Article

Firearms, Extreme Risk, and Legal Design: “Red Flag” Laws and Due Process

Extreme risk protection order (“ERPO”) laws—often called “red flag” laws—permit the denial of firearms to individuals who a judge has determined present an imminent risk of harm to themselves or others. Following a wave of adoptions in the wake of the Parkland murders, such orders are now authorized by law in nineteen states and the District of Columbia and under consideration in many others. Advocates argue that they provide a tailored, individualized way to deter homicide, suicide, and even mass shootings by providing a tool for law enforcement or others to intervene when harm appears imminent, without having to wait for injury, lethality, or criminal actions to occur. But the laws have also garnered criticism and have become a primary target of the Second Amendment sanctuary movement.

As a matter of constitutional law, the most serious questions about ERPO laws involve not the right to keep and bear arms but due process. Such orders—like domestic violence restraining orders, to which they are often compared—can initially be issued ex parte, and critics often allege that this feature (and others including the burden of proof) raises constitutional problems.

This Article provides a comprehensive analysis of the applicable due process standards and identifies the primary issues of concern. It concludes that, despite some variation, current ERPOs generally satisfy the relevant standards. It also notes those features that are likely to give rise to the strongest challenges. The analysis both builds on and suggests lessons for other areas of regulation where laws are designed so as to lessen extreme risk.

Introduction

What process is due when people who pose an extreme risk of harm to themselves or others are temporarily deprived of a constitutional right? What design choices can legislators make to ensure that such deprivations provide constitutionally adequate protections?

Although such questions have arisen in many different contexts, including domestic violence restraining orders and civil commitments, they are now front and center for what is arguably the most important current development in firearms regulation: the spread of “extreme risk” or “red flag” laws that permit courts to order that firearms be temporarily removed from individuals who pose an imminent risk of harm to themselves or others. Advocates see these laws as an effective, targeted way to save lives while respecting the Second Amendment.1 1.See infra Section I.A.Show More Critics allege that they amount to “pre-crime” punishment and that they violate not only the right to keep and bear arms but also the due process guarantee.2 2.See infra note 159 and accompanying text (“pre-crime” comparison); infra notes 81–88 and accompanying text (Second Amendment critique); infra notes 29–30 (due process critique).Show More In fact, opposition to extreme risk laws has helped fuel the “Second Amendment sanctuary” movement, by which some local governments have pledged their refusal to enforce state and federal gun laws.3 3.Noah Shepardson, America’s Second Amendment Sanctuary Movement Is Alive and Well, Reason (Nov. 21, 2019, 4:00 PM), https://reason.com/2019/11/21/americas-second-amendment-sanctuary-movement-is-alive-and-well/ [https://perma.cc/XKV7-ADF4]; see also Scott Pelley, A Look at Red Flag Laws and the Battle Over One in Colorado, 60 Minutes, CBS News (Nov. 17, 2019), https://www.cbsnews.com/news/red-flag-gun-laws-a-standoff-in-colorado-60-minutes-2019-11-17/ [https://perma.cc/GF5D-BSH2] (examining Second Amendment sanctuaries in Colorado).Show More

Behind the political claims lies an enormously important and difficult set of questions regarding the ways in which the law can be constitutionally designed to account for risky-but-not-criminal behavior. Judges and scholars have long recognized that laws regulating on the basis of future risk raise a different and in many ways harder set of questions than those that, for example, punish prior behavior.4 4.Both categories, of course, may well be based on prior behavior—in the former set, that behavior is evidence of future risk; in the latter, it is the basis for retribution or some other governmental interest.Show More On the one hand, the law often restricts behavior on the basis of predictions. Even basic cost-benefit analysis—which is foundational to the regulatory state5 5.See Richard L. Revesz & Michael A. Livermore, Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health9–10 (2008) (noting that the use of cost-benefit analysis has been a contentious issue in regulatory policy making for decades); Cass R. Sunstein, The Cost-Benefit Revolution3–4, 6–7 (2018) (describing how successive Presidents since Ronald Reagan have required that regulations promulgated during their administrations be justified on a cost-benefit basis).Show More—is largely forward-looking. Regulation of risk, in short, is nothing new.6 6.Nor, for that matter, is the notion that regulation often involves trading off one risk against another: denying a firearm to a particular person might lower the risk that he will misuse it, while raising the risk that he will be unable to defend himself in a time of need. For an influential analysis of the tradeoff question, seeRisk Versus Risk: Tradeoffs in Protecting Health and the Environment 3­–5 (John D. Graham & Jonathan Baert Wiener eds., 1995).Show More

But when such regulation intersects with constitutional rights and interests in the absence of a criminal conviction or its equivalent, harder questions arise about the necessary procedures and evidentiary burdens. Intuitively, restraining a person who has harmed others is different from restraining someone who is only at risk of doing so. There is no bright line: civil commitments, restraining orders, and the like all impose significant restraints in an effort to prevent future harms and are not categorically unconstitutional. Scholars have explored those related contexts7 7.For a sampling of the literature regarding involuntary commitments for mental illness, seeDavid L. Bazelon, Institutionalization, Deinstitutionalization and the Adversary Process, 75 Colum. L. Rev. 897, 899–900 (1975) (asking “[i]s confinement on the basis of ‘dangerousness’ alone constitutional?” and providing a skeptical answer); Veronica J. Manahan, When Our System of Involuntary Civil Commitment Fails Individuals with Mental Illness: Russell Weston and the Case for Effective Monitoring and Medication Delivery Mechanisms, 28 Law & Psych. Rev. 1, 32 (2004) (“Civil liberty concerns, as evidenced by the extensive due process protections afforded to those facing involuntary commitment, and the state’s interest in protecting all of its citizens, are fundamentally at odds.”); Alexander Tsesis, Due Process in Civil Commitments, 68 Wash. & Lee L. Rev. 253, 300–01 (2011) (arguing that civil commitment should require a beyond-a-reasonable-doubt standard of proof).Scholars have also explored due process protections as they apply to domestic violence restraining orders (“DVROs”) and similar legal restrictions. See, e.g., Shawn E. Fields, Debunking the Stranger-in-the-Bushes Myth: The Case for Sexual Assault Protection Orders, 2017 Wis. L. Rev. 429, 484 (arguing that sexual assault protection orders—which are different from DVROs—“should employ the lower preponderance-of-the-evidence standard to ensure that victims have an effective mechanism to seek prospective relief and governments have an effective tool in combating the sexual assault epidemic” and stating “[h]owever, procedural due process may require a more nuanced approach with respect to the types of evidentiary showings necessary to meet this standard and with the types of prospective relief available to petitioners”).Show More but have only recently devoted attention to these questions in the context of extreme risk laws,8 8.Timothy Zick, The Constitutional Case for “Red Flag” Laws, Jurist (Dec. 6, 2019, 8:39 PM), https://www.jurist.org/commentary/2019/12/timothy-zick-red-flag-laws/ [https://perm a.cc/G3TS-L53G]. Other scholars have looked at the due process implications of other types of similar statutory mechanisms, like DVROs with specific firearm prohibitions, Aaron Edward Brown, This Time I’ll Be Bulletproof: Using Ex Parte Firearm Prohibitions to Combat Intimate-Partner Violence, 50 Colum. Hum. Rts. L. Rev. 159, 196–98 (2019) (arguing that domestic violence ex parteorders for protection that prohibit firearm possession can survive due process challenges), or laws designed to disarm those in the throes of severe mental health crises, Fredrick E. Vars, Symptom-Based Gun Control, 46 Conn. L. Rev. 1633, 1646–47 (2014) (arguing that a law allowing temporary firearm removal from individuals suffering delusions or hallucinations would not violate due process). None, so far, has assessed the new spate of extreme risk laws passed predominantly in the last two years.Show More and this Article is the first to provide an in-depth examination of the due process issues they raise. (These are often called “red flag” laws, though that label might convey a stigma, so we will use the increasingly common “extreme risk” label.9 9.See Red Flag Laws: Examining Guidelines for State Action: Hearing Before the S. Comm. on the Judiciary, 116th Cong. (2019) (statement of Ronald Honberg, Senior Policy Advisor, National Alliance on Mental Illness) (describing the risk that “red flag” language can stigmatize individuals with mental illness).Show More)

In the past two years alone, a dozen states have adopted or expanded such laws. Although the details vary, their form is similar: law enforcement officers or sometimes family members or other professionals can petition a court for an extreme risk protection order (“ERPO”)10 10.In California, the order is known as a “gun violence restraining order” or “GVRO.” Cal. Penal Code § 18100 (Deering Supp. 2020).Show More that would require a person to surrender his or her firearms and refrain from acquiring new ones. After receiving the petition, the court can enter a short-term, ex parte ERPO if the petitioner carries his or her burden of proof (which can range from showing “good cause” to “clear and convincing” evidence11 11.See infra notes 302–09 and accompanying text; see also infra Section II.B (discussing constitutional principles for establishing burden of proof and how they should apply in the ERPO context).Show More). After a full, adversary hearing—at which petitioner again bears the burden of proof—the court can enter a lengthier, but still temporary, ERPO.12 12.See infranote 309 and accompanying text.Show More

Politically and empirically, it is easy to see why such laws are increasingly popular. They provide tailored, individualized risk assessments, rather than regulating people’s access to firearms based on their membership in broad classes like felons or the mentally ill.13 13.See infraSubsection I.B.1.Show MoreAnd although scholars are just beginning to evaluate the effectiveness of these new laws, early studies have shown encouraging results.14 14.See infra notes 70–82 and accompanying text. That extreme risk laws might be effective does not make them a panacea, nor should they distract from other forms of effective gun regulation. SeeJoseph Pomianowski & Ling Liang Dong, Red Flag Laws Are Red Herrings of Gun Control, Wired (Sept. 9, 2019, 9:00 AM), https://www.wired.com/story/red-flag-laws-are-red-herrings-of-gun-control/ [https://perma.cc/PSN8-B2UK].Show More This all points to ERPOs being an increasingly important part of the debate about gun rights and regulation going forward.

Of course, there are critics. Some argue that extreme risk laws violate the right to keep and bear arms.15 15.Ivan Pereira, Lawmaker Introduces ‘Anti-Red Flag’ Bill in Georgia To Combat Gun Control Proposals, ABC News (Jan. 15, 2020, 12:52 PM), https://abcnews.go.com/­US/lawmaker-introduces-anti-red-flag-bill-georgia-combat/story?id=68299434 [https://perm a.cc/7V9S-7CMX] (describing legislation introduced in Georgia to forbid extreme risk laws that bears the title “Anti-Red Flag—Second Amendment Conservation Act”).Show More These critics challenge the very notion of a law that allows disarming individuals who have not committed any crime. District of Columbia v. Heller, after all, said the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”16 16.554 U.S. 570, 635 (2008) (emphasis added).Show More

The focus on the right to keep and bear arms is unsurprising, given the magnetic pull of the Second Amendment in nearly any political or legal discussion of gun regulation; the tendency is often to evaluate any proposed rule related to firearms for its conformity with that right in particular.17 17.See generally Joseph Blocher, Gun Rights Talk, 94 B.U. L. Rev. 813 (2014) (arguing that the invocation of the Second Amendment in debates over proposed gun control laws has defeated many of these measures).Show More But a myopic focus on the Second Amendment unnecessarily flattens the gun debate and minimizes different—and often stronger—constitutional claims.18 18.A federal court in California, for example, blocked on First Amendment grounds a Los Angeles law that would have required city contractors to disclose ties to the NRA. As the NRA put it, the “First Amendment Defends the Second.” See First Amendment Defends the Second, NRA-ILA (Dec. 16, 2019), https://www.nraila.org/articles/20191216/first-amendment-defends-the-second [https://perma.cc/L5TF-6PVS].Show More More generally, it demonstrates the importance of firearms law and scholarship which consider how gun rights intersect with other constitutional rights, including those emanating from the First,19 19.See, e.g., Timothy Zick, Arming Public Protests, 104 Iowa L. Rev. 223, 236–37 (2018) (considering, interalia, the First Amendment rights of speech and assembly and their interaction with the Second Amendment); Luke Morgan, Note, Leave Your Guns at Home: The Constitutionality of a Prohibition on Carrying Firearms at Political Demonstrations, 68 Duke L.J. 175, 179, 211–13 (2018) (same).Show More Fourth,20 20.See, e.g., Jeffrey Bellin, The Right To Remain Armed, 93 Wash. U. L. Rev. 1, 4–5 (2015) (considering implications for search and seizure).Show More and Fourteenth21 21.See, e.g., Pratheepan Gulasekaram, “The People” of the Second Amendment: Citizenship and the Right to Bear Arms, 85 N.Y.U. L. Rev. 1521, 1538 (2010) (illustrating and analyzing the difficulties of limiting “the people” to non-citizens).Show More Amendments.22 22.Not only do these other rights and interests intersect with the Second Amendment in important ways, but the courts have also borrowed from many of these frameworks when fleshing out the contours of the right to keep and bear arms. SeeJacob D. Charles, Constructing a Constitutional Right: Borrowing and Second Amendment Design Choices, 99 N.C. L. Rev. (forthcoming 2021) (manuscript at 1–2) (on file with the Virginia Law Review) (describing how courts and commentators have borrowed from other constitutional rights domains in creating a framework for the Second Amendment).Show More

In this increasingly rich and diverse area of constitutional law, scholarship, and rhetoric, due process has a particularly notable role to play. Consider the debate over “No Fly No Buy,” which would have forbidden gun purchases by those on the federal terror watch list. The proposal had broad23 23.See, e.g., Press Release, Quinnipiac Univ., Overwhelming Support for No-Fly, No-Buy Gun Law, Quinnipiac University National Poll Finds; Support for Background Checks Tops 90 Percent Again (June 30, 2016), https://poll.qu.edu/national/release-detail?ReleaseID=2364 [https://perma.cc/C74J-XGWG].Show More and bipartisan24 24.David M. Herszenhorn, Bipartisan Senate Group Proposes ‘No Fly, No Buy’ Gun Measure, N.Y. Times (June 21, 2016), https://www.nytimes.com/2016/06/22/us/politics/ senate-gun-control-no-fly-list-terrorism.html [https://perma.cc/4J99-TKVT].Show More political support. Some critics predictably argued that it violated the Second Amendment,25 25.See, e.g., Chris W. Cox, Gun Laws Don’t Deter Terrorists: Opposing View, USA Today (June 14, 2016, 1:01 AM), https://www.usatoday.com/story/opinion/2016/06/13/gun-laws-deter-terrorists-opposing-view/85844946/ [https://perma.cc/Q6S7-9C52].Show More but as a matter of doctrine the more serious objections had to do with due process.26 26.See Hina Shamsi & Christopher Anders, The Use of Error-Prone and Unfair Watchlists Is Not the Way To Regulate Guns in America, ACLU (June 20, 2016, 2:45 PM), https://www.aclu.org/blog/washington-markup/use-error-prone-and-unfair-watchlists-not-way-regulate-guns-america [https://perma.cc/YA9S-NYBS]; see also Joseph Greenlee, No Fly, No Buy (And No Due Process), Federalist Soc’y (Feb. 17, 2016), http://www.fed-soc.org/blog/detail/no-fly-no-buy-and-no-due-process [https://perma.cc/V4U6-7ERV].Show More Partly as a result, the proposal ultimately died in the Senate.27 27.Lisa Mascaro & Jill Ornitz, Senate Rejects New Gun Sales Restrictions, L.A. Times, June 21, 2016, at A8.Show More

A similar dynamic seems to be at work with ERPOs, except that the consequences are far more important, since such laws have been widely adopted.28 28.See infra Section I.A (describing the spread of extreme risk laws).Show More Although the Second Amendment continues to draw much of the attention, the more substantive and pressing concern is whether ERPOs violate gun owners’ due process rights. When the Senate held a hearing in 2019 about possibly providing federal incentives for state extreme risk laws, due process concerns were front and center.29 29.Marianne Levine, Senate GOP Open to States Allowing Narrow Gun Restriction, Politico (Mar. 26, 2019, 1:05 PM), https://www.politico.com/story/2019/03/26/senate-republicans-state-gun-law-reform-1237446 [https://perma.cc/F32F-F6EQ].Show More Indeed, in some areas of the states that have adopted extreme risk laws, local officials have vowed not to implement them. One Colorado sheriff put the critique bluntly: “This is the only bill I know of that allows law enforcement officers to take somebody’s property without due process.”30 30.Governor Polis Signs ERPO Into Law, Delta Cnty. Indep. (Apr. 17, 2019), https://www.deltacountyindependent.com/governor-polis-signs-erpo-into-law-cms-15033 [https://perma.cc/S2N7-NW6M].Show More

But, of course, that assumes the answer to the central question: do extreme risk laws provide due process? If so, then “due process” objections should be recognized for what they are: political rhetoric, rather than doctrinal claims.31 31.To be clear, we do not suppose that there is a bright line between “constitutional” and “political” claims—constitutional law and argument often occur outside the courts, and in fact the Second Amendment provides an especially robust and interesting example in that regard. SeeJacob D. Charles, The Right To Keep and Bear Arms Outside the Second Amendment 7 (Feb. 23, 2020) (unpublished manuscript) (on file with the Virginia Law Review).Show More If not, then no amount of political or empirical support will suffice, and this promising new avenue of gun regulation will be shut down by the courts.

This Article examines that question. Part I explains the spread and substance of current extreme risk laws. The wave of new extreme risk laws has encountered opposition from those who claim, often with little attention to the details of the different statutory regimes and the variety among them, that they violate due process. Part II lays out the relevant requirements of due process and applies that framework to the extreme risk context. Such an analysis can, we hope, be useful to lawmakers, litigants, judges, and scholars interested in designing or evaluating the constitutionality of extreme risk laws. Although we do not undertake an exhaustive or individualized assessment of various state laws, we conclude that the basic structure of existing extreme risk laws satisfies the requirements of due process.

The point of the analysis, however, is not to provide a blanket constitutional defense of extreme risk laws. The goal instead is to identify and explore an engaging set of constitutional issues raised by a new wave of firearm regulations. Those issues, in turn, are relevant to our understanding of how the Constitution intersects with risk regulation, and what options society has to protect itself from potential harms.

  1. * Lanty L. Smith ’67 Professor of Law, Duke University School of Law. ↑
  2. ** Lecturing Fellow & Executive Director, Center for Firearms Law, Duke University School of Law.Many thanks to Saul Cornell, Dave Kopel, Anne Levinson, Darrell Miller, Kelly Roskam, Eric Ruben, Jeff Swanson, Fredrick Vars, Julia Weber, Shawn Fields, and Tim Zick for invaluable comments and feedback, as well as to the participants at the University of Alabama School of Law symposium, “Seeing Red: Risk-Based Gun Regulation.” ↑
  3. See infra Section I.A. ↑
  4. See infra note 159 and accompanying text (“pre-crime” comparison); infra notes 81–88 and accompanying text (Second Amendment critique); infra notes 29–30 (due process critique). ↑
  5. Noah Shepardson, America’s Second Amendment Sanctuary Movement Is Alive and Well, Reason (Nov. 21, 2019, 4:00 PM), https://reason.com/2019/11/21/americas-
    second-amendment-sanctuary-movement-is-alive-and-well/ [https://perma.cc/XKV7-ADF4]; see also Scott Pelley, A Look at Red Flag Laws and the Battle Over One in Colorado, 60 Minutes, CBS News (Nov. 17, 2019), https://www.cbsnews.com/news/red-flag-gun-laws-a-standoff-in-colorado-60-minutes-2019-11-17/ [https://perma.cc/GF5D-BSH2] (examining Second Amendment sanctuaries in Colorado). ↑
  6. Both categories, of course, may well be based on prior behavior—in the former set, that behavior is evidence of future risk; in the latter, it is the basis for retribution or some other governmental interest. ↑
  7. See Richard L. Revesz & Michael A. Livermore, Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health
    9

    –

    10

    (2008) (noting that the use of cost-benefit analysis has been a contentious issue in regulatory policy making for decades); Cass R. Sunstein, The Cost-Benefit Revolution

    3

    –

    4, 6–7

    (2018) (describing how successive Presidents since Ronald Reagan have required that regulations promulgated during their administrations be justified on a cost-benefit basis). ↑

  8. Nor, for that matter, is the notion that regulation often involves trading off one risk against another: denying a firearm to a particular person might lower the risk that he will misuse it, while raising the risk that he will be unable to defend himself in a time of need. For an influential analysis of the tradeoff question, see Risk Versus Risk: Tradeoffs in Protecting Health and the Environment 3­–5 (John D. Graham & Jonathan Baert Wiener eds., 1995). ↑
  9. For a sampling of the literature regarding involuntary commitments for mental illness, see David L. Bazelon, Institutionalization, Deinstitutionalization and the Adversary Process, 75 Colum. L. Rev
    .

    897, 899–900 (1975) (asking “[i]s confinement on the basis of ‘dangerousness’ alone constitutional?” and providing a skeptical answer); Veronica J. Manahan, When Our System of Involuntary Civil Commitment Fails Individuals with Mental Illness: Russell Weston and the Case for Effective Monitoring and Medication Delivery Mechanisms, 28 Law & Psych. Rev

    .

    1, 32 (2004) (“Civil liberty concerns, as evidenced by the extensive due process protections afforded to those facing involuntary commitment, and the state’s interest in protecting all of its citizens, are fundamentally at odds.”); Alexander Tsesis, Due Process in Civil Commitments, 68 Wash. & Lee L. Rev

    .

    253, 300–01 (2011) (arguing that civil commitment should require a beyond-a-reasonable-doubt standard of proof).

    Scholars have also explored due process protections as they apply to domestic violence restraining orders (“DVROs”) and similar legal restrictions. See, e.g., Shawn E. Fields, Debunking the Stranger-in-the-Bushes Myth: The Case for Sexual Assault Protection Orders, 2017 Wis. L. Rev. 429, 484 (arguing that sexual assault protection orders—which are different from DVROs—“should employ the lower preponderance-of-the-evidence standard to ensure that victims have an effective mechanism to seek prospective relief and governments have an effective tool in combating the sexual assault epidemic” and stating “[h]owever, procedural due process may require a more nuanced approach with respect to the types of evidentiary showings necessary to meet this standard and with the types of prospective relief available to petitioners”). ↑

  10. Timothy Zick, The Constitutional Case for “Red Flag” Laws, Jurist (Dec. 6, 2019, 8:39 PM), https://www.jurist.org/commentary/2019/12/timothy-zick-red-flag-laws/ [https://perm a.cc/G3TS-L53G]. Other scholars have looked at the due process implications of other types of similar statutory mechanisms, like DVROs with specific firearm prohibitions, Aaron Edward Brown, This Time I’ll Be Bulletproof: Using Ex Parte Firearm Prohibitions to Combat Intimate-Partner Violence, 50 Colum. Hum. Rts. L. Rev. 159, 196–98 (2019) (arguing that domestic violence ex parte orders for protection that prohibit firearm possession can survive due process challenges), or laws designed to disarm those in the throes of severe mental health crises, Fredrick E. Vars, Symptom-Based Gun Control, 46 Conn. L. Rev
    .

    1633, 1646–47 (2014) (arguing that a law allowing temporary firearm removal from individuals suffering delusions or hallucinations would not violate due process). None, so far, has assessed the new spate of extreme risk laws passed predominantly in the last two years. ↑

  11. See Red Flag Laws: Examining Guidelines for State Action: Hearing Before the S. Comm. on the Judiciary, 116th Cong. (2019) (statement of Ronald Honberg, Senior Policy Advisor, National Alliance on Mental Illness) (describing the risk that “red flag” language can stigmatize individuals with mental illness). ↑
  12. In California, the order is known as a “gun violence restraining order” or “GVRO.” Cal. Penal Code § 18100 (Deering Supp. 2020). ↑
  13. See infra notes 302–09 and accompanying text; see also infra Section II.B (discussing constitutional principles for establishing burden of proof and how they should apply in the ERPO context). ↑
  14. See infra note 309 and accompanying text. ↑
  15. See infra Subsection I.B.1. ↑
  16. See infra notes 70–82 and accompanying text. That extreme risk laws might be effective does not make them a panacea, nor should they distract from other forms of effective gun regulation. See Joseph Pomianowski & Ling Liang Dong, Red Flag Laws Are Red Herrings of Gun Control, Wired (Sept. 9, 2019, 9:00 AM), https://www.wired.com/story/red-flag-laws-are-red-herrings-of-gun-control/ [https://perma.cc/PSN8-B2UK]. ↑
  17. Ivan Pereira, Lawmaker Introduces ‘Anti-Red Flag’ Bill in Georgia To Combat Gun Control Proposals, ABC News (Jan. 15, 2020, 12:52 PM), https://abcnews.go.com/­US/lawmaker-introduces-anti-red-flag-bill-georgia-combat/story?id=68299434 [https://perm a.cc/7V9S-7CMX] (describing legislation introduced in Georgia to forbid extreme risk laws that bears the title “Anti-Red Flag—Second Amendment Conservation Act”). ↑
  18. 554 U.S. 570, 635 (2008) (emphasis added). ↑
  19. See generally Joseph Blocher, Gun Rights Talk, 94 B.U. L. Rev. 813 (2014) (arguing that the invocation of the Second Amendment in debates over proposed gun control laws has defeated many of these measures). ↑
  20. A federal court in California, for example, blocked on First Amendment grounds a Los Angeles law that would have required city contractors to disclose ties to the NRA. As the NRA put it, the “First Amendment Defends the Second.” See First Amendment Defends the Second, NRA-ILA (Dec. 16, 2019), https://www.nraila.org/articles/20191216/first-amendment-defends-the-second [https://perma.cc/L5TF-6PVS]. ↑
  21. See, e.g., Timothy Zick, Arming Public Protests, 104 Iowa L. Rev. 223, 236–37 (2018) (considering, inter alia, the First Amendment rights of speech and assembly and their interaction with the Second Amendment); Luke Morgan, Note, Leave Your Guns at Home: The Constitutionality of a Prohibition on Carrying Firearms at Political Demonstrations, 68 Duke L.J
    .

    175, 179, 211–13 (2018) (same). ↑

  22. See, e.g., Jeffrey Bellin, The Right To Remain Armed, 93 Wash. U. L. Rev
    .

    1, 4–5 (2015) (considering implications for search and seizure). ↑

  23. See, e.g., Pratheepan Gulasekaram, “The People” of the Second Amendment: Citizenship and the Right to Bear Arms, 85 N.Y.U. L. Rev
    .

    1521, 1538 (2010) (illustrating and analyzing the difficulties of limiting “the people” to non-citizens). ↑

  24. Not only do these other rights and interests intersect with the Second Amendment in important ways, but the courts have also borrowed from many of these frameworks when fleshing out the contours of the right to keep and bear arms. See Jacob D. Charles, Constructing a Constitutional Right: Borrowing and Second Amendment Design Choices, 99 N.C. L. Rev. (forthcoming 2021) (manuscript at 1–2) (on file with the Virginia Law Review) (describing how courts and commentators have borrowed from other constitutional rights domains in creating a framework for the Second Amendment). ↑
  25. See, e.g., Press Release, Quinnipiac Univ., Overwhelming Support for No-Fly, No-Buy Gun Law, Quinnipiac University National Poll Finds; Support for Background Checks Tops 90 Percent Again (June 30, 2016), https://poll.qu.edu/national/release-detail?ReleaseID=2364 [https://perma.cc/C74J-XGWG]. ↑
  26. David M. Herszenhorn, Bipartisan Senate Group Proposes ‘No Fly, No Buy’ Gun Measure, N.Y. Times (June 21, 2016), https://www.nytimes.com/2016/06/22/us/politics/ senate-gun-control-no-fly-list-terrorism.html [https://perma.cc/4J99-TKVT]. ↑
  27. See, e.g., Chris W. Cox, Gun Laws Don’t Deter Terrorists: Opposing View, USA Today (June 14, 2016, 1:01 AM), https://www.usatoday.com/story/opinion/2016/06/13/gun-laws-deter-terrorists-opposing-view/85844946/ [https://perma.cc/Q6S7-9C52]. ↑
  28. See Hina Shamsi & Christopher Anders, The Use of Error-Prone and Unfair Watchlists Is Not the Way To Regulate Guns in America, ACLU (June 20, 2016, 2:45 PM), https://www.aclu.org/blog/washington-markup/use-error-prone-and-unfair-watchlists-not-way-regulate-guns-america [https://perma.cc/YA9S-NYBS]; see also Joseph Greenlee, No Fly, No Buy (And No Due Process), Federalist Soc’y (Feb. 17, 2016), http://www.fed-soc.org/blog/detail/no-fly-no-buy-and-no-due-process [https://perma.cc/V4U6-7ERV]. ↑
  29. Lisa Mascaro & Jill Ornitz, Senate Rejects New Gun Sales Restrictions, L.A. Times
    ,

    June 21, 2016, at A8. ↑

  30. See infra Section I.A (describing the spread of extreme risk laws). ↑
  31. Marianne Levine, Senate GOP Open to States Allowing Narrow Gun Restriction, Politico (Mar. 26, 2019, 1:05 PM), https://www.politico.com/story/2019/03/26/senate-republicans-state-gun-law-reform-1237446 [https://perma.cc/F32F-F6EQ]. ↑
  32. Governor Polis Signs ERPO Into Law, Delta Cnty. Indep. (Apr. 17, 2019), https://www.deltacountyindependent.com/governor-polis-signs-erpo-into-law-cms-15033 [https://perma.cc/S2N7-NW6M]. ↑
  33. To be clear, we do not suppose that there is a bright line between “constitutional” and “political” claims—constitutional law and argument often occur outside the courts, and in fact the Second Amendment provides an especially robust and interesting example in that regard. See Jacob D. Charles, The Right To Keep and Bear Arms Outside the Second Amendment 7 (Feb. 23, 2020) (unpublished manuscript) (on file with the Virginia Law Review). ↑

Weaponizing the First Amendment: An Equality Reading

This Article traces how and why the First Amendment has gone from a shield of the powerless to a sword of the powerful in the past hundred years. The central doctrinal role of “content neutrality” and “viewpoint neutrality” in this development is analyzed; the crucial tipping points of anti-Semitism, in Collin v. Smith, and pornography, in Hudnut v. American Booksellers, are identified. The potential for substantive equality to promote freedom of speech is glimpsed.

Once a defense of the powerless, the First Amendment1 1.U.S. Const. amend. I.Show More over the last hundred years has mainly become a weapon of the powerful. Starting toward the beginning of the twentieth century, a protection that was once persuasively conceived by dissenters as a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers, and corporations buying elections in the dark.2 2.All the examples in this sentence are discussed in this Article except the last, which is exemplified by Citizens United v. FEC, 558 U.S. 310 (2010), and preceding cases, discussion of which is beyond the scope of this Article.Show More In public discourse, with which these legal developments are tightly connected, freedom of speech has at the same time gone from a rallying cry for protesters against dominant power to a claimed immunity of those who hold dominant power. Thus weaponized,3 3.Justice Elena Kagan spoke of “weaponizing” the First Amendment in a dissenting opinion contending that fees assessed by statute by public employee unions on all who benefitted from their collective bargaining should have been permitted rather than invalidated under the First Amendment: “There is no sugarcoating today’s opinion. The majority . . . prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2501 (2018) (Kagan, J., dissenting). Although the power alignments in her recognition parallel those argued here, I am not claiming that Justice Kagan agrees with the analysis in this Article.Show More the First Amendment has morphed from a vaunted entitlement of structurally unequal groups to have their say, to expose their inequality, and to seek equal rights, to a claim by dominant groups to impose and exploit their hegemony.

On the social level of the speech itself, dominant groups promoting ideologies of supremacy have solidified and enhanced their power through inaccurately but successfully positioning themselves as marginal powerless dissenters, or as debaters just expressing ideas. As much public speech has accordingly escalated in its abusiveness, markedly on social media, from racist dog whistles and worse through sexual objectification and worse, to some electoral and other political assaults and invitations to violence, a First Amendment appeal is often used to support dominant status and power, backing white supremacy and masculinist misogynistic attacks in particular. Voices challenging inequality on campuses and in media as well as on streets, in communities, in social media, and in courts are frequently effectively muted and exposed to further abuse and silenced through subordinating aggression, including verbal, physical, and legal threats, in the name of freedom of speech. And everyone wonders, how did we get here?

In law, the doctrinal pivot of this twisted development turns on a vicious irony. The very First Amendment doctrine that has supported intensifying hierarchies of power in its results is founded in a purported equality principle. Starting in the 1970s, the First Amendment began to build a doctrine of content neutrality, extended (where applicable) to viewpoint neutrality, said to be predicated on equality.4 4.As traced in detail below, this trajectory went from Schacht v. United States, 398 U.S. 58 (1970), to Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), to Kenneth L. Karst, Equality as a Central Principle in the First Amendment, 43 U. Chi. L. Rev. 20 (1975), as recounted in Geoffrey R. Stone, Kenneth Karst’sEquality as a Central Principle in the First Amendment, 75 U. Chi. L. Rev. 37 (2008). None identifies the “equality” being applied as formal equality, which it is.Show More Neutrality has become its principal tool, overwhelming even its few substantive recognitions. Content neutrality, like gender neutrality or racial neutrality (often termed colorblindness) under the Equal Protection Clause,5 5.U.S. Const.amend. XIV, § 1. For discussion, see Catharine A. MacKinnon, Feminism Unmodified 33–37, 55, 71–74, 164–67, 275 n.6 (1987), and Catharine A. MacKinnon, Sex Equality (3d ed. 2016).Show More is rooted in the abstract Aristotelian notion of formal equality, which can distinguish sameness from difference within a prescribed range, but lacks substantive comprehension or direction. Absent the injection of substance—considered non-neutral, hence non-principled and prohibited by this doctrine—this doctrine has proven to be an instrument of reproduction of the status quo, incapable of reliably distinguishing social dominance from subordination, thus maintaining that dominance. That is, it is incapable of seeing hierarchy, markedly the rank ordering of white over not white, of male and masculine over female and feminine, that (among many other inequalities) defines inequality in reality.6 6.See, e.g., Catharine A. MacKinnon, Substantive Equality: A Perspective, 96 Minn. L. Rev. 1, 27 (2011); Catharine A. MacKinnon, Substantive Equality Past and Future: The Canadian Charter Experience, in Canada in the World: Comparative Perspectives on the Canadian Constitution 227, 227–44 (Richard Albert & David R. Cameron eds., 2018) [hereinafter MacKinnon, Substantive Equality Past and Future]; Catharine A. MacKinnon, Substantive Equality Revisited: A Reply to Sandra Fredman, 14 Int’l J. Const. L. 739 (2016); Catharine A. MacKinnon, Substantive Equality Revisited: A Rejoinder to Sandra Fredman, 15 Int’l J. Const. L. 1174 (2017).Show More So this law has proven unable to support opposition to the way things are, or to counter and change it.

An inadequate approach to power, resulting in an incapacity to identify substantive inequality when it animates First Amendment cases—including a failure to identify inequality in these cases at all—is a major part of the underlying story of the First Amendment’s transformation. Being unable to tell the difference between power and powerlessness relatively speaking—for instance, being unable to identify the deployment of racial and/or gender-based terrorism through historically unambiguous means, that is, a determined blindness to social reality—has become firmly entrenched in the First Amendment, and the social discourse invoking it, as the virtue termed “neutrality.” Inevitably, existing unequal social arrangements, namely structures and practices of inequality, sometimes in aggressive forms, are thereby protected.

The First Amendment, firmly ensconced within the liberal tradition, tends reflexively to see power as residing in the state, which it sees as power’s fountainhead.7 7.This ground zero assumption is so fundamental it is virtually impossible to find articulated explicitly because it operates as unconscious ideology. It is most visible in the choice, when discussing power, only to argue for the legitimacy of state power, that is, the principal power seen to exist, as well as in the relative absence of analysis, for example, of male power (Locke analyzes it in the family only to justify it) or white privilege. See, e.g., John Rawls, Political Liberalism 136 (1996) (“[P]olitical power is always coercive power backed by the government’s use of sanctions, for government alone has the authority to use force in upholding its laws.”); Robert Nozick, Anarchy, State, and Utopia 23 (1974) (“A state claims a monopoly on deciding who may use force when; it says that only it may decide who may use force and under what conditions; it reserves to itself the sole right to pass on the legitimacy and permissibility of any use of force within its boundaries[.]”); Ronald Dworkin, Law’s Empire 188, 190–92 (1986). Given how much violence against women occurs that is no less effectively coercive for being extra-legal, this is all mythic.Show More In liberalism, power, rendered “coercive power,” is seen as emanating nearly exclusively from government; society, absent intrusion by the state, is deemed free. Freedom—here, freedom of speech—thus becomes about protecting existing social arrangements, which includes inequalities of power in society, from the state. This includes protecting inequality when the state supports intervention to address that inequality by means of, for example, civil laws against discrimination that include an expressive element.8 8.This is not always the case. For examples of a lesser but nonetheless existing line of authority, see Part II’s discussion of Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973), and Roberts v. United States Jaycees, 468 U.S. 609 (1984).Show More As a result, statutes that aim (for example) to protect socially disempowered and discriminated-against social groups from inequality imposed through speech or expressive conduct, violent or otherwise, because they are statutes, are seen to turn those harmed by such conduct into actors with power, as if they are the state. The statutes are legally mispositioned this way instead of recognizing them as attempted legal interventions on behalf of subordinated social groups, passed in an attempt to shift or mitigate their relative powerlessness, or to shield them from its violent excesses. Social relations are overwhelmingly not grasped as a locus or source or wellspring of power, hence of its inequality. The blinkering or overtly prohibiting of any explicit statutory recognition of grounds of substantive equality such as race or sex—First Amendment rulings considering their realities instead to be “discussions of” those “topics” or “ideas about” those realities9 9.See infra text accompanying notes 91–104 (focusing on R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)); infra text accompanying notes 158–62 (focusing on Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d mem.,475 U.S. 1001 (1986)).Show More—implements this assumption.10 10.Infra Part II discusses this, focusing on R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).Show More

The absence of an operative substantive theory of social equality is thus—in the guise of equality, no less—embedded in the First Amendment’s content neutrality. Few if any of its outcomes are neutral as to content, however, and its doctrine of viewpoint neutrality misses the many times dominant viewpoints are obscured while being protected. The upshot is that this doctrine, systematically implemented, protects “speech” that promotes substantive social inequality as it currently exists.11 11.See infra Part II.Show More Claiming freedom of speech, practices of inequality are converted into expressions of ideas about inequality, transforming actionable discrimination into protectable “speech.”

Opposition to discriminatory practices becomes censorship of thoughts or ideas on one side of a discussion. In this light, because discrimination, including through expressive acts of the powerful and advantaged, silences the speech of disadvantaged and subordinated groups as well as promotes their disadvantage and actualizes their subordination, neutrality as a doctrinal approach supports the status quo distribution of social power under the First Amendment just as effectively as it largely does under the Equal Protection Clause, where neutrality became the mainstream doctrine during roughly the same time period.12 12.As discussed in infra Part III, watershed public debates and judicial decisions in this respect revolved around two Seventh Circuit cases on which certiorari was denied concerning, substantively, anti-Semitism and commercialized misogyny: a permitting restriction applied to Nazis marching in Skokie, Illinois, see Collin v. Smith, 578 F.2d 1197, 1199 (7th Cir. 1978), cert. denied, 439 U.S. 916 (1978), and a civil statute recognizing harms of pornography as sex discrimination,see Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d mem.,475 U.S. 1001 (1986).Show More

If substantive inequality is all but invisible in the text of First Amendment doctrine and commentary, it is vividly visible in the facts of many, even most, First Amendment cases, if read through a substantive inequality lens. In early First Amendment cases, asymmetrical harms of what amounts to inequalities, if not so called, were clearly recognized. Passing without notice or comment, over time the underlying alignments of power, seen in substantive terms, have been reversed. Originally, the statutes suppressing speech sided with state power; those they silenced were its critics. Increasingly, the statutes subjected to First Amendment attack have sided with the powerless and have been attacked by those with power, claiming to be powerless dissenters. Power’s victims were those the statutes aimed to protect or those whose victimization the statutes aimed to remedy. But the statutes have been legally invalidated as First Amendment violations either as applied or on their face by representatives of social dominance, claiming the mantle of the powerless and dispossessed.

  1. * The insightful assistance of Lori Watson and Lisa Cardyn, of Max Waltman (especially in helping to wrestle the vast empirical materials on the harms of pornography below the line), and of Lori Interlicchio for her tremendous help with footnote form and accuracy, is gratefully acknowledged. The essential University of Michigan Law Library and the Cook Fund supported my work beyond measure, always being there. Deliveries of the core ideas at the First Amendment conference at Columbia University sponsored by Vince Blasi in November, 2019, and at The McCorkle Lecture at the University of Virginia, February 6, 2020, produced clarifying discussions. A preliminary sketch appears in The Free Speech Century 140 (Lee Bollinger & Geoffrey Stone eds., 2019). Lee and Geoff practice freedom of expression, contrasting with goose-steppers to First Amendment fundamentalism. Overcoming the best efforts of the latter, this Article is finally being published in full. The Virginia Law Review has my gratitude for courage, principle, and independent thinking, as well as for precision, persistence, and undaunted hard work at a time of challenge. This Article is dedicated to the memory of my teacher and dear friend, Thomas I. Emerson. ↑
  2. U.S. Const. amend. I. ↑
  3. All the examples in this sentence are discussed in this Article except the last, which is exemplified by Citizens United v. FEC, 558 U.S. 310 (2010), and preceding cases, discussion of which is beyond the scope of this Article. ↑
  4. Justice Elena Kagan spoke of “weaponizing” the First Amendment in a dissenting opinion contending that fees assessed by statute by public employee unions on all who benefitted from their collective bargaining should have been permitted rather than invalidated under the First Amendment: “There is no sugarcoating today’s opinion. The majority . . . prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2501 (2018) (Kagan, J., dissenting). Although the power alignments in her recognition parallel those argued here, I am not claiming that Justice Kagan agrees with the analysis in this Article. ↑
  5. As traced in detail below, this trajectory went from Schacht v. United States, 398 U.S. 58 (1970), to Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), to Kenneth L. Karst, Equality as a Central Principle in the First Amendment, 43 U. Chi. L. Rev. 20 (1975), as recounted in Geoffrey R. Stone, Kenneth Karst’s Equality as a Central Principle in the First Amendment, 75 U. Chi. L. Rev. 37 (2008). None identifies the “equality” being applied as formal equality, which it is. ↑
  6.  U.S. Const.
     

    amend. XIV, § 1. For discussion, see Catharine A. MacKinnon, Feminism Unmodified 33–37, 55, 71–74, 164–67, 275 n.6 (1987), and Catharine A. MacKinnon, Sex Equality (3d ed. 2016). ↑

  7. See, e.g., Catharine A. MacKinnon, Substantive Equality: A Perspective, 96 Minn. L. Rev. 1, 27 (2011); Catharine A. MacKinnon, Substantive Equality Past and Future: The Canadian Charter Experience, in Canada in the World: Comparative Perspectives on the Canadian Constitution 227, 227–44 (Richard Albert & David R. Cameron eds., 2018) [hereinafter MacKinnon, Substantive Equality Past and Future]; Catharine A. MacKinnon, Substantive Equality Revisited: A Reply to Sandra Fredman, 14 Int’l J. Const. L. 739 (2016); Catharine A. MacKinnon, Substantive Equality Revisited: A Rejoinder to Sandra Fredman, 15 Int’l J. Const. L.
    1174 (2017)

    . ↑

  8. This ground zero assumption is so fundamental it is virtually impossible to find articulated explicitly because it operates as unconscious ideology. It is most visible in the choice, when discussing power, only to argue for the legitimacy of state power, that is, the principal power seen to exist, as well as in the relative absence of analysis, for example, of male power (Locke analyzes it in the family only to justify it) or white privilege. See, e.g., John Rawls, Political Liberalism 136 (1996) (“[P]olitical power is always coercive power backed by the government’s use of sanctions, for government alone has the authority to use force in upholding its laws.”); Robert Nozick, Anarchy, State, and Utopia 23 (1974) (“A state claims a monopoly on deciding who may use force when; it says that only it may decide who may use force and under what conditions; it reserves to itself the sole right to pass on the legitimacy and permissibility of any use of force within its boundaries[.]”); Ronald Dworkin, Law’s Empire 188, 190–92 (1986). Given how much violence against women occurs that is no less effectively coercive for being extra-legal, this is all mythic. ↑
  9. This is not always the case. For examples of a lesser but nonetheless existing line of authority, see Part II’s discussion of Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973), and Roberts v. United States Jaycees, 468 U.S. 609 (1984). ↑
  10. See infra text accompanying notes 91–104 (focusing on R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)); infra text accompanying notes 158–62 (focusing on Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d mem., 475 U.S. 1001 (1986)). ↑
  11. Infra Part II discusses this, focusing on R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). ↑
  12. See infra Part II. ↑
  13. As discussed in infra Part III, watershed public debates and judicial decisions in this respect revolved around two Seventh Circuit cases on which certiorari was denied concerning, substantively, anti-Semitism and commercialized misogyny: a permitting restriction applied to Nazis marching in Skokie, Illinois, see Collin v. Smith, 578 F.2d 1197, 1199 (7th Cir. 1978), cert. denied, 439 U.S. 916 (1978), and a civil statute recognizing harms of pornography as sex discrimination, see Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d mem., 475 U.S. 1001 (1986). ↑

Substance-Targeted Choice-of-Law Clauses

Recent cases highlight two persistent problems in United States litigation: the frequency with which parties seek to validate an otherwise unenforceable provision through a choice-of-law clause, and the disparate results courts have reached in such cases. These problems, while not wholly new, have recently become more troublesome and widespread. Courts, however, have not grown more consistent in their approach to them. On the contrary, they increasingly reach varied results on highly similar facts, resulting in endless legal uncertainty, forum shopping, and doubts about judicial impartiality. These effects are all the more problematic because, as most conflicts scholars would agree, parties should not be allowed to choose a jurisdiction’s law solely for the purpose of validating a contested contractual provision; indeed, permitting them to do so is at odds with most purposes of contractual choice-of-law enforcement.

For this reason, this Article proposes that, rather than fall back on complicated public policy exceptions to contractual choice of law, courts should instead identify and refuse to apply choice-of-law clauses that are adopted for the purpose of making a separate contractual provision enforceable. This Article refers to such clauses as “substance-targeted.” Courts typically do not distinguish between targeted and non-targeted choice-of-law clauses. As a result, targeted clauses are often treated as if they represent an ordinary instance of allowing contracting parties the autonomy to choose the law applicable to their dispute. Yet they involve meaningfully different considerations, both because of the reasons that parties choose to include them and because of their ultimate effects. Unlike conventional choice-of-law clauses, substance-targeted clauses are neither aimed at achieving predictability nor likely to result in it. Their frequent use encourages litigation, disadvantages weaker parties, and fosters fear about results-oriented reasoning when their enforceability is tested. These pernicious effects call for a fundamentally different approach to choice-of-law analyses.

Introduction

On October 24, 2001, Christopher Ridgeway, a resident of Louisiana, accepted a job with Michigan-based Stryker Corporation selling medical supplies to Louisiana doctors and hospitals.1 1.See Stone Surgical, LLC v. Stryker Corp., 858 F.3d 383, 386 (6th Cir. 2017).Show More The offer was conditional on Ridgeway’s signing several documents, among them a noncompete agreement that included Michigan choice-of-law and forum selection clauses.2 2.Ridgeway initially disputed the authenticity of the noncompete agreement, but evidence produced in discovery suggested that Ridgeway had received a form noncompete identical to 132 others Stryker had signed with its employees over a five-year period. Id. at 387–88. A jury later found that Ridgeway had signed the noncompete.Id.at 388.Show More Ridgeway went on to become a highly successful salesman for Stryker,3 3.Id. at 386.Show More during which time, according to him, Stryker’s human resource director and other top management assured him on several occasions that no “[noncompete] agreement existed in his file.”4 4.Id. Stryker unsurprisingly disputed Ridgeway’s view of these conversations, maintaining that they related instead to whether Ridgeway had signed a second noncompete that would enable him to receive stock options. Id. at 387.Show More Based on these assurances, Ridgeway maintains, he began in 2013 to explore employment with a competitor, Biomet.5 5.Id. at 386.Show More Stryker learned of these discussions and immediately fired Ridgeway, who then began working for Biomet in Louisiana.6 6.Id. at 387.Show More A few weeks later, Stryker filed suit against Ridgeway in federal court in Michigan.7 7.Ridgeway was fired on September 10, 2013; Stryker filed suit on September 30, 2013. See Complaint for Injunctive and Other Relief at 4, 34, Stryker Corp. v. Ridgeway, No. 1:13-cv-01066 (W.D. Mich. Sept. 30, 2013), 2013 WL 5526657.Show More

Stryker’s claims—for breach of contract, breach of fiduciary duty, and misappropriation of trade secrets—all directly or indirectly involved the noncompete agreement Ridgeway had signed.8 8.See Amended Complaint at 1–2, Stryker Corp. v. Ridgeway, No. 1:13-cv-01066 (W.D. Mich. Oct. 21, 2013), 2013 WL 11276336.Show More The enforceability of noncompetes is a point on which state law differs substantially; in this case, the court noted, “Michigan law favors non-competes and Louisiana law severely restricts them.”9 9.See Stone Surgical, 858 F.3d at 391.Show More There is more consensus on contractual choice-of-law provisions, such as the one in Ridgeway’s contract. Choice-of-law provisions are generally enforced in the United States, with most states recognizing an exception when the chosen law would violate a “fundamental policy” of the state with both the “most significant relationship” to the dispute and a “materially greater interest” in the issue.10 10.See Restatement (Second) of Conflict of Laws §§ 187(2), 188(1) (Am. Law Inst. 1971) [hereinafter Second Restatement].Show More Ridgeway argued that the exception should be applied, but both the district court and the Sixth Circuit disagreed. The Sixth Circuit, while finding both that Louisiana indeed had the most significant relationship to the dispute and that its anti-noncompete policy was “fundamental,” nonetheless concluded that Louisiana’s interest was not “materially greater” than Michigan’s.11 11.Stone Surgical, 858 F.3d at 391.Show More Therefore, Michigan law applied and the noncompete was valid.12 12.Id.Show More

The lawsuit ended badly for Ridgeway. The jury entered a verdict of $745,195 for Stryker.13 13.Id. at 388. The jury also denied relief to Ridgeway in his counterclaims against Stryker, which he originally filed in a separate proceeding but were ultimately consolidated with Stryker’s action. Id.Show More Biomet, fearful of being drawn into the litigation, had terminated Ridgeway’s employment shortly after Stryker’s lawsuit was filed.14 14.Id. at 387.Show More In March 2016, Ridgeway filed for bankruptcy.15 15.See Voluntary Petition for Individuals Filing for Bankruptcy, In re Christopher Martin Ridgeway, No. 16-10643 (Bankr. E.D. La. Mar. 23, 2016).Show More

As Ridgeway was fighting his lengthy and ultimately unsuccessful legal battles, another employee in a dispute over noncompete enforceability was met with a very different result. In 2013, Nevada resident Landon Shores was hired as a sales trainee by Global Experience Specialists (GES), a Nevada company specializing in event marketing.16 16.Freeman Expositions, Inc. v. Glob. Experience Specialists, Inc., No. SACV 17-00364, 2017 WL 1488269, at *1 (C.D. Cal. Apr. 24, 2017).Show More The large majority of Shores’s sales for GES related to events in Las Vegas.17 17.See id. (“During Mr. Shores’ work at GES, eighty to ninety percent of his sales were for events in Las Vegas, Nevada, and the vast majority of his clients were primarily engaged in Las Vegas.” (internal quotation marks omitted)).Show More Three years later, Shores was promoted to sales manager, a position that required him to sign a noncompete agreement that included a Nevada choice-of-law clause.18 18.Id.Show More

In 2017, Shores gave notice at GES and made plans to move to California to accept a job with one of the California offices of Freeman Expositions, a Texas corporation.19 19.Id.Show More GES did not take the news well, and two GES employees made threatening calls to Shores.20 20.See id. at *2. One asked him “Do you really want to go down this road?” and explained that “[o]ne path is to remain with GES and the other path is to go with Freeman and get sued and go broke. It is a lot easier to get out of an offer letter than a non-compete agreement.” Id.Show More Undeterred, Shores began his job at Freeman, which shortly thereafter filed suit in federal court in California seeking a declaration that Shores’s noncompete clause was invalid.21 21.See id.Show More

In contrast to Ridgeway’s experiences in court, Shores and Freeman encountered a friendly reception. Nominally applying precisely the same doctrinal framework the Sixth Circuit had in Ridgeway’s case, the California district court nonetheless concluded that the Nevada choice-of-law clause was invalid22 22.See id. at *5.Show More—reaching this result despite connections between Shores’s employment and Nevada that were, one might conclude, objectively much stronger than Ridgeway’s with Michigan.23 23.Ridgeway, after all, had left a Louisiana-based sales job for another employer in Louisiana; his only contact with Michigan was that his former employer was headquartered there. See Stone Surgical, LLC v. Stryker Corp., 858 F.3d 383, 386–87, 390 (6th Cir. 2017). By contrast, Shores had lived and worked in Nevada prior to beginning employment with Freeman. See Freeman Expositions, 2017 WL 1488269, at *1.Show More In Shores’s case, the court had little difficulty making the determination that California had a materially greater interest in having its well-established anti-noncompete policy applied.24 24.See Freeman Expositions, 2017 WL 1488269, at *5.Show More California had a stake, the court reasoned, in allowing an employer “to hire a California resident to work in California organizing and facilitating exhibitions to showcase California goods and services.”25 25.Id. at *5.Show More While Nevada, too, had a significant interest in protecting its employer, GES, “its interest pale[d] in comparison to California’s.”26 26.Id.Show More The court declined to stay proceedings in light of an ongoing Nevada court action and instead granted Freeman summary judgment on the noncompete issue.27 27.See id. at *1, *3. The court also declined to dismiss a claim by Freeman for interference with its contractual relationship with Shores. See id. at *8.Show More

These two recent cases highlight two persistent problems in United States litigation: the frequency with which parties attempt to use a choice-of-law clause to validate an otherwise unenforceable provision, and the disparate results courts have reached in such cases. These issues are not wholly new.28 28.As early as 1993, one commentator observed that the issue of choice-of-law enforcement in difficult cases “has generated a raft of judicial decisions marked by confusion, temerity, and vacillation.” Kirt O’Neill, Note, Contractual Choice of Law: The Case for a New Determination of Full Faith and Credit Limitations, 71 Tex. L. Rev. 1019, 1020 (1993).Show More In the realm of noncompetes in particular, employers have attached choice-of-law provisions for decades, despite the fact that the enforceability of such clauses (and thus the noncompete as a whole) is often in doubt.29 29.See Catherine L. Fisk, Reflections on The New Psychological Contract and the Ownership of Human Capital, 34 Conn. L. Rev. 765, 782–83 (2002).Show More Nonetheless, both these problems have recently become more persistent and widespread.30 30.See Larry E. Ribstein, From Efficiency to Politics in Contractual Choice of Law, 37 Ga. L. Rev. 363, 367 (2003) [hereinafter Ribstein, Efficiency] (noting that “the number of cases involving contractual choice is increasing significantly over time”).Show More This is true in part because, with the growing popularity of telecommuting and other sorts of long-distance employment, many disputes over noncompetes affect multiple jurisdictions and thus are likely to require a more extended and complex choice-of-law analysis.31 31.See Norman D. Bishara & David Orozco, Using the Resource-Based Theory To Determine Covenant Not To Compete Legitimacy, 87 Ind. L.J. 979, 980, 984–85 (2012) (discussing the need to adapt the law governing noncompetes in a world where a “trend toward the greater use of noncompetes is occurring when . . . geographic boundaries are becoming less important to economic activity”); Gillian Lester & Elizabeth Ryan, Choice of Law and Employee Restrictive Covenants: An American Perspective, 31 Comp. Lab. L. & Pol’y J. 389, 389 (2010) (noting that more mobile employees and more geographically dispersed employers have contributed to a rise in noncompete litigation).Show More Further, noncompetes are spreading to industries that have not historically relied on them, with hair stylists,32 32.See Steven Greenhouse, Noncompete Clauses Increasingly Pop Up in Array of Jobs, N.Y. Times (June 8, 2014), https://www.nytimes.com/2014/06/09/­business/­noncompete-clauses-increasingly-pop-up-in-array-of-jobs.html?r=0 [https://perma.cc/4KQY-H9PV].Show More camp counselors,33 33.See id.Show More dog walkers,34 34.See Matt O’Brien, Even Janitors Have Noncompetes Now. Nobody Is Safe., Wash. Post. (Oct. 18, 2018), https://www.washingtonpost.com/business/2018/10/­18/even-janitors-have-noncompetes-now-nobody-is-safe/?utm_term=.c316c5c­61­487 [https://perma.cc/W7FU-S6M6].Show More and janitors35 35.See id.Show More sometimes being required to sign them—and facing suit by their employer if they violate them.36 36.See id. (describing suit by employer against janitor that was dropped following media coverage).Show More Moreover, employers are increasingly relying on alternatives to noncompetes, such as clauses requiring employees to pay back a portion of their salary or other financial benefits upon quitting or being fired for cause.37 37.See Stuart Lichten & Eric M. Fink, “Just When I Thought I Was Out . . . .”: Post-Employment Repayment Obligations, 25 Wash. & Lee J. Civ. Rts. & Soc. Just. 51, 54 (2018) (describing growth of such provisions’ popularity). These arrangements have recently attracted national publicity for, among other things, the threat they may pose to journalistic independence. See id. at 54–55. Many Sinclair Broadcasting employees, for example, chose to read “politically charged” statements on air, despite their personal reservations, because of worries about triggering repayment clauses in their contracts. Id. The statements were described as “prepackaged reports reflecting conservative views.” Id. at 54 n.15 (internal quotation marks and citation omitted).Show More As one might expect, state law varies significantly on the enforceability of these provisions as well,38 38.See id. at 68–69, 77–78 (noting differences in particular between the law of California and of other states on the enforceability of post-employment repayment obligations).Show More and employers thus have incentives to couple them with choice-of-law clauses.39 39.It is difficult to assess exactly how common choice-of-law clauses are in such agreements because employment contracts are often between private parties. See Norman D. Bishara, Kenneth J. Martin & Randall S. Thomas, An Empirical Analysis of Noncompetition Clauses and Other Restrictive Postemployment Covenants, 68 Vand. L. Rev. 1, 7 (2015). However, it is reasonable to speculate that employers frequently include such provisions, given their popularity in the noncompete context and the uncertainty of the law in this area. For an example of one such case, see Willis Re Inc. v. Hearn, 200 F. Supp. 3d 540, 545–47 (E.D. Pa. 2016) (discussing contractual choice-of-law clause in dispute involving repayment of a retention bonus following employee’s departure for a competitor).Show More

Employment contracts, however, are just the start. Contracting parties in many other areas have similarly attempted to rely on choice-of-law clauses to secure a validating law, and courts have also met those efforts with varying responses. For example, while the use of choice-of-law clauses to sidestep usury laws initially met with increasingly widespread judicial acceptance in most jurisdictions,40 40.See Erin Ann O’Hara, Opting Out of Regulation: A Public Choice Analysis of Contractual Choice of Law, 53 Vand. L. Rev. 1551, 1563–64 (2000) [hereinafter O’Hara, Opting] (noting that, in contrast to the approach of the First Restatement, courts have transitioned to “almost uniformly enforc[ing] choice-of-law provisions that enable the parties to evade state usury laws”). The Second Restatement likely played a role in this acceptance by including a fairly liberal usury provision that operates even in the absence of a choice-of-law clause, providing that a given interest rate will not be invalidated on usury grounds if it is “permissible in a state to which the contract has a substantial relationship” and “not greatly in excess of the rate permitted by the general usury law of the state of the otherwise applicable law.” Second Restatement § 203. The “substantial relationship” requirement is fairly easily satisfied—if, for example, the applicable rate is that of the lender’s place of business or the place where the loan is to be repaid. See Robert Allen Sedler, The Contracts Provisions of the Restatement (Second): An Analysis and a Critique, 72 Colum. L. Rev. 279, 315–18 (1972).Show More courts in some recent cases have declined to enforce such provisions in usury cases where the state of the chosen law lacks the most significant relationship to the dispute.41 41.See Fleetwood Servs., LLC v. Complete Bus. Sols. Grp., 374 F. Supp. 3d 361, 372 (E.D. Pa. 2019) (finding that, despite parties’ choice of Pennsylvania law, Texas law applied because Texas had the most significant relationship to the dispute and “applying Pennsylvania law would violate a fundamental public policy of Texas, namely its antipathy to high interest rates” (internal quotation marks omitted)); Am. Equities Grp. v. Ahava Dairy Prods. Corp., No. 01 Civ.5207, 2004 WL 870260, at *7–9 (S.D.N.Y. Apr. 23, 2004) (declining to enforce a choice of New Jersey law in a case involving a usury defense on the same grounds); Am. Express Travel Related Servs. Co. v. Assih, 893 N.Y.S.2d 438, 445–46 (N.Y. Civ. Ct. 2009) (declining to enforce a choice of Utah law in action to collect credit card payments based on New York’s materially greater interest and “strong public policy against interest rates which are excessive”); see also TriBar Op. Comm., Supp. Report: Opinions on Chosen-Law Provisions Under the Restatement of Conflict of Laws, 68 Bus. Law. 1161, 1161–62, 1162 n.2 (2013) (discussing analysis of this issue in New York courts and noting that it deviates somewhat from the orthodox Second Restatement approach).Show More Courts have frequently refused to enforce choice-of-law provisions in various contexts involving consumer contracts42 42.See William J. Moon, Contracting Out of Public Law, 55 Harv. J. on Legis. 323, 347 (2018) (“[C]ourts have consistently refused to enforce choice-of-law clauses in the context of . . . consumer contracts.”). In some cases, this refusal has been based on concerns about the substantive content of the chosen law. See, e.g., Masters v. DirecTV, Inc., Nos. 08-55825 & 08–55830, 2009 WL 4885132, at *1 (9th Cir. Nov. 19, 2009) (holding that California law, rather than the parties’ chosen law, applied to consumer class action waivers because such waivers were contrary to a fundamental policy in California); see also William J. Woodward Jr., Legal Uncertainty and Aberrant Contracts: The Choice of Law Clause, 89 Chi.-Kent L. Rev. 197, 207–09 (2014) [hereinafter Woodward, Aberrant] (discussing case law on enforcement of choice-of-law clauses in questions regarding the applicability of state statutes that convert one-way attorney’s-fee-shifting provisions into two-way provisions). Procedural concerns about information asymmetry and bargaining power disparities in form consumer contracts may also weigh in favor of non-enforcement. See generally Giesela Rühl, Consumer Protection in Choice of Law, 44 Cornell Int’l L.J. 569 (2011) (considering these issues and advocating for European-style limits on choice of law in consumer contracts).Show More and have also often opted for non-enforcement of provisions intended to evade state franchise law protections, such as laws prohibiting waiver of a franchisee’s right to sue under certain circumstances.43 43.See Andrew Elmore, Franchise Regulation for the Fissured Economy, 86 Geo. Wash. L. Rev. 907, 954 n.229 (2018) (“States prohibit choice of law provisions and waivers in franchise agreements to contract around state franchise law obligations, which will foreclose evasions of a liability through waiver.”). For example, in Wright-Moore Corp. v. Ricoh Corp., the court found that Indiana law applied, rather than the parties’ chosen law of New York, because Indiana had a materially greater interest in the dispute and waiver of a franchisee’s rights was against Indiana’s fundamental policy. 908 F.2d 128, 132–33 (7th Cir. 1990).Show More Recently, emerging issues such as the protection of privacy rights in biometric data44 44.See, e.g., In re Facebook Biometric Info. Privacy Litig., 185 F. Supp. 3d 1155, 1169–70 (N.D. Cal. 2016) (concluding that a California choice-of-law provision could not be enforced where “California has not legislatively recognized a right to privacy in personal biometric data and has not implemented any specific protections for that right” and biometric data protection was a fundamental policy in Illinois, the state of the most significant relationship).Show More and the practice of telemedicine45 45.See J. Kelly Barnes, Telemedicine: A Conflict of Laws Problem Waiting To Happen—How Will Interstate and International Claims Be Decided?, 28 Hous. J. Int’l L. 491, 526–28 (2006) (discussing potential enforceability of choice-of-law clauses in the context of telemedicine).Show More have also raised issues about choice-of-law clause enforceability.

The issue has arisen, too, in the area of marriage and family law. Many courts, for example, allow choice-of-law provisions to validate antenuptial agreements.46 46.See O’Hara, Opting, supra note 40, at 1564–65 (“Antenuptial agreements are also incorporating choice-of-law provisions with mounting, albeit tentative, judicial support.”); see also John F. Coyle, A Short History of the Choice-of-Law Clause, 91 Colo. L. Rev. 1147, 1162–63, 1162 n.42 (2020) (noting that an example of such a clause exists as far back as 1874).Show More But according to one commentator, “[t]he paucity of court decisions” in areas where potentially applicable law differs significantly continues to “create[] uncertainty for all migratory couples who sign such an agreement.”47 47.See Linda J. Ravdin, Premarital Agreements and the Migratory Same-Sex Couple, 48 Fam. L.Q. 397, 406 (2014).Show More Choice-of-law clauses present distinct but related issues in other areas where states are sharply divided, such as the circumstances (if any) under which gestational surrogacy contracts are enforceable.48 48.See, e.g., Hodas v. Morin, 814 N.E.2d 320, 325–26 (Mass. 2004) (applying Section 187 of the Second Restatement to determine that a surrogacy agreement was valid and finding that no state other than the state of the chosen law, Massachusetts, clearly had the “materially greater” relationship to the dispute). Martha A. Field summarizes the manifold approaches states take toward surrogacy contracts, including fairly broad enforcement, enforcement provided certain requirements are met, toleration without explicitly regulating the subject, and criminalizing paid surrogacy. See Martha A. Field, Compensated Surrogacy, 89 Wash. L. Rev. 1155, 1161–65 (2014). Parties to such contracts have sometimes selected the law of a state hospitable to surrogacy, clauses that courts have enforced in some cases “notwithstanding manipulated contacts with the selected state and strong anti-surrogacy policies in the gestational carrier’s domicile.” Susan Frelich Appleton, Leaving Home? Domicile, Family, and Gender, 47 U.C. Davis L. Rev. 1453, 1512 (2014). Parties, however, cannot count on such a result, meaning that “the safest approach [for parties to a surrogacy contract] is to do something substantial in connection with the surrogacy arrangement in that state beyond just choosing its law.” See Joseph F. Morrissey, Surrogacy: The Process, the Law, and the Contracts, 51 Willamette L. Rev. 459, 509 (2015) (also noting that “courts may not honor the choice-of-law provision” in the absence of a substantial contact such as “using a clinic in [the] state [of the chosen law], or using an agency, surrogate or egg donor from that state”).Show More

Yet despite the proliferation of situations in which the validity of choice-of-law clauses is sharply contested, courts have not grown more consistent in their approach to them. In fact, the opposite is true; as the opening examples suggest,49 49.See supra note 23 and accompanying text.Show More courts increasingly reach disparate results on highly similar facts.50 50.See Woodward, Aberrant, supra note 42, at 208–09 (discussing the uncertainty created by the “fact-based and hopelessly uncertain” analysis under Section 187).Show More In one sense, this is surprising, given that jurisdictions in the United States have widely embraced the same authority—Section 187(2) of the Second Restatement of Conflict of Laws—to guide their approach to contractual choice of law.51 51.See infra notes 89–94 and accompanying text.Show More Notwithstanding this rare consensus on choice-of-law methodology, however, courts interpret Section 187(2) in ever-diverging, often wholly contradictory ways.52 52.See infraSubsection II.B.3.Show More This means that the enforceability of choice-of-law clauses involving controversial issues is driven by judicial reasoning that takes highly variegated approaches to seemingly similar facts and is, as a result, often impossible to predict at the time of contracting.

Courts’ inconsistent resolutions of this category of cases have created several problems. To begin with, the disparate results courts have reached on similar facts have undermined faith in the judiciary’s ability to deal with many contested areas of law in a reasoned, unbiased manner.53 53.See David A. Linehan, Due Process Denied: The Forgotten Constitutional Limits on Choice of Law in the Enforcement of Employee Covenants Not To Compete, 2012 Utah L. Rev. 209, 213 (positing that courts, rather than respecting relevant constitutional constraints, “expansively apply their own restrictive rules against noncompetes to virtually any dispute tried within their borders”).Show More Different commentators have argued in parallel, for example, that decisions refusing to honor contractual choice-of-law provisions in noncompete agreements54 54.See Timothy P. Glynn, Interjurisdictional Competition in Enforcing Non-competition Agreements: Regulatory Risk Management and the Race to the Bottom, 65 Wash. & Lee L. Rev. 1381, 1386–87 (2008) (describing and positing the likely future growth of a phenomenon whereby states seek to export their employer-friendly policies extraterritorially by broadly enforcing both noncompetes and choice-of-law clauses).Show More and those insisting on enforcement55 55.See Linehan, supra note 53, at 212 (arguing that courts have applied their choice-of-law principles in noncompete cases in a way that “fail[s] to respect due process constraints on their power to prefer their own laws to those of sister states”).Show More are driven by forum-law preference or other forms of state favoritism.

Moreover, even assuming that judges are applying Section 187 scrupulously and in good faith, the sheer unpredictability of results creates a host of issues in itself.56 56.See id. at 211.Show More Contracting parties are less able to negotiate effectively if the validity of a choice-of-law provision is in doubt,57 57.See, e.g., Lawrence J. La Sala, Note, Partner Bankruptcy and Partnership Dissolution: Protecting the Terms of the Contract and Ensuring Predictability, 59 Fordham L. Rev. 619, 643 n.135 (1991) (“Because parties normally will not enter into a contract if they are unable to foresee accurately their rights and liabilities under the contract, predictability is a prime objective of contract law.”).Show More and disputes are more likely to end in litigation.58 58.See Glynn, supra note 54, at 1385 (calling attention to “the rise of interjurisdictional disputes involving [noncompete] enforcement”).Show More Further, where parties have unequal bargaining power, legal uncertainty about choice-of-law provisions often unfairly disadvantages the weaker party, who might be able to successfully challenge the clause in court but may lack the resources to try.59 59.See, e.g., Woodward, Aberrant, supra note 42, at 212 (noting that “many rational clients will forego using a lawyer in a small claim or defense if they risk paying their lawyer more (probably far more) than the claim or defense is worth”).Show More Finally, the potential to achieve different results in different courts creates an incentive not merely for forum shopping but also for a race to judgment in which parties pursue parallel litigation in hand-picked forums that each hopes will be the first to deliver a final result.60 60.See O’Hara, Opting, supra note 40, at 1566 (“Unfortunately, however, enforcement of these clauses often turns on an ex post race to judgment.”); see also Viva R. Moffat, Making Non-Competes Unenforceable, 54 Ariz. L. Rev. 939, 959 (2012) (noting that disparities in enforcement of both choice-of-law clauses and noncompetes lead to a situation in which both parties “race to the courthouse in an effort to have the jurisdiction with the more favorable law hear the case”). A widely invoked example of this situation is the litigation underlying Advanced Bionics Corp. v. Medtronic, Inc., in which parallel proceedings in Minnesota and California considered the same noncompete but arrived at different outcomes. 59 P.3d 231 (Cal. 2002) (analyzing both Minnesota and California court proceedings). The two courts each ultimately issued contradictory injunctions forbidding the parties from proceeding in the other court, a standoff only resolved when the California Supreme Court ultimately gave way and dissolved the Californian lower court’s injunction. See id. at 237–38; see also Moffat, supranote 60, at 960–63 (describing the case’s procedural history in detail).Show More

A more fundamental objection, however, is that the practice of using a choice-of-law clause to validate a specific provision not only tends to foster judicial confusion, but is out of keeping with the fundamental goals of contractual choice-of-law enforcement. At first glance, this second point might seem counterintuitive: isn’t the whole point of contractual choice-of-law provisions to allow parties to specify the law that will govern their contract? Yet, as this Article will discuss in detail, most advocates of choice-of-law enforcement have assumed that parties will generally choose a particular jurisdiction’s law for reasons other than the content of specific substantive rules—reasons such as, for example, a jurisdiction’s general expertise in a particular area, the desire to choose a law with which both parties are familiar, or the wish to avoid uncertainty.61 61.See infra notes 130–34 and accompanying text.Show More Indeed, conflicts scholars have fairly consistently agreed that contractual choice-of-law clauses should not be used to evade a jurisdiction’s public policy, particularly when it is a strongly defined one.62 62.See infra notes 155–58 and accompanying text.Show More The current approach, however, allows parties to do so in many circumstances, limiting them only through a narrow, difficult-to-apply exception to the general policy of enforcement.63 63.SeeSecond Restatement § 187(2) (delineating a three-pronged exception to the general policy of enforcement).Show More

In response to this situation, this Article argues for a new way of conceptualizing the issue. Rather than fall back on complicated public policy exceptions to contractual choice of law, courts should instead recognize, and generally refuse to enforce, a particularly problematic category of choice-of-law clauses—those that are adopted specifically in the hope of validating a separate contractual provision. This Article refers to such clauses as “substance-targeted.” A provision is substance-targeted, for example, when it reflects an employer’s wish to substitute more favorable Michigan law for the less noncompete-friendly law that would otherwise apply to its Louisiana employee.

Courts typically do not distinguish between targeted and non-targeted choice-of-law clauses. As a result, targeted clauses are often treated as if they represent an ordinary instance of allowing contracting parties to have autonomy to choose the law applicable to their dispute.64 64.See, e.g., Stone Surgical, LLC v. Stryker Corp., 858 F.3d 383, 391 (6th Cir. 2017) (finding “no reason to disturb the parties’ choice of Michigan law” with respect to a noncompete where no state had a materially greater interest than Michigan).Show More Yet they involve meaningfully different considerations, both because of the reasons that parties choose to include them and because of their ultimate effects. Unlike conventional choice-of-law clauses, substance-targeted clauses are neither aimed at achieving predictability nor likely to result in it. Their frequent use encourages litigation, disadvantages weaker parties, and fosters fears about results-oriented reasoning when their enforceability is tested.65 65.See infra Subsection II.B.3.Show More More broadly, scholars have raised concerns about the possibility that choice-of-law clauses adopted to gain the benefit of substantive rules will “undermine the enforcement of public regulatory statutes designed to safeguard a particular vision of the market.”66 66.See Moon, supra note 42, at 325.Show More These pernicious effects—unlike the normally positive consequences of enforcing non-targeted clauses—call for a fundamentally different approach to choice-of-law analyses.

While other authors have advocated reforms in the courts’ approach to choice-of-law clauses,67 67.Notably, Larry Ribstein has argued that courts should “enforce express written choice-of-law clauses notwithstanding common law or statutory restrictions on enforcement, except when the clause is explicitly prohibited by a state where a contracting party resides and no party resides in the designated state.” Ribstein, Efficiency, supra note 30, at 368. Elsewhere, Erin A. O’Hara and Ribstein advocate for a somewhat similar approach under which “choice-maximizing rules proposed in this Article operate as default rules that legislatures can overrule by explicit statutes where necessary to preserve their power to legislate effectively.” Erin A. O’Hara & Larry E. Ribstein, From Politics to Efficiency in Choice of Law, 67 U. Chi. L. Rev.1151, 1153 (2000). In contrast to O’Hara and Ribstein, this Article’s central focus in reforming contractual choice of law is not on legislative involvement, although it does argue that a legislative role in defining areas of significant policy is desirable. See infra notes 269–70 and accompanying text. Rather, this Article argues that targeted and non-targeted choice-of-law clauses are fundamentally different and require distinct treatment.Show More this Article is the first to identify and propose a solution to the problem of substance targeting. The Article argues that it is feasible for courts to identify substance-targeted clauses68 68.See infra Section III.A.Show More and that, once so categorized, such provisions—because they fail to serve the goals of contractual choice of law more generally—should typically not be enforced.69 69.See infra Section III.B.Show More

This Article proceeds in three Parts. The first Part describes the typical framework applied to the enforceability of choice-of-law clauses in the United States. The second argues that substance-targeted choice-of-law clauses should represent a distinct category of conflicts analysis and discusses the reasons why current doctrine fails to adequately address the issues such conflicts present. Finally, the Article sets forth a proposal for reform, arguing that targeted choice-of-law clauses implicating questions of policy should be unenforceable in most cases.

  1. * Martin Luther King, Jr. Professor of Law, University of California, Davis, School of Law; visiting scholar, Freie Universität, Berlin, Germany, 2018–19. I wish to thank Afra Afsharipour and Kevin Johnson for financial support; John Coyle, David Horton, John Patrick Hunt, Lisa Ikemoto, and Courtney Joslin for insightful comments; and Niharika Sachdeva for helpful research assistance. I also thank my hosts at the Freie Universität: Dr. Andreas Fijal, Dr. Felix Hartmann, and Ms. Grit Rother. ↑
  2. See Stone Surgical, LLC v. Stryker Corp., 858 F.3d 383, 386 (6th Cir. 2017). ↑
  3. Ridgeway initially disputed the authenticity of the noncompete agreement, but evidence produced in discovery suggested that Ridgeway had received a form noncompete identical to 132 others Stryker had signed with its employees over a five-year period. Id. at 387–88. A jury later found that Ridgeway had signed the noncompete. Id. at 388. ↑
  4. Id. at 386. ↑
  5. Id. Stryker unsurprisingly disputed Ridgeway’s view of these conversations, maintaining that they related instead to whether Ridgeway had signed a second noncompete that would enable him to receive stock options. Id. at 387. ↑
  6. Id. at 386. ↑
  7. Id. at 387. ↑
  8. Ridgeway was fired on September 10, 2013; Stryker filed suit on September 30, 2013. See Complaint for Injunctive and Other Relief at 4, 34, Stryker Corp. v. Ridgeway, No. 1:13-cv-01066 (W.D. Mich. Sept. 30, 2013), 2013 WL 5526657. ↑
  9. See Amended Complaint at 1–2, Stryker Corp. v. Ridgeway, No. 1:13-cv-01066 (W.D. Mich. Oct. 21, 2013), 2013 WL 11276336. ↑
  10. See Stone Surgical, 858 F.3d at 391. ↑
  11. See Restatement (Second) of Conflict of Laws §§ 187(2), 188(1) (Am. Law Inst. 1971) [hereinafter Second Restatement]. ↑
  12. Stone Surgical, 858 F.3d at 391. ↑
  13. Id. ↑
  14. Id. at 388. The jury also denied relief to Ridgeway in his counterclaims against Stryker, which he originally filed in a separate proceeding but were ultimately consolidated with Stryker’s action. Id. ↑
  15. Id. at 387. ↑
  16. See Voluntary Petition for Individuals Filing for Bankruptcy, In re Christopher Martin Ridgeway, No. 16-10643 (Bankr. E.D. La. Mar. 23, 2016). ↑
  17. Freeman Expositions, Inc. v. Glob. Experience Specialists, Inc., No. SACV 17-00364, 2017 WL 1488269, at *1 (C.D. Cal. Apr. 24, 2017). ↑
  18. See id. (“During Mr. Shores’ work at GES, eighty to ninety percent of his sales were for events in Las Vegas, Nevada, and the vast majority of his clients were primarily engaged in Las Vegas.” (internal quotation marks omitted)). ↑
  19. Id. ↑
  20. Id. ↑
  21. See id. at *2. One asked him “Do you really want to go down this road?” and explained that “[o]ne path is to remain with GES and the other path is to go with Freeman and get sued and go broke. It is a lot easier to get out of an offer letter than a non-compete agreement.” Id. ↑
  22. See id. ↑
  23. See id. at *5. ↑
  24. Ridgeway, after all, had left a Louisiana-based sales job for another employer in Louisiana; his only contact with Michigan was that his former employer was headquartered there. See Stone Surgical, LLC v. Stryker Corp., 858 F.3d 383, 386–87, 390 (6th Cir. 2017). By contrast, Shores had lived and worked in Nevada prior to beginning employment with Freeman. See Freeman Expositions, 2017 WL 1488269, at *1. ↑
  25. See Freeman Expositions, 2017 WL 1488269, at *5. ↑
  26. Id. at *5. ↑
  27. Id. ↑
  28. See id. at *1, *3. The court also declined to dismiss a claim by Freeman for interference with its contractual relationship with Shores. See id. at *8. ↑
  29. As early as 1993, one commentator observed that the issue of choice-of-law enforcement in difficult cases “has generated a raft of judicial decisions marked by confusion, temerity, and vacillation.” Kirt O’Neill, Note, Contractual Choice of Law: The Case for a New Determination of Full Faith and Credit Limitations, 71 Tex. L. Rev. 1019, 1020 (1993). ↑
  30. See Catherine L. Fisk, Reflections on The New Psychological Contract and the Ownership of Human Capital, 34 Conn. L. Rev
    .

    765, 782–83 (2002). ↑

  31. See Larry E. Ribstein, From Efficiency to Politics in Contractual Choice of Law, 37 Ga. L. Rev. 363, 367 (2003) [hereinafter Ribstein, Efficiency] (noting that “the number of cases involving contractual choice is increasing significantly over time”). ↑
  32. See Norman D. Bishara & David Orozco, Using the Resource-Based Theory To Determine Covenant Not To Compete Legitimacy, 87 Ind. L.J. 979, 980, 984–85 (2012) (discussing the need to adapt the law governing noncompetes in a world where a “trend toward the greater use of noncompetes is occurring when . . . geographic boundaries are becoming less important to economic activity”); Gillian Lester & Elizabeth Ryan, Choice of Law and Employee Restrictive Covenants: An American Perspective, 31 Comp. Lab. L. & Pol’y J. 389, 389 (2010) (noting that more mobile employees and more geographically dispersed employers have contributed to a rise in noncompete litigation). ↑
  33.  See Steven Greenhouse, Noncompete Clauses Increasingly Pop Up in
    Array of Jobs, N.Y. Times (June 8, 2014), https://www.nytimes.com/2014/06/09/­business/­noncompete-clauses-increasingly-pop-up-in-array-of-jobs.html?r=0 [https://perma.cc/4KQY-H9PV]. ↑
  34. See id. ↑
  35. See Matt O’Brien, Even Janitors Have Noncompetes Now. Nobody Is Safe., Wash. Post. (Oct. 18, 2018), https://www.washingtonpost.com/business/2018/10/­18/even-janitors-have-noncompetes-now-nobody-is-safe/?utm_term=.c316c5c­61­487 [https://perma.cc/W7FU-S6M6]. ↑
  36. See id. ↑
  37. See id. (describing suit by employer against janitor that was dropped following media coverage). ↑
  38. See Stuart Lichten & Eric M. Fink, “Just When I Thought I Was Out . . . .”: Post-Employment Repayment Obligations, 25 Wash. & Lee J. Civ. Rts. & Soc.
    Just. 51, 54 (2018) (describing growth of such provisions’ popularity). These arrangements have recently attracted national publicity for, among other things, the threat they may pose to journalistic independence. See id. at 54–55. Many Sinclair Broadcasting employees, for example, chose to read “politically charged” statements on air, despite their personal reservations, because of worries about triggering repayment clauses in their contracts. Id. The statements were described as “prepackaged reports reflecting conservative views.” Id. at 54 n.15 (internal quotation marks and citation omitted). ↑
  39. See id. at 68–69, 77–78 (noting differences in particular between the law of California and of other states on the enforceability of post-employment repayment obligations). ↑
  40. It is difficult to assess exactly how common choice-of-law clauses are in such agreements because employment contracts are often between private parties. See Norman D. Bishara, Kenneth J. Martin & Randall S. Thomas, An Empirical Analysis of Noncompetition Clauses and Other Restrictive Postemployment Covenants, 68 Vand. L. Rev. 1, 7 (2015). However, it is reasonable to speculate that employers frequently include such provisions, given their popularity in the noncompete context and the uncertainty of the law in this area. For an example of one such case, see Willis Re Inc. v. Hearn, 200 F. Supp. 3d 540, 545–47 (E.D. Pa. 2016) (discussing contractual choice-of-law clause in dispute involving repayment of a retention bonus following employee’s departure for a competitor). ↑
  41. See Erin Ann O’Hara, Opting Out of Regulation: A Public Choice Analysis of Contractual Choice of Law, 53 Vand. L. Rev. 1551, 1563–64 (2000) [hereinafter O’Hara, Opting] (noting that, in contrast to the approach of the First Restatement, courts have transitioned to “almost uniformly enforc[ing] choice-of-law provisions that enable the parties to evade state usury laws”). The Second Restatement likely played a role in this acceptance by including a fairly liberal usury provision that operates even in the absence of a choice-of-law clause, providing that a given interest rate will not be invalidated on usury grounds if it is “permissible in a state to which the contract has a substantial relationship” and “not greatly in excess of the rate permitted by the general usury law of the state of the otherwise applicable law.” Second Restatement § 203. The “substantial relationship” requirement is fairly easily satisfied—if, for example, the applicable rate is that of the lender’s place of business or the place where the loan is to be repaid. See Robert Allen Sedler, The Contracts Provisions of the Restatement (Second): An Analysis and a Critique, 72 Colum. L. Rev. 279, 315–18 (1972). ↑
  42. See Fleetwood Servs., LLC v. Complete Bus. Sols. Grp., 374 F. Supp. 3d 361, 372 (E.D. Pa. 2019) (finding that, despite parties’ choice of Pennsylvania law, Texas law applied because Texas had the most significant relationship to the dispute and “applying Pennsylvania law would violate a fundamental public policy of Texas, namely its antipathy to high interest rates” (internal quotation marks omitted)); Am. Equities Grp. v. Ahava Dairy Prods. Corp., No. 01 Civ.5207, 2004 WL 870260, at *7–9 (S.D.N.Y. Apr. 23, 2004) (declining to enforce a choice of New Jersey law in a case involving a usury defense on the same grounds); Am. Express Travel Related Servs. Co. v. Assih, 893 N.Y.S.2d 438, 445–46 (N.Y. Civ. Ct. 2009) (declining to enforce a choice of Utah law in action to collect credit card payments based on New York’s materially greater interest and “strong public policy against interest rates which are excessive”); see also TriBar Op. Comm., Supp. Report: Opinions on Chosen-Law Provisions Under the Restatement of Conflict of Laws, 68 Bus. Law. 1161, 1161–62, 1162 n.2 (2013) (discussing analysis of this issue in New York courts and noting that it deviates somewhat from the orthodox Second Restatement approach). ↑
  43. See William J. Moon, Contracting Out of Public Law, 55 Harv. J. on Legis
    .

    323, 347 (2018) (“[C]ourts have consistently refused to enforce choice-of-law clauses in the context of . . . consumer contracts.”). In some cases, this refusal has been based on concerns about the substantive content of the chosen law. See, e.g., Masters v. DirecTV, Inc., Nos. 08-55825 & 08–55830, 2009 WL 4885132, at *1 (9th Cir. Nov. 19, 2009) (holding that California law, rather than the parties’ chosen law, applied to consumer class action waivers because such waivers were contrary to a fundamental policy in California); see also William J. Woodward Jr., Legal Uncertainty and Aberrant Contracts: The Choice of Law Clause, 89 Chi.-Kent L. Rev. 197, 207–09 (2014) [hereinafter Woodward, Aberrant] (discussing case law on enforcement of choice-of-law clauses in questions regarding the applicability of state statutes that convert one-way attorney’s-fee-shifting provisions into two-way provisions). Procedural concerns about information asymmetry and bargaining power disparities in form consumer contracts may also weigh in favor of non-enforcement. See generally Giesela Rühl, Consumer Protection in Choice of Law, 44 Cornell Int’l L.J. 569 (2011) (considering these issues and advocating for European-style limits on choice of law in consumer contracts). ↑

  44. See Andrew Elmore, Franchise Regulation for the Fissured Economy, 86 Geo. Wash. L. Rev. 907, 954 n.229 (2018) (“States prohibit choice of law provisions and waivers in franchise agreements to contract around state franchise law obligations, which will foreclose evasions of a liability through waiver.”). For example, in Wright-Moore Corp. v. Ricoh Corp., the court found that Indiana law applied, rather than the parties’ chosen law of New York, because Indiana had a materially greater interest in the dispute and waiver of a franchisee’s rights was against Indiana’s fundamental policy. 908 F.2d 128, 132–33 (7th Cir. 1990). ↑
  45. See, e.g., In re Facebook Biometric Info. Privacy Litig., 185 F. Supp. 3d 1155, 1169–70 (N.D. Cal. 2016) (concluding that a California choice-of-law provision could not be enforced where “California has not legislatively recognized a right to privacy in personal biometric data and has not implemented any specific protections for that right” and biometric data protection was a fundamental policy in Illinois, the state of the most significant relationship). ↑
  46. See J. Kelly Barnes, Telemedicine: A Conflict of Laws Problem Waiting To Happen—How Will Interstate and International Claims Be Decided?, 28 Hous. J. Int’l L. 491, 526–28 (2006) (discussing potential enforceability of choice-of-law clauses in the context of telemedicine). ↑
  47. See O’Hara, Opting, supra note 40, at 1564–65 (“Antenuptial agreements are also incorporating choice-of-law provisions with mounting, albeit tentative, judicial support.”); see also John F. Coyle, A Short History of the Choice-of-Law Clause, 91 Colo. L. Rev. 1147, 1162–63, 1162 n.42 (2020) (noting that an example of such a clause exists as far back as 1874). ↑
  48. See Linda J. Ravdin, Premarital Agreements and the Migratory Same-Sex Couple, 48 Fam. L.Q. 397, 406 (2014). ↑
  49. See, e.g., Hodas v. Morin, 814 N.E.2d 320, 325–26 (Mass. 2004) (applying Section 187 of the Second Restatement to determine that a surrogacy agreement was valid and finding that no state other than the state of the chosen law, Massachusetts, clearly had the “materially greater” relationship to the dispute). Martha A. Field summarizes the manifold approaches states take toward surrogacy contracts, including fairly broad enforcement, enforcement provided certain requirements are met, toleration without explicitly regulating the subject, and criminalizing paid surrogacy. See Martha A. Field, Compensated Surrogacy, 89 Wash. L. Rev. 1155, 1161–65 (2014). Parties to such contracts have sometimes selected the law of a state hospitable to surrogacy, clauses that courts have enforced in some cases “notwithstanding manipulated contacts with the selected state and strong anti-surrogacy policies in the gestational carrier’s domicile.” Susan Frelich Appleton, Leaving Home? Domicile, Family, and Gender, 47 U.C. Davis L. Rev. 1453, 1512 (2014). Parties, however, cannot count on such a result, meaning that “the safest approach [for parties to a surrogacy contract] is to do something substantial in connection with the surrogacy arrangement in that state beyond just choosing its law.” See Joseph F. Morrissey, Surrogacy: The Process, the Law, and the Contracts, 51 Willamette L. Rev. 459, 509 (2015) (also noting that “courts may not honor the choice-of-law provision” in the absence of a substantial contact such as “using a clinic in [the] state [of the chosen law], or using an agency, surrogate or egg donor from that state”). ↑
  50. See supra note 23 and accompanying text. ↑
  51. See Woodward, Aberrant, supra note 42, at 208–09 (discussing the uncertainty created by the “fact-based and hopelessly uncertain” analysis under Section 187). ↑
  52. See infra notes 89–94 and accompanying text. ↑
  53. See infra Subsection II.B.3. ↑
  54.  See David A. Linehan, Due Process Denied: The Forgotten Constitutional Limits on Choice of Law in the Enforcement of Employee Covenants Not To Compete, 2012 Utah L. Rev. 209, 213 (positing that courts, rather than respecting relevant constitutional constraints, “expansively apply their own restrictive rules against noncompetes to virtually any dispute tried within their borders”). ↑
  55.  See Timothy P. Glynn, Interjurisdictional Competition in Enforcing Non-competition Agreements: Regulatory Risk Management and the Race to the Bottom, 65 Wash. & Lee L. Rev. 1381, 1386–87 (2008) (describing and positing the likely future growth of a phenomenon whereby states seek to export their employer-friendly policies extraterritorially by broadly enforcing both noncompetes and choice-of-law clauses). ↑
  56. See Linehan, supra note 53, at 212 (arguing that courts have applied their choice-of-law principles in noncompete cases in a way that “fail[s] to respect due process constraints on their power to prefer their own laws to those of sister states”). ↑
  57. See id. at 211. ↑
  58.  See, e.g., Lawrence J. La Sala, Note, Partner Bankruptcy and Partnership Dissolution: Protecting the Terms of the Contract and Ensuring Predictability, 59 Fordham L. Rev. 619, 643 n.135 (1991) (“Because parties normally will not enter into a contract if they are unable to foresee accurately their rights and liabilities under the contract, predictability is a prime objective of contract law.”). ↑
  59.  See Glynn, supra note 54, at 1385 (calling attention to “the rise of interjurisdictional disputes involving [noncompete] enforcement”). ↑
  60.  See, e.g., Woodward, Aberrant, supra note 42, at 212 (noting that “many rational clients will forego using a lawyer in a small claim or defense if they risk paying their lawyer more (probably far more) than the claim or defense is worth”). ↑
  61.  See O’Hara, Opting, supra note 40, at 1566 (“Unfortunately, however, enforcement of these clauses often turns on an ex post race to judgment.”); see also Viva R. Moffat, Making Non-Competes Unenforceable, 54 Ariz. L. Rev
    .

    939, 959 (2012) (noting that disparities in enforcement of both choice-of-law clauses and noncompetes lead to a situation in which both parties “race to the courthouse in an effort to have the jurisdiction with the more favorable law hear the case”). A widely invoked example of this situation is the litigation underlying Advanced Bionics Corp. v. Medtronic, Inc., in which parallel proceedings in Minnesota and California considered the same noncompete but arrived at different outcomes. 59 P.3d 231 (Cal. 2002) (analyzing both Minnesota and California court proceedings). The two courts each ultimately issued contradictory injunctions forbidding the parties from proceeding in the other court, a standoff only resolved when the California Supreme Court ultimately gave way and dissolved the Californian lower court’s injunction. See id. at 237–38; see also Moffat, supra note 60, at 960–63 (describing the case’s procedural history in detail). ↑

  62. See infra notes 130–34 and accompanying text. ↑
  63. See infra notes 155–58 and accompanying text. ↑
  64. See Second Restatement § 187(2) (delineating a three-pronged exception to the general policy of enforcement). ↑
  65. See, e.g., Stone Surgical, LLC v. Stryker Corp., 858 F.3d 383, 391 (6th Cir. 2017) (finding “no reason to disturb the parties’ choice of Michigan law” with respect to a noncompete where no state had a materially greater interest than Michigan). ↑
  66. See infra Subsection II.B.3. ↑
  67. See Moon, supra note 42, at 325. ↑
  68. Notably, Larry Ribstein has argued that courts should “enforce express written choice-of-law clauses notwithstanding common law or statutory restrictions on enforcement, except when the clause is explicitly prohibited by a state where a contracting party resides and no party resides in the designated state.” Ribstein, Efficiency, supra note 30, at 368. Elsewhere, Erin A. O’Hara and Ribstein advocate for a somewhat similar approach under which “choice-maximizing rules proposed in this Article operate as default rules that legislatures can overrule by explicit statutes where necessary to preserve their power to legislate effectively.” Erin A. O’Hara & Larry E. Ribstein, From Politics to Efficiency in Choice of Law, 67 U. Chi. L. Rev.
     

    1151, 1153 (2000). In contrast to O’Hara and Ribstein, this Article’s central focus in reforming contractual choice of law is not on legislative involvement, although it does argue that a legislative role in defining areas of significant policy is desirable. See infra notes 269–70 and accompanying text. Rather, this Article argues that targeted and non-targeted choice-of-law clauses are fundamentally different and require distinct treatment. ↑

  69. See infra Section III.A. ↑
  70. See infra Section III.B. ↑
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