Thursday, November 10, 2011

Baude on Choice of State Law in Federal Statutes

William Baude has posted on SSRN an article entitled “Beyond DOMA: Choice of State Law in Federal Statutes,” forthcoming in Stanford Law Review. 


Stanford Law Review, Vol. 64, 2012

The Defense of Marriage Act has been abandoned by the executive and held unconstitutional by courts, so it is time to think about what will be left in its place. Federal law frequently asks whether a couple is married. But marriage is primarily a creature of state law, and states differ as to who may marry. The federal government has no system for deciding what state’s law governs a marriage, though more than a thousand legal provisions look to marital status, more than a hundred thousand same-sex couples report being married, and many of those marriages ultimately cross state lines. Unless a federal choice of law system is designed, DOMA’s demise will lead to chaos.

This paper argues that such a system can and should be designed: Because the underlying choice-of-law problem is ultimately a problem of statutory interpretation, Congress can and should replace it with a clear choice-of-law rule. Failing that, federal courts can and should develop a common law rule of their own - they are not (and should not be) bound by the Supreme Court’s decision in Klaxon v. Stentor Electric. The paper further argues that different institutions should solve the problem differently: If Congress acts, it should recognize all marriages that were valid in the state where they took place. If, instead, the courts create a common-law rule, they should recognize all marriages that are valid in the couple’s domicile.

The implications of this argument run far beyond the demise of DOMA. In all areas of what is here called “interstitial law,” federal interpretive institutions can and should devise a set of choice-of-law rules for federal law that draws upon state law, and what set of rules is proper may well depend on who adopts them.


| Permalink


Professor Baude's article addresses an issue with importance beyond marriage law. The U.S. should have more national law uniformity. Where it does not, it should at least have a national choice of law statute. The forgotten full-faith-and-credit clause of the Constitution grants Congress an unused power of implementation. Justice Jackson called the clause the “foundation of any hope for a truly national system of justice.” Robert H. Jackson, Full Faith and Credit – The Lawyer’s Clause of the Constitution , 45 Col. L. Rev . 1, 34 (1945),

Professor Baude asks: “It is reasonable to wonder whether resolution is really needed.” Justice Jackson answered “We are so accustomed to the delays, expense, and frustrations of our system
that it seldom occurs to us to inquire whether these are wise or constitutionally necessary.”

Justice Jackson called on us to put our efforts in international perspective. He continued, “perhaps the best perspective for judging whether our society is being well served . . . is by the comparative study of the methods and degree of integration employed by other peoples.” Looking abroad it is clear that our society is not well served by what we do now: this is one of our many failures of civil justice.

Posted by: James Maxeiner | Nov 15, 2011 8:15:27 AM

Post a comment