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Articles 1 - 19 of 19
Full-Text Articles in Conflict of Laws
Minding The Empagran Gap, Maggie Gardner
Minding The Empagran Gap, Maggie Gardner
Cornell Law Faculty Publications
No abstract provided.
Parochial Procedure, Maggie Gardner
Parochial Procedure, Maggie Gardner
Cornell Law Faculty Publications
The federal courts are often accused of being too parochial, favoring U.S. parties over foreigners and U.S. law over relevant foreign or international law. According to what this Article terms the “parochial critique,” the courts’ U.S.-centrism generates unnecessary friction with allies, regulatory conflict, and access-to-justice gaps. This parochialism is assumed to reflect the preferences of individual judges: persuade judges to like international law and transnational cases better, the standard story goes, and the courts will reach more cosmopolitan results.
This Article challenges that assumption. I argue instead that parochial doctrines can develop even in the absence of parochial judges. Our …
Limiting The Last-In-Time Rule For Judgments, Kevin M. Clermont
Limiting The Last-In-Time Rule For Judgments, Kevin M. Clermont
Cornell Law Faculty Publications
A troublesome problem arises when there are two binding but inconsistent judgments: Say the plaintiff loses on a claim (or issue) in the defendant’s state and then, in a second action back home, wins on the same claim (or issue). American law generally holds that the later judgment is the one entitled to preclusive effects. In the leading article on the problem, then-Professor Ruth Bader Ginsburg suggested that our last-in-time rule should not apply if the U.S. Supreme Court declined to review the second court’s decision against giving full faith and credit. Although that suggestion is unsound, the last-in-time rule …
Data Institutionalism: A Reply To Andrew Woods, Zachary D. Clopton
Data Institutionalism: A Reply To Andrew Woods, Zachary D. Clopton
Cornell Law Faculty Publications
In "Against Data Exceptionalism," Andrew K. Woods explores “one of the greatest societal and technological shifts in recent years,” which manifests in the “same old” questions about government power. The global cloud is an important feature of modern technological life that has significant consequences for individual privacy, law enforcement, and governance. Yet, as Woods suggests, the legal challenges presented by the cloud have analogies in age-old puzzles of public and private international law.
Identifying these connections is a conceptual advance, and this contribution should not be understated. But, to my mind, the most telling statement in Woods’s excellent article comes …
Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton
Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton
Cornell Law Faculty Publications
The American class action is a procedural tool that advances substantive law values such as deterrence, compensation, and fairness. Opt-out class actions in particular achieve these goals by aggregating claims not only of active participants but also passive plaintiffs. Full faith and credit then extends the preclusive effect of class judgments to other U.S. courts. But there is no international full faith and credit obligation, and many foreign courts will not treat U.S. class judgments as binding on passive plaintiffs. Therefore, some plaintiffs may be able to wait until the U.S. class action is resolved before either joining the U.S. …
Managing Regulatory Arbitrage: An Alternative To Harmonization, Annelise Riles
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.
From Multiculturalism To Technique: Feminism, Culture, And The Conflict Of Laws Style, Karen Knop, Ralf Michaels, Annelise Riles
From Multiculturalism To Technique: Feminism, Culture, And The Conflict Of Laws Style, Karen Knop, Ralf Michaels, Annelise Riles
Cornell Law Faculty Publications
The German Chancellor, the French President, and the British Prime Minister have each grabbed world headlines with pronouncements that their states' policies of multiculturalism have failed. As so often, domestic debates about multiculturalism, as well as foreign policy debates about human rights in non- Western countries, revolve around the treatment of women. Yet feminists are no longer even certain how to frame, let alone resolve, the issues raised by veiling, polygamy, and other cultural practices oppressive to women by Western standards. Feminism has become perplexed by the very concept of "culture." This impasse is detrimental both to women's equality and …
International Law In Domestic Courts: A Conflict Of Laws Approach, Karen Knop, Ralf Michaels, Annelise Riles
International Law In Domestic Courts: A Conflict Of Laws Approach, Karen Knop, Ralf Michaels, Annelise Riles
Cornell Law Faculty Publications
The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system's jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as "theory through technique."
In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between …
Transdisciplinary Conflict Of Laws Foreword: Cavers's Double Legacy, Karen Knop, Ralf Michaels, Annelise Riles
Transdisciplinary Conflict Of Laws Foreword: Cavers's Double Legacy, Karen Knop, Ralf Michaels, Annelise Riles
Cornell Law Faculty Publications
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Ex Ante Choices Of Law And Forum: An Empirical Analysis Of Corporate Merger Agreements, Theodore Eisenberg, Geoffrey P. Miller
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 …
A New Agenda For The Cultural Study Of Law: Taking On The Technicalities, Annelise Riles
A New Agenda For The Cultural Study Of Law: Taking On The Technicalities, Annelise Riles
Cornell Law Faculty Publications
This article urges humanistic legal studies to take the technical dimensions of law as a central focus of inquiry. Using archival and ethnographic investigations into developments in American Conflict of Laws doctrines as an example, and building on insights in the anthropology of knowledge and in science and technology studies that focus on technical practices in scientific and engineering domains, it aims to show that the technologies of law - an ideology that law is a tool and an accompanying technical aesthetic of legal knowledge - are far more central and far more interesting dimensions of legal practice than humanists …
The Role Of Private International Law In The United States: Beating The Not-Quite-Dead Horse Of Jurisdiction, Kevin M. Clermont
The Role Of Private International Law In The United States: Beating The Not-Quite-Dead Horse Of Jurisdiction, Kevin M. Clermont
Cornell Law Faculty Publications
Territorial authority to adjudicate is the preeminent component of private international law. Empirical research proves that forum really affects outcome, probably by multiple influences. This practical effect makes international harmonization of jurisdictional law highly desirable. Although harmonization of nonjurisdictional law remains quite unlikely, jurisdictional harmonization is increasingly feasible because, among other reasons, U.S. jurisdictional law in fact exhibits no essential differences from European law. None of the usual assertions holds up as an unbridgeable difference, including that (1) the peculiar U.S. jurisdictional law flows inevitably from a different theory of governmental authority, one that rests on power notions; (2) U.S. …
The Choice-Of-Law Revolution In The United States: Notes On Rereading Von Mehren, Gary J. Simson
The Choice-Of-Law Revolution In The United States: Notes On Rereading Von Mehren, Gary J. Simson
Cornell Law Faculty Publications
No abstract provided.
Conflicts Of Interest Under The Revised Model Rules, W. Bradley Wendel
Conflicts Of Interest Under The Revised Model Rules, W. Bradley Wendel
Cornell Law Faculty Publications
No abstract provided.
Leave Bad Enough Alone, Gary J. Simson
Leave Bad Enough Alone, Gary J. Simson
Cornell Law Faculty Publications
No abstract provided.
Resisting The Allure Of Better Rule Of Law, Gary J. Simson
Resisting The Allure Of Better Rule Of Law, Gary J. Simson
Cornell Law Faculty Publications
No abstract provided.
The Concept Of Function And The Basis Of Regulatory Interests Under Functional Choice-Of-Law Theory: The Significance Of Benefit And The Insignificance Of Intention, Gregory S. Alexander
The Concept Of Function And The Basis Of Regulatory Interests Under Functional Choice-Of-Law Theory: The Significance Of Benefit And The Insignificance Of Intention, Gregory S. Alexander
Cornell Law Faculty Publications
Recent literature and judicial opinions have recognized the need for control and consistency in choice of law. Although the formulation of choice-of-law theory in terms of the states' interests in the conflicting rules at issue has gained wide acceptance, the courts have been unable to agree upon criteria for determining when a state has a valid interest in dispute resolution. Moreover, courts frequently appear all too eager to use contemporary choice-of-law analysis to justify local regulation of multistate disputes despite insubstantial local relationships. The inconsistency and local bias both stem from the lack of a coherent theory for discerning the …
The Application And Avoidance Of Foreign Law In The Law Of Conflicts: Variations On A Theme Of Alexander Nekam, Gregory S. Alexander
The Application And Avoidance Of Foreign Law In The Law Of Conflicts: Variations On A Theme Of Alexander Nekam, Gregory S. Alexander
Cornell Law Faculty Publications
Lying at the heart of all conflicts theories is a recognition that the function of the law of conflicts is to ensure rational and just solutions to controversies involving foreign elements. A just and rational solution is one that somehow accommodates those elements. This does not mean that the foreign law must be applied but simply suggests that at least some attention should be paid to that law in the process of resolving disputes. From these relatively uncontroversial postulates, one moves to the more difficult problem of defining the role of foreign law in the conflicts setting.
Attention in this …
A Rule Is A Rule Because It Is The Rule: Intellectual Crisis In Conflict Of Laws, E. F. Roberts
A Rule Is A Rule Because It Is The Rule: Intellectual Crisis In Conflict Of Laws, E. F. Roberts
Cornell Law Faculty Publications
No abstract provided.