Substantive, Multilateral, and Unilateral Choice-of-Law Approaches

As a preliminary step toward such potentially fruitful work, this Article briefly compares the three approaches.2 The three approaches are assessed primarily from a common law perspective. Judges are assumed able to wield law-making power, including power to choose and shape their sovereign's choice-of-law approach. This is certainly true for most judges in the United States, who operate under a common law system generally and whose legislatures usually leave to the judiciary the decision about what choice-of-law approach that jurisdiction will use. Hopefully, however, my comments also have relevance for code jurisdictions and for the international community. Indeed, at many places in this Article, I address international, rather than interstate, fact patterns.This Article's working premise is that one cannot evaluate choice-of-law approaches without simultaneously considering how courts exercise personal jurisdiction when courts enforce foreign judgments. Accordingly, each of the three competing choice-of-law approaches is analyzed, not as if choice-of-law decisions occur in a vacuum, but from the perspective of whether it matters who gets to hear a case, and whether each approach raises enforcement problems.The Article is organized into three parts, one devoted to each of the three choice-of-law approaches. Within each part, a subpart first describes the key underlying premises of the approach.Further subparts then discuss whether and how the approach interrelates with personal jurisdiction theory, what enforcement problems are raised by the theory, and typical cases that illustrate the strengths and weaknesses of the approach. The Article concludes by offering some brief, tentative thoughts about how aspiring drafters of a third restatement might use the potential strengths and weaknesses of each choice-of-law approach to help guide their work.