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A. LEx Fo~i: EXCEPTION OR RULE? O NCE a court has taken jurisdiction, it will usually apply its own law, unless the parties' own choice or an important foreign fact, such as a foreign domicile, a foreign situs, or a foreign conduct, appears to require application of another law. Most judges and lawyers will agree with this simple proposition-and yet text books, class notes, the Restatement, and even much language of the courts, would have it otherwise: foreign domicile, foreign situs, foreign conduct and other foreign "contacts" are said a priori to require application of a foreign law, unless the court can be persuaded for special reasons to turn to its own law or to the law chosen by the parties. This blatant discrepancy between the actual doing of the courts and "official" theory in the law of conflict of laws has made an awesome mystery or an object of ridicule of this subject in the eyes of many. The time has come for a stock taking and re-evaluation of accepted techniques in the light of practical needs, history and comparison.

oTH the patient and those entrusted with his care are poorly served by present rules and institutions relating to liability for medical malpractice. This is generally known and said. On the one hand, the physician, the nurse, the anesthetist, the hospital administrator and others who, in the chain process of modern medicine, in easy retrospect, appear to have committed an error of judgment or technique to the patient's detriment, may be exposed to years of emotional and financial stress or even to economic and professional disaster. Called upon to alleviate such exposure, liability insurers seeking to distribute incalculable risks, find themselves compelled to charge more or less arbitrary premiums which result in a disproportionate burden on the insured and ultimately on the public. On the other hand, the patient who seeks indemnity for an injury that he suffered somewhere in the chain process of modem medicine, sees himself compelled to assert and to prove unprovable fault. The complexity and uncertainty of the resulting litigation must cause disproportionate expense. Moreover, there is the ever growing clamor of plaintiffs' attorneys who chide the medical profession for discouraging its members from assisting plaintiffs in a "conspiracy of silence." 1 Finally, even the patient who has been successful in obtaining a judgment may remain without compensation where the defendant is insolvent and fails to carry liability insurance. Many of these problems are common to other kinds of enterprise liability and have begun to occupy legislators and scholars particularly in that area which most obviously and dramatically requires reform, the law of automobile liability. I have tried elsewhere to show that the ultimate solution in that area calls for replacing our present system of tort liability and tort insurance by a compulsory accident insurance

Four children chasing a kite drowned in a frozen pond.Y Damages were sought from a railroad company by whose admitted negligence water had been diverted to form the fatal pond. The Supreme Court of Pennsylvania denied liability because a prudent man in the defendant's place could not have "anticipated and foreseen this unfortunate happening" and because "there was no breach of duty to the children." 2 Jury verdict, majority opinion, and dissent reflect the uncertainty and t Copyright, 1951, The Regents of the University of California. Reprinted by permission. Section numbers contained in the original printing have been retained since internal references to them are made in the text. The section numbers have been placed in brackets to conform as nearly as possible to the normal publication form of the California Law Review. No other changes in the original text or footnotes have been made, and consequently many footnotes are not in accord with the form prescribed by A Uniform System of Citation (10th ed. 1958). As in the original text, footnotes for Parts I and II are numbered separately.The Editors believe it appropriate to reprint this work by Professor Ehrenzweig, since the original book has long been out of print and since once again controversy has erupted over the proper bases of tort liability. Negligence Without Fault has been a significant contribution to the law and theory of tort liability, and its relevance has not been impaired by changes in some of the case law and uniform acts which it discusses. It is only fitting that an issue dedicated to Professor Ehrenzweig should make one of his most penetrating works available to a wider audience. Some of the ideas suggested in Negligence Without Fault have been further developed in the author's later works. The reader's attention is particularly called to the following: