The State Whose Law is Selected
Abstract
The ability of parties to a multistate contract to choose the law that governs their relationship, once controversial, is now almost universally accepted. So too are the conventional limits on that ability. Most jurisdictions restrict party autonomy in the name of the same set of concerns: Power disparities between the parties that might lead to oppression or unfairness, the policies or interests of the forum, and the policies or interests of the state whose law would govern the contract in the absence of a choice-of-law clause—the state whose law was not selected. This Article adds one more: the interests and policies of the state whose law has been selected. The idea that selecting a state’s law can offend its policies might seem counterintuitive. American scholars, at least, normally think that the way to respect a state’s policies is precisely to select its law, so the idea that those policies might counsel against selecting the law seems odd. But further analysis shows that there are several reasons a state might not want its law selected, and that courts should—and sometimes must—pay attention to those reasons.
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