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Stanley E. Cox

Publication Date

3-1997

Document Type

Response

Abstract

I. AN INTRODUCTION TO THE INTERESTED FORUM WAY OF THINKING

When Brainerd Currie rearranged his essays for publication in book form, he felt it appropriate to lead off with his article about Walton v. Arabian American Oil Co. He considered his comments about that case a "logical point of departure" for his entire theory. It therefore also might be profitable for us, in this Symposium honoring him, to focus on the types of dilemmas presented by that case. In Walton, a nonresident plaintiff brought suit against a nonresident defendant on a cause of action arising out of conduct which occurred wholly outside the forum? Plaintiff did not provide the content of the foreign law where injury occurred, yet the forum's choice-of-law rules said that relief could only come from that foreign law. The New York court in Walton dismissed for failure to provide the content of the foreign law. Other courts faced with similar facts have heard such cases on the merits, presuming, somewhat dubiously, that the content of unpled foreign law is identical to the content of forum law. Professor Currie would allow forum law to be applied, under the equally questionable rationale that forum law should always be applied unless the parties offer some persuasive reason why another state's law should instead be applied. Each of these approaches starts from a fundamentally erroneous presupposition.

The most fundamental question about a case like Walton is whether New York should adjudicate the case at all. I contend New York should not hear such a case. The reason New York should not hear the case is because New York has no right to apply its law to the facts. The kneejerk reaction on the part of many readers at this point might be, "But Professor Cox, you are confusing adjudicative jurisdiction with legislative jurisdiction. The reason the New York court should hear the case is because it has personal jurisdiction over the defendant. The only question left is whose law should be applied."

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