Conflicts in a Nutshell
Author:
Borchers, Patrick J.
Edition:
4th
Copyright Date:
2016
15 chapters
have results for Conflict of Laws
Chapter 1. Introductory 39 results (showing 5 best matches)
- It is in the law reviews that one often finds the major writings on conflict of laws. But there are several textbooks and like works that students and lawyers may find helpful. One of these, the Hay, Borchers and Symeonides Hornbook on Conflict of Laws (West 2010), is in its fifth edition. Another is American Conflicts Law by McDougal, Felix and Whitten, which is in its sixth edition (2011). Russell J. Weintraub’s Commentary on the Conflict of Laws is in its sixth edition (2010). Famous writings of a somewhat older vintage include The Choice-of-Law Process (Mich.U.Press 1965) in which David F. Cavers probes choice of law theory, and Brainerd Currie’s Selected Essays on the Conflict of Laws (Duke U.Press 1963).
- There are three major subdivisions of the “Conflict of Laws”. “Choice of law”, for which “conflict of laws” is often used as a synonym, is only one of them, albeit the most difficult and challenging. Another is jurisdiction. The third is the recognition and enforcement of judgments. In the chronological order in which these three subjects are likely to be met in practice, jurisdiction comes first, choice of law second, and judgments last. I’ll do them in that order. The next few sections set forth an introductory perspective on each of these major conflicts realms.
- In its narrow sense, a “conflict of laws” describes a case that has had contacts with two or more states, and in which the laws of these various states differ with respect to some issue that has arisen in the case. The very fact of the difference will make it necessary for the judge to choose among the competing laws, and on this choice the whole case may hang. This area is more accurately described as the “choice of law” realm, and although it is often the only reference meant by a “conflict of laws”, choice of law is in fact only one of three major subjects embraced by the “Conflict of Laws” course as it is generally structured in American law schools. Europeans, by the way, prefer the term “Private International Law” to describe what one in the United States calls “Conflict of Laws”: the domain of rights, duties, and disputes between and among persons from different places. What is understood domestically as “International Law”—the realm of rights, duties, and disputes between...
- The most volatile of the three principal conflicts subdivisions—and the one to which “conflict of laws” is referring when used in its narrow sense—is choice of law. Whenever two or more states have a connection to a case and an issue arises as to which their respective laws differ, a choice of law must be made. The importance of the issue will vary, but more often than not when a genuine “conflict” is at hand, the choice is likely to mean the life or death of the claim. A simple and common example that arose in a number of cases during the formative years of the 1960’s and 1970’s, as will be seen in better context when choice of law is examined in depth later on (Chapter IV), is where cars from one state collide in another and one of the states has a “guest-host” statute that bars a passenger from recovering against the host-driver. Which state’s law applies can determine whether the passenger wins or loses a tort suit.
- Domicile is a giant subject in the conflict of laws and usually occupies its own chapter in conflicts casebooks.. But from this the impression should not be drawn that domicile is just another subdivision of conflicts, vying with jurisdiction, choice of law, and recognition of judgments to make the trio a quartet. The trio stands. As frequently as one meets domicile, the meeting is always on the terrain of one of the big three, especially the first two. Domicile furnishes a basis for judicial jurisdiction in several ways, involving both in personam and in rem jurisdiction (§§ 28 and 43). And when it comes to listing the elements that will determine a choice of law, domicile figures prominently. Because of its influential role in conflicts, domicile’s various ingredients are best collated and noted early so they can then be available for use throughout. Hence the assignment of Chapter II to domicile.
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Chapter 4. Choice of Law 376 results (showing 5 best matches)
- proceeds on the principle that true conflicts should be resolved by applying the law of the state whose interest would be the more impaired if its law were not applied…. [I]t is very different from a weighing process. The court does not “weigh” the conflicting governmental interests in the sense of determining which conflicting law manifested the “better” or the “worthier” social policy on the specific issue.
- The technique of determining whether a prima facie conflict is in fact just a “false conflict” is discussed by Professor Currie in his Selected Essays on the Conflict of Laws (p. 189) and by Professor Cavers in his Choice of Law Process (p. 89).
- Standing at another vantage point is the proforum-law approach advocated in one measure or another by some of the commentators. It sounds awful at first hearing, the quintessence of parochialism, and it surely had less to commend it in the pre-longarm jurisdiction era when the only place P may have had for suit against D was D’s home state regardless of the contacts other states may have had with the case. But now, with jurisdiction available in the states that have minimum contacts with the case, the forum’s choice of its own law in the case of a true conflict is felt by some to have as much philosophical base as any other rule or approach or technique. If there is no conflict, or if there is a “false conflict” (§ 81), the forum should of course apply the law of the only interested state whether that turns out to be the forum or not. But if there is a genuine conflict, and the sensibilities of one of the states will necessarily be offended when the other’s law is chosen, and one of...
- When the required analysis of underlying policies reveals that one state really has no interest in the outcome of an issue despite the seeming conflict between the on-the-face statements of its and the other state’s law, the situation is sometimes denominated a “false conflict”. That term appeared in § 66, and will again in § 81.
- Several of the prior sections sampled some of the choice of law methods currently used, and in an earlier section (§ 66) some of the major commentators and sources were cited. All choice of law methods meet their best test in the case of a “true” conflict, the case in which there is antagonism not only between the instructions of the competing laws, but also between the policies that underlie them. The treatment in preceding sections of the principal new approaches obviates repetition here, but a few observations about competing techniques can help, and will incidentally enable us to acknowledge a few other standards that can account for some goings-on in choice of law perhaps better than such respectable citizens as interest analysis, significant relationship, choice-influence, and other senior members of the conflicts bar. Into this less reputable category might fall the choose-forum-law approach, and in tort cases the “plaintiff’s viewpoint” rule, skeletons in the conflicts...
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Preface 7 results (showing 5 best matches)
- The field of the conflict of laws has changed dramatically over the years. The subject is traditionally broken into three parts: jurisdiction, choice of law and judgment recognition. This Nutshell covers all three. Although judgment recognition has been a relatively stable body of law, jurisdiction and choice of law have both seen upheaval (particularly during the time of the “conflicts revolution” which began in the 1960’s) and are still marked by the shifting sands of doctrine to this day.
- I acknowledge a great debt to the field of conflict of laws itself. It weaves its way in and out of every subject the law knows, keeping the mind alive and making the labor of writing about it a labor of love, as it was for David is for me now.
- This Nutshell’s goal is to reduce each topic to workable size, so that if an answer is not in hand, it will at least be within reach. It would please me if a law student or practicing lawyer going through this book were to come out with the feeling that conflict of laws is negotiable after all; and it would delight me if each of them were to feel as if addressed as the other.
- The temptation to expand at many points was great, and at some junctures of choice of law—the most challenging of the conflicts family—almost irresistible. I resisted. I have kept it always in the front of my mind that this is a Nutshell. I trust that the reader who at some points may want more will remember that, too. The reader who wants more will find helpful the brief bibliography in § 11.
- This book is dedicated to my late colleague David Siegel. He was intellectual giant in multiple fields, but most especially the conflict of laws and New York procedure. David was the original author of this Nutshell. For the third edition I was honored to be his co-author and for this issue I am the sole named author though this edition owes much to his brilliance.
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Chapter 6. Judgments 69 results (showing 5 best matches)
- The third and last of the three major conflict of laws realms is the recognition of judgments. It is often studied before choice of law in law school curricula, but its more logical place is after. It can then build on principles studied during choice of law, as it often has to do.
- The form that the attack takes in F-2 will be determined by F-2 procedures, however, a point that becomes important if in one of the states there has not been a merger of law and equity and separate courts are maintained for each. Fraud, for example, is generally deemed an “equitable” defense. At common law, a law court could not entertain the fraud defense against a “law” judgment. It took a separate action in chancery to enjoin the enforcement of the law judgment based on the fraud. If F-2 retains the separation of courts, it may require D, when sued on the F-1 judgment in an F-2 law court, to bring a separate equity action in F-2 to enjoin the enforcement in order to take advantage of the fraud defense that F-1 allows (see Christmas, USSC 1866, where D did not do that and thus failed in the F-2 attack). Conversely, where it is F-1 that maintains the separation of law and equity but F-2 has merged them, a showing that F-1 would entertain a separate equity action to enjoin its law...
- Even a merits error of federal law, or of federal constitutional law, is no ground for F-2 to refuse recognition to an F-1 judgment, as long as F-1 had jurisdiction. Even if Missouri in the Fauntleroy case could be shown to have applied its own law, irrelevant to the case, to gauge the legitimacy of the Mississippi transaction, and the situation was one in which due process would insist that only Mississippi law could govern because only Mississippi had the requisite contacts (§ 56), Mississippi would still have had to recognize the Missouri judgment. Missouri had jurisdiction, and that settles the matter. The “due process” objection, just mentioned, if such it
- The same may be said of an arbitration award. If the award is that of an arbitration panel duly constituted under the law of the place where it sits, and the parties have submitted to arbitration voluntarily (or, today, if they have been submitted to it by state law in one of the burgeoning areas of compulsory or semi-compulsory arbitration, such as certain labor situations and some no-fault cases in tort), the resulting award, if recognized at home, must be recognized elsewhere. (See Rst.2d § 220.)
- If the F-1 disposition was not on the merits, it does not get full faith and credit. An important example of this is where F-1 has dismissed the action because brought too late under F-1’s statute of limitations (Semtek USSC 2001), or because barred under F-1’s application of the doctrine of laches. If F-2 has a longer period, still alive when P sues in F-2, the F-1 untimeliness disposition will not bind F-2. (Warner, CA2 1933.) The result might be different if F-1 measured timeliness not by its own statute, but by F-2’s, as might happen if F-1 has a “borrowing” statute or makes an equivalent borrowing under its decisional law (§ 58). In that instance the timeliness of an F-2 action under F-2 law would be an issue that F-1 disposed of by applying that very law, and, even should F-1 have been in error in the application, its holding on the point would presumably have to be deemed dispositive by F-2 under general full faith and credit principles.
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Chapter 3. Jurisdiction 268 results (showing 5 best matches)
- I am writing here of “judicial jurisdiction”, the heading under which all of the branches and twigs of this chapter fall. One occasionally hears in the conflict of laws the phrase “legislative jurisdiction”. It belongs to the choice of law chapter, but it may be helpful to describe and distinguish it briefly here:
- The contractual conferral of jurisdiction is also more a phenomenon of arbitration than of litigation. Arbitration is an ever growing source of dispute resolution, but since a contract is its principal source of jurisdiction, the array of conflicts problems one meets in litigation has fewer counterparts in arbitration. The several conflicts points to note in respect of arbitration involve choice of law and the recognition of judgments more than they do jurisdiction, and all are tied together later (§§ 75, 120).
- The topic of jurisdiction is one of the three main branches of the conflict of laws, becoming relevant whenever a court attempts to exercise power over any person not domiciled and served with process within the borders of the state that created the court. The several groupings of jurisdiction are the subject of this chapter.
- The full faith and credit clause (Const. Art. IV, § 1) is at the heart of “recognition of judgments”, the third of the three main subtopics of conflict of laws (treated in this book in § 108 et seq.), but a brief note about it is helpful here, under jurisdiction.
- All of this discussion overlaps the recognition of judgments segment of the conflict of laws, pointing up once again the intimacy of the relationship between that subject and jurisdiction.
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Chapter 7. Family 69 results (showing 5 best matches)
- Under the heading of “family” comes marriage as well as the actions that dissolve or annul it. The law respecting marriage is briefly stated in § 122. The rest of this chapter is mainly devoted to the myriad aspects of breaking the marriage up—“matrimonial” actions, which have a far greater hold on the conflict of laws.
- The parties, with or without estrangement, can stipulate to a choice of law to govern the nature of their ownership of specified property. This has been upheld, especially when the law stipulated to is that of the state to which the property has in fact been transferred. (Wyatt, NY 1965.) When there is no such stipulation (and there usually is not), the best that the body of conflict of laws can manage when multistate contacts are present is a few general rules.
- Even in light of these recent developments, marriage is not as often a problem in conflict of laws as is divorce. Marriage is easy and divorce is hard, rather the reverse of the way a lot of thoughtful people think things ought to be. The situation has made for a fascinating aggregate of divorce cases. Their study is next.
- A related problem concerns a spouse’s right to elect against a will. If of the several related jurisdictions some confer such a right and others do not, or confer it in different measures, whose law governs? Here an analogy lies to the usual post-death rules of property distribution. For land, situs law governs. For personal property, the law of the parties’ domicile governs. The domicile would have the predominant interest in whether and to what extent a surviving spouse should have a right of election against the decedent-spouse’s will. In Clark (NY 1968), the right-to-elect law of Virginia, the domicile, was applied despite the testator’s placing the subject personal property in New York and stipulating in his will to have New York law apply. Should the spouses have different domiciles at the time of the death of one of them, a logical choice of law for an election problem, should there be a conflict, is that of the state in which the couple last cohabited as spouses (the final “...
- Assuming properly based in personam jurisdiction, the court can order support for the children, or between the spouses themselves, and this of course includes a divorcing court if the support claim is made as part of a matrimonial action, as it often is. If the monetary disposition is adjudicated in the form of periodic payments, the next conflict of laws realm that the judgment will meet, if any, is likely to concern F-2’s recognition obligation, a matter addressed in § 129. The F-1 judgment will at least be able to approach that meeting with the sturdy credentials of a “bilateral” decree, the in personam jurisdiction of F-1 having made it that.
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Chapter 2. Domicile 45 results (showing 5 best matches)
- In the usual situation in which a forum choice of law rule has been applied and has required the judge to choose the law of another state in respect of a given issue, the law chosen will be that which the other state applies to local cases having no foreign elements. When the forum state looks to foreign law, it will most often look to its “internal” law, a word used to exclude and distinguish choice of law rules. A kind of chaos can result if State F, the forum, were to consult the choice of law rules of State X, only to find that State X’s choice of law rules say to apply State F’s choice of law rules. This chaos is called “renvoi” in the conflict of laws, and it merits a separate section (the next one) and a slow-motion build-up.
- Domicile puts in many appearances in the conflict of laws, especially in the first two of the three major realms: jurisdiction and choice of law. It has less of a function in the third one, recognition of judgments, but it becomes relevant there, too. If, for example, P has a valid judgment against D from a court of other than D’s domicile, and can’t enforce it in the forum of rendition, P is wont to turn to D’s domicile, where D likely has property, and take steps to obtain a domicile-court judgment based on the foreign one so as to make it enforceable against that property. More on that will be seen in the chapter on judgments (Chapter VI).
- When acts and words conflict, the acts will usually control. In the final analysis, the decision is up to the highest court that the issue can be taken to. In the well-known Dorrance cases, one in Pennsylvania (1932) and one in New Jersey (1934), there were conflicting findings of domicile, both of which survived—at a cost of millions each—for want of any review by the United States Supreme Court. Mr. Dorrance was one of the financial wizards (and beneficiaries) behind the Campbell’s Soup Company, and in the Dorrance cases Pennsylvania and New Jersey each took a look at Dorrance’s estate and smacked their lips and said “Mm, Mm, good!” Dorrance had big estates in each of Pennsylvania and New Jersey, the former being the bigger and more frequently used. The Pennsylvania court, listing the numerous things one does out of one’s home base, found Pennsylvania to be the state in which Dorrance was domiciled when he died and hence the state entitled to a full estate tax under state law. New...
- But suppose that in respect of the particular issue the forum’s choice of law rule directs the judge to apply not the internal rule of State X, but the “whole law” of State X, that is, State X’s choice of law rules as well. When this happens, a giant step is taken towards a “renvoi”, but we are not there yet. If the applicable rule in State X’s batch of choice of law rules says to apply State X’s internal law to the issue at hand (or even State F’s internal law or any other place’s internal law), there should be no problem. The final pointer being to a body of internal law, One can find there the rule of law applicable to the issue and then apply it, once again closing out the case.
- But now assume that because it gives different credits to different contacts than State F does, the relevant choice of law rule of State X, to which one has been referred by the relevant choice of law rule of State F, sends us back to the choice of law rule of State F. A deja vu is all one experiences on arriving back there: since the State F choice of law rule is the one that originally sent us to the State X choice of law rule, a return to the State F choice of law rule will only send us back to the X rule, which will send us back to the F rule, etc., in a kind of circular perpetual motion that will never give us an internal substantive rule to apply to the case.
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Chapter 5. Erie Doctrine 49 results (showing 5 best matches)
- A different constitutional issue can also arise in an Erie setting. When it is said that a federal court must apply state choice of law rules in a diversity case (§ 103), the assumption is that the choice the state would make is itself a constitutional one. Indeed, the same would be true of a non-conflicts diversity case in which the federal court is merely looking to the forum’s internal substantive law: it had better be constitutional in the judge’s eyes. If the state courts, and even the state’s highest court, have passed on a given law or choice of law rule and found it satisfactory to federal constitutional standards, the finding will of course be persuasive to a federal judge facing the same issue, but it is not likely to be decisive.
- Practically speaking, the Erie doctrine applies only when the basis of federal subject matter jurisdiction is diversity of citizenship. But Erie is a construction of a statute—the Rules of Decision Act—that applies in all situations in which a point of law arises not governed by federal law. Even when there is no diversity, therefore, and the federal court is hearing a case “arising under” federal law, it will sometimes happen that an issue arises having no federal source for resolution. Here, too, the Rules of Decision Act may apply and require recourse to state law. This happens, for example, when, in an otherwise federal context, an issue of a family relationship arises. There is no federal body of family law and the issue may therefore have to be resolved by reference to state law. De Sylva (USSC 1956) is an example. Federal law listed those entitled to succeed in interest to a federal copyright, and “children” were on the list. Whether an out-of-wedlock child would be embraced...
- When a state choice of law rule has to be applied in the federal court, a problem of broader dimensions can arise. If the forum’s (State F’s) choice is that of the substantive law of State X, and that law is unclear, the perception of State X law that the federal court must pursue is not its own direct analysis, or that of State X’s highest court directly, but that of State X’s highest court as the federal court thinks the highest court of State F would perceive it. The tools of the search for State X’s law are likely to be identical whether the federal court is going to State X law on a line, or through State F’s choice of law rules, but the situation is fanciful enough to have prompted Judge Henry Friendly in such a case (Nolan, CA2 1960, afterwards set aside and remanded, USSC 1961) to note that his task was “to determine what the New York courts would think the California courts would think on an issue about which neither has thought.”
- After some 96 years of this (actually longer, for the Swift decision was hardly the first of its ilk), the Supreme Court acknowledged the unfair choice of forum this gave the plaintiff in a case governed by general rather than local law merely because the plaintiff and defendant happened to come from different states. Reconstruing the Rules of Decision Act, the Supreme Court in Erie overruled Swift and held that state law governs in the common law as well as in the statutory situation. Subsequent cases clarified that this means forum law: the law of the state in which the federal court is sitting.
- The Guaranty Trust and a number of other cases in the Supreme Court and below teach that an attempt to determine whether Erie (and thus state law) applies to a given issue in a diversity case merely by categorizing the issue as one of “substance” (state law applies) or “procedure” (state law doesn’t apply) is simplistic and often will not work. This is called “characterization” and it can too easily avoid a reference to state law in a case in which the underlying policies of the Erie case would want state law applied. Guaranty Trust and its statute of limitations issue, treated in the prior section, is an example of that.
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Index 376 results (showing 5 best matches)
Outline 59 results (showing 5 best matches)
Advisory Board 10 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
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
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Copyright Page 3 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.
- West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.
- Printed in the United States of America
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- Publication Date: November 10th, 2015
- ISBN: 9781634597463
- Subject: Conflict of Laws
- Series: Nutshells
- Type: Overviews
- Description: Develop perspective on the conflicts of law arena with Borchers’s broad vantage point. Topics covered include issues involving domicile; jurisdiction; adjudication; statute of limitations; foreign law; contract and business cases; torts; "renvoi"; Erie Doctrine; judgments; and family (marriage, dissolution of marriage, property incidents, and custody). Use Conflicts in a Nutshell as an introduction and review tool for students or as a quick refresher and reference tool for lawyers.