Copyright © 1992 The Columbia
EQUAL CITIZENS OF EQUAL AND TERRITORIAL STATES: THE CONSTITUTIONAL FOUNDATIONS OF CHOICE OF LAW
* Alice McKean Young Regents Chair in
Law and Associate Dean for Research, The University of Texas at
Austin. I am grateful to
my colleagues at Texas for helpful reactions to a lecture on which
this article is based, to Lea Brilmayer, Michael McConnell, William
Powers, Linda Mullenix, and Jay Westbrook for helpful comments on
earlier drafts, and especially to David Currie, Mark Gergen, Larry
Kramer, and Russell Weintraub, whose helpful reactions to earlier
drafts graciously transcended the most fundamental disagreements over
the issues discussed. Bruce
Mann led me to sources on the Philadelphia bar of the 1780s, Jeannie
DeArmond-Henselman and Darryl Marsch provided research assistance, and
the University Research Institute at The University of Texas provided
One consequence of dividing a single nation into fifty
quasi-sovereign states is a constant need to choose the law that
governs interstate disputes. Choice
of law takes on a whole new significance in such a nation. We have handled the problem badly; indeed, we have not even
looked to the right sources of law.
We took a fundamental wrong turn at the very beginning of
modern choice-of-law scholarship.
The continuing error has been to
ignore the constitutional principles that control choice-of-law
questions. As Justice
Jackson suggested a generation ago, choice of law within the United
States is inherently constitutional law.
n1 Choice-of-law questions are about the allocation of
authority among the several states.
Allocation of authority is what constitutions do.
The essential function of constitutions is to constitute the
many units of government in our federal system and define and limit
the power of each. It
would be an astonishing oversight if our fundamental law did not state
general principles allocating authority among states and if those
principles did not have implications for choice of law.
This article explores the positive law bases for choosing among
competing intuitions about the limits of state authority and for
providing federal answers to choice-of-law questions.
I do not claim that the
Constitution dictates a unique set of choice-of-law rules, but I do
claim that the Constitution contains three principles from which all
domestic choice-of-law rules must be derived.
These three principles are:
1. The principle of equal citizens: States must treat the citizens of sister states equally with their own.
The principle of equal states: States must treat sister states
as equal in authority to themselves.
The principle of territorial states: The fundamental allocation
of authority among states is territorial.
The Constitution states the
first two principles in operational terms, most explicitly in Article
IV, in the Privileges and Immunities
n2 and Full Faith and Credit Clauses. n3 The third principle is largely implicit, so obvious that the
Founders neglected to state it. But
the texts of state and federal constitutions, state organic acts, and
state admission acts contain ample evidence of this allocation of
The choice-of-law implications
of the first two principles are negative; they state what choice of
law rules cannot be. Choice-of-law
rules may not prefer local citizens to citizens of a sister state;
that is the principle of equal citizens.
And they may not prefer forum law to the law of sister states;
that is the principle of equal states.
Many modern choice-of-law theories violate one or both of these
The implications of the third
principle are affirmative: all choice-of-law rules must be consistent
with, and derived from, the fundamentally territorial allocation of
authority among the states. State
interests are still relevant, especially in developing rules for
locating relationships, intangibles, and other subjects of regulation
not embodied in a single physical place.
But a state's claim to regulate behavior or to govern a dispute
must be based on some thing or event within its territory.
And in deciding which things or events control choice of law, a
state's interests in enriching local citizens and extending the
territorial reach of its own law are illegitimate.
They simply should not count.
A corollary proposition follows
from these three principles. The
constitutional principles that govern choice of law are federally
enforceable like any other constitutional principle.
Full enforcement requires specific federal choice-of-law rules
derived from the three constitutional principles.
Congress could enact such rules, but it has chosen simply to
restate one of the constitutional provisions and leave the details to
the courts. n5 It
therefore falls to the federal courts to derive specific choice-of-law
rules in the course of adjudicating disputes under the Constitution
and the implementing statute.
The three constitutional
principles, plus the corollary proposition about federal enforcement,
are independent in the sense that readers persuaded of any one or two
or three of them can accept that much without accepting the rest.
But they are interdependent in the sense that together they
form a coherent and mutually supporting foundation on which to develop
a system of choice-of-law rules.
After introducing some necessary
background, I will consider the three constitutional principles in
turn. Each section
develops one of [*252]
the principles from the primary sources of constitutional law,
and then turns to that principle's implications for choice of law.
The final section considers the need for implementing rules and
federal authority to specify such rules, and it tentatively suggests
some territorial choice-of-law rules for a modern society.
SOURCES OF LAW
The Academic Debate
The modern debate over choice of
law has been ably summarized elsewhere,
n6 and it is sufficient here to review the broad outlines. Some academic approaches to choice of law are largely
compatible with the constitutional principles I identify, but others
work from premises that are flatly unconstitutional.
From the mid-eighteenth to the
early twentieth centuries, Anglo-American law produced a crude system
of territorial choice-of-law rules.
These rules were crystallized in Joseph Beale's treatise,
n7 and in the Restatement of Conflicts
n8 for which he was the reporter, despite intense criticism
from other academics. n9
Beale attempted to derive all his rules from the single premise that a
right vested under the law of the place of the last event necessary to
assertion of the right. n10
Each theorist after Beale
offered his own theory to replace the Restatement.
n11 The most important of these academic theories was Brainerd
Currie's interest analysis,
n12 which urged courts to begin by considering each state's
interest in applying its own law.
The new theories were as inconsistent with each other as they
were with the Restatement, but collectively they swept the academy.
For a generation, it was hard to find a serious scholar who
would defend territorial choice of
[*253] law rules.
Aaron Twerski n13
and Alfred Hill n14
were the principal exceptions; they urged that traditional territorial
rules be modernized rather than abandoned.
The Restatement (Second)
attempted to accommodate all these competing theories.
n15 It directed courts to apply the law of the state with the
most significant relationship to the controversy, after considering
every factor thought to be relevant under any theory then extant. n16 Trying to be all things to all people, it produced
mush. Interest analysts
view it as defective, n17
but they tend to claim it as a "modern" theory.
n18 In the last decade, the academic battle has resumed. Lea Brilmayer, n19
John Corr, n20 Jack
Davies, n21 John
Ely, n22 Harold Korn,
Michael McConnell, n24 Gerald Neumann,
n25 and Linda Silberman,
n26 as well as Donald Regan in the closely related context of
n27 have all attacked the new theories and urged some
modernized version of territorialism, without the baggage of Beale's
theory of vested rights and last events.
n28 Perry Dane n29 and Michael Gottesman
n30 have urged determinate solutions that share the goals of
territorialism, and that would likely be mostly territorial in
implementation, but that need not be territorial in theory.
Larry Kramer n31
and Joseph Singer n32
have offered the most thoughtful and original responses to these
assaults, each attempting to accommodate some of the territorialist
objections. Neither has gone nearly far enough to satisfy my objections,
but Kramer has been denounced for heresy by a committed interest
The territorialist critics of
interest analysis include both conflicts scholars and constitutional
nonterritorial choice-of-law theories have all come from conflicts
scholars. Most of these
scholars have argued that their field is common law or perhaps
statutory law but certainly not constitutional law.
However, there are notable exceptions even within the
specialty: William Baxter,
n34 Michael Cardozo,
n35 Harold [*255] Horowitz, n36
Gary Simson, n37
and James Sumner n38
have all argued that the Full Faith and Credit Clause requires some
form of federal choice-of-law rules.
The most remarkable exception was Brainerd Currie himself, who
appeared to concede that his interest analysis would be
unconstitutional in many or even most of its applications.
Currie believed that the Full Faith and Credit Clause permitted
any interested state to apply its own law.
n39 But Currie and his co-author, Herma Schreter, also believed
that the Privileges and Immunities and Equal Protection Clauses
severely limited the state's ability to pursue its interest in
preferring its own citizens.
Currie's followers ignored this
concession and pursued interest analysis with little regard for the
Constitution. For most
contemporary choice-of-law scholars, the Constitution does not control
choice of law so much as choice-of-law theory informs the meaning of
the Constitution. n41
Most of them have little or nothing to say about constitutional text,
history, or structure. n42 They simply assume that the relevant constitutional
clauses are relaxed and nonspecific, rather like a substantive due
process requirement of reasonableness.
n43 They tend to use their
preferred choice-of-law theories to identify a few extreme cases that
might violate these vague limits.
Thus, some interest analysts argue that there should be
"no constitutional limits on the choice of an interested state's
law." n44 In a
striking inversion of the familiar compelling-interest exception to
full enforcement of constitutional rights, another suggested that the
Full Faith and Credit Clause applies to choice of law only when there
is "a compelling need" to apply it.
n45 Some scholars urge more restrictive constitutional limits
than the Supreme Court has recognized, but even they tend to urge only
modest change. n46
Common Law and Constitutional Law
The judicial reaction to all
this has been mixed. At
the level of state common law, a modest majority of states has adopted
one or more of the newer theories.
n47 But only a handful of states has clearly adopted interest
analysis, n48 and
the First Restatement is still the law in a plurality of states.
n49 About a third of the states, and perhaps nearly
retain rules that interest analysts consider premodern.
n50 Premodern usually means territorial.
The modern theories have also incorporated territorial
elements; in working on this article, I was pleasantly surprised by
the frequency of territorial decisions.
Indeed, I have come to suspect that one could explain a
majority of contemporary choice-of-law results in territorial terms.
That claim is wholly impressionistic; only a systematic survey
could establish the facts. But
it is at least clear that the new theories never dominated the courts
to the extent that they once dominated the academy.
At the constitutional level, the
modern Supreme Court has all but abandoned the field.
It has never considered a Privileges and Immunities Clause
challenge to a state choice-of-law rule, and it has removed most of
the content from the Full Faith and Credit Clause.
In 1935, without any real analysis, the Court accepted the
premise that states may apply their own law when they have a
sufficient interest in doing so.
n52 There followed a long period of inconclusive decisions,
many of them decidedly territorialist. n53 But no state choice-of-law decision was invalidated
after 1951. It gradually
became clear, as the Court now says explicitly, that "frequently
. . . a court can lawfully apply either the law of one State or the
contrary law of another."
The apparent end of all
meaningful limits came in 1981, in Allstate Insurance Co. v. Hague.
n55 There the Court upheld Minnesota's application
[*258] of its own
law to invalidate a clause in an insurance policy issued in Wisconsin
to a Wisconsin resident killed in a Wisconsin accident.
The plurality implied that the Court will invalidate a state's
choice of its own law only when the State "has had no significant
contact or significant aggregation of contacts, creating state
interests, with the parties and the occurrence or transaction."
n56 The "contacts" relied on were irrelevant to the
legal issues in the case: the decedent's widow moved to Minnesota
(after the claim arose), the insurer did business in Minnesota (and
every other state), and decedent had worked in Minnesota (but his
death was not job related). n57 Hague may mean that there are no limits
whatever on a state's power to apply its own law to benefit a resident
The Court did find some limits
on the states in Phillips Petroleum Co. v. Shutts, n58 striking
down the application of Kansas law to oil leases in Louisiana,
Oklahoma, and Texas, with no Kansans on either side of the lease.
Apparently a state cannot apply its own law when it has neither
a territorial contact nor a resident litigant.
But three years later the Court allowed Kansas to evade even
this rule, affirming a judgment that the law in the other three states
was the same as Kansas law.
n59 This required a prediction that none of the three states
would apply its own textually applicable statute to the case.
One state's honest
misunderstanding of another state's law does not present a federal
question; the Supreme Court of the United States is no more
authoritative on Texas law than the Supreme Court of Kansas.
But this interpretation of sister-state law cried out for
serious review under the Court's sensible rule from other contexts: an
evasive or insubstantial ground of decision that avoids a federal
right is not an adequate and independent state ground immune from
Supreme Court review. n61
As matters stand, the Full Faith and Credit Clause means almost
nothing, and state courts can often evade the little that it does
Congress has failed to fill the
vacuum resulting from the Supreme Court's withdrawal.
The field has been left to state courts and academic
substantially freed of any federal constraint.
The results have been predictably chaotic, because federal
abdication leaves no disinterested umpire to resolve an important
class of interstate disputes. State
law cannot supply the answers, because the questions are about
interstate relations and no state is empowered to answer for any
International Law and Constitutional Law
I am speaking only of choice of
law within the United States. It
is a serious mistake to discuss domestic and international
choice-of-law cases interchangeably, even though that practice is
nearly universal in the conflicts literature.
n63 The confusion of domestic and international cases both
flows from and reinforces the failure to recognize that choice of law
in the United States is constitutional law.
International choice of law has obvious parallels, and the
three principles I have stated would serve well in a wide range of
cases. n64 But
international choice of law differs from domestic choice of law in two
First, international choice of
law is derived from wholly different sources.
How U.S. courts treat foreign law is a matter of comity and
diplomacy, the voluntary choice of a sovereign power.
How Texas courts treat the law of a sister state is a matter of
law, not comity, and the choice is no longer voluntary.
For this purpose Texas is not a sovereign state; it surrendered
this portion of its sovereignty when it joined the Union. n65
Much of the Constitution
addresses the task of creating one nation out of separate states, and
of doing so without abolishing those states.
Many constitutional provisions are designed to foster national
unity and to move interstate relations away from the international
model. The provisions
most relevant here are the Privileges and Immunities,
Full Faith and Credit,
n67 Extradition, n68
and Free Navigation Clauses,
n69 the Supreme Court's jurisdiction over suits between states,
n70 the prohibition of war and diplomacy between states,
n71 the prohibition of state taxes on imports and exports,
n72 and in a part of the original plan that became a monstrous
failure, the Fugitive Slave Clause.
n73 With respect to all these matters the states were forbidden
to treat each other like foreign countries.
All these changes from international practice make analogies to
international choice of law the wrong place to begin analysis.
Relations among American states were a new thing under the sun,
and a choice-of-law system for those states must come from the
Constitution that created their relationships.
Second, international choice of
law requires more flexibility than domestic choice of law.
Within the United States, the intensity of conflicts of law is
limited by a common culture and political tradition, a shared set of
constitutional rights, and the guarantee of a republican form of
Unworkable conflicts can often be eliminated by preemptive federal
law, or even by constitutional amendment, as in the minimum standards
of individual rights provided by the Thirteenth and Fourteenth
choice of law need not be flexible enough to deal with totalitarian
states, revolutionary states, legally unsophisticated states, or
states with legal and cultural traditions fundamentally different from
We may view sister-state law as
seriously unjust on particular points, but these disputes are minor
variations within substantially similar legal systems.
Slavery was the great uncompromisable exception, but slavery
has been uniformly abolished.
n75 Abortion may be an equally uncompromisable exception, but
no state has yet tried to prosecute resident women who undergo
abortions out of state, or even forbid insurance coverage for such
abortions, and perhaps none will.
In any event, two such controversies in two hundred years
remain exceptional, and no set of legal rules or judicial decisions
could resolve such deeply felt moral and political conflicts.
Disagreements over spousal immunity rules or enforcement of
gambling debts are simply not analogous to disagreements over slavery
and abortion. Even if the
Constitution spoke less clearly than I think it does, it would be a
serious error to design choice-of-law rules around slavery and
abortion, instead of around the thousands of routine conflicts between
[*261] In short,
international choice of law needs accessible escape hatches; domestic
choice of law does not. In
domestic choice of law, it is possible to lay down constitutional
principles and live within them.
The next three sections explore the three choice-of-law
principles in our fundamental law.
THE PRINCIPLE OF EQUAL CITIZENS
The Privileges and Immunities Clause
The principle of equal citizens
is set forth most explicitly in the Privileges and Immunities Clause
of Article IV. The same
principle is included in the more general guarantee of the Equal
Protection Clause, and it is implicit in the Commerce Clause, both
considered below. n76
The Privileges and Immunities
Clause is no mere technical detail.
Taken at face value, it is universal in its scope, absolute in
its terms, and critical in its contribution to national unity.
It says: "The Citizens of each State shall be entitled to
all Privileges and Immunities of Citizens in the several States." n77 The core concept is stunningly simple: An American
citizen visiting a sister state is "entitled to all Privileges
and Immunities of Citizens." An Australian in Texas is an alien,
but a Californian in Texas is in some sense a citizen, or at least
equal to a citizen. The
Californian is entitled to all the privileges and immunities accorded
to Texans. In short, we
must treat her like a Texan. To use a famous phrase, Texas must accord her "equal
concern and respect."
One seeking to limit the effect
of the Clause may seek to reduce its scope or to reduce the standard
of judicial review. The
two techniques are independent of each other, and both have been
tried. I consider each in turn.
The Scope of the Clause. -- The principal effort to
reduce the scope of the Clause argues that "Privileges and
Immunities" was a term of art, so that the Clause is limited to
the term's specific referents.
n79 But there is both textual and historical evidence that the
phrase was not a term of art. The
Constitution twice guarantees privileges and immunities, once in the
Privileges and Immunities Clause of Article IV, and once in the
Privileges or Immunities Clause of the Fourteenth Amendment.
n80 John Ely has shown that "privileges or
immunities" was not a term of art in 1868,
n81 and I have seen no evidence that "privileges and
was any more a term of art in 1787.
The two clauses have very
different meanings, and the change in conjunction has nothing to do
with it. n82 The
Article IV clause provides that citizens of one state shall be treated
like citizens in other states. Persons
claiming rights or benefits under the clause get the rights or
benefits of a reference group -- local citizens.
If the rights of local citizens change, the rights of visitors
under the clause change derivatively.
This is an equality right.
The Fourteenth Amendment clause
provides that no state shall infringe the privileges or immunities of
citizens of the United States. Whatever
these privileges or immunities are thought to be -- whether there are
many or hardly any, and even if their content changes over time --
they depend directly on federal law applicable to all and not on the
rights of some reference group. All
persons get the rights guaranteed by the clause without regard to how
any other person is treated. This
is a substantive right. n84
It is not an equality right; the Equal Protection Clause is the
equality provision of the Fourteenth Amendment.
Thus, the Article IV clause
created equality rights; the Fourteenth Amendment clause created
substantive rights. Fourteenth
Amendment privileges and immunities are defined by federal law;
Article IV privileges and immunities are defined by state law.
If we insist that the phrase have the same meaning in both
clauses, it is impossible to make sense of either clause.
If the phrase were a term of art, it could not have been used
in two such different senses.
Mark Gergen, who has helpfully
collected the early uses of the phrase,
n85 concludes that it referred only to commercial rights. n86 I do not doubt that the needs of merchants were the
problem most salient to the Founders, but the Clause is not textually
limited to them. Even if
I were persuaded that the Clause is limited to merchants, I would
argue that virtually any discrimination against visitors from sister
states harms the interests of out-of-state merchants.
The only exception would be purely recreational interests, such
as the hunting rights at issue in
v. Fish and Game Commission. n87
The principal evidence that the
Clause was not limited to the needs of merchants comes from comparing
the constitutional clause to its antecedent in the Articles of
antecedent clause guaranteed "all the privileges and immunities
of free citizens," and also "all the privileges of trade and
The felt need to specify privileges of trade and commerce is
inconsistent with the claim that "privileges and immunities"
was a term of art for those privileges and none other. Moreover, the language that referred specifically to trade
and commerce was omitted from the Constitution, and the more general
language was retained. If
the clause were limited to trade and commerce, we would expect it to
be the other way around.
The argument to this point is
textual, not intentionalist.
n89 We do not know what the Founders were thinking, but we know
what they ratified. With
a clear choice of drafting alternatives before them, they rejected the
language of trade or commerce, and chose more general language
instead. But the argument
does not depend on text alone; respected evidence of intent reinforces
the textual inference. James
Madison in The Federalist Papers implied that the privileges of
trade and commerce were dropped because no one knew "what was
meant by superadding" them to privileges and immunities of free
citizens. n90 Thus, the drafting history suggests that the Clause
is of general scope, and that a further specification of trade and
commerce was thought unnecessary, dangerously limiting, or both.
The policies of the Clause also
require that it be general in scope.
The Clause is first and foremost a national unity provision,
eliminating a source of interstate divisiveness.
Alexander Hamilton said that this Clause was "the basis of
the Union." n91
But the Clause also appears to be an individual liberty provision,
protecting individual American citizens from discrimination by sister
states. n92 The
equal rights of citizens [*264]
of sister states is a special case of the "self
evident" truth that "all men are created equal." The
two policies were inextricably linked in an age when Alexander
Hamilton could plausibly argue that foreign mistreatment of an
individual citizen was "among the just causes of war."
Any discrimination against
visiting citizens of sister states harms the victim and strikes a
small blow against national unity.
Discrimination against citizens of sister states, justified
only by a preference for locals or a view that the state has no
interest in protecting outsiders, undermines our tendency to think of
ourselves as a single people and leaves the victims with a legitimate
sense of raw injustice.
If thinking of ourselves as a
single people no longer seems a pressing goal, it is only because of
the extent to which we have achieved it.
That goal had not been achieved by 1787, nor yet by 1861, and
strong sectional interests cause occasional regressions even today.
In the mid-seventies, at the height of the oil shortage, a
popular bumper sticker in the oil-producing states proposed to
"Let the Yankee bastards freeze in the dark." Oil-importing
states may have popularized equally offensive slogans when the tables
were turned in the mid-eighties.
Certainly both groups of states zealously pursued their
self-interest through all the ups and downs of oil prices.
Pork-barrel politics and buy-local advertising campaigns are
widely accepted practices that elevate local over national interests.
Canada's experience with Quebec shows that stable democracies
with developed economies are not immune from separatist movements, and
we too have a large language minority living on land acquired by
conquest. It is critical
to the Union that we continue to think of ourselves as a single
people, and it is important that we not knowingly create legitimate
Robert Sedler has suggested that
there are not enough choice-of-law cases to have any real impact on
national unity or interstate relations.
n94 I quite agree that discrimination in choice of law does not
by itself and at this time threaten imminent disunion.
But the Founders viewed the matter differently, and they were
right. The impact of such
cases depends not on their sheer numbers, but on how they are
perceived and whether they interact with other grievances in
reinforcing ways. There
are many more choice-of-law cases than capital sentences,
n95 but discrimination in those few capital cases is a major
[*265] source of
racial division. n96
The effect of discrimination in choice-of-law may be large or small,
but it is never positive, and its negative effect could be amplified
by interaction with some new source of interstate tension.
In any case, Sedler's point is wholly irrelevant to the
individual liberty policy of the Privileges and Immunities Clause.
Each unjustified discrimination against a citizen of a sister
state is a constitutional wrong to that citizen, regardless of the
impact on national unity.
In light of the constitutional
values of national unity and equal treatment of individual citizens,
and the lack of any more specific referent, "Privileges and
Immunities of Citizens" most plausibly refers to all the ways in
which citizens are treated by the state.
The scope of the Clause is co-extensive with the scope of
interactions between states and citizens.
n97 One of these interactions is to decide lawsuits between
citizens of different states, and to choose the law that governs such
rules that prefer local litigants prima facie violate the Privileges
and Immunities Clause.
The Supreme Court has not held
that "Privileges and Immunities" is a term of art limited to
certain categories of rights. But
it has limited the scope of the term by saying that it includes only
those rights of citizens that are "fundamental."
n98 "Fundamental" in this context seems to mean
merely "important," or perhaps "not
insignificant." A right can be fundamental for privileges and
immunities purposes even though it is far from a fundamental right in
the sense that a compelling interest would be required to override it
for citizens and non-citizens alike. Thus, all the rights of trade, commerce, and pursuit of a
livelihood are fundamental rights for this purpose. n99 These economic rights get strong interstate
equality protection, even though the Constitution gives them almost no
substantive protection. n100
It has been a mistake to limit
the Clause to "fundamental" rights, even if the limitation
is rarely invoked, but the mistake does not matter here.
Both critics and supporters of interest analysis have agreed
this limitation is irrelevant to choice of law.
n101 To receive equal justice in the courts, to be governed by
equal application of equal laws, is at the core of our governmental
system. And as we shall
see, equal treatment in the courts was a central part of the Founders'
understanding of privileges and immunities; the Privileges and
Immunities Clause was closely linked to the diversity jurisdiction.
n102 The limitation to fundamental rights cannot explain the
long neglect of the Privileges and Immunities Clause in choice-of-law
There is one other possible
interpretation of privileges and immunities.
Perhaps in 1787 the term carried a sense of civil rights
as distinguished from political rights.
The Privileges and Immunities Clause does not mean that
visitors from sister states can vote in local elections or hold local
office. n103 We may
think of these rights as rights that are not privileges and immunities
at all, or as implied exceptions from overbroad language.
I briefly consider them below as exceptions.
The Standard of Review. -- A second attempt to undermine
the Privileges and Immunities Clause seeks to lower the standard of
review. The standard of
review is independent of the scope of the Clause.
Within its scope -- with respect to whatever "Privileges
and Immunities" it applies to -- the Clause is written in
absolute terms. States
are not merely to refrain from "irrational" or
discrimination, or to treat citizens of sister states "reasonably
equally," or equally except where there is some reason to
discriminate, or even some "substantial" reason to
discriminate. n106 Rather, the Clause says without qualification that
states are to treat citizens of sister states as citizens.
The narrow focus of the
Privileges and Immunities Clause is also relevant to the standard of
review, sharply distinguishing this clause from the general guarantee
of equality in the Equal Protection Clause.
Because the Equal Protection Clause literally applies to every
distinction government makes, the only sensible interpretation is that
some distinctions are more suspect than others.
The difference between the two clauses is like the difference
between the Equal Protection Clause and the rejected Equal Rights
Amendment. Lawyers argued
whether sex was a suspect classification under the Equal Protection
Clause, but few doubted that sex would be a suspect classification if
the Equal Rights Amendment were ratified.
n107 The Privileges and Immunities
specifies its suspect class, absolutely forbids discrimination against
that one class, and applies to nothing else.
Inevitably there will be
exceptions even to this strong language.
We have learned from the more familiar example of the First
Amendment that even when a constitutional right is stated in absolute
terms, courts must imply exceptions for sufficiently compelling
reasons. n108 But
an implied exception to an expressly absolute constitutional right is
an extraordinary thing. Courts
cannot legitimately imply exceptions to absolute provisions in the
same free way they construe rights that expressly depend on what is
reasonable or what is due. All
constitutional rights require balancing, but with respect to the
textually absolute rights, balancing should be tilted heavily against
Discrimination against citizens
of sister states will sometimes be justified, but only (or almost
only) when such discrimination serves federal interests and not merely
the interests of the discriminating state.
If a state's parochial interests can ever justify
discrimination against citizens of sister states, it can only be to
avoid intolerable harms. In conventional terms, the standard of review should be the
compelling interest standard.
This view of the Clause derives
in part from a belief that we should take the whole Constitution
seriously. n109 We
cannot legitimately pick and choose the clauses we want enforced.
n110 But the Privileges and Immunities Clause is not an
arguable constitutional mistake, nor is it an obsolete provision that
modern Americans are stuck with; it fits neatly into modern
conceptions of nondiscrimination. Discrimination against fellow Americans is intuitively
unjust. Citizens of
sister states are outsiders, subject to in-group/out-group bias,
denied the right to vote, which is the key to power in the political
process, and thus dependent on judicial protection.
n111 Faithful interpreters of the Constitution
[*268] should not
be seeking ways to minimize the Privileges and Immunities Clause.
The Supreme Court has not
treated all textually absolute constitutional rights equally. Nor has it applied the compelling interest test to the
Privileges and Immunities Clause.
But it has come close. It
has held that only a "substantial" interest can justify
discrimination against natural persons from sister states,
n112 and it has invalidated much local discrimination under
that formulation. n113
sister-state corporations has been treated differently, because the
Privileges and Immunities Clause protects only citizens.
Corporations cannot be citizens, and the Court has so far been
unwilling to look through the corporation and protect the sister-state
Instead, discrimination between local and sister-state corporations
violates the Commerce Clause
n115 and the Equal Protection Clause.
n116 The Supreme Court's enforcement of these prohibitions has
gradually strengthened over the years.
The Court once viewed incorporation as a privilege that could
be granted or withheld for any reason or no reason, and thus states
were free to exclude sister-state corporations or to condition their
admittance on consent to discriminatory treatment.
n117 This view was wrong even in its own time, but it became
profoundly obsolete after general incorporation statutes
corporate status a right available for the asking.
Today the Court interprets the
Commerce Clause to forbid all or nearly all discrimination against
economic actors from sister states.
It has said that discrimination against interstate commerce is
"virtually per se invalid,"
n119 without hope of justification by further inquiry into
state interests. n120
In other cases, it has said that such discrimination is subject to the
n121 or "more demanding scrutiny."
n122 This rule applies with equal force to discrimination
against out-of-state persons and discrimination against out-of-state
sister-state corporations violates the Equal Protection Clause as well
unless it bears "a rational relation to a legitimate state
This rule is not so weak as it appears, because it carries the
important proviso that a mere desire "to favor domestic industry
within the State" is not a legitimate state purpose.
n125 Rather, discrimination so motivated "constitutes the
very sort of parochial discrimination that the Equal Protection Clause
was intended to prevent."
n126 Congress can authorize state regulation of interstate
commerce that would otherwise be precluded by the Commerce Clause,
n127 but it presumably cannot authorize violations of the Equal
Protection Clause. n128
Review of discrimination against
natural persons or corporations from sister states should be equally
stringent under any of these clauses.
The objections to discrimination against citizens of sister
states do not change when those citizens elect to do business in
corporate form. The owners of a sister-state corporation are still fellow
Americans exposed to the risk of local bias, and their right to do
business throughout the country is still essential to national unity. The [*270]
omission of corporations from the Privileges and Immunities
Clause is not an element of the constitutional scheme; it is a relic
from a time before general incorporation laws. The same constitutional policies of national unity and
interstate equality are at work in all three clauses.
The specific concerns that underlie the Privileges and
Immunities Clause inform the more general right of equality in the
Equal Protection Clause and the equality component of the Commerce
Clause. n129 The Court should be reluctant to imply exceptions
to any of these protections.
The Exceptions: Legitimate Discrimination Against Citizens
of Sister States
Even so, the Privileges and
Immunities Clause does have some legitimate implied exceptions. Californians do not vote or collect welfare in Texas, and
they pay out-of-state tuition to attend Texas universities.
It is important to identify the principle that explains these
exceptions, and to examine what that principle implies for choice of
law. Critics of any
constitutional clause are prone to argue that the legitimacy of some
exceptions implies the legitimacy of others. n130
Such arguments are non-sequiturs unless it is shown that the proposed
exception is implied by the same principle as the acknowledged
exception. The essential
feature of the uncontroversial exceptions to the Privileges and
Immunities Clause is that they are implied by the needs of the federal
structure. They serve the
interests of the nation, and not merely the interest of a single
Exercising Government Power. -- The most fundamental
exception to the rule of equal treatment is that each state can
reserve the exercise of government power, including the vote, to its
own citizens. n131
This exception is consistent with, and required by, the Founders' dual
purpose of achieving national unity and preserving the states as
separate polities. It may
seem odd to conclude that the principal exception to a rule requiring
visitors to be treated as citizens is that they cannot exercise those
ultimate political powers that we have come to think of as the
quintessential rights of citizens.
But oddities were inevitable once the Founders set out to unite
thirteen states into a single nation and simultaneously to preserve
The oddity here is not in the
rule; no one thinks citizens of each state should vote in all fifty
requirements for voting [*271]
have been thought "necessary to preserve the basic
conception of a political community;"
n132 they protect local autonomy from meddling outsiders who
will not have to live with the consequences of their votes.
n133 What seems odd to modern ears is to use the language of
citizenship to describe a broad set of rights that does not include
the right to vote. But
this linguistic oddity is quite explicable.
The link between citizenship and
voting was much less natural and apparent to the Founders than it is
to us. Voting rights were
left to positive law, and each state determined its own qualifications
for voting. n134
The Constitution has since been amended seven times to expand voting
rights. n135 Not
all citizens are entitled to vote even today; children are excluded
without controversy, and most felons with only modest controversy.
n136 In the eighteenth century, when women were also excluded
and some men were still excluded by property qualifications, only a
minority of citizens were entitled to vote.
n137 In the nineteenth century, when most female citizens were
still excluded, many states allowed resident aliens to vote.
Whatever the Founders may have
thought about the relation between citizenship and voting, they
plainly did not think Virginians should vote in Massachusetts.
Because no one in the 1780s was urging that citizens of one
state be allowed to vote in any other, the Founders had no occasion to
consider whether the Privileges and Immunities Clause might be
misunderstood to apply to voting.
Subsidized Social Welfare Services. -- The broadest
exception to the Privileges and Immunities Clause covers subsidized
social welfare services. States
can generally restrict such services to their own residents, or
account for the subsidy in a higher user fee for nonresidents.
n139 Otherwise, individuals could benefit from subsidies
being subject to the taxes that pay the subsidies.
n140 A claim to share benefits without sharing their cost does
not flow easily from a right to equal treatment.
Of course, the assumption that
subsidies are supported by taxes on residents is only approximately
true. Only residents are
subjected to the state's full taxing power,
n141 but nonresidents pay some taxes and receive some
government benefits. The
argument that the state can confine subsidies to residents uses
residence as a proxy for tax liability.
Like all proxies, it is not entirely accurate.
But the need to confine
subsidies to residents does not wholly depend on equity to individual
taxpayers. The structural
problem is more fundamental: If Americans were entitled to subsidized
services in every state, whole states could be free riders.
A state could decide there was no need to create a state
university so long as its students could be educated at the expense of
taxpayers elsewhere, and no need to pay welfare benefits so long as
its citizens could claim benefits in any state they might choose.
A small state like Rhode Island, where nearly the whole
population lives within commuting distance of another state, could
rely on its neighbors for a wide range of social services.
No body of taxpayers will
support subsidized services for an unlimited number of visitors who do
not help pay for the subsidy. Application
of the Privileges and Immunities Clause to subsidized social services
would create inexorable pressure to reduce or eliminate state
subsidies for such services. Ultimately,
most such services would have to be provided at the federal level, and
a key feature of federalism -- the voters' ability to choose different
levels of government to perform different functions -- would be
eligibility for social services would inevitably consolidate the
provision of social services just as interstate voting would
consolidate our separate politics.
If we are to have separate states at all, then each of us must
be constitutionally entitled to vote and receive subsidized services
in one and only one of those states.
[*273] There were
few subsidized services in the Founders' time, and they probably did
not think this exception all the way through.
But they probably took for granted the basic point.
America's rudimentary forms of relief for the poor made each
poor person the responsibility of his or her local parish or town;
there were rules and procedures, and sometimes litigation, for
deciding which towns were responsible for which individuals.
The exception for subsidized
social services must contain at least some exceptions to the
exception. Visitors from
other states must be eligible for services that are essential to
interstate travel and commerce, even if those services are subsidized.
The precise borders of this category may require case-by-case
determination, but visitors are at least entitled to use the roads, to
police and fire protection, to emergency medical care, and to other
emergency services. This
conclusion is also derived from the needs of the Union.
If visitors could not use these services as needed, no one
could safely travel interstate. Because
travelers' demand for necessary services is reciprocal -- and because
states collect substantial sums from travelers through neutral taxes
on gasoline, hotels, and retail sales -- this restriction on state
power does not threaten the separate existence of the states or their
ability to make policy choices and fund services.
Other Possible Exceptions. -- Any other legitimate
exceptions to the Privileges and Immunities Clause should be very
narrow. It should never
be enough that local citizens need the benefit of discrimination,
because the need of similarly situated citizens of sister states is
just as great. n144 The state can draw its lines on the basis of need
rather than citizenship, or it can subsidize its own needy and rely on
the subsidized social services exception.
Exceptions can never be based on hostility or indifference to
citizens of sister states, or on a judgment that their interests are
less important or less deserving of the state's attention than the
interests of locals. Claims that citizens of sister states are the source of some
special difficulty requiring discriminatory legislation should be
subjected to strict scrutiny.
for Choice of Law
The Original Interest Analysis. -- Interest analysis in
its original version obviously violated the principle of equal
citizens. I take the
original version to be the analysis of interests in Brainerd Currie's
famous article on married women's contracts.
n145 I want to begin with that analysis, deferring
consideration of later qualifications. Currie's preference for local citizens remains deeply
embedded in interest analysis; when it emerges to affect a result, it
Currie rang the changes on Milliken
v. Pratt, n146
a suit by a Maine merchant against a Massachusetts wife who had
guaranteed her husband's debts. Such
guarantees were enforceable under the law of Maine, but unenforceable
under the law of Massachusetts. To
make sense of the example, we must accept the nineteenth century's
assumption that married women benefitted from this protection.
Currie's first premise was that
a state's only fully legitimate interest with respect to an interstate
transaction is to enrich its own citizens.
He recognized that states might take an "altruistic
interest" in the welfare of nonresidents, but such interests were
"of a quite different order from" nonaltruistic interests.
n147 The interests of citizens of sister states quite literally
did not count in Currie's primary analysis of state interests,
n148 and he eventually decided that it is sometimes
unconstitutional to take such interests into account.
n149 For Currie, this definition of state interest appears to
have been a postulate, beyond the need or possibility of proof.
Substantially his whole argument on the point was one
rhetorical question and answer: "The legislature decides in favor
of protecting married women. What
married women? Why, those
with whose welfare Massachusetts is concerned, of course -- i.e.,
Massachusetts married women."
n150 Contemporary interest analysts tend to agree.
The claim that states have no
interest in the welfare of nonresidents is not just a despairing
response to intractable "true" conflicts.
Currie's whole scheme of true conflicts, false conflicts, and
unprovided for cases depends on his view that the interests of
outsiders do not count. n152
An example of a conflict Currie considered false would be a suit by a
Massachusetts merchant against a Maine married woman.
In Currie's view, Massachusetts has no interest in protecting
the Maine woman, because she is not from Massachusetts.
Maine has no interest in protecting her either, having
overridden her interest in its law of married women's contracts.
In Currie's view, there is no conflict of laws in such a case.
There is only a Massachusetts interest in helping its merchant
This conflict is false only on
the premise that the interests of Maine's citizens are of no concern
to Massachusetts. If
Massachusetts must be as solicitous of Maine's citizens as of its own,
then no permutation of the parties' domiciles makes the conflict
Whatever choice-of-law rule might be adopted for such cases, it must
be blind to the distribution of benefits across state lines.
If legislatures acted generally
on Currie's view that they owe nothing to the citizens of sister
states, the Union would be destroyed.
His argument fits murder laws as readily as married women's
contract laws. He could
have said with equal logic: "The legislature decides in favor of
protecting human beings. What
human beings? Why, those with whose welfare Massachusetts is
concerned, of course -- i.e., Massachusetts human beings."
n155 The nearest reported analogue in our jurisprudence
is the story of Judge Roy Bean, who allegedly said he had looked all
through the statute book and found no law against killing a Chinaman.
n156 Lest it be thought unfair to charge Currie with having no
interest even in nonresidents' right to life, note that he did in fact
apply this reasoning to wrongful death actions.
A good way to illustrate the
full implications of Currie's approach is with another classic source
of choice-of-law cases, the automobile guest statute. These statutes generally provided that an injured passenger
could not sue his own driver, with certain exceptions that do not
affect the analysis. The
guest statute makes a simple illustration, but I could make the point
with married women's contracts or any other case where one state
imposes liability and the other does not.
there are two acquaintances, Mary from Maryland and Del from Delaware.
They go out together on occasion, and they take turns driving. One
night, with Mary driving, they get into a wreck, and Del is hurt. Another night, with Del driving, they get into another wreck,
and Mary is hurt. Del
follows his lawyer's advice to stay out of Maryland, so Mary sues him
in Delaware. Del files a
permissive counterclaim for his own injuries in the other wreck.
So we have a mirror-image claim and counterclaim.
Finally, suppose that Delaware has a guest statute and Maryland
does not. How would
Currie decide this case?
On Mary's claim against Del, Del
wins. He is protected by
the guest statute; Delaware has an interest in applying the statute to
protect him; and the Delaware court has no reason or even authority to
subordinate Delaware's interest to Maryland's.
On Del's claim against Mary, Del
also wins. Delaware has
no interest in applying its guest statute to protect Mary, and
Maryland has not attempted to protect her, so this is a false
conflict. Delaware is
free to pursue its interest in compensating Del. n158 The bottom line is that Mary has to pay Del, but
Del need not pay Mary. Currie
thought that this was fair and non-discriminatory, and that any other
system would be irrational.
I have highlighted the
unfairness with the artificial device of putting the same individuals
on both sides of the issue. Professor
Brilmayer illustrated the point even more elegantly, with a contract
that is void under the statute of frauds of one state but not of the
other. Whether an
interest analyst would enforce the contract turns on which party
breaches the contract and which party seeks to enforce it.
The discrimination is the same
whether we have one lawsuit, or two lawsuits between the same
litigants, or many lawsuits between many different pairs of litigants.
Currie would have Delaware rule for its own guests, and also
for its own drivers, in interstate cases.
He would have Massachusetts rule for its own merchants and also
for its own married women, in interstate cases.
But the Privileges and Immunities Clause requires states to
treat both litigants as citizens, and thus precludes any preference
between them. n160
Brilmayer generalized the point
in an important way. Interest
analysis is discriminatory because it effectively creates three sets
of rules. There is the
local rule, the other state's rule, and the local rule for outsiders,
which is the least advantageous of the three.
n161 In terms of my guest statute example, there is Maryland's
rule for Marylanders, [*277]
Delaware's for Delawareans, and Delaware's rule for
Marylanders. Mary would
win one of her two cases under the Maryland rule, and one of her two
cases under the Delaware rule, but she loses both cases under Currie's
proposed Delaware rule for Marylanders.
Proliferate these results over all the disputes between
citizens of states with different law on the point at issue, and you
have a substantial body of discrimination against citizens of sister
It is also possible to get
anomalous results with territorial rules, but it is not possible to
get systematically self-interested results.
Under the law of the place of injury, if Mary is hurt with Del
driving in Delaware, the Delaware guest statute will bar her recovery.
And if Del is hurt with Mary driving in Maryland, no guest
statute will apply. Again,
Mary loses both cases. But
it could just as easily be the other way around: If Del is hurt in
Delaware, and Mary is hurt in Maryland, Del will lose both cases.
If both accidents occur in the same state, no matter which
state it is, the same law will govern both, and Mary and Del will each
win one and lose one.
If Mary and Del's relationship
can be sensibly located in a single state, then it is possible to
apply the law of the place of the relationship.
No matter which state it is, and no matter where the accidents
occur, Mary and Del will each win one and lose one.
Under territorial rules, Mary and Del will each win half the
possible cases. It is
only the application of interest analysis that causes Delaware to
systematically discriminate against Mary, and tempts Maryland to
systematically discriminate against Del. n162
The Central Issue: Two Concepts of Discrimination. --
There is one other way to compare litigants on this fact pattern,
sometimes offered as an argument against territorial rules.
Suppose Mary somehow sued Del in Maryland for the injuries she
suffered in Delaware, and the Maryland courts applied the Delaware
guest statute to bar recovery. This
would be a straightforward application of the law of the place of
injury. But compare Mary
to Marie, another citizen of Maryland, injured in an accident in
Maryland. Marie can sue the driver of her car; [*278] Mary
cannot sue the driver of hers. Currie
thought this discriminatory -- indeed, irrationally and
He saw no basis to distinguish citizens whose claim arose in
one state from citizens whose claim arose in another state with
different law! n163
Other interest analysts reach the same conclusion.
These contrasting accounts of
discrimination bring us to the heart of the problem. As Mark Gergen pointed out, it is inevitable that we will
have either the kind of discrimination to which I object, or the kind
to which Currie objected. n165
We must decide which discrimination is more consistent with the
Constitution, or if the Constitution is indifferent, which
discrimination we prefer.
For me, the constitutional
choice is clear. I have
already argued that the Privileges and Immunities Clause expressly
forbids discrimination on the basis of citizenship.
Nothing in the Constitution expressly forbids discrimination on
the basis that the disputes arose in territory subject to the laws of
different states. The
opposite is true: I will argue that territorial discrimination is
inherent in the decision to preserve the states as quasi-sovereign
territorial entities. n166
For now, note the strange
limitations on Currie's charge of discrimination.
If Mary sues Del in Maryland and finds her claim barred by the
Delaware guest statute, Currie thought she had been discriminated
against. But if Mary sues
Del in Delaware, Currie believed that her claim should be
barred by the Delaware guest statute.
Not to bar her claim would discriminate against Del, as
compared to other Delaware drivers protected by the statute.
Thus, neither Mary nor Del can have an entitlement to treatment
that Currie would consider nondiscriminatory.
Rather, his conception of discrimination is contingent on where
the suit is brought. Maryland
cannot discriminate against Mary, and Delaware cannot discriminate
Now this is very strange.
No one has ever thought that states are unduly prone to
discriminate against their own citizens.
Currie would constitutionally prohibit the discrimination the
Founders did not fear, and require the discrimination they prohibited.
Original Intent, Constitutional Structure, and Diversity
Jurisdiction. -- Another constitutional provision also implements
the constitutional requirement of judicial neutrality between citizens
of different states. This
is the diversity jurisdiction,
n167 created because of the fear that state courts might prefer
local litigants, and especially that they might
local debtors to sister-state creditors.
n168 Congress conferred broad diversity jurisdiction in 1789;
n169 general federal question jurisdiction did not follow until
1875. n170 This
chronology plainly reflects a congressional judgment about which
jurisdiction was more essential to the Union.
The basis of that judgment appears in The Federalist Papers.
Hamilton defended diversity
jurisdiction as necessary to implement the Privileges and Immunities
Clause: "in order to [achieve] the inviolable maintenance of that
equality of privileges and immunities to which the citizens of the
Union will be entitled, the national judiciary ought to preside in all
cases in which one State or its citizens are opposed to another State
or its citizens." n171 The plain implication of this passage is that the
Privileges and Immunities Clause is at issue in every diversity case
-- that one of the privileges and immunities protected is equal
treatment in the courts. His
next sentence added that these cases should be in federal court
"[t]o secure the full effect of so fundamental a provision
against all evasion and subterfuge." n172
Hamilton is not making the
specious argument that a young Henry Friendly attributed to him:
n173 Hamilton is not deducing the need for diversity
jurisdiction from the need for federal question jurisdiction over
cases arising under the Privileges and Immunities Clause. Rather, Hamilton's argument makes sense only if he means that
in any litigation, arising under any law, discrimination in the
administration of justice against a citizen of a sister state would
violate the Privileges and Immunities Clause.
Diversity jurisdiction was also
the occasion for Hamilton's remark about mistreatment of foreigners
being a cause of war. His
full statement was that "the denial or perversion of justice by
the sentences of courts, as well as in any other manner, is with
reason classed among the just causes of war. . . ."
n174 "Sentences" here refers not just to criminal
sentences, but to "the judgment or decision of a court in any
civil or criminal cause."
n175 Hamilton cited "a horrid picture of the dissensions
and private wars which distracted and desolated Germany prior to the
institution of the IMPERIAL CHAMBER by Maximilian towards the
[*280] close of
the fifteenth century, and . . . the vast influence of that
institution in appeasing the disorders and establishing the
tranquillity of the empire."
n176 He plainly intended that diversity jurisdiction and the
Privileges and Immunities Clause should avoid such problems in the
United States. n177
It is astonishing but true that
conflicts scholars have largely ignored these implications of
diversity jurisdiction. I
believe the only exception is William Baxter, who showed that the
principal function of diversity jurisdiction was to ensure that
federal courts would either choose or develop the law to govern
interstate disputes. n178 Baxter collected the Founders' complaints about
state court treatment of citizens of sister states, complaints that
indicate their expectation that federal courts in diversity cases
would not apply discriminatory rules of state law.
n179 Noting that federal courts use local jurors and local
judges, and that for their first hundred and fifty years they followed
local procedures, Baxter concludes that nondiscriminatory rules of law
were to be the principal means by which diversity jurisdiction
protected out-of-state litigants.
n180 Henry Hart, the great federal courts scholar of Currie's
generation, argued on similar grounds that the best single use of the
diversity jurisdiction is to resolve choice-of-law issues between
citizens of different states.
Of course there is more than one
way for federal courts in diversity
[*281] to avoid
unjust state laws. The
worst state abuses were made unconstitutional.
The Constitution expressly forbids state laws that discriminate
against citizens of sister states,
n182 or impair the obligation of contracts,
n183 or make debts payable in paper money or barter.
n184 Laws that were unjust but not unconstitutional could be
avoided in some cases by federal choice-of-law rules that would choose
some other state's law, or in all cases by federal enforcement of the
general common law, which we associate with Swift v. Tyson.
Some of the Founders' remarks
seem to contemplate the general common law;
n186 others plainly contemplated federal choice-of-law rules.
n187 In fact they believed in both.
n188 There was a domain of the general common law, and a domain
of local law, with choice-of-law rules for choosing among the local
law of different jurisdictions. n189 But the increasing diversity of state law, the
erosion of the line between local and general law in an integrated
economy, and disagreement between state and federal courts about the
location of that line n190
eventually rendered the Swift v. Tyson solution inconsistent
with the rest of the constitutional structure.
Independent federal elaboration of general common law presented
a dilemma. Either it
would be binding on state courts and on all transactions, in which
case it would wholly displace state law on matters reserved to the
states by Article I and the Tenth Amendment, or left to the states by
congressional deference; or it would not be binding on state courts
and all transactions, in which case it would create two bodies of law
within each state, each potentially applicable to many of the same
transactions, with resulting uncertainty, forum shopping, and the
related evils denounced in Erie Railroad v. Tompkins. n191
reasons explored more fully in Parts III and IV, federal choice-of-law
rules do not present this dilemma.
One uniform set of federal choice-of-law rules can be binding
on the states and applied to all transactions wherever they may be
litigated. This leads to
no general displacement of state authority across the whole range of
the common law, but only to federal authority over one common law
subject that is inherently interstate anyway. n192 Choice-of-law rules are appropriately made at the
federal level because they resolve conflicts between states, and
neither state's attempt to resolve such a conflict unilaterally has
any claim to legitimacy. Unwillingness
to displace state authority even over choice-of-law rules largely
defeats the policy of the diversity jurisdiction.
The Supreme Court missed this
distinction in Klaxon Co. v. Stentor Electric Manufacturing Co.,
n193 treating choice of law like substantive common law
generally. The result was
to entirely eliminate the benefits of diversity jurisdiction in
choice-of-law cases. Because
Klaxon requires federal courts to follow state choice-of-law
rules, n194 federal
courts must discriminate in exactly the same way a state court would.
If Mary would lose both her cases in state court in Delaware,
she will also lose both her cases in the United States District Court
for the District of Delaware. Federal
courts do indeed discriminate in this way.
n195 The diversity jurisdiction now protects against informal
bias in state courts, but if the state court formally writes hostility
to outsiders into its choice-of-law rules, the federal courts become
equally hostile to outsiders.
The Court was right to conclude
that choice-of-law rules could determine results, and that
choice-of-law rules should therefore be the same in both state and
federal court. Its error
was not in either of these propositions, but rather in two
propositions to which it gave less attention.
It was an error to require the federal court to follow state
choice-of-law rules instead of the other way around, and it was an
error to legitimate discriminatory choice-of-law rules in either
The Constitution requires both
state and federal courts to dispense even-handed justice to citizens
of all states, and the diversity jurisdiction
[*283] is a
prophylactic compliance mechanism.
The first requirement of even-handed justice is uniform rules
of law. Heads-we-win,
tails-you-lose, one rule for our citizens and a different rule for
yours, is inconsistent with equal justice, inconsistent with the core
value of the Privileges and Immunities Clause, and inconsistent with
the purposes of the diversity jurisdiction.
The diversity jurisdiction reinforces the rigor of the
inference we ought to draw from the Privileges and Immunities Clause
alone: The Constitution forbids discrimination in the administration
of justice against citizens of sister states.
Some Partial Responses. -- No interest analyst has
considered the mutually reinforcing structure of the Privileges and
Immunities Clause, the diversity jurisdiction, and the other
guarantees of interstate equality.
But several have considered and responded to parts of the
David Cavers offered the
principle defense of the rule that federal courts should follow state
choice-of-law rules. n196
He feared that federal courts would tend to pursue "uniformity
and certainty" and "a truly national system of choice-of-law
rules," n197 and thus interfere with states' pursuit of their
own interests under the so-called modern approaches to choice of law.
n198 That is, he saw some of the same tension that I see
between the diversity jurisdiction and contemporary choice-of-law
theory. But he started
with his preferred choice-of-law system and asked what that implied
about the diversity jurisdiction.
He did not start with the Constitution and ask what that
implied about choice of law. Moreover,
he considered the diversity jurisdiction in isolation, ignoring the
Privileges and Immunities Clause to which it was so closely connected,
and assuming that the rest of the constitutional structure had no
relevance. He assumed
that there were few constitutional limits on choice of law,
n199 so that federal choice-of-law decisions would not be
binding on state courts. n200
He expressly declined to consider any evidence of the original
purposes even of the diversity jurisdiction.
n201 By ignoring most of the supporting elements of the
constitutional argument, he made the Constitution conform to his
Others have responded to the
Privileges and Immunities Clause objection while ignoring the
diversity jurisdiction objection.
Larry Kramer argues that interest analysis does not
discriminate against non-residents.
[*284] He insists
that what looks like a "brazen desire to favor residents" is
really deference to other states: "By applying its laws only
where doing so directly advances a domestic state interest, a state
leaves room for the laws of other states in cases affecting their
domestic interests." n202
This attempt to relabel
discrimination as deference utterly fails to fit the facts.
When Maryland holds that Del is liable to Mary, it applies its
law to Del as much as to Mary, and in interest-analysis terms, it
affects Delaware's interests as much as Maryland's.
A state does not disprove its brazen desire to favor residents
by deferring in cases where it has no opportunity to favor a resident.
I will believe that one state is deferring to others when
deference imposes costs as well as benefits.
Robert Sedler argues that from
"a perspective of constitutional generalism," minimal
scrutiny of choice-of-law decisions makes sense as a specific case of
post-1937 minimal scrutiny of social and economic regulation.
n203 The error here is to equate the express and specific
provisions of the Privileges and Immunities Clause with the vague and
wholly implied limits of economic substantive due process.
The relevant constitutional category is not economic
substantive due process, but interstate discrimination, where the
Court has never withdrawn to minimal scrutiny.
The Court continues to strike down discriminatory economic
regulation under the Privileges and Immunities, Commerce, and Equal
Protection Clauses. n204 In a remarkable inconsistency, Sedler argues that
"the negative commerce clause absolutely prohibits
discrimination against interstate commerce or out-of-state
interests." n205 If one wants to view choice of law from the
perspective of constitutional generalism, the relevant general
principle is this principle against interstate discrimination.
The Court's changing views on liberty of contract are not on
Brainerd Currie offered the most
revealing analysis of the Privileges and Immunities Clause from an
interest-analysis perspective. He
said that where a state had a law of general applicability, and a
second law that carved out an exception, the state could avoid
discrimination by applying its exceptional law to citizens of states
with the same exceptional law.
n206 If the other state's law were different, the forum could
on the basis of the difference in the foreign litigant's home-state
law, rather than the difference in citizenship.
I doubt that a litigant's home-state law is meaningfully
different from his home state as a basis for discrimination.
But even if we accept that distinction, this alleged concession
is wholly illusory. If
the laws of both states are the same, there is no conflict of laws and
no need for choice of law. If
the laws of the two states are different, Currie would let the forum
discriminate. Within this
strangely defined set of cases, Currie effectively proposed that
states discriminate only when there is opportunity to do so.
More generally, Currie
considered the claim that a state's refusal to protect the citizens of
sister states was based on a rational distinction between those that
it did and did not have an interest in protecting.
That argument assumes the conclusion; it would apply to any
hostile discrimination. To
his great credit, Currie rejected the argument and concluded that
unrestrained pursuit of a state's interest in protecting its own
residents was generally unconstitutional.
n207 That remarkable concession left interest analysis with few
potential applications, but this part of his writings has been largely
ignored. Other interest
analysts continue to repeat, sometimes in italics, that a state can
constitutionally refuse to protect those it has no interest in
The problem with interest
analysis is not one of occasional tension with the Privileges and
Immunities Clause, which might be accommodated by balancing or handled
with exceptions. The
problem is that the first principle of interest analysis is
antithetical to the first principle of the Clause, and antithetical to
the Union. Nothing can
reconcile them. Interest
analysis legitimates the temptation to prefer local litigants, the
very temptation that the diversity jurisdiction and the Privileges and
Immunities Clause were supposed to help us resist.
Contemporary Interest Analysis. -- Fortunately for the
Union, Currie's understanding of state interests was confined to
choice of law, and even there it has been followed only in part.
The theme of enriching domiciliaries still recurs, sometimes
stated openly, n209
veiled in the euphemism of applying the law of the state that
will feel the consequences of the decision.
n210 It still affects the results of cases,
n211 and it is unconstitutional to that extent.
But judges, scholars, and even Currie himself have found all
sorts of interests beyond enriching local residents.
Interest analysts have distinguished protective, compensatory,
and deterrent interests; n212
moral, liberty, and security interests;
n213 altruistic, restrained, and enlightened interests;
n214 and even an interest in attracting tourists by promising
that they will incur little liability for accidents.
n215 The proliferation of interests contributes to a strong
sense of ad hoc chaos, n216
but it also ameliorates the discrimination at the core of interest
territorialism continues to exercise its pervasive influence. n218 The deterrent interest, sometimes called the
interest, is a state's interest in regulating events within its
territory. It is the
interest-analysis label for a limited version of territorialism.
n219 Plaintiffs injured in a state with a generous compensation
system can often invoke either the deterrent interest or the law of
the place of injury, depending on the rhetoric prevailing in that
state's courts, and receive compensation without discrimination based
on citizenship. n220
Far more often than one would infer from the academic literature,
n221 defendants are permitted to rely on the law of the
place where some key event occurred.
n222 The results in such cases are usually correct, but they
are territorial results.
Discrimination persists when
plaintiffs injured in one state seek the benefit of some other state's
more generous law. Suppose
that Maryland chooses to compensate its own citizens injured in
Delaware, but not Delawareans injured in Delaware.
It is hard for even interest analysts to rationalize
application of Maryland law to compensate a Delawarean injured in
Delaware, although some have tried. n223 But if Maryland is not to rule the nation, it has
only two choices: It must either forgo the desire to apply its law to
Marylanders who travel to Delaware, or it must treat Marylanders more
favorably than it treats similarly situated Delawareans.
n224 The proliferation of recognized
interests has not changed the heart of the problem: any reliance on a
state's interest in benefitting its own citizens leads inevitably to
discrimination between those citizens and citizens of sister states.
One final point on the principle
of equal citizens: It is essential to distinguish the discriminatory
desire to benefit the local litigant from neutral reliance on domicile
as a locating factor. Traditional
domiciliary choice-of-law rules, acceptable to territorialists,
distinguish cases on the basis of the domicile of some person or
entity that is the subject of regulation, but they do not distinguish
on the basis of who benefits from the rule.
n225 An example is the rule that estates are administered under
the law of the decedent's domicile.
n226 Under that rule, domiciliary law is applied to the estate
regardless of whether the estate or local heirs are advantaged or
disadvantaged. Such a
rule is consistent with the needs of the Union and with equality for
citizens of sister states, and if it is justified as the most workable
allocation of state authority. We
may think of such a rule as outside the scope of the Privileges and
Immunities Clause, or as a legitimate exception to the Clause; the
important point is that it is wholly consistant with the policies of
the Clause. Applying the
rule that benefits the local litigant is not.
THE PRINCIPLE OF EQUAL STATES
The General Equality of the States
The Constitution assumes,
without ever quite saying so, that the several states are of equal
Constitutional Convention refused to guarantee that all subsequent
states would be admitted on "the same terms" as the original
thirteen, n227 but
there is no evidence that any of the thirteen were to be less than
equal. n228 Every
reference to state authority is to the states generically; no
provision gives more authority to some states than to others.
In all its provisions about the states, the Constitution draws
only one distinction among them: states are listed by name in the
initial allocation of representatives.
n229 But even this was simply a means to achieve approximate
equality of per capita representation pending the first census.
The general guarantee of
equality to newly admitted states was left to another source of
fundamental law: the laws that created new states and joined them to
the Union. The Continental Congress was resolving this issue even as the
Convention met. Virginia
had relinquished its [*289]
land claims north and west of the River Ohio on condition that
new states be created there "having the same rights of
sovereignty, freedom, and independence, as the other states."
n230 In July of 1787, the Continental Congress enacted the
Northwest Ordinance, authorizing creation of three to five states in
this territory, to be admitted "on an equal footing with the
original states in all respects whatever." n231 The First Congress incorporated that guarantee in
an act for governing territory south of the Ohio.
n232 Vermont and Kentucky, the fourteenth and fifteenth states,
were each admitted "as a new and entire member of the United
States of America." n233
Beginning with Tennessee, the sixteenth state, every state admission
act has provided that the new state is admitted "on an equal
footing" with the original states.
n234 The Supreme Court has long treated the equal footing
doctrine as having constitutional significance: "[T]he
constitutional equality of the States is essential to the harmonious
operation of the scheme upon which the Republic was organized."
The Full Faith and Credit Clause
The Constitution itself
expressly provides for the equality of states in the context most
relevant here: it provides for the equal authority of each state's
law. This is the meaning of the Full Faith and Credit Clause:
"Full Faith and Credit shall be given in each State to the public
Acts, Records, and judicial Proceedings of every other State."
This clause is comprehensible
only if one assumes a background set of choice-of-law rules. In the Full Faith and Credit Clause, and in the
contemporaneous Rules of Decision Act,
n237 the Founders directed state and federal courts to apply
the applicable law of other American jurisdictions.
They seem not to have seen the ambiguity entailed in that
provisions assume that it is obvious when state law applies and which
state's law applies. The Founders saw no ambiguity because they understood the
instruction in light of the familiar
rules then applied in English and American courts.
They assumed that these rules would determine which state's law
applied, and that the Constitution and the statute would require
courts to apply the law of that state.
This is how the Full Faith and
Credit Clause has always been understood with respect to judgments.
Federally enforced conflict-of-law rules determine whether a
state court had jurisdiction. If the first court had jurisdiction, its judgment is binding
on all other states; if not, all other states are free to ignore it.
n238 As a simple matter of constitutional text, the Clause must
have the same meaning with respect to rules of law.
And that straightforward textual reading also makes policy
sense of the Clause.
The Scope of the Clause. -- The Full Faith and Credit
Clause extends to all sources of state law.
It is clear that "public Acts" means statutes. James Wilson and William Johnson said as much on the floor of
the Convention, n239
the First Congress so understood it,
n240 and the Supreme Court has so held.
n241 "Act of the legislature" was common usage in
1787 as well as today, n242
and there is substantial consensus on the point.
It is only a little less clear
that the Clause includes case law.
Case law is most obviously included as "Judicial
although some scholars have argued that case law is
or even "public Acts."
n246 Ralph Whitten doubts that case law was within the original
scope of the Clause, n247
but even he agrees that the modern view that
[*291] common law
is created rather than discovered may have brought case law within the
policy of the Clause and within the legitimate range of originalist
interpretation. n248 As the Supreme Court recognized in Erie
Railroad v. Tompkins, n249
it is of no federal concern whether state law is embodied in statutes
or cases; each is of equal authority.
n250 These interpretations of the Clause make sense.
Together, they mean that each state must give full faith and
credit to the law of every other state, and that the form of the
sister state's law is irrelevant.
The principal dissent from these
propositions is a 1957 article by Kurt Nadelmann. Nadelmann agrees that "public Acts" means statutes,
but he insists that giving full faith and credit to statutes is such a
bad idea that the Founders could not have meant what they said.
n251 But the language that he would reject did not slip in
inadvertently; the issue was squarely considered in yes-or-no votes.
As the clause emerged from committee, it required Congress to
provide for the effect of sister-state judgments, but it appeared to
be merely precatory with respect to acts:
Full faith and credit ought
to be given in each State to the public acts, records, and
Judicial proceedings of every other State, and the Legislature shall
by general laws prescribe the manner in which such acts, Records,
& proceedings shall be proved, and the effect which Judgments
obtained in one State, shall have in another.
Morris moved to amend to delete the reference to judgments and
substitute "thereof," so that the clause would read:
Full faith and credit ought to
be given in each State to the public acts, records, and Judicial
proceedings of every other State, and the Legislature shall by general
laws prescribe the manner in which such acts, Records, &
proceedings shall be proved, and the effect thereof.
The amendment thus provided that
Congress "shall" prescribe the effect of "acts,
Records, and proceedings," and not merely the effect of [*292] Judgments.
The amendment was so understood by both supporters and
opponents who spoke to it.
Mr. Wilson remarked, that if the
Legislature were not allowed to declare the effect the
provision would amount to nothing more than what now takes place among
all Independent Nations. Docr.
Johnson thought the amendment as worded would authorize the Genl.
Legislature to declare the effect of Legislative acts of one State, in
another State. Mr. Randolph . . . was for not going farther than the Report,
which enables the Legislature to provide for the effect of Judgments.
three of these speakers had served on the committee that drafted the
clause. n255 The
amendment then passed, six states to three.
Madison then moved to substitute
"shall" for "ought to," and "may" for
the first "shall," so that the revised clause would read:
Full faith and credit shall
be given in each State to the public acts, records and Judicial
proceedings of every other State, and the Legislature may by
general laws prescribe the manner in which such acts records &
proceedings shall be proved, and the effect thereof.
amendment was agreed to without a count of states, and the Full Faith
and Credit Clause as amended was then agreed to without a count of
states. The effect of
Madison's amendment was to make the clause self-executing, commanding
full faith and credit in the constitutional text and making
congressional action discretionary, instead of commanding
congressional action and leaving the clause dependent on
implementation of the command to Congress.
The Committee of Style subsequently broke the clause into two
sentences and substituted "Congress" for "the
and the final version of the clause was adopted in the final vote on
the whole Constitution. n258
On the question whether there
exists a self-executing obligation to give full faith and credit to
sister-state acts, this is about as clear a drafting record as one can
hope to find. The
amendment extending the effects of full faith and credit to
legislative acts passed after Johnson's clear explanation and over
Randolph's clear objection, presumably for something like the reason
stated by Wilson. Nadelmann
is simply [*293]
wrong to claim that there is no evidence the Founders meant
what they said.
Even if the debate were less
clear, Nadelmann's claim that there is no evidence of intention would
depend on a mistaken approach to constitutional interpretation -- that
the ratified constitutional text does not count unless someone gave a
speech elaborating its meaning. This
approach elevates silence in secondary sources to priority over
ratified provisions in operative legal texts.
Reasoning from the appearance of silence is especially
dangerous with respect to the Constitutional Convention, because we
have a record of less than ten percent of what was said there.
Nadelmann also cites the 1790
version of the Full Faith and Credit Act as secondary evidence of the
original understanding. He
argues that the First Congress refrained from requiring full faith and
credit to statutes, and he infers that Congress must not have
understood the Constitution to require such credit either.
n260 This argument depends on the dubious premise that
congressional silence can override constitutional text.
Such an argument would make sense only if the constitutional
text were unusually ambiguous and the inference from silence unusually
strong. But here the
Constitution is not ambiguous, and the statute is.
If the constitutional clause is self-executing and legislation
is optional, which is what the constitutional text plainly says, then
Congress was not obliged to speak and congressional silence means
nothing. Congress might
be expected to act if it felt capable of specifying further details,
but whether to paraphrase the self-executing constitutional clause was
a discretionary choice with little at stake.
Even if the statute failed to specify the effect of statutes,
nothing about the Constitution would follow from that.
Moreover, Nadelmann may misread
the statute. He follows
the conventional wisdom in asserting that the Act did not specify the
effect of sister-state statutes before the recodification of 1948.
n261 But the conventional wisdom may be wrong, as the Supreme
Court once held. n262
An explanation requires a careful analysis of the original Act, which
reads as follows:
An Act to prescribe the mode in
which the public Acts, Records, and judicial Proceedings in each
State, shall be authenticated so as to take effect in every other
[*294] Be it
enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That the acts of the
legislatures of the several states shall be authenticated by having
the seal of their respective states affixed thereto: That the
records and judicial proceedings of the courts of any state, shall
be proved or admitted in any other court within the United States, by
the attestation of the clerk, and the seal of the court annexed, if
there be a seal, together with a certificate of the judge, chief
justice, or presiding magistrate, as the case may be, that the said
attestation is in due form. And
the said records and judicial proceedings authenticated as
aforesaid, shall have such faith and credit given to them in every
court within the United States, as they have by law or usage in the
courts of the state from whence the said records are or shall be
the title and the enacting clause, this statute has three substantive
clauses. For convenience,
I shall refer to them as the legislative authentication clause, the
judicial authentication clause, and the effects clause.
The interpretive question is
whether the italicized reference to "the said records and
judicial proceedings authenticated as aforesaid" in the effects
clause includes only the prior reference to "the records and
judicial proceedings of the courts" in the judicial
authentication clause, or whether "the said records" also
includes the prior reference to "acts of the legislature" in
the legislative authentication clause.
The effects clause refers only to the "said records and
judicial proceedings" and does not mention "acts." The
"said records" is plausibly read as including only those
records already referred to in the same terms, that is, to "the
records and judicial proceedings of the courts." This reading is
further supported by Professor Crosskey's demonstration that
"records" was often used to refer to precedents -- to the
records of prior judicial decisions.
But "records" was also
used, with equal technical accuracy, to refer to legislative records.
n265 On this reading, the "records . . . authenticated as
aforesaid" would refer to everything in either authentication
clause -- to the "acts of the legislature" as well as to the
"records . . . of the courts." The trouble with this reading
is that it would have been easy to say "acts, records, and
judicial proceedings" if that were what Congress meant.
Nadelmann's reading is also
"records" meant only judicial records, then the phrase
"of the courts" in the judicial authentication clause is
wholly redundant. If
"records" were used in its more [*295] general
sense, then "of the courts" confined it to judicial records
in the authentication clauses, where the source of the record
mattered, and the absence of that modifier let it have its full
meaning in the effects clause, where legislative and judicial records
were not distinguished. This
reading is also consistent with the title of the act, which plainly
suggests without distinction that "public Acts, Records, and
judicial Proceedings" shall "take effect in every other
This reading also makes policy
sense. It avoids an
anomalous distinction between the scope of the implementing statute
and the scope of the implemented clause.
It avoids an anomalous statutory distinction between full faith
and credit to rules of law in state judicial precedent and full faith
and credit to rules of law in state statutes.
Swift v. Tyson read such a distinction into the Rules of
Decision Act, n266 but Swift has been rejected as inconsistent
with the constitutional structure.
For all these reasons, both
textual and structural, I am inclined to believe that the Full Faith
and Credit Act specified the effects of state statutes from the
beginning. If I am right,
then the implementing statute of the First Congress is wholly
consistent with the self-executing constitutional clause.
At worst, the statute is ambiguous; the First Congress might
have left an odd but meaningless silence.
n268 Whatever the statute once said, the text of the
Constitution requires full faith and credit to sister-state statutes.
And since 1948, the Act has unambiguously included sister-state
statutes in the effects clause as well as in the authentication
clauses. n269 Both
the Constitution and the Act now require full faith and credit to
statutes. I think the
First Congress agreed, but whatever the First Congress thought, the
scope of the Clause is clear.
The Meaning of Full Faith and Credit. -- The principal
argument is not over the scope of the Clause, but over the meaning of
full faith and credit. What
does it mean to give full faith and credit to a statute or a rule of
law? The dominant view is that the phrase cannot be taken literally,
and therefore, it need not be taken seriously at all.
The Supreme Court once said, and many interest analysts claim
to believe, that full faith and credit to acts means that in any case
of conflicting laws, California must apply Texas law and Texas must
apply California law. n270
This reading would indeed be too absurd to impute to the Founders, but
no one has ever argued for it. It
was a straw man from [*296]
its creation. The only reason to read the Clause in this absurd way is to
escape the constitutional text altogether -- to legitimate
interpretations that are admittedly not based in the text.
To give full credit to a law
most naturally means to treat it as law -- as a judicially enforceable
norm of human behavior with judicially enforceable consequences for
breach. The additional
requirement of "full faith and credit" appears to be
simply a lawyers' redundancy; "faith and credit" was a
phrase used in common law cases on recognition of judgments.
n271 But the "faith" requirement also suggests that
states must act in good faith in determining the credit due to
The most important word in the
Clause is "full." A state does not owe some credit, partial
credit, or credit where it would be wholly unreasonable to deny
credit, which seems to be the Supreme Court's current interpretation.
n272 Rather, each state owes full faith and credit to
the law of sister states. Full
faith and credit is what a state accords its own law.
Full faith and credit is the maximum possible credit; it
is conceptually impossible to give faith and credit that is more than
full. Thus, the Clause is
most plausibly read as requiring each state to give the law of every
other state the same faith and credit it gives its own law -- to treat
the law of sister states as equal in authority to its own.
This requirement of equal credit
to sister-state law was also the original congressional understanding
of the Clause. The
original implementing statute provided that state records and judicial
proceedings "shall have such faith and credit given to
them in every court within the United States, as they have by law or
usage in the courts of the state from whence the said records are or
shall be taken." n273
Without change of meaning, the current version requires "the same
full faith and credit" as in the originating state.
n274 The statute makes the constitutional corollary explicit:
sister-state law is to have the same full faith and credit in the
courts of either state. If
a California law would govern a controversy in a California court,
then Congress says that law should govern the same controversy in a
Texas court. And vice
versa. This generally ignored statute says that each court should
apply the same law. It is
the policy of Erie and the diversity jurisdiction again; the
case should come out the same way no matter where it is filed.
simultaneously apply the conflicting law of two states is impossible;
to require each state to apply the law of the other is absurd; and to
let each state apply its own law repeals the Clause.
Sister-state law cannot be equal in any of these senses.
The requirement that each state apply the same law is
comprehensible only on the assumption that there are occasions when
the law of a sister state applies and occasions when it does not.
The Full Faith and Credit Clause thus assumes the existence of
choice-of-law rules, but it does not specify what those rules are.
n276 The equality of sister-state law implies some limits on
the content of those rules, but I have not yet explored those limits.
n277 At this point in the argument, we do not know anything
about the content of choice-of-law rules, but we know that only a
single determinate set of choice-of-law rules can implement the Full
Faith and Credit Clause.
In this way, the Clause is like
the contemporaneous Rules of Decision Act, which tells federal courts
to apply state law in cases where it applies, but does not say when
state law applies. n278
The Rules of Decision Act was understood to codify existing
choice-of-law rules and the duty of federal courts to determine which
state's law applies. n279
In one early draft of the Full
Faith and Credit Clause, the choice-of-law prerequisite was made
explicit. Edmund Randolph
moved the following clause, which was referred to committee along with
Whenever the Act of any State,
whether Legislative[,] Executive[,] or Judiciary shall be attested
& exemplified under the seal thereof, such attestation and
exemplification, shall be deemed in other States as full proof of the
existence of that act -- and its operation shall be binding in every
other State, in all cases to which it may relate, and which are
within the cognizance and [*298]
jurisdiction of the
State, wherein the said act was done.
The committee apparently worked
from a different draft, proposed by Governeur Morris, which omitted
much of the detail in Randolph's draft and instead authorized Congress
to enact further detail. The
full Convention did not restore Randolph's detail when it amended the
clause to make it self-executing.
It is usually dangerous to
assume that an adopted provision means the same thing as some
unadopted draft. But in
this case, that seems by far the most plausible interpretation.
Randolph's draft limited the application of sister-state law to
cases "within the cognizance and jurisdiction" of the sister
state. The omission of
that limitation cannot possibly mean that sister-state law is to be
applied without limitation, even to cases beyond the jurisdiction of
the sister state. No one thinks that would be a sensible provision, and surely
no one would have thought so in 1787.
The omission of Randolph's choice-of-law language can only mean
that the choice-of-law limitation was thought to be obvious, so
obvious that it was not necessary to state it.
The Clause presupposed choice-of-law rules and left detailed
specifications of those rules to the courts or to Congress.
prerequisite to full faith and credit was also the original judicial
understanding of the Clause. The
issue arose frequently with respect to judgments, because some of the
states indulged in dubious jurisdictional practices in the early
national period. At least
before 1795, n281
Massachusetts would enter judgments for large sums on the basis of an
attachment of a trivial item, such as a blanket or a handkerchief.
The statute required notice only to the third party found in
possession of the attached property.
n282 Sometimes a summons was served out of state, which gave
notice but could not confer jurisdiction under the rules of the time.
n283 Stranger still, the attached property did not even have to
belong to defendant. There
is evidence that "reputed property" would suffice,
n284 and that the attached property could actually belong to
plaintiff, "who would gratuitously bestow, in [defendant's]
absence, an eagle, or a blanket, or a spoon, for the purpose of
obtaining a judgment." n285 There was reason for Justice Johnson's fear that
states might "pass the most absurd laws" on jurisdiction.
[*299] Many early
cases grappled with the problems raised by such judgments, and the
modern rule emerged rather quickly.
In Mills v. Duryee, decided in 1813, the Supreme Court
held that sister-state judgments are conclusive;
n287 somewhat later, it accepted the lower courts' rule that
the sister-state court must have a basis for jurisdiction that other
courts are obliged to recognize.
n288 Until Mills, some judges simply said that
sister-state judgments were conclusive, and reserved opinion or
expressed no view on the effect of judgments entered without
some said that sister-state judgments were conclusive on the merits
but not if entered without jurisdiction;
n290 some said that judgments entered without jurisdiction were
not conclusive, and expressed no view on judgments entered with
Only a few judges had said that sister-state judgments were not
conclusive on the merits, usually for fear that judgments entered
without jurisdiction could not be distinguished from any other
judgment, n292 but
occasionally because of a more general willingness to re-examine the
merits. n293 Even
in New York, where a slim majority held that sister-state judgments
were not [*300]
the merits could not be re-examined "after the question has been
once fairly litigated and decided."
The same issue arose in the
smaller number of early cases over full faith and credit to
sister-state acts. Several
judges said that sister-state acts were controlling if the case were
within the sister-state's legislative jurisdiction.
n296 But one judge, after concluding that the sister-state's
law did not apply to the case before him, went on to say that the
Articles of Confederation did not require him to give effect to
sister-state laws anyway. n297
The Supreme Court did not
squarely speak to this issue until much later.
Then the Court held that choice of law is prerequisite to full
faith and credit: Maryland owed no faith and credit to laws of New
York, Ohio, and Pennsylvania exempting their securities from taxation,
as applied to securities owned by a resident of Maryland.
The Court said that "[n]o state can legislate except with
reference to its own jurisdiction.
One State cannot exempt property from taxation in
The choice-of-law dispute was framed in terms of the "situs"
of the debt, and determining that situs was "the only Federal
question" in the case.
Six years later the Court said
that "without doubt" the Full Faith and Credit Clause:
implies that the public acts of
every state shall be given the same effect by the courts of another
state that they have by law and usage at home.
This is clearly the logical result of the principles announced
as early as 1813 in Mills v. Duryee and steadily adhered to
ever since. n300
These early judicial
interpretations reinforce the drafting history and the structural
logic of the Clause: It requires full faith and credit to
law selected under choice-of-law rules that are presupposed but not
codified. Where are these
rules to come from? One
possible source of choice-of-law rules is statute.
The Constitution expressly grants Congress power to specify the
"Effect" of sister-state law,
n301 and almost everyone agrees that that includes power to
specify choice-of-law rules. n302 But Congress has specified only that both states
should apply the same law. Neither
the Constitution nor the statute specifies which law applies to which
Failing further congressional
action under the Effects Clause, federal courts are obliged to specify
choice-of-law rules under the constitutional clause and the statute.
n303 States must apply the law of sister states when it
sister-state law applies is a federal question, and each state is
obliged to give the same answer to that federal question.
For the federal courts to answer that question, and to enable
the state courts to answer it, they must elaborate a set of federal
choice-of-law rules, just as they have elaborated jurisdictional rules
to implement full faith and credit to judgments.
Failing further federal
specification from either Court or Congress, what the Full Faith and
Credit Clause requires of its own force is that each state apply
sister-state law where it applies, and that each state act even
handedly and in good faith in identifying such cases.
Texas must apply California law when it applies, and Texas must
treat California law as equal to its own in deciding whether it
applies; California owes the same duties to Texas.
If both states proceed in good faith, they should generally
reach the same conclusion and apply the same law, although any human
system will fall short of this ideal.
If we take seriously the text of the Full Faith and Credit
Clause, this is what it requires.
The Evidentiary Interpretation. -- Ralph Whitten has
offered the most serious argument for a minimalist interpretation of
full faith and credit. He
argues, with some support in eighteenth century usage, that the
requirement of full faith and credit is merely a rule of evidence.
n304 In his view, the Clause requires states to admit
sister-state acts and judgments in evidence, as proof that the act was
enacted or that the judgment was entered -- and nothing more.
n305 He argues that full faith and credit is not a rule of
conclusiveness; that is, it never requires
[*302] courts to
give conclusive effect to an act or judgment once proved.
Having admitted the act or judgment in evidence, the effect of
the act or judgment is left to the common law as interpreted by the
receiving court. Only
Congress has power, under the Effects Clause, to require the receiving
court to give some effect to the sister-state act or judgment.
Working out the implications of
this proposition entangles Whitten in extraordinary difficulties.
Whitten believes that Congress has never exercised its power
under the Effects Clause -- that because the language of the Full
Faith and Credit Act tracks the Constitution, the statute could also
be satisfied by admitting the sister-state act or judgment into
evidence and then ignoring it.
n306 But the Supreme Court rejected this interpretation of the
Act in Mills v. Duryee.
n307 Justice Story's opinion for the Court said that "we
can perceive no rational interpretation of the act of congress, unless
it declares a judgment conclusive."
n308 The Court has never since departed from that rule,
n309 I think that no other modern scholar has questioned it,
and Whitten would accept it as stare decisis.
n310 Accepting Mills requires Whitten to argue that
"full faith and credit" in the statute is about the effect
of the judgment, but the same phrase in the Constitution is only about
evidence of the judgment. n311
Whitten is also forced to say
that "the statutory requirement of full faith and credit to
public acts [of sister states] should be ignored," because it
makes no sense. n312
He finds the statute senseless because he subscribes to the straw man
that it would require the forum always to apply the law of some other
state. This effect
follows, in his view, from acceptance of Mills. Mills
involved full faith and credit to a judgment, but as Whitten appears
to recognize, its reasoning is equally applicable to sister-state
Whitten's insistence on ignoring
the statute with respect to sister-state acts also requires acceptance
of the view that the single statutory use of "full faith and
credit" specifies the effect of judgments, but merely evidentiary
admissibility -- or perhaps nothing at all -- with respect to acts.
The Supreme Court has never suggested such a distinction.
[*303] In recent
times the Court has minimized the occasions on which sister-state acts
are entitled to full faith and credit, but when the Clause applies, it
is still a rule of conclusiveness.
One final contradictory premise
is essential to Whitten's interpretation.
He insists that full faith and credit cannot be read against
the background of conflict-of-law rules.
Thus, full faith and credit presents an unattractive
all-or-nothing choice: either it makes sister-state law and judgments
conclusive without regard to legislative or judicial jurisdiction, or
it is satisfied by admitting sister-state law and judgments in
evidence, without giving them any weight or effect.
Full faith and credit means either far too much or far too
little, but it cannot mean anything sensible between these extremes.
Whitten's reason is that the words "faith" and
"credit" were not used in the eighteenth century to describe
conflict-of-law rules. n315
But as argued above, the
Founders and early American courts assumed that unless a state had
jurisdiction under conflict-of-law rules, its judgments and laws were
not entitled to full faith and credit.
Indeed, they had to assume this in order to make any sense of
the Clause. n316 From the very beginning, courts refused full faith
and credit to judgments entered without jurisdiction. n317 And, Whitten insists that this is how the Full
Faith and Credit Act must be read once he accepts Mills v. Duryee.
n318 So Whitten's final position is that full faith and credit
in the Constitution is merely a rule of evidence, because the phrase cannot
be read in light of conflict-of-law rules; that full faith and credit
in the statute, with respect to judgments, is a rule of conclusive
effect that must be read in light of conflict-of-laws; and that
full faith and credit in the statute, with respect to acts, is a rule
of conclusive effect that must be ignored because it cannot be
read in light of conflict-of-law rules.
Only the most compelling
evidence of original meaning should lead us to accept an argument that
entails so many paradoxes and contradictions, and that culminates in
an explicit appeal to ignore an act of Congress.
Whitten's evidence of eighteenth century usage is not
frivolous, but neither is it persuasive.
He demonstrates that eighteenth century lawyers and judges used
the terms "faith" and "credit" to discuss the
weight of various items of evidence, including official records, but
that they also used these terms to describe the effect of judgments
and other records in subsequent proceedings.
n319 He also shows that eighteenth century lawyers were
concerned with the problem of how to
foreign judgments or acts.
n320 It would not be surprising if they sometimes discussed
this problem in terms of the faith or credit to be given to the
proffered evidence of the judgment or act, but Whitten offers no clear
example of that usage.
Most important here, Whitten
shows that "faith" and "credit," especially with a
strong modifier such as "full," "entire," or
"implicit," were often used to describe the conclusive
effect of a judgment or other legal record.
n321 Thus, he repeatedly concedes that "a conclusive
effect on the merits, or res judicata effect, could be communicated by
the command, 'full faith and credit shall be given.'"
n322 But he thinks that is not the most likely meaning.
Nadelmann reviews much of the same evidence and finds it
Considered only in terms of
eighteenth century usage, Whitten's interpretations of full faith and
credit are at least possible. But
considered in light of the constitutional structure, the case for
conclusive effect subject to conflict-of-law rules is far stronger
than either of Whitten's implausible readings.
Even the usage evidence tilts
against Whitten's claim. The
complete phrase "full faith and credit" appears not to have
been used prior to the Articles of Confederation, and Whitten offers
not a single example of a court using "full" or
"entire" faith or credit to describe anything less than
conclusive effect. The
bulk of Whitten's evidence shows that foreign judgments were not
conclusive in English courts in the late eighteenth century.
n324 But few of the cases he offers to illustrate this rule use
the terms "faith" or "credit," so these cases cast
no light on the question of usage. They prove the common law rule for French and Russian
judgments, but they provide no reason to believe that the Full Faith
and Credit Clause codified that rule for American states.
As James Wilson's successful argument at the Constitutional
Convention suggests, the Clause was designed to require "more
than what now takes place among all Independent Nations."
n325 To formally admit the law as evidence but to give it
little or no substantive effect is not to give it full credit; it is a
clever way of giving little or no substantive effect is not to give it
full credit; it is a clever way of giving little or no credit.
Even so, there was a sufficient
kernal of plausibility to Whitten's argument that some American
lawyers offered it, and a few judges accepted it, in early cases
interpreting full faith and credit.
n326 For judges worried that a rule of conclusiveness would
extend even to judgments [*305]
entered without jurisdiction, Whitten's evidentiary theory was
at least colorable. But
most judges rejected the evidentiary theory, some denouncing it as
Because Whitten himself refuses
to distinguish lack of jurisdiction from any other error, he treats
any willingness to reconsider jurisdiction as supporting his theory.
But this misreads the cases.
A majority of judges reads conflicts principles into the Clause
from the beginning. These
judges read "full faith and credit" to mean conclusive
effect, but they insisted that a judgment entered without jurisdiction
was not entitled to faith and credit.
Whitten also claims that Mills
and many of the other cases requiring conclusive effect relied on the
Full Faith and Credit Act rather than the Constitution.
I think he exaggerates this; some lawyers and judges relied
directly on the Constitution,
n329 and others assumed that the statute was merely a more
explicit statement of what the Constitution already required.
n330 But in any event, reliance on the statute does not imply
anything about the Constitution.
Whitten fails to note that the Constitution probably did not
apply to Mills or any other case filed in federal court.
The constitutional clause applies "in each state,"
which may plausibly be read as binding only state courts.
But the statute applies in "every Court within the United
States," which was necessarily read as including federal courts. n331 Even in state courts, there was no need to reach
the constitutional issue if the statute sufficed.
Nothing in Whitten's evidence
changes the apparent meaning of the constitutional text.
Each state owes full credit, equal to the credit it gives its
own law, to the law of sister states.
This obligation is comprehensible if, and only if, a
determinate set of federal choice-of-law rules identifies the
applicable state law.
The Founders' Understanding of Choice of Law. -- Robert
Sedler offers a very different historical attack on this reading of
the Clause. He says the
Constitution cannot speak to choice of law because Anglo-American law
had no concept of choice of law in the time of the Founders. n332 On this point he is simply mistaken.
His claim had been refuted before he ever made it, directly by
Leonard Goodman n333
and indirectly by Alexander Sack.
n334 And Goodman did not even marshall all the evidence. There are choice-of-law cases from before the Constitution on
both sides of the Atlantic, and the Founders made explicit
choice-of-law arguments in the drafting and ratification debates.
The clearest indication that the
Founders thought about choice of law in connection with the Full Faith
and Credit Clause is Randolph's draft, which contained an explicit
choice-of-law provision. n335
That draft was offered as a motion on the floor of the Convention, and
referred to the committee charged with drafting the clause.
Hamilton invoked choice-of-law
principles to explain why state courts would have concurrent
jurisdiction over federal claims.
State courts could apply federal law just as they already
applied foreign law:
The judiciary power of every
government looks beyond its own local or municipal laws, and in civil
cases lays hold of all subjects of litigation between parties within
its jurisdiction, though the causes of dispute are relative to the
laws of the most distant part of the globe.
Those of Japan, not less than of New York, may furnish the
objects of legal discussion to our courts.
John Marshall appears to have
made the point even more explicitly in the Virginia ratifying
convention. In the course
of a multi-point attack on the diversity jurisdiction, Patrick Henry
apparently asked what law would apply in diversity cases.
n338 Marshall rose to answer:
[*307] By the
laws of which state will it be determined? said he.
By the laws of the state where the contract was made.
According to those laws, and those only, can it be decided.
Is this a novelty? No; it is a principle in the jurisprudence
of this commonwealth. If
a man contracted a debt in the East Indies, and it was sued for here,
the decision must be consonant to the laws of that country.
Suppose a contract made in Maryland, where the annual interest
is at six per centum, and a suit instituted for it in Virginia; what
interest would be given now, without any federal aid?
The interest of Maryland most certainly; and if the contract
had been made in Virginia, and suit brought in Maryland, the interest
of Virginia must be given, without doubt.
It is now to be governed by the laws of that state where the
contract was made. The
laws which governed the contract at its formation govern it in its
There are choice-of-law
decisions in the earliest American reports,
n340 some of which stated broad choice-of-law rules,
n341 and many [*308]
of which were argued or decided by active participants in the
debate over the Constitution in general and the Full Faith and Credit
Clause in particular. Alexander
Roger Sherman, n343
Oliver Ellsworth, n344
and John Rutledge n345
were leading Founders who argued or decided one or more reported
choice-of-law cases. Jared Ingersoll, a delegate to the federal convention from
Pennsylvania, is almost certainly the Ingersoll who argued at least
three reported choice-of-law cases in 1788 and 1789. n346 Richard Law,
n347 Thomas McKean,
n348 and James Duane
n349 were each active delegates to their state ratifying
conventions, and each had decided one or more reported choice-of-law
cases. Law and Duane had
served together on the committee that proposed the Full Faith and
Credit Clause in the Articles of Confederation.
George Bryan, a leading Pennsylvania anti-Federalist, also
decided choice-of-law cases.
n351 Early American cases cite Blackstone's matter-of-fact
reference to choice of law,
n352 Lord Kames's lengthy treatment of choice of law in the
1767 edition of his equity treatise,
n353 and Ulrich Huber's influential Dutch treatise on choice of
law. n354 The
reported cases, the literature cited, and the arguments of Hamilton,
Madison, and Marshall all show that the new conflicts learning had
crossed the Atlantic before the Constitution.
The Founders' ideas about choice
of law came to America from England.
American lawyers and judges of course used English books and
English precedents. Slave
owners and traders had business reasons to know about English
decisions on choice of law in slave cases;
n355 American merchants had similar reasons to know about
English decisions on choice of law in bankruptcy.
n356 Lords Hardwicke and Mansfield, whose overlapping
judgeships ran continuously from 1733 to 1788,
n357 are properly credited with creating English choice-of-law
rules. n358 But
English courts had grappled with choice-of-law problems in classic
case-by-case method for more than a century before that.
Alexander Sack found a prescient choice-of-law case decided in
1611 n359 and, by
the late seventeenth century, a settled practice of
[*310] choice of
law in cases subject to conflicting laws of the many English colonies
and dominions. n360 Chief Justice Holt commented in 1705 that the law
of Jamaica was consulted "every day . . . before committees of
appeals from thence."
n361 Sack also reviews an increasing flow of eighteenth-century
English cases applying law from foreign nations not subject to the
English crown. n362
This widespread background of
choice-of-law rules helps confirm the apparent meaning of the Full
Faith and Credit Clause and the Rules of Decision Act.
History is clear that the Founders' generation had a concept of
choice of law, that they applied it in judicial decisions, and that
they brought it to bear in arguments over ratification.
Their confidence in the obvious applicability of a single
state's law may have been the naive assumption of a generation that
had thought only a little about choice of law.
But not to see the difficulties of a subject is very different
from never having heard of it. Even
if they oversimplified, choice of law was part of what the Founders
took for granted at the Convention.
Implications for Choice of Law
The Full Faith and Credit Clause
contains both affirmative and negative implications for choice of law.
The affirmative implication is that Congress or the federal
courts should specify choice-of-law rules and that state courts should
follow those rules, to the end that the same law will be applied no
matter where a case is litigated.
The negative implication is that no state may deny the equal
status of sister-state law. The
duty to treat sister-state law as equal in authority to the law of the
forum does not depend on whether Congress or the federal courts
specify a determinate set of choice-of-law rules.
The equality of sister-state law should be enforced even if
detailed choice-of-law rules are left to state courts.
The equality of sister-state law eliminates several modern
approaches to choice of law, and one traditional approach.
Forum Law. -- Most obviously, any preference for forum
law violates the Full Faith and Credit Clause.
Brainerd Currie's original interest analysis proposed to apply
forum law to all "true conflicts."
n363 This proposal rejected the core of the Full Faith and
Credit Clause in the same fundamental way that his analysis of state
interests rejected the core of the Privileges and Immunities Clause.
Currie's bald preference for forum law meant that in so-called
true conflicts, neither state gave any credit whatever to sister-state
law. It also meant that
two interested states would never apply the "same" law,
because whichever [*311]
state acquired jurisdiction would apply its own law.
This created substantial incentives for forum shopping.
But most important, it meant that people could not know the law
applicable to their conduct until a lawsuit was filed.
Some modern interest analysts retain a rebuttable presumption
in favor of forum law; n364
some retain an apparently absolute preference for forum law in
n365 some would eliminate forum preference all together.
Eliminating forum preference
altogether is the only constitutional solution.
The forum cannot apply its own law in all cases, or in all
cases of true conflicts. The
forum cannot apply its own law in all cases with which it has
reasonable contacts, or all cases in which it has an interest, or all
cases in which no one would be unfairly surprised.
If an employer hired black applicants only when they were
clearly superior to the white applicants, and hired whites whenever
the comparison between applicants was fairly debatable, we would
easily conclude that the employer discriminated.
Similarly, when a forum prefers its own law in fairly debatable
choice-of-law cases, it is discriminating against the law of sister
states and denying the equal status of sister-state law.
Whatever criteria are invoked to identify close or debatable
cases, forum law cannot be the tiebreaker.
Under the Full Faith and Credit Clause, the identity of the
forum is irrelevant to choice of law.
The traditional rule that the
law of the forum applies to issues of procedure may be conceived of as
an exception to this rule, or as simply beyond the scope of the rule. n367 Forum law applies to most procedural issues not
because all ties go to the forum, or because the forum can apply its
own law when it benefits from doing so, or because of any other
general preference for forum law.
Rather, forum law applies because that is the neutral
consequence of a sensible territorial choice-of-law rule.
Most procedural events occur within the territorial
jurisdiction of the forum, litigants do not have to comply with
procedural rules before the forum is known, and no other state has so
plausible a claim to regulate those events.
A general rule that the law of the forum governs procedure does
not undermine the principle of equal states.
n368 Of course, all three constitutional principles apply to
resolution of difficult cases at the borders of substance and
procedure and to extraterritorial
issues such as depositions in a jurisdiction other than the forum.
"Better Law" and Its Variations. -- Another
modern approach invalidated by the Full Faith and Credit Clause is to
apply the "better law."
n369 Texas cannot constitutionally decide that its law is
better than California's. To
do so is to deny full faith and credit in a fundamental sense: it is
to reject California's law as unworthy of credit.
The law of California and the law of Texas are of equal status,
both decreed by states with equal claims to limited sovereignty.
Even some interest analysts agree that neither state would
concede that the other's law is better. n370
There is no higher authority, no lawgiver in the sky, empowered to
decide which state's law is better.
Nor can Congress or the Supreme Court decide which law is
better on a matter committed to the states.
Such a decision would violate the allocation of authority
between the state and federal governments.
n371 A constitutional approach to choice of law can no more
consider which law is better than it can consider which state's
citizen will benefit.
Variations on "better
law" are subject to the same objection.
A court cannot reject sister-state law as
"aberrational" or "anachronistic"
n372 or "archaic and isolated."
n373 To appeal to "widely adopted law"
n374 is to repeat the mistake corrected in Erie Railroad v.
-- to invoke a general common law not derived from any sovereign.
If each state is equal in authority to the other forty-nine,
then no state is required to conform its law to that of the others, or
to follow the trend that other states find more in keeping with the
Finally, the principle of equal
states forbids states to prefer the law under which plaintiff
prevails, n376 or
for that matter, the law under which defendant prevails.
Most such preferences are a special case of
rules, because they are motivated by a belief that the preferred law
is better. n377 But
whatever the motivation, such preferences violate the principle of
equal states. A court that prefers the pro-plaintiff rule gives more faith
and credit to the law of pro-plaintiff states, and no faith and credit
to the law of pro-defendant states.
What the Constitution requires is full and equal faith and
credit to the law of all sister states.
Traditional approaches to choice
of law contain an even more offensive variation on better-law
approaches. This is the
rule that the forum can reject sister-state law on the ground that it
too deeply offends the public policy of the forum.
n378 This is the extreme case of better-law rules.
Texas would reject California law not just because Texas law is
better, but because California law is so offensive that it cannot be
tolerated in a Texas court. Texas
can reject the law of Libya in this high-handed way, or even the law
of Alberta, and it may occasionally need to do so.
But it cannot so treat a sister state admitted to the Union on
an equal footing with itself. The
public-policy exception is a relic carried over from international law
without reflection on the changes in interstate relations wrought by
the Constitution. n379
Larry Kramer would concede that
states should not reject sister-state law on the ground that it is
worse, aberrational, or anachronistic,
n380 although he finds it unnecessary to rely on the
Constitution. However, he
urges the closely related point that states can reject
"obsolete" sister-state law.
n381 An obsolete law in his view is one that was enacted long
ago and that is now out of step with the policy of the enacting state.
n382 He would let Texas courts reject "obsolete"
California law even in cases where the "obsolete" law is
embodied in a statute, so that California courts would have no
authority to reject it, and in cases where the California courts had
recently held themselves powerless to revise an "obsolete"
common law policy. n383
His rationale for letting Texas reject California law in these cases
is that California would not seriously object, and that Texas would
not seriously object if [*314]
California rejected "obsolete" Texas law in the same
way. Kramer envisions
this as a mutually beneficial trade, in which each state surrenders
control of cases it cares about only a little in exchange for control
of cases it cares about more.
Kramer's proposed rule is
narrower than most better-law approaches, and to that extent less
objectionable. But it is
just as unconstitutional in the cases where it applies.
Texas has no authority to change California law, and no
authority to deny faith and credit to California law on the ground
that California ought to change its own law, or on the ground that
California would not seriously object.
Moreover, Kramer's vision of the
states trading cases with each other wholly ignores the rights of the
litigants. One need not
make Beale's error of deducing choice-of-law rules from vested rights
to believe that individual litigants do indeed acquire rights under
applicable state law once choice-of-law rules have been created.
n385 If the generally applicable choice-of-law rule for a case
selects California law, courts have no authority to trade one
litigant's California rights in that case for some other litigant's
Texas rights in a hypothetical future case with different issues and
different litigants. I
believe that this objection applies to any game-theory model that
assumes the states could modify the choice-of-law rule in light of the
content of the conflicting laws.
If a Texas court genuinely
believes that a California court would change California law if the
case were presented there, the best solution is to certify the legal
question to the Supreme Court of California.
It is familiar practice for federal courts to certify questions
to state supreme courts, n387
and some fifteen states authorize their supreme courts to answer such
questions from courts of other states.
n388 If no certification procedure is available, and if a Texas
court genuinely believes that a California court would decide the case
in a way that departs from prior California precedent, then perhaps
the Texas court should follow its prediction of California law and not
the old California precedent. Federal
courts have a limited power to do this in diversity cases,
n389 and when properly done it gives full faith and credit to a
more accurate statement of California law.
It reduces an incentive to forum shop when one side is relying
on a vulnerable precedent due for overruling.
But this practice would likely
be abused. Unlike a
federal trial judge sitting in California, Texas judges have no
realistic experience of [*315]
California law on which to base a judgment that a particular
precedent is ripe for overruling.
More important, Texas judges have a strong temptation to
predict that California would now adopt the Texas rule that they
consider more enlightened. This
temptation may be especially strong if a Texas citizen would benefit.
Even though the ideal is for a Texas court to decide the case
as a California court would decide it, we may achieve that goal more
often with a prophylactic rule that the courts of one state cannot
predict change in the law of another state.
Conclusion. -- I have argued that the Constitution
precludes choice-of-law rules that prefer local litigants or local
law, the better law, the more common law, the more modern law, the law
that reaches a particular result, or the law consistent with the
public policy of the forum. I
have also argued that the Full Faith and Credit Clause assumes the
existence of some basis for recognizing which state's law applies --
that it assumes the existence of choice-of-law rules.
It remains to examine whether our fundamental law says or
implies anything affirmative about the content of those rules.
THE PRINCIPLE OF TERRITORIAL STATES
The Territorial Division of State Authority
Our constitutions create a
federal government and fifty state governments.
For such a scheme to work, governmental authority must be
allocated among these governments both horizontally and vertically.
There can be no gaps, and serious costs are imposed unless
there are clear rules for resolving conflicts and overlaps.
Indeed, anti-Federalist critics
of the Constitution argued that the scheme could not work. They believed it impossible for two sovereigns to exist in
the same territory. n391
The Federalist solution to the problem of multiple sovereigns lay in
careful allocation of the authority of each.
The Federalists did not claim that two sovereigns could govern
the same issues in the same territory.
Rather, they claimed that state and federal authority was
defined as carefully as could be, so that the respective powers of
each sovereign were workably clear.
n392 They argued [*316] that the
few undeniably concurrent powers, such as taxation, did not conflict.
n393 They might have added, but chose not to emphasize, that
the Supremacy Clause would clearly resolve any conflicts that emerged.
Both Federalists and
anti-Federalists agreed that shared sovereignty within the same
territory at least required careful allocation of authority; they
disagreed on whether a sufficiently clear allocation had been
achieved. This debate was
focused on the allocation of authority between the states and the
federal government, but its premises apply equally to the allocation
of authority among states. Neither
side complained about overlapping authority of the states; both sides
must have believed that state authority was allocated with sufficient
clarity. The states'
overlapping territorial claims had been a central problem of the
revolutionary and Confederation period, but the large western land
claims had been resolved by 1787,
n394 and the Constitution gave the Supreme Court authority to
resolve the remaining disputes between states.
Much of the federal Constitution
is devoted to the allocation of authority between the states and the
federal government. This
allocation is based on subject matter, and in a sense, on interests.
Some interest analysts are fond of analogies to federal-state
choice of law. n396
In fact, by illustrating the possibility of allocating authority
according to interests, the federal-state allocation highlights the
quite different allocation of authority among the states.
The allocation of authority
among the states is territorial.
Indeed, territory is part of the very definition of the state.
Interest analysts prefer to emphasize that the state is a
community of people, but that merely pushes the question back one
step. What people are
part of the community? Those who reside within a certain territory,
and only those, are members of the political community.
"State lines are all that distinguish one state from
another and the people of one state from another."
n397 The territorial definition of state citizenship is stated
explicitly in the Citizenship Clause, which provides that all persons
born or naturalized in the United States are citizens of the state
"wherein they reside."
There are other ways to
organize, but we did not choose them.
American state is not like a nomadic tribe, with membership
based on kinship. Nor is
it a voluntary association of like-minded people, like a social club
or a civic league. I
cannot join California, save by moving there, and if I do move there,
California cannot deny me membership.
The state may be created for the good of its people, but it is
defined by its territory, and "its people" are defined by
the territory in which they live.
The principle of equal citizens
is consistent with these territorial definitions.
If I visit California, it must treat me as a citizen.
I become, temporarily and for limited but wide-ranging
purposes, one of California's people. An exasperated interest-analyst once asked if I thought
states enact laws for the benefit of their dirt.
Of course not. But
they do enact laws to even-handedly govern and benefit the people on
their dirt, including visitors from sister states.
The Citizenship Clause is not
the only constitutional provision that explicitly conceives of states
in territorial terms. Consider
also the restrictions on creation of new states: "no new State
shall be formed or erected within the Jurisdiction of any other State;
nor any State be formed by the Junction of two or more states, or
Parts of States, without the Consent of the Legislatures of the States
concerned as well as of the Congress."
n399 Note especially the use of the word
"Jurisdiction" as a synonym or metaphor for territory.
A state's authority to govern -- its jurisdiction -- is a place
that a new state could be formed "within." When the
Constitution says that no new state shall be formed within the
jurisdiction of any other, it does not mean within the reach of the
interests of any other. It
can only mean within the territory of any other.
The Constitution thus assumes
that states are territorial, but it never quite says so.
That function is left to other sources of fundamental law.
The territorial definitions of states are specified in state
organic acts, authorizing the people of a territory to form a
government, and enabling acts, authorizing them to draft a
constitution and apply for statehood,
n400 and for the older states, in treaties, territorial
cessions, [*318] and royal
grants. n401 About
half the states restate their boundaries in their state constitutions,
even though the federal specification is supreme.
n402 These boundaries are specified and marked on the ground by
official surveys. n403
Ambiguities in offshore waters and boundary rivers, and disputes
arising from surveying errors, are gradually eliminated by litigation.
n404 State boundaries are not imaginary lines created by Rand
McNally; they are allocations of power created by our fundamental law. As the Supreme Court held in an early boundary case,
"Title, jurisdiction, sovereignty, are therefore dependent
questions, necessarily settled when boundary is ascertained. . .
When I fly from Texas to
California, I knowingly leave the territory that Texas is empowered to
govern, enter the territory that California is empowered to govern,
and submit myself to the authority of California.
To deny that that matters,
n406 to find it an irrational basis for distinction, to compare
it to a "streetgame,"
n407 is simply to claim that the existence of fifty states is
irrational. Whatever the
merits of that argument as an original matter, it wholly ignores our
constitutional scheme. The
territorial allocation of state authority is a fundamental
constitutional principle, even though that principle is not
attributable to any particular constitutional clause.
The territorial allocation of
authority is too deeply embedded in our law to require justification.
If territorial states are a bad idea, our laws must be amended
to change the definitions and conceptions of states.
But there are sound reasons why American states, like nearly
all other modern states, are defined territorially.
The most important of these
reasons has been reviewed at length by Perry Dane.
n409 Territorial boundaries between states and their law
support the role of law as enforcer of strongly held norms. Common [*319]
goals of predictability and uniformity of result
n410 are means to this end of enforcing norms.
People cannot obey the law unless they know it; they cannot
know the law unless they know which law to learn.
If I am to know the law that governs an act or transaction, I
must be able to identify, before I act, the one state empowered to
govern. It is no answer
to say that I can usually comply with the more restrictive rule,
n411 because that eliminates the political authority of the
more permissive state. Nor
is it an answer to say that I do not need to know rules of
compensation, loss allocation, and the like.
n412 I believe that one should generally obey the applicable
law even if the sanctions for violation are light, but this view is
not universally shared. n413
If we give even a little credence to the insights of law and
economics, my need to know the law extends to rules that specify the
consequences of compliance and violation.
No set of choice-of-law rules
has yet achieved a high degree of predictability in hard cases, but
only territorial rules offer any hope.
When the applicable law depends on the forum in which
litigation is eventually conducted, it is impossible in principle to
know which law will govern my conduct.
It is only a little better for the applicable law to depend on
the residence of strangers. I
can know the residence of the few people with whom I have continuing
relationships, but not of the thousands of people with whom I share
highways or have casual interactions.
n415 So if the governing law may depend on the residence of the
person with whom I come to have a dispute, it is impossible in
principle to know which law governs my conduct.
By contrast, I can be in only
one place at a time, and I can always know where I am.
I can always know the people with whom I have longstanding
relationships, and if those relationships have a clear principal
location, I can know where that is.
The presumptive rules of obeying the law of the place where I
am, and with respect to particular relationships, of obeying the law
of the place where that relationship is principally located, make the
applicable law turn on facts within my knowledge.
Unlike approaches based on forum or domicile, these territorial
approaches make it possible in principle to identify the applicable
law and obey it. n416
Many interest analysts seem to
believe that few people know or [*320]
care about the law anyway.
n417 A variation on this point is to assert that even if they
do know the law, all persons should anticipate that their conduct at
any moment might be held subject to the law of any state.
n418 The extreme illustration of this tendency is Louise
Weinberg's snow-clearing hypothetical.
n419 She posits an out-of-state traveler, stopping at a
stranger's house to ask directions, slipping on a snowy sidewalk.
She would allow the traveler to recover under his home state's
law requiring property owners to clear the snow, even though the situs
has no such law and the homeowner has consciously complied with local
laws that did apply. I
assume she would reach this extraordinary result even in cities where
the occasional snows are so rare that no homeowner has a snow shovel.
She lives in such a city (Austin, Texas), so the possibility
should not have escaped her notice.
The reality is surely that
people know some law but not all law, and that some people know much
more law than others. I
suspect that on average litigants know more law than interest analysts
give them credit for. But
the principal point is normative, not empirical.
We feel strongly enough about some norms to enact them into
positive law and back them with the coercive power of the state.
We want people to learn those norms and obey them.
We must therefore make it possible for them to do so and reward
them for doing so.
Some interest analysts would
give a defense to people unfairly surprised by an unexpected choice of
law, although they almost never seem to find that this standard is
met. n420 Even if
such a standard were fairly applied, it would leave all the litigation
risk on the people we want to encourage -- on the ones who actually
learn and obey the law. Our
fundamental law implies the opposite choice.
State authority is in fact divided territorially.
It is not divided some other way with an occasional territorial
exception. State boundaries do not give rise to a mistake-of-law defense
for those who think boundaries matter.
State boundaries do what ordinary citizens think they do:
divide the authority of separate sovereigns.
Authority to Adjudicate and Authority to Regulate
It is now possible to address
one remaining question under the Full Faith and Credit Clause.
I have urged the need for a single applicable
identifiable in advance, as part of the reason for territorial
choice-of-law rules and as part of the full-faith-and-credit policy
that each state should apply the same law.
It is not similarly necessary that authority to adjudicate be
vested in a single court that can be identified before the dispute
arises. A case can be
decided by any court that acquires jurisdiction over the defendant,
whether by transient service, consent, or attachment of property in
the Founders' time, or by broader notions of submission to judicial
authority in our time. What
made the unpredictability of the forum tolerable in the Founders' time
was their belief in a determinate set of choice-of-law rules.
If the same law will be applied anywhere, it matters much less
where the case is tried.
This is why conflict-of-law
rules can recognize jurisdiction in more than one state to adjudicate
a case, but cannot, in my view, recognize jurisdiction in more than
one state to prescribe the substantive law to govern a case or an
issue in a case. This
last point may be the source of much of my disagreement with the
Supreme Court. The Court
has agreed that the Full Faith and Credit Clause was to be
"interpreted against the background of principles developed in
international conflicts law."
n421 But, the Court said that "since the legislative
jurisdictions of the states overlap," the Full Faith and Credit
Clause frequently permits application of the law of any one of several
states. n422 It is
this premise of overlapping jurisdiction that effectively reads full
faith and credit to acts out of the Constitution.
The Court's notion of
overlapping legislative jurisdiction seems parallel to overlapping
adjudicative jurisdiction, but that parallel is misleading.
Full faith and credit to judgments is interpreted as it should
be: relatively simple federal rules identify a single judgment that
controls in all states. Many
states may have jurisdiction to adjudicate a matter, but once the
first such state enters a judgment, all other states owe full faith
and credit to that judgment. No
other state is free to reason that it too had jurisdiction to
adjudicate, and that therefore, it is free to ignore the other state's
judgment and decide the case itself.
Full faith and credit to acts
has been interpreted very differently.
The Court says that many states may have jurisdiction to
legislate on a matter, just as it says many states may have
jurisdiction to adjudicate. But
the Court has not developed any federal rule for selecting a single
statute that controls in all states.
It has not said that the first such statute controls, nor has
it developed any more sensible rule.
Rather, the Court has said that each of the other states may
reason that it too has jurisdiction to legislate on the matter, and
that therefore, it is free to ignore the other state's law and govern
the matter itself.
Thus, overlapping jurisdiction
has been a reason to require full faith
[*322] and credit
to sister-state judgments; because the first court had jurisdiction,
the second state owes full faith and credit.
But the Court has offered overlapping jurisdiction as a reason
to refuse faith and credit to sister-state acts; because the
second state has jurisdiction, it owes no full faith and credit to the
first. Sister-state acts
rarely get any faith and credit until their application is reduced to
judgment. And then, the
faith and credit is given to the judgment, not to the act.
The Court has recognized that the Full Faith and Credit Clause
must be interpreted in light of conflict-of-law principles, but it has
failed to give effect to that insight.
SOME PRELIMINARY THOUGHTS ON SPECIFIC TERRITORIAL RULES
The Content of Territorial Rules
The territorial allocation of
authority among states provides a basis for answering the question
that the Full Faith and Credit Clause assumes: when does each state's
law apply? What is
required of choice of law is to work out the details of that
allocation in a way that will work in a sophisticated legal system,
but that is derived from and consistent with the territorial
allocation of authority in our constitutional scheme.
The academic attack on
territorialism has consisted largely of an attack on unsound
territorial rules from the turn of the century.
It is easy to make fun of the First Restatement, but that does
not show the unworkability of territorialism.
The problem with the Restatement is not territorialism, but
mindless conceptualism. In
a world with thriving interstate commerce, and with complex
relationships, intangible property, and other things that are subject
to regulation but hard to locate, a simple-minded Bealean approach
will not work. But that
obvious truth does not change the fundamentally territorial allocation
of state authority. Beale's
rules were crude, but territoriality did not make them so.
They were crude because they tried to derive the solution to
every choice-of-law controversy from the single premise that rights
vested at the place of the last act necessary to the right.
Critics of the Restatement appear to have assumed that all of
Beale's mistakes were inherent in territorialism, and they diverted a
generation of conflicts scholars from the task of developing more
sensible and sophisticated territorial rules.
Developing such rules is a major
task; my views on any particular territorial rule are much more
tentative than my view that territorialism is the only approach
consistent with the federal structure.
But it is necessary to sketch possible solutions to a few
recurring problems, including some hard ones, to illustrate the claim
that territorial rules can transcend the First Restatement.
n423 Subsequent scholarship may do
[*323] better, and
will certainly proceed further; I merely offer some initial
By a territorial choice-of-law
rule, I mean a rule that defines a class of cases and designates a
controlling contact, the location of which will supply the governing
law for all cases within the class.
When the subject of the states' disagreement is unambiguously
located in one state or the other, that should be the end of the
matter. But location is
sometimes ambiguous, or even fictional.
In those cases, it is important to identify precisely what it
is that the two states disagree about, and then to consider which
state will generally have the greatest interest in the subject of the
At the margins, it is useful to consider the federal system's need for
a clear rule that will unambiguously resolve recurring cases, and the
likely territorial conceptions of the average citizen.
These considerations are listed in approximate order of
importance. I need to
work through some examples to show how they relate.
The ultimate goal is to decide which state has the strongest
territorial claim to govern each issue in each class of cases.
A sophisticated territorialism
would recognize that often the law's purpose is to regulate a
relationship among a group of people, and that the particular event
that caused a dispute within the relationship is incidental to the
larger relationship and the regulatory scheme that governs it.
A continuing relationship requires stable regulation under a
single law, even if there is an element of legal fiction in locating
the relationship. Most
obviously, the relationship of a husband and wife is sensibly located
in their common home state, and that law should govern even when they
travel abroad or invest in property abroad.
n425 The common home state has by far the greatest interest in
regulating relationships formed there; such domicile-based choice of
law rules impose no disadvantage on citizens of sister states;
n426 and it is perfectly sound to reify the relationship and
locate it at home. If one
spouse moves to a new state, that unilateral act cannot change the law
governing the relationship; the law of the original common home state
should continue to govern until and unless both spouses move
Similar reasoning applies to
relationships between business partners, to investors in a
and to the relationship between a citizen and his state.
n428 Often the same reasoning can apply to contractual
relationships and to short-term relationships such as that between
[*324] driver and
passenger in an automobile.
n429 In locating such relationships, it is sensible to ask
which state has the greatest interest in regulating the relationship.
But state interests should be taken into account in the process
of generating rules to govern all cases within their terms, not in
deciding individual cases. The
rules should be formulated without reference to the illegitimate
factors of forum and local benefit.
Once formulated, a rule should be applied to all cases within
its scope, without regard to which state is the forum and without
regard to who is helped or hurt.
John Ely views the insight that
the home state should presumptively regulate disputes between
litigants with a common domicile as "the only solid insight of
interest analysis." n430
I basically agree, but his formulation is not quite right.
Rather, the principal insight that a territorial choice-of-law
system should draw from the work of interest analysts is the
significance of relationships. The
location of a relationship is not always the same as a state of common
domicile. As scholars on
both sides of the issue have recognized, the place of the relationship
is simply a territorial rule that refers to a different territory than
the place of the wrong or the place of the property.
The difference between
relationships and common domicile is easily illustrated.
Suppose two strangers from Wisconsin collide on a Minnesota
highway. There is no
relationship between them, the only relevant events took place in
Minnesota, and there is no basis to apply any law but Minnesota's.
n432 Or suppose two students become friends at a school in
relationship is located in Michigan if it is located anywhere.
n433 That is true even if they have a common domicile elsewhere
but never met there; it is true a fortiori if they have different
relationship should be governed by Michigan law, and not by the law of
their home state.
Locating relationships rather
than domiciles follows from the principles of equal citizens and
territorial states. Applying
the law of a distant common domicile is an interest analysis approach,
based on the distant state's alleged interest in its domiciliaries.
n434 Applying the law [*325]
of the place where a relationship is located is a territorial
approach. When there is no relationship, nothing is located in the
common domicile, and there is no basis to anticipate the law of the
common domicile. Wisconsin
drivers in Minnesota cannot look out for other Wisconsin license
plates, moving back and forth between Minnesota and Wisconsin law
depending on what other cars are approaching.
Applying the law of the relationship also avoids or reduces
some other practical difficulties.
Close cases will rarely arise from the legal technicalities of
domicile or from post-event changes in domicile, and local residents
will not be able to avoid local law by pointing to a technical
domicile somewhere else. n435
The outcome of lawsuits will not depend on a state of incorporation
selected by one of the parties.
Instead, close cases will arise
when citizens of different states see each other in both states and
the relevant relationship cannot be confidently located in either. An example is Blakesley v. Wolford,
n437 where a Pennsylvania patient's local doctors arranged a
consultation with a Texas surgeon who was in Pennsylvania to give a
speech. He agreed to
operate, but only in his own facilities in Texas.
In the ensuing malpractice action, the patient claimed they had
formed the doctor-patient relationship in Pennsylvania, and that
Pennsylvania law applied throughout the relationship.
The court disagreed, finding it far more significant that the
patient had voluntarily traveled to Texas for the operation, and that
the surgeon's allegedly inadequate warnings were given there. n438
The court got it right.
There was never a local relationship in Pennsylvania.
There was only a first meeting in Pennsylvania to discuss the
possibility of further interaction in Texas.
If the relationship cannot be confidently located in a single
jurisdiction, and if the parties have not agreed on a jurisdiction to
govern their relationship, then no jurisdiction has power to govern
the relationship wherever the parties may go.
The only alternative is to apply the law of the place of the
events giving rise to the dispute. Once the court rejects the claim of a Pennsylvania
relationship, Blakesley is an example of the common case of
disputes between local residents and travelers.
When there is no pre-existing relationship in either state,
there is no basis to override the plain fact that the plaintiff
submitted to the authority of Texas when she entered that state, and
that the legally significant events occurred there.
Some variations on Milliken
v. Pratt n439
also serve to illustrate disputes between local residents and
travelers. If a
door-to-door salesman had sold goods to the Pratts at their
Massachusetts home, [*326]
Massachusetts law should apply.
If the Pratts had purchased goods off the rack at Milliken's
store in Maine, Maine law should apply.
The law of the place where the contract was made would achieve
these results, but that is not the rationale.
The rationale is simply that the entire transaction occurred in
only one state. The same
reasoning would apply if their automobiles collided in one state or
the other. Neither party
can carry her own law with her like a Roman citizen visiting the
barbarians. n440 If
one party could insist on her own law, so could the other, and
disputes between them would have no determinate solution.
The full-faith-and-credit goal of uniform results would be
position that a citizen carries with him, into every State into which
he may go, the legal institutions of the one in which he was born,
cannot be supported."
Some of the most difficult cases
are interstate transactions conducted by phone or mail, where neither
party leaves his home state. These
cases are difficult precisely because there is no good basis to say
that the transaction occurred in one state or the other or that the
relationship was located in one state or the other.
Milliken v. Pratt was such a case, and Currie used this
especially difficult case in his attempt to show the perversity of
territorial rules. He had
great fun with Beale's suggestion that we apply the law of the state
where the offer was accepted,
n442 but that only proves that Beale failed to solve a hard
problem. If the
fundamental allocation of authority among states is territorial, we
should look to the implications of that allocation in hard cases as
well as easy ones. If I
can identify a sensible territorial rule for interstate contracts by
mail or phone, that would go far towards showing that territorial
solutions are possible and that further efforts to develop such rules
One possible solution is to
identify the party who initiated the interstate transaction, and treat
him like the traveler, consciously submitting to some other state's
law. Such a standard can
be applied quite generally, is relatively immune to manipulation by
the parties, and is supported by some lower court precedent in
jurisdiction cases. n443
also has considerable intuitive appeal in clear cases.
If the Pratts call Milliken in Maine, where he does only local
business, and ask him to send a specialty item that they heard about
from a friend, it hardly seems fair to expect that Massachusetts law
will apply. They would have sought out a transaction with a Maine
merchant who did not seek Massachusetts business.
They would be responsible for the interstate nature of the
case, just as if they had traveled to Maine.
Conversely, if Milliken advertises his goods in the
Massachusetts press and the Pratts respond to his ad, he has initiated
business in Massachusetts and is fairly subject to Massachusetts law
with respect to the resulting transactions.
Some cases would be factually close under such a rule, but that
is true of any rule. This
rule lends itself to operational rules of thumb; for example, in
contracts concluded by mail or phone, apply the law of seller's state
unless seller has solicited or advertised in buyer's state.
Identifying the party
responsible for the interstate nature of the case has potential
application in tort as well as in contract.
When a New York seller ships a product to Oklahoma, where the
product causes an injury, I would apply Oklahoma law.
That case is very different from the case where a New Yorker
sells to a buyer in New York who then takes the product to Oklahoma.
n445 In neither case did the New York seller literally act in
Oklahoma. But in the
first case, the seller deliberately caused consequences in Oklahoma;
in the second case, the Oklahoma consequences were foreseeable only in
the sense that anything might happen.
In the first case, the seller is responsible for the product's
presence in Oklahoma; in the second case, the buyer is responsible.
The party responsible for the interstate nature of the case is
roughly analogous to the traveler who goes to the other state.
A harder variation on these
facts is the case where the New York seller sells in New York, the
buyer takes the product to Oklahoma, and the defective product injures
a third party in Oklahoma. In
a suit by the Oklahoma victim against the New York seller, neither
litigant has meaningful responsibility for the interstate nature of
the case. Neither
litigant has done anything with foreseeable consequences in the other
state; neither state has any plausible territorial claim to govern the
rights and liabilities of the other state's citizen.
Yet such cases cannot be left in a state of anarchy.
If Congress will not govern them under
commerce power, Congress or the federal courts must decide which state
will be permitted to govern them.
We might plausibly break this
tie by asking which litigant had the closest relationship to the party
who is responsible for the interstate nature of the case. If the plaintiff is a family member, an employee, a
co-worker, or even a friend of the buyer, we might impute the buyer's
travel to the plaintiff and apply New York law.
But if the plaintiff is a mere bystander, or another driver on
the highway, with no relationship to the buyer, then we might impute
the buyer's travel to the seller and apply Oklahoma law.
The seller at least entered into a sales transaction with the
party who took the product to Oklahoma, which is more than the
Alternatively, we might simply
apply the law of the place of injury to most issues in all products
liability cases. That has
the great virtue of simplicity, at the cost of some unfairness to
local retailers and regional manufacturers.
Or we might apply the law of the place where the product was
last sold, n446
making it much easier for sellers to know the law that will apply to
their conduct, at the cost of some unfairness in the rare case
involving injury to bystanders unconnected to anyone who owned or
transported the product. These
sorts of tradeoffs between equity and simplicity are common, and the
Supreme Court or Congress creating uniform choice-of-law rules could
plausibly decide either way.
In some of the hard cases,
careful categorical analysis of particular laws may generate more
specific rules. For
example, one might plausibly conclude that the consumer's home-state
consumer protection laws should apply to interstate consumer
transactions conducted by mail or phone.
This is not because the consumer's state has the greater
interest in applying its consumer protection statutes.
That assertion has a surface plausibility, but on reflection it
is indefensible. Consumer
protection statutes balance the interests of consumers and merchants,
and each state has an equal interest in applying its balance of the
competing interests to a transaction that occurs partially within its
The argument for a territorial
rule focused on the location of the consumer depends on prosaic
functional considerations. First,
the consumer's expectations about the applicable law in interstate
transactions are likely to be less sophisticated than the merchant's.
Second, mail order merchants can amortize the cost of learning
sister-state law over many transactions.
Consumers cannot, and in the great bulk of cases, the cost of
learning sister-state law in anticipation of a single consumer
transaction is prohibitive. Third,
applying the law of the merchant's state would tempt some states to
create a Delaware for mail order
Fourth, applying the consumer's law is a simpler rule, with
fewer ambiguous cases, than applying the law of the person who did not
initiate the transaction. At
this level of detail, the rule's clarity may be more important than
But if a rule applying the
consumer's law were adopted, it would have to be applied uniformly to
all mail and phone cases, even when the local consumer is
disadvantaged. The waiver provisions of his home state law would apply along
with the protective provisions. Any
more generous protection of the merchant's state would be unavailable.
Moreover, such a rule is defensible only in phone or mail
cases. If the consumer
actually travels to another state and engages in a transaction there,
he could no more carry his law with him than the merchant could.
The state where he travels must protect him just as it protects
its resident consumers.
It will often be helpful to
identify precisely the point of disagreement between the two laws.
Suppose a husband and wife from New Jersey, where the speed
limit on interstate highways is 55 miles per hour, have a wreck in
Texas where the speed limit is 65.
Surely no one would suggest applying the New Jersey speed limit
to determine whether the driver was per se negligent. n448 We would apply the New Jersey rule on spousal
immunity to the relationship wherever they go, but we would apply the
traffic rules of each state through which they pass.
We should also apply the negligence standard of each state
through which they pass. Different
spousal immunity rules reflect a disagreement about the marital
relationship, which can be sensibly located in the home state.
But different negligence rules reflect a disagreement about
safe driving, which can be located only in the place where one drives.
This analysis can also be
helpful in more difficult cases.
Consider Schultz v. Boy Scouts of America, Inc.,
n449 where a New Jersey scout leader sexually molested two
members of his troop while on a camping trip in New York.
The scout troop was sponsored by a church. The victims sued both the Boy Scouts and the religious order
that ran the church. New
Jersey retained charitable immunity; New York did not.
Plainly the two states did not disagree about the wrongfulness
of child molesting -- they disagreed about the rules to govern
relationships between charitable enterprises and their clients.
The relationship between the victims and the Boy Scouts, and
between the victims and their church, were unambiguously New Jersey
relationships. The New
Jersey victims joined a New Jersey scout troop and a New Jersey church
in New Jersey, and the great bulk of their activities with the troop
the church occurred in New Jersey.
If you join a charitable organization in New Jersey, you enter
into a relationship with an immune organization.
New Jersey's immunity law should apply to torts within the
relationship, wherever they occur.
n450 Note that the states of incorporation of the Boy Scouts,
and of the religious order that ran the church, are irrelevant to this
analysis. The state of
incorporation might be relevant to identifying a state with an
interest in protecting defendants, but it is not relevant to locating
the relationship with the victims.
Identifying the precise point of
disagreement will sometimes result in depecage, or applying the law of
different states to different issues in the same case.
n451 The case of the married couple driving in a state other
than their domicile is an obvious example.
Identifying the point on which the states disagree bears some
resemblance to characterization, and in the hands of a determined
court, it may be subject to similar abuses.
n452 But the potential for abuse and manipulation is less,
because I would ask a factual and functional question: What is it in
the real world that these states disagree about.
I would not ask a pleading question, so that the result might
depend on whether the plaintiff emphasized a tort theory or a contract
Russell Weintraub said of an
earlier draft of this section that I am engaged in "sophisticated
interest analysis." If he wants to adopt my proposals and call
them interest analysis, he is welcome to do so.
I will not quibble over labels, and I would be delighted to
help forge a new synthesis of territorial rules acceptable to interest
analysts. But there are
fundamental differences between the analysis I propose and all that
has previously been done under the label of interest analysis.
I would consider each state's
interest in regulating potential disputes.
But I would consider state interests only as a step to
selecting a particular person, thing, relationship, act, or event that
will be controlling in locating the dispute within a territory.
The goal is to specify a choice-of-law rule that will then be
applied to all cases that fall within the rule, without regard to any
state's interest in a particular case.
This choice-of-law rule will select a jurisdiction to govern,
without regard to the content of that jurisdiction's substantive rule.
The choice-of-law rules I am proposing in this section are thus
"jurisdiction-selecting rules," in David Cavers' famous
phrase. n453 Unless
a court errs in applying the rule, the controlling law will be the
same in either state, and costs and benefits will fall where they may
among the litigants. Such
rules are territorial choice-of-law rules, but formulated with an eye
to state and multi-state interests.
Territorialism is not equivalent to mindless
and just because it seems sensible does not make it interest analysis.
The Power to Specify Choice-of-Law Rules
I have argued that our
fundamental law allocates state authority territorially and that this
allocation should drive choice of law.
It is also plain that the development of sound territorial
rules requires judgment: their details are not an indisputable natural
law apparent to all. But if different states make different judgments, the goals
of uniformity and predictability cannot be fully met, the law's role
as a source of enforceable norms is weakened, and the three
constitutional principles outlined above are undermined.
Thus, the constitutional scheme
for allocating authority among the states is not complete without an
allocation of authority to specify choice-of-law rules.
That authority cannot reside in the states, because each state
is equal to all the others and no state's view can control. And states tend to be biased in favor of their own citizens
and their own law; that is why we needed the Privileges and Immunities
and Full Faith and Credit Clauses in the first place.
Thus, the authority to make choice-of-law rules is put in the
only place the Founders could plausibly put it: in Congress or the
Supreme Court under the Full Faith and Credit Clause.
Recall that the Full Faith and Credit Clause includes an
Effects Clause: "Congress may by general Laws prescribe the
Manner in which such Acts, Records and Proceedings shall be proved, and
the Effect thereof."
n454 It is common ground that Congress can designate the
authoritative state law under the Effects Clause,
n455 specifying which state's law gets full effect in each
class of cases, and concomitantly, that no other state's law gets any
effect in that class of cases. Failing
congressional action, the Court can designate the authoritative state
law in deciding cases under the Full Faith and Credit Clause and under
the implementing statute. n456
Federal specification of applicable law is binding; all states owe
full faith and credit to that one law.
The failure of Congress and the Court to deal with
choice-of-law problems is a major abdication of responsibility.
On reading an earlier draft of
this article, Larry Kramer argued that Congress has exclusive power to
specify choice-of-law rules under the Effects Clause, and thus, the
Effects Clause preempts independent judicial power to enforce the Full
Faith and Credit Clause. If
this were so, it would seem to follow a fortiori that the Effects
Clause preempts state choice-of-law rules.
But no one is claiming that.
No one, certainly not Kramer, really believes the Effects
Clause is an exclusive power.
[*332] If the
Effects Clause were really exclusive, the Supreme Court could not
reject any state choice-of-law decision, however outlandish.
The Court and almost all commentators agree that a state denies
full faith and credit when it applies its law to a dispute that is
wholly local to some other state.
n457 That is a Court-made choice-of-law rule to implement the
Full Faith and Credit Clause. The
issue is not whether the Court will devise choice-of-law rules, but
whether it will devise determinate rules that implement the purpose of
the Clause, or toothless rules that reverse an occasional erratic
state court decision but make no contribution to the federal
The Effects Clause is not
plausibly read as preempting anything.
The Effects Clause authorizes but does not require
congressional action. Whether
or not Congress acts, the Full Faith and Credit Clause is
and therefore judicially enforceable under Marbury v. Madison.
n459 Judicial enforcement is impossible without choice-of-law
rules, so the possibility of judicial enforcement without
congressional action necessarily entails the possibility of judicially
specified choice-of-law rules. If
Congress someday specifies more detailed choice-of-law rules, those
rules will preempt any inconsistent judicial rules.
But the preemptive effect will come from the statute, not from
the Effects Clause.
Even if the unexercised Effects
Clause were preemptive, the Clause is not unexercised. Congress has exercised its power under the Effects Clause by
referring the problem back to the federal courts. Even more explicitly than the Constitution alone, the Full
Faith and Credit Act's requirement that each state apply the
"same" law requires more detailed choice-of-law rules if it
is to make any sense. n460
There is no reason to doubt that Congress expected courts to enforce
the Full Faith and Credit Act like any other statute.
Congress has not specified the detailed choice-of-law rules
necessary to that enforcement; it must therefore expect the courts to
specify them. And there is no provision analogous to the Effects Clause
that even arguably preempts judicial power to specify choice-of-law
rules to implement the statute.
It is not at all surprising that
the Constitutional Convention and the Congress would rely on courts to
specify detailed choice-of-law rules.
Choice-of-law rules were judge-made in the time of the
Founders, and they are mostly judge-made today.
Congress has left choice of law to the federal courts, and
nothing in the Constitution precludes Congress from making that
Federal choice-of-law rules may
readily be conceived as constitutional law -- as the implied commands
of the Full Faith and Credit Clause.
But I think they are better conceived as federal common law if
[*333] made by the
Court, n461 and
obviously as statutory law if made by Congress.
Thinking of these rules as common law removes any sense of
anomaly about Congressional power to change rules announced by the
Court, and the common law label may be more conducive to the period of
flexibility and experimentation that would be necessary to develop a
workable set of rules. Whichever
label is chosen, the essential characteristics of these rules are the
same. These choice-of-law
rules are created to implement the Full Faith and Credit Clause, they
are binding on states under the Supremacy Clause, and court-made rules
are subject to revision by Congress under the Effects Clause.
There is nothing anomalous about
such a set of court-made rules. In
suits between private parties as well as in suits between states, the
Court has created federal common law to resolve interstate disputes
over boundaries, n462
water rights, n463
and conflicting claims of escheat.
n464 Early on the Court applied common law principles to such
cases and rejected the argument that it had to wait for Congress to
enact implementing legislation.
n465 The Court has commented that an interstate boundary
dispute is "in its nature a federal question."
n466 Disputes over the boundary of authority between
conflicting state laws are similarly federal in nature, and in default
of legislation, the Court must create federal common law to resolve
A federal common law of choice
of law to implement the Full Faith and Credit Clause and Act would
also parallel the federal common law implementing other statutes and
constitutional clauses. The
Court frequently makes federal common law to implement federal
statutes, sometimes explicitly, as in the enforcement of labor
sometimes without acknowledgement, as in the law of federal
injunctions against state judicial proceedings,
n468 and sometimes in the guise of interpreting
[*334] a silent
statute, as in the law of damages
n469 and immunities
n470 under section 1983. Section
1983 presupposes rules about remedies in the same way that the Full
Faith and Credit Act presupposes rules about choice of law.
Similarly, the Court has necessarily created a common law of
constitutional remedies, including injunctions,
n471 monetary compensation,
n472 and exclusionary rules.
n473 In suits against federal officials
n474 and in cases arising before 1871,
n475 this power was based directly on the Constitution, without
even a general legislative authorization of the sort found in section
1983. These remedies were
necessary to implement the Constitution, just as choice-of-law rules
are necessary to implement the Full Faith and Credit Clause.
For the Court to refuse to develop implementing choice-of-law
rules is to ignore an act of Congress and a clause of the
Constitution, rendering both dead letters.
This authority granted to the
Court is no delegation of unbounded discretion.
Rather, the Court is to implement the territorial division of
authority among the states, drawing on the territorial principles of
choice of law that have been developed at common law and that already
existed in rudimentary form in the time of the Founders.
The Court must make choices with respect to details, but the
choices are guided by concrete principles set forth in the
Constitution and the federal structure.
Congress may be expected to
leave the problem to common law because there are no votes to be
gained by resolving it. The
victims of discriminatory choice-of-law decisions are a dispersed and
anonymous minority, many of them victimized only once, incapable of
organizing as a political force.
n476 The victims who could organize, such as insurance
and product manufacturers, are more concerned with other political
agendas, although Michael Gottesman persuasively argues that they have
strong reason to turn their efforts to choice of law.
The Supreme Court has also
tended to ignore dispersed and anonymous minorities, finding it easier
to empathize with the well-organized minorities it calls discrete and
insular. n478 But
the lack of any well organized minority group is not a sufficient
explanation. The Supreme Court has enforced constitutional limitations on
the jurisdictional reach of state courts; why not the more important
constitutional limitations on the authoritative reach of state law?
One argument against the federal
courts making binding choice-of-law rules is that they may make bad
rules. n479 That is
not a reason to take the issue away from the only institution that
might conceivably be able to resolve it.
All courts make mistakes, but where uniformity and
non-discrimination are the goals, one neutral, ultimate authority is
better than fifty biased, ultimate authorities.
Nor is there any reason to believe that we will be stuck
forever with the Supreme Court's mistakes.
If the Supreme Court creates an unworkable choice-of-law rule,
litigants and lower courts are quite capable of telling it so, and if
a bad rule imposes real social costs, even Congress might be motivated
to act under the Effects Clause.
The argument that the Supreme
Court makes mistakes is an argument against judicial review generally.
It is not an argument against judicial review of choice of law
in particular. Indeed, I
see less to fear here than in most areas of constitutional law.
If the Supreme Court once accepted the three principles I have
reviewed, the development of specific territorial rules would be
largely a matter of detail. Some
rules would be better than others, and I can imagine some that would
be awful, but on many issues, the content of the rule would matter far
less than the fact of a rule. Almost
any rule would do as long as it was clear, settled, and binding
throughout the land. n481
Even if the Supreme Court erred seriously and often, it is hard to
imagine it making a worse mess than the chaos of the last thirty
Another institutional advantage
of federalizing the area would be
[*336] to bring
the talents of the lower federal courts more fully to bear on the
problem. This resource is
now largely wasted, because the lower federal courts are bound by the
choice-of-law rules of the state where the district court sits.
The waste is large, because a large portion of choice-of-law
cases are diversity cases. Those
cases provide the vehicle for more than seven hundred federal judges
to help develop a body of federal choice-of-law rules, without placing
the whole federal burden on the Supreme Court.
n482 Only that Court can force state courts to follow federal
precedent, but the lower federal courts can do much of the work of
elaborating the principles announced by the Supreme Court.
As we have seen, this is the most important purpose of the
diversity jurisdiction. n483 If Congress ever acts on proposals to abolish
diversity jurisdiction, it should consider retaining diversity
jurisdiction solely to resolve choice-of-law issues.
Federal courts might be authorized only to choose the
applicable state law and remand the case to state court.
Choice-of-law methods that
prefer local litigants, local law, or better law are unconstitutional.
These unconstitutional preferences are central to some
so-called modern choice-of-law methods, and infect most other methods
to some extent. The
choice-of-law revolution has proceeded in disregard of the
This conclusion breaks sharply
with current law and scholarship on constitutional limits to choice of
law. Yet my methods of
constitutional interpretation are entirely conventional.
I have emphasized the constitutional text, the constitutional
structure, and secondary evidence of intent.
Nor have I relied on original
intentions that have become anachronistic.
It is not controversial to say that all Americans are entitled
to equal treatment, that the states are of equal status and authority,
or that states are divided territorially.
It should not be controversial to draw the choice-of-law
corollaries of these propositions: that courts owe equal concern and
respect to citizens of sister states, that courts owe equal respect to
sister-state law, and that the boundaries separating governmental
authorities are the basis for rules separating the reach of
The secondary evidence of
original intent supports my thesis, but the most important arguments
are structural. The three
principles I have identified are essential and mutually
reinforcing elements of the federal structure.
These three principles give simultaneous and consistent effect
to the Privileges and Immunities Clause, the Full Faith and Credit
Clause, and the territorial definitions of states, and they eliminate
any tension with the Equal Protection Clause.
Choice-of-law decisions may not be based on the forum, or on
the better law, or on benefit to one litigant or the other, but they
may be based on the location of the person, thing, relationship, act,
or event to be regulated.
Full implementation of these
constitutional provisions requires Congress or the Supreme Court to
develop a determinate set of territorial choice-of-law rules. Federal responsibility for developing and enforcing these
principles provides a neutral referee for interstate disputes, without
displacing state authority on a single domestic issue.
By contrast, leaving these matters to the states is
inconsistent with the rule of law, because no person can know the law
that governs his conduct until after his case has been decided.
Partial implementation requires
only that the Court enforce the negative prohibitions of the
Privileges and Immunities and Full Faith and Credit Clauses.
The Court should reverse any choice-of-law judgment in which
preference for local litigants, or a preference for forum law or
better law or local public policy, played a role in the decision.
States would be left free to develop their own choice-of-law
rules within these restrictions.
That would fall far short of the constitutional plan, but it
would be a vast improvement over the status quo.
Forced to abandon the
unconstitutional preferences that have dominated choice-of-law debates
for a generation, courts and scholars might turn to territorial rules
for lack of an alternative. We
could then pursue the real task, never seriously attempted in the
post-realist era, of developing determinate territorial choice-of-law
rules for a modern society.
n1 Robert H. Jackson, Full Faith
and Credit -- The Lawyer's Clause of the Constitution, 45 Colum. L.
Rev. 1, 2, 6-7 (1945).
n2 U.S. Const. art. IV, §
2, cl. 1.
n3 Id. §
n4 See infra notes 391-403 and
n5 See 28 U.S.C. §
1738 (1988); infra notes 301-302, 456-482 and accompanying
n6 See Lea Brilmayer, Conflict
of Laws: Foundations and Future Directions 11-108 (1991).
n7 Joseph H. Beale, A Treatise
on The Conflict of Laws (1935).
n8 Restatement of Conflict of
Laws (1934) [hereinafter Restatement].
n9 See David F. Cavers, A
Critique of the Choice-of-Law Problem, 47 Harv. L. Rev. 173 (1933);
Walter Wheeler Cook, The Logical and Legal Bases of the Conflict of
Laws, 33 Yale L.J. 457 (1924); Ernest G. Lorenzen, Territoriality,
Public Policy and the Conflict of Laws, 33 Yale L.J. 736 (1924).
n10 See, e.g., Restatement,
supra note 8, § § 311-31,
at 377; Beale, supra note 7, § 8A.6,
n11 See, e.g., David F. Cavers,
The Choice of Law Process (1965); Brainerd Currie, Selected Essays on
the Conflict of Laws (1963); Albert A. Ehrenzweig, A Treatise of the
Conflict of Laws (1962); Robert A. Leflar, American Conflicts Law (3d
ed. 1977); Arthur T. von Mehren & Donald T. Trautman, The Law of
Multistate Problems (1965); Russell J. Weintraub, Commentary on the
Conflict of Laws (3d ed. 1986).
n12 See Currie, supra note 11.
n13 See, e.g., Aaron D. Twerski,
On Territoriality and Sovereignty: System Shock and Constitutional
Choice of Law, 10 Hofstra L. Rev. 149 (1981) [hereinafter Twerski, On
Territoriality]; Aaron D. Twerski, To Where Does One Attach the
Horses?, 61 Ky. L.J. 393 (1973); Aaron D. Twerski, Enlightened
Territorialism and Professor Cavers -- The Pennsylvania Method, 9 Duq.
L. Rev. 373 (1971) [hereinafter Twerski, Enlightened Territorialism].
n14 See, e.g., Alfred Hill, The
Judicial Function in Choice of Law, 85 Colum. L. Rev. 1585 (1985)
[hereinafter Hill, Judicial Function]; Alfred Hill, Choice of Law and
Jurisdiction in the Supreme Court, 81 Colum. L. Rev. 960 (1981);
Alfred Hill, Governmental Interest and the Conflict of Laws -- A Reply
to Professor Currie, 27 U. Chi. L. Rev. 463 (1960).
n15 Restatement (Second) of
Conflict of Laws (1971) [hereinafter Restatement (Second)].
n16 See id. § 6.
n17 See Larry Kramer, Rethinking
Choice of Law, 90 Colum. L. Rev. 277, 321-22 n.149 (1990) ("no
explanatory power"); Joseph W. Singer, Real Conflicts, 69 B.U. L.
Rev. 1, 77 (1989) ("mystifies rather than clarifies"); see
also Michael H. Gottesman, Draining the Dismal Swamp: The Case for
Federal Choice of Law Statutes, 80 Geo. L.J. 1, 8 (1991)
("hodgepodge of all theories").
n18 See, e.g., Roger C. Cramton,
et al., Conflict of Laws xxvi-xxvii (4th ed. 1987) (including
Restatement (Second), supra note 15, in chapter on "Modern
Approaches to Choice of Law"); Weintraub, supra note 11, §
1.5, at 7.
n19 See Brilmayer, supra note 6,
at 43-108, 191-230; Lea Brilmayer, Shaping and Sharing in Democratic
Theory: Towards a Political Philosophy of Interstate Equality, 15 Fla.
St. U. L. Rev. 389 (1987) [hereinafter Brilmayer, Interstate
Equality]; Lea Brilmayer, Governmental Interest Analysis: A House
Without Foundations, 46 Ohio St. L.J. 459 (1985); Lea Brilmayer,
Methods and Objectives in the Conflict of Laws: A Challenge, 35 Mercer
L. Rev. 555 (1984); Lea Brilmayer, Legitimate Interests in Multistate
Problems: As Between State and Federal Law, 79 Mich L. Rev. 1315
(1981) [hereinafter Brilmayer, Legitimate Interests]; Lea Brilmayer,
Interest Analysis and the Myth of Legislative Intent, 78 Mich. L. Rev.
392 (1980) [hereinafter Brilmayer, Legislative Intent].
n20 See John B. Corr, Interest
Analysis and Choice of Law: The Dubious Dominance of Domicile, 1983
Utah L. Rev. 651.
n21 See Jack Davies, A
Legislator's Look at Hague and Choice of Law, 10 Hofstra L.
Rev. 171 (1981).
n22 See John Hart Ely, Choice of
Law and the State's Interest in Protecting Its Own, 23 Wm. & Mary
L. Rev. 173 (1981).
n23 See Harold L. Korn, The
Choice-of-Law Revolution: A Critique, 83 Colum. L. Rev. 772 (1983).
n24 See Michael W. McConnell, A
Choice-of-Law Approach to Products-Liability Reform, in New
Directions in Liability Law 90 (Walter Olson ed. 1988).
n25 See Gerald L. Neumann,
Territorial Discrimination, Equal Protection, and Self-Determination,
135 U. Pa. L. Rev. 261, 314-32 (1987).
n26 See Linda Silberman, Can the
State of Minnesota Bind the Nation?: Federal Choice-of-Law Constraints
After Allstate Insurance Co. v. Hague, 10 Hofstra L. Rev. 103
n27 See Donald H. Regan, Siamese
Essays: (I) CTS Corp. v. Dynamics Corp. of America and Dormant
Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85
Mich. L. Rev. 1865 (1987).
n28 For a thorough criticism of
Beale's vested rights reasoning, see Brilmayer, supra note 6, at
n29 See Perry Dane, Vested
Rights, "Vestedness," and Choice of Law, 96 Yale L.J. 1191
n30 See Gottesman, supra note
n31 See Kramer, supra note 17;
see also Larry Kramer, More Notes on Methods and Objectives in the
Conflict of Laws, 24 Cornell Int'l L.J. 245 (1991) [hereinafter
Kramer, More Notes].
n32 See Singer, supra note 17.
For elaboration on Singer's approach, see Joseph W. Singer,
Facing Real Conflicts, 24 Cornell Int'l L.J. 197 (1991) [hereinafter
Singer, Facing]; Joseph W. Singer, A Pragmatic Guide to Conflicts, 70
B.U. L. Rev. 731 (1990).
n33 See Louise Weinberg, Against
Comity, 80 Geo. L.J. 53 (1991).
n34 See William F. Baxter,
Choice of Law and the Federal System, 16 Stan. L. Rev. 1, 33 (1963).
n35 See Michael H. Cardozo,
Choosing and Declaring State Law: Deference to State Courts Versus
Federal Responsibility, 55 Nw. U. L. Rev. 419, 429-36 (1960).
n36 See Harold W. Horowitz,
Toward a Federal Common Law of Choice of Law, 14 UCLA L. Rev. 1191,
n37 See Gary J. Simson, State
Autonomy in Choice of Law: A Suggested Approach, 52 S. Cal. L. Rev.
61, 66-73 (1978).
n38 See James D. Sumner, Jr.,
The Full-Faith-and-Credit Clause: Its History and Purpose, 54 Or. L.
Rev. 224, 246-49 (1955); see also sources cited infra notes 275-276
(arguing that Full Faith and Credit Clause presupposes federal
n39 See Brainerd Currie, The
Constitution and the Choice of Law: Governmental Interests and the
Judicial Function, 26 U. Chi. L. Rev. 9 (1958).
n40 See Brainerd Currie &
Herma H. Schreter, Unconstitutional Discrimination in the Conflict of
Laws: Privileges and Immunities, 69 Yale L.J. 1323, 1373-79 (1960)
[hereinafter Currie & Schreter, Privileges and Immunities];
Brainerd Currie & Herma H. Schreter, Unconstitutional
Discrimination in the Conflict of Laws: Equal Protection, 28 U. Chi.
L. Rev. 1, 29-42 (1960) [hereinafter Currie & Schreter, Equal
constitutional analysis is considered infra notes 206-208 and
accompanying text. Herma
Schreter, now known as Herma Kay, is a distinguished conflicts scholar
in her own right.
n41 See Robert A. Sedler,
Constitutional Limitations on Choice of Law: The Perspective of
Constitutional Generalism, 10 Hofstra L. Rev. 59, 59-60 (1981) (noting
that conflicts scholars approach constitutional limitations on choice
of law from a "conflicts perspective" and not from a
Unfortunately, Sedler makes the same mistake.
See infra notes 43, 203-205 and accompanying text.
n42 For partial exceptions, who
consider full faith and credit in depth, see Kurt H. Nadelmann, Full
Faith and Credit to Judgments and Public Acts: A Historical-Analytical
Reappraisal, 56 Mich. L. Rev. 33 (1957); Ralph U. Whitten, The
Constitutional Limitations on State Choice of Law: Full Faith and
Credit, 12 Mem. St. U. L. Rev. 1 (1981). Their arguments are
considered infra at notes 251-269, 304-331 and accompanying text.
n43 See Weintraub, supra note
11, § 9.2A, at 524-25
(no constitutional limits outside of "two relatively narrow
circumstances"); Robert A. Leflar, Constitutional Limits on Free
Choice of Law, 28 Law & Contemp. Probs. 706, 708 (1963)
("'fair play and substantial justice'"); Earl M. Maltz,
Visions of Fairness -- The Relationship Between Jurisdiction and
Choice-of-Law, 30 Ariz. L. Rev. 751, 765-68 (1988) (concluding there
should be no constitutional limits on choice of law); Sedler, supra
note 41, at 101 ("there should not be any significant
constitutional limitations on choice of law").
n44 Louise Weinberg, Choice of
Law and Minimal Scrutiny, 49 U. Chi. L. Rev. 440, 488 (1982). But see
Louise Weinberg, The Place of Trial and the Law Applied: Overhauling
Constitutional Theory, 59 U. Colo. L. Rev. 67 (1988) [hereinafter
Weinberg, Place of Trial] (arguing it is unconstitutional for a state
to apply its law if it lacks an interest in doing so, whatever its
n45 See Russell J. Weintraub,
Who's Afraid of Constitutional Limitations on Choice of Law?, 10
Hofstra L. Rev. 17, 25 (1981).
n46 See, e.g., Brilmayer, supra
note 6, at 141 (proposing a "minimal reasonableness
threshold"); Peter Hay, Full Faith and Credit and Federalism in
Choice of Law, 34 Mercer L. Rev. 709, 729 (1983) (proposing to require
a "substantial connection . . . to the parties and the
transaction"); James A. Martin, The Constitution and Legislative
Jurisdiction, 10 Hofstra L. Rev. 133 (1981) (elaborating Brilmayer's
proposal to require contacts that would be legally relevant to a
wholly domestic case); Arthur T. von Mehren & Donald T. Trautman,
Constitutional Control of Choice of Law: Some Reflections on Hague,
10 Hofstra L. Rev. 35, 49-50 (1981) (suggesting rebuttable
presumptions that states not prefer their own law or their own
residents, or depart from generally accepted choice-of-law norms).
n47 See Weintraub, supra note
11, § 6.16, at 318-22
(reporting that thirty-three states have adopted a "modern"
choice-of-law theory in tort cases); id. at 66 (Supp. 1991) (claiming
thirty-five such states); Herma H. Kay, Theory Into Practice: Choice
of Law in the Courts, 34 Mercer L. Rev. 521, 591-92 (1983) (reporting
twenty-eight such states); Robert A. Sedler, Interest Analysis and
Forum Preference in the Conflict of Laws: A Response to the 'New
Critics,' 34 Mercer L. Rev. 593, 593-94 & n.4 (1983) (reporting
thirty-one such states).
n48 See Kay, supra note 47, at
591-92 (reporting only two such states, plus six others applying
combined approaches in which interest analysis may be an element);
Gregory E. Smith, Choice of Law in the United States, 38 Hastings L.J.
1041, 1172-74 (1987) (reporting only five such states for torts and
four for contracts).
n49 See Smith, supra note 48, at
n50 The three interest analysts
cited supra note 47 claim twenty-eight to thirty-five
"modern" states, which leaves fifteen to twenty-two
"pre-modern" states. Probably
there are states with unsettled law or a mix of "modern" and
"pre-modern" approaches, but I assume that interest analysts
have claimed as many states as they reasonably could.
See, e.g., Weintraub, supra note 11, at 66 n.53 (Supp. 1991)
(claiming South Dakota on the basis of concurring opinions).
n51 For surveys of recent
decisions, see P. John Kozyris & Symeon C. Symeonides, Choice of
Law in the American Courts in 1989: An Overview, 38 Am. J. Comp. L.
601 (1990); Symeon C. Symeonides, Choice of Law in the American Courts
in 1988, 37 Am. J. Comp. L. 457 (1989); P. John Kozyris, Choice of Law
in the American Courts in 1987: An Overview, 36 Am. J. Comp. L. 547
n52 See Alaska Packers Ass'n v.
Industrial Accident Comm'n, 294 U.S. 532, 547 (1935) ("the
conflict is to be resolved . . . by appraising the governmental
interests of each jurisdiction, and turning the scale of decision
according to their weight").
n53 See Hughes v. Fetter, 341
U.S. 609 (1951) (invalidating refusal to enforce law of place of
injury; not deciding whether plaintiff's home-state could apply its
own law); Order of United Commercial Travelers v. Wolfe, 331 U.S. 586
(1947) (requiring law of state where fraternal benefit society was
organized); Sovereign Camp of the Woodmen of the World v. Bolin, 305
U.S. 66 (1938) (same); John Hancock Mut. Life Ins. Co. v. Yates, 299
U.S. 178 (1936) (requiring law of state where insurance policy was
issued); see also Nevada v. Hall, 440 U.S. 410, 421-24 (1979)
(permitting place of injury to apply its own law); Clay v. Sun Ins.
Office, 377 U.S. 179 (1964) (same); Carroll v. Lanza, 349 U.S. 408
(1955) (same); Watson v. Employers Liab. Assurance Corp., 348 U.S. 66
(1954) (same); Pacific Employers Ins. Co. v. Industrial Accident
Comm'n, 306 U.S. 493 (1939) (same); Wells v. Simonds Abrasive Co., 345
U.S. 514 (1953) (permitting forum to apply its own statute of
n54 Sun Oil Co. v. Wortman, 486
U.S. 717, 727 (1988).
n55 449 U.S. 302 (1981).
n56 Id. at 308.
n57 For further analysis of the
irrelevance of these contacts, see Brilmayer, Legitimate Interests,
supra note 19, at 1319-20, 1341-47.
n58 472 U.S. 797, 814-23 (1985);
see also McCluney v. Schlitz Brewing Co., 649 F.2d 578, 580 n.2,
583-84 (8th Cir.) (invalidating application of Missouri law to
discharge of employee hired in Missouri but subsequently transferred
elsewhere, who returned to Missouri after his discharge in Wisconsin),
aff'd mem., 454 U.S. 1071 (1981).
n59 See Sun Oil v. Wortman, 486
U.S. 717, 730-34 (1988).
n60 For analysis of the sheer
dishonesty of the Kansas holding, see id. at 743-49 (O'Connor, J.,
dissenting); cf. Shutts, 472 U.S. at 816-18 (apparently reading
Texas and Oklahoma law as Justice O'Connor read it two years later).
n61 See 16 Charles A. Wright et
al., Federal Practice and Procedure §
4026 (1977 & Supp. 1991).
n62 See Baxter, supra note 34,
at 23 ("Responsibility for allocating spheres of legal control
among member states of a federal system cannot sensibly be placed
elsewhere than with the federal government."); Jackson, supra
note 1, at 26 (arguing that decision should not be left to states,
because "the mutual limits of the states' powers are defined by
n63 See, e.g., Weintraub, supra
note 11, § 9.2A, at
521-23; Brilmayer, Interstate Equality, supra note 19, at 400; Larry
Kramer, Vestiges of Beale: Extraterritorial Application of American
Law (publication arrangements pending).
I will occasionally cite international choice-of-law cases
where the judges treated them as indistinguishable from domestic
cases. Such opinions
illustrate the relevant views of the judges who decided them, even
though in my view they are subject to a different source of law.
n64 See Wilhelm Wengler, The
Significance of the Principle of Equality in the Conflict of Laws, 28
Law & Contemp. Probs. 822 (1963) (discussing my first two
principles in context of international law and comity).
n65 For a similar comparison of
domestic and international choice-of-law principles, see Jackson,
supra note 1, at 30.
n66 U.S. Const. art. IV, §
2, cl. 1.
n67 Id. art. IV, §
n68 Id. art. IV, §
2, cl. 2.
n69 Id. art. I, §
9, cl. 6.
n70 Id. art. III, §
2, cl. 1.
n71 Id. art. I, §
10, cl. 3.
n72 Id. art. I, §
10, cl. 2.
n73 Id. art. IV, §
2, cl. 3.
n74 Id. art. IV, §
n75 See id. amend. XIII.
n76 See infra notes 114-129 and
n77 U.S. Const. art. IV, §
2, cl. 1.
n78 Ronald Dworkin, Taking
Rights Seriously 180 (1977).
n79 See Mark P. Gergen, The
Selfish State and the Market, 66 Tex. L. Rev. 1097, 1118-28 (1988).
n80 The Fourteenth Amendment
clause provides: "No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States. . . ." U.S. Const. amend. XIV, §
n81 See John Hart Ely, Democracy
and Distrust: A Theory of Judicial Review 22-30 (1980); see especially
id. at 198 n.66.
n82 The change in conjunction
responds to the affirmative and negative introductions to the two
clauses. The Article IV
clause states an affirmative guarantee: Visiting citizens are entitled
to both privileges and immunities.
The Fourteenth Amendment forbids a deprivation: Citizens cannot
be deprived of either privileges or immunities.
The two formulations are logically equivalent; each protects
both "privileges" and "immunities."
n83 For the distinction between
equality rights and substantive rights, see Kenneth Simons, Equality
as a Comparative Right, 65 B.U. L. Rev. 387 (1985).
n84 See Ely, supra note 81, at
23-24; Douglas Laycock, Taking Constitutions Seriously: A
Theory of Judicial Review, 59 Tex. L. Rev. 343, 348 (1981) (reviewing
Ely, supra note 81).
n85 See Gergen, supra note 79,
n86 See id.
n87 436 U.S. 371 (1978) (holding
that state can charge nonresident hunters more than resident hunters
for license to hunt elk).
n88 The earlier clause provided:
[T]he free inhabitants of each
of these States, paupers, vagabonds, and fugitives from justice
excepted, shall be entitled to all privileges and immunities of
free citizens in the several States; and the people of each State
shall have free ingress and regress to and from any other State, and
shall enjoy therein all the privileges of trade and commerce,
subject to the same duties, impositions, and restrictions, as the
inhabitants thereof respectively. . . .
of Confederation and Perpetual Union art. IV, § 1, 1 Stat. 4 (emphasis added).
n89 For elaboration of the
distinction between textual and intentionalist arguments, see, Richard
H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional
Interpretation, 100 Harv. L. Rev. 1189, 1195-99 (1987).
n90 The Federalist No. 42, at
270 (James Madison) (Clinton Rossiter ed., 1961).
n91 Id., No. 80, at 478
(Alexander Hamilton); accord Paul v. Virginia, 75 U.S. (8 Wall.) 168,
180 (1868) ("no provision in the Constitution has tended so
strongly to constitute the citizens of the United States one people as
n92 See Austin v. New Hampshire,
420 U.S. 656, 662 (1975) (Clause "implicates not only the
individual's right to nondiscriminatory treatment but also, perhaps
more so, the structural balance essential to the concept of
n93 The Federalist, supra note
90, No. 80, at 476 (Alexander Hamilton); accord Hugo Grotius, De Jure
Belli Ac Pacis Libri Tres, Book II ch. 25 at 578 (James B. Scott &
Francis W. Kelsey trans., Bobs Merrill 1925) (1646) (section entitled
"War may rightfully be undertaken on behalf of subjects");
Emer de Vattel, The Law of Nations or the Principles of Natural Law §
71, at 136 (James B. Scott ed. & tran., 1916) (1758)
("The sovereign of the injured citizen must avenge the deed and,
if possible, force the aggressor to give full satisfaction or punish
him. . . .").
n94 See Sedler, supra note 47,
n95 Compare Kozyris &
Symeonides, supra note 51, at 601 n.1 (noting at least 1098 reported
conflict of laws cases in 1989) with Lawrence A. Greenfeld, Capital
Punishment 1989, at 1 (1991) (reporting that in 1989, state prison
systems received from courts 251 prisoners under sentence of death).
n96 See, e.g., the bitterly
divided opinions in McCleskey v. Kemp, 481 U.S. 279 (1987).
n97 See Ward v. Maryland, 79
U.S. (12 Wall.) 418, 430 (1870) ("Beyond doubt those words are
words of very comprehensive meaning"); Paul v. Virginia, 75 U.S.
(8 Wall.) 168, 180 (1869) ("it secures to them in other States
the equal protection of their laws").
n98 Baldwin v. Fish & Game
Comm'n, 436 U.S. 371, 387-88 (1978).
n99 See id. at 383, 387-88.
n100 Compare Supreme Court v.
Piper, 470 U.S. 274, 279-83 (1985) and Hicklin v. Orbeck, 437 U.S.
518, 523-34 (1978) (each protecting nonresidents' right to pursue an
occupation under Privileges and Immunities Clause of Article IV) with
Ferguson v. Skrupa, 372 U.S. 726 (1963) and Williamson v. Lee Optical,
Inc., 348 U.S. 483, 484-89 (1955) and Slaughter-House Cases, 83 U.S.
(16 Wall.) 36, 59-60, 76-78 (1873) (each rejecting residents' claim of
Fourteenth Amendment right to pursue an occupation).
n101 See Ely, supra note 22, at
182-83; Larry Kramer, The Myth of the "Unprovided-For" Case,
75 Va. L. Rev. 1045, 1067 n.71 (1989).
n102 See infra notes 167-195 and
n103 See Douglas Laycock, Equality
and the Citizens of Sister States, 15 Fla. St. U. L. Rev. 431, 433-36
n104 See infra notes 131-138 and
n105 For the claim that only
inefficient discriminations are forbidden, see Gergen, supra note 79,
n106 For the substantial
interest test, see infra note 112 and accompanying text.
n107 Compare Frontiero v.
Richardson, 411 U.S. 677, 688 (1973) (plurality opinion) (sex is
inherently suspect classification) with id. at 692 (Powell, J.,
concurring) (Equal Rights Amendment would "resolve the substance
of this precise question").
n108 The parallel is also noted
in Gary J. Simson, Discrimination Against Nonresidents and the
Privileges and Immunities Clause of Article IV, 128 U. Pa. L. Rev.
379, 388 (1979).
n109 See generally Laycock,
supra note 84 (arguing that every clause of the Constitution should be
given effect, and that historical intent, political theory, and other
extra-textual considerations must be subordinate to the text).
n110 See Douglas Laycock, Notes
on the Role of Judicial Review, the Expansion of Federal Power, and
the Structure of Constitutional Rights, 99 Yale L.J. 1711, 1745-47
(1990) (reviewing Robert F. Nagel, Constitutional Cultures: The
Mentality and Consequences of Judicial Review (1989)).
n111 For the argument that
exclusion from the political process requires more vigorous judicial
protection for nonresidents, see United Bldg. & Constr. Trades
Council v. Mayor of Camden, 465 U.S. 208, 217 (1984); Austin v. New
Hampshire, 420 U.S. 656, 662 (1975); South Carolina State Highway
Dept. v. Barnwell Bros., 303 U.S. 177, 185 n.2 (1938); Ely, supra note
81, at 83. For criticism
of that argument, see Brilmayer, Interstate Equality, supra note 19,
at 402-09; Donald H. Regan, The Supreme Court and State Protectionism:
Making Sense of the Dormant Commerce Clause, 84 Mich. L. Rev. 1091,
1160-67 (1986). For a response to Brilmayer's argument (which is also
one part of Regan's argument), see Laycock, supra note 103, at 440-45.
n112 See Supreme Court v. Piper,
470 U.S. 274, 284 (1985); United Bldg., 465 U.S. at 222; Toomer
v. Witsell, 334 U.S. 385, 396 (1948).
n113 Piper, 470 U.S. 274
(discrimination in bar admissions); Hicklin v. Orbeck, 437 U.S. 518
(1978) (discrimination in employment on state oil leases); Austin v.
New Hampshire, 420 U.S. 656 (1975) (discriminatory income tax);
Mullaney v. Anderson, 342 U.S. 415 (1952) (discriminatory fee for
commercial fishing license); Toomer, 334 U.S. at 395-403
(discrimination against out-of-state shrimpers); Travis v. Yale &
Towne Mfg. Co., 252 U.S. 60, 78-82 (1920) (discriminatory tax
exemptions); Chalker v. Birmingham & Nw. Ry., 249 U.S. 522, 525-27
(1919) (discriminatory taxation); Blake v. McClung, 172 U.S. 239,
247-54 (1898) (discrimination in distribution of insolvent estates);
Williams v. Bruffy, 96 U.S. 176, 183-84 (1877) (law confiscating debts
owed to citizens of nonseceding states but not confiscating debts owed
to citizens of debtor's state or other seceding states); Ward v.
Maryland, 79 U.S. (12 Wall.) 418, 430-32 (1870) (discriminatory
n114 See Western & S. Life
Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 656 (1981); Paul
v. Virginia, 75 U.S. (8 Wall.) 168, 177-78 (1868).
n115 See Bendix Autolite Corp.
v. Midwesco Enters., 486 U.S. 888, 891-95 (1988) (discriminatory
statute of limitations); Maryland v. Louisiana, 451 U.S. 725, 753-60
(1981) (discriminatory tax exemptions); cf. Ward, 79 U.S. (12
Wall.) at 425 (holding that discriminatory licensing tax applied to
individuals violates both Commerce and Privileges and Immunities
n116 See Metropolitan Life Ins.
Co. v. Ward, 470 U.S. 869 (1985) (discriminatory taxation); WHYY, Inc.
v. Borough of Glassboro, 393 U.S. 117 (1968) (per curiam)
(discriminatory tax exemption); Wheeling Steel v. Glander, 337 U.S.
562 (1949) (discriminatory taxation).
n117 See Paul, 75 U.S. (8
Wall.) at 181.
n118 For a review of the rise
and fall of the doctrine, see Western & S. Life, 451 U.S.
at 659-68. For other scholars condemning the doctrine, see Julian N.
Eule, Laying the Dormant Commerce Clause to Rest, 91 Yale L.J. 425,
451 (1982); Gergen, supra note 79, at 1117-18; Martin H. Redish &
Shane V. Nugent, The Dormant Commerce Clause and the Constitutional
Balance of Federalism, 1987 Duke L.J. 569, 611.
n119 Brown-Forman Distillers v.
New York State Liquor Auth., 476 U.S. 573, 579 (1986).
n120 See Bendix Autolite Corp.
v. Midwesco Enters., 486 U.S. 888, 891 (1988); Brown-Forman,
476 U.S. at 578-79.
n121 Sporhase v. Nebraska ex
rel. Douglas, 458 U.S. 941, 958 (1982) (quoting Hughes v. Oklahoma,
441 U.S. 322, 337 (1979)).
n122 Maine v. Taylor, 477 U.S.
131, 138 (1986).
n123 See Bacchus Imports v.
Dias, 468 U.S. 263, 268 n.8 (1984).
n124 Western & S. Life Ins.
Co. v. State Bd. of Equalization, 451 U.S. 648, 668 (1981).
n125 Metropolitan Life Ins. Co.
v. Ward, 470 U.S. 869, 878 (1985).
n127 See Western & S.
Life, 451 U.S. at 652-53.
n128 Cf. Katzenbach v. Morgan,
384 U.S. 641, 651 n.10 (1966) ("§
5 grants Congress no power to restrict, abrogate, or dilute
these guarantees" of the fourteenth Amendment).
n129 Cf. Ely, supra note 81, at
82-87 (suggesting ejusdem generis interpretation of
Constitution's more general provisions, and noting equality
protections of the Privileges and Immunities and Commerce Clauses).
n130 See, e.g., Singer, supra
note 17, at 65 (analogizing preference for local litigant in choice of
law to right to vote, receive welfare, and pay lower tuition to attend
state university); Weinberg, supra note 33, at 76 & n.114 (citing
voting rights case for general claim that "state must have power
to make reasonable distinctions between residents and
n131 See Laycock, supra note
103, at 433-36.
n132 Dunn v. Blumstein, 405 U.S.
330, 344 (1972).
n133 For rather different
explanations of this shared judgment, see Brilmayer, Interstate
Equality, supra note 19, at 403-09; Laycock, supra note 103, at
n134 See U.S. Const. art. I, §
n135 See id. amend. XIV, §
2; id. amends. XV, XVII, XIX, XXIII, XXIV, XXVI.
n136 Compare Richardson v.
Ramirez, 418 U.S. 24, 41-56 (1974) (upholding disenfranchisement of
ex-felons) with Hunter v. Underwood, 471 U.S. 222 (1985) (invalidating
disenfranchisement of persons convicted of misdemeanors involving
"moral turpitude," where provision was adopted with intent
to reduce number of black voters).
n137 See generally Gordon S.
Wood, The Creation of the American Republic 1776-1787, at 167-69 &
nn. 14-15 (surveying voting rights in colonial and revolutionary
n138 Gerald M. Rosberg, Aliens
and Equal Protection: Why Not the Right to Vote?, 75 Mich. L. Rev.
1092, 1096-99 (1977).
n139 Cf. Sturgis v. Washington,
368 F. Supp. 38 (W.D. Wash.) (differential in tuition for state
university upheld against challenge under the Equal Protection
Clause), aff'd mem., 414 U.S. 1057 (1973); Starns v. Malkerson, 326 F.
Supp. 234 (D. Minn. 1970) (same), aff'd mem., 401 U.S. 985 (1971). For
statements in dictum that bona fide residence requirements are
generally valid, see Martinez v. Bynum, 461 U.S. 321, 325-30 (1983);
Plyler v. Doe, 457 U.S. 202, 227 n.22 (1982); Vlandis v. Kline, 412
U.S. 441, 452-53 (1973). Martinez upheld a local-residence
requirement for school districts; the requirement applied equally to
in-state and out-of-state residents.
See Martinez, 461 U.S. at 328 n.8. The Court
subsequently held that local and state residence requirements are
equivalent for purposes of the Privileges and Immunities Clause,
United Bldg. & Constr. Trades Council v. Mayor of Camden, 465 U.S.
208, 215-18 (1984), and that either requires justification under the
Clause, id. at 222-23.
n140 A similar argument is
developed in Jonathan D. Varat, State "Citizenship" and
Interstate Equality, 48 U. Chi. L. Rev. 487, 522-23 (1981).
n141 See New York ex rel. Cohn
v. Graves, 300 U.S. 308, 312-13 (1937).
n142 Sanford Levinson has
proposed that commuters and others who have contacts with more than
one state be allowed to vote in more than one place, perhaps
apportioning one vote over several jurisdictions.
See Sanford V. Levinson, Suffrage and Community: Who Should
Vote?, 41 Fla. L. Rev. 545, 551-54 (1989). I would object in principle
to allowing some persons more than one full vote; I would object only
on grounds of workability to allowing some persons to apportion a
single vote among more than one jurisdiction.
n143 See Josiah H. Benton,
Warning Out in New England (1911); George Cooper et al., Law and
Poverty 8-10 (2d ed. 1973); Lucy Komisar, Down and Out in the USA 15,
18-19, 22 (1977); Marcus W. Jernegan, The Development of Poor Relief
in Colonial Virginia, 3 Soc. Serv. Rev. 1, 6-8 (1929); Eleanor
Parkhurst, Poor Relief in a Massachusetts Village in the Eighteenth
Century, 11 Soc. Serv. Rev. 446, 446-53 (1937); Elizabeth Wisner, The
Puritan Background of the New England Poor Laws, 19 Soc. Serv. Rev.
381, 390 (1945). The
Jernegan, Parkhurst, and Wisner articles are reprinted in Compassion
and Responsibility: Readings in the History of Social Welfare Policy
in the United States (Frank R. Breul & Steven J. Diner eds.,
n144 But see United Bldg. &
Constr. Trades Council v. Mayor of Camden, 465 U.S. 208, 222-23 (1984)
(remanding claim of local need for further consideration).
n145 Brainerd Currie, Married
Women's Contracts: A Study in Conflict-of-Laws Method, 25 U. Chi. L.
Rev. 227 (1958).
n146 125 Mass. 374 (1878).
n147 Currie & Schreter,
Privileges and Immunities, supra note 40, at 1360-61, 1368.
n148 See Currie, supra note 145,
n149 See Currie & Schreter,
Privileges and Immunities, supra note 40, at 1365-66 (arguing that
forum may not apply its law to benefit of nonresident if application
of forum law would interfere with nonaltruistic interest of another
n150 Currie, supra note 145, at
n151 See Weintraub, supra note
11, § 6.23, at 333;
Kramer, supra note 17, at 291-311; Sedler, supra note 47, at 628-31.
But see Gary J. Simpson, Plotting the Next
"Revolution" in Choice of Law: a Proposed Approach, 24
Cornell Int'l L.J. 279, 282-83 (1991) (state has interest in deciding
for its residents, favorably or unfavorably); cf. Weinberg, Place of
Trial, supra note 44, at 79-80 (place of injury has interest in
compensating out-of-state victims, but no interest in protecting
n152 See Ely, supra note 22, at
n153 See id.
n154 For a narrower version of
this argument, which is more deferential to the state's alleged
justifications, see Neuman, supra note 25, at 319-26.
n155 Cf. Currie, supra note 145,
at 234 ("married women" substituted for "human
beings"); supra text accompanying note 150.
n156 See Everett Lloyd, Law West
of the Pecos: The Story of Judge Roy Bean 62-63 (1936).
n157 See Currie & Schreter,
Equal Protection, supra note 40, at 12-13 & n.63. But most wrongful death cases would presumably fall within
his constitutional exception, requiring states to provide a remedy
despite their lack of interest in doing so.
See infra notes 206-207 and accompanying text.
n158 See Robert Allen Sedler,
Interstate Accidents and the Unprovided For Case: Reflections on
Neumeier v. Kuehner, 1 Hofstra L. Rev. 125, 138 (1973) (applying this
analysis to guest statute); see also Kramer, More Notes, supra note
31, at 270 (applying this analysis to survival of tort claims).
n159 Brilmayer, Legislative
Intent, supra note 19, at 408.
n160 See supra notes 76-104 and
n161 See Brilmayer, Interstate
Equality, supra note 19, at 412-13.
n162 Currie presumably would
have thought that Maryland should not pursue its interest in
protecting Mary from a suit by Del, because Maryland had not asserted
that interest by enacting a guest statute.
Thus, Maryland should apply its own pro-recovery law to a suit
by Del, although a rigorous pursuit of local interest might lead it to
apply Delaware's guest statute. See
Currie, supra note 145, at 257-58 (applying this analysis to proposed
choice-of-law rules for a state that held its married women liable on
guarantees of their husband's debts); see also Weinberg, supra note
33, at 86 n.177 (arguing that states cannot legitimately assert
interest in applying other state's law). But see Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482,
485-86 (9th Cir. 1987) (asserting California's interest in applying
Arizona law to benefit California litigant); David Cavers, The Proper
Law of Producer's Liability, 26 Int'l & Comp. L.Q. 703, 715 (1977)
(arguing that in products liability cases where plaintiff's state has
pro-defendant law, plaintiff's state has interest in applying
pro-plaintiff law of state where product was sold or manufactured).
n163 See Currie & Schreter,
Equal Protection, supra note 40, at 42-51.
n164 See Weintraub, supra note
11, § 10.21, at 574;
Simson, supra note 37, at 84-85; Weinberg, Place of Trial, supra note
44, at 86-87.
n165 See Mark P. Gergen,
Equality and the Conflict of Laws, 73 Iowa L. Rev. 893, 902-09 (1988).
The same point appears in Singer, supra note 17, at 64-74.
n166 See infra notes 391-420 and
n167 U.S. Const. art. III, §
2, cl. 1.
n168 See Baxter, supra note 34,
at 34-41; Henry J. Friendly, The Historic Basis of Diversity
Jurisdiction, 41 Harv. L. Rev. 483 (1928).
n169 Act of Sept. 24, 1789, ch.
20, § 11, 1 Stat. 73,
n170 Act of March 3, 1875, ch.
137, § 1, 18 Stat., pt.
3, at 470 (codified as amended at 28 U.S.C. §
n171 The Federalist, supra note
90, No. 80, at 478 (Alexander Hamilton).
The bracketed verb is missing from Hamilton's sentence, due
either to a drafting error or to his sense that the verb was implicit
in the word "maintenance."
n173 See Friendly, supra note
168, at 492 n.44.
n174 The Federalist, supra note
90, No. 80, at 476 (Alexander Hamilton).
n175 14 Oxford English
Dictionary 990 (2d ed. 1989) [hereinafter OED] ("sentence",
def. 3b, collecting examples from 1386 to 1857).
It is clear from context that Hamilton meant to include civil
n176 The Federalist, supra note
90, No. 80, at 477 (Alexander Hamilton).
n177 See id. at 476-78.
This intention does not depend on the historical accuracy of
his German example, of which I have no knowledge.
n178 See Baxter, supra note 34,
at 34-41; see also John Hart Ely, The Irrepressible Myth of Erie, 87
Harv. L. Rev. 693 (1974) (analysis of diversity jurisdiction by
another scholar who has written about choice of law).
n179 See, e.g., the reported
remarks of James Wilson, arguing for the diversity jurisdiction at the
Pennsylvania ratifying convention:
[I]s it not necessary, if we
mean to restore either public or private credit, that foreigners, as
well as ourselves, have a just and impartial tribunal to which they
may resort? I would ask how a merchant must feel to have his property
lie at the mercy of the laws of Rhode Island. . . .
[S]ecurity [for contracts] cannot be obtained, unless we give
the power of deciding upon those contracts to the general government.
The Debates in the Several State Conventions on the Adoption of the
Federal Constitution 491-92 (Jonathan Elliot ed., 2d ed. 1836)
[hereinafter Elliot]. Wilson's
speeches at the Pennsylvania convention were apparently revised for
publication for the source that was later incorporated into Elliot.
See James H. Hutson, The Creation of the Constitution: The
Integrity of the Documentary Record, 65 Tex. L. Rev. 1, 22-23 (1986).
Thus, Elliot accurately reports the argument Wilson wanted to make to
the public, although he may not reliably report what was said on the
floor of the convention. Wilson's
contribution to the Constitution has been called second only to
Madison's. See Ralph A.
Rossum, James Wilson, in 4 Encyclopedia of the American
Constitution 2067, 2067 (Leonard W. Levy et al. eds., 1986)
n180 See Baxter, supra note 34,
n181 See Henry M. Hart, Jr.
& Herbert Wechsler, The Federal Courts and the Federal System
635-36 (1953); Henry M. Hart, Jr., The Relations Between State and
Federal Law, 54 Colum. L. Rev. 489, 513-15 (1954).
n182 See U.S. Const. art. IV, §
2, cl. 1 (Privileges and Immunities Clause).
n183 See id. art. I, §
10, cl. 1 (Contracts Clause).
n184 See id. (Legal Tender
n185 41 U.S. (16 Pet.) 1 (1842).
n186 See, e.g., remarks of James
Wilson quoted supra note 179; 4 The Complete Anti-Federalist 77-78
(Herbert J. Storing ed., 1981) [hereinafter Storing, Anti-Federalist]
(Letter of Agrippa, Dec. 11, 1787).
Agrippa was an anti-federalist, thought to be James Winthrop of
Cambridge, Massachusetts. See
4 Storing, Anti-Federalist, supra, at 68.
n187 See infra notes 335-339 and
n188 See William A. Fletcher,
The General Common Law and Section 34 of the Judiciary Act of 1789:
The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1513-38
(1984); Leonard S. Goodman, Eighteenth Century Conflict of Laws:
Critique of an Erie and Klaxon Rationale, 5 Am. J. Legal Hist. 326,
n189 See Fletcher, supra note
188, at 1513-38.
n190 See id. at 1515
("after Swift, a state court in a commercial case could
declare that it followed a local rule rather than the general common
law but . . . a federal court sitting in that state would nevertheless
follow the general common law"); see also id. at 1558-62
(describing such problems even before Swift).
n191 304 U.S. 64, 74-78 (1938).
n192 See Gottesman, supra note
17, at 30-32.
n193 313 U.S. 487 (1941).
n194 See id. at 496-97.
n195 See, e.g., Warner v.
Auberge Gray Rocks Inn, Ltee., 827 F.2d 938, 942 (3d Cir. 1987)
(applying New Jersey's longer statute of limitations solely because of
"New Jersey's well-recognized interest in compensating its
injured domiciliaries") (quoting Dent v. Cunningham, 786 F.2d
173, 177 (3d Cir. 1986)); Petrella v. Kashlan, 826 F.2d 1340, 1343 (3d
Cir. 1987) (applying New Jersey law to reduce damages, in part because
of New Jersey's interest in determining how much its defendants should
pay); Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 485 (9th
Cir. 1987) (applying Arizona statute of limitations to permit suit by
California plaintiff, in part because California had no "interest
in applying its statute of limitations in order to protect the
[Arizona] defendants" but did have "interest in allowing its
residents to recover").
n196 See David F. Cavers, The
Changing Choice-of-Law Process and the Federal Courts, 28 Law &
Contemp. Probs. 732, 735-43 (1963).
Cavers was not an interest analyst, but he shared the interest
analysts' hostility to firm rules that select the jurisdiction to
govern a dispute without first considering the content of each
jurisdiction's law. See
Cavers, supra note 9, at 173-76.
n197 See Cavers, supra note 196,
n198 See id. at 736.
n199 See id.
n200 See id. at 741-42.
John Ely makes the same assumption, and his defense of Klaxon
entirely depends on it. See Ely, supra note 178, at 714-15 n.125.
n201 See Cavers, supra note 196,
n202 Kramer, supra note 101, at
1067; see also Kramer, supra note 17, at 302 (arguing that pursuit of
state interests is not parochial, but rather is a means of
accommodating other states' interests).
n203 See Sedler, supra note 41,
n204 See supra notes 112-129 and
n205 Robert A. Sedler, The
Negative Commerce Clause as a Restriction on State Regulation and
Taxation: An Analysis in Terms of Constitutional Structure, 31 Wayne
L. Rev. 885, 1027 (1985) (emphasis added).
n206 See Currie, supra note 145,
at 256-57; Currie & Schreter, Equal Protection, supra note 40, at
35-42 ("[D]ifferential treatment of nonresidents on the basis of
their domiciliary laws cannot be justified unless the law of the forum
expresses two policies, one of which sustains the judgment against the
disfavored nonresident."); Currie & Schreter, Privileges and
Immunities, supra note 40, at 1374-76 ("Such a solution is not
possible unless it can be reasonably maintained that the state has two
relevant policies, e.g., a general policy of security of
transactions and an exceptional policy of protecting local married
n207 Currie & Schreter,
Equal Protection, supra note 40, at 12 ("[A] classification in
terms of residence or citizenship is not reasonable merely because it
coincides with the limits of a state's interest in applying its
law."); Currie & Schreter, Privileges and Immunities, supra
note 40, at 1373-74, 1377 ("[W]hen the law of a state provides
benefits for its residents generally, the same benefits should be
extended to citizens of other states unless there is some substantial
reason, in addition to the fact that the governmental interests of
the state do not require extension of the benefit to foreigners,
for limiting the benefit to residents.") (emphasis added).
n208 See, e.g., Sedler, supra
note 47, at 626-27; Gene R. Shreve, Interest Analysis as
Constitutional Law, 48 Ohio St. L.J. 51, 66-67 (1987).
n209 See, e.g., Weintraub, supra
note 11, § 6.13, at 307
("The domicile of the plaintiff has an interest in providing
compensation for him. . . . The
plaintiff's domicile has no interest in insulating the defendant from
liability."); Kramer, supra note 101, at 1070 ("[I]f state
interests are triggered by domicile, a true conflict will usually
arise where each state's law favors its resident."); Sedler,
supra note 158, at 134 ("[T]the only state concerned with his
welfare is his home state.").
n210 See Weintraub, supra note
11, § 6.10, at 301-02;
Sedler, supra note 47, at 621. For
a showing that this euphemism is either a restatement of the
conclusion, or an unacknowledged reversion to territorialism, see
Brilmayer, supra note 6, at 80.
n211 See, e.g., Ledesma v. Jack
Stewart Produce, Inc., 816 F.2d 482, 485-86 (9th Cir. 1987) (applying
longer Arizona statute of limitations to preserve claim of California
plaintiff, because California had interest in preserving plaintiff's
claim and no interest in protecting out-of-state defendant); Dent v.
Cunningham, 786 F.2d 173, 176-77 (3d Cir. 1986) (applying longer New
Jersey statute of limitations to preserve claim of New Jersey
plaintiff injured in California, but remanding to decide if New Jersey
had lost its interest in compensating second plaintiff, who had moved
out of the state); Guillory ex rel. Guillory v. United States, 699
F.2d 781, 786-87 (5th Cir. 1983) (applying more generous Louisiana
measure of damages for Louisiana plaintiffs alleging wrongful death in
Texas); Wallis v. Mrs. Smith's Pie Co., 550 S.W.2d 453, 458-59 (Ark.
1977) (applying Arkansas comparative fault rule to preserve claim of
Arkansas plaintiff injured in Missouri).; Hague v. Allstate Ins. Co.,
289 N.W.2d 43, 44-50 (Minn. 1979) (applying Minnesota law to increase
Minnesota plaintiff's recovery on Wisconsin insurance policy issued to
Wisconsin resident killed in Wisconsin), aff'd, 449 U.S. 302 (1981).
n212 See Hurtado v. Superior
Court, 522 P.2d 666, 672-73 (Cal. 1974); Kramer, More Notes, supra
note 31, at 270.
n213 See Singer, supra note 17,
n214 See Brainerd Currie, Notes
on Methods and Objectives in the Conflict of Laws, 1959 Duke L.J. 171,
n215 See Hernandez v. Burger,.
162 Cal. Rptr. 564, 568 (Cal. Ct. App. 1980).
n216 See, e.g., Kaczmarek v.
Allied Chem. Corp., 836 F.2d 1055, 1057 (7th Cir. 1987)
("pervasive uncertainty"); Hill, Judicial Function, supra
note 14, at 1601 ("chaos to a degree probably unprecedented in
the law"). For a
collection of similar characterizations, see Gottesman, supra note 17,
at 11-12 n.42.
n217 See Brilmayer, supra note
6, at 139-40 (arguing that proliferation of interests and preference
for forum law has protected interest analysis from invalidation on
ground of discrimination against nonresidents).
n218 For famous examples of
choice-of-law revolutionaries drifting back into largely territorial
rules, see, e.g., Neumeier v. Kuehner, 286 N.E.2d 454, 457-58 (N.Y.
1972) (announcing rules for guest-statute cases that would apply law
of place of wrong to nearly all cases where host and guest have
different domiciles); Cavers, supra note 11, at 139-80 (proposing five
"principles of preference" for choice of law, each of which
would apply the law of either the place of wrongful conduct, the place
of injury, or the place of the relationship between the parties).
n219 See Weintraub, supra note
11, § 6.10, at 303
("[T]he place of impact has an interest in shaping its tort rules
so as to discourage conduct that will result in harmful impacts within
its borders."); Kramer, supra note 17, at 297 ("[T]he
occurrence of the accident in Wisconsin triggers Wisconsin's interest
in regulating conduct").
n220 See, e.g., Bader v. Purdom,
841 F.2d 38 (2d Cir. 1988) (applying Ontario law to impose liability
on New York residents for negligence in Ontario); Hurtado v. Superior
Court, 522 P.2d 666 (Cal. 1974) (awarding more generous California
measure of damages to Mexican injured in California); Rosett v.
Schatzman, 510 N.E.2d 968, 969-70 (Ill. App. Ct. 1987) (applying
Florida law to impose liability on Illinois defendant for Illinois
plaintiff's slip and fall in defendant's winter home).
n221 For the academic view that
modern choice-of-law cases embody a systemic bias in favor of
plaintiffs, see, e.g., Brilmayer, Legislative Intent, supra note 19,
at 398-99; Weinberg, supra note 33, at 65-67 & n.66.
n222 See, e.g., Kaczmarek v.
Allied Chem. Corp., 836 F.2d 1055, 1059 (7th Cir. 1987) (applying
Indiana law to bar claim of Illinois plaintiff injured in Indiana);
Blakesley v. Wolford, 789 F.2d 236, 241-43 (3d Cir. 1986) (applying
less-protective Texas law to claim of Pennsylvania plaintiff injured
in Texas); Eger v. E. I. DuPont DeNemours Co., 539 A.2d 1213, 1217-20
(N.J. 1988) (applying South Carolina law to bar claim of New Jersey
plaintiff injured in South Carolina). Each of these cases applied either interest analysis or the
n223 See Shutts v. Phillips
Petroleum Co., 679 P.2d 1159, 1180-81 (Kan. 1984) (applying Kansas law
to increase interest payable on suspense royalties owed to Texas,
Oklahoma, and Louisiana residents on oil leases in Texas, Oklahoma,
and Louisiana), rev'd, 472 U.S. 797 (1985); Bruce Posnak, Choice of
Law: Interest Analysis and Its "New Crits," 36 Am. J. Comp.
L. 681, 725-26 (1988) (urging application of more generous New York
law to compensate nonresidents injured in their home states and not
involved in any New York relationship).
n224 See Gergen, supra note 165,
n225 See Brilmayer, supra note
6, at 79, 138-39; Brilmayer, Interstate Equality, supra note 19, at
412-13; Ely, supra note 22, at 194-207.
n226 See Restatement (Second),
supra note 15, at § § 260-265,
317. This rule does not
apply to land in other states. See
id. § § 236-243.
n227 See 2 The Records of the
Federal Convention of 1787 at 454 (Max Farrand ed., rev. ed. 1966)
n228 Cf. id. ("The existing
small states enjoy an equality now, and for that reason
are admitted to it in the Senate.") (statement of Mr.
n229 See U.S. Const. art. I, §
2, cl. 3.
n230 Virginia statute of Jan. 2,
1781, quoted in Pollard v. Hagan, 44 U.S. (3 How.) 212, 221 (1845).
For the date, see Merrill Jensen, The Articles of Confederation 235
n231 An Ordinance for the
Government of the Territory of the United States northwest of the
river Ohio, art. V (1787) (reprinted at 1 Stat. 51 n.(a) (1789)).
n232 Act of May 26, 1790, ch. 14
§ 1, 1 Stat. 123.
n233 Act of Feb. 18, 1791, ch.
7, 1 Stat. 191 (Vermont); Act of Feb. 4, 1791, ch. 4, §
2, 1 Stat. 189 (Kentucky).
n234 See, e.g., Act of Mar. 18,
1959, Pub. L. No. 86-3, § 1,
73 Stat 4 (Hawaii); Act of June 1, 1796, ch. 47, 1 Stat. 491
(Tennessee). For the
statement that there are no exceptions after Kentucky, see Coyle v.
Smith, 221 U.S. 559, 567 (1911).
n235 Coyle, 221 U.S. at
580; accord, e.g., Permoli v. Municipality No. 1, 44 U.S. (3 How.)
589, 609-10 (1845); Pollard v. Hagan, 44 U.S. (3 How.) 212, 223, 229
n236 U.S. Const. art. IV, §
n237 Act of Sept. 24, 1789, ch.
20, § 34, 1 Stat. 73, 92
(codified as amended at 28 U.S.C. §
n238 See Underwriters Nat'l
Assurance Co. v. North Carolina Life & Accident & Health Ins.
Guar. Ass'n, 455 U.S. 691, 704-05 & n.10 (1982).
n239 See 2 Farrand, supra note
227, at 447, 488.
n240 See Act of May 26, 1790,
ch. 11, 1 Stat. 122 (implementing Full Faith and Credit Clause and
providing for authentication of records, judicial proceedings, and
"acts of the legislatures of the several states").
n241 See Hughes v. Fetter, 341
U.S. 609, 611 (1951); John Hancock Mutual Life Ins. Co. v. Yates, 299
U.S. 178, 183 (1936); Bradford Elec. Light Co. v. Clapper, 286 U.S.
145, 154-55 (1932).
n242 See 1 OED, supra note 175,
at 123 ("act," definition 5, collecting examples from 1458
to 1839). Federal
statutes were called Acts of Congress from the very beginning.
See, e.g., Act of June 1, 1789, ch. 1, 1 Stat. 23.
n243 See Weintraub, supra note
11, § 9.3A at 553;
Walter Wheeler Cook, The Powers of Congress Under the Full Faith and
Credit Clause, 28 Yale L.J. 421, 433 (1919); Currie, supra note 39, at
15; Gottesman, supra note 17, at 23-25.
n244 See Magnolia Petroleum Co.
v. Hunt, 320 U.S. 430, 436 (1943), overruled on other grounds by
Thomas v. Washington Gas Light Co., 448 U.S. 261 (1980); Currie, supra
note 39, at 15-16; Jackson, supra note 1, at 5.
n245 See 1 William W. Crosskey,
Politics and the Constitution in the History of the United States
545-47 (1953); Martin, supra note 46, at 137 (following Crosskey).
n246 See Leflar, supra note 43,
at 710 ("rule of law derives from the official act of a public
agency"); James Smith, The Constitution and the Conflict of Laws,
27 Geo. L.J. 536, 558 (1939).
n247 See Whitten, supra note 42,
at 56-60. This claim is
wholly derivative from Whitten's more general claim that the Full
Faith and Credit Clause is merely a rule of evidence.
That claim is considered infra notes 304-331 and accompanying
text; see also Cook, supra note 243, at 434 n.27a (assuming without
analysis that the Clause does not apply to common law); Gottesman,
supra note 17, at 26 (accepting Whitten's conclusion on faith and
credit to common law); Nadelmann, supra note 42, at 75 (assuming
without analysis that Clause does not apply to common law).
n248 See Whitten, supra note 42,
n249 304 U.S. 64, 78 (1938).
n250 See Gottesman, supra note
17, at 27 ("in light of Erie, it would be wholly anomalous
to construe the Full Faith and Credit Clause as distinguishing between
state judicial and legislative law-making").
n251 See Nadelmann, supra note
42, at 73. Nadelmann's
policy argument is considered infra notes 270-277 and accompanying
n252 2 Farrand, supra note 227,
at 485 (emphasis added).
n253 Id. at 488 (emphasis
added). All the motions,
votes, and quotations, on this amendment and on Madison's amendment,
are reported id. at 486-89.
n254 Id. at 488-89.
George Mason is also recorded as speaking to the amendment, but
his statement appears to have been garbled: "Col: Mason favored
the motion, particularly if the 'effect' was to be restrained to
judgments & Judicial proceedings." Id. at 488.
Perhaps he actually opposed the motion; Virginia voted no.
Perhaps Mason misunderstood it, or perhaps Madison
misunderstood him. But it
is hard to see how the motion can be read as confining the effects to
judgments and judicial proceedings, and none of the three speakers who
followed Mason appear to have taken the possibility seriously.
n255 Id. at 448.
n256 Id. at 489 (emphasis
n257 Id. at 601.
n258 See id. at 633.
n259 See Hutson, supra note 179,
n260 See Nadelmann, supra note
42, at 73 ("The First Congress, in using as it did the power to
prescribe 'effects' with respect to records and proceedings, but not
with respect to public acts, must have had this view" that the
constitutional clause was not self-executing with respect to acts.).
n261 See Pacific Employers Ins.
Co. v. Industrial Accident Comm'n, 306 U.S. 493, 502 (1939); Cramton
et al., supra note 18, at 410; Nadelmann, supra note 42, at 61;
Russell J. Weintraub, Due Process and Full Faith and Credit
Limitations on a State's Choice of Law, 44 Iowa L. Rev. 449, 488
(1959); Whitten, supra note 42, at 53.
n262 See Atchison, Topeka &
Santa Fe Ry. v. Sowers, 213 U.S. 55, 64-65 (1909).
n263 Act of May 26, 1790, ch.
11, 1 Stat. 122 (last two emphases added).
n264 See 1 Crosskey, supra note
245, at 545-47; 13 OED, supra note 175, at 359 ("record,"
definition 4, collecting examples from 1455 to 1838).
n265 See Thompson v. Musser, 1
Dall. 458, 466 (Pa. 1789) (Atlee, J., seriatim) (using
"record" to refer to the relevant statutes of a sister
state); Sir Geoffrey Gilbert, The Law of Evidence 5 (6th ed. 1801)
("And first of Records. Those
are the Memorials of the Legislature, and of the Kings Court of
n266 41 U.S. (16 pet.) 1, 18-19
n267 See Erie R.R. v. Tompkins,
304 U.S. 64, 78-80 (1938).
n268 See Weintraub, supra note
261, at 488 (if the Constitution is self-executing, "I find it
difficult to see how anything important turned upon the absence of the
word 'acts' from the federal statute.").
n269 Act of June 25, 1948, ch.
646, 62 Stat. 947 (codified at 28 U.S.C. §
n270 See Alaska Packers Ass'n v.
Industrial Accident Comm'n, 294 U.S. 532, 547 (1935); Simson, supra
note 37, at 66; Singer, supra note 17, at 60; Louise Weinberg, On
Departing from Forum Law, 35 Mercer L. Rev. 595, 618 (1984); see also
Nadelmann, supra note 42, at 73 (same claim by a scholar not
identified as an interest analyst); Whitten, supra note 42, at 61-62
n271 See Nadelmann, supra note
42, at 44; Sumner, supra note 38, at 237; Ralph U. Whitten, The
Constitutional Limitations on State-Court Jurisdiction: A
Historical-Interpretative Reexamination of the Full Faith and Credit
and Due Process Clauses (Part One), 14 Creighton L. Rev. 499, 508-23
n272 See supra notes 55-61 and
accompanying text; see also Weintraub, supra note 11, §
9.3, at 540-68 (collecting cases).
n273 Act of May 26, 1790, ch.
11, 1 Stat. 122 (emphasis added).
n274 28 U.S.C. §
1738 (1988) (emphasis added).
n275 See Simson, supra note 37,
at 67-68; Sumner, supra note 38, at 246-49.
But see Simson, supra note 151, at 279 (proposing limited forum
preference, apparently abandoning uniformity of result).
n276 See Regan, supra note 27,
at 1894 ("[T]he full faith and credit clause does not set down
principles of legislative jurisdiction.
Rather, it presupposes them."); Max Rheinstein, The
Constitutional Bases of Jurisdiction, 22 U. Chi. L. Rev. 775, 788-89,
816 (1955) (arguing that Full Faith and Credit Clause is
"meaningless" without "a full-fledged system of
conflict of laws," which the Founders believed was part of the
Law of Nations).
n277 See infra notes 363-390 and
n278 The Act originally
provided: "That the laws of the several states, except where the
constitution, treaties or statutes of the United States shall
otherwise require or provide, shall be regarded as rules of decision
in trials at common law in the courts of the United states in cases
where they apply." Act of Sept. 24, 1789, ch. 20, §
34, 1 Stat. 73, 92 (codified as amended at 28 U.S.C. §
1652 (1988)). For an earlier recognition of the Act's
significance in this context, see Baxter, supra note 34, at 41.
n279 See, e.g., Wayman v.
Southard, 23 U.S. (10 Wheat.) 1, 48 (1825) (stating that the Act
"is the recognition of a principle of universal law; the
principle that in every forum a contract is governed by the law with a
view to which it was made."); Fletcher, supra note 188, at
1527-38 (collecting early cases and treatises).
For similar modern analyses, see Baxter, supra note 34, at
40-41; Hart, supra note 181, at 515; Horowitz, supra note 36, at
1204-05; Whitten, supra note 42, at 36 n.172.
n280 2 Farrand, supra note 227,
at 448 (emphasis added).
n281 For the statement that the
practice was reformed in 1795, see Bissell v. Briggs, 9 Mass. 461, 473
n. + (1813) (note apparently written by the reporter).
n282 The Massachusetts statute
is quoted in Ingersoll's argument for plaintiff in Phelps v. Holker, 1
Dall. 261, 263-64 (Pa. 1788).
n283 See Kibbe v. Kibbe, 1 Kirby
119, 126 (Conn. 1786).
n284 Phelps, 1 Dall. at
261, quoting the sheriff's return on the Massachusetts writ (emphasis
added by reporter).
n285 Rogers v. Coleman, 3 Ky.
(Hard.) 422, 427 (1808) (reporting the practice with disapproval); see
also Kibbe, 1 Kirby at 123 ("I attached a handkerchief,
shown to me by the plaintiff's attorney").
n286 Mills v. Duryee, 11 U.S. (7
Cranch) 481, 486 (1813) (Johnson, J., dissenting).
n287 Id. at 483-85 (opinion of
n288 D'Arcy v. Ketchum, 52 U.S.
(11 How.) 165, 174-76 (1850); see also Hampton v. M'Connel, 16 U.S. (3
Wheat.) 234, 236 n.c (1818) (reserving the issue).
n289 See Mills, 11 U.S.
(7 Cranch) at 483-85; Green v. Sarmiento, 10 F. Cas. 1117, 1119-20
(C.C.D. Pa. 1810) (No. 5,760) (decided under Full Faith and Credit
Act, suggesting but not deciding on a jurisdictional exception);
Jenkins v. Putnam, 1 S.C.L. (1 Bay) 8, 10 (1784) (decided under
Articles of Confederation); see also Montford v. Hunt, 17 F. Cas. 616,
617 (C.C.D. Pa. 1811) (No. 9725) (holding federal judgments conclusive
even though not covered by Full Faith and Credit Clause, because it
would be anomalous to hold state judgments conclusive but not federal
n290 See Mills, 11 U.S.
(7 Cranch) at 486 (Johnson, J., dissenting); Banks v. Greenleaf, 2 F.
Cas. 756, 759 (C.C.D. Va. 1799) (No. 959); Armstrong v. Carson's
Ex'rs, 1 F. Cas. 1140, 1140 (C.C.D. Pa. 1794) (No. 543); Smith v.
Rhoades, 1 Day 168, 170 (Conn. 1803) (decided without reported
reference to Full Faith and Credit Clause); Kibbe v. Kibbe, 1 Kirby
119, 126 (Conn. 1786) (subject to Articles of Confederation but
decided without reported reference to them); Rogers v. Coleman, 3 Ky.
(Hard.) 422, 424-26 (1808); Bissell v. Briggs, 9 Mass. 461, 466-67
(1813); Bartlet v. Knight, 1 Mass. 401, 409 (1805) (Sedgwick, J.,
seriatim); Curtis v. Gibbs, 2 N.J.L. 377, 378-85 (1805) (Pennington,
J., seriatim); Hitchcock v. Aicken, 1 Cai. R. 460, 461-66 (N.Y. 1803)
(Thompson, J., dissenting); id. at 466-74 (Livingston, J.,
n291 See Bartlet, 1 Mass.
at 404-05 (Thacher, J., seriatim); Curtis, 2 N.J.L. at 385
(Kirkpatrick & Russell, JJ., seriatim); Phelps v. Holker, 1 Dall.
261 (Pa. 1788); see also Betts v. Death, 1 Add. 265, 266 (Fayette
County Ct., Pa., 1795) (covered neither by the Constitution nor the
Full Faith and Credit Act as it then stood, because judgment came from
a territorial court).
n292 See Bissell, 9 Mass.
at 472-79 (Sewall, J., dissenting); Bartlet, 1 Mass. at 405-07
(Sewall, J., seriatim); Hitchcock, 1 Cai. R. at 474-78
(Radcliffe, J., seriatim); id. at 478-83 (Kent, J., seriatim); Wright
v. Tower, 1 Brown at Appendix i, viii-xviii (Luzerne County, Pa. C.P.
n293 See Peck v. Williamson, 19
F. Cas. 85 (C.C.D.N.C. 1813) (No. 10,896) (defendant introduced
"very strong testimony" to impeach judgment); Hitchcock,
1 Cai. R. at 483-84 (Lewis, J., seriatim) (fearing judgments obtained
by fraud or without jurisdiction).
n294 See Hitchcock, 1
Cai. R. 460.
n295 Taylor v. Bryden, 8 Johns.
173, 176-78 (N.Y. 1811).
n296 See Bissell, 9 Mass.
at 467 ("the public acts, records, and judicial proceedings,
contemplated, and to which full faith and credit are to be given, are
such as were within the jurisdiction of the state whence they shall be
taken," and Clause does not change "the jurisdiction of the
legislatures, or of the courts") (dictum as to acts); Millar v.
Hall, 1 Dall. 229, 232 (Pa. 1788) (applying Maryland bankruptcy act
under law of nations and full faith and credit clause of Articles of
also summarizes an apparently unreported decision in the United States
Circuit Court for the District of New Hampshire, which refused to
enforce a Massachusetts statute authorizing the sale of land in New
Hampshire, because "the full faith and credit that were to be
given to public acts of the legislature, were confined to those acts
which a legislature had lawful authority to pass." Bissell,
9 Mass. at 467-68.
n297 See James v. Allen, 1 Dall.
188, 191-92 (Phila. C.P. 1788); see also Hitchcock, 1 Cai. R.
at 481 (Kent, J., seriatim) (reasoning that full faith and credit must
be merely an evidentiary rule because it applies to acts as well as
n298 Bonaparte v. Tax Court, 104
U.S. 592, 594 (1881).
n299 Id. at 595.
n300 Chicago & Alton R.R. v.
Wiggins Ferry Co., 119 U.S. 615, 622 (1887) (citation omitted).
n301 U.S. Const. art. IV, §
n302 See Sun Oil Co. v. Wortman,
486 U.S. 717, 729 (1988); Cook, supra note 243, at 425-26; Currie,
supra note 145, at 266-67; Gottesman, supra note 17, at 23-28;
Nadelmann, supra note 42, at 80.
n303 For similar conclusions,
see 1 Crosskey, supra note 245, at 549-54; Baxter, supra note 34, at
40-42; Horowitz, supra note 36, at 1200-05; Rheinstein, supra note
276, at 816.
n304 See Whitten, supra note 42,
at 12-56; Whitten, supra note 271, at 503-78.
n305 See Whitten, supra note
271, at 557, 600 ("[A] requirement of admissibility logically
implies some effect as evidence, if only an effect as
conclusive proof of existence and content.").
n306 See Whitten, supra note 42,
at 52; Whitten, supra note 271, at 567.
n307 11 U.S. (7 Cranch) 481
n308 Id. at 485.
n309 See Underwriters Nat'l
Assurance Co. v. North Carolina Life & Accident & Health Ins.
Guar. Ass'n, 455 U.S. 691, 703-16 (1982); Lea Brilmayer, Credit Due
Judgments and Credit Due Laws: The Respective Roles of Due Process and
Full Faith and Credit in the Interstate Context, 70 Iowa L. Rev. 95,
97-103 (1984) (reviewing the law of interstate recognition of
n310 See Whitten, supra note 42,
at 54 & n.268; Whitten, supra note 271, at 569 n.304.
n311 See Whitten, supra note 42,
at 54-56; Whitten, supra note 271, at 569-70.
n312 Whitten, supra note 42, at
n313 See id. at 60-62.
n314 See Phillips Petroleum Co.
v. Shutts, 472 U.S. 797, 816-23 (1986).
n315 See Whitten, supra note
271, at 526, 553-54, 568-69.
n316 See supra notes 270-303 and
n317 Whitten, supra note 271, at
571 n.307 (collecting cases); supra notes 288-291 and accompanying
n318 See Whitten, supra note
271, at 599.
n319 See id. at 508-35; Whitten,
supra note 42, at 12-31.
n320 See Whitten, supra note 42,
at 12-31; Whitten, supra note 271, at 508-35.
n321 See Whitten, supra note 42,
at 12-17; Whitten, supra note 271, at 511, 514-20.
n322 Whitten, supra note 42, at
26; Whitten, supra note 271, at 526, 533-34, 535, 541-42.
n323 See Nadelmann, supra note
42, at 34-53.
n324 See Whitten, supra note
271, at 509-20.
n325 2 Farrand, supra note 227,
at 489; see supra note 254 and accompanying text.
n326 See cases collected supra
n327 See, e.g., Mills v. Duryee,
11 U.S. (7 Cranch) 481, 485 (1813) ("utterly unimportant and
illusory"); Rogers v. Coleman, 3 Ky. (Hard.) 422, 424 (1808)
("senseless, dumb"); Bartlet v. Knight, 1 Mass. 401, 409
(1805) (Sedgwick, J., seriatim) ("altogether idle and
insignificant"); Curtis v. Gibbs, 2 N.J.L. 377, 380 (1805)
(Pennington, J., seriatim) ("most absurd and unnecessary");
Hitchcock v. Aicken, 1 Cai. R. 460, 466 (N.Y. 1803) (Thompson, J.,
dissenting) ("useless; nay, worse it is mischievous, being
calculated to mislead"); id. at 468 ("senseless and
n328 See supra notes 288-291 and
n329 See, e.g., Montford v.
Hunt, 17 F. Cas. 616, 617 (C.C.D. Pa. 1811) (No. 9,725) (counsel
relying on Constitution); Bissell v. Briggs, 9 Mass. 461, 466 (1813)
(relying on "the express words of the constitution").
n330 See, e.g., Armstrong v.
Carson's Ex'rs, 1 F. Cas. 1140, 1140 (C.C.D. Pa. 1794) (No. 543)
("whatever doubts there might be on the words of the
constitution, the act of congress effectually removes them").
Mills said that if the Act, as written, did not make
judgments conclusive, then "this clause in the constitution would
be utterly unimportant and illusory," 11 U.S. (7 Cranch) at 485,
an argument that makes sense only if the Act and Constitution meant
the same thing.
n331 Mills, 11 U.S. (7
Cranch) at 485 (quoting Act of May 26, 1790, ch. 11, 1 Stat. 122).
n332 See Sedler, supra note 41,
at 95-96; Robert Allen Sedler, Babcock v. Jackson in Kentucky:
Judicial Method and the Policy-Centered Conflict of Laws, 56 Ky. L.J.
27, 34-36 (1967). Cf. Whitten, supra note 271, at 545 (arguing that
choice-of-law issues were prominent at the time of the Constitutional
Convention, and sufficiently complicated that it made sense to leave
them to Congress).
n333 See Goodman, supra note
188, at 339 ("[I]t appears to have been unquestioned by both
those favoring and those opposing the Constitution that the document
contemplated a federal conflict of laws in diversity cases.").
n334 Alexander N. Sack,
Conflicts of Laws in the History of the English Law, in 3 Law:
A Century of Progress 342, 375-85 (1937).
n335 See supra note 280 and
n336 See 2 Farrand, supra note
227, at 448.
n337 The Federalist, supra note
90, No. 82, at 493 (Alexander Hamilton); see also id., No. 80, at
476-77 (Alexander Hamilton) (distinguishing cases "where the
subject of controversy was wholly relative to the lex loci" from
those subject to "treaty or the general law of nations");
id., No. 42 at 270 (James Madison) (attacking a defect in the Articles
of Confederation on the ground that "the law of one State [might]
be preposterously rendered paramount to the law of another, within the
jurisdiction of the other").
n338 See 3 Elliot, supra note
179, at 542.
n339 Id. at 556-57.
The Virginia convention was not reliably reported, due to the
inadequacies of eighteenth-century shorthand and the partisanship of
the reporter. See Hutson,
supra note 179, at 23-24. Half
a century later, Marshall reportedly complained that he would not not
have recognized his own speeches if his name were not attached to
them. The statement
appears in Thomas H. Bailey's memorandum of an 1832 conversation,
quoted in 1 The Papers of John Marshall 256 n.7 (Herbert A. Johnson
ed., 1974). But the
detailed statement quoted here could not be a garbled version of a
statement about something else altogether.
The statement is reliable at least for the limited purpose of
showing that the concept of choice-of-law was known in Virginia in
n340 See Kissam v. Burrall, 1
Kirby 326 (Conn. 1787) (applying laws and customs of New York to a New
York transaction); Phenix v. Prindle, 1 Kirby 207 (Conn. 1787) (same);
Bromfield v. Little, (Mass. Super. 1764), in Reports of Cases
Argued and Adjudged in the Superior Court of Judicature of the
Province of Massachusetts Bay, Between 1761 and 1772, at 108 (Josiah
Quincy, Jr. ed., 1865) [hereinafter Quincy] (distinguishing custom of
Mass. from custom of England, and applying Mass. rule to Mass.
transaction); Jones v. Belcher, (Mass. Super. 1762), in id. at
9 ("as the Bond was given to a Person here, (not the Creditor in
England,) and the Debt was become his, New England Interest ought to
be granted"); Thompson v. Musser, 1 Dall. 458, 463 (Pa. 1789)
(McKean, J., seriatim) (applying Va. statute and holding statute was
adequately proved by uncertified copy in usual form for Virginia);
Millar v. Hall, 1 Dall. 229 (Pa. 1788) (enforcing Md. bankruptcy law);
Camp v. Lockwood, 1 Dall. 393, 403 (Phila. C.P. 1788) (applying
confiscatory statute of Conn.); Winthrop v. Pepoon, Otis & Co., 1
S.C.L. (1 Bay) 468, 470 (1795) (applying law of place where bill of
exchange was drawn); James & Shoemaker v. M'Credie & Co., 1
S.C.L. (1 Bay) 294, 295 (1793) (applying usage and custom of
Philadelphia); Executors of Fowl v. Todd, 1 S.C.L. (1 Bay) 176, 177
(1791) (refusing to apply to out-of-state contracts a statute
devaluing South Carolina currency); see also Steinmetz v. Currie, 1
Dall. 270, 270 (Pa. 1788) (applying the "universal and
established usage of all countries . . . and not the local regulations
of Pennsylvania"); cf. Rutgers v. Waddington (N.Y. Mayor's Ct.
1784), in Select Cases of the Mayor's Court of New York City
1674-1784 at 302, 325-26 (Richard B. Morris ed., 1935) [hereinafter
Morris, Cases] (construing New York statute as not intended to
override the applicable law of nations).
n341 In addition to the cases
cited supra note 340, see McCullough v. Houston, 1 Dall. 441, 442 (Pa.
1789) ("the assignment of [bonds and promissory notes] as well as
the form, operation and effect of such assignment, depends entirely
upon the municipal law of the place where it is made").
n342 Hamilton argued Rutgers v.
Waddington (N.Y. Major's Ct. 1784), in Morris, Cases, supra
note 340. He proposed the
self-executing part of the Full Faith and Credit Clause, in
substantially the language finally adopted.
See 3 Farrand, supra note 227, at 629.
n343 Sherman sat as a judge in
the Connecticut cases, supra note 340.
For his leading role at the federal convention and in
ratification debates, see Dennis J. Mahoney, Roger Sherman, in
4 Levy, supra note 179, at 1678.
n344 Ellsworth sat as a judge in
the Connecticut cases, supra note 340.
He was a leader at the federal convention and served on the
Committee of Detail. See
Richard E. Ellis, Oliver Ellsworth, in 2 Levy, supra note 179,
at 625. For his role in ratification, see 2 Elliot, supra note 179,
n345 Rutledge decided Executors
of Fowl v. Todd, 1 S.C.L. (1 Bay) 176 (1791), and served on the
committee that drafted the Full Faith and Credit Clause.
2 Farrand, supra note 227, at 448.
For his role in ratification, see 4 Elliot, supra note 179, at
argued each of the Pennsylvania cases described supra note 340. Dallas' Reports generally give no first name or initial for
lawyers. But Dallas does
give initials on occasion, presumably when there was more than one
lawyer with the same surname. See,
e.g., Cooper v. Coats, 1 Dall. 308, 309 (Phila. C.P. 1788) (argument
by S. Levy); Morgan v. Eckart, 1 Dall. 295, 296 (Phila. C.P. 1788)
(J.B. McKean for plaintiffs); Lewis v. Maris, 1 Dall. 278, 279 (Pa.
Ct. Err. & App. 1788) (W.M. Smith for appellants).
The lack of an initial for Ingersoll implies that there was
only one lawyer in Philadelphia by that name, so that the lawyer in
these cases must have been Jared Ingersoll, the delegate.
The delegate trained in London, was a great litigator and a
specialist in commercial cases. See
Horace Binney, The Leaders of the Old Bar of Philadelphia 81, 85, 99
(1859). Two of the
choice-of-law cases argued by "Ingersoll" were commercial
cases. The delegate was
raised in Connecticut and apparently had no relative of the same
generation in Philadelphia. See
id. at 77-84.
n347 Law sat as a judge in the
Connecticut cases, supra note 340.
For his role in ratification, see 2 Elliot, supra note 179, at
n348 McKean wrote the lead
opinions in the Pennsylvania Supreme Court cases, supra note 340. For his role in ratification, see 2 Elliot, supra note 179,
at 417-18, 529-42.
n349 Duane wrote a long opinion
in Rutgers v. Waddington (N.Y. Mayor's Ct. 1784), in Morris,
Cases, supra note 340. For
his role in ratification, see 2 Elliot, supra note 179, at 206,
327-29, 357-58, 360, 379-80, 411.
n350 9 Journals of the
Continental Congress, 1774-1789, at 885, 887 (Worthington Chauncey
Ford ed., 1907) (1777).
n351 Bryan filed a brief opinion
in Thompson v. Musser, 1 Dall. 458 (Pa. 1789). For his role opposing
ratification, see 2 Storing, Anti-Federalist, supra note 186, at 130,
135 nn.4-5; 2 Elliot, supra note 179, at 542-46.
n352 In a passage showing
similarities between law and equity, Blackstone said: "both
follow the law of the proper forum and . . . if a question came
before either, which was properly the object of a foreign municipal
law, they would both receive information what is the rule of the
country, and would both decide accordingly." 3 William
Blackstone, Commentaries on the Laws of England 436 (1768 (footnote
omitted), quoted in Thompson, 1 Dall. at 467 (Rush, J.,
seriatim); see also 2 Blackstone, supra, at 463-64 (interest governed
by law of the place where the contract is made).
n353 Henry Home, Principles of
Equity 345-74 (2d ed. 1767), cited in argument of counsel in Camp v.
Lockwood, 1 Dall. 393, 397-98 (Phila. C.P. 1788). Henry Home
eventually became Lord Kames.
n354 Ulrich Huber, De Conflictu
Legum Diversarum in Diversis Imperiis ["On the Conflict of
Diverse Laws in Diverse Governments"] (1707), cited in
Ingersoll's argument in Camp, 1 Dall. at 397-98. Huber is
reprinted in English and Latin in Ernest G. Lorenzen, Huber's
De Conflictu Legum, 13 Ill. L. Rev. 375, 401-18 (1919).
n355 See Somerset v. Stewart, 98
Eng. Rep., 499 (K.B. 1772); Pearne v. Lisle, 27 Eng. Rep. 47, 48 (Ch.
1749); Smith v. Brown, 91 Eng. Rep. 566 (Q.B. 1706).
n356 Joseph Story, Commentary on
the Conflict of Laws § 407
(7th ed. 1872) (collecting series of cases beginning in 1704 and
extending into the nineteenth century).
n357 See Theodore F.T.
Plucknett, A Concise History of the Common Law 249, 704-06 (5th ed.
n358 See, e.g., 2 James Kent,
Commentaries on American Law *455 (1827).
n359 Anonymous, 123 Eng. Rep.
789, 789 (K.B. 1611) ("And if at the common law one matter comes
in question upon a conveyance, or other instrument made beyond sea:
according to the course of the civil law, or other law of the nations
where it was made; the Judges ought to consult with the civilians or
others which are expert in the same law; and according to their
information, give judgment. . . ."); see Sack, supra note 334, at
372, 432 n.235.
n360 Sack, supra note 334, at
n361 Wey v. Rally, 87 Eng. Rep.
948, 948 (Q.B. 1705).
n362 Sack, supra note 334, at
n363 Currie, supra note 145, at
n364 See, e.g., Kay, supra note
47, at 587-88 ("local law is the normally applicable law in
conflicts cases, as in other cases, and . . . the burden of persuasion
is placed on the party wishing to displace local law"); Singer,
Facing, supra note 32, at 198-206; Singer, supra note 17, at 81-83,
n365 See Sedler, supra note 47,
at 638; Weinberg, supra note 33, at 54-55, 81.
n366 See Kramer, supra note 17,
n367 See, e.g., Sun Oil Co. v.
Wortman, 486 U.S. 717, 722-29 (1988) (forum state may characterize its
statute of limitations as procedural and apply it to claims governed
by substantive law of other states).
n368 Compare the similar case of
domiciliary choice-of-law rules that do not undermine the principle of
equal citizens, discussed supra note 225 and accompanying text.
n369 This consideration is
suggested in Weintraub, supra note 11, §
6.27, at 342-43; Robert A. Leflar, Conflicts Law: More on
Choice-Influencing Considerations, 54 Cal. L. Rev. 1584, 1587-88
(1966); Singer, supra note 17, at 6, 80.
For the argument that better law approaches are
unconstitutional because they violate a duty of neutrality toward
sister-states' conceptions of the good, see Terry S. Kogan, Toward a
Jurisprudence of Choice of Law: The Priority of Fairness over Comity,
62 N.Y.U. L. Rev. 651, 698 (1987).
n370 See Baxter, supra note 34,
at 7-8; Kramer, supra note 17, at 316.
n371 See Erie R.R. v. Tompkins,
304 U.S. 64, 78-80 (1938).
n372 This approach is suggested
in Conklin v. Horner, 157 N.W.2d 579, 586-87 (Wis. 1968) (rejecting
application of Illinois guest statute as "anachronistic"
vestige); Weintraub, supra note 11, §
6.6, at 287-90; id. § 6.32,
at 359-60; id. § 7.4B,
n373 This approach is suggested
in Paul A. Freund, Chief Justice Stone and the Conflict of Laws, 59
Harv. L. Rev. 1210, 1216 (1946).
n374 This approach is suggested
in Weinberg, supra note 270, at 623.
n375 304 U.S. 64, 79 (1938).
n376 Choice of pro-plaintiff law
is proposed in Willis L. M. Reese, Products Liability and Choice of
Law: The United States Proposals to the Hague Conference, 25 Vand. L.
Rev. 29, 30-38 (1972); Weintraub, supra note 11, §
6.4, at 284-85; Weinberg, supra note 270, at 599-600.
The pro-plaintiff proposals described by Professor Reese were
rejected for international cases by the Hague Conference.
See Reese, supra, at 38-39.
n377 See Weinberg, supra note
33, at 65-67 (arguing that forum law is better because plaintiff
selects forum for its favorable law, and pro-plaintiff law is better).
n378 See, e.g., Kilberg v.
Northeast Airlines, Inc., 172 N.E.2d 526, 527-29 (N.Y. 1961) (holding
that New York's public policy prevents application of Massachusetts
limitation on damages for wrongful death); Owen v. Owen, 444 N.W.2d
710, 712-13 (S.D. 1989) (rejecting sister state's guest statute); Paul
v. National Life, 352 S.E.2d 550, 556 (W. Va. 1986) (same); Weintraub,
supra note 11, § 3.6, at
n379 See Jackson, supra note 1,
at 27 ("It is hard to see how the faith and credit clause has any
practical meaning as to statutes if the Court should adhere to" a
public policy exception.); Simson, supra note 37, at 70 n.51 (public
policy exception violates Full Faith and Credit Clause because it
prevents uniform result). But
see Simson, supra note 151, at 279 (proposing limited public policy
n380 See Kramer, supra note 17,
at 316, 336.
n381 See id. at 334-36.
n382 See id. at 336.
n383 See id.
n384 See id. at 315-16, 335-36.
n385 See Singer, Facing, supra
note 32, at 209-10.
n386 For another game theory
model, see Simson, supra note 151, at 280 n.4.
Compare Brilmayer, supra note 6, at 145-89 (game theory model)
with id. at 191-230 (recognizing rights of litigants).
n387 See 17A Charles A. Wright
et al., Federal Practice & Procedure: Jurisdiction 2d § 4248, at 157-79 (2d ed. 1988).
n388 See id. at 168 n.33.
n389 See 19 id. §
4507, at 87-103.
n390 See Frederick Schauer,
Rules and the Rule of Law, 14 Harv. J.L. & Pub. Pol'y 645, 685-86
(1991) (noting that choice between rule and case-by-case determination
depends on empirical predictions of errors that will result from over-
and under-inclusiveness of rule compared to errors that decision
makers will make in case-by-case determinations).
n391 For a summary and
collection of sources, see 1 Storing, Anti-Federalist, supra note 186,
at 12, 81 n.31. See,
e.g., 2 id. at 166, 169 (Letter of Centinel, Nov. 30, 1787) ("It
is a solecism in politics for two co-ordinate sovereignties to exist
together, you must separate the sphere of their jurisdiction.").
The Letters of Centinel were written by Judge George Bryan and
his son Samuel Bryan, both of Philadelphia; the division of labor
between them remains uncertain. Id.
at 130, 135 nn.4-5.
n392 See, e.g., 1 id. at 34; 3
Elliot, supra note 179, at 95 ("the powers of the federal
government are enumerated; it can only operate in certain cases; it
has legislative powers on defined and limited objects, beyond which it
cannot extend its jurisdiction") (remarks of James Madison).
n393 See, e.g., The Federalist,
supra note 90, No. 32, at 197-201 (Alexander Hamilton).
n394 See Jensen, supra note 230,
n395 See U.S. Const. art. III,
§ 2, cl. 1; Charles
Warren, The Supreme Court and Sovereign States 31 (1924).
n396 See Cramton et al., supra
note 18, at xviii, 795, 827; Louise Weinberg, The Federal-State
Conflict of Laws: The "Actual Conflict" Cases, 70 Tex. L.
Rev. (1992) (forthcoming).
n397 Brilmayer, supra note 6, at
n398 U.S. Const. amend. XIV, §
n399 U.S. Const. art. IV, §
3, cl. 1.
n400 See, e.g., Act of April 18,
1818, ch. 67, § 2, 3
Stat. 428, 429, which begins: "And be it further enacted,
That the said state shall consist of all the territory included within
the following boundaries, to wit." The statute then sets out the
boundaries by metes and bounds, requires the state to ratify those
boundaries, and provides for concurrent jurisdiction with neighboring
states on the Wabash and Mississippi but not on the Ohio.
For ratification of these boundaries, see Ill. Const. of 1818,
preamble; Ill. Const. of 1848, art. I, §
1; Ill. Const. of 1870, art. I.
The boundaries were not repeated
in the Illinois Constitution of 1970, because it was thought that only
Congress could specify the state's boundaries, and because it was
thought impractical to include the accumulated specifications of
detail. 2 Records of Proceedings: Sixth Illinois Constitutional
Convention 1068-71 (1970) [hereinafter Illinois Convention] (Report of
Gen'l Gov't Comm. on Proposal No. 10); 6 id. at 573-77.
n401 See, e.g., the sources of
the western boundary of Tennessee in Cissna v. Tennessee, 246 U.S.
289, 294 (1918).
n402 The survey of state
constitutions is reported in 6 Illinois Convention, supra note 400, at
574 (Report of Gen'l Gov't Comm. on Proposal No. 10).
n403 See Act of Mar. 2, 1831,
ch. 86, § 3, 4 Stat.
479, 480 (providing for a commissioner appointed by the President and
a commissioner appointed by Illinois to survey the state's northern
n404 See, e.g., Illinois v.
Kentucky, 111 S. Ct. 1877 (1991); Illinois v. Missouri, 399 U.S. 146
n405 Rhode Island v.
Massachusetts, 37 U.S. (12 Pet.) 657, 733 (1838).
n406 For the claim that
boundaries do not matter, see Weintraub, supra note 11, §
9.4, at 574; Currie & Schreter, Equal Protection, supra
note 40, at 42-51; Sedler, supra note 47, at 642.
n407 Weinberg, supra note 270,
n408 For further argument in
support of this position, see Regan, supra note 27, at 1887-95.
n409 See Dane, supra note 29, at
1218-23; see also Brilmayer, supra note 6, at 173 (making same
argument with special reference to regulation of primary conduct).
n410 See, e.g., Kramer, supra
note 17, at 313 & n.113; Restatement (Second), supra note 15, §
6(2)(f) & comment (i).
n411 This answer is suggested in
Ely, supra note 178, at 711-12.
n412 See, e.g., the distinction
between "rules of the road" and "award or limitation of
damages" in Eischen v. Baumer, 557 N.E.2d 142, 144 (Ohio Ct. App.
n413 See Douglas Laycock, Modern
American Remedies: Cases and Materials 6-8 (1985).
n414 See Gottesman, supra note
17, at 45-46.
n415 The point is also made in
Brilmayer, supra note 6, at 78.
n416 Compare Lord Kames'
introduction to what is probably the first scholarly treatment of
choice of law written in English, arguing that societies shifted from
personal to territorial choice of law rules when territorial states
replaced nomadic tribes. Home,
supra note 353, at 345-46.
n417 See, e.g., Weintraub, supra
note 11, § 6.10, at 303;
Posnak, supra note 223, at 721.
n418 See Posnak, supra note 223,
at 697-98 (asserting that Florida retailer should not be surprised by
application of Alaska law).
n419 Weinberg, supra note 270,
n420 See Weintraub, supra note
11, § 6.5, at 285-87;
id. § 7.4D, at 391-93;
Kramer, supra note 17, at 336-38; see also Weinberg, supra note 270,
at 617, 622 (asserting that defendants' principal reasonable
expectation is that they expect to pay).
n421 Sun Oil Co. v. Wortman, 486
U.S. 717, 723 (1988).
n422 Id. at 727.
n423 See Posnak, supra note 223,
at 689-90 (complaining that most new territorialists have failed to
provide specific rules that can be attacked); Kramer, supra note 17,
at 279 (same).
n424 See Singer, supra note 17,
at 26-31 (arguing that territorial rules require analysis of interests
to choose the controlling territorial contacts).
n425 See, e.g., Veazey v.
Doremus, 510 A.2d 1187, 1190-91 (N.J. 1986) (collecting cases).
n426 Brilmayer, Interstate
Equality, supra note 19, at 412-13.
n427 See, e.g., CTS Corp. v.
Dynamics Corp., 481 U.S. 69, 89 (1987) (noting settled rule that
corporate voting rights are governed by state of incorporation);
McDermott Inc. v. Lewis, 531 A.2d 206, 214-19 (Del. 1987) (same).
n428 See, e.g., New York ex rel.
Cohn v. Graves, 300 U.S. 308 (1937) (holding that state can tax its
residents on income earned elsewhere); supra notes 131-143 and
accompanying text (arguing that each person can have the right to vote
and receive subsidized services in one and only one state).
n429 See, e.g., Eischen v.
Baumer, 557 N.E.2d 142, 144 (Ohio App. 1988) (refusing to apply
Indiana guest statute to Ohio relationship).
n430 Ely, supra note 22, at 217.
n431 Cramton et al., supra note
18, at 337; Twerski, Enlightened Territorialism, supra note 13, at
n432 But see American Standard
Ins. Co. v. Cleveland, 369 N.W.2d 168, 170-73 (Wis. App. 1985)
(applying Wisconsin law to such a case).
n433 The example is based on
Tooker v. Lopez, 249 N.E.2d 394 (N.Y. 1969), which ignored the
location of the relationship and applied the law of the common
domicile. For an analysis
of the case similar to mine, see Twerski, On Territoriality, supra
note 13, at 161-62.
n434 For further analysis, see
Twerski, On Territoriality, supra note 13, at 160-67.
n435 These criticisms of
domiciliary rules appear in Posnak, supra note 223, at 703-04.
n436 See Brilmayer, supra note
6, at 88-89 (arguing that interest analysis cannot deal with
corporations because they have multiple and artificial domiciles).
n437 789 F.2d 236 (3d Cir.
n438 See id. at 243.
n439 125 Mass. 374 (1878),
discussed supra text accompanying notes 146-154.
n440 See Brilmayer, supra note
6, at 216; Ely, supra note 22, at 192; Note, Products Liability and
the Choice of Law, 78 Harv. L. Rev. 1452, 1465-66 (1965).
n441 Lemmon v. People, 20 N.Y.
562, 608-09 (1860) (Denio, J., seriatim).
For similar reasoning in the eighteenth century, see Banks v.
Greenleaf, 2 F. Cas. 756, 757 (C.C.D. Va. 1799) (No. 959) ("[I]f
the citizens go abroad and submit to their laws, as temporary
subjects, they must be bound. . . .
[I]f a foreigner came into our country, and there enter a
contract, the laws of his nor any other foreign country can be
received to control, alter, or discharge it.").
n442 See, e.g., Currie, supra
note 145, at 235-36.
n443 See Conn v. Whitmore, 342
P.2d 871, 874 (Utah 1959); see also Scullin Steel Co. v. National Ry.
Utilization Corp., 676 F.2d 309 (8th Cir. 1982) (holding that Missouri
lacked jurisdiction over Pennsylvania defendant, where an agent of the
plaintiff went to Pennsylvania and defendant's only contacts with
Missouri were by phone and mail); cf. McGee v. International Life Ins.
Co., 355 U.S. 220, 223 (1957) (stating that California could assert
jurisdiction over party to "a contract which had substantial
connection with that state," not explicitly relying on fact that
defendant had assumed liability on California insurance policy without
any request or initiative by plaintiff).
n444 On the advantages of rules
in the choice-of-law context, see, e.g., William C. Powers, Formalism
and Nonformalism in Choice of Law Methodology, 52 Wash. L. Rev. 27,
28-57 (1976); Willis L.M. Reese, Choice of Law: Rules or Approach, 57
Cornell L. Rev. 315 (1972). For interest analysts' traditional
opposition to rules, and for their more recent conclusion that at
least some rules would be helpful, see the books and articles cited in
Kramer, supra note 17, at 320-21 nn.146-147.
n445 Cf. World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 295-99 (1980) (holding that Oklahoma
court lacked personal jurisdiction over seller on these facts).
n446 See McConnell, supra note
24, at 98-99 (arguing that "place of sale" rule would
discourage extreme liability rules and enhance ability of
manufacturers to respond to different states' product liabilities laws
by differential pricing).
n447 Cf. Singer, supra note 17,
at 45-47 (arguing that all laws are compromises, protecting the
interests of potential defendants as well as potential plaintiffs).
n448 But cf. Louise Weinberg's
sidewalk-clearing hypothetical, described supra text accompanying note
419. If I must obey
another state's more cautious rules for clearing snow, I suppose a
fortiori I must obey its more cautious speed limit.
The potential harm of disobedience is so much greater.
n449 480 N.E.2d 679 (N.Y. 1985).
n450 Cf. Singer, supra note 17,
at 94-101 (reaching same result from an interest analysis
n451 For a review of the
unfortunately named concept of depecage, see, e.g., Weintraub, supra
note 11, § § 3.4-3.4A,
n452 On characterization, see,
e.g., Cramton et al., supra note 18, at 70-94.
n453 Cavers, supra note 9, at
n454 U.S. Const. art. IV, §
1 (emphasis added).
n455 See supra notes 301-302 and
n456 See supra note 303 and
n457 See, e.g., Phillips
Petroleum Co. v. Shutts, 472 U.S. 797, 814-22 (1985).
n458 See supra notes 256-258 and
n459 5 U.S. (1 Cranch) 137
n460 28 U.S.C. §
1738 (1988); see supra notes 273-275 and accompanying text.
n461 See generally Henry J.
Friendly, In Praise of Erie -- And of the New Federal Common Law, 39
N.Y.U. L. Rev. 383, 405-22 (1964) (reviewing the development of
federal common law after 1938); Henry P. Monaghan, Foreword:
Constitutional Common Law, 89 Harv. L. Rev. 1, passim (1975) (arguing
that much of the detailed law implementing the Constitution is really
federal common law).
n462 See, e.g., Illinois v.
Kentucky, 111 S. Ct. 1877 (1991); Howard v. Ingersoll, 54 U.S. (13
How.) 381 (1851); Handly's Lessee v. Anthony, 18 U.S. (5 Wheat.) 374
n463 See, e.g., Oklahoma v. New
Mexico, 111 S. Ct. 2281 (1991); Texas v. New Mexico, 482 U.S. 124
(1987); Hinderlider v. La Plata River & Cherry Creek Ditch Co.,
304 U.S. 92, 110 (1938).
n464 See, e.g., Delaware v. New
York, No. 111 Orig., (pending in the Supreme Court); Western Union
Tel. Co. v. Pennsylvania, 368 U.S. 71 (1961). The analogy to these
interstate disputes is also noted in Friedrich K. Juenger,
Governmental Interests -- Real and Spurious -- in Multistate Disputes,
21 U.C. Davis L. Rev. 515, 529 (1988).
n465 See Rhode Island v.
Massachusetts, 37 U.S. (12 Pet.) 657, 749-50 (1838).
n466 Cissna v. Tennessee, 246
U.S. 289, 295 (1918).
n467 Textile Workers Union v.
Lincoln Mills of Am., 353 U.S. 448, 456-57 (1957).
n468 Compare Mitchum v. Foster,
407 U.S. 225, 231-43 (1972) (finding no statutory restriction on §
1983 suits to enjoin state court proceedings) with Younger v.
Harris, 401 U.S. 37, 43-54 (1971) (restricting such suits on the basis
of judge-made rules of equity).
n469 See, e.g., Memphis
Community Sch. Dist. v. Stachura, 477 U.S. 299, 304-13 (1986); Smith
v. Wade, 461 U.S. 30 (1983); Carey v. Piphus, 435 U.S. 247, 253-67
n470 See, e.g., Anderson v.
Creighton, 483 U.S. 635 (1987); Stump v. Sparkman, 435 U.S. 349,
355-64 (1978); see also Harlow v. Fitzgerald, 457 U.S. 800, 806-19
(1982) (similar rules created for constitutional claims against
n471 See, e.g., Brown v. Board
of Educ., 349 U.S. 294 (1955); Bolling v. Sharpe, 347 U.S. 497, 500
n472 See, e.g., First English
Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304,
314-22 (1987); Carlson v. Green, 446 U.S. 14, 17-18, 23-25 (1980);
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
n473 See, e.g., Edwards v.
Arizona, 451 U.S. 477, 478-80, 487 (1981); Mapp v. Ohio, 367 U.S. 643,
655-57 (1961); Silverthorne Lumber Co. v. United States, 251 U.S. 385
n474 See, e.g., Harlow,
457 U.S. 800; Carlson, 446 U.S. 14; Bivens, 403 U.S.
388; Bolling, 347 U.S. 497; Silverthorne Lumber, 251
U.S. 385; see also Brown, 349 U.S. 294 (ordering remedies in Bolling
without distinction from suits against state defendants).
n475 See, e.g., Osborne v. Bank
of the United States, 22 U.S. (9 Wheat.) 738 (1824). Section 1983 was
originally enacted as the Ku Klux Act of April 20, 1871, ch. 22, §
1, 17 Stat. 13.
n476 See Bruce Ackerman, Beyond Carolene
Products, 98 Harv. L. Rev. 713 (1985) (arguing that dispersed and
anonymous minorities lack the ability to organize as an interest group
or voting block, an ability that gives discrete and insular minorities
power disproportionate to their numbers).
n477 Gottesman, supra note 17,
n478 See United States v.
Carolene Prods., 304 U.S. 144, 153 n.4 (1938).
n479 See Cavers, supra note 196,
at 737-38 (arguing that historical "record of the federal
judiciary as umpires in cases of conflicting state law was far from
n480 See also Monaghan, supra
note 461, at 1-32 (arguing that Congress has general authority to
modify common-law implementation of constitutional rules).
Monaghan's argument is unnecessary here, because the Effects
Clause explicitly gives Congress that authority with respect to Full
Faith and Credit.
n481 Cf. Benjamin N. Cardozo,
The Paradoxes of Legal Science 67 (1928) (arguing that in choice of
law, "the finality of the rule is in itself a jural end").
n482 For the argument that the
Supreme Court is too busy to handle choice of law, see Cavers, supra
note 196, at 738-39 (the "Court is confronted by demands upon its
limited time and attention that are far too important to be set aside
for the perplexing choice-of-law problems . . ."); Gottesman,
supra note 17, at 20. Gottesman
believes that the federal courts can enforce uniform interpretation of
determinate statutory choice-of-law rules.
See id. at 37-41. I
believe they could also manage determinate judge-made rules.
n483 See supra notes 178-181 and accompanying text.