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A Canadian Looks at American Conflict of Law Theory and Practice, Especially in the Light of the American Legal and Social Systems

(Corrective vs Distributive Justice)

William Tetley, Q.C.*(1)

(published in (1999) 38 Col. J. Transnat'l L. 299-373)


In this article, William Tetley, a McGill University law professor, reviews the theory and practice of the conflict of laws in the United States, from a Canadian perspective. He notes the immense debt which the world owes to the "American conflicts revolution", the creativity and dynamism of which remain unequalled elsewhere, including Canada. He describes the five basic approaches to private international law problems which Western society has taken over the centuries and demonstrates how three of these approaches have informed American conflicts theory since Joseph Story. He traces the development of various "equity-oriented" conflict theories which have emerged from the "American conflicts revolution" in the twentieth century, showing how these theories in turn both reflect and promote the Aristotelian notion of corrective justice which underlies the American social and legal systems. He next demonstrates how society, substantive law and legal rules and institutions in the United States are inspired, to a significant degree, by the quest for corrective justice, while distributive justice, in the Aristotelian sense, is the dominant philosophical basis for social and legal systems in most other industrialized countries, such as Canada. Noting how the "litigation explosion" of recent decades in America mirrors and intensifies the quest for corrective, as opposed to distributive, justice, the author analyzes a sampling of U.S. conflicts decisions, in which modern U.S. conflict theories have been applied and in which the trend towards "equity analysis" is increasingly pronounced. Prof. Tetley concludes by recommending that Canadian jurists become more familiar with American conflict of law theory and practice, even as Canada pursues its own more recent and quieter conflicts revolution.


I. Introduction

1) The "conflicts revolution" in America

2) The future of American conflicts theory

3) The Canadian viewpoint

II. The Plan and Purpose of this Article

III. Five Major Approaches to the Conflict of Laws

IV. The Five Approaches in America

1) Single concepts in American theory (the first approach)

a) Joseph Story - comity and territoriality

b) Joseph Beale - vested rights

c) W.W. Cook and A.A. Ehrenzweig - lex fori

d) D. Cavers - principles of preference

e) B. Currie - governmental interest analysis

f) von Mehren and Trautman; Weintraub - functional analysis

g) W.F. Baxter - comparative impairment

h) R.A. Leflar - the "better law"

i) L.L. McDougal III - the "best law"

j) F.K. Juenger - multistate justice

2) Multiple numbered rules in America (the second approach)

a) The First Restatement 1934

b) The Restatement Second 1969

3) Authors (the third approach)

4) International conventions and national laws (the fourth approach)

a) International conventions

b) National laws

5) A metholodology (the fifth approach)

6) Eclecticism of American conflicts law

7) The importance of the American social and legal systems to U.S. conflicts law

V. The American Social System

1) Distributive justice vs. corrective justice

2) Implications of distributive and corrective justice for the legal system

3) Advantages of the American social system to America and the world

VI. The American Legal System

1) The American legal system mirrors American corrective justice

2) American substantive law

a) Personal injury/death recourses

b) The Oil Pollution Act 1990

c) Products liability

d) Medical malpractice

e) Mass torts

3) American procedural law

a) Civil jury trials and "sympathy verdicts"

b) Civil jury trials and punitive damages

c) The "American Rule"

d) Contingency fees

e) Discovery

f) Forum non conveniens

4) Conclusion - the American legal system leans towards equity

5) Advantages of the American legal system to America and the world

VII. Examples of the Orientation of American Conflicts Law towards Equity

1) Introduction

2) Products liability

a) Use of public policy

b) Statutes of repose

c) Strict liability conflicts

d) Limitation of liability

3) Personal injury

4) Automobile "guest statutes"

a) Introduction

b) Guest statutes and the most significant relationship

c) Guest statutes and the lex fori

d) Guest statutes and the "better law"

e) The Neumeier rule

f) Conclusion - guest statute conflicts

5) Environmental pollution insurance

6) Workers' compensation conflicts

VIII. Conclusions


William Tetley, Q.C.(2)

Professor, Faculty of Law, McGill University

Counsel to Langlois Gaudreau O'Connor

I. Introduction

1) The "conflicts revolution" in America

In recent decades, the world has become indebted to the United States of America for the creativity with which its scholars have formulated new theories in the field of conflict of laws. No law school course in private international law anywhere in the world today can be regarded as comprehensive if it fails to treat of the Restatement Second of the Conflict of Laws or the governmental interest analysis theory of Brainerd Currie. Throughout the twentieth century, American names, including, among others, Baxter, Beale, Cavers, Cheatham, Cook, Currie, Ehrenzweig, Lorenzen, Reese, Trautman, and the more recent (amongst others) Borchers, Juenger, Leflar, Lowenfeld, McDougal, Sedler, Symeonides, von Mehren, and Weintraub, have been predominant in the development, testing and criticism of private international law theories. American courts have been part of the process, being the anvils on which the ideas of the theorists have been hammered and tested. A veritable "American conflicts revolution", as it is now commonly termed, has made an exciting contribution to an area of legal scholarship which otherwise might have stagnated several generations ago.

2) The future of American conflicts theory

Very recently, however, American conflicts theory seems to have turned inward, with its emphasis on equity and the lex fori.

What are the reasons for this change? In my view, it is to be found in two major factors: a) the social practices; and b) the legal system of the United States. Both factors form both the background against which American conflicts thinkers have laboured and the American courts have rendered their decisions. Consideration of socio/legal factors is particularly necessary in order to understand some of the theories which the "conflicts revolution" has spawned in the United States, notably governmental interest analysis and its derivatives.

3) The Canadian viewpoint

Regrettably, the intellectual vitality and originality that have characterized the conflicts revolution in the United States in the last 70 years was not matched in either academic or judicial circles in Canada. Among the reasons for Canadian reluctance to embrace the new theories from south of the border (or to propound competing theories), has been the historic reliance, at least in the nine common law provinces of Canada, on the country's English common law heritage, including the British common law rules of private international law. Although there has been considerable Canadian common law and civilian publication, both towed the English line ; nevertheless civilian writing, on occasion, was imaginative.(3)

In more recent times, however, two major changes have occurred. First, Canadian law, and particularly conflicts law, has become very Canadian. Secondly, as the twentieth century draws to a close, there can be no doubt that the paramount foreign influence in Canada is now that of America. In virtually every field, particularly the economy (increasingly regulated by the North American Free Trade Agreement) and culture (where American books, television, motion pictures, and ideas radiate an ever-growing attraction), Canada feels the impact of its neighbour's international power, wealth and stature. As former Canadian Prime Minister Pierre-Elliot Trudeau once remarked in jest, for Canadians, living with the United States is like being a mouse sleeping with an elephant.

For these reasons, it is important for Canada's legal community (judges and lawyers, as well as professors and students of the law) to understand the way in which private international law theory and practice have evolved in America and what stage that development has now reached.

II. The Plan and Purpose of this Article

This article will first set out the five theoretical approaches to conflict of laws and will then point out that America uses only three of those approaches. Thereafter aspects of the U.S. social and legal systems, and their political undercurrents, will be reviewed. Finally, an explanation will be given of how these undercurrents affect conflict theories in our great neighbour to the south. The whole will be a Canadian view of a mouse looking at an elephant.

III. Five Major Approaches to the Conflict of Laws

Most writers on private international law commence their analysis with an historical analysis, and there are excellent histories of both U.S. (4) and Western(5) conflicts of law. Private international law may perhaps be analyzed more revealingly, however, if one looks at the way the various theories approach the subject.

Over the centuries, four principal approaches have been developed to dealing with the classic conflict of laws issues: choice of law, choice of jurisdiction and recognition. The four approaches are as follows:(6)

1) Single concepts or principles. This approach strives to develop a few basic principles which can be applied to any given conflicts issue. This was the earliest of the approaches, dating back to the theories of the medieval Statutists.(7) It was reflected as well in the "law of the citizen" theory espoused by French Civil Code from its promulgation during the reign of Emperor Napoleon Bonaparte.(8) It can also be seen in "comity" and "territoriality" of Joseph Story, "the closest and most real connection" of Morris and "interest analysis" of Currie.

2) Multiple numbered rules. Another way of resolving conflicts of law is by the application of a numbered rule, drawn from a compilation of such rules compiled by a reputed legal scholar or legal institute. Such private conflicts codifications strive to provide a specific rule to govern every imaginable conflict problem which may arise in every field of the law (contracts, torts, property, marriage, divorce, successions, trusts, wills, etc.). The best-known works of this kind, still frequently used and cited by lawyers and judges throughout the English-speaking world, are Dicey and Morris on the Conflict of Laws(9) and the Restatement Second of the Conflict of Laws. Because no rule can provide for every possible situation, however, volumes of this kind typically include exceptions, and frequently exceptions to exceptions, to the rules they propound, all of which casts doubt on the validity of the rules-based approach and often makes the quest for an exact solution in a particular case complex and uncertain.(10)

3) General texts, commentaries and essays. The third approach is that of many modern professors and scholars, who, without being wedded to any single concept or principle, and without undertaking to boil down the case law into black-letter rules, prefer merely to describe the conflict law of a particular country or jurisdiction in discursive textbooks and learned treatises, as well as in commentaries and articles published in law reviews around the world. Today, such writings abound in all major common law and civil law nations.(11)

4) International conventions and national legislation. The most recent approach to private international law is to be found in the adoption of international conventions(12) and national statutes(13) enacting particular sets of conflict rules for different areas of law, whichrules then applygenerally in all conflicts litigation before courts in States party to such conventions or before courts in the jurisdiction subject to the national legislation. This approach is particularly prevalent in the European Union and in civilian countries and appears to be the "way of the future", although it is only slowly being implemented in the United States.

5) A methodology - a fifth approach. A fifth approach consists in applying to any conflict of law problem a consistent methodology, which permits judges to apply the various conflicts rules and principles systematically and in a given order, in reaching their decisions.(14)

IV. The Five Approaches in America

1) Single concepts in American theory (the first approach)

a) Joseph Story--comity and territoriality

The first great American thinker on conflicts theory was that consummate jurist and scholar, Joseph Story. In his great work, Commentaries on the Conflict of Laws, foreign and domestic, first published in 1834,(15) Story, in effect, laid down four interrelated principles on which his whole theory was based:(16)

1) Legal rules of a jurisdiction have effect only within that jurisdiction's territorial limits; or apply only to citizens of that jurisdiction.(17)

2) All nations (and, in the case of federal states, political subdivisions of such states within the scope of their jurisdiction) are equal and independent. Each of them may therefore legislate freely as sovereign entities.(18)

3) The laws of each nation exclusively govern all conduct within that nation's territory.(19)

4) Each state possesses exclusive jurisdiction over its territory, so thatno state can bind persons or property lcoated outside that territory.(20)

On these foundations, Story articulated his theory of the "comity of nations",(21) requiring each state to recognize the legitimate laws of other states, in the expectation that those other states in turn would recognize the laws of the first state.(22) Foreign laws were not to be recognized or enforced, however: "... when those laws are deemed oppressive or injurious to the rights or interests of the inhabitants of the latter [nation], or when their moral character is questionable, or their provisions are impolitic or unjust".(23)

Subject to that public policy exception, territoriality and comity were the hallmarks of Story's conflicts theory, a theory which was a formative influence on generations of American lawyers and judges. The theory provided solid intellectual backing for the lex loci contractus and lex loci delicti conflict rules in contract and tort, as well as for the law of the flag theory in maritime law conflicts.(24)

b) Joseph Beale--vested rights

A second major figure shaping American conflicts theory was Joseph Beale, who espoused the vested rights doctrine, promoted in England by A.V. Dicey.(25) Under this concept, the duty to recognize rights arising under foreign law was not dependent on comity, with its expectation of reciprocity, but rather on the mere fact that such rights had been validly created under the foreign law of their place of origin.; i.e., that they were "vested rights".(26) Beale's formulation summarizes the essence of the principle: "A right having been created by the appropriate law, the recognition of its existence should follow everywhere. Thus an act valid where done cannot be called in question anywhere."(27) In the United States Supreme Court, Justice Holmes spoke of the foreign law creating an obligation which followed the person and could be enforced wherever he or she was found.(28)

Beale's later work clearly expounds a conflict theory founded upon both comity and vested rights.(29) His views were especially influential in the formulation by the American Law Institute of the first compilation of multiple numbered rules to be produced in the United States, the First Restatement of the Conflict of Laws.(30) Beale served as reporter in the drafting of that document. c) W.W. Cook and A.A. Ehrenzweig--lex fori

c) W.W. Cook and A.A. Ehrenzweig -- lex fori

Walter Wheeler Cook, concentrated on demolishing the vested rights doctrine of Dicey and Beale.(31) Cook debunked as fiction the whole notion that any right could be "vested", contending instead that courts did not in fact "enforce" rights created under foreign law, but rather enforced only domestic rights which they themselves chose to create and enforce.(32) The local law therefore created rights in cases having foreign elements in order to meet the demands of justice. Implicit in Cook is a bias in favour of the law of the forum, or "homeward trend", demonstrating a preference for the application by American judges of local law.

The homeward trend was later reinforced by Albert Ehrenzweig, a writer the breadth of whose scholarship is dazzling, but whose support for the lex fori is advocated with a cynicism verging on sarcasm.(33) Ehrenzweig recognized that in rare situations the local law would expressly provide for its own mandatory application, even in cases having foreign elements. Similarly, in rare cases, a U.S. Constitutional rule, a treaty provision or some statutory ("formulated") or judge-made ("non-formulated") choice of law rule of the forum might dictate the application of foreign law. In the majority of cases, however, where no such choice of law directives were present, the court should analyze the policy underlying the local substantive rule, in order to determine whether it should be displaced by the foreign rule. Where no such displacement resulted from the analysis, the local law should be applied as "residuary law".(34) In practice, foreign law would seldom be applicable under Ehrenzweig's theory.

The lex fori continues to exert a powerful attraction in American conflicts decisions. It is routinely applied in tort conflicts in Kentucky, Michigan and Nevada.(35)

d) D. Cavers--principles of preference

Believing that a just result was the paramount goal of choice of law decisions, David Cavers called on courts to analyze the controlling policies underlying the different competing laws and the concrete results which their application would entail in the given case. (36) These results were then to be appraised from the standpoint of justice or broader considerations of social policy. This process, argued Cavers, would eventually result in the development of criteria for assessing the competing social values advanced by the competing rules, so that the preferable rule could be identified. These criteria came to be known as Cavers' "principles of preference".(37)

e) B. Currie--governmental interest analysis

Cavers' work was largely overshadowed by the figure of Brainerd Currie, who also rejected mechanical rules. His theory, which came to be known as "governmental interest analysis", advocated that courts, in making choice of law decisions, seek to effectuate the legitimate interests of the state whose policies are most directly concerned by the event or transaction in question. The theory was predicated on the notion that every state has a legitimate interest in having its "social, economic or administrative policy" implemented in the resolution of the choice of law issue.(38)

Currie was instrumental in developing the distinction between "true" and "false" conflicts. Where there was no conflict of laws, or where one of those laws was not intended to apply to the case at bar, there was a "false conflict", which obviated the need for any choice of law. In such cases, only one state had a genuine interest in having its law applied. That state was often the forum. Where, however, the competing laws were different, and where the policies underlying each of them had a genuine claim to application, there was a "true conflict". True conflicts required the forum court to consider whether a more restrained interpretation of the policies or interests of one state could avoid the conflict. If not, then the lex fori was to be applied in all cases. Currie opposed all efforts at weighing the competing interests at stake in true conflicts situations, insisting that such an analysis was the province of the legislator, not of the courts.(39) He also called for forum law in "unprovided for" cases, where neither the forum state nor any foreign state had an interest in seeing its law applied.(40)

Currie's theory, like Ehrenzweig's, therefore legitimated a virtually total deference to forum law, entrenching the "homeward trend" in American conflicts thinking. Both concepts are rooted in a nihilistic rejection of traditional conflicts theory.(41) They also tend to promote forum shopping and to deny the two historic goals of private international law: the quest for justice in the individual case and the search for uniform, predictable solutions. Nevertheless, Currie's doctrine has influenced a large number of subsequent conflicts authors, while governmental interests and policies were accorded a measure of recognition in the Restatement Second of the Conflict of Laws.(42) Interest analysis, in modified form, is also the paramount theory implemented in practice in decisions of courts on tort conflicts in at least three U.S. jurisdictions today; viz., California, the District of Columbia and New Jersey.(43)

f) von Mehren and Trautman; Weintraub--functional analysis

Arthur Taylor von Mehren and Donald T. Trautman introduced a method of weighing governmental interests (which Currie had opposed), without adhering to his forum bias. Their "functional analysis" would require courts to apply the following principles in weighing conflicting policies:(44)

1) the choice of the state's law whose policies are most strongly held;

2) the choice of the law reflecting an "emerging" policy over one embodying a "regressive" policy;

3) the choice of a law expressing the more specific rather than the more general policy;

4) selection of the rule best designed to effectuate an underlying policy;

5) avoidance of a choice which would frustrate an underlying policy.

Multijurisdictional rules were advocated where weighing did not provide a solution. Von Mehren called for "special substantive rules" of law for true conflicts cases involving two or more jurisdictions. The purpose of such rules would be to strike a balance between "aptness" and "uniformity".(45)

Russell J. Weintraub articlulated very specific criteria for weighing competing policies in tort conflicts, many of which nevertheless echo those of von Mehren and Trautman:(46)

1) the advancement of clearly discernible trends in the law;

2) the avoidance of unfair surprise to the defendant;

3) the avoidance of anachronistic rules;

4) reference to the foreignjurisdiction's choice-of-law rule to determine the extent of its interest.

In tort, Weintraub propounds a rule that in true conflict cases, the courts should apply the law which will favour the plaintiff, unless it is anachronistic or aberrational, or unless the state with that law does not have sufficient contact with the defendant or the defendant's actual or intended course of conduct to make application of its law reasonable.(47) In contract cases, he favours the validating law.(48)

Functional analysis generally is a difficult, imprecise and necessarily subjective exercise, which can result in uncertainty and unpredictability of result. It also is an example of how the governmental interest theory has become a tool for pursuing equity in the individual case. In fact, it can be argued that the weighing process, focussing on "regressive" as opposed to "progressive" laws, is a disguised effort to identify and "effectuate" the interests of the under-dog in a given conflicts litigation.

g) W.F. Baxter--comparative impairment

Another derivative of Currie's governmental interest analysis is the comparative impairment theory of W.F. Baxter.(49) The theory calls on courts to determine which state's policies and interests would be more greatly impaired by the application of the other state's law to the case at hand and then to apply the law of the state likely to suffer such greater impairment. Although Baxter declares that his approach does not require weighing of the comparative interests of the states concerned, courts applying his theory do sometimes engage in such an analysis.(50)

Comparative impairment has had some influence in the courts of California.(51) The theory is also invoked, in the language (although perhaps not the spirit) of the Louisiana Civil Code's provisions on conflicts.(52)

h) R.A. Leflar--the "better law"

Instead of weighing interests, Robert A. Leflar has developed five "choice-influencing considerations" which he advocates as principles appropriate to aid courts in their choice-of-law analysis:(53)

1) predictability of results;

2) maintenance of interstate and international order;

3) simplification of the judicial task;

4) advancement of the forum's governmentalinterests; and

5) application of the better rule of law.

The application of these criteria, especially the "better law", once again appears to be a device for securing the interests of plaintiffs. The method, like the functional analysis of von Mehren and Trautman and Weintraub, is highly subjective and can produce results that are arbitrary and unpredictable.(54) They can also result in practice in a lex fori preference, although Leflar himself warned that the better law was not synonymous with forum law.(55)

The "better law" concept is a major element of conflicts decisions in tort conflicts in Arkansas, Minnesota, New Hampshire, Rhode Island and Wisconsin, and in contract conflicts in Minnesota and Wisconsin.(56)

i) L.L. McDougal III--the "best law"

Luther L. McDougal III is part of a new school of American conflicts thought, which can best be described as result-oriented, or "teleological". He calls for courts in the United States to seek the "best rule of law" in both interstate and international conflicts. He defines the "best rule of law" as the rule which "... best promotes net aggregate long-term common interests",(57) or as the law that best responds to "contemporary socioeconomic policies".(58) He advocates the development and application of transnational laws to accommodate "transnational community policies".(59) The quest for such enlightened transnational policies would result in the formation of a new ius gentium, or law of nations.

j) F.K. Juenger--multistate justice

Along similar lines to McDougal, Friedrick K. Juenger envisages a new ius gentium, founded upon a result-oriented quest for rules that will foster "stability and fairness", thus achieving "multistate justice".(60) In fact, Juenger and his followers have expended considerable energy in endeavouring to show that American judges are already applying this teleological approach in the conflicts decisions they are rendering.(61)

Teleological analysis, like functional analysis, may be criticized as uncertain, arbitrary, homeward-looking, and as a disguised search for equity, rather than a principled application of law.(62)

2) Multiple numbered rules in America (the second approach)

a) The First Restatement 1934

In 1934, the American Law Institute adopted the First Restatement of the Conflict of Laws.(63) It consisted of 625 specific rules (with exceptions), designed to be applied mechanically by courts in resolving automatically any conflict in any field of law. With Joseph Beale as reporter, it is scarcely surprising that the First Restatement emphasized both the single concepts of territoriality(64) and vested rights(65), enshrining, for example, the lex loci contractus in contract(66) and the law of the place of injury in tort.(67)

b) The Restatement Second 1969

In 1969, with the American conflicts revolution in full swing, the American Law Institute adopted the Restatement Second of the Conflict of Laws.(68) Although it was a compilation of multiple numbered rule like its predecessor, the Restatement Second was also very different, in that it blended into its black-letter rules (which partly still reflected traditional doctrine) certain elements found in one or other of the more modern conflicts theories, notably governmental interest analysis. It also took account of the importance of connecting factors, or contacts, permitting the identification of the law having the "closest and most real connection" with the parties and transactions concerned, this law being known as the "proper law". The proper law is arguably the most important finding in the history of conflict of laws, and one attributable primarily to the work of the English scholar, J.H.C. Morris. (69)

Section 6 of the Restatement Second lays out seven "Choice of Law Principles", being criteria to be borne in mind by courts in making choice-of-law decisions: a) the needs of the interstate and international systems; b) the relevant policies of the forum; c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue; d) the protection of justified expectations; e) the basic policies underlying the particular field of law; f) certainty, predictability and uniformity of result; and g) ease in the determination and application of the law to be applied.

The Restatement Second further incorporates the proper law theory, in its inclusion, especially in Rule 188 on contract conflicts, that the law to be applied, in the absence of an express choice by the parties, is the law having the "most significant relationship" to the parties and the transaction. The "most significant relationship" is also the key concept in tort conflicts under rule 145. In both cases, specific contacts (e.g. the domicile, residence or nationality of the parties; the place of negotiation, conclusion and performance of the contract, the place of the injury and the conduct causing it occurred) assist in pointing to the proper law.

The Restatement Second has been described as: "...the most impressive, comprehensive and valuable work on the conflict of laws that has ever been produced in any country, in any language, at any time".(70) The importance of the Restatement Second is also seen in the fact that it today constitutes the fundamental source of private international law in the United States, being applied by twenty-one states in tort conflicts and twenty-five states in contract conflicts.(71)

The Restatement has also been applied in the absence of any "established body of federal choice of law rules",(72) in a aviation disaster case arising under the Warsaw Convention 1929,(73) where the choice of law rules of the forum state did not apply.

3) Authors (the third approach)

There are, as well, many fine general texts and casebooks on private international law, produced by past and present American professors (not to mention a veritable mountain of law review articles and case comments), with the result that the third approach to conflicts is well-represented in the United States. Among the many American treatises and casebooks reflecting the third approach are: R.Lea Brilmayer, Conflict of Laws;(74) R.C. Cramton, D.P. Currie, H.H. Kay and L. Kramer, Conflict of Laws. Cases, Comments, Questions;(75) P. Hay, Black Letter on Conflict of Laws;(76) R.A. Leflar, L.L. McDougal III, R.L. Felix, American Conflicts Law(77); L.L. McDougal III, R.L. Felix, R.U. Whitten, American Conflicts Law: Cases and Materials(78); A. Lowenfeld, Conflict of Laws. Federal, State, and International Perspectives;(79) M. Rosenberg, P. Hay and R.J. Weintraub, Conflict of Laws. Cases and Materials;(80) E.F. Scoles and P. Hay, Conflict of Laws;(81) David Siegel, Conflicts in a Nutshell;(82) S. Symeonides, W.C. Perdue, A.T. von Mehren, Conflict of Laws. American, Comparative, International Cases and Materials(83) and Russell J. Weintraub, Commentary on the Conflict of Laws.(84)

4) International conventions and national laws (the fourth approach)

a) International conventions

Historically, the United States has ratified few international conventions.(85) Nevertheless, in recent decades, America has become a party to a number of very important conventions which contain significant conflicts rules. Among these are the New York Convention 1958 on the Recognition and Enforcement of Foreign Arbitral Awards(86) and the Inter-American Convention on International Commercial Arbitration 1975.(87) The United States is also a party to the United Nations Convention on Contracts for the International Sale of Goods 1980,(88) as well as several Hague Conventions.(89)

b) National laws

The only comprehensive conflicts statute in America thus far is the Louisiana Civil Code, as amended in 1991.(90) With the exception of Louisiana, America is thus out of step with the fourth approach, now the dominant trend in the rest of the world, as States move increasingly towards national and international codifications of conflict rules.

5) A methodology (the fifth approach)

American conflicts theory, despite its incredible richness and creativity, has unfortunately failed to develop a systematic methodology whereby the various elements which must be taken into account in addressing a conflict of laws problem (especially one involving a choice of law) should be considered by judges or arbitrators. As a result, there is really no "road map" to assist legal decision-makers in a conflicts case in knowing how to embark upon their choice of law analysis, and in what order the different concepts and principles (e.g. mandatory rules, renvoi, pubic policy, connecting factors, interests and policies) should be taken into account in formulating and rendering their decisions.

In one sense, America is no less advanced in this domain than other countries (including Canada), because even States which have enacted conflicts statutes in recent years have seemingly shied away from enacting any rules with respect to conflicts methods.(91)

It is to be hoped, however, that American conflicts authors would consider devoting some of their attention and energy to this important lacuna in contemporary conflicts scholarship.(92)

6) Eclecticism of American conflicts law

In practice, it is somewhat rare for an American court to base a choice-of-law decision on only one approach or theory. Ordinarily, at least two different approaches can be found in the reasoning of the court. Particularly in tort conflicts, the "most significant relationship" rule of section 145 of the Restatement Second is often invoked, together with governmental interest analysis or one of its derivatives. This "eclecticism" in judicial practice is a well-known feature of contemporary U.S. private international law.(93)

7) The importance of the American social and legal systems to U.S. conflicts law

The various conflict of laws theories now prevalent in the United States, and particulary the equity-oriented theories of Weintraub, Leflar, McDougal and Juenger, must be understood as expressions of basic features of the American social system and the American legal system. It is important to identify some of these characteristics which distinguish America from most other industrialized democracies, and which affect the theory and practice of private international law in the United States.

V. The American Social System

1) Distributive justice vs. corrective justice

The American social system is essentially founded on corrective, rather than distributive, justice. The distinction between these two forms of justice goes back to Aristotle(94) and is a fundamental one in legal theory throughout Western civilization. A very brief, thumbnail sketch of distributive and corrective justice is therefore appropriate at this point.(95)

Aristotle saw justice, unlike other virtues, as primarily social, rather than personal. Rather than focusing on the individual's inner dispositions and character, justice concerned the relationships between individuals in society. Its domain was the person's external acts and "holdings" (e.g. money, honours and security).(96) Like other virtues, however, justice had a "mean", or intermediate point between excess and deficiency. That point he termed "equality" (or fairness).(97) With respect to "holdings", the just mean was the mid-point between the two injustices, consisting respectively of having either too much or too little in comparison to others.

For Aristotle, justice (achieving the mean of equality) operated in two contrasting modes or forms, each of which corresponded to a mathematical operation. These two modes were termed "distributive justice" and "corrective justice". Distributive justice involved a "distribution", whereby a benefit or asset was divided among the members of a group according to some criterion of comparative merit. The criterion was selected for a particular purpose and was applied consistently to all members of the relevant group who qualified for participation in the group. The greater the party's merit under the criterion of distribution, the greater his share of the benefit or assets would be. Distributive justice was just, inasmuch as the ratios applied in the allocation were equal. Aristotle called this type of equality "geometrical".(98)

Corrective justice, on the other hand, did not feature "distributions", but rather "transactions". Transactions were either "voluntary", being consensual transfers by a person of some or all of his "holdings" to another, or "involuntary", resulting from one person depriving another of some or all of his "holdings" without the latter's consent. Equality in corrective justice was not an equality of ratios, but rather an equality of quantities. Aristotle referred to such equality as "arithmetic".(99) The object of corrective justice was to restore to the party who had been wrongfully dispossessed of something rightfully belonging to him, either the thing itself or its value; i.e. to give him back his "due". In that way, the mean (being the initial holding as at the start of the transaction) would be re-established,(100) thus recreating a notional equality. The merit (worthiness) of the parties was irrelevant to the Aristotelian view of corrective justice.

2) Implications of distributive and corrective justice for the legal system

Implicit in distributive justice is the notion of some form of social community (the members of which participate in the distribution) and some criterion of distribution selected for a purpose. These elements are less significant for corrective justice, which relates primarily to the transactions between individuals as regards their respective holdings. The concept of one's due is purely private and individual in corrective justice, and there is no duty to confer ownership on others, but only to refrain from depriving others of what is their due.(101)

The difference between corrective justice and distributive justice therefore relates to the structure by which interactions are ordered by the legal system. As Weinrib comments:(102)

"To take a modern example, the legal regime of personal injuries can be organized either correctively or distributively. Correctively, my striking you is a tort committed by me against you, and my payment to you of damages will restore the equality disturbed by my wrong. Distributively, the same incident activates a compensation scheme that shifts resources among members of a pool of contributors and recipients in accordance with a distributive criterion. From the standpoint of Aristotle's analysis, nothing about a personal injury as such consigns it to the domain of a particular form of justice. The differentiation between the corrective and distributive justice lies not in the different subject matters to which they apply, but in the differently structured operation that each performs on a subject matter available to both."

The structure of the American tort law system is eminently "corrective", inasmuch as virtually all compensation (except for work-related injury) for loss or damage is sought through litigation by the injured party (or his/her private insurer) against the party alleged to be legally responsible for the harm sustained by the plaintiff.(103) In most other other industrialized countries, by comparison, compensation for a wide array of different losses and damages caused by tortious acts or omissions (e.g. automobile or industrial accidents or sickness/disability) is secured through public insurance schemes. Such insurance programmes bear the imprint of distributive justice, in the Aristotelian tradition, because the benefits they provide are allocated out of a common fund (to which all citizens involved typically contribute) and the quantum of benefits so distributed is determined by the application of defined criteria of entitlement, applied uniformly in accordance with legislation governing the schemes concerned.

3) Advantages of the American social system to America and the world

Although different from the majority of industrialized nations in basing its social system so largely on the Aristotelian model of corrective, rather than distributive, justice, America derives certain benefits from that fundamental orientation. In particular, the system frequently provides more generous compensation to the victims of torts such as automobile accidents and occupational injuries and diseases than is usually available under the public insurance plans of other "welfare state" jurisdictions. The system also leaves greater scope for the insurance industry, thereby respecting the traditional American preference for private enterprise, while also providing employment in the private sector for persons who might otherwise have to seek careers in other lines of insurance or other areas of the economy.

In addition, it can be argued that the corrective justice approach to tort compensation helps keep the taxes of Americans lower than those of other countries (e.g. Canada), where a more distributive justice model requires higher taxation to fund more comprehensive social programmes.

The American social system, although providing less in the way of a "social safety net" than the social systems of some other "First World" countries, nevertheless exerts a strong attraction on many people in other countries. This is shown by the continuing high levels of immigration to the U.S. (both legal and otherwise), as well as by the abiding image of America, particularly in "Third World" countries, as the "land of opportunity", providing freedom, justice and a real opportunity to attain to affluence and the "good life" for oneself, one's loved ones and one's offspring.

VI. The American Legal System

1) The American legal system mirrors American corrective justice

The predominance of corrective over distributive justice explains many features of the American legal system, particularly in the realm of tort law. These features are also reflected in the most recent conflict of laws theories of American legal authors and in the practice of conflicts law in U.S. courts.

Americans look primarily to the courts, rather than to legislatures, to compensate the victims of tortious behaviour in U.S. society. Understandably, therefore, American tort law is more favourable to plaintiffs than the corresponding law in many other countries where reliance on corrective justice is less exclusive.(104) Several aspects of American substantive and procedural law also explain why American courts have proven popular venues for litigation by foreigners.

2) American substantive law

a) Personal injury/death recourses

The plaintiffs' bar is especially active in America in personal injury and death litigation. A 1991 survey shows that there are at least seven hundred personal injury verdicts annually in the United States of more than one million dollars, compared to less than forty such awards a year in England and Wales combined.(105)

Maritime personal injury and wrongful death practice is especially noteworthy. Approximately 50% to 60% of the business of the maritime bar in the United States consists of personal injury claims of seamen, longshore workers and other maritime employees.(106) The explanation is at least partly that American maritime law affords more judicial recourses to maritime workers and their estates than exist in most other comparable countries. Whereas in the United Kingdom and Commonwealth countries, the law on maritime personal injury is really no different from general workers' compensation legislation,(107) American law permits the injured seamen or longshoreman to exercise an array of different recourses, depending on the circumstances of the case. Injury claims of seamen based upon unseaworthiness, as well as claims for maintenance and cure, asserted under the general maritime law of the United States, may be combined with injury claims based on negligence of the employer under the Jones Act.(108) Wrongful death suits for unseaworthiness under the Death on the High Seas Act(109) or under the general maritime law (where the death occurs in U.S. territorial waters) may be combined with suits alleging negligence under the Jones Act.(110)

Moreover, the remedy under the general maritime law for wrongful death in territorial waters resulting from unseaworthiness, recognized by the U.S. Supreme Court in 1970,(111) was extended by the Court in 1996 to non-seafarers, including jet skiers and recreational boaters,(112) thereby providing a new field of maritime casualty practice to the U.S. admiralty bar. Defendants' attorneys at the maritime bar generally have no objection to the perpetuation of this busy and generally lucrative practice. Ever solicitous for the well-being of seafarers, the U.S. also compensates them for certain emotional injuries sustained in the performance of their duties.(113)

Among the substantive law reasons which account for the large damages in personal injury cases in the United States, are the "collateral benefits rule" (or "collateral source rule"), whereby personal injury damages are not reduced to take account of amounts received by the plaintiff from either public sources (e.g. U.S. Social Security) or private sources (e.g. the employer's workers' compensation or other private insurance plans).(114) In most other Western democracies, by comparison, the social insurance agencies have rights of subrogation after paying the claimant, and the latter's recovery is reduced by the amount received from the insurance programme.

A further factor is that in the United States, tort awards for injury are based on gross, rather than net (after-tax), income.(115) A third major reason is American generosity (particularly in civil jury trials) in the granting of punitive and non-pecuniary damages.(116)

b) The Oil Pollution Act 1990

Another area in which American maritime law is generally more generous to victims than the law of most other jurisdictions is in compensating the victims of marine oil pollution. The United States was the first major nation to recognize the dangers of pollution of the marine environment and has proceeded to pass a plethora of laws on the subject, over the last thirty years.(117)

In 1990, following the EXXON VALDEZ oil spill in Alaska in 1989, the U.S. Congress passed the Oil Pollution Act 1990 (OPA '90).(118) OPA '90 provides for six categories of recoverable damages,(119) including economic losses resulting from the injury or destruction of real or personal property.(120) The limits of liability are also high, up to $10 million U.S. for tankers larger than 3000 gross tons, as well as $350 million for on shore facilities or deepwater ports and $75 million for offshore facilities.(121) Removal costs are also provided for.(122)

Because OPA '90 does not pre-empt the laws of U.S. states imposing liability for pollution damage and removal costs,(123) it does not preclude the granting of economic loss damages under the common law of various U.S. states, where that law does not require proof of any damage to a proprietary interest (i.e. "pure" economic loss).(124) It is also significant that, even before the enactment of OPA '90, commercial fishermen in America were permitted to recover pure economic loss in pollution cases under the general maritime law of the United States.(125)

Pure economic loss has also been granted under other U.S. pollution statutes, notably the Trans-Alaska Pipeline Authorization Act (TAPAA), at least up to the limits of liability set by that statute.(126)

Foreign plaintiffs have not been slow to seek the benefits of greater awards for pollution damages available from U.S. courts. The best example is probably The Amoco Cadiz,(127) where a host of French plaintiffs, after fourteen years of litigation in the U.S., were able to recover some $85.2 million under American law, in respect of a 1978 pollution incident along the French coast.(128)

c) Products liability

Spurred on by the entrenchment in U.S. law of the strict liability doctrine in the 1960's, and its extension from construction defects to design defects (involving whole product lines, rather than merely individual products), the number of products liability cases in U.S. federal courts alone increased from about 4,000 in 1976 to over 10,000 in 1983.(129) Average awards in such cases went from $340,000 U.S. in 1974 to $1.07 million U.S. in 1984, with total awards growing from $700 million U.S. in 1980 to about $1.8 billion U.S. in 1985.(130)

d) Medical malpractice

The plaintiffs' bar in America has also been effective in seeking "deep pockets" out of which to compensate victims among the ranks of the medical profession.. Whereas 1956 saw one malpractice claim for every 65 physicians in the United States, by 1983, there were 16 claims for every 100 doctors. Awards soared, with the number of million-dollar verdicts doubling between 1972 and 1983 and the average award in 1985 reaching $950,000 U.S.(131) Alarmed at the American trend in this area of practice, Lord Denning issued a warning in England:(132)

"Take heed of what has happened in the United States. 'Medical malpractice' cases there are very worrying, especially as they are tried by juries who have sympathy for the patient and none for the doctor, who is insured. The damages are colossal. The doctors insure but the premiums are very high: and these have to be passed on in fees to the patients. Experienced practitioners are known to have refused to treat patients for fear of being accused of negligence. Young men are even deterred from entering the profession because of the risks involved. In the interests of all, we must avoid such consequences in England."

More recent statistics tend to confirm the continuation of the trend to generous payouts in U.S. medical malpractice. The median malpractice award rose forty percent from $356,000 in 1994 to $500,000. in 1995.(133)

The liberal damage awards for medical malpractice, however, are quite understandable in a social system where even government-financed medical care is reserved only for the very poor and elderly. The demands of corrective justice make it inevitable that American courts will step into the breach in compensating citizens who suffer from negligence at the hands of medical professionals. Physicians protect themselves with malpractice insurance, however costly, and continue practising. There is little objective evidence of physicians refusing treatment or young people refusing to enroll in medical schools because of fear of becoming the defendants in future litigation.

e) Mass torts

Recent decades have seen a proliferation of mass tort claims in America, in respect of defecive products, toxic substances, pharmaceuticals and large-scale disasters.(134) The threat of the complete breakdown of the judicial system under such an avalanche of litigation(135) led to the more widespread use of class actions in mass tort claims.(136) The American class action has developed so as to permit representative parties to bring proceedings on behalf of members of a class without the prior consent of those members and regardless of whether they are parties to the litigation. The court may award global damages without proof of damage in individual cases, and the outcome is binding on all class members.(137)

The "litigation explosion", led by the plaintiffs' bar, has been fueled in good part by these multi-plaintiff claims, coupled with the "ingenuity of lawyers and a welcome sign on the courthouse doors in this country..."(138) The mass tort litigation has tended to be highly concentrated, with a relatively few law firms and lawyers controlling sometimes enormous "inventories" of cases via class actions. One study shows that about fifty law firms have represented most mass tort claimants, and that the suits have tended to be concentrated in states such as Texas and along the U.S. east coast.(139)

The mass tort phenomenon has given rise to a number of cris de coeur from eminent American jurists concerned over the ultimate causes and likely effects of this development in the U.S. tort system. Russell J. Weintraub, concluding an article on the conflict of laws aspects of mass torts, focused his attention on American legal services:(140)

"The heart of the problem of mass tort litigation lies not in the conflicts problems, but in our law of torts, in the distribution of legal services, and in the civil jury trial. In short, the problems of our legal system, root and branch, are simply magnified in mass tort litigation. It is time to do the hard research and thinking necessary to learn the nature of the beast and reform it."

A similar cry for reform was voiced in the 1980's by John G. Fleming:(141)

"Mass litigation is not the only solution for mass accidents. Whether the procedure is individualized or aggregative, the tort system reveals its inefficiencies in starkest colour in dealing with mass claims....To the extent that traditional rules are already being modified in order to facilitate recovery by victims, the tort system is being distorted, even superseded. If the conventional tort law is thus proving itself inadequate to the task, should we not, instead of merely tinkering with it, consider the more radical solution of entirely replacing it by a compensation scheme?"

Such proposals are understandable when one considers the number of lawsuits filed in the United States each year (some twenty million filings having occurred in 1992, for example), with an estimated total price tag, including both direct and indirect costs, of some $200 billion annually.(142)

The mass tort litigation explosion is comprehensible, however, in the light of the corrective justice system underlying American civil justice and may be seen as a natural by-product of that system, where the courts are looked to as the primary instruments of securing compensation for tortious injuries, both individual and collective. The large recoveries of tort plaintiffs permit them to go on living according to a decent standard, which might not be possible otherwise. Nor has the U.S. judicial system collapsed under the weight of the litigation avalanche.

3) American procedural law

Just as substantive tort law in the United States has contributed to the pro-plaintiff orientation of courts and to high damage awards, these tendencies have been reinforced by various aspects of American procedural law. Foremost among these are civil jury trials and lawyers' contingency fees, the granting of punitive damages, as well as the "American Rule", shielding the losing party in a civil suit from having to pay the legal fees of the winner, and the American practice of pre-trial discovery.

a) Civil jury trials and "sympathy verdicts"

The United States provides a general right to a jury trial in civil cases in federal courts, guaranteed by the Seventh Amendment to the U.S. Constitution. (143) This is quite a distinct feature of the American state legal system in comparison with those of most other Western countries. (144) It is a characteristic which has come under increasing attack in recent years by American students of the U.S. judicial structure. One noted scholar has commented:(145)

"Trial by judge is just not the same thing as trial by jury. Judges give reasons for their decisions, juries do not; judges cannot openly discard or flout the law; juries can; judges at least attempt to put aside prejudice and emotion, juries often do not. Nobody can doubt that jury trial is a less rule-governed and less predictable mode of trial than judge trial."

Among the constant criticisms levelled at American civil juries is their record of largesse in the awarding of damages, particularly against corporate defendants, whose pockets are perceived to be "deeper" than average.(146) In one study of 19,000 U.S. state jury trials, in which corporations made up slightly more than a quarter of the defendants, the awards against corporations were found to be 4.4 times those in similar cases involving individual defendants and three times those against government defendants.(147) Such "sympathy verdicts" can be especially high in products liability cases and medical malpractice suits.(148) The median civil jury award rose seventeen percent in 1996.(149)

b) Civil jury trials and punitive damages

Extraordinarily large punitive damage awards, continue to be a concern in the United States. The Supreme Court, to its credit, however, has not hesitated to intervene to redress the balance, in the interests of justice, where it has found such awards excessive. One fairly recent example is the decision of the U.S. Supreme Court in BMW of North America, Inc. v. Gore.(150) The Court overturned an award of two million dollars in punitive damages to an Alabama doctor who discovered that his new BMW car had been secretly repainted by the dealer after being scratched prior to delivery. The original jury award had been four million dollars and had been cut in half by the Alabama Supreme Court, on the basis that the jury had erred in basing part of the claimant's award on conduct that occurred outside of Alabama.(151)

In other jurisdictions, punitive damages are not granted as freely. In the United Kingdom, for example, under the House of Lords' 1963 decision in Rookes v. Barnard,(152) "exemplary" damages are granted only in three types of case; a) cases where the government or a government agent has acted in an "oppressive, arbitrary, or unconstitutional" manner; b) cases where it appears that "the defendant has calculated that the profit to be made from a course of conduct is likely to exceed any compensation payable to the plaintiff"; and c) cases in which exemplary damages were permitted by statute prior to 1964.(153) Courts also intervene to reduce exemplary damages, although the sums involved tend to be significantly lower than those in many United States cases.(154)

There is an increasing awareness in the United States that there is a need for guidelines to prevent the arbitrary and abusive damages imposed by jury verdicts on hapless defendants, especially in assessing non-pecuniary and punitive damages, and that such guidelines should also apply to judges in the event that law reform should result in the jury deciding only liability and the judge deciding on the quantum of the award.(155) Some states, notably Connecticut, Kansas and Ohio, have enacted statutes permitting punitive damages to be assessed by the judge, with the jury deciding liability and compensatory damages.(156)

The plaintiffs' bar, however, continues to defend the traditional jury system, at least in part because the contingency fees which they earn in so many tort cases in particular gives them a financial stake in the existing order.(157) In fairness, however, the American preoccupation with jury trials reflects also the persistence of the concept of justice being dispensed by a panel of one's peers, an important and traditional element of the American ideal of freedom and equality.

Generosity in granting punitive damage also follows from the corrective, as opposed to distributive nature, of the social system, where punitive damages are seen as part of the overall restitution to which an injured party is legitimately entitled from the court, as well as a means of discouraging "transactions" (to use the Aristotelian term) which work injustice to hapless victims.

c) The "American Rule"

The "American Rule", prohibiting courts from charging losing litigants with the legal fees and court costs of their successful adversaries, is another distinctive feature of the American legal system.(158) It was traditionally seen as a basic freedom stemming from the American Revolution, representing a deliberate departure from English practice, one which reflected colonial distrust of lawyers and a general sense that the English legal system unduly favoured the wealthy and powerful.(159) Today, however, the American Rule is subject to numerous exceptions, statutory,(160) contractual(161) and judge-made.(162)

While the "American Rule" is founded on the noble ideal of fostering access to justice for rich and poor alike,(163) it has also fostered the proliferation of lawsuits, inasmuch as, unlike the British and Continental loser-pay principle, "...it does not provide enough disincentive to nuisance litigation."(164) Moreover, even where a statute provides for the payment of attorney's fees, the fee-shifting is often only a "one-way shifting", permitting the plaintiff to collect his fees if successful, while precluding the defendant from doing so if he wins the case.(165) Such legislation does not discourage frivolous claims. The "American Rule" has therefore contributed, indirectly if not directly, to the "litigation explosion" in the United States in recent decades and thus to the escalation of damage rulings in tort, and the general pro-plaintiff orientation of tort law and practice.(166)

In consequence, there is an ongoing debate on the virtues and defects of the American Rule in the United States, while at least one state, Alaska, has opted for a European-style fee-shifting rule.(167)

d) Contingency fees

The proliferation of lawsuits and the magnitude of damage awards in the United States are also attributable in part to the American system of contingency fees, under which the plaintiff's lawyer agrees with his client, before accepting the case, that he will be paid out of the sum the plaintiff recovers in the action if he wins, rather than at an hourly rate. In return, the lawyer agrees that he will be paid nothing should his client's claim fail. The contingency system in effect makes the plaintiff's attorney a "risk-bearing co-venturer...who will not get paid in case of defeat."(168) This system of remuneration of plaintiffs' attorneys is virtually standard in tort suits in the United States (the defendant's counsel usually being paid at an hourly rate). The typical contingency fee is 33 1/3% of whatever the plaintiff recovers in the litigation, although a variety of specific arrangements is possible (notably sliding scales). There has also been some effort at regulation so as to prevent abusive contingent fees.(169) In many other countries, on the other hand, such arrangements are prohibited.(170)

Practice of law under the contingency fee system can, in my view, be fair and proper. For eighteen years, most of the marine cargo claims I handled were on the following contingency basis:

1) There was a downwards sliding scale from 33 1/3% to 25% on the amount recovered, depending on the amount claimed.

2) The arrangement was with marine insurance companies, who were expected to send all their claims good and bad.

3) The client, in every event, paid all out-of-pocket disbursements.

4) If we were unsuccessful, the client paid the taxable court costs (which, under the Canadian system, included some attorney's fees under a court tariff), as well as the taxable court costs of the winning side.

5) If we were successful, the losing party paid my taxable court costs.

6) If the case went to appeal, the work was usually done on a time basis.

For a lawyer to pay his expenses and his court costs, in my view, is "champerty", which is the buying of someone's claim for damages and his right of action. This I believe is improper and only leads to abuses.

The contingency fee is a standard feature of mass tort litigation in America. Where such litigation is pursued by way of class action (as is increasingly the case), the plaintiffs' attorneys in fact are entitled to two fees, one as a "class counsel", which is ordinarily limited by the court to a reasonable percentage of the total recovery,(171) and a second fee for representing the individual claimants in the class, which is generally not subject to judicial control and is often grossly disproportionate to the services actually rendered by the class counsel to those individuals. This "double dipping" can prove handsomely lucrative for the plaintiffs' bar.(172)

The contingency fee system was intended to work together with the "American Rule" against fee-shifting, in assisting poorer plaintiffs to gain access to justice. The contingency fee transferred the risk of loss from the plaintiff to his attorney, and was intended to encourage counsel to deploy best efforts on behalf of clients and to reject claims which they regarded as having little or no legal foundation. In other societies, these objectives are normally addressed by the legal aid system.

There can be no question that the contingency fee has tended to inflate the level of damages granted by American juries in tort cases, particularly punitive damages. It has also contributed to the maintenance of the "collateral source rule",(173) whereby a successful plaintiff is permitted to retain whatever he recovers from the tortfeasor, without any deduction being made in respect of sums he may receive from public or private sources (e.g. insurance).(174) It has also contributed to the high level of litigation in the United States, inasmuch as it encourages attorneys to take the risk of suing, even where their clients' cases are of uncertain solidity, in the hope of recovering windfall returns should they emerge triumphant from the courtroom.

The contingent fee nevertheless fits well with the American quest for social reform through "public interest law". As Fleming has pointed out:(175)

"Americans, preferring dispersed political power, look to the courts as much as to legislatures for implementation of changing social purposes; indeed, liberals and radicals have come to look principally to the courts rather than to legislatures for a receptive ear to their programmes. This tendency has put a premium on private law initiatives and on the contingent fee to fuel it."

The contingency fee is also intimately related to the corrective justice approach which characterizes the U.S. social system. It seems logical that the claimant's attorneys should benefit from the restitutionary reward which the claimant receives, when they have (literally) sued and laboured to make that recovery possible.

Contingency fees therefore have their advantages and disadvantages and are an integral part of the American legal system.

e) Discovery

American practices in respect of the "discovery" before trial of parties and witnesses, as well as documents and other evidence, constitute another major point of divergence between the mode of operation of the civil justice system in the United States and in most other developed countries, whether of civil law or common law tradition.

American discovery is uniquely liberal and has made defendants accountable, particularly industry giants. Discovery is a very useful legal tool which other nations could well adopt. Among its distinguishing features is the relatively insignificant role played by judges in the process, compared to the major role they play elsewhere.(176) The decisions on who is called for examination in U.S. discovery are made by lawyers, who also conduct the examination.(177) American discovery may extend to persons who are not parties to the suit,(178) although this feature is beginning to be adopted by other countries as well.(179)

Documents may also be discovered in the United States without a court order, on the simple demand of a party, who is no longer required to show "good cause" for the request.(180) American discovery, especially in respect of documents, can be extremely wide-ranging in scope. Discovery requests may include information not admissible in court, as well as claims and defences of third parties.(181) The information need not be described with specificity in the request.(182)

The benefits of American-style discovery are many. Discovery preserves evidence, reveals facts, aids in formulating issues and freezes testimony so as to prevent perjury. It may also reduce delays and save costs by inducing litigants to settle once they have had a chance to measure the strenth of their opponents' evidence.(183) More importantly, however, discovery has proven its worth in eliciting the truth in litigation. In the words of the U.S. Supreme Court in Hickman v. Taylor: "Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." (184)

The American practice of wide-ranging discovery has had a significant impact on substantive law, particularly as regards the "litigation explosion" of recent decades. Jack H. Friedenthal, a noted U.S. expert in civil procedure, has written:(185)

"Arguments regarding the scope of discovery typically have not dealt with the role discovery has played in the evolution of substantive law. It is clear, however, that over the years developments in areas such as products liability, employment discrimination, and consumer protection have been the result at least partly of broad-ranging discovery provisions. For example, lawyers would not have pushed in the courts and in the legislatures for expanded causes of action hinged on proof that defendants knew or should have known of a products danger, if such proof were normally unavailable. The ability of plaintiffs' attorneys to obtain a corporate defendant's records, to depose corporate employees, and to send searching interrogatories has had a substantial impact in particular areas of law, and is one important factor in the dramatic increase in cases filed."

Environmental and maritime law could well be added to Friedenthal's list. Discovery procedures under American rules were probably decisive in securing the victory of the plaintiffs in the marine pollution litigation resulting from the oil spill from the tanker AMOCO CADIZ off the coast of France in 1978.(186) Emmanuel du Pontavice, a noted French maritime jurist,(187) in conversation with the undersigned, observed that the truth would never have emerged had the case been tried in France under French rules of civil procedure.

No doubt, pre-trial discovery practices of American lawyers have given rise to criticism by non-Americans, including judges.(188) Other countries tend to regard certain aspects of U.S. discovery as excessive, and even as a threat to their sovereignty or vital interests.(189) Even within the U.S., discovery is sometimes termed intrusive, time-consuming and expensive.(190)

Much of the criticism of U.S. pre-trial discovery, especially by non-Americans, is itself not immune from attack, however. Often, it really springs from a more deep-seated hostility to other aspects of the American justice system (e.g. expansive concepts of U.S. jurisdiction, civil juries and their large damage awards, etc.).(191)

Broad discovery à l'américaine, assists in ascertaining all the facts in order that justice may be done, particularly where individuals or groups of individuals are confronted by the power and organization of big business and big government in products liability, consumer and environmental lawsuits. It also comports with the U.S. doctrine of due process, in ensuring that parties are not taken by surprise by their adversaries' evidence. It plays a vital role in the overall system of corrective, as opposed to distributive, civil justice which characterizes America. U.S. discovery is also favoured by plaintiffs and their counsel, both domestic and foreign, beause it helps them tremendously in preparing and prosecuting their actions.

U.S. discovery has had considerable success in prosecuting giant corporations, such as General Motors, where automobiles have been unsafe, and cigarette manufacturers, with their stonewalling on the dangerous nature of their products and the secret tests they had run. The dangers of breast implants is another example of the success of the American discovery process. America has led the world in forcing national and international manufacturers to face their responsibilities. This would not have been possible without the American legal system and the discovery process in particular.

f) Forum non conveniens

Many of the above-mentioned features of the U.S. civil justice system have proven attractive to foreign plaintiffs, especially in the last half-century. In Piper Aircraft Co. v. Reyno,(192) the U.S. Supreme Court observed that foreign plaintiffs were drawn to sue in the United States by five factors:

1) the American strict liability doctrine, available then in all but six of the fifty U.S. states;

2) the choice of fifty U.S. jurisdictions in which to sue, each of them having "its own set of malleable choice-of-law rules";

3) the availablility of civil jury trials (never possible in civilian countries and seldom granted even in the United Kingdom);

4) American contingent attorneys' fees and the fact that losing parties are not required to pay their successful opponents' attorneys' fees (i.e. the "American Rule") and

5) the availability of more extensive discovery in American than in foreign courts.

Paula W. Speck, an American observer, has mentioned another factor:(193)

"...in the years since World War II, the explosion of global communications, the increased presence of American business all over the world, and (some say) the aggressiveness of the plaintiffs' bar and the excessive generosity of the U.S. tort system have attracted a flood of plaintiffs to the U.S. courts."(emphasis added).

Lord Denning once noted in a similar vein: "As a moth is drawn to the light, so a litigant is drawn to the United States."(194)

The enthusiasm of foreigners about litigating in America is an indication of the strong appeal which American substantive and procedural law has around the world.(195) Unfortunately, this interest has spawned other problems, notably forum shopping and the resulting congestion of some U.S. courts with cases having little or no connection to the United States. These problems in turn explain how the doctrine of forum non conveniens has become a highly developed institution in American law.

Forum non conveniens permits a court to refuse to exercise its jurisdiction over a dispute (either by dismissing the suit or staying it conditionally) where an alternative forum more convenient to the parties exists, in which justice can better be done.(196) In Gulf Oil Corp. v. Gilbert,(197) the United States Supreme Court listed "private interest factors"(198) and "public interest factors"(199) which should govern the application of forum non conveniens in American courts.

Although the private and public interest factors of Gulf Oil have been reaffirmed repeatedly by the Supreme Court,(200) American courts have not always applied them systematically. In The Amoco Cadiz,(201) for example, where a major oil spill from a tanker in 1978 caused massive environmental damage to the French coast, the French plaintiffs took suit in the U.S. District Court for the Northern District of Illinois, Eastern Division (Chicago). The defendants initially invoked forum non conveniens,(202) but later withdrew their motion for transfer of the suit to France. Despite the almost complete absence of U.S. contacts and governmental interests, and the undoubtedly greater convenience and appropriateness of proceeding in France,(203) the litigation proceeded in the U.S., under American law, and the French plaintiffs (anxious to benefit from the generosity of American justice) eventually recovered $85.2 million in damages, (204) far more than they could have realized had the case been tried in France under the CLC Convention 1969, the properly applicable French law.(205)

In many contemporary cases, however, where forum non conveniens is validly invoked (and not subsequently abandoned) by the defendant, the private and public interest factors identified in Gulf Oil are applied by U.S. judges, in a highly principled fashion, to prevent forum shopping and prevent costly administrative congestion of American courts by claimants seeking to profit from the substantive and procedural benefits of American jurisdiction.(206)

On the other hand, and much to their credit, American courts remain open to foreign claimants where there is no suitable alternative forum,(207) or where "the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all"(208) or where there appear to be serious "political or legal obstacles to conducting litigation in the alternative forum".(209)

Certain U.S. states, however, by "open court statutes",(210) have excluded the application of forum non coveniens in some maritime cases. Louisiana, for example, precludes the application of the doctrine to claims filed under the Jones Act and the general maritime law.(211) The United States Supreme Court upheld this legislation in American Dredging Co. v. Miller,(212) on the ground that forum non conveniens was neither a characteristic feature of admiralty law nor a doctrine required for the proper harmony and uniformity of that law, but rather a purely procedural matter. This decision appears unfortunate, in that, as the dissenting justices pointed out, the majority judgment affects international comity and both international and interstate commerce, inviting forum shopping and disharmony.(213)

By comparison, forum non conveniens is applied universally in Canada(214) and operates on uniform principles in all common law provinces,(215) as well as in Québec civil law.(216) Forum non conveniens also applies in Canadian maritime law, unaffected by any provincial restrictions or exclusions.(217)

One American commentator has also noted that forum non conveniens analysis in Canada focuses on whether the plaintiff's chosen forum is appropriate on an objective basis, and is more concerned about convenience to the plaintiff than to the court(218) On the other hand, the U.S. doctrine of forum non conveniens features a greater acceptance of conditional dismissals than does the Canadian version of the exception.

4) Conclusion - the American legal system leans towards equity

The American legal system continues to embody noble legal principles of liberty and justice for all, although the specific rules and institutions of that system are, in some cases, markedly different from those of other industrialized Western democracies. There is a growing consciousness, however, that the litigation explosion, particularly in the realm of tort, of the last thirty years or so has highlighted some weaknesses in the United States legal system. Some of the resulting criticisms are strident (and perhaps exaggerated):(219)

"American lawyers can remain fat and happy, sweeping in the increasing tide of monetary benefits that come with the litigation explosion. We can continue to keep our John Q. Citizen hat in the closet, never wearing it to create any guilty conscience as to what we are doing to America, our businesses, and our citizens. We can also be as blinded as the blindfolded symbol of justice to the fact that our system of justice, our courts, and the legal profession have replaced the former confidence of the American citizenry in our system of justice with a cynicism that will, if uncorrected, result in the destruction of that institution."

There can be no doubt, however, that civil jury trials, high damage awards, punitive damages, the collateral benefits rule, contingency fees, the "American Rule", extensive pre-trial discovery, as well as the development of substantive law in respect of personal injury, pollution, products liability, medical malpractice and mass torts, have reflected a pro-recovery bent, and that the plaintiffs' bar has played an active role in the resulting "litigation explosion". Some remedial action may now be required to ensure that the American legal system continues to serve the high ideals which it intends to promote. But the basic structure of American civil justice, in both its substantive and procedural law aspects, continues to respond admirably to the demands of America's social system, in which corrective justice plays so prominent a part.

5) Advantages of the American legal system to America and the world

Whatever may be its structural shortcomings, the American legal system is among the most productive and inventive the world has ever seen. The courts have been daring in adapting the old principles inherited from the common law to the demands of twentieth-century North America, as well as in designing procedural rules and institutions to meet the demands of "Due Process" as understood under the American Constitution. These principles and procedures have both accommodated and fostered the "litigation explosion", which has in turn served to refine new doctrines and techniques, while also providing high levels of compensation for litigants and more work for their attorneys. It has thus put America on the cutting edge of judicial thinking in many fields of law.

And the rest of the world would be remiss, if it did not recognize that it is the American corrective legal system which has done most to protect us all against abuses of national and international corporate giants, particularly in cases where there is no effective recourse outside the U.S.(220) Indeed, the appeal of the American legal system may be measured by the great popularity of suing and arbitrating in the U.S. among non-American parties. Each year, many foreign litigants benefit from the jurisdiction of U.S. courts and/or arbitral tribunals, thereby availing themselves of both the substantive and procedural advantages of the American system, as well as its well-known favouring of the man-in-the-street litigant.

The "pro-recovery" tendency of the United States legal system, so clearly discernible in domains such as strict liability, products liability, medical negligence law, mass torts and environmental protection, has also begun to make itself felt in the conflict of laws, in both theory and practice. The movement towards "equity analysis" in U.S. conflicts theory has been outlined above. The following section will offer examples of what may be termed the "equitable orientation" of American conflicts law and of decisions emanating from American federal and state courts.

VII. Examples of the Orientation of American Conflicts Law towards Equity

1) Introduction

The American conflicts revolution has occurred against the background of the litigation explosion of the American legal system generally. That American conflicts law should now be stressing the interests, not so much of governments, but of individual citizens confronting the powers of large corporations and large governments; that it should be propounding theories of "better" and "best" laws; and that it should be searching for a new ius gentium of multistate justice, is all perfectly understandable, giving expression in U.S. conflicts law to the recent evolution of American tort law in particular, and the American legal system generally, in handling an unprecedented volume of cases and favouring recovery by plaintiffs.

The U.S. preoccupation with compensating victims of torts according to the demands of corrective justice is evident in many of the private international law decisions rendered annually by American judges, particularly in the state courts. Some of these decisions are open to criticism on the ground that, explicitly or implicitly, they seem to make equity the paramount concern, permitting recovery of damages by the injured party, even where other values and principles which have traditionally been applied in the conflict of laws would dictate a different outcome. On the whole, however, contemporary U.S. conflicts decisions demonstrate an energetic quest by the American bench for fairness (not always favouring recovery), coupled with an increasing concern for solid, yet flexible, principles, in addressing the challenges posed by the conflict of laws in today's global context.

2) Products liability

a) Use of public policy

In Alexander v. General Motors Corp.,(221) a Georgia resident, having purchased in Georgia a car manufactured by the defendant, was injured in an accident while driving in Virginia. He sued the defendant in Georgia, alleging that the car's driver's seat was defective, causing him to be ejected from the vehicle. Georgia law imposed strict liability on manufacturers, whereas Virginia continued to apply negligence principles and defences in products liability cases. Reversing the trial judge and the Georgia Court of Appeals,(222) the Georgia Supreme Court held that although in general the lex loci delicti governed tort conflicts in Georgia, the application of Virginia law in this case would be "antithetical" or "contrary" to Georgia's public policy.(223)

Invoking the public policy of the forum appears inappropriate in this decision, because that traditional exception to the implementation of an otherwise applicable foreign law normally operates only where the foreign law violates "...some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal".(224) It is difficult to agree that Virginia's reliance on classical negligence law in products liability could be so essentially repugnant to the fundamental values of Georgia as to warrant the circumventing of Georgia's usual lex loci delicti rule. The decision also appears to disregard any distinction between public policy in the domestic context and public policy as understood in the conflict of laws.

Perhaps the true ratio decidendi was expressed in the Court's remark that Georgia's strict liability law was "...intended to protect those who are injured by defective products placed in the stream of commerce in this state".(225) Compensating the victim indeed appears to have been the predominant factor in the judgment.

The majority of U.S. decisions, however, take a more traditional and restrictive view of the public policy exception in choice of law, reserving it for cases of true repugnancy of the foreign law to essential American legal principles. Among such judgments is Schultz v. Boy Scouts of America, Inc., where the New York Court of Appeals held that : "..public policy is not measured by individual notions of expediency and fairness or by a showing that the foreign law is unreasonable or unwise."(226)

b) Statutes of repose

Statutes of repose have also been the object of various U.S. decisions on products liability conflicts. These statutes shield manufacturers from suit after a fixed number of years from the marketing of the product, and regardless of when the injury occurs.

The Sixth Circuit, in Mahne v. Ford Motor Co.,(227) had to decide whether a Florida statute of repose barred the action, instituted in Michigan by a Florida plaintiff against the defendant automobile manufacturer whose principal place of business was located in Michigan. It was held:(228)

"[t]he Florida statute of repose... was presumably designed to protect Florida manufacturers.... Plainly, the Florida statute does not benefit plaintiff, a Florida resident, under the circumstances of this case since the statute would bar her action against a nonresident defendant whose own state law, the law of Michigan, affords no similar protection for a manufacturer... Further, defendants cannot argue that applying Michigan law would defeat their expectations since the individual defendants reside there and defending Ford Motor Company has its headquarters in that state.... Thus, there is simply no reason to extend the benefits of the Florida statute of repose to the Michigan defendants. Since Florida has no interest in having its statute of repose applied, Michigan law applies without regard to the nature or quality of Michigan's interest."

The decision in this case seems to utilize the terminology of governmental interest analysis so as to favour recovery by the plaintiff.

In the very similar subsequent case of Farrell v. Ford Motor Co.,(229) on the other hand, the Michigan Court of Appeals applied North Carolina's statute of repose to bar a products liability/wrongful death action against the defendant Michigan car manufacturer, arising out of the death of a North Carolina resident in that state. The Court noted that the manufacturer had extensive business operations in North Carolina and that North Carolina was also the residence of the decedent and the place of the fatality. Michigan (where the action would have been timely), being merely Ford's principal place of business and the forum, was held to have comparatively little interest in granting the plaintiffs more rights to recover than the victim could have enjoyed under the law of her own state. The decision also states:(230)

"North Carolina has an obvious and substantial interest in shielding Ford from open-ended products liability claims. Ford unquestionably generates substantial commerce within the State of North Carolina.... It is obviously in North Carolina's economic interest to encourage manufacturers, such as Ford, to do business in North Carolina.... [T]he obvious purpose behind the statute of repose is to 'protect defendants from product liability claims after a period of time has elapsed from the date of delivery, and to this extent, to reduce their exposure to such claims.' We simply fail to see how this policy is rendered any less compelling solely by virtue of the fact that the defendant does not have a manufacturing plant located in the State of North Carolina."

This decision, although couched in the rhetoric of governmental interests and state policies, seems to strive to give effect to the law of the state having the closest and most real connection with the parties and the fatality. In so doing deciding, the Court did not hesitate to deny recovery, despite its sympathy for the victim. The same approach was applied more recently in Hilburn v. General Motors Corp.,(231) another Michigan decision which, in applying the statute of repose of North Carolina, expressly followed Farrell, rather than Mahne.(232)

Hilburn was rejected, however, by the Court of Appeal of California in Davis v. Shiley Inc.(233) An Oregon resident who had undergone open heart surgery in Oregon to explant a heart valve which had been recalled sued the California manufacturer of the device in California for fraud. The action would have been time-barred in Oregon under that state's statute of repose, but the California limitation period had not yet expired. The Court of Appeal of California, after holding that the policy behind California's statute of limitations was to protect California defendants and courts from stale claims, decided that only California had an interest in having its statute of limitations applied to the case, because it was the residence of the only defendant and the forum state.(234) Oregon, on the contrary, was held to lack any interest in having its statute of repose applied, because there was no Oregon defendant and no Oregon forum. The Court added that the Michigan court in Hilburn had failed to apply governmental interest analysis, because it had not considered the policies underlying the competing laws of Michigan and North Carolina in its choice of law reasoning.(235)

In Gantes v. Kason Corporation,(236) the conflict was between a Georgia statute of repose precluding suit after ten years from the manufacture of the machine which caused the death and New Jersey's two-year statute of limitations. The action was filed within New Jersey's limitation period, but outside Georgia's repose period. The plaintiffs' domicile in Georgia was held not to implicate the policies of that state's statute of repose. Moreover the machine had been manufactured in New Jersey and placed into the stream of commerce from that state, which gave New Jersey: "a strong interest in encouraging the manufacture and distribution of safe products for the public and, conversely, in deterring the manufacture and distribution of unsafe products within the state."(237)

The Court described the policy of the New Jersey statute of limitations as permeated by "flexible, equitable considerations based on notions of fairness to the parties and the justice in allowing claims to be resolved on their merits."(238) The decision also held that:(239)

"A governmental interest based on a policy of deterrence that seeks to discourage domestic manufacturers from the manufacture and distribution of unsafe products through the allowance of a products-liability action is not unnecessarily burdensome nor is it discriminatory or baseless."

Davis and (even more clearly) Mahne and Gantes appear to be decisions influenced by the plight of the hapless victims of negligent manufacturers. The application of governmental interest analysis assisted the plaintiffs in securing compensation, which was probably the equitable solution. The decisions are a good illustration of American corrective justice in action in the domain of the conflict of laws. On the other hand, Farrell and Hilburn show that, in virtually identical circumstances, other U.S. courts, even applying similar choice of law theories of interests and contacts, can arrive at conclusions unconducive to the plaintiff's recovery. The state of American law on conflicts involving statutes of repose thus remains uncertain.

By comparison, a Canadian court deciding a similar case arsing in Canada, under the Canadian conflict rule laid down by the Supreme Court of Canada in Tolofson v. Jensen,(240) would almost certainly apply the lex loci delicti, including the time limitation of the province where the tort occurred, regardless of the resulting outcome.(241) Such an approach would not assist the plaintiffs, but would promote greater certainty of law than is presently found in some American conflicts cases. On the other hand, the need to implement corrective justice is not as urgent a matter in Canada as in the United States, because Canada, with its stronger social security net, affords injured parties more opportunities for indemnification under legislation reflecting a distributive justice model.

It is noteworthy that among the major developments in U.S. conflict of laws in 1997 was the abandonment by three more U.S. state supreme courts (those of Michigan, Rhode Island and West Virginia) of the traditional position that statutes of limitation are procedural.(242) Six other states (Arkansas, Colorado, Montana, North Dakota, Oregon and Washington) have enacted the Uniform Conflict of Laws - Limitation Act.(243) Eight other states have done so by other legislation or judicial decisions in recent years.(244)

c) Strict liability conflicts

Equitable considerations also influence products liability conflicts decisions where one of the competing U.S. states has a strict liability rule, and another does not. In Magnant v. Medtronic, Inc.,(245) for example, a Michigan plaintiff took suit against a Minnesota defendant in Michigan when a heart pacemaker implanted in Minnesota damaged his lungs. Minnesota law imposed strict liability on the manufacturer, while that of Michigan did not. Examining the comparative interests of the two states, it was held:(246)

"[t]he interest in protecting citizens does not weigh in favor of Michigan law... because [plaintiff] would receive more rights under Minnesota law than under Michigan law.... Minnesota's interests provide a sound reason for displacing Michigan law in this case."

The decision clearly interprets interest analysis in terms of equity analysis and seems to make compensating the victim the primary objective subtending the choice of law process. A Canadian court would most likely have applied Minnesota law as well in this case, but on the basis of lex loci delicti, without its choice of law decision being controlled by any overriding concern for facilitating recovery.

d) Limitation of liability

Products liability litigation in the United States sometimes encounters conflicts in which one of the jurisdictions concerned limits damages (e.g. for personal injury or wrongful death), while another permits recovery of proven damages without limitation. In MacDonald v. General Motors,(247) for example, a traffic accident in Tennessee claimed the life of a student from North Dakota, whose parents subsequently sued GM (a Michigan corporation) in Tennessee after having settled with other (Kansas) defendants, claiming that the van in question had a brake defect which caused the tragedy. The van had been purchased, garaged and maintained in Kansas, the trip had begun in that state and was scheduled to end there.

The Sixth Circuit decided that the contacts of Tennessee and Michigan were inconsequential in the case. As between Kansas, the "centre of the relationship" between the parties (where damages for wrongful death were subject to a $100,000 limitation) and North Dakota, the domicile of the decedent and the plaintiff parents (whose law imposed no such limitation), the Court held that North Dakota had the most significant relationship to the measure of damages under the Restatement Second, section 145 (the rule on tort conflicts). It was also held that Kansas' interest was not as great as North Dakota's because "applying the Kansas statute would frustrate North Dakota's policy of fully compensating its domiciliaries for their injuries."(248) In this case, all the defendants who were Kansas residents had settled, so that Kansas' policy of limiting recovery by plaintiffs would not be affected by the jury's damage calculations, and there was no more compelling a reason to protect GM from an excessive condemnation by applying Kansas' limitation than there was to effectuate North Dakota's policy by allowing unlimited recovery against GM, because the car manufacturer did business in both states.

The decision thus analyses the connecting factors and competing state policies in a manner which clearly supports application of the law of the jurisdiction favouring the plaintiffs' interests in maximizing their entitlement to damages.

3) Personal injury

Mexican tort law is generally easier on defendants than is the tort law of most American states. With increased travel by Americans to Mexico for business or pleasure in recent years, there has been a corresponding increase in the number of lawsuits relating to personal injuries sustained or caused in Mexico by Americans. Inevitably, the choice of law question has emerged in the resulting U.S. litigation. Frequently, the ensuing decisions, couched in the terminology of the Restatement Second and/or interest analysis, seem to reflect the primary concern for ensuring that the plaintiff, as the presumed "underdog", will be entitled to recovery (according to the dictates of American corrective justice).

In Esser v. McEntyre,(249) for example, an Illinois resident slipped and fell in a hotel villa in Mexico, as a result of the alleged negligence of the defendant, another Illinois vacationer at the same resort. Mexican law, unlike the law of Illinois, would not permit the injured victim to obtain compensation under the circumstances. The Supreme Court of Illinois held that, notwithstanding the fact that both the tort and the injury had occurred in Mexico, Illinois had a more significant relationship than Mexico to the parties, because they were both domiciled in Illinois and their relationship was centered there. Turning to the interests of the two jurisdictions, the Court observed:(250)

"Having provided a legal means for a plaintiff to recover for injuries caused by a defendant's culpable conduct, Illinois has a strong interest in providing that remedy in disputes between Illinois residents. That policy will be circumvented if Mexican law applies since, under Mexican law, plaintiff has no remedy for her claim against defendant...."

Illinois' interest in providing recovery to its resident was thus held to outweigh Mexico's interest in limiting tort recovery, even in respect a tort and an injury occurring on Mexican territory. It is clear that sympathy for the local victim in quest of indemnification was very much a factor in the minds of the Supreme Court judges of Illinois in both their "most significant relationship" and governmental interest analyses.

In a similar case which arose in Canada,(251) where the plaintiff, an Ontario resident, was injured through the fault of the defendant, another Ontarian, in a motorcycle accident in Minnesota, the Ontario Court of Appeal decided that the usual Canadian conflict rule for tort (lex loci delicti), in this particular case, would cause an injustice, in view of the common domicile of the parties in Ontario, where the motorcycle was also registered and insured. Ontario law was therefore applied, on the basis that Ontario had the most real and substantial connection with the parties and the transaction. The Court also noted that the application of Ontario law would permit the plaintiffs to recover certain benefits under that province's Family Law Act(252) which would not have been available to them had Minnesota law governed the case.

In Bauer v. Club Med Sales, Inc.,(253) the plaintiffs were American relatives of a deceased Californian, who had been killed in a fall from a staircase in the defendant's hotel in Mexico. The plaintiffs were seeking damages for wrongful death. Mexican law was more favourable than Californian law to the defendant, a U.S. corporation. The Northern District of California decided, by reference to California's comparative impairment theory, that : "a jurisdiction's only interest in having its damages limitation rules applied is to protect its resident defendants from excessive financial burdens."(254) In this case, Mexico was held to have no such interest, because the defendant corporation was American, as were the decedent and the plaintiffs. Nor would the application of California law impair Mexico's interest in fostering tourism.

Conversely, however, in Vizcarra v. Roldan,(255) where the defendant was also an American (Texas) corporation operating in Mexico, the Texas Court of Appeals decided that Mexico had an interest in applying its law limiting recovery, because the defendant had a warehouse and did business in Mexico.(256) The one major difference in this case, compared to Bauer, is that the victim was a Mexican. The commentator is tempted to wonder whether the nationality of the plaintiff is perhaps a factor influencing some U.S. courts to apply interest analysis more liberally in favour of American than foreign claimants. The decision is easier to justify on the basis of the most significant relationship being with Mexico, in the light of the contacts, or connecting factors.

A Canadian court, in an analogous case (Canadian victims/Canadian corporations) might well have applied the law of Mexico in both cases, on the ground of lex loci delicti, without regard to which party was thus favoured. It is doubtful that, in such a hypothetical case, the mere fact of incorporation of the defendant companies in Canada would have constituted sufficient grounds to convince a Canadian judge to displace the normally applicable law of the place of the delict, in view of the Tolofson doctrine,(257) even given the Canadian residence of the plaintiffs.

4) Automobile "guest statutes"

a) Introduction

The "guest statutes" formerly in force in many U.S. states and some Canadian provinces had proven to be a staple of American conflicts law over the last forty years. Guest statutes preclude a passenger who rides free of charge from suing the driver of the car for injuries sustained during the ride, unless the driver's misconduct has been wilful or wanton or grossly negligent. Today, only one state of the Union, Alabama, still has a guest statute in force. In consequence, this area of U.S. conflicts law is likely to become less significant in the future. It nevertheless still merits passing attention, if only because it has afforded courts the opportunity to apply a variety of new theories emerging from the "American conflicts revolution".

b) Guest statutes and the most significant relationship

Babcock v. Jackson, (258) a decision of the New York Court of Appeals, involved a one-car accident in Ontario (which then had a guest statute) in which a New York passenger sustained injury in a car driven by another New Yorker. Dispensing with the traditional (single-principle) lex loci delicti rule, Judge Fuld found that the "grouping of contacts" in the case (the common New York domicile of the parties, the registration and insurance of the car there and the fact that the trip began and was planned to end in New York) favoured application of New York law. In effect, the decision was an early application of the "most significant relationship" rule for tort conflicts found in the Rule 145 of Restatement Second. The judgment also demonstrated an evident concern for the victim's recovery, Judge Fuld holding:(259)

"Justice, fairness and 'the best practical result' may best be achieved by giving controlling effect of the law of the jurisdiction which, because of its relationship or contact with the occurrence of the parties, has the greatest concern with the specific issue raised in the litigation."

Subsequent New York decisions, such as Dym v. Gordon,(260) Macey v. Robicki(261) and Tooker v. Lopez(262) contain references to the "interests" of the different jurisdictions involved. In Dym v. Gordon, for example, the Court decided:

"Colorado has an interest in seeing that the negligent defendants' assets are not dissipated in order that the persons in the car of the blameless driver will not have their right to recovery diminished by the present suit."

Once again, the quest for securing recovery by the "blameless" victims is very evident in this invocation of governmental interests.

c) Guest statutes and the lex fori

It was also in a guest-passenger case that one of the strongest judicial reaffirmations of the lex fori conflicts rule was made. In Foster v. Leggett,(263) involving the death of a Kentucky passenger in Ohio in a car driven by a domiciliary of Ohio (then a guest-statute state), the Kentucky Court of Appeals found significant Kentucky contacts with the parties and concluded that forum law should apply, even where forum contacts are not the most significant ones.(264) The decision then asserted that: (265)

"When the Court has jurisdiction of the parties its primary responsibility is to follow its own substantive law. The basic law is the law of the forum which should not be displaced without valid reason."

No consideration was given to the interest of Ohio in protecting its domiciliary (the defendant) via the guest statute in an accident which happened on its soil.(266) The decision is really an example of the lex fori homeward trend, of which Ehrenzweig might well have approved, an orientation which, like interest analysis, frequently fosters suits by plaintiffs in their home states, and also, incidentally, facilitates their recovery of damages.

d) Guest statutes and the "better law"

The "better law" analysis favoured by Leflar's five choice-influencing considerations has also been employed to promote the interests of plaintiffs in guest-statute litigation. Today, only Alabama still has a "guest statute", but much of the case law which the "better law" theory was applied arose out of the guest statutes formerly in force in other U.S. jurisdictions. In Conklin v. Horner,(267) for example, both the plaintiff passengers and the defendant driver resided in Illinois, then a guest statute state. The trip began, and was intended to end, in Illinois, where the car was also garaged, maintained and insured. The Supreme Court of Wisconsin nevertheless held that Wisconsin law, which determined liability on ordinary negligence principles, should apply, invoking primarily Wisconsin's interest in securing compensation for victims "...whether they be residents of this state or whether they come from another jurisdiction"(268), and also referring to Leflar's "better law" consideration. On the latter point, the majority held:(269)

"...the guest statutes are anachronistic vestiges of the early days of the development of the law-of-enterprise liability and do not reflect present day socio-economic conditions.... We also conclude that such a law is bad law, for its application in those states where a legislature has put a guest law in effect results in a haven--a sanctuary--for those who wrongfully cause harm with impunity. We see only legal retrogression in extending the pernicious effects of such a law to Wisconsin."

A similar decision was rendered in Milkovich v. Saari,(270) which involved Ontario''s guest statute, where Todd J., speaking for the majority of the Minnesota Court of Appeals, stated:(271)

"...we are concerned that our courts not be called upon to determine issues under rules which, however accepted they may be in other states, are inconsistent with our own concept of fairness and equity."

e) The Neumeier rules

In an effort to try to bring consistency to guest statute conflict cases, the New York Court of Appeals (per Chief Judge Fuld), in Neumeier v. Kuehner,(272) formulated three basic rules(273) which continue to be applied in automobile conflicts in that state.

In general, the "Neumeier rules", based as they are upon a distinction between "loss allocation" rules and "conduct regulating" rules, have emphasized the most real and substantial connection test (the basic contacts being either the common domicile of the parties or the lex loci delicti).(274) The rules have contributed to greater certainty and predictability of automobile conflicts decisions, while also decreasing the incidence of "forum shopping".(275) Neumeier has also been applied in conflicts cases involving problems other than guest statutes.(276) It may be seen as a laudable effort to depart from the kind of "ad hoc" approach which tends to favour equity at the expense of principle.

The Neumeier rules, however, can, of course, be applied so as to favour the plaintiff in some situations. An example is Armstead v. National Railroad Passenger Corp.,(277) where a New York domiciliary fell on ice in Virginia on property belonging to a District of Columbia domiciliary. The Southern District of New York, applying New York conflicts rules in this diversity case, characterized the conflict as one involving loss distribution rules, rather than conduct-regulating rules, thus rendering the third Neumeier rule applicable. As a result, the lex loci delicti (Virginia law) would ordinarily have been controlling. But Virginia law still included the contributory negligence bar to recovery by a partly negligent plaintiff. The Court decided to apply the "escape hatch" in the third Neumeier rule, citing New York's "obvious interest in enforcing its determination that its own domiciliary whose own negligence is only partially responsible for her injuries should not go uncompensated."(278)

f) Conclusion - guest statute conflicts

In general, it appears that, with the exception of a serious effort by New York to enshrine, in the Neumeier rules, norms combining certainty and predictability with flexibility, there is still a tendency in many states to seek among the various American choice of law theories some way of securing recovery for the plaintiff passenger, in guest statute conflicts.(279) Once again, such a propensity to enable victims to obtain generous compensation reflects the strong preoccupation of the American social and legal systems with making corrective justice a reality for Americans injured by the negligence of others, whether in their home states, neighbouring states or other countries.

Canadian law, by comparison, implementing the law of the place of the tort/delict in almost all cases, except where very powerful connections of the parties and the events to another jurisdiction would make the lex loci delicti fundamentally unjust, seems more consistent and predictable, if also somewhat less generous to the injured and deceased victims.

Because Alabama is now the sole surviving "guest statute state" in the United States, however, this type of conflict of laws will increasingly be a rarity in U.S. private international law.

5) Environmental pollution insurance

The search for equity is also evident in U.S. conflict of laws decisions relating to insurance coverage for pollution risks. Gilbert Spruance Co. v. Pennsylvania Manufacturers' Association Ins. Co.(280) involved a comprehensive general liability insurance policy issued by a Pennsylvania insurer, covering the operations of a Pennsylvania paint factory, waste from which was deposited in New Jersey. The policy contained an exclusion for pollution damage, subject to an exception permitting coverage where that damage was "sudden and accidental". Under Pennsylvania law, this exception would have been ineffective, because the discharge of contaminants had occurred gradually. Under New Jersey law, however, even gradually discharged pollution was interpreted as "sudden and accidental", thus permitting coverage for the multiple toxic claims filed against the plaintiff insured. The Supreme Court of New Jersey applied the Restatement Second, section 193 (calling for the law of the principal location of the insured risk, unless another state had a more significant relationship to the transaction and the parties according to the principles of section 6). New Jersey was held to be the state of the "dominant significant relationship",(281) considering, inter alia, New Jersey's "urgent concern for the health and safety of [its] citizens"(282) and its interest in "securing financial resources both to remediate New Jersey's toxic-waste sites and to compensate victims of New Jersey pollution".(283)

In General Ceramics Inc. v. Firemen's Fund Ins. Co.,(284) the reverse situation arose: the pollution was generated in New Jersey by a New Jersey insured, and the disposal site was located in Pennsylvania. Again the issue was the scope of the "sudden and accidental" exception to the exclusion for pollution damages. Pennsylvania law would have interpreted the exception literally, so as to preclude coverage for contamination risks which manifested themselves only gradually, whereas tne New Jersey interpretation of the exception as applicable even to gradual pollution would have ensured coverage. The Third Circuit refused to see Gilbert Spruance as having established a "bright line rule" calling for the law of the location of the disposal site (Pennsylvania). Rather, a more detailed analysis of the policies and interests of the two states concerned was undertaken, as indeed Gilbert Spruance had recommended. The analysis of New Jersey's policy is especially telling as regards underlying equitable concerns:(285)

"New Jersey thus interprets 'sudden and accidental' in a pro-coverage fashion out of concern for insureds who purchase coverage based on the state's regulatory approval of the standard CGL [comprehensive general liability] policies. The underlying policies prompting this interpretation are protection of the New Jersey insured (and of New Jersey insurance contract negotiation) and promotion of honesty before the state's regulatory agencies. See Johnson v. Matthey, 593 A.2d [367] at 370 [N.J. Super. A.D. 1991] (describing New Jersey's interest in applying its insurance coverage law to environmental damages as 'assuring that casualty insurance companies fairly recognize the legal liabilities of their insureds.')"

New Jersey's "pro-coverage" law was applied, because the insured was a New Jersey corporation, with its main plant and headquarters there, and because the insurance policy had been negotiated and paid for in that state. Moreover, there were no Pennsylvania parties, so that the policies of that state were not really impaired by the application of New Jersey law. Nevertheless, the location of the disposal site, which had been substanially determinative in the choice of New Jersey law in Gilbert Spruance, was not a bar to the application of the same law in General Ceramics where the disposal occurred in Pennsylvania. Similarly, the location of the insurer and its place of operations, which had been treated as of lesser importance in Gilbert Spruance, were considered important contacts favouring New Jersey law in General Ceramics.

These two decisions demonstrate how U.S. courts, using governmental interest analysis, and selecting the connecting factors, can find ways to protect the interests of the insured in environmental insurance conflicts.(286)

6) Workers' compensation conflicts

Workers' compensation statutes in various American jurisdictions have certain differences which can spawn conflicts of law. One of the best-known recent examples is Cooney v. Osgood Machinery, Inc.(287) Cooney, a Missouri domiciliary, was injured there by a machine belonging to his Missouri employer (Mueller). The machine had been manufactured in New York and sold by the defendant Osgood, a New York sales agent, to a Buffalo company which later sold it to Mueller. Cooney was compensated for his injuries by Mueller under Missouri's workers' compensation law. He then sued Osgood in tort in New York, and Osgood took a third party suit for contribution against the manufacturer of the machine and Mueller. Under Missouri law, such an action for contribution was prohibited, because Mueller, as employer, had paid workers' compensation to Cooney. New York law at the time permitted such an action, however.(288)

The New York Court of Appeals upheld Missouri law and dismissed the third party action against Mueller, invoking the third Neumeier rule(289) providing for the lex loci delicti, as well as interest analysis. In an important footnote, Chief Justice Kaye stated:(290)

"New York law permitting contribution against an employer is clearly a minority view.... A result that might impose New York law on the carefully structured workers' compensation schemes of other states--especially when the accident occurred there--is undesirable."

Professor Juenger expressed his view that the footnote :(291) "... holds forth the promise of a distinct improvement of New York conflicts law... it relies on a teleological consideration..., namely an assessment of the competing substantive rules' intrinsic quality." The clear employment "better law" terminology points up an equity-oriented component of the Cooney decision.(292)

VIII. Conclusions

This article has had a number of objectives. It has identified five major approaches to conflicts of law, being a) single concepts, such as interest analysis; b) multiple numbered rules, as in the Restatements; c) the general writings of the authors; d) national laws and international conventions; and e) conflict methodologies. The article has focused on how the first three approaches have affected the general evolution of American theories of private international law since Joseph Story. Louisiana, alone among the fifty U.S. states, has codified its conflict rules, whilst there is no general methodololgy in American conflicts theory to solve conflict problems.

The article then recalled the creative and dynamic developments in conflicts thinking which created the "American conflicts revolution" in the early and mid-twentieth century, and which continue to challenge scholarly discourse in this area of the law, not only in North America, but throughout the world. The world is indeed indebted to America for these new and exciting ideas.

At this point, the article has tried to situate American conflict theory within the context of American society, including both its social system and its legal system. The social system places a strong emphasis on corrective, as opposed to distributive, justice, in the Aristotelian sense. The legal system (differing in many ways from that of other modern nations) features a host of substantive rules and procedural mechanisms which have both spawned and sustained the well-known "litigation explosion" in U.S. tort law since the end of World War II. This explosion, although criticised, has, amongst other achievements, protected consumers and individuals, not only in America, but throughout the world, against defective products, attacks on the environment and mass torts in general.

Finally, the article has attempted to analyse a random sampling of recent American conflict of laws decisions, where the American social and legal systems have engendered a "pro-recovery bent" of tort law (or, as it might be better described, the "equitable bent of tort law") visible in the judgments of U.S. state and federal courts.

It is clear that various U.S. conflicts theories inherited from the "American conflicts revolution" (principally governmental interest analysis, contacts analysis and comparative impairment) have been and are being used skilfully by the American courts, often with a quite evident concern for aiding plaintiffs in securing compensation for their injuries. There appears to be a growing trend towards turning "interest analysis" into "equity analysis" in such spheres as products liability, personal injury, environmental law, workers' compensation, etc. The trend both reflects and reinforces the emerging American theories of "better" and "best" law and "multistate justice", where equity is increasingly haled as the predominant, if not the sole, criterion of private international law decision-making.

From the standpoint of a Canadian, U.S. conflicts thinking is dazzling, if sometimes bewildering. Although Canadian conflict rules take some account of fairness, "equity analysis" is rarely, if ever, considered.(293) Nevertheless, Canadians could well profit from greater familiaritywith the dynamic conflicts thinking and practice of the United States. And both America and Canada could consider that it is perhaps time for federal statutes on conflicts of law.


Prof. William Tetley

Faculty of Law, McGill University

Montreal, Québec, Canada

Email: william [dot] tetley [at] mcgill [dot] ca

Website: www.mcgill.ca/maritimelaw/


* Professor of Law, McGill University; Counsel to Langlois, Gaudreau, O'Connor of Montreal. The author acknowledges with thanks the assistance of Robert C. Wilkins, B.A., B.C.L., in the preparation and correction of this article.


� The author acknowledges with thanks the assistance of Robert C. Wilkins, B.A., B.C.L., in the preparation and correction of this article.


1 See, e.g., Paul-André Crépeau, "De la responsabilité civile extra-contractuelle en droit international privé québecois" (1961) 39 Can. Bar. Rev. 3, criticizing the application to Québec of the common law conflicts rule of double actionability pursuant to the decision of the Supreme Court of Canada in O'Connor v. Wray [1930] S.C.R. 231, [1930] 2 D.L.R. 899.


2 For an excellent overview of the history of conflict of laws theory in the United States, see Bruce Wardhaugh, "From Natural Law to Legal Realism: Legal Philosophy, Legal Theory, and the Development of American Conflict of Laws since 1830" (1989) 41 Maine L. Rev. 307. See also Friedrich Juenger, Choice of Law and Multistate Justice, Martimus Nijhoff, Dordrecht, 1993 at pp. 6-46.


3 For excellent brief histories of private international law in Western society, see Cheshire and North's Private International Law, (P.M North & J.J. Fawcett, eds.), 12 Ed., Butterworths, London, 1992; H. Batiffol & P. Lagarde, Droit international privé, 8 Ed., vol . I, Librairie Générale, Paris, 1993 at Nos. 8-18, pp. 17-31. For an American perspective, see E.F. Scoles & P. Hay, Conflict of Laws, 2 Ed., West, St. Paul, Minn., 1992 at p. 4 et seq. See also F.K. Juenger, Choice of Law and Multistate Justice, Martinus Nijhoff, Dordrecht, 1993 at pp. 6-46.


4 See generally W. Tetley, International Conflict of Laws, Common, Civil and Maritime, Blais, Montreal, 1994 at pp. 7-34 (hereinafter cited as "Tetley, International Conflict, 1994 ").


5 Statutists sought solutions to conflicts problems which arose in the multiplicity of small principalities then abounding in Europe, in local laws, or "statutes", which were either real, personal or mixed, according to their object, and each of which followed different rules. See Cheshire and North's Private International Law, supra, note 3, at pp. 17-21; Batiffol & Lagarde, supra, note 3 at Nos. 15-17, pp. 15-18; Tetley, International Conflict, 1994 at p. 8.


6 The principle of law of the citizen was enshrined in the French Civil Code of 1804, art. 3, third para. of which subjected the status and capacity of all French citizens to French law, even where they resided in foreign countries. The national law was also advocated as a general principle by Pasquale Mancini in the latter part of the nineteenth century and in maritime law was paralleled by the predominant role assigned, especially since the nineteenth century, to the law of the ship's flag as a single principle in maritime conflicts. See Tetley, International Conflict, 1994 at p. 8.


7 (L. Collins, ed.), 12 Ed., Sweet & Maxwell, London, 1993. This major reference work was first published in 1896 by A.V. Dicey under the title A Digest of the Law of England with Reference to the Conflict of Laws, 1 Ed., Stevens, London, 1896, and remained unchanged until the present title was substituted in the 6th edition of 1949. The work remains a compilation of conflict of laws rules distilled principally from English and British Commonwealth case law, although the 12th edition has been amended to take account of the coming into force in the United Kingdom in 1991 of the Rome Convention on the Law Applicable to Contractual Obligations, adopted at Rome, June 19, 1980 (EEC 80/934; O.J.E.C., October 10, 1980, No. L.266/1). See the text of the Rome Convention 1980 reproduced, with a brief commentary, in Tetley, International Conflict, 1994 at pp. 1032-1048.


8 See, e.g. Dicey and Morris on the Conflict of Laws, 12 Ed., 1993, supra, note 7, where Rule 17, providing that all matters of procedure are governed by the lex fori, is then qualified by pages of exceptions, comments and explanatory notes.


9 Outside the United States, some of the best-known texts in this category would include Cheshire and North's Private International Law, supra, note 3; J.J. Fawcett, Declining Jurisdiction in Private International Law, Clarendon Press, Oxford, 1995; J.J. Fawcett & P. Torremans, Intellectual Property and Private Internaitonal Law, Clarendon Press, Oxford, 1998; Lawrence Collins, European Community Law in the United Kingdom, 5 Ed., Butterworths, London; Lawrence Collins, The Civil Jurisdiction and Judgments Act 1982, Butterworths, London, 1983; J.H.C. Morris, The Conflict of Laws (J.D. McLean, ed.), 4 Ed., Butterworths, London, 1993 (England); H. Batiffol & P. Lagarde, Droit international privé, 7 Ed., 2 vols., Librairie Générale, Paris, 1981-1983 and P. Mayer, Droit international privé, 4 Ed., Montchrestien, Paris, 1991 (France); P.-G. Castel, Canadian Conflict of Laws, 4 Ed., Butterworths, Toronto, 1997 (Canada); and P.E. Nygh, Conflict of Laws in Australia, 6 Ed., Butterworths, Sydney, 1995 (Australia). The Recueils des Cours, published annually by the Hague Academy of International Law, are especially important. See also Peter Schlosser, Report on the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters and to the Protocol on its Interpretation by the Court of Justice: Official Journal of the European Communities, 1979, C59; Das Recht des internationalen Schiedsgerichtsbarkeit, 2 Ed., Mohr, Tubingen, 1989; Allan Philip, American Danish Private International Law, Oceana Publications, New York, 1957; Allan Phillip, Dansk international privat-og procesret, Juristforbundets Forlag, Copenhagen, 1971.


10 Perhaps the most important European Union conflicts convention is the Rome Convention on the Law Applicable to Contractual Obligations, 1980, supra, note 7, which now has force of law in all countries of the Union. Many countries have also enacted one or more of the over thirty conflicts conventions drafted by the Hague Conference on Private International Law. See the listing of thirty-three of these "Hague Conventions" in Tetley, International Conflict, 1994 at pp. 1080-1081.


11 Examples of national conflicts statutes are the Loi fédérale sur le droit international privé du 18 décembre 1987 (Federal Statute on Private International Law of December 18, 1987) (Switzerland), 1988 Feuille fédérale I 5 (see English translation by J.-C. Cornu, S. Hankins & S. Symeonides, "Swiss Federal Statute on Private International Law of December 18, 1987 (LSU Translation)" (1989) 37 Am. J. Comp. L. 193; the Gesetz zur Neuregelung des Internationalen Privatrechts vom 25 Juli 1986 (Act on the Revision of Private International Law of July 25, 1986) (Germany) (see English translation in (1988) 27 I.L.M. 1); the Québec Civil Code, S.Q. 1991, c. 64, in force January 1, 1994, Book Ten ("Private International Law") (arts. 3076-3168); and in the United Kingdom, the Contracts (Applicable Law) Act 1990, U.K. 1990, c. 36 and the Private International Law (Miscellaneous Provisions) Act 1995, U.K. 1995, c. 42.


12 For a suggested conflicts methodology, see W. Tetley, International Conflict, 1994, Chap. II at pp. 35-43.


13 1 Ed., Boston, 1834.


14 These four interrelated principles were identified by later scholars, including W.W. Cook, "The Jurisdiction of Sovereign States and the Conflict of Laws" (1931) 31 Colum. L. Rev. 368; W.W. Cook, The Logical and Legal Bases of the Conflict of Laws, Harvard U. Press, Cambridge, Mass., 1942 at pp. 49-50; E. Lorenzen, "Story's Commentaries on the Conflict of Laws -- One Hundred Years After" (1934) 48 Harvard L. Rev. 15 at pp. 34-35; E. Lorenzen, Cases and Materials on the Conflict of Laws, 5 Ed., 1946 at pp. 5-7.


15 Story, supra, note 13, para. 7 at p. 10.


16 Story, ibid. para. 8


17 Story, ibid. para. 18.


18 Story, ibid. para. 20.


19 The theory of comity was not really created by Story, however. Rather, he was heavily influenced on this subject by Continental authors, especially Ulrich Huber (1636-1694), whose work De Conflictu Legum was highly regarded in the United States. See Lorenzen, Selected Articles on the Conflict of Laws, 1947, at p. 136; Cheshire & North's Private International Law (P.M. North & J.J. Fawcett, eds.), 12 Ed., Butterworths, London, 1992 at p. 27; E.F. Scoles & P. Hay, Conflict of Laws, 2 Ed., West, St. Paul, Minn., 1992 at pp. 11-15; F.K. Juenger, Choice of Law and Multistate Justice, Martinus Nijhoff, Dordrecht, 1993 at p. 21. See also International Conflict 1994, at p. 9.


20 Story's theory was ultimately related to his belief in the historic Christian doctrine of natural law, coupled with an acceptance of the liberal concept of a social contract, two concepts which are frequently hostile to each other. See Wardhaugh, supra, note 2 at pp. 308-315.


21Supra, note 13 at para. 36.


22 Tetley, International Conflict 1994 at p. 9.


23A Digest of the Law of England with Reference to the Conflict of Laws, 1 Ed., London, 1896.


24Ibid. at p. xliii:

"[a]ny right which has been duly acquired under the law of any civilised country is recognised, and, in general, enforced by English Courts, and no right which has not been duly acquired is enforced or, in general, recognised by English Courts."


25 J. Beale, A Selection of Cases on the Conflict of Laws, vol. 3, Harvard U. Press, Cambridge, Mass., 1902 at p. 517.


26Slater v. Mexican National Railroad Co. 194 U.S. 120 at p. 126 (1904).


27 J. Beale, A Treatise on the Conflict of Laws, 3 vols., Baker, Voorhis & Co., New York, 1935. See especially vol. 3 at pp. 501-545, containing a "Summary of the Conflict of Laws", where Beale presents his own views on the subject.


28 Adopted by the American Law Institute at Washington, D.C., May 11, 1934.


29 While Cook attacked vested rights, Ernest Lorenzen challenged Story's doctrine of territoriality. See especially E. Lorenzen, "Territoriality, Public Policy and the Conflict of Laws" (1923) 33 Yale L.J. 736.


30 The fullest expression of Cook's views is to be found in his great work, The Logical and Legal Bases of the Conflict of Laws, Harvard U. Press, Cambridge, Mass., 1942 at pp. 28-29. For an echo of Cook's ideas in case law, see Learned Hand, J.'s decision in Guinness v. Miller 219 F. 769 at p. 770 (S.D. N.Y. 1923), aff'd 299 F. 538 (2 Cir. 1924), aff'd in part, rev'd in part sub nom. Hicks v. Guinness 269 U.S. 71 (1925).


31 A. Ehrenzweig, Private International Law, A Comparative Treatise on American international law, including the law of admiralty, 3 vols., Sijthoff, Leyden and Oceana, Dobbs Ferry, N.Y., 1967-1977. See also W. Tetley, International Conflict, 1994 at pp. 9-10.


32 See Scoles and Hay, Conflict of Laws, 2 Ed., West Publishing Co., St. Paul, Minn., 1992 at pp. 20-23. Ehrenzweig, however, did advocate a limited scope of application for the lex validitatis in respect of conflicts of law relating to contracts and successions, however.


33 S. Symeonides, "Choice of Law in the American Courts in 1997" (1998) 46 Am. J. Comp. L. 234 at p. 245, and Table 1 at p. 266, being the Eleventh Annual Survey of American choice-of-law cases, conducted at the request of the Conflicts Section of the Association of American Law Schools. S. Symeonides has authored or co-authored seven of these most informative conflicts summaries. See, e.g., Motenko v.MGM Dist., Inc. 921 P.2d 933 at p. 935 (Nev. 1996), holding that Nevada law should apply in a tort case, "...unless another state has an overwhelming interest"; Foster v. Leggett 484 S.W.2d 827 at p. 829 (Ky. 1972); Adam v. J.B. Hunt Transport, Inc. 130 F.3d 219 at p. 231 (6 Cir. 1997) (applying Kentucky conflicts rules); Sutherland v. Kennington Truck Service, Ltd. 454 Mich. 274 at p. 284, 562 N.W.2d 466 at p. 471 (Mich. 1997); Burney v. PV Holding Corp. 218 Mich. App. 167 at p. 172, 553 N.W.2d 657 at p. 659 (1996), leave to appeal denied, 572 N.W.2d 9 (1997) (strong lex fori presumption in tort conflicts). Nevada's position is debatable. Its new "rule" was described by the dissent as lex loci delicti with a twist of lime!


34 D. Cavers, "A Critique of the Choice-of-Law Problem" (1933) 47 Harv. L. Rev. 173 at pp. 192-193, stated that the object of the choice of law in his process "...would not be the result of the automatic operation of a rule or principle of selection but of a search for a just decision in the principal case."


35 Cavers later set forth his ideas more completely in The Choice of Law Process, U. of Michigan Press, Ann Arbor, Mich., 1965, and in an addendum written in 1972 and reprinted in (1976) 17 Harv. Int'l. L.J 651, in which he admitted that there was nevertheless a need for some rules.


36 B. Currie, Selected Essays on the Conflict of Laws, Duke U. Press, Durham, N.C., 1963 at p. 189.


37 B. Currie, "The Disinterested Third State" (1963) 28 Law & Contemp. Prob. 754 at p. 778; "Notes on Methods and Objectives in the Conflict of Laws" 1959 Duke L.J. 171 at p. 176.


38 Tetley, International Conflict, 1994 at p. 12. See also G.E. Smith, "Choice of Law in the United States" (1987) 38 Hastings L.J. 1041 at p. 1047.


39 Currie wrote: "We would be better off without choice-of-law rules. Normally, even in cases involving foreign elements, the court should be expected as a matter of course to apply the rules of decision found in the law of the forum." See "Notes on Methods and Objectives in the Conflict of Laws", supra , note 37 at p. 177. On nihilism in Currie and Ehrenzweig, see Scoles and Hay, Conflict of Laws, supra, note 32 at p. 16.


40 Adopted by the American Law Institute at Washington, D.C., May 23, 1969. See in particular section 6.


41 See S. Symeonides, "Choice of Law in the American Courts in 1997" (1998) 46 Am. J. Comp. L. 234 at Table 1, p. 266. See, e.g., Reich v. Purcell 67 Cal.2d 551, 432 P.2d 727 (1967); Hurtado v. Superior Court 11 Cal.3d 574, 522 P.2d 666 (1974); Beech Aircraft Corp. v. Superior Court 61 Cal.App.3d 501 (1976); Liew v. Official Receiver and Liquidator 685 F.2d 1192 (9 Cir. 1982); Browne v. McDonnell Douglas Corp. 504 F. Supp. 514 (N.D. Cal. 1980); Bauer v. Club Med Sales, Inc. 1996 WL 310076 (N.D. Cal. 1996).


42 A.T. von Mehren and D.T. Trautman, The Law of Multistate Problems, Little, Brown & Co., Boston, 1965 at pp. 341-375.


43 A.T. von Mehren, "Special Substantive Rules for Multistate Problems: Their Role and Significance in Contemporary Choice of Law Methodology" (1974) 88 Harv. L. Rev. 347.


44 R.J. Weintraub, Commentary on the Conflict of Laws, 3 Ed., Foundation Press, Minneola, N.Y., 1986 at p. 284 et seq. See also Tetley, International Conflict, 1994 at pp. 13-14.


45Ibid. at p. 360 and 1991 Supplement, Foundation Press, Westbury, N.Y., 1991 at pp. 74-75.


46Ibid. at pp. 397-398.


47 W.F. Baxter "Choice of Law and the Federal System" (1963) 16 Stan. L. Rev. 1. See commentary on this theory in J.H.C. Morris (J.D. McLean, ed.), The Conflict of Laws, 4 Ed., Butterworths, London, 1993 at p. 455; Cheshire & North's Private International Law (P.M. North & J.J. Fawcett, eds.), 12 Ed., Butterworths, London 1992 at p. 34. Baxter's theory bears a resemblance to Pillet's "law of least sacrifice", proposed a century earlier. See. A.A. Pillet, Principes de droit international privé, Pedone, Paris, 1903.


48 See Cheshire & North's Private International Law, ibid.: "Courts are able to and ought to weigh the conflicting interests. The criterion for such evaluation is suggested as that of 'comparative impairment'". See also Scoles & Hay, Conflict of Laws, supra, note 32 at p. 598: "The place of injury remains an important factor but the focus of the inquiry has shifted to the effectuation of California interests, tempered in some cases by a weighing of interests in true conflicts situations in order to assess the degree of 'comparative impairment' which may be involved."


49 See Harold W. Horowitz, "The Law of Choice of Law in California: A Restatement" (1974) 21 U.C.L.A. L. Rev. 719; H.H. Kay, "The Use of Comparative Impairment to Resolve True Conflicts: An Evaluation" (1980) 68 Cal. L. Rev. 577; and Scoles & Hay, Conflict of Laws, 2 Ed., 1992 at pp. 591-599. See also Bernhard v. Harrah's Club 16 Cal.3d 313 at p. 320, 546 P.2d 719 at p. 723 (Cal.), cert. denied 429 U.S. 859 (1976); Offshore Rental Co. v. Continental Oil Co. 22 Cal.3d 157, 583 P.2d 721 (1978); Bauer v. Club Med Sales, Inc. 1996 WL 310076 (N.D. Cal. 1996).


50 See, e.g., arts. 3519, 3537 and 3542. See also S. Symeonides, "Louisiana's New Law on Choice of Law for Tort Conflicts: An Exegesis" (1992) 66 Tul. L. Rev. 677 at pp. 683 and 691.


51 R.A. Leflar, "Choice-Influencing Considerations in Conflicts Law" (1966) 41 N.Y.U. L. Rev. 267 at p. 279; R.A. Leflar, "Conflicts Law: More on Choice-Influencing Considerations" (1966) 54 Cal. L. Rev. 1584 at pp. 1586-1588; R.A. Leflar, L.L. McDougal III & R.L. Felix, American Conflicts Law, 4 Ed., Michie Co., Charlottesville, Va., 1986 at p. 279.


52 See examples of the better law theory in practice such as Milkovic v. Saari 295 Minn. 155, 203 N.W.2d 408 at p. 417 (Minn. 1973); Clark v. Clark 107 N.H. 351, 222 A.2d 205 (N.H. 1966); Benoit v. Test Systems, Inc. 694 A.2d 992 (N.H. 1997); Conklin v. Horner, 38 Wis.2d 468, 157 N.W.2d 579 (Wis. 1968); Kuehn v. Childrens Hospital, Los Angeles 119 F.3d 1296 at pp. 1302-1303 (7 Cir. 1997) (applying Wisconsin conflicts law); Griffin v. American Motors Sales Corp. 618 F. Supp. 455 (.D. Minn. 1985); Victoria v. Smythe 703 A.2d 619 (R.I. 1997). See also Comment, "Stacking the Deck: Wisconsin's Application of Leflar's Choice-Influencing Considerations to Torts Choice-of-Law Cases" 1985 Wis. L. Rev. 401.


53 Leflar, "More on Choice-Influencing Considerations", supra, note 51 at p. 1588. See, however, various Minnesota decisions where Leflar's theory has in effect resulted in a forum preference: Allstate Insurance v. Hague 289 N.W.2d 43 at pl 48 (Minn. 1978), aff'd 449 U.S. 302 (1981); Wille v. Farm Bureau Mut. Ins. Co. 432 N.W.2d 784 (Minn. Ct. App. 1988); Lommen v. The City of East Grand Forks 522 N.W.2d 148 (Minn. Ct. App. 1994).


54 S. Symeonides,  "Choice of Law in the American Courts in 1997" (1998) 46 Am. J. Comp. L. 234 at p. 253 and Table 1 at p. 266.


55 L.L. McDougal III, "Toward Application of the Best Rule of Law in Choice of Law Cases" (1984) 35 Mercer L. Rev.


56 L.L. McDougal III, "The Real Legacy of Babcock v. Jackson: Lex Fori Instead of Lex Loci Delicti and Now It's Time For A Real Choice Of Law Revolution" (1993) 56 Alb. L. Rev. 795 at p. 805.: "Courts could resolve transstate and transnational cases in the same manner that they do domestic cases: ascertain which law makes the best socioeconomic sense in contemporary society and apply that law to resolve the cases."


57 L.L. McDougal III, "'Private' International Law: Ius Gentium versus Choice of Law Rules or Approaches" (1990) 38 Am. J. Comp. L. 521 at pp. 521, 532 and 537.


58 F.K. Juenger, Choice of Law and Multistate Justice, Martinus Nijhoff, Dordrecht, 1993 at pp. 86-87.


59 See Patrick J. Borchers, "The Choice-of-Law Revolution: An Empirical Study" (1992) 49 Wash. & Lee L. Rev. 357 An example of a decision which appears to implement the result-oriented approach is Cooney v. Osgood Machinery, Inc. 81 N.Y.2d 66, 595 N.Y.S.2d 919, 612 N.E.2d 277 (1993), where the New York Court of Appeals, in a footnote, supported its decision to give effect to Missouri, rather than New York, law in a workmen's compensation case arising in Missouri, on the ground that it was undesirable to impose New York's law permitting contribution against an employer, which was a minority view, on the carefully structured workers' compensation schemes of other states (including Missouri) which prohibited such contributions. Juenger applauded this footnote, which appeared to support a teleological analysis to identify the law that "...most closely accords with modern tort law standards". See Juenger, "Babcock v. Jackson Revisited: Judge Fuld's Contribution to American Conflicts Law" (1993) 56 Alb. L. Rev. 727 at p. 751. The decision could arguably be cited as one supporting the theories of Weintraub or Leflar as well. See S. Symeonides, "Choice of Law in the American Courts in 1993 (and in the six Previous Years)" (1994) 42 Am. J. Comp. L. 599 at p. 624.


60 W. Tetley, "The General Maritime Law: The Lex Maritima" (1994) 20 Syracuse J. Int'l. L. & Com. 105 at p. 144; A. Lowenfeld, "Juenger's Choice of Law and Multistate Justice" (1993) 88 Am. J. Comp. L. 802 (book review); P.E. Nygh, book review (1993) 67 Australian L.J. 802 at p. 803.


61 Adopted at Washington, D.C., May 11, 1934.


62Ibid. at Rule 64.


63Ibid. at Rule 65.


64Ibid. at Rule 332.


65Ibid. at Rule 377.


66 Adopted at Washington, D.C., May 23, 1969.


67 J.H.C. Morris and G.C. Cheshire, "The Proper Law of a Contract in the Conflict of Laws" (1940) 45 L.Q.R. 320; J.H.C. Morris, "The Proper Law of the Tort" (1951) 64 Harv. L. Rev. 881; J.H.C. Morris, "Torts in the Confict of Laws" (1949) 12 M.L.R. 248.


68 J.H.C. Morris, "Law and Reason Triumphant or: How not to Review a Restatement" (1973) 21 Am. J. Comp. L. 322 at p. 330. See also the judicial acceptance of the most significant relationship criterion in decisions such as Lauritzen v. Larsen 345 U.S. 571 at p. 582, 1953 AMC 1210 at p. 1219 (1953); Romero v. International Terminal Operating Co. 358 U.S. 354 at pp. 383-384, 1959 AMC AMC 832 at pp. 854-856 (1959) and Hellenic Lines v. Rhoditis 398 U.S. 306 at p. 308, 1970 AMC 994 at p. 996 (1970).


69 See S. Symeonides, "Choice of Law in the American Courts in 1997" (1998) 46 Am. J. Comp. L. 234, Tables 1 at p. 266. Different states continue to embrace the Restatement Second to replace their former lex loci conflicts rules. See, e.g., Amiot v. Ames 693 A.2d 675 (Vt. 1997) and Miller v. White 702 A.2d 392 (Vt. 1997) (Vermont Supreme Court changes from lex loci delicti to the Restatement Second in tort); American National Fire Ins. Co. v. Farmers Ins. Exchange 927 P.2d 186 (Utah 1996) (Utah Supreme Court moves from lex loci contractus to the Restatement Second.


70Bickel v. Korean Air Lines Co. 83 F.3d 127 at p. 130 (6 Cir. 1996). In this diversity case, the conflicts rules of the forum state did not apply according to the usual rule of Klaxon Co. v. Stentor Electric Mfg. Co. 313 U.S. 487 (1941), because the interpretation of a federal treaty (the Warsaw Convention 1929) was involved.


71 Convention for the Unification of Certain Rules Relating to International Transportation by Air, signed at Warsaw, on October 12, 1929 (ICAO Doc. 9201).


72 2 Ed., Aspen Law & Business Publications (formerly Little, Brown and Company), Gaithersburg, Md. 1995. See also R. Lea Brilmayer, Conflict of Laws: Cases and Materials, 4 Ed., Aspen Law & Business Publications, 1995.


73 5 Ed., West Publishing Co., St. Paul, Minn., 1993.


74 Black Letter Series, 2 Ed., West Publishing Co., St. Paul, Minn., 1994.


75 4 Ed., Michie Co., Charlottesville, Va., 1986.


76 3 Ed., Lexis Law Publishing, Charlottesville, Va., 1998.


77 2 Ed., Matthew Bender & Co. Inc., New York, 1998. See also Trade Controls for Political Ends, 2 Ed., Matthew Bender & Co. Inc., New York, 1983; The International Monetary System, 2 Ed., Matthew Bender & Co. Inc, New York, 1984; P. Pescatore, W.J. Davey & A.F. Lowenfeld, eds., Handbook of WTO/GATT Dispute Settlement, Transnational Juris Publications, Irvington-on-Hudson, N.Y., 1991; International Litigation and the Quest for Reasonableness: Essays in Private International Law, Clarendon Press, Oxford, 1996; and International Litigation and Arbitration, 1993.


78 10 Ed., Foundation Press, Mineola, N.Y., 1996.


79 2 Ed., West Publishing Co., St. Paul, Minn., 1992.


80 2 Ed., West Publishing Co., St. Paul, Minn., 1994.


81 West Publishing Co, St. Paul, Minn., 1998.


82 3 Ed., Foundation Press, Mineola, N.Y., 1986.


83 In private maritime law, for example, the United States enacted the Carriage of Goods by Sea Act (COGSA), Act of April 16, 1936, ch. 229, 49 Stat. 1207, 46 U.S. Code Appx. sect. 1300 et seq., in 1936, giving effect, with some variation, to the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, adopted at Brussels, August 25, 1924 (the "Hague Rules 1924"). The U.S. has not, however, ratified or enacted either of the two major Protocols to the Hague Rules, commonly known as the "Visby Protocol" of February 23, 1968 and the "Visby S.D.R. Protocol" of December 21, 1979. The U.S. also enacted the Salvage Act, Act of August 1, 1912, ch. 268, 37 Stat. 242, 46 U.S. Code Appx. sect. 727 et seq, to give effect to the Convention for the Unification of Certain Rules of Law Relating to Assistance and Salvage at Sea, adopted at Brussels, September 23, 1910 (the Salvage Convention 1910) and, more recently, ratified (on March 27, 1992) the International Convention on Salvage, 1989, adopted at London on April 28, 1989 (in force as of July 14, 1996) (see text [1990] LMCLQ 54). Unlike most other major shipping nations, however, the United States is not a party to many international conventions on such maritime law matters as collision, limitation of shipowners' liability and oil pollution.


84 Adopted at New York, June 10, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997, 330 U.N.T.S. 3 (U.S. ratification: September 30, 1970; in force for the U.S.: December 29, 1970). The Convention is enforced in U.S. courts pursuant to an amendment to the United States Arbitration Act made by the Act of July 31, 1970, Public Law No. 91-368, 84 Stat. 692, 9 U.S. Code sects. 201-208.


85 Adopted by the Organization of American States (O.A.S.) at Panama City, January 30, 1975, (U.S. ratification: September 27, 1990, in force for the U.S.: October 27, 1990). The Convention is enforced in U.S. courts pursuant to an amendment to the United States Arbitration Act made by the Act of August 15, 1990, Public Law No. 101-369, 104 Stat. 448, 9 U.S. Code sects. 301-307. The U.S. is also party to the Inter-American Convention on Letters Rogatory, done at Panama, January 30, 1975 and the Additional Protocol, done at Montevideo, May 8, 1979, (1975) 14 I.L.M. 339, (1980) 18 I.L.M. 1238 (in force for the U.S.: August 27, 1988).


86 Adopted at Vienna, April 11, 1980. See 15 U.S. Code Appx., UN Convention on Contracts for the International Sale of Goods, (1980) 19 I.L.M. 671 (U.S. ratification: December 11, 1986; in force for the U.S.: January 1, 1988). The U.S. is also party to the Convention on the Limitation Period in the International Sale of Goods, adopted at New York, June 12, 1974, and the Additional Protocol, done at Vienna on April 11, 1980, (1974) 13 I.L.M. 952, (1980) 19 I.L.M. 696 (U.S. accession: May 5, 1994; in force for the U.S.: December 1, 1994).


87 The U.S. is party, for example, to the Convention on Abolishing the Requirement of Legalisation for Foreign Public Documents, adopted at The Hague, October 5, 1961, 33 U.S.T. 883, T.I.A.S. No. 10072, 527 U.N.T.S. 189 (U.S. accession: December 24, 1980; in force for the U.S.: October 15, 1981); the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, adopted at The Hague, November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, 658 U.N.T.S. 163 (U.S. ratification: August 24, 1967; entry into force: February 10, 1969); and the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, adopted at The Hague, October 26, 1968 and opened for signature, March 18, 1970, 23 U.S.T. 2555, T.I.A S. No. 7444, 647 U.N.T.S. 231 (U.S. ratification: August 8, 1972; in force for the U.S., October 7, 1972); and the Convention on the Civil Aspects of International Child Abduction, done at The Hague, October 25, 1980, T.I.A.S. No. 11670, (1980) 19 I.L.M. 1501 (U.S. rafitication: April 29, 1988; in force for the U.S. July 1, 1988).


88 The Louisiana Civil Code, art. 14 and Book IV (arts. 3515 to 3549) on "Conflicts of Law", as adopted by Act No. 923 of July 24, 1991, in force as of January 1, 1992, and as amended (with respect to art. 3533 on succession to immovables) by Act No. 257 of 1997, approved on June 17, 1997. See generally Symeon C. Symeonides, "Louisiana's New Choice of Law for Tort Conflicts: An Exegesis" (1992) 66 Tul. L. Rev. 677. Among the celebrated authorities on the civil law in general and the Louisiana Civil Code in particular is A.N Yiannopoulos, Civil Law in the Modern World, Louisiana State U. Press, Baton Rouge, La., 1965; Louisiana Civil Law System: Coursebook, Part I, 2 Ed., Claitor's Pub. Div., Baton Rouge, La., 1977; Louisiana Civil Code as revised and amended, serial, West Publishing Co., St. Paul, Minn. There are also a few provisions on conflicts in the Puerto Rican Civil Code of 1930 (e.g. arts. 10 and 11; see 31 L.P.R.A. 10 and 11 (1992)), but no complete treatment of the subject. Unfortunately, not all Louisiana courts appear to be applying the new codal conflicts law. See Egan v. Kaizer Aluminum & Chemical Corp. 677 So. 2d 1027 (La. App. 1996), writ denied 96-2401, 12/6/96 (La. 1996), where Louisiana's pre-codification conflicts law (a blend of interest analysis and the Restament Second of the Conflict of Laws) was applied instead of the Code. See S. Symeonides, "Choice of Law in the American Courts in 1996: Tenth annual survey" (1997) 45 Am. J. Comp. L. 447 at p. 474, note 134.


89 For example, when Austria was drafting what became its statute on private international law of June 15, 1978, BGBl Austria, No. 304/1978, consideration was given to the mechanics of conflicts decision-making. Unfortunately, however, no agreement was reached and so no methodology was enacted in the statute when it was ultimately adopted. See Edith Palmer, "The Austrian Codification of Conflicts of Law" (1980) 28 Am. J. Comp. L. 197 at pp. 205-206; W. Tetley, International Conflict, 1994 at p. 38.


90 See my suggested conflict of laws methodology proposed in W. Tetley, International Conflict, 1994 at pp. 37-43.


91 See R.A. Leflar, L.L. McDougal III & R.L. Felix, American Conflicts Law, 4 Ed., 1986 at pp. 391-393; J.E. Westbrook, "A Survey and Evaluation of Competing Choice-of-Law Methodologies" (1975) 40 Mo. L. Rev. 407; E.F. Scoles & P. Hay, Conflict of Laws, 2 Ed., 1992 at p. 569.


92 Aristotle, Nicomachean Ethics V (Terence Irwin, trans.), Hackett Publishing, Indianapolis, 1985 (hereinafter cited as "Aristotle, Nicomachean Ethics").


93 For more complete and detailed examinations of corrective and distributive justice, see E.J. Weinrib, "Corrective Justice" (1992) 77 Iowa L. Rev. 403; J.L. Coleman, "The Mixed Conception of Corrective Justice" (1992) 77 Iowa L. Rev. 427; and P. Benson, "The Basis of Corrective Justice and Its Relation to Distributive Justice" (1992) 77 Iowa L. Rev. 515.


94 Aristotle, Nicomachean Ethics, at para. 1130b2.


95 The Greek term "to ison" can mean either equality or fairness. See Irwin's translation of Aristotle, Nicomachean Ethics, supra, at p. 124 note 30.


96 Aristotle, Nicomachean Ethics at para. 1131a29-1131b12.


97Ibid. at para. 1132b18-20.


98 Aristotle likened the role of the judge in corrective justice to a geometer who re-establishes the mid-point of a line that has been split into two unequal segments, by attaching to the smaller segment the portion by which the larger segment exceeds the half. See Aristotle, Nicomachean Ethics at para. 1132a21-32.


99 P. Benson, supra, note 93 at p. 542.


100 Ernest Weinrib, "Corrective Justice" (1992) 77 Iowa L. Rev. 403 at p. 415.


101 The corrective justice philosophy, as applied to tort law, still has strong supporters in the United States. See, e.g., C.P. Wells, "Tort Law as Corrective Justice: A Pragmatic Justification for Jury Adjudication" (1990) 88 Mich. L. Rev. 2348.


102 See P.S. Atiyah, "Tort Law and the Alternatives: some Anglo-American Comparisons" 1987 Duke L.J. 1002 at p. 1019. At p. 1044, Atiyah speaks of American tort law as having "...fallen under the control of a sort of proplaintiff party which seems to see its function as performing the redistributive exercises performed by legislatures in other democratic systems".


103 M. Schwarzschild, "Class, National Character and the Bar Reforms in Britain: Will There Always Be an England?" (1994) Conn. J. Int'l L. 185 at p. 218.


104 R.M Jarvis, writing in (1992) 4 U.S.F. Mar. L.J. at pp. 307-308, referring to a 1991 survey by the Southern Admiralty Law Institute, noted that a bar association of maritime attorneys practising along the Atlantic and Gulf coasts reported that "personal injury work accounted for the bulk of maritime cases handled by those in the survey". See also W. Hoppe, "The Supreme Court at Sea: Twenty Years of Admiralty Jurisprudence" (1993) 24 JMLC 671 at pp. 673-675 (Table 2), showing that 30% of the 48 admiralty decisions rendered by the U.S. Supreme Court between 1972 and 1991 concerned various forms of personal injury and death claims of seamen under the Jones Act, 46 U.S. Code Appx. sect. 688 or of longshoremen under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S. Code sect. 901 et seq. See Tetley, International Conflict, 1994 at p. 21, note 62.


105 See Lord Donaldson of Lymington, "Sources of Recovery for Maritime Personal Injury and Death under British Law" (1994) 68 Tul. L. Rev. 367.


106 46 U.S. Code Appx. sect. 688. See also Romero v. International Terminal Operating Co. 358 U.S. 354 (1959); Tetley, Maritime Liens and Claims, 2 Ed., Blais, Montreal, 1998 at p. 312 (hereinafter cited as "Tetley, Maritime Liens and Claims, 2 Ed., 1998").


107 46 U.S. Code Appx. sect. 761 et seq.


108Supra, note 104. See also Doyle v. Albatross Tanker Corp. 367 F.2d 465 (2 Cir.. 1966); Complaint of Patton-Tulley Transp. Co. 797 F.2d 206 at p. 212 (5 Cir. 1986), rehearing denied 800 F.2d 262 (5 Cir. 1986); W. Tetley, Maritime Liens and Claims, 2 Ed., 1998 at p. 314.


109Moragne v. States Marine Lines 398 U.S. 375, 1970 AMC 967 (1970).


110Yamaha Motor Corp., U.S.A. v. Calhoun 116 S.Ct. 619, 1996 AMC 305 (1996).


111 American general maritime law permits recovery of damages for negligent infliction of purely emotional distress where an individual is within a "zone of danger", i.e., placed in immediate risk of physical harm, due to the negligent conduct of the defendant, even if the victim suffers no physical harm or "impact". See Consolidated Rail Corporation v. Gottshall 512 U.S. 532, 1994 AMC 2113 (1994) (a railway case); Anselmi v. Penrod Drilling Co. 813 F. Supp. 436, 1993 AMC 1617 (E.D. La. 1993); Chan v. Society Expeditions, Inc. 39 F.3d 1398 at pp. 1408-1409, 1994 AMC 2642 at p. 2656 (9 Cir. 1994); Williams v. Carnival Cruise Lines, Inc. 907 F. Supp. 403 at p. 404, 1996 AMC 729 at pp. 730-732 (S.D. Fla. 1995); Clearsky Shipping Corp. Lim Procs. 1998 AMC 1981 at p. 1982 (E.D. La. 1998). See also Gerald E. Meunier, "Elements of Recovery in Maritime Personal Injury Cases" (1997) 72 Tul. L. Rev. 805 at pp. 810-819.


112 See J.G. Fleming, "The Collateral Source Rule and Loss Allocation in Tort Law" (1966) 54 Cal. L. Rev. 1478; P.S. Atiyah, supra, note 102 at pp. 1024-1025; J.G Fleming, The American Tort Process, Clarendon Press, Oxford, 1988 at pp. 206-211 (hereinafter cited as "Fleming, The American Tort Process, 1988").


113 Fleming, The American Tort Process, 1988 at pp. 211-214.


114 Fleming, ibid. at pp. 214-232. On punitive damages, see infra, discussion surrounding notes 141 to 155 re civil jury trials.


115 Among the statutes were the Federal Water Pollution Control Act (the "Clean Water Act"), 33 U.S. Code sects. 1251-1387 (1948, but added to in 1972); the Trans-Alaska Pipeline Authorization Act (TAPAA), 43 U.S. Code sects. 1651-1656 (1973); the Outer Continental Shelf Lands Act Amendments of 1978, 43 U.S. Code sects. 1801-1866; and the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S. Code sects. 9601-9675.


116 33 U.S Code sects. 2701-2761. On OPA '90, see T. Schoenbaum, Admiralty and Maritime Law, 2 Ed., vol. 2, West Publishing Co., St. Paul, Minn., 1994, para. 18-2 at pp. 372-386; A. J. Rodriguez and P.A.C. Jaffe, "The Oil Pollution Act of 1990" (1990) 15 Tul. Mar. L.J. 1; T.J. Wagner, "The Oil Pollution Act of 1990: An Analysis" (1990) 21 JMLC 569.


117 33 U.S. Code sect. 2702(b)(2)(A) to (F).


118 33 U.S. Code sect. 2702(b)(2)(B).


119 33 U.S. Code sect. 2704(a) to (d).


120 33 U.S. Code sect. 2702(b)(1).


121 33 U.S. Code sect. 2718(1).


122In re Complaint of Nautilus Motor Tanker Co., Ltd. 900 F. Supp. 679 (D. N.J. 1995). Note that the recoverability of pure economic loss under OPA '90 itself is questionable. See T. Schoenbaum, supra, note 116 at pp. 382-383; W. Tetley, Maritime Liens & Claims, 2 Ed., 1998 at pp 146-147, note 63.


123Union Oil Co. v. Oppen 501 F.2d 558, 1975 AMC 416 (5 Cir. 1974); State of Louisiana ex rel. Guste v. M/V Testbank 524 F .Supp. 1170, 1982 AMC 2246 (E.D. La. 1981), aff'd on other grounds, 728 F.2d 748, 1984 AMC 2951 (5 Cir. 1984), aff'd en banc, 752 F.2d 1019, 1985 AMC 1512 (5 Cir. 1985).


124 43 U.S. Code sect. 1653(c). See In re Glacier Bay 746 F. Supp. 1379, 1991 AMC 739 (D. Alas. 1990); In re Exxon Valdez 767 F. Supp. 1509, 1991 AMC 1482 (D. Alas. 1991; Slaven v. B.P. America, Inc. 786 F. Supp. 853, 1993 AMC 455 (C.D. Cal. 1992).


125 954 F.2d 1279, 1992 AMC 913 (7 Cir. 1992).


126 See further discussion of this case, infra, discussion surrounding notes 190 to 216 re forum non conveniens


127 Fleming, The American Tort Process, 1988 at p. 14. See also ibid. at p. 113, where Fleming cites a study showing that products liability and professional malpractice cases tried by civil juries in Chicago more than trebled in number between 1960 and 1979, resulting in a decrease in jury trials for other types of cases, and especially work-related accident suits.




129Ibid. at pp. 16-17.


130Whitehouse v. Jordan [1980] 1 All E.R. 650 at p. 658 (C.A.).


131 H.J. Reske, "Tort Awards Increasing: Experts Peg Rise to Decreased Publicity About Tort Reform, Profit-Driven Corporate Decision-Making" (1996) 82 A.B.A. J. 26.


132 Among the best-known examples of such mass claims are: In re 'Agent Orange' Product Liability Litigation 100 F.R.D. 718 (E.D. N.Y. 1983), aff'd 725 F.2d 858 (2 Cir. 1984); In re Northern District of California 'Dalkon Shield' IUD Product Liability Litigation 693 F.2d 847 (9 Cir. 1982); Jackson v. Johns-Manville Sales Corp. 750 F.2d 1314 (5 Cir. 1985) (asbestos); In re Benedictin Products Liability Litigation 749 F.2d 300 (6 Cir. 1984); In re Federal Skywalk Cases 680 F.2d 1175 (8 Cir. 1982) (collapse of skywalks at a hotel).


133 See D. Rosenberg, "The Causal Connection in Mass Exposure Cases: A 'Public Law' Vision of the Tort System" (1984) 97 Harv. L. Rev. 851; D. Rosenberg, "Class Actions for Mass Torts: Doing Individual Justice by Collective Means" (1987) 62 Ind. L.J. 561; D.R. Hensler & M.A. Peterson, "Understanding Mass Personal Injury Litigation: A Socio-Legal Analysis" (1993) 59 Brook. L. Rev. 961 at p. 961; D.R. Hensler, "Reading the Tort Litigation Tea Leaves: What's Going on in the Civil Liability System?" (1993) 16 Just. Sys. J. 139 at p. 147. In the 1980's the asbestos, "Agent Orange" and Dalkon Shield lawsuits each involved nearly 200,000 or more claimants. In some U.S. courts, during the 1980's, mass tort claims represented over 25% of the entire civil caseload, and by 1990, asbestos litigation alone accounted for 75% of all new federal product liability filings. See J. C. Coffee, Jr., "Class Wars: The Dilemma of the Mass Tort Class Action" (1995) 95 Colum. L. Rev. 1343 at p. 1356.


134 See Coffee, ibid., at pp. 1344-1345, tracing the gradual acceptance of the class action in mass torts, in decisions such as Jenkins v. Raymark Industries, Inc.782 F.2d 468 (5 Cir. 1986) (asbestos); In re School Asbestos Litigation 789 F.2d 996 (3 Cir. 1986) (asbestos); In re A.H. Robins Co., Inc. 880 F.2d 709 (4 Cir. 1989), cert. denied, 493 U.S. 959 (1989) (Dalkon Shield); In re "Agent Orange" Prod. Liab. Litig. 818 F.2d 145 at pp. 163-167 (2 Cir. 1987), cert. denied, 484 U.S. 1004 (1988) (Agent Orange); In re Copley Pharmaceutical, Inc., "Albuterol" Prods. Liab. Litig. 161 F.R.D. 456 (D. Wyo. 1995) (Albuterol). See also Rule 23 of the Federal Rule of Civil Procedure on class actions.


135 Ros Sparrow, "Corporate Friendly Europe", Int'.l. Com. Litig., March 1996 at p. 2, cited in Gerald Walpin, "America's Failing Civil Justice System: Can we Learn from Other Countries?" (1997) 41 N.Y.L.Sch.L.Rev. 647 at p. 651, note. 26 (hereinafter cited as "Walpin, 1997").


136 Walpin, 1997. at p. 652, note 31.


137 D.R. Hensler & M.A. Peterson, supra, note 133 at p. 966. They indicate as well that about 30 firms have represented the majority of the 44,000 Dalkon Shield claimants. See also Coffee, supra, note 133 at p. 1364. Another study shows that six attorneys represented 8,039 clients in mass tort class actions and another 43 represented some 13,174 claimants. See G.M. Vairo, "Reinventing Civil Procedure: Will the New Procedural Regime Help Resolve Mass Torts?" (1993) 59 Brook. L. Rev. 1065 at p. 1075 note 47.


138 "Methods for Resolving Conflict-of-Laws Problems in Mass Tort Litigation" [1989] U. Ill. L. Rev. 129 at p. 156.


139 Fleming, The American Tort Process, 1988 at pp. 264-265. See also R. L. Rabin, "Some Thoughts on the Efficacy of a Mass Toxics Administrative Compensation Scheme" (1993) 52 Md. L. Rev. 951.


140 H. J. Moskowitz & R.B. Wallace, "Loser-Pays: A Deterrent to Frivolous Claims?" N.Y. L.J., March 7, 1996 at p. 2, cited by Walpin, 1997 at p. 648.


141 U.S. Constitution, amendment VII: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." Many state constitutions contain similar provisions.


142 In Canada, for example, civil juries are rarely requested and may be dismissed by the court at any stage of proceedings based on the complexity of the issues. See B.A. Thomas, Q.C. & L.G. Theall, "Product Liability and Innovation: A Canadian Perspective" (1995) 21 Can. - U.S. L.J. 313 at pp. 314-315, cited by Walpin, 1997 at p. 652, note 37. In the U.K., civil juries are used only in defamation and fraud cases. See Walpin, 1997. at p. 653, note 36.


143 P.S. Atiyah, "Lawyers and Rules: Some Anglo-American comparisons" (1983) 37 Sw. L.J. 545 at p. 555.


144 Fleming, The American Tort Process, 1988, at pp. 217-219, traces how American courts gradually extended the right to punitive damages from cases of gross misconduct to cases of intentional injury, conscious disregard for the safety of others, products liability cases and cases of malicious breach of contract. He notes that this development coincided with the rise in influence of the plaintiffs' bar.


145 A. Chin and M.A. Peterson, Deep Pockets, Empty Pockets: Who Wins in Cook County Jury Trials, Rand Corp., Santa Monica, Cal., 1985, cited by Fleming, The American Tort Process, 1988 at p. 112.


146 In a study of Californian jury punitive damage awards, the median award against businesses was found to be five times greater, and on average six times greater, than awards against individuals. See M. Peterson, S. Sarma and M. Shanley, Punitive Damages. Empirical Findings, Rand Corp., Insitute for Civil Justice, Santa Monica, Cal., 1987 at pp. 50-51, cited by Fleming, The American Tort Process, 1988 at p. 112.


147 See H.J. Reske, supra, note 131; Walpin, 1997 at p. 648. See also Walpin, 1997 at p. 653, citing a report from the Organization for Economic Co-operation and Development (OECD) , "Product Liability rules in OECD Countries", 1995 at p. 26, stating: "The impact of juries is not limited to the United States. In Ireland, which also has jury civil trials, the average damages are six times greater than in England, where judges award damages."


148 116 S. Ct. 1589 (1996). This seems to have been the first time that the Supreme Court actually reduced a verdict, although the possibility of its so doing had been discussed previously.


149Ibid. at pp. 1594-1595.


150 [1964] A.C. 1129 (H.L.).


151 Walpin, 1997 at p. 660. Canada and Australia also limit punitive damages. In Australia, for example, exemplary damages are granted only"where the defendant engages in conscious wrongdoing in contumelious disregard of another's rights". See M. Tilbury and H. Luntz, "Punitive Damages in Australian Law" (1995) 17 Loy. L.A. Int'l & Comp. L.J. 769 at p. 786. See also the Québec Civil Code 1994 at art. 1621, which provides as follows:

"Art. 1621. Where the awarding of punitive dmages is provided for by law, the amount of such damages may not exceed what is sufficient to fulfil their preventive purpose.

Punitive damages are assessed in the light of all the appropriate circumstances, in particular the gravity of the debtor's fault, his patrimonial situation, the extent of the reparation for which he is already liable to the creditor and, where such is the case, the fact that the payment of the damages is wholly or partly assumed by a third person."


152 See, e.g., Riches v. News Group Newspapers [1986] Q.B. 256 (C.A.), where an exemplary award of �250,000 was set aside as disproprtionate to the compensatory damages of �3,000.


153 See A.H. Scheiner, "Judicial Assessment of Punitive Damages, the Seventh Amendment, and the Politics of Jury Power" (1991) 91 Colum. L. Rev. 142 at pp. 180 and 222.


154 See Conn. Gen. Stat. Ann. 52-240(b) (West 1990); Kan. Stat. Ann. 60-3702 (1989); Ohio Rev. Code Ann. 2315.212(C) (Banks-Baldwin 1990). See also Walpin, 1997 at p. 653.


155 Fleming, The American Tort Process, 1988 at p. 135: "The upward pressure which has more than doubled the real value of jury awards in tort actions since 1960 reflects the growing success of the plaintiffs' bar in pursuing not only their client's interest but also their own in so far as their fees are linked to the award."


156 See, e.g, Alyeska Pipeline Service Co. v. Wilderness Society 421 U.S. 240 at p. 257 (1975); Boland Marine & Mfg. Co. v. Rihner 41 F.3d 997 at p. 1004 (5 Cir 1995).


157 See A.L. Goodhart, "Costs" (1928-29) 38 Yale L.J. 849 at pp. 872-877. On the history of the American Rule generally, see J. Leubsdorf, "Toward a History of the American rule on Attorney Fee Recovery" (1984) 47 Law & Contemp. Prob. 9; D.W. Robertson, "Court Awarded Attorney's Fees in Maritime Cases. The 'American Rule' in Admiralty" (1996) 27 JMLC 507; Tetley, Maritime Liens and Claims, 2 Ed., 1998 at p. 233.


158 Among the most important federal statutes allowing fee-shifting, see the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S. Code sect. 1988 and the Equal Access to Justice Act, 5 U.S. Code sect. 504. See also Note, "State Attorney Fee Shifting Statutes: Are We Quietly Repealing the American Rule?" (1984) 47 Law & Contemp. Prob. 321, listing 1,974 statutes of U.S. states providing for fee-shifting.


159 Many contracts for the carriage of goods by sea contain clauses imposing attorney's fees. See, e.g. Puerto rico Maritime Shipping Authority v. FMC 75 F.3d 63 at p. 69 (1 Cir. 1996).


160 Among the judge-made exceptions are cases: a) where fee-shifting is required by equity, b) where it is imposed as a sanction for bad faith or callous conduct; and c) where the common benefit of members of a class have been served by litigation instituted by one plaintiff. For examples of equity and bad faith cases, see, e.g., Vaughan v. Atkinson 369 U.S. 527, 1962 AMC 1131 (1962); F.D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co. 417 U.S. 116 (1974); Chambers v. NASCO, Inc. 501 U.S. 32 (1991); Guevara v. Maritime Overseas Corp. 59 F.3d 1496, 1995 AMC 2409 (5 Cir. en banc 1995), cert. denied 116 S.Ct. 706 (1996). For examples of the "attorneys for the common benefit" exception, see Mills v. Electric Auto-Lite 396 U.S. 375 at pp. 396-397 (1970); Boeing Co. v. Van Gemert 444 U.S. 472 at p. 478 (1980); In re Copley Pharmaceutical, Inc. "Albuterol" Products Liability Litigation 1 F. Supp. 2d 1407 at p. 1409 (D. Wyo. 1998) See generally, Tetley, Maritime Liens and Claims, 2 Ed., 1998 at pp. 234-240.


161 See J.F. Vargo, "The American Rule on Attorney Fee Allocation" (1993) 42 Am. U. L. Rev. 1567.


162 T.D. Rowe, Jr., "Predicting the Effects of Attorney Fee Shifting" (1984) Law & Contemp. Prob. 139 at p. 150. See also T.D. Rowe, Jr., "Study on Paths to a 'Better Way': Litigation, Alternatives, and Accommodation" 1989 Duke L. J. 824 at p. 851: "The rarity of fee awards against losing plaintiffs probably deters weak claims less than British and Continental loser-pay approaches would...."


163 See, e.g. the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S. Code sect. 1988, permitting the plaintiff to collect his fees from the U.S. Government if sucessful, while precluding the Government from doing so if it successfully defends the plaintiff's civil rights claim. See also Walpin, 1997 at pp. 657-658.


164 The Rule may have also contributed to high damage awards by civil juries, awards which are suspected of taking account of the legal fees to be paid by the victorious plaintiff. See Kalven, "The Jury, the Law, and the Personal Injury Damage Award" (1958) 19 Ohio St. L. J. 158 at pp. 175-178; Walpin, 1997 at p. 661 states that juries often "inflate punitive damage awards in order to make up for the portion of a compensatory award that represents attorneys' fees...." Rule 11 of the Federal Rules of Civil Procedure has been enforced vigorously, in an effort to cut back on frivolous claims.


165 See Alaska Rules of Civil Procedure, Rule 82 (1997); Note, "Award of Attorney's Fees in Alaska" (1974) 4 UCLA-Alaska L. Rev. 129. See also Hughes v. Foster Wheeler 1997 AMC 1464 (Alas. Supr. Ct. 1997), where Alaska Civil Rule 82 was applied even to a maritime case, on the grounds that the "American Rule" was not necessary to the proper harmony and uniformity of U.S. admiralty law. See generally, Alan J. Tomkins & Thomas E. Willging, Taxation of Attorney's Fees: Practides in English, Alaskan and Federal Courts, 1986.


166 T.D. Rowe, Jr., "Study on Paths to a 'Better Way", supra, note 162 at pp. 851-852.


167 See, e.g., the Medical Injury Compensation Reform Act of 1975 in California (as amended), providing a sliding scale of 40% for the first $50,000, 33 1/3% for the next $50,000, 25% for the next $500,000 and 15% for any excess over $600,000. See Cal. Bus. & Prof. Code art. 6146 (1997).


168 See, e.g., the Code of Conduct for the Bar of England and Wales, sect. 28.8. The common law formerly prohibited contingency arrangements through the torts of champerty and maintenance. See Walpin, 1997 at p. 654. Although the rules against champerty and maintenance have been abolished in England, the arrangements remain illegal and unenforceable under the Solicitors Act 1974, U.K. 1974, c. 47, sect. 59(2)(b). In 1990, however, the Courts and Legal Services Act 1990, U.K. 1990, c. 41, sect. 58, permitted "conditional fee agreements", and the relevant statutory instruments were adopted in 1995, in the Conditional Fee Agreements Order 1995, SI 1995/1674 (replaced by the Conditional Fee Agreements Order 1998, SI 1998/1860) and the Conditional Fee Agreements Regulations 1995, SI 1995/1675. This legislation allows contingency fees, within certain limits, in the United Kingdom. The new rules have also been interpreted as permitting such agreements in respect of arbitral proceedings. See Bevan Ashford v. Yeandle Ltd. [1998] 3 All E.R. 238 (Ch.). In Australia, contingency fee agreements are unenforceable. See Tilbury & Luntz, supra, note 151 at p. 771.


169 See W.J. Lynk, "The Courts and the Plaintiffs' Bar: Awarding the Attorney's Fee in Class-Action Litigation" (1994) 23 J. Legal Stud. 185 at p. 209; Coffee, supra, note 133 at p. 1375.


170 See L. Brickman, "Contingent Fees Without Contingencies: Hamlet Without the Prince of Denmanrk?" (1989) 37 UCLA L. Rev. 29 at pp. 31-32; Coffee, supra note 133 at p. 1375. The monetary rewards of settling a class action "inventory" can be enticing for the plaintiffs' attorneys. One such "inventory settlement", for $190 million procured remuneration of $65 million for one of the firms representing plaintiffs. Even in individual mass tort litigation, it has been estimated that of every asbestos-litigation dollar, $0.61 is consumed by lawyers' fees, leaving only $0.39 for the plaintiff. See Institute for Civil Justice, Annual Report for April 1, 1990 to March 31, 1991 (the Rand Report).


171Supra, discussion surrounding note 112.


172 See the decision in Helfend v. Southern California Rapid Transit District 2 Cal.3d 1, 465 P.2d 61 (1970), where the court acknowledged that the recovery of the plaintiff under collateral source rule served to cover partially the attorney's fees he would be obliged to pay under the contingency fee arrangement.


173 Fleming, The American Tort Process, 1988 at p. 234.


174 In most civilian jurisdictions, a judge normally makes the final selection of witnesses to be examined and actually performs the examination. The advocates merely nominate the witnesses, although they may also suggest questions that should be asked. See Geoffrey C. Hazard, Jr., "Discovery and the Role of the Judge in Civil Law Jurisdictions" (1998) 73 Notre Dame L. Rev. 1017 at p. 1020. See also Andreas Lowenfeld, International Litigation and the Quest for Reasonableness. Essays in Private International Law, Clarendon Press, Oxford, 1996 at p. 140.


175 In the United States, depositions of parties may ordinarily be taken by lawyers as of right, under Federal Rules of Civil Procedure, Rule 30.


176Federal Rules of Civil Procedure, Rule 30(a).


177 See, e.g., the U.K.'s Supreme Court Act 1981, U.K. 1981, c. 54 at sects. 33(2) and 34(2) and (3), permitting third parties to be discovered either before or after the action commences. See also the Nouveau Code de procédure civile arts. 138-141 (France). German procedural law, on the other hand, affords no comparable provision permitting a non-party to be compelled to give evidence or produce documents. See generally Lowenfeld, supra, note 174 at pp. 141-142.


178Federal Rules of Civil Procedure, Rule 34(a), as amended in 1970 to repeal the "good cause" requirement.


179 Rule 26(b)(1) of the Federal Rules of Civil Procedure in the United States allows discovery to extend to "...any matter, not privileged, which is relevant to the subject matter involved in the pending action ... The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."


180 In most other common law jurisdictions, by comparison, information requested on discovery must relate to "material facts" set forth in the written pleadings of the parties. The time limits for its presentation are shorter and the rules of court define the scope of relevance more closely. See, for example, the United Kingdom's Rules of the Supreme Court, Order 18, rule 12 and Order 24 rule 2. See also Geoffrey Hazard, Jr., "From Whom No Secrets are Hid" in "Federal Practice and Procedure Symposium Honoring Charles Alan Wright", (1998) 76 Tex. L. Rev. 1665 at pp. 1679-1681. In some civilian countries, a party may not be compelled to produce a document if its content might expose him to liability, while in others a party may be compelled to produce a document only if the judge believes that it is the only evidence concerning the point at issue. Nor may any production occur unless the court believes the document will be probative of an issue of fact identified by the court itself. See Hazard, ibid. at p. 1681.


181 Mary K. Kane, Civil Procedure in a Nutshell, 4 Ed., West Publishing Co., St. Paul, Minn., 1996 at pp. 127-128.


182 329 U.S. 495 at p. 507 (1947).


183 Jack H. Friedenthal, "A Divided Supreme Court Adopts Discovery Amendments to the Federal Rules of Civil Procedure" (1981) 69 Calif. L. Rev. 806 at p. 818, reproduced in part in Geoffrey C. Hazard, Jr. & Jan Vetter, Perspectives on Civil Procedure, Little, Brown & Co., Boston & Toronto, 1987, pp. 152-155 at p. 154.


184 See discussion surrounding note 125, supra.


185 See in particular, Emmanuel du Pontavice, Le Statut des navires, Dalloz, Paris, 1980 and R. Rodière & E. du Pontavice, Droit maritime, 12 Ed., Dalloz, Paris, 1997.


186 See, e.g., Lord Diplock's comment about the "...wide-roving search for any information that might be helpful......" in British Airways Board v. Laker Airways Ltd.[1985] A.C. 58 at p. 78, [1984] 3 W.L.R. 413 at p. 419 (H.L.). See also the English judiciary's occasional criticisms of "fishing expeditions" caused by the American discovery system in decisions such as Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation [1978] A.C. 547 at p. 609, [1978] 2 W.L.R. 81 at p. 87 (H.L. per Lord Wilberforce). See also Radio Corporation of America v. Rauland Corporation [1956] 1 Q.B. 618 at p. 649 (per Lord Godard, C.J.).


187 Karen A. Feagle, in "Extraterritorial Discovery: A Social Contract Perspective" (1997) 7 Duke J. Comp. & Int'l. L. 297 at pp. 298 and 299, notes that most other countries regard American discovery practices as a "fishing expedition" and limit the scope of discovery to protect personal privacy. Other countries frequently see U.S. discovery as violating their sovereignty, territorial integrity and/or national security. See also Vincent Mercier & Drake D. McKenney, "Obtaining Evidence in France for Use in United States Litigation" (1994) 2 Tul. J. Int'l. & Comp. L. 91 at p. 93; G. Hazard, Jr., supra, note 180 at p. 1675. These objections have caused various States to enact "blocking statutes" in an effort to resist U.S. lawyers' and grand juries' discovery requests, particularly demands for documents in anti-trust cases. See Lowenfeld, supra, note 174 at pp. 151-156 for examples of such statutes and summaries of U.S. and foreign decisions examining their validity.


188 Walpin, 1997 at p. 649 claims that broad U.S. discovery practices account for the majority of litigation expenses in America. Lowenfeld, supra, note 174 at p. 144 observes that it is not unusual for each party in a major case in the U.S. to employ as many as twenty lawyers on discovery and pre-trial motions alone.


189 Lowenfeld, ibid. at p. 138.


190 454 U.S. 235 at p. 252, note 18, 1982 AMC 214 at pp. 225-226, note 18 (1981).


191 Paula W. Speck, "Forum Non Conveniens and Choice of Law in Admiralty: Time for an Overhaul" (1987) 18 JMLC 185 at pp. 185-186.


192Smith Kline & French Laboratories Ltd. v. Bloch [1983] 1 W.L.R. 730 at p. 733, [1983] 2 All. E.R. 72 at p. 74 (C.A. per Lord Denning, M.R.).


193 The popularity of suit in the U.S. is further demonstrated by one study of some 180 international cases dismissed on forum non conveniens grounds by U.S. federal courts from 1947 to 1980. The study showed that, once dismissed in America, almost none of the suits were litigated in the alternative forum, and only three went to trial and were lost. See David W. Robertson, "Forum Non Conveniens in America and England: A Rather Fantastic Fiction" (1987) 103 L.Q.R. 398 at p. 412, cited by Alexander Reus, "Judicial Discretion: A Comparative View of the Doctrine of Forum Non Conveniens in the United States, the United Kingdom and Germany" (1994) 16 Loyola L.A. Int'l. & Comp. L.J. 455 at p. 474.


194 W. Tetley, International Conflict, 1994 at pp. 798-803. In general, forum non conveniens is limited to common law jurisdictions, because the constitutions of many civil law countries prohibit courts from relinquishing their jurisdiction, although in some cases they may "stay" a suit. See Tetley, ibid. at p. 803. Note, however, that forum non conveniens is expressly permitted in Québec under art. 3135 of the Québec Civil Code 1991, enacted by S.Q. 1991, c. 64, in force January 1, 1994.


195 330 U.S. 501 (1947). See also Koster v. Lumbermen's Mutual Casualty Co. 330 U.S. 518 (1947).


196 The private interest factors are: a) the relative ease of access to sources of proof; b) availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; c) the possibility of views of the premises (where such views are appropriate to the action); d) all other practical problems that make trial of a case easy, expeditious and inexpensive. See Gulf Oil Corp. v. Gilbert, supra, at p. 508.


197 The public interest factors are: a) the administrative difficulties resulting from court congestion in the plaintiff's chosen forum; b) the local interest in having localized controversies decided at home; c) the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; d) the avoidance of unnecessary problems in the conflict of laws or in the application of foreign laws; and e) the unfairness of imposing jury duty on citizens in an unrelated forum. See Gulf Oil Corp. v. Gilbert, supra, at p. 509.


198 See, e.g, Piper Aircraft Co. v. Reyno 454 U.S. 235, 1982 AMC 214 (1981); American Dredging v. Miller 510 U.S. 443, 1994 AMC 913 (1994).


199In re Oil Spill by the Amoco Cadiz 1984 AMC 2123 (N.D. Ill. 1984), upheld 954 F.2d 1279, 1992 AMC 913 (7 Cir. 1992).


200 471 F.Supp. 473 at p. 475, 1979 AMC 1811 at p. 1812 (Judicial Panel on Multidistrict Lititgation 1979). The defendants sought to have the litigation transferred to the Tribunal de commerce de Brest and deposited a sizable sum in that court as security.


201 See Nancy J. Eskenazi, "Forum Non Conveniens and Choice of Law in Re: The Amoco Cadiz Oil Spill" (1993) 24 JMLC 371.


202 954 F.2d 1279, 1992 AMC 913 (7 Cir. 1992).


203 The International Convention on Civil Liability for Oil Pollution Damage 1969 (the "CLC Convention 1969"), adopted at Brussels, November 29, 1969 and in force June 19, 1975. See text in (1970) I.L.M. 45, 973 U.N.T.S. 3, U.K.T.S. No. 106 (1975), Cmnd. 6183. France became a party to the CLC Convention 1969 in 1975, three years before the Amoco Cadiz incident, pursuant to Decree No. 75-553 of June 26, 1975 (see Journal officiel de la République française, July 3, 1975 at p. 6716).


204 Examples of more recent forum non conveniens decisions resulting in dismissal or conditional dismissal of the related lawsuits are: Great Prize, S.A. v. Mariner Shipping Party, Ltd. 967 F.2d 157, 1993 AMC 72 (5 Cir. 1992); Su v. M/V Southern Aster 767 F.Supp. 205, 1990 AMC 1217 (D. Or. 1990), aff'd in pertinent part, 978 F.2d 462, 1993 AMC 207 (9 Cir. 1992), cert. denied 508 U.S. 906 (1993); Blanco v.Banco Industrial de Venezuela, S.A. 997 F.2d 974 (2 Cir. 1993); Amoco Oil Co. v. Philippe Martin & Associés 811 F.Supp. 253, 1994 AMC 1206 (S.D. Tex. 1993), aff'd without opinion, 998 F.2d 1013 (5 Cir. 1993); Evans v. Cunard Line Limited 1994 AMC 1948 (S.D. N.Y. 1994); Johnson v. Stolt Nielsen, Inc. 1995 AMC 2662 (D. N.J. 1994); Casco Marine Paints & Coatings, Ltd. v. M/V Leon 1996 AMC 1899 (D. Md. 1996); Santos v. Royal Cruise Line Ltd. 1996 AMC 773 (Cal. Super. Ct. 1995); Industria Fotografica Interamericana S.A. de C.V. v. M.V. Jalisco 903 F.Supp. 18, 1996 AMC 769 (S.D. Tex. 1995); Murray v. British Broadcasting Corp. 81 F.3d 287 (2 Cir. 1996); Buscio v. Carnival Corp. 1997 AMC 1250 (Cal. Super. Ct. 1997); Heera Industries, Ltd..v. AIU Ins. Co. 1998 AMC 1 (S.D. N.Y. 1997).


205Sangeorzan v. Yangming Marine 951 F. Supp. 650, 1998 AMC 260 (S.D. Tex. 1997).


206Mercier v. Sheraton International, Inc. 981 F.2d 1345 at p. 1350 (1 Cir. 1992), cert. denied 508 U.S. 912 (1993); Marriott v. Sedco Forex International Resources Limited 827 F. Supp. 59 at p. 69, 1993 AMC 2949 at p. 2962 (D. Mass. 1993); Bhatnagar v. Surrendra 52 F.3d 1220 at p. 1228, 1995 AMC 1716 at pp. 1726-1727 (3 Cir. 1995).


207 See, e.g., Marriott v. Sedco Forex; supra.


208 Examples are Louisiana under its Code of Civil Procedure, art. 123C and Texas under the Texas Civil Practice and Remedies Code, sect. 71.031, which, however, was remedied by the enactment of sect. 71.051, which now permits the invoking of forum non conveniens in wrongful death, personal injury and Jones Act cases filed after September 1, 1993.


209 46 U.S. Code Appx. sect. 688.


210 510 U.S. 443, 1994 AMC 913 (1994).


211 See the dissenting decision of Kennedy and Thomas, JJ., U.S. at pp 462-470, 1994 AMC at pp. 928-933. See also Thomas R. Anderson, "American Dredging Co. v. Miller: Clouding the Waters of Maritime Litigation" (1996) 59 Alb. L. Rev. 1579 Because of the majority decision, the forum non conveniens doctrine has been held inapplicable in state court actions in Louisiana and Texas even where few, if any, U.S. contacts have been involved. See Lejano v. K.S. Bandak 1995 AMC 1205 (La. Ct. App. 1995); Exxon Corp. v. Chick Kam Choo 881 S.W.2d 301, 1995 AMC 1792 (Tex. Supr. Ct. 1994).


212 See in particular Amchem Products Inc. v. British Columbia (Workers' Compensation Board) [1993] 1 S.C.R. 897 (Supr. Ct. of Can.).


213 See, e.g., Dennis v. Salvation Army Grace General Hospital Board (1997) 156 N.S.R. (2d) 372 (Nova Scotia Ct. App.), leave to appeal to Supreme Court of Canada denied, July 10, 1997, [1997] S.C.C.A. No. 158;

Craig Broadcast Systems Inc. v. Frank N. Magid Associates, Inc. (1997) 3 W.W.R. 509, (1997) 116 Man.R. (2d) 312 (Manitoba. Ct. App.); Georgetown Wire v. Gemini Structural Systems Inc. (1997) 200 A.R. 285 (Alberta Ct. App.); Schleith v. Holoday (1997) 31 B.C.L.R. (3d) 81, (1997) 86 B.C.A.C. 105 (British Columbia Ct. App.).


214 Art. 3135 of the Québec Civil Code 1991, enacted by S.Q. 1991, c. 64, in force January 1, 1994. See also Lamborghini (Canada) Inc. v. Automobili Lamborghini S.P.A. [1997] R.J.Q. 58 (Québec Ct. App.); N.M. v. S.S. [1996] A.Q. No. 4178 (Québec Ct. App.).


215 See, e.g., Sarabia v. The Oceanic Mindoro [1997] 2 W.W.R. 116, (1996) 26 B.C.L.R. (3d) 143 (British Columbia Ct. App.), leave to appeal to Supreme Court of Canada denied, May 22, 1997, [1997] S.C.C.A. No. 69; Can-Am Products and Trading Ltd. v. The Senator (1996) 112 F.T.R. 255 (Fed. Ct. of Can.); Donohue Inc. v. The Ocean Link (1995) 94 F.T.R. 69 (Fed. Ct. of Can.).


216 Donald J. Carney, "Forum Non Conveniens in the United States and Canada" (1996) 3 Buff. J. Int'l. L. 117 at p. 120 notes: "The phrase 'forum conveniens', in itself, better describes the Canadian process since the Canadian inquiry is geared less to a process of elimination and more towards an objective analysis."


217 Walpin, 1997 at p. 662.


218 An example is the toxic chemical disaster at the Union Carbide plant in Bhopal, India, in December 1984, in which 2300 residents were killed and more than 200,000 were injured. Over 500,000 claims were brought against Union Carbide Corp. in India, as well as 150 lawsuits in the U.S. on behalf of some 200,000 Indian claimants. All but three of those actions were ultimately dismissed on forum non conveniens grounds, in favour of Indian litigation. The U.S. actions were effective, however, inasmuch as in 1985, the Government of India, by an act of its Parliament, assumed the right to prosecute all claims arising out of the Bhopal incident. All claims were consolidated into a single action against Union Carbide in India, seeking some US $3 billion in damages. In February 1989, the action was settled by a payment to the Indian Government of some US $420 million on behalf of UCC and some US $45 million on behalf of Union Carbide of India, Ltd. See Connecticut Insurance Guaranty Association v. Union Carbide Corporation 217 Conn. 371 at pp. 376-377, 585 A.2d 1216 at p. 1219 (Supr. Ct. of Conn. 1991).


219 267 Ga. 339, 478 S.E.2d 123 (1996); on remand, 224 Ga. App. 238, 481 S.E.2d 7 (Ga. App. 1997)..


220 219 Ga.App. 660,. 466 S.E.2d 607 (Ga. App. 1995).


221 267 Ga. 339 at pp. 340, 341, 478 S.E.2d 123 at p. 124.


222Loucks v. Standard Oil Co. of New York 224 N.Y. 99 at p. 111, 120 N.E. 198 at p. 200 (1918 per Cardozo, J.); Cooney v. Osgood Machinery, Inc. 81 N.Y.2d 66 at p. 78, 595 N.Y.S.2d 919 at p. 922, 612 N.E.2d 277 at p. 284 (1993); Tetley, International Conflict, 1994 at p. 100.


223Alexander, supra, 267 Ga. at p. 341, 478 S.E.2d at p. 124.


224 65 N.Y.2d 189 at p. 202, 491 N.Y.S.2d 90 at p. 99, 480 N.E.2d 679 at p. 688 (1985), a holding approved in Cooney v. Osgood Machinery, Inc., 81 N.Y.2d 66 at pp. 78-79, 595 N.Y.S.2d 919 at p. 927, 612 N.Ed.2d 277 at p. 285 (1993). See also Reagan v. McGee Drilling Corporation 123 N.M 68 at p. 72, 933 P.2d 867 at p. 871 (N.M. App. 1997), cert. denied 122 N.M 808, 932 P. 2d 498 (N.M. 1997).


225 900 F.2d 83 (6 Cir. 1990), cert. denied 498 U.S. 941 (1990).


226Ibid., at pp. 88-89.


227 199 Mich. App. 81, 501 N.W.2d 567 (1993), appeal denied, 519 N.W.2d 158 (Mich. 1994), appeal denied 445 Mich. 863, 519 N.W.2d 158, reconsideration denied, 530 N.W.2d 745 (Mich. 1994).


228Ibid., 199 Mich. App. at p. 93, 501 N.W.2d at pp. 572-573.


229 958 F. Supp. 318 (E.D. Mich. 1997).


230Ibid. at p. 321.


231 64 Cal.App.4th 1257, 75 Cal. Rptr.2d 826 (Cal. App. 1998).


232Ibid., 64 Cal.App.4th at p. 1263, 75 Cal.Rptr.2d at p. 829.


233Ibid., 64 Cal.App.4th at p. 1264, 75 Cal.Rptr.2d at p. 831.


234 145 N.J. 478, 679 A.2d 106 (1996).


235Ibid., 679 A.2d at pp. 111-112.


236Ibid., at p. 110.


237Ibid. at p. 112.


238 [1994] 3 S.C.R. 1022.


239 See, e.g., Stewart v. Stewart (1997) 145 D.L.R. (4th) 228, (1997) 30 B.C.L.R. (3d) 233 (British Columbia Ct. App.); Bakker v. Van Asdrichem [1997] 5 W.W.R. 151, (1997) 30 B.C.L.R. (3d) 199 (British Columbia Ct. App.); Brill v. Korpaach Estate (1997) 148 D.L.R. (4th) 467, (1997) 52 Alta. L. Rep. (3d) 127 (Alberta Ct. App.), leave to appeal to the Supreme Court of Canada denied, December 18, 1997, [1997] S.C.C.A. No. 143; Michalski v. Olson (1997) 123 Man. R. (2d) 101 (Manitoba Ct. App.), leave to appeal to Supreme Court of Canada denied, May 14, 1998, [1998] S.C.C.A. No. 12.


240 See S. Symeonides, "Choice of Law in the American Courts in 1997" (1998) 46 Am J. Comp. L. 234 at pp. 272-273. See also Sutherland v. Kennington Truck Service, Ltd. 562 N.W.2d 466 (Mich. 1997); McKinney v. Fairchild International, Inc. 487 S.E.2d 913 (West Va. 1997); Cribb v. Augustin 696 A.2d 285 (R.I. 1997).


241 12 U.L.A. 56 (1997), first enacted in 1982. See Symeonides, ibid. at p. 272.


242 Arizona, California, Florida, Idaho, Louisiana, Massachusetts, Nebraska and New Jersey. See Symeonides, ibid. at p. 273 and authorities cited there.


243 818 F. Supp. 204 (W.D. Mich. 1993)


244Ibid. at p. 207.


245 110 F.3d 337 (6 Cir. 1997) (applying Tennessee's conflicts rules).


246Ibid. at p. 344.


247 169 Ill.2d 292, 661 N.E.2d 1138 (1996).


248Ibid., 169 Ill.2d at p. 300, 661 N.E.2d at p. 1142.


249Hanlan v. Sernesky (1998) 38 O.R. (3d) 479 (Ontario Ct. App.).


250 R.S.O. 1990, c. F.3.


251 1996 W.L. 310076 (N.D. Cal. 1996).


252Ibid., at *6. The Court, however, decided to apply Mexican, rather than California, law to the plaitniff's claim for the defective condition of the staircase, on the ground that Mexico had a stronger "sovereignty interest" in applying its own construction standards within its own borders. See ibid, at * 4.


253 925 S.W.2d 89 (Tex. App. 1996).


254Ibid., at p. 92.


255 [1994] 3 S.C.R. 1022, supra, note 238.


256 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963), on remand 40 Misc.2d 757, 243 N.Y.S.2d 715 (1963).


257Ibid., 12 N.Y.2d at p. 481, 240 N.Y.S.2d at p. 749, 191 N.E.2d at p. 283. For a decision similar to Babcock, see Kennedy v. Dixon 439 S.W.2d 173 (Mo. 1969).


258 16 N.Y.2d 120, 262 N.Y.S.2d 463, 209 N.E.2d 792 (1965).


259 18 N.Y.2d 289, 274 N.Y.S.2d 591, 221 N.E.2d 380 (1966).


260 24 N.Y.2d 569, 301 N.Y.S.2d 519, 249 N.E.2d 394 (1969).


261 484 S.W.2d 827 (Ky. 1972).


262Ibid. at p. 829.




264 For analysis and criticism of Foster v. Leggett by four eminent U.S. conflicts scholars (Reese, Sedler, Twerski and Weintraub), see "Symposium on Foster v. Leggett" (1972-73) 61 Ky. L.J. 368. See also E.F. Scoles & P. Hay, Conflict of Laws, 2 Ed., 1992 at pp. 588-589.


265 38 Wisc.2d 468, 157 N.W.2d 579 (1968).


266Ibid., 38 Wisc.2d at p. 477, 157 N.W.2d at p. 583.


267Ibid., 38 Wisc.2d at pp. 483-484, 157 N.W.2d at pp. 586-587.


268 295 Minn. 155, 203 N.W.2d 408 (1973).


269Ibid., 295 Minn. at p. 170, 203 N.W.2d at p. 417. On the "better law" theory, see also F K. Juenger, Choice of Law and Multistate Justice, Martinus Nijhoff, Dordrecht, 1993.


270 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454 (1972), appeal after remand 43 A.D.2d 109, 349 N.Y.S.2d 866 (1973). Chief Judge Fuld had suggested these rules in Tooker v. Lopez, supra, note 260.


271 The first rule is: "When the guest-passenger and the host-driver are domiciled in the same sate, and the car is there registered, the law of that state should control and determine the standard of care which the host owes to his guest." See 31 N.Y.2d at p. 128, 335 N.Y.S.2d at p. 70, 286 N.E.2d at p. 457.

The second rule is: "When the driver's conduct occurred in the state of his domicile and that state does not cast him in liability for that conduct, he should not be held liable by reason of the fact that liability would be imposed upon him under the tort law of the state of the victim's domicile. When the guest was injured in the state of his own domicile and its law permits recovery, the driver who has come into that state should not-- in the absence of special circumstances-- be permitted to interpose the law of his state as a defense. See 31 N.Y.2d at p. 128, 335 N.Y.S.2d at p. 70, 286 N.E.2d at pp. 457-458.

The third rule is: "In other situations, when the passenger and the driver are domiciled in different states, the rule is necessarily less categorical. Normally, the applicable rule of decision will be that of the state where the accident occurred but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants." See 31 N.Y.2d at p. 128, 335 N.Y.S.2d at p. 70, 286 N.E.2d at p. 458.


272 See E.F. Scoles & P. Hay, Conflict of Laws, 2 Ed., West, St. Paul, Minn., 1992 at pp. 619-620 at their note 10, comparing the Neumeier rules with art 10 of the Preliminary Draft Convention on the Law Applicable to Contractual and Non-Contractual Obligations of the European Union, (1973) 21 Am. J. Comp. L. 587 (now withdrawn) and art. 133 of the Swiss Federal Law on Private International Law of December 18, 1987, Bundesblatt 1988, I, 5.


273 For a relatively recent application of the first Neumeier rules, see Jean v. Francois 642 N.Y.S.2d 780 (S.Ct. 1996), where the New York Supreme Court applied Québec's no-fault automobile accident law, rather than New York law, to a traffic accident which occurred in New York involving parties domiciled in Québec.


274 See, e.g, Scultz v. Boy Scouts of America, Inc. 65 N.Y.2d 189, 491 N.Y.S2d 90, 480 N.E.2d 679 (1985) (personal injury action for sexual abuse and wrongful death); Cooney v. Osgood Machinery, Inc. 81 N.Y.2d 66, 595 N.Y.S.2d 919, 612 N.E.2d 277 (1993) (workers' compensation contribution action against employer) (these decisions imposed a public policy exception on the Neumeier rules) Bankers Trust Co. v. Lee Keeling & Associates, Inc. 20 F.3d 1092 (10 Cir. 1994) (negligence and negligent misrepresentation); Butkera v. Hudson River Sloop "Clearwater" Inc. 693 A.2d 520 (N.J. Super. Ct. 1997) (personal injury cruise-boat accident).


275 954 F. Supp. 111 (S.D. N.Y. 1997).


276ibid. at p. 112. On the "escape hatch" in the third Neumeier rule, see note 270.


277 See, e.g., Tuggle v. Helms 231 Ga. App. 899 at p. 901, 499 S.E.2d 365 at p. 367 (Ga. App. 1998), where the Georgia Court of Appeals noted, without deciding the point, that the trial court had ruled that Alabama's guest statute "...would contravene public policy in this case because Alabama's guest statute... would bar the Helmses [the plaintiffs] from a recovery."


278 134 N.J. 96, 629 A.2d 885 (1993).


279Ibid., 134 N.J. at p. 113, 629 A.2d at p. 894.




281Ibid., 134 N.J. at p. 100, 629 A.2d at p. 887.


282 66 F.3d 647 (3 Cir. 1995).


283Ibid. at p. 657.


284 See also Reichhold Chemicals, Inc. v. Hartford Accident & Indemnity Co. 703 A.2d 1132 (Conn. 1997), where the Supreme Court of Connecticut, using the Restatement Second and interest analysis, concluded that the pro-coverage law of Washington on timely notice of claims, which resembled the Connecticut lex fori, should be applied to an environmental insurance claim, rather than the pro-insurer provisions of the law of New York where the policy had been negotiated and issued. See also Param Petroleum Corp. v. Commerce & Industry Insurance Co. 686 A.2d 377 (N.J. App. 1997) which refused to apply foreign choice of forum and choice of law provisions in an environmental contamination insurance policy covering the New Jersey operations of a New Jersey insured, because they were unenforceable, in the light of New Jersey's interests in protecting not only the insured but also claimants who suffer damages as a result of the insured risks.


285 81 N.Y.2d 66, 595 N.Y.S.2d 919, 612 N.E.2d 277 (1993).


286 New York's legislation was amended in 1996, however, so as to preclude indemnification and contribution against the employer who has paid workers' compensation benefits. See Omnibus Workers' Compensation Reform Act, L. 1996, ch. 635 at sect. 90, cited in S. Symeonides, "Choice of Law in the American Courts in 1997" (1998) 46 Am. J. Comp. L. 234 at p. 267.


287Supra, note 271.


288 81 N.Y.2d 66 at p. 76, 595 N.Y.S.2d 919 at p. 925, 612 N.E.2d 277 at p. 283 (footnote 2 of the decision).


289 F. Juenger, "Babcock v. Jackson Revisited: Judge Fuld's Contribution to American Conflicts Law" (1993) 56 Albany L.Rev. 727 at p. 741 note 121. See also S. Symeonides, "Choice of Law in the American Courts in 1993 (and in the Six Previous Years)" (1994) 42 Am. J. Comp. L. 599 at p. 624: "This footnote may offer comfort to proponents of many other choice-of-law theories, such as those of professors Weintraub, Leflar and Juenger."


290 The Cooney decision was the subject of hypothetical "judgments" written by several noted American conflicts scholars (P. Borchers, L. Kramer, H. G. Maier, R. Weintraub, S.E. Cox, L.J. Silberman, and J.W. Singer). See "Conference on Jurisdiction, Justice, and Choice of Law for the Twenty-First Century: Case Four: Choice of Law Theory" (1995) 29 New Eng. L. Rev. 669.


291 See, for example, the Supreme Court of Canada's decision in Tolofson v. Jensen and Lucas v. Gagnon [1994] 3 S.C.R. 1022,which definitively established that lex loci delicti would be the principal choice of law rule in Canadian tort conflicts. The Court held (at p. 1058) that: "... it may be unfortunate for a plaintiff that he or she was the victim of a tort in one jurisdiction rather than another and so be unable to claim as much compensation as if it had occurred in another jurisdiction. But such differences are a concomitant of the territoriality principle. While, no doubt, as was observed in Morguard [Morguard Investments Ltd. v. DeSavoye [1990] 3 S.C.R. 1077], the underlying principles of private international law are order and fairness, order comes first. Order is a precondition to justice."

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