Rights, Fairness, and Choice of Law

Abstract

One is hard put to find a serious discussion of "rights" in the current academic literature or judicial discussions of choice of law. With a few notable exceptions, the academic talk is all about "policies," or "interests," or "functional analysis." Even in leading constitutional decisions, the validity of the state's claim to apply its own law is measured primarily in terms of the adequacy of its interest in having its law applied, appraised in light of the contacts between the state and the controversy. Talking about rights is like talking about perpetual motion machines, phlogiston, or faeries. "[O]ne may now wonder," wrote David Cavers in his seminal article A Critique of the Choice-of-Law Problem, "how any juristic construct such as 'right' could have been accepted as fundamental in the explanation of any important aspect of judicial activity."