Conflict of Laws Commons^™

Slapp-Ed Around: Examining The Use Of State Anti-Slapp Laws In Federal Cases, Jacob Dryer

Senior Honors Theses

This thesis explains Strategic Lawsuits Against Public Participation (SLAPPs) and examines the applicability of state anti-SLAPP laws in federal cases. Currently, the Federal Circuits are split on this issue, and the United States Supreme Court has not granted certiorari to any cases that have addressed this issue. This thesis reviews the jurisprudence related to the application of state anti-SLAPP laws in federal court. The author further examines what the Circuits have held about the applicability of anti-SLAPP laws and the rationales of each decision. Based on this information, this thesis argues that if the U.S. Supreme Court were to hear …

M/S Bremen V Zapata Off -Shore Company: Us Common Law Affirmation Of Party Autonomy, Ronald A. Brand

Book Chapters

In the 1972 decision in M/S Bremen v Zapata Off -Shore Company, the U.S. Supreme Court brought together the development of doctrines dealing with party autonomy in choice of court and forum non conveniens. Especially when considered alongside developments favoring arbitration clauses in U.S. courts, the case provides a rich study of conflicts of laws jurisprudence in the twentieth century. This chapter begins with a discussion of fundamental elements of the development of party autonomy in U.S. law and the historical context of the law prior to The Bremen. A brief mention of how one prominent political family …

Community Property And Conflict Of Laws: A Cacophony Of Cases, Karen Boxx

Articles

Justice Cardozo is reported to have said that "the average judge, when confronted by a problem in the conflict of laws, feels almost completely lost, and, like a drowning man, will grasp at a straw." Conflict of laws can be vexing, but the resolution of a controversy involving multiple states' marital property systems can quickly become impenetrable. This is in part due to the fundamental conceptual differences between community property and common law marital property paradigms, the inconsistencies in the use of similar terms in the different systems, and the significant differences among the laws of the community property states …

Characterisation And Choice Of Law For Knowing Receipt, Adeline Chong

Research Collection Yong Pung How School Of Law

Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This paper argues that under the common law, knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort …

Family Law Disputes Between International Couples In U.S. Courts, Rhonda Wasserman

Articles

Increasing mobility, migration, and growing numbers of international couples give rise to a host of family law issues. For instance, when marital partners are citizens of different countries, or live outside the country of which they are citizens, or move between countries, courts must first determine if they have jurisdiction to hear divorce or child custody actions. Given that countries around the world are governed by different legal regimes, such as the common law system, civil codes, religious law, and customary law, choice of law questions also complicate family litigation. This short article addresses the jurisdictional and other conflicts issues …

Choice Of Law And The Right Of Publicity: Rethinking The Domicile Rule, Mary Lafrance

Scholarly Works

Determining the best choice of law principle for right of publicity claims, and persuading courts to adopt this principle, will enhance predictability for potential plaintiffs and defendants in the foreseeable future. To begin this process, this article by Professor Mary LaFrance takes a critical look at the widespread practice of applying the law of the celebrity's domicile to determine the existence of an enforceable right of publicity.

This article suggests that there are strong policy arguments against the domicile rule, and that courts adhering to the rule are confusing disputes over property ownership with disputes over liability for tortious injury …

Certainty Versus Flexibility In The Conflict Of Laws, Kermit Roosevelt Iii

All Faculty Scholarship

Traditional choice of law theory conceives of certainty and flexibility as opposed values: increase one, and you inevitably decrease the other. This article challenges the received wisdom by reconceptualizing the distinction. Rather than caring about certainty or flexibility for their own sake, it suggests, we care about them because each makes it easier to promote a certain cluster of values. And while there may be a necessary tradeoff between certainty and flexibility, there is no necessary tradeoff between the clusters of values. It is possible to improve a choice of law system with regard to both of them. The article …

A Theoretical Perspective Of The Public Policy Doctrine In The Conflict Of Laws, Kenny Chng

Research Collection Yong Pung How School Of Law

The public policy doctrine in the conflict of laws hasbeen often characterised as uncertain and ambiguous. This article aims toexamine the doctrine at common law from a theoretical perspective in order to:first, determine whether the substantive considerations which courts haveinvoked under the public policy doctrine are theoretically justifiable; second,discern principled boundaries around the courts’ exercise of the defence. Througha study of case law and an examination from first principles of the normativebasis for the recognition of foreign laws and judgments, this article proposesa set of principles that can form the theoretical underpinning of the publicpolicy doctrine, and will examine how …

Choice-Of-Law Rules For Secured Transactions: An Interest-Based And Modern Principles-Based Framework For Assessment, Charles W. Mooney Jr.

All Faculty Scholarship

This essay examines the law applicable to secured transactions. It addresses in particular the codification of the choice-of-law rules for secured transactions (STCOL rules). These rules address the laws applicable to the creation, perfection, priority, and enforcement of security interests (security rights)—a form of legislative or statutory dépeçage. It draws on the 2016 UNCITRAL Model Law on Secured Transactions (Model Law) as well as relevant North American law (Uniform Commercial Code Article 9 and the Canadian provincial Personal Property Security Acts). The STCOL rules lie at the heart of the emerged and emerging modern principles of secured transactions law …

Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff

All Faculty Scholarship

For seventy-five years, Klaxon v. Stentor Electric Manufacturing has provided a one-line answer to choice-of-law questions in federal diversity cases: Erie requires the federal court to employ the same law that a court of the state would select. The simplicity of the proposition likely accounts for the unqualified breadth with which federal courts now apply it. Choice of law doctrine is difficult, consensus in hard cases is elusive, and the anxiety that Erie produces over the demands of federalism tends to stifle any reexamination of core assumptions. The attraction of a simple answer is obvious. But Klaxon cannot bear the …

Geolocation, Geoblocking, And Private International Law, Marketa Trimble

Boyd Briefs / Road Scholars

Prof. Marketa Trimble delivered her lecture Geolocation, Geoblocking and Private International Law on October 6, 2016 to students attending the Law School of Masaryk University in the Czech Republic.

Due Process As Choice Of Law: A Study In The History Of A Judicial Doctrine, Matthew J. Steilen

Journal Articles

This Article argues that procedural due process can be understood as a choice-of-law doctrine. Many procedural due process cases require courts to choose between a procedural regime characteristic of the common law - personal notice, oral hearing, neutral judge, and jury trial - and summary procedures employed in administrative agencies.

This way of thinking about procedural due process is at odds with the current balancing test associated with the Supreme Court’s opinion in Mathews v. Eldridge. This Article aims to show, however, that it is consistent with case law over a much longer period, indeed, most of American history. It …

A No-Tribunal Sdrm And The Means Of Binding Creditors To The Terms Of A Restructuring Plan, Charles W. Mooney Jr.

All Faculty Scholarship

The paper addresses two discrete but related and essential attributes of a sovereign debt restructuring mechanism (SDRM). It first considers the merits and feasibility of an SDRM that would provide a procedure for proposing and adopting a restructuring plan for a sovereign debtor’s debt which would not involve any tribunal or administrator (a No-Tribunal SDRM). The No-Tribunal SDRM would undertake the restructuring as if the sovereign debtor and its creditors were subject to the Model CAC regime. In addition to embodying a novel and interesting structure for an SDRM—and one that eliminates the difficult hurdle of identifying a satisfactory tribunal—adoption …

Extraterritorial Enforcement Of National Laws In Connection With Online Commercial Activity, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble displayed this slideshow during her presentation at the Fifth Annual Internet Law Works-in-Progress conference, held at Santa Clara Law on March 7, 2015.

Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble

Scholarly Works

The increasing frequency with which activities involving intellectual property (“IP”) cross national borders now warrants a clear definition of the territorial reach of national IP laws so that parties engaging in the activities can operate with sufficient notice of the laws applicable to their activities. Legislators, however, have not devoted adequate attention to the territorial delineation of IP law; in fact, legislators rarely draft IP statutes with any consideration of cross-border scenarios, and with few exceptions IP laws are designed with only single-country scenarios in mind. Delineating the reach of national IP laws is actually a complex matter because the …

The Multiplicity Of Copyright Laws On The Internet, Marketa Trimble

Scholarly Works

From the early days of the Internet, commentators have warned that it would be impossible for those who act on the Internet (“Internet actors”) to comply with the copyright laws of all Internet-connected countries if the national copyright laws of all those countries were to apply simultaneously to Internet activity. A multiplicity of applicable copyright laws seems plausible at least when the Internet activity is ubiquitous — i.e., unrestricted by geoblocking or by other means — given the territoriality principle that governs international copyright law and the choice-of-law rules that countries typically use for copyright infringements.

This Article posits that …

Legal Realism And The Conflict Of Laws, Kermit Roosevelt Iii

All Faculty Scholarship

What did legal realism bring to the conflict of laws? Why was the realist critique of the received wisdom so successful? And why, despite that success, is the realist movement in conflict of laws—and, indeed, the whole American choice of law revolution—seen as a failure?

In this Response, I suggest some brief answers to those questions. Realism, I suggest, is more successful than its critics think—though its project remains unfinished. A better understanding of realism's contributions can show us what work remains in the realist project.

Beyond Carve-Outs And Toward Reliance: A Normative Framework For Cross-Border Insolvency Choice Of Law, John A. E. Pottow

Articles

The title of this Article purports to develop a normative framework for cross-border insolvency choice of law. That can be a task of varying scope, so at the outset any pretense of ambition for a wholly new choice of law model should be dispelled. Indeed, at the most generalized level, bankruptcy choice of law theory has already been fully ventilated in the well-rehearsed universalism versus territorialism debates. And it has been settled. The universalists, at least as a normative matter, appear to have won: choice of law, as it is increasingly accepted, should be determined by the debtor's center of …

Advancing Ip Policy Through Conflict Of Laws Rules, Marketa Trimble

Boyd Briefs / Road Scholars

Prof. Marketa Trimble gave her presentation Advancing IP Policy through Conflict of Laws Rules at the IP Scholar Conference held August 8-9, 2013 at Cardozo School of Law.

Managing Regulatory Arbitrage: An Alternative To Harmonization, Annelise Riles

Cornell Law Faculty Publications

This policy-oriented article argues for deploying conflict of laws doctrines as a tool of coordination in international financial governance.

Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong

Faculty Articles

National courts are becoming increas­ingly involved with international commercial arbitration. Although this observa­tion may be disheartening to those who support the autonomy of the international arbitral regime, the continued interaction between courts and tribunals is less troubling to those who view international commercial arbitration as a "hybrid" method of dispute resolution, with numerous opportunities for permissible "border crossings. "

That is not to say that courts can or should become involved with every as­pect of arbitration. Instead, impermissible "border incursions" diminish the effec­tiveness of international commercial arbitration and could erode public or private support for the international arbitral regime. Therefore, …

In Defense Of The Substance-Procedure Dichotomy, Jennifer S. Hendricks

Publications

John Hart Ely famously observed, "We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure," but for most of Erie's history, the Supreme Court has answered the question "Does this state law govern in federal court? " with a "yes" or a "no." Beginning, however, with Gasperini v. Center for Humanities, and continuing with Semtek v. Lockheed Martin and the dissenting opinion in Shady Grove v. Allstate, a shifting coalition of justices has pursued a third path. Instead of declaring state law applicable or inapplicable, they have claimed for …

The Rome I Regulation Rules On Party Autonomy For Choice Of Law: A U.S. Perspective, Ronald A. Brand

Articles

This chapter was presented at a conference in Dublin on the (then) new Rome I Regulation of the European Union in the fall of 2009. It contrasts the Rome I rules on party autonomy with those in the United States. In particular, it considers the rules in the Rome I Regulation that ostensibly protect consumers by discouraging party agreement on a pre-dispute basis to the law governing a consumer contract. These rules are compared with the absence of private international law restrictions on choice of forum and choice of law in the United States, even in consumer contracts. The result …

Aggregation And Choice Of Law, Edward H. Cooper

Articles

This is more a conversational gambit than an article. I address a question at the intersection of procedure and choice of law, speaking as a proceduralist rather than a choice-of-law scholar. The question - which may be two questions - addresses the potential interdependence of procedural aggregation devices and choice of law. One part of the question is whether aggregation can justifiably change the choice of law made for some part of an aggregated proceeding. The other part is whether choice-of-law principles can be adapted to facilitate procedurally desirable aggregation. Answers may be sought either in abstract theory or in …

The European Magnet And The U.S. Centrifuge: Ten Selected Private International Law Developments Of 2008, Ronald A. Brand

Articles

This article considers ten developments in private international law that occurred in 2008. In doing so, it focuses on the way in which these developments demonstrate a parallel convergence of power for private international in the institutions of the European Community and dispersal of power for private international law in the United States. This process carries with it important implications for the future roles of both the European Union and the United States in the multilateral development of rules of private international law, with the EU moving toward an enhanced leadership role and the United States restricting its own ability …

Transdisciplinary Conflict Of Laws Foreword: Cavers's Double Legacy, Karen Knop, Ralf Michaels, Annelise Riles

Cornell Law Faculty Publications

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What Do We Really Know About The American Choice-Of-Law Revolution?, Hillel Y. Levin

Scholarly Works

This Book Review reviews Symeon Symeonides's recent book, The American Choice-of-Law Revolution: Past, Present and Future. I conclude that the book is required reading in the field and that it pushes the law in the right direction in significant ways. However, I suggest that it falls short in its effort to tell the full story of the Revolution, for two reasons. First, the data set is limited to published opinions. Second, we cannot evaluate the Revolution simply by looking at judicial opinions. I argue that scholarship and practice in Conflicts must reengage with one another, and offer a framework for …

The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

This Article proceeds in four parts. Part I discusses federal law as a new category of law after ratification of the Constitution and what that connotes for the time before federal law existed. Part II examines the shift from the natural law perspective, which had dominated jurisprudence into the late nineteenth century, to legal positivism. It was that change more than anything else that doomed the doctrine of Swift v. Tyson, which controlled vertical choice-of-law questions in the federal courts for ninety-six years until the Erie Court declared it unconstitutional. Part III canvasses the development of the Erie doctrine in …

The Myth (And Realities) Of Forum Shopping In Transnational Insolvency, John A. E. Pottow

Articles

A decade ago, in 1996, the landscape of transnational insolvencies was vastly different from today. The UNCITRAL Model Law had not been finished, the efforts at the E.U. Insolvency Treaty were jeopardized by mad cows, and no one had heard of Chapter 15. Now, all three universalist projects are up and running, putting universalism in a comfortable state of ascendancy. The paradigm has not been without critics, however, the most persistent and eloquent of which has been Professor Lynn LoPucki. LoPucki has periodically attacked universalism on a number of grounds. These grievances include a sovereigntist complaint of universalism's insensitivity to …

Ex Ante Choices Of Law And Forum: An Empirical Analysis Of Corporate Merger Agreements, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Legal scholars have focused much attention on the incorporation puzzle—why business corporations so heavily favor Delaware as the site of incorporation. This paper suggests that the focus on the incorporation decision overlooks a broader but intimately related set of questions. The choice of Delaware as a situs of incorporation is, effectively, a choice of law decision. A company electing to charter in Delaware selects Delaware law (and authorizes Delaware courts to adjudicate legal disputes) regarding the allocation of governance authority within the firm. In this sense, the incorporation decision is fundamentally similar to any setting in which a company selects …