ABDULLAHI V. PFIZER
The claim for improper pre-
FACTS: During the meningitis epidemic in Nigeria, Pfizer attempted to
obtain FDA approval for a new antibiotic Trovan. A group of Nigerian
children and their guardians sued Pfizer in US Federal Court under the
Alien Tort Statute, alleging that Pfizer experimented on these children
without their consent and knowledge, further alleging that Pfizer
purposefully underdosed children with an FDA-approved drug to skew
trial results in their favor. The plaintiffs also claimed that the trial led to
the deaths of 11 children and serious injuries to many others.
The lower court dismissed the case on grounds of forum non
conveniens and failure to show sufficient legal source for int’l prohibition
of non-consensual medical treatment.
The US CA reversed the lower courts’ dismissal of the case and held
that the prohibition of non-consensual medical experimentation on
humans is binding under customary international law. Pfizer petitioned
the US Supreme Court to hear an appeal of the CA’s ruling.
ISSUE: WON an alleged transgression of international law constitutes a
norm of the law of nations and thus represents a triable issue under the
ATS?
HELD: Yes. The Second Circuit clarified that a norm of international law
actionable under the ATS must be a norm that is (1) universally
adhered to by States out of sense of legal obligation, (2) specific and
definable, and (3) of "mutual" concern to States as opposed to "several"
concern to individual States.
In determining whether nonconsensual medical experimentation rises to
the norm of international customary law, the Second Circuit referred to
the four sources listed in Article 38 of the Statute of the International
Court of Justice: (1) "international conventions" or treaties expressly
accepted by States; (2) "international custom, as evidence of a general
practice accepted as law"; (3) "the general principles of law recognized
by civilized nations"; and (4) "judicial decisions and the teachings of the
most highly qualified publicists of the various nations" as a secondary
source of legal rules.
As evidence of customary international law prohibiting nonconsensual
medical experimentations on human subjects, Plaintiffs cited the
Nuremberg Code, the World Medical Association's Declaration of
Helsinki, the Ethical Guidelines by the Council for International
Organizations of Medical Services, and article 7 of the International 6
Covenant on Civil and Political Rights ("ICCPR").
The court admitted that none of the international legal authorities,
except the ICCPR, had been ratified by the U.S., and thus these
authorities, taken individually, would not have binding legal power in
U.S. federal courts. Nevertheless, the court also said that these non-
obligatory international legal norms "may, with time and in conjunction
with state practice, provide evidence that a norm has developed the
specificity, universality, and obligatory nature required for ATS
jurisdiction.
Thus, even international agreements that are not self-executing or that
have not been ratified by the United States can constitute evidence of
the norm of customary international law broadly accepted by the
international community.
HASEGAWA V. KITAMURA
FACTS: Japanese consultancy firm Nippon entered into an
Independent Contract Agreement with Kitamaru to work as the project
manager of the Southern Tagalog Access Road Project. Hasegawa
later on informed Kitamaru that the company had no more intention of
automatically renewing his ICA. Nippon insisted that Kitamaru’s
contract was for a fixed term that had expired. Kitamaru then filed for
specific performance and damages with the RTC of Lipa City.
Nippon filed a motion to dismiss and contended that the ICA had been
perfected in Japan, executed by and between Japanese nationals.
1
Thus, RTC of Lipa City has no jurisdiction.
termination of Kitamaru’s ICA could only be heard and ventilated in the
proper courts of Japan following the principles of lex loci celebrationis
and lex contractus.
RTC denied the MTD. CA ruled that the principle of lex loci
celebrationis was not applicable to the case, because nowhere in the
pleadings was the validity of the written agreement put in issue. It held
that the RTC was correct in applying the principle of lex loci solutionis.
ISSUE: WON the subject matter jurisdiction of PH courts in civil cases
for specific performance and damages involving contracts executed
outside the country by foreign nationals may be assailed on the
principles of lex loci celebrationis, lex contractus, the state of the most
significant relationship rule, or forum non conveniens.
HELD: NO. In the judicial resolution of conflicts problems, three
consecutive phases are involved: (1) jurisdiction – where can or should
litigation be initiated, (2) choice of law – which law will the court apply,
and, (3) recognition and enforcement of judgments – where can
resulting judgement be enforced.
Jurisdiction considers whether it is fair to cause a defendant to travel to
this state; choice of law asks the further question whether the
application of a substantive law which will determine the merits of the
case is fair to both parties. The power to exercise jurisdiction does not
automatically give a state constitutional authority to apply forum law.
While jurisdiction and the choice of the lex fori will often coincide, the
“minimum contacts” for one do not always provide the necessary
“significant contacts” for the other.
In this case, only the first phase is at issue—jurisdiction, which has
various aspects. For a court to validly exercise its power to adjudicate a
controversy, it must have jurisdiction over the plaintiff/petitioner, over
the defendant/respondent, over the subject matter, over the issues of
the case and, in cases involving property, over the res or the thing - the
subject of the litigation.
In assailing the TC’s jurisdiction, Nippon is actually referring to subject
matter jurisdiction. Jurisdiction over the subject matter in a judicial
proceeding is conferred by the sovereign authority which establishes
and organizes the court. It is given only by law and in the manner
prescribed by law. It is further determined by the allegations of the
complaint irrespective of whether the plaintiff is entitled to all or some of
the claims asserted therein. To succeed in its motion for the dismissal
of an action for lack of jurisdiction over the subject matter of the claim,
the movant must show that the court or tribunal cannot act on the
matter submitted to it because no law grants it the power to adjudicate
the claims.
Nippon, in its MTD, does not claim that the RTC is not properly vested
by law with jurisdiction to hear the subject controversy for a civil case
for specific performance and damages is one not capable of pecuniary
estimation and is properly cognizable by the RTC of Lipa City. What
they rather raise as grounds to question subject matter jurisdiction are
the principles of lex loci celebrationis and lex contractus, and the “state
of the most significant relationship rule.”
Lex loci celebrationis relates to the “law of the place of the ceremony”
or the law of the place where a contract is made. The doctrine of lex
contractus or lex loci contractusmeans the “law of the place where a
contract is executed or to be performed.” It controls the nature,
construction, and validity of the contract and it may pertain to the law
voluntarily agreed upon by the parties or the law intended by them
either expressly or implicitly. Under the “state of the most significant
relationship rule,” to ascertain what state law to apply to a dispute, the
court should determine which state has the most substantial connection
to the occurrence and the parties. In a case involving a contract, the
court should consider where the contract was made, was negotiated,
was to be performed, and the domicile, place of business, or place of
incorporation of the parties.
Since these three principles in conflict of laws make reference to the
law applicable to a dispute, they are rules proper for the second phase:
the choice of law. They determine which state's law is to be applied in
resolving the substantive issues of a conflicts problem. Nippon’s
premature invocation of choice-of-law rules is exposed by the fact that
they have not yet pointed out any conflict between the laws of Japan
and ours. Before determining which law should apply, first there should
exist a conflict of laws situation requiring the application of the conflict
of laws rules. Also, when the law of a foreign country is invoked to
provide the proper rules for the solution of a case, the existence of such
law must be pleaded and proved.
It should be noted that when a conflicts case involving a foreign
element is brought before a court or administrative agency, there are
three alternatives open to the latter in disposing of it: (1) dismiss the
case, either because of lack of jurisdiction or refusal to assume
jurisdiction over the case; (2) assume jurisdiction over the case and
apply the internal law of the forum; or (3) assume jurisdiction over the
case and take into account or apply the law of some other State or
States.
The court’s power to hear cases and controversies is derived from the
Constitution and the laws. While it may choose to recognize laws of
foreign nations, the court is not limited by foreign sovereign law short of
treaties or other formal agreements, even in matters regarding rights
provided by foreign sovereigns.
Neither can the other ground raised, forum non conveniens, be used to
deprive the RTC of its jurisdiction. First, it is not a proper basis for a
motion to dismiss (Sec. 1, Rule 16 of the ROC), Second, whether a suit
should be entertained or dismissed on the basis of the said doctrine
depends largely upon the facts of the particular case and is addressed
to the sound discretion of the RTC. In this case, the RTC decided to
assume jurisdiction. Third, the propriety of dismissing a case based on
this principle requires a factual determination; hence, this conflicts
principle is more properly considered a matter of defense.
HELD: The foreign divorce decree is presumptive evidence of a right
that clothes the party with legal interest to petition for its recognition in
this jurisdiction. The Court held that the second paragraph of Art. 26 of
the FC bestows no rights in favor of aliens – with the complementary
statement that this conclusion is not sufficient basis to dismiss Corpuz’
petition before the RTC.
The unavailability of the second paragraph of Art. 26 of the FC to aliens
does not necessarily strip Corpuz of legal
interest to petition the RTC for the recognition of his foreign divorce
decree. The foreign divorce decree itself, after its authenticity and
conformity with the alien’s national law, have been duly proven
according to our rules of evidence, serves as
a presumptive evidence of right in favor of Gerbert (Pursuant to Sec.
48, Rule 39 of the ROC which provides for the effect of foreign
judgments).
Effect of foreign judgments or final orders.—The effect of a judgment or
final order of a tribunal of a foreign country, having jurisdiction to render
the judgment or final order is as follows: In case of a judgment or final
order upon a specific thing, the judgment or final order is conclusive
upon the title of the thing.
To our mind, direct involvement or being the subject of the foreign
judgment is sufficient to clothe a party with the requisite interest to
institute an action before our courts for the recognition of the foreign
judgment. In a divorce situation, we have declared, no less, that the
divorce obtained by an alien abroad may be recognized in the
Philippines, provided the divorce is valid according to his or her national
law

CORPUZ VS. STO. TOMAS, THE SOLICITOR GENERAL

FACTS: This is a petition for review on certiorari seeking a direct

appeal from the decision of the RTC Laoag City. Petitioner Gerbert R.
Corpus, a naturalized Canadian citizen who married respondent
Daisylyn Tirol Sto. Tomas, subsequently left for Canada due to work
and professional commitments.

When he returned to the Philippines, he discovered that Sto. Tomas

was already romantically involved with another man. Corpuz then filed a
petition for divorce in Canada which was eventually granted by the
Court Justice of Windsor, Ontario, Canada. A month later, the divorce
decree took effect.

Two years later, Corpuz has fallen in love with another Filipina and
wished to marry her. Despite the registration of the Canadian divorce
decree of his marriage certificate with Sto. Tomas, an official of NSO
informed him that the former marriage still subsists under the PH law
until there has been a judicial recognition of the Canadian divorce by a
competent judicial court. Consequently, he filed a petition for judicial
recognition of foreign divorce and/or declaration of dissolution of
marriage with RTC.

RTC denied the petition as Corpuz cannot institute the action for judicial
recognition of the foreign divorce decree because he is a naturalized
Canadian citizen. Providing further that Sto. Tomas was the proper
party who can institute the action under the principle of Art. 26 of the
Family Code which capacitates a Filipino citizen to remarry in case the
alien spouse obtains a foreign divorce decree.

ISSUE: WON the second paragraph of Art. 26 of the FC grants aliens

like Corpuz the right to institute a petition for judicial recognition of a
foreign divorce decree.

2

THEORY OF COMITY
IN RE: MAX SHOOP
FACTS: Max Shoop is applying for admission to practice law in the PH
under Par. 4 of the Rules for the Examination of Candidates for
Admission to the Practice of Law. It was shown in his application that
he was practicing for more than 5 years in the highest court of the State
of New York.
The rule requires that, New York State, by comity confers the privilege
of admission without examination under similar circumstances to
attorneys admitted to practice in the PH Islands. (Aside from comity, the
satisfactory affidavits of applicants must show they have practiced at
least 5 years in any (district or circuit or highest) court of the US or
territory of it. But admission is still in the discretion of the court.) - The
rule of New York court, on the other hand, permits admission without
examination in the discretion of the Appellate.
ISSUE: W/N the principle of comity was established under the NY rules
as to the PH islands
HELD: Yes. Comity would exist as if we are a territory of the US. the
construction of what is intended by the use of that phrase “any other
state or territory of the American Union or in the District of Columbia” is
for the NY courts finally to determine, but in the absence of any
authoritative decision from the NY courts on the point, we feel justified
in concluding that under paragraph 1 of the NY rule, there exists
between that jurisdiction and this, with reference to admission of
attorneys without examination, a basis of comity sufficient to satisfy the
requirement in the rule of this court in that regard.
HILTON V. GUYOT 159
FACTS: French national Guyot sued American Hilton and Libbey before
a French tribunal. Judgment was rendered in favor of the Frenchman.
Later, suit was filed in America to enforce the French judgment. The
American court discovered that: (a) the French trial was indeed fair and
impartial; and (b)  the French courts do not give full faith and credence
to decisions of American tribunals.
ISSUE: Should the American court enforce the French judgment?
HELD. No, because after all, French tribunals do not regard American
decisions with finality, even though the American courts had jurisdiction
and even if there had been a fair and impartial trial in America. The
Court, applying the principle of RECIPROCITY said that the
reasonable, if not the necessary, conclusion, appears to us to be that
judgments rendered in France, or in any other foreign country, by the
laws of which our own judgments are reviewable upon the merits, ARE
NOT ENTITLED to full credit and conclusive effect when sued upon in
this country, but are only prima facie evidence of the justice of the
plaintiffs claim.”
Comity, in the legal sense, is neither a matter of absolute obligation, on
the one hand, nor of mere courtesy and good will, upon the other.
COMITY is the recognition which one nation allows within its territory to
the legislative, executive or judicial acts of another nation, having due
regard both to international duty and convenience, and to the rights of
its own citizens, or of other persons who are under the protection of its
laws.
JOHNSTON V. COMPAGNIE GENERALE
FACTS: American plaintiff instituted an action against the defendant, a
French steamship corporation, to recover the value of fifty cases of
merchandise delivered to the defendant. The French court held against
3
the plaintiff. The American plaintiff tried again, but this time, in an
American court. The American judge found the French decision to be a
final judgment on the merits and devoid of fraud.
ISSUE: Will the French ruling be enforced in America?
HELD: Yes. The Court held that “Comity rests, not on the basis of
reciprocity, but rather upon the persuasiveness of the foreign judgment.
When the facts of the whole appear to have been inquired into by the
French courts, judicially, honestly, and with full jurisdiction and with the
intention of arriving at the right conclusion, and when they have heard
the facts and come to a conclusion, it shall no longer be open to a party
invoking the foreign court against a resident of France to ask the
American court to sit as a Court of Appeal from that which gave the
judgment.
The plaintiff, an American citizen, was the actor in the French court.
After having sought the jurisdiction of the foreign tribunal, brought the
defendant into that court and litigated the question there, he now seeks
to impeach the judgment rendered against him. The principles of comity
should give conclusiveness to such a judgment as a bar to the present
action.
MIJARES ET. AL V. HON RANADA ET AL
FACTS: Before the US District Court in Hawaii, a complaint was filed
against the Estate of Former PH Pres Ferdinand E. Marcos. Ten
Filipinos who each alleged having suffered human rights abuses such
as arbitrary detention, torture and rape, during Marcos regime. The
Alien Tort Act was invoked as a basis for jurisdiction over the complaint
as the suit involved tortious violations of international law. The US
District Court rendered a final judgment awarding 1 Billion dollars which
was also affirmed by the US CA.
To enforce the foreign judgement, plaintiffs filed a complaint before the
RTC of Makati. Marcos Estate filed a motion to dismiss for non-
payment of fees, and Hon. Judge Ranada dismissed the complaint.
When the Commission on Human Rights was permitted to intervene, it
urged the granting and enforcement of judgement pursuant to Sec. 48,
Rule 39 of the ROC. The CHR also invoked the principles of comity and
of vested rights.
ISSUE: WN the foreign judgement shall be enforced in this jurisdiction?
HELD: Yes. The rules of comity, utility and convenience of nations have
established a usage among civilized states by which final judgments of
foreign courts of competent jurisdiction are reciprocally respected and
rendered efficacious under certain conditions that may vary in different
countries. The procedural rule now outlined in Sect 48, Rule 39 of the
ROC states: SEC. 48. Effect of foreign judgments. 'The effect of a judgment
of a tribunal of a foreign country, having jurisdiction to pronounce the
judgment is as follows: (a) In case of a judgment upon a specific thing, the
judgment is conclusive upon the title to the thing; (b) In case of a judgment
against a person, the judgment is presumptive evidence of a right as
between the parties and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence
of a want of jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact. There is an evident distinction between a
foreign judgment in an action in rem and one in personam. For an
action in rem, the foreign judgment is deemed conclusive upon the title
to the thing, while in an action in personam, the foreign judgment is
presumptive, and not conclusive, of a right as between the parties and
their successors in interest by a subsequent title.
THEORY OF JUSTICE
CONTINENTAL MICRONESIA V. JOSEPH BASSO
FACTS: Foreign corporation Continental Micronesia Inc. (CMI) offered
US Citizen Joseph Basso a general manager position in their PH
branch. Then Basso received a letter that he has agreed to work as a
consultant on an “as need” basis. Basso filed a complaint for illegal
dismissal with moral and exemplary damages against CMI. CMI filed a
motion to dismiss for lack of jurisdiction over CMI and the subject
matter of controversy.
Labor Arbiter granted the MTD, stating the terms and provisions of the
employment contract show that the application of our Labor Code was
not intended. NLRC ruled that LA acquired jurisdiction over the case
when CMI presented evidence to his office. CA also held that both the
LA and NLRC had jurisdiction over the subject matter of the case and
over the parties.
ISSUE: Whether the CA erred in ruling that LA and NLRC had
jurisdiction to hear and try the illegal dismissal case.
HELD: NO. However, considering that LA and NLRC have jurisdiction
over the parties and the subject matter of this case, these tribunals may
proceed to try the case even if the rules of conflict-of-laws or the
convenience of the parties point to a foreign forum, this being an
exercise of sovereign prerogative of the country where the case is filed.
The Court agreed with CMI that there is a conflict-of-laws issue that
needs to be resolved first. Where the facts establish the existence of
foreign elements, he case presents a conflict-of-laws issue. The foreign
element in a case nay appear in different forms, such as in this case,
where one of the parties s an alien and the other is domiciled in another
state. The Labor Code, under Article 217, clearly vests original and
exclusive jurisdiction to hear and decide cases involving termination
disputes to the Labor Arbiter. Hence, the Labor Arbiter and the NLRC
have jurisdiction over the subject matter of the case.
As regards jurisdiction over the parties, we agree with the Court of Appeals
that the Labor Arbiter acquired jurisdiction over the person of Basso,
notwithstanding his citizenship, when he filed his complaint against CMI. On
the other hand, jurisdiction over the person of CMI was acquired through the
coercive process of service of summons.
Under the doctrine of forum non conveniens, a Philippine court in a conflict-
of-laws case may assume jurisdiction if it chooses to do so, provided, that
the following requisites are met: (1) that the Philippine Court is one to which
the parties may conveniently resort to; (2) that the Philippine Court is in a
position to make an intelligent decision as to the law and the facts; and (3)
that the Philippine Court has or is likely to have power to enforce its
decision.46 All these requisites are present here.
Basso may conveniently resort to our labor tribunals as he and CMI lad
physical presence in the Philippines during the duration of the trial. CMI has
a Philippine branch, while Basso, before his death, was residing here. Thus,
it could be reasonably expected that no extraordinary measures were
needed for the parties to make arrangements in advocating their respective
cases.
The choice-of-law issue in a conflict-of-laws case seeks to answer the
following important questions: (1) What legal system should control a
given situation where some of the significant facts occurred in two or
more states; and (2) to what extent should the chosen legal system
regulate the situation.47 These questions are entirely different from the
question of jurisdiction that only seeks to answer whether the courts of
a state where the case is initiated have jurisdiction to enter a
judgment.48 As such, the power to exercise jurisdiction does not
automatically give a state constitutional authority to apply forum law.4
CMI insists that US law is the applicable choice-of-law under the
principles of lex loci celebrationis and lex loci contractus. It argues that
the contract of employment originated from and was returned to the US
after Basso signed it, and hence, was perfected there. CMI further
claims that the references to US law in the employment contract show
the parties' intention to apply US law and not ours.
CMI asserts that the US law on labor relations particularly, the US
Railway Labor Act sanctions termination-at-will provisions in an
employment contract. Thus, CMI concludes that if such laws were
applied, there would have been no illegal dismissal to speak of because
the termination-at-will provision in Basso's employment contract would
have been perfectly valid.
4
Similarly, in Bank of America, NT&SA v. American Realty
Corporation,56 we ruled that a foreign law, judgment or contract
contrary to a sound and established public policy of the forum shall not
be applied. Thus: Foreign law should not be applied when its
application would work undeniable injustice to the citizens or
residents of the forum. To give justice is the most important
function of law; hence, a law, or judgment or contract that is
obviously unjust negates the fundamental principles of Conflict of
Laws.
Theory Wars in the Conflict of Laws
Louise Weinberg
Part I – AN INTELLECTUAL HISTORY of modern conflicts theory
and the controversies still plaguing it, and an introduction to the
power of modem choice-of-law analysis.
A. American Legal Realists
 The realists tore the polite veil of disinterestedness from the judicial
process. They made us see that, disingenuously or deludedly,
judges only professed to be complying with the command of
inexorable bright-line rules. And choice-of-law rules seemed very
bright-line indeed: "The law of the place of injury governs a tort."
"The law of the place of contracting governs a contract."
 Inevitably, judges were manipulating the seemingly fixed rules to
produce desired results, and in this way obscuring to themselves
and others the "inarticulate major premises" of their decisions.7
 LOCAL LAW THEORY: Walter Wheeler Cook argued that,
whatever law a court said it was choosing, however much a court
seemed to be subordinating its own law, a court always, in fact,
applied its own local law and policy. Otherwise it would not have
chosen the law that it did choose. Cook saw that a departure from
local law was as much an expression of actual local policy as an
application of local law.
B. Supreme Court
 The Court began to test choices of law as it does today, under THE
DUE PROCESS CLAUSE. The question for the Court was whether
a particular choice of law was so arbitrary and irrational as to
deprive the parties of the process that is due.
 In Home Insurance Co. v Dick, the Court held that the law of a state
without any relevant connection with a case could not rationally,
and therefore could not constitutionally, govern that case.10 To
exercise lawmaking power, a state should have some nexus, some
physical contact, with the case its law is supposed to govern. The
Court began to see that a mere physical contact, by itself, might not
be sufficient. In other words, was the contact significant, for
purposes of establishing constitutional power?
 the Supreme Court began to see that both states might have
constitutional power. For example, the law chosen in a multistate
case of tort, when there was a contractual relation between the
parties, could be either the law of the place of injury or the law of
the place of contracting - as the Court specifically held, by Justice
Stone, in 1939.1
 The foundation for the foregoing was held in Alaska Packers v.
Industrial Accident Commission. 14 where the Court began the long
process of weaning the bar from its conviction (still an article of faith
with some lawyers today) that in a two-state case, American courts
are required by THE FULL FAITH AND CREDIT CLAUSE to defer
to the law of the other state. In fact, there is no obligation of full faith
and credit to a sister state's laws - as opposed to a sister state's
judgments 15. But if he obligation of full faith and credit attached to
laws, we would have what Stone called an "absurd" result Perhaps
Stone saw this result as "absurd" because it would obliterate the
common law of choice of law. Or perhaps it was absurd to him
because it would flout the will of the legislature at the forum in every
two-state case. Or perhaps because it would strip a court of power
to enforce the substantive law of its own state. I suspect, though,
 that Justice Stone thought it "absurd" simply because of the oddity
of the crisscross arrangement, by which each of the two states
would have to rely on the other to furnish law for a case.
 In Franchise Tax Board v. Hyatt 17, Justice O'Connor, writing for
the Court, pointed out that the Court's body of precedent
"differentiates the credit owed to laws ... and to judgments." some
constitutional conflicts cases are still argued under the Full Faith
and Credit Clause. But the Supreme Court treats such cases as if
argued under the Due Process Clause.
 The innovative Supreme Court cases of the 1930s taught that in a
two-state case in tort, the law chosen did not have to be the law of
the place of injury, nor, in a contract case, did it have to be the law
of the place of contracting - nor, indeed, any other single place. In
cases combining tort and contract elements, both places would
have constitutional power.
 Today the leading modern due process cases are Allstate
Insurance Co. v. Hague21 and Phillips Petroleum Co. v. Shutts.22
Under these cases the Court requires that the law chosen to govern
an issue be the law of a state having sufficient "contacts"with an
issue to generate state "interests" in governance of that issue.
These interests must be sufficient to ensure that application of the
chosen law will be neither "arbitrary" nor "fundamentally unfair."23
C. Advent of Interest Analysis
 Brainerd Currie’s Married Women’s Contracts: A Study in Conflict of
Laws Method. In Millikin v. Pratt, Pratt of Massachusetts, trying to
embark on a new business venture involving goods shipped from
Maine, prevailed on his wife to guarantee his payments to his
Maine supplier, the Milliken company. Mr. Pratt, putting his wife's
separate property at risk, posted her complaisantly signed
guarantee in a mailbox in Massachusetts. Times were hard and
Pratt's new venture went awry. When the Pratts failed to pay,
Milliken came down to Massachusetts to sue Mrs. Pratt on her
guarantee.
 The Pratts defended on the ground that, under the law of
Massachusetts in effect when Mrs. Pratt signed that piece of paper
(repealed shortly thereafter), married women had no capacity to
contract. Under the law of Maine, however, Mrs. Pratt's guarantee
was good. Maine had long ago disembarrassed itself of a rule
denying married women the capacity to contract.
 The Supreme Judicial Court of Massachusetts famously held for the
Maine creditor. Chief Justice Gray decided that the law of the place
of contracting must govern a contract case in its entirety, even on
the issue of capacity.He rejected the law of the domicile to govern
the capacity of its domiciliaries, although that was a standard
choice at the time. Massachusetts' highest court denied a
Massachusetts resident the protections of Massachusetts law,
invalidating a Massachusetts married woman's contract signed by
her in Massachusetts, in order to allow a nonresident creditor to
collect.
 The tack Currie took was simply to chart all sixteen possible
permutations of Milliken v. Pratt by allocating either to Maine or
Massachusetts each of the four main "contacts" in the case (Mrs.
Pratt's domicile, Milliken's place of incorporation, the place of trial,
and the place of contracting). , a state's physical contact with a
case might not matter. A state's contact with a case needed to be
significant. It would not be significant, Currie argued, unless the
relevant policies and interests of that state would be advanced by
application of its actual law to the actual facts of the particular case.
 Currie was able convincingly to determine the significance of a
physical contact. Currie called his new method "governmental
interest analysis." In case of either interest analysis the Supreme
Court uses in interstate conflicts cases under the Due Process
Clause and the interest analysis the Court uses in substantive
constitutional cases, burden falls on one of the parties to show that
the state has some rational basis for the application of its laws - a
legitimate governmental interest.
 The state, therefore, would have general interests in compensating
anyone injured within its borders, residents and visitors alike. Only if
its law was defendant-deterring orplaintiff-favoring, then, could the
5
law ofthe place of injury, qua place of injury, rationally apply in a
case of personal injuries.
 Interest analysis is an imperishable contribution to the rational
application of law. Yet interest analysis was only, at bottom,
ordinary statutory construction and ordinary interpretation of case
law.
 Currie knew that the supposedly fixed rules could be putty in judicial
hands. He doubted that the traditional rules were capable of
uniform application. But even supposing that they were, Currie
argued that the price of uniformity was too high.31 Under careful
interest analysis, Currie conclusively demonstrated that a principled
application of the old territorial rules would chronically thwart the
policy of one of the two states without advancing any policy of the
other.
 A large number of the possible Millikens on the chart in which the
laws of the two states were in conflict were what Currie called
"FALSE CONFLICTS." In these cases, notwithstanding that the
laws of the two states did seem to conflict, only one of the two
states was an "interested" one. Only one of the two had law that
could rationally govern the particular situation. These were cases of
false conflict because only one of the two states had a dog in the
fight. This identification of false conflicts was a revelation. And the
obvious solution of a false conflict is to apply the law of the only
interested state.
 Using interest analysis, Currie also was able to identify "true
conflicts." These were cases like the real Milliken v. Pratt, in which
each of the two states was an "interested" one, in the sense that
either state's laws could rationally (and constitutionally) apply. And
in other early work he would also identify the "unprovided-for case,"
the case in which neither state has a legitimate governmental
interest.33
 But his true conflicts and unprovided-for cases presented problems
he believed could not be solved, though he suggested that the
forum fall back on its own law. No doubt it helped, in reaching this
conclusion for true conflict cases, that Alaska Packers had held the
forum to be under no obligation of full faith and credit to apply the
other state's law.
 As for unprovided-for cases, the forum, having jurisdiction over the
case and the parties, would have sufficient administrative interest
by virtue of those facts to make its law available as residual law, a
more clearly constitutional choice, Currie thought, than a choice of
the other state's law.
D. State Courts
 Chief Judge Stanley H. Fuld in New York chased the chimera of a
discernible "center of gravity" of a case,34 and Chief Justice Roger
Traynor in California began to use analyses of the policies and
interests of the concerned states.3
 Traynor brought a characteristic accommodationist perspective to
his conflicts cases. In cases of true conflict, he typically wound up
subordinating California's interests to those of sister states, or of the
interstate system itself
 Eventually Traynor would propose an influential "comparative
impairment" model for resolution of true conflicts.37
Part II – POLITICS OF CONFLICTS: A brief look at the politics of the
controversy.
 Second Restatement appears to abandon the place of injury, the
place of contracting, and so forth, relying instead upon the place of
"most significant contact." And the law of the place of injury still
presumptively governs a tort; the law of the place of contracting still
presumptively governs a contract.42
 Modem conflicts theory has become ensnarled in unending, heated
debate between traditionalists and modernists, those who favor
rules and those who favor "approaches," and between the
vociferous critics of interest analysis and its defenders.
 In conflicts of tort law, methods that tend to yield plaintiff-favoring
law are thought to be favored by liberals, methods that tend to yield
defendant-protecting law by conservatives.
 Choices that yield forum law are considered parochial, and because
the plaintiff chooses the forum, choices of forum law are decried as
plaintiff oriented. Choices that extend comity to the (usually)
defendant favoring law of a sister state43 are considered illiberal,
unjust, and defense-oriented.
 Because traditional territorialist methods are at least superficially
"neutral," striking with even-handed ferocity now at plaintiffs, now at
defendants (and because, by nature, conservatives are comfortable
with things familiar), conservatives tend to favor "rules."
 Liberals, on the other hand, are unnerved by the mere
contemplation of ferocity, evenhanded or not. They tend to feel
more comfortable with "approaches."
 The interest analysts' typical preoccupation with the states in which
the parties are based is considered unprincipled by conservatives;
and the forum preference characteristic of interest analysis is
thought unacceptably indulgent to the plaintiff and the parochial,
selfish state.
Part III - a recent empirical turn in the literature, of which Dean
Symeonides' work is a superior example.
 The American Choice-of-Law Revolution is far more concerned with
actual cases in the courts than with theoretical abstractions.
Symeonides limits his field of observation to cases of tort, the
setting for most choice-of-law litigation.
 How is the outcome of a tort case related to the choice-of-law
method employed? How does this relationship fare for different
case patterns?
 He looks at different substantive fields of tort law, cases in which
"conduct-regulating" rules are at issue and cases in which "loss
allocating rules" are at issue.
 The American Choice-of-Law Revolution argues that the choice-of-
law process needs rules, but the rules it is talking about would give
the courts the guidance, as seen in an improving mirror, of their
own reflection.
 interest analysis is the very language of contemporary conflicts
theory, and although few courts can be said to have adopted it in
any formal way, it often furnishes the language of courts that have
formally adopted some other technique.
In Part IV, using interest-analytic methods, dig into Symeonides'
treatment of irrationality in choices of law.
 He notes that, even when the defendant-favoring law was forum
law, forum law was applied not as residual law, as Currie
recommended, but - in the absence of significant contacts at the
forum - on the basis of insignificant contacts.
 Sometimes the law of the uninterested place of injury was chosen
to protect the tortfeasor - a thoroughly irrational result, since, as we
have seen, the general public policy of a place of injury would
undoubtedly be better served by application of the remedial law
available at the forum.
 Material justice
 Conflicts justice
 Principle can prevail over mere sympathy. The forum must be
neutral, not "selfish" and "unilateral." These cautionary ideas
become even more imperative, in his view, when the forum is an
uninterested one.
 An aggregation of contacts is useful in otherwise unprovided-for
cases.
 as Symeonides is fully aware, application of the defendant-
protecting law of an uninterested state in a case of tort is irrational
and unjust. Such a result is obviously a denial of material justice.
But I part company with Symeonides when he does not find such a
result too irrational to fit his idea of conflicts justice.
 Courts must presume the truth of a complaint in hearing argument
on a choice-of-law issue bearing on ultimate liability.
6
 The best that can be said of a tort case applying the defendant-
protecting law of an uninterested state is that at least the defense
was good under some state's law, and at least the defendant with
this plausible though irrelevant defense was protected from having
to pay for his tort, with whatever social benefits in here in allowing
defendants or their insurers to keep their money.
 On the other hand, the plaintiff-favoring law in an unprovided-for
case is likely, at least, to reflect general policies both states share.
Although no law "applies" in an unprovided-for case, all states
share the general policies underlying tort law, policies favoring
compensation, deterrence, and risk spreading. Defenses, on the
other hand, often embody special local concerns that may not
reflect substantive policies that are as widely shared.51
 A just result is not a bad thing. Result orientedness, unprincipled as
it is said to be, may not be as bad as the unjust results avoided by
it.52
Part V – THE LAW OF THE FORUM: The advisability of a return to the
law of the forum for intractable cases
 As far as a default position is concerned, it might not be a bad idea
to return to Brainerd Currie's original recommendation of residual
forum law for the insoluble choice-of-law problem. It certainly ought
to work for Dean Symeonides, if only because, historically, forum
law has been the overwhelming judicial choice. After all, judges are
sworn to enforce and uphold their own states' laws.
 Consider also that plaintiffs are likely to litigate at home, an
observation Dean Symeonides finds substantiated statistically, and
that forum law is very likely to be constitutional if it favors the
resident plaintiff, since she is likely to be within its intended
protections.
 Systematic choices of plaintiff-favoring law are better public policy
than systematic choices of defendant-favoring law. When
defendants engage in risky activities in reliance upon lax standards
in their home states, shared public policies (favoring safety and fair
dealing) would seem better served not by indulging such
defendants in their race to the regulatory bottom, but rather by
permitting plaintiffs injured by those activities to seek enforcement
of higher legal standards.
 Thus, the forum generally will have sound reasons to apply its own
law. And forum law is likely to favor the plaintiff, since the forum is
the plaintiff's to choose.
 A departure from defendant- favoring forum law would also
discriminate between defendants in domestic cases, who are
protected from liability, and defendants in conflicts cases, who are
not. The forum can escape this bind by frankly acknowledging that
the other state's remedial law is "better" law, and adopting it as its
own.58
Part VI – LOSS OF INNOCENCE / LOSS OF APPARENT
NEUTRALITY: Symeonides' view that forum law, and other features of
modern methods, can disserve the higher values of the law. An
evaluation of Symeonides' analysis of a recent products case, Kelly v.
Ford Motor Co.
 Loss distributing (e.g., compensatory damages – business of the
place of injury or the plaintiff’s residence) vs Conduct regulating
(e.g., punitive damages – business of the place of wrongful
conduct)
 Jurisdiction-selecting rules wind up choosing places, not laws. The
danger in choosing territory instead of law lies in allocating
governing power to a state before we know what that state's law
is,63 and, in so doing, insulating the choice from both the living
case and the operation of reason.
 In charting his products liability conflicts,64 Symeonides reveals to
us that in more than half the cases studied, courts are choosing law
that favors defendants. In other words, the makers and distributors
of defective products, in more than half the cases, contrary to the
most basic policies underlying products liability law, are succeeding
 in shifting the social cost of the injuries they cause to the injured
and their dependents.
 Symeonides situates products liability outside the ordinary law of
tort. Ordinary tort law, he explains, is "conduct-regulating," while
products liability is "loss-distributing." Since products liability in our
time has generally not been based on fault, it seems unconvincing
to argue that it is fairer to place the risk of injury on innocent
defendants than on innocent plaintiffs.
Kelly v. Ford Motor Co.
 But what happens when a true conflict is about punitive damages in
a products case? That was the problem before the federal court in
the case.
 Kelly was a products case in which punitive damages were sought
for a wrongful death.
 Facts: The decedent was killed in her home state, Pennsylvania,
while driving a defective car she had bought there. The only out-of-
state feature of the case was that the car had been designed and
manufactured in Michigan.
 Under Pennsylvania law, the plaintiffs were entitled to punitive
damages. Under Michigan law, only compensatory damages were
available.
 Held: The federal diversity court, sitting in Pennsylvania, opined,
without consulting Pennsylvania policy on the question, that
punitive damages are excessive and destabilizing to the financial
stability of defendants. The court then held conclusory that
Pennsylvania would choose Michigan law on this issue, thus
denying punitive damages to the plaintiff.
 The court cited no authority for the proposition that in a products
case Pennsylvania would choose foreign law to avoid imposing
punitive damages on an egregiously negligent defendant who has
injured a Pennsylvanian on Pennsylvania roads. But Dean
Symeonides, in a startlingly revelatory passage, praises the Kelly
court for resisting the "all-too-common temptation" to apply forum
law to favor the local bereaved.
 To be sure, Michigan, as the place of manufacture, has an interest
in protecting its defendant car makers from non-compensatory
damages, in order to protect its automotive industry without denying
full compensatory damages to those injured by the industry's
products. The fact that Michigan is an interested state does not strip
Pennsylvania of its own policies and interests. As the place of injury
and the place where its citizen was killed, Pennsylvania had every
interest in punishment and deterrence, interests based on road
safety policies widely shared with other states.
 Was Symeonides' defense of Kelly a slip? Well, yes and no.
Symeonides believes that punitive damages are "conduct-
regulating" and thus are the proper business of the place of
conduct. On the other hand, Kelly was a products case, and for
Symeonides, products cases are cases of "loss distribution," not
"conduct regulation." Loss distribution, for Symeonides, is the
proper business of the place where the loss was suffered. All this
puts Symeonides in the mind-boggling position of attributing
conduct-regulating power in Kelly to the non conduct-regulating
state.
 (For reference - Loss distributing (e.g., compensatory damages –
business of the place of injury or the plaintiff’s residence) vs
Conduct regulating (e.g., punitive damages – business of the place
of wrongful conduct)
 Pennsylvania was under no obligation to subordinate its own law
and policies to another state's law and policies, certainly not to
another state's interests in protecting its local industry's egregious
wrongdoing, and certainly not where the result is an unsafe
condition on Pennsylvania's roads, and the death of a
Pennsylvanian.
 Dean Symeonides deplores "unilateralism," a vice he attributes to
modern methods in choice of law,68 and esteems
"multilateralism"69 instead. But would not "multilateralism" have
been better served in Kelly by vindication of these multistate
policies than by deference to Michigan's "selfish" interest in
7
protecting its industry's poor manufacturing practices and unsafe
designs?
 The key to the riddle of Symeonides' satisfaction with Kelly is that,
for him, modernist thinking about conflicts is somewhat to be
regretted. Modernist thinking has been a letting-go of what
Symeonides believes to be the highest ideal of judicial process:
neutrality. He mourns this loss of apparent neutrality as a "loss of
innocence."7
Part VII – Smart Rules and Conflicts Justice: Symeonides' reluctant
subordination of the ideal of substantive justice to the ideal of neutrality,
which he holds in highest esteem.
 Symeonides tentatively considers the possible advantages of rules
that point toward law that is substantively "better."
 Better law - plaintiff-favoring law tends to be "better," and defenses
that tend to be "substandard” meant lax regulatory standards and
special local defenses.
 Symeonides favorably contrasts Juenger's proposal of rules
pointing to quality law with the usual sorts of rules that point to
places, without regard to the quality.of the law at the chosen place.
 Syrneonides acknowledges that his own conflicts codes are in their
nature "jurisdiction-selecting," but explains that they have been
influenced by "better law" thinking. Yet he also confesses unease
about the "better law" project.
 Like many conservatives, Symeonides does not believe, or perhaps
does not want to believe, the implicit message in both Leflar's and
Juenger's work, that, generally, plaintiff-favoring law is "better."
 He identifies contrasting characteristic features of the old-style
"rules" and new-style "approaches." He thinks rules tend to be
"multilateral," appreciative of the concerns of other sovereigns,
while modern approaches, with their emphasis on the forum's
interests, are "unilateral." Rules offer "certainty," the new
approaches "flexibility." He contrasts the "territoriality" of the rules
with the "non territoriality" of modern approaches, and envisions a
new role for erritorialism in choice of law. He ascribes to forum
preference a near tribalism, and associates it with our "loss of
innocence.
 In particular, he acknowledges that "approaches," unlike rules, need
not fall into the trap of being "jurisdiction selecting" rather than "law-
selecting.
 Given the preponderance, then, as he sees it, of arguments more
favorable to "rules," Symeonides comes down predictably on the
side of "rules." He believes the pendulum has swung too far in the
direction of flexibility and away from certainty. He concludes that
employing both techniques is the best.
 He urges judges to overcome their " anti-rule syndrome . " As for
the kinds of rules he would propose, he favors capacious, complex
rules, that bring to bear a multitude of factors and influences -
contingent rules with fallback positions, sometimes allowing the
parties a degree of influence upon the choice.80
 Must "conflicts justice" be attainable only at the expense of
"material justice?" If so, in the face of these conflicting demands,
must we be content merely with "conflicts justice?" What is the right
path? Symeonides feels the tug of "material justice."
 But he confesses that we may have to be content with "conflicts
justice." We will be successful enough if we can achieve that. He
understands and regrets that even his "smart" rules are likely in a
given case to deny "material justice."
 In Symeonides' thinking, a "smart" rule would recover some part of
our lost "innocence" by balancing the claims of reason, shared
norms, and material justice against the claims of "conflicts justice,''
or, more particularly, neutrality. Whether or not one agrees with
him, Symeonides' effort to justify his work on politically neutral
grounds - his struggle to reclaim "innocence" - renders his work
more broadly attractive and sympathetic than any less balanced
view could be.
 In attempting to find a balance between justice and
evenhandedness, Symeonides' rules could risk displacement of
more genuine and weighty systemic goals. As to this, with the
 empiricist's fatalism, Dean Symeonides can answer arguments from Symeonides unless characterized by disinterestedness and
reason, shared norms, and justice itself, with an argument from evenhandedness
hard fact.  In light of these truths, very possibly neutrality as well as
 At the start of the interest-analysis revolution, interest analysts were fundamental fairness would best be served by unwavering
naturally captivated by their newly discovered power to identify the application of the law of the forum - except, of course, for false
most obviously foolish choices of law. These were cases in which conflicts in which the forum is the only uninterested state.91 Forum
the courts, not recognizing a false conflict, somehow managed to law is the only law that blind justice can choose and administer with
apply the law of the uninterested state rather than the interested formal neutrality precisely because it applies in all other cases,
one. without variation, without fear or favor, and under the direct
 If the place of injury is the forum state, with plaintiff favoring law, supervision of the legislature. This may well be the only sort of
and if the parties are joint domiciliaries of another state with fairness to defendants, when it comes to choosing law, that - since
defendant-favoring law, the case is a true conflic plaintiffs choose the forum - will not be unfair to plaintiffs.
 In such a case the forum, as place of injury, has legitimate
governmental interests in applying its own remedial law to benefit
the nonresident plaintiff, notwithstanding the laws of the joint
domicile, and therefore has constitutional power to do so. Of course
the joint domicile always has constitutional power too, and may
wield that power in its own courts to shield its defendant from its
own plaintiff's claim. B
 A more difficult problem is presented by a true conflict case in
which the forum is the joint domicile, and has defendant favoring
law.
 It is tempting to say that in a case with this configuration, a true
conflict, the forum should choose the remedial law of the place of
injury. In this way the joint domicile can vindicate its widely shared
general remedial policies. After all, if the plaintiff wins on the choice-
of-law issue she still must try to prove her case, and still can lose it.
 In true conflict cases, of course, the application of non-forum law
would not be arbitrary or irrational. But in unprovided-for cases
there can be no good reason for discriminatory departures from
forum law. Again, the forum can sometimes avoid such dilemmas
by frankly acknowledging that the other state's remedial law is
"better," and adopting the better rule as its own. In any event, since
plaintiffs generally do have the choice of forum, my hope is that
forum preference and plaintiff preference by and large will function
very similarly as a practical matter.86

Part VIII – AGAINST NEUTRALITY: Neutrality as a false value in the

context in which Symeonides struggles to maintain it.

 Cavers, like Symeonides, attempted to fashion choice rules free of

the bias of the forum – neutral.
 Presumably Justice must be blind to the relative celebrity, wealth,
political power, or influence of the parties. But it is hard to believe
that Justice must be blind to injustice. Justice cannot be that blind.
 Neutrality and evenhandedness better served by faithful application
of the law of the forum, when the forum has reason to apply it, than
by the intercession of abstract methodological interventions which,
however "smart;" can only deflect judges from that necessary task
and sworn duty.
 in the true conflict case, one in which two differing laws "apply,"
neither law will be arbitrary; and in the unprovided-for case, both
states' laws will. But judges should think long and hard before
turning away from their "preeminent province and duty to say what
[their own state's] law is."88 No amount of "conflicts justice" can
satisfy a resident that a court in her own state was right to deprive
her of a claim or defense it would have made available to her had
her opponent not resided elsewhere.
 Realists are unembarrassed by justice. The more straightforward a
court is about providing justice, the more commendable the court,
as far as we realists are concerned. But to a formalist there is
something vulgar, political - almost illicit - about justice. When
justice triumphs, formalists cannot help casting about for some
overlooked neutral principle which, if applied rigorously enough,
would have prevented it.
 For Dean Symeonides, as for David Cavers, justice is all very well;
but the jewel in the crown of j udicial process is neutrality.89
Neutrality ranks highest among all neutral principles. In torts as in
contracts, the protections of due process will seem insufficient to