Abstract
The preceding two chapters were devoted to an articulation of the concept of interest in conflicts contexts. It is proposed now to embark upon a structured elaboration of the process of interest analysis in choice-of-law cases. The present chapter focuses attention on the first step in such a process — the ascertainment of relevant interests.
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References
An `interest’... is the product of (a) a governmental policy and (b) the concurrent existence of an appropriate relationship between the state having the policy and the transaction, the parties, or the litigation.“ Currie, Selected Essays on the Conflict of Laws 621 (1963). Id. at 162, 189, 210, 235, 571, 727. See Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L. REV. 267, 291 (1966).
See Katzenbach, Conflicts on an Unruly Horse: Reciprocal Claims and Tolerances in Interstate and Internationtal Law, 65 YALE L. J. 1087, 1157 (1956). For an analysis of statutory construction as a rational means of solving choice-of-law problems see Hancock, “In the Parish of St. Mary le Bow, in the Ward of Cheap,” Choice-of-Law Problems Resolved by Statutory Construction: The Charitable Testamentary Gift Cases, 16 STAN. L. REV. 561 (1964). Under traditional thinking, of course, there is a qualitative distinction between interpretation of domestic rules and choice of law proper. See, e.g., Baade, Foreword, Symposium on New Trends in the Conflict of Laws, 28 LAW ú CON-TEMP. PROB. 673, 674 (1963); Mann, The Primary Question of Construction and the Conflict of Laws, 79 L.Q. REV. 525 (1963). Even the Restatement (Second), Conflict of Laws (Proposed Official Draft, Part II, 1968) is still couched in conventional terminology. Thus, e.g., when discussing workmen’s compensation it notes that “... the principal problem in the area is not one of choice of law but rather what range of application to persons and things without the state will be given by a state to its own workmen’s compensation statute.” Id., Introductory Note at 154. Ehrenzweig’s stand on the interpretive nature of the choice-of-law process is rather ambiguous. To be sure, he advocates resort to a doctrine which is “... essentially concerned with the interpretation of the forum’s policy as expressed in its rules of domestic law.” EHRENZWEIG, CONFLICT OF LAWS 350 (1962). Id. at 311. But such a course is open only in those instances where courts have failed to establish “true” choice-of-law rules. Wherever rules of this kind can be elicited one must follow their directives, not because they enjoy any “independent operation” but rather by virtue of their “shorthand function,” that is, their being an embodiment of “... a rationale underlying the interpretation of the forum rule which is sufficiently common in the interpretation of similar rules to warrant a shorthand statement for what each forum rule could... say about its territorial scope.” Id. at 311 (emphasis in the original). Furthermore, at several points Ehrenzweig explicitly or impliedly differentiates between “choice of law” and “interpretation of the lex fori.” E.g., id. at 561 n. 34, 562.
See CAVERS, THE CHOICE-OF-LAW PROCESS 88 (1965).
The choice-of-law process is “... essentially the familiar one of construction and interpretation. Just as we determine by that process how a statute applies in time, and how it applies to marginal domestic situations, so we may determine how it should be applied to cases involving foreign elements in order to effectuate the legislative purpose.” CURRIE, supra note 1, at 183–84. Id. at 367, 459, 537. Curiously enough, Currie’s statutory-interpretation conception is somewhat reminiscent of the Statutists theory of medieval Italy. Indeed, it has been noted that from its very inception on the European continent “the statutory interpretation technique dominated conflicts [theory] for some five centuries, in the course of which a highly developed complex of semantic analysis was built up.” Katzenbach, supra note 2, at 1111 n. 90. Cf. Kronstein, Crisis of “Conflict of Laws,” 37 GEO. L. J. 483, 512 (1949).
See Kramer, Interests and Policy Clashes in Conflict of Laws, 13 RUTGERS L. REV. 523, 532 (1959).
At several points in his writings Currie displays a great deal of ambivalence over this matter. Thus, e.g., he realizes that once a domestic policy has been ascertained by ordinary processes of interpretation the forum has still to determine whether there is any valid basis for an assertion of interest in the application of that policy to the case at bar. As to this second stage of the analysis Currie concedes encounter with an. aspect of the process of construction that is peculiar to the conflict-of-laws situation,“ namely, that ”... another state may have a different... interest... [and] the existence of such a foreign interest should be a factor in the court’s determination of whether a conflicting... [local] interest exists.“ Supra note 1, at 368. Id. at 370, 498. See Currie, The Disinterested Third State, 28 LAW & CONTEMP. PROB. 754, 762, 787 (1963). In one of his last publications he frankly allows that ”... in the conflict of laws situation the process of... interpretation may involve an important factor never present in the domestic situation: the interest of another state... recognition of the interest of the foreign state is always a legitimate, and often an admirable, approach to solution of the choice-of-law problem.“ Currie, Ehrenzweig and the Statute of Frauds: An Inquiry into the ”Rule of Validation,“ 18 OKLA. L. REv. 243, 246 (1965).
Leflar refers to Currie’s construction and interpretation concept as a “pseudointerpretative process” — supra note 1, at 276 and a “process of pretended construction” — id. at 277.
See supra ch. 4.
On “false” conflicts see generally the following chapter.
See CURRIE, supra note 1, at 368. Cf. Leflar, supra note 1, at 277, 295.
See CAVERS, supra note 3, at 74, 89, 97.
See CURRIE, supra note 1, at 81; Baxter, Choice of Law and the Federal System, 16 STAN. L. REV. 1, 6 (1963); Cheatham, Sources of Rules for Conflict of Laws (1941), in SELECTED READINGS ON CONFLICT OF LAWS 133, 139 (compiled by the Association of American Law Schools, 1956 — hereinafter cited as AALS READINGS).
See Cheatham, supra note 12, at 139, 140; Cheatham & Reese, Choice of the Applicable Law, 52 CoLUM. L. REV. 959, 961–62 (1952); Kramer, supra note 5, at 537; Reese, Conflict of Laws and the Restatement Second, 28 LAW & CONTEMP. PROB. 679, 682 (1963); Sumner, Choice of Law Rules: Deceased or Revived? 7 U.C.L.A.L. REV. 1, 6 (1960); Traynor, Is this Conflict Really Necessary? 37 TEXAS L. REV. 657, 671, 673 (1959).
In the history of Anglo-American law the domestic case has been normal, the conflict-of-laws case marginal. Probably this is still true, despite the much-publicized mobility of modem society.“ CuRRIE, supra note 1, at 82.
See Leflar, supra note 1, at 306.
See CAVERS, supra note 3, at 192 n. 22; Cheatham, supra note 12, at 140.
See Baade, supra note 2, at 675.
See Reese, supra note 13, at 682. Cf. CURRIE, supra note 1, at 111.
The sole purpose of such wording is “... simply to declare that the legislature had no intention of exceeding what were assumed to be the limits of its power.” CuRRiE, supra note 1, at 296. For possible samples of such statutory utterances see, e.g., section 172 of the Pennsylvanian act abolishing the cause of action for alienation of affections discussed in Gordon v. Parker, 83 F. Supp. 40 (Mass. D.C. 1949) and section 3 of the Israeli Civil Wrongs Ordinance, 1944 (Official Gazette Supp. No. 1 129) which provides as follows: “The matters in this Ordinance hereinafter enumerated shall be civil wrongs, and... any person who suffers any injury or damage by reason of any civil wrong committed in Israel shall be entitled... to the remedies hereinafter specified...”
CURRIE, supra note 1, at 294.
An alternative way of securing the entertainment of the action possibly open to the forum is to apply some foreign law, e.g., the relevant statute of the place where the death occurred. Cf. id. at 296, 297.
Moreover, “... it is questionable procedure for a state, through application of its own choice-of-law approach, to render another state’s legislation extraterritorial when that state has refused to do so.” Comment, Conflict of Laws — Two Case Studies in. Governmental-Interest Analysis, 65 COLUM. L. REV. 1448, 1454 (1965).
See CAVERS, supra note 3, at 104–107.
See Griswold, Renvoi Revisited, 51 HARV. L. REV. 1165, 1206 (1938); von Mehren, The Renvoi and its Relation to Various Approaches to the Choice-of-Law Problem, XXTH CENTURY COMPARATIVE AND CONFLICTS LAW 380, 385 (Nadelmann, von Mehren & Hazard, eds. 1961 ).
In the present stage of development in conflicts theory and practice, a functional analysis probably best proceeds without assigning decisive importance to the choice-oflaw rules of the other jurisdictions concerned.“ Von Mehren, supra note 24, at 391. See CAVERS, supra note 3, at 106; von MEHREN & TRAUTMAN, THE LAW OF MULTISTATE PROBLEMS 549 (1965); Kramer, supra note 5, at 531; Comment, supra note 22, at 1454; Note, The Impact of Babcock v. Jackson on Conflict of Laws, 52 VA. L. REV. 302, 319 (1966). But see Baade, supra note 2, at 677 n. 25; Freund, Chief Justice Stone and the Conflict of Laws, 59 HARV. L. REV. 1210, 1217–19 (1946); Katzenbach, supra note 2, at 1118; Kelso, The Process of Analysing Choice of Law Problems, 1959 WASH. U.L.Q. 37, 61; Sohn, New Bases for Solution of Conflict of Laws Problems, 55 HARV. L. REV. 978 (1942); Weintraub, A Method for Solving Conflict Problems, 21 U. PITT. L. REV. 573, 577–78 (1960).
In a fully developed system of functional choice-of-law rules much vital information woud be stated in a jurisdiction’s choice-of-law rules... the renvoi... would constitute an essential ingredient in the handling of conflicts problems... a normal and necessary part of the analysis... as well as a way of accumulating and transmitting the results of thinking about, and experimentation with, choice-of-law problems.“ Von Mehren, supra note 24, at 393–94. See von MEHREN & TRAUTMAN, supra note 25, at 551–52; Comment, supra note 22, at 1454.
On the feasibility of interest-based choice-of-law standards see ch. 7. It is interesting to note that von Mehren advocates an extensive use of the renvoi technique in this transitional period in choice-of-law thinking. The author fully realizes that in this way “... conflicts... discussions are likely to become increasingly complex...” supra note 24, at 393. Nevertheless, he expects such a usage to help courts reach desirable solutions in concrete cases and justify occasional departures from traditional rules. Furthermore, “.., the court’s attention will be increasingly focused on functional considerations... [which will] in the long run make it easier for the courts to move generally to some form of functional analysis.” Ibid. See von MEHREN & TRAUTMAN, supra note 25, at 550–51. It is submitted that the “educational” value allegedly inhering in an expanded resort to renvoi considerations is fairly dubious. Besides, such a process is not without a grave methodological risk. An extensive reference to conventional choice-oflaw rules within the framework of an interest-oriented system is an attempt to blend together two inherently inconsistent processes of reasoning.
This is in sharp contrast to the conventional doctrine which concentrates only on “definite facts... [and] not on facts of whatever kind” since “the law is in no way concerned with all facts...” Kegel, The Crisis of Conflict of Laws, 112 RECUEIL DES CoURS 95, 245 (1964—II).
CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 112 (1921). The Judicial Committee of the Privy Council is praised by Graveson for its unifying influence and sophisticated performance in the British Commonwealth conflicts of laws. Philosophical Aspects of the English Conflict of Laws, 78 L.Q. REV. 337, 365 (1962).
Of course, mistakes in the ascertainment of interests are always a possibility but “... at least the courts will make intelligible mistakes in misapplying or not applying governmental policies... instead of mechanically reaching results by the use of abstract concepts...” Tate, Book Review, Currie, Selected Essays on the Conflict of Laws, 39 Tut.. L. REV. 163, 178 (1964).
See Harper, Policy Bases of the Conflict of Laws: Reflections on Reading Professor Lorenzen’s Essays, 56 YALE L. J. 1155, 1157 (1947): “Policy analysis is a science as yet in its infancy in our jurisprudence.”
Kramer, supra note 5, at 545.
Ibid. See Leflar, Constitutional Limits on Free Choice of Law, 28 LAW & CON-TEMP. PROB. 706, 725 (1963).
See CuRRIE, supra note 1, at 186, 191, 279, 525, 688–89 n. 236, 690.
See CAVERS, supra note 3, at 14; Leflar, supra note 1, at 292. The principle of equal treatment of local and foreign persons is sanctioned in England by the express terms of the judicial oath. See Graveson, supra note 29, at 363.
In the United States one could refine this observation by distinguishing between leading law-review articles and general treatises. Generally speaking, the impact of the former on judicial decision making appears to be greater than that of the latter.
EHRENZWEIG, supra note 2, at 366.
See Drion, The Lex Loci Delicti in Retreat, in FESTSCHRIFT FOR OTTO RIESE 236 (published by C. F. Müller Karlsruhe, 1964 ).
See Leflar, supra note 1, at 278, 291.
Wyzanski, A Trial Judge’s Freedom and Responsibility, 65 HARV. L. REV. 1281, 1301 (1952). Cf. Ehrenzweig, The Second Conflicts Restatement: A Last Appeal for its Withdrawal, 113 U. PA. L. REV. 1230, 1232 (1965).
Which may feel free to “... anticipate developments that are ripe and to depart from literal... applications of authoritative materials in appropriate cases.” Von MEHREN & TRAUTMAN, supra note 25, at 101.
Such as statutory language, legislative history, administrative rulings and judicial decisions.
Thus, e.g., Currie flatly admits that “... it is necessary for the [conflict-of-laws] technician to postulate state... interests. This he does by bringing to bear what little he may be able to learn about the history and purpose of the domestic law... All his conclusions as to such matters are tentative...” Supra note 1, at 592 (emphasis in the original).
Id. at 294, n. 51.
See Comment, supra note 22, at 1459. Such a process of reasoning may indeed be tantamount to “... conceal[ing] the irrationality of one’s preferences behind a drapery of `realistic’ legal thinking.” Drion, supra note 38, at 235.
Such as, e.g., the retention of the multiple publication doctrine in an era of mass communications media — Note, The Choice of Law in Multistate Defamation — a Functional Approach, 77 HARV. L. REV. 1463, 1474 (1964), or the retention of the old common-law rule of interspousal immunity — Kahn-Freund, Book Review, XXth Century Comparative and Conflicts Law, 76 HARV. L. REV. 223, 229 (1962). See Leflar, Choice of Law: Torts: Current Trends (1953), in AALS READINGS 561, 570–71 n. 59 where the author suggests that the attribution of policy reasons to the mere retention of the age-old cause of action for alienation of affections represents “... more of an inquiry into the realm of speculation than into that of sociology.”
See Rheinstein, Book Review, How to Review a Festschrift, 11 AM. J. COMP. L. 632, 663 (1962). The author adds advocational skill to the list of sources of legal rules.
See supra chapter two. But see Kramer, supra note 5, at 538, 541 where the author, perplexed with the prospect of the forum’s desperately turning back to system-pointing rules, would have the judge “... fall back upon general logic and reasoning... [assuming that] the reasons... behind the state’s policy are the most probable and logical ones.” In plain words, Kramer proposes a full-fledged indulgence in speculative reasoning.
See Drion, supra note 38, at 235. This, nonetheless, poses a general problem of statutory construction which is not unique to choice-of-law litigation. See Baxter, supra note 12, at 12. Of course, peculiar complexities are involved in the interpretation of foreign standards of law.
See CAVERS, supra note 3, at 108; Leflar, supra note 1, at 291–92.
I]f only one of these reasons happens to be publicized, that does not mean that the policy of the rule is limited to that reason.“ Drion, supra note 38, at 235.
Babcock v. Jackson, 230 N.Y.S. 2d 114, 117 (App. Div. 1962 ); CAVERS, supra note 3, at 298; EHRENZWEIG, supra note 2, at 578.
See CAVERS, THE CHOICE-OF-LAW PROCESS 152, 296 (1965).
Except for willful or wanton misconduct. A gratuitous guest, to whom a courtesy is being extended by the host-driver, should assume the risk of ordinary negligence as a matter of “social equity” — Hasbrook v. Wingate, 152 Ohio St. 50, 53, 87 N.E. 2d 87, 89 (1949). As a by-product of this, passengers would be more careful in accepting rides and drivers would become more generous in offering them. See CAVERS, supra note 53, at 298.
Id. at 296. An interesting choice-of-law case involving a guest-statute is Dym v. Gordon, 16 N.Y. 2d 120, 209 N.E. 2d 792 (1965). For a review of this case see, e.g., Comment, supra note 22, at 1455–62.
Fib Statutes imposing liability for injuries to third parties on the party unlawfully selling liquor to a customer whose intoxication causes injury. See, e.g., Schmidt v. Driscoll Hotel, 249 Minn. 376, 82 N.W. 2d 365 (1957).
See CURRIE, SELECTED ESSAYS ON THE CONFLICT OF LAWS 488–89 (1963); Weintraub, A Method for Solving Conflict Problems — Torts, 48 CORNELL L.Q. 215, 223 (1963).
See e.g., PROSSER, TORTS 367 (3d ed. 1964 ); James, Tort Liability of Occupiers of Land: Duties Owed to Trespassers, 63 YALE L. J. 144, 146, 151 (1953).
See, e.g., James, supra note 58, at 153; Comment, 31 TENN. L. REV. 485, 493–94 (1963/1964).
See, e.g., Hughes, Duties to Trespassers: A Comparative Survey and Revaluation, 68 YALE L. J. 633, 688 (1959).
See PROSSER, supra note 58, at 366; James, supra note 58, at 152.
See PROSSER, supra note 58, at 366.
See, e.g., Hughes, supra note 60, at 699.
See 2 HARPER & JAMES, TORTS 1438 (1956).
See CAVERS, supra note 53, at 108.
Kramer, Interests and Policy Clashes in Conflict of Laws, 13 RUTGERS L. REV. 523, 551 (1959) (emphasis in the original).
Ibid.
See CURRIE, supra note 57, at 371. Cf. Reese, Comment on Babcock v. Jackson, 63 CoLUM. L. REV. 1251, 1256 (1963).
See Comment, supra note 22, at 1460.
See Cavers, The Conditional Seller’s Remedies and the Choice of Law Process - Some Notes on Shanahan, 35 N.Y.U.L. REV. 1126, 1137 n. 27 (1960); Hill, Governmental Interest and the Conflict of Laws - A Reply to Professor Currie, 27 U. CHI. L. REV. 463, 478 n. 79 (1960). Cf. CURRIE, supra note 57, at 459. For a conventional discussion of the factor of time in conflicts situations see generally Morris, The Time Factor in the Conflict of Laws, 15 INT. & COMP. L.Q. 422 (1966).
CURRIE, supra note 57, at 621, 737. Cf. id. at 80 n. 12.
Id. at 626. Incidentally, this is but another manifestation of Curries inclination to equate judicial reasoning processes in both domestic and mixed instances.
Id. at 737–38.
See Hill, supra note 70, at 484 n. 100; Note, Post Transaction or Occurrence Events in Conflict of Laws, 69 CoLUM. L. REV. 843 (1969).
A variety of legal issues could of course arise within the framework of a single litigated cause. Thus, e.g., a court adjudicating an action for defamation may have to address itself to the following, among others, matters: what is defamatory; the libel-slander dichotomy; the necessity of proving special damages; liability with or without fault; the defenses of truth and fair comment; the nature and scope of other privileges; the effect of retraction; the extent of recoverable damages — both compensatory and punitive; and the multiple or single publication rule dilemma. Prosser, Interstate Publication, in AALS READINGS 585, 591.
Harper, supra note 31, at 1163. Cf. Lillegraven v. Tengs, 375 P. 2d 139 (Alaska 1962).
Baxter, Choice of Law, 42 CAN. B. REV. 46, 56 (1964).
See Neuner, Policy Considerations in the Conflict of Laws, 20 CAN. B. REV. 479, 487 (1942).
CAVERS, supra note 53, at 41; Neuhaus, Legal Certainty Versus Equity in the Conflict of Laws, 28 LAW & CONTEMP. PROB. 795, 801 (1963). See Wilde, Dépeçage in the Choice of Tort Law, 41 S. CAL. L. REV. 329 (1968). Cf. Cavers, The Changing Choice-of-Law Process and the Federal Courts, 28 LAW & CONTEMP. PROB. 732, 734 n. 7 (1963); Leflar, supra note 33, at 728–29.
Though by its nature it is, perhaps, an idea almost “... not susceptible of black-letter statement.” Cavers, A Critique of the Choice-of-Law Problem (1933), in AALS READINGS 101, 113.
See CuRRIE, supra note 57, at 110.
Quite a few writers categorically reject such a method on precisely these grounds. Thus, e.g., Drion brands it “... too cumbersome to apply for the average lawyer in the average lawsuit... as a practical legal tool it is as fit for the day to day handling of legal problems as is a scalpel for the cutting of meat.” Supra note 38, at 235. Rheinstein concludes that “little imagination is required to see that a functional method... is practically unworkable.” Supra note 47, at 663.
The French Supreme Court, for instance, has the reputation of rendering very short opinions: one-sentence decisions are common, reasoning is strictly minimal and no authorities are regularly cited. Nadelmann, Marginal Remarks on the New Trends in American Conflicts Law, 28 LAW & CONTEMP. PROB. 860, 862 (1963). But see id. at 863.
E]ven the best-equipped law library on the European continent cannot subscribe to all American law reviews... and the European law is relatively inaccessible to Americans, if only for reasons of language.“ Neuhaus, supra note 79, at 807. One can speculate that the foremost, if not exclusive, source of American law to be found in many law libraries all over the world consists of Corpus Juris Secundum and American Jurisprudence.
P]roving the content of a foreign law could be an expensive business.“ CAVERS, supra note 53, at 277 n. 26.
See CURRIE, supra note 57, at 629 n. 2. Incidentally, Cavers notes that appellate, rather than trial, courts are more qualified for interest-analysis assignments due to their superior position insofar as “... a record, briefs, argument, and time for research and reflection” are concerned. Supra note 53, at 268.
Such as carriers, manufacturers, insurers, banks and the like. Drion, supra note 38, at 236.
Id. at 237–38. On the virtues of simplicity and ease of the judicial task see, e.g., Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L. REV. 267, 288 (1966).
Ehrenzweig repeatedly refers to the gap, existing through all stages of conflict of laws development, between the “academic speculations” of “imaginative scholars” and the “living law” as administered by the courts. CONFLICT OF LAWS 315 (1962). He blames “conceptualist dogmatism” for turning “pragmatic exceptions” (to the basic predominance of the lex fori) into a “scheme of purportedly self-evident conflicts rules.” Id. at 323.
Traynor, Law and Social Change in a Democratic Society, 1956 U. ILL. L. F. 230, 234.
Harper, supra note 31, at 1171.
Nor can we ever, as Aristotle long ago observed, be more exact than the nature of the subject matter with which we are dealing admits. A specious clarity can be more dangering than an honest openended vagueness.“ FULLER, THE MORALITY OF LAW 64 (1965).
On the role of the forum once a party has initiated a foreign-law inquiry see the immediately following subsection.
The interest-based approach is indeed commended for “... narrow[ing] the range of a controlling precedent and enabl[ing] courts to differentiate past decisions where this seems appropriate.” Cavers, supra note 79, at 739.
See Hancock, Three Approaches to the Choice-of-Law Problem: The Classificatory, the Functional and the Result-Selective, XXTH CENTURY COMPARATIVE AND CONFLICTS LAW 365, 374 (Nadelmann, von Mehren & Hazard, eds. 1961); Hancock, Choice-of-Law Policies in Multiple Contact Cases, 5 U. TORONTO L. J. 133, 146 (1943).
See von MEHREN & TRAUTMAN, THE LAW OF MULTISTATE PROBLEMS 77 (1965).
See CAVERS, supra note 53, at 279.
The traditional classification of foreign law as “fact” is a logical derivative of the vested rights dogma: if in a conflicts case we are “... enforcing a `foreign cause of action,’ the foreign law `creating’ the cause is of course a fact... and there is no such cause of action without proof of... that law... ” EHRENZWEIG, supra note 89, at 360. Consequently, once the doctrinal premise is discarded the whole “fact” conception of foreign law falls with it. Nonetheless, foreign legal positions are sometimes legitimately regarded as “fact,” as material factual elements of a cause of action or defense. See supra chapter two. Foreign laws as factual data must therefore be pleaded and proved according to the procedures set forth for the establishment of relevant facts. On the presently prevailing procedural treatment of foreign law in Common Law, Civil Law and Eastern European Socialist Law countries see Sass, Foreign Law in Civil Litigation: A Comparative Survey, 16 AM. J. COMP. L. 332 (1968).
The application of such a postulate may engender harsh consequences. See, e.g., Walton v. Arabian Am. Oil Co., 233 F. 2d 541 (2d Cir. 1956 ). Apart from the question of justice, the equation of foreign law with fact for the purposes of pleading and proof has turned out to be a perplexing practice even under the traditional system. See CURRIE, supra note 57, at 14.
Neuhaus, supra note 79, at 799.
See EHRENZWEIG, supra note 89, at 362. This seems to be the current English practice. A party wishing to take advantage of foreign law must usually come forward with satisfactory proof as to its tenor. Otherwise the English forum will practically resort to domestic standards. See CURRIE, supra note 57, at 8, 8 n. 17; DICEY & MORRIS, CONFLICT OF LAWS 945 (8th ed. 1967 ).
See CURRIE, supra note 57, at 48; EHRENZWEIG, supra note 89, at 367. This is, of course, a far cry from traditional thinking in terms of “governing” laws. See, e.g., Kegel, The Crisis of Conflict of Laws, 112 RECUEIL DES COURS 95, 233 (1964 — II) where the author goes as far as to suggest that “... one could... consult French law in order to solve an insolvable question in Belgian law” and thus obviate resort to the lex fori when the “governing” foreign (Belgian) law cannot be made to appear.
As a matter of fact, even in purely domestic cases the adversaries, through representing counsel, usually assume the principal burden of establishing the relevant standards of law. Judges, to be sure, are presumed to be familiar with local law. But any practicing lawyer knows that in most cases, to exclude only the very simple and routine ones, the “law” of the case does not automatically emerge as a slot-machine type phenomenon. Hence it is one of the major functions of counsel to research, cite authorities, inform and argue before the tribunal as to what law controls the case. Courts are notoriously dependent on such an adversarial presentation of pertinent legal positions much in the same way as regards the ascertainment of the facts of the case: ascertaining or establishing the applicable domestic law is an integral part of the adversary process.“ CURRIE, supra note 57, at 33. This is even more so insofar as foreign laws are concerned.
Id. at 48. Even under a typical American Judicial Notice of Foreign Law statute the court does not assume any obligation to complete an insufficient invocation of foreign law by a litigant. A fortiori, no such obligation exists in the absence of any initial partisan inquiry into foreign legal provisions. Id. at 29. In contrast, some European systems impose upon their judges the primary duty to explore for themselves the governing foreign law and apply it accordingly. Id. at 25.
Id. at 76.
Id. at 14, 48, 76.
Id. at 13, 15.
Cf. EHRENZWEIG, supra note 89, at 365.
See Rheinstein, supra note 47, at 663.
Ehrenzweig would have the court itself appoint experts whose fees would be incurred by the losing party. Supra note 89, at 366.
See CURRIE, supra note 57, at 76.
Id. at 48, 76.
See CAVERS, supra note 53, at 273; CURRIE, supra note 57, at 39, 75.
See CAVERS, supra note 53, at 275–76.
Id. at 277.
Id. at 277–78.
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Shapira, A. (1970). The Process of Interest Analysis — Ascertainment of Relevant Interests. In: The Interest Approach to Choice of Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-7549-2_6
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