Legal Realism, Lex Fori, and the Choice-of-Law Revolution

Abstract

The choice-of-law revolution rejected the previously dominant view that a state has the sole power to determine how events occurring within its territory should be adjudicated by other states. The revolution is widely recognized to have been a product of legal realism. Nevertheless, an adequate understanding of this relationship has been hampered by a common misunderstanding. The prevailing view is that the revolutionaries' legal realism led them to accept a consequentialist' jurisprudence, in particular, a jurisprudence under which advancement of the policies of the forum state guides adjudication. Commentators then cite the revolutionaries' acceptance of this jurisprudence as the reason that the revolutionaries advocated the application of the lex fori or law of the forum (a choice-of-law principle we can call lexforism2) whenever the forum is interested in the application of its law. This account of the relationship between legal realism and the revolutionaries' lexforism is often presented by those, such as Lea Brilmayer and Perry Dane,3 who offer as an alternative certain rights-based or deontological4 theories of adjudication. Such rights-based theories of adjudication, they claim, are incompatible with the revolutionaries' lexforism. Brilmayer's and Dane's account of the revolution is logically and historically in error. It is logically in error because, far from being essentially consequentialist, legal realism is compatible with any normative theory of adjudication, including those in which the policies of the forum are subordinated to the rights of the litigants. Clarifying this logical error helps to explain an important historical error in the account: One of the foremost revolutionaries, Walter Wheeler Cook, did not accept that lexforism follows