Tuesday, January 25, 2011

A CANADIAN LOOKS AT AMERICAN CONFLICT OF LAW THEORY AND PRACTICE, ESPECIALLY IN THE LIGHT OF THE AMERICAN LEGAL AND SOCIAL SYSTEMS (CORRECTIVE vs DISTRIBUTIVE JUSTICE)

In this article, William Tetley, a McGill University law professor, reviews the theory and
practice of the conflict of laws in the United States, from a Canadian perspective. He notes
the immense debt which the world owes to the “American conflicts revolution”, the creativity
and dynamism of which remain unequalled elsewhere, including Canada. He describes the
five basic approaches to private international law problems which Western society has taken
over the centuries and demonstrates how three of these approaches have informed American
conflicts theory since Joseph Story. He traces the development of various "equity-oriented"
conflict theories which have emerged from the “American conflicts revolution” in the
twentieth century, showing how these theories in turn both reflect and promote the
Aristotelian notion of corrective justice which underlies the American social and legal systems. He next demonstrates how society, substantive law and legal rules and institutions
in the United States are inspired, to a significant degree, by the quest for corrective justice,
while distributive justice, in the Aristotelian sense, is the dominant philosophical basis for
social and legal systems in most other industrialized countries, such as Canada. Noting how
the “litigation explosion” of recent decades in America mirrors and intensifies the quest for
corrective, as opposed to distributive, justice, the author analyzes a sampling of U.S. conflicts
decisions, in which modern U.S. conflict theories have been applied and in which the trend
towards “equity analysis” is increasingly pronounced. Prof. Tetley concludes by
recommending that Canadian jurists become more familiar with American conflict of law
theory and practice, even as Canada pursues its own more recent and quieter conflicts
revolution.
This is a good book for you to read it. Please link this: https://docs.google.com/leaf?id=0B3LzPsPRNUiwMmU1NTEzYmYtZjFhZS00NzQwLWE1OGMtMzU5YzdlNTk5NDlm&hl=en&authkey=CKvpn2M



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