A Baffling Characterization Decision
Characterization plays an important role in a court’s choice-of-law analysis. If an issue is characterized as a “contracts” issue, then the court will apply the choice-of-law rule for contracts to determine the governing law. If an issue is characterized as a “torts” issue, then the court will apply the choice-of-law rule for torts. Because the…
Continue ReadingUsing TLB to Teach Conflict of Laws
This post continues our series explaining how professors can use resources on TLB to teach various classes. Previous posts have discussed Transnational Litigation, Civil Procedure, and International Business Transactions. This post discusses Conflict of Laws. All of these posts are accessible at our new Teaching Resources page. Primers and Topic Pages The field of conflict…
Continue ReadingTransnational Litigation Anticipation: Previewing the Court’s Next Term
TLB recently recapped the Supreme Court’s transnational litigation cases from last Term. This post looks ahead to the upcoming Term, for which the Court has already granted certiorari in a personal jurisdiction case that may have implications for transnational litigation. TLB is also tracking several interesting petitions for certiorari in disputes involving the Foreign Sovereign…
Continue ReadingWho Owns the Ferrari F50?
The Ferrari F50 is, by all accounts, a pretty amazing car. One website describes it as the “ultimate showcase of the infamous Italian marque” and “one of the most sought-after driving machines in the world.” Only 349 were ever made. Just last year, a Ferrari F50 sold at auction for roughly $3.8 million. All of…
Continue ReadingWhen Should Federal Common Law Govern Transnational Litigation?
The conventional wisdom is that transnational litigation “can trigger foreign relations concerns.” Because the federal government has primary responsibility for the United States’ relations with other nations, the question naturally arises whether federal law should govern such litigation even when neither a federal statute, nor the U.S. Constitution, nor a treaty is applicable. Currently, as…
Continue ReadingA Primer on State Law in Transnational Litigation
[Editors: This post is one in a series of Primers on topics in transnational litigation. Primers on each of the topics listed in the Topics menu are planned, and some already appear on the relevant topic pages.] The procedural and substantive rules that U.S. courts apply in transnational litigation come from many sources, including the…
Continue ReadingSide-Stepping the Dismal Swamp: A Reply to Roosevelt
In a recent post, we sought to call attention to what we see as two issues with the way the draft Restatement (Third) of Conflict of Laws embraces a specific theory of choice of law called the “two-step” approach. First, we suggested that there is a disconnect between the “two-step” approach and the Restatement’s black…
Continue ReadingExtraterritorial Jurisdiction and Conflict of Laws
In a forthcoming Article, I take the Supreme Court’s recent jurisprudence on the presumption against extraterritoriality and view it through the lens of conflict of laws. In so doing, I attempt to show how the presumption mirrors features of conflicts doctrine and makes some of the same mistakes conflict law already has made. This list…
Continue ReadingWhat the Restatement Actually Says: A Response to Brilmayer and Listwa
In a recent post, Lea Brilmayer and Dan Listwa argue that there is a contradiction in the draft Restatement (Third) of Conflict of Laws, for which I am the Reporter. They claim that the Restatement’s two-step model for choice of law is in fundamental conflict with its statement of blackletter rules, and they argue instead…
Continue ReadingA Theory-Less Restatement for Conflict of Laws
For the first time in over half a century, the American Law Institute (“ALI”) is drafting a new Restatement of Conflict of Laws. The world has changed a great deal since 1971 when the Restatement (Second) was published, growing far more interconnected—so the idea of a new Restatement, taking into account the last few decades…
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