Full opinion text
MEMORANDUM & ORDER WEINSTEIN, Senior District Judge. Table of Contents I.Introduction.49 II.Pending Tobacco Cases.50 A. H.K. Porter Company v. B.A.T. Industries, et al .51 B. National Asbestos v. Philip Morris, Incorporated, et al.51 C. Blue Cross and Blue Shield, et al. v. Philip Morris, Incorporated, et al.52 D. Simon, (formerly Stugeon) et al. v. Philip Morris, Incorporated, et al.52 E. Bergeron, et al. v. Philip Morris, Incorporated, et al.52 F. Falise, et al. v. American Tobacco, et al.52 G. William Decie, et al. v. American Tobacco, et al.52 H. James Mason, et al. v. American Tobacco, et al.63 I. James Ebert v. Philip Morris, Incorporated, et al.53 J. Simon, et al. v. American Tobacco, et al.53 K. Raymark Industries v. American Tobacco, et al.53 III.Choice of Law. 53 A. Choice of Law Revolution: Mechanical Lex Loci to Pragmatic Interests 54 Babcock v. Jackson. ÜI Refinements to Babcock. CB a. Schultz. Cl b. Cases Involving Mass Disasters. i. Aii-plane Crashes. Products liability. Oí 05 a. Antiquity. b. Middle Ages .'. c. English Law. d. The Nineteenth Century and Early American Conflicts Law. OI e. Current Choice of Law Theory in the United States. 05 4. Scholarship, Comparative Statutory Law, and Precedent in Complex Litigation . Constitutional Limits. W Interest Analysis. Q 1. New York’s Conflicts of Law Principles . 2. New York’s Interests In The Instant Dispute. —Q 3. Depecage. Manageability. Kmrvmatinn... TV Cnnhmsinn I. Introduction In Simon I (99 CV 1988), a class claims pursuant to Rule 23 of the Federal Rules of Civil Procedure: (1) compensatory damages for cancer due to its members’ smoking, and (2) punitive damages. Simon II (00 CV 5332) involves a broader class of all persons who may have been injured by tobacco; it includes those suing in Simon I. See Simon v. Philip Morris Inc., 2000 WL 1658337 (E.D.N.Y., Nov 06, 2000) (NO. 99 CV 1988). It is suggested that, with limited exceptions described below, the individual and class action suits pending in this court (see Part II, infra ), be tried as part of Simon II; all of their allegations and claims would be embodied in Simon II. The parties may amend Simon II to include additional claims for tobacco-related injuries due to passive exposure of non-smokers and in other respects to cover the universe of private Tobacco claims covered by the proposed Simon II class action. A sampling of individual compensatory claims could be tried in Simon II in connection with the compensation opt-out class. Trial in this court would permit decision on general issues of fact and law such as fraud and general causation applicable to the entire Simon II opt-out class. Individual’s compensation claims could then be transferred to appropriate federal district courts throughout the country for decision on such issues as individual causation, individual damages and individual statutes of limitations defenses. The number of individual compensatory claims tried in this court might be sufficient, if selected according to appropriate statistical and other principles, to provide a basis for determination of total probable compensatory damages throughout the nation. This projection might permit the jury in this court to fix total allowable punitive damages for the nation in the Simon II non-opt-out punitive class, to be disbursed in a modified form of fluid recovery to health, research and other protective institutions and to persons injured by tobacco requiring special assistance. DaubeH and other hearings would be required to determine the statistical viability of models supporting this approach. A number of such healings have already been held and rulings made in cases being prepared for trial in this court. See Part II, infra. While Simon II is being prepared for trial there appears to be no reason why the individual claims already scheduled for trial should not go forward. A number of other individual cases may also be set for trial while preparation of the Simon II trial is underway. It is appropriate to deal with the issue of class action certification in Simon II rather than in Simon I. Simon II, as ultimately amended, would then cover all private claims for injury as a result of Tobacco’s activities, with some exceptions. See, e.g., United States v. Philip Morris, Inc., 116 F.Supp.2d 116, 2000 Daily Journal D.A.R. 10,769 (D.D.C.2000) (federal claim for reimbursement); National Association of Attorneys General, Multistate Settlement with the Tobacco Industry, (visited Nov. 13, 2000) ( http://umm.tobacco.neu.edu/Ex-tra /multistatesettlementMm (state claims)). Certification issues in Simon II appear to be essentially the same as those presented in Simon I, though slightly more complex in view of the broader scope and number of subclasses in Simon II. It is consonant with Rule 16 of the Federal Rules of Civil Procedure to structure the Tobacco cases pending in this court so as to limit the number of proceedings and of trials, as well as of appeals pursuant to Rule 23(f) of the Federal Rules of Civil Procedure. Accordingly, the application for certification of Simon I was denied with a stay of the end of tolling of statutes of limitations. See Simon v. Philip Morris Inc., 2000 WL 1658337 (E.D.N.Y., Nov.6, 2000) (No. 99 CV 1988); see also, The National Asbestos Workers Medical Fund v. Philip Morris, Inc., 2000 WL 1424931 (E.D.N.Y. Sept.26, 2000) (stay of tolling). Simon II, as a class action, has an independent tolling effect. The court will attempt to assist the parties in addressing issues likely to arise in preparation of Simon II for trial by issuing memoranda on such subjects as the propriety of the use of statistics to project probable compensatory damages as a predicate for punitive damages; Seventh Amendment implications of allowing separate juries to decide separable issues; and Rule 23 procedural issues, such as selecting subclass and class counsel, notifying members of the class, and using various methods to permit effective communication with members of the class and input of class members wishes. Part II of this memorandum includes a summary of pending cases. Part III discusses of choice of law. II. Pending Tobacco Cases The pending Tobacco cases in this court have been the subject of many motions and orders in contemplation of trials. See Simon v. Philip Morris Inc., No. 99 CV 1988, 2000 WL 1658337 (E.D.N.Y., Nov 06, 2000); Simon v. Philip Morris Inc., 194 F.R.D. 73 (E.D.N.Y.2000); Simon v. Philip Morris, Inc., 86 F.Supp.2d 95 (E.D.N.Y. 2000); National Asbestos Workers Medical Fund v. Philip Morris, Inc., No. 98 CV 1492, 2000 WL 1424931 (E.D.N.Y., Sep 26, 2000); National Asbestos Workers Medical Fund v. Philip Morris, Inc., No. 98 CV 1492, 2000 WL 1364358 (E.D.N.Y., Sep 20, 2000); National Asbestos Workers Medical Fund v. Philip Morris, Inc., No. 98 CV 1492, 2000 WL 777834 (E.D.N.Y., Jun 13, 2000); National Asbestos Workers Medical Fund v. Philip Morris, Inc., 86 F.Supp.2d 137 (E.D.N.Y.2000); National Asbestos Workers Medical Fund v. Philip Morris, Inc., 71 F.Supp.2d 139 (E.D.N.Y. 1999); National Asbestos Workers Medical Fund v. Philip Morris, Inc., 74 F.Supp.2d 221 (E.D.N.Y.1999); National Asbestos Workers Medical Fund v. Philip Morris, Inc., 74 F.Supp.2d 213 (E.D.N.Y. 1999); National Asbestos Workers Medical Fund v. Philip Morris Inc., 23 F.Supp.2d 321 (E.D.N.Y.1998); National Asbestos Workers Medical Fund v. Philip Morris Inc., No. 97 CV 1492, 1998 WL 372410 (E.D.N.Y.1998); Falise v. American Tobacco Co., No. CV 99-7392, 2000 WL 1370437 (E.D.N.Y., Sep 21, 2000); Falise v. American Tobacco Co., No. CV. 99-7392, 2000 WL 1336697 (E.D.N.Y., Sep 15, 2000); Falise v. American Tobacco Co., No. CV 99-7392, 2000 WL 1292671 (E.D.N.Y., Sep 08, 2000); Falise v. American Tobacco Co., 107 F.Supp.2d 200 (E.D.N.Y.2000); Falise v. American Tobacco Co., No. CV 99-7392, 2000 WL 1144697 (E.D.N.Y., Jul 25, 2000); Falise v. American Tobacco Co., No. CV 99-7392, 2000 WL 1010982 (E.D.N.Y., Jul 19, 2000); Falise v. American Tobacco Co., No. CV 99-7392, 2000 WL 1010978 (E.D.N.Y., Jul 18, 2000); Falise v. American Tobacco Co., 94 F.Supp.2d 316 (E.D.N.Y 2000); Falise v. American Tobacco Co., No. 99 CV 7392, 2000 WL 433097 (E.D.N.Y., Apr 18, 2000); Falise v. American Tobacco Co., 91 F.Supp.2d 525 (E.D.N.Y.2000); Falise v. American Tobacco Co., No. 99 CV 7392, 2000 WL 264332 (E.D.N.Y., Jan 24, 2000) (No. CV-98-1492, CV-97-7658, CV-98-3287, CV-98-675); Falise v. American Tobacco Co., 193 F.R.D. 73 (E.D.N.Y.2000); Falise v. American Tobacco Co., 241 B.R. 63 (E.D.N.Y.1999); Falise v. American Tobacco Co., 241 B.R. 48 (E.D.N.Y.1999); Falise v. American Tobacco Co., No. 99 CV 7392, 1999 WL 98626 (E.D.N.Y., Feb 18, 1999) (No. 97 CV 7640, 97 CV 7658, 98 CV 675); Falise v. American Tobacco Co., No. 97-CV-7640, 1998 WL 372401 (E.D.N.Y., Jul 02, 1998); Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris, Inc., 113 F.Supp.2d 345 (E.D.N.Y. 2000); Blue Cross and Blue Shield of New Jersey v. Philip Morris, Inc., 53 F.Supp.2d 338 (E.D.N.Y.1999); Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris, Inc., 36 F.Supp.2d 560 (E.D.N.Y.1999); Blue Cross and Blue Shield of New Jersey, Inc. v. Phillip Morris, Inc., No. 98 CV 3287, 1999 WL 104815 (E.D.N.Y., Feb 25, 1999); Bergeron v. Philip Morris, Inc., 100 F.Supp.2d 164 (E.D.N.Y.2000); Bergeron v. Philip Morris, Inc., No. 99 CV 6142, 2000 WL 748144 (E.D.N.Y., Jun 08, 2000); H.K. Porter Co., Inc. v. American Tobacco Co., 71 F.Supp.2d 73 (E.D.N.Y. 1999); In re Tobacco Litigation, Eastern Dist. of New York, 193 F.R.D. 92 (E.D.N.Y.2000); In re Tobacco Litigation, 192 F.R.D. 90 (E.D.N.Y.2000); In re Simon (II) Litigation, No. 00 CV 5332, 2000 WL 1252182 (E.D.N.Y., Sep 06, 2000) (98 CV 0675, 99 CV 6142, 98 CV 1492, 97 CV 7658, 99 CV 1988, 98 CV 3287, 99 CV 7392, 00 CV 4632). Set out below are brief descriptions of the pending cases. A. H.K. Porter Company v. B.A.T. Industries, et al, 97 CV 07658 (filed 12/31/97). Plaintiff has paid substantial sums to those injured by inhaling residuals of its asbestos products. It sues tobacco producers to recover that portion of damages attributable to smoking. Motions to dismiss for failure to state a cause of action, for lack of jurisdiction and to settle discovery disputes have been decided. A trial date has not been set, but discovery is largely covered by that in related cases so that the case is almost ready for trial. See docket entries 1-148. A writ of mandamus sought by defendants was denied by the court of appeals. See docket entry 149. The punitive damage aspects are stayed with the view that they can be dealt with in Simon II. B. National Asbestos v. Philip Morris, Incorporated, et al, 98 CV 01492 (filed 2/27/98). This case was brought as a class action on behalf of some four thousand “collectively-bargained” health and welfare trust funds. The putative class members are “all self insured, multi-employer benefit plans ... in the building trades and their trustees.” They seek to recover money expended for health and welfare benefits for fund beneficiaries injured by tobacco. A variety of dispositive motions have been denied. Discovery has been extensive; a series of discovery orders has been issued. Certification of the class has been denied and this order is being appealed. See docket entries 393-399. The court is prepared to try one of the cases in the class as a “test.” It will then reconsider the certification issue. Discovery and other motion practice has proceeded sufficiently to permit an early trial of a test case. See docket entries 1-40. A trial date for May 12 has been tentatively set by the magistrate judge. The punitive damage aspects are stayed as in H.K Porter. See Part II A, supra. C. Blue Cross and Blue Shield, et al v. Philip Morris Incorporated, et al., 98 CV 03287 (filed 4/29/98). Twenty-six Blue Cross/Blue Shield health care plans located across the country bring claims similar to those in National Asbestos. A series of dispositive, Daubert, and in limine motions have been decided. Discovery, Daubert, and in li-mine practice has gone forward to the point where a test case can be tried. See docket entries 1-616. Trial of the claims of Empire Blue Cross and Blue Shield of New York has been set to follow the trial in Falise, Part F, infra. See docket entry 510. The punitive damage aspects are stayed as in H.K. Porter. See Part II A, supra. D. Simon, (formerly Stugeon) et al. v. Philip Morris Incorporated, et al., 99 CV 01988 (filed 04/09/99) (Simon I). This is a national class action on behalf of: All persons residing in the United States, or who were residents of the United States at the time of their deaths, who have a 20 pack-year history of smoking Defendants’ cigarettes and who, individually or through an estate or other legal representative, had a timely claim as of April 9, 1999 for personal injury damages or wrongful death arising from cancer of the lung. A pack-year is one package of cigarettes consumed per day per year. A series of dispositive and discovery motions have been decided, but the case is not yet ready for trial. See docket entries 1-150. A motion for certification, as already noted, has been denied. See Part I, supra. The punitive damage aspects are stayed as in H.K. Porter. See Part II A, supra. E. Bergeron, et al. v. Philip Morris, Incorporated, et al., 99 CV 06142 (filed 9/29/99). Plaintiffs, trustees of the Massachusetts State Carpenters Health Benefits Fund, bring this action on somewhat the same grounds as National Asbestos, Part II B, infra. A series of disposition and discovery motions have been decided, but the case is not ready for trial. See docket entries 1-61. The punitive damages aspects are stayed as in H.K. Porter. See Part II A, supra. F. Falise, et al. v. American Tobacco, et al., 99 CV 7392 (filed 11/12/99). This is essentially the same case as one brought earlier, which was dismissed on jurisdictional grounds. Extensive disposi-tive, discovery Daubert and in limine motions have been decided. See docket sheet entries 1-515. It was set for trial in July of this year, but was stayed by the court of appeals pending a decision on a mandamus petition. Mandamus has now been denied, and the trial has commenced. The punitive damage aspects were stayed as in H.K Porter. See Part II A, supra, but the parties have been informed that, should there be a viable claim for such damages, punitive damage issues will be tried on a bifurcated basis following the ongoing trial on compensatory damages. G. William Decie, et al v. American Tobacco, et al., 2000 CV 02340 (filed 4/21/2000). This class action has not proceeded far. Stipulations extending time to answer have been filed. See docket entries 1-14. The punitive damage aspects are stayed as in H.K Porter. See Part II A, supra. H. James Mason, et al v. American Tobacco, et al. 2000 CV 0442 (filed 08/01/2000). This class action was transferred from the Northern District of Texas (97 CV-293-R). It has not proceeded appreciably in this court. See docket entries 1-32. A motion has been made, but not decided, to consolidate this ease with Simon II as a subclass. See docket entry 32. The punitive damage aspects are stayed as in H.K. Porter. See Part II A, supra. I. James Ebert v. Philip Morris, Incorporated, et al., 2000 CV 04632 (filed 8/09/2000). This action has not proceeded appreciably. See docket entry 1. The punitive damage aspects are stayed as in H.K. Porter. See Part II A, supra. J. Simon, et al. v. American Tobacco, 2000 CV 05332 (filed 09/06/2000) (Simon II). This class action includes as subclasses all the tobacco cases pending except Decie. See Part G. It seeks both compensatory and punitive damages. While motion and discovery proceedings have not been extensive in this case, they are fairly advanced because the case incorporates all the related proceedings described in Parts A-I. See docket entries 1-18. The parties have proposed counsel to represent the subclasses. A request for approval of subclass counsel was ordered published. See In Re Simon II, order dated October 23, 2000. K. Raymark Industries v. American Tobacco, et al., 1998 CV 0675 (filed 01/30/98). After considerable preparation for trial in the Eastern District of New York the case was transferred to the Eastern District of Pennsylvania by the Multidistrict Litigation Panel. See docket entries 1-74. A motion to retransfer the case to this court is pending elsewhere. The case is similar to the Falise case. See Part II F, supra. III. Choice of Law This memorandum deals primarily with conflicts of laws as they affect an opt-out compensatory national class. The proposed non-opt out, national punitive damage class will be treated in a separate memorandum. The need to fix and limit punitive damages in one proceeding because of constitutional and, perhaps, asset constraints on the defendants, in addition to different punitive rules among the states and proposals to devote the punitive damage recovery to national research, treatment and the special needs of particular injured persons suggests that punitive damage conflicts issues be addressed separately. A choice of law question is presented when a dispute implicates the interests of two or more states and application of each state’s law would be consistent with the Full Faith and Credit and Due Process Clauses of the Constitution. See Diehl v. Ogorewac, 836 F.Supp. 88, 91 (E.D.N.Y.1993); Cooney v. Osgood Machinery, 81 N.Y.2d 66, 70-71, 612 N.E.2d 277, 279, 595 N.Y.S.2d 919, 921 (1993). These modest constitutional requirements are met if each state whose law is sought to be applied has “significant contacts or significant aggregation of contacts creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.” Allstate Ins. Co. v. Hague, 449 U.S. 302, 313, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981). See also Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818-23, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985). A federal court sitting in diversity applies the choice of law principles of the forum state, in this case New York, to decide which state’s substantive law controls. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). ' Choice of law rules apply equally to claims brought under common law and statutory law. See, e.g., Bergeron v. Philip Morris, 100 F.Supp.2d 164, 170 (2000) (applying New York choice of law rules to resolve conflicts between the New York Consumer Protection Act and Massachusetts’ Unfair Deceptive Trade Practices Act); see also Volt Systems Development Corp. v. Raytheon Co., 155 A.D.2d 309, 309-310, 547 N.Y.S.2d 280 (N.Y.App.Div.1989) (applying New York choice of law principles to Massachusetts’ Unfair Deceptive Trade Practices Act). For federal substantive law issues the court will apply the applicable national law (subject to circuit and district differences). Where both state and federal substantive claims are made in the same case — as here — the law of Klaxon continues to apply to state issues. In practice, however there is a tendency to emphasize forum law, for ease of administration of the litigation, as by utilization of state and federal jury charge books the judge is likely to have on chambers shelves. A. Choice of Law Revolution: Mechanical Lex Loci to Pragmatic Interests 1. Babcock v. Jackson More than a third of a century ago, a sharp change in choice of law standards resulted when Chief Judge Stanley Fuld published his widely followed opinion in Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963). See Hamilton v. Accu-Tek, 47 F.Supp.2d 330, 335 (E.D.N.Y.1999); Maurice Rosenberg et al., Conflict of Laws (Teacher’s Manual) 86 (10th ed.1996) (“Babcock is widely regarded as the landmark case that began the change in approaches to choice of law by United States courts.”); Harold L. Korn, The Choice of Law Revolution: A Critique, 83 Colum.L.Rev. 772, 827 (1983). Babcock adopted for New York an “interest analysis” for torts conflicts departing from the American standard application of lex loci delicti, the law of the place of the wrong. Compare 2 J. Beale, A Treatise on the Conflict of Laws 1288 (1935) (“It is impossible for a plaintiff to recover in tort unless he has been given by some law a cause of action in tort; and this law can only be given by the law where the tort was committed.”). The foundation of this current approach is that: “[jjustice, fairness and, the best practical result, may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties has the greatest concern with the specific issue raised in the litigation.” Babcock v. Jackson, 12 N.Y.2d at 481, 191 N.E.2d 279, 240 N.Y.S.2d 743 (internal quotation marks and citation omitted). Since Babcock requires a return to basic principles, eschewing mechanical rules in favor of a practical analysis of the interests of the various states involved, Judge Fuld’s historic words bear repeating. He first noted that various “factors ... relevant to the purpose served by the enforcement or denial of the remedy must be evaluated.” 12 N.Y.2d at 477, 240 N.Y.S.2d 743,191 N.E.2d 279. The question presented is simply drawn. Shall the law of the place of the tort invariably govern the availability of relief for the tort or shall the applicable choice of law rule also reflect a consideration of other factors which are relevant to the purposes served by the enforcement or denial of the remedy? Id. The answer to this question was a resounding affirmation of the need to consider other factors. Babcock, as the opinion pointed out, was a single case, “where the conduct causing the injury and the injury itself occurred in the same jurisdiction.” Id., n. 2. The clear implication was that where “injury” and “place of wrong” are not the same (and as in the Tobacco cases, where venues are multiplied to the nth degree) the need for Babcock principles are even more pressing. The Babcock opinion rejected the old vested rights theory in favor of “practical considerations.” Id. at 478, 240 N.Y.S.2d 743,191 N.E.2d 279. “The vice of vested rights theory,” it has been amply stated, “is that it affects to decide concrete cases upon generalities which do not state the practical considerations involved”. More particularly, as applied to torts, the theory ignores the interest which jurisdictions other than that where the tort occurred may have in resolution of particular issues. Id. (citations omitted) The court pointed out the “dissatisfaction with the mechanical formulae of the conflicts of law.”/d at 479, 240 N.Y.S.2d 743, 191 N.E.2d 279 (internal quotation marks omitted). “Center of gravity,” “grouping of contacts,”'and “most significant contacts with the matter in dispute,” are among the catch phrases used to describe New York’s new pragmatic approach. Id. The “center of gravity” or “grouping of contacts” doctrine adopted by this court' in conflicts cases involving contracts impresses us as likewise affording the appropriate approach for accommodating the competing interests in tort cases with multi-State contacts. Justice, fairness, and the best practical result may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation. The merit of. such a rule is that it gives to the place having the most interest in the problem paramount control over the legal issues arising out of a particular factual context and thereby allows the forum to apply the policy of the jurisdiction most intimately concerned with the outcome of the litigation. Id. at 482, 240 N.Y.S.2d 743, 191 N.E.2d 279. (citations and internal quotations omitted.). Finally, the Court of Appeals emphasized that not all issues of law must be resolved by reference to the law of the same jurisdiction. In conclusion, then, there is no reason why all issues arising out of a tort claim must be resolved by reference to the law of the same jurisdiction. Where the issue involves standards of conduct, it is more than likely that it is the law of the place of the tort which will be controlling, but the disposition of other issues must turn, as does the issue of the standard of conduct itself, on the law of the jurisdiction which has the strongest interest in the resolution of the particular issue presented. Id. at 484, 240 N.Y.S.2d 743, 191 N.E.2d 279. In a series of subsequent cases the Court of Appeals refined the interest inquiry, fashioning guidelines for particular classes of commonly occurring cases “which give[ ] the greatest weight to those contacts which are relevant to the policies animating the particular rules in conflict.” Hamilton, 47 F.Supp.2d at 336-338 (describing refinements). None of these categories created by the Court of Appeals includes the complex activity described in the instant case which is claimed to have given rise to hundreds of billions of dollars in damages to millions of potential plaintiffs from every state in the union. Although the current post-Babcock Court of Appeals guidelines set forth a workable framework for analyzing many ordinary cases and traditional conflicts, they are not unyielding or comprehensive. They are most useful in those situations to which they apply as a “proxy for the ultimate question of which state has the greater interest in having its law applied.” See, e.g. Hamilton, 47 F.Supp.2d at 337; see also Newmeier v. Kuehner, 31 N.Y.2d 121, 127, 335 N.Y.S.2d 64, 286 N.E.2d 454 (1972) (Babcock and its progeny “have helped us uncover the underlying values and policies which are operative in this area of the law ... Now that these values and policies have been revealed, we may proceed to the next stage in the evolution of law — -the formation of a few rules of general applicability”) (emphasis added); see also Korn, The Choice of Law Revolution: A Critique, 83 Colum.L.Rev. at 884 (noting Chief Judge Fuld’s admonition that rules developed in Neumeier were a distillation of patterned cases applying interest analysis); see also Symeon C. Symeonides, Choice of Law in American Courts in 1991: A View “From The Trenches”, 43 Am. J. Comp. L. 1,12 (1995) {Schultz court did not return New York conflicts law to the traditional “last event necessary” test). The New York Court of Appeals has never specifically addressed how conflicts rules apply in a complex litigation setting like the present one. Defendants direct the court to an intermediate appellate court and two trial court decisions which denied certification in global class actions purportedly due to substantial conflicts problems. See, e.g., Ackerman v. Price Waterhouse, 252 A.D.2d 179, 683 N.Y.S.2d 179, 189-190 (App.Div.1998); see also Geiger v. American Tobacco Co., 181 Misc.2d 875, 696 N.Y.S.2d 345, 352 (Sup. Ct. Queens Cty.1999) (appeal pending); Russo v. Massachusetts Mutual Life Ins. Co., 178 Misc.2d 772, 680 N.Y.S.2d 916, 919 (Sup.Ct. Tompkins Cty.1998). These cases relied upon by defendants do not, however, establish a general conflicts of laws category because the question of whether a particular action qualifies for class status under New York law is a matter of discretion exercised on a case-by-case basis by the Appellate Division involving many criteria in addition to choice of law. See, e.g., Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 698 N.Y.S.2d 615, 720 N.E.2d 892 (1999) (examining relevant CPLR 901(a) class action factors, but deferring to Appellate Division’s discretion to certify class); David D. Siegel, New York Practice § 142 (3rd ed. 2000-01 Supplement). These case-by-ease lower court decisions do not purport to negate Court of Appeals choice of law principles. The DES and Hamilton v. Accu-Tek decisions in this court are also non-controlling. Those cases involved trials of individual plaintiffs’ claims. While these cases applied traditional conflicts rules, the result in each was consistent with the case specific needs and policies in adjudicating a non-class action. See In re DES Cases, 789 F.Supp. 552, 566-570 (1992) (“Such a result also comports with the practicalities of mass tort cases. To the fullest possible extent, such cases should be consolidated for pretrial discovery and motions, settlement discussions and trial; administered by one or a few judges; and tried under one set of substantive and procedural rules applicable to all consolidated cases.”) (emphasis added); see also Hamilton v. Accu-Tek, 47 F.Supp.2d at 340 (“The points of distribution involved many states and vary from company to company; if the significant contact were the point of distribution, so many states’ laws would be involved that consolidation of defendants would be impractical.”) (emphasis added). In two related cases, Falise v. American Tobacco Co. and Bergeron v. Philip Morris, it was held that the national and worldwide scope of Tobacco’s alleged deceptive conduct and false advertising requires re-examining choice of law guidelines heretofore applied in more limited disputes. See Falise, 94 F.Supp.2d 316, 353-354 (2000); accord Bergeron, 100 F.Supp.2d at 170; see also Patrick J. Borchers, Choice Of Law in American Courts in 1992: Observations and Reflections, 42 Am. J. Comp. L. 125, 141 (1994) (“Mass torts have presented some of the most difficult problems for interest analysis and variants thereof’). In the present controversy the court is impelled to return to the bedrock principle in Babcock — that controlling effect should “be given to the law of the jurisdiction which has the greatest interest in the specific issues raised in the litigation.” See Bergeron, supra, at 169. Before evaluating constitutional and interest analysis requirements, examination of the New York Court of Appeals refinements of Babcock, the history of their application in mass torts cases, the general history of conflicts law, and current scholarship and precedent in complex litigation demonstrates why founding principles in Babcock requires a hand-tailored application of that case’s principle to a tort class action of the magnitude and scope of the Tobacco litigation. 2. Refinements to Babcock After Babcock a distinction was drawn between laws that regulate primary conduct (such as standards of care) and those that allocate losses after the tort occurs (such as guest statutes or vicarious liability rules). See Cooney v. Osgood Machinery, Inc., 81 N.Y.2d 66, 72, 595 N.Y.S.2d 919, 612 N.E.2d 277 (1993). If conflicting conduct-regulating laws are at issue, the law of the jurisdiction where the tort “occurred” will generally apply because that jurisdiction usually has the greatest interest in regulating behavior within its borders. Id. Conduct-regulating rules have the supposed prophylactic effect of influencing conduct to prevent injuries from occurring. Hamilton, 47 F.Supp.2d at 336; see also Padula, 84 N.Y.2d 519, 521, 620 N.Y.S.2d 310, 644 N.E.2d 1001 (1994). If competing “post event remedial rules” are at stake other factors are considered. Schultz v. Boy Scouts, 65 N.Y.2d 189, 195, 197-199, 491 N.Y.S.2d 90, 480 N.E.2d 679 (1985) (“analysis ... flexible”; “relative interest of ... jurisdictions in having their laws apply will depend on the particular tort issue in conflict in the case”); see Hamilton, 47 F.Supp.2d at 336-337 (describing different rules under Neumeier depending on domicile and place of injury). Because this action largely implicates conduct regulating laws (e.g., fraud and consumer protection), a court would ordinarily consider where the tort “occurred” in deciding which forum has the greatest interest in applying its laws. However, multi-state transactions are more complex when the defendant’s tor-tious conduct and the plaintiffs injury occur in different states. See Symeon C. Symeonides, Choice of Law in American Courts in 1994: A View “From The Trenches”, 43 Am. J. Comp. L. 1, 12 (1995) (describing the inapplicability of the Neu-meier rules when conduct and injury occur in separate states); see also Rice v. Nova Biomedical Corp., 38 F.3d 909, 916 (7th Cir.1994) (“[T]he place of the wrongful conduct and the place of the injury are treated as separate contacts between the lawsuit and the states in question. As a result, when the places are different, the presumption that the law of the place of ‘the tort’ applies cannot be used; the tort has no place; instead it has contacts, presumably offsetting, with at least two states. If defamatory statements are uttered in Massachusetts and the plaintiff is hurt in Illinois, neither state is the place of the tort.”) (citations omitted); Korn, The Choice of Law Revolution, supra, at 805-806 (recounting how the lex loci delicti rule historically did not work well in “tort actions outside the personal injury field— such as defamation, unfair competition, or misrepresentation — in which it is often difficult to identify a single place of injury”). Schultz has sometimes been incorrectly cited for the narrow proposition that the “place of the wrong” is always where the “last event necessary to make the actor liable occurred.” Schultz, 65 N.Y.2d at 195, 491 N.Y.S.2d 90, 480 N’.E.2d 679. For actions sounding in fraud and deceit, the substantive law of the state in which the injury is suffered, rather than the state where the fraudulent conduct was initiated, often governs. See, e.g., Sack v. Low, 478 F.2d 360, 365 (2d Cir.1973) (“[W]hen a person sustains loss by fraud, the place of wrong is where the loss is sustained, not where fraudulent representations are made.”); Sound Video Unlimited v. Video Shack Inc., 700 F.Supp. 127, 134 (S.D.N.Y.1988) (in fraud and related actions, the last event necessary is where the loss is suffered); Natural Resources Corp. v. Royal Resources Corp., 427 F.Supp. 880, 882 (S.D.N.Y.1977) (“Such a claim has been said to arise where plaintiffs’ pocketbooks are situated”). This simple “last place” criterion is not chiseled in stone, but rather gives way when it is at war with state interests so that the more general Babcock principle applies. First, a careful reading of Schultz indicates that the “last event necessary test” does not displace New York interest analysis. In Schultz, the Court of Appeals still evaluated contacts which were relevant to the policies animating the conflicting rales at issue. Schultz, 65 N.Y.2d at 200, 491 N.Y.S.2d 90, 480 N.E.2d 679 (considering impact of applying forum law on New York medical creditors, estimating chances tort victims would become public wards, and weighing deterrent effect on future tort-feasors); see also Osgood, 81 N.Y.2d at 78 n. 3, 595 N.Y.S.2d 919, 612 N.E.2d 277 (“we have eschewed reliance on the fictional expectation of the parties based on mere contact with the locus of an accident, but reasonable, justifiable expectations [of the parties] are another matter”) (citations omitted). Second, the refinements expressed in the Neumeier rules, and in Schultz, were designed for simple fact scenarios. When applied to cases involving mass delicts— with many plaintiffs, complex causation questions, and transitory goods — rules designed for one-on-one disputes may require modification. Third, complex cases nominally applying the “last event necessary test” do not strictly abide by that rule. In cases like products liability and airplane crashes, New York federal courts properly use some form of Babcock “interest” analysis. See, e.g., Pescatore v. Pan American World Airways, Inc. 97 F.3d 1, 12 (2d Cir.1996) (displacing traditional rale when explosion occurred over Scotland, but “causative misconduct” occurred in either Frankfurt or London); Champlain Enterprises, Inc. v. U.S., 945 F.Supp. 468, 473-474 (N.D.N.Y.1996) (noting in products liability cases involving airplanes or automobile tires, courts consider transitory nature of product in displacing traditional rule); Campbell v. Goodyear, 1985 WL 1514 (S.D.N.Y.1985) (multi-state products liability eases involving mobile products present extraordinary circumstances that defeat application of traditional rale). a. Schultz Because most of the rales developed by the New York Court of Appeals were devised for guest statute conflicts, they involved relatively simple, localized facts— like automobile accidents — and a stark choice between competing rules. In 1985, the Court of Appeals officially extended these rules to conflicts between loss-distribution laws other than guest statutes. Schultz, 65 N.Y.2d at 199, 491 N.Y.S.2d 90, 480 N.E.2d 679. In Schultz, a scoutmaster at a New York summer retreat allegedly molested two boys from New Jersey, and subsequently threatened them at their homes. After one of the boys committed suicide in New Jersey, the parents brought a wrongful death action in New York. At issue was whether New Jersey’s charitable immunity statute would bar the action. Without applying this rale directly to the facts, the Court of Appeals acknowledged that in cases where the alleged conduct and injury occur in different states, “under traditional rules, the place of the wrong is considered to be the place where the last event necessary to make the actor liable occurred.” Schultz, 65 N.Y.2d. at 194, 491 N.Y.S.2d 90, 480 N.E.2d 679. Although this language would seem to mark a return to the vested rights analysis of the First Restatement, the Court of Appeals did not rely upon a mere recitation of the traditional rule. See AroChem International, Inc. v. Buirkle, 968 F.2d 266, 271 (2d.Cir.1992) (plaintiffs’ strict reliance on “last necessary event” test misplaced). The Court of Appeals insisted upon evaluating contacts which were relevant to the policies and interests animating the conflicting rules at issue: The first and fourth causes of action, the wrongful death of Christopher and plaintiffs own psychological and other injuries respectively, allege injuries inflicted in New Jersey. New York’s only interest in these claims are as the forum state, and as the jurisdiction where the tortious conduct underlying plaintiffs claims, the negligent assignment and failure to dismiss Coakeley occurred. Standing alone, these interests are insufficient to warrant application of New York law, at least when the relevant issue is a loss-distribution rule, rather than one regulating conduct, (citations omitted). Schultz, 65 N.Y.2d. at 195, 491 N.Y.S.2d 90, 480 N.E.2d 679. The Schultz court could simply have relied on the “last event necessary to make the actor liable” to pin-point the locus of the tort. Instead, the court moved directly into interest analysis-isolating the kinds of contacts alleged in the complaint and their bearing on each respective state. See Symeon C. Symeonides, Choice of Law in American Courts in 1994: A View “From The Trenches”, 43 Am. J. Comp. L. 1, 12 (1995). Although the application of charitable immunity to the defendants in Schultz has been seriously questioned, the court’s flexibility in determining the appropriate law suggests that in deciding a mass torts case such as the instant one it would have a pragmatic mind. See, e.g., Louise Weinberg, Symposium: Preparing For The Next Century — A New Restatement of Conflicts A Structural Revision of the Conflicts Restatement, 75 Indiana Law Journal 475 (2000) (approving of interest analysis, but describing the ultimate outcome in Schultz as “notoriously wrong”); see, e.g., Butkera v. Hudson River Sloop “Clearwater,” Inc., 300 N.J.Super. 550, 693 A.2d 520 (1997) (employing interest analysis to similar facts as Schultz, but reaching opposite result). The court of appeals for the Second Circuit followed New York’s pragmatic and flexible analysis in AroChem International, Inc. v. Buirkle. See AroChem International, 968 F.2d at 271. It ruled that Connecticut was not the “locus state” even though it was the state where the injury resulting from defamation occurred. It found the plaintiffs reliance on the “last event necessary test” misplaced because Schultz ultimately relied on interest analysis. Id. Characterizing California’s law as conduct-regulating, the court of appeals concluded that “even assuming that injuries suffered by Harris and AroChem occurred in Connecticut, California interests prevail.” Id. The Court of Appeals’s detailed but limited Neumeier rules are inappropriate in the instant case. See Neumeier, 31 N.Y.2d at 128, 286 N.E.2d at 458, 335 N.Y.S.2d at 70 (quoting Tooker v. Lopez, 24 N.Y.2d 569, 585, 249 N.E.2d 394, 404, 301 N.Y.S.2d 519, 533 (1969) (Fuld, C.J., concurring)); see also Hamilton, 47 F.Supp.2d. at 336-337 (describing the three rules under Neumeier depending on parties domicile and place of injury); Sy-meonides, Choice of Law in American Courts in 1994: A View From the Trenches, 43 Am. J. Comp. L. 1, 12 (1994). Because the Neumeier rules originally were devised for guest statute conflicts, and because in each rule the driver’s conduct and the place of the resulting injury coincide in the same state, they fail to control when there is a conflict between the place of conduct and the place of resulting injury. See Symeonides, Choice of Law in American Courts in 1994: A View From the Trenches, 43 Am. J. Comp. L. at 12 (“Thus, when Neumeier rule 2a speaks of the ‘driver’s conduct’ it presupposes that any injury which is caused by such conduct also will occur in the state of that conduct. Likewise, when rule 2b speaks of a ‘guest’ being injured in the state of his own domicile, it assumes ... the conduct ... must also have occurred in the same state”). Dispersal difficulties in the mass Tobacco cases underscore the conclusion that New York rules generally applicable to single tort situations do not control a case as complex as the present one; Babcock principles do. b. Cases Involving Mass Disasters The most difficult choice of law problems occur when mass torts plaintiffs from many jurisdictions sue a number of defendants, all of whom have different contacts with the forum state. This problem usually occurs in two contexts. The first is the mass disaster at a single location, such as the crash of a commercial airplane. Hundreds of claimants from dozens of states and countries may sue the airline, manufacturers, and other defendants. Traditional choice of law rules could theoretically simplify the analysis, applying the law of the place of the injury or the place of “causative misconduct.” The second form of the problem is even more difficult for the traditional lex loci delicti approach: Many plaintiffs are injured by a defective product or products in many locations (and the products’ producers may be operating from many places). Rule 23 is viable in such mass tort cases, but requires “caution when individual stakes are high and disparities among class members are great.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The question is whether traditional or modern conflicts of law methods apply to these massive cases under New York choice of law rules so as to make possible an aggregation of claims in a class action and timely disposition without overburdening the courts. Although they are not conclusive on these questions, New York mass disaster cases — particularly those involving complex questions of causation and transitory goods — rely upon interest analysis. In airplane crashes and products liability cases, even courts claiming to apply rigid rules do not strictly abide by them, but ultimately turn their decisions on some evaluation of the theoretical and practical aspects of the jurisdictions’ interests in the action. i. Airplane Crashes In Pescatore v. Pan American World Airways, Inc., the court of appeals for the Second Circuit analyzed the applicability of an Ohio “loss of society” damage rule to an aircraft explosion over Lockerbie, Scotland. Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 12 (2d Cir.1996). It first stated that the law where the accident occurred would “presumptively apply,” since the injured party and defendant resided in different jurisdictions, and the accident occurred in a third jurisdiction. Pescatore, 97 F.3d at 13 (citing Neumeier, 31 N.Y.2d at 128, 335 N.Y.S.2d 64, 286 N.E.2d 454). After discussing the principles underlying Babcock and the limited concern Scotland might have in imposing loss-allocating rules to aircraft passengers, the court departed from the “last event necessary” test. Pescatore, 97 F.3d at 14. It gave diminished significance to this mechanical approach, suggesting that the causal chain leading up to the explosion limited Scotland’s interest in claims by injured passengers: Although the explosion occurred over Scotland, the causative misconduct occurred in Frankfurt (where the bomb eluded Pan Am’s X-ray inspection and was placed on Flight 103), or in London (where Pan Am failed to remove or inspect the unaccompanied bag that carried the bomb). Under these circumstances, where no negligence or misconduct took place in Scotland, and where no damages [to the persons claiming through airline passengers] were incurred in Scotland, there is really no reason at all why the compensa-bility of the plaintiffs damages should be governed by Scottish law. Id. (emphasis and citations omitted) Champlain Enterprises v. U.S., 945 F.Supp. 468 (N.D.N.Y.1996), took the Pes-catore analysis a step further, applying Kansas law to a New York air crash, when the aircraft was defectively manufactured in Kansas. The court relied upon the analysis in Pescatore to find the tort occurred in Kansas because the manufacturing plant was the site of causative misconduct. The court reasoned that Kansas had the greater interest in a negligence dispute because “that state has a large stake in governing the liability of manufacturers within its borders.” Champlain, 945 F.Supp. at 473-474. Two conclusions can be drawn from these cases. First, even in single event disasters, New York choice of law does not automatically look to the lex loci delicti. Although in cases of mixed domicile, New York generally applies the law where the injury occurred, the court of appeals in Pescatore demonstrated that the site of causative misconduct also may be relevant to this inquiry. Had the causative misconduct occurred in Scotland, rather than in Frankfurt or London, Scotland would have been the “locus of the tort” and may have had enough of an interest in the action to have its law applied in a New York suit by an Ohio resident. The fact that the causative misconduct occurred elsewhere led the court to elide the “last necessary event” test, and return to a form of interest balancing, as in AroChem. Compare Pescatore v. Pan American World Airways, Inc., 97 F.3d at 14 with AroChem International v. Buirkle, 968 F.2d at 271. It assumed that either the domiciliary of the defendant (New York) or of the plaintiff (Ohio) would have the most significant interests in applying their respective wrongful death statutes. Second, assessing causative misconduct is an important component of interest inquiry involving conduct regulation. In Champlain, the court used evidence of causative misconduct in Kansas to find that Kansas, and not New York (where the airline crashed) was the “locus of the tort.” A number of commentators have suggested that place of the conduct (when injury occurs in a different state) has a greater bearing in determining what law to apply. See, e.g., Thomas E. Willging, Mass Torts Problems and Proposals, Federal Judicial Center 97 (January 1999) (“In mass torts settings, the only jurisdiction with an interest that could be recognized as applicable to a group of plaintiffs from multiple states will be the law of the place of conduct”); see also Robert A. Sedler, The Complex Litigation Project’s Proposal for Federally-Mandated Choice of Law in Mass Torts: Another Assault on State Sovereignty, 54 La. L.Rev. 1085, 1100-1102 (1994); American Law Institute: Complex Litigation: Statutory Recommendations And Analysis § 6.01(d)(4) (“In all other cases, the law of the state where the conduct causing the injury occurred governs”). ii. Products liability In the products liability line of conflicts cases, causative misconduct plays a strong role in pinpointing what law to apply when transitory goods hurt people. See Hadar v. Concordia Yacht Builders, 886 F.Supp. 1082, 1094 (S.D.N.Y.1995); Carlenstolpe v. Merck & Co., 638 F.Supp. 901, 910 (S.D.N.Y.1986). The fact patterns in these cases represent typical problems modern mass torts pose for conflicts law. Generally, the goods pass through, and are constructed in multiple jurisdictions. Moreover, plaintiffs and defendants hail from different states or countries — ultimately requiring modification of boundary restrictions on choice of law. Carlenstolpe involved a suit brought by a Swedish opera singer against a New Jersey based drug manufacturer alleging that a hepatitis vaccine, HB-Vax, gave her disabling arthritis. See Carlenstolpe, 638 F.Supp. at 901. The defendant, self described as a “worldwide organization engaged primarily in the business of discovering, developing, producing and marketing human and animal health products,” was a New Jersey corporation which developed and produced HB Vax through a Pennsylvania based subsidiary. In deciding to apply Pennsylvania law, the court followed an analysis calling for a departure from lex loci principles. Under New York law, in a situation where the place of the alleged wrongful behavior and the place of the injury are different, the place of the wrong is defined as the place of the injury. Thus, in the present case, strictly speaking, the place of the wrong is Sweden, where the plaintiff was injured, while Pennsylvania is merely the place of the tortious act. The underlying New York state rationale, however, as articulated in Schultz, for applying the law of the place of the tort where conduct regulating rules are concerned, mandate that Pennsylvania and not Swedish law apply here. Id. at 910 (citations omitted.). The Schultz rationale, the court reasoned, derived from the interest of the “locus jurisdiction ... in protecting the reasonable expectations” of the parties who relied on its law to govern their conduct. Id. This “fundamental rationale” respecting a jurisdiction’s interest in affecting behavior applied to the place of the wrong — that is, where the “defendant’s allegedly wrongful behavior has occurred rather than the place of injury.” Id. Under this interest analysis, Pennsylvania law — the site of development and manufacture of the vaccine-controlled. In Hadar, the purchaser of a yacht sued defendant when two incompatible substances, epoxy resin and peel ply, were applied to the deck, causing delamination. See Hadar, 886 F.Supp. at 1086-87. The epoxy resin was manufactured in Washington state and the peel ply in North Carolina; the substances were combined in Massachusetts; the plaintiff and yacht were in New York; the defendants were in Massachusetts, New Hampshire, Rhode Island, and North Carolina. Id. at 1098. The yacht was delivered to the plaintiff in New York in May 1989; but late in the summer of 1990, in New York, he noticed a “print through” of the hull, and had the boat repainted. Id. at 1087. In 1990, the plaintiff in New York noticed another flaw, which he characterized as delamination. The court announced that there were no “extraordinary” circumstances demanding a departure from the traditional rule. Id. at 1093-1094. It stated that is was applying the lex loci delicti. Yet, it recognized that a products liability case involving mobile products may pose extraordinary circumstances, requiring application of the place of manufacture — as in Carlenstolpe. Id. Like the air-crash cases before it, the court did not apply the law of the site of the injury — -which in this case would presumably have been New York. Instead, the court seemed to apply the law where the causative misconduct took place, that is where the two products were combined-in Massachusetts. Id. The court reasoned— without explicitly departing from traditional analysis — that Massachusetts had a greater interest than the states of manufacture of the individual products in the safety of this combined product. Massachusetts was the site where the elements were combined and also the residence of two of the defendants. It should be noted that Massachusetts might have been characterized as the place of “manufacture” of a deleterious product by combining elements made elsewhere. Babcock remains the backdrop of New York conflicts jurisprudence — binding on this court under Klaxon — when specific rules fail to accommodate modern case realities. The use of goods shipped and marketed interstate, and the possibility of extraterritorial causative misconduct, diminishes the utility of traditional emphasis courts have placed on the “place of injury” when determining the locus of a simple tort. 3. History A rule applying New York liability law in the instant case, rather than the laws of all the states individually to people injured all over the country finds support in the history of conflicts law. The past has yielded a rich accumulation of ideas, which informs present theory and practice in New York and elsewhere. W. Reese, et al., Cases and Materials on the Conflict of Latos 3 (9th ed.1990). Conflicts cases arise because law making bodies of various jurisdictions see the world differently; if the law were uniform in all jurisdictions there would be no conflict. Two salient concerns undergird conflicts analysis— concepts of sovereignty (how to respect policy determinations of different jurisdictions) and fairness (how to decide cases in ways that make good sense and do not violate the parties’ ability to prosecute and defend the action effectively). Touching briefly on how changing notions of sovereignty and fairness have affected choice of law decisions illustrates why applying New York law to some, but not all, issues in the instant case is both consistent with past approaches and appropriate. a. Antiquity What has long been sought is a lingua franca of the law that permits the courts of different states to respect each other’s persons and policies, while fairly and effectively resolving private disputes. Always there is the hovering Tower of Babel spec-tre. See Genesis 11:2-9. As Professor Juenger and his colleagues have demonstrated, a perfect formula for transmuting legal diversity into equivalence continues to elude both savants and practitioners. See, e.g., Friedrich Juenger, Choice of Law and Multistate Justice (1993). As early as fourth century B.C.E., when Greek city states were in their prime and trade was active in the eastern Mediterranean, a “private international law” emerged. Id. Rather than choose between different jurisdictional laws of individual city states, Greek courts usually applied the lex fori (law of the forum). Id at 7. Nevertheless, the Greek system concurrently was able to develop a body of common law that rested on shared principles and common custom. Id. Choice of law issues were in part alleviated because the Greeks gave greater weight to fairness concerns than to the sovereignty of the individual states. Id. at 7-8. In addition, treaties between city states created substantive rules applicable to disputes between citizens. Some cases, because of their inherent international scope, warranted the application of a single set of principles. As an Athenian speaker once asked rhetorically, “Are not the laws of justice concerning mercantile cases the same for all of us?” Id. at 7. Like the Greeks, the Romans never developed a formal system of choice of law rules. As Roman merchants traveled abroad and foreigners did business in Rome, overly formalistic local laws became too burdensome for the changing times. Special praetors were empowered to deal with litigation involving non-citizens. Relying on informed legal intuition, Greek legal principles and the notion of bona fides, the praetor created a body of norms, a ius gentium, more flexible and functional than local civil law. Id. at 8-10. In summary, the Greeks and Romans approached legal issues posed as a result of international travel, trade and contracts similarly. Instead of relying entirely on the differing laws of various jurisdictions, they created a body of law that accorded judges freedom to find fair solutions that, although local in origin, were international in import. When balancing between sovereignty interests in applying local law and producing just outcomes, Greece and Rome arguably placed more emphasis on fairness by developing a body of flexible principles governed by specialized judges. See Symeon C. Symeonides, Private International Law at the End of the 20th Century: Progress or Regress?, General Report, XVth International Congress of Comparative Law, Bristol, England (1998) (“Thus, the first instinct of the legal mind when confronted with multi-state private law dispute was one of compromise, rather than choice, ecclecticism rather than all or nothing, ‘material justice’ rather than ‘conflicts justice’ ”). In a sense, Roman world suzerainty has now been supplanted by a single integrated global world of interrelated private production and consumption, suggesting the need for an approach not unlike that of the ancients. Cf. Graeme B. Dinwoodie, A New Copyright Order: Why Material Courts Should Create Global Norms, 149 U. Pa. L.Rev. 469, 557 (2000) (conflicts principles and other techniques to achieve global norms). b.Middle Ages The beginning of conflicts of laws, as we know it, may be traced to the twelfth century. See generally Friedrich Juenger, The Need For a Comparative Approach To Choice of Law Analysis, 73 TuLL.Rev. 1309, 1319 (1999). The political realities of Upper Italy, where these efforts began, explain scholastic interest in the subject. Italian city states cherished their sovereignty and independence, each having its own judiciary and local laws. Living in medieval university towns, scholastics were acutely aware of the political importance of local government and inevitably directed their attention to the problem of whether a local statute could and should be applied to foreign based facts. The concept that multistate problems required a choice between competing laws marked a departure from Roman ius gentium. Although originally some scholars suggested a solution similar to general Roman principles — by applying the fairest and most useful law — many tackled the problem in a conceptualist, rather than a results-oriented fashion. Instead of looking for substantive solutions, academics and jurists emphasized territoriality — the personal link between a state and its citizens. Accordingly, they discussed whether local, statutes could be applied to citizens abroad, or whether foreign citizens within the region were bound by local laws. This “unilateral” approach focused directly on the content of conflicting state laws and tried to delineate spheres of operation on the basis of underlying legislative intent- See Friedrich Juenger, Choice of Law And Multistate Justice 14-15 (1993). c. English Law England’s conflicts laws have been deemed by some to reflect an arrested development. See generally id. at 22. The centralization of power in the King and the establishment of a common law limited conflicting laws inside the country once medieval courts were curtailed. See, e.g., Julius Goebel, Jr., Cases and Materials on the Development of Legal Institutions 131 (7th.Ed.1946). Early principles of venue kept international conflicts cases out of the com'ts, largely because trial required a jury of the vicinage. In time, English courts developed an interesting form of lex fori. It applied its own law to foreign disputes by adopting legal fictions. Courts simply would assume that foreign acts occurred in Englan