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Publication Date

2017

Abstract

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.

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