law, or a certain vision of it, disappears as well. The
conventional understanding of choice of law attributes to states a
power that the Constitution denies them. But giving up on the idea
that forum law can determine whether foreign law applies is no sacri-
fice. It is, instead, the only way in which conflicts can progress.
225 Thus the Constitution does not resolve the problem of renvoi in the interna-
tional seuing. The basic idea that nation-states are authoritative interpreters of their
own lay. occupies a similar fundamental place in international Jaw, however. As Chief
Justice Marshall put it in Elmend01fv. Taylor, 23 U.S (10 Wheat.) 152,159-60 (1825),
"no Coun in the universe, which professed to be governed by principle, would, we
presume, undertake to say, that the Courts of Great Britain, or of France. or of anv
other nation, had misunderstood their own statutes, and therefore erect iL'ielJ into a
tribunal which should correct such misunderstanding." Understanding the nature of
the problem in the manner developed in this Article should allow resolution on that
basis.

N(lTRE

DAME

LAW

REVIEW

1.

2.
V.
CONCLCSION

Renvoi Within Systems a. The Territorial Approach b. Interest Analysis c. The Second Restatement Renvoi Across Systems

. . . . .
. .

RESOLVING REN\/Ol

1882 1882 1884 1886 1887 1887 1890

INTRODUCTION

The task of a court confronted with a choice-of-Iaw problem, conventionally conceived, is to determine which of several different jurisdictions' laws applies to the case before it. I The question of what law applies is a question the court answers by consulting the law of its own state; that is, it is a question of forum choice-of-Iaw doctrine. If the forum's choice-of-Iaw rules direct the application of forum law, the court proceeds to apply the forum's substantive, or internal law: the tort, contract, or other law that determines the parties' substantive rights. The forum's choice-of-Iaw rules might also direct the application of another state's law. At this point a question arises. Should the court, when instructed by forum law to apply the law of another state, apply that state's internal law, or should it apply the state's entire law, including its choice-of-Iaw rules? The latter might seem the obvious choice-applying a state's law, after all, presumably means reaching the same results that the courts of that state would reach-but it opens the door to an alarming possibility. Suppose that State A's law directs the application of State B's law, and the State A court understands this to mean the entirety of State B law. If State B's choice-oflaw rules point back to State A law, it is natural again to understand this as a reference to the entirety of State A law, and an unending series of references back and forth arises. 2
Though renvoi arises in the international context, this Article will focus on the domestic, interstate version, both to keep things as simple as possible and because I will argue that the constitutional provisions governing interstate relations significantly constrain states in the choice-of-law venture. For international conflicts, the constitutional constraints are obviously lesser, but the conceptual points I make retain significance. 2 Other descriptions of the repetition thus created abound. Renvoi has been called: a "circulus inextTicabilis," JOHN PAWLEY BATE, NOTES 0 THE DOCTRINE OF REi'.'VOI IN PRIVATE INTERNATIONAL LAW 49 (1904), an "endless circle," Lindell T. Bates, Remission and 'Transmission in AIIlPTir:an Conflict oj Laws, 16 CORNELL L.Q. 311, 313 (1931), and a "game of battledore and shuttlecock [or] international lawn-ten-

RESOLVING RENVOI

The doctrine that a reference to the law of another state is a reference to the entirety of that state's law is the doctrine of renvoi, and the question of whether it should be followed-whether, in choice-oflaw terminology, the renvoi should be "accepted" or "rejected"stands out even among the notorious esoterica of conflict of laws as unusually exotic and difficult. 3 For nearly t\vo hundred years it has troubled the courts,4 driving judges to distraction and scholars to treatises on deductive logic.!'> Though "[j]uristic speculation has been almost infinite,"6 scholarship has not settled the matter; much of it, "upon analysis, is seen to consist of nothing but dogmatic statement[s] of the result desired to be reached."7 In more recent years, the controversy has abated, as scholars seem to have accepted the claim, put forward by proponents of modern policy-oriented approaches to choice of law, that these newer approaches offered a decisive answer. 8 But the claim is untrue, and the problem persists. 9 The solutions advanced by the policy-oriented approaches are essentially the same as those offered by the territorialists,
nis," Ernest G. Lorenzen, The Renvoi Them)' and the AplJlication of Foreign Law, 1() COLUM. L. REV. 190, 198 n.33 (1910). 3 See, e.g., Joseph M. Cormack, Renvoi, Characterization, Localization and Prf'lill/.inm)' C2uestion in the Conflict of I,aws, 14 S. C-\L. L. REV. 221, 249 (1941) (calling the doctrine "famous, insidious, and baffling"). The matter of pronunciation presents all additional difficulty: "rohn-vwa"? "ren-voy"? "ron-voy"? The first is correct given the word's French origin; those wishing to Anglicize (and after all, no one calls the capital "Pah-ree") use one of the latter two. See Larry Kramer, Return of the Renvoi, 66 N.Y.U. L. REv. 979, 980 (1991) (" [P]roper pronunciation is something like 'rOIl-V\Va,' though some crude American scholars (myself included) say 'roIl-VOY.''').

4 See Ernst Otto Schreiber, Jr., The Docl1ine of the Renvoi in Anglo-American Law, 31 HARV. L. RE\'. 523, 523 (1917) (describing early renvoi cases).
5 For an example of the former, see In re Tallmadge, 181 N.Y.S. 336, 348 (Sur. Ct. 1919) (deploring the "fundamental unsoundness" of the renvoi doctrine); for the latter, see, for example, J.c. Hicks, nil' Liar Pam.r{ox in Legal Reasoning, 29 Ci\"1BRIDCE LJ. 275, 278-80, 284-89 (1971) (discussing renvoi in terms of the theories of Bertrand Russell and Alfred North Whitehead). I will have a bit to say about the logical structure of the problem, though I do not, in the end, think that approaching it from the perspective of formal logic is useful. 6 7
8

Note, A Distinction in the Renvoi Doctrine, 3:) Cormack, supra note 3, at 249.
Sef inj1"a Pan II.B.

BAR\'.

L. RE\'. 454, 454 (1922).

9 .)pf infra Pan II.B. Kramer, supra note 3, at 1003-13, deserves credit for the most penetrating and comprehensive statement of this point. My account of why the modern approaches do not solve the renvoi problem is similar to Kramer's, but it adopL5 a slightly different perspective and relies in pan on constitutional considerations.

REV. which is that its vision of what courts are doing is unconstitutional. for it lay in our language and language seemed to repeat it to us inexorably. Part II examines the attempts to solve it within particular choice-of-Iaw systems: the territorial approach and the more modern. between laws. 12 See LUDWIC \'\!ITTCENSTEIN. rather th. and conceptualizing conflicts in a different way. and this Article is one in a series of attempts to demonstrate that the persistent problems of the conventional understanding are not inevitable. It generates unnecessary diflicui ties.<n choices. This Article addresses what is in some ways the converse of that problem: the extent to which one state may disregard another's determination that its law does not reach a transaction. 1953) ("A picture held us captive. it should be a live one according to the conventional understanding. the picture is unhelpful. because the rhetoric of choice overstates the extent to which one state may disregard another state's determination that a transaction falls within the scope of its law. Moving beyond that picture. REV. I!> Part I of the Article sets out the renvoi problem as it is conventionally understood. why it occurs. Anscombe trans.E. . 'o Consequently. L. See infra Part 11. 11 Erwin N. But more to the point. Renvoi Revisited.B. At least. Griswold. is that certain conventional ways of talking about choice of law have given us an unfortunate picture of what a choice-of-Ia'w analysis involves. And we could not get outside it. and what the problem might tell us about choice of law more generally. is not subject to the same criticisms. 1167 (1938). In his 1938 assessment of the problem. 2448 (1999) _ The broad purpose of that article was to suggest that it would be more useful to talk in terms of conflicts. 1165. the dispute over renvoi should be a live one. it produces problems such as renvoi. policy-oriented approaches. It suggests that these attempts 10 Kramer's approach. 17Le Myth oj Choice oj Vnu: Rethinking Conflicts. to end the suspense. it also amplifies and refines some of the points of the earlier article. It focuses more broadly on the conventional understanding of choice of law as a matter of "determining what law applies" in the context of renvoi. And. it corrects a couple of mistakes.of the nature of the choice-of-Iaw process. PHILOSOPHICAL hVESTICATIONS § 115 (G. see Kermit Roosevelt III. 51 HARV. would help the field a great deal. L. l 5! One of the unfortunate things about this picture is that it is false in perhaps the only sense such a picture can be false.and they sufler from the same defects. Erwin Griswold lamented that "we are apparently on a merry-go-round" and asked" [h] ow is it possible to get off?" 11 I want to ask a different question: how did we get on in the first place? And my conclusion. My goal in this Article is not to take a side in the dispute-not to argue that renvoi should be accepted or rejected.")_ 13 For my earlier attempt. It is instead to shed some light on what kind of a problem renvoi is.. 97 MICH.M. I admit. though I do not agree with it in all particulars.

\" or should it apply \. And this. in which methodological pluralism obtains. none of which is insoluble or paradoxical." 11 Modern formulations are similar. should court X applv Y subslantiv<:. The problem.. .' the SlaLe X COlin. Part IV uses the model developed in Part III as an analytic tool to examine the territorial and modern approaches to choice of law and to gain a different perspective on the nature of renvoi within those systems. RE\. as will become clear. ill Chuifl' o! Law. the idea that a court's task in performing a choice-of-Iaw analysis is to decide which state's lav.."in'. is the artifact of a particular conception of the choice-of-Iaw process.1\\' as ~l qLwstio!l 10 be oelcrlllined b. L. the forum court must decide . That.g.. O'Hara & Larr\' E. and more generally. the doctrine of the 11!nvoi is that.\ Ia\\. CJ II. at '~54. arguing that renvoi. and demonstrates that this exacerbates the problem of renvoi.he problem of the renvoi arises. THE PROBLE!'v1 Choice-of-law rules. choice·of-Jaw rules .law rules might ]4 i\ote. Ribslcin. when by its rules of the conflict of laws a court must apply the law of some other legal unit.RESOLVING RENVOI are actually much more similar than has previously been recognized and that they fall prey to similar difficulties. is the point of choice of law. j·ilJlll Politic. 67 l!. the supposition that one state's law can determine whether another state's la. la. is that each state's choice-of. 1:l .. vVhen they do. building on a model developed by Larry Kramer. ". imposed upon on us by the conventional vocabulary-specifically. ] 196 (2000) (" I't\'] hen court X decidl:'s thaI Y stall:' law applies. Part III sets out a different approach to choice of law. I'. And Part V offers the inevitable summation. is not a difficulty inherent to the venture. it must apply not only the internal law of that unit. of course. will direct the application of some law other than the law of the forum. It also examines the current situation.'lIC )' 1. I show. und('r SLue . The importal1t aspect of this formulation. there are several narrmv and distinct questions.. after all. Within this model. is the occasion at which t. but also its rules of the conflict of laws. In place of the interminable circle of references back and forth. like many other apparently intractable problems in choice of law. I. :"). is that it se('s tile . One of the earliest discussions of the problem phrased the issue as follows: "Broadly stated. it. Still less is it a logical puzzle to be tackled by appeals to Russell and Whitehead. applies..' applies. Instead. indeed. Erin A. it does not exist.·"hat it means to apply the law of another state.I til 1}Jicil'l/c\.)]. 11. the problem of renvoi ap~ears quite different. as already noted. at least on occasion. oil/tHO note 6.lpplicuioll of Sr.

17 More precisely. which means that a court would be unable to reach a decision: A and B law. LOGIC 25-33 (1984) (discussing "the paradox of the liar"). then PI must be true. as defined. the renvoi problem can be compared to the circle created by the following two propositions: Pl: The following sentence is true. while State B's law provides that the plaintiff should prevail if she would under the law of State A. See infra notes 79-82 and accompanying text..IE LA\-\' RE\'[EII' [VOl. .Ai. conceptually linked to the welter of related paradoxes arising from the simple proposition: "This sentence is false. either supposition fits equally well. if A law does not. If PI is true. 34. These sentences do not create a paradox. the truth-values of PI or P2-into the circle. as they would if one asserted the falsity of the other. And if P2 is true.41-46 (1938) (comparing renvoi to standard paradoxes of self-referentiality). L. it is quite likely that the proposition has 16 See generally. with no obvious end in sight. PA. Neither supposition leads to a contradiction. do not resolve the case. then B law does as well. P2: The preceding sentence is true.. there is something to be said about what kind of a problem renvoi is. for example. neither does B law. REv. At the outset. 87 U. renvoi could be modeled as a situation in which State A's law provides that the plaintiff should prevail if she would prevail under the law of State B.g. then P2 must be true.j point to the law of the other state. Renvoi Does Nol Involve a Logical Fallacy. One answer is that it is a problem of self-referentiality. Cowan. If we suppose that the question in a particular legal case is whether the plaintiff should prevail. If State A law so provides. The problem in this situation arises from the fact that there is no way to put content-the substance of A or B law. in which case PI must be false. One way of expressing this conclusion would be to say that when it is impossible to decide whether a proposition is true or false. setting up a series of references back and forth. the renvoi problem appears in this form if one adopts the local law theory. we could suppose either that State A law provides that the plaintiff prevails or that she does not. e. What they create is an indeterminacy about their truth-values. Likewise.. or both false. What if PI is false? Then P2 must be false.."[(. GEORG HENRIK VON WRIGHT. Thomas A. a situation in which it seems equally plausible to characterize them as both true. So this supposition simply leads to the conclusion that both are true. HO:. PHILOSOPHIC.No'rRF D:\II. 17 As I will suggest later.

and it captures something important about the problem: the extent to which it relies on the supposition that State A law has something to say about whether State B law applies to a transaction. and term the situation thus created a "viciolls regression" resulting from the faet that "we have pretended to define III and p~ in terms of each other and ha\"C therefore not assigned to them any meanings at all. 35 COLUrvl. Moritz Schlick. State B law: State A law applies. I 18 Such an assertion is recognizable from the philosophical perspective. L. This depiction of renvoi is probably closer to the conventional understanding than the incomplete definition. Paradox arises when the truth-values of the propositions change as the cycle progresses.. then P2 must be false. See Felix S. renvoi appears as an incomplete definition. e." CI~\RENCE IR\JNC LL\\IS & COOPER HMI. 86-88 (AJ Ayer ed. at 1167 n.g. 19 Erwin Griswold."). in LOGICAL POSITIVISM 82. In the one-proposition version ("This sentence is false") the supposition that the sentence is true implies that it is false. Those authors discuss the paradox created by two sentences. Griswold. The two-proposition version is this: PI: The following sentence is true. The shifting answers to the question match the fluctuating truth-values of PI and P2. we can conclude that P2 is true. and hence PI must be true. in one of the leading articles. SVl\·1BOLIC LOGIC 438-85 (1932)). but State B law tells us that State A law applies. if we suppose that PI is true.RESOLVING RENVOI not been defined sufficiently to make it usefu1. S'ee. 809.8 (citing CLARENCE IRVIJ'o:(. which implies that PI is false.. 826 (1935) ("All concepts that cannot be defined in terms 01" the elements of actual experience are meaningless. 1H From this perspective. 1959). It resembles the logical positivist claim that the meaning of a proposition is iL<.()IJ) L\~l. however. Here. It also holds a place in the legal canon. Renvoi resembles this model if we suppose. . Positivism and Rmlis1I/ (David Rhynin trans.FORD. that the question to be answered is "What state's law applies?" Now name our propositions "State A law" and "State B law" and define them as follows: State A law: State B law applies. P2: The preceding sentence is false. in which case it is true.). here renvoi appears as a paradox. as does the conventional approach to choice of law. directs readers to a book by Lewis and Langford. Transcendental Nonsense and the Functional Ajlpmach. each of which asserts the falsity of til(" other. which carries as a corollary the implication that propositions that cannot be verified are meaningless. to model renvoi in a way that produces paradox. SY1--1BOLIC LOGIC 440 (1932). And if PI is false. Now State A law tells us that State B law applies. Lrwls & COOPER Hc\ROLD LANGFORD. sUjlra note 11. in fact contradict each other. and so on. with their mutual cross-reference. RE\'. The two states' laws. 19 It is also possible. method of verification. Cohen.

which we could call a paradox or an incomplete definition. Hughes ed" 1982).~() it allows ready allusion to famous philosophical riddles. see aLm. it is also. CE 91-93 (G. for instance. it is at least a warning that something may be amiss in the theory. engendering paradox. In a logical system. 51l/Jra note 2. all the conclusions generated by the svstem become suspect. there is about it a whiff of Excalibur..F-REFERE.!~ . P. E. State A holds that the law to be applied to a tort is the law of the place of injury. and the only remaining candidate is P2.or is renvoi's significance merely theoretical. a serious issue in the conflict of laws. The easiest way to create a renvoi is through a difference in two states' choice-of-Iaw rules. but it is easily stated.referentialitv. It is. sexy. the derivation of a paradox is catastrophic: because any result can be logically derived from a paradox. for a succinct example of the ways in which self-referentiality can compromise the deductive soundness of a system. Voila! This "proof' of the existence of God is generally attributed to Buridan. I admit. at 192. it is a Droblem of self. while State B holds that the appropriate law is the law of the Which. for then it would assert its own falsity. ~1 20 .\ME 1. So PI must be false. But renvoi was debated with such intensity in the la. The tempting nature of the problem is a partial explanation for the academic furor that arose over renvoi in the first half of the twentieth century. reviews not simply because it is the sort of thing that strikes legal scholars as nifty. hut the paradox will he the priman' focus. the renvoi situation does arise in actual cases. is that it is a tempting problem..":.. THE CONFLICT OF LAWS 70 (1945) (characterizing renvoi as "the most famous dispute in conflicts law"). But then one of the two propositions must be true. for it seems to prevent resolution of a case. which does more to explain the literature. It is severe. Another answer. exactly the type of problem that problem-solving types like to solve."OTRE Il. I ERNST RJ\KEL. 22 Lorenzen. in short. for everyone understands the idea of an endless cycle. So what ki nd of a problem is renvoi? From a logical perspective. is not saying much. It is. PI cannot be true.. \i\Then a carefully constructed system throws up a paradox. by the standards of legal scholarship. consider the following two propositions: Pl: Both PI and P2 are false. And it appears the sort of thing that only someone very smart could fIgure out. P2: God exists.\\1' RE\'IFII' will have OCGbion to discuss both versions.~ l It was not without reason that the problem for many years "occupied the first rank in the theoretical discussions relating to the Conflict of i j Laws. If. legitimately. which possess-or seem to-more intellectual gravitas than the latest iteration of the Uniform Commercial Code.g. SeeJoH BURIDA ON SEl...

.'0 ]\tlt"l. lOS (20(H) ("L:nliKc Beale's territoriaJislll.e" or "1"01Ij1il 1I(~!!. and State B adheres to the minority approach under \... It arises whenever the rules of Private International Law of the countries in question differ. '<-. there arc overlapping assertions ofjurisdiction-what contlicts literature calls a "nm11.)N' Rhoda S.~4 Suppose.... they may again each conclude that Lorenzen.O states both follow the territorial choice-of-Iaw rule for contracts. Renvoi ({nd the A1odem. renvoi occurs if they disagree on what constitutes acceptance. Both additionally agree that a contract is formed in the place where the last act necessary to formation occurs. 37 WILL\\IFTTE 1. in Curri{"s sclwnw of things. 25 "Vhat if the rules are reversed. REV. under which a contract is formed when acceptance is placed in the mail. SUjJUl note 2.·\TE J lJSTICE J:~H (199:1) . If one state's courts see the case as presenting a tort issue. As Ernest Lorenzen. Lorenzen understates the prevalence of renvoi. so that State 13 follows the mailbox rule and State A.. even when choice-of-Iaw rules are identical. RE\". which can arise. State A follows the mailbox rule. a tort with an act in A and an injury in B will bounce back and forth between the two states. ill appl\"ing t1wir policies to a particular case. AjJjJroaches /. as a consequence of differences in internal law or characterization.lIllr' FR! EDRICII K. Comment. simiLtr results <an occur within the ILTri[orial s\·slem. according to which the validity of a contract is determined by the law of the place of its formation. notes. for example. at 19J. cloes not) Now each state's law will see a contract formed within its borders and snbject lO its law. And if acceptance was mailed in State Band received in State A.ER. They agree even that acceptance is the crucial last act. . HOlll j)o You nale {( r:."~:~ In fact. I"Ol1jlit jJosil1j" instead of a facun.0 Choice-or I. Insu:ad of the apparent mutual disclaimer oflegislativejurisdiclion in the lext. ]064 (198J) (describing characterization renvoi). 30 A\1. that t\. CIIOICE OF L-\ \\"\.J U:NC. J049.")..'l/ll/rr7.. Juenger elsewhere seems to suggest that the importation of the cumlll and lacune into Al1lt'ricall conflicts law was the responsibility of Brainerd Currie and that rhe territorial approach a\"()ided such problems. . l!.ee Friedrich K. H9.lllengn.. or for that Ill:ltler disinteresled. Courts in states that foHmv the same choice-of-Iaw rules. the two states' laws will disagree about where the contract was formed. As t1w foregoillg cklnollstrates. the disagreement \. Nonetheless. whose internal Jaw is in perfect accord... Even substantive uniformity is not enough.ll" or . perhaps renvoi's fiercest critic. 24 . sen')"a] sutes may be sinllt!uneoush' interested. 23 H . and the other state's courts as a contract action.ill take the form of renvoi: each state's law will conclude that the contract was formed in the other state and should be cgoverned bv that state's law.TIST. If. 2 'i . "[t]he problem is a general one . L. for instance.aw.RESOLVING RENVOI place of the act causing i~ury. may still reach different conclusions about the appropriate law to apply if they characterize a cause of action differently...hich acceptance is effective only \ovhen received. Barish.

NOTRE DAME L. THE CONFLICT OF L-\ws 59-94 (4th ed. each might conclude that its own law applied. . When we encounter paradox. Daniels' U-Drive Auto Renting Co. internal law. it will be with us as long as courts consult choice-of-Iaw rules to determine which law applies." as well as renvoi) . and "problems old and new. Renvoi has also been classed with "wrinkles in the theory. for example. ROBERTSON. In order to understand the significance of that conclusion. see Levy v. supra note 26. disagreement over the classification of an issue as substantive or procedural can have the same effects. there is very little need for choice of law.. H. For discussions of characterization more generally. 27 To eliminate the possibility of renvoi. less successful than that on conflicts generally. A. 1928) (recharacterizing a tort claim as contractual in nature). For a classic example of the power of characterization. 28 ld.. One of the things this Article aspires to do. CONFLICT OF LAWS: CASES AND MATERIALS 119 (5th ed.\\\' REVIle\\- the other state's law applies. it is worthwhile to pause and think about whether what we have run into is a real difficulty or one of our own creation. Its preeminent exponents differed in 26 Or. of course. 2001) (discussing categories of "substance" and "procedure. at 244. II. if possible. in short. it is necessary first to consider how renvoi looks from the perspective of the territorial and the more modern approaches to choice of law and to examine their attempts to solve the problem. ]43 A. CURRIE ET . 163. however. requires complete uniformity in choice-of-law methodology. RENVOI WITHIN SYSTEMS The Territo'rial Approach What is usually called the territorial (and sometimes the traditional or vested rights) approach to choice of law was not as monolithic as the label might suggest. COMMENTARY 0. CO 'FLICT OF LAws 43 (6th ed. obviously. 1 believe that characterization is another area where the traditional choice-of-law vocabulary has led us astray and that the problem is better understood as essentially an election of remedies situation. since courts will follow local procedure even when applying foreign substantive law. see. is to undermine this conventional understanding of the choice-of. a leading casebook calls it "large but uninformative.\L. 2fj Likewise. 27 See generally RUSSELL J. at 52. then. and characterization techniques-at which point. 2002). I will eventually suggest that renvoi is the latter. Explaining and defending this assertion will require another article. The scholarship on characterization has been. 2001)." CURRIE ET AL." DAVID P. A. CHARACTERIZATION IN THE CONFLICT OF LAWS (1940).-Iaw project. as mentioned in the previous note." LEA BRILMAYER & JACK GOLDSMITH. VVEINTRAUB.. 164-65 (Conn. Renvoi. is aptly termed one of the "pervasive problems"2H in choice of law.

. as \-vill be seen. and the evolution of conflicts thinking more generally. 1949) ("On policy grounds . RE\'. SEBOK. at 12 (1935). Alschuler. Beale's approach begins with the axiom 30 of territoriality.. and the limiL~ of merely remedial action.xiom" is the appropriate word. in which an attempt will be made to establish the time and place in which legal righL<. ix.vas his belief that law resembled logic. the principle that "the law of a state prevails throughout its boundaries and. who. 1. including their stance towards renvoi. the legal effect of acts. as we shall also see. though. 715-23 (2d ed. the general nature of law. not outside them. at v. generally speaking.ICT OF LAWS 79-81. In the introduction. the logic of his position is less than obvious. ~I I BE. Beale's failing . scientific.4. L REV. Vested Rights.common law. as conventionally understood. 86 IOWA L. a better case for limited use of renvoi can be made. ANTHONY J. sujJra note ~(). is neatly encapsulated in the ways the various prefaces of his hornbook acknowledge Beale. A DICEST OF THE LAW OF ENGLAND WITH REFERENCE TO THE CONFI. his treatise seLs out choice-oj~la\\' rules with the certitude of a logical demonstration. And Dicey. Recent scholarship has suggested that formalism. and all-embracing body of principle. A look at Beale's treatise. john ChijJIIUln Gra)' find Ihf Mo/al Basis of Classi{{J{ Ifga! Thought.E. exerted an unparalleled influence on the development of American conflicts thought. shifting from unadulterated praise in the first edition to the remark that "no pioneer's work becomes the last word in the subject and that is a good thing too" in the third. HA.\IF.. 1592 (20tJl) (noting that Beale "came as close as allyolw to understanding the common law as composed of principles that transcended the actual principles upon which any partic:ulal. no one calls a logician dogmatic for believing in his proof. and ofjurisdiction will be considered. DICEY. describing the English practice.g. Siegel. PA. Indeed."). [d."). BEi\l. 29 Myexemplar will be Joseph Beale. Given this undersLanding of la\\'.. come into existence. I irI. the accusations of dogmatism to which he was su~ject are perhaps off the mark.\PlJ I iii. 145 U. 1S 13. 30 "A."31 Beale believed it impos29 joseph Beale. LEGAL PosrnVISM IN A\1ERlCAN JURISPRUDENCE 57-112 (1998). DBOOK OF THE CONFLICT OF L<\ws 19-20 (3d ed.. was more a creation of its critics than an intellectual movement to which anyone actually subscribed. in a homogeneous.V. See 1 JOSEPH H. § 3.. See. Goodrich's move towards pragmatism. at :~()8. at 25 ("[1]n great pan [law] consisL<. oflegal rights. took a fairly strong position against renvoi as a matter of theory-though.' and Choice oj Law. see also Perry Dane. e. viewed it more pragmatically and more favorably. See A. argued that courts look to the entire Jaw of foreign jurisdictions. at least in its later editions.iurisdietion prem iscd i t.34 (1987) (noting disagreement between Beale and Dicey). Albert W.RESOLVING RENVOI significant particulars. 96 YALE LJ 1191. See HERBERT F. as the Reporter for the First Restatement and author of a three-volume treatise commenting on the Restatement. displays the extent to which he believed his basic principles to be both unquestionable and capable of generating fairly specific rules through a rational deductive process. GOODRICH.14. 1199 n. 1-2 (1996) (responding to this "myth"). Goodrich's hornbook. A TREATISE ON THE CON· FLICT OF LAWS § l. ]908).. 'Vestedness. See Stephen A. this will be followed by a detailed theoretical study of legal righL~. ~ ~9.s decisions"). Rediscovering Blackstone..2.

at 367 (suggesting that vested rights theorists disapproved of the comity-based conception on the grounds that speaking in terms of foreign Jaw operating by permission of the forum would "arouse unduly the suspicion alld vigilance of the judge against this foreign activity" and "give to the forum judge the impression that his discretion is far wider than that given to the judge in other fields of the law").1. The forum applies its own lay\' in order to vindicate rights that have vested under the law of another state. it was not applying the law of the foreign state as law at all. no law of a foreign state can have there the force of law. comes at the price of scuttling the whole choice-of-law venture. For a more detailed discussion of lkale's taxonomy of rights. awarded damages to a plaintiff for an out-of-state tort. 33 1 BEALE. . ":\:-2 From this premise flows the conclusion that only the law of the state where an event occulTecl can attach legal consequences to that event. 34 1 iri.\'\11-: I. supm note 32. supra note 13. as should be immediately apparent. But this answer." he wrote. 361. § 8A. for example. apparently believed that it offered a reason to reject renvoi. in facl.MAYER. at 53. for example.3:> Beale. it is a fact that foreign law entitles the plaintiff to recover. at 2456.\\ sible. Cheatham.·\W RI·:"IF. how is it to adjudicate cases dealing with events that occurred in other states? Beale's answer was that when a court. however. at 247-53 (2d cd. see.:"<lllln: 1> . see Roosevelt."). RE\'. see Elliott E. For a modern one. "results from the assump:'2 I iri. 35 See Cheatham. for lhe law of one state to operate as law within the borclers of another state: "It is quite obviolls that since the only law that can be applicable in a state is the law of that state..2. For a contemporaneous discussion of territoriality. Much of Beale's treatise is therefore concerned with establishing "localizing" rules to determine where. and this fact allows him to invoke the remedial law of the forum." [t] he foreign law is a fact in the transaction. for example.28. § 5. 1995). supm note 30. Territoriality might seem to offer an easy answer to the renvoi problem.. then obviously the forum cannot apply foreign choice-of-law rules."3:~ That is.4. COI\FLlCT OF L\ws ~ 5. at 53. "The vice in the decisions [accepting renvoi] . torts are committed or contracts formed. if the forum can never apply foreign law. American TlzeOllPs oj Conflict oj raws: Tlzei1' Role and Utilit)" 58 HAR\'. L. LEA BRIl. 379 (1945) ("Legal rights are created by the operation of law on acts done in the territory within iLs jurisdiction. at 86. and choice of law becomes largely a matter of determining the place of occurrence.4. § 5. 34 The advantage of this description over one that allows the possibility of foreign law operating as law is not readily apparent and may be a matter more of rhetoric than theory. and only one law can apply to an act. If foreign law can never apply within the forum state. Instead.

etion of his treatise (!<>\'oted spt'cific~l1lv to the ql Jestion of what law det crill i n l'S (he pJaCl~ ()f contracting." prcslll1labh' 1lH'. A'S En". Griswold."% Why Beale thought the fact/law distinction solved the problem is obscure at best.iUSl adjudication can 1)(' made only hy deciding as to that right as the foreign COlin \I'ottlcl have decided").2. it should not be a matter of indifference that the foreign court. suln/[ note 11. the only Conflict-of-Laws rule that can possibly be applied is the law of the forum and the foreign law is called in simply for furnishing a factual rule.in Griswold observed. IlIlml nOlc' :~(). "we shall be inextricably involved in a circle and can never decide the case.'\LE.. tile RI'S[. ~ 7. at 1187 & n. Surprisingh'.!tive. at !16. A'Sserting that foreign law is "a fact in the transaction" hardly shmvs that the latter is the correct course.70." 2 irl. al :)(). in the st.\I. <. is disllIrbinglv typical of his treatment or dirtiClllt issll<:'S: "There is.1\\'. since each party will constantly rcfllse to apply its own law and insist upon the law of the other party.RESOLVING RENVOI tion that the foreign law has legal force in a decision of the case. would conclude that no rights exist under its law.. Frederic Coudert called it "a resultant of legal casuistry and over-subtlety" as well as "a doctrine 1 !k. Indeed. As he put it. If the forum is supposed to enforce rights vested under foreign la\.-\I. Reale's further explanation.1nil1~: Illl' gl'l1er:d COl1lll1on 1.('(' nlso Note.l1CIIWIII limls olle: it n'COIlll11enc!<. the territorialist premise leads most naturally to the opposite conclusion. the territorialists' reaction to renvoi in general consisted more of derision than analysis. '~ll I BI-:. illdeed. al J().1.II:T OF L\\\''i ~ :). If different states' laws differ over where a contract was formed. The question.j6.F . § 7. is whether a court determining whether rights have vested under foreign law should consult the entirety of foreign law or merely foreign internal law. This of course is an impossible condition.3. "a . phrased in Beale's terminology. ~ ~11."37 Nor is Beale's answer to renvoi created by interstate differences over the mailbox rule any more lucid. perhaps. 3H 1 1:h:. slitI'm nOle 30. SUIJl(l note (). 36 37 . at 4:'J. al 'J'J.7 (arguing that w!len the foruill is merely enforcing a right created elsewhere. cOllsulting "the general la\\' of Conlracts.T OF C:ONFi.] J Clllt d (1 <i:~I). whereas .I-.":~·'\ Little doubt.v. no altnn. little explanation. RFSTXJT\IE". he wrote.. It is hard to avoid the conclusion that Beale was motivated in part by the fact that wholesale acceptance of renvoi seems to lead nowhere. supra note 30. "[i] t is not a little difficult to understand why the exponents of the 'vested rights' point of view in conflict of laws have also been leading opponents of the renvoi in any sense. certainly. ~ 7. ":~'l Beale was not alone. "[i] n a territorial system of law there can be little doubt that this conflict is resolved in favor of the law of the forum.'1. following its choice-of-la\-\' rules..

36 Y-\LE LJ. Schreiber."4~ It is not fanciful to hear a sense of betrayal in these words. at 570 (noting the "insidious nature of the renvoi"). there may have been a bit of xenophobia at work as well. as Lorenzen put it." "puerile. supra note 25. Renvoi is not a discrete axiom that can be excised from a logical system. f. Lorenzen. 192 (1921) ("A mere statement of the operation of the 'renvoi doctrine' should be sufficient to condemn it. at 204 (discussing "the science of the Private International Law").NOTRE DA IE I. In contrast to the system-building logicians who en40 Frederic R. Section 8. 4:> But banishing a problem requires more than a refusal to think about it. unsound and revolutionary. it is a consequence of a particular understanding of the choice-of-Iaw task. supra note 4..ermination of the case is the Conflict of Laws of the forum. Renvoi in Divorce Proceedings Based upon Constructive Service." provided that "the foreign law to be applied is the law applicable to the matter in hand and not the Conflict of Laws of the foreign state. § 3. See supra note 21 (proving the existence of God).vhat Beale and Lorenzen frequently referred to as a "science"4~) that throws up a paradox has indeed betrayed its creators and demonstrated a fundamental untrustworthiness. 31 YALE L. making it difficult to ascertain their law. 45 The First Restatement. Griswold. .aw oj a CountlY."40 and others have termed it "heretic. explaining that "the only Conflict of Laws used in the det. 953 (1927). with less explanation." Cormack. the doctrine's "days ought to be few after its deceptive character is fully understood. upon analysis. 509. The Renvoi Doctrinp. 41 SeejuEl"CER. is seen to consist of nothing but dogmatic statement of the result desired to be reached..g. sujna note 2.icil. e." and "burlesque. at 78.").'H and banishment is the only appropriate response.""1 Renvoi's unsoundness as a matter of logic was frequently asserted to be self-evident. Lorenzen. A logical system (.4. 949.-\\V REVIEW over-complicated.529 (1918). § 8. provided two exceptions to this general rule: cases involving "title to land" and "the validity of a decree of divorce" were to be decided in accordance with the law of the situs or the parties' domicile "including the Conflict of Laws rules of that state. at 249. The proportion of vituperation to explanation prompted one scholar to comment that "the present writer doubts whether [renvoi) has been surpassed by any other topic in the law in the amount of material written upon it which. the characterizations of renvoi as insidious and over subtle might be summarized by calling it too French. supra note 3. "27 YALE LJ. Coudert." Jd. In addition to the sense of betrayal. 1 BEi\LE. at 24-25 (stating that law "is not a mere collection of arbitrary rules. and the reaction is understandable.e Considerations in the Law oj Dom. sUjJTa note 30. 43 SP'f. see aLw Ernest G. sUjJra note 11. Som. and Cheshire explicitly argued that it was undesirable to attempt to follow continental conflicts law because European courts did not even adhere to stare decisis. but a body of scientific principle")." RESTATEMEl"T OF CONFLICT OF LAws § 7 (J934). 44 The untrustworthiness follows from the fact that a deductive system containing a contradiction can prove any proposition.. in the Conflict oj Laws-)\IIeaning oj "Thp." "paradoxical. 191. Lorenzen. at 1178-79. 42 Ernest G.J.

supm.4..948-49 (1995). T.John Swan. B. why foreign choice-of-Iaw rules should be treated differently from foreign internal law. 49 This point . ~ 3. ] 52-54 (1996) (describing Russell and vVhitehead's project and Russell's interaction with Frege). Conceptually..rR COOK. in such cases the forum is enforcing rights whose existence the foreign court would deny. A HISTORY OF . it GlllI10t be said that Fis entill'cing an X- ." See infra Part V. and the team of Bertrand Russell and Alfred North vVhitehead. and by Professor Beale not at aIL" David F.E( :. at 24-20. RAy MONK.yESTERN PHILOSOPHY: THE TWE TIETH CE TURY TO QlJINE AND DERRIO!\ 175-80 (3d ed. of course. su. 48 1 BEi\LE. 47 Dicey's treatise did eventually abandon iL'i reliance on the idea of vested rights. part of the error traditionally ascribed to the formalists.. pointing out that a version of the liar paradox could be generated by one of Frege's axioms. Sf'('. See.it 3NO.'i but "never adequately answered. Supposing that legal theories and thought should conform to the standards of logic or science is.. which has some palliative effect. the basic problem the territorialists encountered was that they lacked an explanation of why courts should disregard foreign choice-of-Iaw rules after having decided to apply foreign law. Russell was responsible for the collapse of Frege's attempt.RES 0 LV J N (~ REN V 0 J countered the paradoxes of set theory. BERTRAND RUSSELL: THE SPIRIT OF SOl./lIs: The Curious Position ojlhp..46 the territorialists responding to renvoi did not attempt to adjust their basic postulates. 923. But given that the territorial approach does aspire to a high degree of theoretical coherence-consider Beale's disdain for those . for the idea that the forum's task is to enforce rights acquired under foreign law is hard to square with the practice of reaching results different from those the foreign court would reach.lnG nOle 32.e. so there is some irony in faulting them for not adhering to those standards. The territorialists did not provide a good answer. The correct response. A0JD 1. note 30. J ] 70.. 56 H!\R\'.49 46 My reference to the system builders is intended primarily to include those engaged in the logicist project of deriving arithmetic from first-order logic. THE LOCICI\l. L.\1. ] 997) (discussing Russell's attempt to overcome the paradox via the Theory of Types). JONES & ROBERT. ] 171 (1943) (reviewing WALTER WI lEU . f. Federalism and the Conflict oj fJI.g.lTUDE 142-44. they simply vilified the consequence.c.J. I will suggest. but the question remains whether they could have. Book Review.ICT OF L\ws (1942)). REV. focusing their attention on symptoms rather than root causes. Cheatham. See generally 5 W. i.. in a slightly different phrasing. Gottlob Frege. 46 S.as raised against the territorialist.\SES OF 1'1 IF CONFI. . Cavers. 47 Instead. is to gin~ up on the idea thaI State A law can prescribe that State B law "applies.'ho believed law "vas "a mere collection of arbitrary rules"48-whether it can handle renvoi in a principled manner is an important test.) The problem was especially acute for Beale's vested rights theory. L RE\'.')'ulmnne Court ojCal/ada. vVhen the renvoi element is rejected and F employs the X internal law 10 dl'll'rminl" the ri~!lt'i of the parties. FOCELlN. (Or..

or could make.-lt O!lce renvoi is accepted.. These moves were available to the territorialists. however.The territorialists tended to rely on the observation th. hmvever. "[a] gibe is not a rebuttal. § 7. there is no logical stopping point. of course." 1 BEALE. at 197-98. supra note 2. three arguments to bolster the forum's authority and justify its disregard for foreign choice-of-Iaw rules and the results that would be reached by foreign courts. That suggestion. The aim is to enforce the rights that vest under foreign intercreatcd right. is for a later section. some have been invoked.:1. The Inherent Distinctiveness of Choice of Law The initial reason a territorialist might give for ignoring the foreign state's choice-of-Iaw rules is that the distinction betvveen foreign internal law and foreign choice of law inheres in the vested rights approach. since each party will constantly refuse to apply its own law and insist upon the law of the other pany. at 1187 (" [AJ reference to a foreign law means that the local court should reach the conclusion which the foreign court would reach on thc same facts. supra note 30. sU1Jra note 11. vVithin the conventional understanding of the choice-of~law venture. Beale characteristically invoked impossibility: "[vV]e shall be inextricably involved in a circle and can never decide the case. Succeeding generations of conflicts theory have made. ARCADL\ 37 (1993). 50 Lorenzen asserted that courts could not accept renvoi because "upon strict principles of logic it can lead to no solution of the problem . They remain available to modern theorists. none succeeds.").. for contumely is not argument. This of course is an impossible condition. There would appear to be no escape in legal theory from this circlc or endless chain of references. there are three basic conceptual moves to make in response to the problem of renvoi. 1. so The territorialist rejection of renvoi is consequently unconvincing. Griswold. fd. ." Lorenzcn. First. Second.. for the only legal right the party could have enforced in an X court was based on the internal law of the other state.. I intend to show that the problem of renvoi has not been resolved. 51 Or as Tom Stop pard put it. at :=16. And eventually I want to suggest that the reason the different systems have such similar responses is that the problem comes from something they have in common: the supposition that forum law can determine the scope of foreign law. the rest is mostly bluster. and again."[ Arguments exist. My purpose in assessing these resources is twofold. the same small number of moves to deal with renvoi. and some of them were used. none of which is ultimately successful." TOM STOPI'AI{D. I want to highlight the point that there are conceptual similarities in the way that different systems have tried to deal with the problem. Y. In the end.

12. for choice-of-law rules determine where and whether rights vest. supra note 30. Il([g"/lf' 1ft/HIPS. focusing on the logical aspect of the problem detaches it from the context. Y 1-1 (I Y97) (staling th.e[!.al analysis can tell us something about which solutions are plausible and which are noT. "1'11.')pe /.erl11a Hill KLlY.ernal laws. The rejection of renvoi. the territorial approach takes choice-of-Iaw rules as deeply relevant to the question of what rights the parties possess. at 278-80. t. . tantamount to a conclusion that no rights have vested under its law. That is. :-)·t A slightly more subtle way of making the argument mighl charaClerize renvoi as a coni1iet. at 46 ("By its very nature law must apply to everything and must exclusively apply to everything within the boundary of iLS jurisdiction. the assenion of inherent distinctiveness is essentially the tack taken by the most sustained attempLs to resolve the renvoi problem by application of formal logic. of choice of law and obscures the extent to which /. according to the internal logic of the vested rights approach.ermination t.hat forum choice-of-law rules should prevail if they conl1iet. in some sense. 53 See 1 BEJ\LE. would be seen as a det.11 "the siulalion poses a conflict of conflict of laws rules"). with foreign nlles. See Cowan. The Appeal to Objectivity If foreign choice-of-Iaw rules cannot be simply ignored as irrelevan t to the forum's analysis. they have nothing to do with substantive rights.her. requiring resolution in the same wav as a conflict between int.") . incorrect. a territorialist might say. 2. the next plausible tack is to assert that the foreign state's choice-of-law rules can be rejected because they are. rat. but it is in fact unfaithful to the methodology it invokes.hen. As t. 891. at 44-45 (invoking Russell and vVhitehead's Theory of Types as justification for ignoring foreign choice-of-Iaw rules). bet.) The jurisdiction thus identified is the only one whose laws attach legal consequences to the transaction. Hicks.1 of 0 (.. 52 This move has some superficial appeal. 284-89 (same). § 4. Choice-of-Iaw rules.')4 I call this move the appeal to objectivity be52 Interestingly.oot": R"j1. It is no answer then to say that territorialism is concerned with vested rights and not choice-of-Iaw rules.RESOLVING RENVOI nal law. and therefore it is internal law that should be consulted.·nlrai!.m IJrilill(lw'r~. sUfJra note 5. are directed to courts and not parties. 4~ MLR<:ER 1.eclio'l/s Oil !?Nulillg l. RE\'.!l'llls I identify. This approach docs nol avoid t1w plol. which suggests that tacking on a philosophical pedigree adds little.he text demonstrates.(> 1.ween choice-of-Iaw rules."d The foreign state's conclusion that its la\v does not apply then is. not because Ihe foreign nlles are objeclively wrong but simply becallse a choice IllUSt be mack . the same move can be made without invoking Russell and '<\Thitehead. For a territorialist. the choice-of-Iaw calculus identifies the jurisdiction with authority to regulate a particular transaction. SUI)1([ note] 6. il highlighls thf'llL because it asserts so clearly Ihal . (It is for that reason that territorialism is called a jurisdiction-selecting approach.. Moreover.

at 27. at 9ii4-ii9. 58 1 it!. turns on the law/fact distinction. every common law jurisdiction whose courts struggled to discern it. then. It was common to. and the territorialists had available a very effective argument for the appeal to objectivity. as discussed earlier. Beale's analysis of renvoi. See infra Part V. 59 1 id. 57 1 id. but on the status of conflicts as pan of the general common law.12. 55 The stronger argument relies not on that distinction. Larry Kramer. supm note 3. .""'7 Last. that there is some o~jective standard (usually resembling forum lav\r) against which foreign choice-of-Iaw rules can be measured. at 10. "Theoreticallaw. without special reference to the actual law in any particular state. and the decisions of courts of all such states are important evidences of the law."59 For Beale. existed independent of any particular state or lawmaking authority. And thus a forum court could-indeed." for instance."56 By contrast. That principle. It is not clear to me whether they actually made the argument. but it had no single source. in defiance of the contemporary methodological pluralism. "[p] ositive law" is "the law as actually administered in a particular country. who does present it..NOTRE DA1\IE 1. attributes it to Beale. "are authoritative in each state whose law is based upon it. the general common law."58 The doctrines of the common law. Beale writes.-\\\" REVIEW cause it asserts. in some ways intermediate between the positive and the theoretical law is what Beale refers to as the "general common law. which included conflict of laws. § 1. and authoritative in. § 1.1. 55 See Kramer. and hence no single authoritative interpreter.12. he defines as "the body of principles worked out by the light of reason and by general usage. but this is perhaps overgenerous. however. the move defies more than the state of modern conflicts law. This assertion is what I identify as the fundamental source of the renvoi problem. 56 1 BEALE. for it runs against one of the most basic principles of contemporary jurisprudence: the principle that state courts are authoritative in the exposition of their own law. § 4. might well be required to by the binding precedents of the forum's higher courts-conclude that foreign courts had erred in their articulation or application of choice-of-Iaw whether foreign law applies is a question to he answered by reference to forum law. is of relatively recent vintage. at 9." an unwritten body of law "which is accepted by all so-called common-law jurisdictions but is the particular and peculiar law of none. Beale's treatise recognizes several different kinds of law. sujJm note 30. In fact.

sa/no nule :'lO. the "uniformity" produced by the appeal to objectivity is illusory in practice because the foreign courts will almost certainly continue to apply their own interpretations of the general common law and disregard those of the forum. what is important is to see that the argument is ultimately unavailing. Making choice of law part of the general common law essentially imposes uniformity on the forum and foreign courts.'. The decisions of state courts applying common law produced the positive law of the state. This move goes some way towards eliminating the problem of the renvoi. S 3. however. 62 I BEAl. while simultaneously granting them interpretive independence with regard to the content of the uniform law. and lower state courts were bound by the decisions of higher state courts as to the content of that law. is it necessary to decide whether they did. Beale rejected the proposition that courts make lav. S 4. we could say. . both explicitly and at length. because renvoi can arise even with uniform choice-of-Iaw rules. not to make it. and it sug60 The problem is not eliminated entirely. It is not clear to me. But they were bound by virtue of their inferior status. Indeed. 60 This approach. We could imagine a situation in which the couns of several states announced that they would follow a Restatement while differing over what the relevant Restatement section meant. authoritative law without an author. 61 Beale did not dispute that state courts are the authoritative expositors of their own law. In applying Massachusetts law. 61 The lwst modern analog is probably something like the Restatements. at 24 ("Cuurts are sworn to enforce the law. relies on Beale's understanding of the general common law as controlling in common law jurisdictions but lacking a single supreme interpreter. An initial problem with this resolution of the renvoi problem is that it is somewhat too powerful. and not to the extent it might seem at first blush. under the analog to Beale's approach. Neither.6. 62 It was for this reason that court. a ew York coun would nowadays follow the Massachusetts decisions construing the Restatement."). Choice-of-law rules are part of the general common law. I irl. Beale's theory of the general common law did not distinguish between choice of law and internal law. It .. that the territorialists ever made the argument for objectivity based on the general common law. it would instead follow those of ew York. not subject to the state hierarchy. not because state supreme courts had any power to make the common law of the state.E. at 39 (stating that the possibility of "a difference of opinion between the stale court and the federal court sitting in lhe state as to the law of the state .> of other jurisdictions.·vas..RESOLVING RENVOI rules. is quite incompatible with the coun making the law"). were entitled to interpretive independence. In addition. he relied on the point that the general common law is no state's own law. of course. I have said. but so too is the large portion of tort and contract law that has not been codified. See :-ill/nil Part l.4.

63 . § 3. To reduce Erie to the proposition that the general law does not exist is. Clark. to engage in caricature. L. in short.. Borchers. The elimination of choice of law is not a fatal defect. 95 U.J.2. Ne)f. 64 41 U. REV lEW IVOL.S. 65 304 U. WILLIAM M. PA. That is.l. v. if the tort law of the forum differs from that of the foreign state.64 which the positivists. at 276 (citing Pennoyer) . 66 For a sampling of the literature. The regime under which a forum will apply its own understanding of general law rather than the understanding of the geographically appropriate state court is familiar to students of legal history. BRANDEIS AND THE PROGRESSIVE CONSTITUTION: ERiE. TIlE JUDICIAL POWER. supra note 30. THE LOST WORLD OF CLASSICAL Lr:CAL THOUGHT: LAW AND IDEOLOGY IN AMERICA. at 22 & n. for example. 714 (1877). see EDWARD A. v. and a Bmve New World for Erie and Klaxon. tends to obliterate the whole idea of choice of law. 1 BEALE.S. Tompkins. Beale relied on Swift at a number of points. since that represents the forum's best understanding of the general common law that prevails in the foreign state and the forum alike.J. It is the regime of Swift v. 79 (1993). supra note 30.f)l. § 3. The appeal to general law. What Erie stands for is a complicated and contested question. HORWITZ. Some of its language might Not.jR. See generally MORTON . 310 (1945).5. ()c. at 26. the Rise of Legal Positivism. 326 U. WIECEK. a worldview soon to be swept aside. And that is the second and more devastating objection to the appeal to general law: we have it on good authority that there is no such thing.) 1 (1842). at 39 & n. 1459 (1997). 1886-1937 (1998) (same). Tyson.S. but rather that from the modern perspective it accom. 17re Origins of Diversity Jurisdiction.S. Washington. § 42. this Article will end with a prescription that could be construed as calling for much the same thingY' The more serious problem with the appeal to general law is not that it accomplishes too much. I)(l::) gested that the forum court should follow its O\yn interpretation of" substantive general law as well. In addition to Swift. and. looking at the cases on which Beale constructed his system. 64 (1938). by imposing the uniformity of a general law upon every state.l.. he favored Pnmoyerv. it may not be a defect at all. 72 TEX. one might think he had a rare knack for picking losers.L. § 4.3. the forum should apply its own law. REV. attacked. Oliver Wendell HolInes notably among them. 145 U. of course. see 1 BEALE. and which the Supreme Court rejected in Erie Railroad Co. THE TRA1'\JSFORMATION OF AMERICAN LAw. Ascertaining the Ioaws of the Seveml States: Positivism and Judicial Federalism After Erie. A more accurate statement would be that Beale had the misfortune that his great work was one of the last flowerings of legal classicism. REv. Patrick. See infra Part V.N () [R I' n A !'vi E 1. 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 9-31 (1992) (describing classical legal thought). AND THE POLITICS OF THE FEDERA.plishes nothing at all.6. PURCH.'\ \\.L COURTS IN T"VENTIETH-CENTURY AMERICA (2000). I hasten to add. (16 Pet. which hung on until 1945 when the Supreme Court decided Intemational Shoe Co. L. Bradford R. Indeed.

Henry J. 1. To the extent that Erie relies on the idea that making general common law is beyond the power of the federal government entirely. 805 (1989). 84 v.". RE\·.-\CE 1. Erie did not establish this proposition but simply increased the significance of what was already accepted by expanding the range 01 is· sues goverrH'd by Slate (rather than general) law.A. :104 U. 'The common law so far as it is enforced in a State. L. id.70 (J992). 68 If that is so.. 83 Nw. RJ::v. 69 . PaulJ. 673 (199R).. Undflslanding Changed Rf'odings: Fir/elil)' and Thpory. 426-3R (1995). RE\'. H7 H. 6R Sep...I/I/)(/el UrI/lSI'. [T]he authority and only authority is the State.Jack Goldsmith & Steven Walt.S. Mishkin. vVonman. v. Friendly. Erie establishes that state courts' authority \. 12 P.. 276 l] . and a fortiori beyond the power of federal courts. Rn'. L. 263.. Eric and lhe Irrpli'7l(/1m' aJ Legal Posilivism.J. at 78 ("Congress has no power to declare substantive rules of common law applicable in a State."). do states have the power to make law for other states. see Banon H. the Full Faith and Credit Clause would presumably bar state courts from refusing to follow the high courts of other states when applying those states' law. at the least. 1. That is a misconceplion. REV. 2R3 (1992). '). -+451\. . dissenting))..1. Thus.mu. l~rip is often cited for the proposition that state COl\rL~ are authoriwtive with respecl to their own law. S017lP!''''urlherLasl Words on Erie-The Ihrfad.. 1373. 67 See Erip.--. 3R3 (1964). it might seem not to apply to state courts at all..llm)' oj the jwlirial lmjHlinllp. my chief focus.S. Brown & Yellow Taxicab & Transfer Co. (quoting Black & \"Ihite Taxicab & Transfer Co. and if thal be so. 138R & n. RH. 67 But it also seems to hold (though the constitutional source for this proposition is unclear) that state high court decisions are of equal dignity with state statutes. 717.RESOLVING RENVOI suggest that its relevance for state courts. is marginal at best. 1. is not the common law generally but the law of that State existing by the authority of that State.S. v... John Hart EI~'. For a discussion of the early trealment I)\' the Supreme Lourt of stale court interpretations of stale law. 39 NYU. REV.. 47 STAN. U. whether called common law or not. 1682 (1974). RF\'.. of course. has been brough t to lhe COlll-t's attention" violates full rai th and credit).')'ee Sun Oil Co.. Jr. Til£' Lrwlllwki'llg Power aJlhe Federal C011115..(-)l} Nor. 1. 731 (J98R) (stating that construction that "contradict[s] law of the olher State thal is clearly established and lhat. "f'he JnejJressibli' AI)'lh of Eric. Louise Weinberg. 5 J 8. Lawrence Lessig. And no clause in the Constitution purports to confer such a power upon the federal courts.' Jr!.):1-35 (l 928) (Holmes. Federal Common Low. in Praise 0JEriC:'and aJ lhp New F"Pdeml Common J.vith respect to the interpretation of their own law cannot be circumvented by the suggestion that conflicts is in some sense not state law. 395.\Rv. R7 HAR\'. Thompson. at 79. 693 (1974). F!lt' Hi.. 4R6 U. the voice adopted by the State as its own (whether it be of its Legislalure or of iL~ Supreme Coun) should utter the lasl word.lIl "/)o(/"I"ill(''' rllld lis l-essolls for lh(' (. Larry Kramer.

were doing something other than enforcing vested rights. but upon the lex fori. courts were applying "the rule of decision which the given foreign state or country would apply. see aLw. for the only legal right the party could have enforced in an X court was based on the internal law of the other state. Cook argued that the widespread failure to do so implied that courts.1 70 CourL. Lorenzen. and is not in any sense enforcing [foreign] law. applying Beale's approach. Although the local law theory is generally associated with Cook.g. "[ t] he forum thus enforces not a foreign right but a right created by its own law. to study the decision of [foreign] courts . supra note 70. This move occupies a prominent place in the literature. One more means exists to bring the matter back within the authority of the forum: to assert that the law being applied is. 71 As Cheatham put it. but to a similar but purely domestic group of facts involving for the foreign cour-l no foreign element. supra note 4. The Local Law Theory So foreign choice-of-len'v rules cannot be ignored. al 21.. Cook argued. it is what is known as the "local law theory. 73 Jei. lei.vas presented most completely by a critic of the territorialists. .. 70 But rather than adhering to the vested rights theory and urging acceptance of renvoi. Cook argued. not to this very group of facts now before the court of the forum."). 7l In fact. 31-34 (1989) (describing Cook's argument). THE LOClCAL AND LECAL BASES OF THE CO FUel' OF L~\vs 19 (1942)."7." WALTER WHEELER COOK. Schreiber." It . Y Cheatham. properly speaking. Beale of course maintained a similar position as a matter of metaphysics. and they can. and it begins with a point already noted: that a true adherent of the vested rights approach would consult foreign choice-of-law rules in order to determine whether rights had vested under foreign law. citing Cook: When the renvoi element is rejected and F employs the X internal law to determine the rights of the parties."7'2 In consequence.. not be overridden on the grounds that they are part of a general law that the foreign courts have misunderstood. upon the conflict of laws. Cook concluded. whatever they said. the law the forum applied as law must be local law. at 206. at 531 ("The truth is that the [forum] court is enforcing its own law throughout. Under his approach. "the foreign law cannot and does not operate . See. 72 COOK.. at 3RO. which must be deemed to have adopted the foreign internal or territorial law for the purpose. . in some sense. it was prominent in the literature before his lVork. because he believed that foreign law could be given effect only as a fact. it cannot be said that Fis enforcing an Xcreated right. It follows that whenever the question as to the creation of rights under the law of a foreign country arises before the tribunals of another State the existence or nonexistence of such rights depends. 215 REC:UEIL DES COURS 19. supra note 32. "are logically compelled . sU/JUt note 2. Herma Hill Kay.. A Defense oj Currie's Covanmentallnterest Analysis. e. Walter Wheeler Cook. not upon the will of the foreign law-giver. "really" forum law.I OTR!:". DAME LAW R£VIF\V 3. e.g.

REv. Baseball and Chidu:'17 Salad: A. L. indeed. 44 VANLl. 75 David F. at the age of four. an inconsistency that Beale's fact/law distinction does not resolve. Theories that explain how it is that a foreign mle isn't foreign la. . the local law theory does have the ability to resolve the renvoi problem. L. The Historic Bases of Private Internationall_aw.20°5] RESOLVING RENVOI Is this a distinction without a difference? Some have concluded that the local law theory amounts to little more than hand waving."76 In a less ambitious form. 74 Hessel E. 827. supra note 32.3 (discllssing assimilation) . Cox. 2 AM. 1." Cheatham. he encountered tuna fish salad. does nothing. that a forum will sometimes apply a "rule of assimilation" and shape its law to mirror the substance of foreign internal law is an important insight. Hessel Yntema called it "empty luggage. he restored his world to order and concluded the matter by remarking to himself.."). "Fish made of chicken. then in this sense forum law is always applied. To see these points. "Isn't that chicken?" he inquired after the first bite. supra note 25. at 365-66. L. one does not have to look far to find those who maintain that" [i] n reality. a state can only create and apply its own law.. Unfortunately. the theory is hard to deny. 28 VAL. at 101 (stating that "[i]t may well be doubted whether anything is gained" by the local law theory). L. however.) (1950) . R43 (l99]) (reviewing LEA BRILMAYER. 77 . by itself.g. FOUNDATIONS -\ND FUTURE DIRE<TIONS (199])) ("If the decision is the law in the case. Maier. sl1jJ1'(f note 29. Cavers. Juenger.B. The two possible in the forum but . U.See Dane. CONFLICT OF LAWS. it was fish. Yntema. see alsu. The Twu "Local Law" Theories. 77 And. even though the forum coun may look to rorei~n rules or principles to tind guides for jL~ decision. Told that no. REV. The question remains whether local law is to be shaped to resemble the entirety of foreign law or foreign internal law alone. "75 The theory continues to have its adherents.. Cook was concerned with pointing out the inconsistency between Beale's theory and the territorialist practice of H. e. COi\'ll'. H2. most relevant for the purposes of this Article. 76 Stanley E.. the first step is the realization that the assertion that the forum is enforcing local law. 3]6 (1953).. the solution comes at a price that no choice-of-law theory can accept. a foreign-created right or obligation is enforced. Razing Conflicts Facades to Build Bflter JurisdictioJl 1'hfOl)': TIle Fuundation-Thae Is No Law but Forum Law.. Realistic Luol! at Choice uI I_ow. see ge17f'mllJl infra Part 1I1.jecting the renvoi and thus enforcing "righL~" whose existence the foreign court would deny. 63 HARV. Rr·y R22. 297. J. Sfi' a/IO I-{arold G. 3 (1993). at ] 200."74 and David Cavers offered an anecdotal analogy that is no less devastating for its humor. when it is used in deciding a case in another country might seem more useful if I could forget the way in which my son resolved a like problem when.

law. it must be understood as directing local law to mimic only foreign internal law and thus not concerning itself with whether a foreign court would agree that the rights being enforced exist. with no explanation of why forum law should mimic foreign internal law but not foreign choice-of-law rules. It solves the problem.He offered the local law theory more as a description of what 78 7<J SO Sf(' ewers. is renvoi."Ko The difference between the two theories assumes significance when the foreign state's entire law does not create a right-that is.. for mimicking the entirety of foreign law will lead the forum to apply the foreign state's choice-of-law rules.:2 For the local law theory to deal with renvoi then. 82 Sef' s/lpra note 19 and accompanying text (discussing renvoi as an incomplete definition) . that a right be found to have been created in whatever state is seleCled by the forum's choice-or-law rule. The first problem is that Cook's version of the local law theory seems to be very little more than an alternate description of rejecting renvoi. and while it does indeed allow a court to overcome renvoi. That is.."7K The first. HI Thus a State A court may well find itself in a situation in which State A law provides that the plaintiff shall have whatever rights she would have under State B law."requires . fd R1 Beale's vested rights approach is basically similar to the Hand formulation.\i\IF 1. and State B law gives her whatever rights she would have under State A. Cook would likely not have been troubled by this. and thus "it is a matter of no concern whether the foreign state has created a right in the plaintiff under its law. but it does so by fiat.N()TRE Il. at 824. and it is for hasically the same reason that his admonition to reject renvoi is suspect. Hand's version of the local law theory does not solve the renvoi problem.U1SWlTS to this question give rise to what Cavers famously callce! "the two 'locd law' theories. See sujml notes 29-3<J and accompanying text."7~) That is. it comes with its own set of problems. \\\· RI·:VIE\\· .. when its choice-of-Iaw rules do not select its own law. even if as a matter of "forum" law. sujna nOle 75. This is Cook's version of the theory.. Under the second. which ewers attributed to Cook. fd. of course. This circumstance. local law mimics only the foreign state's internal law. . which ewers associated with Judge Learned Halld.'. Hand's version of the local law theory simply restates the problem of renvoi from the perspective that sees it as an incomplete definition. under the first local law theory. . local law mimics the entirety of foreign law.

the due process problem is at most a technicality. but the local law theory insists that it nonetheless apply its own law. but it has repeatedly affirmed that such limits exist. the same sort of hand waving as critics deemed the local law theory itself-but V-iorse. sujJr(J nOlC 32. And so. The current Supreme Court has adopted quite a lenient reading of the constitutional strictures on choice-of-law rules.S. The state whose internal law is mimicked will almost certainly have sufficient contacts with the case for the application of its law to be constitutionally acceptable.\1'1' ill. there is certainly no injury from the application of forum law modeled on foreign law. Since the forum coun could constitutionally apply the foreign law in its own right. 472 t'. Cook would have bcen the fi rs! to insisl. is useful only in aiding us to see and express the real problem. 84 For a critical evaluation of the Court's constitutional cboice-uf~la\\' jurisprudence. al 2503-18. at 81 h (noting lhal "(here can be no injun. one might think. see Roosevelt. lhal ma\ be applied).RESOLVING RENVOI courts were doing than as an explanation. 7Cd7. at any rate. Rh But the objection is somewhat more serious than that because Cook's version of the local law theory-unlike Hand's-does more than simply slap the label "local law" on foreign law. the defect will lie in the choice-oflaw rule that selected that state's law. 8h . After all. It changes the contours of foreign law in a very real sense-it identifies and enforces As Cheatham put it: The wisdom of substituting f{)r the territoriality of the place of occurrence a conceptually neccssary territoriality of the state of the forum cannot find adequate suppon in any supposedly necessary notiun about the nature of law. there is a more substantial reason that the local law theory is unsatisfactory: it raises serious constitutional difficulties. But an approach so lacking in normative or explanatory force is unlikely to win many adherents. 84 In particular. at 388. 83 . it is the internal law of some other state. If it does not. 818-19 (1985) (discussing dlW pro(('ss and full failh .\pplied by lhe forllm dOl"!" no! conflict with all\' other L\\\. as 1v1 r.md credit restrictions). v. because the hand waving here is employed not to solve a problem but to create one. 85 SPI! Phillips Petro!cum Co.8~ In fact. This objection might seem sophistic. sUjJra nOle 13. not the local law theory." it the la\\' . Shults. the Due Process Clause prohibits states from applying their own law unless they have certain minimum contacts with the litigated transaction. in apparent defiance of due process requirements.H"l There are certainly circumstances in which the forum will lack the required contacts. Any analytical system. the "local la\"" that is applied is not in substance forum internal law. and his purpose was to show that the vested rights theory did not fit the practice. Cheatham.

in substance. and the local law theory is idling. Obviously. that was why he saw the local law theory as a critique of Beale's vested rights account." Griswold. this is a little question-begging. . foreign law. not merely to the X substantive law.'\ i\I E LAW REV I E \V rights that do not exist under the foreign law. at 825 (arguing that determining whether a right had been created under X law "would require a reference. From this perspective. "a reference to a foreign law means that the local court should reach the conclusion which the foreign court would reach on the same facts. See infra notes 140-48 and accompanying text."). 88 Again. In that case. however. paradigmatically the imposition of liability that they had no reason to expect. note that it is commonplace in our system that state courts are authoritative in the exposition of their own law. supra note 11. at that-if Hawaii uses the local law theory to supplement a territorialist approach and mimics New York law. It will be a formal sense alone-and a mindless formalism. For now. Suppose. but it is not. H7 'What it applies may be local law only in name.. See COOK.N () T ({ E [). New York choice-of-law rules direct the application of New York law. There can be no due process objection to the application of New York law. See Cavers. Only if they . but to the X choice-of~law rules. at 1187. no renvoi problem exists either. HH The practical purpose of due process restrictions on choice of law is to protect litigants from unfair surprise. See injia Part IV. At this point I will rest with the observation that Cavers thought so. supra note 70. at least in a formal sense. and again.AA. for instance. Cook agreed. rather than mimicking New York internal law. at 32 (arguing that a forum can claim to be enforcing a foreign right only if it has "acted precisely as the [foreign) officials would have acted had the precise ca5e been presented to them"). if the defendant is somehow sued in Hawaii. As Griswold put it. that New York and Pennsylvania both folIowa territorialist approach. supra note 75. It will do so in every case in which the renvoi issue existswhich are the only cases in which it actually does any work. but the argument will have to be deferred. it is at least superficially plausible to take that as the end of the matter. and a Pennsylvania defendant il~jures a Pennsylvania plaintiff in New York. I will have to postpone a fuller discussion of the issue. that law clearly asserts an intent to regulate the defendant's conduct and he cannot claim unfair surprise in being subjected to the law that would be applied by the courts of the state where he acted. [pointed] to the X law as applicable to this very case could one say that a right had been created by Xlaw. The theory does do some work if we 87 This assertion might seem to beg the question-is it so clear that no rights exist under a state's law if its choice-of-Iaw rules point elsewhere? I will argue that the answer is generally yes. it imposes liability that does not exist under the law of the state selected by forum choice-of-law rules.. and thus if the State X high court would assert that the plaintiff has no rights under State X law. the application of Hawaii law will raise due process issues. so a Hawaii court could achieve the same result by applying ew York law qua New York law. the local law theory is troubling.

is to say that it is indeed surprising to be subjected to a law that does not reach your conduct. at 137-43 (discussing due process analysis). sUjJra note 32. the due process objection has more force. Another. the Supreme Court of Alabama said that the statute must be applied "as if its operation had been expreSSly limited to this state. 472 U. at 818-19 (noting due process restrictions on the application of forum law). To restrict the discllssian to the territorial approach. In this hypothetical case. 89 Saying that the law applied is Hawaii law shaped to resemble Pennsylvania internal law explains why the Hawaii court can ignore Pennsylvania territorialist choice-of-Iaw rules. 90 PhillilJS PetrolR. which I prefer. is territorial in scope and attaches no legal consequences to the defendant's conduct.RESOLVING RENVOI imagine that Hawaii choice-of-Iaw rules instead lead a Hawaii court to suppose that Pennsylvania law is appropriate. G. and as if its jirsllinc read as follows: 'V. Construing a personal injury statute and applying a territorial vested rights approach.S. it makes no sense at all. But new problems are created: now the defendant has effectively been subjected to a law that. David Franklin has suggested.2. IWJ2)..2. Cu. ~ :1. v. is Ihat the supposed dichotomy between internal law and choice-or-Jaw rules is false: it is . 1 I So. Carroll. because the test is designed to determine whether Pennsylvania may exercise legislative jurisdiction. according to its authoritative expositors.' etc. And it makes sense as a test for when a Hawaii court can apply Pennsylvania law if a Pennsylvania court would have applied Pennsylvania law. Co. is to say that in such a case Hawaii is not applying Pennsylvania law in any meaningful sense. 9 ! One . and on the supposed facts. as interpreted by Pennsylvania courts. so here we see the local law theory working to explain rejection of renvoi. Pennsylvania law.S.·vay of phrasing the practical due process objection. It makes sense as a test for when a Pennsylvania court should be permitted to apply Pennsylvania law. 91 Tenitorialist courts were quite clear that their choice-oi~law rule amounted to a restriCl ion on the scope of state law. 92 The defendant's claim of unfair surprise at the imposition of 89 The most plausible way in which this might occur would be if Hawaii were an interest analysis state and both parties were from Pennsylvania. lJ2 A more general way of putting this point. Pennsylvania has not attempted to do so. we might suppose alternatively that Hawaii law for some reason tinds the last act occurring in Pennsylvania. the Pennsylvania courts. 803. see generally BRIUvIAYER." Ala. The conventional due process analysis would look to the connections between Pennsylvania and the litigated transaction and conclude that the parties' domicile creates a sufficient connection to make it legitimate for Pennsylvania to exercise legislative jurisdictionYo This makes sense as far as it goes.R.'hen a personal injury is received in Alabama bv a snvant or employe. But in the imagined case.807 (Ala. does not reach his conduct.11111. then.

This makes the theory a less than satisfactory theoretical resolUlioll of the renvoi problem. then. but that problem too is avoided by the local law theory. 94 See. The local law theory might work somewhat better as a description. for the Hawaii court has created . A \-1' ]{ F\-' I [. must we. if thev choose. S'ee it!. shaped to resemble Pennsylvania internal law. and he does not appear to have considered the due process implications of his approach.e infra text accompanying note 138. His general aim was to provide "a reasonably accurate. l. at 3:i. exercise legislative jurisdiction. I will suggest just that: much of what judges do in response to the . but the behavior it describes is unconstitutional. and workable description of judicial phenomena.In obligation that simply docs not exist under Pennsylvania law and would not be recognized hy Pennsylvania courtsY:. :i06." () I R ['. say that there are as many 'rights." Elliott Cheatham wrote. and to apply State A imernal law alone is not to apply State i\ law. v."9S Cook himself agreed.. however. is mere fortuity-New York happens to have sufficient contacts with the transaction. Sp."96 impossible to separate the two. i. though it may well be the case that the unconstitutionality is more than an artifact of the theorY. 93 What. supra note 32. and he rightly concluded that the vested rights approach fit judicial practice poorly.' all gro'wing out of the one group of facts under consideration.~H From this perspective. Cook understood assertions about the law to be no more than predictions of official behavior. "the law of every state applies to every occurrence in the world and creates at the time of each occurrence rights and obligations which may later be enforced in the state creating them. there would be a full faith and credit problem. see irl. 398 U. J.elf in the position of Hawaii. at 33. dissenting) ("There must be at least some minimal contact between a State and the \'egulated subject before it can. Hellenic Lines Ltd. "Under it. at 30. The reason that the due process objection fails. the due process issue is the pennissihle scope of state legislative jurisdictiOll. P. slllna note 70.e. If New York purported truly to be applying Pennsylvania law. The Supreme Court has come close to recognizing this point. ell' York would find iL<. at 386-87. consistently with the requirements of due process. See infra text accompanying notes 140-48. at 33-34.2 (1970) (Harlan. if we suppose that the case is litigated in ew York and New York choice-of~law rules point to Pennsylvania law? The due process objection to the local law theon: that I have identified finds no traction no\\'. 96 COOK. the local law theory appears even worse." irl. 95 Cheatham. This consequence of the local lavv theory has not gone unremarked. I will argue. [n fact. but those contacts are not the reason it is applying its "local" law. I).S. "Shall we. In some other case. applying its own law despite the lack of any contacts. From a more theoretical perspective. asserting a legislative jurisdiction that is entirely unbounded-a state's law governs every transaction litigated in its courts.\-" I I:. as there are jurisdictions which will give the plaintiff relieD" he asked.g. Rhoditis.. ["or New York's contacts with the case (unlike Hawaii's) are sufficient to allow it to assert legislative jurisdiction[ell' York courts can apply New York law. :i14 n.")..: \-1 liabilitv under Hawaii law goes beyond formalism. and answered that "there seems to be no other statement to make. understandable.

([ud jlldgmelll. See infra text accompanying notes 140-48. as the name suggests. :)( 'I\'lLL\I\IETTE L.}]olilcl he . see also Roosevelt. al IOOS-OS. A court assessing those purposes might conclude that they vwuld be better served if the law reached some events outside the state's borders or perhaps if it did not reach some within. If anything. out-of~slaters should be entitled to invoke local tort or contract law. The problem wit.s on choice-uf~law rules). Whitten. if application of" its la\\I would promote the purposes behind the law. ThaI is. the purpose or a speed limiL. RE\'.Ul-o" (for cX. the modern approaches are hardly more successful. sUjJm note '{. on Currie's account. such as whether and in what cirCUlllSlcll1(TS. it worsens the difficulty.)pp Kramer.. 268 & n. but its introduction of the idea of mimicking describes judicial practice from a perspective that reveals serious constitutional difficulties.97 Brainerd Currie reacted by creating a \vhole new approach to choice of law.RESOL\'ING RENVOI The local law theory.!w·isl!icliou. focuses attention on the interests of the jurisdictions whose laws are potentially applicable. does not solve the problem of renvoi within the territorial approach.\. \yhilc Ihe purpose of a sL1tute relating tIl "pc'(!c-stri. . Governmental interest analysis. slIpm note J~. How one should go abmlt determining whether application oj a law \\'()ultI promote its pUl-pose is not clear. e. It can cenainly be done in some caseS-ll1ost ('\'l'n'one would agree that. Curing the J)rfzrie17ries ojlltp COl/jlirfs HI'7l0!1Ilion: A ProposalIor Nalional JJPgislaliol/ on Clwire of Law. for instance. 259. As we shall sec.~s 10 \dll'tl1l'r in-lin(' Sk~ltcTs . however. . qX The forum renvoi problem. 98 Spe BRAINERD CURRIE. "ID]ctermining wlwlher ~I I~I\\' applies in a mulListate case requires interpreting it in a way that is not q!l~diL!ti\'ch­ C\irT(>rc'nt from other legal problems" Jr!.l\' well ojfer SOIl1C gllicLll1\l' . The defenders 01 interest analysis Lend to argue (hat Lhe process in such cases is essentially identical 10 the ordinary \\'ork of statuLory interpretation and thus that interest <lnaksis sl~ll1ds u!] the same footing as the general project of determining whether statlltes apply III marginal cases.h Ihis claim is tILl! the tooJ. and in conflicts generally.'. at 1008. a\'aiJahlc" 10 guick sllch inll'rpITLIlion tllrn oul to 1)(' almost exclusi\'ch' assumptions unrelated to thc p. Not only does it offer no good reason for mimicking foreign internal law rather than the entirety of foreign law.27 (200]) (discussing escape devices). SELECTFD ESSAYS ON THE CONFLICT UF L\\ys ] 8~-84 (1963).g" Ralph C. is best understood as violating the Cunstitution. Interest Analysis One of the greatest defects of the territorial approach is that the axiom of territorial scope may fit poorly with the purposes behind a state law. at 2527-~3 (arguing for stronger constitutional constraint. Some reacted to this frustration by using the so-called "escape devices" to reach results that seemed more sensible in terms of hypothesi7.ed legislative purpose. then. A state is interested.uliClllar !a\\' heing illlerpreted. 97 See generally.lll1ple) !l1. B. is scned by ilS applicaLion to cases arising on the subject road and nOI oLhers-but the typical conflicts case prcsenLs more difficult questions.

at 184. 620 (1983) (claiming that "the process of determining policies and interests is exactly the same" in "domestic interpretation and conflicts in terpretation"). Intel~ est Analysis and forum PreJerence in the Conflict oj Laws: A Response to the 'New Critics. LJ 459." See I BEALE. eliminates the problem of renvoi entirely. 99 CURRIE. REV. see Lea Brilmayer. The only question. which are not relevant for my purposes.-\W REVIE\V [VUL. Sedler. Kay. CURRIE. then. For general discussions of the plausibility of characterizing interest analysis as staWLOry construction. sujna note 98. in short."lOI Interest analysis. then so does Beale's "by its very nature. § 4. P. 87 U.010TRE DAME I . the interest analyst must rely on background assumptions. L. supra note 16. Currie suggested. '34 MERCER L. not necessarily to TPsolve it.12. On that question. at 46. Griswold was responding to Cowan. Massachusetts married women. PA. the resolution of generalized forms of contradiction being the busi- . sujna note 71. . riO::> should apply another state's law. Griswold." [find fault with this term to the extent that it suggests a qualitative difference between Currie and Beale. [n consequence.g. 102 Erwin N. [omit here a discussion of Currie's suggestions for other kinds of cases. 46 OHIO ST. only if the other state is interested and the forum is notY9 A."). supra note 98. Governmental Interest Analysis] ("Currie's illustrative examples do not amount to the ordinary process of statutory interpretation. 78 MICH. supra note 5. Anticipating (though reaching a different conclusion than) Hicks."). for example. supra. 593. those with whose welfare Massachusetts is concerned. L. see. who argued that a forum should apply foreign choice-of-Iaw rules but should interpret a foreign selection of the forum's law as a selection of forum internal law alone. Robert A. supra note 30." 102 The problem included.." lOU Because interest analysis had already determined that the foreign state had "a legitimate interest in the application of its law and policy to the case at bar . at 184. [n Reply to Mr. For a more general discussion of interest analysis. is equally "interpretive. 101 Id. REV. 100 CURRIE. supra note 71. is whether Currie's presumption is more sensible than Beale's. "it seems clear that the problem of the renvoi would have no place at all in the analysis that has been suggested. 467 (1985) [hereinafter Brilmayer. Governmental Interest Analysis: A House Without foundations. '" [t] is a consummation devoutly to be wished. at 117-33 (discussing Brilmayer's critique). of course-i. he believed.258 (1939). Beale's approach. Kay. it will have substantially less resolving power on the question of whether skaters from other states count. if Currie's "of course" counts as interpretation. there can be no question of applying anything other than the internal law of the foreign state. 392 (1980) [hereinafter Brilmayer. Interest Analysis and thp jVIyth oj Legislative Intent. As Griswold wrote before rejecting a similarly optimistic conclusion.e.. Myth oj Legislative Intent]. See. which uses a presumptive territorial restriction... at 85 (" What married women [is a Massachusetts disability contract intended to apply to]? Why. Currie's examples of his method look like statutory interpretation only to the extent that imposing a presumptive domiciliary restriction is interpretive. Lea Brilmayer. Cowan's Views on Renvoi. 257. Cowan argued that this was justifiable by analogy to Whitehead and Russell's Theory of Types and on the grounds that the business of lawyers was merely "to avoid contradiction.nd in this case. REV.

. at 45. interest analysis needs some explanation of why renvoi should be reject~d." as Lorenzen charged occurred with renvoi generally. sujJI"{l note 16. Other states may choose to retain their traditional choice-of-law rules. it work. Oddly. seem odd to examine a foreign state's internal law in order to determine whether that state's law should be applied and then to apply not that internal law but the entirety of foreign law. if making recommendations to a court. It has neither the wideranging liberty of the scholar nor the narrow authority it wields with respect to the content of its own law. supra note 16. admittedly. Currie rejected choice-oflaw rules entirely and hoped to see them superseded by interest analysis. an interest analyst might then fino th.-tlysis was to avoid. they ness of logic and not of law." Griswold. Griswold quite properly answered that "it seems difficult to escape the feeling that the result has been assumed rather than established. It does. wpm note 2. it cannot impose interest analysis on them." Cowan. I 03 But identifying an oddity is not the same thing as making an argument.-tt the foreign state's choice-of-law rules directed the application of the (uninterested) forum's law. That normative stance is of course one that a scholar may justifiably adopt. as indeed many have. is that applying a foreign choice-of~law rule may undo the supposed gains of interest analysis. Having.ed by fiat rather than analysis. or at least his followers. But a court applying foreign law is in quite a different position.RESOLVING RENVOI is that a court following Currie's interest analysis plainly faces the same question as the territorialists: having decided to apply the law of another state. precisely what intert'st an. or only the internal law? In answering this question. either. Cowan argued that while the ipse dixit nature of tIl(' solution made it inadequate as a matter of logic. "it is entirely legitimate for lawyers to postulate where it would be illegitimate for a logician to do the same thing. ran together several quite distinct perspectives. A state court cannot discard the rules of other states. at 205. The refusal to apply foreign choice-of-law rules requires an additional justification-and an interest analyst. decided that the policies behind the forum's internal law are not implicated and that those behind the foreign state's are. SPI' Lorenzen. while Cowan offered a method of dealing with the renvoi that did not lead to paradox. the method had nothing more than the avoidance of paradox to recommend it. That is. at 45. sujna. must provide one." Cowan. Indeed. at 259. Currie. on closer inspection. for instance. As did the territorial approach. Here there is indeed an air of "<Ibdication of sovereignty. \!\That this suggests is that accepting the renvoi is not a happy solution [or interest analysis. A state supreme court convinced of the wisdom of this position is likewise free to discard its own judicially-crafted choice-oflaw rules and replace them with interest analysis. 103 The problem. interest analysis has resources for this task. of course. is it to apply the entirety of that state's law.

was that it resolved choice-of-Iaw problems in a haphazard manner. Choice oj Law-[ntnest Analysis: They Still Don't Get [I. choice-of-Iaw rules do not relate to state interests. at 81. sul)m note 98. 107 That 104 See CURRlE. The proper focus for interest analysis. lo . is internal law and internal law alone. there is a superficial plausibility to the idea that. 1121. and in particular whether state interests are "objective" or "subjective" (terms whose significance will be explained soon).he possi- . This line suggests an intent-focused method of statutory construction.. see Bruce Posnak. shows that this approach runs so counter to the fundamental presuppositions of interest analysis as to flirt with incoherence. at 183-84. 104 A deeper investigation. that I believe the interest analysts unwittingly transformed the legitimate suggestion that all state courts should reject their own traditional choice-of-law' rules into the illegitimate one that each state court should reject all other states' traditional choice-of·law rules.0 be essentially the same moves. For a modern statement of this position. [d. 1140 (1994) (" [T] he interest analyst is saying that the only policies that count in determining whether a state has an 'interest' are the policies behind its competing law. Currie evidently thought. 1.> In a significant number of cases. But those who are skeptical about the existence of legislative intent or t.lOt) But what are these interests.·0 T RF 11 . 107 Currie suggested (somewhat facetiously) that the aim would be achieved if "we could buttonhole in the statehouse corridor the personification of the Massachusetts General Assembly" and get an answer as to which cases the statute was me-ant lO cover. 106 See id. they fail for essentictlly the same reasons. and much of the debate over interest analysis centers on what it means to have an interest.. The Inherent Distinctiveness of Choice of Law The oddity just mentioned appears to be what Currie was relying on in his suggestion that there was no question of applying anything but foreign internal law. at 89-98. one should proceed to that application straightaway vvithout further dalliance in the choice-of-Iaw field. as the text discusses in more detail.\ 1\ I F I . Indeed. The great defect of the territorial approach. it sacrificed the interests of one or another state for no good reason. But I believe the best reading of his approach-"best" both in terms of his likely intent and on the merits-takes them to be simply shorthand for the end result of a process of statutory construction. 40 W. It is at this point.. as we shall see. without consideration of the policies underlying the competing laws. and who determines them? Currie never gave an entirely clear answer to this question.\ \\' R F \' IF:\\' prove 1."). having determined that the purposes of foreign internal law would be served by its application. 105 See CURRJE. 83-84. according to Currie. then. however. supm note 98. not the policies behind its choice of law approach or some other policy. And.WNF: L REV.

the result the legislature would have approved had it considered the problem) provides the fulcrum for much of Brilmayer's early criticism.g. Sedler. sU/Jm 1I0te 48. supra note 98. sll/na nore :")4. though apparentlY only on the grounds that sLate choice-of~law rules do nOl re!. it should be immediately obvious that the forum cannot ignore foreign choice-of-law rules. their power ovcr interests is irrelevant-as. l06A (1\-1:-)4) C"ITJhe 'inten-'st' IlTlllinolog\ is lllerely conventional. Kay and Sedler both agree that the aim of interest analysis is to apply state laws in circumstances in which doing so promotes the policies or purposes behind them. at 61 () (suggesting that interest analysts' "claim is that choice of law decisions should be made with reference to the policies embodied in rules of substantive law ..He to st. REv.g. how faithful this statement is to Currie's understanding of interest analysis is not entirely clear. The point of the in- . Kramer. l04!1.290 n.atf' interests.35 (1990).. at 609 ("Professor Brilmayer simply has got it all wrong. Rethinking Choice of Law. nor did Currie suggest that this would be desirable. at 1005 n. The partisans of interest analysis scolded her harshly for the alleged misinterpretation." which itself is just a method of statutory interpretation. L. at ] 005. are bility of personifying a multi-member body may of course substitute their preferred method. and the interests of the involved states in having their laws applied to implement those policies in the particular case"). at any rate. e. is the term itself .\ DEiS LJ."). at 393.hodology in a conflicts case as "trying to decide as it believes Congress would haye decided had it foreseen the problem"). 75 V\.."). The claim that interest analysis seeks constructive intent (i. sU/Jm note 7].ermination of a law's scope. sU/Jranote 3. sU/Jra note ?>. JOS But if that is so. 277. Kramer. The vitriol of these responses is pUZZling. and statutory interpretation is exactly what everyone agrees interest analysis claims to use. 90 COLUM. either actual or constructive. See Kay.RESOLVING RENVOI is.. at 300 (describing this method of statuto!)' construction as "black letter law" and "the most widely used and accepted approach to interpretation both in practice and in the academy"). See Kramer. indeed. and gi\'cn that legislatures can conlrol scupe. Scott Fruehwald. But the inqllil)' into the existence of an interest is simply an intermediate step in the det. Thl' A1-'1I11 41h!' "( i1/jnm 1idl'dJo)" " (. ] 08 As the text notes. See. supra note 98. at ] 27 (" [Professor] Brilmayer seems impervious to constructive criticism.. Kay. See Larry Kramer.g.. uf the Rrnvoi. Interest analysis is in no sense based on legislative intent. find many interest analysts arguing that their aim is to produce results the legislature would not have approved had it considered the question. 37 BR. 50 (1998) (urging courts to "attempt to establish the legislature's constructive intent by examining the law's purpose").(l\('. at 125 (stating that Currie was interested "only in how a statute or common law rule might be applied to accomplish its underlying domestic policies"). L. Sedler. at 606 (approvingly describing the Supreme Court's met. sU/Jm. One does not. Sf!' Kay. But each of these quotes \vould receive full credit as a deftnition of "constructive intent. after all.. e. 2]. SP-f! CURRIE..aw in Fedeml COU1tS: A Reevaluatiun. . the application of interest analysis does not require any particular interpretive approach. Chuice of I. RE\'. Brilmayer.91. ] 09 Larry Kramer gi\'es an excellent statement of this point in H"lw'II. e. Kay denies it.. See. Myth of Legislative Intent. 109 Those rules.\/'f' LaiTY Kramer. See. the first step of interest analysis is simply a matter of determining the scope of a state law by interpreting that law to determine whether it is intended to apply to a given set of facts.e. at 908-11. supra note 98. supra note 71.

supra note 3. In Pfau v. lex loci delicti was born from the conviction that state pO\ver was territorially bounded. 263 A. but because he did not himself fully understand the implications of his method. would be to consider foreign choice-of-Iaw rules at the stage of determining whether the foreign state is interested. As a martel' of intellectual history.N (n R F J) A l'vl r: l. I bclieve. supra note 109. . 110 The point could be disputed. supra note 98." fd. at 1014 ("I prefer to say that the state's law is 'prima facie applicable' in order to avoid some of the baggage associated with the term interest."v' applied to given issues in a tort case. as will become clear later..b. this is far off. . I think. v. III One way of eliminating the oddity. convincingly. "). Co." See Kramer. Carroll. Again. and does not relate to a state's interest in having its la. I would rather talk simply in terms of scope. 112 In saying this I do not mean to disparage Currie's contribution. 803. at 184. and I discuss it in more detail infra Part I1.\ 'v\' R E \' lEW the ones that govern precisely the question of whether a state's internal law applies. Currie was correct to link this phenomenon to renvoi." Id." CURRIE.. 137 (NJ. . Trent Aluminum Co. 807 (Ala. The second describes what in Currie's terminology is called an "unprovided-for" case. Kramer has done so.4. And even his brief and tentative discussion of renvoi contains two important observations: first that renvoi is "wholly artificial. it makes interest analysis run roughshod over its own aspirations. 1892) (equating operation of a territorialist choice-of-law rule to explicit territorial restriction in the text of a statute)..B. The relationship between the unprovided-for case and renvoi is discussed infra Part IV.. the counjustified disregard of a territorial choice-of~law rule with the observation that" [l] ex loci delicti was born in an effort to achieve simplicity and uniformity.B.R. .l. a conviction that tort law does not reach out-of~state events. 1970). but not. "). he phrases the analysis in terms of "prima facie applicability. ll1 The assertion of a distinction inherent in the methodology casts aside provisions of foreign law specifically directed to the question interest analysis tries to answer. 11 So. he suggested that in such cases "the forum would apply its own law simply on the ground that that is the more convenient disposition. This solution is.. and it quite definitely reflect<. 110 Interest analysis is thus by its own terms committed to the consideration of foreign choice-of-la'w rules. I 12 quiry is to determine what rights the state may have conferred on a party. Currie's conclusion cannot stand. being raised merely by the form of choice-of~law rules. The correct analysis is found in Kramer.. G. The most promising step to advance Currie's insights might well now be to abandon talk of interests. of course.2d 129." and second that renvoi within interest analysis is similar to "the case in which neither state has an interest in the application of its law and policy. His fundamental insight-that choice-of-law analysis can largely be assimilated to the process of determining the scope of state-created rights in purely domestic cases-is a tremendous conceptual advance. See Ala. essentially corrcct. at 184. though I disagree with Currie over the source of the renvoi problem and believe hc failed to eliminate it. I think it would be an even greater advance to abandon talk of "applying" a state's law at all. odd though it may seem. The first observation is accurate.S.

But see Lea Brilmayer. 24 COR. supra note 98. it has resolved the question of whether that state's law should apply. whether a state is interested in a transaction is shorthand for whether the transaction falls within the scope of that state's law. that state interests are "objective" and outside the control of the state courts and legislatures. suggest that explicit legislative statements as to scope were authoritative and desirable. but I do 113 In addition to suggesting that that the existence of an interest could be ascertained by asking the personification of the state legislature. they are simply wrong.. The forum is entitled to decide for itself whether a foreign state is interested. . The Other Stale's Interests. and legislatures. Determining the scope of a state's law is a matter of interpreting it. in so doing they seriously overplayed their hand and came close to compromising the plausibility of interest analysis as a conflicts methodology altogether. The Appeal to Objectivity We have seen already that after the failure of the attempt to deem foreign choice-of-Iaw rules irrelevant. then a forum may safely substitute interest analysis for whatever a foreign state's choice-of-Iaw rules provide. NELl. "are tentative and subject to modification on the advice of those who know beuer"-namely. 233. Understanding how this happened requires a more detailed discussion of the nature of state interests." That is.e. but the interest analysts did. and having made that decision. If this is so.RESOLVING RENVOI 2. based as they were on assessment of the purpose of a state's law. INT'L LJ. the next move is to characterize them as incorrect. for reasons that will appear shortly. that the foreign state is not interested). at 171-72. And to the extent that Currie addressed the issue explicitly. Id. but that is of no moment-to the extent that they suggest that the foreign state's la\'i does not apply (i. 113 But it is possible also to suppose that states are not authoritative with respect to the existence or nonexistence of their interests-that is. at 592 (emphasis omitted). CURRIE. It may be possible to give a more sympathetic exposition of the move. moreover. 241 (1991) (asserting that Currie "almost cenainly" had an o~jec­ tive conception of interests). This is the appeal to objectivity for interest analysis. The foreign state's choice-of-Iaw rules may prescribe a different conclusion. I have said that I find this understanding of interest analysis best on the merits. He did. Indeed. state court. In the preceding section. and the legislature and the courts of that state are of course authoritative in the drafting and interpretation of their own law. I adopted a perspective that takes state interests as "subjective. he seems to have endorsed it. Currie observed that an interest analyst's conclusions with respect to state policies and interests. The territorialists did not make this move as aggressively as they could have. see supra note 107.

On this account. 85 (1967). interest analysis loses 114 Peter Kay Westen. information" as to whether a state "would choose to assert its domestic interest" and that consequently "my willingness in 1968 to permit California to recognize Ohio's domestic interests on her behalf still seems justified"). and in that case interest analysis again runs headlong into itself. See Kay.R. L. for example. Co. at 913 (arguing that territorial choice-oflaw rules "provide no . The problem. As a current prescription. A restriction on scope may not be identical to the absence of an interest.S. 54 TEMP." !d. 74.31 (1968). Kay's point in that comment was the standard interest analysis claim that choice-of."1'4 But the whole venture of choice of law. . False Conflicts. 115 GriSWOld. G."llc. 116 Herrlla Hill Kay. unless they run afoul of constitutional restrictions. the same one we have seen attending the assertion of inherent distinctiveness. 15 uCLA L. it is defying provisions of state law (the choice-of-law rules) that are plainly intended to apply. 237. 117 See id. but the description is apt. Comment. v.145 (1981). Purcell. If a transaction does not fall within the law's scope. If foreign choice-of-law rules can be wrong. consists in "telling a court when it should cast aside its own rule in favor of one that is preferred abroad. L.Jaw rules-especially the traditional ones prevalent in 1968-do not reflect state policy. 55 CAL.'\ i\l E 1. at 1178. then state interests must be objective.NOT R F [) . 1892). 551. The "Essential" Role of Modem Renvoi in the Governmental lnterest Analysis Appmach to Choice of Law. she urges that "a court following interest analysis should still disregard the other state's traditional choice of law rule as irrelevant to its initial inquiry into the policies and interests underlying that state's domestic law. 807 (Ala. Comments on Reich v." IIH Those are strong words.. is that an approach that seeks to determine whether foreign law is intended to apply can hardly justify contradicting those provisions of foreign law that address applicability. supra note 54. 11 So. at 914. See Ala. 265 n. that "if the forum decides that a foreign state is interested in a case by looking to that state's conflicts law.Q. Carroll. any talk of interests is irrelevant. it subordinates its own choice of law to that of a foreign state. 118 John David Egnal. as Griswold had earlier observed in response to just this claim. 589 n. 117 John David Egnal has described this approach as "megalomaniacal and a serious breach of the forum's obligation under the full faith and credit clause. however archaic the latter may be.. REV. REV. Peter 'vVestcll argued.. states cannot be "mistaken" about the scope of their law. but it is dispositive with respect to the question of whether a law may be applied to a transaction.\ II' R L V I F IV not find those of its proponents any more plausible. The problem with both of these positions is that courts following territorial rules did quite clearly understand them as limitations on the scope of state law. 803. SUIJT(l note 11. Herma Hill Kay's suggestion that "[tJhe mere fact that [a foreign state] might mistakenly fail to recognize her own legitimate interests need not prevent [the forum] from recognizing her interests on her behalf' lin is similarly puzzling.

supra note 104. there is no reason for interest analysis to put that particular millstone around its neck. suj.l Interfsl Analysis. L.4. sujJranote 98. !Jut . something that the diversity of \'iews as to the content of that approach would make difficult in any event. 6H 1 (EJ8H). 1. § 2. . supra note 32. Sfe Kramer. "Currie was as metaphysical as Beale. f. SeeBRl1. at 50-5H. supra note 98."119 The interest analysts. supra note 104. each jealously guarded bv its adhere illS") . For a sampling of responses. BRIU\IAYER.o1!rrnmenla. " 46 OHIO ST. Fllf Use of Comparalive J17ljJainnen/ to Resolve T/'Uf Conjlicts: An L'7. Myth oj Legislalive Inlent.1'{/ note ]()4. and it cures none of the defects. Brilmayer. L.. at 106 ("If [the forum] respects 'stupid' substantiw preferences by other states.tives in the Conflict oj Laws: A Challenge.Ll. . why nol 'stupid' choice of law preferences. Phaedon John Kozyris. 1169 n .aw: A Rl'sjJOnSf to Projfssor Brilmayer\" "Foundalional Altad{. of course. As Brilmayer put it. "877. :=i63 (1984).. Whne A If' We 1111 FrudllfPIs Liability?. 1161. RE\". e. RE\'.23 (~OOO) ("I ndeed. Conflicts Them)' for J)11. at 105-09.Iff Posnak. supra note 9H. at 1141 (stating that "lilt' interest anah'st is saving Ihat the only policies that counl in delcrmining whether a slate has all 'interest' are the policies behind its competing law. at 11:\4-:16 (discussing treatment of foreign choice-of~law rules under interest analysis as designed to avoid "irrational" results). Brilmayer has suggested to the contrary that a state's choice-of-law rules should be respected to tbe same extent as its internal law." (citations omitted)).l7l 17l if." 121 Indeed. Methods and Objl'r. but interest analysis is committed to respecting the judgment of "those who know better. of ignOI'ing foreign choice-of-Iaw rules.5. supra note 3. LJ 483 (1985). Choicc oj I~aw: Interest Analysis and lis ''lv'ew Crits. Intl'i'l'sl A /Ia/ysis as thl' Pnjfrred AjJpmach to Choir:e oj ]..' The bct is that an authoritative organ of the Slate has decreed that what the state 'wants' is to have its law applied ill certain cases bUl not in others. To the extent that interest analysts asserted the propriety'. at 1005 (suggesting that adherence to "Currie's basic insight" should lead interest analysL'i to respect foreign choice-of-Iaw rules). Pusnak. Brilmayer. 12() . 1 belie"e Brilmayer's condemnation is correct. Sedler. Kay. 555. The 199:'1 treatise recapitulates some of the high point'. Robert A. took pains to avoid reliance on metaphysics and tended to describe their approach as enlightened rather than correct. not the policies behind iLS choice of law approach or sonw otlwr polin'''). 1 19 CER . slIjna note 32. ill terest analysis is becoming as diverse as Marxism or Christianity. of decades of earlier attacks on interest analysis.WER.g.").""{'f. for example. It is not my pltrpose here to take a side in the dispute over interest analysis.Posnak. 60 LA. 3:=i MERL. Sedler. J. see.)1'1'. at 592 (emphasis omitted). or even tbe possibility.t. 68 CAL. COl\IP.IaJ-ualiou oj lite Califurnia Experienr:e.'ife Hcrma Hill Kay.5. Other states may well have adopted unenlightened rules to determine when their law applies.RESOLVING RENVOI 18!)7 all plausibility as an attempt to vindicate state policies.1': Apn~s 1e Deluge. at least where such "policies" are understood as those the state has asserted. rather than the product of a priori theorizing. (. ~ ~. Bruce Posnak.g. 615 (1980) (describing modern choicc-of~law theory as "stagnant pools of doctrine. But as Larry Kramer has argued. Egnal is quite right to suggest that the assertion of objectivity or superior enlightenment presents serious constitutional diffiLea Brilmayer. "36 A1v1. 1~1 CL'RRIF. supra note 9H. REV. supm note 71. 120 But this is simply a more polite version of the appeal to objectivity.

CAVER. at 1135. even if the decedent is a state domiciliary with whose welfare the state is (of course) concerned.g. WESTLAKE'S TREATISE ON PRIVATE INTERNATIONAL LAw 38 (7th ed.72. 127 See NORMAN BE lWICH.126 At this point it is appropriate to address that "if' in more detail. The interest analysts who suggested that the forum may recognize the other state's interests despite its mistakes I ~~ or that the forum should "apply the law of the other state. If a sister state law. 126 They might have been on firmer ground had they attempted to justiry the rejection of foreign choice-of-Iaw rules as a form of depe<. It is not a novel claim. though not conclusive. at 589 n. 12 :.:age-the application of parts of multiple states' laws. Posnak would give somewhat more. the premise that powers most of its conclusions.127 and it plays a similar central role 122 Since at this point I am discussing renvoi within interest analysis. 125 Posnak does suggest that the forum should ignore an express statement of legislative intent that a state law reach a particular transaction. supm note 116. But-if a choice-of-law rule is equivalent to an explicit restriction within a statute-that is precisely what they suggest via the appeal to objectivity.5. of course." Id. even though that law doesn't want to be applied"124 would surely balk at the suggestion that the forum should allow recovery even though the foreign law does not allow it. at 1135 n. for instance. THE CHOICE-0F-LAW PROCESS 106 (1965). a wrongful death statute that applies only to deaths "caused within this state") it is a violation of the Full Faith and Credit Clause for the forum to apply it to those caused beyond the state's borders.. But there is no bar to a state's defining its interests in territorial terms-unless. such a territorial restriction should be considered the clearest possible definition of the state's interest. 1925) (concluding "that a rule referring to a foreign law should be under- . weight to an express statement that a state law does not reach a particular transaction on the grounds that such a limitation "is analogous to a declaration against interest. That choice-of-law rules are akin to explicit restrictions on statutory scope is one of the central claims of this Article. arguing that" [i] f the forum were bound to apply this foreign law or even bound merely to attribute an 'interest' to the foreign state. interests are objective. 124 DAVID F. the introduction of a territorial statute may seem not to play fair. 'I \: ~ " \ culties. sUjYra note 104. and ignoring a choice-of-law rule makes no more sense than severing a territorial restriction internal to a statute. Indeed.3l. But depec. John Westlake made it over a hundred years ago. The assertion that applying a state law to a transaction explicitly placed within its scope by the legislature could be irrational in terms of that law's policy is a stark example of how the appeal to objectivity rejects the policymaking authority of state legislatures. is explicitly territorial in scope I ~~ (e. an alternative the text offers reasons to reject. if the question of whether a state is interested is the question of whether its law is intended to apply." Posnak.NOTRE IL\MF L\W RE\'IEW . it could lead to a result that is irrational in terms of the policies of the competing laws and the facts of the case. 123 See Kay.:age makes sense only when the portion of each states' law that is applied can be severed from the remainder without doing violence to its coherence.

Kramer asserts that a choice-of-Iaw rule is a rule of interpretation and further that rules of interpretation are "part of a state's positive law.S. sUjJra note 28. See BATE. 134 But interest analysis rejects this perspective. 807 (Ala. 133 My purpose in these paragraphs is to ask whether a stronger case can be made. at ]] 23 n. 128 See BR1LIvlAYER. and as if its first line read as follows: 'V/hen a personal injury is received in Alabama bv a servant or employe. 129 See Kramer. at 106-07. they have. at 1011 ("A state's approach to choice of law by definition establishes the state's rules of interpretation for questions of extraterritorial scope. See sUjJm note] ] 9. are perhaps the sort of things that convince only those who have already had similar thoughts. and must be heeded for that reason. without a regard to which it would not be really that law which was applied").") . See BRILMAYER & GOLDSMITH. From the territorialist perspective. Co. at ]008-10. 130 The arguments offered in support. its most vocal proponents maintain that a foreign state's choice-of-Iaw rules cannot be considered dispositive on the question of whether that state's stood as referring to the whole of that law. sujJra note 32. though persuasive to me.' etc. as I have demonstrated. sujnG. sUjJra note 2. 1131-51 (criticizing Kramer and Brilmayer) . § 2."I3I Brilmayer challenges interest analysis on its own terms. Carroll. Id. even if "unenlightened" from the perspective of interest analysis. at ii.R. the statute must be applied "as if its operation had been expressly limited to this state. sUjJm note ] 04. . Posnak. necessarily including the limits which it sets to its own application. 130 See Lorenzen. 803. at 57. Interest analysts might simply deny the premises and respond that choice-of-Iaw rules are not rules of interpretation and that territorial rules do not reflect any policy judgment-indeed. I32 Neither of these arguments is a 100% knockdown. 1] So." Ala. J 29 In each of these contexts it has been disputed. the equivalence of territorial choice-of-Iaw rules and statutory restrictions is implied by the theoretical apparatus and was explicitly recognized by courts. construing a personal injury statute and applying a territorial approach. 1892). note 3. at 105-09. at 203 (dismissing Westlake's claim as "an absurdity"). G. arguing that choice-of-Iaw rules are expressions of policy. 13] 132 133 Kramer. The first edition of the treatise was published in 1858. Bate dates Westlake's acceptance of renvoi to his 1900 contribution to the discussions of the Institute on International Law.RESOLVING RENVOI in both Brilmayer's critique of interest analysis 12R and Kramer's investigation of renvoi. supra note 3.6. sUjJra note 2. \.5. 134 As the Supreme Court of Alabama put it.4.

1 i)(. 1:3b SI'I'.l'lliew o/Stall'-Cow1 Slale-Lawjudgrnents. Pnsnak.. 535 U. 138 The prillciplc is somewhat less developed in the interstate context. L. binding on the Federal courts"). but it does exist.\'us/Jecting lhe Slales: SUjnnne Court R.S. that disregarding foreign ch()icc-ol~L:l\v rules in fact runs counter to the central aspiration of interest analysis and that therefore interest analysis is committed by its own principles to respect them (which I take to be essentially Brilmayer's point). the presence of a federal right makes the difference. REV. This point is well established and need not detain us long. Thus a state court determination that no contract exists Glil defeat a litigant'S claim under the Contracts Clause. e. at 1134 ("The forum coun owes little deference to a foreign lq?. 1.. .I'ls --------J 35 SI'(. The exceptions fall into two basic classes. 518-19 (1897) (holding "the cOl1struClioll by the courts of a state of its constitution and statutes is. as a general rule.1 (2003) (same). some interpretations of state law may be so unexpected as to violate the Due Process Clause..S.islarure. The starting point is the observation that state courts and legislatures are authoritative with respect to the scope of their own law. 166 U. 1889 n. SlIjiUl note 104. and the practice could for that reason be recommended on grounds of practical utility. 137 (NJ. and the principle applies equally in the interstate context: state courts of last resort are authoritative with respect to the meaning of their law. See. tg. Fitzgerald. City of Columbia. The Supreme Court has long recognized that state court constructions of state law are generally binding on federal courts. 378 U.O Ltvv reaches a transactiOI1. REV. see /\ /abr/ll/ll v. See. 103 COLUM. 80. 1888. and so my aim here is to suggest that there is a constitutional argument for deference to foreign choice-oE-law rules. 654. It is also possible to show. 674 (2002). For a more modern statement of the proposition. I ~7 State courts plainly have no greater pO\ver than federal courts in the interpretation of sister state law. .11 (2002) (discussing "alltececlent state ground"). In such cases. and a determination that a litigant has defaulted a federal claim under state procedure can justify refusal to hear that claim.. 137 Sl'e. Prau v.g. 263 A. In both these circumstances. as I will below.S. Forsyth v. First.g. Trent Aluminum Co. 347 ( 19(4) (holding that state court interpretation of state law departed so far from preceden t as to consti tute a due process violation). City of Hammond.. But neither of these argumentative tacks is decisive. t. See Bouie v.g. that respecting foreign choice-of-Iaw rules need not lead to renvoi. Second. e.. 101 MICII. federal courts assert some power to second guess the state law ruling. Kermit Roosevelt III. Laura S. Lighl From Dead Stars: The Adeqllall' alld Independent State Ground Reconsidered. S'helton. 1970) (suggcsting that territorial choice-of-law rules can be ignored by courLS following policyoriented approaches). as I have above. indeed."). it has a clear textual basis in the Full Faith and Credit Clause.:M 129. state COlirt applications of state law can be reviewed where the cunscquence is the dcnial of a federal right. 83 n. j06. 1:F • Similar pronouncements have been made by courtS. I'.g.':'·h It is possible to argue.

-\ certaillsense. 291 U..g.S. it would seem.S. of course. 383 U. ").497 (1941). Certainly state courts are authoritative as to the meaning of their own law.' to include Klaxo/l as progeny of f. Gibbs. J 39 . stated explicitly that a federal court applying state law must heed the limits set by that state's choice-of-Iaw rules. the Supreme Court of Mississippi speaks with ultimate authority. Co.pe.."14o A federal court lacks the power to disregard the limitations that a state. it is useful to look to the in teraction of state and federal courts. 717.-i('..g. through its choice-of-la'''' rules.'ilh respect to pendent state claims). 140 313 U. 14] Kloxo/l. Prairie Oil & Gas Co. v.2d ]] 6R. which is that "[t]he exclusive authority to enact [state] la\\'s carries with it final authority to sav what they mean. Gluck \'. Hartford Accident & Indem.200 (J927).. has placed on the scope of its law. and lower courts have understood the direClin.<. 139 But do choice-of-Iaw rules answer that question? Do they delimit the substantive scope of state law? Again. Nelson Mfg... 273 U.S. 726 (1966). 487. holds that federal courts exercising diversity jurisdiction cannot second guess state courts as to the scope of their law.l\\· rules relatt' to the sllbslanti\'(' scope of SI.-vis federal courts. deals with federal courts exercising diversityjurisdiction.O. e.358 (1934) ("As to the meaning of the statute .. 141 To put the point slightly differently. United Mine Workprs oj Ame. Co. Klaxon v. \Vortman. 352.RESOLVI G RENVOI But the foregoing gets us only to the stage of raising the fundamental question. It recog· nizes thaI Slate ch(lice·of·I. 142 Sun Oil Co. a state "is free to determine whether a given matter should be governed by the law of the forum. but the principle that a federal court applying state law must observe the limits placed on thai la\\' by the Slate's choice·ol~Jaw rules has been recognized in the context of pendent jurisdiction as well." Jones v. 715. Klaxon recognizes that to apply state law means to apply the entirety of state law. ]95. ] 17~J n.He til\: and thus I 1 . V'll' assume in accordance with its ruling that the statute was intended to apply to such a bond as the one in controversy here .S.~ (3d Cir.. 142 I thus read Klaxon to be constitutionally grounded in .7m v. 960 F. the Court has recognized that state choice-of-Iaw rules amount to restrictions on the scope of state law and bind other forums.. 486 U... Thus. 730-31 (1988) (noting that clear and willful misinterpretation of sister state law violates the FuJI Faith and Credit Clause). and certainly whether a state's law applies to a particular set of facts is a question of its meaning.S.·. fcckral courrs to follow Erie in deciding state law claims uncler pen· dentjurisdinion. v. subject only to constitutional constraints. It would seem at any rate 1:0 follow more or Jess immediately from the rationale for state interpretive supremacy vis-a. v"here the questions of respective authority have been addressed in more detail. See. e. Stentor Electric Manufacturing Co. N. Unisys Corp. it turns out.. The Supreme Court has. direct:. the idea that internal Jaw may be separated out and "applied" by itself is simply false.. EJ92) (statillg Klaxo/l requires application of a forum state's choice of law principles in di"ersit\ cases and .

we have seen. A valuable recent contribution is Borchers. and by extension Klaxon. Borchers argues that Erie. the Constitution seems to have turned out to be a suicide pact after all: it has prescribed the very circulus inextricabilis the territorialists invoked as reason enough to reject the renvoi... The Supreme Court has said as much in considering the limits the Full Faith and Credit Clause sets on choice-of-law rules. whether its law applies.. Impossibility of compliance is sufficient excuse to ignore a constitutional demand. have no greater power than federal courts to ignore authoritative constructions of sister state law. But state courts." lc!~\ Klaxon thus requires federal courts to adhere to state choice-of-law rules not merely on the question of whether local law applies. ELEMENTS OF CIVIL PROCEDURE 390 (4th ed. supra note 66.NOT R E l):\ . as expressed in its choice-of-law rules. or should be. which of course is not saying much. If each state must..\ W REV lEW Matters are not quite that simple. apply that state's choice-of-law rules. but also with respect to the application of foreign law. It grants to state courts the power denied those of the federal government-the power to ignore a state's determination. or even to apply state law at all (the Hrie question). puzzling. at 118-19. vVhatever constitutional bar exists to the latter practice also forbids the former. The explanation is presumably that the Klaxon Court saw that imposing similar requirements on the states would lead directly to the infinite regress of renvoi. A federal court disregarding state choice-of~law rules would no more be applying the law of that state than would a federal court applying one section of a state statute while ignoring another. See l\tlAURlCE ROSENBERC ET AL. are not constitutionally grounded. for the quoted sentence continues "or some other. 143 Klaxon. See id.. There it pointed out that a straightforward application of the constitutional text would seem to require that "the statute of each state must be enforced in the courts of the other. when applying the law of another state. This is not to say that the Constitution requires federal courts to apply any particular state's law in diversity actions (the main Klaxon question). it asserts only that Klaxon was correct in recognizing that a federal court that ignores the scope of state law as set out in that state's choice-of-law rules is not applying that state's law in any meaningful sense. This second step is. 313 U..S. This Article takes no position on that broader question. it is only to say that "applying" state law means applying state choice-of~law rules to the extent they specify the scope of state law. E L . at 497. federal courts exercising diversity jurisdiction need not apply state law. The scholarship focusing on Klaxon is sparser than that discussing Elie. but cannot be in its that federal COUlL') purporting to apply state law must respect the limits set out by choice-of-law rules. 1985) (noting that the volume of Erie scholarship is enough to "sink it without a trace"). however. .

147 Of course. 547 (1935). are bound by the restrictions on scope embodied in that state's choice-of-Iaw rules. and an argument that relies on the first half of a sentence while disregarding the second is somewhat less than indisputable as a reading of the doctrine. in applying a state's law.·v. 92 COI. I have argued. 20(0). L REV. more or less inexorably.2528-29 (offering a full faith and credit methodology).. the Court has responded by draining it of meaning. at 10] J_ 147 . (Thus. 146 And it was mistaken to suppose that recognizing choice-of-Iaw rules as authoritative restrictions on the scope of state law would generate paradox." frl. 294 U.] 45 But we should not give up so easily.UM. Thus. Unable to read the text literally. 249. I do not. Klaxon did not say that. consistent application of Klaxon's basic principle resolves the difficulty. then. to the conclusion that states cannot ignore sister state choice-of-law rules. claim that the current Supreme Court sees things this way or is likely to in the near future. foreign choice-of-Iaw rules must be heeded. ]46 SpeRooseve]t.S 11• Gmeral Molors COl!). 145 See Douglas Laycock. ir need not be taken seriously at all").S. In Phillif). From that principle it follows that each state is authoritative as to the scope of its own law-and consequently not authoritative with respect to the scope of foreign la.2d ]002 (Mont. supra note ]3. Packers A. Ji. is simply that all courts. That state courts are supreme in the exposition of their own law is one of the most fundamental postulates of our post-Erie jurisprudence. The Supreme Court of Montana seems to have reached essentia]]y this conclusion. at 2503-]0. the other state's choice-of-Iaw rules have final say. The Court was mistaken. Indus. 995 P. giving each state authority "vith respect to the scope of its ovm law simultaneously denies it authority with respect to other states' laws. I am not arguing that applying a state's law means respecting the prescriptions of its choice-of-Iaw rules as to whether some other state's law applies-indeed. VVhat I have tried to suggest is that the logic behind Klaxon does lead. and rherefore. it should be clear.qual Citizens oj Equal and Territorial States: The Constitulional Foundations a/ChoicE' oII_aw.s'n v. at least to the extent that they relate to the scope of foreign ]44 Ala. it noted that North Carolina "adheres 1. 532. In fact. 295 (1992) (characterizing the Court's approach as supposing that "the phrase cannot be taken literally.. I am arguing that on that issue. in thinking that no plausible method exists to implement a meaningful full faith and credit requirement.) "Vhat Klaxon should have said.RESOLVING RENVOI own" 14 4 -an obviously absurd result. Accident Comm'n. and could not.0 the rraditional place of injury rule" and that therefore "the scope of North Carolina product liability law does not include causes of action for proouetS purchased in North Carolina by North Carolina residenrs which GUise injun outside of :orth Carolina.

..e. Why ought the forum not adhere to its own self-restricting interpretation and apply the law of the other state. . 151 fri. the question seems to be easy of solution . The Local Law Theory The local law theory was little pursued by interest analysts. IIK The only way to escape this line of reasoning. for unenlightened reasons. supra note 114. 150 C'\\'ERS.. albeit incornplctely. does not apply to the case at hand. at 106 (noting that the forum could "deny that X knows its own interest or that its conventional choice-ot~law rule identifies that interest") . "If the forum is satisfied that its domestic rule should not be applied and that the X rule provides an appropriate norm. given its purposes and the connection of the event or transaction with State X.l." he continued.»2 frl. Westen. believe..j~) If one is willing to supplant foreign choice-of-Iaw rules with those of the forum. why should not forum law come to the rescue? David Cavers identified renvoi as a problem for interest analysis and considered and rejected the first two moves. 149 Sef. even though that law doesn't want to be applied?"':>l As stated.law. "then why should the forum refrain from using the X rule?"1:>2 148 Choice-of~law rules may perform another function: they may resolve conflicts between rights created by the laws of different states by specifying which right shall prevail. a determination that forum choice-of-Iaw rules should trump those of the foreign state. Its significance for this section. But that is precisely the move that Klaxon rejects. they are something like procedural rules with no direct link to substantive law. this sounds much like the appeal to objectivity.. 1. This is an important conclusion. is to argue that choice-ot~law rules are not in fact about the scope of state law. But Cavers had a somewhat different idea in mind. either because they believed the appeal to o1?jectivity sufficient or because of the obvious tension with the aspirations of the methodology. why not take the next step and place the entire matter within the authority of forum law? Indeed. however. 3. F. is simply that it demonstrates that the appeal to objectivity is no sounder for interest analysis than it was for the territorial approach. But it could be seen as implicit in Westen's suggestion that states should disregard foreign choice-of-Iaw rules to avoid subordinating their own rules. and one to which I will return repeatedly. sl1tna note 124.O Then he commented: "For me. if one concedes that foreign law." See infra Part ULA. [call these rules "rules of priority" in distinction to "rules of scope. i.

" 1ules selcCl l"onlill t1l\·. without reference to the question of whether any rights actually exist under X law. at 178 (noting the central prublem or cOllf1icts of laws is determining the appropriate rule of decision). it does so because the foreign state is interested and the forum is not. .f'su/Ira notes 70-74. In fact. It is hard to see. The other approach it resembles is what Perry Dane has called the use of rules of assimilation: the process of shaping forum law to resemble foreign law. the logic of his suggestion is that of Cook's version of the local law theory: the X rule should be applied because the forum has deemed it substantively appropriate. Even if the local law theory is invoked only in the face of renvoi.l.' of a third st<-lte.RRII·. it manages to combine the defects of both the moves already rejected. A Solution? "Vhat the preceding sections demonstrate is that the analytical moves by which the territorialists vainly sought to overcome the renvoi are no more effective in the hands of the interest analysts. \A/hen interest analysis directs the application of foreign law. ill elSCS ill which tll<' foreign ehoin> of tl\\' rilles sell"C1 ihl' tn. COII/lil'l nJ Laws: /-iIlPign IJIW as J)ullnll. . the local law theory fits oddly with interest analysis. Second..'hieI1 \. the constitutional difficulties associated with the appeal to objectivity persist-though perhaps to a lesser degree. 47 (196:'» (critically assessing CUlTie's c1atllll1 argument). 151 The due process problem of applying forum 1. s7IjJla note 98.RESOLVING RENVOI Although Cavers does not explicitly state that the" X rule" should be applied as forum law. 53 C\l. the methodological contradiction that accompanied the assertion of inherent distinctiveness remains.):~ As a general approach to choice of law. Henna Hill Kay. there is no explanation for why the existence of renvoi makes it appropriate to disregard foreign choice-of-law rules.'l\" despite a lack of cOlilaus between the forum and the liti~atiol1 may bl' reduced because if foreign ell< )ice-of~LI'. Assimilation likewise works by adopting some of the substance of foreign law without regard to whether or how the adopted law would be applied bv a foreign court.11'1' alsl! it!. L. as a general matter. The problem dOl'S arise.:ill be a rarl' CISl'. foreign law is sought not as a rule of decision but "for the collateral purpose of ascertaining some datum that wi 11 be re levan t in the applic11 ion of the rule of decision which is unquestionably provided by the law of the forum. RE\·. ·1. why in such cases foreign law should be assimilated to forum law rather than being applied directly. lhe n>quired conlaClS "ill be larking onlv if tIlt' jOl-eig-n nile is ullconstilllti(!I1al. . F )4 The local law theory does not allow interest analysis to overcome the renvoi. As Currie put it. None of the three standard gambits offers a convincing reason to reject the 153 SP. Cavers seems to suggest local law simply as a specific patch to solve the renvoi problem. but even in this guise it is inadequate.. !lmvl'HT. at 69." Ct. First.

Nadelmann et al.1217 (1946) ("A second means of harmonizing by looking more closely at the competing laws may be found by examining not merely the policy but the conflict of laws delimitation of each law. Interest analysis. 158 ARTHUR TAYLOR VON MEHREN & DONALD THEODORE TRAuT. has one more device that must be considered. 1961). others followed. before the forum formulates its choice-of-Iaw rule for the case. eds. Currie concluded that if internal law alone was consulted to ascertain state interests. at 1 J 35-36 (suggesting that "the question of whether the foreign state would apply its own law should be relevant if the foreign state follows some form of the 'new learning'''). THE LAw OF MULTISTATE PROBLEMS: CASES AND MATERIALS ON CONFLICT OF LAWS 76 (1965). Egnallists Cavers. 1 :>9 But the suggestion won broad approval. see also Posnak. 390 (Kurt H. 156 Arthur Taylor von Mehren. supra note 118. L. and in consequence he urged that "the question posed by the renvoi approach be asked at the very beginning."IS5 The conclusion makes a good deal of sense.1866 "IOTRE DAME LAW REVIEW renvoi or any method of terminating the regress if the renvOI IS accepted. Choice-of-Iaw rules. and Leflar among its adherents. supra note 98. at 255. might very well be relevant to the question of whether a foreign state is interested.. is likely the prima facie oddity of analyzing a foreign state's internal law in order to determine whether it is interested and then applying not that internal law but the entirety of foreign law. however. "there can be no question of applying anything other than the internal law of the foreign state. ChiefJustice Stone and the Conflict of Laws. others did. Paul Freund made a similar suggestion in 1946. and though he did not. is flawed.157 and as what von Mehren called the "functional approach" to choice of lawl:>R grew in popularity. in XXTH CE TURY COMPARATIVE AND CONFLICTS LAW 380. but he was by no means alone. The reason Currie believed interest analysis eliminated the problem of renvoi. I have said. REv. the premise. Some interest analysts-notably those who sought to avoid renvoi via the appeal to objectivity-protested on the grounds that consulting the foreign state's choice-of-law rules amounted to subordinating local policies. 59 HARV. Arthur von Mehren suggested.'vIAI . 1210. Weintraub. supra note 1 O£~. Currie might as well have asked why interests were determined by examining internal law rather than the entire law. in other words. to consider foreign choice-of-Iaw rules not after foreign law has been selected but in the course of deciding whether it should be selected."15n One ought."). however. at 184. I6o 155 CURRIE. 159 See supra notes 54-69. The Renvoi and Its Relation to Various Approaches to the Choice-ofLaw Problem. . 157 See Paul Freund. 160 Egnal. Von Mehren was one of the early proponents of this position.

Before the more general discussion. 45 BUFF. at 1004-05. Rn·. supra note 3. ~ l?ii-\(l) (addressing the issue in contract cases). if so. it is not a complete solution because it considers foreign choice-of-Iaw rules only as useful guides to the construction of interests. This distinction is the linchpin of what I will call the two-step model. however. offers seven relevant factors but no explanation of how to weigh them 161 Set' Kramer. The Second Restatement The scholars of the American Legal Institute began work on the Second Restatement of Conflict of Laws in 1953. Systems that are less well developed or less functional. apparently.R (1997). I postpone a full discussion. Section six. 162 "1n a fully developed system of functional choice-of-Iaw rules. 1n such a system. Smmd) (md IntPrp. by which point the academic revolt against Beale's pieties was well underway. at 1002 (stating that the "prevailing view among interest analysts is that it is preferable to ignore foreign rules").lt AnalYlis. Interest analysts do. and. at 393. 162 Last. Shaman. under what conditions.)f't' RESTATUdENT (SECOND) OF C00:FUCT OF L\ws ~ 145(1) (1971) (addressing the issue in lort cases): id. they should state fairly precisely whether the jurisdiction wishes to regulate a given issue at all. 163 Set' Jeffrey M. . 5ujJTa note 156." von Mehren wrote. these rules would be relatively particularized and nuanced. 1. there is one more modern choice-of-Iaw approach to consider. occasionally. it seems to take the foreign conclusion as to whether or not foreign law applies as a bivalent variable-either the law applies or it does not-rather than distinguishing between the questions of whether foreign rights exist and whether they should prevail over conflicting forum rights. 329." von Mehren. rather than for any consistent theoretical reason. C. not definitive statements. it deems them useful only if they reflect an enlightened or "functional" approach."l64 but identifying that state is no easy task. even give weight to territorial choice-of-Iaw rules. the centerpiece of the Restatement. 33] & n. Vicissitudes oj Choia of I"aw: Thp RPstatelllf>nt (First. 164 . 5ujJTa note 3. almost no one suggested that a territorial choice-of-Iaw rule should be heeded. Its central command is to apply the law of the state with "the most significant relationship. See generally Kramer. but they tend to do so opportunistically. and the project was not completed until 1971. nu. As put forth by von Mehren. "much vital information would be stated in a jurisdiction's choice-of-Iaw rules. and I develop it further in Part III..!f':'\ Despite its lengthy preparation. in order to avoid an othen\'ise difficult choice. the Restatement strikes many readers as half-baked. Ferment in the courts and law reviews made it difficult for the drafters to agree on which approaches should ""in a place in the Restatement.RESOLVING RENVOI Because this approach is quite similar to one I will consider later. could be ignored. 161 Additionally.

§ 8(2) cml. L RE.\'." fri. Comment h to subsection 8(2) explains that the exception will apply "when the other state clearly has the dominant interest in the issue to be decided and its interest would be furthered by having the issue decided in the way that its courts would have done. it is difficult to evaluate its success in handling renvoi. [the Second Restatement] produced mush. k. None of the moves has been much invoked by scholars. § 145 cmt. . Subsection 8(2) makes an exccption for cases in which "the objective of the particular choice-of-law rule is that the forum reach the same result on the very facts involved as would the courts of another state. 1. as Currie thought. The renvoi problem. the same three moves discussed above are available. but of 165 Joseph Singer. perhaps because the Second Restatement is too indeterminate to lend itself to theorizing. 1). obvious answer exists. RPal Conflicts. it suggests that the question of whether a foreign state would apply its own law is relevant to (though not dispositive of) the question of whether that state should be deemed to have an interest. Inn like the First." ld. Like von Mehren's approach. And indeed. incongruence. § 8 (2). these recommendations indicate some progress towards what I call the two-step model and represent an encouraging advance. it offers no detailed explanation of why foreign choice-of-Iaw rules should not be applied.U.\[ F l." fd.77 (1989). at253 ('Trying to be all things to all people. Laycock. Like the First Restatement. at 357-64. it is rifc with inconsistency. or gives the forum authority to override foreign choice of rules."). the value of the Second Restatement for this Article is not that it offers a distinctive approach to renvoi. or suggests that foreign internal la"v should be assimilated into forum law. like the others. Sf'e id. the Second instructs courts generally to reject the renvoi and apply the internal law of the selected state. . however. is indeed an artifactnot of any particular approach to conflicts.. they fail for the same reasons: nothing in the most significant relationship test explains why choice-of-Iaw rules can be distinguished from internal law. § 8(1) cmt.ws § 8(1). and incoherence. \(i7 If explanation is sought. at 361. supra note 145.'\ \\' R J:: \' I F \ \ or decide cases in which the factors point to different states."II. I will show. has saddled itself 'with unnecessary difficulties. a silence that in the words of Joseph Singer "mystifies rather than clarifies. 167 Comment d to subsection 8 (1) describes renvoi as a problem of characterization (dctermining whether "law" should be taken to mean internal law or entire law) and admits that "no .. see. The Restatement does." fd. "Because the second l?'estatement tries to be so much and do so much. suggest evaluating state interests in a manner akin to that discussed in the preceding subsection. h.\. 69 B. id. that is. d.:' Because the Second Restatement contains a rnelange of different approaches rather than a distinct conceptual perspective.'\i () T R l'. For other examples of academic criticism. but rather that it presents a pure example of a certain type of approach to conflicts-one that. 166 See RESTATEMI-:NT (SE<:OI D) OF CONFUCT OF LA. sU!JI/I note 163. Unsurprisingly. h. for example. § 8(2) cmt. Shaman.

RESOLVING RENVOI

186 9

the picture that inspires the various approaches, the picture according to which the task of a court facing a choice-of-Iaw problem is to follow its choice-of-Iaw rules in order to determine which state's law applies. Understanding where this picture goes wrong, and how its error has been embedded in the various approaches, requires the deployment of a different perspective on conflicts. Explaining that perspective is the task of the next Part.

III.
A.

REVISI: G RENVOI

The Two-Step Model

The preceding Part has demonstrated that none of the leading approaches to conflicts offers a satisfactory resolution of the renvoi problem. The importance of this failure \""ould be reduced if states could at least agree on a choice-of-Iaw methodology. Renvoi would still arise, as discussed earlier, as a consequence of differences in characterization or substantive law, but it would do so less frequently. Its continuing significance depends in part on the fact that no agreement has materialized, and none seems likely in the foreseeable future. The most recent of Dean Symeonides' invaluable surveys of American conflicts law shmvs that no choice-of-la\"" approach predominates. 16:-l The Second Restatement enjoys plurality status, but that tends if anything to reduce agreement, for the Second Restatment's application can vary so much from court to court as to virtually amount to distinct approaches. Methodological pluralism, in short, is the order of the day. That makes things harder. The interest analysts who appealed to objectivity \vere at their most plausible when they asserted that territorial choice-of-Ia\v rules were not well thought-out restrictions on the scope of state law, but simply relics of the past, fated for obsolescence as soon as their authors grasped the new learning. 169 Given the dog168 Symeon C. Svmeonides, ChoirI' oj Law in the Ammiwl1 Courts in 2002: SixtN'nlh
COMPo

Annual.SIUtH",', 51 A~I.J. COMPo L 1,4-5,4 n.17 (2003) (citing SymeoI) C. Symconides,

ChoirI' 0/ [_all! il/ t!ll' /I IIIl'rial11 Courts in 2000: As thp Cen//lIY Turns, 49 Al\1. J
(200 I)).

L 1

Hi9 SI){'. I'.g, David E. Seidelsoll, Thp Allu'riwniwlion oj ROllloi, 7 DL;(~. L. RL\·. 201, 211 (1968) (suggesting that courts shoulcl disregard only those lex loci decisions that are vestiges of a less-sophisticated period). From one perspective, this makes sense as a son or constructivc intent: it is at ieast plausible that a court or legislature awarc of differenl approaches \\'ould decide to adopt the modern learning. From another, it c10es not: it is precisely the older cases thai reflect the strungest commitment [0 territorial scope. ;md constrllctin' intent is l10t usually inyokecl to on>ITide explicit state111(:'111 s to t h<: cOlltr;ll;'. The Suprenw COLI n, for i nSl,II1 C<: , has made clear I hat lo\\'er COl Ins sholdd not foll()\,' ,I "coI1Slrllctiv(~ intent" to O\tTllllTl lin' preCt~dents. SI'I'Rodri-

ged persistence of the First Restatement, the assertion rings increasingly false-territorialist states mean what they say, and their choiceof-law rules cannot be disregarded as misguided or quaint. Von Mehren's suggestion that courts could draw important information from the choice-of-Iaw rules of states that had adopted a "functional" approach was offered in 1961 and bore at least a tincture of the optimistic belief that all or most states would soon welcome the new learning,170 Twenty years later, the Cramton, Currie, and Kay casebook, with a mixture of wistfulness and irony, labeled von Mehren's hoped-for day the "millennium"-the time when all choice-oflaw systems would be rationaP71 The latest version of the casebook drops that reference; 172 the chronological millennium has come and gone with no cleansing apocalypse. The heresy of territorialism persists-and that, as far as renvoi is concerned, looks like the real end of the world, But the lack of consensus need not thwart us. Conflicts scholarship has made progress, though one might not think so from reading the law reviews. 173 The first significant step is the legal realists' claim that choice-of-law questions should not be treated as esoterica but rather understood as conventional legal questions. This insight promised release from the whirlpool of theory,174 if one could only figure out what it meant to treat a conflicts question as an ordinary legal one, The realists did not; after making the suggestion, they tended to fall back on vague admonitions to use "the same methods actually used in deciding cases involving purely domestic torts, contracts, property, etc."17') Brainerd Currie did; he recognized that conflicts is, in part,
quez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477,484 (1989) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling iL'i own decisions.") . 170 See von Mehren, supra note 156, at 392-94. 171 5;ee ROGER c. CRA ITO ET AL., CONFLICT OF LAWS 401 (3d cd. 1981). 172 .')'ee CURRIE ET AL., supra note 26, at 248-49. 173 See, e.g.,juE GER, supra note 25, at 146 (stating that "the ferment in the United States has not produced anything truly novel" and "the conflicts experiment conducted in the vast laboratory of the American federal system has been a gigantic failure") . 174 It is a truism in conflicts that the same approaches recur. See JUENGER, supra note 25, at 45-46 (" [T] here are only three basic choice-of-Iaw methods ... [t] hat have coexisted since the Middle Ages."); Patrick]. Borchers, Professor BrilmaYeT and the Holy Grail, 1991 WIS. L. RE\'. 465, 466 ("American conflicts scholars have a remarkable talent for reinventing the wheel and claiming it as their own design."). 175 COOK, sulJra note 70, at 43.

RESOLVING

RENVOI

simply a matter of determining the scope of state-created rights and that, to this extent, it is the same task courts perform routinely in wholly domestic cases. 176 Given that insight, choice-of-Iaw analysis can be described as a relatively simple two-step process. 177 First, a court must determine which of the potentially relevant la\,vs grant rights to the parties. 17R Doing so is a matter of consulting what I have called "rules of scope." Sometimes this step of the analysis will reveal that only one law does so, in which case the court has discovered what Currie called a false conflict and can enforce the rights created by that law \,vithout further ado. And sometimes it will reveal that more than one state's law grants rights, and that the rights created by the different states' laws conflict. This would be what Currie calls a true conflict, a case in which, for :nstance, the plaintiff is entitled to recover according to State A law, but the defendant is protected from liability according to State B law. In such a case, the court must resort to a different sort of rule, what I will call a "rule of priority," 1 79 \",hich tells it which of the conflicting rights will prevail. So far, so good, I hope. This description of the conflicts problem should at least seem plausible. 'What I claim for it, however, is more than plausibility, though less than any sort of objective accuracy. My claim is that this model will allow us to do conflicts analysis without the sorts of problems that plague the conventional understanding-in particular, without the problem of renvoi. Now it is time to prove that claim.
176 See CURRIE, supra note 98, at 183-84.

177 The model is developed most fully in Kramer, supra note 108, at 291-318. Perry Dane offered a similar, less-fully articulated account in Dane, supra note 29, at 1250-51. 178 Here I switch from speaking about whether a law applies LO whether the law grants rights. This is commonplace in the domestic case; if we say that a statute applies to a particular set of facts, what we mean is that it creates rights. I have aI-gued that this latter description is more useful for the conflict.s COI1lext., see Roosevelt, sujJTO note 13, at. 2482-85, and I will show later why this is especially true as lar as renvoi is concerned. See infra Part III .B. Currie did not free himself from the rhetoric of "applying law," which is the cause of most of his subsequent errors. Sef infra notes 207-11 and accompanying text. Kramer has not abandoned the rhetoric entirely, though he does understand that the basic issue is the scope of the laws, which is to say, lhe righLs of the litigaI1ls. See Kramer, sUjJra note 108, at 284 (describing "an inapplicable law" as "a law that does not give plaiI1lilf a right to relief'). 179 In an earlier article 1 called these rules "conllicts rules," in part to sllggest that these rules were the proper focus of the field misleadingly named "choice of law." 5fe Roosevelt, sulna note 1;), at 2468. Further thought, inspired in part by David Franklin. has cOJl\'inced me that "conflicts rules" is a confusing name. anrl I renounce it.

706 (1872». Kristensen. the forum cannot disregard that fact. 178 (1950) Uackson. lHO Since the aim of the two-step model is to enforce rights created by positive law.'''UTI<~: [)!\i\II': LAW KEVIE\. a provision allowing recovery only for wrongful death "caused in this state"). and choice-of-law rules are.. The renvoi problem arises. What it can do. and it has no more power to 180 At least. This problem is relatively easy. Cf: McGrath v. for instance. More precisely. after all. however. at 2479 ("Choice of law rules are not rules of scope. when the forum's choice-of-law rules instruct it to apply the law of another state. cannot eliminate any real problems. 26 L. each of which can be solved. . No state. it is the question of whether foreign choice-of-law nIles should be consulted in order to do so. renvoi does not exist. and the scope of foreign law is not a question of forum law.R. I. The general point is simply that foreign courts are authoritative with respect to foreign law. though it was not in the days of Swift v. Tyson. R. has the power to disregard an explicit restriction on the scope of another state's statute (as.' B. Within the two-step model. and Currie was right not to defer to them.envoi Within the Two<. one might think. IRI State courts. Styrap. at least in part. How to decide what a foreign choice-of~law rule means about the existence of foreign rights is slightly complicated and requires a bit more exposition.") (quoting Andrews v. at which point it must decide \vhether to apply the entirety of the other state's law or its internal law alone. 162. concurring) ("The matter does not appear to me now as it appears to have appeared to me then.S."). Talking in terms of identifying and enforcing rights rather than applying the law of a state. J. 340 U. is to eliminate problems that are not real. See ill. if the courts of a foreign state would find that no rights exist under foreign law. Ascertaining the Scope of Foreign Law The first renvoi-related problem is how to determine the scope of foreign law. the insoluble question of renvoi is disassembled into two discrete problems. the problem is easy when considered explicitly from the proper perspective. This might seem simply a rhetorical move. for instance. (N.s and then resolves any cont1icts.) 704. That is uncomroversial now.T.S. but are simply artifacts of the conventional description. The analysis I offered in suppon of that assertion does not now seem to me adequate. And that is true enough.>'tep JVlodel 'Within the two-step model. the answer to the question is yes. 181 I postpone a discussion of how this analysis works with regard to the various choice-of-law systems considered earlier. But a court working within the two-step model never decides to "apply" the law of either state: it simply ascertains the existence of rights under the various states' la\·\. about the scope of state law. are authoritative with respect to their own law. recall. I earlier took a different perspective on the issue.

of course. after determining that conflicting rights exist.)'1'(' . for a rule of priority instructs a court to privilege either local or foreign substantive rights. and the closest analog to renvoi proper. for tbe resemblance is only superficial.e" LO determine where. according to Pennsylvania law. essentially. A state's chnice-of-Ia\\' rules.. and irreit'vant to the qtwstion or whether some other state's law does. then.her thol stale's law creates rights.\/llntl [ext accompanying notcs 11O-·1i~. If each state's rules of priority provide that the other state's rights should be given effect.he existence of Pennsvlvania riglw. JK~ Thus if. The renvoi problem arises when forum choice of law directs the court to follow foreign choice-of-la\v rules and those foreign rules in turn direct adherence to forum choice of law. The renvoi problem occurs. but ignoring the foreign choice-of-Iaw rules is impossible to justify. too. Lhe New YorK cuun shoukl ask whether a Pennsylvania court would decide thai Pennsylvania law reaches the transaClion.-) In ascertaining t. This issue. looks to rules of priority to determine which rights shall prevail.ate's law creates rights is a question of that slalc's la\\' and IhaL stale's law alone. but it has significant consequences. Indeed. Pennsylvania follows a territorialist approach. i. . The Problem of Mutual Deference The second problem. Lhe New York court. should also. It does not refer to choiceSee sUjJl"(/ text.es i'\4-96. it should be clear. I i'\4 I am not. Heeding both states' laws produces the infinite regress of renvoi. for example. Recognizing that each state's law is authoritative as to its ovm scope (and not as to the scope of the other state's law) is the only workable solution. J84 2. look to Pennsylvania law for a localizing rule. accompanying not.. Mutual deference with respect to rules of priorit·y creates no such circle. arises \. when forum and foreign law differ as to their scopes-each state's choice-of-Iaw rules assert that rights are created by the law of the other state and not its own.hen a forum.RESOLVINC RENVOI disregard restrictions imposed by that state's court of last resort.. the mutual deference creates a situation that resem bles renvoi. 182 . More generally. 183 The point may seem simple. can be handled with no fear of paradox. a New York court attempting to determine whether Pennsylvania law grants rights with respect to a transaction occurring in New York must conclude that no Pennsylvania rights exist. J am arguing tIlt' opposite: wheLher a particular st. arguing that foreign choice of law rules should he heeded to Lhe exLent thaI they assert that some other state's law applies. it is also mandated by fundamental postulates of our post-Erie jurisprudence. Perhaps not coincidentally. the transaction occurs. J i'\:. are authoritative on [he question of Ivhet.

but there is no paradox yet. its resolution of conflicts between its law and the laws of other states commands no such deference. The solution is the same in both cases. given a particular constellation of facts. Thus while one state's determination as to the scope of its law must-as a question of that state's law-be respected in foreign courts. supm note 13.II->:) Instead. (We are approaching a renvoi-type circle here."). we could imagine a rule of priority stating that local rights shall yield. It is not an inherent part of the analysis under the two-step model. 186 I reached the same conclusion in Roosevelt. Roosevelt. neither rules of scope nor rules of priority. As long as the local rule of priority does not instruct the court to follow the foreign rule of priority."). See generally Roosevelt. i. regardless of contrary foreign rules of priority. in which the forum's rule of priority simply provides that local rights shall yield. at 1029 ("No state's rule has a privileged status from this multilateral perspective. because it would privilege local rights in a case featuring particular contacts. state courts must follow the direction of their legislature or court of last resort.s6 3. . at 2533-34.. but because it resembles renvoi. supm note 3. 185 See Kramer. Kramer suggests that in cases of mutual deference courts should reconsider the matter and feel free to enforce rights under their own law if that would make both states better off. In the simple case. See Kramer. Understanding Assimilation One puzzle remains. supm note 13. however. Matters can be complicated. That is. at 2533 ("The principle that the states are coequal sovereigns leads to no other conclusion.N () r I{ c: j) A i\1 E I. The problem of mutual deference is not different in kind from the conflict created when each state's rule of priority provides that its own rights should prevail..e. and again in a case in which those contacts were switched (what I have called a "mirrorimage" case). at 2528-29 (discussing full faith and credit and mirror image cases). This amounts to the sort of discrimination against foreign law that the Full Faith and Credit Clause prohibits.) I believe that such a rule would be constitutionally doubtful. at 1032-34. when it adopts what I have referred to as a rule of assimilation.\ \V REV [ E W of-law rules. and it follows quite simply from the recognition that while each state is authoritative with respect to the scope of its own law. it merits a brief discussion. supm note 3. . the question of what happens when state laws conflict is not a question on which any state can claim the last word. It arises when the forum chooses to incorporate part of the law of another state. I do not see how a court can claim the power to disregard this provision of its own law. unless the foreign rule of priority directs that foreign rights yield. they must follow their own rules of priority and enforce either local or foreign rights as those rules dictate. there is no danger of infinite regress-and a rule of priority that did so provide would be an example of legislative perversity. I am skeptical of such freedom. supra note 13.

IR7 For Currie's recognition of the difference between assimilation and choice of law. 187 IV. it allows us to describe these approaches in a manner in which the renvoi problem does not arise and hence to gain a deeper understanding of the nature of the problem. there is no need to consider limitations Massachusetts might place on the scope of its rights. CONVENTIONALISM RECONSIDERED A. Connecticut law might nonetheless provide that for certain incidents of marriage-for example. as \ve shall see. as Currie recognized. In particular. rather than Connecticut law. I have not. Suppose. an assertion I will develop more fully later. and indeed the value of the two-step model is not that it is a distinctive approach to conflicts. Consequently. then. The first step towards that understanding is to depict the conventional approaches within the model. and by using appropriate rules. But the point of this Article is not to devise an approach that avoids renvoi. The point is to identify the fundamental error within the conventional perspective. sulnn note 98. rather than a substantive. Given such specification. specified any of the rules of scope or rules of priority that are to be used. Connecticut is not enforcing Massachusetts rights. That should go some ways towards demonstrating that the problem is an artifact of the conventional conflicts perspective. any of the conventional approaches can be described within the two-step model. the model allows us to examine the conventional approaches in a more analytically tractable way. It is employing Massachusetts law in a definitional. . and in such cases foreign choice-of-law rules can be ignored. and to this end the tvvo-step model is most useful as an analytical tool. the right to make decisions about medical care for an incompetent spouse-it will look to domiciliary law. at ()9-7~. see CLRRIE. 178. Specifying those rules produces a partiClllar conflicts approach. that Connecticut refuses to recognize same-sex marriages solemnized in other states. Conventional Approaches Within the Two-Step }\tIodel It is possible. to conceptualize the choice-of-law task in a manner that does not raise the problem of renvoi. to determine who is a "spouse" entitled to make such decisions. In according such rights to one member of a Massachusetts same-sex couple.RESOLVING RENVOI Assimilation occurs whenever a state decides to build upon the legal relations created by another. capacity-to identify rights-bearers rather than to determine their rights. for instance. after all.

as [ have suggested already and discuss further below. I ')() Interest analysis can th us be I HH Spp I Ik.") . 190 Currie did not.12. Because this method of determining scope does not necessarily allocate legislative jurisdiction to a single state. of course."). which he did via the principle that in case of a true conflict the forum should apply its own law. If two states are both interested in a transaction. conflicts arise and cannot be ignored. supra note 3. supra note 98. and only thosc cvents. then. at 1039 ("By definition. supra note 30. The Territorial Approach The tcrritorial approach holds that a state's law governs all events.. consider this rule of priority a solution. conflicts can arise even between territorialist courts. rxx That is. For this reason. for each court might. the territorial approach did not need rules of priority. it might be more accurate to treat territorialism as including an implicit rule of priority favoring whatever law is deemed territorially appropriate.notes 199-200. interest analysis. at 46 ("By its very nature law must apply to everything and must cxclusively apply to everything within the boundary of its jurisdiction. there is no possibility for confEct between I. Territorialism resolves both these problems in essentially the same way.i':()TRE j). If forum rules of scope are imposed on foreign law. is easy to describe within the two-step model: it has a territorial rule of scope and no rules of priority. believe that its state wielded territorial authority. infra text accompanying. the law is construed to extend to that transaction. a conflict exists. of course.II· RFYIEW 1. and if the laws differ in substance. See Kramer.\. no conflict can arise. and applying localizing rules to determine a single location for events extended across borders. Interest Analysis Intercst analysis uses the concept of an interest as a means of delimiting the scope of state law. he thought that true conflicts were at bottom insoluble. '. both laws are construed to attach legal consequences. illegitimate.\LF. by allowing forum law to determine the scope of foreign law. With such a powerful rule of scope. it holds that state laws are territorial in scope. See su/na text accompanying notes 140-48. Currie was thus forced to create a rule of priority..'8Y 2.l\vs-one and only one law will attach legal consequences to a transaction. 189 A reliance on rules of scope alone might seem inadequate to handle the situation in which tcrritorialism encounters a different choice-oflaw approach. Territorialism. In fact. that OCCLlr within the state. Given this premise. at 169 (" [The . confronts the possibility of conflict. See CURRIE.\lf: r. This move is. the direction to apply [a state's] law means both that [that state] confers a right (the first step) and that it enforces this right notwithstanding the concurrent applicability of another state's law (the second step). one might think.. for reasons of characterization ur substantive law. as the territorial approach did not. and indeed it does not contain them. Then. ::i 4. If it would further a law's purposes to bring a transaction within its scope.

3. this means that the Second Restatement contains no rules of scope. we are better positioned to see the similarities between what might otherwise seem radically different approaches and differences between ones that might seem similar. are quite similar. ~?) L\\\ & C< ):"11-\11'. 4. it is simply the best that is available.lilllnPI!f'd Fhird . Testing the Redescription The following table summarizes the results of the preceding analysis: Territorialism Rule of Scope Rule of Priority Terri toriali ty None Interest Analysis Existence of In terest Forum Preference Second Restatement None Most Significal1l Relationship Describing the leading approaches to choice of law in terms of rules of scope and rules of priority accomplishes several goals. all the work is done by the diffuse and comprehensive rule of priority contained in section six. for instance. each relies primarily on rules of scope and has at best a rudimentary conflicL5 rule.. Currie himself later oJlered mOlt' reflnclllent. did not conceive of interest analysis as a method of resolving conflicts but rather a means to identify cases in which no confliCi resort to forum law] is not an ideal. T!I. Any state is eligible to com.' IJi.. PROBS. (Currie. the Restatement completes the picture by providing an example of a system that works solely via rules of priority. Currie's version of interest analysis and the territorial approach.rithin the same analytical framework. It is because of the absence of rules of scope that I have included the Second Restatement despite its failure to engage renvoi in a theoretical manner. . I'v1odcl'll t!leor\' has generally rejected Currie's forum preference and developed a number of more sophisticated approaches to true conflicts. From the perspective of the two-step model.pete for the title of most significantly related."). notably. he suggested that after (!<:tecting a true conllic!' the forum should attempt a "Illuderate and restrained" interpretation of tlw two states' policies in an effort 10 eliminate the conflic!' Sfl' Brainerd CttlTie. Consequently.'ilall'.200 5] RESOLVING REN\'OI redescribed within the two-step model as using state interests to determine scope and forum preference as a rule of priority. By viewing them . Indeed. 7!'i4. The Second Restatement The Second Restatement differs starkly from both the territorial approach and interest analysis in that it does not contain any means of limiting the class of states whose la"vs might potentially extend to a transaction. 7!'i7 (JCH):~).

The distinction is vital because questions of scope and questions of priority are very different in terms of the issues over which a particular state may claim final authority. :-. Consequently. suggesting that the First Restatement contemplated overlapping legislative jurisdiction and that in fact territorialism should be understood as a rule of priority. at 107 (distinguishing between false conflicts.. do not produce the renvoi problem. The territorial approach presents the easiest case. and this difference is essential to understanding the renvoi problem. Id. 193 See 1 BEALE. at 46.3d 842. There is little doubt that territorialists conceived of territorialism as a rule of scope. see also Cheatham. in some hands. The priority given to its law in conflicts with the law of other states is not. 5upm note 30.NUTRE !lAME LAW REViEW l V( H . Beale was emphatic that territorial boundaries constitute limits to legislative jurisdiction. If I have erred in my characterizations of the theories. Additionally.) l<Jl The Second Restatement. The value of the redescription. As already noted. but only one law can so apply.12. Spinozzi v. 192 The Second Restatement. If two laws were present at the same time and in the same place upon the same subject we should also have a condition of anarchy. at 383.():~) existed. 5upm note 98.. [N]ot only must the law extend over the whole territory subject to it and apply to every act done there. includes interest analysis as a factor and territorialist principles in its presumptions. and more important for this Article. in sharp contrast. at 1042 & n. See RESTATEMENT (SEeo D) OF CONFLICTS OF LAws § 6 (1971). 174 F. uncompromising in its ecumenicalism. though spectrally thinned to presumptions"). 192 All its energies are expended on resolving conflicts via its rule of priority. The goal of this section is to demonstrate that the approaches considered. § 4. By its very nature law must apply to everything and must exclusively apply to everything within the boundary of its jurisdiction. supm note 32. the scope of a state's law is a matter very much within the authority of that state's courts and legislature. 193 and courts of the territorialist era issued equally 191 See CURRIE. it may resemble scope analysis. supm note 3. See Kramer. which "present no real conflicts problem" and true conflicts. or perhaps puzzlingly.197. properly understood. however. depends crucially (if unsurprisingly) on its accuracy. then the demonstration is of little import. 844 (7th CiL 1999) (noting that "the simple old rules can be glimpsed through modernity's fog. which" cannot be solved by any science or method of conflict of laws" and should therefore be decided under forum law). It is thus worth pausing to consider whether the two-step models set out above are indeed true to the approaches they represent. ITT Sheraton Corp. makes no attempt to segregate out cases in which the litigated transaction falls outside the scope of one state's law. Interestingly. redescription allows us to identify and distinguish rules of scope and rules of priority within each approach. I do not think Beale's treatise sup- . Kramer disagrees.

at Ill-ln. § 65. in some circumstances. ] 892). Currie believed. cases litigated in a disinterested forum. are the unprovided-for case and. But his reasoning here appears to be that each state is regulating based on the acts or consequences within its borders-that is.t one of the series of events which took place in that state the basis of a right" (emphasis added)). 803. the section Kramer refers to argues that different states could impose sanctions. Currie understood the existence of an interest as an indication that the state's law did attach legal consequences to the ports this assertion.] . impose liability for what would be an incomplete tort at common law. supra note 98.. 194 Confidence about the characterization of interest analysis is somewhat harder to come by. The reasoning is not especially satisfying. See C\:RRIF. ] 95 The exceptions. the conclusion that a lack of interest indicates that the transaction falls outside the scope of the state's law. a question Beale did not attempt to answer.b. See] BEALE. 11 So. seems to be applying the same principle. See CURRIE. ] 94 See. G. The First Restatement. at 315 (stating that with respect to a series of events crossing state lines. 195 This is consistent with. su. v. There are. First. A court should never. 196 Conversely. This does not suggest that states can regulate aClS outside their borders or that legislative jurisdiction can overlap.R. indeed equivalent to. I believe Kramer is correct in arguing that Currie erred in his analysis of the unprovided-for case and that such cases should be understood as ones in which neither state's law granL5 the plaintiff a right to recover. Carroll.RESOLVING RENVOI forceful pronouncements. one might wonder why under this theory the state in which the act is performed can do more than treat it as an attempt. he grants that states can. 807 (Ala. Part rv. though Jess clearly. at ] 52-56. and I would be content to demonstrate that the model I have arrived at is a plausible method of operationalizing Currie's basic insights. This Article is not an exercise in Currie hermeneutics.g. sUjJI"f/ Ilote 9R. 196 Currie's language suggests as much: in order to assess the results of interest analysis ill his analysis of married women's contracts. the redescription given captures Currie's results. by statute. and the state in which the consequence occurs do more than treat it as uncaused. Co. the question of which law "applies" is a misleading distraction. As discussed more fully infra. . adequate reasons to think so. In such circumstances. for a nucleus of acts and consequences crossing state lines. "either of these states has jurisdiction to make tha. apply the law of an uninterested state. There are doubtless those who would deny that the determination that a state is interested is tantamount to a conclusion that a transaction falls within the scope of its relevant law.pra note 30. See RESTATEMENT OF CONFLICT OF LAWS § 65 (] 934) (extending legislative jurisdiction to states "in which any event in the series of act and consequences occurs").2. It is because such legislation would create causes of action unknown to the common law that Beale in this section sharply distinguished statutory from common law. he rephrased them in the language of explicit conflict-oflaws provisions setting out tilt' scope of \'arious slate laws. Ala. the appropriate resolution is simply dismissal or the suit. in Currie's formulation of the theory. e. I believe. by statute.B.S.

1~0{) :\(JTRF. not onlv does the redescription produce the same results reached by Currie. 19R The rule of priority I have selected. but to foreign law as well." It consists in the substitution of forum rules of scope for foreign rules. The centerpiece section 6 directs courts to consider. B.pproaches Reconsidered All three of these choice-of-law systems suffer from a common defect. JrI. States will thus disagree with others about the scope of their respective laws. But courts applying the system apply the rule of scope not only to local law. () .VII·. Renvoi and the Conventional A. at 184. for some foreign states will have adopted different systems. Second. as already noted. as in the Second Restatement.\\'· RF. however. it seems justified to treat it as essentially a priority-based approach.. Currie repeatedly characterized his method as akin to conventional statutory construction. But since the Restatement does not indicate how this exclusion is to be performed. it is for this reason that thl' presence of two interests backing su!>st<tn tively different rules of law produced a conflict. As for the Second Restatement. it fits with his writings. its result will be-as in the marginal domestic case-a conclusion as to the scope of the interpreted law.\ IF L .) A jurisdiction that adopts such a system adopts its associated rule of scope with respect to its own law. each state will use its mvn rules of scope to ascertain 197 198 5jpp id. the policies of the forum and other interested states. a description that could be taken to suggest that uninterested states have (somehow) been excluded from the analysis at an earlier stage. and under the conventional approach. and its use may be justified on the grounds of simplicity. Its content is not especially important for the analysis that follows. the open texture that makes it difficult to be clearly correct or incorrect in application also poses some problems for characterization.\'· trCll1s<lClion. This produces a conflict (though not one that the conventional approach acknowledges). 364-65. . with different rules of scope.l~)7 If the choice-of~law methodology is essentially interpretation of the internal laws at issue. inter alia. simply amounts to a permissive rule: no states are to be excluded as a matter of scope analysis. (The lack of a rule. represents Currie's earlier thinking and has not been followed by most of the jurisdictions purporting to apply interest analysis. at 184-85. The defect is what I will call "scope imperialism... Each of the systems described above has a particular rule of scope.

I ~9 A slightlv different.vs interest analysis on the grounds that a tort occurred within that state. it al1mvs us to see hmv renvoi should be resolved within them. and they will "recognize" such rights when foreign courts would not. And ultimately. when a territorialist court applies the law of a state that follO\.llist !"orum dcciding that foreign law nonetheless "applies" on the basis o!" its ()\vn rules about tilt' timc ~1I1d place o!" . (Such cases will arise. and e\"(::n more dramatic.~20() The point of the redescription is to show that the choice-of-Ia\v rules of the conventional approaches do amount in part to rules of scope. form of impt'rialislll arises with respect to characterization or differt'nces in internal Jaw. disregard of foreign choice-of-law rules is impermissible and must be renounced. it is the practice that underlies the appeal to objectivity. its imperialism is positive only. But the renunciation is in fact a victory. They will refuse to recognize the existence of foreign rights in cases in which foreign courts would. for instance. Abandoning imperialist designs does not weaken the systems. it may be that no contrdcl has b('C'1I formed \\'ithin its borders as a matler of its internal law.) Because the Second Restatement places no limits on scope. it will give us a clearer picture of the nature of the problem. State courts and legislatures are authoritative \vith respect to the scope of their own law.\CCeplancc has pri\'ileged provisions of' its slibslalllin' contLiCt Ltw O\'er those o!" lhe foreign state. 20() ')1'1'\Ujirt! [cxt atTomp~ll1Ving notes 1:iq-·IH. instead. despite the fact that courts of that state would find no interest. it \. for instance. Once this is granted.. it follows that even under the conventional approaches. And as discussed at length in the context of that move.) Scope imperialism should be familiar. regardless of whether the tort occurred outside the state. If a fur<:ign slatt' defines acceptance ditlerently from the forum (recall the mailbox rule example discussed :>ujrm nott's ~0-2H and accompanving tcxt).ilJ find foreign rights that do not exist according to foreign courts. might find that a territorialist state had the most significant relationship to an issue in a tort claim arising out of state. it is untenable.RESOLVING RENVOI 1881 not only the limits of its own law. and it would at least consider that state in making its most significant relationship determination. Similarly. most interest analysts would apply the law of a territorialist state to a tort claim if they found it interested. A territori. I !l~ Territorialism and interest analysis are imperialist in what could be termed both negative and positive senses. but the limits of the laws of other states as well. (A Second Restatement court. ..

But having redescribed the territorial approach within the tvvo-step model. 38. In the case posited. the conclusion is not novel.:-'.. supra note 127. without a regard to which it would not be really that law which was applied" and described renvoi as a situation in which "neither . and vice versa. A territorialist court's conclusion that rights vest under foreign law is simple scope imperialism. So phrased. Over a century ago. supra note 2. Consider. lawgiver has claimed authority. which leads into the renvoi problem. The hypothetical tort case falls within the scope of neither state's law. at ii. necessarily including the limits which it sets to its own application. 1_ Renvoi Within Systems a_ The Territorial Approach Renvoi within the territorial approach occurs when each state's law provides that rights vest not within its territory but within the territory of the other state. In the conventional conflicts vocabulary. at 28. we no longer confront a step at which we are instructed to "apply" some state's law. Jd. See BATE. The courts of State A will thus rule that State B law applies.OTRE DAME L. Thus the State A determination that no rights exist under A law binds the State B court and vice versa. . Bate dates Westlake's acceptance of renvoi to his 1900 contribution to the discussions of the Institute on International Law."201 201 BENTWICH. with each finding that the crucial last act necessary to the vesting of a right occurs in the other state. The first edition of the treatise was published in 1858. We are simply asking whether rights exist and then resolving any conflicts that arise. a tort suit in which the internal laws of the tvvo states differ as to the elements of the cause of action. each state's courts will conclude that no rights exist under their own law. Each state's courts are authoritative as to the scope of their own law and powerless as to the scope of other states' laws. and if the foreign court disagrees. at 57. but that rights do exist under the law of the other state.-\W RE\·[!':\\. for example. John Westlake asserted that "a rule referring to a foreign law should be understood as referring to the whole of that law. but the two-step model has transformed it into one that can be resolved. This is again a difference of opinion. this amounts to a determination that neither state's law applies. its view must prevail. What are we to make of this difference of opinion? The conventional understanding takes the determination that the last act occurs in another state as a direction to apply that state's law..

at 290-92 (pointing out similarities in analysis of conflict5 cases and domestic cases).. the case cannot be decided. e. Westlake's foreshadowing of Currie goes further. The clairvoyance earned him a scolding from Lorenzen. his argument was driven by the insight that there is no sharp distinction between choice of law and internal law. 202 His analysis differs from mine in that he remained \vithin the conventional understanding.. element of the authorit·y claimed by the lawgiver" and describing such rules as "the limits which [the law] sets to its own application"). supra note 30. 203 From the conventional perspective. Some law must therefore be applied. at :130 ("There is here. who pronounced the "assertion that the legislator in adopting a rule of internal law in reality defined it5 operation in space by the corresponding rule of Private International Law . As the preceding note indicates.. being under an obligation to render a decision in the case." 1 BEALE.. 203 See id. vVestlake fIlled the gap with forum law. at 203. As rhe following seerion will discuss in more detail. 204 The idea that the choice-of~law analysis must end in the identification of a law that applies was apparently unquestioned in the territorialist era. From this perspective. 204 202 See BENTWICH.12. sujJra note 2. scholars believed.g. . has no recourse except that of applying the lex /011"). Westlake in fact anticipated a central theme of the analysis of Brilmayer and Kramer. S 4. it may indeed make some sense to suppose that one cannot rest with the conclusion that a transaction falls outside the scope of both states' laws. and which is bridged over by applying the law of the fOfllIn as surh: otherwise no decision could be reached in the case. which must be bridged over. sUjJm note 98.. . Westlake. Schreiber. at 202 (describing the conclusion of Westlake and von Bar that "the judge of the forum. Beale likewise warned that" [a] hiatus or vacuum in the law would mean anarchy."). von Bar. and Lorenzen all believed that if the analysis did not so terminate. at 29 (characterizing renvoi as a situation in which "the conflict of rules of private international law has had for its consequence that they lead to no result"). at 183-84 (describing resolution of multistate cases as similar to that of "marginal domestic situations"). supm note 127. "no state's law" is not an answer but a gap in the theory. precisely the claim that Currie would later make the centerpiece of his interest analysis. an absurdity. at 29. therefore. supm note 2. forum law is the only recourse. Kramer.'-lel' a[w. supra note J08. this precise pattern of scholarsh ip repeated itself Illany years later in the con text of interest analysis. and if no other presents itself. Lorenzen. on which the task of a court engaged in choice of law is to determine which state's law applies. and if no law is selected. at 4:1. and just as Brainerd Currie would fIfty-odd years later." Lorenzen. In his assertion that choice-of-law rules place limit5 on the scope of internal law.RESOLVING RENVOI Westlake's premise for this argument was the same one for which I have argued in this Article: that choice-of-law rules amount to substantive limits on the scope of a state's law. supm note 4. 38 (criticizing those who would ignore foreign choice-of-Iaw rules as neglecting "the necessary . a legal vacuum or gap. See CURRIE. application of forum law was the only possible response . The aim of the conventional choice-of-law analysis is to select a law according to which the case will be decided.

It simply means that the plaintiff has no rights to invoke. the determination of interest is in fact a conclusion about the scope of state law. This result will surely seem unfortunate. See Cheatham. as we have already seen. But if. suffered a tort according to the internal law of each state. and it makes little sense that he cannot recover simply because the events constituting the tort straddle state lines. and consequences.~os It does not suggest that states do. Indeed. supra note 32. within interest analysis. at 383. 206 The tran~jurisdictional tort used as an example in the previolls section will not necessarily produce such a case. arises when each state court determines that its state is not interested but the other state is. supra note 30. each state legislature could assert jurisdiction on the basis of the occurrences within its border. after all. this comes perilously close to recognizing overlapping legislative jurisdiction. supra note 3. Renvoi.. A. he suggested that in cases where the elements of a tort occurred on different sides of a state line. while the B court's analysis indicates the reverse.. and Cheatham (and later Kramer) both read Beale to have done so. describing the case within the two-step model avoids these difficulties.197. The easiest way to think about a renvoi between two states following interest analysis is simply to suppose that. I venture the obselvation that the distinction is sufficiently implausible that overlooking it might be the most charitable treatment. discussed supra note 193. But what this apparent failure of the system suggests is simply that rigid territorialism is not a very sensible rule of scope. b. it is again a conclusion each 205 Beale seemed at least partially aware of the problem. I believe they miss a distinction Beale attempted to maintain between regulating a single act and regulating a series of act'. or even should.2. at 1042 & n.\IE 1.\LE.~()() Because conventional interest analysis tends to privilege the forum's assessment of sister state interests over the assessments of the courts of that state. for whatever reason. it will conclude that only one state (the foreign state) is interested. the State 1\ court's analysis indicates that State A is not interested but State B is. "either of these states has jurisdiction to make that one of the series of events which took place in that state the basis of a right"). As a practical matter. Knmer. See 1 BE. Interest Analysis Renvoi within interest analysis is controversial. The plaintiff has. That the tort does not fall within the scope of either state's law does not mean that the case cannot be decided. Currie believed that his approach eliminated the problem. have the power to disregard sister state determinations that sister state law does not reach a particular transaction. as I have argued.NOIRE IJ.·\. conventional interest analysis would view renvoi as a false conflict. at 315 (stating that with respect to a series of events crossing state lines. and his suit should be dismissed for failure to state a claim.:\\\ RLVrE\\ Again. the easiest sort of case to resolve. In their defense. . § 65.

I\. sUjJra note 2. Renvoi thus should be analyzed like any other unprovided-for case. David Cavers commented that such mULUal deference seemed to create "a gap in the law-a case fallen bet\veen the stools of two legal systems" and suggested that it would cause problems for interest analysis. however. Neumeier v. neither state's law grants the plaintiff rights. Conversely.g. It is frequently the case that no la. RE\'.'iN'. sl. such a case might be described as one that falls into the gap bet\. I'. 209 The argument can be rebutted in this case. See CWERS. 1 HOFSTRJ\ L. Aaron D. for Lan)' Kramer subsequently took up the question and argued that the correct resolution of a truly unprovided-for case is the dismissal described in the previous section. From the conventional perspective. ~1 () . And like Westlake. 207 Currie found the unprovided-for case troubling.g. Renvoi requires in addition that each state conclude the other is interested. . the two-step model resolves the problem. But as the text discusses. this conclusion is beyond the power of state courts and can be disregarded. Currie suggested that in an unprovided-for case the forum should apply its own law. each state's assessment that it is not interested must be accepted by the other. Within the territorial system.ing effect of the brilliant Currie writing [prevented his discussion of such cases] from heing sllbjectecl to the strongesl ridicule"). at 105-06.IjJrU note 124. '1Ilml note 1()9. like Westlake before him.'1. I think. a name exists already: renvoi is simply a special instance of the unprovided-for case.. . 104.RESOLVING RE VOl 188 5 state has the authority to make with respect to its own law and no other. 2lO This is. apparently on the theory that othervvise it would be impossible to reach a decision. Kuehner: \VheJP!\rl' the Emperor's Clothes?. at 1071. each state's assessment of the other's interest must be disregarded as scope imperialism. an undeniable advance. however. dt 11 ~ ("To be sure.veen jurisdictions. See. vVithin interest analysis. Other reactions were stronger. 20 f) Such perfect duplication of the preceding generation's theoretical moves gives support to those who argue that conflicts scholarship moves only in circles. the reaction is unclerstandable: if the point of choice of law is to identif)1 the law that applies. .-\' gives the plain207 I say "special instance" because the unprovided-for case will arise whenever neither state is interested. Twerski. scholar cunsidering that the three possibk choice-of~LI\\' approaches have been known since rhe days or the statlltists··). the only failure is the belief that some law Illust "apply... . e.107-08 (1973) (arguing that "interest analysis met its Waterloo with the advent of the unprovided-for case" and "[o]nly the almost mesmCl"il. the text explains. Thus.Juenger. the unprovided-for case looks like a failure. he was unwilling to accept the conclusion that in some cases neither state's law would govern the transaction. The correct conclusion is that neither state is interested. 208 This "solution" has an undeniable odor of ad-hocer)'.. 1'1' Krana'r. as far as noveltv is concerned. one can hardl\' expect il from anv conflicL<." 209 . . and critics of interest analysis seized on the unprovided-for case as indicative of serious problems with the theory.

I think that the conclusion follows from straightforward positivism-a state's rules of priority are binding on that state's courts-and also serves the constitutional purpose of preventing states from discriminating against foreign law. but each is willing to vield to the law of the other state." In the first sense. Each state's law. and hence not a question on which one state can bind the courts of another. See Roosevelt. The unprovided-for case (and the renvoi. It is of no moment what law is "applied" in the first sense. the problem here is that describing the choice-of-Iaw question as "What law applies?" has led scholars to conflate two different senses in which X law might "apply.-)O:. if we employ the same methodology used to resolve domestic cases-the possibility that no law "applies" is untroubling. . It is forum rules of priority that bind the forum. it is the problem of mutual deference. in obedience to its own rules of priority.'J tiff a right to recover. we mean that the X law attaches legal consequences to the transaction-it gives one or the other party rights. The inability of Beale. and the concomitant belief that some law must apply. Consequently. each state should decide the case under the internal law of the other state. I have said. In the second. Because the Second Restatement works via rules of priority rather than rules of scope. as a special instance) arises when neither law attaches legal consequences. according to the courts of that state. as discussed supra note 186. This problem should also be familiar. just as it is of no moment whether a court "applies" one of two statutes neither of which gives a right to recover. and the conclusion neither prodLlces anarchy nor prevents decision.2l2 I 211 Conceptually.'\ . Which of two state laws should yield when they conflict is not a matter of setting the scope of state law. at 2533-34. . and they must be followed. The correct conclusion here is simply that the plaintiff cannot recover. and Currie to recognize this commonplace fact stems from their shared premise that the purpose of choice of law is to identify the law that applies to a transaction. which has been raised and resolved earlier. The Second Restatement vVithin the Second Restatement. indeed. the problem takes a somewhat different form within the two-step model.:!ll But if we consider the choice-of-Iaw analysis as simply a process of first ascertaining the parties' rights and then resolving any conflicts between them-that is to say.NOT R Ie: U . Westlake. 212 Kramer disagrees. we mean that the court 'will decide the case according to X law. entirely banal. renvoi occurs when each state's court believes that the other state has a more significant relationship. c. but foreign rules of priority need not be.\l L L. The common mistake of Currie and Beale-and even of Westlake-is to think that a conclusion that no law "applies" in the second sense has some consequence for a court's ability to decide the case. brings the transaction within its scope.\ W R Ie: V r Ie: W 1"oJ. Foreign rules of scope must be heeded. supra note 13.

RESOLVING RU'I\101 \i\lhat this redescription has shown is that renvoi does not. Renvoi Across Systems Within the two-step model. renvoi arises only when neither state's law grants rights. How is this problem to be resolved? Once again. A rule of priority directing that local rights should yield to foreign rights does not tell the court to "apply" foreign law. The whole point of a choice-of-Iaw system. each state's determination as to the scope of its law should be heeded. I have said. are about the existence or nonexistence of rights.RESOLVING RENVOI 2. V. is to determine when some other state's Ia v. by its terms. And it has shown something more. and its determination as to the scope of the other state's law should be disregarded.'hether foreign law does as well. 'When territorialism or interest analysis confronts the Second Restatement. For courts that follow interest analysis or the territorial approach. the problem is again slightly more complex. That they assume this is unsurprising. bur its aim is nor restricted to rhis. Again. A renvoi between an interest analysis and a territorialist court is again simply a situation in which no law gives the plaintiff a right to recover.. include the transaction within its scope.. the idea is the basic starting point for conventional choice-of-Iawanalysis. after all. or need not. In such a case. Thus the case should be decided in accordance with the law of the Second Restatement state. The law of the Second Restatement state does. but . applies. That is. The reason that the renvoi problem arises is that the conventional approaches assume that the scope of foreign law can be determined by the forum's choice-of-Iaw rules. the distinction bet\-veen rules of scope and rules of priority shows the way-though this time by a slightly different path. It includes . As Lorenzen put it: The object of rhe science of the Private International Law of a particular country is to fix the limits of the application of the territorial law of Stich country. exist either \vithin or between any of the conventional approaches to choice of law.. but it prescribes that rights created by its law should yield to contrary rights created by foreign law. the law of the territorialist or interest analysis state does not. the renvoi problem is no more difficult across systems than within them. they assume that forum law can determine not merely whether forum law grants rights to the parties. while rules of priority deal with the question of which rights should be given precedence. the local rights should be given effect. and if no foreign rights exist. Rules of scope.

we could say that the problem lies in framing the choice-of-Iaw question in terms of what law "applies" in the first place. L. because there remains the considerable task of crafting rules of scope and priority. 2lh There are. at 2453. it is an unconstitutional usurpation of authority. what I recommend is in a certain sense the death of choice of law. the problem inherent in those decisions rejecting renvoi.. e. Real Conflicts.g. presumably. hiding conflicts behind the veil of choice. it simply causes them to reappear in different form. 214 . 1403. 217 See id. supra note 2. But hiding the difficulties of conflicts does not make them go away. it is unhelpful. REv. See. see supra note 211. a denial of the basic proposition that a state's courts have the last word on the meaning of their own law. it produces the renvoi problem and others. First.\\11': L. For an explanation of the problems this formulation has caused for the analysis of renvoi and the unprovided-for case. The rhetoric of choice-the suggestion that forum la-vv can determine the scope of foreign law-overstates the forum's ability to disregard foreign determinations that foreign law does reach a transaction. what I have elsewhere called the rhetoric of choice. L. 1407 (1996) (stating that "conf1icts of law is dead-killed by a realism intended to save it"). See. it overstates the forum's ability to disregard foreign determinations that foreign law does not reach a transaction. at 2465. at 204. 70 B. Thus. 2\ () Overcoming a problem by calling for the elimination of the field of law designed to solve 21. as argued in this Article. supra note 13. 216 See Roosevelt.\\\ REVIFW also the determination of the foreign law applicable in those cases in which the lex jfni does not contra!':' I '> But the idea that forum law can decide this second issue.. Joseph William Singer. 218 Only a certain sense. REv. those who have already read the field its last rites. The failure of modern choice-oflaw theory to address existing conflicts is a theme of much ofJoseph Singer's work. it demonstrates that choiceof-law rules cannot resolve the very question that called them into being. though his analysis differs from mine in significant respect'>. good reasons to do so. 731 (1990). L. 48 STAN.~(JTRI' 1l. Conflicts will not advance until it frees itself from the vocabulary that presses this idea on us.e. 214 And second. Lawrence Lessig.:ns This will surely strike some as shocking. . is mistaken in two ways. 215 At a higher level of generality. 21 :.:) Lorenzen. 217 Additionally.'-iee supra text accompanying notes 139-48.Joseph William Singer. The Zones ofCybenp(l(. Chief among them is the abandonment of the fundamental aspiration of the field of conflict of laws. 219 Though not. e.U. I have suggested.g. 69 B. There are also what might seem to be costs. REV. 1 (1989).U. A Pragmatic G1Lide to Conflicts. If what I have said is correct. as I have argued.

into constitutional law. A lJifensp of Interest Allalysis in 11/.1' Con/lirt oj Laws and the Usp oj that A nal)'sis in Prod1. 46 ChilO ST. Modern choice-of·law theory no longer sets out to identify a single state with authority to regulate. Currie wrote that "the system itself is at fault.aws. L. though the determination might have seemed possible in Beale's day. In particular.l Liability Casps. where authoritative rules regarding the treallnent of other countries' law are bard to find. a court could confidently identify the last act necessary to the vesting of rights. understood as a body of forum law that can tell a court \vhich foreign law to apply. The most obvious reason is that the conventional understanding made good sense in Joseph Beale's day. But it is a powerful one. in response to the anticipated criticism that "it is no great trick to dispose of the characteristic problems of a system by destroying the system iLself. at 1005." fri. COOK. where SItCh qucstions are gOHTned hy the Const itllti (>n. It clot's not make sense in tbe Jllodt-rn Uniwd States. . it is why it has not yet occurred. the lesson of Arie is that it never was. 222 Russell Weintraub. at 43. for example. has argued that "the conflict of laws should join the mainstream of legal reasoning. ~~~ The real question is not whether this reconciliation is desirable. even while discarding his methodology. vVhat con220 CL'RRIE. 115 (1964). SlljJra note 70." Russell. and strong spirits leave hangovers in their \vake. at 183-84. 223 II also makes some sense in the international context. But it is hardly unprecedented.lrl. is thal ("boice-of~law analysis is not different in kind from tbe ordinary process of deciding whether a state's law applies to a marginal domestic case.J. suln-a note 3. Kramer.J. 493. Forum law cannot do this. Indeed. Currie rnade this observation. the idea that conflicts should return from its self-imposed exile and rejoin the body of ordinary legal analysis is a staple of the literature. it is more like prescribing the guillotine as a headache remedy. And Currie's basic insighl. it could indeed decide which state's law applied to a transaction. but it has retained much of Beale's vocabulary and conceptual framework. as already noted. sulHa note 98. the body of law which we formerly knew as Conjlirt of I_aws disajJIJean! It fades in to substantive low and. and given territorialism's status as part of the nature of law. 112 RFCUEJL DES COURS 91. on issues involving constitutionality.RESOLVING RENVOI 188 9 it is not the conventional understanding of a theoretical advance. is a phantasm.~~n Armed with the general common law. nJ In fact. \Nalter Wheeler Cook. 'nu' Crisis in Conflirt of I.493 (1985). alleast as Kramer and I understand him. Weintraub. sli/no note 98." Gerhard Kegel. urged rather vaguely that conflicts cases should be resolved by the ordinaly tools of legal analysis. it has retained the central idea that forum law can determine whether foreign law "applies" or does not. Choice of law. 221 Kegel remarked that "[s]ince the applicability of domestic substantive law is determined by its construction and interpretation. at 185. See CtlRRl1-.":220 and others took him to be advocating a very similar abandonment of the venture. moreover.

then. There is. In the same way that a faulty axiom will produce paradoxes in a logical system. each should be able to exercise it. But the analysis of this Article has not proceeded as a matter of pure logic. Instead. avoids the renvoi problem. if State A law asserts that State B law applies. The conventional understanding asserts that states do have authority to determine the scope of other states' laws. The basic picture animating the venture-that a forum can consult its own law to determine whether a foreign state's law applies-ignores or defies the fundamental precept that state courts and legislatures are authoritative with respect to the scope of their own law. Excising such statements from the choice-oflaw vocabulary prevents the paradox from arising. this error creates ripples on the surface of the theory.USIO]'. which takes neither assertion as legitimate.pm text accompanying notes 140-48. then "State B law provides that State A law applies" is simply not a well-formed proposition. Renvoi. I have claimed as a constitutional matter that the power to set the scope of a state's law lies with that state and that state alone. Implicit in the conventional vocabulary of choice of law is a mistaken conception of the nature of the task and of the authority of forum law. something to the idea that renvoi resembles a problem of logic.' Choice of law. What I have argued is that a different approach. if states have this power. that is the ambition we must renounce. and State B law that A law applies. and renvoi is one of those. and that excision is what the two-step model achieves. 224 Renvoi is a 224 See su. If we suppose that the scope of State A law is a question of State A law alone. That is the picture that has held us captive.NOT RED A M r: [_ A W R 1-: V [ 1': W flicts currently suffers from is just that-the aftereffects of an overindulgence in metaphysics. arises when each state contradicts the other as to the scope of their respective laws. as conventionally understood. but that postulate leads naturally to the paradoxical infinite regress. the conventional understanding takes each assertion as legitimate and does not allow us to pick between them. has set itself an impossible task.. as I have analyzed it. . CONeI. and neither is its conclusion put forth simply as a means to avoid paradox. Thus. It should make us question our premises and revise the one that produces the contradiction. That error is embedded as deeply as can be-it is the starting point and basic postulate of all conventional choice-of-Iaw theories.

159-60 (1825). The basic idea that nation-states are authoritative interpreters of their own lay. instead.RESOLVING RENVOI logical problem that could only arise in a legal system other than our own." Understanding the nature of the problem in the manner developed in this Article should allow resolution on that basis. 225 Thus the Constitution does not resolve the problem of renvoi in the international seuing. 225 Choice of law. disappears as well. . we presume. The conventional understanding of choice of law attributes to states a power that the Constitution denies them. As Chief Justice Marshall put it in Elmend01fv. the only way in which conflicts can progress. or of France. it disappears. or of anv other nation. "no Coun in the universe. and therefore erect iL'ielJ into a tribunal which should correct such misunderstanding.S (10 Wheat. would. It is. Taylor. that the Courts of Great Britain. 23 U. however. and once the constitutional allocation of power is understood. which professed to be governed by principle. had misunderstood their own statutes. or a certain vision of it. occupies a similar fundamental place in international Jaw. undertake to say. But giving up on the idea that forum law can determine whether foreign law applies is no sacrifice.) 152.