The American Choice-of-Law Revolution in the Courts: Today and Tomorrow.

• Author: Glenn, H. Patrick
• Position: Book review

Symeon C. Symeonides, The American Choice-of-Law Revolution in the Courts: Today and Tomorrow (2002) 298 Recueil des Cours. Pp. 448.

Unlike the European Union, where a common market is seen as necessarily entailing the harmonization of laws, the North American free trade area assumes ongoing legal diversity amongst participating countries. Informal convergence is of course possible, and the dynamic of NAFTA has contributed to this, but there is no mechanism, in place or foreseen, for eliminating so-called conflicts of laws or harmonizing the treatment of them. Europe, in contrast, has implemented major instruments of harmonization of rules of jurisdiction, recognition of foreign judgments, and choice of law in matters of contract, and is now well on the way to formulation of uniform rules for conflicts in matters of tort and delict. (The Rome II proposals for a pan-European regulation are now going through the legislative process.) The contrast with North America is particularly striking in these fields since, given the number of North American jurisdictions and volume of case law, it is even difficult to know what is going on in North America, let alone think of eventual uniform rules.

The underlying diversity of North American law is made manifest by the remarkable volume which Professor Symeonides has contributed to the Hague Academy of International Law on the so-called "American revolution" in matters of choice of law. Known both for his work in codifying choice of law rules in Louisiana, Puerto Rico, and Oregon, and for his annual survey in the American Journal of Comparative Law of some 1,500 U.S. conflicts cases per year, Professor Symeonides here provides a splendid overview of all that has gone on in U.S. conflicts law since 1963. That was the year of Brainerd Currie's famous statement that "We would be better off without choice-of-law rules" (1) and of the decision of the New York Court of Appeals in Babcock v. Jackson, (2) which rejected the lex loci delicti in matters of tort in favour of application of the law of the state with the greatest interest in the particular issue raised by the case. Much has been said of the ensuing "revolution" but it is striking, and indicative of current diversity, that the "traditional" lex loci delicti rule still prevails in ten states and that this group of states is the second largest in terms of adherence to a particular conflicts methodology, surpassed only by those states--twenty-two in...