Book Review-Conflict of Laws: American, Comparative, International: Cases and Materials

• Author: Hilary K. Josephs
• Position: Professor of Law, Syracuse University
• Pages: 1123-1132

Page 1123

Professor of Law, Syracuse University.

I Introduction

This essay will focus on the contribution to the field made by a recent casebook co-authored by Professor Symeonides ("SCS") with Wendy Collins Perdue ("WCP") and Arthur T. von Mehren ("ATV"): Conflict of Laws: American, Comparative, International: Cases and Materials.¹ My comments will extend to the Teacher's Manual which accompanies the Casebook. To summarize, the Casebook is a model teaching tool which at the same time has character. It projects the personalities of its authors, and their passion and dedication to the subject, without being didactic, tendentious, or polemical.

Although I have taught conflict of laws materials regularly in courses such as international business transactions, international trade law and public international law, I have taught the "traditional" course just once. So, I make no claim to being a specialist on the subject of conflict of laws as it is "traditionally" conceived. Consequently, this review might be most helpful to other neophytes who are asked to cover the traditional course when the resident specialist retires or goes on leave.

In complete honesty, there were three main reasons why I adopted the Casebook in my own course. First, I knew two of the co-authors personally from meetings of the American Society of Comparative Law. Second, the very title of the book expressed an avowedly catholic attitude about the subject. No conflict of laws textbook can reasonably disregard comparative and international perspectives. The Page 1124 United States is not only a highly mobile society (which, in the twentieth century, compelled a change in judicial attitudes towards jurisdiction and choice of law) but also an assimilationist culture, international marketplace and major exporter of foreign direct investment. Third, the Casebook was fresh off the press and required no supplementation.

While preparing this review I took a closer look at three other casebooks and their teacher's manuals: Brilmayer, Conflict of Laws: Cases and Materials;²Cramton, Currie, Kay & Kramer, Conflict of Laws: Cases-Comments-Questions;³and Rosenberg, Hay & Weintraub, Conflict of Laws: Cases and Materials.⁴ This is not an exhaustive list, but those textbooks I was able to obtain readily as desk copies. All were perfectly adequate but I was content in retrospect with my original choice.

II Hardcopy Casebooks In The Electronic Age

To place this review in a more general context, one should explore the function of a hardcopy casebook in the electronic era, when primary sources and much secondary material are readily available from legal databases or the Internet. Professors can put together their own casebooks through photocopy centers or avail themselves of "customized casebook" formats supplied by the database services.

Yet, the "electronic revolution" is not yet complete. There is nothing, for example, in the CALI Library on conflict of laws. The legal publishers apparently have abandoned, at least for the present, their brief experiment with casebooks on CD-ROM.

If the supply is not available, neither is the demand forthcoming. Despite a high degree of computer literacy among law students, in my classes there are still relatively few students who carry laptop computers and who might benefit significantly from a casebook published on CD-ROM or the Internet.

From casual discussion with other law professors, who have taught in totally "wired" environments, I conclude that the electronic classroom is not without its problems and distractions-the clacking of keyboards, the class's fixed focus on computer screens to the exclusion of other visual or aural stimuli, and the opportunity for students' attention to drift away undetected. With the exception of one course in which I posted an electronic syllabus with links to cases and other sources, I still use hardcopy casebooks, documentary supplements and photocopied materials.

III Conflict Of Laws In The New Millenium

Another general issue is the place of the course, conflict of laws, in the law school curriculum. Typically it is not a required upper-level course like Page 1125 professional responsibility or constitutional law. However, students might be strongly motivated to take the course because the subject is still tested on the bar examination in about half the jurisdictions, including New York, Connecticut, Pennsylvania, Virginia, and the District of Columbia. All are jurisdictions with "greater urban areas" where large numbers of lawyers are concentrated.

At the same time, though the U.S. population is so concentrated in particular states or urban areas, law school populations are increasingly diverse and their postgraduation destinations unpredictable. Las Vegas is now the fastest growing urban area of the country.⁵ Other thinly populated states like Utah and Idaho boast above-average rates of economic development.⁶ The community property states to which retirees have flocked are suddenly forced to confront novel conflict of laws issues.⁷ Therefore, a casebook does not do justice to the subject if it restricts itself to the law of a few jurisdictions. The Casebook,⁸ and Professor Symeonides's annual surveys in the American Journal of Comparative Law, appreciate this reality and supply an overview of "conflicts geography."

Those who teach conflict of laws do not seem to be afflicted with the same professional self-doubt that one finds in the case of specialists on comparative and international law.⁹ To be sure, the picture is not entirely rosy.¹⁰ Perhaps the field of conflict of laws has fared better in the American law school curriculum because emigr intellectuals from Europe did not dominate it as much as they did comparative law, and there was always an active cadre of home-grown scholars.¹¹

Still, from my experience responding to inquiries of alumni who did not take the course and from reading postings on listservs, I think that too many practicing attorneys are insufficiently sensitive to conflict of laws issues. I recently attended a CLE program where a speaker jocularly declined to comment on a conflict of laws issue because, although he had taken the course in law school, he had not done well in it. Conflict of laws issues strike at the very heart of an attorney's livelihood, as demonstrated by a recent California Supreme Court decision which found that a New York law firm had engaged in the unauthorized practice of law when it handled a dispute between two California companies.¹²

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IV Core Subject Matter And New Developments

With varying degrees of emphasis, all of the textbooks cover the following subject matter: (1) the traditional (or territorial) approach to conflicts and its various exceptions; (2) the modern approach (most significant relationship, interest analysis, better law) and its exceptions; (3) statutory approaches to conflicts issues; (4) special problems in choice of law (e.g., divorce, child custody, complex litigation and products liability); (5) proof of foreign law; (6) constitutional limitations on assertions of jurisdiction and choice of law; (7) conflicts between state and federal law; (8) recognition of judgments, domestic and foreign; and (9) conflicts in an international setting (e.g., extraterritorial jurisdiction, act of state, international commercial arbitration).

Students have already been introduced to the highly abstract subjects of constitutional limitations on assertions of jurisdiction and conflict between state and federal law in either or both constitutional law and civil procedure. Subjects such as extraterritorial jurisdiction and acts of state are typically covered in either or both public international law and international business transactions. However, it is wise for casebook authors to include otherwise repetitive material. One cannot expect students to understand difficult subject matter after a single exposure. Electives are the rule after the first year of law school. Furthermore, even if students wanted to follow a logical and coherent learning sequence, course schedules are too unpredictable for such meticulous planning.

In terms of length, the textbooks ranged from about 800 to 1100 pages (including prefatory material, tables, and index). From my experience with casebooks in other courses, a length of about 1000 pages should be sufficient for a three-credit course; otherwise, the book becomes, simply, physically cumbersome. The Casebook has an extensive bibliography of primary and secondary sources, a summary of contents, a table of contents, a table of cases, a table of Restatements, and an index-in short, all of the finding aids one might need to locate material within the book or explore related subject matter not included. Quotations of sections of the Restatement within the...