Grades are up
Bootstrapping in the First Restatement of Conflicts

Exclusivity and Concurrence

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. 

Under the First Restatement, it appears that only one sovereign has legislative authority over a particular transaction, even when the transaction straddles borders. For example, under the principle of lex loci delicti, the sovereign in whose territory the harm occurred has the exclusive power to determine the tortious nature of that harm, even when the act causing the harm occurred outside the sovereign’s borders.  

Compare this to the theory of adjudicative authority over a defendant under Pennoyer v. Neff. Under Pennoyer,  only the sovereign where a person is then located has the power to initiate (in personam) adjudicative authority over her.  To be sure, having acquired personal jurisdiction by proper service of process on the defendant within its borders, the sovereign retains the power to enter a binding judgment against her even when she is no longer present.  Thus a person served in two states in connection with two lawsuits would find herself subject to overlapping adjudicative authority. But the power to initiate adjudicative authority at a particular time is possessed by one sovereign alone. Under the common law, even the sovereign where the defendant is domiciled is unable to initiate such authority if she is outside its borders. 

Later we'll discuss the rise of theories of concurrent legislative jurisdiction under Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493 (1939). Here there are analogies with the rise of concurrent in personam adjudicative jurisdiction under International Shoe Co. v. Washington, 326 U.S. 310 (1945).

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