Towards a Cosmopolitan Vision of Conflict of Laws: Redefining Governmental Interests in a Global Era
It has now been ten years since the idea of global online communication first entered the popular consciousness. And while the internet has undoubtedly opened up new worlds of interaction and cooperation across borders, this increased transnational activity has also at times inspired parochialism, at least among the legislatures and courts of nation-states around the globe. Thus, we have seen a slew of national laws and court decisions purporting to regulate a wide variety of online activities, from gambling to chat rooms to auction sites, and seeking to enforce territorially based rules regarding trademarks, contractual relations, privacy norms, “indecent” content, and crime, among others. These assertions of national authority have helped to reawaken scholarly interest in the classic triumvirate of topics historically grouped together under the rubric of conflicts of laws: jurisdiction, choice of law, and recognition of judgments.
In a previous article, I argued that territorially-based conceptions of legal jurisdiction may no longer be adequate in an era when ideas of bounded nation-state communities operating within fixed territorial borders are under challenge. I offered instead what I called a cosmopolitan pluralist conception of jurisdiction: cosmopolitan because it recognized the possibility that people can hold multiple, sometimes non-territorial, community affiliations; and pluralist because it acknowledged that forms of legal (or quasi-legal) jurisdiction can be asserted by communities that are not official state-sanctioned courts.
This essay turns the focus to choice of law and recognition of judgments. Analyzing three recent U.S. cases (two involving choice of law and one addressing recognition of judgments), I seek to apply some of the principles of cosmopolitanism to consider how courts should understand their institutional role in cases raising multinational concerns.
Taking seriously the observation that in conflicts scholarship there is nothing truly new under the sun, the cosmopolitan perspective I offer here does not purport to create a new theory of choice of law. Instead, it combines aspects of each of the three major choice-of-law regimes of the twentieth century—vested rights, governmental interests, and the substantive law method—to shape an overall attitude with which judges can approach cases involving conflicting transnational legal norms. This attitude starts from the idea that governments have an interest not only in helping in-state litigants win the particular litigation at issue, but a more important longer-term interest in being cooperative members of an international system and sharing in its reciprocal benefits and burdens. Similarly, with regard to judgment recognition, the cosmopolitan perspective asks judges to consider the independent value of enforcing a foreign judgment, even when that judgment is contrary to local policy choices. Moreover, the cosmopolitan approach focuses less on literal contacts with a territorially-based sovereign entity and more on the extent to which the various parties might be deemed to have affiliations with the possible communities seeking to impose their norms. Thus, while derived from various extant conflicts theories, the cosmopolitan perspective yields a distinctive approach, and one that I believe is better suited to a world of interconnection, interrelationship, and multiple community affiliations.
Communications Law | Computer Law | Conflict of Laws | Dispute Resolution and Arbitration | Intellectual Property Law | Jurisdiction | Public Law and Legal Theory
Date of this Version
Paul Schiff Berman, "Towards a Cosmopolitan Vision of Conflict of Laws: Redefining Governmental Interests in a Global Era" (July 5, 2005). bepress Legal Series. bepress Legal Series.Working Paper 664.