Overview[ edit ] Characterisation is one of the key element in demarcating the choice of law and jurisdiction issues. The first stage is for the court to determine if it has jurisdictionif appropriate, to avoid forum shopping.
For example, a dispute regarding property would be decided by the law of the place the property was located. For example, suppose State X has a rule that says that if property located in State X is conveyed by a contract entered into in any other state, then the law of that other state will govern the validity of the contract.
Suppose also that State Y has a rule that says that if a contract entered into in State Y conveys property located in any other state, then the law of that other state will govern the validity of the contract. If a lawsuit arising from that transaction is brought in State X, the law of State X requires the courts of that state to apply the law of the state where the contract was made, which is state Y.
However, the courts of State X might note that a court in State Y would apply the law of State X, because that is where the land is located, and the law of State Y follows the land. In this example, they would insist that the only law the courts of State X should look at is the law of contracts of State Y, not the "whole law" of State Y, which includes that state's law governing choice of law.
The basic criticism of renvoi is that it can lead to an endless circle.
In the above example, it could be argued that if the law of State Y points back to State X, then the law of State X would only once again require application of the law of State Y, and so forth and so on without end. Significant contacts test[ edit ] The significant contacts test evaluates the contacts between the states and each party to the case, and determines which state has the most significant contacts with the litigation as a whole.
This test has been criticized for failing to respect the sovereignty of the state in which the cause of action arose, and because courts can tip the balance in one way or another in deciding which contacts are significant.
Seat of the relationship test[ edit ] The seat of the relationship test specifically examines the relationship between the parties to the lawsuit, and uses the law of the state in which the relationship between the parties was most significant.
For example, if two people who live in State X meet and develop a relationship in State Y, and a cause of action arises between them while they are traveling through State Z, a court of any state applying this test would probably apply the law of State Y, because that state is the seat of the relationship between these two parties.
Balance of interests test[ edit ] The balance of interests test examines the interests of the states themselves, and the reasons for which the laws in question were passed.
It is the brainchild of University of Chicago law professor Brainerd Curriewho outlined the doctrine in a series of articles from the s and 60s.
Under this form of analysis, the court must determine whether any conflict between the laws of the states is a true conflict, a false conflict, or an unprovided-for case.
A true conflict occurs when one state offers a protection to a particular party that another state does not, and the court of the state that offers no such protection is asked to apply the law of the state offering the protection. For example, suppose A, lives in State X, which has no cap on tort damages for injuries received in an auto accident.
While traveling through State X, B causes an auto accident in which A is seriously injured. In this situation, it can be argued that State X has chosen to place no limit on recovery in order to protect its citizens and keep its roads safer; while State Y has chosen to place a limit on tort damages to prevent tort abuse and keep insurance costs down.
Therefore, State X's law protects its plaintiffs, and State Y's law protects its defendants - the laws serve opposite purposes, but each state has an interest in its own law being applied, to advance its own purposes.
In such a case, if the interests are balanced, the law of the forum will prevail. A false or apparent conflict occurs when the state offering the protection has no actual interest in the endorsement of that protection against the particular parties to the case.
For example, some states prohibit spouses from suing one another for negligent torts, in order to prevent them from colluding in order to collect from insurance companies. Other states permit such suits, on the theory that people should be able to recover for their injuries, and possible collusion can be presented as a factor for the jury to deal with.
Suppose that a couple, A and B, live in state X, which prohibits these suits, and they travel to state Y, which permits these suits. While in state Y, A negligently injures B, and upon their return to state X, B sues A in the court of state X, asserting that the law of state Y should govern.
In this case, since neither party is from state Y, state Y has no interest in the application of the law to these persons. An unprovided-for case is one in which each party is seeking to apply the law of the other state.
For example, suppose State X has a law that limits recovery in a tort suit, and state Y has no such limit. A plaintiff from State X suing a defendant from State Y will want the rule of State Y to apply rather than the limit imposed by state X; the defendant will want the State X's limit to apply.
In such a case, the law of the forum will prevail. Some courts have sought to distinguish different types of law, giving more weight to laws of foreign states that are intended to regulate conduct e.
Comparative impairment test[ edit ] The comparative impairment test asks which state's policies would suffer more if their law was not applied. This is similar to interest analysis, in that the interests of the state are taken into account - however, this test does not look to see which state benefits more from the application of its laws, but rather for situations in which the other state's interests will actually be harmed by the application of the laws of the forum state.SELECTED ESSAYS ON THE CONFLICT OF LAWS by Currie, Brainerd.
Durham: Duke University Press, Hardcover. Octavo; G/no DJ; Hardcover w/out DJ; Spine, black with gold print; Boards in black cloth with gold print, spotting/smudging, mild bumps to outside corners and spine caps; Textblock has shaken binding, spine break at title page, creasing to rear endpapers, mild spotting to top and .
developed and refined by the late Professor Brainerd Currie.2 From the first page to the last, the casebook bears the mark of his 2 See B.
CURRIE, SELECTED ESSAYS ON THE CONFLICT OF LAWS () [hereinafter cited as SELECTED ESSAYS]. BOOK REVIEWS SELECTED ESSAYS ON THE CONFLICT OF LAWS. By Brainerd Currie.1 Durham, North Carolina: Duke University Press, Pp. x, The . Brainerd Currie’s Contribution to Choice of Law: Looking Back, Looking Forward better than BRAINERD CURRIE, SELECTED ESSAYS ON THE CONFLICT OF LAws (), a book 4.
See JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS, FOREIGN AND DOMESTIC (). 5. The territorial principle, that the laws of a state have force within its borders and. Currie, Brainerd Selected Essays on the Conflict of Laws. Durham, N.C.: Duke Univ. Press. Ehrenzweig, Albert A. A Treatise on the Conflict of Laws.
St. Paul, Minn.: West. → The first part is a revised edition of a work first published in as Conflict of Law. Currie, Brainerd Selected Essays on the Conflict of Laws.
Durham, N.C.: Duke Univ.
Press. Ehrenzweig, Albert A. A Treatise on the Conflict of Laws. St. Paul, Minn.: West. → The first part is a revised edition of a work first published in as Conflict of Law.