American Conflicts Revolution in the United States

A period of considerable original legal thought beginning about 1930, when the theory of U.S. private international law changed dramatically, affecting legal theory both within and outside of the United States. See Tetley, Int’l C. of L., 1994 at pp. 9-23, 446-448; Tetley, (1999) 38 Columbia Journal of Transnational Law at pp. 307-322.

Some of the main theorists associated with the American conflicts revolution were:

• Baxter, W.F., in 1963, published his theory of comparative impairment, effectively, giving further refinement to the weighing of interests. The objective is not to apply the law that is necessarily suited to the dispute, but rather the law, which, by its application, least impairs the other state’s policies. See Tetley, Int’l C. of L., 1994 at pp. 13.
• Beale, Joseph H. in 1934 was principally responsible for the First Restatement, although a committee did aid in refining it. The First Restatement was generally adopted by the courts and ultimately contested by the scholars, particularly by Brainerd Currie (who espoused governmental interest analysis) and by W. Wheeler Cook and Albert Ehrenzweig (who argued in favour of the lex fori). See Tetley, Int’l C. of L., 1994 at pp. 7, 24, 34, 427.
• Cavers, David F., in the Choice-of-Law Process (1965), developed the framework for the principles of preference. Tetley,  (1999) 38 Columbia Journal of Transnational Law at pp. 307-322
• Cook, Walter W. (1873-1943) in 1941 and Albert A. Ehrenzweig in 1967, advocated the single concept that the lex fori provided justice in conflict of law cases. See Tetley, Int’l C. of L., 1994 at pp. 9-10, 24-26.
• Currie, Brainerd, (1912-1965) in Selected Essays on the Conflict of Laws (1963), developed the doctrine of governmental interest analysis. Currie advocated the application, in almost all cases, of the lex fori. He was also instrumental in developing the distinction between true conflicts and false conflicts. See Tetley, Int’l C. of L., 1994 at pp. 12, 24, 40.
• Juenger, F.K. in 1993 arrived at his own “substantive or teleological approach”- that the proper law be chosen by result-oriented conflict rules, thus attaining a just solution. In effect, Juenger called for “multistate justice” to be “dispensed everywhere, … a new ius commune” to solve conflict of law problems. See Tetley, Int’l C. of L., 1994 at pp. 7, 15-16, 17, 448-449.
• Leflar, Robert A. in 1966 replaced evaluating each government’s interest with a systematic analysis in conflicts of law cases, known widely as the “better rule of law” theory. See Tetley, Int’l C. of L., 1994 at pp. 14.
• McDougal, Luther L. published an article in 1984, in which he went one-step further than LeFlar, in developing the “best law” doctrine. Instead of choosing between two interests, one must “first identify all interests… [being]…the interests asserted by the decision makers of all significantly affected states.” McDougal, however, has lately modified his position, leaning towards a more teleological or result-oriented philosophy. See Tetley, Int’l C. of L., 1994 at pp. 15, 448-449.
• Mehren, Arthur T., von and Donald T. Trautman, in the Law of Multistate Problems (1963), introduced a system of weighing the strengths of conflicting state policies in order to choose the applicable law without Currie`s emphasis on the lex fori. Their theory is best known as functional interest analysis. See Tetley, Int’l C. of L., 1994 at p.13.
• Reese, Willis M., in the Restatement Second (1969), expanded on Morris’ “most significant connection”, creating a set of multiple rules based on the principle that the applicable law is the law, which has the “most significant relationship”. See Tetley, Int’l C. of L., 1994 at pp. 12-13, 24.
• Weintraub, Russell J. (infra) in 1986 went beyond “functional analysis” and evaluating mere interest, in developing abbreviated choice of law rules for both tort and contract. See Tetley, Int’l C. of L., 1994 at pp. 13-14, 448.

From: William Tetley