Hay, Borchers, and Freer's Conflict of Laws, Private International Law, Cases and Materials, 16th

Foundation Press
Primary Subject
Conflict Of Laws
University Casebook Series
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The authors of the sixteenth edition are proud of the book’s heritage, which dates to 1936. At the same time, they are mindful of the needs of students and professors addressing the Conflict of Laws eight decades later. We continue to add the subtitle “Private International Law” to acknowledge the more common title of the subject outside the U.S., as well as to alert students that they will face a blend of domestic and international issues once they become lawyers. As an intellectual matter, the conflicts course presents rich and nuanced doctrine. As a professional matter, every litigator will face issues raised in this course. As a practical matter, an increasing number of students are drawn to the course because it is tested on the bar exam in every state that has adopted the universal bar exam or the multistate essay exam. The authors recognize the need, therefore, to provide appropriate review of civil procedure to allow the student to transition to the study of conflicts.

A modern conflicts casebook must be flexible. Some professors will choose to cover a great deal of international and comparative law. Others, however, will prefer to address conflicts only in the domestic sphere. This edition fully supports either (or some middle) approach. The professor may comfortably choose how much international and comparative material to cover without losing transition or context.

Some highlights of the sixteenth edition:
  • Chapter 2, concerning domicile, remains succinct, intended to drive home the significance of domicile and the complementary concept of habitual residence, including a new note on domicile and devolution of real property. Notes have been added on the notion of derivative domicile and occasional confusion in statutes referring to “residence” rather than “domicile.”
  • Chapter 3, concerning personal jurisdiction, has been honed in response to recent doctrinal shifts. The Supreme Court’s contraction of general jurisdiction has led to an increasing focus on the “relatedness” aspect of specific jurisdiction. The Chapter reflects this trend. One subsection traces the development of doctrine from 1980-2014, with World-Wide Volkswagen, Burger King, and Asahi as note cases setting up J. McIntyre as the principal case. The next subsection traces the retraction of general jurisdiction, with notes on Perkins and Goodyear setting up Daimler as the principal case. The next subsection emphasizes the emergent importance in specific jurisdiction of being able to show that the plaintiff’s claim relates sufficiently to the defendant’s contact. Bristol-Myers Squibb is one principal case, followed by the state case Moki-Mac, which is a wonderful vehicle for addressing whether the relatedness inquiry requires consideration of causation and, if so, what sort of causation is relevant. The latter point sets up Supreme Court decisions in the Ford Motor Company cases, which were handed down as the book went to press and are addressed in an Update Memorandum.
  • Chapter 4 pulls together everything that bears on limiting a court’s exercise of jurisdiction that it otherwise has. This includes forum selection agreements in interstate and international transactions, antisuit injunctions, dismissals (or denials of motions to dismiss) in cases of parallel litigation (lis pendens) or on the ground of forum non conveniens, and federal transfer.
  • Chapter 5 treats a number of questions often not addressed in depth in the first-year procedure course. For instance: what is a “judgment” for purposes of recognition – administrative decrees, equity decrees, modifiable support orders? How conclusive is a judgment on a second court – comparing res judicata (Treinies) in the interstate setting with the 2010 SPEECH Act requiring review of foreign country awards for libel? Does public policy play a different role in the case of foreign than in interstate judgments? Can non-parties benefit or be bound: what about “virtual representation” or non-mutual collateral estoppel? What are the mechanisms for the recognition and enforcement of domestic and of foreign-country judgments in the United States?
  • Chapter 6, concerning the impact of the Constitution, has been streamlined to enhance teachability.
  • Chapters 7 and 8 present the central themes of choice of law. Chapter 7 deals with many of the classical puzzles of choice of law such as the public policy reservation and renvoi.
  • Chapter 8 was considerably revised in the fifteenth edition to show the progression from the traditional system, to the height of the conflicts revolution, to a developing consensus to consolidate modern analysis in a manner that provides more predictability and certainty. This edition shortens Chapter 8 somewhat to place more emphasis on the most modern developments and discusses important provisions of the draft Third Restatement. Chapter 8 is also divided into several subsections, allowing the teacher freedom to omit portions of it if desired.
  • Chapter 9 addresses conflicts problems in the domestic and international settings. In keeping with the overall theme of flexibility, the professor may assign specific sections to engage a greater or lesser degree of review of Erie as well as a greater or lesser degree of international coverage.
  • Chapters 10 through 13 cover particular subjects such a property, family law, and corporate law for professors who desire to go into these subjects in more depth. Recent changes in the law particularly affect Chapter 11 on Family Law. That chapter first briefly explores the place of celebration rule (also with respect to religious marriages), treats same-sex marriages and registered unions in the light of Obergefell with particular reference to property and inheritance interests, updates the material on divorce (including religious divorces), expands the treatment of child custody and of interstate and international child abduction, and updates the enforcement of maintenance obligations under interstate uniform law and the Hague Convention in international cases.

Finally, a Documentary Appendix provides the principal legislative acts of the European Union with respect to jurisdiction in civil, divorce, and custody matters as well as with respect to choice of law in contract, tort, and divorce, in each case with extensive textual commentary. Textual material briefly addresses the effect of “Brexit” on EU – UK relations in these matters and summarizes other EU texts, such as the succession regulation. Notes in the main text refer to these materials, allowing an instructor to teach the material comparatively or to focus only on American law. The European materials also all lend themselves for use in a seminar.