Big Conflicts Little Conflicts

Home / Print / 2015 / Big Conflicts Little Conflicts

Katherine Florey

Choice-of-law doctrine today increasingly presents two distinct faces. When it comes to garden-variety tort and contract cases, conflicts doctrine often produces uncontroversial results with surprisingly little drama. In more complicated litigation, however, the picture is starkly different. It is fair to say that choice-of-law issues represent perhaps the most serious obstacle to consolidating complex cases. Further, conflicts issues even in simpler cases have proven deeply problematic when they implicate not just the interests of individuals, but larger questions about the proper allocation of state power.

What accounts for the divergent performance of conflicts doctrine in, on the one hand, small-scale litigation and, on the other, litigation that affects more people or raises broader policy concerns? This Article argues that domestic U.S. choice-of-law doctrines serve two distinct functions, and are generally better at the former than the latter. The first of these is the negotiation of “little conflicts”—small-scale litigation that incidentally involves multistate contacts, in which courts must choose between two or more state rules that govern issues such as who may recover or what categories of damages are available. In these cases, the choice of decisional rule to apply, while obviously consequential to the litigants involved, rarely involves a genuine clash of interests between jurisdictions. This is true both because such rules generally do not reflect strongly held policy preferences on the part of a particular state and because—even to the extent that they do—those preferences cannot be effectuated in any meaningful way through individual litigation. In part because modern conflicts doctrines were developed to tackle such conflicts, they generally do a serviceable job of resolving them.

Full Article