Some Realism about Choice of Law Statutes and the Common Law:The Oregon Example

Abstract

Choice of law doctrine presents perpetual change. Common law doctrine is the primary driver of these changes, but change and reform need not come from common law alone. As Robert Leflar observed 45 years ago, "it should not make much difference whether a governing choice-of-law rule . . . is found in the common law or in a statute. The same rule might be formulated in either way." As if to test this proposition, the Oregon legislature adopted choice of law statutes for contracts and for torts and other non-contractual claims in 2001 and 2009.

This article assess the utility of choice of law statutes, on their own merits and as a substitute for common law reform. The article begins by surveying the choice of law landscape, with its twin problems of multiplicity of methods and complexity of methodology. The article also explains why federal law is unlikely ever to provide a solution. Multiplicity, at least, is here for the long haul. But perhaps state choice of law statutes can attack the problem of complexity?

This article thus turns to examining the Oregon statutes and their reception by state and federal courts. After noting the clear achievements of the statutes, the article also points out their costs, including failure to eliminate complexity and the real risk that courts will import old common methods and results into the new statutory structure (as has happened in Oregon). The article also addresses the prominent role -- good and bad -- that federal courts play in state choice of law doctrine.

After assessing the Oregon statutes in the specific context of that state, the article closes by drawing lessons from the Oregon experience for other states and assessing the reasons for and against statutory reform of choice of law, as compared to the status quo and the forthcoming Third Restatement. It will be no surprise that the article favors statutes and the Third Restatement over the status quo. As between statutes and the Third Restatement, the article is ultimately agnostic.