Commentary on Conflict of Laws
Most of the commentary on conflict of laws can be found by selecting the “conflict of laws” category archive on the “Posts” page. Select this link to do just that.
A few original comments are collected below:
1. Regardless of which laws parties to a dispute may have previously adopted, such parties are free to choose the forum and law by which the dispute will be resolved. This freedom may encourage parties in a dispute to cooperate, to increase the economic efficiency of the resolution process. In a stateless society, the cost of the dispute resolution process is ultimately borne by the disputants, and may be shifted to one party or the other depending on the outcome of the process. Therefore when all disputants are relatively impoverished, they may wish to choose, for example, a pro bono or reduced-fee service such as offered by a legal services training school or legal drama reality entertainment program. On the other hand, if the defendant is well financed or insured and the claim for damages is large, a free or reduced-fee service may be unacceptable to at least one of the parties and so the selection of a dispute resolution service provider and the law to be applied may be determined by these choice of law rules.
This rule also states that the agreement to choose an alternative forum or law may be done at any time prior to adjudication. This affirms the right of two parties to choose a particular law and forum by contract in advance of the dispute arising, or afterwards. Choice of law and choice of forum clauses may be expected to be commonplace in voluntaryist contracts, just as such clauses are common in contracts based on statist laws. Also, consent to a choice of law may be implied by conduct. For example, a nightclub owner may post a prominent sign near all the entries, stating that all who enter the premises agree to resolve disputes arising on the premises under the “law of ‘X’ using service provider ‘Y'” and so it shall be, so long as entry to the premises is not induced by force or fraud.
2. See #1.
3. Comments on Rules of Reciprocity
(a) Jonny’s Conflict of Laws is grounded in the principle that a person should not be allowed to impose a penalty on another that the defendant has not agreed should be applied to any who similarly transgress against the defendant. Applying the defendant’s rule prevents legal predation by plaintiffs, but other safeguards are needed to prevent defendants from choosing laws permitting evil conduct with little or no penalties. For further commentary, see
- The Reciprocity Principle and The Impossibility Problem (vlda.org)
- The No-Hypocrisy Rule (vlda.org)
(b) The choice of law depends on when the defendant performed the first voluntary act out of which the claim arises. For example, in the case of murder, the time just before the murder is committed
(c) A converse approach is followed for affirmative defenses, such as self-defense or defense of others. The forum will apply the rule of the claimant that results in the least liability for the defendant. For example, assume Fanatic, who has adopted a law stating that any harm committed to prevent an imminent abortion is justified defense of others, hides in an abortion clinic and injures a doctor just as the doctor is about to perform an abortion. The doctor seeks a legal remedy for the attack, and had previously adopted a law that does not recognize the defense of a fetus in cases where an abortion is elected by the mother. Fanatic therefore cannot raise his intended defense under the rule of claimant’s law of least liability for affirmative defenses.