Conflict of Laws Commons^™

Conflict Of Laws And The Disposition Of Decedents' Movables, David Plimpton

Maine Law Review

Improved travel and communication, a larger, more fluid population and the resulting increase in the number of persons owning property in more than one state have led to a marked increase in conflict of laws situations and also have dramatized the need for their solution. However, it is also true that the degree to which potential conflicts problems exist is a function of the extent to which the law differs between states, not only differences in substantive law but also differences with respect to choice-of-law rules formulated to deal with conflicts between substantive law. One widely accepted choice-of-law principle has …

Silent Trusts And The Conflicts Of Laws, Jeffrey A. Schoenblum

Vanderbilt Law School Faculty Publications

There are good reasons why the settlor of a trust may not wish the beneficiaries of the trust to know of its existence at the time that the trust is created and funded or even for years thereafter. The settlor may not want beneficiaries to learn of the trust's existence until they have matured, accomplished a specific task, become self-supporting, or abandoned prob- lematic or destructive behaviors. In other instances, the settlor may not, in principle, be opposed to the beneficiaries learning about the existence of the trust but does not want to grant direct access to the trust instrument …

A Plea For Private International Law (Conflict Of Laws), Michael S. Green

Faculty Publications

In this essay, author Michael S. Green discusses private international law and its importance in a law school's curriculum. After a brief summary of the history of private international law, the essay traces the disappearance of private international law courses in American law schools and proposes reasons as to why this trend may be occurring. The essay closes with reasons why it is a mistake to remove private international law from course offerings and requests that law schools reintroduce the topic.

Posteriores Priores: An Unconstitutional Congressional Role In Treaty Termination, Donna D. Mckeage

Maine Law Review

The Supreme Court recently decided a case involving an apparent conflict between a treaty provision and a subsequent act of Congress. A Japanese subsidiary corporation, Sumitomo Shoji America, Inc., claimed a provision of the Treaty of Friendship, Commerce, and Navigation of 1953 between the United States and Japan exempted it from the prohibition against discrimination embodied in title VII of the Civil Rights Act of 1964. The Court did not reach this issue because it found Sumitomo Shoji America, Inc. to be a United States corporation and unable, therefore, to invoke the provisions of the treaty. The issue raised in …

Bouford V. Bath Iron Works: Defining Double Recovery Under State And Federal Compensation Laws For Maritime Workers, John Arthur Mccauley

Maine Law Review

In Bouford v. Bath Iron Works Corp., the Maine Supreme Judicial Court, sitting as the Law Court, held that an employer is not entitled to credit disability payments made under the federal Longshore and Harbor Workers' Compensation Act (LHWCA) against a subsequent obligation to pay a permanent impairment award for the same injury under the Maine Workers' Compensation Act (MWCA). While adhering to the principle against "double recovery" by employees in cases in which there is concurrent jurisdiction of federal and state compensation schemes, the Law Court reasoned that state permanent impairment awards are not duplicative of LHWCA disability benefits …

The Penal Judgment Exception To Full Faith And Credit: How To Bind The Bounty Laws, Walker Mckusick

Washington Law Review

In the current moment of interstate friction over abortion, the penal judgment exception poses a barrier against interstate enforcement of bounty laws. A doctor who prescribes a medicated abortion to a Texas patient may be exposed to civil liability—even in faraway Washington State. A Washington court asked to enforce a Texas judgment against the doctor is subject to the Full Faith and Credit Clause. Article IV, Section 1 of the United States Constitution mandates that each state give full faith and credit to judgments rendered in sister states. Under Texas Senate Bill 8 (S.B. 8), any member of the public …

(Not) Right On Time: Interpretation Of "Pertinent Time" For Bancec Alter Ego Analysis And Its Effect On Attaching Foreign Sovereign Assets, James Hardman

University of Cincinnati Law Review

No abstract provided.

Directed Trusts And The Conflict Of Laws, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

Directed trusts are an extremely important development in trust law, indeed truly transformative, because they challenge what was presumed to be the "irreducible core" of the trust.' That is, the trustee owes certain nonwaivable fiduciary obligations to the beneficiaries with regard to the management of the trust estate and also with respect to distributions.

The directed trust in its radical format, as found to a greater or lesser degree in Tennessee, Nevada, South Dakota, and Delaware, represents a fundamental assault on this irreducible core of trust law because, with respect to investments and distributions, new actors, known as trust advisers …

How To Survive The Culture Wars: Conflict Of Laws Post-Dobbs, Roger Michalski

Faculty Articles

Abortion is the latest flashpoint in the culture wars. Post-Dobbs, red and blue states are hard at work codifying different approaches within their boundaries. However, pills, women, transactions, medical services, and information will cross those boundaries. Both sides already fight about who gets to regulate such boundary-crossing activity with each accusing the other of trespassing on the regulatory space of their disagreeing neighbors. This is dangerous terrain. A house divided against itself needs tools to mediate and constructively tackle conflict. Without such tools, divisions will deepen and provide an endless stream of incidents to further divide the country. The choice …

In Search Of: A Federal Safe Harbor For State Legalization Of Psilocybin, Kathryn L. Tucker, Holly Martinez, Ebony Morris

Lewis & Clark Law Review

In 2020, Oregon voters passed the Oregon Psilocybin Services Act (PSA). The PSA allows for the adult use of psilocybin at designated service centers and does not require a medicinal purpose for consumption. While the use of psilocybin becomes legal in Oregon in 2023 under the PSA, psilocybin remains a Schedule I substance under the federal Controlled Substances Act. This conflict between state legalization and federal prohibition creates significant challenges for individuals and businesses intending to abide by the requirements of the PSA—including the potential of jail time, fines, and forfeiture of property. This Essay explores three potential solutions the …

Characterisation And Choice Of Law For Knowing Receipt, Adeline Chong

Research Collection Yong Pung How School Of Law

Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This paper argues that under the common law, knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort …

Problems Of Conflict Of Laws On The Issue Of Inheritance Between Those Of Different Religions Under The Algerian Law: Analytical Study, M’Hamedi Bouzina Amina

مجلة جامعة الإمارات للبحوث القانونية UAEU LAW JOURNAL

What is established in Islamic law is the non-permissibility of inheritance between the Muslim and non-Muslim, which is also the case in the Arab laws, including the laws of countries that define the sectarian diversity of personal status; as in Egyptian law through Article VI of Law No. 77 of 1943 On the inheritance of non-succession between the Muslim and non-Muslim, which was followed by the Lebanese law of June 23, 1959, but if we return to the Algerian law, we find that he did not establish a base of attribution on this issue, and in the absence of a …

Extraterritoriality And Conflict Of Laws, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Article views the modern federal presumption against the extraterritoriality of U.S. law through the lens of conflict of laws. It argues that the presumption makes many of the same mistakes that conflict methodologies have already made, and sometimes the mistakes are worse. It then proposes a way to harmonize federal extraterritoriality and state choice of law to identify a superior approach to both.

But We Didn’T Agree To That!: Why Class Proceedings Should Not Be Implied From Silent Or Ambiguous Arbitration Clauses After Lamps Plus, Inc. V. Varela, Andrea Demelo Laprade

Catholic University Law Review

The application of class arbitrability when a contract is silent on the matter remains a mystery. The Supreme Court has not clarified its stance on class arbitrability and preemptive effects of the Federal Arbitration Act on state law when applied to determine if class arbitrability is available. The purpose of this Paper is to address how the Lamps Plus v. Varela decision created more confusion about the question of class arbitrability. It argues that the failure to address the particulars of the availability of class arbitration will perpetuate litigation on this issue. This Paper suggests that the FAA’s purpose supports …

Problems Of Conflict Of Laws On The Issue Of Inheritance Between Those Of Different Religions Under The Algerian Law: Analytical Study, M’Hamedi Bouzina Amina

UAEU Law Journal

What is established in Islamic law is the non-permissibility of inheritance between the Muslim and non-Muslim, which is also the case in the Arab laws, including the laws of countries that define the sectarian diversity of personal status; as in Egyptian law through Article VI of Law No. 77 of 1943 On the inheritance of non-succession between the Muslim and non-Muslim, which was followed by the Lebanese law of June 23, 1959, but if we return to the Algerian law, we find that he did not establish a base of attribution on this issue, and in the absence of a …

Conflict Scholarship In Partisan Times, Roger Michalski

Other Faculty Publications

No abstract provided.

The Past, Present, And Future Of The Restatement Of Copyright, Shyamkrishna Balganesh, Jane C. Ginsburg

Faculty Scholarship

It is now six years since the American Law Institute (ALI) began work on its first ever Restatement of an area dominated by a federal statute: copyright law. To say that the Restatement of the Law, Copyright (hereinafter “Restatement”) has been controversial would be a gross understatement. Even in its inception, the ALI identified the project as an outlier, noting that it was likely to be seen as an “odd project” since copyright “is governed by a detailed federal statute.”1 Neither the oddity nor the novelty of the project, however, caused the ALI to slow its efforts to push the …

Moving Towards Harmonisation In The Recognition And Enforcement Of Foreign Judgment Rules In Asia, Adeline Chong

Research Collection Yong Pung How School Of Law

This paper provides a comparative overview of the laws on the recognition and enforcement of foreign judgments in ASEAN and Australia, China, India, Japan and South Korea. It considers the principles which are shared in common and the significant differences in the laws on foreign judgments in the region. This paper argues that the laws which are canvassed here share many principles, albeit the interpretation on certain aspects may differ. Though differences exist, the differences are becoming less sharp. Further, there is a practical need for harmonisation in the region given the plans for closer economic integration in the region. …

Delaware's New Competition, William J. Moon

Faculty Scholarship

According to the standard account in American corporate law, states compete to supply corporate law to American corporations, with Delaware dominating the market. This “competition” metaphor in turn informs some of the most important policy debates in American corporate law.

This Article complicates the standard account, introducing foreign nations as emerging lawmakers that compete with American states in the increasingly globalized market for corporate law. In recent decades, entrepreneurial foreign nations in offshore islands have used permissive corporate governance rules and specialized business courts to attract publicly traded American corporations. Aided in part by a select group of private sector …

An International Approach To Maritime Conflicts Of Law, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Essay seeks to answer two interrelated questions about regnant maritime choice of law analysis in the United States: Does it descriptively capture international law as the United States claims? And, if so, is such an approach a good one? In so doing, it aims principally to provide national and international decision makers with a robust and fresh resource for resolving these disputes in a manner, I argue, beneficent to overall social welfare and peaceful relations among states. For only by analyzing the United States’ claim can we tell whether it is true and thus, whether it needs to be …

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 …

Short History Of The Choice-Of-Law Clause, John F. Coyle

University of Colorado Law Review

In the field of conflict of laws, private actors are generally granted the power to choose the law to govern their contracts. This is the doctrine of party autonomy. In recent years, this doctrine has been the subject of several excellent histories that draw upon judicial opinions, scholarly writings, and legislative enactments to chronicle changing attitudes toward party autonomy over time. A moment's reflection, however, reveals that judges, scholars, and legislatures are not the most important actors in this story. The true protagonists are the contracting parties who write choice-of-law clauses into their agreements, without which there would be no …

Private International Law As An Ethic Of Responsivity, Ralf Michaels

Faculty Scholarship

The world is a mess. Populism, xenophobia, and islamophobia; misogyny and racism; the closing of borders against the neediest—the existential crisis of modernity calls for a firm response from ethics. Why, instead of engaging with these problems through traditional ethics, worry about private international law, that most technical of technical fields of law? My claim in this chapter: not despite, because of its technical character. Private international law provides such an ethic, an ethic of responsivity. It provides us with a technique of ethics, a technique that helps us conceptualise and address some of the most pressing issues of our …

U.S. Conflict Of Laws Involving International Estates And Marital Property: A Critical Analysis Of "Estate Of Charania V. Shulman", Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

A number of states, as well as foreign jurisdictions, impose a community property regime. Under this regime, regardless of the title to property, each spouse is deemed to own a fifty percent interest in assets. When a spouse dies owning property in his own name, the tendency is to treat him as the owner of the asset in full for purposes of the power to dispose of the asset and for transfer tax purposes. However, if the property is community property, then the decedent 's power to dispose of it, and the portion of the property subject to taxation, is …

Habitual Residence V. Domicile: A Challenge Facing American Conflicts Of Laws, Mo Zhang

Maine Law Review

Habitual residence has now become an internationally accepted connecting factor in conflict of laws and is widely being used as an alternative to, or replacement of, domicile. This concept, however, remains remote to American conflict of laws. Although the use of habitual residence in the U.S. courts is mandated by the codification of the Hague Child Abduction Convention, there is still a lack of general acceptance in American conflict of law literature. The Article argues that habitual residence should be adopted as a conflict of law connecting factor in American conflict of laws, and it would be unwise for the …

A Theoretical Perspective Of The Public Policy Doctrine In The Conflict Of Laws, Kenny Chng

Research Collection Yong Pung How School Of Law

The public policy doctrine in the conflict of laws hasbeen often characterised as uncertain and ambiguous. This article aims toexamine the doctrine at common law from a theoretical perspective in order to:first, determine whether the substantive considerations which courts haveinvoked under the public policy doctrine are theoretically justifiable; second,discern principled boundaries around the courts’ exercise of the defence. Througha study of case law and an examination from first principles of the normativebasis for the recognition of foreign laws and judgments, this article proposesa set of principles that can form the theoretical underpinning of the publicpolicy doctrine, and will examine how …

Choice Of Law In Ohio: Two Steps Routinely Missed, Richard S. Walinski

Akron Law Review

At last tally, courts in fewer than half of the states look to the Restatement (Second) Conflict of Laws for any part of their choice-of-law rules. Ohio, however, is in the minority that does. In fact, Ohio has endorsed the Restatement (Second) with surprising enthusiasm. The Supreme Court of Ohio took the unusual step of announcing in 1984 and again in 2007 that it has “adopted” the Restatement (Second) “in its entirety” for resolution of all conflict-of-law questions that arise in this state.

Despite the court’s wholesale endorsement of the Restatement (Second), the courts of Ohio—including the supreme court itself—do …

Determining The Territorial Scope Of State Law In Interstate And International Conflicts: Comments On The Draft Restatement (Third) And On The Role Of Party Autonomy, Hannah L. Buxbaum

Articles by Maurer Faculty

Analyzing a conflict of laws requires thinking both about the scope of potentially applicable law and about priority, or choice, among potentially applicable laws. The Restatement (Second) of Conflict of Laws, published in 1971, contains little guidance on how, or in what order, courts are to address these two inquiries. The draft Restatement (Third), in contrast, differentiates clearly the respective roles of the two analytical elements. It characterizes the resolution of a choice-of-law question as a two-step process. First, the scope of the relevant states’ internal laws must be determined, in order to ascertain which states’ laws might be used …

Transnational Legal Ordering And Regulatory Conflict: Lessons From The Regulation Of Cross-Border Derivatives, Hannah L. Buxbaum

Articles by Maurer Faculty

This paper is about the theory and practice of transnational legal ordering. It seeks to gain insight into how transnational legal orders advance by examining one particular problem: the regulation of over-the-counter derivatives. It focuses on events following the global financial crisis, which exposed the deficiencies of the existing regulatory order in identifying and containing the risks created by trading in those securities. In the aftermath of the crisis, the cross-border systemic risk created by OTC derivatives trading was characterized as a problem of global dimension that necessitated a global response. A wide array of actors and institutions, both domestic …

Undetected Conflict-Of-Laws Problems In Cross-Border Online Copyright Infringement Cases, Marketa Trimble

Scholarly Works

This article provides and analyzes data on copyright infringement cases filed in U.S. federal district courts in 2013; it focuses on infringement cases involving activity on the internet and discusses actual and potential conflict-of-laws issues that the cases raised or could have raised. The article complements the report entitled "Private International Law Issues in Online Intellectual Property Infringement Disputes with Cross-Border Elements: An Analysis of National Approaches" (the "Report"), which was published by the World Intellectual Property Organization in September 2015. In the Report its author, Professor Andrew F. Christie, discusses his empirical findings about the intersection of intellectual property …