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The Ever Changing Rules of Choice of Law

Published online by Cambridge University Press:  21 May 2009

Willis L. M. Reese
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Extract

The law is an area of conflicting values. Considerations of certainty, of predictability and of ease of application dictate that rules of law should be simple and precise and that they should not be subject to frequent change. These basic values are in direct conflict with others of real importance. There is need for the law to make fine distinctions in order to deal with the multitude of problems that are presented by mankind. There is need for the law to be flexible so as to permit the attainment of the just result in an atypical case and to permit adequate handling of new situations when they arise. There is also need for the law to change. Rules of law, no matter how carefully phrased, will almost inevitably include within their literal scope situations that were not in the minds of the originating court or legislature. When these situations do arise, it may be found that they are not adequately handled by the rules as presently phrased. Likewise, the relative weight given by society to conflicting interests can be expected to vary from time to time. Pressure for change will be resisted not only by those whose interests would be adversely affected but also by those who cherish the values of certainty, predictability and ease of administration. The fiercest conflict in the law may be between the forces of rest and of motion.

Type
Research Article
Information
Netherlands International Law Review , Volume 9 , Issue 4: Special Issue: De Conflictu Legum, Essays Presented to RD Kollewijn and J Offerhaus , October 1962 , pp. 389 - 397
Copyright
Copyright © T.M.C. Asser Press 1962

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References

1. 3 Beale, , Conflict of Laws 1967–1969 (1935)Google Scholar; Slater v. Mexican National R. Co., 194 U.S. 12O, 126 (1930).Google Scholar

2. Restatement, Conflict of Laws § 332 (1934).Google Scholar

3. Restatement, Conflict of Laws § 326 (1934).Google Scholar

4. Restatement, Conflict of Laws § 377 (1934).Google Scholar

5. Restatement, Conflict of Laws, Second § 332a (Tentative Draft No. 6, 1960).Google Scholar

6. Restatement, Conflict of Laws, Second § 332b (Tentative Draft No. 6, 1960)Google Scholar; Auten v. Auten, 308 N.Y. 155, 124 N.E. 2d 99 (1954).Google Scholar

7. Restatement, Conflict of Laws, Second § 332b, Comment b (Tentative Draft No. 6, 1960).Google Scholar

8. In the case of certain torts involving injury to intangible interests, the place of injury may not be clearly identifiable and hence cannot play a significant role in the choice of the governing law. Examples of such torts are fraud and deceit and alienation of affections. A noteworthy case in this area is Gordon v. Parker, 83 F. Supp. 40 (D. Mass. 1949).Google Scholar See also Note, Conflict of Laws in Multistate Fraud and Deceit, 3 Vand. L. Rev. 767 (1950).Google Scholar

9. Waynick v. Chicago's Last Department Store, 269 F. 2d 322 (7th Gir. 1959)Google Scholar; Poplar v. Bourjois, Inc., 298 N.Y. 62, 80 N. E. 2d 334 (1948)Google Scholar; Annotation, 77 A. L. R. 2d 1266 (1961).

10. In these situations, the law of the place of injury has generally been applied. See authorities cited in Note 8, supra. One case where the law of the place of conduct, rather than the law of the place of injury, was applied is Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N. W. 2d 365 (1957).Google Scholar

11. The law of the place of injury has, however, almost invariably been applied. Maynard v. Eastern Air Lines, Inc., 178 F. 2d 139 (2d Gir. 1949)Google Scholar; Pearson v. Northeast Airlines, Inc., 180 F. Supp. 97 (S.D. N.Y. 1960)Google Scholar; Annotation, 77 A. L. R. 2d 1266, 1277 (1961).

12. Cf. Dyke v. Erie Ry. Co., 45 N.Y. 113 (1871).Google Scholar

13. Morris, The Proper Law of a Tort, 64 Harv. L. Rev. 881 (1951).Google Scholar

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16. Prosser, Law of Torts 14–20 (ad ed. 1955)Google Scholar; Cheatham, Goodrich, Griswold and Reese, Cases and Materials on Conflict of Laws 440–441 (4th ed. 1957).Google Scholar

17. 9 N.Y. 2d 34, 172 N.E. 2d 526 (1961).

18. Fuld, J.

19. Froessel and Van Voorhis, JJ.

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21. Paulsen and Sovern, “Public Policy” in the Conflict of Laws, 56 Colum. L. Rev. 969 (1956).Google Scholar

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23. Goodrich, , Conflict of Laws 254, 255 (3d ed. 1949).Google Scholar

24. See text following note 14, supra.

25. See text following note 16, supra.

26. Carr v. Fracis Times & Co., (1902) A. C. 176Google Scholar; Hancock, Torts in the Conflict of Laws, 3 U. of Toronto L. J. 400 (1940)Google Scholar; Lorenzen, Tort Liability and the Conflict of Laws, 47 L. Q. Rev. 483 (1931).Google Scholar

27. Ehrenzweig, The Lex Fori—Basic Rule in Conflict of Laws, 58 Mich. L. Rev. 1 (1960).Google Scholar

28. See text following note 16, supra.

29. Cheatham and Reese, Choice of the Applicable Law, 52 Colum. L. Rev. 959, 980 (1952).Google Scholar

30. See text following note 17, supra.