Dalhousie Law Journal


John Willis, geography, conflict-of-law, jurisprudence, vested rights theory, local law theory, choice-of-law


Fifty years ago John Willis wrote Two Approaches to the Conflict of Laws: A Comparative Study of the English Law and the Restatement of the American Law Institute. There he described two different - perhaps even opposed - conceptions of the problem posed by cases involving geographically complex facts. It is a goal of this article to assess the status and the vices and virtues of those two approaches in Canada today. Such a task is not a mere updating of Willis' piece, though that alone might be a useful exercise. In the first place, Willis' analysis takes place largely at the level of conflict-of-laws theory. He is concerned with the way in which one's understanding of the jurisprudential nature of conflict of laws affects one's approach. Of such matters there is virtually no discussion in Canadian courts today. For instance, argument over whether a Canadian conflict of laws is based on a vested rights theory or a local law theory rarely occurs today in either courtroom or classroom. But the disputes over theory of the 1930s are now reflected in disputes over judicial methodology: What facts are relevant to a choice-of-law decision? What questions should be asked and in what order? What sort of arguments can be made and what authorities should be appealed to? In addition to analyzing the state of Willis' two approaches today I want to comment on why the terms of the debate between those approaches have become so predictable.

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