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«Whereof One Cannot Speak: Legal Diversity and the Limits of a Restatement of Conflict of Laws PERRY DANE* I. How much can a Restatement of Conflicts ...»

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Whereof One Cannot Speak:

Legal Diversity and the Limits

of a Restatement of Conflict of Laws



How much can a Restatement of Conflicts say about the law of choice of law?

Several papers in this Symposium have addressed that question, though usually while

discussing the vague or uncertain state of choice of law today. I want to take a

different tack on the subject, focusing on analytic boundaries in the structure of

choice of law itself.

A legal system's impulse to tackle choice of law can take two different forms.' On the one hand, it might reflect a forum's effort to rise above itself, so to speak, and decide, by its own lights but from a neutral perch, which law properly applies to a given issue in a jurisdictionally complex case. This view treats choice of law as a second-order legal process, which is to say as a law about the division of legal authority.2 On the other hand, choice of law might not arise out of a position of neutrality at all. Instead, it might be an effort by a legal system (possibly but not necessarily the forum) to work out its own substantive doctrine in the light of the sheerfactofjurisdictional complexity. This view treats choice of law as afirst-order legal process.' It represents not the allocation of prescriptive (legislative)jurisdiction, but its exercise.4 This dichotomy between asecond-orderand afirst-orderview of choice of law can be a basis for categorizing entire choice-of-law theories. Crudely put, traditional Vested Rights theory tended to see choice of law as a second-order process and at least some modernist theories tended to see it as afirst-orderproblem.5 I want to put the distinction betweenfirst-orderand second-orderchoice of law to a different use here, however. I want to suggest that any account of choice of law can include variations on both these impulses, embedded one inside the other in interesting and revealing ways. And I want to argue that, for both theoretical and practical reasons, untangling the two levels of analysis is important. More particularly, a restatement of choice of law, if it is done right,should be sensitive to the interplay between these stances. For it is partly through such an understanding that such a restatement could * Professor of Law and Director of Faculty Development, Rutgers School of Law, Camden.

1. The dichotomy I am drawing is similar, but not identical, to the familiar distinction between "multilateral" and "unilateral" accounts ofchoice of law, which figures in some of the other articles in this Symposium. To avoid confusion, I will stick to my own description and terminology.

2. See Perry Dane, Conflict ofLaws, in A COMPANIONTOTHE PHILOSOPHY OF LAWAND LEGAL THEORY 209, 210 (Dennis Patterson ed., 1996).

3. See id. 216-17, 219.

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embody a more sophisticated sense of the limits on what it can say about choice of law.

I could work out these abstractly put propositions in further analytic detail.6 For the limited purposes of this Comment, however, I want instead to go on by way of example.

One place to begin is the Restatement of the Law of Conflict of Laws ("First Restatement") treatment of the choice of law of marriage. This topic has come to life again with the current debate over same-sex marriage. Rather than venture into that debate directly, however, I want to dissect the Restatement's specific concerns.

The first rule in the FirstRestatement'sdiscussion of marriage-and what appears at first to be its fundamental rule-appears in section 121: "Except as stated in [sections] 131 and 132, a marriage is valid everywhere if the requirements of the marriage law of the state where the contract of marriage takes place are complied with."8 This looks like one of the FirstRestatement's infamous act-territorial rules, along the same lines as, say, its basic rules for contract and tort.9 But what about the exceptions? The more important of the two sections referenced in section 121 is section 132:1° A marriage which is against the law of the state of domicil of either party, though the requirements of the law of the state of celebration have been complied

with, will be invalid everywhere in the following cases:

(a) polygamous marriage, (b) incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicil, (c) marriage between persons of different races where such marriages are at the domicil regarded as odious, (d) marriage of a domiciliary which a statute at the domicil makes void even though celebrated in another state."

On a cursory reading, the import of this rule seems to be, that in the First Restatement's second-ordermapping of the world, prescriptive jurisdiction over marriage is split, with the place of celebration governing most issues and the domicile of the parties governing a small set of special situations, such as polygamy. A closer look, however, reveals something different. For one thing, clause (d) of section 132

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recognizes the power of a statute at the domicile to vetofor any reason a marriage celebrated elsewhere.

And considerthis sweeping language in the commentto section 132:

The rule stated in this Section recognizes the paramount interest of the domiciliary state in the marital status....

Clauses (a), (b), and (c) state respects in which a marriage may offend the strong policy of the domiciliary state. This statement, however, is not intended to be an exclusive enumeration and if a marriage offends a strong policy of the domicil in any other respect, such marriage will be invalid everywhere.' The FirstRestatement, that is to say, does not merely contemplate that the domicile has a potential veto over a well-defined subset of issues. It recognizes in the domicile an absolute power, exercisable by statute or otherwise, to control for any reason the validity of its people's marriages celebrated anywhere. Put another way, ifa marriage of a domiciliary conducted outside the domicile is valid, it is only by the permission of the domicile.' 3. This reading, in turn, requires a new look at section 121, which provides that, under most circumstances, "a marriage is valid everywhere if the requirements of the marriage law of the state where the contract of marriage takes place are complied with."' 4 At first, section 121 had looked like a typical First Restatement rule-a second-order, territorially based, allocation of prescriptive jurisdiction. In truth, however, section 121 does not recognize in the place of celebration any independent power to validate marriages.' Rather, it reflects thefirst-ordersubstantive decision of domicile states to recognize, by their own law,16most marriages performed in accordance with the law of the place of celebration.

Why would domiciles defer so? The, most obvious reason is for the sake of simplicity, predictability, and the convenience of the parties. On the whole, it is practical to let the prerequisites and formalities of marriage be handled by the place where the marriage is celebrated. In general, a domicile probably cares more that there be formalities than about their details.17 Moreover, most domiciles presumably

12.Id. § 132 cmts. a& b.

13. Whether the FirstRestatement'sassignment of ultimate prescriptivejurisdiction to the domicile accurately reflected American case law at the time, or the view of other commentators, is beyond the scope of this Comment.

14. FIRST RESTATEMENT, supranote 7, § 121.

15. It might recognize a separate power in the place of celebration to invalidatea marriage, but that is a separate matter.

16. This point is stated much more clearly in Joseph Beale's treatise, which was published around the same time as the First Restatement he took the lead in drafting. While the Restatementbegins with a general rule that looks act-territorial, and only raises the role of the domicile by way of an exception to that general rule, the treatise much more clearly begins by declaring that the domiciles of the husband and wife are "regarded as having the jurisdiction to establish the marriage relation." 2 JOSEPH H. BEALE, A TREATISE ON THE CONFLICT OF LAWS § 121.2, at 667 (1935). Thus, because either state can "create or refuse to create the status of marriage..., the most important inquiry in the case of a disputed marriage is, therefore, 'What is the law of the domicil of the parties on this point?' Id. at 668.

17. This is also reflected in the domestic marriage statutes of most states in the United INDIANA LAW JOURNAL [Vol. 75:511 prefer to "sustain marriages, not to upset them."' 8 But in the scheme of the First Restatement, a domicile remains free-in.marriage, but not tort or contract-to exercise its own prescriptive jurisdiction whenever it cares enough to do so.

Seen in this light, some of the apparent contradictions in the FirstRestatement's treatment of marriage dissolve. For example, section 129 provides that a marriage will not be invalid solely because "the parties to the marriage went to [another] state in order to evade the requirements of the law of their domicil."' 9 But the comment to section 129, and even more definitively a comment to section 132, make clear that a statute in the domicile, such as the Uniform Marriage Evasion Act, can, either expressly or as interpreted, invalidate such marriages, not only in the domicile, but "everywhere." 2 There is no real inconsistency, however, because section 129, rather than stating a broad principle freeing "evading" parties from the grip of their domicile, is merely an interpretive canon as to the meaning of the law ofthe domicile.

This clarification, however, also suggests a problem with the FirstRestatement's formula. For if section 129 is only a canon for interpreting the domicile's municipal law, then what business is it of the Restatement to provide such a canon? Admittedly, this piece of municipal law concerns an extra-territorial event, but it is still a first-orderpiece of law: the domicile's effort to respond, from its own point of view, to the fact of territorial complexity. And because the FirstRestatement generally embodies a theory of choice of law as a second-orderenterprise, for it to include such a first-order canon of construction without a warning label is misleading and overreaching. ' States, which typically allow the parties a wide range of options-both secular and religious-for formalizing their marriages.

18. Madewell v. United States, 84 F. Supp. 329, 332 (E.D. Tenn. 1949).

19. FIRST RESTATEMENT, supranote 7, § 129.

20. Id. § 132 cmt. e.

21. A similar problem infects section 131, the other stated exception to section 121. Section 131 provides that:

If by statute each party to a divorce granted in the state is forbidden for a certain time or during the life of the other party, to marry again, and one party goes into another state and marries, being permitted to do so by the law of that state, the marriage is valid everywhere, even in the state where the divorce was granted, unless... statute which forbids the parties to marry is interpreted as being the applicable to the marriage of domiciliaries in another state.

Id. § 131. This section, by its own terms, merely states a default rule for the interpretation of a statute at the domicil. See id. at § 131 cmt. a. But what business is it of a choice-of-law regime to interpret a statute? There is, interestingly, a genuine second-orderrule lurking in the discussion: such disabling statutes, the Restatement proposes, are only effective as long as a party remains domiciled in the state that granted the divorce. See id. But this important idea, which does go to a matter of prescriptive jurisdiction, is buried in the Restatement comment.

See id.

A more mysterious, related, provision is section 130, which denies even potential extra-territorial effect to divorce decrees disabling only one party from remarrying (as opposed to statutes disabling both parties, whose effect is recognized in section 131). See id. §§ 130,

131. But, as I discuss below, there is no reason for a second-orderchoice-of-law regime to care whether a legal system exercises its prescriptive jurisdiction through statutes or judicial decrees. See infra text accompanying note 23.


2000] More generally, this analysis suggests that section 132 itself (the broader rule governing marriages contrary to the law ofthe domicile)' is both falsely precise and analytically muddy. Consider again, for example, clause (d), which treats as invalid "marriage of a domiciliary which a statute at the domicil makes void even though celebrated in another state."' This formulation is arbitrarily narrow. Ifthe point is to recognize the "paramount interest" and authority of the domicile, why should it matter whether the domicile exercises that authority by way of a statute rather than ajudicial precedent or some other means?24 Of course, if the drafters had replaced the word "statute" in clause (d) with "legal norm" or some other general term, that would have rendered clauses (a), (b), and (c) superfluous. But that, in turn, reveals the pernicious confusion ofthose formulations.

Recall the litany: "(a) polygamous marriage, (b) incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicil, (c) marriage between persons of different races where such marriages are at the domicil regarded as odious."2 Several problems are obvious here. First, if these categories do not constitute an "exclusive enumeration,"26 then the First Restatement is unnecessarily and ' invidiously putting its imprimatur on three specific grounds of possible invalidity.

The inclusion of clause (c) is particularly malevolent, and not only because it now appears so anachronistic.

Second, the specific terms of the three clauses are strange. Apparently, the law of the domicile will invalidate a polygamous marriage without qualification, an incestuous marriage only if it violates a "strong public policy of the domicil," and an interracial marriage that the domicile regards as "odious."2 Moreover, while the Restatementcomment insists that "[w]hether a marriage comes within the rules stated in clauses (a) and (b) is to be determined by the law of the domicil,"2 it applies a

distinct, oddly and atypically sociological, standard, to clause (c):

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