Conflict of Laws Commons^™

Book Review, Ralf Michaels

Faculty Scholarship

No abstract provided.

Private Lawyer In Disguise? On The Absence Of Private Law And Private International Law In Martti Koskenniemi’S Work, Ralf Michaels

Faculty Scholarship

No abstract provided.

Brief Of Professor Stephen E. Sachs As Amicus Curiae In Support Of Neither Party, Stephen E. Sachs

Faculty Scholarship

The parties in this case defend two sides of a many-sided circuit split. This brief argues that a third view is correct.

If a contract requires suit in a particular forum, and the plaintiff sues somewhere else, how may the defendant raise the issue? Petitioner Atlantic Marine Construction Company suggests a motion under Federal Rule of Civil Procedure 12(b)(3) or 28 U.S.C. § 1406, on the theory that the contract renders venue improper. Respondent J-Crew Management, Inc. contends that venue remains proper, and that the defendant¹s only remedy is a transfer motion under § 1404.

Both sides are wrong. Forum-selection …

From Multiculturalism To Technique: Feminism, Culture And The Conflict Of Laws Style, Karen Knop, Ralf Michaels, Annelise Riles

Faculty Scholarship

The German chancellor, the French president and the British prime minister have each grabbed world headlines with pronouncements that their state’s policy of multiculturalism has 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 there is also a widely noted brain drain from feminism. 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.” …

Jurisdiction And Choice Of Law In International Antitrust Law - A Us Perspective, Ralf Michaels, Hannah L. Buxbaum

Faculty Scholarship

No abstract provided.

How Collective Settlements Camouflage The Costs Of Shareholder Lawsuits, Richard Squire

Faculty Scholarship

Corporations insure against liability in shareholder lawsuits by buying tiered coverage from multiple insurers who each cover a distinct segment of the potential damages range. Rather than negotiating to settle individually with the plaintiff, the insurers seek to reach a single, collectively binding settlement agreement. This combination of segmented coverage and collective settlements produces a conflict of interests: the corporation’s managers and some insurers are better off if the case settles pre-trial for the expected damages, while other insurers are better off going to trial. To force reluctant insurers to settle, courts have created a duty that can require an …

Conflict Of Norms Or Conflict Of Laws?: Different Techniques In The Fragmentation Of International Law, Ralf Michaels, Joost H.B. Pauwelyn

Faculty Scholarship

One of the most pressing topics in current international law is fragmentation. Traditionally, most constructive attempts to deal with fragmentation have been based on analogies what one of us, in an earlier book, called "conflicts of norms" - those rules in domestic law that deal with conflicts of norms within one legal system. In this article, we assess under what circumstances a different approach, based on an analogy to conflict of laws - those rules in domestic law that deal with conflicts of norms between different legal systems - yields a more adequate structure. The result is that public international …

A Unified Theory Of International Law, The State, And The Individual: Transnational Legal Harmonization In The Context Of Economic And Legal Globalization, James D. Wilets

Faculty Scholarship

This Article presents an original theory of international law which reconciles the norm-making processes occurring at the international, state, and individual levels. It is the central thesis of this paper that economic globalization is not happening in a vacuum, but it is rather engendering legal globalization, much in the way that centralized regulation followed trans-state economic globalization within the United States and Europe.

Traditional definitions of international law do not address this phenomenon and consider these new forms of transnational norm creation as simply exceptions to the general rule that international law is created by nation-states within the framework of …

International Law In Domestic Courts: A Conflict Of Laws Approach, Ralf Michaels, Karen Knop, Annelise Riles

Faculty Scholarship

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 …

Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler

Faculty Scholarship

Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …

After The Revolution – Decline And Return Of U.S. Conflicts Of Laws, Ralf Michaels

Faculty Scholarship

Scholars in the US have become uninterested in conflict of laws, at least in the core issues that spurred the conflict of laws revolution, especially questions of method and areas of tort and contract law. Proposals for a new (third) Restatement have not yet led very far. By contrast, new interest comes from the fringes: special political questions and interdisciplinarity. As to the first, I use the example of same‑sex marriages to discuss the extent to which discussions about politics are inseparably linked with discussions over conflict of laws. Conflict of laws is here not a mere additional field in …

Umdenken Für Die Unidroit - Prinzipien: Vom Rechtswahlstatut Zum Allgemeinen Teil Des Transnationalen Vertragsrechts [Rethinking The Unidroit Principles: From A Law To Be Chosen By The Parties Towards A General Part Of Transnational Contract Law], Ralf Michaels

Faculty Scholarship

The most talked-about purpose of the UNIDROIT Principles of International and Commercial Contracts (PICC) is their applicability as the law chosen by the parties. However, focusing on this purpose in isolation is erroneous. The PICC are not a good candidate for a chosen law - they are conceived not as a result of the exercise of freedom of contract, but instead as a framework to enable such exercise. Their real potential is to serve as objective law - as the general part of transnational contract law.

This is obvious in practice. Actually, choice of the PICC is widely possible. National …

Book Review, Ralf Michaels

Faculty Scholarship

reviewing, Denationalisierung des Privatrechts? Symposium anlässlich des 70. Geburtstages von Karl Kreuzer" (Eva-Maria Kieninger ed., Mohr Siebeck 2005))

Preemption And Federal Common Law, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Public-Private Distinction In The Conflict Of Laws, William S. Dodge

Faculty Scholarship

No abstract provided.

Truth, Deterrence, And The Impeachment Exception , James L. Kainen

Faculty Scholarship

James v. Illinois permits illegally-obtained evidence to impeach defendants, but not defense witnesses. Thus far, all courts have construed James to allow impeachment of defendants' hearsay declarations. This article argues against allowing illegally-obtained evidence to impeach defendants' hearsay declarations because doing so unduly diminishes the exclusionary rule's deterrent effect. The distinction between impeaching defendants and defense witnesses disappears when courts allow prosecutors to impeach defendants' hearsay declarations. Because defense witnesses report exculpatory conduct of a defendant who always has a substantial interest in disguising his criminality, their testimony routinely incorporates defendant hearsay. Defense witness testimony thus routinely paves the way …

Globalizing Savigny: The State In Savigny’S Private International Law, And The Challenge Of Europeanization And Globalization, Ralf Michaels

Faculty Scholarship

How can conflict of laws respond to the challenges from globalization? Some argue that state-based approaches like governmental interest analysis are inadequate, and advocate a return to the approach taken by the German scholar Savigny in the 19th century. The article shows that the assumption is correct: state-based approaches have indeed become problematic. However, a return to Savigny's approach will not help: While Savigny's approach is multilateral and pays little regard to governmental interest, closer analysis reveals how central the state is to his theory. The consequences are shown in an analysis of a recent European case. It follows that …

Auctioning For Loyalty: Selection And Monitoring Of Class Counsel, Alex Stein, Alon Harel

Faculty Scholarship

No abstract provided.

Joltin' Joe Has Left And Gone Away: The Vanishing Presumption Against Preemption, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Fifteen Years After The Federal Sentencing Revolution: How Mandatory Minimums Have Undermined Effective And Just Narcotics Sentencing Perspectives On The Federal Sentencing Guidelines And Mandatory Sentencing, Ian Weinstein

Faculty Scholarship

Federal criminal sentencing has changed dramatically since 1988. Fifteen years ago, judges determined if and for how long a defendant would go to jail. Since that time, changes in substantive federal criminal statutes, particularly the passage of an array of mandatory minimum penalties and the adoption of the federal sentencing guidelines, have limited significantly judicial sentencing power and have remade federal sentencing and federal criminal practice. The results of these changes are significantly longer federal prison sentences, as was the intent of these reforms, and the emergence of federal prosecutors as the key players in sentencing. Yet, at the same …

Fear Of Commitment In International Bankruptcy, Frederick Tung

Faculty Scholarship

This article discusses the difficult questions of conflict and cooperation among national bankruptcy regimes that arise with the failure of a multinational firm. The firm's failure typically leaves assets and unpaid creditors in several jurisdictions, but no overarching international bankruptcy system exists. Instead, the national bankruptcy laws of several states might plausibly apply to the firm's bankruptcy or particular aspects of the case. Though multinational firm failure has become more and more common, states have made precious little progress in regularizing coordination or cooperation among national bankruptcy systems. Uncoordinated territorial competition is the norm, resulting in complex conflicts of law. …

Prologomenon To An Empirical Restatement Of Conflicts, William M. Richman, William L. Reynolds

Faculty Scholarship

No abstract provided.

Robert Leflar, Judicial Process, And Choice Of Law, William L. Reynolds, William M. Richman

Faculty Scholarship

No abstract provided.

Regulating The Market For Snitches , Ian Weinstein

Faculty Scholarship

These are boom times for the sellers and buyers of cooperation in the federal criminal justice system. While prosecutors have always welcomed the assistance of snitches, tougher federal sentencing laws have led to a significant increase in cooperation as more defendants try to provide "substantial assistance in the investigation or prosecution of another person," to have some chance of receiving a significant sentence reduction. In 1996 one of every five defendants sentenced in the federal courts won mitigation by providing substantial assistance. Many more defendants tried but failed to close the deal. The overheated cooperation market is creating serious problems …

Conflicts Of Interest In Scientific Expert Testimony, Mark R. Patterson

Faculty Scholarship

Conflicts of interest have significant implications for the reliability of scientific expert testimony. However, the courts' treatment of conflicts is not always in accord either with the treatment of conflicts in scientific practice or with the particular problems that scientists' conflicts present in court. In response, this Article proposes two basic changes in the treatment of scientific expert testimony. First, courts should strive to separate issues of bias from issues of scientific validity-the two sets of issues are now conflated at times. Second, courts should pay more attention to biases of scientists who perform the research underlying expert testimony, whereas …

Substantial Assistance And Sentence Severity: Is There A Correlation Substantial Assistance, Ian Weinstein

Faculty Scholarship

How much more severe are sentences imposed in districts with low substantial assistance rates than those in which the rate is very high? In the aggregate, not at all. At first blush this may puzzle readers because substantial assistance (SA) departures are very unevenly distributed across districts and SA accounts for nearly two-thirds of all downward departures, almost 7,900 of the 12,000 in fiscal 1996. Although this pattern could result in gross disparities among districts, my analysis of inter-district sentencing patterns reveals no statistically significant correlation between the rate of SA departures and the average length of sentences imposed in …

Legal Process And Choice Of Law, William L. Reynolds

Faculty Scholarship

No abstract provided.

What Happens When Parties Fail To Prove Foreign Law?, William L. Reynolds

Faculty Scholarship

No abstract provided.

Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski

Faculty Scholarship

A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, …

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

Faculty Scholarship

[The author] 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. Ignorning international family law is unwise, because many United States citizens and lawyers are likely to confront such problems.