Choice of Law and Constitutional Rights

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choice of law (also called conflict of laws or conflicts law) is a body of legal doctrine that seeks to provide a basis for choosing a substantive rule (for example, in tort or contract law) over the conflicting rule of another place. Rules conflict when their applications would produce opposing results in the same case, and when the relation of each place to the controversy makes it plausible for the rule of either place to govern. Conflicts law is usually state common law, applied either by state courts or by federal courts in exercise of the latter's diversity jurisdiction.

Courts periodically engage in conflicts localism. That is, they choose local state substantive law when the forum state's relation to the controversy is clearly less important than that of the place providing conflicting law. These decisions unfairly damage nonforum litigants, exhibit disrespect to nonforum governments, and undermine principles of order and uniformity in the law. The full faith and credit clause, the due process and equal protection clauses of the fourteenth amendment, the commerce clause, and the privileges and immunities clause of Article IV could in various ways be read to protect these interests. But the Supreme Court rarely intervenes under the Constitution.

The Court makes serious use of only the first two of the clauses listed above, merging them into a single test. According to Allstate Ins. Co. v. Hague (1981), "[F]or a State's substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair."

Applying the Hague test in Phillips Petroleum Co. v. Shutts (1985), the Court held unconstitutional the attempt of Kansas courts in a nation-wide class action to apply local law to some claims that had no connection with the state. Despite the result, the Court's analysis in Shutts reinforced its minimalist view of the Constitution in choice of law. The Court deemed Kansas to have failed the combined full faith and credit and due process test only after concluding that Kansas had no interest in regulating the claims and that application of Kansas law to the claims would disturb the reasonable expectations of the defendant. Not only do state and lower federal courts remain free to apply local substantive law when demonstrating state interest, however modest, in determining the merits of the controversy; they may be free to apply their law even when the state has no such interest, when there is no showing that such would disturb the reasonable expectations of a party.

Commentators have criticized the Court's reluctance to correct conflicts abuse, and they have offered a variety of constitutional theories for more extensive oversight of choice of law. Yet the Court's restraint may be defensible. Constitutional justifications for greater Supreme Court intervention share so fully the mainstream values of choice of law that, should the Court begin to give serious weight to the former, it might be unable to find a logical stopping point short of constitutionalizing the entire subject—an option the Court has disdained.

Gene R. Shreve


Laycock, Douglas 1992 Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law. Columbia Law Review 92:249–337.

Reese, Willis L. M. 1978 Legislative Jurisdiction. Columbia Law Review 78:1587–1608.

Shreve, Gene R. 1996 Choice of Law and the Forgiving Constitution. Indiana Law Journal 71:271–296.

Weinberg, Louise 1982 Choice of Law and Minimal Scrutiny. University of Chicago Law Review 49:440–488.