Jean Monnet Center at NYU School of Law


VII. Conclusion

It should be clear from the foregoing discussion that devaluing the Freedoms' and the Dormant Commerce Clause's theoretical gateway for judge-made federal choice-of-law rules is not to say that choice-of-law is not a federal task. On the contrary, the main and clearest recommendation this paper might give (like others before) is that choice-of-law in a federal system should be federalized. But the US federal courts have the power to craft federal choice-of-law rules under the Full Faith & Credit Clause anyway, and the ECJ would be overwhelmed by this task. The point is that the task of making federal choice-of-law rules is best assumed by, and in both the EU and the US constitutionally vested in, the federal legislator.

The question of who should make choice-of-law rules was not the only aspect of choice-of-law in a federal system that this paper dealt with. I tried to identify some of the considerations that should guide the federal legislator, or else the federal courts, in crafting choice-of-law rules for the federal system. In other words, this paper was also concerned with the question of what choice-of-law rules should look like. Factors to be taken into account in forging choice-of-law rules include "state" interests derived from general federalism ideas, and "private" interests discussed in connection with the burden-test.

The discussion of the burden-test and choice-of-law in the European literature has been helpful in making the discussion of choice-of-law policy in Europe more pragmatic. For the rest, however, it seems that the European scholars have engaged in a largely futile attack on some minor aspects of a system which is flawed in its general setup. It looks almost like an act of desperation to scrutinize national choice-of-law rules under a highly complicated burden-test analysis with, usually, little results, while the real problem is that choice-of-law rules in the EU, as in the US, are still state rules (as opposed to federal rules). In an ideal federal system, choice-of-law rules should not be subject to the burden-test simply because they are federal rules (although the considerations discussed under the burden-test would remain pertinent for the legislator). As long as we have to live with state choice-of-law rules, scrutinizing these rules under burden-test analysis would amount to a waste of resources. If a purely doctrinal and mechanical application of the burden-test demands that state choice-of-law rules be scrutinized under the burden-test to the extent advocated by many scholars, this is just one more reason to reconsider the broad understanding of the burden-test.

This paper could not address many interesting details. One of them was the treatment of harmonized law in choice-of-law. Another "detail" that could not be addressed were the many specificities of individual federal systems and internal markets. Their constitution may contain more specific indications as to how the issues raised in this paper should be treated in that particular system. For example, this paper did not address the question if, e.g., the EC Treaty departs from an overall efficiency analysis in that it puts market integration before certain other interests, such that in a burden-test analysis, market integration concerns would automatically trump these other interests, or at least deserve significantly more weight (as opposed to an open-ended overall efficiency analysis).

Lastly, this paper could not explicitly address the respective role of choice-of-law and substantive federal laws in the integration process.253 Finding sensible approaches to the horizontal inter-state relations might help easing the vertical tension between the states and the federal government. This paper shows, though, that the possibilities of choice-of-law are limited. As we have seen when discussing the many conflicting interests arising in a system of legislative diversity, choice-of-law cannot resolve these conflicts, it can only alleviate them to a limited extent. A market-integrating federal choice-of-law rule might sometimes be even worse from a federalistic perspective than a substantive federal rule. In the case of a substantive federal rule, any state, or representatives from the state, can at least participate in the legislative process of forging that substantive rule. In contrast, if a federal choice-of-law rule allocates legislative authority badly, a state whose policies are undermined by the choice-of-law rule is left entirely to the mercy of those other states whose law will be applicable under the rule.254

Given that choice-of-law has been a declining discipline in the last decades, and has been seen by many as a fascinating but in practice irrelevant discipline, my final hope is that this paper may also have given the reader the feeling that, and why, choice-of-law rules are, after all, important, and that thinking about them is worth the time.

253 See generally Giorgio Gaja, Peter Hay & Ronald D. Rotunda, Instruments for Legal Integration in the European Community - A Review, in Integration Through Law vol. 1 bk. 2, 113 (Mauro Cappelletti, Monica Secombe & Joseph Weiler eds. 1986).

254 Cf. Pielemeier, supra note 59, 1314-1315.




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