Conflict of Laws - Lushing - Spring 2003

Conflict of Laws - Lushing - Spring 2003 - 1 PART I CHOICE...

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Unformatted text preview: 1 PART I. CHOICE OF LAW: THE BASIC MODEL Judges can raise COL issues on their own— have to apply the correct law. F = forum; S = situs CH 1. THE TRADITIONAL APPROACH TO CHOICE OF LAW § 1. TRADITIONAL THEORY: A SURVEY OF JURISDICTION—SELECTING THE RULES Restatement 2 COL (R2COL) drafted in 1971. o Can use the Rest—it has comments and annotations. In US, problems occur with 50 States and Puerto Rico, Guam, Marshall Islands o Story re habeas corpus where PR judge didn’t have life tenor o Puerto Rico is a commonwealth “associated” with the US o Congress gave PR judges life tenor. Diff than the Const giving life tenor b/c congress can repeal it. History of Choice of Law. o Started in the 12 th cent (1100’s). Ships going from country to country / int’l trade. French and Italian “Statutists” developed principles for choosing among competing laws, based on statutory interpretation. o In 16 th Cent, 400 yrs later, Dutch disagree with the statutists, and developed alternative model based on principle of territoriality. o Huber’s 3 Maxims: (p3) 1. the laws of each state only have force within the state 2. all persons within the limits of a government are deemed to be subjects thereof 3. sovereigns will act by way of comity so rights acquired within the limits of a government retain their force everywhere so far as they do not cause prejudice to the power or rights of such government or of its subjects. o England’s approach during this period: the court that hears the case applies its own law, no matter where events occurred. o Encourages forum shopping o Legal actions taken in 1 state are actionable in another o Then in mid-18 th cent, English common law judges finally began applying laws of other nations. Today, the only cases that have to be heard locally involve title to real property A judgment is more powerful than a law. Disobey an injunction = no defenses of unconstitutionality. o Doesn’t mean one country will always enforce judgments of another nation. o However, b/c of full faith and credit, all States must enforce judgments of other States. When a case is heard in one country, but events occurred in another, whose law applies? 2 Policy. Theoretical questions should be based on Policy—the people created government for a reason . One solution = jurisdictional = apply the law of the forum. Seems unfair. Encourages forum shopping. Lord Mansfield (1775) (p2) said that every case tried in England had to be tried by the law of England, but the law of England says that in a variety of circumstances the laws of the country where the c/a arose shall govern. o So even if chose another nations COL law, would be doing so under British law....
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This note was uploaded on 02/14/2008 for the course LAW 7342B taught by Professor Lushing during the Spring '03 term at Yeshiva.

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Conflict of Laws - Lushing - Spring 2003 - 1 PART I CHOICE...

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