
Contents
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I. Introduction I. Introduction
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II. The Classical View: “Conflicts Justice” II. The Classical View: “Conflicts Justice”
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III. The Second View: “Material Justice” III. The Second View: “Material Justice”
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IV. “Only in America”? IV. “Only in America”?
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V. Result-Selective Statutory Choice-of-Law Rules V. Result-Selective Statutory Choice-of-Law Rules
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A. Rules Favoring the Validity of Certain Juridical Acts (favor validitatis) A. Rules Favoring the Validity of Certain Juridical Acts (favor validitatis)
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1. Testaments (favor testamenti) 1. Testaments (favor testamenti)
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a. Formal Validity a. Formal Validity
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b. Substantive Validity b. Substantive Validity
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2. Other Juridical Acts (favor negotii) 2. Other Juridical Acts (favor negotii)
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a. Formal Validity a. Formal Validity
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b. Capacity b. Capacity
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B. Rules Favoring a Certain Status B. Rules Favoring a Certain Status
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1. Legitimacy (favor legitimationis) 1. Legitimacy (favor legitimationis)
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2. Filiation (favor infantis) 2. Filiation (favor infantis)
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3. Acknowledgment 3. Acknowledgment
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4. The Common Denominator 4. The Common Denominator
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5. Adoption 5. Adoption
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6. Marriage (favor matrimonii) 6. Marriage (favor matrimonii)
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7. Same-Sex Unions 7. Same-Sex Unions
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8. Divorce (favor divortii) 8. Divorce (favor divortii)
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C. Rules Favoring One Party: Choice of Law by, or for the Benefit of, One Party C. Rules Favoring One Party: Choice of Law by, or for the Benefit of, One Party
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1. Pre-dispute Choice by One Party 1. Pre-dispute Choice by One Party
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2. Post-dispute Choice by One Party 2. Post-dispute Choice by One Party
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a. Victim’s Choice in Cross-Border Torts and Products Liability a. Victim’s Choice in Cross-Border Torts and Products Liability
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b. Choice by Owner of Stolen Property b. Choice by Owner of Stolen Property
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c. Choice by Unwed Mother c. Choice by Unwed Mother
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3. Post-dispute Choice by the Court 3. Post-dispute Choice by the Court
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a. Court Choice for the Benefit of Tort Victims a. Court Choice for the Benefit of Tort Victims
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b. Court Choice for the Benefit of Maintenance Obligees b. Court Choice for the Benefit of Maintenance Obligees
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c. Court Choice for the Benefit of Children and Other Weak Parties c. Court Choice for the Benefit of Children and Other Weak Parties
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d. Protecting Consumers or Employees from the Consequences of an Adverse Choice-of-Law Clause d. Protecting Consumers or Employees from the Consequences of an Adverse Choice-of-Law Clause
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VI. Result-Selectivism in the Courts and in Uncodified Systems VI. Result-Selectivism in the Courts and in Uncodified Systems
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VII. Summary and Conclusions VII. Summary and Conclusions
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A. Summary A. Summary
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B. Not “Only in America” B. Not “Only in America”
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C. The Difference: Conflicts Justice Tempered by Material Justice C. The Difference: Conflicts Justice Tempered by Material Justice
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6 Codification and Result Selectivism
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Published:May 2014
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Abstract
This chapter discusses the positions of modern codifications on two conflicting views regarding the goal of the choice-of-law process. The firstview, is that the choice-of-law process should aim for the law of the state that has the “proper” connection(s) to the case, without being concerned with the quality of the solution that law provides (“conflicts justice”). The second view is that the choice-of-law process should aim directly for the law that will produce the “right” result (“material justice”). The “material justice” view, which was considered heretical until a couple of decades ago, has gained significant ground at the expense of the (conflicts justice( view, which remains the official goal of most codifications. The “material justice” view is evident in result-selective choice-of-rule rules designed to produce a particular substantive result, such as favoring tort victims, consumers, employees, or children, or favoring the validity of contracts, testaments, marriage, or filiation.. All but four of the codifications adopted during this period contain such result-selective rules.
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