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U.S. Conflict-of-Laws Doctrine and Forum Shopping, International and Domestic

(Revisited) RALPH U. WHITTEN†

SUMMARY

I. INTRODUCTION.......................................................................................................... 559

II. PROFESSOR JUENGER’S ASSESSMENT OF THE EFFECT OF CONFLICTS DOCTRINE ON FORUM SHOPPING AND WHAT SUBSEQUENT RESEARCH REVEALS ABOUT HIS CONCLUSIONS ......................................................................... 561 A. Professor Juenger’s Conclusions ...................................................................... 561 B. The Subsequent Research .................................................................................. 562 C. International Forum Shopping.......................................................................... 567 D. Reforms to Eliminate Forum Shopping ............................................................. 568

III. THE LEX FORI APPROACH AND INTERSTATE AND INTERNATIONAL FORUM SHOPPING .................................................................................................................. 569 A. The Nature and Extent of Lex Fori Systems in the United States ...................... 569 B. Kentucky ............................................................................................................ 570 C. Nevada............................................................................................................... 571 D. Michigan ........................................................................................................... 573 E. Evaluation of the Existing Lex Fori Systems ..................................................... 574

IV. A NATIONAL “DEFAULT” LEX FORI RULE ................................................................. 580

V. CONCLUSION ............................................................................................................. 586

I. INTRODUCTION

It is a great honor to participate in a conflict-of-laws symposium dedicated to the memory of Friedrich Juenger. During his long and illustrious career, Professor Juenger had occasion to comment on every imaginable issue in conflicts and comparative law. His commentary is rightly considered essential reading for students and scholars of both subjects. His work has attained classical status in the fields in which he labored, and it will surely retain that status in perpetuity. Those of us who have had the opportunity not only to read his rich contributions to the conflicts and comparative law literature, but also to hear him speak on the many subjects of which he was a master, are truly fortunate.

Professor Juenger’s extensive contributions to conflicts-of-law literature have made my task in this symposium considerably easier. I have been asked to address the effect of

† Professor of Law, Creighton University; B.B.A. 1966, University of Texas; J.D. 1969, University of Texas

School of Law; L.L.M. 1972, Harvard University.

560 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 37:559

U.S. conflict-of-laws doctrine on international forum shopping. In 1989, Professor Juenger wrote an article for the Tulane Law Review entitled Forum Shopping, Domestic and International.1 In that article, he surveyed the elements that contribute to international and domestic forum shopping, including conflict-of-laws doctrine, and astutely evaluated the relative effect of each element. The judgment I reach in this article is that his assessment of the effect of conflict-of-laws doctrine on both domestic and international forum shopping was correct in 1989 and remains correct today. Indeed, the information accumulated since Professor Juenger wrote his article tends to confirm the conclusions that he reached. In a nutshell, the conclusion of his article, insofar as the contribution of conflict-of-laws doctrine to forum shopping is concerned, is that choice-of-law doctrine contributes somewhat to the litigants’ selection of the location of suit, but that it is more often subordinated to other factors that influence the choice of forum.2 Since Professor Juenger wrote his 1989 article, we have accumulated additional empirical data on the effect of choice-of-law doctrine on forum shopping that supports his conclusion.3 In addition, a significant scholarly consensus agrees that conflict-of-laws doctrine is not the most important factor in forum shopping, especially in the context of domestic litigation.4

Although Professor Juenger’s conclusions applied to both domestic and international forum shopping, I will argue that modern U.S. conflict-of-laws doctrine offers somewhat greater incentives to forum shop for U.S. courts over foreign courts than it does to shop between different U.S. courts. Properly understood, I believe that the empirical work done since Professor Juenger’s article was published also tends to support this conclusion. Even so, however, it is unclear to what extent international forum shopping is intensified by U.S. conflict-of-laws systems, as opposed to the other factors that make U.S. courts attractive to foreign litigants, because no empirical studies have been done directly on the question of international forum shopping.5

Both the empirical evidence and the existing scholarly consensus developed since Professor Juenger’s article indicate that there is a strong tendency under all modern conflicts systems to apply forum law. Therefore, it is also interesting to examine whether forum shopping would be affected if all U.S. states shifted to a lex fori system for determining the applicable law. In effect, a state applying a lex fori system abandons a conflict-of-laws approach to the determination of the applicable law in multistate and multinational cases and simply applies its own law whenever it is constitutional for it to do so.6 An examination of the lex fori systems existing in the United States will, I believe, demonstrate that adoption of a lex fori approach would not appreciably affect forum shopping at the interstate or international level. To the extent that conflict-of-laws methodology is designed to eliminate forum shopping, therefore, a reform of U.S. conflicts law that would result in all states applying their own law to multistate and multinational disputes would not exacerbate existing forum-shopping woes. Moreover, this reform might offer additional advantages in the form of greater honesty in judicial opinions and elimination of the transaction costs of administering complex modern conflicts systems. However, it is also true that universal, or

1. Friedrich K. Juenger, Forum Shopping, Domestic and International, 63 TUL. L. REV. 553 (1989)

[hereinafter Juenger, Forum Shopping]. 2. See infra Section II.A and text accompanying notes 7–16 (discussing Juenger’s conclusions). 3. See infra Section II.B and text accompanying notes 17–41 (discussing empirical work done after

Juenger’s article and the reasons it supports his conclusions). 4. See infra Section II.B and text accompanying notes 42–43 (discussing the consensus). 5. See infra Section II.C and text accompanying notes 46, 50 (discussing the different incentives bearing on

domestic and international forum shopping). 6. See infra Section III.A–D and text accompanying notes 53–88 (discussing the lex fori systems in the

United States).

2002] U.S. CONFLICT-OF-LAWS DOCTRINE AND FORUM SHOPPING 561

even extensive, adoption of lex fori systems by the states is unlikely in present circumstances.

A final question is whether national legislation on conflict of laws and related matters can alleviate the adverse effects of interstate and international forum shopping. An examination of the possible ways in which forum shopping might be addressed at the federal level will show that national legislation could diminish forum shopping. Indeed, national legislation offers the only realistic hope of significantly diminishing forum-shopping incentives. The prospect for national legislation, however, is dim for precisely the same reasons that conflict-of-laws doctrine is in disarray in the United States today: the policy choices about which law should control multistate and multinational transactions are both difficult and controversial, making effective legislation politically improbable. Regardless, it may be possible for national legislation to address forum shopping and related matters in a piecemeal, evolutionary fashion. Under this approach, it is interesting to inquire whether Congress would have the power to mandate—or at least encourage—adoption of lex fori systems in the states. These systems could act as default systems that would operate within the gaps left by selective adoption of national substantive rules, national conflict-of-laws rules, national forum restriction rules, and national judgment enforcing rules in multistate and multinational cases.

Section II of this article will explore Professor Juenger’s assessment of the effect of conflict-of-laws doctrine on domestic and international forum shopping. In addition to describing Professor Juenger’s view on the relative contribution of conflicts doctrine and other elements of our litigation system to forum shopping, Section II will examine how his judgments have withstood the test of time, including how empirical investigations of U.S. conflicts law that were published after Professor Juenger wrote his 1989 article have affected his conclusions. Section III will then examine whether the adoption of a lex fori approach to determining the applicable law will affect forum-shopping incentives or offer other benefits in comparison to existing choice-of-law systems. Several U.S. states have adopted a partial lex fori approach to the determination of the applicable law in multistate cases, and these states will provide the backdrop by which to examine the lex fori approach in general. Section IV will examine whether national legislation would represent a solution to forum shopping as well as other problems in interstate and international litigation conducted in the United States. Section V will conclude with observations on the prospects for improvement in the conflict-of-laws enterprise in the United States.

II. PROFESSOR JUENGER’S ASSESSMENT OF THE EFFECT OF CONFLICTS DOCTRINE ON FORUM SHOPPING AND WHAT SUBSEQUENT RESEARCH

REVEALS ABOUT HIS CONCLUSIONS

A. Professor Juenger’s Conclusions

One central point in Professor Juenger’s 1989 article is that we lack empirical knowledge about the weight that litigants give to any of the numerous incentives to forum shop in the United States.7 Although his article did not supply the missing empirical work on forum shopping, it did assert that a number of features of our litigation system contributed to the ability of litigants to choose a forum in order to obtain a favorable outcome on the merits. He observed that, in addition to choice-of-law doctrine, principles

7. Juenger states: “I am not aware of any American in-depth study, empirical or otherwise, that focuses on [forum shopping].” Juenger, Forum Shopping, supra note 1, at 553–54.


of personal jurisdiction,8 rules governing judgment recognition,9 and the availability of sympathetic juries10 are features of the U.S. litigation system that encourage interstate forum shopping.11 Additionally, in international litigation, plaintiffs prefer U.S. courts because of the legality of contingency fees in the United States12 and the broader discovery available under U.S. procedural rules modeled after the Federal Rules of Civil Procedure.13 Nor are forum-shopping mechanisms limited to plaintiffs. As Professor Juenger observed, the “inhospitable attitude toward aliens”14 embodied in the U.S. Supreme Court’s forum non conveniens jurisprudence has given defendants in products liability and other actions a method of engaging in “reverse forum shopping” in the international context.15 Professor Juenger’s conclusion was that, while favorable conflict-of-laws rules—and the correspondingly favorable substantive law that follows them—sometimes influence both domestic and international litigants to forum shop for particular U.S. courts, other factors dominate the selection of forum in most cases.16

B. The Subsequent Research

Since Professor Juenger wrote, limited empirical studies of U.S. conflicts law have been performed. These studies have indirectly confirmed Professor Juenger’s judgment about the contribution of conflict-of-laws doctrine to forum shopping, at least in the domestic context. In 1992, Professor (now Dean) Patrick Borchers studied the operation of U.S. conflict-of-laws systems in tort cases.17 His study concluded that the “vested rights”18

8. Id. at 557–58. 9. Id. at 558. 10. See id. at 560. 11. See id. at 558–59. 12. See id. at 560. 13. Juenger, Forum Shopping, supra note 1, at 56–62. Professor Juenger also observes that the ability to

frame a tort action, such as one arising out of an airline disaster, as a products liability action in the United States has influenced forum shopping for U.S. courts in some cases because it has enabled plaintiffs to avoid damage limits under the Warsaw Convention. See id. at 560–62. In addition, Professor Weintraub has observed that “[o]f all the attractions of a United States forum, the most important is . . . trial by jury.” Russell J. Weintraub, International Litigation and Forum Non Conveniens, 29 TEX. INT’L L.J. 321, 323 (1994) [hereinafter Weintraub, International Litigation].

14. Juenger, Forum Shopping, supra note 1, at 563. 15. See id. at 563–64 (discussing the Court’s decision in Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981),

and lower federal court decisions dismissing actions arising out of the Bophal disaster); see also David W. Robertson, The Federal Doctrine of Forum Non Conveniens: “An Object Lesson in Uncontrolled Discretion”, 29 TEX. INT’L L.J. 353 (1994); Linda J. Silberman, Developments in Jurisdiction and Forum Non Conveniens in International Litigation: Thoughts on Reform and a Proposal for a Uniform Standard, 28 TEX. INT’L L.J. 501 (1993); Weintraub, International Litigation, supra note 13; Russell J. Weintraub, Response to Professor Robertson, 29 TEX. INT’L L.J. 381 (1994). Of course, not all American courts agree with the approach in Piper Aircraft. See, e.g., Ison v. E.I. DuPont De Nemours & Co., 729 A.2d 832, 835 (Del. 1999) (“The fact that plaintiffs are foreign nationals does not deprive them of the presumption that their choice of forum should be respected . . . .”). A tool that is less often but nevertheless sometimes effective is the injunction against foreign litigation. For a discussion of this device, see LUTHER L. MCDOUGAL III ET AL., AMERICAN CONFLICTS LAW § 49 (5th ed. 2001); LARRY L. TEPLY & RALPH U. WHITTEN, CIVIL PROCEDURE 369–72 (2d ed. 2000); Andreas F. Lowenfeld, Forum Shopping, Antisuit Injunctions, Negative Declarations, and Related Tools of International Litigation, 91 AM. J. INT’L L. 314 (1997).

16. See Juenger, Forum Shopping, supra note 1, at 572–74. 17. See Patrick J. Borchers, The Choice-of-Law Revolution: An Empirical Study, 49 WASH. & LEE L. REV.

357 (1992) [hereinafter Borchers, Empirical Study]; see also Patrick J. Borchers, Empiricism and Theory in Conflicts Law, 75 IND. L.J. 509 (2000) (arguing that empiricism must be seen as part of any theoretical project to evaluate conflicts law); William M. Richman & William L. Reynolds, Prologomenon to an Empirical Restatement of Conflicts, 75 IND. L.J. 417, 426–35 (2000) (discussing inter alia the new empirical scholarship and its implications for a possible Restatement (Third) of Conflicts of Law).


approach of the First Restatement was the “most evenhanded” of the U.S. conflict-of-laws approaches in that it did not favor the selection of “forum law, pro-recovery rules or local parties.”19 With regard to modern conflicts systems,20 Dean Borchers concluded that, “the new approaches are not, by and large, distinguishable from each other.”21 Although the modern systems tend to favor the application of forum law,22 Dean Borchers also found that they all tended to favor the application of the law that produced recovery and benefited local parties.23 Dean Borchers concluded:

[O]ne thing is clear: . . . Courts do not take the new approaches seriously. Because all of the competitors to the First Restatement start from different analytical premises, if courts were faithful to their tenets they would inevitably generate different result patterns. Yet in practice the outcomes are largely indistinguishable. [T]he reason . . . that all of the modern approaches perform nearly identically in practice is that none of them is much of a check on judicial discretion. No other hypothesis can account for the similarity in result patterns. If the new theories actually curtailed judicial discretion, their differing analytical foundations ought to produce quite different result patterns.24

Dean Borchers disapproved of the failure of judges applying modern conflicts systems to give honest reasons for their decisions because of the “discernable negative effects of the judicial dishonesty” such as the difficulty that dishonesty causes for lawyers trying to advise their clients.25 The alternatives are to “retreat to a regime of reasonably hard and fast rules such as the First Restatement” or “remain in the shadowy netherworld in which most of U.S. conflicts now dwells,” in which “substantive preferences are always just out of sight.”26

Dean Borchers’s analysis confirmed another empirical study by Professor Michael Solimine.27 Like Dean Borchers, Professor Solimine’s research concluded that tort “plaintiffs in lex loci [First Restatement system] courts fared worse than their counterparts in non-lex loci [modern conflicts] tribunals.”28 In addition, Professor Solimine found that courts that followed modern conflicts systems applied forum law in a substantially higher percentage of cases than courts that follow the First Restatement.29 Professor Solimine concluded that “there is theoretical and empirical support for the proposition that modern

18. Borchers, Empirical Study, supra note 17, at 357. For a discussion of the First Restatement approach,

including the conventional criticisms of the approach, see Ralph U. Whitten, Curing the Deficiencies of the Conflicts Revolution: A Proposal for National Legislation on Choice of Law, Jurisdiction, and Judgments, 37 WILLAMETTE L. REV. 259, 267–70 (2001) [hereinafter Whitten, Curing Conflicts Deficiencies].

19. Borchers, Empirical Study, supra note 17, at 377. 20. For a summary and critique of modern conflicts systems, see Whitten, Curing Conflicts Deficiencies,

supra note 18, at 270–78. 21. Borchers, Empirical Study, supra note 17, at 377. 22. See id. at 374, 377–78. 23. Id. at 378. 24. Id. at 379–80. 25. Id. at 382–83. 26. Id. at 383. Borchers expresses a preference for admitting that results “have been and are the guiding

light in multistate tort cases.” Id. 27. Borchers, Empirical Study, supra note 17, at 381–84; Michael E. Solimine, An Economic and Empirical

Analysis of Choice of Law, 24 GA. L. REV. 49 (1989). 28. Solimine, supra note 27, at 86. 29. Id. at 87.


choice of law theories inevitably tend to hold against defendants in general and out-of-state defendants in particular.”30

Although somewhat counterintuitive, I believe that Professor Solomine’s and Dean Borchers’s empirical studies indirectly support Professor Juenger’s judgment that U.S. conflicts law is not the dominant incentive in domestic forum shopping. The malleable nature of modern conflicts doctrine often makes it impractical for plaintiffs to base decisions about where to litigate on a determination of what law a court will select to govern the action. Although one may be assured that domestic plaintiffs will not choose a forum in which the conflicts system would select an applicable substantive law that would clearly preclude recovery, the fluid nature of modern U.S. conflicts systems usually do not allow litigants to predict either a favorable or unfavorable decision with certainty. However, the strong pro-recovery bias of courts that apply one of the modern U.S. conflicts doctrines gives plaintiffs a degree of security that conflicts decisions in those states will not thwart recovery. The result is to make non-choice-of-law factors, such as sympathetic juries, more important in a plaintiff’s selection of a forum than choice-of-law doctrine, at least when the plaintiff is able to choose a forum from among multiple modern systems or when the plaintiff has a choice between a modern system and a First Restatement system. Thus, by failing to provide a context in which selection of the applicable law is clear, uniform, and neutral as between plaintiffs and defendants, modern U.S. conflicts doctrine encourages plaintiffs to practice forum shopping on the basis of other factors, the operation of which they can predict with greater certainty. When plaintiffs see conflicts doctrine existing in many states that is not clearly contrary to their substantive interests, that they detect is malleable, and that tends generally to be pro-recovery, they naturally tend to select from among the states with known non-conflicts, pro-recovery tendencies.31 Because modern pro-forum, pro-recovery conflicts systems substantially outnumber First Restatement systems,32 plaintiffs have a large number of favorable fora from which to choose in terms of choice-of-law doctrine and will naturally choose among these favorable fora on the basis of non-choice-of-law factors that will produce a recovery.

Although Dean Borchers’s and Professor Solimine’s studies are the only existing empirical works that directly investigate the operation of U.S. conflicts doctrine, empirical work in another area also supports Professor Juenger’s conclusions about the influence of conflicts doctrine on domestic forum shopping. In 1995, Professors Kevin Clermont and Theodore Eisenberg studied transfer of venue in federal courts “[f]or the convenience of parties and witnesses, in the interest of justice” under 28 U.S.C. Section 1404(a).33 The Clermont-Eisenberg study found that when cases were transferred from one federal court to another under Section 1404(a), the plaintiffs’ rate of winning dropped from fifty-eight

30. Id. at 89. Professor Solimine suggested that the pro-recovery nature of modern conflicts systems might

be the result of courts using conflicts doctrine to achieve the goal of “the pro-recovery nature of much of modern tort law.” Id.

31. This suggests that another useful empirical inquiry might be into plaintiff forum-shopping between modern conflicts jurisdictions and First Restatement jurisdictions. Based on Professor Solimine’s and Dean Borchers’s studies, one would expect conflicts doctrine to make a more important difference in the plaintiff’s choice of a forum when a First Restatement jurisdiction would select an applicable law that would preclude recovery and a modern conflicts jurisdiction is available as an alternative forum. Under such circumstances, one might expect litigants to select the modern conflicts jurisdiction, even if it is not clear how it would decide the conflicts question.

32. See Symeon C. Symeonides, Choice of Law in the American Courts in 2000: As the Century Turns, 49 AM. J. COMP. L. 1, 13 (2001) (listing thirteen states that use the traditional system in torts cases, contract cases, or both; three states that use a lex fori system in torts but a modern system in contracts cases; and the remaining states that use one of the modern conflicts systems).

33. Kevin M. Clermont & Theodore Eisenberg, Exorcising the Evil of Forum Shopping, 80 CORNELL L. REV. 1507, 1509 n.4 (1995).


percent to twenty-nine percent.34 This effect remained constant across substantively different lines of cases.35 Professors Clermont and Eisenberg concluded that plaintiffs are forum shopping in the Section 1404(a) cases,36 but that “courts are transferring cases to more just courts, so that the decrease in the [plaintiffs’] win rate reflects the fact that courts are stripping plaintiffs of unjust forum advantages.”37 They state:

[T]he plaintiff initially chooses the forum by filing suit. If the choice is too favorable to tolerate, the defendant moves for transfer. A relatively objective judge then chooses the forum, ordering transfer if it is in the interest of justice. The court considers many factors, with matters of convenience dominating; the balance must tilt decidedly toward transfer in order to overcome . . . the plaintiff’s choice of forum. So, while the court will not transfer merely to shift the inconvenience from the defendant to the plaintiff, the court will transfer when the balance of inconveniences is really lopsided. If transfer occurs, the plaintiff’s chance of winning declines through a variety of changed circumstances, such as a possibly less favorable set of local biases in the new forum. The dominant influence, however, is probably the shifted balance of inconveniences. Upon transfer, the plaintiff’s cost of litigating will rise, while the defendant’s cost will fall; the quantity of litigation “units” that the plaintiff will purchase relative to the defendant will fall commensurately; and so the win rate will decline.38

The enhanced success rate for defendants in Section 1404(a) transfer cases found by Professors Clermont and Eisenberg cannot be a byproduct of different conflict-of-laws doctrines operating in the transferor and transferee forums because the Supreme Court has held that the applicable law must remain the same before and after transfer under Section 1404(a). In Van Dusen v. Barrack, the Court held that, after a transfer granted on the

34. Id. at 1507. 35. Id. 36. Id. at 1507, 1514. 37. Id. at 1507. 38. Id. at 1515. Historical investigations of American litigation also tend to confirm that factors other than

the law applicable to cases influence forum-shopping decisions. For example, Professor Purcell has examined the history of federal diversity litigation in the late nineteenth and early twentieth centuries. One of the most important factors leading corporations to remove cases to federal court was the geographical burdens that removal placed on plaintiffs. In many cases, plaintiffs filed suit in state courts near their homes and the corporate defendants they sued removed the cases to federal courts, which were far fewer in number and tended to be located in urban areas. This caused greater inconvenience and expense to the plaintiffs, with a corresponding tendency to encourage settlements on terms favorable to the defendants. See EDWARD A. PURCELL, JR., LITIGATION AND INEQUALITY: FEDERAL DIVERSITY LITIGATION IN INDUSTRIAL AMERICA, 1870–1958, at 52 (1992). Other structural and procedural characteristics also favored corporate interests in diversity litigation. See id. at 52–58. During this same period, federal courts applied “general” law to many cases, which tended also to favor corporate interests. See id. at 59–86. However, the influence of this general “federal common law” varied by time and subject-matter and was “only one of several factors that contributed to the same result. For, throughout those years, the burdens of distance, delay, and procedural complexity also fell heavily on large numbers of plaintiffs.” Id. at 263–64; see also EDWARD A. PURCELL, JR., BRANDEIS AND THE PROGRESSIVE CONSTITUTION: ERIE, THE JUDICIAL POWER, AND THE POLITICS OF THE FEDERAL COURTS IN TWENTIETH-CENTURY AMERICA 149–53, 182–85 (2000) (discussing interstate forum shopping and the attempt by Justice Brandeis to develop constitutional limitations on choice of law in order to retard forum shopping). One other recent scholarly study may offer a fruitful line of future inquiry into the matters discussed in the text. Professors Hoffman and Rowley recently studied the operation of the doctrine of forum non conveniens in federal statutory cases and found substantial support in the case law for refusal to dismiss on forum non conveniens grounds when an initial choice-of-law analysis determined that federal statutory law would be applicable to the case. See Lonny Sheinkopf Hoffman & Keith Rowley, Forum Non Conveniens in Federal Statutory Cases, 49 EMORY L.J. 1137 (2000). This may reflect the same kind of pro-forum law bias discussed earlier in the text. However, in the absence of further study to determine whether the federal statutory law was pro-recovery or not, the research cannot cast significant additional light on the proposition being examined here.


defendant’s motion under Section 1404(a), the transferee district court must apply the same substantive law that would have been applied by the transferor court.39 In Ferens v. John Deere Co., the Court held that the Van Dusen rule also applied after transfers under Section 1404(a) on the plaintiff’s motion.40 Ferens also made clear in dicta that the Van Dusen rule would be applied in transfers under Section 1404(a) when: (1) both plaintiff and defendant move for transfer; (2) a district court grants a transfer on its own motion; (3) the plaintiff moves for transfer after the defendant removes an action from state to federal court; (4) only one of several plaintiffs moves for transfer; or (5) through no fault of the plaintiff, circumstances change, making a once desirable forum inconvenient.41 Thus, while choice-of-law doctrine might conceivably influence the plaintiff to file suit in the initial forum, the altered win rate after transfer cannot be explained by an altered choice of law in the transferee forum.

Moreover, the combination of the Clermont-Eisenberg results and those of the Borchers-Solimine studies indicate that the factors influencing choice of forum have less to do with choice-of-law doctrine than with other litigation factors. Indeed, the substantially altered plaintiffs’ win rate after transfer found by Clermont and Eisenberg suggests that non-choice-of-law factors bear quite heavily on whether plaintiffs win or lose in the new forum. This, in turn, makes it less likely that plaintiffs will select the place of suit based on the choice of law if they have a choice of forums in which the choice-of-law doctrine is not clearly against them. Unless one assumes that litigants and counsel are unable to detect the factors that bear most heavily on whether they win or lose an action, which does not seem likely, the available empirical evidence is compelling that choice-of-law doctrine is not, in the majority of cases, the most important factor in domestic forum selection.

Beyond the limited empirical evidence discussed above, a number of commentators have observed a pronounced tendency by courts that employ modern conflict-of-laws systems to select forum law.42 This tendency is logical because modern conflicts systems all tend to employ the forum state’s interests as one factor in the choice-of-law decision, though it is universally employed as a non-exclusive factor.43 In addition, in some substantive areas, the laws of the several states may be identical or quite similar.44 If this is so, a plaintiff may be confronted with alternative forums that have laws favorable to him and that he feels confident (based on the modern conflicts tendencies described above) will apply their own law to the case. Under these circumstances, it will be natural for the plaintiff to select the location of suit based on criteria other than the alternative states’ choice-of-law doctrines, eliminating from the range of acceptable fora only those places that he knows with certainty would apply unfavorable law to his claim.45

39. Van Dusen v. Barrack, 376 U.S. 612 (1964). 40. Ferens v. John Deere Co., 494 U.S. 516 (1990). 41. See id. at 530–31. 42. See, e.g., Anthony L. Ryan, Principles of Forum Selection, 103 W. VA. L. REV. 167 (2000). “One

feature of many modern approaches to the conflict of laws is a marked tendency to apply the law of the forum.” Id. at 192; Louise Weinberg, Choice of Law and Minimal Scrutiny, 49 U. CHI. L. REV. 440, 467 (1982) (arguing that the tendency of new approaches to choice of law is the application of forum law). In fact, this widely-observed tendency is actually confirmed by the empirical evidence. See Solimine, supra note 27, at 87.

43. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6(2)(b) (1971) (stating the relevant policies of the forum); Whitten, Curing Conflicts Deficiencies, supra note 18, at 270–75 (discussing the Second Restatement’s most-significant-contacts analysis and governmental-interest analysis); Ralph U. Whitten, Improving the “Better Law” System: Some Impudent Suggestions for Reordering and Reformulating Leflar’s Choice-Influencing Considerations, 52 ARK. L. REV. 177, 184–206 (1999) (discussing the forum’s interest factor in Professor Leflar’s choice-influencing considerations) [hereinafter Whitten, Better Law System].

44. See Solimine, supra note 27, at 89. 45. Indeed, Professor Solimine has suggested that courts employing modern conflicts theory in torts cases

may simply be implementing the policies supporting modern substantive tort law: “Perhaps driven by the pro-recovery nature of much of modern tort law, courts seem to be inclined to utilize modern choice-of-law doctrine to


C. International Forum Shopping

Viewed as a whole, the scholarly commentary—both empirical and non-empirical—supports Professor Juenger’s judgment that choice-of-law doctrine may contribute somewhat to forum shopping but that it is not the dominant factor bearing on the location of suit in domestic cases.46 However, there is reason to believe that U.S. conflicts doctrine may contribute more to international forum shopping than it does to domestic forum shopping. If the conclusions drawn above based on the empirical and non-empirical literature are correct, then conflict-of-laws doctrine is subordinated to other forum-selection factors in domestic cases because plaintiffs often have a wide choice of fora within the United States in which they can obtain personal jurisdiction over the defendant and obtain the application of pro-recovery substantive law. The same notion is probably not as often true for foreign plaintiffs who must choose between a court in the United States and a court in a foreign nation. A foreign nation’s courts are often more likely to select and apply a substantive law of liability or remedies that is either anti-recovery or that would allow a lower recovery compared to U.S. law, while, statistically speaking, the plaintiff may have a choice of a U.S. court (perhaps multiple U.S. courts) that will apply pro-recovery rules.

Although no empirical studies exist that examine the reasons why foreign nationals choose U.S. courts over foreign courts in cases arising out of foreign transactions, the anecdotal evidence is strong that the conclusions drawn in the preceding paragraph are correct. One example given by Professor Juenger himself illustrates the point nicely: his discussion of In re Paris Air Crash of March 3, 1974, a case that involved the crash of a Turkish airliner in France and an action in California against the California manufacturers of the aircraft.47 Professor Juenger argued that choice of a U.S. defendant was designed to avoid the damage limits of the Warsaw Convention,48 an international treaty that places limits on liability and available fora under certain circumstances.49 Nevertheless, the attorneys for the plaintiffs were otherwise unconcerned about the conflict-of-laws doctrine that a California court would apply.

The Paris Air Crash case raised a number of potential choice-of-law questions, but they did not overly concern the attorneys who represented the victims’ relatives. Their efforts were directed primarily to assuring that litigation would proceed in a suitable forum, and most of counsels’ time and ingenuity was spent on procedural stratagems. The plaintiffs’ lawyers were acutely aware of the need to avoid application of the Warsaw Convention. By proceeding against the California manufacturers of the airplane and component parts on a products liability theory, they not only circumvented the monetary limitation on recovery

achieve the goal of the substantive law . . . .” Id. If true, this would also tend to produce application of the law of the forum in cases in which the forum possesses a modern “pro-recovery” tort rule.

46. See Ryan, supra note 42, at 200 (“The choice of favorable substantive law is the most dramatic prize for the successful forum-shopper, but there are also many important procedural distinctions among courts.”); Note, Forum Shopping Reconsidered, 103 HARV. L. REV. 1677, 1678 (1990) (listing numerous considerations that may motivate forum shopping including, but not limited to, differing conflict-of-laws rules). But see Mary Garvey Algero, In Defense of Forum Shopping: A Realistic Look at Selecting a Venue, 78 NEB. L. REV. 79, 88 (1999) (“A review of reported cases in which forum shopping has been discussed reveals that the most common motive for forum shopping is selection of the law to be applied to the case.”).

47. In re Paris Air Crash of March 3, 1974, 399 F. Supp. 732 (C.D. Cal. 1975). 48. Convention for the Unification of Certain Rules Relating to International Transportation by Air, opened

for signature Oct. 12, 1929, arts. 22(1), 28, 49 Stat. 3000, 137 L.N.T.S. 11, reprinted in 49 U.S.C.A. § 40105 (1994) (adherence of the United States proclaimed Oct. 29, 1934) [hereinafter Warsaw Convention]; FRIEDRICH K. JUENGER, CHOICE OF LAW AND MULTISTATE JUSTICE 49 (1993).

49. Warsaw Convention, supra note 48, art. 41.


article 22(1) of the Convention imposes, but also the restriction on available fora contained in article 28. Once the actions were pending before a federal judge in Los Angeles, the plaintiffs had gained several strategic advantages. Their cases could now be tried by American attorneys who were air crash litigation experts, and the federal pre-trial discovery rules afforded them a potent device, unmatched by the law of any other country, to extract damning evidence from their opponents. Moreover, Los Angeles juries have a reputation for awarding damages that exceed many times those recoverable abroad. In comparison to the selection of the forum, the significance of the choice-of-law problem paled. In fact, plaintiffs’ counsel did not even bother to research it until after the complaints had been filed. If the magnitude of the victory is any indication, one may conclude that conflicts rules hardly deter forum shoppers.50

What the Paris Air Crash example actually shows, of course, is that foreign litigants will not select a foreign forum in which liability is sure to be denied or in which the damages recoverable will be smaller than those recoverable in a viable alternative U.S. forum. Thus, when foreign litigants are faced with the prospect of suing in a foreign nation’s court that will apply an unfavorable substantive law of liability or remedies, they will prefer a U.S. court that will apply a favorable (i.e., pro-recovery) choice-of-law approach. As Professor Juenger observes, the plaintiffs’ attorneys may only be dimly aware of the choice-of-law rules of the U.S. forum selected. I suggest, however, that if they are competent they will at least be generally aware that the U.S. court selected will apply a modern conflicts approach that has the pro-forum, pro-recovery tendencies discussed above.

In the absence of a systematic empirical investigation of why foreign litigants select U.S. courts over foreign ones, the proposition advanced in the preceding paragraphs must remain, scientifically speaking, in doubt. Nevertheless, a fair appraisal of the choice-of-law alternatives that foreign litigants confront justifies the conclusion that conflicts doctrine is somewhat more important in their selection of U.S. over foreign courts in the majority of cases than such doctrine is to domestic litigants. Only when they are choosing between different courts within the United States does choice-of-law doctrine diminish significantly as a factor in the selection of a forum.

D. Reforms to Eliminate Forum Shopping

It remains to be seen whether a change in choice-of-law doctrine within the states could eliminate any incentives that current doctrine provides to forum shop in interstate or international cases. I have elsewhere argued that existing choice-of-laws systems in the United States cannot be administered in a way that solves the current chaos in U.S. conflicts law, even if one of the systems were to be “federalized” and thus subject to review by the U.S. Supreme Court.51 This disability includes lex fori systems, even though these systems are not actually choice-of-law systems.52 However, it is a different question whether the adoption of lex fori systems by every state would increase or decrease forum shopping or would alleviate any of the other problems produced by modern conflicts systems. This question raises an intriguing possibility. The evidence indicates that modern conflict-of-

50. JUENGER, supra note 48, at 48–49; see also Juenger, Forum Shopping, supra note 1, at 560–62 (discussing the Paris Air Crash case).

51. See Whitten, Curing Conflicts Deficiencies, supra note 18, at 263–78. 52. See id. at 275–76 (discussing the limits of lex fori systems).


laws systems in the United States increase incentives to forum shop by only a small amount compared to other litigation factors. U.S. conflict-of-laws methodology, however, may produce other inefficiencies and costs in multistate and multinational litigation. For example, if U.S. courts are really manipulating modern conflicts systems in order to reach pro-forum, pro-recovery, pro-local party recovery, as the empirical studies by Professor Solimine and Dean Borchers suggest, the switch to a pure lex fori system would have the advantage of eliminating dishonest conflict-of-laws decisions. In addition, a switch to lex fori systems throughout the United States would eliminate the need to administer complex choice-of-law systems. This change would benefit litigants, who would no longer have to grapple with the mysteries of such systems in order to brief and argue conflict-of-laws issues. It would also benefit courts by eliminating the need to decide such issues. If these kinds of benefits can be achieved without exacerbating forum shopping, lex fori systems universally adopted by the states might represent a viable alternative to existing choice-of-law methods. Indeed, a switch to properly constructed lex fori systems would arguably be beneficial even if forum-shopping incentives continued to exist at the same level because the other complexities of modern choice-of-law doctrine could be avoided under a universal lex fori approach.

To determine whether the universal or nearly universal adoption of lex fori systems could have a beneficial effect, it will be useful to examine the experience of the several states that have adopted the lex fori approach in the United States. If one of the lex fori systems now in effect achieves the beneficial results described above, that system might be used as a model for other states. Even if the currently existing lex fori systems are unsuitable models, examination of the existing lex fori approaches might suggest modifications to the systems that would offer a better alternative than the current choice-of-law chaos in the United States.

III. THE LEX FORI APPROACH AND INTERSTATE AND INTERNATIONAL FORUM SHOPPING

A. The Nature and Extent of Lex Fori Systems in the United States

As Professor Juenger has observed, lex fori systems seek to avoid a choice-of-law decision altogether by not posing a choice-of-law question.53 Although lex fori systems have a significant historical pedigree,54 only three U.S. states have adopted a lex fori approach, and at this writing, those states have only adopted it for tort cases.55 However, the empirical and non-empirical evidence discussed in Section II indicates that there is a strong statistical tendency in states using one of the modern conflict-of-laws methodologies to select forum law.56 As suggested at the end of the preceding section, this tendency raises the intriguing possibility that the universal adoption of lex fori approaches might not worsen forum shopping and may even produce benefits. An examination of the existing lex fori

53. Friedrich K. Juenger, The Need for a Comparative Approach to Choice-of-Law Problems, 73 TUL. L. REV. 1309, 1315 (1999).

54. Id. at 1315. The English common law courts once dealt with cases involving foreign facts by assuming that the events transpired in England and applying the law of the forum. Id. There are also other historical examples of the lex fori approach. JUENGER, supra note 48, at 7 (discussing the lex fori approach in ancient Greece).

55. Symeonides, supra note 32, at 13 (listing in Table 1 the states of Kentucky, Michigan, and Nevada as lex fori states in torts).

56. See supra notes 17–32 and accompanying text (discussing the pro-forum law tendencies of the modern American conflicts systems, i.e., the non-First Restatement systems).


systems will indicate whether any of those systems provides a useful model for adoption by other states.

B. Kentucky

Kentucky adopted a lex fori approach in Foster v. Leggett.57 In Foster, the plaintiff brought a wrongful death action against the defendant-driver in a Kentucky court for the death of a passenger.58 At the time of the accident that produced the death, the defendant was driving in Ohio.59 The defendant pleaded the Ohio guest statute in defense. That statute provided that a nonpaying guest could not recover damages for injury or death from the operator of a motor vehicle unless the death was caused by willful or wanton misconduct of the operator, of which there was none on the facts of the case. At the time of the accident, the decedent was domiciled in Kentucky and the defendant was domiciled in Ohio. The defendant had picked up the decedent in Kentucky, and the parties proceeded to Ohio in the defendant’s automobile for a one-day excursion from Russell, Kentucky to Columbus, Ohio and back. It was on their journey to Columbus that the fatal accident occurred, allegedly due to the negligence of the defendant. The trial court applied the Ohio guest statute and granted summary judgment for the defendant.60

On appeal, the Court of Appeals of Kentucky reversed, abandoning the lex loci rule of the First Restatement.61 The court stated:

[W]hen the court has jurisdiction of the parties its primary responsibility is to follow its own substantive law. The basic law is the law of the forum, which should not be displaced without valid reasons. We have not, therefore, tried to adopt a rule, or rules, for all cases of this kind which may come before us. In the case at bar, contacts with Kentucky were numerous and significant. Decedent was a lifelong resident of Kentucky. While appellee was a resident of Ohio, he kept a rented room near his work in Kentucky, stayed in it on the average of two nights per week and all his employment and most of his social relationships were in Kentucky. The fatal journey began in Kentucky and was to have been concluded in Kentucky. So we conclude that the reasons appellee here advances, that the accident occurred in the State of Ohio and that appellee was domiciled and had a residence in that state, are not sufficient in view of the contacts the State of Kentucky had with the parties to justify the displacement of the law of this forum with the law of the State of Ohio. . . .[I]f there are significant contacts—not necessarily the most significant contacts—with Kentucky, the Kentucky law should be applied.62

The court’s opinion is clearly a rejection of the then-developing “most significant contacts” test of the Second Restatement.63 However, other than a listing of the

57. 484 S.W.2d 827 (Ky. 1972). 58. Id. at 827. 59. Id. 60. See id. at 827–29 (discussing the facts and procedural history of the case). 61. Id. at 829. 62. Id. 63. See Foster v. Leggett, 484 S.W.2d at 830–31 (Reed, J., with whom Milliken, J. joined, dissenting)

(arguing that while the majority’s approach had the virtue of simplicity and predictability, it should yield to the


relationships between the parties and events and Kentucky, the court’s opinion contains no explanation of how to determine whether the contacts among a state, particular occurrences, and the parties are “significant.” It is clear that under the governmental interest analysis of Professor Brainerd Currie,64 both Kentucky and Ohio would have an interest in having their laws applied to the case.65 This, at least, makes it clear that the existence of contacts with another state that give rise to an interest in applying that state’s law will not be a reason to displace forum law in Kentucky when the latter state also has contacts giving rise to interests in applying its own law.66 Beyond this bare interest analysis, however, it is impossible to determine when the Kentucky Supreme Court will consider a contact with the state “significant.” This ambiguity in the court’s approach poses the danger that litigants will simply substitute objections and arguments about the “significance” of contacts with the state for the kinds of issues typically raised under traditional conflict-of-laws systems. If so, Kentucky’s system will not completely eliminate the transaction costs of complex choice-of-law arguments that exist in non-lex fori, modern U.S. conflicts systems. Nor will there be meaningful gains in judicial honesty if Kentucky judges approach the question of “significant contacts” in the same way that U.S. judges usually approach choice-of-law questions.

C. Nevada

In Motenko v. MGM Dist., Inc., Nevada took a slightly different approach to lex fori.67 Here the plaintiff’s mother slipped on a loose tile in a hotel owned by the defendant and was injured.68 The plaintiff sued for loss of parental consortium, a claim recognized by Massachusetts, the home of the plaintiff and his mother, but not recognized in Nevada.69 The Nevada district court applied Nevada law as the lex loci delicti and dismissed the action. The Supreme Court of Nevada affirmed, but rejected the lex loci delicti rule.70 However, the court also rejected the most significant contacts analysis of the Second Restatement, stating that the “test suffers from two defects—lack of uniformity and lack of predictability.”71 Instead, the court proposed “an approach that would harmonize Nevada’s interest in stability in this area and the substantial relationship test.”72

overriding policy considerations embodied in Section 6 of the Second Restatement to achieve more realistic, and therefore more just, results).

64. See Brainerd Currie, Notes on Methods and Objectives in the Conflict of Laws, in SELECTED ESSAYS ON THE CONFLICT OF LAWS 177, 178–79 (1963) (describing the governmental interest analysis).

65. See EUGENE F. SCOLES ET AL., CONFLICT OF LAWS § 17.13 (3d ed. 2000). Under the assumptions of interest analysis, both Kentucky and Ohio would be interested in applying their law. Id.

66. Cf. id. (according to the Kentucky court, the occurrence of an accident in a given state is enough of a contact for applying forum law but not enough of a contact for applying non-forum law). Subsequent Kentucky decisions have established that Foster does not apply to contract conflicts, which are governed by the most significant contacts analysis of the Second Restatement. See Bonnlander v. Leader Nat’l Ins. Co., 949 S.W.2d 618, 620 (Ky. 1997) (rejecting Foster’s applicability to an issue concerning whether Indiana or Kentucky law applied to the recovery of uninsured motorist benefits under an insurance contract); see also Wallace Hardware Co., Inc. v. Abrams, 223 F.3d 382, 394–95 (6th Cir. 2000) (distinguishing Kentucky tort choice-of-law cases from Kentucky contract choice-of-law cases).

67. Motenko v. MGM Dist., Inc., 921 P.2d 933 (Nev. 1996). 68. Id. at 934. 69. Id. 70. Id. at 935. 71. Id. 72. Id.


Under this approach, the law of the forum . . . governs in a tort case, unless another state has an overwhelming interest. Another state has an overwhelming interest if two or more of the following factors are met:

(a) it is the place where the conduct causing the injury occurred; (b) it is the place where the injury is suffered; (c) the parties have the same domicile, residence, nationality, place of incorporation, or place of business and it is different from the forum state; (d) it is the place where the relationship, if any, between the parties is centered.73

In the court’s view this approach “meets the goal of a higher degree of certainty, predictability, and uniformity of result” and “also allows a court to more frequently apply the law with which it is most familiar—its own law,” while still allowing some flexibility “in order to avoid irrational and unjust results.”74 On the facts of the case, the presumption in favor of applying forum law could not be rebutted because only the fact that his injury (i.e. loss of consortium) occurred in Massachusetts supported application of non-forum law.75

Although the four-factor test may seem to advance the cause of predictability, the test actually creates an “escape device” that promotes the very kinds of transaction costs and judicial dishonesty that beset modern conflict-of-laws systems. In addition, certain factors resemble those factors used under the Second Restatement, but the majority in Motenko transformed the way in which those factors have been traditionally phrased, thus injecting further ambiguity into their administration.76 More importantly, however, one of the criticisms of the First Restatement system was that allocating the solution of a choice-of-law problem to the entire substantive law of a state based on a single triggering event doomed the system to produce results detached from sensible reasons connected to the policies supporting the laws of the concerned states.77 In effect, the majority’s approach is subject to the same criticism. The four factors that the majority listed amount to a simple quantitative list and are detached from any of the policies supporting the laws of the involved non-forum

73. Motenko, 921 P.2d at 935. 74. Id. 75. Id. at 935–36. This was an unusual way in which to determine where the injury occurred. See infra note

76 (discussing Chief Justice Steffen’s dissenting opinion). More recently, the Nevada Supreme Court held Nevada law applicable under the Motenko test to wrongful death actions brought to recover for the death of two Nevada residents and four California residents in an accident in California. Northwest Pipe Co. v. Stayton, 42 P.3d 244 (Nev. 2002). The court observed that Motenko recognized that an accident can occur in one state, but the compensable injury can be “suffered” in another state. The court viewed the injury here as being to the survivors, who were almost all Nevada residents. Id. at 246. This fact pointed to the application of Nevada law. The principal opinion did not discuss why it was appropriate to apply Nevada law to the California survivors. Two concurring justices, however, disagreed with the application of Nevada law to the California survivors, and two dissenters agreed with them, making a majority for the application of California law to the California parties. Id. The two dissenters also disagreed with the Motenko test and would have applied the test of THE RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 175 (1971), which they interpreted as requiring the application of California law to all survivors. Id.

76. As Chief Justice Steffen observed in dissent, the majority transformed the normal phrasing of the first factor, “the place where the conduct causing the injury occurred,” into “the place where the conduct giving rise to the injury occurred,” thus “introducing terminology that is conducive to uncertainty.” Motenko, 921 P.2d at 940. In addition, the second factor appears in the RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145 (1971), as “the place where the injury occurred,” while the majority changes the word “occurred” to “suffered,” thus (arguably) altering the basic meaning of the factor so that it could be counted in favor of applying non-forum law. Id. at 935 (emphasis added).

77. See Whitten, Curing Conflicts Deficiencies, supra note 18, at 268 (listing this among the traditional criticisms).


states.78 The majority opinion does not alleviate the problem that this mechanical approach creates by requiring that two or more factors appear in the same case in order to displace forum law. The same arbitrary results that do not further the interests of any concerned state will occur by requiring the presence of multiple quantitative factors as occurred under the First Restatement’s single triggering event approach.79 Thus, Nevada, like Kentucky, has not successfully eliminated the defects of a choice-of-law approach by adopting a lex fori system. The ambiguity of the Nevada approach means that complicated choice-of-law arguments will still have to be made and disposed of in multistate and multinational cases, and the same ambiguity lends itself to the kind of judicial manipulation of the system that characterizes modern U.S. conflict-of-laws systems. In addition, the mechanical fashion in which the court’s four-factor analysis is framed preserves the worst features of the vested-rights system.

D. Michigan

A third lex fori approach is represented by the opinion of the Supreme Court of Michigan in Sutherland v. Kennington Truck Service, Inc.80 In Sutherland, Ohio plaintiffs suffered injuries in an accident with Ontario defendants in Michigan.81 The plaintiffs commenced an action in Michigan to recover for their injuries.82 The Michigan trial court held the action time-barred by the Ontario statute of limitations.83 On appeal, the Michigan Supreme Court held that the Michigan statute of limitations applied, with the result that the action was not time-barred.84 In the process, the court adopted a lex fori approach to determination of the applicable law.85 The court stated:

[W]e will apply Michigan law unless a “rational reason” to do otherwise exists. In determining whether a rational reason to displace Michigan law exists, we undertake a two-step analysis. First, we must determine if any foreign state has an interest in having its law applied. If no state has such an interest, the presumption that Michigan law will apply cannot be overcome. If a foreign state does have an interest in having its law applied, we must then determine if Michigan’s interests mandate that Michigan law be applied despite the foreign interests.86

78. See Motenko, 921 P.2d at 938–43 (Steffen, C.J., with whom Springer, J., joined, dissenting). Chief

Justice Steffen criticized the majority opinion for taking a quantitative rather than a qualitative approach to the conflicts problem. As he stated, “[t]he majority concludes that Nevada should abandon the ‘vested rights’ approach to torts, and then proceeds to adopt a hybrid rule that amounts to little more than the vested rights doctrine with a twist of lime.” Id. at 938.

79. See Whitten, Curing Conflicts Deficiencies, supra note 18, at 268 n.29 (discussing the arbitrariness resulting from the fortuitous triggering events that characterized the First Restatement approach).

80. 562 N.W.2d 466 (Mich. 1997). 81. Id. at 467. 82. Id. 83. Id. 84. Id. 85. After reviewing the history of the choice-of-law revolution, the court cited Dean Borchers’s research,

discussed in Section II.B, see supra text accompanying notes 17–26, stating that this research showed that under each of the modern approaches, the courts tended to select forum law in fifty-five to seventy-seven percent of the time. Sutherland, 562 N.W.2d at 469.

86. Id. at 471 (citing Olmstead v. Anderson, 428 Mich. 1, 24, 29–30 (Mich. 1987)).


This passage combines a presumption in favor of forum law with governmental interest analysis87 to produce a hybrid lex fori system. The main ambiguity in the court’s opinion concerns how it will determine whether, if another state has an interest in having its law applied, Michigan’s interests mandate that Michigan law be applied “despite the foreign interests.” The court did not reach this question because it determined that neither Ontario nor Ohio had an interest in having its statute of limitations applied to the case. Thus, the presumption in favor of Michigan law stood unrebutted.88

As with the Kentucky and Nevada approaches, the Michigan approach does not significantly eliminate the transaction costs involved in a choice-of-law system. The escape device of allowing non-forum law to apply when another state has an “interest” assures that litigants will make, and Michigan courts will grapple with, complex choice-of-law arguments. Similarly, the fluid nature of the state-interest inquiry left open by the court virtually ensures that judicial manipulation will occur. It seems unlikely that the court can clarify the test in a manner that would reduce this need as long as it is intent on retaining an escape device that will allow it to select non-forum law in particular cases.

E. Evaluation of the Existing Lex Fori Systems

None of the approaches taken by the three lex fori states would materially improve any of the existing difficulties with the existing modern conflict-of-laws systems in the United States, even though it is also unlikely that they would increase forum shopping. One of the main problems with modern conflicts systems, as revealed by the research of Professor Solimine and Dean Borchers discussed in Section II,89 is their malleability. The fluid nature of the modern systems invites manipulation by the judges to reach results that they prefer rather than results that a hypothetically objective analysis would produce.90 In addition, there is at least some reason to believe that the modern systems are so complex that many

87. Indeed, the court’s approach in Sutherland has been interpreted by the Michigan Court of Appeals as an

“interest analysis” approach. In Hall v. General Motors Corp., 582 N.W.2d 866, 868 (Mich. Ct. App. 1998), the court stated:

In tort cases, Michigan courts use a choice-of-law analysis called “interest analysis” to determine which state’s law governs a suit where more than one state’s law may be implicated. Although this balancing approach most frequently favors using the forum’s [Michigan’s] law, Michigan courts nonetheless use another state’s law where the other state has a significant interest and Michigan has only a minimal interest in the matter . . . .

Id. (citations omitted). In Hall, the court of appeals ultimately held that North Carolina law, rather than Michigan law, should be applied because North Carolina had a substantial interest in having its statute of repose applied to a plaintiff who resided in North Carolina at the time of the accident, which also occurred in North Carolina. Id. The court also held that Michigan had no significant interest in the litigation, even though General Motors was the defendant in the action, because of the North Carolina residence of the plaintiff at the time of the accident and the occurrence of the accident in North Carolina. See id. at 868–71.

88. Sutherland, 562 N.W.2d at 472–73. 89. See supra text accompanying notes 21–23, 28–30 (discussing the conclusions reached by Professor

Solimine and Dean Borchers). 90. It is, of course, true that one of the main criticisms of the traditional vested-rights system of the First

Restatement was that the judges manipulated the seemingly rigid rules of the system through a variety of escape devices such as characterization of cases (contracts rather than tort) and issues (procedural rather than substantive) and the public policy exception. See Whitten, Curing Conflicts Deficiencies, supra note 18, at 267–68 (discussing the problems with the traditional vested-rights system). However deficient in terms of manipulability the traditional system was, the modern systems have certainly not cured the problem. See id. at 270–75 (discussing the problems with the modern conflicts systems).


judges do not understand the systems and, thus, cannot competently apply them.91 It is often difficult to distinguish between a manipulative application of a modern conflicts system and an incompetent one, but evidence of both kinds of applications exists.92

Because they retain substantial escape hatches, the existing lex fori cases do not eliminate the problem of malleability that exists in modern conflicts systems.93 This

91. For example, under the approach of the Second Restatement, the courts are supposed to first determine the substantive category of cases within which the issue falls (contracts, torts, etc.) and then locate within the appropriate substantive chapter the most precise “jurisdiction selecting rule” applicable to the issue. They are then supposed to test whether that rule should be used to select the applicable law, by connecting the relevant contacts between the potentially concerned states and the parties and events giving rise to the suit with the factors located in Section 6 of the Second Restatement, to see if the state designated by the presumptively applicable jurisdiction-selecting rule is really the state of the most significant relationship. In the end, they are supposed to apply the law of the state of the most significant relationship. See id. at 270. There is substantial evidence that the courts do not employ this process. See, e.g., Patrick J. Borchers, Courts and the Second Conflicts Restatement: Some Observations and an Empirical Note, 56 MD. L. REV. 1232, 1240–46 (1997) (describing the tendency of the courts following the Second Restatement to rely on the general sections of the Second Restatement to the exclusion of the other sections); Symeon C. Symeonides, The Judicial Acceptance of the Second Conflicts Restatement: A Mixed Blessing, 56 MD. L. REV. 1248, 1272–73 (1997) (describing how the courts applying the Second Restatement ignore the sophisticated dialectical process of evaluating the policies listed in Section 6 in light of the pertinent factual contacts). If the courts were competently applying the Second Restatement, but manipulating it to achieve the results they wished, they could do so by applying the system in the way that the drafters of the Second Restatement envisioned, but manipulating the Section 6 factors by attaching the weight necessary to those factors to achieve the results that they wanted to reach.

92. For example, in the Sutherland case, discussed supra in the text accompanying notes 80–88, the court in evaluating the propriety of applying the statutes of limitations of the different jurisdictions involved, opined that it would be unconstitutional to apply Ohio’s statute to the action to bar the action under the Supreme Court’s holding in Allstate Insurance Co. v. Hague, 449 U.S. 302 (1981) and Home Insurance Co. v. Dick, 281 U.S. 397 (1930), which the court read as establishing that the plaintiff’s residence alone was not a sufficient contact to allow the application of a state’s law under the Due Process Clause of the Fourteenth Amendment. However, the Dick case invalidated the application of a law of the plaintiff’s residence that would have allowed recovery against the defendant. Application of the law of the state of the plaintiff’s residence in Sutherland would have produced victory for the defendant. It is mystifying, to say the least, how the court thought that application of the plaintiff’s home-state statute of limitations to produce a loss for the plaintiff and a win for the defendant could deny either the plaintiff or defendant due process of law. This was, of course, a mistake in the application of a constitutional analysis to a conflicts issue, but there are plenty of examples of grossly misguided applications of conflicts systems in their own right. For example, in Hernandez v. Burger, 162 Cal. Rptr. 564 (Cal. Ct. App. 1980), the California Court of Appeal, applying a variant of governmental interest analysis, identified the policy supporting a Mexican limit on the amount of damages that could be recovered for wrongful death to be based on a policy of encouraging tourism! See also Offshore Rental v. Continental Oil Co., 583 P.2d 721, 728–29 (Cal. 1978), finding, inter alia, that the policies supporting a Louisiana law, which did not provide for a recovery of damages for injury to a key employee due to a defendant’s negligence, would be undermined by application of California law by a California court to impose such liability. The court reasoned that the Louisiana rule of nonliability was designed to encourage corporations to do business in Louisiana without fear that they could be held liable for injuries to the key employees of others. In the court’s view, application of California law to impose such liability would undermine this policy, but how this could be so is mysterious. No rational corporation would refuse to do business in Louisiana because a California court imposed liability under a California law for an injury occurring in Louisiana, although a rational corporation might try to avoid activities in California so California courts could not obtain personal jurisdiction over it to render such choice-of-law decisions. For examination of incompetent application of Professor Leflar’s system of choice-influencing considerations by several courts, see Whitten, Better Law System, supra note 43, at 182–84, 212–14.

93. Recall that the Kentucky Supreme Court, in Foster, held that if there were “significant contacts” with Kentucky, albeit not necessarily the most significant contacts, Kentucky law would be applied even if a non-forum state also had contacts. See supra text accompanying notes 62–66. This is the least malleable of the three lex fori approaches, although even here there is the necessity of determining when the contacts with Kentucky are significant, a matter that the court did not address. Nevada’s system in Motenko v. MGM District, Inc. is far more fluid, given the ambiguous two-out-of-four-factor test that the court articulated for determining when another state’s law should displace forum law. See supra text accompanying notes 73, 76. Michigan’s approach in Sutherland, however, may be the most fluid of the group, given that the Michigan Supreme Court indicated that forum law could be displaced if a “rational reason” to do so exists; a rational reason may exist on some occasions when both Michigan and another state have an interest, but the court did not indicate when this would be so, thus inviting litigation over the matter frequently and at length. See supra text accompanying notes 86–88.


malleability, in turn, preserves the transaction costs of the modern fluid systems that cause so much difficulty in terms of the predictability of results, not at the primary stage of activity, but at the stage when a lawyer must advise a client about the prospects of winning or losing litigation. In addition, the lex fori systems, as currently framed, retain the necessity for elaborate briefs and arguments on whether the escape hatches in each system apply, thereby allowing the displacement of forum law. These costs are the kinds of transaction costs that a less porous lex fori system would eliminate.

On the other hand, it does not seem likely that universal adoption of one of the existing lex fori systems or even a simpler system with fewer loopholes, would increase forum shopping. Given lex fori systems’ uncertain qualities, lawyers are neither more nor less likely to be influenced by concerns about the applicable law under these systems than they are by such concerns under the modern “true” conflict-of-laws systems existing in the United States, which also do not lend themselves to post-event predictability of results except in the statistical sense discussed in Section II(B).94 This statistical probability discussed above is precisely that a forum applying a modern conflict-of-laws system will apply its own law, which is also the result that is predictable under either existing or hypothetically “pure” lex fori systems.95

Lex fori systems containing no escape devices would enhance the post-event predictability of forum law application and would reduce the possibility of judicial manipulation, but some unpredictability would still exist in even a “pure” lex fori system due to constitutional limitations on the power of the states to apply their law to civil cases imposed by the Full Faith and Credit Clause96 and the Due Process Clause.97 In Allstate Insurance Co. v. Hague, a Supreme Court majority agreed that the test for whether a state could apply its own law to a case is the same under both the Full Faith and Credit Clause and the Due Process Clause.98 The test asks whether the state has a sufficient contact or aggregation of contacts creating state interests that would make the application of the forum’s law neither arbitrary nor fundamentally unfair.99 This test places only modest restrictions on a state’s ability to apply its law to a case rather than the law of another state.100 In most cases when a state applies its own law under a lex fori system, there will be little doubt that the state possesses sufficient contacts to satisfy constitutional standards, at least if the Supreme Court applies the Allstate standard in the same fashion that it was applied by the plurality opinion in Allstate. The plurality applied the “significant contacts creating state interests” standard in a general way to sustain the forum’s choice of its own law to govern an insurance issue.101 The plurality did not examine the policies supporting

94. See supra text accompanying note 30 (discussing how the empirical work done by Dean Borchers and

Professor Solimine supports Professor Juenger’s conclusions that modern conflicts systems influence forum shopping somewhat, but that the forum-shopping decision is dominated by other factors).

95. See discussion supra Section II.B. This is especially true under the modern systems if forum law is pro-recovery or pro-local litigant. See supra text accompanying note 23.

96. U.S. CONST. art. IV, § 1. 97. U.S. CONST. amend. XIV, § 1. 98. Id. 99. Allstate Ins. Co. v. Hague, 449 U.S. at 312–13, 332. The Allstate test only applies to “nontraditional”

choice-of-law decisions. In Sun Oil Co. v. Wortman, 486 U.S. 717 (1988), the Supreme Court held that when a state is applying a traditional choice-of-law rule, i.e., one that was accepted at the time the Full Faith and Credit and Due Process Clauses were ratified and whose acceptance has continued into the present, the choice-of-law rule is constitutionally valid without regard to the Allstate test.

100. See Allstate Ins. Co., 449 U.S. at 332 (Powell, J., dissenting). 101. See id. at 302–20 (Brennan, J., with whom White, J., Marshall, J., & Blackmun, J., joined, concurring).

The issue in the case was whether the uninsured motorist coverage under three automobile insurance policies of $15,000 per policy could be “stacked” to produce a total recovery of $45,000. The policies were issued in Wisconsin, to a Wisconsin resident, and the accident in question occurred in Wisconsin and was entirely between Wisconsin residents. The action was brought in Minnesota after the widow of the decedent-owner of the policies


the Full Faith and Credit and Due Process Clauses to determine whether those policies restricted a state’s ability to apply its own law to a civil action in different ways. Nor did the plurality closely analyze the forum’s contacts to determine how they produced a governmental interest on the part of the state in applying its law to the issue involved in the case.102 Under this approach, a court operating under the lex fori approach can easily justify the constitutional application of its law, because any contacts that the state has with the parties or the events giving rise to a suit will not have to be connected in a rational way to policies that support the application of the state’s laws.

However, there is some reason to believe that a majority of the Court may someday approve a more rigorous application of the Allstate test. Justice Stevens concurred in Allstate, but he argued that the Full Faith and Credit and Due Process Clauses are designed to protect different policies and should be analyzed separately to determine whether a state’s application of its law is unconstitutional.103 To Stevens, the Full Faith and Credit Clause was designed to transform the states from independent sovereigns into a single unified nation.104 The clause does so by protecting the sovereign interests of the states from illegitimate encroachment by other states.105 The Due Process Clause was designed to protect defendants from choice-of-law decisions that result in unfair surprise by producing the application of a law to the defendants that could not have been anticipated at the time that they engaged in the conduct that is the subject of the action.106

In addition to Justice Stevens’s concurrence, three other justices dissented in the action.107 These justices agreed with the plurality that the “significant contacts giving rise to state interests” standard was proper under both the Full Faith and Credit Clause and Due Process Clause. However, like Justice Stevens, in applying the standard, the dissenters separated their analysis under each clause. They applied the standard more rigorously than did the plurality in an attempt to measure whether the contacts with Minnesota were sufficient to create interests in applying its law to the particular issue under each constitutional clause. Under this approach, the dissenters concluded that the contacts between a state and the litigation must be assessed in light of the policy of both the Due Process Clause (to prevent defeat of the expectations of the parties [or unfair surprise])108 and the Full Faith and Credit Clause (to assure that a state has sufficient connection to the facts giving rise to the litigation to implicate the legitimate scope of its lawmaking

moved there. The Minnesota Supreme Court held that Minnesota law, which permitted stacking, should be applied rather than Wisconsin, and the United States Supreme Court held this to be constitutional.

102. See id. at 313–20. The contacts with the forum, Minnesota, were (1) that the decedent, a Wisconsin resident who was killed in Wisconsin and to whom the automobile insurance policy in question was issued in Wisconsin, worked in Minnesota prior to his death; (2) Allstate did business in Minnesota; and (3) the decedent’s widow, who was the plaintiff in the action, moved to Minnesota after the action. The plurality simply counted these contacts without matching them carefully to the legal issue in the case to determine whether they produced a legitimate state interest on the part of Minnesota in controlling the stacking issue that was involved in the case.

103. See id. at 320–22 (Stevens, J., concurring). Justice Stewart did not participate in the decision of the case.

104. Id. at 322. 105. See id. at 322–26. Justice Stevens, although viewing Minnesota’s decision to apply its own law as

unsound as a matter of choice-of-law, considered that the Full Faith and Credit Clause was not violated because the insurance contract in question obviously envisioned that the law of other states might be applied to the contract. Thus, the application of Minnesota law did not threaten Wisconsin’s sovereignty.

106. See Allstate Ins. Co., 449 U.S. at 326–31 (Stevens, J., concurring). Justice Stevens felt that due process was satisfied by the application of Minnesota’s law because the rule followed by the state was the majority rule throughout the United States and the parties could have envisioned that a law other than that of Wisconsin, where the policy was issued, might be applied to the automobile insurance policy that was the subject of the action. See id. at 327–29.

107. See id. at 332–40 (Powell, J., with whom Burger, C.J., & Rehnquist, J., joined, dissenting). 108. See id. at 333–34.


jurisdiction.)109 Applying the clauses in this manner, the dissenters found that the application of forum law did not violate the Due Process Clause,110 but that the contacts between the forum and the litigation were insufficient to give it an interest in applying its public policies. In drawing the latter conclusion, the dissenters examined the contacts between the forum and the litigation and concluded that none of them justified application of the state’s substantive law to the particular issue in question.111

Taken together, Justice Stevens’s and the dissenters’ opinions indicate that the loose approach of the plurality to the “significant contacts creating state interests test” may not survive in future cases. A majority of the Court may at some future date insist that the policies supporting the Full Faith and Credit and Due Process Clauses be separately satisfied in each case by matching the forum’s contacts with the legal issues involved in the action. Under such an approach, the Court may insist that the forum have contacts with the litigation that would both prevent unfair surprise to the defendant and provide a realistic connection with the policies supporting the forum law at issue.112 This expanded standard would impose greater obstacles to a universal application of lex fori approaches than the plurality’s approach in Allstate, but would not place great restrictions on the application of forum law in the majority of cases. This fact is especially true in tort cases, in which it is often difficult to argue that the expectations of the defendant are involved in essentially unplanned transactions.113

More importantly, whether the loose standard of the Allstate plurality or a more rigorous test is applied, all existing conflict-of-laws systems must comply with the test. Thus, applying a modern conflicts system, rather than a lex fori system, does not avoid the need to ask whether the application of a state’s law comports with the Full Faith and Credit

109. See id. at 334. 110. See id. at 336. In essence, the dissenters found that there could be no unfair surprise to the parties for

the same reason as that given by Justice Stevens: the risk insured by the defendant was not geographically limited; therefore, the defendant could have anticipated that the law of some state other than Wisconsin, where the policy was issued, could eventually be applied to determine its liabilities under the policy.

111. See Allstate Ins. Co., 449 U.S. 302, 337–40 (1981). The only contact that might have created a state interest in applying the forum’s law to permit stacking of the uninsured motorist coverages of the decedent’s insurance policy to give a higher recovery to the plaintiff was the plaintiff’s residence in the forum. However, the dissenters viewed this contact as irrelevant because the plaintiff had moved to the forum after the events giving rise to the claim occurred. The other contacts were that the insurer did business in the state and that the decedent had worked in the state prior to his death. Although the dissenters agreed that these contacts might have been relevant to some of the forum’s laws, they were not relevant to the particular stacking issue that was involved in the litigation.

112. One subsequent Supreme Court decision seems to confirm this, emphasizing the need to prevent defeat of the parties’ expectations under the due process test. In Philips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), the Court applied the Allstate test to invalidate the application of Kansas law to the claims of plaintiff class members that had arisen outside Kansas and had no contacts with Kansas. The Court’s analysis was not entirely illuminating, but in holding Kansas’s choice of law invalid, the Court did emphasize the expectations portion of the dissenting opinion. See id. at 822.

113. Because of the existence of so-called transient presence, or “tag,” jurisdiction, it is possible to envision tort cases in which a defendant might be unfairly surprised by the application of forum law. For example, assume that P, a citizen of State X, is driving in State Y when P collides with D, a citizen of State Y, thereby suffering personal injuries. P sues D in State X to recover for the personal injuries, having D served personally in State X while D is temporarily present there. P’s allegation is that D was driving negligently at excessive speed. The speed limit on the highway in State Y on which the parties were driving at the time of the accident was 65 miles per hour, and D was driving at 60 miles per hour. The speed limit on all State X highways is 55 miles per hour. If the State X court were to apply the State X speed limit under a lex fori system, it would violate the Due Process Clause by causing unfair surprise to D, because it would be impossible for D to anticipate that the speed limit of any state other than State Y where D was driving would be applied to D’s conduct. However, this kind of case would be so rare that one may be assured that application of a lex fori system to most tort cases will easily satisfy due process. For a discussion of transient presence jurisdiction, see MCDOUGAL III ET. AL., supra note 15, § 21; TEPLY & WHITTEN, supra note 15, at 212–16.


and Due Process Clauses.114 This step means that the transaction costs of the constitutional inquiry cannot be avoided in any marginal multistate or multinational case.115 If all states adopted a lex fori approach without loopholes, therefore, the transaction costs of making a complex conflict-of-laws inquiry could be avoided without increasing forum-shopping incentives. The remaining escape hatch of a constitutional inquiry would rarely be present to complicate the action and would, in any event, be present in the same kind of case under a choice-of-law approach.

On the whole, therefore, one can be relatively certain that universal adoption of lex fori systems without escape devices would (1) not worsen forum shopping; (2) eliminate or dramatically decrease judicial dishonesty in selecting the applicable law; (3) eliminate the other transaction costs involved in administering modern conflict-of-laws systems; and (4) present no more frequent or severe constitutional problems than currently exist under existing U.S. choice-of-law doctrine. There remain, however, two questions about universal adoption of lex fori systems: (1) whether universal adoption is desirable, and (2) whether it is feasible.

In answering the first question, the issue is: desirable compared to what? Scholars generally concede that U.S. choice-of-law doctrine is a mess.116 In commenting on the desirability of a Third Restatement of Conflict of Laws, Professor Juenger himself asked: “How does one restate gibberish?”117 In truth, there is no realistic possibility of formulating a conflict-of-laws system that will solve the current conflicts chaos. All that can be hoped for is the adoption of a system that determines the applicable law and diminishes the harm that the existing systems do to the U.S. legal system. There may not exist an alternative to the current conflicts chaos other than the universal adoption of lex fori systems that would reduce judicial manipulation that occurs in existing U.S. conflicts systems and create post-event certainty in determining the applicable law.118

The second question is even easier to answer. Given the diverse approaches to choice-of-law in the United States, it is not realistic to expect all states to arrive at the conclusion that lex fori is the best option available under bad circumstances. Indeed, given that U.S. judges currently enjoy considerable freedom in the selection of the applicable law and appear quite satisfied with the manipulable systems that they are now administering, it seems unlikely in the extreme that they would be willing voluntarily to relinquish the flexibility they now possess.119 After all, even the courts adopting lex fori methodology felt the need to qualify their systems with escape devices.120

114. Indeed, in Hague v. Allstate Insurance Co., 289 N.W.2d 43 (Minn. 1979), the Minnesota Supreme Court applied Professor Leflar’s choice-influencing considerations to select Minnesota law as applicable, relying heavily on the “better law” factor in selecting forum law as applicable. For a discussion of Leflar’s system, see MCDOUGAL ET AL., supra note 15, §§ 93–99. The “better law” factor is discussed in id. § 98; see also Whitten, Better Law System, supra note 43, at 226–30 (discussing the “better law” factor).

115. In multinational cases, the only relevant clause is the Due Process Clause of the Fourteenth Amendment, because the Full Faith and Credit Clause only applies to the “public acts, records, and judicial proceedings” of other states, not other nations. See RESTATEMENT (SECOND) CONFLICT OF LAWS, Introductory Note at 272 (1971); Andrew L. Strauss, “Could a Treaty Trump Supreme Court Jurisdictional Doctrine?”: Where America Ends and the International Order Begins: Interpreting the Jurisdictional Reach of the U.S. Constitution in Light of a Proposed Hague Convention on Jurisdiction and Satisfaction of Judgments, 61 ALB. L. REV. 1237, 1247 (1998).

116. See Kermit Roosevelt, The Myth of Choice of Law: Rethinking Conflicts, 97 MICH. L. REV. 2448, 2449 (1999) (“Choice of law is a mess.”).

117. Friedrich K. Juenger, A Third Conflicts Restatement?, 75 IND. L.J. 403, 403 (2000). 118. As long as rules of personal jurisdiction and venue permit broad choice of fora in which plaintiffs may

sue and are unmitigated by other devices such as forum non conveniens dismissals and injunctions against suit, there is little hope of achieving pre-event certainty across substantive lines in predicting the applicable law.

119. It is important to remember that the empirical studies conducted by Dean Borchers and Professor Solimine do not simply indicate that there is a strong tendency under modern conflicts systems to apply forum


One other possibility is that national legislation might offer at least a partial solution to existing U.S. conflicts problems. I have elsewhere argued that Congress has the power to address a number of conflicts problems through uniform national legislation creating substantive rules for multistate and multinational transactions,121 uniform national conflicts rules,122 rules restricting forum access,123 and judgment enforcement rules.124 Even the extensive authority that Congress now possesses to regulate conflicts matters, however, would arguably leave many gaps, even if only because Congress might decide to proceed cautiously in addressing conflicts issues with uniform national rules in all areas in which such rules are possible. It is, therefore, interesting to inquire whether Congress possesses the constitutional power to mandate the application of forum law in cases within the gaps.

IV. A NATIONAL “DEFAULT” LEX FORI RULE

The fundamental problem with U.S. conflicts law is that there is no single institution that currently possesses the power to (1) determine when uniformity in multistate and multinational transactions is desirable, and (2) mandate that uniformity, whether through a single conflict-of-laws system, uniform substantive rules for multistate and multinational transactions, or otherwise. Although the U.S. Supreme Court has the power to review state-court decisions on federal issues,125 such as when the constitutional power of a state to apply its own law is in issue,126 the Court does not possess supervisory power over state conflict-of-laws doctrine in the absence of a constitutional question.127 If the problems of multistate

law, but also that the modern systems tend to result in the application of law that is substantively pro-recovery and that favors local parties. See supra notes 17–30 and accompanying text (discussing Borchers’s and Solimine’s conclusions). Thus, the judicial affinity for modern conflicts systems may represent deeply-ingrained biases that will intensify the resistance to abandon malleable conflicts systems. A more charitable view is the suggestion made by Professor Solimine that the pro-recovery bias of modern conflicts systems may be a function of the pro-recovery nature of modern tort doctrine. Solimine, supra note 27, at 89.

120. See Luther L. McDougal, The Real Legacy of Babcock v. Jackson: Lex Fori Instead of Lexi Loci Delecti and Now It’s Time for a Real Choice-of-Law Revolution, 56 ALB. L. REV. 795, 802 (1993) (“Lex fori applies unless the courts decide to employ an escape pattern.”); Michael J. Wincop & Mary Keyes, The Market Tort in Private International Law, 19 NW. J. INT’L L. & BUS. 215, 234 (1999) (discussing the use of escape devices by English and Australian courts).

121. Whitten, Curing Conflicts Deficiencies, supra note 18, at 285–87. 122. Id. at 287–91. 123. Id. at 291–92. 124. Id. at 293–96. 125. See 28 U.S.C. § 1257(a) (1994) (providing for review of decisions of the highest state court “in which a

decision could be had” by writ of certiorari when federal issues are involved in the case). 126. See supra text accompanying notes 96–113 (discussing the constitutional limits on state choice-of-law

doctrine under the Full Faith and Credit and the Due Process Clauses of the Fourteenth Amendment). 127. The Court has the power to review decisions of a federal court of appeals in any kind of case, whether

or not a federal question is involved. See 28 U.S.C. § 1254 (1994) (providing for review of court of appeals opinions by writ of certiorari and certification). This gives the Court supervisory power to review court of appeals opinions on state choice-of-law doctrine in diversity cases in which state law provides the rule of decision. See 28 U.S.C. § 1332 (1994 & Supp. V 1999) (providing for subject-matter jurisdiction in U.S. district courts over civil actions between, inter alia, citizens of different states and between citizens of a state and citizens or subjects of foreign states); id. § 1652 (1994) (providing that state law shall provide the rule of decision when the Constitution, treaties, or statutes of the United States do not, i.e., in cases in which state law applies). However, since the case of Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941), the federal courts have not had the authority to apply conflict-of-laws doctrine independent of state law in diversity actions, but must apply state conflicts law in such actions. Klaxon thus effectively removed any power of the federal courts to influence the development of conflict-of-laws systems that do not already exist in the state courts. But see Boardman Petroleum, Inc. v. Federated Mut. Ins. Co., 135 F.3d 750 (11th Cir. 1998) (applying an independent federal conflict-of-laws approach to solve a problem in which the Klaxon rule, as elaborated in the Van Dusen and Ferens cases, discussed supra text accompanying notes 30–41, could not solve). Klaxon and Boardman are discussed in MCDOUGAL ET AL., supra note 15, § 59, and TEPLY & WHITTEN, supra note 15, at 406–08, 411–12.


and multinational litigation are to be coherently addressed, there is no substitute for some central authority to ensure uniformity in the determination of the applicable law. However, given the difficult nature of such problems and the diverse substantive political interests that will seek to influence Congress in framing the solutions, Congress could only take steps toward national answers to conflicts and related problems in a piecemeal fashion over a significant period of time. If national solutions to multistate and multinational litigation are thus to “evolve,” the current conflicts chaos in the states will continue unless a national “default” rule can be devised that eliminates the chaos while preserving the most important aspects of our federal system.

If Congress has the constitutional power to require the states to follow a lex fori system in the gaps left by piecemeal federal legislation to control conflicts, forum selection, and judgment enforcement rules, there may be a chance of eliminating the conflicts chaos that now besets multistate and multinational litigation in the United States while preserving federalism values. A lex fori system without loopholes would, as discussed in the preceding section, eliminate the judicial dishonesty and incompetence that exist in the application of modern conflicts systems.128 The universal application of lex fori systems within the gaps left by federal conflicts law would also eliminate the need for briefing and argument of conflicts questions as well as the need for lengthy conflicts opinions by courts. The courts of each state could simply apply forum substantive and procedural law in every case in which an independent, valid federal resolution of the conflicts question had not occurred.

This type of system would also preserve the most important values of the federal system. By requiring the states to follow a lex fori system, Congress would not be usurping important state prerogatives. Rather, Congress would, in effect, be commanding the states to follow their own substantive law in cases in which it would be constitutional for them to do so. Thus, the states would be vindicating the substantive values and policies embodied in their non-conflicts laws in each case in which Congress does not enact (1) a national substantive rule to control the action or (2) a national, uniform conflict-of-laws rule that

128. Judicial dishonesty would also be eliminated in those states that follow the traditional vested-rights system of conflict-of-laws, but whose judiciaries manipulate the systems through the use of escape devices such as the public policy exception. Given the empirical work done by Dean Borchers and Professor Solimine, one might think that courts applying the vested-rights system today do not engage in such manipulation, since that work tends to indicate that a greater degree of neutrality in the choice-of-law process exists in contemporary vested-rights systems than in modern conflicts systems. See supra text accompanying notes 18–19, 28–30 (discussing the conclusions drawn by Dean Borchers and Professor Solimine about the relative evenhandedness of the vested-rights system in comparison with the modern conflicts systems). However, it is clear that at least in some cases, courts following the vested-rights approach today do engage in manipulation. For example, in Alexander v. General Motors Corp., 478 S.E.2d 123 (Ga. 1996), the plaintiff sued General Motors in a Georgia state court for injuries received in an accident in a General Motors vehicle in Virginia. The plaintiff sued on a strict liability theory, even though Virginia required proof of negligence. Georgia follows the vested-rights approach, which would seem to require that Virginia substantive law be applied because Virginia was the place of the injury. The lower Georgia courts reached exactly this result and dismissed the plaintiff’s strict liability claims. The Georgia Supreme Court reversed, holding that the public policy exception to the lex loci delicti rule required the application of Georgia strict liability law, because the Virginia substantive rule was radically dissimilar to the Georgia rule and violated the strong public policy of Georgia as reflected in a Georgia statute. This conclusion was either grossly manipulative or deeply ignorant of how the vested-rights system operates. When considering whether to entertain a claim that has been created by the law of another state, a court applying the traditional system can refuse to enforce the claim if it violates the strong public policy of the forum, but the public policy exception does not permit the substitution of the forum’s law for the (unenforceable) claim. See RESTATEMENT OF CONFLICT OF LAWS § 612 (1934) (“No action can be maintained upon a cause of action created in another state the enforcement of which is contrary to the strong public policy of the forum.”). Indeed, such a result is directly contrary to the entire theory of the vested-rights system, which is that, given the occurrence of a “wrong” within the territory of a state, a cause of action is either created by that state or not; a cause of action cannot be created by the law of a state within which a “wrong” did not occur. See id. §§ 384(1)–(2) (“If a cause of action in tort is created at the place of wrong, a cause of action will be recognized in other states. If no cause of action is created at the place of wrong, no recovery in tort can be had in any other state.”).


commands the application of non-forum law. Assuming that Congress would enact national substantive or conflicts rules for multistate and multinational transactions only in situations in which the national interest is most strongly implicated, this legislation would leave the substantive law of each forum to govern all other cases. The only objection that the states might have is that Congress would be usurping the states’ traditional authority to choose non-forum law to govern some multistate and multinational cases of lesser national importance. This federalism objection hardly seems a weighty one, given that Congress would be telling the states—or, more accurately, the state judiciaries—to enforce their own substantive law and policy rather than that of another state.129 In addition, application of forum law is what the states already do in most cases under modern conflicts systems.130

Moreover, if Congress can command the application of forum law in the absence of federal statutory directions to the contrary, it may be possible to regulate conflict-of-laws issues in multistate and multinational cases in an indirect manner through forum restrictions and judgment-enforcement rules. Allocating regulatory power among the states through uniform national choice-of-law rules is difficult for the same reason that achieving uniformity in choice-of-law approaches among the states is difficult. Arriving at a proper choice-of-law methodology has eluded the best minds of our profession and promises to continue to do so. Therefore, while some success might be expected in federalizing choice-of-law rules as applied to isolated issues, no broad-based revolution in conflicts is likely to occur at the federal level.131 It may be, however, that congressional action to restrict forum access and to condition judgment enforcement would be more successful. I have argued elsewhere that Congress possesses the constitutional power under the Full Faith and Credit Clause and Article III of the Constitution to enact statutes providing for the circumstances in which injunctions against suit (and counter-injunctions) would be permissible in multistate cases in state and federal courts.132 The implied congressional power over foreign relations would arguably provide the same kind of authority with regard to multinational actions.133

129. It might be objected that other states that would benefit from the application of non-forum law under a forum’s conflict-of-laws system might object to a command by Congress that would result in the application of forum law instead. In the first place, it must be recognized that even under a congressional command, a state could not apply its law in a case in which it lacked contacts sufficient to satisfy the Constitution. See supra text accompanying notes 96–113 (discussing the contemporary constitutional limits on state choice of law). Although the Full Faith and Credit Clause would presumably constitute no obstacle to an exercise of congressional power to direct the application of forum law, see infra notes 143–51, the Due Process Clause of the Fifth Amendment might impose restrictions on the power of Congress to order the application of forum law that is similar or identical to those currently imposed on state power under the Due Process Clause of the Fourteenth Amendment. In the area of personal jurisdiction, the courts are developing Fifth Amendment due process limitations on federal jurisdiction that parallel those imposed on state courts under the Due Process Clause of the Fourteenth Amendment. See MCDOUGAL ET AL., supra note 15, § 31; TEPLY & WHITTEN, supra note 15, at 299–303 (both discussing the evolution of Fifth Amendment Due Process Clause limits on federal long-arm jurisdiction that parallel Fourteenth Amendment Due Process Clause limitations on state-court jurisdiction). Therefore, there may be “significant contacts” limits on the power of Congress to mandate the application of forum law under the Fifth Amendment that parallel those today enforced on the states under the Due Process Clause of the Fourteenth Amendment. In addition, it should be noted that, as pointed out below, the strong pro-forum law tendencies of modern conflicts systems tend to result in the disregard of non-forum law in many cases already. See supra text accompanying notes 22, 29. This would also diminish the insult that would be inflicted on non-forum courts by a congressional lex fori command.

130. See supra text accompanying notes 22, 29 (discussing the empirical findings of Dean Borchers and Professor Solimine that modern conflicts systems tend to result in the application of forum law).

131. See Whitten, Curing Conflicts Deficiencies, supra note 18, at 287–88 (arguing that lack of consensus about the proper approach to conflicts problems will thwart any comprehensive national solution to choice-of-law problems).

132. The Full Faith and Credit Clause is the source of power that Congress possesses for such legislation directed to the state courts, while Article III and the Necessary and Proper Clause is the source of power for federal courts. See id. at 291–92.

133. See LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 16–22, 70–72 (2d ed. 1996) (discussing the unenumerated foreign affairs power of Congress). The implied power of Congress over foreign affairs is


Other kinds of forum restriction rules may also be possible.134 In addition, the Full Faith and Credit Clause provides ample power for Congress to mandate the enforcement of constitutionally rendered judgments of state courts and to condition the enforcement of state judgments in other states on the presence of appropriate connections between the forum, the parties, and the events giving rise to suit.135 Thus, adequate constitutional power exists to allow Congress to regulate forum selection per se.136 It may also be possible to achieve greater agreement on the principles that should govern the location of litigation than to obtain agreement on principles that govern choice of law.137

Assuming that a nationally-mandated lex fori rule would be a valuable complement to other federal rules governing choice of law, forum selection, and judgment enforcement in multistate and multinational cases, is it within the power of Congress to provide for such a rule? At least in cases involving multistate and multinational commerce, it seems likely that

necessary to support other types of important legislation currently being suggested in the area of multinational litigation. For example, the American Law Institute is in the process of framing enabling legislation to regulate the reception and enforcement of foreign nation judgments in the United States. See AMERICAN. LAW INSTITUTE., INTERNATIONAL JURISDICTION AND JUDGMENTS PROJECT, REPORT, xi, 18–19 (Apr. 14, 2000) (proposing federal implementing legislation to govern the reception and enforcement of foreign nation judgments). Although Congress possesses enumerated powers that would support such legislation in some of its applications, such as the foreign commerce power, see U.S. CONST. art. I, § 8, cl. 3, the implied power over foreign affairs might be necessary to sustain application of the legislation to all cases. For example, assume that two Germans get in a fight in a bar in Berlin and one sues the other in a German court for battery and recovers a judgment. If the judgment creditor wishes to enforce the judgment in the United States, it is questionable whether the foreign commerce power would allow Congress to displace state law governing the judgment’s enforcement, since Congress would lack the power to regulate the underlying events giving rise to suit under that power. The implied power over foreign relations, however, would seem to be broad enough to allow Congress to provide for enforcement of any foreign nation’s judgment in the United States.

134. See Whitten, Curing Conflicts Deficiencies, supra note 18, at 292. 135. See id. at 293–96 (discussing the power of Congress to provide for enforcement rules and rules

conditioning enforcement of judgments on the presence of appropriate factors). Article III would, again, be the appropriate source of authority for Congress to use in enacting similar rules for the federal courts, and the implied power over foreign relations would constitute one appropriate source of authority for such rules in multinational cases. See supra notes 132–33 and accompanying text (discussing these sources of congressional power).

136. There are models that Congress has available for use in formulating rules of forum selection so that it need not start entirely from scratch. For example, in 1991, the National Conference of Commissioners on Uniform State Laws approved the Uniform Transfer of Litigation Act, 14 U.L.A. 222 (Supp. 2001), which would, if adopted by the states, permit transfers between state courts in different states. The Act might be a suitable model for Congress to use in formulating a federal transfer statute applicable to state-court litigation in multistate and multinational cases. Although transfer under the existing version of the Act is discretionary, see id. § 104, Congress might make it mandatory on an appropriate factual showing. See MCDOUGAL ET AL., supra note 15, § 47 (discussing the Act); TEPLY & WHITTEN, supra note 15, at 360–63 (describing the provisions of the Act, including its choice-of-law provisons); Thomas D. Rowe, Jr., Jurisdictional and Transfer Proposals for Complex Litigation, 10 REV. LITIG. 325, 354–58 (1991). Apart from choice-of-law consequences, the empirical research on federal transfer of venue by Professors Clermont and Eisenberg indicates that an interstate transfer provision would advance us considerably toward the goal of achieving more balanced and fairer results in multistate litigation. See supra text accompanying notes 33–41 (discussing the Clermont-Eisenberg research). The attainment of similar results in international litigation would be more complicated and might have to be achieved by treaty, although litigation providing for a stay or dismissal of proceedings based on reciprocity in foreign courts might suffice in certain instances.

137. At least in the area of judgment enforcement, Congress has been able successfully to act in recent times to provide for the enforcement of judgments embodying child-custody determinations, see 28 U.S.C. § 1738A (1994 & Supp. V 1999), and child support awards, see id. § 1738B (1994 & Supp. V 1999), and restrictions on the enforcement of judgments relating to same-sex marriage, see id. § 1738C (Supp. V 1999). Injunctions and counter-injunctions against suit are a troublesome but relatively rare phenomenon as to which there is arguably already some consensus in the current case law. See MCDOUGAL ET AL., supra note 15, § 49 (discussing injunctions against suit); TEPLY & WHITTEN, supra note 15, at 369–72 (discussing the restrictive and liberal standards for granting injunctions against foreign litigation and arguing that the courts may be administering the standards in similar ways).


the interstate and foreign commerce power138 would allow Congress to mandate the application of forum law in the gaps left by other federal substantive or conflicts rules. Although the Supreme Court has begun to confine some of the most expansive interpretations of the Commerce Clause in recent years,139 it has left the essence of Congress’s power to regulate multistate commercial transactions intact, and there is no reason to believe that the power to regulate multinational transactions is any less broad. The existing Supreme Court decisions under the Commerce Clause are arguably broad enough to allow Congress to supply a federal rule of decision for any kind of interstate or international commercial activity.140 It should present no problem if, instead of enacting an independent federal rule of decision, Congress chooses to regulate interstate activity by directing states to apply their own law. It is settled that Congress, acting within its constitutionally conferred powers, may regulate an area by enacting legislation that calls for the application of state law rather than providing an independent federal rule of decision to regulate the area in question.141

A potentially broader source of power, but one applicable only to multinational transactions, is the implied power of Congress over foreign affairs, discussed earlier.142 Just as Congress may adopt state rules of decision in other cases within its explicitly delegated powers, there seems no obstacle to the adoption of state law to govern multinational transactions under Congress’s implied power to regulate foreign relations, subject always to appropriate due process limits. This fact will be all the more true if a congressional directive to apply forum law is part of a comprehensive regulatory scheme that addresses whether foreign or domestic law should govern multinational cases.

Superficially, it may seem more problematic whether Congress may use the Full Faith and Credit Clause to provide a choice-of-law rule that directs states to apply their own local law in the absence of federal choice-of-law guidance to the contrary. The Full Faith and Credit Clause gives Congress the authority to prescribe the effect that state public acts,

138. See U.S. CONST. art. I, § 8, cl. 3 (providing Congress with the power to regulate commerce with foreign

nations, among the several states, and with the Indian tribes). 139. See United States v. Morrison, 120 S. Ct. 1740, 1751 (2000) (holding the federal Violence Against

Women Act beyond the power of Congress under the Commerce Clause on the grounds that gender-motivated crimes of violence are not economic activity); United States v. Lopez, 514 U.S. 549, 558–59, 561–62 (1995) (holding the federal Gun-Free School Zones Act beyond the power of Congress under the Commerce Clause because no economic activity was involved, but recognizing the legitimacy of Congress regulating the use of channels of interstate commerce, the instrumentalities of interstate commerce, and activities that substantially affect interstate commerce, and also recognizing the power of Congress to provide for a jurisdictional element in a statute that would ensure a case-by-case inquiry that a particular activity in fact affects interstate commerce); see also 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5.4 (3d ed. 2000) (reading Lopez as establishing that intrastate activity must be commercial in character to justify regulation under the Commerce Clause); Note, The Supreme Court 1994 Term: Leading Cases, 109 HARV. L. REV. 111 (1995) (discussing Lopez).

140. See sources cited supra note 139. 141. In the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1994 & Supp. V 1999), Congress provided for

recovery for certain torts committed by officers or employees of the United States while acting within the scope of their official authority “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Id. Thus, Congress not only provided for the application of state law to govern the liabilities of the United States that might instead have been regulated by an independent federal liability rule, it also provided an independent federal conflict-of-laws rule to govern which state’s law should be applied. In Richards v. United States, 369 U.S. 1 (1962), the Supreme Court held that the reference to the law of the place where the act or omission occurred should be read to include not only the substantive law of the state of the act or omission, but also the conflict-of-laws rules of that state, with the result in the particular case that the law of the state of the injury was applied to govern the damages limit applicable to the tort because that was the conflicts rule of the state where the act or omission occurred. For a discussion and criticism of the law that has developed under the Richards rule, see James A. Shapiro, Choice of Law Under the Federal Tort Claims Act: Richards and Renvoi Revisited, 70 N.C. L. REV. 641 (1992).

142. See supra note 133 and accompanying text (discussing this power).


records, and judicial proceedings have in other states.143 It does not explicitly give Congress the power to declare that the states must apply their own laws instead of the laws of other states. Nevertheless, Congress has enacted implementing legislation providing that states need not enforce certain kinds of public acts of other states,144 and it has directed that the states need not enforce certain judgments of other states unless particular conditions are met.145 Using these acts as analogies, Congress might enact implementing legislation designed to encourage the states to apply their own law rather than the law of another state by directing that they need not enforce the public acts of other states if they choose not to do so. Similarly, Congress might also enact legislation conditioning the application of non-forum statutes on the presence or absence of certain criteria.146

In addition, Congress has also enacted implementing legislation under the Full Faith and Credit Clause directly requiring a forum state to apply its own laws under certain circumstances. This legislation is arguably valid as a necessary and proper incident of a larger statutory scheme in which Congress prescribed the effect that should be given to non-forum state judgments. For example, in the Full Faith and Credit for Child Support Orders Act (FFCCSOA), Congress enacted a choice-of-law provision providing that “[i]n a proceeding to establish, modify, or enforce a child support order, the forum [s]tate’s law shall apply except as provided [subsequently in the statute].”147 Even though it requires the application of forum law, this provision is arguably valid as a necessary and proper mechanism for prescribing the effect of other states’ child support orders, an effect that is regulated extensively by other portions of the same statute. In addition, the FFCCSOA provides, as an exception to the rule just stated, that “[i]n an action to enforce arrears under a child support order, a court shall apply the statute of limitation of the forum State or the State of the court that issued the order, whichever statute provides the longer period of limitation.”148 This provision directs the state to apply forum limitations law when it

143. The clause states in full: “Full Faith and Credit shall be given in each State to the public Acts, Records,

and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” U.S. CONST. art IV, § 1.

144. In the Defense of Marriage Act, 28 U.S.C. § 1738C (Supp. V 1999), Congress provided that “[n]o State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . . .” Id. This statute has been bitterly attacked as unconstitutional before Congress and in numerous law review articles. One of the grounds of attack is that the Full Faith and Credit Clause only authorizes Congress to declare the effect of state public acts, not to declare that they may be given no effect. This argument is, to put it mildly, inane. It is a political, not a legal, argument. As Professor McConnell has observed, “to ‘prescribe the effect’ of something is to determine what effect it will have.” Ralph U. Whitten, The Original Understanding of the Full Faith and Credit Clause and the Defense of Marriage Act, 32 CREIGHTON L. REV. 255, 381 n.424 (1998) (citing Defense of Marriage Act: Hearing on S. 1740 Before the Senate Comm. on the Judiciary, 104th Cong, 2d Sess. 42, 57 (1996) (statement of Prof. Michael W. McConnell)). For a full discussion of the attacks on the statute as well as other dubious interpretations of the Full Faith and Credit Clause, see id. at 346–91.

145. The language in the Full Faith and Credit Clause allowing Congress to declare the effect that state public acts shall have in other states parallels the language in the clause allowing Congress to declare the effect of state judicial proceedings in other states. Thus, in determining the power of Congress to prescribe the effect of state statutes in other states, we are able to extrapolate from implementing statutes prescribing the effect that state judgments may receive in other states. In the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (1994 & Supp. V 1999), Congress required that state custody orders be enforced by other states, unless certain conditions were met, in which case other states had power to modify the custody orders. See id. § 1738A(f), (g) (prescribing when a state may modify a custody determination of another state and restricting the power of a state to take jurisdiction of a custody or visitation proceeding when another state is exercising jurisdiction consistently with other provisions of the statute). The validity of this statute has never been questioned. Thus, we may safely extrapolate from it that Congress might also place conditions on the enforcement of state statutes in other states.

146. See supra notes 133, 143–44 (discussing the basis of this power). 147. 28 U.S.C. § 1738B(h)(1) (1994 & Supp. V 1999). 148. Id. § 1738B(h)(3).


provides a longer period of limitations than the law of the state whose child support order is being enforced. Again, however, this command is arguably a necessary and proper incident of the operation of the entire statutory scheme. By assuring that the longer of the potentially applicable state statutes of limitation applies, the FFCCSOA maximizes the ability of the judgment holder to enforce a child support order of a non-forum state. Thus, as long as a congressional command that forum law apply is an appropriate component of a general statutory scheme dealing with the effect of other states’ statutes or judgments in the forum, the command should be valid under the existing statutory analogies.149

Practically speaking, this means that the only kind of lex fori command that would be suspect under the Full Faith and Credit Clause would be an isolated command that mandates the application of forum law detached from any other declaration requiring the forum to give effect to the statutes or judgments of other states. For example, if Congress simply enacted a statute that ordered the forum to apply its own statute of limitations to any action brought in the forum’s courts, it would be difficult to justify the command under the power given to Congress to declare the effect that state public acts, records, and judicial proceedings would have in other states. On the other hand, if, as in the case of the FFCCSOA,150 Congress orders the forum to apply its own statute of limitations as an appropriate part of a broader regulation of the effect to be given to the public acts or judicial proceedings of other states, the power conferred in the Full Faith and Credit Clause combined with the Necessary and Proper Clause of Article I, Section 8 of the Constitution151 will validate the mandate.

Other sources of congressional authority may, when combined with the Necessary and Proper Clause of Article I, be available in specific subject areas to supplement the powers discussed above. However, even in the absence of these additional powers, the congressional authority previously discussed would provide a significant source of power to mandate the application of forum law in many cases. As part of a general body of federal rules regulating choice of law, forum selection, and judgment enforcement, a lex fori mandate is an attractive alternative to the existing conflicts chaos.

V. CONCLUSION

In the conclusion of his 1989 article,152 Professor Juenger, after summarizing the role of conflict-of-laws in promoting forum shopping,153 asked the following question:

149. One additional uncertainty about the Full Faith and Credit Clause may also narrow its application. The

clause requires full faith and credit to state “public acts,” but does not explicitly mention state common-law rules. It is not clear from the historical evidence whether state common-law rules were intended to be included within the scope of the clause. See Ralph U. Whitten, The Constitutional Limitations on State Choice of Law: Full Faith and Credit, 12 MEMPHIS ST. U. L. REV. 1, 56–60 (1981). If they are not within the scope of the clause, the power of Congress would be limited accordingly to declaring forum law applicable as part of a larger statutory scheme declaring the effect that other states’ statutes should have in the forum. However, even under such a restriction, it is not unimaginable that Congress might be held to have the power to declare forum common law rules applicable as a necessary and proper incident of a general statutory scheme dealing with the effect of other states’ statutes in the forum. For arguments that state common-law rules are or should be included in the clause, see id. at 57–58, 66–68.

150. See supra text accompanying notes 147–49. 151. See U.S. CONST. art. I, § 8, cl. 18 (granting Congress the power “[t]o make all Laws which shall be

necessary and proper for carrying into Execution the foregoing Powers [found in Article I, section 8], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”). This is, of course, subject to any Fifth Amendment Due Process Clause limits that are imposed on the power of Congress by analogy to those existing on state power under the Due Process Clause of the Fourteenth Amendment. See supra note 129 (discussing potential Fifth Amendment limits on Congress’s power).

152. Juenger, Forum Shopping, supra note 1, at 570–74.


If forum shopping is promoted, in large measure, by reasons other than the diversity of substantive and choice-of-law rules, what is the purpose of the conflict of laws? It cannot ever attain the illusory goal of uniform decisions. Nor can the conflict of laws . . . effectively vindicate “governmental interests,” for those interests as well are at the forum shopper’s mercy. Of course, one possible objective remains for our discipline: like all others, it could serve the ends of substantial justice. If so, we need rules and approaches that differ from those that are currently in vogue. Watching forum shoppers ply their trade should make us think about the possibility of such a reorientation. Only to the extent that we can design choice-of-law rules that are attuned to the exigencies of interstate and international justice, can forum shopping ever become obsolete.154

Professor Juenger did not explain what he meant by “substantial justice” in this passage. However, in other writing, he is on record as favoring a “substantive law” approach to multistate and multinational cases.155 Under a substantive law approach, courts would formulate special substantive rules for multistate and multinational cases rather than choose between the law of the potentially concerned jurisdictions.156 It seems clear, however, that whatever “substantial justice” meant to Professor Juenger, it is no more feasible to expect courts to formulate adequate multistate or multinational rules on a case-by-case, state-by-state basis than it is to expect them to develop any other kind of adequate choice-of-law approach.157

Essentially, I have advocated in this article that we abandon all attempts to develop a solution to multistate and multinational conflicts under the method that we have been using in the past. It is apparent that an adequate solution to the problems that we face in choice-of-law cases cannot be achieved on a case-by-case, state-by-state basis without oversight from a central authority that is empowered to determine when uniformity is desirable and enforce it when desirable.158 Professor Juenger was certainly correct that the goal of uniformity is “illusory”159 when we try to achieve it in this way. Any reorientation of the conflicts enterprise that does not include a significant dose of national direction by Congress and oversight by the U.S. Supreme Court cannot hope to be effective. However, by abandoning the existing state-by-state approach and aiming at federal control of conflicts matters, a new and more effective arsenal of weapons will become available.

153. Id. at 572–74. 154. Id. at 574. 155. See JUENGER, supra note 48, at 164–208, 222–37 (discussing historical examples of the substantive

law approach, advocating the approach today, and arguing that it actually pervades European and American conflicts law because of the widespread use of cover-up devices, soft connecting factors, and result selectivity). Others have also advocated a substantive law approach to multistate and multinational cases. See Luther L. McDougal III, Choice of Law: Prologue to a Viable Interest-Analysis Theory, 51 TUL. L. REV. 207 (1977) (formulating a complex system for deciding choice-of-law cases that may require a court to construct a trans-state law that will appropriately accommodate all of the interests at stake in the action); see also Luther L. McDougal III, Toward Application of the Best Rule of Law in Choice of Law Cases, 35 MERCER L. REV. 483 (1984); Aaron D. Twerski & Renee G. Mayer, Toward a Pragmatic Solution of Choice-of-Law Problems at the Interface of Substance and Procedure, 74 NW. U. L. REV. 781 (1979); Arthur T. von Mehren, Special Substantive Rules for Multistate Problems: Their Role and Significance in Contemporary Choice of Law Methodology, 88 HARV. L. REV. 347 (1974).

156. See authorities cited and discussed supra note 155. 157. See Whitten, Curing Conflicts Deficiencies, supra note 18, at 276–77 (discussing why the substantive

law approach is unlikely to work if it must be developed on a state-by-state basis). 158. See id. at 267–77 (discussing the inadequacies in the existing approaches, including lex fori, when

pursued on a state-by-state basis). 159. Juenger, Forum Shopping, supra note 1, at 574.


Through national legislation, Congress as the supreme national policymaker can determine when national, uniform substantive rules are desirable.160 This determination will also place the U.S. Supreme Court in a position to assure uniformity in the application of the federal, multistate substantive rules through review of state and federal court decisions in actual cases. “Substantial justice” will thereby be achieved in the only fashion that it realistically can be—through the ordinary interplay of private interests that produces national legislation in any other subject. Of potentially greater significance than national substantive rules is the power of Congress to control forum selection in multistate and multinational cases directly. Congress has ample power to address issues of forum selection and judgment enforcement in both multistate and multinational cases more broadly than it has in the past. Over time, experience with national rules that restrict forum access may produce logical and convenient principles governing the location of suit in multistate and multinational civil actions in both state and federal courts. We cannot realistically expect to develop such principles in the present context in which the availability of state fora depends only on restrictions on state long-arm jurisdiction imposed by the U.S. Supreme Court through the Due Process Clause of the Fourteenth Amendment.161 In addition, more elaborate national judgment-enforcement rules than exist could also play an important part in forum access in the future. By conditioning the enforcement of state judgments in other states on the presence of appropriate criteria, federal legislation under the Full Faith and Credit Clause can be an important complement to other federal rules directly governing forum access.162

If Congress were to undertake the task of formulating the kinds of rules, discussed above, a default lex fori rule could play a critical role in the operation of the resulting national scheme. The function of a default lex fori rule would be, as extensively as possible, to eradicate existing state conflict-of-laws doctrine and substitute application of the forum’s law in any situation in which Congress does not choose to create (1) federal law to govern multistate or multinational litigation, or (2) a national conflict-of-laws rule to determine which state or nation’s law should be applied to such litigation. The lex fori mandate could operate in any case in which the Constitution would not be violated by the application of the forum’s law. However, the ideal scheme would include forum selection and judgment-enforcement rules that would restrict forum availability and, in the process, would assure that any forum in which multistate and multinational litigation occurs will possess sufficient

160. See Whitten, Curing Conflicts Deficiencies, supra note 18, at 285–87 (discussing examples of uniform

national substantive rules that Congress might constitutionally develop in multistate cases). 161. There is widespread dissatisfaction with the state of the current doctrine developed by the Court under

the Due Process Clause to restrict state-court jurisdiction under the rubric of the “minimum contacts test.” Dean Borchers has argued that the Supreme Court should get out of the business of using the Due Process Clause to restrict state court jurisdiction. See Patrick J. Borchers, The Death of the Constitutional Law of Personal Jurisdiction: From Pennoyer to Burnham and Back Again, 24 U.C. DAVIS L. REV. 19 (1990); see also Patrick J. Borchers, Jurisdictional Pragmatism: International Shoe’s Half Buried Legacy, 28 U.C. DAVIS L. REV. 561 (1995). Professor Seidelson has argued that the Due Process Clause should only control problems of service-of-process and notice and should not require any connection between a nonresident defendant and the forum state. See David E. Seidelson, Jurisdiction Over Nonresident Defendants: Reprise, 4 WIDENER J. PUB. L. 199 (1994); see also David E. Seidelson, Jurisdiction Over Nonresident Defendants: Beyond “Minimum Contacts” and the Long-Arm Statutes, 6 DUQ. L. REV. 221 (1968). The Court’s performance in this area might be thought to refute the proposition stated in the text above, to the effect that review by the Supreme Court is necessary to achieve uniformity in the application of special substantive rules developed for multistate transactions. However, one must remember that the Court’s due process cases are entirely a product of its own ingenuity. In the case of uniform substantive rules for multistate transactions, Congress would have the initiative and the Court’s creative role would be subordinated accordingly. For a general examination of the Court’s personal jurisdiction cases, see TEPLY & WHITTEN, supra note 15, at 164–311. See generally MCDOUGAL ET AL., supra note 15, §§ 19–25.

162. See Whitten, Curing Conflicts Deficiencies, supra note 18, at 293–96 (discussing how conditioned judgment enforcement rules could be developed under the Full Faith and Credit Clause).


connections with the parties or events giving rise to suit to satisfy any constitutional limitations on the application of forum law.

The elimination of state conflicts doctrine would produce substantial benefits without creating significant costs. The existing chaos in U.S. conflict of laws would end. The numerous competing conflicts systems, and mixtures of different systems, with their attendant complexity and costs of administration would cease to exist. In their stead would exist a basic lex fori scheme supplemented by federal rules for multistate and multinational cases, including substantive rules, choice-of-law rules, forum selection rules, and judgment-enforcement rules. The current need for litigants and their lawyers to contend with amorphous conflict-of-laws questions would, therefore, no longer exist. Nor would courts need to engage in complicated choice-of-law inquiries or write convoluted opinions justifying their choice of the applicable law. Consequently, the dishonesty and incompetence that currently characterize the administration of U.S. conflict-of-laws schemes would also disappear.

In addition, the proper policymaking role would be located where it belongs: Congress and the state legislatures. Congress would determine those areas in which national substantive rules for multistate and multinational litigation are important and those in which the laws of the individual states should continue to control. It seems likely that Congress will leave state law to govern many areas, at least initially, and that federal law will control only those issues that depend on uniformity. However, it is also predicable that Congress will, through forum selection and judgment-enforcement rules, seek to rationalize and simplify the kinds of connections that ought to exist between a state, the litigants, and the events giving rise to suit. The aim should be to assure that multistate and multinational litigation will be centered in fora that will be logical places in which to litigate from the standpoint of the convenience of the litigants and the (forum) law that will govern the substantive aspects of the suit. Over time, of course, federal law may come to govern more issues, as experience reveals the areas in which national substantive and choice-of-law rules can make a valuable contribution to the resolution of multistate and multinational litigation.

Finally, as the empirical and other studies discussed in Section IIB indicate, a national default lex fori rule would also correspond largely to the results that now occur under existing conflicts systems, albeit without the costs of those systems. Because the states most often apply forum law under the existing systems, a lex fori rule would not change the results in a majority of the decided cases. As the discussion in Section II has also indicated, under current practice, modern conflicts systems only partially contribute to forum shopping, with forum-shopping incentives being provided largely by other litigation factors. This practice may be expected to continue under a lex fori system. Because the natural (statistical) expectation of litigants and their lawyers will be that forum law will be applied, it is unlikely that a national default lex fori rule will significantly increase forum shopping. Certainly, however, if a national lex fori rule is a component of a broader scheme of national rules that includes rules restricting forum selection, forum shopping should not only not increase, but should diminish significantly.

In summary, I recommend that we give up our illusory quest for the holy grail in state conflict-of-laws doctrine. We should have recognized long ago that this quest is counterproductive and impossible. Instead, we should swallow our pride and admit that we as academics have been instrumental in creating the conflicts chaos about which we so often complain. There are no obvious avenues of relief other than a national direction of conflicts, supported by a lex fori foundation.

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U.S. Conflict-of-Laws Doctrine and Forum Shopping .... Conflict-of-Laws Doctrine and Forum Shopping, International and Domestic ... conflicts law that were ... the applicable law in