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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
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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