KEGEL, Gerhard. The Crisis of Conflict of Laws

THE CRISIS OF CONFLICT
OF LAWS
GERHARD KEGEL
Professor of Law, University of Cologne
BIOGRAPHICAL NOTE
Gerhard KEGEL, born June 26, 1912 in Magdeburg. Legal studies 1930-
r
933 in Erlangen, Göttingen and Berlin. Legal state examinations 1934
and 1938 in Berlin. Dr. jur. 1936 in Berlin. 1936-1941, assistant at Kaiser-
Wilhelm-Institut for Foreign and International Private Law in Berlin. 1945
assistant, 1946 Privatdozent, 1950 professor of law, University of Cologne.
PRINCIPAL PUBLICATIONS
Probleme der Aufrechnung (1938).
Die Einwirkung des Krieges auf Verträge (194I) co-author with R u p p and
Zweigert).
Die Abwicklung von Vorkriegsverträgen der deutschen Wirtschaft mit dem Ausland,
Deutsche Rechtszeitschrift Beiheft 3 (1948).
Der Gegenstand des internationalen Privatrechts, i n : Festschrift Leo R a a p e 13-33
(1948).
Rohstoff- und Rüstungskredite, 1951 Juristen-Zeitung 385-416.
Empfiehlt es sich, den Einßuss grundlegender Veränderungen des Wirtschaftslebens
auf Verträge gesetzlich zu regeln? in: 1 Verhandlungen des 40. Deutschen
Juristentages, Gutachten Bürgerlichrechtliche Abteilung 139-236 (1953).
Begriffs- und lnteressenjurisprudenz im internationalen Privatrecht, in: Festschrift
H a n s Lewald 259-288 (1953)-
Probleme des internationalen Enteignungs- und Währungsrechts (1956).
Reform des deutschen internationalen Eherechts, 25 Rabeis Zeitschrift 201-221
(i960).
5 Soergel, Bürgerliches Gesetzbuch, 9th ed., 503-989 (1961).
Die Grenze von Qualifikation und Renvoi im internationalen Verjährungsrecht (1962).
Internationales Privatrecht, 2nd ed. (1964).
Zur Bindung an das gemeinschaftliche Testament im deutschen internationalen Privat-
recht, in: Festschrift H e r m a n n Jahrreiss, 143-162 (1964).
INTRODUCTION*
• p R 0 G R E S S of academic scholarship in a given field may lead to

a weakening of its fundamentals. We then begin to speak of a
"crisis"1. If the fundamentals undergo a rapid transformation,
we have a successful "revolution".
In speaking about a "crisis" in the conflict of laws and not
about a revolution, we anticipate two results of our studies. We
see on the one hand serious critics, men from whose constructive
and well-reasoned suggestions we can learn a great deal and who
are not to be counted among the crackpot and sectarian element
of our academic community. On the other hand, we see the old
fundamentals still unshaken, and we come to the conclusion that
only they are solid enough to support the house of conflict of
laws.
The attacks of the critics come from opposite directions. Some
accuse conflicts law of treating domestic and foreign substantive
private law in the same way.2 According to these critics, the
forum should apply foreign substantive private law only by way
of exception. Others complain that conflicts rules dictate the
application of the substantive law of this or that state to a set of
facts dealing with several states, instead of creating new rules of
substantive private law to decide the case. The first group could
perhaps be called the 'forum faction" and the second group the
"substantive law faction" or the "substantivists".
At the outset it should be emphasized that we are not attempt-
ing to differentiate between cases involving sovereign states, as
for example, the United States and Canada (international
* I am highly indebted to Mr. Joseph J. Darby, a young attorney from New

York, for his translation of the original German text.
i. The term "crisis" was used by Neuhaus, Die Krise im internationalen Privat-
recht, 3 Deutsche Rechtszeitschrift 86-87 ('94^) and by Kronstein, Crisis of
Conflict of Laws, 37 Georgetown L, J. 483-513 (1949), reprinted in Recht und
Macht, Ausgewählte Schriften von Heinrich Kronstein, 289-315 (1962).
2. By "substantive" law we do not mean in these lectures the counterpart
of procedural law, but the "domestic", "internal" law or simply the "law"
of a state, as opposed to the conflicts law of that state.
96 GERHARD KEGEL (6)
conflicts law), and cases involving jurisdictional entities within
the federal structure of a single sovereign state, as for example,
New York and Illinois (interriate conflicts law). The problems, in
our opinion, are essentially the same, despite the more pro-
nounced influence of Constitutional Law in an interstate
conflicts situation.3 It should be noted, however, that the
"forum faction" is primarily active in the interstate arena, while
the "substantivists" move mainly in the international field.
3. Cf infra p. 139 at note 24.

PART I
GOVERNMENTAL INTERESTS: BRAINERD

CURRIE
nnHE most outspoken member of the "forum faction" is

Brainerd Currie. Born in 1912, Gurrie taught at the Uni-
versity of Chicago from 1953 to 1961 and has been William R.
Perkins Professor of Law at the Duke University in Durham,
North Carolina, since 1961. Most of his articles on conflict of
laws are now available in an imposing volume entitled Selected
Essays on the Conflict of Laws, Durham, North Carolina (1963)1.
Any citations which we shall make simply by indication of pages
refer to this volume.
1. For Currie's own comments on his contribution to the literature on Con-

flict of Laws, see ib. 585-586 and 629 (note 2). For a report on Currie (with
photograph) see "Time" (Atlantic Edition) January 8, 1965, p. 32-33.
CHAPTER I
CASES
T ET'S start with some of the cases which Gurrie has discussed.
In Millikan v. Pratt, 125 Mass. 374, 28 Am. Rep. 241 (1878),
Pratt, who resided with his wife in Massachusetts, was a steady
customer of the plaintiff firm located in Portland, Maine. In the
course of these business dealings Pratt applied to the plaintiffs at
Portland for credit and they required of him, as a condition of
granting the same, a guarantee from the defendant wife for the
liability of her husband for goods sold by the plaintifffirm to him.
This guarantee was executed by the wife in her home in Massa-
chusetts and delivered to the husband, who promptly mailed it
to the plaintiff's business address in Maine. When the husband
defaulted on payment for goods sold and delivered, the plaintiff
firm requested the wife to honor her guarantee. The wife refused,
relying on a Massachusetts rule which prohibited a married
woman from guaranteeing her husband's debts. In Maine,
however, such a contract was valid. The Supreme Judicial
Court of Massachusetts declared that Portland, Maine, was the
place where the contract was made, applied Maine law and held
for the plaintiff.
Grant v. McAulijfe, 41 Cal. 2d 859, 264 P.2d 944, 42 A.L.R. 2d
1162 (1953) was an action for injuries sustained by Grant and
two other plaintiffs as a result of the collision of the car in which
they were riding with an automobile driven by one Pullen. All
four were residents of California, although the accident took
place near Flagstaff, Arizona. Pullen, who plaintiffs alleged was
negligent, died 19 days later as a result of injuries received in the
collision. The defendant, who in California had been appointed
administrator of Pullen's estate, claimed under Arizona law that
any cause of action which plaintiffs might have had against
Pullen did not survive his death and was not maintainable
against his estate; for under Arizona law a tort action must be
(9) T H E CRISIS OF C O N F L I C T OF LAWS 99
commenced before the death of the tortfeasor, otherwise a plea

of abatement will succeed. In California, on the contrary, such
restriction was abolished in 1949. The Supreme Court of Cali-
fornia applied California law. Mr. Justice Traynor wrote for a
four to three majority and, after characterizing survival statutes
as procedural for conflicts law purposes, said:
" W h e n , as in the present case, all of the partus were residents of this state, and
the estate of the deceased tortfeasor is being administered in this state, plaintiffs*
right to prosecute their causes of action is governed by the laws of this state
relating to administration of estates."'
In Kaufman v. American Youth Hostels, 6 App. Div. 2d 223, 177

N.Y.S.2d 587 (1958),2 a fifteen year old girl in 1956 was killed
climbing Mount Hood in Oregon. She was on a tour conducted
by American Youth Hostels, a charity. The girl and her father,
the plaintiff, apparently were residents of New York.3 The
defendant was a New York corporation. Under the law of
Oregon a charity was immune. New York had abolished this
rule. The law of Oregon as the law of the place of injury prevailed.
In Kilberg v. Northeast Airlines, 9 N.Y.2d 34, 172 N.E.2d 526,
211 N.Y.S.2d 133 ( 1961 ), Mr. Kilberg, a resident of New York,
booked with Northeast Airlines, a Massachusetts corporation, for
a flight from New York to Nantucket, Massachusetts. The plane
crashed and burned at Nantucket and Kilberg was killed. His
administrator sued Northeast in tort for wrongful death, but
since the Massachusetts death statute limited recovery to % 15,000,
he sued for damages in contract also. The contract count was
dismissed because a cause of action for wrongful death is
purely statutory and the statute which governs such an action
is that of the place of the wrong. As to the tort count the court
held, by a four to three majority, that, although Massachusetts
law governs as the law of the place of injury, its $ 15,000 limit is
not to be applied in New York, where the law disapproves of
such a limit, either because of a strong public policy of New
1. 41 Cal. 2d at 867, 264 P. 2d at 949, 42 A.L.R. 2d at 1168. (Emphasis

added.)
2. Modified in respects irrelevant here in 5 N.Y. 2d 1016, 158 N . E . 2d 128
(1959).
3. Cf. Currie, op. cit., 558.
100 GERHARD KEGEL (io)
York or because the limit pertains to the remedy, rather than the
right and, therefore, is a procedural question controlled by the
lex fori.
Two parallel cases, arising from the same crash, should
be mentioned. In Pearson v. Northeast Airlines, 307 F.2d 131
(2d Cir. 1962), the Federal Court of Appeals, in accordance
with Erie4 and Klaxon,5 adopted the decision of the New York
Court of Appeals in Kilberg as an authoritative statement of the
conflicts law of New York. However, the court declared the
New York rule of fixing the amount of damages according to
New York law unconstitutional as a violation of the Full Faith
and Credit Clause,6 which would require that Massachusetts
law be applied. Plaintiif's cause, which had been assessed
$ 160,150.65 in damages at the trial level, was therefore remand-
ed for entry of judgment in conformity with the opinion of the
Court of Appeals.
In the apparently unreported case of Trauth v. Northeast
Airlines,7 the same trial judge, Judge McGohey, had to decide as
in the Kilberg case. However, here the deceased and his surviving
dependants were residents of New Jersey and under New Jersey
conflicts law the law of Massachusetts was to be applied, including
Massachusetts' limit of $ 15,000 in damages. Therefore, a motion
for leave to amend the complaint for damages in excess of
$ 15,000 was denied.
In Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240
N.Y.S.öd 743 (1963), the plaintiff Babcock and her friends,
Mr. and Mrs. Jackson, all residents of Rochester, New York, left
that city in Mr. Jackson's car for a weekend excursion to Canada.
While Mr. Jackson was driving in Ontario, he lost control of
the vehicle. It careeved off the highway and smashed into an
adjacent stone wall, seriously injuring the plaintiff. She
brought an action to recover from the allegedly negligent defen-
dant driver. According to the law of Ontario, "the owner or
4. Erie R. R. v. Tompkins, 304 U . S . 64 (1938).

5. Klaxon Co. v. Stentor Elee. Mfg. Co., 313 U.S. 487 ( 1941 ).
6. U . S . Const., Art. 4, § r.
7. Civil N o . 149-256, S.D.N.Y. T h e case is discussed by Currie, op. cit.,
719-721.
(il) THE CRISIS OF CONFLICT OF LAWS IOI
driver of a motor vehicle, other than a vehicle operated in the
business of carrying passengers for compensation, is not liable for
any loss or damage resulting from bodily injury to, or the death
of, any person being carried in . . . the motor vehicle."8 Under
New York's law of torts no such bar is recognized. The Court of
Appeals of New York, by a five to two majority, applied the law of
New York and decided in favor of the plaintiff. Mr. Justice Fuld,
writing for the majority, rejected the vested rights doctrine of
the Restatement and in effect introduced for tort cases the
''center of gravity" or "grouping of contacts" doctrine, which had
previously been applied by New York courts only to contract
cases.9
"Justice, fairness and "the best practical result" . . . may best be achieved
by giving controlling effect to the law of the jurisdiction which, because of
its relationship or contact with the occurrence or the parties has the greatest
concern with the specific issue raised in the litigation."10
This, as Mr. Justice Fuld showed, was the law of New York.
8. Highway Traffic Act of Province of Ontario (Ont. Rev. Stat. [1960],

Ch. 172), § 105, subd. (2).
9. Auten v. Auten, 308 N.Y. 155, 124 N.E. 2d 99 (1954).
10. 12 N.Y. 2d at 481, 191 N.E. 2d at 283, 240 N.Y.S. 2d at 749.
C H A P T E R II
TRADITIONAL APPROACH
CIASES of this type are usually handled in the following manner:
to a given set of facts, such as the guarantee of the married
woman or a tort, the rules of substantive law of that state which
enjoys an intimate relationship with the issue at hand, are applied
because of the existence of a given fact, the so-called "point of
contact." 1 Such a point of contact could be the place where the
contract was made, or the place where the tort took place.
Accordingly, in Milliken v. Pratt2 the law of Maine was applied
because Maine, as the court indicated, was the place where the
guarantee contract came into existence. Likewise, in Kaufman v.
American Youth Hostels3 the law of Oregon was applied because
Oregon was the place where the girl received her fatal injuries
in climbing Mount Hood.
The substantive laws of all states are treated equally, since
they are all applied according to the same points of contact. These
points of contact are not to be found in the rules of substantive
law, especially not in the substantive rules of the forum. They are
rather developed for the substantive laws of all states according
to certain points of view, the consideration of which we will take
up later, preoccupied as we are now with the more formal aspects
of the problem. Ernst Rabel explained this point lucidly:
" P r i v a t e law rules ordinarily d o not direct which persons or movables they
include. I t is as mistaken to apply such rules blindly to events all over the
world as to presume them limited to merely domestic situations. T h e y are
simply n e u t r a l ; the answer is not in them. Generally, therefore, w h a t is
needed, or even feasible, is not an interpretation of the statute b u t a rule of
private international law to accompany and delimit the rule of private law." 4
i. See Kegel in Festschrift für Leo Raape, pages 22-33 (i94ß)-

2. 125 Mass. 374, 28 Am. R e p . 241 (1878); cf. supra p . 98.
3. 6 A p p . Div. 2d 223, 177 N.Y.S. 2d 587 (1958); cf. supra p . 99.
4. 1 Rabel, TheConflictof Laws, 2d ed., 103(1958). Cf. Currie, op. cit., 433"434-
CHAPTER III
HISTORY
OUCH is, by and large, the traditional approach. We find it

predominantly in the Middle Ages and in the so-called
"statute theory". It is perhaps best explained by Savigny, who
insisted "that in every relationship of law it is necessary to search
for that territory of law to which this legal relationship by its
very nature belongs or is subjected, in which it has its seat". 1
We also find it in Argentré in the sixteenth century. To be sure,
Argentré was influenced by the principle of sovereignty, prevailing
in its territory and ending at its borders and directed principally
towards domestic realty. Living in a feudal environment, Argen-
tré took all rules relating to realty, whether they dealt entirely
with realty (statuta realia) or only partially (statuta mixta), from
the lex rei sitae. The statuta personalia formed a third group,
designed for cases which had nothing to do with realty and
which were to be taken from the law of the domicile of the party
involved. By radically reducing the scope of application of the
statuta personalia and by treating the statuta mixta as essentially the
same as the statuta realia, he succeeded in strengthening the
effectiveness of the lex fori. For a local court is more frequently
called on to decide questions involving local realty than realty
located abroad and, therefore, rules in any way relating to realty
are mostly taken from the local lex rei sitae, i.e., from the lex fori.
Only in theory is the augmentation of the lex fori due to the
prevalence of cases involving local realty offset by a correspond-
ing growth of foreign law in cases involving foreign realty. There
is a certain resemblance here to the principle of nationality and
domicile. Since, as a practical matter, legal relief is most often
sought within that jurisdiction which corresponds to the domicile
of the parties, the principle of domicile comes to mean that the
i. 8 Savigny, System des heutigen Römischen Rechts, 28, 108 (1849).

lex fori is applied much more frequently than happens under the
principle of nationality.
Argentré influenced the Dutch jurists of the seventeenth
century. Paul and Johannes Voet and Ulrich Huber even more
emphatically than Argentré posed the question ofwhy foreign law
should be applied at all. They were of the opinion that foreign law
is only applied by friendliness (comitas).2 All three belonged to
the United Netherlands, a political union founded in 1579 in
Utrecht and comprising the northern part of Belgium as well as
all of the present day Netherlands. Paul Voet taught in Utrecht
and Huber was a professor and judge in Friesland. The War of
Independence of the United Netherlands, Bodin's doctrine of
sovereignty (Les six livres de la République, 1576) and the rising
importance of Dutch foreign trade were all influential in the
birth of the comitas doctrine.3
Ulrich Huber wrote :
"Rectores imperiorum id comi- "Sovereigns will so act by way of
ter agunt, ut jura cujusque comity that rights acquired within
populi intra términos ejus exer- the limits of a government retain
cita, teneant ubique suam vim, their force everywhere so far as
quatenus nihil potestati aut they do not cause prejudice to
juri alterius imperantis ejusque the power or rights of such
civium praejudicetur. Ex quo government or of its subjects.
liquet, hanc rem non ex simplici It follows, therefore, that the
jure Civili, sed ex commodis et solution of the problem must be
tacito populorum consensu esse derived not exclusively from the
petendam: quia sicut leges alte- civil law, but from convenience
rius populi apud alium directe and the tacit consent of nations.
valere non possunt, ita com- Although the laws of one nation
merciis et usu gentium promiscuo can have no force directly with
nihil foret magis incommodum, another, yet nothing could be
2. Meijers, L'histoire des principes fondamentaux du droit international privé à partir
du Moyen Age, 49 Ree. des Cours 663-670 (1934); Kollewijn, Geschiedenis
van de Nederlandse wetenschap van het internationaal privaatrecht, 78-98, 109-161
( ' 9 3 7 ) ; Scholten, Het begrip comitas in het internationaal privaatrecht van de Hol-
landse Juristenschool der zeventiende eeuw, Diss. Nijmegen (194.9) > Yntema, The
Comity Doctrine, in : Vom deutschen zum europäischen Recht, 2 Festschrift für H a n s
Dolle, 65-86 (1963).
3. Yntema (supra note 2), at 74-75.
(15) T H E CRISIS O F C O N F L I C T OF LAWS IO5
quam si res jure certi loci more inconvenient to commerce

validae, mox alibi diventiate and to international usage than
Juris infirmarentur, quae est that transactions valid by the law
ratio tertii axiomatis: quod, uti of one place should be rendered
nee prius, nullum videtur habere of no effect elsewhere on account
dubium." of a difference in the law. And
that is the reason for the third
maxim concerning which hitherto
no doubt appears to have been
entertained." 4
The comitas doctrine only tells us why, and not when, foreign
law is to be applied. Since the application of foreign law is not
self-operative, but rather depends on the existence of a special
reason, the doctrine of comitas can exercise a tendentious influence
by restricting the application of foreign law more than is custo-
mary (although this was not done by the Dutchmen, who were
for the most part more favorably disposed toward foreign law
than was Argentré). The comitas doctrine was thus well suited for
adoption in England around the middle of the eighteenth
century, when the courts there began to doubt the desirability of
the universal application of English law and began te develop
gradually a conflicts law. From England the comitas doctrine
went to the United States, where it was adopted by Joseph Story.
Story has greatly influenced Savigny. To be sure, Savigny5 did
not consider sovereignty as the foundation for the application of
foreign law. Rather Savigny saw the need for the application of
foreign law arising out of a growing international commerce6 which
demanded equal treatment for foreigners as well as local citizens and
uniformity of decision on legal relationships by the courts of the
various states. The concept of a "community of the law of
nations" 7 had become, according to Savigny, more and more
accepted, partly through the influence of Christianity and partly
4. T e x t and translation are taken from Lorenzen, Selected Articles on the

Conflict of Laws, 164-165 (1947).
5. 8 System des heutigen Römischen Rechts, 24-28 (1849).
6. Cf. Huber's "commercia et usus gentium promiscuas", supra p. 104.
7. Cf. H u b e r ' s "tacitus consensus populorum", supra p . 104.
io6 GERHARD KEGEL (i6)
8
because of "its genuine advantages" for everybody. Although
one could designate the application of foreign law as a "friendly
concession" (comitas),9 it was essentially a question of the develop-
ment of law rather than an act of "magnanimity or free will."
Huber had based the protection of vested rights on comitas.
Rights which were acquired within the boundaries of a country
retained their validity because of comitas.10 This concept was
transmitted by Holland, an English legal philosopher, to Dicey,
who used it to develop his doctrine of vested rights. 11 It was
later adopted by Oliver Wendell Holmes12 and Joseph Beale13 in
the United States. Beale took this vested rights doctrine as the basis
for the Restatement of the Conflict of Laws,1* which was published in
1934, just one hundred years after Story's Commentaries. 15
Like Huber, the vested rights theory attempted to explain why
foreign law should be applied. It went something like this:
foreign law is not applied at all. Rather, legal protection is
afforded to a right which has been created and established
according to foreign law. 16 Such an explanation does not tell us
8. Cf. Huber's "commoda", supra p . 14.

9. 8 System des heutigen Römischen Rechts, 28 note (f) (1849), quoting from
H u b e r ' s first sentence printed supra p. 104.
10. Supra p. 104.
11. E.g., Dicey, Conflict of Laws, 5th ed., 17 {1932); cf. the revised statement
to. 6th ed., 11 (1949).
12. E.g., in Slater v. Mexican National R. Co., 194 U . S . 120, 126 (1904):
" a l t h o u g h the act complained of was subject to n o law having force in the
forum, it gave rise to an obligation, an obligatio, which, like other obligations,
follows the person, and may be enforced wherever the person may be found."
13. E.g., 3 Beale, A selection of Cases on the Conflict of Laws, 501 S u m m a r y I
§ 1 (1902): " T h e topic called 'Conflict of Laws' deals with the recognition
and enforcement of foreign created rights." lb. 517 Summary V § 4 7 : " A r i g h t
having been created by the appropriate law, the recognition of its existence
should follow everywhere. T h u s an act valid where done cannot b e called
in question anywhere." Beale has reprinted these statements in 3 Beale, A
Treatise on the Conflict of Laws, 1968, 1969 (1935).
14. T h e Restatement contains no explicit statement of the vested rights
theory, but is generally regarded as in accord with it. See Cavers, C o m m e n t :
The Two "Local Law" Theories, 63 Harv. L. Rev. 822-828, at 824 note 4
(1950), reprinted in: Selected Readings on Conflict of Laws, Compiled by the
Committees on Selected Articles on Conflict of Laws, 1939-1955, of the As-
sociation of American Law Schools, edited by Maurice Culp, 124-131, at
125 note 4 {1956).
15. It is noteworthy that Beale has dedicated the three volumes of his Treatise
of 1935 (supra note 13) to the memory of Joseph Story.
16. E.g., 1 Beale, Treatise on the Conflict of Laws, 106 (1916) : " T h e provisions
(l7) T H E CRISIS OF C O N F L I C T OF LAWS IO7
when foreign rights should be recognized and protected by the

local forum. That depends on what "law" has "jurisdiction" 17
and varies according to the type of case (contracts, torts, etc.).
It is determined by the usual rules of conflicts law and in this
regard the lex fori has no claim to preference.
The same is true of the local law theory of Judge Learned Hand
and Walter Wheeler Cook (1873-1943)18-19. It supplies only the
reason for, and not the extent of, the application of foreign law.
Likewise, according to the local law theory, no foreign law is
actually applied. Rather, the court creates its own law patterned
after the foreign model.20 Exactly when this takes place remains an
open question. Cook recommends a pragmatic approach without
favoring the lex fori.21
of this [i.e., foreign] law having been proved as a fact, the question is solved
by the national law, the foreign factor in the solution—i.e., the foreign con-
tract law—being present as mere fact, one of the facts on which the decision
is to be based."
17. 1 Beale, A Treatise on the Conflict of Laws, 6 (1935): " I f we are to apply
laws in space, we should first of all delimit the space to which each law ¡s
applicable; and as law-giving is a function of sovereignty, this amounts to
fixing the limits of jurisdiction. . . [ M ] a n y authors have assumed without
discussion a n d proof some untenable theory of sovereign power a n d extent
of legislative jurisdiction . . ." As to "legislative jurisdiction" see also ib. 5,
308-322.
18. Biographical materials: Selected Readings on Conflict of Laws (supra p. 10G
note 14) 70 (1956).
19. O n possible differences between J u d g e H a n d ("homologous right theory")
a n d Cook ("local law theory") see Cavers, op. cit., supra p. 106 note 14, a n d
quotations infra note 20.
20. E.g., J u d g e H a n d in Guinness v. Miller, 291 Fed. 769, 770 (S.D.N.Y.
1923): " [ N ] o court can enforce any law but that of its own sovereign, a n d ,
when a suitor comes to a jurisdiction foreign to the place of the tort, he can
only invoke an obligation recognized by that sovereign. A foreign sovereign
u n d e r civilized law imposes an obligation of its own as nearly homologous
as possible to that arising in the place where the tort occurs." Cook, The
Logical and Legal Bases of the Conflict of Laws, 20-21 (1949): '*[T]he forum,
when confronted by a case involving foreign elements, always applies its
own law to the case, but in doing so adopts a n d enforces as its own law a
rule of decision identical, or at least highly similar though not identical, in
scope with a rule of decision found in the system of law in force in another
state or country . . . T h e forum thus enforces not a foreign right but a right
created by its own law."
2 1 . Cook, op. cit., 45-46: " W i t h o u t adequate guides to go by, a n d confron-
ted by the chaotic a n d conflicting views of continental writers as gathered
together in Story's treatise, the courts oflast resort in our States found them-
selves on a largely uncharted sea. For this reason a writer attempting to set
forth the "American l a w " upon the conflict of laws is necessarily compelled
I08 GERHARD KEGEL (l8)
In the following period the differences in approach, namely,
conservative in the vested rights theory, pragmatic in the local
law theory, became much more important than the differences
in explaining why foreign law should be applied. For in the last
analysis it is a matter of small consequence how one justifies the
application of foreign law (whether one forms one's own parallel
law, as ín the local law theory, or whether one affords legal protec-
tion to rights which have already been acquired under some
foreign law, as in the vested rights theory). Furthermore, such
an approach supplies no answer to the one important question,
namely, when domestic or foreign law is applicable, and, if the
latter be the case, which foreign law should be chosen.
When it comes to explaining the application of foreign law,
the theories even appear artificial and understandable only in
reference to their historical development. They go back to the
time when the common law of Europe was being transformed and
modified into national law, a process which coincided with the
rise of modern states in Europe and with the realization of
sovereignty Ín the sixteenth and seventeenth centuries. This
development is apparent in the conflicts law of the "Dutchmen"
but can also well be observed in such areas of law as the law of
bills of exchange and, generally, in the Law Merchant. Conflict
of laws has ever since been struggling with the hopeless task of
solving with national means an essentially international problem,
namely, to insure that the same case will be decided everywhere
according to the same law. Both the vested rights theory and the
local law theory stick to the basis of sovereignty. They even bend
over backwards to avoid recognizing that foreign law is applied
at all.
For us, here, it is only important to note that the vested rights
more often than in other fields to choose between conflicting rules. In making
a choice between these rules, it is obvious that here as elsewhere the basis
must be a pragmatic one—of the effect of a decision one way or the other
in giving a practical working rule. In this connection it may be that in some
cases it makes little difference which rule is adopted, so long as it is reasona-
bly clear and definite and after its adoption is not departed from in cases
clearly falling within it, but in others clearly vital problems of social and
economic policy must be considered before a wise choice between conflicting
rules can be made," (Notes omitted.)
(lO,) THE CRISIS OF CONFLICT OF LAWS 109
theory adheres to the traditional system of conflict of laws, while
the local law theory pragmatically seeks new solutions. Only in
such a light is it possible to understand the vigorous attacks
which Currie and Ehrenzweig are persistently making against
Beale and the Restatement.
CHAPTER IV
CURRIE'S PREDECESSORS
y"iURRiE makes only parenthetical mention of comity1 and

Huber,2 but he attacks the vested rights theory as a mortal
enemy. 3 An adherent of the school of sociological jurisprudence,
he finds the vested rights theory barren and conceptualistic. 4
Thus, he has words of sympathy for the pragmatic approach of
Cook, Lorenzen and Cavers.5 He sees them as striving, like the former
Master Aldricus, to apply the law ofthat state whose substantive
law will lead to the best result. 6 To be sure, he is of the opinion
that their counsels "have proved ineffective, as their authors
would freely concede" 7 and that they "beg the question; for the
original question, at least—i.e., the question as it stood prior to
the erection by the territorialists of a structure of false questions
—was precisely: What is the just result?" 8
As his immediate predecessors, Currie cites Mr. Justice
Harlan Fiske Stone and the Harvard Professor of Constitutional
Law Freund.
In Alaska Packers Association v. Industrial Accident Commission of
California? Justice Stone wrote the decision for a unanimous court.
The case involved an action for workmen's compensation for an
accident suffered by a non-resident alien from Mexico, hired in
San Francisco to work during the salmon canning season in
Alaska, where the injury occurred. T h e Supreme Court sanc-
tioned the appUcation of California law on grounds that the
"governmental interest" of California was stronger than that of
i. p . 194, 340.
2. p . 612-613.
3. E.g., p . 458 (note 30), 614-615, 698.
4. p . 183; cf. infra p . 177 note 3 .
5- P- 77» 7 9 - 8 ' . "04-105, 131 (note 19), 133, 154 (note 82), 585-586, 6 1 3 ;
28 Law & Cont. Prob. 754 (1963). Cf. also p . 87 (note 19).
6. p. 104-105, 133, 154 (note 82).
7. p . 104.
8. p . 104.
9. 294 U . S . 532 (1935).
(2l) T H E C R I S I S O F C O N F L I C T OF L A W S III
Alaska and for that reason the application of California law

constituted neither an infringement of the Due Process Clause10
nor of the Full Faith and Credit Clause11 of the United States
Constitution.
In a Harvard Law Review article about Stone, Professor
Freund12 has, according to Currie,13 rendered the service of
stressing the importance of an analysis of state interests. Even
before this, Currie tells us, M a survey of the governmental
interest test, somewhat less vigorous than Freund's, was made by
Professor Hancock15 in the University of Toronto Law Journal.
io. U . S . Const., amend. X I V , § i.

i i . U . S . Const., Art. I V , § i.
i a . Freund, Chief Justice Stone and the Conflict o/Laws, 59 H a r v . L. Rev. 1210,
i a i 6 , 1323 (1946).
13. p . 87 (note 18), 613-614.
14. p . 87 (note 18), 613-614.
15. Hancock, Choice of Law Policies in Multiple Contact Cases, 5 U . T o r o n t o
L. J . <3*. 136-137, 142-143 (1943)-
CHAPTER V
POLICY AND INTEREST
T ^ H E vested rights theory and the local law theory were careful
to make only a. formal application of the lex fori. Currienow
seeks to realize its substantive application.
Every state consciously utilizes the rules of its substantive law
in order to achieve the fulfillment of a certain goal or "policy".1
Such policy may be "social, economic, or administrative". 2
Mostly, Currie has in mind the legislator as policy maker; lesser
importance is placed on the judge as discoverer and interpreter
of already existing common law. 3
Albeit with certain reservations, the state wishes to put through
its policy. The state has an "interest" in the effectuation and
application of its policy.* This is the essence of Gurrie's "govern-
mental interest".5
To be sure, the interest of the government must be "legitimate"
or "reasonable". What this means in practice is not made clear
enough. The words chiefly occur in comments on the conflicts
law of individual states, 6 but are also to be found in tests of
i. E.g., p. 106, 172, 183, 225, 227, 341, 364-365, 367, 441, 445, 484, 6 2 1 ,
627, 637-638, 718 (note 91), 727.
2. p. 189, 383. Cf. p. 62 ("social a n d economic policy").
3. E.g., p. io6, 172, 379, 417, 4 3 0 ; 28 Law & Cont. Prob. 761-762, 768
(1963). Cf. for the contrary view J u d g e C a r d o z o : " I t [the New York Court
of Appeals] is a great common law c o u r t ; it's problems are lawyers' problems.
But the Supreme Court is occupied chiefly with statutory construction—
which no m a n can make interesting— a n d with politics". (Quoted by J a c k -
son, The Supreme Court in the American System of Government, 54 [1955]-)
4. E.g., p. 62, 87, 165, 178, 180, 183, 189, 225, 227, 341, 4 4 1 , 445> 621, 62 7>
637-638, 718 (note 91), 727; 28 Law & Cont. Prob. 772 (1963).
5. E.g., p. 188-189, 277 (note 330), 289, 367, 557, 590, 600 (note 4 7 : "govern-
mental interests only as they are reflected in the outcome of private litigation"),
627, 643, 727; 28 Law & Cont. Prob. 755, 765, 770, 774, 779, 780, 782,
7 8 4 , 7 8 8 (1963).
6. E.g., p. 153 ("legitimate interests"), 167 {"legitimate interest"), 183 ("le-
gitimate basis for . . . an interest in the application of the policy"), 189
("legitimate basis for . . . an interest in the application of its policy", "le-
gitimate interest"), 365 ("legitimately applicable American policy"), 368
("reasonable basis for the application of the governmental policy: i.e.
(23) T H E CRISIS OF C O N F L I C T OF LAWS II3
7
constitutionality of conflict rules. Do they mean that not every
governmental interest in the application of its law is such that
it must be taken into consideration?8 Or is Currie referring to a
maxim of construction and interpretation9 that in doubtful cases the
content of the conflicts law of an individual state is to be ascer-
tained on the assumption that the state pursues only "legitimate"
or "reasonable" interests?
Utilizing an approach of governmental interests, the task of
the conflicts lawyer in any given case would be twofold. It would
first be necessary to determine which policy serves as the basis for
a given rule of substantive law. Next, it would be necessary to
ascertain if the state has an interest in the application of this
policy to the case at bar.10
whether there is a domestic interest in the application of our l a w " ) , 383 ("le-
gitimate interest in, or a reasonable basis for, the application of the policy"),
384 ("application of domestic law . . . consistent with the legitimate further-
ance of domestic policy"), 417 ("legitimate interest", "reasonable basis"),
446 ("reasonably assert an interest in the application of its policy", "legi-
timate scope of its governmental concern"), 704 ("legitimate i n t e r e s t " ) ;
28 Law & Cont. Prob. 757 ("legitimate purpose"), 771 ("reasonably assert
an interest in applying . . . these policies") (1963).
7. E.g., as to the Full Faith and Credit Clause ( U . S . Const., art. IV, § 1) a n d
as to the Due Process Clause (U.S. Const., a m e n d . X I V , § 1) p. 237, 258,
262, 272, 280, 288, 289, 322 a n d 447 (all: "legitimate interest"), p . 162
("reasonable and substantial basis for . . . an interest in applying its policy",
"substantial connection with the case"), p. 204 ("legitimate, or substantial,
interest"), p. 261 ("legitimate governmental interest"); as to the Privileges
and Immunity Clause (U.S. Const., art. IV, § 2) p. 500 ("reasonably assert
an interest in the application of its policy") ; as to the Equal Protection Clause
(U.S. Const., amend. X I V , § 1) a n d at the same time as to the Full Faith
a n d Credit Clause a n d as to the Due Process Clause p. 557 ("legitimate
governmental interests").
8. Cf. infra p. 176, 194.
9. Construction refers to statutes, interpretation to rules of common law:
p. 380, 627.
10. E.g., p . 369-370, 484» 6 2 i .
CHAPTER VI
D E T E R M I N A T I O N O F P O L I C Y AND I N T E R E S T
ry-iHE policy which a legal rule is designed to execute is seldom
stated at all or stated adequately.1 It can remain unconscious.2
Often it can be discovered only after painstaking research.3 For
instance, Currie needed over thirty pages to ascertain the purpose
of a North Carolina statute which precludes a purchase money
mortgagee from obtaining a deficiency judgment against the
mortgagor after foreclosure proceedings had failed to restore the
full amount of the mortgage debt.4 In some cases research runs
against a blank wall. Currie came to this conclusion in relation
to an Illinois statute which denied an action for wrongful death
where the death, as opposed to the accident itself, occurred out-
side Illinois.5
In addition, the interest in the application of the policy is
seldom expressed.6 Statutes, in particular, for the most part use
words like "all", "every", "no", "any", "whoever".7 The
interest, therefore, is to be determined by means of construction
and interpretation of the substantive law? As the substantive law has to
be construed and interpreted in other doubtful cases and must be
construed and interpreted in order to determine if it is to have
retroactive effect, there must be construction and interpretation
in order to determine if it is willing to deal with factual situations
involving foreign states.9
When it appears that the substantive law is following a given
policy and that the state has an interest in the application of this
'• P- 372,592-
a. p. 338.
3. p. 643.
4. p. 384-4Ï5-
5. p. 297-307.
6. p. 592.
7. p. 81, 379.
8. P- 537» 643, 705 (note 46), 727; 28 Law &. Cont. Prob. 755, 759, 761-762,
768-772, 784, 787 (1963).
9. p. 426 (note 166), 434.
(25) T H E CRISIS O F C O N F L I C T O F L A W S I I5
10
policy in individual cases, then it follows that the courts ofthat
state should apply their own law.11
" I n my opinion the authority and only authority is the State, a n d if that be
so, the voice adopted by the State as its own should utter the last word." 1 Z
Since the applicability of domestic substantive law is determined
by its construction and interpretation, the body of law which we
formerly knew as Conflict of Laws disappears! It fades into substantive
law and, on issues involving constitutionality, into constitutional
law.
" [ R ] i g h t l y understood, conflict of laws is a branch of domestic law—indeed,
it is nothing more than the construction and interpretation of domestic law
in the light of possibly conflicting foreign interests." 1 3
The substantive lawyer thus becomes more competent than the

conflicts lawyer. For instance, Currie's conclusion, reached after
diligent research in the law applicable to the right for a deficiency
judgment claimed by an unsatisfied purchase money mortgagee
after foreclosure, is as follows :
" W e have endeavored in these pages to consider what is known as a problem
in the conflict of laws . . . Since the problem is one concerning mortgages,
we have turned to the law of mortgages, in which we d o not claim expertise,
a n d have sought such enlightenment as is available in works on real-estate
practice. Experts in mortgage law a n d real-estate finance could have done
the j o b better. T h e problem turns out to b e one of mortgage law a n d con-
stitutional law." 1 4
In another place he relates:

" O f course, explicit determinations of policy a n d interest in the interstate
context are rare. T h u s it is necessary for the technician to postulats state poli-
cies a n d interests. This h e does by bringing to bear what little he m a y be
able to learn about the history a n d purpose of the domestic law of torts, or
contracts, or mortgages. All of his conclusions as to such matters are tentative,
and subject to modification on tfie advice of those who know better."15
10. I n reality, t h e concept of "interest" in cases involving foreign states

denotes the orbit of the "policy". Although Currie is careful to distinguish
between policy and interest, on occasion the interest rightly appears to form
n o more t h a n a p a r t of the policy, e.g., p . 153; cf. p . 297-307 and supra p .
114 at note 5.
11. E.g., p. 119, 167, 183-184, i8g, 369-370, 690, 695, 701, 705.
12. M r . Justice Holmes in Black <£• White Taxicab Co. v. Brown <5- Teltow
Taxicab Co., 276 U . S . 518, 535 (1928) (dissenting opinion), quoted with
approval by Currie p . 443-444.
13. 28 Law & Cont. Prob. 787 (1963).
14. p . 430.
15- P- 592.
Il6 GERHARD KEGEL (26)
Most substantive law statutes are couched in general phraseology,

as if they were intended to apply to all possible cases, even those
which have no domestic factor, but are merely related to another
state or states.16 Such statutes, similar to the rules of substantive
law at common law, attempt to protect and further the welfare
of their own citizens.17
" W h e n the Massachusetts legislature addresses itself to the problem of mar-

ried women as sureties, the undeveloped image in its mind is that of Massa-
chusetts married women, husbands, creditors, transactions, courts, and j u d g -
ments. In the history of Anglo-American law the domestic case has been
normal, the conflict-of-laws case marginal. Probably this is still true, despite
the much-publicized mobility of modern society. At least it is true in the
thinking of lawyers." 1 8 "[S]tates, like individuals, act primarily for the fur-
therance of their own interests and the interests of their people. . "l9
To these people, therefore, as a rule their domestic law is to be

applied. But what Currie means by the people of a state is not
quite clear. He describes them as people who have their "domi-
cile",20 "domicile and residence",21 "domicile or residence",22
in the state and as "residents",23 "citizens",24 "resident citizens",25
"citizens or residents"26 or as "locals".27 Their state is called their
"home state".28
Difficulties arise when, besides domestic citizens, citizens of
foreign states are involved. Then it must be determined which
party is favored by the rule of the domestic substantive law.
Should this party be a citizen of the domestic state, then domestic
law is to be applied, otherwise not, or in any case, not always.
For example, in Milliken v. Pratt29 the substantive law of
16. Supra p . 113 at note 7.

17. E.g., p . 85-86, 29a, 322, 420, 503, 514, 703-705-
18. p. 82.
19. p . 417.
20. p . 145; cf. contra p. 420.
21. p . 322.
22. p . 145, 292-293; cf. p. 103 ("residence, or domicile, or nationality")
and p. 103 infine at note 41 ("settled residence").
23. p . 86, 253, 292-293, 503, 705.
24. p . 514.
25. p. 417.
26. p . 448.
27. p. 450.
28. p. 322, 327, 420, 438 (note 29).
29. 125 Mass. 374, 28 Am. R e p . 241 (1878), see supra p. 98.
(27) T H E CRISIS O F C O N F L I C T OF L A W S II7
Massachusetts protected commerical transactions, albeit with

one exception : married women could not serve as guarantors on a
debt transaction. Mrs, Pratt lived in Massachusetts, while the
creditors lived in Maine, where married women were under no
such disability. Since Mrs. Pratt's residence was in Massachu-
setts, Massachusetts' law should have been applied and the
complaint dismissed. The court permitted the action since it
found Maine to be the place where the guarantee was made, and
applied Maine law. Currie submits that this was a bad decision.30
He would also be in favor of applying a Statute of Frauds to all
local defendants, even in cases where the contract was made out-
side the state. 31
In torts, Currie's formula favors either the injured plaintiff or the
defendant, if he remained within the limits of permissible conduct.
If either plaintiff or tortfeasor should be a citizen of the state in
which the action is commenced, then the court has to apply the
domestic substantive law. 32 In the event that the injured person
shall have died as a result of his injuries, he cannot be protected
any more. Wrongful death statutes are intended to afford a reme-
dy for dependents or heirs. Since these parties may be widespread
numerically and geographically, convenience and simplicity
suggest that not their law, but the law of the domicile of the
deceased, be applied. 33 The same is true if the tortfeasor shall
have died. T o be sure, here, domestic law is applicable not only
where the tortfeasor was domiciled in the state in which suit is
brought, but it may be applicable also if in that state property of
the deceased tortfeasor is administered. 34
In addition to the protection afforded to the plaintiff and
those claiming directly under him, e.g., his dependents and heirs,
protection is often extended to those who played a role in assisting
the plaintiff after the injury, e.g., first aid crews, hospitals,
30. Cf. p . 86, m , 114.

3 1 . p . 450-451 discussing Lams v. F. H. Smilk Co., 36 Del. 477, 482-483, 487,
178 Atl. 651, 653, 655 (1935), where the court classified the Statute of Frauds
of Delaware as a rule of formal validity of contracts rather than of proce-
dure.
32. E.g., p. 144-145. 703-705-
33- P- ' 4 5 (note 64), 292-293.
34. p . 145-146.
Il8 GERHARD KEGEL (28)
35
doctors, attorneys, and even the public treasury, should no other
recovery be possible and the burden ultimately fall upon society.36
In such cases, if these indirect plaintiffs be citizens of the forum
state,37 or if the forum state might have to pay for the injured
person,38 local substantive law should be applied, but not where
the local substantive law affords no such remedy to indirect
plaintiffs.39
It is possible that the legislature of a given state may have
subscribed to the policy of protecting liability insurance companies.
This would be sufficient to establish an interest in applying
domestic substantive law in cases where domestic companies
were affected. To be sure, Currie, generally, rules out any
consideration of the interests of the insurance companies in
fatality cases on grounds that this "would unduly complicate
the analysis." *° But he considers the possibility that Arizona
might attempt to repeal the abatement rule, which the Supreme
Court of California refused to apply in Grant v. McAuliffe^ and
that the insurance lobby in Phoenix would succeed in defeating
the bill.42 If this had happened, in cases where the insurance
carrier is an Arizona firm, it could be in Arizona's interest to
apply its own law.43
The object of the Automobile Guest Statute of Ontario, which
the New York Court of Appeals declined to apply in Babcock v.
Jackson,** was found by the court to be:
" t o prevent the fraudulent assertion of claims by passengers, in coliusion
with the drivers, against insurance c o m p a n i e s " . "
35- P- 145 ( n o t e 6 4)> H9'l$l> 210, 294, 366, 369, 373, 375, 476, 7 0 1 ; 63
Coi. L. Rev. 1237 (1963).
36. p . 143, 145 (note 64), 148-151, 202, 294, 4 7 6 ; 28 Law & Cont. Prob.
760 (1963}. Cf. p. 731-732, 735 (child support).
37. p . 366, 369-370 (limited), 373 (limited), 476, 7 0 1 ; 63 Col. L. Rev. 1237
(1963)-
38. p . 143, 145 (note 65), 148-149, 202, 476. Cf. p. 732, 735 (child support).
39. p . 151-152, 210, 294.
4 0 . p . 143 (note 61).
4 1 . 41 Cal. 2d 859, 264 P. 2d 944, 42 A.L.R. 2d 1162 (1953);?/"- supra p. 98-99.
42. p . 143.
43. p . 160; cf. p . 168 (note 111), 28 Law & Cont. Prob. 771-772 (1963) a n d
infra p . 147 at note 2.
44. 12 N.Y. 2d 473, 191 N . E . 2d 279, 240 N.Y.S. 2d 743 (1963); cf. supra
p. 100-101.
(29) THE CRISIS OF CONFLICT OF LAWS I I9
The court continued:
"and, quite obviously, the fraudulent claims intended to be prevented by
the statute are those asserted against Ontario defendants and their insurance
carriers, not New York defendants and their insurance carriers. Whether
New York defendants are imposed upon or their insurers defrauded by a
New York plaintiff is scarcely a valid legislative concern of Ontario simply
because the accident occurred there, any more so than if the accident had
happened in some other jurisdiction."" 5
Currie agrees with this decision with one reservation, namely,

that Ontario might pursue a policy of preventing the rise of
liability insurance premiums. Since the premiums are fixed
according to groups of insured persons determined by their
residence, a jurisdiction such as Ontario would have no interest
in applying its own law in a case where, as in Babcock, the insured
party lived in New York. It would be different if the premiums
"were determined on the basis of claims arising from accidents in
Ontario."-17
The assumption that the state is interested primarily in the
protection of its own citizens and for that reason strives to apply
its own law, leads, in the parlance of traditional conflict of laws,
to a rather pronounced preference for the personal statute as
opposed to territorial points of contact. Currie advances the follow-
ing critique of traditional conflicts law:
"The system is territorially oriented; for the most part, it is concerned with
power over things and transactions, and the procedure in courts, largely
ignoring the fact that the dominant concern of law is with people." ,8
For these49 and other reasons which flow from his methodology,50
Currie opposes such traditional conflicts rules as lex loci contractus,
lex loci solutionis, and lex loci delicti. Nor do the more recent tests of
45. 12 N.Y. 2d at 482-483, 191 N.E. 2d at 284, 240 N.Y.S. 2d at 750, quot-
ing Survey of Canadian Legislation, 1 U. Toronto L. J. 358, 366.
46. 12 N.Y. 2d at 483, 191 N.E. ad at 284, 240 N.Y.S. 2d at 750.
47. 63 Col. L. Rev. 1238 (1963); cf. 28 Law & Cont. Prob. 764 (1963).
48. p. 420. The next sentence reads: "In those instances in which it acknow-
ledges the interest of a state in people, it speaks only of the technical concept
of domicile." Cf. supra p. 116, infra p. 189 at note 7.
49. See e.g., p. 86-87, 450-451 (if- supra p. 27 note 31) for his opposition to
the law of the place of contracting and of the place of performance. And
see e.g., p. 144-145 (concerning the domicile or residence of the injured party),
p. 703-705, for his opposition to the law of the place of injury.
50. See e.g., p. 419, 451, 540, 573 for his opposition to the law of the place
"center of gravity" and "grouping of contacts" come in for more

sympathetic treatment. 5 1 He finds unacceptable even the concept
of "protection of confidence'3 in the applicability of a given substan-
tive law, e.g., of the place of contracting in commercial transac-
tions, on the ground that it begs the question, 52 although confi-
dence concerns the personal sphere.
Since in every state its own substantive law is to be applied
where the state has an interest in the realization of its policy, 53 it
follows that private international law and the courts under its
orders have a high political function.5* For this reason Currie,
despite his earlier views, finds himself approving the fact that
the rule in Erie v. Tompkins,55 namely, that there Ís no uniform
federal common law and that the federal courts must apply the
common law of the state jurisdiction in which they sit, has been
extended by the United States Supreme Court in Klaxon56 to
cover the field of conflicts law. 57 For he deems it impossible
" t o develop a rational system of conflict of laws io the abstract, independent-
ly of the policies a n d interests of t h e governments legitimately concerned,
a n d independently of the construction a n d interpretation placed by the
courts of a state upon its laws". 5 8
One could think that in order to fulfill the political task of

private international law, each state should seek the most exten-
sive application of its domestic law. In fact this does not happen.
" T h e short-sighted, selfish state is nothing more than an experi-
mental model." 5 9 Currie recommends instead a "long-range
enlightened self-interest".60 Criticizing the "short-sighted, selfish" 61
of contracting. And see for his opposition to the law of the place of injury,
e.g., p . 145-146 (concerning the administration of property), 539-540, 5 9 1 ;
63 Gol. L. Rev. 1237 (1963).
5 1 . p . 727-728; 63 Col. L. Rev. 1233-1234 (1963}; 28 Law & Coni. Prob.
778 (1963)-
52. p . 419 {note 142).
53. Supra p. 114-115.
54- P- 124- 179, 5 8 2 , 6 2 7 .
55. Erie R. R. v. Tompkins, 304 U.S. 64 (1938).
56. Klaxon Co. v. Stentor Elee. Mfg. Co., 313 U . S . 487 (1941)-
57. p. 281 (note 344), 433, 440, 4 4 3 ; 28 Law & Cont. Prob. 786 (1963).
58. p . 433-
59. p . 616.
60. p . 616; cf. p . 417 ("decency and far-sighted self-interest").
6 1 . p . 616; cf. p. 549 ("short-sighted self-interest").
(3l) T H E CRISIS OF C O N F L I C T OF LAWS 121
62
state, "selfishness and provincialism", he recommends "en-
lightenment and restraint", 63 "restraint and moderation" 64
and "judicial statesmanship".65 "Wise altruism" 66 must insure
the "long-range", 67 "long-term" 68 and "long run" 69 interests.
The policy of the forum state and the factual circumstances of
individual cases should constantly be scrutinized in order to
determine whether a more moderate and restrained interpreta-
tion of interests might not result in restricting the number of
conflicts with other states.70 Even where only the interests of
other states are involved (because the forum state has no interest
in the matter), such an interpretation of the interests of another
state could preclude the application ofthat state's law.71
Enlightened self-interest can have the effect of applying local
law to the main point, foreign law to subordinate points. Thus,
Currie approves of the decision in Kilberg,72 where the $ 15,000
limit of the law of Massachusetts, where the airplane crashed,
was not applied against a New York passenger.73 On the other
hand, according to him, Davenport v. Webb,7* where the death
occurred in Maryland and the New York Court of Appeals
applied the law of Maryland not allowing prejudgment interest
contrary to New York, where a statutory provision authorizes
the addition of such interest,
" m a y be interpreted as a determination by New York not to assert an in-
terest in applying its policy concerning pre-judgment interest . . . T h e court
was simply acting with restraint in defining domestic interests, insisting on
62. p . 191, 447; cf. p . 370 ("immoderate and provincial determination"),

592 ("selfish and provincial determination"), 689 (note 236: "egocentric
or provincial results"), 717 ("egocentric and provincial").
% • P- 7 ! 7 ; çf' 279 ("enlightened a n d restrained interpretation").
64. p. 280, 690; cf. p . 191 ("moderate a n d legitimate interest"), 525 ("ratio-
nal, moderate, a n d controlled pursuit of self-interest").
65. p . 592.
66. p . 446.
67- P- 592. 616.
68. p . 446.
69. p . 517.
70. 63 Col. L. Rev. 1242 (1963); 28 Law & Cont. Prob. 757 (1963)-
71. 28 Law & Cont. Probi. 771, 789 (1963).
72. Kilberg v. Northeast Airlines, 9 N.Y. 2d 34, 172 N . E . 2d 526, 211 N . Y . S .
2d 133 (1961); cf. supra p . 99-100.
73- P- 7"7-
74. i 1 N.Y. 2d 392, 183 N . E . 2d g02, 230 N.Y.S. 2d 17 (1962).
the application of New York law only where the adverse effect of foreign law
on New York's affairs is very severe, and asserting no interest in opposition
to that of other interested states in matters of lesser import." 73
But even the most enlightened self-interest never goes so far as to

strive for uniformity of result, insuring that everywhere the same
law will be applied to the same set of facts,76 thereby discouraging
the practice of forum shopping.77 Whatever uniform point of
reference would be chosen, there will always be cases where the
law of a state which has no interest in the matter will be applied
to the exclusion of a state which does have an interest in the
application of its law.78
75- P- 7'7-7i8.
76. p. 100-101, 159 (note 91), 168-169, *9l> 279, 281-282, 707-709; but
cf. p. 158 (note 86 infine), 569 (as to the Equal Protection Clause, U.S. Const.,
amend. XIV, § 1), 699.
77. p. 168-169; 28 Law & Cont. Prob. 779 (1963);«/! in/rap. 161 atnote 75,
p. 176 at note 28, p. 188 at note 6.
78. p. 101, 191, 709.
CHAPTER VU
INTEREST AND LACK OF INTEREST OF THE

FORUM STATE AND OF OTHER STATES
A state either has or has not an interest in the application of
its substantive law in order to effect a given policy. It
usually has no interest when none of its citizens are involved.1 But
even where its own citizens are concerned, a state still lacks an
interest if its domestic substantive law does not serve to protect
these citizens. No policy, no interest. If those who have helped the
victim of a tort are denied the protection of domestic substantive
law, as for example, in cases where the complaint abates with
the death of the tortfeasor, as in Granì v. McAuliffit,2 or where the
right to damages arises directly to the surviving relatives rather
than to the estate of the deceased, as in New Hampshire and
Illinois, there is no policy and no interest in the application of
domestic substantive law where only the helpers are citizens of
the forum state.3
A policy and therefore an interest in the application of local
law is likewise lacking when a rule of the domestic substantive
law has become archaic, but has, nonetheless, been retained.
This, "if the truth were known," is probably the case with
the Arizona abatement statute, which follows the maxim actio
personalis moritur cum persona.4
On the other hand, Currie takes pains to warn against the use
of conflicts rules to abrogate disagreeable domestic substantive
law without at the same time abrogating such rules in their
entirety in purely domestic cases.5 Conflict of laws should not be
regarded as Úit pacemaker of substantive law. "There is no reason
why conflict of laws should provide a playground for timid
i. Cf. supra p. 116.
a. 41 Cal. 2d 859, 264 P. 2d 944,42 A.L.R. 2d 1162 (1953) ; cf. supra p. 98-99.
3. p. 151-152, 210, 294.
4. p. 143; cf. p. 594.
5. p. 106, i53-'54> 594; 2Ö Law & C o n t - p r o b - 779 ('963Ì-
6
reformers." But also with respect to foreign law he condemns a
non-application because of policy disapproval. 7
If two states have an interest in the application of their respec-
tive substantive laws, it would be inadmissible, from Gurrie's
point of view, to place both interests on the scale and apply the
law of that state whose interest is larger. 8 Such "weighing" ís
essentially a political process and properly belongs to the legis-
lative branch, 9 whether it be in Congress, in the exercise of its
powers under the Full Faith and Credit Clause, 10 or in the legis-
latures of the individual states. The courts are "not equipped to
marshal the facts necessary to inform their decisions in such a
process". 11
To be sure, domestic and even foreign 12 substantive law has to
be tested to determine its underlying policy and whether any
interest in its realization actually exists. But the decision is made
ín accordance with the following rules:
Should the forum state be interested in the application of its
own law, then it must perforce be applied, and any corresponding
interest of the foreign state in the application of its law need not
be considered. 13
Should, however, the forum state have no such interest, and it
can be ascertained that the foreign state does possess such an
interest, then the law of the foreign state should be applied. 14 In
the event that both states lack an interest, domestic law should be
applied in an ancillary capacity. 15
If only one foreign state (out of two or more) is interested in
the application of its law, this law should be applied. 16
The picture becomes somewhat more complicated where only
6. p. 594.
7. p. 106, 153-154-
8. E.g., p. 150-151, 278-280, 357-358, 370, 497, 601-602, 604, 704.
9- P- 357-358) 6°4 (delimitation of "enlightened self-interest", cf supra p.
120-121).
10. U.S. Const, art. IVf § 1. Cf. infra p. 164 at note 10.
11. p. 602. Cf. 28 Law & Cont. Prob. 758, 761, 777 (1963).
12. p. 106, 184. Cf. p. 260, 270 (concerning Constitutional Law).
13. Supra p. 114-115.
14. p. 184, 189, 442-443.
15. p. 152-156, 184 infine, 189 (note 3).
16. Cf. p. 321 (concerning Constitutional Law).
T H E
(35) CRISIS O F C O N F L I C T O F L A W S 125
two or more foreign states possess an interest. Currie considers

such cases to be extremely unlikely.17 Initially devoting only
casual attention to them,18 he later discusses them in detail.19 He
would recommend that such cases be avoided, either by invoking
the doctrine of'forum non conveniens™ or by a moderate construction
of the interests of the foreign states.21 Should this solution prove
to be impossible, the judge should place himself in the position of
the legislator (Congress) and choose the rule of better substance,
that is, the rule which "is the more enlightened and humane
one, and accords best with the needs of our society".22 Alter-
natively, he could always apply the lex fori."
" I do not feel impelled to commit myself irrevocably to either approach at
this time. If I were a j u d g e I think I should prefer application of the law of
the forum to the bolder technique. But then, I a m a pretty old-fashioned
fellow."»
Even this careful position is limited to cases where the law of the
forum state coincides with that of one of the foreign states. In
cases where a conflict arises, e.g., where the forum state has
unlimited liability and one foreign state has seta $30,000ceiling
on damages, while another state has a $ 15,000 limit, the
largest sum which can be awarded is $ 30.000.25 But:
" H a v i n g no idea what kind of problem and what kind of rules would be in-
volved in such a situation, I shall not attempt to say how the choice should
be m a d e . I only record the fact that I am not sure that application of the
17. E.g., 28 Law & Cont. Prob. 765, 77a, 775 (note 84, referring to a deci-
sion of the Bundesgerichtshof in i960 Neue Juristische Wochenschrift 1720
[concerning limitation of action u n d e r the laws of Louisiana a n d Illinois]
a n d its discussion in Kegel, Die Grenze von Qualifikation und Renvoi im interna-
tionalen Verjährungsrecht [1962]), 778.
18. p. 120, 278 (note 337), 434 (note 14), 606-607, 720-721; 63 Col. L.
Rev. 1243 (1963).
19. Currie, The Disinterested Third State, 28 Law & Cont. Prob. 754-794
(1963)-
20. Ib. 767-768.
21. Ib. 768-772.
22. Ib. 778, 788-789. This is carefully differentiated from the "weighing"
of governmental interests. Cf. supra p. 124» infra p . 154-155-
23. lb. 779-780.
24. lb. 780. Currie rejects the "imaginative a n d semi-serious" solution of
treading a substantive law middle road between opposing foreign laws, e.g.,
selecting a middle period for the Statute of Limitations or a middle ceiling
on tort liability: ib. 775, 776.
25. Ib. 780. Cf. (Selected Essays) p. 634.
law of the forum would be justified in such a case, and that there may be
no alternative to the free choice that amounts to the exercise of pure legis-
lative judgment. " "
Currie does not mention cases where the foreign states possess no
interest. But here also the forum state is without interest and,
therefore, the lex fori should be applied.27
Should the forum lack its own law as, for example, an arbi-
tration tribunal or a federal court prior to the Erie2& decision,
then it would be free to decide on the basis of its own choice
between the competing policies and interests.29
From all this, one general rule may be deduced : If only one state
is interested, its law should be applied.30
It may further be concluded that the lex fori will consistently
take priority over other solutions, since it will always be applied
where the forum state possesses an interest.31 For, where the
citizens of several states are before the domestic forum and where
one of the litigants (and only one would suffice) is a citizen of the
forum state, the substantive law of the forum would apply if the
policy of the forum state would embrace the protection of its
own citizens. It is thus obvious that Currie not only belongs to
the "forum faction"™ but has cut a figure for himself as one of its
most outspoken radicals.
On more than one occasion Currie has summarized his
thinking on states' interest or lack of interest.33 His latest contri-
bution is combined with a blow against the Restatement :
"If I were asked to restate the law of conflict of laws I would decline the
h o n o r . . . I volunteer the following as a substitute for all that part of the
Restatement dealing with choice of law. , .
§ 1. When a court is asked to apply the law of a foreign state different
from the law of the forum, it should inquire into the policies expressed in
the respective laws, and into the circumstances in which it is reasonable for
the respective states to assert an interest in the application of those policies.
In making these determinations the court should employ the ordinary
processes of construction and interpretation.
26. lb. 780. Cf. ib. 784-785.

27. Cf. ib. 775 (note 84 infine) and supra p. 124 at note 15.
28. Erie R. R. v. Tompkins, 304 U.S. 64 (1938).
29. lb. 785.
30. Cf. p. 321 (concerning Constitutional Law).
31. p. 119, 169, 183 No. 1, 188 No. 1, 278, 417-418.
32. Supra p. 5.
33. p. 183-184, 188-189; 6 3 C o 1 - L. Rev. 1242-1243 (1963)-
(37) THE CRISIS OF CONFLICT OF LAWS 12J
§ 2. If the court finds that one state has an interest in the application of
its policy in the circumstances of the case and the other has none, it should
apply the law of the only interested state.
§ 3. If the court finds an apparent conflict between the interests of the
two states it should reconsider. A more moderate and restrained interpre-
tation of the policy or interest of one state or the other may avoid conflict.
§ 4. If, upon reconsideration, the court finds that a conflict between the
legitimate interests of the two states is unavoidable, it should apply the law
of the forum.
§ 5. If the forum is disinterested, but an unavoidable conflict exists between
the laws of the two other states, and the court cannot with justice decline
to adjudicate the case, it should apply the law of the forum—until someone
comes along with a better idea.
§ 6. The conflict of interest between states will result in different dispo-
sitions of the same problem, depending on where the action is brought. If
with respect to a particular problem this appears seriously to infringe a strong
national interest in uniformity of decision, the court should not attempt to
improvise a solution sacrificing the legitimate interest of its own state, but
should leave to Congress, exercising its powers under the full faith and credit
clause, the determination of which interest shall be required to yield.
The explanatory note might run a little longer." 34
34. 63 Col. L. Rev. 1242-1243 (Ï963). (Notes omitted.)

CHAPTER VIH
A P P L I C A T I O N IN I N D I V I D U A L CASES
CURRIE has worked out a scheme for the application of his

doctrine to individual cases and it may be of some value to
examine two of them at this time in order to see how the system
operates in practice.
i. Milliken v. Pratt
The first case, much discussed in the United States,1 is
Milliken v. Pratt,2 where a married woman from Massachusetts
guaranteed the debt of her husband to a Maine creditor.3 The
situation was somewhat complicated due to the fact that although
in 1870 when the guarantee was given married women in Massa-
chusetts were still legally protected, this protection was removed
by statute prior to 1878 when the case was decided. However,
following Currie's example,4 we will put this fact aside and
develop the case as if Massachusetts had not removed the incapac-
ity of married women to secure debts. Currie even assumes for
the sake of discussion that an 1869 bill to remove the disability
of married women was defeated by a bare majority of the Massa-
chusetts General Assembly because "married women as a class
are a peculiarly susceptible lot, prone to make improvident
promises, especially under the influence of their husbands". 5
The necessity of observing the interests of both domestic and
foreign states produces a series of combinations which increase
mathematically according to the number of facts which relate to
the state's interest. If, besides the place where the suit is com-
menced, three other factors are examined, namely, in torts, the
domicile (or residence) of the injured plaintiff, the domicile (or
1. Currie p. 77.
2. 125 Mass. 374, 28 Am. Rep. 241 (1878). Cf. supra p. 8, 116-117.
3. Currie discusses the case on p. 77-127, 597-599.
4. p. 80-81,597-599.
5. p. 8i.
T H E
(39) CRISIS OF CONFLICT OF LAWS 120,
residence) of the tortfeasor and, finally, the place of injury, (4 4 =)
256 combinations are possible. If one excludes the (3 4 =0 81
cases in which a state has no connection through any of the above-
mentioned factors (i.e.> the wholly foreign cases where non-
application of the state's own law is obvious) as well as the one
case where a state has contacts through all four of the factors
listed (i.e., the wholly domestic case where application of the
state's own law is obvious), there are (44—3*—1 = ) 174 combi-
nations that might raise the question of the applicability of the
state's own law in the conflict-of-laws sense.6
If, in addition to the forum, four more points of contact come
in for consideration—e.g., since the place of injury is split into
the place of acting and the place where the action takes effect to
cause harm—the number of possible conflict-of-laws cases is
2,ioo! 7
However, in discussing Milliken, Currie tries to "keep the
problem of enumeration within manageable limits" by restricting
himself to four factors,8 namely,
" 1 . The domicile, or nationality, or residence, or place of business of the
creditor;
a. The domicile, or nationality, or residence of the married woman;
3. The place of the transaction, i.e., the place where the contract is made,
or possibly the place where it is to be performed ;
4. The place where the action is brought."
It is further assumed that the subsidiary factors in Numbers 1-3

actually coincide, and that there are only contacts which relate to
Massachusetts and to one other state. The content of the substan-
tive law of this other state is not revealed for the time being.9
Currie thus assembles the following Table i 1 0 :
6. p. 141-142. The formula for the reduction from 256 to 174, cases (i.e.
4*-3 4 -i): p. 142 (note 57).
7. p. 142 (note 58).
8. p. 82-83.
9. p. 83. But cf. infra p. 135 note 36.
10. p. 84.
TABLE I
Factors
Residence of
Residence of the married Place of
the creditor woman contracting Forum
I D D D D All factors domestic (i)

2 F D D D One foreign factor (4)
3 D F D D
4 D D F D
5 D D D F
6 F F D D Two foreign factors (6)
7 D F F D
8 D D F F
9 F D D F
10 F D F D
11 D F D F
12 F F F D Three foreign factors (4)
"3 F F D F
14 F D F F
l
5 D F F F
16 F F F F All factors foreign ( 1 )
The table is discussed only for cases where Massachusetts is the

"domestic" state. But this discussion embraces the event of an
action in a foreign court because this could be of importance in
insuring the recognition of the foreign decision and because the
foreign court might take this into consideration. 11
The policy of Massachusetts is twofold: Mainly it is directed
toward the security of commercial transactions, but there Ís an
exception in favor of a class in need of special protection, namely,
married women, 12 an exception which Maine does not sanction. 13
The interest of Massachusetts in the realization of its policy of
protecting married women was intended for Massachusetts
married women. Residence serves as the point of contact for the
moment. 1 4 Nothing at all can be said in favor of the place of
contracting as a contact factor, although this was the approach
11. p. 85.
Í2. p. 85-86.
13. p. 86.
14. p. 85-86.
(40 T H E CRISIS OF C O N F L I C T OF LAWS I3I
15
taken by the court when it decided Milliken. To be sure, in
cases where Massachusetts married women contracted outside
the state the traditional system of conflict of laws could serve to
prevent the application of the foreign law of the lex loci contractus,
either by invoking public policy or, where appropriate, by refusing
to permit local courts to be used to promote a. fraud on the law,
but:
" W h y not face the fact that the place of making is quite irrelevant; why not
s u m m o n public policy from the reserves a n d place it in the front line where
it belongs?" 1 6
Examination of the place of contracting factor in Table i reveals

(when the purely internal Cases i and 16 are omitted) 1 7 that
Massachusetts law is applied in seven cases (Cases 2, 3, 5, 6, 9,
11 and 13), with foreign law prevailing in an equal number of
cases (Cases 4, 7, 8, 10, 12, 14 and 15). But, of the seven cases in
which Massachusetts law is applied because Massachusetts was
the place of contracting, Massachusetts is the forum state in only
three instances (Cases 2, 3 and 6), while the foreign state serves as
forum in four cases (Cases 5, 9, 11 and 13) ! 18 If, however, Massa-
chusetts were to pursue its self-interest recklessly, that is, not
in an "enlightened" 19 manner, it would apply, or wish to be
applied in the foreign state, its own law in all cases where the
married woman is domestic (Cases 2, 4, 5, 8-10, 14), but not in
the others (Cases 3, 6, 7, 11-13, 15). zo
Currie then considers the cases in which Massachusetts courts
would apply Massachusetts law as the lex loci contractus, if the place
of contracting would be the relevant factor. If one omits again
15. p. 86-89.
16. p. 88; cf. p. 99.
17. Currie does this consistently ; cf. infra note 18, p. 13s n o t e s 1, p . 133 note 29,
p. 135 ad initium and at note 39, p. 136, p. 138 note 5 1 , p. 139, p. 140, p. 141
notes 57, 59, 60, 62.
18. p . 89. A critical comment is perhaps justified at this point. Currie's
conclusions here are somewhat distorted because the purely internal Cases
1 and 16 were omitted. If we were to include them, Massachusetts would
then have a chance to decide on the application of its own law in four cases,
thus matching the four cases where this decision is in the hands of the foreign
state. T h u s we would succeed in achieving the parity which is the necessary
result of dealing with a neutral factor as the place of contracting! Cf. supra
note 17.
19. Cf. supra p . 120-121.
20. p . 89.
Case / as a purely internal Massachusetts case, Cases 2, 3 and 6

appear as follows on Table 2: 21
TABLE 2
Factors
Residence of
Case Residence of the married Place of
Number the creditor woman contracting Forum
a F D D D
3 D F D D
6 F F D D
In Case 2 it makes sense to apply Massachusetts law. Massa-

chusetts women are protected without thereby injuring Massa-
chusetts creditors. To be sure, Maine's interests in the security of
transactions is frustrated, but why should the court refuse to favor
the interests of its own state?22
In Case 3 Massachusetts has no interest in the realization of its
exceptional policy23 of protecting married women, since in this
instance the woman involved was not from Massachusetts.
Moreover, the principal policy24 of Massachusetts, that of
protecting commercial transactions, is subverted. If Maine, where
the legal protection of married women has been abolished, were
the foreign state, no alternative policy of Maine in the protection
of married women would be advanced and the universal policy
of Maine in the protection of commercial transactions would be
frustrated. Maine, to be sure, has no interest here in the pro-
tection of commercial transactions, since the creditor is a resident
of Massachusetts.25 "In short, application of the domestic rule
advances no interest of either state, and clearly subverts an
important interest of Massachusetts itself."26
21. p . go,
22. p. go,
23. Cf. supra p. 130.
24. Cf. supra p . 130.
25. p. 91.
26. p. 91.
T H E
In Case 6, where not only the married woman, but also the
creditor, lives in a foreign state, the application of Massachu-
setts law takes on the character of "officious intermeddling".27
If Maine were the foreign state, its "legitimate interest in the
security of transactions" would be subverted.28
In the three cases where Massachusetts was the place of con-
tracting (Table 2, Cases 2, 3 and 6), only one case (Case 2) is
decided according to the interests of Massachusetts. In the other
cases (Cases 3 and 6), the interest of no state is promoted. Rather,
a situation results where the interest of either one state (the
interest of Massachusetts in Case 3) or the other (the interest of
the foreign state in Case 6) is subverted. "This is, indeed, pecu-
liar behavior."29
Currie then examines the cases in which Massachusetts was
the place of contracting but the action was brought before a
non-Massachusetts court. See Cases 5, 9, 11 and 13 on the following
Table 3 3 0 .
TABLE 3
Factors
Residence of
Case Residence of the married Piace of
5 D D D F
9 F D D F
i D F D F
* F F D F
27. p. 9 1 . As to "officious intermeddling" cf. infra p. 168 at note 7, p. 172

a t note 13, p . 174 a t note 11.
a8. p . 181-182.
29. p . 182. A further critical comment would seem to be in order. If one were
to include the purely internal Massachusetts case (Table i ( Case 1), the in-
terest of Massachusetts (where Massachusetts was the place of contracting)
would be served in two cases (Cases 1 a n d 2), but not in the other two cases
(Cases 3 and 6). And this is only fitting and proper when one factor (the
place of contracting) is replaced by another (the residence of the married
w o m a n ) ! Cf. supra p . 131 note 18.
30. p . 9 1 .
In Cases 5 and g it is "reasonable for Massachusetts to hope

that foreign courts will apply Massachusetts law", since the
woman is a Massachusetts married woman. 31
Case n, where the creditor lived in Massachusetts and the
woman in another state, would correspond to Case 3 in the event
that suit were commenced in Massachusetts. It would thus be
irrational to expect that Massachusetts law would be applied in
Maine (if Maine is the foreign state), where both states had
neglected their interests in the policy of protecting commercial
transactions (even though Maine because of the domicile of the
creditor in Massachusetts, would have no interest in the outcome
of this particular case). 32
Case 13, where the creditor and debtor live in another state,
corresponds to Case 6, where the action is brought in Massachu-
setts. Here, it would be "presumptuous and downright laughable"
for Massachusetts to hope that a foreign court would apply
Massachusetts law. 33 If Maine, as the foreign state, were to
apply Massachusetts law because Massachusetts was the place of
contracting, it would thereby surrender its own interest, as well
as that of Massachusetts, in the security of commercial trans-
actions. 34
Thus, in only two of the four cases where Massachusetts is the
place of contracting (Table 3, Cases 5 and 9) does Massachusetts
have any hope of having its own law applied by a foreign court.
In the other two cases (Table 3, Cases 11 and 13), the application
of Massachusetts law would in fact have the effect of advancing
no one's policy and would, moreover, run counter to the policy
of one state (the policy of Massachusetts in Case M ) or the
policy of the other state (the policy of the foreign state in Case
13). 35
Subsequently Currie makes an equally thorough examination
3 ' - P- 92-
32- p- 92.
33- P- 92.
34. p . 92-93.
35. p . 93.C/I the critical comments supra p. 131 note 18, p. 133 note 29 concern-
ing the balance of results should one factor (place of contracting) be re-
placed by another (residence of the married woman),
T H E
(45) CRISIS OF C O N F L I C T OF LAWS 135
of the seven cases where the contracting is done in a foreign state.

(See Cases 4, 7, 8, 10, 12, 14 and 15.)36 Case 16, which only
concerns a foreign state, has again been omitted.
Table 4 contains those cases where Massachusetts serves as the
forum:37
TABLE 4
Factors
Residence of
4 D D F D
7 D F F D
10 F D F D
12 F F F D
Table 5 contains cases where the foreign state serves as forum:
TABLE 5
Factors
Residence of
8 D D F F
14 F D F F
15 D F F F
Only three cases are shown here, since Case 16 has been left
aside.39
The four cases where Massachusetts serves as forum (Table 4)
36. Beginning at the bottom of p . 93 Currie nearly always takes u p M a i n e

as the only foreign state without mentioning other foreign states. Cf. also
p . 96, 98, 107-109.
37- P- 93-
38. p. 94.
39. For a counterpart of only three cases where Massachusetts is the place
of contracting, cf. supra p. 132.
40
show the following results: In two cases (Cases 7 and 12) the
decision is made in accordance with the interests of Massachu-
setts; in one case (Case 10) Massachusetts sacrifices its own
interests to those of the foreign state; in another case (Case 4) it
sacrifices its own interest without at the same time advancing the
interest of the foreign state, a situation which Currie describes as
"incredibly perverse".41
Table 5, which contains three cases where the foreign state
serves as the forum, produces the following results: In one case
(Case 15) the main interest of Massachusetts in the security of
transactions is advanced without encroaching upon the establish-
ed policy of the foreign state in the security of commercial
transactions; in another case (Case 14) the interest of Massachu-
setts in the protection of married women is sacrificed to the
contrary interest of the foreign state in the security of commercial
transactions; in a further case (Case 8), Massachusetts again
sacrifices its own interest, this time even without serving to
promote the interest of the foreign state.42
In Table 6 (see infra p. 137) Currie summarizes the results of
the cases decided before the courts of Massachusetts, as well as
before the foreign courts when their decisions are important
under Massachusetts law, 43 and which referred to the place of
contracting as a contact factor.44
Again, both cases which concern only Massachusetts (Case 1)

and the foreign state (Case 16) have been left out. If we were to
include them, I and II of Table 6 would then read :
I Domestic interest advanced without

detriment to foreign interests Case No. 1 (D D D D) (4)
Case No. 5 (D D D F)
Case No. 7 (D F F D)
Case No. 15 (D F F F)
II Foreign interest advanced without
detriment to domestic interests Case No. 16 (F F F F) (a)
Case No. 12 (F F F D)
40. p. 93-94.
41- P- 93-
42. p. 95.
43. Cf. supra p. 130 at note 11.
44- P- 95-
T H E
(47) CRISIS OF CONFLICT OF LAWS 137
TABLE 6
I Domestic interest advanced without

detriment to foreign interests Case No. 5 (D D D F) (3)
Case No. 7 (D F F D)
TI Foreign interest advanced without
detriment to domestic interests Case No. 12 (F F F D) (i)
HI Domestic interest advanced at expense
of foreign interests Case No. 2 (F D D D) (2)
Case No. 9 (F D D F)
IV Foreign interest advanded at expense of
domestic interests Case No. 10 (F D F D) (2)
Case No. 14 (F D F F)
V Foreign interest subverted with no ad-
vancement of domestic interests Case No. 6 (F F D D) (2)
Case No. 13 (F F D F)
VI Domestic interest subverted without ad-
vancement of foreign interests Case No. 3 (D FD D) (4)
Case No. 11 (D F D F)
Case No. 4 (D DF D)
Case No. 8 (D DF F)
Currie explains45 that in Table 6 the largest group is VI

(Domestic interest subverted without advancement of foreign
interests). When one takes Group V into consideration (Foreign
interest subverted with no advancement of domestic interests),
then it becomes apparent that in six out of fourteen cases use of
the place of contracting as a contact factor "seems purely per-
verse".46 The domestic interest is advanced in only five cases
(Groups I and III), 4 7 of which two cases (Group III) are at the
expense of the foreign state. These two cases (Group III) corres-
pond exactly to the two cases in Group IV, where the domestic
interest is sacrificed to favor the foreign state. "The deference to
foreign interests appears to have a certain rhythm, but is without
rhyme or reason."48
45- P- 95-96.
46. p. 96.
47. Critical comment: if one includes Case 1, this figure would also come
to six.
48. p. 96. Critical comment: The truth is that the rhythm is perfect, if
Cases 1 and 16 are included. And it could not be otherwise when one factor
(place of contracting) is replaced by another (residence of the married woman).
Cf. supra p. 131 note 18, p. 133 note 29, note 47 supra.
I38 GERHARD KEGEL (48)
Currie then considers the situation "from the point of view of
Maine (i.e., oía state that has emancipated its married women)". 4 9
Here he presents Table I a as a "mirror image" of Table i. 50
TABLE ia
Factors
Residence of
I F F F F All Factors Foreign (i)

2 D F F F Three Foreign Factors (4)
3 F D F F
4 F F D F
5 F F F D
6 D D F F Two Foreign Factors (6)
7 F D D F
8 F F D D
9 D F F D
10 D F D F
11 F D F D
12 D D D F One Foreign Factor {4)
13 D D F D
14 D F D D
15 F D D D
16 D D D D AU Factors Domestic (1)
. In reference to Table i a , Currie notes, inter alia, that Maine's

interest in the realization of its policy of insuring the integrity of
commercial transactions leads to the application of its own
substantive law in those cases in which the creditor and the
married woman live in Maine (Cases 6, 12, 13 [)i6 5 1 ]), as well as
in cases where the creditor is a local resident and the woman
from out-of-state (Cases 2, 9, 10 and 14).52 His opinion, therefore,
is that the interest of Massachusetts in the realization of its
policy of protecting married women leads to the consideration of
their residence, while Maine, on the other hand, has to empha-
49. p. 96. (Emphasis added.) Cf. supra p. 135 note 36.

50. p. 96.
51. Case 16 is not expressly mentioned by Currie p. 97.
52- P- 97-
T H E C R I S I S
(49) ° P C O N F L I C T OF LAWS 139
size the residence of the creditor in promoting its own interest in

the realization of a policy of securing commercial transactions.
The overall result of examining the situation from Maine's point
of view is revealed in Table 6a, which forms a counterpart to
Table 6, the analysis as it would appear from the point of view of
Massachusetts.53
TABLE 6a
I. Domestic interest advanced without

detriment to foreign interests Case No. 12 (D D D F) ( i )
I I , Foreign interest advanced without de-
triment to domestic interests Case No. 15 (F D D D) (3)
Case No. 5 (F F F D)
I I I . Domestic interest advanced at expense
of foreign interests Case No. 14 (D F D D) (2)
Case No. 10 (D F D F)
IV, Foreign interest advanced at expense
of domestic interests Case N o . 9 (D F F D) (2)
V. Foreign interest subverted with n o ad-
vancement of domestic interests Case No. 8 (F F D D) (4)
Case No. 4 (F F D F)
Case N o . 11 (F D F D)
Case No. 3 (F D F F)
V I . Domestic interest subverted without
advancement of foreign interests Case No. 13 (D D F D) (2)
Case No. 6 (D D F F)
Table 6a, like Table 6, omits Cases i and 16. If they were
added, Groups I and II would be increased as follows:
I. Domestic interest advanced without de-

triment to foreign interests Case N o . 16 (D D D D) (2)
Case No. 12 (D D D F)
I I . Foreign interest advanced without de-
triment to domestic interests Case N o . 1 (F F F F) (4)
Case No. 15 (F D D D)
Case N o . 5 (F F F D)
Currie then assembles his data concerning the validity of the

contract in Table y.5i
53- P- 97-
54. p. 98.
TABLE 7
Case
Number Law Applied and Result
1 2 3
2 Mass. 0 Me. + Mass. 0

3 Me. + Me. + Mass. 0
4 Mass. 0 Mass. 0 Me. +
"j Mass. 0 Mass. 0 Mass. 0
6 Me. -f- Me. 4- Mass. 0
7 Me. + Me. + Me. +
8 Mass. 0 Mass. 0 Me. +
9 Mass. 0 Me. + Mass. 0
10 Mass. 0 Me. + Me. +
11 Me. + Me. + Mass. 0
12 Me. + Me. + Me. +
'3 Me. + Me. + Mass. 0
14 Mass. 0 Me. + Me. +
»5 Me. + Me. + Me. +
Key:
+ ^contract valid
o = contract void
column 1 = decision in Massachusetts by furthering the
interest of the forum state
column 2 = decision in Maine " by furthering the interest of
the forum state
column 3 = decision by applying the law of the place of
contracting.
Cases 1 and 16, which were omitted, would yield the following
result :
Case
Number Law Applied and Result
1 2 3
1 Mass. o Mass. o Mass. o

16 Me. + Me. + Me. +
55. Cf. supra p. 135 note 36.

(5l) THE CRISIS OF CONFLICT OF LAWS I41
56
According to Currie, Table 7 serves to confirm: The use of
the place of contracting as the deciding factor :
1. contradicts only the interests of one state (Massachusetts) in
two cases (Cases 10 and 14);
2. contradicts only the interests of the other state (Maine) in two
further cases (Cases 2 and 9) ;
3. contradicts the interests of both states Ín six cases (Cases 3, 4,
6, 8, 11 and 13);
4. coincides with the interests of both states in only four cases
(Cases 5, 7, 12 and 15).57
In ten cases, however, "no real conflicts problem" exists because
the same decisions correspond to the interests of Massachusetts
and Maine 58 (Table 7, Cases 3-8, 11-13, 15).M In six cases the
decisions would stand in contradiction to the place of contracting
factor (Cases 3, 4, 6, 8, 11, 13) and agree therewith in only four
instances (Cases 5, 7, 12 and 15).60 The remaining four cases
(Cases 2, g, 10 and 14) "present real problems . . . that cannot be
solved by any science or method of conflict-of-laws." 61
It is possible to reduce the sixteen cases to four and the four
insolvable cases to one if both place of contracting and forum are
omitted as factors considered immaterial from the standpoint of
interests.62
The following simplified compilation would then apply to
Massachusetts:62
56. p. 98.
57. Critical comment: if we include Cases 1 and 16 there would be six,
rather than four, cases in which the interests of both states coincide. And
this is only to be expected where one factor (place of contracting) is re-
placed by two others (residence of the married woman in Massachusetts
and residence of the creditor [cf. supra p. 138-139] in Maine). Cf. supra p. 131
note 17.
58. Regarding "Maine" instead of the "foreign state", cf. supra p. 45 note 36.
59. Critical comment: 12 cases instead often if Cases 1 and 16 were included.
Cf. supra p. 131 note 17.
60. p. 107. Critical comment: six agreeing cases instead of four if Cases
1 and 16 were included. Cf. supra p. 131 note 17.
61. p. 107.
62. p. 108. This is because, in any relationship between two states, every
factor introduced doubles the number of cases, while every one omitted
cuts the total in half. On p. 108 Currie explains this somewhat differently
since he consistently refuses to include Cases 1 and 16; cf. supra p. 41 note 17.
63. p. 108.
142 . G E R H A R D KEGEL (52)
TABLE 8
Factors
Residence of
Case Residence of the married
Number the creditor woman
1 D D
2 D F
3 F D
4 F F
Massachusetts has an interest in the application of its own law

in Cases i and 3, where the married woman resides in Massa-
chusetts. In the other cases (Cases 2 and 4) no such interest in
the application of Massachusetts law is present.64
The simplified compilation for Maine65 reads as follows:66
TABLE 8a
Factors
Residence of
Number the creditor woman
1 F F
2 F D
3 D F
4 D D
In Case i, Maine has no interest in the application of its own

law. But it has such an interest, because of its policy of promoting
the security of commercial transactions, in Cases 2, 3 and 4-67
Under the heading "Law Applied and Result" of Table g,68
which is arranged like Table 7, we are shown the Massachusetts
64. p. 108.
65. For "Maine" instead of the "foreign state" cf. supra p. 45 note 36.
66. p. 109.
67. p. 108.
68. p. 109.
T H E
(53) C R I S I S O F C O N F L I C T OF L A W S 143
decisions in Column i, the Maine decisions in Column 2 and

"the clearly satisfactory result" in Column 3. w
TABLE 9
Factors Law Applied and Result
Residence of
Number the creditor woman 1 2 3
1 Mass. Mass. Mass. o Mass. o Mass. o

2 Mass. Me. Me. + Me. + Me. -f-
3 Me. Mass. Mass. o Me. + ? ?
4 Me. Me. Me. + Me. + Me. +
" [ T ] h e apparatus designed for the handling of real problems of conflict of

laws"—i.e., the traditional system of conflict of laws a n d its yardstick of
the place of contracting—"generates problems where none existed before"—
i.e., in Cases 1, 2 and 4 of Table g—, " a n d more often than not disposes of
those false problems unsatisfactorily; at the same time, it provides n o more
than the illusion of a solution for the real problems" 7 0 —i.e., Case 3 of Table g.
To be sure, use of the factor of the domicile of the married woman

would "eliminate all the irrational results in the false-problem
cases",71 but such a solution is rejected72 as "an intolerably elusive
factor in commercial transactions".73 And so Currie goes off on a
new tack.
He first turns to a consideration of certain rules for Massa-
chusetts which could be employed in connection with a Massa-
chusetts statute which retains the incapacity of married women
to guarantee the debts of another. 74 This statute could be des-
cribed in a first rule as applicable if both creditor and married
woman are Massachusetts residents (Table 8, Case 1). Similarly,
it could be designated as inapplicable and the law of the foreign
state as applicable in a second rule, where both creditor and
6g. p. 108.
70. p. log.
71. p. 110.
72. p. 103-104, 110.
73. p. 103; cf. infra p. i8g at note 5.
74. p. 110-11r.
married woman are residents of the foreign state (Table 8,
Case 4). 75
A third rule could state:
" 3 . The provisions of this act shall not be applied by the courts of this state,
and should not be applied by other courts, to any case in which the creditor
is a resident of this state and the married woman a non-resident" (Table 8,
Case 2). 76
However, Currie regards such a rule not only as unfair but,

insofar as it affects the citizens of other states of the Union, as an
infringement of the Privileges and Immunities Clause of the
United States Constitution (Article IV, § 2). 77 Such a rule could
be unconstitutional even for foreigners and in any event would
lead to reprisals abroad and it might very well merit criticism as
an attempt by an individual state to conduct its own foreign
policy, a power delegated to the federal government.78
But the constitutional difficulty does not impede any decision
based on states' interests. "We have only to remove the blindfold
to discover a way out of the difficulty."79 Only the content of the
foreign law should be taken into consideration. It is not in Massa-
chusetts' interest to preclude the application of its own law in all
cases where the married woman is a resident of another state,60
nor should it seek to promote always and in all instances the
interests of local creditors at the expense of foreign debtors.81
Rather, Massachusetts should adopt a policy which would avoid
defeating the reasonable expectations of local creditors without
advancing the interests of foreign states.82 Massachusetts law
should thus be applied where the out-of-state married woman is
protected in her home state in the same way as her counterpart in
Massachusetts. Rule 3 would then read :
" 3 . The provisions of this act shall not be applied by the courts of this state,
and should not be applied by other courts, to any case in which the creditor
75- P- ni.
76. p. in.
77. p. 111-112,504.
78. p. ita.
79. p. 113.
80. p. na.
81. p. 113.
82. p. 113.
(55) THE CRISIS OF CONFLICT OF LAWS 145
is a resident of this state and the married woman a nonresident, unless simi-
lar immunity is conferred by the law of the state of her residence."81
The practical result here is the same as if the domicile of the

married woman had been employed as a conflicts factor.81
All three rules may be summarized as follows:
"The provisions of this act shall be applied in all cases in which the married
woman is a resident of this state, or of another state whose laws provide simi-
lar immunity." 81
"The hope that other states will respect this mandate is im-
plied." 85
Maine, surely, would apply its statute removing the disability
of married women where both creditor and married woman were
residents of Maine. Likewise, it would not apply this statute
where neither were Maine residents.87
Where the married woman is a resident of Maine and the
creditor a nonresident, it might be possible, analogous to the
Massachusetts rule, to treat the creditor as he would be treated
in his residence state, that is, should he be a resident of Massa-
chusetts, dismiss the suit, but, should he be a resident of a state
which, like Maine, has removed the incapacity of married women,
permit the complaint to be heard. The rule would then read:
"The provisions of this act shall not apply in any case in which the married
woman is a resident of this state and the creditor a nonresident, unless the
state of the creditor's residence has similarly removed the incapacity of mar-
ried women." 88
However, it is doubtful whether such a distinction is reasonable

enough to overcome the constitutional problems posed by the
Privileges and Immunities Clause.89 The law of domicile may be
of much less importance for persons sui juris and their trans-
83. p. 113.
84. p. 113.
85. p. 114. This formula also covers the case not yet discussed by Currie,
namely, where the creditor is a resident of Maine (or of some other state
which does not protect married women) and the married woman is a resi-
dent of Massachusetts (Table 8, Case 3). Only later does Currie include
this case; cf. infra p. 147 at note 98.
86. p. 114.
87. p. 114.
88. p. 1.15.
89. U.S. Const., art. IV, § 2.
actions than it is for the status or capacity of persons belonging
to protected classes.90 The suggested rule could be directed at
injuring the greatest number of foreign creditors possible. Since
Maine has abolished the legal protection of married women and
Massachusetts refuses to protect Maine women, the application
of Massachusetts' law would frustrate the common policy of
both states of favoring the security of transactions, without
advancing either state's policy of protecting married women.91
It would then be possible to conclude:
"The provisions of this act shall be applied in all cases in which Maine
is the residence of either or both parties." 92
Rules such as these correspond to the "moderate self-interest"93

of both states, contain no real conflict of interests and would be
applied even without any system of choice of law in both states.
Here Currie is referring to Cases i, 2 and 4 of Table 8, 8a and 9
{suprap. 52-53).94
Case 3, where the creditor resides in Maine and the married
woman in Massachusetts, presents the one true conflicts case. It
is precisely this type of case, for which the traditional system of
conflict of laws has presumably been created, which it is helpless
to solve. For, here, the courts would have to "weigh" whose
state's interests take precedence. But for such a task the courts
are not equipped.95 Especially, the domicile of the married
woman appears to be useless, since it gives preference to the
interests of the state whose policy it is to protect the married
woman and works necessarily to the disadvantage of those
states which are pursuing a policy of the security of commercial
transactions.96 Therefore, every state should apply its own
90. p. 115.
91. p. 115-
9a. p. 116. This formula covers the case, not yet discussed by Currie, where
the creditor is a resident of Maine and the married woman a resident of a
state which, like Massachusetts, affords its married women legal protection
(Table 8a, Case 3). However, Currie later indicates that this case has to be
included; cf. infra p. 147 at note 98.
93. Cf. supra p. I20-I3I.
94. p. 116.
95. p. 117-118. Cf. suprap. 124.
96. p. 119; cf. supra p. 130.
T H E
97
substantive law in such a situation. The same results were
already reached in the two rules drawn up for Massachusetts
and Maine.98
Concededly, this is not to be considered a "clearly satisfactory
result"99 since uniformity of result has not been attained. But
then uniformity of result is never attainable from a policy basis.
This becomes evident when the case is tried by a third state in
which neither creditor nor married woman make their residence.
Resort to the place of contracting as a factor would be tanta-
mount to sacrificing the policies of either one or the other state.
It would be cheaper "to flip a coin". Therefore, some kind of
"give-it-up" philosophy is preferable. At least one then has one's
energies free to concentrate on the solution of the "true pro-
blems".100
2. Grant v. McAuliffe
In Grant v. McAuliffe1 Californians were involved in an auto-

mobile accident in Arizona. The negligent driver died as a result
of his injuries and his administrator was sued by the parties in
interest. According to the law of Arizona, the complaint in a tort
action must be filed before the death of the tortfeasor, otherwise
a plea of abatement will succeed. California, on the other hand,
had abolished this same rule by statute in 1949.
It is difficult to determine the policy which Arizona is following
with its abatement rule. In all probability the maxim actio
personalis moritur cum persona is being retained more from inertia
than design. Should the insurance lobby foil an attempt to
abolish the abatement rule by statute in the Arizona state legis-
lature, it would then be possible to discern a definite state policy
of favoring the liability insurance carrier.2 The original reason,
probably, lies in the punitive character of the award of damages.
97. p. 119.
98. p. 120. Cf. supra p. 145, 146.
99. Cf. supra p. 143.
100. p . I 2 0 - I 2 I .
i. 41 Cal. ad 859, 264 P. 2d 944, 42 A.L.R. ad 1162 (1953). Cf. supra p .
8-9> 28, 33-
2. p. 143. Cf. supra p. 118 at note 43.
One could therefore conclude that Arizona wants to apply its
own tort law to torts which take place in Arizona. But this does
not hold true for the abatement rule, which influences no one's
behavior, unless it be credited with giving encouragement to
Kamikaze drivers. Probably the most plausible explanation is
that the legislature is attempting to avoid a situation where the
innocent survivors (heirs and creditors) of a deceased tortfeasor
are asked to redress his delicts.3
However, an interest of Arizona in the realization if its own
policy cannot be accepted if, and only in so far as, the heirs and
creditors are residents of Arizona. They could be numerous and
residents of many states. Therefore, we have to resort to fiction
and to choose, as a symbol, the domicile of the deceased tortfeasor
in Arizona and the administration of his property in Arizona.
Currie accordingly supposes for his following discussion that
Arizona has an interest in the application of its abatement policy
if the deceased had his domicile in Arizona or his ancillary
representative was sued in Arizona.4
The policy which California is pursuing with the abolition of the
abatement rule is protection of the injured party and, in the
event that the victim has no claim for damages and the burden
falls on society, protection of the public treasury.5 California has
an interest in the realization of this policy where the injured party
"is domiciled in (or a resident of) California, and also where he is
present in the state at the time of injury".6 Should the injured
party be dead, his heirs or creditors are entitled to the compen-
sation but, as in the case of heirs and creditors of the dead tort-
feasor, no consideration can be given to the heirs and creditors
of the injured party. 7
Currie then checks the place of injury to determine just how
consistent this factor is with the interests of the states involved. He
restricts himself to cases dealing with Arizona and California,8
3- P- "44-
4. p. 145-146. Cf supra p. 117 at note 34.
5. p. 143.
6. p. 144-145.
7. p. 145 (note 64). Cf. supra p. 117 at note 33.
8. p. 146.
but actually would include all cases in which only two types of
law are involved, namely, those providing absolutely for survival
and those providing absolutely for abatement.9 The sixteen
possible cases are compiled in Table i.10
TABLE I
Factors
Domicile of Domicile of Place of

Case Plaintiff Tort-feasor Injury Forum*
1 C C C C All factors domestic (1)

2 A C C C 1
3 C A C C ( O n e foreign factor (4}
4 C C A C (
5 C C C A]
6 A A C Ci
7 C A A C i
8 C C A A f
9 A C G A / T w o foreign factors (6)
10 A C A C \
11 C A C A J
12 A A A C \
13 A A C A t Three foreign factors (4)
14 A C A A
15 C A A A J
16 A A A A All factors foreign (1)
*Forum, by definition, will be a place where the estate is being administered.

G—California
A—Arizona
If one examines the place of injury factor in Table i, leaving

aside the purely internal Cases i and 16,11 the following results
are apparent: California adopts a course which precludes the
application of its policy in seven cases, i.e., where Arizona is the
place of injury (Cases 4, 7, 8, 10, 12, 14 and 15). In the seven
other cases (Cases 2, 3, 5, 6, 9, 11 and 13) it is able to realize
9. p . 146. (note 71).

10. p. 147.
11. Currie does this consistently : cf. supra p, 131 note 17 and infra p . 150 note
13 and at note 15, p. 157 notes 46, 48, 50, 52, p . 158 note 56, p . 159, p . 160
notes 65-67, p. 161 note 76, p . 162 note 80.
15O GERHARD KEGEL (6o)
itw own policy as forum state in only three of these (Cases 2, 3 and
6).12 In four cases it has to rely on Arizona's choice of California
law through the place of injury factor (Cases 5, 9, 11 and 13).
Arizona law is applied in four cases by the California court
(Cases 4, 7, 10 and 12). In three cases where Arizona refers to
the law of the place of injury, an Arizona court applies domestic
law (Cases 8, 14 and 15).13 "[T]his seems on the face of it an
extraordinarily diffident position for a "sovereign" state to take
concerning a policy that it holds with some conviction."14
Currie then considers the cases in which California law is
applicable, if the place of injury is chosen as connecting factor. He
starts with actions before Californian courts. Excluding once again
the purely internal Case 1, Table 2 would show the following
Cases 2, 3 and 6:15
TABLE 2
Factors

Case Plaintiff' Tort-feasor Injury Forum
2 A C C G
3 C A C C
6 A A C C
In Case 2 the policy of Arizona is not affected since the tortfeasor

was not domiciled in Arizona and left no property in Arizona.
California, on the other hand, does not protect the estates of
deceased tortfeasors and is moreover interested in the application
of its law since it may be bound to come to the assistance of the
injured party. It would constitute a breach of the Privileges and
12. p. 147. Critical comment: If we were to include the purely internal Cases
1 and 16 (omitted by Currie), California as the place of injury would then
have a chance to make its own decisions in four instances (Cases 1, a, 3 and
6)j which would only be right when one deals with such a neutral factor as
the place of injury.
13. p. 147. Critical comment: Case t6 is omitted. Cf. supra p. 149 note 11.
14. p. 148.
15- P- 148-
(6l) THE CRISIS OF C O N F L I C T OF L A W S 151
16 17
Immunities Clause and the Equal Protection Clause if
California were to defeat the claim of the injured party by the
application of Arizona law. In Case 2, therefore, the application
of California law serves to advance the interests of California
without impairing those of Arizona.18
In Case 3 California is doubly interested in the application of
its law since the plaintiff was domiciled in California and injured
in his home state. However, Arizona's interest will suffer since
the estate of the deceased tortfeasor, a domiciliary of Arizona,
will be reduced by the Californiajudgment, at least to the extent
that movables situated in California are available.19
In Case 6 California's interest is less pronounced since it is
based entirely on the coincidence of the plaintiff's presence in
California at the time of the accident. But such an interest is
still noteworthy.20 Arizona is just as interested here as it was in
Case 3. The fact that here the plaintiff's domicile is in Arizona
fails to affect Arizona's interest since the abatement rules serve
to extinguish the plaintiff's remedy where the tortfeasor has died.21
Currie then discusses the four cases in which under the place-
of-injury factor California law is applicable and, therefore,
California should have an interest in the application of its law,
but where the action is brought before an Arizona court. The
following table reproduces these four cases (5, 9, 11 and 13) :22
TABLE 3
Factors

Case Plaintiff Tort-feasor Injury Forum
5 C C C A
A A
9
C
c
A
c A
11
A A
c A
13 c
16. U . S . Const., art. I V , § 2 .
17. U . S . Const., a m e n d . X I V , § 1.
18. p. 148.
19. p. 149.
20. Cf. supra p. 58 at notes 5, 6.
21. p. 149.
22. p. 149.
In Case 5 California is vitally interested in the application of its

substantive law. But Arizona, entrusted with ancillary adminis-
tration of the movable estate of the deceased tortfeasor, also
possesses an interest, however restricted. Should California
law be applied, the interests of Arizona would thereby be
impaired in favor of the interests of California. 23
In Case g Arizona's interest is the same. Although the plaintiff's
domicile is in Arizona, the abatement rule extinguishes his
remedy. An attempt to protect him could, therefore, be held
a violation of the Privileges and Immunities Clause. 24 Cali-
fornia's interest is somewhat less defined since the plaintiff's
only contact with California consists in the fact that he happened
to be present in that state when the accident took place. None-
theless, California must wish the application of its law. 25 Since
the interests of both states are mutually contradictory, the
application of California law by an Arizona court would, as in
Case 5, further foreign interests at the expense of those of the
forum state. 26
In Case 11 the roles ofthe parties are just the opposite of Case 9.
The plaintiffis domiciled in California ; the defendant in Arizona.
Here the interests of both states are again in conflict and Arizona
would be sacrificing its own interests in favor of the interests of
California if it chose to apply California law. 27
In Case 13 California's only interest consists in the fact that
the plaintiff, an Arizona resident, was present in California at
the time of the accident. But this interest is strong since Cali-
fornians, or perhaps even the state treasury, may be obliged to
come to the assistance of the injured plaintiff.28 If the tort-
feasor's estate is located entirely within Arizona, a successful suit
there remains the only alternative. " T h e case for application of
California law is so strong as to make the supposed Arizona inter-
est seem almost frivolous by comparison." 2 9 But since a "weigh-
23. p . 149-150.
24. U . S . Const., art. IV, § 2.
25. Cf. supra p . 148 a t notes 5, 6.
26. p . 150.
27. p . 150.
28. Cf. supra p. 148 at notes 5, 6.
29. p. 151.
(63) T H E CRISIS OF C O N F L I C T OF L A W S 153
30
ing" of interests is inadmissible, Arizona even here has a legiti-
mate basis for the application of its own law. A decision to apply
California law would result in an impairment of Arizona's
interests in favor of the interests of California.31
The next group consists of cases in which under the place-of-
injury factor the law of Arizona is to be applied. Here too, Currie
starts with the cases where the action is brought in California. These
are the Cases 4, 7, 10 and 12 shown in the following table: 32
TABLE 4
Factors

Case Plaintif Tort-feasor injury Forum
4 C C A C
A A C
7 c
A C A
ID
A A A
c
12
c
"In Case 4 the application of Arizona law would make no sense

whatever." 33 California's policy is to protect the injured plaintiff,
who is a domiciliary of California. In addition, California Ís also
the domicile of the tortfeasor, which means that domiciliary
administration of his estate will be handled by California courts.
Even if Arizona were to have ancillary administration, its
interests would necessarily be confined to property situated in
Arizona. Furthermore, Arizona's abatement rule precludes any
policy of compensating those native sons who gave of their
time and talents to help the beleaguered plaintiff; the same
holds true for the treasury of Arizona, should it be compelled to
step in.34 Application of the law of Arizona simply because the
place of injury happened to be in Arizona would have the effect
of injuring the interests of California without advancing those ol
30. Cf. supra p . 124.

31. p. 150-151.
32. p. 151.
33. p. 151. {Emphasis added.)
34. Cf. supra p. 118.
Arizona. This is, by the way, just the situation in Grant v.
McAuliffe. There, despite the fact that the accident took place
in Arizona, the court applied California law to the issue of
whether the estate of the deceased tortfeasor was liable to Cali-
fornia plaintiffs.35
In Case 7 an Arizona domiciliary injured a resident of Cali-
fornia in Arizona. Property of the deceased tortfeasor is being
administered in California. Arizona, as the domicile of the
tortfeasor (and not because the injury occured there),36 has an
interest ín the realization of its policy of protecting the heirs and
creditors of the deceased tortfeasor. California has an interest
in the implementation of its policy of protecting the injured
plaintiff, a California resident. Application of the lex loci
delicti would mean that California courts would be thwarting
their own interests in favor of those of Arizona.37
Case 10, in which a resident of California injured an Arizona
resident in Arizona, represents an instance where both states
possess no interest in the realization of a policy. California has no
interest because the injured party is not a resident of California.
Arizona has no interest because the abatement rule deprives the
injured party of his cause of action. "Neither state cares what
happens." 38 "While the laws of California and Arizona on the
subject of survival of personal injury actions are different, the
policies expressed in those laws are not in conflict here . . . Iden-
tical laws do not necessarily mean identical policies, and different
laws do not necessarily mean conflicting policies, when it is
remembered that the scope of policy is limited by the legitimate
interests of the respective states."39
Currie sees four possible solutions to the "we don't care what
happens" type of case posed by Case io. Three of these are
rejected :
1. the application of the "better", that is, of the sociologically
35- P- i5'-'52.
36. Cf. supra p. 148.
37- p. 152.
38. p. 152.
39- P- 153-
(65) THE CRISIS OF CONFLICT OF LAWS I55
sounder law (here the "more enlightened and humane law"
of California);40
2. the non-application of domestic law to all nonresident plaintifs
(it would violate the Privileges and Immunities Clause of the
United States Constitution);41»42
3. the non-application of domestic law to nonresident plaintiff's
except where the law of the state of the plaintiff's residence provides for
survival of action (for neither has California "a subsidiary
interest in protecting local estates against "punitive" liabili-
ty", nor is the abatement rule concerning the status of the
plaintiff, so that it would be proper to apply the law of his
domicile; the rule could be considered as an attempt to
frustrate and harass as many foreign litigants as possible,
and it is doubtful whether it could withstand a constitutional
attack based on the Privileges and Immunities Clause).43
Currie would therefore recommend a fourth solution, namely,
the application of California law. Given a situation where policies
are lacking in both California and Arizona, "this is the rational
and convenient way to try a lawsuit when no good purpose is to be
served by putting the parties to the expense and the court to the
trouble of ascertaining the foreign law." 44
In Case 12 the parties and place of injury belong to Arizona
and California's only interest contact is to serve as forum. Here
the application of Arizona law would further the interests of
Arizona, without at the same time sacrificing the interests of
California. To be sure, if a California court would construe the
interests of Arizona more narrowly, e.g., as limited to the adminis-
tration of property located in Arizona, then Arizona would have
no interest in the case, and, as in Case i o, California law should be
applied.45
Currie concludes his analysis of the cases in which under the
40. p. 153-154. Cf. supra p. 35.
41. U.S. Const., art. IV, §2.
4a. p. 154-155.
43- p. 155-
44. p. 156. (Emphasis added.) Sec p. 156 (note 85) as to the objection that
unless you know the law of Arizona you do not know that it has nointeiest
in the application of its law.
45. p. 156-157.
place-of-injury factor Arizona law applies, with those cases

where Arizona is the forum. These are Cases 8, 14 and 15 in the
following table: 46
TABLE 5
Factors

Case Plaintiff' Tort-feasor Injury Forum
8 C C A A
'4 A C A A
'5 C A A A
In Cases 8 and 15 the application of the law of the place of

injury serves to advance the interests of Arizona while at the
same time adversely affecting the interests of California.47 On
the other hand, Arizona's interests were furthered in Case 14,
without prejudice to the interests of California.48
The following table presents an overall picture of decisions based
on the place of injury factor, with either California or Arizona as
forum:49
TABLE 6
I. California interest advanced without detri-

ment to Arizona interests Case a ( A C C C ) (1)
I I . Arizona interest advanced without detriment
to California interests Case 12 (A A A C )
Case 14 (A C A A) (2)
I I I . California interest advanced at expense of
Arizona interest Case 3 (C A C C)
Case 5 (C C C A)
Case 6 (A A C C)
Case 9 (A C C A)
Case n(C ACA)
Case 13 (A A C A) (6)
I V . Arizona interest advanced at expense of Cali-
fornia interest Case 7 ( C A A C)
Case 8 (C C A A)
Case 15 (C A A A) (3)
V. Neither interest affected
Case 10 ( A C A C ) (1)
V I . California interest impaired without advanc-
ing any Arizona interest
Case 4 ( C C A C ) (1)
(67) T H E CRISIS OF C O N F L I C T OF L A W S 157
The two cases which concern only one state (California in Case i
and Arizona in Case 16) have once again been omitted. If one
were to figure them in, Groups I and II of Table 6 would be
altered as follows:
I. California interest advanced without detriment
to Arizona interests Case i (C C C C)
Case 2 (A C C C) (a)
I I . Arizona interest advanced without detriment
to California interests Case 12 (A A A C)
Case [4 (A C A A)
Case 16 (A A A A) (3)
Currie notes that the results obtained in dealing with the

place of injury contact factor in Groups IV and VI of Table 6
indicate that Ín four of fourteen50 cases California interests are
impaired. In one of these cases (Group VI) no interest of Arizona
is therewith advanced. In another case (in Group V) California
law would properly be applied. In Group III California's
interests would take precedence over those of Arizona Ín six
cases, but in four of these only if Arizona courts were to apply
California law as the lex loci delicti.11
Currie, interpreting the interests of Arizona^ considers that
these interests are subordinated to those of California in six
cases (group III) out of fourteen 52 cases and that four of these
six cases are decided by Arizona courts themselves. In only three
cases (Group IV) the interests of Arizona take precedence over
those of California. "In addition, Arizona courts might well feel
somewhat silly in demanding subversion of the progressive policy
of California in Case 4 (Group VI) where the result would not
advance any Arizona interest."53
Where the tortfeasor is fully insured, Arizona loses all interest
46. p. 156. Critical comment: if one were to include Case 16, omitted by
Currie, there would then be four cases. Cf. supra p. 149 note 11.
47. p. 157.
48. p . 157. Critical comment: the same would hold true for Case 16; cf.
supra p. 59 note 11.
49- P- '57-
50. Critical comment: 16 cases, if Cases 1 a n d 16 were included; cf. supra
p. 149 note 11.
51. p. 157-158-
52. Cf. supra note 50.
53. p. 158.
in the protection of any of his property which is located within
the state.54 Then, also in Cases 7, 8 and 15, application of
Arizona law, because the accident occurred in Arizona, would
serve to frustrate California policy, without at the same time
promoting a policy of Arizona.55
The cases in Groups I, II and VI of Table 6, that is four
cases,56 present "no real problem", since they would be decided
equally on the basis of the interests of both states. However, use
of the place of injury factor in Case 4, Group VI would result
in a decision contrary to the interests of both states!57
The cases of Groups III and IV, that is nine cases, manifest
genuine problems, "but. . . cannot be solved by any science or
method of conflict of laws."58 Resort to the place of injury as a
contact factor would give preference to the interests of California
in six cases (Group III, Cases 3, 5, 6, 9, 11 and 13) and to
Arizona's interests in three cases (Group IV, Cases 7, 8 and 15)."
Normally, the contact factors of traditional conflicts law play
a neutral role in the determination of state interests. However, in
these cases California is interested in the application of its own
law if the injured party was present in California when the acci-
dent took place (i.e., when the place of injury was in California).60
Therefore, the place of injury as a contact factor always serves
the interests of California. But the result is that the interests of
California will succeed in twice as many cases61 as the interests of
Arizona, which has no interest in the application of its own law,
where the injury occurs in Arizona.62
Also, as Currie indicates in detail, when the lex fori is chosen
as a contact factor, instead of the place of injury, because a
question of the law of procedure is deemed to be involved (i.e.,
54. p. 160, 168 (note 111).

55- P- 159-'ßo-
SO. Critical comment: six cases, if Cases 1 and 16 are included. Cf supra
p. 149 note 11.
57. p. 163.
58. p. 163,
59- P- 164.
60. Cf supra p. 148 at note 6.
61. p. 164.
(69) THE CRISIS OF CONFLICT OF LAWS I59
whether the estate of the tortfeasor can be sued) or when the
domicile of the tortfeasor is chosen as a factor, results are produced
which often contradict the interests of the states.63
Table 7 shows the decisions based on the interests of California
and Arizona where the place of inj ury or the forum serve as factors,
the latter either on the theory that the liability of the estate of the
deceased tortfeasor is a procedural matter or on the theory that it
is a matter concerning the domestic administration of the domes-
tic estate of a deceased tortfeasor:64
TABLE 7

of Tort-feasor
of Plaintiff
Injury
Case
1Í 1 Q
^
a,
S
Ì
1
Interest
a
California Arizona
Interest
3
Place of
Injury
4
Forum
5
Desirable
Result
2 A C C C C* C* C* C*
C A C C C* At C* C* ¡>
3
C C A C C*
4
5 C C C A
c*
C* At
At
C* At
c*
?
6 A A C C At C* ?
C A A C c* c* ?
7
8 C C A A
c* At
At
At
At
c»
At ?
A C C A
c* At C* At ?
9
10 A C A C
c*
— .— At
C A C A At C* c*
At
c*
?
11
A A A C
c*
— At At
12
A A C A At
At
C*
c*
At ?
'3
14 A C A A
c*
— At Af At At
'5 C A A A At At At ?
c*
* Cause of action would survive
t Cause of action would not survive
Cases 1 and i6, which are omitted by Currie, would yield the
following results :
63. p. 164-165 (note 107).

64. p. 166.
16o GERHARD KEGEL (70)
Í $
Í Ä f
% ^ £
| | ^ - 1 a 3 4 5
E E § a California Arizona Place of Desirable
Case (§ Q 5^ [^ Interest Interest Injury Forum Result
1 C C C C C* — C* C* C*
16 A A A A — At At At At
False-problem cases are Cases 2, 4, 12 and 14. 65 T h r e e 6 6 come

before California courts (Cases 2, 4 and 12) and one 6 7 is tried in
Arizona (Case 14). In all cases, except Case 12, the application
of the. lex fori would lead to the same result. If Arizona policy
were to restrict itself to the administration of property located
within the state, 08 Case 12 would resemble Case 10 in that no
state would possess an interest and, thus, California law should
be applied in California. "Hence the rationale of the Grani case
(that the law of the forum governs) cannot do any substantial harm
in future cases, so long as it is understood as a principle for
California courts to apply and not as a universal choice-of-law
rule to be applied by other states." 69
Of the true-problem cases, three appear before California courts
(Cases 3, 6 and 7). California law should be applied, since the
policy of the forum state always prevails. Such a solution would
be even clearer if it were Arizona's policy to restrict itself to the
administration of property located within its borders, 70 thus
precluding Arizona interests in the application of its own law. 71
Six of the true-problem cases are decided in Arizona (Cases 5,
65. Critical comment: Also Cases 1 and i6 if they are included. Cf. supra
p. 149 note 11.
66. Four if Case 1 is included.
67. Two if Case 16 is included.
69. p. 167.
71. p. 167.
(7l) THE CRISIS OP CONFLICT OF LAWS l6l
ll J an( !
8» 9> i 3 i 5)J whose courts display a preference for the
policy of Arizona, notwithstanding the backwardness of the
abatement rule.72
Case io stands by itself. Since both states are uninterested and
California is the forum, California law, as indicated above,73
should be applied.74
Concededly, such an approach serves to undermine the
uniformity of result of the traditional system of conflict of laws and
opens the door to forum-shopping.15 But in reference to our case,
the only possible choice for the forum-shopper would be to avoid
Arizona in those cases where the abatement rule would quash the
complaint and to commence his action in a California court in
those cases in which the suit would be permitted because of
California's abolition of the abatement rule. In half of the
cases a conflict of interests would be avoided by such a change in
forum (for Case 5 becomes Case i, Case 8 becomes Case 4, Case 9
becomes Case 2). In the other half of the cases (Case 11 becomes
Case 3, Case 13 becomes Case 6, Case 15 becomes Case 7) it
remains to be seen whether the courts of California would
abandon the domestic interest in the application of California law
in order to combat the debatable evil of forum-shopping.76
Should Arizona's interest be limited to the administration
of the decedent's estate within Arizona,77 forum-shopping would
eliminate a conflict of interest in all six78 cases.79
Forum-shopping is not necessarily confined to the plaintiff.
The defendant could arrange somehow to be sued in Arizona
(with its abatement rule) in those cases where a suit in California
72. p. 167.
73. Supra p. 124 at note 15.
74. p. 167-168.
76. Critical comment: The transition from Case 14 to Case 10 should also
be included, since in Currie's opinion in Case 10 the law of California pre-
vails; cf. supra p. 155. The transition from Case 16 (cf. supra p. 149 note 11) to
Case 12 would be pointless, since in both cases, according to Currie, the
law of Arizona governs; cf. supra p. 155.
78. Seven if the transition from Case 14 to Case 10 is included {cf. supra
note 76).
79. p. 168-169.
l62 GERHARD KEGEL (72)
under California law would be permitted due to repeal of the
same abatement doctrine. Although the domicile of the deceased
tortfeasor cannot be changed, which means that the defendant
would hardly be able to avoid suit in California in Cases 2, 4 and
io,80 assets could be withdrawn from California before an
ancillary administrator is appointed there in Cases 3, 6, 7 and 12.
Thus, Case 3 would change to Case 11, 6 to 13, 7 to 15, 12 to
1681 and the courts of Arizona would have to determine whether
they should sacrifice their interest in the application of domestic
law in an effort to check forum-shopping.
80. Critical comment: the same holds true for Case /, ¡fit is included; cf.
supra p. 149 note 11.
81. p. 169 (note 112 infine).
C H A P T E R IX
BASIC CONCLUSIONS
Ì^URRIE'S treatment of Milliken v. Pratt and Grant v. McAuliffe1
provides us with an adequate insight into his system in action.
He reasons inductively, not deductively.
He deduces from the substantive law of the forum through
construction of statutes and interpretation of common law rules
when, in cases involving foreign factors, the forum has an interest
in the realization of a policy embodied in its substantive law.
Should such an interest exist, the substantive law of the forum
must be applied.vIn the absence of such an interest, the substan-
tive law of the foreign state should likewise be ascertained by
construction and interpretation and it should be applied, if the
foreign state has an interest in the realization of its policy. Should
both states lack an interest, the lex fori must be applied ; the same
holds true generally if several foreign states are interested.
Currie thus comes up with a system of unilateral conflictsrules.2
He recommends that the legislator supplement his substantive
rules with others which would indicate when these substantive
rules are to be applied in cases involving foreign factors.3
These unilateral conflicts rules, legislative or judicial (through
construction and interpretation) in origin, are thoroughly unique
in that they serve individual rules of substantive law. They are
ad hoc solutions, from Currie's standpoint quite in harmony with
the common law tradition.4 In this they are basically different
from the universal conflicts rules of the traditional system of
conflict of laws which were developed for comprehensive substan-
tive law areas of all states (e.g., for contracts, torts, etc.) and not
for individual substantive rules of individual states.
Currie protests against the traditional universal conflicts
i . p . 77-176.
2. E.g., p. I I 6 - I I 7 J ião.
3. p . 171-172.
4. p . 627.
5
rules. He urges that "for a while, at least, total abstinence should
be enforced."6 Traffic regulations would be an exception, how-
ever, since they "are intended to apply to all vehicles and drivers,
domestic and foreign, in operation within the enacting state, and
to no others." 7 Real property might be included as another
exception.8
To be sure, Congress, empowered by the Full Faith and
Credit Clause,9 could establish uniform conflicts rules for inter-
state conflicts, but no prospect for such legislation appears
likely.10 Until Congress acts, the lex fori should be applied, both
when the forum state has an interest in the application of its own
law, as well as in certain other cases.11
Since this interest should (but not necessarily must) be
"enlightened", the forum could conceivably act with selfishness
and provincialism.12 Extreme cases, however, may be remedied
by a vigilant and intelligent application of Constitutional Law.13
5. p. 170-171, 183,627.
6. 63 Col. L. Rev. 1241 (1963).
7. lb.
8. 63 Col. L. Rev. 1241-1242 (1963).
9. U.S. Const., art. IV, § 1 : "Full Faith and Credit shall be given in each
State to the public Acts, Records, and judicial Proceedings of every other
State. And the Congress may by general Laws prescribe the Manner in
which such Acts, Records and Proceedings shall be proved, and the Effect
thereof."
10. p. 169-170, 182-183, >94> 253> 272, 326, 357, 436-437. 441» 6°3> 7°5;
28 Law & Cont. Prob. 760-761, 778,788-789 (1963). Cf. supra p. 34 at note 10.
11. 63 Col. L. Rev. 1242 (1963).
12. Cf. supra p. 120-121.
Ï3- Cf. p. 572-
CHAPTER X
C O N S T I T U T I O N A L LAW
f-pHE influence of Constitutional Law on conflict of laws is

"an area in which there is little authoritative guidance." 1
Constitutional problems "exist irrespective of the method em-
ployed, though they are obscured by the traditional method." 2
"[A] forthright statement of the interest of the state . . . would
bring to light questions of discrimination long obscured by the
pietism of conflict-of-laws law, and they are not simple problems;
but they ought to be brought to light and resolved, not swept
under the rug by formulas that compromise state policy." 3
Four clauses of the United States Constitution are examined,4
namely, the Full Faith and Credit Clause,5 the Due Process
Clause,6 the Equal Protection Clause 7 and the Privileges and
Immunities Clause.8 In his treatment of these constitutional
issues Currie goes into considerable detail, but for the purposes
of this paper it will suffice if we mention only a few of the high-
lights.
i. Full Faith and Credit Clause
Rules for the Conflict of Laws could be deduced only from the
first sentence of the Full Faith and Credit Clause:1
"Full Faith and Credit shall be given in each State to the public Acts, Records, and ju-
dicial Proceedings of every other State."
Usually one thinks of the clause in connection with the recog-

nition of judicial decisions, e.g., divorce judgments, and with the
recognition of administrative determinations of other states or of
'• P- 57a (note 183).
2. p. 459.
3- p. 420.
4. p. 441.
5. U.S. Const., art. IV, § 1.
6. U.S. Const., amend. XIV, § 1.
7. U.S. Const., amend. XIV, § 1.
8. U.S. Const., art. IV, § a.
1. U.S. Const., art. IV, § 1. See full text supra p. 164 note 9.
public documents which were drawn up in another jurisdiction.

Whether statutes or common law rules of other states are included
remains unsettled. Currie, supported by Ross, Crosskey and
others, is of the opinion that "[t]he Full Faith and Credit Clause
extends not only to the statutes ("public acts") of sister states, but
also to their decisional, or common, law." 2 He cites Cook 3 and
Ehrenzweig 4 as opponents of this view.
Of course, the Full Faith and Credit Clause does not mean
that every statute and every rule of common law of all sister
statesaretobeapplied.Thiswould lead to the complete abdication
of domestic law and introduce chaos into any application of
foreign law. One therefore refers to the conflicts law of the
eighteenth century that was a branch of the law of nations. 5 But
the Full Faith and Credit Clause surpasses the concept of comity
between sovereign states 6 and "takes on greater vitality and
makes more sense as an instrument of federalism if it is inter-
preted and applied in accordance with an analysis of the interests
of the respective states". 7
The Full Faith and Credit Clause "sets certain minimum
requirements which each state must observe when asked to apply
the law of a sister state". 8 Its policy is "that each state shall give
appropriate eject to the public acts, records, and judicial pro-
ceedings of sister states, and shall refrain from intruding its own
notions and policies into matters that are properly the concern of
others". 9 Acting "in good faith" any state can refuse to grant
access to its judicial institutions for the purpose of hearing com-
plaints based on the law of a sister state if such legal traffic would
serve to overburden and abuse the courts. 10
a. p. 196.
3. p. 196 (note 25).
4. p . 285 (note 16), 713 (note 73).
5- P* '99 (note 38), citing 1 Crosskey, Politics and the Constitution in the History
of the United States, 34-37J 552 (1953). Cf. Rheinstein, Das Kollisionsrecht im
System des Verfassungsrechts der Vereinigten Staaten von Amerika, 1 Festschrift für
Ernst Rabel 539"589> at 556-560 (1954).
6. p . 340.
7. p . 341.
8. p . 712. (Emphasis added.)
9. p. 328. (Emphasis added.)
Should a state possess an interest in the application of its own

law, and here too Currie means a "legitimate" or "reasonable"
interest,11 it would not run afoul of the Full Faith and Credit
Clause.12 However, if such interest is lacking, the state may not
apply domestic law,13 but must apply the law of the interested
state.14 Where several states possess an interest, each one has
a right to apply its own law.15
Thus, the application of the lex loci delicti to the claims for
damages of certain classes of beneficiaries which do not belong
to the estate of the deceased tortfeasor could be an infringement
of the Full Faith and Credit Clause if the place of injury had
nothing to do with the parties, or with the contest, but was
quite fortuitous, such as the place where a disabled airplane
happens to crash.16 On the other hand, it normally is quite in
accord with the Full Faith and Credit Clause that a state bar its
courts to the suits of foreigners by means of the doctrine of
forum non conveniens; for it may, e.g., have an interest in avoiding
the overburdening and misuse of its own court system.17
Currie fails to provide us with a convincing summary of the
over-all significance of the Full Faith and Credit Clause for the
conflicts law of individual states. He calls the impact of this
clause first "minimal", 18 then "significant", but "not comprehen-
sive" and one might even say "rudimentary". 19
2. Due Process Clause

The Due Process Clause forms the middle of the second sentence
of Section i of the XIV Amendment, which dates back to 1866
(it came into force in 1868) and reads:
"nor shall any State deprive any person of life, liberty, or property, without due pro-
cess of law".
11. Supra p . 112-113.

12. p . 227-228, 237-239, 258, 271, 273-274, 278, 280, 321, 326, 425, 716-718.
13. p . 3 2 6 , 4 2 5 , 4 4 1 , 4 7 7 .
14. p. 253, 271, 278, 280, 289, 326, 351-352, 355-336 (tax law), 425-426, 556,
713, 716-718.
' 5 - P- 3 2 J , 3 a 6 > 425-
16. p. 701-702.
>7- P- 515-516.
18. p. 162.
19. p. 440-441.
According to Currie, the Due Process Clause prevents the appli-

cation of "grossly unreasonable" choice of law rules.1 To be sure,
any state which has an interest in the application of its own law
has the right to apply it,2 provided the interest be "legitimate" or
"reasonable",3 Furthermore, if a state should lack such an interest
and it be determined that another state possesses an interest, the
court should apply the law of the interested state.4 On the other
hand, it may not apply the law of a non-interested state, regard-
less of whether it be statutory or common law, domestic (as in
most cases) or foreign law.5 "Irrational altruism can be quite as
mischievous and arbitrary as irrational provincialism."6 Such
conduct could be considered "officious intermeddling" 7 and con-
demned as violative of the Due Process Clause.8
In evaluating the significance of the Due Process Clause for the
conflicts law of individual states, Currie reaches the same con-
clusion as with the Full Faith and Credit Clause:9 "minimal", 10
"not comprehensive" or even "rudimentary". 11
3. Equal Protection Clause
The Equal Protection Clause forms the end of the second sentence
of Section i of the XIV Amendment and reads:
"nor [shall any state] deny to any person within its jurisdiction the equal protection
of the laws".
The Clause affords protection against the official activities of a

state, whether they be judicial, administrative or legislative in
character.1 However, cases of conflicts law seldom invoke the
Clause, because the traditional system of conflict of laws avoids
I. p . 162.
a. p . 227-228, 237-239, 271, 280.
3. Supra p . 112-113.
4 . p . 280.
5. p. 196-197, 232, 2 7 1 , 4 4 1 .
6. p . 197.
8- P- 323» 4=9-
9. Cf. supra p. 167.
10. p . 162.
I I . p . 440-441.
1. p . 527.
T H E
2
any apparent discrimination. Thus, we have a "disorderly
state of law in this area". 3
In case of doubt the Clause should be liberally construed. 4
In contrast to the Full Faith and Credit Clause and the Privi-
leges and Immunities Clause and in harmony with the Due
Process Clause, it may be applied in favor of foreigners as well
as domiciliaries of sister states. 5 Furthermore, it is valid for
corporations as well as natural persons, a point Currie does not
decide in regard to the Privileges and Immunities Clause. 6 But
in contradistinction to the Privileges and Immunities Clause, the
Equal Protection Clause may only be invoked by natural
persons and corporations which are located "within the juris-
diction". 7
What "equal" protection is and what its opposite, namely
"discrimination", means, depends on what is the same and what
is different. "Reasonable" classifications are permitted and indi-
vidual states are given broad discretion in this area. 8 Not reason-
able is a classification (similar to what has been found for the
Privileges and Immunités Clause), which favors "residents" or
"citizens", even though it may correspond to the interests of the
state. 9
When a state elects to withhold the benefits of its exemption
laws from foreign debtors, Currie sees a potential violation of the
Equal Protection Clause (and also, in respect to citizens of
sister states, of the Privileges and Immunities Clause). 10 To be
sure, he cites two "only cow" cases (where cows belonging to an
out-of-state debtor wandered across the state line and were
attached by vigilant creditors) as evidence that the debtor was
successful in invoking the X I V Amendment in an attempt to
have the court apply the local execution law exempting "one
2. p . 5 4 ' .
3- P- 552-
4- P- 529.
5. p . 311, 527; but cf. p. 520 (note 269 infine).
6. p . 527.
7- P- 53 0 -536.
8. p. 441, 530; 28 Law & Cont. Prob. 774 (1963).
9- P- 538. 550.
10. p . 548.
11
cow" from attachment levy. On the other hand, a Pennsylvania
case is cited where the State Supreme Court refused to sanction a
statutory exemption of $ 300 from the proceeds of a sale of local
real property belonging to an Ohio debtor. 12 The decision was
probably justified since it was intended to prevent a foreign
debtor from claiming the exemptions of his own state's law when
sued there. But neither this case nor others, apparently, take a
position on the constitutional question involved. 13
In Currie's opinion, the Equal Protection Clause would be
violated by:
(a) application of the Statute of Frauds of the place of contrac-
ting; 1 4
(b) protection of charitable enterprises according to the law of
the place of injury (as in Kaufmann v. American Youth Hostels,
6 App. Div. 2d 223, 177 N.Y. 2d 587 (igffl^f.suprap.QQ) ; 15
(c) application of the law of the place of injury in order to
determine liability for injuries resulting from an illegal sale
of alcohol; 16
(d) protection of the purchaser of land against a deficiency
judgment in favor of the vendor—mortgagor according to
the lex rei sitae.17
4. Privileges and Immunities Clause

T h e Privileges and Immunities Clause forms the first paragraph
of Section 2 of Article IV of the United States Constitution 1 and
reads :
11. Haskil v. Andros, 4 Vt. 609 (1832), (the debtor was a Canadian), and
Hill v. Loomis, 6 N.H. 263 (1833), (the debtor was a resident in Vermont),
discussed by Currie on p. 545-546.
12. Collón?s Appeal, 2 Pennypacker 130 (Pa. 1882), discussed by Currie on
p. 546-547-
13. p. 548 (note 101). Only in Collón? s Appeal (as Currie indicates) attorneys
for the defendant debtor contended that "[a]n exemption law which allows
the citizens of Pennsylvania the privilege of exemption, and forbids it to
citizens of Ohio, would be in violation of the Constitution of the United
States: Ward v. Maryland, 12 Wallace, 418" (2 Pennypacker 131 infine).
14. p. 580.
'5- P-576-577-
16. p. 577.
17. p. 427.
1. The Privileges and Immunities Clause is not to be confused with the be-
(8l) T H E CRISIS OF C O N F L I C T OF LAWS 171
l
' Tke Citizens of each State shall be entitled to all Privileges and Immunities of Citi-
zens in the several States."
The Privileges and Immunities Clause, like the Full Faith and
Credit Clause, is valid only in relation to the other states and,
unlike the Equal Protection Clause and the Due Process Clause,
has no application to foreign nationals.2 The Equal Protection
Clause is an extension, introduced by the XIV Amendment, of
the Privileges and Immunities Clause, in protecting foreigners,
though only when they are "within the jurisdiction",3 a quali-
fication not applicable to the Privileges and Immunities Clause.4
The Privileges and Immunities Clause, like the Equal Pro-
tection Clause, tends to further the application of (favorable)
domestic law to foreigners,5 albeit unlike the Equal Protection
Clause, it has no application to corporations.6
Contrary to former opinion, the clause deals not only with
privileges and immunities which are "fundamental" or which
are connected with the status of citizenship as such, but also has
force in such private law areas as tort claims, dower, parity of
creditors' rights, statutes of limitation and statutes of frauds.7
In these private law fields, unjustified discrimination against
the foreigner is not permitted.8 Just as in the Equal Protection
Clause, "reasonableness" constitutes the test.9 The mere restriction
by a state of the application of domestic law to its own „citizens"
or "residents" is neither a violation nor in accord with the clause.10
Where a state has no interest in affording the protection of its
law to nonresidents, this would not constitute adequate reason,
within the meaning of the Privileges and Immunities Clause, to
ginning of sentence 2 of Section 1 of the X I V A m e n d m e n t : " N o State shall

make or enforce any law which shall abridge the privileges or immunities
of citizens of the U n i t e d States." Cf. Currie p . 460 (note 33) ; Corwin, The
Constitution and What it Means Today, 12th ed., 248-249 {1958).
2. p . 456.
4- P- 475-
5- P- 5 ' 9 -
6. p. 467.
7- P- 523-
8. p. 441, 504.
9. p . 4 4 1 , 474, 524; 28 Law & Cont. Prob. 774 (note 82) (1963)-
10. p . 524. Cf. p. 511, 574-575 as to forum non conveniens.
refuse such protection, even in cases where the protection, if

granted, would not serve the stated policy of a sister state.11
Looking at the problem from the opposite angle, if a state,
motivated by "altruistic interest", should propose to grant the
protection of its law to nonresidents, it may not do so, because of
the Full Faith and Credit Clause and the Due Process Clause,
where such protection would interfere with a "direct" or
"specific" interest of a sister state.12 This would amount to
"officious intermeddling". 13
However, where the application of domestic law would mean
the extension of benefits to everyone, and would correspond to the
interests of all states by avoiding the cycle of retaliation and reci-
procity,11 these benefits must also be extended to nonresidents.15
Should Ohio, for example, permit damages for wrongful death,
it must extend this permission to cover cases where the victim Ís a
nonresident whose home state provides no such remedy.16
In the event that domestic law affords protection only to
certain designated groups, it could then be reasonable to extend such
protection to nonresident members of such groups only in
cases where protection is provided by the home state too.17 Thus,
if a Massachusetts court had been called upon to decide Millikan
v. Pratt,18 and the facts were such that Mrs. Pratt was a resident
of Maine, a state which, contrary to Massachusetts, did not
protect its married women, Massachusetts would be justified in
refusing to extend its law to protect Mrs. Pratt, a member of a
special group.
The Privileges and Immunities Clause opposes "provincial or
hostile attitude towards citizens of other states"19 and thereby
serves to sanction the analysis of conflict of laws from the point
of view of governmental interest.
n. p. 524. Cf. p . 500 as to community property conflicts law of Louisiana.

12. p. 4g5, 496, 498.
14. Cf 28 Law & Cont. Prob. 775 (note 83), 7765 784 (1963).
15. p. 508,524-
16. p. 519-520.
17. p . 524-525; cf. 28 Law & Cont. Prob. 774 (note 82) (1963).
18. Supra p . 98, 38-57.
19. p . 525-
(83) T-HE CRISIS OF CONFLICT OF LAWS 173
"That method counsels the rational, moderate, and controlled pursuit of
self-interest; it also counsels that self-interest should be subordinated freely,
and even gladly, to the constitutional restraints required and made possible
by federal union." 20
5. Similarities and Differences in the Clauses
The principal significance of the clauses lies in the field of

interstate law. Only the Equal Protection Clause and the Due
Process Clause have any application to foreign nationals.1
All four clauses could compel a state to place its courts at the
disposal of a potential litigant. But when the Full Faith and
Credit Clause and the Due Process Clause do this, they thereby
force the court to apply the substantive law of a sister state. Only
the Equal Protection Clause and the Privileges and Immunities
Clause may, although compelling the forum state to take the
case, give it the option of applying its own substantive law.2
To be sure, should the Equal Protection Clause and Privileges
and Immunities Clause require the application of a substantive
law, the required substantive law is always the law of the forum.
The Full Faith and Credit Clause and the Due Process Clause, on
the other hand, require the application of the substantive law of
another state. This could very well place the court on the horns of a
dilemma.3
If, for example, the case should involve the application of the
California workmen's compensation act to a citizen of another
state injured outside of California, the following points could be
considered : "On the one hand, there is force in the argument. . .,
that a state may reasonably draw the line of classification where
its interests end. On the other hand, there is persuasiveness in
the argument that the very purpose of the federal union, and
specifically of the Privileges and Immunities Clause, was to
avoid the "painful cycle" of provincialism, retaliation, and reci-
procity to which such classifications may lead, and that each
state must therefore extend to citizens of other states the benefits
20. p. 525; cf. 28 Law & Cont. Prob. 774 (note 82) (1963).
2- P- 350-351 (not mentioning the Due Process Clause).
3. p. 447, 4 86, 524, 539.
4
that it provides for its own." Thus, in the latter case the Califor-
nia workmen's compensation law would have to be applied in
favor of a nonresident employee injured out-of-state, with the
California employer paying the costs.
Closer examination may reveal that the truth lies somewhere in
the middle.5 It may be possible that a state, although it has no
interest in an out-of-state plaintiff, may be compelled by the
Equal Protection Clause and the Privileges and Immunities
Clause to apply its own workmen's compensation law, thus
favoring the injured plaintiff at the expense of the local employer.
On the other hand, application of the domestic workmen's
compensation law where also the employer is a nonresident could
constitute a violation of the Full Faith and Credit Clause and the
Due Process Clause.6
"It is one thing for a state to be generous to nonresidents at the expense of
its own residents and enterprises; it is quite another to be generous to non-
residents at the expense of other nonresidents, or even of residents, or local
enterprises, whose activities bring them within the protection of another
state's policy". 7 "In the pursuit of its altruistic interests, a state must stop
short of trenching upon the interests of other states. . ,"fi
Should a state have no interest in the application of its own law

and should such application interfere with the policy of another
state having a direct interest in the matter, then the Privileges
and Immunities Clause and the Equal Protection Clause do not
require the application of domestic law,9 and such application,
moreover, would represent a violation of the Full Faith and
Credit Clause and the Due Process Clause.10 The state which
chooses to apply its own law would leave itself open to a charge of
"officious intermeddling".11 Since the Full Faith and Credit Clause
and the Due Process Clause have been more highly developed
4. p. 490.
5. p. 490.
6. p. 538-539-
7- P- 4-95-
8. p. 495.
9. p. 495-498 (concerning the Privileges and Immunities Clause) ; cf. supra
p. 171-172.
10. p. 28g, 323 (concerning the granting of permission to sue in domestic
courts), 429, 446; cf. p. 448.
11. Cf. Supra p. 133 at note 27.
(85) T H E CRISIS O F C O N F L I C T O F L A W S 175
in practice, one would have to give them preference in case of

doubt.12
The decision concerning the constitutionality of the application
of domestic or foreign law always requires an analysis of the
governmental interests of the states concerned.13 Any "weighing" of
conflicting state's interests is just as objectionable here 14 as it ís
in the conflicts law of the individual states.15 Rather, a state
which has a legitimate interest in the application of its law may
apply it constitutionally.16
Constitutional law reigns supreme where there is no local
interest present. Should a foreign state possess an interest, then
under the Full Faith and Credit Clause and the Due Process
Clause the law of the foreign state must be applied;17 should no
foreign state be interested, then under the Equal Protection
Clause and the Privileges and Immunities Clause domestic law
is to govern.10
Using such an approach, the traditional conflicts law factors,
e.g., the place of injury and the place, where the contract is made, may
be unconstitutional.19 Thus, the place of injury as a factor has
been held unconstitutional in some workmen's compensation
cases.20 It would also have been unconstitutional in Grant v.
McAulijfe21 had the injured party been a resident of Arizona and
the suit been brought in California.22
Constitutional law, as Currie understands it, represents both a
confirmation and endorsement of his system of self-contained
conflict rules for the individual states, as well as a further blow
against the traditional system of conflict of laws. It serves the
12. p . 486, 524.
13. p . 215, 227-229, 238, 241. Cf. supra p . 165 at note 3.
14. p . 203-205, 237, 240, 253, 255, 258, 271-273, 278, 280, 358, 497, 7ofi;
28 Law & Cont. Prob. 778 (1963).
15. Supra p. 124.
16. Supra p. 167 at notes 11, 12, p . 78 at notes 2, 3.
17. Supra p . 167 at notes 13, 14, p. 78 at note 4, p. 82 at notes 12, 13, p. 84
a t notes 9-11.
18. Supra p . 169 at note 10, p . 81-82 at note 11.
19. p. 307 (use of the place of injury is unconstitutional " a t least so far as
the right of access to local courts is concerned"), 539-54°-
20. Supra p. 173-174.
21. Supra p. 98-99, 147-162.
22. p . 571.
additional purpose of checking the exaggerated egotism of the
individual states. The Full Faith and Credit Clause and the Due
Process Clause protect against excessive reluctance to apply
foreign law, the Equal Protection Clause and the Privileges and
Immunities Clause protect against excessive reluctance to apply
the law of the forum.23
It is difficult to distinguish between the two functions of
constitutional law, namely, its role in supporting and confirming
Currie's system and its role in discouraging exaggerated egotism.
The difference is most pronounced—at least apparently—where
the Equal Protection Clause and the Privileges and Immunities
Clause require the application of domestic law despite the lack of'
a domestic interest. However, "interest" has perhaps a double
meaning to Currie. It would seem that in one breath he speaks of
it objectively, that is, as the really substantiated interest of a state
("legitimate", "reasonable" interest),24 and in the next breath
subjectively, that is, as an interest really without foundation,
exaggerated and egotistical, but one which nevertheless can be
highly effective.25 If this be so, then the Equal Protection Clause
and the Privileges and Immunities Clause require the application
of local law in circumstances which indicate that an interest in
such application is subjectively lacking and objectively present.
Conversely, the Full Faith and Credit Clause and the Due
Process Clause require the application of foreign law where an
interest—the application of the forum law—is subjectively
present, but objectively lacking.
23. E.g., p. 440-441, 447-448, 57a. Cf supra p. 164 at notes 12. 13.
24. Cf. supra p. 112-113.
25. Cf. supra p. 123-124.
C H A P T E R XI
RELATIONSHIP TO THE TRADITIONAL

S Y S T E M O F C O N F L I C T O F LAWS
f-pHE traditional system of conflict of laws differs in its very

essence from the theory of governmental interests.1 It fails
to take policies into consideration2 and is therefore conceptualis-
tic.3 It is without a rational basis,4 mindless,5 ruthless,6 arbitrary, 7
hypnotic,8 mystic,9 intoxicating.10 It Ís an apparatus,11 a ma-
chine.12
Currie gives us a sarcastic description of how this machine
operates:13
" [ W ] e have constructed a machine for the solution of such problems. N o
other goal being apparent, we have, in the construction of the machine,
given uniformity of result primacy over all other considerations. T o this end,
we have adjusted the machine so that, for any imaginable case, one a n d only
one state can be identified whose law should be applied by all states. W h e n
a confi ict-of-Iaws case comes before a court, the court is not supposed to
adjudicate it—that is, to bring its intelligence to bear upon the reason a n d
policy and history of the laws in question, and their application to the facts
a t h a n d , so as to d o justice to the parties u n d e r law. H e is supposed to feed
the d a t a into the machine, using certain standard procedures, a n d to write
down as his decision the result that comes out of the machine. H e is not
supposed to question the wisdom, or soundness, or justice of the result, nor
to think, or even talk, in terms of competing policies.
Now, what happened in the Grant case is pretty clear. T h e judges fed
the d a t a into the machine in the usual way, but, when the machine's answer
came out, they couldn't swallow it. T h e y rebelled against the machine. T h e y
adjudicated the case. Using discretion a n d intelligence, a n d having regard to
the fact that it was a lawsuit they were trying, they looked for a result they
i. p . 447.
2- P- '53> 435. 454-
3. p. 99, 162-163, 183, 271, 275, 277 (note 330).
4. p. 607.
5. p. 161.
6. p. 161.
7. p . 607, 709.
8. p . 99.
9- P- 734-
10. 63 Col. L. Rev. 1241 (1963).
11. p. 109, 185.
12. p. 138-140, 161, 165, 637.
13. p. 138-139. (Note omitted.)
178 GERHARD KEGEL ' (88)
could live with. They saw no purpose, in reason or policy, to be served by

applying Arizona law to cut off the rights of the plaintiffs when the tort-
feasor died—at least, no purpose that seemed important in comparison with
their obligation to decide the controversy between the parties properly. So
they decided the case their way. This was a kind of insubordination on their
part, of course; acting that way, they might open a whole Pandora's box
of troublesome problems which the law has stowed safely away, out of sight
where they will not cause us any trouble. Doubtless they felt a bit uncomfort-
able, as anyone might who has departed from the ordained path. So they
went back to the machine a n d fed the same d a t a into it again, this time using
a somewhat different procedure. After pressing the button marked " P r o c e -
d u r e is governed by the law of the forum, substance by the law of the place
of the wrong," they pressed the b u t t o n marked " P r o c e d u r a l " instead of the
one marked "Substantive". This time the machine came u p with the answer
that the court h a d arrived at independently. Again the court fed the d a t a
into the machine, this time pressing instead a button referring to adminis-
tration of decedents* estates. Again the machine came forth with the judges'
own answer. T h e y were able, then, to h a n d down their own decision, a n d
to show that the same result would be yielded by the machine, given two
procedures different from the one that first suggested itself."
Traditional law of conflict of laws is incapable of solving real

problems and generates sham problems to take their place.1*
One such sham problem would be classification,15 which is
"inherently a question-begging process".16 The direct testing of
policies and interests in their realization serves to eliminate
classification problems.
Another sham problem is renvoi. If both states lack an interest
in the application of their own law, the case is easily solved by
applying the lex fori.11 Only where foreign states are interested
and the forum state uninterested, can renvoi play a role.18
Public policy is another sham problem.19 It is obvious that
domestic law will be applied in cases where the forum state has
an interest in seeing it applied. Such would be the more rational
approach.20 Currie finds it unbelievable that the Kammergericht21
refused to apply German law in a case involving the complaint
14. p . 180-182, 189; 63 Col. L. Rev. 1241 (1963); 28 Law & Cont. Prob.
763-764 (1963).
15. p. 184, 381-382, 640.
16. p , 640.
17. p. 184-185; 28 Law & Cont. Prob. 775 (note 84) (1963); cf. supra p . 34
at note 15,
18. a8 Law & Cont. Prob. 782» 784 (1963). But cf ib. 784-785.
19. p . 288-289, 660, 710.
20. p . 289.
2 i . 1939 Deutsches Recht 1012 (it is probable, Üiough not stated by the
court, that the fiancée was G e r m a n ) .
(8g) T H E C R I S I S OP C O N F L I C T O F L A W S 179
for damages of a German fiancée, and he sanctions a decision of

the Bundesgerichtshof22 to apply German law (although the
only basis for the application was public policy).23
According to Currie, the preliminary question does not properly
belong within the sphere of conflict of laws.24
Moreover, the traditional system of conflict of laws is con-
sidered as "not emanating from any very clearly defined source".25
It is to him supranational law 26 and strives to attain international
uniformity of result,27 a goal which should perforce be abandoned.28
Only occasionally does Currie betray any sympathy for
international uniformity of result,29 the interests of order and the
interests of commerce, as tasks of private international law.30 On
the whole he places little value in the "simplicity, uniformity,
certainty, and predictability"31 or "security, simplicity, equality,
uniformity, and predictability"32 of the traditional system of
conflict of laws. He is of the opinion that all of these alleged
advantages do not lead to the law of a given state. They could
be attained as well if one were to "flip a coin" 33 or, also to make
the result predictable, if one were always to apply the law of the
state first in alphabetical order,34 or the law of Alaska or Rwanda
or Burundi !3S
22. 28 Entscheidungen des Bundesgerichtshofes in Zivilsachen 375 (1958).

23. p. 710.
24. p . 177-178; 28 Law & Cont. Prob. 756 (1963).
26. p. 590.
27. E.g., p . 189, 707-709.
29. Cf. supra p. 122 note 76 infine.
30. p. 186-187 (general legal order, reasonable expectations); 384, 418 (pre-
dictability of court decisions). Cf. p . 122 (fairness to litigants), 143 (rights
of the litigants), 168 (justice to the parties).
31. p . 69g; 28 Law & Cont. Prob. 783 (1963).
32. p . 708; cf. 28 Law & Cont. Prob. 759, 777 (1963).
33. p . 121, 608; 28 Law & Cont. Prob. 776, 785 (1963).
34. p . 6og, 7 2 1 ; 28 Law & Cont. Prob. 776 {1963).
35- P- 699.
C H A P T E R XII
CRITIQUE1
i. Governmental Interests
/^IURRIE'S doctrine is radical and must be examined at its

very foundation. This foundation is the doctrine ofgovernmental
interests, that is, the idea that states are interested in realizing
certain policies by means of the application of their own substan-
tive law to cases involving foreign elements.
To be sure, the state, a political abstraction, has no interest in
and of itself. But influential people within the state can and do
have interests. They may be members of the government, since
Currie speaks of "governmental" interests. Or they may be
members of state legislatures turning out the statutes and ordi-
nances, since Currie mostly has in mind the statutory law. He
insinuates, for example, "that we could buttonhole in the state-
house corridor the personification of the Massachusetts General
Assembly", in order to quiz it on its ideas of conflict of laws. 2 To
the courts or the people in general Currie seems to give no credit as
carriers of governmental interests.
We probably come closest to understanding what Currie
i. For other critiques see e.g., Kelso, The Process of Analyzing Choice of Law
Problems, 1959 Wash. U . L. Rev. 37-66, 55-61 (1959); K r a m e r , Interests and
Policy Clashes in Conflict of Laws, 13 Rutgers L. Rev. 523-564, 538-544, 560-
564 (1959); Roger J . Traynor, Is this Conflict Really Necessary?, 37 Tex. L.
Rev. 657-675 (1959); Sumner, Choice of Law Rules: Deceased or Revised?, 7
U.C.L.A.L. Rev. 1-26, 13-17 ( i 9 6 0 ) ; Hill, Governmental Interest and the Con-
flict of Laws—A Reply to Professor Currie, 27 U . Chi. L. Rev. 463-504 (i960) ;
Weintraub, A Method for Solving Conflict Problems, 21 U . Pittb. L. Rev. 573-
592 ( i 9 6 0 ) ; Leflar, Conflict of Laws, 36 N . Y . U X . Rev. 36-61, 38-39 (1961);
Ehrenzweig, Choice of Law : Current Doctrine and " True Rules", 49 Cal. L. Rev.
240-253, 243-248 (1961), for the most part repeated verbatim in A Treatise on
the Conflict of Laws, 348-351 (1962); Michael T r a y n o r , Conflict of Laws: Pro-
fessor Currie's Restrained and Enlightened Forum, 49 Cal. L. Rev. 845-876 (1961);
Bridges and Segal, The Second Conflicts Restatement of Torts: A Caveat, 51 C a l .
L. Rev. 762-791, 779-782 (1963); Heini, Neuere Strömungen im Amerikanischen
Internationalen Privatrecht, 19 Schweizerisches Jahrfauch fur internationales
Recht 31-70, 47-61 (1964); C h e a t h a m 62 Mich. L. Rev. 1475-1478 (1964),
book review.
2. p . 81-82.
(gì) T H E CRISIS OF C O N F L I C T OF LAWS l8l
means by a carrier of a governmental interest when we examine

the parliamentary legislator, although here one would be better
advised to speak of "political" or "public"', rather than "govern-
mental" interests. More particularly, we could assume that the
legislator is either passing a statute in order to realize some new
policy, or that he is confronted with an old policy stored away
in statutes or rules of common law and that he endorses this
policy by leaving the existing law in force.
The legislator, however, is far more interested in affairs of
state than with matters concerning individuals. He is constantly
involved in such areas as the procurement and distribution of
public funds, the economy, the labor system, communications,
schools, health, protection against crime, police, military affairs,
etc., and spends considerably less time on the legal problems
arising out of the personal, family and property rights of indi-
viduals.
Affairs of state are of far greater importance than affairs of
private persons. The weal and woe of the state, its energies and
strength or, if one wishes to employ a somewhat more unfriendly
epithet, its power are important for everybody. Legislators and
governments are striving to maintain and advance them. They
serve only the home state, no other. The very essence of a state
consists in the fact that it represents an autonomous delimited
zone of welfare and political power.
It is therefore concluded that the legislator has a strong
interest in seeing his own public law applied in as many instances
as possible, restricting the application of foreign public law to as
few cases as possible. Every state will, to choose a few examples,
apply, as a rule, its own tax, social insurance, currency, expro-
priation and criminal law. It will restrict the application of
foreign public law to those cases where
(a) the foreign state's law is limited to the administration of its
own internal affairs, i.e., where the foreign state respects the
limits of its own power (an interest in international order,
here, supports the application of the foreign public law) 3 or
3. For this idea in the fields of international expropriation, currency a n d

anti-trust law see Kegel, Internationales Privatrecht, and ed., 391-392, 404-405,
(b) the foreign state and the forum state happen to be pursuing
common political aims.4
Affairs of private persons, on the other hand, present an al-
together different situation. To be sure, even here political
convictions can have an important influence. If suffices to recall
such sensitive legal problem areas as marriage before a clergyman
or before a civic official; prohibition or allowance of divorces;
equality of the sexes; equal rights for illegitimate children; or
the areas especially vital to the private laws of the "free world",
namely, the guarantees of freedom of contract, property and
inheritance. Several of these principles have been written into
national constitutions, thus affording public protection to
essentially private rights.
However, in all of these cases the issue is not the power of the
state, per se, but rather the correct and proper ordering of
relationships among private parties. Justice, not power, is at
work. On the other hand, e.g., anti-trust law, in so far as it does
not secure the interests of private competitors, but the public
interest in free competition in the private sector of the economy,5
presents an example of public law administration of the private
right to buy and sell.
Since the weal and woe, the power of the state is not at stake
in private law, the state does not decide its own affairs, but
affairs oí others. It Ís playing the role of judge, not of litigant. It
does, of course, all it can to guarantee law and order, and many
principles of a private law nature have been afforded constitutio-
nal sanction. But the state does not suffer, it is not hurt, if in
408-410 (1964). This book will be cited rather frequently here, not from
conceit, but rather for reference to the views of the author.
4 . F o r expropriation by governments in exile during the Second World
W a r , see the famous cases of Lorentzen v. Lydden & Co. [194a] 2 K.B. 202
(not followed in Bank voor Handel v. Slatford [1951] 2 All E.R. 779); Anderson
v. N.V, Transandine Handelsmaatschappij, 289 N.Y. 9, 43 N . E . 2d 502 (1942);
State of the Netherlands v. Federal Reserve Bank of New Tork, 201 F . 2d 455
(2d Cir. 1953). Cf. also 34 Entscheidungen des Bundesgerichtshofes in
Zivilsachen 169 ( i 9 6 0 ) : a contract between G e r m a n firms for the sale
of borax which was intended to be resold to Denmark a n d from there to
the East European Bloc was held void on the ground that it violated the
public policy (bonos mores) in weakening the U . S . embargo, if, furthermore,
there was a conspiracy to perpetrate a fraud on the American authorities.
5. Kegel, op. cit., 408-410.
some cases as, for example, where foreign law is applied, a

decision is reached which it does not consider to be in the best
interest of justice.
The legislatures are slow in the enactment of statutes relating
to private law. Codified law, where it exists, mainly represents
the collection, selection and restatement of legal principles which
have already received their validity in the courts, quite in-
dependently of any legislative activity. When the German Civil
Code was being debated in the Reichstag, the delegates occupied
themselves for hours with the almost ridiculous question of
whether owners of the right of hunting should be saddled with
the responsibility for compensating land owners for damage
caused by hares ! 6 A great deal of contract law is developing
under general conditions of contract, standard forms of contract
and otherwise into a "New Law Merchant" 7 . Private law has
thus a certain degree of independence from state control. The
state gives its benevolent sanction to a defacto system of private
law rather than bringing this system into existence by legislative
fiat.
This is no doubt an exaggeration, but a necessary one if we
are to underline the essential difference between public and
private law. The state has an altruistic rather than egoistic
interest in private law, concerning itself primarily with a just
ordering of private life. In this respect even its domestic private
law is not "its own" private law; it rather strives to seek the
best and fairest solution for all men. Therefore, the application
of foreign private law does not run counter to the nature and
identity of the state. On the contrary, the application of foreign
private law does not even disturb the state; foreign private law
represents only another answer to the question oïjustice. No state
has a monopoly of justice nor does it wish to ever acquire such
a monopoly.
Here lies the basic error of the many theories which attempt to
explain why foreign law should be applied at all; the comitas
6. 4 Stenographische Berichte über die Verhandlungen des Reichstags, I X .
Legislaturperiode, I V . Session, 1895-1897, p. 2821-2852 (1896). Cf. Seagle,
The Quest for Law, 292-293 (1941).
7. Cf. infra p. 257-262.
doctrine, the vested rights and local law theory, Currie's govern-
mental interests, the Italian reception theories,8 and the doctrine
of unilateral conflicts rules (Pilenko9, Quadri 10 , and others).
They all place too much stress on the concept of sovereignty
and neglect the difference between state's interests and the
search for justice inherent in private law!
In contradistinction to public law, the state has no interest
in the field of private law in applying its own law to the maximum
exclusion of foreign law. If under domestic law the widow takes
one half of the estate while the rest goes to the children, it would
be possible, in cases where there is a strong connection with a
foreign state, e.g., where the decedent was a foreigner or left
behind realty located abroad, to apply foreign law and give the
widow one fourth and the children three fourths of the estate.
This, too, is a question oíjustice. Even assuming that domestic
substantive law is in every way the most just solution (a rather
large assumption!), its application might perpetrate an injustice.
What is considered as the best law according to its content,
that is, substantively) might be far from the best spatially, that
is to say, where it relates to a set of circumstances arising abroad.
Law is not just an armor fixed onto life. It is the guiding
principle for human actions. It is that element by which man
directs himself or, in cases of breach and infraction, the court
compels him.11 Law affects not only those who consciously obey
it and those who consciously break it. It exercises an impercepti-
ble influence in a thousand indefinable ways by promoting an
unconscious acceptance of legality and legal order. It could
therefore be unjust to judge an individual according to a legal
system other than his own, even where the foreign system claims
to be "substantively" more just. For example, it would not be
fair to subject the marital rights of a married couple living abroad
to the law of the state in which they are temporarily residing
rather than to the law of their home state, where they grew up,
where they were married and to which they intend to return.
8. See De Nova, 28 Law & Cont. Prob. 812-813 (1963).
9. Cf. infra p . 110.
10. Cf. infra p. 200-201.
i r . Kegel, op. cit., 33.
(95) T H E CRISIS O F C O N F L I C T O F L A W S 185
One must be ready, therefore, to accept the concept of a

specific justice of conflict of laws, as distinguished from the justice
of substantive law. By effectuating the justice of conflict of laws,
the state does not usurp a function of the law of nations. In
pursuing a policy in conflicts law a state does not use its "sover-
eignty"; its interest, here, is no greater than its interest in the
realization of a policy in the field of substantive law. On the
other hand, a state does not infringe, governmental interests or
the "sovereignty" of another state when it determines the extent
of the application of the foreign state's law in the domestic
forum. The state does nothing else than make decisions of
conflicts justice which do not differ basically from its decisions
of substantive-law justice. The search for justice is the same.
To be sure, it would be better if conflicts law were uniform for
all states. But it would be even better, although it is unfortunately
not the case, if substantive law itself were unified.
The fact that the state stays completely within the boundaries
of justice in its conflicts law decisions becomes somewhat more
apparent when we realize that a rule of substantive law may not
be applied as if it were isolated and self-contained. Every such
rule is qualified by numerous conßicts rules. Alongside the rules of
international and interstate conflicts law, there are rules con-
cerning the relationship of federal to state law, concerning the
application of old and new law and concerning the interrelatio-
ship of the various substantive law rules themselves (e.g., the
priority of lex specialis over lex generalis).12
One must therefore free oneself of the idea that conflicts law
has no place in cases of a purely domestic nature or Ín cases which
concern a single foreign state. Such an approach may be convenient
and practical for the purely domestic case. 13 But it lacks de-
finition and therefore it is inappropriate (and even confusing)
when Curric, mathematically inclined, often omits the purely
domestic and foreign cases (Cases i and i6). 1 4 Even the border-
line case must be fully evaluated.
12. Cf. Kegel, op. cit., 12-21.

13. Cf. Kegel, op. dt.,\.
14. Cf. supra p . 104 note 17, p. 149 note 11.
2. Private Interests
T h e Justice we are seeking in private international law demands
an evaluation of interests, just as does any other legal decision.
However, here we are concerned not with governmental interests,
but with the interests of'private persons, be it interests of individual
parties or interests of undetermined persons, which might be
called the interests of commerce.
Moreover here, as in all areas of law, we see the interests of
legal order. For rules of law must be practical; they must not be
overramified, nor can they be allowed to rely too much on
facts that are hard to prove, e.g., on events in the soul of a man. 1
In those affairs to which the private party has an intimate
relationship such as personal, family and inheritance rights, it ís
natural to apply the law of that state with which the party is
most closely linked. For the sake of order and uniformity, this
cannot be ascertained in individual cases according to fluctuating
and unstable criteria. It must rather be determined with
reference to the broadest possible mean. Domicile and nationality
have been, until now, the customary factors. Which one is
chosen presents a fundamental question.
The interests of the party himself are best served by application
of the law of the state of which he is a citizen. For in most cases it
will be this state which is also the state where he grew up,
learned to acquire respect, consciously or unconsciously, 2 for his
social obligations and whose law, in the last analysis, he has come
to accept and trust.
In most cases the law of domicile stands in less intimate re-
lationship with the individual. T o choose the lex domicilii means
to give consideration to the interests of others with whom the
party is living, that is, to the interests of the local society in which
the foreigner has established his domicile, in other words, the
interests of commerce.
These interests of commerce are also protected, apart from the
domicile factor so suitable for personal, family and inheritance
i. Concerning the interests which relate to the search for justice in private
international law, see Kegel, op. cit., 33-46.
2. Supra p . 184.
rights, by the lex loci contractus for the form of the contract, by
the lex rei sitae for things ((since most people come into contact
with a moavble or immovable thing in the place where it is
located) and by the lex loci delicti for torts (since tortfeasor,
victim and helping third party are able to follow this law with
the most ease and certainty). To be sure, in torts, with the
exception of traffic regulations, the common interests of the
parties could be given priority, as in the Grant1 and Babcock2
cases.
The interests of commerce may also dictate that, in matters
which bear a close personal relationship to the litigant, the law
of the place of contracting be applied rather than the personal
statute, be it the law of nationality or the law of domicile. Thus,
where the majority of a minor is reached sooner in the state of
contracting than in the state whose national he is, or in his
domiciliary state, or where restrictions on the capacity of married
women exist in the law of the nationality or domicile, but not
in the law of the state of contracting (as in Milliken v. Pratt,3
although concededly a case of special type 4 ), the lex loci contractus
might be applicable.
The interests of order play a vital role in the determination of
legal rules. In conflict of laws, moreover, there are special
interests of legal order.
Thus, it is often necessary to apply the law of two different
states in order to decide the same case, thus resulting in gaps and
overlaps. For example, if a Greek residing in Athens wanted to
visit Hamburg from time to time in order to see his illegitimate
child by a German woman residing there and the mother denied
him permission to do so, an overlapping would result if one
were to decide on the relationship between father and child by
Greek law (the father may visit the child) and on the relationship
between mother and child according to German law (the mother
1. Grant v. McAuliffe, 41 Cal. 2d 859, 264 P. 2d 944, 42 A.L.R. 2d 1162
( ' 9 6 3 ) ; cf. supra p . 8-9, 28, 33, 57-72.
2. Babcock v. Jackson, 12 N.Y. 2d 473, 191 N . E . 2d 279, 240 N.Y.S. 2d 743
(1963); cf. supra p. 10-11, 28-29.
3. Milliken v. Pratt, 125 Mass. 374, 28 Am. R e p . 241 (1878); cf. supra p. 8,
26-27,38-57.
4. Cf. infra p. 190-191.
5
may keep the child away from the father). There is a definite
interest here in avoiding solutions containing gaps, overlaps and
contradictions, i.e., there is an interest in substantive uniformity
(homogeneity) of result.
Another essential interest of order is the interest in international
(or interstate) uniformity of result. However, since every state has
to insure the achievement of justice on its own, these interests
are, despite widespread opinion to the contrary, rather sharply
delimited. No state will give in to another on important points
in the absence of a comprehensive and satisfactory international
or interstate agreement. Here, even if for other reasons, namely,
for considerations of justice rather than governmental interests,
I share Currie's restraint.6
The interests of the parties, of commerce, and of order could
all lead to the application of foreign substantive law if the
decision were based on considerations of justice in the area of
conflicts law. However, foreign substantive law may deviate so
markedly from considerations of justice embodied in the sub-
stantive law7 of the forum that its application would result in
a substantial miscarriage of justice. In such an event it would
not be applied because it would constitute a violation of public
policy.
Justice, together with the interests which it regulates, cannot
be devided into disconnected parts, that is, into a justice and
interests in the area of substantive law and a justice and interests
in conflicts law. The interests of conflicts law predominate as a
rule, but in exceptional cases the interests of substantive law
prevail. Accordingly, justice in the field of conflicts law regularly
takes precedence over that of substantive law, and the rules of
conflicts law govern; but as an exception, in cases where the
application of foreign substantive law would violate the public
5. For priority of the law of the father, see Oberlandesgericht Bremen 1964
Neue Juristische Wochenschrift 555 a n d Kegel, op. cil., 113.
6. Supra p . 3a at note 77, p. 71 at note 75, p. 8g at note 2 8 ; cf. Kegel, op.
cit., 38.
7. Cf Neumayer, Zur positiven Funktion der kolltsionsrechtlichen Vorbehaltsklausel,
a Vom Deutschen z u m Europäischen Recht, Festschrift für H a n s Dölle,
179-208 (1963).
T H E
policy of the forum, justice in the field of substantive law is

given priority over that of conflicts law and the foreign sub-
stantive law is not applied.
3. Points of Contact
According to Currie, every state has to take care of its own people,
applying domestic law for this purpose. l " What married women?
Why, those with whose welfare Massachusetts is concerned, of
course — i.e., Massachusetts married women."2 Surprisingly
enough, however, he gives us no exact answer : residence, domi-
cile, citizenship—all appear in combination or alternatively.3
Domicile is criticized in one place as a "technical concept".4 In
another place it is rejected as an "intolerably elusive factor in
commercial transactions";5 but here Currie is probably thinking
about the need for the protection of commerce, which he,
though, condemns in another passage as "question begging".6
On this point, an important and much discussed area in the
traditional system of conflicts of laws, Currie's doctrine remains
somewhat clouded and uncertain, lacking precision and clarity.
Spatial factors have been placed aside. Currie finds fault with
the traditional system of conflicts of law because it favors them. 7
We are again surprised by his conclusions. For spatial factors are
part and parcel of the stock in trade of conflicts law: statuta
personalia and statuta realia, personal and territorial sovereignty,
lois permanentes and lois générales, and the interests of parties or of
commerce are only a few outstanding examples. Spatial factors
may very well be deemed to serve to aid people, both as indi-
viduals and as members of the general public. On the other
hand, the application of many legal rules of a state may be
considered as limited to property located in its territory, as has
been demonstrated in the law of international expropriation and
1. Supra p. 116.
2. p. 85.
3. Supra p. 116.
4. Supra p. 11 g note 48.
IQO GERHARD KEGEL (I0°)
currency. 8 Currie's theories leave these facts unchanged. He

finds a niche, however, for isolated employment of spatial factors,
namely, in traffic regulations 9 and, with even more restraint,
for real property. 10
In contracts, Currie opposes the place of contracting and the
place of execution as points of contact. 11 But both have long
since lost their credit. Almost everywhere the place of contracting
and the place of execution have been replaced by the autonomy
of the parties 1 2 (or a grouping of contacts 13 ). Use of the auto-
nomy of the parties is to be justified by reference to the interests
of the parties themselves. 14
T o be sure, reference to the intention of the parties would not
solve the problem in MiUiken.15 This case is carefully chosen as
one which lies in a dark corner of the traditional system of con-
flict of laws. Nevertheless, it offers no basic difficulties. Maine
should regard the guarantee prohibition as a by-product of the
marriage and apply the law of Massachusetts to a married woman
who is a United States citizen and whose customary residence is
in Massachusetts. This would correspond to the interests of the
parties (husband and wife). Commerce in Maine, whose law
recognizes no probihition on guarantees, should be protected, but
only where the wife gives the guarantee in Maine (unlike in
MiUiken in Massachusetts). This would meet the interests of
commerce. 16 I would, inter alia, disagree with Currie 1 7 in so far
as, in my opinion, Massachusetts should not apply its guarantee
8. Kegel, op. cit., 395-397» 4°4-

11. Supra p . 119 at notes 50, 5 1 , p . 40-41.
12. Cf. for England: Dicey, Conflict of Laws, 7 t h ed. ( J . H . C. Morris General
Editor), 717-738 (1958); for F r a n c e : Batiffol, Traité élémentaire de droit inter-
national privé, 3 r d ed., p . 586-587, 617-626, 672 (1959); for Switzerland:
78 Entscheidungen des Schweizerischen Bundesgerichts I I 74, 83-87 (1952);
for G e r m a n y : Kegel, op. cit., 227-231.
13. Cf. for New York: Autenv. Auten, 308 N.Y. 155, 124 N . E . 2d 99, 50 A.L.R.
2d 246 (1954).
14. Kegel, op. cit., 36, 227.
15. MiUiken v. Pratt, 125 Mass. 374, 28 A m . R e p . 241 (1878); cf. supra
p . 8, 26-27, 38-57> 97-
16. Kegel, op. cit., 281-282.
17. Supra p. 55 at note 85, p . 56-57 at notes 97, 98.
(iOl) T H E CRISIS OF C O N F L I C T OF LAWS 191
prohibition where the contract was concluded in Maine. But this

is a rather delicate question.18 On the other hand, if the wife had
given the guarantee in Massachusetts, Maine, despite Currie,19
should apply Massachusetts law: he who deals with foreigners
abroad must take into account the peculiarities of foreign law.20
In torts, Currie takes issue with the place of injury as a contact
factor.21 However, even the devotees of a "proper law of tort"
do not try to crush this pillar of traditional conflicts law,22 and
fundamental attacks against it have been made, aside from Currie,
only by Ehrenzweig.23
In the Grant case24 Currie assumes that Arizona and California
have different interests. Arizona wanted to protect heirs and
creditors of the tortfeasor with the abatement rule. It would
therefore be interested in the application of its own law if the
tortfeasor was domiciled in Arizona or left behind property there.25
California, which had repealed its abatement rule, wanted to
protect the injured party and all, including the public treasury,
who might come to his aid. It therefore would seek to apply its
law if the injured party was a domidliary (or resident) of California
or was staying over Ín California at the time of the accident.26
Here we note that the necessary symmetry is missing. One man's
meat is another man's poison. The legal order must not be
measured by a double standard. The same factor should be
chosen for both the retention of the abatement (Arizona) and its
abolition (California).
Currie appears somewhat careless here when he includes for
California the interests of those who have helped the injured party
18. Cf. Kegel, op. cit., 201.

19. Supra p. 146 at note 92, p. 146-147 at notes 97, 98.
20. Kegel, op. cit., 282.
21. Supra p. 119 at notes 4g, 50.
22. Cf. Morris, The Proper Law of a Tort, 64 H a r v . L. Rev. 881-895, 894
(1950/51); Binder, Zur Auflockerung des Deliktsstatuts, 20 Rabel's Zeitschrift
für ausländisches und internationales Privatrecht, 401-499, 478-485 (1955)-
23. Ehrenzweig, A Treatise on the Conflict of Laws, 541-597 {1962), who strongly
favors the lex fori.
(1953); cf- suPra P- 8-9> 28, 33, 57-72, 97.
ig2 GERHARD KEGEL (IQ2)
after the accident (although he is speaking here only about the state
of California and its responsibilities in the event the injured party
should become a burden on society) 27 and also when he concludes
that California law may be applied solely on the basis of the
fortuitous presence of the injured party in California at the time of
the accident. The claims of those who have helped the injured
party after the accident should not be heard where a conflicts
rule on torts is debated. The good Samaritan has to take
the injured party as he finds him, with or without a claim for
damages based on the appropriate tort statute, with or without
liability insurance on the tortfeasor and in the presence or
absence of property belonging to the tortfeasor. In any event,
fiscal considerations should not be permitted to decide which
private law may most equitably be applied.
The necessary symmetry is once more lacking when Currie
allows the Arizona court to apply domestic law if the deceased
tortfeasor had property in Arizona, but disallows the application
of California law, if the only connection of the case with Cali-
fornia is that the tortfeasor had property there. If, as Currie
maintains, Arizona does not want to burden the heirs and credi-
tors of the tortfeasor with the consequences of the accident and
has therefore retained the abatement rule, then one should allow
the deciding factor for the application of Arizona law to be
either (a) the person of the tortfeasor (whose actions have not
inculpated the heirs and creditors) and therefore the domicile of
the tortfeasor in Arizona would alone suffice, or (b) the property of
the tortfeasor (which will accrue to the heirs and creditors
without reference to the fault of the tortfeasor) and therefore the
presence of property of the tortfeasor in Arizona would alone
suffice. If one were to follow Currie's basic approach ("Why, . . .
Massachusetts married women"), 2 8 it would make more sense
to select the domicile of the tortfeasor.
Finally, the necessary symmetry is lost when Currie connects
application of Arizona law with the tortfeasor, but application of
27. Supra p. 148 at note 5 ; cf. supra p. 27-28 at notes 35, 36.
(103) THE CRISIS OP CONFLICT OF LAWS 193
29
California law with the injured party. Since the policies of Arizona
and California with respect to the abatement rule are directly,
opposed to one another, the factors used to decide the case should
be the same. The domicile, either of the tortfeasor or of the
injured party, should be used in deciding both cases. If we take
the domicile of the tortfeasor, the result for California would be :
abatement for the tortfeasor from Arizona; no abatement for
the California tortfeasor. If we were to take the domicile of the
injured party, the result for Arizona would be : abatement against
the injured party from Arizona; no abatement against the Cali-
fornia victim.
Furthermore, use of a special connecting f actor for the abatement
rule should be avoided in the first place. Abatement, like limitation
of action, represents a weakness in the complaint and should
share in the fate of the complaint. To be sure, the basis for using
the taw of the place of the accident—namely, that the tortfeasor,
the injured party, and all those who came to the aid of the
victim at the time of the accident (as distinguished from those
who rendered assistance after the accident) can best be guided
by the law of the place of the accident30—does not hold true
when applied to the abatement issue (as it does when applied to
limitation of action). Currie is right when he says that an abate-
ment rule is not intended to give added courage to Kamikaze
drivers.31 However, this is no reason to split up factors where it
is not necessary. Such an approach would lead to the application
of different laws to the same case, with the consequent danger of
gaps and overlaps, thus neglecting an interest of order.32
Of course, it may be questioned whether the use of the law of
the place of the accident to decide all questions arising out of the
tort is in fact the desirable connecting factor where tortfeasor and
victim are citizens of the same state (it is for conflicts law of
29. There is even a fourth example of lack of symmetry: Currie allows the
"domicile" of the tortfeasor to decide for Arizona and the "domicile (or resi-
dence) " of the injured party to decide for California, See supra p. 148 at notes 4,6,
30. Supra p. 187.
31. Supra p. 148.
32. Supra p. 188.
194 GERHARD KEGEL (I04)
individual states to decide whether the outcome should depend
on nationality, domicile or habitual residence) and came into
chance contact with one another while temporarily staying
abroad. One would have to agree here with the results of Grant33
and Babcock3* both probably influenced by the fact that the
parties were Californians or New Yorkers. On the Continent,
the Netherlands35 and Germany 36 have adopted a similar
approach to tort cases involving their nationals abroad, whereas
France 37 sticks to the place-of-injury rule. It is clear that difficul-
ties are inherent here if more than two parties were involved in
an accident abroad and not all belonged to the same state. It may
then be asked if one should apply different laws to decide the
same case.38
4. Limits of Governmental Interests

Currie has taken pains not to carry to extremes the application of
the lex fori, an inherent danger of a doctrine of governmental
interests. He has built safeguards into his system, utilizing both
federal constitutional law as well as the law of the individual
states.
In state law we find as first checkpoint that the governmental
interest must be "legitimate" or "reasonable". But we are never
given a clear indication of what this restriction is and how it shall
be interpreted.1
A second checkpoint in state law is contained in the concept of
"enlightenedself-interest".2 The state is requested, in the application
of its law, to restrain itself—e.g., on side issues—so as to avoid
33. Grant v. McAuliffe, 41 Cal. 2d 85g, 264 P. ad 944, 4a A.L.R. 2d 1162

('953) ; cf- supra P- *9* note 24.
34. Babcock v. Jackson, 12 N.Y. 2d 473, 191 N.E. 2d 279, 240 N.Y.S. 2d 743
(1963); cf. supra p. 10-11, 28-29, infra p. 201.
35. Hof 's-Gravenhage, 1955 Nederlandse Jurisprudentie 1098 No. 615,
1959 Clunet 506; cf. also Arr.-Rechtb. Breda 1963 ib. 310 No. 109 as to
Belgians in the Netherlands.
36. E.g., 34 Entscheidungen des Bundesgerichtshofes in Zivilsachen 222
(1961).
37. E.g., Cour de Cassation, Chambre Civile, 1963 Dalloz Jurisprudence
241 (1963) with note by HoIIeaux.
38. Cf. Beitzke, Grundgesetz und Internationalprivatrecht, 21-23 ( ! 960-
1. Supra p. 113, 176.
2. Supra p . 120-121.
(l05) T H E CRISIS OF C O N F L I C T OF LAWS 195
conflicts with other states. To do otherwise could result in the

unhappy cycle of retaliation and reciprocity. 3 The enlightened
self-interest is a step in the direction of international (or interstate)
uniformity of result which, however, has been categorically
rejected. 4 The governmental interest appears in the enlightened
self-interest to sound a minor rather than major chord. For all
this, the differences between Currie's system and a dedicated
search for justice in the field of conflict of laws remains profound.
A "legitimate''' or "reasonable" interest is also required by
constitutional law.5
Moreover, where the Full Faith and Credit Clause and the Due
Process Clause are concerned, the constitutional boundary runs
parallel to the boundary of governmental interests. That is to say,
a state may apply its own law when it has an interest in doing so
and has to apply foreign law only where a domestic interest is
lacking and it can be shown that the foreign state possesses an
interest. 6 In the absence of such an interest by the foreign state,
the Due Process Clause prohibits the application of foreign law
{"officious intermeddling").1
The Equal Protection Clause which, together with the Due
Process Clause, is appHcable to aliens, 8 and the Privileges and
Immunities Clause require the application of domestic law despite
the lack of a domestic interest. Foreigners may not be discrimi-
nated against, only "reasonable" classifications are permitted. 9
The Privileges and Immunities Clause as well as the Equal
Protection Clause thus serve an "enlightened self-interest". 10 On
the other hand, the Privileges and Immunities Clause prohibits
the application of domestic law to nonresidents where such
application would contradict the "direct" or "specific" interest of
3. Supra p . 172 at note 14, p. 173-174 at note 4.

4. Supra p . 122 at note 77, p. 161 at note 75, p . 179 at note 2 8 ; cf. supra
p . g8 at note 6.
5. Supra p. 112-113 at note 7.
6. Supra p. 167 at notes 11-14, p. 168 at notes 2-4, p . 175 at note 16.
7. Supra p . i 6 8 a t notes 5-8; cf. p. 174 a t notes 9-11.
9. Supra p. 169 at note 8, p. 171 at note 9.
10. Supra p . 169 at note 9, p. 171 at note 9.
10,6 GERHARD KEGEL (1(>6)
a sister state.11 This would constitute another case of "officious
intermeddling."l2
It becomes somewhat complicated when the constitutional
clauses seem to suggest contrasting solutions, e.g., where the Full
Faith and Credit Clause and the Due Process Clause indicate
that foreign law be applied, while the Equal Protection Clause
and the Privileges and Immunities Clause point to domestic
law. The need for distinctions may thus become imperative.13
Any "weighing" of the conflicting interests of different states is
out of the question.1''
Thus, constitutional law has a two-fold meaning for Currie : it
confirms his system of governmental interests, and—what is of
interest to us here—it checks the exaggerated egotism of indivi-
dual states.15 To be sure, only the Equal Protection Clause and
the Due Process Clause are applicable in relation to foreigners.
Constitutional law is thus principally concerned with interstate
conflicts.
To those who, like Currie, assume that the state has a "govern-
mental" interest in the application of its private law and that
decisions in the area of conflicts law have a highly political
function,16 it is obvious that reference should be made to consti-
tutional law. Those who believe that conflicts law serves to aid
in the search for justice between individuals deal with consti-
tutional law only in exceptional cases: basically, problems are
solved where they appear, namely, in the conflicts law of the indi-
vidual states, without reference to the very general and am-
biguous rules of constitutional law.
Currie himself admits that "there is little authoritative gui-
dance" 17 and accuses the traditional system of conflict of laws of
sweeping discrimination problems under the rug.18 On the other
11. Supra p. 172 at note 1 a

12. Supra p. 17a at note 13.
13. Suprap. 173-175-
15. Supra p. 176, especially regarding the possibly two-fold meaning of
"governmental interest".
(l07) THE CRISIS OF CONFLICT OF LAWS 197
hand, Ehrenzweig, discussing only the Full Faith and Credit
Clause and the Due Process Clause under the heading "Consti-
tutional Impact Upon State Law",19 comes to this conclusion:
"We have seen that the Supreme Court, in reliance on the Due Process
Clause, has at best been able to establish a set of minimum rules of choice
of law designed to exclude arbitrary application of the lex fori. We may hope
that the Court will resign itself to the same minimum aim in its current re-
sort to "full faith and credit"." za
In Germany the seductive thesis has been advanced that consti-
tutional law draws much of its life from other areas of law,
notably from administrative law.21 It is therefore noteworthy
that German courts have not relied upon the constitutional rule
of equality of the sexes for conflicts law, but have stuck to the
traditional conflicts rules which refer to the domestic law of the
husband,22 in order to deal with the rights of spouses, although
in substantive law the equality principle of the Constitution has
led the courts, striving for equality to the bitter end, to strange
results,23 or at least discussions.24 The courts have refrained
from constitutional influences on conflicts law, although de lege
ferenda it is only right that equality of the sexes is followed when
choosing the applicable law for family relations. This is even a
major point in the proposed reform of German conflicts law.25
Constitutional law is, however, rather extraneous to the issue at
hand.
ig. Ehrenzweig, A Treatise on the Conflict of Laws, 28-33 {1962).
20. lb., p. 33.
21. Leisner, Die Gesetzmässigkeit der Verfassung, 19 Juristenzeitung 201-206
(1964) und Von der Verfassungsmässigkeit der Gesetze zur Gesetzmässigkeit der
Verfassung (1964).
22. See the cases and materials cited by Kegel in 5 Soergel-Siebert, Bürger-
liches Gesetzbuch, 9th ed., 717 note 2 (1961) and by Beitzke, Grundgesetz und
Internationalprivatrecht, 23 note 58 (1961).
23. Schleswig-Holsteinisches Oberlandesgericht i960 Hansa 1357 (1959)
where the court declared unconstitutional (as violative of equal rights) a
regulation prohibiting a mother with a child less than ten years old from being
a member of the skeleton crew on board an inland vessel ! Cf. Wassermeyer,
Der Kollisionsprozess in der Binnenschiffahrt, 3rd ed., 175 (1962).
24. 20 Entscheidungen des Bundesgerichtshofes in Zivilsachen ig5 (1956)
and 28 ib. 375, 382-384 (1958): Section 1300 of the Civil Code, which gives
a claim for damages to the seduced and abandoned fiancée, was held con-
stitutional and not violative of equal rights, although it affords no relief for
the seduced and abandoned fiancé!
25. Vorschlage und Gutachten zur Reform des deutschen internationalen Eherechts,
edited by Lauterbach, 19, 27 (1962).
10,8 GERHARD KEGEL (lo8)
Similar to the minor role which natural law plays in the field
of private law, constitutional law should remain in the background
in discussions of conflicts law. In extreme cases it could be invoked.
But it should be recognized from the outset that wrong court
decisions should not be declared unconstitutional just because
they are wrong. Nor, conversely, should every correct conflicts
decision be justified in its constitutional implication over and
above its validity under the rules of conflicts law. To do otherwise
would lead to a consummate waste of time and energy.
5. Formal Appearance of Conflicts Law

Currie discovers the interest of a state in the realization of its
policy by construction and interpretation of its rules of substantive
law. 1 Such an approach is consistent if one proceeds from the
standpoint of governmental interests. The spatial validity of the
legal rules with which a state is pursuing its own goals is deter-
mined in doubtful cases by the goals themselves. This is usually
done in international public law, especially in international
expropriation, currency, exchange and anti-trust law. 2
However, this is not suitable for rules of private law. 3 The state
uses private law rules not in order to serve its own goals, but
rather to search for justice in the relations of individuals. It
seeks to find a substantively just solution to conflicting private
interests. This goal cannot produce a basis for the spatial appli-
cation of private law rules. A new question is at issue here. Differ-
ent interests, namely the interests of the parties, of commerce
and of legal order, present themselves. The decisions, here, must
be made without regard for the decisions of substantive justice
to be found in the different substantive laws. 4
However, this would not exclude the possibility that such
decisions, like those in public international law, might take into
consideration the individual substantive rules of individual states
1. Supra p. 114 at notes 8, g.

2. E.g., Ernst, Die Bedeutung des Gesetzeszweckes im internationalen Währungs-
und Devisenrecht, 87-88 (1963).
3. Exceptions are conceded for private law rules which are closely related
to public law. Cf. Ernst ib. 87-88.
4. Supra p . 184-185.
(iOÇj) T H E CRISIS OF C O N F L I C T OF LAWS 199
(even if conflicts justice, rather than construction and interpre-

tation of substantive rules, were thereby emphasized). The basic
structure of private international law is, however, different. The
conflicts rules embrace large groups of the private law rules of all
states, such as those which apply to the form of legal transactions,
agency, statutes of limitations, contracts, torts, unjust enrich-
ment, movables and immovables, trusts, marriage, adoption,
inheritance and wills. The purpose of an individual substantive
rule need therefore only be discussed where a classification
problem appears, e.g., a court is called upon to decide a case
involving an estate without heirs. 3
Another area Ín which the purpose of rules of substantive law
assumes importance is one which is related to the problem of
classification, namely the area of "adjustment", located partly in
conflicts and partly in substantive law. Here, the conflicts rules
require the application of conflicting rules of substantive law in
the same case, often resulting in gaps and overlaps. Where that is
the case, it must be decided whether one is ready to accept the
result or to seek a more satisfactory solution. 6 We recall the case
of the illegitimate child in Hamburg where the German un-
married mother tried to prevent the Greek father from visiting
his offspring. 7
A third and final area in which the purpose of substantive rules
is significant lies completely within the sphere of substantive law,
namely, the so-called "foreign fact situation". Here, the courthas
to take into consideration possible modifications of domestic
substantive law rules because of foreign elements of the case at
hand. 8 For example, a question could arise whether a sympathy
strike at home might be permissible where it ¡s. intended to aid a
main strike abroad. 9
It thus becomes obvious that Currie's attempt to deal with
5. Kegel, op. cit., 105-106.

6. Ib., m , 266, 276.
7. Supra p. 187-188 at note 5.
8. Kegel, op. cit., 31-32; cf. M a n n , The Primary Question of Construction and
the Conflict of Laws, 79 L . Q . Rev. 525-533 (1963).
9. Arbeitsgericht Wuppertal [i960] Betriebsberater 443 with critical com-
ment by Herschel.
200 GERHARD KEGEL (lio)
conflicts law by construction and interpretation of the rules of
substantive law is thoroughly inadequate, since the main problem
lies in the search for justice in the field of conflicts law. Con-
struction and interpretation may have a value in international
public law (as distinguished from the law of nations), where it is
often necessary to determine the spatial applicability of domestic
public law, e.g., expropriation, currency, exchange or anti-trust
law. But where the application of'foreign public law is concerned,
especially the recognition of a foreign state's intrusion into the
area of private rights, conflict rules must be formed even in
international public law.10
By attempting to determine the spatial applicability of
substantive private law rules through construction and inter-
pretation, Currie has succeeded in erecting a system of unilateral
conflicts rules11 and thus becomes a neighbor of those authors who
try to build conflicts law from rules which only regulate the
application of the rules of substantive law of a given state.12
PUenko, an exiled Russian emigré living in Paris, came to such
conclusions about ten years ago and expressed them in the follow-
ing elegant formula:13
i. We first determine when our law is applicable;
2. if our law is not applicable, then we apply the law of the state which has
declared that its law is applicable;
3. should several states declare their law as applicable, we apply the law
ofthat state which, in the application of its own law, comes closest to the
principles according to which we apply our own law;
4. in the event that no state declares its law as applicable, we apply our own
law in an auxiliary capacity.
Quadri has expressed similar i d e a s . 1 4 H o w e v e r , in case of positive

conflicts b e t w e e n foreign states ( N u m b e r 3 , supra), h e is some-
what more flexible, suggesting that the proper, the most
"efficient" law should be applied, i.e., the law having the more
real connection with the transaction and on which the parties
10. Kegel, op. cit., 387-416.

11. Supra p. 163.
12. Cf. Wiethölter, Einseitige Kollisionsnormen als Grundlage des IPR (1956).
13. Cf. Wiethölter ib. 33-34.
14. Quadri, Lezioni di diritto internazionale privato, 3rd ed., 177-229 (1961). Cf.
De Nova, 28 Law & Cont. Prob. 814, 817-821 (1963).
(ill) T H E CRISIS OF C O N F L I C T OF LAWS 201
15
probably relied. Quadri would also solve the negative conflict
between al! states (Number 4, supra p. 110) 3 in his own way.16
Currie decides the cases in which the forum state is interested
in the application of its own law (Number 1, supra p. n o ) and
the cases in which a single foreign state is interested in the appli-
cation of its law (Number 2, supra p. 110) just as Pilenko and
Quadri would, namely by applying the lex fori in the former
instance and the law of the interested foreign state in the latter
instance.17 Where the forum state and the foreign state are in
conflict, Currie does no more than to attempt to solve the
problem by discovering an "enlightened self-interest"18 of one or
the other of the states involved.19
Currie regards the case of positive conflicts between foreign
states (Number 3, supra p. n o ) as improbable and fails here to
develop a clear formula.20 He attempts to sidestep the issue by
referring us to thçforum non conveniens or, again, to the "enlighten-
ed self-interst". If these suggestions will not suffice, Currie
stands hesitatingly between the "more enlightened and humane
decision", that is, the decision based on the better legislative policy
(and here Currie means the legislative policy of substantive law,
whereas Pilenko and Quadri have in mind the better legislative
policy of conflicts law) on the one hand, and the application of
the lexforiy so long as it coincides with the law of the foreign state,
on the other hand.
In case of a negative conflict on all sides (Number 4, supra p.
n o ) , Currie would apply the lex fori.21 This solution would agree
with Pilenko though not with Quadri.
All these difficulties result from a basic failure to realize that
conflicts justice is the aim of conflicts law.22 Pilenko and Quadri
are disinterested in interests.23 Currie is concerned about intcr-
15. Q u a d r i , op. cit., 220-224. Cf. De Nova, op. cit., 820.

16. Q u a d r i , op. cit., 218. Cf. De Nova, op. cit., 820-821.
17. Supra p . 144 at notes 13, 14, p . 37 (§§ 2, 4).
18. Supra p. 120-121 ; cf. supra p. 105 at note 10.
19. Supra p. 127 ( § 3 ) .
20. Suprap. 124-126.
22. Cf. Wiethölter, op. cit. (supra p. 110 note 12), 120-122 contra Pilenko.
2
3* Çf' Q u a d r i , op. cit. [supra p. 200 note 14), 224-225.
202 GERHARD KEGEL (lia)
ests, but had adopted governmental instead of private interests as

his criterion.
In addition, the approach of Pilenko and Quadri is less radical
than Currie's in that they have retained the basic traditional
system of conflicts law for the application of domestic law. To be
sure, by restricting themselves to the application of domestic
law, they have succeeded in distorting universal conflicts rules
into unilaterais. But they retain the large content of conflicts
rules, such as capacity to contract, agency, statutes of limitation,
contracts, etc. Currie, on the other hand, attempts to achieve
spatial applicability for every individual rule of substantive law by
means of its construction or interpretation.
Pilenko, Quadri and Currie would all agree that they have
eliminated the main general problems ofprivate international law! 2 4
According to Currie, classification poses only a "false problem"
and involves "inherently a question-begging process". 25 It is clear
that the problem of classification is essentially one of construction
and interpretation. However, here the construction and inter-
pretation concern not substantive rules, as Currie would have
us believe, but conflicts rules which serve the justice of conflicts
law. 26
To be sure, these conflicts rules will be interpreted in order to
determine whether or not they affect certain substantive rules.
This is because substantive rules (together with the facts of the
case) serve to make up the factual elements of a conflicts rule.
Conflicts rules tell us that in certain cases certain substantive
rules are to be applied. T h a t is why in cases where it is doubtful
whether a substantive rule belongs to this or that conflicts rule,
for example, whether the statute of limitations is to be decided
according to the law which governs the claim or according to the
lex fori, the purpose of the substantive rule becomes important.
T o be sure, the examination should not be limited to the purpose
24. Cf. for Pilenko: Wiethölter.o/). cit. (supra p. 200 note 12), 30-33; for Q u a d r i :
Q u a d r i , op. cit. (supra p. 200 note 14), 179, 183-184, 213, 218,258-259 (renvoi),
260 (classification), 309-314 (public policy) a n d de Nova, op. cit. (supra
p. 200 note 14), 818-819; for Currie supra p . 88-89.
25. Supra p. 178.
26. Kegel, op. cit., 102.
(r 13) T H E C R I S I S OF C O N F L I C T O F L A W S 203
of the rule but should also encompass its factual elements, its legal
consequences and its relationship to other substantive rules. 27
When it comes to determining the purpose of a substantive
rule we are concerned with a procedure which is quite akin to
that of construction and interpretation. Thus, construction and
interpretation of conflicts rules and "construction and interpre-
tation" of substantive rules stand in mutual relationship, affecting
one another in an almost dialectical process. But by no means do
they present a "question-begging" situation. The rule whose
construction and interpretation decides is the conflicts rule. The
substantive rule only has to be known and, where necessary,
"construed and interpreted", so that one can determine if it falls
under the rule which really is the subject of construction and
interpretation, namely, the conflicts rule. 28
Actually, Currie has not eliminated the classification pro-
blems. Rather, he has increased them many times by seeking to
ascertain the area of applicability of each substantive rule
through its construction and interpretation. Currie has expended
boundless energy in these endeavors and has thrown precious
new light on many rules of substantive law. However, by substi-
tuting governmental interests for the search for justice in private
international law, Currie has been able to solve only a part of the
problems with his research in to substantive rules. Moreover, he
has done Ín the process a lot of unnecessary work, e.g., in handling
the abatement rule of Arizona in the Grant case 29 or the automo-
bile guest statute of Ontario in the Babcock case. 30 If one ap-
proaches the problem from another point of view, namely
searching for justice in conflicts law, it is possible to save oneself
this mountain of labor, since conflicts rules encompass large
groups of substantive rules of the most varied of states. 31 One
27. Ib., 104-106.

28. Likewise, statutes must often be construed to determine their constitu-
tionality; e.g., Bundesverfassungsgericht 1964 Neue Juristische Wochenschrift
1219.
( ' 9 5 3 ) ; <ƒ• supra P- 98-99. 118, 123, 147-162, 187, 191-194.
30. Babcock v. Jackson, 12 N.Y. 2d 473, 191 N . E . 2d 279, 240 N.Y.S. 2d 743
( ' 9 ^ 3 ) ; cf. supra p. i o o - i o i , 118-119, 187, 194.
31. Supra p. 19g.
204 GERHARD KEGEL (i I4)
would then be in a position to improve the conflicts rules or even
increase their number; for example, Ín torts, one could apply the
law of the common home state of foreigners.32 But one has no
reason to allot to each substantive rule a conflicts rule as its
constant companion.
Currie likewise sees the problem of renvoi as nonexistent, at
least in part, namely, where the foreign state refers back to the
forum state. On the other hand, he regards the transmission
between two foreign states as potentially significant.33 In reality
renvoi serves an interest of order,34 namely to decide the case in
exactly the same manner as it would be decided by the courts of
the state whose law governs according to the conflicts rules of
the forum.35 Indirectly this also happens according to Currie in
cases involving a remission to the law of the forum state, as he
himself recognizes.36 For the foreign state has no interest in the
application of its law when it makes such a remission. The lex fori
will then be applied, since both domestic and foreign state are
uninterested in the application of their law.37
Finally, Currie regards public policy as another sham problem.38
It simply cannot arise in his system, since every state applies its
own law when it is in its governmental interest to do so. If,
however, we were to consider not governmental, but private
interests (justice between individuals), then, in exceptional cases,
justice in substantive law could be given preference over that of
conflicts law and public policy could prevent the application of
manifestly unjust foreign substantive law.39
The preliminary question is barely touched upon by Currie; 40 it
is simply banished from the field. It really belongs to the field,
however, and an important interest of order is here at work,
32. Supra p. 193-194.

33. Supra p. 178.
35. Kegel, op. cit., 4 1 , 125-126, 129.
38. Supra p. 178-179.
39. Supra p . 188-189.
namely the interest to find decisions that are in substantive
harmony.*1
6. Valid Law
Currie considers the traditional system of conflict of laws as
supranational law and finds a "clearly defined source" lacking.1
However, the sources are well defined: treaties, where they exist;
statutes, where they have been passed; and, to a large extent,
customary law. The fact that some rules of conflicts law are valid in
all states is no more proof of their supranationality than the
frequent coincidence of rules of substantive law.
One could shift the question of sources back to Currie. His
system can hardly be called valid law, even if one takes into
consideration the fact that for years in the United States a spirited
controvery has been in progress. Every author has the right, nay,
the duty, to expound and defend what he has long been investig-
ating and what he holds to be true. But Currie has taken (and
we believe inopportunely) so sharp a turn away from established
tradition that it would be surprising if he ever succeeded in
pushing through his program. Nevertheless, this possibility can-
not be ruled out. Currie can find some grounds for his system in
Anglo-American law, which are lacking in the laws of the
European continent.
7. Currie's Roots
We have already had occasion to refer to the historical develop-
ment and to Currie's immediate predecessors.1 In England and
the United States public and private law are not so sharply
distinguished, either substantively or adjectively, as they are
usually on the European continent. Here, the concept of sover-
eignty (comitas, vested rights, local law) has exercized an influence
on conflicts law, a branch of the law that has no relation to the
state, but rather to the rights of individuals. Moreover, in the
United States, a shift of frontiers has taken place in that the
41. Kegel, op cit., 114-118.

1. Supra p. 103-in.
206 GERHARD KEGEL (i l6)
vested rights theory has become tradition-bound whereas the

local law theory favors a "pragmatic approach". 2
Currie fights out of the corner of the pragmatista. However, he
does not handle sovereignty as did his predecessors, that is,
formally, as a method for explaining why foreign law is applied.
Rather, he employs a basically substantive approach, emphasing
the interests of a state in the application of its own law. This leads,
inter alia, to a pronounced preference for the lex fori, which was
quite alien to previous theories. 3 This regrettable deviation in
conflicts law was occasioned, apparently, by a law review
article of the American constitutional law specialist Freund. 4
8. Conclusion
T h e interests which are at stake in conflicts law are more difficult
to comprehend than those in substantive law. In addition, the
foreign law which many times must be applied is harder to find
and more challenging to prove. The interaction of domestic and
foreign law (and this means at the least the interaction of
domestic law of procedure and foreign substantive law) can
become quite involved. Because of this, conflicts law is compli-
cated and sensitive. Bold theories are easy to conceive and
difficult to reject. Moreover, conflicts law, like most other areas
of law, is today undergoing a process of change.
Perhaps this change is taking place too slowly in the United
States. Witness the tendency to retain the place of contracting
as the factor for contract conflicts and the place of injury as the
only factor for tort conflicts; or the retention of different factors
for movables and immovables in inheritance (and other) cases.
All this could have occasioned a vigorous reaction which proceeds
too far in the opposite direction.
It is possible, but not probable, that a long legal tradition such
as we find in the traditional system of conflict of laws lacks a solid
basis in legislative policy and moves along quite arbitrarily. If this
basis in legislative policy shall be determined by ascertaining the
2. Supra p. 106-109.
3. Supra p . 107 (vested rights), 107 at note 21 (Cook).
4. Supra p. i n .
(117) T H E CRISIS OF C O N F L I C T OF LAWS 20"}
policy of the legal rules, that is, by ascertaining interests and

their respective values, then an analysis should be attempted
which in its main points is in harmony with the traditional rules.
From there suggestions for improvement could be made. In our
opinion the rules of conflicts law can be explained by an evalu-
ation of private interests, namely the interests of parties, com-
merce and order. I do not believe that the same can be accom-
plished by using governmental interests. Currie, to me, has
proved this conclusively with his revolutionary results. I do not
even think that governmental interests are at work in conflicts
law. Governmental interests are the own interests of the state. But
in conflicts law (as well as in substantive private law) the interests
at stake are private and the aim is justice between individuals.
However, Currie, the only one to venture down such a path,
displays the courage of a Hon. The formulation of a new system
on such a scale is indeed a massive undertaking. Currie has not
hesitated to roll up his sleeves, undaunted by obstacles real or
imagined, and attack with determination and flawless honesty.
To accompany him along this path is a fascinating experience,
immeasurably rewarding intellectually. Moreover, Currie's
style as a writer is brilliant, often humorous and always inter-
esting.
Therefore, I would like to close with a brief excerpt from the
Broadway musical "Annie Get Your Gun". Currie's system has
left me unconvinced:
"But I must confess that I like it;
being miserable can be fun!"
PART II
LEX FORI AS BASIC RULE: ALBERT A. EHREN-

ZWEIG
CHAPTER I
PROMOTION OF THE LEX FORI

nPHE traditional system of conflict of laws employs the same
contact factors in order to determine when to apply domestic and
foreign law. For example, in torts, regardless of whether the
injury occurred within or without the state, the law of the place
of injury governs. 1
In case foreign law has to be applied, there are supplementary
rules which can lead to the application of domestic law. This
takes place by virtue oí public policy and remission. A procedural
Classification can, in the first place, lead to the application of
domestic law, e.g., where a limitation of action or set-off is
concerned.
For the traditional system of conflict of laws, public policy,
remission and other cases 2 are exceptions to the application of
foreign law: normally foreign law is applicable, and the appli-
cation of domestic law is an exception. Ehrenzweig reverses this
order: normally, the lex fori is applicable, and the application of
foreign law is the exception.*
"All these exceptions [of the traditional system of conflict of laws] are desig-
ned to reach results indirectly which could be reached directly by recogn-
izing the lex fori as the rule primarily to be applied." 4
i. Supra p. 187.
2. See infra p. 229-234.
3. Ehrenzweig, The Lex Fori—Basic Rule in theConflict of'Laws, 58 Mich. L. Rev.
637-688 (hereafter "Lex Fori"), 638-639, 644, 671 (i960). Ehrenzweig, A
Treatise on the Conflict of Laws (hereafter "Treatise"), 308 (1962).
4. Lex Fori 671.
(119) THE CRISIS OF CONFLICT OP LAWS 209
1
To be sure, his "Treatise " regards the exceptional application of
foreign law as analytical and not as quantitative:
"[S]uch application must be analytically understood as an exception from
the basic rule calling for the application of the lex fori. Analytically, not
quantitatively, to be sure." 1
But we are left without proof of this statement.

Ehrenzweig opposes the idea that domestic and, to an even
greater degree, foreign law, "governs"6 or is "applicable".7 He
especially objects to the fact that Beale has translated the
Italian word "inspicere" from Bartolus and other Italian writers
with the English word "govern".8
Ehrenzweig's aversion to the word "govern" appears to be
based on two factors. First, he condemns the equal treatment
afforded to forum and foreign law; foreign law does not govern,
but is only tolerated.9 Secondly, reference is never made to an
entire foreign legal system; rather, only individual rules or
groups of rules are invoked, and these only "as a part of the law of
the forum", that is, on the basis of rules which are to be thought as
incorporated into the individual substantive rules of the lex fori.™
"[S]ince we are dealing only with one legal order [seil, of the forum], all
"conflicts" are necessarily the mere result of the formulation, usually acci-
denta!, of the seemingly conflicting rules [seil, rules of substantive law]". 1 1
"When we speak of a rule of choice of law directing us to that foreign rule,
we merely state a rationale underlying the interpretation of the forum rule
which is sufficiently common in the interpretation of similar rules to warrant
a shorthand statement for what each forum rule could, but usually does not,
say about its territorial scope." 12
Analytically, t h e entire s t r u c t u r e of conflicts law could b e dis-

m a n t l e d , either t h r o u g h regulation b y a superlaw or t h r o u g h seif-
et. Treatise 314. Cf. already Ehrenzweig, Choice of Law: Current Doctrine and
"True Rules", 49 Cal. L. Rev. 240-253, 245 (1961).
6. E.g., Lex Fori 639, 648, 650, 678, 680, 686, 688; Treatise 308, 310-315,
326, 334» 335. 338» 340-343. 347. 45Ö-
7. E.g., Treatise 308, 337.
8. Lex Fori 649 (note 70); Ehrenzweig, Beale's Translation of Bartolus, 12 Am.
J. Comp. L. 384-385 (!9 6 3)-
9. Treatise 311, 330-331, 334-335.
10. lb. 310.
11. lb.
12. lb. 311. Cf. ib. 330: "Characterization . . . is a shorthand expression for
the interpretation of the forum's domestic rule and, if forum law has a for-
mulated conflicts rule, also [?!] of the latter."
210 GERHARD KEGEL (l2o)
limitation in the individual substantive rules. However, as a
practical matter, both solutions are impossible. Therefore, one
has to work with rules of choice of law in the traditional sense.13
But
"we should remain conscious of this humble origin [seil, the practical?] of
our subject and fight the age-old temptation to glorify it as a system of self-
sustained principles".1*
The fact that basically the lex fori (and foreign law only by
way of exception) is to be applied does not betray a "provincial
attitude".15 Rather, by means of an improvement and refinement
of the rules for certain typical cases, more foreign law will be
applied than previously.16
"We would merely restore a highly cultured, world-minded law but recently
threatened by a nearly world-wide sweep of a dogmatic conceptualism." 17
This model law we find in
"that period of American law in which the imaginative searching of a young
society for new answers to new problems was not yet obscured and emascul-
ated by the all-too-easy acquiescence in common-place generalizations, a
period in which courts still felt free to treat their own law as primarily en-
titled to application unless displaced by the parties' reliance on another law
or similar compelling considerations."18
Despite "this return to earlier periods", the "superstructure" of
the last loo years should not be completely abandoned.19 The
"adjustment" of foreign law to domestic law is deserving of merit,20
and the precise policy analyses in Germany (Wengler, Beitzke,
Zweigert, Kegel) and in the United States (Currie) appear to be
commendable.21
On this basis the relationship to the traditional system of
conflict of laws is presented in Ehrenzweig's article on the
"Lex Fori" in the following manner: after the preferred rules in
13. lb. 310.

14. lb.
15. Lex Fori 642, 670.
16. lb. 642; Ehrenzweifc, Choice of Law: Current Doctrine and "True Rules",
49 Cal. L. Rev. 240-253, 245 (1961). Here too, Ehrenzweig fails to present
evidence, cf. supra p. 209.
17. Lex Fori 642.
18. lb.
19. lb.
20. lb.
21. Ib. G42-643.
(l2l) T H E CRISIS OF C O N F L I C T OF LAWS 211
international treaties and national constitutions come the traditional

conflict rules, such as lex loci delicti, lex situs, and rules serving the
unity of status and estates. They will be retained,
" b u t only where, a n d insofar as, they have sufficiently crystallized in certain
specific situations",112 "only under well-established exceptions [of the basic lex
fori] grounded on reason and policy" , 23
The only general exception to the basic lex fori is the "party
autonomy", which serves even as a "second basic rule" alongside
the lex fori.2*
Apart from the second bacis rule of party autonomy, the
"relegation of traditional conflicts rules to the status of exceptions keyed
to ever narrower fact situations will not substantially alter their scope a n d
contents". 2 5
"Conflicts justice"26 should lead, just as always, to the application

of foreign law as "lex situs, lex loci and personal law". 27 But the
exceptions to the application of foreign law in the traditional
system of conflict of laws, such as public policy, remission and
procedural classification, will disappear.28
In his "Treatise", Ehrenzweig distinguishes in relation to the
traditional system of conflict of laws, after the preferred rules
of international treaty and national constitutions,29 three stages:
traditional rules, true rules30 and interpretation of domestic
rules :
" I shall try, in the first place, to identify those few but important rules of'
choice which have been formulated by statute or precedent with sufficient
clarity a n d consistency to be " a p p l i e d " like other rules of statute or common
law. W h e r e no such rule can be stated, answers to specific questions will be
sought in what we may, with Karl Llewellyn, call " t r u e rules" derived from
the actual doing of the courts. And where the available material does not
22. lb. 644 (emphasis a d d e d ) , 669 inßne; similar Treatise 314.

23. Lex Fori 677. (Emphasis added.)
24. lb. 644, 645, 669 in fine.
25. Lex Fori 6 4 3 ; Treatise 314. N o evidence is presented here either; cf. supra
p . 119, 120 note 16.
26. Cf. supra p. 182-185.
27. LiJtFon'643; Treatise 314. I n other places Ehrenzweig speaks of immovables,
negotiable instruments and status: Treatise 311,335 ("things" instead of " i m m o v -
ables"), 345, 352-353 ("foreign marriages", "transactions concerning l a n d " ,
" a n d a few other areas"), 362-363 ("status", "foreign l a n d " ) .
28. Lex Fori 6 4 3 ; Treatise 314.
29. These are missing from the summary Treatise 311.
30. Treatise 310, 311.
212 GERHARD KEGEL (I22)
even suffice as a basis for such answers, we shall have to be satisfied with in-
terpreting each domestic rule as to its applicability to those foreign facts
for the sake of which that rule is claimed to be displaced." 31
Rules of Type i (traditional rules) exist essentially only for status,
immovables and negotiable instruments.32 Here "shorthand
statements"33 have proved to be necessary.34
"Similar shorthand statements without reference to such independent rules
may be developed by settled precedent in certain other situations." 35
Apparently, Ehrenzweig has reference here to the Rules of
Type 2 (true rules) and perhaps also to those of Type 3 (inter-
pretation of domestic rules).
His style, to be sure, is not always quite clear. Thus, in other
places "true rules" are attributed to an interpretation of the
substantive law of the forum36 or are derived primarily from
the real motives of court decisions and only Ín the last resort
through the extent of the policy of the substantive law of the
forum.37
As an example of an interpretation of a substantive rule of the
lex fori, Ehrenzweig cites a rule which limits the recovery of a
widow for the death of her husband to % 20,00o.38 Here the
policy of the forum can be either to prevent an unrestricted
recovery for damages, which would mean applying this rule
without regard to the place of the accident; or it could be
motivated by other circumstances, for example, easier calcula-
bility, thus making more desirable the application of the law of
the place of the injury, even at the risk of discriminating between
victims of domestic and foreign accidents or between citizens of
different states.39 A shorthand statement could indicate that the
damages are to be measured according to the lex fori or the lex
31. lb. 308-309.

32. lb. 311, 335; cf. supra p. 211 at note 27.
34. Treatise 311.
35- lb.
36. Treatise 352: " 'true rule' of choice ascertained by the interpretation of
that local rule whose displacement is sought".
37. Treatise 353: " 'true rules' that are sought in the first place by analyzing
these holdings for their true motivations, or, in the last resort, in the absence
of consistent practice, by determining 'the reach of a policy underlying local
law' ".
38. lb. 310, 311-312.
39. Ib. 311-312.
loci delicti. But it would be a dangerous play on words to derive

from such a decision an independent general conflicts rule
establishing the place of injury as "governing" "torts" or to base
the decision on such a general rule.40
A "Rule of Validation" is presented in the Treatise as a "true"
rule and, at the same time, as a third "basic" rule (alongside the
lex fori and party autonomy41) : a legal act (for example, a
contract,*2 trust,43 will,44 marriage,45 legitimacy or legitima-
tion 46 ) is valid if it is valid according to one of several "proper"
substantive laws.
Ehrenzweig answers the objection that preference for the lex
fori will endanger international uniformity of result with the retort :
Previous attempts in this direction (Zitelmann, Fillet, Beale)
failed and left behind "uncertainty" and "multiformity" as "the
very trademarks" of the law of conflict of laws. Legal certainty
and international uniformity of result are attainable only in
limited areas by means of international treaty and national
constitutional law. To be sure, the Supreme Court has apparently
ceased to strive for legal certainty and uniformity of result
with the aid of the Due Process Clause and the Full Faith and
Credit Clause.47
" [ 0 ] u t s i d e these [limited] areas our starting point will remain the law of
the f o r u m . " «
Ehrenzweig verifies the predominance of the lex fori (together

with the autonomy of the parties) by means of a trip through the
pages of legal history.419 We do not intend to accompany him
40. lb. 31a.

4 1 . Cf. supra p . ai 1 a t note 24.
42. Ehrenzweig. The Statute of Frauds in the Conflict of Laws: The Basic Rule
of Validation, 59 Col. L. Rev. 874-881 (1959); Ehrenzweig, Contract and the
Conflict of Laws. 59 Col. L. Rev. 973-1025, 1171-1190 (1959); Treatise 353,
444-445. 458-459. 465-49 0 -
43. Treatise 625, 642-645.
44. lb. 660-661, 666-669.
45. lb. 378-387-
46. lb. 391-395-
47. lb. 315.
48. lb.
49. Lex Fori 646-667 ; Treatise 315-324.
there. At the end of his journey, Ehrenzweig attacks Joseph

Beale and the Restatement50 as his main opponents.51
The decisions which adhere to the traditional system of conflict
of laws are dismissed by Ehrenzweig with an indication that the
cases in which the lex fon coincided with the appropriate foreign
substantive laws were "pseudo authorities" and the rules con-
tained therein "pseudo rules": "true rules" could only be
derived from "true conflicts". In the pseudo cases it is wrong to
determine and apply the "governing" taw on the basis of pseudo
rules. As a matter of course, it would be much better to apply
the lex fori in the first place and alone.52
" I n d e e d this technique [proceeding on pseudo rules], by a conservative es-
timate that is based on the study of many thousands of so-called conflicts cases,
engulfs at least nine tenths of those decisions which in digests, texts a n d court
opinions appear as "authorities" for traditional conflict rules." "
50. Lex Fori 668-669; Treatise 324-325.

51. E.g. Lex Fori 665, 670-671, 674-675, 678; cf. supra p. 119 at note 8.
52. Treatise 308, 310-311.
53. lb. 311. (Emphasis added.)
CHAPTER II
DISSOLUTION OF PSEUDO PROBLEMS
Tji HRENZWEIG regards his doctrine as a "new 'general theory' of

conflict of laws".1 He considers the former general doctrines
of private international law (with the exception of the "adjust-
ment") 2 as deductions "from the false premise of a universal
scheme of legislative jurisdictions"3 and as the result of pseudo
rules such as the one that "torts" are "governed" by the law of
the place in the injury.4 As long as they lead to the application
of domestic law, they are to him attempts by the courts to arrive
at the basic lex fori by means of the traditional system of conflict
of laws.5 As a means to achieve the lex fori, he sees mainly
classißcation, especially procedural, but also contractual (in tort
and real property cases), and also the preliminary question, renvoi,
fraud on the law, failure of proof of foreign law at trial, and public
policy.6
i. Classißcation
Classification is understood by Ehrenzweig as an interpretation of
the lex fori.1 But it is often used only in order to arrive at the
substantive law of the lex fori. Thus, legal rules are classified as
procedural, since the procedure (forms of remedies and modes of
proceeding) is governed by the lex fori.
In its origins, according to Ehrenzweig, this thesis served in
i. lb. 308. (Emphasis added.) A somewhat more restrained a p p r o a c h ib.

314: " I t must be our aim to readjust our general theory of conflicts law to
the actual practice of the courts."
3. Treatise 326.
4. Ib. 326-327.
5. Cf. supra p . 208 at note 4.
6. Lex Fori 671.
1. Ehrenzweig, Characterization in the Conflict of Laws: An Unwelcome Addition
to American Doctrine, in: X X t h Century Comparative a n d Conflicts Law,
Legal Essays in Honor of Hessel E. Yntema 395-408 (1961), 398-399; Treatise
3 2 ß ; 330-
2l6 GERHARD KEGEL (126)
the Middle Ages (Balduini) to strengthen the rule of the lex fori
against the advancing application of foreign law. In the common-
law orbit it operated as a counterweight in favor of the lex fori
only after the victory of the vested rights doctrine.2 The
distinction between substantive and procedural law is generally
considered untenable today. But so long as the basic rule of the
lex fori has not prevailed, the distinction must (like public
policy) be retained. Nothing is to be gained by declaring that
limitations of action, survival statutes, statutes of fraud, standing
to sue or be sued and the extent of damages are all substantive3
(sâLt since then the lex fori would give way to foreign law!). In
the present condition of "unworkable 'rules' " (like those of the
Restatement) one has to resort to "unworkable exceptions"
(such as the rule of the lex fori over "remedies") until these
"rules" are themselves recognized as exceptions from the basic
rule of the lex fori.*
"With the substitution for overgeneralized.pseudo rules, of a catalogue of
specific and policy-based exceptions from the lex fori, the technique of char-
acterization will have lost both its promise and its threat, as well as its prin-
cipal merit as a 'fascinating intellectual exercise*."s
2. Preliminary Question
Similar to the classification question, the problem of the pre-
liminary question will also be solved with the help of the basic
rule of the lex fori1 through interpretation of the rules of the
forum.2 Here, just as in cases involving the autonomy of the
parties, it depends on the intention of the lex fori, namely, on the
policy which is being pursued if foreign law is declared applicable
in exceptional cases.3
For example, if an illegitimate child should survive a non-
resident decedent, the question whether he is a "child" within
the meaning of the law of the residence of the decedent (which
2. Lex Fori 676; Treatise 33t.
3. Lex Fori 677; Treatise 331-332.
4. Lex Fori 678; cf. Treatise 332.
5. Treatise 331; quite similar already Ehrenzweig "Characterization" (supra
p. 125 note 1), 408.
1. Lex Fori 684.
2. Treatise 341.
3. Lex Fori 685.
(l27) T H E CRISIS O F C O N F L I C T O F L A W S 217
law, according to the general opinion, decides on the succession

to movables) * should be decided by this law. For one can assume
that the decedent had relied on the application of this law and
therefore did not bother to draw up a will. 5
Where a man from Illinois has been killed in an accident in
Illinois by another man from that state and the widow sues the
tortfeasor in Minnesota for damages, the question may come up
whether the plaintiff was in fact validly married to the victim,
if the couple were first cousins and married in Kentucky, where,
as opposed to Illinois, such marriages are legal. If Minnesota
were to apply the law of the place of injury and one were to
replace the "defunct vested rights rationale" of this rule with its
probable reason, namely, that the injured party had relied on
the law of his domicile for the financial protection of himself
and his relatives, especially by insurance, then the validity of the
marriage must be determined by the law of Illinois (even if the
accident took place outside Illinois). Since Illinois had adopted
the Uniform Marriage Evasion Act, the marriage would be
declared void. 6
As a result, Ehrenzweig, at least in both these cases (the
illegitimate child and the widow), comes to the so-called
"dependent" solution of the preliminary question, that is, the
preliminary question (descent, marriage) is answered in accord-
ance with the conflicts law of the state whose law decides the
main question (succession, tort). On the other hand, the "inde-
pendent" solution of the preliminary question would refer to the
conflicts law oí the forum for an answer to the question what law
applies to the preliminary question.
3. Renvoi
The need for remission can also be removed if one applies the
lex fori from the outset and develops rules of choice of law more
4. However, ib., 683, note 322, Ehrenzweig refers, apparently with approval,
to Yiannopoulos, Wills of Movables in American International Conflicts Law: A
Critique of the Domiciliary "Rule", 46 Ca!. L. Rev. 185 (1958).
5. lb, 685; Treatise 341.
6. Lex Fori 685.
2l8 GERHARD KEGEL (ï28)
1
and more as special exceptions to the lex fori. Thus, in the
conflicts law of contracts the only choice Ís between party
autonomy (i.e., the actual or presumed intention of the parties)
and the lex fori. Since the will of the parties is directed to the
application of a certain substantive law, there is nothing for
remission to look for.2
In some cases, such as perhaps in the conflicts law of things
(movables and immovables) and of negotiable instruments 3 and
certainly in the conflicts law oí domestic relations, where, perhaps,
respect for the law of the parties' nationality or domicile is
decisive, it makes no sense to apply this law against its will.
But because of this one needs no remission. One simply formu-
lates the rule of choice of law differently, so that foreign law
will only be invoked when it wants to be applied. 4 Until the day
comes when, in these and other cases, rules of choice of law can
be so drawn up that from the very outset the substantive law of
the forum is applied, 5
" a simple escape from the renvoi by ignoring it, is the only practicable so-
lution". 6
Transmission should likewise be eliminated by reformulating the

rules of choice of law of the forum. Only here, in place of the
substantive law of the foreign state, the law of a third state is
applied instead of the law of the forum. One would refer, for
example, to the lex situs instead of to the law of the decedent's
domicile, or to the lex actus rather than to the law of the place
of harm. 7
It thus turns out that remission and transmission are dispen-
sable. They are
" a classic example of violently prejudiced literature confronting naively
consistent practice". 8
i. lb. 682; Treatise 334, 337.

2. Lex Fori 679, 684-685; Treatise 338.
3. Treatise 335; cf supra p. 211 at note 27, p. 212 at note 32.
4. Lex Fori 682-683; Treatise 334, 336.
6. Treatise 338, quoting Leflar, The Law of Conflict of Laws, i o (1959).
7. Treatise 338-339.
8. Lex Fori 683 a n d Treatise 340, quoting 1 Rabel, The Conflict of Laws, 2d
*&••> 75"76 (1958). T o be sure, Rabel is a n advocate of renvoi, cf. ib. 76-90.
(l29) THE CRISIS OF CONFLICT OF LAWS 210,
4. Fraud on the Law

Fraud on the law, like classification (supra, i) and preliminary
question (supra, 2), is a question of interpretation of the lex fori.1
"This question can and must be answered without resort to the new pseudo
tool of 'fraud on the law', whether the asserted evasion was one of the law
of the forum or of another jurisdiction." 2
Where domestic law is evaded, the "pseudo tool of fraud on the

law" may obscure the lex fori which really is to be applied.3
5. Proof of Foreign Law

If a connecting factor1 or the foreign law which allegedly
"governs" the case2 is not properly pleaded and proved, it will
be assumed in most jurisdictions in the United States that it
corresponds to the lex fori. In reality we are concerned here with the
direct application of the lex fori and in some cases the courts have
expressly so indicated.3 This direct application of the lex fori
(because of the basic rule and not as an exception to a "govern-
ing" foreign law) ís correct.4 This is illustrated by reference to a
miscarriage of justice in the few but important decisions which
do not apply the presumption or fiction of the coincidence of
foreign law with the lex fori and dismiss the complaint if the foreign
law has not been established.5
Only in exceptional cases does the court have to "ascertain
another law on its own motion". 6
"Outside this area, however, choice of law rules will in general come into
play only if at least one of the parties insists on the applicability, and estab-
lishes the tenor, of a foreign rule." 7
1. Treatise 346.
2. lb.
3. Cf. Lex Fori 671.
1. Treatise 341-34.2.
2. Lex Fori 678; Treatise 341-342.
3. Lex Fori 678; Treatise 342.
4. Le* Fori 678-679; Treatise 341-342.
5. Lex Fori 678, citing Walton v. Arabian American Oil Co., 233 F. 2d 541 (2d
Cir. 1956), cert. den. 352 U.S. 872 {1956); Treatise 342.
6. Treatise 342 referring (in note Q) to 362-364 and 336 {cf. supra p. 218 at
note 3).
7. Treatise 342.
220 GERHARD KEGEL (ISO)
6. Public Policy
Public policy appeared at the same time on the European
continent as well as in England and the United States
" w i t h the climax of those universalist aspirations which undertook to dis-
place the lex fori by a uniform conflicts law a n d thus required measures to
make such a law as harmless as possible to the law of the f o r u m . " 1
This holds true for Mancini and Bartin as well as for Holmes,
Cardozo and the Restatement, whereas public policy was of less
importance to Story.2 But
" t h e principle vice of the public policy concepts is that they provide a sub-
stitute for analysis. T h e concepts stand in the way of careful thought, of dis-
criminating distinctions, a n d of true policy development in the conflict of
laws."3
The traditional rules of choice of law are too broad and therefore
in need of limitation; they must be reformulated so that the
lex fori will be declared as applicable instead of public policy.4
" I f we start with the rule of the forum we limit the use of public policy as
a n exception to situations in which legislation or precedent has formulated
a rule whose overgeneralization requires modification." 3 [Ehrenzweig a p p a -
rently means the traditional rules of T y p e 1, supra p . 121-122.] "Since gene-
ralized conflicts rules in this country determine primarily the 'status' of per-
sons, land a n d negotiable instruments 6 or follow p a r t y autonomy, 7 the use
of public policy has virtually a n d properly been limited to these fields. [Eh-
renzweig apparently has reference to the traditional rules of T y p e 1, supra
p . 121-122.] I n other areas the continuing need for t h e ever narrower positive
formulation of choice of law rules as exceptions from the application of the
basic lex fori [here he probably means the rules of T y p e 2 a n d the rules of
T y p e 3 which have been obtained through interpretation of domestic rules,
supra p . 121-122J, is likely to make resort to the negative of public policy
unnecessary and indeed impossible," 8
7. Unilateral Rules of Choice of Law
Ehrenzweig also reviews unilateral rules of choice of law.1 In

many cases they leave a "vacuum", e.g., for foreign transactions
1. Lex Fori 672; similar Treatise 34.2.
2. Lex Fori 672-675; Treatise 342-344.
3. Lex Fori 675-676 a n d Treatise 345, quoting Paulsen and Sovern, "Publie
Policy" in the Conflict of Lawss 56 Col. L. Rev. 969, 1016 (1956).
4. Treatise 345.
5. Treatise 344.
6. Cf supra p . 211 at note 27, p . 212 at note 32.
7. Cf. supra p. 211 at note 24, p. 213 at note 4 1 .
8. Treatise 345.
1. Cf. Supra p . 200.
(13I) THE CRISIS OF CONFLICT OF LAWS 221
2
involving foreigners. On the basis of international treaty or, to
the extent that conflicts law is uniform, one could simply deny
international jurisdiction of the forum after a competent foreign
forum had been ascertained.3 In France, where Article 3 of the
Civil Code contains several unilateral rules of choice of law, and
in Germany, where the Introductory Act to the Civil Code
contains many such unilateral rules, they have been enlarged by
analogy to general conflicts rules. This is "improper" 4 and is due
to a "pseudo-internationalistic-conceptualistic attitude". 5
Also objectionable is the solution proposed by Pilenko and
Sohn to handle the case where the forum does not want to apply
its own law by applying foreign law, where the foreign state so
desires. This is regarded as excluding the policy of domestic law.
"The forum may prefer to apply foreign or forum law notwithstanding foreign
conflicts rules to the contrary." 6
Because they do not recognize the priority of the lex fori, advocates
of unilateral choice of law rules are themselves internationalists,
despite the fact that they reject "internationalism" in private
international law.
"But the lex fori is the rule rather than the exception." 7
2. Lex Fori 686.

3. lb. 686-687.
4. lb. 687; Treatise 312.
5. Lex Fori 687.
6. lb. 687; almost identical Treatise 312-313.
7. Lex Fori 687-688; similar Treatise 313.
CHAPTER III
FORUM CONVENIENS
r-pHE basic lex fori means that every state applies its own law.
-*- This could tempt some to shop for a suitable forum. Ehren-
zweig tries to check this tendency with the doctrine oî forum
conveniens (a counterpart to the wellknown doctrine oîforum non
conveniens which is the law in many states of the U.S.A.1). The
valid rules of international and interstate jurisdiction should be
improved: they should be partly expanded, partly restricted with
the goal to
"secure a lex fori properly applicable in view of a substantia] contact of
the court with parties or facts".2
The ascertainment of a forum conveniens is the main task of the law of

conflict of laws.3
"[Cjonflict rules, insofar as they are not established by constitutional limi-
tations* or international conventions, would, upon a comparative analysis
of forum and foreign policies, come into play primarily in determining whether
the defendant would be unfairly dealt with under the law of the forum, and
where governmental interests otherwise require displacement of that law". 5
i. See Treatise 120-127.

a. Lex Fori 644; similar Treatise 314-315.
3. Lex Fori 644.
4. Cf. supra p. 210-211.
5. Lex Fori 645.
C H A P T E R IV
S U M M A R Y BY E H R E N Z W E I G
TN a nutshell Ehrenzweig states his doctrine thus:
" T o repeat: T o d a y the law of the forum, at least in terms, is treated as an

exception to a priori propositions which, far from being based on "logical"
postulates or practical exigencies, are the heritage of academic aberrations
in the history of conflicts law. T h e latest of these aberrations, in this country
as well as abroad, is an internationalist or universalist ideology which has
established a fictitious allocation of "competencies" thought to entitle t h e
laws of the several states to ubiquitous application according to a small
n u m b e r of broad and vague formulas. This ideology has forced American
courts to justify the actual application of their own law or the law intended
by the parties, by various artificial devices, such as arbitrary localization of
allegedly decisive contacts, procedural characterization, renvoi a n d resort
to public policy. T h e current decline of this ideology will facilitate the a b a n -
d o n m e n t of these academic exercises a n d the r e t u r n to the lex fori as a basic
principle, which alone can remove the prevailing uncertainty and confusion.
This development will in turn be promoted by the current expansion of
traditional jurisdictional concepts a n d their concomitant limitations u n d e r
a nascent doctrine of forum conveniens. With the help of this doctrine, the
regime of the lex fori as the basic rule will ultimately come to mean appli-
cation of the "law of a proper forum", i.e. of a court whose law m a y be proper-
ly applied. But there will remain several legitimate areas for the " c h o i c e "
of the proper law; namely the choice of forum law as the law most appropriate
to govern the procedure of the court, a n d the application of foreign law where
this is required either by formulated rules {statutes, precedent or doctrine),
or, in the absence of such rules, by a " t r u e r u l e " of choice ascertained by the
interpretation of t h a t local rule whose displacement is sought.
I n some areas the law of the forum as such has always been a n d is likely
to remain inapplicable. Thus, typically, formulated rules of choice have always
compelled application of foreign laws to foreign marriages (personal law or
lex celebrationis). Similarly, certain transactions concerning land have been
generally subjected to the law of the situs. Such formulated rules leave little
room for analysis or speculation. Outside these a n d a few other areas courts
all-too-frequently have been compelled to seek justice through the nearly
impenetrable labyrinth of obsolete dogma a n d to clothe their true mo-
tivations in terms which, while referring to allegedly formulated rules, on
closer examination fail to explain their holdings. All through this treatise
the a t t e m p t is made to reformulate these holdings in terms of "true rules"
t h a t are sought in the first place by analyzing these holdings for their true
motivations, or, in the last resort, in the absence of consistent practice, by
determining " t h e reach of a policy underlying local l a w " . " 1
i. Treatise 352-353. (References and notes omitted.) Cf. already Ehrenzweig,

Choice of Law: Current Doctrine and "True Rules", 49 Cal. L. Rev. 240-253,
250-251 {1961).
CHAPTER V
CRITIQUE1
i. Vagueness and Alterations
\ ACHILE Currie paints with the precision of a Holbein (or
Bruegel), Ehrenzweig's canvas shimmers and changes.
He characterizes the application of foreign law as an exception.2
But what kind of exception? It should be analytical and not
quantitative, as stated in the Treatise.3 Is this a deviation already
from his position in the article on the Lex Fori ? We read in the
article on the Lex Fori, as well as in the Treatise, that the traditional
conflict rules should be restricted to ever narrower fact situations
and yet their extent and content do not essentially change.4 In
another place in the article it is even explained that the application
of foreign law will increase ! 5 Finally, Ehrenzweig has told me
personally a short time ago that the name "basic" rule for the
lex fori would be better replaced by the name "residuary" rule.
He would thus come very near to the traditional conflicts law.
Moreover, in the article on the Lex Fori, two "basic" rules
appear, namely, the lex fori and the autonomy of the parties. In the
Treatise, however, the Rule of Validation is added.6
i. For other critiques see, e.g., the following book reviews: De Nova 51 Cal.
L. Rev. 461-468 (1963) and 53 Revue critique d e droit international privé
400-403 (1964); Leflar 16 Stanford Law Review 234-240 (1963); Ailes
63 Col. L. Rev. 1544-1549 (1963); Graveson 79 L. Q.. Rev. 441-445 (1963);
Kloss 13 Int. Comp. L. Q . 323-326 {1963) ; GamiUscheg 28 Rabeis Zeitschrift
für ausländisches und internationales Privatrecht 144-151 (1964); J . - G . C.
(Jean-Gabriel Castel) 42 Can. B. Rev. 331-337 (1964); Weintraub 16 J . Leg.
E d . 479-484 (1964); Cowen 58 Am. J . Int. L. 548 (1964). And see, e.g., the
following articles: Comment, The Second Conßicts Restatement of Torts : A Caveat,
51 Cal. L. Rev. 762-791, 782-791 (1963); Baxter, Choice of Law, 42 Can. B. R e v .
46-77 (1964); Heini, Neuere Strömungen im Amerikanischen Internationalen Privat-
recht, 19 Schweizerisches J a h r b u c h für internationales Recht 31-70, 61-70
( 1964) ; De Nova, Le concezioni statiunese dei conflitti di leggi viste da un continentale,
39-42 (Valladolid 1964).
2. Supra p. 208-209.
6. Supra p. 211 at note 24, 213 at note 4 1 .
T H E
Furthermore, in the article on the Lex Fori the traditional rules

(and the basic rule of party autonomy) stand opposed to the lex
fori. In the Treatise, however, there are between the traditional
rules (and party autonomy and the Rule of Validation) on the
one hand, and the application of the lex fori on the other hand,
differentiated (and not quite uniformly defined) connecting
links, namely true rules and interpretation of the substantive law
of the lex fori so that it will not be applied in individual cases.7
It almost seems, therefore, as if Ehrenzweig is changing from a
revolutionary to a reformer. His soul can perhaps thus be saved
for the traditional system of conflict of laws, while Currie would
seem to have burnt his boats.
2. Promotion of the Lex Fori
The fact that domestic and foreign law are treated differently by
giving preference to the lex fori is confirmed by several statutes. Thus,
Article 12 of the Introductory Act to the German Civil Code
runs: "Any claim resulting from a tort committed in a foreign
country can be maintained against a German only to the extent
that it would be valid according to German law." Foreign
tortfeasors are not granted the same privilege.
According to Nussbaum, the courts also show a "homeward
trend". 1 They prefer to apply domestic rather than foreign law,
partly for reasons of convenience, partly out of an interest of
order in a "real" decision,2 since they are more likely to make a
mistake in applying foreign law than in applying domestic law.3
Statutes must be applied. But one can find fault with their
policy, and thus Article 12 of the Introductory Act to the German
Civil Code comes in for criticism.4
The courts which treat domestic and foreign law differently by
giving preference to domestic law can be censured because they
7. Supra p. 210-212.
1. Nussbaum, Deutsches internationales Privatrecht, 43 (193a).
2. Cf. supra p. 186, 114 at notes 34-35.
3. Kegel, op cit. (supra p. i 8 i note 3), 40-41.
4. Cf. as to so-called "exclusive conflicts rules" a n d as to so-called "conflicts
rules of public policy" Kegel, op. cit., 87, 43.
22Ö GERHARD KEGEL (136)
have incorrectly applied valid conflicts law. Where they have

developed customary law, its policy, like that of statutory
prescription, can be attacked.
Ehrenzweig maintains that the application of domestic law is
the rule and the application of foreign law the exception. Heasserts
this as valid law 5 and sanctions it as policy.
However, the practical significance of this doctrine can hardly be
evaluated, since Ehrenzweig's statements do not clearly reveal
whether, in comparison with the assertions of the traditional
system of conflict of laws, his doctrine would apply more or less
foreign law. 6 He, furthermore, leaves us without proof for his
varying statements concerning the relative frequency of the
application of domestic and foreign law under the doctrine of
the basic lex fori.7
If, as a practical matter, everything is done the old way, and
the lex fori only analytically forms the rule and the application of
foreign law the exception, Ehrenzweig could justify his doctrine
only by demonstrating that it explains the valid law more easily
than does the traditional system of conflict of laws. However, if
the practice should change and more domestic law be applied than
previously, B. policy therefor must be advanced.
Ehrenzweig refers to the history of private international law. 8
We have not followed him along this path. Strong doubts
concerning Ehrenzweig's evaluations of history have been
registered. 9 Especially the beginnings of American conflicts law 10
seem to be strongly idealized. However, we will leave this ques-
tion open. Since conflicts law has developed so rapidly since
Story and Savigny, a reference to earlier times does not suffice to
justify a theoretical and even a practical revolution in the present.
5. Bute/. De Nova 51 Cal. L. Rev. 464 (1963): " . . . Ehrenzweig's suggestions

as to the correct way of handling international and interstate cases are pro-
posals de lege ferenda, at least in part, although they sound a t first like state-
ments de lege lata", quoting from Treatise 314: "Yet, for some time to come,
our law of jurisdiction will compel us to preserve some of the structure of
present doctrine."
6. Supra p . 224.
7. Cf supra p . 209, 210 note 16, 121 note 25.
9. Heini (supra p . 224 note 1) 6 5 ; Gamillscheg (ib.) 147.
(l37) THE CRISIS OF CONFLICT OF LAWS 227
The wisdom of distant ancestors could at the most embellish
conclusions reached on other grounds.
In addition, Ehrenzweig refers to court decisions. To be sure,
most of them still adhere to the traditional system of conflict of
laws. But in at least nine tenths of the cases foreign and domestic
law coincided. These cases therefore are rejected by Ehrenzweig.11
He could add that, as a result, the lex fori had prevailed in these
cases.
Now "dicta" are concededly of less importance than "rationes
decidendi". But they are by no means a negligible quantity. Why
should the courts resort to dicta? To clothe their true motivations
in traditional concepts?12 Or to show how learned they are in
doctrines which they do not examine or which they even dis-
believe?
Moreover, in private international law one has to remember
that work actually proceeds in accordance with the traditional
rules: the court first considers which law is to be applied, and if,
on the basis of traditional conflicts rules, it arrives at the appli-
cation of foreign law, it strives to determine the content of the
foreign law. So much the better if it turns out that the foreign
law coincides with the lex fori! But just this operation (not simply
the words, but the deeds !) confirms the rule of the traditional
system.
Accordingly, the last root for Ehrenzweig's basic rule of the
lex fori is seen in his allergy to the "governing" foreign law.13 It is
inconceivable to him that foreign law governs in the home
state: 14 the domestic legal order is impermeable. Foreign law can
only be applied when the domestic substantive law itself waives
its claims to application.15
But it is still the domestic conflicts law which, all by itself,
declares the foreign law as applicable ! It refers to foreign law on
grounds of conflicts justice, which cannot be derived from the
substantive law of the forum, as has been stated previously
ii. Supra p. 214 at note 53,
12. Cf. supra p. 223.
13. Supra p. aog at notes 6, 7.
14. Cf. supra p. 106-107 a 8 to t n e vested rights and local law theories.
15. Supra p. 209 at notes 9, 12.
16
against Currie. However, justice means that we may not
measure by a double standard. This is why the lexfori may not
be preferred: it is to be applied under the same conditions, in the
presence of the same connecting factors as the law of any foreign
state.
To be sure, Ehrenzweig recognizes conflicts justice but wants
to restrict its effect to certain rules of the traditional law of
conflict of laws which he defines not quite identically.17 One may
suppose that, in his opinion, both the "basic" rules of party
autonomy and validation18 are founded on conflicts justice.
To the extent that Ehrenzweig recognizes conflicts justice as
the foundation of conflicts rules, his doctrine is inconsistent. Why
should not the lex fori take precedence here also? Why should not
conflicts justice decide also in those cases in which Ehrenzweig
allows the lex fori to take precedence?
It is quite another matter whether the traditional system of
conflict of laws can be improved in several or many areas on the basis
of a better understanding of conflicts justice. In torts, for example,
one could apply the law of the residence of the tortfeasor and
the injured person instead of the law of the place of the accident
16. Supra p. 198-202.
18. Since both these rules {supra p. 211 at note 24, p . 213 at note 41) are not
" b a s i c " , there is n o need to go into particulars here. Only a general doctrine
of private international law can be " b a s i c " . T h e rule of the lex fori would con-
stitute such a " b a s i c " rule if it were to be recognized. However, party auto-
n o m y a n d the rule of validation belong to the special doctrines of private
international law. Party autonomy belongs to the rules concerning contracts.
T h e rule of validation belongs mainly to the rules dealing with legal trans-
actions (contracts, trusts, marriages a n d wills). O n e would be equally jus-
tified in designating the lex ret sitae as a " b a s i c " rule governing immovables.
Moreover, the rule of validation is not only doubtful de lege lata, but also de
lege ferenda. Legal transactions are declared void because of improper form
or in order to protect a party or the general public ("commerce"). W h e r e
form is concerned, one can afford to be lenient, as is demonstrated by the
H a g u e Agreement on the Conflict of Laws Relating to the Form of Testa-
mentary Dispositions {cf. Heini [supra p . 224 note i ] 67). However, the pro-
tection of a p a r t y or of the general public may not be sacrificed so easily to
the interest of (both?) parties in the validity of the transaction; rather it
would be feasible to sacrifice the protection of a foreign party to the protec-
tion of domestic commerce {cf. Treatise 475-479; Heini ib.; Gamillscheg [supra
p . 224 note 1] 150; for an independant approach see Miaja d e la Muela,
Soluciones "sanas" a los conflictos de leyes: "favor negotii" y respecto a las derechos
aquiridos, 17 Revista española d e derecho internacional 16-38, 28-38 [1964]).
in cases where the tort took place abroad between residents of

the same state, as happened in Grant19 and Babcock.20 But the
application of the lex fori per se would not thereby be increased,
even though more suits might be commenced in the residence
state than in the state where the accident took place.21
We have seen that statutes and courts occasionally prefer the
lex fori.22 But members of the "forum faction"23 are seldom
among the authors. One could understand them if they themselves
were often occupied as expert witnesses or as judges in the
laborious application of foreign law. But even then they should
not advocate the lex fori. For they thereby retard legal culture,
which, in a world of increasing international contacts, must be
developed not in isolation, but rather in communication with the
legal systems of other states.
And even should we limit ourselves to the interstate conflicts law
of the United States (as opposed to its international conflicts law) 2i
would not a liberal attitude vis-à-vis the laws of the sister states
be more appropriate than preference for the law of the forum
state?
3. Dissolution of Pseudo Problems
Ehrenzweig, like Currie and like Pilenko and Quadri (advocates

of unilateral conflicts rules),1 regards most of the general doctrine
of conflict of laws as passé.2 In its place comes his doctrine as
a new general theory.3
Classification is viewed by Ehrenzweig (justifiably, in my
opinion) as a problem of interpretation/ The conflicts rules of the
forum are expounded in the traditional system of conflict of
19. Grant v. McAuliffe, 41 Gal. 2d 859, 264 P. 2d 944, 4a A.L.R. 2d 1162
O 9 5 3 ) ; cf. supra p. 98-99, 118, 123, 147-162, 187, 191-194, 203.
20. Babcock v. Jackson, 12 N.Y. 2d 473, 191 N . E . 2d 279, 240 N.Y.S. 2d
743 (1963); i/". supra p. 100-101, 118-119, 187, 194,203.
21. Cf. supra p. 103-104.
22. Supra p . 225.
23. Supra p. 95.
24. Cf. Treatise 16-21 and supra p. 95-96.
2. Supra p . 215-221.
4. Supra p. 215 in fine at note 1.
23O GERHARD KEGEL (H0)
laws. Since Ehrenzweig obtains the decision partly through an

interpretation of the substantive rules of the forum, classification
must, according to him, be understood partly as an interpre-
tation of substantive law.
However, one should not overestimate the determination of
classification as a problem of interpretation. The individual
questions of interpretation are thereby only described, not solved.
What the interpretation depends upon is decisive. In my opinion
this is always the conflicts justice 5 to which Ehrenzweig grants
only a partial validity.6
The classification of legal rules as procedural, with the result that
the lex fori governs, is too often resorted to. Ehrenzweig regards
such a classification as only a crutch to arrive at the application
of the lex fori. Nevertheless, he wants to hold on to the crutch until
the victory of the basic rule of the lex fori is achieved.7 He does
not think much of the distinction between substantive and
procedural law and does not wish to see the rule of the lex fori
restricted by a limitation of procedural classification.8
However, the application of the lex fori is founded only on an
interest of order9 in the efficient conduct of procedure, namely,
where courts, attorneys and parties are active in pleading and
practice. Where pre-trial and extra-trial facts have to be judi-
cially determined, e.g., in a limitation of action or set-off, no
basis for the application of the lex fori exists.10 Therefore, in this
respect, contrary to Ehrenzweig, the distinction between sub-
stantive and procedural law is important for the law of conflict
of laws and should not be effaced in order to apply the lex fori as
often as possible.
Ehrenzweig's solution of the preliminary question11 is at first
blush surprising. One would think that preference for the lex fori
would lead him to submit the preliminary question to the conflicts
5. Supra p . 202 a t note 26.
6. Supra p . 211 a t note 27.
7. Supra p . 216.
8. Supra p . 216.
9. As to this concept supra p. 196 at note 1.
10. Kegel, op. cit., 377 a n d Die Grenze von Qualifikation und Renvoi im interna-
tionalen Verjährungsrecht, 33-37 (1962).
11. Supra p . 216-217.
( 14-1 ) T H E C R I S I S O F C O N F L I C T OF L A W S 23I
law of the forum, that is, to answer the preliminary question

"independently". But he concerns himself not with the conflicts
law, but with the substantive law of the forum, and the preliminary
question deals with conflicts law, namely, the question whether
the conflicts law of the forum decides ("independent" answer to
the preliminary question) or the conflicts law of the state whose
law decides the main question ("dependent" answer to the
preliminary question). Once the lex fori is dismissed in solving
the main question, one'could expect that the preliminary question
is abandoned to the conflicts law of the foreign state. Ehrenzweig
seems to be moving in this direction in his results, 12 although he
wants to achieve these results by means of an interpretation of
the lex fori.13
In reality one must choose here between two interests of
order. Either one chooses the interest of deciding the main
question just as it would be decided in the state whose law is
applicable to the main question according to the conflicts law of
the forum (the interest in international uniformity of result). Then
one must abandon the preliminary question to the conflicts law
of the state whose law decides the main question (the "dependent"
solution of the preliminary question). Or one chooses the interest
of deciding the preliminary question always in the same manner
without regard to its relationship with other elements (the interest
in homogeneity of result or in substantive uniformity of result). Then
one must leave the preliminary question to the conflicts law of
the forum (the "independent" solution of the preliminary
question). 14
Let us take Ehrenzweig's example of the man from Illinois
who married his first cousin in Kentucky and who was acciden-
tally killed by another man from Illinois. 15 Let us further assume
that the bulk of his property consists of immovables in Minnesota.
According to Ehrenzweig, the widow would receive nothing
from the tortfeasor since her marriage is regarded as void in
Illinois, and Minnesota is guided by the law of Illinois (the
12. Supra p . 216-217.
13. Supra p . 216 at notes 1-3.
14. Kegel, op. cit., 116-117.
15. Supra p . 217.
232 GERHARD KEGEL (H2)
"dependent" solution of the preliminary question), although the

marriage is regarded as valid in Minnesota. However, she would
inherit the immovables in Minnesota. In my opinion, the interest
in substantive uniformity (homogeneity) of result requires that
the marriage be always judged in the same way in the same state,
namely, according to the conflicts rules of this state (the "inde-
pendent" solution of the preliminary question). The courts of
Minnesota should therefore give a claim for damages to the
widow. I only agree with Ehrenzweig when he states that the
place of injury is of no consequence in deciding the validity of
the marriage.
Ehrenzweig's discussion of renvoi16 [sformai: he wants to solve
the problem by reformulating the conflicts rules of the forum.
But here one is confronted with a choice of legislative policy. How
are the conflicts rules of the forum which declare foreign law
applicable to be understood? Do they want you to go into foreign
substantive law? Or do they want you to decide like the courts of a
foreign state which, perhaps, on the basis of their conflicts law,
apply the substantive law of the forum (remission) or of a third
state (transmission) ? In my opinion, an interest of order in a
"real" decision demands that one be guided by the foreign
courts; for otherwise one would actually be applying not foreign
law, but some sort of improvisation of the imagination.17
Concerning fraud on the law, Ehrenzweig restricted himself to a
short comment.18 We agree with him that interpretation decides. To
be more exact: the conflicts rules of the forum have to be inter-
preted. But the question is not exhausted with a reference to
interpretation and, despite Ehrenzweig, cannot be banished
from the general theory of conflicts law. For it concerns a typical
pattern of behavior. Whoever commits a fraud on the law at-
tempts to be smarter than the law. He commits "contempt of law".
Therefore, it is possible to make the following general statement:
the attempt must fail in serious cases, since it infringes an interest
of order in respect for the law (in "autorité de la loi"). It depends on
16. Supra p. 117-118.

17. Supra p . 204 a t notes 34, 35.
18. Supra p . 219.
r H E
(l43) CRISIS OF C O N F L I C T OF LAWS 233
the weight of the indirectly evaded rules of substantive law (for

example, divorce, adoption), but also on the circumstances of
the evasion (for example, utilization of special advantages such
as wealth, power or prestige) and on the possible consequences in
future cases (for example, the spreading of abuse).19
As to failure to plead or prove foreign law or connecting factors,
Ehrenzweig emphasizes the lex fori as the law primarily appli-
cable. He even suggests that the court need not care for the
conflicts law of the forum unless at least one of the parties
insists on the applicability of foreign law and proves its contents.20
Here we find ourselves in an area which is treated quite
differently in the individual states. As regards the application of
foreign law, one would think that the court would have to concern
itself with domestic conflicts law just the same as with domestic
substantive law. When according to domestic conflicts law
foreign law has to be applied, it will depend on rules of procedure
whether the court must determine the content of the foreign
law itself or whether a party must prove it. One cannot assume
a priori that a court which has to determine the facts itself (for
example, in domestic relations cases) need not concern itself
with the applicable foreign law. In addition, it cannot be said
that the lex fori is automatically applicable in the event that the
applicable foreign law cannot be ascertained. For example, one
could refer to a related legal system: one could, e.g., consult
French law in order to solve an insolvable question in Belgian law.21
The better the chances in one state of determining the foreign
law, the less significance will the lex fori have as an auxiliary
solution. Ehrenzweig makes a virtue of an embarrassing situation
when he capitulates immediately to the lex fori in face of difficul-
ties in ascertaining the foreign law.
If the ascertainment of connectingf actors should prove to be difficult
likewise, the lex fori need not be applied forthwith. There are
many interim solutions which are preferable. For example, if
nationality determines the applicable law, one could treat a
ig. Cf. Kegel, op. cit., i6g, 171-172.

20. Supra p . 219.
21. Cf. Kegel, op. dt.t 178-179, 182-183.
person whose nationality is undeterminable as stateless. Where

domicile determines the applicable law, and it is unknown, the
last known domicile could be chosen as the connecting factor. 22
Public policy is a parade ground for the basic rule of the lex f ori.23
But it serves substantive private law justice, while the conflicts
rules serve conflicts justice. Normally, conflicts justice has
priority, and only exceptionally substantive justice. 24 This should
not be surprising, since justice is really indivisible. Incidentally,
the elimination of foreign law need not necessarily lead to the
lex fon. As is well known, the gap can be closed by other means. 25
Concerning the unilateral rules of conflict of laws,26 Ehrenzweig is
right that it would constitute an infringement of conflicts policy
to apply foreign law because it is applicable according to the
conflicts law of the foreign state. However, it would not be
"improper" for the statutory unilateral conflicts rules in Germany
or France to be expanded into universal rules. That does not
depend on a "pseudo-internationalistic-conceptualistic attitude",
but rather on conflicts justice: what is just to the substantive
law of the forum is also just to the substantive law of foreign
states.
O n the whole, then, it would appear that the attempt to
replace the general theory of the law of conflict of laws with a
basic rule of the lex fori cannot succeed.
4. Forum Conveniens
Just as Currie seeks justification for his doctrine of governmental
interests in constitutional law, so Ehrenzweig delves into inter-
national procedural law, namely into jurisdiction, in order to
alleviate the danger of forum-shopping which is connected with
the preferential application of the lex fori. In Ehrenzweig's
opinion, the main task of the law of conflict of laws is to deter-
mine a. forum conveniens.1

23. Supra p . 210.
24. Supra p. 198-199, 114.
25. Cf. Kegel, op. cit., 188-189.
26. Supra p. 202-221.
T H E
The law of conflict of laws determines which state's law is to

be applied. The law of interstate and international jurisdiction
determines which state's courts are to decide. The structure of
both areas (conflict of laws and jurisdiction) is similar, but the
interests and, therefore, also the results may differ.2
This is demonstrated, for example, when the circumstances have
changed. If, e.g., a New Yorker made a loan to another New Yorker
in New York, New York law would govern. If the debtor later
moved to San Francisco, the courts of California would have
jurisdiction.3
As a further example of the difference between conflict of
laws and jurisdiction, it should be noted that while jurisdiction
may exist in several states there is often only one applicable law. For
example, in several jurisdictions it is permissible to sue in tort in
the state where the injury took place, as well as in the state where
the tortfeasor is domiciled.4 Jurisdiction for custody decrees
might be with the courts of the child's or the parents' domicile,5
or even with the court that has divorced the marriage of the
parents.6 The explanation for this can be found in the fact that
the way into court should be made as short as possible if one
aspires to efficient judicial protection of rights.
The question of the best judicial protection of a right is not
the same as the best law for the judgment on a right. Only
because Ehrenzweig does not separate these two questions does
2. But see as to modern treaties Ficker, Zur internationalen Gesetzgebung, i n :

2 V o m deutschen zum europäischen Recht, Festschrift für H a n s Dölle 35-63,
56-58 (1963).
3. Cf. Stimson, Conflict of Laws, 56 (1963): " I f the sound policy is to apply
the law to which the parties were subject at the time of the conduct or event
the legal effect of which is in question, a n d not to apply the law of the forum
retroactively to persons and property not subject to the law of the forum at
the time of the conduct or event, then there is no room for the application
of the law of the forum if that application would change the result of the suit.
This is true regardless of the opinion of the court of the forum concerning
the wisdom, policy, a n d justice of the foreign law. A greater injustice would
be done by applying the law to which the parties were not subject at the
time of their conduct or of the event in question."
4. See Kollar, Der Gerichtsstand der unerlaubten Handlung, Doctor's thesis
Cologne 1963.
5. E.g., Ehrenzweig, Treatise 28a.
6. T h u s in E n g l a n d : Matrimonial Causes Act, 1950, s. 26 (1); cf. Dicey
(supra p . 190 note 12) 388.
236 GERHARD KEGEL {*4ß)
he come to the conclusion that the law of conflict of laws should
be replaced with a doctrine of'forum conveniens.
Moreover, this is also undesirable because the law of juris-
diction is far less developed than the law of conflict of laws and
because the conflicts laws of states differ far less than their rules
of jurisdiction.7
5. Conclusion
Ehrenzweig's doctrine of the basic rule of the lex fori appears to
me to be unsubstantiated de lege lala and undesirable de lege
ferenda, since it represents an anachronism in a world which is
becoming increasingly smaller. The attempt to determine the
spatial validity of the substantive rules of the lex fori by inter-
pretation of these rules themselves is doomed to failure and
fails to harmonize with the present-day acceptance of universal
conflicts rules which are based on conflicts justice. The general
doctrines of the law of conflict of laws cannot be wiped out with
a wave of the hand and a. forum conveniens cannot replace conflicts
law.
Ehrenzweig is suffering from the relatively slow progress which
conflicts law is making in the United States. He is impulsive
and possessed of an extremely versatile mind. In my opinion
this leads him to launch his counterattacks too sharply and to
take up positions which in turn are open to attack. However,
because he is impulsive and versatile, he may yet change his
opinion and could, perhaps, embrace a purified (or reformed)
system of conflict of laws in the traditional sense.1 In any event,
the enormous output of work which Ís represented by his Treatise
and the numerous articles which preceded the Treatise still retain
their profound significance, even for those of us who are unable
to accept the doctrines of the master.
7. Cf. Fragistas, La compétence internationale en droit privé, Recueil des Cours

19G1 III, p. 203: "Il est peu de matières où la recherche comparative des
différents droits révèle autant de dissemblances que dans ce domaine."
1. Cf. supra p. 225.
PART III
S U B S T A N T I V E LAW
npHE traditional system of conflict of laws is not only being

attacked by the "forum faction", with the intention of
discriminating against foreign law. It is not only being fused
with constitutional law (Currie), or replaced by rules of conflict
of procedural laws, namely, by determination of the "proper
forum" with the application of the lex fon (Ehrenzweig). It is
not only being fused with the law of nations.1 To a greater or
lesser degree it is also being dissolved into substantive law. This
is what the "substantivists" are doing.
They fall into two groups. One group wants to form new
substantive law for cases in which, according to their opinion,
the application of the substantive law of a state (which is
demanded by conflicts law) is unsatisfactory. Here one can speak
of a "supplementary" substantive law. The other group maintains
that a "New Law Merchant" has developed as a uniform substan-
tive law of world trade. One can call it a "primary" substantive
law.
i. E.g., Bühler, Der völkerrechtliche Gehalt des internationalen Privatrechts, Fest-

schrift für Martin Wolff 177-201 (195a) and Internationales Steuerrecht und
internationales Privatrecht (i960); Sauveplanne, Internationaal Privaatrecht: Inter-
nationaal Recht? (1962).
CHAPTER I
SUPPLEMENTARY SUBSTANTIVE LAW

i. Ernst Steindorff
ryiHE most radical position in this area has been taken u p by

Ernst Steindorff in his book Sachnormen im internationalen
Privatrecht (1958). 1 To be sure, he does not want to abolish the
law of conflict of laws and replace it by freely developed sub-
stantive law. Rather, he seeks to develop, with special reference to
the substantive law of rival legal systems, substantive law solutions 2
which he systematically includes with the law of the forum for
international cases or, in a broader sense, with the conflicts law
of the forum. 3
"Consequently, if the formation of a judicial decision takes the existing rules
of a rival legal system into consideration, this represents at the present time
the only chance to make any kind of evaluation of the peculiarities of an
international fact situation. Therefore, the consideration of several legal
systems in the m a n n e r herein described m a y be regarded as a legal regulation
which is oriented to the peculiarities of international cases." 4
This type of new formulation should take place only in a few

cases :
" T h e matter is rather restricted to a n a t t e m p t to solve some conflicts law
problems on the basis of the proposition that conflicts law has to keep its
own substantive law solutions ready in case of emergency. This proposition
would lead to the conclusion that, as a practical matter, new substantive
law solutions for international fact situations will have to be evolved in only
a few cases." 5
Yet Steindorff believes that such new formulations

" d o not merely lie on the edge of conflicts law, are not m a d e necessary mere-
ly by conflicts law rules, but rather constitute an essential element of conflicts
law itself." 6
1. Subsequently cited only by page number,

a. E.g., p . 189-191 for the conflicts law of torts.
3. Cf. the quotations infra at notes 5, 6.
4. p . 190.
5- P- S3-
6. p. 18-19. (Emphasis added.)
T H E
First of all, the method of the traditional system of conflict of
laws, namely the formation of universal conflicts rules, should
be restricted and supplemented by "the formation of new sub-
stantive rules:
"The purpose of this work is merely to develop and correct the points of
view for the solution of legally unsolved problems." 7 ". . . purpose of this
investigation, which was principally concerned with a critique of methods". 8
"International fact situations" comprise the subject matter for the

application of newly formulated substantive law. They are
defined with reference to the Dutchman Jitta, who drew a
distinction between national, relatively international, and absolutely
international fact situations.9 National fact situations are purely
domestic cases in which the lex fori obviously governs. Relatively
international fact situations are cases where, apart from the fact
that the forum is domestic, a single foreign state is concerned, for
example, when a marriage which took place in France between
Frenchmen has to be decided in Germany. Absolutely international
fact situations are cases where, apart from the fact that the forum
is domestic, several states are concerned, for example, when a
German court is called on to decide a marriage between a
German and an Italian or between a Frenchman and an Italian.
SteindorfT concerns himself only with absolutely international
fact situations and calls them simply international fact situa-
tions.10
Examples for him are: law of foreigners;" international flow
of goods (sale) ;1Z international money transactions (for example,
the preference for payements internationaux in France by permission
of gold clauses);13 specialties for export cartels;14 special rules
for international arbitration clauses in France.15 In addition,
7- p. 23.
8. p. 275.
9. p. 23-24. Cf. the approving citation of Jitta, other Dutch authors and
Fränkel p. 19-20.
10. p. 24.
11. p. 25,30-35.
12. 266. Cf. p. 22 (international trade).
13. p. 22, 25, 26, 33.
14. p. 25-26.
'5- P- 25.
24O GERHARD KEGEL (ï5°)
from the general doctrine of the law of conflict of laws: classi-

fication, which comes in for detailed examination ;16 adjustmenti 7
and public policy.18 Of the special doctrines, Steindorff makes a
complete examination of contracts19 (principally economic-
political regulations)20 and torts 21 (mainly cases involving com-
petition and the protection of industrial property).22
By means of these examples Steindorff differentiates inter-
national fact situations into two concepts, a broader and a nar-
rower. The broader concept of international fact situations
encompasses the field in which the question can arise, in any event
in the exhaustively studied cases of classification, contracts, and
torts, whether newly formed substantive law is to be applied.
These are the cases in which other laws, along with the applicable
law,23 are connected with the fact situation. Thus, the lex fori is
applicable (apparently)24 in classification cases, but the lex causae
has to be taken into consideration. In contracts, the law chosen
by the parties is applicable, but other laws which contain
compulsory regulations must be taken into consideration. In
torts, the law which is most favorable to the plaintiffis applicable,
but the laws of other places where the tort Ís committed have
to be taken into consideration.25 When he refers to contracts
(party autonomy, compulsory regulations)26 and to torts (the
law which is most favorable to the plaintiff, other places where
the tort is committed), Steindorff speaks of "multiple connecting
factors".27
If the connecting factor of the fact situation with the appli-
cable law is considerably stronger than the connecting factors
16. p . 52-115.
17. p . 17-19, 26-30, 35.
18. p . 34.
19. p . 192-259.
20. p. 205-24.1, 257.
2 1 . p . 116-191.
22. E.g., p. i24-r27, 129-153, 161-162, 166-169.
23. Steindorff speaks of a "primarily" " a p p l i c a b l e " law, as well as of a law
which is " p r i m a r i l y " " t a k e n into consideration" or "considered": p . 273-
274.
24. T h e matter is not quite clear; cf. p . 114-115, 276.
25. See especially p. 182-184, 187-188.
26. Cf. the conclusion p. 255-259.
27. E.g., p. 116, 192.
(151) THE CRISIS OF CONFLICT OF LAWS 24I
with other laws, the controlling law would remain applicable.
The same would be true where the other laws coincide with the
applicable law (in classification cases: if they classify similarly).28
Otherwise we have an (absolutely) international fact situation
in the narrower meaning29 (one could also say: in the "true", in
the "intensified" meaning). Here, new substantive law must be
formed, taking rival laws into consideration. Here, conflicts law
must not be "blind to the result" as is normally the case.30
Rather, it must strive for a definite substantive law result, such
as otherwise only occurs in cases involving public policy31 and,
especially, in the law offoreigners.32
Criteria for the limitation of both concepts of an international
fact situation (the broader and the narrower concept) are
therefore the strength of the rival connecting factors and the content
of the rival laws.31
To be sure, not every deviation with regard to the contents of
rival laws suffices to digress from the controlling law. Thus, it is
not enough that a law proves to be indifferent to a given state
of affairs or even prohibits it, but provides the prohibition with
only mild consequences. Rather, a certain "intensity" in the
deviation is necessary.34
"The greater this intensity is, the stronger the connecting factor of another
law must be before it is able to prevail." "
SteindorfF states :
" I must admit that the definition of an international fact situation is still
without the precision needed for practical application . . . Nevertheless I
believe that I have discovered sufficiently exact rules for the solution of
individual problems according to valid law, rules, at least, whose exactness
is not inferior to the conflicts rules with whose help the international fact
situations which are being discussed here are usually solved; the analysis
shows that the results which have been produced at least do not exceed the
traditional rules in inexactitude." 36
28. p. 273-274.
39. p. 274.
30. p. 34.
31. p. 34.
32. p. 30-35.
33. p. 274.
34. p. 274-275.
35- P- 275-
36. p. 275.
242 GERHARD KEGEL C^2)
As an example for the transformation of the substantive law of
the forum according to Steindorff, a case may be mentioned
which was decided by the Oberlandesgericht of Düsseldorf37 and
discussed by Steindorff.38 Here, a German merchant advertised
in the Netherlands and was sued for unfair competition. The
court assumed that Germany was one of the places of the tort,
since the advertisement was ordered from Germany. It therefore
applied German law, to wit, section 1 (infraction of good faith
and morals) and section 3 (false statements in public advertise-
ment) of the Statute on Unfair Competition. But it left un-
decided whether special rules, such as section 7 (bargain sales)
and section 7 a (clearance sales), which would be designed for the
special conditions existing in Germany, could be applied.
For Steindorff, the fact situation would bear a stronger
relationship to the Netherlands than to Germany. Further, be it
assumed that special rules for bargain sales and for clearance
sales are lacking in the Netherlands. To be sure, it could be that
in the Netherlands the "generous" announcement of such sales
is not wanted, but is simply tolerated, so that the "intensity" of
deviation from German law is small.39 However, we will assume
that it still is of importance for Steindorff.
The following picture is thus produced: the fact situation is
connected with both Germany.and the Netherlands, since the
allegedly unfair competition took place in Germany as well as Ín
the Netherlands. German law is more favorable to the plaintiff
and is therefore controlling. But the connecting factor to the
Netherlands is stronger than that to Germany. Therefore, new
substantive law must be formed with regard to both German
and Dutch substantive law: the rules concerning bargain sales
and clearance sales (sections 7 and 7 a of the Statute on Unfair
Competition) are not applied:
"instead of the national [seil. German and Dutch] rules, a new standard can
be employed which, maybe like section 1 of the Statute on Unfair Compe-
tition, is suitable for the regulation of international fact situations".*0
37. Die deutsche Rechtsprechung auf dem Gebiete des internationalen Privatrechts in
den Jahren ig$6 und ig^j No. 171, p. 543 (1962).
38. p. 186-187.
40. p. 188. Cf. p. 189 infine.
T H E
Like Ehrenzweig, Steindorff justifies his doctrine by reference

to history*1 and, like Ehrenzweig, he approves of the time before
Savigny. To be sure, the commentators and Molinaeus often
proceeded from the case, from the legal relationship. However,
in difficult cases they looked for the spatial applicability of the
statutes (statuta) which were to be delimited spatially not only
against each other, but also against the universally valid ius
commune. Because of the existence of the ius commune^ the solutions
were based on substantive law.*2
The sudden change by Savigny is explained by the fact that
the then existing science of civil law had formed the abstract
concepts of legal relationship and subjective right. Thus, Savigny
could seek the applicable law for every type of legal relationship
and thereby select a conflicts law solution.43 Since, thus, every
legal relationship is coordinated with a definite law, the legal
relationships became "nationalized". Savigny softened the harsh-
ness by providing for special connecting f actors for special questions.*''
Moreover, Savigny's method depended on two other results
of the science of civil law in the first half of the nineteenth century.
The first was the "abstraction of law from the f acts" .*5
" N o t only the several parts of legal relationships and institutes are concep-
tually construed as independent elements whose connection determines the
legal relationship a n d whose combination determines the institute. Beyond
that the law is emancipated and established as a n independent organism
from reality, from morality and from politics." 4 6 " T h i s abstraction finds
its extreme in conflicts law, where the abstract legal relationship is m a d e an
object of conflicts law rules and where one strives to find the connecting fac-
tor in its location or center of g r a v i t y . " 4 1 " O n l y the extensive abstraction
from reality which sees in the object of an international connection only a
legal construction permits the conclusion, which is actually not substantiated,
that it must always be possible to find a single location and connecting factor
for the object of a rule of conflict of laws." 4S
On the other hand, Savigny was influenced by the fact that the
science of civil law in the first half of the nineteenth century had
4i- P- 37-51-
42. p. 37-41.
43. p. 41-46.
44. p. 46.
45. p. 46.
46. p. 46.
47- P- 47-
48. p. 47.
244 GERHARD KEGEL (J54)
abstracted from the numerous limitations of private law by public law.

To be sure, the "lois politiques" were later instituted as a counter-
weight and special connecting factors were developed for them.
However, the social function of the legal relationships could
thereby be regulated only imperfectly. 49
Steindorff wants to escape from the "nationalization" of inter-
national fact situations by forming new substantive law for
them. 50
He concentrates on certain difficult areas in the traditional
system of conflict of laws: on classification (because of the relation-
ship between the lex fori and the lex causae) ; on the international
law of torts (because of the splitting-up of the law of the place of
the tort) ; on international contracts law (because of the interaction
of the law chosen by the parties with the compulsory rules of
other laws).
His basic idea is: do not apply different laws to different parts
of a fact situation, but rather mix the substantive laws according
to the relationship of the fact situation with different states.
He finds analogies in public policy and especially in the law of
foreigners.51
A critique, in our opinion, should stress the following points. 52
The actual connection of a fact situation with a state possesses no
significance in and of itself for the applicability, or at least the
consideration, of its law, if the fact situation is judged legally.
If, as a German, I were to buy a bottle of Scotch whisky in a
store in The Hague, the set of facts is actually connected with
the Netherlands, Germany and Scotland. Nevertheless, Dutch
law is obviously applicable. This is so because the strongest
interests support the application of Dutch law (here: the para-
mount party interests of the seller and the interests of com-
merce). 53 Since different laws apply in different states, the
question of when the law of a state controls must not be deter-
49- P- 48-49-
50. p . 50.
5 1 . Supra p. 241 at notes 31, 32.
52. For another critique see Wengler's book review, 158 Archiv für die civi-
listische Praxis 54.3-551 (1960).
53. Cf. supra p. 186-187.
T H E
mined on the basis of actual connecting factors alone, but on the

basis of interests which are founded on definite facts, though not
on facts of whatever kind.54 The law is Ín no way concerned
with all facts (with wind and weather, waves on the sea, heat
on the equator, cold in the North Pole),55 but with order and
with the settlement of disputes between people whose interests are
created by definite facts and which oppose one another.
A choice between the interests of different persons in the
application of different laws is normally possible. Where the
interests which are usually determinative in tipping the scale
prove to counterbalance one another, other interests have to be
taken into consideration. If the question concerns the capacity
of a new-born baby to have rights and duties, many countries apply
the law of the state to which it belongs (or to which it would
belong, if it were capable of having rights and duties). If the
baby is German, according to section i of the German Civil
Code, the capacity to have rights and duties begins with the
end of his birth. If he is Spanish, according to section 30 of the
Código Civil, the capacity to have rights and duties only begins
24 hours after birth. If he were both German and Spanish and
were born in Spain, Spanish law would decide. However, no
new substantive law is formed so that the capacity to have
rights and duties begins, e.g., 12 hours after birth. Should a
German woman desire to marry an Englishman with whom she
has committed adultery, the marriage would be prohibited by
German law (section 6 of the Marriage Act) and permitted by
English law. In such a case, countries employing the principle of
nationality do not permit a half-marriage,56 but generally
require that a marriage corresponds to the domestic laws of
54. Steindorff is sceptical about evaluation of interests; cf., e.g., p. 178-179,

205, 270.
55- Cf Larenz, Methadenlehre der Rechtswissenschaft, p . 280 note 1 ( i960) :
" T h a t which in no way concerns the social sphere of mankind—for example,
. . . occurrences in nature which are devoid of h u m a n influence—falls accord-
ing to its nature . . . into a 'lawless z o n e ' . "
56. Cf the examples of possible contradictions between the personal laws of
adopters and of natural parents, namely results of one and a half family, of
two half families or of one half family, presented as cases in need of "adjust-
m e n t " by von Overbeck 9 Nederlands Tijdschrift voor Internationaal
Recht, Special Issue October 1962, p . 377.
246 GERHARD KEGEL {156)
both parties. Thus, in the instant case, the marriage would be
prohibited. A strong interest of order in a "real" decision57 argues
against the formation of new substantive law.
Also in cases where different substantive laws are applied on
the basis of different conflicts rules and, therefore, gaps or
overlaps arise (the problem of "adjustment"), the interest of order
in a "real" decision requires that the search for a conflicts solution
be given priority. Thus, preference is given to the domestic law
of the Greek father whose right to see his illegitimate child was
denied by the German mother.58
A substantive law solution may only be considered when a
conflicts approach is impossible, namely, when the interest of
order in a "real" decision is weaker than the interests on which
the conflicts rules are based, which proclaim the applicability of
mutually contradictory substantive laws. Such a substantive law
solution is conceivable in all cases where conflicting laws are
present. It is founded on the fact that a rule of substantive law
may change in accordance with its purpose if it coincides with
other rules of substantive law, not of the forum, but of some
foreign state. Here droit interréel is at work.59
For example, if the mother of an illegitimate child should
marry a man other than the child's father, the husband, accord-
ing to section 1706 of the German Civil Code, can give his
family name to the child so that it would appear to be legitimate.
If the husband is Spanish, according to German conflicts law,
both his family name and the name of his legitimate children
are subject to Spanish substantive law. According to Spanish
substantive law, however, legitimate children are not named
after the father, but bear a family name which is a combination
of the family names of the parents. If the mother of the illegiti-
mate child were German and the naming of illegitimate children
by the husband of the mother, according to German conflicts
57. Supra p. 186 at note i, p. 204 at notes 34, 35, p. 232 at note 17.
58. Cf. supra p. 188 note 5.
59. Kegel, op, cit., 18-20; for the opposite view see Francescakis 43 Revue cri-
tique de droit international privé 242 (1954) and von Overbeck 9 Nederlands
Tijdschrift voor Internationaal Recht, Special Issue October 1962, p. 368
note 31.
T H E
(l57) CRISIS OF C O N F L I C T OF LAWS 247
law, were left to German substantive law, the illegitimate child

would bear the name of the husband of the mother if he chose
to give his name to the child. But this would frustrate the purpose
of section 1706 of the Civil Code, since the illegitimate child
would appear to be the brother or sister of the father, not his
son or daughter. Two changes would be possible. On the one
hand, one could so interpret Spanish law that in a case involving
the name of an illegitimate child, the legitimate children would
bear the name of the father. However, this would, of course,
not make much sense and there is, certainly, no basis for such a
conclusion in the domestic relations law of Spain. On the other
hand, one could so interpret section 1706 of the German Civil
Code that the illegitimate child takes the name not of the Span-
iard, but of a legitimate child of the Spaniard (anyhow, it would
have had the name of the mother from its birth). Then the
purpose of section 1706 would be achieved and the blemish of
illegitimacy safely put out of sight.60
This case also shows that the solution is to be sought at the
point of least resistance, at the point of the gentlest incision. This is true
not only for the choice of the substantive law which comes in for
modification, but also for the prior choice between a solution
according to conflicts law or according to substantive law.
If one adopts a substantive law solution for the adjustment
question one still remains in the substantive law of one state or
the other. But where this approach, as well as the conflicts law
approach, is barred, completely new substantive law must be formed
which is a substantive part of the conflicts law of the forum. To
be sure, these cases occur only rarely, as when contradictory
presumptions exist concerning the time of death of two indi-
viduals and, therefore, simultaneous death will be presumed.
The law of foreigners to which SteindorfF makes reference61 lies
on a completely different level. Here the decision concerning the
applicable law has been made. However, Ín this law foreigners
are treated differently (mostly worse) than citizens. The foreign
element in the case does not constitute a sufficient interest Ín the

6 1 . Supra p . 241 at note 32.
application of foreign law. Rather, conflicts justice (when special
private law rules for foreigners are concerned) or the interests of
power (when special public law rules for foreigners are con-
cerned) demands the application of domestic substantive law. By
such an arrangement the foreign element in the case can become
important on the basis of quite different interests, e.g., in the denial
of an active or passive right of election, in the restriction of
economic activity, in the refusal to permit tort claims against
the domestic state.
The same can hold true for other facts which relate to foreign states.
For example, in the United States (outside of Louisiana), the
running of the limitation period discontinues when the debtor
leaves the state. 62 In Germany, the period for renunciation of an
inheritance is basically set at six weeks. However, if the testator's
last domicile was abroad or if the heir was staying abroad when
the renunciation period commenced, an extension to six months is
prescribed (section 1944 of the Civil Code). If the whereabouts of
a litigant are unknown, in Germany he can be served with process
by means of advertisement. Service of process by advertisement is
also available "when, according to the existing rules, it is impossi-
ble or impractical to serve process on someone abroad" (section
203, subsection 2 of the Code of Civil Procedure). Or, to cite an
example already referred to, 63 it is questionable whether a
sympathy strike in Germany which is designed to aid a main strike
abroad is permissible. 64
All these are cases of "foreign fact situations" 6 5 (in contradis-
tinction to SteindorfT's "international fact situations"), and the
law of foreigners represents only a part of them.
Foreign fact situations are differentiated from the substantive
62. Kegel (supra p. 230 note 10 "Die Grenze . . .") 10, 12.
64. For further examples see Francescakis, La théorie du renvoi et les conflits de
systèmes en droit international privé, 16 (1958); Kegel in 5 Soergel-Siebert,
Bürgerliches Gesetzbuch, 9th ed., p. 529 note i (1961); von Overbeck, Les
règles de droit international matériel, Nederlands Tijdschrift voor Internationaal
Recht 362-363 (1962); Miaja de la Muela, Las normas materiales de Derecho
internacional privado, 16 Revista española de derecho internacional 435 (1963);
Mann (supra p. 199 note 8).
65. Supra p. 199.
T H E
law solution of problems of adjustment as follows: in adjustment,

the rules of substantive law are modified because in the same case
rules of a foreign state are also applied. In foreign fact situations
the rules of substantive law are modified because facts of the case
arise abroad.
To be sure, this distinction could be refined, for in the substan-
tive private law solution of problems of adjustment the rules of
substantive law are only modified if the foreign rules of substan-
tive law contradict those of the home state, that is, cause gaps or
overlaps. In foreign fact situations, also foreign rules of substan-
tive law can belong to the foreign facts, providing they operate
only as facts. This could be the case when they are not applicable.
For example, an inapplicable foreign prohibition of trading with
the enemy may excuse the debtor because of impossibility of
performance. This could also be the case where the foreign rules
are indeed applicable, but do not contradict the domestic rules of
substantive law, that is, do not create gaps or overlaps. This
would hold true, for example, with the rules of foreign nationality
laws which operate to make a person a "foreigner".
The case of the Oberlandesgericht of Düsseldorf which was cited
above 66 furnishes no proof of an "international fact situation"
in SteindorfF's sense of the term, but of a "foreign fact situation" :
despite the applicability of the German Statute on Unfair
Competition, the court left undecided the question whether the
German special rules for bargain sales and clearance sales (and
other German special rules) could be applied. As the court said,
they "are aimed at the special conditions Ín Germany." 67 This
means: the intention of the rules is to protect purchasers in
market conditions such as are found in Germany. The foreign
market could be differently constituted than in Germany, and the
purchaser therefore would need no protection. In such a case the
German special rules are not applied since they are superfluous.
The argument is, if you will, substantive and not spatial (inter-
national).68
66. Supra p. 242 note 37.

67. Loc. cit. (supra p . 242 note 37), p. 544.
68. As to later developments in G e r m a n conflicts rules on unfair competition
25O GERHARD KEGEL f1^0)
The fields of classification, torts and contracts, which have all

been thoroughly examined by Steindorff,69 cannot be discussed
here. Classification is a question of the interpretation of the rules
of conflicts law according to the interests which they are supposed
to serve.70 In my opinion, here is no place for "international fact
situations." In torts, something is surely disturbing in cases of
"multiple connecting factors." Here one can perhaps move to
remedy the situation by limiting the scope of the locus delicti
commissi. In contracts, public encroachments are supposed to be
related to the rules of international administrative law,71 an
approach Steindorff condemns,72
In addition, we are no more able (nor is there any need) to
follow Steindorff along his excursions into history than we were
with Ehrenzweig.73 As far as I can see, the ius commune, to which
Steindorff has assigned a substantive law function, plays no, or in
any event, no significant role in the statutist doctrine since the
16th century.7* Therefore, in my opinion, Savigny's importance
does not lie in a "nationalization" of conflicts law in the sense of
an exclusive reference to the available substantive laws of indivi-
dual states. It must rather be considered as consisting primarily in
the greater differentiation of the rules of conflicts law as opposed
to the basic tripartition of the statutist doctrine.75
It is quite possible that research and case law of the law of
conflict of laws will become more active than previously in the
field of substantive law solutions of problems of adjustment.76 However,
the independent development of substantive law for "international
fact situations" is frustrated: no "ought" results from a mere
"is"; no new substantive law arises from the fact that a fact
see Bundesgerichtshof, 1964. Juristenzeitung 36g a n d comment by Wengler

**• 372-373-
69. Supra p . 240.
70. Supra p. 202 at note 26 (Currie), p. 230 at note 5 (Ehrenzweig).
7 1 . Cf. supra p. 198 at note 2, p . 200 at note 10.
72. p. 205.
73. Supra p . 243-244.; cf. supra p. 226-227.
74. Cf. e.g., H e r r m a n n , Johan Nikolaus Hert und die deutsche Statutenlehre, 76-151,
159-162 (1963).
75. Cf. Kegel, op. cit., 65 a n d Der Gegenstand des internationalen Privatrechts,
Festschrift für Leo R a a p e , 14-16 (1948).
76. Cf. e.g., Schröder, Die Anpassung von Kollisions- und Sachnormen (1961).
(l6l) T H E CRISIS OF C O N F L I C T O F L A W S 25I
situation concerns several states; rather, interests are weighed,

and only interests in the application of a definite law (because of
an interest of order in a "real" decision).
It is, of course, a completely different question whether, in an
effort to achieve legal uniformity in international fact situations,
new substantive law should be created as is done, for example,
by the Hague Conventions on International Sales.77 Conflicts
law, here, becomes partially dispensable, just as it would become
completely dispensable should a complete unification of law take
place.
Steindorff, however, gives us no alternative but to adhere to
the traditional concepts of conflict of laws.
2. Moderate Substantivists
( Wilhelm Wengler, Alfred E. von Overbeck, Adolfo Miaja de la Muela)
While Steindorff concededly wants to form new substantive law

in only a few cases, he nevertheless regards such new formulation
as an "essential element" of conflicts law.1 Other authors view
substantive law in conflicts law with interest and even benevolen-
ce, without seeing in it the dynamite which could provoke a
"crisis" in conflicts law. To this group belong Wengler,2 von
Overbeck,3 Miaja de la Muela4 and the writer.5
They all recognize the change or creation of substantive rules
in several cases. Thus, for example, in adjustment,6 when either of
the applicable substantive laws is modified. Thus, likewise, in
77. "Convention sur la loi uniforme sur la vente internationale des objets
mobiliers corporels" and "Convention sur la loi uniforme sur la formation
des contrats de vente internationale des objets mobiliers corporels", both of
April 1964.
i. Supra p . 238.
2. E.g., Die Belegenheit von Rechten, in: Festschrift der Juristischen Fakultät
der Freien Universität Berlin z u m 4 1 . Deutschen Juristentag 285-352, 350-
3 5 ' ( ' 9 5 5 ) ; °P' c,i-> •ru/ffV1 P- ' 5 4 n o t e 5 2 í I 0 4 Recueil des Cours 273-469,
45»-459 ('961)-
3. Les règles de droit international privé matériel, 9 Nederlands Tijdschrift voor
Internationaal Recht, Special Issue October 196a, 362-379.
4. Las normas materiales de Derecho internacional privado, 16 Revista Española
de Derecho Internacional 425-457 (1963).
5. E.g., op. cit., 34-35, 114.
6. Sceptical von Overbeck, op. cit. (supra note 3) 368-369.
252 GERHARD KEGEL (l^)
adjustment, and in some other cases,7 when new substantive

rules are created in addition to the conflicts law of the forum.
Thus, when foreign law is called on to fill in gaps in the foreign
substantive law which have been caused by the public policy of
the forum. Thus, also, in the law of foreigners and, generally, of
foreign fact situations.
Wengler regards as a special group the cases emphasized by
Martin Wolff* in which someone, because of different substantive
laws, one of which is applicable according to the law of the
forum and the other not, Ís faced with a conflict of duties or of
duties and rights. Wengler solves the conflict primarily by means
of the applicable substantive law, for example, by impossibility
of performance, unreasonable hardship, prevention of double
performance, distribution of risk, and immorality.9 To the extent
that it is not included in the concepts already named, frustration
of contracts would also belong here. By way of exception Wengler
recommends a general clause
"according to which no one in the forum state m a y be judicially compelled
to execute a transaction where the execution has to be m a d e abroad a n d it
is to be expected with certainty that it will be suppressed there". 1 0
In my opinion the first approach is always sufficient: we are

concerned with rules of the applicable substantive law for a
foreign fact situation.
In the interests of legal security Wengler wants to make as
little use as possible of Steindorff's new substantive law for
international fact situations.11 Nevertheless, he considers Stein-
dorff's thesis as
" a n almost long overdue formulation of a program". 1 2
Von Overbeck u discusses most clearly, completely, and with exten-

sive documentation almost everything which has been created
7. Cf. Kegel in 5 Soergel-Siebert {supra p . 248 note 64.) p . 529 no. 81 in

fine.
8. M a r t i n Wolff, Das internationale Privatrecht Deutschlands, 3rd ed., p . 89-91
("954)-
9. 158 Archiv für die civilistische Praxis 545, 548, 550 (ig6o).
10. Ib. 550.
11. Ib. 5 4 9 , 5 5 1 -
12. Ib. 551.
13. Op. cit. {supra p. 251 note 3).
or commented upon up to the present day in the field of substan-

tive rules of conflicts law. In so doing he makes a rather extensive
use of the concept of substantive rules.
In reading his article I was not quite sure if he draws a dis-
tinction between 'foreignfact situations" and the substantive rules of
conflicts law.1* But he tells me, he does. At all events, the distinc-
tion is to be found in the following: in foreign fact situations, the
substantive law of the forum (or of a foreign state) has to be
applied and modified with regard for the foreign facts in the
case; in the substantive rules of conflicts law, more than one
substantive law has to be applied (be it only foreign or foreign
and domestic) and a new rule has to be formed.
Moreover, von Overbeck aptly notes that the difference
between an adjustment of substantive rulesi on the one hand, and the
substantive rules of conflicts law, on the other hand, is small.15
However, the difference should not be forgotten since in the
adjustment of substantive law the relationship with other sub-
stantive rules of the same legal system (because of the "droit
interréel") 16 and the method of legal reasoning in the country
concerned17 are important and can lead to different conclusions.
Furthermore, von Overbeck does not differentiate between a
unification of substantive rules for foreign or international fact
situations and a unification of substantive rules of conflicts law:
" S u r le fond du droit (par opposition à la procédure), contiennent des règles

d e droit international privé matériel les traités généralement rangés dans le
droit uniforme, lorsqu'ils ne s'appliquent q u ' a u x espèces internationales. Il
n e s'agit évidemment pas ¡ci d ' u n e querelle de terminologie. Peu importe
q u e Ton appelle ces règles conventionnelles "droit uniforme" ou " d r o i t in-
ternational privé matériel", mais il est essentiel de se rendre compte que leur
n a t u r e est identique à ce que nous entendons ici par le deuxième terme. Les
règles uniformes applicables aux seuls rapports internationaux doivent a u
contraire être distinguées du véritable droit uniforme qui remplace les lé-
gislations internes existantes. Dans les rapports entre pays ayant adopté d e
14. Cf. ib. 362-363 (Article 170 Code civil; Articles i8 subs. 2 inßne a n d 23
subs. 2 Introductory Act of the G e r m a n Civil Code).
15. Ib. 364-365, 368.
16. T o be sure, von Overbeck does not approve of this concept; see supra
p . 156 note 59.
17. As to the "signs of law" as opposed to the "sources of law", see Kegel,
op. cif., 180.
254 GERHARD KEGEL 0'64)
telles lois uniformes les rapports internes et internationaux sont soumis au
même régime." 18
In case of a unification, differences between special rules for
foreign fact situations, special rules for international fact situ-
ations (in the event that such should exist) and substantive rules
of conflicts law would actually be lost. A difference could remain
only in cases where a unified conflicts law would lead to con-
flicting rules of the applicable substantive laws, and, therefore,
would necessitate the formation of substantive rules of conflicts
law (as could happen in other cases in the conflicts laws of every
state) which, at least because of their origin, would differ from
unified substantive rules which from the very beginning were
created for international fact situations.
In adjustment, von Overbeck prefers the formation of new
substantive rules in the conflicts law of the forum as opposed to
changes of the substantive rules of the applicable laws.19 In
particular he considers a middle road between conflicting
substantive laws.20 One often arrives at such a middle road
solution, for example, when contradictory rules exist concerning
the presumed time of death of two individuals.21 However, such
solutions are of an emergency nature and should, therefore, be
avoided as much as possible.22 Even Solomon was not in earnest
when he made his celebrated middle road suggestion.
Von Overbeck also wants to avoid as much as possible the
substantive rule approach in the conflicts law of individual states,
mainly because it diminishes legal security.23 In my opinion, the
interest of order in "real" decisions24 presents a more effective
argument against this method.
However, he demands substantive rules of conflicts law for
international treaties. The aim of his essay could even be inter-
preted as a desire to disperse the distrust of the substantive rules
18. Op. cit. (supra p. 251 note 3) 372.

19. In his opinion the difference is small: supra p. 253 at note 15.
20. Op. cit. (supra p. 251 note 3) 369.
21. Supra p. 157 and von Overbeck, op. cit. (supra p. 161 note 3) 374-375.
22. Cf. supra p. 245-246 as to the capacity to have rights and duties and as to
the marriage of adulterers.
23. Op. cit. (supra p. 251 note 3) 369-370 at note 35.
24. Supra p. 246 at note 57 with further references.
of conflicts law and to have them recognized in the Hague
Conventions.25 He closes with the words:
"Nous pensons que sur le plan des méthodes à suivre pour arriver à une ré-
glementation internationale vraiment satisfaisante des rapports privés aussi,
les possibilités ne doivent pas être limitées par des catégories reçues et qu'il
convient de rechercher dans chaque matière la combinaison la plus favorable
des procédés du conflit des lois, de celui des règles de droit international privé
matériel, et peut-être d'autres encore." 26
Nothing can be objected to here: every unification of law, if it is

good, constitutes progress, regardless of whether substantive
rules or conflicts rules are unified or whether the unification
extends to all or only to "international" cases. However, I do not
believe that much persuasive power can be achieved for the
unification of substantive rules for international cases (or for a
unification of the substantive rules of conflicts law in von
Overbeck's sense) from the conflicts law of individual states.
Even von Overbeck himself considers the substantive rules in the
conflicts law of individual states an emergency solution.27
Miaja de la Muela also makes a general survey of substantive
rules in conflicts law including foreign fact situations and,
in particular, the law of foreigners.28 He concerns himself
principally with the establishment of such rules on Natural Law
and the Law of Nations (Protection of Human Rights).29 In
contradistinction to his earlier view,30 he is basically of the
opinion that substantive rules of conflicts law are necessary
because the conflicts rules are insufficient and because of the
relationship with public law.31 However, despite their advances,
he regards them as exceptions which govern a relatively small
area.32
25. He also sympathizes, like Steindorff (supra p. 14g note g), with Jitta,
and with other Dutch authors, as well as with Fränkel: op. cit. (supra p. 161
note 3) 365, 370, 374 (note 52).
26. lb. 378-379. As to "la combinaison la plus favorable des procédés" in
modern treaties, e.g., in the Hague Conventions, see Ficker (supra p. 235
note 2) loc. dt,
28. Op. cit. (supra p. 251 note 4).
29. lb. 439-453-
30. Cf. ib. 455.
31. Ib. 453.
32. Ib. 453-457-
256 GERHARD KEGEL (!66)
This much we can subscribe to: substantive rules play only an
insignificant role in the conflicts law of individual states. It
could be otherwise in international treaties. However, a unifi-
cation of substantive rules for "international" cases simply has
less effect than a unification for all cases: the more a unified
substantive law can be created, the more conflicts law will
become unnecessary.
C H A P T E R II
PRIMARY SUBSTANTIVE LAW:

A NEW LAW M E R C H A N T
i. Doctrine (Clive M. Schmitthoff and Others)
fjiHE idea that a unified substantive law is taking over from

conflicts law is supported by the most modern doctrine,
namely, the doctrine of a Mew Law Merchant. This trend is
represented mainly by Clive M. Schmitthoff,1 Philippe Kahn,2
Berthold Goldman3 and Eugen Langen,* in the East Bloc by
Lúslò Réczei* and Aleksander Goldstajn.6'7 The new law of world
trade has also formed the subject oïthree ¿oZ/ojaiabetweenjurists
from East and West, which have been arranged by the Inter-
i. Schmitthoff, Conflict Avoidance in Practice and Theory, 21 L a w & Cont. Prob.

429-462 (1956); International Business Law—A New Law Merchant, 2 C u r r e n t
Law a n d Social Problems (University of Western Ontario) 129-153 (1961)
(not available to me) ; International Trade and Private International Law (here-
after "International Trade"), in: 2 V o m deutschen z u m europäischen R e c h t ,
Festschrift für H a n s Dölle, 257-272 (1963); Das neue Reckt des Welthandels
(hereafter "Das neue Recht"), 28 Rabeis Zeitschrift 47-77 (1964) ; '^ne Law of
International Trade, its Growth, Formulation and Operation (hereafter " TheLaw"),
i n : T h e Sources of the Law of International T r a d e , edited by Schmitthoff,
3-38 (1964).
2. K a h n , La vente commerciale internationale, 1-43, 365-367 (1961).
3. G o l d m a n , Le droit des sociétés internationales, 90 Clunet 320-389, 326-327,
384-389 (1963)-
4. Langen, Studien zum internationalen Wirtschaftsrecht, 1-45 (1963).
5. Réczei, Internationales Privatrecht, 245, 307-308 (i960).
6. Goldstajn, The New Law Merchant, 1961 J . B u s . L. 12-17; Pravo medunarodne
kupopradaje (The Law of International Sale of Goods), 2 d ed., 1 o et seq. ( 1963)
[this book being unavailable to me, the citation is taken from Schmitthoff,
International Trade 271 (note 5 1 a ) ] ; International Conventions and Standard Con-
tracts as Means of Escaping from the Application of Municipal Law I, i n : T h e
Sources of the L a w of International T r a d e , edited by Schmitthoff, 103-117
(1964).
7. For other authors see Schmitthoff, International Trade 269, 271. See also
Schlesinger a n d Gündisch, Allgemeine Rechtsgrundsätze als Sachnormen in Schieds-
gerichtsverfahren, 28 Rabeis Zeitschrift für ausländisches und internationales
Privatrecht 4-46 (1964).
258 GERHARD KEGEL ([68)
national Association of Legal Sciences in Rome in 1958,8 Helsinki

in i960 9 and London in 1962.10
The subject matter of the New Law Merchant is said to com-
prise all legal transactions concerning international trade
(sales as well as banking, transportation, insurance and other
incidental transactions), as well as contracts to construct and
maintain big establishments for developing countries and also
the laws of the East Bloc and commercial transactions between
East and West.11
Source materials include: the ltIncoterms", 1953, and the "Uniform
Customs and Practice for Commercial Documentary Credits", 1962, of
the International Chamber of Commerce; in the East Bloc the
" General Conditions for Delivery", 1958,12 of the Council for Mutual
Economic Aid (Comecon).
Furthermore, reference is made to the numerous General
Conditions of Contract and Standard Forms ofContracts) inter alia those
of the United Nations Economic Commission of Europe (ECE)13
and to international arbitration.
SchmitthofF14 also refers to the numerous international treaties
concerning transportation, bills of exchange and checks, and arbi-
tration,15 and to both of the Hague draft projects (now Con-
ventions of 1964) concerning a Uniform Law of International Sales
of Goods and a Uniform Law on the Formation of Contracts for the
International Sale of Goods.
The development of self-grown law with state toleration is
reported, which is mostly understood as customary law. Schmitt-
8. Aspects juridiques du commerce avec les pays d'économie planifiée, edited by David
(Paris 1961).
9. Some Problems of Non-Performance and Force Majeure in International Contracts
of Sale, edited by Jokola (Helsinki 1961).
10. The Sources of the Law of International Trade, edited by Schmitthoff (Lon-
d o n 1964).
11. Schmitthoff, Das neue Recht 47-48.
i a . English translation by Berman 7 Int. C o m p . L. Q_. 665-690 (1958);
French translation by K a h n , op. cit. (supra p . 257 note 2) 402-422.
13. Schmitthoff, The Law 18-19; cf- Benjamin, The ECE General Conditions of
Sale and Standard Forms of Contract, [1961] J.B.L. 113-131.
14. International Trade 266-268; Das neue Recht 61-63; 1he Law 15-21.
15. See also the surveys by Kegel, op. cit., 25-28, 76-77 and by Jonasco a n d
Nestor in: T h e Sources of the Law of International T r a d e , edited by Schmitt-
hofF, 174-184 (1964).
(l6g) THE CRISIS OF CONFLICT OF LAWS 259
hoff stresses the fact that the new self-grown commercial law
has carefully formulated source materials ("Incoterms" etc.)
whereas the medieval commercial law grew wild.16 He concedes,
however, that so far we have no real customary law but rather
customs,17 and he includes as a second branch of the New Law
Merchant the international treaties on uniform law.18
According to SchmitthofT
"the law of international trade is assuming a new character ; it is shedding its
national limitations and, by acquiescence of the national sovereigns and with
their authority [seil, by treaties?], is transforming itself into an autonomous
legal system, with characteristics essentially similar in all parts of the world." 19
According to Kahn there is a
"société composée par les vendeurs et acheteurs internationaux et qui tend
à se rendre indépendante des Etats", 20 and in which "les droits internationaux
sont complètement négligés".21 "Est-ce à dire que l'indépendance de la so-
ciété internationale des vendeurs et acheteurs est complète? C'est aller trop
loin au moins pour la période actuelle." 22 "Il en résulte une situation qui
n'est pas toujours très claire, mais on peut affirmer que la tendance est dans
le sens d'une autonomie toujours plus grande, plus complète, plus étendue
des différents secteurs du monde international des affaires."23
Schmitthoff states that conflicts law in different countries, as

well as in certain branches, has experienced a very uneven
growth.2* It began in the Middle Ages on the Continent and in
England and in the United States only Ín the i8th and 19th
centuries.25 In the Middle Ages it did not include the law
merchant since the latter had been uniform (exactly like matri-
monial law which, with the exception of marriage settlements,
remained outside the purview of the law of conflict of laws).26
Only in the 18th and 19th centuries did commercial law become
the national law of individual states.27 In the Middle Ages the
16. Das neue Recht 74-75.
17. Ib. 64, 65, 67, 74-75; The Law 16.
19. International Trade 257-258; cf. The Law 33-36 as to self-regulatory con-
tracts.
20. Op. cit. (supra p. 257 note 2), 365.
21. lb. 366.
22. lb. 367.
23. lb. 367.
24. International Trade 258.
25. lb. 258-259.
26. lb. 260, 261 ; Das neue Recht 48-49.
27. International Trade 261 ; Das neue Recht 49-58.
26o GERHARD KEGEL (170)
judgments of fair courts had the same significance as present-day
awards made by arbitration tribunals.28
"The conclusions . . . are that if we consider merely the conflict problems
. . . of the statutists and their successors, we obtain a onesided, incomplete
view . . . There were two areas, each complementary of the other: one in
which conflict problems arose and another in which conflict problems were
avoided by resort to a universally recognized system of law, notably the law
merchant.. .". M
Contemporary international trade law serves primarily to avoid

conflict situations.30 Decisions of ordinary law courts are fewer
today in comparison with the 19th and early 20th centuries.31
Arbitral tribunals have taken over. Therefore, in present-day
law, conflict situations must be avoided by means of a uniform
substantive law (above all, by the New Law Merchant), which
becomes effective through standardization of arbitration clauses,
through the choice of standard contracts, and through agreement
on standard conditions.32 This represents a preventive method 33
which can claim equal rank with the clinical method33 of conflict
solution (by means of the traditional system of conflict of laws)34.
Thus, a concept of conflicts law in the váder sense is produced:
on the one hand it consists of substantive law (international
trade law—conflict avoidance), on the other hand of conflicts
law (mainly for the personal status-conflict solution).33 From the
historical point of view the cycle is thereby closed : conflicts law
in the traditional sense decreases to the extent that the autono-
mous law of international trade increases.36
2. Critique
Contract forms, general trading conditions, commercial customs

and arbitration courts are to be found in domestic as well as
28. International Trade 262 ; Das neue Recht 49.
29. International Trade 263.
30. lb. 265-267, 270; Das neue Recht 75-76.
31. International Trade 258, 270. Figures for Germany in Langen (supra p.
167 note 4) 10.
32. International Trade 269-270.
33. lb. 265.
34. lb. 270-271.
35. lb. 264, 270-271 ; Das neue Recht 75-76.
36. International Trade 270 and cf. 267.
1
foreign trade. One speaks of a "self-created law of economics"
in domestic trade as well.2 It can grow into customary law in both
fields, or at least it can, by express or implied agreement, be
significant for the content or interpretation of legal transactions.3
Even where in domestic trade it has developed into customary
law the domestic state has the right to change it, that is to say,
it exists by virtue of the toleration of the state. Also if and to the
extent that the law of international trade is customary law, it is
within a state its own domestic law in this sense of toleration
and possibility of change.4 This can lead to differences based
on différent judicial decisions on individual questions3 or to
different ways of legal thinking in individual states,6 although
these differences could be small. In such cases conflicts law must
decide the law of what state is to be applied.7 Actually, even
arbitration tribunals make extensive application of conflicts
law,8
This could be important, especially in relation to the countries
of the East Bloc. With the strongly political assertion of Commu-
nist economic law,9 the existence of a comprehensive New
1. For Germany see Capelle, Handelsrecht, gth ed., 83-84 (1963) with biblio-
graphy.
2. Cf. Grossmann-Doerth, Selbstgeschaffenes Recht der Wirtschaft und staatliches
J&cAi, 4.-26 (1933), with a stern critique of German general trading conditions.
3. Cf. Schmitthoff, Das neue Recht 64, 65, 67, 74-75; Luithlen, Einheitliches
Kaufrecht und autonomes Handelsrecht, 27-51 (1956); Eisemann, Die Incoterms
in Handel und Verhehr, 18-19 ( I 9^3) ! Eisemann, Recht und Praxis des Dokumen-
tenakkreditives, 12,14,81-82 (1963); Schinnerer, Zur Neufassung der Einheitlichen
Richtlinien und Gebräuche fur das Dokumentenakkreditiv, 4 Zeitschrift für Rechts-
vergleichung 207-217, 211-212 (1963}; Kreuzer, Das internationale Privat-
recht des Warenkaufs in der deutschen Rechtsprechung, 9 (1964).
4. Schmitthoff makes this perfectly clear, see Das neue Recht 61, The Law 4.
5. Cf., e.g., as to fob-contracts Eisemann, Die Incoterms in Handel und Verkehr,
103-105, 109 (1963).
7. For a good survey of the needs for conflicts law with regard to the "self-
created law of economics" see Kreuzer {supra note 3) 8-11,
8. E.g., Langen {supra p. 257 note 4) 12-15; Schmitthoff, The Law 27-29;
cf. Kreuzer {supra note 3) 11.
9. Cf. as to Soviet Russia, e.g., Becker, Die Rechtsprechung der sowjetischen Aus-
senhandelsschiedskommission (1964); as to the "German Democratic Republic",
e.g., Meschede, Das Vertragssystem der sozialistischen Wirtschaft Mitteldeutsch-
lands, Doctor's thesis, Cologne 1963.
262 GERHARD KEGEL (l 72)
Law Merchant would have to be meticulously proved as to
the East Bloc.10
In the West it will be especially difficult to make a precise
definition of the New Law Merchant. The fragmented materials
which are represented by the numerous contract forms and
general trading conditions are not readily accessible, and the
awards of arbitral tribunals are not usually published and are
often handed down without stating the reasons for the decision. 11
One should keep in mind what Allen has said: " T h e law is public,
if it is anything." 12
This makes well drawn international treaties on uniform law
which according to Schmitthoff are themselves a part of the
New Law Merchant 1 3 all the more desirable. However, they
have no more significance in international commerce than they
have in other areas, such as property, domestic relations and
succession. In particular, they will not be wholly uniformly
interpreted in all of the signatory states.
Perhaps it would be advisable to form a special discipline of
unification of law14 and assign to it the New Law Merchant. So
far as substantive law is unified, no conflicts law is needed. T o
this extent one might, perhaps, say—in a reversal of Ehren-
zweig's statement concerning his basic lex fori15 - "quantitatively,
not analytically, to be sure" conflicts law is, so far as it concerns
the New Law Merchant, an exception.
Although no "crisis" of conflicts law is threatened here but
rather an interesting development of substantive law, it is
nevertheless desirable that the New Law Merchant be brought
into focus and be worked out scientifically. Whether one classifies
it as a conflicts law in a larger sense seems to be a matter of
taste.
10. Langen (supra p. 257 note 4) 27-28 considers it an illusion; cf. also Schmitt-
hoff, The Law 10-12, as to the close connection between the law of international
trade and public law in the East Bloc.
11. Langen ib. 11.
12. C. K. Allen, Law in ike Making, 7th ed., 137 (1964).
13. Supra p. 258.
14. Ficker (supra p. 235 note 2) 50-58 following Vallindas.
( i 73) THE CRISIS OF CONFLICT OF LAWS 263
Conclusion
Members of the "forum faction" such as Currie and Ehrenzweig,

and "substantivists" like Steindorff and Schmitthoff, broaden
our horizons. We have arranged them according to the intensity
of their attack on the traditional system of conflict of laws. We
hope that we have demonstrated that in spite of these attacks
conflicts law remains unshaken. The prevailing opinion, which
sticks to the traditional system of conflict of laws, finds itself, as
it were, in the middle of a target screen. It is surrounded on all
sides by interesting minority views which make life difficult.
But then :
"Crisis is a way of life"!
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(•963)-
D E N O V A . — Le concezioni statunitensi dei conflitti di leggi viste da un continentale
(1964).
EHRENZWEIG. — The Statute of Frauds in the Conflict of Laws; The Basic Rule
of Validation, 59 Gol. L. Rev. 874-881 (1959).
EHRENZWEIG. —Contracts in the Conflict of Laws, 59 Col. L. Rev. 973-1035,
1171-1190 (1959).
EHRENZWEIG. — The Lex Fori—Basic Rule in the Conflict of Laws, 58 Mich. L.
Rev. 637-688 (i960).
EHRENZWEIG. — Choice of Law: Current Doctrine and "True Rules", 49 Cal. L.
Rev. 240-253 (1961).
EHRENZWEIO. — Characterization in the Conflict of Laws: An Unwelcome Addition
to American Doctrine, i n : X X t h Century Comparative a n d Conflicts Law,
Legal Essays in H o n o r of Hassel E. Y n t e m a 395-408 (1961).
EHRENZWEIG. — A Treatise on the Conflict of Laws (1962).
EHRENZWEIG. —Beale's Translation of Bartolas, 12 A m . J . C o m p . L. 384-385
('963)-
GOLDMAN. — Le droit des sociétés internationales, go Clunet 320-389 (1963).
GOLDSTAJN. — The New Law Merchant, 1961 J . Bus. L. 12-17.
GoLDSTAjN. — International Conventions and Standard Contracts as Means of Es-
caping from the Application of Municipal Law I, in: T h e Sources of the Law
of International T r a d e , ed. by Schmitthoff, 103-117 (1964).
H E I N I . — Neuere Strömungen im Amerikanischen Internationalen Privatrecht, 19
Schweizerisches J a h r b u c h für internationales R e c h t 31-70 (1964).
K A H N . — La vente commerciale internationale (1961).
LANGEN. — Studien zum internationalen Wirtschaftsrecht (1963).
M I A J A DE LA M U E L A . — Las normas materiales de derecho internacional privado, 16
Revista española d e derecho internacional 425-457 (1963).
V O N OVERBECK. — Les règles de droit international privé matériel, 9 Nederlands
Tijdschrift voor Internationaal Recht, Special Issue October 1962, 362-
379-
REGZEI. — Internationales Privatrecht (i960).
SCHMITTHOFF. — Conflict Avoidance in Practice and Theory, 21 L a w & Cont.
Prob. 429-462 (1956).
SCHMITTHOFF. — International Business Law—A New Law Merchant, 2 C u r r e n t
Law a n d Social Problems (University of Western Ontario) 129-153 (1961).
SCHMITTHOFF. — International Trade and Private International Law, i n : 2 V o m
deutschen z u m europäischen Recht, Festschrift für H a n s Dölle, 257-272
(>963)-
SCHMITTHOFF. — Das neue Recht des Welthandels, 28 Rabeis Zeitschrift 47-77
(1964).
SCHMITTHOFF. — The Law of International Trade, its Growth, Formulation and
Operation, in: T h e Sources of the Law of International T r a d e , ed. by
Schmitthoff, 3-38 (1964).
STEINDORFF. — Sachnormen im internationalen Privatrecht (1958).
266 GERHARD KEGEL (l 76)
WENGLER. — Die Belegenheit von Rechten, in : Festschrift der Juristischen Fa-
kultät der Freien Universität Berlinzum 41. Deutschen Juristentag 285-352
('955)-
WENGLER.— The General Principles of Private International Law. 1961 III Re-
cuei! des Cours 273-469.
TABLE OF CONTENTS
INTRODUCTION 95*96
Pari I. — Governmental Interests:
Brairterd Currie 97
CHAPTER i . — C a s e s 98-101
CHAPTER n . — T r a d i t i o n a l Approach 102
CHAPTER in. — History 103-109
CHAPTER iv. — Currie's Predecessors iio-m
CHAPTER v. — Policy and Interest 112-113
CHAPTER vi. — Determination of Policy a n d Interest 114-122
CHAPTER VII. — Interest a n d Lack of Interest of the F o r u m State
a n d of O t h e r States 123-127
CHAPTER v m . — A p p l i c a t i o n in Individual Cases 128-162
i. Milliken v. Pratt
2. G r a n t v. McAuliffe
CHAPTER ix. — Basic Conclusions 163-164
CHAPTER x. — Constitutional Law 165-176
1. Full Faith a n d Credit Clause
2. Due Process Clause
3. E q u a l Protection Clause
4. Privileges a n d Immunities Clause
5. Similarities a n d Differences in the Clauses
C H A P T E R XI. — Relationship to the Traditional System of Conflict
of Laws I77-Ï79
CHAPTER XII. — Critique 180-207
1. Governmental Interests
2. Private Interests
3. Points of Contact
4. Limits of Governmental Interests
5. Formal Appearance of Conflicts Law
6. Valid Law
7. Currie's Roots
8. Conclusion
Part II. — Lex Fori as Basic Rule:
Albert A. Ehrenzweig 208-236
CHAPTER 1. — Promotion of the Lex Fori 208-214
CHAPTER n. — Dissolution of Pseudo Problems 215-221
1. Classification
2. Preliminary Question
3. Renvoi
4. Fraud on the Law
5. Proof of Foreign Law
6. Public Policy
7. Unilateral Rules of Choice of Law
CHAPTER iti. — F o r u m Conveniens 222
CHAPTER rv. — Summary by Ehrenzweig 223
CHAPTER v. — Critique 224-236
1. Vagueness a n d Alterations
2. Promotion of the Lex Fori
3. Dissolution of Pseudo Problems
4. Forum Conveniens
5. Conclusion
Part III. — Substantive Law 237-263
CHAPTER 1. — Supplementary Substantive Law 238-256
1. Ernst Steindorff
2. Moderate Substantivists (Wilhelm Wengler, Alfred E. von
Overbeck, Adolfo Miaja d e la Muela)
CHAPTER n. — Primary Substantive Law :
A New L a w M e r c h a n t 257-262
1. Doctrine (Clive M . Schmitthoff a n d Others)
2. Critique
Conclusion 263

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THE CRISIS OF CONFLICT

• p R 0 G R E S S of academic scholarship in a given field may lead to

* I am highly indebted to Mr. Joseph J. Darby, a young attorney from New

3. Cf infra p. 139 at note 24.

GOVERNMENTAL INTERESTS: BRAINERD

nnHE most outspoken member of the "forum faction" is

1. For Currie's own comments on his contribution to the literature on Con-

commenced before the death of the tortfeasor, otherwise a plea

In Kaufman v. American Youth Hostels, 6 App. Div. 2d 223, 177

1. 41 Cal. 2d at 867, 264 P. 2d at 949, 42 A.L.R. 2d at 1168. (Emphasis

4. Erie R. R. v. Tompkins, 304 U . S . 64 (1938).

8. Highway Traffic Act of Province of Ontario (Ont. Rev. Stat. [1960],

i. See Kegel in Festschrift für Leo Raape, pages 22-33 (i94ß)-

OUCH is, by and large, the traditional approach. We find it

i. 8 Savigny, System des heutigen Römischen Rechts, 28, 108 (1849).

quam si res jure certi loci more inconvenient to commerce

4. T e x t and translation are taken from Lorenzen, Selected Articles on the

8. Cf. Huber's "commoda", supra p . 14.

when foreign rights should be recognized and protected by the

y"iURRiE makes only parenthetical mention of comity1 and

Alaska and for that reason the application of California law

io. U . S . Const., amend. X I V , § i.

POLICY AND INTEREST

The substantive lawyer thus becomes more competent than the

In another place he relates:

10. I n reality, t h e concept of "interest" in cases involving foreign states

Most substantive law statutes are couched in general phraseology,

" W h e n the Massachusetts legislature addresses itself to the problem of mar-

To these people, therefore, as a rule their domestic law is to be

16. Supra p . 113 at note 7.

Massachusetts protected commerical transactions, albeit with

30. Cf. p . 86, m , 114.

Currie agrees with this decision with one reservation, namely,

"center of gravity" and "grouping of contacts" come in for more

One could think that in order to fulfill the political task of

62. p . 191, 447; cf. p . 370 ("immoderate and provincial determination"),

But even the most enlightened self-interest never goes so far as to

INTEREST AND LACK OF INTEREST OF THE

two or more foreign states possess an interest. Currie considers

26. lb. 780. Cf. ib. 784-785.

34. 63 Col. L. Rev. 1242-1243 (Ï963). (Notes omitted.)

CURRIE has worked out a scheme for the application of his

It is further assumed that the subsidiary factors in Numbers 1-3

I D D D D All factors domestic (i)

The table is discussed only for cases where Massachusetts is the

Examination of the place of contracting factor in Table i reveals

Case / as a purely internal Massachusetts case, Cases 2, 3 and 6

In Case 2 it makes sense to apply Massachusetts law. Massa-

27. p. 9 1 . As to "officious intermeddling" cf. infra p. 168 at note 7, p. 172

In Cases 5 and g it is "reasonable for Massachusetts to hope

of the seven cases where the contracting is done in a foreign state.

Table 5 contains cases where the foreign state serves as forum:

36. Beginning at the bottom of p . 93 Currie nearly always takes u p M a i n e

Again, both cases which concern only Massachusetts (Case 1)

I Domestic interest advanced without

I Domestic interest advanced without

Currie explains45 that in Table 6 the largest group is VI

I F F F F All Factors Foreign (i)

. In reference to Table i a , Currie notes, inter alia, that Maine's

49. p. 96. (Emphasis added.) Cf. supra p. 135 note 36.

size the residence of the creditor in promoting its own interest in

I. Domestic interest advanced without

I. Domestic interest advanced without de-