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Publication Date

3-1997

Document Type

Response

Abstract

I have been invited to respond to a symposium on "Choice of Law: How It Ought to Be." My response will be in terms of "Choice of Law: How It Is." That is, as the title of this Article indicates, I hope to bring a real world perspective on choice of law to the issues that have been discussed in the symposium. And I believe that a perspective on how choice of law operates in the real world-how choice of law is-may furnish considerable guidance on the question of how choice of law ought to be.

My real world perspective on choice of law contains three components. The first component I will call interest analysis and judicial method. This component represents my view as to how choice of law ought to be, and as I believe I have demonstrated in my numerous writings on choice of law, in practice, this is pretty much how choice of law is. The second component of my real world perspective on choice of law arises from the fact that I also teach and write in the area of Constitutional Law. Professor Felix has noted that Conflicts teachers who also teach Constitutional Law should be treating the subject of the constitutional issues as they arise in the Conflicts course in a broader context. I agree with Professor Felix on this score. It is precisely because I also teach Constitutional Law, that I approach constitutional issues in this broader context, which I call constitutional generalism. The third component of my real world perspective on choice of law comes from my experience as a litigating lawyer and "conflicts consultant." Although I have litigated extensively. over the years in my other field of Constitutional Law, in the last decade or so, I have found myself litigating a number of conflicts cases in Michigan. I have also consulted with practicing lawyers on their conflicts cases. Thus, I have had some opportunity to observe "the conflict of laws in practice," and this has given me some idea of how courts deal with conflicts issues in actual litigation.

In this writing, I will discuss in detail the three components of my real world perspective on choice of law. In the course of this discussion, I will bring in all of the cases commented upon by the distinguished panelists in the roundtable discussion, and examine them from this real world perspective. When approached from this perspective, I submit that these cases are not at all difficult to resolve, and that in the real world, choice of law is not nearly as complicated as academic analysis of the choice of law process, such as that contained in the roundtable discussion, frequently indicates.

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