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January 2014

Stern's Response

James Stern kindly responded to my musings. Since his comments are so thoughtful, I thought I'd give them their own post:

For my own part, I am inclined to think it’s is generally best to have a conflicts rule that seeks to validate wills (or their attempted revocation).  But the real question here is who decides?  Should the adjudicating court supply the conflicts rule it thinks best or should it apply the conflicts rules of the situs?  The whole premise of conflict of laws is that the forum will sometimes supply someone else’s contrary view of the best way to resolve the case.  So it’s not enough just to say, we want to uphold the will, etc.  We also have to conclude that the decision is one that we should make and not someone else.  As you know, I’m alluding here to the doctrine of renvoi.

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Still a problem

Still having a problem. When most of your traffic is coming from Asia, you know something is going wrong. I have now moved over to the secure version of statcounter, which is where the problem seems to be coming from.


Apparently both this blog and my William and Mary page were hacked (via my traffic counter). It looks like it was intended to add traffic to some guitar practice site - which I won't name so they won't get any extra traffic that way. Don't know how long it was going on, but it didn't appear to do anything else to you or me. It's fixed.

Is Property Different?

My new colleague James Stern—in a paper entitled “Property, Exclusivity, and Jurisdiction” that will be coming out in the Virginia Law Review (sorry, can’t find it online)—argues that choice of law is different concerning property, precisely because of the in rem character of property rights: the fact, as they say, that such rights are good against the world. This in rem character puts an informational burden on people that requires that property rights be highly standardized and identifiable at very low informational cost. And that carries over to choice of law. Complicated choice-of-law analysis, such as that required under modern approaches, may work for contract or tort, but not for property. We need the First Restatement’s law-of-the situs rule, even if, as interest analysts are fond of arguing, the situs state may not in fact be interested in its law applying.

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Bootstrapping in the First Restatement of Conflicts

This is brief recap of the general problem in the First Restatement that I pointed out in class. The triggering fact, which identifies the law that applies to a transaction, is generally itself a legal fact. In determining that fact one that must therefore presume some background law. This is clearly a problem with the validity of contracts. The law of the place of contracting determines a would-be contract's validity, but the place of contracting is itself a legal question.

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