Faculty Journal Articles and Book Chapters

Abstract

This Article coins the term “absolute conflicts of law” to describe situations of overlapping laws from different states that contain simultaneous contradictory commands. It argues that absolute conflicts are a unique legal phenomenon in need of a unique doctrine. The Article extensively explores what absolute conflicts are, how they qualitatively differ from other doctrines like true conflicts of law, act of state, and comity, and classifies absolute conflicts’ myriad doctrinal manifestations through a taxonomy that categorizes absolute conflicts as procedural, substantive, mixed, horizontal, and vertical.

The Article then proposes solutions to absolute conflicts that center on the rule of law and fairness to parties — solutions that are in methodological tension with prevailing tests that preference largely if not exclusively state interests. The fairness test the Article advances pulls from considerations courts have been quietly developing over the past few decades and reorients absolute conflict analysis around these considerations. It concludes by showing that a fairness test generates better outcomes for parties, states, and the international legal system generally, not only by better conforming to the rule of law but also by better facilitating transnational activity beneficent to overall welfare.

Publication Title

Indiana Law Journal

Document Type

Article

Keywords

conflict of laws, jurisdiction, foreign sovereign compulsion

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.