Professor of Law (Emeritus), Universities of Ohio State and Thessaloniki.
Conflicts scholarship in the United States has been graced, laced (and burdened!) with lots of theory, reflecting the learned, cosmopolitan and utopian bend of its disciples. This preoccupation continues, as evidenced in the vocabulary about "rethinking," "myths," etc , despite ominous traces of fatigue.1 Unfortunately, it is not uncommon for those who express dissatisfaction with the repetition of what we all know all too well (historical evolution and a summary of most of the approaches, with reference to the key cases, every time), and who start with a promise to guide us out of the labyrinth, to feel obligated to restate what they purport to avoid with the result of more bulk and less float. Indeed, it is not too much of an exaggeration to label this continuing inundation of theory a "deluge,"2 which makes it imperative for us not to add more water, but instead try to salvage something useful in the Ark to guide us for what is coming "aprs"!
I hope that this explanation lends support to my proposing here to be too succinct and practical, and thus address only certain central "facts" and "faults" which have dominated, and bedeviled, the conflicts scene. I consider such an approach suitable to a festschrift honoring Professor Symeonides, a uniquely distinguished conflicts expert who not only is a major scholar but has been active in the "real" conflicts world of legislative solutions and who also presents us every year with a fascinating and learned report and commentary on what is actually Page 1162 happening down there in the courts. Thus, I will concentrate on some simple points which should appear obvious but are often forgotten in the hustle-hence the title "conflicts theory for dummies"! I beg forgiveness from those who may find my style too imperious and self-righteous, and I want to assure them that it is not due to an attitude but to a concern, perhaps excessive, over hedging and inconclusiveness.
My first point is methodological and can be stated quite plainly. Conflicts law cannot and should not escape the simple requirement that applies to every law, to wit, that it have intelligible, readable, meaningful content and that its body of provisions (rules, principles, approaches, purposes and what not) lead to reasonably and consistently predictable results in most contexts. I may be revealing here my Napoleonic syndrome, but telling the courts in each conflicts case to make a choice and fashion the applicable law "ad hoc" and "anew" (i e without legislative or precedential direction) on the basis of what is right (just, proper, good, suitable, interested, etc ), as is often done under the prevailing conflicts theories, appears to me not only inconsistent with the basic principles of the separation of powers, not only burdensome and potentially arbitrary beyond reason, not only disorienting to the transacting persons, but essentially empty of meaning. I am not claiming that this, let us call it "requirement of predictability," necessarily leads to just or totally certain results or that it places the particular choice rule beyond challenge. But unpredictable law is not law to begin with I am afraid that the prevailing conflicts theories in the United States (the many variations of interest analysis, the most- significant-relationship test by itself, and the "better" or "modern" law approaches) pose a serious problem of indeterminacy. Except as they serve as incantations to cover up some other clandestine basis of choice (e g , pro- forum, pro-plaintiff, pro-recovery-in-tort, pro-resident, which we will address in those contexts), they leave us stranded in ambiguity. As teachers, we find it difficult to teach a course where there are only questions and where every position is as justified-or as wrong-as any other, where the students can defend with equal poise the choice of any law3 and where the judges (who themselves are desperately seeking concrete guidance) are prompted to choose instead whatever they want, to do the "right thing" and hope for the best. Equally problematic is the reference to all possible connections and all imaginable bases of choice, leaving it to the decision maker to figure it all out in the case at hand It is one thing to challenge, debate, and evaluate Page 1163 particular rules, methods, approaches, outcomes, etc and quite another to set sail rudderless on the sea of relativity!4
In this context, it seems that the "lex loci delicti" rule of the First Restatement of Conflicts was predictable enough, in the sense that it provided ex ante a choice (not necessarily always a good one) for most actual situations .
It is quite ironic that the end result of the challenge to the "escape clauses" of the traditional conflicts system has been not their abolition but their replacement by, e.g., the "most significant relationship" black hole, defined under the free-for-all and conflicting "modern" criteria of Section 6 of the Restatement Second of Conflicts which go around in circles and place any concrete conflicts choice in jeopardy.7
My second point is that, in its search for the millennium, conflicts theory has been dreaming (unsuccessfully) to escape again from another major inherent limiting factor, that the spatial application of law is determined basically only through territorial and personal connections. 8 On this foundational issue, not much progress has been made since the time of the statutists The name of the game is location, location, location: location of events, things, persons Indeed, most conflicts approaches, old and new, in the end and however willy-nilly, require some "contact(s)" between the parties and events of the dispute and the state whose law is to be applied. 9Even the result-oriented scholars, e g , F Juenger (fashion a "modern" substantive rule) or R Leflar (prefer the "best" substantive rule), require some prior contact with the state of the applicable law. We should also remember that even a pure "lex fori" approach is grounded on location, since the forum itself is predetermined by jurisdictional "contacts ". Of course, the weight given to the various territorial and personal contacts may differ and the methods of evaluating and using them may reflect diverse criteria, but this is another story which we will address later. However, accusing the First Restatement of Conflicts of "wooden territorialism" (would "personalism" be any less wooden?) both overstates the challenge and disorients the debate.
At this point, I cannot resist the temptation of quoting Judge Posner's language from a recent builder's tort liability case, Spinozzi v. ITT Sheraton Corp.10 The plaintiff's argument for Illinois law, because of defendant's solicitation of plaintiff there together with plaintiff's Illinois domicile,11 proved too much for Judge Posner. He saw it as tantamount to saying that "each guest be permitted to carry with him the tort law of his state or country, provided that he is staying in a hotel that had advertised there."12 The plaintiff could not have thought that he was:
carrying his domiciliary law with him, like a turtle's house, to every foreign country he visited [nor could he, while] eating dinner with a Mexican in Acapulco, feel himself cocooned in Illinois law, like citizens of imperial states in the era of colonialism who were granted extraterritorial privileges in weak or dependent states. Law is largely territorial, and people have at least a vague intuition of this. They may feel safer in foreign hotels owned by American chains, but they do not feel that they are on American soil and governed by American law.13
Acceptance of the plaintiff's argument would subject a hotel operator like Sheraton "to a hundred different bodies of tort law,"14 each imposing potentially inconsistent duties of care. "A resort might have a system of firewalls that...