Crisis, Chaos, and Confusion in Conflict of Laws

Some years ago Dean William Prosser, famous for his extensive writing in the field of torts, made the following pronouncement. “The realm of conflict of laws is a dismal swamp filled with quaking quagmires and inhabited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon.” Mr. Justice Cardozo is also credibly reported to have said that “the average judge, when confronted by a problem in conflict of laws, feels almost completely lost and like a drowning man will grasp at a straw.”

I hope you will all agree with me that these are entertaining but gross exaggerations. I look back upon the experience of studying conflict of laws as a fascinating and rewarding one. It satisfied one’s desire to deal with weighty matters for its problems concerned the conflicting claims of nations to enforce their laws for the protection of their citizens. Besides having international significance, it involved the workings of the federal system in the accommodation of the laws and policies of the different states. Its keynote was uniformity and simplicity; judges, with the help of professorial and student commentation, were working to build a system of principles which would produce the correct decision of every case, wherever it might be litigated. Most of these principles were very old, having been developed by famous European scholars of earlier centuries with resonant and romantic names such as BartoIus, D’Argentre, Dumoulin, Boullenois. They were supposed to contain the distilled and crystalized wisdom of these great men and many others. Their antiquity and respectability were demonstrated beyond question by the fact that they contained many Latin phrases. Thus all question of liability for torts (delicta) were to be decided by the lex loci delicti commissi. Transfers of real property or, better still, immobilia, were to be governed by the lex rei sitae. As for transfers of personal property, the entire rule was in Latin, mobilia sequuntur personam.

Every play must have its villain and the villains of the conflicts course of my youth were narrow-minded judges who would not follow the grand old Latin maxims but insisted on following the law of the forum (lex fori). In doing this they sometimes said that the foreign law was against the public policy of the forum; to use this escape device was considered deplorably parochial and provincial. How could the great goal of harmonious uniformity be achieved if judges violated the ancient maxims and applied their local laws? Had not the famous Mr. Justice Cardozo said, “We are not so provincial as to say that every solution of a problem is wrong because we deal with it differently at home.” This was generally taken to mean that in choosing laws, one state’s law should be considered as good as another’s or, at any rate, no worse than another’s.

Another deplorable escape device in the old system was the doctrine that courts should follow the forum’s law in matters of procedure. Since procedure was a vague term with a long history in the law, it was possible for judges to stretch it a bit when they wanted to follow their home-state law. This practice was likewise criticized and discouraged by the great teachers and commentators.

I suppose you have all discovered that though conflict of laws seems very important in law school, litigated cases are, in practice, relatively rare. I have never heard of a practitioner who specialized in conflict of laws but if there were one, he would be like an astronomer whose specialty was a planet that appeared only at intervals of ten years. Since judges and practitioners have less direct experience in this area, they are inclined to rely more heavily on the writings of academic commentators. This circumstance excited my ambition as a young law teacher and I resolved to become such a commentator. After six years of toil by the midnight oil, I published, in 1942, a hard-cover monograph entitled Torts in Conflict of Laws. Naturally, throughout its pages, I emphasized the great importance of following the lex loci delicti commissi to achieve the shining goal of uniformity which would be nation-wide and someday, hopefully, world-wide.

Crisis, Chaos, and Confusion in Conflict of Laws
Remarks delivered by Professor Moffatt Hancock, Marion Rice Kirkwood Professor of Law, at the charter meeting of the Stanford Law Society of Utah, March 12, 1966

Alas! Today it is my melancholy task to inform you that during the last ten years the grand old system of traditional principles with their stately Latin phrases has almost completely broken down. Several leading courts have refused to follow the lex loci delicti commissi and have gone off at curious tangents upon strange frolics of their own.

It all began, like a cloud no bigger than a man’s hand, with a case decided by the Supreme Court of California. Two Californians had the misfortune to collide upon the highway; both were injured, and the one apparently responsible for the collision eventually died. Suit was brought against his estate by the other party. Possibly the real defendant in interest was an insurance company, but on this point the report is silent. Though the plaintiff and the decedent were both Californians, the collision had occurred in Arizona and under the Arizona common law the death of a tortfeasor extinguished his liability. The Supreme Court of California refused to apply this archaic Arizona law although it was the lex loci delicti commissi. As an escape device, they held that the Arizona law extinguishing liability was merely a “rule of procedure.” The importance of securing uniformity by careful adherence to the lex loci delicti was entirely overlooked. The court apparently did not realize that one state’s law should be considered as good as another’s in choice cases.

Commentators were shocked by the decision and a barrage of learned criticism broke forth. Some years later Chief Justice Traynor who wrote the opinion, discussing the case in a law review article, explained the real ground of the decision. He said that the obvious purpose of the Arizona common law rule was to protect the estates of deceased tortfeasors against damage claims for the benefit of their heirs or testamentary donees. The court saw no reason for applying this policy to the case of a dead tortfeasor domiciled in California where that policy had been rejected by the legislature. Let the Arizona law protect the estates of deceased Arizona tortfeasors; it should not be extended to the case of two Californians. As for the ancient principle that the case should be governed by the lex loci delicti commissi, Chief Justice Traynor referred to it and the other grand old Latin rules as “a petrified forest.” Orthodox commentators were horrified, but the worst was yet to come.

Even as Chief Justice Traynor uttered these shocking words, rebellion against the traditional system was rearing its ugly head in Wisconsin. Under the law of that state, a wife injured by her husband’s negligent driving had a cause of action against him so that his insurer would have to pay all her medical expenses plus consolation money for pain and suffering. But under the laws of the states surrounding Wisconsin, the husband was not liable for damages and the wife got nothing – a harsh result, which insurance counsel defend on the smugly prudential ground that otherwise husbands and wives would conspire to cheat the insurers. Back in 1931 the Supreme Court of Wisconsin had to decide what should be done when a wife domiciled with her husband in Wisconsin was injured by his negligent driving in one of the surrounding states. In the famous case of Buckeye v. Buckeye, which some of you may have studied in law school, the Wisconsin court pledged its allegiance to the lex loci delicti commissi and following that law refused to permit the Wisconsin wife to recover.

In the course of time, Wisconsin judges and lawyers became dissatisfied with the rule of this case, which deprived Wisconsin wives of their usual recovery merely because they had been injured outside their home state. In one case the suggestion was thrown out that the law of the state of injury might be presumed to be the same as Wisconsin’s, but this obvious legal fiction did not satisfy the judges. In a later case they used the escape device of holding that the foreign law barring suit was merely a rule of procedure. Finally, in 1959, they overruled the Buckeye case along with six similar cases; they rejected the lex loci delicti commissi because they said it discriminated against Wisconsin wives.

This decision came to me as a rude and unpleasant surprise; it has been a source of considerable embarrassment ever since. For discussing the Buckeye case in my book in 1942 I had written that while it might well have gone the other way, it ought to be followed in the future for the sake of uniformity and stability. Apparently the Supreme Court of Wisconsin was more interested in Wisconsin wives than in the great interstate and international goal of uniformity.

Having once tasted the red meat of rebellion the Wisconsin judges next proceeded to reject in its entirety the age-old supremacy of the lex loci delicti commissi. Half a century ago, when the automobile was beginning to establish its leadership as a source of litigation, many state legislatures passed laws designed to reduce drastically the liability of host-drivers to nonpaying guest passengers. These laws were defended on the curiously inconsistent grounds that (1) the host driver ought not to be saddled with liability for the results of an act of kindness; (2) if the host had insurance he would probably conspire with the guest to defraud his insurer. The only practicable solution was to make the guest bear the loss. Wisconsin, New York, and a few other state legislatures resisted the pressures of the insurance lobby and refused to enact such a law. In 1965 the Wisconsin Supreme Court was confronted by the problem of a guest and host both domiciled in Wisconsin, and negligent driving by the host in Nebraska causing injury to the guest. Nebraska law would have barred the guest’s recovery. the court took the same line that Chief Justice Traynor took in his article: because the Nebraska law was designed to protect Nebraska host-drivers and their insurers there was no reason to apply it to a case of two Wisconsinians and their Wisconsin insurer. Noting that the venerable principle of resort to the lex loci delicti had come down from the days of the ox-cart and the sailing ship, the court renounced it forever in favor of a more flexible approach based on a consideration of the policies of the respective state laws.

California and Wisconsin have not been the only hotbeds of revolt against traditional choice of law doctrine. The poisonous heresy has spread to such respectable older states as New Hampshire, New York, and Pennsylvania. The New York cases have been especially alarming. Two years before Wisconsin renounced the lex loci delicti doctrine in the guest statute case, New York had, in a similar case, taken the same heretical position.

Prior to that the New York Court of Appeals had refused in the notorious Kilberg case to follow a Massachusetts statute limiting the damages for wrongful death to $15,000. Back in the days when railroad trains had no brakes and steamboats raced against one another, the death toll of travelers and transportation employees ran so high that state legislatures were under considerable pressure to enact laws limiting the amount a jury might award for wrongful death. At one time the New York legislature enacted such a limitation, but the feeling against it became so strong that it was abolished and in 1894 a perpetual injunction against such limitation laws was written into the New York constitution.

In the Kilberg case a New York citizen who had bought a ticket on an airline operating there was killed when his plane crashed in Massachusetts. His dependents claimed damages of $150,000; Massachusetts law would give no more than $15,000. Branding the Massachusetts law as “anachronistic,” the New York Court of Appeals refused to follow it. They took advantage of the two standard escape devices: the Massachusetts rule, they said, was merely a rule of procedure and in any case it was contrary to New York’s public policy. Lawyers and judges who had been trained in orthodox choice of law principles and remembered Cardozo’s stirring denunciation in the same court of narrow provincialism were deeply disturbed. At one time a federal court of three judges refused to follow the Kilberg case on the grounds that it was unconstitutional, but the Second Circuit Court of Appeals decided that this was an untenable position. The New York decision was shocking to the orthodox but not unconstitutional.

It is no exaggeration to say that choice of law doctrine today is in a state of chaos and confusion. The courts have gone too far to retreat; all hope for uniformity and harmony has been destroyed; all hope for simplicity and predictability is gone; no man can tell what the morrow may bring. Worst of all, our books will have to be rewritten and this, of course, includes mine.

How happy I was in the bygone days when I could proudly refer in my classroom to “my little book on torts.” Or sometimes I would coyly remark, “You might be interested in looking at a little monograph on torts, written, if I may venture to say so, by myself.” But those days are gone forever. Now I am subjected to indignity and embarrassment, for I must tell my students: “I have written a book, but please don’t read it. It’s outmoded and outdated. It’s an antique.”