Conflict of Laws Structure and Vision: Updating a Venerable Discipline
69 Pages Posted: 7 Jun 2014 Last revised: 6 Aug 2014
Date Written: August 5, 2014
Conflict of Laws has guided nations, individual lawmakers, lawyers, and scholars for centuries. The discipline’s rigorous analytical doctrines assist in resolving power clashes among governments and facilitate deep reflection on modes of legal regulation, governmental structure, and the nature of law itself. While traditional Conflicts thinking may have at one time satisfied these tasks, it now fails. As a result, many perceive the field as arcane and possibly even irrelevant. Conflict of Laws is none of these things. Conflict of Laws doctrines control some of the most compelling issues of our time: same-sex marriage, internet regulation, and mass tort litigation, to name just a few. Equally importantly, Conflict of Laws presents a vehicle for studying issues related to federalism in the United States, globalism, world governance, and the changing nature of law practice. After all, if various jurisdictions bring clashing regulations to a legal problem, this signals that the problem is not only difficult, but important. Yet existing texts and scholarship do not sufficiently highlight the discipline’s significance and sometimes ignore how its influence controls contemporary issues.
In short, the discipline needs reinvigorating, and this article undertakes that task. The article shows how Conflict of Laws brings out core concepts pertaining to the nature of law, federalism, and globalism. Deployed in this way, the discipline is more likely to guide resolution of domestic and international power struggles and to gain broad-based appeal. The article grapples in detail with the following topics: intuition as legal analysis, formalism, functionalism, the rules/standards debate, framing effects in legal argumentation, the propensity of Conflict of Laws to promote analytical complexity, Lex Fori as a Conflict of Laws approach, race to the bottom effects of Conflict of Laws doctrine, the cult of “judicial power” in contemporary American judicial systems, forum shopping, the distinction between the disciplines of Conflict of Laws and International Law, and conceptions of sovereignty.
Keywords: Conflict of Laws, choice of law, judgment recognition, judgment enforcement, federalism, globalism, sovereignty, race to the bottom, lex fori, same-sex marriage, framing, internet regulation, mass tort litigation, rules and standards, formalism, functionalism, framing, forum shopping, Int. Law
JEL Classification: K13, K19, K40, K41
Suggested Citation: Suggested Citation