Ehrenzweig, Albert A.

English

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Buffalo Law Review Volume 16 Number 1 The Common Law and the Civil Law: Some Encounter, Influences and Comparisons—Essays in Honor and Memory of Arthur Lenhoff (1885-1965) Article 6 10-1-1966 Local and Moral Data in the Conflict of Laws: Terra Incognita Albert A. Ehrenzweig University of California, Berkeley Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Conflict of Laws Commons Recommended Citation Albert A. Ehrenzweig, Local and Moral Data in the Conflict of Laws: Terra Incognita, 16 Buff. L. Rev. 55 (1966). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol16/iss1/6 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. LOCAL AND MORAL DATA IN THE CONFLICT OF LAWS:TERRA INCOGNITAALBERT A. EHMENZWEIG*SPOUSES John and Mary Doe, domiciliaries of the state of Domicilium, areinvolved in an automobile accident in the state of Delictum. Mary sues Johnin Delictum for injuries sustained as a result of John's careless driving. Inaccord with the Second Restatement of the Conflict of Laws1 and recent judicialauthority,2 the Delictum conflicts rule calls for the application of the law ofDomicilium which has maintained the common law rule of interspousal im-munity. John, however, fails to plead that law and the court of Delictum admitsthe suit under its own statute which has abolished the immunity rule. Thecourt thus ignores, properly I believe,3 a presumably "applicable" foreign ruleas not relied on by either party. Can it properly do so with regard to all un-pleaded foreign rules?The answer is dearly in the negative since there are such rules that mustbe applied ex officio.4 The line to be drawn is doubtful. The present study dealswith one category of such rules that will be analyzed as data of the forum rule.Let us assume that Delictum has exempted from its anti-immunity statutethose foreign spouses whose domiciliary state would apply to this issue the per-sonal law of foreign domiciliaries. In that case, whether or not John has pleadedimmunity under the law of Domicilium, Delictum will dismiss Mary's suit underthat law, provided Domicilium, notwithstanding its own common law immunityrule, would permit interspousal suits between domiciliaries of Delictum underthe latter's anti-immunity statute. Thus, the Delictum anti-immunity statutebecomes inapplicable in Delictum by virtue of a Domicilium rule which, whetherpleaded or not, is part of the Delictum statute as a datum. Here the Domiciliumrule is not a foreign rule of decision which, only if pleaded, would displace theforum rule as a matter of choice of law, as would the immunity rule of Domici-ium in our first example. I have chosen the datum of reciprocity to introducethis study, in grateful recognition of the fact that it was Arthur Lenhoff whogave us the most incisive and comprehensive analysis of reciprocity as a "problemof conflict of laws. ' 5Currie must be credited with having added to American parlance the newconcept of datum.6 But this terminology, like other legal terms, including* Walter Perry Johnson Professor of Law, School of Law, University of California,Berkeley.1. Restatement (Second), Conflict of Laws § 390g (Tent. Draft No. 8, 1963).2. Johnson v. Johnson, 216 A.2d 781 (N.H. 1966).3. Ehrenzweig, Conflict of Laws [hereinafter cited Treatise] §§ 127-29 (1962).4. Treatise §§ 127-29. See, e.g., Gevinson v. Kirkeby-Natus Corp., 26 A.D.2d 71, 270N.Y.S.2d 989 (1st Dep't 1966).S. Lenhoff, Reciprocity in Function: A Problem of Conflict of Laws, ConstitutionalLaw, and International Law, 15 U. Pitt. L. Rev. 44, 61-68 (1953).6. See, e.g., Currie, Selected Essays on the Conflict of Laws 67-71, 178 (1963). Theuse of the term "datum" in other meanings is older. See Judge .Learned Hand's "mediateBUFFALO LAW REVIEWcharacterization7 and renvoi, s would have gained greater usefulness had it beenoffered with an awareness of older European learning and experience.9 Thispaper is designed to establish the relationship between Currie's new conceptand its European antecedent, the "preliminary question." It also undertakesto re-analyze Currie's concept as one concerning what I would like to call"local data" in juxtaposition with the "moral" data of my own coinage whichI have dealt with more fully elsewhere. Finally this paper attempts to showthat both the European concept of the preliminary question and its Americancounterpart should be approached in what I shall propose as a relative datumtheory.I have spoken of moral data in those cases where forum law is automaticallyapplied (typically without discussion), notwithstanding the presence of foreignelements which otherwise, under accepted rules of choice, would call for theapplication of a foreign rule. Those cases apply domestic rules which are phrasedin terms of justice and equity. I have given as examples rules concerning actionscommitted with "unclean hands" or "fraudulently"; actions entailing anestoppel; rules calling for a piercing of the corporate veil on equitable grounds;and, more generally, certain rules of restitution and much of the law ofadmiralty.10 It is with this automatic reliance on the law of the forum as amoral datum that I wish to juxtapose the seemingly automatic reference toforeign rules as local data.To illustrate his concept of (local) data, Currie states the case of a NewYork woman claiming workmen's compensation in New York as the widow of adeceased employee whom she married in an Italian ceremony which was invalidunder Italian law.:" If the New York compensation statute, in terms or byvirtue of judicial interpretation, refers to the lex celebrationis as determining"widowhood" for the purposes of that statute (the widow qualified as suchunder the law of the state where the alleged marriage ceremony took place),the pertinent Italian law must indeed be ascertained ex officio as a datum of theforum statute.Other examples of (local) data are foreign laws referred to in such reciprocalinheritance statutes as that of California, 12 which permits only those aliens todata ... from whose existence may be rationally inferred the existence" of an ultimate fact.The Evergreens v. Nunan, 141 F.2d 927, 928 (2d Cir. 1944).7. See Ehrenzweig, Characterization in the Conflict of Laws: An Unwelcome Additionto American Doctrine, in XXth Century Comparative and Conflicts Law 395 (1961).8. Treatise § 116.9. Conversely we may regret the reluctance of European theory to avail itself of itsAmerican counterparts. See, e.g., C. David, La loi 6trang~re devant le juge du fond (1965)who, though otherwise inclined to take Currie's theory as most representative of Americandoctrine, ignores his datum theory. See id. at 70-73, 100.10. See Ehrenzweig, Conflicts in a Nutshell § 22 (1965). See, by the same author,Report, Uppsala Congress on Comparative Law (mimeo. ed. 1966). Another summary ofwhat I have there called the "lex aequitatis fori," will appear in Akrothinia, a volume honor-ing the memory of Petros Vallindas; and an essay on the pertinent conflicts law ofadmiralty in a volume honoring Charalambos Fragistas.11. Currie, op. cit. supra note 6, at 70-71.12. Cal. Prob. Code § 259; see, e.g., In re Estate of Larkin, 416 P.2d 473, 52 Cal.56CONFLICT OF LAWStake whose countries offer equivalent rights to American citizens and whosesuccession laws are thus an essential element, a datum, of the claimant's case;"3or in the related rules of some countries which will grant only those adoptionsentitled to recognition in the country of nationality; 14 or in a rule excusing per-formance on the ground of impossibility whose application may depend onforeign prohibitions to trade with the enemy.15 Also, there is the case of a lawsuit based on a Saudi-Arabian automobile accident, recovery for which wascontingent on the breach of a Saudi-Arabian rule of the road;' 6 the suit forcancellation of a deed on the ground that a Mexican divorce was invalid underMexican law; 1 7 and the New York defamation suit based on the accusationof a Brazilian crime.' sFinally, whenever we hope to find good doctrine unencumbered by theballast of centuries, we should look to the law of admiralty. And, indeed, wefind admiralty courts applying such foreign rules as speed limits or pilotage re-quirements as a matter of course, as data without recourse to choice of lawrules. Where these data are sought in the law prevailing on the high seas, theyare supplied by treaties or customary international law. Thus "carrying a whitelight [and] carrying it on deck instead of [the] masthead" was determined tobe a violation of maritime law under "the law of nations" resting "upon thecommon consent of civilized communities ' 19 And though in cases involvingcollisions in territorial waters2° forum law may in effect prevail, it will do soonly because American courts "will take judicial notice that the other maritimenations have adopted Rules similar to ours."2'Awareness of the application, in certain cases, of foreign rules as data of thedomestic rule rather than as foreign rules of decision is particulary importantat this juncture in the development of American doctrine. Courts fend increas-ingly to abandon imperative rules of choice purportedly governing certaingeneral categories such as contracts or torts, in favor of fragmentized decisionsof individual issues under all-serving facile formulas. Elsewhere I have triedto show that this tendency, if carried too far, may yet cause a "counter-revolu-Rptr. 441 (Cal. 1966); In re Estate of Chichernea, 244 Adv. Cal. App. 727, 53 Cal. Rptr.535 (1966).13. See Kay, Conflict of Laws: Foreign Law as Datum, 51 Calif. L. Rev. 47, 62 (1965).For a similar example in French law, see Batiffol, Trait6 Elmentaire de Droit InternationalPriv6 No. 188 (3d ed. 1959); David, op. cit. supra note 9, at 181; and for Swedish law,Eek, The Swedish Conflict of Laws 183 (1965).14. Eek, op. cit. supra note 13, at 56-60. See also id. at 101, 155-58.15. Kegel, The Crisis of Conflict of Laws, [1964] Recueil des Cours II. 249.16. Walton v. Arabian American Oil Co., 233 F.2d 541 (2d Cir. 1956), cert. denied,352 U.S. 872 (1956). See generally Currie, op. cit. supra note 6 at 3.17. Cf. Simpson v. Simpson, 387 S.W.2d 7,17 (Tex. Civ. App. 1965).18. Crashley v. Press Pub. Co, 179 N.Y. 27, 71 N.E. 258 (1904).19. The Scotia, 81 U.S. 170, 187-88 (1871).20. See Restatement, Conflict of Laws § 407 (1934). The Second Restatement excludesmaritime law; see Restatement (Second), Conflict of Laws, Note to Institute at 194 (Tent.Draft No. 9, 1964). But see Restatement, Foreign Relations Law, ch. 2 (Proposed OfficialDraft, 1962). On port regulations, see, e.g., Sleeper v. Puig, 22 Fed. Cas. 321 (No. 12941)(1879); and generally 3 Rabel, Conflict of Laws 281-83 (2d ed. 1964).21. Gilmore and Black, The Law of Admiralty § 7-3 (1957).57BUFFALO LAW REVIEWtion" that would threaten the gains achieved by yesterday's revolution againstossified dogma.22 This threat is enhanced if the indispensable applicability ofcertain foreign rules as data is questioned on the same grounds as the improperclaim to imperative application of foreign rules of decision under over-generalizedformulas of choice of law. Leading courts have vaguely felt the need for a distinc-tion. Thus, when the New York Court of Appeals in Babcock v. Jackson23 pro-claimed the return, as against a foreign guest statute, to forum law, in rejectionof the allegedly generally applicable rule of decision of the fortuitous place ofwrong, it found it necessary to reserve cases involving "standards of conduct" forthe continued regime of the lex loci delicti. Such vague formulas can only createnew confusion. 24 As Judge Van Voorhis persuasively stressed in his dissentingopinion,25 the very guest statutes involved in that case could well be treated assetting standards of conduct which under Judge Fuld's majority opinion are toremain subject to the lex loci. What matters, and what must have been in thecourt's mind, is the distinction between rules of decision which, like the rightsof an automobile guest, may or may not be those of a foreign state accordingto the policy of the forum rule governing the particular issue (here found torelate to the parties' reliance on the domiciliary law), and such foreign rules asspeed limits or other rules of the road which are fixed data needed for the appli-cation of the forum rule of decision concerning liability for negligence. Europeanwriters have drawn similar distinctions by juxtaposing foreign rules referred toby the forum's confficts rule with those constituting "conditions" for the applica-tion of a domestic rule2 6 or with those appearing as "facts." 27 Similarly, Englishdoctrine has contrasted conflicts rules with "primary rules of construction"which are said to arise when "the choice of law is completed." 28In drawing such distinctions we must keep in mind, however, that they arenot absolute determinants but the "relative" result of the phrasing and inter-22. Ehrenzweig, A Counter-revolution in the Conflict of Laws? From Beale to Covers,80 Harv. L. Rev. 377 (1966).23. Babcock v. Jackson, 12 N.Y.2d 473, 484, 191 N.E.2d 279, 285, 240 N.Y.S.2d 743,752 (1963). See Cavers, Cheatham, Currie, Ehrenzweig, Leflar & Reese, Comments on Bab-cock v. Jackson, A Recent Development in Conflict of Laws, 63 Colum. L. Rev. 1212 (1963).See also Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964).24. See Ehrenzweig, The "Most Significant Relationship" in the Conflicts Law ofTorts: Law and Reason versus the Restatement Second, 28 Law & Contemp. Prob. 700(1963). For subsequent distressing vindications of my scepticism, see Dym v. Gordon, 16N.Y.2d 120, 209 N.E.2d 792, 262 N.Y.S.2d 463 (1965) (Fuld, J., dissenting); Long v. PanAmerican World Airways, Inc., 16 N.Y.2d 337, 213 N.E.2d 796, 266 N.Y.S.2d 513 (1966),per Fuld, J.; and Cashman v. Evans, 249 F. Supp. 273 (S.D.N.Y. 1966).25. Babcock v. Jackson, 12 N.Y.2d 473, 485-87, 191 N.E.2d 279, 285-87, 240 N.Y.S.2d743, 752-54.26. See, e.g., Morelli, Elementi di diritto internazionale privato § 45 (6th ed. 1959).27. See, e.g., Morelli, fl diritto processuale internazionale § 33 (1954) ; Pau, L'attuazioneprocessuale delle norme italiane di DIP, 2 Scritti Perassi 187 (1957); C. David, La loi6trang~re devant le juge du fond 72-74, 180, 184 (1965).28. See F. A. Mann, The Primary Question of Construction and the Conflict of Laws,79 L.Q. Rev. 525 (1963), with reference to the decisions of the House of Lords in Camille &Henry Dreyfus Foundation Inc. v. Commissioners, [1956] A.C. 39 (Eng.) ("charitable"character of a New York foundation for British tax purposes) ; and Rae v. Lazard Invest-ment Co. Ltd., [1963] 1 W.L.R. 555 (H.L.) (capital distribution of income from Marylandcorporation).CONFLICT OF LAWSpretation of the domestic rule whose displacement is sought, in the same manneras the various solutions proposed for that favorite topic of academic discussion,the preliminary question of European doctrine.29Assume in our above example that the New York statute grants workmen'scompensation simply to any "widow" defined as any woman claiming to havebeen validly married to the deceased. We are immediately faced with the classicproblem of whether the preliminary question of validity is to be decided separatelyunder a general conflicts rule of the forum relating to the validity of marriages,or under the New York compensation rule which could well be interpreted assatisfied with any marriage that would have been valid in New York. Europeanexperience should caution us against attempting to solve this problem bygeneral, let alone "logical" 30 formulas, such as those always or usually permittingor compelling "independent" connection of the preliminary question with ageneral forum rule of choice, 31 or those always or usually referring to the conflictsrule of the lex causae. If in our example the New York compensation act hadbeen interpreted as providing for any woman validly married under the law ofcelebration, there would, as we have seen, have been no preliminary question toanswer, but that law would have been applied as a datum.32Many other problem cases usually discussed in terms of preliminary ques-tions can be used to explain and test the "relative" datum theory.33 Europeanconflicts rules referring to foreign nationality leave its determination, as a"datum," to the foreign law invoked.3 4 On the other hand, we would be reluctantto apply a similar rigid principle to our connecting factor of domicile, since ourconflicts rule or the policy of our domestic rule whose displacement is sought will29. See Cavers, The Conditional Seller's Remedies and the Choice-of-Law Process-Some Notes on Shanahan, 35 N.Y.U.L. Rev. 1126, 1138 n.31 (1960). See also, e.g., VanHoogstraten, Le droit international privm nierlandais et la question pr6alable, in De ConflictuLegum 209, 211 (1962); Lagarde, La r~gle de conflit applicable aux questions prealables,49 Rev. Crit. DIP 459 (1960); Voskuil, Rechtsvinding aan de band van buitenlandserechtsregels; vorfrage en verkregen rechten (1963).30. Neuhaus, Die Grundbegriffe des internationalen Privatrechts 238 (1962).31. See, e.g., Kegel, The Crisis of Conflict of Laws, [1964) Recueil des Cours II. 95,232, postulating this solution to secure uniformity of decision within the forum state. Cf.Treatise § 188. But see (with the exception of marriage cases) Wengler, Die Vorfrage imKollisionsrecht, 8 Rabels Zeitschrift 148 (1934); Neuhaus, op. cit. supra note 28, at 82-89,237-42.32. For a pioneering study pointing in the direction of the present essay, see Kay,supra note 11, at 60. See also M. Traynor, Conflict of Laws: Professor Currie's Restrainedand Enlightened Forum, 49 Calif. L. Rev. 845, 873 (1961).33. For a significant example from interstate law, see Neff v. Johnson, 391 S.W.2d 760(Tex. Civ. App. 1965), where the Texas court in denying the duty of a Texas father tosupport his Ohio child under the law of Ohio, treated the question of the plaintiff's minorityas one separate from the duty to support. If the Ohio statute had referred to persons of aspecific age, the answer might have been different. For a confrontation of the Germanview, as developed particularly by Wengler [e.g., supra note 311 with French doctrine, seeFrancescakis, note to Wengler, Les principes ginraux du droit international priv6 et leursconflits, 41 Rev. Crit. DIP 595, 596 n.1 (1952).34. See, e.g., Francescakis, Les questions priaIables de statut personnel dans le droit denationaliti, 23 Rabels Zeitschrift 466 (1958); Kegel, Thternationales Privatrecht § 9 11(2)(2d ed. 1964).BUFFALO LAW REVIEWfrequently require determination of domicile in specific relation to such rule orpolicy, thus referring us to either the forum or foreign rule of decision. 85We may well ask ourselves whether in the very rare cases of this kind inwhich courts have resorted to a "theory" of the preliminary question, theywould and should not have reached the desired result by other means. "Gardons-nous de chercher, dans un souci de systematization 6xag6r6, & 6chafauder sur descas isol~s des constructions artificielles qui ne font qu'61oigner la vie quotidiennede son droit."-3 6 Like renvoi, this problem is one of the policy underlying theforum rule.8 7 But it is submitted that in light of and despite this conclusion, thedatum concept can assist judicial analysis..35. See generally 1 Rabel, Conflict of Laws 156-59 (2d ed. 1958).36. Van Hoogstraten, supra note 29, at 224.37. Eek, op. cit. supra note 13, at 180.

Local and Moral Data in the Conflict of Laws: Terra Incognita

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Local and Moral Data in the Conflict of Laws: Terra Incognita

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