Choice-of-Law as Non-Constitutional Federal Law
Domestic choice-of-law is widely bemoaned for being a chaotic mess, with states using a half dozen different approaches. But if we praise ‘our federalism’ for allowing states to adopt divergent laws that best reflect their citizens’ distinctive values, why are different tort and family laws across states normatively acceptable but not choice-of-law? In fact, the Supreme Court treats all three bodies of law the same, having ruled in the 1941 Klaxon decision that choice-of-law is state law that appropriately varies from state to state.This Article argues that today’s disorder in choice-of-law is traceable to a largely overlooked conceptual mistake in Klaxon — the assumption that choice-of-law is state law — and that Klaxon must be overruled. Choice-of-law was not viewed as state law for most of our country’s history, but long was conceptualized as a subset of the “general commercial law” of private international law, which was neither state nor federal. Cross-state uniformity was one of the general law’s signal characteristics, and expectations of uniformity extended to choice-of-law. After Erie declared “[t]here is no federal general common law,” what had been understood to be general law had to be parceled out into one of the categories of law Erie recognized as legitimate. There were two main options — state and federal — and Klaxon put choice-of-law into the box of state law. The Article provides four arguments as to why choice-of-law is best understood to be federal law, not state law. The first argument is an amalgam of history and functional analysis: in a post-Erie world in which all law must be attributed to a sovereign, choice-of-law must be federal because only federal law can satisfy what I call choice-of-law’s “Single System Requirement.” To explain, while choice-of-law presupposes variations across states in the substantive law to which it applies, choice-of-law cannot effectively serve its managerial function of predictably determining which state’s law applies if choice-of-law itself varies across states. This gives rise to the Single System Requirement: all polities whose differences in substantive law give rise to the need for choice-of-law must use the same choice-of-law rules. While general law satisfied the Single System Requirement before Erie, only federal law can fulfill the Single System Requirement after Erie. The Article also advances three conceptual arguments for its claim that choice-of-law is inherently federal. First, at its core, choice-of-law sorts out conflicts between states’ overlapping regulatory powers, a federal role by its very nature. Second, choice-of-law plays a substantial role in determining the character of our federal union; choice-of-law plays a crucial role in determining to what extent states can, as a practical matter, have divergent substantive laws in fields that federal constitutional and statutory law does not demand national uniformity. Third, choice-of-law plays a crucial role in maintaining the health of our interstate system. State law is unsuited to discharging these three tasks, whereas federal law is the most functionally appropriate and democratically legitimate resource for accomplishing them. The Article also makes the positive doctrinal case for its claim that choice-of-law is federal law. The Full Faith and Credit Clause’s “effects clause” grants Congress the power to enact choice-of-law rules for state courts, and the Diversity Clause authorizes Congress to create choice-of-law rules for federal courts. Because choice-of-law must be federal law, Klaxon’s dramatic break with the past — its holding that choice-of-law is state law that can vary across states — must be overruled. To be more precise, the Article argues that a post-Klaxon amendment to the Full Faith and Credit Act is best understood as having partially overturned Klaxon, and as currently providing a statutory basis for the development by state courts (and possibly federal courts too) of a single body of federal choice-of-law that is applicable in all courts. But Klaxon unquestionably impairs the effectiveness of a second federal statute, the Rules of Decision Act, which provides clearer authorization than the Full Faith and Credit Act for federal courts to create a body of choice-of-law — yet another reason Klaxon should be overruled. The Article argues that the Full Faith and Credit Act and the Rules of Decision Act are best understood as imposing obligations consistent with the Single System Requirement: the two statutes require that the same federal choice-of-law rules be operative in state and federal courts. The statutes do not detail what those choice-of-law rules would be, but — like the antitrust laws — delegate courts the authority to flesh out choice-of-law rules on a case-by-case basis. The understanding that choice-of-law is federal provides considerable guidance in formulating choice-of-law rules. And because Congress has ultimate authority over choice-of-law, it always can legislatively revise judicially created choice-of-law doctrines — even those of the Supreme Court.
Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case
Crucial to the Court’s disposition in the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which Congress never had considered and nobody thought would ever be enacted. For the five Justices who concluded the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to offer an adequate explanation for why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable.This Article argues that the fact that all the Justices insisted on providing a limiting principle – which was the demand underlying the broccoli hypothetical – was perhaps the most notable, precedent-breaking aspect of its landmark decision. As the Article shows, when confronted with novel constitutional questions the Court almost always uses narrow, “localist” reasoning that analyzes only the government’s actual action. Indeed, the Court ordinarily explicitly declines to provide a limiting principle until it has heard several cases from which it can confidently deduce one. The Article provides the first comprehensive analysis of how, and why, the broccoli hypothetical ultimately proved so deeply consequential. Outside the courts, where the constitutionality of the mandate was robustly debated, the broccoli hypothetical served to highlight the potential liberty costs of the Act. In the courts – where, strictly speaking, the doctrinal question involved not personal liberty but congressional power – broccoli ensured that liberty costs would be a significant element of the constitutional analysis, and it also generated a perceived need to identify a limiting principle. In short, broccoli was a critical bridging mechanism that brought together a popular constitutional movement mobilized against the Affordable Care Act and the constitutional challenge taking place in the courts. We conclude with a normative assessment of this kind of relatively direct extrajudicial influence on the courts. We argue that while popular constitutional theory might justify the majority’s novel liberty-centered approach to congressional power, it cannot warrant the Court’s unusual break from localist legal reasoning. The Court’s premature engagement with limiting principles bypassed the benefits of its ordinary incremental, case-by-case analysis, and circumvented institutional synergies that can generate superior and more democratically legitimate outcomes when courts and legislatures work together, over time, to flesh out constitutional judgments.
Popular Constitutionalism and the Underenforcement Problem: The Case of The National Healthcare Law
Contemporary constitutional theory distinguishes between constitutional meaning and the doctrines that courts develop to enforce that meaning. This conceptual gap recognizes the possibility that, at any given time, extant doctrine will "underenforce" particular constitutional norms -- that is, the doctrinal tests by which courts decide cases will not protect those norms to their full conceptual limits. This essay looks at the constitutionality of the Affordable Care Act (ACA) through the lens of underenforcement. I suggest that since 1937, constitutional doctrine has underenforced constitutional limits on the Commerce and Spending Clause, as well as (perhaps) principles of economic liberty. But underenforcement is historically contingent; in 1920, for example, extant doctrine enforced all those principles more rigorously while underenforcing others, such as equal protection and freedom of speech. I argue that popular constitutionalism influences which norms are underenforced at any given time. Historical changes in popular perceptions of the appropriate role of government, and the national government in particular, have encouraged underenforcement of limits on national power and principles of economic liberty. At the same time, the public's perception of the appropriate role of the Court also plays a role; hence, underenforcement in these areas arguably reflects the Court's sense that it had been overly aggressive in checking action by the political branches in the period leading up to 1937. But in the early 21st century, popular understandings may be changing on both these fronts. The Tea Party movement is just one manifestation of a wider sense that the role of government has limits, and the Court has regained much of its prestige by developing its role as protector of individual rights. The point is that what has changed once can change again. The healthcare law seemed obviously constitutional to many observers based on current doctrinal tests, but those tests themselves reflect contingent historical factors. Although this essay was written before the Court decided the ACA case, it anticipates the Court's willingness to reopen basic questions concerning the scope of judicial review on questions of national power.