Choice of Law as Statutory Interpretation: the Rise and Decline of Governmental Interest Analysis

Governmental interest analysis revolutionized choice of law in the United States and heavily influenced the Second Restatement of the Conflict of Laws, the most widely followed method of resolving conflicts among the 50 states. The key insight that this legal revolution was based on was that choice of law is a matter of interpreting the substantive laws in question. Proponents claimed legitimacy for the theory on the grounds that it was more faithful to legislative preferences than the then-prevailing approaches. But the theory is based on the highly purposive approach to interpreting statutes championed by the Legal Process School, whose methods dominated statutory interpretation around the time the theory was developed. Since that time, statutory interpretation has undergone a revolution of its own. The high purposivism of the Legal Process School has been mostly repudiated. Few would now maintain, as Brainerd Currie (the father of governmental interest analysis) did, that courts faced with statutory silence on a question should try to imagine how the legislature would have resolved the question.

This Article critically examines governmental interest analysis in light of the revolution that has occurred in the field of statutory interpretation since Currie elaborated his approach. We agree that choice of law can be understood as a matter of interpreting forum law with respect to its applicability to multi-state cases. But, drawing from the textualist critique of the high purposivism of the Legal Process era, we show that Currie-style governmental interest analysis cannot claim legitimacy as more faithful to legislative preferences than other possible interpretive approaches. Consistent with its general shift away from purposivism in statutory interpretation, the U.S. Supreme Court has updated its approach to federal choice of law through the adoption of a presumption against extraterritoriality. The states, on the other hand, have lagged in bringing these lessons to bear on their choice-of-law methodologies, and Currie-style interest analysis survives, albeit tenuously. In the states that continue to follow Currie, governmental interest analysis is frozen in amber, persisting in an environment that has rejected its core premises.

The American Law Institute’s current project of elaborating a Third Restatement of the Conflict of Laws may accelerate the end of Currie-style governmental interest analysis. The draft Third Restatement endorses Currie’s claim that choice of law is a matter of statutory interpretation (at least in part). At the same time, however, it dramatically revises Currie’s legacy by mostly rejecting his purposivist approach to interpretation. The draft Third Restatement’s disavowal of an overtly purposivist approach is broadly consistent with the modern critique of purposivism. If the draft Third Restatement becomes as widely adopted as the Second Restatement was, it would hasten the demise of Currie-style interest analysis.