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Realism and Revolution in Conflict of Laws: In With a Bang and Out With a Whimper

Conflict of laws scholarship in the United States in the middle half of the twentieth century produced what is commonly referred to as a “revolution.” Quite apart from its revolutionary content, this scholarship is extraordinary in three principal ways. First, it is extraordinary for its volume, its prominence and the eminence of many of those producing it. Following Joseph Story’s pioneering work in the nineteenth century and well into the middle of the twentieth century, some of the best and brightest legal minds in some of the leading American law schools were devoting their not inconsiderable energies to this field, publishing in the best of the American law journals and spawning a vast literature—Joseph Beale and Erwin Griswold, Wesley Hohfeld, Ernest Lorenzen and Walter Wheeler Cook, Hessel Yntema, David Cavers, Albert Ehrenzweig and Brainerd Currie. Second, this scholarship is extraordinary for its fiercely intellectual and visceral nature. The literature reveals not only unusual analytical and comparative thoroughness but also unusual competitive relentlessness and interpersonal rhetorical argumentativeness. The third extraordinary feature—with which this Symposium is concerned—is the striking impact this scholarship had on judicial practice in the United States and the equally striking absence of almost any impact on scholarship or judicial practice outside the United States.