il. . INTRODUCTION. . . CONFLICTS THEOR’ . DEFENDING THE THEORY: Two EXAMPLES . CONFLICTS AND THE CONSTITUTION THE MYTH OF CHOICE OF LAW: RETHINKING CONFLICTS Kermit Roosevelt III* TABLE OF CONTENTS A. Vested Rights: Joseph Beale B. Legal Realism: Walter Wheeler Cook . C. Interest Analysis: Brainerd Currie D. Current Theory . E. Methods and Objectives: What Interest Analysis Is, What a Conflicts Theory Should Be. RETHINKING THE THEORY: FRomM CHOICE TO A. Rights and Their Critics 1. The Failure of Vested Rights / Territorialism 2. Salvaging the Concept of Rights. B. Governmental Interests and Their Critics 1. The Weakness of Currie’s Approach 2. Salvaging the Concept of Interest. C. The Positive Account.......... 1. Thinking in Terms of Rights 2. Thinking in Terms of Conflict. A. The Unseen Conflict: Purely Domestic Cases .. B. The Easy Conflict: State Law vs. Federal Law .. C. Back to Choice? State Law vs. State Law. A. Introduction. B. The Two Clauses. 1. Full Faith and Credit. 2449 2454 2455 2458 2461 2466 2467 2471 2471 2472 2474 2477 2477 2479 2482 2482 2485 2488 2489 2493 2498 2503 2503 2511 2513 * Senior Research Scholar, Yale Law School; Resident Fellow, Information Society 2448 Project. A.B. 1993, Harvard; J.D. 1997, Yale. — Ed. I thank Bruce Ackerman, Akhil Amar, David Franklin, Allison Moore, Richard Primus, Stephen F. Williams for their patience and generosit into this article. Of course, none bears any responsibility for the results. samuel Rascoff, James Whitman, and discussing the ideas that developed‘August 1999) Rethinking Conflicts 2449 2. Privileges and Immunities ............++++++ 2516 VI. Towarp a CONSTITUTIONAL JURISPRUDENCE OF ConFiicts 2518 A. Rules of Scope and the Constitution: Two Myths . 2520 1. The Myth of the Unprovided-for Case 2520 2. The Myth of the False Conflict 2525 B. Conflicts Rules and the Constitution... 2527 1. Conflicts Rules and Law: Full Faith and Credit 2528 2. Conflicts Rules and Domicile: Privileges and Immunities 2530 C. A Final Wrinkle. 2533 VIL. Concrusion 2534 I. InrRopucTION Choice of law is a mess. That much has become a truism. It is a “dismal swamp,”! a morass of confusion, a body of doctrine “killed by a realism intended to save it,”? and now “universally said to be a disaster.” One way to demonstrate its tribulations would be to look at the academic dissensus and the hopelessly underdetermina- tive Restatement (Second) of Conflict of Laws. Another would be to examine the Supreme Court’s abdication of the task of articulat- ing constitutional constraints on state choice-of-law rules.5 This ar- ticle will do both. At the outset, though, I want to suggest that one need look no further than the nomenclature of the subject. I do not mean the arcane terminology — dépecage, renvoi, retorsion, false conflicts, comparative impairment, and unprovided-for cases — that falls liltingly from the tongues of conflicts scholars and crushes listeners into bemusement or horror. I claim instead that the con- ceptual difficulties of this field can be discerned at the broadest level of generality, in the dual names of the subject itself: “Choice of Law” and “Conflict of Laws.”6 1, William L. Prosser, Interstate Publication, 51 Mic. L. Rev. 959, 971 (1953). 2, Lawrence Lessig, The Zones of Cyberspace, 48 STAN. L. Rev. 1403, 1407 (1996). ;,,waian L. Reynolds, Legal Process and Choice of Law, 56 Mp. L. Rev. 1371, 1371 (1397). 4. See infra section ILD. 5. See infra section VILA. 6. Joseph Beale, whose theory of vested rights was received wisdom for the frst half of the twentieth century, considered the question of nomenclature sufficiently important to merit five sections of his treatise. See 1 Joseen H. Beate, A TREATISE ON THE ConFLicr OF Laws §§ 1.15-1.19 (1935). Beale admitted that “conflict of laws” was not “exactly accu- rate” and commented that “‘(tJhe only conflict is among the legal authors who are doing this2450 Michigan Law Review [vol. 97:2448, The mere existence of multiple monikers should not surprise. Areas of legal study often go by more than one name. The class called “Federal Jurisdiction” at one law school might be “Federal Courts” at another; the same is true for “Corporations” and “Busi- ness Organizations.” Sometimes these names are synonyms; other times the relation is obvious enough to need no explanation. Fed- eral courts exercise federal jurisdiction, and the study of one is the study of the other. Conflicts nomenclature is less transparent. An ordinary speaker of English might be puzzled to learn that “Choice of Law” and “Conflict of Laws” denote the same area. When laws conflict, one might think, the question is not which law should be chosen but rather which law prevails.” Legal training teaches us otherwise. When laws conflict, we learn, courts decide which law to apply. There is almost never a unique “right” answer to the question. More precisely, there is no right answer that can be articulated without adopting what Lea Brilmayer calls the “internal perspective”:? the perspective of a particular forum state. From the subjective perspective of a partic- ular forum, there may be a determinate answer, given by the choice-of-law rules of that state. But different states will give differ- ent answers about the same set of facts. If a case has contacts with a number of different jurisdictions, each may apply its own law if the case comes to its courts.? Thus the answer to the question “what law governs this case?”!° will often vary depending on the forum in which the suit is brought. This result may seem natural if we suppose that choice-of-law rules simply compose part of a state’s substantive law! Substan- work.” He continued, “‘[y]et since the expression is consecrated by good use and is simple we may well make use of it” Jd. § 1.19 (quoting Come DE VAREILLES-SoMMIBRES, LA Suremuese pu Dror INTERNATIONAL Prive xvii (1897)). Interestingly, Beale also mentions Eduardo Cimbali, who argued that the “false designation of the subject” had led scholars astray. Id. (citing EDUARDO Commas, Dr una Nuova CaTEGRICA DI CONFLITTI DE LEGGE (1892). 7. For precisely this reason Eugene Scoles and Peter Hay find fault with the phrase “Con- ict of Laws,” arguing that because forum choice-of-law rules will select a governing law, there is no conflict between laws. See Eucrne F. Scoves & Peer Hay, Conruicr oF Laws § 11 (2d ed. 1992). 8. See Lea Brimaver, ConFLicr oF Laws 1 (2d ed. 1995) (emphasis omitted). 9. See Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981) (plurality opinion). 10. One of my claims is that this is a counterproductive way of framing the question. See infra section IV.B. In fact, I will be changing a fair amount of what I find to be misleading terminology. At the moment, though, I am simply discussing the current understanding of conflicts. 11, See Nicholas deBelleville Katzenbach, Conflicts on an Unruly Horse: Reciprocal Claims and Tolerances in Interstate and International Law, 65 Yate LJ. 1087, 1099 (1956) (Gtating that the task of courts always “involves a choice of law”). Beale also held the posi-‘August 1995] Rethinking Confficts 2451 tive law differs from state to state, and states will reach different answers about the legal consequences of the same facts. Thus it is not surprising that a constellation of facts entitling the victim of a car accident to recover under the tort law of a state employing a negligence standard will not allow recovery under the gross negli- gence standard of another state. Similarly, one might think, it is not surprising that one state might conclude that the appropriate law is the law of the state where the accident took place, while another might look to the law of the victim’s domicile.12 This inconsistency arises from, essentially, Brilmayer’s “internal perspective.” One of the major goals of this article is to suggest that this way of viewing the choice-of-law problem is mistaken — not because the alternative that Brilmayer mentions, the “external perspective,” is correct,!3 but because the dichotomy itself is false and the internal perspective fails on its own terms. In fact, I will argue, conceiving of choice-of-law rules as substantive domestic law does not legitimize the variance of results across forums. It merely masks the illegitimacy, hiding the conflict between laws behind the veil of choice of law, and the veil does not stand up to analysis. To start seeing this, take a step back. Return to the purely do- mestic context and imagine a plaintiff who comes to court alleging that a wrong has been committed against him. He claims that some tion that choice-of-law rules were part of forum law; in fact, itis a necessary consequence of his principle that law can operate only within a state. See 1 BEALE, supra note 6, § 5.4, at 53 (“Conflict of Laws is part of the law of the forum. It is quite obvious that since the only law that can be applicable in a state is the law of that state, no law of a foreign state can have there the force of law. .. . The foreign law is afact in the transaction.”). Of course, he did not conclude that variance was therefore permissible; he found general organizing principles in the nature of law. Id. § 4.12, at 46. 1 think there is something different about choice-of-law rules, though it turns out to be essentially that they are so much a matter of federal concern as to be subject to severe consti- tutional strictures. (On my account, not the Supreme Court's. See infra Part V.) 12, In fact, variance between forums is more likely to take the form of each forum’s looking to its own law. This tendency, which Michael Green calls “lexforism,” is the deeply troubling aspect of disuniformity. See Michael S. Green, Note, Legal Realism, Lex Fori, and the Choice-of-Law Revolution, 104 Yate LJ. 967, 967 (1995). 13. The external perspective supposes that choice-of-law rules are uniquely determined by objective principles external to any state’s law and hence that each forum must reach the same conclusion, See BRILMAYER, stipra note 8 at 1. The theoretical approach that I advo- cate will destroy the dichotomy. The Constitution is, in an interesting way, both internal and external. It is internal in that, by virtue of the Supremacy Clause, itis part of the local law of each state. See, eg., Claflin v. Houseman, 93 U.S. 130, 137 (1876). It is external in that it imposes rules state law cannot change — again, by virtue of the Supremacy Clause. See, eg, Felder v. Casey, 487 U.S. 131, 138 (1988). And what I will suggest is that the Constitution dictates a mixed perspective — both internal and external. It does not require consistency across states, so that each state must adopt the same rules (the fully external perspective). Rather, it requires a sort of consistency within states, a lesser degree of freedom than that recognized by the internal perspective. This will surely seem cryptic, but a full explanation must await some ground-laying.2452 Michigan Law Review [Vol. 97:2448 law — here, let us assume local tort law — gives him a right to relief. The court may disagree with this claim. It may be that the law gives him no right on these facts, or that the law provides the defendant with a defense that precludes liability. Either of these determinations is an appropriate judicial decision. But what if the court simply refuses to consider his tort claim because, it says, con- tract law governs the case? This should seem odd.1* The plaintiff has asserted a right, and surely the court must either recognize that right or refuse to recognize it. Either he has stated a claim or he has not. To avoid this dichotomy by invoking a different law seems at best an oblique rejection of the plaintiff's claim, at worst a deci- sion based on something other than whether he has an enforceable tight.15 It seems, in short, that the court has made a choice, not resolved a conflict.16 The substitution of choice for conflict, I will argue, is the funda- mental error of conflicts jurisprudence.!7 It is an attempt to avoid difficult questions that succeeds only in resolving them sub rosa, and poorly. Conflicts between rights are a common feature of law- suits, and in most circumstances, the legal system deals with them as conflicts: courts look to rules specifying which right shall prevail, 14, Lam not objecting to the idea that a court may tell a plaintiff that, although he cannot recover in tort, he may recover in contract. Cf, BRAINERD Currie, Conflict, Crisis and Con- fusion in New York, in SeecteD Essays on THe Conruict oF Laws 650, 693-94 (1963) {hereinafter Setecrep Essays] (labeling as “anachronistic” criticizing a court for “tellfing] a litigant that though he cannot recover in contract he may in tort”). The problem I am con- cerned with arises when the plaintiff pleads in tort and the court refuses to evaluate the tort claim. 15. Courts do not ordinarily apply law not invoked by the parties. Affirmative defenses, for example, are waived if not raised at the proper stage. If the court refuses to honor the law the plaintiff pleads, I will suggest, it must be because that law is legally unavailable. And that means either that some other law operates to interfere with it, or that the law the plain- tiff invokes grants him no rights. 16. Of course, choosing one law effectively resolves the conflict between them: it awards victory to the chosen law. But it does so, we will see, without a consideration of the factors that should govern a resolution of the conflict. Identifying these factors is, of course, a diffi- cult task. Common policy considerations include predictability, discouragement of forum shopping, and the rather amorphous goal of fairness to litigants. These are certainly values that a system for resolving conflicts between sovereigns should seek to promote. My pre~ scriptions, when they come, will indeed seek to promote them. But they will not rest simply ‘on those values; instead, they will be drawn from another body of law aimed chiefly at meld- ing the several states into a federal union: the Constitution. Without the constraints I iden- states may succumb to the temptation to promote forum interests, slighting the concerns of other states. Within the constraints, states may do many things to promote the canonical conflicts values. But interstate discrimination needs to be addressed first; at this moment in our conflicts jurisprudence, it is the primary evil and the chief distraction from sound con- flicts rules. 17. Consequently, I will refer to the subject as “conflicts,” and continue to refer to “choice-of-law rules” where appropriate, My ultimate suggestion is that things will be clearer if we eliminate the idea of “choosing” a “governing” law, but that is a different stage of the rocket and must drop away later.‘August 1999) Rethinking Conflicts 2453 and then express their conclusions in such terms.1® In cases where the conflicting rights originate from different states, however, a dif- ferent description is employed. Courts speak not of deciding which tight prevails but of choosing which law applies to the case. This resort to choice-of-law rhetoric is peculiar for two reasons. First, it is unnecessary. Multistate cases can be described and resolved per- fectly easily within the vocabulary of conflicts.19 Second, it is de- scriptively inaccurate. Interest analysis (the choice-of-law methodology I will consider in the greatest detail) simply does not select the law that applies to a case2° The rhetoric of choice per- sists in part as a conceptual hangover from the early days of con- flicts theory,?1 but it also continues to allure because it makes less apparent the conflicts that have proven too hard to resolve? In- deed, the Supreme Court swiftly backed away from its initial bold interventions into state conflicts practices; more recently it seems to have given up entirely? Consequently, there is a temptation to deny problems we cannot solve, by framing the issue as one of choice. This article aims to show that things are not as bad as all that. Interstate conflicts are a chief concern of the Constitution, and the Constitution will allow us to deal with them. Conflicts theory has failed to locate external constraints on state law and has actually urged states to adopt regimes that are blatantly discriminatory — regimes that, if not explained by parochialism, are in fact self- contradictory Judicious use of garden-variety antidiscrimination principles embedded in the Full Faith and Credit and the Privileges and Immunities Clauses will prevent such favoritism. These consti- tutional principles do not resolve conflicts by their own force — 18. See infra section IV.B. 19. See infra section TT.C2. 20. See infra section IV.C. 21. The territorial approach to conflicts, discussed below, did in fact work by identifying the law that governed a transaction. Interest analysis retained this vocabulary, even though the description no longer fit the operation of the theory. See infra section IV.C. 22, When a state finds foreign law inapplicable, it may seem not to have rejected foreign tights. See Cunniz, Notes on Methods and Objectives in the Conffict of Laws, in SELECTED Essays, supra note 14, at 177, 181-82. Effectively, of course, it has done so, and perhaps few will find the rhetoric of choice an effective fig leaf. Whether its potential for obscuring con- flits is the real reason for its continued popularity is a psychological question, and my sug- gestions along these lines are only hypotheses. It does seem to be the case that Currie saw a difference between applying local law and rejecting foreign rights, see id., and without this difference, interest analysis's bias toward forum law is obviously problematic. See infra sec- tion IV.C. 23. See infra section V.A. 24, See infra section IV.C.2454 Michigan Law Review (Vol. 97:2448 they do not dictate unique solutions — but they constrain the states’ resolutions in ways that produce a coherent jurisprudence of conflicts.25 In order to see how the Constitution works, we need a theory that frames the issue in terms of conflict, not in terms of choice. Part II of the article sets the stage for that theory by briefly recounting the history of conflicts scholarship and offering a word on methods and objectives in the conflict of laws. Part III extracts appropriate building blocks from the rubble of previous theoretical constructs; it then puts the blocks together, demonstrating in out- line what the theory should look like. Part IV defends the theory by examining two situations neglected by conventional conflicts theory: conflicts within one state’s law, and conflicts between state and federal law. Part V examines the relevance of the Constitution, and Part VI applies the constitutional principles thereby derived. II. Conriicrs THEORY Articles about conflicts frequently begin with — or are entirely devoted to — a history of the subject.2° The need for another such recapitulation may certainly be questioned. This recounting, though, is not mere intellectual dressage. Because I intend to argue that the correct way of thinking about conflicts may be derived from the historical approaches, it is worthwhile to show both how the essential concepts already exist and how they have been pre- vented from uniting into a coherent theory. Conflicts has a rich history. To begin at the beginning might require a return to ancient Egypt and the wrappings of a crocodile mummy, which supposedly contain the first recorded choice-of-law principles.?” A full account would then consider the theories of me- dieval Europe, the early English approach that did away with the problem of foreign transactions via the fiction that all events oc- curred in London,?8 and subsequent developments in the courts of America. The perspective afforded by a thorough historical exposi- tion is of significant value, for conflicts revolves around a few great and recurring themes. But the full-dress reenactment has itself al- 25. See infra Part VI. 26, See BRUMAYER, supra note 8, § 1.1, at 11-13. 27. See Hessel E, Yatema, The Historic Bases of Private International Law, 2 AM. J. Con. L. 297, 300-01 (1953). 28. See Friedrich K. Juenger, A Page of History, 35 Mercer L. Rev. 419, 436 (1984), This led to pleadings asserting, for example, that wrongful acts were committed on the island of Minorca, in the city of London. See id. at 436-37.August 1999] Rethinking Conflicts 2455 ready been done,® and only a few scenes are necessary to my pro- ject. Of course, any attempt to sketch the history as mere opening act for a theoretical venture will inevitably be selectively incom- plete. What follows is an account that highlights those aspects im- portant to my project — how the issue of conflict has been tepressed, and how, in later theory, choice has taken its place. A. Vested Rights: Joseph Beale Although Joseph Story exerted a profound influence on the early development of conflicts theory in America,3° my story starts with Joseph Beale. Beale was the reporter of the First Restatement, and his three-volume treatise on the conflict of laws is structured as a commentary to the Restatement. The Restatement’s task — ra- tionalizing the law of forty-eight states — was a formidable one. But Beale did not intend merely a catalogue of judicial decisions; his quarry was the general common law, of which the decisions of courts were evidence only.52 Beale’s task, as he saw it, was to de- tive the general common law of conflicts from the raw data of judi- cial decisions. In this enterprise he was greatly aided by a few strong principles concerning the nature of law, rights, and remedies.33 Law, for Beale, was fundamentally territorial, supreme within a jurisdiction but generally powerless outside it2* This principle gives a relatively easy answer to the question of what law govems a particular occur- rence. Since local law, and only local law, applies within a given 29. “[E]verything worthy of trying has been tried before, under the same or other labels.” Kurt H. Nadelmann, Marginal Remarks on the New Trends in American Conflicts Law, 28 Law & Conreme. Pross. 860, 860 (1963). For thorough recapitulations, see, e.g., Juenger, supra note 28; Yntema, supra note 27. 30. See, eg., JoserHt STORY, COMMENTARIES ON THE CONFLICT OF Laws, FOREIGN AND Domesnic (Melville M. Bigelo ed., Boston, Little, Brown, & Co. 1883). Story extensively developed the idea of comity as a basis for resolving conflicts. Comity does not govern inter- state conflicts, however; the Constitution does. Story’s work has value for this article primar- ily because it illuminates the original understanding of some constitutional provisions. Apart from that, I will largely ignore his contributions. 31. See 1 BEALE, supra note 6, at xv. 32. See id. § 1.12, at 10. This is, of course, the jurisprudential position of Swift v. Tyson, 41 US. (16 Pet.) 1 (1842), which Beale cited approvingly several times. See, eg, 1 BEAte, supra note 6, § 3.3, at 22 & n.1, § 3.5, at 26, § 4.6, at 39 & n.1. Erie Railroad v. Tompkins, 304 USS. 64 (1938), overruled Swift just three years after the publication of Beale’s treatise. One cannot avoid some sympathy for an author whose 2000-page magnum opus, the product of over twenty years of labor, enjoyed such a brief reign before one of its primary supports was unceremoniously knocked away. Worse was to follow. 33, Nowadays Beale’s first principles appear to be somewhat arbitrary assumptions, but within the jurisprudential climate of his day, they were fairly unremarkable. 34, See 1 Beate, supra note 6, § 4.12, at 45-46, § 59.2, at 308, § 61.1, at 311.2456 Michigan Law Review {Vol. 97:2448 jurisdiction, local law must determine the consequence of acts within that jurisdiction: “If two laws were present at the same time and in the same place upon the same subject we should also have a condition of anarchy. By its very nature law must apply to every- thing and must exclusively apply to everything within the boundary of its jurisdiction.”> If suit is brought within that jurisdiction, courts will obviously apply local law. Indeed, Beale denied the abil- ity of courts to apply any but their own local law — though this included his general common law.36 The transparent workings of the territorial model become some- what more turbid when suit is brought in a jurisdiction other than the one in which the litigated transaction took place. In such cir- cumstances, territoriality might seem at war with itself: If courts can apply only local law, but foreign law must determine the conse- quences of acts in foreign states, how are parties ever to obtain re- lief in courts of other jurisdictions? Beale’s solution to this problem relied on a somewhat complicated taxonomy of rights, which he claimed to derive from the “difference made by our law in treating rights of the different classes with respect to the law creating and having power over them.”37 On his account, law protects interests; these protected interests he terms primary rights.** The violation of a primary right gives rise to a secondary right — a right of redress.°? This right vests at the moment of the violation of the primary right and thereafter may be considered much like personal property of the injured party In particular, it may be brought into other fo- rums and sued upon. Forum courts, in granting relief, are not ap- plying foreign law but simply recognizing the secondary rights vested under foreign law.4t To determine whether a right has 35. Id. § 4.12, at 46. 36. See id. §§ 3.4, 5.4. 37. Id. § 8A, at 66. 38. Seeid,;see also id. § 8A.6. Thus, “[plarties are bound, not by the law, but by obliga- tions created by the law.” Id. § 3.4, at 25. 39. See id. § 8A.25. 40. See, eg., Slater v. Mexican Natl. R.R. Co,, 194 US. 120, 126 (1904) (Holmes, J.); Loucks v. Standard Oil Co., 120 N.E. 198, 200 (N.Y. 1918) (Cardozo, J.). 41. Indeed, the granting of what Beale termed a “remedial right” — an actual damages claim — was in fact a matter of forum law. See 1 Beate, supra note 6, § 8A.28, at 85-86. This allowed the forum to recognize the right to redress while retaining some flexibility in crafting a remedy — a feature Holmes exploited in Oceanic Steam Navigation Co. v. Mellor, 233 US. 718 (1914).August 1999} Rethinking Conflicts 2457 vested, the forum court might need to examine foreign law, but as a question of fact, not law.‘ : One aspect of Beale’s account is of special interest for my pur- poses. The aspect is this: given his territorial understanding of law, there is no such thing as conflict between laws. Each is supreme within its jurisdiction and does not, by the nature of law, extend beyond. Because laws operate only territorially, a state’s law can- not create rights from transactions occurring outside its borders.*3 Denying the application of foreign law to a transaction occurring within the forum state, then, is not the denial of a foreign right but simply a recognition of the nature of law. On this account, laws cannot even come into contact with each other, much less conflict.4¢ The task of courts in multistate cases is truly to identify which law applies, which law creates the parties’ rights and obligations. The elimination of conflicts made Beale’s model pleasingly sim- ple to operate,5 but his approach would ultimately be judged not for its theoretical niceties but for its real-world results. From this perspective, hiding difficult questions is not a virtue. Metaphysical observations about the nature of law do not resolve concrete problems, and Beale’s theoretical purity was purchased at the price of ignoring practical issues. This preference for theory over praxis made Beale an easy target for criticism. He suffered so at the hands of the realists that his conflicts theory was for quite a while dis- missed as an arbitrary metaphysics, based on “jejune notions of an ‘omnipresence’ which cannot ‘brood’ more than three miles from home.”46 But it is more a vessel of reflection, and less a bark of dogma, than such appraisals indicate.4” The internal structure is re- 42, See1 Beate, supra note 6, § 5.4, at 53 (“It is quite obvious that since the only law that can be applicable in a state is the law of that state, no law of a foreign state can have there the force of law. . . . The foreign law is a fact in the transaction.”). 43, “Since the power of a state is supreme within its own territory, no other state can exercise power there.” Id. § 6L1, at 311. 44, While canvassing objections to the name “conflict of laws,” Beale offers a description that precisely fits his theory: “The laws of different sovereigns do not contend with one another for the mastery. Each one keeps within its sphere of operation, and only asserts its power in a foreign country when the law of that country commands or permits it. In practice, a conflict is impossible.” Id. § 1.16, at 13 (quotation omitted). 48. Indeed, Beale believed that attempts to resolve conflicts were doomed to failure. “Which of the two independent sovereigns should yield is a question not susceptible of a solution on which all parties would agree.” 3 BEALE, supra note 6, § 53, at 1929. 46. Katzenbach, supra note 11, at 1096. 47. See BREMAYER, supra note 8, § 1.2, at 20 (calling Beale’s theory “quaintly moti- vated” but “well-developed,” and rejecting critics’ accusation that it was “mindless dogma- tism”). Beale did himself no favors with his vaguely Shakespearean response to accusations of dogmatism: “One cannot deny that most of the statements in this work will be dogmatic. Does not the Bar desire dogmatic statements?” 1 Beate, supra note 6, at xii.2458 Michigan Law Review (vol. 9722448 ally rather elegant, its concepts interacting with a smoothness and complexity suspiciously reminiscent of celestial spheres, phlogiston, luminiferous ether, and other refined illusions. And many of Beale’s claims have been taken up more recently by scholars as em- inent as Ronald Dworkin.** Admittedly, the practical effects of the theory were somewhat less pleasing. In order to pick a single jurisdiction where rights vested — as the territorial principle required — Beale needed to identify a specific act triggering the rights. Not unreasonably, given the alternatives, he decided that this should be the last act necessary to the existence of the cause of action.*? But the rigidity of the last act doctrine interacted with the intricacies of tort law to produce results that were undeniably arbitrary and verged on the bizarre.5° The serpent of the practical fatally compromised Beale’s conceptual Eden, and soon enough came the “archangels of doctrinal destruc- tion”:5? the legal realists. B. Legal Realism: Walter Wheeler Cook In part of the Preface entitled “Apologia,” Beale noted that his legal principles had been criticized by what he optimistically called “a current but ephemeral school of legal philosophy”>2 — namely, legal realism. The characterization was, if not whistling-past-the- graveyard bravado, a historic underestimation rivaling that of Louis XVI Beale struck closer to the mark when he commented that 48. Beale believed that cases had unique right answers and that courts enforce rights that exist prior to and independent of their decisions. See 1 Beate, supra note 6, §§ 3.1-3.4. This cluster has obvious affinities with Dworkin’s account in RONALD Dworxin, Law's EMPIRE (1986). Indeed, elements of Beale’s conflicts theory are enjoying a modest resurgence as part f a conflicts counterrevolution. See Perry Dane, Vested Rights, “Vestedness,” and Choice-of- Law, 96 Yate LJ. 1191 (1987). The present article belongs to the same tradition; like Dane's, it attempts to resuscitate a few key concepts that Beale got right. 49, See Restatement (First) of Conruict oF Laws § 377 (1934). 50. For example, the victim of a poisoning might travel through many states before the effects of the poison were felt. Beale, reasoning that no tort exists without an injury, would look to the law of the state where the poison took effect, since that effect is the last occur- rence necessary to the vesting of the right. But which state the victim happens to be in when this oceurs has little to do with any policy relevant to conflicts of law; nor, without the strong territorialist assumption, does it seem to have much to do with the nature of law. Lowe this, example to Lea Brilmayer, see BRILMAYER, supra note 8, § 13, at 25-26, who points out further that “it is no easy matter to determine (as the First Restatement requires} where the ‘deleterious substance takes effect upon the body,” id. (alteration in original) (quoting Re- STATEMENT (First) oF Conruicr oF Laws § 377 emt. 2, illus. 2 (1934)). S1. Katzenbach, supra note 11, at 1107. 52. 1 BEALE, supra note 6, at xii. 53. Louis's diary entry for July 14, 1789, the date of the storming of the Bastille, reads. simply “Rien.” (“Nothing”). Soaon Scxama, Crrizens 419 (1989), In fairness to Louis, this recorded an unsuccessful hunt,‘August 1999) Rethinking Conflicts 2459 “one who hears the evening bell must hasten his work, if he is to finish it.”5¢ The ferocity, and the success, of the realist assault on Beale’s verities are well documented in the scholarly literature. Katzenbach says that the vested rights theory was “brutally mur- dered” by Walter Wheeler Cook,55 and Brainerd Currie’s oft- quoted evaluation was that Cook “discredited the vested-rights the- ory as thoroughly as the intellect of one man can ever discredit the intellectual product of another.”5* Cook, for his part, made no se- cret of his intent to uproot and discard Beale’s approach in its en- tirety: “[UJntil the intellectual garden is freed of the rank weeds in question,” he wrote, “useful vegetables cannot grow and flourish.”57 The realists directly attacked the idea of vested rights. In part this was a matter of pointing out practical difficulties with the ap- proach. The principle that rights vest in the place of the tort seems easy enough to apply, but in fact it encounters serious difficulties when the events which make up the tort occur in different jurisdic- tions.58 As mentioned earlier, Beale accorded decisive importance to the famous “last act” necessary to the vesting of the secondary right? Unfortunately, the domestic laws of different jurisdictions might disagree about which act was the last one necessary to the vesting of a right, producing situations in which each state believed that rights vested within its territory — or, equally distressing, within the territory of the other state. To resolve this problem Beale had invoked the general common law, a maneuver that be- came much less plausible after Erie Railroad v. Tompkins®! rejected the existence of such an entity. Still, problems of application were ancillary to Cook’s project. His central attack was aimed at the jurisprudential groundwork of Beale’s theory, his understanding of the nature of law and rights. 54, 1 Beate, supra note 6, at xii. 598. See Katzenbach, supra note 11, at 1087-88. 56. Currie, On the Displacement ofthe Law ofthe Forum, in SeveceD Essays, supra note 14, at 3, 6 see also David F. Cavers, A Critique of the Choice-of-Law Problem, 47 HARV. L. Rev. 173, 175-76 (1933) (“Indeed, one may now wonder how any juristic construct such as ‘tight’ could have been accepted as fundamental in the explanation of any important aspect of judicial activity.”); Juenger, supra note 28, at 435 (“pure sophistry”). 57. WaLTER WHEELER Cook, THE LooIcat AND LEGAL BASES OF THE CONFLICT OF Laws at ix (1942). 58. See, eg. id. at 314-18. 59. See supra note 49 and accompanying text. 60. See, eg, 1 BEALE, supra note 6, § 3.1-3.6; RestaTeMENr (First) oF CONFLICT OF Laws § 377 cmt. d (1934). 61. 304 U.S. 64 (1938).2460 Michigan Law Review [Vol. 97:2448 Rejecting Beale’s conception of “theoretical law” as “the body of principles worked out by the light of reason and by general usage, without special reference to the actual law in any particular state,”6 Cook warned that “we must as always guard ourselves against thinking of our assertion that ‘rights’ and other legal relations ‘exist’ or have been ‘enforced’ as more than a conventional way of describing past and predicting future behavior of human beings judges and other officials.” He therefore opposed the reification of rights, arguing, in the words of the ever-quotable Holmes, that “a right is only the hypostasis of a prophecy.” Cook’s positive program for resolving choice-of-law questions was not as theoretically well-developed as that of his predecessor (Joseph Beale) or successor (Brainerd Currie). This is under- standable, given his pragmatic and antimetaphysical bent, but it means that his importance to this article lies largely in his critique.6 His most notable positive contribution was the “local law theory,” which asserted that states could apply only their own law. Beale, of course, agreed with this proposition; it was what necessitated his distinction between foreign law and the rights that vested under it. Cook went further, however, arguing that states did not enforce for- eign rights but rather applied “the rule of decision which the given foreign state or country would apply, not to this very group of facts now before the court of the forum, but to a similar but purely do- mestic group of facts involving for the foreign court no foreign ele- ment.”67 This theory offered a solution to the problem of renvoi — 62. 1 Beate, supra note 6, § 1.12, at 9. 63. Coox, supra note 57, at 33. One obvious problem with this “predictive” theory of law is that it fails to explain the thinking of a judge deciding a case, whose attempts to discern the correct rule of law are surely not attempts to predict his own behavior. Cook points out this difficulty, then comments that “our discussion at this point does not require further consider- ation of the matter.” Id. at 30 n.52a. 64, Id. at 30 (quoting Otrver Wenpett Houmes, Natural Law, in Coutecteo Lecat. Pavers 310, 313 (1920)). Of course, Holmes’s Supreme Court opinions constituted canonical applications of the vested rights theory. See, eg, Western Union Tel. Co. v. Brown, 234 U.S. $42, $47 (1914); Slater v. Mexican Natl. RR. Co., 194 U.S, 120, 126 (1904). Cook offers a creative reconstruction of Slater as rooted in policy judgment rather than in the vested rights theory, which he then cautiously attributes to Holmes. See Coox, supra note 57, at 35. It may be safer to rest with the observation that Holmes contained multitudes. 65. See, e.g, Larry Kramer, Interest Analysis and the Presumption of Forum Law, 56 U. Cin. L, Rev. 1301, 1301 (1989) (“[W]hile (the realist) criticism successfully undercut the intel- ectual foundation of traditional choice of law theory, a plausible alternative was not pro- posed until the 1950s.”). 66. Cook would probably not have been unhappy to be identified more with his negative than with his positive analysis; he believed that “(t}he removal of the weeds is .. . as construc- tive in effect as the planting and cultivation of the useful vegetables.” Coox, supra note 57, at ix. 67, Id. at 21.