Abstract
The concept of public and private interests is the keystone of the choice-of-law methodology elaborated in this book. The major perspectives and values of this concept will presently be discussed.
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References
“In making that choice [of laws], two problems of legal philosophy are relevant: the nature of law, and the ends of law.” Freund,Chief Justice Stone and the Conflict of Laws,59 Harv. L. Rev. 1210 (1946).See Hoff,The Intensity Principle in the Conflict of Laws,39 VA. L. Rev. 437 (1953); Kronstein,Crisis of “Conflict of Laws,”37 Geo. L. J. 483, 509 (1949).
SeeG raveson,Philosophical Aspects of the English Conflict of Laws,78 L.Q. Rev. 337, 342 (1962).
See Katzenbach,Conflicts on an Unruly Horse: Reciprocal Claims and Tolerances in Interstate and International Law,65 Yale L. J. 1087, 1108, 1115 (1956).
Where many jurists subscribe to the conception of law as “… a creative instrument for using public power to fulfill community expectations with regard to all values…”Id.at 1108. This conveys rather neatly the pragmatic-utilitarian flavor of the current trend in American legal thinking which emphasizes the utility of ascertaining the social goals which the community, through its decision-making agencies, strives to promote. The decisions of the authoritative institutions must be so designed as to further the said goals in a way approximating a maximization of the general satisfaction, happiness and well-being of the community at large. Moreover, “… modern socio-political theories [are] recognizing every distinct autonomous society, as a dynamic organism contributing positively to the well-being of mankind.” Briggs,The Need for the “Legislative Jurisdictional Principle,” in a Policy Centered Conflict of Laws,39 Minn. L. Rev. 517, 534 (1955). Thus, jurisprudential preoccupation is keyed to the elaboration of ways and means of collective welfare and public policy, conscious social engineering, and police power regulation.SeeKatzenbach,supranote 3, at 1156.
It is noteworthy that the contemporary American stress on policy and function has aroused rigorous criticism in England and continental Europe. Thus Kahn-Freund, though conceding that “the functional approach to law, the determined fight against the illusion that law results from deductive reasoning, is one of the great contributions of American thought…,” sharply condemns “… the process of invoking the magic of policy at the expense of principles [which] has now reached a point at which a non-American reader may be forgiven for getting… impatient with this fetish…” Book Review, XXth Century Comparative and Conflicts Law, 76 harv. L. Rev. 223, 228 (1962). He concludes his attack intimating that “one sometimes wonders whether those who write about policy, having rightly fought a valiant (and by now largely victorious) battle against the illusion of legal certainty, have not become the victims of their own victory to the point of denying the normative content of the law and indulging in a `decisionism’ which is the legal version of intellectual nihilism.”Ibid.
“… [Not] only modern social legislation but also the bulk of the common law is `economic and sociological in character,’ and not merely `juridical’…” Currie, Selected Essays on the Conflict of Laws 481 n. 124 (1963). “… [T]he common law itself is an instrument of social and economic policy…”Id.at 65.
“While all law is based on policy, it is the function of the lawyer to clarify policy and make it definite, to adjust it to competing policy, and to reduce the result to legal terms which gain in precision without losing sight of fundamentals.” Cheatham,American Theories of Conflict of Laws: Their Role and Utility(1945), in Selected Readings on Conflict of Laws 55 (compiled by the Association of American Law Schools, 1956 — hereinafter cited as AALS READINGS).
See Drion, The Lex Loci Delicti in Retreat, in Festschrift for Otto Riese 235 (published by C. F. Müller Karlsruhe, 1964); Hancock,“In the Parish of St. Mary Le Bow,in the Ward of Cheap,” Choice-of-Law Problems Resolved by Statutory Construction: The Charitable Testamentary Gift Cases, 16 Stan. L. Rev. 561, 626 (1964); Katzenbach,supranote 3, at 1131–32; Kramer,Interests and Policy Clashes in Conflict of Laws, 13 Rutgers L. Rev. 523, 534 (1959); Tate, Book Review, Currie, Selected Essays on the Conflict of Laws, 39 Tul. L. Rev. 163, 169 (1964).
On the thee-dimensional concept of “individual,” “group” and “social” interests and on the function of governmental — legislative, administrative or judicial — policy as a means of preventing, adjusting or assigning priorities to clashing interests, see Kramer,supranote 9, at 524–27.
“Even within the sphere of private law… [rules] generally represent norms for the ordering of behaviour, not merely for dispute settlement, and today public-law objectives are coming increasingly to infiltrate private law.” Cavers, The Choice-Of-Law Process 100 (1965). Currie reiterates the “message of sociological jurisprudence” to the effect that even “private law” rules embody public policies. Book Review, Ehrenzweig, Conflict of Laws, 1964 Dukel. J.424, 436. As an illustration, he cites the briefs filed by the United Kingdom and Denmark asamici curiae in Romero v. International Terminal Operating Co., 358 U.S. 354 (1959). Such public interests at stake in a private law suit may include“… interests of the state and of the entire community… in maintaining peace, order, stability, fostering certain highly regarded social and individual values, checking… or controlling other social and individual values.” Kramer,supranote 9, at 524.See id.at n. 3 for citations to the “sociological jurisprudence” writings of Pound, Patterson and others.
Nonetheless, there are still quite a few legal writers who vigorously deny the assertion of governmental interests of the state as such in matters of purely “private” law. The allegedly sole concern of such “private” legal rules is the doing of justice between the individual litigants, the guaranteeing of a fair accommodation of the private interests at stake.SeeCAVERS,supranote 11, at 99 n. 35. Rheinstein, for one, categorically states that “never in a private law case is there a conflict between states in the sense in which states clash on questions of boundary, treatment of foreign nationals or property, or spheres of interest. A court of F is concerned with a case of private litigation because some private person wishes that the state power of F… go into action in his favor and against some other private person.” Book Review, How to Review a Festschrift, 11 AM. J. COMP. L. 632, 664 (1962). This seems to be the still prevalent view in continental Europe.See generally Kegel,The Crisis of Conflict of Laws,112 Recueil des Cours 95 (1964—II). This author asserts that “in England and the United States public and private law are not so sharply distinguished, either substantively or adjectively, as they are usually on the European continent.”Id.at 205.
“The ordinary civil action in a common-law jurisdiction employing the adversary system normally has quite obviously embodied a clash of individual interests.” Kramer,supranote 9, at 523.
Cheatham and Reese,Choice of the Applicable Law,52 Colum. L. Rev. 959, 972 (1952).
See Tate,supranote 9, at 169.Cf.Katzenbach,supranote 3, at 1126.
[T]he `science’ of conflict of laws… is essentially the process of construing or interpreting laws in such a way as to effectuate the policies embodied in them.“ CURRIE,supranote 6, at 443. A somewhat comparable tendency, albeit much milder in explicitness and intensity, may be discerned even in present-day European conflicts doctrine which is ”… now distinguished by the same emphasis on policy and the same rejection of sterile dogma…. Ehrenzweig, Conflict of Laws 308 (1962).
Thus,e.g.,Yntema condemns the idea of “a calculus of governmental interests” as a “… vague and perverse idea, suggesting that laws are made for bureaucracy…”Basic Issues in Conflicts Law,12 AM. J. COMP. L. 474, 482 (1963). Wolff continues to subscribe to the universalistic view that “the community, the interests of which must be borne in mind by the [conflict-of-laws] lawgiver, is neither the community of his own nationals nor that of the various states or nations, but the community of all individuals, of mankind A system of conflicts rules which neglected this supernational view would be contrary to justice.” Private International Law 16 (2d ed. 1950). Even Rheinstein has invoked a phrase to the effect that “… conflicts law is concerned with the demarcation of the regulatory spheres of sovereign states” which is strongly reminiscent, at least if taken at face value, of the age old conception of “legislative jurisdiction.” Book Review, Ehrenzweig, Conflict of Laws, 32 U. Cm. L. REV. 369, 370 (1965).
Thus a German scholar, Kegel, concedes the tenability of a “governmental interests” conception in respect to “affairs of state,” namely, “public law” matters such as expropriation, social insurance, currency, tax and criminal law. In contradistinction, “matters concerning individuals,” namely, “private law” arrangements affecting the personal, family and property rights of individuals are not, for the most part, within the ambit of governmental concern. The issue with regard to this latter type of problem-area is not state’s “policy,” “power” or “interest,” but rather a somewhat abstract notion of “justice” in the sense of a “… correct… ordering of relationships among private parties.”Supranote 11, at 182. Hence in the “private” sector of the law “… the state does not decide its own affairs, but affairs ofothers. It is playing the role of judge, not of litigant.”Ibid. (emphasis in the original). And further: “Private law has… a certain degree of independence from state control,”id. at 183, due to the pronounced “… difference between state’s interests and the search for justice inherent in private law.”Id. at 184. “The state uses private law rules not in order to serve its own goals but rather to search for justice in the relations of individuals.”Id. at 198. The way from such statements to the startling conclusion that “… conflicts law [is] a branch of the law that has no relation to the state, but rather to rights ofindividuals,” id. at 205 (emphasis in the original), is indeed short.Cf. Paulsen and Sovem,“Public Policy” in the Conflict of Laws, 56 Comm. L. REV. 969, 1003–1008 (1956).
Wengler,The Significance of the Principle of Equality in the Conflict of Laws,28 LAW and CONTEMP. PROB. 822, 829 n. 31 (1963).
“The `governmental interest’ analysis has been used for thirty years by the Supreme Court in determining whether a state has, under the Federal Constitution, legitimate grounds for applying its law in a particular case.” Hancock,supranote 9, at 627–28 n. 213. As to other courts, it has been suggested that “a very few courts have recognized the merit of attempting in their choice of law to take into account the policy considerations which presumably underlie the substantive rules of the competing states.” Leflar,Choice of Law: Torts: Current Trends(1953), Aals Readings 561, 570.
Cavers,A critique of the Choice-of-Law Problem(1933), Aals Readings 101, 105.
Cavers,Comment: The Two “Local Law” Theories(1950), AALS READINGS 124, 128.See generallyCAVERS,supranote 11.
Hancock,Choice-of-Law Policies in Multiple Contact Cases,5U. Toronto L. J. 133, 142 (1943).
Harper,Policy Bases of the Conflict of Laws: Reflections on Reading Professor Lorenzen’s Essays,56 Yale L. J. 1155, 1163–64, 1167, 1168 (1947), albeit somewhat obscured by a “grouping of contacts” terminology -see,e.g.,id.at 1164, 1166–67. On this concept, see generally in a subsequent chapter.
Katzenbach,supranote 3, at 1123, 1127.
Cheatham and Reese,supranote 13, at 960.Id.at 965–69.
Reese,Conflict of Laws and the Restatement Second,28 LAW and CONTEMP. PROB. 679, 683 (1963).
i>I.e.protecting the justified expectations of the parties, applying the law of the “state of dominant interest,” and upholding “contractual obligations assumed in good faith.”Id.at 686.
Cal. 2d 588, 360 P. 2d 906 (1961).
i>See De Nova,Current Developments of Private International Law,13 AM. J. COMP. L. 542, 565 (1964); Kegel,supranote 11, at 200–202.
Lezioni Di Diritto Internazionale Privato (3d ed. 1961).
De Nova,New Trends in Italian Private International Law,28 LAW and CONTEMP. PROB. 808, 819 (1963).
See generallyvon MEHREN and TRAUTMAN, The Law Of Multistate Problems
See id. at 99; Ehrenzweig,Comment on Babcock v. Jackson, 63 COLUM. L. REV. 1243, 1246 (1963).
See id. at 99; Ehrenzweig,Comment on Babcock v. Jackson, 63 Colum. L. Rev. 1243, 1246 (1963).
Such rules are those which “.. without prescribing or proscribing any conduct, merely state the legal consequences attached to certain acts or occurrences…” Hoff,supranote 1, at 449. They “… have little concern to the public except as the public is composed of individuals, any one of whom may take advantage of a given law’s provisions.” Caver,supranote 11, at 102.See Fuller, the Morality of Law 60 (1964).
For the sake of terminological precision, Cavers would have us invoke the term “purpose” to denote the underlying reason of a given legal rule while reserving the notion of “policy” for general objectives in the legal system which are not specific to one rule or another.See supranote 11, at 98.
“… [I]nterests find their expression both in the general approach and philosophy underlying such broad areas of law as the law of torts or of contracts and in specific rules and institutions of law…. Von Mehren and Trautman, supra note 45, at 102.
See Cheatham and Reese,supranote 13, at 978; Leflar,Choice-influencing Considerations in Conflicts Law,41 N.Y.U.L. REV. 267, 282 (1966).
“Every society develops standards of fairness and justice… So too, each community works out criteria for the administration of its internal social and economic problems…” Harper,supranote 28, at 1161. The concerns of the community are not limited to “material and otherwise tangible interests” only, but also embrace “higher, spiritual values.” Neuhaus,Legal Certainty Versus Equity in the Conflict of Laws,28 LAW and CONTEMF. PROB. 795, 802 (1963). Even Currie realizes at one point that “… law is not an instrument of social control alone… It is an accumulated body of experience and principle…. serving as a guide to the ”… adjudication of disputes between parties in courts.“Supranote 6, at 64–65. Ordinarily, however, he is inclined to define the concept of governmental interest as embracing only ”… social, economic, or administrative policy.“Id.at 189.
As preferred by Currie —see generally supranote 6. For some remarks and criticism on Currie’s terminology, see Kramer,supranote 9, at 531–32.
SeeBriggs,An Institutional Approach to Conflict of Laws: “Law and Reason” Versus Professor Ehrenzweig,12 U.C.L.A.L. REV. 29, 59 (1964).
i>SeeWeintraub,A Method for Solving Conflict Problems — Torts,48 Cornell L.Q. 215, 216 (1963).
i>SeeGraveson,Philosophical Aspects of the English Conflicts of Laws,78 L.Q. REV. 337, 348 (1962).See generally Cheshire, Private International Law (7th ed. 1965).
Graveson,supranote 57, at 355.59 Id.at 354.
Cavers,supranote 25, at 110, 111.
SeeHarper,supranote 28, at 1174.
Ehrenzweig,supranote 15, at 346 (emphasis in the original).
In a later publication Cavers again invokes the consideration whether in a particular case “… resort to the other state’s law [would be] more just to the parties… than [would be] resort to the forum’s own law.”The Conditional Seller’s Remedies and the Choice-of-Law Process — Some Notes on Shanahan,35 N.Y.U.L. Rev. 1126, 1139 (1960).
Id. at 80, 121. Cavers admonishes judicial tribunals sitting in choice-of-law cases.. to assess the respective policies and equities bearing on the issue before the court.“Comment on Babcock v. Jackson, 63 Colum. L. Rev. 1219, 1220 n. 5 (1963).
SeeLorenzen,Territoriality,Public Policy and the Conflict of Laws,33 Yale L. J. 736, 748 (1924).
“It is the business of courts… to administer the law in such a way as to reach fair and just results between the particular litigants…” though in conflicts cases “… situations are… likely to arise in which the results in the particular cases may deviate from the exact measure of justice which the tribunal would otherwise administer.” Harper,supranote 28, at 1174.See id.at 1161.
“… [The… governmental interest analysis can… be used… when, in the case before the court, the parties’ expectations and other otherwise pertinent considerations must be overriden on public policy grounds strong enough to justify such non-consideration.” Nadelmann,Marginal Remarks on the New Trends in American Conflicts Law,28 LAW and CONTEMP. PROB. 860, 861 (1963).
Rheinstein,supranote 17, at 375. This approach runs parallel to what seems to be a rather popular contemporary European view of the function of conflicts law. Kegel,e.g.,intimates that he does not think that “… governmental interests are at work in conflicts law… in conflicts law… the interests at stake are private and the aim is justice between individuals.”Supranote 11, at 207.
Rheinstein,supranote 17, at 376.
See Rheinstein, Book Review, How to Review a Festschrift, 11 AM. J. COMP. L. 632, 658 (1962).
Currie, Selected Essays on the Conflict Of Laws 621 (1963).
One of Currie’s followers, Baxter, expressly subscribes to such a view: “[choice-oflaw] cases can be decided by viewing them as instances of conflicting state interests rather than of conflicting private interests.”Choice of Law and the Federal System, 16 Stan. L. Rev. 1, 22 (1963).
See Curie,supranote 74, at 596–97. “The court’s responsibility is the judicial one of finding a rational and just result in the case before it, not the political one of furthering some transcendent objective….Id.at 596.
The judicial process requires “… some reasonable connection between the individual and the prescription asserted and some notice that he is subject to the prescription.” Katzenbach,Conflicts on an Unruly Horse: Reciprocal Claims and Tolerances in Interstate and International Law,65 Yale L. J. 1087, 1094 n. 30 (1956).
See id. at 1132–33.Cf.Briggs,The Need for the “Legislative Jurisdictional Principle” in a Policy Centered Conflict of Laws,39 Minn. L. Rev. 517, 532 (1955).
See e.g., Rheinstein,Ehrenzweig on the Law of Conflict of Laws, 18 Okla. L. Rev. 238, 241 (1965).
See Wengler,The Significance of the Principle of Equality in the Conflict of Laws,28 LAW and CONTEMP. PROB. 822, 840–41 (1963).Cf.CAVERS, The Choice-Of-Law Process 55 (1965). For a choice-of-law rationale in terms of applying laws to which parties were “subject” at the time and place of interaction see STIMSON, CONFLICT OF LAWS 56 (1963).
Neuner,Policy Considerations in the Conflict of Laws,20 CAN. B. REV. 479, 482 (1942).
See 2 Rabel, The Conflict Of Laws: A Comparative Study 304 (2d ed. 1960); Rheinstein,supranote 83, at 241.But seeCAVERS,supranote 84, at 303: “… expectations of parties surely are not the only test of fairness to them.”
See Cavers, supranote 84, at 302. “Foreseeability has been misused and misapplied in many areas of the law…” Childers,Toward the Proper Law of the Tort,40 TEXAS L. REV. 336, 347 (1962).
“… [A] basic interest in our social and economic and political system… is that wherever possible, without undue sacrifice of other equally basic interests, our legal system should endeavour to make certain that the normal, reasonable, legitimate expectations of persons are achieved instead of frustrated.” Kramer,Interests and Policy Clashes in Conflict of Laws,13 RUTGERS L. REV. 523, 561 (1959). The author goes further to propose a general presumption in favor of this key interest in the interpretation of statutory language.Ibid.
SeeCAVERS,supranote 84, at 66; Rheinstein, Book Review, Ehrenzweig, Conflict of Laws, 32 U. Cm. L. Rev. 369, 375 (1965).
SeeDICEY and MORRIS, CONFLICT OF LAWS 691, 704 (8th ed., 1967). Almost all Israeli judges, while adopting and employing the English “proper law” formula, join this subjectivist line of reasoning and semantics. The “autonomy of the parties” principle is currently endorsed by many conflicts systems.SeeKegel,The Crisis of Conflict of Laws,112 Recueil Des Cours 95, 190 n. 12 (1964-II).
SeeHarper,Policy Bases of the Conflict of Laws: Reflections on Reading Professor Lorenzen’s Essays,56 YALE L. J. 1155, 1164 (1947); James,Effects of the Autonomy of the Parties on Conflict of Laws Contracts,36 Cm-KENT L. REV. 34, 35 (1959). Cavers maintains that “… even in the field of contracts, it is difficult often to escape the suspicion that a finding of the parties’ expectations is simply a vehicle to express the court’s conclusion that the choice of law it approves is a fair one.”Supranote 84, at 69.
See, e.g., Ehrenzweig, Conflict Of Laws 555 (1962).
SeeKatzenbach,supranote 79, at 1122 n. 123.
Thus,e.g.,commercial transnational air-lines “… must take account of the risk that foreign forums will apply their own law to protect those who had contacts with the forum…” Nadelmann,supranote 70, at 865.
See Note,Products Liability and the Choice of Law,78 Harv. L. Rev. 1452, 1462 (1965).See generallyEhrenzweig,Products Liability in the Conflict of Laws — Toward a Theory of Enterprise Liability Under “Foreseeable and Insurable Laws”: II,69 YALE L. J. 794 (1960).
Incidentally, the insurance industry itself has an understandable interest in the application of reasonably predictable laws to the various risks it sets out to insure, whether they stem from planned or unplanned liability-creating activities.Seevon MEHREN and TRAUTMAN, supra note 45, at 254.But seeon the actual role of such predictability in current practices of the insurance industry Morris,Enterprise Liability and the Actuarial Process — the Insignificance of Foresight,70 Yale L. J. 554 (1961).
Cf.Weintraub,A Method for Solving Conflict Problems — Torts,48 Cornell L.Q. 215, 241 (1963).
Katzenbach,supranote 79, at 1127.
See Kegel,supranote 95, at 252; Weintraub,A Method for Solving Conflict Problems,21 U. Purr. L. Rev. 573, 582 (1960).
Such as inflicting an injury on an alien coming from a jurisdiction with a more stringent standard of liability: “By entering the… nation, the [injured] visitor has exposed himself to the risks of the territory and should not expect to subject persons living there to a financial hazard that their law had not created.” CAVERS,supranote 84, at 147.
Ehrenzweig,supranote 99, at 569.But seeWeintraub,supranote 104, at 220: “Such a reliance argument will almost invariably be untenable when directed at rules governing liability for unintentional torts, excluding, of course, such purely directory local rules as speed limits, rules of the road and the like.”See id.at 239.
See CuRRUE,supranote 74, at 47; Drion,The Lex Loci Delicti in Retreat,in FESTSCHRIFT FÜR Orro RIESE 236 (published by C. F. Müller Karlsruhe, 1964).
“One of the strongest factors weighing against a resolution of a conflict in favor of liability would be unfair surprise to the defendant… [S]urprise to the defendant should be an element to be considered and perhaps, if sufficiently strong, be controlling in the resolution of a conflict between a rule which would confer liability and one which would deny liability.” Weintraub,supranote 104, at 239.Cf.Weintraub,supranote 107
See Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241 (1878).
Cf.Schmidt v. Driscoll Hotel Inc., 249 Minn. 376, 82 N.W. 2d 365 (1957).
See Restatement (Second), Conflict Of Laws § 174 ( Proposed Official Draft, Part H, 1968 ).
Thus, in a rather paradoxical manner, we might find ourselves drawing upon the familiar, and now quite discredited, idea of “vested rights” in the sense of “… protecting reasonable expectations from attrition… [and] stabilizing private relations…” Katzenbach,supranote 79, at 1107.
Cf. Siegelman v. Cunard White Star Ltd., 221 F. 2d 189 (2d Cir., 1955 ).
Cheshire, Private International Law 278 (6th ed. 1961).
Cf.Katzenbach,supranote 79, at 1145.But cf.with regard to American interstate engagements Baxter,supranote 75, at 1: “... members of our society, in both their personal and business activities, increasingly disregard the existence of state boundaries.”
“Just as the state is made up of and exists for individuals and groups, the individual finds fulfillment and completion as a member of organized society.” Von Mehren And Trautman, The Law Of Multistate Problems 237 (1965).
Cf. Traynor,Conflict of Laws: Professor Currie’s Restrained and Enlightened Forum, 49 CALIF. L. REV. 845, 872 (1961).
Cf. Grant v. McAuliffe, 41 Cal. 2d 859, 264 P. 2d 944 (1953).
Such a potential area of conflict between public and private interests is that of “party autonomy,”i.e.,explicit choices of law effected by the parties themselves, in the sphere of commercial transactions.Seevon MEHREN and Trautman,supranote 121, at 285.
One might, perhaps, wish to consider the feasibility of formulating some generalized indices of rational connection as useful guidelines to judicial analysis. The prospects of such standardization being successful are indeed dim, since the very essence of fair notice would ordinarily call for concrete assessment of all the pertinent circumstances of each individual case.Cf.Cavers,supranote 84, at 193.
See Sumner,Choice of Law Rules: Deceased or Revived?7 U.C.L.A.L. REV. 1, 16 (1960).
Hancock,Three Approaches to the Choice-of-Law Problem: The Classificatory,the Functional and the Result-Selective,XXTH CENTURY Comparative and Conflicts Law 365, 378 (Nadelmann, von Mehren and Hazard, eds. 1961).
Currie,supranote 74, at 367. “When one says that in a conflict-of-laws case a court should examine into the policy of domestic law… the reference is not necessarily to predetermined policy. The common law is no less dynamic in conflict-of-laws cases than in domestic cases.”Id.at 643.
But, practically speaking, does not the traditional system with all of its manipulation techniques and escape devices also confer vast, albeit disguised, discretionary powers upon courts professedly rule-observant?SeeHoff,The Intensity Principle in the Conflict of Laws,39 VA. L. REV. 437, 438 (1953); Sumner,supranote 128, at 25. Katzenbach expounds an interesting idea to the effect that, in matters of public and private international law, one should strive for “… the avoidance of projecting domestic philosophies of law to decision making in the international arena. The judicial function must involve a greater measure of discretion, a less rigid adherence to formalism and localstare decisis…” supranote 79, at 1157. The practical prospects of such a view to be acted upon by jurisdictions generally committed to a “rigid adherence to formalism” are, however, quite meager.
See De Nova,Current Developments of Private International Law,13 Am. J. Comp. L. 542, 543 n. 4 (1964).
See e g, Kahn-Freund, Book Review, XXth Century Comparative and Conflicts Law, 76 Harv. L. Rev. 223 (1962).
See De Nova,supranote 132, at 543;cf.Graveson,Philosophical Aspects of the English Conflict of Laws,78 L.Q. REV. 337, 352 (1962); Niboyet,Territoriality and Universal Recognition of Rules of Conflict of Laws,65 HARV. L. REV. 582, 584 (1952).
Currie concedes the inevitability of thead hocnature of the method since, after all, “… statutory construction must always be anad hocprocess.”Supranote 74, at 627.
But, of course, “even anad hocdecision should have a rationale.” Cavers,supranote 84, at 142 n. 5. On the feasibility of devising choice-of-law rules or principles predicated on an interest analysis seeinfrach. 7.
Note, in this connection, Currie’s interesting criticism of traditional conflicts thinking for purporting to resolve the choice-of-law problem “… in accordance with a code transplanted from the continent of Europe, which takes no account of the policies involved…”Supranote 74, at 627.
“The demolition of obsolete theories makes the judge’s task harder, as he works his way out of the wreckage; but it leaves him free to weigh competing policies without preconceptions that purport to compel the decision, but in fact do not.” Traynor,Law and Social Change in a Democratic Society,1956 U. ILL. L.F. 230, 234.
“… [T]he function of private international law is complete when it has chosen the appropriate system of law… this department of law resembles the inquiry office at a railway station where a passenger may learn the platform at which his train starts.” Cheshire, Private International Law 8 (7th ed. 1965).SeeCAVERS,supranote 84, at 9, 40; Cavers,A Critique of the Choice-of-Law Problem(1933), AALS READINGS 101, 104, 108 n. 21.
See Leflar,Choice-Influencing Considerations in Conflicts Law,41 N.Y.U.L. Rev. 267, 284 (1966).
“The categories of life are less sweeping than those of jurisprudence.” Cavers,supranote 139, at 111 n. 34.
“If one of the great ends of the law is the harmonizing of interests, a system of conflict of laws may make a greater contribution to that end by such an examination of the policies of the competing laws… than by a rule of thumb which fixes more or less mechanically on one state…” Freund,Chief Justice Stone and the Conflict of Laws,59 Harv. L. Rev. 1210, 1217 (1946).
See Currie, Selected Essays on the Conflict of Laws 364–65 (1963). The traditional, territorialist approach postulates a doctrinal limit on the power of a legislature to shape up local policies. By contrast, a choice-of-law method based on interest analysis fully acknowledges the unrestricted authority of the legislature to determine the scope of such policies “… so that legislative rectification of any interpretation that does not serve the public interest is positively invited.”Id. at 365.
Ibid.SeeKramer,Interests and Policy Clashes in Conflict of Laws,13 Rutgers L. Rev. 523, 531 (1959).Cf.Rheinstein, Book Review, Ehrenzweig, Conflict of Laws, 32 U. Cm. L. REV. 369, 371 n. 2 (1965).
Leflar,Ehrenzweig and the Courts,18 Okla. L. Rev. 366, 374 (1965).SeeSumner,supranote 128, at 22.
SeeNote,Products Liability and the Choice of Law,78 Harv. L. Rev. 1452, 1454 (1965).
See,e.g.,Wolff, Private International Law 11 (2d ed. 1950).
Such a view still enjoys favor in contemporary Italian conflicts theory.SeeDe Nova,New Trends in Italian Private International Law,28 LAW and Contemp. Prob. 808, 815 (1963).
“… [A] thing apart, a detached science of how laws operate in space;… an international science, transcending local concerns…” Currie,supranote 144, at 434.
See 1 Rabel, the Conflict of Laws: A Comparative Study 103 (2d ed. 1958). Once the expediency of system-pointing rules is thus acknowledged, there is some inner logic in Goodrich’s assertion that he is not convinced that “… rules of reference in Conflict of Laws should be any less definite than rules in any other branch of the law.”Foreign Facts and Local Fancies(1938), AALS READINGS 213, 215.
Where “... judges… must consider when to construe statutes narrowly and when broadly, must weigh the interest in security of transactions against the interest in protection of a group subject to duress…” Freund,supranote 143, at 1215.
“… [W]ewould indeed do well to scrap the system of choice-of-law rules.. without entertaining vain hopes that a new `system’ will arise to take its place. We shall have to go back to the original problems, and to the hard task of dealing with them realistically by ordinary judicial methods such as construction and interpretation…” CURRIE,supranote 144, at 185.See id.at 434, 443.
Ehrenzweig, Conflict of Laws 310 (1962).
Whether designated as “choice-of-law policies,” “choice-influencing considerations” or otherwise.
See Yntema,Basic Issues in Conflicts Law,12 AM. J. COMP. L. 474, 481 (1963). Indeed, Lorenzen asserts that Anglo-American conflict of laws “… may be characterized as more territorial in its nature than the continental.”Territoriality,Public Policy and the Conflict of Laws,33 Yale L. J. 736, 738 (1924).
See Katzenbach,Conflicts on an Unruly Horse: Reciprocal Claims and Tolerances in Interstate and International Law,65 Yale L. J. 1087, 1093, 1096 (1956).
See his celebrated maxims on territorial sovereignty in Story, Conflict of Laws sections 17, 18, 20, 21 (8th ed. 1883).SeePaulsen and Sovern,“Public Policy” in the Conflict of Laws,56 Colum. L. Rev. 969, 974 (1956). For a critical scrutiny of Story’s territoriality concept see generally Lorenzen,supranote 160. Lorenzen’s dissenting conclusion is that “... the rules of the Conflict of Laws are not based upon, nor are they derivable from, any uniform theory of territoriality.”Id.at 743.
See 1 Beale, Conflict of Laws 45–46, 308 (1935).
i>SeeSzdszy,The Basic Connecting Factor in International Cases in the Domain of Civil Procedure,15INT. and COMP. L.Q. 436, 445 (1966).
i>Katzenbach,supranote 161, at 1095.
Seevon MEHREN and TRAUTMAN,supranote 121, at 63–64.
Cavers, the Choice-Of-Law Process 134 (1965).
“Our states and nations are territorially organized; the legal order that each has created impinges on actions and affairs which, in a very high proportion of all instances, are wholly domestic to the state where they take place. To withdraw like actions and affairs from the reach of domestic law because the persons participating in them are not domestic to the state causes a wrench away from customary attitudes toward law...”id.at 135.
Leflar,e.g.,deplores the phenomenon of attaching “… more importance to residence than it deserves in choice of law…,” particularly in a federal union with an extremely mobile population. He proceeds to assert that “with respect to many tort matters residence is substantially irrelevant. Rules of the road for motor vehicles… proximate causation,res ipsa loquitur,and a score of other legal issues have… little to do with the residence of the parties.”Comment on Babcock v. Jackson,63 CoLum. L. REV. 1247, 1250 (1963). But then he concludes conceding that “this does not mean that residence is not one touchstone for `governmental interest.’… But it is not the keystone.”Ibid.
Spatially-delimited legal rules are indeed common and the complex problems encountered in the process of their interpretation will be discussed in a later chapter. At this point it suffices to note that the territorialist terminology in which many rules have traditionally been couched is often nothing more than an empty tribute to “territorial sovereignty” and “legislative jurisdiction” dogmas, rather than a candid assertion of interest by the enacting jurisdiction. Consequently, the indications of such language, explicit as it may be, should not rank very high in the hierarchy of rational considerations as to the proper realm of control to be accorded a given legal prescription.
By hypothesis, in the normal wholly domestic case the “applicable” (local) law is invariably the territorial law of the place of conduct, transaction or event at hand. This is a logically-compelled attribute of the very fact of the instance being purely domestic in all of its respects. But this self-evident feature of domestic law administration by no means amounts to a postulate of relevance exclusively in terms of the domestic localization of the occurrence. That is, the internal geographical location of an occurrence may not at all provide a material, let alone decisive, underlying ground for the interest of the forum’s community in the application of its appropriate standard.
Wengler,The Significance of the Principle of Equality in the Conflict of Laws, 28 LAW and CONTEMP. PROB. 822, 854 (1963).
“Freedom of movement between states or nations is adverse to any emphasis on the law of nationality or domicil as a determining factor in human, not to mention business, affairs…” Kahn-Freund,supranote 133, at 227.
Note,Products Liability and the Choice of Law,78 HARV. L. REV. 1452, 1465–66 (1965).
Even Cavers concedes that in international choice-of-law instances a “personal” (rather than a “territorial”) approach seems not unwarranted.See supranote 170, at 135 n. 22.
Internal rules affecting private rights are focused on people, as individuals or groups,… such rules prefer one group to another in particular situations;… a conflict of laws occurs when different states make opposite preferences…“ Baxter,Choice of Law and the Federal System,16 STAN. L. REV. 8 (1963). ”... [A] state is primarily interested in events that affect… the distribution of values among those who, by virtue of citizenship or residence, identify themselves with a particular community and seek the protection of its laws… [It] may or may not be concerned with acts of its citizens abroad. In terms of its impact upon local values the place of occurrence of relevant events may or may not have significance.“ Katzenbach,supranote 161, at 1133, 1134.SeeKegel,The Crisis of Conflict of Laws,112 Recueil des Cours 95, 119 (1964—II).
In order to avoid the intricacies inherent in the often technical definitions of such notions as “nationality,” “domicile” or even “residence,” Cavers offers to make use of the rather flexible and sometimes oversimplified concept of “home state.”See,e.g.,supranote 170, at 154, 155. This terminological suggestion seems tenable, particularly in view of Currie’s marked uneasiness in dealing with the conventional terms of nationality and domicile.SeeKegel,supranote 182, at 116, 189. The “home state” formula conveys, albeit in an overgeneralized fashion, the idea of a personal link with a community to which a person “belongs.” It goes without saying that the identification of a really relevant personal tie would always depend on the particular issue at bar. Further, one should be prepared to encounter numerous complexities in the actual practice of discerning pertinent personal contacts, especially concerning parties which are not natural persons such as corporations and the like.
Such as,e.g.,with regard to the protective incapacity of married women to enter into certain transactions.Cf.CURRIE,supranote 144, at 111, 114. On conventional invocations of the common personal law of the litigants in some instances see 2 Ralel, the Conflict of Laws: A Comparative Stwv 244–46 (2d ed. 1960). Kegel proposes the common-residence point of contact as a supplementary choice-of-law rule in the area of torts, thus seeking to improve the traditional conflicts system rather than support those who wish to replace it with the revolutionary “governmental interests” or “the basic rule of1ex fort”methods.See supranote 182, at 228–29.
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Shapira, A. (1970). The Concept of Public and Private Interests in the Choice-of-Law Process-Perspectives and Values. In: The Interest Approach to Choice of Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-7549-2_4
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