Academic journal article Texas International Law Journal

Bridging the Swamp: Currie's Interest Analysis as a Principled Solution to the Conflict of Laws Problem in Bakalar and Other Stolen Art Cases

Academic journal article Texas International Law Journal

Bridging the Swamp: Currie's Interest Analysis as a Principled Solution to the Conflict of Laws Problem in Bakalar and Other Stolen Art Cases

Article excerpt

SUMMARY

I. INTRODUCING BAKALAR...................................................................................170

II. THE CONFLICT OF LAWS PROBLEM..................................................................173

A. Defining the Subject of Inquiry..................................................................174

B. Common Approaches to the Conflict of Laws Problem..........................174

1. The Vested Rights Theory...................................................................175

2. Interest Analysis...................................................................................175

3. The Second Restatement.....................................................................177

III. THE SUBSTANTIVE LAW IN BAKALAR..............................................................178

A. Swiss Law.....................................................................................................178

B. New York Law............................................................................................179

IV. CRITIQUE OF BAKALAR......................................................................................180

V. PURE INTEREST ANALYSIS AS AN ALTERNATIVE...........................................182

A. Allowing Flexibility.....................................................................................183

B. Principled Departure from the Lex Loci...................................................184

C. Simplicity and Universality Over Exceptions...........................................185

VI. CONCLUSION.......................................................................................................187

The realm of the conflict of laws is a dismal swamp, filled with quaking 7uagmires, and inhabited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon. The ordinary court, or lawyer, is quite lost when engulfed and entangled in it.1

-Dean William Prosser

The problem of conflict of laws in international stolen art cases appears to the uninitiated observer just as the field of conflicts in general appeared to Dean Prosser: like a pit of bubbling muck. Composed of only a handful of major cases, all purportedly applying different theories in different ways, the law of conflicts in stolen art cases can most charitably be described as "confused." The Second Circuit's recent decision in Bakalar v. Vavra has not helped to clarify this.2 However, in resolving practical choice of law problems, doctrine need not be a stumbling block. Where doctrine builds straightforward rules on clear foundations, it has the power to illuminate difficult legal questions and provide a solid framework for reasoned decisions.

This Note assesses the Second Circuit's application of "interest analysis" in Bakalar v. Vavra. It reflects on the meaning of interest analysis and considers Brainerd Currie's interest analysis as a principled solution to the problem of choice of law in stolen art cases. It proposes that courts should apply governmental interest analysis to the transaction by which a disputed property interest was created. If the forum state has an interest in applying its law to the transaction, its law should apply, even if a foreign state also has an interest. However, there will be many cases in which the forum state has no interest in the disputed transaction. In such cases, where a foreign state does have an interest, its law should apply. By considering the interests in play, but providing a clear, rules-based analysis that does not force courts to weigh competing interests or policy justifications, Currie's interest analysis can ensure consistency and predictability without sacrificing rationality. It also prevents courts from applying forum law based on vague policy arguments rather than a genuine interest in the specific transaction at issue. …

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