Title: Razing Conflicts Facades to Build Better Jurisdiction Theory: The Foundation ― There Is No Law but Forum Law
Abstract: In this Article I do not attempt to persuade legislators who are devising statutory law or courts who are fashioning common law as to the shape of the state's substantive law, or how that law should be influenced by the presence of multi-state contacts. Instead, my goal in this Article is more modest and more radical. I insist that courts should not pretend they are doing anything other than applying their own law when they deal with multi-state situations. The body of the Article proceeds in three parts. In Part II, I present and analyze variations of a simple personal injury hypothetical to demonstrate that the defendant should always be able to determine at the front end of litigation whether the court in which suit has been filed will have potentially legitimate power to apply law to his conduct. I also preliminarily explain in Part II why sovereigns should not attempt to apply others' laws under a mistaken view that such actions promote international cooperation.In Part III, I offer an analysis and synthesis of the key insights of two of vested rights' main critics, Walter Wheeler Cook and Brainerd Currie. Walter Wheeler Cook persuasively used vested rights logic against itself. His key local law insight was that even vested rights advocates realized that no state can compel extraterritorial application of its own law. Brainerd Currie built on Cook's analysis by demonstrating the emptiness of the First Restatement choice of law as a matter of sound public policy. His key correct motivating insight was insistence that law should only be -applied when the government that generated the law has legitimate substantive interest in the underlying dispute.My argument in Part III is that these foundational insights were never fully combined as complementary principles. Combined they mean that a court only has power over a defendant when it has a legitimate interest in applying its law to his conduct. Vestedness, local law, and interest analysis theorists all foundered in their common failure to indict the illogical personal realities of their time. Courts were then (and still are now) impermissibly taking of cases in which they could not legitimately apply their own law-cases in which their own government had no legitimate interest. Conflicts rules improperly reinforced this jurisdictional malaise by purporting to empower forums neutrally and objectively to choose from among competing sovereigns' laws. The rejection of territorial jurisdictional principles, however, should have cleared the way for every state to apply through its own courts its own law. I argue that no state has a right to claim in any other situations. When courts purport to take and apply or interpret another's law, confusion, frustration of legislative policy, and outright discrimination are predictable and unfortunate results.In Part IV, I preliminarily defend against potential charges that restricting adjudication only to those states that may apply their own substantive law is somehow bad policy, either in a practical or in a moral sense. I insist that the sole purpose of obtaining is to apply one's own law. In the modem jurisdictional world, there is no need for states to serve as proxies for others' interests. Such jurisdiction grabbing may in fact constitute interference rather than assistance. If a state chooses to take of litigation also involving others' interests, the state must always recognize this is not being done for the others' sake, but rather to promote some home state policy. Pretending that is required to foster cooperation or mutual respect masks the jurisdictional reality that several sovereigns often have sufficient connectedness to a controversy to apply their laws to the dispute, and that these interested sovereigns have different views of how the litigation should come out.Nor is there anything discriminatory or parochial about always applying forum law when the forum has legitimate connectedness to the controversy. In fact, since all attempts to apply non-forum law are masking myths, when the forum straightforwardly acknowledges that it is applying its own law, two related side benefits occur. First, any defects in the forum law that would otherwise be masked are starkly revealed so that the forum law can be consistently and justly applied. Second, the forum, since forced out of the pretense that it is doing another's duty or following a higher mandate, must adjudicate conscientiously rather than mechanically and accept responsibility for its decisions. Accordingly, given this reality of forum law, I reject in Part IV modem comity based theories, including applications of game theory, as continued choice of law myths which mask the truth that no forum can apply law for another. Substantive conflicts about what law should apply can never be resolved by pretending that neutral will be developed or neutral has been obtained, but will only be resolved when disputes are frankly recognized as implicating substantive policy differences, and the affected sovereigns then directly negotiate about their differences.I conclude by suggesting that recognizing the interrelation of and ability to apply forum law is the foundational starting place for construction of sensible jurisdictional theory, and concede that many more details of the theory remain to be worked out. This work is meant to emphasize and identify the foundational building blocks for the larger jurisdictional edifice that needs to be constructed on a razed choice of law site.
Publication Year: 1993
Publication Date: 1993-01-01
Language: en
Type: article
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