This Essay analyzes three methods of avoiding the doctrinal disarray in American choice of law: imposing constitutional restrictions on personal jurisdiction and therefore limiting the plaintiff’s ability to forum shop for favorable choice of law; applying the presumption against extraterritorial application of federal statutes; and enforcing contractual choice-of-forum and choice-of-law clauses. Each method of avoidance has its advantages and its disadvantages. The former consist mainly in giving the parties and the courts more control over choice of law in a more determinate way. The latter arise from the uncertainty created by adding another layer of ad hoc evasions to the other complications of choice of law. The law of personal jurisdiction largely depends upon an analysis of all the factors that go into establishing “minimum contacts.” The extraterritorial application of federal statutes depends upon the context, both textual and factual, in which they operate. And choice-of-forum and choice-of-law clauses depend upon the terms and interpretation of the contracts in which they are found.
George Rutherglen, A Choice by Any Other Name: Ad Hoc Substitutes for Choice of Law, 63 Virginia Journal of International Law Online, 1–18 (2022).