My next two posts are on a massive and wide-ranging article by Ernest Young (brought to my attention in Larry Solum’s blog) in which he responds to my reading of Erie. In this post I wanted to discuss just how much Young and I agree on the deep structure of the constitutional argument in Erie (something that one might not recognize from reading Young’s article).
Conflict of Laws
I’ve been working on sending out a paper this season and so have been a negligent blogger. But I wanted to (finally) respond to some of James’s comments. It is useful to distinguish between a non-situs state perspective and the perspective of the situs state. James is arguing that a non-situs state court should adopt a renvoi approach—that is, make the choice-of-law decision that a situs state court would. The puzzle is that precisely in the circumstances where the non-situs state court has a reason to adopt renvoi (that is, when its judgment purports to be in rem), it should dismiss for lack of jurisdiction. It is true that if it is set on making a judgment in rem, it should decide as a situs state court would. But it shouldn’t really be in the business of making such a judgment at all. On the other hand, if its judgment won’t interfere with the in rem quality of the property, who needs renvoi?
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.
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.
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.
We are one week into the Conflict of Laws, and I wanted to post a bit about something that I mentioned briefly and rather cryptically in class. This was an analogy I drew between the First Restatement approach to the conflict of laws and personal jurisdiction under Pennoyer v. Neff.