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 …

On The Limits Of Supremacy: Medical Marijuana And The States' Overlooked Power To Legalize Federal Crime, Robert A. Mikos

Vanderbilt Law Review

Using the conflict over medical marijuana as a timely case study, this Article explores the overlooked and underappreciated power of states to legalize conduct Congress bans. Though Congress has banned marijuana outright, and though that ban has survived constitutional scrutiny, state laws legalizing medical use of marijuana not only survive careful preemption analysis, they constitute the de facto governing law in thirteen states. This Article argues that these state laws and most related regulations have not been and, more interestingly, cannot be preempted by Congress, given constraints imposed on Congress's preemption power by the anti-commandeering rule, properly understood. The Article …

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 …

State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia Jr.

Vanderbilt Law Review

In the debate over how federal courts should interpret federal statutes, "faithful agent" theories stand pitted against "dynamic" theories of statutory interpretation. The following questions lie at the heart of the debate: Is the proper role of federal courts to strive to implement the commands of the legislature-in other words, to act as Congress's faithful agents? Or, is the proper role of federal courts to act as partners with Congress in the forward-looking making of federal law-in other words, to interpret statutes dynamically? Proponents of faithful agent theories include both "textualists" and "purposivists." Textualists have argued that federal courts best …

From The Oau To The Au: A Normative Shift With Implications For Peacekeeping And Conflict Management, Or Just A Name Change?, Jonathan D. Rechner

Vanderbilt Journal of Transnational Law

Many of the nations of Africa have struggled with violence since their independence from colonial powers. The formation of an intercontinental body, the Organization for African Unity, did little to reduce the number or severity of the conflicts. The failure of this organization to maintain peace was due in large part to normative boundaries that prevented its involvement in the internal conflicts of its member nations. The Organization of African Unity was dissolved in favor of a new organization, the African Union, in 2001. The mandate of the African Union is much more proactive than that of its predecessor with …

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 …

Cyprus In Europe: Seizing The Momentum Of Nice, Patrick R. Hugg

Vanderbilt Journal of Transnational Law

In December 2000 the European Council Summit in Nice fulfilled the promise for European Union enlargement made at the Helsinki Summit the year before. The leaders of the EU Member States reaffirmed their commitment to the accession of the applicant countries, making possible the broad re-unification of the continent under democratic rule of law and free market economies. This Article focuses specifically on the accession of the island of Cyprus, Europe's remaining divided state, poised strategically between East and West. The island's armed stand-off presents the clearest example of legal conflict between two ethnic communities in a discrete geographical territory, …

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; …

The Internationalization Of Contractual Conflicts Law, Patrick J. Borchers

Vanderbilt Journal of Transnational Law

Professor Borchers maintains that United States conflict of laws rules regarding contracts have long had an international character. This Article reviews the development of contractual conflicts law and examines how, through Joseph Story's treatises, the United States law in this area assumed an international perspective.

These international influences have played and will increasingly play an important role in the development of U.S. contractual conflicts rules. This influence can be seen in both choice-of-forum and choice-of-law agreements. Both have been upheld by U.S. courts initially in international cases, which presented starker contrasts in choice of law or choice of forum. Once …

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 …

An Analysis Of The Proposition Of Accession Of The European Communities To The European Convention On Human Rights, Yves Quintin

Vanderbilt Journal of Transnational Law

Considering the numerous problems created by the accession, including the length of time required and the administrative burdens placed on the EC, one may question the value of this project. The creation of a catalogue of rights, however, will require as much time as the accession. As Professor Schermers points out, producing such a catalogue specifically for the EC will further split Western Europe, isolate the other members of the Council of Europe, and limit the effectiveness of the ECHR to the extent that the provisions in the catalogue would offer higher standards of protection. One may argue, however, that …

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, …

Responding To Transnational Cartels: A Proposal And Its Background, Journal Editor

Vanderbilt Journal of Transnational Law

The titles in the following section address various aspects of the problems that the United States faces in attempting to impose liability for actions by international cartels in violation of United States antitrust law. Representative Albert Gore has introduced legislation in the last two sessions of congress which he feels will assist in alleviating many of these problems. Mr. Gore's current legislation, the Cartel Registration Act, is the subject of his article in which he takes a strong advocacy position on its behalf.

The Cartel Restriction Act in its present form evolved from the considerable comment, both favorable and unfavorable, …

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 …

Book Reviews, Arthur D. Austin, John N. Hazard

Vanderbilt Law Review

The Case Against Oligopoly: A New Perspective--

Campaigns of corporate aggrandizement have always attracted a wide assortment of camp followers, with politicians and academics among the most persistent. To the politician, corporate size is a convenient and headline-provoking punching bag (and, during election time, a plentiful source of funding), while many a professor has established a reputation--and made money--by criticizing, extolling, or analyzing its various components. In a series of public hearings, the Senate Subcommittee on Antitrust and Monopoly, with Dr. John Blair as chief economist, produced a subdued blend of both callings. Drawing heavily but not exclusively from the …

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

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 …