Governmental Interest Analysis

Rule / Approach

Developed by Brainerd Currie in the 1950s–60s, governmental interest analysis directs a court to examine the policies underlying each state’s competing laws and then determine whether each state has a legitimate interest in applying its law to the particular parties and facts. The forum applies its own law in true conflicts; if only one state has an interest, that state’s law governs; if neither state has an interest, the forum applies forum law (or plaintiff-favoring law).

Elements / Steps

1. Identify each state’s law and the policy or purpose behind it.
2. Determine each state’s interest: A state has an interest in applying its law when the class of persons its law was designed to protect is involved in the dispute (typically tied to domicile).
3. Classify the conflict:
   • False conflict: Only one state has an interest — apply that state’s law without further analysis.
   • Unprovided-for case: Neither state has an interest — Currie said apply forum law; courts often apply the law more favorable to the plaintiff or use most-significant-relationship as a tie-breaker.
   • True conflict: Both states have interests and their laws differ.
4. Resolve true conflicts:
   • Currie’s original position: apply forum law — courts are instruments of state policy and should advance their own state’s interests.
   • Moderate/restrained interpretation: reexamine whether the conflict is truly irreconcilable; try to interpret one state’s law narrowly to eliminate the conflict.
   • Other refinements: comparative impairment (Baxter/California); better-law approach (Leflar).

Exceptions / Critiques

• Forum bias: Currie’s rule of applying forum law in true conflicts invites forum shopping and systematically favors the plaintiff (who chose the forum).
• No ranking of interests: Governmental interest analysis does not weigh or compare the strength of state interests, only their existence — leading to comparative impairment as a refinement.
• Difficulty of statutory interpretation: Identifying a law’s “policy” requires speculative legislative-intent analysis.
• Unprovided-for cases create uncertainty — courts reach inconsistent results.
• True conflict escape: Currie’s “moderate and restrained interpretation” urges re-reading one state’s statute narrowly to transform a true conflict into a false one before resorting to forum law.

Policy

Governmental interest analysis replaced mechanical territoriality with a focus on the purposes behind laws. It treats choice of law as a form of statutory interpretation: just as domestic statutes should be applied only where the legislature intended, a state’s law should apply only where the state has a genuine interest. This approach ties choice of law to modern conflicts scholarship (legal realism, statutory purpose analysis) and the Legal Process school.

Key Cases

• Babcock v. Jackson — NY court identified Ontario’s guest statute as a loss-allocating rule with no Ontario interest in a dispute between NY domiciliaries; textbook false conflict.
• Lilienthal v. Kaufman — Oregon applied its own spendthrift law as a true conflict even though most connecting factors pointed to California.
• Erwin v. Thomas — classic unprovided-for case: neither state had an interest in the loss-allocation dispute.
• Milliken v. Pratt — Currie’s analysis of married-women’s contracts revealed most cases are false conflicts once domicile is examined.

Covered In

• Conflict of Laws