Every Conflicts Decision is a Promise Broken

Author:Gene R. Shreve

Richard S. Melvin Professor of Law, Indiana University-Bloomington.

How appropriate it is for the Louisiana Law Review to use this issue to recognize Symeon Symeonides for his distinguished contributions at the Paul M Herbert Law Center. His record of scholarship, of leadership and of service in the conflicts community is quite remarkable. No one at the close of the last century had contributed more. And it is wonderful to know that we may expect those contributions to continue in the new millennium.

The papers in this symposium demonstrate the many ways in which Professor Symeonides has influenced the work of others. My own debt to him is great. I have found his periodic surveys of conflicts developments in American courts indispensable. 1 His public service and scholarship2 on the codification of American conflicts law are unparalleled His curiosity seems boundless, and I have profited greatly from his lucid and probing discussion on many topics. 3 Professor Symeonides has also been a generous colleague. He kindly permitted me to present excerpts from several of his works in my choice- of-law anthology,4 and he provided a principal paper5 for a symposium I organized on possibilities for a third restatement of conflicts. 6 The chance to offer this unabashed tribute is reason enough to write for the symposium. And I will return to the splendid work and example of Professor Symeonides after ruminating awhile about conflicts jurisprudence I mean by "conflicts jurisprudence" to describe something more than the common law cases that make up the gist of our subject. 7My interest is in the larger, epistemological side of conflicts law: the exertions necessary to reach "justified true belief"8 about what conflicts law is or should be, and the consequences to our legal culture from the strain and difficulty of those exertions.

Soon after I began teaching and researching in conflict of laws twenty-five years ago, I noticed widespread negative attitudes about the subject held by lawyers, judges, law students and academics outside the field. These trouble me still. Conflicts law continues to be unpopular and difficult to understand. Conflicts theory continues to be in disarray. These sad conditions are easy to document9 and barely open to dispute.10 They trouble me in part because I like the subject very much. Conflict of laws is to me fascinating, important, and a delight to teach.11 The larger point however is not that others ought to feel toward conflicts as I do, rather it is that a consensus that it is possible to achieve justice through conflicts law (current or revised) is necessary for our society.

Why is conflicts law so difficult? Even members of the legal academy who spend much of their careers trying to obtain and transmit a knowledge of the subject continue to find conflicts perplexing. Professor Arthur von Mehren observed:

Those who work in the field of choice of law are, at times, discouraged by the apparently intractable nature of the problems with which they must grapple. Intricate and subtle analyses are undertaken; ambiguities and uncertainties are painfully resolved. Ultimately, a result is reached, yet the solution is too frequently neither entirely satisfying nor fully convincing.12

Why is this so? For von Mehren, the answer lay in the multistate character of conflicts problems. "[E]ven where wholly domestic cases present a comparable order of difficulty, the solutions given in the multistate cases are more likely to trouble one's sense of justice."13 He concluded that "one who expects to achieve results in multistate cases that are as satisfying in terms of standards of justice and of party acceptability as those reached in purely domestic cases is doomed to disappointment."14

Professor von Mehren's article is the best source to date on conflicts justice, and it bears careful reading. His focus on the multistate problem as a clash of two political systems15 helps to answer the question why conflicts law is so perplexing. I will now attempt to add to that answer in a different way, by explaining how conflicts questions by their nature pose a crisis in legal reasoning. My suggestion will be that, as soon as it becomes plausible in the multistate setting for an American judge to select either of two conflicting rules of law (and I will accept von Mehren's political analysis as a means of demonstrating that plausibility), our legal process goes a little haywire.

Plato said in The Republic that a thing cannot be both what it is and what it is not.16 This is one of the best-known expressions of the rule of logical contradiction,17 a concept rooted in Western philosophy18 and essential to legal reasoning.19 In New York at any given time, the law cannot mean for a particular case that the defendant committed a tort and also that the defendant did not commit a tort. The law in Indiana for a given case cannot be that the defendant is in breach of a contract but at the same time not in breach of that contract. Clear as two conflicting rules may be in and of themselves, for both to stand as the law of the same place renders that law incoherent.

However difficult it may be to determine the content of law in a purely domestic case, it will be only one thing-the law of that place. The law will not be what it is and also what it is not. The promise of legal reasoning is that the judge will be able...

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