In today’s global marketplace, the term “transnational litigation” is coming into vogue to describe domestic legal disputes between private parties with a foreign or international element.  Notwithstanding this shift in terminology, American courts have been handling the litigation of cases involving international law since their inception.   To resolve these disputes, early American courts often relied on private international law as a source of law, especially in the area of conflicts of laws.  In fact, the terms private international law and conflicts of laws were used interchangeably in early American judicial decisions.

Despite the flourish of treaty-based private international law agreements in the past century, private international law in America was historically incorporated into the common law at the federal and state level as part of customary international law.   As the Supreme Court stated in Hilton v. Guyot, 159 U.S. 113 (1895):

International law, in its widest and most comprehensive sense,-including not only questions of right between nations, governed by what has been appropriately called the ‘law of nations,’ but also questions arising under what is usually called ‘private international law,’ or the ‘conflict of laws,’ and concerning the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation,-is part of our law, and must be ascertained and administered by the courts of justice as often as such questions are presented in litigation between man and man, duly submitted to their determination.

Hilton v. Guyot also described the importance of international comity in American conflicts of law jurisprudence, which the Court described as “the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.”

Despite Hilton’s language on the incorporation of private international law as “part of our law,” the notion of an independent federal common law derived from international law evaporated in most contexts in the twentieth century after the Supreme Court’s decision in Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).  Consequently, conflicts of laws has evolved into a procedural doctrine at the state and federal level without reference to its international roots.   The private international law basis for American conflicts of law jurisprudence is therefore easy to forget.  As the Hague Conference on Private International Law continues its consideration of a treaty harmonizing choice of law rules governing international contract disputes, however, it is important to understand and revisit the Supreme Court’s treatment of private international law as a basis for conflicts of law jurisprudence in historical perspective.  

One of the earliest American treatises on private international law was prepared by Supreme Court Justice Joseph Story in his work, Commentaries on the Conflict of Laws (1846).  Story’s Commentaries described the private international law basis for his comity and conflict of laws theory, and continues to be cited in Supreme Court cases.  Justice Story based his theory of comity and conflicts of laws on three generalizations of existing private international law.  First, a nation has complete sovereignty within its jurisdiction to enact laws binding on all persons and property within its territorial borders.  Second, a nation has no authority to enact laws binding on persons or property outside its territory (i.e., laws do not have extraterritorial effect).  Third, and as a result of the first two principles, the effect to be given to foreign law in the domestic context is solely a matter of local law and policy as an expression of consent to be bound.   Simply put, a domestic court may apply foreign law only to the extent that local law allows it.

In recent years, however, a significant amount of scholarship has emerged examining the historical development of choice of law jurisprudence in the United States as a mechanism to resolve the tensions between slave states and free states in ante-bellum America.  For example, Alan Watson's book entitled Joseph Story and the Comity of Errors: A Case Study in Conflict of Laws (1992) posits that Justice Story misunderstood existing private international law norms on conflict of laws, which led American courts to embrace a doctrine that intensified tensions between the laws of free states and slave states culminating in the Civil War.  Austin Allen’s book, Origins of the Dred Scott Case (2006) also discusses the influence of Justice Story’s Commentaries on the slavery debate in the nineteenth century. 

There is no dispute, however, that Justice Story’s framework for conflicts of laws was central to one of the key determinations in perhaps the most infamous of all Supreme Court cases, the Dred Scott decision, Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).  Dred Scott was the slave of Dr. John Emerson, a surgeon in the United States Army.  Like military members today, Dr. Emerson was compelled to move from state to state as part of his military service.  When so doing, he took his property with him, including his slave Dred Scott.  The problems arose when Dr. Emerson moved from Missouri (a slave state), to Illinois (a free state), and later to the federal territory of Wisconsin (not then a state, but subject to the federal ban on slavery in the Missouri Compromise of 1820).   When Dr. Emerson eventually moved back to Missouri, he sold Scott to a new slave owner, John Sandford.   Scott then sued in Missouri state court, claiming that by virtue of the moves to a free state and free federal territory, he had been emancipated and could no longer be held as a slave.  Although the state trial court ruled in Scott’s favor, the Missouri Supreme Court reversed.  Scott next sued in federal court in Missouri, which also rejected his claim.  Scott then appealed to the United States Supreme Court, and the outcome of that case is now an indelible part of American history. 

Dred Scott is noted primarily for two significant constitutional rulings.  In the first ruling, Chief Justice Roger Taney wrote for the majority of the Court that black men, even if free, could not be citizens of the United States or of the states, and thus were not entitled to constitutional protections and could not sue in federal courts.  Consequently, the lower federal court lacked jurisdiction to entertain Scott’s action.  Although the Court concluded that subject matter jurisdiction was lacking, it continued to consider the merits of whether federal law could apply to emancipate Scott by virtue of his residence in the Wisconsin Territory.  In reaching this second significant ruling, Chief Justice Taney found that the Missouri Compromise of 1820 was unconstitutional insofar as Congress attempted to ban slavery in Wisconsin, finding that Congress exceeded the authority granted in the Constitution allowing the federal government to regulate federal territories. 

Notwithstanding the domestic implications of Dred Scott, from an international law perspective, the Dred Scott decision reflects important debates about the role of international law in America that continue today.  For example, from a constitutional perspective, Chief Justice Taney, the concurring justices and the dissenting justices disagreed vehemently on what role international law and the opinions of foreign courts would have in deciding the constitutional rights of slaves and freed men in the United States.  Chief Justice Taney’s words on this issue could easily have been written today: 

No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.  Such an argument would be altogether inadmissible in any tribunal called on to interpret it.  If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption.  

Beyond the disagreement over the use of foreign law in constitutional interpretation, Dred Scott was also the first Supreme Court decision to use the phrase “private international law” to describe the application of choice of law rules according to norms recognized under the law of nations.  Of central importance to determining Dred Scott’s status was the effect of Illinois or federal law upon his return to Missouri.  The majority opinion, the concurring opinions, and the dissent applied the basic rule derived from Justice Story’s Commentaries that the effect of Illinois or federal law had to be resolved according to Missouri law.  If Missouri, as a matter of comity, recognized the change in personal status, Dred Scott would be free.  The justices disagreed, however, on how to determine Missouri law.   

Chief Justice Taney’s majority decision reached this conflicts of law issue in a straightforward manner.   Because the Supreme Court of Missouri had decided in parallel litigation that Dred Scott was still a slave, Chief Justice Taney reasoned that “it is now firmly settled by the decisions of the highest court in the State, that Scott and his family upon their return were not free, but were, by the laws of Missouri, the property of the defendant.”  In dissent, however, Justice Curtis disagreed with this conclusion.  According to Justice Curtis, Missouri law was presumed to follow settled rules of private international law as part of the common law, unless a statutory change or clear public policy displaced them.  In this regard, Justice Curtis wrote that judges could not substitute their own opinions on public policy for those of politicians, and thus the opinion of the Missouri Supreme Court on this issue was not definitive.  Because Missouri had not expressly repudiated this rule, and indeed recognized Dred Scott’s marriage in the Wisconsin Territory as a change in personal status, it would also recognize the change in status from slave to free man. 

As this debate shows, while Dred Scott is remembered for its discussion of the constitutional rights of African Americans and its use of judicial review to strike down the Missouri Compromise, the justices were extremely influenced by the principles of private international law that underlie the historical development of conflicts of law jurisprudence in the United States.  Whether this jurisprudence can be harmonized into an international treaty must take into account not only the current application of the doctrine, but the historical circumstances that shaped it.