Wednesday, October 18, 2017

Green on the Unprovided-For Case in Choice-of-Law

Michael S. Green (William & Mary) has posted The Return of the Unprovided-For Case to SSRN.

The unprovided-for case is a puzzle that arises under governmental interest analysis, the predominant choice-of-law approach in the United States. As its name suggests, in the unprovided-for case the law of no jurisdiction seems to apply. There is a gap in the law. After its discovery by Brainerd Currie in the 1950s, the unprovided-for case proved to be an embarrassment for interest analysts and a focal point for critics. In 1989, however, Larry Kramer published an argument that the unprovided-for case is a myth. There is no gap in the law. Kramer’s argument has been well-received, so much so that discussion of the unprovided-for case has receded among advocates and critics of interest analysis alike. 

But the myth is a myth. What Kramer actually shows is not that preexisting law always applies in the unprovided-for case, but that regulatory policies can always be found to recommend law to fill the gap that the unprovided-for case creates. These policies are reasons for laws. They are not themselves laws. Law is not found in the unprovided-for case — it is made. 

One might think that looking to freestanding regulatory policies to create law in the unprovided-for case is not a serious problem, since that is what courts normally do when there is a gap in the law. One would be wrong. If a court must look to freestanding regulatory policies to create law in the unprovided-for case, it must do the same in all choice-of-law cases, for these policies are relevant to them too. Interest analysis collapses as a result, leaving no clear choice-of-law method in its place.

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