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 A SHORT SUMMARY OF AMERICAN CONFLICTS LAW:
CHOICE OF LAW

DENNIS J. TUCHLER*

I. INTRODUCTION

Conflict of Laws in the United States is unique to this country

in two ways. One reason for this is the peculiarity of our federal sys-
tem; the other is the pervasive influence of our American realist juris-
prudence. The former relates to the way in which the states of the Unit-
ed States relate to one another and to the central, federal government.
The latter conditions our understanding of law and the judicial function.
The three concerns of conflict of laws-choice of law, jurisdic-
tion and recognition of judgments-depend largely on a concept of state
sovereignty. That is because conflicts of law seeks to distribute authority
for governing the results of conduct affecting others, and thereby the
authority to regulate that conduct, among sovereign states. If one says
that the law of Italy governs the question of liability for breach of a
particular contract, one intends that Italy, alone, should regulate the
question of performance. The decision to apply Italian, rather than Zam-
bian or Finnish law, is grounded in part on the authority of Italy as a
sovereign state to regulate matters having a particular relationship to its
territory. Implicit in that reference is a set of some systematically orga-
nized ideas about sovereignty and how sovereign states relate to one
another. The power of such ideas becomes quite attenuated when the
ideas are considered in the context of the United States; hence, a system
of conflicts of law which appeals to the American mind will seem inad-
equate and perhaps puzzling to the European jurist.

A. American Federalism and the Sovereignty of States

In theory, American federalism is based on the paradoxical con-
cept of a powerful union of sovereign states, which is described in the
motto e pluribus unum.' The Constitution of the United States prohibits

* Professor of Conflicts of Law, Saint Louis University. B.A., 1960, Reed

College; J.D., 1963, University of Chicago. This paper was prepared for and presented
at the XIV INTERNATIONAL CONFERENCE OF THE INTERNATIONAL ASSOCIATION OF JU-
RISTS ITALY-U.S.A., September 18, 1992, St. Louis, Missouri.
1. This latin phrase means, literally, "one out of many," emphasizing both the
 SAINT LOUIS UNIVERSITY LA W JOURNAL [Vol. 37:391

a state of the Union from entering into international treaties. 2 A state

may enter into compacts with other states of the Union or with foreign
countries only with the permission of the Congress.3 A state of the
United States may not coin money,4 regulate trade across its borders in
order to further domestic economic interests,5 regulate immigration or
emigration," confer or deny citizenship, 7 establish a religion8 or raise
and control an army 9 for its own security or to pursue its interests
against any other states or countries. A state may not refuse to recog-
nize and enforce judgments rendered by other states of the United States
that award damages,"0 nor may it recognize judgments in violation of
Federal law." The outer limits of state court jurisdiction over persons
who act and live outside the state is regulated, not by any idea of state
sovereignty, but rather under the rubric of "fundamental fairness" as that
concept is embodied in the "due process" clause of the Fourteenth
Amendment.12 In general, a state may not favor its citizens over per-
sons who live in other states with respect to such fundamental things as
employment opportunities, and the rights to travel, to own property, or
to have access to its courts. 3 In every respect except control over the
formal operation of the organs of its government, 4 the state's ability to
regulate conduct within it is subject to the overriding authority of Con-
gress. A state's public agencies are not protected from suit in another
state by reason of sovereign immunity.
Unlike European states, states of the United States have no
national history. That is, a citizen of Connecticut or a citizen of Utah
has no connection with an ethnic or national tradition of the sort to
which an Italian or a German can refer-one which precedes territorial
sovereignty and brings with it a concept of membership in a peculiar
community which demands that community provide at least some of the

separateness and the unity of the states of the United States.

2. U.S. CONST. art. I, § 10, ci. 1.
3. U.S. CONST. art. I, § 10, cl. 3.
4. U.S. CONST. art. I, § 10, Cl. 1.
5. See Gibbons v. Ogden, 22 U.S. 1 (1824); Cooley v. Board of Wardens, 53
U.S. 299 (1851).
6. U.S. CONST. art. I, § 8, cl. 4.
7. Id. See also U.S. CONST. art. IV, § 2; amend. XIV, § 1.
8. U.S. CONST. amend. I.
9. U.S. CONST. art. I, § 10, cl. 3. See also U.S. CONST. amend. H.
10. U.S. CONST. art. IV, § 1.
11. U.S. CONST. art. VI, § 2.
12. Burnham v. Superior Court, 110 S. Ct. 2105 (1990).
13. U.S. CONST. art. IV, § 2.
14. See New York v. United States, 112 S. Ct. 2408 (1992).
1993] AMERICAN CONFLIC7 LAW

rules by which that member governs his or her life. If I am a Missouri-

an, it is because I am domiciled here, not because we Missourians are a
people culturally and historically different from Illinoisans or Kansans.
It should not be surprising, then, that concepts of sovereign
claims to regulate one or another aspect of a transaction are dealt with
as being rather thin and easily discounted in the states of the United
States. In this light, it is easy to see how assertion of individual inter-
ests, and concern for "good" or "fair" results, can overcome the sover-
eign claims of another state to recognition of its authority to regulate
conduct by regulating the outcome of a lawsuit.

B. American Realism and Rules of (Choice of) Law

The dominant jurisprudence in the United States is legal realism.
A superficial but, for these purposes, adequate description of realism
would note the following aspects. First, realism is a form of positivism
which asserts that law is created, not only by legislatures, but also by
courts and administrative agencies. Second, realism understands rules of
law in terms of their purpose and function. Law is not merely a com-
mand to do X or not to do Y. It has a purpose-some end or ends to
be achieved. The kinds of things included within some rule of law, and
the way in which they are regulated, depend upon the rule of law's pur-
pose or telos, even more than upon its words.
Finally, realism takes language to be indeterminate. In some
cases, of course, it is relatively easy to understand to what a statute
refers, and to what it does not. Even in such cases, however, there may
lurk problems of interpretation. Consider the Seventh Amendment to the
Constitution of the United States: "[I]n Suits at common law, where the
value in controversy shall exceed twenty dollars, the right of trial by
jury shall be preserved . .. ."' Is it obvious what "twenty dollars"
means? Does it mean the equivalent in purchasing power? Does it mean
twenty dollars today? Does it mean the current value of twenty dollars
in gold coin of the purity and weight that twenty dollars had in 1785?
If you like trial by jury and believe that the purpose of the Seventh
Amendment is to protect it, you will likely decide that "twenty dollars"
means "twenty U.S. dollars today." If you do not like trial by jury, and
believe that the purpose of the Seventh Amendment is to preserve jury
trials in large cases and to allow the Federal government discretion in
small ones, you might interpret "twenty dollars" to refer to gold coin or
to purchasing power, or perhaps even to some current or historic rela-

15. U.S. CONsT. amend. VII.

 SAINT LOUIS UNIVERS1Y LA W JOURNAL [Vol. 37:391

tionship between dollars and British pounds.

Because language is indeterminate, the Realist considers text in
terms of some posited purpose or function. Article IIof our Constitution
states that, to be President of the United States, a person must "have
attained to the Age of thirty five Years." 16 It is easy to say that today
and tomorrow, a person under the age of 35 may not be President, but
to the Realist, that conclusion can be reached only after inquiring into
the purpose of that provision, and, indeed, the effect of any interpreta-
tion other than what you might feel is the obvious one.
To the Realist, the thrust and content of a rule of law depend
largely upon how the interpreter-the judge, administrator, etc.-reads
the rule of law in the particular context of the problem at hand. That
problem always includes not only the case put, but also the effect of
one or another interpretation upon the social system that interpreter
serves. Realism rejects the idea that there is some great hermeneutic,
some meta-rule of interpretation, which, after all, must itself be inter-
preted. Indeed, a large part of our jurisprudential and constitutional
literature is devoted to the means by which a judge's freedom in read-
ing statutes and applying precedent should (and can) be limited.
Much American contract, tort, and property law is made by
courts through the development of legal themes in case decisions. In a
particular case, precedent is authoritative and guides decision only inso-
far as the explanation of that precedent in terms of some purpose, some
telos, continues to have utility in the present context. Similarly, statutes
are interpreted in a way that will further what the court views as the
legislative telos. Things and transactions not mentioned, not even fore-
seen at the time a statute is adopted, may nevertheless be brought within
the reach of that statute, so long as the statute's telos is served and no
injustice or other serious harm is done thereby. Put most simply, then,
our Twentieth Century legal tradition takes law to have meaning only
insofar as it has a purpose.
Of course, some rules of law have no purpose other than to
draw hard lines in order to resolve otherwise insoluble cases. One such
rule, "the mailbox rule," determines the time of closing of a contract
made by mail. If an offeror sends an offer by mail to an offeree, and
does not indicate in the offer when the acceptance becomes final, the
acceptance is final and the contract is closed when the acceptance is
mailed by the offeree."7 The only policy served by this rule is that of
finality. Its virtue lies in its assignment to the offeror of the responsibili-

16. U.S. CONST. art. II,§ 1, c1. 5.

17. RESTATEMENT (SECOND) OF CONTRACTS § 63(a) (1981).
19931 AMERICAN CONFLICTS LAW

ty for setting the terms of finality, and takes effect only if the offeror
does not do so.
Against this background, we come to the choice of law problem:
What policies are served by choice of law rules? What purpose guides a
court or a legislature in the formulation and development of choice of
law rules?

C. Sovereignty and Functionality in American Conflict of Laws

There are at least three reasons for choice of law rules: First,
there must be some way to determine how to resolve a dispute which
arises from transactions touching more than one jurisdiction. Second, it
is desirable that interstate transactions, like transactions fully local to a
particular state, be carried out in a predictable and understandable legal
context. Ideally, choice of law rules should provide a constant legal
context for the resolution of disputes arising from such transactions,
without regard to the location of the forum. Finally, choice of law rules
should give effect to the limits on the authority of states to regulate
conduct.
These reasons form a rather thin basis for formulating and ap-
plying choice of law rules for the United States-especially in the con-
text of legal realism, which insists on a teleological development of
legal norms. The first purpose to be served by choice of law rules sim-
ply requires that there be some choice of law rule. One such rule might
be that the law of the forum always applies, and that, to the extent that
the forum may not apply its own law, its court will not hear the case.
The second reason for such rules-assuring predictability of result in
commercial disputes-is served only to the extent that all states in
which a lawsuit arising from a transaction can be brought apply the
same choice of law rules in the same way. The likelihood of that hap-
pening is quite slender, given the lack of any central national authority
for revising choice of law judgments. Finally, the function of restraining
the extension of state legislative authority is easily honored in the Unit-
ed States by the relatively weak requirement that there be some tradi-
tionally acceptable relationship between the facts of a case and the terri-
tory of the state.'.
Perhaps there is a fourth reason for choice of law rules-the
promotion of harmony among, and adequate respect for, the sovereignty

18. Of course, it is another thing to determine just what that relationship is.
See Allstate Insurance Co. v. Hague, 449 U.S. 302 (1981); Phillips Petroleum Co. v.
Shutts, 472 U.S. 797 (1985); Sun Oil Co. v. Wortman, 486 U.S. 717 (1988).
 SAINT LOUIS UNIVERSITY LA W JOURNAL [Vol. 37:391

of states, or, as the Restatement (Second) Conflict of Laws puts it, "the
smooth functioning of the interstate and international systems." 19 But,
as was seen, the concept of separate state sovereignty is relatively weak
in the United States. What serves the needs of our federal system of
states depends on how one identifies those needs, and how one deter-
mines the way in which those needs are best met. Any assertion about
ends and means in this context is controversial, and any discussion of
the needs of the Federal Union normally refers to the various provisions
of the Constitution which limit state authority, and to the statutes by
which the United States Congress defines and furthers provisions of the
Constitution.
The impact of all this uncertainty is mitigated somewhat by the
great degree of similarity between the legal systems in the United States.
Conflicts cases arise at the margins, where there are real differences
between substantive rules governing the outcome of particular controver-
sies. With a few substantial exceptions, such as Texas, Louisiana and
California, the law governing transactions between people arises from a
common English ancestor. There are statutory variations, but for the
most part, the risk that a state's view of how a transaction and its out-
come should be viewed will be disregarded by a court in another state
does not pose much of a threat to the integrity of the former state's
legally regulated social order.
II. CHOICE OF LAW IN THE UNITED STATES

In the early days of our republic, the States of the United States
settled on a system of conflict of laws based on comity among territori-
al sovereigns. By this approach, no state or nation could, by its laws,
purport to affect directly the rights of persons resident of, or title to
property situated in, another sovereign state or nation. The laws of one
country have only such force in another as the courts of the latter are
willing to give them. The question, as Joseph Story put it in his Com-
mentaries on the Conflict of Laws,2" was how to develop principles by
which the exercise of comity should be regulated. Story's approach,
based on tradition and reason, offered itself as one, but not necessarily
the only, possible way in which a system of choice of law could be
established in a way which would respect and maintain orderly relations
among sovereign territorial states.
Story's approach, which depended on comity and arose from
mutual regard for territorial sovereignty of states, gave way in the early

19. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § I cmt. c (1969)

20. JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS (1846).
. 19931 AMERICAN CONFLICT LAW

Twentieth Century to an approach founded on the idea that choice of

law was not a matter of comity, but rather one of compulsion. Rights
acquired under the law of one state were entitled to protection in every
state.2 Justice Oliver Wendell Holmes, Jr. called such a right an obli-
gatio which, once it came to life, followed the holder wherever he or
she chose to go.2" Professor Joseph Henry Beale transformed -this' obli-
gatio into a vested right, and offered a system of conflict of laws based
on the idea that rights vested under the law of the state in whose terri-
tory the last legally significant event in the creation of this right oc-
curred.23 In 1934, this vested rights theory became enshrined in the
American Law Institute's first Restatement of Conflict of Laws.24
According to Beale's approach, tort liability was governed by
the law of the place of the injury, and not the place of the conduct
causing the injury. That is because the last event necessary to the cre-
ation of tort liability was injury. Contractual liability, on the other hand,
had two references. One the one hand, whether there was a contract
depended on the law of the state in which the last act in the creation of
the contractual relationship occurred. On the other hand, whether there
was breach giving rise to damages, or whether 'there was excuse from
performance, depended on the law of the place of performance. This dif-
ference between tort and contractual liability may make sense for deter-
mining when the period of limitations should begin to run, but it is
truly puzzling when the question is one of the existence and breach of a
duty.
Functioning within the vested rights theory depended on finding
the connecting factor-that event which connected the case to a single
state whose law must be applied. This connecting factor was found by
determining the last legally significant event for liability. Notice, howev-
er, that this determination is itself a question of law. How does one
know what the last act is to produce contractual or tort liability without
first referring to some law of torts or contracts? Beale's answer, and one
which was accepted for almost a quarter of a century was this: There is
a general common law of torts, contracts, etc. which provides the basic
principles for all legal relations in the United States. If in doubt, the
judge should consult the first Restatement of Conflict of Laws, which

21. These rights include both a claim against another and freedom from such a
claim.
22. Slater v. Mexican Nat'l R.R., 194 U.S. 120, 126 (1904).
23. 3 J.H. BEALE, TREATISE ON THE CONFLICT OF LAWS § 73 (1935) [herein-
after BEALE].
24. RESTATEMENT (FIRST) OF CONFLICT OF LAWS (1934).
 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 37:391

captures the essential rules of this law as they relate to choice of law.
The 'general common law,' then, provides all the information necessary
to determine what the last act is, in general, to impose liability. That is,
Beale depended for his rules of choice of law on a real (in a Platonic
sense) legal system, external to any on Earth,, which provided the true
model of liability rules. Of course, Beale might have insisted that all
multi-state cases be governed by liability rules drawn from that perfect
model, the 'general common law.' Why settle for second best?
The idea of a 'general common law,' which lay at the founda-
tion of the vested rights approach to conflict of laws, came under sus-
tained attack by, among others, Justice Oliver Wendell Holmes, Jr.,
father of the obligatio theory of choice of law. The demise of the gen-
eral common law as a matter of federal jurisprudence occurred in 1938,
in the case of Erie Railroad Co. v. Tompkins.25 Justice Brandeis wrote
for the majority that there is no "federal general common law" 26 and
that the only law in the United States was the positive law of the feder-
al or state governments. This decision, and the sustained attacks of
scholars during the 1940s and 1950s, cut the philosophical legs from the
"vested rights" theory of conflict of laws.27 But American judges are
not particularly philosophical. If an approach to law works, in the sense
that it settles questions in a fair, .predictable and uniform way, then it
does not particularly matter if that approach has no legs.
Years of application of the "vested rights" approach showed that
this territorialist approach did not really work in the way it was sup-
posed to in order to make decisions in conflict of laws cases predict-
able, uniform, and certain, without regard to the court in which they
were rendered. Courts working with the Restatement's rules produced an
assortment of devices by which the seemingly clear and mechanical
rules could be evaded. The vested rights system of choice of law de-
pended on characterization of the case as having a particular legal clas-
sification. A case might be characterized as one in contract rather than
tort, so that the law of the state in which the relationship was formed
would set the terms for liability, rather than the law of the state of the
injury.2S For example, a suit between a husband and wife or child and
parent, all of whom live in state A, arising out of an automobile acci-

25. 304 U.S. 64 (1938).

26. Id. at 78.
27. See EuGENE F. SCOLES & PETER HAY, CONFLICT OF LAWS § 2.5 (1982).
The most telling blows were struck .by Walter Wheeler Cook in THE LOGICAL AND
LEGAL BASES OF THE CONFLICT OF LAWS (1942).
28. See, e.g., Levy v. Daniels U-Drive Auto.Renting Co., 143 A. 163 (1928).
19931 AMERICAN CONFLICTS LAW

dent in state B, could be characterized as a torts case or a domestic

relations case, depending on whether the court wanted to apply the law
of the state of the injury or that of the family domicile.
Another way around the strictures of the first Restatement was
renvoi. A court might hold that the choice of law reference to the place
of contracting or injury or the domicile of the parties was to the
"whole" law, including the conflict of law rules, of that. state. If there
was a difference between the choice of law rules of the forum and those
of the referent state, the court could thereby avoid the results decreed by
the laws 29of the state whose law would have applied under the Re-
statement.
Two other methods by which the result of a conflict of laws
case could be tailored to produce a desired result were the manipulation
of the line between substantive and procedural rules, and the definition
of public policy. Procedural rules are always taken from the law of the
forum." Laws contrary to the forum's public policy need not be en-
forced in the forum.31
Despite its philosophical baselessness and its susceptibility to
judicial subterfuges and tricks which deprive it of uniformity and pre-
dictability of result in multi-state cases, between twenty and thirty per-
cent of the states still claim to follow Professor Beale's vested rights
theory.
During the reign of the first Restatement, other approaches to
choice of law were being adopted for particular areas of the law. In
many states, for example, the validity of a contract was affirmed if it
was validated by either the law of the place of the contract's formation
or the law of the place of performance.3 2 In other states, the question
was decided by the law of the place which the parties intended (or were
found to have intended) to govern that question.33 Transfers of property
in trust were often upheld if the law of some connected state would
uphold them.3 As exceptions to the regime of the vested rights theory

29. See In re Schneider's Estate, 98 N.Y.S.2d 652 (1950); Richards v. United

States, 369 U.S. 1 (1962).
30. This did not always work. 'See Home Insurance Company v. Dick, 281
U.S. 397 (1930).
31. A controversial example of this dodge is Kilberg v. Northeast Airlines,
Inc., 172 N.E.2d 526 (1961).
32. See, e.g., Pritchard v. Norton, 106 U.S. 124 (1882).
33. See, e.g., Seeman v. Philadelphia Warehouse Co., 274 U.S. 403 (1927);
Hutchison v. Ross, -262 N.Y. 381 (1933); Siegelman v. Cunard White Star, Ltd., 221
F.2d 189 (2d Cir. 1955).
34. See generally Hutchison, 262 N.Y. 381 (1933).
 SAINT LOUIS UNIVERSITY LA W JOURNAL [Vol. 37:391

of conflicts of law grew in number and frequency of use, and one state
after another sought alternatives to this system of choice of law in par-
ticular kinds of cases, three new approaches emerged and competed for
attention. One new approach was really a very old one-a search for a
center of gravity or seat of a transaction, and the application of the law
of that state to disputes arising out of it. A second method was offered
by a former state supreme court justice, Professor Robert Leflar. He
proposed that the governing law be the one which best fit five criteria
for choice. 35 One of these considerations was that, other things being
equal, the better law should be applied. The third way of resolving
conflicts was invented by Professor Brainerd Currie, and is called "gov-
ernmental interests analysis." Central to his idea was the assertion that
each rule of law embodied some policy of the state for which that rule
was adopted. To the extent that the forum state's policies would be
substantially furthered by the application of that state's law, the forum's
law should be applied. That is, the state had a governmental interest in
the application of the forum's law to the extent that the application of
that rule of law to a particular case furthered the policies underlying the
rule. This approach explicitly rejected the search for a single choice of
law solution for each case, without regard to the forum.
As an example of how these approaches might work, consider
the case of a contract entered into by a wife to guarantee the payment
of a loan made to her husband.36 The married couple is from state A,
the loan is made by a bank in state B. The loan application was accept-
ed in state B and the money was paid there. Under the law of state B,
a wife may not guarantee the payment of her husband's contracts. The
bank brings suit against the wife on her guarantee, after her husband de-
clares bankruptcy.
Under the first Restatement of Conflict of Laws, it should not
matter in which state suit was brought. Any court would have held that
the wife was free of any obligation to the lender. That is because the
last act necessary to establish her liability as a guarantor occurred in B.
On the other hand, in many states which purported to follow the first
Restatement, it is likely that the tendency to validate fairly entered-into

35. These "choice-influencing considerations" are set out in ROBERT A.

LEFLAR, LUTHER L. McDOuGAL, Il, ET AL., AMERICAN CONFLICTS LAW (4th ed.
1986) §, 95. For an application of these choice-influencing considerations, see
Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973); Conklin v. Homer, 38
Wis.2d 468, 157 N.W.2d 579 (1968).
36. This case is based on University of Chicago v. Dater, 277 Mich. 658, 270
N.W. 175 (1936).
1993] AMERICAN CONFLICTS LAW

bargains, which guided many courts during the dominance of the first
Restatement, could result in the wife's being held to her obligations. 7
The grouping of contacts or "center of gravity" approach would
look for the state where the transaction was "centered." 38 Unfortunate-
ly, no one knew what contacts would count, or how each should be
weighed. Usually, contacts which were important under the first Restate-
ment were accepted without question. But other contacts crept into the
picture, too. Where was the contract negotiated? Where was the bank
incorporated? Why not also ask: Where did the husband buy his sus-
penders? Where did the wife like to vacation? Where did the lender
have its business cards printed? Since there was no theoretical basis for
accepting a contact, any contact would do. This approach was not long
in favor. All that can be said is that, if the suit on the guarantee were
brought in A, state A probably would have applied B's law, and if it
were brought in state B, A's law would likely be applied.
Now, consider the problem in the light of Professor Currie's
governmental interests analysis. Assume that suit is brought in state B.
State B could find that its rule prohibiting wives from guaranteeing
loans to their husbands" was adopted in order to protect wives from
pressure by their husbands. The wife in question, however, is from state
A, which gives her no such protection.
The state B court could find, then, that there is, in fact, no
conflict between the law of state A and that of state B. Both states
favor the performance of contracts and the payment of just claims. B
has made an exception to protect wives, but that protection extends only
to wives from state B. In that case, the only law governing this case is
state A. It is a false conflict, because, as to this wife, states A and B
have the same law.39
Two things should trouble one about this analysis. First, it is
difficult to understand just how a court would determine the purpose of
its rule invalidating wives' guarantees of husbands' loans, in the context
of choice of law. Courts normally consider the purpose of such rules
only in domestic context. In that context, we can assume with safety
that the purpose of the rule is to protect wives. Which wives? Even if
it's initial purpose was to protect only wives who live in B, its applica-

37. See Poole v. Perkins, 126 Va. 33, 101 S.E. 240 (1919).
38. See Auten v. Auten, 124 N.E.2d 99 (1954).
39. Cf.Professor Currie's treatment of Milliken v. Pratt, 125 Mass. 374 (1878)
in Married Women's Contracts, A Study in Conflict-of-Laws Metho4 25 U. CHI. L.
REv. 227 (1958) reprinted in BRAINERD CURRIE, SELECTED ESSAYS ON THE CONFLICT
OF LAWS 77 (1963).
 SAINT LOUIS UNIVERSITY LA W JOURNAL [Vol. 37:391

tion in this case could make sense. The policy behind the prohibition
could be furthered by regulating lending practices to exclude reliance on
such guarantees. In addition, discrimination against wives who live out-
side B (by denying them the protection that wives who live in B re-
ceive, solely because of their domicile) may violate the Privileges and
Immunities Clause of Article IV of the Constitution of the United
States, and perhaps the Equal Protection Clause of the Fourteenth
Amendment as well.'
If the example is changed just a bit, one can see another aspect
of the governmental interest analysis. Assume now that the law of state
A, the home of the borrower and his wife, made it unlawful for a mar-
ried woman to guarantee her husband's loans, and that the law of state
B contained no such prohibition. The policies of each state would be
served by the application of its law-A would protect the wife by its
law, and B would protect the lender by its law. That is a true conflict,
to which there is no solution under'the governmental interest analysis.4
There are other refinements to this approach and many variations which
have as their purpose the resolution of true conflicts in a way which
other states will accept, but time does not allow me to develop this
further.42
Professor Leflar's choice-influencing considerations also let the
court manipulate the choice of law process to achieve a desired out-
come. These considerations, or criteria of choice are: (1) predictability
of results; (2) maintenance of interstate or international order; '(3) simpli-
fication of the judicial 'task; (4) advancement of the forum's governmen-
tal interests, and (5) application of the better rule of law. 43 Because
predictability of results is important in contract cases, the first criterion

40. This charge-that reliance on domicile as a basis for discrimination brought

governmental interests analysis into direct conflict with these anti-discrimination provi-
sions-was made by Professor Douglas Laycock in Equal Citizens of Equal and Ter-
ritorial States: The Constitutional Foundations of Choice of Law, 92 COLUM. L. REV.
249 (1992).
41. This is not entirely correct. Governmental interests analysis as Prof. Currie
set it up, has a "fall-back" position. When there is no single applicable rule, the
forum applies its own. Brainerd Currie, Notes on Methods and Objectives in the Con-
flict of Laws, 1959 DUKE L. J. 171 (1959), reprinted in BRAINERD CURRIE, SELECTED
ESSAYS ON THE CONFLICT OF LAWS (1963).
42. The most attractive variation seems to be that invented by Professor Wil-
liam Baxter in Choice of Law and the Federal System, 16 STAN. L. REV. 1 (1963).
This approach was criticized by a devotee of governmental interests analysis in Leo
Kanowitz, Comparative Impairment and Better Law: Grand Illusions in the Conflict of
Laws, 30 HAST. L.J. 255 (1978).
43. See supra note 34.
19931 AMERICAN CONFLICTS LAW

would be applied. If there were a choice of law clause in the loan

agreement, that clause would be honored. But in the absence of such a
clause, Professor Leflar would refer to the practice of courts to validate
contracts, and say that upholding contracts furthers predictability of
results. The second and third criteria are unimportant. It is easy to see
that commerce between state A and B is not in peril, nor is the integrity
of the Union endangered here. The governmental interests of the forum,
something Professor Leflar borrowed from Professor Currie's interest
analysis, is hard to understand. In the first example, the forum has an
interest in allowing the payment of debts, but has already said that
wives ought not have to pay for their husbands. Leflar also insists that
governmental interests is broader than Professor Currie's particularistic
standard would allow." He would include in a state's governmental
interests that of preserving the integrity of interstate relations (which
was covered by the second criterion), and furthering commerce among
the states (reinforcing the first criterion). Finally, he would seek the
better law. Rules prohibiting wives from guaranteeing their husbands'
loans are relics of a bygone era. Therefore, the better law must be the
law which protects the lender. I invite you to use these same criteria for
discovering that the law which protects the borrower should apply. I
guarantee, it can be done.
From these three approaches arose what is today the dominant
source of rules of choice of law for most of the states-the American
Law Institute's Second Restatement of Conflict of Laws. This second
Restatement is a superb example of the limits of compromise. It began
as an attempt to derive specific rules from the grouping of contacts ap-
proach to choice of law. That is, it indicated whit the important con-
tacts were between a transaction, the parties, and a state. The state with
the most important contacts was the state whose law was to govern the
decision of the case. The importance of the contacts apparently depend-
ed on their place in the list of contacts which were to be counted. Later,
the American Law Institute modified this specified grouping of contacts
approach with a list of choice influencing considerations i la Leflar; but,
where he had five such criteria for choice, Section 6 of the new Re-
statement listed seven, one of which must have sounded familiar to
those who still liked Professor Beale's 'general common law.' The fifth
criterion of Section 6 is: "the basic policies underlying the particular
field of law."45 If there is no Platonic rule of law out there, there is,

44. ROBERT A. LEFLAR, LUTHER L. MCDOUGAL, EI, ET AL., AMERICAN CON-

FUCTS LAW (4th ed. 1986) § 106.
45. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6(2)(e) (1967).
 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 37:391

at least for those who love the Restatement, a Platonic concept of a

field of law. It is also noteworthy that governmental interests are men-
tioned not once, but twice-once each in the second and third criteria.
The rest of the Restatement is a collection of rules which pro-
vide a normal rule of reference, many of which are unsurprising to
those who still like the territorialism of Joseph Story and Joseph Beale.
In most cases, however, each normal rule of reference is subject to
challenge with respect to its application in each case, based on the dis-
tribution of contacts and the weight of those contacts as assigned them
by Section 6. In my opinion, the best use of the Second Restatement is
as a kind of tie-breaker. If governmental interest analysis (which, recall,
is made relevant by Section 6) does not provide an answer, then the
normal rules of the Second Restatement will provide an arbitrary solu-
tion.
I. CONCLUSION

This is choice of law in the United States. It is not especially

pretty for those who love order and security. Much of its messiness is
made bearable by the widespread use of choice-of-law and choice-of-
forum clauses in contracts. This leaves the law of torts as the chief area
of complaint. But these complaints are theoretical, only. They are weak-
ened in the real world by our generous rules about jurisdiction. In most
cases, one can be assured that the plaintiff will bring suit in a state
which will apply the law most favorable to him or her.