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Dining Out in the Eleventh Circuit: "A La Carte" and "All-or-Nothing" Approaches to Choice of Law
Brilmayer, Lea
Brilmayer, Lea
Abstract
Whether you're thinking of judicial opinions or you're thinking of legal scholarship, it's hard to deny the depth of disagreement that exists over how to select the law applicable to multistate cases. In some states, judges decide choice of law questions according to tried and true principles of their forefathers. In others, the judges seem ready to road test almost any eccentricity that law reviews see fit to publish. The divisions among scholars are even more pronounced. Choice of law theorists have been at each other's throats for decades and the gap does not seem to be closing anytime soon. Rarely do the experts change their minds about the major issues in the field; and even more rarely do they change each other's.
But stubbornness is not the issue here. To the contrary, we are more interested in those cases where a state somehow decides that
change is necessary. For therein lies an interesting question of judicial process. Should a state's courts adopt a change to choice of law as an integral package-a theoretical whole? Or should they make big changes bit by bit? Beneath this question's innocent facade lurks a real Pandora's Box.
Choice of law theories are all grounded on foundational premises about the nature and purpose of law and sovereignty. Differences among the various choice of law methodologies in their foundational premises virtually guarantee the incompatibility of different choice of law theories. It would therefore be reasonable to assume that adoption of a choice of law approach by a state's high court means acceptance of and commitment to that approach's foundational premises for all choice of law purposes. Adopting one theory therefore seems to entail rejection of the others.