Conflict of Laws Commons^™

Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, And Democratic Design, Sheldon Evans

Faculty Publications

Statutory interpretation is a unique legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in legal realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into …

Rethinking The Conflicts Revolution In Personal Jurisdiction, Jesse M. Cross

Faculty Publications

It is widely acknowledged that, from roughly 1940 to 1970, a revolution occurred in Conflicts of Law. Referred to as the “Conflicts revolution,” this movement remade nearly every legal test in the field. According to conventional wisdom, this revolution rejected the same idea in each instance: namely, that Conflicts tests should be grounded in a theory of sovereignty. Instead, the argument goes, it pivoted the field to pragmatic tests that focus on practicality, fairness, and convenience.

As this Article explains, this conventional wisdom is incorrect. It misunderstands the intellectual revolution that remade the field, and it has generated needless confusion …

A Global System Of Work, A Global System Of Regulation?: Crowdwork And Conflicts Of Law, Miriam A. Cherry

Faculty Publications

(Excerpt)

The on-demand economy has truly gone global. Consider online platform TaskRabbit, a U.S.-based site for odd jobs. A high number of TaskRabbit’s users were seeking help with the construction of furniture they purchased at IKEA, and skilled carpenters started using the platform to find customers. Corporate management at Swedish company IKEA noticed the trend, and as a result acquired TaskRabbit in 2017. As a result, a Swedish company now owns a platform labor service in the United States and Britain, with plans to expand the TaskRabbit platform to twenty-seven more countries where IKEA currently owns brick and mortar stores. …

The Erie Doctrine: A Flowchart, Michael S. Green

Faculty Publications

No abstract provided.

The Return Of The Unprovided-For Case, Michael S. Green

Faculty Publications

No abstract provided.

Book Review: Private International Law In English Courts, S. I. Strong

Faculty Publications

Although debates about cooperation versus competition make for good scholarly fodder, this issue actually has an important practical component, as demonstrated by Professor Adrian Briggs of the University of Oxford in his masterful new book, Private International Law in English Courts. Like all truly superlative texts, Professor Briggs's book is deceptively accessible. The prose is not only elegant and eloquent, it is peppered with the dry wit one would expect from an Oxford don.

Property, Exclusivity, And Jurisdiction, James Y. Stern

Faculty Publications

No abstract provided.

Limits Of Procedural Choice Of Law, S. I. Strong

Faculty Publications

Commercial parties have long enjoyed significant autonomy in questions of substantive law. However, litigants do not have anywhere near the same amount of freedom to decide procedural matters. Instead, parties in litigation are generally considered to be subject to the procedural law of the forum court.

Although this particular conflict of laws rule has been in place for many years, a number of recent developments have challenged courts and commentators to consider whether and to what extent procedural rules should be considered mandatory in nature. If procedural rules are not mandatory but are instead merely “sticky” defaults, then it may …

Conferring Dignity: The Metamorphosis Of The Legal Homosexual, Noa Ben-Asher

Faculty Publications

The legal homosexual has undergone a dramatic transformation over the past three decades, culminating in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act (DOMA). In 1986, the homosexual was a sexual outlaw beyond the protection of the Constitution. By 2013, the homosexual had become part of a married couple that is “deemed by the State worthy of dignity.” This Article tells the story of this metamorphosis in four phases. In the first, the “Homosexual Sodomite Phase,” the United States Supreme Court famously declared in Bowers v. Hardwick that there was no right …

Choice Of Law As General Common Law: A Reply To Professor Brilmayer, Michael S. Green

Faculty Publications

No abstract provided.

Mandatory Rules, Scott Dodson

Faculty Publications

Whether a limitation is jurisdictional or not is an important but often obscure question. In an article published in Northwestern University Law Review, I proposed a framework for courts to resolve the issue in a principled way, but I left open the next logical question: what does it mean if a rule is characterized as nonjurisdictional? Jurisdictional rules generally have a clearly defined set of traits: they are not subject to equitable exceptions, consent, waiver, or forfeiture; they can be raised at any time; and they can be raised by any party or the court sua sponte. This jurisdictional rigidity …

Choice Of Law, The Constitution And Lochner, James Y. Stern

Faculty Publications

No abstract provided.

Appreciating Mandatory Rules: A Reply To Critics, Scott Dodson

Faculty Publications

It seems that few are pleased with the Court’s recent decision in Bowles v. Russell, in which the Court held the time limit for filing a notice of appeal to be jurisdictional and therefore not susceptible to the unique circumstances doctrine. As I wrote in this original essay, I believe the Court disrupted prior precedent and missed a golden opportunity to develop, in a principled way, a framework for characterizing rules as jurisdictional or not, and I adhere to those views. Three have responded to my essay. Professor Beth Burch criticizes Bowles for some of the same …

Anti-Federalist Procedure, A. Benjamin Spencer

Faculty Publications

"[T]he new federal government will ... be disinclined to invade the rights of the individual States, or the prerogatives of their governments."

"[T]he Constitution of the United States ... recognizes and preserves the autonomy and independence of the States-independence in their legislative and independence in their judicial departments. . . . Any interference with either, except as [constitutionally] permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence."

The understanding expressed by these opening quotes-that the national government was designed to be one of limited powers that would refrain from encroaching …

Corporations And Autonomy Theories Of Contract: A Critique Of The New Lex Mercatoria, Nathan B. Oman

Faculty Publications

One of the central problems of contracts jurisprudence is the conflict between autonomy theories of contract and efficiency theories of contract. One approach to solving this conflict is to argue that in the realm of contracts between corporations, autonomy theories have nothing to say because corporations are not real people with whose autonomy we need to be concerned. While apparently powerful, this argument ultimately fails because it implicitly assumes theories of the corporation at odds with economic theories of law. Economics, in turn, offers a vision of the firm that is quite hospitable to autonomy theories of contract. The failure …

Legal Realism, Lex Fori, And The Choice-Of-Law Revolution, Michael S. Green

Faculty Publications

No abstract provided.

Federalism, State Courts, And Section 1983, Gene R. Nichol

Faculty Publications

No abstract provided.

Criminal Procedure And The Conflict Of Laws, John Bernard Corr

Faculty Publications

No abstract provided.

Modern Choice Of Law And Public Policy: The Emperor Has The Same Old Clothes, John Bernard Corr

Faculty Publications

The author critically evaluates the adoption of the modern learning model in choice of law analysis. After evaluating the judiciary's use of this model in seven jurisdictions, the author concludes that the traditional learning is better suited to resolving choice of law issues.

Interest Analysis And Choice Of Law: The Dubious Dominance Of Domicile, John Bernard Corr

Faculty Publications

No abstract provided.

Mcmillan V. Mcmillan: Choice Of Law In A Sinkhole, Doug R. Rendleman

Faculty Publications

No abstract provided.

Conflict Of Spousal Immunity Laws: The Legislature Takes A Hand, Dale A. Whitman

Faculty Publications

During the 1967 session of the North Carolina General Assembly, the legislators made a novel excursion into the realm of conflict of laws, modifying the state's traditional rule of lex loci delicti as it applies to spousal immunity. The purpose of this comment is to explore the legal background and examine the possible effects of the new statute, and to consider its implications for existing choice-of- law doctrine. At common law, neither spouse could bring an action against the other for negligently inflicted injury. Such a rule leads to a good deal of manifest injustice, and it has been abandoned …

Addenda To "Renvoi, Characterization, Localization And Preliminary Question In The Conflict Of Laws", Joseph M. Cormack

Faculty Publications

No abstract provided.

Renvoi, Characterization, Localization And Preliminary Question In The Conflict Of Laws: A Study Of Problems Involved In Determining Whether Or Not The Forum Should Follow Its Own Choice Of A Conflict-Of-Laws Principle, Joseph M. Cormack

Faculty Publications

No abstract provided.

California Conflict Of Laws In Regard To Contracts, Joseph M. Cormack

Faculty Publications

No abstract provided.

Conflict Of Laws In Regard To Contracts In Field Code States Other Than California, Joseph M. Cormack

Faculty Publications

No abstract provided.

Conflict Of Laws: Foreign Tax Suits, Joseph M. Cormack

Faculty Publications

No abstract provided.