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Joseph William Singer, Against Choice-of-Law Clauses, 60 Willamette Law Review 557 (2025).


Abstract: Choice-of-law clauses are enforceable unless they violate the public policy of another state. While generally accepted and indeed lauded as a way to solve the choice of law problem in contract cases touching more than one jurisdiction, these clauses are not the panacea that their defenders claim them to be. This article provides a dissenting view. When a case is easy (everyone agrees which law applies and the chosen law is the "right one"), choice-of-law clauses are superfluous and unnecessary. But when a case is hard (two states have significant interests in applying their law and the chosen law violates a strong public policy of another state), choice-of-law clauses lose all their force. That is because conflict of laws doctrine denies enforcement of choice-of-law clauses when they violate the public policy of the state whose law would apply absent the clause. In such cases, courts (and lawyers) are not saved the effort of doing a normal choice-of-law analysis. Indeed, the analysis becomes even more complicated. We need to know, not just which state has the most significant relationship with the parties and the transaction, such that its law would apply absent the choice-of-law clause, but we need to figure out if its policy is "fundamental"--i.e., sufficiently strong to overcome the choice-of-law clause. Deferring to the parties' "choice" about what law governs ignores the fact that, when two laws conflict, it is usually the case that one of the states has an interest in not enforcing the contract or in regulating its terms. When that is the case, deferring to the chosen law becomes a substantive "better law" determination that freedom of contract is always better than regulatory protection through consumer protection laws or procedural rules about when a contract was made. We have freedom to contract, but we also have freedom not to contract. It is odd to privilege the interests of enforcement states over those that would not find an enforceable agreement or would find the agreement to violate minimum standards for agreements of that type. Choice-of-law clauses neither make conflict of laws cases easier to resolve nor constitute objective methods of choosing which jurisdiction's law is the most appropriate to apply to the parties and their transaction. Old-fashioned conflict of laws analysis is what helps us answer the question of what law to apply to a contract; choice-of-law clauses just get in the way.