New article—Constitutionalizing Interstate Relations: The Temptation of the Dark Side

On the inconsistency between choice of law cases and interstate sovereign immunity cases


I have a short article out in the Harvard Journal of Law and Public Policy, on the Constitution and choice of law. There's no abstract, but here's how it begins:

What does the Constitution have to say about interstate relations? Well, it depends on how you ask.

One of the main topics in interstate relations is the question of what is called choice of law, which sounds very technical but fundamentally is the question of who governs—that is, which state gets to govern any given transaction.

The same kind of question comes up at the federal level—federal law versus state law—but it is dealt with by the Supremacy Clause of the Constitution, which makes clear that if a federal law is constitutional, it is controlling.1But there is no Supremacy Clause for state law, which has forced people who worry about this question to look harder and elsewhere for some sort of hint about which state is supposed to govern which transaction.

Now, the Supreme Court has largely abdicated any control of the topic of choice of law. And just to give a concrete example: in 1981, the Supreme Court decided a case called Allstate Insurance v. Hague. A friend and learned scholar has described this case to me as one of the most indefensible Supreme Court opinions on any topic ever. . . .

But not all issues in interstate relations are left to the states. Last year, in a case called Franchise Tax Board v. Hyatt, the Supreme Court had a very different question of interstate relations—or, at least, what they thought was a very different question—which is whether or not one state, in this case the State of California, ought to be able to claim sovereign immunity in another state's court, in that case, the State of Nevada.

This too is a question of interstate relations. One might even call it a question of choice of law.

And from the beginning of Part II:

One way forward would be for the Supreme Court to constitutionalize choice of law doctrine. Professor Douglas Laycock has advocated this in a groundbreaking and important article. It uses some constitutional doctrines I do not completely endorse to achieve some results that I think might be good. So, we might call this "the temptation of the dark side of The Force."

And it is tempting indeed. I would be reasonably happy living in a world where the Constitution and Supreme Court doctrine controlled all questions of interstate relations. This is not an area where the states can be neutral arbiters, and the Supreme Court is as good a neutral arbiter as we have these days.

Yet as I have suggested, I have some textual misgivings about that world. . .

The whole thing is only 13 pages. These remarks grew out of a panel with Steve Sachs, Douglas Laycock, and David Stras that you can watch here.

EDIT: I changed the title of this post, because I (oops) forgot the title of my own article. Speaking of the title, from the comments:

This breaks new ground in authorship. The bottom of the barrel was long reached for a catchy titles unrelated to the actual text but which give allusions to popular culture (in this case Star Wars), but Prof. Baude didn't let that stop him it seems.

NEXT: Today in Supreme Court History: February 1, 1816

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  1. This breaks new ground in authorship. The bottom of the barrel was long reached for a catchy titles unrelated to the actual text but which give allusions to popular culture (in this case Star Wars), but Prof. Baude didn’t let that stop him it seems.

    I got some more Star Wars titles for whomever else on this blog may be interested:

    “Unlimited Power: The Interstate Commerce Clause in Neo Liberal Thought”

    “He’s No Good To Me Dead: Non-lethal Arms and the Second Amendment”

    “You’ll Find This Health Care Plan Fully Operational: The ACA in the Biden Administration”

    1. I can just see Emperor Palpatine, in that accent of his, exclaiming:

      “You say you want to balance the interests of the states in the dispute. Feel the FULL POWER of the dark side! Lex Locus Delecti! [Cackle, cackle, cackle.]”

      1. Legit funny. Thanks.

    2. So… does it break new ground? Or did we reach the bottom of the barrel a long time ago?

      1. The ground is below the barrel.

        Or as my former partner used to say, if you are down in the gutter, there is always someone who can drag you down to the sewer.

        1. So, it reaches new barrels? Breaks the bottom of the ground?

    3. The use of Star Wars memes in law articles: The temptation of the Dork Side.

      1. “The Pun-Force strong with this one is.” — Yoda, in an unrecorded moment.

  2. I have to admit, I missed your posts!

    Interesting article. Initial thoughts-

    1. A discussion of the evolution of choice of law without a reference or footnote to Brainerd Currie? Interesting.

    2. After reading the article, I just fail to see the problem that you do. You seem to think that there are two things that are the same, when in fact they are different:

    A. A state’s choice (conflict) of laws rules in general.

    B. The ability of a state to breach the sovereign immunity of another state within its own courts.

    I don’t see these as creating this problem that you do.

    Think of this in terms of separate sovereign states.

    Acmeland and Bakerstan are two states. The issues that are involved in terms of applying the law between A & B are markedly different when it comes to cases involving the citizens of A & B, as opposed to the governments of A & B. Put more simply, the basic issues of comity that we understand will traditionally govern when it comes to cases involving the citizens, but when it comes to the governments themselves, they are able to employ “traditional diplomatic and military tools[.]”

    Put more simply, where you see some great tension between Franchise Tax Board and Hague, I see no real tension at all.

    Finally, I happen to disagree that either Story or The First Restatement of Conflicts tends to be a great approach.

    1. when it comes to the governments themselves, they are able to employ “traditional diplomatic and military tools[.]”

      If that’s true—and I have some doubts—wouldn’t that mean that there’s less justification for federal oversight in that area, rather than more?

      1. You have doubts that the state militias should duke it out?

      2. My hypothetical was discussing traditional (foreign) states, not American states in a federal system.

        Hence why I do not understand Baude’s confusion.

  3. Another place where this issue came up was the “drive-by” class actions that led to the Class Action Fairness Act. In one case Vermont courts refused to recognize a collusive nationwide class action settlement because there had not been a violation of Vermont law. Of Georgia law, maybe, but not Vermont law. If courts stop domesticating out of state judgments applying the wrong law the Supreme Court doesn’t have enough time to reverse them all.

  4. Think with a bit more particularity, perhaps. Choice of law generally deals with tort claims. What is the role of the state legislature in a tort claim? Do they set the standards, reflecting the judgment of the people, or do they merely create the cause of action?

    If Able sues Baker in the state of Fredonia, which in addition to being the forum, has the greatest interest in the case (perhaps the Fredonia state legislature has even set conflicts rules that mandate interest balancing), but the accident happened in the state of Lincoln, can Baker invoke the law of the place of the delict as a due process right over and against the equitable judgment (or even the statutory mandate) of the courts of Fredonia? The answer might be to look at what the legislature of Fredonia has specifically guaranteed its people.

    Top of the head. likely wrong, not advice, don’t rely. But any attempt to set a categorical national constitutional rule as to state practice in this area should probably set off a loud klaxon.

    Mr. D.

  5. Different states with different laws?

    Look, merge the 50 states into one big state and merge it with the federal government, like they sometimes merge county and city governments.

    Have the same law for every part of the country.

    One Faith, one King, one Law!

    There’s my answer, now what was your question?

  6. Nice article by Professor Baude. Short and sweet and to the point.

  7. NH v. MA over the income tax issue is a far more significant issue than many may think.

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