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.
'Hard' or 'Soft' Pluralism? Positive, Normative, and Institutional Considerations of States' Extraterritorial Powers
This article is an invited commentary to an extremely thought-provoking address delivered by Richard H. Fallon, Jr., that addressed unexpected consequences that would follow a reversal of Roe v. Wade. The article addresses the question of states' extraterritorial powers, and asks whether Mary, a citizen of a state that prohibited abortions (let's say Utah), could be barred from obtaining abortions in a state (let's say California) in which abortions were legal. The Article makes seven points in relation to this question. Its observations are relevant not only to the unlikely event of Roe's demise, but also to a non-trivial class of constitutional state laws that can be circumvented if a citizen can cross his state border and avail himself of his neighboring state's less restrictive laws. This class includes restrictions on gambling and assisted suicide, mandatory motorcycle helmet laws, and even laws regulating agricultural goods. The first four points are doctrinal. First, contrary to many people's strong intuitions, states in our country's federal union generally do have the power to regulate their citizens' out-of-state activities. Second, although states enjoy general extraterritorial regulatory powers, particular regulations can run afoul of constitutional principles concerning interstate relations that are found in the right to travel, Article IV's Privileges and Immunities Clause, and the Fourteenth Amendment's Privileges or Immunities Clause. Third, Utah's effort to regulate Mary would not be precluded under any of these doctrines as they currently are understood by the United States Supreme Court. Fourth, current doctrine nevertheless cannot be presumed to be stable because, among other reasons, there has not been a sustained practice of such state extraterritorial regulations that has received attention from legislatures, the public, and the courts. The remaining three points are normative and institutional. The fifth point is that answering the doctrinal question of whether Utah can regulate Mary's California travels invariably will turn on normative considerations because the question is not answered by clear constitutional text, longstanding tradition, or precedent. The sixth point clarifies the normative question that is presented by Utah's regulatory attempts in relation to Mary. It also demonstrates that whether Utah should have such extraterritorial powers is an exceedingly difficult question that goes to the heart of the meaning of state citizenship and national citizenship and, ultimately, to the nature of our country's federal union. Why? It is widely recognized that, with regard to those policies that neither the Constitution nor federal statutory law demands national uniformity, states may take different regulatory approaches. Not infrequently, however, a state will be unable to accomplish its constitutionally legitimate goals if its citizen can free herself of her home state's regulation simply by walking into a state that does not so regulate. If states do not have the power to regulate so as to preclude travel-evasion of their constitutional policies, then the extent of the pluralism of state policies possible under our federal union is, as a practical matter, quite limited in relation to the non-trivial class of policies that are vulnerable to travel-evasion. Call this a regime of soft pluralism. By contrast, a federal system in which Utah can prohibit Mary from obtaining an abortion in California would be a regime of hard pluralism in which states can efficaciously regulate across the entire range of matters with respect to which federal law does not demand nationwide uniformity. To be clear, this Article does not seek to definitively resolve the choice between soft and hard pluralism, but only aims to show that the choice is a difficult one and that much rides on how the question is resolved. The Article's seventh, and final, point is largely institutional: what societal institutions should make the choice between soft and hard pluralism? Though the Article's doctrinal analysis establishes that our country presently has a regime of hard pluralism in which each state generally can choose whether it wishes to extraterritorially regulate its citizens, point seven makes clear that these state decisions may be legislatively reversed by Congress. Congress has the power to determine the scope of state extraterritorial powers under the Full Faith and Credit Clause's Effects Clause, Section Five of the Fourteenth Amendment (in relation to what qualifies as a privilege or immunity of national citizenship), the Commerce Clause, and possibly Article IV's Privileges and Immunities Clause. Point seven further argues that Congress properly has a privileged role in answering such questions because it has institutional advantages vis-a-vis both states and the federal courts in deciding the scope of state extraterritorial regulatory authority and in thereby determining the nature of state and federal citizenship and the resulting character of our federal union.
Protecting the Constitution from the People: Juricentric Restrictions on Section Five Power
In Board of Trustees of the University of Alabama v. Garrett, the Court held that Congress can not exercise its power under Section 5 of the Fourteenth Amendment to enact legislation enforcing the provisions of the Fourteenth Amendment unless Congress first identifies a history and pattern of judicially redressible constitutional violations. Garrett rests on the premise that the Constitution is a legal document that speaks only to courts. This essay criticizes this "juricentric" view of the Constitution, which in the years since City of Boerne v. Flores has come increasingly to shape the Court's Section 5 jurisprudence. We argue that the Constitution is not an exclusively legal document. The Constitution also possesses significant political dimensions, because it expresses the nation's understanding of its defining values and commitments. To interpret the Constitution is therefore to exercise both legal and political authority. The Court must exercise what Brandeis called "statesmanship" in order to mediate the tension between these two forms of authority. The Court's recent Section 5 cases overturn more than a generation of such statesmanship, in which the Court crafted doctrine that gave substantial leeway to the political branches of government to interpret constitutional rights without compromising either judicial review or judicial supremacy. Virtually the same Court that decided Cooper v. Aaron also decided Katzenbach v. Morgan, which deferred to congressional efforts to exercise its power under Section 5. In the period between 1964 and 1997, the Court systematically blurred the relationship between statutory and constitutional standards, so that the Court could simultaneously affirm Section 5 legislation without committing itself to any definitive interpretation of Section 1 of the Fourteenth Amendment. In this way, the Court could encourage the participation of the popular branches of the federal government in the creation of constitutional culture, which in turn profoundly influenced the Court's own understandings of the Fourteenth Amendment. The Court's recent Section 5 jurisprudence suppresses this important dialogue between the judiciary and the popular branches of the federal government.