More “Private” International Law Blogging

A few weeks ago, a regular reader asked why we don’t do more with private international law/conflicts of law matters here at Opinio Juris.  I’m not sure I had a good answer.  Certainly, those who follow these topics already have some resources to turn to, most notably the European-based Conflicts of Law.Net blog.  But these are important topics, and those who follow international law generally should certainly keep an eye on them as well.  To that end, let me flag two recent publications.

First, for a new take on conflicts of law, check out Thomas Main‘s forthcoming article in the Washington University Law Review, rethinking the substance/procedure distinction.  Here’s the abstract:

The substance-procedure dichotomy is a popular target of scholarly criticism because procedural law is inherently substantive. This article argues that substantive law is also inherently procedural. I suggest that the construction of substantive law entails assumptions about the procedures that will apply when that substantive law is ultimately enforced. Those procedures are embedded in the substantive law and, if not applied, will lead to over- or under-enforcement of the substantive mandate. Yet the substance-procedure dichotomy encourages us to treat procedural systems as essentially fungible—leading to a problem of mismatches between substantive law and unanticipated procedures. I locate this argument about the procedural foundation of substantive law within a broader discussion of the origin and status of the substance-procedure dichotomy.

And for those who might be interested to see what conflicts has to say about the relationship between international and domestic law, check out this short piece by Karen Knop, Ralf Michaels, and Annelise Riles: 

The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system’s jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as “theory through technique.”

In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between laws, without necessarily being committed to any one method or policy. Surprisingly, we demonstrate that it is precisely the seemingly negative features of conflicts – the field’s high degree of technicality disparaged as a “conflict-of-laws machine” and the multitude of theories famously deemed a “dismal swamp” – that figure among the advantages of a conflict-of-laws approach to international law in domestic courts.

A conflict-of-laws approach offers ways to respect the nature of international law as law, without simplifying that nature by characterizing it exactly as domestic law. In addition, seeing the parallel with conflict of laws brings a wealth of experience that can enrich and refine the debate on international law in domestic courts. Finally, the parallel with conflicts changes international law in domestic courts from a specific problem addressed by international and constitutional lawyers into a general problem of relativism – which, we argue, conflict of laws is uniquely positioned to address.