Roger Michalski


The axiomatic beginning of every conflict of laws case is that a court must choose the law of one sovereign and disregard the law of all other sovereigns. One wins, gets to set the rules and regulate behavior, all others lose. This all-or-nothing scenario is the result of enshrining an old view of indivisible sovereignty into conflict of laws rules. The Article begins by explaining how this happened. Despite the importance of this assumption of indivisibility, no articles have examined why and how it became enshrined in conflict of laws doctrine. All too often it is treated as a truism without need for explanation or examination. The explanation, it turns out, is not compelling and has more to do with inertia and historical conditions hundreds of years ago than present concerns. Next, the Article critiques undivided sovereignty as outdated, descriptively misleading, and beholden to normative claims that are incompatible with modern conditions and sensibilities. It also explains the harm that adherence to indivisible sovereignty creates within the currently dominant conflict of laws methodologies.

In its place, the Article proposes that we reimagine conflict scholarship based on a fractional conceptualization of sovereignty. Instead of asking which sovereign gets to set all the rules, we should ask how to equitably share governance power and responsibility. The guiding insight of this proposal is that when conduct, assets, and litigants are distributed across multiple sovereigns, picking a single victor to provide governing law necessarily leads to a windfall of sovereignty for some and an undue denial of sovereignty for others. Instead of such a binary model of sovereignty, a fractional model of shared authority distributes the power to regulate conduct according to the fraction of the conduct that touches and concerns the sovereign. Sovereigns share responsibility over cross-border conduct. A deeper relationship to one sovereign leads to that sovereign having a greater fraction of influence, while a more fleeting relationship leads to a sovereign having a smaller fraction of influence. Each conflict of laws case would thus present a spectrum of influence to be divided into fractions among relevant sovereigns. Governing law in any given case is the mix of those fractions of influence. All concerned sovereigns would be able to regulate conduct but in a shared and mediated manner. Sovereignty becomes fractional.



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