American History
2.1 Early Development
Like Upper Italy in the 12th century and the Netherlands in the 17th century,the United States provided an ideal spawning ground for the law of conflicts.With the exception of Louisiana,all other states adopted the common law system.After American Independence,the legislation and case law of various states diverged,so that conflicts problems soon surfaced.
The first American writer to deal with the conflict-of-law problems was Samuel Livermore (1786-1833),a distinguished advocate of New Orleans,where the Roman law as derived from French sources was,to a considerable degree,retained in 1812 when Louisiana was admitted as a State.3 Accordingly,as might have been expected,Livermore was deeply influenced by the doctrines of French and other European writers.In 1828,Livermore published his “Dissertations on the Questions Which Arise from the Contrariety of the Positive Laws of Different States and Nations,” which was the first American Conflicts book.The book was a concerted effort to import to the United States the doctrine of the Italian statutists and Huber’s comity doctrine.Though this effort failed,Livermore indirectly influenced the course of American conflicts law by making available the otherwise inaccessible continental conflicts literature to Story who made good use of these materials.
The scholar most responsible for the establishment and development of American conflicts law was Joseph Story (1779-1845),a Justice of the United States Supreme Court and Professor of Law at Harvard University.In 1834,the year after Livermore’s death,Story published his seminal Commentaries on the Conflict of Laws,which—though not the first American conflicts book—was the first comprehensive conflicts treatises in the United States.The enormous importance of the work of Story follows not only from his having occupied the bench of the Supreme Court in a formative period,but because of his great learning and the cogency of his arguments.He fashioned the law anew to the needs of the time.
Story called attention to the fact that the subject had never been systematically treated by writers on the common law and was of the opinion that common law lawyers seemed generally to have been strangers to the discussions on conflict of laws issues by the celebrated jurists of Continental Europe.Therefore,he synthesized and recast in a systematic fashion the writings of dozens of continental authors as well as several judicial decisions from England.Decidedly influenced by Huber’s Comity Doctrine,Story wrote this explanation of why one state applies the law of another:
“The true foundation on which the administration of international law must rest is,that the rules which are to govern are those which arise from mutual interest and utility,from a sense of the inconveniences which would result from a contrary doctrine,and from a spirit of moral necessity to do justice,in order that justice may be done to us in return.”4
The influence of Story’s work was profound,not only in the United States but also abroad.Savigny paid tribute to Story,5 and Martin Wolff called the American author “the secret teacher of the world.”6 According to Yntema,Story’s Commentaries amounted to a pioneer comparative survey of both the civil law doctrines and the English and American precedents with a scholarly understanding that has not since been surpassed and but barely equaled in England,the United States,or indeed elsewhere.
After Story,Joseph H.Beale possessed the stewardship of American conflicts doctrine,Beal rejected Story’s cosmopolitan perspective,discarded the notion of comity,and adopted the English doctrine of vested rights which dominated American conflicts law until the 20th century when a so-called “American Conflicts Revolution” broke out during which the theory of American conflicts law changed dramatically,affecting legal theory both within and outside of the United States.
2.2 American Conflicts Revolution
In recent decades,the world has become indebted to the United States of America for the creativity with which its scholars have formulated new theories in the field of conflict of laws.No law school course in private international law anywhere in the world today can be regarded as comprehensive if it fails to treat of the Restatement Second of the Conflict of Laws or the governmental interest analysis theory of Brainerd Currie.Throughout the twentieth century,American names,including,among others,Baxter,Beale,Cavers,Cheatham,Cook,Currie,Ehrenzweig,Lorenzen,Reese,Trautman,and the more recent Borchers,Juenger,Leflar,Lowenfeld,McDougal,von Mehren,and Weintraub,have been predominant in the development,testing and criticism of private international law theories.
American courts have been part of the process,being the anvils on which the ideas of the theorists have been hammered and tested.A veritable “American conflicts revolution,” as it is now commonly termed,has made an exciting contribution to an area of legal scholarship which otherwise might have stagnated several generations ago.7
For a general understanding of the “revolution,” several important scholars and their doctrines,together with the reflection of the Revolution—“The Second Restatement,” are briefly summarized as follows.
2.2.1 Cook—Local Law Theory
One of the earliest and most outspoken critics of the established choice-of-law system was Professor Walter W.Cook,who is usually described as the author of the “local law” theory.8 Cook attempted to explain the seemingly paradoxical application of foreign law by the forum,and to reconcile such application with the forum’s sovereignty.He argued that,in adjudicating cases with foreign elements that would otherwise be “governed” by foreign law,the forum neither applies foreign law,nor enforces a foreign vested right.Rather,it fashions a local law remedy that approximates the result provided by the pertinent foreign law.9
While this theory is of dubious explanatory value,it did have the effect of placing the lex fori at the center of choice-of-law thinking.Cook’s subliminal message was that the function of conflicts law is not to preserve the international order,but rather to carry out local law and policy.This was a drastic departure from the universalistic conception of private international law that characterized earlier generations of American scholars,including Story and Beale.
Cook’s main contribution to American conflicts law lies not in enunciating a new theory,but in deconstructing the traditional theory,and thus freeing the “intellectual garden” of conflicts law of “rank weeds” so that useful vegetables could grow and flourish.
Although Cook fell short of articulating an affirmative approach of his own,his writings contained many of the seeds of modern theories.For example,on the basic question of how the forum court should select the foreign law on which to “model” its rule of decision in multistate cases,Cook simply said that “the problem involved is that of legal thinking in general,” and that the forum should use “the same method actually used in deciding cases involving purely domestic torts,contracts,property,etc.”10 This resort to the “domestic method” for handling conflicts cases anticipated Brainerd Currie’s conception of the choice-of-law process as being based on the “ordinary process of construction and interpretation.” Cook’s reference to “socially useful” solutions to conflicts problems also anticipated the result-selectivity of many judicial decisions and academic commentators,and the notion that courts should not sacrifice material justice in the pursuit of “conflicts justice.”11 Moreover,Cook’s admonition that one should consider legislative purposes and policies “before a wise choice between conflicting rules can be made” reveals that,like many modern American scholars,Cook thought of the choice-of-law problem as one of choosing between competing rules,not competing legal orders or “jurisdictions” in the abstract.12
2.2.2 Cavers—Principles of Preference(https://www.daowen.com)
Professor David F.Cavers,who at the time shared many of Cook’s legal realist convictions,continued the attack on the traditional system.In his famous article “A Critique of the Choice-of-Law Problem,” Cavers further exposed the mechanical nature of the traditional methodology,which he compared to a slot-machine programme to select the applicable law in a “blindfold” fashion,based solely on territorial contacts and without regard to the content of the implicated laws.In his view,this exclusive reliance on territorial contacts and the insistence on using “jurisdiction-selecting” rules not only prevented a more individualized treatment of conflicts cases,but also prevented intelligent choices.After all,Cavers observed,“[T]he court is not idly choosing a law; it is deciding a controversy.How can it choose wisely without considering how that choice will affect that controversy?”13
Believing that a just result was the paramount goal of choice of law decisions,David Cavers called on courts to analyze the controlling policies underlying the different competing laws and the concrete results which their application would entail in the given case.These results were then to be appraised from the standpoint of justice or broader considerations of social policy.This process,argued Cavers,would eventually result in the development of criteria for assessing the competing social values advanced by the competing rules,so that the preferable rule could be identified.These criteria came to be known as Cavers’ “principles of preference.”
The main appeal of Caver’s approach is that it attempts a solution to the true conflict,but in the process,it attracts all the criticisms of any rule approach.It is still necessary to identify and evaluate state policies or interests.Uncertainty and unpredictability remain,even with principles of preference.This is because their evolution is seen in terms of judicial development and choice of law rules based on principles of such detail as is necessary.To accommodate so many varied policies will take a very long time to develop.14 This may be easier in a federal state,as Cavers himself admits,than with the type of international conflicts with which Chinese courts tend to be faced.
2.2.3 B.Currie—Governmental Interest Analysis
Cavers’ work was largely overshadowed by the figure of Brainerd Currie,who also rejected mechanical rules.His theory,which came to be known as “governmental interest analysis,” advocated that courts,in making choice of law decisions,seek to effectuate the legitimate interests of the state whose policies are most directly concerned by the event or transaction in question.The theory was predicated on the notion that every state has a legitimate interest in having its “social,economic or administrative policy” implemented in the resolution of the choice of law issue.15
Currie was instrumental in developing the distinction between “true” and “false” conflicts.Where there was no conflict of laws,or where one of those laws was not intended to apply to the case at bar,there was a “false conflict,” which obviated the need for any choice of law.In such cases,only one state had a genuine interest in having its law applied.That state was often the forum state.Where,however,the competing laws were different,and where the policies underlying each of them had a genuine claim to application,there was a “true conflict.” True conflicts required the forum court to consider whether a more restrained interpretation of the policies or interests of one state could avoid the conflict.If not,then the lex fori was to be applied in all cases.Currie opposed all efforts at weighing the competing interests at stake in true conflicts situations,insisting that such an analysis was the province of the legislator,not of the courts.He also called for forum law in “unprovided for” cases,where neither the forum state nor any foreign state had an interest in seeing its law applied.16
Briefly speaking,the principal characteristics of Currie’s system are three fold: first,instead of allocating an entire relationship to a particular state in jurisdiction-selecting fashion,it requires a separate analysis of each issue posed by multistate transaction to ascertain what rule of decisions governs; second,the personal nexus of a party with a state is more important than territorial contacts; and third,all doubts are resolved in favor of the lex fori.17
Currie’s theory,therefore,legitimated a virtually total deference to forum law,entrenching the “homeward trend” in American conflicts thinking.Both concepts are rooted in a nihilistic rejection of traditional conflicts theory.[1]They also tend to promote forum shopping and to deny the two historic goals of private international law: the quest for justice in the individual case and the search for uniform,predictable solutions.
Nevertheless,Currie’s doctrine has influenced a large number of subsequent conflicts authors,while governmental interests and policies were accorded a measure of recognition in the Restatement Second of the Conflict of Laws.Interest analysis,in modified form,is also the paramount theory implemented in practice in decisions of courts on tort conflicts in at least three U.S.jurisdictions today; viz.,California,the District of Columbia and New Jersey.18
2.2.4 F.K.Juenger—Multistate Justice
Professor Friedrich K.Juenger,is one of the true “grand masters” of international comparative law.His original,incisive,and voluminous scholarship,and his teaching and lecturing throughout the world,have left an indelible mark in this field.
Juenger challenged the two foundational premises of classical and modern private international law.The first premise is that the proper,if not the only,way to resolve multistate conflicts is by choosing the law of the one or the other of the involved states or countries (the “conflictual” or “selectivist” method).Juenger argued that,although prevalent today,the selectivist method is neither inevitable nor the best available.Invoking previous historical precedents dating as far back as ancient Rome,he argued for a “substantivist” method,which,rather than applying the existing law of one of the involved states,would construct a new substantive rule for the particular multistate case drawn from the laws of both,or all,of the involved states.
The second premise of classical private international law is that the goal of the choice-of-law process is to choose the state that has the “proper” spatial or factual relationship with the case and then apply its law,for better or worse,namely,regardless of the quality of the result which that law produces (“conflicts justice”).Juenger vehemently rejected this premise in favor of the “material justice” view.This view begins with the premise that multistate cases are not qualitatively different from domestic cases and thus judges should not abdicate their responsibility to resolve a dispute justly and fairly just because of the presence of multistate elements.Juenger forcefully argued that resolving multistate disputes in a manner that is substantively equitable and fair to the litigants should be a goal of private international law as much as it is of internal law.Justice should not be dispensed in gradations,and private international law should not accept a lesser quality of justice.Thus,rather than uncritically accepting the assumption that the law of the “proper” state is necessarily the proper law,Juenger would directly search for the law that would actually produce the better substantive result.In his view,the goal of the process should be to attain true “material justice” rather than merely “conflicts justice.”
2.2.5 The Restatement Second of the Conflict of Laws
In 1969,with the American Conflicts Revolution in full swing,the American Law Institute adopted the Restatement Second of the Conflict of Laws.[2]Although it was a compilation of multiple numbered rule like its predecessor,the Restatement Second was also very different,in that it blended into its black-letter rules (which partly still reflected traditional doctrine) certain elements found in one or other of the more modern conflicts theories,notably governmental interest analysis.It also took account of the importance of connecting factors,or contacts,permitting the identification of the law having the “closest and most real connection” with the parties and transactions concerned.19
Section 6 of the Restatement Second lays out seven “Choice of Law Principles,” being criteria to be borne in mind by courts in making choice-of-law decisions: (1) the needs of the interstate and international systems; (2) the relevant policies of the forum; (3) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue; (4) the protection of justified expectations; (5) the basic policies underlying the particular field of law; (6) certainty,predictability and uniformity of result; and (7) ease in the determination and application of the law to be applied.20
The Restatement Second further incorporates the proper law theory,in its inclusion,especially in Rule 188 on contract conflicts,that the law to be applied,in the absence of an express choice by the parties,is the law having the “most significant relationship” to the parties and the transaction.The “most significant relationship” is also the key concept in tort conflicts under rule 145.In both cases,specific contacts (e.g.the domicile,residence or nationality of the parties; the place of negotiation,conclusion and performance of the contract,the place of the injury and the conduct causing its occurrence) assist in pointing to the proper law.
The Restatement Second has been described as:“...the most impressive,comprehensive and valuable work on the conflict of laws that has ever been produced in any country,in any language,at any time.”21 The importance of the Restatement Second is also seen in the fact that it today constitutes the fundamental source of private international law in the United States,being applied by twenty-one states in tort conflicts and twenty-five states in contract conflicts.22