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

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 once observed, “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.” 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 state choice-of-law statutes provide some hope for tackling the problem of complexity.

To that end, this Article examines the Oregon choice-oflaw 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. The Article also addresses the prominent role—good and bad—that federal courts play in state choice-of-law doctrine. 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.