Realism and revolution in conflict of laws: in with a bang and out with a whimper.

• Author: Fassberg, Celia Wasserstein
• Position: The Constraint of Legal Doctrine

Conflict of laws scholarship in the United States in the middle half of the twentieth century produced what is commonly referred to as a "revolution." Quite apart from its revolutionary content, this scholarship is extraordinary in three principal ways. First, it is extraordinary for its volume, its prominence and the eminence of many of those producing it. Following Joseph Story's pioneering work in the nineteenth century (1) and well into the middle of the twentieth century, some of the best and brightest legal minds in some of the leading American law schools were devoting their not inconsiderable energies to this field, publishing in the best of the American law journals and spawning a vast literature--Joseph Beale (2) and Erwin Griswold, (3) Wesley Hohfeld, (4) Ernest Lorenzen (5) and Walter Wheeler Cook, (6) Hessel Yntema, (7) David Cavers, (8) Albert Ehrenzweig (9) and Brainerd Currie. (10) Second, this scholarship is extraordinary for its fiercely intellectual and visceral nature. The literature reveals not only unusual analytical and comparative thoroughness but also unusual competitive relentlessness and interpersonal rhetorical argumentativeness. (11) The third extraordinary feature--with which this Symposium is concerned--is the striking impact this scholarship had on judicial practice in the United States and the equally striking absence of almost any impact on scholarship or judicial practice outside the United States.

Scholarly enthusiasm for conflict of laws in the United States came in two major waves. The first pitted a dark empire of rules against an enlightened world of rule-skeptics. The First Restatement of Conflict of Laws was completed in 1934 after eleven years of work under the leadership of Joseph Beale, a student and then a colleague of Langdell. It was immediately reviled as an outdated set of abstract conceptual rules, the very model of Legal Formalism, quite at odds with the prevailing view of law. (12) Working at the very same time, Ernest Lorenzen, Walter Wheeler Cook and others systematically exposed to ridicule all the assumptions and components of the universally familiar type of rule promoted by Beale, excoriating their manipulability and the unreality of their premises. The second wave of conflicts scholarship, culminating in publication of the Second Restatement in 1971, (13) was more constructive. Once the traditional formalistic rules had been discredited, attention was turned to producing alternative methods for resolving conflicts problems. These two waves of scholarship, together with the case law they generated, constitute what is now known as the American conflicts revolution.

Of the three major topics dealt with by the conflict of laws, the conflicts revolution in scholarship is traditionally talked of in the context of choice of law, (14) even though it did have an impact on jurisdiction (15) and foreign judgments. (16) All these topics raise "private" concerns of justice between the parties and "public" concerns--both of relations between the individual and the state, and of relations between states--and in choice of law, the revolution focused on the way in which these concerns were addressed.

The rules of choice of law presented in the First Restatement were formulated in the traditional mode, the mode that is still employed in most legal systems. They posited a legal category (e.g., contract, tort, property, marriage, divorce, succession), each of which was linked by a characteristic connecting factor to a given system of law. Thus, for contracts, the place of contracting identified the legal system that would govern most questions concerning the contract; (17) for torts, the place of the wrong would identify the law governing the tort; (18) for property, the place of the property would identify the law governing the property; (19) and for procedure, the identity of the forum would dictate the governing law. (20)

The theoretical basis of these rules was that of territorialism and vested rights: the idea that human behavior at a particular time in a particular place creates rights. This idea defines the purpose of conflict of law rules as enforcing rights that have vested under the only law capable of controlling the legal consequences of conduct in a given set of circumstances. (21) This essentially political purpose of distributing authority dictated the unique "jurisdiction-seeking" form of the rules (e.g., torts are governed by the law of the place of the tort). Story had already debunked the myth that choice rules are universal and bind all states as international law. (22) It was thus uncontroversial that the source of these rules was local. Nonetheless, the conflict of laws was presented as "part of the general system of the common law." (23) These common but local rules were designed to tell the forum for every type of legal situation whose law should determine whether or not a right had vested. As such, they were multilateral--in the sense that they treated all states evenhandedly and determined the scope of each state's control on the basis of its formal connection to the case, according the forum no advantage over foreign legal systems--and they identified the governing law irrespective of the substance of the competing rules. (24)

Criticism of the formalist model of choice rules was related both to rule-skepticism and to skepticism about the theories inspiring the rules. On the theoretical level, Cook attacked the idea of vested rights. (25) Relying on Holmes's view of law as a prophecy of what courts do in fact, (26) and proceeding from observation rather than deducing from general principles, (27) he demonstrated that far from applying foreign law, in a typical choice of law case, the forum applies its own law to create a local right, using a rule of decision from another system connected with the issue--usually the rule that would be used for an analogous domestic fact situation. (28) Furthermore, he demonstrated that issues of procedure, where forum law applies in any case, often modify what looks like a foreign right--or extinguish it--and that the public policy reservation can also prevent enforcement of a right that might well be enforced in another state. Observation thus yielded the insight that any right that is enforced is a local right in the sense that it verifies a prophecy of what will happen in the forum--or what forum officials will do--in the circumstances of the case. (29) This insight contributed to undermining the principle of territorialism. Since the foreign law was simply a datum used in constructing a right under local law, lacking any intrinsic normative power, each forum was free to decide whose law to apply, free of any purported obligation or any purportedly exclusive territorial control. (30)

As for the rules themselves, Cook, Lorenzen, and others criticized these for encouraging mechanical jurisprudence and assuming that concepts can be applied without reference to policies and social interests. (31) This line of scholarship exposed the manipulability of abstract categories and concepts, demonstrating that the rules did not produce foreseeable results and that the purportedly evenhanded treatment of forum and foreign law was spurious--judges tended to prefer their own law and to work towards applying it. (32) A major area of attack was the problem of classification. Abstract rules based on categories are not as easy to apply as they may look. The category of procedure provides a notorious example of situations where application of local or foreign law depends on the question whether the issue is substantive or procedural, and where courts rarely provide good reasons for one classification or the other. (33) Cook argued that concepts and rules can be understood differently in different contexts. He demonstrated persuasively that rather than dealing with the question where the line between substance and procedure is--as if they were objective, constant categories--one should ask for what purpose the line is being drawn and acknowledge that for different purposes the line may be drawn in different places. (34) Lorenzen further argued that classification should be determined by the forum on the basis of policy, expediency, and justice. (35)

Dissatisfaction was also expressed with other aspects of traditional rules. Lorenzen criticized their rigidity. (36) Hessel Yntema launched a frontal attack on the very idea that choice of law rules or principles could be presented in black-letter form. (37) David Cavers argued that jurisdiction-seeking rules that ignored the substance of the rules were themselves unjustifiable. (38)

Taken as a whole, these insights bolstered an emerging view that there were no general choice of law principles, that choice of law problems cannot appropriately be resolved by designating a controlling jurisdiction on the basis of one constant territorial factor, and that their resolution should take into account the content of the "competing" laws.

It is uncontroversial that this attack on the traditional model of choice of law rules, led in no small part by some of the leading Legal Realists, was inspired by Legal Realism. The realist rebellion against mechanical jurisprudence and Formalism, the realist idea that there is no such thing as a right, the realist exposure of the myth that decisions can be made on the basis of pure deduction independent of the facts of the case and the policies involved, and the realist insistence on making explicit these factors, are all essential elements of the scholarship dedicated to discrediting traditional choice of law thinking.

The second wave of scholarship attempted to offer alternatives to the model that had been so successfully discredited, alternatives that would avoid the mechanical blindfolded dictate of the traditional rules and require explicit rational choices between substantive solutions. Rather than rules, this scholarship is notable...