Conflict of Laws Structure and Vision: Updating a Venerable Discipline

• Publication year: 2015

Conflict of Laws Structure and Vision: Updating a Venerable Discipline

Laura E. Little

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CONFLICT OF LAWS STRUCTURE AND VISION: UPDATING A VENERABLE DISCIPLINE

LAURA E. LITTLE^*

INTRODUCTION

Conflict of Laws presents opportunities for meaningful reflection on legal regulation and governmental structure. But that's just the beginning. In the course of resolving conflicts issues, legal thinkers can develop a deep understanding of the nature of law itself. While traditional conflicts thinking and pedagogy may have at one time fulfilled this promise, it now fails. As a result, many perceive the field as arcane, dry, and possibly even irrelevant.¹ Conflict of Laws is none of these things. To begin with, Conflict of Laws doctrines control some of the most compelling issues of our time: same-sex marriage,² internet regulation,³ and mass tort litigation,⁴ to name just a few. Equally important, Conflict of Laws presents a vehicle for studying issues related to globalism, world governance, and the changing nature of law practice.⁵ After all, if a legal problem is answered with clashing regulations from different jurisdictions, this

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is a sign that the problem is important and difficult. The existing texts in the field, including scholarly articles, casebooks, treatises, and other monographs, tend to fall short in using Conflict of Laws to highlight its importance and explore its contemporary contexts. The discipline needs reinvigorating.

This is a message important to all legal thinkers who might encounter Conflict of Laws: legislators, judges, legal scholars, law professors, practitioners, and law students. This essay highlights some remarkable insights that Conflict of Laws issues provide to this wide audience. The essay provides raw material for scholars and practicing lawyers, who stand to benefit from these issues and have the ability to raise the consciousness of others about their contemporary importance. Riding on the hope of the next generation, this essay also focuses on pedagogy with ideas on how to highlight the issues in courses on Conflict of Laws, International Civil Litigation, and other procedural courses.⁶

Why does the study of Conflict of Laws hold such promise in penetrating the essence of legal regulation and governmental structure? Choice of law issues present profound clashes among the rules that regulate human life. To choose which of those rules should actually exert control, legal thinkers must identify first-order principles that inform the rules' content and empower rules to regulate human affairs. Whether society likes it or not, humans possess egos and relish power, even if it is only the power to control self-destiny. Inescapable power struggles and the challenges of compromise are put in sharp focus when framed in legal rules. One might imagine that a legal shroud might sober the power struggles, reducing the emotional distraction and confusion. Whether or not this calming effect occurs when lawyers and judges resolve Conflict of Laws questions in legal practice and litigation, the emotional and

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psychological underbelly of Conflicts provides an important opportunity for understanding power struggles. More importantly, for the purposes here, emotional and psychological angles bring rules alive and thus provide a key teaching vehicle. By highlighting the "human side" of Conflicts, the Conflict of Laws scholar, teacher, and practitioner can provide her audience with an important and interesting angle.

Simply presenting Conflict of Laws' jurisprudential questions in abstract form can overlook this human side of the discipline and fail to engage the audience. Plain words about the emotional, contemporary, and practical implications of Conflicts doctrine can help hook the listener. Yet the profound, abstract questions that comprise Conflicts of Laws are what the discipline make so important. The challenge then is to navigate a balance between the two angles, seeking to capture both the practical and theoretical richness in the subject matter.

For teaching, most existing casebooks squander the promise of Conflicts as a tool for broad understanding.⁷ This loss derives from a number of different mistakes. Many texts rely heavily on older cases that fail to captivate the modern imagination. Others miss thematic threads binding the discipline, either because the texts embrace an encyclopedic presentation or trace the development of Conflicts through long lines of cases. Finally, texts lose students' interest and understanding when the students perceive the textual discussion as entangled in a maze of abstract analysis or as pursuing an elusive, "hide the ball" approach with the material. The plodding, evolutionary approach of many presentations of Conflict of Laws, such as when many texts trace a long line of cases, can exacerbate this perception. The result can be low enrollments and low student interest. While distressing for the purposes of legal knowledge and global understanding, this is also problematic for another basic reason: the subject is on the bar examination in twenty-six states and

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the District of Columbia.⁸ Most importantly, uninspired pedagogy makes creative legal advocacy and cutting-edge scholarship less likely. If future lawyers and academics do not experience the promise of Conflict of Laws analysis during their formative stages, they are less likely to push the discipline in new directions that accommodate changes in the legal, social, and technological landscapes.

Conflict of Laws pedagogy and scholarship benefit from emphasizing current problems, highlighting themes that integrate the subject matter (and tether it to current challenges), identifying specific topics that expose the subject's relevance, and exploring lawyering skills easily integrated with Conflicts. The subject naturally presents opportunities to present cutting-edge issues of

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family law, internet regulation, international regulation, and the like.⁹ In addition, litigation strategy issues (such as international forum shopping)¹⁰ as well as transaction practice issues (such as private ordering of affairs and contractual choice of law clauses)¹¹ are important components of Conflicts thinking. Limitless ways exist for situating these issues and practical concerns within the deeper, jurisprudential issues of power that make Conflict of Laws so important. I present here a handful of particularly compelling examples, organized around the following three themes:

I. The Nature of Law: What forms does legal analysis take? How does Conflicts disclose a societal preference for judicial, rather than legislative power?

II. Federalism: What topics best illustrate the challenges and advantages of federalism? What does Conflict of Laws reveal about modes of regulation among the constituent parts of a federalist system? What lessons, opportunities, and concerns arise from federalism's creation of forum choice for litigants?

III. Globalism: How should courts resolve transnational conflict among laws? What does Conflicts tell us about the diversity in world litigation systems? What is the relationship between International Law and Conflict of Laws?

I take up each of these themes in turn.

I. USING CONFLICT OF LAWS TO REVEAL THE NATURE OF THE LAW

The first order of business in invigorating Conflict of Laws is to harness and expand on the great scholarly literature identifying both regulatory analysis within Conflicts doctrine as well as the regulatory effects of various Conflict of Laws approaches. With the help of Conflicts material—and just a little nudging—one can discover what

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law seeks to accomplish and can observe some of the intended and unintended regulatory effects of law. Focusing on the form of conflicting regulations as well as Conflict of Laws analysis itself, Conflicts thinkers can also gain powerful insights about the forms that legal regulation and analysis can take—including both salutary forms and regrettable ones. This second angle includes a cornucopia of different analytical forms illustrated in Conflicts problems—as well as the unique insights into modes of legal reasoning and rhetoric in the subject's case law. The forms of analysis reflected in Conflicts provides an opportunity to ponder the propriety of such matters as (i) an intuitive approach to law, (ii) the effectiveness of formalism and the related debate about rules and standards, (iii) the power of framing—and its embrace in the process of characterization formally integrated in the Restatements (First) and (Second), and (iv) the discipline's propensity for complexity. A final significant topic about the nature of law arising from Conflicts concerns what one might describe as a preference for judicial, rather than legislative or executive power. This is reflected in the sanctity of judgments and the exalted role of judges in the Anglo-American tradition.

A. Regulatory Goals and Effects

The choice of laws component of the Conflict of Laws discipline invites legal thinkers to dissect legal principles like no other subject. Regardless of the particular choice of law approach discussed, the analysis required uncovers many insights about the regulatory goals and effects of law. I do not suggest this is a new observation. But the process of developing a basic understanding of the complex and usually abstract, principles of choice of law doctrine can easily distract from the range of regulatory goals and effects depicted in Conflicts cases. For newcomers to the discipline, the process of learning the complex and abstract choice of law principles can be so challenging that they overlook larger lessons from the material. It is worth a second look to discover what choice of law analysis can uncover.

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1. Regulatory Goals

Regulatory goals drive much choice of law analysis. Contemplating Conflict of Laws itself thus presents analysts with an opportunity to self-consciously identify and...