It seems fitting to include in this tribute to Professor Athanassios Yiannopoulos,one of America’s foremost comparativists,some observations conceming the conflict of laws,a subject with which he is quite at home. Not only did he teach it for several years. but he also earmed a doctoral degree at the University of Cologne under the supervision of the distinguished German conflicts scholar Gerhard Kegel. I first met Professor Yiannopoulos because of our membership on the Board of Editors of the American Journal of Comparative Law.During the fall semester of 1989, when I was teaching at the Tulane University Law School as the Eason-Weinmann visiting professor,I had the pleasure of seeing him on a daily basis and talking with him about the conflict of laws, as well as maritime law, legal education and other topics of mutual interest. Ever since, we have remained in touch, meeting on numerous occasions in the United States as well as abroad. I am delighted to have this opportunity to pay my respects to an outstanding jurist,a good friend,and a fellow comparativist. My contribution to the Festschrifi in his honor is based on the Eason-Weinmann lecture Professor Yiannopoulos invited me to present in 1995.

The conflict of laws comprises three distinct but interrelated subjects: jurisdiction, choice of law,and judgments recognition, This tripartite division reflects the questions facing counsel dealing with transactions that transcend the forum’s boundaries. Where, in the event of a dispute, should an action be brought; what law can the tribunal in which it is litigated be expected to apply; and will the tribunal’s decision be respected in other fora? In the United States, unlike in unitary legal systems,the conflict of laws serves a dual purpose: It is applicable to the resolution of problems arising from interstate transactions on the one hand and intemational transactions on the other. This dual purpose explains the subject’s name in American usage; elsewhere -not only in civil law jurisdictions but in countries where the common law reigns- the conflict of laws is usually referred to as «private intemational law.» The latter tenm, though it was coined by Justice Story.¹ makes sense only in nations with a single private law, as opposed to federal systems such as the United States,where conflicts rules must, because of needs, do double duty. Clearly, as far as intemational conflict problems are concemed. comparative law is important, if only because the rules that «conflict» are those of different legal systems² But even with respect to interstate problems, comparative law is a valuable tool: To look at conflicts rules and approaches that prevail abroad not only helps us gain perspective, but it can also fumish inspiration for domestic reforms. After all,one of the most important functions the comparative method serves is to offer an inventory of approaches to universal problems.³

Some time ago,I wrote an article that emphasized the need for a more global perspective with respect to the American law of jurisdiction, a field whose deplorable condition-so 1 argued-is largely due to the failure of American courts and scholars to avail themselves of the benefits the comparative method has to offer.⁴ Neglecting to look at such foreign models as the Brussels⁵ and Lugano Conventions,⁶ or even English practice,⁷ the United States Supreme Court has saddled us with a complex and confusing set of jurisdictional principles that offer little guidance to courts and counsel.⁸ The Court’s failure to establish clear and cogent precepts that help answer the simple question «can I sue here?» engenders much wasteful litigation and defeats the essential purpose of procedural rules, namely to promote the «just, speedy and inexpensive determination»⁹ of disputes. As I pointed out, no other legal system matches the complexity of our jurisdictional lore.¹⁰ Moreover,by constitutionalizing this field. the Court has effectively barred a major avenue for reform-treaties or conventions with foreign nations, which could substitute more orderly precepts for the current mess of state long-arm legislation and vacillating Supreme Court jurisprudence¹¹. As is apparent, parochialism does exact a high price.

In marked contrast to the pitiful condition of the American law of jurisdiction,our law of judgments recognition is fairly common-sensical and liberal, largely because the common law has traditionally respected foreign court decisions.¹² Originally,the civil law was equally liberal,¹³ but the rise of nation states focused attention on the notion of sovereignty,which does little to advance the interests of judgment creditors. A seventeenth century French enactment specifically denied effect to foreign judgments;¹⁴ other countries also increased barriers to recognition by establishing such requirements as reciprocity,¹⁵ rules protecting nationals,¹⁶ and the control of the initial forum’s choice-of-law determination.¹⁷ » The obstacles to judgments recognition prevailing abroad prompted our Supreme Court,in Hilton v. Guyor, to curtail the common law’s traditional liberality by adopting a reciprocity requirement.¹⁸ A number of state courts,however, refused to follow this precedent and by now most of the major states freely recognize judgments rendered in foreign countries.¹⁹ That enlightened trend owes something to the efforts of the late Dr. Nadelmann, a distinguished comparativist who served as the Reporter²⁰ for the Uniform Foreign Money Judgments Recognition Act.²¹ This statute, one of the most important American conflict of laws enactments, has been adopted in a considerable number of states.²² Dr. Nadelmann also promoted the United States’ accession to the Rome International Institute for the Unification of Private Law (UNIDROIT) and the Hague Conference on Private Intemational Law²³ where he was instrumental in drafting a judgments recognition convention.²⁴ Regrettably,this effort failed for a number of reasons,²⁵ and similar current endeavors may also come to naught because of the dismal state of American jurisdictional law.²⁶ 

The procedural part of the conflict of laws, jurisdiction and judgments recognition,is of great practical importance.My contribution to the Festschrift honoring Professor Yiannopoulos,however,will focus on choice of law.This field,though perhaps of lesser practical importance,is,in the eyes of many, much more befuddling than judgments recognition or even our strange jurisdictional lore.Not without reason,Dean Prosser characterized it as «a dismal swamp, filled with quaking quagmires» and complained about the «learned but eccentric [conflicts] professors who theorize about mysterious matters.»²⁷ Certainly,few fields can boast of an equally «strange and incomprehensible jargon»²⁸ as that which bedevils choice of law.No ordinary mortal,few lawyers and judges, and seemingly not even all conflicts teachers, truly understand such concepts as renvoi, characterization, dépeçage, and «rules of immediate application.»Quite apart from its cumbersome nomenclature, the field is mared by never-ending debates about the purposes it is to serve and the proper method to accomplish them. Accordingly, it is hardly surprising that confusion reigns supreme.Matters were bad enough when Prosser referred to our discipline as a «dismal swamp;» they have not improved since Joseph Beale’s spurious vested rights theory²⁹ gave way to Brainerd Curmie’s equally spurious «govemmental interests»³⁰ approach.Something called the «conflicts revolution» has swept the country and in its wake a peculiarly parochial attitude has spread.³¹ This parochialism is deplorable, because the field is desperately in need of the enlightenment comparison can offer.

American conflicts law used to be a comparative endeavor. After losing Saul v. His Creditors,³² a landmark conflicts case,Samuel Livermore used the European literature he had consulted to persuade the Louisiana Supreme Court (to no avail) as material for the first American treatise on the subject.³³ Justice Story, another comparativist,also looked to civilian sources to write his splendid Commentaries on the Conflict of Laws. a treatise that set new standards for the scholarly treatment of the subject.³⁴ Although story did not embrace the statutist approach Livermore had advocated, he did pay homage to his predecessor.³⁵ If it is true that the comparative method helped launch these two early treatises, might it not also be of assistance in the future? The turmoil that currently besets choice of law is due, at least in part, to the disregard of comparison and guidance from whatever source ought to be welcome.Indeed,comparative research has already revealed an important fact that might be pertinent to a much-needed reorientation of this field: In spite of its long history and the immense outpouring of scholarly writing and judicial opinions it has inspired, courts and legal writers have been able to come up with only a limited number of fundamental approaches to the multistate problems this area of the law is designed to resolve.³⁶ This Article will briefly sketch the substance of these approaches.

Assume that a New York manufacturer sells widgets to a French buyer. What law should govem their agreement? One approach to this question is not to pose it at all. The court in which the transaction is litigated-be it in New York, France or some other state or nation-simply applies its own law. In support of this solution, it can be argued that judges are, after all, most familiar with the lex fori. Its application is therefore easier, less time-consuming, and (there being no need for a foreign law expert) cheaper than resort to the rules of decision of some alien legal system. By the same token, an erroneous application of the pertinent law will be less likely. That was indeed the way English common-law courts, after initially refusing even to hear cases involving foreign facts because the juries had to be drawn from the vicinage, used to deal with the problem some centuries ago. ³⁷ Rather than simply dismissing such cases, the common-law courts resorted to the fiction that the foreign facts transpired in England, so that they could be tried before a jury and adjudicated by applying English law. ³⁸ Of course, the English judiciary has long abandoned this rather extreme forum- centered approach. In fact, Parliament, following continental European practice, has recently gone as far as to enact statutory choice-of-law rules. ³⁹ Yet, strange as it may seem, the rather archaic position that forum law should reign supreme has found favor with some American courts⁴⁰ and contemporary American conflict of laws scholars. ⁴¹

A different way to deal with the matter is the one followed by the first Restatement of Conflicts,⁴² which enshrined the so-called «multilateral approach, » a methodology propagated by Friedrich Carl von Savigny.⁴³ To resolve contract choice-of-law issues, for instance, multilateralists ask «is this a French or a New York contract?» To answer this question, they interpose «jurisdiction-selecting rules»⁴⁴ between the transaction and the legal systems whose laws potentially apply-rules that allocate the transaction to one legal system or the other by means of so-called «connecting factors. «⁴⁵ Thus, the first conflicts restatement provided that the validity and effect of a contract are determined by the «law of the place of contracting. «⁴⁶ The lex loci contractus was to govern practically all choice-of-law issues, save for certain ones relating to performance.⁴⁷ This rather simplistic rule, which can be traced back to the Middle Ages,⁴⁸ was believed to resolve, simply and expediently, any interstate or international contract problems that might conceivably arise. The purpose of such choice-of-law rules is, as Savigny⁴⁹ pointed out, to provide for uniform results irrespective of where a case may be litigated.⁵⁰ In other words, by striving for what civilians call «decisional harmony, «⁵¹ this approach attempts to eliminate the evil of forum shopping.

While multilateralists attempt to allocate transactions to a particular legal system, unilateralists approach choice-of-law problems in a rather different manner. Instead of asking «is this a New York or a French contract?, » they look at the specific legal issues that have arisen and ask what rules of decision should govern each of them. For instance, if it is doubtful whether lack of consideration vitiates the parties’ agreement, unilateralists will ponder the possible reach of the pertinent local and foreign rules-whether they claim application to a contract that has contacts with the forum as well as with some other state. Thus, rather than locate a given legal transactions in one legal system or another, unilateralists inquire into the spatial purport of the potentially applicable domestic and foreign rules of decision, such as statutory provisions or case law rules on consideration, Again, the unilateralist methodology is not exactly new. Nine hundred years ago, scholars at Upper Italian universities attempted to divine the reach of rules of decision from their inherent characteristics.⁵² Thus, they speculated about whether a particular local rule on, for example, the capacity to contract, applies to a contract made by a nonresident in the forum or by a resident made abroad.⁵³ Once considered outdated and worthless in light of Story’s and Savigny’s contributions to the conflict of laws,⁵⁴ this approach was resuscitated in the United States by Brainerd Currie. who maintained that the policy behind each rule of decision and the interest of the state whose rule of decision is at issue in effectuating that policy, should determine the rule’s interstate or intermational scope.⁵⁵

A fourth way of dealing with the problem focuses on commonalities rather than on differences. Instead of determining whether a contract is French or New York in nature or whether the New York rule on consideration applies, the substantive law approach asks whether there is an interstate or intemational rule on point. This was the way in which Justice Joseph Story, the great conflicts scholar,⁵⁶ dealt with an interstate negotiable instruments problem in Swift v. Tyson⁵⁷ Justice Story’s opinion in Swifi eliminated the possible conflict between the asserted New York requirement of consideration and whatever rule may have prevailed in Maine, wherethe bill of exchange at bar was dated, by invoking a federal common-law rule derived from a supranational law merchant.⁵⁸ As far as sales contracts are concemed, Justice Story’s approach has, in a way, become positive law:Article 2 of the Uniform Commercial Code largely eliminates conflicts within the United States. Intemationally, the Vienna Convention on the Law Applicable to International Sales of Goods,⁵⁹ which the United States and most developed countries have ratified, lays down substantive rules governing the sale of merchandise across national boundaries, Thus, both within the United States and worldwide there now exists, once again, a uniform commercial law of sales.

Of course, American sales law is not entirely uniform because the versions of Article 2 enacted by ditferent states vary and the courts of each state may construe even identical provisions differently.⁶⁰ As far as intemational sales are concerned, the modern lex mercatoria had to take the form of an international compact to become the supreme law of the land. ⁶¹ This is not what Justice Story had in mind when, in Swift v. Tyson, he talked about «the law. . . of the commercial world, «⁶² which is to say a supranational set of rules that is not the law of any particular state and does not owe its existence to treaties among nations. Rules of intermational commercial law do not necessarily require the exercise of sovereign prerogatives. The law merchant to which the great judge and conflicts scholar referred, the roots of which reach back to the Roman ius gentium. emerged from commercial custom during the Middle Ages, ⁶³ when it helped Europe to escape from the Dark Ages that followed the fall of the Roman Empire.

This revival of Westem culture preceded the existence of territorial states and their claim to a monopoly in lawmaking. Once the world was divided into nation states, legal positivists, such as Justice Holmes, denied that such a supranational law could still exist. ⁶⁴ But, while the United States Supreme Court has adopted Holmes’view, ⁶⁵ a respectable array of current scholarly opinion maintains that modem realities, in particular the prevalence of arbitration as the means of resolving commercial disputes, have spawned a new law merchant. ⁶⁶ Accordingly, the substantive law approach to multistate and multinational problems presents, even now, a possible altemative to the traditional multilateral and unilateral methodologies.

These, then, are the four fundamental approaches to choice of law:(1) applying the lex fori. (2) multilateralism, (3) unilateralism, and (4) the substantive law approach. I say  «fundamental» because there are quite a few additional approaches, which will not appeal to purists, but seem to delight some legal scholars and courts. Taking a little bit of this, a little bit of that, and a tad of the other, scholars and judges have devised composites that they find more appealing than any plain vanilla choice-of-law methodology. There is, of course, nothing wrong with borrowing the best elements of various theories and combining them in some coherent fashion to create a new approach. The users and promoters of the various «mish-mash» or «kitchen sink» methodologies,⁶⁷ however, tend to overlook that the four basic approaches reflect rather different ideologies and incompatible purposes, and therefore do not mix well. At any rate, for analytical purposes at least, it seems appropriate to keep the varying methodologies apart, even if it is true that no particular approach has ever prevailed, to the exclusion of all others, in the history of our discipline. ⁶⁸

Although the four methods outlined above have coexisted for centuries, their relative importance has varied over time. Since the Middle Ages, when continental European law teachers first began to wrestle with conflicts problems, the prestige of each method at any particular period has largely depended on the academic support it enjoyed. Early on, the statutists-who followed a unilateralist approach that classified rules of decision as either personal or territorial-dominated the field.⁶⁹ Unilateralism, however, had to compete with the substantive law approach. Because of the Roman law revival in continental Europe, there reigned an overarching common law, a ius commune, which interacted with local law such as the statuta of the upper Italian city-states.⁷⁰ Also, special commercial courts dealt with disputes among merchants, and these courts applied the lex mercatoria, a law of universal purport.⁷¹ Yet, although they were teachers of Roman law and presumably familiar with the law merchant, the statutists’ early conflicts literature was devoted primarily to the divination of the personal or territorial reach of rules of decision. Taking the existence of substantive norms governing multistate transactions for granted in dealing with the multistate transactions of their days, they emphasized the unilateral, rather than the multilateral or the substantive choice-of-law approaches,⁷² in dealing with the conflicts posed by disparate local laws.

Subsequently, statutism became a discredited doctrine. As noted earlier, Samuel Livermore tried to import the statutist methodology to our shores, but Judge Porter of the Louisiana Supreme Court rebuffed Livermore’s effort and, in Saul v. His Creditors. opted for the multilateral methodology.⁷³ «Justice Story(who had read the book that Livermore, atter having lost the Saul case, published on the subject)⁷⁴ also rejected the statutist approach⁷⁵ and promoted the development of multilateral choice-of-law rules.⁷⁶ The eminent Roman law scholar Friedrich Carl von Savigny not only followed Story’s footsteps but, more importantly, fumished a conceptual foundation for multilateralism.⁷⁷ » Given the reputation of Story’s Commentaries and Savigny’s treatise, it comes as no surprise that the switch they brought about from unilateralism to the multilateralist approach has been called a «Copemican revolution»⁷⁸ Attributed to medieval minds and discredited by such extremes as Bartolus’s ludicrous attempt to deduce the spatial reach of rules of decision from their wording,⁷⁹ statutism, and thus the unilateralist approach, may have looked moribund, if not dead. Instead of continuing to classify statutes as personal or real, scholars began to explore the ramifications of the multilateralist approach, especially its self-inflicted problems, such as characterization, public policy. and renvoi.⁸⁰ But even during the heyday of what has been called the «classical» approach,⁸¹ unilateralism did not entirely vanish. It manifested itself, in particular, when courts had to deal with the application of regulatory laws, such as antitrust legislation, to international transactions.⁸² Moreover, swimming against the tide, even on the European Continent there were some academics who continued to find merit in the unilateralist creed.⁸³

Ultimately, of course, it tumed out that the report of unilateralisı’s demise was greatly exaggerated. In a landmark article,a Belgian author described how that old approach managed to survive lean times⁸⁴ and a Swiss jurist noted that «statutist theories… are experiencing a surprising renaissance.»⁸⁵ Unlike in Europe and Latin America-where Savigny is still held in awe⁸⁶ -in the United States unilateralism made a truly spectacular comeback,becoming the dominant school of thought.⁸⁷ Brainerd Currie, who, echoing other eminent authors,⁸⁸ debunked the multilateralist first conflicts Restatement and its Reporter Joseph Beale (as well as the entire multilateralist doctrine)⁸⁹ and took the position that «[w]e would be better off without choice-of-law rules,»⁹⁰ by which he meant those of the multilateralist kind. Hypothesizing state «terests» in applying Jomestic rules of decision to interstate and international transactions,⁹¹ he persuaded an entire generation of conflicts scholars that the only appropriate way to deal with choice-of-law problems is to focus on the spatial reach of substantive rules.

Currie’s articles,published in the late 1950s and early 1960s, had so powerful an impact on American conflict scholarship that the unilateralist revival was thought to be «Copernican revolution»⁹² To this day, Currie’s «interest analysis» claims center stage, and even those who reject it are forced to pay tribute to it by having to take issue with his postulates. A majority of American conflicts scholars probably still accepts his teachings, at least up to a point. As has been said:

Currie’s governmental interest analysis proved to be a water-shed in American conflicts law..[V]irtually every American conflicts scholar after 1958 took Currie’s analysis as a starting point either for agreement or disagreement. …No commentator on current develomen in American conflicts law even today can ignore Currie, for his scholars continue to debate his views even as they seek new ways yo approach the perennial problems of the subjet.⁹³

While the views of current American interest analysts mat differ from Currie´sand often vary from one author to the next,⁹⁴ their difference are, in large measure, limited to the question og how to deal whit the slef-inflicted problems of unilateralism – the so-called «true conflicts», «unprovided-for cases» an déécage.⁹⁵ those who still cling to multilateralism in some form or other seem to do so less out of fondess for the traditional approach than out of the belief either that the Constitution comples rules that allocate «legislative juridistion» territorially⁹⁶ or that a palliative is needed to alleviate unilateralism´s inherent forum bias.⁹⁷

However interesting the American conflicts revolution may be as a jurisprudential phenomenon, one might ask, what does it have to do with comparative law? The answer is: very little. In fact, the truly remarkable thing about the sea change in American conflicts law is the lack of reflection on the part of most revolutionaries. Authors such as David Cavers, Brainerd Currie, Willis Reese and others had little to say about the nature, background, and provenance of the methodologies they espoused. Although they were obviously aware of the marked difference between their approaches and the one underlying Beale’s First Restatement, they seemed to lack words to describe that difference, indeed, they may never have heard the terms unilateralism and «multilateralism». Only Albert Ehrenzweig, a comparativist, found it necessary to explain and define these concepts.⁹⁸ But neither Currie nor his early followers, should they have read Ehrenzweig’s work, pondered their meaning and import, or even paid attention to them. Similar to Monsieur Jourdain in Molière’s play, who did not know that he had been speaking prose for forty years, they seemed to be blissfully unaware of the fact that the methodologies they embraced had names and historical antecedents. Might they have simply believed that their approaches accorded with the natural order of things?

That certainly seems to have been Currie’s view. Rejecting what he believed to be inferior European imports, he called for a «retum to methods that are indigenous to our legal system and that our judges and lawyers are fully competent to utilize. »⁹⁹ Despite his parochial bent of mind, he sensed nevertheless that what he said could not be entirely novel;indeed he claimed to have diligently sought for evidence of its antiquity,¹⁰⁰ But because he ignored what comparativists might have to offer by way of insights into conflicts history and methodology (when Currie cited Ehrenzweig’s writings or Rabel’s treatise,¹⁰¹  he usually did so only to take issue with these comparativists),¹⁰² Currie’s attempt to trace the origin of his ideas prompted him to misinterpret possibly pertinent authority. He cited a passage from Lord Kames’ Principles of Equity for the proposition that the reach of legal rules should be ascertained by means of some form of govemmental interest analysis.¹⁰³ By chance, Currie had looked in the right place: In this earliest English-language contribution to our field, Lord Kames-a Scot and, therefore, a civilian-did discuss conflict-of-laws issues in statutist, hence unilateralist, terms.¹⁰⁴ The passage from the first edition of Kames’Principles that Currie quotes, however, has nothing to do with choice-of-law methodology.¹⁰⁵ Lead astray by his lack of comparative acumen, Currie misread the word prescription in that passage to connote a rule of decision, whereas Kames used this term in its civil-law meaning to denote a statute of limitations. As is apparent, disdain for comparative research has the propensity to lead scholars astray.

«Those who cannot remember the past are condemned to repeat it. » ¹⁰⁶ Their disregard of the comparative method prompted revolutionaries to reinvent the wheel. Long before Currie came across true conflicts¹⁰⁷ and «unprovided-for cases, «¹⁰⁸ earlier writers had discovered the conundrums of cumuls and lacunes the unilateralist methodology inevitably produces.¹⁰⁹ Obviously, any approach that is geared to ascertaining the reach of domestic rules of decision is bound to create situations in which more states than one can claim to attach legal consequences to a particular transaction or in which no state can be said to make such a claim, Similarly, the basic idea in Baxter’s much-cited article on «comparative impairment»¹¹⁰ merely restates Pillet’s law of the least sacrifice.¹¹¹ Cavers. having heard about Wachter from his comparativist colleague Nadelmann, who had translated passages from the nineteenth century author’s work,¹¹² did notice that Wächter’s views have a singularly contemporary cast,¹¹³ although he failed to grasp what precisely the German unilateralist had in common with the American revolutionaries.¹¹⁴ 

Even the revolutionaries’choice of topics demonstrates the perils of parochialism. Both Cavers and Currie had selected, for their supposedly seminal contributions to modern conflicts theory, a curiously dated problem, namely the choice-of-law ramifications of a married woman’s incapacity to contract.¹¹⁵ One wonders what prompted them to revisit the old Massachusetts case Milliken v. Pratt,¹¹⁶ considering that they wrote at a time when married women’s disabilities were no longer an issue. How can one explain that scholars bent on fashioning a brave new world of conflicts law would exhume such legal fossils to wrestle with a problem that, as Currie realized, was «small, trite, and not very practical?¹¹⁷ Lack of comparative acumen seems to have been the reason. Would they have chosen to ponder the conflicts implications of married women’s incapacities, had they known that the seventeenth-century author Benedict Carpzov had already dealt with it in unilateralist terms¹¹⁸ and that Wächter, writing in the nineteenth century, had advanced arguments quite similar to those presented by the modem revolutionaries to justify application of the lex fori?¹¹⁹ Having little use for comparative and historical research, Cavers and Currie even neglected to consult the reference to Story’s treatise in the Milliken case,¹²⁰ which would have led them to discussions of married women’s disabilities by foreign authors whom Story cited and analyzed. A glance at legal history and comparative law might well have persuaded them to pick a more suitable subject for developing their «novel» approaches.

The American unilateralists’ lack of interest in comparative research is not altogether surprising. For obvious reasons, their approaches-and in this respect Currie and Wächter are very much alike-are infused with a powerful forum bias.¹²¹ Those who try to gauge how far rules of decision reach tend to focus, first and foremost, on the reach of forum law, and that is also where their inquiry usually ends. Once the lex fori is believed to reign supreme, there is no longer any need to deal with foreign law;parochialism becomes the name of the game. Under Currie’s spell, American conflicts law lost the cosmopolitan quality with which Livermore’s and Story’s comparative research had endowed¹²² it and which even the often maligned Beale respected.¹²³ Of the four principal pre-revolutionary scholars who initially attacked Beale’s simplistic approach,¹²⁴ Iwo had still been comparativists.¹²⁵ But once Currie’s ideology commanded the center stage of the revolution, much of American conflicts literature began to take on a distinctive ethnocentric hue. To be sure, two distinguished comparativists, Albert Ehrenzweig and Arthur von Mehren, were among the revolutionaries. As important as their contributions are, however, they were marginalized by the tendency of American conflicts authors to focus on Currie’s teachings, be it to proclaim their allegiance or to take issue with him.

The substantive issues discussed in our conflicts literature also have a pronounced domestic character because American cours used the revolutionary approaches primarily to deal with interstate phenomena such as automobile accidents¹²⁶ and airplane crashes¹²⁷ Even events occurring beyond the American frontiers often posed issues resembling those presented in purely domestic cases.¹²⁸ Combined with the forum bias of interest analysis, this resemblance may explain why courts failed to question whether the policies behind alien rules of decision were in fact identical to those underlying similar domestic rules. For example, a Califomia Supreme Court decision dealing with a cap on tort liability found in the Zacatecas Civil Code relied on Cavers’ discussion of American wrongful death statutes¹²⁹ as authority to divine the policy that the Zacatecan legislature might have had in mind.¹³⁰ Neither Zacatecas nor any other Mexican state, however, had ever faced the problem posed by Baker v. Bolton,¹³¹ in reaction to which common-law jurisdictions adopted their peculiar wrongful death acts, and Cavers had expressly disavowed any expertise in comparative law.¹³²   Similarly, the New York Court of Appeals relied on an article by Reese, who had never claimed to be a Canadian law expert. to ascertain Ontario’s policy behind that Province’s guest statute.¹³³ Not only did American courts cite spurious authority for asserted foreign policies, but at times they altogether avoided discussing policies other than domestic ones, as demonstrated by a spectacular Califomia federal case dealing with an air crash in France that killed people from five continents.¹³⁴

Thus, in various and sundry ways the revolutionary case law failed to raise foreign-law problems in a manner that would necessitate recourse to the comparative method. Instead, it dealt primarily with dated domestic institutions that are of marginal interest to comparativists, such as guest statutes, intra-family immunity and caps on wrongful death recovery¹³⁵ At the same time, conflicts commentators emphasized interstate rather than intemational conflicts, Moreover, as noted earlier, Currie had called for the retum to indigenous methodologies and found it unnecessary to look beyond domestic law for enlightenment.¹³⁶ In this fashion, a number of factors combined to give the conflict of laws a strangely ethnocentric quality. Twenty-five years ago, an eminent German conflicts scholar already conciuded that American authors are stewing in their own juice.¹³⁷ This is a serious matter. In consequence of our self-imposed insularity, we are in danger of losing touch with the rest of the world. Nor does such insular conflicts scholarship particularly please the judiciary. The theoretical refinements American scholars developed in splendid isolation are not especially helpful in deciding interstate and international cases; in fact, it seems that the judges do not even take them seriously.¹³⁸

The fact that our discipline has been preoccupied with domestic phenomena ought to be of some concem to law teachers now that globalization has become the cliché of choice and acronyms such as EU, NAFTA, and WTO are bantered about daily by the media, Is it not strange to see scholars who work in a field that is dedicated to phenomena that transcend local boundaries glorify the lex fori? Attomeys who advise clients on international transactions must wonder how an area of law that ought to facilitate such transactions could produce homespun forum-centered approaches. Scholars who are preoccupied with sovereign prerogatives and focus on domestic courts and local laws fail to take into account the ease with which players on the international stage can avoid national courts and dysfunctional domestic precepts by recourse to arbitration. This preferred method of dispute resolution allws private parties to frustrate the governmental interests that supposedly control multistate transactions. In surroundings that display neither national flags nor other emblems, these interests are obviously of lesser concern than they would be in a courthouse. Because arbitrators are not beholden to the laws of any particular nation, arbitration effectively denationalizes intemational commercial disputes, eradicating the fixed point in the interest analysts universe; because there is no forum, forum interests become irrelevant.

And what law do such nonnational tribunals apply? Above all, they apply that law which the parties tell them to apply. Traditionalists, be they of the unilateral or the multilateral ilk, have never felt entirely comfortable with the power of individuals and enterprises to stipulate the law governing their contracts, because such a pragmatic solution is at odds with either of the two traditional approaches.¹³⁹ Obviously. unilateralists who emphasize the notion of sovereignty will deny that there is any room in conflicts law for the interests of individuals or enterprises.¹⁴⁰ But multilateralists as well have questioned the power of private parties to designate the applicable law,¹⁴¹ despite the fact that private parties could always manipulate even such seemingly hard-and-fast connecting factors as the place of contracting or performance. But, whatever scruples scholars may have, arbitrators-who, after all, owe their jobs to the parties who appointed them-will hardly question the wisdom of these parties’ choice. Even if arbitral tribunals, like courts, would have to respect choice-of-law rules,¹⁴² the fundamental principle of party autonomy is by now firmly rooted in domestic legislation and international conventions.¹⁴³

As far as intermationalizing commercial transactions is concerned, much has been written about the new law merchant.¹⁴⁴ This phenomenon has been prompted by the emergence of arbitration as the preferred method of commercial dispute resolution and the realization of inherent deficiencies in the conflict-of-laws approach to international transactions. Recourse by arbitrators to a nonnational lex mercatoria seems entirely appropriate if the parties fail to stipulate the law they wish to govern. Absent a foruim, the selection of the applicable law should not hinge on any positive choice-of-law rules. But even if it did, modem contract choice-of-law rules, which rely on such nebulous connecting factors as the «closest connection»¹⁴⁵ or the «most significant relationship»,¹⁴⁶ allow arbitrators to determine the law they wish to govem first and then to find reasons why that particular law has the closest connection with the parties’ agreement. Given such freedom, why should arbitrators be precluded from selecting a nonnational law, such as the UNIDROIT Principles of Intemational Commercial Contracts?¹⁴⁷ In fact, there are reported cases to show that some arbitral tribunals preferred, even before the Principles-which are the result of one of the most important comparative endeavors ever undertaken-were published, an amorphous lex mercatoria to the positive law of some state or nation,¹⁴⁸ Nor is arbitration the only driving force behind the quest for a supranational law of commerce:Standard form contracts and commercial customs contribute t the formation of a new law merchant¹⁴⁹ akin to the old one of which Justice Story spoke in Swift v. Tyson.¹⁵⁰

The most striking feature of the American conflicts revolution has been the shift from the multilateralist to the unilateralist methodology, which not only continues to occupy scholars in the United States, but has also had reverberations abroad. Even in countries where multilateralism is firmly established, authors are aware of such specific manifestations of the unilateralist methodology as rules of immediate application(lois de police) and the clash of regulatory laws.¹⁵¹ In fact, as mentioned earlier, perceptive civilian commentators have noted the remarkable resurgence of a method that had long been considered outdated.¹⁵² But the upheaval in the American conflict of laws did not merely revive the unilateralist methodology. Although most conflicts scholars in this country are still grappling with the ramifications of Currie’s methodology, a few would resuscitate multilateralism¹⁵³ and some favor an unabashed leggeforismo.¹⁵⁴ At the same time, the substantive law approach has reappeared, both on the international scene in the form of the much debated lex mercatoria¹⁵⁵ and in domestic discussion as the better-law methodology¹⁵⁶ That approach merits further exploration precisely because it is at loggerheads with fundamental tenets held dear by traditionalists. It contradicts the assumption of positivists, be they of the unilateralist or the multilateralist creed, that states, and only states, can create law.¹⁵⁷