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The Americanization of Renvoi Duquesne Law Review Volume 7 Number 2 Article 2 1968 The Americanization of Renvoi David E. Seidelson Follow this and additional works at: https://dsc.duq.edu/dlr Part of the Law Commons Recommended Citation David E. Seidelson, The Americanization of Renvoi, 7 Duq. L. Rev. 201 (1968). Available at: https://dsc.duq.edu/dlr/vol7/iss2/2 This Article is brought to you for free and open access by Duquesne Scholarship Collection. It has been accepted for inclusion in Duquesne Law Review by an authorized editor of Duquesne Scholarship Collection. Duquesne Law Review Volume 7, Number 2, Winter 1968-1969 The Americanization of Renvoi David E. Seidelson* Almost since its first introduction to American jurisprudence, ren- voi has been looked upon as a dirty word by most courts in this country. in most circumstances.' There are probably several reasons for this disdain. First, it is a foreign word, and if there is one thing a judge, confronted with a delicate choice of law problem involving the po- tential application of the law of another jurisdiction, can do without, it's a foreign word. But that problem is fairly easy to resolve. Simply take away its italicization, and renvoi becomes just another word ab- sorbed into the language. A second reason for renvoi's general rejec- tion is a little more difficult to overcome. One suspects that some * Professor of Law, George Washington University. 1. In 1938 Dean Griswold wrote that "Forty years have now passed since the French word 'renvoi' first made its appearance in English legal print." Griswold, Renvoi Re- visited, 51 HARV. L. REv. 1165 (1938). In reviewing the scholarly writing about renvoi, Dean Griswold found that "the legal writers, though they fall just short of being unanimous, seem overwhelmingly, both in their number and in their certainty, in favor of the conclusion that English and American courts do and should 'reject the renvoi.' " Id. at 1170. The writers Dean Griswold found to be opposed to renvoi included Bate, Ab- bot, Lorenzen, Beale and Goodrich. Id. at 1170-72. Their reasons for this opposition went from " 'the Renvoi-theory is inconsistent with' fundamental doctrines of English law," through "its introduction into our law would be most unfortunate," to "A mere state- ment of the operation of the 'renvoi doctrine' should be sufficient to condemn it." Id. at 1170-72. Judge Goodrich, using language more suited to an encyclical than to a discus- sion of legal theory, apparently viewed renvoi as a pernicious threat to the subsistence of conflict of laws jurisprudence: "[I]t seems important to know chiefly to avoid its uncon- scious acceptance." Id. at 1172. Undaunted, Dean Griswold concluded his article by ex- pressing his gratitude to those who had previously examined renvoi, and by suggesting that "there are many situations where satisfactory solutions to puzzling 'problems can be worked out by looking to the 'whole law' of a country designated by a local choice of law rule, and then reaching the same result which would be reached by the courts of that country." Id. at 1208. Thirty years after the publication of Dean Griswold's article, the present author humbly suggests that there may, indeed, be a place for renvoi in resolving choice of law problems confronting state and federal courts in the United States. 201 Duquesne Law Review Vol. 7: 201, 1968-69 judges may not be entirely. clear about how renvoi functions. Pejora- tive characterizations like "international lawn tennis" or "circulus inextrabilis," and misleading phrases like "a double renvoi" or "a renvoi and a half," encountered in law school or in independent reading may have persuaded some judges that renvoi results only in an accretion of cases unresolved because of an endless failure to reach a body of dispositive law,2 or in an arbitrarily determined number of feckless trips from indicative law3 to indicative law as a condition precedent to the application of some dispositive law. It's almost as- tounding that the majority opinion in the Haumschild4 case, a land- mark decision in the utilization of an interest oriented approach to the resolution of a choice of law problem, states and accepts this view of renvoi: - The reason why the authorities on conflict of laws almost uni- versally reject the renvoi doctrine (permitting a court. of the forum. state to apply the conflict of laws principle of a foreign state)• is that it is likely to result in the court pursuing a course equivalent to a never ending circle.5 To overcome that basis for judicial rejection of renvoi, it becomes necessary to determine jus.t what renvoi is and how it operates. Although the author's interest in renvoi is predicated on its use as a potential instrument for the resolution of American choice of law problems, custom and tradition virtually dictate that a discussion of renvoi begin with a set of operative facts laid before a French court. The. classic facts are these: An English national dies intestate domiciled in France, leaving an estate which includes movable personal property. The issue before, the French court is: What law should govern the distribution of that portion of decedent's estate?8 French indicative 2. The phrase "dispositive law" describes "those rules which are used to determine the nature of rights arising from a fact-group, i.e., those which dispose of a claim." Taintor, Foreign Judgment in Rem: Full Faith and Credit v. Res Judicata in Personam, 8 U. Pirr. L. REV. 223, 233, n.58 (1942). It is thought that "dispositive law" is more accurate and useful than such phrases as "municipal law" or "internal law." 3. The phrase "indicative law" is intended to refer to "those rules which indicate the system of dispositive rules which is to be applied." Taintor, supra note 2. It is thought that "indicative law" is simpler and no less descriptive than such phrases as "conflict-of-laws laws" or "conflict-of-laws rules." The author is indebted to the late Dean Taintor for creation of the phrases. "4. Haumschild v. Continental Casualty Co., 7 Wis.2d 130, 95 N.W.2d 814 (1959). 5. Id. at 141-42, 95 N.W.2d at 820. 6. Dean Griswold utilized a similar set of operative facts but put them before an English court, with the explanation that "the example put is taken simply because it is convenient and readily understood; but it should not be inferred that there is anything 'international' or 'foreign'"about the situation. The basic problem- can arise (and does 202 The .Americanization of Renvoi law provides -that. the distribution of a decedent's estate should. be, governed by the law of decedent's nationality, English indicative law says that the distribution of a-decedent's estate should be governed by the law of decedent's domicile. In the first instance, the French court confronted with this- choice of law problem will look to French indi- cative. law, just as any forum faced with a choice of law problem must begin by looking to its own indicative law. The French court finds in. French indicative -law. a reference to English. law. But what English- law, English dispositive -law only, or the total English law, including English indicative law? Renvoi says the reference is to the total English law. Naturally, a court finding a reference to the total law of another state should look first to the indicative law of that other state. When the French court looks to English indicative law, it finds a reference to lex domicilii, the law of France, Were this an old-time Pete Smitl short subject, -this would be the point -where the narrator would ask plaintively, "What's- he going to do now?" The alternatives confronting the French judge are to (1) take the English law's reference to French law as a reference to the dispositive law of France, apply that law and dispose of the issue, or (2) take the reference to French law as a reference to the total law of France, look to French indicative law, find there a reference back to English indi- cative law and mount the merry-go-round. Of course, the French judge will select the first alternative and thus resolve the problem. That selection results not merely as-a means of avoiding the "never ending circle" nor as a device for applying the. comfortably familiar lex fori. Why the French judge selects the.first alternative goes to the essence of renvoi. A preliminary "why.' question must be why French indicative law referred .the court to the lawa of decedent's nationality. Presumably, that indicative law exists, because of the forum's- conscious determina- tion that the sta-te-of nationality has the -most .intimate concern with and interest in. the. distribution of a decedent's. estate. That concern and interest. comprise the: raison -d'etre:-.for the indicative -law, More- over, to . forum, engaging -inrenvoi ;inr such a c~ase, the concern and. interest of the state of nationality are so significant that .the forum, after finding the initial reference in its own. indicative law to the law perhaps oftener than is suspected) just as well between states of the United States." Griswold, supra note 1, at 1166, n.5. Cf. In re Annesley, Court of Appeal [1926] 1 Ch. 692.- The present author: eleted to lay the facts 'before a' French court tb achieve a forum presumably willing to play renvoi in limine. 203. Duquesne Law Review Vol. 7: 201, 1968-69 of the state of nationality, determines to dispose of the issue as it would be resolved by a court sitting in the state of nationality.
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