The Place of Trial and the Law Applied: Overhauling Constitutional Theory
46 Pages Posted: 12 Jun 2013
Date Written: January 1, 1988
Abstract
This paper undertakes a critical examination, from interest-analytic and policy-analytic perspectives, of the desiderata of constitutional control of choices of law and of forum. Deploying modern interest analysis, the paper identifies and considers such persistent systemic problems as the inappropriate tier of scrutiny, the arbitrary Bealeian choice of law, the discriminatory Bealeian choice, inconsiderable or fractional interests, after-acquired interests, the unprovided-for case, the problem of discrimination against non-residents, the effect of adjudicatory jurisdiction on choice of law, the effect of choice of law on a taking of jurisdiction, and the failures of minimum contacts theory in Supreme Court cases on personal jurisdiction. The discussion is illustrated by numerous classic cases in the field. The suggestions offered are not made with any purpose of enhancing predictability or uniformity, or of limiting litigation, but rather in the interest of improving the administration of civil justice in American courts.
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