Against Choice of Law Exceptionalism
Document Type
Article
Publication Date
6-20-2024
Abstract
Over the years, choice-of-law scholars have developed a perspective on choice of law as a field distinct from ordinary legal analysis, operating by its own rules. In its first incarnation, this perspective, which I call ‘choice of law exceptionalism’, was a way to remedy some of the defects of territorialist theory. It produced desirable results, but it was not necessary, because the same results could have been reached by simply abandoning territorialist dogma in favour of ordinary legal analysis. As time went on, scholars embraced choice of law exceptionalism for other reasons: first to advance their preferred substantive values and second for its own sake, as a way of freeing scholars from the constraints of ordinary legal analysis and the obligation to listen to state lawmakers. Each of these reasons is bad and choice of law exceptionalism should be abandoned: choice of law needs less theory, not more.
Keywords
choice of law, characterization, territorialism, interest analysis, procedure, Conflict of Laws, private international law
Publication Title
Philosophical Foundations of Private International Law
Repository Citation
Roosevelt, Kermit III, "Against Choice of Law Exceptionalism" (2024). Book Chapters. 462.
https://scholarship.law.upenn.edu/faculty_chapters/462
https://doi.org/10.1093/oso/9780192858771.003.0005
DOI
https://doi.org/10.1093/oso/9780192858771.003.0005