Volume 71, Number 1

April 1996

Choice of Law in Complex Litigation

Larry Kramer

Nearly all proceduralists agree that all the claims in a complex case should be decided under a single substantive law or, at the very least, under a uniform choice-of-law rule. In this paper, Professor Kramer challenges the assumptions at the foundation of that consensus. In so doing, he confronts two myths of late-twentieth century procedure: that the sort of procedural maneuvers used to circumvent unambiguous Supreme Court precedents precluding federal courts from creating choice-of-law rules are legitimate; and that the unusual nature of complex litigation justifies such measures. Professor Kramer exposes the fallacies underlying the first premise then presents historical and normative arguments against the second. He questions both the principle that the parties in complex litigation are similarly situated with respect to the applicable law and the notion that adjudicating such litigation under more than one law is unmanageable.