Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 1947 Policy Bases of the Conflict of Laws: Reflections on Rereading Professor Lorenzen's Essays Fowler V. Harper Indiana University School of Law Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Conflict of Laws Commons, and the Jurisprudence Commons Recommended Citation Harper, Fowler V., "Policy Bases of the Conflict of Laws: Reflections on Rereading Professor Lorenzen's Essays" (1947). Articles by Maurer Faculty. 2033. https://www.repository.law.indiana.edu/facpub/2033 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. POLICY BASES OF THE CONFLICT OF LAWS: REFLECTIONS ON REREADING PROFESSOR LORENZEN'S ESSAYS FOWLER V. HARPERt THE publication by Ernest G. Lorenzen of a selection of his essays on the Conflict of Laws I makes appropriate a fresh consideration of the philosophic bases of a field of American law whose growth from a barren formalism to a fruitful discipline is in large measure attributable to Professor Lorenzen's penetrating analysis and reflection. For a third of a century, as these essays eloquently testify, little has happened in this area of legal activity which has failed to attract Professor Loren- zen's interest and attention. His own contributions vary from inten- sive studies in highly technical segments of the Conflict of Laws to those broader considerations of policy and method which give great impetus and direction to scholarly activity. A good deal of twentieth century water has gone over the Conflicts dam. Not only has scholarship in the United States reached a level never theretofore attained, but revolutionary ideas have been born, the ultimate effect of which it is still difficult to predict. In the van- guard of all such activities has ever been found the patient, meticulous and searching mind which Professor Lorenzen brings to bear upon the problems with which he grapples. On any showing, his must be in- cluded in the slender volume which contains the names of great Ameri- can legal scholars. Few have done so much to bring within the range of American legal vision the purposes and objectives of the Conflict of Laws and certainly no one has contributed more to the increasing awareness of the Ameri- can bar of the basic technical difficulties involved. Professor Lorenzen's familiarity with foreign systems of law has made it possible for him to enrich his own work by utilizing the studies of continental jurists whose insight into many problems far exceeded that of most American writers of the era. For practical purposes, it was Professor Lorenzen who first introduced into American legal thinking the subtle problems involved in the renvoi and the theory of qualification. Almost forty years ago his first article on renvoi appeared in the Columbia Law Review. 2 A decade later this was followed by his first discussion of the problem of qualification. 3 It is an amazing fact that problems so basic hod re- IVisiting Professor of Law, Yale School of Law. 1. LORENZEN, SELECTED ARTICLES ON THE CoNxCr r LAWS (1947). 2. Lorenzen, The Renvoi Theory and the Application of Forcign Law, 10 CoL.L. Rv. 190, 327 (1910), followed in 1918 by The Renvoi Doctrine in the Conflict of Laws -Meating of "The Law of a Country," 27 YA. L. 3. 509 (1918). 3. Lorenzen, The Theory of Qualifications and the Conflict of Laws 20 CoL. L. 1156 THE YALE LAW JOURNAL [Vol, 56: 1155 ceived substantially no attention from American writers on the Con- flict of Laws, although the renvoi had been dealt with in English law more than a half century before. 4 Professor Lorenzen's analytical mind has enabled him to grasp fully the fundamental character of the difficulties involved in the renvoi and in qualification and their far-reaching significance in connection with the attainment of the uniformity of legal consequence which is assumed to be the primary objective of this branch of the law. The extension of knowledge about these problems and the relative degree of sophis- tication of the present generation of law students and writers I are re- sults largely of the momentum given by Professor Lorenzen to the in- vestigation of such matters. His interest in every aspect of foreign systems of the Conflict of Laws together with his intensive work in connection with the renvoi and qualification entitle Professor Lorenzen to credit for laying the basis of an American comparative law of Con- flict of Laws, I a field which will certainly attract the attention of many able scholars of the future. Perhaps his greatest contribution to the subject of which he is a master is the work which Professor Lorenzen shared with his distin- guished colleague, Walter Wheeler Cook. I These two were pioneers REv. 247 (1920), followed by The Qualification, Classification or Characterzatiot Prob- lent in the Conflict of Laws, 50 YALE L. J. 743 (1941). 4. Collier v. Rivaz, 2 Curt. Ecc. 855 (1841), discussed by Lorenzen, The Renvoi Theory and the Applicatio!&of Foreign Law, 10 COL. L. REv. 327 (1910). 5. Since Professor Lorenzen's first article on renvoi, a considerable number of learned articles have appeared in the legal periodicals, including: Coox, THE LoGIC. AND LEGAL BASES OF CoNFLicT OF LAwS c. IX (1942) ; Bates, Remission and Transuns. sion in; Aerican Conflict of Laws, 16 CORN. L. Q. 311 (1931) ; Bentwich, Recent Ap-, plication of the Renvoi in Matters of Personal Status, 14 CAN. B. REv. 379 (1936); Cheatham, International Law Distinctions in the Conflict of Laws, 21 CotN. L. Q. 570 (1936); Cook, "Characterization"in the Conflict of Laws, 51 YALE L. J. 191 (1941) ; Cormack, Renvoi, Characterization,Localization and Preliminary Question. in the Con- flict of Laws, 14 So. CALiF. L. R-v. 221, 387 (1942); Cowan, Renvoi Does not Involve a Logical Fallacy, 87 U. OF PA. L. Ray. 34 (1938); Falconjjridge, Rcnvoi and the Law of The Domicile, 19 CAN. B. Rlv. 311 (1941); Falconbridge, Bills of Lading: Proper Law and Renvoi, 18 CAN. B. REv. 77 (1940); Falconbridge, Characterization and Ac- quired Rights, 17 CAN. B. R-v. 369 (1939) ; Falconbridge, Conflict of Laws: Examples of Characterization,15 CAN. B. REv. 215 (1937); Falconbridge, Renvol and Succession to Movables, 46 L. Q. Rav. 465 (1930), 47 L. Q. REv. 271 (1931); Griswold, In Reply to Mr. Cowan's Views on Renvoi, 87 U. OF PA. L. Rav. 257 (1939); Griswold, Renvoi Revisited, 51 HARv. L. Ray. 1165 (1938); Meriggi, Conflicts of Law--A Theoretical Ap- plication, 14 B. U. L_ Ry. 319 (1934) ; Pascal, Characterization as an, Approach to the Conflict of Laws, 2 LA. L. Rv. 715 (1940); Robertson, Survey of the Characterization Problem in the Conflict of Laws, 52 HARv. L. Rzv. 747 (1939); Schreiber, The Doctrine of the Renvoi in Anglo-American Law, 31 HAav. L. REv. 523 (1918). 6. See Rheinstein, Comparative Law and Conflict of Laws in Gertnany, 2 U. oF CHL L. RFv. 232, 257 ff. (1932). 7. Lorenzen, Territoriality, Public Policy and the Conflict of Laws, 33 YALE L. 3. 1947] POLICY BASES OF THE CONFLICT OF LAWS 1157 in outlining an approach to the baffling mysteries of the Conflict of Laws which has proved to be of the greatest significance. It was here that they played such an important part in the growing maturity of American Conflict of Laws thinking during the last quarter of a cen- tury. Their work hastened the evolution of the Conflict of Laws from a mechanical, over-simplified machine to a body of legal principles in- corporating some of the most profound of our notions of social policy. A striking example of this new maturity of thought is to be found in the current technique of the Supreme Court in dealing with the prob- lems of jurisdiction over foreign corporations, as compared v.ith the formulary method formerly employed. "It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. The test is not merely, as has sometimes been suggested, whether the activity, which the cor- poration has seen fit to procure through its agents in another state, is a little more or a little less. Whether due process is satisfied must de- pend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties or relations. "But to the extent that a corporation exercises the privilege of con- ducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations; and, so far as those obligations arise out of it or are con- nected with the activities within a state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue." 8 Occasional references, from time to time, are made to the various policies reflected in the rules of Conflict of Laws and the values under- lying those policies, but all too little is done about it.