Below is the abstract for “Choice of Law as Statutory Interpretation: The Rise and Decline of Governmental Interest Analysis” available for download on SSRN.
Governmental interest analysis revolutionized choice of law in the United States and heavily influenced the Second Restatement of the Conflict of Laws, which is the most widely followed method of resolving conflicts among the fifty states. The key insight on which this legal revolution was based was that choice of law is a matter of interpreting the substantive laws in question. The theory relied on the highly purposive approach to interpreting statutes championed by the Legal Process School, whose methods dominated statutory interpretation around the time the theory was developed. Since that time, however, statutory interpretation has undergone a revolution of its own. The high purposivism of the Legal Process School has been mostly repudiated. Few would now maintain, as Currie did, that courts faced with statutory silence on a question should try to imagine how the legislature would have resolved the question. Textualists and even modern-day purposivists instead maintain that such imaginative reconstructions both fail to capture likely legislative intent and subvert the lawmaking process. Yet, despite this statutory-interpretation revolution, choice-of-law in the United States remains deeply influenced by governmental interest analysis.
This Article critically examines governmental interest analysis as statutory interpretation in light of the revolution that has occurred in the field of statutory interpretation since Currie elaborated his approach. What we find are two realities. Led by the U.S. Supreme Court, the federal courts and, to a large extent, their state counterparts have mostly abandoned the strong purposivism of the mid-twentieth century. As a result, governmental interest analysis appears increasingly anachronistic as an approach to statutory interpretation. Today’s textualist Supreme Court has attempted to update its approach to choice of law through the adoption of a presumption against extraterritoriality. Unlike the Supreme Court, however, the states have not brought these lessons to bear on their choice-of-law methodologies. Amongst the states, Currie-style interest analysis still survives, albeit tenuously. By clinging to the high purposivism of governmental interest analysis in the context of choice of law, some states perpetuate an approach to statutory interpretation that they have increasingly disfavored in other contexts. To the extent it survives in the states, governmental interest analysis is frozen in amber, persisting in an environment that has rejected its core premises.
However, the American Law Institute’s current project of elaborating a Third Restatement of the Conflict of Laws may signal the end governmental interest analysis. The draft Third Restatement professes fealty to Currie, but at the same time it dramatically revises his legacy, rejecting his purposivist approach. If as widely adopted as the Second Restatement was, the Third Restatement would spell the end of Currie-style interest analysis—finishing the counter-revolution that is so far only halfway complete.