Acknowledgments Introduction I. The Formal Structure of Choice of law Rules: Three Choice of Law Methodologies A. The Inherently Formal Structure of Classical and Interest Analysis Choice of Law Methodologies B. Challenging the Formal Structure of Choice of law Rules: Better Law Methodology 1. Better Law: Two Versions and Two Challenges 2. Better Law as a ...
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Acknowledgments Introduction I. The Formal Structure of Choice of law Rules: Three Choice of Law Methodologies A. The Inherently Formal Structure of Classical and Interest Analysis Choice of Law Methodologies B. Challenging the Formal Structure of Choice of law Rules: Better Law Methodology 1. Better Law: Two Versions and Two Challenges 2. Better Law as a Primary Rule: Robert Leflar & Friedrich Juenger 3. Targeting the Better Law Approach as a Primary Rule 4. Better Law as a Subsidiary Rule C. Situating CEF within the Formal Structure of Choice of Law Rules and the Better Law Story II. Choice Pillar I: Understanding Savigny's Theory of Choice of Law as Voluntary Submission A. Step 1: Three Basic Insights on the Nature of the Subject 1. Basic Insight (1): The Basic Unit of Inquiry Has to be Related to the Concept of "Legal Relations" 2. Basic Insight (2): Choice of Law Rules Must Be Linked to States' Territories 3. Basic Insight (3): The Choice of Law System Has to Be Universal B. Step 2: Theory Revealed - Organizing Principle of "Voluntary Submission" 1. The Relation to Roman Law and the Scholarship of Organizing Principles 2. The Operational Mechanism of the Principle C. Step III: Two Deviations from the "Voluntary Submission" Principle 1. Deviation I: Savigny's Exceptional Category of "Anomalous Laws" 2. Deviation II: The Frequent Affixation on Juridical Presumptions III. Choice Pillar II: Returning Savigny's Theory to its Origins A. The Kantian Origins of Savigny's Organizing Principle of "Voluntary Submission" 1. Kantian System of Right 2. Savigny's System of Rights B. CEF's Choice Pillar: the Principle of Juridical Relational Choice 1. The Requirement of Juridical Relational Choice 2. The Presence of a Foreign Element in the Factual Matrix of the Case C. The Operational Mechanics of the Choice Pillar: Party Autonomy and Constructive Inference 1. Party Autonomy Principle 2. The Doctrine of Constructive Inference IV. The Equality Pillar A. The Link to Better Law as a Subsidiary Rule B. The Limits to Kantian (and CEF's) Positivism: (1) Barbarism; (2) Innate Equality; and (3) State Equality 1. The Barbarism Exception 2. Innate Equality Exception 3. States' Equality Principle C. The Two Challenges of Better Law and CEF's Positivism 1. The Subjectivity and Legitimacy Challenges 2. CEF's Positivism D. Evil Laws as a Reflection of the Equality Pillar 1. The Notion of Evil Laws in Legal Theory 2. Mutual Benefits: What Can Evil Laws and the Equality Pillar Teach Each Other? E. Public Policy as Equality Pillar in Courts 1. Terminology 2. Loucks v. Standard Oil 3. Oppenheimer v. Cattermole 4. Kuwait Airways v. Iraqi Airways V. Further Development and Implications A. Tort Law 1. American Babcock v. Jackson and English Chaplin v. Boys 2. "Conduct Regulating" versus "Loss Distribution" Distinction 3. The Distinction in the New York Court of Appeal B. Lex Fori as a "Very Dangerous" Solution? 1. Conceptually Different Questions 2. Savigny's Objection to "Choice of Law Shopping" 3. When CEF Cannot Escape lex fori's Application: (1) the classification question; and (2) the lacuna left by the Application of the Equality Pillar C. Mandatory Rules 1. Mandatory Rules, their Presence in Contemporary Choice of Law Practice, and Scope of CEF's Argument 2. The Genesis of Man
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