American Conflicts Law Research Articles

Rome II and Tort Conflicts: A Missed Opportunity

This article reviews the European Union's new Regulation on tort conflicts (Rome II), which unifies and federalizes the member states' laws on this subject. The review accepts the drafters' pragmatic premise that a rule-system built around the lex loci delicti as the basic rule, rather than American-style approaches, was the only politically viable vehicle for unification. Within this framework, the review examines whether Rome II provides sufficient and flexible enough exceptions as to make the lex loci rule less arbitrary and the whole system more workable.The author's answer is negative. For example, the common-domicile exception is too broad in some respects and too narrow in other respects. Likewise, the manifestly closer connection escape is phrased in exclusively geographical terms unrelated to any overarching principle and is worded in an all-or-nothing way that precludes issue-by-issue deployment and prevents it from being useful in all but the easiest of cases. The review concludes that, although attaining a proper equilibrium between legal certainty and flexibility is always difficult, Rome II errs too much on the side of certainty, which ultimately may prove elusive.On the whole, Rome II is a missed opportunity to take advantage of the rich codification experience and sophistication of modern European conflicts law. Nevertheless, Rome II represents a major political accomplishment in unifying and equalizing the member states' laws on this difficult subject. If this first step is followed by subsequent improvements, Europe would have achieved in a relatively short time much more than American conflicts law could ever hope for.

Party Autonomy and Private-Law Making in Private International Law: The Lex Mercatoria that Isn't

This essay discusses from the perspective of American conflicts law. Commonly referred to as the new lex mercatoria, these norms are drafted by various international or intra-national non-governmental organizations and are proposed for incorporation by contracting parties or for application by arbitrators, with or without the parties' prior consent. Understandably, these norms are popular among many arbitrators who tend to place them on the same footing as law. Current U.S. arbitration law uncritically permits this treatment to the extent it does not allow judicial review of an arbitrator's choice of law (or non-law). The fact that, unlike the law of most countries, American law generally enforces pre-dispute arbitration clauses in consumer contracts and most employment contracts can further exacerbate the situation. In contrast, in contracts that are not subject to arbitration, American courts apply non-state norms only to the extent they have been expressly incorporated into the contract and only if their application would not displace non-waivable rules of the law that would otherwise govern the contract. This essay applauds the latter position of American conflicts law but suggests that U.S. arbitration law should be reformed so as to provide needed protection to consumers, employees, and other presumptively weak parties.

Parochialism in American Conflicts Law

Journal Article Parochialism in American Conflicts Law Get access Mathias Reimann Mathias Reimann 1Mathias Reimann is Hessel E. Yntema Professor of Law, University of Michigan. Dr. iur. utr., University of Freiburg, 1982; LL.M., University of Michigan, 1983 Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 49, Issue 3, Summer 2001, Pages 369–389, https://doi.org/10.2307/840897 Published: 01 July 2001

Exception Clauses in American Conflicts Law

Exception Clauses in American Conflicts Law

Codification of Conflicts Law: The Louisiana Draft

Codification of conflicts law, a reality in much of the world,' has been a matter somewhat remote from domestic American concern. Although some have noted and analyzed foreign developments from a comparative perspective, their interest has been largely in identifying the extent to which foreign drafting has reflected acceptance or rejection of American doctrines.2 Now, for the first time in living memory, an American state has begun a full-blown codification of its conflicts law. Louisiana, an heir to the civil law tradition,3 is the site of this event, and the reporters for this revision of the state's Civil Code are trained in continental methodology.4 How will these drafters, comfortable with a tradition of codification, yet intimately familiar with the trends and tensions of current American conflicts law, adopt or adapt the rules and approaches proffered by courts and scholars here and abroad? Fascinating first clues are provided by the first segment of the

Nonpossessory Security Interests in American Conflicts Law

Nonpossessory Security Interests in American Conflicts Law Get access Friedrich K. Juenger Friedrich K. Juenger *Professor of Law, University of California at Davis Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 26, Issue suppl_1, Supplement 1978, Pages 145–169, https://doi.org/10.1093/ajcl/26.suppl1.145 Published: 01 December 1978

Marriage and Divorce in American Conflicts Law: Governmental-Interests Analysis and the Restatement (Second)

Marriage and Divorce in American Conflicts Law: Governmental-Interests Analysis and the Restatement (Second)

Marginal Remarks on the New Trends in American Conflicts Law

Marginal Remarks on the New Trends in American Conflicts Law

Joseph Story's Contribution to American Conflicts Law: A Comment

Joseph Story's Contribution to American Conflicts Law: A Comment

American Conflicts Law in Its Historical Perspective Should the Restatement Be "Continued"?

American Conflicts Law in Its Historical Perspective Should the Restatement Be "Continued"?