- Collection:
- Georgia Law Review
- Title:
- The Return of the Unprovided-For Case
- Creator:
- Green, Michael S.
- Date of Original:
- 2017-01-01
- Subject:
- University of Georgia. School of Law
Law--Study and teaching
Georgia Law Review Association - Location:
- United States, Georgia, Clarke County, Athens, 33.96095, -83.37794
- Medium:
- articles
- Type:
- Text
- Format:
- application/pdf
- Description:
- The unprovided-for case is a puzzle that arises under
governmental 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 seems
to apply. There is a gap in the law. After its discovery by
Brainerd Currie in the 1950s, the unprovided-for case
proved to be an embarrassment for interest analysts and a
focal point for critics.
In 1989, however, Larry Kramer published an argument
that the unprovided-for case is a myth. There is no gap in
the law. Kramer's argument has been well-received, so
much so that discussion of the unprovided-for case has
receded among advocates and critics of interest analysis
alike.
But the myth is a myth. What Kramer actually shows is
not that preexisting law always applies in the unprovided-
for case, but that regulatory policies can always be found
to recommend law to fill the gap that the unprovided-for
case creates. These policies are reasons for laws. They are
not themselves laws. Law is not found in the unprovided-
for case-it is made.
One might think that looking to freestanding regulatory
policies to create law in the unprovided-for case is not a
serious problem, since that is what courts normally do
when there is a gap in the law. One would be wrong. If a
court must look to freestanding regulatory policies to
create law in the unprovided-for case, it must do the same
in all choice-of-law cases, for these policies are relevant to
them too. Interest analysis collapses as a result, leaving
no clear choice-of-law method in its place.
Unprovided Case -- Interest analysis -- Courts -- Law -- Other Law - External Identifiers:
- Metadata URL:
- https://digitalcommons.law.uga.edu/glr/vol51/iss3/3
- Holding Institution:
- Alexander Campbell King Law Library
- Rights:
-
