Equal Protection Limitations on Choice of Law Decisions

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Equal Protection Limitations on Choice of Law Decisions Equal Protection Limitations on Choice of Law Decisions

Anne-Marie Witters

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EQUAL PROTECTION LIMITATIONS ON

CHOICE OF LAW DECISIONS

by

ANNE-MARIE WITTERS

A Thesis Submitted to the Graduate Faculty

of the University of Georgia in Partial Fulfillment

of the

Requirements for the Degree

Master of Law

ATHENS, GEORGIA

EQUAL PROTECTION LIMITATIONS ON

CHOICE OF LAW DECISIONS

by

ANNE-MARIE WITTERS

Approved:

f?- ...).r Professor

- ~Llistw tN' , .Chairman, Reading Committee

Approved:

c2tte D~

\a:J-~1Date

Date: /2 - 3-re7I

Date : I ~ - ., - I (1~ 1

TABLE OF CONTENTS

EQUAL PROTECTION LIMITATIONS ON CHOICE OF LAW DECISIONSPAGE

General Introduction 1

Part I. The Equal Protection Clause of the United StatesConstitution

Chapter A: Introduction to Equal Protection 4Notes for Chapter A 8

Chapter B. The Intent of the Framers 9Notes for Chapter B 12

Chapter C. Judicial Supervision of LegislativeClassifications 14Notes for Chapter C 18

Chapter D. Application of Classifications Under theEqual Protection Clause 20Notes for Chapter D 22

Chapter E. Discrimination against Non-Residents 23Notes for Chapter E 26

Chapter F. The Right to Interstate Travel 27Notes for Chapter F 29

Chapter G. Conclusion: Towards a Theory ofConstitutional Equality 30Notes for Conclusion 34

Part II. Equal Protection and Choice of LawChapter A. Introduction

Setting the Stage 35Notes for Chapter A 40

Chapter B. Revolution and Counterrevolution inChoice of Law 42Notes for Chapter B 49

Chapter C. Choice of Law and Constitutional Law 50Notes for Chapter C 55

Chapter D. Historical Overview of Federal Controlon Choice of Law 57Notes for Chapter D 62

Chapter E. Equal Protection Limitations on Choice ofLaw in Theory and Practice 64Notes for Chapter E 73

Chapter F. Conclusion 77Notes for Conclusion 80

iii

PART III. A Side Glance at the Common MarketChapter A. Introduction to the European Conflicts

System 81Notes for Chapter A 85

Chapter B. European Reaction to the "ConflictsRevolution" 87Notes for Chapter B 91

Chapter C. Limitations on European Conflicts Rules 93Notes for Chapter C 97

Chapter D. The Significance of Non-DiscriminationClauses with Respect to Choice of Law 99Notes for Chapter D 102

Chapter E. Conclusion 104General ConclusionBibliography

106

109

GENERAL INTRODUCTION

In this paper I intend to examine the influence of con-

stitutional equality principles on choice of law decisions in

the United States and Europe. Therefore, this analysis is an

exercise in constitutional law, conflict of laws and compara-tive law.

Part I is an inquiry into the origin, role and contem-

porary significance of an important part of the United States

Constitution and its guarantees of equality. However, I do

not intend to deal here exhaustively with all the aspects of

the non-discrimination clauses: my goal is to clarify the

implications of contemporary Fourteenth Amendment theory for

state autonomy in deciding conflict cases. Therefore, I will

concentrate on state discrimination against non-residents andaliens.

Under settled principles of judicial review, the Supreme

Court is empowered to define the obligations that anti-

discrimination principles impose upon the states. The court

has developed a multi-tiered approach whereby different tests

are used according to the degree of "suspectness" of legisla-

tive classifications. As we will see, non-residency, unlike

alienage, has not been held to be a "suspect classification"

and is thus not subject to strict Equal Protection scrutiny.

However, I will argue that the classifications that

I

2distinguish locals from out-of-staters are, in my opinion,

suspect and that they should, therefore, be subjected to the

highest scrutiny under the Equal Protection Clause.

In Part II, I will attempt to describe traditional and

modern choice of law methodologies in the United States. As

we will see the influence of the United States Constitution

in this area is mainly exercised through the limitations it

places on the power of the states to shape their own choice

of law rules. The measure of federal control by the Supreme

Court has varied from time to time and from field to field.

But so far, the Supreme Court has not invalidated a state's

choice of law decision on the basis of either antidiscrimina-tion provision.

I will argue that several modern theories, because of

their systematic preference for forum residents, violate the

Equal Protection Clause of the United States Constitution and

that it is time for the Supreme Court to control this ten-dency.

In Part III, I will make a brief comparative analysis of

the European conflicts system. I will point out the basic

differences between American and European choice of law

methodologies. The European reaction to the American

"Conflicts Resolution" and its influence on European choice

of law methodologies will be examined. Another interesting

question is whether the European Community has any impact on

choice of law decisions made by its Member States.

3

Finally, I will discuss the decisions of the German Con-

stitutional Court, establishing an interaction between con-

stitutional equality principles and choice of law rules.

PART I. THE EQUAL PROTECTION CLAUSE OF THE UNITED STATESCONSTITUTION

CHAPTER A

INTRODUCTION TO EQUAL PROTECTION

The first and basic step in Equal Protection analysis

must consist of looking at the concept of equality as such.

Equality is the only concept that tells us that dif-

ferent treatment of people does matter. It is the concept

that forces us to consider how society treats people in

relationship to one another. It forces the government to

justify inequalities that might otherwise go unnoticed orunremedied.1

We all implicitly have an idea of what "equality" means.

We know what equal and unequal mean by having learned since

childhood how to use them in countless spheres of everyday

life: Equality is the relationship of identity that exists

among two or more persons or things by reference to a given

standard of measure. The standard of measure may be specific

or implied. However, we tend to neglect what equality2means.

But, equality cannot be used as a talismanic incantation

to decide controversies. Therefore, it is necessary to ex-

amine the underlying substantive rights that conflict.3

Although it will not automatically resolve the con-

flicts, a knowledge of the history of the idea of equality4

5

may also be helpful in establishing a perspective within

which partial solutions may be achieved a little more'I 4eaSl y.

One of the roots of the idea of equality lies in the ex-

perience of the ancient Hebrews in their covenant with God.

Under the covenant, God governed through his law which was

binding on all and thus a moral guarantee to all of equal

justice.

To the Athenians of the Fifth Century Before Christ,

equality had much of the meaning which it possesses for us

today.5 Aristotle, building on the work of Plato said two

things about equality that have dominated Western thought

ever since: "Equality in morals means this: things that are

unalike should be treated unalike in proportion to their un-

alikeness. Equality and justice are synonymous: to be just

is to be equal, to be unjust is to be unequal."6

The Christian contributions to the idea of equality were

important and farreaching. St. Paul wrote to the Galatians:

"There is neither Jew nor Greek, there is neither bond nor

free, there is neither male nor female: for ye we are all

one in Christ Jesus."

It may be reassuring to many to discover how old

and pertinent the idea of equality is. It possessed a

considerable history before it received characteristic

statement in the great legal and political documents of the718th Century. The Declaration of Independence numbered

6

among its self-evident truths that "all men are createdequal."8

The drive to abolish slavery culminated in a civil war

and three amendments to the Constitution. One of these

amendments, the fourteenth, contains the one explicit

guarantee of equality that: "No State shall deny to any per-

son within its jurisdiction the equal protection of thelaws."9

In recent years the Equal Protection guarantee has be-

come the single most important concept in the Constitutionfor the protection of individual rights.

State regulations are commonly placed in one of three

categories for the purpose of Equal Protection analysis:

(1) Regulations affecting the exercise of"fundamental rights."

(2) Regulations classifying people on the basis ofcriteria that are constitutionally suspect.

(3) All remaining regulations.IO

An important factor, in determining how much further the

Supreme Court will go in enforcing rights under the Four-

teenth Amendment, is the opinion of its new Chief Justice in

this respect. Chief Justice Rehnquist has described the

Supreme Court's decisions, with the exception of those in-

volving classifications based on race, as an "endless

thinkering with legislative judgments, a series of

conclusions unsupported by any guiding principle. "12 His

scrupulously drafted dissents have proliferated in response

7

to the majority's propensity toward invalidating legislative1 'f' t' b d 'II ' , I' 13c aSSl lca lons ase on sex, 1 egltlmacy or a lenage.

The constitutional ideal of equality seems problematical14in two fundamental aspects:

(1) The fact that virtually all governmental actioninvolves the making of choices and the drawing oflines in ways that entail favoring some overothers. The Equal Protection clause then permitsthe judiciary to step in and trump the freedom ofthe political system to make these choices.

(2) The fact that the Equal Protection clause issupposed to play itself out in a universe in whichindividuals create inequalities themselves becauseof the pre-existing or background system ofindividual freedom.

At what point then, must the government or the judiciary, fl h' l't' ?15 f'lntervene to atten out t ese lnegua 1 lese Let us lrst

go back to the framers to examine the standards for judicial

review they had in mind while drafting the Fourteenth Amend-mente

8

NOTES TO CHAPTER A

1. Note, In Defense of Equality; A Reply to Prof. Wes-ten, 81 U. Mich L. Rev. 575 (1983).

2. Westen, To Lure the Tarantula from its Hole: AResponse, 83 Colum. L. Rev. 1186 (1983).

3. Note, supra note 1, at 575.

4. Knox, The Idea of Equality 27 (1959).

5. Abernethy, The Idea of Equality 16 (1959).

6. Westen, The Empty Idea of Equality, 95 Harv. L. Rev.537-596 (1982).

7. Abernethy, supra note 5, at 17.

8. The American Declaration of Independence, 4 July1776.

9. Baer, Equality Under the Constitution, Reclaimingthe Fourteenth Amendment 21 (1983).

10. Westen, supra note 6, at 537.

11. Wilkinson, The Supreme Court - Equal Protection -The Three Faces of Constitutional Equality, 61 Va. L. Rev.954 (1975).

12. Trimble v. Gordon, 430 U.S. 762, 777 (1977).

13. Note, Justice Rehnquist's Equal Protection Clause:An Interim Analysis, 63 Neb. L. Rev. 288-313 (1984).

14. Apart from the question whether the idea of equalityis empty or not. Westen, The Empty Idea of Equality, 95Harv. L. Rev. 537-596 (1982); Note, In Defense of Equality:A Reply to Prof. Westen, 81 U. Mich. L. Rev. 575 (1983).

15. Note, A Symposium on Equality and the Law, 9 Harv.J.L. & Publ. Pol. 1-123 (1986).

CHAPTER B

THE INTENT OF THE FRAMERS

To understand the text of the Fourteenth Amendment, a

9

constitutional historians that the Fourteenth Amendment had

The Civil War Amendments grew out of the conflict be-

These anti-

The evil sought

enforce the common law concerning access to public

against systematic private discrimination by refusing to

accommodations; common carriers and other community

its abolition was not to wait upon individual conversion; it

liberty and equality as primary arguments to overturn

slavery. 5 Slavery was still an ethical and moral evil but

to be redressed was the state's failure to protect blacks

b d b l't' I ' 6was to e roote out y po 1 1ca act1on.

cal and moral evils of slavery to a program which employed

institution of slavery. There exists strong agreement among

this period, an important reorientation of the abolitionist3movement took place from that of private conversion to

public action.4 The shift entailed a change from a program

slavery origins go back to the period of 1835-1838. During

, , .. , h . 1 21ts ma1n or1g1n 1n t e ant1-s avery movement.

which used equality and liberty as aides to attack the ethi-

tween the ideals of the Declaration of Independence and the

document written more than a century ago, it is necessary to

understand the period in which it was written. 1

10facilities for the benefit of blacks and whites alike the

state's failure to provide "Equal Protection of the laws."7

The words of the Equal Protection clause are general

and, when read literally, express no limitation on the equal8protection which states are forbidden to deny. The clause

means exactly what its language says: namely, that any person

coming within the jurisdiction of a state has the right to

the same protection of the laws of that state as the state

extends to other persons within its jurisdiction. It does

not mean that the laws must be the same: only the protectionmust be the same.9

In spite of its clear language, there has been much

scholarly controversy over the original understanding of the

Fourteenth Amendment. In "Government by the Judiciary,"

Raoul Berger argues that the Equal Protection Clause was in-

tended to prohibit only racially partial legislation that af-

fects specific civil rights concerning the security of person

and property, provided in the Civil Rights Act of 1866.10

Berger says further that the provision of section one does

not empower Congress to enact laws for direct enforcement

thereof: "To convert 'no state shall deny' into 'Congressshall make' does violence to the text."ll

This construction has been successfully challenged else-

where on a number of grounds:

(1) Bickel argues that the framers did not simply use thelanguage of the Civil Rights Act, because they wereaware it was a Constitution they were writing: anorganic document that because of its unique function andpermanence must contain language which allows for future

11

unforeseen problems. In his view the framers did whatthey intended to do: propose a genef21 constitutionalprohibition of inequality under law.

(2) Ten Broek argues that the protection of the laws must besupplied. In other words, the absencI30f all protectionis a ground for federal intervention.

(3) Dimond says that Berger's interpretivist theory ofjudicial review fails to comprehend the Supreme Court'sinstitutional mission such as its role in articulatingthe con~emp?~ary meaning of sweeping phrases like EqualProtectlon.

There exists a rather serious question whether anyone

today can hope to accurately discern the intent of the

majority of people responsible for the proposal and ratifica-

tion of the Fourteenth Amendment. IS As Terrance Sandelow put

it "to ask in each instance, whether the framers intended the

specific or the general is to pose a question that almost in-variably is unanswerable."16

In my opinion, although section one had a core focus

with respect to racial discrimination, the framers con-

sciously used broad language to comprehend new circumstances,experiences and insight.

12NOTES FOR CHAPTER B

1. Perry, Modern Equal Protection: A Conceptualizationand Appraisal, 79 Co1um. L. Rev. 1024-1083 (1979).

2. Baer, Equality under the Constitution: Reclaimingthe Fourteenth Amendment 64 (1983).

3. There were in that time three distinct abolitionisttheories:

(1) One theory said that the Constitution was amongthe worse things a pros1avery document. Its proponentsargued for consitutiona1 amendment or for dissolution.

(2) The coalitionists insisted that the Constitutionwas anti-slavery, but only in spirit. They sought to weakenslavery by securing the passage of federal laws rather thanto change the Constitution.

(3) Most important for understanding the FourteenthAmendment is the argument that the Constitution already for-bade slavery. Anti-slavery constitutional doctrine did justwhat disturbs most contemporary jurists: it found ideas ofjustice and natural law in the Constitution. It was withthis strain of constitutional theory that several framers ofthe Fourteenth Amendment were most familiar and most comfort-able.

See Baer supra note 2, at 60.

4. Ten Broek, Equal under Law 352 (1965).

5. Ten Broek, supra note 4, at 116.


7. Note, A Theory of Equal Protection, 14 St. Mary's L.J. 842-843 (1983).

8. Meyer, The History and Meaning of the FourteenthAmendment 108, 151 (1977).

9. Dimond, Strict Construction and Judicial Review ofRacial Discrimination under the Equal Protection Clause:Meeting Raoul Berger on Interpretivist Grounds, 80 Mich. L.Rev. 462, 495 (1984) .

10. Berger, Government by the Judiciary: The Transfor-mation of the Fourteenth Amendment 179 (1977).

11. Berger, supra note 10, at 184.

1312. Bickel, The Original Understanding of the Segrega-

tion Decision, 69 Harv. L. Rev. 581 (1955).


14. Dimond, supra note 9, at 494.


16. Sandalow, Constitutional Interpretation, 79 Mich. L.Rev. 1033 (1981) .

CHAPTER C

JUDICIAL SUPERVISION OF LEGISLATIVE CLASSIFICATIONS

The Equal Protection Clause has meaning as a legal force

only to the extent courts give it that effect.1

Therefore, judicial review under the Equal Protection

Clause raises broad problems as to the respective roles ofcourts and legislatures.2

It is possible to rationalize all Equal Protection deci-

sions as judicial determinations of whether the government

has fairly classified persons.3 At this point, the demand

for equality confronts the right to classify.4 The Equal

Protection Clause does not reject the government's ability to

classify persons or draw lines in the creation and applica-

tion of laws, but it does guarantee that those class-

ifications will not be based upon impermissible criteria orb' '1 d b d f . d' 'd 1 5ar 1trar1 y use to ur en a group 0 1n 1V1 ua s.

The Equal Protection doctrine of the Supreme Court has6undergone rapid and drastic transformations in recent years.

Prior to the Warren Court the Equal Protection Clause played

a very minor role outside racial discrimination cases.7 Only

a minimal judicial intervention was supported; the courts in-

sisted merely that the classification in the statute

"reasonably relate to the legislative purpose."8 Very little

attention was paid to whether the legislative purpose itself

14

15was valid.9 Only in racial discrimination cases did the

courts apply a stricter scrutiny due to the historical back-

ground of the Fourteenth Amendment.10

The principal way in which the Clause gained new

vitality during the Warren era was by means of a broadened

view of when a statutory classification should be subjectedt t' t' 11 h .11o s rlct scru lny. T e courts Wl not accept every per-

missible government purpose as sufficient to support a class-

ification under this test, but will instead require the

government to show that it is pursuing a "compelling" or

"overriding" end -- one whose value is so great that it jus-

tifies the limitation of fundamental constitutional values.

The courts will furthermore not defer to the decision of the

other branches of government but will instead independently

determine if the classification is necessary to promote suchII' 't t 12a compe lng ln eres .

Strict scrutiny under the Warren Court was imposed when-

ever either the classification was a suspect one because it

discriminated against a politically powerless or unpopular

minority, or that classification had an impact on a fundamen-1 . h . t 13ta rlg t or lnteres .

In actual fact the Warren Court found only race and na-. 1 " t b t 1 . f' . 14 h f dtlona orlgln 0 e suspec c aSSl lcatlons. T e un amen-

tal interest ingredient of the new Equal Protection doctrine

was particularly open-ended, but the list of interests iden-

tified as fundamental by the Warren Court was quite modest:

voting, criminal appeals and the right of interstate

1615travel. In all other contexts, the "old" rational

has refused to extend the suspect label to classifications

also probably in the areas of illegitimacy classifications,

the Court would uphold the classification only when the

21sex.

standards of the old Equal Protection doctrine proceeded to

f· d h .. I 241n t e statute unconst1tut10na .

Court, even while voicing the traditional "mere rationality"

Also, there were a number of cases in which the Burger

employed was "substantially related" to an "importantgovernmental objective."23

government could demonstrate that the classification it had

Most clearly in the area of gender based classifications, but

The Burger Court has, however, added an intermediate

standard of review to the Warren Court's two-tier approach.22

At the end of the 1960's, it was possible to do a

What has been the response to the Warren Court's

legacy?19 The Burger Court has declined to expand the Warren

based on illegitimacy and

doctrine in the ways that Warren-era opinions suggested the

doctrine might ultimately evolve.20 In particular, the Court

detailed analysis of all Supreme Court Equal Protection deci-

Bickel wrote that "a broadly conceived egalitarianism was the

main theme in the music to which the Warren Court marched."IB

relationship test reigned with "minimal scrutiny in theory

and virtually none in fact."16

sions in terms of a two-tiered model involving the rational

relationship test and the strict scrutiny test.17professor

17As a result, the most important thing that one can say

about the Burger Court's performance in Equal Protection ish 1 'h 'd' " 1 25t at Equa Protect1on as rema1ne an 1ntervent1on1st too .

It is hard to predict at this point what the Equal

formulated dissents, he argued that the rational basis test

have serious implications: members of "discrete and insular"

is the only proper standard of review where racial dis-

In his opinion, states

The possibility of a Supreme Court majority subscribing

past, Chief Justice Rehnquist has been adamantly opposed to

to this interpretation of the Equal Protection Clause will

minorities, who have turned to the judicial system because

relief was not available from the democratic process, willf' d h '11 281n t e courts unrespons1ve as we .

the three-tier approach of the Burger Court. In carefully

should be given maximum leeway to determine the best solution

to their problems.27

,. " '1' d 26cr1m1nat1on 1S not 1mp 1cate .

Protection doctrine of the Rehnquist Court will be. In the

18NOTES TO CHAPTER C

1. Note, A Theory of Equal Protection, 14 St. Mary'sL.J. 830 (1983).

2. Barrett, Judicial Supervision of LegislativeClassifications -- A More Modest Role for Equal Protection,1976 B.Y .U .L. Rev. (1976) .

3. Rotunda, Nowak and Young, Treatise on ConstitutionalLaw: Substance and Procedure 314-718 (1986).

4. Tussman and Ten Broek, The Equal Protection of theLaws 37 Calif. L. Rev. 341 (1949).

5. Rotunda, Nowak and Young, supra note 3, at 317.

6. Gunther, Constitutional Law: Cases and Materials657 (1975 and 1979 Supp.).

7. Emanuel, Constitutional Law 24? (1985) .8 . McGowen v. Maryland, 366 U.S. 420 (1961) .9. Tussman and Ten Broek, supra note 4, at 344.

10. Gunther, supra note 6 , at 657.II. Emanuel, supra note 7, at 242.12. Rotunda, Nowak and Young, supra note 3, at 324.13. Emanuel, supra note 7, at 242.14. Emanuel, supra note 7, at 242.

15. Gunther, A Model for a Newer Equal Protection, 86Harv. L. Rev. 9 (1972).

16. Gunther, supra note 6, at 8.17. Rotunda, Nowak and Young, supra note 3 , at 326.18. A. Bickel, The Supreme Court and the Idea of

Progress 103 (1970).

19. Gunther, supra note 6, at 659.20. Emanuel, supra note 7, at 243.

21. Note, Justice Rehnquist's Equal Protection Clause:An Interim Analysis, 63 Neb. L. Rev. 288-313 (1984).


23. Rotunda, Nowak and Young, supra note 3, at 326.Craig v. Boren, 429 U.S. 190, 197 (1976).

24. Gunther, supra note 6, at 661. Logan v. ZimmermanBrush Co., 455 U.S. 442 (1982).

25. Gunther, supra note 6, at 661.

26. Weber v. Aetna Casualty & Sur. Co., 406 U.S. 164(1972) .

27. Rehnquist, The Notion of a Living Constitution, 54Texas L. Rev. 693 (1976).


CHAPTER D

APPLICATION OF CLASSIFICATIONS UNDER THE EQUAL

PROTECTION CLAUSE

Throughout American history aliens have been subjected

to numerous restrictions imposed by Congress and State Legis-

latures.I One area of particular complexity concerns state

and federal laws which discriminate against aliens. These

alienage cases raise unique problems of federalism.2In 1886,

the Supreme Court held that aliens are "persons" so as to en-

joy the protection of the Equal Protection Clause.3

In 1971, the Supreme Court declared that "classifica-

tions based on alienage are inherently suspect and subject to

close judicial scrutiny."4 In reality, however, the Court's

scrutiny is not as strict as in cases involving class-

ifications based upon race or national origin.S Alienage

classifications are special in two respects:

(1) the concept of citizenship itself implies theexistence of a favored status for members of aspecified group; and

(2) alienage is not an irrevocable personal trait.6

The Supreme Court has chosen not to analyze all alienage

classifications in terms of a single standard of review.7

Instead the Court has employed a more lenient standard of

review -- the traditional rational basis test -- in two

cases:

20

21(1) Local governments may require U. s. citizenship

as a condition of obtaining a government position"ultimately relat§d to the process of democraticself-government."

This exception is premised on the view that thedistinction between citizens and aliens, irrelevantin other contexts, is fundamental to the definitionand government of a state. This is paradoxal,however, because the suspect classifications devicewas intended specifically to protect minorities ~otadequately safeguarded by the political process.

The trend has been toward broadening thisexception, one result of which has been to diminishthe national treatment of aliens which is moreexplicitly provided to some nationalitierowithinU.S. jurisdiction by bilateral treaties.

(2) Because of the important nature of the federalinterest in foreign affairs and foreign relationsas well as the federal power to regulate immigra-tion and naturalization, alienage classificationsby federal tfW are subjected only to the rationalbasis test.

The use of a preemption standard, however, wouldjustify the Court's differential treatment of stateand federal alienage classifications, a differencethat i~ a£~malous under Equal Protectionanalysls.

22NOTES FOR CHAPTER D

1. Note, State Burden on Resident Aliens: A NewPreemption Analysis, 89 Yale L.J. 940 (1980).

2. Maltz, The Burger Court and Alienage Class-ifications, 31 Okla. L. Rev. 671 (1978).

3. Yick Woo v. Hopkins, 118 U.S. 356 (1886). It shouldbe noted that, while the Equal Protection Clause does notapply to the Federal Government, the Fifth Amendment's DueProcess Clause guarantees Equal Protection in the applicationof federal law.

A principal difference between the Privileges and Im-munities and the Equal Protection Clause is that aliens canonly invoke the latter while U. S. citizens can invoke both.

4. Graham v. Richardson, 403 U.S. 365, 372 (1971).

5. 2 Rotunda, Nowak & Young, Treatise on ConstitutionalLaw: Substance and Procedure, 489 (1986).

6. Nafziger, Conflicts of Law: A Northwest Perspective73 (1985).

7. Rotunda, Nowak & Young, supra note 5, at 489.

8. Bernal v. Fainter, 467 U. S. 216 (1984).


10. Nafziger, supra note 6, at 73.



CHAPTER E

DISCRIMINATION AGAINST NON-RESIDENTS

The Privileges and Immunities Clause of the United

States Constitution explicitly prohibits state discrimination

against the citizens of other states.1Although the Clause

only speaks of "citizens of each state," as a practical mat-

ter residence and citizenship are interchangeable.2

Non-residents possess two characteristics that generallycall for some special attention:

(1) they lack the right to vote; and

(2) ~hey a:e.vul~erable to local prejudice orlnsenslvlty.

The Framers adopted the constitutional ban on dis-

crimination against non-residents primarily as an instrument

of national unification.4 Hamilton deemed the Privileges and

Immunities Clause "the basis of the union."S And as Profes-

sor Ely put it "by constitutionally tying the fate of out-

siders to the fate of those possessing political power, the

Framers insured that their interests would be well looked6after.

When a non-resident is discriminated against, the case

could in theory be actionable under the Equal Protection

Clause as well as under the Privileges and Immunities

Clause.7 But each clause has a separate history of judicial

enforcement of the principle barring discrimination on thebasis of state residence.8

23

24

State discrimination with respect to non fundamental ac-

required to justify the discrimination under the minimum

Non-residency (unlike alienage) has not been held to be

In such a case the state is only

The fundamentality doctrine of the Privileges and Im-

The current Privileges and Immunities doctrine rests ap-

d ,. Cl 14an Immunltles ause.

(1) the Court inquires whether non-residents were "apeculiar source of the evil the law sought to remedy," and

tal right is involved, the Court applies the following test

tivities does not fall within the purview of the Privileges

a "suspect classification" for Equal Protection scrutity but1 t t' I' . 9on y 0 mere ra lona lty reVlew.

plication of the clause on whether or not the Privilege of

Immunity claimed is fundamental.10 Assuming that a fundamen-

rationality standard of review of the Equal ProtectionClause.1S

(2) the Court further inquires whether the discrimina-tion against non-residents bore "a substantial relal~onship"to the problem the statute was attempting to solve.

"intermediate level of scrutiny" under the Equal Protection

Clause.13

strict scrutiny test. The doctrine resembles closely the

rationality review, is not as rigid as the Equal Protection

munities Clause, although considerably stricter than minimum

to determine whether the discrimination against non-residents11was acceptable:

25As a result, the Supreme Court now interprets the Equal

Protection Clause to limit state power to discriminate

against in-state aliens more severely than it has ever

limited state power to discriminate against out-of-state

citizens under both the Privileges and Immunities and theEqual Protection Clause!16

26NOTES FOR CHAPTER E

1. Article IV, section 2, United States Constitution.The Clause is a specialized type of Equal Protection provi-sion which guarantees that all classifications which burdennon-residents must relate to legitimate state or local pur-poses. Rotunda, Nowak & Young, Treatise on ConstitutionalLaw: Substance and Procedure 7 (1986). See generally: Sim-son, Discrimination against Non-Residents and the EqualProtection Clause of Article IV, 128 U. Pa. L. Rev. 379(1979) .

2. Doe v. Bolton, 410 U.S. 179 (1973).

3. Note, State Citizenship and Interstate Equality, 48U. Chi. L. Rev. 499 (1981).

4. Note, supra note 3, at 518.5. The Federalist No. 80 (Hamilton) , at 83.6. Ely, Democracy and Distrust 83 (1980) .7. Emanuel, Constitutional Law 119 (1985) .8. Note, supra note 3, at 490.9. Note, supra note 3, at 490.

10. Baldwin v. Fish & Game Comm'n, 436 U.S. 371 (1978).Note, supra note 73, at 493.

1I. Emanuel, supra note 7, at 115.12. Hicklin v. Orbeck, 437 U.S. 518 (1978).13. Note, supra note 3, at 514.14. Note, supra note 3, at 510.15. Baldwin v. Fish & Game Comm'n, 436 U.S. 371 (1978) .16. Note, supra note 3, at 514.

CHAPTER F

THE RIGHT TO INTERSTATE TRAVEL

The Freedom of interstate migration is not explicitly

given by any constitutional provision.1The reason for this

exclusion is not clear:

(1) It is possible that the Framers believed it to beso basic a right that it did not need to be expressed in thetext of the Constitution.

(2) Another possibility is that the Framers consideredthis guarantee to be2included in the other protections givenby the Constitution.

But the Supreme Court has always treated this right

to travel as "fundamental" and thus triggering strict Equal.. 3Protectlon scrutlny.

Shapiro v. Thompson is widely considered the classic

case illustrating the right to interstate travel.4 In that

case, the Supreme Court held unconstitutional state and

federal provisions denying welfare benefits to individuals

who had resided in the administering jurisdiction less than5one year.

The majority held that because the right limited (the

right to travel) and the right denied (the right to welfare

benefits) were "fundamental rights," the classification had

to be invalidated unless it was shown to be "necessary to

promote a compelling governmental interest."G

27

28The Court declined to locate this right to travel in

any particular constitutional clause. Rather the Court

recognized that the "nature of our Federal Union and our con-

stitutional concepts of personal liberty unite to require

that all citizens be free to travel throughout the length and

breadth of our land uninhibited by statutes, rules or regula-

tions which unreasonably burden or restrict the movement."?

Later cases have construed Shapiro to mean8 that the

right to travel is impaired, whereever it is "penalized,"

even if there is no actual deterrent effect on interestate.. 9 h h 1 h .. 11 .mlgratlon. But t e Supreme Court as a so sown ltS Wl lng-

ness to permit, without triggering strict scrutiny, minor im-

pairments of the right to travel.lO

29

NOTES FOR CHAPTER F

1. Rotunda, Nowak & Young, Treatise on ConstitutionalLaw: Substance and Procedure 694 (1986).



4. Shapiro v. Thompson, 394 U.S. 618 (1968).

5. Tribe, American Constitutional Law 1003 (1978).


7. Tribe, supra note 5, at 1003.

8. Memorial Hospital v. Maricopa County, 415 U.S. 250(1974) .


10. ~, lower tuition rates at state universities arenote sufficiently basic. Therefore, the state could imposedurational residence requirements for such lower charges,without meeting strict scrutiny. Starns v. Malkerson, 326 F.Supp. 234 (D. Minn 1970), aff'd, 401 U.S. 985 (1971).

CHAPTER G

CONCLUSION

TOWARDS A THEORY OF CONSTITUTIONAL EQUALITY

I think that the authors of that notable instrument

(the Declaration of Independence) intended to include all men

but they did not intend to declare all men equal in all

respects. They did not mean to say all men were equal in

color, size, intellect, moral developments or socialcapacity.

They defined with tolerable distinctness in what

respects they did consider all men created equal -- equal

with certain inalienable rights, among which are life,

liberty and the pursuit of happiness.

This they said and this they meant. They did not mean

to assert the obvious untruth that all were then actually en-

joying that equality, nor yet that they were about to confer

immediately upon them. In fact, they had no power to confer

such a boon. They meant simply to declare the right so that

enforcement of it might follow as fast as circumstancesshould permit.l

How progressive were we in the enforcement of that right

during the 130 years that passed since these famous words

were written by President Lincoln? This was the major

problem of this first part of my analysis.

30

31First, the equality ideal was placed in its historic

context: the Fourteenth Amendment, the one explicit

constitutional guarantee of equality, obviously had a core

focus with respect to racial discrimination. But the Framers

consciously used broad language to comprehend new cir-

cumstances, experiences and insights.

Then, the different standards of judicial review used by

the Supreme Court were examined: the rational relationship

test, the strict scrutiny test and the intermediate standard

of review. The conclusion was that at this point it is hard

to predict what the Equal Protection doctrine of the

Rehnquist Court will be.

Furthermore, the specific problems of classifications

based on residence and alienage were considered. The conclu-

sion was that the Supreme Court now interprets the Equal

Protection Clause with respect to discrimination against in-

state aliens more severely than it has ever interpreted the

Privileges and Immunities or the Equal Protection Clauses

with respect to discrimination against out-of-state citizens.

Finally, the existence of a limited right to travel was

proven.

As a result, Americans generally seem more concerned

with the idea of liberty, which they identify with absence of

government, than with the idea of equality.

In my opinion, the Court has not over-extended the Four-

teenth Amendment: A sweeping guarantee of protection from

stigmatization and oppression was narrowed into a protection

32of certain kinds of discrimination and classification. And

the Privileges and Immunities Clause has never been a

meaningful vehicle for judicial review of state actions.

However, in no country are the needs of the interstate

system more important than in the United States, where busi-

ness and social activities almost ignore state lines.

Therefore, I believe that the Court, in deciding the

reasonableness of classifications based on residence, has

been too deferential to state legislatures. Limiting the

protection of local laws to local people is obviously ra-

tional under traditional tests but somehow that seems

unsatisfying: Decreasing the significance of state residence

tends to strengthen interstate attachments and thereby

diminishes the likelihood of interstate conflicts.

One way of doing this is by broadening the fundamental

right to travel. Another possibility is to stop interpreting

the Privileges and Immunities Clause as being limited to

"fundamental rights." But I prefer yet another method:

classifications that distinguish locals from out-of-staters

are suspect and should therefore be subjected to the strict

scrutiny test of the Equal Protection Clause.

What is now the relevance of this Equal Protection

analysis to choice of law decisions? This will be the

central question in the following chapters: To be examined

is the extent to which a state may make choice of law

decisions that apply its domestic law to extrastate events

33involving its own residents but refuse to make similar ap-

plications of its law to residents of other states.

In the conflicts context one will not ordinarily deal

with laws that on their face limit their protection to lo-

cals. Therefore, choice between the two basic principles of

a Federal Union --- equal treatment and the advancement of

local values --- should be avoided wherever possible. But no

choice of law methodology can harmonize these two principles

in all cases. Accordingly, every conflicts approach decides

which principle is ultimately to be preferred.

The Supreme Court has not yet limited a state's choice

of law on the basis of the Equal Protection or the Privileges

and Immunities clauses. The following chapters will be a

plea for the Court to take up that responsibility.

34

NOTES TO CONCLUSION

1. Lincoln, An Address Delivered at Springfield, June26, 1857; in: Abernathy, The Idea of Equality 185 (1959).

PART II. EQUAL PROTECTION AND CHOICE OF LAW

CHAPTER A

INTRODUCTION: SETTING THE STAGE

In the adjudication of any case, a court is called upon

to effectuate two basic but opposing objectives: to achieve

justice in the individual case and to protect the interests

of society in the integrity of its legal system.1 Extended to

their extremes, societal needs would best be advanced by

rigid rules; conversely complete justice in the individual

case would often call for ad hoc decisions.2

When critical elements in a legal relationship transcend

a single jurisdiction, a conflict of laws case may arise.3

The problem then becomes whether to ignore the foreign ele-

ment and to treat the case as arising under local law, or to

seek an accommodation between the forum and the foreign legal

system by giving weight to the foreign element and applyingforeign law.4

Conflicts of law has always struggled with the hopeless

task of solving, with local territorial means, an essentially

international problem, namely to assure that the same case

will be decided everywhere according to the same law.5

Therefore, conflicts is an area of the law noted for

disputations over theory.6 Basically, however, there are two

groups in conflict of law thinkers:

35

36(1) the "forum faction" thinks that the forum should

apply foreign substantive law only by way of exception.

(2) the "substantivists" would like to see the crea-

tion of new rules of substantive private law to decide the7case.

In the United States, facts or contacts with legal

systems/territorial other than the forum raise conflict of

law concerns primarily in three different situations:

(1) whether a court can appropriately entertain a

case which has a foreign contact, i.e., jurisdiction.

(2) if a court does hear a case, to what extent does

the law of another state or country have claim to considera-tion, i.e., choice of law.

(3) if a court hears a case, what is the effect of

the determination or judgment in another state or country,

i.e., recognition and enforcement of judgments.8

The second question, namely the choice of law problem,is the subject of this analysis.

In the United States, the principle source of choice of

law rules is state law.9 Each state determines whether in a

given case its courts should apply substantive rules taken

from one or another of the state legal systems, from federallaw or from a foreign legal system.lO

Except when Congress has occupied the field, a federal

court, too, must in diversity cases apply the choice-of-lawrules of the state in which it sits.ll

37

The influence of the United States Constitution is

mainly exercised through the limitations it places on the

power of the states to shape their own choice-of-Iaw rules,

to the detriment of other states of the Union, and much more

important, to the detriment of the federal symbiosis of12states. However, in this area there is still little

authoritative guidance.13

The last thirty years have witnesses a fundamental

change in the landscape of choice of law doctrine in the

United States.14 Most of the efforts of the past decades have

been to escape from the traditional choice-of-Iaw rules.15

Under the traditional approach, to a given set of facts

the rules of substantive law of that state which enjoys an

intimate relationship with the issue at hand are applied be-

cause of the existence of a given fact: the so-called "point

of contact." The substantive laws of all states are treated

equally since they are all applied according to the same'f t 16 h' I' h h I f I I .p01nt 0 contac. T 1S exp a1ns w y t e ru es 0 ex OC1

--- the law of the place where the act occurred was the law

with the point of contact --- developed in the United

States.17

These rules trace their history back to Europe in the

Middle Ages. Until then, the courts generally applied lex

fori, the law of the forum adjudicating the case. With the

rise of international commercial transactions, it became

38

important to recognize the law of the country in which thedisputed act had occurred.18

Traditional choice of law in the United States has, fur-

thermore, reflected the tension between the relatively

flexible doctrine of comity and the more rigid concept of

vested rights. Comity as a choice of law mechanism in the

United States is generally traced to the writings of Joseph

Story in the early 1800's.19 Comity, he said, refers to the

paramount obligations of nations to give effect to foreign

law when that foreign law is appropriate for the case. That

obligation rests on the forum's voluntary consent to apply

that law, given in order to do substantial justice. As a

result, rights acquired within the boundaries of a country, d th' I'd' b f' 20retalne elr va 1 lty ecause 0 comltas.

This concept was transmitted by Holland, an English

legal philosopher, to Dicey, who used it to develop his

doctrine of vested rights:21 "Any right duly acquired by the

law of any civilised country is recognized ... by theEnglish courts."22

Joseph Beale, a highly influential American conflict-of-

laws theorist during the early 1900's further developed the

concept of "vested rights." He insisted that once a right is

lawfully created in a given jurisdiction, it must be recog-23nized and validated everywhere. Beale codified the vested

rights approach in the First Restatement of Conflict of Laws

(1934) .24 That document thus became responsible for implant-

ing in American law a continental dogma which, by then, had

39long been discarded in the countries of its origin.25 Namely,

the vested rights theory has been subjected to attack as ex-

plaining only why foreign law should be applied and not when

foreign rights should be recognized and protected by the lo-cal forum.26

The same was true of yet another American doctrine of

that time: "the local law theory" of Judge Learned Hand and

Walter Wheeler Cook27 which saw the sole source of conflicts

law in the law of the forum: no foreign law was actually ap-

plied. Rather, the court created its own law patterned afterthe foreign model.28

The local law theory too has been subjected to criticism

as leaving the courts without a guide as to which law they

should apply. Legislators, judges and scholars have soughtnew answers.

40NOTES FOR CHAPTER A

l. Scoles & Hay, Conflicts of Law 4 (1982) .2. Scoles & Hay, supra note 1 , at 4.3. Scoles & Hay, supra note 1 , at 3.4. Scoles & Hay, supra note 1 , at 5.5. Kegel, The Crisis of Conflict of Laws, 112 Rec. des

Cours de l' Academie de Droit International de la Haye 95,108 (1964).

6. Martin, Conflict of Laws: Cases and Materials 103(1984) .

7. Kegel, supra note 5, at 97.

8. Scoles & Hay, supra note 1, at 3.

9. Kahn-Freund, General Problems of Private Interna-tional Law, 143 Collected Courses of the Hague Academy of In-ternational Law 139, 211 (1974).

10. Kahn-Freund, supra note 9, at 211.

11. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S.487, 61 S. Ct. 1020 (1941).

12. Kahn-Freund, supra note 9, at 21l.13. Kegel, supra note 5, at 165.14. Note, Choice of Law: A Fond Farewell to Comity andPublic Policy, 74 Calif. L. Rev. 1447 (1986).15. Siegel, Nutshell on Conflicts of Law 1 (1983) .16. Kegel, supra note 5, at 102.17. Note, supra note 14, at 1447.18. Note, supra note 14, at 1448.19. Note, supra note 14, at 1449.20. Kegel, supra note 5, at 106.21. Kegal, supra note 5, at 106.22. Dicey, Conflict of Laws, 5th Ed. 17 (1932) .23. Note, supra note 14, at 1448.

4124. Note, supra note 14, at 1448. The Restatement con-

tains no explicit statement of the vested rights theory butis generally regarded as in accord with it. See, Cavers,Comment: The Two "Local Law" Theories, 63 Harvard L. Rev.822-828 at 824, note 4 (1950).

25. Ehrenzweig, Conflicts in a Nutshell 1-360, at 27(1965).

26. Kegel, supra note 5, at 107.

27. On possible differences between Judge Hand("homologous right" theory) and Cook ("local law" theory) seeCavers, Comment: The Two "Local Law" Theories, 63 Harvard L.Rev. 822-828 (1950) .

28. Ehrenzweig, supra note 25, at 27.

42

CHAPTER B

REVOLUTION AND COUNTERREVOLUTION IN CHOICE OF LAW

But their criticisms, however effective, were largelyt' 6~cs.Several commentators criticized these judicial gymnas-

Traditional conflict of law thinking, as exemplified by

Revolution" consists of doctrinal writings and case law which

have influenced American practice since the late fifties.

The development started in the thirties, when a number of

What has been described as the American "Conflicts

benefits claimed for the First Restatement's system for

the First Restatement, was dominated by the search for sen-

distinguished law teachers began to criticize the traditional

way of solving conflict of law problems. 1

sible and clear rules leading to the application of the same

law wherever multiple contact cases arose.2 The principal

negative, until 1933 when the first major breakthrough came

choice of law are ease of administration, predictability and

uniformity (or forum neutrality).3

However, the system of escape devices substantially un-

dermined predictability and forum neutrality. 4 Innovative

courts resorted to such escape devices as characterization,

renvoi and public policy to avoid literal application of the

rules which would lead them to inequitable and unjust5results.

43with David Cavers seminal "Critique of the Choice-of-Law

7Problem." The chief defect of the traditional systems,

Professor Cavers argued, was that they were designed in terms

of "jurisdiction selecting" rules which purported to lead to

the applicable law irrespective of its content: "The Court

must blind itself to the content of the law to which its rule

or principle of selection points and to the result which that

law may work in the case before it.,,8 Cavers seemed to sug-

gest that choice of law be made in each case with a view to

doing justice between the parties.9 The central example he

used in the 1933 article was modeled on the case Milliken v.

Pratt10 and contained in it the seeds of the Currie revolu-

tion.11 But, it was not until a quarter of a century later

that this "false problem" case was recognized to be a "no

conflict" or "false conflict" case, the abiding cornerstonef 1 . 1 . 12o governmenta lnterest ana YS1S.

Professor Brainerd Currie announced his governmental in-

terest analysis for choice of law problems in 1958. He wrote

several articles most of which were collected in a book,13"Selected Essays on the Conflict of Laws."

Basically his interest analysis applies in a series of

steps: First forum law is applied unless the law of another

state is claimed. If such a claim is made, the court then

determines whether, given the policy purposes of the con-

flicting laws and the state's contacts with the dispute, each

state has an interest in applying its law. At this point,

there are three possible situations:

44(1) False conflict: only one state is interested

and that state's law will be applied.

(2) No conflict: no state is interested and forumlaw will be applied.

(3) True conflict: the situation in which theapplicable laws of two or more states connectedto the dispute differ and each state has aninterest in applying its policy. Currie'scontroversial proposal was t~at in such casesforum law would be applied.

The decision of the New York Court of appeals in BabcockJ k 15 .. d h d l' f h' f 1v. ac son ~gn~te t e mo ern revo ut~on 0 c o~ce 0 aw

in the courts. The coincidence of the publication of

Currie's collected writings and the decision in Babcock is,.... f' 16~n retrospect, qu~te s~gn~ ~cant.

Since then, interest analysis has become a term employed

to describe perhaps a dozen different methods. Each method

generally agrees on the process of identifying interests and

on the recognition and resolution of false conflicts.17 But

interest analysis breaks into discretely different methods

because of the variety of techniques for breaking true con-flicts.

Basically, however, there are two groups of interestanalysis defenders:

(1) The orthodox whose prophet remains BrainerdCurrie perhaps with a few modifications andreservations.

(2) The reformists who start from other premises:the~ mo~~fy the ingredients but stick with therec~pe.

Interest analysis, even if restricted to false con-

flicts, has been critized since its inception by a

45"counter-revolution" led mainly by advocates of rules for

choice of law problems. In summary, the following are the... d h' .. 19maJor crltlcs an t elr maln pOlnts:

(1) Cavers, after starting the conflicts revolutionreturned to ~8rritorially based "principles ofpreference."

(2) Rosenberg argued that governmental interestanalysis ignores legislative policies favoringsimplicity, predictability and multistateharmony, while it necessitates subje2tive andtherefore dangerous value judgments.

(3) Scoles and Hay discussed the almost insolubledilemma facing courts attempting to determinethe policies and relative interests of relevantstates, 22sulting in unpredictable and ad hocresults.

(4) Ehrenzweig noted that Currie's analysis reliedon governmental interests while most conflictscases reso~~e disputes that concern only privateinterests.

(5) Brilmayer argued that Currie had a preconceivednotion of what state interests ought to be andthat he followed those a priori beliefs ratherthan following actual legis~~tive intent or evenlikely constructive intent.

(6) Kegel questioned the idea underlying thedoctrine of governmental interests that statesare interested in realizing certain policies bymeans of the application of their own sub-stantive ~3w to cases involving foreignelements.

(7) Korn proposed that the common domicile of theparties should be the preeminent choice of lawrule, based on the concept of a social contractand consent of the governed, as well as cornmunallY2ghared goals, conditions and concepts ofmorals.

(8) Leflar identified five "choice influencingconsiderations" that he perceived as2, "workingbasis" for judicial decision making.

46

(9) Reese, the reporter of the Second R2§tatement,favored the increased use of rules. Beginningin 1953, the American Law Institute labored forseventeen years to produce the first officialdraft of the new Restatement. The final producewas published in 1971 and reflects the period'smood of flexibility and openness to new ideas,while refusing to abandon past learning andremaining committed to the principle of decisionaccording to rules to the extent that29atisfac-tory rules exist or can be developed.

The Second Restatement's approach to choice of law ques-tions is basically the following:

(1) A court must follow the statutory choice of lawrule if one is available.

(2) If there is no statutorily directed choice, theRestatement provides specific rules to resolvesome issues.

(3) For most issues, however, the Restatementprescribes that the law of the state with the"most significant ~5lationship" to that issueshould be applied.

The ultimate goal is the development of a large number of

relatively narrow rules that will be applicable only in

precisely defined situations.31 The argument for such a

rule-oriented choice of law method is based on the belief

that rules channel the application of policy in ways thath' 'd d' t b'l' 32ac leve certalnty an pre lC a 1 lty.

The coincidence of the development of interest analysis

and the Second Restatement provoked widespread re-examination

of the choice-of-law question.33 The basic dispute in the

United States today is whether the development of rules

should be the ultimate objective in choice of law or whether

cases should be decided on a case by case basis after con-

sideration of certain enumerated factors.34

47The disarray in the courts is even worse:

(1) Half a dozen theories are in vogue among thevarious states.

(2) many decisions use - openly or covertly - morethan one theory.

(3) Inconsistency between d3gisions in the samejurisdiction is also common.

Because neither legislatures nor scholars seem to have

developed a sure alternative to the present confusion, con-

flicts law must gather its breath as it waits for the nextbreakthrough. 37

48

NOTES TO CHAPTER B

1. Vitta, The Impact in Europe of the American"Conflicts Revolution," 30 Am. J. Compo L. 1 (1982).

2. Baade, Counterrevolution or Alliance for Progress?Relfections on Reading Caver's The Choice of Law Process, 46Texas L. Rev. 141 (1967).

3. Richman & Reynolds, Understanding Conflict of Laws 1-343 (1984).

4. Richman & Reynolds, supra note 3, at 152.

5. Note, Conflict of Laws - Choice of Law - GovernmentalInterest Test Applied to Hold Foreign Tavern Owner Liable Un-der Local Law, 1976 Bringham Young Univ. L. Rev. 953.


7. Cavers, Critique of the Choice-of-Law Problem, 47Harvard L. Rev. 173 (1983); Baade, supra note 2, at 143.

8. Cavers, supra note 7, at 180.

9. Korn, The Choice of Law Revolution: A Critique, 83Co 1urn. L. Rev. 772 (1983).

10. Milliken v. Pratt, 125 Mass. 374 (1878).

11. Baade, supra note 2, at 143.

12. Baade, supra note 2, at 144.

13. Currie, Selected Essays on the Conflict of Laws 77(1963); Symposium, Conflict of Laws (Part I), 34 Mercer L.Rev. 471-899 (1982-83).

14. Note, Choice of Law: A Fond Farewell to Comity andPublic Policy, 74 Calif. L. Rev. 1455 (1986).

15. Babcock v. Jackson, 12 N.Y. 2d 473, 191 N.E. 2d 279,240 N.Y.S. 2d 743 (1963).

16. Symposium, supra note 13, at 593.


18. Symposium, Interest Analysis, 46 Ohio State L.J. 458(1985) •

19. Symposium, Conflict of Laws (Part II), 35 Mercer L.Rev. 586-587.

4920. Symposium, supra note 19, at 586-587; Baade, supra

note 2, at 141.

21. Rosenberg, The Come-Back of Choice-of-Law Rules, 81Colum. L. Rev. 946 (1981).

22. Scoles & Hay, Conflict of Laws 104-109 (1982).

23. Symposium, supra note 19, at 586-587.

24. Symposium, supra note 19, at 586-587.

25. Kegel, The Crisis of Conflict of Laws, 112 Rec. desCours de l'Academie de Droit International de la Haye 180(1961) .

26. Korn, supra note 9, at 772.

27. Leflar, Constitutional Limitations on Free Choice ofLaw, 28 L. & Contemp. Problems 706 (1963).

28. Richman & Reynolds, Understanding Conflict of Laws157 (1984).

29. Korn, supra note 9, at 816.


31. Martin, Conflict of Laws: Cases and Materials 44(1984) .




35. See: Kay, Theory into Practice: Choice of Law inthe Courts, 34 Mercer L. Rev. 521 (1983).



CHAPTER C

CHOICE OF LAW AND CONSTITUTIONAL LAW

If constitutional principles of federalism serve to order

intersystem relations (and the assumption here is that they

do), it seems quite plain that application and implementation

of the ordering function cannot rest with the states.l

The states of the Union retained their lawmaking power as to

conflict of laws. They even retained their power in interna-

tiona 1 conflict of laws, despite the argument that interna-

tional conflicts are a part of the field of foreign policy2reserved wholly to the federal government.

It is a curious phenomenon that in the United States the

notion of federalism is usually employed to convey limita-

tions on the national government only, with connecting3freedom for the states.

However, in matters of choice of law, federalism requires

more than a one-way deference to states' rights: it encom-

passes the obligation of each state to give due deference to

the laws of other states as well as to the needs of the in-

terstate and international system as a whole.4

It is the place of the Supreme Court or some other branch

of the federal government to settle issues that go to the ex-

tent of the states' power vis-a-vis other states or. 5countrles.

50

several forms:

(1) The constitutionalization of a choice of law

(3) The development of a set of outer limits on

This has been criticized as requiring the federal

51Federal control over states' choices of law might take

system. There is, however, a danger in viewing a single

principal constitutional instruments which can and should be

this creates a state of affairs in which future changes are1 t' 'bl 6a mos lmpossl e.

permits standards or limits to evolve. Therefore, this ap-11proach should be preferred.

boundaries for permissible choice of law decisions. The

Although the Supreme Court in the past has flirted with12the possibility of constitutionalizing the choice of law,

choice of law solution as the only constitutional one in that

't . 91 SltS.

state choice of law decisions. Such a negative control is

of law and held that a federal court sitting in a diversity

(2) The development of a federal common law of

choice of law. In Klaxon v. Stentor Electric Mfg. Co.7 the

Supreme Court extended the Erie8 doctrine to encompass choice

issues with less bias than state courts would presumablyhave.10

used to implement the principles of federalism in the sphere

courts to abdicate an opportunity to resolve choice of law

obviously less intrusive than other approaches and it also

constitutional law is now being viewed as setting only the

case must apply the choice of law rules of the state in which

52of choice of law are: the Due Process clause, the Full Faith

and Credit clause, the Privileges and Immunities clause andthe Equal Protection clause.13

Thus far the Supreme Court has shown extreme caution in

applying these clauses of the Constitution to choice of law14problems. However the advantages of extended federal con-

trol over choice of law are clear. First, more federal con-

trol would help to produce that uniformity in result which is

a principal goal of conflict of laws. Second, such federal

control would also prevent the harmful results of state

provincialism and jealousy, which is a primary purpose of the

American Constitution.15 Because choice of law involves by

its nature interstate and international matters and not

merely matters of local concern, national solutions are cru-

cial but every exercise of power at that level entails the

destruction or dimunition of state power, with the consequentweakening of local self-government.16

In the United States, the two prevailing methods for

choice of law are the rules and the policy approach. Choice

of law rules do reflect special value judgments and should

therefore be valid only if in accord with the applicable

principles of substantive justice embodied in the Constitu-. 17t1on.

To contemporary American lawyers unconstitutional choice

of law rules warrant no special discussion: they will not be

enforced. This view presupposes the suppremacy of constitu-

tional law and the existence of consitutional review by the

Credit clauses indicate that foreign law should be applied

In the following chapters, the extent to which the

residents or aliens. Moreover a state that denies the

53

The only argument that could be made against. d" 18]U lclary.

the specter of discrimination (under the Privileges and Im-

believed to have an interest in the application of its law

is underreaching: Under interest analysis, a state is

Constitutional review becomes somewhat complicated when

constitutional review is that the Framers never intended that

if, but only if, a resident would benefit from the applica-20tion of that law. Such a resident-centered approach raises

constitutional provisions should be applied to choice of law

A policy approach to choice of law could pose at least

munities or the Equal Protection clause) against non-

rules. However, the American Constitution did not excepth' f I I f 't h 19c Olce 0 aw ru es rom 1 s reac .

two serious constitutional problems. The first such problem

beneficial effects of its rules arguably infringes on the

right to travel.21 The second problem is overreaching,

the constitutional clauses seem to suggest contrasting solu-

tions, e.g., when the Due Process and the Full Faith ~Ed('..-

namely, the application of local law despite Due ProcessI b" 22cause 0 ]ectlons.

decisions will be examined: After an historical introduction

while the Equal Protection clause and the Privileges and"I 't d 'I 23Irnrnunltlescause pOlnt 0 omestlc aw.

Supreme Court controls and has controlled state choice of law

54

on constitutional control in general, the focus will be on

Equal Protection control of choice of law decisions.

The conclusion will be that coexistence of state choice

of law and federal control in a flexible process of decision

is needed, a process that considers both conflict of laws and

constitutional law from the standpoint of doing justicebetween the parties.

55

NOTES FOR CHAPTER C

1. Ely, Choice of Law and the States' Interest inProtecting Its Own, 23 William & Mary L. Rev. 173 (1981).

2. With respect to judicial jurisdiction, the SupremeCourt has exercised federal control by using constitutionalprovisions such as Due Process and Full Faith and Credit.Cheatham, Federal Control of Conflicts of Law, 6 Vand. L.Rev. 582 (1953) .

3. Symposium, Conflict of Laws (Part I), 34 Mercer L.Rev. 722.


5. Note, Effectiveness of Choice of Law Clauses in Con-tract Conflict of Laws: Party Autonomy or Objective Deter-mination, 82 Colum. L. Rev. 1659 (1982).

6. Muller-Freienfels, Conflicts of Law and Constitu-tional Law, 45 U. Chi. L. Rev. 607 (1978).

7. Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487,498 (1940).

8. In Erie v. Tompkins, 304 U.S. 64 (1938), the SupremeCourt decided that in diversity of citizenship cases afederal court must not only apply the statutes but also thesubstantive common law of the states in which it sits. Forthese purposes, said Mr. Justice Brandeis, "there is nofederal general common law."

9. Scoles & Hay, Conflict of Laws 922 (1982).

10. Scoles & Hay, supra note 9, at 922.


12. John Hancock Life Ins. Co. v. Yates, 299 U.S. 178(1936); Bradford Electric Light Co. v. Clapper, 286 U.S. 145,154-160 (1932).

13. Kahn-Freund, General Problems of Private Interna-tional Law, 143 Collected Courses Hague Academy of Interna-tional Law 139, 215 (1974).

14. Kahn-Freund, supra note 13, at 216.

15. Cheatham, supra note 2, at 588.

16. Cheatham, supra note 2, at 588; Jay, Origin ofFederal Common Law: Part I, 133 U. Pa. L. Rev. 1324 (1985).

5617. Muller-Freienfels, supra note 6, at 604.18. Muller-Freienfels, supra note 6, at 602.19. Muller-Freienfels, supra note 6, at 603.20. Brilmayer, Carolene, Conflicts and the Fate of the

"Insider-Outsider, " 134 U. Pa. L. Rev. 1303 (1986) .21. Brilmayer, supra note 20, at 1303.

22. Brilmayer, supra note 20, at 1303.

23. Kegel, The Crisis of Conflict of Laws, 112 CollectedCourses Hague Academy of International Law 196 (1961).

CHAPTER D

Court came close to engraving in the Constitution the vested

rights theory associated with Professor Beale and the First

57

For in Dick, the language used by

HISTORICAL OVERVIEW OF FEDERAL CONTROL OF CHOICE OF LAW

It is probably safe to say that the "modern era" of con-

In the beginning of this century, it looked as if the

effected through the vague words of the United States

Constitution?l The answer given by the Supreme Court has

varied from time to time and from field to field.2

For many years, the Court exercised no control at all.3

The history of Supreme Court intervention in state choice of

law dates only from the beginning of this century.4 The only

What is the measure of federal control of choice of law

provisions successfully invoked with any regularity are the

Due Process and the Full Faith and Credit clauses.5

Supreme Court would impose a constitutionally derived ter-

ritorial rule on the states.6 At that time, the Supreme

in 1934 to reserve the question whether every problem in con-

flict of laws had become a question of constitutional law.9

Restatement. The leading cases that illustrate this approach

are New York Life Ins. Co. v. Dodge7 and Mutual Life Ins. Co.

v. Liebing.8 These decisions led the American Law Institute

stitutional restrictions on choice of law began with the case. k 10Home Ins. Co. v. D1C .

58the Court could easily be read as adopting a test which took

into account the interests of the involved states.11 In

Dick, a Texas Court was held to have violated the Due Process

Clause by applying the laws of Texas while the only contact

it had to the case was the plaintiff's domicile.12 In other

words, Dick established that the plaintiff's domicile is in-

sufficient by itself for imposition of the forum's law:

Texas, lacking any interest in the insurance contract at

issue, lacked authority under the Constitution to regulate

it.13 Since Dick, the Court has tended to give state courts abroad discretion to use their own law.14

Because of the economic depression in the 1930's and the

increased state regulations of business in response to this

depression, the Supreme Court became increasingly concerned. h . 15W1t state 1nterests.

In Alaska Packers Ass'n v. Industrial Acc. Cornrn'n16the

Court found that both Alaska and California had "a legitimate

public interest" in the resolution of the problem.17 The

solution devised was to weigh those interests "by approving

the governmental interests of each jurisdiction and turningthe scale of decision according to their weight.,,18

Three years later in Pacific Employers Ins. Co. v. In-

dustrial Accident Cornrn'n,19Justice Stone did not balance the

interests of the two states. Instead, he determined that the

forum had a substantial interest in the dispute.20 The

Court's concern with states' interests was confirmed by later

59cases, particularly Watson v. Employers' Liability Ins.

21 . 22Corp. and Clay v. Sun Ins. Off1ce Ltd.

After remaining silent on these issues for seventeen

years, the Supreme Court, in 1981, decided the much discussed23case of Allstate Ins. Co. v. Hague. There are several im-

24portant aspects of the Hague case. First, by considering

the plaintiff's new residence as a relevant contact with the

forum, Allstate further expands the criteria available to

state courts in selecting their own law. However, the state

of the after-acquired residence could not without further

contact regulate the case for its resident's benefit. There-

fore, Justice Brennan's plurality opinion "found" other con-

tacts between the state and the controversy and the aggrega-

tion of these contacts was said to create Minnesota's inter-, h d' 25 d h 1 l' ,.est 1n t e 1spute. Secon, t e Hague p ura 1ty op1n10n

further interpreted and equated the Due Process and Full

Faith and Credit clauses. Third, Minnesota was allowed to

apply a controversial new approach to choice of law: the

"better law" approach of Leflar. Finally, since the result in

the case was acceptable only to a plurality rather than a

majority of the justices, it may be that there is no certain26rule of law to serve as precedent resulting from the case.

It would appear that, Hague was a missed opportunity to

say something meaningful about federal control of modern ap-

proaches in choice of law: Currie's assurances that undue

protectionism would be curtailed by the Equal Protection andP .. 1 d .. I 27 d th 'fr1V1 eges an Immun1t1es causes an at exceSS1ve orum

60favoritism would be controlled by the Due Process and Full

Faith and Credit clauses are therefore hardly convincing or. 28reassurlng.

In the jurisdiction and recognition field, however, the

Due Process and Full Faith and Credit clauses have, because

of effective Supreme Court intervention, become unifying ele-

ments of great potency and potentiality. And the con-

sequences of a choice of law decision affect a party much

more severely than does an inconvenient forum.29 This point

was made colorfully by Professor Silberman who said: "To

believe that a defendant's contacts with the forum state

should be stronger under the Due Process clause for jurisdic-

tional purposes than for choice of law, is to believe that an

accused is more concerned with when he will be hanged than30whether."

One can therefore only hope that the jurisdiction cases

will show the way to intervention by the Court with regard to

choice of law.3l Tolerance for parochialism in choice of law

may have been warranted in the past because it involved few

costs and because it provided doctrinal simplicity. Now,

however, the greater mobility of the people and their greater

tendency to engage in multistate activities has increased the

number of conflicts that arise and has thus decreased the

justification for accepting parochialism.32 It is therefore

time for the Supreme Court to take up it responsibilities as

a disinterested and dispassionate umpire in disputes between

the different passions and interests of the states.33 A set

61of guidelines which will further the notion of justice

underlying the Constitution is needed for choice of law deci-, k' 34S10n ma lng.

Several modern approaches, based only on favoritism for

local residents, run counter to the established principles of

the American federal system.35 The next chapter will con-

centrate on how these modern approaches might violate the

Equal Protection and Privileges and Immunities clauses.


10. Home Ins. Co. v. Dick, 281 U.S. 397 (1930).

13. Martin, supra note 5, at 236.

294 u.S. 532 (1935).

Richman & Reynolds, supra note 4, at 236.

Pacific Employers Ins. Co. v. Industrial Accident306 U.S. 493 (1939).

18.

17.


2. Cheatham, supra note 1, at 586.

15. Richman & Reynolds, supra note 4, at 236-237.


1. Cheatham, Federal Control of Conflict of Laws, 6Vand. L. Rev. 581, 586 (1953).

3. Kryger v. Wilson, 242 U.S. 171 (1916); See Cheatham,supra note 1, at 586.

4. Richman & Reynolds, Understanding of Conflicts ofLaws 343 (1984).

16. Alaska Packers Ass'n v. Industrial Acc. Cornrn'n,294u.S. 532 (1935).

7. New York Life Ins. Co. v. Dodge, 246 U.S. 357(1918) .

14. Nafziger, Conflict of Laws: A Northwest Perspective52 (1985).

8. Mutual Life Ins. Co. v. Liebing, 259 U.S. 209(1922) .

5. Martin, Constitutional Limitations on Choice of Law,61 Cornell L. Rev. 230 (1976).

19.Cornrn'n,

9. Restatement of Conflict of Laws SS 43 (1943); SeeRoss, Has the Conflict of Laws Become a Branch of Constitu-tional Law?, 15 Minn. L. Rev. 161 (1931).

12. Kahn-Freund, General Problems of Private Interna-tional Law, 143 Collected Courses Hague Academy of Interna-tional Law 216 (1974).


21. Watson v. Employers' Liability Ins. Corp., 384 U.S.66 (1954).

22. Clay v. Sun Ins. Office Ltd., 377 U.S. 179 (1964);See Richman & Reynolds supra note 4, at 237.

23. Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981); SeeSymposium: Conflict-of-Laws Theory After Allstate Ins. Co.v. Hague, 10 Hofstra L. Rev. 1 (1981); id. 973 (1982).


25. Weinberg, Choice of Law and Minimal Scrutiny, 49 U.Chi. L. Rev. 440 (1982).


27. Currie, Unconstitutional Discrimination in the Con-flict of Laws: Privileges and Immunities, 69 Yale L. J. 1323(1960); Currie, Unconsititutional Discrimination in the Con-flict of Laws: Equal Protection, 28 U. Chi. L. Rev. 145(1964).

28. Symeonides, Revolution and Counterrevolution inAmerican Conflict Laws: Is there a Middle Ground? 46 OhioState L. J. 549, 653 (1985).

29. Lowenfeld & Silberman, Choice of Law and the SupremeCourt: A Dialogue Inspired by Allstate Ins. Co. v. Hague, 14U •C .D .L • Rev. 841 (1981).

30. Lowenfeld & Silberman, supra note 29, at 843.31. Lowenfeld & Silberman, supra note 29, at 850.32. Martin, supra note 5, at 230.33. Lowenfeld & Silberman, supra note 29, at 856.34. Martin, supra note 5, at 230.

35. Brilmayer, Interest Analysis and the Myth of Legis-lative Intent, 78 Mich. L. Rev. 392, 416 (1980).

CHAPTER E

EQUAL PROTECTION LIMITATIONS ON CHOICE OF LAW INTHEORY AND PRACTICE

Throughout history, arbitrary geographical boundary

lines have made unjustified differences to the lives of. 1Amerlcans.

The Framers, aware of this danger, inserted the

Privileges and Immunities Clause into the United States Con-

stitution, designed, at least partly, to minimize friction

among the people of the various states.2 In view of the

Framers' deep commitment to representative government, it

also seems appropriate to suppose that, in placing some con-

straints on states freedom to discriminate against non-

residents, the Framers were moved, in part, by democratic

ideals,3 not to exercise government without the consent of4the governed.

Moreover, the Supreme Court's deferential attitude

towards the states in the context of conflict of laws, has

encouraged experimentations with new ideas and methodologies~ I' h' fl' 5 . I blIor reso vlng c Olce o. aw questlons. Specla pro ems

arise, however, when a forum state's decision to apply for-

eign law turns on the residence of the parties, and results

in worse treatment for the non-resident. Discrimination

against non-residents evokes particular concerns in the

constitutional system of the United States not only under the64

65Privileges and Immunities Clause, but also under the Equal

Protection Clause.6 It should be stressed that while the

Supreme Court has never invalidated a state's choice of law

decision on the basis of either of the discrimination provi-

sions,7 arguments have been made in some cases that the

choice of law rules applied violated these clauses.8

of Russel Weintraub, one of Currie's followers who has stated

would refuse to apply its own law to its own residents be-

cases of discrimination thanks to utilization of neutral and

This is shown even more clearly by the argument

impersonal choice of law rules. These rules were applied to

all cases in the local courts, irrespective of who the

parties were.10 Brainerd Currie, however, accused the tradi-

The traditional "vested rights" doctrine basically ig-

nored the citizenship of the parties.9 That system minimized

"governmental interest analysis" in order to accept his con-

tional system of choice of law of sweeping discrimination

problems under the rug.11 However, the cases he cites in

support of this contention are, in my opinion, not very

convincing: one has to believe in his methodology, called

that "a form of Equal Protection problem arises if the forum

the forum rule would be advanced by applying it and it such

I. 12c USlons.

contact'. Such a refusal may be based upon an unreasonable

some other geographical location as having the 'decisive

classification of forum residents if the policies underlying

cause the forum's traditional choice of law rule points to

66application would not interfere with the legitimate interestof any other state."13

14None of the new approaches to choice of law explicitly

discriminate against parties on the basis of state citizen-h' 15s lp. When such choice of law approaches are not dis-

criminatory on their face, we must now consider whether theyare discriminatory in their application.16

'h f h ,,17 hassume, Wlt out urt er examlnatlon, t atModern theories

a state has aninterest in applying its law in order to protect its

domiciliaries or residents but has no such interest in non-

domiciliaries or non-residents.18 Domicile looks like a very

reasonable foundation for modern approaches: it possesses a

rather precise definition and it caters to the general per-t th t h home.19 B t f t 1 t tcep ion a everyone as au, or a eas wo

reasons, excessive reliance on domicile constitutes the most

important weakness of modern approaches:

(1) it jeopardizes a principle essential to smooth

functioning of federal systems: treating non-residents asf ' 1 'd t 20 dalr y as reSl en Si an

(2) it also raises problems of whether an in-

dividual ought to be able to get a change of law by deli-

berately acquiring a new domicile after the transaction in

question occurred.21 However, without the basic methodologi-

cal premise --- that states are interested in protecting

their own residents in a way they are not interested in

protecting others --- modern approaches are largely im-22potent.

67

Currie wrote two articles about the constitutionality of

defining protective interests as running only in favor of23locals. His device to cope with the constitutional problem

was the so-called "intermediate solution" of extending the

protection of forum law to an out-of-stater if he or she was

similarly protected by the law of his or her home state.24

In other words, whether or not nonresidents are accorded

benefits equivalent to those accorded by local law, will

depend on what their legislators have seen fit to do for

them, and that, interest analysists argue, would not be a. l' f h . 'I d .. 1 25Vl0 atl0n 0 t e PrlVl eges an Immunltles Cause.

However, as Dean Ely points out, this is not the way the

Supreme Court has proceeded under Article IV: there is no

case where the Court has asked what the challenger would be. 1 d h 26 h "entlt e to at orne. On t e contrary, ln Austln v. New

Hampshire27 the Court held that the content of the chal-

lenger's home state law is irrelevant to a Privileges and Im-

munities challenge:28 "The constitutionality of one State's

statutes affecting nonresidents [cannot] depend upon the

present configuration of the statues of another State."29

Austin thus seems to stand for the proposition that it is not

sufficient under the Privileges and Immunities Clause to

treat people as the laws of their home state would treat

them.30 However, the Court's decision in Allstate Ins. Co.

v. Hague supplies reasons to suppose that the implications of

Austin were not fully considered.31 In Hague, seven of the

eight Justices argued that local residence is a factor on

68which a state may constitutionally rely in applying its own

32law. It is time for the Supreme Court to clarify thisissue.

Dean Ely offers, if only as the devil's advocate,

Protection issues that lurk within the modern view on choice

they lack political representation.

non-residents. Thus this methodology does not foster a

The Supreme Court has also

reinforcing" interpretation of the Privileges and Immunities

Clause, he argues that non-residents do not need the protec-

tion of that clause when their obligations are defined by

their own state government, rather than by a state in which

another defense of the constitutionality of modern conflicts

methodologies. 33 In accordance with his "representation-

non-resident's domicile can also frustrate the broader pur-

pose of the Privileges and Immunities Clause: to fuse the

states into a single nation by eliminating differential

treatment of citizens of other states:34 "Automatic approval

However, as Neuman points out, reference to the law of a

of recourse to the law of the domicile maintains rather than

reduces existing differential treatment between residents and

. 1 '. 1,35natlona economlC unlon.

incorporated this fuller vision of national unity into its

Equal Protection analysis, as illustrated by its decision,

involving discriminations against newer residents of a

state.36 As a result, sooner or later the Supreme Court willhave to address these Privileges and Immunities and Equal

of law.

69I will now examine how the Supreme Court could limit

modern choice of law successfully, without restraining the

states completely from applying the choice of law method they

prefer. Therefore, I will go back to the first part of my

analysis: the overview of the impact on constitutional law

of the Equal Protection and Privileges and ImmunitiesClause.37

As we have seen, the Equal Protection Clause obviously

has a core focus on racial discrimination. But the Framers

consciously used broad language to comprehend new cir-cumstances, experiences and insights.

The Warren Court introduced the strict scrutiny test for

laws that classify groups either with respect to fundamental

interests or on the basis of suspect criteria. The Burger

Court, in turn, developed an intermediate standard of review.

Non-residency has not been held to be a suspect class-

ification and is thus not subject to strict Equal Protection

scrutiny but only to mere rationality review.

The Privileges and Immunities Clause was plainly in-

tended to prevent discrimination against out-of-staters. But

unfortunately, the current Privileges and Immunities doctrine

rests application of the clause on whether or not the

Privilege or Immunity claimed is "fundamental."

The conclusion of this constitutional law analysis was

that the Supreme Court now interprets the Equal Protection

Clause to limit state power to discriminate against in-state

aliens more severely than it has ever limited state power to

70

discriminate against out-of-state citizens or non-residents

under both the Privileges and Immunities and the EqualProtection Clause.

Professor Simson argues that it is not likely that the

Framers intended coverage by the Privileges and Immunities

Clause of a particular privilege or immunity to depend on

whether they are "in their nature fundamental." According toS· 38lmson:

(1) "the relationship between the fundamental or

non-fundamental character of a Privilege or Immunity and the

amount of interstate friction generated by its selective

denial to non-residents is highly speculativei39 and

(2) "the fundamental or non-fundamental nature of a

right is irrelevant to the extent to which a law that dis-

criminates against non-residents with regard to the enjoyment

of that right satisfies democratic norms."40

Therefore, Professor Simson is in favor of a new stand-

ard of review, that invalidates any residence classification

not shown by the state to be necessary to serve a significantt b· t' 41sta e 0 Jec lve.

As has been stated before, in the author's opinion,42

classifications that distinguish between residents and

non-residents are suspect and should thus be subjected to the

strict scrutiny test of the Equal Protection Clause. These

classifications are suspect because they tend to bring about

disadvantages to persons with little or no formal or informal

input into the lawmaking process.43 Non-residents neither

71sit in nor otherwise materially influence the state legisla-ture, while residents fill its every seat.44

For at least three reasons, this author considers the

Equal Protection Clause to be a better basis for a constitu-

tional test of modern approaches than the Privileges and Im-.. 1 45munltles Cause:

(1) The Privileges and Immunities Clause never has

been a meaningful vehicle for judicial review of state ac-

tions. On the contrary, thanks to the relative simplicity of

the Equal Protection Clause and to the large number of cases

in which the Supreme Court has been called upon to consider

it, its significance is much less obscure than that of thePrivileges and Immunities Clause.

(2) The Equal Protection Clause is broader in its

application: aliens, corporations and residents are within

its protection. The Privileges and Immunities Clause onlyapplies to non-residents.

(3) Laws which place non-residents at a disadvan-

tage as to rights not fundamental for the purposes of the

Privileges and Immunities Clause, overstep the bounds of

reasonableness set by the Equal Protection Clause.

Under this author's analysis, the Supreme Court should

undertake a further revision of its interpretations of Equal

Protection limitations on the action of states and more

specifically on the choice-of-law decisions of states.

The Court should clarify that, although the Equal

Protection Clause does not obligate a state with

72decision-making authority to exercise its authority in favor

of any particular choice-of-law approach, these antidis-

crimination guarantees against discrimination of the effect

of undermining the legitimacy of several choice of lawmethodologies in current use.

NOTES FOR CHAPTER E

3. Simson, supra note 2, at 384.

1. Neuman, Territorial Discriminatino, Equal Protectionand Self Determination, 135 U. Pa. L. Rev. 262 (1987).

'ey·l":e


6. Neuman, supra note 1, at 319.

5. Note, Unconstitutional Discrimination in the Con-flict of Laws, 77 Colum. L. Rev. 287 (1977).

7. Note, supra note 5, at 274. In the latest editionof Cramton, Currie and Kay, Conflict of Laws 429 (4th ed.,1987) the Supreme Court case of Supreme Court of NewHampshire v. Pifer, 470 U.S. 274 (1985) is cited as an ex-ample of Supreme Court control over choice of law. In myopinion, however, that was not a conflicts problem (therewere no conflicting laws) but merely a constitutionalproblem. But See: Quong Ham Wah Co. v. Industrial Acc.Comm'n, 184 Cal. 26, 192 Pac. 1021 (1926): "A privilege anq.protection of the laws of a substantive nature is .•• ac-corded to citizens of this state and denied to citizens ofother states. This is forbidden by the Federal Constitu-tion." In this case, strangely enough, the Court did notnullify the statute, but extended the privilege to non-resident employees.

See: Commonwealth v. Mong, 60 Ohio St. 455, 117 N.E. 2d32 (1954): "Subjecting an Ohio resident to the making ofsupport payments, compulsory under the law of another state,as to which payments the law of Ohio specifically exempts allOhio citizens similarly situated, is violative of his rightto Equal Protection."

2. Simson, Discrimination Against Non-Residents and thePrivileges and Immunities Clause of Article IV, 128 U. Pa•.i"l!t.Rev. 379, 383 (1979) •

8. ~, Skahill v. Capital Airlines, Inc., 234 F.Supp. 906 (D.C.N.Y. 1964); Neumeier v. Kuehner, 31 N.Y. 2d121, 286 N.E. 2d 454, 335 N.Y.S. 2d 64 (1972); The reasoningof Justice Stone's famous footnote in United States v.Carolene Products, Inc., 304 U.S. 152 N.Y. (1938), has notbeen tested in the choice of law context. The reasoning isbased upon some vague notion that everyone who is affected bya political decision ought to have a right to participate inmaking that decision. Justice Stone argued that "groupswhose discrete and insular status effectively excludes themfrom the political process, qualify for heightened concern."For a complete analysis see Brilmayer, Carolene, Conflicts

74and the Fate of the "Inside-Outsider," 134 U. Pa. L. Rev.1291 (1986).

9. Therefore, they hardly every discrimitate on theirface.

10. Currie, Unconstitutional Discrimination in the Con-flict of Laws: Equal Protection, 28 U. Chi. L. Rev. 145(1964) .

11. Currie, Selected Essays on the Conflict of Laws 420(1963): "A forthright statement of the interest of the statein protecting its own purchasers would bring to light ques-tions of discrimination long obscured by the pietism of con-flict of laws law, and they are not single problems; but theyought to be brough to light and resolved, not swept under therug by formulas that compromise state policy."

12. See cases cited in Currie, supra note 11, at 572.

13. Weintraub, Commentary on the Conflict of Laws 572(1986). As you will see further, the problem with this kindof argument is that Interest Analysis tends to ignore ordownplay interests that are based on something else thanparty residence. In my opinion, a rules approach does notviolate antidiscrimination clauses because the Body of Lawimposed through the system of neutral and impartial rules onnon-residents, is, on the average, no less favorable than thebody of law imposed on local residents. In other words,rules have (if applied properly) the common advantage thatthey take the law referred to either way and not simply ifthey favor one or the other party.

14. By "new approaches" this author means governmentalinterest analysis and "related theories" such as the betterrule of law.

15. A choice of law rule that expressly required ap-plication of whichever law was most favorable to the partyfrom the forum state would be an example of such an explicitdiscrimination; Note, supra note 5, at 287.


17. That assumption went unquestioned until 1980, whenan investigation of the assumption caused it to crumple likewet paper; See Brilmayer, Interest Analysis and the Myth ofLegislative Intent, 78 Mich. L. Rev. 392 (1980): She arguesthat the normative assertion that states have no businessprotecting anyone but their own citizens, is not supported bycase law or by common sense: "this talk about interest is afiction and their premises are metaphysical."

7518. Corr, Interest Analysis and Choice of Law: TheDubious Dominance of Domicile, 1083 Utah L. Rev. 651, 666(1983) .

19. Corr, supra note 18, at 676.

20. See further for an elaborate analysis.

21. See: Corr, supra note 18 for an excellent analysis,Brilmayer, supra note 17, at 410.

22. Ely, Choice of Law and the States' Interest inProtecting Its Own, 23 W. & M. L. Rev. 173 (1981); The ques-tion then is whether we should reintroduce hard and fastrules that work injust and encourage evasion, or whether weshould retain non-rule approaches that may be unconstitu-tional.

23. Currie, Unconstitutional Discrimination in the Con-flict of Laws: Equal Protection, 28 U. Chi. L. Rev. 145(1964): Currie & Schreter, Unconstitutional Discriminationin the Conflict of Laws: Privileges and Immunities, 69 YaleL. J. 1323 (1960).

24. Currie, supra note 11 at 504; For critical remarkssee: Ely, supra note 22, at 183.

25. Ely, supra note 22, at 185.26. Ely, supra note 22, at 186.27. Austin v. New Hampshire, 420 U.S. 656 (1975).28. Ely, supra note 22, at 186.29. Austin v. New Hampshire, 420 U.S. 668 (1975).30. Ely, supra note 22, at 186; Ely further concludes

that if Austin is right as written, the dominant modernchoice of law theory is unconstitutional: "It undercuts theentire methodology by indicating that, whenever a state wouldclaim an interest in enforcing its protective policy on theground that the party its law would protect is a local resi-dent, it is obligated by the United States Constitution toclaim a similar interest in protecting out-of-staters, ir-respective of what their home state laws provide."

31. Ely, supra note 22, at 187. Allstate Ins. Co. v.Hague, 449 U. S . 302 (1981).

32. Ely, supra note 22, at 188; The opinion in Hague didnot even mention Austin.

76

41. See Chapter I.


Neuman, supra note 1, at 323.Neuman, supra note 1 , at 323.Neuman, supra note 1, at 321.See Chapter 1.

Ely supra note 22, at 190; Neuman, supra note 221,33.at 322.

34.

35.

36.

37.



38. Corfield v. Coryell, 6 Fed. Cas. 546, 551 (C.C.E.D.Pa. 1823); Simson, Discrimination Against Non-Residents andthe Privileges and Immunities Clause of Article IV, 128 u.Pa. L. Rev. 379 (1979).

42. Simson, State Autonomv in Choice of Law: A Sug-gested Approach, 52 S. Cal. L.~Rev. 61, 86 (1978).

40. Simson, supra note 38, at 388; His new standard isstrikingly similar to the intermediate used by the SupremeCourt in Equal Protection cases.

45. The major ambiguity in the Clause lurks in thephrase "within its jurisdiction." For an analysis see:Currie, supra note 10, at 529.

CHAPTER F

CONCLUSION

"Ye shall have one manner of law as well for the

stranger, as for one of your own country."l

As we have seen, the last thirty years have witnessed a

fundamental change in the landscape of choice of law

doctrines in the United States. The traditional system for

choice of law in the United States was embodied in the First

Restatement and was based on the "vested rights theory". The

system consisted of a few broad hard and fast rules, coupled

with an array of escape devices. Now, this traditional

framework has been discredited and replaced by a series of

mutually incompatible methodologies. But all these modern

approaches have in common a critical attitude towards

mechanical choice of law rules and the desire to make choice

of law more responsive to the demands of substantivepolicies.

Of greater interest, however, is whether modern theories

offer superior alternatives: Several modern approaches,

seemingly based only on favoritism for local residents, run

counter to the established principles of the American federal

system, embodied in the Privileges and Immunities and Equal

Protection Clauses of the United States Constitution.

77

78

Even apart from those constitutional problems, it seems

unfair to let justice depend on who sues whom and where:

modern approaches thus raise fundamental questions about

interstate and international justice. Their modus operandi

is resort to a single issue and this is sometimes highly

unfair to non-residents.

Moreover, even if judges were only "les bouches de la

loin as Currie argues, it has been shown convincingly that

state legislatures themselves tend not to exclude strangers

from the benefits of domestic reforms.2

However, thus far the Supreme Court has never in-

validated a state's choice of law decision on the basis of

either of the two antidiscrimination clauses. As shown

above, this author has argued that it is time for the Supreme

Court to take up its responsibilities in this respect. This

author suggested the use of the strict scrutiny test of the

Equal Protection Clause to review residence based class-

ifications. But this whole analysis also brings up the old

dispute: whether there should be rules, or in the alterna-

tive, whether there should be approaches in choice of law?

In this author's opinion, there are two possible directions

for choice of law methodology: opting for a modern approach

in a narrow constitutional context or a return to a more

rule-oriented approach. Of course, such a return should be a

careful one (to avoid the manipulation of choice of law

results via escape devices as in the traditional system).3

79

But before choosing a particular direction, let us

observe some recent European trends in choice of law metho-

dology. With Professor Schlessinger, the author strongly

believes in the value of comparison as an antidote to "an

unperceptive and uncritical attitude toward one's own law."4

80NOTES FOR CONCLUSION

1. Leviticus 24:22

2. Brilmayer, Interest Analysis and the Myth of Legis-lative Intent, 78 Mich. L. Rev. 392 (1980).

3. There is a third alternative: creating new rules ofsubstantive private law to decide conflicts cases.

4. Schlessinger, Comparative Law 34 (3rd Ed. 1970).

PART III. A SIDE GLANCE AT THE COMMON MARKET

CHAPTER A

INTRODUCTION TO THE EUROPEAN CONFLICTS SYSTEM

"Comparative law has one incontestable virtue: it shows

a greater range of possible solutions to a specific problemthan any particular legal system can boast of."l

Generalizations respecting the methodology of European

conflicts law are more difficult to make and less accurate

than are generalizations respecting thinking over these mat-

ters in the United States.2 The task that I undertake is

thus one of extreme difficulty. The following summary of

current developments should therefore be read with cautious

scepticism. My only excuse is my hope that this brief intro-

duction may induce the reader to form his own opinion byreading the original texts.

Because of the mobility of persons and transactions,

Europe has become as much of a "conflicts paradise" as the

United States.3 There is no unified European choice of law

method -- though some work in this direction has been done inthe framework of the European Community.4

Most of the European countries still adhere to the

jurisdiction-selecting methods:5 systems that select the

legal order which is to control the choice of law issue

81

82without particular regard to how the various concerned legal

orders wish to regulate the matters in question.6

The jurisdiction-selecting rules formulated by the First

Restatement are somewhat similar to those current in Western

Europe: both incorporate the two-state process of:

(1) characterization; and

(2) selecting a connecting factor.7

However, there the analogy ends: European rules are based on

Savigny's ideal of decisional harmony while American rules

find their foundations in the Vested Rights Theory.

Only recently, European lawyers and the courts in the

Federal Republic of Germany have recognized that constitu-

tional law affects choice of law decisions.8

Although American and European conflicts law have a com-

mon background --- the labors of glossatora and commentators

who, in Italy, made the conflicts law a science --- there are

basic differences which need to be explained:9 whereas the

common-law lawyer argues from case to case, the civil-law

lawyer primarily deduces his conclusions from statutory

provisions in the form of choice of law rules. He has to

discover and formulate the general principle governing his

decision and there is no prima facie presumption in favor of

internal substantive law.10

Also, the principle of legal certainty is of greater im-

portance in Europe than in the United States where

courts feel more inclined to attribute primary importance toth t· fl' f' d' .d 1 11e sa 1S actory so ut10n 0 1n 1V1 ua cases.

83

Most conflicts cases in the United States are interstate

rather than international, the states share a common language

and legal heritage and they are part of a federal system.12

In Europe, however, questions of private international law

mainly concern the relationship between the domestic system

as a whole and foreign legal systems with differing substan-

tive laws: problems are more truly international.13

In Europe, some nations do not accord constitutional law

primacy and even in countries which grant primacy to con-

stitutional law, it is disputable that courts with constitu-

tional review jurisdiction should invalidate unconstitutional

conflicts rules.14 In the United States the primacy of con-

stitutional law and the power of judicial review is estab-lished.15

The most important difference between traditional

European and modern American methodologies lies, as Kegel

points out, in their view of the relation between substantive

law and the conflict of laws.16 Traditionally, substantive

law and conflicts were entirely different things: substan-

tive law aims at the materially best solution while conflicts

law aims at the spatially (and materially) best solution.17

American reformers, however, allowed the conflict of laws to

become largely absorbed into substantive law so that choice

of law rules almost disappeared. In order to reach a choice

of law decision, American reformers start with an analysis of

the substantive laws, while Europeans still "blindly" deter-

mine which law to apply.18 The American point of departure

84

revolution.a closer look at the European reaction to the American

American conflicts thinkers misconceives the different tasks

In practice, however, the im-

very narrow particular choice of law rules, while European

conflicts law maintained widely formulated rules.19 Accord-

from substantive rules lead to ad hoc decisions or at best to

The American conflicts revolution has stirred sig-

ing to Professor Kegel, the methodology followed by modern

of both legal areas --- substantively correct solution within

substantive law, spatially correct solution within interna-

tional or interstate private law.20 In his opinion, conflict

of laws is a system of itself and should thus operate without

too much reference to the substantive laws underlying it.

. f· t db· 21nl lcan e ate ln Europe.

pact of the American revolution has been felt only in a few

European countries.22 In the following chapter, we will take

85

NOTES FOR CHAPTER A

1. Juenger, Lessons Comparison Might Teach, 23 Am. J.Compo L. 747 (1982).

2. Von Mehren, Comments, 27 Am. J. Compo L. 605 (1979).Europeans use the term "private international law" todescribe what in the United States is called "conflict oflaws," that is, the domain of rights, duties and disputes be-tween and among persons from different places.

3. Juenger, American and European Conflicts Law, 30 Am.J. Compo L. 117, 133 (1982): The widespread legal rulerequiring courts and other authorities to apply conflicts lawand foreign law ex officio also contributes to the conflictsparadise. See Siehr, Domestic Relations in Europe: EuropeanEquivalents to American Evolutions, 30 Am. J. Compo L. 27, 71(1982) .

4. Zweigert, Some Reflections on the SociologicalDimensions of Private International Law or What is Justice inConflict of Laws, 44 U. Colo. L. Rev. 283 (1973).

5. Juenger, Trends in European Conflicts Law, 60 Cor-ne 11 L. Rev. 969, 976 (1975).

6. Von Mehren, supra note 2, at 605.

7. Audit, A Continental Lawyer Looks at ContemporaryAmerican Choice of Law Principles, 27 Am. J. Compo L. 589,590 (1979).

8. Muller-Freienfels, Conflicts of Laws and Constitu-tional Law, 45 U. Chi. L. Rev. 598, 599 (1978).

9. Juenger, supra note 3, at 117.

10. Siehr, supra note 3, at 70.

11. Vitta, The Impact in Europe of the American"Conflicts Revolution," 30 Am. J. Compo L. 1, 3 (1982).


13. Muller-Freienfels, supra note 9, at 599. Therefore,it is asking too much to expect a judge of one country tospeculate on the policies underlying the laws of anothercountry.

14. Muller-Freienfels, supra note 9, at 600.


8616. Kegel, Paternal Home and Dream Home: Traditional

Conflict of Laws and the American Reformers, 27 Am. J. CompoL. 615, 616 (1979).

17. Kegel, supra note 17, at 617. The two conflictinggoals of each choice of law system are decisional harmony andappropriate solutions.

18. Kege 1, supra note 17, at 617-624.19. Kegel, supra note 17, at 625.20. Kegel, supra note 17, at 624.21. Hay, Reflections on Conflict of Laws Methodology, 32Hastings L. J. 1644, 1668 (1981) .22. Vitta, supra note 12, at 3; ~, Germany, Switzer-land.

CHAPTER B

EUROPEAN REACTION TO THE "CONFLICTS REVOLUTION"

"Law must be stable, and yet it cannot stand still."l

The writings of Professor Brainerd Currie have been very

important in the development of European interest in the

American approach to conflict of laws.2 Currie's purpose in

proposing new methodologies was to have conflicts problems

solved in the same way that domestic cases were decided and

no longer by jurisdiction-selecting rules imported from3Europe.

At first, the Europeans were moved by intellectual

curiosity about the modern American approaches: they at-

tempted to describe and analyze American developments.4 As

early as 1964, Kegel devoted his Hague lecture, which he en-

titled "The Crisis of Conflict of Laws" to a description and

critique of Currie's and Ehrenzweig's theories.5 Since then,

many European authors have devoted considerable space in

their articles,6 monographs7 and book reviews8 to evaluating

and criticising modern American approaches.9 Their main

criticism was directed against the unprincipled ad hoc

decision-making, the forum shopping, the legal insecurity,

the overriding importance to the problem of jurisdiction as

opposed to choice of law and the homeward trend in the modernAm . h 10er~can approac es.

87

88Even though there are many European studies on the

Instead, what happened in Europe must be considered not as a

The pressures for change were feltfl .b' 1 . 12greater eXl 1 lty.

was direct as well as indirect: In 1964, the United States

If any American theory has been coherently influential

of the excessive reliance on nationality as the connectingfactor.13

primarily in the field of domestic relations probably because

In practice, American influence on European developments

fluenced European private international law by way of inter-

revolution but as an evolution of the existing system towards

conflicts treatise which advocates any American approach as a

substitute for the traditional European conflicts methods.11

American conflicts revolution, I know of no leading European

jointed the Hague Conference of Private International Law.

Since then, American conflicts theories have directly in-

to the indirect influence of American thoughts on European

national treaties drafted with American participation and en-.. f' . 14 1 .terlng lnto orce ln European countrles. Any conc USlon as

choice of law thinking and practice involves much specula-

tion.15 It is, however, legitimate to assert that American

in Europe, it is the "most significant relationship" test of

applicable to cases with foreign elements by using

the Second Restatement, whose moderate position was very ap-17pealing to Europeans. The tradition of selecting the law

thinking has stimulated reconsideration of the traditional16rules for choice of law in European legal systems.

89appropriate connecting factors was strongly rooted in

European theory and practice. Therefore, when the need for

more flexibility in conflict rules was felt, it was rela-

tively easy to adopt flexible rather than rigid connectingfactors.18

Another trend detectable in Europe relates to thet t . f th k t' 1 1 . 19pro ec lon 0 e wea er par y ln a ega transactlon.

This tendency shows that European countries now pay greater

of policy analysis, the European courts made use of their

"directly applicable laws" has been recommended to American

ably that the new American theories have been difficult toThe explanation is prob-

attention to the social realities underlying legal develop-20ments. However, even in such instances with a slight touch

Why is it that American ideas had no more impact on

On the other hand, concepts developed in European con-

traditional methods: they either created new conflicts rules

as an exception or as an alternative to a formerly comprehen-

sive general rule or they applied such tools as the public

policy exception to avoid clashes between the lex fori andth d . t d f . 1 21e eSlgna e orelgn aWe

flicts scholarship have been noticed in the United States and

some interaction seemed to take place. Thus, the concept of

lawyers as a possible method for contributing to the develop-ment of American conflicts laws.22

E th' k' d t . ?23uropean ln lng an prac lce.

apply to the European situation because of the basic dif-f . h' . f fl' 1 24 h 1 1erences ln t elr Vlews 0 con lCtS aw: T e centra ro e

90

of values as simplicity, certainty, equality and predict-

ability in the European conflicts tradition prevented adop-

tion of interest analysis approaches.25 Moreover, any

successful system based on policy analysis, presupposes a

certain common background and, in my opinion, a certain26degree of federal control. Such a common background, based

on the English heritage, still exists in the United States

notwithstanding numerous differences in the statutes and in

the interpretation of the Common Law.27 This author has

argued before that federal control should be strengthened by28the Supreme Court.

In the next chapter, the author will discuss the

relationship between choice of law and constitutional or

European law in Europe and the possible influence of modern

American approaches in this field.

91NOTES FOR CHAPTER B

1. Pound, Interpretations of Legal History 1 (1967).

2. Cavers, Book Review, 85 Harvard L. Rev. 1499, 1501(1972) .

3. Currie, The Verdict of Quiescent Years, Selected Es-says on the Conflict of Laws 627 (1963).

4. For References ~ Vitta, The Impact in Europe ofthe American "Conflicts Revolution," 30 Am. ,J. Compo L. 1, 2(1982) .

5. Kegel, The Crisis of Conflict of Laws, 112 Rec. desCours de l'Academie de Droit International de la Haye 95(1961) .

6. ~, Ruiz, Interest-Oriented Approach to Interna-tional Conflict of Laws: The American Experience, 23 Neth.Int. L. Rev. 5-52 (1976).

7. ~, Hanotiau, Le Droit International PriveAmericain (1979).

8. ~, d'Oliveira, Book Review, 19 NederlandsTijdschrift voor Internationaal Recht 70 (1972).

9. See the Symposium in 30 Am. J. Compo L. 1 (1982).This symposium contains copious reference to European com-ments on American choice of law methods.

10. Juenger, General Course on Private InternationalLaw, 193 Rec. des Cours de l'Academie de Droit Internationalde la Haye 131, 232; Vitta, supra note 4, at 2.

11. Siehr, Domestic Relations in Europe: EuropeanEquivalents to American Evolutions, 30 Am. J. Compo L. 37, 67(1982) .

12. Sauveplanne, New Trends in the Doctrine of PrivateInternational Law and Their Impact on Court Practice, 175Rec. des Cours de l'Academie de Droit International de laHaye 18, 74 (1982).

13. In the United States, however, the conflicts revolu-tion happened primarily in tort law; ~ Juenger, supra note10, at 131.

14. Siehr, supra note 11, at 38; n. 2-6; Hanotiau, supranote 299, at 88-89.

9215. Morse, Choice of Law in Tort: A Comparative Study,

30 Am. J. Compo L. 51, 96 (1984).

16. Morse, supra note 15, at 94.

17. Morse, supra note 15, at 96. For different meaningsof the "closest connection" principle ~ Vitta, supra note4, at 12. However, as Morse points out there is no tendencyin Europe to discover the most significantly related law byreference to the type of choice of law "principle" set out insection 6 of the Second Restatement. Thus, no obvious atten-tion is paid to the "policy" of the relevant conflictingrules; Morse, supra note 15, at 96.

18. Vitta, supra note 4, at 14.

19. For examples, ~ Vitta, supra note 4, at 11.

20. Vitta, supra note 4, at 12: One can perceive asort of interest analysis, albeit private interests, whenshaping the conflicts rules."

21. Siehr, supra note 11, at 55.

22. Directly applicable laws: the domestic law of theforum is said to apply immediately, i.e., without any con-flicts rule, although important contacts to foreign jurisdic-tions exist. See Siehr, supra note 11, at 66.

23. Vitta, supra note 4, at 7.

24. See supra chapter A for a brief description of thosebasic differences.

25. Hanotiau, The American Conflicts Revolution andEuropean Tort Choice of Law Thinking, 30 Am. J. Compo L. 73,97 (1982).

26. Sauveplanne, supra note 12, at 76.

27. Vitta, supra note 4, at 6. In fact, interestanalysis may be nothing more than a return to the common lawmethod of arguing from case to case.

28. See supra Chapter II.

CHAPTER C

LIMITATIONS ON EUROPEAN CONFLICTS RULES

European legislators and courts have for too long ig-

nored constitutional and European law as setting boundaries

for permissible choice of law rules and decisions.1

What is the significance of the European Community for

choice of law decisions made by its Member States?2 Even in

Europe, very few people have yet asked this question.3 The

European Community offers standards of conduct to Member

States in the field of economic and social relations.4 But

problems of conflicts law were not dealt with in any substan-

tial way in the treaties establishing the Communities.5

As Fletcher points out, three varieties of conflicts ex-

ist because of the creation of the European Communities:

conflicts between the national and Community legal order,

conflicts between the Member States and conflicts between the

Community legal order and legal systems of other countries,

whether members of the Community or not.6 American readers

will certainly perceive certain parallels between these

situations and those they encounter in the perennial pheno-

menon of a fixed yet fluctuating federal-state relationship.7

Just like the judge in a system regulated by a federal

constitution, who must respect the limitations which the no-

tion of constitutionality imposes upon his scope for reaching

93

94

his decision, the national judge in the European Communities

exercises freedom of action only within certain definedI' . t 8lml s. However, it is far from being the case that the

European Community has yet succeeded in transforming itself9into a federalized system.

Conflicts between Community and national rules are

governed by the Supremacy Principle: the Community law, by, f 't . 1 t 10 d ' dvlrtue 0 1 sown specla na ure an conceptl0n, comman s

supreme force within the domestic legal order of every MemberState.11

With regard to "internal" conflicts cases, Article 220

of the Treaty contains limited provisions for the progressive

substitution of unified rules of Private International Law.12

Member States should make genuine efforts to accelerate the

rate of progress in this area, which has been disappointingly13slow. The national courts, in responding to a conflicts

problem, should enlist the assistance of the European Court

of Justice by means of a reference pursuant to Article 177 of

the Treaty. The Court is well qualified to undertake the

sort of comparative investigation which the question may well

require, and its ruling will thereafter constitute a

source of reference and inspiration for all courts in allMember States.14

One of the conflicts provisions that one can find in the

Treaty is Article 7, requiring that the prohibition against

any discrimination on grounds of nationality would be fully

respected by every Member State.15 However, the principle of

95non-discrimination does not occupy an important place as a

limit on a country's choice of law decisions. There is not

yet any clear "European test" available.16 This is very

surprising if one considers how much attention the non-17discrimination principle recently got in substantive law.

lvith respect to the situation in the individual Member

States,it was mentioned before that for the important

problems concerning the relation between conflicts and con-

stitutional law to arise, constitutional law should be ac-

corded primacy and judicial review must exist to implementh . 18t at prlmacy:

(1) In England there exists no power ofjudicial review.

no influence at all on choice of law decisions. According to

(2) In Germany, there is a power of review,concentrated in the Federal ConstitutionalCourt.

(3) In the United States, there exists adiffused system of judicial review: ever~9court can refuse to apply a certain law.

Until recently, national constitutional principles had

some conflicts thinkers, choice of law rules are simply

neutral, formal provisions, rules of expediency, devoid of

substantive justice and thus rules of Private Internationalh ld b b· t t' I .t . 20Law s ou not e su Ject 0 any na 10na constl utl0n.

it will be argued later, this view ignores the necessity of

more international justice: in Europe rules are not always

neutral or value free.21 A landmark decision of the German

Constitutional Court ignited a European "revolution" by

As

96establishing an interaction between constitutional principles

and choice of law.22 The American emphasis on the importance

of constitutional law in the conflicts area (especially with

respect to jurisdiction) has undoubtedly influenced thisEuropean development.

This decision and its implications for German (European)choice of law rules are examined below.

NOTES FOR CHAPTER C 97

1. Muller-Freienfels, Conflicts of Law and Constitu-tional Law, 45 U. Chi. L. Rev. 598, 611 (1978).

2. For an excellent book on Conflict of Laws andEuropean Community Law; see Fletcher, Conflict of Laws andEuropean Community Law 1-395 (1982).

3. But see Fletcher, supra note 2, at 23; Drobnig, Con-flict of Laws and the European Economic Community, 15 Am. J.Compo L. 204 (1967); Loussouarn, Les Incidences desCommunaute's Europeennes sur la Conception Francaise du DroitInternational prive, 1974 Rev. Trim. Dr. Eur. 708 (1974).

4. Sauveplanne, New Trends in the Doctrine of PrivateInternational Law and Their Impact on Court Practice, 175Rec. des Cours de l'Academie de Droit International de laHaye 18, 77 (1982).

5. Drobnig, supra note 3, at 204.6. Fletcher, supra note 2, at 23.7. Drobnig, supra note 3, at 204.8. Fletcher, supra note 2, at 42.9 . Fletcher, supra note 2, at 43.

10. Supranational nature: able within the sphere ofcompetence actually to override the legislature and the ex-ecutive powers of the individual Member States.

II. Fletcher, supra note 2, at 34.12. Fletcher, supra note 2, at 44.13. Fletcher, supra note 2, at 50.14. Fletcher, supra note 2, at 5I.15. Fletcher, supra note 2, at 50.

16. Sauveplanne, supra note 4, at 78; This in contrastto the United States where there are several tests availableunder the Equal Protection Clause. However, there the testsare not (yet) applied to choice of law decisions.

17. Ubertazzi, Regles de Non-Discrimination et Droit In-ternational prive, 157 Rec. des Cours de l'Academie de DroitInternational de la Haye 333, 348 (1977).



20. Kahn-Freund, General Problems of Private Interna-tional Law, 143 Collected Courses of the Hague Academy of In-ternational Law 139, 234 (1974).

21. Muller-Freienfels, supra note 1, at 603; ~, therule that in domestic disputes the law of the husband'snationality is to be applied, brings numerous practical dis-advantages for wives:

(1) it ignores the fact that the law of the wife'snationality is generally most appropriate for application toher; and

(2) the wife unlike the husband is not afforded theopportunity to influence the choice of law determination byacquiring a new nationality; see Muller-Freienfels, supranote 1, at 603.


CHAPTER D

THE SIGNIFICANCE OF NON-DISCRIMINATION CLAUSES WITH RESPECTTO CHOICE OF LAW

The phenomenon of massive immigration in industrialized

Europe forced some European countries and especially Germany

to rethink their excessive reliance on nationality as a con-

necting factor in choice of law decisions.1

The Garcia decision of the German Constitutional Court2

has probably attracted more attention than any other case in

the history of German conflicts law. In that case, both Ger-

man conflicts rules and German or foreign substantive law

were held to be subject to constitutional review.3

The facts were simple: A Spaniard intended to get

married to a divorced German woman. Under the German Civil

Code, marriage is, with respect to either spouse, governed by

the law of the state to which he or she is a national. Con-

sequently, a foreigner has to produce a marriage license from

the authorities of his country or has to apply for an exemp-

tion from this requirement. In this case, the Court of Ap-

peals in Germany had refused to grant an exemption on the

ground that under Spanish law the divorce, even of a foreign

civil marriage would not be recognized and that therefore the

proposed marriage would be regarded as bigamous.4

99

100The Federal Constitutional Court held that the conflicts

rule of reference to the nationality of the parties was sub-

ject to constitutional review but that in this case it did

not violate constitutional guarantees.5 Reference to the law

to which a person owes allegiance and with which he or she is

presumably most familiar would seem to accord with the intent

of prospective spouses.6 Nor could the idea of protecting

the stability of marriages be faulted: Germany made

reference to the national law of both persons to avoid that

the marriage would not be recognized in their horne

countries.7 However, the Court also held that the applica-

tion of Spanish law would infringe the constitutional right

of freedom of marriage and that therefore Spanish law could

not be applied.8 This holding comports with recent American

thinking that a court should look at the content of poten-

tially applicable laws.9

From this 1971 case, it was unclear whether German

choice of law rules which connect the solution of problems in

International Family Law to only one of the spouse's (usually

the husband's) nationality, were in harmony with the

Constitution's requirement that men and women are to be10treated equally. At the end of 1982, the Federal Supreme

Court (Bundesgerichshoff) decided that the choice of law rule

which subjected the dissolution of a marriage between spouses

of different, non-German, nationalities to the lex patriae of

the husband was not constitutional.ll In February, 1983, the

Federal Constitutional Court had the occasion to consider the

101rule according to which a married couple's matrimonial

property regime is to be governed by the lex patriae of the

husband at the time of the marriage. The Court had no doubts

that the rule was also in conflict with the Article in theC . t' . l' f 12onst~tu ~on guarantee~ng equa ~ty 0 sexes.

The requirement that choice of law provisions must

comply with constitutional precepts forced the German legis-

lator to review a substantial segment of the German statutoryconflicts rules.13

For other European countries, the answer to the question

of how they can incorporate equality principles in domestic

conflict rules, remains uncertain. American and German ex-

periences should encourage them in developing more just

choice of law methodologies.


1. Labrusse, Droit Constitutional et Droit Interna-tional Prive en Allemagne Federale, 13 Rev. Crit. Dr. Int.Prive 1, 27 (1974).

2. Decision of 4 May 1971, BVerfGE 58.

3. Juenger, The German Constitutional Court and theConflict of Laws, 20 Am. J. Compo L. 290, 293 (1972).

4. See Symposium, Conflict of Laws and ConstitutionalLaw: Opinion of the German Constitutional Court and Com-ments, 36 RabelsZ 141, 142 (1972).


6. Dickson, The Reform of Private International Law inthe Federal Republic of Germany, 34 Int'l & Compo L.Q. 231,233 (1985).

7. Dickson, supra note 6, at 233.


9. Juenger, supra note 3, at 296; Whenever the con-stitutionality of the outcome of conflicts cases is at issue,German judges will have to engage in what looks remarkablylike Governmental Interest Analysis.

10. Dickson, supra note 6, at 233; Article 3(2) of the1949 Constitution (Grundgesetz): "Manner und Frauen sindgleich-berechtigt." (men and women have equal rights).

11. Dickson, supra note 6, at 233; In a previous judg-ment of 18 January 1954; BGHZ 42, 7 the Federal Supreme Courthad held that this rule was not unconstitutional because itdid not necessarily lead to the woman being disadvantaged;see Dickson, supra note 6, at 233: the reasons given in 1982for the change of attitude was that the rule withheld thewoman the application of the legal system with which she wasprobably more familiar and that it laid her open to the pos-sibility of the husband's influencing the applicable law bychanging his own nationality; see Dickson, supra note 6, at233.

12. Division of February 1983, 63, 181. Some commen-tators have argued that conflict with Equal Rights principlesmay be avoided by giving the parties freedom to choose theapplicable law among the common national law of the parties,the national law of one of the parties and the law of theplace of residence. As Muller-Freienfels points out this

103proposal neglects an important consideration: In marriagelaw, public policy considerations restrict the parties'freedom to alter their obligations inter sei see Muller-Freienfels, Conflicts of Law and Constitutionar-Law, 45 u.Chi. L~ Rev. 598, 606 (1978).

13. Dickson, supra note 6 at 231 gives an overview ofthe modifications.

CHAPTER E

CONCLUSION

As has been shown, there is no "international" Private

International Law: it is American, Californian, European and

German Private International Law.

A universal system of choice of law is a utopia, but

this ideal may help to determine the direction in which prac-

tical action should move. After the initial radicalism of

opposed views is over, it should be possible to come

gradually to at least a degree of "rapprochement" between

European and American methodologies. It is with this goal in

mind that I made this brief comparative analysis.

First, some of the basic differences between American

and European conflicts law were explained. I pointed out

that the most important difference lies in the opposing views

of the relation between substantive law and the conflict oflaws.

Second, European reactions to the American "conflicts

revolution" were examined. The conclusion was that American

thinking has stimulated an evolution of European choice of

law rules towards greater flexibility.

Third, it was shown that the path towards European in-

tegration is long and difficult: sofar European law has had

104

105no notable influence on choice of law decisions by Member

States.Fourth, the author argued that European countries should

adopt the principles set forth by the German Constitutional

Court that choice of law rules must comply with constitu-

tional equality precepts.A factual basis for "rapprochement" between European and

American choice of law methodologies already exists: the

unprecedented mobility of persons and transactions allover

the world.In this paper the author did not really want to promote

one method as the best for all choice of law decisions

everywhere. The author only hopes that the softening of the

hard and often discriminatory choice of law rules in European

countries may develop further, under American influence.

But, the author also believes 'that some modern American

methodologies have, in recent years, been overly preoccupied

with problems of narrow local concern. Observation of

European trends might suggest that there are broader issues

___ such as international harmony and equality --- which

deserve attention.

GENERAL CONCLUSION

In this paper, the author confronted the premise, widely

invoked in modern American choice of law thinking, that a

state has a greater interest in protecting its own citizens

or residents than it has in protecting others, using an-

tidiscrimination clauses of the United States Constitution.

The author argued that classifications that distinguish

local residents from out-of-staters are suspect and that they

should therefore be subjected to the highest Equal Protectionscrutiny.

The comparison with European conflicts thinking was

meant to explain that conflicts justice is not perceived in

similar terms in Europe and in the United States.

Conflicts justice in the United States is viewed as a

case by case attempt to achieve justice in substantive terms.

Conflicts law is conceived as adjective law, that is, as the

mechanism for reaching the right result. In most states of

the Union, there is a wide common basis of tradition and sub-

stantive principles; conflicts usually arise from details in

legislation. This common background explains the success of

Interest Analysis related methodologies in American courts.

However, the idea that multistate problems call for an

analysis of the reach of local rules is, in my opinion,strikingly parochial.

106

107Moreover, justice in the individual case also means that

such an important goal as equality should not have to yield

to the inwardlooking (or parochial) results often reached by

modern American approaches. Federal concerns (for equal

protection) call as much for attention in the choice of law

process as do the concerns of the parties or of the par-

ticular forum. Decision-makers are representatives not only

of their own nation-state, but also of the larger collective

community and therefore preference for forum residents should

be avoided by them.

But, as long as state conflicts decisions are subject

only to the outer limits of constitutional control, a great

deal of parochialism will continue to prevail. The Supreme

Court has the power and the authority for activism in con-

trolling state choice of law decisions. It should be used.

In Europe, conflict of laws interest in the application

of this or that substantive law, that is European conflicts

justice, demands that the same scope of application be ac-

corded to every substantive law, domestic as well as foreign.

European legal systems assign an ordering function to con-

flicts law and thus view it as a separate body of law which

determines the applicable law in a neutral and objective

fashion, without regard to the substantive result. There-

fore, the most basic test of European conflicts rules is that

they be formally just. The German Constitutional Court

realized this in its holdings that equality of sexes should

be respected when choosing the applicable law for family

108relations. Other European countries such as Belgium should

follow the German example and review their conflict rules as

to their conformity with constitutional principles ofequality.

Finally, the author would like to address a somewhat

broader issue: What is the wisdom of applying local law to

multistate or international realities? Complete equal treat-

ment can only be assured if a uniform system of non-

discriminatory choice of law rules is accepted by all states

and countries and if this system is uniformly administered.

This is clearly an unattainable ideal. However, treaties and

cooperation on an international level can help develop a more

uniform approach and thus close the gap between American and

European conflicts law. Non-discrimination across the bound-

aries is a value thereby to be respected.

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