Choice of Law; Conflicts of Law

February 15, 2006 9:18 AM

The 2005 Annual Survey on Choice of Law in American Courts. [pdf]The survey on Choice of Law looks at the recent controversial Supreme Court ruling dealing with conflict of laws. See Spector v. Norwegian Cruise Line, Ltd., 125 S.Ct. 2169 (2005). (Kennedy, J., writing the opinion of the Court) (Ginsburg, J., concurring) (Scalia, J., dissenting) (Thomas, J., concurring in part, dissenting in part). At issue in Spector was whether disability statutes applied to ships that depart from Texas and travel through domestic waters but fly under the flag of the Bahamas. Other 2005 Supreme Court conflict of laws cases included Small v. United States and Pasquantino v. United States.
posted by dios (12 comments total)

Isn't this why they made the WTO?
posted by daq at 9:53 AM on February 15, 2006

WTO has nothing to do with this. This involves the choice of law for litigants in U.S. state and federal courts. WTO deals only with trade issues. This is pretty obscure stuff, btw.
posted by Ironmouth at 10:12 AM on February 15, 2006

Actually, I think the article is pretty fascinating. The issue in Spector isn't that interesting to me, but the article has sections on the first suit filed by a prisoner in Abu Graib, various suits involving same-sex marriage and civil unions under DOMA, and CAFA, which pretty radically changes the class action landscape in US litigation. Thanks!
posted by monju_bosatsu at 10:16 AM on February 15, 2006

I disagree. The issue in Spector is the interesting point. The prisoner and civil union garbage is just politicized tripe that may be interesting to lay partisans, but doctrinally, it pales in comparison to the importance of the conflict issue in Spector. The case really calls into question the use of the "clear statement" doctrine, and somehow the Court compeltely avoided addressing Lauritzen. Why don't we just go back to the lex loci delicti rule?
posted by dios at 10:28 AM on February 15, 2006

Oh, c'mon. The "clear statement" issue in this case turns on whether Scalia's characterization of the "internal order" requirement is correct. I suggest that he exaggerates the importance of the language in McCullough, because the "internal order" language is an illustration of the rule and not the rule itself.
posted by monju_bosatsu at 10:33 AM on February 15, 2006

The internal order requirement is a trigger in these kinds of cases. When the internal order of an entity is compromised, Courts require a "clear statement" in the act of Congress to compromise that internal order. That's clear from McCulloch, Benz and Mellon. The question is only here whether internal order is compromised in this case. If it is so, then a clear statement is needed. Here internal order is compromised because in order to comply with Title III, a ship would have to make permanent alternations which expressly conflict with the International Convention for the Safety of Life as Sea. (SOLAS). As the ship in Spector is based out of Bermuda, it must comply with SOLAS. But Title III conflicts with SOLAS, and thus a clear statement is necessary. The Court should have acknowledged this and could have just decided this case under Lauritzen or Kirshner.
posted by dios at 10:47 AM on February 15, 2006

But the he internal affairs clear statement rule is an implied limitation rule, not a principle for resolving textual ambiguity. The cases, even the ones you cite, do not compel or permit the conclusion that if any one application of Title III might interfere with a foreign-flag ship’s internal affairs, Title III is inapplicable to foreign ships in every other instance.
posted by monju_bosatsu at 10:49 AM on February 15, 2006

Right, it's an implied limitation rule. If a Court is going to apply a particular law that is in conflict with another law, the Court cannot apply that law if it is in conflict with the internal affairs of an entity unless Congress expressly attempted to occuy that area with a clear statement. There is no clear statement from Congress that it demanded Title III be followed by all ships in domestic waters even given the fact it is conflict with SOLAS. It is silent on the topic, and therefore most be construed to not occupy that area. This general idea is throughout the law: ambiguitas contra stipulatorem est. Of course, the parts of Title III that do not conflict with SOLAS can be required without a conflict of laws analysis.
posted by dios at 10:56 AM on February 15, 2006

Kirshner does not apply. Kirshner was in Kentucky.
posted by monju_bosatsu at 11:01 AM on February 15, 2006

Choice of law and conflict of law may be obscure in this case but it's not a trivial matter in general. It's an issue that crops up in contract law, both because people make deals with people in other states and because people move from state to state.

Statutes of limitations on debts vary from state to state as well as the categories those debts fall into. Someone attempting to sue someone who runs out on a debt in State X to State Y could find themselves dealing with a conflict of law situation or at the least an argument about where the debtor was then the "cause of action" occurred.
posted by phearlez at 11:28 AM on February 15, 2006

I am shocked -- shocked! -- that the tag "Wildenhus'sCase" has never been used before.
posted by brain_drain at 11:32 AM on February 15, 2006

I love dios/monjou threads. Each one is an education.
posted by Ryvar at 3:33 PM on February 15, 2006