The American Choice-of-Law Revolution in the Courts: Past, Present and Future (The Hague Academy of International Law Monographs)

508 Pages·2006·6.04 MB·English

by  Symeonides

The American Choice-of-Law Revolution
THE HAGUE ACADEMY OF INTERNATIONAL LAW MONOGRAPHS
Volume 4
The titles in this series are listed at the end of this volume.
THE HAGUE ACADEMY OF INTERNATIONAL LAW
The American Choice-of-Law
Revolution:
Past, Present and Future
by
Symeon C. Symeonides
MARTINUS NIJHOFF PUBLISHERS
LEIDEN • BOSTON
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isbn90 04 15219 9
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To Haroula

Foreword
On Labor Day 1980, I wrote the last words of my first book on American conflicts
law. The book was appropriately titled “An Outsider’s View” of the American Ap-
proach to Choice of Law1. And it was. It was a typical attempt by a foreign student
to understand and make sense out of a system that was alien in both language and
logic. The attempt was hopeless, but apparently the effort was valiant enough to
earn a passing grade.
On Labor Day 2005, I write the last words of this book on the same subject,
and for once I write in the first person. In the intervening years, I have not tried
to become an “insider”, but I have continued to explore, observe, question, and
absorb. In particular, by choice or necessity, I have studied at least a myriad of ju-
dicial decisions. Like so many foreign observers, I gradually moved from extreme
skepticism to unabashed admiration before I settled somewhere in the middle.
This book is the result of what I have learned in these years.
The first version of this book comprised my 2002 lectures at the Hague
Academy of International Law and appeared as part of the Academy’s Collected
Courses2. The Curatorium of the Academy has graciously authorized republica-
tion of the lectures as a free-standing volume. This provided the opportunity for
both updating and substantial rewriting.
Among the book’s readers, I am particularly partial toward those young, foreign
or domestic students who are striving to make sense of either American conflicts
law in particular or Private International Law in general. One way to assist them is to
support as many of them as possible to study in that glorious temple of international
1. See S. Symeonides, An Outsider’s View of the American Approach to Choice of Law:
Comparative Observations on Current American and Continental Conflicts Doctrine
(S.J.D. Dissertation, Harvard Law School, 1980).
2. See S. Symeonides, “The American Choice-of-Law Revolution in the Courts: Today
and Tomorrow”, 298 Recueil des Cours 1 (2003). For a review of this version of the
book, see L. Weinberg, “Theory Wars in the Conflict of Laws”, 103 Mich. L. Rev. 1631
(2005); 6. Shreve, “Symeonides, The American Choice-of-Law Revolution”, 52 Am. J.
Comp. L. 1003 (2004).
viii Symeon C. Symeonides
justice – the Hague Academy of International Law. To this end, the royalties from
this book have been donated to the Academy for the establishment of scholarships.
Salem, Oregon, USA
S.C.S
Table of Contents
Foreword vii
Tables xvii
Charts and Maps xix
BiographicalNote xxi
PrincipalPublications xxiii
ChapterI Introduction 1
A. Book Coverage and Structure 1
B. The American Framework 2
C. The Relative Insignificance of Interstate Boundaries 6
Chapter II The Scholastic Revolution 9
A. Introduction 9
B. The Traditional American Choice-of-Law System 10
C. The First Critics: Cook and Cavers 11
D. An Open Revolution: Brainerd Currie 13
1. Antirulism 14
2. The “domestic method” 14
3. The concept of governmental interests 15
4. Currie’s assumptions about state interests 15
5. False, true, and in-between conflicts 18
6. Forum favouritism 21
7. Currie’s contribution 22
E. Comparative Impairment 24
F. Leflar and the “Better Law” Approach 25
G. Functional Analyses 28
1. Von Mehren and Trautman 28
2. Weintraub’s consequences-based approach 30
H. The First Synthesis: The Second Conflicts Restatement 31