Law Commons^™

Conflicting Justice In Conflict Of Laws, Roxana Banu

Vanderbilt Journal of Transnational Law

Choice-of-law rules determine which national law (not necessarily that of the forum) applies in private law matters that cross over multiple jurisdictions. Given the ubiquity of interpersonal cross-border relations, choice-of-law rules play an enormous role in securing justice in the transnational social realm. For example, they determine whether individuals can recover retirement benefits from worldwide investments through pension funds, whether they can receive compensation following an accident abroad, or whether their foreign marriages, divorces, adoptions, or support orders will be recognized or invalidated at home.

Yet the legal field of conflict of laws has always been divided between two theoretical …

Foreigners In Us Patent Litigation: An Empirical Study Of Patent Cases Filed In Nine Us Federal District Courts In 2004, 2009, And 2012, Marketa Trimble

Vanderbilt Journal of Entertainment & Technology Law

One of the greatest challenges facing patent holders is the enforcement of their rights against foreign (non-US) infringers. Jurisdictional rules can prevent patent holders from filing patent infringement suits where they have the greatest likelihood of success in enforcement, such as where the infringer is located, has its seat, or holds its assets. Instead, patent holders must file lawsuits in the country where the infringed patent was issued. But filing a patent lawsuit in a US court against a non-US infringer may be subject to various difficulties associated with the fact that US substantive patent law (particularly as regards its …

The Effects Test: Extraterritoriality's Fifth Business, Austen Parrish

Vanderbilt Law Review

The world has recently seen a tremendous expansion in countries using extraterritorial laws'-laws that regulate the activities of foreigners outside a country's borders. In the United States, domestic laws now commonly regulate extraterritorial conduct and transnational litigation has blossomed. No longer limited to the antitrust and commercial contexts, courts apply all sorts of public and private laws to activity occurring abroad. Academics have encouraged the trend, finding the notion that law should be tied to territory to be an archaic remnant of a preglobalized world. In an age of globalization, the argument goes, law should find national and political borders …

Liberating The Individual From Battles Between States, Matthias Lehmann

Vanderbilt Journal of Transnational Law

Current theories of conflict of laws have one common feature: they all consider the question of the applicable law in terms of a conflict between states. Legal systems are seen as fighting with each other over the application of law to a certain case. From this perspective, the goal of conflicts methods is to assign factual situations to the competent rule maker for resolution. Party autonomy presents a problem for this view: if individuals are allowed to choose which law will be applied to their dispute, it seems as if private persons could determine the outcome of the battle between …

Harold G. Maier: A World Class Fellow Indeed, Paul M. Kurtz

Vanderbilt Journal of Transnational Law

Hal Maier has played many roles in my life: he has been my teacher, my boss, my advisor, my colleague, and most and best of all, my friend. In all those roles, he has exhibited enthusiasm, patience, tact, and brilliance. Not at all a bad combination, I would say.

Come with me back to his classroom, circa 1970-1971. The subject is Conflict of Laws (which was required back then) or Law of the European Economic Community (which one with no interest in international law only took because of the masterful teacher). Clad in white shirt and oh-so-narrow tie which he …

Transnational Litigation: Is There A "Field"? A Tribute To Hal Maier, Linda Silberman

Vanderbilt Journal of Transnational Law

I was pleased to be asked to offer a few words in honor of my friend, Professor Hal Maier, on the occasion of his retirement from Vanderbilt University Law School. I owe a particular debt of gratitude to Hal, not only because he has been a wonderful friend and colleague over the years, but also because he sparked my interest in a field to which I had only recently turned when we first met and one that now absorbs much of my time and attention. The "field"--if it can be characterized as such--is "international litigation" or "transnational litigation," and that …

A Teacher's Teacher, Lonnie T. Brown Jr.

Vanderbilt Journal of Transnational Law

Jackie Robinson once said, "A life is not important except in the impact it has on other lives." By that measure, Harold Maier has led an extraordinarily important life. I know that he has had a profound impact on innumerable students throughout his career and upon one in particular. I continue to learn because Professor Maier inspired me, and I teach others because of the wonderful example he set. Though he has now left the classroom, Professor Maier's legacy as a teacher will always endure through the countless minds he has awakened and lives he has touched.

Self-Settled Spendthrift Trusts: Should A Few Bad Apples Spoil The Bunch?, Gideon Rothschild, Daniel S. Rubin, Jonathan G. Blattmachr

Vanderbilt Journal of Transnational Law

It is unfortunate, but perhaps not terribly surprising, that the first two reported cases to consider the application of conflict of laws principles to self-settled spendthrift trusts both involved "bad facts" from an asset protection planning standpoint. In this regard, the adage "bad facts produce bad law" is not a slight on the courts, but rather an acknowledgment of a court's primary duty to do substantial justice to the parties immediately before it. However, in an effort to do substantial justice to the parties immediately before them, the Portnoy and Brooks courts have forged what may well become the first …

Conflicts On The Net: Choice Of Law In Transnational Cyberspace, Matthew R. Burnsteln

Vanderbilt Journal of Transnational Law

No recent technological advance has captured the attention and imagination of the United States and the international community like the advent of global communications networks--the Internet, Cyberspace, the Information Superhighway. While the technology advances daily, a legal regime for ordering cyberspace has not yet evolved. Already, cases are reaching the courts in which plaintiffs complain of improper and unlawful activities by defendants in cyberspace. Both cyberspace's growing ubiquity and the anonymity found online will increase international use of the networks for interaction and commerce. This Note considers the conflict of laws implications of transnational cyberspace. The need to consider choice …

Editors' Introduction, Journal Editor

Vanderbilt Journal of Transnational Law

The following symposium contains articles based on papers presented at the Annual Meeting of the Association of American Law Schools, Section on Conflict of Laws, in New Orleans, Louisiana, January 6, 1995. The Section's program, Conflict of Laws in the Global Village: International Conflicts Issues for the General Course in Conflict of Laws, was organized by Professor Harold G. Maier of Vanderbilt University Law School, who was Chair of the Conflicts Section. The program was designed to identify and discuss current international conflict of laws issues that might fruitfully be explored in the general course on Conflict of Laws.

Professor Lowenfeld Responds, Andreas F. Lowenfeld

Vanderbilt Journal of Transnational Law

Professor Silberman is as usual gracious in acknowledging my writings in various formats, and my efforts to restore conflict of laws to its place as a branch of international law, a place it has occupied in most of the world outside the United States, and occupied here as well in the view of Story and others who wrote before the balkanization of American law in the latter part of the nineteenth century. We have no disagreements on the value of the comparative method in teaching conflict of laws, civil procedure, or international litigation.

This brief response is addressed only to …

The 1994 Inter-American Convention On The Law Applicable To International Contracts, And Trends For The 1990s, Harold S. Burman

Vanderbilt Journal of Transnational Law

This Article emphasizes the importance of teaching transnational materials in the conflict of laws class. The rapid development of the "global village" has increased the importance and need for law students to understand how conflicts issues are resolved throughout the world. A failure to address transnational issues will leave students unprepared for the world, especially the legal marketplace, that they will enter after law school.

The author suggests that the traditional study of public international law, regarding the law governing relations between states, as well as the law between states and intergovernmental and nongovernmental organizations, is insufficient for contemporary law …

Why Teach International Family Law In Conflicts?, William L. Reynolds

Vanderbilt Journal of Transnational Law

Professor Reynolds sets forth a challenge to conflicts professors: to teach international family law in their conflict of laws classes. At present, many conflicts professors avoid teaching international family law, in part because the study of this subject is complicated by several statutes addressing particularly difficult issues. Ignoring international family law is unwise, because many United States citizens and lawyers are likely to confront such problems.

Moreover, this Article suggests several additional reasons for including international family law in the general conflicts course. First, litigants entangled in divorce and custody proceedings with international complications face high financial and emotional costs; …

Judicial Jurisdiction In The Conflict Of Laws Course: Adding A Comparative Dimension, Linda J. Silberman

Vanderbilt Journal of Transnational Law

In this Article, Professor Silberman suggests that comparative law materials can usefully be introduced in the conflict of laws course. She proposes the subject of adjudicatory jurisdiction as a good place to start. She argues that a comparison of the U.S. approach with the English and European approaches (particularly under the Brussels Convention) is evidence of the desirability of a jurisdictional system grounded more on rules and/or discretion rather than on a constitutional standard of reasonableness. She takes issue with the contention of her colleague Professor Andreas Lowenfeld that "reasonableness" has been accepted as an international standard for the assertion …

Conflict Of Laws And Accuracy In The Allocation Of Government Responsibility, Joel P. Trachtman

Vanderbilt Journal of Transnational Law

The field of conflict of laws suffers from a lack of theoretical coherence, and therefore fails to provide a satisfactory basis for discourse, adjudication, legislation, and inter-governmental negotiation regarding issues of prescriptive scope. This Article advances a law and economics-based approach to conflict of laws for use in both the domestic and international context. The Article first assesses the theoretical coherence of some principal conflict of laws approaches, analyzing their resolution of four tensions: predictability and adminstrability versus accuracy, unilateralism versus multilateralism, private interest versus public interests, and courts versus legislatures. It refers to Professor Baxter's "comparative impairment" methodology as …

Baseball And Chicken Salad: A Realistic Look At Choice Of Law, Harold G. Maier

Vanderbilt Law Review

Most conflict of laws teachers come to their calling because they are fascinated with the intellectual variety of the subject matter and the sense of systemic universality that pervades the legal decisions with which they work. We deal, after all, with some very fundamental aspects of law and the legal system in a world of fascinating abstractions mixed with concrete decisions. Although I have taken no survey, conversations with many of my colleagues suggest that they, as did I, found the course Conflict of Laws in the second or third year of law school to be one that reawakened the …

The Troublesome Workings Of The Judgments Convention Of The European Economic Community, Errol P. Mendes

Vanderbilt Journal of Transnational Law

The problems involved in the jurisdiction by consent provisions in article seventeen and the special rules for insurance claims in articles seven through fifteen have to some extent been dealt with by the provisions of the Judgments Accession Convention as have the problems arising under the hire purchase and credit sale transactions. Nevertheless, a comprehensive definition of the term "consumer sale" is needed from the European Court.

There can be little doubt that both lawyers and litigants who are affected by the Convention, would prefer to operate under the conflict of laws rules of their own nations which, although complex, …

Recent Decisions, Susan A. Shands

Vanderbilt Journal of Transnational Law

This case presented the district and circuit courts with the problem of how to maneuver the forum's conflict of laws rules in order to apply Texas law to an injury caused by a defective product manufactured in Texas when the injury occurred on foreign soil. On a policy basis, the lower courts did make the more equitable decision in applying Texas law. Viewed under one commentator's test, both lower courts were applying the law that would give the most predictable and uniform results, maintain international and interstate order, simplify the judicial task, advance the forum's interest, and apply the better …

Coordination Of Laws In A National Federal State: An Analysis Of The Writings Of Elliott Evans Cheatham, Harold G. Maier

Vanderbilt Law Review

This Article is prepared at the request of the Editorial Board of the Vanderbilt Law Review in commemoration. It, however, is not designed as a tribute to Cheatham--the man and the teacher. Tributes of that kind were collected and published four years before his death in the December 1968 issue of the Review. In this essay, I have attempted to analyze Elliott Cheatham's scholarly contributions in the field of conflict of laws, one of his two major areas of legal research. When I began its preparation, it was with a deep feeling of personal involvement since Elliott was responsible for …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Conflict of Laws--False Conflicts--Federal Court Sitting in Diversity Action May Find "False Conflict" and Ignore Forum State's Choice of Law Rule When One State Has Clearly Predominant Interest

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Constitutional Law--Creditors' Rights--Civil Arrest Statutes that Promote Valid State Objectives and Provide Procedural Fairness Do Not Violate the Due Process Requirements of the Fourteenth Amendment

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Constitutional Law--Supremacy Clause--State Supreme Court Not Bound To Follow Federal District Court Decision on Constitutionality of Municipal Ordinance

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Securities Regulation--Franchises--Franchise Agreement that Permits Active Participation by the Franchisee in the Operation of the Business and Does Not Provide the Franchisor with Risk …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--Burden of Proof--"Clear Proof" Standard Applied to Union Liability Under Sherman Act

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Antitrust--Robinson-Patman Act--Private Litigants Need Not Show Consequential Damages in Order to Recover Treble Damages for Price Discrimination Violations

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Antitrust Remedies--State Given Standing to Sue as Parens Patriae

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Civil Rights--State Action Not Required Under Sections 1981,1982, and 1985(3) of Title 42; Action "Under Color of State Constitutional Right" Satisfies the "Color of Law" Requirement of Section 1983

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Conflict of Laws--"Contacts" Approach Rejected--Lex LociDelicti Applied Until Undeniably Better Rule is Found

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Conflict of Laws--Criminal Procedure--Law of Forum Applies to Search and Seizure in Accused's Out-of-State …

The Uniform Child Custody Jurisdiction Act: A Legislative Remedy For Children Caught In The Conflict Of Laws, Brigitte M. Bodenheimer

Vanderbilt Law Review

The National Conference of Commissioners on Uniform State Laws has approved and recommended for enactment in all the states a Uniform Child Custody Jurisdiction Act. This Act is designed to alleviate the plight of "interstate children" an apt phrase coined by Professor Ehrenzweig and descriptive of the rootlessness of children shifted from state to state--who are the victims of custody battles often fought in the courts of more than one state or a state and a foreign country. In this article, Mrs. Bodenheimer, Reporter for the Special Committee which drafted the Act, describes the social and legal causes of the …

Book Reviews, John A. Gorfinkel, Arthur S. Miller, Bruce L. Mcdonald

Vanderbilt Law Review

American Conflicts Law By Robert A. Leflar Indianapolis: Bobbs-Merrill Co., Inc., 1968. Pp. lxxvi, 677. $19.50

reviewer: John A. Gorfinkel

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The Policy-Making Process By Charles E. Lindblom EnglewoodCliffs: Prentice-Hall, Inc. 1968. Pp. 122. $4.95 (Cloth), $1.95 (Paper).

reviewers: Arthur S.Miller, Bruce L. McDonald

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust-Informal Price--Information Exchanges Held Violative of Sherman Act

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Conflict of Laws--"Contacts" Doctrine Applied to Supplement Federal Maritime Law in Diversity Action

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Constitutional Law--Fourteenth Amendment Prohibits Extended Postponement of Parole Consideration for State Inmate When Made on the Basis of an Unreliable Factual Determination

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Labor Law--Collective Bargaining-Employer May Not Enforce Collective Bargaining Agreement Provision Embodying Union Waiver of Employee's Right to Solicit Against That Union

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Labor Law-Remedies--NLRB May Order Retroactive Payment of Fringe Benefits Where Employer Wrongfully Refuses to Sign Collective Bargaining Agreement

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Religious Societies--First Amendment Prohibits Civil Courts From Determining Doctrinal Questions in Resolving Church …

The Published Works Of Elliott E. Cheatham, Law Review Staff

Vanderbilt Law Review

The Published Works of Elliott E. Cheatham

conflict of laws, legal education, professional standards

BOOKS CASES AND MATERIALS ON CONFLICT OF LAWS Chicago, 1936(with others); 2d edition, 1941; 3d edition, Brooklyn, 1951; 4th edition, 1957; Supplement, 1961; 5th edition, 1964.

CASES AND OTHER MATERIALS ON THE LEGAL PROFESSION. Chicago, 1938; 2d edition, Brooklyn, 1955.

COURS GENERAL SUR PROBLEMES ET METHODES EN MATIERE DECONFLIT DE LOIS. Paris, 1960. A LAWYER WHEN NEEDED. New York, 1963.

ARTICLES

What Can Law Schools Do to Raise the Standards of the Legal Profession? Symposium on Co-operative Efforts to Raise the Standards of the Legal Profession), …

Elliott Evans Cheatham, Willis L.M. Reese

Vanderbilt Law Review

Cheatham has made a marked imprint through his teaching and his writing on five areas of the law: international law, property, legal education, the legal profession, and conflict of laws. Of these, the legal profession is probably the field where his influence has been most deeply felt. Indeed, it is largely because of his ground-breaking casebook that the subject figures so prominently today in law school curriculums. Likewise, his Carpentier Lectures of a few years ago on "A Lawyer When Needed" provided the entering wedge into a subject that is of great contemporary significance. What Cheatham has done in the …

Elliott E. Cheatham, Erwin N. Griswold

Vanderbilt Law Review

After a full career on the faculty of the Columbia Law School,Professor Cheatham has had a new career as a member of the faculty of the Vanderbilt University Law School. During this period, his writing has never ceased, and it is always lively and original.Elliott Cheatham has been one of the great legal scholars of our time. He has also been one of the great persons in law teaching. He has been a great inspiration not only to his students, but also to the law teachers who have tried to follow in his footsteps.

Elliot E. Cheatham, Phillip C. Jessup

Vanderbilt Law Review

A man of great courage and a fighter for principle, he would never surrender, but if conscience and conviction permitted, he would have great pleasure in giving. As one of our other colleagues has suggested to me, Elliott Cheatham's greatness as a teacher' is due to the fact that he is always eager to give. I have witnessed many examples of Elliott's modesty, which should not be mistaken for any wobbly lack of self-confidence. When he pleads that he has limitations which suggest the desirability of seeking someone else for an honor or place of distinction or a juridical contribution, …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Divorce-- Minimum Contacts Doctrine Extended to Non-Resident in Alimony Award

Conflict of Laws--Torts--Law of Forum Applies to Accident Involving Only Out-of-State Motorists

Constitutional Law--Desegregation--States Are Required To Take Affirmative Action To Desegregate Higher Education Facilities

Constitutional Law--Selective Service Act--Fifth Amendment Requires Civil Judicial Review of Draft Board Classification and Induction Orders

Public Welfare--Substitute Father Regulation Inconsistent with Social Security Act and Invalid Criterion for Denying AFDC Payments to Needy Children

Taxation--Corporate Income Tax--Pre-Sale Declaration of Dividend by Subsidiary in Amount Equal to Retained Earnings Held Tax-Exempt Inter-Corporate Dividend on Receipt by Parent

Conflict Of Laws -- Constitutionality Of State Statutes Governing Ability Of Nonresident Aliens To Receive Property Under American Wills: Zschernig V. Miller, Richard N. Hale

Vanderbilt Law Review

An excellent illustration of the vertical conflict of laws problem involves the ability of nonresident aliens to receive property under American wills. Traditionally, under the American federal system,the acquisition and transmission of property located within a state has been controlled by state law. Yet article I, section 10 of the United States Constitution imposes strict limitations on a state's power to deal with matters having a bearing on international relations, such matters being within the ambit of the national government. The supremacy of the national government in the general field of foreign affairs has been given continuous recognition by the …