-
1
-
-
0347820943
-
Interstate Publication
-
William L. Prosser, Interstate Publication, 51 MICH. L. REV. 959, 971 (1953).
-
(1953)
Mich. L. Rev.
, vol.51
, pp. 959
-
-
Prosser, W.L.1
-
2
-
-
0345880365
-
The Zones of Cyberspace
-
Lawrence Lessig, The Zones of Cyberspace, 48 STAN. L. REV. 1403, 1407 (1996).
-
(1996)
Stan. L. Rev.
, vol.48
, pp. 1403
-
-
Lessig, L.1
-
3
-
-
0347820935
-
Legal Process and Choice of Law
-
William L. Reynolds, Legal Process and Choice of Law, 56 MD. L. REV. 1371, 1371 (1997).
-
(1997)
Md. L. Rev.
, vol.56
, pp. 1371
-
-
Reynolds, W.L.1
-
4
-
-
0345929561
-
-
See infra section II.D
-
See infra section II.D.
-
-
-
-
5
-
-
0347190691
-
-
See infra section VI.A
-
See infra section VI.A.
-
-
-
-
6
-
-
0040280511
-
-
Joseph Beale, whose theory of vested rights was received wisdom for the first half of the twentieth century, considered the question of nomenclature sufficiently important to merit five sections of his treatise. See 1 JOSEPH H. BEALE, A TREATISE ON THE CONFLICT OF LAWS §§ 1.15-1.19 (1935). Beale admitted that "conflict of laws" was not "exactly accurate" and commented that "'[t]he only conflict is among the legal authors who are doing this work.'" He continued, "'[y]et since the expression is consecrated by good use and is simple we may well make use of it.'" Id. § 1.19 (quoting COMTE DE VAREILLES-SOMMIÈRES, LA SYNTHÉSE DU DROIT INTERNATIONAL PRIVÉ xviii (1897)). Interestingly, Beale also mentions Eduardo Cimbali, who argued that the "false designation of the subject" had led scholars astray. Id. (citing EDUARDO CIMBALI, DI UNA NUOVA CATEGRICA DI CONFLITTI DE LEGGE (1892)).
-
(1935)
A Treatise on the Conflict of Laws §§ 1.15-1.19
-
-
Beale, J.H.1
-
7
-
-
23544438821
-
-
Joseph Beale, whose theory of vested rights was received wisdom for the first half of the twentieth century, considered the question of nomenclature sufficiently important to merit five sections of his treatise. See 1 JOSEPH H. BEALE, A TREATISE ON THE CONFLICT OF LAWS §§ 1.15-1.19 (1935). Beale admitted that "conflict of laws" was not "exactly accurate" and commented that "'[t]he only conflict is among the legal authors who are doing this work.'" He continued, "'[y]et since the expression is consecrated by good use and is simple we may well make use of it.'" Id. § 1.19 (quoting COMTE DE VAREILLES-SOMMIÈRES, LA SYNTHÉSE DU DROIT INTERNATIONAL PRIVÉ xviii (1897)). Interestingly, Beale also mentions Eduardo Cimbali, who argued that the "false designation of the subject" had led scholars astray. Id. (citing EDUARDO CIMBALI, DI UNA NUOVA CATEGRICA DI CONFLITTI DE LEGGE (1892)).
-
(1897)
La Synthése du Droit International Privé XVIII
-
-
De Vareilles-Sommières, C.1
-
8
-
-
0347190687
-
-
Joseph Beale, whose theory of vested rights was received wisdom for the first half of the twentieth century, considered the question of nomenclature sufficiently important to merit five sections of his treatise. See 1 JOSEPH H. BEALE, A TREATISE ON THE CONFLICT OF LAWS §§ 1.15-1.19 (1935). Beale admitted that "conflict of laws" was not "exactly accurate" and commented that "'[t]he only conflict is among the legal authors who are doing this work.'" He continued, "'[y]et since the expression is consecrated by good use and is simple we may well make use of it.'" Id. § 1.19 (quoting COMTE DE VAREILLES-SOMMIÈRES, LA SYNTHÉSE DU DROIT INTERNATIONAL PRIVÉ xviii (1897)). Interestingly, Beale also mentions Eduardo Cimbali, who argued that the "false designation of the subject" had led scholars astray. Id. (citing EDUARDO CIMBALI, DI UNA NUOVA CATEGRICA DI CONFLITTI DE LEGGE (1892)).
-
(1892)
Di una Nuova Categrica di Conflitti de Legge
-
-
Cimbali, E.1
-
9
-
-
0346560626
-
-
Conflict of Laws § 1.1 (2d Ed.)
-
For precisely this reason Eugene Scoles and Peter Hay find fault with the phrase "Conflict of Laws," arguing that because forum choice-of-law rules will select a governing law, there is no conflict between laws. See EUGENE F. SCOLES & PETER HAY, CONFLICT OF LAWS § 1.1 (2d ed. 1992).
-
(1992)
-
-
Scoles, E.F.1
Hay, P.2
-
10
-
-
0345929554
-
-
2d ed. emphasis omitted
-
See LEA BRILMAYER, CONFLICT OF LAWS 1 (2d ed. 1995) (emphasis omitted).
-
(1995)
Conflict of Laws
, pp. 1
-
-
Brilmayer, L.1
-
11
-
-
0347820944
-
-
See Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981) (plurality opinion)
-
See Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981) (plurality opinion).
-
-
-
-
12
-
-
0347820951
-
-
note
-
One of my claims is that this is a counterproductive way of framing the question. See infra section IV.B. In fact, I will be changing a fair amount of what I find to be misleading terminology. At the moment, though, I am simply discussing the current understanding of conflicts.
-
-
-
-
13
-
-
0347190638
-
Conflicts on an Unruly Horse: Reciprocal Claims and Tolerances in Interstate and International Law
-
See Nicholas deBelleville Katzenbach, Conflicts on an Unruly Horse: Reciprocal Claims and Tolerances in Interstate and International Law, 65 YALE L.J. 1087, 1099 (1956) (stating that the task of courts always "involves a choice of law"). Beale also held the position that choice-of-law rules were part of forum law; in fact, it is a necessary consequence of his principle that law can operate only within a state. See 1 BEALE, supra note 6, § 5.4, at 53 ("Conflict of Laws is part of the law of the forum. It is quite obvious that since the only law that can be applicable in a state is the law of that state, no law of a foreign state can have there the force of law. . . . The foreign law is a fact in the transaction."). Of course, he did not conclude that variance was therefore permissible; he found general organizing principles in the nature of law. Id. § 4.12, at 46. I think there is something different about choice-of-law rules, though it turns out to be essentially that they are so much a matter of federal concern as to be subject to severe constitutional strictures. (On my account, not the Supreme Court's. See infra Part V.)
-
(1956)
Yale L.J.
, vol.65
, pp. 1087
-
-
DeBelleville Katzenbach, N.1
-
14
-
-
84937290714
-
Legal Realism, Lex Fori, and the Choice-of-Law Revolution
-
Note
-
In fact, variance between forums is more likely to take the form of each forum's looking to its own law. This tendency, which Michael Green calls "lexforism," is the deeply troubling aspect of disuniformity. See Michael S. Green, Note, Legal Realism, Lex Fori, and the Choice-of-Law Revolution, 104 YALE L.J. 967, 967 (1995).
-
(1995)
Yale L.J.
, vol.104
, pp. 967
-
-
Green, M.S.1
-
15
-
-
0346560624
-
-
note
-
The external perspective supposes that choice-of-law rules are uniquely determined by objective principles external to any state's law and hence that each forum must reach the same conclusion. See BRILMAYER, supra note 8, at 1. The theoretical approach that I advocate will destroy the dichotomy. The Constitution is, in an interesting way, both internal and external. It is internal in that, by virtue of the Supremacy Clause, it is part of the local law of each state See, e.g., Claflin v. Houseman, 93 U.S. 130, 137 (1876). It is external in that it imposes rules state law cannot change - again, by virtue of the Supremacy Clause. See, e.g., Felder v. Casey, 487 U.S. 131, 138 (1988). And what I will suggest is that the Constitution dictates a mixed perspective - both internal and external. It does not require consistency across states, so that each state must adopt the same rules (the fully external perspective). Rather, it requires a sort of consistency within states, a lesser degree of freedom than that recognized by the internal perspective. This will surely seem cryptic, but a full explanation must await some ground-laying.
-
-
-
-
16
-
-
0347190639
-
Conflict, Crisis and Confusion in New York
-
hereinafter SELECTED ESSAYS
-
I am not objecting to the idea that a court may tell a plaintiff that, although he cannot recover in tort, he may recover in contract. Cf. BRAINERD CURRIE, Conflict, Crisis and Confusion in New York, in SELECTED ESSAYS ON THE CONFLICT OF LAWS 690, 693-94 (1963) [hereinafter SELECTED ESSAYS] (labeling as "anachronistic" criticizing a court for "tell[ing] a litigant that though he cannot recover in contract he may in tort"). The problem I am concerned with arises when the plaintiff pleads in tort and the court refuses to evaluate the tort claim.
-
(1963)
Selected Essays on the Conflict of Laws
, pp. 690
-
-
Currie, B.1
-
17
-
-
0347190688
-
-
note
-
Courts do not ordinarily apply law not invoked by the parties. Affirmative defenses, for example, are waived if not raised at the proper stage. If the court refuses to honor the law the plaintiff pleads, I will suggest, it must be because that law is legally unavailable. And that means either that some other law operates to interfere with it, or that the law the plaintiff invokes grants him no rights.
-
-
-
-
18
-
-
0347190690
-
-
note
-
Of course, choosing one law effectively resolves the conflict between them: it awards victory to the chosen law. But it does so, we will see, without a consideration of the factors that should govern a resolution of the conflict. Identifying these factors is, of course, a difficult task. Common policy considerations include predictability, discouragement of forum shopping, and the rather amorphous goal of fairness to litigants. These are certainly values that a system for resolving conflicts between sovereigns should seek to promote. My prescriptions, when they come, will indeed seek to promote them. But they will not rest simply on those values; instead, they will be drawn from another body of law aimed chiefly at melding the several states into a federal union: the Constitution. Without the constraints I identify, states may succumb to the temptation to promote forum interests, slighting the concerns of other states. Within the constraints, states may do many things to promote the canonical conflicts values. But interstate discrimination needs to be addressed first; at this moment in our conflicts jurisprudence, it is the primary evil and the chief distraction from sound conflicts rules.
-
-
-
-
19
-
-
0347820946
-
-
note
-
Consequently, I will refer to the subject as "conflicts," and continue to refer to "choice-of-law rules" where appropriate. My ultimate suggestion is that things will be clearer if we eliminate the idea of "choosing" a "governing" law, but that is a different stage of the rocket and must drop away later.
-
-
-
-
20
-
-
0347820942
-
-
See infra section IV.B
-
See infra section IV.B.
-
-
-
-
21
-
-
0345929556
-
-
See infra section III.C.2
-
See infra section III.C.2.
-
-
-
-
22
-
-
0345929557
-
-
See infra section IV.C
-
See infra section IV.C.
-
-
-
-
23
-
-
0347190685
-
-
note
-
The territorial approach to conflicts, discussed below, did in fact work by identifying the law that governed a transaction. Interest analysis retained this vocabulary, even though the description no longer fit the operation of the theory. See infra section IV.C.
-
-
-
-
24
-
-
0347513507
-
Notes on Methods and Objectives in the Conflict of Laws
-
supra note 14
-
When a state finds foreign law inapplicable, it may seem not to have rejected foreign rights. See CURRIE, Notes on Methods and Objectives in the Conflict of Laws, in SELECTED ESSAYS, supra note 14, at 177, 181-82. Effectively, of course, it has done so, and perhaps few will find the rhetoric of choice an effective fig leaf. Whether its potential for obscuring conflicts is the real reason for its continued popularity is a psychological question, and my suggestions along these lines are only hypotheses. It does seem to be the case that Currie saw a difference between applying local law and rejecting foreign rights, see id., and without this difference, interest analysis's bias toward forum law is obviously problematic. See infra section IV.C.
-
Selected Essays
, pp. 177
-
-
Currie1
-
25
-
-
0346560623
-
-
See infra section V.A
-
See infra section V.A.
-
-
-
-
26
-
-
0347190686
-
-
See infra section IV.C
-
See infra section IV.C.
-
-
-
-
27
-
-
0345929555
-
-
See infra Part VI
-
See infra Part VI.
-
-
-
-
28
-
-
0347820939
-
-
See BRILMAYER, supra note 8, § 1.1, at 11-13
-
See BRILMAYER, supra note 8, § 1.1, at 11-13.
-
-
-
-
29
-
-
0347820896
-
The Historic Bases of Private International Law
-
See Hessel E. Yntema, The Historic Bases of Private International Law, 2 AM. J. COMP. L. 297, 300-01 (1953).
-
(1953)
Am. J. Comp. L.
, vol.2
, pp. 297
-
-
Yntema, H.E.1
-
30
-
-
0345929496
-
A Page of History
-
See Friedrich K. Juenger, A Page of History, 35 MERCER L. REV. 419, 436 (1984). This led to pleadings asserting, for example, that wrongful acts were committed on the island of Minorca, in the city of London. See id. at 436-37.
-
(1984)
Mercer L. Rev.
, vol.35
, pp. 419
-
-
Juenger, F.K.1
-
31
-
-
0347190630
-
Marginal Remarks on the New Trends in American Conflicts Law
-
"[E]verything worthy of trying has been tried before, under the same or other labels." Kurt H. Nadelmann, Marginal Remarks on the New Trends in American Conflicts Law, 28 LAW & CONTEMP. PROBS. 860, 860 (1963). For thorough recapitulations, see, e.g., Juenger, supra note 28; Yntema, supra note 27.
-
(1963)
Law & Contemp. Probs.
, vol.28
, pp. 860
-
-
Nadelmann, K.H.1
-
32
-
-
0347212241
-
-
Melville M. Bigelo ed., Boston, Little, Brown, & Co.
-
See, e.g., JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS, FOREIGN AND DOMESTIC (Melville M. Bigelo ed., Boston, Little, Brown, & Co. 1883). Story extensively developed the idea of comity as a basis for resolving conflicts. Comity does not govern interstate conflicts, however; the Constitution does. Story's work has value for this article primarily because it illuminates the original understanding of some constitutional provisions. Apart from that, I will largely ignore his contributions.
-
(1883)
Commentaries on the Conflict of Laws, Foreign and Domestic
-
-
Story, J.1
-
33
-
-
0345929512
-
-
See 1 BEALE, supra note 6, at xv
-
See 1 BEALE, supra note 6, at xv.
-
-
-
-
34
-
-
0346560494
-
-
See id. § 1.12, at 10. This is, of course, the jurisprudential position of Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842), which Beale cited approvingly several times. See, e.g., 1 BEALE, supra note 6, § 3.3, at 22 & n.1, § 3.5, at 26, § 4.6, at 39 & n.1. Erie Railroad v. Tompkins, 304 U.S. 64 (1938), overruled Swift just three years after the publication of Beale's treatise. One cannot avoid some sympathy for an author whose 2000-page magnum opus, the product of over twenty years of labor, enjoyed such a brief reign before one of its primary supports was unceremoniously knocked away. Worse was to follow
-
See id. § 1.12, at 10. This is, of course, the jurisprudential position of Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842), which Beale cited approvingly several times. See, e.g., 1 BEALE, supra note 6, § 3.3, at 22 & n.1, § 3.5, at 26, § 4.6, at 39 & n.1. Erie Railroad v. Tompkins, 304 U.S. 64 (1938), overruled Swift just three years after the publication of Beale's treatise. One cannot avoid some sympathy for an author whose 2000-page magnum opus, the product of over twenty years of labor, enjoyed such a brief reign before one of its primary supports was unceremoniously knocked away. Worse was to follow.
-
-
-
-
35
-
-
0347190580
-
-
note
-
Nowadays Beale's first principles appear to be somewhat arbitrary assumptions, but within the jurisprudential climate of his day, they were fairly unremarkable.
-
-
-
-
36
-
-
0347820834
-
-
See 1 BEALE, supra note 6, § 4.12, at 45-46, § 59.2, at 308, § 61.1, at 311
-
See 1 BEALE, supra note 6, § 4.12, at 45-46, § 59.2, at 308, § 61.1, at 311.
-
-
-
-
37
-
-
0347820826
-
-
Id. § 4.12, at 46
-
Id. § 4.12, at 46.
-
-
-
-
38
-
-
0347190627
-
-
See id. §§ 3.4, 5.4
-
See id. §§ 3.4, 5.4.
-
-
-
-
39
-
-
0347190625
-
-
Id. § 8A.9, at 66
-
Id. § 8A.9, at 66.
-
-
-
-
40
-
-
0345929553
-
-
See id.; see also id. § 8A.6. Thus, "[p]arties are bound, not by the law, but by obligations created by the law." Id. § 3.4, at 25
-
See id.; see also id. § 8A.6. Thus, "[p]arties are bound, not by the law, but by obligations created by the law." Id. § 3.4, at 25.
-
-
-
-
41
-
-
0345929548
-
-
See id. § 8A.25
-
See id. § 8A.25.
-
-
-
-
42
-
-
0345929510
-
-
See, e.g., Slater v. Mexican Natl. R.R. Co., 194 U.S. 120, 126 (1904) (Holmes, J.); Loucks v. Standard Oil Co., 120 N.E. 198, 200 (N.Y. 1918) (Cardozo, J.)
-
See, e.g., Slater v. Mexican Natl. R.R. Co., 194 U.S. 120, 126 (1904) (Holmes, J.); Loucks v. Standard Oil Co., 120 N.E. 198, 200 (N.Y. 1918) (Cardozo, J.).
-
-
-
-
43
-
-
0347190678
-
-
note
-
Indeed, the granting of what Beale termed a "remedial right" - an actual damages claim - was in fact a matter of forum law. See 1 BEALE, supra note 6, § 8A.28, at 85-86. This allowed the forum to recognize the right to redress while retaining some flexibility in crafting a remedy - a feature Holmes exploited in Oceanic Steam Navigation Co. v. Mellor, 233 U.S. 718 (1914).
-
-
-
-
44
-
-
0347190636
-
-
See 1 BEALE, supra note 6, § 5.4, at 53 ("It is quite obvious that since the only law that can be applicable in a state is the law of that state, no law of a foreign state can have there the force of law. . . . The foreign law is a fact in the transaction.")
-
See 1 BEALE, supra note 6, § 5.4, at 53 ("It is quite obvious that since the only law that can be applicable in a state is the law of that state, no law of a foreign state can have there the force of law. . . . The foreign law is a fact in the transaction.").
-
-
-
-
45
-
-
0345929549
-
-
note
-
"Since the power of a state is supreme within its own territory, no other state can exercise power there." Id. § 61.1, at 311.
-
-
-
-
46
-
-
0347190679
-
-
note
-
While canvassing objections to the name "conflict of laws," Beale offers a description that precisely fits his theory: "The laws of different sovereigns do not contend with one another for the mastery. Each one keeps within its sphere of operation, and only asserts its power in a foreign country when the law of that country commands or permits it. In practice, a conflict is impossible." Id. § 1.16, at 13 (quotation omitted).
-
-
-
-
47
-
-
0346560618
-
-
note
-
Indeed, Beale believed that attempts to resolve conflicts were doomed to failure. "Which of the two independent sovereigns should yield is a question not susceptible of a solution on which all parties would agree." 3 BEALE, supra note 6, § 53, at 1929.
-
-
-
-
48
-
-
0345929492
-
-
Katzenbach, supra note 11, at 1096
-
Katzenbach, supra note 11, at 1096.
-
-
-
-
49
-
-
0347820898
-
-
See BRILMAYER, supra note 8, § 1.2, at 20 (calling Beale's theory "quaintly motivated" but "well-developed," and rejecting critics' accusation that it was "mindless dogmatism"). Beale did himself no favors with his vaguely Shakespearean response to accusations of dogmatism: "One cannot deny that most of the statements in this work will be dogmatic. Does not the Bar desire dogmatic statements?" 1 BEALE, supra note 6, at xiii
-
See BRILMAYER, supra note 8, § 1.2, at 20 (calling Beale's theory "quaintly motivated" but "well-developed," and rejecting critics' accusation that it was "mindless dogmatism"). Beale did himself no favors with his vaguely Shakespearean response to accusations of dogmatism: "One cannot deny that most of the statements in this work will be dogmatic. Does not the Bar desire dogmatic statements?" 1 BEALE, supra note 6, at xiii.
-
-
-
-
50
-
-
84936068266
-
-
Beale believed that cases had unique right answers and that courts enforce rights that exist prior to and independent of their decisions. See 1 BEALE, supra note 6, §§ 3.1-3.4. This cluster has obvious affinities with Dworkin's account in RONALD DWORKIN, LAW'S EMPIRE (1986). Indeed, elements of Beale's conflicts theory are enjoying a modest resurgence as part of a conflicts counterrevolution. See Perry Dane, Vested Rights, "Vestedness," and Choice-of- Law, 96 YALE L.J. 1191 (1987). The present article belongs to the same tradition; like Dane's, it attempts to resuscitate a few key concepts that Beale got right.
-
(1986)
Law's Empire
-
-
Dworkin, R.1
-
51
-
-
84928461964
-
Vested Rights, "Vestedness," and Choice-of-Law
-
Beale believed that cases had unique right answers and that courts enforce rights that exist prior to and independent of their decisions. See 1 BEALE, supra note 6, §§ 3.1-3.4. This cluster has obvious affinities with Dworkin's account in RONALD DWORKIN, LAW'S EMPIRE (1986). Indeed, elements of Beale's conflicts theory are enjoying a modest resurgence as part of a conflicts counterrevolution. See Perry Dane, Vested Rights, "Vestedness," and Choice-of-Law, 96 YALE L.J. 1191 (1987). The present article belongs to the same tradition; like Dane's, it attempts to resuscitate a few key concepts that Beale got right.
-
(1987)
Yale L.J.
, vol.96
, pp. 1191
-
-
Dane, P.1
-
53
-
-
0347756080
-
-
cmt. 2, illus. 2
-
For example, the victim of a poisoning might travel through many states before the effects of the poison were felt. Beale, reasoning that no tort exists without an injury, would look to the law of the state where the poison took effect, since that effect is the last occurrence necessary to the vesting of the right. But which state the victim happens to be in when this occurs has little to do with any policy relevant to conflicts of law; nor, without the strong territorialist assumption, does it seem to have much to do with the nature of law. I owe this example to Lea Brilmayer, see BRILMAYER, supra note 8, § 1.3, at 25-26, who points out further that "it is no easy matter to determine [as the First Restatement requires] where the 'deleterious substance takes effect upon the body,'" id. (alteration in original) (quoting RESTATEMENT (FIRST) OF CONFLICT OF LAWS § 377 cmt. 2, illus. 2 (1934)).
-
(1934)
Restatement (First) of Conflict of Laws § 377
-
-
-
54
-
-
0347820891
-
-
Katzenbach, supra note 11, at 1107
-
Katzenbach, supra note 11, at 1107.
-
-
-
-
55
-
-
0347820938
-
-
1 BEALE, supra note 6, at xiii
-
1 BEALE, supra note 6, at xiii.
-
-
-
-
56
-
-
0010794348
-
-
Louis's diary entry for July 14, 1789, the date of the storming of the Bastille, reads simply "Rien." ("Nothing."). SIMON SCHAMA, CITIZENS 419 (1989). In fairness to Louis, this recorded an unsuccessful hunt.
-
(1989)
Citizens
, pp. 419
-
-
Schama, S.1
-
57
-
-
0345929495
-
-
1 BEALE, supra note 6, at xii
-
1 BEALE, supra note 6, at xii.
-
-
-
-
58
-
-
0347820937
-
-
See Katzenbach, supra note 11, at 1087-88
-
See Katzenbach, supra note 11, at 1087-88.
-
-
-
-
59
-
-
0345929489
-
On the Displacement of the Law of the Forum
-
supra note 14
-
CURRIE, On the Displacement of the Law of the Forum, in SELECTED ESSAYS, supra note 14, at 3, 6; see also David F. Cavers, A Critique of the Choice-of-Law Problem, 47 HARV. L. REV. 173, 175-76 (1933) ("Indeed, one may now wonder how any juristic construct such as 'right' could have been accepted as fundamental in the explanation of any important aspect of judicial activity."); Juenger, supra note 28, at 435 ("pure sophistry").
-
Selected Essays
, pp. 3
-
-
Currie1
-
60
-
-
0041446526
-
A Critique of the Choice-of-Law Problem
-
CURRIE, On the Displacement of the Law of the Forum, in SELECTED ESSAYS, supra note 14, at 3, 6; see also David F. Cavers, A Critique of the Choice-of-Law Problem, 47 HARV. L. REV. 173, 175-76 (1933) ("Indeed, one may now wonder how any juristic construct such as 'right' could have been accepted as fundamental in the explanation of any important aspect of judicial activity."); Juenger, supra note 28, at 435 ("pure sophistry").
-
(1933)
Harv. L. Rev.
, vol.47
, pp. 173
-
-
Cavers, D.F.1
-
62
-
-
0346560578
-
-
See, e.g., id. at 314-18
-
See, e.g., id. at 314-18.
-
-
-
-
63
-
-
0346560585
-
-
See supra note 49 and accompanying text
-
See supra note 49 and accompanying text.
-
-
-
-
65
-
-
0347820907
-
-
304 U.S. 64 (1938)
-
304 U.S. 64 (1938).
-
-
-
-
66
-
-
0345929550
-
-
1 BEALE, supra note 6, § 1.12, at 9
-
1 BEALE, supra note 6, § 1.12, at 9.
-
-
-
-
67
-
-
0345929490
-
-
COOK, supra note 57, at 33. One obvious problem with this "predictive" theory of law is that it fails to explain the thinking of a judge deciding a case, whose attempts to discern the correct rule of law are surely not attempts to predict his own behavior. Cook points out this difficulty, then comments that "our discussion at this point does not require further consideration of the matter." Id. at 30 n.52a
-
COOK, supra note 57, at 33. One obvious problem with this "predictive" theory of law is that it fails to explain the thinking of a judge deciding a case, whose attempts to discern the correct rule of law are surely not attempts to predict his own behavior. Cook points out this difficulty, then comments that "our discussion at this point does not require further consideration of the matter." Id. at 30 n.52a.
-
-
-
-
68
-
-
84884067475
-
Natural Law
-
Id. at 30 (quoting OLIVER WENDELL HOLMES, Natural Law, in COLLECTED LEGAL PAPERS 310, 313 (1920)). Of course, Holmes's Supreme Court opinions constituted canonical applications of the vested rights theory. See, e.g., Western Union Tel. Co. v. Brown, 234 U.S. 542, 547 (1914); Slater v. Mexican Natl. R.R. Co., 194 U.S. 120, 126 (1904). Cook offers a creative reconstruction of Slater as rooted in policy judgment rather than in the vested rights theory, which he then cautiously attributes to Holmes. See COOK, supra note 57, at 35. It may be safer to rest with the observation that Holmes contained multitudes.
-
(1920)
Collected Legal Papers
, pp. 310
-
-
Holmes, O.W.1
-
69
-
-
84928850230
-
Interest Analysis and the Presumption of Forum Law
-
See, e.g., Larry Kramer, Interest Analysis and the Presumption of Forum Law, 56 U. CHI. L. REV. 1301, 1301 (1989) ("[W]hile [the realist] criticism successfully undercut the intellectual foundation of traditional choice of law theory, a plausible alternative was not proposed until the 1950s.").
-
(1989)
U. Chi. L. Rev.
, vol.56
, pp. 1301
-
-
Kramer, L.1
-
70
-
-
0347190634
-
-
note
-
Cook would probably not have been unhappy to be identified more with his negative than with his positive analysis; he believed that "[t]he removal of the weeds is . . . as constructive in effect as the planting and cultivation of the useful vegetables." COOK, supra note 57, at ix.
-
-
-
-
71
-
-
0347820887
-
-
Id. at 21
-
Id. at 21.
-
-
-
-
72
-
-
0347820894
-
-
note
-
Hessel Yntema calls the local law theory "empty luggage." See Yntema, supra note 27, at 316.
-
-
-
-
73
-
-
0347820895
-
-
See Cavers, supra note 56, at 192-94
-
See Cavers, supra note 56, at 192-94.
-
-
-
-
74
-
-
0347820900
-
-
See id. at 194
-
See id. at 194.
-
-
-
-
75
-
-
58249120780
-
Rights, Fairness, and Choice of Law
-
As the text above says, this "instrumental" approach to law is generally considered a significant difference between Beale and Currie. See, e.g., Lea Brilmayer, Rights, Fairness, and Choice of Law, 98 YALE L.J. 1277, 1284 (1989). Yet it seems quite easy to assimilate Currie's insight into Beale's system by reasoning that if the state does not want its law applied, it does not extend its law to cover the transaction. Thus the law attaches no legal consequences; it creates no rights or liabilities for parties to sue on. (Following Perry Dane, I will call such restrictions on the extension of rights "rules of scope." See Dane, supra note 48, at 1203-04. I discuss rules of scope at more length in section II.E.) Beale never suggested that state laws must always have maximum scope - obviously, he was quite emphatic about territorial limitations. True, he did not see that limitation as the sovereign's choice, but if a state statute provided that only local citizens could recover for in-state torts, Beale would presumably not have maintained that out-of-staters acquired rights thereby. His fascination with the general common law obscures this point but provides no theoretical obstacle. In truth, it was Currie who tended to disregard states' expressions of intent not to have their laws applied to cases in which he found them "interested," creating willy-nilly the practical equivalent of rights. See BRILMAYER, supra note 8, §§ 2.5.2-2.5.4 (noting that Currie ignores state choice-of-law rules dictating application of another state's law, though these seem like expressions of lack of interest). The fact that the language of rights is more characteristic of Beale than of Currie has been made to bear more jurisprudential weight than it can easily support. See infra note 166. See generally Green, supra note 12. Now that the clamor has died down, the realist attack on vested rights looks rather like any other attempt to overthrow an entrenched vocabulary seen as essentially conservative. The rhetoric may be philosophical, but the stakes are political.
-
(1989)
Yale L.J.
, vol.98
, pp. 1277
-
-
Brilmayer, L.1
-
76
-
-
0347931065
-
A Defense of Currie's Governmental Interest Analysis
-
Readers may note that I have now moved from the question of whether application of a law advances a state's policies to the concept of a "state interest" without much discussion of either. Currie was similarly elliptical, an unfortunate parsimony that has engendered substantial confusion. A fairly authoritative source, Currie's student, coauthor, and defender Herma Kay, has suggested that a state is interested if the policies behind the particular law at issue - discerned by the ordinary process of statutory interpretation - would be promoted by the application of that law. See Herma Hill Kay, A Defense of Currie's Governmental Interest Analysis, 215 RECUEIL DES COURS 9, 50 (1984). This is the conventional way to determine if a law is intended to apply to a particular case. See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248-59 (1991) (discussing statutory interpretation and legislative intent with respect to extraterritorial application of Title VII). Thus, when Currie wrote that the proper role of courts was to promote forum policies, he was saying simply that they should apply laws with an eye to legislative intent. And that is simply enforcing the rights conferred by the law - neither an unusual nor an excessively instrumentalist approach. But cf. Dane, supra note 48, at 1259 (claiming that only a "Decision-Based" (realist) approach would claim that courts are "primarily charged" with advancing the policies of their states). What makes interest analysis problematic, I will suggest, is Currie's tendency to construct legislative intent around domiciliary status. See infra section IV.C.
-
(1984)
Recueil Des Cours
, vol.215
, pp. 9
-
-
Kay, H.H.1
-
77
-
-
0346560524
-
Choice of Law and the State's Interest in Protecting Its Own
-
Larry Kramer has criticized this presumption as unnecessary. See Kramer, supra note 65. I will suggest that it is unconstitutional, joining Dean Ely and others. See, e.g., John Hart Ely, Choice of Law and the State's Interest in Protecting Its Own, 23 WM. & MARY L. REV. 173, 180-91 (1981); Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 COLUM. L. REV. 249, 310-12 (1992). I will also suggest that it is basically incoherent, which I think has not been done. See infra section IV.C.
-
(1981)
Wm. & Mary L. Rev.
, vol.23
, pp. 173
-
-
Ely, J.H.1
-
78
-
-
77951971796
-
Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law
-
Larry Kramer has criticized this presumption as unnecessary. See Kramer, supra note 65. I will suggest that it is unconstitutional, joining Dean Ely and others. See, e.g., John Hart Ely, Choice of Law and the State's Interest in Protecting Its Own, 23 WM. & MARY L. REV. 173, 180-91 (1981); Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 COLUM. L. REV. 249, 310-12 (1992). I will also suggest that it is basically incoherent, which I think has not been done. See infra section IV.C.
-
(1992)
Colum. L. Rev.
, vol.92
, pp. 249
-
-
Laycock, D.1
-
79
-
-
0346560574
-
-
See CURRIE, supra note 22, at 184
-
See CURRIE, supra note 22, at 184.
-
-
-
-
81
-
-
0347190614
-
Neumeier v. Keuhner: Where Are the Emperor's Clothes?
-
See, e.g., LEA BRILMAYER, AN INTRODUCTION TO JURISDICTION IN THE AMERICAN FEDERAL SYSTEM 240 (1986); Aaron Twerski, Neumeier v. Keuhner: Where Are the Emperor's Clothes?, 1 HOFSTRA L. REV. 104, 107 (1973).
-
(1973)
Hofstra L. Rev.
, vol.1
, pp. 104
-
-
Twerski, A.1
-
82
-
-
1842739296
-
Survival of Actions: Adjudication versus Automation in the Conflict of Laws
-
supra note 14
-
See CURRIE, Survival of Actions: Adjudication versus Automation in the Conflict of Laws, in SELECTED ESSAYS, supra note 14, at 128, 156, 168.
-
Selected Essays
, pp. 128
-
-
Currie1
-
83
-
-
0347820892
-
-
See BRILMAYER, supra note 8, § 2.1.2, at 61-62
-
See BRILMAYER, supra note 8, § 2.1.2, at 61-62.
-
-
-
-
84
-
-
84858736977
-
Interest Analysis and the Myth of Legislative Intent
-
hereinafter Brilmayer, Interest Analysis
-
See, e.g., Lea Brilmayer, Interest Analysis and the Myth of Legislative Intent, 78 MICH. L. REV. 392 (1980) [hereinafter Brilmayer, Interest Analysis]; Lea Brilmayer, Methods and Objectives in the Conflict of Laws: A Challenge, 35 MERCER L. REV. 555, 555 (1984) [herein- after Brilmayer, A Challenge] ("[I]nterest analysis is methodologically bankrupt."); id. at 563 ("Currie was as metaphysical as Beale."). I discuss Brilmayer's attack in more detail below. See infra section III.B.2.
-
(1980)
Mich. L. Rev.
, vol.78
, pp. 392
-
-
Brilmayer, L.1
-
85
-
-
0347190561
-
Methods and Objectives in the Conflict of Laws: A Challenge
-
herein-after Brilmayer, A Challenge
-
See, e.g., Lea Brilmayer, Interest Analysis and the Myth of Legislative Intent, 78 MICH. L. REV. 392 (1980) [hereinafter Brilmayer, Interest Analysis]; Lea Brilmayer, Methods and Objectives in the Conflict of Laws: A Challenge, 35 MERCER L. REV. 555, 555 (1984) [herein-after Brilmayer, A Challenge] ("[I]nterest analysis is methodologically bankrupt."); id. at 563 ("Currie was as metaphysical as Beale."). I discuss Brilmayer's attack in more detail below. See infra section III.B.2.
-
(1984)
Mercer L. Rev.
, vol.35
, pp. 555
-
-
Brilmayer, L.1
-
86
-
-
0347820889
-
-
See International Shoe Co. v. Washington, 326 U.S. 310 (1945)
-
See International Shoe Co. v. Washington, 326 U.S. 310 (1945).
-
-
-
-
87
-
-
0347820893
-
-
note
-
The forum may of course dismiss the case on forum non conveniens grounds. See Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).
-
-
-
-
88
-
-
0347190623
-
The Myth of the Unprovided-For Case
-
hereinafter Kramer, Myth
-
The exception is the unprovided-for case, in which no state has an interest. Here Currie suggested forum law as the only plausible candidate. Larry Kramer suggests to the contrary that a lack of interest is a lack of interest in granting relief, and that consequently the plaintiff should lose. See Larry Kramer, The Myth of the Unprovided-For Case, 75 VA. L. REV. 1045 (1989) [hereinafter Kramer, Myth]; see also Larry Kramer, Rethinking Choice of Law, 90 COLUM. L. REV. 277, 293-307 (1990) [hereinafter Kramer, Rethinking Choice of Law]. My analysis will suggest something similar.
-
(1989)
Va. L. Rev.
, vol.75
, pp. 1045
-
-
Kramer, L.1
-
89
-
-
84930560341
-
Rethinking Choice of Law
-
hereinafter Kramer, Rethinking Choice of Law
-
The exception is the unprovided-for case, in which no state has an interest. Here Currie suggested forum law as the only plausible candidate. Larry Kramer suggests to the contrary that a lack of interest is a lack of interest in granting relief, and that consequently the plaintiff should lose. See Larry Kramer, The Myth of the Unprovided-For Case, 75 VA. L. REV. 1045 (1989) [hereinafter Kramer, Myth]; see also Larry Kramer, Rethinking Choice of Law, 90 COLUM. L. REV. 277, 293-307 (1990) [hereinafter Kramer, Rethinking Choice of Law]. My analysis will suggest something similar.
-
(1990)
Colum. L. Rev.
, vol.90
, pp. 277
-
-
Kramer, L.1
-
90
-
-
0346560568
-
-
note
-
This is essentially the Supreme Court's constitutional position, though its notion of interest is even weaker than Currie's. See infra section V.A.
-
-
-
-
91
-
-
0346560523
-
-
note
-
Though I will argue that personal and legislative jurisdictions are quite different, they have similar histories. Both were originally territorial. Compare Pennoyer v. Neff, 95 U.S. 714, 722 (1877) (holding that a state can exercise personal jurisdiction only over people present within its borders), with Allgeyer v. Louisiana, 165 U.S. 578 (1897) (rejecting application of Louisiana law to a contract formed in New York). The Court retreated from territorialism at about the same time in both contexts. The personal jurisdiction recantation came with International Shoe Co. v. Washington, 326 U.S. 310 (1945); territoriality gave way with respect to legislative jurisdiction in Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 476 (1947). But see Quill v. North Dakota, 504 U.S. 298, 319-20 (1992) (Scalia, J., concurring) (distinguishing between types of jurisdiction).
-
-
-
-
92
-
-
0347820844
-
-
CURRIE, supra note 22, at 181-82
-
CURRIE, supra note 22, at 181-82.
-
-
-
-
93
-
-
0345929486
-
-
note
-
It is coherent in that a conventional legal principle (territorialism) specifies which right prevails.
-
-
-
-
94
-
-
0346560573
-
-
note
-
This is, I realize, a bold claim, and I do not attempt a justification at this point. What I will show is that interest analysis does not really choose an applicable law, as it claims. See infra section IV.C. If we examine interest analysis through the lens of conflicts, what emerges is not a conventional legal rationale for choosing applicable law but simple discrimination against foreign law and foreign litigants.
-
-
-
-
95
-
-
0041354917
-
-
supra note 81
-
A more sophisticated version of interest analysis has been developed by Larry Kramer. See, e.g., Kramer, Rethinking Choice of Law, supra note 81. Because his approach is in many ways similar to the one I advocate, I will postpone consideration of his work, noting here that it escapes many of the faults with which I charge Currie's approach.
-
Rethinking Choice of Law
-
-
Kramer1
-
96
-
-
0347190626
-
-
note
-
This has been true for a while; more than sixty years ago David Cavers commented that "the article on a conflict of laws topic which does not deplore a current 'confusion of authority' is still a rarity." Cavers, supra note 56, at 177.
-
-
-
-
97
-
-
0347190617
-
Against Comity
-
criticizing Kramer
-
See Louise Weinberg, Against Comity, 80 GEO. L.J. 53 (1991) (criticizing Kramer).
-
(1991)
Geo. L.J.
, vol.80
, pp. 53
-
-
Weinberg, L.1
-
99
-
-
0347190624
-
-
American Conflicts Law § 107 (4th ed.)
-
See, e.g., ROBERT A. LEFLAR ET AL., AMERICAN CONFLICTS LAW § 107 (4th ed. 1986).
-
(1986)
-
-
Leflar, R.A.1
-
100
-
-
0041947968
-
Choice of Law and the Federal System
-
See, e.g., William F. Baxter, Choice of Law and the Federal System, 16 STAN. L. REV. 1 (1963).
-
(1963)
Stan. L. Rev.
, vol.16
, pp. 1
-
-
Baxter, W.F.1
-
101
-
-
0345929488
-
-
supra note 81, n.149
-
See, e.g., Kramer, Rethinking Choice of Law, supra note 81, at 321-22 n.149 ("no explanatory power"); Laycock, supra note 73, at 253 ("Trying to be all things to all people, [the Second Restatement] produced mush."); Joseph William Singer, Real Conflicts, 69 B.U. L. REV. 1, 77 (1989) ("mystifies rather than clarifies").
-
Rethinking Choice of Law
, pp. 321-322
-
-
Kramer1
-
102
-
-
0346039536
-
Real Conflicts
-
See, e.g., Kramer, Rethinking Choice of Law, supra note 81, at 321-22 n.149 ("no explanatory power"); Laycock, supra note 73, at 253 ("Trying to be all things to all people, [the Second Restatement] produced mush."); Joseph William Singer, Real Conflicts, 69 B.U. L. REV. 1, 77 (1989) ("mystifies rather than clarifies").
-
(1989)
B.U. L. Rev.
, vol.69
, pp. 1
-
-
Singer, J.W.1
-
104
-
-
0347820838
-
-
See id. at supra note 94, §§ 6, 145. The Second Restatement may not be as worthless as it seems. It does at least identify relevant considerations. If states simply used these factors, sincerely and consistently, to create rules about which law prevailed, we would have a regime quite like the one I will claim the Constitution imposes. See infra section VI.C
-
See id. at supra note 94, §§ 6, 145. The Second Restatement may not be as worthless as it seems. It does at least identify relevant considerations. If states simply used these factors, sincerely and consistently, to create rules about which law prevailed, we would have a regime quite like the one I will claim the Constitution imposes. See infra section VI.C.
-
-
-
-
105
-
-
0041354917
-
-
supra note 81
-
See, e.g., Brilmayer, supra note 71; Dane, supra note 48. It is odd that these scholars seem to think that interest analysis necessarily opposes the idea of rights. See Kramer, Rethinking Choice of Law, supra note 81, at 278. Brilmayer's rights lead to a personal-jurisdiction-style analysis. See Brilmayer, supra note 71, at 1279. Consequently, I do not endorse her account.
-
Rethinking Choice of Law
, pp. 278
-
-
Kramer1
-
106
-
-
0347820831
-
-
See, e.g., Ely, supra note 73; Katzenbach, supra note 11, at 1093 ("Among the United States these are problems ultimately subject to Constitutional prescriptions."); Laycock, supra note 73
-
See, e.g., Ely, supra note 73; Katzenbach, supra note 11, at 1093 ("Among the United States these are problems ultimately subject to Constitutional prescriptions."); Laycock, supra note 73.
-
-
-
-
107
-
-
0346560566
-
-
See infra Part IV
-
See infra Part IV.
-
-
-
-
108
-
-
0041354917
-
-
supra note 81
-
Those troubled by the possibility of unenforceable rights might wish to alter the terminology here, perhaps distinguishing "prima facie" rights, which can be defeated, from "true" rights, which permit recovery. Cf. Kramer, Rethinking Choice of Law, supra note 81, at 293-304. I do not think such semantic reticulation is necessary; where appropriate I will characterize some rights as "enforceable" without worrying about the implication that some are not.
-
Rethinking Choice of Law
, pp. 293-304
-
-
Kramer1
-
109
-
-
0042356657
-
-
supra note 81
-
This is not quite true to Currie's understanding of his theory. If interest analysis were truly a scope analysis, then unprovided-for cases (where neither state has an interest) would be cases in which the plaintiff simply had no right. Currie remained blinded by the idea that the task in a multistate case is to find which law governs, not which right prevails. He was unwilling to conclude that no law governs, and thus found it necessary to apply forum law in unprovided-for cases. Larry Kramer has redescribed unprovided-for cases from what I think is the correct perspective, making the point that a lack of interest implies simply a lack of rights. See Kramer, Myth, supra note 81, at 1064. He maintains (and I agree) that this is consistent with Currie's approach.
-
Myth
, pp. 1064
-
-
Kramer1
-
110
-
-
0345929487
-
-
See, e.g., CURRIE, supra note 76, at 169 ("[The resort to forum law] is not an ideal; it is simply the best that is available.")
-
See, e.g., CURRIE, supra note 76, at 169 ("[The resort to forum law] is not an ideal; it is simply the best that is available.").
-
-
-
-
111
-
-
0347301017
-
Married Women's Contracts: A Study in Conflict-of-Laws Method
-
supra note 14, CURRIE, supra note 22, at 181-83
-
See CURRIE, Married Women's Contracts: A Study in Conflict-of-Laws Method, in SELECTED ESSAYS, supra note 14, at 77, 107, 117-21; CURRIE, supra note 22, at 181-83.
-
Selected Essays
, pp. 77
-
-
Currie1
-
112
-
-
0347190584
-
-
See, e.g., CURRIE, supra note 22, at 183; CURRIE, supra note 76, at 169-70. It is thus not quite true that Currie maintained that "[a]ll choice of law decisions should be simply substantive decisions about the substantive rules' proper reach." BRILMAYER, supra note 8, at 108. First, Currie did distinguish between scope analysis and conflicts analysis even within his theory - though admittedly, since an interested forum will always apply its own law, the scope analysis ends the matter if it uncovers a forum interest. Second, and more importantly, Currie realized - and hoped - that federal conflicts rules would displace his rule of preference for forum law. This latter point shows quite clearly his awareness of the distinction between scope decisions and conflicts decisions
-
See, e.g., CURRIE, supra note 22, at 183; CURRIE, supra note 76, at 169-70. It is thus not quite true that Currie maintained that "[a]ll choice of law decisions should be simply substantive decisions about the substantive rules' proper reach." BRILMAYER, supra note 8, at 108. First, Currie did distinguish between scope analysis and conflicts analysis even within his theory - though admittedly, since an interested forum will always apply its own law, the scope analysis ends the matter if it uncovers a forum interest. Second, and more importantly, Currie realized - and hoped - that federal conflicts rules would displace his rule of preference for forum law. This latter point shows quite clearly his awareness of the distinction between scope decisions and conflicts decisions.
-
-
-
-
113
-
-
0347820850
-
-
note
-
Please do not quote this out of context.
-
-
-
-
114
-
-
0346560569
-
-
note
-
Brilmayer makes this point well in her extended critique of interest analysis. See BRILMAYER, supra note 8, § 2.5. My discussion here is indebted to hers on several points, most notably the tension between objectivity and subjectivity in the nature of governmental interests.
-
-
-
-
115
-
-
0347820849
-
-
See id.
-
See id.
-
-
-
-
116
-
-
0346560570
-
-
note
-
Currie's waffling is reflected in the alternately objective and subjective nature of governmental interests. Brilmayer's extended discussion of interest analysis reveals this well, although I think she goes too far in faulting Currie for not treating state choice-of-law rules as rules of scope. See infra section III.B.2.
-
-
-
-
117
-
-
0346560527
-
-
See supra section II.D
-
See supra section II.D.
-
-
-
-
118
-
-
0347190583
-
-
note
-
Baxter's comparative impairment principle, in particular, has the elegance and good sense that typically prompts scholars to think that we'd have come up with that idea if we'd thought about it first.
-
-
-
-
119
-
-
0347190581
-
-
See infra section VI.B
-
See infra section VI.B.
-
-
-
-
120
-
-
0346560529
-
-
note
-
More generally, the conflicts problem is that state assertions of legislative jurisdiction overlap. Telling states that their rights do not extend as far as the legislature has said they do is pointless. In fact, I will argue, the Constitution tends to enlarge, rather than contract, the scope of state-created rights. What a conflicts theory must do is manage the competing claims of authority; it must oversee the conflicts between rights. This is obviously a matter of conflicts rules, not rules of scope.
-
-
-
-
122
-
-
0041354917
-
-
supra note 81
-
See Kramer, Rethinking Choice of Law, supra note 81, at 339-44. Kramer also suggests that coordination may naturally emerge, see id. at 343-44, although the history of conflicts should give optimists pause.
-
Rethinking Choice of Law
, pp. 339-344
-
-
Kramer1
-
123
-
-
0347820886
-
-
See 3 BEALE, supra note 6, § 53, at 1929; CURRIE, supra note 102, at 107, 117-21; CURRIE, supra note 22, at 181-83
-
See 3 BEALE, supra note 6, § 53, at 1929; CURRIE, supra note 102, at 107, 117-21; CURRIE, supra note 22, at 181-83.
-
-
-
-
124
-
-
0347190622
-
-
See supra section II.E
-
See supra section II.E.
-
-
-
-
125
-
-
0347301020
-
Return of the Renvoi
-
As Kramer succinctly puts it, "Our entire legal system rests on the concept of vested rights." Larry Kramer, Return of the Renvoi, 66 N.Y.U. L. REV. 979, 990-91 (1991).
-
(1991)
N.Y.U. L. Rev.
, vol.66
, pp. 979
-
-
Kramer, L.1
-
126
-
-
0345929451
-
-
See 1 BEALE, supra note 6, § 1.3; see also SCOLES & HAY, supra note 7, § 2.6, at 15 n.10
-
See 1 BEALE, supra note 6, § 1.3; see also SCOLES & HAY, supra note 7, § 2.6, at 15 n.10.
-
-
-
-
127
-
-
0346560526
-
-
See, e.g., Oceanic Steam Navigation Co. v. Mellor, 233 U.S. 718 (1914)
-
See, e.g., Oceanic Steam Navigation Co. v. Mellor, 233 U.S. 718 (1914).
-
-
-
-
128
-
-
0347190605
-
-
note
-
For example, one jurisdiction might have adopted the "mailbox rule," providing that the contract is formed as soon as the recipient of the offer sends acceptance; another might hold that the contract is formed only upon receipt of the acceptance. See BRILMAYER, supra note 8, § 1.3, at 26, § 1.5.2, at 40-41.
-
-
-
-
129
-
-
0347190574
-
Federal Extraterritoriality and Fifth Amendment Due Process
-
See, e.g., Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981) (upholding application of Minnesota law to accident occurring in Wisconsin); Skiriotes v. Florida 313 U.S. 69 (1941) (upholding Florida prosecution of Florida resident for actions on high seas); Lea Brilmayer & Charles Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 HARV. L. REV. 1217, 1241-42 (1992) ("It is also fairly well established that a state may regulate its residents, even when they are acting outside the state.").
-
(1992)
Harv. L. Rev.
, vol.105
, pp. 1217
-
-
Brilmayer, L.1
Norchi, C.2
-
130
-
-
0347190620
-
-
note
-
See, e.g., United States v. Alvarez-Machain, 112 S. Ct. 2188 (1992) (upholding kidnapping of Mexican national to be tried in United States for conspiracy to torture United States government agents in Mexico). See generally Brilmayer & Norchi, supra note 120, at 1229 (discussing rules on federal extraterritorial criminal prosecution). Even the operation of federal law within the states would seem to pose problems for Beale's theory of a single, territorially supreme sovereign. Beale admits no difficulty: he suggests that each state of the union remains a "separate legal unit," 1 BEALE, supra note 6, § 2.2 (discussing annexation of Hawaii), and then explains that federal law is local law everywhere, see id. § 2.3, at 18 ("It is perfectly correct to say . . . that the law of each of the states consists of the constitution, treaties, and statutes of the United States, the constitution and statutes of the particular state, and the common law of that state."). This analysis allows his theory to operate but, characteristically, suppresses the possibility of conflict between state and federal law.
-
-
-
-
131
-
-
0347190606
-
-
note
-
In fact, Beale attempted to defend territorialism as a matter of positive law. "Since the power of a state is supreme within its own territory, no other state can exercise power there," he wrote. 1 BEALE, supra note 6, § 61.1. He then turned for support to Chief Justice Marshall's opinion in Rose v. Himely, 8 U.S. (4 Cranch) 241 (1808), but the quotation in fact suggests that personal and territorial traditions mingle: "It is conceded that the legislation of every country is territorial; that beyond its own territory, it can only affect its own subjects or citizens." 8 U.S. (4 Cranch) at 279 (emphasis added). Law has never been purely territorial in practice.
-
-
-
-
132
-
-
0042422996
-
-
Cf. PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 24 (1991) ("Law is something we do, not something we have as a consequence of something we do.").
-
(1991)
Constitutional Interpretation
, pp. 24
-
-
Bobbitt, P.1
-
134
-
-
0039631961
-
Transcendental Nonsense and the Functional Approach
-
See Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 822, 826 (1935).
-
(1935)
Colum. L. Rev.
, vol.35
, pp. 809
-
-
Cohen, F.S.1
-
135
-
-
0347190621
-
-
Id. at 822
-
Id. at 822.
-
-
-
-
136
-
-
33645110738
-
What Pragmatism Means
-
See WILLIAM JAMES, What Pragmatism Means, in PRAGMATISM AND THE MEANING OF TRUTH, 27, 31-32 (1978) ("You must bring out of each word its practical cash-value . . . ").
-
(1978)
Pragmatism and the Meaning of Truth
, pp. 27
-
-
James, W.1
-
137
-
-
0042356665
-
Positivism and Realism
-
A.J. Ayer ed. & David Rynin trans.
-
Cohen, supra note 125, at 826. The logical positivists maintained that the meaning of a sentence consists of its method of verification. See, e.g., Moritz Schlick, Positivism and Realism, In LOGICAL POSTIVISM 86-88, 106-07 (A.J. Ayer ed. & David Rynin trans., 1959). It follows immediately that an unverifiable proposition - one with no empirical consequences - is meaningless.
-
(1959)
Logical Postivism
, pp. 86-88
-
-
Schlick, M.1
-
138
-
-
0001417422
-
The Path of the Law
-
See, e.g., COOK, supra note 57, at 33; Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 461 (1897).
-
(1897)
Harv. L. Rev.
, vol.10
, pp. 457
-
-
Holmes, O.W.1
-
139
-
-
0347820845
-
-
See, e.g., BRILMAYER, supra note 8, § 1.5.2, at 37 ("[The realists] believed in addition, that there simply were no such things as vested rights."); Dane, supra note 48, at 1725 (commenting that realists "have spent a good deal of ink denying the metaphysical reality of legal norms or rights 'existing' independent of their enforcement")
-
See, e.g., BRILMAYER, supra note 8, § 1.5.2, at 37 ("[The realists] believed in addition, that there simply were no such things as vested rights."); Dane, supra note 48, at 1725 (commenting that realists "have spent a good deal of ink denying the metaphysical reality of legal norms or rights 'existing' independent of their enforcement").
-
-
-
-
140
-
-
0347820885
-
-
note
-
The logical positivists, at least, were clear that they were not denying the existence of anything but simply abandoning meaningless discourse. See, e.g., Schlick, supra note 128, at 106-07.
-
-
-
-
141
-
-
0042373958
-
New Law, Non-Retroactivity, and Constitutional Remedies
-
Law has, of course, endured this debate, though current theory wisely tends to characterize it as a waste of time. See, e.g., DWORKIN, supra note 48, at 225; Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731, 1764 (1991).
-
(1991)
Harv. L. Rev.
, vol.104
, pp. 1731
-
-
Fallon R.H., Jr.1
Meltzer, D.J.2
-
144
-
-
25444532975
-
The Meaning of a Word
-
3d ed.
-
Cf. J.L. Austin, The Meaning of a Word, in PHILOSOPHICAL PAPERS 55, 57-58 (3d ed. 1979).
-
(1979)
Philosophical Papers
, pp. 55
-
-
Austin, J.L.1
-
146
-
-
0347820883
-
-
note
-
Cohen certainly seemed to understand this point. See Cohen, supra note 125, at 835 ("A definition of law is useful or useless. It is not true or false . . . .").
-
-
-
-
147
-
-
0347820841
-
Tom Stoppard: The Art of Theater VII
-
reprinted Paul Delaney ed.
-
Another reason is the fate of the related movements to which Cohen pointed. Cook's realist approach to conflicts linked itself quite closely to the logical positivists; he identified himself explicitly as a "scientific empiricist," COOK, supra note 57, at 46, and took as his epigraph for Chapter III a restatement of their central principle of verification, attributing it to the Marxist and pragmatist philosopher Sydney Hook. See id. at 71. Logical positivism was a dramatic failure; when A.J. Ayer was asked for the chief difficulty in a television interview, he is reported to have responded, "I suppose its main defect was that it wasn't true." See Shusha Guppy, Tom Stoppard: The Art of Theater VII, reprinted in TOM STOPPARD IN CONVERSATION 177, 187 (Paul Delaney ed., 1994); see also id. (describing criticism of logical positivism as "attacking a dodo"). For a concise philosophical evaluation of logical positivism, reaching essentially the same conclusion as Ayer, see HACKER, supra note 133, at 64-65. Both positivists and realists, I suggest, erred by embracing a dogmatic reductivism rather than a sensitive analysis of the actual use of language. Realism's value lies in its skeptical contributions, not in any attempts to create a general theory of law, and it may be better understood as consisting simply of the former. See JEFFRIE G. MURPHY & JULES L. COLEMAN, PHILOSOPHY OF LAW 35 (1990).
-
(1994)
Tom Stoppard in Conversation
, pp. 177
-
-
Guppy, S.1
-
148
-
-
0009094795
-
-
Another reason is the fate of the related movements to which Cohen pointed. Cook's realist approach to conflicts linked itself quite closely to the logical positivists; he identified himself explicitly as a "scientific empiricist," COOK, supra note 57, at 46, and took as his epigraph for Chapter III a restatement of their central principle of verification, attributing it to the Marxist and pragmatist philosopher Sydney Hook. See id. at 71. Logical positivism was a dramatic failure; when A.J. Ayer was asked for the chief difficulty in a television interview, he is reported to have responded, "I suppose its main defect was that it wasn't true." See Shusha Guppy, Tom Stoppard: The Art of Theater VII, reprinted in TOM STOPPARD IN CONVERSATION 177, 187 (Paul Delaney ed., 1994); see also id. (describing criticism of logical positivism as "attacking a dodo"). For a concise philosophical evaluation of logical positivism, reaching essentially the same conclusion as Ayer, see HACKER, supra note 133, at 64-65. Both positivists and realists, I suggest, erred by embracing a dogmatic reductivism rather than a sensitive analysis of the actual use of language. Realism's value lies in its skeptical contributions, not in any attempts to create a general theory of law, and it may be better understood as consisting simply of the former. See JEFFRIE G. MURPHY & JULES L. COLEMAN, PHILOSOPHY OF LAW 35 (1990).
-
(1990)
Philosophy of Law
, pp. 35
-
-
Murphy, J.G.1
Coleman, J.L.2
-
149
-
-
0345929479
-
-
See supra section II.E
-
See supra section II.E.
-
-
-
-
150
-
-
0347820871
-
-
See sources cited supra note 78
-
See sources cited supra note 78.
-
-
-
-
151
-
-
0347190618
-
-
See, e.g., BRILMAYER, supra note 8, § 2.1.2, at 65
-
See, e.g., BRILMAYER, supra note 8, § 2.1.2, at 65.
-
-
-
-
152
-
-
0345929480
-
-
See, e.g., CURRIE, supra note 102, at 118
-
See, e.g., CURRIE, supra note 102, at 118.
-
-
-
-
153
-
-
0347190608
-
-
See CURRIE, supra note 76, at 169
-
See CURRIE, supra note 76, at 169.
-
-
-
-
154
-
-
0347820884
-
-
See CURRIE, supra note 102, at 107, 117
-
See CURRIE, supra note 102, at 107, 117.
-
-
-
-
155
-
-
0345929482
-
-
note
-
This is not precisely true; after all, Currie suggested that in true conflicts, courts should apply forum law. But he did not see this as a resolution. See id. at 117-21. Nor should he have; it is obviously discriminatory and, I will argue, unconstitutional.
-
-
-
-
156
-
-
0347190609
-
-
See CURRIE, supra note 22, at 181-82
-
See CURRIE, supra note 22, at 181-82.
-
-
-
-
157
-
-
0346560567
-
-
CURRIE, supra note 102, at 119
-
CURRIE, supra note 102, at 119.
-
-
-
-
158
-
-
0041855703
-
The Verdict of Quiescent Years
-
supra note 14
-
CURRIE, The Verdict of Quiescent Years, in SELECTED ESSAYS, supra note 14, at 592.
-
Selected Essays
, pp. 592
-
-
Currie1
-
159
-
-
0346560560
-
-
See BRILMAYER, supra note 8, §§ 2.5.1-.4
-
See BRILMAYER, supra note 8, §§ 2.5.1-.4.
-
-
-
-
160
-
-
0347820876
-
-
Id. § 2.5.5, at 110
-
Id. § 2.5.5, at 110.
-
-
-
-
161
-
-
0346560525
-
-
See, e.g., American Banana Co. v. United Fruit Co., 213 U.S. 347, 355-56 (1909) (Holmes, J.) ("No doubt in regions subject to no sovereign . . . [civilized nations] may treat some relations between their citizens as governed by their own law, and keep to some extent the old notion of personal sovereignty alive."); 1 BEALE, supra note 6, § 45.2 (discussing jurisdiction over actions arising on the high seas)
-
See, e.g., American Banana Co. v. United Fruit Co., 213 U.S. 347, 355-56 (1909) (Holmes, J.) ("No doubt in regions subject to no sovereign . . . [civilized nations] may treat some relations between their citizens as governed by their own law, and keep to some extent the old notion of personal sovereignty alive."); 1 BEALE, supra note 6, § 45.2 (discussing jurisdiction over actions arising on the high seas).
-
-
-
-
162
-
-
0346560564
-
-
note
-
A rule looking to another state's law may also reflect an intention to give the same rights as that state's substantive law would in a domestic case. This is the most natural interpretation of a rule that, for example, provides that the rights of heirs shall be determined by the law of the testator's domicile. Cf. In re Annesley, 1 Ch. 692 (1926) (Eng.). This is what Perry Dane calls a "rule of assimilation": it incorporates the terms of foreign law in much the same way that federal copyright law looks to state law to determine who are the "children" entitled to share in renewal rights. See De Sylva v. Ballentine, 351 U.S. 570, 580 (1956).
-
-
-
-
163
-
-
0347820878
-
-
See supra Part I
-
See supra Part I.
-
-
-
-
164
-
-
0345929484
-
-
See Kramer, supra note 116, at 1005
-
See Kramer, supra note 116, at 1005.
-
-
-
-
165
-
-
0345929483
-
-
See, e.g., BRILMAYER, supra note 8, § 2.5-2.6, at 99-119
-
See, e.g., BRILMAYER, supra note 8, § 2.5-2.6, at 99-119.
-
-
-
-
166
-
-
0347820879
-
-
See CURRIE, supra note 148, at 592
-
See CURRIE, supra note 148, at 592.
-
-
-
-
167
-
-
0347190613
-
-
note
-
Brilmayer actually concludes that Currie's interests are objective and hence denies their existence. See BRILMAYER, supra note 8, § 2.5.5, at 115. She does, however, give a quite complete statement of the weaknesses of subjective interests as well. See id. § 2.5.3.
-
-
-
-
168
-
-
0347820880
-
-
See id. § 2.6, at 117-18
-
See id. § 2.6, at 117-18.
-
-
-
-
169
-
-
0347190615
-
-
See id. § 2.5.3, at 104
-
See id. § 2.5.3, at 104.
-
-
-
-
171
-
-
0041354859
-
Unconstitutional Discrimination in the Conflict of Laws: Privileges and Immunities
-
supra note 14
-
Resolving conflicts is hard, and abandoning the personal-jurisdiction-style analysis will force us to confront some new difficulties. Currie similarly found that his approach faced problems that the vested rights theory did not - notably, the issue of discrimination between citizens and noncitizens of a state. His diagnosis was one we should keep in mind: The fact that these problems come immediately into view when conflicts problems are approached in this way does not mean that they are generated by the method. Indeed, their prompt appearance is ground for an inference that they have been present from the beginning, obscured and suppressed by the traditional conflict-of-laws system. CURRIE, Unconstitutional Discrimination in the Conflict of Laws: Privileges and Immunities, in SELECTED ESSAYS, supra note 14, at 445, 448.
-
Selected Essays
, pp. 445
-
-
Currie1
-
172
-
-
0347190616
-
-
note
-
"Indeed, one may now wonder how any juristic construct such as 'right' could have been accepted as fundamental in the explanation of any important aspect of judicial activity," wrote David Cavers. Cavers, supra note 56, at 175-76; see also Juenger, supra note 28, at 435 (vested rights theory is "sheer sophistry").
-
-
-
-
173
-
-
0347820881
-
-
See generally Brilmayer, supra note 71
-
See generally Brilmayer, supra note 71.
-
-
-
-
174
-
-
0346560563
-
-
See Dane, supra note 48, at 1218
-
See Dane, supra note 48, at 1218.
-
-
-
-
175
-
-
0346560565
-
-
See id. at 1245. I will claim that the Constitution requires a neutrality quite similar to Dane's vestedness. See infra Part VI
-
See id. at 1245. I will claim that the Constitution requires a neutrality quite similar to Dane's vestedness. See infra Part VI.
-
-
-
-
176
-
-
0042356657
-
-
supra note 81
-
In particular, I do not mean to be endorsing a "deontological" rather than a "consequentialist" approach to conflicts. Dane and Brilmayer, unlike Kramer, become philosophically self-conscious when they talk of rights. See Dane, supra note 48, at 1218-23; BRILMAYER, supra note 8, § 5.2 (describing modern choice of law theory as instrumentalist); Brilmayer, supra note 71, at 1278 ("There is more at stake than semantics. Choosing to talk in terms of rights rather than policies or interests represents a fundamental jurisprudential commitment which is reflected in the way that concrete problems are resolved."). The suggestion that the language of rights implies a deontological rather than consequentialist theory of law is, however, overstated. Michael Green, for example, has shown that a realist approach (policy analysis) is in fact compatible with deontological principles. See Green, supra note 12, at 968-86. A more obvious objection is that the "instrumental" goal that judges seek to maximize might be vindication of parties' preexisting rights in general. More seriously, Brilmayer begs the question by assuming that whether application of a law will achieve its purpose is a different question from whether its application will vindicate preexisting rights. See BRILMAYER, supra note 8, § 5.2, at 225; see also Dane, supra note 48, at 1243-44 (suggesting that only the "Decision-Based" view of law would propose that courts, in adjudicating disputes, are "primarily charged" with advancing the policies of their states). As Larry Kramer sensibly suggests, these are basically the same question: if allowing a party to appeal to a particular law will not effectuate the law's purpose, it is quite likely that the law does not give that party any rights. See Kramer, Myth, supra note 81, at 1064; Kramer, Rethinking Choice of Law, supra note 81, at 291-303. Indeed, this is conventional statutory interpretation, see Kramer, Rethinking Choice of Law, supra note 81, at 291-303, employing standard reference to the intent and purpose of the drafters, see, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248-59 (1991). Conversely, references to parties' rights need not suggest a deontological morality at work. The language of rights may be used simply because determinate rules (which is what rights talk leads to) maximize utility. That is, rights talk might just be rule-utilitarianism. Legal scholars are bafflingly blind to the existence of this approach and tend to think that any invocation of a rule is deontological. The blindness is the more surprising because the law and economics movement has devoted much ingenuity and more ink to showing that particular allocations of rights are or are not efficient, i.e., utility-maximizing according to the willingness-to-pay metric. See generally RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 12- 17 (1998). Brilmayer does at least mention rule-utilitarianism. See Brilmayer, supra note 71, at 1291 n.53. Perry Dane suggests that commitment to the rule of law implies a commitment to the idea that a norm has an importance as "a goal in and of itself," and that vindicating that norm at a cost to its underlying purpose has "a special nobility." Dane, supra note 48, at 1219. But rule-utilitarianism
-
Myth
, pp. 1064
-
-
Kramer1
-
177
-
-
0041354917
-
-
supra note 81
-
In particular, I do not mean to be endorsing a "deontological" rather than a "consequentialist" approach to conflicts. Dane and Brilmayer, unlike Kramer, become philosophically self-conscious when they talk of rights. See Dane, supra note 48, at 1218-23; BRILMAYER, supra note 8, § 5.2 (describing modern choice of law theory as instrumentalist); Brilmayer, supra note 71, at 1278 ("There is more at stake than semantics. Choosing to talk in terms of rights rather than policies or interests represents a fundamental jurisprudential commitment which is reflected in the way that concrete problems are resolved."). The suggestion that the language of rights implies a deontological rather than consequentialist theory of law is, however, overstated. Michael Green, for example, has shown that a realist approach (policy analysis) is in fact compatible with deontological principles. See Green, supra note 12, at 968-86. A more obvious objection is that the "instrumental" goal that judges seek to maximize might be vindication of parties' preexisting rights in general. More seriously, Brilmayer begs the question by assuming that whether application of a law will achieve its purpose is a different question from whether its application will vindicate preexisting rights. See BRILMAYER, supra note 8, § 5.2, at 225; see also Dane, supra note 48, at 1243-44 (suggesting that only the "Decision-Based" view of law would propose that courts, in adjudicating disputes, are "primarily charged" with advancing the policies of their states). As Larry Kramer sensibly suggests, these are basically the same question: if allowing a party to appeal to a particular law will not effectuate the law's purpose, it is quite likely that the law does not give that party any rights. See Kramer, Myth, supra note 81, at 1064; Kramer, Rethinking Choice of Law, supra note 81, at 291-303. Indeed, this is conventional statutory interpretation, see Kramer, Rethinking Choice of Law, supra note 81, at 291-303, employing standard reference to the intent and purpose of the drafters, see, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248-59 (1991). Conversely, references to parties' rights need not suggest a deontological morality at work. The language of rights may be used simply because determinate rules (which is what rights talk leads to) maximize utility. That is, rights talk might just be rule-utilitarianism. Legal scholars are bafflingly blind to the existence of this approach and tend to think that any invocation of a rule is deontological. The blindness is the more surprising because the law and economics movement has devoted much ingenuity and more ink to showing that particular allocations of rights are or are not efficient, i.e., utility-maximizing according to the willingness-to-pay metric. See generally RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 12- 17 (1998). Brilmayer does at least mention rule-utilitarianism. See Brilmayer, supra note 71, at 1291 n.53. Perry Dane suggests that commitment to the rule of law implies a commitment to the idea that a norm has an importance as "a goal in and of itself," and that vindicating that norm at a cost to its underlying purpose has "a special nobility." Dane, supra note 48, at 1219. But rule-utilitarianism surely is not committed to that proposition; rule-utilitarians may simply believe that rules are more efficient in general even if their fit is not perfect.
-
Rethinking Choice of Law
, pp. 291-303
-
-
Kramer1
-
178
-
-
0041354917
-
-
supra note 81
-
In particular, I do not mean to be endorsing a "deontological" rather than a "consequentialist" approach to conflicts. Dane and Brilmayer, unlike Kramer, become philosophically self-conscious when they talk of rights. See Dane, supra note 48, at 1218-23; BRILMAYER, supra note 8, § 5.2 (describing modern choice of law theory as instrumentalist); Brilmayer, supra note 71, at 1278 ("There is more at stake than semantics. Choosing to talk in terms of rights rather than policies or interests represents a fundamental jurisprudential commitment which is reflected in the way that concrete problems are resolved."). The suggestion that the language of rights implies a deontological rather than consequentialist theory of law is, however, overstated. Michael Green, for example, has shown that a realist approach (policy analysis) is in fact compatible with deontological principles. See Green, supra note 12, at 968-86. A more obvious objection is that the "instrumental" goal that judges seek to maximize might be vindication of parties' preexisting rights in general. More seriously, Brilmayer begs the question by assuming that whether application of a law will achieve its purpose is a different question from whether its application will vindicate preexisting rights. See BRILMAYER, supra note 8, § 5.2, at 225; see also Dane, supra note 48, at 1243-44 (suggesting that only the "Decision-Based" view of law would propose that courts, in adjudicating disputes, are "primarily charged" with advancing the policies of their states). As Larry Kramer sensibly suggests, these are basically the same question: if allowing a party to appeal to a particular law will not effectuate the law's purpose, it is quite likely that the law does not give that party any rights. See Kramer, Myth, supra note 81, at 1064; Kramer, Rethinking Choice of Law, supra note 81, at 291-303. Indeed, this is conventional statutory interpretation, see Kramer, Rethinking Choice of Law, supra note 81, at 291-303, employing standard reference to the intent and purpose of the drafters, see, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248-59 (1991). Conversely, references to parties' rights need not suggest a deontological morality at work. The language of rights may be used simply because determinate rules (which is what rights talk leads to) maximize utility. That is, rights talk might just be rule-utilitarianism. Legal scholars are bafflingly blind to the existence of this approach and tend to think that any invocation of a rule is deontological. The blindness is the more surprising because the law and economics movement has devoted much ingenuity and more ink to showing that particular allocations of rights are or are not efficient, i.e., utility-maximizing according to the willingness-to-pay metric. See generally RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 12- 17 (1998). Brilmayer does at least mention rule-utilitarianism. See Brilmayer, supra note 71, at 1291 n.53. Perry Dane suggests that commitment to the rule of law implies a commitment to the idea that a norm has an importance as "a goal in and of itself," and that vindicating that norm at a cost to its underlying purpose has "a special nobility." Dane, supra note 48, at 1219. But rule-utilitarianism surely is not committed to that proposition; rule-utilitarians may simply believe that rules are more efficient in general even if their fit is not perfect.
-
Rethinking Choice of Law
, pp. 291-303
-
-
Kramer1
-
179
-
-
0003774434
-
-
In particular, I do not mean to be endorsing a "deontological" rather than a "consequentialist" approach to conflicts. Dane and Brilmayer, unlike Kramer, become philosophically self-conscious when they talk of rights. See Dane, supra note 48, at 1218-23; BRILMAYER, supra note 8, § 5.2 (describing modern choice of law theory as instrumentalist); Brilmayer, supra note 71, at 1278 ("There is more at stake than semantics. Choosing to talk in terms of rights rather than policies or interests represents a fundamental jurisprudential commitment which is reflected in the way that concrete problems are resolved."). The suggestion that the language of rights implies a deontological rather than consequentialist theory of law is, however, overstated. Michael Green, for example, has shown that a realist approach (policy analysis) is in fact compatible with deontological principles. See Green, supra note 12, at 968-86. A more obvious objection is that the "instrumental" goal that judges seek to maximize might be vindication of parties' preexisting rights in general. More seriously, Brilmayer begs the question by assuming that whether application of a law will achieve its purpose is a different question from whether its application will vindicate preexisting rights. See BRILMAYER, supra note 8, § 5.2, at 225; see also Dane, supra note 48, at 1243-44 (suggesting that only the "Decision-Based" view of law would propose that courts, in adjudicating disputes, are "primarily charged" with advancing the policies of their states). As Larry Kramer sensibly suggests, these are basically the same question: if allowing a party to appeal to a particular law will not effectuate the law's purpose, it is quite likely that the law does not give that party any rights. See Kramer, Myth, supra note 81, at 1064; Kramer, Rethinking Choice of Law, supra note 81, at 291-303. Indeed, this is conventional statutory interpretation, see Kramer, Rethinking Choice of Law, supra note 81, at 291-303, employing standard reference to the intent and purpose of the drafters, see, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248-59 (1991). Conversely, references to parties' rights need not suggest a deontological morality at work. The language of rights may be used simply because determinate rules (which is what rights talk leads to) maximize utility. That is, rights talk might just be rule-utilitarianism. Legal scholars are bafflingly blind to the existence of this approach and tend to think that any invocation of a rule is deontological. The blindness is the more surprising because the law and economics movement has devoted much ingenuity and more ink to showing that particular allocations of rights are or are not efficient, i.e., utility-maximizing according to the willingness-to-pay metric. See generally RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 12-17 (1998). Brilmayer does at least mention rule-utilitarianism. See Brilmayer, supra note 71, at 1291 n.53. Perry Dane suggests that commitment to the rule of law implies a commitment to the idea that a norm has an importance as "a goal in and of itself," and that vindicating that norm at a cost to its underlying purpose has "a special nobility." Dane, supra note 48, at 1219. But rule-utilitarianism surely is not committed to that proposition; rule-utilitarians may simply believe that rules are more efficient in general even if their fit is not perfect.
-
(1998)
Economic Analysis of Law
, pp. 12-17
-
-
Posner, R.1
-
180
-
-
0042356657
-
-
supra note 81
-
Larry Kramer starts from a very similar picture of civil society. See Kramer, Myth, supra note 81, at 1052.
-
Myth
, pp. 1052
-
-
Kramer1
-
181
-
-
0347190576
-
-
note
-
There is no need, for my purposes, to suppose that these rights vest at the time of any particular action. A state tort law will give certain people a right to recover damages if they make the required showing. Whether a tort has been committed will obviously have a bearing on whether or not the showing can be made, but it need not affect our characterization of the right. Beale, on the other hand, did need to identify a unique moment of vesting. The territorial principle could not operate without a method of determining in which state the rights vest, and without the last act doctrine, Beale would have been forced to confront conflicting rights. But my point is exactly that these conflicts exist, and that an analysis that hides them does us no favors.
-
-
-
-
182
-
-
0346560519
-
-
note
-
With judgments, they typically do; a judgment obtained in one state confers rights enforceable in any state. See, e.g., Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367 (1996). There is nothing analytically special about judgments; they are simply one instance of state-created rights. The difference between rights based on judgments and those based can legislation or common law is that there will seldom, if ever, be a right the defendant can assert against enforcement of the judgment. States have not adopted laws giving their citizens rights against foreign judgments. Indeed, Congress has specified that they may not, see Full Faith and Credit Act, 28 U.S.C. § 1738 (1994), and the Full Faith and Credit Clause prevents them from doing so of its own force, see, e.g., Hughes v. Fetter, 341 U.S. 609, 611 n.4 (1951). In consequence, cases in which a party asserts a right derived from a judgment tend not to feature conflicting rights, and a scope-based analysis will suffice.
-
-
-
-
183
-
-
0002953848
-
Some Fundamental Legal Conceptions as Applied in Judicial Reasoning
-
See generally Wesley Newcombe Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16 (1913). To say that one has a right to engage in certain conduct means (roughly) that the conduct cannot form the basis for recovery or sanctions; to stay that one does not have a right means the conduct may. (This is only roughly true because in some cases the exercise of constitutional rights may allow recovery of damages. For example, breaching a personal services contract is constitutionally protected in that a state may not use its criminal law to compel performance. See Bailey v. Alabama, 219 U.S. 219, 238-44 (1911). But the breaching party will still be liable in contract.)
-
(1913)
Yale L.J.
, vol.23
, pp. 16
-
-
Hohfeld, W.N.1
-
184
-
-
0347820846
-
-
See infra section IV.C
-
See infra section IV.C.
-
-
-
-
185
-
-
0347820833
-
-
Cf. Laycock, supra note 73, at 259
-
Cf. Laycock, supra note 73, at 259.
-
-
-
-
186
-
-
0347820832
-
-
note
-
I will claim that although the determination of the prevailing right lies within the legitimate authority of the states, the Constitution sets out parameters within which state conflicts rules must be drawn. See infra Part VI.
-
-
-
-
187
-
-
0041354917
-
-
supra note 81
-
With regard to this point - that what happens in a conflicts case is that the plaintiff files a complaint alleging violation of some right and the court assesses its sufficiency - I am in complete agreement with Kramer. See Kramer, Rethinking Choice of Law, supra note 81, at 282.
-
Rethinking Choice of Law
, pp. 282
-
-
Kramer1
-
188
-
-
0347190577
-
-
note
-
Kramer characterizes this question as whether the law gives a prima facie right, presumably to indicate that prima facie rights may not be enforceable. As discussed supra note 99, I think we may speak simply of rights. But of course nothing turns on the terminology.
-
-
-
-
189
-
-
0347190575
-
-
note
-
Or possibly federal law. I consider state-federal conflicts in infra section IV.B.
-
-
-
-
190
-
-
0345929489
-
On the Displacement of the Law of the Forum
-
supra note 14
-
A distinction is often drawn between "conduct-regulating" and "loss-allocating" rules See, e.g., Schultz v. Boy Scouts of Am., Inc., 480 N.E.2d 679 (N.Y. 1985). Currie draws a similar line between "rules of conduct" and "rules of decision." See CURRIE, On the Displacement of the Law of the Forum, in SELECTED ESSAYS, supra note 14, at 3, 68-69. I avoid the terminology because I doubt the distinction is tenable as a general matter. Charitable immunity, which Schultz treats as loss-allocating, will surely have some effect on how careful charities are; immunities obviously eliminate the deterrent effects of liability. Still, rules are directed at particular objects, though they may have broader effects. The question at this point is simply which parties and transactions a legislature intends its law to cover. An abatement rule will lift liability only from the dead, and death is generally an unimprovable deterrent. Thus its effect on primary conduct should be minimal, and its applicability presumptively domiciliary-focused.
-
Selected Essays
, pp. 3
-
-
Currie1
-
191
-
-
0346560515
-
-
note
-
It may be, of course, that New York cannot withhold from the defendant defenses made available to its own domiciliaries. See infra section VI.B.2.
-
-
-
-
192
-
-
0347190569
-
-
note
-
This assertion may seem so obvious as to be unnecessary. The question is resolved by the court, and courts resolve legal questions. But in making this claim I am neither flogging the choir nor preaching to a dead horse. Currie's interest analysis seems to suppose that it is not a legal question. See, e.g., CURRIE, supra note 22, at 182.
-
-
-
-
193
-
-
0345929437
-
-
note
-
If the court actually decides that one law governs (to the exclusion of the other), it has likely awarded victory to a cluster of rights. This is an unfortunate consequence of the choice-of-law vocabulary. There is little reason to suppose that an intelligent conflicts rule would treat bodies of law as indivisible units. It might make good sense to look to the law of the place of a car accident for rules of the road but to another law for other purposes. In fact, current approaches to conflicts, while claiming to select "the applicable law," do not pick a law that governs in this sense. See infra section IV.C.
-
-
-
-
194
-
-
0041354917
-
-
supra note 81
-
The notable exception here is Larry Kramer, who argues that domestic cases and multistate cases raise similar "choice-of-law" issues. See Kramer, Rethinking Choice of Law, supra note 81, at 283.
-
Rethinking Choice of Law
, pp. 283
-
-
Kramer1
-
195
-
-
0347190568
-
-
note
-
In purely domestic cases, courts must also perform a scope analysis to determine if the law at issue grants the parties rights. See CURRIE, supra note 22, at 184. That is not very surprising, since scope analysis is just statutory interpretation. The presence of scope analysis in domestic cases might suggest that there are some similarities between conflicts cases and domestic cases - after all, Beale's theory had nothing more than rules of scope. It might also suggest the correctness of the initial scope analysis in conflicts cases. More significant for present purposes is the fact that courts actually employ conflicts rules in domestic cases. They do so rarely, because the detection of a conflict is frequently taken as an indication that the scope analysis has gone wrong - courts presume that legislatures do not intend to create conflicting rights. But the conflicts rules are there if we look for them.
-
-
-
-
196
-
-
0345929436
-
-
note
-
Currie also noted the presence of scope analysis in retroactivity jurisprudence. See id. Again, my point is slightly different: courts also perform conflicts analysis.
-
-
-
-
197
-
-
0347190489
-
-
James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 535 (1991)
-
James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 535 (1991).
-
-
-
-
198
-
-
0347190478
-
A Little Theory is a Dangerous Thing: The Myth of Adjudicative Retroactivity
-
The issue of the retroactive effect of a judicial decision, rather than a new statute, is quite murky. Oddly, the analysis now favored by the Court resembles Joseph Beale's vested rights theory: it hides conflicts between early and later law via the premise that only the law in effect at the time of the parties' actions can confer rights. See Kermit Roosevelt III, A Little Theory is a Dangerous Thing: The Myth of Adjudicative Retroactivity, 31 CONN. L. REV. 1075, 1080 (1999). This is not an encouraging sign, and I have argued that current retroactivity jurisprudence is the unfortunate legacy of an earlier mistake. See id. at 1087-91. Matters would be much clearer if the Court simply confronted the existence of conflict and adopted, as a conflicts rule, the principle that later rights prevail over earlier rights, as it has done in the statutory context.
-
(1999)
Conn. L. Rev.
, vol.31
, pp. 1075
-
-
Roosevelt K. III1
-
199
-
-
0346560429
-
-
See, e.g., Landgraf v. U.S.I. Film Prods., 511 U.S. 244 (1994) (engaging in comprehensive interpretation of the Civil Rights Act § 102 to determine whether plaintiff, who argued for retroactive application, had a cause of action)
-
See, e.g., Landgraf v. U.S.I. Film Prods., 511 U.S. 244 (1994) (engaging in comprehensive interpretation of the Civil Rights Act § 102 to determine whether plaintiff, who argued for retroactive application, had a cause of action).
-
-
-
-
200
-
-
0346560430
-
-
See Landgraf, 511 U.S. at 280
-
See Landgraf, 511 U.S. at 280.
-
-
-
-
201
-
-
0347820827
-
-
note
-
Legislatures do, of course, choose whether their statutes apply retroactively or not, but that is a matter of choosing the scope of the rights.
-
-
-
-
202
-
-
0347190563
-
-
See generally, e.g., Bott v. DeLand, 922 P.2d 732 (Utah 1996) (discussing Utah Governmental Immunity Act)
-
See generally, e.g., Bott v. DeLand, 922 P.2d 732 (Utah 1996) (discussing Utah Governmental Immunity Act).
-
-
-
-
203
-
-
0347190484
-
-
note
-
This does not mean that it could not be described as a choice of law - though, as section IV.C shows, it cannot be described as a choice of which law applies. But the fact that in the domestic context there is no temptation to do so should suggest that something odd is going on in the realm of conflicts. My technique for revealing that oddity is basically to redescribe conflicts cases from the conventional legal perspective. I will argue that from this perspective, conventional conflicts analysis is fatally flawed, and that conflicts cases are described as involving choice precisely in order to mask these flaws. See infra section IV.C.
-
-
-
-
205
-
-
0345929346
-
-
See id.
-
See id.
-
-
-
-
206
-
-
0345929439
-
-
note
-
It is more accurate because, among other things, it makes clear that a court might enforce rights created by more than one state, rather than determining that one state's law "applies" to the entire case. Because conflicts theory historically tried to determine which law governs, this possibility appears anomalous and receives the appropriately exotic name of "dépeçage." See, e.g., SCOLES & HAY, supra note 7, at 38. More significantly, thinking in terms of conflicts focuses attention on the conflicts rule that determines which right prevails. Interest analysis relies on the choice-of-law vocabulary precisely to deflect attention from its conflicts rules.
-
-
-
-
207
-
-
0346560510
-
-
note
-
For a description of this situation we might turn again to Beale, who in the conflict between law and equity had to confront a situation in which - much as the current situation under interest analysis - two courts disagreed about which right prevailed. [In common law jurisdictions] the theory upon which courts proceed is the theory of separate and independent systems of right. The court of law regards the equitable right as subordinate to the legal right, while the court of equity takes the opposite view. . . . It is clear, however, that there cannot be two separate and distinct laws prevailing in the same place at the same time; and therefore in fact, whatever may be the theory of the courts, one of the conflicting rights must be valid and the other invalid. 1 BEALE, supra note 6, § 4.8, at 41. I do not quote this passage for the correctness of its conclusion. In a conflict between rights of co-equal sovereigns such as sister states, I see no reason why there should be what philosophers call a "fact of the matter" about which right "really" prevails. The Constitution does not resolve conflicts of its own force, and, absent federal legislation, there is no other superior authority to make the decision. The point is rather that Beale correctly sees not a choice between laws but a conflict between rights requiring the subordination of one to the other.
-
-
-
-
208
-
-
0346560439
-
-
See, e.g., Munn v. Illinois, 94 U.S. 113, 134 (1876) (rejecting the idea of vested rights in common law rules); see also Landgraf v. U.S.I. Film Prods., 511 U.S. 244, 271 n.25 (1994) (collecting cases discussing retroactive alteration of property and contract rights)
-
See, e.g., Munn v. Illinois, 94 U.S. 113, 134 (1876) (rejecting the idea of vested rights in common law rules); see also Landgraf v. U.S.I. Film Prods., 511 U.S. 244, 271 n.25 (1994) (collecting cases discussing retroactive alteration of property and contract rights).
-
-
-
-
209
-
-
0345929438
-
-
note
-
That federal law defeats contradictory state law follows directly from the Supremacy Clause of Article VI, which provides that the Constitution and federal laws "shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. CONST, art. VI.
-
-
-
-
210
-
-
0345929352
-
-
note
-
By "state-federal conflicts" I mean preemption of state law by federal law. Neither Brilmayer's treatise nor the Scoles and Hay hornbook discusses preemption as a choice-of-law issue - presumably for the reason that there is no choice. They do discuss state attempts to withdraw jurisdiction for federal causes of action, which I see as a somewhat more refined attempt to subordinate federal rights.
-
-
-
-
211
-
-
0347190500
-
-
note
-
It might of course be suggested that there is no issue of choice because federal law is literally local law everywhere. See, e.g., Claflin v. Houseman, 93 U.S. 130, 137 (1876). Beale took this tack: There cannot be two independent laws within a territory, even though that territory be subject to the legislative jurisdiction of two independent sovereigns. The law of the territory, resulting from the legislative action of both sovereigns, is a single law. The law of a single legal unit must be one law, the one and undivided law of that territory. 1 BEALE, supra note 6, § 2.4, at 17-18. This seems more like definition than argument, however, and of course there are obvious senses in which federal law is not local law. Most patently, it cannot be changed by the will of the state legislature. Equally significant, successive prosecutions under state and federal law are not barred by the Double Jeopardy Clause precisely because the laws emanate from different sovereigns. See, e.g., Bartkus v. Illinois, 359 U.S. 121, 121-24 (1959). At any rate, I have already suggested that purely domestic cases may present conflicts.
-
-
-
-
212
-
-
0347820756
-
-
See supra section III.C
-
See supra section III.C.
-
-
-
-
213
-
-
0346560502
-
-
507 U.S. 658 (1993)
-
507 U.S. 658 (1993).
-
-
-
-
214
-
-
0347820816
-
-
See CSX Transportation, 507 U.S. at 666
-
See CSX Transportation, 507 U.S. at 666.
-
-
-
-
215
-
-
0346560503
-
-
See CSX Transportation, 507 U.S. at 665
-
See CSX Transportation, 507 U.S. at 665.
-
-
-
-
216
-
-
0346560507
-
-
See CSX Transportation, 507 U.S. at 664
-
See CSX Transportation, 507 U.S. at 664.
-
-
-
-
217
-
-
0345929351
-
-
See CSX Transportation, 507 U.S. at 662 n.2 (quoting 45 U.S.C. § 434 (1970))
-
See CSX Transportation, 507 U.S. at 662 n.2 (quoting 45 U.S.C. § 434 (1970)).
-
-
-
-
218
-
-
0347190559
-
-
See CSX Transportation, 507 U.S. at 673, 676
-
See CSX Transportation, 507 U.S. at 673, 676.
-
-
-
-
219
-
-
0346560501
-
-
note
-
This is not entirely true; it might have been possible for the plaintiff to bring a state-law claim based on failure to comply with a (federal) statutory speed limit. See CSX Transportation, 507 U.S. at 677 (Thomas, J., concurring and dissenting). Her complaint conceded, though, that the federal speed limit had not been exceeded. See CSX Transportation, 507 U.S. at 672.
-
-
-
-
221
-
-
0347820759
-
-
note
-
For example, the National Highway Safety Act allows states to enforce laws whose safety standards are identical to the corresponding federal standard. See 49 U.S.C. § 30103(b)(2) (1994). It also preserves all claims at common law. See Freightliner Corp. v. Myrick, 514 U.S. 280, 284 (1995).
-
-
-
-
222
-
-
0347190560
-
-
note
-
Title VII expressly preserves state laws that do not conflict. See 42 U.S.C. § 2000e(7) (1994); Shaw v. Delta Air Lines, 463 U.S. 85, 101 (1983).
-
-
-
-
223
-
-
0347190555
-
-
See Myrick, 514 U.S. at 287. For this reason, I think that "preemption" is a somewhat unfortunate term. What happens is simply that federal rights defeat state rights
-
See Myrick, 514 U.S. at 287. For this reason, I think that "preemption" is a somewhat unfortunate term. What happens is simply that federal rights defeat state rights.
-
-
-
-
224
-
-
0346560506
-
-
note
-
In such a case, the law's denial of the cause of action should be seen as granting parties a right to engage in the conduct at issue.
-
-
-
-
225
-
-
0347820813
-
-
See Hamm v. City of Rock Hill, 379 U.S. 306, 309-11 (1964) (describing availability of federal defenses to prosecutions for attempts to obtain service in places of public accommodation)
-
See Hamm v. City of Rock Hill, 379 U.S. 306, 309-11 (1964) (describing availability of federal defenses to prosecutions for attempts to obtain service in places of public accommodation).
-
-
-
-
226
-
-
0346560505
-
-
223 U.S. 1 (1912)
-
223 U.S. 1 (1912).
-
-
-
-
227
-
-
0347820815
-
-
See Mondou, 223 U.S. at 55-56
-
See Mondou, 223 U.S. at 55-56.
-
-
-
-
228
-
-
0346508549
-
Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception
-
See, e.g., Mertz v. Mertz, 3 N.E.2d 597 (N.Y. 1936) (rejecting interspousal tort claim). Oddly, the invocation of the public policy exception does not seem to correlate with the repugnance of the foreign law - the New York Court of Appeals used it to reject the Connecticut law of interspousal tort liability but accepted Hitler's Nuremberg laws. See Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 YALE L.J. 1965, 1975 (1997); see also Monrad G. Paulsen & Michael I. Sovern, "Public Policy" in the Conflict of Laws, 56 COLUM. L. REV. 969, 980-81 (1956).
-
(1997)
Yale L.J.
, vol.106
, pp. 1965
-
-
Kramer, L.1
-
229
-
-
0346508549
-
"Public Policy" in the Conflict of Laws
-
See, e.g., Mertz v. Mertz, 3 N.E.2d 597 (N.Y. 1936) (rejecting interspousal tort claim). Oddly, the invocation of the public policy exception does not seem to correlate with the repugnance of the foreign law - the New York Court of Appeals used it to reject the Connecticut law of interspousal tort liability but accepted Hitler's Nuremberg laws. See Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 YALE L.J. 1965, 1975 (1997); see also Monrad G. Paulsen & Michael I. Sovern, "Public Policy" in the Conflict of Laws, 56 COLUM. L. REV. 969, 980-81 (1956).
-
(1956)
Colum. L. Rev.
, vol.56
, pp. 969
-
-
Paulsen, M.G.1
Sovern, M.I.2
-
230
-
-
0346560451
-
-
See, e.g., CURRIE, supra note 22, at 181-82; SCOLES & HAY, supra note 7, at 2
-
See, e.g., CURRIE, supra note 22, at 181-82; SCOLES & HAY, supra note 7, at 2.
-
-
-
-
231
-
-
0347820814
-
-
See Mondou, 223 U.S. at 57-58
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See Mondou, 223 U.S. at 57-58.
-
-
-
-
232
-
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0345929401
-
-
See, e.g., Testa v. Katt, 330 U.S. 386 (1947) (rejecting the argument that the federal statute was "penal"). Early cases such as Mondou and Testa do, interestingly, stay within the choice-of-law paradigm. Mondou holds not that public policy must yield to the Supremacy Clause but rather that because federal policy is local policy everywhere, there is no contrary local policy. See Mondou, 223 U.S. at 57. Testa similarly relies on the argument that, while the federal statute might be penal, it is a local penal statute. See Testa, 330 U.S. at 392-94. More recently, the Court has also considered such cases from the conflicts perspective, noting that state law must yield to federal rights. See Howlett v. Rose, 496 U.S. 356, 375-81 (1990)
-
See, e.g., Testa v. Katt, 330 U.S. 386 (1947) (rejecting the argument that the federal statute was "penal"). Early cases such as Mondou and Testa do, interestingly, stay within the choice-of-law paradigm. Mondou holds not that public policy must yield to the Supremacy Clause but rather that because federal policy is local policy everywhere, there is no contrary local policy. See Mondou, 223 U.S. at 57. Testa similarly relies on the argument that, while the federal statute might be penal, it is a local penal statute. See Testa, 330 U.S. at 392-94. More recently, the Court has also considered such cases from the conflicts perspective, noting that state law must yield to federal rights. See Howlett v. Rose, 496 U.S. 356, 375-81 (1990).
-
-
-
-
233
-
-
0347820758
-
-
note
-
In fact, Currie suggested that while a state would apply its "rules of decision" to an accident between two domiciliaries, it would determine negligence by looking to the "rules of conduct" (such as speed limits) of the place of the accident. See CURRIE, supra note 177, at 68-69.
-
-
-
-
234
-
-
0347125867
-
-
cmt. d
-
The Second Restatement, to its credit, explicitly contemplates dépeçage; it advocates a choice of law calculus for each issue in a case. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145, cmt. d (1971).
-
(1971)
Restatement (Second) of Conflict of Laws § 145
-
-
-
235
-
-
0347190506
-
-
note
-
This example is analytically similar to the married women's contracts case discussed by Currie; I have tinkered with it a bit in order to generate a counterclaim arising from the same transaction. For Currie's similar conclusions, see CURRIE, supra note 102, at 90-91 (finding that a court in a state with married women's disability should apply local law to a claim by foreign creditor against domestic married woman but should apply foreign law to a claim by domestic creditor against foreign married woman).
-
-
-
-
236
-
-
0347190558
-
-
note
-
The example works with regard to interest analysis, but it should be clear that similar examples can be generated for any conflicts theory that is not jurisdiction-selecting.
-
-
-
-
237
-
-
0042356657
-
-
supra note 81
-
Cf. Kramer, Myth, supra note 81, at 1054-55.
-
Myth
, pp. 1054-1055
-
-
Kramer1
-
238
-
-
0345929423
-
-
note
-
In fact, Kramer finds that selectively granting rights to forum domiciliaries but not others will sometimes violate the Privileges and Immunities Clause. See id. at 1065-74.
-
-
-
-
239
-
-
0345929425
-
-
See Laycock, supra note 73, at 276
-
See Laycock, supra note 73, at 276.
-
-
-
-
240
-
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0346560498
-
-
See CURRIE, supra note 76, at 141
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See CURRIE, supra note 76, at 141.
-
-
-
-
241
-
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0004275417
-
-
A common law judge evaluating precedents with no knowledge of interest analysis might well think that a decision in favor of local rights in Al v. George compelled a decision favoring foreign rights in Lou v. Al. If there is such a thing as the nature of law, it might be encapsulated in Cardozo's adage: "It will not do to decide the same question one way between one set of litigants and the opposite way between another. . . . If a case was decided against me yesterday when I was defendant, I shall look for the same judgment today if I am plaintiff." BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 33-34 (1921). From the classic common law perspective, interest analysis hardly appears a legal theory at all.
-
(1921)
The Nature of the Judicial Process
, pp. 33-34
-
-
Cardozo, B.N.1
-
242
-
-
0345929424
-
-
CURRIE, supra note 22, at 181-82
-
CURRIE, supra note 22, at 181-82.
-
-
-
-
243
-
-
0346560455
-
-
See, e.g., Ely, supra note 73; Laycock, supra note 73
-
See, e.g., Ely, supra note 73; Laycock, supra note 73.
-
-
-
-
244
-
-
0347190499
-
-
U.S. CONST, art. IV, §§ 1-2. Additionally, I will make some fleeting references to Due Process. The Commerce Clause is also important, but not for present purposes
-
U.S. CONST, art. IV, §§ 1-2. Additionally, I will make some fleeting references to Due Process. The Commerce Clause is also important, but not for present purposes.
-
-
-
-
245
-
-
0345929422
-
-
See the sparse discussion in SCOLES & HAY, supra note 7, at 104-07
-
See the sparse discussion in SCOLES & HAY, supra note 7, at 104-07.
-
-
-
-
246
-
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0347301058
-
Full Faith and Credit: The Lawyer's Clause of the Constitution
-
See Robert H. Jackson, Full Faith and Credit: The Lawyer's Clause of the Constitution, 45 COLUM. L. REV. 1, 28 (1945) ("How to determine when [federal considerations] require the law of the forum to give way to the law of another state seems to me an unsettled question. . . . The ultimate answer, it seems to me, will have to be based on considerations of state relations to each other and to the federal system.").
-
(1945)
Colum. L. Rev.
, vol.45
, pp. 1
-
-
Jackson, R.H.1
-
247
-
-
0345929347
-
Why We Should Worry about Full Faith and Credit to Laws
-
Most notably Douglas Laycock, see Laycock, supra note 73, on whose historical arguments this section relies quite heavily. See also Ely, supra note 73; Jackson, supra note 232; Katzenbach, supra note 11; James R. Pielemeier, Why We Should Worry About Full Faith and Credit to Laws, 60 S. CAL. L. REV. 1299 (1987).
-
(1987)
S. Cal. L. Rev.
, vol.60
, pp. 1299
-
-
Pielemeier, J.R.1
-
248
-
-
0347820747
-
-
See, e.g., Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439 (1943) (stating that the Full Faith and Credit Clause "altered the status of the several states as independent foreign sovereignties, each free to ignore rights and obligations created under the laws or established by the judicial proceedings of the others, by making each an integral part of a single nation")
-
See, e.g., Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439 (1943) (stating that the Full Faith and Credit Clause "altered the status of the several states as independent foreign sovereignties, each free to ignore rights and obligations created under the laws or established by the judicial proceedings of the others, by making each an integral part of a single nation").
-
-
-
-
249
-
-
0347820760
-
-
See U.S. CONST, art. I, § 10
-
See U.S. CONST, art. I, § 10.
-
-
-
-
250
-
-
0346560454
-
-
Laycock, supra note 73, at 259; see also Jackson, supra note 232, at 30
-
Laycock, supra note 73, at 259; see also Jackson, supra note 232, at 30.
-
-
-
-
251
-
-
0345929416
-
-
See, e.g., Printz v. United States, 521 U.S. 898, 918-22 (1997); Sun Oil Co. v. Wortman 486 U.S. 717, 727-28 (1988) ("If we abandon the currently applied, traditional notions of [legitimate state legislative jurisdiction] we would embark upon the enterprise of constitutionalizing choice-of-law rules, with no compass to guide us beyond our own perceptions of what seems desirable.")
-
See, e.g., Printz v. United States, 521 U.S. 898, 918-22 (1997); Sun Oil Co. v. Wortman 486 U.S. 717, 727-28 (1988) ("If we abandon the currently applied, traditional notions of [legitimate state legislative jurisdiction] we would embark upon the enterprise of constitutionalizing choice-of-law rules, with no compass to guide us beyond our own perceptions of what seems desirable.").
-
-
-
-
252
-
-
0347190551
-
-
See, e.g., Allgeyer v. Louisiana, 165 U.S. 578, 587-90 (1897); Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1877); Green v. Van Buskirk, 72 U.S. (5 Wall.) 307, 313-14 (1866); see also Pielemeier, supra note 233, at 1303-04
-
See, e.g., Allgeyer v. Louisiana, 165 U.S. 578, 587-90 (1897); Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1877); Green v. Van Buskirk, 72 U.S. (5 Wall.) 307, 313-14 (1866); see also Pielemeier, supra note 233, at 1303-04.
-
-
-
-
253
-
-
0346560497
-
-
See, e.g., Alaska Packers Assn. v. Industrial Accident Commn., 294 U.S. 532, 547-58 (1935)
-
See, e.g., Alaska Packers Assn. v. Industrial Accident Commn., 294 U.S. 532, 547-58 (1935).
-
-
-
-
254
-
-
0346560432
-
-
See Alaska Packers, 294 U.S. at 547-58. I think that at this point the Court was not far wrong. The Alaska Packers Court seemed to suppose that the Full Faith and Credit Clause contained the "rational" rules determining which state's interest was superior. That was a mistake; the setting of priorities is indeed a matter for the states. But this does not mean that the Clause has nothing to say. It requires that a state base its assertion of legislative jurisdiction on a claim that its interests are superior; this is the only way to afford foreign law the appropriate respect while still determining that local rights prevail. It further requires that the interests not be superior merely because another state's interests are weighed less heavily. See infra section VI.B.1
-
See Alaska Packers, 294 U.S. at 547-58. I think that at this point the Court was not far wrong. The Alaska Packers Court seemed to suppose that the Full Faith and Credit Clause contained the "rational" rules determining which state's interest was superior. That was a mistake; the setting of priorities is indeed a matter for the states. But this does not mean that the Clause has nothing to say. It requires that a state base its assertion of legislative jurisdiction on a claim that its interests are superior; this is the only way to afford foreign law the appropriate respect while still determining that local rights prevail. It further requires that the interests not be superior merely because another state's interests are weighed less heavily. See infra section VI.B.1.
-
-
-
-
255
-
-
0346560453
-
-
note
-
Justice Jackson noted, "Nowhere has the Court attempted, although faith and credit opinions have been written by some of its boldest-thinking and clearest-speaking Justices, to define standards by which 'superior state interests' in the subject matter of conflicting statutes are to be weighed." Jackson, supra note 232, at 16. The reluctance to impose particular substantive standards, I will suggest, was entirely correct. Full Faith and Credit does not set out standards by which a court may determine which state's interest is greater; it simply demands that states respect each other's laws. What I try to show here is how the principle of respect for sister-state law translates into restrictions on state conflicts rules.
-
-
-
-
256
-
-
0347820761
-
-
Pacific Employers Ins. Co. v. Industrial Accident Commn., 306 U.S. 493, 502 (1939)
-
Pacific Employers Ins. Co. v. Industrial Accident Commn., 306 U.S. 493, 502 (1939).
-
-
-
-
257
-
-
0347190504
-
-
See Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 476 (1947)
-
See Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 476 (1947).
-
-
-
-
258
-
-
0347190503
-
-
449 U.S. 302 (1981)
-
449 U.S. 302 (1981).
-
-
-
-
259
-
-
0347190502
-
-
Allstate, 449 U.S. at 320
-
Allstate, 449 U.S. at 320.
-
-
-
-
260
-
-
0345929366
-
-
See Allstate, 449 U.S. at 319 n.28
-
See Allstate, 449 U.S. at 319 n.28.
-
-
-
-
261
-
-
0347190554
-
-
Allstate, 449 U.S. at 310-11
-
Allstate, 449 U.S. at 310-11.
-
-
-
-
262
-
-
0346560457
-
-
note
-
Allstate requires that a state have "a significant contact or significant aggregation of contacts." Allstate, 449 U.S. at 313. This does mean something; the Court has ruled that a state may not apply its law to suits to which it has no connection. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821-22 (1985).
-
-
-
-
263
-
-
0347190552
-
-
See Allstate, 449 U.S. at 308 n.10. This portion of the opinion was only a plurality, see 449 U.S. at 320-22 (Stevens, J., concurring) (distinguishing between the clauses), but the Court has shown no subsequent inclination to distinguish between Full Faith and Credit and Due Process analyses
-
See Allstate, 449 U.S. at 308 n.10. This portion of the opinion was only a plurality, see 449 U.S. at 320-22 (Stevens, J., concurring) (distinguishing between the clauses), but the Court has shown no subsequent inclination to distinguish between Full Faith and Credit and Due Process analyses.
-
-
-
-
264
-
-
0002055431
-
-
See Laycock, supra note 73, at 296. Laycock is essentially correct to suggest that since "full faith and credit" is what state courts give their own laws, the Clause demands equality of treatment. See 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1304 (1833) (stating that the Framers' intent was to give foreign laws "full faith and credit . . . so that they cannot be denied, any more than in the state, where they originated").
-
(1833)
Commentaries on the Constitution of the United States § 1304
-
-
Story, J.1
-
265
-
-
0345929350
-
-
Clinton Rossiter ed.
-
See THE FEDERALIST No. 80, at 477 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
-
(1961)
The Federalist No. 80
, vol.80
, pp. 477
-
-
Hamilton, A.1
-
266
-
-
0347007326
-
The Historic Basis of Diversity Jurisdiction
-
Laycock, supra note 73, at 278-83; Pielemeier, supra note 233, at 1316-22
-
The Full Faith and Credit and Privileges and Immunities Clauses are the obvious examples. Federal diversity jurisdiction is also targeted at interstate discrimination. See, e.g., id.; Baxter, supra note 92; Henry J. Friendly, The Historic Basis of Diversity Jurisdiction, 41 HARV. L. REV. 483 (1928); Laycock, supra note 73, at 278-83; Pielemeier, supra note 233, at 1316-22.
-
(1928)
Harv. L. Rev.
, vol.41
, pp. 483
-
-
Friendly, H.J.1
-
267
-
-
0041188601
-
-
supra note 251
-
THE FEDERALIST, supra note 251, at 478; see also Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180 (1868) ("[N]o provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this."). Why the Supreme Court's fairly robust Privileges and Immunities Clause jurisprudence, see, e.g., Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985); Austin v. New Hampshire, 420 U.S. 656 (1975), has exerted so little influence on its conflicts jurisprudence is a mystery. In Allstate, for example, a Privileges and Immunities argument could have been made that Minnesota courts would surely not have decided the case the same way if the widow had been a Wisconsin domiciliary, and hence the courts were awarding to locals benefits withheld from foreigners. See Ely, supra note 73, at 185-89 (noting tension between Allstate and Austin). It may be that the rhetoric of choice obscures things here too, by avoiding talk of the rights on which Privileges and Immunities case law focuses.
-
The Federalist
, pp. 478
-
-
-
268
-
-
0347190508
-
-
See Laycock, supra note 73, at n.276
-
See Laycock, supra note 73, at n.276.
-
-
-
-
269
-
-
0347190507
-
-
See Jackson, supra note 232, at 6
-
See Jackson, supra note 232, at 6.
-
-
-
-
270
-
-
0346560441
-
-
See Laycock, supra note 73, at 289-90. Future Chief Justice John Marshall apparently gave a quite clear statement of the vested rights contract theory in the Virginia ratifying convention. See id. at 306-07. In 1797, the Supreme Court had quoted Ulrich Huber's (the Court referring to him as Huberus) territorialist maxims. See Emory v. Grenough, 3 U.S. (3 Dall.) 369, 370 n.* (1797). It was applying a territorial theory to decide torts cases as early as 1842, with no suggestion that it was creating a new approach or rejecting an earlier understanding. See Smith v. Condry, 42 U.S. (1 How.) 28, 33 (1842)
-
See Laycock, supra note 73, at 289-90. Future Chief Justice John Marshall apparently gave a quite clear statement of the vested rights contract theory in the Virginia ratifying convention. See id. at 306-07. In 1797, the Supreme Court had quoted Ulrich Huber's (the Court referring to him as Huberus) territorialist maxims. See Emory v. Grenough, 3 U.S. (3 Dall.) 369, 370 n.* (1797). It was applying a territorial theory to decide torts cases as early as 1842, with no suggestion that it was creating a new approach or rejecting an earlier understanding. See Smith v. Condry, 42 U.S. (1 How.) 28, 33 (1842).
-
-
-
-
271
-
-
0346560496
-
-
STORY, supra note 30, ¶ 7, at 8
-
STORY, supra note 30, ¶ 7, at 8.
-
-
-
-
272
-
-
0347190509
-
-
Id. ¶ 18, at 21
-
Id. ¶ 18, at 21.
-
-
-
-
273
-
-
0346560458
-
-
See SCOLES & HAY, supra note 7, § 2.2, at 9, § 2.4, at 12
-
See SCOLES & HAY, supra note 7, § 2.2, at 9, § 2.4, at 12.
-
-
-
-
274
-
-
0347820811
-
-
STORY, supra note 30, ¶ 38, at 36. For a listing of largely territorialist state court cases roughly contemporaneous with the drafting of the Constitution, see Laycock, supra note 73, at 307 n.340
-
STORY, supra note 30, ¶ 38, at 36. For a listing of largely territorialist state court cases roughly contemporaneous with the drafting of the Constitution, see Laycock, supra note 73, at 307 n.340.
-
-
-
-
275
-
-
0347820757
-
-
See Fauntleroy v. Lum, 210 U.S. 230, 237-38 (1908) (Holmes, J.). The rights that vested under the territorially appropriate law were not too dissimilar from the rights created by judgments. See 1 BEALE, supra note 6, § 8A.10. The significant point here is that there were no opposing rights
-
See Fauntleroy v. Lum, 210 U.S. 230, 237-38 (1908) (Holmes, J.). The rights that vested under the territorially appropriate law were not too dissimilar from the rights created by judgments. See 1 BEALE, supra note 6, § 8A.10. The significant point here is that there were no opposing rights.
-
-
-
-
276
-
-
0345929369
-
-
See supra note 238
-
See supra note 238.
-
-
-
-
277
-
-
0345929367
-
-
Gelpcke v. City of Dubuque, 68 U.S. (1 Wall.) 175, 206-07 (1863)
-
Gelpcke v. City of Dubuque, 68 U.S. (1 Wall.) 175, 206-07 (1863).
-
-
-
-
278
-
-
0345929370
-
-
note
-
See Pielemeier, supra note 233, at 1316-19. On diversity as antidiscrimination, see generally Friendly, supra note 252. Litigants might also have gotten federal conflicts rules, a hope slain by Klaxon v. Stentor Electric Manufacturing Co., 313 U.S. 487 (1941). I do not believe that federal conflicts rules are necessary, provided that we pay attention to constitutional restrictions on state conflicts rules. It is troubling that under Klaxon the federal courts act as ventriloquists' dummies, reproducing the very parochialism and bias their diversity jurisdiction exists to counter. The Second Circuit's experience with New York law is especially notable and unfortunate in this regard. See, e.g., Rosenthal v. Warren, 475 F.2d 438 (2d Cir. 1973); Pearson v. Northeast Airlines, Inc., 309 F.2d 553 (2d Cir. 1962) (en banc). It is the substantive bias of state choice-of-law rules that is the real problem, though, and if attention to the Constitution will eradicate it, there is no harm in having federal courts follow state conflicts law.
-
-
-
-
279
-
-
0347820762
-
-
Alaska Packers Assn. v. Industrial Accident Commn., 294 U.S. 532, 547 (1935)
-
Alaska Packers Assn. v. Industrial Accident Commn., 294 U.S. 532, 547 (1935).
-
-
-
-
280
-
-
0347820763
-
-
See infra text accompanying notes 276-80
-
See infra text accompanying notes 276-80.
-
-
-
-
281
-
-
0346560460
-
-
Laycock, supra note 73, at 295
-
Laycock, supra note 73, at 295.
-
-
-
-
282
-
-
0345929371
-
-
U.S. CONST, art. IV, § 1
-
U.S. CONST, art. IV, § 1.
-
-
-
-
283
-
-
0347820765
-
-
U.S. CONST, art. IV., § 2
-
U.S. CONST, art. IV., § 2.
-
-
-
-
284
-
-
0345929400
-
-
See, e.g., Hughes v. Fetter, 341 U.S. 609, 612 n.9 (1951) ("[The Full Faith and Credit Clause] 'altered the status of the several states as independent foreign sovereignties, each free to ignore rights and obligations created under the laws or established by the judicial proceedings of the others, by making each an integral part of a single nation.'" (quoting Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439 (1943))); Toomer v. Witsell, 334 U.S. 385, 395 (1948) ("The primary purpose of [the Privileges and Immunities Clause] . . . was to help fuse into one Nation a collection of independent, sovereign States.")
-
See, e.g., Hughes v. Fetter, 341 U.S. 609, 612 n.9 (1951) ("[The Full Faith and Credit Clause] 'altered the status of the several states as independent foreign sovereignties, each free to ignore rights and obligations created under the laws or established by the judicial proceedings of the others, by making each an integral part of a single nation.'" (quoting Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439 (1943))); Toomer v. Witsell, 334 U.S. 385, 395 (1948) ("The primary purpose of [the Privileges and Immunities Clause] . . . was to help fuse into one Nation a collection of independent, sovereign States.").
-
-
-
-
285
-
-
0345929405
-
Equality and the Conflict of Laws
-
Different notions of equality compete in conflicts theory. One directs that people acting in the same jurisdiction be treated the same regardless of where they are from (equality across domicile, power arranged territorially), the other that people from the same state be treated the same regardless of where they act (equality across territory, power arranged personally). See Mark D. Gergen, Equality and the Conflict of Laws, 73 IOWA L. REV. 893, 902 (1988). Gergen suggests there is no clear reason to prefer a territorial arrangement of state power to a personal one, so that scholars should simply accept "that any approach or policy will treat people unequally for reasons that may seem arbitrary to some people," id. at 902, but admits that those urging a territorial ordering have "a [constitutionally] stronger argument," id. at 906. The Constitution indeed seems to have a territorial orientation: at least, the Privileges and Immunities Clause entirely rejects the idea of ordering power on a personal basis. Peter Westen has suggested that equality is an "empty" idea that should be eliminated from legal discourse. See Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537 (1982). Westen claims that appeals to equality require some underlying notion of a relevant difference, and that equality arguments can be paraphrased as arguments about the relevance of the difference. The move is reminiscent of the realist attacks on the concept of rights. I have doubts about whether the paraphrases do avoid reliance on equality norms, but in any case I do not think that legal theory would benefit from eliminating the concept.
-
(1988)
Iowa L. Rev.
, vol.73
, pp. 893
-
-
Gergen, M.D.1
-
286
-
-
0000316467
-
The Empty Idea of Equality
-
Different notions of equality compete in conflicts theory. One directs that people acting in the same jurisdiction be treated the same regardless of where they are from (equality across domicile, power arranged territorially), the other that people from the same state be treated the same regardless of where they act (equality across territory, power arranged personally). See Mark D. Gergen, Equality and the Conflict of Laws, 73 IOWA L. REV. 893, 902 (1988). Gergen suggests there is no clear reason to prefer a territorial arrangement of state power to a personal one, so that scholars should simply accept "that any approach or policy will treat people unequally for reasons that may seem arbitrary to some people," id. at 902, but admits that those urging a territorial ordering have "a [constitutionally] stronger argument," id. at 906. The Constitution indeed seems to have a territorial orientation: at least, the Privileges and Immunities Clause entirely rejects the idea of ordering power on a personal basis. Peter Westen has suggested that equality is an "empty" idea that should be eliminated from legal discourse. See Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537 (1982). Westen claims that appeals to equality require some underlying notion of a relevant difference, and that equality arguments can be paraphrased as arguments about the relevance of the difference. The move is reminiscent of the realist attacks on the concept of rights. I have doubts about whether the paraphrases do avoid reliance on equality norms, but in any case I do not think that legal theory would benefit from eliminating the concept.
-
(1982)
Harv. L. Rev.
, vol.95
, pp. 537
-
-
Westen, P.1
-
287
-
-
0345929373
-
-
note
-
Full Faith and Credit targets discrimination in favor of local law, but by its own terms prohibits discrimination against any law solely by reason of its origin. Thus Massachusetts could not provide, for example, that in conflicts cases it will always apply Alaska law, because this would discriminate against other laws purely on the basis of their origin.
-
-
-
-
288
-
-
80052045935
-
Congressional Obligation to Provide a Forum for Constitutional Claims: Discriminatory Jurisdictional Rules and the Conflict of Laws
-
See Austin v. New Hampshire, 420 U.S. 656, 660-61 (1975); Toomer v. Witsell, 334 U.S. 385, 396 (1948) (stating that the Privileges and Immunities Clause bars "discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States"). With respect to Full Faith and Credit, the antidiscrimination principle appears clearly in cases involving attempts by states to close their courts to foreign law. See, e.g., First National Bank of Chicago v. United Air Lines, 342 U.S. 396 (1952); Hughes v. Fetter, 341 U.S. 609 (1951); see generally Lea Brilmayer & Stefan Underhill, Congressional Obligation to Provide a Forum for Constitutional Claims: Discriminatory Jurisdictional Rules and the Conflict of Laws, 69 VA. L. REV. 819, 825-26 (1983) ("The Supreme Court has consistently held, under the full faith and credit clause, that a state must give the same access to its court system for actions based on another state's law as it does for similar actions based on its own law."). As discussed in the text, this antidiscrimination reading is not quite as obvious with respect to rejections of foreign rights based on conflicting local law, rather than on jurisdictional limitations. Germs of the reading - or a similar one - did make an appearance in Alaska Packers Assn. v. Industrial Accident Commission of California, 294 U.S. 532, 547-48 (1935), where the Court suggested that Full Faith and Credit would require recognition of foreign rights whenever a party could show "upon some rational basis, that of the conflicting interests involved those of the foreign state are superior to those of the forum." The Court quickly retreated from the suggestion that Full Faith and Credit contemplated balancing of interests in Pacific Employers Insurance Co. v. Industrial Accident Commission, 306 U.S. 493 (1939), and buried it entirely in Carroll v. Lanza, 349 U.S. 408 (1955). I do not suggest that courts should decide which state's interest is superior; the task is rather to be sure that states do not claim a greater interest because they hold lightly the interests of other states. See infra text accompanying notes 329-31.
-
(1983)
Va. L. Rev.
, vol.69
, pp. 819
-
-
Brilmayer, L.1
Underhill, S.2
-
289
-
-
0347820767
-
-
See Laycock, supra note 73, at 290-95
-
See Laycock, supra note 73, at 290-95.
-
-
-
-
290
-
-
0345929368
-
-
See, e.g., Carroll, 349 U.S. at 411 ("A statute is a 'public act' within the meaning of the Full Faith and Credit Clause.")
-
See, e.g., Carroll, 349 U.S. at 411 ("A statute is a 'public act' within the meaning of the Full Faith and Credit Clause.").
-
-
-
-
291
-
-
0347820766
-
-
See supra note 273
-
See supra note 273.
-
-
-
-
292
-
-
0347820772
-
-
349 U.S. 408 (1955)
-
349 U.S. 408 (1955).
-
-
-
-
293
-
-
0347820799
-
-
440 U.S. 410 (1979)
-
440 U.S. 410 (1979).
-
-
-
-
294
-
-
0347190501
-
-
Hall, 440 U.S. at 422; see also Carroll, 349 U.S. at 412-14 (distinguishing between denial of jurisdiction to hear suit based on foreign law and decision according to local law). I suggest not that Full Faith and Credit requires this, but simply that it requires a reason for local rights to defeat foreign rights - and that, having announced this reason, a state must consistently follow it, regardless of whose ox is gored. (Thus while any particular conflicts decision is likely to be acceptable, certain patterns of decisions will not be.)
-
Hall, 440 U.S. at 422; see also Carroll, 349 U.S. at 412-14 (distinguishing between denial of jurisdiction to hear suit based on foreign law and decision according to local law). I suggest not that Full Faith and Credit requires this, but simply that it requires a reason for local rights to defeat foreign rights - and that, having announced this reason, a state must consistently follow it, regardless of whose ox is gored. (Thus while any particular conflicts decision is likely to be acceptable, certain patterns of decisions will not be.)
-
-
-
-
295
-
-
0347820774
-
-
note
-
Both cases featured injuries occurring in the forum state, and a simple territorial rule explains these results quite easily. In fact, the notion of territorial sovereignty is clear in the early Full Faith and Credit cases. See, e.g., Pacific Ins. Co. v. Industrial Accident Commn., 306 U.S. 493, 504-05 (1939) ("Full faith and credit does not here enable one state to legislate for the other or to project its laws across state lines so as to preclude the other from prescribing for itself the legal consequences of acts within it."). The absence of similar territorial reasoning in Hall (which, oddly enough, quotes the above sentence, see Hall, 440 U.S. at 423-24) provoked a three-Justice dissent. See Hall, 440 U.S. at 428 (Blackmun, J., dissenting) (contrasting majority opinion to territorial reasoning of lower court).
-
-
-
-
296
-
-
0346560461
-
-
See supra note 273
-
See supra note 273.
-
-
-
-
297
-
-
0347820764
-
-
See Allstate Ins. Co. v. Hague, 449 U.S. 302, 313-20 (1981) (upholding application of Minnesota law based on decedent's working in Minnesota, widow's after-acquired Minnesota domicile, and Allstate's "presence" in Minnesota)
-
See Allstate Ins. Co. v. Hague, 449 U.S. 302, 313-20 (1981) (upholding application of Minnesota law based on decedent's working in Minnesota, widow's after-acquired Minnesota domicile, and Allstate's "presence" in Minnesota).
-
-
-
-
298
-
-
0347820775
-
-
Cf. Kramer, supra note 215
-
Cf. Kramer, supra note 215.
-
-
-
-
299
-
-
0345929377
-
-
note
-
The tension with Privileges and Immunities arises because it seems unlikely that Minnesota would have applied its law to benefit a Wisconsin domiciliary in similar straits. Indeed, if the domiciliary status of one party is the only reason a state has for applying its law, Due Process will forbid it from extending similar rights to out-of-staters, as Phillips Petroleum holds. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 815-22 (1985). But the Court's Privileges and Immunities cases suggest that out-of-staters may not be denied the rights granted locals merely on the basis of their foreign domicile. See supra note 273.
-
-
-
-
300
-
-
0345929376
-
-
note
-
It is wrong because, were the contacts reversed, Minnesota would surely not have held that Wisconsin rights prevailed with respect to an accident between Minnesotans occurring in Minnesota, where the plaintiff moved to Wisconsin after the accident. Consequently, Minnesota must have rejected the Wisconsin rights because they were foreign and thereby violated Full Faith and Credit. See infra section VI.B.1.
-
-
-
-
301
-
-
0346560459
-
-
See Wells v. Simonds Abrasive Co., 345 U.S. 514, 521 (1953) (Jackson, J., dissenting) ("The whole purpose and the only need for requiring full faith and credit to foreign law is that it does differ from that of the forum.")
-
See Wells v. Simonds Abrasive Co., 345 U.S. 514, 521 (1953) (Jackson, J., dissenting) ("The whole purpose and the only need for requiring full faith and credit to foreign law is that it does differ from that of the forum.").
-
-
-
-
302
-
-
0347190515
-
-
note
-
More charitably, the Court's retreat may reflect the realization that constructing a hierarchy of interests is the legitimate prerogative of the states. But this does not mean that Full Faith and Credit has no role to play. Its goal is to "guard the new political and economic union against the disintegrating influence of provincialism in jurisprudence, but without aggrandizement of federal power at the expense of the states." Jackson, supra note 232, at 17. The question is how to balance the federal and local interests, and leaving everything up to the states is not the answer.
-
-
-
-
303
-
-
0347190519
-
-
See supra note 273
-
See supra note 273.
-
-
-
-
304
-
-
0345929378
-
-
See, e.g., Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 375-59, 386-87 (1996)
-
See, e.g., Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 375-59, 386-87 (1996).
-
-
-
-
305
-
-
0345929420
-
-
note
-
This is the more popular description. As discussed above, see supra section III.C, I think it is more useful to talk in terms of conflicting rights.
-
-
-
-
306
-
-
0347820781
-
-
See infra section VI.B
-
See infra section VI.B.
-
-
-
-
307
-
-
0345929374
-
-
See Jackson, supra note 232, at 12; Laycock, supra note 73, at 290-95
-
See Jackson, supra note 232, at 12; Laycock, supra note 73, at 290-95.
-
-
-
-
308
-
-
0346560462
-
-
See Baldwin v. Fish & Game Commn., 436 U.S. 371, 387-88 (1978)
-
See Baldwin v. Fish & Game Commn., 436 U.S. 371, 387-88 (1978).
-
-
-
-
309
-
-
0347820773
-
-
See Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 284 (1985). A mere desire to benefit locals does not count as a substantial interest
-
See Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 284 (1985). A mere desire to benefit locals does not count as a substantial interest.
-
-
-
-
310
-
-
0347190538
-
-
See Ely, supra note 73, at 190
-
See Ely, supra note 73, at 190.
-
-
-
-
311
-
-
0345929379
-
-
See Laycock, supra note 73, at 265-66. Currie similarly talks about "[t]he right of access to courts, generally stated." See CURRIE, supra note 161, at 467 n.70
-
See Laycock, supra note 73, at 265-66. Currie similarly talks about "[t]he right of access to courts, generally stated." See CURRIE, supra note 161, at 467 n.70.
-
-
-
-
312
-
-
0345929421
-
-
note
-
This is, in a sense, just another way of saying that equal treatment in the courts is a fundamental right. I think it is somewhat clearer, though, to distinguish between rules of scope and conflicts rules.
-
-
-
-
313
-
-
0347190549
-
-
See Ely, supra note 73, at 182-83 ("Baldwin or no Baldwin, it is not likely to be suggested that [decisions about liability] implicate rights so unimportant that they can be dismissed as beyond the coverage of the Privileges and Immunities Clause.")
-
See Ely, supra note 73, at 182-83 ("Baldwin or no Baldwin, it is not likely to be suggested that [decisions about liability] implicate rights so unimportant that they can be dismissed as beyond the coverage of the Privileges and Immunities Clause.").
-
-
-
-
314
-
-
0347190524
-
-
note
-
The right of access to courts is acknowledged as fundamental. See McKnett v. St. Louis & S.F. Ry. Co., 292 U.S. 230, 233 (1934). The refusal to grant the benefits of local law is not precisely a denial of access, but surely the right of access is meaningless if, having once gotten into court, the out-of-stater then faces discrimination as to substantive rights.
-
-
-
-
315
-
-
0345929381
-
-
See supra note 273
-
See supra note 273.
-
-
-
-
316
-
-
0345929385
-
-
note
-
As mentioned earlier, I think that "choice-of-law rules" are misleadingly named. What they actually do is describe when foreign-created rights will be respected. The appropriate way to invoke a foreign-created right is not to sue under forum law and have the forum court decide which law applies to the claim; it is to sue under foreign law. If the forum court then decides that local law "applies," it has decided either that the law the plaintiff pleads grants him no right (a scope decision) or that the foreign right yields to whatever local defense the defendant invokes (a conflicts decision).
-
-
-
-
317
-
-
0345929419
-
-
See CURRIE, supra note 22, at 186
-
See CURRIE, supra note 22, at 186.
-
-
-
-
318
-
-
0347190547
-
-
See Mondou v. N.Y., New Haven & Hartford R.R. Co., 223 U.S. 1, 55-57 (1912)
-
See Mondou v. N.Y., New Haven & Hartford R.R. Co., 223 U.S. 1, 55-57 (1912).
-
-
-
-
319
-
-
0346560438
-
Uniform Interstate Enforcement of Vested Rights
-
See John K. Beach, Uniform Interstate Enforcement of Vested Rights, 27 YALE L.J. 656, 665 (1917) ("Surely the Constitution expresses the real and controlling 'policy' of the states in this regard."). In a sense, the Constitution thus provides the objective state interests whose absence Brilmayer believes dooms Currie's theory.
-
(1917)
Yale L.J.
, vol.27
, pp. 656
-
-
Beach, J.K.1
-
320
-
-
0345929384
-
-
note
-
It is doubtless not obvious how this result will be helpful. The discovery of false conflicts is generally considered the great achievement of interest analysis; rejecting this insight does not seem like an advance. I will argue, however, that an abundance of conflicts is not a bad thing. See infra section VI.B.
-
-
-
-
321
-
-
0042356657
-
-
supra note 81
-
See Kramer, Myth, supra note 81.
-
Myth
-
-
Kramer1
-
322
-
-
0347190523
-
-
CURRIE, supra note 76, at 152
-
CURRIE, supra note 76, at 152.
-
-
-
-
323
-
-
0042356657
-
-
supra note 81
-
Lea Brilmayer suggests that only domiciliary factors were generally relevant to Currie, see BRILMAYER, supra note 8, § 2.1.2, at 65-66, and hence that an unprovided-for case arises whenever the plaintiffs home law bars recovery and the defendant's permits it, see id. § 2.1.2, at 63. This is somewhat of an oversimplification, as she later acknowledges, see id. § 212, at 67, and only true with respect to Currie's analysis of married women's contracts, see CURRIE, supra note 102, at 108. If a tort occurs in the pro-recovery state, Currie found an interest: the state "may incur responsibility to the person injured in the state." CURRIE, supra note 76 at 148; see also id. at 157 (constructing table of permutations, finding different interests based on territorial factors); id. at 149 ("California's interest in the injured plaintiff is based solely on the fact that he was injured here, but that has been regarded as a substantial basis."); id. at 150-51 ("[T]he fact that the injury occurred in California suggests -though it does not necessarily follow - that California may become very deeply concerned."). In his analysis of married women's contracts, the starting point for Brilmayer's discussion, Currie in fact found no unprovided-for cases. See CURRIE, supra note 102, at 95 (evaluating effect of application of law of the place of contracting on state interests, and finding an interest in each permutation). This results from his rather complex articulation of the interests at stake. It is not unfair to say that Currie tended to find interests that produced congenial results. Brilmayer suggests that different, equally plausible interests may be constructed, see BRILMAYER, supra note 8 § 2.1.2, at 61-62, and this is quite true. To generalize interest analysis sufficiently that it becomes determinate, rather than retaining enough flexibility to produce whatever result the judge wishes to reach, it is probably necessary to distort Currie a bit. Tackling Currie on his own terms is like having a fistfight with a fog. Attributing to him a focus on domiciliary factors is one way to do so. Kramer produces a slightly more charitable generalization, supposing that states generally have interests in regulating conduct either occurring within their borders or affecting their domiciliaries. See Kramer, Myth, supra note 81, at 1065.
-
Myth
, pp. 1065
-
-
Kramer1
-
324
-
-
0042356657
-
-
supra note 81
-
See Kramer, Myth, supra note 81, at 1064.
-
Myth
, pp. 1064
-
-
Kramer1
-
325
-
-
0347820784
-
-
note
-
It may be that at this point my reading of Kramer is too strongly colored by my own perspective; in later work he casts the question in terms of which law applies. See supra note 154 and accompanying text.
-
-
-
-
326
-
-
0042356657
-
-
supra note 81
-
See Kramer, Myth, supra note 81, at 1051-55. This is of course the procedure followed in ordinary cases.
-
Myth
, pp. 1051-1055
-
-
Kramer1
-
327
-
-
0347820776
-
-
See supra section IV.B. One thing Kramer's article thus shows is how far astray the notion of choosing an applicable law led Currie. Oddly, Kramer at times seems prone to the same mistake. See supra text accompanying note 154
-
See supra section IV.B. One thing Kramer's article thus shows is how far astray the notion of choosing an applicable law led Currie. Oddly, Kramer at times seems prone to the same mistake. See supra text accompanying note 154.
-
-
-
-
328
-
-
0042356657
-
-
supra note 81
-
See Kramer, Myth, supra note 81, at 1062-63.
-
Myth
, pp. 1062-1063
-
-
Kramer1
-
329
-
-
0345929380
-
-
264 P.2d 944 (Cal. 1953). Grant is the occasion for another of Currie's extended analyses of possible permutations of contacts. See CURRIE, supra note 76
-
264 P.2d 944 (Cal. 1953). Grant is the occasion for another of Currie's extended analyses of possible permutations of contacts. See CURRIE, supra note 76.
-
-
-
-
330
-
-
0346560466
-
-
considers supra note 81, (Grant), 1060-63 (Erwin)
-
Distinguishing between these two classes of cases may be difficult. It is not impossible, however, and is sometimes easy. If a state does not permit suit for loss of consortium, its law clearly confers no right. If it does have a wrongful death action but abates it on the death of the tortfeasor, its law confers a right but subordinates it to the defense. (These examples are drawn from the facts of Grant and Erwin v. Thomas, 506 P.2d 494 (Or. 1973), which Kramer considers in Myth, supra note 81, at 1048-56 (Grant), 1060-63 (Erwin).
-
Myth
, pp. 1048-1056
-
-
Kramer1
-
331
-
-
0042356657
-
-
supra note 81
-
See Kramer, Myth, supra note 81, at 1062-63.
-
Myth
, pp. 1062-1063
-
-
Kramer1
-
332
-
-
0346560493
-
-
506 P.2d 494 (Or. 1973)
-
506 P.2d 494 (Or. 1973).
-
-
-
-
333
-
-
0345929418
-
-
note
-
The tort, in these examples, takes place in the plaintiff's state. See, e.g., Erwin, 506 P.2d at 495.
-
-
-
-
334
-
-
0042356657
-
-
supra note 81
-
See Kramer, Myth, supra note 81, at 1073. This may not be the correct reading of the Clause; it is at least arguable that it applies only to treatment of out-of-staters with respect to in-state occurrences. See Toomer v. Witsell, 334 U.S. 385, 395 (1948) ("It was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy."). Whether the Clause is triggered when a State A citizen "ventures into State B" to litigate an out-of-state transaction is not entirely clear.
-
Myth
, pp. 1073
-
-
Kramer1
-
335
-
-
0346560470
-
-
note
-
Whether it would or not is the crucial question for Privileges and Immunities, and I will consider it in more detail later. See infra part VI.B.1. At this point, we may simply note that if it followed the prescriptions of interest analysis, it would. As a matter of historical fact, of course, California did apply its law, see Grant v. McAuliffe, 264 P.2d 944, 949 (Cal. 1953), but I am considering how interest analysis operates.
-
-
-
-
336
-
-
0345929393
-
-
note
-
The presence of an Arizona interest will not prove essential to my analysis. With a law directed to primary conduct, Arizona presumably has an interest in deterring dangerous activity within its borders. The abatement of a tort suit upon the death of the tortfeasor has only marginal effect on primary conduct, however, so the claim that Arizona has no interest in applying that rule to two Californians is at least plausible.
-
-
-
-
337
-
-
0042356657
-
-
supra note 81
-
See Kramer, Myth, supra note 81, at 1073.
-
Myth
, pp. 1073
-
-
Kramer1
-
338
-
-
0345929392
-
-
note
-
Subject, of course, to the qualifications noted above. See supra section V.B.2.
-
-
-
-
339
-
-
0042356657
-
-
supra note 81
-
See Kramer, Myth, supra note 81, at 1047-48.
-
Myth
, pp. 1047-1048
-
-
Kramer1
-
340
-
-
0345929417
-
-
note
-
Perhaps these should be called "reverse true conflicts" since they feature the unusual situation in which each state is asserting an interest in disadvantaging its domiciliary. (This is the reason Kramer believes that the plaintiff wins by suing in the defendant's home court.)
-
-
-
-
341
-
-
0347190548
-
-
CURRIE, supra note 76, at 161
-
CURRIE, supra note 76, at 161.
-
-
-
-
342
-
-
0042356657
-
-
supra note 81
-
See Kramer, Myth, supra note 81, at 1069-70.
-
Myth
, pp. 1069-1070
-
-
Kramer1
-
343
-
-
0346560492
-
-
note
-
Generalizing about Currie's approach is difficult, and this characterization may not be entirely fair. Currie did, after all, suggest that a state may have an interest in allowing recovery to out-of-staters so that they can pay their in-state hospital bills. See CURRIE, supra note 76, at 145 n.64.
-
-
-
-
344
-
-
0345929391
-
-
note
-
See supra text accompanying note 226. I use here the contacts that Currie sets out as potentially relevant, though I omit the location of the forum. See CURRIE, supra note 76, at 141. It should be emphasized that these are not the only contacts a conflicts rule can consider - states have the freedom to orient their rules around whatever contacts they desire. Depending on the contacts deemed relevant, Al v. George and Lou v. Al might not be mirror images as I have constructed them. For example, it might be relevant whether the parties know each other and were traveling to the same destination in separate cars. It should be nonetheless clear that mirror-image cases can be constructed, using whatever contacts are taken as relevant.
-
-
-
-
345
-
-
0345929394
-
-
internal quotation marks omitted
-
Cf. Jackson, supra note 232, at 25-26 ("'It will not do to decide the same question one way between one set of litigants and the opposite way between another. . . . If a case was decided against me yesterday when I was defendant, I shall look for the same judgment today if I am plaintiff.'") (quoting CARDOZO, supra note 227, at 33 (alteration in original) (quoting WILLIAM GOLDSMITH MILLER, THE DATA OF JURISPRUDENCE 335 (1903) (internal quotation marks omitted))).
-
(1903)
The Data of Jurisprudence
, pp. 335
-
-
Miller, W.G.1
-
346
-
-
0347820786
-
-
note
-
With this particular example, Alabama would probably opt for a rule privileging its rights in Al v. George and subordinating them in Lou v. Al, primarily because the accident in Al v. George occurred in Alabama. For the same reason. Louisiana's conflicts rules are likely to privilege its rights in Lou v. Al. A general preference for territorial sovereignty will lead to interstate agreement about whose rights should prevail. This is nice, but not essential.
-
-
-
-
347
-
-
0345929402
-
-
note
-
I speak of the federal judiciary because state courts have played a role in creating discriminatory conflicts rules. Of course, the constitutional limits I identify bind state courts as well.
-
-
-
-
348
-
-
0347820798
-
-
note
-
Laycock does not specify these conditions, see Laycock, supra note 73, at 276, but they are essential to my analysis.
-
-
-
-
349
-
-
0347190536
-
-
supra note 81, see also supra text accompanying note 319
-
See Kramer, Myth, supra note 81, at 1073; see also supra text accompanying note 319.
-
Myth
, pp. 1073
-
-
Kramer1
-
350
-
-
0347820785
-
-
Cf. American Banana Co. v. United Fruit Co., 213 U.S. 347, 355-56 (1909) (Holmes, J.) (pointing out that national states - i.e., countries - often seek to apply their own law, even to acts within other jurisdictions)
-
Cf. American Banana Co. v. United Fruit Co., 213 U.S. 347, 355-56 (1909) (Holmes, J.) (pointing out that national states - i.e., countries - often seek to apply their own law, even to acts within other jurisdictions).
-
-
-
-
351
-
-
0345929404
-
-
note
-
Again, conflicts rules are not rules of scope. The Privileges and Immunities Clause operates as both a rule of scope and a constraint on permissible conflicts rules. As a rule of scope, it requires state laws to extend rights to nondomiciliaries on the same terms as it extends them to locals. As a conflicts rule constraint, it prevents states from applying rules that honor those rights helpful to local domiciliaries.
-
-
-
-
352
-
-
0347820797
-
-
note
-
For this to work, it must be the case that Washington grants the defendant a right. A rational attempt to promote state interests would lead it to do so, since otherwise it loses the ability to control transactions taking place within its borders. That is, if it grants no right to the Oregon domiciliary, it cannot grant rights to its own domiciliaries in similar cases without violating the Privileges and Immunities Clause.
-
-
-
-
353
-
-
0347190537
-
-
See CURRIE, supra note 76, at 160-61
-
See CURRIE, supra note 76, at 160-61.
-
-
-
-
354
-
-
0026879890
-
The Law of Choice and Choice of Law: Abortion, the Right to Travel, and Extraterritorial Regulation in American Federalism
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If Privileges and Immunities did forbid this "deference," the state of common domicile could still regulate. It could attach what legal consequences it wanted to the transaction and re-allocate loss or even impose criminal sanctions - subject to the possible restrictions of the Commerce Clause, as Akhil Amar pointed out to me. The significance of domicile is precisely that a state can legitimately claim to apply its laws to its domiciliaries' actions abroad - even if it has to wait until they return home. See Brilmayer, supra note 71, at 1297-1303. But see Seth F. Kreimer, The Law of Choice and Choice of Law: Abortion, the Right to Travel, and Extraterritorial Regulation in American Federalism, 67 N.Y.U. L. REV. 451 (1992) (arguing that extraterritorial regulation of domiciliaries is unconstitutional). Kreimer's analysis seems at odds with conflicts law. If a state can constitutionally apply its law to extraterritorial actions of foreigners who commit torts against its domiciliaries, it would be surprising if it were less able to regulate its domiciliaries. The question is complex; in some cases (perhaps with regard to gambling) regulation of extraterritorial acts might look too much like protectionism to survive Commerce Clause scrutiny. The majority of scholarly opinions seems to support state authority over domiciliaries' extraterritorial acts. See, e.g., Gergen, supra note 271, at 907 n.94; Donald Regan, Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of America and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 MICH. L. REV. 1865, 1907 (1987); William Van Alstyne, Closing the Circle of Constitutional Review from Griswold v. Connecticut to Roe v. Wade: An Outline of a Decision Merely Overruling Roe, 1989 DUKE L.J. 1677, 1684 n.27.
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(1992)
N.Y.U. L. Rev.
, vol.67
, pp. 451
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Kreimer, S.F.1
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355
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0026879890
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Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of America and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation
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If Privileges and Immunities did forbid this "deference," the state of common domicile could still regulate. It could attach what legal consequences it wanted to the transaction and re-allocate loss or even impose criminal sanctions - subject to the possible restrictions of the Commerce Clause, as Akhil Amar pointed out to me. The significance of domicile is precisely that a state can legitimately claim to apply its laws to its domiciliaries' actions abroad - even if it has to wait until they return home. See Brilmayer, supra note 71, at 1297- 1303. But see Seth F. Kreimer, The Law of Choice and Choice of Law: Abortion, the Right to Travel, and Extraterritorial Regulation in American Federalism, 67 N.Y.U. L. REV. 451 (1992) (arguing that extraterritorial regulation of domiciliaries is unconstitutional). Kreimer's analysis seems at odds with conflicts law. If a state can constitutionally apply its law to extraterritorial actions of foreigners who commit torts against its domiciliaries, it would be surprising if it were less able to regulate its domiciliaries. The question is complex; in some cases (perhaps with regard to gambling) regulation of extraterritorial acts might look too much like protectionism to survive Commerce Clause scrutiny. The majority of scholarly opinions seems to support state authority over domiciliaries' extraterritorial acts. See, e.g., Gergen, supra note 271, at 907 n.94; Donald Regan, Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of America and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 MICH. L. REV. 1865, 1907 (1987); William Van Alstyne, Closing the Circle of Constitutional Review from Griswold v. Connecticut to Roe v. Wade: An Outline of a Decision Merely Overruling Roe, 1989 DUKE L.J. 1677, 1684 n.27.
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(1987)
Mich. L. Rev.
, vol.85
, pp. 1865
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Regan, D.1
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356
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0024869612
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Closing the Circle of Constitutional Review from Griswold v. Connecticut to Roe v. Wade: An Outline of a Decision Merely Overruling Roe
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n.27
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If Privileges and Immunities did forbid this "deference," the state of common domicile could still regulate. It could attach what legal consequences it wanted to the transaction and re-allocate loss or even impose criminal sanctions - subject to the possible restrictions of the Commerce Clause, as Akhil Amar pointed out to me. The significance of domicile is precisely that a state can legitimately claim to apply its laws to its domiciliaries' actions abroad - even if it has to wait until they return home. See Brilmayer, supra note 71, at 1297- 1303. But see Seth F. Kreimer, The Law of Choice and Choice of Law: Abortion, the Right to Travel, and Extraterritorial Regulation in American Federalism, 67 N.Y.U. L. REV. 451 (1992) (arguing that extraterritorial regulation of domiciliaries is unconstitutional). Kreimer's analysis seems at odds with conflicts law. If a state can constitutionally apply its law to extraterritorial actions of foreigners who commit torts against its domiciliaries, it would be surprising if it were less able to regulate its domiciliaries. The question is complex; in some cases (perhaps with regard to gambling) regulation of extraterritorial acts might look too much like protectionism to survive Commerce Clause scrutiny. The majority of scholarly opinions seems to support state authority over domiciliaries' extraterritorial acts. See, e.g., Gergen, supra note 271, at 907 n.94; Donald Regan, Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of America and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 MICH. L. REV. 1865, 1907 (1987); William Van Alstyne, Closing the Circle of Constitutional Review from Griswold v. Connecticut to Roe v. Wade: An Outline of a Decision Merely Overruling Roe, 1989 DUKE L.J. 1677, 1684 n.27.
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Duke L.J.
, vol.1989
, pp. 1677
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Van Alstyne, W.1
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357
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0346560474
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note
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Thus the full contact-switching mirror-image test works only to detect Full Faith and Credit violations. The test for Privileges and Immunities violations is to switch only domiciliary factors and ask if the same rights prevail. If not, there is a violation. Since the Privileges and Immunities constraint thus means that switching domiciliary factors cannot change the result, the Full Faith and Credit mirror-image test really comes down to switching the non-domiciliary factors.
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0346560473
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The constitutional restrictions I have identified force each state to do this. A state will take the interests of other states just as seriously as its own because to claim priority in case A, it must surrender legislative jurisdiction over mirror-image case B. In case B its interests are those it has said are the less important in case A. Consequently, discounting sister-state interests means discounting local interests in mirror-image cases. The interests of other states are effectively the state's own interests.
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See, e.g., Ely, supra note 73, at 180; Laycock, supra note 73, at 251 ("[A] state's interests in enriching local citizens . . . simply should not count."). The significance of a domiciliary connection, I think, is not so much that it gives states a reason to extend rights as that it gives them a justification for imposing penalties. See Brilmayer, supra note 71, at 1297-1303. If a state is truly concerned about what its domiciliaries do outside its borders, it can probably impose criminal sanctions. See supra note 339
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See, e.g., Ely, supra note 73, at 180; Laycock, supra note 73, at 251 ("[A] state's interests in enriching local citizens . . . simply should not count."). The significance of a domiciliary connection, I think, is not so much that it gives states a reason to extend rights as that it gives them a justification for imposing penalties. See Brilmayer, supra note 71, at 1297-1303. If a state is truly concerned about what its domiciliaries do outside its borders, it can probably impose criminal sanctions. See supra note 339.
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360
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0345929386
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note
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This should not be surprising; the Framers were working within the Anglo-American tradition that saw law as a territorial entity. See supra text accompanying notes 28, 255-60. Beale notes the two conflicting traditions of "personal" and "territorial" law and pronounces that "[t]he conception of the common law has always been the conception of a territorial law." 1 BEALE, supra note 6, § 5.2, at 52. Even today, federal laws are presumptively territorial in their scope. See EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248-59 (1991).
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361
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0347190525
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See Laycock, supra note 73, at 322
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See Laycock, supra note 73, at 322.
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362
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0347190534
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note
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Laycock suggests a territorial approach that looks to the location of the relationship between the parties. See id. at 323-27. This is an interesting idea, although it seems odd that if one Califoraian commits a tort against another in Texas, the parties' rights will differ depending on whether they know each other or not.
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363
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0345929395
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note
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The basic constitutional concern of conflicts jurisprudence is discrimination against foreign domiciliaries or, as a lesser and probably derivative matter, against foreign law. The model I sketch here does not do much to address problems of discrimination in favor of plaintiffs generally, which may occur if litigation brings benefits to the forum. A state probably could then adopt the rule that the law favoring the plaintiff prevails. The constitutional concern is that this would lead to privileging pro-plaintiff substantive law, since plaintiffs pick where to sue. Similar concerns arise with a preference for the generally adopted rule.
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364
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0345929399
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note
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Brilmayer puts it this way: Particularly where the Court is assessing state interests, it should not impose an ideal definition of interest but only ask whether a reasonable state might think it has an interest under these circumstances. State preferences are likely to differ, in part because of difference in value choices and in part because of divergent empirical assumptions. That is what state lawmaking is all about. BRILMAYER, supra note 8, at 165. I agree with the caveat that the Court should ask whether a nondiscriminatory state might think it has a greater interest.
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365
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0347820794
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note
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This surrender of cases in which the conflicts calculus points to another state is precisely what interest analysis refuses to do, and that is why I believe it is unconstitutional.
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366
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0347190530
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note
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The retraction does not mean that the state's rights will never be enforced. It means only that they will yield to sister-state rights, and if there are no opposing rights, there is nothing to which to yield. It is for this reason that a state's law may govern interactions between its domiciliaries in places with no local law. See, e.g., American Banana Co. v. United Fruit Co., 213 U.S. 347, 355-56 (1909) (Holmes, J.). The difference between the absence of a right and its subordination explains why broad scopes of rights help in keeping states honest. If rights generally had narrow scope, states could try to game the system by structuring their conflicts rules so that cases in which their rights yielded tended to be cases in which no contrary rights existed. That would give them cheap wins in such cases, since their rights would be enforced without the sacrifice of the claim to authority over mirror-image cases.
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367
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0345929398
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note
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On this point I disagree with Laycock, who believes that "[w]hether sister-state law applies is a federal question, and each state is obliged to give the same answer to that federal question." See Laycock, supra note 73, at 301.
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368
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59649111613
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The Supreme Court, 1990 Term - Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores)
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See Guido Calabresi, The Supreme Court, 1990 Term - Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), 105 HARV. L. REV. 80, 91-103 (1991); Allison Moore, Loving's Legacy: The Other Antidiscrimination Principles, 34 HARV. C.R.-C.L. L. REV. 163, 173-74, 178-82 (1999).
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(1991)
Harv. L. Rev.
, vol.105
, pp. 80
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Calabresi, G.1
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369
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7044241310
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Loving's Legacy: The Other Antidiscrimination Principles
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See Guido Calabresi, The Supreme Court, 1990 Term - Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), 105 HARV. L. REV. 80, 91-103 (1991); Allison Moore, Loving's Legacy: The Other Antidiscrimination Principles, 34 HARV. C.R.-C.L. L. REV. 163, 173-74, 178-82 (1999).
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(1999)
Harv. C.R.-C.L. L. Rev.
, vol.34
, pp. 163
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Moore, A.1
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370
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0347190531
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See Calabresi, supra note 351, at 91
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See Calabresi, supra note 351, at 91.
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371
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0345929396
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See id. at 91-93
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See id. at 91-93.
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372
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0346560472
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See id.
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See id.
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373
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0003638780
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2d ed.
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Congress's power to legislate under Article I is of course limited, see City of Boerne v. Flores, 117 S. Ct. 2157, 2162 (1997); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-1, at 297 (2d ed. 1988), and it might be hard to displace local tort laws. Congress can also legislate pursuant to the Full Faith and Credit Clause, which permits it to specify conflicts rules. U.S. CONST, art. IV, § 1; see TRIBE, supra, § 5-2, at 298.
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(1988)
American Constitutional Law § 5-1
, pp. 297
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Tribe, L.H.1
|