Continental Parlor 8 Hilton San Francisco and Towers Ballroom Level
Section on Conflict of Laws Friedrich K. Juenger, University of California at Davis, Chair
The Role of Comparative Law in the Conflict of Laws
Moderator:
Friedrich K. Juenger, University of California at Davis
Speakers:
Graeme B. Dinwoodie, Chicago-Kent College of Law Benedicte Fauvarque-Cosson, Professor of Law, Paris V Rene Descartes University, Paris, France [View Program Material] Mathias W. Reimann, The University of Michigan Michael Traynor, President, American Law Institute, San Francisco, California
The Conflict of Laws Section's previous symposium was devoted to a retrospective: taking stock of and reflecting on the past century's developments. The most prominent of these developments, the so-called "conflicts revolution," was primarily driven by certain quirks in the American law of torts, notably the (now extinct) guest acts that used to grace the statute books of more than twenty states. In reaction to the First Restatement's lex loci delicti rule, which imported such substandard law in an indiscriminate fashion, conflicts scholars developed a number of approaches that were designed to make the field of choice of law more sensitive to substantive policies. These approaches have since been adopted by a majority of American courts.
The scholars' preoccupation with domestic choice-of-law issues is understandable considering that most of the cases that are litigated in this country deal with interstate conflicts. However, methodologies developed for home consumption against a backdrop of an essentially homogeneous American common law may not adequately resolve international conflicts problems, whose importance is steadily growing. Although the bulk of conflicts cases continues to be interstate in nature, the phenomenon of "globalization" assures that courts and counsel are confronted with an ever-increasing number of international transactions. At the same time, the United States is actively engaged in negotiating conflicts conventions with foreign nations, which requires a sufficient understanding of their approaches to conflicts problems.
To respond to the exigencies of our times, conflict of laws teachers have to take into account these developments and bear in mind the fact that domestic problems – such as those posed by the Internet – also have international ramifications. One of the consequences of the conflict revolution's focus on interstate issues has been to divert attention from the transnational dimensions of choice of law, jurisdiction and judgments recognition. American conflict scholarship, which used to be characterized by a strong affinity for comparative law, is therefore in danger of losing tough with foreign developments. This program is designed to draw attention to the need for comparative approaches to a subject that, by its very nature, has an international purport.