Thursday, October 26, 2006
Research Canons: Conflict of Laws
Our next subject matter for the research canons project is Conflict of Laws. (See here for a discussion of the research canons project.) Please comment on the books and articles that are essential to a new academic in the field.
This is our (tentative) last installment. If we've missed a particular category, let us know -- we'll try to correct the omission tomorrow.
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First, I have been waiting anxiously for a discussion of comparative law canons. I've spoken to many people who are intersted in the basics but have found little guidance. Did I miss something?
Second, on Conflicts, the Scoles, Hay, Borchers & Symeonides hornbook (by West) is really excellent. It discusses the big historical sources and offers a fantasic view of modern theory and practice. While I hope not to be flamed by people who believe "student study aids" like hornbooks are not a proper subject of your canons project, I really think this one hornbook is worth mentioning, as it leads new people in the area to the original sources they really should read.
Posted by: Jason Kilborn | Oct 26, 2006 9:39:24 AM
Hoping they don't mind, I'm pasting below most of my recent private correspondence to Matt and Dan on this very subject:
Since you brought it up, I'll more or less repeat what I said in the comments to the original announcement of the project:
Still, no 'comparative law'? Comparative law and international law overlap in practice, but the research canons entry for international law did not address comparative law, strictly speaking. Other legal traditions of the world are important (even if few of the people who read PrawfsBlawg are little more than dimly aware of them): be they those found, for instance, in India or China, or in the Islamic world. No international lawyer working in Egypt or with Egyptian clients can altogether ignore (Islamice) fiqh. No significant differences between Romanistic, Germanic, Anglo-American, and Nordic Legal Families (not captured in 'legal history;' see, for example, Konrad Zweigert and Hein Kotz (Tony Weir, tr.), Introduction to Comparative Law. Oxford, UK: Clarendon Press, 3rd ed., 1998)? Religious law not worth our attention (see, for example, Werner Menski, Comparative Law in a Global Context: The Legal Systems of Asia and Africa. Cambridge, UK: Cambridge University Press, 2nd ed., 2006)? This leaves us open to the reasonable criticism that we are rather parochial and provincial, still unduly local in the era of globalization. In short, this is a glaring, serious, and debilitating omission (I trust you will not take this as an ad hominem critique). Of course this comment should be seen in the light of my abiding appreciation of the 'research canons' project in general (if only because it prompts us to think about just what constitutes 'canon,' how flexible in fact canonicity is, and so forth). I think its value is not just to students and young law professors but for anybody with an interest in the law, experts and non-experts alike, allowing even hidebound specialists to get a sense of what exists beyond their area of expertise. Indeed, it also makes an important contribution to genuine efforts toward 'interdisciplinarity' and 'transdisciplinarity.' So I suppose I'm suggesting we think a bit beyond the original animating rationale of the project itself (a 'spillover effect'), even if we should want to maintain that that remains its primary motivation or justification.
Perhaps I should have made it explicit that 'conflict of laws' or private international law is not the same thing as comparative law, the latter being more pluralistic and free of several troubling assumptions basic to the former. William Twining has spoken to the differences and one might have a look at the inaugural volume of The Journal of Comparative Law (2006).
Posted by: Patrick S. O'Donnell | Oct 26, 2006 9:53:22 AM
If anyone has been waiting anxiously, by all means I'll add a canon. I've been trying to strike a balance between covering everything and having too much. I hope we haven't been parochial and provincial.
Posted by: Matt Bodie | Oct 26, 2006 10:19:44 AM
Of course not: it was just by way of rhetorical provocation!
Posted by: Patrick S. O'Donnell | Oct 26, 2006 10:49:41 AM
Here are some basic sources:
William F. Baxter, Choice of Law and the Federal System,16 Stan. L. Rev. 1 (1963)
Joseph Beale, A Treatise on the Conflict of Laws (1935)
Lea Brilmayer, Conflict of Laws (1995)
David F. Cavers, A Critique of the Choice-of-Law Problem, 47 Harv. L. Rev. 173 (1933)
Walter W. Cook, The Logical and Legal Bases of the Conflict of Laws, 33 Yale L.J. 457 (1924)
Brainerd Currie, Selected Essays on the Conflict of Laws (1963)
Perry Dane, Vested Rights, 'Vestedness,' and Choice of Law, 96 Yale L.J. 1191 (1987)
Friedrich K. Juenger, Choice of Law and Multistate Justice (1993)
Herma Hill Kay, Theory into Practice: Choice of Law in the Courts, 34 Mercer L. Rev. 521 (1983)
Harold L. Korn, The Choice of Law Revolution: A Critique, 83 Colum. L. Rev. 772 (1983)
Larry Kramer, Rethinking Choice of Law, 90 Colum. L. Rev. 277 (1990)
Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249 (1992)
Robert Leflar, American Conflicts Law (1977)
Kermit Roosevelt III, The Myth of Choice of Law: Rethinking Conflicts, 97 Mich. L. Rev. 2448 (1999)
Gene R. Shreve, Choice of Law and the Forgiving Constitution, 71 Ind. L.J. 271 (1996)
Louise Weinberg, Choice of Law and Minimal Scrutiny, 49 U. Chi. L. Rev. 440 (1982)
You can find additional sources in the bibliography to my book Edwin Scott Fruehwald, Choice of Law for American Courts (2001)
Posted by: Scott Fruehwald | Oct 26, 2006 12:02:50 PM
Perhaps FEW of us have been waiting anxiously for a comparative law canon, but lots of schools have a course on comparative law, and I suspect new folks teaching the course (myself included) would love to have the input of people like Patrick O'Donnell, who has clearly done some serious homework in the area. If you would rather not include a comparative law canon, perhaps Patrick would be kind enough to offer his view of a canon in these comments (though I certainly don't mean to hijack this wonderful blog or its comments for my own purposes). His bibliography of international law sources was breathtaking.
Thanks for the series, in any event, and for considering the addition of one more canon (?).
Posted by: Jason Kilborn | Oct 26, 2006 5:22:32 PM
Sorry if this wasn't clear, but we'll have a comparative law canons tomorrow. Any other suggestions?
Posted by: Matt Bodie | Oct 26, 2006 5:53:02 PM
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