Conflict of Laws, 2d
Author:
Roosevelt, Kermit
Edition:
2nd
Copyright Date:
2015
19 chapters
have results for conflict of laws
Chapter 5. Federal-State Conflicts 121 results (showing 5 best matches)
- In the preceding chapter, we looked at federal constitutional constraints on state choice-of-law rules. But there are other ways in which state and federal law can interact in the field of conflicts. First, a federal court hearing a case must decide which issues are governed by federal law and which by state law—and then, perhaps, state’s law. This is the problem, familiar from civil procedure. Second, federal law may come into conflict with state law. How to resolve these conflicts is an easy question. The Constitution gives us a rule of priority in the Supremacy Clause of Article VI: if federal and state law conflict, federal law prevails. The harder question is how to decide when such conflicts exist. This is the problem of preemption, and relatedly of the creation of federal common law. This chapter treats those problems in turn.
- Last, the fact that federal law prevail in a conflict with state law should tell us something about conflicts between sister state laws. It tells us, I think, that they are substantive—that choice of law is about resolving clashes between substantive rights created by different sovereigns. It is not merely a procedural matter of choosing the appropriate law according to whatever rules the forum thinks are appropriate.
- But preemption it is also an important topic because it may teach us something about choice of law. We can think of preemption as a conflicts problem from the two-step perspective. First, courts must ask whether the facts of a particular case come within the scope of the relevant federal law, whether the law is best construed as granting rights to the parties. Second, they must resolve conflicts with state law. (This second step is of course easy because of the Supremacy Clause: the rule of priority is simply that federal law prevails.)
- Preemption is not always included in conflicts courses, but it should be. It is, for one thing, as clear an example as you can find of the conflict of laws. It is also of substantial practical importance. Corporations are always looking for defenses against state tort claims, and preemption is one of the most frequent battlegrounds in that struggle.
- Thinking about preemption as an example of choice of law can show us three things. First, and most obviously, the analysis that courts perform in deciding whether to invoke conflict preemption is quite similar to the analysis Brainerd Currie recommended as a means to determine the scope of state law. In each case, the court must ask what the policies behind the law are, and whether applying the law to the facts before it would promote those policies. To some extent, then, the existence of conflict preemption suggests
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Chapter 4. Constitutional Constraints on Choice of Law 177 results (showing 5 best matches)
- The traditional approach to choice of law probably does a relatively good job of capturing the understandings of those who drafted and ratified the original Constitution and the Fourteenth Amendment. Conflicts does not seem to have been a major topic of debate at either time, although the Full Faith and Credit and Privileges and Immunities Clauses are clearly directed to conflict of laws issues. (I refer here to “conflicts” rather than “choice of law” because full faith and credit also speaks to recognition of judgments, which is a conflicts topic but not a choice of law.) The reason that conflicts topics were not contentious is probably that they seemed relatively straightforward. Given the dominant understanding of the nature of law, conflicts problems were easy.
- If we follow the selfish state version of interest analysis, we will get some troubling results. Mary’s suit against Del is a true conflict. Mary has a claim under Maryland law and Del has a defense under Delaware law. Following Currie’s suggestion, the forum will resolve the conflict in favor of its own law, so Del wins. Del’s suit against Mary, however, is a false conflict. Del has a claim under Delaware law and Mary has no defense, because the benefits of the Delaware guest statute are reserved for locals. Thus, Del wins this suit too.
- The analysis will be clearer if we think first about what rights the parties can invoke under the different states’ laws, and then about what rules of priority might be used to resolve conflicts between the rights. Mary has a claim under Maryland law. She is a Maryland resident, and Maryland law is intended both to compensate her for her injuries and deter the wrongful conduct that harmed her. Del has a defense under Delaware law; he is a Delaware resident and Delaware’s guest statute is intended to protect Delaware drivers. , then, is a true conflict.
- , I think, is actually an example of the kind of full faith and credit cases that were standard on the original understanding but now arise only infrequently: cases where legislative jurisdiction does not overlap. In a world where laws are territorially limited, I’ve said, conflicts between them are extremely rare. The typical full faith and credit question will not be whose law prevails in a conflict, but simply whether foreign law will be recognized or not, and full faith and credit demands that it shall be recognized.
- is best read to endorse a form of balancing. With some effort, though, one might also extract the traditional idea that rights created by another state’s law must (almost) always be respected. This view of full faith and credit, I have suggested, is probably close to the original understanding, and it made a fair amount of sense in a world in which state legislative jurisdiction did not overlap and conflicts between state laws could not arise. But it obviously makes no sense in a world in which conflicts do arise; it would mean, as the Court put it, that “the statute of each state must be enforced in the courts of the other, but cannot be in its own.” If we read this way, it favored Vermont law simply because the suit was brought in New Hampshire; had Clapper’s administrator sued in Vermont, full faith and credit would have compelled recognition of New Hampshire’s common law rights.
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Introduction 8 results (showing 5 best matches)
- Conflict of laws, described most generally, is the field of law that deals with the situation that arises when the regulatory powers of different authorities overlap. So phrased, this description fits a wide range of circumstances. Indeed, one of the attractions of conflicts is that its insights can be applied to so many other areas—administrative law, for instance, or constitutional law, or many puzzles in federal-state relations not usually thought to present a conflicts issue.
- The structure of the book is designed to follow that typically used in conflicts courses and in most of the leading casebooks. Its first part addresses the core topic of choice of law, starting with the traditional approach and moving on to more modern proposals. Having looked at choice of law from the internal perspective of a state wrestling with the problem, it then considers the external constraints that federal law and the Constitution place on the choice-of-law enterprise. Part Two deals with the topics of judicial jurisdiction and recognition of judgments, which are frequently covered in conflicts courses. It also offers an analysis of conflicts issues as presented in the specific substantive area of family law, and in the international setting.
- As taught in law school, however, conflicts usually comprises the core area of choice of law and some subsidiary related fields, primarily judicial jurisdiction and recognition of judgments. This book focuses on those topics, though it will at times suggest some of the broader applications. It is in the nature of an opinionated guide to the conflict of laws. That is, it is designed primarily to be a useful aid for the student who is taking conflicts, or a reference for the student or attorney who has not, but it seeks also to evaluate different approaches and to demonstrate the value of looking at conflicts from a particular perspective.
- The book suggests that the proper way to analyze this problem consists of two stages, which it calls . First, the court must determine the scope of State A and State B law. It must determine, that is, whether State A and/or State B law reach these facts, whether they grant rights (claims or defenses) to the parties. Sometimes the problem can be resolved at this first stage, through scope analysis alone. If it turns out that only one state’s law reaches the case, the case should obviously be decided under that law. If each state’s law about passenger-driver suits stated that it applied “only to car accidents occurring in this state” then the accident would fall within the scope of State B’s law and not State A’s. the scope of both State A and State B law, and those laws conflict, the court must decide which of the two laws is to be given priority. It then decides the case under that law.
- Most centrally, the book presents the choice-of-law problem through the analytic lens of what I call the two-step model. A choice-of-law problem arises when a court must decide which of multiple candidate laws will supply the rule of decision for a case. In its most common form, this requires a court to choose between the laws of one or more states. Suppose, for example, that the parties are two residents of State A involved in a one-car accident in State B. Whose law should control whether the passenger can sue the driver, State A’s or State B’s?
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Chapter 2. Modern Approaches I (Interest Analysis) 224 results (showing 5 best matches)
- A starker conflict can be produced if we suppose that the defendant invokes a statute that actually bars recovery—perhaps he is a police officer acting in the course of his duties and the legislature has immunized such people for ordinary negligence. Now there is a conflict between the tort law right of recovery and the statutory immunity. To resolve this conflict we need what I have called a
- In these truly intractable conflicts, we would probably expect a court to follow the directives of forum law. A disinterested forum (for example, Louisiana) would have to resolve the conflict on some other ground, perhaps by following the foreign rule of priority closest to forum law.
- It is hard to be confident about exactly what the legislature aimed to achieve, and in fact legislatures probably often have multiple and perhaps conflicting goals. Finding false conflicts in these circumstances requires a degree of willful blindness on the part of judges, since with a variety of policies behind most laws, most contacts will be enough to trigger an interest.
- This statement of interest analysis implies the correct resolution for false conflicts and unprovided-for cases. In false conflicts, only one law creates rights or obligations, and obviously those should be enforced. In unprovided-for cases, no law creates rights or obligations, and therefore the plaintiff cannot recover. These results do not obtain because they are good policy solutions to the “problems” of false conflicts and unprovided-for cases; they follow directly from the understanding of interest analysis outlined above. No such solution follows for true conflicts; there courts must resort to some rule of priority selected on policy grounds. Since I attempt here only to set out the conceptual structure of interest analysis, I make no recommendations for a rule of priority.
- Professor Larry Kramer suggests that aggregate policy satisfaction can be advanced through the application of “policy-selecting rules” that resolve true conflicts by appeal to generally For instance, states generally share the policy that substantive law takes priority over procedure. If a true conflict features a clash between the substantive law of one state and the procedural law of another, it will likely maximize state policy satisfaction in the long run to give priority to substantive law.
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Chapter 3. Modern Approaches II (The Second Restatement and Better Law) 136 results (showing 5 best matches)
- Mass Disasters and the Conflict of Laws
- If the plaintiffs’ home laws were more defendant-friendly, a court would have to decide if those laws were intended to grant defenses to out-of-state manufacturers in such cases. (They might do so in order to encourage manufacturers to ship products into the state.) If they were, there would be a conflict between the rights created by the manufacturer’s home law and that of the plaintiff. If this conflict was resolved in favor of the plaintiff’s home law, the Thus, the suggestion is not a panacea. In some cases, however, it should allow class treatment when conventional views of choice of law would obscure the possibility.
- How do we decide which of these legal rights gets priority? We know that the California defense prevails over the California claim; that is simply how California law works. So what we are left with is the conflict between Mrs. Haumschild’s claim under Wisconsin law and her husband’s defense under California law. We need a rule of priority that will resolve it.
- If I am right about how to understand interest analysis, then this hesitation is unjustifiable. The theory itself directs courts to treat foreign choice-of-law rules not merely as relevant but as binding. They are statements about the scope of foreign laws, and a court trying to ascertain scope must respect them. But even if I am wrong about how to understand interest analysis, I think the Constitution requires this respect. If we think about choice of law from the two-step perspective, the status of foreign choice-of-law rules is relatively clear. State A’s choice-of-law rules set the scope of State A’s law, and no other state’s court has the power to contradict them. (Whether State A law should prevail in a conflict with State B law is a different question, and what State A law says will not bind State B courts.)
- Based on this chart, interest analysis may seem somewhat more appealing, at least relatively speaking. The traditional approach relies solely on the territorial rule of scope in order to eliminate the possibility of conflict. That is simply unworkable; even if the forum decides that territorial scope is a good idea for its laws, it cannot impose that choice on other states. The prospect of conflicts between laws must be faced, and the traditional approach has no reasoned way to do so.
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Chapter 9. International Conflicts 116 results (showing 5 best matches)
- For a time, the jurisprudence with respect to federal statutory law seemed to be keeping pace. Justice Holmes’ analysis of the scope of federal law in was, in the words of Larry Kramer, “pure conflict of laws,” citing familiar conflicts cases such as and even a leading conflicts treatise by the , of extending the Sherman Act’s prohibitions to conduct abroad affecting commerce within the United States, he commented that limitations on the extraterritorial scope of federal statutes “generally correspond to those fixed by the ‘Conflict of Laws.’” In the middle of the twentieth century, the Supreme Court analyzed the scope of the maritime regulations in the Jones Act with sophistication sufficient to win praise from Brainerd Currie.
- So it seems likely that the Court simply failed to realize it was confronting a choice-of-law question. That failure led it to an anachronistic approach to determining statutory scope, and it did not augur well for the Court’s analysis of conflicts between U.S. and foreign law. In , the Court did mention the possibility of a conflict, but it seemed to assume that the only possible course of action in such a case would be to decide the case under U.S. law. (It seemed to think, that is, that if U.S. law “applied” in terms of its scope, courts would be required to “apply” that law in terms of giving it priority over contrary foreign law—a failure to distinguish between the two steps of the choice-of-law analysis that I have suggested may stem from careless use of the word “apply.”) In the Court’s defense, one could observe that granting universal priority to forum law was indeed Brainerd Currie’s initial suggestion. But we have already seen that this initial suggestion was superseded...
- The distinction, however, is simple. Unless Saudi Arabian law intends to authorize U.S. employers to discriminate against their employees in Saudi Arabia (a possibility, but one the Court did not invoke or investigate), does not present a potential conflict between U.S. and foreign law. If Title VII reached the relationship between a U.S. employer and employee abroad, the case would be a false conflict. With a foreign employer, however, the likelihood of a conflict is much greater. Assuming the laws differ, Saudi Arabia likely does intend to authorize its employers to engage in whatever conduct it does not forbid. The distinction the Court could not see is the one between true and false conflicts, which did not exist in 1949 but, to put it mildly, was well established in the literature by 1991.
- The Zones of Cyberspace
- See Kramer, supra note 3 at 192–93 (discussing roughly contemporaneous erosion of territoriality in international law, personal jurisdiction, and conflict of laws).
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Chapter 1. The Traditional Approach 142 results (showing 5 best matches)
- Why does it matter if the place of contracting is determined by law rather than fact? It matters because while there is only one set of facts, there are many different laws. That is why the field of conflicts exists. If these laws differ with respect to they locate a contract, they will differ also in the law they select under the traditional approach.
- To counter this argument, Walter Wheeler Cook came up with the theory that courts never actually apply foreign law; they just sometimes shape their own law to resemble it. Thus, a State A court can enforce rights under State A law that has been shaped to resemble State B law without worrying about whether a State B court would agree that State B rights actually exist. See W.W. Cook, The Logical and Legal Bases of the Conflict of Laws 239–51 (1942). This “local law theory” is yet another piece of conflicts esoterica that can be safely forgotten; one commentator has referred to it as “empty luggage.” Hessel E. Yntema,
- The Law of Conflict of Laws
- In practice, even Beale accepted the use of renvoi in certain limited circumstances, most notably those involving title to land and divorce decrees. In such cases, Beale suggested, the paramount importance of uniformity meant that when the First Restatement provided that they should be governed by the law of the situs and of the parties’ domicile, respectively, that “law” included “the Conflict of Laws rules of that state.”
- According to Beale, the remedy would actually be granted under State B law, and the State B court would consider the existence of the State A rights as a fact entitling the plaintiff to a State B remedy. See 1 B , supra note 3, § 5.4, at 53. Most modern states have dropped this distinction and consider remedy to come from foreign law. So did the First Restatement, as far as the measure of damages is concerned. See Restatement of Conflict of Laws (1934) § 412.
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Chapter 7. Recognition of Judgments 79 results (showing 5 best matches)
- How substantial a reason is required varies from clause to clause. The Privileges and Immunities Clause, we have seen, is relatively demanding. It imposes something like intermediate scrutiny on discrimination against out-of-staters. The Full Faith and Credit Clause, as regards sister-state law, is now relatively nugatory. As the Court has framed the issue, a state may apply its own law, rather than the contrary law of a sister state, whenever it has contacts with the case that create a local interest. Since, I have suggested, the question of whether a state has an interest is just the question of whether a case falls within the scope of its law, this amounts to the rule that a state can apply its own law whenever that law applies. Or in the slightly clearer terms I have introduced, a state can give priority to its own law whenever it conflicts with sister-state law. (What it cannot do is refuse to recognize sister-state law when there is no conflict; that is the
- Restatement, Second, of Conflict of Laws § 97, comment d.
- So F-2 interests and policies by themselves will not justify a state in refusing recognition to a sister-state judgment. But what if those interests and policies take the form of law? I said in the introduction that the full faith and credit analyses for law and judgments could to some extent be harmonized if we thought of enforcement of judgments as a situation where one state’s law creates rights and there are no contrary rights under F-2 law. In most cases that will be true—if a prevailing party seeks to enforce judgment from F-1, it is unlikely that the other party can identify rights under F-2 law that entitle him to resist. But he might be able to—there could be rights that are in some way inconsistent or in conflict with the judgment. What happens then?
- recognition of judgment regime as analogous to the recognition of law regime. In both cases, we could say, the sister-state law or judgment must be recognized unless contrary local rights exist. The difference is that while contrary local rights will frequently exist with regard to sister-state law, they will almost never exist with regard to sister-state judgments. (Thus, under a choice-of-law regime in which rights do not conflict, such as territoriality, the treatment of sister-state laws will more closely resemble that of judgments.) The significant remaining difference is that with respect to sister-state law, even in the territorialist regime, the public policy exception allowed a state to close its courthouse doors and refuse to hear a foreign cause of action contrary to a fundamental local policy. There is no such public policy exception to recognition of judgments.
- So it would make good sense for the preclusive effects of a federal court exercising diversity jurisdiction in New York to be determined by New York law. There is, however, a problem with allowing states to have the last word on the effect of federal judgments. It seems inconsistent with federal supremacy as a general matter, and in specific cases it might threaten federal interests. The solution, which the Court chose in , is to hold that the relevant preclusion rules are federal, but that they are drawn to mirror the laws of the state in which the court sits, absent exceptional circumstances. This achieves the desired uniformity between the state and federal courts within a state, while also effectively reserving a federal veto power should the state rule somehow conflict with federal interests.
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Chapter 8. Family Law 42 results (showing 5 best matches)
- The Second Restatement, typically, provides that the validity of a marriage is governed by the law of the state with the most significant relationship to a particular issue. See Restatement, Second, of Conflict of Laws § 283[1]. But it goes on to note that a marriage valid where celebrated will be recognized everywhere unless contrary to the strong public policy of another state which had the most significant relationship at the time of marriage, thus adopting a form of the standard rule and exception. See
- In consequence, the prospect of making use of the laws of one of the few states to adopt a more permissive divorce regime, notably Florida and Nevada, was tempting, particularly for those whose spouses would not cooperate. The practice of ex parte migratory divorce, where only one spouse was present in the divorcing jurisdiction, raised an obvious conflicts question. The spouse who remains at home enjoys a marital relationship protected by his or her home law, and the one who travels is seeking to dissolve it under the law of another state. Whose law will prevail? The answer turns out to be a bit of a compromise, though largely a victory for
- It should be no surprise that family law is one of the areas in which knotty conflicts problems arise. They tend to raise questions of status—when must one state recognize marriages or divorces performed by another?—but there are also preclusion and jurisdictional matters in the mix. Perhaps surprisingly, marriage is in some ways the simplest of the issues, and this chapter starts with the basic marriage rule before moving on to divorce and child custody and support.
- In Oklahoma, the legislature took a further step, amending its adoption statute to provide for nonrecognition of foreign adoptions by same-sex couples. This law was held unconstitutional as a violation of the Full Faith and Credit Clause in That seems pretty clearly the correct result, and so same-sex adoption should not give rise to enduring conflicts issues.
- Same-Sex Divorce in the Conflict of Laws
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- I owe substantial debts of gratitude to the colleagues and students who have helped me refine my thinking about conflict of laws over the years. In particular, I am grateful to Herma Hill Kay, Larry Kramer, and the late David Currie, who invited me to join their casebook as a co-author. I have learned a tremendous amount from them. For assistance in the preparation of this book, I thank Jason Levine, Michael Packard, and Howard Wu, three Penn students who read the manuscript and warned me when it got abstruse.
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Chapter 6. Judicial Jurisdiction 75 results (showing 5 best matches)
- A second wave of scholarship treated these claims skeptically, pointing to the continued significance of geographical factors such as the location of end-users. coming out, it appears likely that the Internet will be assimilated into conventional choice of law in the same way as other technologies that made territorial analysis more complicated. The idea of cyberlaw may end up sounding like the law of the telephone, or, as Judge Frank Easterbrook once put it, the law of the horse.
- is certainly odd, but it is a consequence of characterization more than of the idea that the transferee court should apply the same law as the transferor. The reason that filing in Mississippi allowed the plaintiff to get the Mississippi limitations period was that while the limitations period is substantive for analysis (so that the federal court did what a Mississippi court would do), Mississippi deemed it procedural for choice-of-law purposes (so that a Mississippi court would use the Mississippi limitations period, rather than that of Pennsylvania, whose law created the cause of action). The point that a change of venue should not work a change of law seems sound.
- I do not cover the topic of abstention in this book, although it does present the general conflicts question of how to reconcile overlapping authorities. For a survey, see, e.g., Leonard Birdsong,
- Cyberspace and the Law of the Horse
- But if hard cases make bad law, easy cases often make no law, or at least no new law. What does tell us that we did not already know? The most interesting part of is perhaps its formulation of the general jurisdiction requirement: a corporation is subject to general jurisdiction, the Court said, only when its contacts with the state are so constant and pervasive as to render it “at home” in the state. Paradigm examples of such states, the Court continued, are the corporation’s state of incorporation and principle place of business.
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Editorial Board 17 results (showing 5 best matches)
Index 62 results (showing 5 best matches)
Table of Contents 33 results (showing 5 best matches)
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- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
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Table of Cases 20 results (showing 5 best matches)
- Publication Date: October 28th, 2014
- ISBN: 9781609304652
- Subject: Conflict of Laws
- Series: Concepts and Insights
- Type: Hornbook Treatises
- Description: This title provides an analytical overview of the field of conflicts and explains all major choice-of-law approaches in simple and straightforward text. Separate chapters explore discrete conflicts issues, including personal jurisdiction, recognition of judgments, family law, and state-federal conflicts, including Erie and preemption. It covers the most recent Supreme Court cases on personal jurisdiction and extraterritorial application of federal law, as well as the latest examples of state choice of law approaches. Extensive description and analysis of leading cases make this book an excellent companion to a casebook as well as a resource for practitioners.