(American) Conflict of Laws Revolution

(American) Conflict of Laws Revolution

Description

The term ‘conflict of laws revolution’ is a short-hand reference to describe the intellectual movement that ‘challenged and eventually demolished the foundations of the established American system of conflicts law’ (Symeon C Symeonides, The American Choice-of-Law Revolution: Past, Present, and Future (Martinus Nijhoff 2006)). As Professor Symeonides notes, however, the term ‘American conflicts law’ is itself a misnomer since there is no single American conflicts law. Conflict of laws is primarily the province of state law and thus each state has its own conflict-of-laws rules. Pursuant to Klaxon Co v Stentor Electric Mfg Co, 313 U.S. 487 (1941), federal courts exercising diversity of citizenship jurisdiction to hear state law claims must also apply the conflict-of-laws rules of the state in which the federal court sits. In a limited number of areas of federal concern, the federal courts are free to formulate an independent federal choice-of-law rule, but they nonetheless often adopt the methodology used by the forum state. Notwithstanding that multiple jurisdictions provide the source of choice-of-law rules in the USA, the approach to → choice of law in the USA for much of its history was relatively uniform, even if there were differences in the application of particular rules. However, during the 1960s, academic dissent from the philosophical premises of traditional choice-of-law theory and judicial decisions rejecting the prior system of choice-of-law rules inspired a variety of new approaches to choice of law. This transformation of choice-of-law theory and the resulting approaches to choice of law that developed became known in the USA as the ‘conflicts revolution’. The earliest formulation of US conflicts principles can be traced to Joseph Story’s (→ Story, Joseph) 19th-century treatise, Commentaries on the Conflict of Laws, Foreign and Domestic (CC Little and J Brown 1834). The 1934 First Restatement of Conflict of Laws (American Law Institute, restatement of the Law, First: Conflict of Laws, St. Paul 1934; → Restatement (First and Second) of Conflict of Laws) under the auspices of the American Law Institute and its reporter Joseph Beale built on Story’s foundation, although the theoretical conception underlying the restatement rested on a principle of vested rights of territorial application of law (→ Vested rights theory) rather than Story’s notions of → comity. That 1934 Restatement set forth an organized system of fixed, neutral and detailed choice-of-law rules based on a designated territorial contact. It offered jurisdiction-selected solutions for all types of cases, with only limited flexibility and with the objective of achieving uniformity, predictability and certainty. This traditional approach to choice of law had come under attack by a number of academic theorists throughout the 1920s and 1930s, but it was not until the 1960s that the ‘conflicts revolution’ unfolded. The first shots were fired in the significant writings of Professors Brainerd Currie (→ Currie, Brainerd) and David Cavers, and other important conflict-of-law scholars joined the cause: Professors William Baxter, Willis Reese, Robert Leflar, Arthur von Mehren and Russell Weintraub. The critics were united in their objections that fixed choice-of-law rules based on → territoriality were misconceived and could not resolve all cases; however, no single solution was offered in its place and the alternatives were varied. Both Currie and Cavers embraced ‘governmental interest analysis’ to resolve choice-of-law issues (→ Interest and policy analysis in private international law). That approach urged courts to determine whether the purpose underlying a domestic rule was furthered when foreign elements were involved. When only one state’s policy was furthered, the case was classified as a ‘false conflict’ and that state’s law was to be applied. When both states had policies that would be furthered on the particular facts, the case was designated a ‘true conflict’. Currie’s solution to the ‘true conflict’ was to apply forum law; Cavers offered certain ‘principles of preference’ to resolve such conflicts in order to achieve the same result regardless of the forum in which the case was brought. Leflar preferred a multi-factored test of which ‘interest analysis’ was a piece, but he urged application of the ‘better law’ to resolve the case (→ Better law approach). Arthur von Mehren and Russell Weintraub also accepted the distinction between ‘true’ and ‘false conflicts’ but in true conflict situations believed that a weighing of policies was the appropriate way to resolve a ‘true conflict’. William Baxter embraced ‘interest analysis’ as well, but offered a principle of ‘comparative impairment’ to resolve true conflicts. Under his approach, a court, in assessing each state’s interest, was to consider the impact on each of the respective states if its law were not used to decide the case. Courts in many states were also persuaded by the criticisms of the traditional approach to → choice of law and began to move away from application of the rigid territorially-based rules of the First Restatement. However, there was little agreement as to what approach should be adopted in its place. The American Law Institute undertook the task of producing a Second Restatement of Conflict of Laws that was begun in the 1950s, went through multiple drafts throughout the 1960s, and was eventually published in 1971 (American Law Institute, Restatement of the Law, Second: Conflict of Laws 2d, St. Paul 1971). Over the course of the next 50 years, a majority of, but not all, states followed the Restatement (Second). However, even those states that followed the Restatement (Second) differed as to whether its central concept—the state with the ‘most significant relationship’—looked to identify the state with the strongest ‘territorial’ connection or invited an analysis of competing interests as embraced in the approach of Professors Cavers and Currie. Other states adopted their own approaches to choice of law, some adopting one of the various brands of interest analysis, some looking to the state with the ‘most significant contacts’ and others retaining the traditional Restatement (First) system of hard and fast rules. The result was that no single choice-of-law regime emerged from the ‘conflicts revolution’. Rather, the effect of the choice-of-law revolution was by and large a rejection of the prior dominant regime of fixed rules but without a consensus of what should replace it. The ‘revolution’ occurred primarily in the fields of tort and contract, but its influence pervaded other areas of law as well, including wills and → trusts, inter vivos transfers of property, marriage and statutes of limitations. The ‘conflicts revolution’, like many revolutions, did not come without costs. For example, the ‘revolution’ has been described by Judge Richard Posner of the Court of Appeals for the Seventh Circuit as a ‘legal reform that miscarried’. The late Supreme Court Justice Antonin Scalia observed that the revolution had made the entire subject of conflict of laws ‘incomprehensible’.

Source Publication

Encyclopedia of Private International Law

Source Editors/Authors

Jürgen Basedow, Giesela Rühl, Franco Ferrari, Pedro de Miguel Asensio

Publication Date

2017

Volume Number

1: Entries A-H

(American) Conflict of Laws Revolution

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