320 INDIANA LAW REVIEW [Vol. 37:303
128. Roosevelt, supra note 125, at 2534.
129. Id.
130. See William H. Allen & Erin A. O’Hara, Generation Law and Economic of Conflicts of
Laws: Baxter’s Comparative Impairment and Beyond, 51 S
TAN. L. REV. 1011, 1034-36 (1999);
Erin A. O’Hara & Larry E. Ribstein, From Politics to Efficiency in Choice of Law, 67 U. C
HI. L.
R
EV. 1151, 1192-93 (2000).
131. O’Hara & Ribstein, supra note 130, at 1193.
132. Id.; Allen & O’Hara, supra note 130, at 1034-36.
133. Frederick K. Juenger, How Do You Rate a Century?, 37 W
ILLIAMETTE L. REV. 89, 106
(2001) (quoting Brainerd Currie).
134. Id.
135. O’Hara & Ribstein, supra note 130, at 1193-94.
interests.” If a state grants rights to its domiciliaries, it must grant them to
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nondomiciliaries in the same cases. “The Privileges and Immunities Clause thus
prevents the crudely selective exercise of legislative jurisdiction to favor
domiciliaries.” This constitutional approach would eliminate the need for
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depecage in its current form.
Included in the push to alter the concept of depecage is an acknowledgment
of the danger of distorting legislative intent by choosing certain portions of a
state’s laws to apply to a particular issue. “[L]egislators may enact a given law
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only because of its expected interaction with a complementary law. [It would be]
inappropriate to apply a state’s wrongful death rule without its damage cap,
which may have been an important condition on the adoption of the wrongful
death statute.” For example, state A might provide broad recovery for injuries
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but adopt defenses or immunities to prevent fraudulent claims, which prevents
too broad a recovery. In contrast, state B might permit all injured plaintiffs to
sue for compensation, but prohibit direct actions, cap damages, limit negligence
per se, and apply a narrow res ipsa loquitur doctrine.
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These bundles of law reflect different legislative decisions providing the
optimal combination of legal standards deemed appropriate for that state.
Plaintiffs should not be allowed to put “together half a donkey and half a camel,
and then ride to victory on the synthetic hybrid.” How can, on the one hand,
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depecage emphasize governmental interests and, on the other, accept an outcome
that none of the supposedly interested states would condone. Additionally,
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when laws remain bundled together, any party need only make a single prediction
as to what law may apply rather than making the separate, multiple predictions
that depecage requires. In order for people to abide by the law, they have to
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know which law applies. Separation of issues under depecage makes it much
more difficult to predict which law a court will apply to each issue for any
alleged misconduct.
In some ways depecage is no better than lex loci delicti. Like the lex loci
delicti vested rights theory, depecage interest analysis avoids the difficult task of
resolving conflicts between laws, though in a somewhat different way. Lex loci
delicti denies the possibility of conflict, allowing only one law to govern the
transaction. Depecage admits the conflict. Indeed, depecage recognizes the