Still a problem
Renvoi and the Situs Rule

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.

And here’s the thing about property.  The “in rem” quality of property rights and title questions, with the significant informational burden it places on various sorts of third parties, makes it especially important to have a single answer to questions involving property claims.  You don’t want to have title clouded by the possibility that different jurisdictions will apply different legal standards.  The situs rule represents a very effective strategy for ensuring this kind of uniformity and avoiding a situation where title to property turns on the forum of litigation.  The situs rule is intuitive, it’s simple to apply, and it has proved remarkably stable over time.  So the real question is whether the forum state should feel free to resolve the case differently than the situs—the state where records of title are kept and which is generally charged with making conclusive determinations of how claims to finite resources have been allocated.  And on that score, I think there’s a lot to be said for a policy of having the forum resolve the case just as the situs would.

Nevertheless, if you’re suggesting the case for the situs rule is weaker in the inheritance context than elsewhere, I think you’re right, largely because it results in an in rem judgment and also, crucially, that judgment isn’t simply the resolution of potentially long-standing preexisting claims on the property.  It’s still unsettling to have to admit foreign legal judgments applying foreign legal standards into the analysis in evaluating claims to situs property, but maybe that’s something we can live with.  So let’s just assume the special need for uniformity we see with property questions in other contexts doesn’t arise when it comes to probate determinations. 

Even then, we have to be careful about making exceptions to the situs rule.  The situs rule functions as well as it does precisely because it is so “monolithic,” as one of its critics has put it.  Each deviation from the rule muddies the message it sends, and since the clarity of the message is the situs rule’s signal virtue, that’s a big problem.  This is especially so since the situs rule seems to be grounded in a kind of principle or conceptualism (again, ironically, one of the things for which the rule has been criticized).  The “dogma” or axiom that the state where property is located has unique authority over title to the property helps keep the rule in place, and its dogmatic quality weighs against the creation of exceptions.

We should be clear that, in principle, determining the effect of an exception to the situs rule on its overall stability is an empirical issue.  But the empirics are very hard to measure in any kind of a rigorous way, and in practice the question really comes down to one of judgment, experience, and intuition.  In my view, at least, there’s a serious risk that a little nip in the situs rule here or there could ultimately unravel the whole sweater, or at least end up putting some real holes in it.  The chaos that reigns elsewhere in conflict of laws is pretty good evidence that this is not a risk to be taken lightly.  I think the burden is on the advocates of departing from the situs rule here to demonstrate both a serious need for something else and that the costs to uniformity would not be too great.  I haven’t seen the case made.

Anyway, those are my thoughts.  In a nutshell, uniformity is very important and I think it’s dangerous to go tinkering with the situs rule.  But the crucial thing to remember is that we’re doing, or should be doing, renvoi here—the point is not that situs law invariably has to be used, although uniformity does counsel in favor of doing so in most cases, but that all states should resolve the dispute the same way, and the way to get them to coordinate in this way is for them all to use situs conflicts rules, i.e., to do renvoi.


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