Choice of law, the constitution, and lochner

Virginia Law Review

Volumn 94, Issue 6, 2008, Pages 1509-1566

  Stern, James Y ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 56449125929     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (358)

1. This Note uses the terms "choice of law," "conflict of laws," and "legislative jurisdiction" largely interchangeably.
2. See, e.g., Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-13 (1981);
3. see also Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249, 257-58 (1992);
4. Gene R. Shreve, Choice of Law and the Forgiving Constitution, 71 Ind. L.J. 271, 271 (1996);
5. Louise Weinberg, Choice of Law and Minimal Scrutiny, 49 U. Chi. L. Rev. 440, 440-41 (1982).
6. See John Harrison, The Free Exercise Clause as a Clause About Rules, 15 Harv. J.L. & Pub. Pol'y 169, 174 (1992).
7. Choice of law certainly has the potential to implicate the most controversial issues in American constitutional law, including same-sex marriage, abortion rights, and gun control. See Scott Fruehwald, Choice of Law and Same-Sex Marriage, 51 Fla. L. Rev. 799, 802 (1999);
8. Seth F. Kreimer, "But Whoever Treasures Freedom . . .": The Right to Travel and Extraterritorial Abortions, 91 Mich. L. Rev. 907, 910-12 (1993);
9. Allen Rostron, The Supreme Court, the Gun Industry, and the Misguided Revival of Strict Territorial Limits on the Reach of State Law, 2003 Mich. St. L. Rev. 115, 115-16;
10. see also Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity 3-4 (1981) (describing the role of conflicts of law with respect to slavery in precipitating national crisis in antebellum America) .
11. See Scott Fruehwald, The Rehnquist Court and Horizontal Federalism: An Evaluation and a Proposal for Moderate Constitutional Constraints on Horizontal Federalism, 81 Denv. U. L. Rev. 289, 290 (2003);
12. cf. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1179 (1989).
13. See E. Merrick Dodd, Jr., The Power of the Supreme Court to Review State Decisions in the Field of Conflict of Laws, 39 Harv. L. Rev. 533 (1926);
14. Oliver P. Field, Judicial Notice of Public Acts Under the Full Faith and Credit Clause, 12 Minn. L. Rev. 439, 440-41 (1928);
15. Stephen I. Langmaid, The Full Faith and Credit Required for Public Acts, 24 111. L. Rev. 383, 384 (1929);
16. G.W.C. Ross, Has the Conflict of Laws Become a Branch of Constitutional Law?, 15 Minn. L. Rev. 161, 180 (1931);
17. Comment, Full Faith and Credit to Statutes, 45 Yale L.J. 339, 339-40 (1935).
18. 198 U.S. 45 (1905).
19. See Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 Law & Hist. Rev. 293, 295 (1985);
20. David A. Strauss, Why Was Lochner Wrong?, 70 U. Chi. L. Rev. 373, 373 (2003) ("Would you ever cite this case in a Supreme Court brief, except to identify it with your opponents' position?").
21. Robert A. Sedler, Constitutional Limitations on Choice of Law: The Perspective of Constitutional Generalism, 10 Hofstra L. Rev. 59, 67 (1981). Other scholars have implied that the sins of Lochner were present in the Supreme Court choice of law doctrine. E.g., Donald Berman, To Brainerd Currie: A Fallen Giant, 46 Ohio St. L.J. 529, 532 (1985);
22. Lea Brilmayer & Charles Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 Harv. L. Rev. 1217, 1226 (1992);
23. Stephen Gardbaum, New Deal Constitutionalism and the Unshackling of the States, 64 U. Chi. L. Rev. 483, 565-66 (1997).
24. 10165 U.S. 578, 591(1897).
25. See, e.g., Erwin Chemerinsky, Constitutional Law: Principles and Policies 613-14 (3d ed. 2006);
26. Laurence H. Tribe, American Constitutional Law 1344 (3d ed. 2000); Jack M. Balkin, Plessy, Brown, and Grutter. A Play in Three Acts, 26 Cardozo L. Rev. 1689, 1701 (2005);
27. David Bernstein, Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism, 92 Geo. L.J. 1, 10 (2003).
28. See Michael G. Collins, October Term, 1896 - Embracing Due Process, 45 Am. J. Legal Hist. 71, 85-87 (2001);
29. Nathan Greene, The Allgeyer Case as a Constitutional Embrasure of Territoriality, 2 St. John's L. Rev. 22 (1927).
30. This figure is derived from Michael J. Phillips, The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s, 86 n.210 (2001). Professor Phillips lists fifteen cases, of which eleven expressly turn on liberty of contract doctrines and four use one of those eleven as a rule of decision. To Phillips's list, I have added three additional cases, all of which concern choice of law: New York Life Insurance Co. v. Head, 234 U.S. 149, 161 (1914) ("[I]t would be impossible to permit the statutes of Missouri to operate beyond the jurisdiction of that State and in the State of New York and there destroy freedom of contract without throwing down the constitutional barriers by which all the States are restricted within the orbits of their lawful authority and upon the preservation of which the Government under the Constitution depends."),
31. Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U.S. 143, 149-50 (1934)
32. (following Head), and Aetna Life Insurance Co. v. Dunken, 266 U.S. 389, 390 (1924) (same). An argument could also be made for the inclusion of Home Insurance Co. v. Dick, 281 U.S. 397, 398 (1930).
33. Phillips does discuss these cases in Michael J. Phillips, How Many Times Was Lochner-Era Substantive Due Process Effective?, 48 Mercer L. Rev. 1049, 1064 n.63, 1076 n.124 (1997).
34. In addition to the cases listed supra note 13, these are Compania General de Tabacos de Filipinas v. Collector of Internal Revenue, 275 U.S. 87, 91-92 (1927), St. Louis Cotton Compress Co. v. Arkansas, 260 U.S. 346, 348-49 (1922), New York Life Insurance Co. v. Dodge, 246 U.S. 357, 373-77 (1918), and Allgeyer, 165 U.S. 578.
35. See Phillips, supra note 13, at 86 n.210.
36. For an overview, see generally Stephen A. Siegel, The Revision Thickens, 20 Law & Hist. Rev. 631 (2002).
37. See infra note 93.
38. The most significant choice of law issue addressed by the Constitution is the relationship between federal and state law, dealt with in the Supremacy Clause of Article VI. Rather than conceive of state law as presumptively applicable but subject to preemption, nineteenth-century constitutional theory understood the Supremacy Clause as establishing a strict division of labor between the state and federal governments, an arrangement termed "Dual Sovereignty." This was framed in territorialist terms. See, e.g., Abelman v. Booth, 62 U.S. 506, 516 (1859) (stating that the boundary between federal and state power was "as if the line of division was traced by landmarks and monuments visible to the eye").
39. See Edwin S. Corwin, The "Full Faith and Credit" Clause, 81 U. Pa. L. Rev. 371, 385 (1933);
40. Albert A. Ehrenzweig, American Conflicts Law in Its Historical Perspective: Should the Restatement be "Continued"?, 103 U. Pa. L. Rev. 133, 135 (1954).
41. Chi. & Alton R.R. Co. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887) (announcing in dicta that "[w]ithout doubt, the constitutional requirement" of full faith and credit "implies that the public acts of every state shall be given the same effect by the courts of another state that they have by law and usage at home");
42. see also Comment, supra note 6, at 341.
43. 20As Professor Laycock has put it, "[t]o simultaneously apply the conflicting law of two states is impossible; to require each state to apply the law of the other is absurd; and to let each state apply its own law repeals the Clause." Laycock, supra note 2, at 297.
44. Harold G. Maier & Thomas R. McCoy, A Unifying Theory for Judicial Jurisdiction and Choice of Law, 39 Am. J. Comp. L. 249, 261 n.49 (1991).
45. E.g., Nicolo Machiavelli, The Prince (1513).
46. See generally Alex Mills, The Private History of International Law, 55 Int'l & Comp. L.Q. 1 (2006);
47. Hessel E. Yntema, The Historic Bases of Private International Law, 2 Am. J. Comp. L. 297 (1953).
48. See De Conflictu Legum Diversarum in Diversis Imperiis [The Conflict of Differing Laws of Different Governments] (1707), translated in Ernest G. Lorenzen, Huber's De Conflictu Legum, 13 111. L. Rev. 375, 403 (1919).
49. See D.J. Llewelyn Davies, The Influence of Huber's De Conflictu Legum on English Private International Law, 18 Brit. Y.B. Int'l L. 49, 65 (1937).
50. Ernest G. Lorenzen, Story's Commentaries on the Conflict of Laws-One Hundred Years After, 48 Harv. L. Rev. 15, 18-19 (1934).
51. Joseph Story, Commentaries on the Conflict of Laws § 609 (Boston, Little Brown, 8th ed. 1883).
52. In addition to the doctrines listed, it is worth noting that the Supreme Court initially ruled that state sovereign immunity-in many respects the inverse corollary of the theory of law as sovereign will-did not extend to suits brought in the federal court system. See Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 420 (1793), superseded by amendment, U.S. Const, amend. XI. Similarly, a state could not be sued in another state because no other state would be able to serve a state with process.
53. See Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction. 115 Harv. L. Rev. 1559, 1613-1614 (2002).
54. D'Arcy v. Ketchum, 52 U.S. (11 How.) 165, 174 (1850);
55. see also Hampton v. M'Connel, 16 U.S. (3 Wheat.) 234, 235 (1818);
56. Picquet v. Swan, 5 Mason 35, 54-55 (C.C. Mass. 1828) (Story, J.).
57. D'Arcy, 52 U.S. (11 How.) at 174.
58. 95 U.S. 714, 715 n.8 (1877).
59. Id. at 722 (stating that "every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory" but that "no State can exercise direct jurisdiction and authority over persons or property without its territory"). Notably for our purposes, the Lochner Era Court later determined that an individual debt obligation followed the debtor wherever he went, and thus the courts of any state where a debtor was present could assert jurisdiction over the debt as if it were tangible property.
60. See Harris v. Balk, 198 U.S. 215, 218 (1905).
61. The same was essentially true of the criminal jurisdiction of the United States government. The Court was willing to permit federal law to reach activities overseas only where the victim of the crime was the U.S. government, that is, the sovereign itself, United States v. Bowman, 260 U.S. 94, 98 (1922), or "in regions subject to no sovereign, like the high seas, or to no law that civilized countries would recognize as adequate." Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 355-56 (1909) (Holmes, J.).
62. Nielsen v. Oregon, 212 U.S. 315 (1909);
63. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 428 (1821) (Marshall, CJ.) ("[It is] clear, that a State legislature, the State of Maryland for example, cannot punish those who, in another State, conceal a felony committed in Maryland.");
64. cf. Strassheim v. Daily, 221 U.S. 280 (1911). For competing views on the force of these precedents, compare Seth F. Kreimer, Lines in the Sand: The Importance of Borders in American Federalism, 150 U. Pa. L. Rev. 973, 974-75 (2002), with Mark D. Rosen, Extraterritoriality and Political Heterogeneity in American Federalism, 150 U. Pa. L. Rev. 855 (2002).
65. See also Story, supra note 27, § 620, ("The common law considers crimes as altogether local, and cognizable and punishable exclusively in the country where they are committed.");
66. cf. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 337 (1816) (Story, J.) ("No part of the criminal jurisdiction of the United States can, consistently with the constitution, be delegated to state tribunals. ").
67. Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 293-94 (1888);
68. see also The Antelope, 23 U.S. (10 Wheat.) 66, 123 (1825) (Marshall, C.J.) ("The Courts of no country execute the penal laws of another.");
69. cf. Huntington v. Attrill, 146 U.S. 657 (1892). Indeed, the enactment by states of statutory wrongful death provisions in the years after the Civil War was a leading source of interstate choice of law questions.
70. See Corwin, supra note 18, at 385. It should be noted that in cases like Pelican, the Court affirmed the right of forum states not to enforce "penal" laws. Although the Court never faced a case in which a state's decision to enforce such a law was challenged, territorial limitationson the reach of penal laws were generally "taken for granted, as a principle fundamental and beyond question." Robert A. Leflar, Extrastate Enforcement of Penal and Governmental Claims, 46 Harv. L. Rev. 193, 196 (1932).
71. As early as McCulloch v. Maryland, in which the state of Maryland essentially sought to tax the operations of the federally chartered Bank of the United States, Chief Justice John Marshall allowed that while a state may tax "every object brought within its jurisdiction," the tax imposed by Maryland went beyond that by levying a tax upon an entity created by citizens of other states as well as by its own. 17 U.S. (4 Wheat.) 316, 429 (1819). Chief Justice Marshall essentially justified the principle of federal supremacy on the basis of the limits of interstate jurisdiction to tax.
72. See Morgan v. Parham, 83 U.S. (16 Wall.) 471 (1872) (dormant commerce clause);
73. State Tax on Foreign Held Bonds, 82 U.S. (15 Wall.) 300 (1872) (Contracts Impairment Clause);
74. St. Louis v. The Ferry Co., 78 U.S. (7 Wall.) 423 (1870) (no constitutional provision cited);
75. Ry. Co. v. Jackson, 74 U.S. (7 Wall.) 262 (1868) (same);
76. Hays v. Pac. Mail S.S. Co., 58 U.S. (17 How.) 596 (1854) (same);
77. see also Maurice H. Merrill, Jurisdiction to Tax-Another Word, 44 Yale L.J. 582 (1935).
78. Johnson Oil Ref. Co. v. Oklahoma ex rel. Mitchell, 290 U.S. 158 (1933);
79. First Nat'l Bank of Boston v. Maine, 284 U.S. 312 (1932);
80. Hans Rees' Sons, Inc. v. North Carolina ex rel. Maxwell, 283 U.S. 123 (1931);
81. Beidler v. S.C Tax Comm'n, 282 U.S. 1 (1930); Baldwin v. Missouri, 281 U.S. 586 (1930);
82. Farmers Loan & Trust Co. v. Minnesota, 280 U.S. 204 (1930);
83. Safe Deposit & Trust Co. v. Virginia, 280 U.S. 83 (1929);
84. Brooke v. City of Norfolk, 277 U.S. 27 (1928);
85. Blodgett v. Silberman, 277 U.S. 1 (1928);
86. Southern Ry. Co. v. Kentucky, 274 U.S. 76 (1927);
87. Wachovia Bank & Trust Co. v. Doughton, 272 U.S. 567 (1926);
88. R.I. Hosp. Trust Co. v. Doughton, 270 U.S. 69 (1926);
89. Frick v. Pennsylvania, 268 U.S. 473 (1925);
90. Provident Sav. Life Assurance Soc'y v. Kentucky, 239 U.S. 103 (1915);
91. Atchison, Topeka, & Santa Fe Ry. Co. v. O'Connor, 223 U.S. 280 (1912);
92. Buck v. Beach, 206 U.S. 392 (1907);
93. Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194 (1905);
94. Del., Lackawanna, & W. R.R. Co. v. Pennsylvania, 198 U.S. 341 (1905);
95. Fargo v. Hart, 193 U.S. 490 (1904);
96. Louisville & Jefferson Ferry Co. v. Kentucky, 188 U.S. 385 (1903).
97. Bonaparte v. Tax Court, 104 U.S. 592 (1881);
98. see also Joseph Henry Beale, Cases on Taxation 100-01 (1928).
99. See Charles W. McCurdy, The Knight Sugar Decision of 1895 and the Modernization of American Corporation Law, 1869-1903, 53 Bus. Hist. Rev. 304, 307 (1979);
100. see also Paul v. Virginia, 75 U.S. (8 Wall.) 168, 168 (1868);
101. Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 520 (1839);
102. Gerard Carl Henderson, The Position of Foreign Corporations in American Constitutional Law: A Contribution to the History and Theory of Juristic Persons in Anglo-American Law 102 (1918).
103. See Nat'l Mut. Bldg. & Loan Ass'n v. Brahan, 193 U.S. 635, 645 (1904) (permitting suit against a foreign corporation under local usury laws).
104. Fid. & Deposit Co. v. Tafoya, 270 U.S. 426, 435 (1926) (Holmes, J.) ("[A] corporation cannot be prevented from employing and paying those whom it needs for its business outside the State" as a condition of doing business in a given state.).
105. Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1868).
106. 44165 U.S. 578 (1897).
107. See Nutting v. Massachusetts, 183 U.S. 553, 557-58 (1902);
108. Hooper v. California, 155 U.S. 648 (1895).
109. St. Louis Cotton Compress Co. v. Arkansas, 260 U.S. 346, 349 (1922). Justice Holmes generally did not support territorial restrictions on state taxing power, and he later maintained that the Cotton Compress statute was invalid only because it crossed the line from tax to penalty.
110. See Compania General de Tabacos de Filipinas v. Collector of Internal Revenue, 275 U.S. 87, 100 (1927) (Holmes, J., dissenting).
111. See Ann Woolhandler, Public Rights, Private Rights, and Statutory Retroactivity, 94 Geo. LJ. 1015, 1020 (2006) (describing the nineteenth-century understanding of public rights as those "owned by the government-the sovereign people as a whole-rather than in persons' individual capacities").
112. See David Kennedy, International Law and the Nineteenth Century: History of an Illusion, 17 Quinnipiac L. Rev. 99, 112-13 (1997) (describing nineteenth-century theories of international relations).
113. See Loucks v. Standard Oil Co., 224 N.Y. 99, 111 (1918) (Cardozo, J.) ("The misleading word 'comity' has been responsible for much of the trouble. It has been fertile in suggesting a discretion unregulated by general principles.").
114. Duncan Kennedy, The Rise & Fall of Classical Legal Thought 268 (1998).
115. See Joseph H. Beale, A Treatise on the Conflict of Laws (1935). Beale drew heavily upon the work of British jurist A.V. Dicey. See A.V. Dicey, A Digest of the Law of England with Reference to the Conflict of Laws (1896).
116. See Slater v. Mexican Nat'l R.R. Co., 194 U.S. 120, 126 (1904) ("The theory of the foreign suit is that although the act complained of was subject to no law having force in the forum, it gave rise to an obligation, an obligatio, which . . . follows the person, and may be enforced wherever the person may be found.");
117. W. Union Tel. Co. v. Brown, 234 U.S. 542, 547 (1914);
118. Cuba R.R. Co. v. Crosby, 222 U.S. 473, 478 (1912);
119. Am. Banana Co. v. United Fruit Co., 213 U.S. 347 (1909).
120. 234 U.S. 149, 156-57 (1914).
121. Id. at 157.
122. See Hartford Accident & Indem. Co. v. Delta & Pine Land Co., 292 U.S. 143, 149-50 (1934);
123. Bradford Elec. Light Co. v. Clapper, 286 U.S. 145, 160, 163 (1932);
124. N.Y. Life Ins. Co. v. Dodge, 246 U.S. 357, 376-77 (1918).
125. See Tenn. Coal, Iron & R.R. Co. v. George, 233 U.S. 354 (1914); Atchison, Topeka & Santa Fe Ry. v. Sowers, 213 U.S. 55, 56 (1909);
126. cf. Bonaparte v. Tax Court, 104 U.S. 592, 592-93 (1881) (holding that state-issued bonds could not be made tax exempt in other states by the issuing state).
127. E.g., Aetna Life Ins. Co. v. Dunken, 266 U.S. 389, 393, 399 (1924);
128. Dodge, 246 U.S. at 358.
129. See Roche v. McDonald, 275 U.S. 449 (1928);
130. M'Elmoyle v. Cohen, 38 U.S. (13 Pet.) 312, 312 (1839). The Court was also willing to permit a state to defend against tort liability to enforce a contractual waiver of liability that was unenforceable in the forum state.
131. See, e.g., Pa. R.R. Co. v. Hughes, 191 U.S. 477 (1903).
132. 245 U.S. 412, 417 (1918).
133. Indeed, because the woman was a Texas citizen, traditional common law rules might have suggested that Illinois should have looked to Texas law to determine the woman's capacity to contract. Justice Holmes noted that if suit had been brought in Illinois, the contract might have been given effect "by physical force."
134. Id. at 415-16.
135. Beale, supra note 51, § 51; see also Dicey, supra note 51, at 56 ("The nature of a right acquired under the law of any civilised country must be determined in accordance with the law under which the right is acquired."); William Blackstone, 3 Commentaries on the Laws of England 109 ("[I]t is a settled and invariable principle in the laws of England, that every right when with-held must have a remedy, and every injury it's [sic] proper redress.");
136. cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (finding a right to have commission delivered, withholding the remedy of mandamus, and quoting the preceding passage from Blackstone).
137. For its part, Beale's gloss on the common law required public policy objections to be "strong." See Restatement (First) of Conflict of Laws § 612 (1934).
138. See Atchison, Topeka & Santa Fe Ry. Co. v. Nichols, 264 U.S. 348, 353 (1924);
139. Stewart v. Bait. & Ohio R.R. Co., 168 U.S. 445, 445 (1897);
140. Tex. & Pac. Ry. v. Cox, 145 U.S. 593, 604-05 (1892).
141. See Kenney v. Supreme Lodge of the World, 252 U.S. 411, 414 (1920);
142. Fauntleroy v. Lum, 210 U.S. 230, 237 (1908).
143. See, e.g., Bothwell v. Buckbee, Mears Co., 275 U.S. 274 (1927).
144. Anglo-Am. Provision Co. v. Davis Provision Co., 191 U.S. 373 (1903).
145. 286 U.S. 145, 160 (1932).
146. Broderick v. Rosner, 294 U.S. 629, 642 (1935).
147. See Clark v. Willard, 294 U.S. 211 (1935).
148. See Loucks v. Standard Oil Co., 224 N.Y. 99, 110-11 (1918) (Cardozo, J.) ("If a foreign statute gives the right, the mere fact that we do not give a like right is no reason for refusing to help the plaintiff in getting what belongs to him.").
149. See Herbert F. Goodrich, Public Policy in the Law of Conflicts, 36 W. Va. L.Q. 156, 170 (1929);
150. Arthur Nussbaum, Public Policy and the Political Crisis in the Conflict of Laws, 49 Yale L.J. 1027, 1027-28 (1940);
151. Note, The Public Policy Concept in the Conflict of Laws, 33 Colum. L. Rev. 463, 508 (1933).
152. N.Y. Life Ins. Co. v. Head, 234 U.S. 149, 161-62 (1914).
153. John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178, 182-83 (1936).
154. Perhaps this explains the occasional reference to the "due faith and credit clause." E.g., Olmsted v. Olmsted, 216 U.S. 386, 395 (1910);
155. Wabash R.R. Co. v. Flannigan, 192 U.S. 29, 37 (1904); Huntington v. Attrill, 146 U.S. 657, 666 (1892);
156. Fauntleroy v. Lum, 210 U.S. 230, 238-39, 242-45 (1908) (White, J., dissenting).
157. Medieval European law resolved many conflicts of law by looking to the law of a person's citizenship or tribal membership. See Mills, supra note 23, at 7. Notice that the words "statute," "status," and "estate" share the same root. Part of the explanation for this apparent extraterritoriality may lie in the remedies available to protect the status created by the domicil. Each of these could be protected by courts of equity, which were not territorially limited because they were said to "act upon the person."
158. See Polly J. Price, Full Faith and Credit and the Equity Conflict, 84 Va. L. Rev. 747, 804-805 (1998).
159. 76In Grosman, Justice Holmes did hint that a contract entered into by a married woman outside her domicile might not be valid even in the state where the contract was made when the law of her domicile denied her the power to make such a contract. Union Trust Co. v. Grosman, 245 U.S. 412, 416 (1918). Traditional status rules could be used to support both the majority's and the dissent's position in Yarborough v. Yarborough, 290 U.S. 202 (1933), but the Court repeatedly sought to ensure that each state had complete control over the disposition of land within its borders, and it therefore held that sister states could not act to transfer ownership of real property to their domiciliaries when they were disabled from holding it under the laws of the state where the property was situated.
160. See Olmsted, 216 U.S. 386;
161. Fall v. Eastin, 215 U.S. 1 (1909);
162. Clarke v. Clarke, 178 U.S. 186 (1900).
163. Indeed, the first Supreme Court opinion to state that the Full Faith and Credit Clause applied to sister state statutes dealt with one state's determination of the scope of the powers that a corporation had been authorized to exercise by the state that created it. See Chi. & Alton R.R. Co. v. Wiggins Ferry Co., 119 U.S. 615 (1887).
164. See Modern Woodmen of Am. v. Mixer, 267 U.S. 544 (1925);
165. Supreme Council of the Royal Arcanum v. Green, 237 U.S. 531 (1915).
166. See Broderick v. Rosner, 294 U.S. 629 (1935);
167. Converse v. Hamilton, 224 U.S. 243 (1912).
168. See Bradford Elec. Light Co. v. Clapper, 286 U.S. 145 (1932).
169. Modern Woodmen, 267 U.S. at 551.
170. 286 U.S. 145.
171. Id. at 157-58.
172. See supra Subsection I.B.I.
173. Kryger v. Wilson, 242 U.S. 171, 176 (1916) (Brandeis, J.). Contrast Justice Brandeis's opinions in Bradford, 286 U.S. 145, and Home Insurance Co. v. Dick, 281 U.S. 397 (1930), both of which overturned the application of forum law by state courts. Because the Court in Kryger was being asked to reverse a state court decision to apply the forum's law to a contract for the sale of land located within the forum, a full faith and credit challenge might have been more persuasive than a due process challenge, but only the latter challenge was made. Also worth noting is that in Kryger, the cases Justice Brandeis cited as authorities for the non-reviewability of state choice of law concerned decisions declining to review one state's interpretation of another state's law, not its antecedent rule for selecting the proper state whose law was to govern.
174. In the days before Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal courts may well have felt empowered to interpret anew a state's view of "general common law," at least where federal jurisdiction could be asserted. Consider that one area where federal courts frequently functioned as common law courts was in cases involving marine insurance contracts, precisely the subject matter at issue in Allgeyer.
175. See William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1539 (1984) ("The federal courts were always conscious in marine insurance cases that they were developing and administering a system of general common law that they shared with the state courts.").
176. But see Henry Schofield, The Supreme Court of the United States and the Enforcement of State Law by State Courts, 3 111. L. Rev. 195, 195 (1908) (arguing for Supreme Court review of errors of state law by state courts under the Fourteenth Amendment's Due Process Clause).
177. See Allen v. Alleghany Co., 196 U.S. 458, 463-65 (1905);
178. Johnson v. N.Y. Life Ins. Co., 187 U.S. 491, 495-96 (1903);
179. Lloyd v. Matthews, 155 U.S. 222 (1894);
180. see also Note, Misconstruction of Sister State Law in Conflict of Laws, 12 Stan. L. Rev. 653 (1960).
181. See supra Subsection I.B.2.
182. See infra text accompanying notes 132-33.
183. See Brainerd Currie, Selected Essays on the Conflict of Laws 183-184 (1963).
184. See Symeon C. Symeonides, Choice of Law in the American Courts in 2005: Nineteenth Annual Survey, 53 Am. J. Comp. L. 559, 595 (2005).
185. For a vivid judicial datum, see Paul v. National Life, 352 S.E.2d 550, 555 (W. Va. 1986) ("Lex loci delicti has long been the cornerstone of our conflict of laws doctrine. The consistency, predictability, and ease of application provided by the traditional doctrine are not to be discarded lightly, and we are not persuaded that we should discard them today.").
186. See, e.g., Lea Brilmayer, Governmental Interest Analysis: A House Without Foundations, 46 Ohio St. L.J. 459 (1985);
187. Perry Dane, Vested Rights, "Vestedness," and Choice of Law, 96 Yale L.J. 1191 (1987);
188. Friedrich K. Juenger, Conflict of Laws: A Critique of Interest Analysis, 32 Am. J. Comp. L. 1 (1984);
189. Harold L. Korn, The Choice-of-Law Revolution: A Critique, 83 Colum. L. Rev. 772 (1983).
190. See John Hart Ely, Choice of Law and the State's Interest in Protecting Its Own, 23 Wm. & Mary L. Rev. 173 (1981);
191. Scott Fruehwald, Constitutional Constraints on State Choice of Law, 24 U. Dayton L. Rev. 39 (1998);
192. Terry S. Kogan, Toward a Jurisprudence of Choice of Law: The Priority of Fairness over Comity, 62 N.Y.U. L. Rev. 651 (1987);
193. Laycock, supra note 2;
194. James R. Pielemeier, Why We Should Worry About Full Faith and Credit to Laws, 60 S. Cal. L. Rev. 1299 (1987);
195. Kermit Roosevelt III, The Myth of Choice of Law: Rethinking Conflicts, 97 Mich. L. Rev. 2448 (1999);
196. Shreve, supra note 2.
197. Lea Brilmayer, Rights, Fairness, and Choice of Law, 98 Yale L.J. 1277, 1296 (1989).
198. In addition, Part III.A., infra, will show that deontological concerns, which Brilmayer views as a distinctive concern of her approach to choice of law, were not far from the surface in the Lochner Era choice of law cases.
199. Laycock, supra note 2, at 322.
200. Id. at 324.
201. Dane, supra note 93, at 1209.
202. See sources cited supra note 9. Indeed, even the "vested rights" name given to this line of doctrine is misleading to the extent that it evokes notions of the Supreme Court as guardian of property rights. See Edward S. Corwin, The Basic Doctrine of American Constitutional Law, 12 Mich. L. Rev. 247, 275 (1914);
203. James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights 80 (1992). In the context of the Court's choice of law decisions, a better name might have been the "no vested right" doctrine, since it was the award of judgments in the absence of a vested right that concerned the Court.
204. For a more sophisticated typology of due process understandings, see the excellent discussion in John Harrison, Substantive Due Process and the Constitutional Text, 83 Va. L. Rev. 493, 504-543 (1997).
205. Perhaps this can be seen most clearly with respect to preemption questions. The enforcement of an unconstitutional state law would presumably not be due process of law, despite a state legislature's having enacted it, because the Constitution is the "supreme law of the land" and renders invalid the legislature's action. The constitutional text does not offer a correspondingly clear rule about interstate conflicts of law, but to say that this permits a state to make up its own rule is itself to make a choice of law judgment (that the forum state gets to make its own rule). This is the very issue explicitly decided for federal courts sitting in diversity by Klaxon Co. v. Stentor Electric Manufacturing. Co., 313 U.S. 487, 492 (1941). In short, a choice of law is unavoidable if due process has any meaning at all.
206. See Hans v. Louisiana, 134 U.S. 1, 13 (1890) ("It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.").
207. See Twining v. New Jersey, 211 U.S. 78, 100-01 (1908);
208. Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1856);
209. see also Edward Coke, The Second Part of the Institutes of the Laws of England 50 (W. Hein & Co. 1986) (1809);
210. Frank H. Easterbrook, Substance and Due Process, 1982 Sup. Ct. Rev. 85, 95-96.
211. See, e.g., Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting) ("The Fourteenth Amendment does not enact Mr. Herbert Spenser's Social Statics.");
212. see also Edward S. Corwin, Constitutional Revolution, Ltd. 11-38 (1908); Barry Friedman, The History of the Countermajoritarian Difficulty, Part Three: The Lesson of Lochner, 76 N.Y.U. L. Rev. 1383, 1385 (2001) ("Courts that appear to be substituting their own view of desirable social policy for that of elected officials often are said to Lochnerize.");
213. Thomas Reed Powell, The Judicially of Minimum-Wage Legislation, 37 Harv. L. Rev. 545, 545-46 (1924);
214. Cass R. Sunstein, Naked Preferences and the Constitution, 84 Colum. L. Rev. 1689, 1697 (1984) ("In the Lochner era, the Court attempted to create a separate category of impermissible ends, using the libertarian framework of the common law as a theoretical basis.").
215. See Sedler, supra note 9, at 67. Consider also Judge Jerome Frank's remark that Joseph Beale was "the right wing of the right wing." Laura Kalman, Legal Realism at Yale: 1927-1960, at 26 (1986) (quoting Frank).
216. See generally Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model (1993).
217. Professor Brilmayer has criticized modern-day interest analysis on the grounds that it is "pro-resident, pro-forum, and pro-recovery." Lea Brilmayer, Interest Analysis and the Myth of Legislative Intent, 78 Mich. L. Rev. 392, 398 (1980). While her claim might be taken to imply that the alternatives would be less "pro-recovery," it does not convey the degree to which the vested rights approach tilted against plaintiffs as a formal matter. Modern interest analysis allows a forum state to decide unilaterally whether to allow liability or not. Under the vested rights system, by contrast, both the state where the litigated events took place and the forum state had to agree to allow the plaintiff to recover.
218. Grant Gilmore, The Death of Contract 14 (1974).
219. Not that Justice Holmes always sided with defendants.
220. See, e.g., Mutual Life Ins. Co. v. Liebing, 259 U.S. 209 (1922);
221. Fauntleroy v. Lum, 210 U.S. 230 (1908).
222. These cases might also be compared to the development of common law tort doctrines during the nineteenth century, which has been explained by some scholars as an attempt by courts to subsidize the growth of American industry by limiting tort liability. See Morton J. Horwitz, The Transformation of American Law, 1780-1860, at 85-89 (1977);
223. s ee also Lawrence M. Friedman, A History of American Law 473 (2d ed. 1985). More recent scholarship has challenged this "subsidy thesis," however.
224. See, e.g., Gary T. Schwartz, Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation, 90 Yale L.J. 1717, 1720 (1981) ("[T]he nineteenth century negligence system was applied with impressive sternness to major industries and that tort law exhibited a keen concern for victim welfare.");
225. see also G. Edward White, Tort Law in America: An Intellectual History 3 (1980) (attributing much of the development of nineteenth century tort doctrine to jurisprudential and conceptual factors).
226. Moreover, Justice John Marshall Harlan, author of Lochner's other dissent, was similarly an advocate of territorialism. Allgeyer's freedom of contract was taken from Justice Harlan's dissent in a similar case in which he would have invalidated a state law on the grounds that it operated extraterritorially.
227. S ee Hooper v. California, 155 U.S. 648, 664 (1895) (Harlan, J., dissenting).
228. See Edward A. Purcell, Jr., Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America 152 (2000). With respect to Erie, it is worth noting that the only dissenters from Erie's decision in favor of the Erie Railroad Company and against the severely injured Harry Tompkins were Justices Pierce Butler and James McReynolds, the only two of the "four horsemen" hostile to President Franklin Roosevelt's New Deal still on the Court at the time. Erie, 304 U.S. at 81 (Butler & McReynolds, JJ., dissenting).
229. 245 U.S. 412 (1918).
230. See Strauss, supra note 8, at 386 ("The justices' failure was in a sense a lack of humility: an inability, or refusal, to understand that although they were vindicating an important value, matters were more complicated than they thought.");
231. see also Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16-17 (1962).
232. See John Hart Ely, Democracy and Distrust 83 (1980) ("[Nonresidents are a paradigmatically powerless class politically.").
233. See, e.g, Hartford Accident & Indem. Co. v. Delta & Pine Land Co., 292 U.S. 143 (1934).
234. Atchison, Topeka & Sante Fe Ry. Co. v. Nichols, 264 U. S. 348 (1924).
235. See Griffin v. McCoach, 313 U.S. 498 (1941).
236. 304 U.S. 64 (1938).
237. John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 937 (1973).
238. See W. Coast Hotel v. Parrish, 300 U.S. 379, 391 (1937) ("What is this freedom? The Constitution does not speak of freedom of contract.");
239. Friedman, supra note 105, at 1412 ("Contrary to revisionist claims, Lochner-era decisions simply defy attempts to divide the cases into doctrinal categories.").
240. For example, the extradition clause of Article IV required each state to surrender fugitives from criminal prosecution in another state to "the State having Jurisdiction of the Crime." Article IV also provided that no new states would be formed "within the Jurisdiction of any other State," strongly implying that the word "jurisdiction" was synonymous with the state's physical borders. The idea that a legal act had a location is also supported by the language of Article III and the Sixth Amendment, which both require criminal trials to be held in the state where the crime alleged "shall have been committed."
241. See, e.g., The Antelope, 23 U.S. (10 Wheat.) 66, 122 (1825) (Marshall, CJ.) ("No principle of general law is more universally acknowledged, than the perfect equality of nations.... It results from this equality, that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone.").
242. See Arthur K. Kuhn, Local and Transitory Actions in Private International Law, 66 U. Pa. L. Rev. 301, 303 (1918);
243. see also Stout v. Wood, 1 Blackf. 70 (Ind. 1820).
244. Corwin, supra note 100, at 276.
245. See generally William S. Holdsworth, The History of the Treatment of Choses in Action by the Common Law, 33 Harv. L. Rev. 997, 1027 (1920). Interestingly, it was Beale's nemesis Walter Wheeler Cook who sought to explode the notion that the chose in action was generally inalienable.
246. See Walter Wheeler Cook, The Alienability of Choses in Action, 29 Harv. L. Rev. 816 (1916);
247. see also Bonaparte v. Tax Court, 104 U.S. 592, 592 (1881) (holding that a municipal bond, as a chose in action, cannot be exempted from taxation outside the state where it had situs). The assignability of legal claims was well enough established that the authors of the first Judiciary Act perceived the need to make it clear that diversity of citizenship for purposes of federal court jurisdiction would not be based upon the citizenship of a legal assignee.
248. See Judiciary Act of 1789, ch. 20, §§ 11-12, 1 Stat. 73 (codified as amended at 28 U.S.C. § 1652 (1994)).
249. 2 William Blackstone, Commentaries on the Laws of England §540 (1768) (emphasis added).
250. See Ogden v. Saunders, 25 U.S. (12 Wheat.) 213 (1827).
251. See M'Millan v. M'Neill, 17 U.S. (4 Wheat.) 209 (1819).
252. See Dane, supra note 93, at 1196.
253. See David Currie, The Constitution in the Supreme Court: The Protection of Economic Interests, 1889-1910, 52 U. Chi. L. Rev. 324, 377 (1985) (stating that, in Allgeyer, "the due process clause had become the constitutional peg on which to hang Justice Story's territorialist choice-of-law views"). Even if this step was not an act of unjustified innovation, it may simply have been theoretically problematic. To the extent that Beale's theory was itself an attempt to create a choice of law rubric that was compatible with the premise that there were no super-national rules, recasting it as constitutional law may have undermined the case for the system and its strict separation of individual states' law-creating and law-enforcing powers as sovereigns.
254. How else can one make sense of Justice Holmes's statement that "jurisdiction is power," Mich. Trust Co. v. Ferry, 228 U.S. 346, 356 (1913), in light of his willingness to hold that a state was without jurisdiction to apply its own law in a dispute within its own courts, an act clearly within its "power"? Even vested rights critic Walter Wheeler Cook, who argued that limits on a state's power to affect legal relations do not "inhere in the constitution of the legal universe," conceded they could exist "where some limitation is imposed by some system of positive law, such as the federal constitution." Walter Wheeler Cook, The Logical and Legal Bases of the Conflict of Laws, 33 Yale L.J. 457, 484-85 (1924).
255. See, e.g., Roscoe Pound, Mechanical Jurisprudence, 8 Colum. L. Rev. 605 (1908);
256. see also Jack M. Balkin, "Wrong the Day it Was Decided": Lochner and Constitutional Historicism, 85 B.U. L. Rev. 677, 686 (2005) (describing conventional account that "during the 'Lochner Era' courts employed a rigid formalism that neglected social realities").
257. See Louise Weinberg, Theory Wars in the Conflict of Laws, 103 Mich. L. Rev. 1631, 1633-34 (2005).
258. James Audley McLaughlin, Conflict of Laws: The Choice of Law Lex Loci Doctrine, The Beguiling Appeal of a Dead Tradition, Part One, 93 W. Va. L. Rev. 957, 959 (1991).
259. Laura E. Little, Hairsplitting and Complexity in Conflict of Laws: The Paradox of Formalism, 37 U.C. Davis L. Rev. 925, 956-57 (2004).
260. Compare N.Y. Life Ins. Co. v. Dodge, 246 U.S. 357 (1918), with Mut. Life Ins. Co. v. Liebing, 259 U.S. 209 (1922).
261. W. Union Tel. Co. v. Brown, 234 U.S. 542, 547 (1914).
262. Strassheim v. Daily, 221 U.S. 280, 285 (1911).
263. Compare Coronado Coal Co. v. United Mine Workers, 268 U.S. 295 (1925), with Mine Workers v. Coronado Coal Co., 259 U.S. 344 (1922).
264. Young v. Masci, 289 U.S. 253 (1933);
265. MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916).
266. Wayne McCormack, Lochner, Liberty, Property, and Human Rights, 1 N.Y.U. J.L. & Liberty 432, 458 (2005) ("The rights involved in the Lochner era were generally described as 'liberty of contract' rather than property interests, although property-like notions drove many of the arguments.")
267. Six of these decisions invalidated statutes regulating wages. See Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 604-18 (1936);
268. Donham v. West-Nelson Mfg. Co., 273 U.S. 657 (1927);
269. Murphy v. Sardell, 269 U.S. 530, 530 (1925);
270. Dorchy v. Kansas, 264 U.S. 286, 289 (1924);
271. Chas. Wolff Packing Co. v. Court of Indus. Relations, 262 U.S. 522, 544 (1923);
272. Adkins v. Children's Hosp., 261 U.S. 525, 545-62 (1923). Two invalidated statutes regulating the number of hours employees could work. See Chas. Wolff Packing Co. v. Court of Indus. Relations, 267 U.S. 552, 569 (1925);
273. Lochner v. New York, 198 U.S. 45, 53-64 (1905). Two invalidated statutes that prohibited employers from refusing to hire members of labor unions.
274. See Coppage v. Kansas, 236 U.S. 1, 6-7, 14-26 (1915);
275. Adair v. United States, 208 U.S. 161, 172-76 (1908). The exceptional case is Fairmont Creamery v. Minnesota, 274 U.S. 1, 8 (1927), which invalidated a statute that required milk purchasers to pay the same price to farmers at different locations within the state.
276. Indeed, some decisions invalidated the employment regulations because they violated both liberty and property rights. E.g. Wolff Packing, 262 U.S. at 544 (holding that wage statute deprived an employer "of its property and liberty of contract without due process of law").
277. See Charles W. McCurdy, The "Liberty of Contract" Regime in American Law, in The State and Freedom of Contract 167 (Harry N. Scheiber ed., 1998).
278. In fact, in Home Insurance Co. v. Dick, Justice Brandeis did just that, finding that the defendants in the case had been deprived of property without due process of law because the application of forum law "increases their obligation and imposes a burden not contracted for." 281 U.S. 387, 409 (1930).
279. See German Alliance Ins. Co. v. Lewis, 233 U.S. 389, 406, 410-13 (1914).
280. Charles Warren, The New "Liberty" Under the Fourteenth Amendment, 39 Harv. L. Rev. 431, 440 (1926).
281. Thus in Head the Court spoke of the Fourteenth Amendment's protection against imposing a "perpetual contractual paralysis." N.Y. Life Ins. Co. v. Head, 234 U.S. 149, 161 (1914).
282. Paul v. Virginia, 75 U.S. (8 Wall.) 168, 181 (1868).
283. See supra Section I.A.
284. In Allgeyer v. Louisiana, for example, the defendants challenged Louisiana's law on the grounds that its "real purpose" was to force foreign corporations to appoint agents so that the corporations would be subject to franchise taxes, but that "it is beyond the legitimate sphere of state government to compel a foreign corporation to enter its borders for the transaction of business which can be done elsewhere." Brief of Plaintiffs in Error at 18, Allgeyer v. Louisiana, 165 U.S. 578 (1897) (No. 446). Justice Harlan's dissent in Hooper v. California, the principal source of Allgeyer's liberty of contract language, argued that a state could not criminalize transacting with "a foreign corporation that chooses not to enter the former state by its own agents." 155 U.S. 648, 664 (1895) (Harlan, J., dissenting).
285. Hence the Court's rationalization that an out-of-state motorist temporarily present in a particular state has consented to allow the state to appoint an agent for him who can accept service of process on his behalf. Hess v. Pawloski, 274 U.S. 352, 356 (1927).
286. See, e.g., Lynch v. United States, 292 U.S. 571, 579 (1934) (Brandeis, J.) (invalidating, under Fifth Amendment guarantee of due process, a congressional attempt to annul insurance contracts that were "valid when made").
287. See Ettor v. City of Tacoma, 228 U.S. 148, 156-58 (1913) (unanimously holding that a "right to compensation was a vested property right" and retroactive repeal of statutory cause of action violated Fourteenth Amendment).
288. Forbes Pioneer Boat Line v. Bd. of Comm'rs, 258 U.S. 338, 339-40 (1922).
289. See, e.g., Champlin Ref. Co. v. Corp. Comm'n, 286 U.S. 210, 240-43 (1932);
290. Cline v. Frink Dairy Co., 274 U.S. 445, 453-65 (1927);
291. Connally v. Gen. Constr. Co., 269 U.S. 385, 391-95 (1926);
292. Am. Seeding Mach. Co. v. Kentucky, 236 U.S. 660, 661-62 (1915);
293. cf. McBoyle v. United States, 283 U.S. 25, 26-27 (1931) (Holmes, J.) (construing a federal criminal statute narrowly because "fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed"). In the context of criminal law, doctrines constraining judicial crime-creation are typically justified with reference to the separation of powers, notice to the individual, and a concern for arbitrary (we might say, non-neutral) enforcement of the law.
294. See John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 190 (1985).
295. See Chi., Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226, 234-41 (1897) (dictum);
296. Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).
297. Francis Wharton, Retrospective Legislation and Grangerism, 3 Int'l Rev. 50, 57 (1876).
298. See Wallace Mendelson, A Missing Link in the Evolution of Due Process, 10 Vand. L. Rev. 125, 133 (1956).
299. See generally Gordon S. Wood, The Origins of Vested Rights in the Early Republic, 85 Va. L. Rev. 1421 (1999).
300. See, e.g., Standard Pipe Line Co. v. Miller County Hwy. & Bridge Dist., 277 U.S. 160, 162-63 (1928);
301. Road Improvement Dist. v. Mo. Pac. R.R., 274 U.S. 188, 192-94 (1927);
302. Myles Salt Co. v. Bd. of Comm'rs, 239 U.S. 478, 483-85 (1916).
303. See Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194, 202 (1905).
304. See Michel Rosenfeld, Contract and Justice: The Relation Between Classical Contract Law and Social Contract Theory, 70 Iowa L. Rev. 769, 832 (1985).
305. Indeed, the idea that due process of law precluded the extraterritorial application of law was not confined to legal conflicts between two states.
306. See Home Ins. Co. v. Dick, 281 U.S. 397 (1930) (deciding conflict between law of Texas and Mexico);
307. Compania General de Tabacos de Filipinas v. Collector of Internal Revenue, 275 U.S. 87 (1927) (deciding conflict between the Philippine protectorate and France);
308. see also W. Union Tel. Co. v. Brown, 234 U.S. 542, 547 (1914) (citing the Supremacy Clause rather than due process to resolve a conflict between South Carolina and the U.S. federal government).
309. See Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence 10 (1993).
310. Id. at 114.
311. See Barry Cushman, Rethinking the New Deal Court 90 (1998); McCurdy, supra note 146, at 167.
312. It is perhaps in light of this view that Justice Holmes viewed only those government regulations that secured "an average reciprocity of advantage" for those being regulated as exempt from the Fifth Amendment's "just compensation" requirement when the regulations affected rights of property ownership.
313. See Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).
314. See James Madison, Sovereignty (1835), reprinted in 9 Writings of James Madison 568, 570-71 (G. Hunt ed., 1910) (arguing that the establishment of civil society "must result from the free consent of every individual").
315. 8 Owen M. Fiss, History of the Supreme Court of the United States: Troubled Beginnings of the Modern State, 1888-1910, at 82 (1993). For a forceful rebuttal to this interpretation, see Herbert Hovenkamp, The Cultural Crises of the Fuller Court, 104 Yale L. J. 2309, 2312-14 (1995).
316. See Munn v. Illinois, 94 U.S. 113, 124 (1876) (stating that formation of the social compact "does not confer power upon the whole people to control rights which are purely and exclusively private; but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another") (citation omitted);
317. see also Yick Wo v. Hopkins, 118 U.S. 356, 369-70 (1886).
318. 3 U.S. (3 Dall.) 386, 388 (1798) (emphasis altered);
319. see also Wilkinson v. Leland, 27 U.S. (2 Pet.) 627, 658 (1829) (Story, J.) ("We know of no case, in which a legislative act to transfer the property of A. to B. without his consent, has ever been held a constitutional exercise of legislative power in any state in the union.") (emphasis added).
320. Mut. Life Ins. Co. v. Liebing, 259 U.S. 209, 214 (1922) (emphasis added);
321. see also The Federalist No. 44, at 250 (James Madison) (Clinton Rossiter ed., 1961) ("[L]aws impairing the obligation of contracts are contrary to the first principles of the social compact and to every principle of sound legislation.") (emphasis added). Admittedly, the decision in Liebing upheld a state's application of its own state law to a contract.
322. John Locke, Two Treatises of Government 284 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690).
323. Consider Abraham Lincoln's declaration: "[N]o man is good enough to govern another man, without that other's consent. I say this is the leading principle-the sheet anchor of American republicanism." Abraham Lincoln, Speech at Peoria, 111. (Oct. 16, 1854), reprinted in 2 Collected Works of Abraham Lincoln 266 (Roy P. Basier ed., 1953).
324. Cass R. Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873, 874 (1987).
325. Somerset v. Stewart, 98 Eng. Rep. 499, 510 (K.B. 1772);
326. see also Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 612 (1842) (Story, J.) (holding that, but for the inclusion of the Fugitive Slave Clause in the Constitution, any slave who escaped to a free state would have been made free, regardless of his masters' claimed property rights).
327. See, e.g., Second Employers' Liab. Cases, 223 U.S. 1, 50 (1912);
328. see also David E. Bernstein, Lochner's Legacy's Legacy, 82 Tex. L. Rev. 1, 23 (2003);
329. Woolhandler, supra note 47, at 1024.
330. Doctrinally, nonretroactivity and nonextraterritoriality were both qualified by the government's inherent police power. Understood as the general means of protecting health, safety, and welfare, however, the police power simply reflected the goals that motivated individuals to form civil society in the first place. Thus, to say that the Court permitted modification of common law rules only when justified by police power interests does not reflect a bias in favor of the common law. Cf. Cass R. Sunstein, Reply-Lochnering, 82 Tex. L. Rev. 65, 69-70 (2003) (arguing that the Court in the Lochner Era had a "limited" view of the police power when it came to legislatures departing from the common law). Rather, it reflects the view that any change in private ordering had to accord with the powers granted by naturally autonomous individuals, which were not thought to include the power to redistribute for redistribution's own sake.
331. For a thorough and critical discussion of this account, see Barry Cushman, Rethinking the New Deal Court, 80 Va. L. Rev. 201 (1994).
332. See also G. Edward White, Constitutional Change and the New Deal: The Internalist/Externalist Debate, 110 Am. Hist. Rev. 1094 (2005).
333. See Cushman, supra note 181, at 203 n.3.
334. See Barry Cushman, Some Varieties and Vicissitudes of Lochnerism, 85 B.U. L. Rev. 881, 961-962 (2005).
335. In fact, the public-private distinction partly developed out of issues related to the conflict of laws, since it was the development of sovereignty theories that made the conception of a distinct public sphere possible. See Morton J. Horwitz, The History of the Public/Private Distinction, 130 U. Pa. L. Rev. 1423, 1423 (1982).
336. Loucks v. Standard Oil Co., 224 N.Y. 99, 110 (1918) (Cardozo, J.) ("The plaintiff owns something, and we help him get it.").
337. Joseph H. Beale, A Treatise on the Conflict of Laws § 4.12 (1935).
338. See Horwitz, supra note 184, at 1425-26.
339. See, e.g., Michael S. Green, Note, Legal Realism, Lex Fori, and the Choice-of-Law Revolution, 104 Yale L.J. 967, 967 (1995) (noting that the "choice-of-law revolution" is "widely recognized to have been a product of legal realism").
340. Ernest G. Lorenzen, Territoriality, Public Policy and the Conflict of Laws, 33 Yale L.J. 736, 745-46 (1924).
341. See David F. Cavers, A Critique of the Choice-of-Law Problem, 47 Harv. L. Rev. 173, 193 (1933).
342. See generally W.W. Cook, 'Immovables' and the 'Law' of the 'Situs': A Study in the Ambiguity of Legal Terminology, 52 Harv. L. Rev. 1246, 1247-48 (1939).
343. Lorenzen, supra note 189, at 746.
344. I am grateful to Professor Michael Collins for suggesting this idea.
345. See generally Charles R. Geisst, Wall Street: A History 238-40 (1997);
346. George Wolfskill, The Revolt of the Conservatives: A History of the American Liberty League, 1934-1940 (1962);
347. Frederick Rudolph, The American Liberty League, 1934-1940, 56 Am. Hist. Rev. 19 (1950).
348. See Roosevelt, supra note 94, at 2459 (noting that Cook's "central attack was aimed at the jurisprudential groundwork of Beale's theory, his understanding of the nature of law and rights").
349. Walter Wheeler Cook, An Unpublished Chapter of the Logical and Legal Bases of the Conflict of Laws, 37 U. 111. L. Rev. 418 (1943), in Selected Readings on Conflict of Laws 97, 99 (Maurice S. Culp ed., 1956).
350. For this reason, Cook argued that the separation of law and equity artificially suggested that only the common law defined property rights. The availability of equitable remedies, in Cook's view, was as central to the nature of ownership as the common law's rules. See Walter W. Cook, The Place of Equity in Our Legal System, 3 Am. L. Sch. Rev. 173 (1912).
351. Cook, supra note 133, at 475 ("[A] court never enforces foreign rights but only rights created by its own law.").
352. See G. Edward White, From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth-Century America, 58 Va. L. Rev. 999, 1025-26 (1972).
353. Karl N. Llewellyn, Some Realism About Realism-Responding to Dean Pound, 44 Harv. L. Rev. 1222, 1233 (1931).
354. 291 U.S. 502 (1934).
355. See Munn v. Illinois, 94 U.S. 113, 124-26 (1876).
356. Hence Justice Roberts's statement that '"affected with a public interest' is the equivalent of 'subject to the exercise of the police power.'" Nebbia, 291 U.S. at 533.
357. 294 U.S. 532, 547-50 (1935). The decision was written by Justice Harlan Fiske Stone, later the author of International Shoe and Carotene Products. For an account of the close relationship between Stone, former dean of the Columbia Law School, and Walter Wheeler Cook, the highest paid member of its faculty, see George Rutherglen, International Shoe and the Legacy of Legal Realism, 2001 Sup. Ct. Rev. 347, 354-56 (2002). Justice Stone's long-standing skepticism of vested rights theories of choice of law was evident in his refusal to join Justice Brandeis's opinions for the majority in Yarborough v. Yarborough, 290 U.S. 202, 213 (1933), and Bradford Electric Light Co. v. Clapper, 286 U.S. 145, 163 (1932).
358. Finley P. Dunne, Mr. Dooley on the Choice of Law 52 (Edward J. Bander ed. 1963).