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80 Geo. L.J. 1 (1991-1992)
Draining the Dismal Swamp: The Case for Federal Choice of Law Statutes

handle is hein.journals/glj80 and id is 25 raw text is: ARTICLES Draining the Dismal Swamp: The Case for Federal Choice of Law Statutes MICHAEL H. GOTrESMAN* The realm of the conflict of laws is a dismal swamp, filled with quaking quagmires, and inhabited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon. The ordinary court, or lawyer, is quite lost when engulfed and entangled in it. William Prosser1 Choice of law is necessary when a subject is committed to state (rather than federal) law, the parties' dispute arguably implicates the laws of more than one state, and the legal rules that would apply in resolving that dispute differ between the states.2 Torts is the field that most often fulfills these con- ditions and, not surprisingly, has generated the largest number of conflicts cases. But the need to choose between competing states' laws also arises fre- quently in other fields traditionally regulated by state law such as contracts and internal corporate affairs. Indeed, as interstate transportation, commu- nication, and commerce have increased over time, multistate transactions that pose conflicts of law problems have grown geometrically.3 This article suggests that it is time for Congress to enact a statute or series of statutes declaring federal choice of law rules for categories of disputes that arise frequently in multistate contexts-rules that would determine which state's law will apply to resolve a dispute when more than one state's law might fairly be claimed applicable. Congress has the constitutional power to legislate such rules, but has failed to exercise that power for two centuries. That default may have been tolerable in times past, but a series of develop- * Professor, Georgetown University Law Center. I wish to thank Lea Brilmayer, William Es- kridge, Chai Feldblum, Stephen Goldberg, Vicki Jackson, Larry Kramer, Mark Tushnet, and Car- los Vasquez for extremely helpful comments on a prior draft, and Amy Uelmen for invaluable research and editorial assistance. 1. William Prosser, Interstate Publication, 51 MICH. L. REV. 959, 971 (1953). 2. Choice between competing legal regimes is also necessary in other contexts that are beyond the scope of this paper, for example, when a dispute implicates the laws of two nations, or, within the United States, when one party to litigation invokes a state law but the other party contends that federal law is exclusive and preempts the state law. 3. In the modem era, virtually every American engages in hundreds of transactions a day with potential to trigger a lawsuit requiring a choice between multiple states' laws: every product used that was made out of state, every out-of-state motorist passed on the highway, every activity under- taken while visiting another state, and so forth.

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