Conflict of Laws Commons^™

Leave Bad Enough Alone, Gary J. Simson

Cornell Law Faculty Publications

No abstract provided.

Commodifying Justice For Global Free Trade: The Proposed Hague Judgments Convention, Vaughan Black

Osgoode Hall Law Journal

A notable omission from the legal apparatus for international free trade is a multilateral agreement on court jurisdiction and enforcement of foreign country judgments. However, negotiations toward such an international convention are in progress. This paper explores the background to those discussions. It examines the current draft of the proposed judgments convention with particular reference to the way in which implementation of that draft would affect Canadians engaged in the practice of international commercial litigation. It concludes with a discussion of current sticking points in the negotiations, and with commentary on the judgment enforcement scene and the implications of failure …

"Are We There Yet?": Towards A New Rule For Choice Of Law In Tort, Janet Walker

Osgoode Hall Law Journal

The Supreme Court's effort to establish certainty in this area by basing a firm rule on a clear theory has failed. The intention was laudable but the proposed theory bore little relation to the courts' adjudicative concerns; and the rule sometimes produced injustice, prompting courts to circumvent it. This article considers the brief history of choice of law in tort and recent developments in common law and civil law jurisdictions, and suggests a new theory and a new rule (based on principles of tort law rather than public international law) which are likely to increase certainty by promoting fairness.

Admiralty And Federalism In The Wake Of Yamaha Motor Corp., Usa V. Calhoun: Is Yamaha A Cry By The Judiciary For Legislative Action In State Territorial Waters?, David R. Lapp

William & Mary Law Review

No abstract provided.

Federal Jurisdiction Over State Claims To Shipwrecks: Should The Eleventh Amendment Go Down With The Ship?, Mark R. Baumgartner

William & Mary Bill of Rights Journal

The Eleventh Amendment prohibits citizens from bringing actions in law or equity against individual states in federal courts. The Amendment does not address whether states are subject to federal jurisdiction for actions in admiralty in which both a shipwreck salvor and a state claim title to a shipwreck Analyzing applicable admiralty, federal, and common law in the context of Eleventh Amendment jurisprudence, this Note examines whether the states are subject to pure admiralty actions in federal court by citizen-salvors seeking either title to or reward for salvaging a shipwreck. The original intentions of admiralty law: rewarding salvors for their efforts, …

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

Faculty Scholarship

No abstract provided.

Every Conflicts Decision Is A Promise Broken, Gene R. Shreve

Articles by Maurer Faculty

No abstract provided.

Adrift On The Sea Of Indeterminacy, Michael H. Gottesman

Georgetown Law Faculty Publications and Other Works

Today's conflicts scholars no doubt consider themselves a diverse bunch, with widely differing views about how law should be chosen in multistate disputes. But from the trenches, most of them look alike. Each waxes eloquent about the search for the perfect solution-the most intellectually and morally satisfying choice of law for each dispute-and each ends the theorizing by embracing some proposition that will prove wholly indeterminate in practice.

Conflicts Between U.S. Law And International Treaties Concerning Geographical Indications, Christine Farley

Scholarly Articles in Law Reviews & Journals

It should not be surprising that the United States is not a major proponent of the protection of geographical indications. Countries that stand to benefit the most from this protection are those that have a long history of traditional industries, such as many European countries. These historical differences may help explain the stance that the United States has taken with regard to the protection of geographical indications, as compared to its stance towards other intellectual property rights negotiated in TRIPs Agreement. But the inability of the U.S. to benefit to the same extent as European countries, because of its apparent …

Supreme Court Federalism Decisions, Leon Friedman

Touro Law Review

No abstract provided.

A Reexamination Of The Distinction Between “Loss-Allocating” And “Conduct-Regulating” Rules, Wendy Collins Perdue

Law Faculty Publications

The Louisiana choice of law code is an important effort to codify the best of modem conflicts understanding. I routinely teach it to my conflicts students even though few will practice in Louisiana. I think it quite possible that someday states that have followed more ad hoc judicial codifications may consider adopting the more systematic codification found in Louisiana.

The code's choice of law articles on torts incorporate a distinction, first developed in New York, between tort rules that are conduct-regulating and those that are loss-allocating. This rule is built around the premise that there are two fundamental purposes of …

Second Generation Of Law And Economics Of Conflict Of Laws: Baxter's Comparative Impairment And Beyond, Erin O'Hara O'Connor, William H. Allen

Scholarly Publications

In his 1963 article in the Stanford Law Review, “Choice of Law and the Federal System,” Professor William F. Baxter criticized the choice-of-law approach of the First Restatement of the Conflict of Laws. According to the Restatement, courts should apply the law of the state where the last act or event deemed necessary to create a cause of action occurred. In contrast, Baxter advocated a comparative-impairment approach, whereby judges were obligated to apply the law of the state whose public policy would suffer the greatest impairment if its law was not applied. The authors contend that although Baxter’s approach caries …

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 …

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

Faculty Scholarship

No abstract provided.

Resisting The Allure Of Better Rule Of Law, Gary J. Simson

Cornell Law Faculty Publications

No abstract provided.

The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii

Michigan Law Review

Choice of law is a mess. That much has become a truism. It is a "dismal swamp," a morass of confusion, a body of doctrine "killed by a realism intended to save it," and now "universally said to be a disaster." One way to demonstrate its tribulations would be to look at the academic dissensus and the hopelessly underdeterminative Restatement (Second) of Conflict of Laws. Another would be to examine the Supreme Court's abdication of the task of articulating constitutional constraints on state choice-of-law rules. This article will do both. At the outset, though, I want to suggest that one …

Discussant, In Response To Justice Richard J. Goldstone, 1998 Otto L. Walter Lecture: International Human Rights At Century’S End, Stephen Ellmann

Articles & Chapters

No abstract provided.

The Appellate Body, The Protection Of Sea Turtles And The Technique Of "Completing The Analysis", Sydney M. Cone Iii.

Articles & Chapters

No abstract provided.

Delegation And Democracy: A Reply To My Critics, David Schoenbrod

Cardozo Law Review

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 …

Trade And Domestic Protection Of Endangered Species: Peaceful Coexistence Or Continued Conflict? The Shrimp-Turtle Dispute And The World Trade Organization, Terrence P. Stewart, Mara M. Burr

William & Mary Environmental Law and Policy Review

No abstract provided.

Jurisdiction In Cyberspace: A Theory Of International Spaces, Darrel C. Menthe

Michigan Telecommunications & Technology Law Review

Unfortunately, when the law confronts cyberspace the usual mode of analysis is analogy, asking not "What is cyberspace?" but "What is cyberspace like?" The answers are varied: a glorified telephone, a bookstore, a bulletin board. I propose that we look at cyberspace not in these prosaic terms, but rather through the lens of international law in order to give cyberspace meaning in our jurisprudence. The thesis of this paper is that there exists in international law a type of territory which I call "international space." Currently there are three such international spaces: Antarctica, outer space, and the high seas. For …

The Sources And Scope Of Federal Procedural Common Law: Some Reflections On Erie And Gasperini, Wendy Collins Perdue

Law Faculty Publications

In this Essay I explore what traditional Erie cases would look like if we treated those cases just like classic federal common law cases. I conclude that such an approach is consistent with Erie itself and is also consistent with many of the holdings, if not the language, of traditional Erie cases. This unified approach to substantive and procedural federal common law might have some advantages. In addition to providing conceptual uniformity, this approach would offer an escape from current Erie doctrine, which is confused and unsatisfactory. Under the current doctrine, the Court appears to vacillate between the balancing test …

Choosing Law In Cyberspace: Copyright Conflicts On Global Networks, Andreas P. Reindl

Michigan Journal of International Law

This article contends that in the digital era, the current system of national, territorially limited copyright laws requires a flexible copyright choice of law regime. To promote certainty and predictability in the choosing of the copyright law applicable to acts of exploitation, choice of law rules should use the location of a user as the principal factor to determine the applicable copyright law. In appropriate circumstances, the choice of law rules should allow the application of a multitude of national copyright laws to single acts of use on digital networks. This article also argues that a broad application of flexible …

From Stockholm To Kyoto And Back To The United States: International Environmental Law's Effect On Domestic Law, Joel B. Eisen

University of Richmond Law Review

We Americans think we're so darned smart. We invented modern environmental law, developed its sophisticated "command-and-control" structure, got the public involved as never before in fighting corporate polluters, and achieved measurable successes by getting lead out of our air and bald eagles back from near extinction. We've even tried "second generation" tools such as emissions trading systems' and incentive-based regulatory flexibility approaches when we discovered our system's limitations. Not that we've got it all figured out, mind you, but we're inclined to think of ourselves as world leaders when it comes to environmental protection.

The Appellate Body And Harrowsmith Country Life, Sydney M. Cone Iii.

Articles & Chapters

No abstract provided.

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 …

Should Unclos Or Gatt/Wto Decide Trade And Environment Disputes?, Lakshman D. Guruswamy

Publications

No abstract provided.

Wagging The Dog--If The State Of Hawaii Accepts Same-Sex Marriage Will Other States Have To?: An Examination Of Conflict Of Laws And Escape Devices , Rebecaa S. Paige

American University Law Review

No abstract provided.