The Volokh Conspiracy

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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.