The Return of the Unprovided-For Case

The unprovided-for case is a puzzle that arises undergovernmental interest analysis, the predominant choice-of- law approach in the United States. As its name suggests,in the unprovided-for case the law of no jurisdiction seemsto apply. There is a gap in the law. After its discovery byBrainerd Currie in the 1950s, the unprovided-for caseproved to be an embarrassment for interest analysts and afocal point for critics.In 1989, however, Larry Kramer published an argumentthat the unprovided-for case is a myth.

There is no gap inthe law. Kramer's argument has been well-received, somuch so that discussion of the unprovided-for case hasreceded among advocates and critics of interest analysisalike.But the myth is a myth. What Kramer actually shows isnot that preexisting law always applies in the unprovided-for case, but that regulatory policies can always be foundto recommend law to fill the gap that the unprovided-forcase creates. These policies are reasons for laws.

They arenot themselves laws. Law is not found in the unprovided-for case-it is made.One might think that looking to freestanding regulatorypolicies to create law in the unprovided-for case is not aserious problem, since that is what courts normally dowhen there is a gap in the law. One would be wrong. If acourt must look to freestanding regulatory policies tocreate law in the unprovided-for case, it must do the samein all choice-of-law cases, for these policies are relevant tothem too.

Interest analysis collapses as a result, leavingno clear choice-of-law method in its place.