Chapter 1. The Territorial Approach to Choice of Law: Concepts and Limitations 171 results (showing 5 best matches)
- plays but a small role in domestic American conflicts law. In the vast majority of cases, references to foreign law made by the forum’s choice-of-law rules are to the “internal” law of the foreign state, meaning its substantive rule of decision. By and large, American conflicts law does not mess around with applying foreign choice-of-law rules. That is good news, because application of foreign conflicts rules would further complicate an already intricate problem. In addition, the majority of American conflicts theorists have rejected the principle. For example, Joseph Beale, architect of the “vested rights” theory rationalizing the territorial approach to conflicts, rejected it. Since, on his view, the location of certain events at certain times fixed the parties’ rights pursuant to the law of that place, there was no reason for the forum to consider that state’s conflicts rules; the choice-of-law reference should simply be to that state’s substantive law. Proponents of a more “...
- : The choice-of-law rules and principles applied by a court themselves constitute a body of law. In short,
- : The law of choice of law is invariably law; a court applies its own law (or, more precisely, its own law) of choice of law. (Sometimes you will see the phrase “ ”—Latin for “the law of the forum”—to refer to the application of forum law.) One immediate consequence of this fact is that, if the plaintiff is able to sue the defendant in two different states, each of whose choice-of-law principles differ from one another, a forum-shopping opportunity may arise for the plaintiff if the case features a conflicts problem: If each state’s court would resolve that conflicts problem differently, by “choosing” a different state’s substantive law from what the other state would, one of those outcomes may be more favorable for the plaintiff and will likely influence her choice of forum.
- idea might not have retained the interest that it has, at least for scholars of American conflicts law, were it not for the picturesque (and mind-bending) logical problems to which it can lead. The simplest variation occurs when a case is brought in State A, whose choice-of-law principles point to application of the law of State B. State B’s choice-of-law rule, however, points to application of the law of State A. If we employ the principle, and each successive choice-of-law reference includes the “whole law” of the chosen state, we have a problem of infinite regress: We would be pushed from State A, to State B, back to State A, and so on.
- We haven’t said much about it yet, but the reason we refer to the 1934 Restatement as the “First Restatement” is that there is a Restatement (Second) of Conflict of Laws, promulgated in 1971. As you’ll learn in the next chapter, the general approach to choice of law taken by the Second Restatement is that the law of the state having the “most significant relationship” to the dispute should apply. This basic principle applies to conflicts involving statutes of limitations as it does to other conflicts. However, the Second Restatement goes on to say:
- Open Chapter
Chapter 8. Conflict of Laws in the International Sphere 194 results (showing 5 best matches)
- The very concept of “choice of law” rests in part on the principle that foreign law—that is, law other than the municipal law of the forum—will sometimes be applied by the forum. International law constitutes a body of law that most nations regard as having some kind of force. To what extent are the rules and principles of international law the “law of the United States” and therefore rules of decision that U.S. courts must apply in appropriate cases? Does it matter which one of the several sources of international law—treaties and conventions, custom, decisions by international tribunals, and so on—is the basis for the rule of international law at issue in the particular case? Although these questions are not always given much attention in American casebooks on conflict of laws, in some respects they certainly qualify as “conflicts” problems. At times, American courts may be faced with the question whether a rule of international law supersedes otherwise applicable state or federal...
- Some international conflicts problems heard in U.S. courts implicate principles governing the foreign relations law of the United States. Thus, such topics as the Act-of-State Doctrine and pre-emption of state laws affecting the conduct of U.S. foreign policy must play a role in any discussion of international conflicts as seen from the U.S. point of view.
- The problem of conflict of laws, of course, long predates the creation of the American republic. The principles that have long influenced American conflicts law were developed and debated by civil-law jurists in large part to resolve conflicts between the laws of states that today we would call sovereign—states, that is, that were under no enforceable duty to respect or apply foreign law. And while most of this book has been preoccupied with conflicts in the American (or “domestic”) context, between the laws of different states of the United States, conflicts in the international sphere obviously remain an important issue—one that the process of globalization has made increasingly salient.
- But—apart from the fact that, in an age of globalization, educated lawyers should know something about how other legal systems work—comparative conflicts law can be quite relevant to conflicts decisions made by U.S. courts. For example, knowledge of how other parts of the world handle conflicts—in particular, the circumstances under which courts elsewhere regard it as appropriate to apply the substantive or “internal” law of the forum—can assist a U.S. court in determining whether a particular extraterritorial application of U.S. law would be regarded elsewhere as exorbitant. As noted in our discussion of the presumption against extraterritoriality, the Restatement (Third) of the Foreign Relations Law of the United States advises that U.S. courts should not apply U.S. law extraterritorially if such application would be “unreasonable.” The “reasonableness” of an assertion of legislative jurisdiction depends in part on how other states with a plausible interest in the matter view
- . Consider it as a conflicts problem. Then-conventional principles of choice of law indicated that Cuban law should apply, which would validate the expropriation and subsequent transactions based on it. The Act-of-State Doctrine as explained in such earlier cases as , however, indicated that law of the locus in such cases ought not to be principle or a one? By the time of principle, had reconceived the Act-of-State Doctrine as a rule in its own right. According to this argument, the doctrine simply stated that the situation called for the application of conflict-of-laws principles, and that the law of the expropriating state in the ” rule was subject to exceptions, such as the familiar “public policy” exception and the principle that a law of the locus violating international law could not legitimately be given effect. Application of one or both of those exceptions thus could result in the American court’s refusing to give effect to the expropriation.
- Open Chapter
Chapter 2. Modern Approaches to Choice of Law 221 results (showing 5 best matches)
- The concept of the “unprovided-for case” is obviously problematic. It underscores a confusion or ambiguity that can easily arise when considering the interest analysis idea. Currie, of course, began with the observation that, in an apparent conflicts situation, the law of both states “applied” (in general, the laws did not specify any geographical limitation); interest analysis was a way of applying principles of interpretation and construction to resolve what is, in conventional parlance, a conflict of laws. But, having identified a false conflict, it is an easy (though questionable) step to the conclusion that the law of the state lacking a cognizable interest actually “apply” in the particular case. This seems confusing. A conflict of laws that interest analysis deems to be a “false conflict” is still a conflict of laws, isn’t it?
- In the face of all the esoterica about “true” and “false” conflicts, “comparative impairment,” “principles of preference,” and “policy-selecting rules,” some courts and scholars have advocated a return to the good old jurisdiction-selecting rules of the territorial variety. And, of course, many had never been enchanted by interest analysis to begin with. Much of this criticism by jurists, not only of interest analysis but also of other modern approaches such as the Second Restatement (considered below), has focused on their nature, turning Conflict of Laws into a “veritable playpen for judicial policymakers,” in the acidulous judgment of one state supreme court justice. approach had understated its advantages and even its consonance with basic human intuitions about justice and sovereignty. In this view, one could recognize the advantages of rules in avoiding the subjectivity of more ...and flawed theoretical justification for them. Of course, those who had rejected the... ...of...
- A somewhat larger number of states have adopted the Second Restatement for conflicts in contract cases than have done so for conflicts in tort cases. In general, conflicts in contract cases, whatever methodology is used, produces less controversy than conflicts in tort cases. The widespread use of choice-of-law clauses in contracts, at least by sophisticated economic actors, is one reason for this. Another reason is that large areas of commercial law are governed by the Uniform Commercial Code, which includes its own choice-of-law principles and which in any case is designed to provide a substantial measure of uniformity to commercial law. This is not to say that conflicts in contract law do not frequently arise, because they do, particularly with respect to matters of contract interpretation. It is simply that, in general, differences between the states in the law of personal injury (particularly in such areas as product liability, mass torts, medical malpractice, measure of...
- California is the one state to have adopted these “comparative impairment” principles for use in conflicts cases. (Note that California courts only apply this method in tort cases, and tend to apply some version of Second Restatement principles in contract conflicts.) That California has been willing to make such a move in its law of conflicts is not surprising, as the California Supreme Court, under the intellectual leadership of Justice Roger Traynor, was one of the first state courts openly to question the merits of principles in the 1950s and 1960s. Two cases from the 1970s illustrate the “comparative impairment” analysis in action. raised a classic conflict in policies between the states of California and Nevada. At the time, California imposed liability on tavern owners and other suppliers of alcoholic beverages for injuries caused to third parties by consumers of such beverages inappropriately served them by the tavern (that is, when it was apparent the consumer was already...
- Comparing Statutory and Common-Law Rules of Decision.
- Open Chapter
Chapter 6. Conflict of Laws and Domestic Relations 121 results (showing 5 best matches)
- Long before the founding of the American republic, the jurists of civil-law nations developed a basic principle to deal with such conflicts of laws: “Marriages valid where celebrated are valid everywhere” (this is essentially a rule of for questions of a marriage’s validity). Observation of this principle meant that the forum would often recognize a marriage performed outside the forum as legal and valid, even though forum law did not itself recognize such a union as legal. Like all traditional conflicts principles, this one assumed that the forum retained authority to disregard it in cases where recognition might threaten public order or undermine the forum’s fundamental policy. The idea was that, all in all, it will ordinarily be better for the forum to recognize marriages valid where performed, even if they are not valid under forum law; enormous disruptions might arise if, for example, a couple’s children were regarded as legitimate in one place but not in another. Provincial...of
- Family law has long presented difficult problems for conflict of laws. Marriage, divorce, child custody, and child and spousal support, as well as issues of estate law that are ancillary to the law of domestic relations, can be enormously complex even when multiple jurisdictions are not involved; when they are, conventional conflicts principles often seem poorly adapted to the problems raised. (Most of the important conflicts problems involving family law pertain to recognition of judgments, rather than choice of law.) The judgments rendered by courts dealing with domestic relations issues are not always as “neat and clean” as judgments that pertain to traditional common-law actions for damages; the interjurisdictional effect of divorces or custody or support decrees can raise unexpected difficulties.
- Once we put the question this way, one could see the problem actually as one of choice of law (although the Court did not explicitly describe it in these terms). We have a conflict between two legal rules, those belonging to Nevada and North Carolina respectively, concerning the legal meaning of “domicile”—just as we might have a conflict concerning what kind of behavior constitutes negligence or acceptance of a contractual offer. Seen in this light, the Nevada court would have been in the position of deciding, in the first instance, whether Nevada or North Carolina law should apply to whether Williams and Hendrix had established “residence” or “domicile” in Nevada. We might suspect that, in light of the lovebirds’ long residence in North Carolina and the location there of their marriages, the natural conclusion is that the Nevada court should apply North Carolina law governing domicile for purposes of divorce—presumably resulting in a refusal to render the divorce decrees. Of...
- A good example is the cause of action, recognized in some form in all the states, for wrongful death. This brings us all the way back to the beginning of Chapter 1, where we itemized as one of our paradigm examples of a conflicts problem the auto accident—due to the negligence of Patricia, an Alabama domiciliary—that ended the life of Edward, who had been married to Philip under the law of Massachusetts. Among the statutory beneficiaries of wrongful death statutes—those who have standing to bring such a claim and for whose benefit any award is made—is the surviving spouse. Unless state law has provided otherwise, the term “spouse” in these statutes will have one meaning in states that recognize same-sex marriage and another meaning in other states. Assume that Philip brought a successful wrongful-death case in Massachusetts court against ...had caused Edward’s death. Must the courts of Alabama, where Patricia has assets that can be used to pay the judgment, recognize and enforce the...
- It is thus no exaggeration to say that full faith and credit and the complexities of our federal system have played an important, if secondary, role in the development of the law of divorce in the United States. The importance of interstate recognition problems was amplified by the fact that not all states substantially liberalized their divorce laws, and at any rate did not do so at the same pace; under these circumstances, problems of conflict of laws and, in particular, recognition of judgments, grew fruitful and multiplied.
- Open Chapter
Chapter 3. A Few Areas of Modern Interest 108 results (showing 5 best matches)
- Historically and philosophically, contract law rests on somewhat different premises. The basic principle that common-law courts will enforce private agreements is not simply a “rule of positive law” that some jurisdictions recognize and others do not, in the way that some jurisdictions recognize limitations on punitive damages and others do not. It is a basic principle of Anglo-American jurisprudence that, historically at least, finds its source in the customs and practices of private parties, not in the sovereign prerogative of the state to set social policy. This conception of contract law, emphasizing the intentions and preferences of the parties, underlay the development of the basic principle for conflicts of law in contract matters. The late-eighteenth-century conflicts decisions by Lord Mansfield grounded the that the law of the place of the contract would govern any disputes that might arise.
- Enforcement of Contractual Choice-of-Law Provisions.
- Of course, there are many examples of statutes that govern conflicts with respect to particular kinds of issues. For example, in Chapter 1, we discussed borrowing statutes in connection with statutory limitations periods. These statutes direct the forum to apply a foreign statute of limitations in certain circumstances, even if the forum would ordinarily apply for its limitations principle. Another example is the choice-of-law provisions of the Uniform Commercial Code, discussed later in this Chapter. We also discuss, later in this Chapter, the problem of conflicts in auto insurance cases; some of these conflicts are governed by state statutory provisions. Questions of probate and testamentary succession can generate many problems of both choice of law and recognition of judgments, for example because conventional doctrine holds that most such questions are governed by the law of the decedent’s domicile, but that ...states have statutes that deal with some (but far from all) of...
- All the cases on choice of law that we saw in Chapters 1 and 2—and, for that matter, virtually all such American cases that we will see elsewhere in this book—feature courts applying conflicts principles in common-law fashion. That is, the forum’s law of choice of law in these cases is to be found in case law, not in statutes. That has been the case from the earliest days of the Republic. One historical exception is Louisiana; consistent with the civil-law roots of Louisiana law, the choice-of-law rules of that state are codified. And, as noted at the end of this section, Oregon has recently codified its law of choice of law in the areas of contracts, torts, and other non-contractual obligations.
- Not surprisingly, automobile insurance policies regularly produce knotty conflicts problems. Obviously, not every state follows the same substantive law principles with respect to auto insurance. Presumably many disputes that involve solely the policyholder and the underwriter will be governed by the law selected in the policy agreement (or, the law of the forum, as per the statutes described above if one exists in the forum). But many auto insurance conflicts are not this simple. Since somewhat fewer than half of the states in the United States provide for some variant of no-fault liability in auto accident cases, and since the laws of even those states differ significantly from one another in numerous respects, many kinds of conflicts can easily arise. Some, even if not resolved by a choice-of-law provision in the agreement, are resolved by state statutes that determine the territorial reach of policies issued to domiciliaries. But even these expedients do not provide for all...
- Open Chapter
Chapter 4. Constitutional Limitations on Choice of Law 99 results (showing 5 best matches)
- has come to stand for “the proposition that if a State has only an insignificant contact with the parties and the occurrence or transaction, application of its law is unconstitutional.” suggests that he had no such broad principle in mind, although that principle may proceed logically enough from his analysis. He may not even have thought of as a case about “conflict of laws” as such. Brandeis nowhere in his opinion refers to “conflict of laws,” “choice of law,” “law of the forum,” “ ,” or any of the conventional terms in use by jurists at the time when discussing the law of conflicts. What seems essential to Brandeis is Texas’s “attempt to impose a greater obligation than that agreed upon and to seize property in payment of the imposed obligation.” “[D]eprivation of property without due process of law” are the words used by Brandeis. This is the language of “substantive due process” and the rights of contract and property, ...power to apply forum law to a case, and previous...
- Although rarely understood as such, other constitutional provisions and doctrines themselves embody what appear to be choice-of-law principles. For example, the Supremacy Clause obliges courts (not to mention other governmental actors) to give effect to federal law when it comes into conflict with state law. In these situations, the Supremacy Clause functions as a sort of constitutional choice-of-law rule. The Commerce Clause, particularly in its “dormant” aspect, operates to displace certain state laws affecting interstate commerce, even if the competing federal policy is a “non-policy.” The general doctrine of pre-emption embodies some of the same ideas. And the “ doctrine,” to be discussed in Chapter 7, is often (if somewhat imprecisely) regarded as addressing a conflicts problem, by dictating the application of state (rather than federal) law in certain cases falling within the federal courts’ diversity jurisdiction. Some conflicts problems potentially involving the law of...
- Which type of discrimination is more troubling—that in which an out-of-state party gets an outcome less favorable than an equivalently situated in-stater, or that in which the application of interest analysis seems systematically to favor forum law at the expense of foreign law? That is a question as to which reasonable people will disagree. Defenders of interest analysis, at least the form of interest analysis that posits a more neutral solution for true conflicts than simply , argue that, so long as the interests of the out-of-state party’s state are given their proper due in the analysis—possibly (though not necessarily) resulting in application of that state’s law—there is no meaningful discrimination, regardless of which state’s law is ultimately applied and regardless of which party ultimately prevails. Interest analysis, and for that matter most modern choice-of-law methodologies, simply take as a given that the domicile of the parties is a legitimate consideration in... ...of...
- can only be understood in the light of the conceptual premises underlying conflict-of-laws reasoning at the time the case was decided. First, of course, it was axiomatic that the law of ) was the proper choice-of-law reference; even if Georgia law also recognized the no-fault vicarious liability principle embodied in the Alabama rule, the Georgia court must apply Alabama law, not its own. Second, and closely related, the theory underlying this then-prevailing principle was the “vested rights” idea. The Supreme Court emphasized that the Alabama cause of action was “transitory,” which was another way of saying that by virtue of his injury in Alabama under the circumstances of the case, plaintiff had acquired a right to compensation that must be recognized in courts everywhere. The Court did not think that Alabama could create a right, based on a personal injury, that by its very nature was “transitory,” and at the same time declare it to be “non-transitory”—unenforceable outside...
- decision rather severely. Even Justice Stevens in his concurrence acknowledged that the choice-of-law determination made by the Minnesota courts was “plainly unsound as a matter of normal conflicts law,” although he did not think it amounted to a violation of the Constitution. Justice Brennan’s itemization, one might say his exaggerated assessment, of the three contacts with Minnesota has struck almost everyone as unconvincing. And yet, as measured against the general principles announced in does not seem wrongly decided. Allstate was undoubtedly aware that the decedent commuted each working day to and from Minnesota, and for all Allstate knew an auto accident involving the decedent was as likely to occur in Minnesota as in Wisconsin. Although the application of Minnesota law in this particular case may have upset some of Allstate’s actuarial assumptions, it could hardly be said that it amounted to “unfair surprise.” Moreover, the extensive amount of business done by Allstate in...of
- Open Chapter
Introduction 11 results (showing 5 best matches)
- Chapter 5 treats the general area of Recognition of Judgments, which, after choice of law, is the most important component of American conflicts law. The question of judgments and is not confined, of course, to multistate problems (those in which the “recognition court” is in a different state from that in which the “rendering court” sits). Since an understanding of interjurisdictional recognition (which is a conflicts problem) relies heavily on an understanding of in the purely domestic context (which is not), I have devoted considerably more attention in Chapter 5 to a detailed review of the basics of than do the authors of most conflicts books. After that review, I proceed to a discussion of interjurisdictional preclusion, focusing on the constitutional principle of full faith and credit.
- Finally, in Chapter 8, we turn to Conflict of Laws in the international context. Just as the origins of American conflicts law is to be found in the law of nations and other “transnational” sources, it’s clear that the stage upon which the most important conflicts questions will appear in the next generation is the international sphere. Postponement of these issues to this book’s final chapter is, therefore, no comment on the importance of the topic. In keeping with the general focus of this book, most of Chapter 8 considers the question of international conflicts from the perspective of American courts. Examples include the extraterritorial application (by American courts) of U.S. law, the Act-of-State Doctrine, and recognition (by American courts) of foreign-country judgments. Most scholars and teachers of the subject agree that, over the next generation, a variety of international issues—for example, arbitration in international transactions, civil and criminal procedure in...
- underlying the law of Conflicts, which can be bewildering for experts on the subject, let alone students encountering it for the first time. Therefore, this is less a treatise or reference work that discusses every nook and cranny of conflicts law, or that summarizes hundreds of cases, than a discursive essay treating what I take to be the most salient aspects of Conflicts doctrine in the United States. In organizing the chapters that follow, I’ve been guided and motivated by the kinds of questions that have been raised by my students in the basic Conflicts course I have taught for a decade and a half. I’m hopeful that the approach I’ve taken here will also make this book useful for lawyers and law professors who know little about Conflicts but seek a basic introduction to the subject.
- The first four chapters concern choice of law. Chapter 1 treats the traditional or “territorial” approach to choice of law, which still informs much of modern conflicts law and which is the best vehicle for surfacing the basic conceptual problems raised by choice of law. Chapter 2 proceeds, in fairly conventional fashion, to consider more “modern” choice-of-law methodologies—those that have emerged in part as a reaction against the traditional approach. In Chapter 3, I focus briefly on a few topics of particular interest in present-day conflicts law. Since Chapters 1 and 2 tend to focus the reader’s attention on more general conceptual issues, Chapter 3 is designed to apprise the reader of specific conflicts issues that arise with some frequency today, and that raise particularly difficult problems. Chapter 4 concerns constitutional limits on choice of law—that is, limits on the power of the forum to apply forum law (rather than some other state’s law) to a dispute.
- The remainder of the book deals with more specific topics; I think that some exposure to each of these is important for conflicts students. Chapter 6 deals with the distinctive role of conflicts law, in particular interjurisdictional recognition, in the area of family law. The advent of same-sex marriage and the problems of interstate recognition that it raises makes this subject obviously quite topical, but interjurisdictional problems relating to child custody and support orders are equally pressing and have been for generations. Chapter 7 treats what is known as the “ has been the curricular possession of courses in Civil Procedure and Federal Courts and is not customarily treated as a conflicts issue, but I’ve discovered that my students no longer are exposed to my conflicts course, and I’ve included a chapter on it in this book as well. After discussing and its progeny, I briefly take up the issue of post- ...law, although I do so in much less detail than would an analogous...
- Open Chapter
Chapter 7. The Law Applied in Federal Courts 171 results (showing 5 best matches)
- • An important part of the rationale for the —is the importance of avoiding craven forum shopping and the “inequitable administration of the laws” that would result if a party could benefit from a choice between a federal rule in federal court or a state rule in state court. In cases like (choice of law) and (statute of limitations), where the plaintiff will often have a clear rationale militates in favor of applying the state rule in cases where there is actually a conflict between applicable state and federal rules. It is difficult to argue that this principle is decision itself was; as noted, it would seem perfectly constitutional for Congress to provide the federal courts with a choice-of-law principle or a federal limitations period, so there truly is a conflict between the federal rule and the state rule in itself, that no constitutionally valid federal law is even involved). The source of law directing the application of the state rule in these cases would seem most...
- A very important case decided by the Supreme Court in the wake of , the Court ruled that, in diversity cases, a federal court must apply the choice-of-law rules of the state in which it sits. That is, the federal courts sitting in diversity may not develop and apply, in common-law fashion, their own choice-of-law principles concerning which state’s substantive law should apply. (Note how the rule differs from the traditional conflicts rule that the law of choice of law is the law of the forum.) Since lawsuits featuring citizens of different states frequently raise conflicts issues, the Court’s holding in is an important one. On the surface, its decision seems simple and sensible enough. One alternative—which, to be sure, some eminent commentators have strongly advocated—would be for federal courts to develop and apply their own choice-of-law rules for diversity cases. Developing a nationally uniform set of rules in this manner would be a cumbersome and slow-moving process at best,...
- Since § 34 of the Judiciary Act of 1789 thus did not specify what “law” federal courts should apply in diversity cases where there was no applicable state statute, federal courts tended to act in such cases as they supposed English and American common-law courts had long acted. They did not assume, as we do today, that law applied by courts in any case must belong to a sovereign political unit (either a state or the United States); they considered themselves bound to consult a variety of sources of law, not all of them emanating from a sovereign state, each of which was relevant to particular kinds of cases. Obviously, cases arising under federal law were governed by federal law, and, as we have seen, applicable state statutes should govern in diversity cases. But other of disputes might be resolved by sources of law belonging to no particular sovereign. Cases arising out of armed conflict between nations, for example, might be governed by the laws of war, itself a species of the law
- Therefore, the constitutional reasoning of Brandeis’s opinion in cannot be based solely on the notion that the lawmaking power of the federal courts is coextensive with that of Congress. An additional element is necessary. That element, based on the doctrine of separation of powers, is that the federal courts should not make law
- Separation of Powers.
- Open Chapter
Chapter 5. Recognition of Judgments 262 results (showing 5 best matches)
- Most of the cases and examples we use to illustrate conflicts principles are conventional or “garden-variety” cases of “A versus B,” heard by a state trial court of general jurisdiction and involving traditional private law causes of action for money damages. Our leading case on full faith and credit, , is a good example: It concerned enforcement of a simple common-law judgment for contract damages. Many of the more difficult issues in preclusion, however, involve interstate recognition of non-traditional remedies, or of judgments rendered by administrative tribunals that typically apply only the forum’s rules of law. One area in which interjurisdictional preclusion has caused particular difficulty is that of workers’ compensation.
- The Law of Claim Preclusion Applied in Federal Courts.
- “Recognition of Judgments” is, after choice of law, the most important general topic in the modern conflict-of-laws class. Of course, many conflicts students will already have encountered the topic of “judgments” in their first-year class in Civil Procedure, as part of the study of res judicata (claim preclusion) and collateral estoppel (issue preclusion). All problems of recognition of judgments involve an effort by a party to deploy the results of Case A
- Now, at last, we turn to claim and issue preclusion specifically as those concepts relate to the subject of Conflict of Laws. As noted at the beginning of this Chapter, problems of claim and issue preclusion always involve a Case A and a Case B (where “A” is the first case and “B” is the second case); the question is whether, and to what extent, matters determined in Case A are barred from relitigation in Case B. Where both Case A and Case B are heard in the courts of the same state, the various preclusion issues obviously are governed by that state’s law. Claim and issue preclusion, and the general subject of recognition of judgments, become matters of interest to Conflict of Laws when Case A and Case B, respectively, are heard by the courts of states. To what extent are the courts of State B obliged to give effect to the judgments rendered by the courts of State A? In general, this problem is known as . The basic doctrine governing the problem is that of ...the central topics of...
- Technically, the “adequacy of representation” that is required for the certification of any class action refers to the adequacy with which the named plaintiffs will represent the interests of all members of the class. Nevertheless, the line between the adequacy provided by the has been substantially blurred in the case law. Allegations of inadequate representation are addressed as often to the conflicts on the part of class as to the conflicts on the part of named plaintiffs who do not share all the interests and incentives of the absent plaintiffs.
- Open Chapter
Index 470 results (showing 5 best matches)
- Conflict-of-laws principles, 447–48
- As choice-of-law principle for contracts conflicts, 122, 132–33
- Restatement of Conflict of Laws and treatment of contracts conflicts, 18–19
- Role in development of modern conflicts principles, 60
- Role in development of modern conflicts principles, 32, 60
- Open Chapter
Table of Contents 63 results (showing 5 best matches)
Summary of Contents 37 results (showing 5 best matches)
- G. Comparative Choice of Law: Conflicts Law Outside the United States
- D. Conflict of Laws and the Uniform Commercial Code
- Chapter 6. Conflict of Laws and Domestic Relations
- Chapter 8. Conflict of Laws in the International Sphere
- C. The “Rule of Validation,” Party Autonomy, and Enforcement of Contractual Choice-of-Law Provisions
- Open Chapter
Advisory Board 9 results (showing 5 best matches)
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Earle K. Shawe Professor of Law, University of Virginia School of Law
- Professor of Law, Michael E. Moritz College of Law,
- Open Chapter
Copyright Page 2 results
- 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
- Open Chapter
Table of Cases 15 results (showing 5 best matches)
- Publication Date: August 4th, 2015
- ISBN: 9780314286420
- Subject: Conflict of Laws
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: This Concise Hornbook guides students through the complex concepts and principles underlying the law of domestic and international conflicts. The book is an indispensable aid to students and practitioners seeking to better understand the basic principles of choice of law, recognition of judgments, and the law applied in federal courts, as well as more specific developments concerning conflicts in family law, cyberspace, and international transactions.