California Law Review
Volume 55 | Issue 1
Article 4
April 1967
False Conflicts
Peter Kay Westen
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Recommended Citation
Peter Kay Westen, False Conflicts, 55 Cal. L. Rev. 74 (1967).
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol55/iss1/4
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FALSE CONFLICTS
Rien ne semble vray, qui ne puisse sembler faux.t
On May 3, 1958, Harry Goldberger, a resident of New York, sold a
1950 Mercury registered in his name to Joseph Rivera, also a resident of
New York. Although he endorsed the registration cards at the time of
sale, Goldberger delivered the car to Rivera without removing the New
York license plates registered in his name. Twenty-seven days later, on
a rainy night in the District of Columbia, Rivera collided with a truck
driven by an agent of Rawlings Truck Line, Inc. David Williams, a passenger in Rivera's car and a resident of New Jersey, filed suit for alleged
injuries in the district court for the District of Columbia against Rawlings
Truck Line, Inc. Unable to locate Rivera, Williams traced registration
tags on the passenger car to Goldberger, whom he included in the suit as
a proper party defendant.'
The trial court directed the verdict in favor of Goldberger, by finding
that he was not an "owner" within the meaning of the District of Columbia Financial Responsibility Law. On appeal, in Williams v. Rawlings
Truck Line, Inc.,' the Circuit Court for the District of Columbia issued a
per curiam decision reversing the verdict in favor of Goldberger by finding
that he was an "owner" within the meaning of the New York Vehicle and
Traffic Law. The case seemed to present a choice-of-law problem. For
under District law, a registered owner is permitted to overcome the presumption of legal ownership by showing passage of equitable title, while
under New York law he is estopped from denying ownership. The court
resolved the problem by identifying the case as a "false conflict," 3 namely
an instance where only one state-in this case New York-maintains an
"interest" 4 in having its law applied.
In sum, this case presents a classic "false conflicts" situation. Adoption
of the New York doctrine of estoppel will further the interests of New
York, but will not interfere with any of the articulated policies of the
District of Columbia. On the other hand, application of the District's
rule allowing proof of sale would impinge upon New York's interests,
without furthering any of the recognizable policies of the District.
As a false conflicts case, our decision becomes simple: we apply the
estoppel rule of New York, the only jurisdiction with an interest
t 3 MONTAIGNE, LES EssAms chi. XII, at 179 (1739).
1 For a detailed statement of the facts of the case, see Brief for Appellees, John Willis
and Rawlings Truck Line, Inc., pp. 1-5, Williams v. Rawlings Truck Line, Inc., 357 F.2d S81
(D.C. Cir. 1965).
2 357 F.2d 581 (D.C. Cir. 1965).
3 Id. at 586.
4 Ibid.
FALSE CONFLICTS
in having its law applied to the issue of defining ownership of the
vehicle.5
The court then remanded the case to the trial court for hearing on the
second choice-of-law issue, namely whether New York or District law
applied to the question of liability.
Two things should be noted at the outset. First, despite the language
of the court in Williams, there is as yet no such thing as a "classic" false
conflicts situation; 6 and second, were such a situation before the court,
'7
its disposition would by no means be "simple."
The concept of "false conflicts" came into the choice-of-law world
through a series of articles written by Professor Brainerd Currie between
1958 and 1965.8 Other commentators have since asserted that the idea
of false conflicts is an old concept which Currie simply clothed in new
terminology.' Professor Cavers did, in fact, propose an approach to choiceof-law problems in 1933 which was very similar in principle and wording
1 Id. at 586. (Emphasis added.)
6 To date, only one other court has characterized a choice-of-law case as a "false conflict."
Kuchinic v. McCrory, 422 Pa. 620, -,
222 A.2d 897, 899 (1966). Commentators themselves
are in disagreement on the meaning of the term. Compare EHRwzwEiG,
CoNFLICT OF LAWS
§ 102, at 310 n.4 (1962), and Leflar, Choice-Influencing Considerations in Conflicts Law, 41
N.Y.U.L. Rnv. 267, 290 (1966), with Cavers, The Conditional Seller's Remedies and the
Choice-of-Law Process-Some Notes on Shanahan, 35 N.Y.U.L. REv. 1126, 1136-38 (1960).
Cf. Lefilar, supra, at 270 n.19, "[Tlhere is no agreement on exactly how far the 'false conflicts'
category is to be extended .... .
7 See analysis of the Williams case in text accompanying notes 124-43 infra.
8 Currie, On the Displacement of the Law of the Forum, 58 CoLum. L. REv. 964 (1958);
Currie, Survival of Actions: Adjudication versus Automation in the Conflict of Laws, 10 STAN.
L. REv. 205 (1958); Currie, Married Women's Contracts: A Study in Conflict-of-Laws
Method, 25 U. Cm. L. REV. 227 (1958); Currie, The Constitution and the Choice of Law:
Governmental Interests and the Judicial Function, 26 U. Cur. L. REv. 9 (1958); Currie,
Notes on Methods and Objectives in the Conflict of Laws, 1959 Duxa L.J. 171; Currie, The
Constitution and the "Transitory" Cause of Action (pts. 1-2), 73 HARv. L. Rav. 36, 268
(1959); Currie, The Silver Oar and All That: A Study of the Romero Case, 27 U. Cm. L.
Rav. 1 (1959); Currie & Lieberman, Purchase-Money Mortgages and State Lines: A Study
in Conflict-of-Laws Method, 1960 DuxE L.J. 1; Currie & Schreter, Unconstitutional Discrimination in the Conflict of Laws: Privileges & Immunities, 69 YALE LJ. 1323 (1960);
Currie & Schreter, UnconstitutionalDiscriminationin the Conflict of Laws: Equal Protection,
28 U. Cm. L. REv. 1 (1960); Currie, The Verdict of the Quiescent Years: Mr. Hill and the
Conflict of Laws, 28 U. Cm. L. Rlv. 258 (1961); Currie, Justice Traynor and the Conflict
of Laws, 13 STAix. L. REv. 719 (1961); Currie, Conflict, Crisis, and Confusion in New York,
1963 Duxa LJ. 1. [The above articles are reprinted in CuRaTE, SELEcTED ESSAYS oN THE
Cozulor oF LAWS (1963).] See also Currie, The Disinterested Third State, 28 LAW &
CONTEMP. PRoB. 754 (1963); Currie, Ehrenzweig and the Statute of Frauds: An Inquiry
into the "Rule of Validation," 18 OKLA. L. REv. 243 (1965); Currie, Book Review, 1964
DUxE L.J. 424.
9 Hill, Governmental Interest and the Conflict of Laws-A Reply to Professor Currie,
27 U. Cm. L. REv. 463, 474, 492 (1960).
CALIFORNIA LAW REVIEW
[Vol. 55:74
to the one advanced by Currie.10 Currie, however, was the first to analyze
systematically the disposition of what he called "false problems."' The
phrase "false conflicts" which Currie himself never used, has nonetheless
been consistently attributed to him by others.' While most commentators
agree on the disposition of "false conflicts" cases,,8 they have not yet
agreed when such cases-not to mention "classic" false conflicts casesmay occur."4 Nor have they agreed on terminology. Hereinafter, the
phrase "false conflicts" will be used to group together what have been
variously called "false problems,"' 5 "spurious conflicts,"' 0 "illusory"
conflicts,'17 "apparent" conflicts,' 8 "avoidable" conflicts, 19 "pseudo conflicts"' and "superficial" conflicts. 2 1
In his book, The Choice-of-Law Process, Professor Cavers enumerates
four kinds of "false conflicts" :22
2
1. Cases in which the laws of both states are the same. 3
I'
Cavers, A Critique of the Choice-of-Law Problem, 47 HAv. L. REv. 173, 176-77
(1933).
11 Currie first developed the concept in Married Women's Contracts: A Study in Conflictof-Laws Method, 25 U. CHr. L. Rxv. 227 passim (1958). In his last substantial treatment of
the problem, Currie persisted in using the term "false problem" rather than "false conflict."
Currie, The Disinterested Third State, 28 LAW & CONTBIP. PROB. 754 (1963).
12 See Williams v. Rawlings Truck Line, Inc., 357 F.2d 581, 586 (D.C. Cir. 1965);
CAVERS, T=E CizoicE-oF-LAw PROCESS 30 (1965); Baxter, Choice of Law and the Federal
System, 16 STAN. L. Rv. 1, 8 (1963); Hill, supra note 9, at 467; Kay, Conflict of Laws:
Foreign Law as Datum, 53 CAiIF. L. REv. 47, 63 (1965); Leflar, supra note 6, at 270 n.19;
M. Traynor, Conflict of Laws: Professor Currie's Restrained and Enlightened Forum, 49
CALIF. L. REv. 845, 847 (1961).
13 Currie, Survival of Actions: Adjudication versus Automation in the Conflict of Laws,
10 STAN. L. REV. 205, 207-08 (1958).
14 Leflar, supra note 6, at 269-70, 270 n.19.
15 See Currie articles cited in note 8 supra; Cavers, A Critique of the Choice-of-Law
Problem, 47 H. v. L. REv. 173, 176-77 (1933).
16 Kramer, Interests and Policy Clashes in Conflict of Laws, 13 RUTGERS L. REv. 523,
531 (1959) ; R. Traynor. Is This Conflict Really Necessary?, 37 Tr~xs L. REV. 657, 674 (1959) ;
Weintraub, A Method for Solving Conflict Problems-Torts,48 CoRNELL L.Q. 215, 216 (1963).
17Weintraub, A Method for Solving Conflict Problems, 21 U. PiTr. L. REV. 573, 574
(1960).
18 EREN zEiG, CoNm-ucT OF LAWS §
102, at 310 (1962)
; VON MEHREN & TRAUTMAN,
TnE LAW OF MUTLTISTATE PROBLT-S 327 (1965); Currie, The Disinterested Third State, 28
LAW & CONTELIP. PROB. 754, 765 (1963); Weintraub, A Method for Solving Conflict Problens, 21 U. PrTT. L. REv. 573, 577 (1960).
19 CAVms, THE CHOICE-OF-LAW PRocEss 64 (1965); Comment, Usury and the Conflict
of Laws: The Doctrine of the Lex Debitoris, 55 Cmi. L. REv. 123, 188 (1967).
20
EBmmzwEiO, CoNrucT OF LAWS § 102, at 310 (1962).
21 Freund, Chief Justice Stone and the Conflict of Laws, 59 HARV. L. REV. 1210, 1216
(1946).
22 CAvERs, THE CHOICE-OF-LAW PROcEss
63-64, 89-90 (1965).
Ehrenzweig limits the meaning of "false conflicts"--or "pseudo conflicts," as he calls
them-to "cases where there [is] no difference, existing or alleged, between any of the
potentially applicable laws . . . ." EHRMMzWEIG, Co=uIrT oX' LACV 1 175, at 466 (1962).
23
19671
FALSE CONFLICTS
2. Cases in which the laws of two states, though different, yield identical results with respect to the specific issue before the court.
3. Cases in which two states have different laws, but only one state has
an interest in having its law applied. This is the case Currie referred
to as a "false problem," and one which the court in Williams v.
Rawlings Truck Line, Inc. identified as a "classic 'false conflicts'
situation."2 4
4. Cases in which states with different laws both have an interest in
applying their own law, but in which "the forum [is] prepared,
when the circumstances warrant, to give a moderate and restrained
interpretation to the policy
or interest of one state or the other and
25
thus avoid the conflict."1
Three more situations, not discussed by Cavers, have been referred to
by other commentators as "false conflicts" and should be added to the
list:
5. Cases in which the laws of two states are involved, but neither has
an interest in having its law applied. Related to this is the case of
a disinterested forum confronting a true conflict between two
other states but having itself no rational preference for one rather
than the other law 2 6
6. Cases in which foreign law (or forum law, as the case may be) is
referred to not for the rule of decision, but as a datum for the state
27
applying its law.
"True conflicts [are such] in the sense that they require a choice between the law of the
forum and one or more foreign different rules that purport to be applicable to the particular
issue." Id. § 103, at 311. For comment on the value of such "pseudo conflicts" as choice-oflaw precedent, see Ehrenzweig, The "Most Significant Relationship" in the Conflicts Law of
Torts, 28 LAW
&
CONTEMP. PROB. 700, 701 (1963).
In the words of Professor Currie: "[EJach is a case in which potentially (or conventionally) significant factors are associated with more than one state. They do not, however,
present real problems, because they do not involve conflicting interests of the respective
states. It is perfectly clear what the result should be in each. Either state, though approaching
the case with no other purpose than to advance its own interests, would reach that result."
Currie, Married Women's Contracts: A Study in Conflict-of-Laws Method, 25 U. Cnx. L.
REv. 227, 251-52 (1958). "When one of two states related to a case has a legitimate interest
in the application of its law and policy and the other has none, there is no real problem;
dearly the law of the interested state should be applied." Currie, The Constitution and the
Choice of Law: Governmental Interests and the Judicial Function, 26 U. Cn. L. REv. 9, 10
(1958).
25 CAvEas, Tim CHoicE-or-LAw PaocEss 63-64 (1965). Professor Cavers has variously
characterized this situation as both a "false' and an "avoidable" conflict. Cavers, Oral Con24
tracts to Provide by Will and the Choice-of-Law Process: Some Notes on Bernkranti in
PERsv'cTivEs or LAW: EssAYs YoR Ausrnw WAXEmAw
Scoir 38, 65 n.53 (Pound, Griswold &
Sutherland eds. 1964).
26 For the case where neither state has an "interest" in applying its law to the issue
before the court, see Currie, Survival of Actions: Adjudication versus Automation in the
Conflict of Laws, 10 SrTA. L. REv. 205, 229 (1958). For a discussion of the "disinterested
forum," see Currie, The Disinterested Third State, 28 LAw & CoNTE21P. PROB. 754 (1963).
27 R. Traynor, supra note 16, at 667-68.
CALIFORNIA LAW REVIEW
[Vol. 55:74
7. Cases in which the law of only one of several contact-states has
been pleaded. 28
Extensive discussion of Currie's "governmental-interest analysis" 29 and
of his approach to the disposition of "true conflicts"30 is beyond the
scope of this Comment. That debate has been conducted elsewhere. 8'
Rather it is the purpose of this Comment to analyze the seven false conflicts situations described above, particularly with reference to the Williams case, by inquiring into what they have in common, and how they
might best be resolved.
ABSENCE OF CONFLICTING INTERESTS
AND TEE FINDING OF FALSE CONFLICTS
The concept of "false conflicts" enjoys protean facility for justifying
everyman's choice-of-law theory. 2 Members of the choice-of-law guild
who discover a rational solution for a conflicts problem, tend to characterize the problem as a "false conflict." Although one member may criticize
another for his finding of a false conflict, or for his approach to its solution, few have criticized the concept itself. 8 Each seeks instead to incorporate it into his own method.
28 See discussion of Walton v. Arabian Am. Oil Co., 233 F.2d 541 (2d Cir.), cert. denied,
352 U.S. 872 (1956), in Currie, On the Displacement of the Law of the Forum, 58 CoLrx.
L. REv. 964 (1958).
29 The phrase is apparently Currie's. See Currie, The Constitution and the Choice of
Law: Govenmental Interests and the JudicialFunction, 26 U. Cm. L. Rav. 9 (1958).
30 Currie was the first to divide the choice-of-law world into hemispheres of "false
conflicts" and "true conflicts." Currie, Married Women's Contracts: A Study in Conflict-ofLaws Method, 25 U. Cmi. L. REv. 227, 251-63 (1958). To the extent that false conflicts and
true conflicts together are all-inclusive and individually are mutually exclusive, the single
problem in choice of law today is deciding where to draw the line between them.
31
See CAvERS, TRE CH oICE-oF-LAw PRocEss 19-87 (1965) ; EnREwzwEio, CoNrucr or
LAws 310, 348 (1962) ; Baxter, Choice of Law and the Federal System, 16 STAN. L. REV. 1
(1963) ; Cavers, Comments on Babcock v. Jackson, A Recent Development in Conflict of
Laws, 63 CoLOm. L. Rv. 1212, 1219-29 (1963); Ehrenzweig, Comments on Babcock v.
Jackson, A Recent Development in Conflict of Laws 1212, 1243-47 (1963); Hill, Governmental Interest and the Conflict of Laws-A Reply to Professor Currie, 27 U. Cm. L. Rxv.
463 (1960); Kelso, The Process of Analyzing Choice of Law Problems, 1959 WAsH. U.L.Q.
37 (1959); Kramer, Interests and Policy Clashes in Conflict of Laws, 13 RuTGERs L. REV.
523 (1959); Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L. REV.
267 (1966); Sumner, Choice of Law Rules: Deceased or Revived?, 7 U.C.LAL. REv. 1
(1960); M. Traynor, Conflict of Laws: Professor Currie'sRestrained and Enlightened Forum,
49 CA=F. L. REV. 845 (1961); Weintraub A Method for Solving Conflict Problems, 21 U.
Prrr. L. REv. 573, 589 (1960).
32 For commentators using "false conflicts" or related terms, see notes 15-21 supra.
33
For extensive discussion of one particular substantive area, usury, in terms of false
conflict analysis, see Comment, Usury and the Conflict of Laws: The Doctrine of the Lex
Debitoris,55 CAr~w. L. REv. 123, 188-97 (1967).
19671
FALSE CONFLICTS
Originally, the idea of false conflicts developed as part of Professor
Currie's governmental-interest analysis. He claimed, in fact, that "the
clearest contribution of governmental-interest analysis to conflict of laws
method is that it establishes the existence of . . . false [conflicts] and
provides a workable means of identifying them. 34 The connection, however, between governmental-interest analysis and a finding of false conflicts is hardly fortuitous. The latter is rather a product of the former.
To speak of governmental-interest analysis as a "workable means of
identifying" false conflicts is to suggest that false conflicts "exist" somehow independently from the process which establishes them.3 5 To the
extent that a finding of false conflicts is a product of governmentalinterest analysis, it is both improper and misleading to divorce that finding from the process which creates it.3 6
Professor Currie introduced his analysis by dividing the choice-of-law
world at the outset into "true" and "false" conflicts.37 True conflicts
were said to include those cases where the laws of "interested" states
PROB. 754, 756 (1963).
34 Currie, The Disinterested Third State, 28 LAW & CozNTEI.
"Minimization of conflicts problems by weeding out 'false conflicts,' a technique not yet
adequately developed, should be one of the most fruitful and expandable methods of simplifying choice of law." Leflar, supra note 31, at 289. "It should be apparent from the foregoing
discussion that Professor Currie's analysis is particularly useful in eliminating false conflicts
from cases where only one state's policy is relevant." M. Traynor, supra note 31, at 851.
"One of the great virtues of Currie's thesis, it seems to me, is that it enables us to distinguish
those cases and situations where there are real conflict problems, actual clashes of different
states' policies ... from [false] conflict cases .... " Kramer, supra note 31, at 531. Contra,
Hill, supra note 31, at 495.
35 See Cavers, Oral Contracts to Provide by Will and the Choice-of-Law Process: Some
Notes on Bernkrant, in PRtsPvCTES or LAW: EssAys ro AvusTN WA==J&rAJ ScoTT 38, 65
(Pound, Griswold & Sutherland eds. 1964); Cavers, The Changing Choice-of-Law Process
and the Federal Courts, 28 LAw & CONTEMP. PROB. 732, 733 n.4 (1963). It should not be
assumed that Currie himself conceived of "false conflicts" independently from the process
of establishing them. Currie, The Disinterested Third State, 28 LAw & CoNTE . PROB. 754,
756 (1963).
36
For inconsistencies that result when governmental-interest analysis is dissociated
from the concept of false conflicts, see text accompanying notes 180-234 infra.
37
Currie himself used a slightly different terminology by speaking of "true conflicts"
on the one hand and "false problems" on the other. Currie, Married Women's Contracts: A
Study in Conflict-of-Laws Method, 25 U. CE. L. REv. 227, 254, 263 (1958). Currie later
modified this rigid dichotomy by introducing a third class of cases: "In this paper I have
mentioned three classes of cases: (1) Those in which analysis indicates that only one state
has an interest in the application of its policy; (2) those in which it appears that each state
would be constitutionally justified in asserting an interest, but on reflection conflict is
avoided by a moderate definition of the policy or interest of one state or the other; (3)
those in which a conflict of interests persists despite efforts to avoid it by moderate definition
of policies and interests. In the past I have enjoyed saying that the problems of conflict of
laws consist of (1) false problems and (2) problems that cannot be solved except by
Rather plainly, however, it is not helpful to speak of the cases of the
political action ....
second class as 'false problem' cases." Currie, The Disinterested Third State, 28 LAw &
CONTE1M. PROB. 754, 763-64 (1963).
CALIFORNIA LAW REVIEW
[Vol. 55: 74
conflict. False conflicts, on the other hand, constituted those cases where
the laws of interested states do not conflict, either because only one state
is found to be interested, or because the laws of several interested states
are found to be compatible.38 In applying Currie's method, a court therefore makes a twofold finding: first, whether more than one state is "interested" in the outcome of the pending suit; and second, given several
interested states, whether their laws in fact conflict.8 9
Currie's elusive concept of an "interested" state has not escaped
criticism.4 To say that a state is "interested" in the disposition of a
particular case is not to say that its citizens or public officials will in any
way take notice of the litigation.4 1 Saying a state is "interested" in a
particular suit is legal shorthand for saying that it is interested in having
its law applied to the facts of that case. A state is interested in applying
its law to a suit when policies underlying that law would thereby be
furthered. Policies underlying a law, in turn, are furthered when that law
is applied to factual contexts which it was intended to resolve. Differently
phrased, a state is interested in applying its law to a particular case
when it can be said that the law was designed to encompass the facts of
just such a case. Laws of a state, in turn, are not designed to dispose of
all conceivable cases,' but only of those having factual contact with the
state such that it may be affected by the outcome of the suit. A state is
so affected when one of the persons it presumes to protect is a party to
38 "1 have suggested that, in the light of [governmental-interest analysis], some typical
choice-of-law problems fall into two classes: (1) false problems and (2) problems which are
insoluble by any conceivable conffict-of-laws method. When one of two states related to a
case has a legitimate interest in the application of its law and policy and the other has none,
there is no real problem; clearly the law of the interested state should be applied .... When
each of two states related to a case has a legitimate interest in the application of its law
and policy, a problem is presented which cannot be rationally solved by any method of
conflict of laws . . . ." Currie, The Constitution and the Choice of Law: Governmental
Interests and the JudicialFunction, 26 U. Cm. L. Rzv. 9, 10 (1959).
39 Currie proposed a five-step process for the courts to follow in resolving choice-of-law
problems. Currie, The Constitution and the Choice of Law: Governmental Interests and the
Judicial Function,26 U. C3a. L. Rxv. 9, 9-10 (1958). See also Currie, Comments on Babcock
v. Jackson, A Recent Development in Conflict of Laws, 63 COLr M. L. Rav. 1212, 1242-43
(1963).
40 CAvWRs, THE CH ICE-oF-LAW PROCESS 98-102 (1965). EHnEzwEio, CoNFMCT oF
LAws § 122 (1962); Ehrenzweig, Choice of Law: Current Doctrine and "True Rules," 49
CAT=. L. REv. 240, 241-48 (1961) ; Ehrenzweig, Comments on Babcock v. Jackson, A Recent
Development in Conflict of Laws, 63 CoLum. L. Rlv. 1212, 1243-47 (1963); Kelso, supra
note 31, at 37; Kramer, supra note 31, at 531.
41 "The chief hazard, as I see it, may spring from the misleading air of substantiality
that the term 'interest' exudes. It suggests that the state's concern ... is comparable to the
state government's interest in the achievement of public objectives it is actively pursuing
or would vigorously defend." CAvExs, TmE CHOIcE-o -LAw PROCESS 100 (1965).
42 See Currie, Married Women's Contracts: A Study in Conflict-of-Laws Method, 25
U. Cm. L. Rav. 227, 230-31 (1958) ; Kramer, supra note 31, at 539.
19671
FALSE CONFLICTS
the dispute,48 when misconduct it finds culpable transpired within the
state,4 4 when its courts are invoked to resolve a dispute which it wishes to
avoid 4 5 or when persons with a financial stake in the litigation are residents of the state.46
The usefulness of Currie's method depends ultimately on its success in
establishing meaningful criteria for identifying "governmental interests.1 47 In those rare cases where a state statute is accompanied by a statement of purpose outlining the extent to which it is to be applied to multistate situations,48 the courts have some guidance in defining governmental
interests. In most cases, however, where statutes are drafted in generali4 9 the courts-in
ties,"
deciding how such statutes apply to multi-state
situations-must define their own criteria for determining governmental
interest."°
Because conflicts commentators themselves differ on what constitutes
an interested state,5 it hardly seems surprising to find courts in disagree43 "Frequently it is clear that the purpose of a law is to protect . ..
one of the parties
to a transaction. It is equally clear that the benefit or protection is not intended for all men
everywhere, but only for those who by virtue of their relationship to the state are within
the legitimate scope of its governmental concern. If the policy of such laws is to be effectuated,
they must be applied in such a way as to protect the intended beneficiaries." Currie &Schreter,
UnconstitutionalDiscriminationin the Conflict of Laws: Privileges and Innunities, 69 YALE
LJ. 1323, 1324 (1960). See Gore v. Northeast Airlines, Inc., 222 F. Supp. 50, 52-53 (S.D.N.Y.
1963); Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 380-81, 82 N.W.2d 365, 368 (1957).
44
Personal Fin. Co. v. Gilinsky Fruit Co., 127 Neb. 450, 255 N.W. 558, cert. denied,
293 U.S. 627 (1934).
45 Gordon v. Parker, 83 F. Supp. 40 (D. Mass. 1949); Mertz v. Mertz, 271 N.Y. 466,
3 N.E.2d 597, 285 N.Y. Supp. 590 (1936).
40
McSwain v. McSwain, 420 Pa. 86, 96, 215 A.2d 677, 682-83 (1966); Currie, The
Disinterested Third State, 28 LAW & CONTENT. PROB. 754, 771 (1963); Currie, The Silver
Oar and All That: A Study of the Romero Case, 27 U. Cmn. L. Rxv. 1, 69 (1959).
47 See Kramer, supra note 31, at 532.
48
For illustration of a statute drafted with reference to the multi-state context, see VA.
CODE ANN. § 8-650 (1950).
49 "Lawgivers, legislative and judicial, are accustomed to speak in terms of unqualified
generality. Apart from the imperatives, the words most inevitably found in rules of law are
words like 'all,' 'every,' 'no,' 'any,' and 'whoever,'" Currie, Married Women's Contracts: A
Study in Conflict-of-Laws Method, 25 U. Cma L. Rxv. 227, 230 (1958).
50 "[Elven lawyer-drafted legislation usually fails to specify what factual connections
with the forum call the statute into play. Indeed, only rarely is there clear indication of a
policy which might be used as a premise to determine the statute's application to multi-state
cases." Kelso, supra note 31, at 37.
51 Compare Currie's analysis of Clay v. Sun Ins. Office, Ltd., 363 U.S. 207 (1960), in
The Verdict of the Quiescent Years: Mr. Hill and the Conflict of Laws, 28 U. C I. L. R v.
258, 290-94 (1961), with M. Traynor's analysis of the same case in Conflict of Laws:
Professor Currie's Restrained and Enlightened Forum, 49 CAL . L. REv. 845, 867-73 (1961).
Compare Weintraub, A Method for Solving Conflict Problems, 21 U. PITT. L. REv. 573, 589
(1960), with Currie, Survival of Actions: Adjudication versus Automation in the Conflict of
Laws, 10 STAr. L. REv. 205, 228-29 (1958). Cf. CAVERS, THE CHOICE-OF-LAw PROCEss 38-43
(1965) ; Currie, Ehrenzweig and the Statute of Frauds:An Inquiry into the "Rule of Valida-
CALIFORNIA LAW REVIEW
[Vol. 55:74
ment on the same subject.5 2 Some courts define interests broadly to include almost every state which has factual contact with the case at
hand; 53 other courts construe such interests narrowly. 4 Much discussion
has already been devoted to the question whether courts are capable of,
or constitutionally precluded from, "weighing" governmental interests."
Whatever is meant by "weighing interests," it seems clear that normative judgments are implicit in the process of determing whether a foreign
state has an interest in the disposition of a suit:
A court obviously must decide if the alleged policy of the state is in
fact an existing one. The state must have an ascertainable policy,
suitably expressed in its law. Next, in seeking out the reasons and
governmental interests behind a state's policy, obviously a court must
to a certain extent weigh and evaluate the innumerable reasons and
interests which speculation and conjecture and imagination can conjure up to alert counsel and judges. Some will simply be dismissed as
too fantastic, too improbable, in default of concrete evidence to the
contrary. Others will be eliminated as highly unlikely. A court is bound
to undertake some weighing, some valuation, some assessment of the
rationality and legitimacy of the seemingly endless reasons and governmental interests which may possibly lie behind a state's policy, and to
eliminate those that are too unlikely.50
tion," 18 OxiLA. L. Rxv. 243, 317 (1965) (an analysis of Murdock v. Calgary Colonization
Co., 193 Ill.
App. 295 (1915)).
52 Compare Macey v. Rozbicki, 23 App. Div. 532, 533, 256 N.Y.S.2d 202, 203 (1965)
(dissenting opinion), with same case on appeal, 18 N.Y.2d 289, -,
221 N.E.2d 380, 384,
274 N.Y.S.2d 591, 595 (1966) (concurring opinion). Compare majority opinion in Dym v.
Gordon, 16 N.Y.2d 120, 209 N.E.2d 792, 262 N.Y.S.2d 463 (1965), with dissenting opinion in
same case.
453Dym v. Gordon, 16 N.Y.2d 120, 209 N.E.2d 792, 262 N.Y.S.2d 463 (1965). But see
Macey v. Rozbicki, 18 N.Y.2d 289, 221 N.E.2d 380, 274 N.Y.S.2d 591 (1966). See also Hill,
supra note 31, at 492.
54 Gore v. Northeast Airlines, Inc., 222 F. Supp. 50 (S.D.N.Y. 1963) ; Gordon v. Reynolds,
187 Cal. App. 2d 472, 10 Cal. Rptr. 73 (1960); Davenport v. Webb, 11 N.Y.2d 392, 183
N.E.2d 902, 230 N.Y.S.2d 17 (1962). Cf. the suggestion in Williams v. Rawlings Truck Line,
Inc., 357 F.2d 581, 585 (D.C. Cir. 1965), that the District of Columbia has no interest in
applying its owner-consent statute to a suit brought in its courts for an accident occurring
within the District. See also Romero v. International Terminal Operating Co., 358 U.S. 354
(1959).
55 See Watson v. Employers Liab. Assur. Corp. 348 U.S. 66 (1954) ; Pacific Employers
Ins. Co. v. Industrial Acc. Comm'n, 306 U.S. 493 (1939); Alaska Packers Ass'n v. Industrial
Acc. Comm'n, 294 U.S. 532 (1935); Baxter, supra note 31, at 18; CAVERS, TnE CnoIcE-orLAW PROCESS 167 (1965) ; Currie, Married Women's Contracts: A Study in Conflict-of-Laws
Method, 25 U. Cmr. L. REv. 227, 259-60 (1958); Leflar, supra note 31, at 300; M. Traynor,
supra note 31, at 862-67. Cf. CHEATnAm, GooDRICH, GRISWOLD, & REESE, CONFLICT or LAWS
(4th ed., 1957); Jackson, Full Faith and Credit-The Lawyer's Clause of the Constitution,
45 CoLum. L. REV. 1 (1945).
56 Kramer, supra note 31, at 545. Cf. Leflar, Constitutional Limits on Free Choice of
Law, 28 LAW & CONTFMP. PROB. 706, 725 (1963); M. Traynor, supra note 31, at 855.
19671
FALSE CONFLICTS
A Pennsylvania case 57 illustrates the judicial process involved in
identifying governmental interests. Plaintiffs, residents of Pennsylvania,
were invited by defendant, also a resident of Pennsylvania, to fly from
Pittsburgh to Miami in defendant's personally piloted plane to attend a
football game. On the return trip, while flying over Georgia, the plane
crashed killing all occupants. Suit was brought in Pennsylvania on behalf
of the deceased passengers against the estate of the pilot. Under Pennsylvania law"8 a guest may recover from his host on a showing of simple
negligence. Under Georgia law 9 a guest can only recover from his host
on a showing of gross negligence. The trial court, assuming that Georgia
law applied as the lex loci delicti, returned a verdict in favor of the defendant. The Pennsylvania Supreme Court reversed by finding that
Pennsylvania law governed the guest-host relationship.
The court specifically grounded its choice of law on "interest
analysis,"6 0 and found that "under no stretch of the imagination can
Georgia be viewed as a concerned jurisdiction.... Georgia's only contact
with the present case, as the situs of the accident, is wholly fortuitous...."
In other words, the court determined that Georgia could have no conceivable interest in applying its guest statute to the facts at issue. The
court based that determination on a finding that Georgia "in passing its
statute . . . undoubtedly intended either to protect insurance companies
from collusive suits or to prevent ungrateful guests from suing their
hosts . . . ."61 If the court correctly construed legislative intent, then no
policy behind the Georgia guest statute would be served by precluding
a Pennsylvania guest from suing a Pennsylvania host in Pennsylvania
under a Pennsylvania insurance contract. However, it is possible that
Georgia passed its statute to protect Georgia residents from rising insurance premiums, in which case it would be "interested" in preventing any
recovery on an insurance contract which might affect those rates."2
57
Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966).
58 Bednarowicz' Estate v. Vetrone, 400 Pa. 385, 390, 162 A.2d 687, 689 (1960).
59 Citizens & So. Nat'l Bank v. Huguley, 100 Ga. App. 75, 110 S.E.2d 63 (1959).
60 422 Pa. at-,
222 A.2d at 899-900 (1966).
61 Ibid. (Emphasis added.)
02 It is assumed that Pennsylvania insurance companies will adjust their premiums to
reflect the broader base of liability which this erosion of lex loci delicti represents. Presumably,
Georgia would have an "interest"--though an admittedly tenuous one-in protecting its
residents contracting for insurance in Pennsylvania from those increased rates. For the suggestion that greater knowledge of insurance premium computation might transform a false
conflict into a true conflict, see Currie, The Disinterested Third State, 28 LAW & CONTEa.
PROB. 754, 764 (1963). For discussion of the impact of insurance rates on choice of law,
compare Morris, EnterpriseLiability and the Actuarial Process-The Insignificance of Foresight, 70 YAL LJ. 554 (1961), with EHREzWEIG, Con-ucr op LAws §§ 218-26 (1962).
[Vol. 59:74
CALIFORNIA LAW REVIEW
Whether or not the Pennsylvania court considered that possibility, it is
hardly correct to say that Georgia "under no stretch of the imagination
can.., be viewed as a concerned jurisdiction." In making such a finding,
the forum states a conclusion, not a premise.63 Although this is not im.
proper, 4 it should be recognized that the forum is ultimately compelled to
define existing govermental interests in light of its own conflict-of-laws
policy. 5
It has been recommended that the legislatures of each state specify
policies underlying their existing law by outlining the extent to which
those laws are to be applied to multi-state cases; the forum, accordingly,
could avoid the problem of deciding whether a sister state were "interested" in a particular suit by referring directly to her declarations of
interest.6" Unhappily, experience has shown that courts cannot responsibly avoid the task of settling confficts cases by looking to another
state's declared interests, 7 for those declarations may seem irrational
63 See note 35 supra. See also VoN MEmHRN & TRA-uTM,
PROBLEMS 327-28 (1965).
THr LAW OF MULTISTATE
64 Cook, The Logical and.LegalBases of the Conflict of Laws, 33 YAr L.J. 457, 475
(1924); Lorenzen, Territoriality,Public Policy and the Conflict of Laws, 33 YALs L.J. 736,
743-44, 748, 750 (1924); Lorenzen, Tort Liability and the Confict of Laws, 47 L.Q. REv.
483, 487 (1931).
65 In construing the applicability of the California statute of frauds, the court in Bernkrant v. Fowler, 55 Cal. 2d 588, 594, 360 P.2d 906, 909, 12 Cal. Rptr. 266, 269 (1961), held
that "we must determine its scope in the light of applicable principles of the law of conflict
of laws." Cf. Cavers, Oral Contracts to Provide by Will and the Choice-of-Law Process:
Some Notes on Bernkrant, in PERSPECTIVES OF LAW: ESSAYS FOR AusTin
VAxEAN ScoTT
38, 66 (Pound, Griswold & Sutherland eds. 1964). For a case in which the court expressly
applied forum law because it determined that "our rule is preferable to that of Vermont," see
Clark v. Clark, 222 A.2d 205, 210 (N.H. 1966).
66 "There is a contribution which legislatures can make to progress in this troubled field.
They can cultivate the practice of adding to specific enactments a section specifying the
extent to which the law is intended to apply to cases involving foreign factors.... The value
of such directions would be tremendous-provided, of course, that they were drafted with
careful regard to the moderate and legitimate interests of the state, and not with an overweening desire to impose the doubtful wisdom of the enacting state upon the rest of the
world.... Their great value would lie in the fact that they would make explicit the policy
expressed in the statute, and the mode of application which will promote that policy." Currie,
Survival of Actions: Adjudication versus Automation in the Conflict of Laws, 10 STAr. L.
REv. 205, 247-48 (1958). Contra, Leflar, Choice-Influencing Considerations in Conflicts Law,
41 N.Y.U.L. REv. 267, 278 (1966).
67 Gore v. Northeast Airlines, Inc., 222 F. Supp. 50 (S.D.N.Y. 1963), a diversity suit
in a federal court for the Southern District of New York, was brought by survivors of a
passenger. The latter had been a resident of New York, and had bought a ticket and boarded
defendant's airplane in New York. He died when the plane crashed over Massachusetts.
Three of the plaintiffs were alomiciled in Maryland; defendant was a Massachusetts corporation. Although there is no limit in Maryland and New York upon damages recoverable for
wrongful death, under the laws of Massachusetts such damages are limited to $15,000. Having
assumed that Massachusetts had an interest in applying its law to limit the damages recoverable against a domestic corporation, the court found that New York did not have an interest
19671
FALSE CONFLICTS
in light of present knowledge. 68 Moreover, if the forum decides that a
foreign state is interested in a case by looking to that state's conflicts
law, it subordinates its own choice of law to that of a foreign state, however archaic the latter may be.69 To do so frustrates the very goals of
governmental-interest analysis. Instead, as Currie himself admitted, 70 the
forum should assume final responsibility for deciding whether another
state is properly interested in the facts at issue. The forum ultimately
makes such a finding not by asking whether the foreign state declares
itself to be interested, but rather by asking whether-in light of forum
policy-that declared interest seems reasonable. Ultimately, the forum
imputes those policies to a foreign law which it could conceive a rational
foreign court adopting, were that foreign court deciding the case at hand.
To call such an evaluation "weighing" hardly advances conflict-of-laws
analysis.
Having inquired into the policies underlying the laws of relevant
contact states, the forum variously finds: (1) that only a single state is
interested in applying its law to the facts at issue, (2) that several states
in applying its law to a suit in which all parties were foreign residents. The court then
decided that Maryland similarly had no interest in applying its wrongful death statute to
a case involving domiciliaries of Maryland. However, the court did not consider the policies
behind the Maryland wrongful death statute, but rather referred to a conflicts provision of
the Maryland Code, MD.ANN. CODE art. 67, § 2 (1957), which had been enacted years before
Currie introduced his governmental-interest analysis to the choice-of-law world. For a
similar conflicts provision, cf. N.C. GEN. STAT. § 58-28 (1950). The same difficulties in
incorporating conflicts provisions in statutes occur on a federal level. For criticism of such
provision in the Federal Tort Claims Act, 28 U.S.C. § 2671 (1964), see Leflar, ChoiceInfluencing Considerations in Conflicts Law, 41 N.Y.U.L. REv. 267, 274 (1966). For more
successful conflicts provisions, Cf. MODFL ExEcuToN OF Wnas ACT § 7; UNIForM STOCK
CODE § 1-105; UNIFORMa SmALL LoAN LAW
crCIAI,
TRANSrER ACT § 22(); UNIORM Coi
§ 18 (Draft No. 6, 1936), reprinted in HUBACHEK, ANOTATIONS ON SMALL LoAN LAWS 194,
202-03 (1938).
68 "The policy of [a state may be] based upon an old common-law rule, whose purpose
is buried beyond hope of recall in antiquity. Indeed, it is very possible that the original
purpose of the policy has long since ceased to be meaningful in modem civilization of
twentieth-century America." Kramer, supra note 31, at 539; cf. Leflar, Choice-Influencing
Considerationsin Conflicts Law, 41 N.Y.U.L. Rav. 267, 278 (1966) ; R. Traynor, supra note
31, at 668, 673.
69In Noe v. United States Fid. & Guar. Co., 406 S.W.2d 666 (Mo. 1966), a Missouri
court applied a 1930 conflicts provision of the Louisiana Insurance Law, LA. Rav. STAT. §
22-655 (1950), restricting the right of direct action to suits brought in Louisiana for accidents
occurring there, to deny plaintiff a cause of action for an accident occurring in Louisiana.
See also Kelso, supra note 31, at 60-61.
70 "This is not to say that the Court cannot inquire at all into the validity of the
asserted interests. Certainly it can conclude that the asserted state policy has no demonstrable
existence. Similarly, it can determine that the asserted basis for an interest in the application
of a policy is too technical or attenuated to be of constitutional significance." Currie, The
Constitution and the Choice of Law: Governmental Interests and the Judicial Function,
26 U. CHI. L. Rav. 9, 80-81 (1958). See also Currie, The Disinterested Third State, 28 LAW &
CONTEM . PROB. 754, 784 (1963).
CALIFORNIA LAW REVIEW
[Vol. 55:74
are so interested, 71 or (3) that no contact state has an interest in the outcome of the suit.72
A.
Case of a Single Interested State
On an evening in June 1964, Lillian and Albert Clark drove from their
home in Lancaster, New Hampshire, to Littleton, New Hampshire, on a
short trip which took them briefly into Vermont. In Vermont, Albert's
alleged negligence caused an accident in which his wife Lillian was injured. On returning home, Lillian filed suit73 against her husband for
damages due to negligence. Under New Hampshire law" a host is responsible to guests for the exercise of ordinary care; under the laws of Vermont 76 a host is liable to his guests only for "gross and wilful negligence."
The New Hampshire court allowed Lillian Clark to recover under forum
law.
Within months of the Clark accident, Laura and Neil Landers, residents of Connecticut, were driving near Lynchburg, Virginia, when Neil's
alleged gross negligence caused an accident in which his wife Laura was
injured. On returning home, Laura filed suit 7" against her husband for
injuries sustained. Under Virginia law77 the common law disability of a
wife to sue her husband persists; under Connecticut law78 that disability
has been removed. The Connecticut court denied Laura Landers recovery
by applying Virginia law.
The facts in Clark v. Clark"0 and Landers v. Landers0 are identical
for purposes of conflicts law. Each involved a suit between residents of
the forum who, while driving cars registered and insured in the forum,
became involved in out-of-state accidents. Plaintiff in each case, as wife
and guest of defendant, would have recovered had the accident occurred
in the forum. In one case, however, the court granted recovery under
forum law by finding that the forum was the only state interested in the
suit; in the other case, an "accident of geography"8 1 led the court to deny
recovery by applying the law of a foreign state which had no interest at
all in the suit.
71 See text accompanying notes 91-143 infra.
72 See text accompanying notes 144-79 infra.
73 Clark v. Clark, 222 A.2d 205 (N.H. 1966).
74 Miltimore v. Milford Motor Co., 89 N.H. 272, 197 AtI. 330 (1938).
75 VT.STAT. AxN.tit. 23, § 1491 (1959).
76 Landers v. Landers, 153 Conn. 303, 216 A.2d 183 (1966).
77 Vigilant Ins. Co. v. Bennett, 197 Va. 216, 89 S.E.2d 69 (1955).
78 Ginsburg v. Ginsburg, 126 Conn. 146, 9 A.2d 812 (1939).
79 222 A.2d 205 (N.H. 1966).
80 153 Conn. 303, 216 A.2d 183 (1966).
81 Cavers, The Two "Local Law" Theories, 63 HARV. L. REV.822, 828 (1950) ; Morris,
The ProperLaw of a Tort, 64 HARV. L. REv. 881, 891 (1951).
19671
FALSE CONFLICTS
The court in Clark approached the choice-of-law issue by asking
whether more than one state was interested in the suit. New Hampshire,
as domicile of both parties, would clearly seem interested in the disposition of a suit involving one of its injured residents. The parties had
registered and insured their car under the laws of the forum and could
be presumed to have reasonably expected recovery to be governed by its
law.82 Furthermore, were the court to apply Vermont law, the burden of
uncompensated injuries would fall on New Hampshire.' Having determined that New Hampshire had an interest in applying its law to the
Clark case, the court then analyzed Vermont's contact with the suit. The
court assumed that Vermont, in enacting its guest statute, weighed the
importance of compensating injured guests against the importance of
84
protecting hosts from fraud and insurance companies from collusion.
The court further assumed that Vermont tipped the legislative balance
against guests to protect its own hosts and insurance companies, not to
protect persons resident, and corporations domesticated, in foreign
states. 85 Therefore, since the court confronted a case involving neither a
Vermont host nor a Vermont insurance company, it found that the Vermont guest statute was not intended to apply to the facts at issue-which
is another way of saying that Vermont had not interest in applying its law
to the case. In effect, the court faced a false conflict: Of two potentially
applicable laws, only one purported to encompass the facts at issue.86
82 "The expectations of the present parties, if they had any, as to legal liabilities and
insurance coverage for accidents, would be with reference to their own state, and they would
think in terms of lawsuits brought in New Hampshire courts under New Hampshire law,
if they thought about the matter at all." Clark v. Clark, 222 A.2d 205, 209 (N.H. 1966).
See Ehrenzweig, Guest Statutes in the Conflict of Laws-Towards a Theory of Enterprise
Liability Under "Foreseeable and Insurable Laws," 69 YALE LJ. 595, 603-04 (1960).
83 Currie, Survival of Actions: Adjudication versus Automation in the Conflict of Laws,
10 STAN. L. REV. 205, 219 (1958): "Underlying our 'free enterprise' choice is the possibility
that the state-the state concerned with the injured party-may have a residual responsibility:
if the system of free enterprise does not provide compensation, the injured person may
become a public charge." See also Currie, The Silver Oar and All That: A Study of the
Romero Case, 27 U. Cnr. L. REv. 1, 69 (1959) ; Comment, 54 CA=. L. Rav. 1301, 1323, 1327
(1966).
84 See Note, 35 IND. L.J. 338, 339-40 (1959).
85
It has been suggested that it would "constitute intermeddling so officious and unjustified as to amount to a denial of due process of law, or of full faith and credit to the laws
of a sister state" for a state to extend the application of its own protective laws to persons
"with whose welfare the state has no concern." Currie & Schreter, UnconstitutionalDiscrimination in the Conflict of Laws: Privileges and Immunities, 69 YALE L.J. 1323, 1324 (1960).
86
The case most often cited by Currie and others as illustrating the kind of false conflict
which exists when only one of several contact states has an interest in applying its law to
the facts at issue is Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743
(1963); Comments on Babcock v. Jackson, A Recent Development in Conflict of Laws, 63
CoiLur. L. REv. 1212 (Cavers at 1219, 1225, Currie at 1233, 1242) (1963). For other examples,
see Lauritzen v. Larsen, 345 U.S. 571 (1953) ; Zogg v. Penn. Mut. Life Ins. Co., 276 F.2d 861
CALIFORNIA LAW REVIEW
[Vol. 55: 74
The disposition of the Clark case seems singularly reasonable, particularly when contrasted with the outcome in Landers v. Landers. In Landers, the Connecticut Supreme Court applied foreign law to deny compensation to a resident who would have recovered had the accident occurred
within the forum.8 7 In doing so, it subverted the forum policy of allowing
injured wives to sue their husbands, without advancing any particular
policy of Virginia. Presumably," Virginia refuses to entertain suits between husband and wife for several reasons: first, to prevent marital
harmony from being disrupted by litigious disputes; and second, to pro80
tect insurance carriers from collusive suits between husband and wife.
Where, as in Landers, neither the family unit nor the insurance company
is indigenous to Virginia, none of its policies can be served by applying its
law. Since it was not argued that Virginia might be affected by the outcome of Landers, the choice-of-law problem before the court was not a
problem at all. It was a false conflict because the law of only one state
purported to apply. °
(2d Cir. 1960); Gordon v. Parker, 83 F. Supp. 40 (D. Mass. 1949); Emery v. Emery, 45 Cal.
2d 859, 289 P.2d 218 (1955); Grant v. McAuliffe, 41 Cal. 2d 859, 264 P.2d 944 (1953);
Estate of Lund, 26 Cal. 2d 472, 159 P.2d 643 (1945); Gordon v. Reynolds, 187 Cal. App.
2d 472, 10 Cal. Rptr. 73 (1960) ; Williams v. Pope Mfg. Co., 52 La. 1417, 27 So. 851 (1900) ;
Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365 (1957); Williams v. Southern
R.R., 128 N.C. 286, 38 S.E. 893 (1901); Thompson v. Thompson, 105 N.H. 86, 193 A.2d
439 (1963); Macey v. Rozbicki, 18 N.Y.2d 289, 221 N.E.2d 380, 274 N.Y.S.2d 591 (1966);
Dym v. Gordon, 16 N.Y.2d 120, 209 N.E.2d 792, 262 N.Y.S.2d 463 (1965); Davenport v.
Webb, 11 N.Y.2d 392, 183 N.E.2d 902, 230 N.Y.S.2d 17 (1962); Auten v. Auten, 308 N.Y.
155, 124 N.E.2d 99 (1954); Rubin v. Irving Trust Co., 305 N.Y. 288, 113 N.E.2d 424 (1953);
Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966) ; McSwain v. McSwain, 420 Pa. 86,
215 A.2d 677 (1966); Sumner v. Brown, 312 Pa. 124, 167 Ad. 315 (1933); Bernstein v. Lipper
Mfg. Co., 307 Pa. 36, 160 Ati. 770 (1932) ; Wilcox v. Wilcox, 26 Wis. 2d 617, 133 N.W.2d 408
(1965); Haumschild v. Continental Cas. Co., 7 Wis. 2d 130, 95 N.W.2d 814 (1959).
87216 A.2d 183, 184 (Conn. 1966). See also White v. King, 35 U.S.L. WEE 2279 (Md.
Nov. 11, 1966). Accord, Friday v. Smoot, 211 A.2d 594 (Del. 1966).
88
When a court inquires into the policies underlying the laws of foreign states, it may
find that those policies are either undeclared or anachronistic, in which case it is compelled
to impute policies to that foreign state which seem reasonable in light of forum perspective.
89 See discussion in LaChance v. Service Trucking Co., 215 F. Supp. 162, 166 (D. Md.
1963) ("ET~he more realistic reason for refusing to permit tort actions by a wife against her
husband [is] that they are likely to result in a collusive effort to mulct the husband's insurance
carrier ...."). See also Hancock, The Rise and Fall of Buckeye v. Buckeye, 1931-59: Marital
Immunity For Torts in Conflict of Laws, 29 U. Cm. L. Rrv. 237, 240 (1962).
90 Landers v. Landers was precisely the kind of case to which Currie was addressing
himself when he spoke of "false problems" in the conflict of laws. "These are 'conflict-of-laws
cases' according to a useful definition, which I have no disposition to disturb. That is, each
is a case in which potentially (or conventionally) significant factors are associated with more
than one state. They do not, however, present real problems, because they do not involve
conflicting interests of the respective states. It is perfectly clear what the result should be in
each. Either state, though approaching the case with no other purpose than to advance its
own interests, would reach that result." Currie, MarriedWomen's Contracts:A Study in Con-
FALSE CONFLICTS
19671
B.
Conflict Between Several InterestedStates
Avoided by Applying Laws of One
When the forum confronts a case having factual contact with more
than one state, it makes a two-fold inquiry. 1 First, it asks whether more
than one state has an interest in applying its law to the facts at issue. If
it finds that only one state has such an interest, it disposes of the choiceof-law issue by applying the law of that state. However, if the court
should find that more than one state has an interest in applying its law,
then it faces a second inquiry-namely, whether the laws of those interested states conflict when applied to the facts at issue.
The court may find that the laws of interested states do not conflict
92
because they are the same, in which case choice of law becomes moot.
Similarly, the court may find that the laws of both interested states,
though different, produce the same result when applied to the facts at
issue. 3 It is only when the laws of several interested states are different
and produce different results that the court faces the possibility of true
conflictf 4 Nonetheless, what appears to be a true conflict may be transformed into a false conflict in one of several ways: (1) By construing the
laws of one interested state narrowly, the court may find that it in fact
has no interest in applying its law to the multi-state case; (2) by analyzing the purposes underlying the laws of each interested state, the court
may find that the application of one law would simultaneously fulfill the
policies of both states; or (3) by "splitting" 5 the facts of the case into
independent issues, the court may find that each state has an interest in
applying its law to different issues, thus avoiding the true conflict which
would ensue if both laws purported to encompass the same issues.
flict-of-Laws Method, 25 U. Cmr. L. REv. 227, 251-52 (1958). It should be noted that the
Second Restatement of Conflicts would reach identical results in these "false conflict" cases.
Instead, however, of saying that only one state had an interest in applying its law to the facts
at issue, exponents of the Restatement would say that only one of the several contact states
had significant relationship with the case. RESTATE=ET (SEcoND), CoNuor oF LAWS § 379
(Tent. Draft No. 8, 1963). Although Currie disagreed with the draftsmen of the Restatement
in other areas, they would both analyze these false conflicts in the same way. See Currie, The
Disinterested Third State, 28 LAW & CONTENT. PROB. 754, 757 (1963). Although it might been
suggested that Virginia had an interest in the Landers litigation, see text accompanying notes
57-65 supra, that argument was not made. Absent such argument, the court faced a false
conflict. See text accompanying notes 256-71 infra.
91 See note 39 supra and accompanying text.
92 See text accompanying notes 180-204 infra.
93 See notes 205-34 infra and accompanying text.
94 For a case in which the court expressly disposed of the choice-of-law issue as a "true
conflict," see Johnson v. Johnson, 216 A.2d 781 (N.H. 1966).
95 See text accompanying notes 223-34 infra.
CALIFORNIA LAW REVIEW
1.
[Vol. 59: 74
FindingFalse Conflicts Through Narrow Construction
In cases in which there is a conflict between the different laws
0 7
00
of two interested states, the court can often "minimize" or "avoid
the conflict by narrowly construing one of the laws as inapplicable
to the multi-state case before it. Some commentators s treat this
secondary process of "avoiding" conflicts as conceptually different from
the preliminary process of identifying governmental interests. In contrast to "false conflicts," where only one state has an interest in the litigation, these "apparent" 99 conflicts are said to be cases where each state
appears to have an interest, until the court-through "reflection"' 0 0 and
"painstaking analysis"' 0 1-- discovers that one of the laws does not apply
to the multi-state case before it. In fact, however, "false" conflicts and
"apparent" conflicts differ not so much in kind as in the stage at which
the court determines that only one state has an interest in the multi-state
case at hand.
A case often cited to illustrate this process of avoiding conflicts is
0 2
Lauritzen v. Larsen."
Plaintiff, a Danish seaman temporarily within the
United States, contracted in New York to work for a ship of Danish
9
6The term seems to have been coined by Currie in The Constitution and the Choice of
Law: Governmental Interests and the Judicial Function, 26 U. Cmx. L. REv. 9, 83 (1958).
It has since gained certain currency. Cf. Vox MEBRw & TRAuTum, THE LAW OF MuLTisTATE
PROBLEMS 176 (1965); Leflar, Choice-Influencing Considerations in Conflicts Law, 41
N.Y.U.L. REv. 267, 290 (1966); Comment, 54 CALsF. L. REv. 1301, 1328 (1966).
97 CAVERS, THE CHOIcE-OP-LAw PROcEss 89 (1965).
98 CAVERS, THE CHOIcE-OP-LAw PROcESS 89 (1965); Cavers, Oral Contracts to Provide
by Will and the Choice-of-Law Process:Some Notes on Bernkrant, in PERSPECTIVES OP LAW:
ESSAYS rOR AUstin WAxEmA Scorr 38, 65 n.53 (Pound, Griswold & Sutherland eds. 1964).
Kay, Conflict of Laws: Foreign Law as Datum, 53 CA=. L. REV. 47, 63 (1965). Although
Currie originally divided all choice-of-law cases into only two categories-those in Which the
laws of interested states conflict, and those in which the law of interested states do not conflict
-he later added a third category of cases "in which it appears that each state would be...
justified in asserting an interest, but on reflection conflict is avoided by moderate definition of
the policy or interest of one state or another." Currie, The Disinterested Third State, 28 LAw
& CONTrMY. PROB. 754, 763 (1963) ; see Currie, Comments on Babcock v. Jackson, A Recent
Development in Conflict of Laws, 63 COLu'r. L. REv. 1212, 1233, 1242 (1963).
99 Currie, Comments on Babcock v. Jackson, A Recent Development in Conflict of Laws,
63 CoLuM. L. REv. 1212, 1233 (1963).
100 Currie, The Disinterested Third State, 78 LAW & CONTEMY. PROB. 754, 763 (1963).
101 Ibid.
102 345 U.S. 571 (1953). For a recent case which further restricts the applicability of
the Jones Act to avoid choice of law, see Tsakonites v. Transpacific Carriers Corp., 35 U.SI.
WEEx 2312 (2d Cir. Nov. 16, 1966). The Lauritzen case presented no real choice-of-law
controversy because narrow construction of the Jones Act left the Court without jurisdiction
to make a further choice of Danish law. On the other hand, Justice Jackson explicitly construed the Jones Act in light of the fact that a cause of action was shown to exist under
stipulated Danish law. Having construed the Jones Act narrowly, the Court found that Denmark was the only state with an interest in applying its law but at the same time denied
itself jurisdiction to apply that law. 345 U.S. at 575.
19671
FALSE CONFLICTS
origin and ownership. While sailing in Cuban waters, plaintiff was negligently injured during the course of his employment. On returning to the
United States, he filed suit under the Jones Act which provided that "any
seaman who shall suffer personal injury in the course of his employment
... may... maintain.., an action for damages ... with the right of trial
by jury.... ."o3 The statute, on its face, seemed to provide plaintiff with
a cause of action. In effect, the laws of Denmark and the United States,
which differed on the question of jury trial, both appeared to apply. The
Court, however, speaking through Justice Jackson, found that it was not
the intent of Congress to protect seamen whose contact with the United
States was purely transitory. The Court avoided potential conflict between the apparently relevant laws of the United States and Denmark
by finding the former inapplicable to the facts at issue.
The disposition of Lauritzen can be viewed in different ways. One
could say that the Court made a preliminary determination that both
Denmark and the United States were interested in the suit and then,
subsequently, eliminated the latter interest by finding the Jones Act inapplicable. Or, one could simply say that the Court found Denmark
to be the only state interested in applying its law to the case at hand.
The difference between the two processes is one of degree only. Where it
is clear that only one state has an interest in applying its law, a court
can eliminate the other state from consideration. In more difficult cases,
where several states seem to have prima facie interest, a court may expressly eliminate one of those potentially interested states by construing
its policies as to the multi-state case narrowly." 4 The difference, however,
is not between false and avoidable conflicts, but rather between false conflicts which are easy and false conflicts which are difficult to resolve. In
each case a court is deciding in light of forum policy that certain state
contacts are to be given no choice-of-law significance. 0 5
103 41 Stat. 1007 (1920), 46 U.S.C. § 688 (1964) (Emphasis added.)
104 Grand Trunk R.R. v. Wright, 21 F.2d 814 (6th Cir. 1927); LaChance v. Service
Trucking Co., 215 F. Supp. 162 (D. Md. 1963); Gordon v. Parker, 83 F. Supp. 40 (D. Mass.
1949) ; Bernkrant v. Fowler, 55 Cal. 2d 588, 12 Cal. Rptr. 266, 360 P.2d 906 (1961) ; Gordon
v. Reynolds, 187 Cal. App. 2d 472, 10 Cal. Rptr. 73 (1960); Davenport v. Webb, 11 N.Y.2d
392, 183 N.E.2d 902, 230 N.Y.S.2d 17 (1962); Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99
(1954) ; Detroit & Cleveland Nar. Co. v. Hade, 196 Ohio 464, 140 N.E. 180 (1922).
105 Indeed, even Currie in describing his three categories of cases-false problems, conflicts to be avoided through restrained construction, and true conflicts-has said, "[T]he three
classes of cases are a continum with no clear internal boundaries." Currie, The Disinterested
Third State, 28 LAW & CONTEMP. PROB. 754, 764 (1963). See Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L. REv. 267, 289-90 (1966) ("[Minimization of conflicts problems] will not be useful in cases where one state's contacts with a set of facts are
few and relatively insignificant as compared with those of another state whose law is different;
in that situation a choice of law still has to be made even though the choice may be a comparatively quick one. That is an easy conflicts case, not a false one.") ; Leflar, Constitutional
CALIFORNIA LAW REVIEW
2.
[Vol. $5:74
Finding of False Conflicts by Applying Law of One Interested State
to Serve Interests of Both
In cases in which several states with different laws are interested in
the facts at issue, a court can often satisfy the policies underlying both
laws by applying one of them. 1 6 A Wisconsin case, Petersonv. Warren,07
is in point. John Hogenson, a resident of Minnesota, registered and insured
trucks in that state for use in his construction business extending throughout Minnesota and Wisconsin. In July 1958, after he had accumulated
a certain number of driving violations, his insurer, Home Insurance Company, filed proof of financial responsibility with the state as required by
Minnesota law. In October of the same year, Harold Warren, one of
Hogenson's employees and a resident of Wisconsin, was driving in Wisconsin with Hogenson's permission when his alleged negligence caused an
accident injuring Vernon Peterson, a passenger in his truck and a resident
of Wisconsin. In a Wisconsin suit by Peterson against Warren and
Hogenson's insurance carrier, Home Insurance asserted the policy defense of having received no notice of the accident from Hogenson. Under
Minnesota law," 8 insurers waive all defenses for amounts up to 10,000
dollars on liability policies issued by them to persons for whom they have
filed statements of financial responsibility. Under Wisconsin law, the
insurer can always defeat liability by showing that notice provisions of
the policy were violated by the insured. On the dubious ground that Minnesota was the place of contracting, the Wisconsin court granted a Wisconsin resident recovery for an accident occurring in Wisconsin by applying
the Minnesota rule of strict liability.
The Peterson court found that both Minnesota and Wisconsin were
interested in applying their laws to the facts at issue. Wisconsin clearly
Limits on Free Choice of Law, 28 LAW & CoNTEM,. PROB. 706, 725 (1963); R. Traynor,
Is This Conflict Really Necessary?, 37 TExAs L. REv. 657, 673, 688 (1959). Currie has
suggested that only the laws of "interested" states may be applied to facts at issue without
violating constitutional standards of due process. Currie, The Constitution and the Choice
of Law: Governmental Interests and the Judicial Function, 26 U. Cm. L. REy. 9, 16, 24
(1958). To the extent, however, that the distinction between "interested" and "non-interested"
states-between true and false conflicts-is a continuum rather than a line, the constitutional
demarcation also assumes the form of a shifting line on a spectrum. Just as there are easy
and difficult conflicts cases, there are'cases where the application of a state's law is clearly
unconstitutional (Home Ins. Co. v. Dick, 281 U.S. 397 (1930)), and other cases where that
constitutional determination is more difficult (Bernkrant v. Fowler, 55 Cal. 2d 588, 360 P.2d
906, 12 Cal. Rptr, 266 (1961). See generally VoN MEERNm & TRAuTmAx, THE LAW o MumSTATE PRnOBLEMS 327-28 (1965).
10
6Bernkrant v. Fowler, supra note 105; McSwain v. McSwain, 420 Pa. 86, 215 A.2d
677 (1966). Cf. R. Traynor, supra note 105, at 673-74 (1959).
107143 N.W.2d 560 (Wis. 1966).
10 8 imN. STAT. ANN.§ 170.40 (1960).
19671
FALSE CONFLICTS
had a policy-reflected in its common law-of compensating its residentvictims"0 9 for accidents occurring within the state. But Wisconsin apparently had a still stronger policy of protecting insurance companies
from lack of notice by the insured. For in balancing the importance of
protecting accident victims from financially irresponsible drivers against
the importance of protecting insurance companies from contractual infractions, Wisconsin weighted the latter policy more heavily. Minnesota,
on the other hand, was found to have a policy of protecting the public at
large from the reckless driving of those operating cars registered in
Minnesota, whether that driving occurred inside or outside the state."1
Minnesota apparently had a somewhat weaker policy of protecting insurance companies from contractual infractions by the insured. For in
balancing the two policies, Minnesota allowed the policy of protecting
accident victims from the financially irresponsible to prevail."'
The Peterson court found that Minnesota rather than Wisconsin law
governed rights under Hogenson's insurance contract. Analytically, however, the court engaged in a two-step process: First, it construed the
Minnesota policy favoring compensation to encompass the multi-state
case at hand; second, it interpreted the Wisconsin policy of protecting
insurance companies as one designed to benefit only domestic companies.
Since the insurance contract at issue had been issued by a Minnesota
agent in Minnesota, Wisconsin's protective policy was not applicable.
Stated differently, Wisconsin was found to have no interest in extending
109 "It is the policy of our law to provide compensation to a person when he has been
negligently injured." Wilcox v. Wilcox, 26 Wis. 2d 617, 630, 133 N.W.2d 408, 415 (1965).
210 As Currie would have said, Minnesota had an "altruistic interest" in applying its
law to an out-of-state event. Currie & Schreter, Unconstitutional Discrimination in the
Conflict of Laws: Privileges and Immunities, 69 Y=r.a LJ. 1323, 1361 (1960): "It is not
lightly to be assumed that the Constitution prohibits a state from adopting a humane and
altruistic policy. Moreover, such a policy might well serve the selfish interests of the state if
those interests are evaluated from a long-range point of view. In general, withholding the
benefits of local laws from citizens of other states will invite retaliation, to the detriment
of local citizens .... The proposition that a state violated the due-process clause when it applies
its law in a situation in which it has no interest in doing so ...must be qualified: an 'altruistic
interest' in the application of the law may be an adequate defense against attack based on the
due-process clause." When Currie says a state has an "altruistic interest" in applying its law to
a multi-state situation, he is really saying that the state is justified in applying its law even
though it has no tangible governmental interest in the suit. To speak of "altruistic interests" in
cases where a state has no real governmental interest is to admit that some cases cannot be consistently explained in terms of governmental-interest analysis. In reality, the language of
"altruistic interests" is subterfuge for justifying the application of the "better law" to achieve
a "just result," when such application cannot be explained in terms of governmental interests.
See Currie, Notes on Methods and Objectives in the Conflict of Laws, 1959 DuxE L.J. 171,
180.
"'lThe Minnesota policy of compensating victims was allowed to prevail over its policy
of protecting insurance companies only up to amounts of $10,000.
CALIFORNIA LAW REVIEW
[Vol. 55: 74
the "protective arm"" 2 of its legislation to Home Insurance Company. 18
However, since Wisconsin still had a policy of compensating its residentvictims for accidents occurring within the state," 4 the court simultaneously fulfilled the interests of both states in compensating Peterson by
applying the Minnesota rule of strict liability. Although only Minnesota
was interested in applying its law of insurance defenses, both states were
interested in applying their own tort to the multi-state case. Through
the "ordinary processes of construction and interpretation,""' the
court eliminated Wisconsin as an interested state in the only relevant area in which the laws conflicted-the area of insurance defenses. That construction left both states with a common policy of
compensation which could be fulfilled by applying the Minnesota rule of
strict liability." 6
Unlike the narrow construction in Lauritzen which revealed the
existence of only one interested state, narrow construction in Peterson
revealed the existence of only one state with a policy concerning the
multi-state issue of insurance defenses, but left both states with a residual
and common policy of compensating plaintiffs. The Court in Lauritzen
found that of two contact states with differing laws, only one was interested in having its law applied; the court in Peterson found that even
though both contact states were interested in having their laws applied,
their laws were the same with respect to the multi-state case before the
court ."
112 See
3
note 267 infra.
11 The incidence of any state's law on a given factual situation may differ depending on
whether those facts are wholly domestic to it or whether they contain foreign elements.
Kramer, Interests and Policy Clashes in Conflict of Laws, 13 RUTGERS L. REV. 523, 532 (1959).
114 See note 109 supra.
115 CAVERS, T E CHiOICE-OP-LAw PROCESS 88-113 (1963).
116 See also Williams v. Rawlings Truck Line, Inc., 357 F.2d 581 (D.C. Cir. 1965), in
which the court held: "In sum, this case presents a classic 'false conflicts' situation. Adoption
of the New York doctrine of estoppel will further the interests of New York, but will not
interfere with any of the articulated policies of the District of Columbia." Id. at 586. The
court commented in a footnote that "The District, moreover, may share New York's interest
to the extent that maintaining the New York registration records with the maximum degree
of accuracy would benefit the District by enabling its police and residents to identify owners
of New York vehicles in use within the District." Id. at 586 n.11.
117 It has been suggested that there may be a constitutional distinction between cases
like Lauritzen where only one state is interested in having its law applied, and cases like
Peterson where each contact state is interested in having its law applied. See Currie, The
Disinterested Third State, 28 LAW & CONTEMI. PROB. 754, 764 (1963). Application of a
"disinterested" state's law is said to be a denial of due process, Home Ins. Co. v. Dick, 281
U.S. 397 (1930), while application of each interested state's law is said to be constitutionally
justified, even though the Court may choose to construe one of the laws as inapplicable.
Currie, The Constitution and the Choice-of-Law: Governmental Interests and the Judicial
Function, 26 U. CBi. L. REv. 9, 16, 24 (1959). However, if the Lauritzen Court would have
been constitutionally precluded from applying the Jones Act because the United States was
19671
FALSE CONFLICTS
It should be noted, however, that governmental-interest analysis did
not dictate the decision in Peterson. The court could instead have
characterized the case as a "false conflict" by finding that'Minnesota had
no interest in having its liberal rule of recovery applied to an out-of-state
accident involving foreign residents. In other words, in balancing the
need to protect insurance companies from policy infractions against the
need to protect accident victims from the financially irresponsible, Minnesota might have allowed the policy of compensation to prevail to
protect its own residents for accidents occurring within the state. Since
neither a Minnesota resident nor a Minnesota accident was involved in
Peterson, the court might well have found that Minnesota law was not
intended to encompass such an action. Stated differently, the court might
have found that Minnesota had no interest in applying its law of strict
liability to the multi-state case at hand. The argument that Minnesota
had an "altruistic interest" in extending its standard of strict liability
proves too much; for the court could just as rationally have found that
Wisconsin had an "altruistic interest" in extending its rule on policy
defenses to foreign insurance companies. Facing a variety of possible
"false conflicts," the court ultimately characterized the case as it did to
reach a "just result," one which generally conformed to the expectations
of the parties.1 8 Governmental-interest analysis is a method for solving
choice-of-law problems. It can indicate various paths which a court might
found to have no interest in that litigation, then the Peterson court would have been similarly
precluded from applying Wisconsin law concerning insurance defenses because Wisconsin was
found to have no interest in applying its insurance law to that multistate issue. Although Wisconsin had a residual policy of compensation, constitutional application of that common law
principle does not constitutionally justify applying Wisconsin insurance law to a case it does
not purport to encompass. On the other hand, to the extent that the difference between true
and false conflicts is the difference between difficult and simple choice of law, VoN MEHEN
& TRA umr,
TnE LAw Os MULTISTATE PROBLEMS 327-28 (1965), the constitutional distinction between them is also one of degree only. See note 105 supra. To the extent that elimination of the United States as an interested state was simple in Lauritzen, while the elimination
of Wisconsin's insurance law in Peterson required "painstaking analysis," supra note 100,
then to that extent there may be a constitutional distinction between the two cases.
118 Since insurance premiums were rated to cover activities in both Wisconsin and Minnesota, Home Insurance was in no position to complain of "surprise." Peterson v. Warren, 143
N.W.2d 560, 562 (Wis. 1966). For a discussion of the doctrine of the "just result," see Leflar,
Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L. RaV. 267, 295-96 (1966)
("[j]ustice in a particular case calls for individualization of decision, a choice of the better
party in the litigation rather than the better law.") ; Lorenzen, Territoriality,Public Policy,
and the Conflict of Laws, 33 YALE LJ. 736, 748 (1924) ("The general problem is, therefore,
always the same: What are the demands of justice in the particular situation; what is the
controlling policy?"); Siegelman v. Cunard White Star Ltd., 221 F.2d 189, 206 (2d Cir.
1955)) ("I grant that, in this context, I am stressing the need to do justice in particular
instances. I do so unashamedly.") (Frank, J., dissenting). For a case in which the court
specifically chose forum law as "better law" than foreign law, see Clark v. Clark, 222 A.2d
205, 210 (N.H. 1966).
CALIFORNIA LAW REVIEW
[Vol. 55: 74
follow in resolving conflicts problems, but it cannot tell the court which
path to choose. That choice is one which the court must make in terms
of criteria which governmental-interest analysis does not purport to
19
supply.1
3. FindingFalse Conflicts By "Splitting" Case Into Independent Issues
In cases in which several states with different laws are interested in
the facts at issue, a court can avoid true conflict by "splitting' 12 0 the facts
of the case into independent issues and by selectively applying the laws
of each interested state to different issues. Proponents of governmental12 1
interest analysis find this process of "splitting" very much in order.
'For if laws are applied to a multi-state case only when some purpose
underlying them can thereby be served, it may well happen that the
policies of one state require application of its law to only one issue in a
case while the policies of another contact state can be fully sustained by
applying its law to a different issue. It should be noted that the same
process of splitting can occur under the rules of the Restatement, either
by applying the substantive law of a foreign state to one issue in a case
122
and the procedural law of the forum to another issue of that same case,'
or by having the forum apply foreign law to one issue of a case and its
own law to another issue of that case on the ground that the foreign law
28
would offend its public policy.
119 For a discussion of normative criteria for solving choice-of-law problems see CAVERs,
TnCHOICE-or-LAW PROCESS 114-38 (1965) in which Professor Cavers proposes the adoption
of what he calls "principles of preference." See also Cheatham & Reese, Choice of the Ap.
plicable Law, 52 CoLOm. L. R v.959 (1952).
120 See note 225 infra.
121 CAvERS, I= CHOICE-OF-LAW PROCESS 40-43 (1965); Coox, THE LoGICAL AND LEGAL
BASES oF THE CoN _LcT or LAws 431 (1942); Currie, Comments on Babcock v. Jackson, A
Recent Development in Conflict of Laws, 63 COLrum. L. REv. 1212, 1234 (1963); Harper,
Policy Bases in the Conflict of Laws: Some Reflections on the Rereading of Professor Lorenzen's Essays, 56 YALE L.J. 1155, 1163 (1947); Leflar, Choice-Influencing Considerations
in Conflicts Law, 41 N.Y.U.L. Rav. 267, 290 (1966): "[Sleverability of issues is clearly
desirable. The only purpose served by requiring every aspect of a tort to be solved by the
laws of one jurisdiction is administrative simplicity .... But . . .the significant contact, the
governmental interests, and the social policies that relate to one issue may be very different
from those that relate to another. Separability of issues is essential if we are not to have
automation in choice of law." For a case discussing the splitting of issues, see Babcock v.
Jackson, 12 N.Y.2d 473, 484, 191 N.E.2d 279, 285, 240 N.Y.S.2d 743, 752 (1963), in which
the court held that the guest-host relationship should be determined by the domicile of
the parties and the standard of care by the place where the accident occurred.
1 22
RESTATEm=,
Cal. 2d 859, 264 P.2d
of Laws, 42 YALE L.J.
123 REsTATEmENT,
ComcrT or LAws §§ 584-85 (1934). Cf. Grant v. McAuliffe, 41
944 (1953). See Cook, "Substance" and "Procedure" in the Conflict
333 (1933).
Co
cTror LAws § 612 (1934). Cf. Dalton v. McLean, 137 Me. 4,
14 A.2d 13 (1940). See generally, Paulsen & Sovern, "Public Policy" in the Conflict of
Laws, 56 CoLum. L. REv.969 (1956).
19671
FALSE CONFLICTS
In Williams v. Rawlings Truck Line, Inc.,2 the court avoided true
conflict between the laws of New York and the District of Columbia by
splitting the case into two issues and disposing of them separately under
the laws of each state. As a threshold determination, the court found both
New York and the District to be interested in applying their laws to the
facts at issue. New York was interested in applying its law to allow recovery as a means of enforcing its registration laws., 5 The District, on
the other hand, had an interest in applying its law to a case involving an
accident and uncompensated injuries within the District. The laws of
each state were different, for District law would permit Goldberger to
deny ownership, while New York law would estop him from doing so.
The court nonetheless transformed what looked like a true conflict into
a false conflict by splitting the case into two separate issues: the issue of
ownership, and the issue of vicarious liability.
The court applied New York law to the issue of ownership on two
grounds. First, it found that the District had no interest in applying its
rule allowing registered owners to prove passage of equitable title, because
that rule was "designed to protect persons and property of District residents ....
,
Since no party to the dispute was a resident of the District,
"the District [was] not in position to assert an interest in the application
of its law to [the] case; such an application would not further the policies
underlying the District's law.''
7
Second, the court found that New York
did have an interest in applying its rule of estoppel, because that rule was
designed to compel compliance with New York registration laws. In the
words of the court:
New York, on the other hand, has a substantial interest in the application of its rule of estoppel to this case. This New York doctrine
is designed to enforce by its in terrorem effect the vehicle registration
laws of the state, and thereby to maintain the integrity and accuracy
of that state's vehicle registration system. Fulfillment of this basic
goal could require extra-territorial application of the estoppel doctrine.
Otherwise New York residents would improperly transfer their cars any
time the car was to be permanently, or even temporarily, removed from
the state without fear of liability; ultimately, such a circumstance
might lead to a significant impairment of New York's record-keeping
system.2 S8
Having decided that New York had an interest and that the District
lacked an interest in applying its law to the issue of ownership, the court
had no difficulty in choosing New York law.
F.2d 581 (D.C. Cir. 1965).
126 Id. at 586.
16Id.
at 585.
124 357
127Ibid.
28
1 Id. at
585-86.
CALIFORNIA LAW REVIEW
[Vol. 55:74
As part of an alternative ground for applying New York law to the
issue of bwnership, the court indicated that the District might have an
interest in the issue of registration to the extent that proper registration
would enable "its police and residents to identify owners of ... vehicles
in use within the District."'129 However, the court also found that this
interest in proper registration could be served by applying the strict New
York rule of estoppel. Although the District finds it more important to
allow its own registered owners to prove passage of equitable title than
to enforce its registration laws, it might not hesitate estopping foreign
registered owners from denying ownership if doing so would enforce
proper registration of foreign vehicles operating within the District. Application of New York law would serve the purposes of New York and
the District in enforcing proper registration without violating any District
policy of protecting its registered owners.18
The court in Williams explicity applied New York law to the isstle of
ownership. By remanding the case for a new trial, the court was not
called upon to decide the question of which law to apply to the issue of
vicarious liability. However, in reversing the directed verdict in favor of
Goldberger, the court formed standards to guide the lower court in resolving that choice-of-law problem. First, the court noted certain similarities between the New York and District owner-consent statutes and
indicated that choice of law would become moot were those laws found
to be the same. 3' Assuming the laws to be different, however, the court
recognized the possibility of true conflict between the laws of New York
and the District. Without deciding that issue, the court suggested further
that true conflict might be avoided if the New York vicarious liability
statute were construed as having no extra-territorial effect. 1 2 New York
law would then be applied to the issue of ownership and District law
applied to the issue of vicarious liability without the two laws coming into
conflict.
Two points should be noted about the way the court in Williams regarded the choice-of-law issue concerning vicarious liability. For one
thing, the court too hastily assumed that choice of law would become
moot if the laws of New York and the District were found to be the
same. 133 For another thing, the court too hastily decided that the issue of
vicarious liability could be resolved under a different law from the issue of
ownership.
129 Id. at 586 n.11.
130 See text accompanying notes 106-19 supra.
131357 F.2d at 587.
132 Id.at 585.
133 See text accompanying notes 198-204 infra.
19671
FALSE CONFLICTS
It has been recognized by commentators 134 and courts"3 5 alike that
"separate issues in the same case may call for the application of the laws
of different states." 3 6 In the now famous case of Babcock v. Jackson,'3 7
the court avoided true conflict between the laws of Ontario and New
York by isolating guest-host liability for treatment under New York law
and standard-of-care for treatment under Ontario law. Nonetheless, the
practice of severing issues for separate treatment under different laws produces grotesque results if exercised indiscriminately.'
Whether such
splitting is appropriate depends on how closely the issues of a case are
related.3" The court in Williams treated the issues of ownership and vicarious liability as if they were independent of one another. In fact, "ownership" is not an isolated concept under New York law, but rather one which
has meaning only within the New York Traffic and Vehicle Law. The New
York concept of ownership was framed by the courts of that state for the
purpose of defining the New York standards of vicarious liability. 40 The
134 See authorities cited in note 121 supra.
135 Lilligraven v. Tengs, 375 P.2d 139 (Alaska 1962); Grant v. McAuliffe, 41 Cal. 2d
859, 264 P.2d 944 (1953); Thompson v. Thompson, 105 N.H. 86, 193 A.2d 439 (1963);
Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 172 N.E.2d 526, 211 N.Y.S.2d 133 (1961).
136 GOODRICH, Co
IcT Or LAWS § 95, at 176 (Scoles ed. 1964).
137 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963).
138 See note 227 infra.
139 Leflar, Constitutional Limits on Free Choice of Lawr-28 LAW & CoNTE31fP. PROB.
706, 728
(1963).
140 The court in Williams cited three cases for the proposition that the New York rule
estopping registered owners (as defined by N.Y. VEH. & TaAF. LAw § 420): from denying
ownership was designed as a penal measure for enforcing proper vehicle registration, and
not for the purpose of finding a "deep pocket" or solvent defendant for the injured plaintiff.
Phoenix Ins. Co. v. Guthiel, 2 N.Y.2d 575, 141 N.E.2d 904, 161 N.Y.S.2d 867 (1957) ; Switier
v. Aldrich, 307 N.Y. 56, 120 N.E.2d 159 (1954); Shuba v. Greendohner, 271 N.Y. 189, 2
N.E.2d 536 (1936). It is noteworthy that all three cases involved New York resident plaintiffs
suing for injuries under the New York vicarious liability statute. In.Shuba and Switzer, plaintiff was allowed to recover under that vicarious liability statute, N.Y. VEA. & TAP. Law
§ 388, formerly § 59, by invoking the estoppel 'rule. In Phoenix, a case whose value as
precedent has since weakened, Musso v. American Lumbermen's Mut. Cas. Co., 14 Misc. 2d
450, 178 N.Y.S.2d 377 (Sup. Ct. 1958), an insurance company was sued on a policy in the
name of the registered owner and was allowed to rebut the presumption of ownership to
escape liability on the policy. However, there is nothing to indicate that the registered owner
in Phoenix was financially incapable of paying for the New York plaintiff's injuries himself.
Other New York cases show that the estoppel rule is selectively employed when it advances
recovery under the vicarious liability statute (Morgan v. Termine, 2 Misc. 2d 109, 149
N.Y.S.2d 42 (Sup. Ct. 1956); Elfeld v. Burkham Auto Renting Co., 299 N.Y. 336, 87 N.E.2d
285 (1949); Reese v. Reamore, 292 N.Y. 292, 55 N.E.2d 35 (1944)) and is disregarded when
recovery can only be allowed by showing passage of equitable title (Schomer v. Andy LeGrow,
Inc., 198 N.Y.S.2d 974 (Sup. Ct. 1960); Zeller v. Preferred Mut. Fire Inc. Co., 9 Misc. 2d 855,
168 N.Y.S.2d 260 (N.Y. Munic. Ct. 1957)). Most commentators admit that the efficacy of
governmental-interest analysis depends on the ability of courts to identify and analyze policies
underlying the laws of both the forum and foreign states. Kramer, supra note 113, at 532.
It is therefore interesting to note the singular failure on the part of a learned court in Williams
CALIFORNIA LAW REVIEW
[Vol. 55:74
New York concept of ownership is as much a part of its standard of
vicarious liability as the District standard of liability is to its treatment
of ownership. To apply one is to apply the other.
If the court found that New York's vicarious liability law was not to
be given extra-territorial effect, then it should not have given the New
York concept of ownership extra-territorial effect."' For, in applying
the New York rule of ownership, the court effectively let the New York
standard of liability in by the back door. To say that the Williams court
should have applied either New York or District law as a whole to all
the facts of the case is not to say that it faced a true conflict. If it found
that New York law was not to be given extra-territorial effect, then it
could have applied the law of the District as the single jurisdiction with
an interest in the suit. If it found that New York law could be applied
extra-territorially to a suit involving one of its residents, then it had two
alternatives for avoiding true conflict. It could have found that the District had no interest in a suit involving none of its residents, in which case
it would have applied the law of New York as the single interested
state.1' Or, alternatively, if it found that the District was also interested
in applying its law because the accident occurred within its jurisdiction,
the court might have applied New York law as one which would simultaneously satisfy the policies underlying the laws of each state. 48
to isolate the policies underlying the New York law of registration. The "workability" (Currie,
The DisinterestedThird State, 28 LAw & CoNTaa. PROB. 754, 756 (1963)) of governmentalinterest analysis for the finding of false conflicts is no greater than the sophistication of the
court employing it. For a discussion of the ability of courts to employ such analysis, see
EH .NzwEiG,CouNc'r Or LAWS §§ 122-23, at 350-51 (1962); Ehrenzweig, Choice of Law:
Current Doctrine and the "True Rules," 49 CA=x. L. REv. 240, 241 (1961) ; Hill, Governmental Interest and the Conflict of Laws-A Reply to Professor Currie, 27 U. CM. L. REV.
463, 469 (1960); Note 49 CALw. L. REv. 962 (1961). For judicial skepticism about the
propriety of governmental-interest analysis, see Dym v. Gordon, 16 N.Y.2d 120, 209 N.E.2d
792, 262 N.Y.S.2d 463 (1965) (opinion by Desmond, C.J., dissenting).
141 Prior to the Williams case, it had been repeatedly held that the New York ownerconsent statute was not to be given extra-territorial effect. Cherwien v. Geiter, 272 N.Y. 163,
5 N.E.2d 185 (1936); Gavin v. Malherbe, 146 Misc. 51, 261 N.Y. Supp. 373 (Sup. Ct. 1932),
aff'd, 240 App. Div. 779, 266 N.Y. Supp. 879 (1933), aff'd, 264 N.Y. 403, 191 N.E. 486 (1934).
The owner-consent statute itself (N.Y. VnH. & TRAr. LAW § 308, formerly § 59) was amended
in 1958 to apply only to "vehiclets] used or operated in this state." Nonetheless, the Williams
court felt that the New York rule against giving the owner-consent statute extra-territorial
effect might have changed since the decision in Babcock v. Jackson, 12 N.Y.2d 473, 191
N.E.2d 279, 240 N.Y.S.2d 279 (1963). However, in a post-Babcock case involving a New
York owner giving a New York resident permission to drive his car, where the driver injured
a New York resident-plaintiff while driving in New Jersey, a New York court applied New
Jersey law to the question of vicarious liability by finding that the New York law bad no
extra-territorial effect. Fornaro v. Jill Bros., Inc., 22 App. Div. 2d 695, 253 N.Y.S.2d 771
(1964), aff'd, 15 N.Y.2d 819, 205 N.E.2d 862, 257 N.Y.S.2d 938 (1965).
142 See text accompanying notes 73-90 supra.
143 See text accompanying notes 106-119 supra. It can be argued that both New York
FALSE CONFLICTS
19671
C.
Case of the DisinterestedForum
Governmental-interest analysis is premised on the theory that only
the laws of those states with an interest in an adjudication should be
applied to the facts at issue. 1" The adoption of that premise generates
two closely related problems: first, the problem of choosing a law when
the forum finds it has no interest in applying its own law; and second,
the problem of choosing a law when the forum finds that no contact state
has an interest in applying its law.
1. DisinterestedForum Facing True Conflict Between Other Interested
States
The "minimum contacts"' 145 theory of jurisdiction precludes a court
from hearing a case with which it has no significant relationship. Were
that the exclusive theory on which a court could base its jurisdiction, no
court would be competent to decide a case in which it was "disinterested.1 140 For to say a court is disinterested in a case is to say that it
has no contact which would justify its invoking forum law. Courts in the
United States, however, are justified in taking in personam jurisdiction
not only over those claims with which they have minimum contacts, but
also over those actions in which interested parties are properly before the
court.Y47 The "transient rule" of personal jurisdiction permits an action
to be brought wherever the plaintiff can "catch" the defendant, with the
result that the forum may be called upon to decide a case in which it has
no interest. 4
Depending on how broadly the forum interprets domestic policies, it
can always find some "interest" in the litigation, such as an interest in
providing a judicial remedy for parties invoking its adjudicative machinery.149 However, it is one thing to say that the forum has an interest
and the District have a common policy of compensation in such multi-state situations, New
York as a way of buttressing its registration laws, and the District as a way of providing
a fund to reimburse its residents for the cost of treating non-resident victims. Through the
"ordinary processes of construction and interpretation," the court could eliminate the single
area in which the laws of the two jurisdictions might conflict-the area of ownership by
estoppel-by finding that the District has no interest in applying its lenient ownership doctrine to a non-resident with a car registered out-of-state.
344 See Currie, The Disinterested Third State, 28 LAw & CoNTEmp. 754, 764-65 (1963).
145 International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
14
sVoxr Aftmm & TRAunm", TnE LAw OF MULTISrAT PROBLEmS 601 (1965). See
also EmaxtzwEIG, ColraucT or LAWS 73 n.12 (1962).
14 7
EmmNZWErG, Col mcr oP LAWS 103-07 (1962).
148 See Ehrenzweig, The Transient Rule of Personal Jurisdiction: The "Power" M:th
and Forum Conveniens, 65 YALE L.J. 289 (1956); see also Coox, THE LoGIcAL AN LGa.
BASES or Ta
Coar macT Or LAWS 100 (1942).
149 For a broad view of governmental interests, see Hill, supra note 140, at 490-92.
CALIFORNIA LAW REVIEW
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in entertaining a particular suit; it is another thing to say that it has an
interest in applying its law to that suit. When the forum finds that none
of the policies underlying its law would be served by applying that law to
the facts at issue, it faces a choice-of-law problem.
The choice-of-law problem facing the forum may be a false one. If
the disinterested forum finds that only one foreign state has an interest
in applying its law to the instant suit, it should apply that law.150 If the
forum finds that two or more foreign states have an interest in applying
their law to the same suit, it has three alternatives: (1) Through "moderate and restrained interpretation," it may find that only one of the laws
in fact applies; 51 (2) it may find that by applying the law of one interested state it fulfills the policies underlying the laws of both; 15 2 or (3)
it may split the facts of the case into independent issues to be selectively
resolved under the respective laws of each state. 5 '
In the Williams case, the court of appeals for the District of Columbia
implied that it was a disinterested forum mediating a controversy between
New York and New Jersey." Without subjecting New Jersey law to the
same kind of policy analysis which it applied to District law, 55 the court
found that New Jersey had no interest in providing plaintiff with recovery.
Since New York had such an interest and since New Jersey was found
to have none, the court applied New York law. However, the court could
also have found that the New Jersey rule of allowing registered owners to
prove passage of equitable title was designed to. protect New Jersey
registered owners.5 6OIn a case involving a New York registered owner
and a New Jersey victim, New Jersey would arguably have a predominant
interest in compensating the plaintiff. Futhermore, that interest could
be validly served by applying New York law to the issues of ownership
and vicarious liability. In each case, the court would avoid direct conflict
by applying New York law.
15OMatson v. Bauman, 139 Minn. 296, 166 N.W. 343 (1918); Auten v. Auten, 308
N.Y. 155, 124 N.E.2d 99, 140 N.Y.S.2d 155 (1954); Detroit & Cleveland Nay. Co. v. Hade,
196 Ohio 464, 140 N.E. 180 (1922).
151 See text accompanying notes 96-105 supra.
152 Currie, Comments on Babcock v. Jackson,A Recent Development in Conflict of Laws,
63 CoLuh. L. Rxv. 1212, 1242 (1963). See text accompanying notes 106-19 supra.
153 See text accompanying notes 120-43 sura.
154 357 F.2d 581, 586 n.13 (D.C. Cir. 1965).
155 The court decided that New Jersey had no interest in fixing liability on defendant
Goldberger. by looking to a New Jersey case, Burke v. Auto Mart, Inc., 37 N.J. Super. 451,
117 A.2d 624 (App. Div. 1955), involving a New Jersey registered owner, a New Jersey
plaintiff and an accident in New Jersey. The court made no inquiry into the policies underling the New Jersey"rule to determine how that rule might apply to a multi-state situation
such as Williams.
156 For statement of the New Jersey rule allowing passage of equitable title, see Burke
v. Auto Mart, Inc., supra note 155.
1967]
FALSE CONFLICTS
If the disinterested forum finds a true conflict between the laws of
two foreign states, it has various choices. The court may succeed in
avoiding that choice by dismissing suit under the doctrine of forum non
conveniens.157 However, when dismissal is not a proper alternative,'58
the court must make a choice of law. In making such a choice, the forum
is admittedly no longer dealing with a false conflict. Nonetheless, it is
interesting that none of the choices open to the court can be easily justified in terms of Currie's analysis. To apply forum law to a suit in which
the forum has no interest is to ravage the very premise of governmentalinterest analysis. 59 To apply the "better'1160 of two foreign laws is to
engage in "weighing," which Currie finds improper. 6 ' To choose that
foreign law which is most similar to forum law is an excuse for allowing
the forum to apply either the "better" law or its own law.6" To follow
Currie's suggestion of flipping a coin" or of applying the law of the
state which comes first in the alphabet 64 is to equate choice-of-law theory
with "sorcery."' 5 Currie's dilemma adheres in his reluctance to have
courts engage in a "weighing" of interests. However, to the extent that
166
courts make normative evaluations in resolving even false conflicts,
there is nothing inconsistent in similarly allowing the disinterested forum
to choose whichever foreign law produces a "just" result.
2. Disinterested Forum Facing Case In Whick No State is Interested
The disinterested state may also find that no state has an interest
in applying its law to the facts at issue. Currie constructed such a case
1 57
EHRENZWEG, CoNFLICT OF LAWS § 35 (1962).
15s Currie, The Disinterested Third State, 28 LAW & CONTENT. PROB. 754, 767 (1963).
159 Weintraub, A Method for Solving Conflict Problems, 21 U. Prrr. L. REv. 573, 589
(1960).60
1
. Traynor, Conflict of Laws: Professor Currie's Restrained and Enlightened Forum,
49 CALIF. L. REv. 845, 862-67 (1961).
161 Currie, Survival of Actions: Adjudication versus Automation in the Conflict of Laws,
10 STAN.
L. REv. 205, 230 (1958).
62
'
For the suggestion that the forum may apply that foreign law which is most similar
to forum law, see Comment, 54 CALIF. L. REv. 1301, 1329 (1966). See also VoN MEEREN &
TRAUTmAN, TnE LAW OF MULTISTATE PROBLES 407-08 (1965); Currie, The Disinterested
Third State, 28 LAw &CONTENT. PROB. 754, 779 (1963).
163 "One is almost tempted to suggest that it would be better to flip a coin ... " Currie,
Married Women's Contracts:A Study in Conflict-of-Laws Method, 25 U. Cm. L. REv. 227,
262 (1958).
164 "In all solemnity, I suggest that a nearly ideal choice-of-law rule for such cases
would be that the governing law shall be that of the state first in alphabetical order." Currie,
The Verdict of Quiescent Years: Mr. Hill and the Conflict of Laws, 28 U. CHI. L. REv. 258,
279 (1961).
365 Currie described the study of conflicts generally as an "area of superstition and
sorcery." Currie, Justice Traynor and the Conflict of Laws, 13 STAN. L. REv. 719, 778 (1961).
166 See note 65 supra.
CALIFORNIA LAW REVIEW
[Vol. 59:74
by varying the facts of Grant v. McAuliffe, 16 7 in which California applied
its survival of actions statute to allow a California plaintiff to recover
against the estate of a California resident for an accident occurring in
Arizona. The policy underlying the Arizona law of allowing such actions
to abate was presumably designed to protect Arizona beneficiaries and
estates probated in Arizona.' Since Grant v. McAuliffe involved a California estate being probated in California, Arizona admittedly had no
interest in applying its law to defeat recovery. California, on the other
hand, by allowing recovery apparently considered it more important to
compensate California plaintiffs than to protect California estates from
being depleted by suits against deceased residents. 1 9
In Currie's hypothetical case, an Arizona plaintiff was injured in
Arizona by a California resident who died before action was brought in
California.
Currie described this "unprovided case" as a "kind of
lacuna" in which "neither state cares what happens. '171 Arizona would
have no interest in applying its statute of abatement to a case involving
a California estate with California beneficiaries. California, on the other
hand, would have no interest in having such action survive against a
local estate to compensate a foreign resident for an out-of-state accident.
The policies under neither law would be served by applying it to the
facts at issue.
To say that no state has an interest in applying its statutes to a particular case is not to say that no state has an interest in providing judicial
remedy for the parties. If the statutes of neither state apply, the court
may, for example, seek a remedy at common law. 7 2 However, it may
well be that neither the common nor statutory laws of either contact
state applies. Currie has suggested that in such cases the forum should
invariably apply its own law.'7 3 Others have suggested that the forum
apply any law but its own. 4 Whatever commentators may say, it seems
likely that judges in such context will choose the "better" law to produce
what they consider a "just result.' 7 5
167 41 Cal. 2d 859, 264 P.2d 944 (1953).
168 See, e.g., Herzog v. Stem, 264 N.Y. 379, 191 N.E. 23, cert. denied, 293 U.S. 597 (1934).
169 Currie, Survival of Actions: Adjudication versus Automation in the Conflict of Laws,
10 STAN.L. REv. 205, 219 (1958).
170 Id. at 229-32, 244.
171 Id. at 229.
1
72
Waynick v. Chicago's Last Dep't Store, 269 F.2d 322 (7th Cir. 1959).
173 "If I were a judge I think I should prefer application of the law of the forum ....
But then, I am a pretty old-fashioned fellow." Currie, The DisinterestedThird State, 28 LAw
& CONTEIM. PROB. 754, 780 (1963).
17 4
Weintraub, supra note 159, at $89-90; cf. VoN MEHRN & TRAumm, Tm LAw or
MuLTISTATE PRoBaEaas 407 (1965).
175
"When a court finds itself faced with a choice between such anachronistic laws still
FALSE CONFLICTS
19671
The problem of the disinterested forum is rare, 176 and may become
increasingly rarer as theories of judicial competence work to restrict the
"transient rule" of jurisdiction.' 7 7 However, the concept of the disinterested forum remains useful to test the finding of a false conflict. Since
the disposition of a false conflict is theoretically one which each contact
state would independently reach by looking to its own interests, 178 it is also
one which a disinterested third state would have to reach. In resolving
a false conflict, a court should therefore ask whether a disinterested third
state with the same case before it could be reasonably expected to reach
the same result for the same reasons. 7 If so, then the choice-of-law
problem is truly a false one.
II
ABSENCE OF DIFFERING LAWS
A. Case of Identical Laws
In cases having contacts with more than one state, it often happens
that the laws of each contact state are the same. 180 According to tradihanging on in one state, and realistic practical modern rules in another state . . .it would
be surprising if the court's choice did not incline toward the superior law." Leflar, ChoiceInfluencing Considerations in Conflicts Law, 41 N.Y.U.L. Rav. 267, 300 (1966).
176 "In the visible experience of modern American law teachers its occurrence is extremely
rare. Our casebook cases, and the current cases about which we write in the law reviews,
almost invariably involve a conflict, or apparent conflict, between the forum and another
state. It is extremely difficult to find actual cases for the purposes of a discussion [of the
disinterested forum] .... For that reason I have tended to regard the problem as relatively
unimportant, though intellectually troublesome . . . ." Currie, The disinterested Third State,
28 LAw & Cotrn-,. PROB. 754, 765 (1963). For possible cases of a disinterested forum, see
LaChance v. Service Trucking Co., 215 F. Supp. 162 (D. Md. 1963); Dimon v. Dimon, 40
Cal. 17
2d 516, 254 P.2d 528 (1953) ; Youssoupoff v. Widener, 246 N.Y. 174, 158 N.E. 64 (1927).
7 EH:REzwro, Con cT or LAws § 30, at 107 (1962). But see Leflar, Book Review, 13
SrA. L. REv.696, 698 (1961).
178 Currie, Married Women's Contracts: A Study in Conflict-of-Laws Method, 25 U.
Cmi. L. REv.227, 251-52 (1958).
179 For an application of this technique to an actual case, see discussion of Dym v.
L.
Gordon, 16 N.Y.2d 120, 209 N.E. 2d 793, 262 N.Y.S.2d 463 (1965), in Comment, 54 CAT"ar.
REV. 1301, 1329 (1966). Cf. Reese, Conflict of Laws and the Restatement Second, 28 LAW &
CONTEMP. PROB. 679, 692-93 (1963).
180 Waynick v. Chicago's Last Dep't Store, 269 F.2d 322 (7th Cir. 1959) ; Heifetz Metal
Crafts, Inc. v. Peter Kiewit Sons' Co., 264 F.2d 435 (8th Cir. 1959) ; Internatio-Rotterdam,
Inc. v. River Brand Rice Mills, Inc., 259 F.2d 137 (2d Cir. 1958), cert. denied, 358 U.S. 946
(1959); Frankel v. Johns-Manville Corp., 257 F.2d 508 (3d Cir. 1958); Smith v. Onyx Oil
& Chem. Co., 218 F.2d 104 (3d Cir. 1955) ; Fast, Inc. v. Shaner, 183 F.2d 504 (3d Cir. 1950) ;
Win. J.Lemp Brewing Co. v. Ems Brewing Co., 164 F.2d 290 (7th Cir. 1947); Hamilton v.
Glassell, 57 F.2d 1032 (5th Cir. 1932); Gass v. National Container Corp., 171 F. Supp. 441
(S.D. 1l.), appeal dismissed, 271 F.2d 231 (7th Cir. 1959); Lind v. Schenley Indus., Inc.,
167 F. Supp. 590 (D.N.J. 1958); Weiner v. Pictorial Paper Package Corp., 303 Mass. 123,
20 N.E.2d 458 (1939); Dalton v. McLean, 137 Me. 4, 14 A.2d 13 (1940) ; Booth v. Milliken,
CALIFORNIA LAW REVIEW
[Vol. 55:74
tional conflict-of-laws doctrine, inquiry is made into proper choice of
law even though there may be no difference between the laws of the
various contact states.1 " More recently, however, commentators 18 2 have
urged that such cases be treated separately from other conflict-of-law
cases on the ground that they present no real choice of law. "[I]f the
laws of both states, relevant to the set of facts, are the same . . . then
there is no real conflict-of-laws at all....
Choice of law seems irrelevant in a situation where all choices are the same. In such a situation,
disposition of the case is not meaningfully affected by choice-of-law
considerations. To choose any particularlaw is to beg the question by
assuming that choice of law has a material bearing on the outcome of the
case. To the extent that designation of a particular law is necessary for
pleading or other purposes, the court should probably prescribe forum
law.18 4 However, once the court has established that the relevant laws
of each contact state are identical, it should refuse to entertain all
choice-of-law arguments. 8 5
In discussing the absurdities involved in seeking rules for choosing
between identical laws, commentators"8 8 are irresistibly drawn to Marie v.
Garrison.8 7 However, since that "undeservedly famous case"'188 actually
involved two differing laws which happened to produce identical results,
194 N.Y. 553, 87 N.E. 1115 (1909); In re Field's Estate, 11 Misc. 2d 427, 172 N.Y.S.2d 740
(Surr. Ct. 1958) ; Mulroy v. Sessions, 38 N.Y.S.2d 853 (Sup. Ct. 1942) ; Munden v. McDaniel,
152 Misc. 472, 274 N.Y.S. 278 (Sup. Ct. 1934); Marie v. Garrison, 13 Abb. N. Cas. 210
(N.Y. Super. Ct. 1883).
181 EBHRNzwEiG, ConrL.cT op LAws 465-66 (1962).
182 CAVERS, TnE CHOrcE-or-LAw PRocEss 89-90 (1965); EHREzzwIEa, CONFLICT Or LAWS
§ 102, at 310-11 (1962); Hancock, Choice-of-Law Policies in Multiple Contact Cases, 5 U.
ToRoNTo LJ. 133, 134 (1943) ; Leflar, Comments on Babcock v. Jackson, A Recent Develop.
ment in Conflict of Laws, 63 CoLum. L. REv. 1212, 1251 (1963); Leflar, Choice-Influencing
Considerationsin Conflicts Law, 41 N.Y.U.L. REv. 267, 289-90 (1966); Morris, The Proper
Law of a Tort, 64 HARv. L. REv. 881, 891 (1951); Weintraub, A Method for Solving Conflict
Problems-Torts,48 CoREr L.Q. 215, 235 (1963).
183 Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L. REv. 267,
290 (1966).
184 See EmmxzwEIG, CoNmCT or LAWS § 102, at 310 (1962).
185 Iuternatio-Rotterdam, Inc. v. River Brand Rice Mills, Inc., 259 F.2d 137 (2d Cir.
1958), cert. denied, 358 U.S. 946 (1959) ; Fast, Inc. v. Shaner, 183 F.2d 504 (3d Cir. 1959) ;
Win. I. Lemp Brewing Co. v. Ems Brewing Co., 164 F.2d 290 (7th Cir. 1947); Gass v.
National Container Corp., 171 F. Supp. 441 (S.D. Ill.), appeal dismissed, 271 F.2d 231
(7th Cir. 1959); In re Field's Estate, 11 Misc. 2d 427, 172 N.Y.S.2d 740 (Surr. Ct. 1958).
The most authoritative statement of this proposition is found in Waters v. American Auto.
Ins. Co., 363 F.2d 684, 686 (D.C. Cir. 1966).
186 Currie, Ehrenzweig and the Statute of Frauds:An Inquiry into the "Rule of Validation," 18 OKLA. L. REv. 243, 253-54 (1965) ; Ritz, Phantoms in Conflicts, 42 VA. L. REv. 139,
143-44 (1956) ; CAvERs, THm CHoICE-OF-LAw PROCEss 39, 41 (1965).
18 13 Abb. N. Cas. 210 (N.Y. Super. Ct. 1883).
188 Currie, Ehrenzweig and the Statute of Frauds:An Inquiry into the "Rule of Validation," 18 O.LA. L. REv. 243, 253-54 (1965).
19671
FALSE CONFLICTS
it will be discussed later. 18 9 More relevant to the present discussion of
identical laws is the case of Dalton v. McLean.'9 0
Arnold McLean, a resident of Maine driving in New Brunswick, had
an accident in which he was killed and several residents of New Brunswick
injured. Plaintiffs brought suit in Maine against McLean's estate, alleging
negligence. At the date of the accident, Maine had a survival of actions
statute while New Brunswick did not. Before suit was brought, however,
New Brunswick enacted a survival of actions statute similar to Maine's
with retroactive provisions covering the date of accident. The laws of
each state, if applied, would have upheld the cause of action against
McLean's estate. Finding itself unable to apply either statute, however,
the court eventually denied suit altogether as non-actionable at common
law. In sum, the court dismissed a suit which could have been sustained
under statutes in each contact state, because its conflicts doctrine rendered
each statute unacceptable.
It seems clear that the suit in Dalton should have been sustained if
proper under the laws of both Maine and New Brunswick. Such a result
could be reached by applying either the lex loci delicti or the lex Jori.
Doing so, however, is itself a concession to choice of law where no such
choice exists. Instead, having determined that the laws of all contact
states are identical, the court should dismiss the conflicts issue as immaterial. In Williams v. Rawlings Truck Line, Inc.,'9 1 the court decided
that the issue of ownership should be governed by New York law. As
for the question of the defendant-owner's vicarious liability, the court
noted that if New York law were similar in wording and purpose to
District law, "the problem of selecting the applicable statute [would]
become moot."' 2
In discussing false conflicts involving identical laws, commentators
have often failed to state what they mean by the statement that "the laws
of [all] states relevant to the set of facts are the same."'"8 To say that
the laws of two contact states are "the same" might mean that each state
189 See note 219 infra and accompanying text.
190 137 Me. 4, 14 A.2d 13 (1940). The McLean court made a preliminary finding that
New Brunswick law applied as the lex loci delicti. On closer anaysis, however, the court
concluded that the retroactive provisions of that jurisdiction's survival of actions statute
conflicted with the public policy of Maine. The court consequently denied a cause of action
under New Brunswick law by finding the retroactive provisions of its statute inapplicable to a
case involving Maine resident-defendants. If the case had been wholly domestic to Maine,
the statute of Maine would have applied. Had the case been wholly domestic to New Brunswick, the statute of New Brunswick would have applied. Ultimately, however, the multistate
character itself of the case caused the court to reject the statutes of both jurisdictions.
191357 F.2d 581 (D.C. Cir. 1965).
19 2 Id. at 587.
19 3
Leflar, Choice-Influencing Considerationsin Conflicts Law, 41 N.Y.U.L. Rlv. 267, 290
(1966). (Emphasis added.)
CALIFORNIA LAW REVIEW
[Vol. 55:74
would reach an identical result if all facts in the case were domestic. On
the other hand, it might mean that each state would reach an identical
result if faced with the same multi-contact case. 1 4 The difference is crucial. Assume that state X has a Dram Shop Act making liquor dealers
vicariously liable for the torts of intoxicated persons to whom they sell
alcohol. State Y has a similar law, having modeled its statute after that of
state X. A, resident in state X, sells liquor to an intoxicated person, B,
who enters state Y and injures plaintiff C, a resident of that state. C
brings suit in state X against A."15 If all facts were domestic to state Xthat is, if A, B, and C were all residents of state X, with the sale of liquor
and the following accident both occurring in state X-then the courts of
that state would grant C recovery. If suit were brought in state Y and all
facts were domestic, C would also recover. In that sense, the laws of both
states are the same. Accordingly, one could argue that since the laws are
identical, and since each state would grant recovery if all facts were
domestic, the forum should not deny recovery simply because the sale of
liquor occurred in one state and the injury in the other. In other words,
having determined that the laws of each state are parallel, the court might
grant recovery by dismissing the choice-of-law issue as moot.'0
To dismiss the choice-of-law issue, however, is to assume that the case
before the court is wholly intrastate in character and ignore its multistate contacts. To do so might well produce an improper result. For it is
possible that each state, in reviewing the purposes and policies of its
Dram Shop Act in light of the multi-state case before the court, would
decide that no recovery should be allowed under its law. State X might
find that its law was designed to protect people in that state from being
injured by intoxicated individuals. State Y, on the other hand, might find
that its law was penal in design, intended to punish liquor dealers in the
state for selling alcohol to inebriated persons. The policies of neither
state X nor state Y would be served in such a case by holding A liable.'9 7
It would be paradoxical for either state to allow recovery, for the laws of
1
94 See generally VoN ME.maw & TRAuThAN, Tim LAW OF MULTISTATE PROBLELIS
215-326 (1965).
'95 See Waynick v. Chicago's Last Dep't Store, 269 F.2d 322 (7th Cir. 1959) ; Eldridge
v. Don Beachcomber, Inc., 342 Ill. App. 151, 95 N.E.2d 512 (1950); Schmidt v. Driscoll
Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365 (1957).
19 6 Williams v. Rawlings Truck Line, Inc., 357 F.2d 581, 587 (D.C. Cir. 1965).
19 State Y may have an interest in seeing that its resident, C, is compensated. If so,
that policy of compensation would be reflected in its general tort law, under which C might
be able to sue B, the tortfeasor. For the purposes, of illustration, however, it is assumed that
state Y has not incorporated a secondary policy of compensating the victims of inebriated
persons into the provisions of its Dram Shop Act. For the constitutional implications of
limiting the protection of state X's law to residents of that state, see Cun, SELECTED
EssAys oN THE CoNFLict or LAWS 475-90 (1963).
1967]
FALSE CONFLICTS
both as to the multi-state case are the same, namely that no recovery be
allowed. In the absence of an applicable statute, the forum would dismiss
the suit, unless it could be shown that a cause of action existed at common law. 198
In the Williams case, the court assumed that choice of law as to
owner's vicarious liability would become moot if the laws of New York
and the District of Columbia were found to be the same. It is possible,
however, that New York would find its law inapplicable to a suit by a
resident of another state concerning an accident which occurred outside
New York. In weighing the importance of providing accident victims
with solvent defendants against the importance of holding registered
vehicle owners harmless from driving over which they have no control,
New York may have allowed the policy of compensating plaintiffs to
prevail in order to protect New York resident-plaintiffs. Since Williams
concerned an out-of-state accident involving a non-resident plaintiff, a
New York court might well find its doctrine of ownership by estoppel inapplicable. Stated differently, a New York court might well find that New
York had no interest in applying its law of vicarious liability to such a
case. Similarly, it is possible that the District of Columbia would find its
law designed to protect residents. 19 9 Although it is more likely that the
District recognizes a policy of providing compensation for those injured
within its jurisdiction so that a fund be available to reimburse District
residents offering aid to the victim, 00 the court did not discuss any such
policy for invoking a governing law. Instead the court assumed that the
law of some contact state applied. Were those laws found to be identical,
it thought the choice-of-law issue should be dismissed as immaterial °1
The court in Williams expressly decided to confront choice of law
by employing "interest analysis," 0 but in considering the identical laws
of two contact states, it assumed that one of them had to govern, without
inquiring whether either state had an "interest" in the litigation. This
inconsistency in method has been fostered by those advocates of "governmental-interest analysis" who cheerfully probe respective state policies
198 Waynick
v. Chicago's Last Dep't Store, 269 F.2d 322, 324 (7th Cir. 1959).
199 The statement by the courts of a state that its owner-consent statute is not to be
given extra-territorial effect can be interpreted to mean that the legislature only intended to
protect its own residents. Cf. Williams v. Rawlings Truck Line, Inc., 357 F.2d 581, 587 (D.C.
Cir. 1965).
200
Weintraub, A Method for Solving Conflict Problems-Torts,48 CoiRuri L.Q. 215, 227
(1963).
201
Williams v. Rawlings Truck Line, Inc., 357 F.2d 581, 586-87 (D.C. Cir. 1965). The
court seemed to be operating on the assumption that one of two "jurisdiction-selecting rules"
applied, either the law of the defendant's domicile or the lex loci delicti. Cf. Cavers, A
Critique of the Choice-of-Law Problem, 47 11ARv. L. Rav. 173, 191-92 (1933).
202 357 F.2d at 586.
CALIFORNIA LAW REVIEW
[Vol. 55:74
when the laws of contact states differ, but ignore the question when they
are the same.2 3 In a case in which the laws of contact states are the same,
there are three possibilities. Each state may have policies which call for
application of its law; one state may have such a policy; or neither state
may have a policy which would justify invoking its law. In the first case,
where both states have policies to be served by applying their laws,
"there is no real conflict of laws at all. 20 4 The law common to both states
should be applied because choice of law is a moot issue. In the second
case, where one state has a policy which would be advanced by applying
its law to the issue before the court, that law should be applied. What is
relevant is not that the other state has an identical law, but that the other
state has no interest in applying its law. In the third case, where neither
state has a policy which would be fulfilled by invoking its law, the court
should dismiss the case for failure to state a cause of action under either
law.
B. Case of Identical Results
Frank and Helen Jacek, residents of New Jersey, were traveling in
New York when the car Frank was driving became involved in an accident in which his wife Helen was injured2 0 At the time of the accident,
Frank was insured under a liability policy issued in New Jersey by the
Maryland Casualty Company, providing that the insurer would satisfy
any claim which Frank might "become legally obligated to pay" for
damages arising from an automobile accident.206 Wives in New York are
permitted to sue their husbands for negligence 207 but are not permitted
to recover on their husbands' insurance policies "unless express provision
relating specifically thereto is included in the policy."'2°8 New Jersey, on
the other hand, would construe Frank's insurance policy to cover Helen's
injuries, but would not permit wives to sue their husbands for negligence.20 9 If the facts were wholly domestic to either New York or New
Jersey, the result under the laws of each would be the same. New York
would deny Helen recovery on the ground that Frank's policy does not
cover her injuries; New Jersey would deny her recovery on the ground
that suits in tort between husband and wife are not entertained in that
state.
203 See authorities cited in note 182 supra.
20
4 Leflar, Choice-Influencing Considerationsin Conflicts Law, 41 N.Y.U.L. Rxv. 267, 290
(1966). Choice of law is a moot issue only if the laws of both contact states are the same
as applied to the multistate case.
205 Maryland Cas. Co. v. Jacek, 156 F. Supp. 43 (D.N.J. 1957).
2
06 Id. at 44.
207 N.Y. Gas. OBmGATioNs LAw § 3-313, formerly N.Y. Domr.
208 N.Y. INS. LAW § 167(3).
209 Bendler v. Bendler, 3 N.J. 161, 69 A.2d 302 (1949).
R m. LAW § 57.
19671
FALSE CONFLICTS
When a court confronts a case having factual contact with more than
one state and discovers that each state would reach the same result if
faced with a wholly domestic case of the same type, it has three alternatives: (1) It may invoke choice-of-law reasoning to select a particular
governing law, even though the result would be the same under any other
applicable law;2"' (2) it may decide that choice of law is moot in a multistate case where the result would be the same under the laws of each
contact state;211 or (3) it may reach a result contrary to the one which
would prevail in the domestic situation under the laws of each contact
state, either by finding that the laws of no contact state applys or by
210 Hamilton v. Glassell, 57 F.2d 1032 (5th Cir. 1932).
2
11 It is helpful in discussing false conflicts to specify what is meant by saying that the
laws of each contact state "would yield the same result." CAVERS, THE CHoIcE-oF-LAw
PROCESS 89 (1965). It is one thing to say that each law as applied to an intrastate case of
the same type produce an identical result. It is another thing to say that each state would
reach an identical result in resolving the multi-state case before the court. Cf. Harper, Policy
Bases of the Conflict of Laws: Reflections on Rereading Professor Lorenzen's Essays, 56
YArm L.J. 1115, 1162-63 (1947). Conceding that each state would reach an identical result
if confronted with the multi-state case, one should distinguish between the case where the
forum determines that a foreign state would reach the same result by looking to the foreign
state's domestic law (Internatio-Rotterdam, Inc. v. River Brand Rice Mills, Inc., 259 F.2d
137 (2d Cir. 1958), cert. denied, 358 U.S. 946 (1959)) and the case where it determines that
a foreign state would reach the same result by looking to that state's conflicts law. Gessler v.
Gessler, 273 F.2d 302 (5th Cir. 1959) ; Autographic Register Co. v. Phillip Hano Co., 198 F.2d
208 (1st Cir. 1952); Larx Co. v. Nicol, 28 N.W.2d 705, 224 Minn. 1 (1947). For example,
it is one thing for a New Jersey court to decide that Helen Jacek would also be denied
recovery in New York by finding that New York would construe the provisions of the
insurance policy to deny her recovery; it is another thing for the court to decide that she
would be denied recovery by finding that New York defers questions of intra-family immunity
to the law of the parties' domicile. The doctrine of renvoi, by which the forum defers not
only to the foreign state's domestic law but also to its conflicts law, has been said to have
little place in governmental-interest analysis. Currie, The Disinterested Third State, 28 LAw
& CONTaN. PROB. 754, 782 (1963). If a court chooses to resolve conflicts problems by applying governmental-interest analysis, it does so by looking to the policies underlying the laws
of contact states, not by looking to "jurisdiction-selecting rules" which those states may have
erected. The doctrine of renvoi assumes that the forum has decided to defer to the law of
another jurisdiction, the only question being whether the "law" of that jurisdiction includes
its conflicts law. But a court which practices governmental-interest analysis only defers to
the laws of another jurisdiction when it finds that doing so fulfills policies underlying those
laws. That the foreign jurisdiction might itself follow other choice-of-law rules does not
mean that the forum should abandon governmental-interest analysis. If all states adopted
governmental-interest analysis to resolve their choice-of-law problems, then it would be
possible for a disinterested forum to defer to law of a foreign jurisdiction including its
conflicts law. However, if that were the case, the "conflicts" law of the foreign jurisdiction
would consist of the same process of governmental-interest analysis which the forum would
apply to the case at issue. In that context the doctrine of renvoi loses its meaning. But see
VON MEau
& TRAUTmAN, THE LAW O? MuLTISTATE PROBES 549-52 (1965). See also
De Nova, Conflict of Laws and Functionally Restricted Substantive Rules, 54 CAra=. L. Rv.
1569 (1966).
212 Scheer v. Rockne Motors, Corp., 68 F2d 942 (2d Cir. 1934) ; Nelson v. Eckert, 231
CALIFORNIA LAW REVIEW
[Vol. 55: 74
finding that the laws of. several contact states combine to resolve separate
case, producing a result which neither would reach indeissues of the
213
pendently.
The court in Maryland Cas. Co. v. Jacek, having determined that the
results under both New York and New Jersey law would be the same,
might nonetheless have tortuously probed choice-of-law rules to decide
which law to apply. Viewing the suit as one sounding in tort, the court
might have decided that New York law should apply as the place where
the accident occurred2 14 On the other hand, viewing the suit as one for
recovery on a contract, the court might have found that New Jersey law
applied as the place where the contract was made.2 15 Either line of reasoning produces the same result-Helen is denied recovery on the insurance policy.
On the other hand, since the outcome of the case would be unaffected
by any choice of law, the court might instead have dismissed that issue as
moot. It has been suggested that in cases in which the same result prevails regardless of the law applied, there is no real conflict of laws at
all.216 Allowing the court to indulge in gratuitous reasoning, besides
wasting judicial effort, produces a body of misleading dicta parading as
valid choice-of-law precedent. 2 ' More serious, however, such convoluted
reasoning2 18 increases the likelihood that the court will find neither law
applicable and reach a result contrary to the policies prevailing in each
contact state 19
Ark. 348, 329 S.W.2d 426 (1959); Marie v. Garrison, 13 Abb. N. Cas. 210 (N.Y. Super. Ct.
1883).
21SLillegraven v. Tengs, 375 P.2d 139 (Alaska 1962); Victor v. Sperry, 163 Cal. App.
2d 518, 329 P.2d 728 (1958); Escrow Serv. Co. v. Cressler, 59 Wash. 2d 38, 365 P.2d 760
(1961).
214 Clement v. Atlantic Cas. Ins. Co., 13 N.J. 439, 100 A.2d 273 (1953).
215 Buzzone v. Hartford Acc. & Indem. Co., 23 NJ. 447 129 A.2d 561 (1957).
216 CAVERS, THE CHoICE-oF-LAw PROCESS 89-90 (1965). Hancock, supra note 182, at
134; Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.UL. REv. 267, 290
(1966) ; Morris, supra note 182, at 891; Weintraub, A Method for Solving Conflict Problems
-Torts, 48 CoR=i L.Q. 215, 235 (1963). It should be noted that choice of law is a moot
issue only if the laws of each state produce the same result as applied to the "tulti-state case
before
the court. See note 211 supra.
217
EmENzwEG, CoNm'nc Or LAWS § 175, at 465-66 (1962).
218 "[Ilf the laws of both states, relevant to the set of facts . . .would produce the
same decision in the lawsuit, then there is no real conflict of laws at all .... Some of the
strangest decisions with some of the lengthiest and most convoluted opinions in the books
could have been handled simply and easily if the false conflict analysis had been understood
and accepted." Leflar, Choice-Influencing Considerationsin Conflicts Law, 41 N.Y.U.L. R.v.
267, 290 (1966).
219 In Scheer v. Rockne Motors, Corp., 68 F.2d 942 (2d Cir. 1934), a New York automobile owner provided use of his car to an employee who in the course of his employment
drove into Ontario and had an accident injuring his New York passenger. The court held
that New York standards of vicarious liability-making an owner liable for the acts of
1967]
FALSE CONFLICTS
The argument that choice of law should be dismissed as moot in a
case where different laws of several contact states produce the same
result is persuasive only if one assumes that one of the several laws must
be applied and that together they cannot be legitimately combined to
produce a result contrary to the one which would obtain in a wholly
domestic case. The Restatement has operated on the first assumption,
namely that the law of at least one contact state has to apply.220 On that
those who drive with his permission-would not apply since Ontario was the place of the
accident, and that Ontario law of vicarious liability-making an owner liable for the acts
of those permitted to possess his motor vehicle-would only apply if it could be shown that
the New York owner gave his employee express permission to enter Ontario. For further
discussion of Scheer, see Cavers, The Two "Local Law" Theories, 63 HARv. L. REv. 822, 828
(1950): "[Bloth the New York and the Ontario laws were in agreement that, but for the
crossing of the Niagara River, this bailor would have been answerable for the injuries his
car inflicted. Surely, then, the judge could not have allowed the bailor to escape liability
simply by reason of this accident of geography. Given unanimity in the policies of the only
two jurisdictions concerned, there was no true conflict of laws." Morris, The Proper Law of
a Tort, 64 HAmv. L. Rrv. 881, 891 (1951): "It can hardly be the law that if an Ontario
bailment, followed by a negligent act in Ontario, imposes liability on the bailor, and a
New York bailment, followed by a negligent act in New York, imposes liability on the
bailor, yet a New York bailment, followed by a negligent act in Ontario, leaves the bailor
scot free. For if that were the reason why the new trial was ordered, then the accident of
geography becomes decisive in a case where there was no true conflict of laws at all." In
Lillegraven v. Tengs, 375 P.2d 139 (Alaska 1962), an Alaskan automobile owner provided
use of his car to a person who drove into British Columbia where he had an accident injuring
his Alaskan passenger. The Alaskan court allowed the passenger-plaintiff to recover by applying
an Alaskan statute of limitations to a British Columbia vicarious liability statute, even though
the statute of limitations on the British Columbian statute had run and even though Alaska
had no similar law of vicarious liability. For a discussion of Lillegraven, see Note, 1963
DUE L.J. 762. In Victor v. Sperry, 163 Cal. App. 2d 518, 329 P.2d 728 (1958), a California
automobile owner provided use of his car to a person who drove into Mexico where he had
an accident injuring a California resident. Mexico imposed a standard of strict liability with
a limitations on damages and California observed a standard of negligence but recognized no
limit on recoverable damages. The California court rejected the Mexican standard of strict
liability in favor of the California rule of negligence but imposed the Mexican ceiling on
damages in place of the California policy of allowing unlimited damages. In Nelson v.
Eckert, 231 Ark. 348, 329 S.W.2d 426 (1959), an Arkansas guest was killed while riding with
his Arkansas host in Texas. Arkansas had a wrongful death statute with a built-in statute of
limitations of two years and general statutes of limitations of three and five years, while
Texas had a wrongful death statute and a general statute of limitations for torts of two
years. The Arkansas court allowed recovery on a suit brought two years and 'six months
after the accident by applying the Texas wrongful death statute and the Arkansas general
statute of limitations. In Marie v. Garrison, 13 Abb. N. Cas. 210 (N.Y. Super. Ct. 1883),
the defendant sought to exclude testimony concerning an oral modification of a written
contract on the ground that it violated the New York, or alternatively, the Missouri statute
of frauds. Under New York law, such a modification would have been void; under Missouri
law, "no action" could be brought to enforce such a modification. Although each statute, if
applied, would have invalidated the oral modification, the court upheld the contract by
applying neither. See also, Escrow Serv. Co. v. Cressler, 59 Wash. 2d 38, 365 P.2d 760 (1961).
220 But see Currie, Survival of Actions: Adjudication versus. Automation in the Conflict
of Laws, 10 STAwe. L. Rsv. 205, 229 (1958).
CALIFORNIA LAW REVIEW
[Vol. '55:74
assumption, it of course makes no difference which law is applied. Critics
of the Restatement, however, have suggested that laws of contact states
be invoked only when some purpose underlying them would thereby be
served.2 2 On that assumption, it is entirely possible that no policies of
any contact state would be advanced by applying its law to a multi-state
situation 22 The fact that the laws of each contact state if applied would
produce the same result does not mean any such law should be applied.
It rarely happens that no contact state's policies would be served by
applying its law to a multi-state situationm22 3 More common is the situation
where the law of one contact state is invoked to resolve one issue in a
case and the law of another state is applied to a different issue, so that
combined they produce a result contrary to the common one which would
obtain if the entire law of only one state were applied 24 Such hybrids
can only occur if the court "splits 22 5 the case into separate issues and
decides to resolve some issues under the laws of one contact state and
other issues under the laws of another state.
In Maryland Cas. Co. v. Jacek, 21 the court adopted this third alternative by splitting the case into two issues: the issue of immunity between
husband and wife, and the issue of insurance coverage. The court then
combined the New York law of allowing suit between spouses with the
New Jersey standard for construing insurance coverage to reach a result
which neither New York nor New Jersey alone would have provided.
Both contact states would have denied Helen Jacek recovery; together
their laws were combined to provide her with a cause of action.
The result in Jacek is grotesque. But it is grotesque not because the
court reached an outcome different from any which New York or New
Jersey alone would have provided, but rather because it split and combined issues improperly.22 7 The court failed to realize that the New York
221 Currie, The Disinterested Third State, 28 LAw & CONTEN. PROB. 754, 765 (1963).
222
See text accompanying notes 167-79 supra.
223 Currie, Survival of Actions: Adjudication versus Automation in the Conflict of Laws,
10 STAN. L. Rav. 205, 229 (1958).
crIT
OF LAWS § 95, at 176 (Scoles ed. 1964).
24 GooDmaca, CoN
225 No authoritative terminology has yet been established for describing this process of
splitting. Leflar refers to the process as "severance." Leflar, Comments on Babcock v. Jackson,
A Recent Development in Conflict of Laws, 63 COLum. L. Rav. 1212, 1249 (1963). For
various synonyms, see NiEDEaR, EnruEmITNG IN DIE ALLGEmEiNEN LEREN DES INTER-
NATIONALEN PRIVATRECHTS 207-08 (1954). See also text accompanying notes 120-43 supra.
226 156 F. Supp. 43 (D.N'. 1957).
227 "True it is that choice of law must proceed on an issue-by-issue basis; but modern
conflict-of-laws analysis can make no more serious mistake than to indulge in an unprincipled
eclecticism, picking and choosing from among the available laws in order to reach a result that
cannot be squared with the interests of any of the related states. Issue-by-issue analysis
should not result in the cumulation of negative policies to produce a result not contemplated
by the law of either state," Cavers describing Professor Currie's position, CAVRS, CoxCE.-
19671
FALSE CONFLICTS
rule for allowing suit between husband and wife is as closely linked to
its narrow construction of insurance policies as the New Jersey rule disallowing such suits is with its broad interpretation of insurance coverage.
Both New Jersey and New York are concerned about the danger of collusion which exists when spouses are allowed to sue each other.228 New
Jersey has avoided that danger by proscribing such suits altogether. New
York, on the other hand, permits suit but minimizes the danger of collusion by interpreting insurance policies strictly. The Jacek court ignored
the protective measures of each state by treating the immunity issue
separately from the insurance issue. In doing so, it subverted New Jersey
policy of preventing collusion against insurance companies without serving any New York policy of providing compensation for injured spouses.22 9
By varying the facts in Jacek, it is possible to construct a situation
in which the laws of two states would deny recovery in a domestic case
but properly combine in a multi-state case to provide a cause of action.
State X does not allow suit between spouses but does consider it negligent
per se to exceed its highway speed limits.2 3 ° State Y allows suit between
spouses but does not consider it negligent per se to exceed its speed
limits.23 1 Franque and Ellen Jacek, residents of state Y, were traveling in
state X at excessive speed when Franque collided with another car,
or-LAw PROCESS 38 (1965). For a discussion of the proper approach to splitting and combining issues, see Wilde, D~peqage in the Conflicts Law of Torts, June 1966 (unpublished thesis
in the University of California Law School Library in Berkeley). For an example of improper
splitting, see Lillengraven v. Tengs, 375 P.2d 139 (Alaska 1962); Note, 1963 DuXE L.J. 762.
228 "The risk of collusion is indeed a very great and human one .... It is unlikely in
most instances that the insurance carrier, whose interests are the only ones really at stake,
can adequately defend itself.... The possibility of collusion, and the corollary of breakdown
of most desirable individual integrity within the family ... is so great in so many cases of
the kind before us that we feel constrained to conclude . . . that sound public policy
precludes their prosecution." Hastings v. Hastings, 33 NJ. 247, 252-53, 163 A.2d 147, 150
(1960). An action between husband and wife is often designed as a "raid upon an insurance
company." Newton v. Weber, 119 Misc. 240, 241, 196 N.Y. Supp. 113, 114 (Sup. Ct. 1922).
2 29
In 1937 the N.Y. Dom. REL. LAW § 57, now covered by N.Y. GEN. OBLIGATIONS LAW
§ 3-313, was amended to allow suits in tort between husband and wife. At the same time,
N.Y. INs. LAw § 109(3-a), now N.Y. INs. LAW § 167(3), was amended to provide that "no
such policy ... shall be deemed to insure against any liability of an insured for injuries to
his or her spouse ... unless express provision for such insurance is included in the policy."
The connection between the two amendments has been observed by New York courts. "The
purpose and policy of the Legislature in making these simultaneous enactments is unmistakenly
clear. The object was to authorize personal injury actions between spouses, and at the same
time to guard against the mulcting of insurance companies by means of collusive actions between husband and wife." Fuchs v. London & Lancashire Indem. Co., 171 Misc. 908, 909, 14
N.Y.S.2d 387, 389 (Sup. Ct. 1939), aff'd 258 App. Div. 603, 17 N.Y.S.2d 338, appeal denied,
259 App. Div. 731, 19 N.Y.S.2d 311 (1940).
230For a statement of the rule that exceeding speed limits constitutes negligence per se,
see Teche Lines v. Bateman, 162 Miss. 404, 139 So. 159 (1932).
231 For a statement of the rule that exceeding speed limits does not constitute negligence
per se, see Elliott v. Montgomery, 135 Me. 372, 197 Atl. 322 (1938).
CALIFORNIA LAW REVIEW
[Vol. 55:74
injuring both the driver of that car and his own wife, Ellen. Franque
had no reason to know that, at the time of the accident, his speedometer
was defective and that his speed exceeded legal limits. On returning to
state Y,Ellen filed suit against her husband for damages due to negligence.
Under the laws of state Y, Ellen would be denied recovery, for her husband could show that he was not negligent according to the laws of that
state. Similarly, under the laws of state X, she would be denied recovery,
for that state does not entertain suits between husband and wife. However, even though neither state X nor state Y alone would grant Ellen
recovery, it would be quite proper to provide her with a cause of action
by applying the law of state Y to the issue of inter-spousal immunity and
the law of state X to the issue of negligence. 32 By having the law of the
parties' domicile govern capacity to sue2 s and by having the law of the
place of accident govern the standard of care,23 4 the court fulfills the
policies underlying the law of each state.
III
ABSENCE OF CONFLICTING INTERES S: A THRESHOLD INQUIRY
A.
Case of Foreign Law as Datum
Early in 1959, one year after his seminal essay on "Married Women's
Contracts, 1 23 Currie wrote a short article2 6 explaining the general scope
and purpose of his proposed method. In that article he divided all conficts cases into two categories: "(1) those in which the purpose of the
232 "[W]e should think it natural enough that a two-state case involving two distinct
policy problems should not always have the same result as a one-state case involving the
same problems." CAvERS, TnE CHOICE-or-LAw PROCESS 40 (1965). "Although the result
might appear anomalous on first thought, there should be nothing surprising in the suggestion that the combination of the relevant policies of two states might bring about a legal
result which would not be obtained under the policy of either one of them alone." Harper,
supra note 211, at 1163.
233 Haumschild v. Continental Cas. Co., 7 Wis. 2d 130, 95 N.W.2d 814 (1959), overruling
Buckeye v. Buckeye, 203 Wis. 248, 234 N.W. 342 (1931), discussed in Hancock, The Rise
and Fall of Buckeye v. Buckeye, 1931-1959: Marital Immunity for Torts in Conflict of Laws,
29 U. CH . L. REv. 237 (1962) ; contra, Bissonnette v. Bissonnette, 145 Conn. 733, 142 A.2d
527 (1958).
234 "[T~here is no reason why all issues arising out of a tort claim must be resolved by
reference to the law of the same jurisdiction. Where the issue involves standards of conduct,
it is more than likely that it is the law of the place of the tort which will be controlling but
the disposition of other issues must turn . . .on the law of the jurisdiction which has the
strongest interest in the resolution of the particular issue presented." Babcock v. Jackson,
12 N.Y.2d 473, 484, 191 N.E.2d 279, 285, 240 N.Y.S.2d 743, 752 (1963).
235
Currie, Married Women's Contracts: A Study in Conflict-of-Laws Method, 25 U.
Cm. t. REv. 227 (1958).
236
Currie, Notes on Methods and Objectives in the Conflict of Laws, 1959 DuKE L.J.
FALSE CONFLICTS
1967]
reference to foreign law is to find the rule of decision, and (2) those 2 in8
23
which the reference has some other purpose." 1 Currie then, as later, 1
addressed himself to choice-of-law problems arising in the first category
and expressly refrained from discussing those of the second category. The
239
distinction that he had drawn, however, between "rules of decision"
on the one hand and "datum"'2 4 on the other has persisted.
When a court looks to foreign law for a rule of decision, it determines
rights and defenses not by its own, but by another law. In cases where the
forum has no interest and a sister state has some interest in applying its
law to the facts at issue, the forum finds a rule of decision in that foreign
law.24 1 In other cases, however, where the forum has an interest in applying its law and chooses to do so, it may look to foreign law as "datum" to
be considered with other relevant facts under forum law.242 If a domiciliary of state X, for example, dies leaving property in state Y, the courts
of state Y may decide that the validity of the will is to be determined
by the laws of state X.243 In such a case, the forum is making a conflictsof-law decision that the rights of the parties be determined by looking to
foreign law. On the other hand, the forum may also look to foreign law
not for a rule of decision, but rather as a "datum" in applying its own
law. A domiciliary of state X dies leaving property in the state to B, an
alien and a resident of state Y. 2 ' State X has a reciprocal inheritance
statute 45 allowing non-resident aliens to take property by succession if
237
Id. at 172-73.
238 CUR=, S
cacTD ESSAYS ow Tim CouIcT op LAws 67, 178 (1963).
2 39
Id. at 68 n.163.
24
0 Id. at 66-73. The term "datum" is used interchangeably with "datum point." Kay,
Conflict of Laws: Foreign Law as Datum, 53 CAras. L. Rav. 47, 61 (1965); M. Traynor,
Conflict of Laws: Professor Currie'sRestrained and Englihtened Forum, 49 CAnLE. L. Rav.
845, 873 (1961).
241
See text accompanying notes 73-90 supra. See also Bond v. Oak Mfg. Co., 293 F.2d
752 (3d Cir. 1961) (suit arising in a federal district court in New Jersey concerning a controversy between a Pennsylvania and an Illinois corporation involving an oral contract
made in Illinois).
242 Banco de Sonora v. Bankers' Mut. Cas. Co., 124 Iowa 576, 100 N.W. 532 (1903);
Haven v. Foster, 26 Mass. (9 Pick.) 111 (1829); O'Rourke v. O'Rourke, 43 Mich. 58, 4
N.W. 531 (1880); Naylor v. Conroy, 46 N.J. Super. 387, 134 A.2d 785 (App. Div. 1957);
Crashley v. Press Publishing Co., 179 N.Y. 27, 71 N.E. 258 (1904); Masocco v. Schaaf, 234
App. Div. 181, 254 N.Y. Supp. 439 (1931); Bradley v. Mutual Benefit Life Ins. Co., 3 Lans.
341 (N.Y. Sup. Ct. 1870); Eddie v. Eddie, 8 N.D. 376, 79 N.W. 856 (1899). But see Hill v.
Walker, 41 Ga. 449 (1871).
243 Collins v. Collins, 219 S.C. 1, 63 S.E.2d 811 (1951). See Stimson, Conflict of Laws
and the Administration of Decedents' PersonalProperty, 46 VA. L. REv. 1345, 1381 (1960).
244 Estate of Larkin, 65 A.C. 49, 416 P.2d 473, 52 Cal. Rptr. 441 (1966). Cf. Heyman,
The Nonresident Alien's Right to Succession under the "Iron Curtain Rule," 52 Nw. U.L.
REv. 221 (1957).
245 CAL. PROB. CODE § 259.
CALIFORNIA LAW REVIEW
[Vol. 55: 74
the alien's homeland provides American citizens with similar rights. In
deciding whether B should succeed to the property in question, the courts
of state X must look to the laws of state Y to determine whether that
state grants similar rights to Americans. But in looking to the laws of
state Y, the forum is not looking for a rule of decision. On the contrary,
it finds the rule of decision in its own law, namely that B is allowed to
take by succession upon the showing of certain facts. In this case, one of
those relevant facts also happens to be the laws of a foreign state. But
that does not mean the forum is making a choice of law. For in cases
where the forum looks to a foreign law as datum in applying its own law,
no conflict of laws exists." 6 Since the forum looks to foreign law only
after it has already decided to apply its own law, there is no place for
even potential conflict of laws. 47
The fact that choice of law seems irrelevant in datum cases has led
some commentators to speak of such cases as false conficts 2 48 To a certain extent it is true that datum cases present no conflicts problems. But
it is true only because the forum has already made a threshold choice-oflaw decision. Having made that threshold decision, the forum looks to
foreign law as datum without reference to choice of law. The "false conflict" label should not, however, preclude inquiry into the wisdom of that
initial choice-of-law decision itself.
Commentators often cite as datum cases those which involve questions
of personal status2 49 Banco de Sonora v. Bankers' Mut. Cas. Co. 2 10 is
such a case. An American insurance carrier issued to a Mexican bank a
casualty policy which provided in part that "packing and sealing of the
package containing the property insured hereunder shall be witnessed by
two adults. '2 5 1 In an Iowa suit for loss under the policy, the bank alleged
that sealing of the lost package had been witnessed by a seventeen-yearold boy. The court in Banco de Sonora looked to its own law for rules
governing construction of the policy. However, according to forum rules
of decision, whether the seventeen-year-old boy was an adult was a question of personal status to be determined by the law of his domicile. The
court did not look to Mexican law for the rule of decision, for it had al246
Currie, On the Displacement of the Law of the Forum, 58 CoLuat. L. REv. 964,
1019-20 (1958).
247 Kay, supra note 240, at 62.
248 R. Traynor, Is This Conflict Really Necessary?, 37 Taxas L. REv. 657, 667-68 (1959).
249 Currie, On the Displacement of the Law of the Forum, 58 CoLru1. L. REv. 964, 1022.
(1958). For the function of datum-analysis in guest statute cases, compare Comment, 54
CALiF. L. REv. 1301, 1319-21 (1966).
250 124 Iowa 576, 100 N.W. 532 (1903).
2
51 Id. at 578, 100 N.W. at 533.
FALSE CONFLICTS
19671
ready decided that recovery under the policy was to be governed by forum
law. Under forum law, however, recovery was conditioned upon proof of a
fact, namely whether the seventeen-year-old boy was an adult in his own
country. To determine that fact, the court looked to Mexican law as
datum.
Reference to foreign law as datum may be dictated by statute25 or
by contract25 8 as well as by judicial decision. Once that decision has been
made, choice of law is a foregone conclusion; and any purported conflict
of laws concerning the relevance of foreign law is a false conflict. Having
decided that the casualty policy in Banco de Sonora was to be construed
by forum law, with reference to Mexican law for a preliminary determination of status,254 the court faced no conflict at all between the laws of the
forum and Mexico. But the decision to construe the insurance policy under
forum law and the decision to determine "adulthood" under the lex
domicilii involved choice-of-law considerations which deserve critical appraisal. The fact that datum cases are false conflicts for some purposes
does not insulate them from governmental-interest analysis altogether 5
The fundamental choice-of-law assumptions on which they rest are always
open to question.
B.
Case of Unpleaded Foreign Law
The court in Williams v. Rawlings Truck Line, Inc.,2 56 found New
York to be the only state with an interest in applying its law to the issue
of vehicle registration. What appeared to be a choice-of-law problem
presented in fact no real conflict at all, for the law of only one state purported to govern that particular issue. The court accordingly disposed of
the case as a "false conflict." However, in resolving Williams by construing
only the laws of New York and the District, the court of appeals trans252 CAM. PROB. CODE § 259.
25
3 Eek, Babcock in Sweden, 54 CALF. L. REv. 1575, 1581 (1966).
254 Reference to foreign law as datum for a preliminary determination of status is
closely related to what has been variously called a "preliminary" or "incidental" question.
See Ehrenzweig, Choice of Law: Current Doctrine and "True Rules," 49 CA=. L. REV.
240 n.6 (1961). See also VON AMEmmN & TEAuTmAr, THE LAW OF MuLTiATE PRoBLEms 439
(1965); Cavers, The Conditional Seller's Remedies and the Choice-of-Law Process-Some
Notes on Shanahan, 35 N.Y.U.L. REv. 1126, 1133 (1960); Cormack, Renvoi, Characterization, Localization, and Preliminary Question in the Conflict of Laws, 14 So. CAL. L. REv.
221, 243-49 (1941); Robertson, The "Preliminary Question" in the Conflict of Laws, 55
L.Q. REV. 565 (1939) ; Gotlieb, The Incidental Question in Anglo-American Conflict of Laws,
33 CAn. B. Rav. 523, 555 (1955).
255 See discussion in M. Traynor, supra note 240, at 874, comparing Estate of Lund,
26 Cal. 2d 472, 159 P.2d 643 (1945), with In re Presley's Estate, 113 Okla. 160, 240 Pac. 89
(1925).
256357 F.2d 581 (D.C. Cir. 1965).
CALIFORNIA LAW REVIEW
[Vol. 55: 74
formed still another potential choice-of-law problem into a "false conflict.' 25 7 For it avoided altogether the relevance of the law of New Jersey,
domicile of the plaintiff and a state with an immediate interest in the issue
of his recovery. The court succeeded in ignoring New Jersey law because
it had not been properly pleaded and proved. 58 Counsel for appellant
"characterized" 25 9 the issue of vehicle registration as one in contract and
urged application of New York law as lex loci contractus6 Counsel for
appellee, on the other hand, characterized the action as one tort and urged
application of District law as lex loci delicti2 6 Neither party raised the
issue of New Jersey's interest in the litigation 2 By refusing to take
judicial notice of an unpleaded law, the court resolved the case without
inquiring whether the laws of New Jersey, as an interested state, conflicted with those of New York. 63
If the court finds in a multi-state case that counsel have failed to plead
the law of any state having a real interest in the suit, it may either dismiss
on forum non conveniens grounds or take judicial notice of an applicable law 26 5 If the court finds that counsel have failed to plead the law of
257 See Currie, On the Displacement of the Law of the Forum, 58 CoLum. L. Rav. 964,
965 (1958). To say that the case of unpleaded foreign law presents a "false conflict" is not to
deny that a true conflict would ensue if such law were pleaded. Although a true conflict
might confront the court if all applicable laws were before it, failure to plead such laws
precludes the court from facing that issue.
258 For the problems of pleading and proving foreign law, see CHEATHAm, GOODRICi,
GiaswoLD, & REEsE, CoNamICT OF LAWS 351-417 (4th ed. 1957); EHRENZWFIO, CONFLCT
OF LAws §§ 121-23, 126-29 (1962) ; 2 WioRE, EVmDENCE § 566 (3d ed. 1940) ; 3 id. § 690;
4 id. § 1271; 5 id. §§ 1633, 1674; 7 id. § 1953; 9 id. §§ 2436, 2558, 2573; Nussbaum, The
Problem of ProvingForeignLaw, 50 YALE L.. 1018, 1044 (1941).
259 For a discussion of characterization in conflict of laws, see EUMxNzwExa, CoNFICT
OF LAWS §§ 109-15 (1962).
260 Brief for Appellant, pp. 25-26, Williams v. Rawlings Truck Lines, Inc., 357 F.2d 581
(D.C. Cir. 1965).
261 Brief for Appellee, Goldberger, p. 7, Williams v. Rawlings Truck Line, Inc., supra
note 260.
262 It is interesting in view of the District's dissatisfaction with the Restatement, Conflict of Laws, that counsel for both parties in Williams based their conflicts arguments on
the Restatement. Cf. Tramontana v. SA. Empresa de Viacao Aerea Rio Grandense, 350
F.2d 468, 471 (D.C. Cir. 1965), cert. denied, Tramontana v. Varig Airlines, 383 U.S. 943
(1966) ("The Supreme Court in its decisions . ..has recognized the inadequacies of the
theoretical underpinnings of Slater and its progeny. The latter cases have a highly attenuated
precedential weight, both in authority and reason. Thus we are free to explore the question
presented by this appeal in the light of the newer concepts of conflict of laws.").
263 See Currie, On the Displacement of the Law of the Forum, 58 CoL'UM. L. Rav. 964,
965 (1958). In an action by a New Jersey plaintiff against a New Jersey registered owner,
it has been held that the registered owner may show passage of equitable title. Smith v. Kirby,
113 N.J. 10, 172 At. 41 (1934).
2 64
265
EmtENzwEIo, CoNFcr or LAWS §§ 34-35 (1962).
To date 28 jurisdictions have adopted the UNIFoRm JUDICIAL NoTicE OF FOREIGN
LAW AcT, 9A U.L.A. 550 (1965) and several states have enacted other similar statutes. See,
e.g., CAL. Evin. CODE §§ 311, 450-55, 459, 1452-53; N.Y. Civ. PRAc.LAW &RULES, Rule 4511.
1967]
FALSE CONFLICTS
an interested state, it may take notice of, and apply that law. However,
to say that the court must seek still other applicable laws when one has
been properly raised or judicially noticed is to misconstrue the judicial
function in governmental-interest analysis. It is not for the court to
generate true conflicts by taking judicial notice of potentially applicable
laws when counsel have agreed to resolve their dispute under laws properly before the court.2 66
The language of governmental-interest analysis is misleading to the
extent that it implies that "interested" states claim to dictate governing
law.26 To say that a state is interested in a particular suit is to say that
one of the parties to that suit stands in a relationship with that state such
as to justify his claiming the protection of its laws. If that party feels he
would be better protected under the laws of another interested state, the
first state cannot be said to have suffered any real injury. The interest of
a state consists in extending the protective arm268 of its legislation, not in
insisting on its application.2 6 9 The decision to seek that protection lies
with the litigant.
Standards of due process are met by the application of the law of at
least one interested state.2 7° That the laws of other interested states have
not been pleaded and will not be raised has no constitutional significance.
Having met minimum requirements of due process, the court should leave
the raising of potentially applicable laws, the analysis of policy underlying
them, and the presentation of governmental interests to the realm of trial
For a discussion of judicial notice and the conflict of laws, see Comment, 1966 DuKE LJ.
512; Note, 18 VAND. L. Rv. 1962 (1966).
266 Currie, On the Displacement of the Law of the Forum, 58 CoLmU. L. Rnv. 964, 965
(1958). See also Leary v. Gledhill, 8 N.J. 260, 269-70, 84 A.2d 725, 729-30 (1951) ; Russell v.
Societe Anonyme des Etablissements Aeroxon, 268 N.Y. 173, 197 N.E. 185 (1935); Leflar,
Choice-Influencing Considerationsin Conflicts Law, 41 N.Y.U.L. REv. 267, 303-04, 326 (1966).
An exception to this rule might be made in a case where the unpleaded law of an interested
state is forum law. Even though the law of an interested state is before the court, judicial
notice might be taken independently of unpleaded forum law if that law reveals strong forum
policy against disposition of the case under pleaded law. For the "public policy" exception
generally in conflict of laws, see Paulsen & Sovern, "Public Policy" in the Conflict of Laws,
56 CoLumr. L. Rav. 969 (1956).
267
EmmpNzwG, Col
"cTor LAws § 122, at 349 (1962).
268 Dym v. Gordon, 16 N.Y.2d 120, 125, 209 N.E.2d 792, 794, 262 N.Y.S.2d 463, 467
(1965).
269 Clark v. Clark, 222 A.2d 205, 208-09 (1966) ("In most private litigation the only
real governmental interest that the forum has is in the fair and efficient administration of
justice . . !.).
270 Currie, The Constitution and the Choice of Law: Governmental Interests and the
Judicial Function, 26 U. Cm L. Rav. 9, 16 (1958); Leflar, Constitutional Limits on Free
Choice of Law, 28 LAw & CONTEmp. PRoB. 706, 711 (1963). See also Currie & Schreter,
UnconstitutionalDiscrimination in the Conflict of Laws: Equal Protection, 28 U. CHL L.
Rxv. 1 (1960); Currie & Schreter, Unconstitutional Discriminationin the Conflict of Laws:
Privileges & Immunities, 69 YALE L.J. 1323 (1960).
CALIFORNIA LAW REVIEW
strategy.27 1 The court has no duty to generate true conflicts where none
have been raised by the parties.
CONCLUSION
The concept of false conflicts has wide appeal and diverse meaning.
In some cases, it is used to describe situations in which choice of law is
moot. In other cases, it is used to describe the choice-of-law process itself.
And in still other cases, it is used to describe situations in which choice
of law has already been made. In each case, however, by characterizing a
choice-of-law problem as a false conflict, the courts are asserting that only
one law can be rationally applied to the facts at issue. The concept of
false conflicts has value for courts which are sufficiently sophisticated to
engage in the kind of reasoning it presupposes. The concept is also useful
in eliminating as forceful precedent those choice-of-law cases which are
found to have involved no real conflict. But it is no shibboleth for solving
the problems of private international law. Rather it is a challenge to counsel and courts alike to abandon the talismans of the past by confronting
the task of accommodating legitimate state interests.
Peter Kay Westen
271
Clark v. Clark, 222 A.2d 205, 208-09 (N.H. 1966).