DOCSLIB.ORG

Conflict of Norms in European Union Law and the Legal

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Conflict of Norms in European Union Law and the Legal CONFLICT OF NORMS IN EUROPEAN UNION LAW AND THE LEGAL REASONING OF THE EUROPEAN COURT OF JUSTICE A thesis submitted for the degree of Doctor of Philosophy by Gerard Martin Conway School of Law Brunel University December 2010 ii Abstract: This thesis examines the topic of conflict of norms in European Union (EU) law and the legal reasoning of the European Court of Justice (ECJ), arguing that the framework of conflict of norms provides conceptual insight into justification and the role of value choices in legal reasoning. After examining the theory of conflict of norms, which seems to have been relatively under-studied generally and especially in EU law, it examines three particular aspects of norm conflict resolution in the legal reasoning of the ECJ and EU law: conflict of interpretative norms, especially the opposition between conserving and innovative interpretation; conflicts of human rights norms, looking in particular at the idea of a hierarchy of rights and of specificationism in the articulation of rights; and conflicts of competence norms. It concludes that the scope exists for a fuller justification of the choice of norms in the legal reasoning of the ECJ and generally in EU law and offers a perspective on how the values articulated by the EU suggest particular approaches to norm conflict resolution by the ECJ in its decision-making in these fields, in particular, a greater resort to lex specialis and originalist or historical interpretation, in contrast to its current method. iii Summary Table of Contents Notes and Acknowledgments………………………………………………………… ......x Table of Abbreviations……………………………………………………………… ...... xii Table of Treaties and Legislation……………………………………………………... xvi Table of Cases………………………………………………………………………… ... xix Chapter 1 – Values and Conflicts of Norms in EU Law and the Legal Reasoning of the European Court of Justice – Introduction and Framework……… ................................................................................................... 1 Chapter 2 –Reasons for Norm Conflict in EU Law ............................................... 14 Chapter 3 – Conflicts of Norms in Legal Reasoning and Values in EU Law ………………………………………………………………………………………………66 Chapter 4 – Conflicts of Interpretative Norms in the Legal Reasoning of the ECJ …………………………………………………………………………………………… .. 127 Chapter 5 – Conflicts of Fundamental Values in EU Law and the Legal Reasoning of the ECJ ……………………………………………………………………………… .. 207 Chapter 6 – Conflicts of Competence Norms in EU Law and the Legal Reasoning of the ECJ ................................................................................................... ………267 Chapter 7 – Conclusion………………………………………………………………... 329 Appendix I – Translation……………………………………………………………….340 Bibliography………………………………………………………………………… ...... 351 iv Detailed Table of Contents Notes and Acknowledgments……………………………………………………… ......... x Table of Abbreviations……………………………………………………………… ...... xii Table of Treaties and Legal Instruments………………………………… .. ……… ....xv Table of Cases………………………………………………………………………… ..xviii Chapter 1 – Values and Conflicts of Norms in EU Law and the Legal Reasoning of the ECJ 1.1 Introduction: Scope and Subject Matter …………………..1 1.2 Summaries of Content of Chapters..........………………...10 Chapter 2 –Reasons for Norm Conflict in EU Law 2.1 Reasons for Norm Conflict Inherent in Any Legal System…......................................................................…......14 2.1.1 The Temporal Element……………………...………...14 2.1.2 Vagueness and Generality……………………...……..15 2.1.3 Complexity of Subject Matter………………...............16 2.1.4 Value Pluralism……………………………..…...........16 2.1.5 Discontinuity in the Identity of the Law-Maker….......18 2.2 Reasons for Norm Conflict particular to EU Law…….........20 2.2.1 Linguistic Diversity.......................................................20 2.2.2 The ‘Supranational’ Doctrines of Direct Effect and Supremacy and the Logic of the ‘Integration Imperative’ relative to Traditional Public International Law...........................................…….…………21 2.2.3 The Continuing Question of EU Competence in the Context of Enduring Member State Sovereignty..........25 2.2.4 Pluralistic Membership of the EU Legislature..…….....29 v 2.2.5 The Sources of EU Law…....................……………….30 2.2.6 The Relationship of EU Law with the Law of the Member States………………...………………….................35 2.2.7 The Interaction of EU Law with the Legal System of the Council of Europe…….................................................43 2.3. General Methodology……………….………………….............44 2.4 The General Theoretical Context of Norm Conflict In Contemporary Anglo-American Legal Theory….…………..…...51 2.4.1 Introduction………...............................................……51 2.4.2 Dworkin on Coherence..................................................51 2.4.3 Raz on Coherence..........................................................56 2.4.4 General Remarks on Coherence, Dworkin, and Raz.....60 2.4.5 Structuralist and Systems Accounts of Law…....……..61 2.4.6 Concluding Remarks to the Section and Chapter…......65 Chapter 3 – Conflict of Norms in Legal Reasoning and Values in EU Law Law 3.1 Introduction……………………………………..........................66 3.2. Rules v. Principles in Legal Reasoning……….….....................68 3.3 Values and the EU Legal System.................................................72 3.3.1 Normativity in Law.......................................................72 3.3.2 Normativity in EU Law.................................................76 3.3.2.1 Introduction.....................................................76 3.3.2.2 Human Dignity...............................................77 3.3.2.3 Integration and Solidarity...............................79 3.3.2.4 Democracy and the Rule of Law....................80 3.3.2.5 Human Rights and Equality............................91 3.3.2.6 The Principles of Conferral, Subsidiarity.......94 3.3.2.7 Summary of Values in the Treaties................95 3.4. Conceptual Clarity and Legal Concepts: Hohfeld’s Analysis.....96 3.5 Rules of Norm Conflict in Legal Reasoning……......………....103 3.5.1 The Definition of Norm Conflict.............…………....103 3.5.2 A Typology of Norm Conflict……………......…...…109 vi 3.5.2.1 Types of Substantive Legal Norms...............109 3.5.2.2 Types of Interpretative Legal Norms....…....113 3.6 Norm Conflict Rules....................……………………….…......116 3.6.1 Lex Superior .................................................................118 3.6.2 Lex Specialis ................................................................120 3.6.3 Lex Posterior ...............................................................123 3.7 Concluding Comments...............................................................124 Chapter 4 – Conflicts of Interpretative Norms in the Legal Reasoning of the European Court of Justice 4.1 Introduction………………………………….............................127 4.2 The Debate on Conserving versus Innovative Interpretation and its Underlying Values ………....................................................135 4.3 Specific Justification of Subjective Originalist Interpretation....151 4.3.1 Legal Texts and Intention……………………............151 4.3.2 Legal Texts and Collective or Corporate Intention.............................................................. 159 4.4 Overview of Practice of the Luxembourg and Strasbourg Courts…............................................................................................165 4.5 Case Study – Caselaw Doctrine on Non-Discriminatory Obstacles..….....................................................................................170 4.6 An Overview of Norm Conflict in Caselaw and Legal Reasoning of the ECJ........................................................................177 4.6.1 Introduction.....................……….................................177 4.6.2 Some General Comments on Conflict of Interpretative Norms in ECJ Caselaw...................................180 4.6.3 Explicit Articulation of Substantive Norm Conflict by the ECJ.............................................................................183 4.6.4 Norm Conflict and ‘Constitutionalising’ the Community/Union........... …………………………....................…187 4.6.5 Free Movement Caselaw ……...……......…...............196 4.6.6 Linguistic Conflict of Norms.......................................199 vii 4.7 Conclusion……………………………...………………….…..204 Chapter 5 – Conflicts of Fundamental Values in EU Law and the Legal Reasoning of the ECJ 5.1 Introduction…………………………………………………….207 5.2 Reprising the Coppel-O’Neill v. Weiler-Lockhart Debate.........217 5.3 Hierarchy and Specification……....……………………......…..247 5.4 Conclusion..................................................................................263 Chapter 6 – Conflicts of Competence Norms in EU Law and the Legal Reasoning of the ECJ 6.1. Introduction…............………………………………………………....267 6.2 Competence as a Legal Concept…............…………………………….281 6.3 Conflicts of Competence Norms in the EU and the Principle of Subsidiarity...................……............……………………..289 6.4 The Competence of the Member States Distinguished from the Competence of the EU Institutions…….…..........…………….....292 6.5 The Impact of the Lisbon Treaty………………………............………295 6.6 Case Studies: ………………………......................................................298 6.6.1 An Example from Social Europe.............................................298 6.6.2 External Relations....................................................................304
Load more

Recommended publications
  • Conflict of Laws-Application of Full Faith and Credit Clause to State Court's Finding in Support of Its Jurisdiction
    Washington and Lee Law Review Volume 6 | Issue 1 Article 6 Spring 3-1-1949 Conflict Of Laws-Application Of Full Faith And Credit Clause To State Court'S Finding In Support Of Its Jurisdiction Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Conflict of Laws Commons Recommended Citation Conflict Of Laws-Application Of Full Faith And Credit Clause To State Court'S Finding In Support Of Its Jurisdiction, 6 Wash. & Lee L. Rev. 61 (1949), https://scholarlycommons.law.wlu.edu/wlulr/vol6/ iss1/6 This Comment is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. 1949 CASE COMMENTS 55 CASE COMMENTS BANKRUPTCY-DEFINITION OF "FARUER" FOR PURPOSES OF RELIEF THROUGH AGRICULTURAL COMPOSITIONS AND EXTENSIONS. [Federal] The availability of relief under the agricultural compositions and extensions phases of federal bankruptcy legislation depends on the pe- titioner's ability to bring himself within the definition of a farmer as set out in Section 75 (r) of the Bankruptcy Act.1 Prior to 1933, the Bankruptcy Act reference to farmers was merely to those "engaged chiefly in fanning or the tillage of the soil."2 However, the special legis- lation of 1933 adopted a definition in the alternative, providing that persons who
    [Show full text]
  • Conflict of Laws: Contracts and Other Obligations F
    Louisiana Law Review Volume 35 | Number 1 Fall 1974 Conflict of Laws: Contracts and Other Obligations F. Michael Adkins Repository Citation F. Michael Adkins, Conflict of Laws: Contracts and Other Obligations, 35 La. L. Rev. (1974) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol35/iss1/8 This Comment is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. COMMENTS CONFLICT OF LAWS: CONTRACTS AND OTHER OBLIGATIONS In ordering relations between parties to a contract, the courts have developed standards for choosing between conflicting laws of two or more jurisdictions in at least four areas of contract law: capac- ity of the parties to contract, availability and nature of the remedy, formal validity, and substantive validity.' Of the fascicle of conflicts rules applicable to such a problem, those providing the substantive law to determine the validity of the alleged contract have been dealt 1. Louisiana jurisprudence peculiarly splits these considerations of conflicts prob- lems sounding in contract into separate categories. Capacity: The law of the domicile of the parties in question controls the capacity to contract. See Pilcher v. Paulk, 228 So. 2d 663 (La. App. 3d Cir. 1969) (minors); Sun Oil Co. v. Guidry, 99 So. 2d 424 (La. App. 1st Cir. 1957) (minors). Louisiana courts have regularly held that the law of the domicile of the parties governs the capacity of a party to contract with his or her spouse for a regime other than the community of gains, or for a settlement or division of property owned in common.
    [Show full text]
  • Resolving International Conflict of Laws by Federal and State Law, 2 Pace Y.B
    Pace International Law Review Volume 2 Issue 1 Article 3 September 1990 Resolving International Conflict of Laws yb Federal and State Law James A.R. Nafziger Follow this and additional works at: https://digitalcommons.pace.edu/pilr Recommended Citation James A.R. Nafziger, Resolving International Conflict of Laws by Federal and State Law, 2 Pace Y.B. Int'l L. 67 (1990) Available at: https://digitalcommons.pace.edu/pilr/vol2/iss1/3 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace International Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. RESOLVING INTERNATIONAL CONFLICT OF LAWS BY FEDERAL AND STATE LAW James A.R. Nafzigert THE ISSUE: A PRELIMINARY ANALYSIS A recurring problem in a federal system is to determine the applicability of state law in international cases before civil courts. In the United States this problem arises in both state courts and federal courts considering cases under diversity juris- diction. From one viewpoint, rules applicable in domestic cases ought generally to apply in international cases as well. Thus, state law should apply in international cases when it would ordi- narily apply in domestic cases. An important corollary is that federal common law should not displace state law except when federal interests are unusually compelling. This is generally the rule today. A contending argument, however, favors a more fully federalized choice of law to replace state law in both federal and state courts.
    [Show full text]
  • The Logical and Legal Bases of the Conflict of Laws
    YALE LAW JOURNAL Vol. XXXIII MARCH, 1924 No. 5 THE LOGICAL AND LEGAL BASES OF THE CONFLICT OF LAWS WALTER WHELER Cook Time was when the students of the physical sciences sought to judge the truth or correctness of any particular statement about a particular physical thing--plant, heavenly body, or case of chemical change-by assuming that they had already in hand "a general truth with which to compare the particular empirical occurrence." The assumption was, as John Dewey, from whom I am quoting, puts it, that the human "mind was already in possession of fixed truths, universal principles, pre- ordained axioms" and that "only by their means could contingent, vary- ing particular events be truly known."' So long as this assumption maintained its hold upon men's minds no real advance in physical science was possible. Modern science really began only when "men trusted themselves to embarking upon the uncertain sea of events and were willing to be instructed by changes in the concrete. Then ante- cedent principles were tentatively employed as methods for conducting observations and experiments, and for organizing special facts: as hypotheses. ' 2 In the field of the physical sciences, therefore, the deduc- tive method of ascertaining the truth about nature has given way to what is called-perhaps with not entire accuracy-the inductive3 method of modern science, in which the so-called "laws of nature" are reached by collecting data, i.e. by observing concrete phenomena, and then forming, by a process of "trial and error," generalizations which are merely useful tools by means of which we describe in mental shorthand 'John Dewey, Human Nature and Conduct (1922) 242.
    [Show full text]
  • Jurisdiction and Governing Law Rules in the European Union
    Jurisdiction and Governing Law Rules in the European Union Contents Introduction 1 Recast Brussels Regulation (EU 1215/2012) 2 Rome I Regulation (EC 593/2008) 4 Rome II Regulation (EC 864/2007) 6 Main exceptions 8 016 2 Further information If you would like further information on any aspect of jurisdiction and governing law rules in the European Union, please contact a person mentioned below or the person with whom you usually deal. Contact Ivan Shiu, Partner T +44 (0)20 7296 5131 [email protected] Giles Hutt, Professional Support Lawyer T +44 (0)20 7296 5483 [email protected] This note is written as a general guide only. It should not be relied upon as a substitute for specific legal advice. Jurisdiction and Governing Law Rules in the European Union January 2016 1 Introduction For any commercial organisation, ensuring that a how the rules work, and giving details of key provisions. dispute is tried in a forum that is both convenient and To help practitioners spot similarities and differences business-friendly is often critical: it can greatly increase between the Regulations, which dovetail with each the chance of achieving a successful outcome, and other, rules are grouped by colour according to their doing so in a reasonable time frame and at reasonable subject matter. So, for example, rules governing the expense. The law governing legal obligations is also scope of a Regulation appear in dark green boxes; crucial, of course. Unfortunately it is not always those dealing with party choice appear in blue boxes; straightforward to work out which court or courts are and 'escape' clauses (a prominent feature of the Rome free (or obliged) to try a case, and what law they will Regulations) are shown in white boxes.
    [Show full text]
  • Conflict of Laws
    SMU Law Review Volume 60 Issue 3 Article 8 2007 Conflict of Laws James P. George Texas A&M University School of Law, [email protected] Anna K. Teller Follow this and additional works at: https://scholar.smu.edu/smulr Part of the Law Commons Recommended Citation James P. George & Anna K. Teller, Conflict of Laws, 60 SMU L. REV. 817 (2007) https://scholar.smu.edu/smulr/vol60/iss3/8 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. CONFLICT OF LAWS James P. George* Anna K. Teller** TABLE OF CONTENTS I. CONFLICTS AT LARGE IN TEXAS-AN OV ERV IEW .............................................. 818 II. CHOICE OF LAW ....................................... 821 A. STATUTORY CHOICE-OF-LAW RULES ................... 822 B. CHOICE-OF-LAW CLAUSES IN CONTRACTS ............. 823 C. THE MOST SIGNIFICANT RELATIONSHIP TEST .......... 826 1. Contract Cases .................................... 826 2. Tort Cases ......................................... 827 3. Class Action Certifications......................... 829 D. OTHER CHOICE-OF-LAW ISSUES ........................ 830 1. Legislative Jurisdiction and Other Constitutional Limits on State Choice-of-law Rules ............... 830 2. Comity Recognizing Neighboring State's Sovereign Im m unity .......................................... 832 3. False Conflicts ..................................... 832 4. Proof of Foreign Law ............................. 835 5. Use of the Forum's ProceduralRules .............. 836 6. Indemnitor's Intervention on Appeal to Raise Choice-of-law Issue Omitted by Insured............ 836 7. Choice of law and In Rem Jurisdiction............. 837 TATE and national laws collide when foreign factors appear in a lawsuit.
    [Show full text]
  • Regulation of Dispute Resolution in the United States of America: from the Formal to the Informal to the ‘Semi-Formal’
    Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2013 Regulation of Dispute Resolution in the United States of America: From the Formal to the Informal to the ‘Semi-formal’ Carrie Menkel-Meadow Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1291 http://ssrn.com/abstract=2337199 Carrie Menkel-Meadow, Regulation of Dispute Resolution in the United States of America: From the Formal to the Informal to the ‘Semi-formal’ in REGULATING DISPUTE RESOLUTION: ADR AND ACCESS TO JUSTICE AT THE CROSSROADS: (Felix Steffek, Hannes Unberath, Hazel Genn, Reinhard Greger & Carrie Menkel-Meadow, eds., Oxford, U.K.: Hart 2013) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Civil Procedure Commons, Conflict of Laws Commons, and the Dispute Resolution and Arbitration Commons Regulation of Dispute Resolution in the United States of America Carrie Menkel-Meadow 15 Regulation of Dispute Resolution in the United States of America: From the Formal to the Informal to the ‘Semi-formal’ CARRIE MENKEL-MEADOW I. Introduction: History and Characteristics of Dispute Resolution in the US: Formalism, Informalism and ‘Semi-formalism’ with and without Regulation II. The Characteristics of ‘Formal’ Justice III. Informal Justice in the US IV. ‘Semi-formal’ Justice in the US V. What Little We Know about Dispute Resolution Use and Regulation VI. Assessing Justice in Plural Procedural Practices I. INTRODUCTION: HISTORY AND CHARACTERISTICS OF DISPUTE RESOLUTION IN THE US: FORMALISM, INFORMALISM AND ‘SEMI-FORMALISM’ WITH AND WITHOUT REGULATION HE STORY OF ADR in the US is one of ‘co-optation’ of what was to be a serious challenge to formalistic and legalistic approaches to legal and social problem solving and is now highly institutionalised by its more formal use T 1 in courts.
    [Show full text]
  • 'Giustizia Consensuale': a New Law Journal On
    ‘Giustizia consensuale’: A New Law Journal on Consensual Justice in Its Many Nuances and Forms In recent years, the debate surrounding consensual justice and party autonomy has received increasing attention in the national and international arenas and has raised a broad array of questions. In the pressing need to observe this phenomenon from different perspectives lies the rationale behind a newly founded biannual journal, Giustizia consensuale. The journal, founded and directed by Prof. Silvana Dalla Bontà and Prof. Paola Lucarelli, features contributions in both Italian and English. By adopting an interdisciplinary and holistic approach, the journal aims to investigate the meaning of consensual justice, its relation with judicial justice, and the potential for integrating – rather than contrasting – these two forms of justice. This investigation is premised on the relationship between justice and private autonomy as well as forms of integrative, participatory, and restorative justice. By being particularly suited for meeting the needs of an increasingly complicated and multi-faceted society, these forms of justice ultimately promote social cohesion and reconciliation. Against this backdrop,Giustizia consensuale strives to make a valid contribution to the discourse on conflict and the meaning of justice by fostering an interdisciplinary dialogue which encompasses both theory and practice. The first issue of Giustizia Consensuale has just been released and it features: Silvana Dalla Bontà (University of Trento), Giustizia consensuale (‘Consensual Justice – A Foreword’; in Italian) Paola Lucarelli (University of Firenze), Mediazione dei conflitti: una spinta generosa verso il cambiamento (Conflict Mediation: A Push for Cultural Change; in Italian) From the Italian Recovery and Resilience Plan to the guidelines of the Italian Ministry of Justice, the urgency of a reform to strengthen out-of-court dispute resolution procedures clearly emerges.
    [Show full text]
  • Legal Realism and the Conflict of Laws Kermit Roosevelt III University of Pennsylvania Law School, [email protected]
    University of Pennsylvania Law School Penn Law: Legal Scholarship Repository Faculty Scholarship 2015 Legal Realism and the Conflict of Laws Kermit Roosevelt III University of Pennsylvania Law School, [email protected] Follow this and additional works at: http://scholarship.law.upenn.edu/faculty_scholarship Part of the Conflict of Laws Commons, Judges Commons, Legal History Commons, and the Public Law and Legal Theory Commons Recommended Citation Roosevelt, Kermit III, "Legal Realism and the Conflict of Laws" (2015). Faculty Scholarship. Paper 1582. http://scholarship.law.upenn.edu/faculty_scholarship/1582 This Response or Comment is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. ARTICLE REALISM AND REVOLUTION IN CONFLICT OF LAWS: IN WITH A BANG AND OUT WITH A WHIMPER CELIA WASSERSTEIN FASSBERG† Conflict of laws scholarship in the United States in the middle half of the twentieth century produced what is commonly referred to as a “revolution.” Quite apart from its revolutionary content, this scholarship is extraordinary in three principal ways. First, it is extraordinary for its volume, its prominence and the eminence of many of those producing it. Following Joseph Story’s pioneering work in the nineteenth century1 and well into the middle of the twentieth century, some of the best and brightest legal minds in some of the leading American law schools were devoting their not inconsiderable energies to this field, publishing in the best of the American law journals and spawning a vast literature—Joseph Beale2 and Erwin Griswold,3 Wesley † Judge Harry M.
    [Show full text]
  • Conflicts Basics: CHOICE of LAW and MULTISTATE JUSTICE by Friedrich K. Juenger
    Catholic University Law Review Volume 44 Issue 2 Winter 1995 Article 4 1995 Back to Conflicts Basics: CHOICE OF LAW AND MULTISTATE JUSTICE by Friedrich K. Juenger Stanley E. Cox Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Stanley E. Cox, Back to Conflicts Basics: CHOICE OF LAW AND MULTISTATE JUSTICE by Friedrich K. Juenger, 44 Cath. U. L. Rev. 525 (1995). Available at: https://scholarship.law.edu/lawreview/vol44/iss2/4 This Book Review is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. BOOK REVIEW Back to Conflicts Basics: CHOICE OF LAW AND MULTISTATE JUSTICE by Friedrich K. Juenger Reviewed by Stanley E. Cox* Chief Justice Stone is reported to have said that the study of conflict of laws is a good substitute for a more formal course on legal jurisprudence.' Conflicts theories, among other things, at their heart address issues of how "true" laws are, how much respect governments should give to other sovereigns or to private agreements, and what role the judiciary should play as lawmaker or law interpreter. Discussions about how to choose law are in essence discussions about what constitutes justice. A good book on conflicts should provoke foundational thinking about such issues and other basics of the conflicts discipline. Choice of Law and Multistate Justice2 does. I. A QUICK OVERVIEW Professor Juenger's thesis is that the only sensible choice-of-law theory is to apply the best substantive law to interstate and international dis- putes.3 Whether one agrees or disagrees with this thesis, it is refreshing to read a conflicts monograph that argues consistently at the foundational level and pursues its thesis from introduction to conclusion.
    [Show full text]
  • The Status of Children in the Conflict of Laws
    THE STATUS OF CHILDREN IN THE CONFLICT OF LAWS GEORGE WILXRED STUMBER(G* T IS frequently assumed that principles of conflict of laws, at least as they are understood in the United States, make local domicil a neces- sary jurisdictional prerequisite to the creation by a state of any of those conditions of person which are customarily grouped together under the broad descriptive term "status."' Consistent resort to this assump- tion for the solution of problems involving state power with respect to the status of children would require that when legitimacy2 is in issue, the cir- cumstances be such as would legitimize under the law of the domicil at the time the circumstances occur, and that in the case of adoption3 or of cus- tody, 4 the judicial proceedings confixning the adoption or awarding cus- tody take place at the domicil. A reason which is frequently given for the assertion that power over status is, or should be, in the domiciliary state is that that state has a peculiar interest or concern in the status of its own citizens.5 Unfortunate- ly, problems relating to permissible state control over legitimacy, adop- tion, and custody cannot be solved through resort to such a simple thesis. The legal relations which in the aggregate are designated by such terms as legitimacy, adoption, or custody, necessarily affect more persons than one. When the domicils of these individuals are in different states, considera- tion cannot be given simultaneously to the peculiar interests of all of the states involved. Furthermore, even though it were possible to weigh the interests of the several states for the purpose of determining the jurisdic- tion or jurisdictions having a predominant claim to power, the process of balancing and counter-balancing would, if state interests alone were taken into consideration, fail to make allowances for the interests of the child.
    [Show full text]
  • International Conflict of Laws -- the Protective Principle in Extraterritorial Criminal Jurisdiction
    University of Miami Law Review Volume 15 Number 4 Article 10 7-1-1961 International Conflict of Laws -- The Protective Principle in Extraterritorial Criminal Jurisdiction Robert Staal Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Robert Staal, International Conflict of Laws -- The Protective Principle in Extraterritorial Criminal Jurisdiction, 15 U. Miami L. Rev. 428 (1961) Available at: https://repository.law.miami.edu/umlr/vol15/iss4/10 This Case Noted is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. UNIVERSITY OF MIAMI LAW REVIEW [VOL. XV INTERNATIONAL CONFLICT OF LAWS- THE PROTECTIVE PRINCIPLE IN EXTRATERRITORIAL CRIMINAL JURISDICTION Appellant, an alien, was prosecuted in a federal district court for false statements made at an American consulate in Mexico in order to procure a nonquota immigrant visa.' The court based its denial of a motion to dismiss on the ground that jurisdiction was established by reference to the offense against the integrity of the United States, irrespective of the locus of the crime and the nationality of the defendant. On appeal, held, affirmed: there are no constitutional prohibitions against the exercise of jurisdiction, under the "protective" principle, over an alien found within the sovereign's territory. Rocha v. United States, 29 U.S.L. WEEK 2411 (9th Cir. 1961), petition for cert.
    [Show full text]