Choice of Law Step Zero

About the Speaker

Carlos M. Vázquez is the Scott K. Ginsburg Professor of Law at Georgetown University. He previously served as Associate Dean for Graduate and International Programs. Vázquez was a law clerk to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. He then practiced law with Covington and Burling in Washington, DC, before joining the faculty of Georgetown Law. He has been a visiting professor at Harvard Law School and Yale Law School.  From 2000 to 2003, he was the United States member of the Inter-American Juridical Committee, the organ of the Organization of American States responsible for juridical matters and for promoting the progressive development and codification of international law (public and private) in the Americas. He has also served as Co-Director of the Center for Transnational Legal Studies in London. He is a member of the American Law Institute, where he is an adviser to the Fourth Restatement of Foreign Relations Law. He is an honorary member of the Board of Editors of the American Journal of International Law.  His scholarship has appeared in the Harvard Law Review, Yale Law Journal, Columbia Law Review, and American Journal of International Law, among numerous other journals.  He is the co-author of Conflict of Laws: Cases and Materials (with Lea Brilmayer, Jack Goldsmith, Erin O’Hara O’Connor, and John Coyle).

Abstract

According to the courts of virtually all U.S. states, the first question a court should ask when it is faced with a choice-of-law issue is whether the laws of the states with connections to the dispute are the same or different in content.  I call this Choice of Law Step Zero because the court’s finding that the laws of the connected states are the same is understood to obviate the choice-of-law analysis entirely.  Although Step Zero may seem self-evident and uninteresting, behind its seemingly straightforward logic lie profound complexities that implicate fundamental questions about the nature of the choice-of-law enterprise.  This article identifies two competing views regarding the sequence in which the courts that recognize Step Zero should approach the steps in a choice-of-law analysis.  The approaches reflect contrasting theories about the nature of the choice-of-law enterprise and yield divergent results in some circumstances.