Choice of Law

CHOICEOFLAW
The Oxford Commentaries

onAmericanLaw
The Editorial AdvisoryBoard
The Honorable Morris S.Arnold
Senior Judge, United States Court of Appeals for the Eighth Circuit
The Honorable Drew S.DaysIII
Alfred M.Rankin Professor Emeritus and Professorial Lecturer in Law, Yale Law School,and
Former Solicitor General of the UnitedStates
James H.Carter
Senior Counsel, WilmerHale, NewYork
The Honorable Harry T.Edwards
Senior Judge, United States Court of Appeals for the District of Columbia Circuit
MichaelGreco
Of Counsel, K&L Gates LLP,and
Former President, American Bar Association
Richard H.Helmholz,
Ruth Wyatt Rosenson Distinguished Service ProfessorofLaw
The University of Chicago LawSchool
Mary KayKane
Chancellor and Dean Emerita
University of California, Hastings College of theLaw
Lance Liebman
William S.Beinecke Professor of Law, Columbia University Law School,and
Director Emeritus, American Law Institute
Kent McKeever
Director, Diamond Law Library, Columbia University LawSchool
Alberto J.Mora
Senior Fellow, Carr Center for Human Rights Policy, Harvard University and
Former General Counsel, United StatesNavy
Joseph W.Singer
Bussey Professor of Law, Harvard LawSchool
Michael Traynor
President Emeritus, American Law Institute
Stephen M.Sheppard,Chair
Dean and Charles E. Cant Distinguished Professor of Law,
St. Marys University School of Law
The Oxford Commentaries onAmericanLaw:

An Introduction to the Series
Welcome to The Oxford Commentaries on American Law. In this series, Oxford University
Press promotes the revival of the art of the American legal treatise by publishing careful, scholarly books that refine the laws of the United States, synthesizing them for the bench, for the
bar, for the student, and for the citizenwhile providing a foundation for future scholarship
and refinement.
The treatise, sometimes called the commentary or, in its elementary form, the hornbook, is
the most traditional of law books. Written for use by lawyers, judges, teachers, and students,
the treatise is a source of law in itself. From the Roman Institutes of Gaius and for Justinian,
through the great volumes on English law called the Glanville and Bracton, to the Institutes of
Sir Edward Coke and the Commentaries of Sir William Blackstone, and even to their criticisms
in the manuals and codes of Jeremy Bentham, treatises werealong with case reports and
statutory collectionsboth a repository and a source of the law.
This was true in the United States throughout the nineteenth and the twentieth centuries,
when the treatise was the dominant law book for the mastery of any given field. Great lawyers
the likes of Joseph Story, James Kent, Oliver Wendell Holmes, John Henry Wigmore, William
Prosser, and Allan Farnsworthwrote elegant books that surveyed the law from a unique perspective and that were read and quoted by judges, lawyers, and scholars. These books were
studied by generations of students, who consulted them anew throughout their legal careers.
They remain essential to understanding American law. Yet in the last decades of the 1900s, as
the law book marketplace changed, treatises became less fashionable in the U.S.
Treatises remain significant to the legal systems of Europe, Asia, and South America, as well
as in some specific fields of U.S.law. However, the general need for new ideas in U.S.law to
incorporate changes and answer new questions has hardly grown less. Thus, the need persists
for clarification in the law by careful analysts seeking to define the most useful and balanced
approaches to legal rules as applied to specific situations. The purpose of such analysis is to
organize, explain, and apply the most significant sources in a field of closely related laws, rather
than to account for every single decision or variation in it. The treatise is therefore a tool to
describe rules and principles in the law and to organize them for applications to specific situations, in answer to questions in the law that are likely to arise. These principles and rules are
derived sometimes from the statements and texts of legislators and regulators, sometimes from
the practices of judges, lawyers, and officials, sometimes from the context of older legal customs, and sometimes from the logic and justice that bind the law, as understood by the author
of the treatise. Treatise authors work within a tradition to create a new source of law, like Sir
Edward Coke said, bringing new corn from old fields.
It is my great pleasure to worknot only with the authors of these booksbut also with
a world-class staff of professionals in the English and North American offices of Oxford
University Press, and with an outstanding editorial board. Iam grateful to each of you for your
care and persistence in developing this grand initiative.
Stephen M.Sheppard
SeriesEditor
Other Works bySymeon C.Symeonides

Codifying Choice of Law Around the World: An International Comparative Analysis
(Oxford University Press 2014).
The American Choice-of-Law Revolution:Past, Present, and Future (2006).
Private International Law:United States of America (2015).
American Private International Law (2008).
Private International Law at the End of the 20th Century:Progress or Regress? (2000).
Conflict of Laws:American, Comparative, International (with Wendy C.Perdue) (3rd ed.
2012).
Conflict of Laws, (with Peter Hay & Patrick Borchers) (5th ed.2010).
CHOICE OF LAW
Symeon C.Symeonides
The Oxford Commentaries on AmericanLaw

Stephen M.Sheppard
SeriesEditor
1
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Library of Congress Cataloging-in-Publication Data
Names: Symeonides, Symeon, 1949- author.
Title: Choice of law / Symeon C. Symeonides.
Description: New York : Oxford University Press, 2016. | Series: The Oxford
commentaries on American law | Includes bibliographical references and
index.
Identifiers: LCCN 2015038271 | ISBN 9780190496722 ((hardback) : alk. paper)
Subjects: LCSH: Conflict of lawsUnited States. | Conflict of laws.
Classification: LCC KF411 .S965 2016 | DDC 342.73/042dc23 LC record available at http://lccn.loc.gov/2015038271
135798642
Printed in the United States of America on acid-free paper
Note to Readers
This publication is designed to provide accurate and authoritative information in regard to
the subject matter covered. It is based upon sources believed to be accurate and reliable and is
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(Based on the Declaration of Principles jointly adopted by a Committee of the
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You may order this or any other Oxford University Press publication
by visiting the Oxford University Press website at www.oup.com
To my Conflicts Teachers
Demetrios J.Evrigenis
Phocion Francescakis
David F.Cavers
Donald T.Trautman
and
Arthur T.vonMehren
About the Author
Symeon C. Symeonides is the Alex L. Parks Distinguished Professor of Law and Dean
Emeritus at Willamette University School of Law, in Oregon. He is an award-winning author
and renowned expert in conflicts law, having published 26 books and more than 120 articles
(in seven languages), including the widely popular annual survey of American choice-of-law
cases for the last thirty years. Reviewers have called him a conflicts giant, the most erudite
conflicts scholar in the United States, the worlds leading expert on comparative conflicts
law, and the father of codification, and his work brilliant, insightful, sophisticated and
multidimensional, engrossing, masterful, and indispensable. His work has so far received
five scholarly prizes and has been cited by the supreme courts of the United States, the United
Kingdom, and Israel (22 times). He has drafted three path-breaking choice-of-law codifications
(for Louisiana, Puerto Rico, and Oregon), participated in drafting several European Union laws
and two international conventions, and provided legislative advice to several foreign governments. He is president of the International Association of Legal Science, former president of
the American Society of Comparative Law, and member of the Institut de Droit International,
the International Academy of Comparative Law, and the Group europen de droit international
priv (GEDIP). He has taught and lectured at several American and European universities and
The Hague Academy of International Law. He holds degrees in private and public law from the
Aristotle University of Thessaloniki, an LLM and an SJD from the Harvard Law School, and
three honorary doctorates.
ix
Summary Table ofContents
List of Tables
xxxi
List of Figures, Charts, and Maps
xxxiii
Preface
xxxv
Acknowledgments
xxxvii
Abbreviations
xxxix
1. Introduction
PART ONE THE FEDERAL FRAMEWORK

2. Federalism and Choice ofLaw
15
PART TWO H
ISTORY, DOCTRINE, AND
METHODOLOGY
3. Early Choice-of-Law Doctrine and the Traditional System
45
4. The Structure of Choice-of-Law Rules and the Operation of

the Choice-of-Law Process
63
5. The Choice-of-Law Revolution:Theoretical Groundwork
93
6. The Judicial Revolution in Torts and Contracts

xi
123
xii
Summary Table of Contents
7. The Choice-of-Law Revolution Today: Methodological

Pluralism
145
PART THREE CHOICE OF LAW IN PRACTICE

8. Torts
177
9. Products Liability
273
10. Contracts
343
11. Forum Selection Clauses and Arbitration Clauses
435
12. Insurance Conflicts
493
13. Statutes of Limitation
523
14. Status and Domestic Relations
553
15. Property, Marital Property, and Successions
581
16. Conflicts between Federal Law and ForeignLaw
625
PART FOUR CONCLUSIONS

17. The Next Step
673
Appendix:List of Choice-of-Law Codifications, EU Regulations, and

Conventions
705
Table of Cases
713
Table of Statutes, Regulations, and Conventions
763
Table of Restatements
775
Index
779
Detailed Table ofContents
List of Tables
xxxi
List of Figures, Charts, and Maps
xxxiii
Preface
xxxv
Acknowledgments
xxxvii
Abbreviations
xxxix
1. Introduction
I. Scope and Coverage
II. Nomenclature
A. Conflict of Laws
B. Private International Law
2
2
III. Choice ofLaw
A. Choice of Law and Jurisdiction

B. Choosing versus Blending Laws
C. The Substantivist Method
D. Arbitration and AnationalLaw
3
3
4
5
IV. Categories of Conflicts
V. Federal and State Laws and Courts
VI. Plurilegalism in a Single Country

VII. Selected General Bibliography
xiii
9
10
Detailed Table of Contents
xiv
PART ONE THE FEDERAL FRAMEWORK

2. Federalism and Choice ofLaw
I. Introduction
II. The Division of Lawmaking Competence between the Federal
and State Governments
III. Federal Limitations on State Choice ofLaw
A. The Four Principal Constitutional Clauses
B. The Full Faith and Credit Clause
1. Text and Purpose
2. Legislative History
3. Scope
4. Full Faith and Credit to Judgments
C. The Full Faith and Credit and Due Process Clauses
1. Early Jurisprudence
2. From Interventionism to Laissez-Faire
3. Constitutional Controls of Jurisdiction and Choice ofLaw
D. Privileges and Immunities
E. Foreign Affairs
1. Federal versus State Competence
2. Executive versus Judicial Function
IV. Law Applied in Federal Courts
A. In General
B. Law Applied in Diversity Cases
1. SubstantiveLaw
2. ProceduralLaw
3. Choice ofLaw
15
15
15
17
17
18
18
19
20
20
22
22
23
28
30
31
32
35
37
37
38
38
40
41
PART TWO H
ISTORY, DOCTRINE, AND
METHODOLOGY
3. Early Choice-of-Law Doctrine and the Traditional
System
I. Introduction
45
45
II. Choice-of-Law Doctrine before the Twentieth Century

A. From Ancient Greece to Medieval Italy
B. Bartolus, Statutists, and Unilateralism
C. The Dutch Commentators and Comity
D. Wchter and Savigny:From Unilateralism to
Multilateralism
E. The Dearth of English Conflicts Doctrine
F. Early American Conflicts Law: Joseph Story
III. Joseph H.Beale and the Traditional Choice-of-Law System
A. Joseph H.Beale
B. Territoriality
C. Vested Rights
IV. The First Conflicts Restatement
A. Some of the Restatements Flaws
B. The Restatements Contributions
C. Some of the Restatements Specific Rules
1. Torts and Contracts
D. The Restatements Following
4. The Structure of Choice-of-Law Rules and the Operation

of the Choice-of-Law Process
I. Introduction
II. The Choice-of-Law Rule and Its Components
xv
45
46
47
49
50
51
52
53
53
54
55
56
56
57
58
58
59
60
63
63
63
III. Characterization
65
IV. Localization
67
V. The Application of the Designated Law and Its Exceptions

A. Substance versus Procedure
B. Renvoi
C. The Public Policy Exception
D. The Penal-Law Exception
E. The Foreign Tax-Law Exception
VI. Domicile
VII. Judicial Notice and Proof of ForeignLaw
68
68
73
78
82
85
86
87
xvi
5. The Choice-of-Law Revolution:Theoretical Groundwork

I. Introduction
II. The First Critics
A. Walter W.Cook
B. David F.Cavers
III. A Frontal Attack:Brainerd Currie
A. Anti-rulism
B. The Domestic Method
C. The Concept of Governmental Interests
D. Curries Assumptions about State Interests
E. False, True and In-Between Conflicts
F. Forum Favoritism
G. Curries Contribution
H. The Addendum of Comparative Impairment
IV. Result Selectivism:Robert A.Leflar and His Better Law
Approach
V. Functional Analyses
A. Arthur T.von Mehren and Donald T.Trautman
B. Russell Weintraubs Consequences-Based Approach
VI. Synthesis and Transition:Willis Reese and the Restatement
(Second)
93
93
94
94
96
97
97
98
98
99
100
103
103
105
106
108
108
109
111
A. SectionSix
B. The Most Significant Relationship
C. Rules
D. Presumptive Rules
E. Pointers
F. Ad Hoc Analysis
111
112
113
113
114
114
VII. Contemporary Conflicts Scholarship
115
6: The Judicial Revolution in Torts and Contracts

I. Introduction
II. The Retreat of the Lex Loci Delicti Rule
A. Babcock v.Jackson
1. Issue-by-Issue Analysis
2. Dpeage
123
123
123
124
124
125
3. The Distinction between Loss-Distribution and

Conduct-Regulation Issues
4. Policy Analysis
B. After Babcock
III. The Retreat of the Lex Loci Contractus Rule
A. Barber, Auten, and the Center of Gravity Approach
B. After Auten
IV. The Remaining Traditional States
7. The Choice-of-Law Revolution Today:Methodological

Pluralism
xvii
125
126
127
133
133
135
141
145
I. Introduction
145
II. Methodological Pluralism
145
A. Methodological Camps
B. Caveats
C. The Relative Inconsequence of Methodology
145
147
150
III. The Restatement (Second)
151
IV. Significant-Contacts Approaches
154
V. NewYork
A. Tort Conflicts
1. Neumeier
2. Schultz
3. Cooney
4. Subsequent Cases
155
155
155
156
158
160
B. Contract Conflicts
162
VI. Currie-Based Approaches
163
A. Modified Interest Analysis

B. Comparative Impairment
C. The Lex Fori Variant
VII. The Better-Law Approach
A. Early Cases:The Biases
B. Recent Cases:Eclecticism and De-emphasis of the Better-Law
Factor
VIII. Combined Modern Approaches
164
165
168
170
171
173
173
xviii
PART THREE CHOICE OF LAW IN PRACTICE

8. Torts
177
I. Introduction
177
II. The Distinction between Conduct-Regulation and

Loss-Distribution
177
A. The Origins and Meaning of the Distinction
177
1. Antecedents
2. Babcock and Schultz
3. Legislative Sanction
a. American Codifications
b. Foreign Codifications
177
179
181
181
182
4. Examples from Each Category
183
a. Conduct-Regulating Rules
b. Loss-Distributing Rules
183
184
B. The Validity of the Distinction:Separating Purpose and Effect

C. The Manageability of the Distinction:Identifying the
Primary Purpose
D. The Practical Use of the Distinction
III. Loss-Distribution Tort Conflicts
A. Introduction
B. Defining the Typical Patterns
1. The Pertinent Contacts
2. The Content of the Involved Laws
3. The Typical Fact-Law Patterns in Conflicts Involving
Two States
C. Common-Domicile Cases Arising from Torts in Another
State
184
186
188
190
190
190
190
191
192
194
1. Pattern 1:The Babcock Pattern

2. Pattern 2:The Converse-Babcock Pattern
3. Summary
4. A Common-Domicile Rule
194
196
199
200
a. A Descriptive Rule
b. Statutory and Quasi-Statutory Rules
c. Foreign Codifications
200
201
202
xix
5. Cases Analogous to Common-Domicile Cases
203
a. Parties Domiciled in States with SameLaw

b. Parties to a Preexisting Relationship
203
204
D. Split-Domicile CasesIntrastate Torts

1. Direct or True Conflicts
a. Pattern 3:Split-Domicile Cases in Which the Conduct,
the Injury and the Tortfeasors Domicile Are in a State
Whose Law Favors the Tortfeasor
b. Pattern 4:Split-Domicile Cases in Which the Conduct,
the Injury and the Victims Domicile Are in a State Whose
Law Favors the Victim
204
204
205
208
2. Inverse Conflicts or No-Interest Cases
211
a. Pattern 5:The Neumeier Pattern

b. Pattern 6:The Hurtado Pattern
c. Summary and Rule
211
214
215
E. Split-Domicile CasesCross-Border Torts
218
1. Pattern 7:Cases in Which the Conduct and the Tortfeasors

Domicile Are in a State Whose Law Favors the Tortfeasor,
while the Injury and the Victims Domicile Are in a State
Whose Law Favors the Victim
218
2. Pattern 8:Cases in Which the Conduct and the Tortfeasors
Domicile Are in a State Whose Law Favors the Victim, while
the Injury and the Victims Domicile Are in a State Whose
Law Favors the Tortfeasor
221
3. Summary and Rules
223
F. Split-Domicile Conflicts Involving Three States
G. Summary and Rules for Loss-Distribution Conflicts
IV. Conduct-Regulation Conflicts
A. Introduction
B. Generic Conduct-Regulation Conflicts
1. The Pertinent Contacts and Typical Patterns
2. Pattern 9:Conduct and Injury in Same State
3. Pattern 10:Conduct and Injury in Different States That
Prescribe the Same Standards of Conduct
4. Pattern 11:Conduct in State with Higher Standard and
Injury in State with Lower Standard of Conduct
224
227
229
229
229
229
231
237
238
xx
5. Pattern 12:Conduct in State with Lower Standard and

Injury in State with High Standard
6. Summary and Rule for Conduct-Regulation Conflicts
C. Punitive-Damage Conflicts
1. Introduction
3. Pattern 13:All Three Contacts
4. Pattern 14:State(s) of Defendants Domicile and Conduct
Impose(s) Punitive Damages
5. Pattern 15:State(s) of Conduct and Injury Impose(s)
Punitive Damages
6. Pattern 16:State(s) of Injury and Defendants Domicile
7. Pattern 17:Only the Defendants Home-State Imposes
Punitive Damages
8. Pattern 18:Only the State of Conduct Imposes Punitive
Damages
9. Pattern 19:Only the State of Injury Imposes Punitive
Damages
10. Pattern 20:None of the Above (Victims Domicile or
Domicile)
11. Summary and Rule
V. Conclusions
242
247
249
249
250
252
252
256
257
258
259
261
266
268
269
9. Products Liability
273
I. Introduction
273
A. General
B. The Pertinent Contacts
273
274
1. The List
2. Qualifications
274
275
C. The Content of the Contact-States Laws

D. Typical Patterns of Product Conflicts
II. Direct Conflicts:Cases in Which Each States Law Favors the
Local Litigant
A. Cases Applying the Pro-Defendant Law of a
Defendant-Affiliated State
278
278
279
280
xxi
B. Cases Applying the Pro-Plaintiff Law of a Plaintiff-Affiliated State 283

1. Choice Based on Three Contacts
2. Choice Based on Two Contacts
a. Plaintiff s Domicile and Injury
b. Injury and Product Acquisition
c. Plaintiff s Domicile and Product Acquisition
3. Choice Based on a Single Contact
a. Place of Injury
b. Product Acquisition
c. Plaintiff s Domicile
III. Inverse Conflicts:Cases in Which Each States Law Favors a
Litigant Affiliated with the Other State
A. Cases Applying the Pro-Plaintiff Law of a
B. Cases Applying the Pro-Defendant Law of a
Plaintiff-Affiliated State
1. Choice Based on Three Contacts
2. Choice Based on Two Contacts
a. Plaintiff s Domicile and Injury
b. Plaintiff s Domicile and Product Acquisition
c. Injury and Product Acquisition
3. Choice Based on a Single Contact
IV. Latent Injuries and the Issue of Time
V. General Observations
A. Summary
B. The Role of State Policies and Interests
C. The Significance of Contacts
D. Choice-of-Law Rules
1. Contacts-Based Rules
2. Favor Laesi Rules
10. Contracts
284
290
290
291
293
295
295
296
297
301
302
308
309
318
319
322
325
327
328
335
335
336
337
338
339
341
343
Introduction
343
Part One. Contracts without Choice-of-Law Clauses
343
xxii
I. The Traditional Approach

II. Statutory Rules
343
346
III. The Uniform Commercial Code (U.C.C)
348
IV. The CISG
349
V. The Restatement (Second)
352
A. Section188
B. Particular Contracts
C. Particular Issues
D. Application
E. Samples from the Cases
352
353
354
355
355
VI. Other Modern Approaches
358
Part Two. Contractual Choice of Law (Party Autonomy)
361
I. Introduction
A. The Principle, Its History and Universality
B. The Two Restatements
1. The First Restatements Rejection
2. The Second Restatements Endorsement
C. The Uniform Commercial Code
II. The General Scope of Party Autonomy:AFirst Look
III. Requirements and Limitations
A. The Distinction between Waivable and Non-waivable Rules
B. Basis for the Parties Choice:Substantial Relationship or
Reasonable Basis
C. Substantive Limitations:Public Policy
1. Which States Public Policy? (The Lex Limitativa)
a. Lex Fori Systems
b. Lex Causae Systems
c. Hybrid Systems
2. Which Level of Public Policy?
IV. The Choice-of-Law Agreement and Its Modalities
A. Which Law Determines Existence and Validity
1. Capacity
2. Consent and Formation
3. Form
361
361
364
364
365
366
368
369
369
370
371
372
373
374
376
378
379
379
380
381
382
B. Timing of Choice or Change

C. Multiple or Partial Choice
D. Choice of an InvalidatingLaw
V. The Scope of the Choice-of-Law Clause
A. Introduction
B. Exempted Contracts or Contractual Issues
C. Noncontractual Issues:Torts
1. Introduction
2. The CaseLaw
3. Critique
D. Procedural Issues
E. Choice of ConflictsLaw
F. Choice of Nonstate Norms
xxiii
384
386
386
388
388
389
391
391
393
399
400
405
406
VI. Party Autonomy and Presumptively Weak Parties
409
A. Introduction
B. Comparative Excursus:The Civil Law Model
C. The AmericanModel
409
410
414
1. Introduction
2. Employment Contracts
3. Consumer Contracts
4. Franchise or Distributorship Contracts
414
415
422
426
D. Conclusions
11. Forum Selection Clauses and Arbitration Clauses

I. Introduction
II. Forum Selection Clauses
A. Introduction
B. Which Law Governs Forum Selection Clauses?
1. Scenario 1:Actions Filed in the Chosen Court
2. Actions Filed in a Court Not Chosen (the Seized Forum)
a. Scenario 2:Contracts without Choice-of-Law Clauses
b. Scenario 3:Contracts with Choice-of-Law Clauses
(1) Cases Applying ForumLaw
(2) Cases Applying the ChosenLaw
(3) Distinguishing between Interpretation and
Enforceability
432
435
435
435
435
442
444
445
445
447
448
449
452
xxiv
3. Summary and Critique

C. Separability of Forum Selection Clause
III. Arbitration Clauses
A. Domestic Interstate Arbitration
1. Introduction
2. The Supreme Courts Strong Pro-Arbitration Stance
3. The Lower Courts Efforts to Level the Playing Field
a. Employment Contracts
b. Consumer Contracts
4. Separability of Arbitration Clause
B. Foreign Arbitration
1. The Supreme Courts Jurisprudence
2. Law Governing the Arbitration Agreement
a. Contractual Capacity
b. Other Issues of Formation of the Arbitration Agreement
c. Issues of Scope, Validity, and Enforceability (Other than
Arbitrability)
d. Arbitrability
e. Public Policy
3. Law Applicable in Arbitration
12. Insurance Conflicts

I. Introduction
II. Automobile Insurance
III. Commercial Liability Insurance
A. Coverage for Environmental Pollution
1. The Uniform Contract Interpretation Approach
2. The Site-Specific Approach
B. Products Liability Insurance
C. Insurability of Punitive Damages
IV. Life Insurance
13. Statutes of Limitation

I. Introduction
456
460
462
462
462
465
468
468
469
472
473
473
478
480
480
481
482
484
487
493
493
496
502
502
503
505
510
512
518
523
523
II. The Traditional American System

A. The Basic Approach
B. Legislative Exceptions:Borrowing Statutes
C. Judicial Exceptions
D. Current Status
III. Modern Approaches
A. The New UniformAct
B. New Judicial Approaches
C. The New Revision of the Restatement (Second)
1. The Text
2. Representative Cases
3. The Louisiana and Puerto Rico Codifications
IV. Summary of State Practices
V. Choice-of-Law Clauses and Statutes of Limitations
xxv
524
524
526
528
528
531
531
535
539
539
540
544
547
547
VI. Supreme Court Cases
548
VII. It Is Not an Either,Or
551
14. Status and Domestic Relations

I. Introduction
II. Marriage
A. Introduction:Divergence and Convergence
B. Validity
C. Incidents
III. Same-Sex Marriages
A. Introduction
B. The Defense of Marriage Act (DOMA) and Its
Demise
1. Vertical DOMA
2. Horizontal DOMA
3. Interstate Recognition of Same-Sex
Relationships
IV. Divorce
V. Child Support and Custody
A. Child Support
B. Child Custody
553
553
553
553
554
556
558
558
559
559
561
563
566
569
569
571
xxvi
1. Interstate Cases
2. International Cases
571
572
VI. Legitimacy and Filiation
574
VII. Adoption

I. Property
A. Immovables
B. Movables
578
581
581
581
584
1. In General
2. Stolen Movables:Antiquities or Artwork
584
585
a. The Problem and the Challenge

b. Antiquities
c. Artistic Property
d. Multiple Situses and the Conflit Mobile
e. A Proposed Rule
f. Annotations to the Rule
585
588
589
592
593
594
(1) The Starting Point: The Lex Rei Sitae Originis

(2) A Rule for True Conflicts
(3) The State of the Materially Closer Connection
(4) The Good Faith Proviso
(5) The Time Element:The Discovery Rule
(6) The Discovery Rule and Even-Handedness
(7) The Discovery Rule and the Forums Statute of
Limitation
(8) The Discovery Rule and Non-forum SubstantiveLaw
g. Methodological Comments
(1) Bridging the Common Law and Civil Law Approaches
(2) Substantive Law Solutions to Choice-of-Law Dilemmas
II. Marital Property
A. SubstantiveLaw
B. The Conflicts Problem
C. The Problem of Moving Spouses
1. From a Separate-Property State to a Community-
Property State
a. The Traditional Approach
594
595
596
597
597
598
599
599
600
600
601
602
602
603
605
605
605
b. The Pure Borrowed-Law Approach

c. The Pure Quasi-community Property Approach
d. The Louisiana Approach
2. From a Community-Property State to a Separate-Property
State
3. Recent Cases
a. Marital Property Agreements
b. Marital Property and Talaq
c. Marital Property and Taxes
d. Out-of-State Immovables
III. Successions
A. Unity or Scission of the Estate
C. Legislative Interventions
1. Testamentary Form
2. Bolder Interventions
3. Testators Choice
16. Conflicts between Federal Law and ForeignLaw

I. Introduction
II. Congressional Power and Its Limits
A. International Law Limits
B. Constitutional Limits
III. Statutes Expressly Applicable to Foreign Events or Persons
xxvii
606
606
607
608
609
609
612
612
614
615
615
617
619
619
620
621
625
625
625
625
627
628
A. Statutes Applicable to U.S. Citizens Present or Acting Abroad

B. Statutes Applicable to U.S. Citizens Injured Abroad
C. Statutes Applicable to Persons Acting under ForeignLaw
D. Statutes Applicable to the High Seas
E. Statutes Applicable to Aliens while in the United States
F. Interpretation
628
629
631
632
633
634
IV. Statutes That Are Silent or Ambiguous on Their Territorial Reach
634
A. Introduction
B. The Territorial Presumption:The Early Version
C. Foreign Ships and Their Internal Affairs
D. Bilateralism:Lauritzen and Maritime Conflicts
E. The Effects Doctrine:Foreign Conduct with Domestic Effects
634
635
636
641
644
xxviii
F. The Territorial Presumption, Again

G. The Effects Doctrine, Again
H. The Effects Doctrine Tempered by Internationalism
I. Domestic Conduct with Foreign Effects and The Headquarters
Doctrine
J. The Territorial Presumption Returns in Full Force
1. The Securities ExchangeAct
2. The Alien Tort Statute (ATS)
646
646
648
650
654
655
658
a. Sosa
b. Kiobel
c. Post-Kiobel Cases
658
660
662
V. A Few Remarks on Methodology
668
PART FOUR CONCLUSIONS

17. The Next Step
673
I. Introduction
673
A. Where AreWe?
B. The Revolutionary StatusQuo
C. The Next Step:Exit and Consolidation
D. The Medium:Option OneNational Legislation
673
673
676
677
II. Option Two:State Legislation
678
A. The Louisiana Codification
678
1. Goal, Catchphrase, and General Approach

2. The Method
3. Implementation:Balancing Certainty with Flexibility
a. Alternative-Reference Rules
b. Soft Connecting Factors
c. Escape Clauses
d. Rules and Approaches
e. Issue-by-Issue Analysis
4. Operation
B. The Puerto Rico Draft Code
678
680
681
681
682
682
683
684
686
688
C. The Oregon Codification

1. Contracts
2. Torts
a. General Rules
b. The General and Residual Approach
c. Balancing Certainty with Flexibility
III. Option Three:ANew Conflicts Restatement
A. An End and a Beginning
B. Coverage
C. Filling the Gaps and Updating the Content of the Restatement
(Second)
D. Breaking the Situs Taboo
E. Finding the Golden Medium between Certainty and Flexibility
xxix
688
688
690
690
691
693
693
693
695
696
700
700
Appendix:List of Choice-of-Law Codifications, EU Regulations,

and Conventions
705
Table ofCases
713
Table of Statutes, Regulations, and Conventions
763
775
Index
779
List ofTables
Chapter 6
Table1 Chronological Table of Departures from the Lex Loci
Delicti Rule
Table2 The 1960s
Table3 The 1970s
Table4 The 1980s
Table5 The 1990s and Later
Table6 Chronological Table of Departures from the Lex Loci
Contractus Rule
Table7 The 1960s and before
Table8 The 1970s
Table9 The 1980s
Table10 The 1990s and Later
Table11 Traditional States
136
137
138
138
139
141
Chapter 7
Table12 Alphabetical List of States and Choice-of-Law
Methodologies Followed
146
Chapter 8
Table13 Patterns in Loss-Distribution Conflicts Involving Two States
Table14 Common-Domicile Cases Arising from Torts in
Another State
Table15 Loss-Distribution Common-Domicile Conflicts
Table16 Split-Domicile CasesIntrastate TortsDirect Conflicts
xxxi
129
130
131
132
132
193
194
199
205
xxxii
Table17
Table18
Table19
Table20
Table21
List ofTables
Split-Domicile CasesIntrastate TortsInverse Conflicts

Split-Domicile CasesCross-Border Torts
Patterns in Conduct-Regulation Conflicts
Patterns in Punitive Damages Conflicts
Applicable Law in Tort Conflicts
Chapter 9
Table22 The Four Major Patterns of Product Liability Conflicts
Table23 Cases Applying the Pro-Defendant Law of a
Table24 Cases Applying the Pro-Plaintiff Law of a
Table33 Victims Choices in Product Liability Conflicts
211
218
230
252
270
279
280
284
290
291
293
302
308
319
323
325
341
Chapter 10
Table34 Lex Limitativa373
Chapter 13
Table35 States Following the Traditional Approach in Limitation
Conflicts529
Table36 Approaches to Limitation Conflicts
547
List ofFigures, Charts, andMaps
Chapter 1
Figure1 Categories of Conflicts
Chapter 4
Figure2 The Possibilities for Renvoi
74
Chapter 6
Chart 1 The Retreat of the Lex Loci Delicti and Lex Loci
Contractus Rules
Chart 2 The Revolution in Torts and Contracts
Map 1
The Revolution in Tort Conflicts
Map 2
The Revolution in Contract Conflicts
127
128
134
140
Chapter 8
Cases Applying Common-DomicileLaw
200
Chapter 9
Figure3 The Pertinent Contacts in Product Liability Conflicts
278
Chapter 10
Figure4 The Parameters of Party Autonomy
389
Chapter 11
Figure5 Law Governing Forum Selection Clauses
443
Chart 3
xxxiii
Preface
This b o ok is a c ommentary on t he l aw of choi ce of l aw, na m ely,
the middle part of conflicts law (or, as it is known elsewhere, private international law). The
intended readers are judges and attorneys, especially those who encounter conflicts cases infrequently, as well as teachers and students of conflicts law, both in the United States and abroad.
Proceeding on the premise that one must know the past to understand the present, the
book begins with the history of choice-of-law doctrine and follows its subsequent evolution
(through revolution) to the present. It then moves to methodology, which is particularly
important in this field, and then explores the case law of the last 50 years in depth and at
lengthwhat courts say, but especially what theydo.
Considering that American courts decide around 5,000 conflicts cases per year, this is not
an easy task. But it is feasible, as well as rewarding. By studying what courts do over a long
period and across state lines, one can see the forest through the trees and detect the emerging
decisional patterns. Identifying these patterns and extracting from them descriptive rules or
tentative predictions about likely outcomes is one of the books principal goals. The reader will
judge whether the book has met thatgoal.
The books central focus is on American law, but its peripheral vision is comparative. Basic
familiarity with foreign solutions always helps us improve, or at least adjust, our own solutions.
This is particularly true in the choice-of-law field, which, after all, deals with conflicts between
our laws and theirs.
On a personal note, having taught this subject for nearly four decades and having written
several books about it, Ican now muster enough courage to dedicate this book to my Conflicts
teachers, who taught me everything Iknow but, of course, are not responsible for my errors.
They are:Demetrios J.Evrigenis and Phocion Francescakis of the University of Thessaloniki;
and David F. Cavers, Donald T. Trautman, and Arthur T. von Mehren of the Harvard Law
School. Iwould like to think that they would be pleased with the result of their efforts.
Labor Day,2015
Salem,Oregon
S.C.S.
xxxv
Acknowledgments
In w ritin g t h is b o ok, I have draw n fro m m y previ ou s work for

the publishers listedbelow.
Symeon C. Symeonides, Codifying Choice of Law Around the World: An International

Comparative Analysis (Oxford-NewYork, 2014), copyright by Oxford University Press.
Symeon C.Symeonides, The American Choice-of-Law Revolution:Past, Present, and Future, The
Hague Academy of International Law monographs (Leiden, Boston, 2006), copyright by
Brill-Martinus Nijhoff Publishers.
Symeon C. Symeonides, Private International Law: United States of America, in International
Encyclopaedia of Laws (2015), copyright by Kluwer Law International BV, The Netherlands.
Peter Hay, Patrick Borchers & Symeon Symeonides, Conflict of Laws (5th ed., St. Paul, Minn.,
2010), copyright by Thomson Reuters.
Symeon C. Symeonides & Wendy C. Perdue, Conflict of Laws: American, Comparative,
International (3d ed. St. Paul, Minn., 2012), copyright by Thomson Reuters.
S.C.S.
xxxvii
Abbreviations
The foll owing works are cit ed i n a b b reviated for m as show n

in italics.
Cavers, Process:D.F. Cavers, The Choice of Law Process (1965).

Currie, Selected Essays:B.Currie, Selected Essays on the Conflict of Laws (1963).
Felix & Whitten, American Conflicts:R.B. Felix & R.U. Whitten, American Conflicts Law (6th
ed.2011).
Hay, Borchers & Symeonides, Conflict of Laws:P.Hay, P.Borchers & S.Symeonides, Conflict
of Laws (5th ed.2010).
Juenger, Multistate Justice:F.K. Juenger, Choice of Law and Multistate Justice(1993)
Restatement (First):American Law Institute, Restatement of the Law:Conflict of Laws (1934).
Restatement (Second): American Law Institute, Restatement of the Law Second: Conflict of
Laws 2d, (1971).
Restatement (Third):American Law Institute, Restatement (Third) of Foreign Relations Law of
the United States (1986).
Rome Convention: Convention 80/934/ECC on the law applicable to contractual obligations
opened for signature in Rome on 19 June 1980, OJ L 266, 9.10.1980, p.119
Rome I:Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17
June 2008 on the Law Applicable to Contractual Obligations (Rome I), [2008] OJ L177/6.
Rome II:Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11
July 2007 on the Law Applicable to Non-Contractual Obligations (Rome II), [2007] OJ L
199/40.
Symeonides & Perdue, Conflict of Laws:S.Symeonides & W.Perdue, Conflict of Laws:American,
Comparative, International (3rd ed.2012)
Symeonides, Choice-of-Law Revolution: S. Symeonides, The American Choice-
of-
Law
Revolution:Past, Present, and Future (2006).
Symeonides, Codifying Choice of Law: S. Symeonides, Codifying Choice of Law Around the
World:An International Comparative Analysis (2014).
xxxix
xl
Abbreviations
Symeonides, Cross-Border Torts: S. Symeonides, Choice of Law in Cross-Border Torts: Why

Plaintiffs Win, and Should, 61 Hastings L.J. 337 (2009).
Symeonides, Louisiana Exegesis:S.Symeonides, Louisianas New Law of Choice of Law for Tort
Conflicts:An Exegesis, 66 Tul. L.Rev. 677 (1992).
Symeonides, Oregon Torts Exegesis:S.Symeonides, Oregons New Choice-of-Law Codification
for Tort Conflicts:An Exegesis, 88 Or. L.Rev. 963 (2010).
Symeonides, Progress or Regress: S. Symeonides, Private International Law at the End of the
20th Century:Progress or Regress? (2000).
Weintraub, Commentary:R.Weintraub, Commentary on the Conflict of Laws (6th ed.2010).
one
Introduction
I . SCOPE A N D COV E R AGE
This book is a commentary on choice of lawnamely, the method or process by which one
determines which states law will govern a case that implicates the laws of more than one state
or country (multistate case).1 Choice of law is a subdivision of Conflict of Lawsnamely,
that branch of the law that aspires to provide solutions to multistate legal disputes between persons or entities (other than states as such). Adispute qualifies as multistate if one or more of its
constituent elements are connected with more than one state. These elements include the events
that give rise to the dispute, the location of its object, or the nationality, citizenship, domicile,
residence, or other affiliation of the parties. Thus, any of the following examples would fall
within the scope of this subject:a contract dispute between citizens, domiciliaries, or residents
of different states; a property dispute between residents of one state regarding assets situated
in another state; or a tort resulting from conduct occurring in one state and causing injury in
anotherstate.
Conflicts law consists of threeparts:
(1) Jurisdiction, which deals with the question of which of the involved states courts
may adjudicate the dispute;
(2) Choice of law, which deals with the question of whether the merits of the dispute will
be resolved under the substantive law of the state of adjudication (lex fori) or under
the law of another involved state;and
(3) Judgment-recognition, which deals with the requirements under which the courts of
one state will recognize and enforce a judgment rendered in anotherstate.
I I .NOM E NC L AT U R E
The name Conflict of Laws, by which this subject is known in the United States and a few
common law countries, was first used by a European writer, Ulrich Huber (16361694) in the
1. Hereafter the word state is used to denote any country or territorial subdivision of a country,
such as a state or province that has its own system of private law. Thus, the United States, a state of the
United States, a Canadian province, or France, are states within the meaning of this definition. Cases
involving the laws of more than one state are referred to hereafter as multistatecases.
i n t roduct ion
seventeenth century.2 In the rest of the world, this subject is known as Private International
Law (PIL), a term first used by an American writer, Joseph Story (17791845) in the nineteenth century.3 Each of these names is based on different and debatable assumptions about
the nature, scope, and function of this subject.
A. CONFLICT OFLAWS
The term conflict of laws seems to assume:(1)that, in all multistate cases, each involved
state has an active or passive desire, claim, or interest to apply its own law; (2)that these
claims conflict in the sense of always pulling in opposite directions; and (3) that there
exists an impartial mechanism of hierarchically superior authority for refereeing these conflicts. As we shall see later, these assumptions are questionable. For example, even accepting
the propriety of using anthropomorphic terms to describe state objectives, one can question
whether (or why) a state would be interested in the outcome of disputes between private
persons. Similarly, one can question whether such a state interest is implicated in each case
connected with that state, or whether the application of that states law indeed effectuates
that interest. Nevertheless, for better or worse, the term conflict of laws has prevailed in the
United States and a few other common law jurisdictions, and it is used throughout thisbook.
B. PRIVATE INTERNATIONALLAW
At first glance, the term private international law appears more descriptive of this subject.
The adjective international describes an important attribute of the disputes that fall within
the scope of this subjectt hey are international (or interstate) in the sense that they have contacts with more than one country or state. The adjective private serves a dual function:(1)it
confines the scope of this subject to private-law disputesnamely, disputes between private
persons other than a state in the exercise of governmental authority; and (2)it distinguishes
this subject from public international law, which regulates the conduct of sovereign states,
analogous entities, and international organizations at the internationallevel.
However, the word private also allows an inference that the disputes that comprise this
subject implicate only the interests of the disputants and not the interests of their respective
home states or the states that have other pertinent contacts with the dispute. As we shall see
later, this inference is debatable. Similarly, the word international allows the uninitiated
to infer that this law emanates from a supranational source. Reality is much different. Aside
from a few international conventions that avoid or resolve conflicts through uniform substantive or conflicts rules,4 international law provides little guidance on the subject. Thus, for
the most part, the task of resolving multistate disputes is left to individual states, subject to
certain mild restraints imposed by international law. Accordingly, private international law is
2. See U.Huber, De conflictu legum diversarum in diversis imperiis, in U. Huber, Praelectiones Juris
Romani et Hodierni (1689); infra 50.
3. See J. Story, Commentaries on the Conflict of Laws (1834); infra 5253.
4. See infra note9.
Introduction
essentially national law. Moreover, as noted later, conflicts law within the United States is de
facto and for the most part state law rather than federallaw.
At the same time, the word international reflects the initial internationalist aspirations
of this field. In entering this field, national lawmakers were supposed to act as surrogates
of a nonexistent international legislature. They should act unselfishly, impartially, and even-
handedly, treating equally foreign and forum law, as well as foreign and domestic litigants.
They should aim for international harmony and uniformity by adopting only those rules
that would be capable of internationalization through their adoption by other nations.5
Regrettably or not, this idealism survives only in some academic writings, but not in the
legislative or judicial chambers.
I I I .C HOIC E OF L AW
A. CHOICE OF LAW AND JURISDICTION
The prevailing (and nowadays unquestioned) use of the word choice to describe the middle
part of conflicts law is based on two assumptions. The first is that a courts assertion of jurisdiction to adjudicate a multistate case does not inevitably lead to the application of the forum states
substantive law on the merits. Instead, it is a matter of choice, which is controlled by the forum
states choice-of-law rules. Depending on those rules, the court will apply either the law of the
forum state or the law of another state. Indeed, with minor exceptions in its formative period,6
conflicts law accepted the premise that, in appropriate cases, the courts of one sovereign should
be prepared to apply the law of another sovereign. Thus, jurisdiction and choice of law have
become two independent inquiries, which may or may not lead to the same state. Among other
things, this means that a plaintiff who is shopping for a favorable forum should examine not
only the substantive law of the states that have jurisdiction, but also their choice-of-lawrules.
B. CHOOSING VERSUS BLENDINGLAWS

The second assumption implied by the use of the word choice is that the main, if not the
only, method for resolving disputes in cases that have contacts with more than one state is
to choose (and apply) the law of one of the involved states. This assumption is not inevitable.
Historically, one of the first recorded methods of resolving such disputes proceeded on a different basis. In the days of ancient Rome, the praetor peregrinus, a quasi-judicial official whose
jurisdiction included adjudication of disputes between Roman and non-Roman parties, did
not choose between the parties laws, but instead constructed and applied to the case at hand
a new substantive rule of decision derived from the laws of both or all involved parties.7
5. See S. Symeonides, Codifying Choice of Law around the World: An International Comparative
Analysis, 1291 (2014) [hereinafter Symeonides, Codifying Choice ofLaw].
6. See infra 51.
7. See P. Hay, P. Borchers & S. Symeonides, Conflict of Laws 910 (5th ed. 2010) [hereinafter Hay,
Borchers, & Symeonides]; F.K. Juenger, Choice of Law and Multistate Justice 810 (1993) [hereinafter
Juenger, Multistate Justice].
i n t roduct ion
Thus, the first instinct of the legal mind when confronted with a multistate private-law
dispute was one of compromise and eclecticism rather than all or nothing. Instead of choosing the law of one of the involved states, regardless of the outcome such a choice would produce for the particular case, the praetor aimed for the proper outcome by devising the most
appropriate substantive solution for the particular case, a solution drawn from the laws of the
involved states.
C. THE SUBSTANTIVISTMETHOD
This substantivist method in adjudication died out before the fall of the Roman Empire
and, by the twelfth century, when Roman law was rediscovered in Western Europe, the
idea of choosing one of the involved laws (rather than blending them) had taken hold. Thus
was born the modern conflictual or selectivist method, which has dominated the international scene ever since.8
However, the substantivist method made a modest reappearance in legislation with the
enactment of uniform substantive rules for resolving multistate problems directly, without
the intervention of choice-of-law rules. At the international level, these uniform rules originate in international conventions.9 At the interstate level, one very productive source of uniform rules is the National Conference of Commissioners of Uniform State Laws, which has
produced more than 200 uniform laws for adoption by state legislatures.10 One of these uniform laws is the Uniform Commercial Code (U.C.C.), which is now in force in all 50 states of
the United States.
8. For a discussion of these methods, see S. Symeonides, American Choice of Law at the Dawn of the
21st Century, 37 Willamette L.Rev. 1, 1116 (2001).
9.Examples of Conventions that are in force in the United States include: the United Nations
Convention on the International Sale of Goods (CISG Vienna, 1980, in force in 82 countries) (discussed infra 34952; the Convention on the Limitation Period in the International Sale of Goods
(NewYork, 1974, in force in 29 countries); and the Warsaw Convention for the Unification of Certain
Rules relating to International Carriage by Air (Warsaw, 1929, in force in 152 countries). Examples
of conventions that the United States has signed, but not ratified, include: the United Nations
Convention on the Carriage of Goods by Sea (Hamburg, 1978, the Hamburg Rules, in force in 34
countries); the United Nations Convention on Contracts for the International Carriage of Goods
Wholly or Partly by Sea (New York, 2008, the Rotterdam Rules, signed by 25 countries, but is
not yet in force); the Convention Providing a Uniform Law on the Form of an International Will
(Washington, DC, 1973, in force in 20 countries); and the United Nations Convention on Independent
Guarantees and Stand-by Letters of Credit (New York, 1995, in force in eight countries). For basic
bibliography on international uniform rules, see, e.g., R.M. Goode, H. Kronke, E. McKendrick
& J. Wool, Transnational Commercial Law: International Instruments and Commentary (2d ed.
2012); M.M. Fogt, Unification and Harmonization of International Commercial Law: Interaction or
Deharmonization? (2012); K. Boele-Woelki, Unifying and Harmonizing Substantive Law and the
Role of Conflict of Laws, 340 Recueil des cours 2714 62 (2009; D. De Carolis, Some Features of the
Harmonization of International Trade Law in the Third Millennium, 15 Unif. L.Rev. 37 (2010); M.
Heidemann, International Commercial Harmonisation and National Resistance: The Development
and Reform of Transnational Commercial Law and Its Application within National Legal Culture, 21
Eur. Bus. L.Rev. 227 (2010).
10. For an alphabetical list by subject matter, see http://w ww.uniformlaws.org/Acts.aspx.
Introduction
By eliminating the multiplicity of substantive laws, these substantive conventions and

uniform laws eliminate the possibility of conflicts of laws in the covered areas. To that extent,
the substantivist method has commensurably reduced the scope of operation of the selectivist method. However, this reduction is relatively small and, although it will continue to grow
in the future, the growth will be slow. Thus, for the foreseeable future, the selectivist method
will continue to dominate all efforts to resolve multistate conflicts oflaws.
D. ARBITRATION AND ANATIONALLAW

Finally, one should not forget the parallel universe of arbitration, which, besides being a
largely private adjudication, often entails private lawmaking, especially when the parties
authorize the arbitrators to decide ex aequo et bono.11 To the extent they draw from the laws
of the involved states, these decisions represent a modern use of the substantivist method.
In recent years, the dramatic increase in the use of arbitration by commercial actors
(eager to avoid state regulation whenever possible) has led to the emergence of what is often
referred to as the new lex mercatorianamely, a body of anational or nonstate substantive
norms for certain multistate transactions.12 International organizations such as Unidroit13
and Uncitral,14 and certain academic groups15 have produced codifications, or at least systematizations, of this privately made soft law. Although these nonstate norms are used primarily in arbitration, there is now a push to extend their use in litigation as well.16
11. Arbitration is discussed infra 46291.
12. See infra 40609. From the vast literature on this subject, see, e.g., K.P. Berger, The Creeping
Codification of the Lex Mercatoria (2d ed. 2010); F. De Ly, International Business Law and Lex Mercatoria
(1992); J. Lookofsky & K. Hertz, Transnational Litigation and Commercial Arbitration:AComparative
Analysis of American, European and International Law (3d ed. 2011); O. Toth, The Lex Mercatoria in
Theory and Practice (2015); C.R. Drahozal, Private Ordering and International Commercial Arbitration,
113 Penn St. L.Rev. 1031 (2009); C.R. Drahozal, Contracting Out of National Law:An Empirical Look
at the New Law Merchant, 80 Notre Dame L. Rev. 523 (2005); F.K. Juenger, The Lex Mercatoria and
Private International Law, 60 La. L.Rev. 1133 (2000). For a critical assessment, see S.Symeonides, Party
Autonomy and Private Law-Making in Private International Law: The Lex Mercatoria That Isnt, in
Festschrift fr Konstantinos D.Kerameus 1397 (2009).
13.For the history and role of Unidroit (full name International Institute for the Unification of
Private Law) and the instruments drafted under its auspices, see http://w ww.unidroit.org/about-
unidroit/overview. For basic bibliography, see, e.g., Unidroit, Unidroit Principles of International
Commercial Contracts (2010); M.J. Bonell, An International Restatement of Contract Law:The Unidroit
Principles of International Commercial Contracts (3d ed. 2009); A. Veneziano, The Soft Law Approach
to Unification of International Commercial Contract Law:Future Perspectives in Light of Unidroits
Experience, 58 Vill. L.Rev. 521 (2013).
14. For the history and role of Uncitral (full name United Nations Commission on International
Trade Law), the instruments drafted under its auspices, and a rich bibliography, see http://w ww.uncitral.org/uncitral/en/about_us.html.
15. See, e.g., O. Lando & H. Beale (eds.) The Principles of European Contract Law Parts Iand II (1999);
O. Lando, E. Clive, A. Prm & R. Zimmermann (eds.) Principles of European Contract Law, Part III
(2003).
16. The Hague Principles on Choice of Law for International Commercial Contracts (2015) are the first
instrument to propose such a use. See id. Art. 3.For discussion, see infra 408-09.
i n t roduct ion
I V. C AT EG OR I ES OF CON F L IC T S
The United States Constitution allocates lawmaking powers between the federal government and the constituent states by granting to the federal government enumerated powers
on matters of national concern17 and reserving to the states the remaining powers, including
the great bulk of private law.18 By establishing and preserving a plurilegal federal union, the
Constitution creates the conditions for the occurrence of four different categories of conflicts
of laws, namely, conflicts between:

(1) U.S.federal law and state law (vertical conflicts);

(2) U.S.federal law and foreign law (federal-international conflicts);
(3) the laws of states of the United States (interstate or intra-national conflicts);and
(4) the laws of states of the United States, on the one hand, and the law of foreign countries, on the other hand (state-international conflicts).
Federal-International
United States
Foreign countries
State-International
Vertical
State
Interstate
State
Interstate
State
Figure1. Categories of Conflicts.

Figure1 depicts these conflicts. The first category of conflicts is called vertical because
the federal and state laws do not stand on equal ground. For this reason, the process of resolving these conflicts is not one of choosing between state and federal law, but rather of delineating the scope of federal law. Under the Supremacy clause of the U.S. Constitution,19 once a
case is determined to fall within the scope of federal law, that law governs and displaces state
law. This volume touches on vertical conflicts only to a limited degree.20
The last three categories of conflicts may be characterized as horizontal because the
conflicting laws stand on equal footing. This includes federal law when it conflicts with foreign law. Nevertheless, as explained in Chapter 16, infra, the process of resolving conflicts
between federal law and foreign law is guided less by ordinary choice-of-law principles and
more by canons of construction unilaterally delineating the reach of federal statutes.
17. See U.S. Const. art. I 8, discussed infra 1516.
18. See U.S. Const. amend. X, reproduced infra 16.
19. See U.S. Const. art. VI, reproduced infra 1819.
20. See infra 3237, 46291.
Introduction
In recent years, American state and federal courts have decided, on the average, around
5,000 conflicts cases per year.21 This is by far a much higher number than in any other country
or even continent. The most numerous of these cases fall in the interstate conflicts category.
This book examines interstate and international conflicts from the perspective of American
law, but also periodically looks at the experiences of other nations. In this field, more than in
any other, the comparative approach is both necessary and rewarding.
V. F E DE R A L A N D S TAT E
L AWS A N D COU R T S
In theory, the resolution of all four categories of conflicts is a matter of federal law. In practice,
this is true only with regard to the first two of the above categories (vertical and federal-
international). The Constitution addresses horizontal interstate conflicts by enunciating the
obligation of each state to give Full Faith and Credit to the laws and judgments of sister
states, and by granting Congress the power to enact laws governing the manner in which each
state will discharge this obligation.22 However, Congress has exercised this power sparingly
indeed, only five times.23 Thus, by default, the power and the initiative of resolving interstate
conflicts remains with the states, subject only to mild restraints imposed by the Constitution
as interpreted by the U.S. Supreme Court. These restraints are discussed later.24
The states possess the same power with regard to international conflicts between state
and foreign law, subject to some (but not all) of the same constitutional restraints as with
interstate conflicts. For example, the Full Faith and Credit clause does not apply to foreign
laws or judgments, and the Privileges and Immunities clause does not apply to non-U.S.citizens. Moreover, in adjudicating conflicts with foreign law, state (or federal) courts may not
interfere with the federal governments conduct of foreign affairs.25 Despite the constitutional
21. For example, in 2013, Westlaw posted 5,457 conflicts cases, of which:(a)749 cases were decided by
state intermediate and supreme courts; (b)607 cases were decided by federal appellate courts (including 16 by the U.S. Supreme Court); and (c) 4,101 cases were decided by federal district courts. See
S. Symeonides, Choice of Law in the American Courts in 2013: Twenty-Seventh Annual Survey, 62
Am. J. Comp. L. 223, 225 (2014). In 2014, Westlaw posted 4,898 conflicts cases with a similar breakdown among the various categories. See S. Symeonides, Choice of Law in the American Courts in
2014:Twenty-Eighth Annual Survey, 63 Am. J.Comp. L. 299, 301 (2015). However, with very few exceptions, Westlaw does not post cases decided by state courts of first instance. Due partly to this omission,
federal cases outnumber state cases by a ratio of more than 7:1. Altogether, conflicts cases amount to
less than 2percent of all cases posted on Westlaw.
22. See U.S. Const. art. IV 1 (providing that Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings of every other State and authorizing Congress to enact
laws prescribing the Effect of such Acts and Proceeding). This clause is discussed infra 1828.
23. All five statutes are relatively short, and three of them deal with matters of family law:(1)28 U.S.C.
1738 is a general and brief implementing statute; (2) 28 U.S.C, 1738A (the Parental Kidnaping
Prevention Act) provides for recognition of custody decrees; (3)28 U.S.C, 1738B (the Full Faith and
Credit for Child Support Orders Act) provides for enforcement of child support orders; (4)28 U.S.C,
1738C (the Defense of Marriage Act [DOMA]) deals with same sex marriages; and 28 U.S.C. 1739
deals with state and territorial nonjudicial records.
24. See infra 1737.
25. See Am. Ins. Assn v.Garamendi, 539 U.S. 396 (2003), discussed infra 3234.
i n t roduct ion
restraints, which are few and far between, the resolution of most interstate and international
conflicts in the United States is a matter of state rather than federallaw.
One of the resulting consequences of the federal laws deference to state law is that, strictly
speaking, the term American conflicts law is a misnomerthere is no single American
conflicts law.26 Rather, there are as many conflicts laws in the United States as the states or
jurisdictions that constitute the United States. Today, this includes 50 states, the District of
Columbia,27 and the United States itself as a separate sovereign with its own system of federal
laws. Despite different iterations, however, these laws partake in the same legal and political
heritage and share sufficient common denominators and similarities as to constituteat least
for certain purposesa single law susceptible to meaningful treatment assuch.
Although each state has the inherent power to enact choice-of-law legislation, very few
states have exercised this power. Louisiana and Oregon are the only states to enact comprehensive choice-of-law legislationLouisiana for all subjects (1991)28 and Oregon for contract
and tort conflicts only (2001 and 2009).29 In other states, one can find choice-of-law provisions interspersed with substantive provisions in statutes dealing with insurance, successions,
matrimonial property, and other subjects, but no separate choice-of-law codes or statutes. In
contrast to much of the rest of the world, especially civil law countries that have codified their
conflicts law,30 the great bulk of American conflicts law resides in the law reports, not the statute books. It has been created judicially through the courts pronouncements in adjudicating
conflicts cases and through the operation of the doctrine of stare decisis.
Under the American system of dual sovereignty, conflicts cases can be adjudicated by
either state or federal courts. The applicable choice-of-law principles do not depend on whether
the adjudicating court is state or federal, but rather on the category to which the particular
conflict belongs. If, as described above, state choice-of-law principles govern a particular case,
then those principles govern even if a federal court adjudicates the case.31 Conversely, when a
state court encounters a conflict that is governed by federal choice-of-law principles, such as a
conflict between federal maritime law and foreign law, the state court must follow the federal
principles. Finally, because of the supremacy of the federal constitution, both state and federal
courts must be mindful of the federal constitutional restraints, even when adjudicating a case
that is otherwise governed by state choice-of-law principles.
26. To be sure, the use of the term American when referring to only one of the countries of the
American continent is also a misnomer. Nevertheless, it is used solely for the sake of brevity and in full
awareness of its over-inclusiveness.
27. The Commonwealth of Puerto Rico, which enjoys a special relationship described as free association (estado libre associado) with the United States, is also included in this study. For a discussion of this status and Puerto Rico conflicts law, see S. Symeonides, Revising Puerto Ricos Conflicts
Law:APreview, 28 Colum J.Transnatl L. 413 (1990).
28. See infra 67888.
30. As documented in Symeonides, Codifying Choice of Law, 234, during the last 50 years we have
witnessed the enactment of 94 choice-of-law codifications (or re-codifications) in 88 countries.
31. See Klaxon Co. v.Stentor Elec. Mfg. Co. Inc., 313 U.S. 487 (1941) (discussed infra 4142) (holding
that when a federal courts jurisdiction is based on the parties diversity of citizenship and the conflict
in question is of the type that is governed by state choice-of-law principles, the court must follow the
choice-of-law rules of the state in which the courtsits).
Introduction
V I . PLU R I L EG A L I SM I N A
SI NGL E COU N T RY
In an oft-quoted statement written more than four decades ago, the Supreme Court of Illinois
observed that [a]dvanced methods of distribution and other commercial activity [and]
modern methods of doing business have largely effaced the economic significance of State
lines.32 What was beginning to be true then is unquestionably true today, not only in the
United States, but also around the world. The Internet is simply the latest manifestation of
this reality.
This is not to say that state lines are totally inconsequential. As one commentator observed:
Maine has a different character than Texas, Nevada emphasizes different values than South
Carolina, and . . . Northern and Southern Californians joke about dividing the state in two
precisely because it is thought that statehood appropriately reflects value choices, and two such
different cultures are incongruously joined into a single state. 33
What is clear, however, is that state boundaries are far less important within the United
States than international boundaries are in the rest of the world. The lines dividing the United
States into more than 50 jurisdictions each with its own system of law have little effect on the
economic, political, and cultural unity of the country. It is not simply that people and goods
circulate freely and constantly throughout the country, that many people live in one state and
work in another,34 or that, as in the movies, a police car chase may begin in one state and
end abruptly in another.35 It is also that, in their everyday lives, people cross state lines with
very little awareness of doing so. Many large population centers spread across state boundaries. City names such as Texarkana, or Kansas City, Missouri, and Kansas City, Kansas,
amply illustrate this American phenomenon of economically and socially integrated greater
32. Gray v.Am. Radiator & Standard Sanitary Corp., 176 N.E.2d 761, 766 (Ill.1961).
33.L. Brilmayer, Shaping and Sharing in Democratic Theory: Towards a Political Philosophy of
Interstate Equality, 15 Fla. St. L.Rev. 389, 408 (1987).
34. See, e.g., Allstate Insurance v.Hague, 449 U.S. 302 (1981) (victim lived in Wisconsin and worked in
Minnesota); Bledsoe v.Crowley, 849 F.2d 639 (D.C. 1988)(plaintiff lived in the District of Columbia and
worked in Maryland); Foster v.Legget, 484 S.W.2d 827 (Ky. 1972)(defendant lived in Ohio but worked
in Kentucky); Cipolla v.Shaposka, 267 A.2d 854 (Pa. 1970)(plaintiff lived in Pennsylvania but attended
school in Delaware); Kaiser-Georgetown Cmty. Health Plan, Inc. v. Stutsman, 491 A.2d 502 (D.C.
1985)(plaintiff lived in Virginia but worked in the District of Columbia); Biscoe v.Arlington County,
738 F.2d 1352 (D.C. Cir.1984) (plaintiff lived in Maryland but worked in the District of Columbia).
35. See, e.g., Lommen v.City of East Grand Forks, 522 N.W.2d 148 (Minn. Ct. App.1994) (chase began
in Minnesota and ended in North Dakota, injuring a North Dakota resident); Biscoe v. Arlington
County, 738 F.2d 1352 (D.C. Cir. 1984)(chase began in Virginia and ended in the District of Columbia,
injuring a Maryland resident); Skipper v.Prince Georges Cnty., 637 F.Supp.638 (D.D.C. 1986)(chase
began in Maryland and ended in the District of Columbia, injuring a DC resident); Bays v.Jenks, 573
F.Supp.306 (W.D.Va. 1983)(chase began in West Virginia and ended in Virginia); Tribe v.Borough of
Sayre, 562 F.Supp.419 (W.D.N.Y. 1983)(chase began in Pennsylvania and ended in NewYork, injuring
a NewYork resident.
10
i n t roduct ion
metropolitan area[s]36 that defy state boundaries. Indeed, in retrospect, many state boundaries seem to have been drawn fortuitously.
This phenomenon is particularly relevant in tort conflicts. Although cross-border torts are
quite common around the world, it is doubtful that courts in other countries encounter cases
in which the tort occurs literally at the boundary line. Yet one finds numerous such cases in
the United States.37 Their frequent occurrence raises the question whether strict adherence to
territorial notions makes less sense in the United States than in the rest of theworld.
Beyond tort conflicts, the relative insignificance of interstate boundaries in the United
States explains why American courts encounter many more interstate conflicts than international conflicts and, together, many more conflicts than the courts of any other country. As
noted earlier, in recent years American courts have decided around 5,000 conflicts cases per
year. These are significant numbers that have led to the accumulation of vast judicial experience in resolving conflicts cases. Despite the inevitable differences from country to country,
the wealth of the American experience can be useful to other countries, even if one were to
assume that the American courts get it wrong as often as they get itright.
V I I . SE L EC T E D GE N E R A L
BI BL IOGR A PH Y
Extensive bibliographical references are provided throughout this book, at the beginning of each
chapter or subdivision of it. The following is a list of general works on the entire subject, or major
portions of it.
Restatements and ALI Publications: American Law Institute, Restatement of the Law: Conflict of
Laws (1934); Restatement of the Law Second:Conflict of Laws 2d (1971); Restatement (Third) of
Foreign Relations Law of the United States (1986); Complex Litigation:Statutory Recommendations
and Analysis (1994); Recognition and Enforcement of Foreign Judgments:Analysis and Proposed
Federal Statute (2006).
Treatises: Beale, J., A Treatise on the Conflict of Laws, vols. 13 (1935); Ehrenzweig, A., Private
International Law, Vol. 1, 1967, Vol. II, 1973, Vol. III (with Jayme, E.) (1977); Felix, R.& Whitten,
R., American Conflicts Law (6th ed. 2011); Hay, P., Borchers, P. & Symeonides, S., Conflict of
Laws (5th ed. 2010); Story, J., Commentaries on the Conflict of Laws, Foreign and Domestic
(5th ed. 1857); Symeonides, S., American Private International Law (2008); Symeonides, S.,
Private International Law:USA, in International Encyclopaedia of Laws (2015); Weintraub, R.,
Commentary on the Conflict of Laws (6th ed.2010).
Monographs: Brilmayer, L., Conflict of Laws (2d ed. 1995); Cavers, D., The Choice-of-Law
Process (1965); Juenger, F., Choice of Law and Multistate Justice (Special ed. 2005); Reynolds,
W. & Richman, W., The Full Faith and Credit Clause: A Reference Guide to the United States
Constitution (2005); Symeonides, S., The American Choice-of-Law Revolution: Past, Present,
36.Gaither v. Myers, 404 F.2d 216, 223 (D.C. Cir. 1968) (It is a commonplace that residents of
Maryland [and Virginia] are part of the Washington metropolitan trading area, and that District residents and businesses have an interest in the well-being of the [] citizens of [those] State[s].).
37. For a collection and brief discussion of such cases, see S. Symeonides, The American Choice-of-Law
Revolution:Past, Present, and Future 68 (2006) [hereinafter referred to as Symeonides, Choice-of-Law
Revolution].
Introduction
11
and Future (2006); Symeonides, S., Codifying Choice of Law around the World:An International
Comparative Analysis (2014).
Essay Collections: Cavers, D., The Choice of Law:Selected Essays, 19331983 (1985); Cook, W., The
Logical and Legal Bases of the Conflict of Laws (1942); Currie, B., Selected Essays on the Conflict
of Laws (1963); Hay, P., Selected Essays on Comparative Law and Conflict of Laws (2015); Juenger,
F., Selected Essays on the Conflict of Laws (2001); Shreve, G. & Buxbaum, H., A Conflict-of-
Laws Anthology (2d ed. 2012); Symeonides, S., Private International Law at the End of the 20th
Century:Progress or Regress? (2000).
Casebooks: Brilmayer, L., Goldsmith, J. & OHara, Conflict of Laws: Cases and Materials (7th ed.
2015); Felix, R., Mozingo, J.& Whitten, R., American Conflicts Law:Cases and Materials (5th ed.
2010); Hay, P., Weintraub, R.& Borchers, P., Conflict of Laws:Cases and Materials (14th ed. 2013);
Kay, H.H., Kramer, L. & Roosevelt, K., Conflict of Laws: Cases, Comments, Questions (9th ed.
2013); Little, L., Conflict of Laws:Cases, Materials, and Problems (2013); Lowenfeld, A., Conflict
of Laws:Federal, State, and International Perspectives (2002); Simson, G., Issues and Perspectives
in Conflict of Laws (5th ed. 2015); Symeonides, S.& Perdue, W.C., Conflict of Laws:American,
Comparative, International (3d ed. 2012); Twerski, A.D. & Cohen, N.B., Choice of Law:Cases and
Materials for a Concise Course on Conflict of Laws (2015); Vernon, D., Weinberg, L. Reynolds,
W.& Richman, W., Conflict of Laws:Cases, Materials and Problems (2d ed.2005).
Short Books: Borchers, P., Conflicts in a Nutshell (4th ed. 2015); Hay, P., Conflict of Laws (Black
Letter Outlines, 7th ed. 2013); Hoffheimer, M., Conflict of Laws: Examples & Explanations (2d
ed. 2013); Richman, W., Reynolds, W.& Whytock, Understanding Conflict of Laws (4th ed. 2013);
Roosevelt, K., Conflict of Laws:Concepts and Insights (2d ed. 2014); Spillenger, C., Principles of
Conflict of Laws (2d ed.2015).
PA R T O N E
THE FEDERAL
FRAMEWORK
two
Federalism and Choice

of Law
I . I N T R O DUCT I ON
The fact that the United States is a federation affects American conflicts law in several ways.
For example, unlike most other federations, the constituent states of the United States retain
the majority of lawmaking and judicial powers. Conversely, and unlike many other countries,
a large and powerful system of federal courts operates side by side with state courts in the 50
states. These and other features of American federalism make American conflicts law far more
complex than its equivalent in a unitary state. This chapter discusses the extent to which federalism affects choice of law in state and federal courts.
I I . T H E D I V I S I O N OF L AWM A KI NG
COM P E T E N C E B E T WEEN T HE F EDER A L
A N D S TAT E GOVER NM ENT S
The United States Constitution establishes the federal government as one of superior but limited
competence and retains the states as the holders of general residual competence. The first three
articles of the Constitution establish the three branches of the federal governmentlegislative
(Article I), executive (Article II), and judicial (Article III)and vest in them their respective powers. Article Idelineates the lawmaking competence of Congress by vesting it, not with
general lawmaking powers, but rather with the legislative Powers herein granted.1 Section 8
of the article provides a list of specific legislative powers in 17 clauses, including the following:
To lay and collect taxes . . . and provide for the common defence and general welfare of the
United States . . .; To regulate commerce with foreign nations, and among the several states and
with the Indian tribes; To establish an uniform rule of naturalization, and uniform laws on the
subject of bankruptcies . . .; To coin money . . .; To promote the progress of science and useful
arts, by securing for limited times to authors and inventors the exclusive right to their respective
1. U.S. Const. art. I,1.
15
The Federal Framework
16
writings and discoveries; To constitute tribunals inferior to the supreme court; To define and
punish piracies and felonies committed on the high seas, and offences against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land
and water; To raise and support armies.2
Section 8 concludes with the Necessary and Proper clause, which vests Congress with
the power to make all Laws which shall be necessary and proper for carrying into Execution
the foregoing Powers, and all other Powers vested by this Constitution in the Government
of the United States.3
Article VI of the Constitution establishes the supremacy of federal law over state law by
providing:
This Constitution, and the Laws of the United States and all Treaties made under the Authority
of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.4
Finally, the Tenth Amendment of the Constitution affirms the residual lawmaking competence
of the states by providing that The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States respectively, or to the people.5
As the above scheme indicates, the lawmaking competence of the federal government, although
superior, is much more limited than that of the states. The states retain the authority to enact or
judicially create laws on any subject, including the bulk of private law, except those subjects that
the Constitution assigns to the federal government. In some respects, the powers of the states are
even greater than the above division indicates. This is because, in interpreting the Constitution,
the Supreme Court has adopted the principle that only the actual exercise, not the availability, of
a constitutionally granted federal power can displace the residual competence of states to regulate
the same subject.6 Two examples, both relating to conflicts law, illustrate this proposition.
The first example involves the Commerce Clause, which grants Congress the power to regulate commerce with foreign nations, and among the several states and with the Indian tribes.7 On
its face, this clause grants Congress plenary powers to regulate interstate and international commerce, thereby displacing any state laws on the same subject. However, the Supreme Court has
adopted a more restrictive reading:(1)by defining interstate commerce more restrictively than
in the past; and (2)by ruling that, when Congress has not exercised its power to regulate a particular commercial activity (dormant Commerce Clause), states are free to regulate that activity
if they do not discriminate against, adversely affect, or unduly burden interstate commerce.8
2. U.S. Const. art. I, 8, cls.112.
3. U.S. Const. art. I, 8, cl.18.
4. U.S. Const. art. VI,cl.2.
5. U.S. Const. amend.X.
6. See Fla. Lime & Avocado Growers, Inc. v.Paul, 373 U.S. 132, 142 (1963). See also infra 33 (discussing
field pre-emption).
7. U.S. Const. art. I, 8,cl.3.
8. See, e.g., Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970); Bibb v. Navajo Freight Lines, Inc.,
359 U.S. 520 (1959); Kassel v. Consol. Freightways Corp., 450 U.S. 662 (1981); Bendix Autolite Corp.
v.Midwesco Enter., Inc., 486 U.S. 888 (1988); Quill Corp. v.N.D., 504 U.S. 298 (1992).
Federalism and ChoiceofLaw
17
The second example involves the Full Faith and Credit clause of Article IV of the
Constitution. The second sentence of this clause authorizes Congress to enact laws prescribing the effect in one state of the laws and judgments of another state. This inconspicuous
sentence grants Congress broad powers to enact statutes occupying the entire field of interstate
conflicts law. However, Congress has been uncharacteristically reluctant to use these powers.
In the 226years since the adoption of the Constitution, Congress enacted only five narrow and
brief statutes under the authority of this clause.9 Because of Congresss inertia, and the Supreme
Courts relative unassertiveness in requiring states to give full faith and credit to the laws (as
opposed to the judgments) of sister states,10 conflicts law remains by default a matter of state
law, even in cases adjudicated in federal courts.
I I I . F E D E R A L L I M I TAT I ONS
O N S TAT E C HOI CE OF L AW
A. THE FOUR PRINCIPAL CONSTITUTIONAL CLAUSES
Whether by accident or by design, the states are the primary actors in the choice-of-law arena.
They are, in principle, free to enunciate legislatively or judicially their choice-of-law rules (or
approaches) and to resolve interstate or international conflicts of laws without federal approval.
But in so doing, the states must remain within the outer limitations imposed by the federal
Constitution, as interpreted by the United States Supreme Court. These limitations are found
primarily in four constitutional clauses:
(1) The Full Faith and Credit and the Privileges and Immunities clauses of Article IV;11and
(2) the Due Process12 and Equal Protection13 clauses of the Fourteenth Amendment.14
9. See supra 7, note 23.

10. See infra 1830.
11. See U.S. Const., art. IV, 2. Another Privileges and Immunities clause found in the Fourteenth
Amendment prohibits states from adopting laws abridg[ing] the privileges or immunities of citizens of
the United States.
12. See U.S. Const., amend XIV (No State shall deprive any person of life, liberty, or property, without due process of law.). Asimilar clause in the Fifth Amendment binds the federal government. See U.S.
Const. Amd. V (No person shall be deprived of life, liberty, or property, without due process oflaw..
13. See U.S. Const., amend. XIV (No State shall deny to any person within its jurisdiction the equal
protection of the laws.). This clause is not discussed here because it has not, as yet, been employed to
scrutinize choice-of-law decisions.
14.Basic bibliography on this subject includes: Felix & Whitten, American Conflicts 295324; Hay,
Borchers & Symeonides, Conflict of Laws 175203; and Weintraub, Commentary 654721. In addition to
more specific sources cited elsewhere in this chapter, see L. Brilmayer & R.D. Lee, State Sovereignty and
the Two Faces of Federalism: A Comparative Study of Federal Jurisdiction and the Conflict of Laws, 60
Notre Dame L.Rev. 833 (1985); B. Currie & H. Schreter, Unconstitutional Discrimination in the Conflict
of Laws: Privileges and Immunities, 69 Yale L.J. 1323 (1960); B. Currie & H. Schreter, Unconstitutional
Discrimination in the Conflict of Laws: Equal Protection, 28 U. Chi. L. Rev. 1 (1960); B.P. Denning,
Extraterritoriality and the Dormant Commerce Clause: A Doctrinal Post-Mortem, 73 La. L. Rev. 979
(2013); A. Ellenberg, Due Process Limitations on Extraterritorial Tort Legislation, 92 Cornell L.Rev. 549
18
The first clause applies to the public acts and judgments of sister states, the second to citizens of sister states (i.e., natural persons domiciled in such states, but not corporations or
aliens), and the last two to persons, natural or juridical, domestic or foreign.
The first two clauses are phrased as affirmative commands directing states to behave in a
certain way toward sister states:States shall accord Full Faith and Credit to the public acts
and judgments of sister states, and shall accord certain privileges and immunities to the
citizens of sister states.15 Thus, these clauses are highly relevant to conflicts law, having been
designed directly to address issues affecting the horizontal relationship or coexistence of the
several states within the federalunion.
In contrast, the Due Process and Equal Protection clauses (which are phrased as negative
commands) appear, at least facially, as less relevant to conflicts law, having been designed
to address the vertical, government-to-person relationship in each state:No State shall
deprive any person, including its own citizens, of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.16
Nevertheless, for reasons explained infra, the Supreme Court recently has relied more on
the Due Process clause as the main vehicle for policing state choice-of-law decisions.
B. THE FULL FAITH AND CREDITCLAUSE

1. Text and Purpose
The Full Faith and Credit clause17 consists of two sentences, as follows:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe
(2007); J.H. Ely, Choice of Law and the States Interest in Protecting Its Own, 23 Wm. & Mary L.Rev. 173
(1981); K. Florey, State Courts, State Territory, State Power:Reflections on the Extraterritoriality Principle
in Choice of Law and Legislation, 84 Notre Dame L. Rev. 1057 (2009); S. Fruehwald, Constitutional
Constraints on State Choice of Law, 24 U. Dayton L. Rev. 39 (1988); P. Herzog, Constitutional Limits
on Choice of Law, 234 Recueil des cours 239 (1992); D. Laycock, Equal Citizens of Equal and Territorial
States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249 (1992); G.L. Neuman,
Extraterritorial Rights and Constitutional Methodology after Rasul v.Bush, 153 U. Pa. L.Rev. 2073 (2005);
M.D. Rosen, State Extraterritorial Powers Reconsidered, 85 Notre Dame L.Rev. 1133 (2010); J.M. Schmitt,
Constitutional Limitations on Extraterritorial State Power:State Regulation, Choice of Law, and Slavery, 83
Miss. L.J. 59 (2014); R. Sedler, American Federalism, State Sovereignty, and the Interest Analysis Approach
to Choice of Law, in Law and Justice in a Multistate World:Essays in Honor of Arthur T.von Mehren, 369
(J. Nafziger & S. Symeonides, eds., 2002); G. Shreve, Choice of Law and the Forgiving Constitution, 71 Ind.
L.J. 271 (1996); L. Weinberg, The Place of Trial and the Law Applied:Overhauling Constitutional Theory,
59 U. Colo. L.Rev. 67 (1988); L. Weinberg, A General Theory of Governance:Due Process and Lawmaking
Power, 54 Wm. & Mary L.Rev. 1057 (2013); L. Weinberg, Choice of Law and Minimal Scrutiny, 49 U. Chi.
L.Rev. 440 (1982).
15. U.S. Const., art.IV.
16. U.S. Const., amend.XIV.
17. For basic bibliography on the Full Faith and Credit clause, see R.H. Jackson, Full Faith and Credit:The
Lawyers Clause of the Constitution (1945); W.L. Reynolds & W.M. Richman, The Full Faith and Credit
Clause:AReference Guide to the United States Constitution (2005); B.A. Atwood, State Court Judgments
in Federal Litigation:Mapping the Contours of Full Faith and Credit, 58 Ind. L.J. 59 (1982); L. Brilmayer,
19
the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect
thereof.18
As the U.S. Supreme Courtnoted,

The very purpose of the full-faith and credit clause was to alter the status of the several states
as independent foreign sovereignties, each free to ignore obligations created under the laws or
by the judicial proceedings of the others, and to make them integral parts of a single nation
throughout which a remedy upon a just obligation might be demanded as of right, irrespective
of the state of its origin.19
2. Legislative History
The legislative history of the Full Faith and Credit clause is scarce. The somewhat peculiar
phrase full faith and credit, which originated in sixteenth-century English common law, was
also used in the American colonies, including a Massachusetts statute of 1774 that gave preclusive effect to the judgments of other American colonies. The Articles of Confederation of
1777 contained a sentence that was substantially identical to its successor: the first sentence
of the Full Faith and Credit clause of the 1787 Constitution. The second sentence of the latter
clause, which relegates to Congress the power to legislate on the specifics, was added during
the Constitutional Convention of 1787, apparently because the delegates could not agree on
the precise effect that a judgment of one state should have in the courts of another state. The
delegates did not focus on the reference to public Acts, which appears in both sentences, nor
did they discuss the scope of the delegated congressionalpower.
The first Congress exercised this power in 1790 by passing a three-sentence statute (modified slightly in 1804 and 1948). The statute specified the manner of authenticating legislative
acts, records, and judicial proceedings and provided that, so authenticated, these documents shall have the same full faith and credit in every court within the United States and its
Territories and Possessions as they have by law or usage in the courts of such State, Territory or
Possession from which they are taken.20
Credit Due Judgments and Credit Due Laws: The Respective Roles of Due Process and Full Faith and
Credit in the Interstate Context, 70 Iowa L. Rev. 95 (1984); W.W. Cook, The Powers of Congress under
the Full Faith and Credit Clause, 28 Yale L.J. 421 (1919); E.S. Corwin, The Full Faith and Credit Clause,
81 U. Pa. L.Rev. 371 (1933); D.E. Engdahl, The Classic Rule of Full Faith and Credit, 118 Yale L.J. 1584
(2009); P. Hay, Full Faith and Credit and Federalism in Choice of Law, 34 Mercer L.Rev. 709 (1983); K.H.
Nadelmann, Full Faith and Credit to Judgments and Public Acts:AHistorical Analytical Reappraisal, 56
Mich. L.Rev. 33 (1957); S.E. Sachs, Full Faith and Credit in the Early Congress, 95 Va. L.Rev. 1201 (2009);
J. M.Schmitt, A Historical Reassessment of Full Faith and Credit, 20 Geo. Mason L.Rev 485 (2013); R.U.
Whitten, The Constitutional Limitations on State Choice of Law:Full Faith and Credit, 12 Mem. St. U.L.
Rev. 1 (1981); R.U. Whitten, Full Faith and Credit for Dummies, 38 Creighton L. Rev. 465 (2005); R.U.
Whitten, The Original Understanding of the Full Faith and Credit Clause and DOMA, 32 Creighton L.Rev.
255 (1998); C.M. Yablon, Madisons Full Faith and Credit Clause:AHistorical Analysis, 33 Cardozo L.Rev.
125 (2001).
18. U.S. Const. art. IV1.
19. Milwaukee Cty. v.White Co., 296 U.S. 268, 27677 (1935).
20. 28 U.S.C. 1738 (2015) (emphasis added).
20
This statute did not do much to give content to the extremely indeterminate Full Faith
and Credit clause.21 Indeed, neither this statute, nor the clause, defines exactly when the full
faith obligation becomes operable, which proceedings it covers, which conditions must precede recognition, and which, if any, exceptions or defenses are permissible. In the absence of
another federal enactment, these questions are left to the Supreme Court to answer.
3.Scope
The Full Faith and Credit clause applies to public acts and judicial proceedings. The first
term includes the constitutional and statutory provisions of sister states. The second term
includes all civil judgments in law or equity, including tax judgments, whether rendered in
contested proceedings or by default, as long as they are final and on the merits, as the
rendering state (hereinafter F-1) defines these terms.22 The clause does not mention the common law of sister states,23 but it is generally assumed that it is included within the meaning of
records, or judicial proceedings.
The Full Faith and Credit clause requires each State to recognize the judgments of every
other State. Obviously, this excludes the judgments of foreign countries, the recognition of
which is a matter of discretion governed by principles of comity, rather than constitutional compulsion. But the quoted terms also exclude federal courts, as well as the courts of U.S.territories
or possessions. The implementing statute partially fills the gap by requiring every court within
the United States and its Territories and Possessions to recognize the judgments of every other
State, Territory or Possession.24 Thus, all of these courts, including the federal courts, must
recognize the judgments of state or territorial courts. Although the statute does not mention the
judgments of federal courts, it is not disputed that they too are entitled to recognition.
4. Full Faith and Credit toJudgments

Although judgment recognition is outside the scope of this book, a brief discussion of the
application of the Full Faith and Credit clause to judgments is helpful in understanding the
Supreme Courts philosophy about it. Indeed, the Court has aggressively used this clause as a
potent unifying instrument mandating recognition of sister state judgments, even when recognition is contrary to the strong interests of the recognizing state (hereinafter F2), or offensive
to its strong public policy.
An early and clear example of this stance is Fauntleroy v. Lum.25 Fauntleroy arose out
of a Mississippi gambling contract between Mississippi parties, which would be illegal and
21. James Madison, Federalist#42.

22. Administrative proceedings and arbitral awards (as opposed to judgments affirming them) do not
qualify. Penal judgments are not enforceable in other states, although they may be recognized for certain
purposes See Huntington v.Attrill, 146 U.S. 657 (1892).
23. See R.U. Whitten, The Constitutional Limitations on State Choice of Law:Full Faith and Credit, 12
Mem. St. U.L. Rev. 1. 5660 (1981).
24. 28 U.S.C. 1738 (2015).
25. 210 U.S. 230 (1908).
21
unenforceable in Mississippi. The plaintiff obtained a judgment in Missouri and sought

enforcement in Mississippi. The Mississippi court refused to enforce it. The U.S. Supreme Court
reversed, holding that the Full Faith and Credit clause compelled Mississippi to recognize the
judgment. The Court reasoned as follows:
[W]hether the ruling of the Missouri court . . . was right or wrong, there can be no question that
the judgment was conclusive in Missouri on the validity of the cause of action. A judgment is
conclusive as to all the media concludendi; and . . . it cannot be impeached either in or out of the
State by showing that it was based upon a mistake of law. Of course a want of jurisdiction over
either the person or the subject-matter might be shown. But as the jurisdiction of the Missouri
court is not open to dispute the judgment cannot be impeached in Mississippi even if it went
upon a misapprehension of the Mississippilaw.26
Indeed, Missouri had judicial jurisdiction (albeit tag jurisdiction),27 but it clearly lacked
legislative jurisdiction. Undoubtedly, under the choice-of-law rules of that time, Missouri
should have applied Mississippi law, and would be mandated to do so under the Supreme
Courts interpretation of the Full Faith and Credit clause with regard to sister state laws.
Instead, Missouri either ignored Mississippi law, or applied it incorrectly, and held enforceable
a Mississippi contract that was illegal in Mississippi. Nevertheless, the Supreme Court required
Mississippi to enforce the Missouri judgment.
Similarly, in Yarborough v. Yarborough,28 the Supreme Court held that the Full Faith and
Credit clause precluded South Carolina from imposing additional child support payments on
a father whose support obligations had been fixed by a Georgia lump-sum judgment. His child
later moved to South Carolina, thus generating a strong South Carolina interest in protecting
26. Id. at237.

27. To be entitled to recognition, the judgment must have been rendered by a court that had jurisdiction.
The existence of jurisdiction is determined under the standards of F-1 law, which, however, must also
conform to the federal due process requirements. If, under the above standards, the F-1 court lacks jurisdiction, the judgment is invalid in F-1. Consequently, the Full Faith and Credit clause does not require,
and the Due Process clause prevents, its recognition in other states. Thus, before recognizing a judgment,
the F-2 court is free to inquire into the jurisdiction of the F-1court.
This inquiry is precluded, however, if the defendant appeared in the F-1 proceeding and either litigated
or had the opportunity to litigate the jurisdictional issue. In such a case, the jurisdictional findings or
assumptions of the F-1 judgment become res judicata and may not be collaterally attacked in F-2. This is
true not only in cases of in personam jurisdiction, which can be conferred by consent or acquiescence,
but also in cases of in rem and status jurisdiction, as well as subject matter jurisdiction. See Baldwin
v. Iowa State Traveling Mens Assn, 283 U.S. 522 (1931); Durfee v. Duke, 375 U.S. 106 (1963); Sherrer
v.Sherrer, 334 U.S. 343 (1948); Aldrich v.Aldrich, 378 U.S. 540 (1964).
On the other hand, if the defendant did not appear in the F-1 proceeding, the jurisdictional findings
or assumptions of the F-1 court are not res judicata. Thus, the defendant, who is now a default judgment
debtor, preserves her chances to litigate in F-2 the question of whether the F-1 court had jurisdiction
under F-1 and federal law. If it turns out that the F-1 court had jurisdiction after all, the defendant will
have lost not only the jurisdictional battle, but also the opportunity to litigate the merits. Thus, the F-1
default judgment will be enforceable againsther.
28. 290 U.S. 202 (1933).
22
the child. However, the Court rejected the dissents argument that this interest was a good
reason for exempting South Carolina from its full faith and credit obligation to recognize the
Georgia judgment.29
The message from Fauntleroy and Yarborough is that the losing litigants only remedy is to
seek direct review of the judgment from the U.S. Supreme Courta collateral attack in another
state will not work. These cases indicate the Courts willingness to use the Full Faith and Credit
clause as an instrument of national uniformity weld[ing] the [previously] independent states
into a nation30 by ensuring the free and unimpeded circulation of judgments. Neither the
strong interests, nor a strong public policy, of the recognizing state are valid defenses to recognizing an otherwise valid sister-state judgment.
The reason for the Courts firm stance on this issue is that the national policy of mutual
respect that is embodied in the Full Faith and Credit clause acquires added force from the
national policy of finality that is embodied in the doctrine of res judicata and shared by all states
alike. This policy seeks to conserve judicial resources and protect party expectations by prohibiting relitigation of disputes that have been finally decided in another forum that functions under
the same guarantees of impartiality and fairness as the recognizing forum. As the Courtnoted,
It is just as important that there should be a place to end as that there should be a place to begin
litigation. After a party has his day in court, with opportunity to present his evidence and his view
of the law, a collateral attack upon the decision . . . merely retries the issue previously determined.
There is no reason to expect that the second decision will be more satisfactory than the first.31
C. THE FULL FAITH AND CREDIT

AND DUE PROCESS CLAUSES
1. Early Jurisprudence
Around the end of the nineteenth century, the Supreme Court began taking an equally assertive stance in requiring states to apply the public acts (i.e., laws) of sister states as it did
with regard to judgments, using both the Full Faith and Credit and Due Process clauses.32
29. Finally, in Thomas v. Washington Gas Light Co., 448 U.S. 261 (1980), the Court allowed a worker,
who received a workers compensation award in the state of injury, to receive a supplemental award in
the state of the employment relationship, thus appearing to create an exception to the principle established in Yarborough. Indeed, four justices thought that the interest of the latter state in protecting a
worker domiciled and employed there would justify such an exception. However, five justices disagreed.
Ultimately, the decision to allow a supplemental award was based on the exceptional nature of workers
compensation cases, and a precedent limited it only to those cases. This precedent was Indus. Commn of
Wisconsin v.McCartin, 330 U.S. 622 (1947), which allowed a supplemental award, unless the first award
or the statute on which it was based contained unmistakable language precluding a supplementalaward.
30. Johnson v.Muelberger, 340 U.S. 581, 584 (1951).
31. Stoll v.Gottlieb, 305 U.S. 165, 172 (1938).
32. Until then, the Court did not invoke the Full Faith and Credit Clause in the choice-of-law area. See
W.L. Reynolds & W.M. Richman, The Full Faith and Credit Clause:AReference Guide to the United States
Constitution 10 (2005) ([N]one of the early case law showed any notion that the provisions mentioning
public acts in either the clause or the implementing statute in any way were meant to effect choice-of-law
23
For example, in Allgeyer v.Louisiana,33 an insurance dispute arising from a contract made in
NewYork between a NewYork insurer and a Louisiana insured, the Court held that the Due
Process clause prohibited Louisiana from imposing certain obligations on the insurer.
Similarly, in NewYork Life Ins. Co. v.Dodge,34 the Court held that the Due Process clause
prohibited Missouri from applying its law to a contract between a Missouri insured and a
NewYork insurer, because the contract was technically made in NewYork.35 The Court did
not give weight to the fact that the insurer had ample contacts with Missouri and had knowingly dealt with a Missouri insured whom Missouri had an interest in protecting. Influenced by
the then-prevalent vested rights dogma, the Court thought that the lex loci contractus was not
merely a good choice-of-law rule, but also a constitutionally compelledone.
This interventionist stance continued in Bradford Electric Light Co., Inc. v. Clapper,36
which relied on the Full Faith and Credit clause. The Court held that this clause required New
Hampshire to apply Vermont law in a workers compensation dispute between a Vermont
employer and the survivors of a Vermont employee, even though the actual dispute arose out of
the employees fatal injury that occurred in New Hampshire. Again, neither New Hampshires
contacts, nor its potential interest in protecting workers injured on its territory, were relevant
considerations for theCourt.
2. From Interventionism
to Laissez-F aire
Gradually, however, the Court lost enthusiasm for the vested rights doctrine. The Court began
to back away from its interventionist reading of the two clauses and to give increasing consideration to the contacts and interests of states other than those in which the contract was
made or the injury occurred. Initially, the Court weighed the contacts and interests of the
involved states, but later on it abandoned any weighing. The cases discussed below illustrate
this movement.
In Clay v. Sun Office, Ltd.,37 the Court held that the Due Process clause did not prohibit
Florida from applying its law to protect an insured who was domiciled and suffered the loss in
Florida, even though Florida was neither the place of contracting nor the insureds domicile
at the time of the contract. Because the insurance policy provided world wide coverage to
the insured, who was free to move his domicile to any state other than the contract state, the
insurer could have anticipated the move to Florida and the occurrence of the loss there. Hence,
the application of Florida law was not arbitrary or unfair to the insurer.
questions. That idea did not surface until the end of the nineteenth century.). This stance was consistent
with the early view of the clause as a narrow evidentiary command, rather than a substantive one. See
R.U. Whitten, The Original Understanding of the Full Faith and Credit Clause and DOMA, 32 Creighton
L.Rev. 255 (1998).
33. 165 U.S. 578 (1897).
34. 246 U.S. 357 (1918).
35. For a similar decision to the same effect, see N.Y. Life Ins. Co. v.Head, 234 U.S. 149 (1914).
36. 286 U.S. 145 (1932).
37. 377 U.S. 179 (1964).
24
Similarly, in two workers compensation cases, Alaska Packers Assn v. Industrial Accident
Commission38 and Pacific Employers Insurance Co. v. Industrial Accident Commission,39 the
Court compared the contacts and interests of the state of the employment relationship, on the
one hand, and the state of the workers injury, on the other. After finding that the contacts and
interests of the two states were comparably strong, the Court held that the Full Faith and Credit
clause did not require either state to apply the law of the other state. Thus, in the first case,
California (the state of the employment relationship) was free to apply its workers compensation law to the action of a California employee injured in Alaska. In the second case, California
(the state of the injury) was also free to apply its workers compensation law to the action of a
Massachusetts worker injured in California. The Court explained its reasoning, while revealing
a certain frustration with the Full Faith and Credit clause:
To the extent that California is required to give full faith and credit to the conflicting Massachusetts
statute it must be denied the right to apply in its own courts its own statute, constitutionally
enacted in pursuance of its policy to provide compensation for employees injured in their
employment within the state. . . . We cannot say that the full faith and credit clause goes sofar.
. . . [T]he very nature of the federal union of states, to which are reserved some of the attributes of sovereignty, precludes resort to the full faith and credit clause as the means for compelling a state to substitute the statutes of other states for its own statutes dealing with a subject
matter concerning which it is competent to legislate....
Full faith and credit does not here enable one state to legislate for the other or to project
its laws across state lines so as to preclude the other from prescribing for itself the legal consequences of acts withinit.40
By the middle of the twentieth century, the Court abandoned any effort to weigh the
contacts and interests of the involved states, and instead began to ask whether the state that
applied its law had sufficient contacts and interests.41 This movement culminated in the all-
important, though not necessarily commendable, decision in Allstate Insurance Co. v.Hague.42
Hague involved an insurance dispute between Allstate, a nationwide insurer doing business
in Minnesota, and the wife of a Wisconsin insured, Mr. Hague, who was killed in Wisconsin
while driving the insured vehicle. The wife subsequently moved to Minnesota and sued the
insurer there, seeking to take advantage of Minnesotas stacking rule, which provided more
coverage than Wisconsins anti-stacking rule. Following Minnesotas better law approach,43
the Minnesota Supreme Court applied Minnesotas stacking rule. Without approving of that
38. 294 U.S. 532 (1935).
39. 306 U.S. 493 (1939).
40. Id. at 50105.
41. See, e.g., Carroll v.Lanza, 349 U.S. 408 (1955); Wells v.Simonds Abrasive Co., 345 U.S. 514 (1953).
42. 449 U.S. 302 (1981). For discussion of this case, see, for example, P. Hay, Reflections on Conflict-
of-Laws Methodology, 32 Hastings L.J. 1644 (1981); F.L. Kirgis, Jr, A Wishful Thinkers Rehearing in the
Hague Case, 10 Hofstra L. Rev. 1059 (1982); A.F. Lowenfeld, Three Might-Have-Beens: A Reaction to
the Symposium on Allstate Insurance Co. v.Hague, 10 Hofstra L.Rev. 1045 (1982); R. Sedler, Reflections
on Conflict-of-Laws Methodology, 32 Hastings L.J. 1628 (1981); L. Weinberg, Conflicts Cases and the
Problem of Relevant Time:AResponse to the Hague Symposium, 10 Hofstra L.Rev. 1023 (1981).
43. This approach is discussed infra at 10608.
25
approach, the U.S. Supreme Court affirmed, holding that the application of Minnesota law was
constitutionally permissible.
In so holding, the Court:(1)reaffirmed its previous inclination to abandon the weighing of
contacts and interests, (2)merged the Full Faith and Credit test into the Due Process test, and
(3)enunciated a new combined test for determining the constitutionality of a states choice of
its own law to multistate cases. According to thistest,
[F]or a States substantive law to be selected in a constitutionally permissible manner, that State
must have a significant contact or significant aggregation of contacts, creating state interests, such
that choice of its law is neither arbitrary nor fundamentally unfair.44
Seven justices agreed with this conflated test, but only a four-member plurality agreed that
it was satisfied in this case.45 The plurality found that Minnesota had three contacts that, in
the aggregate, satisfied thistest.
The first contact was that the deceased insured had worked in Minnesota on a commuting basis for 15 years, and Minnesota had an interest in protecting a member of its work
force. The plurality thought that the fact that the accident did not occur in Minnesota, or during
this commuting, but rather during a weekend trip inside Wisconsin, was irrelevant. The plurality noted, however, that [b]ecause Allstate was undoubtedly aware that Mr. Hague was a
Minnesota employee, it had to have anticipated that Minnesota law might apply to an accident in
which Mr. Hague was involved,46 apparently even to an accident occurring outside Minnesota.
The second contact was that Allstate was doing business in Minnesota, and thus it could
hardly claim unfamiliarity with the laws of the host jurisdiction and surprise that the state
courts might apply forum law to litigation in which the company is involved.47 Moreover,
Allstates presence in Minnesota gave Minnesota an interest in regulating the companys insurance obligations insofar as they affected both a Minnesota resident [Mrs. Hague] and a
longstanding member of Minnesotas work forceMr. Hague.48
The third contact was that Mrs. Hague moved to Minnesota after the accident, but before
filing the lawsuit, and there was no suggestion that she did so for the purpose of finding a
legal climate especially hospitable to her claim.49 This move gave Minnesota an interest in
[Mrs. Hagues] recovery, an interest which the lower court identified as full compensation for
resident accident victims to keep them off welfare rolls.50
While express[ing] no view [on] whether the first two contacts, either together or separately, would have sufficed to sustain the choice of Minnesota law,51 the plurality concluded
44. 449 U.S.at313.
45. Three justices joined Justice Brennans plurality opinion, and two justices joined Justice Powells dissenting opinion. Justice Stevens concurred in the result, but disagreed with the reasoning, and Justice
Stewart did not participate.
46. 449 U.S.at 318, fn.24.
47. Id. at 31718.
48. Id. at318.
49. Id. at319.
50. Id.
51. Id. at 320, fn.29.
26
that Minnesota had a significant aggregation of contacts with the parties and the occurrence,
creating state interests, such that application of its law was neither arbitrary nor fundamentally
unfair.52 Therefore, the choice of Minnesota law did not violate the Due Process Clause or the
Full Faith and Credit Clause.53
The three dissenting justices agreed with the pluralitys verbal formulation of a single test
for both the Full Faith and Credit and Due Process clauses, although they viewed it as consisting of two questions, one for each clause. They pointedly noted that [a]contact satisfies
the Constitution when it protects the litigants from being unfairly surprised and when the
application of the forums law reasonably further[s] a legitimate public policy of the forum
State.54 The first part of this sentence (referring to unfair surprise) asks the Due Process question, while the second part asks the Full Faith and credit question. The dissenters concluded that
the application of Minnessota law did not violate the Due Process clause because no reasonable
expectations of the parties were frustrated55 by that application. The dissenters also concluded,
however, that Minnessota did not satisfy the Full Faith and Credit clause because Minnessotas
tenuous contacts56 did not give it a legitimate interest to apply its law:Neither taken separately
nor in the aggregate do the contacts asserted by the plurality today indicate that Minnesotas
application of its substantive rule in this case will further any legitimate state interest.57
Concurring Justice Stevens disagreed with the merging of the Full Faith and Credit
clause into the Due Process clause. In his view, the constitutional limitations to state choice
of law involve two separate questions: First, does the Full Faith and Credit Clause require
Minnesota, the forum State, to apply Wisconsin law? Second, does the Due Process Clause of
the Fourteenth Amendment prevent Minnesota from applying its own law?58 The first question implicates the federal interest in ensuring that Minnesota respect the sovereignty of
the State of Wisconsin, while the second question implicates the litigants interest in a fair
adjudication of their rights.59 Justice Stevens concluded that the Full Faith and Credit clause
did not require Minnesota to apply Wisconsin law because the defendant failed to show that
Minnesotas refusal to apply Wisconsin law poses any direct or indirect threat to Wisconsins
sovereignty60 or any threat to national unity.61 He also concluded that the Due Process clause
52. Id. at 320 (emphasis added).

53. Id. at320.
54. Id. at 33536 (Powell, J., dissenting) (emphasis added).
55. Id. at 336. See also id. at 33637 (The risk insured by [Allstate] was not geographically limited.
The close proximity of [Hagues Wisconsin residence] to Minnesota, and the fact that Hague commuted
daily to Red Wing, Minn., for many years should have led the insurer to realize that there was a reasonable probability that the risk would materialize in Minnesota. Under our precedents, it is plain that
Minnesota could have applied its own law to an accident occurring within its borders. The fact that the
accident did not, in fact, occur in Minnesota is not controlling because the expectations of the litigants
before the cause of action accrues provide the pertinent perspective.).
56. Id. at337.
57. Id. at339.
58. Id. at 320 (Stevens, J., concurring).
59. Id.
60. Id. at325.
61. Id. at323.
27
did not prevent Minnesota from choosing its own law because that choice was not totally
arbitrary or fundamentally unfair.62
Justice Stevens correctly underscored the need to separate the full faith and credit question from the due process question, although he posed a rather high threshold for both clauses
(threat to sovereignty and totally arbitrary). The Courts merging of the two clausesor
actually the absorption of the Full Faith and Credit clause into the Due Process clauseis problematic, although it is understandable in light of the Courts difficulty in reconciling the positive
command of the Full Faith and Credit clause with the negative command of the Due Process
clause. The consequence of this merging is to compress the whole constitutional inquiry into one
of fairness to the defendant. When the defendant is a big multistate corporation named Allstate,
and the court chooses the law that favors the plaintiff widow, the defendants arguments about
unfairness tend to fall on unsympathetic ears. But even if such a result is affirmatively fair (as
opposed to not unfair), the inclusion of the Full Faith and Credit clause in the Constitution is
evidence that there is more to federalism than the pursuit of fairness, as laudable as that goal is.
By mothballing the Full Faith and Credit clause, the Court deprived itself of a far more appropriate and effective instrument in ensuring respect for sister state laws. The loss of such an instrument would be more visible in cases in which the choice of the forums law, though not unfair, is
improper for other reasons, such as when it undermines a national policy of uniformity.63
The laissez-faire attitude exhibited in Hague left the impression that the Court would
reverse a state choice-of-law decision only in extreme circumstances. But in Phillips Petroleum
Co. v. Shutts,64 the Court reversed a Kansas decision to apply Kansas law in a case in which
Kansas arguably had no fewer contacts than Minnesota had in Hague. Shutts was a class action
in which 97percent of the plaintiffs were domiciled outside Kansas, and 99percent of the mineral leases giving rise to their claims for interest on delayed royalty payments were on lands
located in states other than Kansas. However, the defendant oil company did substantial business in Kansas, and the Court recognized Kansass interest in regulating [defendants] conduct
in Kansas.65 Nevertheless, after reiterating the conflated and lenient test enunciated in Allstate
v.Hague, the Court held that Kansas could not constitutionally apply its law to the claims of
non-Kansan plaintiffs arising from non-Kansas leases.
Sun Oil Co. v.Wortman66 is the third case in the Hague trilogy, and the last on the topic
of full faith and credit and due process limitations on choice of law. Wortman involved essentially the same facts as Shutts, in which the Court held that Kansas did not have enough contacts to apply its substantive law. However, the issue in Wortman was whether Kansas could
apply its own statute of limitations, which allowed an action that would have been barred in
the other involved states.67 In a decision based more on history rather than logic, the Court
62. Id. at325.

63. For example, the application of the law of the state of incorporation to the internal affairs of corporations might serve such a national policy, although the choice of another states law may not violate the
Due Process clause. Cf. Order of United Commercial Travelers v.Wolfe, 331 U.S. 586 (1947).
64. 472 U.S. 797 (1985).
66. 486 U.S. 717 (1988).
67. In the converse situationnamely, when the forum has a shorter statute of limitations barring an
action that is not barred in the other statethe Court had earlier approved the application of the forums
28
invoked the traditional mechanical characterization of statutes of limitations as procedural and

answered the question in the affirmative. Writing for the Court, Justice Scalia found that the
society which adopted the Constitution did not regard statutes of limitations as substantive
provisions but rather as procedural restrictions fashioned by each jurisdiction for its own
courts.68 He reasoned that [s]ince the procedural rules of its courts are surely matters on
which a State is competent to legislate, it follows that a State may apply its own procedural
rules to actions litigated in its courts,69 even if it lacks the contacts necessary for applying its
substantive law to the merits.
Despite its conclusory reasoning, Wortman reaffirms the proposition that, on truly procedural issues, a state is free to apply its own law. This freedom, however, is not unlimited. For
example, a state may not, through procedural laws or otherwise, refuse to provide a forum to
causes of action solely on the ground that they arise under the laws of sister states, nor may it
interpose undue procedural obstacles to the filing or prosecution of such actions in its courts.70
Such action would be an indirect violation of the Full Faith and Credit clause, and, depending
on the specifics, of other constitutional limitations as well. Also, a state may not keep litigation
at home by preventing other states from providing a forum for otherwise transitory actions
arising under its laws.71
3. Constitutional Controls ofJurisdiction

and ChoiceofLaw
As the above review of the cases indicates, the Supreme Court has moved from an interventionist stance at the beginning of the twentieth century to a laissez-faire stance at the end of
the century. Perhaps it is not a coincidence that at the beginning of the century there was a
universal consensus around the vested rights doctrine, and that the consensus disappeared by
the end of the century, primarily because of the choice-of-law revolution of the 1960s.72 At the
beginning of the century, a state that deviated from the vested right doctrine stood out as doing
something out of the ordinary, thus evoking the Supreme Courts attention and intervention. In
contrast, toward the end of the century, the wide divergence of opinion brought by the revolution made it difficult for the Court to pick any one opinion as the right one, much less to
accord it constitutional sanction.
The Court may have also concluded that, in light of its limited resources, it would be more
efficient to police state action in the interstate arena by tightening the jurisdictional rules than
by closely scrutinizing choice-of-law decisions. The Court began this tightening in its seminal
shorter statute. See Wells v.Simonds Abrasive Co., 345 U.S. 514 (1953). The result in Wells is not problematic because, even when it lacks sufficient contacts, the forum always has a genuine procedural interest in
applying its shorter statute of limitations because such a shorter statute relieves the forums courts from
the burden of hearing old claims.
68. Wortman, 486 U.S.at726.
69. Id. Wortman is discussed again infra at 54851.
70. See Hughes v.Fetter, 341 U.S. 609 (1951); Broderick v.Rosner, 294 U.S. 629 (1935).
71. See Tenn. Coal, Iron & R.R. Co. v.George, 233 U.S. 354 (1914); Crider v.Zurich Ins. Co., 380 U.S.
39 (1965).
72. See infra 123 et seq.
29
case International Shoe Co. v. Washington,73 which held that, in order to assert in personam
jurisdiction against a defendant, a state must have sufficient minimum contacts so that adjudicating a claim against that defendant would not offend traditional notions of fair play and
substantial justice.74 The Court continued in this vein in Shaffer v.Heitner,75 which outlawed
certain types of quasi in rem jurisdiction, and later in Goodyear Dunlop Tires Operations,
S.A.v.Brown,76 which significantly narrowed the scope of general jurisdiction against corporations. Through these rulings, the Court sought to ensure that a state would not assert jurisdiction, unless it has the requisite minimum contacts with the case. Consequently, the Court
could expect that in the majority of cases, these same contacts would also suffice constitutionally to sustain the application of the forums substantivelaw.
Admittedly, in many cases, the same contacts will satisfy both the minimum contacts test
of International Shoe and the significant contacts test of Hague. But this does not mean that
the two tests are identical. In fact, even setting aside the Full Faith and Credit clause, and looking at the Hague test as one based exclusively on the Due Process clause and its preoccupation
with protecting the defendant from unfair surprise,77 the Hague test is still analytically separate
from the jurisdictional test. The jurisdictional test asks whether the defendants contacts with
the forum were such that subjecting him to litigation in that state would not be unfair. The
Hague test asks whether the defendants contacts with the forum were such that the application
of the forums substantive law would be neither arbitrary nor fundamentally unfair.78 In many
cases, the same contacts would meet both tests, but not in all. For example, the defendants consent or acquiescence to jurisdiction satisfies the jurisdictional test, but, in the absence of other
contacts, it does not satisfy the Hague test. Similarly, if tag jurisdiction still empowers a court to
hear a case,79 this basis alone does not empowermuch less justifythe court to apply its own
law. In a few cases, the converse may also be true. For example, a valid choice-of-law clause
73. 326 U.S. 310 (1945).
74. Id. at316.
75. 433 U.S. 186 (1977) (reiterating that all assertions of jurisdiction must comply with the minimum
contacts standard of International Shoe, and holding that, in the absence of other contacts, the mere presence of the defendants property in the forum state was not a constitutionally permissible jurisdictional
basis for adjudicating claims unrelated to that property).
76. 131 S.Ct. 2846 (2011) (significantly narrowing the scope of general jurisdiction against corporations
on the basis of doing business in the forum state by requiring that the corporations activities in that
state must be so continuous and systematic as to render [it] essentially at home in the forum State. Id.
at 2851). See also Daimler AG v.Bauman, 134 S.Ct. 746 (2014) (accord). In J. McIntyre Machinery, Ltd.
v.Nicastro, 131 S.Ct. 2780 (2011), which involved specific jurisdiction, the Court held that, in the absence
of additional contacts, the occurrence of the injury in the forum state was not a constitutionally permissible basis for jurisdiction against an out-of-state tortfeasor.
77. Of course, the Hague test does not focus exclusively on the defendant. In fact, two of the three contacts the Court found significant were plaintiff-affiliating contacts.
78. Allstate Ins. Co. v.Hague, 449 U.S. 302 (1981).
79.In Burnham v.Superior Court, 495 U.S. 604 (1990), the Court upheld tag jurisdiction in the case of a
New Jersey defendant, who was served with process in California while visiting his children there, in a suit
by his wife seeking divorce and incidental relief. The eight justices who participated in the decision split
evenly on the reasoning, with half of them finding tag jurisdiction in and of itself constitutional, and the
other half finding that, in the particular circumstances, including the defendants voluntary and planned
visit to California, the assertion of jurisdiction by California passed muster under InternationalShoe.
30
satisfies the Hague test and, together with other contacts, it contributes to satisfying the jurisdictional test.80 However, a choice-of-law clause alone may not satisfy the jurisdictionaltest.
Similarly, the Hague test is different from the choice-of-law inquiry. The Hague test determines whether the application of a states law is constitutionally permissible, not whether it is
appropriate from a choice-of-law perspective. The Hague case itself is a good example of this
difference. The Minnesota Supreme Court employed Professor Leflars better-law approach
in choosing Minnesota law.81 The U.S. Supreme Court held that the choice of that law was
constitutionally permissible, even if it was otherwise ill-advised. As the plurality opinionnoted,
It is not for this Court to say whether the choice-of-law analysis suggested by Professor Leflar
is to be preferred or whether we would make the same choice-of-law decision if sitting as
the Minnesota Supreme Court. Our sole function is to determine whether the Minnesota
Supreme Courts choice of its own substantive law in this case exceeded federal constitutional
limitations.82
D. PRIVILEGES AND IMMUNITIES

The Privileges and Immunities clause of Article IV provides that a state of the United States
must grant to citizens of sister states all the Privileges and Immunities it grants to its own
citizens. The clause applies to citizens (i.e., domiciliaries of sister states), but it does not apply
to aliens or to corporations.83 Also, the clause does not protect all rights, but only so-called
fundamental rights. The Court determines whether a right is fundamental by assessing
its importance to the individual, but rather its importance to the federal unionspecifically
in light of the purpose of this clause, which was to fuse into one Nation a collection of independent, sovereign States.84 The Court held that it is [only] with respect to those privileges
and immunities bearing on the vitality of the Nation as a single entity that a State must
80. See Burger King Corp. v.Rudzewicz, 471 U.S. 462 (1985).
81. Leflars approach is discussed infra at 10608.
82. Allstate Ins. Co. v.Hague, 449 U.S.at 307. Justice Stevens concurred:
Although I regard the Minnesota courts decision to apply forum law as unsound as a matter of
conflicts law, . . . I concur in the pluralitys judgment. It is not this Courts function to establish
and impose upon state courts a federal choice-of-law rule, nor is it our function to ensure that state
courts correctly apply whatever choice-of-law rules they have themselves adopted. Our authority
may be exercised in the choice-of-law area only to prevent a violation of the Full Faith and Credit or
the Due Process Clause.
Id. at 33132 (Stevens, J., concurring). See also id. at 323 ([T]he fact that a choice-of-law decision may
be unsound as a matter of conflicts law does not necessarily implicate the federal concerns embodied in
the Full Faith and Credit Clause.).
83. See Hemphill v.Orloff, 277 U.S. 537, 54850 (1928); Blake v.McClung, 172 U.S. 239 (1898). However,
discrimination against out-of-state corporations may violate the Equal Protection clause, see Metropolitan
Life Ins. Co. v.Ward, 470 U.S. 869 (1985), or the Commerce clause, see Bendix Autolite Corp. v.Midwesco
Enterprises, Inc., 486 U.S. 888 (1988). Indeed, the Court has held that discrimination against interstate
commerce is virtually per se invalid. Brown-Forman Distillers Corp. v.N.Y. State Liquor Auth., 476 U.S.
573, 579 (1986).
84. Sup. Ct. of N.H.v.Piper, 470 U.S. 274, 279 (1985).
31
accord residents and nonresidents equal treatment.85 As another court put it, this clause protects those privileges and immunities which are, in their nature, fundamental; which belong,
of right, to the citizens of all free governments; and which have, at all times, been enjoyed by
the citizens of the several states which compose this Union.86
Moreover, even when the right in question qualifies as fundamental, the clause does not
prohibit all differences in the treatment afforded residents and nonresidents. As the Court
explained:
The Clause does not preclude discrimination against nonresidents where (i)there is a substantial
reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents
bears a substantial relationship to the States objective.87
The Supreme Court has held that the clause protects access to the states courts, the right to
own private property, and the right to engage in private employment or commercial activity;
but it does not protect recreational activity, such as sport hunting.88 The Court has struck down
under the Privileges and Immunities clause:a New Hampshire law limiting admission to the
bar to New Hampshire residents;89 the Alaska Hire Act, which gave employment preference to
Alaska residents over nonresidents for jobs arising out of oil and gas leases;90 a South Carolina
law that required a license fee of 25 US dollars (USD) for shrimp boats owned by residents
and 2,500 USD for such boats owned by nonresidents;91 a Georgia statute permitting only residents to secure abortions;92 and a New Hampshire provision imposing an income tax on New
Hampshire-derived income of nonresidents, but exempting similar income of residents.93
E. FOREIGN AFFAIRS
The Constitution designates the president as commander-in-chief; places within his/her executive power the conduct of diplomacy, including the power to negotiate treaties;94 and grants
Congress power to regulate Commerce with foreign Nations, as well as a panoply of financial
and war powers to support the conduct of foreign policy.95 The Constitution also expressly
prohibits states from enter[ing] into any Treaty, Alliance, or Confederation Agreement or
Compact with another Power or engag[ing] in War.96 Thus, there is no question that the
85. Id.
86. Corfield v.Coryell, 6 F.Cas. 546, 551 (E.D. Pa.1823).
87. Piper, 470 U.S. 274, 284 (1985).
88. See Baldwin v.Fish & Game Commn of Mont., 436 U.S. 371, 388 (1978).
89. Piper, 470 U.S. 274 (1985).
90. Hicklin v.Orbeck, 437 U.S. 518 (1978).
91. Toomer v.Witsell, 334 U.S. 385 (1948).
92. Doe v.Bolton, 410 U.S. 179 (1973).
93. Austin v.N.H., 420 U.S. 656 (1975).
94. U.S. Const. art. II, 2.The same provision also vests the Senate with the power of advice and consent
to treaties and the appointment of ambassadors.
32
conduct of foreign affairs is a federal rather than a state function, and primarily an executive
rather than a judicial function. This division of competence means, inter alia, that:(1)states
may notby executive, legislative or judicial actionintrude into the federal governments
conduct of foreign affairs; and (2)courtsstate or federalmay not interfere with the federal
executives conduct of foreign affairs.
1. Federal versus State Competence

The two major Supreme Court cases involving the federal versus state division are Zschernig
v.Miller97 and American Insurance Assn v.Garamendi.98 In Zschernig, the Court struck down an
Oregon statute on a subject (inheritance) that was entirely within the states legislative competence,99 because of the possibility that (in the process of applying it) the state could intrude into
the field of foreign affairs, which the Constitution entrusts to the president and the Congress.100
The statute was one of several reciprocity statutes enacted during the Cold War. It provided
that nonresident aliens could not inherit Oregon property, unless their own country permitted
Americans to inherit property in that country on equal footing with its own citizens and to
export the money, and permitted its citizens to inherit Oregon property without confiscating
the proceeds. In the Courts view, the problem with the statute was not so much its substance,101
but rather the possibility that in its application judges might employ undiplomatic rhetoric
that could affect foreign relations. The Court wrote that, as applied, the statute could make
unavoidable judicial criticism of nations established on a more authoritarian basis than our
own [and could] affect the power of the central government to deal with those problems.102
97. 389 U.S. 429 (1968).

98. 539 U.S. 396 (2003). Other important cases include:United States v.Belmont, 301 U.S. 324 (1937);
Hines v. Davidowitz, 312 U.S. 52 (1941); United States v. Pink, 315 U.S. 203 (1942); Dames & Moore
v.Regan, 453 U.S. 654 (1981); and Crosby v.Natl. Foreign Trade Council, 530 U.S. 363 (2000).
99. In other cases, the Court has held that the federal governments treaty power may extend into matters
that the Tenth Amendment reserves to the lawmaking competence of states. See Missouri v.Holland, 252
U.S. 416 (1920). For example, in Hauenstein v.Lynham, 100 U.S. (10 Otto) 483 (1879), the Court upheld
an 1850 SwissU.S.treaty on inheritance against a Tenth Amendment challenge. Although the states can
be said to have an indirect voicethrough the Senates advice and consentin the treaty-making process,
the Senate has no voice when the president signs executive agreements, which lately are more common
than treaties.
100. Zschernig, 389 U.S.at432.
101. Two decades earlier, in Clark v. Allen, 331 U.S. 503 (1947), the Court upheld a similar California
reciprocity statute.
102. Zschernig, 389 U.S.at 440. It is worth noting that the federal government had formally stated that the
statute did not interfere with its conduct of foreign affairs. In a concurring opinion, Justice Stewart opined
that it should be immaterial whether the federal government had articulated a position on the subject:
We deal here with the basic allocation of power between the States and the Nation. Resolution of so
fundamental a constitutional issue cannot vary from day to day with the shifting winds at the State
Department. . . . [T]he fact remains that the conduct of our foreign affairs is entrusted under the
Constitution to the National Government, not to the probate courts of the several States.
Zschernig, 389 U.S.at 443 (Stewart, J., concurring).
33
In reaching this result, the Zschernig majority employed a test known as field preemption. This test provides that federal foreign policy preempts state action that has a more than
incidental effect on foreign affairs, even in the absence of any affirmative federal activity on the
same subject, and hence without any showing of conflict. Concurring Justice Harlan found this
test too broad, and instead he employed the narrower test of conflict preemption. According
to this test, in the absence of federal action, states may legislate in areas of their traditional
competence, even if their statutes have an incidental effect on foreign relations, provided that
they do not impair the effective exercise of the Nations foreign policy.103
In American Insurance Assn v. Garamendi,104 the Court acknowledged both tests,105 but
it did not choose between them because it held that the state statute in question failed even
Harlans more lenient test. The basis of the Garamendi dispute were life insurance policies that
European insurers sold before and during World War II to European domiciliaries, many of
whom perished in the Holocaust, and the insurers subsequent intransigence and failure to
honor those policies. To address this problem and the potential friction with European governments, the United States government negotiated certain mechanisms of voluntary compliance
and dispute resolution, including the establishment of a compensation fund. The negotiations
culminated in the signing of an executive agreement with Germany in 2000, and later parallel
agreements with Austria and France.
In the meantime, California enacted its Holocaust Victim Insurance Relief Act (HVIRA) in
1999, despite contrary admonitions from the federal government. HVIRA required any insurer
doing business in California to disclose (upon penalty of losing its license) all the details of all
insurance policies that the insurer, or any company related to it, sold to persons in Europe (not
only Holocaust victims) between 1920 and 1945. The plaintiffs (who were insurers affiliated with
two German insurers, who had issued Holocaust-era policies in Germany, but were not parents,
subsidiaries, or corporate alter egos of the German companies) challenged HVIRAs constitutionality on several grounds. In a five-to-four decision, the Supreme Court held that HVIRA was
unconstitutional because it interfered with the federal governments conduct of foreign relations.
The majority opinion began by stating the obvious, that at some point an exercise of state
power that touches on foreign relations must yield to the National Governments policy.106
The question here was whether California had reached the forbidden point. Because the
executive agreements at issue did not contain preemptive language (which would make the
issue straightforward), the Court had to answer the question under the tests enunciated in
Zschernig. Without repudiating the field-preemption test, Garamendi employed the conflict-
preemption test to hold that HVIRA was unconstitutional because it produced more than
an incidental effect in conflict with express foreign policy.107 Because the authority of the
federal government to negotiate and settle claims such as the ones involved in this case was
103. Id. at 45859 (Harlan, J., concurring).
104. 539 U.S. 396 (2003).
105. The Court suggested that the two tests can be seen as complementary, with field preemption to be
employed when a state is acting outside a traditional state responsibility, and conflict preemption to be
employed when a state acts within such competence, but in a way that affects foreign relations. Id. at 420
n.11. In the latter scenario, it might make good sense to require a conflict, of a clarity or substantiality
that would vary with the strength or the traditional importance of the state concern asserted.Id.
107. Id. at420.
34
unquestioned, the only question was whether there was a clear conflict108 between HVIRA
and the exercise of federal policy. The Court found a sufficiently clear conflict to require finding preemption.109
The Court characterized HVIRA as an obstacle to the success of the National Governments
chosen calibration of force in dealing with the Europeans using a voluntary approach.110
Californias indiscriminate disclosure provisions diminished the effectiveness of the presidents
chosen approach by undercutting European privacy protections. Although California and the
president had the same laudable goals, a common end hardly neutralizes conflicting means.111
While the president has consistently chosen kid gloves, California used an iron fist112 by
making exclusion from a large sector of the American insurance market the automatic sanction for noncompliance with its policies. Regardless of which approach was wiser, Californias
approach had to give way because:it (1)undercut[] the Presidents diplomatic discretion and
the choice he ha[d]made exercising it, and it (2) compromise[d] the very capacity of the
President to speak for the Nation with one voice in dealing with other governments.113
At least seven other states enacted statutes similar to Californias HVIRA.114 In Gerling Global
Reinsurance Corp. of America v.Gallagher,115 the 11th Circuit struck down a similar Florida statute under the Due Process clause. Florida argued that, because they did business in Florida, the
insurers had sufficient contacts with Florida to permit regulation by Florida. The court rejected
this argument, pointing out that not only are sufficient contacts with the affected party needed,
but also sufficient contacts with the subject of the states regulation. In this case, the subject was
the foreign practices of foreign insurers German affiliates that had no connection to Florida.
The court concluded that the Florida statute violate[d]Due Process to that extent, regardless of
whether there are minimum contacts116 between Florida and the insurers.117
108. Id. at421.
109. Id. at420.
110. Id. at425.
111. Id.
112. Id. at427.
113. Id. at 424. The Court stated that, because the federal policy on the matter was express and the
conflict with the state law was clear, this alone was enough to require state law to yield. But the Court
stated that, had there been a doubt about the clarity of the conflict, it would have to be resolved in favor
of the federal policy given the weakness of the States interest. Id. at 425. The Court found Californias
interest weak because HVIRAs highly targeted disclosure requirements undercut Californias claim of
pursuing general consumer protection interests, and, in any event, the insureds (or their descendants
residing in California) represented only a small fraction of the nationaltotal.
114. For other cases striking down on federal preemption grounds similar statutes intended to protect
Holocaust victims, see Von Saher v.Norton Simon Museum of Art at Pasadena, 578 F.3d 1016 (9th Cir.
2009), as amended in 592 F.3d 954 (9th Cir. 2010), cert. denied, 131 S.Ct. 3055 (2011); In re Assicurazioni
Generali, S.p.A., 592 F.3d 113 (2d Cir. 2010), cert. denied, Weiss v. Assicurazioni Generali, S.p.A., 131
S.Ct. 287 (U.S. 2010). For a case striking down on the same grounds a California statute recognizing the
Armenian Genocide, see Movsesian v.Victoria Versicherung AG, 670 F.3d 1067 (9th Cir. 2012), cert. denied,
Arzoumanian v.Munchener Ruckversicherungs-Gesellschaft Aktiengesellschaft AG, 133 S.Ct. 2795 (2013).
115. 267 F.3d 1228 (11th Cir.2001).
116. Id. at 1238 (emphasis in original).
117.In Garamendi, the Supreme Court did not consider the due process challenge (which the lower
court rejected) because the Court reversed the lower court on other grounds.
35
2. Executive versus Judicial Function

The principle that courts, federal or state, should refrain from interfering with the federal executives conduct of foreign affairs finds expression in several interrelated and sometimes overlapping doctrines, including the act of state doctrine, the now codified doctrine of foreign
sovereign immunity, and the political question doctrine.118
The act of state doctrine is a judicially created doctrine derived from federal powers over
foreign affairs. It provides that American courts, state or federal, will generally refrain from
examining the validity of a taking by a foreign state of property within its own territory, or
from sitting in judgment on other acts of a governmental character done by a foreign state
within its own territory and applicable there.119 The Supreme Court enunciated this doctrine
in Underhill v.Hernandez,120 a case that affirmed a dismissal of a suit for damages brought by
a US citizen against a former Venezuelan military commander, who was responsible for the
plaintiff s wrongful detention during a coup in Venezuela. Relying mostly on notions of international comity, the Court declared:
Every sovereign State is bound to respect the independence of every other sovereign State, and
the courts of one country will not sit in judgment on the acts of the government of another done
within its own territory. Redress of grievances by reason of such acts must be obtained through
the means open to be availed of by sovereign powers as between themselves.121
Building on Underhill and subsequent cases, the Supreme Court explained the act of state
doctrine in terms of domestic separation-of-powers principles in Banco Nacional de Cuba
v. Sabbatino.122 The Court declared that the Judicial Branch will not examine the validity of
a taking of property within its own territory by a foreign sovereign government, extant and
recognized by this country at the time of suit even if the complaint alleges that the taking violates customary international law.123 The Court explained further that the act of state
doctrine is a matter of federal common law because the problems surrounding the doctrine
are intrinsically federal.124 Thus, the doctrine is binding on state courts, as well as on federal
courts, even in diversitycases.
118. The political question doctrine is a subcategory of the doctrine of non-justiciabilitya self-imposed
judicial limitation on the powers of judicial review. The doctrine of non-justiciability is not limited to
political questions, and the political question doctrine is not limited to foreign affairs. The latter doctrine
stands for the proposition that courts will not review the political acts of the other two branches of government. See Baker v.Carr, 444 U.S. 996 (1979). As one would expect, however, there is little consensus
on what constitutes a political question, so much so that this doctrine is more of a conclusion than a
true doctrine. In any event, this doctrine is invoked, but not necessarily applied, in many cases involving
foreign affairs. For a review of cases applying the doctrine, see G. Born & P. Rutledge, International Civil
Litigation in United States Courts, 2021, 5556, 81011 (5th ed.2011).
119. American Law Institute, Restatement (Third) of Foreign Relations Law 443 (1987).
120. 168 U.S. 250 (1897).
121. Id. at252.
122. 376 U.S. 398 (1964).
123. Id. at428.
124. Id. at427.
36
This doctrine has been described as a limitation on the exercise of adjudicatory jurisdiction [as] a mechanism of judicial abstention to allow the judiciary prudentially to avoid
litigating a foreign sovereigns public conduct committed within its territory [and thus]
avoid being enmeshed in matters of foreign affairs which could risk embarrassment to the
executive.125 However, the doctrine has also been described as a special rule of conflict of
laws that functions in a way that displaces the ordre public reservation.126
The Supreme Courts latest pronouncement on the doctrine in W.S. Kirkpatrick & Co.
v. Environmental Tectonics Corp.127 seems to lend support to the above view. Although the
Court held the doctrine inapplicable, because this case did not require passing judgment on the
validity of the acts of a foreign government, the Court found it necessary to explain that the
act of state is not some vague doctrine of abstention but [rather] a principle of decision binding on federal and state courts alike.128 After reiterating the obligation of American courts to
decide cases properly presented to them, the Courtsaid:
The act of state doctrine does not establish an exception [from the above obligation] for cases and
controversies that may embarrass foreign governments, but merely requires that, in the process of
deciding, the acts of foreign sovereigns taken within their own jurisdiction shall be deemed valid.129
The precise scope of this principle of decision is defined by a series of Supreme Court
decisions, and unreviewed lower court decisions, suggesting that this principle may not be as
broad as the above formulation implies. For example, although the Supreme Court has not
produced a majority opinion defining the exceptions to the act of state doctrine, it has been
assumed that the doctrine does not apply to commercial acts of foreign states, or to cases in
which the executive branch informs the court that adjudication of the case will not impede the
conduct of foreign affairs.130
The doctrine of foreign sovereign immunity is broader than the act of state doctrine in that,
in its absolute expression, the former doctrine exempts from judicial jurisdiction the foreign sovereign as such, regardless of the nature or location of its acts. The United States initially followed
the absolute theory of foreign sovereign immunity, but later it adopted a modified practice that
allowed the US State Department to request immunity in actions against friendly sovereigns. In
1952, the State Department began to apply the restrictive theory, whereby immunity was recognized with regard to a foreign states sovereign or public acts, but not its privateacts.
In 1976, Congress enacted the Foreign Sovereign Immunities Act (FSIA),131 which codified
the general principle that foreign states and their instrumentalities are immune from the jurisdiction of federal and state courts in the United States. However, the Act also provides several
125. C. Oliver, E. Firmage, C. Blakesley, R. Scott & S. Williams, The International Legal System, 624 (4th
ed.1995).
126. Restatement (Third) 443, Reporters Note1.
127. 493 U.S. 400 (1990).
128. Id. at 406 (quoting from Sabbatino, emphasis in original).
129. Id. at408.
130. For an in-depth discussion of the scope of, and exceptions to, the act of state doctrine, see G. Born
& P. Rutledge, International Civil Litigation in United States Courts, 797857 (5th ed.2011).
131. 28 U.S.C.A. 1602 et seq. (2015).
37
exceptions to this general principle. The exceptions grant to federal courts subject-matter and
in personam jurisdiction with regard to certain acts of the foreign state.132 Among the cases
covered by these exceptions are those in which the action is based on a commercial activity
with a US nexus,133 taking of property in violation of international law,134 certain noncommercial torts occurring in the United States,135 and acts of torture, extrajudicial killing, aircraft
sabotage, and hostage taking, wherever committed.136
IV. L AW A P P L I E D I N F EDER A L COURT S

A. IN GENERAL
Although the supremacy of federal law may suffice to explain why state courts must apply federal law in certain cases, nothing intuitive explains why federal courts must apply state law. The
reasons for this phenomenon are partly historical, partly practical, and partly constitutional.137
To begin with, many cases involve inextricably interrelated issues of both federal and state
law. For example, a federal question case filed in federal court may involve interrelated claims
or counterclaims arising under state law.138 In such a case, the federal court may adjudicate
132. For a comprehensive discussion of the FSIA, accompanied by all pertinent authorities, see Born,
International Civil Litigation 231361.
133. See 28 U.S.C.A. 1605(a)(2) (2015) (authorizing jurisdiction over actions based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United
States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the
territory of the United States in connection with a commercial activity of the foreign state elsewhere and
that act causes a direct effect in the United States.).
134. The exception applies only if the taken property, or any property exchanged for it, is present in
the United States in connection with a commercial activity carried on in the United States by the foreign
state or is owned or operated by an agency or instrumentality of the foreign state and that agency or
instrumentality is engaged in a commercial activity in the United States. 28 U.S.C.A. 1605(a)(3) (2015).
135. The exception applies if the injury occurred in the United States, even if the tortious act or omission
of the foreign state occurred elsewhere, but not if the act was in the exercise of a discretionary function.
See 28 U.S.C.A. 1605(a)(5) (2015).
136. See 28 U.S.C.A. 1605(a)(7) (2015).
137. For in-depth discussions of the law governing federal courts, see, for example, C. Wright & M.K.
Kane, Law of Federal Courts (7th ed. 2011); P. Low, J. Jeffries & C. Bradley, Federal Courts and the
Law of Federal-State Relations (8th ed. 2014); J.P. Bauer, The Erie Doctrine Revisited: How a Conflicts
Perspective Can Aid the Analysis, 74 Notre Dame L. Rev. 1235 (1999); P. Borchers, Choice of Law
in Federal Courts: A Reply, 38 Brandeis L.J. 159 (2000); A. Erbsen, Eries Four Functions: Reframing
Choice of Law in Federal Courts, 89 Notre Dame L. Rev. 579 (2013); S. Fruehwald, Choice of Law in
Federal Courts:AReevaluation, 37 Brandeis L.J. 21 (19981999); K. Roosevelt, Choice of Law in Federal
Courts:From Erie and Klaxon to CAFA and Shady Grove, 106 Nw. U.L. Rev. 1 (2012); Symposium:Erie
Railroad at Seventy-Five, 10 J.L. Econ. & Poly 1 (2013) (containing articles by Michael S.Greve, Richard
A.Epstein, Ernest A.Young, Allan Erbsen, William H.J. Hubbard, Suzanna Sherry, Samuel Issacharoff,
Robert R.Gasaway, Ashley C.Parrish, and Jeremy Rabkin).
138. A federal question case is a case arising under the Constitution, laws, or treaties of the United
States. See U.S. Const. Art. III, 2; 28 U.S.C.A. 1331 (2015); Cully v. First Natl. Bank, 299 U.S. 109
(1936).
38
the state claims (relying on supplemental jurisdiction)139 and will apply state law to them.
Conversely, a case filed in state court and arising under state law may involve interrelated
claims or defenses arising under federal law. Again, the state court will have to apply federal
law to those claims or defenses.
In other cases, federal law expressly requires federal courts to apply state law. One general
example is the Rules of Decision Act, a kind of basic law that is discussed infra. Another
example is the Federal Tort Claims Act, which authorizes suits against the United States for
torts committed by its employees. The Act requires the application of the law of the place
where the act or omission occurred.140 If that place is in a state of the United States, the court
will apply that states law, including its conflicts law.141 Finally, one major category of cases in
which federal courts routinely apply state substantive and conflicts law, and which calls for
more detailed explanation, are cases in which the courts subject matter jurisdiction rests solely
on the parties diversity of citizenship.142 By its very nature, diversity jurisdiction includes many,
many conflicts cases. The next section discusses this category ofcases.
B. LAW APPLIED INDIVERSITYCASES

1.SubstantiveLaw
The first Judiciary Act of 1789 provided:
The laws of the several states, except where the Constitution or treaties of the United States or
Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil
actions in the courts of the United States, in cases where they apply.143
139. See 28 U.S.C.A. 1367 (2015).

140. 28 U.S.C.A. 1346(2015).
141. See Richards v.United States, 369 U.S. 1 (1962), discussed infra 65051.
142. The constitutional basis of diversity jurisdiction is Article III, Section 2 of the Constitution, which
authorizes Congress to assign to the jurisdiction of federal courts cases in which one of the parties is the
United States, a state of the United States, or a foreign country, and cases in which the parties are citizens
of different states or citizens of such states and of foreign countries. Congress has done so by granting
federal district courts jurisdiction to adjudicate cases in which the amount in controversy exceeds $75,000
and the dispute is between or among: (1) citizens of different states, (2) citizens of a state and citizens
of a foreign state, and (3)a foreign state as plaintiff and citizens of a State or of different States. 28
U.S.C. 1332(a) (2015). For actions in which the foreign state is a defendant, see 28 U.S.C. 1330 (2015)
(authorizing federal court jurisdiction regardless of the amount in controversy), and 28 U.S.C. 1602 et
seq. (2015) (Foreign Sovereign Immunities Act). The congressional jurisdictional grant is narrower than
the constitutional grant in that, inter alia:(1)the statutory grant is limited to cases in which the amount
in dispute exceeds $75,000 (which remain within the jurisdiction of the state courts as courts of general
jurisdiction), and (2)while the constitutional grant requires only minimal diversity (which is satisfied
even when only one plaintiff is diverse from at least one defendant), the congressional grant has been
interpreted as requiring complete diversity, that is, all plaintiffs must be diverse from all defendants. See
Strawbridge v.Curtiss, 7 U.S. (3 Cranch) 267 (1806).
143. Judiciary Act of 1879 34, 1 Stat. 92. This Act, now codified in 28 U.S.C.A. 1652 (2015), is also
known as the Rules of DecisionAct.
39
Through the except clause, the Act distinguished between:(1)cases that the Constitution
or federal laws require or provide to be governed by federal law, and (2)other cases for which
the Constitution or federal laws do not so provide. Federal question cases are an example of
the former category, whereas diversity cases are an example of the latter, but only when they
are not otherwise governed by federal law. For these cases, the Act provides that [t]he laws
of the several states shall be regarded as rules of decision in civil actions in the courts of
the United States, in cases where they apply. This provision expressly requires the application
of state statutes. During the formative era, the question was raised whether the word laws
also included the common law of the several states. In Swift v. Tyson,144 the Supreme Court
answered this question in the negative, at least with regard to matters of general commercial
law:federal courts sitting in diversity could ascertain and declare the content of that law independently from state court decisions to the same effect.
Almost a century later, the Court overruled Swift, in Erie Railroad Co. v.Tompkins,145 holding that when sitting in diversity and adjudicating a matter not covered by applicable federal
law, a federal court must follow the common law of the forum state, even with regard to matters of general commercial law. The Court based its overturning of Swift partly on constitutional and partly on policy grounds. The constitutional ground was that Swift had put federal
courts in the position of usurping the lawmaking powers that the Tenth Amendment reserved
to the states because it allowed these courts to create general common law on subjects that the
Constitution did not assign to the federal government. The policy ground was that, by allowing
a federal court to create a common law different from that of the forum state, Swift undermined
intra-state uniformity and favored nonresident plaintiffs by providing forum-shopping opportunities that were unavailable to resident plaintiffs. Thus, the Erie decision opted for intra-state
uniformity at the expense of interstate uniformity.
Although Erie pronounced that [t]here is no federal general common law,146 that statement must be limited to diversity cases that do not involve a subject falling within the lawmaking competence of the federal government. Federal courts may, and do, create federal common
law when they decide a matter that is within the lawmaking competence of the federal government, but on which Congress has not legislated, or its legislation contains gaps. In such
144. 41 U.S. (16 Pet.) 1 (1842).

145.304 U.S. 64 (1938). From the extensive literature on Erie, see B.R. Clark, Eries Constitutional
Source, 95 Calif. L.Rev. 1289 (2007); B.R. Clark, Ascertaining the Laws of the Several States:Positivism
and Judicial Federalism after Erie, 145 U. Pa. L. Rev. 1459 (1997); C.E. Clark, State Law in the Federal
Courts: The Brooding Omnipresence of Erie v. Tompkins, 55 Yale L. J. 267 (1946); K.M. Clermont,
Reverse-Erie, 82 Notre Dame L.Rev. 1 (2006). J.H. Ely, The Irrepressible Myth of Erie, 87 Harv. L.Rev.
693 (1974); R.R. Gasaway & A.C. Parrish, In Praise of ErieAnd Its Eventual Demise, 10 J.L. Econ. &
Poly 225 (2013); C. Green, Erie and Problems of Constitutional Structure, 96 Cal. L.Rev. 661 (2008); M.S.
Green, Eries Suppressed Premise, 95 Minn. L. Rev. 1111 (2011); P.B. Kurland, Mr. Justice Frankfurter,
the Supreme Court and the Erie Doctrine in Diversity Cases, 67 Yale L.J. 187 (1957); P.J. Mishkin, Some
Further Last Words on ErieThe Thread, 87 Harv. L.Rev. 1682 (1974); M.H. Redish & C.G. Phillips, Erie
and the Rules of Decision Act:In Search of the Appropriate Dilemma, 91 Harv. L.Rev. 356 (1977); A.M.
Trammell, Oil and Trouble:How the Erie Doctrine Became Structurally Incoherent (And How Congress
Can Fix It), 82 Fordham L. Rev. 3249 (2014); D.P. Wood, Back to the Basics of Erie, 18 Lewis & Clark
L.Rev. 673 (2014); E.A. Young, A General Defense of Erie Railroad Co. v.Tompkins, 10 J.L. Econ. & Poly
17 (2013).
146. Erie, 304 U.S.at 78 (emphasis added).
40
cases, federal courts are free to create federal common law, if the subject in question involves a
uniquely federal interest that requires uniform national treatment.147 Invoking this authority,
federal courts have created common law on several subjects.148 Federal common law preempts
contrary state law, as does federal statutory law.149
2.ProceduralLaw
The Conformity Act of 1872 required federal courts to follow as near as may be, the practice, pleadings, and forms and modes of proceeding of the courts of the state in which the
federal court sits.150 This provision was intended to enable attorneys to practice in both federal
and state courts without having to learn two procedural systems. This regime remained in
place until 1938 (which was also the year of the Erie decision), when the Supreme Court promulgated the Federal Rules of Civil Procedure.151 These rules, as subsequently amended, apply
in federal courts todate.
Thus, 1938 was the year of a dramatic flip-flop. Federal courts: (1) ceased applying state
procedural law and began applying federal procedural law, and (2) stopped creating general
commercial law and began applying state common law.152
One thing that did not change in 1938 was the practical need for a clear line separating substantive and procedural law. In a series of decisions, the Supreme Court attempted
to draw such a line for Erie purposes,153 as have state courts for general choice-of-law purposes.154 Neither set of decisions can be recounted here.155 Suffice it to say that the line separating
147. See Boyle v.United Techs. Corp., 487 U.S. 500 (1988).
148. See S.B. Burbank, Semtek, Forum Shopping and Federal Common Law, 77 Notre Dame L.Rev. 1027
(2002); B.R. Clark, Federal Common Law:AStructural Reinterpretation, 144 U. Pa. L.Rev. 1245 (1996);
M.A. Field, Sources of Law: The Scope of Federal Common Law, 99 Harv. L. Rev. 881 (1986); H.M.
Hart, Jr., The Relations between State and Federal Law, 54 Colum. L. Rev. 489 (1954); L. Kramer, The
Lawmaking Power of the Federal Courts, 12 Pace L. Rev. 263 (1992). T.W. Merrill, The Common Law
Powers of Federal Courts, 52 U. Chi. L. Rev. 1 (1985); C. Nelson, The Persistence of General Law, 106
Colum. L.Rev. 503 (2006).
149. See A. Hill, The Law-Making Power of the Federal Courts:Constitutional Preemption, 67 Colum.
L.Rev. 1024 (1967); A. Young, Preemption and Federal Common Law, 83 Notre Dame L.Rev. 1639 (2008).
150. Act of 1 June 1872, ch. 255, 17 stat. 196,197.
151. The promulgation was authorized by the Rules Enabling Act of 1934. For discussion of that Act, see
S.B. Burbank, The Rules Enabling Act of 1934, 130 U. Pa. L.Rev. 1015 (1982).
152. See R.R. Perschbacher & D.L. Bassett, The Revolution of 1938 and Its Discontents, 61 Okla. L.Rev.
275 (2008).
153. See, e.g., Sibbach v.Wilson & Co., 312 U.S. 1 (1941); Ragan v.Merchs. Transfer & Warehouse Co.,
337 U.S. 530 (1949); Byrd v.Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525 (1958); Hanna v.Plumer, 380
U.S. 460 (1965); Walker v. Armco Steel Corp., 446 U.S. 740 (1980); Business Guides, Inc. v.Chromatic
Communications Enterprises, Inc., 498 U.S. 533 (1991); Gasperini v. Center for Humanities, Inc., 518
U.S. 415 (1996).
155. For discussion, see Hay, Borchers & Symeonides, Conflict of Laws 20734; E.C. Dudley, Jr. & G.
Rutherglen, Deforming the Federal Rules:An Essay on Whats Wrong with the Recent Erie Decisions, 92
Va. L.Rev. 707 (2006); C.D. Floyd, Erie Awry:AComment on Gasperini v.Center for Humanities, Inc.,
41
substance from procedure for Erie purposes is not necessarily the same as the line separating
these categories for choice-of-law purposes. For example, as discussed later, a statute of limitations qualifies as substantive for Erie purposes,156 although most states consider it procedural
for choice-of-law purposes.157
3.ChoiceofLaw
Three years after Erie, the Supreme Court extended Eries reasoning to choice of law. In Klaxon
Co. v. Stentor Electric Manufacturing Co.,158 the Court held that, when a federal court sits in
diversity in a case that is not otherwise governed by federal law, the court must apply the
choice-of-law rules of the state in which it sits.159 This was a significant development considering that, as noted earlier, federal courts decide the majority of conflicts cases.160
The Klaxon decision has been criticized as being neither constitutionally mandated nor
resting on solid policy grounds.161 Indeed, from a constitutional perspective, it is clear that,
although federal courts lack the power to create new rules of, say, tort law, they certainly have
the authority under the Full Faith and Credit clause to determine which of the conflicting state
tort rules should govern in a multistate case. As noted earlier, under this clause, conflicts law is
a matter of federal law, and only by default has it become a matter of state law. From a policy
perspective, the reasons that might have supported Eries choice of intra-state over interstate
uniformity arguably point to the opposite choice in Klaxon. This is because interstate forum
1997 B.Y.U. L.Rev. 267; R.D. Freer, Some Thoughts on the State of Erie after Gasperini, 76 Tex. L.Rev.
1637 (1998); T.O. Main, The Procedural Foundation of Substantive Law, 87 Wash. U.L. Rev. 801 (2010);
W.C. Perdue, The Sources and Scope of Federal Procedural Common Law:Some Reflections on Erie and
Gasperini, 46 U. Kan. L.Rev. 751 (1998); J. Tidmarsh, Procedure, Substance, and Erie, 64 Vand. L.Rev.
877 (2011).
156. See Guaranty Trust Co. v.York, 326 U.S. 99 (1945).
157. See infra 52347.
158. 313 U.S. 487 (1941).
159. When the federal courts jurisdiction is based on federal question, Klaxon is inapplicable and the
court is free to fashion its own choice-of-law rules. Many federal courts choose to follow the choice-of-
law rules of the forum state, while other courts follow other options, such as applying the Restatement
(Second).
160. See supra 6, note 21.
161. See Hay, Borchers & Symeonides, Conflict of Laws 20406; P. Borchers, The Origins of Diversity
Jurisdiction, The Rise of Legal Positivism, and a Brave New World for Erie and Klaxon, 72 Tex. L.Rev.
79 (1993); S. Fruehwald, Choice of Law in Federal Courts:AReevaluation, 37 Brandeis L.J. 21 (1998);
P. Hay, Reflections on Conflict-of-Laws Methodology, 32 Hastings L.J. 1644 (1981); D. Laycock, Equal
Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum.
L.Rev. 249 (1992); K. Roosevelt III, Choice of Law in Federal Courts:From Erie and Klaxon to CAFA
and Shady Grove, 106 Nw. U. L. Rev. 1 (2012). See also J.P. Bauer, The Erie Doctrine Revisited: How a
Conflicts Perspective Can Aid the Analysis, 74 Notre Dame L. Rev. 1235 (1999); J.P. Bauer, Shedding
Light on Shady Grove:Further Reflections on the Erie Doctrine from a Conflicts Perspective, 86 Notre
Dame L. Rev. 939 (2011); M.S. Green, Horizontal Erie and the Presumption of Forum Law, 109 Mich.
L.Rev. 1237 (2011); A. Ides, The Supreme Court and the Law to be Applied in Diversity Cases:ACritical
Guide to the Development and Application of the Erie Doctrine and Related Problems, 163 F.R.D. 19
(1995).
42
shopping is more likely in multistate cases, and thus interstate uniformity should receive higher
billing than intra-state uniformity.
Notwithstanding these and other criticisms, the Supreme Court reaffirmed Klaxon in Day
& Zimmermann, Inc. v.Challoner.162 Challoner was a product liability action filed in Texas by
the survivors of an American soldier, who was killed in Cambodia during the Vietnam War
when a mortar shell manufactured by an American defendant exploded prematurely. Applying
a modern choice-of-law analysis, the Texas federal court ignored Texass lex loci delicti rule,
which pointed to Cambodian law, and instead applied American law. The Supreme Court
reversed in a brief per curiam opinion, making it clear that federal courts were not free to
exercise independent judgment in choice-of-law decisions. A federal court in a diversity case
is not free to engraft onto those state rules exceptions or modifications which may commend
themselves to the federal court but which have not commended themselves to the State in
which the federal court sits.163
Thus, a federal court is not free to ignore a state choice-of-law rule, even when, as in
Challoner, the rule leads to an absurd result. The court may adopt a new rule only when it can
credibly claim that the rule would commend itself to the state courts. In turn, such a claim is
plausible when state choice of law is ambiguous, or when the case involves a novel issue or one
that the state courts have not considered in recent years.164 Even then, the court must be careful
to couch its ruling not as its own conclusion, but rather as a prediction of what the state court
would rule if confronted with the samecase.
162. 423 U.S. 3 (1975).

163. Id.at4.
164. Many states provide for a process known as certification, under which a federal court can request
an opinion from the states highest court on novel questions of law pending before the federalcourt.
PA R T T W O
HISTORY, DOCTRINE,
AND METHODOLOGY
three
Early Choice-of-Law Doctrine

and theTraditional System
Proceeding on the premise that one must know the past to understand the present,1 this chapter provides a brief account of the history of choice-of-law doctrine, and then discusses the
traditional American choice-of-law approach, as exemplified in the first conflicts Restatement.2
The word traditional usually has negative connotations, especially when used in juxtaposition with modern. Nevertheless, the study of the traditional approach is necessary and
valuable, for at least the following two reasons.
First, as explained later, the traditional approach remains in force in most states in areas
other than torts and contracts, where it has given way to other modern approaches. Thus,
traditional in this context does not necessarily mean pass, especially because, even in torts
and contracts, this approach retains its following in about a dozen states.3
Second, regardless of its current viability, the traditional approach remains the best vehicle
for introducing the elementary questions, basic syllogism, and fundamental objectives of the
choice-of-law process. Because the modern approaches grew out of a reaction to the traditional
approach, the study of the traditional approach provides a valuable frame of reference within
which to compare, contrast, understand, and critique the modern approaches.
I I . C H O I C E -O F -L AW DOCT R I NE
B EF O R E T H E T W ENT I ET H CENT URY
Conflicts law is one of the few branches of American law that owes its origin to the continental
civil law, rather than the English common law. In large part, this is because during the formative
1. Paraphrasing Dr.Carl Sagan (You have to know the past to understand the present).
2. See American Law Institute, Restatement of the Law, Conflict of Laws 1 (1934) (hereinafter referred
to as Restatement (First)).
3. See infra 14143.
45
46
History, Doctrine, and Methodology
period of American conflicts law, English private international law was far less developed than
was its continental counterpart. The first conflicts book published on American soil was authored
by a civil law lawyer from Louisiana, Samuel Livermore.4 His book was a concerted effort to
import to the United States the doctrine of the continental statutists. Although this effort failed,
Livermore indirectly influenced the course of American conflicts law by making available the
otherwise inaccessible continental conflicts literature to Joseph Story, the intellectual father of
American conflicts law. In addition to providing a thorough English summary of this literature
in his own book, Livermore donated his entire library of continental writings to the Harvard
Law School (his alma mater), where Justice Joseph Story was then a professor. Story made full
use of this library in writing his seminal Commentaries on the Conflict of Laws, to which we shall
return later. For now, let us follow the path of choice-of-law doctrine in the previous centuries.
A. FROM ANCIENT GREECE TOMEDIEVALITALY

According to most Western authors, choice of law originated in the twelfth century in Northern
Italy. Yet conflicts problems existed (and solutions to them were devised) in much earlier times.
Although the historical record is incomplete, some evidence of those solutions has survived.
For instance, in addressing a court in the Greek island-state of Aegina, the Athenian orator
Isocrates (436358 b.c.) argued that the court should uphold his clients testament because it
conformed to both the law of the testators fatherland and the law of the forum.5 Acompact
between two Greek city-states signed circa 100 b.c. assigned tort claims to the jurisdiction of
the tortfeasors home state and subjected them to that states law.6 Similarly, a decree issued in
Hellenistic Egypt circa 120 b.c. provided that contracts written in Greek were subject to the
jurisdiction of the Greek courts and governed by Greek law, whereas contracts written in the
Egyptian language were subject to the jurisdiction of the Egyptian courts and governed by
Egyptianlaw.7
Interestingly, both the Greek compact and the Egyptian decree attached the choice-of-law
question to the jurisdictional question and answered both questions through a preestablished
rule. In contrast, the Romans detached the two questions and addressed only the question
of jurisdiction. Roman law vested a special officialthe praetor peregrinuswith jurisdiction
over cases with foreign elements, or at least over disputes between non-Roman citizens, but
was silent on the question of which law should govern those disputes. Left to his own devices,
the praetor came up with the idea that, rather than choosing the law of one of the involved
4. See S. Livermore, Dissertations on the Questions Which Arise from the Contrariety of the Positive Laws
of Different States and Nations (1828). For the influence of this book on American conflicts law, see R.de
Nova, The First American Book on Conflict of Laws, 8 Am. J.Leg. Hist. 136 (1964).
5. See Isocrates, Aeginiticus 19.16. For an analysis of Aeginiticus, see I. Maridakis, Idiotikon Diethnes
Dikaion, 119 et seq. (1967). For earlier evidence of the existence of choice-of-law rules dating back to the
sixth century b.c., see C. Papastathis, Problems of Choice of Law in Sixth Century Greece:Contribution
to the Study of the Pre-history of European Private International Law, Rev. Hellnique de droit europen
531 (1982).
6. See D. Evrigenis, Idiotikon Diethnes Dikaion, 5051 (1968); A. GrammatikakiAlexiou, Z. Papassiopi
Passia & E. Vassilakakis, Idiotikon Diethnes Dikaion, 67 (1997).
7. See Juenger, Multistate Justice78.
Early Choice-of-Law Doctrine and the TraditionalSystem
47
states, he would draw from both states laws to construct an ad hoc substantive rule for the
case at hand. Thus, for the first time, multistate disputes were resolved not through a choice of
law, but rather through the creation of new substantive law applicable only to those disputes.
The law created through this substantivist method, later called jus gentium, was gradually
incorporated into the jus civile (the law that governed relations between Roman citizens), and
both were eventually codified by Emperor Justinian in his Digest (533 a.d.). Because by that
time the Roman Empire encompassed much of the trading world, and because Roman law
accorded Roman citizenship to most of the Empires inhabitants, conflicts between Roman and
non-Roman laws became far less frequent. Perhaps for that reason, the Digest did not contain
any provisions on choice oflaw.
By the twelfth century, when the Italian scholars known as Glossators (11001250) re-
discovered Justinians Digest, the social and economic environment had changed dramatically. Although the Digestsupplemented by the new jus commune, or common law, which
was based on the Digestwas the overarching general law for all of Italy, the city-states of
Northern Italy began to develop their own diverging local customs and laws (statuta). The
increase of trade among these city-states began to generate new interstate conflicts of laws.
For example, [i]f a merchant from Bologna was sued in Modena, should he be judged by the
statutes of the former or the latter city? asked the famous Glossator Accursius (11821263) in
his Glossa ordinaria (1228). The need to address such questions became increasingly pressing.
B. BARTOLUS, STATUTISTS, AND UNILATERALISM

For more than a century, several Glossators and their successors, the Commentators (1250
1400), wrestled with conflicts questions.8 One Commentator, Bartolus of Sassoferrato (1313
1357), attempted to provide the answers.9 However, as a loyal and careful Romanist, Bartolus
recognized that, for these answers to have any authority, they had to be grounded in Justinians
law. Although Justinian had said virtually nothing explicitly on the subject, Bartolus discovered a way to make it appear that these answers were implicit in Justinians Codein fact, in
the very first sentence of it. This sentence provided:Cunctos populos, quos clementiae nostrae
regit temperamentum, in tali volumus religione versari, quam divinum Petrum apostolum traditisse Romanis[.]10 Literally translated, this sentence states:All peoples who are subject to our
8.For the statutists, see H. Kantorowicz & W.W. Buckland, Studies in the Glossators of the Roman
Law:Newly Discovered Writing of the 12th Century (1938); N.E. Hatzimihail, Preclassical Conflict of Laws
(2014); Juenger, Multistate Justice 1019; P. Stein, Roman Law in European History 4549 (1999); De
Nova, Historical and Comparative Introduction to Conflict of Laws, 118 Recueil des Cours 443 (1966
II). One Glossator, Magister Aldricus (11701200), argued that conflicts problems should be resolved
through the application of the law that is potior et utilior (more powerful (or better) and useful). Eight
centuries later, Robert A.Leflar proposed a better-law approach in the United States. See infra 10608.
9. See C.N.S. Woolf, Bartolus of Sassoferrato: His Position in the History of Medieval Political Thought
(1913); N. Hatzimihail, Bartolus and the Conflict of Laws, 60 Rev. Hellenique Dr. Intl 11 (2007); A.P.
Miceli, Bartolus of Sassoferrato, 37 La. L. Rev. 1027 (1977). For translations of Bartoluss work, see
Bartolus on the Conflict of Laws, By Bartolo (of Sassoferrato) translated by H.J. Beale (1914); Bartolus,
Commentarii in Lex Cunctos Populos (transl. by Clarence Smith), in 14 Am. J.Leg. Hist. 154 (1970).
10.Codex1.1.1.
48
merciful sway, we desire them to live under that religion which the divine apostle Peter has
delivered to the Romans.
Clearly, this sentence had nothing to do with secular law, much less conflicts law. The sentence simply expressed the emperors desire for all peoples under his power to adhere to the
Christian religion. However, notice that the emperor spoke only of people under his power,
his merciful swayor jurisdiction, as we would say today. Bartolus read this sentence as an
acknowledgment by the emperor/lawgiver of a limitation on his own power, and thus as an
implicit delineation of the scope of Roman law vis--vis foreign law. If Roman law governs
only those under the emperors sway, then those beyond his sway must be governed by the
law of their own sovereign.11 From this elementary proposition, Bartolus began to construct
principles for delineating the reach of Roman and non-Roman laws, and for resolving conflicts
between the laws (statuta) of the Italian city-states.12
Bartolus, along with later scholars collectively known as statutists, reintroduced the selectivist method for resolving conflicts of laws, a method that brought back the notion of choosing between the conflicting laws rather than blending them as the praetor peregrinus had done.
Their version of the selectivist method was the unilateral one, as opposed to the bilateral
version, which was introduced later in history. The bilateral version postulates a system of a
priori choice-of-law rules that designate the cases that fall within the scope of domestic and
foreign law. In contrast, the unilateral version approaches the matter from the other end. It
focuses on the conflicting substantive laws themselves and tries to determine whether the case
at hand falls within the intended scope of one or the other law. In employing this method, the
statutists simplistically classified local statutes into two categories: (1) real, and (2) personal.
Real statutes were those that operated only within the territory of the enacting state, but not
beyond. In contrast, personal statutes operated beyond the territory of the enacting state and
bound all persons who owed allegiance toit.13
Unfortunately but understandably for that time, the statutists criteria for classifying a statute as real or personal relied excessively on the statutes wording. Subsequent critics derided
this reliance. They seized on one example in Bartoluss writings in which he argued that, if the
statutes first words referred to a person (such as a law that said the first-born son shall succeed to the property), then the statute was personal; but if the first words referred to a thing
(such as the property shall pass to the first-born son), then the statute was real. Although the
rest of Bartoluss examples were slightly less subservient to syntax, the criticisms were justified.
11. See Bartolus, Commentarii in Lex Cunctos Populos, supra note 9, at 154, 17483, 24775.
12. These intra-Roman conflicts presented a more difficult problem for Bartolus. First, he had to answer
the question of whether the Digest even permitted city-states to adopt laws that diverged from the general
law of the Digest. He answered the question affirmatively by stretching the meaning of a provision of the
Digest (D.1.3.32) that recognized the authority of local customs andBartolus postulatedlocal statutes.
He then proposed that conflicts between these statutes be resolved through the same principles of conflicts resolution that he enunciated in discussing the Cunctos populos clause. See Bartolus, Commentarii
in Lex de Quibus, supra note 9, at 16374. By so doing, Bartolus tacitly subscribed to the notion that, by
and large, the same principles under which one can resolve international conflicts can also be used to
resolve inter-city or interstate conflicts.
13. Later Commentators added a third category of statutes, called mixed. However, contrary to what
this term might connote, it did not really describe a new category of statutes. Rather, it encompassed all
those personal statutes that, on closer examination, were thought to operate territorially.
49
But this problem could be easily corrected by using more enlightened interpretative methods that rely on teleology rather than on syntax. Eventually this correction occurred when a
later Commentator, Guy de Coquille (15231603), proposed that the classification of statutes
into real or personal should not depend on the wording of the statute, but rather on the presumed and apparent purpose of those who enacted it. This is no different from examining the
policy of a law, a notion that is now an integral part of many modern American choice-of-law
methodologies.
Despite its shortcomings, the statutists classification of statutes was the first comprehensive
though predictably unsuccessfulattempt to delineate the legislative competence of states.
Bartolus, of course, pretended that his delineation was implicit in the supranational law of
Justinians Digest. Yet, by basing his delineation on the wording of city-state statutes, Bartolus
subconsciously subscribed to the opposite and somewhat circular premise, namely:that a states
legislative competence or prescriptive jurisdiction is not fixed from above through a super-
arching law, but rather depends on the words through which that state chooses to express its
assertion of legislative competence. Eventually, this premise led not only to the understanding that private international law is primarily national law, but also to the notion that a states
claim or interest to apply its law, as that claim is expressed in the words or the content of
that law, is an acceptable criterion for resolving conflicts of laws. As we shall see later, there
is an obvious similarity between this line of thinking and some contemporary American
approaches, especially Brainerd Curries interest analysis.14
C. THE DUTCH COMMENTATORSCOMITY

During the fifteenth and sixteenth centuries, other Italian and especially French scholars, such
as Dumoulin and dArgentr,15 refined and modified Bartoluss method, but without departing
from the basic tenets of statutist unilateralism. By the seventeenth century, the leadership of
conflicts literature moved to the Netherlands, which by that time was one of the major trading
nations in theworld.
In the meantime, Europe had witnessed the emergence of modern nation-states, and Jean
Bodins works on territorial sovereignty had become a best-seller.16 It is therefore no surprise
that the Dutch authors became intensely preoccupied with explaining why courts apply foreign
law; in other words, how to reconcile the application of foreign law with the principle of territorial sovereignty. The Dutch answer can be synopsized in one henceforth-famous wordcomity.
Comity was defined as something between mere courtesy and a legal duty, as derived from the
tacit consent of nations, and based on mutual forbearance and enlightened self-interest. In a

15. Charles Dumoulin (15001566) resurrected the idea of party autonomy (namely, the notion that a
contract should be governed by the law chosen by the parties) and extended that notion to cases in which
the parties did not make an express choice. Bertrand dArgentr (15191590) modified Bartoluss classification of statutes by creating a third category known as mixed statutes (see supra note 13), and thus
expanded the category of statutes that operated territorially. He also advocated the primacy of the law of
the forum (lexfori).
16. See Jean Bodin, Six livres de la rpublique (1576).
50
10-page essay, the most famous of these authors, Ulricus Huber (16241694),17 postulated the
following three axioms:
(1) The laws of each state have force within the states territory, but not beyond.
(2) These laws bind all those who are found within the territory, whether permanently or
temporarily.
(3) Out of comity, foreign laws may be applied so that rights acquired under them can
retain their force, provided that they do not prejudice the states powers or rights.
The first two axioms elevate territorialism into the main operating principle of private
international law, a position that remained unchallenged for many generations. The third
axiom attempts to explain why the forum state will apply the law of another sovereign, but not
when. Neither the vague notion of comity nor the less vaguebut equally problematicnotion
of acquired rights provide concrete guidance as to the circumstances in which the forum will
or will not apply the law of anotherstate.
Hubers axioms exerted a strong influence on both English and American conflicts law,
described infra, but had little influence in continental Europe, which remained faithful to
statutist teachings until the middle of the nineteenth century.
D. WCHTER AND SAVIGNY:FROM

UNILATERALISM TOMULTILATERALISM
In the mid-nineteenth century, two German authors published their views, which, although
diametrically opposed, changed the course and direction of European private international law.
The first author was Carl Georg von Wchter (17971880),18 who debunked statutist learning,
exposed the vested rights theorys circular reasoning, and disparaged the comity doctrine.19 In
the place of these discarded internationalist doctrines, Wchter proposed an ethnocentric, unilateral approach that was based on the primacy of the law of the forum (lex fori). Describing
the judge as an instrument of state legislative will, Wchter argued that, in resolving conflicts
disputes, the judge should keep in mind the policies and interests of the forum state, rather
than notions of comity and other multistate considerations. Although Wchters approach had
no followers in Europe, it bears a remarkable resemblance to approaches developed in the second half of the twentieth century in the United States, especially Albert Ehrenzweigs lex fori
approach and Brainerd Curries interest analysis.20
17. Hubers essay, entitled De conflictu legum diversarum in diversis imperiis, was contained in a larger
work entitled Praelectiones Juris Romani et hodierni (1689). This essay, which was the first work to use the
term conflict of laws, is reputed to be the most widely read document on conflicts law. It is translated
into English in E. Lorenzen, Hubers De Conflictu Legum, 13 Ill. L.Rev. 375 (1919).
18. See C.G. von Wchter, ber die Collision der Privatrechtsgesetze verschiedener Staaten (pt. 1), 24
Archiv fr die zivilistiche Praxis, 230 (1841), (pts. 24) 25 Archiv fr die zivilistiche Praxis, 1, 161, 361
(1842). For an English commentary and partial translation, see K.H. Nadelmann, Wchters Essay on the
Collision of Private Laws of Different States, 13 Am. J.Comp. L. 414 (1964).
19.Juenger, Multistate Justice32.
20. See infra, 97105.
51
The second German author was the great Romanist Friedrich Carl von Savigny (1779
1861).21 His contribution was both constructive and decisive. Like Wchter, Savigny rejected
the statutist doctrine; but, unlike Wchter, he rejected both the unilateral approach and the
primacy of the lex fori. Instead, Savigny adopted and perfected the bilateral (or multilateral)
choice-of-law approach, which had been cast aside in favor of the unilateral approach. Rather
than focusing on the conflicting laws and trying to ascertain their intended spatial reach,
Savigny began his analysis from the opposite end. He focused on disputes, or legal relationships, and sought to identify the state in which each relationship had its seat, or in whose
legislative jurisdiction it belonged. He divided private international law into broad categories
corresponding to the major divisions of private law (family law, successions, property, contracts, torts, etc.) and then, through connecting factors (such as domicile, situs, or the place
of the transaction or event), identified those inherent characteristics of each legal relationship
that placed its seat in one state rather than another.
The result of this classificatory approach was a network of neutral, even-handed, bilateral
choice-of-law rules that assigned each legal relationship to one particular state, regardless of
that states actual or imputed wish to apply its law, and regardless of that laws content. These
rules also placed foreign law on parity with forum law. Indeed, in Savignys cosmopolitan and
universalist milieu, there was no room for forum protectionism. He argued forcefully that the
objective of private international law should not be to promote the forums interests as such,
but rather to produce international uniformity of decisionsa regime that would eliminate
forum shopping altogether because all involved states would apply the same law to a particular
case, regardless of which states courts adjudicate thecase.
Savignys dream did not materialize, but his approach to conflicts is still considered the
classic approach in Europe and much of the rest of the world. It resembles the traditional
approach as well as some modern approaches followed in the United Statestoday.
E. THE DEARTH OF ENGLISH CONFLICTS

DOCTRINE
Up until the mid-1700s, the English common law courts did not assert jurisdiction over cases
that arose outside England.22 This had less to do with judicial self-restraint and more with the
English jury system. Jurors were drawn from the vicinage (i.e., the locale of the events giving
rise to the dispute) and, because the court could not impanel foreign jurors, foreign cases could
not be tried in England. Later on, the courts developed the legal fiction that somehow the foreign locale was situated in England, and thus assumed jurisdiction over cases arising abroad.
Consistent with this fiction, however, the courts applied English law to thesecases.
21. Savignys contribution to conflicts is contained in the 8th volume of his treatise on Roman law entitled System des heutigen Rmischen Rechts (1849). This volume was translated into English by William
Guthrie, under the title Private International Law, ATreatise on the Conflict of Laws and the Limits of Their
Operation in Respect of Place and Time (1869).
22. In contrast, the special courts for commercial and maritime matters exercised jurisdiction over disputes arising abroad. However, rather than resolving those disputes through a choice of law, these courts
applied the pan-European law merchant and the multinational, or anational, maritime law, respectively.
See Juenger, Multistate Justice2324.
52
Eventually, English courts dropped this fiction, openly asserted jurisdiction over cases with
foreign elements, and confronted the conflicts question for the first time. Faced with a dearth of
indigenous doctrine, English courts and writers turned to continental doctrine and borrowed
copiously from it. As Hubers doctrine was in vogue at the time, they imported it wholesale. His
passing reference to rights acquired under foreign law evolved into a full-fledged doctrine of
vested rights,23 which later found its way to the United States in the early twentieth-century
writings of Professor Joseph Beale.24
Until Beales time, however, American conflicts law had remained virtually immune from
English influence. Indeed, the relative dearth of mature English doctrine during the formative
period of American conflicts law, coupled with the existence at that time of a rich continental
tradition, explains why American conflicts law is one of the few branches of American law that
owes its origins to civilian sources.
F. EARLY AMERICAN CONFLICTS

LAW:JOSEPHSTORY
The author most responsible for this development was Joseph Story (17791845) who, for all practical purposes, is the intellectual father of American conflicts law. In 1834, Story published his
seminal Commentaries on the Conflict of Laws, whichthough not the first American conflicts
book25was the first comprehensive conflicts treatise in the English language. Faced with the dearth
of American conflicts cases and English choice-of-law doctrine, Story drew heavily from the rich
continental literature of the previous two centuries. He synthesized and systematically recast the
writings of dozens of continental authors as well as several judicial decisions from England and
especially Scotland. One theme running throughout Storys treatise was the unmistakable influence of Hubers axioms and comity principle. Story reformulated these axioms as follows:
[1.] [E]very nation possesses an exclusive sovereignty and jurisdiction within its territory
[and its laws] affect, and bind directly all property, whether real or personal, within
its territory and all persons, who are residents within it, and also all contracts
made, and acts done withinit.
[2.] [N]o state or nation can, by its laws, directly affect, or bind property out of its own
territory, or bind persons not resident therein.
[3.] [W]hatever force and obligation the laws of one country have in another, depend solely
upon the laws, and municipal regulations of the latter, that is to say, upon its own
proper jurisprudence and polity, and upon its own express or tacit consent. A state
may prohibit the operation of all [or of some] foreign laws, and the rights growing out
of them, within its own territories. When [its law is] silent, then, and then only, can
the question properly arise, what law is to govern in the absence of a clear declaration
of the sovereignwill.
23. See A. Dicey, A Digest of the Law of England with Reference to the Conflict of Laws (1896).
24. See infra 5356.
25. As noted earlier, the first American book was Samuel Livermores Dissertations. See supra note 4.
53
[4.] The real difficulty is to ascertain, what principles in point of public convenience ought
to regulate the conduct of nations on this subject in regard to each other . [T]he
phrase comity of nations is the most appropriate phrase to express the true foundation and extent of the obligation of the laws of one nation within the territories of
another. It is derived altogether from the voluntary consent of the latter; and is inadmissible, when it is contrary to its known policy, or prejudicial to its interests.26
Storys Commentaries exercised considerable influence, not only in the United States, but
also in Europe.27 The Commentaries, however, were no more than a broad outline of aspirational principles (albeit well-written). Although these principles helped American courts in
the early years, the courts needed more guidance. By the end of the nineteenth century, the
case law began developing in different directions, and no writer attempted to collect or systematize it. Francis Whartons one-volume treatise published in 187228 was rich in its discussion
of foreign authorities, especially continental writers, but thin in discussion of American cases.
Acourse on conflicts law was not taught in any American law school until 1893, when Joseph
H.Beale first introduced it at Harvard.
I I I . JO S E P H H . BEA L E A ND T HE
TRA D I T I O N A L C H O I CE-O F -L AW S Y S T EM
A. JOSEPH H.BEALE
Although Joseph Story established the broad principles of American conflicts law, it was Joseph
Beale who erected a system of conflicts law, albeit one that did not always conform to Storys
principles. Beale was an erudite and prolific scholar, who dominated the American conflicts
landscape for 50years.29 Not only did he establish the first conflicts course; but he also published the first conflicts casebook, a three-volume collection of 400 American and English
cases and 70 foreign cases translated into English.30 This casebook was adopted far and wide
for teaching conflicts law in most other American law schools. The third volume included a
summary of Beales conception of conflicts law, which was the foundation of his three-volume
Treatise published in 1935, a year after the promulgation of the Conflicts Restatement and
generally following its structure and sequence.31 By the 1920s, most American law schools
26. J. Story, Commentaries on the Conflict of Laws, 19, 21, 2425, 37 (1834).
27. For this influence, see Hay, Borchers & Symeonides, Conflict of Laws19.
28. See F. Wharton, A Treatise on the Conflict of Laws, or Private International Law:AComparative View
of Anglo-American, Roman, German, and French Jurisprudence (1872).
29. For a recent assessment of Beales work, see S. Symeonides, The First Conflicts Restatement through
the Eyes of Old:As Bad as Its Reputation?, 32 So. Ill. U.L. J. 39 (2007).
30. See J.H. Beale, Collection of Cases on the Conflict of Laws, 3 vols. (19001902). Another casebook
published in 1899 contained only 40 cases. See J.W. Dwyer, Cases on Private International Law (1899).
31. See J.H. Beale, A Treatise on the Conflict of Laws (vols. 13) (1935).
54
introduced conflicts courses in their curricula, and, largely because of Beales stature, conflicts
law was chosen as one of the first four subjects that the American Law Institute (ALI) decided
to restate. In the end, the first Conflicts Restatement was more of a pre-statement of Beales
views than a restatement of the caselaw.
Beales view of conflicts law was founded on two overarching principles:territoriality and
vested rights. The first principle identified the state whose law created a substantive right, and
the second explained why other states were mandated to enforce thatright.
B.TERRITORIALITY
Beale believed that the law is territorial, and he really meant all law. [T]here can be no law
in a particular state except the law of that state, and therefore a foreigner coming into that
state can by no means bring with him his personal law ; [he] is subject to the law of the state
as much as the nationals of the state.32 For Beale, this was an incontrovertible proposition, an
axiom. On this axiom, he built his entire theory:
Law operates by extending its power over acts done throughout the territory within its jurisdiction and creating out of those acts new rights and obligations. . . . It follows . . . that not only must
the law extend over the whole territory subject to it and apply to every act done there, but only
one law can so apply. . . . By its very nature law must apply to everything and must exclusively
apply to everything within the boundary of its jurisdiction.33
This premise became the cornerstone of the Conflicts Restatement, the first section of
which declared:
No state can make a law which by its own force is operative in another state; the only law in force
in the sovereign state is its own law, but by the law of each state rights or other interests in that
state may, in certain cases, depend upon the law in force in some other state or states.34
The same principle was then reiterated in other Restatement sections covering torts (the lex
loci delicti rule),35 contracts (the lex loci contractus rule),36 property (the lex rei sitae rule),37 and
virtually every other subject.
In Beales time, territoriality was by no means a new principle (although it was newer than
the opposite principle of personality of the laws); indeed, it was the favorite, if not the prevailing, principle in the Anglo-American world. Until Beale, however, neither the case law nor
the doctrinal writers had accepted this principle wholesale, nor did anyone regard it as the
32. J.H. Beale, A Treatise on the Conflict of Laws 52 (vol. 1) (1935).
33. Id. at4546.
34. Restatement (First) 1 (1934).
35. See id. 378 (The law of the place of wrong determines whether a person has sustained a legal
injury.).
36. See id. 332 (The law of the place of contracting determines the validity and effect of a [contract].).
37. See id. 208254.
55
exclusive foundation on which to build the entire system of conflicts law. Beales territorialist
system allowed for much fewer personal exceptions than most continental systems, which
had adopted the personality principle for most matters of capacity, personal status, and succession atdeath.
In the abstract, the principle of territoriality begged two important questions. First, which
territorial state should supply the applicable law? Second, if it is a state other than the forum,
why would or should the forum apply that law? If, as Beale argued, [n]o law is administered as
such by the courts except [its] territorial law,38 why should the forum apply another states territorial law? Beale answered the first question by choosing a priori a state that had a particular
designated territorial contact, such as the occurrence of the injury in torts, or the dispatch of
the acceptance in contracts.39
C.VESTEDRIGHTS
Regarding the second question, Beale rejected Storys answer, which was based on the principle
of comity, and adopted instead the vested rights theory proposed earlier by the English author
Arthur V.Dicey.40 Focusing on the designated contact or event, Beale reasoned:
The [territorial] law annexes to the event a certain consequence, namely, the creation of a legal
right. . . . When a right has been created by law, this right itself becomes a fact; . . . [T]he existing
right should everywhere be recognized; since to do so is merely to recognize the existence of a
fact. A right having been created by the appropriate [i.e., territorial] law, the recognition of its
existence should follow everywhere. Thus an act valid where done cannot be called in question
anywhere.41
The vested rights theory provided the philosophical rationalization for the entire
Restatement. For example, in statements premised on the assumed inevitability of this theory,
the Restatement proclaimed:
1. If a cause of action in tort is created at the place of wrong, a cause of action will be
recognized in other states.
2. If no cause of action is created at the place of wrong, no recovery in tort can be had in
any other state.42
By separating rights from the law that created them, Beale could declare that the forum
does not really apply foreign law. Rather the forum takes cognizance of the fact that a foreign law created a right and then recognizes it under the forums own law.43 Despite its many
38. See J.H. Beale, A Treatise on the Conflict of Laws 52 (vol. 1) (1935).
39. See Restatement (First) 377 and326.
40. See A.V. Dicey, A Digest of the Law of England with Reference to the Conflict of Laws, 22 (1896).
41. J.H. Beale, A Treatise on the Conflict of Laws 1969 (vol. 3) (1935).
42. Restatement (First)384.
43. See Beale, supra note 32,at53.
56
flaws,44 the vested rights theory was in some respects a modest advancement from Storys
comity theory. Rather than relegating the choice-of-law decision to the courts potentially
unfettered discretion, the vested rights theory turned this choice into a legal obligation.
In this sense, the vested rights theory was more deferential to foreign law than was Storys
quasi-legal, quasi-diplomatic, quasi-policy-oriented concept of comity.45 The irony is that
Beale was clearly not an internationalist and, in fact, he was far less cosmopolitan thanStory.
The problem was that, while the comity theory may have given courts too much discretion
in refusing to apply foreign law, the vested rights theory gave them no discretion at all. Worse
yet, it often mandated the application of the wrong law, such as the law of a state that had only
a tenuous or fortuitous contact with the case, or of a state that had no true interest in the outcome (i.e., what is known today as a false conflict).
I V. TH E F I R S T C O N F L I CT S R ES TAT EM ENT
A. SOME OFTHE RESTATEMENTSFLAWS
Beales view of conflicts law did not remain unchallenged during his own time, especially from
the then-emerging legal realist school.46 However, Beales views prevailed where it mattered
mostin the American Law Institute, which adopted his draft Restatement with virtually no
amendments.47 The academic criticisms continued after the Restatements promulgation in
1934 and have intensified ever since. Gradually, the Restatement became the favorite punching
bag of virtually every conflicts teacher and writer. Indeed, the Restatement was an easy target,
rife with many flaws. The following are some of the most general and serious:
(1) The Restatement was a system of detailed, mechanical and rigid rules that:(a)completely sacrificed flexibility on the altar of ostensible certainty and predictability, which
eventually proved illusory; (b)ignored the lessons of experience, in favor of the pursuit
of an ill-conceived theoretical purity; and (c)completely eliminated judicial discretion,
even as they purported to be a distillation of the courts experience.
(2) Like Beale, the Restatement relied exclusively and excessively on two principles
territoriality and vested rightsdeducing virtually all of its rules from these principles,
44. Beales artificial construct was full of holes, but it was no more artificial than the local law theory
proposed by Walter W.Cook, one of Beales arch-critics at the time, who argued that the forum enforces
not a foreign right but a right created by its own law, though modelled after the applicable foreign law.
See W. Cook, The Logical and Legal Bases of the Conflict of Laws 2021 (1942). Thus, while Beales theory
separated foreign law from the rights it created, and then treated them as facts, Cooks theory simply
recreated the foreign rights under the law of theforum.
45. A. Riles, A New Agenda for the Cultural Study of Law:Taking on the Technicalities, 53 Buff. L.Rev.
973, 992 (2005).
46.Beales main critics were three well-known legal realists: Walter W. Cook (18731943), Ernest
G.Lorenzen (18761951), and Hessel E.Yntema (18911966), as well as David F.Cavers (19031988),
who was one of Beales students. For a summary and assessment of their criticisms, see Symeonides, supra
note 29, at6265.
47. For a discussion of the ALI meetings and the whole process and background of adopting the First
Restatement, see id. at6674.
57
while disregarding contrary case law. Beale and his fellow drafters saw the world as a
neatly laid out, black-and-white chessboard in which the critical event would always
occur entirely in either a black or a white square. Reality is never so simple. Beale
never accepted the proposition that in some cases, for some issues, the law of a persons
home state may have a legitimate claim of application (personality principle), even if
the dispute is triggered by events occurring in another state. Beale thought that territoriality was the modern and personality the medieval principle. Had he been a better
student of history or a better comparatist, he would have realized that any system that
completely banishes either one of these two grand principles will inevitably run into an
impasse, and that the key is to know when and how to compromise them.48
(3) The Restatements choice-of-law rulesdespite their namewere not designed to choose
among conflicting laws, but instead a priori assigned legislative jurisdiction to a particular state.49 The assignment was based solely on a single, predesignated, territorial contact.
Subject only to limited post-choice exceptions, the law of the designated state applied
almost automatically, regardless of its content, its underlying policy, or the substantive
quality of the solution it would bring to the case at hand. All that mattered was whether
that state had the specified contact, even if its presence there was entirely fortuitous, and
even if that state had no real interest in the outcome. As David Cavers observed as early
as 1933, the Restatement was not much different from a slot machine programmed to
find the right state in a blindfolded and random fashion.50 Indeed, the Restatements
goal was to find what it considered the spatially-appropriate law (conflicts justice),
rather than to ensure a substantively-appropriate result in the particular case (material
justice).51 It did not occur to Beale and his fellow drafters that, to intelligently resolve
any conflict, one must first ascertain what the conflict is about, and what the conflicting
objectives and claims are. In turn, this requires looking into the content of the potentially
conflicting laws, identifying their purposes or policies, and then proceeding fromthere.
B. THE RESTATEMENTS CONTRIBUTIONS

Nevertheless, despite its many flaws, the Restatement did make some positive, albeit modest,
contributions, including the following:
(1) The Restatement raised the level of awareness about, and knowledge of, conflicts law
among the members of the bar and the bench. There is little doubt that, had it not been
for Beales stature in the 1920s, conflicts law would not have been included among
48. For a discussion of this point, see S. Symeonides, Territoriality and Personality in Tort Conflicts, in
T. Einhorn & K. Siehr (eds.), Intercontinental Cooperation through Private International Law: Essays in
Memory of Peter Nygh 401 (2004).
49. For a thorough discussion of this jurisdiction-selecting feature of the Restatement, see D. Cavers, A
Critique of the Choice-of-Law Problem, 47 Harv. L.Rev. 173 (1933).
50. See id. at 19192.
51. See S. Symeonides, Material Justice and Conflicts Justice in Choice of Law, in P. Borchers & J. Zekoll
(eds.), International Conflict of Laws for the Third Millennium:Essays in Honor of Friedrich K.Juenger 125
(2000).
58
the first Restatements. Because of Beale and the Restatement, the then-prevailing
pedagogical neglect52 of conflicts law gave way to a renewed interest in the subject.
Conflicts law gained its rightful place in the curriculum of all American law schools,
which, in turn, made possible the renaissance of American conflicts law during the
next generation.
(2) The Restatement unified American conflicts law, which until then had been scattered
in the law reports, some of which were not widely available. For the first time, it was
possible to speak of a single American conflicts law, despite variations from state to
state. Ironically, this unification, besides the Restatements content, both caused and
facilitated the conflicts revolution.
(3) The Restatement was a comprehensive and complete system. It provided a complete,
organized, and disciplined network of bilateral, fixed, neutral, and detailed choice-
of-law rules designed to provide solutions for all possible conflicts situations. This
was the first time such a comprehensive and complete work on conflicts law had
been produced on American soil. According to one contemporary commentator, the
Restatement was a system, something tangible out of the chaos of cases, a point of
departure, a beginning, systematic, rational, and withal not inconsistent with what is
implicit in most American precedents and explicit in many of the decisions of the last
twenty years.53
(4) The Restatement was non-parochial, even if it was not particularly internationalist. It
was non-parochial in that, unlike most of the American approaches proposed since
then (but not before), the Restatement did not give preference to the forum state
qua forum. The Restatement purported to be, and in many respects was, impartial
vis--vis forum and foreign law. Its explicit aspiration was to eliminate (or curtail)
forum shopping and to foster international or interstate uniformity of result by ensuring that a case would be resolved in the same way regardless of where it was litigated.
That this aspiration has never been fully realized is another matter.
C. SOME OFTHE RESTATEMENTS SPECIFICRULES

1. Torts and Contracts
The Restatement consists of 625 black-
letter sections accompanied by explanatory comments and illustrations, and arranged in 12 chapters covering all three parts of conflicts law
jurisdiction, choice of law, and recognition of judgments. However, the most consequential
part of the Restatement, as well as the one that attracted the most criticism, is the part on
choice of law and, within that part, the rules on torts and contracts.
As noted earlier, the Restatement categorically and inexorably assigned all tort conflicts to
the exclusive legislative jurisdiction of the law of the place of wrong (lex loci delicti).54 The
Restatement was equally categorical in defining the place of the wrong as the place where the
52. See W.D. Lewis, Introduction to the Restatement, in American Law Institute, Restatement of the
Law:Conflict of Laws, xiiixiv (1934).
53. F.L.de Sloovre, On Looking into Mr. Beales Conflict of Laws, 13 N.Y.U. L.Q. 333, 345 (1936).
54. Restatement (First) 384.
59
last event necessary to make an actor liable for an alleged tort takes place.55 In characteristic
detail, this was further defined as the place in which the harmful force or deleterious substance takes effect upon the body and, in cases of harm to the reputation, the place where the
defamatory statement is communicated.56
For contracts, the Restatement provided an equally sweeping rule. The law of the place
where the contract was made (lex loci contractus)which was defined as the place where
the second promise is made in consideration of the first promise57 or the place from which
the acceptance of an offer was sent58governed virtually all issues, that is, not only issues of
form, but also contractual capacity, mutual assent or consideration, fraud, illegality, and any
other circumstances that make a promise voidable.59 Thus, the Restatements version of the lex
loci contractus rule had a much broader scope than its civil law counterpart. Only matters of
performance, such as the manner, time, place, and sufficiency of performance, and the permissible excuses for nonperformance, were assigned to the law of the place of performance (lex
loci solutionis).60 More importantly, the Restatement did not recognize even a limited version of
party autonomy, that is, the principle that the parties had the power, within certain limits, to
choose the law that would govern their contract. In Beales view, to recognize this power would
be tantamount to granting them a license to legislate.61

In areas other than torts and contracts, the Restatement was equally dominated by jurisdiction-
selecting, territorially based, and usually inexorable choice-of-law rules. Chapter 7 of the
Restatement, covering matters of property, marital property, and successions, is typical in this
respect. The chapter adopts the civil-law division into movables and immovables, and provides
that most issues pertaining to immovables are governed by the law of the place where the
immovable is situated (lex rei sitae), virtually without any exceptions.62 Again, a perusal of the
55. Id.377.
56. Id. atNote.
57. Id.325.
58. Id.326.
59. Id.332.
60. Id.358.
61. See J.H. Beale, Treatise on the Conflicts of Laws 1080 (vol. 2) (1935) (at their will [parties] can free
themselves from the power of the law which would otherwise apply to their acts.).
62. Thus, the law of the situs applied to: (1) the substantive and formal validity of a conveyance of an
interest in land (id. at 215, 217), the effect and interpretation of the conveyance ( 220, 214), and the
capacity of the grantor and the grantee ( 216, 219); (2)to transfers by operation of law and acquisition
through adverse possession or prescription ( 223224); (3)to the validity, effect, and enforcement of
mortgages ( 225231); (4)to the effect of marriage upon immovables owned by a spouse at the time
of marriage ( 237)or acquired by either or both spouses during the marriage ( 238); and the effect of a
divorce or the death of either spouse upon such immovables ( 248); (5)to all issues of intestate succession to land ( 245), including the right of illegitimate and adopted children to inherit and the extent of
their share ( 246247); and (6)to most issues of testate succession to land, including the validity, effect,
and revocation of a will ( 249250).
60
chapter reveals that the Restatements version of the situs rule had a vastly broader scope than
the corresponding rule of other countries.63
Under the Restatement, the situs rule also applied to movables, but only with regard to
inter vivos transactions. Thus, the formal and substantive validity of a conveyance of an interest
in a chattel was governed by the law of the state where the chattel is at the time of the conveyance.64 In the area of marital property and successions, the Restatement shifted gears and
resorted to the law of the domicile. Thus, the law of the husbands domicile at the time of marriage determined the rights of both spouses to movables then owned by either spouse, while the
law of the spouses common domicile determined their respective rights in movables acquired
during marriage.65 In successions, both testate and intestate, the pertinent domicile was the
decedents domicile at the time of death.66 This rule was thought to be consistent with the
decedents expectations by allowing all of her movables to be treated as a single unit, regardless
of where situated. However, this otherwise sound principle was not extended to immovables.67
D. THE RESTATEMENTS FOLLOWING

Despite its many flaws, the Restatement was adopted with varying degrees of enthusiasm in
virtually all states in the United States. Such a consensus is a rare phenomenon (at least in
conflicts law) and is unlikely to be repeated. The Restatement dominated American conflicts
law for more than a generation and continued to command a majority of states as late as 1979
in tort conflicts, and as late as 1984 in contract conflicts.68
Although one might interpret this widespread acceptance as a validation of the Restatements
quality, other explanations are more plausible. American courts accepted the Restatement
because it was the only option available, and because it was comprehensive and complete. Most
courts encounter conflicts cases only infrequently, and thus do not have the opportunity or the
incentive to develop the necessary expertise in this subject. Judicial experience with any given
choice-of-law problem is usually more episodic than with analogous domestic-law problems.69
As one commentator noted, [j]udges are not stupid, just busy.70 They do not have the time to
read and evaluate the numerous conflicting academic commentaries. In their busy minds, the
availability of an authoritative-sounding document such as the Restatement, which bears the
prestigious imprimatur of the ALI, obviates the need to look elsewhere.
In any event, the courts allegiance to the Restatement did not run as deep as the numbers
might suggest. In a relatively short time, courts began deviating from the Restatements dictates
by employing various escape devices, such as characterization, renvoi, and the public policy
64. Restatement (First) 255257.
65. See id. 289290.
66. See id. 300310.
68. See Symeonides, Choice-of-Law Revolution 1011, 37 etseq.
69. A.T.von Mehren, Recent Trends in Choice-of-Law Methodology, 60 Cornell L.Rev. 927, 966 (1975).
70.R. Weintraub, Courts Flailing in the Waters of the Louisiana Conflicts Code: Not Waving but
Drowning, 60 La. L.Rev. 1365, 1366 (2000).
61
exception.71 As Cavers predicted, neither [Beales] Treatise nor [his] Restatement can mechanize judgment.72 The first overt departures from the Restatement occurred in 1954, when the
NewYork Court of Appeals rejected the lex loci contractus rule,73 and in 1963 when the same
court rejected the rule of lex loci delicti.74 This was the beginning of the American conflicts
revolution, which is discussed in Chapters57.
At the time of this writing (2015), 10 states continued to follow the traditional theory in
tort conflicts,75 and 12 states do so in contract conflicts.76 The two groups are not identical.
For example, Florida, Oklahoma, Rhode Island, and Tennessee have abandoned the traditional
theory in tort conflicts, but not in contract conflicts, while North Carolina and West Virginia
have done the reverse. In any event, it would be a mistake to assume that either these or the
other states are equally committed to the status quo, or that they will remain so for the same
length of time.77
71. See infra 6886.

72. D. Cavers, Restatement of the Law of Conflict of Laws, 44 Yale L.J. 1478, 1482 (1935).
73. See Auten v.Auten, 124 N.E.2d 99 (N.Y. 1954). For an earlier case refusing to follow the lex loci contractus rule, see W.H. Barber Co. v.Hughes, 63 N.E.2d 417 (Ind.1945).
74. See Babcock v.Jackson, 191 N.E.2d 279 (N.Y. 1963), discussed infra 12427.
75. These states are:Georgia, Kansas, Maryland, New Mexico, North Carolina, South Carolina, Virginia,
West Virginia, and Wyoming.
76.These states are: Alabama, Florida, Georgia, Kansas, Maryland, New Mexico, Oklahoma, Rhode
Island, South Carolina, Tennessee, Virginia, and Wyoming. In areas other than torts and contracts, the
traditional approach continues to be followed in many more, if not most, states.
77.For discussion of recent precedents from each of these states, see Symeonides, Choice-of-Law
Revolution5162.
four
The Structure ofChoice-of-

Law Rules and theOperation
ofthe Choice-of-Law
Process
This chapter discusses the structure of choice-of-law rules and the mechanics of the choice-of-
law process, particularly, but not only, under the First Restatement.1 The reason for focusing on
the First Restatement is that it had a clear, albeit rigid, structure. Understanding this structure
is essential for understanding the mechanics of choice of law under other rule-systems, such as
those in force in most other countries. It is also helpful in understanding the modern choice-
of-law approaches (to be discussed later) that grew out of the subsequent rejection of the First
Restatement. This includes the Restatement (Second), which preserved the structure of the
First Restatement, but made it much more flexible by replacing the First Restatements rules
with softer, equivocal, or presumptiverules.
After examining the components of typical choice-of-law rules, the mental steps in applying
them, and the various exceptions or escapes available in each step, this chapter turns to a most practical issue in the operation of any choice-of-law systemjudicial notice and proof of foreignlaw.
I I . T H E C H O I C E -O F -L AW R UL E
A N D I T S C O M PONENT S
In designating the law that governs multistate cases, traditional systems, such as the First
Restatement, employ choice-of-law rules formulated around broad categories borrowed
1.Basic bibliography for the topics discussed in this chapter includes Hay, Borchers & Symeonides,
Conflict of Laws 14275; Felix & Whitten, American Conflicts Law 21594; Weintraub, Commentary
55128.
63
64
from domestic law, such as torts, contracts, conveyances, successions, status, etc. The
rules of the various systems differ in their specifics, but they all consist of three basic
components:
(1) the legal category that is the object of the rule (e.g., tort, contract,etc.);
(2) the applicable law (e.g., lex loci delicti, or lex loci contractus);and
(3) the connecting factor (locus delicti, locus contractus), which connects the legal category or problem with the state that supplies the applicablelaw.
Modern systems, such as the Restatement (Second) and recent conflicts codifications,
employ rules or approaches that:(1)are more flexible than the traditional rules, (2)are constructed around narrower categories or issues, (3)use multiple or soft connecting factors, and
(4)generally are far less categorical in designating the applicable law. Nevertheless, the basic
choice-of-law syllogism is fundamentally the same in both the traditional systems, such as the
First Restatement, and modern rule-based conflicts systems.
The choice-of-law syllogism typically proceeds in the three distinct mental steps, described
below, which correspond to the three components of the choice-of-lawrule:
(1) Characterization (or qualification). The first step is to determine which choice-of-law
rule is principally applicable to the case at hand, by fitting the case into a legal category
of tort, contract, and so forth, employed by therule.
(2) Localization. The second step is to localize the connecting factor, that is to place it on
the map, by determining where the tort occurred or the contract was made. Although
this is largely a factual inquiry, it is aided by certain localization sub-rules, such as that
a contract is deemed made at the place of acceptance, or that a tort occurs at the place
of the injury rather than at the place of conduct.
(3) Application. The third step consists of several smaller steps:ascertaining the content of the law of the state in which the connecting factor is located, determining
how much of that law is applicable to the case, examining whether any exceptions to its application are operable, and, eventually, applying that law to the case
at hand.
Each step offers different opportunities for exceptions, escapes, or manipulations. Judges
who disagree with the results dictated by a particular rule tend to seek ways to avoid it. This
was particularly true with the rules of the First Restatement; so much so, that the above three
steps of the choice-of-law syllogism continue to be taught in many American law schools
under the heading of escape devices. This phraseology represents an unnecessarily negative and
narrow conception. For example, the fact that occasionally (or even often) American judges
have manipulated the characterization step under the First Restatement does not mean that
characterization is an escape. Rather, it means that characterization is a process that does not
guarantee unanimity.
There is, however, a close correlation between the quality of a choice-of-law rule and the
frequency with which judges seek to avoid it. In this sense, the frequent use of escapes by
courts following the First Restatement may be an indication of the poor quality of its rules. The
problem is that the use of escapes, as opposed to a more direct and candid analysis, is at best a
short-term solution because it simply prolongs the life of bad choice-of-lawrules.
The Structure of Choice-of-Law Rules
65
I I I . C H A R A C T ER I Z AT I ON
The characterization or qualification process is not peculiar to conflicts law.2 It is encountered
in applying any legal rule, foreign or domestic. In domestic cases, characterization is easier,
because it is conducted exclusively under a single law and usually is facilitated by available
precedent. In multistate cases, characterization is more difficult due to the involvement of foreign law or laws and the relative dearth of precedent.
Under the First Restatementas with any system that depends on rigid rules based on a
single connecting factorcharacterization played a crucial role in the final outcome, as it determined the applicable choice-of-law rule and thus the applicable law. For example, in a dispute
between contractually related parties, one of whom claimed to have suffered injury by the acts
of the other, the court could characterize the case either as one in contract or tort. The courts
choice would determine whether the applicable rule would be the lex loci contractus rule, which
would lead to the law of the state where the contract was made, or the lex loci delicti rule, which
would lead to the law of the state where the injury occurred. When these laws differed, many
courts gave in to the temptation of starting their analysis from the back endfirst choosing the
applicable law and then constructing the characterization that justified that choice.
One can find numerous examples of manipulative uses of the characterization process, especially in the second half of the twentieth century. An earlier example that predates the Restatement
is Levy v.Daniels U-Drive Auto Renting Co.3 In Levy, a Connecticut court applied Connecticuts pro-
recovery law to a dispute between Connecticut parties, but arising from a Massachusetts accident,
after characterizing the plaintiff s action as one in contract rather than tort. The contract in question was a lease by which the defendant car owner leased the accident car to another Connecticut
domiciliary, the driver. AConnecticut statute, if applicable, would have made the lessor liable under
such circumstances. The court partly based its decision on an examination of the purpose of the
statute, a factor that was not supposed to be relevant under the traditional methodology.
Another example is Haumschild v.Continental Casualty Co.,4 which involved an action by a
Wisconsin plaintiff against her husband and his insurer for injuries she suffered in a California
2.For more extensive discussion of characterization in American conflicts law, see Hay, Borchers &
Symeonides, Conflict of Laws 14549; Weintraub, Commentary 5662. For the rest, the American literature on characterization is old, but still relevant. See, e.g., W.W. Cook Characterization in the Conflict
of Laws, 51 Yale L.J. 191 (1941); J.M. Cormack, Renvoi, Characterization and Preliminary Question in
the Conflict of Laws, 14 So. Cal. L.Rev. 221 (1941); A. Ehrenzweig, Characterization in the Conflict of
Laws: An Unwelcome Addition to American Doctrine, in K. Nadelmann, A. von Mehren & J. Hazard
(eds.), XXth Century Comparative and Conflicts LawLegal Essays in Honor of Hessel E. Yntema 395
(1961); M. Hancock, Three Approaches to the Choice-of-Law Problem:The Classificatory, the Functional,
and the Result Selective, in K. Nadelmann, A.von Mehren & J. Hazard (eds.), XXth Century Comparative
and Conflicts LawLegal Essays in Honor of Hessel E.Yntema 365 (1961); F.V. Harper, Torts, Contracts,
Property, Status, Characterization, and the Conflict of Laws, 59 Colum. L.Rev. 440 (1959); E. Lorenzen,
The Qualification, Classification and Characterization Problem in Conflict of Laws, 50 Yale L.J. 743
(1941); E. Lorenzen, The Theory of Qualifications and the Conflict of Laws, 20 Colum. L.Rev. 246 (1920);
R.J. Weintraub, The Impact of a Functional Analysis upon the Pervasive Problems of the Conflict of
Laws, 15 U.C.L.A. L.Rev. 817 (1968).
3. 143 A.163 (Conn.1928).
4. 95 N.W.2d 814 (Wis.1959).
66
traffic accident caused by the husband. Wisconsin law allowed the action, while Californias
interspousal immunity rule barred it. Reasoning that the purpose of the California rule was to
preserve interspousal harmony, the Wisconsin court characterized the issue in question as
one involving family law. This characterization allowed the court to apply the law of the parties
common domicile, Wisconsin, which preserved the wifes action.
The long-term importance of these cases was not that they manipulated the characterization process, but that, in doing so, they moved the choice-of-law inquiry in more fruitful directions. They did so by:(1)narrowing the focus of the choice-of-law inquiry from the whole case
to the precise issue with regard to which the involved state laws conflicted, and (2)examining
the purposes or policies of the conflicting laws. In time, this led to two of the important breakthroughs of modern choice-of-law approaches: issue-by-issue analysis, and content-oriented
law selection (as opposed to jurisdiction selection).
Under the Restatement (Second), characterization remains a necessary step because one
still needs to determine, for example, whether the case falls under the torts or the contracts
chapter of the Restatement. The difference is that this step is far less crucial, because most of
the rules of the Restatement (Second) are quite equivocal and do not inexorably point to a particular law. For this reason, there is little temptation to manipulate the characterization process
under the Restatement (Second).
Even so, uniformity of outcome, which was supposed to be one of the grand aspirations
of conflicts law, remains elusive. For example, Connecticut cases involving the same statute as
the one in Levy, and decided after Connecticut abandoned the lex loci delicti in favor of the
Restatement (Second), have uniformly characterized the issue as one of tort, but they reached
irreconcilable results.5 Also, courts confronting cases involving similar statutes in other states
have uniformly characterized these statutes as tort statutes, but have encountered a new characterization questionwhether the purpose of those statutes is to regulate the car owners conduct
(conduct-regulating rules) or to ensure compensation for injured third parties (loss-allocating
rules).6 This new distinction of tort rules is discussed later,7 but the difficulty in applying it serves
as a reminder that characterization problems have not disappeared under the modern approaches.
One remaining technical question is whether the characterization process should be conducted under the lex fori or under the foreign law applicable to the case (lex causae). This
question was hotly contested in international literature,8 but it did not receive much attention
from American authors. Colonial Life & Accident Insurance Co. v.Hartford Fire Insurance Co.9
is one of the few cases that explicitly confronted this question. In this case, the plaintiff sued his
insurer for bad faith insurance practices, which had occurred in the forum state of Alabama.
The lower court noted that: (1) under Alabama precedent, the action was one in contract;
and (2) under Alabamas lex loci contractus rule, the case would be governed by the law of
South Carolina, where the underlying insurance contract was made. However, because South
Carolina would characterize this as a tort action, and would apply Alabama law under South
Carolinas lex loci delicti rule, the lower court felt bound to follow the same route and apply
Alabamas substantive law, which did not allow the action. Rejecting this logical contortion,
5. See Symeonides & Perdue, Conflict of Laws5455.
6. See Symeonides, Choice-of-Law Revolution 134, 20203, 22122, and 22426.
7. See infra 17790.
8. For a summary pf the proposed solutions, see Symeonides & Perdue, Conflict of Laws56.
9. 358 F.3d 1306 (11th Cir.2004).
67
the Court of Appeals reversed. There is no Catch 22, said the court, because an Alabama
court should be concerned solely with Alabamas characterization of the claim. Whether South
Carolina bases an analogous cause of action in tort, contract, or statutory law is irrelevant.10
The position of the Court of Appeals is consistent with the First Restatement, which provided that in all cases where as a preliminary to determining the choice of law it is necessary
to determine the character of legal ideas, these are determined by the forum according to its
law.11 The Restatement (Second) provides that, with some exceptions,12 [t]he classification and
interpretation of Conflict of Laws concepts and terms are determined in accordance with the law
of the forum, while the classification and interpretation of concepts and terms employed by the
applicable law (lex causae) are determined in accordance with that law.13 The Oregon codification,
along with more than a dozen foreign codifications, assigns this question to the lex fori (subject to
exceptions).14 Most other codifications avoid this question, leaving it instead to academic doctrine.
I V. L O C AL I Z AT I ON
Most of the First Restatements rules utilized a single connecting factor, such as the place of
injury for torts, or the place of making for contracts. The applicable law depended exclusively
on the location of that factor, thus raising the temptation for manipulation. For example, determining where a contract was made depended on which promise was deemed to be the offer
and which the acceptance, and then where the latter was made. It is unnecessary to recite here
the numerous cases that either struggled with, or manipulated, the localization process. Suffice
it to say that sometimes localization is a genuinely difficult inquiry. This is particularly true
when the connecting factor is peripatetic. Examples from recent experience include product
liability cases involving pharmaceuticals or other products with latent defects that were used
by the victims over a long period of time while residing in several states.15
10. Id. at 1309 (internal quotations omitted). For a similar and recent holding by the Alabama Supreme
Court, see Precision Gear Co. v.Contl Motors, Inc., 135 So. 3d 953 (Ala. 2013)(holding that Alabama
law determined the characterization of an indemnification claim for statute-of-limitation purposes, and
that Oklahomas different characterization was irrelevant).
12. The exceptions apply in the few situations in which the Restatement (Second) authorizes a renvoi
namely, the application of the choice-of-law rules of the lex causae. See infra 76.
13. Restatement (Second)7.
14. The Oregon statute for tort conflicts provides that the lex fori determines whether a case qualifies as
a tort so as to fall within the scope of that statute, but the lex causae determines the scope and meaning
of terms used by the lex causae. See Or. Rev. St. 15.410 (2015). The codifications of Armenia (art. 1254),
Belarus (art. 1094), Bulgaria (art. 39), China (art. 8), Hungary (art. 3), Kyrgyzstan (art. 1168), Macau
(art.14), Moldova (art. 1579), Portugal (art. 15), Puerto Rico (draft art. 5), Quebec (art. 3078), Romania
(art. 3), Russia (art. 1187), Spain (art. 12.1) and the United Kingdom ( 9.2 of statute for tort conflict)
assign the characterization question to the lex fori, but most of them also provide an exception in favor of
the lex causae for terms that are unknown to the lex fori. Also, the characterization of a thing situated outside the forum state as movable or immovable is determined under the lex rei sitae, rather than the lexfori.
15. See, e.g., Braune v.Abbott Labs., 895 F.Supp.530 (E.D.N.Y. 1995)and Millar-Mintz v.Abbott Labs.,
645 N.E.2d 278 (Ill. App. Ct. 1994) (involving a pharmaceutical known as DES, which was prescribed
to pregnant women in the 1950s and caused injuries to those women and then to their adult daughters,
while the victims were domiciled in different states). See also Philip Morris, Inc. v.Angeletti, 752 A.2d
68
The Restatement (Second) avoids most of these difficulties by using multiple and softer
connecting factors. For example, regarding torts, the place of injury remains a connecting factor, but it is only one on a nonexclusive list, which includes the place of conduct, the domicile,
residence, or principal place of business of the parties, and the place of their relationship, if
any.16 Similarly, for contracts, the place of contracting is simply one connecting factor on a
nonexclusive list, which includes the places of negotiation and performance of the contract, the
location of the subject matter, and the domicile, residence, or place of business of the parties.17
Moreover, the phrasing of the Restatement (Second) permits the choice-of-law inquiry to go
forward, even if some factors cannot be precisely localized. Under these circumstances, there is
little temptation to manipulate the localization process under the Restatement (Second).
V. T H E A P P L I C AT I ON OF T HE
D E SI G N AT E D L AW A ND I T S EXCEPT I ONS
While the characterization step identifies the applicable choice-of-law rule, the localization
step identifies the state whose law will govern the case or issue under that rule. If that state is
one other than the forum, then the court may examine (for the first time) the content of that
states law and ask certain questions before applying it. For example, should the court apply
the whole law of the identified state, including its procedural and conflicts law? What if the
applicable foreign law is penal, or its application would offend the forums public policy? This
section explores the questions encountered in this third step of the choice-of-law process.
A. SUBSTANCE VERSUS PROCEDURE

The first question involves the basic dichotomy between substantive and procedural law.18 As
the First Restatement stated, [a]ll matters of procedure are governed by the law of the forum.19
Thus, the forum will not apply the procedural rules of the otherwise applicable foreign law.
The First Restatement explained that, because the application of those rules would be impractical, inconvenient, and costly, [a] limitation upon the scope of the reference to the foreign law
200 (Md. 2000), and Tune v.Philip Morris, Inc., 766 So. 2d 350 (Fla. Dist. Ct. App.2000) (actions against
tobacco manufacturer brought by plaintiffs who used tobacco products for many years, while domiciled
in different states). Products liability cases are discussed in Chapter9,infra.
16. See Restatement (Second) 145.
17. See id. at188.
18.Methodologically, this question may also be asked in the characterization step of the process.
Characterizing certain issues as procedural in the first step of the process ends the choice-of-law inquiry,
even before the localization step, because the law of the forum automatically governs all procedural issues.
For additional discussion of the substance versus procedure dichotomy for choice-of-law purposes, see
Hay Borchers & Symeonides, Conflict of Laws 15162; Weintraub, Commentary 6295; W.W. Cook,
Substance and Procedure in the Conflict of Laws, 42 Yale L.J. 333 (1933); A. Twerski & R.G. Mayer,
Toward a Pragmatic Solution of Choice-of-Law Problems:At the Interface of Substance and Procedure,
74 N.W. L.Rev. 781 (1979).
69
is necessary. This limitation excluded those phases of the case which make administration
of the foreign law by the local tribunal impracticable, inconvenient, or violative of local policy.20
The Restatements drafter, Professor Beale, offered a balancing test that might have been
implicit in the Restatement:If the practical convenience to the court in adopting the local rule
of law is great, and the effect of so doing upon the rights of the parties is negligible, the law of
the forum will be held to be controlling.21 The test may be plausible, but its application was far
from simple. Drawing a bright line between substance and procedure is a difficult exercise in
domestic, federal, and conflicts law, because, more often than not, the substantive shades off
by imperceptible degrees into the procedural.22
Undaunted, the Restatement offered what purported to be an exhaustive list of subjects
classified as procedural. Among them were:which court can entertain the action ( 586), the
form of the action ( 587), who may and who must be sued ( 588), methods of serving process
( 589), methods of securing obedience to the court ( 590), at what moment the action began
( 591), all matters of pleading and the conduct of proceedings in court ( 592), whether a
claim of a defendant may be pleaded by way of setoff or counterclaim ( 593), whether an issue
of fact shall be tried by the court or by a jury ( 594), the proof in court of a fact alleged, as
well as presumptions and inferences to be drawn from evidence ( 595), the competency and
credibility of witnesses ( 596), admissibility of a particular piece of evidence ( 597), matters
pertaining to the execution of judgments ( 600), whether the plaintiff must be free of fault in
order to maintain an action ( 601), whether compliance with a certain form is a prerequisite
for filing an action (statute of frauds) ( 602), statutes of limitation ( 603605),23 limitations
by forum law on the amount of recovery ( 606), and access to courts ( 607620).
Opinions differ as to whether all of the above issues are actually procedural. Indeed, many
of the cases applying the First Restatement have disagreed, by either contracting or expanding
this list. A notorious example from the latter group is Kilberg v. Northeast Airlines, Inc.,24 in
which the NewYork Court of Appeals characterized the amount of damages as a procedural
matter. Thus, the court felt free to ignore the law of Massachusetts, the state of injury, which
limited the amount of damages, and to allow unlimited damages under NewYork law. Another
example is Grant v.McAuliffe,25 in which the California Supreme Court characterized as procedural an Arizona rule that barred a tort action against a tortfeasor who died before the filing of
the suit. The court thus held that rule inapplicable in a California action involving California
parties, but arising from an Arizona accident.
The Restatement (Second) states that a court usually applies its own local rules prescribing how litigation shall be conducted,26 and then provides several examples of issues that fall
within this category. However, the Restatement wisely avoids any attempt to supply an exclusive or even comprehensive list of procedural issues or rules. Instead, the Restatement calls
for an examination of the policies embodied in each rule of law claimed to be applicable to a
20. Restatement (First), Intro. Note to Chapter12, at 70001.
21. J.H. Beale, A Treatise on the Conflict of Laws 15991600 (vol. 3,1935).
22. W. Cook, The Logical and Legal Bases of the Conflict of Laws 166 (1942).
23. Statutes of limitation are discussed in Chapter13,infra.
24. 172 N.E.2d 526 (N.Y.1961).
25. 264P.2d 944 (Cal.1953).
26. Restatement (Second) 122.
70
particular issue.27 This examination allows a court to take account of the procedural character
of a particular rule, but without tying the court to a particular result. Nevertheless, as the following discussion illustrates, this flexible scheme has not eliminated all of the difficulties.
For example, the Restatement (Second) provides that, subject to some exceptions, the local
law of the forum determines the admissibility of evidence28 (apparently assuming this is a procedural issue). Indeed, many cases apply the law of the forum to this issue, but not necessarily
because they agree with this characterization. One example is State v.Lynch,29 which involved the
admissibility of wiretap evidence obtained in Nevada and used to prosecute a Nevada domiciliary in Montana, for a crime committed in Montana. The evidence would have been admissible
in Nevada, but not in Montana. The Montana Supreme Court characterized this as a procedural
issue and held the evidence inadmissible under Montanas exclusionary rule. However, the court
noted that the objective of the exclusionary rule was to punish illegal police conduct,30 which
is clearly a substantive policy, and that Montana had no control over police conduct in Nevada.
Nevertheless, the court concluded, Montanas paramount interest in affording defendants the
fullest protection of Montana law when appearing in its courts and this States clear prohibition
against non-consensual electronic surveillance of oral and wire communications, must prevail.31
Other cases involving the same scenario have reached the opposite result and applied the
law of the non-forum state. One such case is Commonwealth v. Sanchez.32 In that case, the
evidence was collected in California during a canine sniff that was lawful in California, but
unlawful under the law of Pennsylvania, the forum state. Characterizing the question as substantive, the Pennsylvania Supreme Court held that California law should govern, because
California possessed the greater interest in the validity of [a]canine sniff that took place
there and involved California police officers.33
27. See, e.g., id. at 6(2)(a)(b).

28. Id. at 138. Section 138 exempts from its scope privileged communications, the parol evidence rule,
and the statute of frauds.
29. 969P.2d 920 (Mont.1998).
30. Id. at924.
31. Id. For other examples, see State v.Briggs, 756 A.2d 731 (R.I. 2000)(holding that the law of the forum
governed the voluntariness and thus admissibility of statements made to police in another state, the law of
which was more favorable to the defendant than the law of the forum); Davidson v.State, 25 S.W.3d 183
(Tex. Crim. App.2000), on remand 42 S.W.3d 165 (Tex. App.2001) (holding that incriminating oral statements made by defendant in Montana and admissible there were inadmissible in Texas because they were
not electronically recorded as required by Texas law); Commonwealth v.Dennis, 618 A.2d 972 (Pa. Super.
1992)(applying Pennsylvania standards for determining the sufficiency of an application for a New Jersey
search warrant); People v.Benson, 454 N.Y.S.2d 155 (N.Y.A.D. 1982)(confession obtained in Texas was
admitted in NewYork, although it would be inadmissible in Texas; however, the confession was obtained
by a NewYork police officer and complied with NewYork standards).
32. 716 A.2d 1221 (Pa.1998).
33. Id. at 1223. The court stated that [w]hile [Pennsylvania] has an interest in protecting its citizens from
police misconduct and searches that are not supported by probable cause, the courts of [Pennsylvania]
have no power to control the activities of a sister state or to punish conduct occurring within that sister
state. See also Washington v.Brown, 940P.2d 546 (Wash. 1997), cert. denied, 503 U.S. 1007 (1998) (holding that the defendants statements recorded by California police without his knowledge, as permitted by
California law, were admissible in a Washington murder trial, even though such recording in Washington
might have violated Washingtonlaw).
71
Larrison v. Larrison,34 a child custody case, involved the admissibility of a taped telephone call made from Pennsylvania and taped by the recipient in NewYork. Pennsylvania law
required the consent of both parties before recording the conversation, while New York did
not require such consent. The Pennsylvania court characterized the admissibility of the tape
as a substantive question, and resolved the conflict by applying New York law, holding the
recording admissible. The court reasoned that NewYork had the greater interest in allowing
its citizens to record telephone conversations lawfully within its borders, and that, although
Pennsylvania also had an interest in protecting its citizens, Pennsylvania courts had no power
to control the activities that occur within a sister state.35
The Restatement (Second) considers as substantive the issue of admissibility of privileged
communications, such as those between spouses, patient and doctor, penitent and confessor,
and client and attorney. Indeed, unlike many other rules of evidence, the rules that establish
these privileges subordinate the goal of truth seeking to the broader societal interests of protecting certain relationships and encouraging socially desirable confidences. For this reason,
the Restatement (Second) assigns this question to the law of the state that has the most significant relationship to the communicationusually the state in which the communication
occurred. It provides that a communication that is not privileged under the law of that state,
but is privileged under the law of the forum, is admissible, unless admission would be contrary to the strong public policy of the forum.36
In State v.Heaney,37 the question was the admissibility of the defendants blood test results,
taken after a Wisconsin accident. The tests were privileged under Minnesota law, but not under
Wisconsin law. The lower court held the test results inadmissible under the lex fori, but the
Minnesota Supreme Court reversed. The latter court reasoned that applying the lex fori to
a conflict of privileges treads heavily on the prerogative of the foreign state to enact a substantive rule to protect what it considers socially valuable, confidential communications.38
Although Wisconsin did not protect this communication, the court found that, because the
communication was made in Wisconsin, Wisconsin had the most significant relationship, and
Wisconsin law should govern, making the communication admissible unless admission would
be contrary to a strong public policy of Minnesota. Finding no such policy, the court held the
communication admissible.
For the converse scenario in which a communication is not privileged under forum law,
but is privileged under the law of the state of the most significant relationship, Section 139(2)
of the Restatement (Second) provides that the communication is admissible, unless there is
34. 750 A.2d 895 (Pa. Super.2000).

35. Id. at898.
36. Restatement (Second) 139(1) . Gonzalez v.State, 45 S.W.3d 101 (Tex. Crim. App.2001), involved
this scenario. The defendant confided to a pastor in California, regarding a crime committed in Texas.
This communication would be privileged under the law of Texas, but not under the law of California. The
Texas court held that California had the most significant relationship to the communication and allowed
the evidence, after finding that Texas did not have a strong public policy against admission. See also State
v. Donahue, 18 P.3d 608 (Wash. Ct. App. 2001) (reaching the same result in a similar case involving a
doctor-patient privilege).
37. 689 N.W.2d 168 (Minn.2004).
38. Id. at174.
72
some special reason why the forum policy favoring admission should not be given effect.39
In Compuware Corp. v. Moodys Investors Services, Inc.,40 the communication in question
between a reporter/publisher and his sourceswas privileged under the law of New York,
where the communication was made, but not under the law of Michigan, the forum state.
Following Section 139(2) of the Restatement (Second), the Michigan court held that the
forums pro-admission policy should give way to NewYorks policy of protecting the privileged
communications of a reporter. The court reasoned that both the reporter and his sources had
every reason to rely on NewYork law when the communication was made, and NewYork had
a strong interest in protecting that communication.41
The substance versus procedure dichotomy is also important in diversity cases. As noted
earlier, after the flip-flop of 1938, federal courts:(1)ceased applying state procedural law, and
began applying federal procedural law; and (2) stopped creating their own substantive common law, and began applying state common law.42 However, the line separating substance from
procedure for Erie purposes is not necessarily the same as the line separating these categories
for choice-of-law purposes. For example, as discussed later, a statute of limitations qualifies as
substantive for Erie purposes,43 although most states consider it procedural for choice-of-law
purposes.44 Among the many federal cases struggling to clarify the line between substance and
procedure for Erie purposes, Barron v.Ford Motor Co. of Canada Ltd.,45 a diversity case decided
under Illinois conflicts law, is noteworthy because of its intelligent discussion of the issue. In
Barron, the court had to decide whether a North Carolina rule that prohibited evidence of a
plaintiff s failure to wear a seat belt at the time of the accident was procedural (thus governed
39. Restatement (Second) 139(2). For cases involving this scenario, see Saleba v.Schrand, 300 S.W.3d
177 (Ky. 2009) (medical malpractice action; holding that peer review documents regarding the proficiency of an Ohio doctor were admissible in Kentucky, although inadmissible in Ohio, because, even if
Ohio had the more significant relationship, a special reason must still exist before a Kentucky court will
apply another states law excluding evidence when Kentucky law plainly favors admission, id. at 182, and
in this case there was no such special reason); Kos v.State, 15 S.W.3d 633 (Tex. App.2000) (holding that
statements made by defendant to a doctor in New Mexico, which would be privileged under the law of
New Mexico law, but not Texas, were admissible in Texas); Major v.Commonwealth, 275 S.W.3d 706 (Ky.
2009)(holding that a taped phone conversation made in Massachusetts, when the defendant was domiciled there, was admissible at a trial in Kentucky, where the defendant was domiciled at the time he allegedly murdered his wife, because:(1)Kentucky was the state that had the most significant relationship, and
(2)even if Massachusetts had the most significant relationship, there was no special reason for Kentucky
as the forum state to forgo its acknowledged policy favoring admission of taped phone conversation with
the consent of one party. Id. at 714. The other party to the conversation was the defendants father).
40. 222 F.R.D. 124 (E.D. Mich.2004).
41.In Holmes v. Winter, 3 N.E.3d 694 (N.Y. 2013), cert. denied, ___U.S. ___, 134 S. Ct. 2664 (2014),
the New York Court of Appeals refused to issue a subpoena requested by a Colorado court to order a
NewYork journalist to appear at a Colorado criminal trial, where she could be compelled to disclose her
confidential sources. The court specifically rejected the dissents view that this issue should be decided
under Section 139 of the Restatement (Second), and distinguished this case from an earlier case that held
that the claim of journalistic privilege should be decided by the requesting state, because in this case, the
law of the requesting state, Colorado, was far less protective of journalists than NewYorklaw.
42. See supra 3841.
43. See Guaranty Trust Co. v.York, 326 U.S. 99 (1945).
44. See infra Chapter13.
45. 965 F.2d 195 (7th Cir.1992), cert. denied, 506 U.S. 1001 (1992).
73
by the Federal Rules of Evidence46), or whether it was substantive (and thus governed by state
law). In ruling on this issue, Judge Posnersaid:
A pure rule of evidence, like a pure rule of procedure, is concerned solely with accuracy and
economy in litigation and should therefore be tailored to the capacities and circumstances of the
particular judicial system, here the federal one; while a substantive rule is concerned with the
channeling of behavior outside the courtroom, and where as in this case the behavior in question
is regulated by state law rather than by federal law, state law should govern even if the case happens to be in federal court. . . . The North Carolina rule could be either. It is a rule of evidence
if it is motivated by concern that jurors attach too much weight to a plaintiff s failure to wear his
seatbelt. It is a substantive rule if it is designed not to penalize persons who fail to fasten their
seatbelts. Many rules mix procedural or evidentiary with substantive policy concerns, examples
being the parol evidence rule, the mend the hold doctrine. . . . The more broadly the North
Carolina rule is interpreted, the stronger the inference that its predominant character is that of
a rule of evidence.47
Judge Posner concluded that the rule was substantive because, according to North Carolina
precedent, it was founded on the desire of the North Carolina courts not to penalize the failure to fasten ones seatbelt, because nonuse is so rampant in the state that the average person
could not be thought careless for failing to fasten his seatbelt.48
B.RENVOI
When the forums choice-of-law rule refers to the law of another state, a question arises whether
the reference is to that states whole law (i.e., including its conflicts law), or to its substantive
or internal law. This is the famous renvoi question, and it is answered by the forums choice-
of-law rule.49 If the reference is to include the whole law of the other state, then it is said that
the forum adheres to the doctrine of renvoi.50 In such a case, the foreign choice-of-law rule may
point back to the law of the forum state (remission) or to the law of a third state (transmission),
46. The Federal Rules of Evidence provide that, in diversity cases, matters of evidence are governed by the
Federal Rules, except with regard to presumptions, privileges, and the competency of witnesses, which the
Rules expressly relegate to state law. See Fed. R.Evid. 302, 501, and 601, respectively.
47. Barron, 965 F.2d at199.
48. Id. at200.
49. The word is French and derives from the verb renvoyer, which means to refer back or to refer further. The corresponding English terms are remission and transmission. Their inelegance may explain
why the French term has prevailed in the literature.
50. For extensive discussions of renvoi in modern American conflicts law, see R.S. Barish, Renvoi and
the Modern Approaches to Choice-of-Law, 30 Am. U. L. Rev. 1049, 106568 (1981); J.D. Egnal, The
Essential Role of Modern Renvoi in the Governmental Interest Analysis Approach to Choice of Law,
54 Temple L.Q. 237 (1981); L. Kramer, Return of the Renvoi, 66 NYU L.Rev. 979 (1991); K. Roosevelt,
Resolving Renvoi:The Bewitchment of Our Intelligence by Means of Language, 80 Notre Dame L.Rev.
1821 (2005); A.T.von Mehren, The Renvoi and Its Relation to Various Approaches to the Choice-of-Law
Problem, in K. Nadelmann, A.von Mehren & J. Hazard (eds.), XXth Century Comparative and Conflicts
LawLegal Essays in Honor of Hessel E.Yntema 380 (1961).
74
with further possibilities and questions, depending on whether the remitting or transmitting
state itself adheres to the renvoi doctrine and what its choice-of-law rules provide.
To illustrate these possibilities, let us consider a hypothetical scenario ( depicted by Figure2,
below) involving the succession of a domiciliary of the forum state whose estate encompasses,
inter alia, immovables situated in State X.Suppose, as is usually the case in the Anglo-American
world, that the forums choice-of-law rule provides that succession to immovables is governed
by the whole law of the situs state, State X.In such a case, the initial reference (see vector #1,
in Figure2) is to State Xs conflicts law because whole law includes conflictslaw.
FORUM STATE
(Domicile)
STATE X
(Situs)
STATE Y
(Nationality)
3 (transmission)
Internal law
Conflicts
Law
Internal law
2 (remission)
Conflicts
Law
Internal law
Conflicts
Law
4
5
Figure2. The Possibilities forRenvoi.

One resulting possibility is that the conflicts law of State X may refer the matter to its own
internal law. If so, that law applies and the matter endsthere.
A second possibility is that State X may refer the matter back to the forum state (vector #2),
if, for example, State Xs choice-of-law rule provides that succession is governed by the law of
the decedents last domicile. This reference back is called remission. Theoretically, one should
ask whether this remission is meant to be a reference to the internal law of the forum or to its
conflicts law. If the reference is to the latter, then the possibility of a never-ending circle exists.
In practice, however, no court, in any country, has found itself entrapped in this circle. The
forum simply accepts the reference back, and applies its internal law. All conflicts codifications
that adhere to renvoi provide expressly that a remission to the law of the forum is accepted and
the internal law of the forum applies.51
A third possibility (vector #3) is that State X may refer the matter to the law of a third
state, if, for example, State Xs choice-of-law rule provides that succession is governed by the
law of the decedents last nationality and the decedent was a national of State Y, although he
51. This is true for example of the codifications of:Austria (art. 5.2), Belarus (art. 1096.2), Burkina Faso
(art. 1005), Croatia (art. 6.2), Czech Republic (art. 35), Estonia (art. 6.1), FYROM (art. 6.2), Germany
(art. 4.1); Hungary (art. 4), Italy (art. 13.1.b), South Korea (art. 9.1), Kyrgyzstan (art. 1170.2), Latvia (art.
23), Liechtenstein (art. 5), Lithuania (art. 1.14.1), Macau (art. 16), Poland (art. 5), Portugal (art. 18(1),
Romania (art. 4.1), Russia (art. 1190.2), Slovenia (art. 6.2), Switzerland (art. 14.1); Taiwan (art. 6), United
Arab Emirates (art. 26), and Venezuela (art 4). For detailed citations to these and all other choice-of-law
codifications cited in this book, see Appendix at 705, infra. Hereinafter, these codifications are referred to
with the country of origin and the abbreviation codif., regardless of their formal designation, such as an
act, statute, decree, ordinance, etc., and regardless of whether they are freestanding codes or statutes or
whether they form part of another code, such as a civilcode.
75
was domiciled in the forum state. The question then is whether this transmission points to the
internal or the conflicts law of State Y.Ordinarily, this question is answered by the conflicts law
of State X, the transmitting state. If the transmission is to the conflicts law of State Y, then that
law may refer the matter to its own internal law, or to the internal or conflicts law of:another
state, State Z,52 State X (vector #5), or the forum state (vector #6). If the reference points to the
conflicts law of any of these states, then the possibility of the never-ending circle arises again,
but only in the abstract. In practice, every time there is a reference back to the sending state,
the internal law of that state applies and the matter endsthere.
Article 5 of the Austrian conflicts codification (1978) offers a good example of these possibilities and how modern codifications handle them. That article provides in part:If the foreign law
refers back, Austrian internal rules (rules excepting conflicts rules) shall be applied; if reference
is made to a third country, further references shall be considered, but the internal rules of the
country that does not refer to any other country or to which another country refers back for the
first time shallapply.
Underneath all the apparent complexity of the renvoi doctrine lies a very important philosophical question: should the forum resolve conflicts problems based exclusively on its own
notions about which is the proper law, or should the forum consider, in principle, the corresponding
notions of other states? The First Restatement took the former position by categorically rejecting
renvoi, except in cases involving title to land or matters of divorce.53 Amore lenient explanation
is that the Restatements drafters thought that the complexities associated with renvoi would
disrupt the simplicity of the system they attempted to establish. Nevertheless, courts following
the First Restatement have ignored its proscription of renvoi, in order to avoid the results that
the Restatements rules dictated. This is why renvoi came to be viewed as an escape device in
the United States, rather than as a useful tool for attaining uniform and rational results.
One example of a case that used renvoi as a vehicle for avoiding the results dictated by the
traditional system is American Motorists Insurance Co. v.ARTRA Group, Inc.54 That case was
decided by the Supreme Court of Maryland, a state that continues to adhere to the lex loci
contractus rule. The locus contractus was in Illinois, the home state of both contracting parties,
which had abandoned this rule in favor of the Restatement (Second). The court managed to
avoid the lex loci rule by assuming, albeit erroneously, that an Illinois court would have concluded that Maryland ha[d]the most significant relationship,55 apparently because the contract insured property located in Maryland. Adopting a limited renvoi exception, the court
held that Marylands adherence to lex loci contractus must yield to a test such as Restatement
52. For one of the few cases that followed a renvoi to the law of a third state, see Charania v.Shulman,
608 F.3d 67 (1st Cir. 2010)(federal estate tax case, holding:(1)that the classification of an estate as community or separate property was governed by the whole law of Belgium, which was the decedent spouses
domicile at the time of death; (2)that a Belgian court would apply the whole law of the spouses common
nationality, which was British; and (3)that an English court would apply the law of Uganda, which was
the country of the first matrimonial domicile).
53. See Restatement (First) 7,8.
54. 659 A.2d 1295 (Md.1995).
55. Id. at1304.
76
(Second) Conflict of Laws 188 when the place of contracting would apply Maryland law pursuant to that test.56
However, in Erie Insurance Exchange v.Heffernan,57 the same Maryland court rejected the
defendants persistent arguments to employ a renvoi exception to the lex loci delicti rule. This
case arose out of a single-car accident in Delaware that resulted in the death of a Maryland domiciliary. The dispute was between the victims parents and their insurer. Delaware law favored
the parents, while Maryland law favored the insurer. The insurer argued that, as in ARTRA, the
court should employ renvoi and, because a Delaware court following the Restatement (Second)
would have applied Maryland law, the Maryland court should do likewise. The court rejected
this argument, ostensibly because ARTRA was distinguishable; but the court eventually admitted that renvoi was a tool of choiceto be used only when the lex loci rule would lead to
undesirable results. We choose not to apply the doctrine of renvoi in the instant case, said the
court, because we are not of the opinion that the application of lex loci delicti will result in any
harshness that the application of the doctrine of renvoi would avoid.58
The drafters of the Restatement (Second) understood the potential held by renvoi for
attaining uniformity, and they put it to good use, albeit in hortatory language. Section 8 of the
Restatement (Second) provides, inpart:
(1) When the objective of the particular choice-of-law rule is that the forum reach the
same result on the very facts involved as would the courts of another state, the forum
will apply the choice-of-law rules of the other state, subject to considerations of practicability and feasibility.
(2) When the state of the forum has no substantial relationship to the particular issue or
the parties and the courts of all interested states would concur in selecting the local
[substantive] law rule applicable to this issue, the forum will usually apply this rule.59
The Restatement (Second) implements the uniformity desideratum in the area of successions, by providing that:(1)succession to land is governed by the law that would be applied
by the courts of the situs,60 and (2)succession to movables is governed by the law that would
be applied by the courts of the state where the decedent was domiciled at the time of death.61
Modern conflicts codifications in countries such as Germany, Italy, and Portugal employ
renvoi in a way that is designed to attain certain substantive results considered a priori as desirable, such as favoring the validity of juridical acts or according a person the status of legitimacy.62 In the United States, the Louisiana conflicts codification utilizes renvoi in certain cases
56. Id. For another Maryland case using renvoi, and applying Maryland law under similar circumstances,
see Commercial Union Ins. Co. v.Porter Hayden Co., 698 A.2d 1167 (Md. App.1997), cert. denied, 703
A.2d 147 (Md.1997).
57. 925 A.2d 636 (Md.2007).
60. See, e.g., id. at 236, 239242.
61. See, e.g., id. at 260, 261, 263265.
62. See, e.g., German EGBGB, Art. 4; Swiss PIL codification, Art. 14; Italian PIL codification, Art. 13(3);
Portuguese Civ. Code, Arts1719.
77
(involving foreign immovables, status, and limitations), prohibits renvoi in all cases for which
the codification provides categorical dispositive choice-of-law rules, and permits renvoi in all
cases in which the codification employs a flexible approach that leaves the ultimate choice-of-
law decision to the courts discretion.63
As these examples illustrate, renvoi need not be an all-or-nothing proposition. Furthermore,
acceptance of renvoi in principle does not entail the surrender of the choice-of-law process to
the wishes of other states. The forum retains full control of this process along with the freedom
to decide which and how much of renvoi to accept. In particular, renvoi need not result in an
endless loop,64 as some courts opine, especially when the foreign choice-of-law rule refers back
to the law of the forum. In these cases, nothing prevents the forum court from ending the loop,
by accepting the reference back and applying the forums substantive law. As noted earlier, all foreign conflicts codifications that adhere to renvoi expressly provide that a remission to the law of
the forum is accepted and the internal law of the forum applies.65 Some American courts do precisely that.66 For example, in In re Estate of Wright,67 the Maine Supreme Court accepted a renvoi
from a Swiss choice-of-law rule to the law of Maine and applied the substantive law of thatstate.
More common are the cases that employ a renvoi syllogism (often without using this
term)68 to buttress a choice-of-law decision primarily based on other grounds. The decision can
be either in favor of the law of the forum state69 or, less frequently, in favor of the law of another
63. See La. Civ. Code Art. 3517 (1992), and pertinent discussion in S. Symeonides, Private International
Law Codification in a Mixed Jurisdiction:The Louisiana Experience, 57 RabelsZ 460, 47778 (1993).
64. Mut. Concepts, Inc. v.First Natl Bank of Omaha, 495 Fed. Appx. 514, 518 (5th Cir. 2012). For other
cases rejecting renvoi for this reason, see, e.g., Lemons v.Cloer, 206 S.W.3d 60 (Tenn. Ct. App.2006) (referring to renvoi as a quagmire, id. at 68); Makarova v.United States, 201 F.3d 110 (2d. Cir. 2000)(referring
to renvoi as a mystical doctrine and declin[ing] to enter that bog. Id. at114).
65. See supra note 51.
66. See, e.g., Am. Motorists Ins. Co. v.ARTRA Group, Inc., 659 A.2d 1295 (Md. 1995); Commercial Union
Ins. Co. v.Porter Hayden Co., 698 A.2d 1167 (Md. App.1997), cert. denied, 703 A.2d 147 (Md.1997).
67. 637 A.2d 106 (Me.1994).
68. Obviously, a renvoi can occur even when the court does not use that term. In fact, sometimes, a renvoi may occur even when the court purports to deny it. For example, in Sutherland v.Kennington Truck
Serv., Ltd., 562 N.W.2d 466 (Mich. 1997), the Michigan court reasoned that the fact that an Ontario court
would have applied Michigan law supported the application of that law. The court denied that it was
engaging in renvoi because, in its opinion, renvoi occurs only when the forum applies the entire law of
th[e foreign] jurisdiction, including its choice of law rules. Id. at 473 n.26 (emphasis added). That is not
the case here, said the court:[W]e do not engage in renvoi because we decline to apply any of Ontarios
law. We look at Ontarios choice of law rules merely to determine Ontarios interests.Id.
69. For cases applying forum law by partly relying on a renvoi syllogism, see, e.g., Herbert v.District of
Columbia, 808 A.2d 776 (D.C. 2002)(applying D.C.law to a wrongful death case resulting from an accident in Maryland, because, inter alia, a Maryland court would have applied D.C.law); Bethlehem Steel
Corp. v.G.C. Zarnas & Co., Inc., 498 A.2d 605 (Md. 1985)(the fact that a Pennsylvania court would have
applied Maryland law was an additional reason for applying that law); Sutherland v.Kennington Truck
Serv., Ltd., 562 N.W.2d 466 (Mich. 1997)(finding that the fact that an Ontario court would have applied
Michigan law was an additional reason for applying that law); Autocephalous Greek-Orthodox Church
of Cyprus v.Goldberg & Feldman Fine Arts, Inc., 717 F.Supp.1374 (S.D. Ind. 1989)(finding that the fact
that a Swiss court would have applied Indiana law was an additional reason for applying Indiana law);
Kubasko v.Pfizer, Inc., 2000 WL 1211219 (Del. Super. June 30, 2000)(the fact that a Connecticut court
would have applied Delaware law was an additional reason for applying that law); Lou ex rel. Chen v.Otis
78
state.70 Miller v.White,71 a tort action arising from a Quebec traffic accident involving Vermont
parties, is an example of cases belonging to the first category. The Vermont Supreme Court
decided to apply Vermont law, after finding that Vermont had a strong interest in applying its
pro-plaintiff law and Quebec had no countervailing interest in applying its pro-defendant law.
As further evidence of Quebecs weak interest in this type of action,72 the court cited Quebecs
choice-of-law rule, which provided that tort actions involving parties domiciled in the same
state are governed by the law of that state. Likewise, in Braxton v.Anco Electric, Inc.,73 a tort
action arising from an employment accident in Virginia and involving North Carolina parties,
the North Carolina Supreme Court concluded that the policies embodied in North Carolinas
workers compensation statutes required the application of that states pro-recovery law. But
the court buttressed that conclusion by noting that, under Virginia precedent, a Virginia court
would have also applied North Carolinalaw.
This use of the renvoi syllogism is entirely appropriate, at least when both the forum and
the foreign state follow interest analysis or, for that matter, any other functional analysis.
Because ascertaining whether each involved state would wish to apply its law is an integral part
of this analysis, it is perfectly sensible to inquire into the non-forum states choice-of-law rules
as authentic evidence of how that state delineates the extraterritorial reach of its laws. However,
this otherwise good idea becomes questionable when the non-forum state is one that continues
to follow a mechanical choice-of-law rule, such as the lex loci delicti, which, at least as originally
conceived, did not even purport to reflect a states interests.
C. THE PUBLIC POLICY EXCEPTION

Buried towards the end of the First Restatement, in Section 612 out of 625 sections, is the
statement:No Action can be maintained upon a cause of action created in another state the
enforcement of which is contrary to the strong public policy of the forum.74
The location of this provision perhaps symbolized the Restatements view of the public
policy exception as almost an afterthought in the choice-of-law process. In principle, the choice
of the applicable law was to be made without regard to its content, flowing automatically from
the application of the Restatements territorially focused, jurisdiction-selecting rules. Once the
choice was made, however, the court was permitted to examine the content of the chosen law
and to entertain certain limited defenses or exceptions to its application.
Elevator Co., 2004 WL 504697 (Mass. Super. 2004) (the fact that a Chinese court would have applied
Massachusetts law was an additional reason for applying thatlaw).
70. For cases applying non-forum law by partly relying on a renvoi syllogism, see, e.g., Nodak Mut. Ins.
Co. v.Am. Family Mut. Ins. Co., 604 N.W.2d 91 (Minn. 2000)(finding that the fact that a North Dakota
court would have applied North Dakota law was an additional reason for applying that law); Stutsman
v.Kaiser Found. Health Plan, 546 A.2d 367 (D.C. 1988)(noting that the fact that a Virginia court would
have applied Virginia law was an additional reason for applying thatlaw).
71. 702 A.2d 392 (Vt.1997).
72. Id. at396.
73. 409 S.E.2d 914 (N.C.1991).
79
One such exception was the public policy exception (stated in Section 612), which was intended
to serve as a corrective mechanism in extraordinary cases.75 According to Judge Cardozos classic
statement in Loucks v.Standard Oil Co. of NewYork,76 the public policy exception applies only if
the foreign law offends our sense of justice or menaces the public welfare, shock[s]our sense of
justice, or violate[s] some fundamental principle of justice, some prevalent conception of good
morals, some deep-rooted tradition of the common weal.77 Amere difference between the two
laws is not enough to show that public policy forbids us to enforce the foreign right.78
The First Restatement did not endorse this particular phraseology, which the Restatement
(Second) endorses, but it enunciated a similartest:
The application of this [exception] . . . is extremely limited . . . . There is a strong public policy
favoring the enforcement of duties validly created by the law governing their creation . . . . The
desirability of uniform enforcement of rights acquired in other states is especially strong among
the states of the United States. Differences in policy among them are of minor nature . . . The
social interest in uniform enforcement regardless of state lines is particularly great.79
Thus, a mere difference between forum and foreign law should not trigger deployment of
the public policy exception. Only a clear conflict in fundamental policy can do so. As one judge
observed, The test is a matter of degree. The public policy exception necessarily refers to
a high degree of public policy; otherwise, differences between the laws of sister states would
always result in applying the law of the forum[.]80 The NewYork Court of Appeals reiterated
Cardozos classic test and stated:
[N]ot every difference between foreign and NewYork law threatens our public policy. Indeed, if
NewYork statutes or court opinions were routinely read to express fundamental policy, choice of
law principles would be meaningless. Courts invariably would be forced to prefer NewYork law
over conflicting foreign law on public policy grounds.81
Foreign legal systems have adopted a similarly high threshold for applying the ordre public
exception. To be rejected under this exception, the application of foreign law must be manifestly
incompatible with the forums ordre public or with fundamental principles of the forum state.82
Second, in employing this exception, the court considers the result of the particular foreign law
75. Basic bibliography on the public policy exception includes:Hay, Borchers & Symeonides, Conflict of
Laws 16871; Weintraub, Commentary 118-25; P. Hay, Comments on Public Policy in Current American
Conflicts Law, in Dietmar Baetge et al. (eds.), Die Richtige OrdnungFestschrift fr R. Kropholler, 89
(2008). Two other exceptions, the penal and the tax exceptions, are discussed infra 8286.
76. 120 N.E. 198 (N.Y.1918).
77. Id. at202.
78. Id.
79. Restatement (First) 612cmt. c (emphasis added).
80.Bethlehem Steel Corp. v. G.C. Zarnas & Co., Inc., 498 A.2d 605, 613 (Md. 1985) (Rodowski, J.,
dissenting).
81. Cooney v.Osgood Mach., Inc., 612 N.E.2d 277, 284 (N.Y.1993).
82. See, e.g., Rome II, art. 26 (manifestly incompatible with the public policy (ordre public) of the
forum); German codif. art. 6 (manifestly incompatible with essential principles of German law * * * [or]
80
provision in the particular case, rather than evaluating the foreign provision in the abstract. Third,
foreign systems distinguish between ordre public international and ordre public interne. Only the
former may be invoked as an exception to the application of foreign law.83 The underlying concept
is that the forum should be more tolerant of certain results in multistate cases than in domestic
cases. Finally, some codifications bring to the surface the principle that the ordre public exception
should be invoked only when the forums connection with the case is sufficiently close.84
Aleem v.Aleem85 is one of the few, relatively recent, cases in which the application of the
ordre public exception met Cardozos classic test. Aleem was a marital property dispute between
Pakistani spouses domiciled in Maryland. They were married in Pakistan and, a few years later,
moved to Maryland, where they lived for 20 years. During this time, the husband acquired
assets that would be classified as marital property under Maryland law and would be subject
to the wifes equitable division claims under that law. Under Pakistani law, these assets would
be the husbands separate property and would not be subject to any claims in favor of the wife.
When the wife sued for divorce and equitable division in Maryland, the husband went to the
Pakistani embassy in Washington and executed a talaq, (a unilateral, nonjudicial divorce) by
signing a document before witnesses stating three times I Divorce thee Farah Aleem.86 Under
Pakistani law, a husband had a virtual automatic right to talaq, but the wife had that right only
if it was included in the written marriage agreement, or if the husband had otherwise delegated
that right to herneither of which occurred in thiscase.
The husband argued that, because this divorce was effective under Pakistani law, the
Maryland court did not have jurisdiction to divorce him, and also it could not divide marital property because, under Pakistani law, all assets were his separate property. The Maryland
court rejected both arguments. The court heldthat:
the enforceability of a foreign talaq divorce provision . . . where only the male, i.e., husband,
has an independent right to utilize talaq and the wife may utilize it only with the husbands permission, is contrary to Marylands constitutional provisions and thus is contrary to the public
policy of Maryland.87
with fundamental rights); Austrian codif. art. 6 (if the application of foreign law would lead to a result
irreconcilable with the basic tenets of Austrian law); South Korean codif. art. 10 (manifestly incompatible with the good morals and other social order of the Republic of Korea); Estonian codif. art. 7
(obvious conflict with the essential principles of Estonian law (public policy)); Mexican codif. art. 15 II
(contrary to public policy or to the fundamental principles of Mexican institutions); Venezuelan codif.
art. 8 (clearly incompatible with the essential principles of Venezuelan public policy).
83. See B. Audit & L. DAvout, Droit international priv 310 (7th ed. 2013); Y. Loussouarn, P. Bourel &
P. de Vareilles-Sommires, Droit international priv 249 (10th ed. 2013); Quebec Civ. Code art. 3081
(a court may refuse to apply provisions of a foreign law, if their application is manifestly inconsistent
with public order as understood in international relations); Peruvian codif. art. 3029 (foreign law may
be rejected only if its application produces results incompatible with international public policy (orden
publico internacional)).
84. See Belgian codif. art. 21 (In determining this incompatibility, special consideration is given to the
degree in which the situation is connected with the Belgian legal order); Bulgarian codif. art. 45(2)
(Incompatibility shall be evaluated while taking account of the extent of connection of the relationship
with Bulgarian public policy).
85. 947 A.2d 489 (Md.2008).
86. Id. at490.
87. Id. at 50001.
81
The court noted:Talaq lacks any significant due process for the wife, and its use, moreover, directly deprives the wife of the due process she is entitled to when she initiates divorce
litigation in this State.88 The court also held that Pakistans denial of equitable division rights
to property acquired by the husband during marriage were wholly in conflict with the public
policy of [Maryland], and thus deserved no comity in Marylands courts.89
In contrast to the Maryland court, many courts in other states following the First
Restatement use a much lower threshold in employing the public policy exception. The following are a few examples of this phenomenon:
The Georgia Supreme Court avoided the lex loci delicti rule by holding that a Virginia
rule that did not impose strict liability on manufacturers was so radically dissimilar to
Georgias strict-liability rule as to justify its rejection on public policy grounds.90
The Georgia Court of Appeals held summarily (in just one sentence) that the differences between the wrongful death Acts of Georgia and Florida were sufficient to render the Florida Act in contravention of Georgia public policy.91 The difference was that
the Florida Act did not allow recovery for the decedents pre-death mental pain and
suffering.92
The South Carolina Supreme Court found that a Georgia rule that prohibited interspousal tort suits was contrary to natural justice,93 and refused to apply it in a case
arising out of a Georgia accident involving South Carolina spouses.
Aconflict with natural justice was also the main reason for which the South Dakota
Supreme Court refused to apply an Indiana statute prohibiting a guest-passenger from
suing the host driver (guest-statute), in a case arising from an Indiana traffic accident
involving a driver and his passenger from South Dakota.94
The Supreme Court of West Virginia refused to apply the same Indiana guest-statute,
and for the same reason, in a case arising from an Indiana traffic accident involving West
Virginia parties. The court candidly explained that the availability of the public policy
exception obviated the need to abandon the lex loci delicti rule.95
88. Id. at501.

89. Id.
90. Alexander v. Gen. Motors Corp., 478 S.E.2d 123, 124 (Ga. 1996). The court applied Georgia law,
which allowed a Georgia plaintiff to recover against a foreign manufacturer. For a similar case reaching
the same result under the same reasoning, see Bailey v. Cottrell, Inc., 721 S.E.2d 571 (Ga. App. 2011),
reconsideration denied (Dec. 16,2011).
91.Carroll Fulmer Logistics Corp. v. Hines, 710 S.E.2d 888, 891 (Ga. App. 2011), cert. denied (Jan.
9,2012).
92. The decedent was a Georgia domiciliary, who was killed in Florida when his truck collided with a
truck driven by another Georgia domiciliary.
93. Boone v.Boone, 546 S.E.2d 191, 194 (S.C.2001).
94. Owen v.Owen, 444 N.W.2d 710, 713 (S.D. 1989). Three years later, South Dakota abandoned the lex
loci delicti rule. See Chambers v.Dakotah Charter, Inc., 488 N.W.2d 63 (S.D.1992).
95. See Paul v.Natl. Life, 352 S.E.2d 550, 556 (W.Va. 1986)([I]f we are going to manipulate conflicts
doctrine in order to achieve substantive results, we might as well manipulate something we understand.
Having mastered marble, we decline an apprenticeship in bronze. We therefore reaffirm our adherence to the doctrine of lex loci delicti today.). In Mills v.Quality Supplier Trucking, Inc., 510 S.E.2d 280
82
All of these courts applied forum law in place of the rejected foreign law. Had they been
prepared to abandon the lex loci delicti rule, they could have easily justified the application of
forum law because the forum state had multiple contacts and interests. Instead, these courts
chose to keep the rule, but avoid its results. For example, the Supreme Court of Georgia frankly
acknowledged that there was no need to abandon the lex loci delicti rule, because Georgia
courts have the power to ameliorate the sometimes seeming harshness of the rule through
the public policy exception.96 Although this is typical of many courts that continue to follow the traditional approach, the fact remains that this loose employment of the public policy
exception violates the basic prescriptions of that approach.
Equally unorthodox is the affirmative use of the forums public policy, which has become
increasingly common in recent years.97 Under the traditional approach, public policy was not a
rule of choice of law but rather an exception to all choice-of-law rules. As such, it was supposed
to function only negatively, by repelling obnoxious foreign laws, rather than affirmatively, as a
justification for the application of forum law. Yet, many cases from the lex loci states routinely
use the forums public policy offensively, rather than defensively. In one case, for example, the
Supreme Court of New Mexico applied the law of the forum without even looking at the law of
the state of injury because, the court reasoned, the lex loci rule is not utilized if [its] application would violate New Mexico public policy.98
This use of public policy differs little from its use by modern approaches, under which the
forums public policy is an integral affirmative factor in the courts decision to apply or not
to apply the law of the forum. Indeed, one of the differences between the First Restatement
and modern approaches such as interest analysis is that, in Brainerd Curries words, interest
analysis summon[s]public policy from the reserves and place[s] it in the front lines where it
belongs.99 Curries statement also describes other modern approaches, such as the Restatement
(Second), under which an examination of the policies of the conflicting laws is one of the primary criteria for choosing between or among them.100
D. THE PENAL-LAW EXCEPTION

The courts of no country execute the penal laws of another,101 proclaimed the United States
Supreme Court in 1825. Before the end of the nineteenth century, the Court explained that this
principle also applied to judgments that were penal in the international sense.102 This principle
holds true today, even as among the states of the United States. Strictly speaking, in the area of
criminal law, there is no a choice-of-law questionit is merged into the jurisdictional question.
(W.Va.1998), the same court refused on public policy grounds to apply Marylands contributory negligence rule in favor of West Virginias comparative negligence rule. See also Vass v.Volvo Trucks North
Am., Inc., 315 F.Supp.2d 815 (S.D. W.Va. 2004)(accord).
96. Dowis v.Mud Slingers, Inc., 621 S.E.2d 413, 416 (Ga.2005).
97. See Symeonides, Choice-of-Law Revolution5258.
98. Torres v.State, 894P.2d 386, 390 (N.M.1995).
99.Currie, Selected Essays on the Conflict of Laws88.
100. See Restatement (Second) 6(2)(a)(b).
101. The Antelope, 23 U.S. (10 Wheat) 66 (1825) (emphasis added).
102. Huntington v.Attrill, 146 U.S. 657 (1892) (emphasis added).
83
A state either has jurisdiction, in which case it applies its own law, or lacks jurisdiction, in
which case it would ordinarily extradite the defendant to a state with proper jurisdiction.
However, the penal-law exception sounds broader than it is. First, to fall within the exception (and thus outside the scope of the choice-of-law process), the foreign statute must be
penal in the international sense. The quoted phrase is not self-explanatory, but, according to
the Court, a statute meets this criterion if it punish[es] an offense against the public justice of
the state [as opposed to] afford[ing] a private remedy to a person injured by the wrongful
act.103 In Cardozos words, the statute must be designed primarily for the vindication of the
public justice, rather than the vindicat[ion of] a private right.104
Second, the exception means only that the forum does not directly apply (execute) foreign penal laws or enforce foreign penal judgments. But the forum may choose to rely on
foreign penal laws or judgments for its own purposes, as it deems appropriate. For example, a
state may choose to recognize a foreign conviction for purposes other than enforcement, such
as determining whether the convicted person is a multiple offender or a felon ineligible for
public office. Likewise, in applying the forums three-strikes law, a court may include in the
count the defendants prior convictions in another state.105
In Small v.United States,106 the Supreme Court faced the question whether a provision of
the U.S. Criminal Code that prohibited the possession of firearms by persons convicted in any
court,107 and sentenced to more than a year of imprisonment, included convictions by a foreign court.108 The Court answered this question in the negative, but only because it found that,
in enacting the Code, Congress did not intend it to include foreign convictions. These convictions differ from domestic convictions in important ways,109 either because they may be based
on laws that prohibit conduct that U.S.law permits or punishes much less severely, or because
they may result from proceedings that are inconsistent with an American understanding of
fairness.110 The Court reasoned that, although these differences alone were not determinative,
they tipped the scales in favor of concluding that Congress intended the phrase convicted in
any court to apply domestically, not extraterritorially.111
103. Id. at 67374.
104. Loucks v.Standard Oil Co. of N.Y., 120 N.E. 198, 19899 (N.Y.1918).
105. Three-strikes laws impose higher penalties on persons with two previous convictions for certain
offenses. For cases involving such laws, see, e.g., State v.Berry, 5P.3d 658 (Wash. 2000); Berry v.Morgan,
137 Fed. Appx. 952 (9th Cir. 2005), cert. denied, 546 U.S. 1185 (2006); State v.Keller, 19P.3d 1030 (Wash.
2001). For cases requiring a convicted sex offender to register his or her residence with the local authorities, even when the conviction was in another state, see Donlan v.State, 249P.3d 1231 (Nev. 2011); Nolan
v.Fifteenth Judicial Dist. Attorneys Office, 62 So. 3d 805 (La. Ct. App.2011), rehg denied (May 25, 2011),
writ denied, 68 So. 3d 520 (La. 2011); Doe v.ODonnell, 924 N.Y.S. 2d 684 (N.Y.A.D. 3rd Dept. 2011),
leave to appeal denied, 957 N.E.2d 1157 (N.Y.2011).
106. 544 U.S. 385 (2005).
107. 18 U.S.C. 922(g)(1) (2015).
108. The defendant in Small was convicted by a Japanese court for smuggling firearms into Japan and was
sentenced to five years imprisonment. Two years later, he was paroled and returned to the United States,
where he was arrested in possession of two other firearms.
109. Small, 544 U.S.at388.
110. Id.
111. Id. In re Wilde, 68 A.3d 749 (D.C. 2013)involved the question of whether a South Korean conviction for theft could be the basis for mandatory disbarment under the District of Columbia Bar Rules,
84
Rules imposing exemplary or punitive damages possess a penal attribute, to the extent they
are designed to punish the defendant rather than compensate the victim, who ex hypothesi is
made whole through compensatory damages. However, unlike fines, which are paid to a public
fund, punitive damages are paid to the victim. In part because of this reason, American courts
have never utilized the penal-law exception as the basis for refusing to award punitive damages
under another states law. In recent years, a few states enacted statutes that mandate payment
of a portion of punitive damages awards to a public fund.112 In cases involving such statutes,
defendants will likely invoke Judge Cardozos statement that a statute that awards a penalty
to the state is penal in the international sense.113 However, no court has ruled on such an
argumentyet.
Most foreign countries, especially those belonging to the civil law tradition, do not allow
punitive damages, reasoning that punishment (as opposed to compensation) is a task that
belongs to criminal law. Consequently, when a court in those countries encounters a tort that
is governed by a law that imposes punitive damages, the court will likely refuse to award such
damages, not so much because they are penal in character, but rather because their award in a
civil case contravenes the forums public policy. Adraft of what later became Article 26 of the
European Unions Rome II Regulation provided specifically that the application of a foreign law
that imposed exemplary or punitive damages was contrary to EU public policy. This provision
was dropped in the final text, on the assumption that the generic ordre public reservation would
likely produce the same result in most cases without mandating it in all cases.114 Several foreign
codifications, including those of Estonia, Germany, Hungary, Japan, Romania, South Korea,
Switzerland, and Turkey provide that, when foreign law governs a tort, the amount of damages
may not exceed the amount available under the lex fori.115
which imposed this sanction for a conviction in a court outside the District of Columbia, for a serious
crime involving moral turpitude. Relying on Small, the D.C. Court of Appeals interpreted the above-
quoted italicized provision as not extending to courts in a foreign country. The court also held, however,
that:(1)the foreign conviction could be the basis for an original disciplinary proceeding by the D.C. Bar,
and (2)the Bar could give conclusive effect to the factual and legal determinations of the foreign court, if
the Bar determines that it is fair and reasonable to do so. In State v.Menard, 888 A.2d 57 (R.I. 2005), the
question was whether an Arizona arson conviction qualified as a predicate crime of violence, under a
Rhode Island statute that prohibited persons convicted in this state or elsewhere of a crime of violence
from possessing firearms. The Rhode Island Supreme Court held that Rhode Island law controlled the
question of the seriousness of the crime and discounted a statement in the Arizona judgment describing
the crime as not of a dangerous nature. Id.at62.
112. See S. Symeonides, Resolving Punitive-Damages Conflicts, 5 Ybk. Priv. Intl L.1, 3 (2003).
113. Loucks v.Standard Oil Co. of N.Y., 120 N.E. 198, 19899 (N.Y.1918).
114.Article 11 of the 2005 Hague Convention on Choice of Court Agreements provides that
[r]ecognition or enforcement of a judgment may be refused if, and to the extent that, the judgment
awards damages, including exemplary or punitive damages, that do not compensate a party for actual loss
or harm suffered.
115. See Symeonides, Codifying Choice of Law 8587. Article 40(3) of the German codification provides
that damages claims for a tort governed by foreign law cannot be raised insofar as they (1)go substantially beyond what is necessary for an adequate compensation of the injured party, [or] (2) obviously
serve purposes other than an adequate compensation of the injured party[.] Article 32(4) of the South
Korean codification provides that damages for a tort governed by foreign law shall not be awarded if
the nature of the damages is clearly not appropriate to merit compensation to the injured party or if the
extent of the damages substantially exceeds appropriate compensation to the injured party.
85
E. THE FOREIGN TAX-LAW EXCEPTION

Although the obligation to pay taxes is not penal, the foreign tax-law exception (also known as
the revenue rule) resembles the penal-law exception in the sense that:(1)they both function
as effective defenses to the application of the otherwise-governing foreign law, and (2) both
involve foreign laws enacted in jure imperiithat is, in the exercise of direct sovereign authority. The revenue rule stands for the proposition that, in the absence of a treaty, the courts of one
country do not directly enforce the tax judgments or laws of another country.116 At a minimum,
this means that American courts will not entertain a suit by a foreign government seeking to
directly enforce its tax laws or judgments.
Recently, lower courts have extended this practice to situations in which the foreign governments lawsuit would amount to indirect enforcement of its tax laws. For example, in Attorney
General of Canada v.R.J. Reynolds Tobacco Holdings, Inc.,117 the Second Circuit held that the
revenue rule barred a civil action brought under the RICO statute118 by the government of
Canada. The action sought damages for lost taxes and law enforcement costs resulting from
the defendants evasion of Canadian taxes by smuggling cigarettes across the U.S.Canadian
border. In a similar case, Republic of Honduras v.Philip Morris Companies, Inc.,119 brought by
Central American countries, the Eleventh Circuit reached the same result.
Both courts distinguished these cases from those in which the United States government
initiates a criminal prosecution premised on violations of foreign tax laws. Until 2005, the lower
courts were split as to whether the revenue rule barred such prosecutions. But in Pasquantino
v.United States,120 the Supreme Court resolved the split. The Court held that the revenue rule
does not bar prosecutions by the U.S.government, but express[ed] no view121 on whether the
rule bars civil RICO actions by foreign governments.
The Pasquantino defendants were convicted under the federal wire fraud statute for smuggling liquor into Canada and evading Canadian excise duties and other taxes. The defendants
argued, inter alia, that their prosecution violated the revenue rule, because it was premised solely
on violations of Canadian tax laws. The Court rejected the argument, holding that the revenue
rule did not bar the prosecution. Although the Court conceded that this criminal prosecution
enforces Canadian revenue law in an attenuated sense, it concluded that the connection was
too attenuated to contravene the revenue rule.122 The Court reasoned that, unlike cases in which
a foreign government seeks to recover taxes, this was a criminal prosecution brought by the
United States in its sovereign capacity to punish domestic criminal conduct. Such a prosecution,
116. See Restatement (Third) of Foreign Relations 483 (1987) (Courts in the United States are not
required to recognize or to enforce judgments for the collection of taxes, fines, or penalties rendered by
the courts of other states); Hay, Borchers & Symeonides, Conflict of Laws 1470, 147678. With regard to
sister states, most American states have statutes that expressly authorize the application of the tax laws of
sister states on the condition of reciprocity. Sister-state tax judgments have always been enforceable under
the Constitutions Full Faith and Credit clause.
117. 268 F.3d 103 (2d Cir. 2001), cert. denied, 537 U.S. 1000 (2002).
118. See 18 U.S.C 1965 (2015) (Racketeering Influenced and Corrupt Organizations).
119. 341 F.3d 1253 (11th Cir. 2003), cert. denied, 540 U.S. 1109 (2004).
120. 544 U.S. 349 (2005).
121. Id. at 365n.11.
122. Id. at366.
86
the Court reasoned, does not implicate any of the traditional rationales for the revenue rule,
such as the avoidance of judicial evaluation of foreign tax policies or giving domestic effect to
politically sensitive foreign policy decisions. Noting that the defendants were convicted for their
conduct in the United States, and not for the effects of that conduct in Canada, the Court also
rejected the argument that this decision gave extraterritorial effect to the wire fraud statute.123
V I . D O MI CI L E
Domicile is a concept that performs a variety of functions in American conflicts law. For example, it is the basis of: (1) general in personam judicial jurisdiction and diversity jurisdiction,
(2) prescriptive jurisdiction for tax and similar regulatory purposes, and (3) entitlement to
certain benefits, such as welfare or tuition.
Moreover, domicile is one of the most important connecting factors under both the traditional and modern choice-of-law approaches.124 For example, the First Restatement called for
the application of the law of a persons domicile to all succession and matrimonial property
matters involving movables.125 The Restatement (Second) relies on the same connecting factor,
albeit not exclusively. More important, under all modern American approaches, domicile has
become an important factor, even in the area of tort conflicts, where territoriality used to be the
dominant principle. For example, as documented in Chapter8, infra, when both the tortfeasor
and the victim are domiciled in the same state and the tort occurred in another state, most
courts apply the law of the common domicile to resolve loss-distribution conflicts.126
The basic principles regarding domicile are the same as in most other countries,
namely:(1)every natural person has a domicile at all times, (2)no person has more than one
domicile at a time, at least for the same purpose, (3) once established, a domicile continues
until another is acquired, and (4)in order to acquire a new domicile, a person must establish a
dwelling place with the intention of making it his or her home for an indefinite period of time.
Thus, domicile presupposes physical residence, but in addition requires the concurrent mental
element of intending to make it ones permanent (or at least indefinite) home.127
123.In European Cmty v. RJR Nabisco, Inc., 424 F.3d 175 (2d Cir. 2005), cert. denied, 546 U.S. 1092
(2006), the Second Circuit held that the revenue rule barred civil RICO actions brought by the European
Community and other countries against tobacco product manufacturers seeking damages for lost taxes
and related costs caused by the smuggling of contraband cigarettes into the plaintiffs territories. The
court distinguished Pasquantino on the ground that the involvement of the United States government
[which] was a key factor in determining the outcome of Pasquantino was absent in this action, which
was brought by foreign governments, not by the United States, and in which the executive branch ha[d]
given us no signal that it consent[ed] to this litigation. 424 F.3d at181.
124. Basic bibliography on domicile includes: Hay, Borchers & Symeonides, Conflict of Laws 285337;
Felix & Whitten, American Conflicts 25369; Weintraub, Commentary1654.
125. See supra 60.
126. See infra 194201.
127. Special rules govern the acquisition of domicile by persons of limited capacity, such as minor children or adults under guardianship, or persons whose freedom of choice is limited by other factors, such
as prisoners, soldiers, or government employees. For these rules as well as a fuller discussion and documentation of the principles governing domicile, see the sources cited supra, note 124.
87
Habitual residence, which is a concept used in several international conventions and is

something closer to domicile than to residence, is not in vogue in the United States. Also, the
term citizenship, rather than nationality, is used in the United States. National citizenship is
defined by federal law, whereas state citizenship depends on domicile. The federal Constitution
provides that persons who are U.S.citizens are also citizens of the state in which they reside,128
which in this context means domiciled. Many constitutional or statutory provisions use the
term residence when contemplating domicile. The mixed usage is also common in judicial
decisions. Indeed, because many decisions use the two terms interchangeably, it is often difficult to ascertain what was intended without examining the specific context.
With regard to corporations, a federal statute provides that, for purposes of diversity jurisdiction in federal court, a corporation is a citizen of the state in which it is incorporated, as well
as the state in which it has its principal place of business.129 Each of these contacts is also a basis
of general jurisdiction over a corporation in state courts. In addition, the place of incorporation is the critical connecting factor for choice-of-law purposes for matters involving the corporations internal affairs, while its principal place of business is a connecting factor equivalent
to domicile for other choice-of-law matters.
V I I . J U D I C I A L NOT I CE
A N D P R O O F O F F OR EI GN L AW
Jura novit curia (the court knows the law) is an ancient and widely accepted maxim in both
the civil-law world and the common-law world. Theoretically, a litigant does not need to prove
to the court the existence of the law on which her remedy is based. If such a law exists, the
court ought to know about it, take judicial notice of it sua sponte, and apply it to the case,
regardless of whether that litigant pleaded it or proved its content.
However, whether this maxim also applies to foreign law is something on which various legal systems disagree. Although civil-law systems have always answered this question
affirmatively, at least in theory,130 common-law systems began with a negative answer, and
then moved slowly toward the middle.131 They began by treating foreign law as a question of
128. U.S. Const. amend.XIV.
129. 18 U.S.C. 1332(c) (2015).
130. In these systems, the task of invoking foreign law and ascertaining its content is placed on the courts
rather than the litigants. As the Austrian codification provides, [i]f foreign law is determinative, it shall
be applied ex officio, and it shall be ascertained ex officio. Austrian codif. arts. 3 and 4.See also Peruvian
codif. art. 2051 (Foreign law which is declared applicable under the Peruvian conflict rules law must be
applied ex officio); Swiss codif. art. 16 (The content of [the applicable] foreign law is established ex officio); Armenian codif. art. 1255; Belarus codif. art. 1095; Bulgarian codif. art. 43; Croatian codif. art. 13(1);
Czech codif. art. 53; Dutch codif. art. 2; Estonian codif. art. 4; Hungarian codif. art. 5; Italian codif. art.
14; South Korean codif. art. 5; Slovenian codif. art. 12; Venezuelan codif. art. 60. Some recent codifications
provide that the court may request the parties assistance in establishing the content of the foreign law. See,
e.g., Belgian codif. art. 15; Estonian codif. art. 4; Swiss codif. art. 16; Turkish codif. art. 2.However, if the
content of the foreign law cannot be established, the court usually applies the law of theforum.
131. Basic American bibliography on this topic includes:Hay, Borchers & Symeonides, Conflict of
Laws 60213; Felix & Whitten, American Conflicts Law 26974; Weintraub, Commentary 12528;
M.S. Green, Horizontal Erie and the Presumption of Forum Law, 109 Mich. L. Rev. 1237 (2011);
88
fact, with all the resulting consequences regarding pleading, proof, and appellate review. For
example, when the content of foreign law was not proven, but the action was based upon it,
the court would either dismiss the action or apply the lex fori, on the basis of varying rationales or fictions.132 One such rationale was that the lex fori is the basic or residual law that
applies in all cases, unless a litigant demonstrates a good reason for its displacement. Such
reason is absent when the content of the competing foreign law is not proven. Another rationale was the often-fictitious assumption that the unproven foreign law was the same as the
law of theforum.
Eventually, common law courts, and later legislatures, began moving in the direction of
treating at least sister-state law as a question of law. By the middle of the twentieth century,
most states enacted statutes on judicial notice of foreign law, which were based on the Uniform
Judicial Notice of Foreign Law Act of 1936. Most of those statutes differentiated between sister-
state law and foreign-country law. Judicial notice was supposed to be compulsory with regard
to the former, and discretionary with regard to the latter. However, most American courts
simply ignored this compulsion and continued to place on the litigants the burden of invoking
and proving the content of even sister-statelaw.
Recognizing this reality, the Uniform Interstate and International Procedure Act of 1962
abandoned the judicial notice mandate, and blurred the distinction between sister-state and
foreign-country law. The new Act became a model for statutes in most states. It provided, in
part:
4.01 [Notice]. Aparty who intends to raise an issue concerning the law of any jurisdiction or
governmental unit thereof outside this state shall give reasonable notice in his pleadings or other
reasonable notice.
4.02 [Materials to be considered]. In determining the law of any jurisdiction or governmental
unit thereof outside this state, the court may consider any relevant material or source, including
testimony, whether or not submitted by a party or admissible under the rules of evidence.
4.03 [Court Decision and Review]. The court, not jury, shall determine the law of any governmental unit outside this state and its determination shall be subject to review on appeal as a
ruling on a question of law.133
In 1977, the National Conference of Commissioners on Uniform State Laws withdrew this
Act as obsolete because, in the meantime, many states enacted laws modeled after Federal
P. Hay, The Use and Determination of Foreign Law in Civil Litigation in the United States, 62 Am.
J. Comp. L. 213 (2014 Supp.); L. Kramer, Interest Analysis and the Presumption of Forum Law,
56 U. Chi. L. Rev. 1301 (1989); R. Michalski, Pleading and Proving Foreign Law in the Age of
Plausibility Pleading, 59 Buff. L.Rev. 1207 (2011); W. Reynolds, What Happens When Parties Fail
to Prove Foreign Law?, 48 Mercer L. Rev. 775 (1997); S. Sass, Foreign Law in Federal Courts, 29
Am. J.Comp. L. (1981); J. Sparkling & G. Lanyi, Pleading and Proof of Foreign Law in American
Courts, 19 Stan. J. Intl L. 3 (1983); M. Wilson, Demystifying the Determination of Foreign Law
in U.S. Courts:Opening the Door to a Greater Global Understanding, 46 Wake Forest L.Rev. 887
(2011).
132. See, e.g., Walton v.Arabian Am. Oil Co., 233 F.2d 541 (2d Cir.), cert. denied, 352 U.S. 872 (1956);
Geller v.McCown, 177P.2d 461 (Nev. 1947), rehg denied, 178P.2d 380 (Nev.1947).
133. Uniform Interstate and International Procedure Act, 13 U.L.A. 355 (1986).
89
Rule of Civil Procedure 44.1.134 Initially adopted in 1966, and slightly amended later, Rule 44.1
provides:
Determination of foreign law. Aparty who intends to raise an issue about a foreign countrys law
must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party
or admissible under the Federal Rules of Evidence. The courts determination must be treated as
a ruling on a question of law.135
Although in theory the above statutes and rules have altered the treatment of foreign law
from fact to law, in practice they have not done much to alleviate a litigants burden of having
to invoke and prove foreign law. Most certainly, they have not converted the American system
into one of taking ex officio notice of foreign law. As Peter Hay explains, even when authorized,
judicial notice, in the Americansense,
does not mean . . . that the court determines on its own what law applies . . . and then proceeds to
determine the content of the foreign law that it found to be applicable. . . . [T]he party intending
to rely on it must put foreign law in issue. Judicial notice then deals with the manner of determining the content of applicable foreign law. It is the court, not the fact-finding jury, that makes
the determination; the court is freeperhaps obligedto inform itself, and the ruling is then
treated as one on a question of law. Arequirement to take judicial notice is thus considerably
narrower than the civil laws standard of iura novit curia.136
When neither party raises the question of foreign law, or provides proof of its content, most
American courts will adjudicate the case under the law of the forum, even if, under the forums
choice-of-law rules, foreign law would govern the case.137 Courts do not worry about conflict
134. According to Hay, The Use and Determination of Foreign Law, supra note 131, at 23640, 22 states
continue to have statutes based on the Uniform Act, and 25 states have statutes paralleling Federal
Rule44.1.
135. 28 U.S.C.A. Rule 44.1. Although the current text of Rule 44.1 no longer requires the notice to be
timely, the accompanying Advisory Committee Notes reiterate this requirement by stating that the notice
shall be reasonable, and illustratively list three factors for determining reasonableness:
The stage which the case had reached at the time of the notice, the reason proffered by the party for
his failure to give earlier notice, and the importance to the case as a whole of the issue of foreign law
sought to be raised.
Id. Advisory Committee Notes. For cases discussing the timeliness of notice under Rule 44.1, see Northrop
Grumman Ship Sys., Inc. v.Ministry of Defense of Republic of Venezuela, 575 F.3d 491 (5th Cir. 2009); APL
Co. Pte. Ltd. v.UK Aerosols Ltd., 582 F.3d 947 (9th Cir. 2009); In re Griffin Trading Co., 683 F.3d 819 (7th Cir.
2012), rehg and rehg en banc denied (Aug. 7, 2012). For a case decided under a similar state rule, see Storey
v.Leonas, 904 N.E.2d 229 (Ind. Ct. App.2009), rehg denied (June 10, 2009), transfer denied (Sept. 24,2009).
136. Hay, The Use and Determination of Foreign Law, supra note 131, at 22324.
137.For a codification of this practice, see Or. Rev. Stat. 15.430 (2015). This statute provides that
Oregon law governs noncontractual claims in actions in which none of the parties raises the issue of
applicability of foreign law, or in which the party or parties who rely on foreign law fail to assist the
court in establishing the relevant provisions of foreign law after being requested by the court to doso.
90
of laws unless the parties disagree on which states law applies,138 one court said, while another
court added:We dont see why the district court should be put to the bother of investigating
foreign law when no party is asking it to do so.139 Cases taking this position are too numerous
to count.140 An amazingly high number of conflicts cases thus go undetected.141 The fiction that
the parties tacitly acquiesce to the application of forum law may be economical for the court
and convenient for one sides attorneys, but only rarely does it serve the interests of bothsides.
In an adversary system, the burden for raising the choice-of-law question, and proving the
content of foreign law, and the blame for failing to carry that burden falls on the parties, not
the court. Most judges do not have the time, knowledge, or scholarly predilection to undertake
their own research on foreign law.142 As a respected federal judge observed, judges have quite
a few things to do besides decoding the Codigo Civil.143 Thus, when a litigant whose case
depends on foreign law fails to prove its content to the courts satisfaction, that litigant will bear
the adverse consequences.144
The Advisory Committee Notes accompanying Rule 44.1 state, that in determining the content of foreign law,
[T]he court is not limited by material presented by the parties; it may engage in its own research
and consider any relevant material thus found. The court may have at its disposal better foreign
138. Wood v.Mid-Valley Inc., 942 F.2d 425, 427 (7th Cir.1991).
139. Adams v.Raintree Vacation Exch., LLC, 702 F.3d 436, 438 (7th Cir. 2012), rehg en banc denied, 705
F.3d 673 (7th Cir. 2013), cert. denied, 133 S.Ct. 2862 (2013). This was a contract case, in which the contract contained a Mexican choice-of-law clause, but neither party invoked Mexican law, and both relied
extensively on forum law. The court concluded that by so doing, the parties waived the choice-of-law
question and freed the trial court to apply forumlaw.
140. See, e.g., Shoen v.Shoen, 292P.3d 1224 (Colo. Ct. App.2012) (holding that plaintiff forfeited his right to
argue that Arizona law should govern, because he did not raise this issue until after the trial court ruled on dispositive issues that depended on forum law); In re Estate of Pullen, 810 N.W.2d 532 (Iowa Ct. App.2012) (holding that, because plaintiffs failed to prove Nebraska law, the trial court was entitled to assume that Nebraska
law was the same as Iowa law, and thus the trial court properly applied Iowa law); Republic of Panama v.Am.
Tobacco Co., 2006 WL 1933740 (Del. Super. July 13, 2006), affd, 919 A.2d 1116 (Del. 2007)(applying Delaware
law and dismissing the action because plaintiffs failed to prove the content of foreignlaw).
141. See S. Symeonides, Private International Law at the End of the 20th Century: Progress or Regress?,
67 (2000).
142. For exceptions, see Bodum USA, Inc. v.La Cafetire, Inc., 621 F.3d 624 (7th Cir. 2010)(discussed
infra); Sunstar, Inc. v.Alberto-Culver Co., 586 F.3d 487 (7th Cir.2009).
143. M. Pollack, Proof of Foreign Law, 26 Am. J.Comp. Law 470, 471 (1978).
144. See, e.g., Masood v. Saleemi, 309 F. Appx 150 (9th Cir. 2009) (concluding that plaintiff failed to
establish clearly or compellingly the content of Pakistani succession law); Schoeps v. Andrew Lloyd
Webber Art Found., 884 N.Y.S.2d 396 (N.Y. App. Div. 2009) (same regarding German succession law);
In re Marriage of Nurie, 98 Cal. Rptr. 3d 200, 176 Cal. App.4th 478 (2009), rehg denied, review denied
(same regarding Pakistani custody law); Banque Libanaise Pour Le Commerce v.Khreich, 915 F.2d 1000
(5th Cir.1990), rehg denied (5th Cir. 1990)(same with regard to Abu Dhabi law); Colvin v.Colvin, 291
S.W.3d 508 (Tex. App. 2009) (affirming trial courts refusal to apply Louisianas interspousal-immunity
rule, because the submitted excerpt from the Louisiana Civil Code containing the rule was inconclusive).
See also Carey v. Bahama Cruise Lines, 864 F.2d 201, 205 (1st Cir. 1988) (noting that Rule 44.1 does
not oblige a court to determine foreign law on its own); McGhee v. Arabian Am. Oil Co., 871 F.2d
1412, 1424, n.10 (9th Cir. 1989)([N]othing requires the court to conduct its own research into obscure
sources); Bel-Ray Co., Inc. v.Chemrite Ltd., 181 F.3d 435, 440 (3d Cir.1999).
91
law materials than counsel have presented, or may wish to reexamine and amplify material that
has been presented by counsel in partisan fashion or in insufficient detail. On the other hand, the
court is free to insist on a complete presentation by counsel.145
Indeed, the court is not limited to materials submitted by the parties, and this includes
testimony of their experts, which is perhaps the most common method of proving the content
of foreign law.146 In fact, at least one judge, Judge Posner, expressed his preference for his own
research, after expressing grave misgivings about the reliability of experts retained by the parties. In his words, these experts are selected on the basis of the convergence of their views
with the litigating position of the client, or their willingness to fall in with the views urged
upon them by the client.147 Posner particularly deplored the practice of prefer[ring] paid
affidavits and testimony to published materials when dealing with laws of English-speaking
countries that share our legal origins, and characterized as only a little less perverse the
same practice when dealing with the law of a country whose official language is not English,
at least if [it] is a major country and has a modern legal system.148 Judge Wood disagreed
with the view that expert testimony is categorically inferior to published, English-language
materials.149 Noting that Rule 44.1 does not establish any hierarchy for sources of foreign law,
Wood cautioned:
Exercises in comparative law are notoriously difficult, because the U.S. reader is likely to miss
nuances in the foreign law, to fail to appreciate the way in which one branch of the other countrys
145. Federal Rules of Civil Procedure, Rule44.1.

146. For cases evaluating conflicting expert testimony, or containing good discussion of foreign law, see
In re Vivendi Universal S.A. Securities Litig., 242 F.R.D. 76 (S.D.N.Y 2007)(involving the laws of Austria,
England, France, and The Netherlands); Bangaly v.Baggiani, 20 N.E.3d 42 (Ill. App. Ct. 2014)(Mali law);
Agrofollajes, S.A.v.E.I. Du Pont De Nemours & Co., Inc., 48 So. 3d 976 (Fla. Dist. Ct. App.2010) (Costa
Rican law); Canales Martinez v.Dow Chem. Co., 219 F.Supp.2d 719 (E.D. La. 2002)(same); Schoeps
v.Andrew Lloyd Webber Art Found., 884 N.Y.S.2d 396 (N.Y. App. Div. 2009)(German inheritance law);
Nordwind v.Rowland, 584 F.3d 420 (2d Cir. 2009)(same); Stroitelstvo Bulgaria Ltd. v.Bulgarian-Am.
Enter. Fund, 589 F.3d 417 (7th Cir. 2009) (Bulgarian law); Baker v. Booz Allen Hamilton, Inc., 2009
WL 5125672 (4th Cir. Dec. 28, 2009) (Kyrgyzstan law); Hernandez v. Ford Motor Co., 760 N.W.2d
751 (Mich. App. 2008), appeal denied, 759 N.W.2d 396 (Mich. 2009) (Mexican law); Morales v. Ford
Motor Co. 313 F.Supp.2d 672 (S.D. Tex. 2004)(Venezuelan law); In re Bridgestone/Firestone, Inc., 190
F.Supp.2d 1125 (S.D. Ind. 2002)(same); Chandler v.Multidata Sys. Intl Corp., 163 S.W. 3d 537 (Mo.
Ct. App. 2005) (Panamanian law); Ou Kullasadu Invest v. Kask, 2009 WL 2595651 (Wash. Ct. App.
Aug. 24, 2009)(comparing Estonian and Washington community property law); Korea Water Resources
Corp. v.Chong Sung Lee, 2009 WL 4646018 (Cal. Ct. App. Dec. 8, 2009)(describing South Korean civil
procedure).
147. Bodum USA, Inc. v.La Cafetire, Inc., 621 F.3d 624, 633 (7th Cir. 2010). Posner expressed similar
views in Sunstar, Inc. v.Alberto-Culver Co., 586 F.3d 487 (7th Cir.2009).
148. Bodum USA, 621 F.3d at 633. Such practice is excusable only when the foreign law is the law of a
country with such an obscure or poorly developed legal system that there are no secondary materials to
which the judge could turn. Id. at 63334. Posner noted that, although most Americans are monolingual,
including most judges, there is an abundance of English materials on French law. And that linguistic
provincialism does not excuse intellectual provincialism. Id. at633.
149. Id. at 638 (Wood, J., concurring).
92

law interacts with another, or to assume erroneously that the foreign law mirrors U.S.law when
it does not.150
Although some judges, such as Posner, are willing and able to conduct their own research,
they are the exception that simply confirms the rule that the burden remains with the parties.
[T]he court is free to insist on a complete presentation by counsel151 of the pertinent provisions of foreign law, and many courts do precisely that. As the authors of an established treatise
have observed, judges expect adequate expert testimony on foreign law and the failure to
produce it may be quite damaging to a litigants case, such as dismissal of his or her claim (or
defense) or the application of unfavorable forum law.152
150. Id. at 63839. Foreign-law experts, who often are the authors of the leading treatises, can help the
court by efficiently providing the needed context and precision, said Wood, and the court is fully capable
of testing their objectivity. Id. at639.
151. Advisory Committee Notes, supra note135.
152. C.A. Wright & A.R. Miller, Federal Practice & Procedure 2444 (3d ed.1998).
five
The Choice-of-Law Revolution:

Theoretical Groundwork
American conflicts law, and choice of law in particular, is one of the few branches of American
law that has been heavily influenced by academic writers. Whether this is due to the perceived
esoteric nature of the subject matter,1 the dearth of English precedent or doctrine during the
formative period of American conflicts law,2 or the relatively infrequent occurrence of conflicts
cases in generalwhich slows the accumulation of judicial expertise on the subjectis beside
the point. The fact remains that it was academic writers, such as Joseph Story, Francis Wharton,
and Joseph Beale, who provided the theoretical underpinnings of the traditional choice-of-
law system from the nineteenth to the middle of the twentieth century.3 It was also academic
writers, such as Walter W. Cook, David F. Cavers, and Brainerd Currie, who pinpointed
the deficiencies of that system and instigated dissension from it by uproot[ing] specious
doctrines [and] extirpat[ing] noxious decisions.4
That system had its academic critics even before it was codified in the First Restatement
in 1933.5 But the Restatements rigidity and doctrinaire quality provided a clearer target and
additional grounds for criticism. Gradually increasing in frequency and intensity, academic
critiques eventually found their way into judicial decisions. Beginning in the 1960s, judicial
1. See F. Juenger, Selected Essays on the Conflict of Laws ix (2001) (Regarded as an arcane science far
removed from real world concerns, and characterized by an esoteric vocabulary, [conflicts law] inevitably
attracts speculative minds whose forte is not necessarily common sense.).
2. See supra 5152.
3. See supra 5256.
4. D.F. Cavers, Book Review (reviewing W.W. Cook, The Logical and Legal Bases of the Conflict of Laws),
56 Harv. L.Rev. 1170, at 1173 (1943).
5. The main critics of the pre-Restatement period were Walter W.Cook (18731943), Ernest G.Lorenzen
(18761951), and Hessel E.Yntema (18911966). Cooks writings are discussed infra. For Lorenzens critiques, see E.G. Lorenzen & R.J. Heilman, The Restatement of the Conflict of Laws, 83 U. Pa. L.Rev. 555
(1935); E.G. Lorenzen, Territoriality, Public Policy and the Conflict of Laws, 33 Yale L.J. 736 (19231924);
E.G. Lorenzen, Validity and Effects of Contracts in the Conflict of Laws, 30 Yale L.J. 565 (19201921).
For Yntemas critiques, see H.E. Yntema, The Hornbook Method and the Conflict of Laws, 37 Yale L.J.
468 (1928); H E. Yntema, Restatement of the Law of Conflict of Laws, 36 Colum. L. Rev. 183 (1936).
93
94
dissension from the traditional system took on the appearance, and eventually the dimensions
and intensity of, a figurative rebellion against it. This movement, which came to be known as
the American choice-of-law revolution, is discussed in the next chapter.
This chapter discusses the role of academic authors in instigating and, to some extent, guiding this movement during its early years. The discussion covers the writings of 10 authors:Walter
W.Cook (18731943), Robert A.Leflar (19011997), David F.Cavers (19021988), Brainerd
Currie (19131965), Willis L.M. Reese (19131990), Arthur T. von Mehren (19222006),
Donald T.Trautman (19241993), William F.Baxter (19291998), Russell J.Weintraub (1929
2012), and Friedrich K.Juenger (19302001). As the years in parentheses indicate, all but one
of these authors were born in the twentieth century, and all but three of them passed away
during the same century.6
I I . T H E F I R S T CR I T I CS
A. WALTER W. COOK
One of the earliest and most outspoken critics of the established choice-of-law system was
Professor Walter W.Cook (18731943).7 Together with Judge Learned Hand,8 Cook is usually
referred to as the author of the local law theory. This theorywhich is no more memorable
than the vested right theory Cook intended to displacewas Cooks attempt to explain the
seemingly paradoxical application of foreign law and reconcile it with the forums sovereignty.
Cook argued that, in adjudicating cases that otherwise would be governed by foreign law, the
forum neither applies foreign law nor enforces a foreign vested right. Instead, it recreates the
foreign right by fashioning a local law remedy that approximates the result that the pertinent
foreign law would produce.9
Besides being of dubious explanatory value,10 this theory had the potentially regressive
effect of overemphasizing the role of the lex fori. Cooks subliminal message was that the
See also R.J. Heilman, Judicial Method and Economic Objectives in Conflict of Laws, 43 Yale L.J. 1082
(19331934).
6. For contemporary authors, see infra 11521.
7. Cooks critiques of the then-prevailing approach are found in W.W. Cook, The Logical and Legal Bases
of the Conflict of Laws (1942), a collection of 18 essays previously published in various law reviews. Of the
latter, four essays were published before the promulgation of the First Restatement.
8. See Guinness v.Miller, 291 F.769, 770 (D.N.Y. 1923), aff d, 299 Fed. 538 (2d Cir. 1924), aff d in part,
revd in part, 269 U.S. 71 (1925).
9. See Cook, supra note 7, at2021:
[T]he forum, when confronted by a case involving foreign elements, always applies its own law to the
case, but in doing so adopts and enforces as its own law a rule of decision identical, or at least highly
similar though not identical, in scope with a rule of decision found in the system of law in force in
another state or county with which some or all of the foreign elements are connected. . . . The rule
thus incorporated into the law of the forum . . . . [T]he forum . . . enforces not a foreign right but
a right created by its ownlaw.
10. See A. Riles, A New Agenda for the Cultural Study of Law:Taking on the Technicalities, 53 Buff. L.Rev.
973, 996 (2005) (Cooks own theory of local law was not so much a theory as an elaboration of
The Choice-of-Law Revolution
95
function of conflicts law is not to preserve the international order, but rather to carry out local
law and policy. This message was a drastic departure from the universalistic conception of PIL
that characterized earlier generations of American scholars, including Story and evenBeale.
Cooks main contribution to American conflicts law was not in proposing a new theory,
but rather in deconstructing the traditional theory11 and freeing the intellectual garden of
conflicts law of rank weeds to facilitate the planting and growth of useful vegetables.12
Cook was a deconstructionist, long before that term became fashionable. He argued that the
Restatements professed goals of predictability and uniformity were illusory, because of the
multiple escape devices that judges could and did use. He posited that the Restatements seemingly simple but excessively broad principles neither accurately described what courts do nor
adequately guided them in what they should do. Reasoning that a simplistic, static system
based on prefabricated rules could not provide workable solutions to complex problems, he
advocated for a set of guiding principles that would provide both a modicum of certainty and
continuity of growth.13 More than a generation later, the drafters of the Restatement (Second)
must have heeded this advocacy, as they opted for an approach rather than a system of rules.14
Although Cook himself never developed such an approach,15 he did plant some valuable
seeds, even if they took decades to germinate. For example, in response to the basic question
of how the forum court should choose the foreign law on which to model its rule of decision,
Cook pointed to the same method actually used in deciding cases involving purely domestic
torts, contracts, property, etc.16 His resort to the domestic method for handling conflicts
cases anticipated Brainerd Curries conception of the choice-of-law process as one based on
the ordinary process of construction and interpretation.17 Cooks instrumentalist reference to
socially useful solutions to conflicts problems also anticipated the result-selectivity of many
judicial decisions and academic commentators, and the notion that courts should not sacrifice
the exact opposite premises to vested rights. It simply held, following standard Realist dogma, that the
adjudication of a right in effect created the right.); L. Brilmayer, Rights, Fairness, and Choice of Law, 98
Yale L.J. 1277, 1283 (1989) ([if] rights come into existence once a court had decided a case , how
could rights come into being before the final judgment was actually paid?). For a contemporaneous critique, see F.L.de Sloovre, The Local Law Theory and Its Implications in the Conflict of Laws, 41 Harv.
L.Rev. 421 (1928).
11. According to Brainerd Currie, Cook discredited the vested-rights theory as thoroughly as the intellect of one man can ever discredit the intellectual product of another. Brainerd Currie, Selected Essays on
the Conflict of Laws 6 (1963).
12.Cook, supra note 7,atx.
13. See W.W. Cook, An Unpublished Chapter of the Logical and Legal Bases of the Conflict of Laws, 37
U. Ill. L.Rev. 418 (1943). The quoted phrase is from John Dewy, Human Nature and Conduct 244 (1922)
(Continuity of growth not atomism is the alternative to fixity of principles and aims.).
14. See infra 111 et seq.
15. Even David Caversa Cook ally and Beale criticacknowledged that Cook d[id] not offer a substitute order, and that, although he invoke[d]social and economic considerations [he] seldom
present[ed] them. Cavers, supra note 4, at 1172. Although he was sympathetic to Cooks metaphor about
weeding the intellectual garden, Cavers thought that Cook and his fellow gardeners, including Cavers,
had busied themselves chiefly with weed eradication and not with planting. Id. at 1173. Cavers thought
that it was high time to begin planting useful vegetables.Id.
16.Cook, supra note7.
17. See Currie, Selected Essays on the Conflict of Laws 18384 (1963), discussed infra 98.
96
material justice in the pursuit of conflicts justice.18 Moreover, Cooks admonition that one
should consider legislative purposes and policies before a wise choice between conflicting
rules can be made19 suggests that, like many modern American scholars, Cook thought of the
choice-of-law problem as one of choosing between competing rules, not competing states or
jurisdictions in the abstract.
B. DAVID F.CAVERS
Professor David F. Cavers (19021988), who at that time shared many of Cooks legal-realist
convictions, continued the attack on the traditional system. In a pioneering law review article,
Cavers further exposed the mechanical nature of the traditional methodology. He compared it to
a slot machine, programmed to select the applicable law in a blindfolded fashion, based solely
on territorial contacts, regardless of the content of the implicated laws.20 In his view, this exclusive reliance on territorial contacts and the insistence on using jurisdiction-selecting rules not
only prevented a more individualized treatment of conflicts cases, but also intelligent choices.
After all, Cavers observed, [t]he court is not idly choosing a law; it is deciding a controversy.
How can it choose wisely without considering how that choice will affect that controversy?21
Cavers proposed a drastic rearrangement of the priorities of the choice-of-law process. He
contended that, rather than choosing between states or jurisdictions without regard to how
their laws would regulate the case at hand, the courts should choose between the conflicting
legal rules based, in large part, on the result each rule would produce in the particular case.
Rather than choosing on the basis of territorial contacts, the court should focus directly on the
content of the competing rules and their underlying policies, the peculiarities of the particular
case, and the need to ensure justice for the involved parties. Although this proposal fell short
of articulating a comprehensive alternative to the First Restatement, it did provide direction to
the search for alternative methodologies.
In 1965, Cavers returned to the conflicts scene with his seminal book The Choice of Law
Process.22 This book set forth his position regarding many of the new ideas that revolution had
generated. Although for the most part Cavers remained sympathetic to some basic tenets of
Brainerd Curries interest analysis (discussed below), he disassociated himself from Curries
solution of true conflicts and his insistence that conflicts should be resolved on an entirely ad
hoc basis. The judicial applications of interest analysis convinced Cavers that Curries rejection
of all choice-of-law rules was ill-advised. Cavers saw the need for providing judges with sufficiently specific directives that would facilitate principled choice-of-law decisions.
To that end, Cavers formulated seven principles of preference, five for tort and two for
contract conflicts. Cavers conceded, without apology, a territorial bias in his torts principles.23 The fact that he was one of the first and most effective critics of the blind and mechanical
19.Cook, supra note 7, at 46 (emphasis added).
20. See D. Cavers, A Critique of the Choice-of-Law Problem, 47 Harv. L.Rev. 173, 178 (1933).
21. Id. at189.
22. D. Cavers, The Choice of Law Process (1965).
23. Id. at 134,139.
97
territorialism of the traditional theory enabled him credibly to urge a return to what he termed
a principled territorialism. Its difference from traditional territorialism was that Caverss version did not base the choice of law solely on a states territorial contacts, but rather on the presence of the right combination of contacts andlaws.
For example, his first principle for torts covered situations in which the injury is in one
state and either the conduct or the tortfeasors domicile is in another state. The principle calls
for the application of the law of the state of injury, but only if that law set[s]a higher standard
of conduct or of financial protection against injury than do the laws of the [other] state.24 His
second principle covered situations in which the conduct and the injury are in one state and
the victims domicile is in another. The principle called for the application of the law of the
former state, if that law provides for a lower standard of conduct or of financial protection
than the victims domicile.25 Thus, Cavers was the first to implement the concept of content-
oriented law-selection, as opposed to content-blind jurisdiction-selection.26
I I I . A F R O NTA L AT TA CK:
B R A I N E RD CUR R I E
Although Cook and Cavers demonstrated the deficiencies of the traditional system, it was
Professor Brainerd Currie (19131965) who inflicted the decisive blow. Currie built on the
foundations they and others provided, and he enunciated a new approach in a series of law
review articles published in the 1950s and early 1960s.27 His approach consists of the following basic components, which are discussed below:(1)his rejection of choice-of-law rules, in
favor of the domestic method of statutory construction and interpretation; (2)the notion that
states have a governmental interest in the outcome of conflicts cases; (3)his narrow conception of those interests; (4) the concepts of true and false conflicts and unprovided-for
cases; and (5)a de facto and de jure forum favoritism.
A. ANTI-RULISM
Currie issued a categorical indictment of not only the particular choice-of-law rules of the First
Restatement, which have not worked and cannot be made to work,28 but also of all choice-
of-law rules in general. Assuming that all such rules were not only bad, but also harmful, he
proclaimed that [w]e would be better off without choice-of-law rules.29
24. Id. at139.
25. Id. at146.
26. See Symeonides, Choice-of-Law Revolution 394404.
27. These articles are collected in Currie, Selected Essays on the Conflict of Laws (1963).
28. Id. at180.
29. Id. at 183. See also id. at 180 (The [traditional] rules have not worked and cannot be made to
work But the root of the trouble goes deeper. In attempting to use rules we encounter difficulties that
stem not from the fact that the particular rules are bad, but rather from the fact that we have such
rules at all.).
98
Although this is the least noticed and criticized of Curries postulates, it is the one
directly responsible for why American conflicts law rejected the route of reform in favor of
revolution.
B. THE DOMESTIC METHOD

To fill the void left by his rejection of choice-of-law rules, Currie resorted to the method of
statutory construction and interpretation that courts employ in wholly domestic cases. In
Curries words, [j]ust as we determine by that process how a statute applies in time, and how
it applies to marginal cases, so we may determine how it should be applied to cases involving
foreign elements.30 Although this was not a new idea, it entailed several interrelated consequences, including the following:
(1) rejection of the theretofore prevailing assumption that conflicts cases are so different
from wholly domestic cases as to require a distinctive mode of refereeing that draws
from principles superior, or at least external, to the involved states. Indeed, Currie
rejected the existence of an overarching legal order that delineates a priori the legislative jurisdiction of each state. He believed that, in searching for choice-of-law solutions, the forum should look inward rather than upward;
(2) the rejection of pre-established choices, in favor of an ad hoc judicial choice of the
applicablelaw;
(3) the rejection of multilateralism, in favor of unilateralism;and
(4) rejection of the notion that the choice of the applicable law could be made on the basis
of territorial contacts alone, regardless of the content of the substantive laws of the
contact states.
In sum, rather than choosing the applicable law through preordained choice-of-law rules
that were oblivious to the content of the conflicting laws, Curries approachlike Caverss
focused directly on the content of the involved states laws and, through the ordinary process
of construction and interpretation, identified their respective policies and, depending on those
policies, delineated their spatialreach.
C. THE CONCEPT OFGOVERNMENTAL INTERESTS

According to Currie, whenever a case falls within a laws spatial reach, as delineated by the
interpretative process, the state from which that law emanates has a governmental interest
in applying it in order to effectuate its underlying policy.31 In Curries words, an interest
is the product of (1)a governmental policy and (2)the concurrent existence of an appropriate relationship between the state having the policy and the transaction, the parties, or the
30. Id. at184.
31. See id. at 189 ([T]he court should inquire whether the relationship of the forum state to the
case at bar is such as to bring the case within the scope of the states governmental concern, and to
provide a legitimate basis for the assertion that the state has an interest in the application of its policy in
this instance.).
99
litigation.32 In this way, Currie projected his legal-realist conception of law as an instrument
of social control33 at the interstate level, by postulating that states have an interest in the outcome of litigation between private parties.
D. CURRIES ASSUMPTIONS
ABOUT STATE INTERESTS
The notion that a state may have an interest in private-law disputes between private parties was
not a novel one in American law, domestic or interstate. For example, this idea had figured prominently in a cluster of U.S. Supreme Court decisions in the 1930s interpreting the Full Faith and
Credit clause of the Constitution.34 What was new, and what attracted immediate criticism,35 was
Curries partisan articulation of this concept. He thought and wrote in terms of a states yearning to maximize its gains at the expense of other states policies, rather than in terms of a states
need to avoid impairment of its own strongly held policies. Indeed, as we shall see later,36 the
main problem with Curries interest-theory was not so much the core concept of state interests,
but rather his narrow assumptions about the nature and scope of those interests. In particular:
(1) Currie refused to consider a states multistate interestsnamely, interests that, though
not reflected directly in a states domestic law, stem from the states membership in a
broader community of states;37
(2) Currie assumed that, in the vast majority of cases, a state has an interest in applying its law only when it would benefit its own domiciliaries, but not when it would
32. Id. at 621. But see L. McDougal, Choice of Law:Prologue to a Viable Interest-Analysis Theory, 51 Tul.
L.Rev. 207, 212 (1977) ([A]n interest is not the product of a policy; rather a policy reflects underlying
interests. Interests give rise to the promulgation of policies and not vice versa.).
33.Currie, supra note 27, at 64. For the influence of American Legal Realism and other philosophical trends on American choice-of-law thinking, see S. Symeonides, An Outsiders View of the American
Approach to Choice of Law: Comparative Observations on Current American and Continental Conflicts
Doctrine 20234 (1980).
34. See Bradford Elec. Light Co. v.Clapper, 286 U.S. 145 (1932); Alaska Packers Assn v.Indus. Accident
Commn, 294 U.S. 532 (1935); Pacific Emprs Ins. Co. v.Indus. Accident Commn, 306 U.S. 493 (1939). See
also Watson v.Emprs Liab. Assur. Corp. Ltd., 348 U.S. 66 (1954).
35.Among the early critics, see 1A. Ehrenzweig, Private International Law 63 (1967); D. Evrigenis,
Tendances doctrinales actuelles en droit international priv, 118 Recueil des cours 313 (1966); A. Hill,
Governmental Interest and the Conflict of Laws: A Reply to Professor Currie, 27 U. Chi. L. Rev. 463
(1960); G. Kegel, The Crisis of Conflict of Laws, 112 Recueil des cours 91, 180182 (1964); M. Rheinstein,
How to Review a Festschrift, 11 Am. J.Comp. L. 632 (1962).
36. See infra 105.
37. For example, Currie specifically dismissed the view that a state should be guided in its choice-of-
law decisions by the needs of the interstate and international system. Currie, supra note 27, at 614. He
thought that, because of its international origins, the traditional system was overtaken by the compulsion of internationalist and altruist ideals; it had guiltily suppressed the natural instincts of community
self-interest [and] enforce[d]a purposeless self-denial. Id. at 525. To compensate for this, Currie
championed the rational, moderate and controlled pursuit of self-interest. Id. These adjectives offered
some reassurance, as did his statements that [t]he shortsighted, selfish state is nothing more than an
experimental model, and that [n]o such state exists, at least in this country. Id. at 616. Nevertheless,
both the whole tenor and many of the specifics of his theory were far less moderate.
100
benefit similarly situated non-domiciliaries38 (a notion referred to hereafter as Curries

personal-law principle);and
(3) Currie specifically downplayed the interests of the individuals involved in the conflict,
as opposed to the interests of their respective home states.39
Because of these postulates, some critics charged that Curries approach was constitutionally infirm.40 Curried anticipated and responded to that charge,41 but the real problem with
Curries protectionist postulates was not their constitutional permissibility in the abstract, but
rather their appropriateness, especially in interstate conflicts.42
E. FALSE, TRUE AND IN-BETWEEN CONFLICTS

In Curries view, when a litigant argues that the court should apply foreign law to a multistate
case, the court should first inquire into the policies embodied in the laws of the involved states,
asking whether it is reasonable for each state to assert an interest in applying its respective law
to effectuate its policies. This inquiry may lead to three possibilities, which in turn correspond
to the three well-known (if not well-accepted) categories of conflicts:
(1) only one of the involved states is interested in applying its law (the false conflict
pattern);
(2) more than one state is interested (the true conflict pattern);or
(3) none of the states are interested (the no-interest pattern or unprovided-for case).43
38. Currie argued that a state has an interest in applying its pro-plaintiff rules only for the benefit of local
plaintiffs and its pro-defendant rules only for the benefit of local defendants. See id. at 691721 (arguing
that New Yorks unlimited compensatory-damages law is not for the protection of all who buy tickets
in NewYork, or board planes there. It is for the protection of NewYork people.); id. at 724, and 8586
(arguing that a state that has a guest-statute, or a pro-defendant contract rule, has an interest in applying
it, only if the defendant is domiciled in that state).
39. See id. at 610 (stating that Currie found no place in conflict-of-laws analysis for a calculus of private
interests [because] [b]y the time the interstate plane is reached the resolution of conflicting private interests has been achieved; it is subsumed in the statement of the laws of the respective states.).
40. See, e.g., J. Ely, Choice of Law and the States Interest in Protecting Its Own, 23 Wm. & Mary L.Rev.
173 (1981); D. Laycock, Equal Citizens of Equal and Territorial States:The Constitutional Foundations of
Choice of Law, 92 Colum. L.Rev. 249 (1992).
41. Currie argued, in essence, that his theory was not unconstitutional, because the Constitution would
not allow it to be. See Currie, supra note 27, at 12326, 185, 191, 280, 285 (stating that the Equal Protection
and Privileges and Immunities clauses of the Constitution would help control undue protectionism); id.
at 271, 28081, 191 (stating that the Due Process and Full Faith and Credit clauses would help control
excessive forum favoritism). Ironically, Currie was correct, in the sense that:(1)the Supreme Court does
not judge the constitutionality of theories in the abstract, but rather limits itself to deciding whether the
application of a theory in the particular case produces an unconstitutional result; and (2)knowing this,
reasonable courts will be careful not to apply Curries theory in an unconstitutional manner, and thus the
theory will not be found unconstitutional.
42. See S. Symeonides, The Choice-of-Law Revolution Fifty Years after Currie:An End and a Beginning,
2015 U. Ill. L.Rev. 1847, 185167 (2015).
43. In his later work, Currie recognized a fourth category, what he called an apparent conflict, which is
something between a false and a true conflict. In his words, an apparent conflict is a case in which each
101
To be sure, whether a conflict falls into one or the other categories is a question that different analysts often answer differently. Even accepting the concept of state interests in the
abstract, there is plenty of room for disagreement on whether a state has an interest in the particular case, to say nothing of measuring the strength of that interest.44 Nevertheless, the above
three categories are useful in providing a common vocabulary and a framework for analysis,
and they have been accepted in the literature beyond interest analysis.
As explained below, Currie argued that, subject only to constitutional restraints, the forum
is entitled to, and should, apply its law to all of the above cases, except those false and apparent
conflicts in which the forum has no real interest in applying itslaw.
In false conflicts, Currie would apply the law of the only interested state, which in the
majority of cases is likely to be the forum state. This part of Curries analysis is neither controversial nor controvertible, at least for those who subscribe to the view that consideration of
state interests is a proper starting point for resolving conflicts of laws. In contrast to the traditional theory, which, by failing to inquire into state interests, had the propensity to randomly
sacrifice the interests of one state without promoting the interests of another state, Curries
solution to an admittedly false conflict can effectuate the policies of an interested state without
sacrificing any policies of an uninterestedstate.
In this sense, the concept of a false conflict was an important breakthrough in American
choice-of-law thinking, and has become an integral part of all modern policy-based analyses.
That this concept is by now taken for granted, even by Curries critics, and forms the common
denominator of all modern choice-of-law methodologies is no reason to deny him the credit
he is rightfully due. Even if this were Curries only contribution to conflicts theory, it would be
sufficient to secure him a permanent position in the conflicts Hall ofFame.
However, Curries solutions to the other categories of conflicts are questionable. Under
Curries analysis, true conflicts are to be resolved by the application of the law of the forum,45
because a court may not subordinate the forums interests to those of another state.46 Indeed,
the very possibility of such a subordination impelled Currie to insist that judges should not
even attempt to weigh the interests of the two states. His explanation was that judges have
neither the constitutional power nor the requisite resources to weigh conflicting governmental
state would be constitutionally justified in asserting an interest, but on reflection the conflict is avoided
by a moderate definition of the policy or interest of one state or the other, or a case in which reasonable men may disagree on whether a conflicting interest should be asserted. B. Currie, The Disinterested
Third State, 28 Law & Contemp. Probs. 754, 763, 764 (1963).
44. For this reason, Ihave proposed substituting the term direct conflict for Curries true conflict category, and the term inverse conflict for Curries unprovided-for category. See Symeonides, Choice-of-
Law Revolution 16263, 27273.
45. Atrue conflict may arise before an interested or a disinterested forum. In the first situation, Currie
advocated the application of the law of the forum for reasons stated in the text. In the second situation, Currie argued that the court should dismiss on forum non conveniens grounds, and, if such dismissal is not possible, then forum law should govern, at least when that law corresponds with the law of
one of the interested states. See Currie, supra note 43, at 765, 777 et seq. Alternatively, Currie suggested,
the court might decide the case by a candid exercise of legislative discretion, resolving the conflict as
it believes it would be resolved by a supreme legislative body having power to determine which interest
should be required to yield. Curries summary, reproduced in S. Symeonides & W. Perdue, Conflict of
Laws:American Comparative International, 13839 (3d ed.2012).
46. See B. Currie, Comments on Babcock v. JacksonA Recent Development in Conflict of Laws, 63
Colum. L.Rev. 1233, 123738 (1963) (In the absence of action by higher authority, each state must be conceded the right to apply its own laws for the reasonable effectuation of its own policies.) (emphasis added).
102
interests, and they should not be put in the position of potentially subordinating the forums
interests. Currie thought that interest-weighing is a political function of a very high order
that should not be committed to courts in a democracy.47
In light of Curries proud adherence to the common law tradition,48 the above explanation is
surprising, in that it assumes a conception of the judicial process that does not reflect the realities
of the American common law tradition, in which judges routinely evaluate and weigh conflicting social policies.49 Curries explanation also contradicts the basic tenets of his theory, which in
all other respects assumes an activist judge. For example, according to Curries own analysis, in
order to determine whether the conflict is false or true, the judge must identify and articulate the
interests of the involved states. The judicial application of this part of Curries analysis suggests
that this task is no less subjective or politically sensitive than the weighing of interests. The two
tasks differ only in degree. If judges are empowered and qualified to articulate a governmental
interest, they can also weigh it. Stated another way, the distance between articulating an interest
and evaluating it is very short, at least when the evaluator is also the articulator.50
In one of his last writings, Currie advised that in some cases the judge should subject the
laws of the involved states to a more moderate and restrained interpretation, which could lead to
the conclusion that one of those states is not as interested as it might appear at first blush. If so,
this would be an apparent conflict, to which the judge should apply the law of the other state.51
Currie contended that this process of re-evaluating the two states interests is qualitatively different from weighing those interests.52 He was not persuasive.53
Finally, under Curries analysis, the law of the forum applies to his third category of conflicts
the unprovided-for or no-interest caseseven though in these cases the forum is, ex hypothesi,
47.Currie, supra note 27, at 182. See also id. (where Currie speaks of the embarrassment of [a court]
having to nullify the interests of its own sovereign); id. at 27879,357.
48. See id. at 627 (I am proud to associate myself with the common law tradition.).
49. As one critic put it, [e]ver since conflicts law first developed, courts did precisely what Currie would
forbid them to do; no judge has ever been impeached for inventing or applying a choice of law rule that sacrifices forum interests. F. Juenger, Choice of Law in Interstate Torts, 118 U. Pa. L.Rev. 200, 20607 (1969).
See also A. Ehrenzweig, A Counter-Revolution in Conflicts Law? 80 Harv. L. Rev. 377, 389 (1966) ([A]
ll courts and writers who have professed acceptance of Curries interest language have transformed it by
indulging in that very weighing and balancing of interest from which Currie refrained.). Curries response
to such observations was sharp and short:I do not care whether courts undertake to weigh and balance
conflicting interests or not, he said, but when they do, such action can find its justification in politics, not
in jurisprudence. Currie, supra note 27, at 600-01. See id. at 183, 274, for a more moderate response.
50. As Cavers put it, in Curries analysis, [w]eighing of interests after interpretation is condemned:weighing of interests in interpretation, condoned, not to say, encouraged. D. Cavers, Contemporary Conflicts
in American Perspective, 131 Recueil des cours 75, 148 (1970).
51.Currie, supra note 43, at 76364.
52. See Currie, supra note 27, at759:
[T]here is an important difference between a courts construing domestic law with moderation in
order to avoid conflict with a foreign interest and its holding that the foreign interest is paramount.
When a court avowedly uses the tools of construction and interpretation, it invites legislative correction of error. . . . When it weighs state interests and finds a foreign interest weightier, it inhibits
legislative intervention and confounds criticism.
53. See M. Traynor, Conflict of Laws: Professor Curries Restrained and Enlightened Forum, 49 Calif.
L.Rev. 845, 855 (1961) (noting that this process involved interest-weighing). See also id. at 853 (noting
that Curries proscription of interest weighing seems to strike at the heart of the judicial process.).
103
a disinterested state. Curries explanation for applying the law of the forum is that no good purpose
will be served by putting the parties to the expense and the court to the trouble of ascertaining the
foreign law.54 This is a practical explanation. Unfortunately, it overlooks the problem grammarians
call prothysteron:one cannot know whether the case is a no-interest case without first knowing
whether the foreign state is uninterested, and one cannot know whether that state is uninterested
without first ascertaining the content of its law and identifying the policies underlyingit.
F. FORUM FAVORITISM
In sum, under Curries analysis, almost all roads lead to the lex fori. Currie would apply foreign
law in only two situations, both of which are rather infrequent:(1)false conflicts in which the
forum is an uninterested state, and (2)apparent conflicts in which the judge chooses to subject
the law of the forum, rather than that of the foreign state, to a restrained interpretation. In all
other cases, Currie would apply the lex fori, towit:
(1) in a false conflict in which the forum is the interestedstate;
(2) in a true conflict in which the forum is one of the interested states;
(3) in the no-interest or unprovided-for case;and
(4) even in a true conflict before a disinterested forum, if the court cannot dismiss on
grounds of forum non conveniens.55
Currie defended his forum favoritism with arguments ranging from the practical to the philosophical.56 Many commentators remained unpersuaded. As one of them noted, Curries analysis,
which compels him to give to the forums law such broad effects, would tend to fasten upon the international and the inter-state communities a legal order characterized by chaos and retaliation.57
G. CURRIES CONTRIBUTION
Currie lived for only 52 short years. But, as one of his contemporaries wrote at the time, [i]n
his curtailed lifetime, Brainerd Curries achievements were of a brilliance and variety sufficient
to have conferred eminence on the lives of several men.58 He transformed through his scholarship the field of conflict of laws.59
54.Currie, supra note 27, at 15256.

55. See id. at 182 (suggesting that a disinterested forum should apply its own law, if it is similar to one of
the competing laws, or if the conflict between those laws is otherwise unavoidable).
56. See, e.g., id. at 89, 9394, 191, 197, 27880, 323, 447, 48990, 592, 627,697.
57. A.von Mehren, Book Review, 17 J. Legal Education 91, 97, n.2 (1964). For similar criticisms, see P.
Hay, Flexibility versus Predictability and Uniformity in Choice of Law, 226 Recueil des cours 281 (1991);
G. Kegel, The Crisis in the Conflict of Laws, 112 Recueil des cours 95, 207 (1964).
58. L. Wallace, in American Assn of Law Schools, Proceedings, Part IReport of Committees 123 (1965),
quoted in E.R. Latty, Brainerd CurrieFive Tributes, 1966:2 Duke L.J. 1, 4 (1966).
59. G.J. Simson, Choice of Law after the Currie Revolution:What Role for the Needs of the Interstate and
International Systems?, 63 Mercer L.Rev. 715, 716 (2012). See also id. (It is no exaggeration to say that
Currie was the most influential conflicts scholar of the last century.).
104
Indeed, Curries theory dominated choice-of-law thinking in the United States for almost
half a century.60 His seductive style of writing hypnotized a generation of American lawyers,61
perhaps in the same way that Beales teachings had indoctrinated the previous generation.62
Curries judicial following has decreased dramatically in recent years. However, his analysis
still controls the academic conflicts agenda,63 perhaps because:(1)it remains the most popular pedagogical vehicle for teaching conflicts law in American law schools,64 and, (2)it is the
very language of contemporary conflicts theory.65
In recent years, Curries critics66 clearly outnumber his defenders,67 old and new.68 Although
there is much to criticize in Curries theory, there is also much that deserves praise. Some of
60.The intense academic interest in Curries theory is illustrated, inter alia, by the many symposia
devoted to interest analysis. See Symposium on Interest Analysis in Conflict of Laws, 46 Ohio St. L.J.
457 (1985); Symposium:New Directions in Choice of Law:Alternatives to Interest Analysis, 24 Cornell
Intl L.J. 195 (1991); Choice of Law:How It Ought to Be, 48 Mercer L.Rev. 623 (1997); Choice-of-Law
Methodology Fifty Years after Currie:Quo Vadis? 2015 U. Ill. L.Rev. 1847 (2015).
61. H. Korn, The Choice-of-Law Revolution:ACritique, 83 Colum. L.Rev. 772, 812 (1983).
62. In the words of one of Curries harshest critics, the single most influential American book on the
conflict of laws published during the twentieth century was not Joseph Beales three-volume treatise
or Ernst Rabels monumental four-volume comparative study, but Curries collection of articles. F.
Juenger, Selected Essays on the Conflict of Laws, viiviii (2001).
63. F.K. Juenger, Conflict of Laws:ACritique of Interest Analysis, 32 Am. J.Comp. L. 1, 4(1984).
64. See C. Peterson, Restating Conflicts Again:ACure for Schizophrenia?, 75 Ind. L.J. 549, 559 (2000)
(concluding that the survival of interest analysis as a dominant aspect of conflicts theory is the result of
the fact that law professors use it to teach the subject of conflict of lawseven if they do not personally
subscribe to its methodology.).
65. L. Weinberg, Theory Wars in the Conflict of Laws, 103 Mich. L.Rev. 1631, 1649 (2005).
66. In addition to works cited elsewhere in this chapter, Curries American critics include:E. Bodenheimer,
The Need for a Reorientation in American Conflicts Law, 29 Hastings L.J. 731 (19771978); P. Borchers,
Conflicts Pragmatism, 56 Alb. L.Rev. 883 (1993); L. Brilmayer, The Role of Substantive and Choice of Law
Policies in the Formation of Choice of Law Rules, 252 Recueil des cours 9 (1995); J. Corr, The Frailty of
Interest Analysis, 11 Geo. Mason L.Rev. 299 (2002); P. Hay, Reflections on Conflict-of-Laws Methodology,
32 Hastings L.J. 1644 (1981); H. Korn, The Choice-of-Law Revolution: A Critique, 83 Colum. L. Rev.
772 (1983); J.P. Kozyris, Interest Analysis Facing Its Critics, 46 Ohio St. L.J. 569 (1985); M. Rosenberg,
Comments on Reich v. Purcell, 15 U.C.L.A. L. Rev. 641 (1968); J. Singer, Real Conflicts, 69 B.U. L. Rev.
1 (1989); D. Trautman, Reflections on Conflict-of-Law Methodology, 32 Hastings L.J. 1609 (1981); A.
Twerski, Neumeier v. Kuehner:Where Are the Emperors Clothes?, 1 Hofstra L.Rev. 104 (1973).
67. See, in particular, H. Kay, Curries Interest Analysis in the 21st Century: Losing the Battle, but
Winning the War, 37 Willamette L. Rev. 123 (2001); H. Kay, A Defense of Curries Governmental
Interest Analysis, 215 Recueil des cours 9 (1989); B. Posnak, Choice of Law: Interest Analysis and Its
New Crits, 36 Am. J. Comp. L. 681 (1988); R. Sedler, Interest Analysis as the Preferred Approach to
Choice of Law:AResponse to Professor Brilmayers Foundational Attack, 46 Ohio St. L.J. 483 (1985);
R. Sedler, Interest Analysis and Forum Preference in the Conflict of Laws: A Response to the New
Critics, 34 Mercer L.Rev. 593 (19821983); R. Sedler, American Federalism, State Sovereignty, and the
Interest Analysis Approach to Choice of Law, in J. Nafziger and S. Symeonides (eds.), Law and Justice in a
Multistate World:Essays in Honor of Arthur T.von Mehren, 369 (2002); L. Weinberg, On Departing from
Forum Law, 35 Mercer L.Rev. 595 (1984); R. Weintraub, Interest Analysis in the Conflict of Laws as an
Application of Sound Legal Reasoning, 35 Mercer L.Rev. 629 (1984).
68. For more recent assessments, see L. Kramer, Interest Analysis and the Presumption of Forum Law, 56
U. Chi. L.Rev. 1301 (1989); K. Roosevelt, Brainerd Curries Contribution to Choice of Law:Looking Back,
Looking Forward, 65 Mercer L.Rev. 501 (2014); Simson, supra note 59. at716.
105
Curries critics have focused more on debunking his theory than on separating its tenable elements from the untenable ones. Even if the latter elements outnumber the former, Curries
overall contribution to the advancement of American conflicts law is a decidedly positive one,
if only because he stirred the stagnant waters of the dismal swamp of American conflictslaw.
In fact, Currie did much more. In particular:
(1) Curries basic premisenamely, that states have an interest in the outcome of multistate disputes between private personsaccurately reflects contemporary realities;
(2) However, Curries articulation of those interests was intentionally provocative and
unintentionally chauvinistic;
(3) Properly conceived, state interest can provide the criteria for classifying conflicts cases
into three analytically helpful categoriesfalse conflicts, true conflicts, and no interest casesand for rationally resolving false conflicts;
(4) It is permissible and feasible to weigh conflicting state interests. Such a weighing, if
carried out impartially, can properly resolve many true conflicts;and
(5) An analysis based on state interests cannot provide good solutions to cases of the no-
interest category. For those cases, it is necessary to resort to other criteria of conflict
resolution, including territorial criteria.69
H. THE ADDENDUM OFCOMPARATIVE IMPAIRMENT

Professor William F. Baxter (19291998) took interest analysis to the next step, or perhaps
in a different direction.70 Baxter agreed with Currie on two points: (1) on the process of
identifying and resolving false conflicts, and (2)on the impropriety of weighing interests as
a means of resolving true conflicts.71 However, Baxter did not accept Curries view that the
application of the lex fori is the only possible solution for true conflicts. Baxter argued that
a normative resolution of real conflicts cases is possible, and that an examination of the
basic premises underlying the federal system would reveal normative principles which could
and should serve as a foundation for choice-of-law rules.72 To this end, Baxter proposed
his comparative impairment formula, which later gained the acceptance of the California
Supreme Court.73
Baxter distinguished between two types of governmental interests or objectivesthe internal and the external. Internal objectives are those underlying each states resolution of conflicting private interests in wholly domestic situations. The external objectives embody each
states goal to make effective in all situations involving persons as to whom it has responsibility
for legal ordering, the resolution of contending private interests the state has made for local
69. For a detailed discussion of these points, see Symeonides, The Choice-of-Law Revolution Fifty Years
after Currie:An End and a Beginning, 2015 U. Ill. L.Rev. 1847__ (2015).
70. See W. Baxter, Choice of Law and the Federal System, 16 Stan. L.Rev. 1 (1963).
71. See id. at 8, 56, 1819. Echoing Currie, Baxter stated that weighing of interests involves super-value
judgments that are incompatible with the judges non-political status.
72. Id. at89.
73. See infra, 16568.
106
purposes.74 In a true conflict, ex hypothesi, this external objective conflicts with the corresponding external objective of a foreign state. Rather than subordinating the external objective of the
foreign state to that of the forum (as Currie would do), Baxter suggests subordinat[ing] the
external objective of the state whose internal objective will be least impaired in general scope
and impact by subordination in cases like the one at hand.75 Put simply, Baxter would apply the
law of that state whose interests would be most impaired if its law were not applied.
In essence, rather than weighing the interests, comparative impairment weighs the loss that
would result from subordinating the interests of one state to those of another state. However,
inasmuch as the gravity of the loss depends on the strength and importance of each states
interest, one cannot avoid the conclusion that comparative impairment does weigh the interests. This statement is not a criticism of comparative impairment. Weighing of state interests
is an appropriate, if not inevitable, means of resolving conflicts in any approach that acknowledges the existence of state interests. The question is not whether courts can or should weigh
state interests, but rather how to weigh them, and how to resolve the resulting conflicts.76
I V. R E S U LT S E L ECT I VI S M :
R O B E RT A . L E F LA R A ND HI S
B E T T E R L AW A PPR OA CH
Despite their criticism of the traditional theory in other respects, Cook, Currie, and to a lesser
extent Cavers, remained within the confines of the classical view of conflicts law in one core
respect:they subscribed to the same basic premise that the goal of conflicts law is to achieve
the spatially best solution77 (conflicts justice), rather than the materially best solution78
(material justice).79
In contrast, Professor Robert A.Leflar (19011997) was among the first proponents of the
material-justice view in the United States.80 In two successive law review articles published
74. Id.at18.
75. Id.
76. For a different perspective on comparative impairment, see W. Allen & E. OHara, Second Generation
Law and Economics of Conflict of Laws:Baxters Comparative Impairment and Beyond, 51 Stan. L.Rev.
1011 (1999).
77.G. Kegel, Paternal Home and Dream Home: Traditional Conflict of Laws and the American
Reformers, 27 Am. J.Comp. L. 615, 61617 (1979).
78. Id.
79.For a discussion of these concepts in American conflicts law, see S. Symeonides, Choice-of-Law
Revolution 40401. For a discussion of the same concepts in international conflicts law, see S.Symeonides,
Codifying Choice of Law 24588.
80. Another prominent proponent of this view was Professor Friedrich K.Juenger (19302001). See F.K.
Juenger, Choice of Law and Multistate Justice 14573, 191208 (1993). In this fascinating book, Juenger
advocated a type of better-law approach, although he prefers to call it the substantive-law approach. By
using the latter terminology, Juenger intended to connect his approach with the most ancient approach to
resolving conflicts problemsthe approach of the Roman praetor peregrinus, who, in resolving disputes
between Roman and non-Roman citizens, constructed ad hoc substantive rules derived from the laws
of the involved countries. Juenger argued that, in todays multistate cases, the court should construct
107
in 1966,81 Leflar proposed a non-hierarchical list of five choice-influencing considerations to

guide courts in resolving conflicts problems. The list consisted of:(1)predictability of results,
(2) maintenance of interstate and international order, (3) simplification of the judicial task,
(4) advancement of the forums governmental interest, and (5) the application of the better
rule of law. Leflar argued that, by using these considerations, courts can replace with statements of real reasons the mechanical rules and circuitously devised approaches which have
appeared in the language of conflicts opinions, too often as cover-ups for the real reason that
underlay the decisions.82
As the above list indicates, there is much more to Leflars approach than the better-law
criterion. In his words, this criterion is only one of five, more important in some types of
cases than in others, almost controlling in some but irrelevant in others.83 Even so, nothing prevents the better-law criterion from becoming decisive in all those cases (and they are
many) in which the other four considerations are not dispositive. This is precisely how courts
employed this criterion (at least in the revolutions early years), while paying lip service to the
other four. Moreover, but for the better-law criterion, Leflars list differs little from the lists
proposed by others,84 or from the list of Section 6 of the Restatement (Second). Consequently,
Leflars approach is deservedly known as the better-law approach, and it may be criticized85
from among the involved states a rule of law that best accords with modern substantive-law trends and
standards. For example, for products liability conflicts, Juenger proposed that from among the laws of the
places of conduct, injury, acquisition of the product, and domicile of the parties, the court should choose
[a]s to each issue that rule of decision which most closely accords with modern standards of products
liability. Id. at 197. For a symposium on Juengers writings, see F. Juenger, Choice of Law and Multistate
Justice (special ed.2005).
81. See R. Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U. L.Rev. 267 (1966); R.
Leflar, Conflicts Law:More on Choice Influencing Considerations, 54 Cal. L.Rev. 1584 (1966) (hereafter
ConflictsLaw).
82. Leflar, Conflicts Law, supra note 81, at 1585. As the word better indicates, Leflar envisioned choosing, between or among the laws of the involved states, the one law that is better. Thus, although unconventional in one sense, Leflars approach is conventional in another senseit is a conflictual or selectivist
approach. See S. Symeonides, American Choice of Law at the Dawn of the 20th Century, 37 Willamette
L.Rev. 1, 4, 1116 (2001). In contrast, Professor Luther McDougal took the material-justice view beyond
the confines of the selectivist method by advocating a search for the best rule of law, which (unlike the
better law) assumes that [c]ourts are not so limited in their choice [and that they] can, and should,
in many cases construct and apply a law specifically created for the resolution of choice of law cases. L.
McDougal, Toward Application of the Best Rule of Law in Choice of Law Cases, 35 Mercer L.Rev. 483,
48384 (1984). McDougal described the best rule of law as the one that best promotes net aggregate
long-term common interests, id. at 484, and he gave two examples of such a rule:(1)for non-economic
losses, he proposed a rule that permits complete recovery of all losses, pecuniary and nonpecuniary,
and of all reasonable costs incurred in obtaining recovery, including reasonable attorneys fees and litigation costs, id. at 533; (2)for claims concerning punitive damages, he proposed a rule that imposes such
damages on individuals who engage in outrageous conduct and who are not adequately punished in the
criminal process.Id.
83. R. Leflar, L. McDougal & R. Felix, American Conflicts Law 300 (4th ed.1986).
84. See, e.g., the list proposed in E. Cheatham & W. Reese, Choice of the Applicable Law, 52 Colum.
L.Rev. 959 (1952).
85. See, e.g., Hay, Borchers & Symeonides, Conflict of Laws 5662; H. Baade, Counter-Revolution or
Alliance for Progress?, 46 Tex. L.Rev. 141, 155ff. (1947); D. Cavers, The Value of Principled Preferences, 49
108
or praised86 on that basis. The main criticisms are that a better-law approach can become a
euphemism for a lex fori approach and that it provides convenient cover for judicial subjectivism. Although Leflar admonished against subjective choices, arguing that judges are capable
of recognizing when foreign law is better than forum law,87 there is considerable evidence to
support the conclusion that these risks are real.88
V. F U N C T I O N A L A NA LY S ES
A. ARTHUR T.VON MEHREN
AND DONALD T.TRAUTMAN
In 1965, Professors Arthur T.von Mehren (19222006) and Donald T.Trautman (19241993)
developed an approach to conflicts, which they called functional analysis.89 The fact that the
authors formulated this approach in the context of a casebook, coupled with the approachs
subtlety and sophistication, impedes any attempt at summarization. It is fair to say, however,
that the first four steps of functional analysis are methodologically, though not philosophically,
similar to interest analysis and its identification of false conflicts and apparent conflicts.
The major differences between the two methods appear in the handling of true conflicts.
Unlike interest analysis, functional analysis openly advocates policy weighing, guided by specific
criteria.90 The first criterion is the relevant strength of the policies of the involved states. In measuring the strength of the respective policies, the court is to consider the conviction with which a state
adheres to a policy, the appropriateness of that states rule for effectuating its underlying policy, and
the relative significance, to the states concerned, of the vindication of their policies. For example,
Tex. L.Rev. 211, 21213, 214, 215 (1971); G. Kegel, Paternal Home and Dream Home:Traditional Conflict
of Laws and the American Reformers, 27 Am. J.Comp. L. 615 (1979); S. Symeonides, Material Justice and
Conflicts Justice in Choice of Law, in International Conflict of Laws for the Third Millennium:Essays in
Honor of Friedrich K.Juenger 125 (P. Borchers & J. Zekoll eds., 2000); A.von Mehren, Recent Trends in
Choice-of-Law Methodology, 60 Cornell L.Rev. 927, 95253 (1975).
86.For praise by academic writers, see Robert A. Leflar Symposium on Conflict of Laws, 52 Ark.
L. Rev. 1 (1999) (containing articles by Watkins, Cox, Felix, McDougal, Simson, Reynolds, Richman,
Weintraub, and Whitten); Symposium:Leflar on Conflicts, 31 S.C. L.Rev. 409 (1980); F. Juenger, Leflars
Contributions to American Conflicts Law, 31 S.C. L.Rev. 413 (1980); J. Singer, Pay No Attention to That
Man behind the Curtain: The Place of Better Law in a Third Restatement of Conflicts, 75 Ind. L.J. 659
(2000); M. Thomson, Method or Madness?:The Leflar Approach to Choice of Law as Practiced in Five
States, 66 Rutgers L. Rev. 81 (2013). Judges generally are more receptive, perhaps understandably, and
some are enthusiastic supporters. For warm praise by Justice Todd, the author of the majority opinion in
Milkovich v.Saari, 203 N.W. 2d 408 (Minn. 1973), see J. Todd, A Judges View, 31 S.C. L.Rev. 435 (1980).
See also R.B. Ginsburg, Tribute to Robert A.Leflar, 50 Ark. L.Rev. 407 (1997).
87. See Leflar, McDougal & Felix, supra note 83, at 29899 (Judges can appreciate the fact that
their forum law in some areas is anachronistic or that the law of another state has these benighted
characteristics.).
89. See A. T.von Mehren & D. T.Trautman, The Law of Multistate Problems, 76, 10205, 10915, 178
210 (1965). See also A. von Mehren, Recent Trends in Choice-of-Law Methodology, 60 Cornell L. Rev.
927 (1975).
90. See von Mehren & Trautman, supra note 89, at 376406.
109
all other factors being equal, the court should prefer an emerging policy, rather than a regressing one, or a policy underlying a specific rule, rather than one underlying a general principle.
The court also should engage in a comparative evaluation of the asserted policies, judging their
strength and merits not only in comparison with the policies of other concerned states, but also in
comparison with the policies of all states sharing the same legal and cultural tradition. For cases
that the court cannot resolve by a rational choice among the various domestic or multistate policies, the court may:(1)select a commonly held multistate policy, (2)construct a new multistate
rule,91 or (3)apply the rule of the state that has the most effective control over the subject matter.
For those cases that remain unresolved after all these steps, functional analysis proposes
certain other guidelines, such as applying the rule that best promotes multistate activity, or
interferes least with the parties intentions.92 Only when all other routes have been explored
and found ineffectual do von Mehren and Trautman admit that the forum may apply its own
law, but on the condition that, all other factors being equal, the forum is also a concerned state.
Aneutral forum, in contrast, should not apply its own law, but it may apply the rule of a concerned state that most closely approximates the forums rule. However, a neutral forum should
take advantage of its impartial position and choose solutions that promote multistate activity
and uniformity of decisions.93
B. RUSSELL WEINTRAUBS
CONSEQUENCES-BASED APPROACH
In his early writings, Professor Russell J. Weintraub (19292012) developed a functional
approach that also advocated a weighing of interests, but which identified the relevant criteria
with more specificity.94 Weintraub also took the next step of distilling these criteria into two
91. See A.von Mehren, Special Substantive Rules for Multistate Problems:Their Role and Significance in
Contemporary Choice of Law Methodology, 88 Harv. L.Rev. 347 (1974).
92. von Mehren & Trautman, supra note 89, at 40608.
93.In 1974, Professor von Mehren suggested that certain true conflicts can be resolved expediently
through a compromise of the conflicting state policies, rather than by fully vindicating the policies of the
one state and completely subordinating those of the other state. This compromise would take the form
of a special substantive rule, constructed ad hoc, for the case at hand and derived from the laws of both,
or all involved states. For example, a court could resolve a true conflict between one states strict-liability
law and another states non-liability law through a new substantive rule that would allow the recovery
of only half of plaintiff s actual damages. See A. von Mehren, Special Substantive Rules for Multistate
Problems: Their Role and Significance in Contemporary Choice of Law Methodology, 88 Harv. L. Rev.
298, 36769 (1974). The above suggestions resemble the substantive-law method of the Roman praetor
peregrinus. Today, they may sound anomalous, perhaps because in the meantime, as Trautman suggests,
[w]e have become so accustomed by tradition and theory to ideas of conflict, choice and selection.
D. Trautman, The Relation between American Choice of Law and Federal Common Law, 41 Law &
Contemp. Prob. 105, 118 (1977). Yet, it may be worth asking whether it is a good idea, in a discipline
devoted to resolving conflicts, to reject a priori the notion of a compromise, of seeking a middle ground.
94. These writings, which began in the 1970s, were summarized in R. Weintraub, Commentary on the
Conflict of Laws 284 et seq. (3d ed. 1986). For torts cases, Weintraubs criteria included:(1)the advancement of clearly discernible trends in the law, such as the trend in tort law toward distribution of loss
through liability insurance; (2)the prevention of unfair surprise to the defendant, a factor weakened by
the presence of insurance; (3)the suppression of anachronistic or aberrational laws; and, (4)consultation
110
result-oriented rulesa plaintiff-favoring rule for non-false tort conflicts,95 and a rule of validation for contract conflicts.96
In the 2001 edition of his Commentary, Weintraub conceded that his earlier proposed tort
rule was really an attempt at better law analysis,97 which was necessary at a time when tort
laws were drastically different from state to state, with some states holding on to anachronistic
anti-recovery rules. The fact that, in the interim, many states had abandoned those rules caused
Weintraub to abandon his plaintiff-favoring rule. Instead, he proposed a new consequences-
based approach,98 which chooses law with knowledge of the content of the laws of each of the
[involved] states [and] seeks to minimize the consequences that any such state is likely to
experience if its law is not applied.99 According to this approach, the court should:(1)identify
the policies underlying the conflicting laws of the involved states, (2)determine whether the
non-application of a states law would cause that state to experience consequences that it is its
policy to avoid,100 and, (3) ensure that application of the law of a state that will experience
consequences [is] fair to the parties in the light of their contacts with that state.101
Weintraub apparently believed that this approach was different from comparative impairment,102 but he noted that it was similar to the [t]he Louisiana Conflicts Code, which had been
enacted in the meantime, and which he characterized as an attempt to codify a consequences-
based approach.103 He acknowledged that his approach might not provide an answer for cases
that present either the true-conflict or the no-interest paradigms,104 and he suggested that
courts need default rules.105 Among the default rules, or rather approaches, he proposed were
comparative impairment and the better-law criterion. However, Weintraub emphasized that
the better-law criterion should be used only in non-false conflicts, and that the better law
should be selected by an objective determination that the disfavored law is anachronistic or
aberrational.106
of the conflicts rules of the other interested states in order to determine whether such states have, through
functional analysis, declared their policies with regard to similarcases.
95. See id. at 360 (proposing that true conflicts and no interest cases be resolved by applying the law
that favors the plaintiff, unless that law is anachronistic or aberrational, or the state with that law does
not have sufficient contact with the defendant or the defendants actual or intended course of conduct to
make application of its law reasonable).
96. See id. at 39798.
97. R. Weintraub, Commentary on the Conflict of Laws 356 (4th ed.2001).
98. See id. at 347 et.seq.
99. Id. at347.
100. Id. at350.
101. Id.
102.See id. at 355, where Weintraub states that a rule of comparative impairment can serve as a default
rule for those non-false conflicts that his approach does not resolve.
103. Id.
104. Weintraub questioned the no interest or unprovided for labels, and he suggested that many of
these conflicts can be resolved by re-examin[ing] the tentative conclusion that neither state has a policy
that it will advance by applying its law. Id. at407.
105. Id. at355.
106. Id. at417.
111
V I . S Y N T H E S I S A N D T R A NS I T I ON: WI L L I S
RE E S E A N D T H E R E S TAT EM ENT (S ECOND)
In 1952, the American Law Institute (ALI) began drafting the Restatement (Second), partly in
response to the increasing dissatisfaction with the First Restatement and the mounting criticism against it. The task of Reporter was assigned to Professor Willis L.M. Reese (19131990),
a brilliant and open-minded professor at Columbia Law School, who was a member of the new
school of conflicts thought, although not of its revolutionary branch. Reese agreed with many
of the criticisms leveled against the First Restatement, but more important, he was receptive to
the criticisms of his own drafts of the Restatement (Second). Acursory glance at the successive
versions of what eventually became Section 6 of the Restatement (Second) reveals an evolution
in the Reporters own thinking, as well as the gradual gains of the new school over the old. The
final version of the Restatement (Second), promulgated in 1969, did not join the revolution,
but was a conscious compromise and synthesis between the old and new schools (and among
the various branches of the new schools).
A.SECTIONSIX
The Restatement (Second) consists of 423 black-letter sections, accompanied by explanatory comments, illustrations, and Reporters notes, and arranged in 14 chapters covering all parts of conflicts lawjurisdiction, choice of law, and recognition of judgments. However, as with the First
Restatement, the most consequential part of the Restatement (Second) is the part on choice oflaw.
The cornerstone of the Restatement (Second) is Section 6.It is a paradigmatic example of
an approachnamely, a list of factors that a court should consider in choosing the applicable
law, as opposed to a rule that preselects that law. Section 6 instructs the court to consider the
following factors in searching for the applicablelaw:
(a) the needs of the interstate and international systems; (b) the relevant policies of the forum;
(c) the relevant policies of other interested states and their interests in applying their law to the
particular issue; (d) the protection of justified party expectations; (e) the basic policies underlying
the particular field of law; (f) the objectives of certainty, predictability, and uniformity of result;
and (g) the ease in determining and applying the governing law.107
From a philosophical perspective, Section 6 is important, in that it enunciates the

Restatements ideology, distinguishing it from other modern theories, such as those of Leflar
or Currie. For example, the better-law criterion is noticeably absent from the factors listed
in Section 6. Likewise, the list of factors in Section 6 is broader and qualitatively different
from the policies relied upon by Currie, whose analysis disregards, de-emphasizes, or expressly
rejects most of the Section 6 factors, except the policies of the forum and other involved states.
The contrast between Curries interest analysis and the Restatement (Second) is most apparent in the varying degrees of sensitivity toward the needs of the interstate and international
107. Restatement (Second) 6(2).
112
systems and the need for uniformity of result. To Curries ethnocentric attitude toward both
of these goals, the Restatement juxtaposes a universalistic conception of private international
law reflected in the statement that the most important function of choice-of-law rules is to
make the interstate and international systems work well[,] to further harmonious relations
between states and to facilitate commercial intercourse between them.108 The contrast is hardly
surprising. Unlike interest analysiswhich Currie conceived from the perspective of the forum
judge confined to the role of the handmaiden of the forum legislaturethe Restatement
was drafted from the perspective of a neutral forum under the auspices of the American Law
Institute, a body that strives for national uniformity.
From a methodological viewpoint, Section 6 is important, in that it provides a guiding, as
well as a validating, test for applying almost all other sections of the Restatement, most of which
incorporate Section 6 by reference.109 Because the Section 6 factors are not listed in a hierarchical
order, and often point in different directions,110 they do not provide an actual choice-of-law for
the court. Nevertheless, they can help steer the court away from a jurisdiction-selecting choice
based solely on factual contacts. Although the specific sections of the Restatement call for the
application of the law of the state with the most significant relationshipa term that evokes
jurisdiction-selecting notionsthe choice of that state is to be made under the principles
stated in 6,111 and by taking into account the contacts listed in the specific sections. By constantly repeating this cross-reference to Section 6, the Restatement supplements the multilateral
approach used in most other Restatement sections with elements from a unilateral approach.
B. THE MOST SIGNIFICANT RELATIONSHIP

The most-
significant-
relationship formula is the other cornerstone of the Restatement
(Second). While Section 6 articulates the principles and policies that should guide the choice-
of-law process, the ubiquitous most-significant-relationship formula describes the objective of
that processto apply the law of the state that, with regard to the particular issue, has the most
significant relationship to the parties and the dispute.
This catchphrase resembles both Savignys seat of a legal relationship, and more recent
European catchphrases, such as the state with the closest or strongest connection.112
However, the similarities are only terminological. The Restatement is built around narrowly
defined issues, rather than entire legal relationships, and it requires an individualized issue-
by-issue analysis with the concomitant, un-Savignian possibility of dpeage.113 Furthermore, as
noted above, the Restatements approach is a blend of multilateralism and unilateralism.
108. Restatement (Second) 6, cmt.d.
109. See, e.g., id. at 145 (providing that a tort issue is governed by the law of the state that, with respect
to that issue, has the most significant relationship to the occurrence and the parties under the principles
stated in 6.).
110. Id. at 6, cmt.(c).
111. Id. at145.
112. See S.Symeonides, Codifying Choice of Law 17688.
113. For the role of dpeage in foreign codifications, see id. at 22444. For its role in American conflicts
law, see S. Symeonides, Issue-by-Issue Analysis and Dpeage in Choice of Law:Cause and Effect, 45 U.
Tol. L.Rev. 751 (2014).
113
Finally, although acoustically the Restatements catchphrase may suggest otherwise, the
state with the most significant relationship is not to be chosen by the quantity or even the
closeness of its factual contacts, but rather under the principles stated in 6, which include
consideration of the policies and interests of the contact-states. Herein lies an essential difference between the Restatement and one of its precursor movementsthe center of gravity or
significant-contacts approach.114
C.RULES
In relatively few cases, primarily in the areas of property and successions, the Restatement
identifies a priori through black-letter rules the state with the most significant relationship.115 In cases involving land and other immovables, the applicable law is almost invariably the law that would be applied by the courts of the situs.116 This is as close as the
Restatement comes to prescribing black-letter choice-of-law rules. These rules are subject to the traditional, generic escape mechanisms, such as ordre public and renvoi. For
example, the above-quoted phrase regarding land is an explicit authorization for renvoi,
which contains the potential for applying, in appropriate cases, a law other than that of the
situsstate.
D.PRESUMPTIVERULES
In other cases, the Restatement identifies the state with the most significant relationship
only tentatively, through presumptive rules that instruct the judge to apply the law of a certain state, unless it appears that, in the particular case, another state has a more significant
relationship. For example, all 10 of the Restatement sections that designate the law applicable to different types of torts conclude with the escape clause:unless, with respect to the
particular issue, some other state has a more significant relationship under the principles
stated in 6 to the occurrence and the parties, in which event the local law of the other
state will be applied.117 This clause is repeated throughout the entire Restatement.118
114. See infra 15455.

115. See Restatement (Second) 260265 (succession to movables); 245255 (inter vivos transactions
involving movables). See also the unilateral choice-of-law rules contained in 285 (divorce), 286 (nullity
of marriage), and 289 (adoption).
116. See id. 223, 225232 (inter vivos transactions involving land); 236, 239242 (succession to
land). This phrase is often accompanied by the prediction that these courts usually will apply their
ownlaw.
117. See, e.g., id. 152, which provides that, in an action for an invasion of privacy, the applicable law is
the local law of the state where the invasion occurred, unless, with respect to the particular issue, some
other state has a more significant relationship.
118. See, e.g., id. 146151, 153155, and 175. In the area of contract conflicts, the unless clause
appears in most of the sections devoted to particular contracts. See, e.g., 189193,196.
114
E.POINTERS
In some instances, the presumptive rules are even more equivocal, and amount to no more
than mere pointers, directing to the presumptively applicable law. The pertinent sections provide that the state with the most significant relationship will usually be one particular state.
For example, in tort conflicts, 11 of the 19 sections devoted to specific tort issues conclude
with the adage that the applicable law will usually be the local law of the state where the injury
occurred;119 one section provides that for intra-family immunity the applicable law will usually be the local law of the state of the parties domicil;120 and only the remaining seven sections are unaided by such a presumption.121
In contract conflicts, the Restatement provides that, subject to some exceptions, if the
place of negotiating the contract and the place of performance are in the same state, its local
law will usually be applied,122 that a persons capacity to contract will usually be upheld if he
has such capacity under the local law of the state of his domicil,123 and that contractual formalities that meet the requirements of the locus contractus will usually be acceptable.124 Other
sections of the Restatement contain similarly equivocal language.
F. AD HOC ANALYSIS
In the remaining and most difficult cases, the Restatement (Second) does not even attempt
to enunciate presumptive rules. It simply provides a nonexclusive, non-hierarchical list of the
factual contacts or connecting factors that the court should take[] into account in choosing
the applicable law. This choice is to be made under the principles stated in 6 by taking
into account the above factual contacts according to their relative importance with respect to
the particular issue.125 This language suggests that the policy part of this analysis should carry
more weight than the evaluation of the factual contacts.
Yet, courts tend to do the opposite.126 They first focus on the factual contacts listed in the
pertinent section of the Restatement, and then on the policies of Section 6, if at all. When the
contacts of one state are clearly more numerous than those of another state, some courts tend
to assume that the first state has the more significant relationship, without testing that assumption under the principles of Section 6.In contrast, when the factual contacts are split evenly
between the two states, courts look to the policies of Section 6, but many courts consider only
two of the policies listed in that sectionthe relative policies of the forum and of other
119. See id. 156 (tortious character of conduct); 157 (standard of care); 158 (interest entitled to
legal protection); 159 (duty owed to plaintiff); 160 (legal cause); 162 (specific conditions of liability);
164 (contributory fault); 165 (assumption of risk); 166 (imputed negligence); and 172 (joint torts).
120. Id.169.
121. Id. 161, 163, 168, 170171, and 173174.
122. Id.188.
123. Id.198.
124. Id.199.
125. See, e.g., id. 145,188.
126. See S. Symeonides, The Judicial Acceptance of the Second Conflicts Restatement:AMixed Blessing,
56 Md. L.Rev. 1248, 1263 (1997).
115
interested states.127 It seems then that the former type of practice differs little from the grouping of contacts approach, whereas the latter type of practice differs little from interest analysis.
V I I . C O N TEM POR A RY
C O N F L I C T S S CHOL A R S HI P
This chapter has discussed the writings of the 10 authors who participated in the scholastic
choice-of-law revolution, which in turn guided the judicial revolution. Given the chronology
of this revolution, it is no coincidence that all of these authors are deceased. Due to lack of space,
this book does not discuss the contribution of the next generation of scholars. Nevertheless,
the reader should not be left with the impression that American conflicts scholarship came
to a halt with the end of the scholastic revolution. Quite the contrary. Since the revolution, a
new generation of creative and productive scholars became of age. Some of these scholars criticized the revolution, others defended it, and others formed new movements, such as the law
and economics movement.128 An illustrative list, limited only to choice of law, would include
the following scholars, in alphabetical order: Paul Berman,129 Patrick Borchers,130

128. For representative writings from the law and economics scholarship, see E. OHara & L. Ribstein,
The Law Market (2009); E. OHara (ed.), Economics of Conflict of Laws (2007); J. Goldsmith & A. Sykes,
Lex Loci Delictus and Global Economic Welfare:Spinozzi v.ITT Sheraton Corp., 120 Harv. L.Rev. 1137
(2007); R. Michaels, Economics of Law as Choice of Law, 71 Law & Contemp. Probs. 73 (2008); E. OHara
& L. Ribstein, Rules and Institutions in Developing a Law Market: Views from the United States and
Europe, 82 Tul. L. Rev. 2147 (2008); E. OHara & L. Ribstein, From Politics to Efficiency in Choice of
Law, 67 U. Chi. L.Rev. 1151 (2000); E. OHara, Opting Out of Regulation:APublic Choice Analysis of
Contractual Choice of Law, 53 Vand. L.Rev. 1551 (2000); E. OHara, Economics, Public Choice, and the
Perennial Conflict of Laws, 90 Geo. L.J. 941 (2002); L. Ribstein, From Efficiency to Politics in Contractual
Choice of Law, 37 Ga. L.Rev. 363 (2003); A. Guzman, Choice of Law:New Foundations, 90 Geo. L.J. 883
(2002); G. Rhl, Methods and Approaches in Choice of Law:An Economic Perspective, 24 Berkeley J.Intl
L. 801 (2006); M. Solimine, An Economic and Empirical Analysis of Choice of Law, 24 Georgia L.Rev. 49
(1989); P. Stephan, The Political Economics of Choice of Law, 90 Geo. L.J. 957 (2002).
129. See P.S. Berman, Global Legal Pluralism:AJurisprudence of Law beyond Borders (2014); P.S. Berman,
Towards a Cosmopolitan Vision of Conflict of Laws: Redefining Governmental Interests in a Global
Era, 153 U. Pa. L. Rev. 1819 (2005); P.S. Berman, Conflict of Laws, Globalization, and Cosmopolitan
Pluralism, 51 Wayne L.Rev. 1105 (2005); P.S. Berman, From International Law to Law and Globalization,
43 Colum. J.Transnatl L. 485 (2005); P.S. Berman, Global Legal Pluralism, 80 S. Cal. L.Rev. 1155 (2007).
130. See P. Borchers, Conflicts in a Nutshell (4th ed. 2015); P. Borchers, Conflicts Pragmatism, 56 Alb.
L. Rev. 883 (1993); P. Borchers, Choice of Law in the American Courts in 1992: Observations and
Reflections, 42 Am. J.Comp. L. 125 (1994); P. Borchers, Back to the Past:Anti-pragmatism in American
Conflicts Law, 48 Mercer L. Rev. 721 (1997); P. Borchers, Empiricism and Theory in Conflicts Law, 75
Ind. L.J. 509 (2000); P. Borchers, Losing the Battle but Winning the World:Juengers Critique of Interest
Analysis, in F.K. Juenger, Choice of Law and Multistate Justice lix (special ed. 2005); P. Borchers, Flexibility
and Predictability:The Emergence of Near-Universal Choice of Law Principles, in Festschrift Peter Hay 49
(2005); P. Borchers, Categorical Exceptions to Party Autonomy in Private International Law, 82 Tul. L.Rev.
1645 (2008); P. Borchers, Punitive Damages, Forum Shopping, and the Conflict of Laws, 70 La. L.Rev.529
(2010). P. Borchers, The Emergence of Quasi Rules in U.S. Conflicts Law, 12 Ybk. Priv. Intl L. 93 (2010);
P. Borchers, Conflict-of-Laws Considerations in State Court Human Rights Actions, 3 U.C. Irvine L.Rev.
45 (2013).
116
Lea Brilmayer,131 Hanna Buxbaum,132 Donald Childress,133 Anthony Colangelo,134 Stanley

Cox,135 Perry Dane,136 Peter Hay,137 Alfred Hill,138 Herma Hill Kay,139 Harold Korn,140
131. See L. Brilmayer, The Role of Substantive and Choice of Law Policies in the Formation and
Application of Choice of Law Rules, 252 Recueil des cours 9 (1995); L. Brilmayer, Hard Cases, Single
Factor Theories, and a Second Look at the Restatement 2d of Conflicts, 2015 U. Ill. L. Rev. 1969
(2015); L. Brilmayer, The Other States Interests, 24 Cornell Intl L.J. 233 (1991); L. Brilmayer, Rights,
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134. See A. Colangelo, The Legal Limits of Universal Jurisdiction, 47 Va. J.Intl L. 149 (2006); A. Colangelo,
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135. See S. Cox, Substantive Multilateral, and Unilateral Choice of Law Approaches, 37 Willamette L.Rev.
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137. See P. Hay, Selected Essays on Comparative Law and Conflict of Laws (2015); P. Hay, Flexibility versus Predictability and Uniformity in Choice of Law:Reflections on Current European and United States
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117
Phaedon Kozyris,141 Larry Kramer,142 Laura Little,143 Luther McDougal,144 Ralf Michaels,145
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138. See A. Hill, For a Third Conflicts RestatementBut Stop Trying to Reinvent the Wheel, 75 Ind. L.J.
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139. See H.H. Kay, Curries Interest Analysis in the 21st Century:Losing the Battle, But Winning the War,
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142. See L. Kramer, Choice of Law in Complex Litigation, 71 N.Y.U. L.Rev. 547 (1996); L. Kramer, On
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144. See L. McDougal, Leflars Choice-Influencing Considerations:Revisited, Refined and Reaffirmed, 52
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38 Am. J.Comp. L. 521 (1990); L. McDougal, Toward Application of the Best Rule of Law in Choice of Law
Cases, 35 Mercer L.Rev. 483 (1984); L. McDougal, Comprehensive Interest Analysis versus Reformulated
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Choice of Law-Trans-state Laws:The Need Demonstrated in Theory and in the Context of Motor Vehicle
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145. See R. Michaels, The Re-state-ment of Non-state Law:The State, Choice of Law, and the Challenge
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James Nafziger,146 Courtland Peterson,147 Bruce Posnak,148 Mathias Reimann,149 William Reppy,150
Revolution, 82 Tul. L. Rev. 1607 (2008); R. Michaels, Public and Private International Law: German
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71.3 L. & Contemp. Probs. 73 (2008); R. Michaels, Public and Private Law in the Global Adjudication
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146. See J. Nafziger, Oregons Conflicts Law Applicable to Contracts, 38 Willamette L.Rev. 397 (2002); J.
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Choices of Law Together, 37 Willamette L.Rev. 209 (2000); J. Nafziger, Oregons Project to Codify Choice-
of-Law Rules, 60 La. L. Rev. 1189 (2000); J. Nafziger, Choice of Law in Air Disaster Cases: Complex
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147. See C. Peterson, Restating Conflicts Again:ACure for Schizophrenia?, 75 Ind. L.J. 549 (2000); C.
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430 (2000); C. Peterson, New Openness to Statutory Choice of Law Solutions, 38 Am. J. Comp. L. 423
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148. See B. Posnak, The Restatement (Second):Some Not So Fine Tuning for a Restatement (Third):AVery
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Choice of LawInterest Analysis: They Still Dont Get It, 40 Wayne L. Rev. 1121 (1994); B. Posnak,
Choice of Law:Interest Analysis and Its New Crits, 36 Am. J.Comp. L. 681 (1988); B. Posnak, Choice of
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149. See M. Reimann, Liability for Defective Products and Services: Emergence of a Worldwide
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1363 (2006); M. Reimann, Savignys Triumph: Choice of Law in Contracts Cases at the Close of the
Twentieth Century, 39 Va. J.Intl L. 571 (1999); M. Reimann, Parochialism in American Conflicts Law,
49 Am. J.Comp. L., 369 (2001); M. Reimann, Codifying Torts Conflicts:The 1999 German Legislation
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International Age, 75 Ind. L.J. 575 (2000); M. Reimann, Remarks by an Embarrassed but Unrepentant
Multilateralist, in Juenger Special Ed., lxv (2005); M. Reimann, Review of Symeon C. Symeonides
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150. See W. Reppy, Codifying Interest Analysis in the Torts Chapter of a New Conflicts Restatement,
75 Ind. L.J. 591 (2000); W. Reppy, Eclecticism in Choice of Law: Hybrid Method or Mishmash?, 34
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William Reynolds,151 William Richman,152 Anelise Riles,153 Kermit Roosevelt,154 Robert Sedler,155
151. See W. Reynolds, Legal Process and Choice of Law, 56 Md. L.Rev. 1371 (1997); W. Reynolds, Robert
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152. See W. Richman & W. Reynolds, Prologomenon to an Empirical Restatement of Conflicts, 75 Ind.
L.J. 417 (2000); W. Richman & D. Riley, The First Restatement of Conflict of Laws on the Twenty-Fifth
Anniversary of Its Successor:Contemporary Practice in Traditional Courts, 56 Md. L Rev. 1196 (1997); W.
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Post-tort Reform Era:Reviewing Symeon C.Symeonides, The American Choice-of-Law Revolution:Past,
Present and Future (2006), 82 Tul. L.Rev. 2181 (2008).
153. See A. Riles, A New Agenda for the Cultural Study of Law: Taking on the Technicalities, 53 Buff.
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154. See K. Roosevelt, Conflict of Laws (2d ed. 2010); K. Roosevelt, Guantanamo and the Conflict
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155. See R. Sedler, American Federalism, State Sovereignty, and the Interest Analysis Approach to
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Honor of Arthur T. von Mehren 369 (2002); R. Sedler, The Louisiana Codification and Tort Rules of
Choice of Law, 60 La. L.Rev. 1331 (2000); R. Sedler, Choice of Law in Conflicts Torts Cases:AThird
Restatement or Rules of Choice of Law?, 75 Ind. L.J. 615 (2000); R. Sedler, A Real World Perspective on
Choice of Law, 48 Mercer L.Rev. 781 (1997); R. Sedler, The Complex Litigation Projects Proposal for
Federally-Mandated Choice of Law in Mass Torts Cases:Another Assault on State Sovereignty, 54 La.
L.Rev. 1085 (1994); R. Sedler, Interest Analysis, Party Expectations and Judicial Method in Conflicts
Torts Cases:Reflections on Cooney v.Osgood Machinery, Inc., 59 Brook. L.Rev. 1323 (1994); R. Sedler,
Interest Analysis, State Sovereignty, and Federally-Mandated Choice of Law in Mass Tort Cases, 56
Alb. L.Rev. 855 (1993); R. Sedler, Continuity, Precedent, and Choice of Law:AReflective Response to
Professor Hill, 38 Wayne L.Rev. 1419 (1992); R. Sedler, Professor Juengers Challenge to the Interest
Analysis Approach to Choice-of-Law: An Appreciation and a Response, 23 U.C. Davis L. Rev. 865
(1990); R. Sedler, Interest Analysis as the Preferred Approach to Choice of Law: A Response to
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807 (1979); R. Sedler, Interstate Accidents and the Unprovided-for Case: Reflections on Neumeier
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120
Gene Shreve,156 Linda Silberman,157 Gary Simson,158 Joseph Singer,159 Aaron Twerski,160 Lynn
156. See G. Shreve, Conflicts Altruism, in J. Nafziger & S. Symeonides (eds.), Law and Justice in a
Multistate World:Essays in Honor of Arthur T.von Mehren 383 (2002); G. Shreve, Every Conflicts Decision
Is a Promise Broken, 60 La. L.Rev. 1345 (2000); G. Shreve, Notes from the Eye of the Storm, 48 Mercer
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157. See L. Silberman, Same-Sex Marriage:Refining the Conflict of Laws Analysis, 153 U. Pa. L.Rev. 2195
(2005); L. Silberman, Transnational Litigation:Is There a Field? ATribute to Hal Maier, 39 Vand. J.Transnatl
L. 1427 (2006); L. Silberman, Rethinking Rules of Conflict of Laws in Marriage and Divorce in the United
States:What Can We Learn from Europe? 82 Tul. L.Rev. 1999 (2008); L. Silberman, The Role of Choice
of Law in National Class Actions, 156 U. Pa. L.Rev. 2001 (2008); L. Silberman, Choice of Law in National
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Convention on the Civil Aspects of International Child AbductionCustody RightsNe Exeat Rights,
105 Am. J.Intl L. 108 (2011); L. Silberman, Morrison v.National Australia Bank:Implications for Global
Securities Class Actions, 12 Ybk. Priv. Intl L. 123 (2010); L. Silberman, Daimler AG v.Bauman:ANew Era
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158. See G. Simson, The Choice-of-Law Revolution in the United States:Notes on Rereading von Mehren,
36 Cornell Intl L.J. 125 (2003); G. Simson, State Interests, State Autonomy, and the Quest for Uniformity
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Neumeier-Schultz Rules:How Logical a Next State in the Evolution of the Law after Babcock?, 56 Alb.
L.Rev. 913 (1993); G. Simson, Plotting the Next Revolution in Choice of Law:AProposed Approach, 24
Cornell Intl L.J. 279 (1991); G. Simson, Beyond Interstate Recognition in the Same-Sex Marriage Debate,
40 U.C. Davis L.Rev. 313 (2006); G. Simson, Religion, Same-Sex Marriage, and the Defense of Marriage
Act, 41 Cal. W.Intl L.J. 35 (2010); G. Simson, Choice of Law after the Currie Revolution:What Role for
the Needs of the Interstate and International Systems?, 63 Mercer L.Rev. 715 (2012).
159. See Singer, supra note 86; J. Singer, Justice and the Conflict of Laws, 48 Mercer L.Rev. 831 (1997); J.
Singer, A Pragmatic Guide to Conflicts, 70 B.U. L.Rev. 731 (1990); J. Singer, Facing Real Conflicts, 24 Cornell
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160. See A. Twerski, One Size Does Not Fit All:The Third Multi-track Restatement of Conflict of Laws,
75 Ind. L.J. 667 (2000); A. Twerski, A Sheep in Wolf s Clothing: Territorialism in the Guise of Interest
Analysis in Cooney v. Osgood Machinery, Inc., 59 Brook. L.Rev. 1351 (1994); A. Twerski, With Liberty and
Justice for All:An Essay on Agent Orange and Choice of Law, 52 Brook. L.Rev. 341 (1986); A. Twerski,
Neumeier v. Kuehner: Where Are the Emperors Clothes?, 1 Hofstra L. Rev. 104 (1973); A. Twerski,
Enlightened Territorialism and Prof. Cavers: The Pennsylvania Method, 9 Duq. L. Rev. 373 (1971);
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161. See L. Wardle, Non-recognition of Same-Sex Marriage Judgments under DOMA and the Constitution,
38 Creighton L. Rev. 365 (2005); L. Wardle, A Critical Analysis of Interstate Recognition of Lesbigay
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1855 (2008); L. Wardle, Section Three of the Defense of Marriage Act: Deciding, Democracy, and the
Constitution, 58 Drake L.Rev. 951 (2010); L. Wardle, Marriage and Religious Liberty:Comparative Law
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Federal Architecture of DOMA and Comparative Marriage Recognition, 41 Cal. W.Intl L.J. 143 (2010);
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121
Wardle,161 Louise Weinberg,162 Ralph Whitten,163 and Christopher Whytock.164 Interested

readers will learn a great deal from the writings of these scholars cited in the footnotes, as
has this author.
162. See L. Weinberg, What We Dont Talk About When We Talk About Extraterritoriality:Kiobel and
the Conflict of Laws, 99 Cornell L.Rev. 1471 (2014); L. Weinberg, A General Theory of Governance:Due
Process and Lawmaking Power, 54 Wm. & Mary L.Rev. 1057 (2013); L. Weinberg, Theory Wars in the
Conflict of Laws [review of Symeonides, The American Choice-of-Law Revolution in the Courts: Today
and Tomorrow], 103 Mich. L.Rev. 1631 (2005); L. Weinberg, Of Theory and Theodicy:The Problem of
Immoral Law, in J. Nafziger & S. Symeonides (eds.), Law and Justice in a Multistate World:Essays in Honor
of Arthur T. von Mehren 473 (2002); L. Weinberg, A Structural Revision of the Conflicts Restatement,
75 Ind. L.J. 475 (2000); L. Weinberg, Choosing Law and Giving Justice, 60 La. L. Rev. 1361 (2000); L.
Weinberg, Mass Torts at the Neutral Forum:ACritical Analysis of the ALIs Proposed Choice Rule, 56
Alb. L. Rev. 807 (1993); L. Weinberg, Choosing Law: The Limitations Debate, 1991 U. Ill. L. Rev. 683
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Weinberg, Choice of Law and Minimal Scrutiny, 49 U. Chi. L. Rev. 440 (1982); L. Weinberg, Conflicts
Cases and the Problem of Relevant Time:AResponse to the Hague Symposium, 10 Hofstra L.Rev. 1023
(1981); L.Weinberg, A Radically Transformed Restatement for Conflicts, 2015 U. Ill. L.Rev. 1999 (2015).
163. See R. Whitten, Curing the Deficiencies of the Conflicts Revolution: A Proposal for National
Legislation on Choice of Law, Jurisdiction, and Judgments, 37 Willamette L.Rev. 259 (2000); R. Whitten,
Improving the Better Law System:Some Impudent Suggestions for Reordering and Reformulating Leflars
Choice-Influencing Considerations, 52 Ark. L. Rev. 177 (1999); R. Whitten, Full Faith and Credit for
Dummies, 38 Creighton L.Rev. 465 (2005).
164. See C. Whytock, Domestic Courts and Global Governance, 84 Tul. L.Rev. 67 (2009); C. Whytock,
Myth of Mess? International Choice of Law in Action, 84 N.Y.U. L. Rev. 719 (2009); C. Whytock, The
Evolving Forum Shopping System, 96 Cornell L. Rev. 481 (2011); C. Whytock Transnational Judicial
Governance, 2 St. Johns J. Intl & Comp. L. 55 (2012); C. Whytock, Litigation, Arbitration, and the
Transnational Shadow of the Law, 18 Duke J.Comp. & Intl L. 449 (2008).
six
The Judicial Revolution

inTorts and Contracts
The scholastic dissent from the established conflicts system described in the previous chapter is
interesting, but it would have been inconsequential had it not been followed by a similar dissent
in the judicial ranks. Indeed, inspired in part by these academic commentators, many judges
gradually questioned the premises of the established system and began openly to depart from it.
This was the beginning of the American choice-of-law revolution.1 It is illustrated by the initially
gradual, and later not so gradual, erosion of two typical and important traditional choice-of-law
rulesthe lex loci delicti and the lex loci contractus.2 This chapter chronicles this movement.
I I . T H E R E T R EAT OF T HE LEX
L O C I D E LI CTI R UL E
Although revolutions often appear to erupt overnight, discerning eyes can see the harbingers long
before the actual eruption. The same was true of the choice-of-law revolution. Conflicts casebooks are replete with cases in which courts created exceptions to, or openly manipulated, the lex
loci delicti rule.3 Many of these cases spoke in language that was indicative of later developments.
As noted in Chapter 4,4 Levy v. Daniels U-Drive Auto Renting Co., and Haumschild
v. Continental Casualty Co. are correctly cited as examples of manipulative characterization,
1.For a full discussion and documentation of this movement, see S. Symeonides, Choice-of-Law
Revolution, passim.
2. Most other traditional choice-of-law rules have survived the revolution virtually unscathed.
3. See, e.g., L. Brilmayer, J. Goldsmith & E. OHara OConnor, Conflict of Laws: Cases and Materials,
11166 (7th ed. 2015); D. Currie, H. Kay, L. Kramer & K. Roosevelt, Conflict of Laws:Cases-Comments-
Questions 3984 (8th ed. 2010); P. Hay, R. Weintraub & P. Borchers, Conflict of Laws:Cases and Materials
50722 (13th ed. 2009); G. Simson, Issues and Perspectives in Conflict of Laws 5492 (5th ed. 2015); S.
Symeonides & W. Perdue, Conflict of Laws:American, Comparative, International 48123 (3d ed.2012).
4. See supra 6566.
123
124
but they were also harbingers of things to come. Each of these cases spoke of the policies or
purposes of the substantive rules involved in the conflict. Similarly, Grant v. McAuliffe and
Kilberg v.Northeast Airlines, Inc. are correctly cited as examples of a misuse of the substance-
versus-procedure dichotomy, but they also exemplified the courts increasing impatience with
the fortuitous way in which the lex loci delicti rule operated. Finally, although seemingly unrelated, Lauritzen v. Larsen5 was a cue from the U.S. Supreme Court that reliance on multiple
factors was not only acceptable, but also preferable to reliance on a single connecting factor for
selecting the law applicable to tort conflicts.
A. BABCOCK V.JACKSON
For all practical purposes, the revolution began in 1963 with the seminal New York case of
Babcock v.Jackson,6 the first case openly to abandon the traditional lex loci delicti rule. Babcock
arose out of a single-car accident in Ontario, Canada, which resulted in injury to a NewYork
domiciliary, who was a guest-passenger in a car insured and garaged in NewYork and driven
by a NewYork host-driver. NewYork law allowed the passenger to bring a tort action against
the host-driver, whereas Ontarios guest statute immunized the driver and his insurer from
suits brought by a gratuitous guest-passenger.
The Babcock court resolved the resulting conflict by enunciating a new approach for tort
conflicts, drawing from the center of gravity approach the court previously applied in contract conflicts,7 but also taking it much further. The court described the new approach as one
based on a [c]omparison of the relative contacts and interests8 of the involved states. The
court asked the rhetorical question of whether the place of the tort [should] invariably govern
the availability of relief for the tort or [whether] the applicable choice of law rule [should] also
reflect a consideration of other factors which are relevant to the purposes served by the enforcement or denial of the remedy.9 The court ultimately answered the question by deciding to
apply the law of the state that because of its relationship or contact with the occurrence of the
parties, has the greatest concern with the specific issue raised in the litigation.10 The italicized
phrases illuminate the four important elements of the courts approach, discussedbelow.
1. Issue-b y-I ssue Analysis

First, the word invariably suggests that the court did not seek a wholesale abandonment of
the lex loci rule, but rather a narrowing of its scope, depending on the particular issue on which
the laws of the involved states actually conflicted. Here, the conflict was confined to a single
issuethe drivers immunity from suit, because of the Ontario guest-statute, and the absence
5. 345 U.S. 571 (1953) (discussed infra 64142; enunciating a multifactor test for delineating the extraterritorial application of the Jones Act and selecting the law governing certain maritime torts).
6. 191 N.E.2d 279 (N.Y.1963).
7. See infra, 13334.
8. Babcock, 191 N.E.2d at284.
9. Id. at 28081 (first emphasis in original; second emphasis added).
The Judicial Revolution in Torts and Contracts
125
of such a statute in NewYork. The court was no longer thinking in broad global terms, such as
whether the problem at hand should be characterized as one of tort or contract, or which law
should apply to the tort as a whole. Rather, the court isolated the particular issue and focused
its analysis on the actually conflictinglaws.
This issue-by-issue analysis was a return to the familiar schemes of common-law decision-
making
temporarily submerged by Bealian systematics
which is characterized by small,
cautious steps of inductive reasoning. At least in the abstract, this method of analysis is more
conducive to a nuanced, individualized, and thus more rational, resolution of conflicts problems.
That is why this analysis has become an integral feature of all modern policy-based approaches.
2.Dpeage
One of the reasons Babcock was an easy case was because it involved a conflict with regard to
only one issue. When a case, or more precisely a cause of action, involves conflicts with regard
to more than one issue, then the court is to analyze each conflict separately. Depending on the
circumstances, this analysis may lead to the conclusion that:(1)one state is interested in applying its law to all issues, or (2)one state is interested in one issue, while another state is interested in another issue. In the latter situation, if the court applies the laws of each state to the
issue in which each state is respectively interested, the resulting phenomenon is called dpeage.
Dpeage is neither a choice-of-law doctrine nor a goal of the choice-of-law process.
Rather, it is the often-unintended result of the abandonment of the traditional theorys broad
categories and the adoption of issue-by-issue analysis. It is also a natural consequence, and
an appropriate recognition, of the fact that the states involved in the case may be interested
in different aspects, or in varying degrees. As such, dpeage is, per se, neither good, nor bad.
However, in some cases the application of the law of two different states to different issues in
the same case may unintentionally defeat the policies of both states. In such cases, dpeage is
inappropriate and must be avoided.11
3. The Distinction betweenLoss-Distribution

and Conduct-R egulation Issues
Because Babcock was a single-issue conflict, the court did not need to engage in dpeage, in the
sense of actually applying the laws of two different states. However, the Babcock court clearly
signaled its willingness to engage in dpeage by stating in dictum that it would have reached
a different conclusion with regard to Ontarios interest had the issue related to the manner in
which the defendant had been driving his car at the time of the accident [or to] the defendants exercise of due care.12
11. For a full discussion of dpeage in American conflicts law, see S. Symeonides, Issue-by-Issue Analysis
and Dpeage in Choice of Law: Cause and Effect, 45 U. Toledo L. Rev. 751 (2014). For discussion of
dpeage in foreign private international law codifications, see S. Symeonides, Codifying Choice of Law
22044.
12. Babcock, 191 N.E.2d at284.
126
At the same time, through this dictum, the court enunciated a distinction between:
(1) issues of regulation of conduct, such as whether the defendant offended against a rule
of the road prescribed by Ontario for motorists generally, or whether he violated some
standard of conduct imposed by that jurisdiction;and
(2) issues such as those actually involved in Babcocknamely, whether the plaintiff,
because she was a guest in the defendants automobile, is barred from recovering damages for a wrong concededly committed.13
The latter issues are hereinafter referred to as issues of loss-
distribution. They
include: (1) guest-statutes, such as Ontarios in Babcock; (2) New Yorks opposite common-law
rule, which provided recovery to the victim despite her status as a gratuitous guest; (3)rules eliminating or limiting the defendants liability, such as rules of intra-family or charitable immunity; or
(4)rules imposing a ceiling on the amount of recovery. With regard to conduct-regulation issues,
the court stated that the state in which the conduct occurred will usually have a predominant,
if not exclusive, concern, and that it would be almost unthinkable to seek the applicable rule in
the law of some other place.14 Thus, according to Babcock, rules that regulate conduct operate territorially. In contrast, rules that regulate loss-distribution do not necessarily operate territorially.
As we shall see later, the distinction between conduct-regulating rules and loss-distributing
rules is conceptually easy, but often it is difficult to apply in practice.15 Not only do reasonable
people disagree about whether a particular rule falls within one category or the other, but also
they often agree that a given rule of law may both regulate conduct and effect or affect loss distribution. Babcock assumed that a guest statute does not affect a drivers conduct because a driver
does not drive differently depending on whether the state in which she drives has a guest statute.
If this assumption is correct, then this is another reason for which Babcock was an easycase.
4. Policy Analysis
According to Babcock, the search for the applicable law should take into account more factors and
contacts than the place of the tort, including the overall relationship of each involved state with
the occurrence and the parties. More important, the search should seek to identify the state that,
because of this relationship and the purposes sought to be served by its laws, has the greatest
concern with regard to the specific issue in dispute. Thus, Babcock introduced a policy-based
analysis, going beyond the center-of-gravity approach enunciated earlier in Auten v.Auten.16
The Babcock court identified the policies underlying the respective rules of Ontario and
NewYork, and then examined whether the application of each rule would further its underlying purpose or policy. Assuming that the purpose of the Ontario guest statute was to protect
Ontario insurersand only Ontario insurersfrom collusion between drivers and their gratuitous guests, the court concluded that the application of the statute would not further its
13. Id.
14. Id.
15. See infra, 18889.
16. 124 N.E.2d 99 (N.Y. 1954)(discussed infra, at 13334).
127
purpose in this case, because it did not involve an Ontario insurer.17 Thus, Ontario was not
interested in applying that statute.
Conversely, reasoning that the policy underlying NewYorks refusal to enact a guest-statute
was to compensate traffic-accident victims, regardless of their status as gratuitous guests, the
court concluded that the application of NewYork law to this case, which involved a NewYork
victim injured by a NewYork driver, would further this policy by allowing a NewYork victim
to recover damages. Thus, because NewYork was interested in applying its law, and Ontario
was not, this was a false conflict, which the court resolved by applying the law of the only
interested stateNewYork.
B.AFTER BABCOCK
Since Babcock, 41 other jurisdictions have followed NewYorks lead by abandoning the lex loci
delicti rule.18 Charts 1 and 2, below, and Table 1, below, depict the chronology of this movement, which is documented in the accompanying text and footnotes. Charts 1 and 2 also show
the parallel retreat of the lex loci contractus rule, which is discussedlater.
50
45
Lex Loci Delicti
40
Lex Loci Contractus
35
30
25
20
15
10
0
1962 64
66
68 1970 72
74
76
78 1980 82
84
86
88 1990 92
94
96
98 2000 02
04
06
08 2010 12
14
Chart 1. The Retreat of the Lex Loci Delicti and Lex Loci ContractusRules.
17.In a later case, Neumeier v. Kuehner, 286 N.E.2d 454 (N.Y. 1972), the court acknowledged that
Further research ha[d]revealed the distinct possibility that one purpose, and perhaps the only purpose, of the statute was to protect owners and drivers against ungrateful guests. Id. at 455 (quoting W.
Reese, Chief Judge Fuld and Choice of Law, 71 Col. L.Rev. 548, 558 (1971)).
18. This number includes the District of Columbia and the Commonwealth of PuertoRico.
128
45
40
The Revolution in Torts
35
The Revolution in Contracts
30
25
20
15
10
0
1962 64
66
68 1970 72
74
76
78 1980 82
84
86
88 1990 92
94
96
98 2000 02
04
06
08 2010 12
14
Chart 2. The Revolution in Torts and Contracts.
Table1 permits the following observations:

Most of the departures from the lex loci delicti rule (a total of 17)occurred in the 1960s,
thus establishing the 1960s as the decade of the choice-of-law revolution. Twelve of
those departures occurred in the period 19661969, during which the ALI published the
Official Proposed Drafts of the Restatement (Second). Of the 17 jurisdictions that abandoned the lex loci delicti rule in the 1960s: (1) nine jurisdictions adopted an approach
based largely on the draft Restatement (Second),19 (2)five jurisdictions opted for interest
analysis,20 (3) two jurisdictions opted for Professor Leflars better-law approach,21 and
(4)one jurisdiction opted for the significant-contacts approach.
19. In chronological order, see Balts v.Balts, 142 N.W.2d 66 (Minn. 1966); Kopp v.Rechtzigel, 141 N.W.2d
526 (Minn. 1966); Myers v. Gaither, 232 A.2d 577 (D.C. 1967); Wessling v. Paris, 417 S.W.2d 259 (Ky.
1967); Casey v.Manson Constr. & Engg Co., 428P.2d 898 (Or. 1967); Armstrong v.Armstrong, 441P.2d
699 (Alaska 1968); Schwartz v. Schwartz, 447 P.2d 254 (Ariz. 1968); Fuerste v. Bemis, 156 N.W.2d 831
(Iowa 1968); Mitchell v.Craft, 211 So. 2d 509 (Miss. 1968); Kennedy v.Dixon, 439 S.W.2d 173 (Mo.1969).
20. In chronological order, see Babcock v.Jackson, 191 N.E.2d 279 (N.Y. 1963); Griffith v.United Air Lines,
Inc., 203 A.2d 796 (Pa. 1964); Wilcox v.Wilcox, 133 N.W.2d 408 (Wis. 1965); Reich v.Purcell, 432P.2d 727
(Cal. 1967); Mellk v.Sarahson, 229 A.2d 625 (N.J. 1967). Classifying Babcock as an interest analysis case is
debatable. Because the NewYork courts approach was a combination of the center-of-gravity approach with
a type of policy analysis that was similar, but not identical, to interest analysis, it would be more accurate to
classify Babcock as following a mixed approach. In any event, the NewYork Court of Appeals later switched to
a mixed approach when it adopted the Neumeier rules. See Neumeier v.Kuehner, 286 N.E.2d 454 (N.Y.1972).
21. See Clark v.Clark, 222 A.2d 205, 210 (N.H. 1966); Woodward v.Stewart, 243 A.2d 917, 923 (R.I.1968).
Table1. Chronological Table ofDepartures fromthe Lex Loci DelictiRule

Lex loci states
1962
1963
1964
1965
1966
1967
1968
1969
1970
1971
1972
1973
1974
1975
1976
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
20012013
2014
2015
52
51
50
49
46
41
36
35
33
33
32
30
28
28
27
26
26
25
24
23
22
22
21
20
19
17
17
16
16
15
13
13
13
13
12
11
11
11
10
10
10
10
Departures from the lex loci delicti rule

1
1
1
3
5
5
1
2
NewYork
Pennsylvania
Wisconsin
Minnesota
California
Alaska
Missouri
Illinois
1
2
2
North Dakota
Colorado
Oklahoma
1
1
Massachusetts
Arkansas
1
1
1
1
Texas
Florida
Hawaii
Michigan
1
1
1
2
Ohio
Idaho
Connecticut
Indiana
Utah
1
2
Delaware
South Dakota
1
1
Nevada
Vermont
Montana
New Hampshire
Puerto Rico
Dist. of Columbia Kentucky
New Jersey Oregon
Arizona
Iowa
Mississippi Rhode Island
Maine
Louisiana
Washington
Nebraska
Tennessee
42
Remaining states, 10: Alabama, Georgia, Kansas, Maryland, New Mexico, North Carolina, South Carolina, Virginia,
West Virginia, and Wyoming.
130
Table 2, below, shows these jurisdictions in chronological order, with the approaches
they adopted then, and the approaches they follow today.22
Table 2. The1960s
Year
State
Approach then
Approach today
1963
1964
1965
NewYork
Pennsylvania
Wisconsin
Minnesota
New Hampshire
Puerto Rico
California
District of Columbia
Kentucky
New Jersey
Oregon
Alaska
Arizona
Iowa
Mississippi
Rhode Island
Missouri
Interest analysis
Interest analysis
Interest analysis
Restatement (2d)
Better-Law
Significant contacts
Interest analysis
Restatement (2d)
Restatement (2d)
Interest analysis
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Better-Law
Restatement (2d)
Mixed
Mixed
Better-Law
Better-Law
Better-Law
Signif. contacts
Interest analysis*
Interest analysis
Lex fori
Restatement (2d)
Mixed
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Better-Law
Restatement (2d)
1966
1967
1968
1969
During the 1970s, 10 more jurisdictions abandoned the lex loci delicti rule. Of
those: (1) six jurisdictions opted for the Restatement (Second),23 (2) two jurisdictions
opted for a mixed approach,24 (3) one jurisdiction opted for Leflars approach,25 and
(4)one jurisdiction opted for a significant-contacts approach.26
22. Eight of the 17 jurisdictions subsequently switched to another approach:(1)Minnesota switched to
Leflars better-law approach (see Milkovich v. Saari, 203 N.W.2d 408 (Minn. 1973)); (2) the District of
Columbia switched to interest analysis (see Kaiser-Georgetown Comm. Health Plan, Inc. v.Stutsman, 491
A.2d 502 (D.C. 1985)); (3)Oregon switched to a mixed approach by adopting a new choice-of-law statute
in 2009 (see infra, 68893); (4)Kentucky switched to a lex fori approach (see Foster v.Leggett, 484 S.W.2d
827 (Ky. 1972)); (5)Pennsylvania switched to a mixed approach (see Cipolla v.Shaposka, 267 A.2d 854
(Pa. 1970)(following Cavers), and Miller v.Gay, 470 A.2d 1353 (Pa. 1984)(interest analysis and Second
Restatement)); (6)Wisconsin switched to Leflars better-law approach (see Heath v.Zellmer, 151 N.W.2d
664 (Wis. 1967), and Lichter v. Fritsch, 252 N.W.2d 360 (Wis. 1977)); (7) California modified interest
analysis by adding to it the comparative impairment approach (see Bernhard v.Harrahs Club, 546P.2d
719 (Cal. 1976), cert. denied, 429 U.S. 859 (1976)); and (8) New Jersey switched to the Restatement
(Second) (see P.V.v.Camp Jaycee, 962 A.2d 453 (N.J. 2008)).
23. See Ingersoll v. Klein, 262 N.E.2d 593 (Ill. 1970); Beaulieu v. Beaulieu, 265 A.2d 610 (Me. 1970);
First Natl Bank v. Rostek, 514 P.2d 314 (Colo. 1973); Brickner v. Gooden, 525 P.2d 632 (Okla. 1974);
Johnson v. Spider Staging Corp., 555 P.2d 997 (Wash. 1976); Werner v. Werner, 526 P.2d 370 (Wash.
1974); Gutierrez v.Collins, 583 S.W.2d 312 (Tex.1979).
24. See Jagers v. Royal Indem. Co., 276 So. 2d 309 (La. 1973); Pevoski v. Pevoski, 358 N.E.2d 416
(Mass.1976).
25. Wallis v.Mrs. Smiths Pie Co., 550 S.W.2d 453 (Ark.1977).
26. See Issendorf v.Olson, 194 N.W. 2d 750 (N.D.1972).
131
Table 3, below, shows these jurisdictions, in chronological order, with the approaches
Table3. The 1970s
Year
1970
1972
1973
1974
1976
1977
1979
State
Approach then
Approach today
Illinois
Maine
North Dakota
Colorado
Louisiana
Oklahoma
Washington
Massachusetts
Arkansas
Texas
Restatement (2d)
Restatement (2d)
Restatement (2d)
Mixed
Restatement (2d)
Restatement (2d)
Mixed
Better-Law
Restatement (2d)
Restatement (2d)
Restatement (2d)
Signif. contacts
Restatement (2d)
Mixed
Restatement (2d)
Restatement (2d)
Mixed
Better-Law
Restatement (2d)
The equipoise point between the old and the new approaches was 1977, at which time as
many jurisdictions (26) adhered to the lex loci rule as had abandonedit.
During the 1980s, nine more jurisdictions abandoned the lex loci rule. Of those:(1)six
jurisdictions opted for the Restatement (Second),28 (2) one jurisdiction opted for the
significant-contacts approach,29 (3)one jurisdiction opted for a lex fori approach;30 and
(4)one jurisdiction adopted a mixed approach.31
Table 4, the following page, shows these jurisdictions, in chronological order, with the
approaches they adopted then, and the approaches they follow today.32
During the 1990s, five more jurisdictions followed suit in abandoning the lex loci rule.
Of those: (1) four jurisdictions opted for the Restatement (Second),33 and (2) one
27. All of these jurisdictions follow the same approachestoday.
28. See Bishop v.Fla. Specialty Paint Co., 389 So. 2d 999 (Fla. 1980); Morgan v.Biro Mfg. Co., 474 N.E.2d
286 (Ohio 1984); Johnson v. Pischke, 700 P.2d 19 (Idaho 1985); OConnor v. OConnor, 519 A.2d 13
(Conn. 1986); Crossley v.Pacific Emps. Ins. Co., 251 N.W.2d 383 (Neb. 1977)(relying alternatively on the
Restatement (Second) and the lex loci delicti with the same result); Harper v.Silva, 399 N.W.2d 826 (Neb.
1987)(interpreting Crossley as having adopted the Restatement (Second)); Forsman v.Forsman, 779P.2d
218 (Utah1989).
29. See Hubbard Mfg. Co. v. Greeson, 515 N.E.2d 1071, 107374 (Ind. 1987) (holding that when the
place of the tort is an insignificant contact, the court will turn to the Restatement (Second), but stopping
short of embracing the policy-analysis component of the Restatement (Second) or abandoning the lex
loci rule in general).
30. See Sexton v.Ryder Truck Rental, Inc., 320 N.W.2d 843 (Mich.1982).
31. See Peters v.Peters, 634P.2d 586 (Haw. 1981)(applying a blend of interest analysis and Leflars choice-
influencing considerations).
32. All of these jurisdictions follow the same approachestoday.
33. See Travelers Indem. Co. v.Lake, 594 A.2d 38 (Del. 1991); Chambers v.Dakotah Charter, Inc., 488
N.W.2d 63 (S.D. 1992); Hataway v.McKinley, 830 S.W.2d 53 (Tenn. 1992); Amiot v.Ames, 693 A.2d 675
(Vt.1997).
132
Table4. The1980s
Year
State
Approach then
Approach today
1980
1981
1982
1984
1985
1986
Florida
Hawaii
Michigan
Ohio
Idaho
Connecticut
Indiana
Nebraska
Utah
Restatement (2d)
Mixed
Lex fori
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Mixed
Lex fori
Restatement (2d)
Restatement (2d)
Restatement (2d)
Signif. contacts
Restatement (2d)
Restatement (2d)
1987
1989
jurisdiction adopted a lex fori approach.34 Finally, in the year 2000, one more jurisdiction abandoned the lex loci rule in favor of the Restatement (Second).35
Table 5, below, shows these jurisdictions in chronological order, with the approaches,
shows these jurisdictions, in chronological order, with the approaches they adopted
then, and the approaches they follow today.36
Table5. The 1990s andLater
Year
State
Approach then
Approach today
1991
Delaware
South Dakota
Tennessee
Nevada
Vermont
Montana
Restatement (2d)
Restatement (2d)
Restatement (2d)
Lex fori
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
1992
1996
1997
2000
Since 2000, no other jurisdiction has abandoned the lex loci delicti rule. Thus, as of2015:
A total of 42 jurisdictions have abandoned the lex loci delictirule;
More than half (26) of the 42 jurisdictions have adopted the Restatement (Second),
and 24 of them continue to follow the Restatement today.37
Ten jurisdictions appear to adhere to the lex loci delicti rule, in varying degrees.38
34. See Motenko v.MGM Dist., Inc., 921P.2d 933 (Nev. 1996)(adopting a lex fori approach in tort cases,
unless another State has an overwhelming interest).
35. See Phillips v.Gen. Motors Corp., 995P.2d 1002 (Mont.2000).
36. Nevada subsequently switched to the Restatement (Second). See Gen. Motors Corp. v.Eighth Judicial
District, 134P.3d 111 (Nev.2006).
37.Three of the jurisdictions that adopted the Restatement (Second) in the 1960s (Minnesota, the
District of Columbia, and Kentucky) switched to another approach, but two jurisdictions (New Jersey
and Nevada) switched to the Restatement (Second) from another approach.
38. These jurisdictions are: Alabama, Georgia, Kansas, Maryland, New Mexico, North Carolina, South
Carolina, Virginia, West Virginia, and Wyoming. They are discussed, infra, at 14143.
133
Map 1, following page, shows the geographical distribution of these states, whereas Map 2,
infra at 140, shows the same with regard to contract conflicts, which are discussednext.
I I I . T H E R E T R EAT OF T HE LEX
L O C I C O N T RACTU S R UL E
A. BARBER, AUTEN, AND THE CENTER
OF GRAVITY APPROACH
In contract conflicts, the first abandonment of the lex loci contractus rule occurred as early as
1945, in the Indiana case of W. H. Barber Co. v. Hughes.39 Barber employed a method used
by modern teachers of Conflict of Laws in rationalizing the results obtained by the courts in
decided cases, called the center of gravity approach.40
Nine years later, the NewYork Court of Appeals adopted the same approach in Auten v.Auten.41
Relying on Barber and several academic commentators, the court reasoned that, although this
approach provided less certainty and predictability than the rigid general rules of lex loci contractus and lex loci solutionis, it was far more preferable to them, because instead of regarding as
conclusive the place of making or performance, [it] lay emphasis rather upon the law of the
place which has the most significant contacts with the matter in dispute.42 The merit of this
approach, the court continued, is that
[I]t gives to the place having the most interest in the problem paramount control over the legal
issues arising out of a particular factual context, thus allowing the forum to apply the policy
of the jurisdiction most intimately concerned with the outcome of [the] particular litigation.
Moreover, by stressing the significant contacts, it enables the court, not only to reflect the relative
interests of the several jurisdictions involved, but also to give effect to the probable intention of
the parties and consideration to whether one rule or the other produces the best practical result.43
Applying this approach, the court held that a separation and support agreement made in
New York, between an English husband and his English wife, was governed by English law,
under which the agreement was enforceable, rather than by NewYork, under which the agreement was unenforceable. Noting that the agreement determined and fixed the marital responsibilities of an English husband and father and provided for the support and maintenance of the
allegedly abandoned wife and children who were to remain in England,44 the court compared
Englands and New Yorks contacts with the parties and found that the former outnumbered
the latter, thus making England the center of gravity of the dispute. The court concluded that
39. 63 N.E.2d 417 (Ind.1945).
40. Id. at423.
41. 124 N.E.2d 99 (N.Y.1954).
42. Id. at 102 (internal citations and quotation marks omitted).
43. Id. (internal citations and quotation marks omitted).
44. Id. at103.
ME
WA
ND
MT
AK
MN
OR
PA
IA
NE
IL
CO
CA
HI
MI
WY
UT
NY
WI
SD
ID
NV
VT
NH MA
KS
MO
OH
IN
WV VA
KY
NC
TN
AZ
OK
NM
AR
SC
MS AL
TX
GA
LA
Modern
Traditional
Map 1. The Revolution in Tort Conflicts.
FL
CT RI
NJ
DE
MD
135
as the jurisdiction of marital domicile and the place where the wife and children were to be,
England had the greatest concern in prescribing and governing [the husbands] obligations,
and in securing to the wife and children essential support and maintenance and in defining
and regulating the rights and duties existing under th[e]agreement.45
B.AFTER AUTEN
Although Auten is generally considered as marking the beginning of the revolution in contract
conflicts, it did not garner a following until the 1960s. Even then, dissension against the lex
loci contractus rule was slow. It took three decades for half of the states to abandon the lex
loci contractus rule. As of 2015, 40 jurisdictions had done the same.46 The chronological order
in which they did so is shown in Charts 1 and 2, above, and Table 6, following page, and it is
documented in the accompanying text and footnotes.
As Charts 1 and 2, supra 12728 and, Table6, infra 136, indicate, the revolution spread at
a much slower and more even pace in contracts than intorts.
Despite the earlier departures from the lex loci contractus rule in Indiana and NewYork,
the revolution did not gain momentum until the 1960s, when nine jurisdictions abandoned that rule. Seven of them did so in the 19671969 period, which coincided with
the ferment surrounding the publication of the Restatement (Second) drafts. Of the
nine jurisdictions:(1)four adopted the Restatement (Second),47 (2)three adopted interest analysis,48 and (3) two adopted a significant-contacts approach influenced by the
Restatement.49
Table 7, infra 137, shows these jurisdictions, in chronological order, with the approaches
45. Id.
46. This number includes the District of Columbia and the Commonwealth of PuertoRico.
47. See Rungee v.Allied Van Lines, Inc., 449P.2d 378 (Idaho 1968); Consol. Mut. Ins. Co. v.Radio Foods
Corp., 240 A.2d 47 (N.H. 1968); Pioneer Credit Corp. v.Carden, 245 A.2d 891 (Vt. 1968); Baffin Land
Corp. v.Monticello Motor Inn, Inc., 425P.2d 623 (Wash.1967).
48. See Lilienthal v.Kaufman, 395P.2d 543 (Or. 1964); Travelers Ins. Co. v.Workmens Comp. Appeals
Bd., 434P.2d 992 (Cal. 1967); McCrossin v.Hicks Chevrolet, Inc., 248 A.2d 917 (D.C.1969).
49. See Maryland Cas. Co. v. San Juan Racing Assn, 83 P.R. 538 (1961); Green Giant Co. v. Tribunal
Superior, 104 P.R. Dec. 489 (1975); Urhammer v. Olson, 159 N.W.2d 688 (Wis. 1968). Wisconsin later
switched to Leflars better-law approach. See Haines v.Mid-Century Ins. Co., 177 N.W.2d 328 (Wis. 1970);
Schlosser v.Allis-Chalmers Corp., 271 N.W.2d 879 (Wis.1978).
50. Five jurisdictions later switched to another approach. Wisconsin switched to Leflars approach (see
Haines v. Mid-Century Ins. Co., 177 N.W.2d 328 (Wis. 1970); Schlosser v. Allis-Chalmers Corp., 271
N.W.2d 879 (Wis. 1978)), whereas California, the District of Columbia, NewYork, and Oregon switched
to a mixed approach. See, respectively, Nedlloyd Lines B.V. v. Superior Court, 834 P.2d 1148 (Cal.
1992); Wash. Mut. Bank v.Superior Court, 15P.3d 1071 (Cal. 2001); Dist. of Columbia Ins. Guar. Assn
v.Algernon Blair, Inc. 565 A.2d 564 (D.C. App.1989); Owen v.Owen, 427 A.2d 933, 937 (D.C. 1981);
In re Allstate Ins. Co. v.Stolarz, 613 N.E.2d 936 (N.Y. 1993)). For Oregon, see the new statute at 68890,
infra.
Table6. Chronological Table ofDepartures fromthe

Lex Loci ContractusRule
Lex loci states
1944
1945
1954
1961
1962
1963
1964
1965
1966
1967
1968
1969
1970
1971
1972
1973
1974
1975
1976
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
19972014
2015
52
51
50
49
49
49
48
48
48
46
42
41
39
39
39
39
39
39
39
37
36
32
30
30
30
28
26
25
24
24
21
21
21
21
20
20
15
13
12
12
12
Departures from the lex loci contractus rule

1
1
1
Indiana
NewYork
Puerto Rico
Oregon
2
4
1
2
California
Washington
Idaho
New Hampshire
Dist. Columbia
Arizona
Delaware
2
1
4
2
Iowa
Missouri
Arkansas
Mississippi
Kentucky
2
2
1
1
Maine
Ohio
Massachusetts
North Dakota
Pennsylvania
Texas
Hawaii
North Carolina
W. Virginia
Louisiana
5
2
1
Connecticut
Alaska
Utah
Montana
Michigan
Nebraska
Colorado
New Jersey
Vermont
Wisconsin
Illinois
Minnesota
Nevada
S. Dakota
40
Remaining states, 12: Alabama, Florida, Georgia, Kansas, Maryland, New Mexico, Oklahoma, Rhode Island, South
Carolina, Tennessee, Virginia, and Wyoming.
137
Table 7. The 1960s andBefore

Year
State
Approach then
Approach today
1945
1954
1961
1964
Indiana
NewYork
Puerto Rico
Oregon
California
Washington
Idaho
New Hampshire
Vermont
Wisconsin
District of Columbia
Center of gravity
Center of gravity
Interest analysis
Interest analysis
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Interest analysis
Center of gravity
Mixed
Signif. contacts
Mixed
Mixed
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Better-Law
Mixed
1967
1968
1969
During the 1970s, nine additional jurisdictions abandoned the lex loci contractus rule, of
which:(1)seven jurisdictions opted for the Restatement (Second),51 (2)one jurisdiction
opted for a significant contacts approach,52 and (3) one jurisdiction opted for Leflars
approach.53 Table8, following page, shows these jurisdictions, in chronologicalorder.
The decisive decade was the 1980s, during which 11 additional jurisdictions abandoned
the lex loci contractus rule, thus shifting the balance against it in 1985. Of the 11 jurisdictions: (1) Five jurisdictions adopted the Restatement (Second),54 and (2) six jurisdictions adopted a mixed approach that, in most instances, included reliance on the
Restatement.55 Table9, following page, shows these jurisdictions, in chronologicalorder.
51. See Burr v. Renewal Guar. Corp., 468 P.2d 576 (Ariz. 1970); Oliver B. Cannon & Son, Inc.
v. Dorr-Oliver, Inc., 394 A.2d 1160 (Del. 1978); Joseph L. Wilmotte & Co. v. Rosenman Bros., 258
N.W.2d 317 (Iowa 1977); Lewis v. Am. Family Ins. Group, 555 S.W.2d 579 (Ky. 1977); Natl Starch
& Chem. Corp. v. Newman, 577 S.W.2d 99 (Mo. App. 1978), cited with approval in Fruin-C olnon
Corp. v.Mo. Hwy. Transp. Commn, 736 S.W.2d 41 (Mo. 1987); Wood Bros. Homes, Inc. v.Walker
Adjustment Bureau, 601P.2d 1369 (Colo. 1979); Champagnie v.W.E. ONeil Constr. Co., 395 N.E.2d
990 (Ill. App.1979).
52. See Standard Leasing Corp. v.Schmidt Aviation, Inc., 576 S.W.2d 181 (Ark.1979).
53. See Hague v.Allstate Ins. Co., 289 N.W.2d 43 (Minn.1979).
54. See Spragins v.Louise Plantation, Inc., 391 So. 2d 97 (Miss. 1980); Boardman v.United Servs. Auto.
Assn, 470 So. 2d 1024 (Miss. 1985); Baybutt Constr. Corp. v.Commercial Union Ins. Co., 455 A.2d 914
(Me. 1983); Gries Sports Enters. v.Modell, 473 N.E.2d 807 (Ohio 1984); Duncan v.Cessna Aircraft Co.,
665 S.W.2d 414 (Tex. 1984). See also the following West Virginia cases relying heavily on the Restatement
(Second) in insurance contract conflicts: Cannelton Indus., Inc. v. Aetna Cas. & Sur. Co. of America,
460 S.E.2d 1 (W.Va. 1994); Adkins v.Sperry, 437 S.E.2d 284 (W.Va. 1993); Clark v.Rockwell, 435 S.E.2d
664 (W.Va. 1993); Nadler v. Liberty Mut. Fire Ins. Co., 424 S.E.2d 256 (W.Va. 1992); Lee v. Saliga, 373
S.E.2d 345 (W.Va. 1988); see also New v. Tac & C Energy, Inc., 355 S.E.2d 629 (W.Va. 1987) (applying
Restatement (Second) 196 to an employment contract).
55. See State Farm Mut. Auto. Ins. Co. v.Estate of Simmons, 417 A.2d 488 (N.J. 1980); Guy v.Liederbach,
459 A.2d 744 (Pa. 1983); Bushkin Assocs., Inc. v. Raytheon Co., 473 N.E.2d 662 (Mass. 1985); Apollo
Sprinkler Co. v. Fire Sprinkler Suppliers & Design, Inc., 382 N.W.2d 386 (N.D. 1986); Boudreau
v.Baughman, 368 S.E.2d 849 (N.C. 1988)(interpreting the phrase appropriate relation in the forums
138
Table 8. The1970s
Year
1970
1977
1978
1979
State
Arizona
Delaware
Iowa
Kentucky
Missouri
Arkansas
Colorado
Illinois
Minnesota
Approach then
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Better-Law
Approach today
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Signif. contacts
Restatement (2d)
Restatement (2d)
Better-Law
Table 9. The1980s
Year
1980
1983
1984
1985
1986
1988
State
Approach then
Approach today
Mississippi
New Jersey
Maine
Pennsylvania
Ohio
Texas
Massachusetts
North Dakota
Hawaii
North Carolina
West Virginia
Restatement (2d)
Mixed
Restatement (2d)
Mixed
Restatement (2d)
Restatement (2d)
Mixed
Mixed
Mixed
Mixed
Restatement (2d)
Restatement (2d)
Mixed
Restatement (2d)
Mixed
Restatement (2d)
Restatement (2d)
Mixed
Mixed
Mixed
Mixed
Restatement (2d)
The twentieth century ended with nine additional jurisdictions abandoning the lex
loci rule. Of those: (1) seven jurisdictions opted for the Restatement (Second),56
version of UCC Art. 1-105 as equivalent to the phrase most significant relationship as used in the
Restatement (Second)); Lewis v.Lewis, 748P.2d 1362 (Haw. 1988)(interpreting Peters v.Peters, 634P.2d
586 (Haw. 1981), a tort conflict, as having adopted a significant-relationship test with primary emphasis
on the state with the strongest interest).
56. See Williams v. State Farm Mut. Auto. Ins. Co., 641 A.2d 783 (Conn. 1994); Casarotto v.Lombardi,
886P.2d 931 (Mont. 1994); Powell v.Am. Charter Fed. S & L Assn, 514 N.W.2d 326 (Neb. 1994)(explicitly adopting the Restatement (Second)). An earlier case, Shull v. Dain, Kalman & Quail, Inc., 267
N.W.2d 517 (Neb. 1978), had also applied the Restatement (Second). See also Stockmens Livestock Exch.
v. Thompson, 520 N.W.2d 255 (S.D. 1994); Palmer G. Lewis Co. v. ARCO Chem. Co., 904 P.2d 1221
(Alaska 1995) (interpreting Ehredt v. DeHavilland Aircraft Co. of Canada, Ltd., 705 P.2d 446 (Alaska
1985), a tort case, as having adopted the Restatement (Second) for contract conflicts as well); Chrysler
Corp. v.Skyline Indus. Servs., Inc., 528 N.W.2d 698 (Mich. 1995); Am. Natl Fire Ins. Co. v.Farmers Ins.
Exch., 927P.2d 186 (Utah1996).
139
(2) one jurisdiction opted for a significant contacts approach,57 and (3) one opted
for a mixed approach.58 Table 10, below, shows these jurisdictions, in chronological
order.
Table10. The 1990s andLater

Year
State
Approach then
Approach today
1992
Louisiana
Connecticut
Montana
Nebraska
Nevada
South Dakota
Alaska
Michigan
Utah
Mixed
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
Mixed
Restatement (2d)
Restatement (2d)
Restatement (2d)
Signif. contacts
Restatement (2d)
Restatement (2d)
Restatement (2d)
Restatement (2d)
1994
1995
1996
Since 1996, no other jurisdiction has abandoned the lex loci contractus rule. Thus, as
of2015:
A total of 40 jurisdictions have abandoned thisrule.
More than half (23) of the 40 jurisdictions have adopted the Restatement (Second)
and continue to follow it todate.
Twelve jurisdictions appear to adhere to the lex loci contractus rule, in varying degrees
of commitment.59
Map 2, following page, shows the geographical distribution of these states.
Finally, mention should be made of the choice-of-law codifications of Louisiana (1991)
and Oregon (2001 and 2009), and the Puerto Rico draft codification (1991), all three of which
have adopted a combined-modern approach. These codifications are discussed in Chapter17,
infra.60
57. See Hermanson v.Hermanson, 887P.2d 1241 (Nev. 1994)(a status case reinterpreting earlier contract
cases as having adopted a substantial relationshiptest).
58. See La. Civ. Code Arts. 35373540, enacted in 1992, described, infra, 67888, providing rules based
on the notion that the applicable law should be the law of the state whose policies would be most seriously impaired if its law were not applied).
59.These states are: Alabama, Florida, Georgia, Kansas, Maryland, New Mexico, Oklahoma, Rhode
Island, South Carolina, Tennessee, Virginia, and Wyoming. They are discussed, infra, at 14143.
60. See infra, 67893.
N
ME
WA
AK
ND
MT
MN
OR
HI
MI
WY
PA
IA
NE
UT
NY
WI
SD
ID
NV
VT
NH MA
IL
CO
CA
KS
MO
OH
IN
WV VA
KY
NC
TN
AZ
OK
NM
AR
SC
MS AL
TX
GA
LA
FL
Map 2. The Revolution in Contract Conflicts.
CT RI
NJ
DE
MD
141
I V. T H E REM A I NI NG
T R A D I T I O NA L S TAT ES
As Tables1 and 2 indicate, the revolutionary momentum seems to have stopped in the closing
years of the twentieth century. No state has abandoned the traditional systemsince 1996 in
contracts and since 2000 in torts. This leaves 12 states continuing to follow the traditional system in contract conflicts, and 10 states doing so in tort conflicts. For the readers convenience,
these states are shown again in Table11.
As Table11 indicates, the lists for torts and contracts are not identical. Four states (Florida,
Oklahoma, Rhode Island, and Tennessee) have abandoned the traditional system in tort conflicts, but not in contract conflicts, whereas two states (North Carolina and West Virginia) have
done the reverse. The reasons vary from state to state. For example, of the first four states, only
Florida explicitly decided to retain the lex loci contractus rule after having abandoned the lex
loci delicti rule.61 In Oklahoma, the reason is an old statute that codified the lex loci contractus and lex loci solutionis rules,62 although the same statute has not prevented the Oklahoma
Supreme Court from applying the Restatement (Second) in insurance contract conflicts,63 and
Table11. TraditionalStates
Contracts
Torts
Alabama
Florida
Georgia
Kansas
Maryland
New Mexico
Alabama
Oklahoma
Rhode Island
South Carolina
Tennessee
Virginia
Wyoming
Total 12
Georgia
Kansas
Maryland
New Mexico
North Carolina
South Carolina
Virginia
West Virginia
Wyoming
Total 10
61. See Sturiano v.Brooks, 523 So. 2d 1126 (Fla. 1988)(reaffirming the lex loci contractus rule and specifically refusing to extend to contract conflicts the most significant relationship formula earlier adopted
for tort conflicts).
62. See Harvell v.Goodyear Tire & Rubber Co., 164P.3d 1028 (Okla.2006).
63. See Bohannan v.Allstate Ins. Co., 820P.2d 787 (Okla.1991).
142
conflicts involving sales of goods under the U.C.C.64 In Rhode Island65 and Tennessee,66 the
respective supreme courts simply did not have a good opportunity to reconsider the lex loci
contractus rule after they abandoned the lex loci delicti rule in 1968 and 1992, respectively.
The inevitable, and perhaps intriguing, question is why the remaining states continue to
hold onto the old rules after so many sister states have abandoned them. But a better question is whether these states would continue to follow these rules, if they could not evade them
whenever they did not like their results. The answer is probably not. For example, a perusal of
the decisions of the supreme courts of these states reveals many more cases of evading the lex
loci delicti rule than applying it.67 The most common evasion tactics are:(1)the defensive use
of the forums public policy, as an exception from the otherwise applicable foreign law (ordre
public);68 and (2)the offensive use of the forums policy, as the affirmative reason for applying
forumlaw.69
The first use of public policy (the defensive use) is an established exception under the traditional theory, but only when the foreign law is truly repugnant to the forums sense of justice and fairness.70 None of these cases met this threshold. They involved common issues of
interspousal immunity, comparative negligence, strict liability, and a guest statute. The second
use of public policy (the offensive use) differs little from its use in modern approaches, such
64. See Ysbrand v.DaimlerChrysler Corp., 81P.3d 618 (Okla. 2003), cert. denied, 542 U.S. 937 (2004);
Bernal v.Charter Cnty. Mut. Ins. Co., 209P.3d 309 (Okla.2009).
65.In A.C. Beals Co. v.Rhode Island Hosp., 292 A.2d 865 (R.I. 1972), the court held that the law of Rhode
Island should govern under whatever theory we follow, after finding that the contract had been made
in that state and that Rhode Island had the most significant interest in th[e]matter[.] Id. at 871. The
court also noted that, based on the record before it, the court need not and do[es] not decide whether to
adopt the modern approach it had earlier adopted for tort conflicts. Id. Some courts have interpreted this
statement as a reaffirmation, see Soar v.Natl Football League Players Assn, 550 F.2d 1287, 1290 (1st Cir.
1977), and others as an abandonment of the lex loci contractus rule, see Everett/Charles Contact Prod.,
Inc. v.Centec, S.A.R.I, 692 F.Supp.83, 89 (D.R.I. 1988). See also Gordon v.Clifford Metal Sales Co., Inc.,
602 A.2d 535 (R.I. 1992)(a case involving security interests, and alternatively based on the reasonable
relation language of U.C.C. 1-105 and Restatement (Second)6).
66.In Ellis v. Pauline S. Sprouse Residuary Trust, 280 S.W.3d 806 (Tenn. 2009), the Supreme Court of
Tennessee applied the lex loci contractus rule to a case in which no other law was invoked or could have
been applied. The court applied Tennessee law to a case involving the question of whether a Tennessee
lessee had exercised an option to renew a lease of Tennessee farmland.
67. For a discussion of these cases, see Symeonides, Choice-of-Law Revolution 5158. For a discussion of
contract conflicts in the 12 traditional states, see id.5862.
68. See Boone v.Boone, 546 S.E.2d 191 (S.C. 2001); Mills v.Quality Supplier Trucking, Inc., 510 S.E.2d
280 (W. Va. 1998); Alexander v. Gen. Motors Corp., 478 S.E.2d 123 (Ga. 1996); Paul v. Natl Life, 352
S.E.2d 550 (W.Va.1986).
69. See Willey v.Bracken, 228 W.Va. 244 (W.Va. 2010); Russell v.Bush & Burchett, Inc., 559 S.E.2d 36
(W.Va. 2001); Torres v.State, 894P.2d 386 (N.M. 1995); Braxton v.Anco Elec., Inc., 409 S.E.2d 914 (N.C.
1991). This use of public policy is also common in cases involving employment injuries and workers
compensation issues. See Russell v.Bush & Burchett, Inc., 559 S.E.2d 36 (W.Va. 2001); Powell v.Erb, 709
A.2d 1294 (Md. 1998); Bishop v.Twiford, 562 A.2d 1238 (Md. 1989); Hauch v.Connor, 453 A.2d 1207
(Md. 1983); Leonard v.Johns-Manville Sales Corp., 305 S.E.2d 528 (N.C.1983).
70. See supra 7879; Loucks v. Standard Oil Co. of New York, 120 N.E. 198, 202 (N.Y. 1918) (asking
whether the foreign law shock[s]our sense of justice[,] menaces the public welfare[,] or violate[s]
some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted
tradition of the common weal).
143
as interest analysis, but it is obviously incompatible with the content-neutral, jurisdiction-

selecting nature of the traditional method. Other escape devices include (1)the selective use
or nonuse of renvoi;71 (2) a manipulative characterization of the action as contractual rather
than delictual;72 (3)a peculiar use of comity as a reason for rejecting, rather than deferring to,
foreign law;73 and (4)a finding that somehow the locus state had no law.74
The Supreme Court of West Virginia provided a candid and blunt explanation for the lack
of incentive to abandon the lex loci rulethe availability of escapes, which the court can employ
at will to reach the desired substantive result, which usually is the avoidance of foreign law. In
Paul v.National Life,75 the court rejected an appeal to adopt the Restatement (Second), stating:
[I]f we are going to manipulate conflicts doctrine in order to achieve substantive results, we
might as well manipulate something we understand. Having mastered marble, we decline an
apprenticeship in bronze. We therefore reaffirm our adherence to the doctrine of lex loci delicti
today.76
71. See Am. Motorists Ins. Co. v. ARTRA Group, Inc., 659 A.2d 1295 (Md. 1995) (employing renvoi
and avoiding the application of the lex loci contractus); Erie Ins. Exch. v.Heffernan, 925 A.2d 636 (Md.
2007)(choosing not to employ renvoi, because, unlike other cases in which the court employed renvoi
to avoid undesirable foreign law, in this case, the foreign law produced the desired result of allowing
recovery to forum residents).
72. See Dreher v.Budget Rent-A-Car Sys., Inc., 634 S.E.2d 324 (Va.2006).
73. See Russell v. Bush & Burchett, Inc., 559 S.E.2d 36 (W.Va. 2001) (invoking comitya doctrine of
deferencenot in order to defer to foreign law, but rather to rejectit).
74. See Leonard v.Johns-Manville Sales Corp., 305 S.E.2d 528 (N.C. 1983)(finding that the state of the
tort had [n]o law one way or another, id. at 532, thus rendering inapplicable the lex loci delicti rule, and
leaving forum law to fill thevoid).
75. 352 S.E.2d 550 (W.Va.1986).
76. Id. at 556. In this case, arising from an Indiana traffic accident involving only West Virginia parties,
the vehicle for reaching the desired substantive result was the ordre public exception, which enabled the
court to avoid the Indiana guest-statute.
seven
The Choice-of-Law
RevolutionToday
methodological pluralism
The fact that the vast majority of states have abandoned the traditional system in tort and
contract conflicts does not mean that those states opted for the same choice-of-law approach.
As Chapter5 indicates, the scholastic revolution that instigated and guided the judicial revolution described in Chapter6 did not consist of a single movement, but rather encompassed
several parallel movements united only in their opposition to the old order. Thus, courts that
were inclined to abandon the old rules had the option of choosing from among several alternatives. Not only did the courts make different choices, but they also added their own variations,
combinations, or embellishments. As a result, the revolution did not produce a unified national
choice-of-law system, but rather several alternative approaches that continue to vie for judicial
following in the various states. This chapter surveys the methodological landscape, attempting to put the methodological pluralism engendered by the choice-of-law revolution in black
andwhite.
I I . ME T H O D O L O GI CA L PL UR A L I S M
A.METHODOLOGICALCAMPS
Table 12, following page, depicts this methodological pluralism. It shows the judicial following of the various choice-of-law approaches in the 50 states, the District of Columbia, and the
Commonwealth of Puerto Rico. In reviewing this table, the reader should keep in mind the
caveats in the followingtext.
145
Table 12. Alphabetical List ofStates and Choice-of-Law

Methodologies Followed
States
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
D.C.
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
NewYork
No. Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Signif. Restatement Interest

Combined
Traditional contacts
2d
Analysis Lex Fori Better Law Modern
T+C
T+C
T+C
C
T
T
T+C
T+ C?
T+C
C
T+C
T
T+C
T+C
T+C
T+C
T+C
T+C
C
T
T+C
T+C
T+C
T+C
C
T
T+C
T+C
T+C
T+C
T+C
T
C
T
T
C
T+C
T+C
T
C
T
C
T+C
T
T+C
T+C
The Choice-of-Law RevolutionToday
147
Table 12. Continued

States
Puerto Rico
Rhode Island
So. Carolina
So. Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
TOTAL 52
Signif. Restatement Interest

Combined
Traditional contacts
2d
Analysis Lex Fori Better Law Modern
T+C
C
T+C
T
T+C
T
T+C
T+C
T+C
T+C
T+C
C
T+C
T+C
Torts10
Contr. 12
Torts3
Contr. 5
Torts24
Contr. 23
Torts2
Contr. 0
T=Torts
Torts2
Contr.0
Torts5
Contr. 2
Torts6
Contr. 10
C=Contracts
B.CAVEATS
Determining which approach a particular jurisdiction follows is not an exact science. Difficulties
arise from a variety of causes, ranging from the lack or dearth of recent authoritative precedent,1 to precedents that are either equivocal2 or exceedingly eclectic. As noted elsewhere,
[F]ew cases rely exclusively on a single policy-based approach. Courts tend to be less interested in
theoretical purity and more interested in reaching what they perceive to be the proper result. The
majority of cases that have abandoned the traditional approach tend to use modern approaches
interchangeably and often as a posteriori rationalizations for results reached on other grounds.3
1. For example, as noted earlier, the supreme courts of Rhode Island and Tennessee did not have a good
opportunity to reconsider the lex loci contractus rule, after they abandoned the lex loci delicti rule, in 1968
and 1992, respectively.
2. For example, in McMillen v.Winona National & Savings Bank, 648 S.W.2d 460 (Ark. 1983), and Standard
Leasing Corp. v.Schmidt Aviation, Inc., 576 S.W.2d 181 (Ark. 1979), the Arkansas Supreme Court applied
a significant-contacts approach. In Stacy v.St. Charles Custom Kitchens of Memphis, Inc., 683 S.W.2d 225
(Ark. 1985), however, the court appeared to revert to the lex loci contractus rule. In Threlkeld v.Worsham,
785 S.W.2d 249 (Ark. App.1990), a lower court applied the better-law approach to a sale contract. More
recently, the Arkansas Supreme Court applied the significant relationship test of Restatement (Second)
188. See Ducharme v.Ducharme, 872 S.W.2d 392 (Ark. 1994); Crisler v.Unum Ins. Co. of America, 233
S.W.3d 658 (Ark 2006); Scottsdale Ins. Co. v.Morrow Land Valley Co., LLC, 411 S.W.3d 184 (Ark. 2012);
Hoosier v.Interinsurance Exch. of Auto. Club, 2014 Ark. 524, 2014 WL 7004724 (2014).
3. Symeonides & Perdue, at 124; Cf. F.K. Juenger, A Third Conflicts Restatement?, 75 Ind. L.J. 403, 403
(2000) ([O]ne finds authors who are at doctrinal loggerheads peacefully united in a single footnote; one
148
To some extent, the separate column called combined modern that appears in Table12
reflects this eclecticism. But that column is reserved only for those states that overtly, knowingly, and repeatedly combine more than one modern methodology. If instances of unknowing, latent, or occasional eclecticism were to be included in that column, it would absorb most
other columns. Indeed, [i]f one had to define the dominant choice-of-law methodology in the
United States today, it would have to be called eclecticism.4
Nevertheless, the cases of the occasional eclecticism are quite numerous. For example, in
Cribb v. Augustyn,5 the Rhode Island Supreme Court described its approach to tort conflicts
as follows:
In this jurisdiction . . . we follow . . . the interest-weighing approach. In so doing, we . . . determine . . . the rights and liabilities of the parties in accordance with the law of the state that bears
the most significant relationship to the event and the parties. . . . That approach has sometimes
been referred to as a rule of choice-influencing considerations.
In applying the interest-weighing or choice-influencing considerations, we consider . . .
[Leflars five choice-influencing considerations and the four factual contacts listed] in Restatement
(Second) Conflict of Laws, 145(2).6
In other words, this court follows a blend of three or perhaps five different approaches:(1)an
interest-weighing approach (which is interest analysis, but is itself combined with the very
weighing of interest that Currie proscribed), (2) the Restatement (Second), and (3) Leflars
choice-influencing considerations. But that is not all:the court further suggested that Rhode
Island follows a common-domicile rule for tort conflicts (perhaps inspired by New Yorks
Neumeier rules), at least when the common domicile is in Rhode Island and the parties have
a preexisting relationship.7 Given this virtually boundless eclecticism, one could be justified in
placing Rhode Island in the combined modern column rather than in the better-law column,
where it has been since1968.
encounters prose so turgid and stilted that one suspects that the judge (more likely the law clerk who
actually drafted the opinion) never really grasped the idea behind the particular conflicts approach the
court purports to follow.).
4. P.J. Kozyris & S. Symeonides, Choice of Law in the American Courts in 1989: An Overview, 38 Am.
J.Comp. L. 601, 602 (1990).
5. 696 A.2d 285 (R.I.1997).
6. Id. at 288 (citations omitted). See also Najarian v. Natl Amusements, Inc., 768 A.2d 1253 (R.I.
2001)(blending choice-influencing considerations with the Restatement (Second)).
7. See Cribb, 696 A.2d at 288: [I]n situations in which the [Restatement 146] factors (a) [place of
injury] and (b) [place of conduct] are the only ones pointing to the law of another state and factors
(c) [parties domicile] and (d) [seat of their relationship] point strongly to applying Rhode Island law,
the latter two factors trump the earlier two, and Rhode Island law is applied. In Taylor v. Mass. Flora
Realty Inc., 840 A.2d 1126 (R.I. 2004), the court added a presumptive lex loci rule, without mentioning
Leflars approach. In Oyola v. Burgos, 864 A.2d 624 (R.I. 2005), the court, again without mentioning
Leflar, described its approach to tort conflicts as an interest-weighing test that seeks to identify the state
with the most significant relationship, id. at 627, by considering four contacts, but with a presumption
in favor of the state of conduct and injury, which may be rebutted by the parties domicile or relationship
within Rhode Island, id. at628.
149
Similarly, in Nodak Mut. Ins. Co. v.American Family Mut. Ins. Co.,8 a case decided by the
Supreme Court of Minnesota, which has followed Leflars better-law approach since 1973, the
court described its approach as the significant contacts test,9 which, however, relies not on
contacts, but on Leflars five choice-influencing factors. But these factors are not really five,
because the first three of them are merely hortatory and, by the courts count, the fifth factor (the better law) has not been employed in nearly twenty years.10 This leaves only one
factorthe [a]dvancement of the forums governmental interest.11 Yet, the court concluded
that it was not the forums interests but the other states interests that needed advancement,12
because [w]hen all other relevant choice-of-law factors favor neither states law, the state where
the accident occurred has the strongest governmental interest.13
Another reason for caution is that certain courts commitment to a particular methodology is half-hearted and thus changeable with the right case. This is true of certain states
that remain in the traditional camp only in name,14 or only in part,15 as well as states that
purport to follow the Restatement (Second). For example, some cases use the Restatement
solely as an escape from a traditional choice-of-law rule that coexists with the Restatement,16
other cases use the Restatement as a camouflage for a grouping-of-contacts approach,17 and
still others use it as a vehicle for merely restraining, but not avoiding interest analysis.18 One
8. 604 N.W.2d 91 (Minn.2000).

9. Id. at 94,96.
10. Id.at96.
11. Id. (emphasis added).
12. The other states law was more favorable to the Minnesota party than was Minnesotalaw.
13. When the losing litigant characterized this statement as a return to the doctrine of lex loci, the court
responded that this court ha[s]rejected lex loci in favor of the significant contacts approach.Id.
15. See, e.g., Ferrell v.Allstate Ins. Co., 188P.3d 1156 (N.M. 2008)(criticizing the first Restatement and
praising the Restatement (Second), but adopting the latter only for multistate contract class actions and
apparently not for other contract conflicts).
16. See, e.g., OConnor v.OConnor, 519 A.2d 13, 21 (Conn. 1986)(adopting the Restatement (Second)
for those cases in which application of the doctrine of lex loci [delicti] would produce an arbitrary, irrational result); Hubbard Mfg. Co. v.Greeson, 515 N.E.2d 1071, 1073 (Ind. 1987)(holding that, when the
place of the tort is an insignificant contact, the court will turn to the significant contactsbut not necessarily the policy analysisof the Restatement (Second)).
17. See, e.g., Palmer G.Lewis Co. v.ARCO Chem. Co., 904P.2d 1221 (Alaska 1995); Powell v.American
Charter Fed. S.& L.Assn, 514 N.W.2d 326 (Neb. 1994); Stockmens Livestock Exch. v.Thompson, 520
N.W.2d 255 (S.D. 1994); Selle v.Pierce, 494 N.W.2d 634 (S.D. 1993); Hataway v.McKinley, 830 S.W.2d 53
(Tenn. 1992); Am. Natl Fire Ins. Co. v.Farmers Ins. Exch., 927P.2d 186 (Utah 1996); Forsman v.Forsman,
779P.2d 218 (Utah1989).
18. See, e.g., Williams v. State Farm Mut. Auto. Ins. Co., 641 A.2d 783 (Conn. 1994); OConnor
v.OConnor, 519 A.2d 13 (Conn. 1986); Esser v.McIntyre, 661 N.E.2d 1138 (Ill. 1996); Nelson v.Hix, 522
N.E.2d 1214 (Ill. 1988); Veasley v.CRST Intl, Inc., 553 N.W.2d 896 (Iowa 1996); Chrysler Corp. v.Skyline
Indus. Servs., Inc., 528 N.W.2d 698 (Mich. 1995); Gilbert Spruance Co. v.Penn. Mfrs. Assn Ins. Co., 629
A.2d 885 (N.J.1993).
150
can find examples of such disparate treatment of the Restatement in the same jurisdiction.19
Finally, some states prefer to use only the general, open-ended, and flexible sections of the
Restatement, such as Sections 145, 187, and especially 6, and avoid using the specific sections
that contain mildly confining presumptive rules.20
C. THE RELATIVE INCONSEQUENCE

OFMETHODOLOGY
The above-mentioned cases are only a few examples of the difficulties and uncertainties encountered in any attempt to draw bright demarcation lines between the various methodological
camps. Even if these uncertainties did not exist, one might have good reason to object to classifying states based on methodology, on the ground that such classifications tend to inflate the
importance of methodology in explaining (or especially in predicting) court decisions. Reality
is much different. As noted elsewhere, of all the factors that may affect the outcome of a conflicts case, the factor that is the most inconsequential is the choice-of-law methodology followed by
the court.21 Indeed, methodology rarely drives judicial decisions. The opposite is closer to the
truth. [T]he result in the case often appears to have dictated the judges choice of law approach
at least as much as the approach itself generated the result.22
For these reasons, one may wonder whether classifications, such as the ones reproduced
above, are more harmful than helpful. This question admits different answers. On balance,
these classifications are helpful, at least as tentative indications of where a particular jurisdiction stands, provided they are used with appropriate caution, keeping in mind the aforementioned caveats. The study of any plurilegal system, especially one as vast as that of the United
States, would be far more difficult, if not impossible, without a modicum of categorization
and sorting out, seeking, and cataloging the common denominators among the various units.
Taxonomy is not an end in itself, but it is a necessary first step in any study of multiple objects.
It is also a medium for seeing the forest for thetrees.
19. Compare Stockmens Livestock Exch. v.Thompson, 520 N.W.2d 255 (S.D. 1994), and Selle v.Pierce,
494 N.W.2d 634 (S.D. 1993), both of which relied more on state contacts than on state interests, with
Chambers v.Dakotah Charter, Inc., 488 N.W.2d 63 (S.D. 1992), which relied more on state interests than
on state contacts.
20. See P.J. Borchers, Courts and the Second Restatement:Some Observations and an Empirical Note, 56
Md. L.Rev. 1232 (1997).
21. S. Symeonides, Choice of Law in the American Courts in 1994:AView from the Trenches, 43 Am.
J.Comp. L. 1, 2 (1995).
22. S.E. Sterk, The Marginal Relevance of Choice of Law Theory, 142 U. Pa. L.Rev. 949, 951 (1994); see
also Sutherland v. Kennington Truck Serv., Ltd., 562 N.W.2d 466, 468 (Mich. 1997) ([I]n practice, all
the modern approaches to conflicts of law are relatively uniform in the results they produce.); Sterk,
supra, at 962 ([C]itation to academic theory has served more as window dressing than as a dispositive factor in deciding choice of law cases.). See also P.J. Borchers, The Choice-of-Law Revolution: An
Empirical Study, 49 Wash. & Lee L.Rev. 357, 358 (1992) ([W]hat courts do, not what they say, is important.); S.A. Wiegand, Fifty Conflict of Laws Restatements:Merging Judicial Discretion and Legislative
Endorsement, 65 La. L. Rev. 1, 21 (2004) (it appears [that] it does not matter too much what modern methodology courts follow.). But see C.A. Whytock, Myth of Mess? International Choice of Law in
Action, 84 N.Y.U. L.Rev. 719 (2009).
151
I I I . T H E R E S TAT EM ENT (S ECOND)

As Table12 indicates, the Restatement (Second) is by far the most popular among the modern
methodologies. Twenty-six of the 42 jurisdictions that abandoned the lex loci delicti rule since
the 1960s have adopted the Restatement (Second),23 and 24 jurisdictions continue to follow the
Restatement to date.24 Twenty-three of the 40 jurisdictions that abandoned the lex loci contractus rule, including seven of the nine that did so in the 1990s, have adopted the Restatement
(Second),25 and 23 continue to follow the Restatement to date.26
23. By 1969, the year of the Restatement (Second)s official promulgation, the states that had adopted the
draft Restatement slightly outnumbered (9 to 8)the states that had adopted other modern approaches.
After 1969, more than twice as many states adopted the Restatement (Second) (17) than adopted other
approaches (8). Five of the 6 states that abandoned the lex loci delicti rule in the 1990s adopted the
Restatement (Second).
24. See Ehredt v.DeHavilland Aircraft Co. of Canada, Ltd., 705P.2d 446 (Alaska 1985)(relying exclusively
on the Second Restatement); Armstrong v.Armstrong, 441P.2d 699 (Alaska 1968)(relying partly on the
Second Restatement); Schwartz v.Schwartz, 447P.2d 254 (Ariz. 1968); First Natl Bank v.Rostek, 514P.2d
314 (Colo. 1973); OConnor v.OConnor, 519 A.2d 13 (Conn. 1986); Travelers Indem. Co. v.Lake, 594
A.2d 38 (Del. 1991); Bishop v. Fla. Specialty Paint Co., 389 So. 2d 999 (Fla. 1980); Johnson v. Pischke,
700 P.2d 19 (Idaho 1985); Ingersoll v. Klein, 262 N.E.2d 593 (Ill. 1970); Fuerste v. Bemis, 156 N.W.2d
831 (Iowa 1968); Beaulieu v.Beaulieu, 265 A.2d 610 (Me. 1970); Collins v.Trius, Inc., 663 A.2d 570 (Me.
1995); Mitchell v. Craft, 211 So. 2d 509 (Miss. 1968); Kennedy v. Dixon, 439 S.W.2d 173 (Mo. 1969);
Phillips v.Gen. Motors Corp., 995P.2d 1002 (Mont. 2000); Crossley v.Pacific Emprs Ins. Co., 251 N.W.2d
383 (Neb. 1977) (relying alternatively on the Second Restatement and the lex loci delicti with the same
result); Harper v.Silva, 399 N.W.2d 826 (Neb. 1987)(interpreting Crossley as having adopted the Second
Restatement); Morgan v.Biro Mfg. Co., 474 N.E.2d 286 (Ohio 1984); Brickner v.Gooden, 525P.2d 632
(Okla. 1974); Chambers v.Dakotah Charter, Inc., 488 N.W2d 63 (S.D. 1992); Hataway v.McKinley, 830
S.W.2d 53 (Tenn. 1992); Gutierrez v.Collins, 583 S.W.2d 312 (Tex. 1979); Forsman v.Forsman, 779P.2d
218 (Utah 1989); Amiot v.Ames, 693 A.2d 675 (Vt. 1997); Johnson v.Spider Staging Corp., 555P.2d 997
(Wash. 1976); Werner v.Werner, 526P.2d 370 (Wash.1974).
25. By 1969, the states that had adopted the draft Restatement were outnumbered 7 to 4 by the states that
had adopted other modern approaches. After 1969, almost twice as many states adopted the Restatement
(Second) (19) than adopted other approaches (10). Seven of the 9 states that abandoned the lex loci contractus rule in the 1990s adopted the Restatement (Second).
26. See Palmer G. Lewis Co. v. ARCO Chem. Co., 904 P.2d 1221 (Alaska 1995) (interpreting Ehredt
v.DeHavilland Aircraft Co. of Canada, Ltd., 705P.2d 446 (Alaska 1985), a case involving a tort conflict,
as having adopted the Second Restatement for contract conflicts as well); Burr v. Renewal Guar. Corp.,
468 P.2d 576 (Ariz. 1970); Wood Bros. Homes, Inc. v. Walker Adjustment Bureau, 601 P.2d 1369 (Colo.
1979); Williams v.State Farm Mut. Auto. Ins. Co., 641 A.2d 783 (Conn. 1994); Oliver B.Cannon & Son, Inc.
v.Dorr-Oliver, Inc., 394 A.2d 1160 (Del. 1978)(relying in part on 188 of the Second Restatement); Rungee
v. Allied Van Lines, Inc., 449 P.2d 378 (Idaho 1968); Joseph L. Wilmotte & Co. v. Rosenman Bros., 258
N.W.2d 317 (Iowa 1977); Lewis v.Am. Family Ins. Group, 555 S.W.2d 579 (Ky. 1977); Baybutt Constr. Corp.
v.Commercial Union Ins. Co., 455 A.2d 914 (Me. 1983); Chrysler Corp. v.Skyline Indus. Servs., Inc., 528
N.W.2d 698 (Mich. 1995); Boardman v.United Servs. Auto. Assn, 470 So. 2d 1024 (Miss. 1985); Spragins
v.Louise Plantation, Inc., 391 So. 2d 97 (Miss. 1980); Fruin-Colnon Corp. v.Mo. Hwy. Transp. Commn, 736
S.W.2d 41 (Mo. 1987); Casarotto v.Lombardi, 886P.2d 931 (Mont. 1994), revd on other grounds, 116 S.Ct.
1652 (1996); Powell v.Am. Charter Fed. S & L Assn, 514 N.W.2d 326 (Neb. 1994)(explicitly adopting the
Second Restatement); Consol. Mut. Ins. Co. v.Radio Foods Corp., 240 A.2d 47 (N.H. 1968); Gries Sports
Enters. v.Modell, 473 N.E.2d 807 (Ohio 1984); Stockmens Livestock Exch. v.Thompson, 520 N.W.2d 255
(S.D. 1994); Duncan v.Cessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984), revd on other grounds, 665 S.W.2d
152
The two lists are not identical, in that a few states have adopted the Restatement (Second) for
torts but not contracts, and vice versa. Florida, Nevada, New Jersey, Oklahoma, and Tennessee
follow the Restatement only in tort conflicts, whereas Kentucky, Michigan, New Hampshire,
and West Virginia follow the Restatement only in contract conflicts. These divided loyalties are
the result of deliberate choice in some instances and the lack of a good opportunity for such a
choice in others.
In addition, on the issue of choice-of-law clauses, many states follow Section 187 of the
Restatement (Second), even if on other issues they follow other approaches, including the traditional approach.27 Moreover, many federal courts follow the Restatement (Second) in federal
question cases.28
Thus, for better or worse, the Restatement (Second) appears to dominate the American
methodological landscape. But, as explained elsewhere,29 this high numerical following does
not necessarily entail a deep-seated commitment to the Restatement. In many cases, the
Restatement simply offers the most convenient, and authoritative-sounding, rationalization
for results that the court would have reached under any other modern methodology.30 The
Restatements relative popularity can be attributed to a variety of reasons (some of which are
not necessarily complimentary), including the following:
(1) Unlike approaches proposed by individual scholars, whose persuasive powers depend
entirely on the inherent soundness of their proposals, the Restatement benefits from
the prestige, as well as the longevity, of the ALI;
(2) In contrast to rival academic approaches, which provide no more than a single, good-
for-all methodology for tort and contract cases, the Restatement is a complete document that covers the entire spectrum of conflicts cases;
439 (Tex. 1984); Am. Natl Fire Ins. Co. v.Farmers Ins. Exch., 927P.2d 186 (Utah 1996); Baffin Land Corp.
v.Monticello Motor Inn, Inc., 425P.2d 623 (Wash. 1967); Pioneer Credit Corp. v.Carden, 245 A.2d 891
(Vt. 1968)(relying in part on 188 of the Second Restatement, but not actually applying it). Later cases
have assumed adoption of the Second Restatement. See, e.g., Amiot v.Ames, 693 A.2d 675, 677 (Vt.1997).
27. See, e.g., Cherry, Bekaert & Holland v. Brown, 582 So. 2d 502 (Ala. 1991) (relying on Restatement
(Second) 187, even though Alabama follows the traditional rules in both contract and tort conflicts);
Natl Glass, Inc. v. J.C. Penney Prop., Inc., 650 A.2d 246 (Md. 1994) (same, with regard to Maryland);
Kronovet v.Lipchin, 415 A.2d 1096 (Md. 1980)(same); SBKC Serv. Corp. v.111 Prospect Partners, L.P.,
1998 WL 436579 (10th Cir. 1998)(same, with regard to Kansas).
28. See, e.g., Schoenberg v.Exportadora de Sal, 930 F.2d 777 (9th Cir. 1991)(Federal common law follows
the approach of the Restatement (Second) of Conflict of Laws); Alvarez-Machain v.United States, 266
F.3d 1045 (9th Cir. 2001)(Federal Tort Claims Act); Wagner v.Islamic Republic of Iran, 172 F.Supp.2d
128 (D.D.C. 2001)(Antiterrorist and Effective Death Penalty Act); Harris v.Polskie Linie Lotnicze, 820
F.2d 1000 (9th Cir. 1987)(Foreign Sovereign Immunities Act); American Home Assurance Co. v.L & L
Marine Serv., Inc., 153 F.3d 616 (8th Cir. 1998)(admiralty jurisdiction); Bickel v.Korean Air Lines Co.,
83 F.3d 127 (6th Cir. 1996)(arising under the Warsaw Convention), superseded on other grounds, 96 F.3d
151 (6th Cir. 1996); In re Lindsay, 59 F.3d 942 (9th Cir. 1995)(bankruptcy proceeding), cert. denied, 116
S.Ct. 778 (1996); Edelmann v.Chase Manhattan Bank, N.A., 861 F.2d 1291 (1st Cir. 1988)(Edge Act);
Corp. Venezolana de Fomento v.Vintero Sales Corp., 629 F.2d 786 (2d Cir. 1980)(same); Aaron Ferer &
Sons v.Chase Manhattan Bank, N.A., 731 F.2d 112 (2d Cir.1984).
56 Md. L.Rev. 1248, 1997, 126163 (explaining the reasons for the Restatements popularity and describing the various gradations of commitment toit).
30. Seeid.
153
(3) In contrast to some rival approaches, which are biased in favor of plaintiffs or the lex
fori, the Restatement is ideologically neutral, even though it does not reduce the possibility of ideologically biased resultsindeed, it provides perfect camouflage forthem;
(4) The Restatement provides judges with virtually unlimited discretion;and
(5) At least as applied by some judges, the Restatement permits sloppy thinking.31
In any event, one must credit the Restatement with facilitating the abandonment of the
traditional rules of lex loci delicti and lex loci contractus and their accompanying artificial
and mechanical logic. It is true that persistent academic attacks had undermined the traditional theory, even before the drafting of the Restatement began (in 1952)and certainly before
its official promulgation (in 1969). However, before 1952, these academic attacks made only
marginal inroads in judicial opinions. From 1952 on, these inroads began to increase and, by
1966, five states abandoned the traditional theory in tort conflicts. Although none of these
states adopted the Restatement, its influence helped move the courts in that direction, as the
Babcock court acknowledged.32 More important, between 1967 and 1969, the years during
which the ALI publicized the Proposed Official Drafts of the Restatement (Second), 11 more
states abandoned the traditional theory and 8 of them adopted these drafts.33 Thus, although it
did not cause the conflicts revolution, the Restatement (Second) was a major contributing factor in the cascading court decisions of the 1960s and 1970s to abandon the traditional theory.
Naturally, whether the decision of these states to adopt the Restatement, rather than other
modern approaches, is a positive development depends on ones opinion of the Restatement.
Nevertheless, one positive contribution of the Restatement is that it has helped avoid polarization among American courts, and it has laid the foundation for a new synthesis out of competing choice-of-law theories. Contrary to the First Restatements rigidity and dogmatism, which
caused the revolution, the Second Restatements lack of dogmatism and its flexible and compromissory content helped spawn a benign, albeit uncertain, evolution. Had the Restatement
(Second) aspired for ideological purity, rather than philosophical pluralism, it would have
pleased a few of its academic critics, but it would have been far less attractive to judges. Its
adherents would have been more devoted, but fewer in number, and the polarization among
American courts would have been inevitable.
To date, this polarization has been avoided. As the majority of American courts abandoned
the old dogma, they did not move in a single direction, but they proceeded in parallel and, in
their view, fungible directions, including the Restatement (Second). Unlike academics, who
focus on the differences between these directions, judges tend to overlook or ignore the differences and merge competing approaches. Although academic critics tend to vilify this eclecticism, it is a fact of life. One can continue to decry this phenomenon, or one can exploit its
positive aspects. Perhaps this eclecticism can become the basis for a productive synthesis of the
31. Cf. F.K. Juenger, A Third Conflicts Restatement?, 75 Ind. L.J. 403, 410 (2000) (The Second
Restatement, vague and unprincipled as it was, had the distinct virtue of suggesting to judges that they
are not bound by any hard and fast rules . Its eclectic jumble of near rules [and] nonrules
furnished courts with any number of plausible reasons to support whatever results they wished to reach.
That, no doubt, is the principal reason why judges like it and academics detestit.).
32. See Babcock, 12 N.Y.2d at 479 (relying in part on the Restatement (Second) (Tentative Draft) (1960)).
33. See supra 130. These states were: Kentucky, Oregon, and the District of Columbia in 1967; Alaska,
Arizona, Idaho, and Mississippi in 1968; and Missouri in 1969. The first three states later abandoned the
Restatement in favor of other approaches.
154
American conflicts experience and help lay the ground for the new Restatement, the drafting
of which, though long overdue, is scheduled to begin in 2015.34
IV. SI G N I F I C A N T-C O N TA CT S A PPR OA CHES

The approach known as significant-contacts, grouping of contacts, or center of gravity is
followed by three jurisdictions in tort conflicts35 and by five in contract conflicts.36 The above-
quoted terms are interchangeable and indicative of this approachs reliance on physical contacts, rather than on state policies or interests. The state that has the most significant contacts
is the center of gravity of the dispute, and thus its law governs, essentially regardless of its
content or underlying policy.
When this approach first appeared in the 1950s,37 it represented a hopeful step in the right
direction. By abandoning the traditional systems reliance on a single connecting factor, and
relying instead on multiple contacts, this approach opened the door to new and promising
ways of thinking and began the transition from the traditional system to modern approaches.
However, some states have chosen not to complete this transition, not even by switching to the
Restatement (Second), which, although itself a transitional document, was the next logicalstep.
One of the differences between these two approaches is that, although they both tend to
consider the same contacts, the Restatement also requires a policy analysis, by providing that
the contacts must be evaluated in light of the policies of 6, which include the policies of the
contact states, as well as multistate policies. In contrast, the significant-contacts approach does
not require, and according to some courts does not even contemplate, examination of these
policies, confining itself to a comparison of contacts alone. More troublesome still, it is rarely
clear whether the court is looking for the most contacts or rather the most significant contacts.
The comparison is supposed to be qualitative, rather than quantitative, but, even assuming that
this is a meaningful exercise, few courts discharge it convincingly.
The Supreme Court of Indiana, the first state to adopt the significant-contacts approach, reiterated its adherence to it 60y years later, and also explained its differences from the Restatement
(Second). In Simon v. United States,38 the court recited academic commentary criticizing the
Restatement as a hodgepodge of all theories and a kitchen-sink concoction,39 and, as if this
were an example of superiority, it self-assuredly proclaimed that, unlike the Restatement, the
34. See infra 693.
35. See Hubbard Mfg. Co., Inc. v.Greeson, 515 N.E.2d 1071 (Ind. 1987); Issendorf v.Olson, 194 N.W.2d
750 (N.D. 1972); Widow of Fornaris v.Am. Sur. Co., 93P.R.R. 28 (Puerto Rico1966).
36. See Standard Leasing Corp. v. Schmidt Aviation, Inc., 576 S.W.2d 181 (Ark. 1979); McMillen
v.Winona Natl & Savings Bank, 648 S.W.2d 460 (Ark. 1983); W.H. Barber Co. v.Hughes, 63 N.E.2d 417
(Ind. 1945); Hermanson v.Hermanson, 887P.2d 1241 (Nev. 1994); Boudreau v.Baughman, 368 S.E.2d
849 (N.C. 1988); Maryland Cas. Co. v.San Juan Racing Assn, 83P.R.R. 538 (Puerto Rico 1961); Green
Giant Co. v.Tribunal Superior, 104P.R.Dec. 489 (Puerto Rico 1975). For NewYorks partial use of this
approach, see infra 16263.
37. The first case to employ this approach was W.H. Barber Co. v.Hughes, 63 N.E.2d 417, 423 (Ind. 1945),
but Auten v.Auten, 124 N.E.2d 99 (N.Y. 1954), is the case that brought it to prominence.
38. 805 N.E.2d 798 (Ind. 2004). For an extensive discussion of Simon, see S. Symeonides, Issue-by-Issue
Analysis and Dpeage in Choice of Law:Cause and Effect, 45 U. Toledo L.Rev. 751, 76472 (2014).
39. Simon, 805 N.E.2d at804.
155
Indiana approach does not contemplate an examination of the policies underlying the conflicting laws. Identifying and weighing policies is a difficult and ultimately speculative task, said
the court, whereas it is much easierand presumably less speculativeto simply look at the
contacts that exist between the action and the relevant states and determine which state has the
most significant relationship with the action.40
However, the better question is whether weighing the contacts of a state without examining
its policies is a meaningful task at all. Without such an examination, one cannot know whether
that state is most intimately concerned,41 or indeed concerned at all, even if it otherwise has the
most significant contacts (whatever that means). In the abstract, a contact does not have independent significance, which a court can compare with the significance of another contact. As the
NewYork Court of Appeals noted, contacts obtain significance, depending on the laws of the
contact states and their underlying policies.42 Thus, one cannot reliably evaluate the significance
of contacts without, at the same time, considering the content of the laws of the contact states.43
V. N E W Y OR K
A. TORT CONFLICTS
1. Neumeier
In the years following Babcock v.Jackson, NewYork courts encountered several guest statute
conflicts, which they resolved in a less-than-consistent manner.44 In an effort to ensure consistency, the NewYork Court of Appeals, in the 1973 case of Neumeier v.Kuehner,45 took the bold
step of pronouncing, in a quasi-legislative fashion,46 a new set of choice-of-law rules for guest-
statute conflicts. These rules provide as follows:
[Rule1]. When the guest-passenger and the host-driver are domiciled in the same state, and the
car is registered there, the law of that state should control and determine the standard of care
which the host owes to his guest.
[Rule 2a]. When the drivers conduct occurred in the state of his domicile and that state does
not cast him in liability for that conduct, he should not be held liable by reason of the fact that
liability would be imposed upon him under the tort law of the state of the victims domicile.
[Rule 2b]. Conversely, when the guest was injured in the state of his own domicile and its law
40. Id. at803.
41. Auten v.Auten, 124 N.E.2d 99, 101 (N.Y.1954).
42. Miller v.Miller, 237 N.E.2d 877, 879 (N.Y. 1968)([T]he facts or contacts which obtain significance
in defining State interests are those which relate to the purpose of the particular law in conflict.).
43. For a discussion of this point, see Symeonides & Perdue, Conflict of Laws 14647.
44. See Dym v. Gordon, 209 N.E.2d 792 (N.Y. 1965); Macey v. Rozbicki, 221 N.E.2d 380 (N.Y. 1966);
Tooker v.Lopez, 249 N.E.2d 394 (N.Y.1969).
45. 286 N.E.2d 454 (N.Y. 1972), appeal after remand 43 A.D.2d 109, 349 N.Y.S.2d 866 (1973).
46. Indeed, only some parts of the Neumeier rules were grounded on previous NewYork precedents. For
example, part of Rule 1 derived from Babcock, Macey and Tooker, supra, at note 44, but the other part
(common domicile in a guest-statute state and accident in a recovery state), as well as Rule 2, did not
derive from any pre-Neumeier precedent.
156

permits recovery, the driver who has come into that state should notin the absence of special
circumstancesbe permitted to interpose the law of his state as a defense.
[Rule3]. In other situations, when the passenger and the driver are domiciled in different states,
the rule is necessarily less categorical. Normally, the applicable rule of decision will be that of
the state where the accident occurred but not if it can be shown that displacing the normally
applicable rule will advance the relevant substantive law purposes without impairing the smooth
workings of the multi-state system or producing great uncertainty for litigants.47
Like the Babcock case, Neumeier arose out of a single-car accident in Ontario, Canada,
involving a NewYork host-driver and a car insured and garaged in NewYork. The difference
was that in Neumeier the guest-passenger was an Ontario domiciliary. Because of this difference, Rule 1 was inapplicable and the case fell within the scope of Rule 3, which calls for the
application of Ontario law, subject to the escape clause provided in the rule. The court refused
to apply the escape, reasoning that to displace the lex loci would not advance NewYorks substantive law purposes, and it would impair the smooth functioning of the multistate system by
sanctioning forum shopping.
2. Schultz
The next major case was Schultz v. Boy Scouts of America, Inc.48 Schultz involved a fact pattern that was the reverse of Babcock. The plaintiffs and one of the defendants (the Boy Scouts)
were domiciled in New Jersey, the law of which accorded the Boy Scouts charitable immunity,49 whereas the injury was deemed to have occurred in New York, which did not accord
such immunity. The court characterized the immunity rules as loss-distributing, rather than as
conduct-regulating,50 and it concluded that the law of the parties common domicile should govern this conflict. The court reasoned that application of the law of the parties common domicile
reduces forum-shopping opportunities , rebuts charges that the forum-locus is biased in favor
of its own law , [furthers] mutuality and reciprocity [through] consistent application of the
common-domicile law [and] produces a rule that is easy to apply and brings a modicum of predictability and certainty to an area of the law needing both.51
47. Neumeier, 286 N.E.2d at 45758.

48. 480 N.E.2d 679 (N.Y.1985).
49. By the time of the trial, Boy Scouts had moved its domicile to Texas, the law of which denied charitable immunity. The court ignored the post-event change of domicile and treated Boy Scouts as a New
Jersey domiciliary, noting that the change of domicile provides NewYork with no greater interest in this
action than it would have without the change. Schultz, 480 N.E.2d at 682. Thus, the court treated the
problem as involving a choice between the laws of NewYork and New Jersey.
50. In his dissent, Justice Jasen agreed with the courts characterization of New Jerseys immunity rule
as loss-distributing, but he concluded that New Yorks no-immunity rule was conduct-regulating. In
P.V. v. Camp Jayce, 962 A.2d 453 (N.J. 2008), which involved a conflict between the same New Jersey
immunity rule and Pennsylvanias no-immunity rule, the New Jersey Supreme Court characterized the
Pennsylvania rule as conduct-regulating and held it applicable in a case arising from a Pennsylvania tort
involving New Jersey parties.
51. Schultz, 480 N.E.2d at687.
157
Thus, Schultz confirmed the applicability of the first Neumeier rule to cases of the reverse-
Babcock-pattern, which, as we shall see later, are more difficult than the Babcock-patterncases.
The second defendant, the Franciscan Brothers, had its domicile in Ohio, the law of which
denied charitable immunity in actions based on negligent hiring. Because the parties were
domiciled in different states, Neumeier Rule 1 was inapplicable. Rule 2 was also inapplicable,
because neither party was domiciled in a state whose law favored that party. Thus, this case fell
within the residual provisions of Rule 3, which calls for the application of the law of the state
where the accident occurred, subject to the escape clause contained in that rule. The court
chose to apply the escape, displacing the lex loci in favor of New Jersey law. The court reasoned
that application of the law of New Jersey would further that States interest in enforcing the
decision of its domiciliaries to accept the burdens as well as the benefits of that States loss-
distributing tort rules and its interest in promoting the continuation and expansion of defendants charitable activities in that State.52
Although the substantive fairness of the Schultz result is open to intense debate,53 Schultz
is important from a methodological perspective, for at least two reasons. First, it reaffirmed
and solidified the Babcock distinction between conduct-regulating rules and loss-distributing
rules.54 Second, it expanded the scope of the Neumeier rules to encompass conflicts between
loss-distribution rules other than the now-obsolete guest statutes.
The latter development, however, created some new technical problems, arising from the
fact that the Neumeier rules did not differentiate between the place of injurious conduct and
the place of the resulting injury. Indeed, such differentiation was unnecessary, because the
Neumeier rules were devised for guest-statute conflicts in which the drivers conduct and the
guests injury coincide in the same state. Thus, when the first sentence of Neumeier Rule 2
(hereafter Rule 2a) speaks of the drivers conduct, it presupposes that any injury resulting
from that conduct will also occur in the same state. Likewise, when the second sentence of the
same rule (hereafter Rule 2b) speaks of a guest [being] injured in the state of his own domicile, it assumes that the injury is the result of the host-drivers conduct and that this conduct
also must have occurred in the same state. These assumptions are both natural and logical.
However, in many other torts, the conduct may occur in one state and the injury in another.
By extending the scope of the Neumeier rules beyond guest-statute conflicts, the Schultz court
made the rules applicable to cross-border torts. Besides other complications, these cases also
raise the old question of localizing the tort. Depending on which side of the border one
places the locus of the tort determines which of the Neumeier rules is applicable, and ultimately the outcome of the case. Unfortunately, the Schultz court did not elaborate on this question, apparently because the answer would not have affected the outcome in that case.55 But in
52. Id.
53. See, e.g., P. Borchers, Conflicts Pragmatism, 56 Alb. L. Rev. 883, 90911 (1993); G. Simson, The
Neumeier-Schultz Rules:How Logical a Next State in the Evolution of the Law after Babcock?, 56 Alb.
L.Rev. 913 (1993); S. Symeonides, Resolving Six Celebrated Conflicts Cases through Statutory Choice-
of-Law Rules, 48 Mercer L.Rev. 837, 84758 (1997) (discussing how Schultz could be decided under the
Louisiana codification).
54. The importance of this distinction, both for NewYork and American conflicts law, is discussed, infra,
at 177 et seq.
55. Schultz involved tortious acts that occurred in two states, NewYork and New Jersey, and produced
injuries in both of those states, but primarily in New Jersey. Rather than discussing the problem such
158
other cross-border torts decided under the Neumeier rules, the failure to differentiate between
the places of conduct and injury may well affect the outcome, because, as noted earlier, such
failure creates an internal conflict between Rules 2a and2b.
This conflict appears in split-domicile cross-border torts in which the victim is injured in her
home state (whose law protects her) by the tortfeasors conduct in his home state (whose law protects him). If the place of conduct is deemed to be the locus of the tort, the case is covered by
Rule 2a, which calls for the application of the law that protects the defendant. But if the place of the
injury is deemed to be the locus of the tort, the case is covered by Rule 2b, which, in the absence
of special circumstances, calls for the application of the law that protects the plaintiff. Similarly, if,
in the same case, the conduct occurred in a third state, a conflict arises between Rule 2b and Rule
3.Again, if the locus of the tort is deemed to be in the state of injury and the victims domicile,
then Rule 2b applies and protects the victim. If the locus of the tort is deemed to be in the state of
conduct, then Rule 2b becomes inapplicable. The case then falls within the residual Rule 3, which,
subject to the escape clause, calls for the application of the law of the locus of the tort.56
3. Cooney
Eight years after Schultz, the localization problem reappeared in Cooney v.Osgood Machinery,
Inc.,57 a cross-border tort in which the disputants were joint tortfeasors domiciled in different
states, with each states law favoring that states domiciliary.58 The court reiterated the Babcock-
Schultz distinction between conduct-regulating and loss-allocating rules, classified contribution rules into the latter category, and reaffirmed the applicability of the Neumeier rules to
cross-border torts might present to the application of the Neumeier rules, the Schultz court designated
one of the two states, NewYork, as the locus of the tort. This designation did not affect which of the
Neumeier rules was applicable to the case. It simply provided plaintiffs with a fighting chance to argue
for the application of NewYork law. With regard to defendant Boy Scouts, a determination that the tort
had occurred in New Jersey, rather than NewYork, would have made the case a false conflict that would
be governed by New Jersey law, because both parties were domiciled there. With regard to defendant
Franciscan Brothers, a determination that the tort had occurred in New Jersey, again, would have led to
the application of New Jersey law under Neumeier Rule 3, rather than under the escape clause from that
rule, as had occurred in the actualcase.
56.In Bankers Trust Co. v.Lee Keeling & Assocs., Inc., 20 F.3d 1092 (10th Cir.1994), which involved conduct in Oklahoma by an Oklahoma defendant, and injury in NewYork to a NewYork plaintiff, the court
assumed that the locus of the tort, as used in Schultz, is synonymous with the place of the injury, and
that the injury is deemed to occur at the place where the last event necessary to make the actor liable
occurred. Id. at 1097. Although a superficial reading of Schultz may support these assumptions, the fact
is that the Schultz court treated NewYork as the locus of the tort, although most of the injuries, including
the last and fatal one, had occurred in New Jersey.
57. 612 N.E.2d 277 (N.Y.1993).
58. Cooney arose out of an employment accident in Missouri in which a Missouri employee of a Missouri
employer was injured by a machine owned by the latter. The employer bought the machine from a
NewYork company that, 10years earlier, had bought the machine from its manufacturer through defendant, a NewYork sales agent. The employee received workers compensation through his employer under
Missouri law, and then brought a product liability action in NewYork against the sales agent, who then
third-partied the employer, seeking contribution. Only this third-party action was at stake in Cooney.
The Missouri employer would be liable for contribution under NewYork law, but not under Missourilaw.
159
loss-allocating conflicts other than guest-statute conflicts. The court found that the case presented a true conflict in the mold of Neumeiers second rule,59 and concluded that [u]nder that
rule, the place of injury governs.60 This conclusory statement suggests that either the court did
not recognize that, in cross-border torts, the two sentences of that rule conflict with each other,
or it chose to resolve this conflict by arbitrarily opting for the state of injury. Even with this
simplification, however, the second Neumeier rule could not easily resolve the Cooney conflict,
because it involved a dispute between joint tortfeasors, and it was unclear which tortfeasors
conduct injured the other, and in which state.61
Indeed, without further refinement or modification, the Neumeier rules are ill-suited for
cross-border torts, or for cases in which the dispute is not between the injured victim and the
tortfeasor, but rather between joint tortfeasors.62 The Cooney court may have recognized this
deficiency, because it proceeded to resolve the conflict under a full-fledged policy analysis.
After finding that the interests of the two states were irreconcilable, the court concluded that
the place of the injury tips the balance,63 and that the application of the law of the state of
injury is consistent with the result reached historically, and reflects application of a neutral
factor that favors neither the forums law nor its domiciliaries.64
The problem was that, by the courts own admission: the New York party, Osgood, did
nothing to affiliate itself with Missouri and may not have reasonably anticipated becoming
embroiled in litigation with a Missouri employer.65 Once again, this recognition is a reminder
that this case did not quite fit in the mold of Neumeier Rule 2, which was designed only for
cases in which both parties associate themselves with the same state.66
59. Id. at 283 (emphasis added). The words in the mold of may signify the courts understanding
that the case did not fall precisely within the scope of Rule 2first, because the conduct and the injury
occurred in different states and, second, because the dispute was one between joint tortfeasors, rather
than between a victim and a tortfeasor. See infra attext.
60. Id.
61. For an extensive discussion of these difficulties, see Symeonides, Choice-of-Law Revolution 10914.
62. The Louisiana codification avoids both of these pitfalls. The pertinent article (La. Civ. Code Ann. Art.
3544), which, like the Neumeier rules, applies to conflicts between loss-distribution rules, differentiates
between cases in which the conduct and the injury occurred in different states. Furthermore, the article
is confined to disputes between a person injured by an offense or quasi-offense and the person who
caused the injury. Disputes between joint tortfeasors, or between a tortfeasor and a person vicariously
liable for his acts, are relegated to the flexible choice-of-law approach of Article 3542, the residual article.
For an explanation of the rationale of these two features by the codifications drafter, see S. Symeonides,
Louisianas New Law of Choice of Law for Tort Conflicts:An Exegesis, 66 Tul. L.Rev. 677, 71531 (1992).
The Oregon codification follows the same approach. See infra, at 20102.
63. Cooney, 612 N.E.2d at283.
64. Id.
65. Id.
66. Nevertheless, the court offered another, ostensibly independent, reason for applying Missouri law
the protection of reasonable expectations. Id. The court reasoned that, although Osgood may not have
reasonably anticipated the application of Missouri law, Osgood also had no reasonable expectation that
contribution would be available to it, because, at the time of the sale, NewYork law did not provide for
such contribution. By contrast, said the court, [i]n view of the unambiguous [Missouri] statutory language barring third-party liability Mueller could hardly have expected to be haled before a NewYork
court to respond in damages for an accident to a Missouri employee at the Missouri plant. Id. at 284.
160
The Cooney court also thought it necessary to address Osgoods contention that the application of Missouri law offended New Yorks public policy. The court reiterated Cardozos
classic test for the ordre public exception,67 and eventually it concluded that the application
of Missouris contribution law was not repugnant to New Yorks public policy. The reaffirmation of Cardozos test was a positive development, especially in light of the abuse that
test suffered in the hands of the same court in Kilberg.68 The ordre public exception remains
necessary in cases subject to the first Neumeier rule, or any other rule that does not contain
an escape clause. But the fact that both the second and third Neumeier rules contain built-in
escapes,69 which are capable of directly repelling an obnoxious foreign law, should obviate
the need for an additional ordre public inquiry for those cases that are disposed of under
those rules.70
4.SubsequentCases
Gilbert v.Seton Hall University71 was similar to Schultz v.Franciscans, but the court treated it
as analogous to Schultz v. Boy Scouts. Gilbert involved a New Jersey defendant (Seton Hall),
protected by New Jerseys charitable immunity rule, and an injury in New York, a state that
abolished charitable immunity. The difference was that, in Gilbert, the plaintiff was domiciled
not in New Jersey, but in Connecticut (which also abolished charitable immunity), although he
was a student at the defendants New Jersey campus.72
The court noted that the case fell within the scope of Neumeier Rule 3, which presumptively points to NewYork law. However, barely mentioning Rule 3 again, the court proceeded
to a full-fledged interest analysis, concluding that New Jersey law should govern, because New
Jersey had a strong interest in applying its law, and NewYork had no countervailing interest.
Despite the plaintiff s Connecticut domicile, the court treated the plaintiff s decision to attend
college in New Jersey as equivalent to a New Jersey domicile. This made the case virtually
identical to Schultz v. Boy Scouts, which, under Neumeier Rule 1, would be governed by the
law of the parties common domicile. The court reasoned that the plaintiff benefitted from the
Thus, the court concluded that Missouri law should apply, because although the interests of the respective jurisdictions are irreconcilable, the accident occurred in Missouri, and unavailability of contribution would more closely comport with the reasonable expectations of both parties in conducting their
business affairs. Id. By the same token, given the state of the law in 1958 when the machine was sold,
Osgood could argue that mere sales agents could not have expected to be subject to strict liability for their
involvement in thesale.
67. Loucks v.Standard Oil Co., 224 N.Y. 99, 111 (1918).
68. See Kilberg v.Ne. Airlines, Inc., 172 NE 2d 526 (NY 1961). Cooney did not even mention Kilberg.
69. Rule 2b contains a proviso allowing the showing or absence of special circumstances, whereas Rule
3 is merely a presumptiverule.
70. Afortiori, this is true for cases handled under ad hoc, freewheeling analyses, such as interest analysis.
As Brainerd Currie put it, interest analysis summon[s]public policy from the reserves and place[s] it in
the front lines where it belongs. Currie, Selected Essays88.
71. 332 F.3d 105 (2d Cir. 2003)(decided under NewYork conflictslaw).
72. The plaintiff was a member of a rugby team consisting of and organized by Seton Hall students. He
sued Seton Hall for negligent supervision of a rugby game held in New York, in which he suffered an
injury that rendered him paraplegic.
161
charitable immunity law of New Jersey by virtue of his voluntary decision to attend a university
in that state, and thus New Jersey ha[d]a strong interest in having him bear a related burden.73 Conversely, Connecticuts interest in according [plaintiff] the benefits of its charitable
[non-]immunity policy is reduced because he has avoided the policys concomitant burden of paying the increased fees that a Connecticut institution, subject to negligence liability,
must charge.74 The plaintiff invoked a lower court case that held that one rebuts the lex loci
presumption of Rule 3 by showing that the non-application of the lex loci would advance the
policies of all other involved statesnot just one. The court replied that [n]othing in Schultz
evidences so numerical an approach,75 and it pointed out that Schultz applied New Jerseys
charitable immunity rule, even though both other involved states (NewYork and Ohio) had a
non-immunity rule.76
Edwards v.Erie Coach Lines Co.77 involved a tri-state pattern similar to Schultz v.Franciscans.
An Ontario bus carrying the members of an Ontario hockey team collided in NewYork with
a Pennsylvania tractor-trailer parked on the shoulder of the road. The collision caused injuries and deaths to the bus passengers.78 The law of Ontario, but not New York, limited the
amount of non-economic damages to $310,000. The Pennsylvania defendants did not invoke
Pennsylvania law. The intermediate court held that Ontario law governed both (1)the action
against the bus defendants, under the first Neumeier rule; and (2)the action against the trailer
defendants, under the escape clause from the third Neumeierrule.
The NewYork Court of Appeals affirmed the judgment with regard to the bus defendants,
but held that NewYork law should govern the action against the trailer defendants, under the
main part of the third Neumeier rule. The court reasoned that the trailer defendants failure to
invoke Pennsylvania law did not permit them to take advantage of the Ontario cap,79 and it
rejected their argument that their position was identical to that of the Franciscan Brothers in
Schultz. The court noted that, [w]hile NewYork employs interest analysis rather than grouping of contacts, the number and intensity of contacts is relevant when considering whether to
73. Gilbert, 332 F.3d at110.

74. Id.
75. Id. at112.
76. Judge (later Justice) Sotomayor filed a dissent, noting that Rule 3 seemed to require something
other than (and different from) general interest balancing, which the Neumeier rules were intended
to replace. Id. at 114, 115. It requires that the policies of all relevant states must be advanced before
we can displace the lex loci delicti. Id. at 114. The test is not which state among the three has the greatest interest in applying its law [but] rather whether each states interest would be advanced (or not
hindered) by application of a law other than the lex loci delicti. Id. Sotomayor concluded that this case
did not meet this test, because Connecticuts interests would be hindered by the application of New
Jersey law.Id.
77. 952 N.E.2d 1033 (N.Y.2011).
78. The parties stipulated that the bus defendants and the trailer defendants were 90percent and 10percent at fault, respectively. Id. at1046.
79. Edwards, 952 N.E.2d at 1044. See also id. (noting that the stipulation regarding the percentages of
fault was not relevant to interest analysis, which seeks to recognize and respect the policy interests of a
jurisdiction in the resolution of the particular issue.).
162
deviate from lex loci delicti under the third Neumeier rule,80 and that New Jerseys contacts in
Schultz v.Franciscans were significant enough to justify such a deviation. By contrast, in this case:
there was no cause to contemplate a jurisdiction other than NewYork, the place where the conduct
causing injuries and the injuries themselves occurred. The trailer defendants did not ask [the trial
court] to consider the law of their domicile, Pennsylvania, and they had no contacts whatsoever with
Ontario other than the happenstance that plaintiffs and the bus defendants were domiciled there.81
The dissent characterized the result as patently absurd, because the trailer defendants
could end up paying more than the bus defendants, who were protected by Ontarios cap on
non-economic damages.82
B. CONTRACT CONFLICTS
As noted earlier, in the 1954 case Auten v.Auten,83 the NewYork Court of Appeals abandoned
the traditional lex loci contractus rule and adopted the center of gravity approach for resolving contract conflicts. Since then, the court has moved to a full-fledged policy analysis (if not
interest analysis), relying more on policies and less on contacts.
However, in the 1993 case In re Allstate Ins. Co. v.Stolarz,84 involving the interpretation of
an insurance contract, the court made a partial return to the center-of-gravity approach. After
stating that interest analysis is the courts preferred analytical tool in tort cases,85 because in
a typical tort case strong governmental interests may underlie the choice of law issue,86 the
court stated the following:
By contrast, contract cases often involve only the private economic interests of the parties, and
analysis of the public policy underlying the conflicting contract laws may be inappropriate to
resolution of the dispute. It may even be difficult to identify the competing policies at stake,
because the laws may differ only slightly. The center of gravity or grouping of contacts
choice of law theory applied in contract cases enables the court to identify which law to apply
without entering into the difficult, and sometimes inappropriate, policy thicket.87
80. Id.
81. Id.
82. Id. at 1046 (Ciparick, J., dissenting in part). To avoid such a result, the dissent would apply a single
Neumeier analysis, and it would apply NewYork law to all defendants, under the third Neumeier rule, for
purposes of uniformity and predictability. Id. at 1044. The third rule was applicable, the dissent reasoned,
because plaintiffs and defendants are differently domiciled, and there was no reason why the rule should
not be applied to situations, such as here, where there are multiple jointly and severally liable defendants. Id.
at 1046. The dissent distinguished Schultz v.Franciscans on the ground that, in Edwards, the causes of action
arise from a single incident in NewYork and the liability of the defendants is interrelated. Id. at1045.
83. 124 N.E.2d 99 (N.Y.1954).
84. 613 N.E.2d 936 (N.Y.1993).
85. Id. at938.
86. Id. at939.
87. Id.
163
This statement, coupled with other statements in Stolarz, suggests a dichotomy in the
courts approach to contract conflicts. Interest analysis remains the preferred approach when
the policies underlying conflicting laws are readily identifiable and reflect strong governmental interests. However, center of gravity is the preferred approach when the policies are
not readily identifiable, when the policies do not reflect strong governmental interests, or when
they involve only the private economic interest of the parties.
VI . C U R R I E -B A SED A PPR OA CHES

In reviewing Table 12, supra 14647, most readers will be surprised to see that it lists only
two jurisdictions as following Brainerd Curries governmental interest analysisCalifornia and
the District of Columbia. Indeed, even at the height of the revolution, interest analysis had
relatively little judicial following. Although Currie was the chief protagonist of the choice-of-
law revolution, his contribution consisted mostly in debunking the old system and introducing a new way of thinking about conflicts, rather than in persuading courts to adopt his own
approach to conflict resolution. In the first two decades of the revolution, five jurisdictions
followed interest analysis in tort conflicts (California, the District of Columbia, New Jersey,
Pennsylvania, and Wisconsin88) and three jurisdictions did so in contract conflicts (California,
the District of Columbia, and Oregon).89
Today, with all benefit of the doubt, only two jurisdictions arguably follow interest analysis
in tort conflicts, and none does so in contract conflicts. In tort conflicts, New Jersey abandoned
interest analysis in favor of the Restatement (Second),90 Pennsylvania switched to a mixed
approach,91 and Wisconsin switched to Leflars better-law approach.92 In contract conflicts,
California,93 the District of Columbia,94 and Oregon95 abandoned interest analysis in favor a
mixed approach. In fact, a more literal classification might place even the two remaining jurisdictions elsewhere, insofar as they engage in the very weighing of state interests that Currie
88. See Reich v.Purcell, 432P.2d 727 (Cal. 1967); Williams v.Williams, 390 A.2d 4 (D.C. 1978); Mellk
v.Sarahson, 229 A.2d 625 (N.J. 1967); Griffith v.United Air Lines, Inc., 203 A.2d 796 (Pa. 1964); Wilcox
v.Wilcox, 133 N.W.2d 408 (Wis. 1965). This number would rise to six if one includes Babcock v.Jackson,
191 N.E.2d 279 (N.Y. 1963), which adopted a mix of policy analysis and center of gravity.
89. See Travelers Ins. Co. v.Workmens Comp. Appeals Bd., 434P.2d 992 (Cal. 1967); McCrossin v.Hicks
Chevrolet, Inc., 248 A.2d 917 (D.C. 1969); Lilienthal v.Kaufman, 395P.2d 543 (Or.1964).
90. See P.V.v.Camp Jaycee, 962 A.2d 453 (N.J.2008).
91. See, e.g., Cipolla v. Shaposka, 267 A.2d 854 (Pa. 1970) (Cavers); Miller v. Gay, 470 A.2d 1353 (Pa.
1984)(interest analysis and Restatement (Second)).
92. See, e.g., Heath v.Zellmer, 151 N.W.2d 664 (Wis. 1967); Lichter v.Fritsch, 252 N.W.2d 360 (Wis.1977).
93. See Nedlloyd Lines B.V. v. Superior Court, 834 P.2d 1148 (Cal. 1992); Washington Mutual Bank
v.Superior Court, 15P.3d 1071 (Cal. 2001); Frontier Oil Corp. v.RLI Ins. Co., 63 Cal. Rptr. 3d 816 (Cal.
App.2007), review denied (Nov. 14,2007).
94. See Dist. of Columbia Ins. Guar. Assn v. Algernon Blair, Inc. 565 A.2d 564 (D.C. 1989) (applying
interest analysis, but also relying on the Restatement (Second)); Owen v.Owen, 427 A.2d 933, 937 (D.C.
1981)(applying a mixed approach, described as a search for the more substantial interest, but reduced
to contact counting).
95. See the Oregon statute for contract conflicts, infra 68890.
164
proscribed. The District of Columbia weighs state interests openly and unapologetically,96
whereas California prefers to weigh not the interests themselves, but rather the impairment
that would result from subordinating them.97 Thus, a more technical classification might move
these states to different columns, leaving completely blank the interest-analysis column.
However, this should not suggest that Curries influence has disappeared. First, an interest
analysis traceable to Currie forms the core of most of the combined modern approaches followed in other states. Second, interest analysis is often heavily employed in states that follow
the Restatement (Second), especially in cases in which the factual contacts are evenly divided
between the involved states.98 Thus, in the same manner that the high numerical following
of the Restatement (Second) tends to inflate its importance in deciding actual cases, the low
numerical following of Curries original approach tends to undervalue the importance of his
approach in influencing judicial decisions.
Be that as it may, the District of Columbia and California remain closer to the core of
Curries approach than all other states that follow a modern methodology. Similarly, for entirely
different reasons, two other states that follow the lex fori approachKentucky and Michigan
are also in the close periphery of Curries camp. Although they do not overtly speak in terms
of interests, these states are statistically, if not ideologically, in tune with Curries approach
because they tend to produce the very results he advocated for in the majority of casesthe
application of the lexfori.
A. MODIFIED INTEREST ANALYSIS

Although California and the District of Columbia remain close to Curries original analysis, in
the sense that they resolve conflicts on the basis of state interests, neither jurisdiction appears
constrained by Curries proscription of interest-weighing, and both jurisdictions appear to
have emancipated themselves from his parochial reading of such interests. Besides California,
which, as explained later, officially compares the impairment of state interests, New Jersey
repeatedly engaged in overt interest-weighing before abandoning interest analysis in favor of
the Restatement (Second) in 2008.99
A good example of both interest-weighing and a non-parochial one is Eger v.E.I. Du Pont
De Nemours Co.,100 a tort and workers compensation case. Eger was a true conflict between the
laws of New Jersey, the forum state, and South Carolina. New Jersey law favored the injured
employee, who was domiciled and hired in New Jersey, whereas South Carolina law favored a
defendant employer operating in South Carolina.101 Without the slightest hesitation, the New
96. See, e.g., Kaiser-Georgetown Comm. Health Plan, Inc. v.Stutsman, 491 A.2d 502 (D.C.1985).
97. See Bernhard v.Harrahs Club, 546P.2d 719 (Cal. 1976), cert. denied, 429 U.S. 859 (1976); Offshore
Rental Co. v. Continental Oil Co, 583 P.2d 721 (Cal. 1978); Kearney v. Salomon Smith Barney, Inc.,
137P.3d 914 (Cal. 2006); McCann v.Foster Wheeler LLC., 225P.3d 516 (Cal.2010).
56 Md. L.Rev. 1248, 126263 (1997).
99. See P.V. ex rel. T.V.v.Camp Jaycee, 962 A.2d 453 (N.J.2008).
100. 539 A.2d 1213 (N.J.1988).
101. The defendant was a general contractor that subcontracted with plaintiff s employer. The plaintiff
was exposed to radioactivity, while working for his employer, in defendants South Carolina plant. The law
of South Carolina, but not New Jersey, accorded defendant immunity from a tort action.
165
Jersey court put the interests of the two states on the scale and concluded, over a strong dissent,
that New Jerseys interest in protecting New Jersey employees and sub-contractors was not
strong enough to outweigh South Carolinas interest102 in protecting its employers. The court
applied South Carolinalaw.
Another example of identifying state interests in a way that seems to liberate interest analysis from some of its congenital biases is Gantes v. Kason Corporation,103 a products liability case. Pursuant to Curries assumptions, Gantes would be classified as a no-interest case,
because New Jersey law favored the Georgia plaintiff injured in Georgia, whereas Georgia
law favored the New Jersey defendant that manufactured the product in New Jersey.104 After
concluding that Georgia did not have an interest in protecting a New Jersey manufacturer,
the New Jersey court took a broader view in identifying New Jerseys interests. The court
concluded that, in addition to protecting plaintiffs (domestic or foreign), New Jersey law was
intended to deter the manufacture of unsafe products in New Jersey. Because the product had
been manufactured in, and placed into the stream of commerce from, [New Jersey],105 that
state had a cognizable and substantial interest in deterrence that would be furthered by the
application of its law.106 Thus, by reading the forums interests in a non-protectionist way,
the court was able to conclude that this was a false conflict in which only New Jersey had an
interest. The court applied New Jersey law, which benefited a foreign plaintiff at the expense
of a forum defendant.
Finally, another example of articulating the forums interests in a non-protectionist way
is Kaiser-Georgetown Comminity Health Plan, Inc. v. Stutsman,107 a medical malpractice case.
Under Curries assumptions, this would also qualify as a no-interest case, because the law of
the forum, the District of Columbia, favored a Virginia plaintiff by providing unlimited tort
damages, but the law of Virginia favored a forum defendant by limiting the amount of damages. Nevertheless, the court found that the forum had a significant interest in holding its
[defendants] liable for the full extent of the negligence attributable to them.108 Thus, the court
applied forum law, even though that law favored a foreign plaintiff at the expense of a forum
defendant.
B. COMPARATIVE IMPAIRMENT
As noted earlier, Californias comparative impairment approach also entails interest-weighing,
albeit with a different name. Three well-known California cases, Bernhard v.Harrahs Club,109
102. Eger, 539 A.2d at1218.

103. 679 A.2d 106 (N.J.1996).
104. The plaintiff s action was timely, under New Jerseys two-year statute of limitations, but it was barred
by Georgias 10-year statute of repose for products liability claims.
105. Gantes, 679 A.2d at 11112.
106. Id. at113.
107. 491 A.2d 502 (D.C. App.1985).
108. Id. at 50910.
109. 546P.2d 719 (Cal. 1976), cert. denied, 429 U.S. 859 (1976).
166
Kearney v.Salomon Smith Barney, Inc.,110 and Offshore Rental Co. v.Continental Oil Co.,111 illustrate this phenomenon.112
Bernhard was a true conflict between the laws of California and Nevada. California law
favored the plaintiff, who was domiciled and injured in California, whereas Nevada law favored
the defendant, a Nevada casino-tavern owner that acted in Nevada. The defendant had served
alcohol to an apparently intoxicated California patron, who then drove to California and caused
the accident that resulted in plaintiff s injury. California, but not Nevada, imposed civil liability
on the tavern owner for injuries caused by the patron. Following Professor Baxters comparative impairment approach, the court applied California law. The court found that Californias
interest in imposing civil liability on tavern owners would be very significantly impaired if
its policy were not applied to defendant, whereas Nevadas interest in protecting its tavern
keepers from civil liability will not be significantly impaired113 by imposing civil liability
on them under California law.114
The court reiterated Baxters statements to the effect that the process of comparative impairment is very different from a weighing process.115 But the court apparently misunderstood the
meaning of weighing, by assuming it to be a process of determining which conflicting law
manifest[s]the better or the worthier social policy on the specific issue.116 Neither Currie
nor Baxter ever advocated such a value-laden weighing.117 All in all, when one looks beyond
the confusion created by misused nomenclature, there remains little doubt that Bernhard is
simply another example of interest-weighing by another name. Rather than weighing interests as such, comparative impairment weighs the loss that would result from subordinating the
interest of one state to those of the other... . The gravity of the loss depend[s] on the strength
and importance of the state interest at issue.118
Kearney v. Salomon Smith Barney, Inc.,119 another true conflict, involved cross-border
telephone calls between employees of a national brokerage firm operating in Georgia and its
California clients, including the plaintiffs. The employees regularly recorded the telephone calls,
as permitted by Georgia law, but not California law, which prohibited such recordings without
the consent of all participants. The plaintiffs sued the firm in California, seeking injunctive
relief and damages. The California Supreme Court held that California law governed, but only
110. 137P.3d 914 (Cal.2006).

111. 583P.2d 721 (Cal.1978).
112. Afourth case (and the latest), McCann v.Foster Wheeler LLC., 225P.3d 516 (Cal. 2010), involves a
statutes-of-limitations conflict. It is discussed infra 53739.
113. Bernhard, 583P.2d at725.
114. Id. This was so, because such liability involves an increased economic exposure, which, at least for
businesses which actively solicit extensive California patronage, is a foreseeable and coverable business
expense, and because as in the instant case liability is imposed only on those tavern keepers who actively
solicit California business. Id. (footnote omitted).
115. Id. at723.
116. Id.
117. Id. The court was closer to the mark when it described this process as one of accommodation of
conflicting state policies in multi-state contexts[.] Id. at724.
118. S. Symeonides & W. Perdue, Conflict of Laws296.
119. 137P.3d 914 (Cal.2006).
167
prospectively. Accordingly, the court granted the requested injunctive relief, but it denied the
claim for damages.
The court found that Georgia had a legitimate interest in not having liability imposed
on persons or businesses who have acted in Georgia in reasonable reliance on the provisions
of Georgia law,120 but California also had an interest in protecting the privacy of telephone
conversations of California residents while they are in California.121 Then, employing its
comparative impairment approach, the court concluded that Californias interests would be
severely impaired if its law were not applied in this context, whereas Georgias interest would
not be significantly impaired if California law rather than Georgia law were applied.122 The
court reasoned that, if out-of-state companies, or even in-state companies with an out-of-state
telephone office (perhaps outsourced), could maintain a regular practice of secretly recording
all telephone conversations with their California clients that practice would represent a
significant inroad into the privacy interest that [California law] was intended to protect, and it
could also place local companies at a competitive disadvantage.123 In contrast, the application
of California law would have a relatively less severe effect on Georgias interests, because it
would apply only to those telephone calls that are made to or received from California, and
Georgians conversing with Californians could easily comply with the laws of both states.124
However, the court wisely decided to give only prospective effect to its decisionandto
restrain the application of California law with regard to the imposition of liability for acts that
have occurred in the past, in order to accommodate Georgias interest in protecting persons who
acted in Georgia in reasonable reliance on Georgia law from being subjected to liability on the
basis of such action.125
The court held that the plaintiffs request for injunctive relief should be allowed to proceed
under California law, but their claim for damages from defendants past conduct should be
dismissed under Georgia law.126
In Offshore Rental Co. v. Continental Oil Co.,127 another (potentially) true conflict, the
California court applied the law of the other state, Louisiana. A California statute favored a
California plaintiff, and a Louisiana rule favored a defendant operating in Louisiana.128 The
court found that Louisianas interest in applying the rule was stronger, [and] more current129
than Californias corresponding interest, and that the application of California law would
120. Id. at933.
122. Id. at937.
123. Id. at935.
124. Id. at936.
125. Id.
126. Id. at 93839.
127. 583P.2d 721 (Cal.1978).
128. Offshore was an action by a California employer for the loss of the services of a key employee, who
was injured in Louisiana, by defendants employees. California, but not Louisiana, provided employers
with an action for the loss of services of a key employee.
129. Offshore, 583P.2d at729.
168
strike at the essence of a compelling Louisiana law.130 In contrast, California was not really
committed to its statute, which was archaic and isolated in the context of the laws of the
federal union[.]131 Hence, Californias interest in applying its unusual and outmoded statute
[was] comparatively less strong.132 Thus, Offshore appeared to repudiate not only Curries proscription of interest-weighing, but also Baxters more subtle formulation that the court should
only weigh the effects of the application (or non-application) of a states law. Indeed, in a very
real sense, Offshore engaged in a comparative evaluation of the conflicting laws themselves,
thus coming perilously close to a better-law approach.
C. THE LEX FORI VARIANT

As explained earlier, Curries interest analysis was heavily biased in favor of the lex fori, in both
true conflicts and in unprovided-for cases. The courts of Kentucky and Michigan seem to have
turned this bias into a doctrine.133
Foster v.Leggett134 illustrates Kentuckys lex fori approach. Most casebooks classify Foster as
an interest-analysis case, even though the majority opinion contains no reference to Curries
writings or, for that matter, any academic commentary. This classification is correct, in the
sense that the court reached the precise result Currie advocated. But the courts heavy reliance on the forums contacts and the absence of any discussion of policies suggest a contacts-
based lex fori approach that is potentially more parochial than Curries. According to this
approach:(1)[t]he basic law is the law of the forum, which should not be displaced without
valid reasons[]; and (2) such reasons are not present whenever the forum has significant
contactsnot necessarily the most significant contacts.135
Foster arose out of an accident in Ohio, which resulted in the death of a Kentucky domiciliary, who was a guest-passenger in a car driven by the defendant, an Ohio domiciliary.136 Ohio,
but not Kentucky, had a guest-statute shielding the driver and his insurer from a suit brought on
behalf of the guest-passenger. Thus, based on the assumptions of interest analysis, this was a true
conflict, in which each state had an interest in applying its law to protect its own domiciliary. The
court spoke of neither policies nor interests, nor did it cite to any of Curries writings. But the
court did echo Curries views when it stated that the courts primary responsibility is to follow
its own substantive law, and that [t]he basic law is the law of the forum, which should not be
130. Id. at728.

131. Id. at726.
132. Id. at728.
133. The Nevada Supreme Court also adopted a lex fori approach for tort conflicts in Motenko v.MGM
Dist., Inc., 921 P.2d 933 (Nev. 1996), but it later abandoned this approach in favor of the Restatement
(Second). See Gen. Motors Corp. v.Eighth Jud. Dist., 134P.3d 111 (Nev.2006).
134. 484 S.W.2d 827 (Ky.1972).
135. Id. at829.
136.The defendant worked in Kentucky, where he rented a room and had his social relationships,
including a dating relationship with the deceased. Because of these Kentucky contacts, one could argue
that Foster was sufficiently analogous to the common-domicile pattern, as to justify the application of
Kentucky law on this basis. But, as explained in the text, this was not the basis of the courts decision.
169
displaced without valid reasons.137 Whether such a valid reason existed in this case is not free
from doubt, but the court did not appear to entertain any. In a fashion that replicates Curries
solution to true conflicts, the court concluded that if there are significant contactsnot necessarily the most significant contactswith Kentucky, then Kentucky law should be applied.138
The court acknowledged that its decisions could justify the inference that we have accepted the
rule of most significant contacts to apply to Kentucky residents involved in another state and
the rule of enough contacts for residents of other states involved in Kentucky.139 Nevertheless,
the court stated, [s]uch is not the holding or policy of this court.140
Although the courts interpretation of its holdings is entitled to respect, the courts failure to
explain the absence of valid reasons for displacing forum law (other than reciting forum contacts) makes its analysis vulnerable to the same criticism for parochialism as Curries own theory.141
Sutherland v. Kennington Truck Service, Ltd.142 illustrates Michigans lex fori approach.
Sutherland arose out of a traffic accident in Michigan involving an Ohio plaintiff and an
Ontario defendant. The plaintiff s action was timely under Michigans three-year statute of limitation, but Ohio and Ontarios two-year statutes barred it.143 Relying on its own perception that
most courts following the modern approaches tend to prefer forum law, the court opined that
this phenomenon was hardly surprising [because] the tendency toward forum law promotes
judicial economy:judges and attorneys are experts in their states law, but have to expend considerable time and resources to learn another states law.144 Turning preference into virtue, the
court elevated this tendency into a choice-of-law method, according to which a Michigan
court should apply Michigan law, unless a rational reason145 exists to do otherwise. In determining whether such a reason exists, the court first decides whether any foreign state has an
interest in applying its law. If not, the analysis ends, and forum law applies. If a foreign state
137. Foster, 484 S.W.2d at829.

138. Id.
139. Id.
140. Id.
141. For a subsequent, but equally extreme, application of Kentuckys lex fori approach, see Elder v.Perry
Cty. Hosp., 2007 WL 2685007 (Ky. Ct. App. Sept. 14, 2007), review denied (Sep.10, 2008). Elder was a medical
malpractice case filed by Kentucky domiciliaries against an Indiana hospital that treated the plaintiffs child.
The law of Indiana, but not of Kentucky, limited the amount of damages for medical malpractice. Noting that
Kentucky courts apply Kentucky law whenever it can be justified, the court held that, in this case, the application of Kentucky law was justified because Kentucky courts have jurisdiction over cases involving tortious
acts committed outside the Commonwealth, and also because:(1)Kentucky had significant contacts, (2)the
Kentucky Constitution prohibited the Kentucky Legislature from limiting the amount of wrongful death
damages, and (3)Indiana law directly contradict[ed] Kentucky public policy. Id. at *5 (emphasis added).
Interestingly, the court designated this opinion as not to be published. Elder is one of very few inpatient
medical malpractice cases that did not apply the law of the state where the medical services were rendered.
142. 562 N.W.2d 466 (Mich.1997).
143. To its credit, the court refused to resolve the conflict through the traditional mechanical characterization of statutes of limitations as procedural, which, in the absence of a borrowing statute, would have
led to the application of the lex fori. See infra, at 52430. Rather, the court employed a full-fledged choice-
of-law analysis, leading to the same result.
144. Sutherland, 562 N.W.2d at470.
145. Id. at471.
170
has an interest, then the court determines if Michigans interests mandate that Michigan law
be applied, despite the foreign interests,146 in which case Michigan law again applies.
Using this method, the court concluded that neither Ohio nor Ontario had an interest in
applying their respective statutes of limitation. Thus, the lex fori presumption [was] not overcome, and [the court] need not evaluate Michigans interests.147 The court found that Ohio did not
have an interest, because the application of Ohio law would violat[e]the defendants due process
rights.148 The court did not explain how the application of a law that favors the defendant (as Ohio
law did) would somehow violate that defendants due process rights. The court also concluded
that Ontario did not have an interest in applying its two-year statute (which favored the Ontario
defendant), because, according to Canadian and Ontario law, Ontario has an interest in having
Michigans statute of limitations applied in this case.149 The basis for this conclusion was a decision
of the Supreme Court of Canada that had adopted the lex loci delicti rule for both substantive tort
matters and statutes of limitation. The Sutherland court did not explain how the lex loci rule, which
the Michigan court had earlier discarded as mechanical and oblivious to state interests, suddenly
had become an accurate barometer of another states interest in the modern sense of that word.150
The two versions of the lex fori approach appear to differ in phraseology and nuance regarding the burden for rebutting the lex fori presumption. Both versions, however, remain statistically, if not ideologically, attuned with Curries approach, in that they tend to produce the very
results he advocated in the majority of casesthe application of the lex fori. In this sense, both
versions entail the risk of encouraging or legitimizing (especially in the lower courts) the very
parochialism that conflicts law strives to minimize.
V II. T H E B E T T E R -L AW A PPR OA CH
The first state to adopt Professor Leflars choice-influencing considerations, including the
better-law criterion, was New Hampshire in 1966.151 Since then, Wisconsin (1967),152 Rhode
146. Id.
147. Id. at473.
148. Id. at472.
149. Id.
150.In Radeljak v. DaimlerChrysler Corp., 719 N.W.2d 40 (Mich. 2006), the Michigan Supreme Court
rebuked the foreign plaintiffs, who tried to take advantage of its lex fori approach by filing a products liability action in Michigan against a Michigan-headquartered automobile manufacturer. The plaintiffs were
Croatian domiciliaries, who were injured in Croatia by a car designed and manufactured by the defendant
in Michigan. The court held that the suit should be dismissed on forum non conveniens grounds, stating
that Croatian law would likely govern the case, because Croatia had a greater interest in this case. Id. at
46. The court also stated that the plaintiffs sued in Michigan to take advantage of Michigans favorable
laws and to avoid Croatias less favorable laws. Id.at48.
151. See Clark v.Clark, 222 A.2d 205, 210 (N.H. 1966). For later cases, see Taylor v.Bullock, 279 A.2d 585
(N.H. 1971); Gagne v.Berry, 290 A.2d 624 (N.H. 1972); Maguire v.Exeter & Hampton Elec. Co., 325 A.2d
778 (N.H. 1974); Gordon v.Gordon, 387 A.2d 339 (N.H. 1978); LaBounty v.Am. Ins. Co., 451 A.2d 161
(N.H. 1982); Ferren v.Gen. Motors Corp. Delco Battery Div., 628 A.2d 265 (N.H. 1993); Benoit v.Test
Sys., Inc., 694 A.2d 992 (N.H.1997).
152. See Heath v. Zellmer, 151 N.W.2d 664 (Wis. 1967). For later cases, see Zelinger v. State Sand &
Gravel Co., 156 N.W.2d 466 (Wis. 1968); Conklin v.Horner, 157 N.W.2d 579 (Wis. 1968); Hunker v.Royal
171
Island (1968),153 Minnesota (1973),154 and Arkansas (1977)155 have adopted this approach
for tort conflicts, although, by the turn of the century, they began combining it with other
approaches. In contract conflicts, only Minnesota and Wisconsin follow Leflars approach.156
A. EARLY CASES:THEBIASES
The early cases that followed Leflars approach provided ample vindication for most of the
philosophical and methodological criticisms leveled against it. Indeed, it is not surprising
that an approach that authorizes an ad hoc, unguided, and ex post choice of the better law
produces choices reflective of the subjective predilections of the judges making them. To the
extent that judges tend to prefer domestic over foreign law, plaintiffs over defendants (foreign
or domestic), or domestic over foreign litigants (plaintiffs or defendants), judicial decisions
are bound to reflect such preferences. The early cases from the five states following Leflars
approach exhibit all three of these tendencies to a higher degree than usual. Although these
tendencies are not parallel, they all stem from the same sourcethe judicial subjectivism that
the better-law approach legitimizes.
A preference for forum law is a byproduct of the human tendency to gravitate to the familiar. With human nature being what it is, it is not surprising that judges tend to consider the
forums law, with which they are most familiar, to be the better law. More often than not, this
is precisely what judges applying the better-law approach have concluded. In this sense, the
Wisconsin Supreme Court was refreshingly forthright in essentially equating its adherence to
Leflars approach with a strong presumption in favor of the lex fori.157
Indem. Co., 204 N.W.2d 897 (Wis. 1973); Lichter v.Fritsch, 252 N.W.2d 360 (Wis. 1977); State Farm Mut.
Auto. Ins. Co. v.Gillette, 641 N.W.2d 662 (Wis.2002).
153. See Woodward v. Stewart, 243 A.2d 917 (R.I. 1968). For later cases, see Brown v. Church of the
Holy Name of Jesus, 252 A.2d 176 (R.I. 1969); Busby v.Perini Corp., 290 A.2d 210 (R.I. 1972); Pardey
v.Boulevard Billiard Club, 518 A.2d 1349 (R.I. 1986); Victoria v.Smythe, 703 A.2d 619 (R.I. 1997); Cribb
v.Augustyn, 696 A.2d 285 (R.I. 1997); Taylor v.Mass. Flora Realty Inc., 840 A.2d 1126 (R.I. 2004); Oyola
v.Burgos, 864 A.2d 624 (R.I.2005).
154. See Milkovich v. Saari, 203 N.W.2d 408 (Minn. 1973). For later cases, see Schwartz v. Consol.
Freightways Corp. of Delaware, 221 N.W.2d 665 (Minn. 1974); Blamey v.Brown, 270 N.W.2d 884 (Minn.
1978), cert. denied, 444 U.S. 1070 (1980); Hague v.Allstate Ins. Co., 289 N.W.2d 43 (Minn.1978), aff d,
449 U.S. 302 (1981); Bigelow v.Halloran, 313 N.W.2d 10 (Minn. 1981); Nodak Mut. Ins. Co. v.Am. Fam.
Mut. Ins. Co., 604 N.W.2d 91 (Minn.2000).
155. See Wallis v.Mrs. Smiths Pie Co., 550 S.W.2d 453 (Ark. 1977); Schlemmer v.Firemans Fund Ins.
Co., 730 S.W.2d 217 (Ark. 1987); Gomez v.ITT Educ. Servs. Inc., 71 S.W.3d 542 (Ark. 2002); Schubert
v.Target Stores, Inc., 201 S.W.3d 917 (Ark.2005).
156. See Himes v.State Farm Fire & Cas. Co., 284 N.W.2d 829 (Minn. 1979); Hague v.Allstate Ins. Co.,
289 N.W.2d 43 (Minn. 1978), aff d, 449 U.S. 302 (1981); Jepson v.Gen. Cas. Co. of Wisc., 513 N.W.2d 467
(Minn. 1994); Nodak Mut. Ins. Co. v. Am. Family Mut. Ins. Co., 604 N.W.2d 91 (Minn. 2000); Haines
v.Mid-Century Ins. Co., 177 N.W.2d 328 (Wis. 1970); Schlosser v.Allis-Chalmers Corp., 271 N.W.2d 879
(Wis.1978).
157. See State Farm Mut. Auto. Ins. Co. v.Gillette, 641 N.W.2d 662, 676 (Wis. 2002)(prefacing its application of the five Leflar factors with a statement that the primary choice-of-law rule in Wisconsin is that
the law of the forum should presumptively apply unless it becomes clear that nonforum contacts are of
the greater significance). See also Love v.Blue Cross and Blue Shield of Georgia, Inc., 439 F.Supp.2d 891
(E.D. Wis. 2006) (stating that the better-law factor largely echoes the advancement of the forums
172
Indeed, an earlier survey of the cases decided in the five states that followed Leflars approach
for tort conflicts found only four supreme court cases in which the court admitted that the foreign law was better than the forums.158 In three of those cases, the court applied the foreign
law, butperhaps not coincidentallyin two of these cases that law favored a forum plaintiff.
In the third case, a legislative change prior to trial had eliminated the difference between the
forum and foreign law. In the fourth case, the court did not apply the better foreign law, perhaps because that law disfavored a forum defendant. Finally, in the only other tort conflict in
which the court applied foreign law, that law produced the same result as a forum statute that
was inapplicable on technical grounds.
The bias in favor of forum law was more visible in lower court cases, many of which never
reach the state supreme court. For example, some lower Minnesota courts have applied a
Minnesota rule, after proclaiming it better than the conflicting foreign rule, even after the
Minnesota legislature repealed the Minnesota rule and replaced it with a rule identical to the
rejected foreign rule.159
A preference for forum law often, though not always, translates into a preference for plaintiffs. This is true because of the wide latitude plaintiffs generally enjoy in choosing a forum
and the strong likelihood that they will choose one whose conflicts law and substantive law
favor recovery. For example, as the above survey documented,160 in four out of the five post-
lex loci tort conflicts that reached the Rhode Island Supreme Court, in which the plaintiff s
recovery depended on the applicable law, the court applied the pro-recovery law of the forum
for the benefit of a foreign plaintiff. Similarly, of the six tort conflicts cases decided by the New
Hampshire Supreme Court, two cases applied forum law for the benefit of a forum plaintiff,
three cases applied forum law for the benefit of a foreign plaintiff, and the sixth case applied
forum law for the benefit of a forum defendant.
Sometimes, the preference for a forum litigant (plaintiff or defendant) prevails over other
preferences, including the preference for forum law. For example, in two of the three cases in
which the Minnesota Supreme Court applied foreign law (in both tort and contract conflicts),
that law benefited a forum plaintiff.161 If this is not coincidental, it suggests that, when forced
to choose between forum law and protecting forum litigants, courts tend to choose the latter.
Lower court cases present clearer evidence of this trend.162
governmental interest. Id. at 897. In other words, said the court, when the forum state has a clear
policy, and when the states law fairly articulates that policy, it follows that the better rule of law will
tend to be the forum states law.Id.
159. Id.at83.
160. Id. at8384.
161. Id. at8485.
162. See, e.g., Boatwright v. Budak, 625 N.W.2d 483, 489 (Minn. Ct. App. 2001) (applying Iowa law,
because Iowa law best serve[d]Minnesotas interests in compensating tort victims domiciled in
Minnesota, even though Minnesota law favored the defendant by limiting the amount of damages);
Lommen v.The City of East Grand Forks, 522 N.W.2d 148 (Minn. Ct. App.1994) (applying Minnesotas
pro-defendant law to protect a Minnesota defendant in an action brought by a North Dakota plaintiff
injured in North Dakota).
173
B. RECENT CASES:ECLECTICISM AND DE-EMPHASIS

OFTHE BETTER-LAWFACTOR
The above-described biases became less pronounced in the cases decided around and since the
end of the twentieth century. Most likely, this change is related to the fact that, by that time,
most of the states that had initially adopted Leflars approach began to combine it with other
approaches and to de-emphasize the better-law factor.
The trend toward an eclectic approach is most prominent in Rhode Island and Minnesota.
As noted earlier, the supreme courts of those states now combine Leflars approach with
several other approaches.163 Inevitably, this combination works at the expense of Leflars
emblematic factorthe better-law factor. This may explain the Minnesota Supreme Courts
statement that this court has not placed any emphasis on [the better-law] factor in nearly
20years.164 Indeed, the better-law criterion seems to play a far less significant role in recent
decisions than it did 30 years ago. In recent years, some courts have expressed misgivings
about their ability to determine which law is better, or have tried to dispel the notion that
better law and forum law are synonymous terms, whereas other courts have employed
the better-law criterion only as a tiebreaker, or ignored it altogether.165 If this trend persists,
then perhaps the better-law approach should resume its original name of (many) choice-
influencing considerations.
V I I I . C O M B I NED M ODER N
A P P R O A CHES
The following jurisdictions follow a combination of approaches other than the traditional one: New Jersey166 and the District of Columbia167 combine interest analysis with the
Restatement (Second) in contract conflicts; Massachusetts does likewise in both tort and contract conflicts;168 Hawaii follows a combination of interest analysis, the Restatement (Second),
163. See supra 14849.

164. Nodak Mut. Ins. Co. v.Am. Fam. Mut. Ins. Co., 604 N.W.2d 91, 96 (Minn.2000).
166. See Gilbert Spruance Co. v. Penn. Mfgrs. Assn Ins. Co., 629 A.2d 885 (N.J. 1993) Pfizer, Inc.
v.Employers Ins. of Wausau, 712 A.2d 634 (N.J. 1998); Unisys Corp. v.Ins. Co. of North Am., 712 A.2d
649 (N.J. 1998); HM Holdings, Inc. v.Aetna Cas. & Sur. Co., 712 A.2d 645 (N.J.1998).
167. See Dist. of Columbia Ins. Guar. Assn v.Algernon Blair, Inc. 565 A.2d 564 (D.C. App.1989) (applying interest analysis, but also relying on the Second Restatement); Owen v. Owen, 427 A.2d 933 (D.C.
1981)(applying a mixed approach, described as a search for the more substantial interest, but reduced
to contact counting).
168. See Bushkin Assoc., Inc. v.Raytheon Co., 473 N.E.2d 662 (Mass. 1985)(a contract case stating
that the court would not tie itself to any particular modern approach, but it would instead feel free
to draw from several approaches, as it had previously done in tort conflicts. The court drew from
the Second Restatement and Leflars approaches, but it applied them in a way that resembled interest
analysis.).
174
and Leflars choice-influencing considerations for both tort and contract conflicts;169 North
Dakota follows the same combination in contract conflicts, but perhaps in different dosages;170
and Pennsylvania combines interest analysis and the Restatement (Second) in contract conflicts, but also draws from Caverss principles of preference in tort conflicts.171 Finally, Louisiana
and Oregon have adopted their own codifications, which are discussed later.172
169. See Lewis v.Lewis, 748P.2d 1362 (Haw. 1988)(contract conflict interpreting Peters v.Peters, 634P.2d
586 (Haw. 1981), a tort conflict, as having adopted a significant relationship test with primary emphasis
on the state with the strongest interest).
170. See Am. Family Mut. Ins. Co. v.Farmers Ins. Exch., 504 N.W.2d 307 (N.D. 1993); Starry v.Central
Dakota Printing, Inc., 530 N.W.2d 323 (N.D.1995).
171. See, e.g., Cipolla v.Shaposka, 267 A.2d 854 (1970) (discussed infra, at 20506).
172. See infra, Chapter17.
PA R T T H R E E
CHOICE OFLAW
INPRACTICE
eight
Torts
I . I N TR ODUCT I ON
The previous chapters chronicled the movement of American conflicts law, from the rigid
territorial system of the First Restatement, to the choice-of-law revolution, and to the new
approaches that followed it. The focus of these chapters has been on choice-of-law methodology. With this chapter, the focus shifts to current practice and substantive outcomes. Beginning
with tort conflicts, this chapter surveys the cases decided by American courts since the abandonment of the lex loci delicti rule, and seeks to identify the emerging trends. It divides these
cases into fact-law patterns and assesses the extent to which courts reach the same (or different) results, regardless of which particular choice-of-law methodology they follow.1
One of the major developments of this period has been the emergence of a distinction between
tort rules designed primarily to regulate conduct, and those designed primarily to allocate between
parties the losses caused by admittedly tortious conduct. This chapter begins with a brief description of this distinction (Section II), continues with a discussion of loss-distribution conflicts, which
are more numerous (Section III), and concludes with conduct-regulation conflicts, including those
involving punitive damages (Section IV). Product liability conflicts deserve separate consideration
because of their complexity and other factors. They are discussed in the next chapter.
II. T H E D I S T I N C T I ON BET WEEN CONDUCT-

R E G U L AT I O N A ND LOS S -D I S T R I BUT I ON
A. THE ORIGINS AND MEANING
OFTHE DISTINCTION
1.Antecedents
At least since the time of the Italian statutists, private international law has struggled with the
basic question of delineating the spatial operation of laws. The question can be phrased in
1. This chapter draws extensively from S.Symeonides, Choice-of-Law Revolution, and the authors contribution in Hay, Borchers & Symeonides, Conflict of Laws 7901083. For additional bibliography, see
Weintraub, Commentary 394503; McDougal, Felix & Whitten, American Conflicts 44787.
177
178
Choice of Law in Practice
different ways, but one of them is whether laws attach to a territory as such, or to the citizens
or domiciliaries of that territory (territoriality versus personality). The statutists thought they
solved the problemsome laws operate territorially (statuta realia) and some laws follow the
person (statuta personalia). However, the statutists answer to the all-important question of
which is which left much to be desired.2
Since then, various national conflicts systems have answered the same basic question in
various ways, which are discussed later. In the United States, Joseph Beale took the position
that most law operates territorially, and essentially all of tort law operates territorially,3 a position he codified in his first Restatement as the lex loci delicti rule. The American conflicts
revolution was a rebellion against many aspects of Beales system. But in terms of actual results,
the revolution was also, if not primarily, a rebellion against the lex loci delicti rule and its
underlying holistic assumption that all of torts law operates territorially. Without denying that
many tort rules operate territorially, many courts came to the realization that some tort rules,
or some rules implicated in tort cases, do not, or should not, operate territorially.
For example, as early as 1953, Justice Traynor of the California Supreme Court said as much,
albeit obliquely. In Grant v.McAuliffe,4 the court faced the question of whether a California victims right to sue the estate of the deceased California tortfeasor should be governed by the law
of their common domicile, which permitted such suits, or instead by the law of the state of the
tort, which prohibited the suit. Realizing that, if framed as a question of tort law, this question
would be governed by the lex loci delicti, the court chose to characterize it as either a question
of procedure or as one of decedents estates. Either characterization led to the application of the
law of California, which was both the forum state and the decedents domicile.
Two years later, the same court faced a similar dilemma in Emery v. Emery5whether a
person should be allowed to sue a member of her family in tort. The law of the place of the
tort prohibited such lawsuits (intra-family immunity), whereas the law of the parties common domicile permitted them. Again, realizing that, if framed as a question of tort law, this
question would have to be governed by the lex loci, the court, speaking again through Traynor,
characterized this as a question of family law and thus applied the law of the parties common
domicile. Four years after Emery, the same question appeared in Haumschild v. Continental
Casualty Co.,6 a Wisconsin case arising from a California tort. Taking note of Emery, the court
answered it the same way, by applying the law of Wisconsin, the parties common domicile.
In essence, all three of the above cases created exceptions to the lex loci rule and its underlying principle of territoriality. They applied the law of a state that had personal connections
with the parties, rather than the law of the state that had a territorial connection to the tort.
However, because the time was not yet ripe for an open departure from the lex loci rule,7 the
2. See supra 4749.

3. See supra54.
4. 264P.2d 944 (Cal.1953).
5. 289P.2d 218 (Cal.1955).
6. 95 N.W.2d 814 (Wis. 1959) (applying Wisconsins pro-recovery law to a dispute between Wisconsin
parties and arising from a California accident, after characterizing the plaintiff s action as one of family
law rather than oftort).
7. Justice Traynor explained later that, despite his efforts, he was unable to garner a majority vote for
abandoning the lex loci rule at that time. See R. Traynor, Is This Conflict Really Necessary? 37 Tex. L.Rev.
658, 670 (1959).
Torts
179
court had to camouflage these exceptions with characterization gimmicks. Thus, the courts did
not have the opportunity to articulate the criteria for determining when to follow the principle
of territoriality and when not to. This step came in Babcock v.Jackson,8 the first case openly to
depart from the lex locirule.
2. Babcock and Schultz

As previously noted, the Babcock court distinguished between the issue of a host-drivers
immunity provided by the Ontario guest-statute, and issues related to the manner in which
the defendant had been driving his car at the time of the accident [or to] the defendants
exercise of due care.9 The court applied the law of NewYork, the parties common domicile,
to the first issue, because:
Although the rightness or wrongness of defendants conduct may depend upon the law of the
particular jurisdiction through which the automobile passes, the rights and liabilities of the parties which stem from their guest-host relationship should remain constant and not vary and shift
as the automobile proceeds from place to place.10
As to this issue, the court said, the state in which both parties were domiciled and in which
their relationship was centered had the dominant contacts and the superior claim for application of its law.11
However, the court also noted that, with regard to the latter issues, that is, the defendants
exercise of due care, the state in which the conduct occurred would usually have a predominant, if not exclusive, concern, and that it would be almost unthinkable to seek the applicable
rule in the law of some other place.12
In other words, this was no longer to be an all-or-nothing propositionthe lex loci for all
issues, or not at all. Rather, the choice of the governing law was to depend on the particular
issue. If the conflict involved an issue that implicated the conduct-regulation concerns of the
state of conduct, territoriality was to remain the governing principle. But, if the issue was one
that implicated reparation concerns for admittedly tortious conduct, the court was to look at
other factors, particularly the personal connections of both the payor and the payee of the
reparation. Thus was born the distinction between conduct-regulation issues or rules, on the
one hand, and loss-distribution (or loss-allocation) issues or rules, on the other.13
8. 191 N.E.2d 279 (N.Y. 1963) (discussed supra at 12427).

9. Id. at284.
10. Id. at285.
11. Id.
12. Id. at284.
13. Currie came to a similar distinction when he differentiated between compensatory and conduct-
regulating laws. See Currie, Selected Essays, 5861, 69. The Restatement (Second) also alludes to this
distinction, in stating that the place of conduct has peculiar significance when the tort rule at issue is
intended to deter misconduct. Restatement (Second), 145, cmt. e. For Ehrenzweigs theory of local
data, see A. Ehrenzweig, Local and Moral Data in the Conflict of Laws, 16 Buffalo L. Rev. 55 (1966).
For the same theory in Europe, see E. Jayme, Versorgungsausgleich mit Auslandsberhrung und Theorie
180
The New York court reiterated this distinction in Schultz v. Boy Scouts of America, Inc.14 The
court explained that, in conflicts between conduct-regulating rules, the state where the tort occurs
will usually have a predominant, if not exclusive, concern,15 because of that states interests in
protecting the reasonable expectations of the parties who relied on it to govern their primary conduct and in the admonitory effect that applying its law will have on similar conduct in the future[.]16
Conversely, in conflicts between rules [that] relate to allocating losses that result from
admittedly tortious conduct, such as [rules] limiting damages in wrongful death actions,
vicarious liability rules, or immunities from suit, considerations of the States admonitory interest and party reliance are less important.17 In such conflicts, the court said, [a]nalysis
favors the jurisdiction of common domicile because of its interest in enforcing the decisions
of both parties to accept both the benefits and the burdens of identifying with that jurisdiction
and to submit themselves to its authority.18
After concluding that both New Jerseys charitable-immunity rule and New Yorks no-
immunity rule were loss-distribution rules, the Schultz court applied the law of the parties
common domicile, rather than the law of the place of the tortious conduct.
With Babcock, and later Schultz, the distinction between conduct-regulation rules and loss-
distribution rules took root in NewYork conflicts law. Since then, courts in many other states
also adopted this distinction, explicitly or implicitly, even though in many cases they did not
use this precise terminology.19 As one comprehensive study concluded, [w]hile not every state
has decided the issue, there are no states that have rejected [it].20
des internationalen privatrechtsBegriffe und Instrumente, in Zacher (ed.), Der Versorgungsausgleich im

internationalen Vergleich und in der zwissenstaatlichen Praxis, 423 (1985).
14. 480 N.E.2d 679 (N.Y. 1985), discussed supra 15658. See also Miller v.Miller, 237 N.E.2d 877 (N.Y.
1968)(noting that a rule limiting the amount of compensatory damages was not a conduct-regulatingrule).
15. Schultz, 480 N.E.2d at 684 (quoting Babcock, 191 N.E.2d at284).
16. Id. at 68485.
17. Id. at685.
18. Id. (footnote omitted).
19. See, e.g., Collins v.Trius, Inc., 663 A.2d 570 (Me. 1995); OConnor v.OConnor, 519 A.2d 13 (Conn.
1986); Miller v. White, 702 A.2d 392 (Vt. 1997); Myers v. Langlois, 721 A.2d 129 (Vt. 1998); Lessard
v. Clarke, 736 A.2d 1226 (N.H. 1999); Schwartz v. Schwartz, 447 P.2d 254 (Ariz. 1968); Woodward
v. Stewart, 243 A.2d 917 (R.I. 1968); Mellk v. Sarahson, 229 A.2d 625 (N.J. 1967); Fu v. Fu, 733 A.2d
1133 (N.J. 1999); Veasley v. CRST Intern., Inc., 553 N.W.2d 896 (Iowa 1996); District of Columbia
v.Coleman, 667 A.2d 811 (D.C. App.1995); Rong Yao Zhou v.Jennifer Mall Rest., Inc., 534 A.2d 1268
(D.C. App.1987); Phillips v.Gen. Motors Corp., 995P.2d 1002 (Mont. 2000); Bauer v.Club Med Sales,
Inc., 1996 WL 310076 (N.D. Cal. May 22, 1996); Ellis v.Barto, 918P.2d 540 (Wash. App.1996), review
denied, 930P.2d 1229 (Wash. 1997); Troxel v.A.I.duPont Inst., 636 A.2d 1179 (Pa. Super. 1994); Spinozzi
v. ITT Sheraton Corp., 174 F.3d 842 (7th Cir. 1999); Kuehn v. Childrens Hosp., Los Angeles, 119 F.3d
1296 (7th Cir. 1997); Moye v.Palma, 622 A.2d 935 (N.J. Super. 1993); Dorr v.Briggs, 709 F.Supp.1005
(D. Colo. 1989); FCE Transp., Inc. v.Ajayem Lumber Midwest Corp., 1988 WL 48018 (Ohio App. May
12, 1988); Matson by Kehoe v. Anctil, 979 F. Supp. 1031 (D. Vt. 1997); Matson by Kehoe v. Anctil, 7
F.Supp.2d 423 (D. Vt. 1998); Svege v.Mercedes Benz Credit Corp., 182 F.Supp.2d 226 (D. Conn. 2002);
Burney v. PV Holding Corp., 553 N.W.2d 657 (Mich. App. 1996); Pittman v. Maldania, Inc., 2001 WL
1221704 (Del. Super. July 31,2001).
20. J.T. Cross, The Conduct-Regulating Exception in Modern United States Choice-of-Law, 36 Creighton
L.Rev. 425, 441 (2003).
Torts
181
3. Legislative Sanction
a. American Codifications
The 1991 Louisiana codification also adopted a similar distinction, although it used terminology intended to narrow the category of conduct-regulating rules. The pertinent provision of
the codification, Article 3543, refers to rules or issues pertaining to standards of conduct and
safety,21 terms suggesting that the inspiration for this dichotomy came from Europe,22 rather
than from NewYork.
Although the quoted terms are not self-defined (and the codifications drafter avoided the
risk of defining them), they may provide an answer to the view that assumes, to some extent
justifiably, that all rules of tort law are, at some level, conduct-regulating.23 For even if all tort
rules are conduct-regulating, not all of them prescribe standards of conduct and safety. In any
event, at least for the sake of brevity, the two sets of terms can be used interchangeably, and this
author admits to having so used them. For this reason, and for the sake of brevity, this book
uses the term conduct-regulation, even when referring to the Louisiana codification.
The codification provides different choice-of-law rules for conduct-regulation conflicts
than for loss-distribution conflicts. For the former category, Article 3543 discounts the parties domicile and focuses on the places of conduct and injury.24 For the latter, the codification
focuses on the parties domicile, although it assigns a supporting role to the places of conduct
and injury.25
In the Oregon codification of 2009, this distinction is less explicit. It appears in two exceptions, the first of which exempts from the scope of the common domicile rule the standard
of care by which the conduct is judged26 and subjects that issue to the law of the state in
which the injurious conduct occurred. The second exception provides that, when the parties
are domiciled in different states that have different laws, and both the conduct and the injury
occurred in a third state, the law of the third state governs, unless the application of that law
21. La. Civ. Code Art. 3543 (2015) (emphasis added). Article 46 of the Puerto Rico Draft Code also uses
the same terminology. Professor Weinberg surmises that this distinction must have been influenced by
the embarrassingly wrong New York case Schultz v. Boy Scouts of America. See L. Weinberg, Theory
Wars in the Conflict of Laws, 103 Mich. L.Rev. 1631, 1655 (2005). This is a reasonable inference. However,
the first draft of the Louisiana codification, which used this distinction, was written before Schultz was
published. Whether or not the codifications drafter approves of the particular result in Schultz is unimportant. What is important is that the codification has equipped the judge with the tools to avoid that
result, if the judge is so inclined. For a discussion of how a court applying the Louisiana codification can
avoid the Schultz result, if the court is so inclined, see S. Symeonides, Resolving Six Celebrated Conflicts
Cases through Statutory Choice-of-Law Rules, 47 Mercer L.Rev. 837, 84854 (1997).
22. See infra at 18283.
24. Article 3543 provides that the law of the conduct-state governs, unless the injury occurred in another
state that imposes a higher standard of conduct. In the latter case, the law of the state of injury governs,
provided that the occurrence of the injury in that state was objectively foreseeable. For a similar provision, see Article 46 of the Puerto Rico DraftCode.
25. See La. Civ. Code Art. 3544 (2015) (discussed infra at 20102). This article provides, inter alia, that
if the parties are domiciled in the same state, the law of that state governs, subject to escape clauses provided in other articles. For a similar provision, see Article 47 of the Puerto Rico DraftCode.
26. Or. Rev. Stat. 15.440(2)(a) (2015).
182
to the particular issue will not serve the objectives of that law.27 The latter exception is more
likely to be applied if the issue is one of loss-distribution, rather than one of conduct-regulation.
b. Foreign Codifications
In the meantime, a parallel, but not identical, distinction emerged in the rest of the world. The
1966 Portuguese codification, which was the first expressly to introduce the common-party-
affiliation exception to the lex loci delicti, provided that the application of the law of the parties
common nationality, or habitual residence, shall be without prejudice to those provisions of
the lex loci delicti that must be applied to all persons without differentiation.28 Thus, this codification distinguished between two categories of tort rules:(1)those that must be applied to all
conduct within the locus state, and (2)those that need not be so applied. In time, the rules of
the first category came to be known as rules of conduct and safety. Obviously, this distinction
becomes important in all cases in which the applicable law is that of a state other than the state
of conduct, such as:(1)cases governed by the law of the parties common domicile or preexisting relationship, or (2)cross-border torts in countries that apply the law of the state of injury.
At least 16 conflicts codifications have since adopted the same notion, albeit using slightly
different phraseology.29 For example, the Swiss codification provides that, regardless of which
law governs a tort case, [r]ules of safety and conduct in force at the place of the act are [to be]
taken into consideration.30 The Belgian, Dutch, Hungarian, and Tunisian codifications contain
similar provisions,31 as do the Hague conventions on traffic accidents and products liability.32
The latest, and most timid, of these provisions is the one found in the 2007 Rome II Regulation,
which provides that [i]n assessing the conduct of the person claimed to be liable, account
shall be taken, as a matter of fact and in so far as is appropriate, of the rules of safety and
27. Or. Rev. Stat. 15.440(2)(b) (2015).

28. Portuguese codif. art. 45(3). The codifications of Angola, Cape Verde, East Timor, Guinea-Bissau,
Macau, and Mozambique, which are identical to the Portuguese codification, contain an identical
provision.
29. See S. Symeonides, Codifying Choice of Law8889.
30. Swiss Federal Statute on PIL of 1987, Art. 142(2).
31. See Belgian Code of PIL of 2004, Art. 102 (in determining liability consideration must be given to
the safety and conduct rules that are in force at the place and time of the tort); Dutch Act Regarding the
Conflict of Laws on Torts of 11 April 2001, Art. 8 (the Acts other choice-of-law articles shall not prevent
the taking into account of traffic and other safety regulations, and other comparable regulations for the
protection of persons or property in force at the place of the tort.); Hungarian PIL Decree of 1979, 33.1
(renumbered Art. 34.1 in 2009)(regardless of the law applicable to the tort, [t]he law of the place of the
tortious conduct shall determine whether the tortious conduct was realized by the violation of traffic or
other security regulations.); Tunisian Code of Private International Law of 1998, Art. 75 (regardless of
the otherwise-applicable law, the rules of conduct and security in force at the place of the injurious event
are taken into consideration.).
32. See Hague Convention on the Law Applicable to Traffic Accidents of 1971, Art. 9 (Whatever may
be the applicable law, in determining liability account shall be taken of rules relating to the control and
safety of traffic which were in force at the place and time of the accident); Hague Convention on the Law
Applicable to Products Liability of 1973, Art. 9 (The application of Articles 4, 5 and 6 shall not preclude
consideration being given to the rules of conduct and safety prevailing in the State where the product was
introduced into the market.).
Torts
183
conduct of the conduct-state.33 Obviously, taking account of these rules falls short of actually applying them.34 This is one difference from the American approach to this distinction.
Another difference is that, apparently, the European concept of rules of safety and conduct is
narrower than the American concept of conduct-regulating rules.35
4. Examples fromEach Category

a. Conduct-R egulatingRules
As Babcock stated, rules of the road are a classic example of conduct-regulating rules, or
rules of conduct and safety. They are designed to ensure the safety of the public by defining
permissible and impermissible conduct and by imposing sanctions on violators. This category
is not as small as most commentators assume. It includes not only speed limits and traffic-light
rules, but also rules that prescribe civil sanctions for violating traffic rules, including presumptions and inferences attached to those violations. For example, a rule providing that drivers
involved in collisions while driving intoxicated, or in excess of the speed limit, are presumed
negligent is primarily a conduct-regulating rule, as is a rule providing that, in a rear-end vehicular collision, the driver of the rear car is presumed to be atfault.
Other examples include rules that prescribe safety standards for worksites, buildings, and
other premises. These rules are primarily conduct-regulating, although they may have an
impact on loss-allocation. As Judge Posner noted in a case involving safety standards in a foreign hotel, it would be both nonsensical and dangerous to impose on the hotel operator a duty
to follow the safety standards in force in the home-states of the hotel guests. This would subject
the operator to a hundred different bodies of tort law,36 each imposing potentially inconsistent duties of care. A resort might have a system of firewalls that under the law of some states
or nations might be considered essential to safety and in others might be considered a safety
hazard.37
Rules imposing punitive damages are par excellence conduct-regulating, because their purpose is to punish the individual tortfeasor, as well as to deter other potential tortfeasors, rather
than to compensate the victim.38
Finally, other examples include rules that define certain conduct as tortious, such as interference with contract, or alienation of affections,39 and grant a civil action against theactor.
33. Rome II, Art.17.

34. The Portuguese, Hungarian, and Romanian codifications require the application of the conduct and
safety rules of the conduct-state. In contrast, all the other codifications contain mild admonitions to the
courts to consider or take account of those rules. See S. Symeonides, Codifying Choice of Law8889.
35. For a critique of Rome II on these points, see S. Symeonides, Rome II and Tort Conflicts:AMissed
Opportunity, 56 Am. J.Comp. L. 173, 21115 (2008).
36. Spinozzi v.ITT Sheraton Corp., 174 F.3d 842, 845 (7th Cir.1999).
37. Id.
38. Punitive damages conflicts are discussed infra at 249 et seq.
39. Despite contrary belief, rules granting such an action are not extinct. They exist in Mississippi, North
Carolina, and Utah. For recent conflicts cases involving alienation of affections, see Miller v.Provident
Advertising & Mktg., Inc., 155 So. 3d 181 (Miss. App., 2014), rehg denied (Oct. 14, 2014), cert. denied,
184
b. Loss-DistributingRules
On the loss-distributive side, the following are examples of rules that are primarily loss-
distributive, even if they do have a bearing on conduct:(1)guest statutes;40 (2)rules providing
intra-family or charitable immunity; (3) rules immunizing employers from a tort action, if
they are covered by workers compensation; (4)rules imposing caps on damages, or excluding
certain types of damages, such as for pain and suffering; (5)rules defining the beneficiaries of
wrongful death actions, survival actions, and loss of consortium actions; (6) rules providing
that a tort action does not survive the tortfeasors death; (7)rules dealing with contribution or
indemnification among joint tortfeasors;41 (8) rules providing for no-fault automobile insurance;42 (9)statutes of repose, which protect manufacturers from suits filed after a designated
number of years from the products first use; (10) corporate-successor liability or non-liability
rules; and (11) direct action statutesnamely, statutes that allow the victim to sue the tortfeasors insurer directly.
B. THE VALIDITY OFTHE DISTINCTION:

SEPARATING PURPOSE ANDEFFECT
Implicit in the distinction between conduct-regulating and loss-distributing rules are certain assumptions about state interests and the spatial operation of laws. One assumption is
that a states policy of deterring substandard conduct is implicated whenever such conduct
occurs in, or causes injury within, that states territory, regardless of whether the involved
parties are domiciled there. Another assumption is that, although a states loss-distribution
policy may or may not extend to non-domiciliaries acting within its territory, the policy does
extend to state domiciliaries, even when they act outside the state. In simpler words, conduct-
regulating rules are territorially oriented, whereas loss-distribution rules are usually not territorially oriented.
The above assumptions may or may not be questionable, but what is questionable is the
precision with which one can expect to classify conflicting tort rules into one or the other
of the two categories. Indeed, the line between conduct-regulating and loss-distributing rules
154 So. 3d 33 (Miss. 2015); and cert. denied, 135 S.Ct. 2862 (2015); Hancock v.Watson, 962 So. 2d 627
(Miss. Ct. App.2007), cert. denied, 962 So. 2d 38 (Miss. 2007); Jones v.Swanson, 341 F.3d 723 (8th Cir.
2003); Jones v. Skelley, 673 S.E.2d 385 (N.C. Ct. App. 2009); Oddo v. Presser, 581 S.E.2d 123 (N.C. Ct.
App.2003); Eluhu v.Rosenhaus, 583 S.E.2d 707 (N.C. Ct. App.2003); Norris v.Alexander, 567 S.E.2d 466
(N.C. Ct. App.2002); Cooper v.Shealy, 537 S.E.2d 854 (N.C. Ct. App.2000); Williams v.Jeffs, 57P.3d 232
(Utah Ct. App.2002).
40. Although most states repealed their guest-statutes, two states (Alabama, and Indiana) still have them.
See Ala. Code 32-1-2 and Ind. Code 34-30-11-1. Nebraska was the last state to repeal its guest-statute
in2010.
41. See P. Borchers, The Return of Territorialism to NewYorks Conflicts Law:Padula v.Lilarn Properties
Corp., 58 Alb. L.Rev. 775, 785 (1995) ([p]arties, obviously, can do little to choose their co-tortfeasors,
and thus rules like this have, at most, minimal effect on conduct).
42. See W. Perdue, A Reexamination of the Distinction between Loss Allocating and Conduct-
Regulating Rules, 60 La. L.Rev. 1251, 1255 (2000).
Torts
185
is not always bright. Although some tort rules are clearly conduct-regulating, and some are
clearly loss-distributing, there are many tort rules that do not fit easily into either category.
Indeed, if one focuses only on the effect of a rule, rather than its purpose, then all tort rules
belong to both categories. As Professor Purdue argued, [a]ll tort rules determine who will
bear a loss and thus all are loss-allocating, and all of them are also conduct-regulating, because
[l]oss allocation creates incentives for those who must bear the loss to behave differently than
they would if they did not have to bear the loss.43 For example, a charitable-immunity rule,
such as the one involved in Schultz, has two effects: (1) the loss-allocating effect of relieving
charities from the financial burden of tort liability, and (2) arguably, the conduct-regulating
effect of eliminat[ing] incentives for the tortfeasor to take care[.]44 However, if we focus on
the rules purpose, then its loss-distributing character becomes clear:the reason for adopting
such a rule is not to encourage, or even condone, substandard conduct, but rather to relieve
charities from the financial burden of tort liability.45
Other immunity rules, such as the interspousal or intra-family immunity rules involved
in Haumschild and Emery, are easier to classify, because, besides having a single purpose, they
also have a single effect. Their purpose, as well as their effect, is to: (1) preserve family harmony, (2)protect insurers, or (3)protect the estate or the community property and its creditors. They are neither intended to eliminate the incentive to act carefully, nor do they have that
effect. Like guest-statutes, intra-family immunity rules do not affect ones conduct. A host-
driver does not drive less carefully in a guest-statute state just because of the assurance that, if
he causes an accident, and he survives it, he will be immune from a suit by his guest-passenger.
Likewise, a mother does not drive less carefully in an immunity state just because of the assurance that, if she is involved in an accident, and she survives it, she will be immune from a suit
by her children.
Similarly, a rule that caps compensatory damages may have an effect on the conduct of
some tortfeasors, but that is not the lawmakers purpose. The lawmaker limits the amount of
damages not because the victim is undeserving, but rather because, on balance, the lawmaker
decides to reduce the financial burden on a particular class of tortfeasors. The purpose of the
limitation is not to encourage substandard conduct (which may even harm the lawmakers
themselves), but to reduce the financial burden on the class of people engaging in the particular conductbe they drivers, surgeons, or manufacturers. The purpose is to affix in advance
the financial consequences of conduct that experience tells us will occur and will cause harm.
The lawmaker simply recognizes that:(1)the conduct will occur (people will drive, surgeons
will operate, manufacturers will produce, etc.), (2)some of this conduct will cause injury, and
(3)a decision has to be made as to which class of people will bear the loss, and how much of
it. These loss-allocative decisions are the kinds of value judgments lawmakers make everyday.
43. Id. at1252.
44. Id. at1254.
45. One is on more solid ground in arguing that a non-immunity rule, such as NewYorks rule in Schultz,
is both loss-distributive and conduct-regulating. It is loss-distributive to the extent it imposes financial
responsibility on the actor and provides compensation for the victim, but it can also be conduct-regulating
to the extent it affects the actors conduct by providing an additional incentive to act more carefully. In his
dissenting opinion in Schultz, Justice Jasen took this position, but the majority rejected it rather summarily. Asubsequent New Jersey case adopted Jasens position in interpreting a Pennsylvania non-immunity
rule. See P.V. ex rel. T.V.v.Camp Jaycee, 962 A.2d 453 (N.J. 2008), discussed infra at 198 note 107.
186
Finally, moving to the conduct-regulating category, a rule that imposes punitive damages is
another example of a rule that has a dual effect, but a single purpose. As the word punitive suggests, the purpose of the rule is to punish the individual tortfeasor, as well as to deter other potential tortfeasors, rather than to compensate the victim, who, ex hypothesi, is made whole through
compensatory damages. Do punitive damages have an impact on loss-allocation? Absolutely!
Large punitive-damages awards can drive a whole industry to the ground and may cause a massive
transfer of wealth from the insurance industry to the plaintiffs bar. But this transfer of wealth is
simply an effect of the punitive damage rule, not its purpose, which is to deter egregious conduct.46
C. THE MANAGEABILITY OFTHE DISTINCTION:

IDENTIFYING THEPRIMARY PURPOSE
Admittedly, some tort rules, especially those involved in triangular relationships, may have a
mixed purpose, that is, a purpose that is both loss-allocative and conduct-regulating. The law is
too complex a phenomenon to be viewed through such monodimensional lenses. Agood example is a dram shop act.47 Adram shop act is a statutory or judicial rule that imposes civil liability
on a tavern owner for serving alcohol to an apparently intoxicated patron who causes injury to a
third person. In adopting a dram shop act, a state may be motivated by both conduct-regulating
and loss-allocating objectives, namely:(1)to incentivize tavern owners to act more carefully and
refrain from serving apparently intoxicated patrons, and (2) to facilitate financial recovery for
victims, by providing them an additional defendant (the tavern owner), who is more likely to be
solvent, and placing on the latter the economic loss of accidents caused by his drunk patrons.48
Other examples include car-owner statutesnamely, statutes that impose vicarious liability on car owners for injuries caused by a driver using the car with the owners consent.
In enacting such a statute, a state may be motivated by both conduct-regulating and loss-
allocating objectives, such as: (1) to discourage car owners from lending their cars to irresponsible drivers, and (2) to facilitate financial recovery for victims, by providing them an
additional defendant (the car owner), and placing on the latter the economic loss of accidents
caused by the driver.49
46. On the other hand, one could argue that a states decision not to impose punitive damages is motivated by loss-allocation factors, for example, protecting an industry from potentially debilitating financial
burdens. See W. Reppy, Codifying Interest Analysis in the Torts Chapter of a New Conflicts Restatement,
75 Ind. L.J. 591, 597 (2000). The author correctly concludes, however, that when two parties from a state
that does not have punitive damages are involved in a tort in a state that imposes punitive damages, the
punitive-damages rule of the latter state should govern, because the conduct-regulating rule here trumps
the contrary loss-distributive rule.Id.
47. Cases involving dram shop acts are discussed infra at 23739, 24445, along with other conduct-
regulating conflicts, because most cases characterize dram shop acts as conduct-regulating.
48. In contrast, in refusing to enact a dram shop actor in enacting an anti-dram shop acta state may
be motivated by loss-allocating, rather than conduct-regulating, considerationsnamely, to shield tavern
owners or social hosts from financial responsibility, rather than to encourage them to act carelessly.
49. Cases involving these statutes are discussed infra at 23940, along with other conduct-regulating
conflicts, because most cases characterize these statutes as conduct-regulating.
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187
In cases involving such mixed-purpose rules, the key is to identify the rules primary purpose, as the New York Court of Appeals instructed in Padula v. Lilarn Properties Corp.50
Section 240 of NewYorks Labor Law imposed on the owner of a building absolute liability
for injury caused by defective scaffolding to a member of the construction crew working on
the building. Six lower court cases characterized this section in three different ways before
NewYorks highest court had the opportunity to consider the matter in Padula. In this case,
a NewYork worker invoked Section 240, in an action filed against a NewYork defendant, for
injuries the plaintiff sustained in Massachusetts, when he fell from the scaffolding while working on the defendants building. After defining conduct-regulating rules as those that have
the prophylactic effect of governing conduct to prevent injuries from occurring51 and loss-
distributive rules as those that prohibit, assign, or limit liability after the tort occurs, such as
charitable immunity statutes,52 the Padula court acknowledged that Section 240embod[ied]
both conduct-regulating and loss-allocating functions[.]53 Nevertheless, the court concluded
that the primary function of Section 240 was to regulate conduct.54 Consequently, Section
240 was inapplicable in this case
which, like Babcock, involved exclusively New York
partiesbecause conduct-regulating rules do not apply to conduct and injury occurring in
anotherstate.
Thus, the Padula court provided a simple answer to a complex question:whenever a particular rule embodies both conduct-regulating and loss-distributing functions, one should
focus on the rules primary purpose, and proceed accordingly. The courts answer may not be
profound, but it is sensible and practical. It enunciates a criterion for distinguishing between
the two categories, and it invites the parties (and their experts) to present their best arguments. The criterion may appear vague, but it is no more so than the criteria courts employ
in so many other situations in resolving interstate or domestic law conflicts. Despite contrary opinion, the process of determining the purpose, function, or policy underlying a
rule of law is neither futile nor unworthy of the effort. The process of teleological interpretation, so integral to most modern American choice-of-law approaches, is admittedly difficult
at times, but attorneys and their tort experts can certainly handle this difficulty, and many
of them would prefer it to the old mechanical rules that lead inexorably to a preordained
result.
These difficulties are inherent in any teleological approach, but they are a fair price to pay
in return for a rational resolution of conflicts that such an approach promises. Moreover, these
difficulties should not be overestimated. They are no more insurmountable than, for example,
50. 644 N.E.2d 1001 (N.Y.1994).

51. Id. at1002.
52. Id. at1003.
53. Id. The conduct-regulating function was requiring worksites be made safe, while the loss-distributing
function was the imposition of strict and vicarious liability [on] the owner of the property for failure to
provide a safe worksite.Id.
54. See id. (characterizing 240 and its companion 241 as primarily conduct-regulating rules, requiring that adequate safety measures be instituted at the worksite, and holding them inapplicable to the
Massachusetts accident).
188
the difficulties of distinguishing between substance and procedure55 or, in some close cases,
distinguishing between tort and contract actions.56
Although this comparison may evoke the difficulties encountered in the characterization
process under the traditional theory, the similarity is only superficial. The traditional theory
sought to ascribe labels to rules without regard to their underlying purposes. In contrast, the
process of distinguishing between conduct-regulating and loss-distributing rules seeks to
ascertain the rules purpose, and it does so in a much more nuanced and focused manner. It
asks the right questions and, more important, it is expected to provide reasons for the answers
to which it arrives. In any event, as Judge Weinstein observed, this distinction, far from being
a rigid one, is no more than a proxy for the ultimate question of which state has the greater
interest in having its law applied[]57 to the litigation athand.
D. THE PRACTICAL USE OF THE DISTINCTION

Indeed, at least in a judicial choice of law,58 the above distinction does no more than to focus
the parties and the courts attention on the right questions, as well as to draw the lines within
which the debate will take place. It stands for the simple proposition that in conflicts between
conduct-regulation rules, one should focus on the place (or places) of conduct and injury,
whereas in conflicts between loss-distribution rules, one should also focus on the parties connections, if any, with other states. Surely, in hard cases or cases in which the distinction is
unworkable, the lines may be adjusted or even stepped-over. But it is still preferable to have soft
or adjustable lines than no lines atall.59
55. See Borchers, supra note 41, at 784 (Many important and fundamental legal distinctions involve
large areas of overlap. The distinction between substance and procedure is one good example.).
56. As Professor Baxter observed, the process of distinguishing between the two categories will sometimes be difficult, and reasonable disagreement may exist regarding the objectives of various internal
rules. The process, however, is a familiar one rather than a unique concomitant of the choice analysis
proposed. W.Baxter, Choice of Law in the Federal System, 16 Stan. L.Rev. 1, 12, n.28 (1963).
57. Hamilton v.Accu-Tek, 47 F.Supp.2d 330, 337 (E.D.N.Y.1999).
58. Even when the distinction is codified, as in the Louisiana codification, the distinction is not so rigid as
to leave no flexibility. In many instances, the codifications two articles that provide for conduct-regulation
(3543) and loss-distribution (3544) conflicts, respectively, lead to the same result, albeit for different reasons. See S. Symeonides, Louisiana Exegesis, 73132. For those instances in which the two articles lead to
a different result (such as a Babcock-type case, in which an accident in one state involves a tortfeasor and
a victim domiciled in another state), the court has flexibility to deviate from the legislatively prescribed
result by utilizing the escape clauses the codification provides. See id. 73334; 70405,n.147.
59. Precisely because this distinction is only a proxy for the ultimate question, Accu-Tek, 47 F.Supp.2d
at 337, many commentators justifiably prefer to move these lines in a direction that conforms to their
conflicts philosophy. For example, Professor Reppy, who generally subscribes to this distinction, suggests that if a court is unable to determine whether a tort rule of law is primarily conduct-regulating or
primarily loss-distributive, the latter [should be] the default classification. W. Reppy, Codifying Interest
Analysis in the Torts Chapter of a New Conflicts Restatement, 75 Ind. L.J. 591, 597 (2000). Professor
Weintraub, who is skeptical of the whole distinction, proposes that the category of conduct-regulating
rules should be limited to rules intended to regulate conduct in the most immediate manner [such
as] speed limits or right of way. Weintraub, Commentary, 501. Professor Perdue, who argues that most
tort rules are conduct-regulating, acknowledges that acceptance of her argument would lead to a largely
Torts
189
Thus, one can conclude that, despite some difficulties in its application, the distinction
between conduct-regulating and loss-distributing rules provides a useful framework for resolving many tort conflicts.60 It is the proper starting point for determining when to apply the lex
loci and when not toin other words, for delineating the respective scopes of territoriality
and personality of the laws. To a large extent, the story of private international law can be
described as a contest between these two grand principles, with the pendulum swinging from
one principle to the other at different periods in history. In the United States, Joseph Beale
pulled the pendulum all the way toward territoriality, and then Brainerd Currie pulled it almost
all the way back toward personality. It is time to acknowledge that neither Beale nor Currie was
entirely wrong or entirely right. It is also time to begin defining the parameters for seeking a
new equilibrium between these two principles.
In this process, it helps to remember that these two principles parallel the two fundamental
objectives of the substantive law of tortsdeterrence and compensationand that contemporary states, although still territorially organized,61 are also welfare states. They seek both to
safeguard the health and safety of people and property within their bounds and to prescribe
modes of financial protection for those endangered.62 When the objectives of one state conflict
with those of another, territoriality is the starting point in conduct-regulation conflicts, and
personality is the starting point in loss-allocation conflicts. To quote Judge Weinstein, once
again, the conduct regulation-loss allocation dichotomy is a proxy for the balancing of competing state interests.63
Many of the cases discussed in the balance of this chapter seem to proceed on this basis.
These cases also reveal that, although it always affectsor should affectthe courts analysis
of the conflicting laws, this distinction affects the outcome in only one category of cases:those
in which the tortfeasor and the victim are domiciled in one state and are involved in a tort
occurring in another state. In these cases, the courts apply:(1)the law of the parties common
domicile, if the conflict is one between loss-distribution rules;64 and (2)the law of the state of
the tort, if the conflict is one between conduct-regulation rules.65 This is not an unimportant
category, either statistically or symbolically. Aside from encompassing a sizeable percentage of
tort conflicts, it is the very category in which the choice-of-law revolution tookplace.
territorial choice of law rule for torts, a development that she would welcome, because it is consistent
with the standard economic view that the primary function of tort law is to provide incentives and deterrence for future behavior. Perdue, supra note 42, at 1258 (footnote omitted).
60.A quarter-century ago, this author contended that, despite the difficulties in its application, this
distinction may be one of the major breakthroughs in American conflicts thought and perhaps one
of its major contributions to international conflicts thought. S. Symeonides, Problems and Dilemmas
in Codifying Choice of Law for Torts:The Louisiana Experience in a Comparative Perspective, 38 Am.
J. Comp. L. 431, 441 (1990). Although acknowledging contrary viewpoints, the author holds the same
viewtoday.
61. D. Cavers, The Choice-of-Law Process 139 (1965).
62. Id.
63. Accu-Tek, 47 F.Supp.2d at341.
190
I II. L O S S - D
I S T R I B U TI ON T ORT CONF L I CT S
A.INTRODUCTION
Logically one should discuss conflicts between loss-distributing rules after examining conflicts
between conduct-regulating rules, for the same reasons that one should discuss reparation only
after establishing culpability, or at least liability. The fact is, however, that almost all the major
cases that constitute the American conflicts revolution involved loss-distribution conflicts, precisely because it is with regard to these conflicts that the territorially based traditional system
proved most deficient. Moreover, even today, loss-distribution conflicts are more common
than conduct-regulation conflicts, either because the laws of the various states are more likely
to differ on loss-distribution than on conduct-regulation issues, or because the latter issues are
not contested from the choice-of-law perspective.
This section focuses on the major loss-distribution conflicts cases decided since the abandonment of the lex loci delicti rule. First, it classifies the cases into eight typical, primary, fact-
law patterns based on: (1) the most common combinations of the pertinent factual contacts
(territorial and personal), and (2)the substantive laws of the contact-states. It then summarizes
and recasts the results of these cases into descriptive choice-of-lawrules.
B. DEFINING THETYPICAL PATTERNS

Unlike conduct-regulating rules, which operate territorially, loss-distributing rules operate in
a more complex mode that focuses more on the individuals involved in the conflict rather
than on the physical location of the events that caused the conflict. Because of its fixation with
territoriality and its one-size-fits-all mentality, the traditional system was unable to recognize
or accommodate this basic reality, and thus precipitated the revolution in tort conflicts. It is
therefore not surprising that one of the common points of reference among all branches of the
revolution has been the acceptance of the parties domicile66 as the focal point around which to
resolve conflicts between loss-distribution rules. In the span of a few years, the parties domicile, which was an irrelevant factor under the lex loci delicti rule, became a primary factor in
loss-distribution conflicts.
However, the new importance of domicile does not mean that the traditional contact of
locus delicti has become irrelevant. Rather, it means that domicile now shares the stage with
the locus delicti, which remains an important, albeit nonexclusive, factor. From a more general
66. As used hereafter, the term domicile includes other equivalent concepts, such as habitual residence,
home state, or, in the case of juridical persons such as corporations, the principal place of business. See,
e.g., Dorsey v.Yantambwe, 715 N.Y.S.2d 566 (N.Y.A.D. 4th Dept. 2000)(holding that the domicile of a
corporate defendant is in the state of its principal place of business; applying the law of that state, which
was also the plaintiff s domicile, to a dispute arising from an accident in another state); Elson v.Defren,
726 N.Y.S.2d 407 (N.Y.A.D. 1st Dept. 2001)(holding that a nationwide rental company that had its principal place of business in NewYork should be treated as a NewYork domiciliary for purposes of applying
the Neumeier rules); Sheldon v.PHH Corp., 135 F.3d 848 (2d Cir. 1998)(accord).
Torts
191
perspective, this development also signifies that territoriality is no longer the exclusive governing principle in the resolution of tort conflicts.
Because many torts are committed across state lines, the locus delicti can be in more than
one state. Rather than artificially place the locus delicti at the place of the last event, proper
analysis should consider both the place of the last eventthe injuryand the place in which
the injurious conduct occurred.67
To summarize, the pertinent contacts for resolving loss-distribution conflicts are: (1) the
parties domiciles, (2) the place of the injurious conduct, and (3) the place of the resulting
injury.68 Thus, if one were to classify loss-distribution conflicts based on factual contacts
alone, one would arrange them into:(1)common-domicile cases arising from torts in another
state, (2)split-domicile cases involving intrastate torts, and (3)split-domicile cases involving
cross-bordertorts.
2. The Content ofthe InvolvedLaws

An important lesson of the modern American conflicts experience is that one cannot resolve
conflicts intelligently and rationally without: (1) considering the substantive content of the
laws of each involved state, and (2)making that content an integral part of the whole choice-
of-law process. Loss-distribution laws may be grouped into two major categories, depending on whether their application benefits the injured party (hereafter victim or plaintiff ),
or the party whose conduct is claimed to have caused the injury (hereafter tortfeasor or
defendant). Based on these categories, loss-distribution conflicts can be grouped into cases
inwhich:
(1) both states laws favor the same party (false conflicts);
(2) each involved state has a law that favors its own domiciliary (hereafter, direct
conflicts);and
(3) each states law favors the domiciliary of the other state (hereafter, inverse conflicts).
In the prevailing conflicts jargon introduced by Brainerd Currie, direct conflicts would be
called true conflicts, and inverse conflicts would be called no-interest or unprovided-for
cases.69 However, even if one agrees with Curries assumptions, his labels for these categories
are problematic, because they prejudge the answer to the basic questionwhether, in fact, a
state has an interest in applying its law to the particular casea question that reasonable minds
67. Of course, in some cases the conduct may have occurred in more than one state, as in products
liability cases in which the product was designed in one state, tested in another, and manufactured in yet
another state. Similarly, in some cases the injury may be in more than one state, as in multistate defamation cases. Nevertheless, in order to keep things relatively simple, the following discussion focuses on
typical cases that do not present these factual complexities.
68. Naturally, the list of contacts could be longer, so as to include, for example, the place of the parties
preexisting relationship, if any. But, for the purposes of this discussion, which is to categorize cases into
primary patterns, rather than to resolve them in a judicial fashion, the list is confined to the primary
contacts.
69. See supra at 10003.
192
often answer differently.70 For this reason, this chapter employs categorizations that are descriptive, but non-prescriptive. Rather than being dependent on subjective assumptions about
each states ostensible or real interests, the terms direct and inverse objectively describe
the content of each states substantive laws:(1)direct conflicts are those in which the application of each states law would favor the party affiliated with that state (each for its own), and
(2)inverse conflicts are those in which the application of each states law favors the party affiliated with the other state (each for the other). These terms are also non-prescriptive, because
they neither prejudge the courts own categorization of the conflict nor its ultimate outcome.
3. The Typical Fact-L aw Patterns

inConflicts Involving TwoStates
Placing the pertinent factual contacts and substantive laws in the mix produces multiple fact-
law patterns, depending on how many states are involved in the conflict. In the most common
cases, which involve only two states, the combination of contacts and laws produces eight typical patterns of loss-distribution conflicts. These patterns are described below and depicted in
Table 13,infra.
(1) Common-domicile casesnamely, cases in which the tortfeasor and the victim are
domiciled in the same state and the tort occurs entirely in another state. Depending
on the content of each states law, these cases can be subdivided into cases in which the
law of the common domicile:
(a) favors the plaintiff (while the law of the state of the tort favors the defendant)
(Pattern1);or
(b) favors the defendant (while the law of the state of the tort favors the plaintiff)
(Pattern2).
(2) Split-domicile intrastate tort casesnamely, cases in which the tortfeasor and the victim are domiciled in different states and in which both the conduct and the injury
occur in the home-state of one of the parties. Depending on which of the two parties is
domiciled in that state, and which party its law favors, these cases can be divided into
four patterns, as follows:
(a) cases in which the conduct and the injury occur in the defendants home-state, and
in which that stateslaw:
(i) favors the defendant (while the law of the plaintiff s home-state favors the
plaintiff) (Pattern3);or
(ii) favors the plaintiff (while the law of the plaintiff s home-state favors the defendant) (Pattern 6);and
70. Indeed, as we shall see later, most courts do not subscribe to Curries assumptions. Many courts do
not employ his labels. But the courts that do employ them often reach different conclusions regarding
each states interests than Currie would have reached. For example, in many inverse conflictswhich
Currie would have labeled as no-interest casesthe courts concluded that one of the involved states did
in fact have an interest, and this conclusion would move these cases from the no-interest category to the
false conflict category.
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193
(b) cases in which the conduct and the injury occur in the plaintiff s home-state, and
in which that stateslaw:
(i) favors the plaintiff (while the law of the defendants home-state favors the
defendant) (Pattern4);or
(ii) favors the defendant (while the law of the defendants home-state favors the
plaintiff) (Pattern5).
(3) Split-domicile cross-border tort casesnamely, cases in which the parties are domiciled in different states and in which the conduct and the injury also occur in different
states. The most common of this broad category of cases are those in which the conduct occurs in the tortfeasors home-state and the injury occurs in the plaintiff s home-
state. Depending on the content of the two states laws, these cases can be subdivided
into cases inwhich:
(a) the law of each home-state favors the domiciliary of that state (Pattern7);or
(b) the law of each home-state favors the domiciliary of the other state (Pattern8).
Obviously, there are several additional variations, especially when one adds a third state to
the mix. Nevertheless, the aforementioned eight patterns are the most common, and the following review is confined to them. Table13, below, depicts these patterns for the readers convenience. In this table, the letters Aand B, in uppercase or lowercase, represent the two states
involved in the conflict. The use of a boldface uppercase-letter indicates that the state represented
by that letter has a higher standard of financial protection for the victim, that is, it favors recovery, while the use of a lowercase-letter indicates that the particular state has a lower standard of
financial protection, that is, it does not allow or limits recovery.71 Ashaded cell means that, as
documented in the following pages, the courts apply the law of the state represented by thecell.
Table13. Patterns inLoss-Distribution Conflicts Involving TwoStates

Pattern#
Defendants
Domicile
1
2
A
a
3
4
5
6
a
a
A
A
7
8
a
A
State of
conduct
State of
injury
Plaintiff s
Domicile
Curries
Classification Classification
Common-Domicile CasesIntrastate Torts

b
b
A
B
B
a
Split-Domicile CasesIntrastate Torts
a
a
B
B
B
B
b
b
b
A
A
b
Split-Domicile CasesCross-Border Torts
a
B
B
A
A
A
False
False
False
False
Direct
Direct
Inverse
Inverse
True
True
Unprovided
Unprovided
Direct
Inverse
True
Unprovided
71. The quoted terms are borrowed from D. Cavers, The Choice of Law Process 139, et passim. (1965).
194
C. COMMON-DOMICILE CASES ARISING

FROMTORTS INANOTHERSTATE
Of the 42 states that have abandoned the lex loci delicti rule, the vast majority (32 cases, or 76percent) did so in cases involving intrastate torts of the common-domicile patternnamely, cases in
which parties domiciled in the same state were involved in a tort that was committed entirely in
another state.72 All but one (or 97percent) of the 32 cases applied the law of the common domicile.73 By the end of 2014, an additional 30 common-domicile cases reached the highest courts of
states that had previously abandoned the lex loci rule, thus raising the total number of supreme
court cases to 62. As shown below, 53 of the 62 cases (or 85percent) applied the law of the common domicile, regardless of which modern choice-of-law methodology the court followed.
As explained above, common-
domicile cases can be divided into two permutations
(depicted in Table14), depending on the content of the law of the common domicile:
(1) Pattern 1 (the Babcock pattern), in which the law of the state of the common domicile
favors recovery more than the law of the state of conduct and injury;and
(2) Pattern 2 (the converse-Babcock pattern), in which the law of the common domicile is
less favorable to recovery than the law of the state of conduct and injury.
Table14. Common-Domicile Cases Arising fromTorts inAnotherState
Pattern #
Defendants domicile State of conduct
Pattern 1 (Babcock)
Pattern 2 (reverse Babcock)
A
A
b
B
State of
Injury Plaintiff s domicile
B
B
A
a
1. Pattern 1:The Babcock Pattern

Thirty-four of the 62 supreme court cases involved Pattern 1 (the Babcock pattern), in
which the law of the state of the common domicile favors recovery more than the law of
the state of conduct and injury. Thirty-three of the 34 cases (or 97percent) applied the law
of the parties common domicile,74 in conflicts involving guest-statutes,75 interspousal or
72. This is a very high number, but it is understandable, because it was primarily in common-domicile
cases that the deficiencies of the lex loci rule became apparent.
73. The only case that applied the law of the place of injury, while abandoning general adherence to the
lex loci delicti rule, was Peters v.Peters, 634P.2d 586 (Haw. 1981). This case arose out of a Hawaii traffic
accident, in which a NewYork domiciliary was injured while riding in a rented car driven by her husband. Her suit against him, and ultimately his insurer, was barred by Hawaiis interspousal immunity law,
but not by NewYorks law. The court applied Hawaii law, because the insurance policy that was issued on
the rental car in Hawaii had been written in contemplation of Hawaii immunitylaw.
74. The only case that did not apply the law of the common domicile, Peters, 634P.2d 586, was factually
distinguishable, because it involved a car rented and insured in the locus state. See supra at note 73.
75. See Babcock v.Jackson, 191 N.E.2d 279 (N.Y. 1963)(NewYork parties, Ontario accident, and guest-
statute); Wilcox v. Wilcox, 133 N.W.2d 408 (Wis. 1965) (Wisconsin parties, Nebraska accident, and
Torts
195
intra-family immunity,76 compensatory damages,77 and other similar conflicts78 between the
loss-distribution rules of the common domicile and the state of the tort.79 In all but three of
those cases, the common domicile was in the forum state.80
In one of the most recent of the 34 cases, Miller v. White,81 the court concluded that the
application of the law of the common domicile correspond[s]with international norms
and promote[s] consistent treatment of accident victims across borders.82 The court applied
Vermont law to an action between Vermont parties, arising out of a single-car accident in
Qubec. Vermonts law allowed a tort action, but Qubecs no-fault law confined the plaintiff
guest-statute); Clark v.Clark, 222 A.2d 205 (N.H. 1966)(New Hampshire parties, Vermont accident and
guest statute); Macey v.Rozbicki, 221 N.E.2d 380 (N.Y. 1966)(NewYork parties, Ontario accident, and
guest-statute); Mellk v.Sarahson, 229 A.2d 625 (N.J. 1967)(New Jersey parties, Ohio accident, and guest-
statute); Wessling v. Paris, 417 S.W.2d 259 (Ky. 1967) (Kentucky parties, Indiana accident, and guest-
statute); Woodward v.Stewart, 243 A.2d 917 (R.I. 1968)(Rhode Island parties, Massachusetts accident,
and guest-statute); Kennedy v. Dixon, 439 S.W.2d 173 (Mo. 1969); (Missouri parties, Indiana accident,
and guest-statute); Tooker v.Lopez, 249 N.E.2d 394 (N.Y. 1969)(NewYork parties, Michigan accident,
and guest-statute); Beaulieu v. Beaulieu, 265 A.2d 610 (Me. 1970) (Maine parties, Massachusetts accident, and guest-statute); First Natl Bank in Fort Collins v.Rostek, 514P.2d 314 (Colo. 1973)(Colorado
parties, South Dakota accident, and guest-statute); Bishop v.Fla. Specialty Paint Co., 389 So. 2d 999 (Fla.
1980)(Florida parties, North Carolina accident, and guest-statute).
76. See Balts v. Balts, 142 N.W.2d 66 (Minn. 1966) (Minnesota parent and child, Wisconsin accident); Armstrong v. Armstrong, 441 P.2d 699 (Alaska 1968) (Alaska spouses, accident in Yukon territory); Schwartz v. Schwartz, 447 P.2d 254 (Ariz. 1968); Jagers v. Royal Indem. Co., 276 So. 2d 309 (La.
1973) (Louisiana parent and child, Mississippi accident); Pevoski v. Pevoski, 358 N.E.2d 416 (Mass.
1976)(Massachusetts spouses, NewYork accident); Nelson v.Hix, 522 N.E.2d 1214 (Ill. 1988)(Ontario
spouses, Illinois accident; Forsman v. Forsman, 779 P.2d 218 (Utah 1989) (California spouses, Utah
accident).
77. See Widow of Fornaris v. Am. Surety Co. of New York, 93 P.R. 28 (P.R. 1966) (Puerto Rico parties, accident in St. Thomas); Miller v. Miller, 237 N.E.2d 877 (N.Y. 1968) (New York parties, Maine
accident); Fox v.Morrison Motor Freight, Inc., 267 N.E.2d 405 (Ohio 1971)(Ohio parties, Illinois accident); Brickner v.Gooden, 525P.2d 632 (Okla. 1974)(Oklahoma parties, accident in Mexico); Gutierrez
v. Collins, 583 S.W.2d 312 (Tex. 1979) (Texas parties, Mexico accident); Wendelken v. Superior Court
in and for Pima Cnty., 671P.2d 896 (Ariz. 1983)(Arizona parties, Mexico accident); Esser v.McIntyre,
661 N.E.2d 1138 (Ill. 1996) (Illinois parties, accident in Mexico); Miller v. White, 702 A.2d 392 (Vt.
1997)(Vermont parties, Quebec accident).
78. See Fabricius v. Horgen, 132 N.W.2d 410 (Iowa 1965) (eligibility for wrongful death action, Iowa
parties, Minnesota accident); Mitchell v. Craft, 211 So. 2d 509 (Miss. 1968) (comparative negligence,
Mississippi parties, Louisiana accident); Sexton v. Ryder Truck Rental, Inc., 320 N.W.2d 843 (Mich.
1982)(car owners liability law, Michigan parties, Virginia accident); OConnor v.OConnor, 519 A.2d 13
(Conn. 1986)(tort action versus administrative remedy, Connecticut parties, Quebec accident); Travelers
Indem. Co. v.Lake, 594 A.2d 38 (Del. 1991)(tort action versus. administrative remedy, Delaware parties,
Quebec accident); Miller v.White, 702 A.2d 392 (Vt. 1997)(tort action versus administrative remedy);
Cribb v.Augustyn, 696 A.2d 285 (R.I. 1997)(statute of limitations treated as substantive).
79.For discussion of the above-cases and tables depicting them, see S. Symeonides, Choice-of-Law
Revolution 14650; Symeonides & Perdue, Conflict of Laws 20309.
80. In three cases, the forum state was the accident state, and the common domicile was in another state.
See the Schwartz, Nelson, and Forsman cases,supra.
81. 702 A.2d 392 (Vt.1997).
82. Id. at397.
196
to an administrative remedy with a much lower recovery. The court characterized the issue
as one that raises competing policies that allocate postevent losses,83 and it concluded that,
with regard to such an issue, the domicile of the parties is the most significant contact bearing on the determination of the relevant law.84 The court found that Qubecs no-fault law was
designed to expedite compensation to victims of automobile accidents, reduce the amount of
tort litigation in Quebec courts, and guarantee relatively low automobile insurance rates.85 The
court reasoned that Qubec had little interest in the rights of action of an United States
citizen against another United States citizen in an United States court.86 In contrast, said the
court, Vermont, as the domicile of both parties and the place of their relationship, as well as
the place where the social and economic repercussions of personal injury will occur, had a
strong interest in applying its law[.]87
The above cases indicate that, in common-domicile cases of the Babcock pattern, American
courts that have abandoned the lex loci rule are virtually unanimous in applying the law of the
parties common domicile.
2. Pattern 2:The Converse-B abcock Pattern

In cases of the converse-Babcock pattern (namely, cases in which the law of the common domicile is less favorable to recovery than the law of the state of conduct and injury), there is also
strong, though not unanimous, support for applying the law of the common domicile. This pattern appeared in six cases in which a court of last resort abandoned the lex loci rule, as well as
in 22 other state supreme court cases decided after the particular court abandoned that rule.88
Twenty of the 28 cases (or 71 percent) applied the pro-defendant law of the common
domicile, rather than the pro-recovery law of the accident state, to cases involving guest-statutes,89 intra-family immunity,90 charitable immunity,91 compensatory damages,92 contributory
83. Id. at394.

84. Id. at 39495.
85. Id. at395.
86. Id. at 39596 (internal quotation marks and citation omitted).
87. Id. at 396 (internal quotation marks and citation omitted).
88.For tables and discussion, see S. Symeonides, Choice-of-Law Revolution 15055; Symeonides &
Perdue, Conflict of Laws 21011.
89. See Fuerste v. Bemis, 156 N.W.2d 831 (Iowa 1968) (Iowa parties, Wisconsin accident); Heinze
v.Heinze, 742 N.W.2d 465 (Neb. 2007)(Nebraska parties, Colorado accident).
90. See McSwain v. McSwain, 215 A.2d 677 (Pa. 1966) (Pennsylvania parties, Colorado accident);
Johnson v.Johnson, 216 A.2d 781 (N.H. 1966)(Massachusetts parties, New Hampshire accident); Veazey
v.Doremus, 510 A.2d 1187 (N.J. 1986)(Florida parties, Florida accident).
91. See Schultz v.Boy Scouts of Am., Inc., 480 N.E.2d 679 (N.Y. 1985)(New Jersey parties, NewYorktort).
92. See Ingersoll v.Klein, 262 N.E.2d 593 (Ill. 1970)(Illinois parties, Wisconsin accident); Collins v.Trius,
Inc., 663 A.2d 570 (Me. 1995)(Canadian parties, Maine accident); Edwards v.Erie Coach Lines Co. 952
N.E.2d 1033 (N.Y. 2011) (Ontario parties, New York accident); Quirion v. Veilleux, 65 A.3d 1287 (Me.
2013)(Qubec parties, Maine accident).
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197
negligence,93 workers compensation immunity,94 tort action versus administrative remedy,95

and other loss-distribution conflicts.96 In 8 of these cases, the common domicile was in the
forum state, while in 11 cases the forum state was the accidentstate.
Eight of the 28 cases reached the opposite result, applying the pro-recovery law of the accident state, rather than the non-recovery law of the parties common domicile, in cases involving guest-statutes,97 intra-family immunity,98 charitable immunity,99 and other loss-distribution
conflicts.100 Of these eight cases, one was factually atypical,101 and six are old and discredited.
They applied the (pro-plaintiff) law of the accident state, but in all of them the accident state
was also the forum state. This fact can explain the outcome much better than any other factor.
Specifically, one of those cases was decided under Kentuckys unapologetically parochial lex fori
approach,102 and five cases were decided under the usually pro-plaintiff, and pro-forum, better-
law approach followed in Minnesota,103 New Hampshire,104 and Wisconsin.105 As noted earlier,
in recent years, the highest courts of those states have lost much of their enthusiasm about
the better-law criterion.106 The eighth case is recent, and it was decided under the Restatement
93. See Issendorf v. Olson, 194 N.W.2d 750 (N.D. 1972) (North Dakota parties, Minnesota accident);
Chambers v.Dakotah Charter, Inc., 488 N.W.2d 63 (S.D.1992) (South Dakota parties, Missouri accident);
Hataway v.McKinley, 830 S.W.2d 53 (Tenn. 1992)(Tennessee parties, Arkansas accident).
94. See Hunker v. Royal Indem. Co., 204 N.W.2d 897 (Wis. 1973) (Ohio parties, Wisconsin accident);
Johnson v.Pischke, 700P.2d 19 (Idaho 1985)(Saskatchewan parties, Idaho accident); Jaiguay v.Vasquez,
948 A.2d 955 (Conn. 2008)(NewYork parties, Connecticut accident).
95. See Myers v.Langlois, 721 A.2d 129 (Vt. 1998)(Qubec parties, Vermont accident); Lessard v.Clarke,
736 A.2d 1226 (N.H. 1999)(Ontario parties, New Hampshire accident).
96. See Hubbard Mfg. Co., Inc. v.Greeson, 515 N.E.2d 1071 (Ind. 1987)(products liability, Indiana parties, Illinois accident); Dillon v.Dillon, 886P.2d 777 (Idaho 1994)(statute of limitations treated as substantive, Saskatchewan parties, Idaho accident).
97. See Conklin v.Horner, 157 N.W.2d 579 (Wis. 1968)(Illinois parties, Wisconsin accident); Milkovich
v.Saari, 203 N.W.2d 408 (Minn. 1973)(Ontario parties, Minnesota accident); Gagne v.Berry, 290 A.2d
624 (N.H. 1972)(Massachusetts parties, New Hampshire accident).
98. See Arnett v. Thompson, 433 S.W.2d 109 (Ky. 1968) (Ohio parties, Kentucky accident); Taylor
v. Bullock, 279 A.2d 585 (N.H. 1971) (Massachusetts parties, New Hampshire accident); Gordon
v.Gordon, 387 A.2d 339 (N.H. 1978)(Massachusetts/Maine parties, New Hampshire accident).
99. See P.V. ex rel. T.V.v.Camp Jaycee, 962 A.2d 453 (N.J. 2008)(New Jersey parties, Pennsylvaniatort).
100. See Martineau v.Guertin, 751 A.2d 776 (Vt. 2000)(tort action versus administrative remedy, Qubec
parties, Vermont accident).
101. This case is Martineau, at id. Although the parties in this case were domiciled in the same state, they
resided together in another state, and the accident occurred in a third state, the law of which was identical
to the residence state. This factor tipped the scales in favor of the accidentstate.
102. See Arnett v.Thompson, 433 S.W.2d 109 (Ky.1968).
103. See Milkovich v.Saari, 203 N.W.2d 408 (Minn.1973).
104. See Taylor v.Bullock, 279 A.2d 585 (N.H. 1971); Gagne v.Berry, 290 A.2d 624 (N.H. 1972); Gordon
v.Gordon, 387 A.2d 339 (N.H.1978).
105. See Conklin v.Horner, 157 N.W.2d 579 (Wis. 1968). In Hunker v.Royal Indemnity Co., 204 N.W.2d
897 (Wis. 1973), the same court distinguished Conklin and reached the opposite result.
106. See supra at 173. In fact, one could argue that the three New Hampshire cases that applied the pro-
plaintiff law of the accident-forum state (see supra note 104) have been overruled by a more recent New
Hampshire case, Lessard v. Clarke, 736 A.2d 1226 (N.H. 1999), which applied Ontarios pro-defendant
198
(Second). It can be explained by the fact that both the equities of the case and the courts sympathies favored recovery.107
Despite their limited contemporary persuasive value, the above cases deserve attention to
the extent that they articulate the interest of the accident state, when it has a pro-recovery
law, to ensure recovery of medical costs resulting from the tort and, to a lesser extent, to deter
wrongful conduct within that state. Although the NewYork Court of Appeals dismissed this
interest in Schultz,108 other courts are more hesitant to reject it, especially when the accident
state is also the forum state.109 This interest does not necessarily trump, but it does rival to some
extent the interest of the parties common-domicile, in denying or reducing recovery. Thus, the
very presence of an interest, even a weak one, on the part of the accident state prevents the easy
classification of reverse-Babcock cases into the classic false conflict paradigm, and it suggests
the need for an appropriate escape clause.
In any event, more than two-thirds of the cases involving the converse-Babcock pattern,
including the most recent ones, have applied the law of the common domicile with little hesitation. For example, in Collins v. Trius, Inc.,110 the supreme court of Maine refused to apply
Maines pro-recovery law to the actions of Canadian passengers on a Canadian bus that was
involved in an accident in Maine. The court noted that [a]lthough Maine ha[d] a significant
interest in regulating conduct on its highways, the issue at stake, recovery for non-economic
loss, was primarily loss-allocating rather than conduct-regulating.111 The court continued as
follows:
[O]ne incontestably valuable contribution of the choice-of-law revolution in the tort conflict field
is the line of decisions applying common-domicile law The superiority of the common domicile as the source of law governing loss-distribution issues is evident. At its core is the notion of
a social contract, whereby a resident assents to casting her lot with others in accepting burdens
as well as benefits of identification with a particular community, and ceding to its lawmaking
law to a case arising from a New Hampshire accident involving Ontario parties, and which specifically
rejected the plaintiff s plea of applying New Hampshire law as the betterlaw.
107. See P.V. ex rel. T.V.v.Camp Jaycee, 962 A.2d 453 (N.J. 2008). The plaintiff in Camp Jaycee was a mentally challenged New Jersey domiciliary, who attended a summer camp in Pennsylvania operated by the
defendant, a New Jersey charitable corporation. While at the camp, the plaintiff was sexually assaulted by
another camp attendee. The plaintiff s suit was barred by New Jerseys charitable immunity rule, but not
by Pennsylvania law. The court held that Pennsylvania law should govern, allowing the plaintiff to recover.
For discussion and critique, see S. Symeonides, Choice of Law in the American Courts in 2008:Twenty-
Second Annual Survey, 57 Am. J.Comp. L.269, 27275 (2009).
109. See Weinberg, supra note 21, at 1665 (arguing that, in such a case, the forum, as place of injury,
has legitimate governmental interests in applying its own remedial law to benefit the nonresident plaintiff, notwithstanding the laws of the joint domicile, [and that] the interested forum not only can, but
should furnish the remedy to the nonresident plaintiff, if only to avoid a discriminatory departure from
its own law.).
110. 663 A.2d 570 (Me.1995).
111. Id. at 573 (internal quotation marks omitted).
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199
agencies the authority to make judgments striking the balance between her private substantive
interests and competing ones of other members of the community.112
3.Summary
The above review indicates that, when both the tortfeasor and the injured party are domiciled
in the same state, judicial opinions converge on the proposition that the state of the common
domicile has a better claim to apply its law to loss-distribution issues than the state of conduct
and/or injury. As the Schultz court stated, in these cases, the locus jurisdiction has at best a
minimal interest in determining the right of recovery or the extent of the remedy, and proper
analysis favors the jurisdiction of common domicile because of its interest in enforcing the
decisions of both parties to accept both the benefits and the burdens of identifying with that
[state] and to submit themselves to its authority.113
Table15 below shows how state supreme courts in the states that have abandoned the lex
loci delicti rule have decided the 62 loss-distribution, common-domicile conflicts.
Table15. Loss-Distribution Common-Domicile Conflicts
Pattern
Babcock pattern
Converse-Babcock
Totals
Cases
34
28
62
Law Applied
Common
domicile
33 (97%)
20 (71%)
53 (85%)
Conduct +
Injury
1 (3%)
8 (29%)
9 (15%)
Pro-P Pro-D
Forum
33
8
41
1
20
20
31
15
46
Non-
forum
3
13
15
As the table indicates, of the 62 common-domicile cases involving loss-distribution conflicts:

Thirty-four cases involved Pattern 1 (the Babcock pattern, in which the law of the common domicile favors recovery more than the law of the state of conduct and injury).
Thirty-three of the 34 cases (or 97percent) applied the pro-recovery law of the parties
common domicile.
In all but 3 of the 33 cases, that state was also the forumstate;
Twenty-eight cases involved Pattern 2 (the converse-Babcock pattern, in which the law
of the common-domicile prohibits or limits recovery more than the law of the state of
conduct and injury).
Twenty of those cases (or 71 percent) applied the pro-defendant law of the parties
common domicile. In 8 of the 20 cases, that state was also the forumstate.
Eight of the 28 cases applied the pro-plaintiff law of the state of conduct and injury. In
seven of the eight cases, that state was also the forum state.
112. Id. The court concluded that, in light of the parties common domicile in Canada, and its other
contact with the case, Canada has the most significant interest with respect to the issue of damages for
non-pecuniary harm in this case[.]Id.
113. Schultz, 480 N.E.2d at685.
200
Altogether, of the 62 common-domicile, loss-distribution conflicts that have reached a

court of last resort in the states that have abandoned the lex loci delicti rule, 53 cases
(or 85percent) applied the law of the parties common domicile, regardless of the particular choice-of-law methodology each court followed. Chart 3, below, depicts these
percentages.114
Pattern 1
Yes, 53%
Pattern 2
Yes, 32%
Pattern 1
No, 2%
Pattern 2
No, 13%
Chart 3. Cases Applying Common-DomicileLaw.
4. A Common-D omicile Rule

a. A Descriptive Rule
These numbers are convincing, especially because they come from courts of all modern methodological and philosophical persuasions. Based on these numbers, one can conclude that,
when faced with loss-distribution common-domicile conflicts, courts that have abandoned the
lex loci delicti rule are very likely to apply the law of the parties common domicile, regardless
of choice-of-law methodology. So much so that one may accurately speak of the emergence of a
de facto common-domicile rule.115 This rule can be phrased in terms that are both content-and
forum-neutral, as follows:
Rule I. When the injured party (victim) and the party whose conduct caused the injury (tortfeasor) are domiciled in the same state, the law of that state governs [whether it favors the victim
(Pattern 1) or the tortfeasor (Pattern2)].
114. These percentages remain essentially unaltered (in fact, they improve by 2percent in favor of the
law of the common domicile), if one counts states rather than cases (i.e., count only one case per state).
Specifically, the 34 cases of Pattern 1 were decided in 28 states, and all but one of them (or 96percent)
applied the pro-plaintiff law of the common domicile. The 28 cases of Pattern 2 were decided in 18 states,
and 13 of them (or 72percent) applied the pro-defendant law of the common domicile. Altogether, 40
cases (or 87percent) out of the 46 cases of both patterns applied the law of the common domicile.
115. Professor Weinberg states that the prevailing faith in the common domicile seems to be a species
of mass mistake, something like the ineradicable common belief that the Declaration of Independence
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201
This rule is phrased in bilateral terms that are not only forum-neutral, but also party-neutral
and content-neutral.116 The rule authorizes the application of the law of the common domicile,
not only when it favors the plaintiff (as in the Babcock pattern) but also when it favors the defendant (as in the converse-Babcock pattern). Although, in cases of the latter pattern, this result is
less than unanimous, on balance it is supported by concepts of mutuality and reciprocity,117 as
well as the notion of a social contract, whereby domiciliaries of the same state agree to accept[]
burdens as well as benefits of identification with a particular community[.]118 For these reasons,
a common-domicile rule that cuts both ways is superior to a unilateral rule. Nevertheless, when
such a rule is cast in statutory language, one must exercise caution not to completely deprive
courts of the necessary flexibility to deviate from the rule in exceptionalcases.
b. Statutory and Quasi-StatutoryRules

The New York Court of Appeals, which led the revolution, has adopted a common-domicile
rule (Neumeier Rule 1),119 as have the Louisiana120 and Oregon121 codifications, and the Puerto
Rico draft code.122 Like the Neumeier rule, the rules of these three codifications are confined
to loss-distribution (as opposed to conduct-regulation) issues. However, unlike the Neumeier
rule, the three rules (1)are confined to disputes between the victim and the tortfeasor and do
is either in the Constitution, or is the Constitution. Weinberg, supra note 21 at 1665. Weinberg agrees
that the law of the common domicile should govern in cases of the Babcock pattern. But, in cases of the
converse-Babcock pattern, Weinberg would apply the law of the common domicile, only if that domicile
is in the forum state. See id. at 166566.
116. Professor Sedler believes that the common-domicile rule emerging from the cases is tied to the
parties affiliation with the forum state. According to Sedler:(1)when the parties common domicile is
in the forum state, the courts apply that states law, regardless of whether it favors recovery; but (2)when
the common domicile is in the non-forum state, the courts apply that states law when it favors recovery,
and they are divided when it does not favor recovery. See R. Sedler, Choice of Law in Conflicts Torts
Cases:AThird Restatement or Rules of Choice of Law? 75 Ind. L.J. 615, 61922 (2000). Professor Posnak
endorses a common-domicile rule that is forum-and content-neutral, but only as a presumptive rule. See
B. Posnak, The Restatement (Second):Some Not So Fine Tuning for a Restatement (Third):AVery Well-
Curried Leflar over Reese with Korn on the Side (or is it Cob?), 75 Ind. L.J. 561, 565 (2000).
117. Schultz, 480 N.E.2d at687.
118. Trius, 663 A.2d at573.
120. La. Civ. Code Art. 3544 (2015) provides that the law of the common-domicile applies to [i]ssues
pertaining to loss distribution and financial protection as between a person injured by an offense or
quasi-offense and the person who caused the injury. For a discussion of this rule (and its exceptions) by
the drafter, see S. Symeonides, Louisiana Exegesis 71525; 75966.
121. See Or. Rev. Stat. 15.440(2)(a) (2015) (providing that the law of the common domicile of the tortfeasor and the victim applies (as between those parties) to issues other than determining the standard of
care by which the injurious conduct is judged). For a discussion of this rule (and its exceptions) by the
drafter, see S. Symeonides, Oregon Torts Exegesis 100014.
122. The Puerto Rico rule is contained in Article 41, which provides that [i]ssues pertaining to loss
distribution and financial protection are governed, as between the injured person and the person who
caused the injury by the law of the state in which both of them were domiciled at the time of the
injury. For a discussion by the rules drafter regarding its origin in Puerto Rican jurisprudence, see S.
Symeonides, Revising Puerto Ricos Conflicts Law:APreview, 28 Col. J.Tranl L. 413, 42126 (1990).
202
not encompass disputes between third parties or joint tortfeasors;123 (2)they encompass cases
in which the tortfeasor and the victim are domiciled in different states, whose laws would produce the same outcome;124 and (3)they are subject to escape clauses, which can prove useful, at
least in converse-Babcock cases.125
c. Foreign Codifications
In the meantime, a similar development occurred in the rest of the world. A review of the
choice-of-law codifications adopted since the 1960s indicatesthat:
(1) Twenty-eight codifications, plus the Rome II Regulation (which is in force in 27 EU
countries), have adopted some form of a common-party-affiliation rule (based on
common domicile, habitual residence, or nationality), as an exception to the lex loci
delicti rule; 126
(2) Six codifications have adopted a closer connection exception to the lex loci rule,
which is likely to lead to the same result as the common-domicile exception;127and
(3) Nine codifications have adopted a unilateral form of the common-affiliation rule,
which is applicable only when both parties are citizens or domiciliaries of the forum
state and the tort occurs in another state.128
One important difference between these codifications and the American common-domicile
rules is that, unlike the American rules, which apply only to loss-distribution issues, the foreign
common-affiliation rules apply in principle to both loss-distribution and conduct-regulation
issues. In this sense, the foreign rules are overbroad, and, as explained elsewhere, this can prove
123. Disputes between joint tortfeasors, or between a tortfeasor and a person vicariously liable for his
acts, are relegated to the flexible choice-of-law approach of Article 3542 of the Louisiana codification,
Sections 15.450 and 15.445 of the Oregon codification, and Article 39 of the Puerto Rico draft codification.
124. See La. Civ. Code Art. 3544(1) (2015); Or. Rev. Stat. 15.440(2)(b) (2015); Puerto Rico draft codif.
Art. 41. This legal fiction, which is particularly useful in cases with multiple victims or defendants, enables
a court to resolve these false conflicts by applying the law of the domicile of either party, unless the general
escape of the codification dictates a different result.
125. The Louisiana escape clause is contained in Article 3547, which authorizes a judicial deviation from
the common-domicile rule, if such deviation is appropriate under the codifications general article. The
Oregon escape clause authorizes deviation from the common-domicile rule, upon a showing that the
application of another law would be substantially more appropriate under the codifications general
approach. Or. Rev. Stat. 15.440(4) (2015). The Puerto Rico escape authorizes a deviation from the
common-domicile rule, if its application would produce a result that is clearly contrary to the objectives
of Article 39, which enunciates the codifications general approach. Puerto Rico draft codif. Art.39.3.
126.For documentation, tables, and discussion, see S. Symeonides, Codifying Choice of Law 7281.
In alphabetical order, the codifications that have adopted such a rule are those of: Albania, Angola,
Argentina, Austria, Belgium, Bulgaria, Cape Verde, China, East Timor, Estonia, Germany, Georgia,
Guinea-Bissau, Hungary, Italy, Japan, South Korea, Lithuania, Macau, Mozambique, Netherlands, Poland,
Portugal, Qubec, Serbia, Switzerland, Tunisia, and Uruguay.
127. See id., citing the codifications of FYROM, Liechtenstein, Slovenia, Taiwan, Turkey, and United
Kingdom.
128. See id., citing the codifications of Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Russia, Tajikistan,
Ukraine, Uzbekistan, and Vietnam.
Torts
203
to be a serious handicap in certain cases.129 This problem is only partly ameliorated in Rome II
and the few codifications that contain a special provision for issues of conduct and safety,130
which can function as a weak exception to the common-domicilerule.
5. Cases Analogous toCommon-D omicileCases

a. Parties Domiciled inStates
with SameLaw
A variation of Patterns 1 and 2 appear when the tortfeasor and the victim are domiciled in
different states whose loss-distribution rules produce the same result. For example, in a case
such as Babcock, if the defendant had been domiciled in New Jersey (rather than in NewYork),
and if New Jersey (like NewYork) did not have a guest-statute, there would be little argument
that the resulting conflict would be as false as Babcock itself, and that it should be resolved by
allowing the action to proceed. Similarly, in a converse-Babcock case, if the two parties had
been domiciled in Ontario and Qubec, respectively, and both of these provinces had a guest-
statute, the resulting conflict would not differ in any material way from the cases of Pattern2.131
Most courts encountering such cases have accepted this line of reasoning, expressly or
implicitly, and have treated them as functionally analogous to common-domicile cases.132 As
noted earlier, the codifications of Louisiana, Oregon, and Puerto Rico, as well as the ALIs
Complex Litigation proposal, treat these cases as analogous to a common-domicile case, without using the term false conflict. For example, the Oregon codification provides that persons
domiciled in different states shall be treated as if domiciled in the same state to the extent that
the laws of those states on the disputed issues would produce the same outcome.133 This legal
fiction is particularly useful in cases with multiple victims or defendants. It enables a court to
resolve these false conflicts by applying the law of the domicile of either party, unless the general escape clause of the codification dictates a different result.134
129. See id. at9192.

130. See id. at8789.
131. Yet, under the Neumeier rules, this result can come about only in a roundabout way. Rule 1 is technically inapplicable, because it requires the parties to be domiciled in the same state for that states law
to apply. Thus, this case falls within the scope of Rule 3, which calls for the application of the law of the
accident state, unless displacing that law would advance the relative substantive law purposes of the
other involved state, or states. Because, in the cases discussed here, both other involved statesthe parties domicileshave the same loss-distribution rule, there is little reason not to displace the lex loci. See,
e.g., Dargahi v.Honda Lease Trust, 370 Fed. Appx. 172 (2d Cir.2010).
132. See S. Symeonides, Choice-of-Law Revolution 16062; Hay, Borchers & Symeonides, Conflict of Laws
89597.
133. Or. Rev. Stat. 15.440(2)(b) (2015). See also La. Civ. Code Art. 3544(1) (2015) ([p]ersons domiciled in states whose law on the particular issue is substantially identical shall be treated as if domiciled
in the same state.); Puerto Rico Draft Art. 41; American Law Institute, Complex Litigation: Statutory
Recommendations and Analysis 6.01(c)(2) and (3)(1994).
134. In contrast, the foreign codifications that adopted a common-domicile rule have not extended it
to this scenario, precisely because they are unwilling to recognize the concept of a false conflict. For a
204
b. Parties toa Preexisting Relationship

A somewhat similar pattern appears when the parties, although not domiciled in the same
state, are nevertheless parties to a preexisting relationship that is centered in a state other than
the state of injury. Foreign codifications have adopted the notion that the law that governs the
parties preexisting relationship displaces the law that would otherwise govern the tort.135
In the United States, neither the literature nor the case law have sufficiently explored this
notion. However, the place in which the parties relationship, if any, is centered is one of the
contacts that courts consider under the Restatement (Second), or other modern approaches, in
selecting the applicable law.136 In some cases, such as workers compensation cases, this contact
carries significant weight.137
D. SPLIT-DOMICILE CASESINTRASTATETORTS
This Section focuses on split-domicile cases involving intrastate tortsnamely, cases in which
the tortfeasor and the victim are not domiciled in the same state, but they are involved in a tort
that occurs entirely in the home state of either the tortfeasor or the victim. Obviously, some of
these cases present the false conflict paradigm, such as when the laws of the two states produce
the same outcome. Such cases need not occupy us here. Instead, the following review focuses
on cases in which the two states have different loss-distribution laws that produce different
outcomes. If the law of each state favors the domiciliary of that state, the case presents a direct
conflict (or what interest analysts call a true conflict). If the law of each state favors the domiciliary of the other state, the case presents an inverse conflict (or what interest analysts call the
unprovided-for, or no-interest paradigm).
1. Direct or True Conflicts

Depending on which domiciliary state has the additional contacts of conduct and injury, direct
conflicts can be further subdivided into two primary patterns (depicted in Table16):
(a) Pattern 3:Split-domicile cases, in which both the conduct and the injury occur in the
tortfeasors home-state, which has a law that favors the tortfeasor;and
(b) Pattern 4:Split-domicile cases, in which both the conduct and the injury occur in the
victims home-state, which has a law that favors the victim.
critique on this point, see S. Symeonides, Rome II and Tort Conflicts: A Missed Opportunity, 56 Am.
J. Comp. L. 173, 196 (2008); S. Symeonides, The American Revolution and the European Evolution in
Choice of Law:Reciprocal Lessons, 82 Tul. L.Rev. 1741, 176162 (2008).
135. See S. Symeonides, Codifying Choice of Law 8183 (with citations to Rome II and the codifications of Albania, Belgium, Bulgaria, Estonia, Germany, Japan, South Korean, Netherlands, Serbia, and
Switzerland).
136. See, e.g., Restatement (Second) 145(2)(d).
137. See Hay, Borchers & Symeonides, Conflict of Laws 101013.
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205
Table16. Split-Domicile CasesIntrastate TortsDirect Conflicts

Pattern #
Defendants Domicile
State of
conduct
State of
injury
Plaintiff s Domicile
a
a
a
B
a
B
B
B
3 (Foster/Cipolla)
4 (Biscoe)
a. Pattern 3:Split-Domicile Cases inWhich theConduct,

theInjury and theTortfeasors Domicile Are ina
State Whose Law Favors theTortfeasor
Foster v. Leggett138 and Cipolla v. Shaposka139 are both well-known, old illustrations of split-
domicile cases falling within Pattern 3.In both cases, the conduct and injury (a traffic accident)
occurred in the defendants home-state, which had a guest-statute favoring the defendant and
his insurer. Foster applied the pro-plaintiff law of the victims domicile (which was also the
forum state), whereas Cipolla applied the pro-defendant law of the defendants domicile, which
was the accident and non-forumstate.
In Foster, the Kentucky court acknowledged that its decision was based exclusively on the
presence of contacts with the forum state qua forum, rather than on any other considerations.
The court stated bluntly that its primary responsibility is to follow its own substantive law[,]
that [t]he basic law is the law of the forum, which should not be displaced without valid
reasons[,] and that if there are significant contactsnot necessarily the most significant
contactswith [the forum], the [forum] law should be applied.140
In Cipolla, a case arising from a Delaware accident involving a Delaware host-driver and
a Pennsylvania guest-passenger, the Pennsylvania Supreme Court reached the opposite result.
It applied Delawares guest-statute, which barred the Pennsylvania passengers suit against the
Delaware driver. The court found that Delawares contacts were qualitatively greater than
Pennsylvanias and that Delawares policiesprotecting host-drivers and ensuring stability
of insurance rateswere more pertinent, because this case involved a Delaware host-driver
and a car insured in that state. Hence, Delaware had the greater interest in having its law
applied[.]141
More meaningful than this questionable comparison of contacts was the courts reasoning
regarding the parties expectations (or at least reliance), which was influenced by Professor
Cavers. [I]t seems only fair, said the court, to permit a defendant to rely on his home state
law when he is acting within that state.142 The court reasoned, Inhabitants of a state should
not be put in jeopardy of liability exceeding that created by their states law just because a visitor
138. 484 S.W.2d 827 (Ky. 1972)(discussed supra 16869; refusing to apply Ohios guest state; allowing an
action under Kentucky law, arising from an Ohio accident involving an Ohio host-driver and a Kentucky
guest-passenger).
139. 267 A.2d 854 (Pa.1970).
140. Foster, 484 S.W.2d at829.
141. Cipolla, 267 A.2d at856.
142. Id.
206
from a state offering higher protection decides to visit there.143 Conversely, [b]y entering the
state , the visitor has exposed himself to the risk of the territory and should not subject persons living there to a financial hazard that their law had not created.144 As the old saying goes,
when in Rome do as Romans do.145 Not because of Roman imperialism, but rather because
this is more in line with both party expectations and state polices.
Without explicitly subscribing to this maxim, but following a similar rationale, the vast
majority of cases falling within Pattern 3 (a total of 32 out of 35 cases)146 have reached the
same result as Cipolla.147 They resisted the temptation of applying the pro-plaintiff law of the
plaintiff s home-state (which in many of these cases was also the forum state), and instead they
applied the pro-defendant law of the defendants home-state, which was also the place of both
the conduct and the injury. Although some of these cases were decided under the same mixed
approach as Cipolla,148 more numerous are the cases decided under other approaches, such
as: the Restatement (Second),149 interest analysis,150 comparative impairment,151 New Yorks
Neumeier Rule 2a;152 and, even the lex-fori153 and the better-law approaches.154
143. Id. at 85657.
144. Id. at 856 (quoting D. Cavers, The Choice-of-Law Process 14647 (1965)).
145. Bledsoe v.Crowley, 849 F.2d 639, 647 (D.C. Cir. 1988)(Williams, J., concurring).
146. The three cases that reached the opposite result are:Foster, supra; Elder v.Perry Cnty. Hosp., 2007
WL 2685007 (Ky. Ct. App. Sept. 14, 2007)(unpublished; decided under Kentuckys lex fori approach); and
Sinnott v.Thompson, 32 A.3d 351 (Del. 2011)(decided under the Restatement (Second)).
147.For tabular presentation, see Symeonides & Perdue, Conflict of Laws 260. For discussion, see
Symeonides, Choice-of-Law Revolution 16571; Hay, Borchers & Symeonides, Conflict of Laws 90410.
148. See Shuder v.McDonalds Corp., 859 F.2d 266 (3d Cir. 1988); Blakesley v.Wolford, 789 F.2d 236 (3d
Cir. 1986); Evans v.Valley Forge Convention Ctr., 1996 WL 468688 (E.D. Pa. Aug. 15,1996).
149. See Casey v.Manson Const. & Engg Co., 428P.2d 898 (Or. 1967); Grover v.Isom, 53P.3d 821 (Idaho
2002); Malena v. Marriott Intl, Inc., 651 N.W.2d 850 (Neb. 2002); Byrn v. Am. Universal Ins. Co., 548
S.W.2d 186 (Mo.App.1977); Marion Power Shovel Co. v.Hargis, 698 So. 2d 1246 (Fla. App.3 Dist. 1997);
Ricci v. Alternative Energy Inc., 211 F.3d 157 (1st Cir. 2000); Bowman v. Koch Transfer Co., 862 F.2d
1257 (6th Cir. 1988); McBride v.Whiting-Turner Contracting Co., 1993 WL 489487 (Del. Super. Oct. 21,
1993)aff d., 645 A.2d 568 (Del.1994).
150. See Eger v.E.I. Du Pont DeNemours Co., 539 A.2d 1213 (N.J. 1988); Bledsoe v.Crowley, 849 F.2d
639 (D.C. Cir. 1988); Herbert v.District of Columbia, 808 A.2d 776 (D.C. 2002); Jones v.Clinch, 73 A.3d
80 (D.C. 2013); Warriner v.Stanton, 475 F.3d 497 (3d Cir. 2007); Lebegern v.Forman, 339 F.Supp.2d 613
(D.N.J. 2004); Amoroso v.Burdette Tomlin Memorial Hosp., 901 F.Supp.900 (D.N.J.1995).
151. See Tucci v.Club Mediterrane, S.A., 107 Cal. Rptr. 2d 401 (Cal. App.2001).
152. See Cooney v.Osgood Mach., Inc., 612 N.E.2d 277 (N.Y. 1993); Barkanic v.General Admin. of Civil
Aviation of the Peoples Republic of China, 923 F.2d. 957 (2d Cir. 1991); Bankers Trust Co. v.Lee Keeling
& Assocs., Inc., 20 F.3d 1092 (10th Cir. 1994); Kranzler v.Austin, 732 N.Y.S.2d 328 (N.Y. Sup. Ct. 2001);
Feldman v. Acapulco Princess Hotel, 520 N.Y.S.2d 477 (N.Y. Sup. Ct. 1987); Mascarella v. Brown, 813
F. Supp. 1015 (S.D.N.Y. 1993); Pascente v. Pascente, 1993 WL 43502 (S.D.N.Y. Feb. 16, 1993); Ditondo
v. Natl Rent-A-Fence, 2004 WL 1242742 (N.D.N.Y. June 3, 2004); Reale by Reale v. Herco, Inc., 589
N.Y.S.2d 502 (N.Y. App. Div. 1992); Miller v.Bombardier, Inc., 872 F.Supp.114 (S.D.N.Y. 1995); Boxer
v.Gottlieb, 652 F.Supp.1056 (S.D.N.Y. 1987); Venturini v.Worldwide Marble & Granite Corp., 1995 WL
606281 (S.D.N.Y. Oct. 13,1995).
153. See Motenko v.MGM Dist., Inc., 921P.2d 933 (Nev. 1996); Reichwein v.Jackson Purchase Energy
Corp., 397 S.W.3d 413 (Ky. App.2012), review denied (May 15,2013).
154. See Benoit v.Test Sys., Inc., 694 A.2d 992 (N.H. 1997); Reed v.Univ. of North Dakota, 543 N.W.2d
106 (Minn. App.1996).
Torts
207
Casey v. Manson Const. & Engineering Co.155 is representative of cases decided under the
Restatement (Second). In Casey, a Washington defendant, acting in Washington, caused injury
to an Oregon domiciliary. The victims wife sued the defendant in Oregon for loss of consortium, a remedy available in Oregon but not Washington. The Oregon court applied Washington
law, reasoning that Washington defendants should not be required to accommodate themselves to the law of the state of any traveler whom they might injure in Washington; and that
Washingtons interest in the matter, which was protective of Washington defendants, was paramount to Oregons interest in having its resident recover for her loss.156
Bledsoe v.Crowley,157 a medical malpractice case, is representative of cases decided under
interest analysis. The District of Columbia court refused to apply the Districts pro-plaintiff
law in the action of a D.C. domiciliary. Instead, the court applied the pro-defendant law of
Maryland, where the medical services were rendered, because that state was the jurisdiction
with the stronger interests.158 Aconcurring judge would have accorded this result the status
of an all-encompassing rule for medical malpractice conflicts. After pointing out that patients
are inherently on notice that journeying to new jurisdictions may expose them to [unfavorable]
rules, the judge concluded that [t]he maxim When in Rome do as Romans do bespeaks the
common sense view that it is the traveler who must adjust.159
In Warriner v.Stanton,160 another medical malpractice case, arising out of a procedure in
Delaware and decided under New Jersey conflicts law, the court refused to apply New Jerseys
pro-plaintiff statute of limitation, noting that the New Jersey plaintiff elected to travel to
Delaware from 1989 until 1998 for specialized medical treatment161 in that state. It is only
fair, said the court, that the law of the state to which the patient has voluntarily traveled, and
in which the doctor has chosen to [practice], be applied to adjudicate the respective rights,
duties, and obligations between the parties. Citizens do not carry their home states laws
with them wherever they go.162 Indeed, the court concluded, it is hornbook law that by
entering the state the visitor has exposed himself to the risks of the territory and should not
expect to subject persons living there to a financial hazard that their law had not created.163
These factors, coupled with Delawares clearly articulated policy interest in regulating malpractice claims through its statute of limitations[,] overwhelmed any interest New Jersey
had in this case by virtue of [plaintiff s] status as a New Jersey resident[.]164
155. 428P.2d 898 (Or.1967).

156. This explanation of the Casey rationale is from a subsequent case, Erwin v.Thomas, 506P.2d 494,
497 (Or. 1973). See also Casey, 428P.2d 898, 908 (Hollman, J., concurring) (Washington citizens carrying on activities in Washington [should not] have to lift their financial protection to an unaccustomed
level and one which would be dependent on the locality from which the injured party might come.).
157. 849 F.2d 639 (D.C. Cir.1988).
158. Id. at641.
159. Id. at 647 (Williams, J., concurring).
160. 475 F.3d 497 (3d Cir.2007).
161. Id. at 50304.
163. Id. (quoting D. Cavers, The Choice of Law Process, 14647 (1965)).
164. Id. at506.
208
It is important to note that, although all 32 cases presented Curries true conflict paradigm,
none of them followed his automatic prescription of applying the law of the forum qua forum.
Although 10 of these cases applied forum law, they based this result on the forum states other
contacts and interests.165 Neither these cases, nor the other 22 cases, followed Curries proscription of weighing state interests or his personal law principle. In fact, 22 of the 32 cases applied
the pro-defendant law of the non-forum state for the benefit of a non-forum defendant and
in all but two of themat the expense of a forum plaintiff.166
If one were to restate these results in the form of a rule, it would provide the following:
Rule II. When the conduct and the injury occur in the tortfeasors home-state and that states
law favors the tortfeasor, that law governs (even if the law of the victims home-state favors the
victim).
The New York Court of Appeals adopted a similar rule (Neumeier Rule 2a167), as did the
Louisiana168 and Oregon codifications.169 The latter took a further step by providing that, if
both the injurious conduct and the resulting injury occurred in a state other than the state in
which either the victim or the tortfeasor were domiciled, the law of the state of conduct and
injury still governs.170 However, this rule is subject to an escape that depends on showing that
the application of that law to a disputed issue under the circumstances of the particular case
will not serve the objectives of that law, in which case that issue will be governed by the law
selected under the codifications general approach.171
b. Pattern 4:Split-Domicile Cases inWhich

theConduct, theInjury and theVictims Domicile
Are ina State Whose Law Favors theVictim
Pattern 4 is the converse of Pattern 3.Here, the conduct and the injury are both in the victims
home-state, which has a law that favors the victim, while the defendants home-state has a law
that favors the defendant. One category of cases involving this pattern are those in which a
165. See Herbert v.District of Columbia, 808 A.2d 776 (D.C. 2002); Benoit v.Test Sys., Inc., 694 A.2d 992
(N.H. 1997); Motenko v.MGM Dist., Inc., 921P.2d 933 (Nev. 1996); Ricci v.Alternative Energy Inc., 211
F.3d 157 (1st Cir. 2000); Evans v.Valley Forge Convention Ctr., 1996 WL 468688 (E.D. Pa. Aug. 15, 1996);
Marion Power Shovel Co. v.Hargis, 698 So. 2d 1246 (Fla. App.3 Dist. 1997); Amoroso v.Burdette Tomlin
Memorial Hosp., 901 F.Supp.900 (D.N.J. 1995); Lebegern v.Forman, 339 F.Supp.2d 613 (D.N.J.2004).
166. See Symeonides & Perdue, Conflict of Laws262.
168. See La. Civ. Code Art. 3544(2)(a) (2015) (applicable to issues of loss-distribution and providing that
when both the injury and the conduct that caused it occurred in the domicile of one party, the law of
that state applies); and Art. 3543 (providing that, regardless of the parties domiciles, the law of the state of
conduct and injury governs issues of conduct regulation). For the corresponding Puerto Rico provisions,
see Puerto Rico draft codif. arts. 41 and40.
169. See Or. Rev. Stat. 15.440(3)(a) (2015).
170. Or. Rev. Stat 15.440(3)(b) (2015).
171. Id. In contrast, the Louisiana and Puerto Rico codifications do not provide a dispositive rule for
these conflicts, relegating them instead to the codifications general residual approach. See La. Civ. Code
Art. 3542(2015) ; Puerto Rico draft codif. art.39.3.
Torts
209
governmental entity, enjoying immunity from suit under the law of its home-state, engages in
conduct in another state that does not accord such immunity, and it causes injurythere.
Nevada v.Hall172 is the most well known of these cases. In Hall, an employee of the University
of Nevada, an entity that enjoyed sovereign immunity under Nevada law, drove to California
on official university business and caused an accident there, injuring a California domiciliary.
The California court refused to recognize Nevadas immunity or Nevadas 25,000-dollar cap
on damages. The court recognized Nevadas interest in protecting the financial well-being of
Nevada entities, but it found this interest to be much weaker than Californias interest in providing full protection to those who are injured on its highways through the negligence of both
residents and nonresidents.173 The court contrasted this case with Bernhard v.Harrahs Club,174
and it concluded that California had an even stronger interest in applying its law, because,
unlike Bernhard in which the defendants conduct had occurred in Nevada, in Hall both the
State of Nevadas activities and the [victims] injuries took place in California.175 The court
continued: By thus utilizing the public highways within ou[r]state to conduct its business,
Nevada should fully expect to be held accountable under California laws.176
Many other state courts have also refused to recognize another states immunity under
similar circumstances.177 Some of those cases involved police car chases that began in one state
and ended in another, causing injury in the latter state. In one such case, Biscoe v. Arlington
County,178 a police officer employed by the defendant, a Virginia county, began chasing a suspected bank robber in that county. The chase continued into the District of Columbia, where
it ended in an accident, injuring the plaintiff, an unsuspecting bystander.179 Under the law of
Virginia, but not D.C., the Virginia county would be immune from liability. The D.C. court
172. 440 U.S. 410 (1979).
173. Hall v.Univ. of Nevada, 141 Cal. Rptr. 439, 442 (Cal. App.1 Dist.1977).
174. 546P.2d 719 (1976). Bernhard is discussed supra at 166 and infra at 244.
175. Hall, 141 Cal. Rptr. at442.
176. Id. The U.S. Supreme Court upheld the constitutionality of this decision after noting, inter alia,
Californias substantial interest in providing full protection to those who are injured on its highways.
Hall, 440 U.S.at 424. Many years later, in Franchise Tax Board. of California v.Hyatt, 538 U.S. 488 (2003),
the shoe was on the other foot. The Supreme Court affirmed the constitutionality of Nevadas refusal to
accord sovereign immunity to a California tax-assessing agency, which was alleged to have caused injury
to a Nevada domiciliary in Nevada, through acts committed in both Nevada and California.
177. See Struebin v.Iowa, 322 N.W.2d 84 (Iowa 1982); Church v.Massey, 697 So. 2d 407 (Miss. 1997);
Wendt v.Osceola Cnty., Iowa, 289 N.W.2d 67 (Minn. 1979); Mianecki v.Second Judicial Dist. Court, in
and for Washoe County, 658 P.2d 422 (Nev. 1983); Peterson v. Texas, 635 P.2d 241 (Colo. App. 1981);
Laconis v.Burlington Cnty. Bridge Commn, 583 A.2d 1218 (Pa. Super. 1990); Skipper v.Prince Georges
Cnty., 637 F.Supp.638 (D.D.C. 1986). For cases involving other issues, but reaching the same result, see
Pelican Point Operations, L.L.C., v.Carroll Childers Co., 807 So. 2d 1171 (La. App.2002); Mihalic ex rel.
Estate of Johnson v.K-Mart of Amsterdam, 363 F.Supp.2d 394 (N.D.N.Y. 2005). Only two cases reached
the opposite result:Lommen v.City of East Grand Forks, 522 N.W.2d 148 (Minn. App.1994) (decided
under Minnesotas better-law approach); and Harris v.City of Memphis, 119 F.Supp.2d 893 (E.D. Ark.
2000) (decided under comity principles). For discussion, see S. Symeonides, Choice-of-Law Revolution
17377.
178. 738 F.2d 1352 (D.C. Cir.1984).
179. The victim, although a Maryland domiciliary, was working in the District of Columbia. The court
treated him as a D.C. domiciliary, because of the special and largely unique interest of the District in
protecting persons who live in the surrounding suburbs and work in the District. Id. at1361.
210
held that D.C.law governed, because the Districts policies would be substantially more seriously thwarted by nonapplication of its law than would those of Virginia[.]180 The court
found that Virginias concern for the economic well-being of its counties [was] not an
especially compelling one.181 In contrast, the Districts interests in deterrence of potential tortfeasors and compensation of injured parties were strongly implicated, because the
District was the site of the most relevant conduct and all the injury, and the defendants acts
created danger to District life and property.182
Even cross-border tort cases in which the tortfeasors conduct occurred outside the victims
home-state and injured the victim in the latter state have applied the pro-plaintiff law of that
state. Although these cases fall within Pattern 7 (discussed infra), they suggest that, a fortiori,
the same result is appropriate in Pattern 4 cases, in which the tortfeasors conduct takes place
within the victims home-state. A person injured in her home-state by conduct in that state
should be able to rely on the protection of that states law, regardless of whether the tortfeasor
is from that state or from another state whose law protects the tortfeasor.
As Cavers explained, the system of physical and financial protection [of the victims
domicile] would be impaired if a person who enters the territory of [that] state were not
subject to its laws.183 That states domiciliaries should not be put in jeopardy in [that state]
simply because [an out-of-stater] had come into [that state] from a state whose law
provides a lower standard of financial protection.184 The out-of-state defendant who is held
to the higher standard of the state of injury is not an apt subject for judicial solicitude. He
cannot fairly claim to enjoy whatever benefits a state may offer those who enter its bounds
and at the same time claim exemption from the burdens.185 Again, [t]he maxim When in
Rome do as Romans do bespeaks the common sense view that it is the traveler who must
adjust.186
If one were to restate the results of Pattern 4 cases in the form of a descriptive rule, it would
provide the following:
Rule III. When the conduct and injury occur in the victims home-state, and that states law favors
the victim, that law applies (even if the law of the tortfeasors home-state favors the tortfeasor).
Neumeier Rule 2b produces the same results as the above-stated rule, as do the Louisiana
and Oregon codifications.187
180. Id. at1362.

181. Id. at1361.
182. Id.
183. D. Cavers, The Choice-of-Law Process 140 (1965).
184. Id. at142.
185. Id. at141.
186. Bledsoe v.Crowley, 849 F.2d 639, 647 (D.C. Cir. 1988)(Williams, J., concurring).
187. For the Neumeier rule, see supra, 15556. For the Louisiana and Oregon codifications, see supra,
notes 16871.
Torts
211
2. Inverse Conflicts or No-I nterest Cases

The converse of Patterns 3 and 4 are cases in which the conduct, the injury, and one partys
domicile are in a state whose law favors the other party. These inverse conflicts can be subdivided into two patterns (depicted in Table17):
(1) Pattern 5:Cases such as Neumeier v.Kuehner188 and Erwin v.Thomas,189 in which the
conduct and the injury occur in the victims home-state, which has a law that favors the
tortfeasor, who is domiciled in another state;and
(2) Pattern 6: Cases such as Hurtado v. Superior Court,190 in which the conduct and the
injury occur in the tortfeasors home-state, which has a law that favors the victim, who
is domiciled in anotherstate.
Table17. Split-Domicile CasesIntrastate TortsInverse Conflicts
Defendants Domicile
State of
conduct
State of injury
5 (Neumeier)
6 (Hurtado)
Pattern #
Under Curries assumptions, especially his personal-law principle, both patterns present
the no-interest paradigm, on the theory that neither state would have an interest in protecting
the domiciliary of the other state. Currie argued that in these cases the court should apply the
law of the forum qua forum. Yet, only Erwin v.Thomas followed Curries prescription as such,
although other cases applied the law of the forum on other grounds.
a. Pattern 5:The Neumeier Pattern

Erwin was an action for loss of consortium filed by a Washington woman, whose husband
was injured in Washington by the conduct of an Oregon defendant. Oregon law favored the
Washington plaintiff by allowing such an action, whereas Washington law favored the Oregon
defendant by denying it. The court concluded that neither state ha[d]a vital interest in the outcome of this litigation.191 Washingtons defendant-favoring policy was not implicated, because
this case did not involve a Washington defendant, and Oregons plaintiff-favoring policy was
not implicated, because this case did not involve an Oregon plaintiff.192 Thus, as Currie said,
188. 286 N.E.2d 454 (N.Y. 1972), discussed supra, 15556.

189. 506P.2d 494 (Or. 1973), discussed infra, 21112.
190. 522P.2d 666 (Cal. 1974), discussed infra, 21415.
191. Erwin v.Thomas, 506P.2d 494, 496 (Or.1973).
192. See id. ([I]t is stretching the imagination more than a trifle to conceive that the Oregon Legislature
was concerned about the rights of all the nonresident married women in the nation whose husbands
would be injured outside of the state of Oregon.).
212
neither state cares what happens,193 and hence, said the court, an Oregon court does what
comes naturally and applies Oregon law.194
A handful of cases have applied the law of the state that had only one contact (the plaintiff s
domicile), and in most of them that state was also the forum state, as in Erwin.195 However,
most of those cases based their choice of law not on the primacy of the lex fori, but rather on
other factors, such as altruistically extending to foreign plaintiffs the benefits of foreign law,196
and holding forum defendants accountable under the forum states standards, even when they
act in another state.197
In contrast to Erwin, the majority of cases falling within Pattern 5 have reached the opposite
result by doing what Neumeier did, even without following its precise rationale.198 These cases
applied the pro-defendant law of the state that, besides being the plaintiff s home-state, was
also the state in which both the conduct and the injury occurred. They did so on a variety of
rationales, ranging from a territorial presumption, with or without reliance on the Restatement
(Second),199 to a different reading of the respective interests of the involved states.
193.Currie, Selected Essays152.
194. Erwin, 506P.2d at 49697. The court also noted that Washington would not object to the application
of Oregon law, because Washington has little concern whether other states require non-Washingtonians
to respond to such claims [by] afford[ing] rights to a Washington woman which Washington does not
afford, so long as a Washington defendant is not required to respond. Id. at496.
195. For cases applying a pro-plaintiff foreign law for the benefit of a forum plaintiff and at the expense
of a foreign defendant, see Erny v.Estate of Merola, 792 A.2d 1208 (N.J. 2002)(applying NewYorks pro-
plaintiff law to a case arising from a New Jersey accident, involving a New Jersey plaintiff and NewYork
defendants); Butkera v.Hudson River Sloop Clearwater, Inc., 693 A.2d 520 (N.J. Super. 1997)(applying
NewYorks non-immunity rule to the action of New Jersey plaintiffs, injured in New Jersey by the acts of
a NewYork charitable corporation, which was immune under New Jerseylaw).
196. See Labree v. Major, 306 A.2d 808 (R.I. 1973) (refusing to applying Massachusettss guest statute to
a case arising from a Massachusetts accident involving a Massachusetts guest and a Rhode Island driver;
applying Rhode Islands pro-plaintiff law, reasoning that, when the defendant is from a pro-recovery state,
the plaintiff should recover, no matter what the law of his residence or the place of the accident. Id. at818.).
197. For example, in Farrell v.Davis Enters., Inc., 1996 WL 21128 (E.D. Pa. Jan. 19, 1996), a Pennsylvania
court applied Pennsylvanias pro-plaintiff law, not because that state was the forum, but rather because the
court assumed that that law was in part designed to deter Pennsylvania tortfeasors, even when they acted
outside Pennsylvania. In Kaiser-Georgetown Community Health Plan, Inc. v.Stutsman, 491 A.2d 502 (D.C.
1985), the D.C.court followed a similar logic, and it applied D.C.s unlimited-damages law, in part, in order
to hold D.C.defendants liable for the full extent of the negligence attributable to them. Id. at 50910.
198. For documentation, see Symeonides, Choice-of-Law Revolution 17984; Hay, Borchers & Symeonides,
Conflict of Laws 92023. Of course, as Neumeier is binding on lower NewYork courts and federal courts
sitting in New York, one can expect to find several cases reaching the same result as Neumeier under
Rule 3.See, e.g., Gillenson v.Happiness Is Camping, Inc., 829 N.Y.S.2d 444 (N.Y. Sup. Ct. 2006); Reale
by Reale v.Herco, Inc., 589 N.Y.S.2d 502 (N.Y.A.D. 1992); Buglioli v.Enter. Rent-A-Car, 811 F.Supp.105
(E.D.N.Y. 1993), aff d without op., 999 F.2d 536 (2d Cir. 1993). However, because Rule 3 does not make
the application of the law of the state of conduct and injury dependent on whether the tort victim is also
domiciled there, coupled with the fact that the rule is merely presumptive, explains why one can also
find cases using the escape contained in Rule 3 and avoiding the law of the state of conduct and injury.
See, e.g., Stevens v.Shields, 499 N.Y.S.2d 351 (N.Y. Sup. Ct. 1986); OBrien v.Marriot Intl, Inc., 2006 WL
1806567 (E.D.N.Y. June 29,2006).
199. See, e.g., W.Dermatology Consultants, P.C.v.VitalWorks, Inc., 78 A.3d 167 (Conn. App.2013), cert.
granted, 81 A.3d 1182 (Conn.2013).
Torts
213
For example, in Waddoups v. Amalgamated Sugar Co.,200 which was decided under the
Restatement (Second), the Utah Supreme Court held that because both the critical conduct
and the resulting injury occurred in Idaho, and the plaintiffs were domiciled there, Idaho had
the most significant relationship, and thus its law should govern. In Miller v.Gay,201 (a guest-
statute conflict presenting the converse pattern from Cipolla),202 the Pennsylvania court concluded that neither states relationship was more significant, and that reliance on state interests
could not resolve the conflict. The court quoted Cipollas statement that defendants acting in
their home-state should not be put in jeopardy of liability exceeding that created by their
states laws just because a visitor from a state offering higher protection decides to visit there.203
The Miller court turned this statement around, by concluding that inhabitants of a state (here
Delaware) should not be accorded rights not given [to] them by their home states, just because
a visitor from a state offering higher protection decides to visit there.204
Nodak Mutual Insurance Co. v. American Family Mutual Insurance Co.205 and Boomsma
v.Star Transport, Inc.206 illustrate that even cases decided in better-law states may end up applying the pro-defendant law of the accident state in Neumeier-type situations. Nodak involved
an insurance subrogation dispute, arising from a North Dakota accident involving a North
Dakota driver and a Minnesota driver. North Dakota law favored the Minnesota insurer, while
Minnesota law favored the North Dakota insurer. Predictably, each insurer invoked the law of
the other state. The North Dakota insurer argued that Minnesota law should govern, because
Minnesota had a strong interest in not allowing its insurers to recover no-fault benefits from
out-of-state insurers[,] under another states law so as to prevent those insurers from receiving
a windfall.207 The court turned the argument around, by pointing out that, if Minnesota law
were applied, then it would be the North Dakota insurer that would receive a windfall, because
the insurer would avoid paying what was due under North Dakota law. In the end, the court
applied North Dakota law, in part because, in the absence of special circumstances, the state
where the accident occurred has the strongest governmental interest[.]208
In Boomsma, a Wisconsin federal court applied Wisconsins pro-defendant law, rather than
Illinois pro-plaintiff law, to a wrongful death action arising from a Wisconsin accident involving
Wisconsin victims and an Illinois driver. While acknowledging that Wisconsins cap on wrongful death damages was not intended to protect foreign defendants, the court concluded that
Wisconsin law should govern, because the plaintiffs failed to rebut the Second Restatements
lex loci presumption. After noting that the plaintiffs had no justified expectation that Illinois
law would apply to their claims[,] the court observed that the application of Illinois law would
200. 54P.3d 1054 (Utah2002).
201. 470 A.2d 1353 (Pa. Super. Ct.1984).
202. Miller arose out of a Delaware accident involving a Pennsylvania host-driver and a Delaware guest-
passenger. Delaware, but not Pennsylvania, had a guest-statute. The court applied the Delaware guest-
statute, barring the action.
203. See supra, at 20506, text at footnote 143.
204. Miller, 470 A.2d at1356.
205. 604 N.W.2d 91 (Minn.2000).
206. 202 F.Supp.2d 869 (E.D. Wis. 2002)(decided under Illinois conflictslaw).
207. Nodak, 604 N.W.2d at 95 (emphasis in original).
208. Id.at96.
214
endorse a kind of lottery system for Wisconsin plaintiffs injured in Wisconsin in which [t]
he winners would be those injured by tortfeasors from other states that do not cap wrongful death damages [and] [t]he losers would be those injured by fellow Wisconsinites[.]209
b. Pattern 6:The Hurtado Pattern

As said above, cases falling within Pattern 6 also qualify as inverse conflicts, insofar as each
states law favors a litigant not domiciled in that state. But whether they also qualify as no
interest cases is more debatable here than in Pattern 5, because in Pattern 6 cases the law of
the state of the conduct and injury favors recovery. If the court interprets that law as motivated
by a policy of deterrence, then the pro-recovery state becomes interested in applying its law, in
order to deter that conduct. Such an interpretation converts a potential no-interest case into
a false conflict. Right or wrong, this was precisely the interpretation of the California court in
Hurtado v.Superior Court.210
Hurtado was a wrongful death action filed by the survivors of a Mexico domiciliary, who
was killed in a California accident caused by the negligence of a California driver. Mexico, but
not California, limited the amount of wrongful-death damages. Under Curries personal-law
principle, this would have been a no-interest case. The court followed this principle when it
concluded that Mexico did not have an interest in applying its defendant-protecting limited-
damages rule to non-Mexican defendants at the expense of Mexican plaintiffs.211 Based on the
same principle, the court could have concluded that California also did not have an interest
in applying its pro-plaintiff rule for the benefit of non-California plaintiffs at the expense of
California defendants. However, the court found that the California rule was designed to deter
negligent conduct in California. The court stated that Californias primary purpose in creating a cause of action for wrongful death was not so much to compensate the victim as to deter
the kind of conduct within its borders which wrongfully takes life[,] and that the unlimited-
damages aspect of the rule simply strengthen[ed] the deterrent aspect of the civil sanction[.]212
Thus, the court essentially reclassified the California rule as conduct-regulating. Having
done so, the court could not avoid the conclusion that California had an interest in applying
the rule. As the court stated,
[W]hen the defendant is a resident of California and the tortious conduct . . . occurs here,
Californias deterrent policy of full compensation is clearly advanced by application of its own
law. . . . California has a decided interest in applying its own law to California defendants who
allegedly caused wrongful death within its borders.213
209. Boomsma, 202 F.Supp.2d at879.

210. 522P.2d 666 (Cal. 1974). For a critique of Hurtado on this issue, see W. Reppy, Eclecticism in Choice
of Law:Hybrid Method or Mishmash?, 34 Mercer L.Rev. 645, 699 (1983).
211. That law was designed to protect only Mexican defendants from excessive financial burdens or
exaggerated claims. Hurtado, 522P.2d at670.
212. Id. at672.
213. Id. For another California case applying Californias pro-plaintiff law (the Labor Code) for the benefit of foreign plaintiffs, and at the expense of a California defendant, for conduct and injury in California,
see Sullivan v.Oracle Corp., 254P.3d 237(Cal.2011).
Torts
215
Thus, what might have been a no-interest case became a false conflict.
The same was true in Jett v. Coletta,214 a medical malpractice action filed by an Idaho
domiciliary and arising out of medical services rendered in a New Jersey hospital. The New
Jersey court found that, although Idaho had no interest in applying its limited-damages
rule to protect New Jersey defendants, New Jersey had a strong interest in applying its
unlimited-damages law, so as to: (1) deter[] negligent conduct in the medical profession,
(2)promot[e]the competence of its medical practitioners, and (3)ensur[e] that visitors to
the state receive full compensation for their injuries[,] particularly when the visitors presence is nonfortuitous.215
Other courts have reached the same conclusion and the same result. For example, in
Villaman v.Schee,216 the court found that Arizonas unlimited-damages rule was partly designed
to deter wrongful conduct, and thus Arizona had an interest in applying the rule to an Arizona
accident involving Arizona defendants and Mexican plaintiffs. Similarly, in Arcila v.Christopher
Trucking,217 an action filed by New Jersey plaintiffs against Pennsylvania defendants, arising out
of a Pennsylvania accident, a Pennsylvania court applied Pennsylvanias pro-plaintiff compensatory damages law, rather than New Jerseys pro-defendant law. The court reasoned that the
application of New Jersey law would not promote New Jerseys interest in protecting defendants, but would impair Pennsylvanias interest in deterring tortious conduct within its
borders.218 The court also noted that, because the defendants were Pennsylvania domiciliaries
and had acted in Pennsylvania, they were on noticeat least constructivelyof Pennsylvanias
law governing remedies for injuries caused by negligent conduct.219
c. Summary andRule
The majority of cases falling within Patterns 5 and 6 applied the law of the state that had three
of the four pertinent contactsnamely, the conduct, the injury, and one partys domicile. The
results are more uniform in the Hurtado pattern (#6) than in the Neumeier pattern (#5), but the
numbers are not high enough as to yield a categorical rule. Neumeier Rule 3 submits both patterns to law of the state of injury, without requiring the concurrence of any additional contacts
in that state, such as the domicile of one party or the occurrence of the conduct.220 But Rule 3
also contains an escape clause, which allows the application of another law, if doing so would
advance the relevant substantive law purposes without impairing the smooth working of the
214. 2003 WL 22171862 (D.N.J. Sept. 22,2003).

215. Id. at *3. The plaintiff was spending the summer in New Jersey when she was taken to the New
Jersey hospital. The court also found that New Jerseys contacts were more substantial than Idahos
were, and thus New Jersey had a much stronger relationship and a much greater incentive than Idaho
to apply its law[.] Id.at*4.
216. 15 F.3d 1095 (9th Cir. 1994)(unpublished opinion).
217. 195 F.Supp.2d 690 (E.D. Pa.2002).
218. Id. at694.
219. Id. at695.
220. Rule 3 was initially proposed for traffic accident cases, in which the conduct and the injury occur in
the same state, but this is no longer a requirement, as Schultz extended the Neumeier rules to other torts,
including cross-bordertorts.
216
multistate system or producing great uncertainty for litigants.221 In contrast, the Louisiana
and Oregon codifications are drafted narrowly, so as to capture only cases in which the state of
injury has the two additional contacts of being the state of conduct and the domicile of either
the tortfeasor or the victim.222 Both codifications contain escapes that allow the application of
another law in appropriate cases. With the same understanding that an escape should be available in appropriate cases, one can support the followingrule:
Rule IV. When both the conduct and the injury occur in the home-state of one of the parties,
that states law applies (even if it does not favor that party).
This is a forum-neutral, jurisdiction-selecting rule that is bound to encounter criticism,

especially in cases falling within the Neumeier pattern (Pattern 5). Interest analysts would
be particularly critical, if only because this rule does not follow Curries prescription that
so-called no-interest cases should be resolved by resorting to the lex fori. However, by and
large, the courts have already rejected that prescription. For example, most of the cases that
chose forum law based the choice on the existence of affirmative forum interests, forum contacts, or factors other than Curies rationale of either the primacy or the residuality of the
lexfori.
Professor Louise Weinberg takes the view that it is unwise to protect the defendant if his
own state would not[,] as the above rules do in the Neumeier pattern cases.223 On the other
hand, it is not unwise to protect a plaintiff whose own state does not protect her, because the
plaintiff-favoring law in an unprovided-for case is likely, at least, to reflect general policies both
states share [such as] favoring compensation, deterrence, and risk-spreading.224 In contrast, pro-defendant laws often consist of [d]efenses [that] embody special local concerns
that may not reflect substantive policies that are as widely shared.225 If this is true, then, as
Weinberg argues, the application of the pro-plaintiff law of the defendants home-state serves
the above common policies, whereas the application of the pro-defendant law of the plaintiff s
home-state defeats for no reason the plaintiff s presumptively meritorious claim,226 and it is
an obvious denial of material justice.227
Professor Robert Sedler agrees that the case law supports the above rule for cases of the
Hurtado pattern, and he proposes a similar rule.228 For cases of the Neumeier pattern, Sedler
221. Neumeier Rule 3, supra at 156.

222. See La. Civ. Code 3544(2)(a) (2015) ; Or. Rev. St. 15.440 (3)(a) (2015).
223.Weinberg, supra note 21, at1651.
224. Id.
225. Id.
226. Id.
227. Id. at1650.
228. See R. Sedler, Choice of Law in Conflicts Torts Cases:AThird Restatement or Rules of Choice of
Law?, 75 Ind. L.J. 615, 628 (2000) (When a plaintiff from a non-recovery state is involved in an accident
with a defendant from a recovery state, and the accident occurs in the defendants home state, recovery
will be allowed.). For similar rules, see B. Posnak, The Restatement (Second):Some Not so Fine Tuning
for a Restatement (Third):AVery Well-Curried Leflar over Reese with Korn on the Side (or is it Cob?),
75 Ind. L.J. 561, 565 (2000).
Torts
217
recognizes the split in authority,229 and he proposes to resolve it by resorting to the common
policy of both states. His solution is grounded on the premise that pro-defendant laws are
exceptions to a general policy of compensation that both involved states otherwise share.
In Neumeier type cases, Sedler argues, the state whose law represents an exception to that
common policy has no interest in having its law applied [and thus] the common policy
should come to the fore, and the exception should not be recognized.230 Thus, in a case such
as Neumeier, the Ontario guest-statute would be the exception to the general compensatory
policy of both Ontario and NewYork. Because Ontario would have no interest in applying its
guest statute to a case that does not involve an Ontario host-driver, the common policy of
both states in favor of recovery should prevail.231
The problem is that not all pro-defendant laws can be characterized as defenses or exceptions to a compensatory policy; even when they are, they can nevertheless reflect affirmative,
deliberate policy choices that cannot be construed away through creative arguments. For example, in Erwin, supra, Washingtons refusal to grant wives an action for loss of consortium was not
a statutory exception to a common-law policy of compensation. Rather, it was the result of the
common-laws stubborn refusal (as understood in Washington) to recognize such an action:the
wife could not maintain such an action at common law, and no statute of this state gives her
such a right[,]232 said the Supreme Court of Washington in refusing to recognize the action. On
the other hand, in Stutsman v.Kaiser, Virginia had abolished by statute the husbands previously
recognized common-law right to sue for his wifes loss of consortium.233 Similarly, in Stevens
v.Shields,234 it was the pro-plaintiff rule that was the exception to the common policy. The common law of both states had followed a pro-defendant rule until the defendants home-state introduced a pro-plaintiff rule through a statute imposing vicarious liability on the defendant.
This is one of those many areas in conflicts law in which there is plenty of room for disagreement, but it is difficult to accept that these, often coincidental, differences in the origin
or wording of these pro-defendant, or pro-plaintiff, rules should determine the outcome of
the conflicts between them. It is also difficult to accept that the outcome should depend on
whether the pro-defendant rule is that of the forum or instead of the other involved state, as
both Weinberg and Sedler seem to suggest. The truth is that, ironically, the no-interest cases
are more problematic for interest analysts than are true conflicts. It is perfectly logical and
consistent to resolve a true conflict by applying the law of the state that has the greatest or
strongest interest, or whose interests would otherwise suffer the most serious impairment. But
this logic falls short in the no-interest cases. Looking for the least uninterested state is certainly not a promising route. This is just another way of saying that interest analysis, which is
229. See Sedler, supra note 228, at 628 (When the accident occurs in the plaintiff s home state, recovery will usually be allowed, but sometimes the courts apply the law of the plaintiff s home state denying
recovery.) (footnote omitted).
230. R. Sedler, The Governmental Interest Analysis to Choice of Law:An Analysis and a Reformulation,
25 U.C.L.A. L.Rev. 181, 181 (1977).
231. Id.
232. Ash v.S.S. Mullen, Inc., 261P.2d 118, 118 (Wash. 1953). Ash was the decision on which Erwin relied
for the proposition that Washington did not allow loss-of-consortium actions.
233. See Stutsman v. Kaiser Found. Health Plan of Mid-Atlantic States, Inc., 546 A.2d 367, 372 (D.C.
App.1988) (citing Va. Code Ann. 55-36).
234. 499 N.Y.S.2d 351 (N.Y. Sup. Ct.1986).
218
built around the notion of state interests, runs into an impasse when neither state has an interest. Consequently, to resolve the conflict, one must look for options outside the framework of
interest analysis, rather than simply recalibrating state interests and searching for phantom
common policies. In this sense, Curries solution of applying the lex fori, as the residual law, is
a solution that lies outside the framework of interest analysis. The same is true with Weinbergs
suggestion of resorting to material justice and applying the law that favors the plaintiff. These
solutions may be good or bad, but they are not consistent with interest analysis.
Once it is understood that the solution to the no-interest conundrum must be sought outside the framework of interest analysis, then other options become more palatable. One option
is to fall back on territorialism, which was the established system before the advent of interest
analysis. In light of this long tradition, it is not unreasonable to apply to these particular inverse
conflicts the law of the state in which both the conduct and the injury occurred, and where one
of the parties is domiciled.
E. SPLIT-DOMICILE CASESCROSS-BORDERTORTS
This Section reviews split-domicile cases in which the conduct occurs in one state and the
injury in another. Examples of such cross-border torts are products liability cases (discussed
infra), as well as cases involving wrongful emissions, defamation, fraud, or other torts that
may be committed from a distance. The most likely scenarios involving two states are those in
which the conduct occurs in the tortfeasors home-state and the injury in the victims home-
state. Depending on the content of each states law, these cases can be divided into two patterns (depicted in Table18):(1)cases in which each state favors its own domiciliary (Pattern
7), and (2)cases in which each state favors the domiciliary of the other state (Pattern8).
Table18. Split-Domicile CasesCross-BorderTorts
Pattern #
Defendants Domicile
State of conduct
State of injury
Pattern 7
Pattern 8
a
A
A
A
B
A
B
A
1. Pattern 7:Cases inWhich the Conduct and

theTortfeasors Domicile Are ina State Whose Law
Favors theTortfeasor, whilethe Injury and theVictims
Domicile Are ina State Whose Law Favors theVictim
Pattern 7 is similar to Patterns 3 and 4, inasmuch as that in all three patterns each states law
favors its own domiciliary. This similarity explains why Pattern 7 poses at least as much of a
direct or true conflict as do Patterns 3 or 4.The difference is that in Patterns 3 and 4 both the
conduct and the injury occur in one of the domiciliary states, whereas in Pattern 7 the conduct
occurs in the tortfeasors domicile, and the injury occurs in the victims domicile. In other
words, both the personal contacts (domiciles) and the territorial contacts (conduct and injury)
are now evenly split, with a concomitant bearing on both state policies and party expectations.
Torts
219
This difference makes Pattern 7 cases more difficult than those of Patterns 3 or 4.In Pattern
3, both the conduct and the injury occur in the tortfeasors home-state, and this explains why
most courts apply the law of that state. In Pattern 4, both the conduct and the injury occur in
the victims home-state, and this explains why most courts apply the law of that state. Pattern 7
is the exact middle point between Patterns 3 and 4, which suggests that Pattern 7 cases could
go in either direction, that is, they could apply the law of either the tortfeasors home-state and
place of conduct, or the victims home-state and place of injury.235
Despite these difficulties, American courts have shown little hesitation before applying the
law of the victims home-state and place of injury, thus equating Pattern 7 cases with Pattern 4
cases. As documented in a study of all cross-border tort conflicts cases decided in all states that
have abandoned the lex loci delicti rule, the vast majority of cases have reached this result.236
This includes cases involving sovereign immunity,237 cross-border medical malpractice,238 other
professional malpractice,239 defamation,240 fraud and deceptive practices,241 and other cross-
border torts,242 as well as more complex disputes between joint tortfeasors.243
235. Although the discussion here is limited to loss-distribution conflicts, the choice is equally difficult
in conduct-regulation conflicts, which are discussed infra at 24247.
236. See S. Symeonides, Choice of Law in Cross-Border Torts: Why Plaintiffs Win, and Should, 61
Hastings L.J. 337, 37479 (2009). The study covers the period between the time that the particular state
abandoned the lex loci rule and 2009. That study (and this section) does not include products liability
cases, which are the focus of another study by the same author. See infra at Chapter 9. The percentages
have not changed since2009.
237. See Franchise Tax Bd. of California v.Hyatt, 538 U.S. 488, 490 (2003); Ensminger v.Cincinnati Bell
Wireless, LLC, 434 F.Supp.2d 464, 466 (E.D. Ky.2006).
238. See Kuehn v. Childrens Hosp., Los Angeles, 119 F.3d 1296 (7th Cir. 1997); Lab. Corp. of Am.
v. Hood, 911 A.2d. 841 (Md. 2006); Pietrantonio v. United States, 827 F. Supp. 458 (W.D. Mich. 1993);
Raflo v.United States, 157 F.Supp.2d 1 (D.D.C.2001).
239. See Bankers Trust Co. v. Lee Keeling & Assoc., Inc., 20 F.3d 1092, 1098 (10th Cir. 1994); David
B.Lilly Co., Inc. v.Fisher, 18 F.3d 1112, 1120 (3d Cir. 1994); Performance Motorcars of Westchester, Inc.
v.KPMG Peat Marwick, 643 A.2d. 39, 4142 (N.J. Super. A.D.1994).
240. See, e.g., Condit v.Dunne, 317 F.Supp.2d 344 (S.D.N.Y.2004).
241. See Bombardier Capital, Inc. v.Richfield Housing Ctr., Inc., Nos. 91-CV-750, 91-CV-502, 1994 WL
118294 (N.D.N.Y. Mar. 21,1994).
242. See, e.g., Caruolo v. John Crane, Inc., 226 F.3d 46, 5759 (2d Cir. 2000) (applying Rhode Islands
pro-plaintiff joint and several liability law in an asbestosis action against an Illinois defendant, filed by a
Rhode Island plaintiff, who was exposed to asbestos in NewYork); Monroe v.Numed Inc., 680 N.Y.S.2d
707, 708 (N.Y.A.D. 1998)(applying Floridas pro-plaintiff law to a loss-of-consortium action arising out of
the death of a Florida child, whose death during surgery in Florida was attributed to a defective medical
device manufactured in NewYork by a NewYork defendant); Brown v.Harper, 647 N.Y.S.2d 245, 24648
(N.Y.A.D. 1996)(applying NewYorks pro-plaintiff law to impose liability on a Pennsylvania dealer who
sold a car to an uninsured driver, who caused a NewYork accident that injured a NewYork domiciliary);
State Farm Mut. Auto. Ins. Co. v.Koshy, 995 A.2d 651 (Me. 2010)(holding that Maine car-lessor liability
statute applied to Maine accident caused by a car leased in New Hampshire, the law of which did not hold
the lessor liable); Drinkall v.Used Car Rentals, Inc., 32 F.3d 329, 33033 (8th Cir. 1994)(applying Iowas
pro-plaintiff law to impose liability on a Nebraska car rental company that rented a car in Nebraska to an
unlicensed driver, who caused an accident in Iowa, injuring an Iowa domiciliary).
243. See, e.g., Bader by Bader v.Purdom, 841 F.2d 38, 3841 (2d Cir. 1988)(applying Ontario law in an
action by a NewYork minor bitten by defendants dog in Ontario; defendants brought a third-party action
against the minors parents, claiming contribution and indemnification for their negligent supervision of
the child; such a claim was permitted by Ontario law, but not by NewYork law); Mascarella v.Brown, 813
220
On balance, this result is appropriate, provided that the circumstances are such that the
defendant should have foreseen the application of the law of the victims home-state and place
of injury. In product liability cases, which are discussed later, the foreseeability proviso can be
easily satisfied when the product is marketed through ordinary commercial channels. In other
cases, the foreseeability inquiry must be undertaken on a case-by-casebasis.
One representative case from Pattern 7 is Kuehn v.Childrens Hospital, Los Angeles,244 which
was decided under Wisconsins choice-influencing considerations. Kuehn was an action filed
by the parents of a Wisconsin child, who died in Wisconsin, because of the negligence of a
California hospital in improperly shipping to Wisconsin a package containing the childs bone
marrow. Under the law of Wisconsin, but not California, the action survived the victims death.
In an opinion authored by Judge Posner, the court held that Wisconsin law governed, based in
part on Wisconsins interest in obtaining for its residents the measure of relief that the state
believes appropriate in tort cases.245 But the court also took care to explain why the California
hospital should have foreseen the occurrence of the injury in Wisconsin, and thus the possibility of having to account under Wisconsin lawthe hospital had shipped the package to
Wisconsin based on a contractual arrangement with a Wisconsin hospital.246
In contrast, in Troxel v. A.I. duPont Institute,247 a medical malpractice case, the foreseeability element was less clear, and this may partly explain why the court reached the opposite
result. ADelaware hospital treated a Pennsylvania patient, who then returned to Pennsylvania
and, unaware that she was suffering from a contagious disease, communicated that disease to
her pregnant neighbor, the plaintiff. The plaintiff s in utero child died, because of the disease,
and she sued the hospital for failure to inform its patient of the contagious nature of her disease
and of the risk to pregnant women who might come into contact with her. The Pennsylvania
court recognized Pennsylvanias interest in protecting its citizens, but concluded that this interest was superseded by Delawares interest in regulating the delivery of health care services in
Delaware[,]248 and in protecting defendants who acted in that state. The court said that, when
acting in Delaware, the defendants were entitled to rely on the duties and protections provided
by Delaware law.249
This discussion of state interests simply confirms that Pattern 7 cases are veritable true conflicts, which in turn suggests that the two states interests are more or less equally strong and
F.Supp.1015, 101820 (S.D.N.Y. 1993)(third-party action by a NewYork defendant against a New Jersey
corporation, seeking contribution and indemnification for medical malpractice committed in NewYork
by the NewYork defendant; applying NewYork law and allowing contribution, which was not available
under New Jersey law); Glunt v.ABC Paving Co, Inc., 668 N.Y.S.2d 846, 847 (N.Y.A.D. 1998)(case arising
out of a NewYork traffic accident, involving an Ohio victim, his Ohio employer, and a NewYork defendant; applying NewYork law, which allowed the NewYork defendant to obtain indemnification from the
Ohio defendant, who would be immune from indemnification under Ohiolaw).
244. 119 F.3d 1296 (7th Cir.1997).
245. Id. at1302.
246. Moreover, said the court, the only difference between California and Wisconsin law was in the
scope of liability for negligence, not in the standard of care. It [was] not as if California had required one
method of packing and shipping bone marrow and Wisconsin another.Id.
247. 636 A.2d 1179 (Pa. Super. 1994), appeal denied, 647 A.2d 903 (Pa.1994).
248. Id. at1181.
249. Id.
Torts
221
pertinent. One element that can tip the scales is the actors ability reasonably to foresee where
the act will manifest its direct consequences. In Kuehn, the California hospital clearly should
have foreseen that the consequences of its negligence in sending a package to Wisconsin would
have been felt in Wisconsin. Arguably, the same was true in Troxel. The Delaware doctors
should have foreseen that, when they sent an uncured and uniformed contagious patient back
to her home in Pennsylvania, the consequences of that negligence would have been felt in
Pennsylvania. The fact that the Troxel court did not accept this argument suggests that the
court strongly believed that, from a systemic perspective, medical malpractice conflicts should
be resolved invariably under the law of the place where the medical services are rendered,
regardless of any other factors. Indeed, the Troxel court stated that any rule that would allow
patients to carry with them the protective law of their domicile, when they travel to another
state for medical care, would be wholly unreasonable, for it would require hospitals and physicians to be aware of and be bound by the laws of all states from which patients came to them
for treatment.250 However, although this reasoning is entirely defensible in typical medical
malpractice cases in which the plaintiff is the patient who chooses in-patient treatment in an
out-of-state hospital, Troxel was an atypical case, insofar as it involved a plaintiff who was not
treated at the out-of-state hospital and who had no relationtoit.
2. Pattern 8:Cases inWhich theConduct

and theTortfeasors Domicile Are ina State
Whose Law Favors theVictim, whilethe
Injury and theVictims Domicile Are ina
State Whose Law Favors theTortfeasor
Pattern 8 is similar to Patterns 5 and 6, inasmuch as in all three patterns the tortfeasor is
domiciled in a state whose law favors the victim, while the victim is domiciled in a state
whose law favors the tortfeasor. Thus, all three patterns present the inverse conflict or, in
Curries terms, the no-interest paradigm. However, in Patterns 5 and 6 both the conduct and
the injury occur in the home-state of one of the parties, whereas in Pattern 8 these two contacts are divided, with the conduct occurring in the tortfeasors home-state and the injury in
the victims home-state. This division makes Pattern 8 cases more difficult than the cases of
Pattern 5or6.
If the conflict involves only loss-distribution issuessuch as when the state of conduct
provides more generous compensatory damages than the state of injurythen, under Curries
assumptions, the conflict will present the no interest paradigm, because neither state is supposed to have an interest in protecting the domiciliary of the other state.251 The state of conduct
is not supposed to be interested in applying its pro-plaintiff law for the benefit of a plaintiff
domiciled in the state of injury; conversely, the state of injury is not supposed to have an interest in applying its pro-defendant law for the benefit of a defendant domiciled in the state of
250. Id.
251. In contrast, if the conflict involves only conduct-regulation issues, then the case will present the false
conflict paradigm, in which only the state of conduct would have an interest in applying its law. These
conflicts are discussed infra at 23842.
222
conduct.252 Currie concluded that, in the absence of conflicting interests, the law of the forum
qua forum should govern no-interest cases, because that law is the default law, and it should
govern in the absence of a good reason for its displacement.
The majority of cases involving Pattern 8 applied the pro-plaintiff law of the state of
conduct,253 but virtually none of them adopted Curries assumptions about state interests.
Specifically:
(1) None of the cases adopted Curries assumption that a state has no interest in applying its law when it favors a domiciliary of another state at the expense of its own
domiciliaries;
(2) In none of the cases did the court conclude that both involved states were uninterested
in applying their respective laws. Rather than accepting Curries no-interest label,
most courts classified the case as a false conflict. The courts characterized the pro-
plaintiff law of the state of conduct as partly conduct-regulating, and they concluded
that:(a)that state had an interest in applying its law to deter defendants from engaging
in substandard conduct within its territory; and (b)the state of injury did not have a
countervailing interest in applying its pro-defendant law;and
(3) Less than half of the cases involving this pattern applied forum law, but they did so on
grounds other than those Currie advocated.254
252. To be sure, as in the cases of Pattern 6 (the Hurtado pattern), a court may choose to characterize the
pro-recovery law of the tortfeasors home-state and place of conduct as partly conduct-regulating. If so,
the no-interest case becomes a false conflict. Several products liability cases discussed later have done
precisely that. They applied the pro-plaintiff law of the manufacturers home-state and place of manufacture, rather than the pro-defendant law of the plaintiff s home state and injury. Similarly, as Ardoyno
v.Kyzar, 426 F.Supp.78 (E.D. La. 1976)illustrates, a court may articulate a states interests in a way that
dissociates them from the parties domiciles. Ardoyno was an action for an interference with contract filed
by a Louisiana plaintiff against a Mississippi defendant, whose conduct in Mississippi caused injury to the
plaintiff in both states. Mississippi, but not Louisiana, allowed such an action. The court reasoned that
the Louisiana rule, which prohibited the action, was geared not toward protecting defendants as such, but
rather toward fostering competition with regard to employment contracts. Because the contract in question was entered into in Louisiana, the court concluded that Louisiana had an interest in applying this rule,
even though the Louisiana plaintiff resisted, and the Mississippi defendant benefited from, its application.
253.Fourteen cases applied the pro-plaintiff law of the state of conduct, and six cases applied the pro-
defendant law of the state of injury. For cases in the first group, see Schubert v.Target Stores, Inc., 201 S.W.3d
917, 923 (Ark. 2005); Williams v.Rawlings Truck Line, Inc., 357 F.2d 581 (D.C. Cir. 1965); Hitchcock v.United
States, 665 F.2d 354, 360 (D.C. Cir. 1981); Coats v.Hertz Corp., 695 N.E.2d 76 (Ill. App.5 Dist. 1998); Cortes
v.Ryder Truck Rental, Inc., 581 N.E.2d 1 (Ill. App.1 Dist. 1991); Downing v.Abercrombie & Fitch, 265 F.3d
994 (9th Cir. 2001); Gianni v.Fort Wayne Air Serv., Inc., 342 F.2d 621 (7th Cir. 1965); Motor Club of Am. Ins.
Co. v.Hanifi, 145 F.3d 170 (4th Cir. 1998); Cates v.Creamer, 431 F.3d 456 (5th Cir. 2005); Cates v.Hertz Corp.,
No. 08-10686, 2009 WL 2447792 (5th Cir. Aug. 11, 2009); Fanning v.Dianon Sys., Inc., No. 05-cv-01899-LTB-
CBS, 2006 WL 2385210, at *5 (D. Colo. Aug. 16, 2006); Workman v.Chinchinian, 807 F.Supp.634, 640 (E.D.
Wash. 1992); Ardoyno v.Kyzar, 426 F.Supp.78 (E.D. La. 1976). For cases in the second group, see Crdenas
v.Muangman, 998 A.2d 303 (D.C. 2010); Kamelgard v.Macura, 585 F.3d 334 (7th Cir. 2009), rehg denied (Nov.
12, 2009); Maniscalco v.Brother Intern. (USA) Corp., 709 F.3d 202 (3d Cir. 2013); Heisler v.Toyota Motor
Credit Corp., 884 F.Supp.128 (S.D.N.Y. 1995); Buglioli v.Enter. Rent-A-Car, 811 F.Supp.105, 107 (E.D.N.Y.
1993); Salavarria v.Natl Car Rental Sys., Inc., 705 So. 2d 809 (La. App.4 Cir. 1998). For tabular presentation
and discussion of the pre-2009 cases, see Symeonides, Cross-Border Torts 36166.
254. For specifics, see Symeonides Cross-Border Torts 36366. In most of these cases, the forum state was
also the state of conduct, and the courts based their choice of law on that states affirmative interest to
police conduct within its borders. Seeid.
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223
3. Summary andRules
A descriptive rule summarizing the results American courts have reached in cases falling
within Patterns 7 and 8 would provide the following:
Rule V
(1) When conduct originating in one state causes injury in another state, the law of the state of
conduct governs.
(2) However, the law of the state of injury governs, if:
(a) The injured person is domiciled in that state and its law provides a higher standard of
protection for that person than the state of conduct; and
(b) The occurrence of the injury in that state was objectively foreseeable.255
Paragraph 1 of this rule covers the cases of Pattern 8, while paragraph 2 covers the cases
of Pattern7.
The Oregon codification has adopted a rule that gives the choice directly to the tort victim.
Section 15.440(3)(c) provides in pertinent part that, in split-domicile cross-border torts, the
law of the state of conduct governs. However, this provision also allows the application of the
law of the state of injury,if:
(A) The activities of the person whose conduct caused the injury were such as to make
foreseeable the occurrence of injury in that state;and
(B) The injured person formally requests the application of that states law by a pleading
or amended pleading. The request shall be deemed to encompass all claims and issues
against that defendant.256
Obviously, the victim will make this request in Pattern 7 cases, but not in Pattern 8cases.
The Louisiana codification has adopted a similar rule for loss-distribution conflicts falling within Pattern 7.Article 3544(2)(b) of the codification provides that, when the parties are
domiciled in different states with different laws, and the conduct and injury occur in different
states, the law of the state of injury governs, providedthat:
(i) the injured person was domiciled in thatstate,
(ii) the person who caused the injury should have foreseen its occurrence in that state,and
(iii) the law of that state provided for a higher standard of financial protection for the
injured person than did the law of the state in which the injurious conduct occurred.257
255. For a comparison of this rule with the Neumeier rules, see Symeonides, Choice-of-Law Revolution
198200.
256. Or. Rev. Stat. 15.440(3)(c) (2015). For discussion, see Symeonides, Oregon Torts Exegesis 1022
32. Both the Louisiana rule and the Oregon rule are subject to escapes in exceptional cases. Neither
rule applies to products liability cases. Unlike the Louisiana rule, the Oregon rule applies to both loss-
distribution and conduct-regulation issues.
257.For discussion, see Symeonides, Louisiana Exegesis 72931. Article 41(b)(2) of the Puerto Rico
Draft Code is substantially identical.
224
However, the codification does not provide an a priori rule for Pattern 8 cases. Instead, it
relegates them to the codifications residual and flexible approach.258 The underlying rationale
is that a court that has the opportunity to consider the totality of the circumstances of the
particular caseincluding factors such as the parties relationship, if anyis likely to reach a
better result than one pre-formulated exante.
In the meantime, many foreign codifications have adopted bold rules that directly favor the
plaintiff in cross-border torts. As documented in a recent study of choice-of-law codifications
in the last 50years, a significant number of codifications authorize the application of the law
of either the place of conduct or the place of injury, whichever favors the victim. Specifically:
(a) Nine codifications directly authorize the victim to choose the applicable law in all
cross-border torts;
(b) Twelve codifications authorize the court to choose the law that is more favorable to the
victim in all cross-border torts; and
(c) Twenty-three codifications, including Rome II, which is applicable to 27 EU countries,
contain an express favor laesi rule that applies only to some cross-border torts.259
It is worth noting that:(1)although the American solutions to cross-border torts (including those of Louisiana and Oregon) are based primarily on state interests and considerations of
conflicts justice, the above foreign rules are based directly on the principle of favoring the victim (favor laesi) and considerations of material justice; and (2)unlike the American solutions,
in many (but not all) of the foreign codifications, the application of the law of state of injury is
not accompanied by a proviso that the occurrence of the injury in that state must be foreseeable.
F. SPLIT-DOMICILE CONFLICTS
INVOLVING THREE STATES
When the tortfeasor and the victim are domiciled in different states and the tort is committed
in whole or in part in a third state, the resulting conflict can be quite complex. Depending on
the content of the laws of the three states, these cases can present the false, direct, or inverse
conflict paradigms. The involvement of the third state usually adds to the difficulty of resolving
the conflict.
Budget Rent-A-Car System, Inc. v. Chappell260 is a recent example of a tri-state conflict,
in which the laws of each state would produce a different outcome. Joseph, a domiciliary of
Michigan, rented a car in that state from the defendant-company and, the day before Valentines
258. The rule of La. Civ. Code Art. 3544(2)(b) (2015) , which is reproduced supra at 223, calls for the
application of the law of the state of injury, but only when the law of that state provides for a higher
standard of financial protection for the injured person than the law of the state in which the injurious
conduct occurred[,] that is, Pattern 7 cases. Thus, this rule does not cover Pattern 8 cases, in which it is
the state of conduct that provides for the higher standard.
259. For documentation and discussion, see Symeonides, Codifying Choice of Law 5967. In addition, at
least eight other codifications contain provisions that have been, or can be, interpreted as authorizing the
application of the law most favorable to the victim. See id.at62.
260. 407 F.3d 166 (3d Cir. 2005)(decided under Pennsylvania conflictslaw).
Torts
225
Day, he drove it to NewYork to deliver roses and a bracelet to Nicole, a NewYork domiciliary.
He was driving back to Michigan through Pennsylvania, with Nicole as his passenger, when he
fell asleep at the wheel. The resulting accident left Nicole a paraplegic. The rental-car company
brought an action in Pennsylvania, seeking a declaratory judgment to free it from vicarious
liability arising from its ownership of the rented car. The company would be entitled to such a
declaration under the law of Pennsylvania, but not the law of Michigan or NewYork, both of
which had statutes imposing civil liability on car owners for injuries caused by persons using
the car with the owners consent. But, unlike the NewYork statute, the Michigan statute limited
the owners liability to $20,000.
The court found that Pennsylvania had no interest in limiting the companys liability,
whereas Michigans interest was uncertain and tenuous under the circumstances of this
case.261 In contrast, the court found that NewYorks interest was clear, direct and compelling,
because all of the reasons for which New York enacted the car-owner liability statute were
directly implicated in this case.262 NewYork had an interest in:(1) [Nicoles] full recovery from
a financially responsible party, (2)the compensation of NewYork vendors who furnish medical
and hospital care to [Nicole], and (3)recouping the States welfare expenses.263
In characteristic simplicity, Neumeier Rule 3 submits all tri-state conflicts to a presumptive
lex loci delicti rule accompanied by an escape that authorizes displacement of the lex loci, if this
would advance the relevant substantive law purposes without impairing the smooth working
of the multi-state system or producing great uncertainty for litigants.264 This escape came in
handy in the part of the Schultz case involving the second defendant, the Franciscan Brothers,
which had its principal place of business in Ohio.265 Through this escape, the court managed to
avoid the application of the pro-plaintiff law of the locus of the tort (NewYork) and thus to
treat this defendant as favorably as the other defendant, Boy Scouts.
Similarly, the Oregon codification provides that [i]f both the injurious conduct and the
resulting injury occurred in a state other than the state in which either the injured person or
the person whose conduct caused the injury were domiciled, the law of the state of conduct
and injury governs.266 However, this rule is subject to an escape, [i]f a party demonstrates
that, under the circumstances of the particular case, the application of that law to a disputed
issue will not serve the objectives of that law[.]267 In such a case, that issue will be governed by
the law selected under the codifications residual, flexible approach.
In Gould Electronics Inc. v. United States,268 a federal court attempted to summarize the
circumstances under which New York courts displace the lex loci under Neumeier Rule
3.According to this summary, displacement is more likely when one or more of the following
factors are present:(1)when the parties contacts with the locus state are a matter of fortuity,
261. Id. at178.
262. Id. at177.
263. Id.
264. Neumeier Rule 3, supra, at note 156.
265. Schultz v.Boy Scouts of Am., Inc., 480 N.E.2d 679, 687 (N.Y. 1985), discussed supra, at 15658.
266. Or. Rev. Stat. 15.440(3)(b) (2015).
267. Id. In contrast, the Louisiana codification does not provide an a priori rule for these cases; instead it
relegates them to its residual, flexible approach.
268. 220 F.3d 169 (3d Cir. 2000)(decided under NewYork conflictslaw).
226
rather than voluntary action; (2)when the tort does not occur in the domicile of either party;
(3) when displacement will neither encourage forum-shopping nor create the appearance
of favoring local litigants; (4) when the parties are domiciled in states with similar laws; or
(5)when the other state has a stronger interest than the locus state in applying its law.269
This summary is eminently plausible. Whether it is also entirely accurate is another question. For example, one need not be facetious to suggest that, all other factors being equal, the
lex loci is less likely to be displaced when it favors recovery than when it does not. Indeed,
cases involving this tri-state pattern and decided by lower NewYork courts after Schultz suggest a certain pro-recovery bent. Unlike the Schultz and Neumeier cases (both of which denied
recovery in a two-state conflict of the no-interest paradigm), most of these lower-court cases
have allowed recovery, either by following the lex loci part of Rule 3, or by utilizing the escape
contained in that rule.270
Recent cases continue this trend. One example is Bodea v. Trans Nat Express, Inc.271
NewYork was, again, the locus of the tort, and its law favored the plaintiff more than both of
the other involved states. The case arose out of a NewYork traffic accident involving an Ontario
plaintiff and a Qubec defendant, driving in separate cars. The conflict involved the issue of
damages for non-economic losses. Qubec did not allow such damages; Ontario allowed them,
but it limited the amount; and NewYork allowed them without limits. The defendant invoked
the Rule 3 escape and, apparently realizing that his chances of convincing the court to apply
Qubec law were limited, made a more modest argument in favor of Ontario law. The court
rejected the argument, because it found no reason why a Qubec resident would expect that
the laws of the Province of Ontario would apply to an accident that occurred in NewYork.272
The court noted that the analysis would differ if Ontario and Qubec had the same law, but,
because they did not, the situs of the accident (NewYork) is appropriate as a tie breaker.273
269. Id. at187.

270. See Symeonides, Choice-of-Law Revolution 20607. One notable exception is Gilbert v. Seton Hall
Univ., 332 F.3d 105 (2d Cir. 2003)(decided under NewYork conflicts law), a tri-state conflict, involving
the same New Jersey charitable immunity rule, as in Schultz, and a NewYork injury. The court avoided
the lex loci, but through a different route. The defendant, Seton Hall University, was a nonprofit New
Jersey corporation protected by New Jerseys charitable immunity rule. The plaintiff was a Seton Hall
student, who was severely injured during a school rugby game held in NewYork. He was domiciled in
Connecticut, a state that, like NewYork, had abolished charitable immunity. The court noted that the case
fell within the scope of Neumeier Rule 3, but, barely mentioning this rule again, it proceeded to conduct
a full-fledged interest analysis, ending with the conclusion that New Jersey law should govern, because,
unlike NewYork, New Jersey had a strong interest in applying its law. The court discounted the plaintiff s
Connecticut domicile and treated his decision to attend a New Jersey school as equivalent to a choice of
a domicile in New Jersey. This made the case functionally analogous to common-domicile cases, which
Neumeier Rule 1 subjects to the law of the common domicile.
271. 731 N.Y.S.2d 113 (N.Y.A.D.2001).
272. Id. at118.
273. Id. (internal quotation marks omitted). The court also noted that both plaintiffs and defendants
have purposefully associated themselves with the laws of NewYork[,]and that their presence [there]
was not merely fortuitous. Id. The [p]laintiff traveled [regularly] through NewYork on his way to and
from his apartment and job in Maryland[,] whereas the defendant, who was a truck driver, drove frequently through NewYork.Id.
Torts
227
Another example is Edwards v.Erie Coach Lines Co.,274 which was decided by NewYorks
highest court and involved a tri-state pattern similar to the part of Schultz involving the
Franciscan defendants. An Ontario bus carrying the members of an Ontario hockey team collided in NewYork with a Pennsylvania tractor-trailer parked on the shoulder of the road. The
bus passengers sued the Pennsylvania defendants, who were 10 percent at fault.275 For some
reason, the defendants did not invoke Pennsylvania law, which (unlike NewYork law) favored
the defendants. Instead, they invoked Ontario law, which (unlike New York law) limited the
amount of non-economic damages. The court held that NewYork law should govern the action,
noting that the fact that the defendants declined to advocate for Pennsylvania law does not
permit them to take advantage of the Ontario cap.276 The court rejected the defendants argument that their position was identical to that of the Franciscan Brothers in Schultz. The court
noted that [w]hile NewYork employs interest analysis rather than grouping of contacts, the
number and intensity of contacts is relevant when considering whether to deviate from lex loci
delicti under the third Neumeier rule,277 and that New Jerseys contacts in Schultz v.Franciscans
were significant enough to justify such a deviation. By contrast, in this case:
there was no cause to contemplate a jurisdiction other than New York, the place where the conduct causing injuries and the injuries themselves occurred. The defendants did not ask [the trial
court] to consider the law of their domicile, Pennsylvania, and they had no contacts whatsoever with
Ontario other than the happenstance that plaintiffs and the bus defendants were domiciled there.278
G. SUMMARY AND RULES FORLOSS-

DISTRIBUTION CONFLICTS
If one looks beyond the diversity of methodologies generated by the choice-of-law revolution
and instead focuses on the actual results the courts reached in cases involving loss-distribution
conflicts, one can discern a surprising degree of consistency, if not uniformity. These results
can be compressed into a few sentences of descriptive rules, as follows:
When, in a tort case that has pertinent contacts with more than one state, and the loss-distribution
laws of these states would produce different outcomes, the applicable law is determined as designated below, in the followingorder:
(1)Common-Domicile Cases: If the injured party and the party whose conduct caused the
injury (tortfeasor) are domiciled in the same state,279 then the law of that state governs
[whether it favors the victim (Pattern 1)or the tortfeasor (Pattern2)];
274. 952 N.E.2d 1033 (N.Y.2011).
275. The plaintiffs also sued the Ontario bus company, which was stipulated to be 90 percent at fault.
Following Neumeier rule 1, the court applied Ontario law, which, unlike New York law, limited the
amount of non-economic damages.
276. Edwards, 952 N.E.2d at1044.
278. Id.
279. When the victim and the tortfeasor are domiciled in different states, the laws of which produce the
same result, the law of either state may be applied. See supra, at 203.
228

(2)Split-Domicile Cases: If the injured party and the tortfeasor are domiciled in different
states and both the tortfeasors conduct, and the victims injury occurred in either partys
domicile, then the law of that state governs [whether it favors the victim (Patterns 4 and
6)or the tortfeasor (Patterns 3 and5)];
(3)Split-Domicile Cross-Border Cases: If conduct originating in one state causes injury in
another state, the law of the state of conduct governs [(Pattern 8)]. However, the law of the
state of injury governs, if:(a)the injured person is domiciled in that state and its law provides a higher standard of protection for that person than the state of conduct; and (b)the
occurrence of the injury in that state was objectively foreseeable [(Pattern7)].
As the bracketed phrases indicate, the above three rules cover all eight typical patterns
reviewed in this Section of the chapter. In turn, these patterns represent the majority of loss-
distribution conflicts. Each rule reflects the results reached by the majority of cases falling
within the patterns covered by the rule. In some instances, this majority approaches unanimity
(as in Pattern 1); in others, it is overwhelming (as in Patterns 24 and 67); and in others, it is
simply a majority (as in Patterns 5 and 8). In this sense, all of the above rules are restatements
of the caselaw.
Although these rules cover many cases, they do not cover all cases. They are deliberately
elliptical. For example, they do not cover cases involving three states, or disputes between joint
tortfeasors, in all patterns. Judicial experience thus far has not produced clear solutions for
thesecases.
The above rules are not phrased with the precision and the degree of detail that is necessary or customary for statutory rules. Furthermore, because they are descriptive, rather than
prescriptive, the above rules are not accompanied by any escape clause authorizing judicial
deviations in exceptional cases. Such a clause would be necessary, however, if one were to put
these rules in statutory language.280
All three of the above rules are forum-neutral. Rules 1 and 2 are also content-neutral; that
is, they are phrased in terms that, on their face, do not take account of the content of the
involved states laws. They provide for the application of the law of the designated state, regardless of whether that law favors the victim or the tortfeasor. In this sense, Rules 1 and 2 are
jurisdiction-selecting rules. In contrast, Rule 3 is a content-dependent (or content-oriented)
rule, to the extent it provides for the application of the law of the state of injury only if that law
has a certain content (i.e., it favors the victim).
The reason for the difference is not an a priori preference, but rather the judicial experience accumulated during the revolution, and a careful study and analysis of that experience.
For example, as the reader will recall, the above review divided the common-domicile cases
covered by Rule 1 into two patterns (1 and 2), based precisely on the content of the involved
states laws. However, after the cases of each pattern were collected and analyzed, the conclusion emerged that this content did not affect the outcome of the cases. Similarly, the cases
covered by Rule 2 were divided into four patterns (36), again based on the content of the
involved states laws. Again, in the majority of cases, that content proved to be immaterial in
affecting the outcome.
280. The similarly phrased rules of the Louisiana and Oregon codifications are accompanied by escape
clauses.
Torts
229
In contrast, in the remaining two patterns (Patterns 7 and 8), the content of the involved
states laws did make a difference. In both patterns, the majority of cases applied the law of the
state that favored the victim. Rule 3 reflects this reality.
I V. C O N D U C T-R E GUL AT I ON CONF L I CT S

A.INTRODUCTION
This part of the chapter discusses conflicts between conduct-regulating rulesnamely, rules
that, in the words of the NewYork Court of Appeals, have the prophylactic effect of governing
conduct to prevent injuries from occurring.281 As explained earlier, whether a particular rule
falls within this category depends on the rules primary purpose or function, as determined
by the court through the interpretative process. Rules of the road, as well as rules that prescribe civil sanctions for violating rules of the road, and rules that prescribe safety standards
for worksites, buildings, and other premises, are examples of rules whose primary function is
to regulate conduct, even if they ultimately also have an impact on loss-distribution.
One peculiarly American example of conduct-regulating rules are those that impose punitive or exemplary damages for egregious conduct. These rules go beyond the normative goal
of deterrence, which characterizes all conduct-regulating rules, in that they seek to punish the
individual wrongdoer civilly, thus setting an example for others. In the words of one American
court, these rules aim for deterrence through public condemnation.282 Because of these special features, punitive-damages conflicts are reserved for separate discussion in the next part of
the chapter. Section B of this part discusses cases involving other conduct-regulating rules or,
at least, rules that the courts classified as conduct-regulatingrules.
B. GENERIC CONDUCT-REGULATION CONFLICTS

Unlike loss-distributing rules, which focus on both people and territory, conduct-regulating
rules are primarily territorial. For example, a state has an interest in enforcing its traffic rules,
without regard to who violates them and who suffers the consequences of the violation. Aforeigner who enters the territory may not claim exemption from these rules, and, when injured
by conduct that violates them, the foreigner may not be denied the benefit of their protection.
This suggests that, as a general proposition, the parties domiciles are a far less significant factor
in conduct-regulation conflicts than in loss-distribution conflicts.283 For this reason, conduct-
regulating conflicts should be analyzed and resolved by focusing more on the spatial aspects of
the conduct and the injury, and less on the parties domiciles.
281. Padula v.Lilarn Props. Corp., 644 N.E.2d 1001, 1002 (N.Y. 1994), discussed supra, at 187.
282. Horowitz v.Schneider Natl Inc., 708 F.Supp.1573, 1577 (D. Wyo.1989).
283. This is not to say that domicile is an irrelevant contact. For example, if the violator of a conduct-
regulating rule is a domiciliary of the enacting state, that state has an additional reason to insist on the
230
The reference to both the conduct and the injury underscores the possibility that these two
events may occur in different states. Indeed, cross-border torts are more common today than
ever. In such torts, the old phrase locus of the tort becomes ambiguous. When conduct in one
state produces injury in another, either state may qualify as the locus of the tort. Rather than
retreating to outmoded and artificial last-event notions, one should be prepared to accept the
premise that, when the conduct and the injury are not in the same state, both of these contacts
deserve due consideration.
With this premise in mind, as well as the idea that the parties domiciles are not a significant a priori factor in conduct-regulation conflicts, one can classify these conflicts into the following four patterns:
(1) Cases in which the conduct and the injury occur in the same state (Pattern 9);and
(2) Cases in which the conduct and the injury occur in different states, and inwhich:
(a) the two states prescribe the same standards of conduct (Pattern 10);or
(b) the two states prescribe different standards (designated with the adjectives high
and low), and in which the particular conduct:
(i) violates the (higher) standards of the state of conduct, but not the (lower)
standards of the state of injury (Pattern 11);or
(ii) does not violate the (lower) standards of the state of conduct, but does violate the (higher) standards of the state of injury (Pattern12).
Table 19, below, depicts these patterns, with boldface-uppercase letters denoting a state
with a high standard of conduct and lowercase letters denoting a state with a low standard of
conduct. The columns for the plaintiff s and the defendants domiciles are blank, because, in
conduct-regulation conflicts, the parties domiciles are, in principle, irrelevant. Shading indicates the state whose law is applied by the courts, as the following pages document.
Table19. Patterns inConduct-Regulation Conflicts

Pattern # Defendants domicile State of conduct State of injury
9
10
11
12
---
---
---
---
---
---
A
a
A
a
A
a
A
a
B
b
b
B
Plaintiff s
domicile
---
---
---
---
---
---
Classification
False
False
False
True
rules application. Similarly, if the victim of the violation is a domiciliary of the enacting state, that state
has an additional reason to insist on the rules application. The point is, however, that a state has a general
interest in enforcing its conduct-regulating rules, even if neither the violator nor the victim resides in
thatstate.
Torts
231
2. Pattern 9:Conduct
and Injury inSameState
Ordinarily, the cases of Pattern 9 are so obviously false conflicts that they should not occupy us
here. If the issue in question clearly qualifies as one of conduct-regulation, then the state in which
both the injurious conduct and the resulting injury occurred has the exclusive claim to apply its
law. As the Babcock court stated, in these cases, it would be almost unthinkable to seek the
applicable rule in the law of some other place.284 Indeed, even the Restatement (Second) abandons its characteristic equivocation and declares that [w]ith respect to issues relating to standards of conduct, the local law of the state of conduct and injury has been invariably applied.285
Yet, perhaps because of the increased importance of the parties domiciles in loss-distribution
conflicts, it is easy to forget that the parties domiciles are simply irrelevant in conduct-regulation
conflicts. It therefore bears repeating that the principle that the state of conduct and injury has
the dominant interest to apply its law holds true, even when one or both of the parties are
domiciled in such other place. Cases confirming this proposition are countless. They involve
issues of not only traffic safety286 and worksite safety,287 but also premises liability,288 contributory
284. Babcock v.Jackson, 191 N.E.2d 279, 284 (N.Y. 1963).

285. Restatement (Second) 146, cmt. d 191 N.E.2d 279 (N.Y. 1963) , Reporters Note. See also id.
145(1), cmt. d. ([S]ubject only to rare exceptions, the local law of the state where conduct and injury
occurred will be applied to determine whether the actor satisfied minimum standards of acceptable conduct and whether the interest affected by the actors conduct was entitled to legal protection.).
286. See Bertram v.Norden, 823 N.E.2d 478 (Ohio App.3 Dist. 2004)(discussed infra, at 23233); Melton
v.Stephens, 13 N.E.3d 533 (Ind. App.2014), rehg denied (Oct. 14, 2014); Parrott v.Severs Trucking, LLC,
422 S.W.3d 478 (Mo. App. S.D. 2014) rehg and/or transfer denied (Feb. 28, 2014), transfer denied (Apr.
29, 2014); Woodward v.Taylor, 2014 WL 4988188 (Wash. App. Div. 1 Oct. 6, 2014); Tkaczevski v.Ryder
Truck Rental, Inc., 22 F. Supp. 2d 169 (S.D.N.Y. 1998); Ellis v. Barto, 918 P.2d 540 (Wash. App. Div. 3
1996), review denied, 930P.2d 1229 (Wash. 1997); FCE Transp., Inc. v.Ajayem Lumber Midwest Corp.,
1988 WL 48018 (Ohio App. May 12, 1988); Bonelli v.Giguere, 2004 WL 424089 (Conn. Super. Feb. 18,
2004); Johnson v.Ford Motor Co., Inc., 2003 WL 22317425 (N.D. Ill. Oct. 9, 2003); Chang v.Chang, 2004
WL 2095116 (Conn. Super. Aug. 23,2004).
287. See Padula v. Lilarn Props. Corp., 644 N.E.2d 1001 (N.Y. 1994); Augello v. 20166 Tenants Corp.,
648 N.Y.S.2d 101 (N.Y. A.D. 1996); Thompson v.Intl Bus. Mach. Corp., 862 F.Supp.79 (S.D.N.Y.1994).
288. See Spinozzi v.ITT Sheraton Corp., 174 F.3d 842 (7th Cir. 1999)(discussed infra, at 235); Najarian
v.Natl Amusements, Inc., 768 A.2d 1253 (R.I. 2001); Taylor v.Mass. Flora Realty, Inc., 840 A.2d 1126
(R.I. 2004); Brooks v.General Cas. Co. of Wis., 2007 WL 4305577 (E.D. Wis. Dec. 7, 2007); Mastondrea
v. Occidental Hotels Mgmt. S.A., 918 A.2d 27 (N.J. Super. A.D. 2007); Stromberg v. Marriott Intern.,
Inc., 474 F.Supp.2d 57 (D.D.C. 2007), affirmed, 256 Fed. Appx. 359 (D.C. Cir. Nov. 14, 2007); Gorbey
v.Longwill, 2007 WL 891525 (D. Del. Mar. 22, 2007); Nash v.Tindall Corp., 650 S.E.2d 81 (S.C. App.2007),
rehg denied (Sept. 20, 2007), cert. denied (June 26, 2008); Abdelhamid v.Altria Group, Inc., 515 F.Supp.2d
384 (S.D.N.Y. 2007); Carris v.Marriott Intl, Inc., 466 F.3d 558 (7th Cir. 2006); Lee ex rel. Lee v.Choice
Hotels Intl, Inc., 2006 WL 1148737 (Del. Super. Mar. 21, 2006); Toriumi v.Ritz-Carlton Hotel Co., L.L.C.,
2006 WL 3095753 (N.D. Ill. Oct. 27, 2006); Gawlak v. Mt. Snow, Ltd., 2006 WL 361644 (Conn. Super.
Jan. 31, 2006); Kirschbaum v.WRGSB Assocs., 243 F.3d 145 (3d Cir. 2001); Olson v.Empire Dist. Elec.
Co., 14 S.W.3d 218 (Mo. App. S.D. 2000); Judge v.Pilot Oil Corp., 205 F.3d 335 (7th Cir. 2000); Powers
v.Wal-Mart Stores, Inc., 2006 WL 2868320 (W.D. Va. Oct. 5, 2006); McDowell v.Kmart Corp., 2006 WL
1967363 (E.D. Pa. July 12, 2006); Felton v.Haris Design & Constr. Co., 417 F.Supp.2d 17 (D.D.C. 2006);
Ramey v.Wal-Mart, Inc., 967 F.Supp.843 (E.D. Pa. 1997); Schechter v.Tauck Tours, Inc., 17 F.Supp.2d
255 (S.D.N.Y. 1998); Scheerer v. Hardees Food Sys., Inc., 92 F.3d 702 (8th Cir. 1996); Leane v. Joseph
232
negligence,289 interference with contract,290 and many other issues.291 In all of these cases, the
courts applied the law of the state in which both the conduct and the injury occurred, without considering the parties domiciles. Conversely, some cases have held that the forums
conduct-regulating rule was inapplicable to an out-of-state accident involving exclusively forum
domiciliaries.292
Bertram v.Norden293 is an example of the controlling interest of the state of conduct and
injury to apply its law, even when the tortfeasor and the victim have a joint domicile and
a preexisting relationship in another state. Bertram arose from a snowmobiling collision in
Michigan between two young Ohio domiciliaries, who had traveled together to Michigan for a
weekend of snowmobiling activities. AMichigan statute barred the plaintiff s action, providing
that [e]ach person who participates in the sport of snowmobiling accepts the risks associated
with that sport insofar as the dangers are obvious and inherent.294 Ohio permitted the action.
Entmt Group, Inc., 642 N.E.2d 852 (Ill. App.1 Dist. 1994); Johnson v.Travelers Ins. Co., 486 N.W.2d 37
(Wis. App.1992); Burns v.Geres, 409 N.W.2d 428 (Wis.App.1987); Barrett v.Foster Grant Co., 450 F.2d
1146 (1st Cir. 1971); Murphy v.Thornton, 746 So. 2d 575 (Fla. App.1 Dist. 1999); Townes ex rel. Estate of
Townes v.Cove Haven, Inc., 2004 WL 2403467 (S.D.N.Y. Oct. 27, 2004); Scott v.Pilot Corp., 205 Wis. 2d
738, 557 N.W.2d 257 (Wis. App.1996); Smith v.Fla. Gulf Airlines, Inc., 1996 WL 156859 (E.D. La. Apr. 2,
1996); WalMart Stores, Inc. v.Manning, 788 So. 2d 116 (Ala.2000).
289. See, e.g., District of Columbia v.Coleman, 667 A.2d 811 (D.C. App.1995); Manson v.Keglovits, 19
N.E.3d 823 (Ind. App.2014); Matson by Kehoe v.Anctil, 979 F.Supp.1031 (D. Vt. 1997); Moye v.Palma,
622 A.2d 935 (N.J. Super. A.D. 1993); Gray v.Busch Entmt Corp., 886 F.2d 14 (2d Cir. 1989); Kirby v.Lee,
1999 WL 562750 (E.D. Pa. July 22, 1999); Sabbatino v.Old Navy, Inc., 2003 WL 21448822 (N.Y.C. Civ.
Ct. May 9,2003).
290. See Abogados v.AT&T, Inc., 223 F.3d 932 (9th Cir. 2000); Bridas Corp. v.Unocal Corp., 16 S.W.3d 893
(Tex. App.Houston [14 Dist.] 2000); EA Oil Serv., Inc. v.Mobil Exploration & Producing Turkmenistan,
Inc., 2000 WL 552406 (Tex. App.Houston [14 Dist.] May 4, 2000); Czech Beer Importers, Inc. v.C. Haven
Imports, LLC, 2005 WL 1490097 (S.D.N.Y. June 23, 2005); PenneCom B.V. v. Merrill Lynch & Co., Inc.,
2005 WL 2044948 (S.D.N.Y. Aug. 25, 2005); DTEX, LLC v.BBVA Bancomer, S.A., 508 F.3d 785 (5th Cir.
2007); Grupo Televisa, S.A.v.Telemundo Commcns Group, Inc., 485 F.3d 1233 (11th Cir. 2007); Chambers
v. Cooney, 2007 WL 2493682 (S.D. Ala. Aug. 29, 2007); Johnson & Johnson v. Guidant Corp., 2007 WL
2456625 (S.D.N.Y. Aug. 29, 2007); Inter-Tel (Delaware), Inc. v.Fulton Commcns Telephone Co., Inc., 2007
WL 1725349 (D. Ariz. June 12, 2007); Bavarian Nordic A/S v.Acambis Inc., 486 F.Supp.2d 354 (D. Del.
2007); Topp, Inc. v.Uniden Am. Corp., 483 F.Supp.2d 1187 (S.D. Fla. 2007); BFI Group Divino Corp. v.JSC
Russian Aluminum, 481 F.Supp.2d 274 (S.D.N.Y. 2007); Harrison v.Procter & Gamble Co., 2007 WL 431085
(N.D. Tex. Feb. 8, 2007); Discover Group, Inc. v.Lexmark Intl, Inc., 333 F.Supp.2d 78 (E.D.N.Y.2004).
291. See, e.g., Richardson v. Michelin N. Am., Inc., 1998 WL 135804 (W.D.N.Y. Mar. 18, 1998) (strict
liability); BP Chemicals Ltd. v.Formosa Chem. & Fibre Corp., 229 F.3d 254 (3d Cir. 2000)(misappropriation of trade secrets).
292. See Padula v. Lilarn Props. Corp., 644 N.E.2d 1001 (N.Y. 1994); Melton v. Stephens, 13 N.E.3d
533 (Ind.App.2014), rehg denied (Oct. 14, 2014); Parrott v.Severs Trucking, LLC, 422 S.W.3d 478 (Mo.
App.2014) rehg and/or transfer denied (Feb. 28, 2014), transfer denied (Apr. 29, 2014); Huston v.Hayden
Bldg. Maint. Corp., 617 N.Y.S.2d 335 (N.Y.A.D. 1994); Salsman v.Barden & Robeson Corp., 564 N.Y.S.2d
546 (N.Y.A.D. 1990); Zangiacomi v.Saunders, 714 F.Supp.658 (S.D.N.Y. 1989); Clarke v.Sound Advice
Live, Inc., 633 N.Y.S.2d 490 (N.Y.A.D 1995); Hardzynski v. ITT Hartford Ins. Co., 643 N.Y.S.2d 122
(N.Y.A.D. 1996); Florio v.Fisher Dev., Inc., 765 N.Y.S.2d 879 (N.Y.A.D.2003).
293. 823 N.E.2d 478 (Ohio App.2004), appeal not allowed, 824 N.E.2d 541 (Ohio2005).
294. Mich. Comp. Laws 324.82126(6) (2004).
Torts
233
The Ohio court applied the Michigan statute, holding for the defendant. The court reasoned
that the parties common domicile and relationship in Ohio did not overcome the presumption
in favor of Michigan law, because Michigan had a special interest in applying its snowmobiling statute to snowmobiling activity within its borders. Noting that Michigan is a well-known
snowmobiling destination, the court found it important that Michigan has created a law
specifically regulating the operation of snowmobiles and recogniz[ing] a riders own
assumption of risk.295 The court concluded that Michigan law should govern [b]ecause the
place where the conduct causing injury occurred in Michigan, and [because] Michigan has
enacted specific legislation involving the risks of snowmobiling[.]296
Melton v. Stephens297 was another common-domicile case arising from a car collision in
another state, Illinois. The parties were Indiana domiciliaries driving independently through
Illinois. The collision occurred when the defendant violated Illinoiss traffic rules by driving
in excess of the speed limit and overtaking another car within 100 feet of an intersection. The
court held that Illinois law governed and rejected all of the plaintiff s arguments that the parties home-state of Indiana had a more significant connection. The court reasoned:
Because the drivers conduct in operating their motor vehicles prior to the collision will be the
focus of attention to determine liability, and that conduct was governed by the rules of the road
of the state in which the accident occurred, the presumption of the lex loci delicti remains
significant and is not overcome. [T]he conduct must be necessarily governed by Illinois Rules
of the Road as people do not take the laws of their home state with them when they travel but are
subject to the laws of the state in which they act.298
The court continued:

If the state of conduct has a law regulating how the tortfeasor or victim is supposed to act in the
particular situation, courts will apply that standard rather than the law of the parties residence.
In fact, this preference of the conduct-regulating law of the conduct state is virtually absolute,
winning out even over the law of other interested states. Courts as a practical matter recognize a
conduct-regulating exception to the normal interest-based choice-of-law methods.299
Countless other cases involving issues of road safety ignore the parties domiciles and focus
instead on the state of conduct and injury. As noted earlier, this category of issues is much
broader than commonly assumed. It includes not only traffic rules, but also the presumptions,
inferences, and other legal consequences and sanctions that states impose on violators of those
rules. For example, although all states of the United States require car drivers and passengers to wear seat belts, many states differ on some of the legal consequences of violating this
requirement. Some states allow evidence of failure to use a seat belt to establish the parties
relative fault and mitigate civil damages, but other states prohibit such evidence. Depending
295. Bertram, 823 N.E.2d at484.
296. Id.
297. 13 N.E.3d 533 (Ind. App.2014), rehg denied (Oct. 14,2014).
299. Id. at 542 (quoting Simon v.United States, 805 N.E.2d 798, 807n.12).
234
on their specific language and history, these seat belt rules can be procedural or substantive300
and, if the latter, can be either loss-distributing301 or conduct-regulating. If they fall into the
conduct-regulating category, then they apply to all persons driving or riding in the enacting
state, regardless of their domicile.
Johnson v. Ford Motor Co., Inc.302 is a case on point. In this product-liability action arising out of a single-car accident in Kentucky, an Illinois court held that Illinoiss pro-plaintiff
law should govern most issues, except the issue of the seat belt defense. Illinois prohibited the
introduction of evidence of seat belt nonuse, whereas Kentucky allowed such evidence to establish the plaintiff s contributory fault. The court noted that plaintiffs cannot reasonably expect
that a foreign states law will govern [a]damages award in a single-car incident merely
because an accident fortuitously occurs [in that state], but they know they are subject to the
traffic laws of another state when driving in that state.303 Kentucky had a strong interest in
maintaining driver safety, said the court, and one way Kentucky chooses to enforce its seatbelt
laws is by assessing comparative fault for a failure to wear a seatbelt.304 The court concluded
that because the plaintiffs engaged in this actionable conduct in Kentucky where they were
injured and acting contrary to Kentucky law Kentucky has a strong interest in enforcing its
seatbelt laws[,]305 and its law should govern thisissue.
300.In Barron v.Ford Motor Co. of Canada Ltd., 965 F.2d 195 (7th Cir. 1992), cert. denied, 506 U.S. 1001
(1992), the court stated that a North Carolina rule, which prohibited evidence of a plaintiff s failure to
wear a seat belt, would be procedural if it were motivated by concern that jurors attach too much weight
to a plaintiff s failure to wear his seatbelt[] and substantive if it were designed not to penalize persons who fail to fasten their seatbelts. Id. at 199. The court concluded the rule was substantive, because,
according to North Carolina precedents, it is founded on the desire of the North Carolina courts not
to penalize the failure to fasten ones seatbelt, because nonuse is so rampant in the state that the average
person could not be thought careless for failing to fasten his seatbelt. Id. at 200. See also Brown v.Ford
Motor Co., 67 F.Supp.2d 581 (E.D. Va. 1999)(characterizing a similar Virginia rule as substantive for
some purposes and procedural for other purposes).
301. For example, in Lankenau v.Boles, 990 N.Y.S.2d 394 (N.Y.A.D. 4 Dept. 2014), re-argument denied, 120
A.D.3d 1612 (N.Y.A.D. 4 Dept. Sept. 26, 2014), Pennsylvania, the accident state, prohibited presenting evidence of a seat belts nonuse. NewYork, which was the forum state and the domicile of the plaintiff and one
defendant driver, allowed consideration of a plaintiff s failure to wear a seat belt, but only in assessing damages and the plaintiff s mitigation thereof. For this reason, the NewYork court characterized the NewYork
rule as loss-allocating, rather than conduct regulating. The court held that New York law governed this
issue, because Pennsylvania had at best a minimal interest in applying its law, in contrast to NewYork,
which was the domicile of both parties. Lankenau, 990 N.Y.S.2d at 396. See also Garcia v. Gen. Motors
Corp., 990P.2d 1069 (Ariz. App. Div. 1 1999), review denied (Jan. 4, 2000)(applying Arizona rule allowing
evidence of seat belt nonuse, rather than Idaho rule prohibiting such evidence, in a case involving Arizona
plaintiffs injured in Idaho, after finding that both rules were designed to affect the amount of plaintiffs
damages, rather than the conduct of drivers or passengers); Noble v.Moore, 2002 WL 172665 (Conn. Super.
Jan. 7, 2002) (applying Connecticut rule prohibiting evidence of seat belt nonuse, rather than New York
rule allowing such evidence, but only for mitigation of damages (not for liability), in a case arising out of a
NewYork accident involving only Connecticut parties, after finding that both rules were designed to affect
the amount of damages available to plaintiffs, rather than the conduct of drivers or passengers).
302. 2003 WL 22317425 (N.D. Ill. Oct. 9,2003).
303. Id.at*5.
304. Id.at*4.
305. Id.
Torts
235
In Bonelli v.Giguere,306 the laws were reversed. The state of the accident, Connecticut, prohibited evidence of seat belt nonuse, but the plaintiff s home-state, NewYork, allowed evidence
of nonuse for the purpose of mitigating damages. AConnecticut court rejected the Canadian
defendants argument that the NewYork rule should apply. The court found that this rule was
a regulatory law specifically aimed at drivers traveling upon New York roadways, and thus
NewYork had no interest in applying it beyond its borders on Connecticut roadways.307
Conversely, the court concluded, Connecticut had the exclusive interest in applying its own
regulatory laws regarding roadway travel.308
Spinozzi v.ITT Sheraton Corp.,309 a case involving the issue of premises liability, is another
good illustration of how irrelevant the parties domicile is in conduct-regulation conflicts.
Spinozzi was an action by an Illinois domiciliary, who was injured in an American-owned
hotel while on vacation in Mexico. The plaintiff, who was contributorily negligent, could
recover under Illinoiss comparative negligence rule, but not under Mexicos contributory negligence rule. The plaintiff argued that, because defendant had solicited the plaintiff in Illinois,
the defendant should be deemed to have caused the injury in Illinois, and that this contact,
together with the plaintiff s Illinois domicile, made Illinois the state with the most significant
relationship.
Writing for the court, Judge Posner considered this argument as tantamount to saying that
each guest be permitted to carry with him the tort law of his state or country, provided that
he is staying in a hotel that had advertised there.310 Acceptance of the plaintiff s argument, said
Posner, would subject a hotel operator such as Sheraton to a hundred different bodies of tort
law,311 each imposing potentially inconsistent duties of care. A resort might have a system of
firewalls that under the law of some states or nations might be considered essential to safety
and in others might be considered a safety hazard.312 These dangers are avoided, said Posner,
by the application of the lex loci delicti, which is the only choice of law that wont impose
potentially debilitating legal uncertainties on businesses that cater to a multinational clientele
while selecting the rule of decision most likely to optimize safety.313 Posner concluded that,
in the absence of unusual circumstances, the state where the tort occurred is the state that
has the greatest interest in striking a reasonable balance among safety, cost, and other factors
pertinent to the design and administration of a system of tort law.314
306. 2004 WL 424089 (Conn. Super. Feb. 18,2004).

307. Id.at*2.
308. Id.at*3.
309. 174 F.3d 842 (7th Cir. 1999)(decided under Illinois conflictslaw).
310. Id. at845.
311. Id.
312. Id. (Illinois residents may want a higher standard of care than the average hotel guest in Mexico,
but to supplant Mexican by Illinois tort law would disserve the general welfare because it would mean that
Mexican safety standards (insofar as they are influenced by tort suits) were being set by people having
little stake in those standards.Id.)
313. Id. at846.
314. Id. at845.
236
In Carris v.Marriott Intl, Inc.,315 a similar case involving another Illinois domiciliary, who
was injured while vacationing in a hotel in the Bahamas, the plaintiff argued for the application
of Illinois law, because he made his hotel reservation in Illinois through a website accessible
there. Again, Judge Posner rejected the argument:
If [plaintiff] is right , [then] any hotel chain that has a website (and it is doubtful that any
hotel chain does not) subjects itself to the tort law of every country whose nationals stay at one
of the hotels in the chain, or at least every country that has a conflict of laws standard as spongy
as Illinois. The burden of compliance would be staggering, especially since different countries,
having different ideas about safety, might impose inconsistent tort duties. One jurisdiction might
think the absence of airbags from vehicles negligent; another might think their presence negligent because of the danger to children. So how would a hotel equip its airport shuttle van?316
Posners witty statements are correct, provided they are confined to issues of conduct regulation. For these issues, the cases have applied consistently, if not invariably, the law of the state
in which the hotel or other building is situated, which is the state of both the conduct and the
injury.317
For example, in Brooks v. General Casualty Co. of Wisconsin,318 a Wisconsin court said
that it would constitute officious intermeddling319 to apply the law of the guests home-state
(Michigan), rather than the law of the state in which the hotel was located (Wisconsin). The
court reasoned that application of Wisconsin law was justified by both parties expectations,
because:(1)The owner of a Wisconsin resort may reasonably predict that Wisconsin law will
govern the scope of their potential exposure to damage claims arising from actions undertaken
315. 466 F.3d 558 (7th Cir. 2006)(decided under Illinois conflictslaw).
316. Id. at 56162.
317. See, e.g., Abdelhamid v. Altria Group, Inc., 515 F. Supp. 2d 384 (S.D.N.Y. 2007); Barrett v. Foster
Grant Co., 450 F.2d 1146 (1st Cir. 1971); Bauer v.Club Med Sales, Inc., 1996 WL 310076 (N.D. Cal. May
22, 1996); Beatty v.Isle of Capri Casino, Inc., 234 F.Supp.2d 651 (E.D. Tex. 2002); Brooks v.Gen. Cas.
Co. of Wis., 2007 WL 4305577 (E.D. Wis. Dec. 7, 2007); Burns v.Geres, 409 N.W.2d 428 (Wis. App.1987);
Cummings v.Club Mediterrane, S.A., 2003 WL 22462625 (N.D. Ill. Oct. 29, 2003); DeMyrick v.Guest
Quarters Suite Hotels, 944 F.Supp.661 (N.D. Ill. 1996); Garvin v.Hyatt Corp., 2000 WL 798640 (Mass.
App. June 9, 2000); Gawlak v. Mt. Snow, Ltd., 2006 WL 361644 (Conn. Super. Jan. 31, 2006); Gorbey
v. Longwill, 2007 WL 891525 (D. Del. Mar. 22, 2007); Greco v. Grand Casinos of Miss., Inc.-Gulfport,
1996 WL 617401 (E.D. La. Oct. 23, 1996); Guidi v.Inter-Contl Hotels Corp., 2003 WL 1907901 (S.D.N.Y.
Apr. 16, 2003); Johnson v.Travelers Ins. Co., 486 N.W.2d 37 (Wis. App.1992); Lee ex rel. Lee v.Choice
Hotels Intl, Inc., 2006 WL 1148737 (Del. Super. Mar. 21, 2006); Marzoni v. Hyatt Corp., 2002 WL
31001833 (E.D. La. Sept. 5, 2002), reconsideration denied, 2002 WL 31319941 (Oct. 15, 2002); Mastondrea
v.Occidental Hotels Mgmt. S.A., 918 A.2d 27 (N.J. Super. A.D. 2007); McGovern v.Marriott Intl, Inc.,
1996 WL 470643 (E.D. La. Aug. 16, 1996); Naghiu v.Inter-Contl Hotels Group, Inc., 165 F.R.D. 413 (D.
Del. 1996); Nash v.Tindall Corp., 650 S.E.2d 81 (S.C. App.2007), rehg denied (Sept. 20, 2007), cert. denied
(S.C. June 26, 2008); Silverman v.Rosewood Hotels & Resorts, Inc., 2004 WL 1823634 (S.D.N.Y. Aug. 16,
2004); Simons v.Marriott Corp., 1993 WL 410457 (S.D.N.Y. Oct. 13, 1993); Stromberg v.Marriott Intl,
Inc., 474 F.Supp.2d 57 (D.D.C. 2007), aff d, 2007 WL 4165428 (D.C. Cir. Nov. 14, 2007); Toriumi v.Ritz-
Carlton Hotel Co., L.L.C., 2006 WL 3095753 (N.D. Ill. Oct. 27,2006).
318. 2007 WL 4305577 (E.D. Wis. Dec. 7,2007).
319. Id.at*3.
Torts
237
in that state[]; and (2)Residents of another state who chose to become guests at a Wisconsin
resort can reasonably foresee the application of Wisconsin law to disputes arising from their
stay.320 But the court also justified its decision in terms of state interests, concluding as follows:
Wisconsin[] has a substantial interest in what law applies to resolve disputes over accidents
that occur within its boundaries involving parties who live and work there. To the extent that law
impacts decisions people make about whether and how to operate a business and what price to
charge for the goods or services sold, application of another states law supplants the balance of
the costs and benefits that Wisconsins law reflects.321
3. Pattern 10:Conduct and Injury

in Different States That Prescribe
theSame Standards ofConduct
Cases in which the conduct and the injury occur in different states also present the false conflict paradigm, if the two states prescribe the same standard of conduct. In policy terms, these
cases are virtually indistinguishable from Pattern 1 cases. Whether the court applies the law of
the one state or the other state, the outcome will be the same. Hence, applying the law of the
conduct-state is both sensible and noncontroversial.
For example, in Pardey v.Boulevard Billiard Club,322 both the conduct-state, Rhode Island,
and the injury state, Massachusetts, had dram shop acts imposing civil liability on tavern owners whose intoxicated patrons caused injury to another. AMassachusetts patron caused such
injury in Massachusetts, after becoming intoxicated in defendants Rhode Island tavern. The
court noted Rhode Islands substantial governmental interest323 in applying the Rhode Island
act to violations occurring in that state, even when the resulting injury occurs in another state.
The court also noted that Massachusetts would not be offended by the application of the
Rhode Island dram shop act, because Massachusetts also had a dram shop act. Thus, the court
concluded, [a]pplication of Rhode Island law effectuates, rather than frustrates, the policies of both states.324 Other dram shop act cases have recognized this elementary principle, and
they have reached the same result under similar circumstances.325
Another group of Pattern 10 cases involves statutes that impose vicarious liability on car
owners for injuries caused by a driver using the car with the owners consent (hereafter referred
to as car-owner statutes). Although some courts have characterized these statutes as loss-
distributing, others have characterized them as conduct-regulating. Accepting for now the latter characterization, Pattern 10 appears when both the state of the critical conduct (i.e., the
320. Id. at *4 See also id. (Companies doing business in Wisconsin and insurers who sell them liability
policies have every reason to expect that Wisconsin law will govern the nature and extent of their liability
when accidents occur there.).
321. Id.at*5.
322. 518 A.2d 1349 (R.I.1986).
323. Id. at1352.
324. Id.
325. See S. Symeonides, Choice-of-Law Revolution221.
238
state in which the owner consented to the use of the car by another) and the state in which
the driver caused the injury have such statutes. In such cases, the court can apply the statute of
either state without altering the outcome.
In Elson v.Defren,326 two of the involved states, Idaho and NewYork, had similar car-owner
liability statutes. The only difference was that the text of the NewYork statute limited its application to cars with certain NewYork connections, which were absent in this case. The court
found that, because of this territorial limitation, the New York statute was inapplicable. But
the outcome remained the same, because under the law of both Idaho and NewYork, when
a vehicle is involved in an accident within their respective borders, the owner of the vehicle is
vicariously liable.327 Accordingly, said the court, without further inquiry, we apply Idaho law
to effectuate the public policy reflected in the statutes of both jurisdictions.328
4. Pattern 11:Conduct inState

withHigher Standard and Injury inState
withLower Standard ofConduct
The false conflict paradigm is also present in the cross-border torts falling within Pattern
11namely, cases in which the tortfeasors conduct violates the higher standard of the
conduct-state, but not the lower standard of the injury-statesuch as when the conduct-
state considers the particular conduct tortious and the injury state does not. On the one hand,
the conduct-state has an undeniable interest in applying its conduct-regulating rule to police
and deter conduct occurring within its territory and violating its law, even if the injury occurs
outside its borders. Indeed, the effectiveness of this rule is undermined, if it is not applied to
out-of-state injuries. On the other hand, the state of injury has no clear interest in applying its
more lenient conduct-regulating rule, because that rule is designed to protect conduct within,
not outside, that state. In other words, the application of the stricter conduct-regulating rule
of the conduct-state promotes the policy of that state in policing conduct within its borders
without subordinating the (non-implicated) policies embodied in the less strict rule of the
state of injury. Moreover, there is nothing unfair in subjecting a tortfeasor to the law of the
state in which he acted. Having violated the standards of that state, the tortfeasor should bear
the consequences of such violation and should not be allowed to invoke the lower standards
of anotherstate.
For these reasons, and in the absence of exceptional circumstances, the application of the
higher standard of the state of conduct is the most rational result. Indeed, as documented in a
study of all cross-border tort conflicts cases decided in states that have abandoned the lex loci
delicti rule, 83percent of the cases falling within this pattern, and involving conduct-regulation
issues, applied the law of the state of conduct.329
326. 726 N.Y.S.2d 407 (N.Y.A.D. 1 Dept.2001).

327. Id. at412.
328. Id.
329. For tabular presentation and discussion, see Symeonides, Cross-Border Torts 355361. This article
covers cases decided until 2009. Subsequent cases resulted in slightly increasing this percentage.
Torts
239
Schmidt v.Driscoll Hotel, Inc.330 and Rong Yao Zhou v.Jennifer Mall Restaurant, Inc.331 are
two well-known dram shop act cases exemplifying this pattern. In both cases, the tortious
conduct (serving alcohol to an intoxicated patron) occurred in a state that had a dram shop act
imposing civil liability on tavern owners for this conduct, while the resulting injury occurred
in a state that did not impose such liability. Both cases properly applied the dram shop act of
the conduct-state, after concluding that only that state had an interest in deterring this conduct, while the injury state did not have a countervailing interest in protecting the conduct.332
As the Zhou court stated, any interest the injury-state might have in protecting tavern owners
from civil liability is not implicated where the [tavern] is situated in [another state] and the
unlawful conduct occurred therein.333 All but one of the dram-shop act cases involving this
pattern have reached the same result.334
Another category of cases falling within this pattern involved car-owner liability statutes,
or similar common-law rules, imposing vicarious civil liability on car owners for injuries
caused by the driver who used the car with the owners consent. Many cases characterized
these statutes as conduct-regulating, and most of those cases applied the statutes of the state
in which the owner consented to the use of the car, even though the accident occurred in
a state that did not have such a statute.335 One such case is Veasley v. CRST International,
330. 82 N.W.2d 365 (Minn. 1957) (applying Minnesotas dram shop act to impose civil liability on a
Minnesota tavern owner whose intoxicated customer caused an accident in Wisconsin, injuring the plaintiff, who was also a Minnesota resident; Wisconsin did not have a dram shopact).
331. 534 A.2d 1268 (D.C. App.1987) (applying the District of Columbias dram shop act to impose civil
liability on a D.C.tavern owner whose intoxicated customer caused an accident in Maryland; Maryland
did not have a dram shopact).
332. In both cases, the victim was also a domiciliary of the conduct-state. Thus, the application of that
states law could have also been based on that states compensatory interests. But, even in the absence
of such interests, the application of the law of the conduct-state would be justified for reasons stated in
thetext.
333. Zhou, 534 A.2d at 1271. See also Patton v.Carnrike, 510 F.Supp.625 (N.D.N.Y. 1981)(involving a
Pennsylvania accident caused by Pennsylvania minors, who purchased alcohol in NewYork, in violation
of a New York statute prohibiting alcohol sales to minors, finding that New York ha[d]a compelling
interest in maintaining the integrity of the [statutes] deterrent effect, and that the goal of deterring
unlawful [alcohol] sales [was] well served by preserving the vendors complete liability irrespective of
where the injury occurred[,] and irrespective of the fortuity that the purchasers were residents of
Pennsylvania. Id. at 62930).
334. In addition to Schmidt and Zhou, see Trapp v. 4-10 Inv. Corp., 424 F.2d 1261, 126465 (8th Cir.
1970); Patton v.Carnrike, 510 F.Supp.625, 630 (N.D.N.Y. 1981); Bankord v.DeRock, 423 F.Supp.602,
606 (N.D. Iowa 1976); Rutledge v.Rockwells of Bedford, Inc., 613 N.Y.S.2d 179, 18081 (N.Y.A.D. 2 Dept.
1994); Quinn v.St. Charles Gaming Co., Inc., 815 So. 2d 963, 968 (La. App.3 Cir. 2002). The one case that
applied the non-liability rule of the state of injury is Johnson v.Yates, No. 94-6041, 1994 WL 596874, at
*23 (10th Cir. Nov. 2, 1994). But, in that case, part of the conduct also occurred in thatstate.
335. For cases reaching this result, see Garcia v. Plaza Oldsmobile Ltd., 421 F.3d 216, 22122 (3d Cir.
2005); Gaither v.Myers, 404 F.2d 216, 22122 (D.C. Cir. 1968); Aponte v.Baez, No. CV000802893, 2002
WL 241456, at *23 (Conn. Super. Jan. 30, 2002); Veasley v. CRST Intl, Inc., 553 N.W.2d 896, 897
98 (Iowa 1996); Sexton v. Ryder Truck Rental, Inc., 320 N.W.2d 843, 856 (Mich. 1982); Burney v. P V
Holding Corp., 553 N.W.2d 657, 65960 (Mich. App.1996); Lindsay v.Toyota Motor Sales, U.S.A., Inc.,
2005 WL 2030311, at *5 (S.D.N.Y. Aug. 22, 2005); McKinney v.S & S Trucking, Inc., 885 F.Supp.105,
10708 (D.N.J. 1995); White v.Smith, 398 F.Supp.130, 14142 (D.N.J. 1975); Dolan v.Sea Transfer Corp.,
942 A.2d 29, 38 (N.J. Super. A.D. 2008); Maffatone v.Woodson, 240 A.2d 693, 696 (N.J. Super. A.D. 1968);
240
Inc.,336 which applied Iowas car-owner statute to a case arising from an accident in Arizona,
which did not have such a statute. The plaintiff was an Iowa domiciliary, who was injured
in the accident while riding in a truck driven by his co-employee, which was owned by an
Iowa company. The court found that one of the purposes of the Iowa statute was to make
vehicle owners responsible for the actions of others to whom they have entrusted their motor
vehicles[,] and that the non-application of this statute to out-of-state accidents would
undermine [its] effectiveness[.]337 Following the Restatement (Second), the court held that
the Iowa statute should govern, because, based on the deterrence policy underlying [the
statute], Iowa ha[d] a substantial connection regarding the responsibility of all persons or
corporations with a local nexus that loan or lease motor vehicles to other entities.338
Gaither v. Myers339 involved a different type of car-owners liability statute. The place of
conduct, the District of Columbia, imposed civil liability on owners who leave their cars unattended without locking them and removing the keys. The state of injury, Maryland, would not
impose liability under the circumstances of this case. The plaintiff, a Maryland domiciliary,
was injured in a Maryland accident, caused by a car owned by the defendant, a DC resident.
The defendant left the key in the ignition of his car in DC, where it was presumably stolen and
driven into Maryland. The court concluded that this was a false conflict, in which only DC was
interested, and thus its law should govern.
The court reasoned that the main purpose of the DC rule was not to prevent theft for the
sake of car owners, but rather to promote the safety of the public in the streets [and] to
make the streets safer by discouraging the hazardous conduct [the rule] forbids.340 Thus, DC
had a significant, indeed powerful, interest in applying the rule to an actor who leaves his
car keys accessible to a thief in the District,341 setting in motion the chain of events likely to lead
to injury. The fact that this injury occurred in Maryland did not diminish DCs interests, nor
did it generate a countervailing Maryland interest in applying its defendant-protecting rule.342
Farber v.Smolack, 229 N.E.2d 36, 3839 (N.Y. 1967); Ames v.Cross, 575 N.Y.S.2d 991, 99293 (N.Y.A.D.
3 Dept. 1991); Erickson v.Hertz Corp., 2006 WL 1004385, at *5 (D. Minn. Apr. 17, 2006); Crowell v.Clay
Hyder Trucking Lines, Inc., 700 So. 2d 120, 12324 (Fla. App.2 Dist. 1997); Stallworth v.Hosp. Rentals,
Inc., 515 So. 2d 413, 416 (Fla. App.1 Dist. 1987); Oliver v.Davis, 679 So. 2d 462, 46668 (La. App.1 Cir.
1996); Stathis v.Natl Car Rental Sys., Inc., 109 F.Supp.2d 55, 58 (D. Mass. 2000); Newcomb v.Haywood,
2003 WL 138404, at *23 (Mass. Super. Jan. 8, 2003); Kline v.McCorkle, 330 F.Supp.1089, 109192 (E.D.
Va. 1971). For cases reaching the opposite result (applying the non-liability rules of the state of injury),
see Value Rent-A-Car, Inc. v.Harbert, 720 So. 2d 552, 55455 (Fla. App.4 Dist. 1998); Arias v.Figueroa,
930 A.2d 472, 47677 (N.J. Super. A.D. 2007); Kim v.Paccar Fin. Corp., 896 A.2d 489, 491 (N.J. Super.
A.D. 2006); Roper v. Team Fleet Fin. Corp., 2006 WL 288699, at *6 (N.Y. Sup. Feb. 7, 2006); Perkins
v.Dynasty Group Auto, 2003 WL 22810452, at *4 (Tex. App. Nov. 25, 2003). For tabular presentation and
discussion, see Symeonides, Cross-Border Torts 35556, 35859.
336. 553 N.W.2d 896 (Iowa1996).
337. Id. at899.
338. Id.
339. 404 F.2d 216 (D.C. Cir.1968).
340. Id. at222.
341. Id. at223.
342. See id. at 224 (Whatever interest Maryland had in protecting car owners, it would not seem to
extend to an owner like our defendant, who is not a citizen of Maryland especially where it is a
Maryland citizen who is being compensated for his injuries.).
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241
DAgostino v.Johnson & Johnson, Inc.343 is another illustration that a states interest in deterring substandard conduct within its territory is not diminished by the fact that the conduct
produces its effects in another state. In DAgostino, the wrongful conduct occurred in New
Jersey, but had its impact in Switzerland. Executives of a New Jersey corporation allegedly
orchestrated the retaliatory firing of an American citizen (who was employed by their wholly
owned Swiss subsidiary) for refusing to bribe Swiss officials in charge of regulating the licensing
of pharmaceuticals in Switzerland. If proven, this conduct would violate the Federal Corrupt
Practices Act, which New Jersey cases had incorporated into New Jersey law. Under Swiss law,
the alleged bribes would be considered consulting fees and would be lawful, as would the
employees firing.
In a unanimous opinion applying interest analysis, the New Jersey Supreme Court held that
New Jerseys interests in deterring wrongful conduct in New Jersey outweigh the Swiss interest
in the at-will employment relationship that would not seek to deter such conduct through its
civil law.344 The court emphasized that this case was not about regulating just Swiss employment relationships [but rather] about regulating the conduct of parent companies in New
Jersey that engage in corrupt practices through a subsidiarys employees.345 The court concluded that the strength of New Jerseys commitment to deterring commercial bribery, coupled
with the extensive New Jersey contacts,346 suggested a strong public interest in applying New
Jersey law, and that [a]ny opposing interest involving extraterritoriality did not outweigh
New Jerseys interests in preventing bribery, which could have a negative impact on public
health and safety in New Jersey.347
Finally, in AT & T Mobility LLC v. AU Optronics Corp.,348 the Ninth Circuit held that
Californias antitrust law (the Cartwright Act) applied to price-fixing conduct that occurred
partly in California, even if the injury, the purchases of the price-fixed products, did not take
place in California.349 The court pointed to the Acts conduct-regulating purpose by noting that
its goal was not to compensate consumers, but to ensure free competition:[T]he Cartwright
Act punish[es] violators for the larger purpose of promoting free competition. It is, like
antitrust laws generally, about the protection of competition, not competitors. Private damage
awards are just a tool by which these procompetitive purposes are carried out.350 Reasoning
343. 628 A.2d 305 (N.J.1993).

344. Id. at 307. The court noted that, although the fired employee was at all times a resident of Switzerland,
and had signed an at-will employment contract in that country containing a Swiss choice-of-law clause,
and although Switzerland had an interest in regulating the employment relationship between a Swiss
company and a Swiss resident, Switzerland did not have an interest in condoning corporate bribery
orchestrated beyond its boundaries. Id. at316.
345. Id. at311.
346. Id. at316.
347. Id. at315.
348. 707 F.3d 1106 (9th Cir.2013).
349. The plaintiffs, cellular phone companies, purchased from foreign manufacturers and distributors
(the defendants) for use in cellular phones liquid crystal display (LCD) panels worth billions of dollars.
The plaintiffs alleged that the defendants conspired to inflate the prices of LCD panels artificially, and they
offered evidence that part of the conspiratorial conduct took place in California.
350. 707 F.3d at 1112 (emphasis in original).
242
that California had a legitimate and compelling interest in preserving a business climate free
of fraud and deceptive practices[,]351 the court concluded that applying the Act to anticompetitive conduct undertaken within California would advance the Acts overarching goals
of maximizing effective deterrence of antitrust violations, enforcing the states antitrust laws
against those violations that do occur, and ensuring disgorgement of any ill-gotten proceeds.352
Other cases involving this pattern include: conflicts involving cross-border shootings,353
providing prohibited equipment to minors,354 consumer fraud,355 malicious prosecution,356 and
punitive damages.357
5. Pattern 12:Conduct inState withLower

Standard and Injury inState withHigh Standard
Pattern 12 involves the most difficult cross-border torts. In this pattern, the conduct in question does not violate the lower standard of the state of conduct, but it violates the higher
standard of the state of injury. In interest analysis terminology, these cases usually present the
true conflict paradigm, because each state has an interest in applying its own law. The first
state has an interest in protecting conduct that is lawful there, whereas the second state has an
interest in ensuring reparation for injuries that occurred there and preventing future injuries.
As in all true conflicts, the choice of either law is bound to encounter disagreement. However,
the argument for applying the higher standard of the state of injury is stronger in cases involving intentional torts than in negligence cases. Indeed, not many people would question the right
of a state to punish conduct that is intended to produce, and does produce, detrimental effects
within its territory, even when that conduct takes place outside the state. As Justice Holmes

353. See Hernandez v. United States, 757 F.3d 249 (5th Cir. 2014), rehg en banc granted, 771 F.3d 818
(5th Cir. 2014) (holding that the parents of a Mexican boy who was killed on the Mexico side of the
U.S.border, by a shot fired by a U.S. Border Patrol agent from the U.S.side of border, were entitled to a
Bivens action).
354. See Pittman v.Maldania, Inc., 2001 WL 1221704 (Del. Super.2001).
355. See Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430 (Tex. 2007); Janvey v. Brown, 767 F.3d
430 (5th Cir. 2014) (decided under Texas conflicts law); Peterson v. BASF Corp., 618 N.W.2d 821, 823
(Minn. App. 2000); Grant Thornton LLP v. Suntrust Bank, 133 S.W.3d 342, 35761 (Tex. App.Dallas
2004); In re Vivendi Universal, S.A. Sec. Litig., 381 F.Supp.2d 158 (S.D.N.Y. 2003); OKeefe v.Mercedes-
Benz USA, LLC, 214 F.R.D. 266, 274 (E.D. Pa. 2003); In re Warfarin Sodium Antitrust Litig., 212 F.R.D.
231, 251 (D. Del. 2002); Weiss v.Mercedes-Benz of N.Am., Inc., 899 F.Supp.1297, 1298 (D.N.J. 1995);
Randle v.Spectran, 129 F.R.D. 386, 39394 (D. Mass. 1988); Rakes v.Life Invrs Ins. Co. of Am., 2007 WL
2122195, at *9 (N.D. Iowa July 20, 2007); Dal Ponte v.Am. Mortg. Exp. Corp., 2006 WL 2403982, at *7
(D.N.J. Aug. 17,2006).
356. See Tri-State Hosp. Supply Corp. v.United States, 2007 WL 2007587, at *56 (D.D.C. July 6,2007).
357. The following cases imposed punitive damages under the law of the state of conduct, even though
the state of injury did not allow such damages:Fanselow v.Rice, 213 F.Supp.2d 1077, 108486 (D. Neb.
2002); Cunningham v.PFL Life Ins. Co., 42 F.Supp.2d 872, 892 (N.D. Iowa 1999); Jackson v.Travelers Ins.
Co., 26 F.Supp.2d 1153, 1163 (S.D. Iowa 1998); In re Air Crash Disaster at Stapleton Intl Airport, Denver,
Torts
243
stated almost a century ago, [a]cts done outside a jurisdiction, but intended to produce and
producing detrimental effects within it, justify a state in punishing the cause of the harm[.]358
To this end, federal courts have developed the so-called effects doctrine, at least, for
acts committed abroad and producing intended injuries in the United States. For example, in
Hartford Fire Insurance Co. v.California,359 the United States Supreme Court held that federal
antitrust legislation, the Sherman Act, applied to foreign conduct that was meant to produce
and did in fact produce some substantial effect in the United States.360 The Court applied the
Act to British insurance underwriters, who, while in London, engaged in conduct designed to
affect the California insurance market. Several lower court cases have applied the Sherman Act
in the same fashion.361 One case went so far as to uphold under the Act a criminal prosecution of a Japanese defendant for conduct in Japan (price-fixing) that was intended to, and did,
produce detrimental effects in the United States.362
In Morrison v.National Australia Bank Ltd.,363 Justice Scalia, writing for the Court, repudiated both the effects test and the conduct test as judicial-speculation-made-law that
lacked a textual basis.364 However, because the Morrison facts involved only the conduct test,
and not the effects test, Scalias repudiation of the latter test should be considered an obiter
dictum. In any event, shortly after Morrison, Congress restored both tests, at least with regard
to actions filed by the Securities and Exchange Commission.365
In cases involving negligent conduct, the argument for applying the higher standard of
the state of injury may be less powerful psychologically, but it is still a strong one, if the actor
could have foreseen that his conduct in one state would produce injury in the other state.
A review of the cross-border tort conflicts cases decided in states that have abandoned the
lex loci delicti rule shows that 87percent of the cases falling within this pattern and involving
conduct-regulation issues, have applied the law of the state of injury.366
Colo., on Nov. 15, 1987, 720 F.Supp.1445, 1453 (D. Colo. 1988); Ardoyno v.Kyzar, 426 F.Supp.78, 8384
(E.D. La. 1976); Bryant v.Silverman, 703P.2d 1190, 119597 (Ariz.1985).
358. Strassheim v.Daily, 221 U.S. 280, 285 (1911).
359. 509 U.S. 764 (1993) (discussed infra, at 64648).
360. Id. at796.
361. See Symeonides, Choice-of-Law Revolution 229; see also Restatement (Third) of Foreign Relations
402.
362. See United States v.Nippon Paper Indus. Co., 109 F.3d 1 (1st Cir. 1997). For other cases involving
intentional torts and reaching the same result, see United States v.Philip Morris USA Inc., 566 F.3d 1095,
113031 (D.C. Cir. 2009); Zenith Radio Corp. v.Matsushita Elec. Indust. Co., Ltd., 494 F.Supp.1161 (E.D.
Pa.1980).
363. Morrison v. National Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869 (2010).
364. Id. at2881.
365. See Dodd-Frank Wall Street Reform and Consumer Protection Act (Reform Act), Title IX (Investor
Protection Act), 929P(b), 111th Cong. 2d Sess., amending Section 27 of the Securities Exchange Act
of 1934 (15 U.S.C. 78aa). The amendment reaffirms the federal courts jurisdiction over violations of
the antifraud provisions of the Securities Exchange Act, involving:(1) conduct within the United States
that constitutes significant steps in furtherance of the violation, even if the securities transaction occurs
outside the United States and involves only foreign investors; or (2)conduct occurring outside the United
States that has a foreseeable substantial effect within the United States. Id. at (b)(1)(2).
366. For documentation, tables, and discussion, see Symeonides, Cross-Border Torts 36874.
244
One group of cases falling within this pattern, and involving negligent conduct, are dram
shop act cases, such as Bernhard v.Harrahs Club.367 Bernhard applied California law imposing
civil liability on a Nevada casino owner for conduct in Nevada (serving liquor to an apparently
intoxicated patron) that caused injury in California. Nevada law did not impose such liability.
An important factor in justifying the choice of California law was that the defendant should
have foreseen that its conduct in Nevada would produce detrimental effects in California. The
geographic proximity of the defendants operation to the California-Nevada border, the defendants active solicitation of California patrons, and the composition of defendants clientele
made it foreseeable that tavern patrons might drive into California and cause an accident there.
This foreseeability factor tips the scales and makes the application of the law of the injury-state
an appropriate solution to these otherwise difficult true conflicts.
Similarly, in Hoeller v.Riverside Resort Hotel,368 a case decided under the Restatement (Second),
the court applied Arizonas common law, which imposed civil liability on a Nevada casino owner
under circumstances identical to those in Bernhard.369 The court compared Nevadas interest in
free[ing] tavern owners, and other alcohol purveyors such as casinos, from the cost and inconvenience of incurring either civil or criminal liability with Arizonas strong interest in providing an
opportunity for its residents to recover full compensation from persons and businesses that contribute to automobile accidents on Arizonas highways [and] in holding tortfeasors responsible
for their actions foreseeable effects in Arizona.370 The court also noted the casinos proximity to
the Nevada-Arizona border, and it pointed out that the casino had gone to great lengths to attract
Arizona clientele. The court concluded that, under these circumstances, the casino should have
known that many of the patrons it seeks, many of those who sit at its tables and drink its [free]
liquor, have come to the casino from Arizona and will return to Arizona in an intoxicated
condition and may cause accidents that injure innocent third persons in Arizona.371
Other dram shop act cases have reached the same result, under similar circumstances.372
In one such case, Young v.Players Lake Charles, L.L.C.,373 the conduct-state, Louisiana, enacted
an anti-dram shop act that expressly insulated liquor servers from liability. A patron, who
became intoxicated in the defendants riverboat casino in Louisiana, drove into Texas and
caused injury there. The court noted that Louisianas appalling insulation of casino boats
who use free or discounted liquor as the bait to entice gamblers, while ignoring the consequences when those predictably intoxicated gamblers hit the streets in lethal vehicles[,]374 was
within Louisianas prerogatives, but only as long as the consequences of that decision were
felt exclusively in Louisiana. In this case, the consequences were felt in other states. Louisiana
367. 546P.2d 719 (Cal. 1976), discussed supra, at 166.
368. 820P.2d 316 (Ariz. App.1991).
369. An Arizona domiciliary became intoxicated in the Nevada casino and, on his return to Arizona,
caused an accident injuring the plaintiff, another Arizona domiciliary.
370. Hoeller, 820P.2d at320.
371. Id. at321.
372. See Blamey v. Brown, 270 N.W.2d 884, 891 (Minn. 1978); Zygmuntowicz v. Hosp. Invs., Inc., 828
F.Supp.346, 349 (E.D. Pa. 1993); Sommers v.13300 Brandon Corp., 712 F.Supp.702, 706 (N.D. Ill. 1989).
For cases reaching the opposite result, see Estates of Braun v.Cactus Petes, Inc., 702P.2d 836, 839 (Idaho
1985); Dunaway by Dunaway v.Fellous, 842 S.W.2d 166, 169 (Mo. App. E.D. 1992); Banks v.Ribco, Inc.,
933 N.E.2d 867 (Ill. App.3 Dist.2010).
373. 47 F.Supp.2d 832 (S.D. Tex.1999).
374. Id. at834.
Torts
245
casino-owners entice[d] residents of Texas and other states to flock in huge numbers to their
casinos to drink too much and return home in a murderous condition[.]375 The court applied
Texas law, which imposed liability on the casino owner.376
Another group of cases involved recordings of cross-border communications, which were
allowed in one state but considered tortious in another state. Kearney v.Salomon Smith Barney,
Inc.,377 is representative of this group.378 Kearney involved cross-border telephone calls between
employees of a national brokerage firm operating in Georgia and its California clients, including
the plaintiffs. The employees regularly recorded the telephone calls as permitted by Georgia law,
but not California law, which prohibited such recordings without the consent of all participants.
The California court acknowledged that Georgia had a legitimate interest in not having liability imposed on persons or businesses who have acted in Georgia in reasonable reliance on the
provisions of Georgia law[,]379 but it noted that California also had an interest in protecting the
privacy of telephone conversations of California residents while they are in California.380 Then,
employing its comparative impairment approach, the court concluded that Californias interests
would be severely impaired if its law were not applied[,] whereas Georgias interests would not
be significantly impaired if California law rather than Georgia law were applied[.]381 The court
reasoned that, if left undeterred, the practice of the Georgia defendants would represent a significant inroad into the privacy interest that [California law] was intended to protect.382 In contrast,
the application of California law would have a relatively less severe effect on Georgias interests[,]
because it would apply only to those telephone calls that are made to or received from California,
and Georgians conversing with Californians could easily comply with the laws of both states.383
375. Id. at 837. Blamey v.Brown, 270 N.W.2d 884 (Minn. 1978), cert. denied, 444 U.S. 1070 (1980) (decided
under Minnesotas better-law approach), was a closer case, if only because it was not an enticement case.
The defendant, who operated a small tavern on the Wisconsin side of the Wisconsin-Minnesota border,
neither advertised in Minnesota nor attempted to attract Minnesota customers. But he occasionally sold
alcohol to Minnesota residents and, in this case, he sold alcohol to a Minnesota minor, who drove back
to Minnesota and caused an accident there, injuring another Minnesota domiciliary. The court concluded
that the bars proximity to the border, as well as the defendants knowledge that some of his customers
were Minnesotans, allowed Minnesota courts to assume jurisdiction and to apply Minnesotas better
law, which imposed liability on the barowner.
376.In Bourgeois v. Vanderbilt, 417 Fed. Appx. 605, 2011 WL 1849309 (8th Cir. 2011), a similar case
involving an accident in Arkansas, but a Louisiana victim, the court applied Louisianas anti-dram shop
act, thus sparing a Louisiana casino from liability under the Arkansasact.
377. 137P.3d 914 (Cal.2006).
378. All other cases in this group reached the same result as Kearney. See Moore v.Greene, 431 F.2d 584,
590 (9th Cir. 1970); Wood v.Hustler Magazine, Inc., 736 F.2d 1084 (5th Cir. 1984); Butler v.Adoption
Media, LLC, 486 F.Supp.2d 1022, 102526 (N.D. Cal. 2007); Lord v.Lord, No. CV010380279, 2002 WL
31125621, at *1 (Conn. Super. Aug. 20, 2002). See also Church of Scientology of Cali., Inc. v.Green, 354
F.Supp.800 (S.D.N.Y.1973).
379. Kearney, 137P.3d at933.
381. Id. at937.
382. Id. at935.
383. Id. at 936. The court held that the plaintiffs request for injunctive relief should be allowed to proceed
under California law, but their claim for damages (for the defendants past conduct) should be dismissed
under Georgia law. Id. at939.
246
Another group of cases involved car-owner liability statutes or rules. If the car is leased,
or otherwise entrusted, to someone in a state that does not impose such liability, and the accident occurs in a state that does impose such liability, the resulting true conflict falls within
Pattern2.The majority of these cases applied the law of the state of injury, rather than the law
of the state of the rental transaction or entrustment.384
Among other cases applying the pro-plaintiff law of the state of injury, rather than the pro-
defendant law of the state of conduct, are those involving:environmental torts,385 bad faith insurance practices,386 or misrepresentation,387 and cases imposing punitive damages under the law
of the state of injury, even though the law of the state of conduct did not allow such damages.388
Licci ex rel. Licci v. Lebanese Canadian Bank, SAL (Licci I)389 is one of the few cases that
ruled the other way. The families of persons killed by terrorist attacks in Israel sued banks
operating in NewYork, alleging that the banks breached a legal duty to the plaintiffs by facilitating the transfer of money to the terrorist groups that carried out the attacks. Under Israeli
law, the banks could be held accountable under these circumstances, whereas under NewYork
law a bank did not owe a legal duty to non-customers for intentional torts committed by its
customers. The Second Circuit ruled for the bank, holding that New York law, rather than
Israeli law, would govern. The court discounted the fact that the injury had occurred in Israel,
and found that NewYork had the greatest interest in regulating behavior within its borders.390
In Elmaliach v. Bank of China Ltd.,391 New Yorks Appellate Division disagreed with the
Second Circuit and held that Israeli law would govern a substantively similar case.392 The
Appellate Division acknowledged NewYorks interest in regulating banks operating in NewYork,
but it concluded that, as the plaintiffs domicile and the place of the injuries, Israel had a very
384. See Brown v. Natl Car Rental Sys., Inc., 707 So. 2d 394, 397 (Fla. App. 3 Dist. 1998); Sierra
v.ABetterway Rent-A-Car, Inc., 863 So. 2d 358, 362 (Fla. App.3 Dist. 2003); Fu v.Fu, 733 A.2d 1133,
114950 (N.J. 1999); Pich v. Nugent, No. Civ. 05-82-B-K, 2005 WL 2428156, at *6 (D. Me. Sept. 30,
2005); Zatuchny v.Doe, 825 N.Y.S.2d 458, 45960 (N.Y.A.D. 1 Dept. 2006); Eby v.Thompson, No. Civ.A.
03C-10-010THG, 2005 WL 1653988, at *3 (Del. Super. Apr. 20, 2005); Brunow v. Burnett, No. CV93-
0062060, 1994 WL 149334, at *3 (Conn. Super. Apr. 6, 1994). For cases reaching the opposite result and
applying the pro-defendant law of the state of entrustment, see Oyola v.Burgos, 864 A.2d 624 (R.I. 2005);
Townsend v.Boclair, No. 4003463, 2007 WL 126933, at *5 (Conn. Super. Jan. 5,2007).
385. See Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066, 108182 (9th Cir. 2006); Nnadili
v.Chevron U.S.A., Inc., 435 F.Supp.2d 93, 98 (D.D.C.2006).
386. See Kenney v.Indep. Order of Foresters, 744 F.3d 901 (4th Cir.2014).
387. See FutureSelect Portfolio Mgmt., Inc. v.Tremont Group Holdings, Inc., 331P.3d 29 (Wash. 2014).
But see In re APA Assessment Fee Litig., 766 F.3d 39 (D.C. Cir.2014).
388. See Rice v.Nova Biomed. Corp., 38 F.3d 909, 916, 91920 (7th Cir. 1994); Ashland Oil, Inc. v.Miller
Oil Purchasing Co., 678 F.2d 1293, 1321 (5th Cir. 1982); Cooper v.Am. Express Co., 593 F.2d 612, 613
(5th Cir. 1979); In re Air Crash Disaster at Washington, D.C. on Jan. 13, 1982, 559 F. Supp. 333, 337
(D.D.C.1983).
389. 672 F.3d 155 (2d Cir.2012).
391. 971 N.Y.S.2d 504 (N.Y.A.D. 1 Dept.2013).
392.The plaintiffs alleged that the defendant Bank of China wired large sums of money, from its
NewYork branch to a bank account in China, knowing that the fund would then be wired to a terrorist
group in Israel.
Torts
247
strong interest in protecting its citizens and residents, who were the intended targets of the terrorist attacks inside Israeli territory[,]393 and that interest was greater than any NewYork had.394
In Licci ex rel. Licci v.Lebanese Canadian Bank, SAL (Licci II),395 the Second Circuit reaffirmed its previous decision, disagreeing with the Appellate Division. The Second Circuit concluded that, in cross-border, conduct-regulation conflicts,
it is the place of the allegedly wrongful conduct that generally has superior interests in protecting
the reasonable expectations of the parties who relied on [the laws of that place] to govern their
primary conduct and in the admonitory effect that applying its law will have on similar conduct
in the future.396
This statement is correct only if the actors conduct cannot reasonably be expected to cause
injury in another state. In contrast, when a person acts in one state, in circumstances that make
it predictable that the act will cause injury in another state that considers the conduct tortious,
it is the actors responsibility to:(1)prevent the injury, (2)insure against it, or (3)prepare to
be held accountable according the law of the state of injury. This then was the proper question
in Licci (I and II). If NewYork law would not consider the banks acts tortious, but Israeli law
would, then the court should examine whether the circumstances were such that the bank
should have foreseen the occurrence of the injuries in Israel. If the answer to that question were
affirmative, then the application of Israeli law would be entirely defensible, indeed appropriate.
6. Summary and Rule forConduct-R egulation Conflicts

The above review of conduct-regulation conflicts (other than punitive damages) suggests the
case law has produced clear and uniform solutions for most patterns of these conflicts. The case
law supports the following specific propositions:
(1) Intrastate torts (Pattern 9):When the injurious conduct and the resulting injury occur
in the same state (and the disputed issue is one of conduct-regulation), that states law
governs, regardless of where the parties are domiciled, and even if they are domiciled
in the same other state.397
393. Elmaliach, 971 N.Y.S.2d at514.

394. Id. at 516 ([W]e hold that Israel, the location of the plaintiffs injuries, has the greater interest in
seeing its laws enforced, and Israeli law should govern this action.).
395. 739 F.3d 45 (2d Cir.2013).
397. If the case also involves conflicting loss-distribution rules, and the parties are domiciled in the same
state, other than the state of conduct and injury, this rule will lead to dpeage, because the law of the
parties common domicile will govern the loss-distribution issues, while the law of the state of conduct
and injury will govern conduct-regulation issues. If dpeage is inappropriate in the particular case, the
court should exercise its discretion to avoid it. If one of the parties is domiciled in the state of conduct
and injury, there will be no dpeage, because the law of the same state will govern conduct-regulation
248
(2) Cases analogous to intrastate torts (Patterns 10):When the conduct and injury occur
in different states that have substantially the same conduct-regulating rules, the law of
the conduct-state governs.398
(3) Cross-border false conflicts (Pattern 11): When the conduct in question violates a
conduct-regulating rule of the conduct-state, that rule applies, even if that conduct
would not violate a conduct-regulating rule of the state of injury.399
(4) Cross-border true conflicts (Pattern 12):When the conduct does not violate a conduct-
regulating rule of the state of conduct, but does violate a conduct-regulating rule of the
state of injury, the rule of the state of injury applies, provided that the circumstances
are such as to make the occurrence of the injury in that state foreseeable.400
In summary, then, all of the above can be compressed into a simple one-sentence rule, as
follows:
Rule VI. Conflicts between conduct-regulating rules are governed by the law of the state of conduct, except when the injury foreseeably occurs in another state that imposes a higher standard
of conduct, in which case the law of the latter state governs.
This rule is simple, predictable, and balanced. It resolves the false conflicts cases of Patterns
911 in the only logical and noncontroversial way possible. The fact that the rule resolves
the true conflicts of Pattern 12 in a way that favors plaintiffs may appear to negate the claim
that it is balanced. This claim is valid, however, because the rule subjects the application of
the plaintiff-protecting law of the state of injury to the foreseeability proviso. Because of this
proviso, this result can be defended not so much on the basis of that states interest, or on the
basis of the favor laesi principle, but on the basis of basic principles of accountability. One
who predictably causes harm in a state whose law considers that harm tortious should be held
accountable under thatlaw.
The Louisiana codification has adopted a similar rule. Article 3543, which applies to
conduct-regulation conflicts, provides that issues of conduct and safety are governed by the
law of the state of conduct, unless the state of injury has a higher standard of conduct and the
occurrence of the injury in that state was objectively foreseeable, in which case the law of the
state of injury governs.401 The corresponding rule of the Oregon codification, which applies
to both conduct-regulation and loss-distribution issues, gives the choice directly to the tort
victim. Section 15.440(3)(c) of the codification provides that in cross-border torts the law of
issues, under this rule, as would be applicable to loss-distribution issues, under the rule proposed earlier
for those issues. See supra, at 215, 228.
398.For the possibility of dpeage between conduct-
regulation and loss-
distribution issues, see
previousnote.
399. The same law will also govern any disputed, loss-distribution issues. See supra, at 223, 228 (Rule4).
400. The same law will also govern any disputed, loss-distribution issues, at least if the injured person is
domiciled in the state of injury. See supra, at 223, 228.
401.La. Civ. Code Art. 3543 (2015) . For an identical rule, see Puerto Rico draft code art. 40. The
Louisiana article also contains an exception (not present in the Puerto Rico article), which requires the
application of the law of the forum state in cases in which the conduct was undertaken in that state by a
person who was domiciled in, or had another significant connection with, th[at] state. This home-town
justice exception is justifiably criticized in R. Weintraub, The Contributions of Symeonides and Kozyris
Torts
249
the state of conduct governs, but it also allows the application of the law of the state of injury,
if:(1)the activities of the tortfeasor were such as to make foreseeable the occurrence of injury
in that state, and (2)the victim formally requests the application of that states law by a pleading or amended pleading.402 Presumably, the victim will make this request only when the conduct in question does not violate the standards of the state of conduct, but does violate the
standards of the state of injury.
As noted earlier, at least 44 foreign codifications have also adopted a pro-plaintiff rule
based on the favor laesi principle, for either all or some cross-border torts. Several of those
codifications do not allow a foreseeability exception.403
Finally, it should be noted that, in all but one pattern of cases, the rule proposed above
will lead to the application of the same law to conduct-regulation issues as the law that would
govern loss-distribution issues under the rules proposed earlier for those issues. The only pattern in which the two sets of rules will lead to a different law, and thus dpeage, are cases
in which:(1)both the conduct and the injury occur in one state, and (2)both the tortfeasor
and the victim are domiciled in the same other state. In such cases, conduct-regulation issues
will be governed by the law of the state of conduct and injury, under the above rule, and loss-
distribution issues will be governed by the law of the common domicile, under the common-
domicile rule proposed earlier. In all other patterns, the two sets of rules will lead to the law
of the same state. Thus, the distinction between conduct-regulation and loss-distribution does
not lead to dpeage as frequently as some critics assume. At the same time, one could argue
that the distinction is not worth the candle, because it only makes a difference in one pattern
of casescommon-domicile intrastate torts. Indeed, this distinction is outcome-determinative
in only that pattern of cases. Nevertheless, the distinction remains a most valuable analytical
tool for both the courts in resolving difficult cases, and prospective litigants in predicting when
a court might deviate from the usually applicablelaw.
C. PUNITIVE-DAMAGES CONFLICTS
1.Introduction
Rules imposing punitive damages are, par excellence, conduct-regulating rules, in the prophylactic or deterrence sense, described by the NewYork Court of Appeals.404 But, as the adjective
punitive suggests, these rules are also meant to punish, not just to deter. Punishment or retribution is individual, but it is also backward-looking, in that it focuses on the individual wrongdoer
and his or her specific misconduct. The degree of punishment depends on both the egregiousness of the specific misconduct, and the wrongdoers financial capacity to bear and internalize the
to Making Choice of Law Predictable and Just:An Appreciation and Critique, 38 Am. J.Comp. L. 511,
51516 (1990). For a muted response, see S.Symeonides, Louisiana Exegesis 71314.
402. Or. Rev. Stat. 15.440(3)(c) (2015). In such a case, the request shall be deemed to encompass all
claims and issues against the particular defendant. Id. This provision is subject to an exception, if a party
demonstrates that its application to a disputed issue of the law of another state is substantially more
appropriate, under the principles of the codifications general approach, in which case the law of the other
state applies to thatissue.
403. See supra, at 224.
404. Padula v.Lilarn Props. Corp., 644 N.E.2d 1001, 1002 (N.Y.1994).
250
punishment. Deterrence or prevention is more general and forward-looking, in that it focuses

not only on the individual wrongdoer, but also on others who might consider engaging in similar misconduct in the future. Deterrence is achieved by attaching a price tag to certain conduct,
which is much higher than the gains one might expect from engaging in that conduct. Thus,
punitive damages differ in important respects from compensatory damages, which are designed
to make the victim whole, and hence are proportional to the victims harm or loss.405
The fact that compensatory damages are proportional to the victims loss explains why they
often cannot effectively punish or deter economically powerful wrongdoers, especially corporate offenders, which have the ability to pass this additional cost to the consumers. The fact
that punitive damages are awarded to a private plaintiff in a civil trial indicates their differences from criminal and civil fines, both of which inure to a public fund.406 At the same time,
the fact that in a civil trial the defendant does not enjoy certain procedural protections of the
criminal law (such as, proof beyond a reasonable doubt, the right against self-incrimination,
and the protection from double jeopardy and excessive fines) is one of the reasons that punitive damages are often controversial,407 although they are subject to continuous scrutiny by
the U.S. Supreme Court. In any event, the function of conflicts law is not to gauge the wisdom
of a states substantive law, but rather to delineate its reach. This Section attempts to do so, by
reviewing the experience of American courts in resolving punitive-damage conflicts.408

and Typical Patterns
The fact that punitive damages are meant to punish the tortfeasor (in addition to deterring
others) means:(1)that the stakes are much higher than in other conduct-regulation conflicts,
and thus a more cautious choice-of-law analysis is necessary; and (2) that this analysis must
include, as a very pertinent contact, the tortfeasors domicile (or principal place of business,
or other similar affiliation). Conversely, the fact that punitive damages are designed to punish
405. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003) ([C]ompensatory and
punitive damages, although usually awarded at the same time by the same decisionmaker, serve different
purposes... . Compensatory damages are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendants wrongful conduct . By contrast, punitive damages serve a broader
function; they are aimed at deterrence and retribution.) (internal quotation marks omitted).
406. Although a recent movement to direct a portion of punitive damages to a public fund tends to blur
this distinction, that movement has had only limited success so far. See S. Symeonides, Resolving Punitive
Damages Conflicts, 5 Y.B. Priv. Intl L. 1, 23 (2003).
407. Yet, precisely because punitive damages are sought, and their prerequisites proven, by private plaintiffs, rather than by the state, one could argue that the above-procedural protections of the criminal law
are largely unnecessary and perhaps inappropriate, for private plaintiffs possess neither the coercive power
of the state nor its superior investigatory resources. Moreover, although punitive damages can carry severe
economic consequences, they do not endanger the defendants life or liberty. In any event, many states have
recently raised the burden of proof for punitive damages from preponderance of the evidence (which is
the typical standard in civil cases) to clear and convincing evidence. See id. at 3.One state, Colorado, has
further raised the standard to beyond reasonable doubt, which is the criminal law standard.
408. Today, all but one U.S.state allow punitive damages, at least in some cases. See D. Owen, M. Madden
& M. Davis, Madden & Owen on Products Liability 18:1 n.41 (vol. 2) (3d ed. 2002). Only Nebraska prohibits punitive damages in all cases. Even the mixed jurisdiction of Louisiana allows punitive damages for
Torts
251
and deter tortfeasors, rather than to compensate victimswho, ex hypothesi, are made whole
through compensatory damagesmeans that the victims domicile should, in principle, be
irrelevant in punitive-damage conflicts.
If the above premises are correct, then one can conclude that the pertinent contacts in these
conflicts are:(1)the tortfeasors domicile, (2)the place of the wrongful contact, and (3)the place
of the resulting injury. Astate that has one or more of these contacts will likely have an interest in
applying its law, whether or not it imposes punitive damages. For example, the state of the conduct
has the right to regulate (police, deter, punish, or protect) conduct within its borders. Similarly, the
state in which this conduct produces its effectsthe injuryhas a right to determine which sanctions are appropriate for such conduct. Finally, the state of the defendants domicile has the right to
determine whether the sanction of punitive damages should be imposed on one of its domiciliaries.
If the law of that state provides for punitive damages, the application of that law serves its underlying purpose of punishing that tortfeasor and deterring him (and others) from engaging in similar
conduct in the future. Conversely, if that law prohibits punitive damages, then its application would
serve its underlying purpose of protecting the tortfeasor from excessive financial exposure.
Putting factual contacts and substantive laws409 in the mix produces eight typical patterns
of potential (or actual) punitive-damages conflicts. Table 20, following page, depicts these patterns. The last three columns represent the state or states that have the relevant contacts:the
place of injury, the place of the tortfeasors (hereafter defendant) conduct, and the defendants
domicile or principal place of business. The first column, representing the plaintiff s home-
state, is left blank, in order to underscore the point that this should be an irrelevant factor in
resolving punitive-damage conflicts.
As discussed below, American courts have awarded punitive damages in cases falling
within each one of the above eight patterns. The thesis of this section is that the award of punitive damagesis:
(1) Entirely appropriate in cases falling within Patterns1316;
(2) Defensible in cases falling within Patterns 1719;and
(3) Inappropriate in cases falling within Pattern20.
The balance of this Section examines the cases of each pattern, in the aboveorder.
injury caused by drunk drivers and for sexual abuse of minors. See La. Civ. Code Arts. 2315.4 and 2315.7
(2015). Although most American states allow punitive damages in general, these states often disagree
on the specific cases, causes of action, or other circumstances, in which punitive damages are available.
When such disagreements exist, the resulting conflicts are as intense as they come, if only because they
involve large sums ofmoney.
409. The following review assumes that a state either imposes or does not impose punitive damages for
the particular conduct. It is true that in some cases, states that impose punitive damages may differ on the
available or permissible amounts. For example, one state may limit the amount, either through an absolute cap or in proportion to compensatory damages. These cases present a choice-of-law problem, only if
the claimant requests, and the court is prepared to grant, an amount exceeding this limit. Similarly, two
states that allow punitive damages may differ on the applicable burden of proof. For example, in Kukoly
v.World Factory, Inc., 2007 WL 1816476 (E.D. Pa. June 22, 2007), one state, Texas, had a higher standard
of proof (clear and convincing evidence) for punitive damages, and it limited their amount, whereas the
other state, Pennsylvania, had a lower standard of proof (sufficient evidence), and it did not limit the
amount. For the sake of simplicity, this section does not discuss these issues.
252
Table20. Patterns inPunitive Damages Conflicts

Pattern
Defendant
Conduct
Injury
Plaintiff
13
Pun.
Pun.
Pun.
---
14
15
16
Pun.
No pun.
Pun.
Pun.
Pun.
No pun.
No pun.
Pun.
Pun.
---
---
---
17
18
19
Pun.
No pun.
No pun.
No pun.
Pun.
No pun.
No pun.
No pun.
Pun.
---
---
---
20
No pun.
No pun.
No pun.
----
3. Pattern 13: All Three Contacts

In cases falling within Pattern 13, a state that has all three pertinent contacts (or three states
with each having a pertinent contact) imposes punitive damages. For example, a defendant acts
in his home-state and causes injury there to a domiciliary of another state. If the law of the former state imposes punitive damages for this conduct, that state has every interest in applying
its law to punish that defendant and to deter other defendants from engaging in similar conduct in the future. Even if the victims home-state prohibits punitive damages, such prohibition
need not be heeded, because it is designed to protect tortfeasors acting or domiciled in that
state, rather than to prevent victims domiciled there from recovering punitive damages. In the
United States, this solution is widely accepted, even in states such as Louisiana, which prohibits
punitive damages in the vast majority of cases.410
The same rationale should apply if the state that denies punitive damages is the forum state,
whether or not it is also the victims home-state. In most cases, the forums denial of punitive
damages is designed to protect either forum defendants or forum conduct, or both, and in this
case the forum has neither of these contacts. Thus, the award of punitive damages under the
law of the other state does not undermine the forums policies.
4. Pattern 14:State(s) ofDefendants

Domicile and Conduct Impose(s)
Punitive Damages
In Pattern 14, the tortfeasor is domiciled in a state that imposes punitive damages and, while in
that state, engages in conduct that causes injury in another state that does not impose punitive
410. See La. Civ. Code Art. 3546 (2015), which provides that punitive damages may be awarded, if such
damages are available under the law of a state (or states) that have any two or all of the following contacts:place of conduct, place of injury, or defendants domicile. Most civil law systems take exactly the
opposite position. For a discussion of the Swiss position, see S. Symeonides, Punitive Damages 34,3133.
Torts
253
damages.411 This pattern presents the false conflict paradigm. The first state has an interest in
applying its punitive-damages law to punish the tortfeasor, who engaged in egregious conduct
in that state, and to deter similarly situated, potential tortfeasors. That state has an obvious
and substantial interest in ensuring that it does not become either a base or a haven for
law breakers to wreak injury [elsewhere].412 In contrast, the state of injury does not have an
interest in applying its non-punitive damages law, because that law is designed to protect tortfeasors, who are either domiciled in or act in, that state, neither of which is the case here. Thus,
the application of the law of the first state promotes the deterrence policies of that state without
impairing the defendant-protecting policies of the state of injury.
Many cases involving this pattern have reached this precise result.413 One example is In
re Air Crash Disaster at Stapleton Intl Airport, Denver, Colo., on Nov. 15, 1987,414 a case arising from the crash of a passenger plane in Colorado. In this case, Texas was both the airlines
principal place of business and the place of the conduct most likely responsible for the crash.
Texas, but not Colorado, provided for punitive damages in wrongful death actions. The court
reiterated a principle, first articulated in In re Air Crash Disaster Near Chicago, Illinois on May
25, 1979,415 and since followed in most air disaster cases to the effectthat,
Because the place of injury is much more fortuitous than the place of misconduct or the principal
place of business, its interest in and ability to control behavior by deterrence or punishment, or
to protect defendants from liability is lower than that of the place of misconduct or the principal
place of business.416
The Stapleton court concluded that, because Texas was both the site of the critical conduct
and the defendants principal place of business, its relationship to this litigation is most significant, and thus its law should govern.417 The court acknowledged that Colorado might have
an interest in regulating the conduct of corporations entering its territory to do business, but
it concluded that this interest was somewhat lessened when a foreign corporation attempts to
shield itself from the more onerous laws of its home state[.]418
411.A functionally analogous variation of this pattern appears when the tortfeasor acts outside his
home-state, but in a state that also imposes punitive damages.
412. In re Simon II Litig., 211 F.R.D. 86, 176, 2002 WL 31323751, at *91 (E.D.N.Y. Sept. 19, 2002), vacated
and remanded on grounds not relevant here, 407 F.3d 125 (2d Cir.2003).
413. In addition to the cases discussed in the text, infra, see, e.g., LewisDeBoer v. Mooney Aircraft
Corp., 728 F. Supp. 642 (D. Colo. 1990); Offshore Logistics, Inc. v. Bell Helicopter Textron, 1995 WL
555593 (E.D. La. Sept. 15, 1995); Cunningham v.PFL Life Ins. Co., 42 F.Supp.2d 872 (N.D. Iowa 1999);
Ardoyno v. Kyzar, 426 F. Supp. 78 (E.D. La. 1976). But see Rufer v. Abbott Labs., 2003 WL 22430193
(Wash. App. Oct. 27, 2003), aff d in part, reversed in part, 114P.3d 1182 (Wash. 2005); Kemp v.Pfizer, Inc.,
947 F.Supp.1139 (E.D. Mich. 1996); Nw. Mut. Life Ins. Co. v.Wender, 940 F.Supp.62 (S.D.N.Y.1996).
414. 720 F.Supp.1445 (D. Colo.1988).
416. 720 F.Supp. at1453.
417. Id.
418. Id. Conversely, said the court, the knowledge that the law of a corporations principal place of
business will be applied in the event of litigation was not likely to discourage corporations like [the
defendant-airline] from doing business in Colorado.Id.
254
Another example is Jackson v.Travelers Insurance Co.,419 a case involving an action for bad
faith insurance practices. In this case, the court held that Iowas punitive-damages law applied
to the insurers conduct in that state, even though the resulting injury to the Nebraska plaintiff
occurred in Nebraska, which did not allow for such damages. The court found that it [was]
not in the interest of the Nebraska legislature to extend protection to all insurance companies
nationwide regardless of whether they are Nebraska businesses[,]420 and that Nebraska ha[d]
no interest in preventing punitive [damages] awards from other states to Nebraska citizens.421
On the other hand, said the court, because Iowa was the location of the cause of the injuries[,] Iowa ha[d] a significant interest in using punitive damages to punish bad faith conduct that occurs in Iowa[,]422 and [f]ailure to apply Iowa law would wholly frustrate Iowas
interest in deterring outrageous conduct.423
Several products liability cases, which are discussed in the next chapter, have also allowed
punitive damages under the law of the manufacturers home-state and place of manufacture.424
For example, in Singh v. Edwards Lifesciences Corp.,425 a products liability action filed by a
Washington plaintiff against a California defendant, the Washington court applied California
law, which allowed punitive damages, rather than Washington law, which prohibited them.426
The court concluded that California had a more significant relationship, because the defendant
had its headquarters in California and discovered the products defect in that state several years
earlier, but it failed to correct it or warn users accordingly. The court also rejected the defendants argument that Washingtons prohibition of punitive damages was designed to protect all
manufacturers, or to prevent plaintiffs from receiving a windfall:
Even though Washington has a strong policy against punitive damages, it has no interest in protecting companies that commit fraud. Where, as here, an entity headquartered in California,
committed the conduct in California that resulted in the plaintiff s damages, California ha[s]the
greater interest in deterring such fraudulent activities.427
In Smith v.Alza Corp.,428 another products liability action, a New Jersey court applied New
Jersey law, which imposed punitive damages, rather than Alabama law, which did not. The
plaintiff suffered a stroke in Alabama after using a drug that the New Jersey defendant packaged
and labeled in New Jersey. The court found that New Jersey had a substantial and distinctive
419. 26 F.Supp.2d 1153 (S.D. Iowa1998).
420. Id. at1162.
421. Id. at1165.
423. Id. at1164.
424. In addition to the cases discussed in the text, see Brown v.Johnson & Johnson, 64 F.Supp.3d 717
(E.D. Pa. 2014); Bryant v. Wyeth, 879 F. Supp. 2d 1214 (W.D. Wash. 2012); LewisDeBoer v. Mooney
Aircraft Corp., 728 F.Supp.642 (D. Colo.1990).
425. 210P.3d 337 (Wash. App.2009).
426. The product in question was a heart monitor, manufactured in California and used during a heart
surgery at a Washington hospital. The monitor malfunctioned and partially burned the patientsheart.
427. Singh, 210P.3d at339.
428. 948 A.2d 686 (N.J. Super. A.D.2008).
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255
governmental interest based on a strong policy of deterrence that seeks to discourage domestic
entities from the manufacture and distribution within this State of unsafe products[.]429 The
court held that this interest, and Alabamas lack of a countervailing interest,430 amply justifie[d]
the application of New Jerseys strict products liability law, liberal discovery rule, and punitive
damages, given defendants material connection to New Jersey by virtue of the fact that the
allegedly defective product was packaged and labeled here and then shipped from this State[.]431
In contrast to the above cases, in Townsend v.Sears, Roebuck and Co.,432 a case presenting the
same pattern, the Illinois Supreme Court reversed a lower court decision that allowed punitive
damages under Illinois law. Illinois was the defendants principal place of business, as well as the
place where key design decisions and product testing took place. Instead, the court held that
the law of Michigan, which was the victims home-state and place of injury, should govern, thus
denying punitive damage.433 The court relied heavily on Section 146 of the Restatement (Second),
which calls for the application of the law of the place of injuryhere, Michiganunless another
state has a more significant relationship, under the principles stated in Section 6. The court
emphasized repeatedly that this is a strong presumption,434 and twice quoted a Restatement
comment that only in relatively rare situations will the state of injury bear[] little relation to
the occurrence and the parties.435 The court found that Michigan had a strong relationship to
the occurrence and the parties[,]436 because it was the victims home-state and the place where
the product was purchased and caused the injury. Thus, the court was unable to conclude that
Illinoiss relationship was so pivotal as to overcome the presumption that Michigan, as the state
where the injury occurred, is the state with the most significant relationship.437
The court also concluded that the two states had an equal interest in applying their respective rules, but only because it misidentified those interests. For example, the court did not
mention any Illinois interest in deterrence, and it erroneously assumed that Michigan had an
interest in applying its pro-defendant law at the expense of the Michigan plaintiff.438 In contrast, the intermediate court found that:(1)Illinois had a strong interest in applying its law
to regulate culpable conduct occurring within its borders, induce the design of safer products,
and deter future misconduct[],439 and (2) Michigan did not have an interest in applying its
429. Id. at 69697.

430. See id. at 700 (noting that Alabama had no discernable interest in extending its [pro-defendant]
products liability law to [this] defendant, and thereby would interpose a hindrance to its resident obtaining full compensation for his injuries.).
431. Id. at698.
432. 879 N.E.2d 893 (Ill.2007).
433. The product in question was a riding lawn tractor, which was sold from a Sears store in Michigan
and caused injurythere.
434. Townsend, 879 N.E.2d at 905, 908,909.
435. Id. at 904, 909 (quoting Restatement (Second) 146, cmt.c.).
436. Id. at906.
437. Id. at907.
438. See id. at 909 (Michigan has an equally legitimate interest in the remedies to be afforded its residents who suffer such tort injuries.).
439.Townsend ex rel. Townsend v.Sears, Roebuck & Co., 858 N.E.2d 552, 55960 (Ill. App.2006). See
also id. at 560 (noting that, because Illinois was the defendants principal place of business and the state
256
pro-defendant law, because such application would not materially advance the goal of protecting its resident producers in this case[,] and Michigans policy could not have been
designed to punish its plaintiffs.440
5. Pattern 15: State(s) of Conduct

and Injury Impose(s) Punitive Damages
In Pattern 15, a tortfeasor domiciled in a state that does not impose punitive damages
engages in conduct in another state that does impose such damages, and he or she causes
injury in the latter state.441 This pattern presents the direct or true conflict paradigm, because
both states have an interest in applying their laws. The first state has an interest in protecting
its domiciliary tortfeasor from punitive damages, whereas the second state has an interest
in deterring conduct in its territory that causes injury there. On balance, the application of
the law of the latter state is entirely justified. The fact that the defendant acted outside his
home-state weakens any argument that he relied on that states law, and the fact that he acted
in the other state destroys any argument of unfair surprise from the application of the latter
stateslaw.
Cases involving this pattern have reached the result suggested above by applying the
punitive-damages law of the state of conduct and injury. For example, in Horowitz v.Schneider
National, Inc.,442 the court applied Wyomings punitive-damages law to an action arising from
a Wyoming traffic accident, even though none of the parties were Wyoming domiciliaries.
The court found that Wyoming had a paramount interest in the manner in which its highways are used and the care exercised by drivers.443 The court reiterated that [t]he policy
behind punitive damages is not compensation of the victim [but rather] is deterrence
through public condemnation.444
Likewise, in Isley v.Capuchin Province,445 an action for sexual abuse, arising out of events
in Wisconsin and filed against an out-of-state religious order, a Michigan court applied
Wisconsin law, which imposed punitive damages. The court concluded that Wisconsins
interest outweigh[ed] Michigans interest[,]446 because Wisconsin had a strong state interest in protecting minors in Wisconsin from sexual abuse and in punishing those found
guilty[.]447
where all the design decisions were made, as well as the place where the decision was made to place the
product into the stream of commerce, Illinois had a significant interest in applying its design defect standards to effectuate the regulatory policy reflected in its law.).
440. Id. at559.
441. Afunctionally analogous variation of this pattern is when the injury occurs in a third state that also
imposes punitive damages.
442. 708 F.Supp.1573 (D. Wyo.1989).
443. Id. at 1577 (quoting Brown v.Riner, 500P.2d 524, 526 (Wyo. 1972)).
444. Id.
445. 878 F.Supp.1021 (E.D. Mich.1995).
446. Id. at1023.
447. Id. at1024.
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In Villaman v. Schee,448 the court applied Arizonas punitive-damages law to a wrongful death action filed by the estate of a Mexican domiciliary, who was killed in an Arizona
accident caused by a non-Arizona defendant. The court reasoned that Arizona tort law was
designed in part to deter negligent conduct within its borders[,] and thus, Arizona ha[d] a
strong interest in the application of its laws allowing for punitive damages.449 Similarly, in
Wang v.Marziani,450 the court reiterated that the imposition of punitive damages is a conduct-
regulating rather than a loss-allocating rule[,]451 and it held that Pennsylvanias punitive damages rule applied to a Pennsylvania traffic accident involving out-of-state parties, because
Pennsylvania had an overwhelming interest in regulating the conduct within its borders.452
Finally, in Schoeberle v.United States,453 the court held that the law of Iowa, which was the
state of both the pertinent conduct and the injury, should govern the imposition of punitive
damages, even though the plaintiffs and some of the defendants were domiciled in Wisconsin,
which did not allow such damages. The court concluded that Wisconsins interest in protecting
its resident defendant from excessive liability was outweighed by Iowas interest in applying
its punitive damage law to conduct within its borders.454 The court reasoned that [w]hen a
balance between punishment and deterrence on the one hand, and protection from excessive
liability on the other, must be struck, it is fitting that the state whose interests are most deeply
affected should have its local law apply.455 That state was Iowa, because, as the place of both
the conduct and the injury, Iowa had an obvious interest in punish[ing] those responsible for [the] misconduct [and] in deterring such misconduct and occurrences in the
future[.]456
6. Pattern 16:State(s) ofInjury

and Defendants Domicile
In Pattern 16, a defendant domiciled in a state that imposes punitive damages engages in conduct in another state that does not impose punitive damages, and he or she causes injury in
the defendants home-state. This scenario is factually uncommon, but a variation of it is not
448. 15 F.3d 1095, 1994 WL 6661 (9th Cir. Jan. 10,1994).

449. Id.at*4.
450. 885 F.Supp.74 (S.D.N.Y.1995).
451. Id.at77.
452. Id. at7778.
453. 2000 WL 1868130 (N.D. Ill. Dec. 18,2000).
454. Id. at*14.
455. Id. at *13 (quoting In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 644 F.2d 594, at
613 (7th Cir. 1981)).
456. Id. In addition to the above cases, see Townes ex rel. Estate of Townes v. Cove Haven, Inc., 2004
WL 2403467 (S.D.N.Y. Oct. 27, 2004) (applying Pennsylvanias punitive-damages law to an action filed
by a NewYork guest against the Florida owner of a Pennsylvania resort for injury suffered on the premises: [T]he state in which the tort occurred has strong interests in deterring future tortious conduct
within its jurisdiction and in protecting the reasonable expectations of the parties that their actions would
258
as unlikelywhen, in the same case, the defendants conduct causes injury in a third state that
also imposes punitive damages.
In re Air Crash Disaster at Washington, D.C.on January 13, 1982457 involved the latter pattern. The defendant, a Florida-based airline, engaged in conduct in Virginia that caused one
of its airplanes to crash in the District of Columbia. Both Florida and D.C., but not Virginia,
imposed punitive damages. The court applied D.C.law, thus allowing punitive damages. It is
true that, when the conduct occurs in a state that does not allow punitive damages, that state
has a certain interest to apply its law to protect that conduct. However, the fact that the consequences of that conduct are felt in another state, and are caused by a tortfeasor domiciled in a
third state that also imposes punitive damages, suggests that (on balance) the interests of the
conduct-state must give way to the interests of the other two states.
7. Pattern 17: Only the Defendants

Home-S tate Imposes Punitive Damages
In Pattern 17, the defendants home-state imposes punitive damages, and thus it has an
interest in punishing the defendant and deterring others from engaging in similar conduct,
but both the defendants conduct and the resulting injury occur in another state (or states)
that does not impose punitive damages. In such a case, one could argue that the latter state
has an interest in protecting, if not the defendant as such, at least the defendants activity
within its territory, which may be beneficial in other ways, such as by providing jobs for the
local population. The resulting conflict is not easy to resolve, and this explains why courts
encountering such conflicts have reached different results. Although most courts deny punitive damages,458 a few courts have allowed them, by applying the law of the defendants
domicile.
be regulated by the state in which they were acting. Id. at *2); Rice v.Nova Biomed. Corp., 38 F.3d 909
(7th Cir. 1994)(applying Illinois law to a defamation action filed against a Massachusetts defendant, who
defamed an Illinois plaintiff by statements made in Illinois; Illinois, but not Massachusetts, imposed punitive damages). Also included in this group are certain products liability cases (discussed in the next chapter), in which the court found that the manufacturers wrongful conduct occurred not only in the state of
manufacture, but also in the state of injury. See Rowland v. Novartis Pharms. Corp., 983 F.Supp.2d 615
(W.D. Pa. 2013); Duchesneau v.Cornell Univ., 2012 WL 3104428 (E.D.Pa. July 31, 2012); Dodson v.Ford
Motor Co., C.A. No. PC 96-1331, 2006 WL 2642199 (R.I. Super. Sept. 5, 2006).
457. 559 F.Supp.333 (D.D.C.1983).
458. See, e.g., In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 644 F.2d 594 (7th Cir.
1981), cert. denied, 454 U.S. 878 (1981) (with regard to the planes manufacturer); In re Aircrash Disaster
Near Monroe, Michigan on January 9, 1997, 20 F.Supp.2d 1110 (E.D. Mich. 1998)(holding that actions
arising out of a Michigan crash of airplane operated by an airline headquartered in Kentucky, which
allowed punitive damages, were governed by Michigan law, which did not allow such damages); In re San
Juan Dupont Plaza Hotel Fire Litig., 745 F.Supp.79 (D.P.R. 1990)(applying Puerto Rico law, which did
not allow punitive damages, to actions arising out of a Puerto Rico hotel fire, and filed against non-Puerto
Rico defendants domiciled in states that allowed punitive damages); Lombard v. Econ. Dev. Admin. of
Puerto Rico, 1995 WL 447651 (S.D.N.Y. July 27, 1995)(applying Puerto Rico law and denying punitive
damages for Puerto Rico conduct and injury).
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259
Among the latter cases is Fanselow v. Rice,459 a traffic-accident case, in which the state of
injury had only a fortuitous connection with the defendants. Fanselow arose out of a two-
car, Nebraska collision that injured two Colorado domiciliaries, riding in one of the cars. The
defendants were the driver of the other car, a Texas domiciliary, who moved to Oregon after the
accident, and his employer, a Minnesota-based corporation. Of the four involved states, only
Nebraska disallowed punitive damages. The court did not discuss the place of conduct, but one
can assume that although the drivers conduct occurred in Nebraska, his employers conduct
(or omission) occurred in Minnesota. Focusing only on the domicile of the defendants, the
court held that Minnesota law governed the plaintiffs punitive damages claims against the
employer, and Oregon law governed their claims against the driver.
The court correctly noted that the purpose of a rule imposing punitive damages is to punish defendants, and to deter them and others from future wrongdoing, whereas the purpose of
a rule prohibiting punitive damages is to protect defendants from excessive financial liability,
and to encourage entrepreneurial activity through lowering the cost of doing business in the
state. The court reasoned that the plaintiffs home-state did not have an interest in imposing punitive damages subjecting the defendants to punitive damages, as long as the plaintiffs
were adequately compensated. Thus, the only states concerned with punitive damages are those
states with whom the defendants have contacts significant for choice of law purposes.460 In
Fanselow, those states were Nebraska, Minnesota, and Oregon. The court found that Nebraskas
policy of protecting defendants from punitive damages was not implicated in this case, because
the defendants only connection with that state was the occurrence of the accident there. In
contrast, the court reasoned, the case implicated the policies of both Minnesota and Oregon
in punishing and deterring defendants, because the defendants were domiciled in those two
states.461
8. Pattern 18:Only theState ofConduct

Imposes Punitive Damages
In Pattern 18, the state of conduct imposes punitive damages (and thus has an interest in deterring the particular conduct), while the defendants domicile and the place of injury are in a
state (or states) that does not impose punitive damages (and thus have an interest in protecting
459. 213 F.Supp.2d 1077 (D. Neb. 2002). Another case that also applied the punitive damages law of the
defendants principal place of business is Bryant v.Silverman, 703P.2d 1190 (Ariz. 1985), a case arising
out of an airplane crash in Colorado, which prohibited punitive damages. But, in this case, the court was
influenced by the fact that the record did not reveal the place of the critical conduct (as between Arizona
and Colorado), and that the victim was also an Arizona domiciliary. The court concluded that [s]ince
this case involves an Arizona corporate defendant causing injury to an Arizona domiciliary, Arizona has
the dominant interest in controlling [defendants] conduct. Id. at1196.
460. Fanselow, 213 F.Supp.2d at 1084 (internal quotation marks omitted). The court rejected the argument that those states were interested in imposing punitive damages only in favor of domestic plaintiffs.
It also rejected the argument that Nebraska had a stronger interest in denying punitive damages, because
its prohibition of punitive damages was contained in its Constitution.
461. The court acknowledged that, insofar as the driver was not an Oregon domiciliary at the time of
the accident, Oregon had less of an interest in punishing him. But the court concluded that, because the
driver was a current Oregon domiciliary, Oregon had an interest in deterring his future misconduct.
260
the defendant). This difference produces a true conflict between the laws of the state of conduct and the state of the defendants domicile, with the state of injury playing a secondary role.
Cases involving this pattern have applied the law of any one of these three states.
For example, in Long v. Sears Roebuck & Co.,462 a products liability case, the court imposed
punitive damages under the law of the place of wrongful conduct, which the court assumed to
be the sale of a defective mower and a misrepresentation of its safety features. Both of these acts
occurred in the District of Columbia,463 which imposed punitive damages, whereas the injury
occurred in Maryland, which did not allow such damages. The court applied DC law, after concluding that:(1)Maryland did not have an interest in applying its law, because that law was not
intended to protect foreign defendants; and (2)the District of Columbia had an interest in deterring
and punishing, through its punitive damages law, those defendants who engaged in reprehensible
conduct in the District, by selling unsafe products there and misrepresenting their safety features.464
In contrast, in Harlan Feeders, Inc. v.Grand Laboratories, Inc.,465 another product liability
case, the court applied the law of the state of injury, which prohibited punitive damages, rather
than the law of the state of conduct (manufacture), which allowed them. The product was
manufactured in Iowa and sold to the Nebraska plaintiff in Nebraska. Noting that Nebraska
has made a policy choice that punitive damages are inappropriate,466 the court equated that
choice to a state interest, and it concluded that this interest was
not outweighed by Iowas contrary interest in imposing punitive damages as a deterrent, at least
not where the plaintiff is a resident of Nebraska, not Iowa, where the alleged injury occurred
in Nebraska, not Iowa, as the result of use of a product produced by a South Dakota, not an Iowa,
corporation, even when the corporation physically produced the product in Iowa.467
In In re Air Crash Disaster at Sioux City, Iowa, on July 19, 1989,468 a multiparty case, involving wrongful death and survival actions, arising from the crash of a passenger plane in Iowa,
the pertinent contacts were scattered in several states. Correctly discounting the victims domiciles, the court held that the punitive-damage claims against the manufacturers of the plane
and the engines should be governed by the laws of the states where they were manufactured
California and Ohio, respectively.469
462. 877 F.Supp.8 (D.D.C.1995).

463. The mower was manufactured in South Carolina, but neither party invoked that stateslaw.
464. For a similar case, see Brown v.Johnson & Johnson, 64 F.Supp.3d 717 (E.D. Pa. 2014)(awarding
punitive damages, under Pennsylvania law, to a Florida plaintiff for a Florida injury caused by a product
manufactured in Pennsylvania, by a New Jersey-based defendant; Florida, but not New Jersey allowed
punitive damages).
465. 881 F.Supp.1400 (N.D. Iowa1995).
466. Id. at1410.
467. Id.
468. 734 F.Supp.1425 (N.D. Ill.1990).
469. Both states allowed punitive damages in survival actions, but not in wrongful death actions. With
regard to the third defendant, the airline, the court applied Illinois law, which did not allow punitive
damages. Illinois was the airlines principal place of business and the place where the corporate decisions,
regarding the maintenance of the aircraft and the training of its flight crew, weremade.
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261
In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979,470 a similar case arising out
of a passenger plane crash in Illinois, involved actions against both the planes manufacturer
and the airline company. The manufacturers home-state, Missouri, allowed punitive damages,
but the state of manufacture, California, did not. The airlines home-state, NewYork, did not
allow punitive damages, but the state in which it maintained the aircraft, Oklahoma, allowed
such damages. Examining each conflict separately for each defendant, the court found a true
conflict between the states that allowed punitive damages and the states that prohibited them.
The court broke the tie by applying the law of a third state, Illinois, which was the place of
injury and which did not allow punitive damages. The court found that Illinois had strong
interests in having airlines fly into and out of the state, and in protecting [them] by disallowing punitive damages.471
9. Pattern 19:Only theState ofInjury

Imposes Punitive Damages
In Pattern 19, the state of the injury imposes punitive damages, but the state (or states) of the
defendants conduct and domicile prohibits such damages. Again, there is little doubt that this
pattern presents the true conflict paradigm. The first state has an interest in punishing and
deterring conduct (and actors) that cause injury within its territory, whereas the latter state has
an interest in protecting its domiciliary-actor from paying the heavy financial price of punitive
damages. As discussed in the next chapter, some products liability cases have asserted that, in
punitive-damage conflicts, the place of injury is not relevant,472 or, worse, fortuitous.473 Both
assertions are erroneous. First, there is nothing fortuitous about the occurrence of product-
induced injuries in a state in which a manufacturer knowingly sells its products, oftentimes
through aggressive advertising. Second, although it is true that the victims domicile is relevant
only in compensatory-damage conflicts, not in punitive-damage conflicts, it is not true that the
place of injury is irrelevant in the latter conflicts. The state of injury has interests separate and
apart from protecting the individual victiminterests in punishing conduct that causes injuries in its territory and in preventing similar injuries in the future. Those interests are real and
strong, and they clash with the contrary interests of the state of conduct.
Thus, there is no denying that cases of this pattern are true conflicts, which in turn means
that the application of the law of either state is defensible. Although the above cases applied
471. Near Chicago, 644 F.2d at 61516. Similarly, in Freeman v.World Airways, Inc., 596 F.Supp.841 (D.
Mass. 1984), a case arising out of an airplane crash in Massachusetts, the court found that Massachusetts,
which did not allow punitive damages, ha[d]a significant interest in regulating conduct (deterrence or
encouragement) of planes arriving at [its airports] during the winter. Id. at 847. The negligent conduct
that caused the crash arguably occurred in other states, which imposed punitive damages.
472. Kelly v.Ford Motor Co., 933 F.Supp.465, 469 (E.D. Pa. 1996)([W]hen punitive damages are the
subject of a conflict of laws, the domicile or residence of the plaintiff and the place where the injury
occurred are not relevant contacts.).
473. Zimmerman v. Novartis Pharms. Corp., 889 F. Supp. 2d 757, 76263 (D. Md. 2012) (stating that
the place of injury is simply fortuitous with respect to the punitive damages issue.) (internal quotation
marks omitted).
262
the law of the defendants home-state and place of conduct, denying punitive damages,474 other
cases (discussed below) have applied the law of the state of injury, allowing punitive damages.475 On balance, the application of the law of the state of injury (and the award of punitive
damages under that law) is a perfectly sensible resolution to these conflicts, provided it meets
two conditions.
The first condition is constitutionally mandated and is specific to punitive damages. It was
enunciated by the United States Supreme Court in BMW of North America, Inc. v. Gore,476
which held that, in assessing the amount of punitive damages, the court should consider only
the conduct that caused detrimental effects in the state of injury, not the conduct that caused
such effects in other states.
The second condition is the general proviso for objective foreseeability that should be kept
in mind in all cross-border tortsnamely, the requirement of avoiding unfair surprise to the
party adversely affected by the application of the law of the state of injury, here, the defendant.
Acourt should not apply the law of that state if the defendant demonstrates that one could not
reasonably have foreseen the occurrence of the injury in that state. This is a fact-intensive, case-
by-case inquiry. In the most common, cross-border tortsproducts liabilitythis condition
is satisfied, unless the manufacturer demonstrates that its products were not available in the
state of injury through ordinary commercial channels.477 Judging by how rarely manufacturers
choose to raise this argument,478 one can conclude that this condition is easily met. Indeed, in
474. See Kelly v.Ford Motor Co., 933 F.Supp.465 (E.D. Pa. 1996); Campbell v.Fawber, 975 F.Supp.2d
485 (M.D. Pa. 2013); Krause v. Novartis Pharms. Corp., 926 F. Supp. 2d 1306 (N.D. Fla. 2013); Chiles
v.Novartis Pharms. Corp., 923 F.Supp.2d 1330 (M.D. Fla. 2013); Kirchman v.Novartis Pharms. Corp.,
No. 8:06cv1787T24TBM, 2014 WL 2722483 (M.D. Fla. June 16, 2014); Guenther v. Novartis
Pharms. Corp., No. 6:08cv456, 2013 WL 1225391 (M.D. Fla. Mar. 27, 2013); Deutsch v. Novartis
Pharms. Corp., 723 F.Supp.2d 521 (E.D.N.Y. 2010); Brown v.Novartis Pharms. Corp., 2012 WL 3066588
(E.D.N.C. July 27, 2012); Mathews v. Novartis Pharms. Corp., 953 F. Supp. 2d 811 (S.D. Ohio 2013);
Talley v. Novartis Pharms. Corp., 2011 WL 2559974 (D.N.C. June 28, 2011) (decided under Tennessee
conflicts law); Zimmerman v.Novartis Pharms. Corp., 889 F.Supp.2d 757 (D. Md. 2012)(decided under
Tennessee conflicts law); Williams v.Novartis Pharms. Corp., 15 F.Supp.3d 761 (S.D. Ohio2014).
475. In addition to the cases discussed below, see the following products liability cases discussed in the next
chapter:Sanchez v.Boston Sci. Corp., 38 F.Supp.3d 727 (S.D.W. Va. 2014); Duchesneau v.Cornell Univ.,
2012 WL 3104428 (E.D. Pa. July 31, 2012); Rowland v.Novartis Pharms. Corp., 983 F.Supp.2d 615 (W.D.
Pa. 2013); Dodson v.Ford Motor Co., C.A. No. PC 96-1331, 2006 WL 2642199 (R.I. Super. Sept. 5, 2006);
Gilliland v.Novartis Pharms. Corp., 33 F.Supp.3d 1060 (S.D. Iowa 2014); In re NuvaRing Prods. Liability
Litig., 957 F.Supp.2d 1110 (E.D. Mo. 2013); Barba v.Carlson, 2014 WL 1678246 (Del. Super. Apr. 8,2014).
476. 517 U.S. 559 (1996) (holding that, although in assessing the degree of reprehensibility of the defendants conduct Alabama may consider evidence of the defendants non-Alabama conduct, nevertheless,
in fixing the amount of punitive damages, Alabama may not punish the defendant for non-Alabama
conduct that produced injuries outside of Alabama).
477. For non-products cases awarding punitive damages under the law of the place of injury (and victims
domicile), see, e.g., Cooper v.Am. Exp. Co., 593 F.2d 612 (5th Cir. 1979)(awarding punitive damages,
under the law of the state of injury, even though the law of the defendants domicile and place of conduct prohibited such damages); Ashland Oil, Inc. v.Miller Oil Purchasing Co., 678 F.2d 1293 (5th Cir.
1982)(awarding punitive damages, under the law of the place of injury, even though such damages were
prohibited by the state of the defendants domicile and place of conduct). In both cases, the foreseeability
condition was satisfied.
478. See S. Symeonides, Choice-of-Law Revolution357.
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263
all the product liability cases that allowed punitive damages, under the law of the state of injury,
this condition was met.479
For example, in Kramer v.Showa Denko K.K.,480 the court awarded punitive damages, under
the law of the state of injury (NewYork), against a Japanese defendant, who manufactured a car
in Japan, a country that does not allow punitive damages. But the car reached the NewYork
market through ordinary commercial channels, and the victim bought and used it in that state.
Thus, the imposition of the financial burden of punitive damages, under NewYork law, was a
foreseeable and insurable risk that the manufacturer should have expected to bear in exchange
for deriving financial benefits from the NewYork market.
The same was true in Apple v. Ford Motor Co.,481 which also awarded punitive damages
under the law of the state of injury, Pennsylvania. The product in question was again a car,
which was designed and manufactured in Michigan (a state that did not allow punitive damages) by defendant Ford, a company headquartered in Michigan. What was unusual was that,
coincidentally, the victim was also a Michigan domiciliary, who drove the car to Pennsylvania
for a short visit. The Pennsylvania court concluded that neither the victims status as a nonresident, nor the fact that he shared a Michigan affiliation with the defendant, detracted from
Pennsylvanias interest in applying its punitive-damage rule. The court reasoned that the purpose and policy of that rule was to protect Pennsylvania residents and visitors to the state by
deterring manufacturers from manufacturing products which may enter Pennsylvania that are
defective and dangerous[,] and that this policy was equally furthered by awarding punitive
damages to [a] plaintiff who is a Pennsylvania resident and to the plaintiff who is a resident of
another state.482
A few years earlier, in Kelly v. Ford Motor Co.,483 a federal court in Pennsylvania reached
the opposite result in a similar case, by refusing to apply the punitive-damage law of the state
of injury, Pennsylvania, which was also the victims domicile and the place where he acquired
the product. Instead, the court applied the law of Michigan, the manufacturers home state
and the place of manufacture, which prohibited punitive damages. The court acknowledged
Pennsylvanias interests in punishing defendants who injure its residents and in deterring them and others from engaging in similar conduct which poses a risk to Pennsylvanias
citizens.484 But the court also found that Michigan had a strong interest in denying such
damages, so as to ensure that its domiciliary defendants are protected from excessive financial
liability.485 By insulating companies, such as Ford, who conduct extensive business within its
borders, said the court, Michigan hopes to promote corporate migration into its economy
[which] will enhance the economic climate and well being of the state of Michigan by generating revenues.486
479. See id. at 25456.
480. 929 F.Supp.733 (S.D.N.Y.1996).
481. 2004 WL 3218425 (Pa. Com. Pl. Nov. 18,2004).
482. Id.at*1.
483. 933 F.Supp.465 (E.D. Pa.1996).
484. Id. at471.
485. Id.
486. Id. For other cases reaching the same result, see Calhoun v.Yamaha Motor Corp., U.S.A., 216 F.3d
338 (3d Cir. 2000), cert. denied, 531 U.S. 1037 (2000) (action by Pennsylvania plaintiffs for injury they
264
The Apple court, without mentioning Kelly, turned the migration argument around, by
saying that Pennsylvanias public policy would be thwarted by applying the public policy of
another state that seeks to encourage manufacturers to leave Pennsylvania[.]487 In Kukoly
v. World Factory, Inc.,488 another Pennsylvania case that awarded punitive damages under
Pennsylvania law, the court distinguished Kelly and rejected the defendants argument for
applying Texas law, which favored the defendant.489 The court characterized this as a true conflict, in which Pennsylvania had an interest in protect[ing] its citizens from defective products and encourag[ing] manufacturers to produce safe products[,] while Texas wanted to
promote the interests of [its] industry.490 Noting that each states interests would be impaired
by the application of each others law,491 the court decided to apply Pennsylvania law, because
Pennsylvania was the place of injury, the plaintiff s domicile, the place of the products acquisition, and the defendant
place[d] products into the stream of commerce where it is reasonably foreseeable its products
will end up in Pennsylvania. Plaintiffs did not travel to [the defendants] home state of Texas to
purchase the allegedly defective wagon. Instead, the Plaintiffs traveled to a local Wal-Mart store
in their domicile, the Commonwealth of Pennsylvania.492
In Scott v. Ford Motor Co.,493 another products liability action, a California court applied
the law of the state of injury, California, which allowed punitive damages, rather than the
law of the state of the products manufacture, Michigan, which prohibited them. The plaintiff
was a California automobile service station owner, who contracted mesothelioma after being
sustained in Puerto Rico, while using a rented, Japanese-made watercraft; holding that the plaintiffs claims
for punitive damages were governed by Puerto Rico law (which did not allow such damages), because
Puerto Ricos interest in regulating the activity that occurs in its territorial waters is more dominant.
216 F.3d at 348); Beals v.Sicpa Securink Corp., 1994 WL 236018 (D.D.C. May 17, 1994)(refusing to apply
the punitive damages law of the District of Columbia to an action arising from injury there, filed against
a Virginia defendant, who manufactured the product in Virginia, which limited punitive damages); Selle
v.Pierce, 494 N.W.2d 634 (S.D. 1993)(refusing to apply punitive damages law of place of injury; applying
instead non-punitive damages law of state of conduct and defendants domicile).
487. Apple, 2004 WL 3218425 at*12.
488. 2007 WL 1816476 (E.D. Pa. June 22,2007).
489. The product in question was a utility cart that was manufactured in China for a Texas defendant
and then sold to a Pennsylvania plaintiff through a local Wal-Mart store. Texas had a higher standard of
proof (clear and convincing evidence) for punitive damages and limited their amount. Pennsylvania had
a lower standard of proof (sufficient evidence) and did not limit the amount. The court distinguished
this case from Kelly, reasoning that although in Kelly Michigan was not only the defendants principal
place of business, but also the place of the cars design and manufacture, in Kukoly the facts regarding
the place of conduct contact are in dispute. Texas may have very little, if any, contacts with this alleged
incident other than being the state where [the defendant] has its principal place of business. Kukoly, 2007
WL 1816476 at *3n.1.
490. Id.at*3.
491. Id.
492. Id.
493. 169 Cal. Rptr. 3d 823 (Cal. App.2014), as modified on denial of rehg (Apr. 23, 2014), review denied
(July 9,2014).
Torts
265
exposed to asbestos contained in brake linings that Ford Motor manufactured in Michigan.
Surprisingly, the court did not even agree that this was a true conflict, but instead it concluded
this was a false conflict, in which only California had an interest in applying itslaw.
The court rejected Fords argument that the unavailability of punitive damages in Michigan
was intended to protect Michigan defendants from excessive liability. It pointed out that
Michigan courts have never articulated such an interest, and they have applied their law to all
defendants in Michigan courts, regardless of domicile.494 Even if Michigan had expressed an
intent to protect its resident businesses from punitive damages, the court explained, Michigan
would have no legitimate interest in imposing that intent in California.495 Acompany, such
as Ford, that conducts business in numerous states ordinarily is required to make itself aware
of and comply with the law of a state in which it chooses to do business[,] and it cannot
carry with it the regulatory regime of its home-state.496 Consequently, the court concluded,
Michigan had no interest in shielding its resident corporations from punitive damages when
those corporations chose to do business in states permitting the imposition of such damages.497
The court also rejected Fords argument that Michigan had an interest in regulating
the legal consequences of conduct occurring within its borders, such as the design and
manufacture of the product or the failure to warn in this case. The court pointed out that
Michigan never articulated this as a motive for banning punitive damages, and Michigan
courts d[id] not preclude punitive damages based on conduct occurring only within the
state.498 In any event, the court reasoned, if the states that allow punitive damages were to
import Michigans policy because the conduct underlying its failure to warn occurred in
Michigan [by] a corporation domiciled in that state[,] Ford would effectively carry a
nationwide shield from punitive damage liability because the state in which it maintains its
headquarters has decided punitive damages are poor public policy.499 Although Michigan
ha[d] the prerogative to establish a uniform rule applicable to all enterprises that elect to do
business there, Michigan ha[d] no legitimate interest in imposing that policy decision on
the courts of a sister state.500
After examining Michigan cases denying punitive damages, the court concluded that the
reason for the denial was the expression of a particular view of the appropriate role of the
courts in adjudicating civil disputes: to compensate, rather than to punish[,] a declaration of public policy about the wisdom of granting punitive damages as a legal remedy for
494. See id. at 834 ([This] is [not] an interest that has ever been articulated by Michigan courts. The
Michigan ban on punitive damages applies equally to all defendants, regardless of their state of domicile.
As a result, Michigan-domiciled defendants are provided no more protection from punitive damages in
Michigan courts than persons and corporations resident elsewhere.).
495. Id. at835.
496. Id. (internal quotation marks omitted).
497. Id. 83536.
499. Id. at834.
500. Id. In In re Air Crash Disaster at Washington D.C., 559 F.Supp.333 (D.D.C 1983), the court rejected
a similar argument for applying the law of the manufacturers home-state, Washington, which prohibited
punitive damages, by pointing out that, although Washington had chosen to protect manufacturers at the
expense of victims, the sovereignty of other states prevents [Washington] from placing on the scales the
rights of those injured elsewhere. Id. at359.
266
noncriminal conduct.501 That being so, the court concluded, Michigan had a strong interest in
seeing its view of the appropriate policy carried out in its own courts, but it had a minimal
interest in seeing the same policy implemented in the courts of California.502
In Winter v.Novartis Pharmaceuticals Corp.,503 the manufacturer also argued for the application of the law of its home-state, New Jersey, which prohibited punitive damages, while the
plaintiff argued for the application of the law of her home-state, Missouri, which allowed punitive damages. New Jersey was the state in which the defendant manufactured and labeled the
injury-causing drug, and Missouri was the state in which the plaintiff used it and suffered the
injury. The defendant argued that New Jersey had the most significant relationship to the
punitive damages claim because that state [was] the site of any labeling and marketing misconduct.504 Applying Missouri conflicts law, the Eighth Circuit rejected the argument. The court
reasoned that, although New Jersey may have an interest in its corporations being governed by
its punitive damages provisions, Missouri had a strong interest in applying its punitive damages laws to deter conduct by corporations doing business in Missouri that harms Missouri
residents.505
10. Pattern 20:None ofthe Above

(Victims Domicile or Domicile)
In this group of cases, the three pertinent contacts are in a state (or states) that does not impose
punitive damages for the conduct in question. In these cases, there is little justification for
awarding punitive damages, even if, for example, the victims home-state imposes such damages, and even if that state is also the forum state. Most cases in this group have followed this
logic.506
501. Scott, 169 Cal. Rptr. 3d at834.

502. Id. Two other products liability cases involved claims for punitive damages against Ford. One
of them rejected Fords arguments and allowed punitive damages, under the law of the accident state,
whereas the other case accepted Fords arguments and applied Michigan law, denying punitive damages.
See Linert v.Foutz, 20 N.E.3d 1047 (Ohio App.7 Dist. 2014)(applying Ohio law, which allowed punitive
damages, in a case involving a Ford car that was manufactured in Michigan, sold in Ohio, and caused
injuries there to an Ohio police officer); Caballero v.Ford Motor Co., 2014 WL 2900959 (Del. Super. June
24, 2014)(applying Michigan law and denying punitive damages, in a case involving a Ford car that was
designed in Michigan, manufactured and sold in Missouri, and which rolled over in Mexico, killing five
Mexican nationals domiciled in other states).
503. 739 F.3d 405 (8th Cir.2014).
504. Id. at410.
505. Id. See also id. (New Jerseys interest, balanced against Missouris, does not overcome Missouris
presumption that the law of the place of injury should apply.) For a similar case involving an implantable
medical device and allowing punitive damages, see Barba v.Carlson, 2014 WL 1678246 (Del. Super. Apr.
8,2014).
506. For cases following this line of reasoning, see Tubos de Acero de Mexico, S.A.v.Am. Intl Inv. Corp.,
Inc., 292 F.3d 471 (5th Cir. 2002); Gadzinski v.Chrysler Corp., 2001 WL 629336 (N.D. Ill. May 29, 2001);
Calhoun v.Yamaha Motor Corp., U.S.A., 216 F.3d 338 (3d Cir. 2000); Hernandez v.Aeronaves de Mexico,
S.A., 583 F.Supp.331 (N.D. Cal. 1984); Dean ex rel. Estate of Dean v.Raytheon Corp., 399 F.Supp.2d 27
(D. Mass. 2005); In re September 11th Litig., 494 F.Supp.2d 232 (S.D.N.Y. 2007); Gonzalez v.Univ. Sys. of
Torts
267
One example is Aguirre Cruz v.Ford Motor Co.,507 a products liability case, in which only
the victims home-state, Tennessee, provided for punitive damages. Both the state of injury
(Mexico) and the defendants home-state and place of manufacture (Michigan) prohibited
punitive damages. The Tennessee court reiterated two basic premises:(1)the purpose of a rule
imposing punitive damages is not to compensate plaintiffs, but rather to punish the wrongdoer,
as well as to deter the wrongdoer and others from committing similar wrongs in the future;
and (2)the purpose of a rule that prohibits punitive damages is to shield defendants and their
activities from potentially excessive financial exposure. From these two premises, the court
concluded that: (1) Tennessee did not have an interest in applying its punitive-damage rule,
because its domiciliaries would be adequately compensated through compensatory damages;
and (2) Michigan had a strong interest in shielding a defendant such as Ford from punitive
damages, because Ford had its principal place of business in Michigan and made all its critical
manufacturing and marketing decisions in thatstate.
Nevertheless, one finds a few cases reaching the opposite result. For example, in Phillips
v. General Motors Corp.,508 the Montana Supreme Court awarded punitive damages to a
Montana plaintiff under Montana law, even though Montana did not have any other pertinent
contacts, and the other involved states did not allow or limited such damages. Phillips was a
products liability action filed against a Michigan manufacturer for injuries caused by one of
its trucks, which was manufactured in Michigan. The court reasoned that, because punitive
damages serve to punish and deter conduct deemed wrongfulin this case, placing a defective product into the stream of commerce which subsequently injured a Montana resident[,]
Montana had a strong interest in deterring future sales of defective products in Montana
and encouraging manufacturers to warn Montana residents about defects in their products as
quickly and as thoroughly as possible.509 However, the sale of the product did not take place in
Montana, but in North Carolina, which did not impose punitive damages.510 Also, the victim
was not killed in Montana, but in Kansas (which limited punitive damages), while driving the
car from Montana to North Carolina. Montanas interests in protecting its domiciliaries from
harm were fully satisfied by applying Montanas compensatory damages law, which the court
did . Under the facts of this case, any additional interest Montana might have had in deterring conduct that injured Montana domiciliaries is far weaker than the contrary interests of
Michigan in shielding Michigan manufacturers, who manufacture products in Michigan, from
punitive damages.
Similar to Phillips, but more defensible, are certain cases decided under federal antiterrorist statutes, such as the Antiterrorist and Effective Death Penalty Act of 1996.511 This Act
New Hampshire, 2005 WL 530806 (Conn. Super. Jan. 28, 2005); Guidi v.Inter-Contl Hotels Corp., 2003
WL 1907901 (S.D.N.Y. Apr. 16,2003).
507. 435 F.Supp.2d 701 (W.D. Tenn.2006).
508. 995P.2d 1002 (Mont. 2000). Id. For another case awarding punitive damages under the law of the
plaintiff s domicile, see Thiele v.N. Mut. Ins. Co., 36 F.Supp.2d 852 (E.D. Wis.1999).
509. Phillips, 995P.2d at1012.
510. The purchaser was a North Carolina domiciliary, who sold the truck to another North Carolina
domiciliary, the victim, who later moved his domicile to Montana.
511. 28 U.S.C. 1605(a)(7) (2015). This Act lifted the sovereign immunity of foreign states designated
(by the U.S. State Department) as sponsors of terrorism, and provided a cause of action for U.S.citizens
killed or injured by acts of terrorism that are sponsored or aided by these states.
268
imposes punitive damages against certain defendants for death or personal injury of United
States citizens, who are victims of attacks sponsored or aided by states designated as sponsors
of terrorism.512 These cases are more defensible than Phillips, not only because they are dictated
by statute, but also because they involve deliberate conduct that targets victims because of their
U.S.citizenship.
11. Summary and Rule

The preceding review provides a wide-ranging sample of tort cases involving punitive damages
conflicts. These cases have been decided under a variety of modern choice-of-law methodologies, including the Restatement (Second), interest analysis, and Leflars choice-influencing considerations. But, as in many other tort conflicts, the use of one or another methodology does
not appear to have had a perceptible bearing on the outcome of the cases. Consequently, it is
unnecessary to dwell much on methodology, and it is more fruitful to focus on the outcomes
ofcases.
As the above discussion indicates, American courts have awarded punitive damages in
cases involving each of the first seven patterns defined abovenamely, cases in which the state
that imposes punitive damages has all three, any two, or any one of the three pertinent contacts. If one were to compress these results into a descriptive choice-of-law rule, the rule would
provide as follows:
Rule VII. Subject to some exceptions, American courts award punitive damages if such damages
are imposed by one or more of the following states:(1)the state of the defendants domicile or
principal place of business; (2) the state of the defendants conduct; or (3)the state of the injury.513
This rule does not include cases falling within Pattern 20 (the domicile cases), because the
cases that awarded punitive damages in such cases are both uncommon and extreme. But it
does include the cases falling within the single-contact patterns (1719), because these cases
are more common and more defensible.
512.For cases awarding punitive damages under this Act, see Beer v. Islamic Republic of Iran, 789
F. Supp. 2d 14 (D.D.C. 2011); Rimkus v. Islamic Republic of Iran, 750 F. Supp. 2d 163 (D.D.C. 2010);
Estate of Heiser v.Islamic Republic of Iran, 659 F.Supp.2d 20 (D.D.C. 2009); Valore v.Islamic Republic
of Iran, 700 F.Supp.2d 52 (D.D.C. 2010); Blais v.Islamic Republic of Iran, 567 F.Supp.2d 143 (D.D.C.
2008); Haim v.Islamic Republic of Iran, 425 F.Supp.2d 56 (D.D.C. 2006); Prevatt v.Islamic Republic of
Iran, 421 F.Supp.2d 152 (D.D.C. 2006); Bodoff v.Islamic Republic of Iran, 424 F.Supp.2d 74 (D.D.C.
2006); Reed v.Islamic Republic of Iran, 439 F.Supp.2d 53 (D.D.C. 2006); Greenbaum v.Islamic Republic
of Iran, 451 F.Supp.2d 90 (D.D.C. 2006); Mousa v.Islamic Republic of Iran, 238 F.Supp.2d 1 (D.D.C.
2001); Weinstein v.Islamic Republic of Iran, 184 F.Supp.2d 13 (D.D.C. 2002); Hill v.Republic of Iraq,
328 F.3d 680 D.C. Cir. 2001); Wagner v.Islamic Republic of Iran, 172 F.Supp.2d 128 (D.D.C. 2001); Jenco
v.Islamic Republic of Iran, 154 F.Supp.2d 27 (D.D.C. 2001); Sutherland v.Islamic Republic of Iran, 151
F.Supp.2d 27 (D.D.C. 2001); Elahi v.Islamic Republic of Iran, 124 F.Supp.2d 97, 114 (D.D.C. 2000). See
also Flatow v.Islamic Republic of Iran, 999 F.Supp.1 (D.D.C.1998).
513. If punitive damages are available only in the state of injury, the application of that states punitive-
damage law is subject to the proviso that the occurrence of the injury in that state must have been objectively foreseeable.
Torts
269
However, although being defensible is an acceptable attribute of de facto practice, it is not

a sufficient attribute of a prescriptive rulenamely, a rule that seeks to guide future practices.
One who attempts to draft a prescriptive rule should aspire to a higher standarda rule that
has a solid foundation in judicial practice and takes a more even-handed position toward these
sharp conflicts, while keeping in mind the severity of punitive damages when compared to
other conduct-regulating rules. For this reason, a less liberal rule might be more appropriate
for punitive damages than for other conduct-regulating issues. The view of this author is that
such a rule should be grounded on the cases of the first four patterns (1316), which are both
more numerous and better reasoned.
The Louisiana codification of 1991 has adopted such a rule,514 as has the ALIs Complex
Litigation Project of 1994.515 Although phrased differently, both of these rules are based upon
the three contacts discussed above:the place of conduct, the place of the defendants domicile,
and the place of injury. These rules provide that punitive damages may be awarded if all three,
or any two, of the above contacts are located in a state (or states) allowing such damages. These
rules steer a middle course between outright hostility and undue liberality toward punitive
damages. For this reason, they can be challenged from both the left and the right. The criticism
from the left (mostly the American criticism) would be that the two-contact requirement is too
restrictive. The criticism from the right (including perhaps from Europe) would be that these
rules are not restrictive enough, because, after all, they do not eradicate the monstrous heresy516 of punitive damages. But the role of conflicts law is not to eradicate heresies, but rather
to define their proper spatial boundaries.517
V. C O NCL US I ONS
The choice-
of-
law revolution introduced significant, methodological, and philosophical
changes to the traditional way of thinking about conflicts of laws. These changes are discussed in Chapters 57. In the area of tort conflicts, these changes were antithetical to the
single-mindedness of the traditional rule of lex loci delicti. However, after discussing how
the courts that joined the revolution have handled tort conflicts, it is worth asking whether
these significant changes in methodology have also produced comparable changes in substantive outcomes. Table 21, following page, helps answer this question. It depicts the results
that American courts that joined the revolution have reached in tort conflicts (other than
products liability).518
514. See La. Civ. Code Art. 3546 (2015) . For discussion of the rationale of this article by its drafter, see
Symeonides, Louisiana Exegesis 73549.
515. See American Law Institute, Complex Litigation: Statutory Recommendations and Analysis, 6.06
(1994).
516. Fay v.Parker, 53 N.H. 342, 382 (1872).
517. For a discussion of these criticisms, see S. Symeonides, Choice-of-Law Revolution 26163.
518. In this table, the letters Aand B represent states. The use of capital letters represents a state with a
pro-plaintiff law, and the use of lower-case letters represents a state with a pro-defendant law. The dash
(---) means that the content of that states law is immaterial. The shaded cells represent the state of the
applicablelaw.
270
Table21. Applicable Law inTort Conflicts

# Defendants domicile Conduct Injury Plaintiff s domicile
Common-domicile intrastate torts
Split-domicile intrastate torts
Cross-border torts
1
2
3
4
5
6
7
8
A
a
a
a
A
A
---
---
b
B
a
B
b
A
a
A
b
B
a
B
b
A
B
b
A
a
B
B
b
b
---
---
As Table21 indicates, the courts that joined the revolution continue to apply the law of the
locus delicti in several patterns (and a significant number) of tort conflicts, despite using different rationales from each other and from the traditional theory. Specifically:
(1) The courts continue to apply the law of the state in which both the conduct and the
injury occurred, if that state is also the domicile of either the tortfeasor (cases 3 and
6 in Table21) or the victim (cases 45) (the intrastate split-domicile cases described
above), regardlessof:
(a) Whether that law favors the tortfeasor (cases 3 and 5)or the victim (cases 4 and
6);and
(b) Whether the conflict involves conduct-regulation or loss-distribution issues.
Thus, these cases are compatible with the old lex loci delicti rule, even if they base the choice of
law on additional contacts and factors.
(2) In cross-border torts, in which the parties are not domiciled in the same state, or states
with identical laws (cases 78), courts apply the law of either the state of conduct or
the state of injury, whichever favors the plaintiff:
(a) When courts apply the law of the state of injury (case 7), they reach the same
result as that dictated by the American version of the lex loci delicti rule (more
precisely lex loci damni), even when invoking a different rationale;and
(b) When courts apply the law of the state of conduct (case 8), they deviate from
the American version of the lex loci rule, which mandated the application of
the law of the state of injury. But, because the place of conduct is a territorial
contact, rather than a personal one, these cases are consistent with the principle
of territoriality, which is the foundation of the lex loci rule. Thus, if these cases
represent a change, it is an intra-territorial one and less than dramatic, especially from the perspective of foreign systems, which did not subscribe to the
first Restatements notion of always applying the law of the place of injury in
cross-border torts;and
(3) The only major departure from both the philosophy and the results of the traditional
system has occurred in one pattern of tort conflictsnamely, common-domicile cases
Torts
271
(cases 12 in Table 21, previous page). In these conflicts, the distinction between
conduct-regulation and loss-distribution makes a difference:
(a) In loss-distribution conflicts, all the American courts that joined the revolution
have almost unanimously applied the law of the common-domicile, thus switching
from territoriality to personality;and
(b) In contrast, in conduct-regulation conflicts, American courts continue to apply
the law of the state of conduct and injury (see the cells with the diagonal lines in
Table21).
In Babcock v. Jackson,519 the case that launched the American choice-of-law revolution, the
NewYork court asked the same, outcome-oriented question:whether the place of the tort [should]
invariably govern the availability of relief for the tort.520 The court answered the question in the
negative, by establishing an exception to the traditional lex loci delicti rule for loss-distribution
cases, in which the tortfeasor and the victim were domiciled in the same state. Since then, 41 other
jurisdictions have joined the revolution and adopted the same exception to the lex locirule.
If we move to the level of general principles, we see that from the beginning of its history,
conflicts law approached the task of delineating the operation of state and national laws by
posing questions, such as:(1)whether laws attach to a territory, or to the citizens or domiciliaries of that territory; (2)whether a law operates only within the enacting states territory, or
beyond it as well; and (3)whether the application of a states law within its territory necessarily
excludes the application of the laws of other states. These questions usually are compressed into
two competing basic principles:territoriality and personality of the laws, although it would be
more accurate to speak of territoriality versus non-territoriality. Either way, the core question
is:When should the application of a states law depend on territorial factors, and when should
it depend on other, including personal, factors?521
The answers to this question vary over time, from country to country and from one field to
another. In tort conflicts, the American answer before the revolution was based exclusively on
territorial factors, in fact, just one factorthe place of the injury. After the revolution, the answer
depends on both territorial and personal factors, but also on factors of a different genus, such
as the policies of the involved states and their interests in applying their respective laws. But in
terms of outcomes, the answer depends on territorial factors in all but one pattern of cases:loss-
distribution conflicts, in which the parties are domiciled in the same state. In all other patterns of
tort conflicts, including cross-border torts, territoriality remains the dominant operating principle.
In the meantime, a parallel development has occurred in the rest of the world. As documented elsewhere, most of the 84 countries that have codified (or re-codified) their conflicts
law during the same 50-year period have arrived at similar results, but without a revolution.522
Fifty year ago, the lex loci delicti was a universal and all-encompassing rule, without exception.
Today, the picture is quite different. The lex loci rule continues to be the basic rule in all but
one of the 73 codifications that have addressed tort conflicts in this 50-year period. However,
519. 191 N.E.2d 279 (N.Y. 1963), discussed supra, at 12426.
520. Id. at 280 (emphasis in original) (footnote omitted).
521. For an in depth discussion of these questions, see S. Symeonides, Territoriality and Personality in
Tort Conflicts 405, etseq.
522. See S. Symeonides, Codifying Choice of Law 52108.
272
the lex loci rule is also subject to exceptions, in all but 8 of the 73 codifications. One of these
exceptionsthe common-domicile exceptionis present in 64 percent of the codifications
adopted during this period. This represents a significant gain of the personality principle at
the expense of territoriality. But the other exceptions to the lex loci rule are not necessarily
exceptions to the territoriality principle, even though they are encroachments against other
previously dominant principles of conflicts law. For example, the favor laesi exception in cross-
border torts does not operate against territoriality, because it simply leads to the law of a state
with a different territorial contact. But the exception operates against the heretofore-dominant
principle of conflicts justice, which was one of the reasons for which the lex loci rule was not
subject to exceptions. Likewise, the closer connection exception is not necessarily antithetical to territoriality, because, in many cases (though not all), the exception will point to a state
because of its territorial contacts, albeit contacts other than the locus delicti. The reason for, and
goal of, this exception was not necessarily to reduce the operating range of territoriality, but
rather to inject a degree of flexibility in handling atypical tort conflicts.
Fifty years ago, choice of law in tort conflicts was a simple exercise, simple enough to be
entrusted to a single and simple rulethe lex loci rule. Fifty years later, the world has become
far more complex, if only because of a virtual explosion of cross-border mobility and cross-
border activity. Conflicts law had to respond to this increased complexity. In the United States,
the response was a methodological revolution, but far less dramatic change in substantive outcomes. In the rest of the world, the response was a careful, deliberate process of carving exceptions out of the lex loci rule. Despite their remaining differences, these two developments have
one thing in common: they represent a maturation of the legal mind, at least the conflicts
mind, which no longer looks at conflicts problems through the lens of a single principle, or
value, to the exclusion of all others, and which no longer accepts either-or choices for complex problems.
nine
Products Liability
A.GENERAL
American products liability law, as a distinct body of law partly independent from general tort
and contract law from which it grew, is itself a product of the second half of the twentieth century. In a life parallel to the American conflicts revolution, this new body of law was born in
the 1960s, emancipated in the 1970s, grew by leaps and bounds in the 1980s, and then began
to slow down.1 Even during the slow periods, however, American courts face a much higher
number of product liability cases than courts in the rest of the world, because, for a variety of
reasons, Americans use their product liability law a lot while victims and courts elsewhere
dont.2 Naturally, the higher the number of product liability lawsuits, the higher the likelihood
that many of them will have multistate elements, thus producing conflicts of laws. This is particularly true in the United States, which is essentially a single market, yet artificially segregated
by state boundaries into multiple, diverse products-liability regimes. Thus, for better or worse,
American courts have had and continue to have the lions share of product liability conflicts,
and they have had to handle these conflicts with virtually no legislative guidance.3
This chapter reviews the performance of American courts over the last 25 years (1990
2015). It excludes:(1)cases decided as contract conflicts; (2)cases in which both the plaintiff
1. For the substantive development and numerical growth of American products liability law, see J. Zekoll,
Liability for Defective Products and Services, in S. Symeonides & J. Reitz (eds.), American Law in a Time
of Global Interdependence:U.S. National Reports to the XVIth International Congress of Comparative Law
121 (2002). The author reports that the number of personal-injury products liability filings in federal
courts alone grewfrom 2,393 in 1975 to 32,856 in 1997and then they began to slow downfrom
26,886 in 1998, to 18,781 in 1999, and 14,428 in 2000. See id. at 14849. These numbers do not include
filings in state courts, where the numbers are lower.Id.
2.M. Reimann, Liability for Defective Products and Services: Emergence of a Worldwide Standard?
General Report to the XVIth International Congress of Comparative Law, 53 (Brisbane, 2002). See also id.
at 57 (products liability litigation in the United States is big business while it is of marginal importance in
the rest of the world). Professor Reimann reports that, on average, about 30,000 products liability actions
(about one for every 90,000 inhabitants) are filed annually in the United States, whereas, for example, the
European Commission reports barely 100 court decisions in all the [EU] member states together,
over a fifteen-year period. Id. at 57,54.
3. For the Louisiana and Oregon codifications, see infra338.
273
274
and the defendant were affiliated with the same state or with states whose laws lead to the same
outcome; (3)cases in which the choice-of-law question remained undetected or uncontested,
or in which the courts discussion of it was cursory or inconsequential; (4)forum non conveniens cases; and (5)class action cases.4
B. THE PERTINENT CONTACTS

1.TheList
The abandonment of the lex loci delicti rule has allowed courts to consider multiple factual
contacts, or connecting factors, in the process of identifying the concerned jurisdictions. In
products liability conflicts, these contactsare:
(1) the domicile, habitual residence, or home-state of the party injured by the product
(hereafter interchangeably referred to as plaintiff or victim);
(2) the place where the injury occurred;
4. The bulk of the material for this chapter comes from a comprehensive study of products liability conflicts
cases decided between 1990 and 2006. See Symeonides, Choice-of-Law Revolution 265364. It is supplemented
by cases decided since then. For the extensive American bibliography on this subject, see M.F. Bigler, Proposal
for a National Rule of Law in International Drug Product Liability Cases, 9 J. Legisl. 318 (1982); S. Birnbaum.
& B. Wrubel, Foreign Plaintiffs and the American Manufacturer:Is a Court in the United States a Forum
Non Conveniens? 20 Forum 59 (1984); M.J. Davis, The Battle over Implied Preemption:Products Liability and
the FDA, 48 B.C. L.Rev. 1089 (2007); J. Garcia, Made in America:Latin American Consumers Meet Their
Maker, 4 ILSA J.Intl & Comp. L. 759 (1998); B.L. Hay, Conflicts of Law and State Competition in the Product
Liability System, 80 Georgetown L.J. 617 (1992); F.K. Juenger, Mass Disasters and the Conflict of Laws, 1989
U. Ill. L.Rev. 105 (1989); D. Klerman, Personal Jurisdiction and Product Liability, 85 So. Cal. L.Rev. 1551
(2012); P.J. Kozyris, Values and Methods in Choice of Law for Products Liability:AComparative Comment
on Statutory Solutions, 38 Am. J.Comp. L. 475 (1990); P.J. Kozyris, Conflicts Theory for Dummies:Aprs le
Dluge, Where Are We on Producers Liability? 60 La. L.Rev. 1161 (2000); M. Kraus, Product Liability and
Game Theory:One More Trip to the Choice-of-Law Well, 2002 B.Y.U. L.Rev. 759 (2002); M.W. McConnell,
A Choice-of-Law Approach to Products-Liability Reform, 37 Proc. Acad. Pol. Sc. 90 (1988); K.A. Piffat,
Liability for Injuries Caused by Unapproved Pharmaceuticals Marketed to U.S. Consumers Abroad, 7
Boston U. Intl L. J. 155 (1989); M. Reimann, Liability for Defective Products and Services: Emergence of
a World Standard?, in Convergence of Legal Systems in the 21st Century: General Reports Delivered at the
XVIth International Congress of Comparative Law, Intl Acad. Comp. L.367 (2006); C. Robertson, Products
Liability Litigation since the Passage of NAFTA and the Unintended Consequences, 35 Hous. J.Intl L. 179
(2013); M.B. Rockwell, Choice of Law in International Products Liability:Internationalizing the Choice, 16
Suffolk Transnatl L.Rev. 69 (1992); D.E. Seidelson, The Choice-of-Law Process in Product Liability Actions,
1989 Personal Injury Rev. 865 (1989); M. Sheinwold, International Products Liability Law, 1 Touro J.Transnl
L. 257 (1988); S. Symeonides, Choice of Law for Products Liability:The 1990s and Beyond, 78 Tul. L.Rev.
1247 (2004); S. Symeonides, Party Choice of Law in Product-Liability Conflicts, 12 Willamette J.Intl L.&
Disp. Resol. 263 (2004); S. Symeonides, The Quest for the Optimum in Resolving Product-Liability Conflicts,
in Essays in Honor of P.John Kozyris (2005); R.J., Weintraub, A Defense of Interest Analysis in the Conflict
of Laws and the Use of That Analysis in Products Liability Cases, 46 Ohio St. L.J. 493 (1985); R.J. Weintraub,
A Proposed Choice-of Law Standard for International Products Liability Disputes, 16 Brook. J.Intl L. 225
(1990); R.J. Weintraub, Choice of Law for Products Liability:Demagnetizing the United States Forum, 52
Ark. L. Rev. 157 (1999); S. Zabel & J. Eyres, Conflict-of-Law Issues in Multistate Product Liability Class
Actions, 19 Hamline L.Rev. 429 (1996); Zekoll, J., supra note1.
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275
(3) the place where the product was sold as such, either to the eventual victim (as is the
case with most consumer products) or to a third party, who owned the product at the
time of the injury (as is the case with industrial machinery or means of public transportation). This place is referred to hereafter as the place of acquisition;
(4) the place where the product was manufactured or designed (even though these two
contacts do not always coincide in the same state);and,
(5) the principal place of business of the manufacturer (hereafter referred to as
defendant).5
2.Qualifications
The above-list requires some explanation and qualification. First, one should not infer that all
of these contacts are taken into account in all cases. For example, cases decided under the lex
loci delicti rule do not consider, and often do not mention, the other contacts.
Second, in some cases, one or more of these contacts may be located in more than one
state. Thus, in the case of certain products used over long periods in several states, the injury
may be peripatetic. Recent examples include pharmaceuticals6 or tobacco products,7 which
the victims used over long periods of time while residing in several states. Other examples
include exposure to certain harmful products, such as asbestos, which leads to diseases, such
5. In some cases, parties other than the manufacturer, such as a distributor or retailer, might be defendants.
6. Braune v.Abbott Laboratories, 895 F.Supp.530 (E.D.N.Y. 1995), is a typical example of peripatetic
injury caused by a pharmaceutical product. In the 1950s, doctors prescribed a drug known as DES,
which was designed to prevent miscarriages, to pregnant women living in several states. The plaintiffs
in Braune were among the daughters of those women, and they had been exposed to DES during gestation. As a result of that exposure, plaintiffs gradually developed various abnormalities in their reproductive organs, including infertility, miscarriages, and cervical cancer, which became evident when
the plaintiffs reached childbearing age. The plaintiffs, like their mothers, had lived in several states
since the mothers had used the drug, thus raising difficult questions on when and where the injuries
occurred. The court concluded that the injuries occurred in the states in which they were diagnosed.
Id. at 559, 564. For other examples, see MillarMintz v.Abbott Labs., 645 N.E.2d 278 (Ill. App.1994)
(applying Illinois pro-plaintiff law to an action filed by a plaintiff whose mother used DES in the
1940s while domiciled in Illinois. The plaintiff had lived in NewYork, California, and then in Illinois,
where she was first apprised of her infertility and its causal relation to her mothers use of DES); Wyeth
v.Rowatt, 244P.3d 765, 776 (Nev. 2010)(applying Nevada law to an action by Nevada domiciliaries,
who were diagnosed with breast cancer in Nevada, after using the defendants estrogen replacement
drugs while living in other states; noting that until a slow-developing disease is detected, there is no
legally compensable injury to sue upon, the court concluded that the place of injury is the state where
the slow-developing disease is first ascertainable, which is the last event necessary for a claim against
a tortfeasor.Id.).
7. See Tune v.Philip Morris, Inc., 766 So. 2d 350 (Fla. App.2000) (action against tobacco manufacturer
brought by a plaintiff who used tobacco products for many years, while domiciled in two states, and
was diagnosed with lung cancer, while domiciled in the second state); Philip Morris, Inc. v. Angeletti,
752 A.2d 200 (Md. 2000)(class action against tobacco manufacturers by former and current Maryland
domiciliaries, who were addicted to tobacco products; decertifying class, because it was unlikely that the
deleterious effect of nicotine had taken effect upon the bodies of all plaintiffs in the same state).
276
as mesothelioma, that manifest themselves later, while the victim is domiciled in another state.8
Some courts have held that the injury occurs at the time and place of the exposure,9 while others have held that the injury occurs at the time and place of manifestation.10
Similarly, in many cases, the pertinent wrongful conduct occurs in more than one state. For
example, a product may be designed in one state, tested in another, approved in another, and
manufactured and assembled in yet another state.11
Third, each of the above-contacts may be fortuitous in a given case, such as the place of
injury in an airplane crash,12 or the place of acquisition in the case of a product purchased by
a tourist in a distant state.13
8. See, e.g,. McCann v.Foster Wheeler LLC., 225P.3d 516 (Cal. 2010)(exposure to asbestos, while the
victim was domiciled in Oklahoma, and diagnosis with mesothelioma many years later, while the victim
was domiciled in California; applying Oklahomas pro-defendant law); Pounders v.Enserch E & C, Inc.,
306P.3d 9 (Ariz. 2013)(exposure to asbestos in New Mexico, while the victim was domiciled there, and
diagnosis with mesothelioma 20 years later, while the victim was domiciled in Arizona; applying New
Mexicos pro-defendant law); Rice v.Dow Chem. Co., 875P.2d 1213 (Wash. 1994)(exposure to a herbicide, while the victim was domiciled in Oregon, and diagnosis with resulting disease many years later,
while the victim was domiciled in Washington; applying Oregons pro-defendantlaw).
9. See, e.g., Ross v.Johns-Manville Corp., 766 F.2d 823, 82728 (3d Cir. 1985); Renfroe v.Eli Lilly & Co.,
686 F.2d 642, 64547 (8th Cir. 1982); Ins. Co. of N.Am. v.Forty-Eight Insulations, Inc., 633 F.2d 1212
(6th Cir. 1980); In re Joint E. & S. Dist. Asbestos Lit., 721 F. Supp. 433, 435 (E.D. and S.D.N.Y. 1988);
Trahan v.E.R. Squibb & Sons, Inc., 567 F.Supp.505, 507 (M.D. Tenn. 1983); Wilson v.Johns-Manville
Sales Corp., 684 F.2d 111, 11517 (D.C. Cir. 1982); Millar-Mintz v.Abbott Labs., 645 N.E.2d 278, 282 (Ill.
App.1994); Rice v.Dow Chem. Co., 875P.2d 1213 (Wash.1994).
10. See, e.g., Wyeth v.Rowatt, 244P.3d 765 (Nev. 2010); Celotex Corp. v.Meehan, 523 So. 2d 141 (Fla.
1988); Clayton v.Eli Lilly & Co., 421 F.Supp.2d 77, 7980 (D.D.C.2006); Smith v.Walter C.Best, Inc.,
756 F.Supp.878, 88081 (W.D. Pa. 1990); Harding v.Proko Indus., Inc., 765 F.Supp.1053, 105657 (D.
Kan. 1991); In re NewYork City Asbestos Litig., 921 N.Y.S.2d 466 (N.Y. Sup.2011); Braune v.Abbot Labs,
895 F.Supp.530, 559 (E.D.N.Y.1995).
11. See, e.g., Patten v.Gen. Motors Corp., 699 F.Supp.1500 (W.D. Okla. 1987)(involving a car designed
in Michigan, manufactured in Ohio, and customized in Florida; concluding that [b]ecause the conduct
causing the injury occurred in so many different states, that factor is less important. Id. at 1505); Dorman
v.Emerson Elec. Co., 23 F.3d 1354 (8th Cir. 1994), cert. denied, 513 U.S. 964 (1994) (involving a miter saw
that was manufactured in Taiwan by a Taiwanese corporation, under license from defendant, a Missouri
corporation, which had designed and tested that line of products in Missouri); Crouch v. Gen. Elec. Co., 699
F.Supp.585 (S.D. Miss. 1988)(involving helicopter engines designed and manufactured in Massachusetts
and installed in a helicopter in Connecticut; defendant had its principal place of business in NewYork, its
headquarters in Connecticut, its engine manufacturing division in Ohio, and its engine design division in
Massachusetts); Price v.Litton Sys., Inc., 784 F.2d 600 (5th Cir. 1986)(helicopter designed by one defendant
in California and manufactured by another defendant in Virginia); Bonti v.Ford Motor Co., 898 F.Supp.391
(S.D. Miss. 1995), aff d mem., 85 F.3d 625 (5th Cir. 1996)(car designed in Michigan and manufactured in
Kentucky); Rutherford v.Goodyear Tire & Rubber Co., 943 F.Supp.789 (W.D. Ky. 1996), aff d, 142 F.3d 436
(6th Cir. 1998)(involving a car tire manufactured in Kansas by Goodyear, an Ohio corporation, purchased
by Ford Motor Co., a Michigan corporation, and installed on a Ford car in Fords Kentucky assembly plant).
For the problem of testing products in a state chosen because of its low liability laws, see J.J. Fawcett,
Products Liability in Private International Law:AEuropean Perspective, 238 Recueil des Cours 9, 127 (1993).
12. See, e.g., In re Air Crash Disaster at Sioux City, Iowa, 734 F.Supp.1425 (N.D. Ill. 1990)(discounting
as fortuitous the occurrence of the injury in Iowa, in a case involving a flight from Denver to Chicago).
13. See, e.g., Danielson v.Natl Supply Co., 670 N.W.2d 1 (Minn. App.2003) (involving a stepladder that
a Minnesota trailer-owner purchased, while traveling through Texas); Smith v.Alza Corp., 948 A.2d 686
Products Liability
277
Fourth, the above-contacts are not necessarily of equal weight or pertinence. For example,
the place of the products acquisition is generally less pertinent when a party other than the
victim acquired the product, or when the victim was not the original acquirer. Likewise, in
todays world of multistate corporate mobility, the manufacturers principal place of business is
justifiably given less weight,14 and in some casesthough not as many as one might expect
the defendant is not the manufacturer, but rather the seller of the product.
A final qualification affecting the relative pertinence of some of the above-
contacts
has to do with the inherent breadth of the very term product, in encompassing things of
widely diverse qualities and uses. For example, certain products, such as industrial or similar
production-equipment, are intended for use in one state, while other products, such as airplanes or other means of public transportation, are intended for use in more than one state.
In-between the two categories are consumer products, such as pharmaceuticals, appliances,
foods, cosmetics, and personal vehicles that are used primarily, but not exclusively, in one
state. Although products of the last category usually are purchased directly by the user and
eventual victim of the product, the products of the first two categories are purchased by someone other than the victim, and are usually not subject to the victims control. The nature of the
product often determines the relative pertinence of each of the above-contacts. For example,
the place of injury is given significant weight in cases of industrial machinery, especially one
attached to a building, and much less weight in the case of an airplane crash. Similarly, as
said above, the place of acquisition is given more weight when the acquirer is the victim than
when it isnot.
Despite these qualifications, the above-list of contacts remains a useful vehicle through
which to catalog and analyze products liability conflicts. Furthermore, grouping these contacts
into plaintiff-affiliating and defendant-affiliating contacts can facilitate the analysis, or at
least the description of it. Thus, the plaintiff s domicile and the place of injury are plaintiff-
affiliating contacts, while the defendants principal place of business and the place of the manufacture are defendant-affiliating contacts. The remaining contact, the place of the products
acquisition, is where, figuratively speaking, the two sides meet each other. However, at least
when the product is acquired by the victim, rather than by a third party (as is the case with an
airplane acquired by an airline company), this contact can be considered as a victim-affiliated
contact. It is depicted as such in Figure 3 and is treated accordingly in the discussion that
follows.
(N.J. Super. Ct. App. Div. 2008) (involving a prescription drug that the Alabama plaintiff bought during a flight layover in Pennsylvania); Robinson v.McNeil Consumer Healthcare, 615 F.3d 861 (7th Cir.
2010)(involving a nonprescription drug that the victim bought it in Georgia, while she was domiciled in
Virginia, and later used in Virginia); Montgomery v.Wyeth, 580 F.3d 455 (6th Cir. 2009), rehg and rehg
en banc denied (Oct. 23, 2009)(involving a drug prescribed to the plaintiff in Georgia and later used in
her home-state of Tennessee).
14. See, e.g., Air Crash Disaster, 734 F.Supp.1425 (noting that NewYork was General Electrics principal
place of business, only because the companys other holdings, unrelated to manufacturing, were located
in that state; discounting this contact for this reason); Crouch v.General Elec. Co., 699 F.Supp.585 (S.D.
Miss. 1988)(involving a defendant that had its principal place of business in NewYork, its headquarters in
Connecticut, its engine manufacturing division in Ohio, and its engine design division in Massachusetts).
278
PlaintiffAffiliating
contacts
Victims domicile
Injury
DefendantAffiliating contacts
Acquisition
Manufacture
Defendants PPB
Figure3. The Pertinent Contacts in Product Liability Conflicts.
C. THE CONTENT OFTHE CONTACT-STATESLAWS

One important lesson of the modern American conflicts experience is that one cannot resolve
conflicts intelligently and rationally without giving considerable weight to the substantive content of the laws of each involved state. Product liability laws may be categorized in many different ways, but at the most basic level these laws favor either the manufacturer or the injured
person. This chapter refers to the former laws as pro-defendant laws and to the latter as
pro-plaintifflaws.
The most common examples of pro-defendant laws are statutes of repose, which bar lawsuits against manufacturers after a specified number of years from the date the product entered
the stream of commerce (first use), regardless of when the injury occurs. Other examples are
rules that prohibit punitive damages; require the plaintiff to prove the manufacturers negligence; accord manufacturers special defenses, such as state-of-the-art; or shield a manufacturers successor from liability for the predecessors products.
Conversely, among the clearest examples of pro-plaintiff laws are the absence of a statute
of repose protecting manufacturers, and rules that impose strict liability, punitive damages,
unlimited compensatory damages, or corporate successor liability on manufacturers.
D. TYPICAL PATTERNS OFPRODUCT CONFLICTS

The combination of pertinent contacts and product liability laws produces two major groups
of product liability conflicts, depending on whether the court chooses the law of a state affiliated with the plaintiff or a state affiliated with the defendant and on which party the chosen
law benefits:
(1) The first group (hereafter called direct conflicts) encompasses cases in which the
plaintiff-affiliating contacts (namely, the plaintiff s domicile, injury, or place of the
products acquisition) are located in a state or states that have pro-plaintiff laws, while
the defendant-affiliating contacts (namely, the defendants principal place of business
and the products manufacture) are located in a state or states that have pro-defendant
laws. Depending on which law the court chooses, this group is subdivided into two
patterns:
(a) Cases applying the pro-defendant law of a state with a defendant-affiliating contact
or contacts (Pattern 21);and,
(b) Cases applying the pro-plaintiff law of a state with a plaintiff-affiliating contact or
contacts (Pattern22).
Products Liability
279
(2) The second group (hereafter called inverse conflicts) encompasses cases in which the
plaintiff-affiliating contacts are located in a state or states that have pro-defendant laws,
while the defendant-affiliating contacts are located in a state or states that have pro-plaintiff
laws. Depending on which law the court chooses, this group is subdivided into two patterns:
(a) Cases applying the pro-plaintiff law of a state with a defendant-affiliating contact
or contacts (Pattern 23);and,
(b) Cases applying the pro-defendant law of a state with plaintiff-affiliating contact or
contacts (Pattern24).15
Table 22, below, depicts these patterns, with shading denoting the state of the applicablelaw.
Table22. The Four Major Patterns ofProduct Liability Conflicts

Plaintiff-Affiliating Contacts
Patterns
Defendant-Affiliating Contacts
Ps domicile
Injury
Acquisition
Manufacture
Ds PPB
Direct conflicts
21
22
Pro-P
Pro-P
Pro-P
Pro-P
Pro-P
Pro-P
Pro-D
Pro-D
Pro-D
Pro-D
Inverse conflicts
23
24
Pro-D
Pro-D
Pro-D
Pro-D
Pro-D
Pro-D
Pro-P
Pro-P
Pro-P
Pro-P
I I . D I R E C T C O NF L I CT S : CA S ES
I N W H I C H E A C H S TAT E S L AW
FAV O R S T H E LOCA L L I T I GA NT
Direct conflicts are present when the state (or states) with the defendant-affiliating contacts
(i.e., the state of the products manufacture and the defendants principal place of business) has
a pro-defendant law, while the state with the plaintiff-affiliating contacts has a pro-plaintiff law.
Under Curries interest analysis, these conflicts are likely to present the true conflict paradigm,
because each state would have an interest in protecting its own domiciliary. Under the same
assumptions, these cases should be decided under the law of the forum qua forum.16 Indeed,
several, but by no means all, of these cases have applied the law of the forum, but not necessarily for the reasons Currie postulated.
For the sake of convenience, this section divides these cases into two groups:(1)those that
have applied the prodefendant law of the defendantaffiliated state, and (2)those that have
applied the proplaintiff law of the plaintiff-affiliated state. The discussion begins with the first
group, which is much smaller than the second.
15. This chapter does not discuss cases in which the plaintiff and the defendant are domiciled in the same
state, or in which they are domiciled in states whose laws produce the same outcome (i.e., false conflicts).
16. See supra10003.
280
A. CASES APPLYING THEPRO-DEFENDANT

LAW OFA DEFENDANT-AFFILIATEDSTATE
One of the early cases that applied the pro-defendant law of a defendant-affiliated state (depicted
in Table 23) was Kelly v. Ford Motor Co.,17 a diversity case decided under Pennsylvania conflicts law. Kelly is atypical in the sense that the law it applied was that of a non-forum state,
and it favored a foreign defendant at the expense of a local plaintiff. The victim, a domiciliary
of Pennsylvania, was killed in that state by a car he purchased there. The defendant Ford, a
Michigan-based corporation, had designed, tested, and manufactured the car in Michigan and
sold it through a Pennsylvania dealer. Pennsylvania, but not Michigan, imposed punitive damages on the manufacturer.
Table23. Cases Applying theProDefendant Law ofa
Defendant-AffiliatedState
Pattern
Ps domicile
Injury
Acquisition
Manufacture Ds PPB
21. Direct conflict
Pro-P
Pro-P
Pro-P
Pro-D
Pro-D
The court acknowledged Pennsylvanias interests in punishing defendants who injure its
residents and in deterring them and others from engaging in similar conduct which poses
a risk to Pennsylvanias citizens.18 However, the court found that Michigan had a very strong
interest in denying punitive damages, to ensure that its domiciliary defendants are protected
from excessive financial liability.19 The court reasoned that [b]y insulating companies such as
Ford, who conduct extensive business within its borders, Michigan hopes to promote corporate
migration into its economy [which] will enhance the economic climate and well being of
the state of Michigan by generating revenues.20
The court concluded that, if faced with such a conflict, the Pennsylvania Supreme Court
would adopt a test that focuses on either the place of the defendants conduct or the defendants principal place of business21 (both of which were situated in Michigan), rather than
on the place of the victims injury or domicile (both of which were situated in Pennsylvania),
and it predicted that the Pennsylvania court would hold that Michigans law prohibiting the
award of punitive damages applies to the instant case.22
While such predictions are common among federal courts in diversity cases, this was a risky
prediction. Although the Pennsylvania Supreme Court has yet to decide a case involving this
pattern, other Pennsylvania courts,23 including federal courts sitting in the same Pennsylvania
17. 933 F.Supp.465 (E.D. Pa.1996).
18. Id. at470.
19. Id.
20. Id.
22. Id. at470.
23. See Apple v.Ford Motor Co., 2004 WL 3218425 (Pa. Commw. Ct. Nov. 18, 2004), discussed infra295.
Products Liability
281
district,24 have reached different conclusions, as have many courts in other states, whose decisions are discussed in the next section.
The Kelly court was correct to state that, in punitive damages conflicts, the victims domicile
is not a relevant contact. But the court erred in asserting that the place of injury is also irrelevant,25 and in carelessly stating that either the manufacturers home-state or the state of the
critical conduct necessarily has a greater interest in applying its laws than the state of injury.
Taken to its logical conclusion, this assertion would enable a state with defendant-protecting
laws unilaterally to exonerate the manufacturer from the consequences of activities that are
bound to produce predictable (and insurable) injuries in anotherstate.
In any event, Kelly becomes defensible, once it is understood that its holding was limited to
the issue of punitive damages and did not extend to other conduct-regulating issues or, especially, loss-distribution issues. Indeed, the only issue before the Kelly court was the defendants
motion to deny punitive damages. As a subsequent, unpublished ruling indicates, other issues
were decided under Pennsylvania law.26 With this limitation, Kelly becomes less of an outlier.
It is consistent with the conservative position of denying punitive damages when two of the
three contacts that are relevant in punitive-damages conflicts (conduct, injury, and defendants
domicile) are located in a state that prohibits such damages.27
In fact, most of the product liability cases that have denied punitive damages, under the law
of the manufacturers home-state and place of conduct, like Kelly, have applied the pro-plaintiff
law of the victims home-state and place of injury to all other contested issues, including liability
and compensatory damages. For example in Campbell v.Fawber,28 another Pennsylvania case,
the court followed Kelly and applied Michigan law, denying punitive damages to a Pennsylvania
plaintiff who was injured in Pennsylvania by a car manufactured by General Motors (GM) in
Michigan. The court repeated Kellys erroneous contention that in punitive-damages conflicts
the location of the injury [is] not [a]relevant contact[],29 but at least it was careful to note that
Michigan was both GMs home-state and the place of the critical conduct. Moreover, the court
stressed that in light of the unique purpose of punitive damages, which is to punish, rather
than compensate, its decision was limited strictly to the issue of punitive damages, and that
Pennsylvania law would govern all other issues in the case.30
Several cases followed the same dpeage, by:(1)denying punitive damages under the law
of the state with the defendant-affiliating contacts, and (2) applying the pro-plaintiff law of
the state with the plaintiff-affiliating contacts to all other issues, including liability and compensatory damages. Among them are cases decided under the conflicts laws of Florida,31
24. See Duchesneau v.Cornell Univ., 2012 WL 3104428 (E.D. Pa. July 31, 2012); Kukoly v.World Factory,
Inc., 2007 WL 1816476 (E.D. Pa. June 22, 2007). These cases are discussedinfra.
25. See Kelly, 933 F. Supp. at 469 ([W]hen punitive damages are the subject of a conflict of laws, the
domicile or residence of the plaintiff and the place where the injury occurred are not relevant contacts.).
26. See Kelly v.Ford Motor Co., 1996 WL 639832 (E.D. Pa. Oct. 29, 1996)(deciding the issue of seat belt
use under Pennsylvanialaw).
27.As noted supra 269, this is the position taken by the Louisiana codification, the ALIs Complex
Litigation Project, and several courts.
28. 975 F.Supp.2d 485 (M.D. Pa.2013).
29. Id at 50708.
30. Id. at508.
31. See Krause v.Novartis Pharms. Corp., 926 F.Supp.2d 1306 (N.D. Fla. 2013)(denying punitive damages under New Jersey law, while noting the parties agreement that Florida law would govern all other
282
NewYork,32 North Carolina,33 Ohio,34 Tennessee,35 and the District of Columbia.36 All of these
cases involved pharmaceutical products manufactured in New Jersey by the same New Jersey
defendant, Novartis. All of these cases applied New Jersey law, which did not allow punitive
damages, but, on all other issues, they applied the laws of the states in which the plaintiffs
resided, used the product, and suffered the injuries.37
For example, in Zimmerman v. Novartis Pharmasecuticals. Corp., the court applied
Maryland law to issues of liability and compensatory damages, and New Jersey law on the
issue of punitive damages. In deciding that New Jersey law should govern the issue of punitive
damages, the court repeated the assertion made by some other courts that the place of injury
is simply fortuitous with respect to the punitive damages issue.38 The fortuitous characterization is even less accurate than the characterization as not relevant. When a manufacturer
advertises and sells its products in a given state, as Novartis did in Maryland in this case, the
occurrence of a product-induced injury in that state is not only non-fortuitous; it is entirely
predictable. Be that as it may, the court explained its holding as follows:
The Defendant, having its principal place of business in New Jersey, has a justified expectation of
being subject to New Jersey law for punitive damages. The justified expectations of the Plaintiff
are met as she will be compensated under [Maryland] law. The basic policy underlying punitive
damages is to punish and deter the Defendant, whose conduct occurred in New Jersey, thus the
interests of the tort field are enhanced through consistent application of New Jerseylaw.39
Meng v.Novartis Pharmaceuticals Corp.40 involved the same New Jersey defendant and the
same pattern, except that it was decided in New Jersey, rather than in the plaintiff s home-state.
issues); Chiles v. Novartis Pharms. Corp., 923 F. Supp. 2d 1330 (M.D. Fla. 2013) (accord); Kirchman
v. Novartis Pharms. Corp., No. 8:06
cv
1787
T
24
TBM, 2014 WL 2722483 (M.D. Fla. June 16,
2014)(accord); Guenther v.Novartis Pharms. Corp., No. 6:08cv456, 2013 WL 1225391(M.D. Fla. Mar.
27, 2013)(accord).
32. See Deutsch v.Novartis Pharms. Corp., 723 F.Supp.2d 521 (E.D.N.Y. 2010)(denying punitive damages under New Jersey law, while noting the parties agreement that NewYork law would govern all other
issues).
33. See Brown v.Novartis Pharms. Corp., 2012 WL 3066588 (E.D.N.C. July 27, 2012)(denying punitive
damages under New Jersey law, but holding that North Carolina law governed all other issues).
34. See Mathews v.Novartis Pharms. Co., 953 F.Supp.2d 811 (S.D. Ohio2013).
35. See Talley v. Novartis Pharms. Corp., 2011 WL 2559974 (D.N.C. June 28, 2011) (decided under
Tennessee conflicts law) (denying punitive damages under New Jersey law, while noting that North
Carolina law governed all other issues); Zimmerman v.Novartis Pharms. Corp., 889 F.Supp.2d 757 (D.
Md. 2012)(decided under Tennessee conflictslaw).
36. See Williams v.Novartis Pharms. Corp., 15 F.Supp.3d 761 (S.D. Ohio 2014)(decided under D.C.conflicts law) (denying punitive damages under New Jersey law, while noting that Ohios interest in making
sure that its residents are adequately compensated for injuries occurring within its borders is satisfied by
the application of Ohio law to the issue of liability. Id. at768).
37. In most of these cases, the defendant agreed to the application of the law of the state of injury to
issues other than punitive damages.
38. Zimmerman, 889 F.Supp.2d. at 76263 (quotation marks omitted).
39. Id. at 764 (quotation marks omitted).
40. 2009 WL 4623715 (N.J. Super. Nov. 23,2009).
Products Liability
283
Predictably, the court applied New Jersey law to the punitive damages issue. Golden v.Wyeth,
Inc.41 involved a Pennsylvania manufacturer and New Jersey plaintiffs, who chose to sue in
NewYork. Their choice of forum paid off, because the NewYork court applied Pennsylvania
law, which allowed punitive damages, and New Jersey law to all other issues.
A few more cases have also applied the pro-defendant law of a defendant-affiliated state,
rather than the pro-plaintiff law of a plaintiff-affiliated state, in conflicts involving punitive
damages,42 statutes of repose,43 successor liability,44 and other issues.45 But, in all of these cases,
the plaintiff-affiliating contacts were dispersed in different states, some of which had pro-
defendant laws.46
B. CASES APPLYING THEPRO-PLAINTIFF

LAW OFA PLAINTIFF-AFFILIATEDSTATE
The above-cases are outnumbered by cases of the same pattern that have reached the opposite result by applying the pro-plaintiff law of a state that had the plaintiff-affiliating contacts.
These cases (depicted in Table24) are discussed below, beginning with those in which the state
41. 2013 WL 4500879.

42. See Gadzinski v.Chrysler Corp., 2001 WL 629336 (N.D. Ill. May 29, 2001)(refusing to award punitive damages under Illinois law to an Illinois plaintiff who was injured in Indiana by a product she
purchased from an Indiana dealer; Indiana law did not allow punitive damages); Aguirre Cruz v. Ford
Motor Co., 435 F.Supp.2d 701 (W.D. Tenn. 2006)(applying Michigan law and denying punitive damages in product liability action filed against Michigan manufacturer by Tennessee domiciliaries injured
in Mexico, in an accident caused by a car designed by defendant in Michigan and sold to plaintiffs in
Tennessee; Tennessee law provided for punitive damages); Danziger v.Ford Motor Co., 402 F.Supp.2d
236 (D.D.C. 2005)(denying punitive damages in product liability action filed against Michigan manufacturer by District of Columbia domiciliaries, arising from an accident in Nebraska involving a car designed
by defendant in Michigan, manufactured in Kentucky, and sold to plaintiffs in Maryland; Michigan and
Nebraska prohibited punitive damages, while Maryland allowed them; finding that only Maryland and
Michigan were interested, but using renvoi logic and finding no conflict, because a Maryland court would
have applied Nebraska law, which denied punitive damages); Caballero v. Ford Motor Co., 2014 WL
2900959 (Del. Super. June 24, 2014) (applying Michigan law and denying punitive damages, in a case
involving a Ford car that was designed in Michigan, manufactured and sold in Missouri, and rolled over
in Mexico, killing five Mexican nationals domiciled in other states).
43. See Mahoney v. Ronnies Road Serv., 468 S.E.2d 279 (N.C. App. 1996), review on additional issues
denied, appeal dismissed, 476 S.E.2d 118 (N.C. 1996) aff d mem., 481 S.E.2d 85 (N.C. 1997); Blazevska
v. Raytheon Aircraft Co., 522 F.3d 948 (9th Cir. 2008); Woessner v. Air Liquide Inc., 242 F.3d 469 (3d
Cir.2001).
44. See, e.g., Jones v.SEPTA, 1993 WL 141646 (E.D. Pa.1993).
45. See Brewer v. Dodson Aviation 447 F. Supp. 2d 1166 (W.D. Wash. 2006); Natl Union Fire Ins. Co.
of Pittsburgh v.Dassault Falcon Jet Corp., 263 Fed. Appx. 604, 2008 WL 122150 (9th Cir. Jan. 11,2008).
46.In In re Air Crash Disaster at Sioux City, Iowa, 734 F.Supp.1425 (N.D. Ill. 1990), the plaintiff-affiliated
contacts and the defendant-affiliated contacts were scattered in several states. The court rightly discounted
the victims domicile and held that the question of whether the two defendant manufacturers should be
subject to punitive damages should be determined under the law of the place of design and manufacture
of the product, rather than the law of the defendants principal place of business, or the law of the place
of the airplanecrash.
284
Table24. Cases Applying thePro-Plaintiff Law ofa PlaintiffAffiliatedState

Pattern
Ps domicile
Injury
Acquisition
Manufacture
Ds PPB
22a. Direct conflict
Pro-P
Pro-P
Pro-P
Pro-D
Pro-D
with the pro-plaintiff law had all three plaintiff-affiliating contactsthe plaintiff s domicile, the
injury, and the place of the products acquisition.
1. Choice Based onThree Contacts

Rowland v.Novartis Pharmaseuticals. Corp.47 involved the same New Jersey manufacturer, Novartis,
who succeeded in avoiding punitive damages, under New Jersey law, in several cases discussed in
the previous section. In this case, Novartis was unsuccessful. The court applied Pennsylvania law,
which allowed punitive damages. Pennsylvania was the victims home-state and the place where
they were prescribed a Novartis drug, used it, and suffered the resulting injury. The court methodically disposed of all the defendants arguments against the application of Pennsylvanialaw.48
Responding to the defendants argument that the place of injury is fortuitous in punitive
damages conflicts, the court said: When the Plaintiffs are domiciled in the place of injury,
purchase the product in question there, and use it there, the place of injury is not fortuitous.
Here, realistically this particular injury to these particular Plaintiffs could not have occurred
anywhere other than Pennsylvania.49 The court also concluded that, because this was a failure-
to-warn case, the pertinent conduct was not the defendants decision-making process in New
Jersey, but rather the defendants failure to provide adequate warnings to the plaintiffs doctors
in Pennsylvania.50 The court expressed respect51 for New Jerseys interest, but notedthat
New Jerseys legislative decision as to the availability and potential magnitude of punitive
damages cannot conclusively extend to conduct by a New Jersey corporation that occurred in
Pennsylvania and allegedly caused injuries in Pennsylvania in those circumstances in which
Pennsylvania also has such a vital and articulated interest in preventing harm to its citizens
and in which the Defendant has knowingly and purposefully elected to deliver its products to
Pennsylvania residents.52
47. 983 F.Supp.2d 615 (W.D. Pa. 2013)(decided under NewYork and D.C.conflictslaws).
48. The defendant conceded that Pennsylvania law governed all other issues.
49. Rowland, 983 F.Supp.2d at625.
50. See id. (In prescription drug products liability cases involving an alleged failure to warn, the conduct
causing injury occurs primarily where the injured party was prescribed and ingested the drug. The
Plaintiffs and their doctors allegedly failed to receive adequate warnings in Pennsylvania, Plaintiffs were
prescribed the drug in Pennsylvania, and were infused with the drug in Pennsylvania.)
51. Id. at626.
52. Id. at 62627.
Products Liability
285
The court concluded by reiterating Pennsylvanias strong interest in regulating the conduct
of pharmaceutical companies, whether Pennsylvania-based or not, where, as in this case, they
knowingly and affirmatively reach into Pennsylvania, conduct business within its territory, and
market and sell products that allegedly harm Pennsylvania citizens.53
Winter v.Novartis Pharmaseuticals Corp.54 was the first appellate case involving the same
manufacturer and the same pattern. The result was the same as in Rowland. The court applied
the law of Missouri, the state in which the Missouri plaintiff used the defendants drug and suffered the injury. The defendant argued that New Jersey had the most significant relationship
to the punitive damages claim because that state [was] the site of any labeling and marketing misconduct.55 Applying Missouri conflicts law, the Eighth Circuit rejected that argument.
The court reasoned that although New Jersey may have an interest in its corporations being
governed by its punitive damages provisions, Missouri had a strong interest in applying its
punitive damages laws to deter conduct by corporations doing business in Missouri that harms
Missouri residents.56
Kramer v.Showa Denko K.K.,57 a similar case filed against a Japanese manufacturer, reached
the same result, albeit under a technically erroneous rationale. The plaintiff, a NewYork domiciliary, purchased and used in NewYork a drug manufactured in Japan that caused him injuries in New York. The court erroneously assumed this case was governed by the Neumeier
rules, although these were designed for conflicts between loss-distribution rules, not conduct-
regulating rules, especially punitive-damages rules. The court also assumed that in this case
Neumeier Rule 2 required the application of New York law. However, Rule 2 consists of two
parts (Rules 2a and 2b) and, as explained earlier, these two parts conflict with each other in
split-domicile cross-border torts, such as Kramer, in which the conduct and the injury occur
in the tortfeasors and the victims home-states, respectively.58 Nevertheless, the court reached
the right result. In addition to NewYorks two contacts, the fact that the product was sold there
through ordinary commercial channels weakens any argument of unfair surprise on the part
of the defendant. Foreign manufacturers who choose to market their products in the lucrative
United States market are well aware of the possibility of punitive damages, and they are in a
position to plan, insure, and price their products accordingly.
53. Id. at 626. See also id. (Pennsylvania maintains an interest in its own punitive damages law, which
is intended to protect its citizens from defective products and to encourage manufacturers, wherever
headquartered, to produce safe products. When those products are systematically introduced into
Pennsylvania, Pennsylvania has a legitimate and substantial interest in applying its punitive damages law
to conduct that occurred in Pennsylvania and allegedly caused an injury within its borders.).
54. 739 F.3d 405 (8th Cir.2014).
55. Id. at410.
56. Id. See also id. (New Jerseys interest, balanced against Missouris, does not overcome Missouris presumption that the law of the place of injury should apply.). For another case involving the same manufacturer and reaching the same result, see Gilliland v.Novartis Pharms. Corp., 33 F.Supp.3d 1060 (S.D. Iowa
2014). For cases involving other manufacturers, see In re NuvaRing Prods. Liability Litig., 957 F.Supp.2d
1110 (E.D. Mo. 2013); Barba v.Carlson, 2014 WL 1678246 (Del. Super. Apr. 8,2014).
57. 929 F.Supp.733 (S.D.N.Y.1996).
58. See supra 15556. Rule 2a pointed to Japanese law, because the defendants conduct occurred in
Japan, and Japan did not impose punitive damages. Rule 2b pointed to NewYork law, because the victim
was injured in NewYork and NewYork permitted recovery of punitive damages.
286
Kukoly v.World Factory, Inc.,59 a Pennsylvania case involving the same pattern, reached the
same result. The product in question, a utility wagon, was manufactured in China for a Texas
defendant and sold to a Pennsylvania plaintiff through a Wal-Mart store in Pennsylvania. In
rejecting the defendants argument against the application of Texas law, which allowed punitive
damages,60 the court distinguished Kelly61 on the ground that Texas had only one of the two
defendant-affiliating contacts.62 But the courts reasoning for applying Pennsylvania law, which
allowed punitive damages, is a clear repudiation of Kelly. Noting that each states governmental
interests would be impaired by the application of each others law,63 the court decided to apply
Pennsylvania law, because Pennsylvania was the place of injury, the plaintiff s domicile, and the
place of the products acquisition. As the court noted, the defendant
place[d]products into the stream of commerce where it is reasonably foreseeable its products will
end up in Pennsylvania. Plaintiffs did not travel to [defendants] home state of Texas to purchase
the allegedly defective wagon. Instead, the Plaintiffs traveled to a local Wal-Mart store in their
domicile, the Commonwealth of Pennsylvania.64
In Dodson v.Ford Motor Co.,65 a Rhode Island court provided an extensive critique of Kelly.
The facts and issues were the same: a car manufactured by Ford in Michigan was sold and
used in Rhode Island, where it caused the death of a Rhode Island domiciliary and injuries to
another. The court rejected Fords arguments in favor of applying Michigan law, which prohibited punitive damages. First, the court pointed out that, in addition to the injury, part of
the pertinent conduct also occurred in Rhode Island, because Ford allegedly knew of the cars
defects and failed to issue a recall or to warn its owners about the defects.66
Regarding state interests, the court noted that, although Michigan had expressed its strong
interest in promoting the financial stability of businesses located there and the overall economic well-being of its citizenry by refusing to impose punitive damages, Rhode Island had
taken a similarly strong, but directly contradictory position [b]y providing for punitive
59. 2007 WL 1816476 (E.D. Pa. June 22,2007).

60. Texas had a higher standard of proof (clear and convincing evidence) for punitive damages and
limited the amount. Pennsylvania had a lower standard of proof (sufficient evidence) and did not limit
the amount.
61. See supra 28081.
62. See Kukoly, 2007 WL 1816476 at *3 ([T]he facts regarding the place of conduct contact are in dispute. Texas may have very little, if any, contacts with this alleged incident other than being the state where
[defendant] has its principal place of business.).
63. Id.
64. Id.
65. C.A. No. PC 96-1331, 2006 WL 2642199 (R.I. Super. Sept. 5,2006).
66. See id. at *4 (noting that although a significant amount of the conduct that led to the alleged
injuries occurred in Michigan, where Ford designed and manufactured the car, as well as made the decision not to recall it, [t]he alleged injury-causing conduct clearly extends into Rhode Island [because
plaintiff] suggests that Ford knowingly placed the Dodson vehicle into the Rhode Island stream of commerce and knowingly failed to recall that car or warn its owners of the risks of the defect. Therefore,
[b]oth Michigan and Rhode Island thus have legitimate claims that the conduct by Ford that caused the
alleged injury occurred within its borders.).
Products Liability
287
damages [for] willful, reckless, or wicked conduct to punish reprehensible tortfeasors

and to deter similar future behavior.67 The court rejected Fords argument that Rhode Islands
interest is satisfied by awarding compensatory damages under Rhode Island law, noting that
an award of punitive damages would further Rhode Islands interest in protecting its citizens,
through deterrence, because the financial penalty would emphasize the importance the state
places on safety and corporate responsibility through its policy.68
Finally, the court characterized Kelly as an outlier and adopted this authors reasoning by
quoting the following excerpt from one of his publications that explained why, in cases of this
pattern, it is appropriate to apply the law of the state with the three plaintiff-affiliating contacts:
[a]s long as the product reached the particular state through ordinary commercial channels, then
the application of that states law is fair to the victim and not unfair to the defendant. A consumer who is injured in her home state by a product she has purchased there is entitled to the
protection of that states law, regardless of where the product was manufactured or by whom.
Correspondingly, in a global market with free and predictable circulation of goods, the manufacturer who chooses to market his products in the plaintiff s state may not reasonably expect to
carry with him the protective laws of the state of manufacture. One of the tradeoffs in entering
a particular market and benefiting from it is the foreseeable and insurable risk of being held
accountable under the higher product-liability standards of that market.69
Adopting this reasoning, the court concluded:

[I]t would be appropriate for this Court, here, to apply Rhode Island law because Ford has chosen
to market its products in Rhode Island and, thus, cannot reasonably expect to carry into Rhode
Island the protective laws of Michigan. The application of Rhode Island law would not offend
Michigan policy because Ford must foresee that Rhode Island, here, would apply its ownlaw.70
Scott v.Ford Motor Co.,71 a California case presenting the same pattern and issues, reached
the same result, except that the court did not even agree that the state with the defendant-
affiliating contacts, Michigan, had an interest in applying its pro-defendant law. The plaintiff
was a California automobile-service station owner, who contracted mesothelioma after being
exposed to asbestos contained in brake linings that Ford manufactured in Michigan. The court
applied California law, which allowed punitive damages, rather than Michigan law, which
prohibitedthem.
The court rejected Fords argument that the unavailability of punitive damages in Michigan
was intended to protect Michigan defendants from excessive liability. The court pointed out
67. Id.at*2.
68. Id.at*5.
69. Id. at *6 (quoting S. Symeonides, Choice of Law for Products Liability:The 1990s and Beyond, 78 Tul.
L.Rev. 1247, 1269 (2004)).
70. Id. For a Florida case relying on Dodson to reach the same result, see Noel v.Ford Motor Co., No.
6:11cv370Orl28DAB, 2013 WL 1786637 (M.D. Fla. Apr. 26,2013).
71. 169 Cal. Rptr. 3d 823 (Cal. App.2014), as modified on denial of rehg (Apr. 23, 2014), review denied
(July 9,2014).
288
that Michigan courts have never articulated such an interest, and they have applied their law to
all defendants in Michigan courts, regardless of domicile.72 Even if Michigan had expressed an
intent to protect its resident businesses from punitive damages, the court explained, Michigan
would have no legitimate interest in imposing that intent in California.73 A company, such
as Ford, which conducts business in numerous states, ordinarily is required to make itself
aware of and comply with the law of a state in which it chooses to do business, and it cannot
carry with it the regulatory regime of its home-state.74 Consequently, the court concluded,
Michigan had no interest in shielding its resident corporations from punitive damages when
those corporations chose to do business in states permitting the imposition of such damages.75
The court also rejected Fords argument that Michigan had an interest in regulating the
legal consequences of conduct occurring within its borders, such as the design and manufacture of the product or the failure to warn in this case. The court pointed out that Michigan
never articulated this as a motive for banning punitive damages, and Michigan courts d[id]
not preclude punitive damages based on conduct occurring only within the state.76 In any
event, the court reasoned, if the states that allow punitive damages were to import Michigans
policy because the conduct underlying its failure to warn occurred in Michigan [by] a corporation domiciled in that state, Ford would effectively carry a nationwide shield from punitive
damage liability because the state in which it maintains its headquarters has decided punitive
damages are poor public policy.77 Although Michigan ha[d]the prerogative to establish a
uniform rule applicable to all enterprises that elect to do business there, Michigan ha[d] no
legitimate interest in imposing that policy decision on the courts of a sister state.78
After examining Michigan cases denying punitive damages, the court concluded that the
reason for the denial was the expression of a particular view of the appropriate role of the
courts in adjudicating civil disputes: to compensate, rather than to punish[,] a declaration
of public policy about the wisdom of granting punitive damages as a legal remedy for noncriminal conduct.79 That being so, the court concluded, Michigan had a strong interest in seeing its
view of the appropriate policy carried out in its own courts, but it had a minimal interest in
seeing the same policy implemented in the courts of California.80
72. See id. at 834 ([T]his is not an interest that has ever been articulated by Michigan courts. The
Michigan ban on punitive damages applies equally to all defendants, regardless of their state of domicile.
As a result, Michigan-domiciled defendants are provided no more protection from punitive damages in
Michigan courts than persons and corporations resident elsewhere.).
73. Id. at835.
74. Id. (quotation marks omitted).
75. Id. 83536.
77. Id. at834.
78. Id. In In re Air Crash Disaster at Washington, D.C. on January 13, 1982, 559 F. Supp. 333 (D.D.C.
1983), the court rejected a similar argument for applying the law of the manufacturers home state,
Washington, which prohibited punitive damages, by pointing out that, while Washington had chosen to
protect manufacturers at the expense of victims, the sovereignty of other states prevents [Washington]
from placing on the scales the rights of those injured elsewhere. Id. at359.
79. Scott, 169 Cal. Rptr. 3d at834.
80. Id. For another case rejecting Fords arguments and allowing punitive damages under the law of the
accident state, see Linert v.Foutz, 20 N.E.3d 1047 (Ohio App.2014) (applying Ohio law, which allowed
Products Liability
289
In Sanchez v.Boston Scientific Corp.,81 the court took the same position as Scott, in a case
involving a Massachusetts manufacturer of an implantable medical device and a California
plaintiff who suffered the injury in California. In rejecting the manufacturers argument in
favor of Massachusetts law, which prohibited punitive damages, the court acknowledged that
Massachusetts undeniably ha[d]an interest in crafting economic policies that benefit its residents and encourage corporations to relocate there [by] shielding corporations from liability for harms occurring in Massachusetts.82 But the court concluded that Massachusetts had
no legitimate interest in shielding [the defendant] from punitive damages liability for injuries
occurring in California.83
Cases involving issues other than punitive damages have also reached the same result, by
applying the pro-plaintiff law of a state that had all three plaintiff-affiliating contacts.84 Custom
Products, Inc. v.Fluor Daniel Canada, Inc.85 is noteworthy because, although decided in a state
that follows a lex fori approach, it did not apply the law of the forum, which favored a local
manufacturer. The case also illustrates the strategy that many manufacturers now employ in
hopes of taking advantage of choice-of-law approaches that favor the lex fori. Rather than waiting to be sued for injuries their products caused, manufacturers strike first by filing actions
for declaratory judgments in a favorable forum. In Custom Products, the forum was Kentucky,
which no doubt prefers the application of its own laws over those of another forum,86
and it applies forum law whenever the forum has significant contactsnot necessarily the
most significant contacts.87 In this case, those contacts were the products manufacture and
punitive damages, in a case involving a Ford car that was manufactured in Michigan, sold in Ohio, and
caused injuries in Ohio to an Ohio police officer).
81. 38 F.Supp.3d 727 (S.D. W.Va. 2014)(decided under California conflictslaw).
82. Id. at741.
83. Id. See also id. at 741 (stating that Massachusetts had no legitimate interest in enforcing this policy
outside of its borders.).
84. See, e.g., Savage Arms, Inc. v.W. Auto Supply Co., 18P.3d 49 (Alaska 2001)(successor-liability conflict resolved under the Restatement (Second); applying the pro-plaintiff law of Alaska, which was the
victims domicile, place of injury, and the products acquisition); Hoover v. Recreation Equip. Corp., 792
F.Supp.1484 (N.D. Ohio 1991)(decided under the Restatement (Second); applying Ohio law to both products liability and successor liability claims by an Ohio resident, injured in that state by a slide manufactured
in Indiana by an Indiana corporation, which was acquired by another Indiana corporation; concluding that
Ohio had both a closer relationship and a greater interest than Indiana); Nelson v.Sandoz Pharm. Corp., 288
F.3d 954 (7th Cir. 2002)(decided under New Jersey conflicts law; applying Indianas pro-plaintiff discovery
rule to Indiana plaintiff s action against New Jersey manufacturer for injury caused in Indiana by a product
acquired there); Eimers v.Honda Motor Co., Ltd., 785 F.Supp.1204 (W.D. Pa. 1992)(applying NewYorks
pro-plaintiff law to an action by a NewYork plaintiff injured in NewYork by a motorcycle acquired in that
state and manufactured by a Japanese defendant in Japan); see also Tune v.Philip Morris, Inc., 766 So. 2d
350 (Fla. App.2000) (applying Floridas pro-plaintiff law to an action filed against a tobacco manufacturer
by a Florida domiciliary, who was diagnosed with lung cancer in that state after using tobacco products in
Florida and New Jersey, his previous domicile); In re Masonite Corp. Hardboard Siding Prod. Liab. Litig.,
21 F.Supp.2d 593 (E.D. La. 1998)(decided under Floridas Restatement (Second) approach; noting Floridas
strong interest in applying its law to protect its citizens from building materials, which could not withstand
that states extreme weather conditions, and which were sold and used in that state).
85. 262 F.Supp.2d 767 (W.D. Ky.2003).
86. Rutherford v.Goodyear Tire & Rubber Co., 943 F.Supp.789, 792 (W.D. Ky.1996).
87. Foster v.Leggett, 484 S.W.2d 827, 829 (Ky.1972).
290
the manufacturers principal place of business. The victims domicile, place of injury, and the
products acquisition were all in Canada, the law of which favored the victim. The court found
that Canada had an overwhelming interest88 and rejected the manufacturers arguments that
Kentucky had any significant interest or even significant contacts. The court noted that the
Kentucky manufacturer, although a nominal plaintiff, was not the injured party89 and was
[f]or all practical purposes90 the defendant. The court found no evidence that Kentuckys
law was intended to shield [such] a party when they cause injury in [another] jurisdiction,
and then seek to avoid paying damages,91 and it concluded that [t]he law of the forum cannot
merely always follow the products of Kentucky corporations whenever they may cause injury
in other jurisdictions.92
2. Choice Based onTwo Contacts

This section describes cases that applied the pro-plaintiff law of a state that had only two
rather than all threeplaintiff-affiliating contacts. In some of these cases, the defendant did
not invoke the law of the state with the defendant-affiliating contacts, but instead invoked the
pro-defendant law of the state that had one plaintiff-affiliating contact. Thus, the courts choice
was between the conflicting laws of states with plaintiff-affiliating contacts.
a. Plaintiffs Domicile andInjury

Table25. Cases Applying thePro-Plaintiff Law ofa Plaintiff-AffiliatedState
Pattern
Ps domicile
Injury
Acquisition
Manufacture
Ds PPB
22b. Direct conflict
Pro-P
Pro-P
Pro-D, or not
pleaded
Pro-D, or not
pleaded
Pro-D, or not
pleaded
In cases of this pattern (depicted in Table25), the victim is injured in his or her home-state by
a product acquired in another state. Depending on which laws the parties invoke, the courts
choice is between the pro-plaintiff law of the victims home-state and place of injury, on the
one hand, and, on the other hand, the pro-defendant law of either:(1)the state of the products
acquisition, or (2)the state with the defendant-affiliating contacts (place of manufacture and/
or the defendants principal place of business).
88. Custom Products, 262 F.Supp.2d at775.
89. Id. at773.
90. Id. at774.
91. Id. Noting that the Kentucky party beat [the Canadian party] to the courthouse door, id., the court
found that Kentucky had a greater interest in deterring the type of lawsuit which might seek a choice
of law advantage.Id.
92. Id. at775.
Products Liability
291
In Smith v. DaimlerChrysler Corp.,93 the choice was between the pro-

plaintiff law of
Delaware, which was the plaintiff s home-state and place of injury, and the pro-defendant
law of Maryland, the state in which the plaintiff bought the product, a car. The court applied
Delawares pro-plaintiff law to the plaintiff s action against the Maryland car dealer and the
Michigan manufacturer. The court took note of the fact that the Maryland defendant, who was
located a few miles from the Delaware line, knowingly sold the product to a Delaware domiciliary, and [could] not reasonably expect to be subject only to the laws of Maryland.94 In
Allstate Insurance Co. v.Wal-Mart,95 the court applied Louisianas pro-plaintiff law to an action
of a Louisiana plaintiff, injured in Louisiana by a product acquired in Oklahoma and manufactured in Minnesota by a Minnesota manufacturer. In Fisher v. Professional Compounding
Centers of America, Inc.,96 the court applied Nevadas pro-plaintiff law to the action of a Utah
domiciliary who bought and used a diet drug in Utah and then moved to Nevada, where she
suffered the injury.97
b.Injury and Product Acquisition

In cases of this pattern (depicted in Table 26), a person domiciled in one state is injured in
another state by a product acquired in the latter state. Depending on which laws the parties
invoke, the courts choice is between the pro-plaintiff law of the state of injury and place of
acquisition, on the one hand, and, on the other hand, the pro-defendant law of either:(1)the
victims home-state, or (2)the state with the defendant-affiliating contacts (place of manufacture and/or the defendants principal place of business).

Pattern
Ps domicile
Injury
Acquisition
Manufacture
Ds PPB
22c. Direct conflict
Pro-D, or not
pleaded
Pro-P
Pro-P
Pro-D, or not
pleaded
Pro-D, or not
pleaded
93. 2002 WL 31814534 (Del. Super. Nov. 20,2002).

94. Id.at*1.
95. 2000 WL 388844 (E.D. La. Apr. 13,2000).
96. 311 F.Supp.2d 1008 (D. Nev.2004).
97. The product was manufactured in Italy by an Italian defendant. See also R-Square Inves. v.Teledyne
Indus., Inc., 1997 WL 436245 (E.D. La. July 31, 1997)(applying Louisianas pro-plaintiff law to an action
of a Louisiana plaintiff, injured in Louisiana by a product acquired in Minnesota and manufactured in
Alabama by an Alabama manufacturer); Goede v.Aerojet Gen. Corp., 143 S.W.3d 14 (Mo. App.2004),
transfer denied (Sept. 28, 2004)(applying Missouris pro-plaintiff compensatory damages law to asbestosis
action by Missouri woman, whose father was exposed to asbestos in California).
292
Roll v.Tracor, Inc.98 is one of several cases that applied the pro-plaintiff law of a state that
was the place of injury and the products acquisition, but not the plaintiff s domicile.99 In Roll,
the plaintiff, a NewYork soldier, was injured at a military base in Nevada by countermeasure
flares acquired by the base authorities in Nevada and manufactured in Texas. The laws of these
states differed on the issue of corporate successor liability, with Nevada and New York laws
favoring the plaintiff and Texas law favoring the defendant. The court noted that Texas had
an interest in applying its rule of successor non-liability, because both the defendant and its
predecessor corporation had their principal place of business in Texas. However, New York
had an equal interest in applying its successor-liability rule to provide a remedy to its injured
domiciliary, and Nevada had a parallel interest in applying its successor-liability rule to provide
a remedy to a person injured within its borders. After characterizing the successor-liability
issue as one pertaining to loss-allocation, rather than conduct-regulation, the court concluded
that, under Neumeier Rule 3, Nevada law presumptively governed, and found that the defendant did not rebut this presumption. The occurrence of the injury in Nevada was not fortuitous
and Nevadas contacts were not insignificant. The plaintiff was stationed in Nevada for some
time and, more important, the defendants products were used in Nevadas multiple military
bases for many years, thus making foreseeable the occurrence of the injury in that state and the
application of its law. The court reasoned:
It would be unreasonable for [defendant] to expect that Texas law would automatically shield it
from successor liability in every state of the Union. It would be unjust to allow a corporation to
escape liability and leave potential plaintiffs without a remedy by simply giving itself a reorganizational facelift, and at the same time carry on the same business and manufacture the same
product while using the same name, the same plant, and the same personnel.100
In Duchesneau v. Cornell University,101 the plaintiff was a Pennsylvania domiciliary, who

was injured in NewYork while using gymnastics equipment on the campus of the university
he attended. He filed a products liability action in Pennsylvania against the Michigan manufacturer. The court rejected the defendants argument for applying Michigan law, which unsurprisingly prohibited punitive damages, and instead it applied New York law, which allowed
them, reasoning that NewYork had many compelling interests.102
98. 140 F.Supp.2d 1073 (D. Nev. 2001). This action, which was originally filed in NewYork and then
transferred to Nevada, was decided under NewYork conflictslaw.
99. For another example, see Johnson v.Ranch Steamboat Condominium Assn, 1999 WL 184068 (N.D.
Ill. 1999). AKansas domiciliary was injured in Colorado by a product acquired in Colorado and manufactured in Illinois. Colorado law favored the plaintiff, and Illinois law favored the defendant. Following
the Restatement (Second), the court acknowledged Illinoiss interest in protecting Illinois corporations
that manufacture products in that state, but it concluded that Colorados interest in protecting consumers
injured in that state, by products sold there, was more compelling.
100. Roll, 104 F.Supp.2d at1083.
101. 2012 WL 3104428 (E.D. Pa. July 31,2012).
102. Id.at*4.
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293
c. Plaintiffs Domicile and Product Acquisition

another state by a product acquired in his or her home-state. Depending on which laws the
parties invoke, the courts choice is between the pro-plaintiff law of the victims home-state
and place of acquisition, on the one hand, and, on the other hand, the pro-defendant law of
either:(1)the state of injury, (2)the state with the defendant-affiliating contacts (place of manufacture and/or the defendants principal place of business).
Pattern
Ps domicile
Injury
Acquisition
Manufacture
Ds PPB
22d. Direct
conflict
Pro-P
Pro-D, or
not pleaded
Pro-P
Pro-D,or
not pleaded
Pro-D, or not
pleaded
Kramer v.Acton Toyota, Inc.103 is one of the cases that applied the pro-plaintiff law of a state
that was both the plaintiff s domicile and the place of the products acquisition, but not the
place of injury. The court found that the victims home-state and place of acquisition had a
strong interest in the manner in which its residents are compensated for injuries sustained as
a result of allegedly faulty products sold within its borders, regardless of where those products
ultimately failed.104 In contrast, the state of injury had no significant interest in allocating
responsibility for injuries, suffered by [non-residents] caused by a product purchased
in [another state].105
In Rosenthal v.Ford Motor Co., Inc.,106 the court found that Connecticut had the most significant relationship, because the product was first sold to a consumer there, and because the
103.18 Mass. L. Rptr. 457, 2004 WL 2697284 (Mass. Super. Nov. 2, 2004). This case arose out of
a Connecticut accident involving a Japanese-made car that the victim bought in his home-state of
Massachusetts. The dispute centered on the victims contributory negligence, and the discussion was limited to the laws of Massachusetts (pro-plaintiff) and Connecticut (pro-defendant). Following the forums
functional approach, but also relying on the Restatement (Second), the court applied Massachusettslaw.
104. 2004 WL 2697284at*3.
105. Id. For another case reaching the same result, under the same circumstances, see Hoagland v.Ford
Motor Co., No. Civ.A. 06615C. 2007 WL 2789768 (W.D. Ky. Sept. 21, 2007) (applying Kentucky law
to an action filed by a Kentucky domiciliary injured in Indiana, while using a Ford car she purchased in
Kentucky; holding that, because the alleged injuries in this case were suffered by a Kentucky resident
driving a car purchased in Kentucky[,] the contacts with Kentucky are significant enough to justify
the application of Kentucky law. Id. at*4).
106. 462 F.Supp.2d 296 (D. Conn. 2006). The case arose out of a single-car, rollover accident in North
Carolina, involving a Ford Explorer equipped with Bridgestone-Firestone tires. The defendants were Ford,
a Michigan-based company, and Bridgestone-Firestone, a Tennessee-based company. The case did not
mention the state of manufacture, apparently because none of the parties invoked that states law. Instead,
both defendants argued for the application of North Carolina law, which did not recognize strict liability
in products cases, whereas the plaintiffs argued for the application of Connecticut law, which imposed
strict liability. Connecticuts connection was that the car and the tires were bought there by a Connecticut
294
central event upon which a products liability claim is normally based is the sale of the goods.107
Injured parties expect that the law of the place of sale should govern with respect to injuries
caused by those defects, said the court, and Connecticut had a strong interest in vindicating rights it created in connection with this transaction and in [deterring] the sale of
negligently or defectively manufactured goods.108 In contrast, the state of the injury, North
Carolina, had no interest in having its [pro-defendant law] enforced by a Connecticut court to
protect defendants, who are not North Carolina corporations, against plaintiffs, who are currently all non-North Carolina residents.109
Banuelos Rios v.Ford Motor Co.110 was an action filed against Ford by Mexican-born Oregon
domiciliaries, who were injured in an accident in Mexico involving a Ford car manufactured in
Michigan and sold to plaintiffs in Oregon. The court rejected Fords arguments in favor of the
application of Mexican law, reasoning as follows:
Oregon has a strong interest in ensuring the rights of all persons residing in this state, even those
born elsewhere, and in protecting the interests of the surviving children who reside here. The
accident may have occurred in Mexico, but the harm will be felt principally here in Oregon.
If, as the Complaint alleges, the accident resulted from a design defect, then the vehicle was an
accident waiting to happen. That the defect manifested itself while Plaintiffs were vacationing
in Mexicoand not in Oregon where Plaintiffs resided, and where the vehicle was purchased,
maintained, insured, and usually drivenwould be a mere fortuity. The subject vehicle was
designed, built, and sold in the United States. Defendant could certainly anticipate being subject
to American tort law standards of care and liability, and to American measures of damages.111
Even cases decided in states following the lex loci delicti rule have reached the same result.
For example, in Etheredge v.Genie Industries, Inc.,112 the Alabama Supreme Court found a way
to avoid the pro-defendant statute of repose of the locus state by characterizing it as procedural, thus freeing the court to apply Alabamas statute of limitation allowing the action.113
In Alexander v. General Motors Corp.,114 the Georgia Supreme Court used the ordre public
domiciliary, who, after using the car in Connecticut for a few years, loaned it to his daughter and son-in-
law, who were then domiciled in North Carolina. The son-in-law was killed while driving the car in North
Carolina. His wife, the plaintiff, returned to Connecticut and filed the action there after re-establishing
domicile in thatstate.
107. Id. at 305 (internal quotations omitted).
108. Id.
109. Id. at306.
110. 2006 WL 2950474 (D. Or. Oct 16,2006).
111. Id. at **12. For another case reaching the same result, see Mann v.Cooper Tire Co., 761 N.Y.S.2d
635 (N.Y.A.D. 2003)(applying NewYorks pro-plaintiff law to a case arising from a Qubec traffic accident caused by a car tire manufactured in Georgia and installed on a car in NewYork).
112. 632 So. 2d 1324 (Ala.1994).
113.In Etheredge, the plaintiff s domicile and place of acquisition were in Alabama, which had a statute
of limitation favoring the plaintiff, whereas the place of injury was in North Carolina, which had a statute
of repose favoring the defendant. The opinion did not disclose the place of manufacture and the defendants principal place of business.
114. 478 S.E.2d 123 (Ga.1996).
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295
exception as the device for avoiding the pro-defendant negligence rule of the locus state of
Virginia. This freed the court to apply the pro-plaintiff, strict-liability rule of Georgia, which
was also the plaintiff s domicile and the place where he bought the car involved in the Virginia
accident.115
3. Choice Based ona Single Contact

This section discusses cases that applied the pro-plaintiff law of a state that had only one
plaintiff-affiliating contact. In these cases, the courts choice was between the law of that state
and the pro-defendant law of a state that had either the defendant-affiliated contacts or the
other plaintiff-affiliating contacts.
a. Place ofInjury
Ordinarily, states that continue to follow the lex loci delicti rule have no qualms about applying
the law of a state whose only contact is the occurrence of the injury.116 But even states that have
abandoned that rule occasionally apply the law of that state in certain cases. One of them was
Apple v.Ford Motor Co.,117 which was decided under Pennsylvanias mixed approach. The case
arose out of an accident in Pennsylvania, but that state had no other contacts. The product in
question was a car that defendant Ford, a Michigan-based company, had designed and manufactured in Michigan (a state that did not allow punitive damages). Coincidentally, the victim
was also a Michigan domiciliary, who had driven the car to Pennsylvania for a short visit. The
court concluded that neither the victims status as a nonresident, nor the fact that he shared
a Michigan affiliation with the defendant, detracted from Pennsylvanias interest in applying
its punitive-damages rule. The court reasoned that the purpose and policy of that rule was
to protect Pennsylvania residents and visitors to the state by deterring manufacturers from
manufacturing products which may enter Pennsylvania that are defective and dangerous, and
that this policy was equally furthered by awarding punitive damages to [a]plaintiff who is a
Pennsylvania resident and to the plaintiff who is a resident of another state.118
115. Adissenting judge in the court of appeals offered affirmative and more realistic reasons for applying Georgia law. He reasoned that Georgia had an interest in protecting Georgia consumers, who acquire
products in Georgia that are marketed in that state. Because the defendant had made the car available for
sale there, Georgias policy of placing the burden on the manufacturer who markets a new product to
take responsibility for injury to members of the consuming public for whose use and/or consumption the
product is made was implicated in this case, even though the actual injury had fortuitously occurred in
Virginia. Alexander v.Gen. Motors Corp., 466 S.E.2d 607, 613 (Ga. App.1995) (McMurray, J., dissenting).
116. See, e.g., Fitts v.Minn. Mining. & Mfg. Co., 581 So. 2d 819 (Ala.1991).
117. 2004 WL 3218425 (Pa. Commw. Ct. Nov. 18,2004).
118. Id. at *1. For similar cases reaching the same result, see Harsh v.Petroll, 840 A.2d 404 (Pa. Cmmw.
Ct. 2003)(applying Pennsylvanias pro-plaintiff law to wrongful death actions filed on behalf of Virginia
domiciliaries, who were killed in Pennsylvania in a car purchased in Virginia and manufactured by a
Michigan defendant in Michigan); Stanley v.Cottrell, Inc., No. 4:10CV1505 HEA, 2013 WL 466232 (E.D.
Mo. Feb. 7, 2013)(applying Missouri pro-plaintiff law, because the defendant did not show that another
state had a more significant relationship).
296
Similarly, in Martin v. Goodyear Tire & Rubber Co.,119 a Washington court applied
Washingtons pro-plaintiff law in a case in which Washingtons only contact was the occurrence of the injury. An Oregon domiciliary was killed in Washington when struck by a metal
ring that flew off a truck driven by another Oregon domiciliary unrelated to the victim. The
ring was part of a wheel assembly that the truck driver purchased and installed on his truck in
Oregon. Oregons, but not Washingtons, statute of repose barred the plaintiff s action against
the manufacturer of the assembly. Noting that the Oregon statute was intended to protect
Oregon defendants, the court concluded that Washingtons interest in protecting persons from
injuries from defective products within its borders outweighs Oregons interest in protecting
a [non-Oregon] manufacturer whose product arrives in Oregon through the stream of commerce and subsequently causes injury to a third party in another state.120
b. Product Acquisition
Sanchez v.Brownsville Sports Ctr., Inc.121 and Long v.Sears Roebuck & Co.122 applied the pro-
plaintiff law of a state whose only contact was that the product was purchased there. However,
in both of these cases, the parties did not plead the laws of the defendant-affiliated states;
instead, they invoked the pro-defendant law of a state that was the plaintiff s domicile and the
place of injury.
In Sanchez, the product in question, an all-terrain vehicle (ATV), was manufactured by the
Japanese defendant in Japan and was sold through a Texas dealer, and then it resold second-
hand to plaintiff in Mexico, nine years later. The plaintiff s child was killed while driving the
vehicle in Mexico. The defendant argued for the application of Mexican law, which limited the
amount of damages and favored the defendant in other respects, while the plaintiff invoked
the law of Texas, which provided for strict liability and more generous compensatory damages. Following Sections 145 and 6 of the Restatement (Second), the court held that Texas law
should govern. The court noted that Mexican law balances the need to provide relief to its
citizens with the countrys need to stimulate commerce by limiting the plaintiff s recovery.123
The court implicitly concluded that Mexicos interests were weak as compared to Texass interests, resulting from the fact that Texas was the place where the particular product was first
introduced into the stream of commerce. The court reasoned that, by adopting strict products
liability laws, Texas expressed a clear interest in protecting its consumers and in regulating
the quality of products in its stream of commerce.124 Although the ATV eventually ended up
in Mexico, the key factor is that the ATV was originally placed in the stream of commerce in
Texas, and thus Texas had a strong interest in regulating the conduct of corporations that have
business operations in the state.125 The court noted that [t]he expansive Texas system of tort
liability for defective products serves as an incentive to encourage safer design and to induce
119. 61P.3d 1196 (Wash. App.2003), review denied, 149 Wash. 2d 1033 (Sept. 5,2003).
120. 61P.3d at1201.
121. 51 S.W.3d 643 (Tex. App.2001).
122. 877 F.Supp.8 (D.D.C.1995).
123. Id. at670.
124. Id. at 66970.
125. Id. at670.
Products Liability
297
corporations to control more carefully their manufacturing processes, and it concluded that
this Texas interest would be furthered by the application of Texas law.126
Long v. Sears Roebuck & Co.127 involved the same pattern and reached the same result.
However, the case also involved the issue of punitive damages, which makes for a much sharper
conflict. In Long, the plaintiff was injured in his home-state of Maryland by a lawn mower he
bought from defendant in the District of Columbia. As in Sanchez, the defendant invoked the
pro-defendant law of the state of injury, Maryland, but not the law of the state of manufacture,
South Carolina. The court concluded that Maryland law, which limited non-economic damages and did not allow punitive damages, was not intended to protect foreign defendants who
did not conduct business in Maryland, or engaged in conduct there. In contrast, said the court,
the District of Columbia had an interest in deterring and punishingthrough its unlimited
compensatory and punitive damagesdefendants who engage in reprehensible conduct in the
District by selling unsafe products there and misrepresenting their safety features.
c. Plaintiffs Domicile
A handful of cases applied the pro-recovery law of the state of the victims domicile when that
state did not have any other contacts. Because in all but one128 of these cases that state was
also the forum state, one could ascribe protectionist motives to the courts that decided them.
Acloser examination, however, finds additional reasons justifying the results in most of these
cases. For example, in Huddy v.Fruehauf Corp.,129 four of the five involved states (except for the
defendants principal place of business) had a pro-plaintiff law.130 Similarly, in most of the other
cases, the defendant did not plead the law of the state (or states) with the defendant-affiliating
contacts.131 Thus, the courts choices were confined to the laws of the victims home-state, on
126. Id.
127. 877 F.Supp.8 (D.D.C.1995).
128.In MacDonald v.General Motors Corp., 110 F.3d 337 (6th Cir. 1997)(decided under Tennessees conflicts law), the victims domicile was not in the forum state. MacDonald was a wrongful death action, arising from a Tennessee traffic accident caused by a brake defect in a van that GM manufactured in Michigan
and sold in Kansas to the University of Kansas. The victim was a student from North Dakota, who was
a passenger in the van. The law of Kansas, but not North Dakota, limited the amount of wrongful-death
damages. Neither party argued for the application of the laws of Tennessee or Michigan, and the court
found the contacts of those states to be inconsequential. The court concluded that, as the domicile of the
victim and the plaintiffs, North Dakota had the most significant relationship to the measure of damages,
id. at 344, and that its pro-plaintiff law reflected a strong interest in assuring that next of kin are fully
compensated for the tortious death of its domiciliaries. Id. at 345. The court acknowledged that Kansass
ceiling on damages reflected an interest in protecting defendants from excessive jury verdicts, but it concluded that this interest was not sufficiently compelling and that applying the Kansas statute would frustrate North Dakotas policy of fully compensating its domiciliaries for their injuries.Id.
129. 953 F.2d 955 (5th Cir.1992).
130. The plaintiff was a former Texas domiciliary, who was injured in Georgia while driving a car purchased by his employer in Tennessee. The defendant invoked the pro-defendant negligence law of its
principal place of business, Michigan, but the product in question was manufactured in Pennsylvania, the
law of which favored the plaintiff, as did the law of all the other involved states. The court concluded that
this was an insufficient reason to apply Michigan law and applied Texass pro-plaintiff strict-liabilitylaw.
131.In Johnson v.Ford Motor Co., Inc., 2003 WL 22317425 (N.D. Ill. 2003), the defendant invoked the
law of the state of manufacture, Kentucky, which by coincidence was also the state of injury. The plaintiffs,
298
the one hand, and, on the other hand, a state that was the place of injury,132 or the place of the
products acquisition,133 or a state that had both of these latter contacts.134
In contrast to the above-cases, Phillips v. General Motors Corp.135 is difficult to defend.136
Phillips was an action by the survivors of a Montana family who perished in an accident in
Kansas, while on a trip from their home-state of Montana to North Carolina, when their car
Illinois residents, were injured in Kentucky, while returning from Florida to Illinois in a car they rented
in Illinois. The court reasoned that, because of the fortuity of the accidents locale, the fact that Kentucky
had two contacts with the case did not give it any greater interest in applying its law on compensatory
damages than the plaintiffs home-state, which would bear the social consequences of non-recovery. It
cannot be reasonably inferred, said the court, that Ford chose to manufacture in Kentucky to obtain the
benefits of Kentucky tort laws. Id. at *3. The court held that Illinoiss pro-plaintiff law would govern loss-
distribution and that Kentucky law should govern issues of conduct-regulationspecifically whether the
plaintiffs failure to wear seat belts would reduce their recovery.
132. See Pollack v.Bridgestone/Firestone, Inc., 939 F.Supp.151 (D. Conn. 1996)(applying Connecticuts
pro-plaintiff liability law to an injury suffered by a Connecticut domiciliary in an Ohio accident caused
by a tire manufactured in Illinois by an Ohio corporation); Calhoun v.Yamaha Motor Corp., U.S.A., 216
F.3d 338 (3d Cir. 2000), cert. denied, 531 U.S. 1037 (2000) (decided under Pennsylvania conflicts law;
applying Pennsylvanias pro-plaintiff law to issues of comparative negligence and compensatory damages
to an action by Pennsylvania plaintiffs for injury sustained in Puerto Rico, while using a rented Japanese-
made watercraft; also holding that plaintiffs claims for punitive damages were governed by Puerto Rico
law, which did not allow such damages); Ford Motor Co. v. Aguiniga, 9 S.W.3d 252 (Tex. App. 1999)
(applying Texass unlimited compensatory damages law to an action by Texas domiciliaries, arising from
an accident in Mexico involving a car acquired by plaintiffs in Louisiana and inspected in Texas). See
also Hensley v. United States, 728 F. Supp. 716 (S.D. Fla. 1989) (Federal Tort Claims Act case decided
under the whole law of NewYork as the place of the negligent omission; applying the substantive law of
Florida, as the state of the greatest interest, to a crash of a small airplane in New Jersey caused in part by
negligent omission of the air traffic controllers in NewYork and killing its Florida passengers).
133. See, e.g., MacDonald v.Gen. Motors Corp., 110 F.3d 337 (6th Cir. 1997), discussed supra note128.
134.In Danielson v.National Supply Co., 670 N.W.2d 1 (Minn. App.2003), the laws of both the state of
injury (Arizona) and the state of acquisition (Texas) favored the defendant retailer, but their connections
with the case were rather transient. The plaintiff, a Minnesota domiciliary, was injured during his vacation in Arizona, while using a stepladder that he bought for his motor home while driving through Texas.
At issue was the timeliness of the plaintiff s action, which was barred by the statutes of limitation in Texas
and Arizona, but allowed by Minnesotas statute. The court held that the Minnesota statute should govern,
either because it was procedural, or because Minnesota had a greater interest in providing a forum to its
injured domiciliary than the other two states had in avoiding litigation of stale claims.
135. 995P.2d 1002 (Mont.2000).
136. La Plante v.Am. Honda Motor Co., Inc., 27 F.3d 731 (1st Cir. 1994), which applied the law of the
plaintiff s domicile under Rhode Islands better-law approach, belongs in the same category. In this case, a
Rhode Island domiciliary, who was stationed in Colorado, was injured in Colorado by a Honda all-terrain
vehicle (ATV), which he purchased in that state. The defendant, a Japanese company that designed and
manufactured the vehicle in Japan, invoked the law of Colorado, which, unlike Rhode Island, limited
compensatory damages to $250,000. The court assumed that the purpose of this limit was to increase
the affordability and availability of insurance by making the risk of insured entities more predictable
[and] to improve the predictability of risks faced by insurance companies. Id. at 743. However, said
the court, [t]he concern of an insurance company is the risk associated with insuring each individual
insured, not with denying an injured person damages that may be paid by another insurance company or
person. Id. The court concluded there was no reason why the Colorado legislature would be concerned
with the affordability of insurance to a multinational Japanese corporation. Id. After noting that defendant sold its products in all fifty states, the court observed that Colorados damages law plays, at best, an
Products Liability
299
exploded upon colliding with another car. The defendant General Motors (GM), a Michigan-
based corporation, manufactured the car in Michigan and sold it in North Carolina, where one
of the victims purchased it while domiciled there. The defendant invoked the law of Kansas,
which had a statute of repose barring the action, allowed certain defenses not available to
manufacturers elsewhere, and limited the amount of compensatory and punitive damages. The
plaintiffs invoked the law of Montana, which had no statute of repose, disallowed the manufacturers defenses, and imposed no limits on compensatory or punitive damages.
The court held that Montana had a more significant relationship and that its law should govern
all issues of liability and damages. The court found that the purpose of Kansass products liability
law was to regulate the sale of products in that state and to prevent injuries incurred by that states
residents due to defective products, and that this purpose could not be implicated by the facts
of this case as it involves neither a sale in Kansas nor an injury to a Kansas resident.137 The court
followed the same rationale even with regard to those rules of Kansas law that protected the manufacturer (such as its statute of repose or the state-of-the art defense), and it concluded that these
rules were not enacted in order to grant a defense to a manufacturer when a non-Kansas resident
is injured by a product not purchased in Kansas.138 The court also reasoned that the purpose of
Kansass limitations on the amount of wrongful-death damages was to alleviate a perceived crisis
in the availability and affordability of liability insurance.139 Thus, it concluded that Kansas had no
interest in insisting on those limitations, because no Kansas residents were involved in thiscase.
Finally, regarding punitive damages, the court focused more on the fact that Kansass law
allowed such damages, rather than on the fact that it limited their amount. The court concluded that Kansas did not have an interest in deterring the manufacturer, because its conduct did not occur in Kansas. The conduct occurred in Michigan, where GM manufactured
the car, and North Carolina, where the car was introduced into the market. However, using
a renvoi-type syllogism, the court concluded that North Carolina had no claim to apply its
law, because, under the lex loci rule followed in that state, a North Carolina court would have
applied Kansass law. Thus, said the court, any expectation General Motors had that the law of
North Carolina would govern would not be justified.140
The court used a similar renvoi syllogism to discount Michigans interest by relying on
a similar case in which a Michigan court held that Michigan had little interest in applying
its law when its only contact with the dispute is the location of the manufacturer.141 Even
insignificant role in setting [defendants] insurance rates and that defendant had not ceased doing business in any state because of a failure by that state to limit the amount of damages a plaintiff may recover.
Id. Consequently, the court applied Rhode Islandlaw.
137. Phillips, 995P.2d at1009.
138. Id. at 100910. The court disposed in a similar manner of defendants argument regarding plaintiff s
contributory negligence, which would have reduced plaintiff s recovery under Kansas law. While noting
that the record contained no evidence of plaintiff s contributory negligence, or where such negligence
occurred, the court concluded that Kansass comparative negligence rule was loss-allocating, rather than
conduct-regulating, and that Kansas had no interest in allocating responsibility for the injuries suffered
by Montana residents and caused by a product purchased in North Carolina. Id. at1010.
139. Id.
140. Id. at1013.
141. Id. at 1011 (citing Farrell v. Ford Motor Co., 501 N.W.2d 567 (Mich. App. 1993), appeal denied, 519
N.W.2d 158 (Mich. 1994)). Farrell is discussed infra at 315n.248. Although it is true that some Michigan cases
300
if Michigan had such an interest, the court reasoned, Michigan law should not be applied,
because its application would tend to leave victims under compensated as states wishing to
attract and hold manufacturing companies would raise the threshold of liability and reduce
compensation.142 This would allow a state with a high concentration of industryto
capture all of the benefits of a high threshold of liability and a low level of compensation . . . by
attract[ing] and retain[ing] manufacturing firms . . . within its borders while placing the costs of
its legislative decision, in the form of less tort compensation, on the shoulders of nonresidents
injured by its manufacturers products.143
This, said the court, seems inherently unfair.144

Thus, after discounting the interests of the state of the injury, as well as those of the defendants home-state and place of conduct, the court considered the interests of the victims home-
state, Montana, the law of which favored the victims on liability, as well as compensatory and
punitive damages. The court held that Montanas interests predominated in all respects. After
noting that Montana adopted a strict liability standard, in order to afford maximum protection for consumers against dangerous defects in manufactured products with the focus on
the condition of the product, and not on the manufacturers conduct or knowledge,145 the
court stated that the focus of Montana law is not only on the regulation of products sold
in Montana, but also on providing the maximum protection and compensation to Montana
residents.146 The court reasoned that, because the victims in this case were Montana residents,
the application of Montanas law of strict liability and full-compensation would further the
purposes of Montana law by insuring that the costs to Montana residents due to injuries from
defective products are fully borne by the responsible parties, and it would have the salutary
effect of deterring future sales of defective products in Montana and encouraging manufacturers to warn Montana residents about defects in their products as quickly and as thoroughly as
possible.147 The court reasoned that the application of Montanas punitive-damages law would
serve the same policy of deterrence, because punitive damages serve to punish and deter conduct deemed wrongfulin this case, placing a defective product into the stream of commerce
have reached this result, see, e.g., Hall v.Gen. Motors Corp., 582 N.W.2d 866 (Mich. App.1998) (discussed
infra at 31516; applying North Carolinas pro-manufacturer law, rather than Michigans pro-plaintiff law, to a
product liability action filed by a North Carolina victim against General Motors, which manufactured the car
in Michigan), other cases reached the opposite result. See, e.g., Mahne v.Ford Motor Co., 900 F.2d 83 (6th. Cir.
1990), cert. denied, 498 U.S. 941 (1990) (discussed infra at 306; applying Michigans pro-plaintiff law, rather
than Floridas pro-manufacturer law, to a products liability action of a Florida domiciliary, who was injured
in an accident in Florida). Moreover, in the Michigan cases that did not apply Michigan law, Michigan law
favored a foreign victim at the expense of a Michigan manufacturer. Thus, those cases did not present the
converse and more difficult true-conflicts between the pro-plaintiff law of the plaintiff s home state and the
pro-manufacturer law of the state of manufacture.
142. Phillips, 995P.2d at 101112.
143. Id. at1012.
144. Id.
145. Id. (internal quotation marks and emphasis omitted).
146. Id.
147. Id.
Products Liability
301
which subsequently injured a Montana resident.148 Thus, the court concluded, Montana had a
more significant relationship than Kansas, and this displaced the lex loci presumption.
One is hard-pressed to defend Phillips, at least to the extent it imposed punitive damages
beyond the limits of Kansass law. On the other hand, the application of Montana law to liability and compensatory damages is more understandable:besides the equities of the case (a
whole family perishing with only one minor child surviving), the five contacts were spread out
through four states, the occurrence of the injury in Kansas was fortuitous, and the product,
though purchased in North Carolina, was commercially available throughout the United States,
including Montana. Even so, most cases involving a pattern similar to Phillips did not apply
the pro-plaintiff law of the victims home-stateinstead, they applied the pro-defendant law of
another state. However, in contrast to Phillips, that other state had two contactsthe place of
injury and the place of the products acquisition.149
I I I . I N V E R S E C O NF L I CT S : CA S ES
I N W H I C H E A C H S TAT E S L AW
FAV O R S A L I T I GA NT A F F I L I AT ED
W I T H T H E OT HER S TAT E
In many cases (more than one would expect), a state with defendant-affiliating contacts (such
as the place of manufacture and/or the defendants principal place of business) has a law that
favors recovery against that defendant, while a state with victim-affiliating contacts (victims
domicile, place of injury, and place of acquisition) has a law that denies recovery to that victim.
According to Currie, these are the unprovided-for cases, in which neither state is interested
in applying its law, and which should be resolved by resort to the law of the forum qua forum.
As the discussion below illustrates, many of these cases have in fact applied the law of the
forum, but not on this basis. Moreover, very few of these cases have accepted Curries assumption that a state with a law that disfavors the local litigant necessarily has no interest in applying it.150 For example, in cases that applied the pro-recovery law of a defendant-affiliated state,
the courts have done so on the basis of an affirmative policy of deterring the manufacture of
148. Id.
149. See, e.g., LeJeune v.BlissSalem, Inc., 85 F.3d 1069 (3d Cir. 1996); Cianfrani v.KalmarAC Handling
Sys., Inc., 1995 WL 563289 (D.N.J. 1995); Romani v.Cramer, Inc., 992 F.Supp.74 (D. Mass. 1998); Allison
v. ITE Imperial Corp., 928 F.2d 137 (5th Cir. 1991); Tanges v. Heidelberg N. Am., Inc., 93 N.Y.2d 48,
710 N.E.2d 250 (N.Y. 1999); Calhoun v.Yamaha Motor Corp., U.S.A., 216 F.3d 338 (3d Cir. 2000), cert.
denied, 531 U.S. 1037 (2000); Schmidt v.DuoFast, Inc., 1995 WL 422681 (E.D. Pa. 1995). These cases are
discussed infra atnotes 319320.
150. Among these cases are: In re Eli Lilly & Co., Prozac Prod. Liab. Litig., 789 F. Supp. 1448, 1454
(S.D. Ind. 1992)(action by California residents injured in California by a drug acquired and used in that
state against an Indiana manufacturer, who manufactured the drug in Indiana; concluding that Indiana
would have no interest in the application of [its] more pro-plaintiff rule to cases in which plaintiffs
have no connection to Indiana and the Indiana connections all involve the business of the defendant.);
Rutherford v.Goodyear Tire & Rubber Co., 943 F.Supp.789 (W.D. Ky. 1996), aff d, 142 F.3d 436 (6th Cir.
1998)(discussed infra at 318); Mahne v.Ford Motor Co., 900 F.2d 83 (6th. Cir. 1990)(discussed infra at
____); Dabbs v.Silver Eagle Mfg. Co., 779P.2d 1104 (Or. App.1989) (discussed infra at 306).
302
substandard products, and they were unconcerned by the fact that the beneficiaries of such
application would be foreign victims.151 Similarly, in cases that applied the pro-defendant law
of a victim-affiliated state, the courts have done so either on the basis of a significant-contacts
analysis that did not encompass consideration of state interests,152 or on the basis of an assumption that the pro-defendant law of the victims state was not confined to local defendants, but
rather was intended to encompass foreign defendants as well.153
A. CASES APPLYING THEPRO-PLAINTIFF

LAW OFA DEFENDANT-AFFILIATEDSTATE
Among the cases that have applied the pro-recovery law of a defendant-affiliated state (depicted
in Table28), Gantes v.Kason Corp.154 is the most representative. Gantes was an action brought
by the survivors of a Georgia woman killed in Georgia, while working with a machine manufactured 13years earlier in New Jersey, by a New Jersey-based corporation. Georgias 10-year
statute of repose barred the action, which was timely under New Jerseys two-year statute of
limitations. Relying on a Georgia case, the New Jersey court noted that the Georgia statute
was designed to address problems generated by the open-ended liability of manufacturers so
as to stabilize products liability underwriting.155 Assuming that the Georgia statute was
intended only to unburden Georgia courts and to shield Georgia manufacturers,156 the court
concluded that Georgia had no interest in applying that statute, because the defendant was not
a Georgia manufacturer, and Georgia courts were not involved in this case. Plaintiffs Georgia
domicile brought into play Georgias general policy of fair compensation for injured domiciliaries[.]157 The Georgia statute subordinated that policy to the policy of protecting manufacturers, but only in those cases that involved Georgia manufacturers. Because the defendant in
this case was not a Georgia manufacturer, Georgia had no real interest in applying its statute.158
Table28. Cases Applying thePro-Plaintiff Law ofa Defendant-AffiliatedState
Pattern
Ps domicile
Injury
Acquisition
Manufacture
Ds PPB
23. Inverse conflict
Pro-D
Pro-D
Pro-D
Pro-P
Pro-P
151. See, e.g., Gantes v.Kason Corp., 679 A.2d 106 (N.J. 1996)(discussed infra at536).
152. See, e.g., Dorman v.Emerson Elec. Co., 23 F.3d 1354 (8th Cir. 1994), cert. denied, 513 U.S. 964 (1994)
(discussed infra at30910).
153. See, e.g., Hall v.Gen. Motors Corp., 582 N.W.2d 866 (Mich. App.1998) (discussed infra at31516).
154. 679 A.2d 106 (N.J.1996).
155. Id. at 109 (quoting Chrysler Corp. v.Batten, 450 S.E.2d 208, 212 (Ga. 1994)).
156. Id. at 11415.
157. Id. at115.
158. See also id. (concluding that the non-application of Georgia law [would] not undermine Georgias
interest in compensating its injured residents because that interest is not actually implicated or
Products Liability
303
In contrast, said the court, New Jersey had a cognizable and substantial interest in deterrence that would be furthered by the application of its statute of limitations.159 The court
described the policies embodied in that statute, which, because of a judicially engrafted discovery rule, is permeated by flexible, equitable considerations based on notions of fairness to the
parties and the justice in allowing claims to be resolved on their merits.160 The court also noted
that the goal of tort law in general, and products liability law in particular, is to encourage
reasonable conduct, and, conversely, to discourage conduct that creates an unreasonable risk of
injury to others.161 Because the machine that caused the fatal injury had been manufactured
in, and placed into the stream of commerce from, [New Jersey],162 the court concluded, New
Jersey had a strong interest in encouraging the manufacture and distribution of safe products
for the public and, conversely, in deterring the manufacture and distribution of unsafe products within the state.163 The court rejected the lower courts conclusion that the possibility of
unduly discouraging manufacturing in New Jersey outweighed this interest in deterrence.164
Thus, by reading the forums interests in a non-protectionist way, the court concluded that what
might have been a no-interest case under Curries analysis was in fact a false conflict, in which
only the forum was an interestedstate.
If Kelly165 is noteworthy for favoring a foreign manufacturer at the expense of a local victim, Gantes is noteworthy for favoring a foreign victim at the expense of a local manufacturer.
Of course, Gantes did so not for the sake of protecting the victim, but rather in pursuit of
the forums own policy of deterring the manufacture of substandard products within its territory. Although some commentators166 and some courts,167 including the U.S. Supreme Court in
compromised by allowing a products-liability action brought by Georgia residents to proceed against a

non-Georgia manufacturer.).
159. Id. at113.
160. Id. at110.
161. Id. at111.
162. Id.
163. Id. at 11112.
164.See id. at 112. The court also dismissed the forum-shopping argument, because, as shown by the
defendants contacts with the forum state, the plaintiff had legitimate reasons to suethere.
165. Kelly v.Ford Motor Co., 933 F.Supp.465 (E.D. Pa. 1996)(discussed supra at28081).
166. See, e.g., P.J. Kozyris, Values and Methods in Choice of Law for Product Liability:AComparative
Comment on Statutory Solutions, 38 Am. J.Comp. L. 475, 501 (1990) (stating that:(1)[the assumption]
that imposing the stricter standards of the state of production to the-out-of-state distribution and harm
may indirectly improve the in-state component as well is questionable in its logic of prohibiting
what should be lawful to deter what is unlawful; (2)[a]purported moral concern of the state of production about local activities which endanger people worldwide is [also] not persuasive; and, (3)[p]
referring the law of the state of production over those of distribution, harm and personal connections of
the parties would be inconsistent with considerations both of allocating sovereign authority and of fairness to the parties.).
167.See, e.g., Hall v. Gen. Motors Corp., 582 N.W.2d 866 (Mich. App. 1998) (discussed infra at 315
16); Farrell v.Ford Motor Co., 501 N.W.2d 567 (Mich. App.1993), app. denied, 519 N.W.2d 158 (Mich.
1994) (discussed at 315n.248, infra); Vestal v. Shiley Inc., 1997 WL 910373 (C.D. Cal. 1997) (noting
Californias interest in deterring California manufacturers from manufacturing defective products within
304
dictum,168 have questioned this policy, other courts have espoused it,169 including courts sitting
in a state with defendant-affiliated contacts.170 The following are some examples:
In Mitchell v. Lone Star Ammunition, Inc.,171 the court refused to apply the statute of
repose of the state of injury and allowed the action to proceed under Texas law, reasoning that Texas had a substantial interest in applying its pro-plaintiff law, as an incentive to encourage safer design and to induce corporations to control more carefully the
manufacturing processes.172
In McLennan v.American Eurocopter Corp.,173 the court refused to apply the negligence
law of the state of injuryinstead, it applied Texass strict product-liability law, reasoning that Texas had a strong interest in applying its law against manufacturers operating
in that state, while also noting that the application of that law did not impose an unexpected burden on a Texas-based manufacturer.
In DeGrasse v. Sensenich Corp.,174 the court concluded that applying Pennsylvania law,
which favored an Arkansas plaintiff at the expense of a Pennsylvania manufacturer,
was in line with Pennsylvanias interests, because Pennsylvanias policy involves the
attainment of broader objectives than simply ensuring full recovery for its domiciliary
its borders, but concluding that that interest is adequately served by applying California law to the many
actions filed by California plaintiffs).
168.In Piper Aircraft Co. v.Reyno, 454 U.S. 235, 26061 (1981), the Supreme Court, while holding that
the dismissal of an action brought in Pennsylvania by Scottish plaintiffs on forum non conveniens grounds
was not an abuse of discretion, discussed, but did not decide, whether the law of the place of manufacture,
Pennsylvania, or the law of the plaintiffs domicile and place of injury, Scotland, should apply. The Court
stated that the incremental deterrence achieved by application of the law of the place of manufacture was
not likely to be significant.
169. In addition to the cases discussed in the text, see, e.g., LewisDeBoer v. Mooney Aircraft Corp.,
728 F. Supp. 642 (D. Colo. 1990) (concluding that Texas, as the place of the defendants conduct and
principal place of business, had a greater policy interest in applying its laws and providing deterrence
than Colorado ha[d]in preventing a windfall to its citizens, id. at 645; Colorado was the plaintiff s home
state and place of injury); In re Disaster at Detroit Metro. Airport on August 16, 1987, 750 F.Supp.793
(E.D. Mich. 1989)(applying Californias pro-plaintiff strict-liability rule, in order to effectuate Californias
policy of ensuring the manufacture of safe products in California).
170. The first five of the cases in the following list (Mitchell, McLennan, DeGrasse, Brown, and Lacey) fall
in this category.
171. 913 F.2d 242 (5th Cir. 1990)(decided under Texas conflictslaw).
172. Id. at 250. In Mitchell, the product was manufactured and sold in Texas by defendants who had their
principal places of business in Maryland and California, respectively. The plaintiffs were the survivors
of Kentucky and New Mexico servicemen, who were killed in North Carolina by defendants defective
munitions. North Carolina, but not Texas, had a statute of repose barring the plaintiffs actions. The court
concluded that North Carolina did not have an interest in applying its statute to protect foreign manufacturers and to deprive of a remedy persons injured in that state. In contrast, the court concluded that
Texas had a substantial interest in encouraging the manufacture of safe products, and that this interest
was particularly strong in this case, because the defective product in question was manufactured and
placed in the stream of commerce in the state of Texas.Id.
173. 245 F.3d 403 (5th Cir. 2001)(decided under Texas conflicts law; applying Texas pro-plaintiff law to
an action of a Canadian domiciliary, injured in Canada by a product manufactured by a Texas manufacturer in Texas).
174. 1989 WL 23775 (E.D. Pa.1989).
Products Liability
305
plaintiffs [such as] deterring the manufacture of defective products by, and assigning
responsibility for such an activity to, Pennsylvania manufacturers.175
In Brown v.Johnson & Johnson,176 the court awarded punitive damages, under Pennsylvania
law, to a Florida plaintiff for a Florida injury caused by a product manufactured in
Pennsylvania by a New Jersey-based defendant. The court concluded that Pennsylvania
had an interest in applying its stricter punitive damages laws to deter the allegedly
wrongful conduct of companies like [defendant] doing business in [Pennsylvania].177
In Lacey v.Cessna Aircraft Co.,178 the court reasoned that the application of Pennsylvanias
strict-liability law, to a case involving a product that was manufactured in Pennsylvania
and caused injury in British Columbia, would further Pennsylvanias interest in deterring the manufacture of defective products but would not impair British Columbias
interest in fostering industry within its borders.179
In Bryant v. Wyeth,180 the court concluded that Pennsylvania, whose law provided for
punitive damages, had a strong interest in punishing Pennsylvania companies that commit fraudulent conduct within its borders, whereas Washington had a strong policy
against punitive damages, but it had no interest in protecting companies that commit
fraud in Pennsylvania.181
In Singh v.Edwards Lifesciences Corp.,182 the court concluded that [w]here an entity
headquartered in California, committed the conduct in California that resulted in the
175. Id. at *4. The plaintiffs in DeGrasse were the survivors of two Arkansas passengers of a small airplane that crashed in Alabama. The defendant was a Pennsylvania corporation that manufactured the
planes propeller in Pennsylvania. The court dismissed the place of the injury as irrelevant, and then it
focused on the laws of Arkansas and Pennsylvania, the first of which was more favorable to defendant.
The court acknowledged that this could be a no-interest case, in which Arkansas, the pro-defendant state,
had no defendant to protect, whereas Pennsylvania, the pro-plaintiff state, had no plaintiff to protect. But
the court refused to adopt such a narrow reading of state interests. It concluded that the application of
Pennsylvania law would not be unfair to a defendant domiciled and acting in that state. Analogizing this
case to Cipolla v.Shaposka, 267 A.2d 854 (Pa. 1970)(discussed supra at 20506), the court said:
Just as the defendant in Cipolla, a resident of defendant-protecting Delaware, was not subjected to
liability exceeding that created by his home state law for conduct within that state merely because
the victim came from a state offering higher protection to plaintiffs, neither should a defendant be
afforded a bonus of the application of more favorable law regarding his allegedly tortious conduct in
his home state merely because the plaintiff in the action happens to reside in a state where the law
strikes a balance which is generally less favorable to plaintiffs.
DeGrasse, 1989 WL 23775at*4.
176. 64 F.Supp.3d 717 (E.D. Pa.2014).
177. Id. at 724. Florida, but not New Jersey, allowed punitive damages. The court concluded that there was
a true conflict between New Jersey and Pennsylvania law, but Pennsylvania had the greater interest.Id.
178. 932 F.2d 170 (3d Cir.1991).
179. Lacey, 932 F.2d at188.
180. 879 F.Supp.2d 1214 (W.D. Wash.2012).
181. Id. at 1225. The manufacturer allegedly committed fraudulent acts in Pennsylvania (mislabeling
and misrepresenting the products qualities) that caused injuries to a Washington domiciliary in the
latterstate.
182. 210P.3d 337 (Wash. Ct. App.2009).
306
plaintiff s damages [in Washington], California ha[d] the greater interest in deterring
such fraudulent activities[,] by applying its punitive damages law.183
Finally, in Sico North America, Inc. v.Willis,184 the court concluded that allowing an action
to proceed against a Minnesota manufacturer would enable Minnesota to promot[e]the
responsibility of Minnesota companies that operate in Minnesota to design, make and
distribute products, and that the Minnesota defendant cannot be surprised or unfairly
prejudiced by the application of a statute enacted by the state in which [defendant] is
incorporated and manufactures its products.185
Even more numerous are the cases in which, without expressly articulating this policy,
the courts allowed claims against a forum manufacturer that were barred by the statute of
repose of a state with victim-affiliated contacts. They did so by characterizing the foreign statute as procedural,186 or by concluding, as Gantes did, that the foreign statute was not intended
to protect forum manufacturers.187 Thus, in Mahne v. Ford Motor Co.,188 the court concluded
that Floridas statute of repose was intended to protect Florida manufacturers, not Michigan
manufacturers, such as the ones involved in that case. The latter cannot argue that applying
Michigan law would defeat their expectations, said the court, and thus there was simply no
reason to extend the benefits of the Florida statute of repose to the Michigan defendants.189
Likewise, in Zenaida-Garcia v. Recovery Systems Technology, Inc.,190 a Washington court concluded that Washington had a strong interest in deterring the design, manufacture, and sale of
unsafe products within its borders, whereas Oregon had no interest in applying its statute of
repose to protect a Washington defendant and thereby deprive an Oregon plaintiff of a remedy.
Finally, in Dabbs v.Silver Eagle Manufacturing Co.,191 an Oregon court applied Oregons longer
statute of limitation, permitting the action of a Tennessee resident injured in Tennessee by a
product acquired there and manufactured in Oregon by an Oregon-based defendant. The court
reasoned that Tennessee had no interest in applying its shorter statute of limitation, barring the
action, because no Tennessee defendant was involved in that case.192
183. Id. at 339. Washington was also the victims domicile. Its law prohibited punitive damages.
184. No. 14-08-00158-CV, 2009 WL 3365856 (Tex. App. Sept. 10, 2009)(action by a Texas domiciliary
injured in Texas by a product manufactured in Minnesota).
185. Id.at*5.
186. See Baxter v.Sturm, Ruger & Co., Inc., 644 A.2d 1297 (Conn.1994).
187. See Cosme v.Whitin Machine Works, Inc., 632 N.E.2d 832 (Mass. 1994); McCarrell v.Hoffman-La
Roche, Inc., No. A-3280-07T1, 2009 WL 614484 (N.J. Super. Ct. App. Div. Mar. 12, 2009), cert. denied,
973 A.2d 385 (N.J.2009).
188. 900 F.2d 83 (6th. Cir. 1990), cert. denied, 498 U.S. 941 (1990).
189. Mahne, 900 F.2d at8889.
190. 115P.3d 1017 (Wash. App.2005), review denied, 132P.3d 1094 (Wash.2006).
191. 779P.2d 1104 (Or. App.1989), review denied, 784P.2d 1101 (Or.1989).
192. Id. at 1106. For other cases reaching the same result, see Marchesani v.PellerinMilnor Corp., 269
F.3d 481 (5th Cir. 2001)(decided under Louisiana conflicts law; applying Louisianas statute of limitation
and allowing a products liability action that was barred by Tennessees statute of repose; the action was
brought against a Louisiana manufacturer by a Tennessee domiciliary, who was injured in Tennessee by a
product manufactured in Louisiana); Smith v.Alza Corp., 400 N.J. Super. 529, 948 A.2d 686 (N.J. Super.
A.D. 2008)(applying New Jerseys statute of limitation, rather than Alabamas statute of repose; allowing
Products Liability
307
Similarly, other cases have applied the pro-plaintiff law of a defendant-affiliated state, rather
than the pro-defendant law of a plaintiff-affiliated state, on issues such as strict liability,193 punitive damages,194 compensatory damages,195 and successor liability.196 For example, in Jones ex
rel. Jones v.Winnebago Industries, Inc.,197 the court applied Iowas pro-plaintiff damages rule for
non-economic loss in an action filed by the family of an Idaho child, who was killed in Idaho
by a recreational vehicle rented by his grandparents in Colorado and manufactured by an Iowa
defendant in Iowa. The court reasoned that, although Iowas interest in fully compensating tort
victims might be somewhat mitigated when the victims are not Iowa residents, Iowa had an
an action by an Alabama plaintiff against a New Jersey-based company that packaged and labeled a drug
in New Jersey and sold it through intermediaries to plaintiff in Pennsylvania, who used it in Alabama);
Davis v.Shiley Inc., 75 Cal. Rptr. 2d 826 (Cal. App.1998), review denied (Oct. 14, 1998)(applying the law
of California, the manufacturers home-state and place of manufacture; allowing an action by an Oregon
domiciliary injured in Oregon, reasoning that Oregon did not have an interest in applying its statute of
repose to bar the action of an Oregon domiciliary against a foreign manufacturer).
193. See In re Disaster at Detroit Metropolitan Airport on August 16, 1987, 750 F.Supp.793 (E.D. Mich.
1989)(multidistrict litigation case filed by residents of Michigan, Arizona, and Florida against Missouri
defendant, who manufactured an airplane in California that crashed in Michigan; applying Californias
pro-plaintiff strict liability rule, in order to effectuate Californias policy of ensuring the manufacture
of safe products within its borders); McLennan v. Am. Eurocopter Corp., Inc., 245 F.3d 403 (5th Cir.
2001)(applying Texass strict-liability law to an action by a Canadian plaintiff, who was injured in Canada
by a helicopter that a Texas corporation manufactured in Texas).
194. See, e.g., LewisDeBoer v. Mooney Aircraft Corp., 728 F. Supp. 642 (D. Colo. 1990) (action by
Colorado plaintiffs against the Texas manufacturer of a small airplane that crashed in Colorado, killing its Colorado passengers; aside from punitive damages, which were permitted in Texas, but not in
Colorado, Texas law favored the plaintiff with regard to compensatory damages and the burden of proof;
after dismissing the occurrence of the injury in Colorado as fortuitous, the court concluded that Texas,
as the place of the defendants conduct and principal place of business, ha[d]a greater policy interest
in applying its laws and providing deterrence than Colorado has in preventing a windfall to its citizens,
id. at 645); Smith v.Alza Corp., 948 A.2d 686 (N.J. Super. A.D. 2008)(applying New Jerseys pro-plaintiff
strict liability and punitive damages law, rather than Alabamas pro-defendant law, to an action filed by
an Alabama plaintiff against a New Jersey-based company that packaged and labeled a drug in New
Jersey and sold it through intermediaries to plaintiff in Pennsylvania, who used it in Alabama); Offshore
Logistics, Inc. v.Bell Helicopter Textron, 1995 WL 555593 (E.D. La. 1995)(allowing punitive damages,
under Texas law, in an action arising out of a Louisiana crash of a helicopter that the Texas defendant
manufactured in Texas).
195. See, e.g., Champlain Enterp., Inc. v. United States, 945 F. Supp. 468 (N.D.N.Y. 1996) (action for
recovery of pure economic loss filed by a NewYork plaintiff, whose plane crashed in NewYork, against a
Kansas defendant, who manufactured the plane in Kansas; applying Kansass pro-plaintiff law, but holding for defendant on the merits); Torrington Co. v.Stutzman, 46 S.W.3d 829 (Tex. 2000)(applying Texass
pro-plaintiff compensatory damages law to an action filed against a Texas-based corporation that manufactured a helicopter in Texas; the place of injury and the victims domiciles were in three different states).
196. See, e.g., Standal v.Armstrong Cork Co., 356 N.W.2d 380 (Minn. App.1984) (applying Pennsylvanias
pro-plaintiff law to a claim of a Minnesota resident against Pennsylvania manufacturers); Ruiz v.Blentech
Corp., 89 F.3d 320 (7th Cir. 1996), cert. denied, 519 U.S. 1077 (1997) (holding that, under Illinois conflicts
law, the products-liability claims of an Illinois resident injured in Illinois, by a product manufactured in
California, would be governed by Illinois law, whereas issues of successor liability would be governed by
Californias pro-plaintiff rule; eventually holding the latter rule inapplicable on the ground that California
characterized such rule as part of its products-liability law (rather than its corporatelaw)).
197. 460 F.Supp.2d 953 (N.D. Iowa2006).
308
additional interest in providing a forum for redress of injuries caused by its citizens, an interest
that was implicated in this case, because Iowa was the defendants home state and the place of
the alleged tortious conduct.
In Magnant v. Medtronic, Inc.,198 a court sitting in Michigan reached the same result, but
under an apparently self-serving reasoning, which led to the application of Minnesotas pro-
plaintiff law for the benefit of a Michigan plaintiff. The plaintiff sued a Minnesota defendant
for injury sustained in Michigan, as a result of a defect in a heart pacemaker designed and
manufactured by the defendant and implanted in the plaintiff in Minnesota. Minnesota, but
not Michigan, imposed strict liability on manufacturers. In determining whether there was a
good reason to displace Michigans lex fori presumption, the court reasoned that Minnesota
had an interest in applying its pro-plaintiff law to Minnesota defendants, in order to provide
them with certainty as to which law would apply and predictability of results.199 The court
also noted that the defendant cannot complain that application of Minnesota law is unfair or
contrary to its expectations.200 The court also reasoned that Michigan did not have an interest in applying its law, because the plaintiff would receive more rights under Minnesota law
than under Michigan law.201 Thus, the court concluded, Minnesotas interests provide a sound
reason for displacing Michigan law in this case.202
B. CASES APPLYING THEPRO-DEFENDANT

LAW OFA PLAINTIFF-AFFILIATEDSTATE
The above discussion should not leave the impression that courts are eager to apply a pro-
plaintiff law. In fact, the cases discussed in the preceding section are outnumbered by cases
of the same pattern that reached the opposite result, by applying the pro-defendant law of a
state that had the plaintiff-affiliating contacts. These cases are depicted in Table 29 and are
discussed below, beginning with those in which the state with the pro-defendant law had all
three plaintiff-affiliating contactsthe plaintiff s domicile, the place of injury, and the place of
the products acquisition.
Table29. Cases Applying thePro-Defendant Law ofa Plaintiff-AffiliatedState
Pattern
Ps domicile
Injury
Acquisition
Manufacture
Ds PPB
24a. Inverse conflict
Pro-D
Pro-D
Pro-D
Pro-P
Pro-P
198. 818 F.Supp.204 (W.D. Mich.1993).

199. Id. at207.
200. Id.
201. Id.
202. Id.
Products Liability
309
1. Choice Based onThree Contacts

When a state has all three plaintiff-affiliating contacts, then the application of its law is almost
inevitable whenever the court follows a presumption in favor of the lex loci delicti, such as the
one established by Section 146 of the Restatement (Second). Indeed, this is a bad combination for plaintiffs seeking to avoid the pro-defendant law of that state. In most cases, they are
unable to rebut the presumption, because the state of injury has two additional, and indeed
important, contacts. Several cases involving statutes of repose203 and other pro-defendant
laws,204 decided under this presumption, or other similar formulations,205 illustrate the plaintiffs difficulties. One example is Dorman v.Emerson Electric Co.,206 in which the court applied
203. See Klein v. DePuy, Inc., 506 F.3d 553 (7th Cir. 2007) (applying North Carolinas 6-year statute
of repose, rather than Indianas 10-year statute, thus barring the action of a North Carolina plaintiff
against an Indiana manufacturer; the product (a hip prosthesis) was manufactured in Indiana, but it
was acquired, used, and caused injury in North Carolina); White v.Crown Equip. Corp., 827 N.E.2d 859
(Ohio App.2005) (applying Georgias statute of repose, barring an action against an Ohio defendant, who
manufactured a lift truck in Ohio that injured the Georgia plaintiff in Georgia); Walls v. Gen. Motors,
906 F.2d 143 (5th Cir. 1990)(applying Oregons statute of repose to bar an action of an Oregon plaintiff,
injured in Oregon by a car he acquired in that state).
204. See Bain v.Honeywell Intl, Inc., 257 F.Supp.2d 872 (E.D. Tex. 2002)(applying British Columbias
pro-defendant law to the action of an Australian residing in British Columbia, and arising from an
injury there); Walters v. Maren Engg Corp., 617 N.E.2d 170 (Ill. App. 1993) (applying Kansas law
to an action of a Kansas plaintiff, injured in Kansas by a machine partly manufactured in Illinois);
Michaud v. Fairchild Aircraft Inc., 2004 WL 1172897 (Del. Super. May 13, 2004) (applying Qubecs
pro-defendant compensatory-damages law to wrongful death actions arising from the crash of a small
airplane in Qubec, involving only Qubec victims and flights); Campofiore v.Wyeth, 2004 WL 3105962
(Conn. Super. Dec. 7, 2004)(applying Connecticuts pro-defendant law to the action of a Connecticut
plaintiff, who was injured in Connecticut by a drug manufactured by a New Jersey defendant in New
Jersey); Lupoli v. N. Util. Natural Gas, Inc., 2004 WL 1195308 (Mass. Super. Feb. 11, 2004) (applying New Hampshires pro-defendant parental consortium law to an action filed on behalf of a New
Hampshire worker, who was injured in that state by a gas burner manufactured in part by defendant in
Massachusetts); Augello v.Bobcat Co., 2013 WL 1209936 (E.D. Wash. Mar. 25, 2013)(applying Idaho
law and barring the action of an Idaho domiciliary, who was injured in that state by a product he purchased in that state.)
205. For a case decided under Indianas significant contacts approach, see Alli v. Eli Lilly & Co., 854
N.E.2d 372 (Ind. App.2006) (applying Michigans pro-manufacturer law to a products liability action filed
by a Michigan plaintiff, who used a prescription drug that an Indiana-headquartered defendant manufactured in Indiana; finding that the plaintiff did not rebut the lex loci presumption of Indiana conflicts law,
because Michigan, which was also the place of injury and product acquisition, had significant contacts
with the case); In re Eli Lilly & Co. Prozac Prods. Liab. Litig., 789 F.Supp.1448 (S.D. Ind. 1992)(same
result in an action by California residents, injured in that state by a drug acquired and used there, against
Indiana defendant, who manufactured the drug in Indiana). For cases decided under Article 3545 of the
Louisiana codification (which requires the application of the law of the forum state, if that state is also
the victims home-state, place of injury, and place of acquisition), see Clark v. Favalora, 722 So. 2d 82
(La. App.1998); Orleans Parish Sch. Bd. v.United States Gypsum Co., 1993 WL 205091 (E.D. La. June 8,
1993); Jefferson Parish Hosp. Dist. #2 v.W.R. Grace, 1992 WL 167263 (E.D. La. June 30, 1992). See also
K.E. Pittman v. Kaiser Aluminum & Chem. Corp., 559 So. 2d 879 (La. App. 1990) (same result, under
pre-codificationlaw).
206. 23 F.3d 1354 (8th Cir. 1994), cert. denied, 513 U.S. 964 (1994) (decided under Missouri conflictslaw).
310
the law of British Columbia. The plaintiff, a British Columbia domiciliary, was injured in that
province by a miter saw he purchased there. ATaiwanese corporation manufactured that particular miter saw in Taiwan under license from defendant, a Missouri corporation, which had
designed and tested that line of products in Missouri. Unlike Missouri, British Columbia did
not impose strict liability on manufacturers. The court concluded that the plaintiff did not
rebut the presumption of Section 146 in favor of the law of the place of injury, and thus the
law of British Columbia governed. The plaintiff had argued that, because the saw had been
designed in Missouri, that state had an interest in deterring substandard conduct within its
territory. The court found that interest insufficient to rebut the presumption.207 The court enumerated the Canadian contacts and, without articulating any corresponding Canadian interests, concluded that Canadas interests in and contacts with this case are at least as substantial
as Missouris.208
Considering the starting point of the courts analysis, the application of British Columbia
law is not surprising. Indeed, if one begins with a presumptive lex loci rule and thinks in terms
of weighing factual contacts (rather than state interests in light of pertinent contacts), then
there is nothing surprising in saying that in this case the presumption had not been rebutted
by the forums contacts, which, although non-negligible, were less than overwhelming. But
there is more room for disagreement when a court purports to base the application of the pro-
defendant law of the plaintiff s home state on the ostensible interests of that state. Many recent
cases purport to do so, with reasoning that often devolves into disguised protectionism of local
defendants.
In Townsend v.Sears, Roebuck and Co.,209 the Illinois Supreme Court based its decision both
on the strong presumption210 of Section 146 and the supposed interests of the involved states.
The interests part of the opinion is less than persuasive. The court applied the pro-defendant
law of the plaintiff s home state of Michigan, which was both the place of injury and the products acquisition,211 rather than the pro-plaintiff law of Illinois, which was the defendants principal place of business and the place where key design decisions, investigations of prior similar
occurrences, and product testing took place.212 The court found that Michigan had a strong
relationship to the occurrence and the parties,213 and thus it was unable to conclude that
Illinoiss relationship was so pivotal as to overcome the presumption that Michigan, as the
207. See Dorman, 23 F.3d at 1359. In Burleson v.Liggett Group Inc., 111 F.Supp.2d 825 (E.D. Tex. 2000),
the plaintiffs did not articulate the interests of the state of manufacture in applying its pro-plaintiff law.
The plaintiffs sued tobacco manufacturers, seeking to recover damages caused by plaintiffs smoking of
defendants cigarettes. The action was specifically barred by a special Texas statute designed to protect
tobacco manufacturers, and the court held that foreign manufacturers who distributed tobacco products
in Texas fell within the protective scope of that statute.
208. Dorman, 23 F.3d at1361.
209. 879 N.E.2d 893 (Ill.2007).
211. Michigan did not impose strict liability on manufacturers, imposed caps on non-economic damages, and prohibited punitive damages.
212. Illinois imposed strict liability on manufacturers, declared a statutory cap on non-economic damages unconstitutional, and permitted punitive damages.
213. Id. at906.
Products Liability
311
state where the injury occurred, is the state with the most significant relationship.214 After criticizing the lower courts characterization of the two states laws as pro-consumer and pro-
business,215 the court concluded that each state had an equal interest in having its tort rule
applied.216 The court opined that Illinois had a legitimate interest in the liability to be imposed
on Illinois-based defendants and that Michigan had an equally legitimate interest in the remedies to be afforded its residents who suffer such tort injuries.217
In contrast, the intermediate court found that Michigan did not have an interest in applying its pro-defendant law, because such application would not materially advance the goal of
protecting its resident producers from strict liability in this case.218 Michigans policy could not
have been designed to punish its plaintiffs, the court said, and thus Michigan had no interest
in denying its residents easier proofs at trial for the purpose of benefitting a foreign producer
or designer.219
In Gregory v. Beazer East,220 another Illinois court applied Indianas statute of repose, barring a product liability action brought by the estate of an Indiana domiciliary, who was exposed
to asbestos in Indiana and Illinois. Illinois law did not bar the action. Among the reasons for
applying the law of the victims home state, the court mentioned that it is the state of domicile
that most clearly feels the social and economic impact of an injured partys tort recovery, and,
in cases involving death, the state of domicile is the one concerned with the administration of
estates, including the adequacy of compensation to the beneficiaries.221 Indeed, these are good
reasons, but only when that law protects the victim. On the other hand, when (as in Gregory and
Townsend) that law protects the tortfeasor, a court should come up with other reasons for applying thatlaw.
Rowe v. Hoffman-La Roche, Inc.,222 a case decided by the Supreme Court of New Jersey
when it still followed interest analysis, is one of the most important in this group of cases,
because it signifies a reversal of that courts previously hospitable stance toward foreign plaintiffs. The product in question was a drug that a New Jersey defendant designed and manufactured in New Jersey and sold worldwide. The victim used the drug in his home-state of
Michigan and suffered the resulting injuries there. New Jersey law favored the plaintiff, while
214. Id. at907.

215. Id. at909.
216. Id. at911.
217. Id. In any event, these interests did not seem to matter, because they d[id] not override [the]
strong presumption that the law of Michigan, as the state where plaintiffs reside and where the injury
occurred, governs the conflicting issues presented in this case. Id. at909.
218.Townsend ex rel. Townsend v.Sears, Roebuck and Co., 858 N.E.2d 552, 559 (Ill. App. Ct.2006).
219. Id. In contrast, the court reasoned, Illinois ha[d]a strong interest in applying its law to regulate culpable conduct occurring within its borders, induce the design of safer products, and deter future
misconduct. Id. at 55960. Because Illinois was the defendants principal place of business and the place
where all the design decisions were made, as well as the decision to place the product into the stream
of commerce, Illinois had a significant interest in applying its design defect standards to effectuate the
regulatory policy reflected in its law. Id. at560.
220. 892 N.E.2d 563 (Ill. Ct. App.2008).
221. Id. at574.
222. 917 A.2d 767 (N.J.2007).
312
Michigan favored the defendant.223 In a decision attempting to distinguish Gantes v. Kason

Corp.,224 but actually backtracking from it, the court applied Michigan law. Although characterizing the case as a true conflict, the court essentially treated it as a false conflict, by concluding that the interests of the two states were not antithetical but substantially congruent.225
The court thought that Michigan had a strong interest, because its pro-manufacturer law was
intended to protect not only Michigan manufacturers, but also non-Michigan manufactures,
with the ultimate goal of making drugs more affordable for Michigan consumers. The court also
reasoned that the dominant objective of New Jerseys law, which favored plaintiffs was not to
encourage tort recoveries by plaintiffs in order to deter [New Jerseys] drug manufacturers,
but rather to limit[] the liability of manufacturers of FDA-approved products by reducing the
burden placed on them by product liability litigation.226 The problem with these premises is
that they appear to overlook the fact that New Jersey law protected manufacturers much less
than Michigan (and most other states), and Michigan law protected the individual consumer
much less than New Jersey. The viability of the plaintiff s action hinged on that important
difference.
Returning to its true conflict characterization, and [a]fter properly discerning and
weighing the respective policies of New Jersey and Michigan, the court concluded that
New Jerseys interest was limited and outweighed by Michigans interest in making more
prescription drugs generally available to its citizens.227 The court noted that [t]o allow a
life-long Michigan resident who received an FDA-approved drug in Michigan and alleges
injuries sustained in Michigan to by-pass his own states law and obtain compensation for
his injuries in this States courts completely undercuts Michigans interests, while overvaluing
our true interest in this litigation.228 Of course, one could make the same argument against
the New Jersey defendant, which the court allowed to bypass its own states law. The court
closed by stating:
In this instance, where the challenged drug was approved by the FDA and suit was brought by
an out-of-state plaintiff who has no cause of action in his home state, [New Jerseys] interest in
ensuring that our corporations are deterred from producing unsafe productswhich was determinative in Gantes and however weighty in other contextsis not paramount. Our interest in
deterring local manufacturing corporations from providing inadequate product warnings, within
the context of an FDA approved drug, must yield to Michigans interest.229
223. Under Michigan law, the manufacturer was not liable, if the FDA approved the drug and its labeling.
Under New Jersey law, the FDAs approval merely established a rebuttable presumption that the warning
was adequate. Because the FDA approved this drug and its labeling, the plaintiff s action would be viable
in New Jersey, but not in Michigan.
224. Gantes is discussed, supra, at 165, 30203.
225. Rowe, 917 A.2d at774.
226. Id.
227. Id. at775.
228. Id. at776.
229. Id. (footnote omitted).
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313
In other cases involving drug manufacturers and the same pattern, courts in California,230
NewYork,231 Pennsylvania,232 and the District of Columbia233 have reached the same results as
Rowe.234 In Henderson v.Merck & Co.,235 a case virtually identical to Rowe, the court followed the
same logic and reached the same result. The court reasoned that Michigan had a strong interest
in applying its pro-defendant law (even if it did not favor the Michigan plaintiff), because this
would ensure that Michigan residents, including plaintiff, are not burdened with excessively
high payments for prescription drugs, indeed, that such drugs remain financially available for all
Michigan citizens, even if that means immunizing non-resident pharmaceutical companies.236
230.In Chang v. Baxter Healthcare Corp., 599 F.3d 728 (7th Cir. 2010), rehg and rehg en banc denied
(Apr 26, 2010), cert. denied, 562 U.S. 895 (2010) (decided under California conflicts law), the plaintiffs
were Taiwanese hemophiliacs, who had been infected with HIV after using blood clotting factors used to
control bleeding and manufactured by the defendants in California. The court held that the action was
barred under both Californias 2-year statute of limitations and Taiwans 10-year statute of repose, which
was applicable under Californias borrowing statute. The court also concluded that California courts
would apply the Taiwanese statute of repose, even in the absence of a borrowing statute, reasoning that
if Taiwan will not provide a remedy to its own citizens, there is no reason for California to do so. Id. at
734. After all, the court asked rhetorically, [w]hat interest has California in treating Taiwanese plaintiffs
more generously than Taiwan treats them?Id.
231.In Devore v. Pfizer Inc., 867 N.Y.S.2d 425 (N.Y. App. Div. 2008), appeal denied (Feb. 19, 2009), a
NewYork court applied the same Michigan law in identical circumstances for the benefit of a NewYork
manufacturer. The court based its decision on two questionable assumptions: (1) the Michigan statute
was conduct-regulating, rather than loss-distributing; and, (2)in cross-border torts, the applicable law is
the law of the place of injury, not the place of conduct. The court thought that Michigan had far greater
significant contacts, and that its interest in shielding drug manufacturers from liability outweighed
NewYorks interests. Id. at428.
232.In Knipe v.SmithKline Beecham, 583 F.Supp.2d 602 (E.D. Pa. 2008), the court applied the law of
New Jersey, where the plaintiff suffered injuries, after using a drug manufactured by the defendant in
Pennsylvania. Punitive damages were available under the law of Pennsylvania, but not New Jersey.
233.In Kelley v. Eli Lilly and Co., 517 F. Supp. 2d 99 (D.D.C. 2007), the court held that the law of
Massachusetts, which was the plaintiff s home-state and place of injury, as well as the place where the
drug was prescribed and used, was the proper law and held it applicable, without discussing the laws or
contacts of any otherstate.
234. Heindel v.Pfizer Inc., 381 F.Supp.2d 364 (D.N.J. 2004), a case that predates Rowe, also reached the
same result. Heindel was a consumer fraud action, filed by Pennsylvania consumers who used in that state
a drug manufactured by New Jersey defendants in New Jersey. The court noted that, because the plaintiffs
were not New Jersey domiciliaries, New Jersey did not have a compelling reason to extend to them the
benefit of New Jerseys pro-plaintiff law, but New Jersey did have an interest in governing the conduct of
its corporate citizens and encouraging truthful marketing and advertising of products. Id. at 377. However,
the court thought that Pennsylvania had a competing interest in ensuring that its own citizens are compensated for their injuries, even if its law would not compensate them, and in applying its rules regulating drug
sales, doctors, and pharmacies within its borders. Id. (internal quotations omitted). The court concluded
that the deterrence interest of New Jersey as the domicile and locus of the defendant manufacturer must
yield in this case to the compensation interest of Pennsylvania. Id. at 378 (internal quotations omitted).
235. 2005 WL 2600220 (E.D. Pa. Oct. 11, 2005). This case involved the same Michigan law, which barred
product liability actions against manufacturers of FDA-approved drugs. The manufacturers home-states,
New Jersey and NewYork, would permit the action. The court found that Michigan had the most significant qualitative contacts, id. at *7, because the plaintiff was domiciled and injured in that state, and
she purchased the drugs in Michigan, thereby making Michigan the center of the parties relationship.
236. Id.
314
In a similar vein, Cornett v. Johnson & Johnson,237 another New Jersey case managed to
avoid applying New Jerseys pro-plaintiff law, which favored a Kentucky plaintiff at the expense
of a New Jersey defendant.238 The plaintiff s action was arguably timely under New Jerseys statute of limitation, but not under Kentuckys statute of limitation/repose. The court resolved the
conflict under Section 146 of the Restatement (Second), which applies to personal injury cases,
rather than Section 142, which applies to statutes of limitation conflicts. The court held that
the plaintiff did not overcome the (Section 146)presumption in favor of the law of the state of
injury, Kentucky, and thus her action was time-barred.
In comparing the interests of the two states, the court noted that while New Jersey
undoubtedly has an interest in regulating the safety of any activities in [defendants] facility
that might have contributed to the injury, that concern was in competition with Kentuckys
differing view of how stringently to regulate,239 and Kentuckys view applied to all in-state
conduct by manufacturers, regardless of whether they are residents.240 In the courts view, the
application of New Jersey law would impair[e]Kentuckys ability to regulate conduct within
its borders according to its own standards, and, in any event, New Jersey has little interest in
protecting the compensation rights of a Kentucky resident.241
Plaintiffs have been equally unsuccessful in cases decided in California242 and in
Iowa,243 as well as under Leflars better law approach followed in Arkansas244 and
237. 998 A.2d 543 (N.J. Super. A.D.2010).

238. The product in question was an arterial stent, manufactured by a Florida subsidiary of a New Jersey
corporation, implanted in the heart of a Kentucky patient who later died, allegedly because the stent was
defective.
239. Cornett, 998 A.2d at552.
240. Id. at553.
241. Id.
242.In Vestal v.Shiley Inc., 1997 WL 910373 (C.D. Cal. Nov. 17, 1997), the court applied North Carolinas
statute of repose, barring a product liability action by a North Carolina domiciliary against a California
manufacturer of heart valves, implanted in the plaintiff during a North Carolina surgery. The court concluded that the application of Californias statute of limitation, which allowed the action, would impair
North Carolinas effort to protect manufacturers who sell goods within its borders. Id. at *3. The court
noted Californias potential interest in deterring California manufacturers from manufacturing defective
products within its borders, but it concluded that that interest is adequately served by applying California
law to the many actions filed by California plaintiffs.Id.
243.In Harlan Feeders, Inc. v. Grand Laboratories, Inc., 881 F. Supp. 1400 (N.D. Iowa 1995), the court
refused to apply Iowa law, which imposed punitive damages, and instead it applied Nebraska law, which
did not allow such damages. The product was manufactured in Iowa and was sold to a Nebraska plaintiff
in Nebraska and caused injury there. The court said:
Nebraska has made a policy choice that punitive damages are inappropriate, and that interest is
not outweighed by Iowas contrary interest in imposing punitive damages as a deterrent, at least
not where the plaintiff is a resident of Nebraska, not Iowa, where the alleged injury occurred in
Nebraska, not Iowa, as a result of use of a product manufactured by a South Dakota, not an Iowa
corporation, even when the corporation physically produced the product inIowa.
Id. at1410.
244.In Hughes v.WalMart Stores, Inc., 250 F.3d 618 (8th Cir. 2001), the product was sold by an Arkansas
defendant in Louisiana to the Louisiana plaintiffs, and it caused the plaintiffs injury in Louisiana. The
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315
Minnesota.245 But plaintiffs have a particularly difficult time prevailing in cases decided by
Michigan courts and involving Michigan defendants, especially one of the big three automakers. Despite the fact that Michigan follows a lex fori approach, Michigan courts find ways
to avoid applying Michigan law when it disfavors a Michigan defendant. Four cases, Hall
v. General Motors Corp.,246 Standard Fire Insurance Co. v. Ford Motor Co.,247 Farrell v. Ford
Motor Co.,248 and Bruce v.Haworth, Inc.,249 are representative of this stance. In Hall, a Michigan
court held that North Carolina had an interest in barring the action of a North Carolina plaintiff against a Michigan defendant that was not protected by Michigan law. The defendant was
General Motors (GM), a corporation that has its principal place of business in Michigan and
that designed the car in Michigan.250 The court acknowledged that Michigans lex fori approach
most frequently favors using the forums (Michigans) law.251 Nevertheless, said the court,
Michigan courts use another states law where the other state has a significant interest and
Michigan has only a minimal interest in the matter[.]252 The court concluded that this was
such a case:North Carolina had an obvious and substantial interest in shielding [GM] from
plaintiffs could recover against the defendant under Arkansas law, but not under Louisiana law. The court
held that Louisiana law governed, because only one of the five Leflar factors was dispositivemaintenance of interstate and international orderand this factor pointed to Louisiana, because that state had
nearly all the significant contacts. Id. at 620. Arkansas had no interest in applying its pro-plaintiff law
against an Arkansas defendant, because the plaintiff was not a resident of Arkansas and the injury did
not occur there. Neither was the better-law factor dispositive, because Louisiana law was not particularly
archaic and unfair, and thus, said the court, our subjective view of which law represents the more reasoned approach would not persuade us that Arkansas law should apply[.] Id. at 62122.
245. See Nesladek v.Ford Motor Co., 46 F.3d 734 (8th Cir. 1995), cert. denied, 516 U.S. 814 (1995) (applying the pro-defendant statute of repose of Nebraska, which was the plaintiff s home-state at the time of
the injury, as well as the place of the injury and the products acquisition).
246. 582 N.W.2d 866 (Mich. App.1998), appeal denied, 459 Mich. 986 (Mich.1999).
247. 723 F.3d 690 (6th Cir. 2013)(decided under Michigan conflictslaw).
248. 501 N.W.2d 567 (Mich. App.1993), appeal denied, 519 N.W.2d 158 (Mich. 1994). Farrell was a product liability/wrongful death action arising from a North Carolina accident, in which a North Carolina
domiciliary was killed while driving a Ford car. The action would have been timely in Michigan, but
North Carolinas statute of repose barred it. The Michigan court applied the North Carolina statute, after
concluding that North Carolina had an obvious and substantial interest in shielding Ford from open-
ended products liability claims and [in] encourag[ing] manufacturers, such as Ford, to do business in
North Carolina. 501 N.W.2d at 572. The court rejected the argument that this interest was any less compelling because Ford did not have a manufacturing plant in North Carolina. Id. It concluded, Michigan
had no interest in affording greater rights of tort recovery to a North Carolina resident than those
afforded by North Carolina. Id. After all, Michigan [was] merely the forum state and situs of defendants
headquarters. Id. (footnote omitted).
249. 2014 WL 834184 (W.D. Mich. Mar. 4, 2014). In Bruce, the court applied Georgias statute of repose,
barring the action of Georgia plaintiffs against a Michigan manufacturer, after noting that, in cases of this
pattern, Michigan courts conclude that the foreign state has a significant interest in the application of its
law, especially where the foreign state [such as Georgia, here] curtails products liability claims by means
of a statute of repose, even if such a result would benefit foreign manufacturers at the expense of that
states residents. Id.at*6.
250. The car was manufactured in Ohio, but neither party urged the application of Ohiolaw.
251. Hall, 582 N.W.2d at868.
252. Id. First, the court listed North Carolinas contacts with the plaintiff, and then, without explaining the relevance of those contacts to the issue at hand, it proclaimed that North Carolina obviously
316
open ended products liability claims, and that it was obviously in North Carolinas economic
interest to encourage manufacturers, such as [GM], to do business in North Carolina.253 The
court also concluded that Michigan, being merely the forum state and situs of defendants
headquarters[,] had no interest in affording greater rights of tort recovery to a North Carolina
resident than those afforded by North Carolina.254
Standard Fire Insurance Co. v.Ford Motor Co.,255 a case involving another of Michigans automakers, Ford, is essentially a carbon copy of Hall. Acar that Ford designed and manufactured
in Michigan caught fire, while in the owners driveway in Tennessee, resulting in destruction
of the car and damage to the owners house. The court applied Tennessees 10-year statute of
repose, barring the owners products liability action, which was timely under Michigans statute
of limitation. The court found that Tennessee had an interest in applying its law and Michigan
did not, thus rebutting the presumption in favor of the lex fori. The court reasonedthat:
(1) Tennessee had an obvious and substantial interest in applying its statute of repose to
shield manufacturers like Ford from open-ended liability, because Ford generated
substantial commerce in Tennessee and employed numerous Tennessee residents, and
the car owner was a Tennessee resident who sustained property damage in Tennessee
allegedly caused by a defect in a vehicle registered and insured in Tennessee;256but
(2) Michigan had no interest in applying its law, because Michigan was merely the forum
state and situs of Fords headquarters, and it had no interest in affording greater rights
of tort recovery to a Tennessee resident than would Tennessee law.257
Of course, in both Hall and Standard Fire, Michigan was not merely the forum state,
nor merely the place of the defendants headquarters, but was also the place of the wrongful
conductthe negligent design, manufacture, and failure to warn. As a concurring judge noted
in Hall, GMs relationship with North Carolina was insignificant when compared to its enormous economic presence in Michigan and consequential effect on this state. GMs headquarters and a significant part of its operations are located in Michigan.258 Similarly, the court
in Standard Fire acknowledged that Fords commercial activities in Michigan dwarf those in
Tennessee.259
has a substantial interest in applying its law. See id. ([P]laintiff lived in North Carolina, worked for a
North Carolina employer, and was injured in North Carolina by a vehicle owned, registered, licensed, and
insured in North Carolina, and plaintiff subsequently received medical treatment in North Carolina.
North Carolina, therefore, obviously has a substantial interest in applying its law to this dispute. Id.)
(emphasis added). Eventually, the court concluded that North Carolinas interests did not depend on its
contacts with the plaintiff, but rather on its contacts with the defendant.
255. 723 F.3d 690 (6th Cir. 2013)(decided under Michigan conflictslaw).
256. Standard Fire, 723 F.3d at697.
257. Id. at698.
258. Hall, 582 N.W.2d at 870 (Matuzak, J., concurring).
259.Standard Fire, 723 F.3d at 699. The court also acknowledged that Michigans interests in this litigation are understated[,] but it concluded that Michigans interests are not such as to mandate that
Michigan law be applied despite Tennessees interest.Id.
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317
Moreover, the courts statements that Michigan had no interest in affording greater rights
of tort recovery 260 to the two plaintiffs than those afforded by their home-states raise the
corollary question:why those two states had an interest in affording the Michigan defendants
greater protection than that afforded by Michigan. The courts reasoning that those states had
an interest in encouraging GM and Ford to do business there may or may not be persuasive,261
if only because it creates the suspicion of favoritism for the forum litigants.262
In Radeljak v. DaimlerChrysler Corp.,263 a case against Michigans third automaker, the
plaintiffs did not even get to argue the merits of their case. The plaintiffs were Croatian citizens, who were injured in Croatia by a car designed and manufactured by the defendant in
Michigan. The Michigan Supreme Court held that the suit should be dismissed on forum non
conveniens grounds. In just one conclusory sentence on the choice-of-law question, the court
stated that Croatian law would likely govern the case, because Croatia had a greater interest
in this case, because it involve[d]residents and citizens of Croatia who were injured in an
accident in Croatia.264 The court also stated that the plaintiffs sued in Michigan to take advantage of Michigans favorable laws and to avoid Croatias less favorable laws.265 A concurring
260. Id. at 698; Hall, 82 N.W.2d at 869. See also Farrell, 501 N.W.2d at572.
261. See Hall, 582 N.W.2d at 87071 (Matuzak, J., concurring). After pointing out that, because of defendants enormous presence in Michigan, applying this states law should not defeat defendants expectations, the judge questioned North Carolinas interest in applying its statute of repose: [i]nstead of
protecting a North Carolina manufacturer, the statute is being used to protect an out-of-state manufacturer for injuries sustained in North Carolina arising out of wrongs alleged to have been committed in
Michigan or Ohio. [T]here is no good reason to extend the benefits of the North Carolina statute of
repose to defendant. For the courts analysis of Floridas statute of repose in a virtually identical case, see
also Mahne v.Ford Motor Co., 900 F.2d 83 (6th Cir.1990), cert. denied, 498 U.S. 941 (1990) (discussed
supra at 306).
262. This suspicion is dispelled somewhat by cases such as Kemp v.Pfizer, Inc., 947 F.Supp.1139 (E.D.
Mich. 1996), which applied Michigans pro-defendant law for the benefit of a California manufacturer and
at the expense of a Michigan plaintiff. Kemp was an action filed by the survivors of a Michigan domiciliary, who died in Michigan as a result of a malfunction of a heart valve that the defendant manufactured
in California. California, but not Michigan, imposed punitive damages. The court acknowledged that, as
the place of both the defendants principal place of business and the products manufacture, California
had an interest in applying its law to punish its corporate defendants and deter future misconduct. Id.
at 1143. But, the court concluded, because the defendant was also doing business in Michigan, Michigan
had an interest in extending to defendant the benefit of its defendant-protecting law. The court felt
relieved from having to engage in the admittedly abstruse exercise of determining which states interest
is greater, because, under Michigans lex fori approach, where Michigan has a strong interest in applying
its laws the Michigan courts would not displace its own laws in favor of the law of a foreign state.
Id. Thus, the court dismissed the plaintiffs claim for punitive damages. See also Drooger v.Carlisle Tire
& Wheel Co., 2006 WL 1008719 (W.D. Mich. Apr. 18, 2006) (product liability action against a South
Carolina corporation that designed and manufactured defective tires in that state, which caused injury in
Michigan to the Michigan plaintiffs; following the lex fori presumption, the court applied Michigan law
because Defendants only interest in having its home states law apply is that Defendant is a South
Carolina resident [but] mere corporate citizenship is not a weighty enough interest to tip the scales in
Michigans choice of law analysis. Id. at*2).
263. 719 N.W.2d 40 (Mich.2006).
264. Id.at46.
265. Id. at 48. The court also noted that a Michigan court is being asked to apply Croatian law to
Croatian plaintiffs in a lawsuit pertaining to an accident that occurred in Croatia.Id.
318
opinion warned that, if Michigan cannot refuse to exercise jurisdiction in cases brought by foreign plaintiffs for foreign injuries, Michigan will likely become the worlds automobile design
defect courthouse.266 Yet, a court that has seen fit to adopt a lex fori approach should not be
surprised that its courthouse attracts foreign plaintiffs. Alternatively, in the interest of transparency, the court could clarify that this approach is reserved only for the benefit of Michigan
litigants.
In Rutherford v. Goodyear Tire & Rubber Co.,267 which was decided under Kentuckys lex
fori approach, the court applied the pro-defendant law of Indiana, which was the plaintiff s
home-state and place of injury and, indirectly, the place of the products acquisition. The
product, a car tire, was manufactured in Kansas by Goodyear, an Ohio corporation; was purchased by Ford, a Michigan corporation; and was mounted on a car in Fords assembly plant in
Kentucky. The car was sold to an Indiana motorist who, while driving in Indiana, collided with
plaintiff s car. Indiana, but not Kentucky, had a statute of repose that barred the action. While
acknowledging Kentuckys strong preference for the lex fori, the court concluded that neither
the forums contacts nor its interests warranted this preference in this case, and that Indianas
overwhelming interest268 outweighed this reference. The court reasoned that Kentuckys statute of limitation was designed primarily to protect its own citizens or those injured within its
boundaries [and not to] regulat[e]products assembled within its boundaries.269 The court
opined that a certain federalist concept, which the court did not define, inherently limits the
reach of any states perceived interest to matters which occur within its boundaries or which
impact its citizens.270 The court rejected the plaintiff s plea to choose the law of the state in
which the product was manufactured or assembled, because of the practical difficulties such
a choice would create whenever the design, testing, manufacture, and assembly take place in
different states. The court also reasoned that:Legal claims do not arise at the time or at the
place of manufacture. They arise when an injury occurs. Thus, the place of injury, not the place
of manufacture is the central focus of the cause of action.271
2. Choice Based onTwo Contacts

In the cases discussed in the preceding section, the state with the pro-defendant law had all
three victim-affiliated contacts. Thus, under a mechanical significant-contacts or Restatement
(Second) analysis, one could more easily conclude that that state had a more significant relationship than the state with the two defendant-affiliating contacts. Such a conclusion may be more
difficult in cases in which the first state has only two victim-affiliating contacts. Nevertheless,
courts confronted with such cases have not acknowledged this difficulty.
266. Id. at 57 (Markman, J., concurring).

267. 943 F.Supp.789 (W.D. Ky.1996).
268. Id. at793.
269. Id. at792.
270. Id.
271. Id. at793.
Products Liability
319
a. Plaintiffs Domicile andInjury

In cases of this pattern (depicted in Table30), the victim is injured in his or her home-state by
a product acquired in another state. Depending on which laws the parties invoke, the courts
choice is between the pro-defendant law of the victims home-state and place of injury, on the
one hand, and, on the other hand, the pro-plaintiff law of either:(1)the state of the products
acquisition, or (2) the state with the defendant-affiliating contacts (the place of manufacture
and/or the defendants principal place of business).
Table30. Cases Applying theProDefendant Law ofa
PlaintiffAffiliatedState
Pattern
Ps domicile
Injury
Acquisition
Manufacture
Ds PPB
24b. Inverse
conflict
Pro-D
Pro-D
Pro-P, or not
pleaded
Pro-P, or not
pleaded
Pro-P, or not
pleaded
In Denman v. Snapper Division,272 which was decided under the Restatement (Second)s
lex loci presumption, the choice was between the pro-defendant law of North Carolina, which
was the plaintiff s home-state and place of injury, and Mississippi, the state of the acquisition
of the product.273 The plaintiff s action in Mississippi was timely under that states statute of
limitation, but was barred by North Carolinas statute of repose. The court noted that under
Mississippi conflicts law, the law of the place of injury is presumed to apply unless another
state has a more significant relationship.274 The court concluded that the sale of the mower in
Mississippi was an insufficient basis for finding that Mississippi ha[d]a more significant relationship than North Carolina, and that the fact that the mower entered the stream of commerce in Mississippi [did] not tip the balance in favor of applying Mississippi law.275
McKinnon v. F.H. Morgan & Co.276 reached the same result under the lex loci presumption of Restatement (Second) Section 146. The plaintiff, a Qubec domiciliary, was injured in
Qubec, while riding a bicycle sold and serviced by the defendant in Vermont. The plaintiff
invoked Vermonts pro-plaintiff law, but was unable to rebut the presumption of Section 146 in
favor the place of injury, Qubec. The court applied the law of Qubec because, in addition to
being the place of injury, it was also the plaintiff s domicile, and Vermont did not have more
significant contacts.
272. 131 F.3d 546 (5th Cir. 1998), rehg denied en banc, 137 F.3d 1353 (5th Cir.1998).
273. A Mississippi domiciliary purchased a lawnmower in Mississippi, which he lent to his son, who
used it in North Carolina and was injured there. The mower was manufactured in Georgia by defendant,
a Georgia-based corporation, but neither party urged the application of Georgialaw.
274. Denman, 131 F.3d at550.
275. Id. For cases reaching the opposite conclusion on this point, see Sanchez and Long, discussed supra
at 29697.
276. 750 A.2d 1026 (Vt.2000).
320
Land v. Yamaha Motor Corp., U.S.A.277 was decided under Indianas significant-contacts
approach, which allows departure from the lex loci delicti only when the locus delicti has an
insignificant relationship to the lawsuit. The court applied Indianas statute of repose, barring
the action of an Indiana domiciliary, injured in Indiana by a product manufactured in Japan
by a Japanese manufacturer. The product was sold through a Kentucky dealer to an Indiana
domiciliary, who, many years later, sold it to another Indiana domiciliary. The court found
that Indianas relationship was not insignificant, because Indiana was the place of the injury,
the domicile of the victim and the products owner, and the place where the product had been
used for more than a decade.278
In Montgomery v.Wyeth,279 the plaintiff purchased and was prescribed a drug in Georgia, but
she used it in her home state of Tennessee, where she later developed a fatal disease linked to
the drugs side effects. Her Tennessee action against the New Jersey manufacturer was barred by
Tennessees statute of repose, but it was not barred by Georgias corresponding statute. Relying
on the Restatement (Second), the court held that Tennessee had the most significant relationship and its statute governed, barring the action.280 The plaintiff argued that Georgia had a more
significant relationship, because her doctors relied on the manufacturers inadequate warnings in
Georgia. The court rejected the argument on the ground that the plaintiff offered no proof that
her doctors actually relied on those warnings.281 The plaintiff also argued that Tennessee had no
interest in depriving its domiciliary of a remedy against an out-of-state manufacturer. The court
rejected this argument as well, reasoning that Tennessee had a strong interest in applying its
statute of repose in products liability actions, even when that forecloses a claim by a Tennessee
plaintiff.282 Tennessees interest was not in compensating its resident for harm done to her,283
said the court, but rather in protecting manufacturersindeed, all manufacturersin hopes
of reducing product prices for Tennessee consumers. Its statute of repose was not inapplicable
277. 272 F.3d 514 (7th Cir.2001).
278. For other cases applying the statute of repose of the victims domicile and place of injury, see Crouch
v. General Elec. Co., 699 F. Supp. 585 (S.D. Miss. 1988) (applying North Carolinas statute of repose to
bar an action filed by a North Carolina plaintiff, who was injured in that state by a defective component of a helicopter manufactured in Massachusetts); Alves v. Siegels Broadway Auto Parts, Inc., 710
F.Supp.864 (D. Mass. 1989)(action filed by the survivors of a Connecticut domiciliary, who was killed in
that state by a product manufactured by a Wisconsin manufacturer in Wisconsin and sold by defendant, a
Massachusetts corporation, to the victims Massachusetts employer in Massachusetts; the seller inpleaded
the manufacturer for contribution and indemnification; applying Connecticuts statute of repose, barring
the action, which was not barred by Massachusetts statute of limitation, because Massachusetts did not
have a more significant relationship with the case than Connecticutdid).
279. 580 F.3d 455 (6th Cir. 2009), rehg and rehg en banc denied (Oct. 23, 2009)(decided under Tennessee
conflictslaw).
280. See id. at 460 (Tennessee has the most significant relationship to the parties and the occurrence
because Tennessee is where [plaintiff] sustained her injury, Tennessee is her place of domicile and residence, Tennessee is where she intended to and did use almost all of her [drug] tablets, and Tennessee
is the state where she was diagnosed and treated for her injury. [Defendant] also conducted business in
Tennessee, where [the drug] was expected to be used by customers like [plaintiff], and where it was in fact
sold during most of the time [plaintiff] usedit.).
281. Id. at461.
282. Id. at463.
283. Id. at462.
Products Liability
321
merely because the product was not purchased in Tennessee, said the court, because [t]o the
extent Tennessee wants to protect [drug] manufacturers and sellers from product liability costs,
the statute advances that goal.284 The court posited that while Georgia does have an interest in
regulating a product sold there, Tennessee has an interest in regulating a product used here; it
chooses to effect that interest by strictly limiting the time that actions can be brought.285
Mitchell ex rel. Mitchell v.McNeilus Truck & Manufacturing, Inc.286 reached the same result
under Michigans lex fori approach, except that, once again, the court did not apply Michigan
law, which disfavored the Michigan defendant. Instead, it applied Ohios statute of repose,
which barred the action of an Ohio domiciliary, who was injured in that state.287 The court
reasoned that Ohio had an interest in an accident that occurred within its borders and injured
one of its citizens.288 Apparently, the court did not realize that Ohio law did not protect the
only Ohio citizen involved in this casethe injured plaintiff. Instead, the court invoked an
Ohio interest in protecting the Minnesota manufacturer, who employed 15 people in Ohio
and paid over $700,000 in wages to Ohio employees.289 The court also reasoned that the Ohio
plaintiff was not entitled to the protection of the law of his employers state, Michigan, because
Michigan had no interest in providing greater rights of tort recovery to a nonresident than
those afforded to that resident by his or her home state.290
The dissent criticized the majority for erroneously focusing on the place of the accident,291
and for fail[ing] to acknowledge Michigans interest in applying its product liability laws to a
manufacturer that sold a product in Michigan to a Michigan business that licensed and insured
the product under Michigan law, and now pays Michigan workers compensation benefits to its
injured employee.292 The dissent reasoned that Ohio had no real interest in applying its statute
of repose, because the statute was enacted to protect Ohio product manufacturers,293 and
[n]o Ohio manufacturer is at risk of bearing liability in this case.294 In contrast, Michigan had
284. Id.
285. Id.
286. 2012 WL 5233630 (Mich. Ct. App. Oct. 23, 2012)(unpublished).
287. The plaintiff was injured while working for his Michigan employer as a garbage truck driver. The
injury was caused by a rear XC loader, which is a device for picking up and emptying dumpsters into the
back of the truck. AMinnesota-based company manufactured the device in Minnesota and sold it to the
plaintiff s employer in Michigan. Neither Minnesota nor Michigan had a statute of repose, but the court
discussed only Ohio and Michiganlaw.
288. McNeilus, 2012 WL 5233630at*5.
289. Id.at*6.
290. Id.at*7.
291. See id. at *11 (Gleicher, P.J., dissenting) ([T]he majoritys focus on the Ohio accident venue is misplaced as the accident location bears no relationship to the purposes of Ohios statute of repose. Because
plaintiff s product liability claim centers on whether the rear loader was defectively designed, the place
of injury is not an important consideration. [The defendant] delivered a garbage truck in Michigan to a
Michigan employer. The truck bore a Michigan license plate and had to meet Michigans road requirements. That the truck was also used in Ohio does not give rise to a legal interest relevant to a product
liability action, which involves design, manufacture and sale.).
292. Id. at*10.
293. Id.
294. Id. at*12.
322
a direct and compelling interest in deterring the sale of unsafe products to consumers within
its boundaries and encouraging manufacturers to design and sell safe products.295
In Normann v. JohnsManville Corp.,296 which was decided under Pennsylvanias mixed
approach, the court applied New Yorks pro-defendant law to the action of a Pennsylvania
resident, who was exposed to defendants asbestos products while employed and domiciled in
NewYork. NewYork, but not Pennsylvania, allowed defendant to assert the state of the art
defense. Reasoning that NewYork would have an interest in making this defense available to
foreign corporations doing business in New York, the court applied New York law, because
NewYork had a closer relationship, and by far a greater interest, than Pennsylvania.297
In Deemer v.Silk City Textile Machinery Co.,298 the court applied the law of North Carolina,
the plaintiff s home state and place of injury, rather than the law of New Jersey, the place of
manufacture. Unlike New Jersey, North Carolina had not adopted the doctrine of strict liability
in products-liability cases. The court reasoned, inter alia, that the application of New Jersey law
would deter the conduct of manufacturing operations in New Jersey and cause an unreasonable increase in litigation, which would unduly burden the New Jersey courts.
In Egan v.Kaiser Aluminum & Chemical Corp.,299 the forum state, Louisiana, was also the
place of the victims domicile and place of injury. Its law prohibited punitive damages, whereas
the state of manufacture, Ohio, allowed them. The court decided to apply Louisiana law, not
because of any concern for protecting the defendant, but rather in order to protect the forums
judicial system! Said the court: Louisianas interest lies in the protection of its judicial system, rather than domestic defendants, from what it might consider inherently speculative
awards.300 This statement was taken from earlier Louisiana decisions, which quoted even earlier Louisiana decisions, none of which, however, have explained why punitive damages awards
are any more speculative than, say, awards for a deceased persons pain and suffering, or why
the integrity of Louisianas judicial system has not been tarnished by the fact that, since 1984,
Louisianas substantive law has imposed punitive damages in other categories of cases.301
b. Plaintiffs Domicile and Product Acquisition

another state by a product acquired in his or her home-state. Depending on which laws the
parties invoke, the courts choice is between the pro-defendant law of the victims home-state
and place of acquisition, on the one hand, and, on the other hand, the pro-plaintiff law of
either:(1)the state of injury, or (2)the state with the defendant-affiliating contacts (place of
manufacture and/or the defendants principal place of business).
295. Id.
296. 593 A.2d 890 (Pa. Super. 1991), appeal denied, 607 A.2d 255 (Pa.1992).
297. Norman, 593 A.2d at 894. The defendant was an Ohio corporation, but the opinion did not discuss
Ohiolaw.
298. 475 A.2d 648 (N.J. Super.1984).
299. 677 So. 2d 1027 (La. App.1996), writ denied, 684 So. 2d 930 (La.1996).
300. Egan, 677 So. 2d at1038.
301. See S.Symeonides, Choice of Law in the American Courts in 1996:Tenth Annual Survey, 45 Am.
J.Comp. L. 447, 474 (1997).
Products Liability
323
Table31. Cases Applying thePro-Defendant Law ofa

Plaintiff-AffiliatedState
Pattern
Ps domicile
Injury
Acquisition
Manufacture
Ds PPB
24c. Inverse
conflict
Pro-D
Pro-P or not
pleaded
Pro-D
Pro-P or not
pleaded
Pro-P or not
pleaded
Maly v.Genmar Industries, Inc.302 is one of several cases that applied the pro-defendant law
of a state that was the plaintiff s domicile and the place of the products acquisition, but not
the place of the injury. In Maly, that state was Illinois, which had a statute of repose barring
the action. The injury occurred in Wisconsin, and its law did not bar the action. The manufacturer was a Florida corporation, but the court did not mention the place of manufacturing,
apparently because of the courts conclusion that the critical conduct was the placement of a
defective product in the stream of commerce,303 which occurred in Illinois, where the victim
purchased the product. Confining its analysis to the policies of Illinois and Wisconsin, the
court recognized quickly that they were contradictory. Illinoiss policy was pro business: to
reduce the cost to manufacturers and distributors of doing business in Illinois by cutting legal
costs caused by old strict liability lawsuits which are particularly difficult to defend due to
loss of witnesses, poor record keeping, and changes in legal and technical standards on products.304 Wisconsins policy, on the other hand, favor[ed] consumers over manufacturers, and
apparently d[id] not view proliferating products liability litigation a sufficient reason to deny
consumers a cause of action in strict liability for injuries resulting from defective old products.305 After examining the contacts of the two states, the court concluded that Illinois had
the most significant relationship, because [t]he conduct complained of happened in Illinois to
an Illinois resident and the relationship of the parties occurred in Illinois.306 Thus, the court
concluded, [t]here is no reason to rank Illinois pro-business tort policy as less significant than
Wisconsins pro-consumer policy.307
302. 1996 WL 28473 (N.D. Ill. Jan. 23,1996).

303. Id.at*2.
304. Id.
305. Id.
306. Id.
307. Id. For a similar statute of repose case, see Bonti v. Ford Motor Co., 898 F. Supp. 391 (S.D. Miss.
1995), aff d mem., 85 F.3d 625 (5th Cir. 1996). This case arose out of a single-car accident in South
Carolina, which resulted in the death of a North Carolina domiciliary. The car was designed by Ford in
Michigan, assembled in Kentucky, and sold to the plaintiff in North Carolina. The plaintiff sued Ford in
Mississippi, which had no contacts with the case other than the fact that Ford did business in that state.
The action was timely under Mississippi law, but it was barred by North Carolinas statute of repose and
by South Carolinas statute of limitations. Following the Restatement (Second), the court concluded that
North Carolina had the most significant relationship, and it applied North Carolinas statute of repose,
thus barring the action.
324
Another example is Garcia v. General Motors Corp.308 In that case, the plaintiffs were
Arizona domiciliaries who were injured in an Idaho accident, while riding in a car they rented
in Arizona. The Michigan-based defendant manufactured the car in Michigan, but neither
party pleaded Michigan law. Thus, the conflict was between the laws of Idaho, which did not
allow evidence that the plaintiff was not wearing a seat belt, and Arizona, which permitted such
evidence. The court held that Arizona had an interest in encouraging its residents to wear
seatbelts even outside its borders, as injuries resulting from not using seatbelts may well require
medical care upon the residents return to Arizona.309 The court also reasoned that it would
be incongruous to allow Idahos desire to fully compensate nonresident Arizona plaintiffs to
control in an Arizona court, when Arizona courts would permit the jury to consider whether
to reduce the recovery of Arizona plaintiffs who fail to wear seatbelts.310
General Motors Corp. v.Eighth Judicial District311 presented the same pattern, at least with
regard to one defendant. The conflict was between the state of injury, Nevada, and the state in
which the plaintiff acquired the product, Arizona. Arizona was also the plaintiff s domicile and
the domicile of one of the defendants, the dealer who sold the product (a car) to the plaintiff.
The other defendant was General Motors, a Michigan-headquartered corporation, which manufactured the car in Michigan. The Nevada Supreme Court began its choice-of-law analysis
with the lex loci presumption of Section 146 of the Restatement (Second), and it distinguished
between the two defendants. General Motors, who argued for the application of Arizona (but
not Michigan) law, failed to present any evidence that Arizona had a more significant relationship than Nevada. Consequently, the court held that Nevada law should govern the plaintiff s
action against General Motors.
In contrast, the car dealer presented evidence, or at least an argument, that Arizona had
a more significant relationship than Nevada, thus triggering consideration of Section 6 of the
Restatement (Second), in order to determine whether Arizonas relationship was, in fact, more
significant. The court concluded that it was. Both the dealer and the victim were Arizona domiciliaries, and their seller-buyer relationship was formed in that state, thus creating the justified expect[ation] that the relationship would be governed by Arizona law.312 Unlike Nevada,
Arizona allowed comparative fault defenses to strict liability claims, such as product misuse (in
308. 990P.2d 1069 (Ariz. App.1999).
309. Id. at1078.
310. Id. In Thornton v.Sea Quest, Inc., 999 F.Supp.1219 (N.D. Ind. 1998), the victim, an Indiana domiciliary, died in Arkansas as a result of a malfunction of scuba diving equipment, which was manufactured
in France and sold in Indiana by a California manufacturer and distributor. The issue was wrongful death
recovery, and Arkansas law was more favorable to the plaintiffs than Indiana law. Neither party pleaded
French or California law. The court found that Indiana had a more significant relationship than Arkansas,
as well as a strong interest in preventing the sale of supposedly defective products within its borders. Id.
at 1224. In Thompson v.Reinco, Inc., 2004 WL 1426971 (Del. Super. June 15, 2004), the court applied the
law of the place of the products delivery, in a case in which the product was manufactured in New Jersey,
sold in Pennsylvania, delivered in Delaware, and caused injury in Maryland to a Delaware domiciliary.
Thus, the court concluded, it was the delivery of the product to a Delaware resident for use in Delaware
that provides the pivotal moment which ultimately brought all the parties together. Having determined
that the place of injury was fortuitous, the relationship between all the parties is predominantly centered
on the delivery and intended use in Delaware. Id.at*2.
311. 134P.3d 111 (Nev.2006).
312. Id. at119.
Products Liability
325
this case, the victims driving in excess of the speed limit). Thus, the court concluded, Arizona
had an interest in seeing that its car dealers who operate solely in Arizona receive some protection in strict liability claims.313 The court reasoned that, although Nevada had an interest in
protecting tourists who travel its roads, this interest carr[ied] less weight when applied to
an individual with little contact with Nevada who is seeking damages from a resident of the nonforum state for claims that arose out of that state.314 Therefore, the court concluded, on balance,
Arizonas interest in having its law applied to the causes of action that an Arizona resident plaintiff raised against an Arizona car dealer outweighs Nevadas interest in applying its own law.315
c.Injury and Product Acquisition

another state by a product acquired in the latter state. Depending on which laws the parties
invoke, the courts choice is between the pro-defendant law of the state of injury and place of
acquisition, on the one hand, and, on the other hand, the pro-plaintiff law of either: (1) the
victims home-state, or (2)the state with the defendant-affiliating contacts (the place of manufacture and/or the defendants principal place of business).
Table32. Cases Applying thePro-Defendant Law ofa
Plaintiff-AffiliatedState
Pattern
Ps domicile
Injury
Acquisition
Manufacture
Ds PPB
24d. Inverse conflict
Pro-P, or not
pleaded
Pro-D
Pro-D
Pro-P, or not
pleaded
Pro-P, or not
pleaded
Burnett v.Columbus McKinnon Corp.316 is one of the cases that applied the pro-defendant
law of a state that was the place of injury and the products acquisition, but not the victims domicile. The product in question was a hook manufactured in NewYork and used to load steel coils
in Indiana. The plaintiff, an Ohio domiciliary who was then-working for his Indiana employer,
was injured when a steel coil fell from the hook and struck him. He sued the NewYork manufacturer in NewYork. The laws of NewYork and Indiana differed in two respects:(1)under
New Yorks pure comparative negligence rule, a plaintiff s fault proportionally diminished,
but it did not eliminate the plaintiff s recovery, unless the plaintiff was solely at fault; under
Indiana law, a plaintiff could not recover if the percentage of fault attributable to him or her
was greater than 50percent of the total fault involved in the accident; and (2)under NewYork
law, comparative fault could not be apportioned against the employer of an injured worker
covered by workers compensation, unless that worker suffered a grave injury as defined by
313. Id.at118
314. Id.
315. Id.
316. 887 N.Y.S.2d 405 (N.Y. App. Div.2009).
326
New Yorks workers compensation law; under Indiana law, an employer did not enjoy such
protection, even though the employer was immune from suit and not liable for damages.
Regarding both these issues, the court concluded that the conflicting laws were loss-
allocating, rather than conduct-regulating. Thus, the resulting conflict was to be resolved under
the Neumeier rulesspecifically, Rule 3.The defendant argued for the application of Indiana
law, under the lex loci delicti part of Rule 3, while the plaintiff argued for the application of
New York law, under the proviso contained in Rule 3. The court agreed with the defendant,
reasoning, inter alia, that the plaintiff had purposely associated himself with Indiana, and
the Indiana legislature had made a policy judgment to bar a plaintiff who was injured in an
accident from recovering damages in cases in which he or she bears more than 50% of the
fault.317 Obviously, the same argument could be made against the NewYork manufacturer that
sold its products in Indiana. The court also reasoned that, although the Indiana rule was loss-
allocating, rather than conduct-regulating, it cannot be gainsaid that Indiana has at least some
interest in applying its substantive law to a workplace accident occurring within that state, and
that [t]hat interest outweighs any interest of NewYork in applying its own substantive law in
this case, particularly in light of the fact that NewYork has no interest in applying its laws for
the benefit of nonresidents and to the detriment of its residents.318
Like Burnett, other cases have applied the statute of repose,319 or other pro-defendant
laws,320 of a state that was the place of the injury and the products acquisition (but not the
victims domicile). For some reason, however, the latter cases failed to consider the place of
317. Id. at410.
319. For example, in Romani v. Cramer, Inc., 992 F. Supp. 74 (D. Mass. 1998), the plaintiff was domiciled in Massachusetts, but was employed in Connecticut and was injured there, while using a chair
supplied by his employer. The chair was manufactured by a Kansas corporation, apparently in Kansas,
but neither party urged the application of Kansas law. Connecticut, but not Massachusetts, had a statute
of repose, barring the action. The court found that the plaintiff s domicile in Massachusetts did not give
that state a sufficient interest to override Connecticuts superior interest on all other fronts. Id. at 79.
Connecticuts interest was superior, because Connecticut enacted its statute [of repose] to protect manufacturers from liability for products whose useful lives have expired [and to] encourage[] manufacturers to freely sell products within its borders. Id. at 78. See also Allison v.ITE Imperial Corp., 928 F.2d
137 (5th Cir. 1991)(decided under Mississippi conflicts law; applying Tennessees statute of repose, rather
than Mississippis statute of limitation, which barred the action of a Mississippi plaintiff arising from a
Tennessee injury caused by a defective electrical circuit breaker sold and installed in Tennessee, but manufactured by a Pennsylvania-based defendant in Pennsylvania; the court did not describe Pennsylvania
law); Tanges v.Heidelberg N.Am., Inc., 93 N.Y.2d 48, 710 N.E.2d 250 (N.Y. 1999)(applying Connecticuts
statute of repose, barring an action brought by a NewYork domiciliary, who was injured by a printing
press, while working for his employer in Connecticut).
320. For example, in LeJeune v.BlissSalem, Inc., 85 F.3d 1069 (3d Cir. 1996), a Pennsylvania court refused
to apply the strict-liability law of the victims home-state of Pennsylvania; instead, it applied the negligence law of Delaware, which was the place of the accident and the place of the products acquisition. The
court compared Pennsylvanias interest in protect[ing] its citizens from defective products, id. at 1073,
with Delawares interest in encouraging economic activity in the state and lowering costs to consumers. Id. at 1072. It concluded that, because most of the conduct occurred in Delaware, and because the
occurrence of the injury in that state was not fortuitous, Delawares contacts were qualitatively more
important; thus, Delaware had the greater interest in having its law applied. Id. Similarly, in Cianfrani
v.KalmarAC Handling Systems, Inc., 1995 WL 563289 (D.N.J. Sept. 11, 1995), a New Jersey court refused
to apply the strict-liability law of Pennsylvania, the plaintiff s home-state; instead, it applied Delawares
Products Liability
327
manufacture and confined themselves to choosing between the law of the state of injury and
acquisition, on the one hand, and the law of the victims domicile on the other. Under these
circumstances, the choice of the former law should not come as a surprise.
3. Choice Based ona Single Contact

As noted earlier, few cases apply the pro-plaintiff law of a state that has only one of the five
pertinent contacts. The same is true of cases applying the pro-defendant law of a state that has
only one contact. Besides cases decided under the lex loci delicti rule, either in its traditional321
or in its modern, presumptive iteration,322 few cases apply the pro-defendant law of the state of
injury in the absence of other contacts.323
In In re Disaster at Detroit Metropolitan Airport on August 16, 1987,324 the state of injury,
Michigan, did not allow punitive damages. California, the place of the airplanes manufacture also did not allow them, but Missouri, the manufacturers principal place of business,
did. The court concluded that a true conflict existed between California law, which sought to
protect conduct in that state, and Missouri law, which sought to ensure responsible, corporate
decision-making from corporations with their principal place of business in that state. The
court resolved the conflict by resorting to the law of the state of the injury, despite having earlier recognized that that state was uninterested.
In Price v. Litton Systems, Inc.,325 the Fifth Circuit upheld the district courts application
of Alabamas pro-defendant law in products liability actions arising from a helicopter crash
negligence law to an action arising from an accident at the plaintiff s Delaware employment site. The
accident was caused by a defective forklift, leased by the plaintiff s employer in Delaware. Although recognizing Pennsylvanias interest in protecting its domiciliary plaintiff, the court held that, because this
case involved a question of liability, rather than damages, Delaware had a greater interest in defining the
circumstances under which people who do business in or ship goods to Delaware will be exposed to liability. Id. at *6. See also Calhoun v.Yamaha Motor Corp., U.S.A., 216 F.3d 338 (3d Cir. 2000), cert. denied,
531 U.S. 1037 (2000) (action by Pennsylvania plaintiffs for injury sustained in Puerto Rico, while using a
rented Japanese-made watercraft; holding that the plaintiffs claims for punitive damages were governed
by Puerto Rican law (which did not allow such damages), because Puerto Ricos interest in regulating
the activity that occurs in its territorial waters is more dominant. Id. at 348); Schmidt v. DuoFast,
Inc., 1995 WL 422681 (E.D. Pa. July 11, 1995)(applying New Jerseys pro-defendant law to the claim of
a Pennsylvania worker, injured in a New Jersey construction accident, caused by a tool purchased from
Pennsylvania, but shipped directly to New Jersey).
321. See, e.g., Fitts v.Minn. Mining & Mfg. Co., 581 So. 2d 819 (Ala. 1991); Mullins v.M.G.D. Graphics
Sys. Group, 867 F.Supp.1578 (N.D. Ga. 1994); Thornton v.Cessna Aircraft Co., 886 F.2d 85 (4th Cir.1989).
322. See Flynn v. Mazda Motors of Am., No. 4:09CV2069 HEA, 2010 WL 2775632 (E.D. Mo. July 14,
2010) (applying Kentucky law to a case arising from a Kentucky car the victim had purchased in his
home-state of Missouri, because the plaintiff was unable to show that Missouri had a more significant
relationship, under the Restatement (Second)).
323. See also Taylor v. Mooney Aircraft Corp., 265 Fed. Appx. 87 (3d Cir. Feb. 25, 2008) (decided
under Pennsylvania conflicts law; applying Georgias statute of repose to bar an action brought by the
estates of the Georgia victims, arising from a Pennsylvania crash of an airplane manufactured in Texas;
Pennsylvania law did not bar the action).
324. 750 F.Supp.793 (E.D. Mich.1989).
325. 784 F.2d 600 (5th Cir.1986).
328
in Alabama, during a training mission from an Alabama military base. Companies based in
NewYork and Delaware designed the allegedly defective equipment in California and manufactured it in Virginia. Texas and Iowa were the permanent domiciles of the two decedents
involved. Following the Restatement (Second)s most significant relationship test, the court
found that the place of injury was a significant factor, because the occurrence of the injury in
Alabama was not fortuitous, as the helicopters flight was confined to Alabama. The court noted
that Alabama was also the decedents residence and the center of the parties relationship.
Finally, one case applied the lex loci solely because of its neutrality toward all parties and
substantive laws. In Ness v.Ford Motor Co.,326 the court, after considering other options, concluded that [s]ometimes an apparently arbitrary choicelike lex loci delictiis a reasonable
way of dealing with the problem of conflict of interest between states[.]327 The court recognized that the state of the plaintiff s domicile had an interest in seeing its citizens adequately
compensated for their injuries, but it also noted that the state of manufacture has an interest
in seeing that product liability plaintiffs are not overcompensated, resulting in higher insurance
premiums for Michigan manufacturers, higher costs, and lost jobs.328 A rule calling for the
application of the law of the state of manufacture, said the court, would tend to leave victims
undercompensated as states wishing to attract and hold manufacturing companies would raise
the threshold of liability and reduce compensation.329 Likewise, a rule applying the law of the
victims domicile would permit a state with little manufacturing to endow its citizens with
generous protection wherever they choose to travel without picking up any part of the cost.330
After also rejecting the notion of applying the law of the place of the products acquisition
(because (1)products may be resold in other states, and (2)products liability does not require
privity), the court concluded that the rule of lex loci delicti appears less objectionable once it is
understood that there is no alternative that will yield a rational and fair result in all cases[.]331
I V. L AT E N T I N JUR I ES A ND
T H E I S S U E OF T I M E
This chapter has discussed several cases involving injuries that manifest themselves long after
the victim used or was exposed to a product, such a drug or asbestos. As noted at the beginning, American courts continue to be divided in pinpointing the time, and thus the place, of
326. 1993 WL 996164 (N.D. Ill. July 20, 1993)(unpublished). Ness was a products liability action, filed by
an Illinois resident who was injured in an Iowa single-car accident, when the car in which he was riding
as a passenger rolled over. Ford manufactured the car in Michigan, and it was registered and garaged in
Illinois. At the time of the accident, it was driven by another Illinois resident in a trip that began and was
to end in Illinois.
327. Id.at*2.
328. Id.
329. Id.
330. Id.
331. Id. at *3. For an identical holding in another products liability action, see Walters v. Maren Engg
Corp., 617 N.E.2d 170 (Ill. App. 1993) (applying Kansas law to a case arising out of a Kansas injury,
caused by a product manufactured in part in Illinois).
Products Liability
329
the injury. Some courts have held that the injury occurs at the time and place of the exposure,
whereas others have held that the injury occurs at the time and place of manifestation. This
section discusses cases in which the conflict is between the laws of the victims domicile at the
time of exposure and the victims domicile at the time of manifestation.
One example of such a conflict is McCann v.Foster Wheeler LLC,332 in which the conflict
was between the laws of: (1) Oklahoma, where the victim was domiciled at the time he was
exposed to asbestos; and (2) California, where he was domiciled the time he was diagnosed
with mesothelioma, which was attributable to the exposure.333 The exposure occurred while
the victim was installing a large boiler at an Oklahoma oil refinery. The boiler was designed
and manufactured in NewYork by the defendant, a NewYork company. The plaintiff s action
was timely under Californias statute of limitation, but it was barred under Oklahomas 10-year
statute of repose for claims arising from improvements to real property. The California court of
appeals held for the plaintiff, reasoning that California had a strong interest in applying its statute of limitation to provide a forum to a Californian injured in California, whereas Oklahoma
had little countervailing interest to apply its statute of repose for the benefit of a manufacturer
who was not an Oklahoma company and whose conduct occurred, at least in part (the design
of the boiler), outside Oklahoma.
Specifically disagreeing with this assessment of Oklahomas interests, the California
Supreme Court reversed. Drawing from its earlier decision in Offshore Rental Co. v.Continental
Oil Co.,334 the court reasoned that, when a state adopts a policy limiting liability for commercial
activity conducted within the state in order to provide what the state perceives is fair treatment
to, and an appropriate incentive for, business enterprises, the state ordinarily has an interest in
having that policy of limited liability applied to out-of-state companies that conduct business
in the state, as well as to businesses incorporated or headquartered within the state.335 This is
because a state has a legitimate interest in attracting out-of-state companies to do business
within the state, both to obtain tax and other revenue , and to advance the opportunity of
state residents to obtain employment.336 That interest, the court concluded, is equal to its interest in the application of the law to comparable activities engaged in by local businesses[.]337
332. 225P.3d 516 (Cal.2010).

333. The exposure occurred in 1957. The victim remained an Oklahoma domiciliary until 1965, when
he left Oklahoma. In 1975, he settled in California and, in 2005, he was diagnosed with mesothelioma.
334. 583P.2d 721 (Cal.1978).
335. McCann, 225P.3d at530.
336. Id.
337. Id. The supreme court also disagreed with the court of appeals conclusion that Oklahomas interest
in applying its statute of repose was negated by the fact that the design and manufacture of the boiler
occurred in NewYork, rather than in Oklahoma. The supreme court reasoned that the statute of repose
was intended to protect
not only construction-related businesses that engage in their activities at the Oklahoma site of
the improvement, but also commercial entities . . . performing architectural and other design-
improvement work, that conduct their activities away from the location of the improvement but
whose potential liability flows from a plaintiff s interaction with, or exposure to, the real property
improvement in Oklahoma.
Id. at531.
330
After agreeing with the court of appeals regarding the existence of a California interest,
the supreme court proceeded to resolve the resulting true conflict by weighing the impairment
that the two states interests would suffer from the non-application of their respective laws.
The court concluded that the non-application of Oklahomas statute of repose would more
significantly impair Oklahomas interests in protecting the defendant than the non-application
of Californias statute of limitation would impair Californias interests in protecting the plaintiff.
Regarding the impairment of Oklahomas interests, the court attributed critical significance
to the fact that the plaintiff s exposure to asbestos occurred in Oklahoma when he was domiciled in Oklahoma. The court notedthat:
a jurisdiction ordinarily has the predominant interest in regulating conduct that occurs within its
borders . . . and in being able to assure individuals and commercial entities operating within its
territory that applicable limitations on liability set forth in the jurisdictions law will be available
to those individuals and businesses in the event they are faced with litigation in the future.338
That assurance would be destroyed, the court reasoned, if the application of Oklahomas
business-friendly law would be defeated by the plaintiff s subsequent move to a plaintiff-
friendly state, even if, as in this case, such a move is not motivated by a desire to take advantage
of the latter states law and does not amount to forum shopping.339 The court concludedthat
[b]ecause a commercial entity protected by the Oklahoma statute of repose has no way of knowing or controlling where a potential plaintiff may move in the future, subjecting such a defendant
to a different rule of law based upon the law of a state to which a potential plaintiff ultimately
may move would significantly undermine Oklahomas interest in establishing a reliable rule of
law governing a businesss potential liability for conduct undertaken in Oklahoma.340
In contrast, the court concluded that the non-application of California law would effect a
far less significant impairment of Californias interest.341 This is because Californias interest
in applying its pro-plaintiff law for the benefit of a California plaintiff in a case in which the
defendants allegedly tortious conduct occurred in another state is less than its interest when
the defendants conduct occurred in California.342 Again analogizing to and quoting from
Offshore Rental, the court reasonedthat
because plaintiff in the present case was in (and, indeed, a resident of) Oklahoma at the time of
his exposure to asbestos, . . . it is reasonable to conclude that he should not expect to subject
defendant to a financial hazard that [Oklahoma] law had not created, and that California has a
lesser interest in applying its law in that setting than it would in a case in which a defendant is
responsible for exposing a plaintiff to asbestos within California.343
338. Id. at 534 (internal citations and quotation marks omitted).
339. Id.
340. Id. at 53435.
341. Id. at535.
342. Id.
343. Id. (internal quotations are from the Offshore Rental case, which in turn quoted from D. Cavers, The
Choice-of-Law Process 147 (1965)).
Products Liability
331
The court concluded that, based on California choice-of-law precedents,

when the law of [an]other state limits or denies liability for the conduct engaged in by the defendant in its territory, that states interest is predominant, and Californias legitimate interest in
providing a remedy for, or in facilitating recovery by, a current California resident properly
must be subordinated because of this states diminished authority over activity that occurs in
another state.344
On the plus side, McCann illustrates that, in the hands of erudite and enlightened judges,
interest-
analysis/
comparative-
impairment is capable of shedding the pro-
forum and pro-
recovery bias, which characterized it in Curries original conception. The McCann court
applied Oklahomas pro-defendant law, favoring an out-of-state defendant, at the expense of a
California plaintiff.
But, on the minus side, the California court was overly solicitous of the out-of-state defendants expectations and less concerned about protecting the California plaintiff, when the court
reasoned that the defendant had no way of knowing or controlling where a potential plaintiff
may move in the future, and that applying the law of the plaintiff s after-acquired domicile
would undermine Oklahomas interest in establishing a reliable rule of law governing a businesss potential liability for conduct undertaken in Oklahoma.345 It is worth noting that, in
1957, when the defendant engaged in the particular conduct, the defendant could not have
relied on Oklahomas statute of repose, which was not enacted until 21years later (in 1978).
True enough, in 1957, the defendant also was likely unaware of the hazards associated with
asbestos. But the fact remains that the 1978 enactment of Oklahomas statute of repose retroactively shielded the out-of-state defendant from liability, and it extinguished the cause of action
of a plaintiff (who was no longer an Oklahoma domiciliary, but had become a California domiciliary) before he ever had a chance to know of it. One could argue that, if Oklahoma had an
interest in protecting the defendants reliance on Oklahoma law, California also had an interest in adhering to the values embodied in its own statute of limitation, which was specifically
applicable to injuries caused by exposure to asbestos and provided that the limitation period
did not commence until the plaintiff knew or should have known that his injury was caused
by such exposure.346
This pro-defendant outcome should dispel any suggestion that the California court follows a disguised better-law or substantivist approach, as some commentators asserted after
Offshore Rental.347 In that case, the court decided not to apply a California rule that the court
characterized as archaic or anachronistic. That characterization, however, simply meant that
Californias interest in applying the rule was relatively weak. It did not mean that the court
344. Id. at536.

345. Supra, text at note340.
346.Ironically, during the pendency of the action, Oklahoma also enacted a statute of limitation
specifically applicable to asbestos claimsalso providing that the limitation period would commence
from the time that the plaintiff knew or should have known of the exposure, rather than from the exposure itself. Unfortunately for the plaintiff, this statute did not resuscitate claims that were already barred
by the statute of repose.
347. See F.K. Juenger, Robert A. Leflars Contribution to American Conflicts Law, 31 S.C. L. Rev. 413,
42122 (1980).
332
preferred the other states law because it was better. Similarly, in McCann, the courts decision
to apply Oklahomas pro-defendant rule did not entail any preference for substantive justice
(or injustice), but was rather motivated by considerations of conflicts justice (or injustice). In
fact, the McCann court reiterated its statement from Offshore Rental and subsequent cases that,
in employing comparative impairment, the court does not weigh the conflicting governmental interests in the sense of determining which conflicting law manifest[s]the better or the
worthier social policy.348
Pounders v.Enserch E & C, Inc.349 was virtually identical to McCann, and it was decided the
same way by the Arizona Supreme Court. The victim was exposed to asbestos at a New Mexico
power plant, where he worked as a welder for a 10-year period. He later moved his domicile
from New Mexico to Arizona, where, 20years later, he was diagnosed with mesothelioma. He
filed a product liability suit in Arizona, which was later continued by his widow, against the
manufacturers of the boilers and pumps used at the plant and against the plant construction
company. New Mexicos 10-year statute of repose barred the action, but Arizonas statute of
limitation did not. The Arizona Supreme Court held that the New Mexico statute applied, barring the action.
The court sided with the view that, in cases such as this, the injury occurs at the time and
place of manifestationin this case, Arizona. However, under Section 175 of the Restatement
(Second), the law of the state of injury applies only if another state does not have a more significant relationship, in light of the contacts listed in Section 145 and the principles of Section
6.The court examined the Section 145 contacts, and it quickly discounted the place of injury
and the victims domicile. The occurrence of the injury in Arizona was fortuitous, the court
reasoned, because the victim could have moved anywhere after leaving New Mexico.350 The
victims domicile in Arizona was also entitled to little weight, said the court, because [he]
could have moved anywhere at any time after his exposure to asbestos.351 Indeed, he could
have, but instead he moved to Arizona, in good faith. He lived there for 20years, unaware of
his latent, and later fatal, injury, and his widow (now the plaintiff) continued to live in Arizona.
After also discounting the place of the relationship contact, because the defendants did not
employ the victim, the court concluded that the only contact that mattered was the place of
conduct, which the court assigned to New Mexico. The court concluded that, as the state of
conduct, New Mexico had the greater interest in the plaintiff s wrongful death claim.352
Then, realizing that such a conclusion could not be based solely on counting (or discounting) physical contacts, the court proceeded to discuss the principles of Section 6. The court
concluded that the only relevant Section 6 principles were the policies of the forum and those
of the other involved state, New Mexico. The court had to acknowledge that the forum state,
Arizona, had an interest in obtaining just compensation for its residents who suffer injury
and deterring wrongs against its citizens.353 But the court concluded that New Mexico had a far
348. McCann, 225P.3d at533.

349. 306P.3d 9 (Ariz.2013).
350. Id.at14.
351. Id.at15.
352. Id.
353. Id. at 16. (citations omitted).
Products Liability
333
greater interest in protect[ing] businesses engaging in the improvement of real property from
liability after a fixed number of years[,]354 including out-of-state companies, such as the defendants, because such protection would advance the opportunity of state residents to obtain
employment and the products and services offered by out-of-state companies.355
In Rice v. Dow Chemical Co.,356 the plaintiff was exposed to an herbicide while he was
domiciled and working in Oregon, but he moved his domicile to Washington before the injury
manifested itself. His action was timely under Washingtons 12-year statute of repose, but it
was barred by Oregons 8-year statute of repose.357 The court concluded that the Oregon statute applied, because Oregon had a more significant relationship than Washington did: The
relationship between the parties occurred in Oregon, the damaging product was placed in the
stream of commerce and sent to Oregon, at the time of the injurious contact Plaintiff lived
in Oregon, and Plaintiff was exposed to the chemicals at work while employed in Oregon.358
After rejecting the plaintiff s argument that the manifestation of the disease in Washington
would make that state the place of the injury, the court examined the respective interests of
the two states, and it concluded that such an examination supported the application of Oregon
law:Oregons interest in providing repose for manufacturers doing business in Oregon and
whose products are used in Oregon359 was not extinguished by the plaintiff s subsequent move
to Washington. Although Washington had an interest in protecting its residents, residency in
the forum state alone has not been considered a sufficient relationship to the action to warrant
application of forum law.360 The court reasoned that [a]pplying Oregon law achieves a uniform result for injuries caused by products used in the state of Oregon and predictability for
manufacturers whose products are used or consumed in Oregon.361
In In re New York City Asbestos Litigation,362 the victim used the injury-causing product
(talc powder) for 11 years while living in Michigan, 2 years while living in New York, and
2 years while living in California. She stopped using the product 20 years before she moved
354. Id.
356. 875P.2d 1213 (Wash.1994).
357. Neither party offered evidence regarding the place of design, testing, or manufacture of the product,
or of the defendants principal place of business or state of incorporation. See id.1218.
358. Id.
359. Id. at1219.
360. Id.
361. Id. For another case that also discounted the plaintiff s post-injury change of domicile to the forum
state, see Nesladek v.Ford Motor Co., 46 F.3d 734 (8th Cir.1995), cert. denied, 516 U.S. 814 (1995). In that
case, the plaintiff candidly admitted that Minnesotas pro-plaintiff law was part of the reason she decided
to move to Minnesota from Nebraska, after an accident in the latter state, which caused the death of her
son. Her action was barred by Nebraskas 10-year statute of repose, but it could have been maintained
under Minnesotas useful life statute. The defendant, Ford, did business in Minnesota, and a critical
component of the car, which caused the Nebraska accidentthe transmission gear-selection system
was installed in the car in Fords assembly plant in Minnesota. The court held that Nebraskas statute of
repose applied, and thus it dismissed the action. It noted that [b]ecause of the distinct presence of forum
shopping in this case, we have good reason to believe that the balance of interests [and the other choice-
influencing considerations] favor application of Nebraska law. 46 F.3d at 740. Adissenting judge accused
the majority of offer[ing] a sanction or punishment rather than an analysis as to choice of law. Id. at741.
362. 921 N.Y.S.2d 466 (N.Y. Sup.2011).
334
to Oregon, where she was diagnosed with mesothelioma. Her estate sued the NewYork manufacturer in New York.363 The court found that the injury occurred not when the decedent
was exposed to the product, but rather when the illness manifested itself, which occurred in
Oregon where she was diagnosed with mesothelioma. After all, that is when and where the
magic last event occurred. The court supported its conclusion by reciting one of the First
Restatements infamous illustrations involving deleterious substances.364 The court held that
Oregon law, including its cap on damages, governed the action under the third Neumeierrule.
In Wyeth v.Rowatt,365 the plaintiffs, Nevada domiciliaries, were diagnosed with breast cancer
after using the defendants estrogen replacement drugs while living in other states. The lower
court found that the injury occurred in Nevada, and it applied Nevada law. The defendant
appealed, arguing that the injury occurred in the other states, because the disease began in those
states. The Nevada Supreme Court affirmed. Noting that until a slow-developing disease is
detected, there is no legally compensable injury to sue upon[,]366 the court concluded that the
place of injury is the state where the slow-developing disease is first ascertainable, which is the
last event necessary for a claim against a tortfeasor.367 Under Section 146 of the Second Conflicts
Restatement, the applicable law was the law of the state of injury, unless another state had a more
significant relationship with the alleged tortious conduct and the parties. In this case, the court
concluded that no other state had such a relationship, and, in fact, Nevada itself was the state that
had the most significant relationship, given its multiple and sustained contacts with the parties.
In Robinson v.McNeil Consumer Healthcare,368 the product in question was a nonprescription
drug. The plaintiff bought it in Georgia while she was domiciled in Virginia, where she used it
and suffered an immediate and severe adverse reaction. Her situation continued to worsen after
she moved her domicile to Illinois, where she later sued the manufacturer. Under Virginia law, the
plaintiff s contributory negligence, even if slight, would completely bar her recovery. Under Illinois
law, the plaintiff s contributory negligence would bar recovery only if it exceeded the negligence of
the defendant. The trial court, applying Virginia law, held for the defendant, after finding that the
plaintiff was contributorily negligent and without comparing her negligence to that of the defendant.
In an opinion authored by Judge Posner, the Seventh Circuit affirmed. The court rejected
the plaintiff s argument that, because her injury continued and worsened after her move to
363. After unsuccessful treatment, the plaintiff ended her life in Oregon, under the supervision of a
physician, pursuant to the Oregon Death with Dignity Act (ODWDA). Under NewYork law, a physician-
assisted suicide is a crime, and it could be considered an intervening cause, precluding a wrongful death
action. However, the ODWDA specifically provides that a suicide under the Act does not preclude civil
claims the decedent may have had. On the other hand, another Oregon statute limited the amount of
non-economic damages in personal injury or wrongful death actions to $500,000. NewYork law did not
impose such a limit. Predictably, the decedents estate invoked the first Oregon statute, but not the second,
arguing instead that NewYork law should govern the amount of damages. The NewYork court noted the
estates strategic choice, but it went along and focused on the question of damages.
364. See Asbestos, 921 N.Y.S.2d at 474 (Where a person causes another voluntarily to take a deleterious
substance which takes effect within the body, the place of wrong is where the deleterious substance takes
effect and not where it is administered. (quoting comment under Section 377 of the First Restatement)).
365. 244P.3d 765 (Nev.2010).
366. Id. at 776 (footnote omitted).
367. Id.
368. 615 F.3d 861 (7th Cir.2010).
Products Liability
335
Illinois, Illinois law should govern. [T]o make the continuation or exacerbation of an injury a
basis for applying Illinois tort law[,] said the court, would open vistas of forum shopping[,]
because [s]everely injured persons would move to the state whose law was most favorable to
their tort claim[,] in order to take advantage of that law.369 To avoid this incentive to forum
shop, the court concluded, the initial place of the injury is properly deemed the place in
which the injury occurred.370 The court held that the plaintiff did not rebut the Restatement
(Second)s presumption in favor of Virginia law, but it also stated that her case would not
have fared better under Illinois law.371 Finally, responding to the plaintiff s argument that the
drug in question should not have been sold without prescription, Judge Posner asked rhetorically:Should aspirin be salable by prescription only? How about peanuts?372
V. G E N E R A L OBS ERVAT I ONS

A.SUMMARY
This chapter covers products-liability conflicts cases decided between 1990 and 2015, under
all modern choice-of-law methodologies. Aprevious study covering only the period between
1990 and 2005 produced the following quantified findings:373
(1) Choice-of-law methodology played a less significant role in the courts choice of the
governing law than did other factors, especially the number and pertinence of factual
contacts with a givenstate.
(2) Although products travel great distances, most multistate product-liability conflicts in
this period (88percent) involved only two or three states. In a clear plurality of cases
(42percent), the victims domicile, the injury, and the products acquisition were in the
same state. Seventy-nine percent of those cases applied that states law, and, in 76percent of those cases, that law favored the defendant.
(3) In 53percent of the cases, the plaintiffs sued in their home-state, including many cases
in which that state had a pro-defendant law.374
369. Id. at866.

370. Id.
371. See id. at 867 (suggesting that, as between the plaintiff and the manufacturer, [the plaintiff] appears
to have been the party who could have avoided the injury at lower cost[.]).
372. Id. at 868. In Cowley v.Abbott Laboratories, Inc., 476 F.Supp.2d 1053 (W.D. Wis. 2007), the plaintiff did not fare better under Wisconsins better-law approach, but his choice-of-law plea was limited to
applying the pro-plaintiff law of his post-injury domicile (Wisconsin), rather than his domicile at the
time of the injury, North Carolina, where his doctor prescribed him the drug in question. The court
applied North Carolinas pro-defendant rule of the learned intermediary, without discussing the law of
the manufacturers principal place of business (Illinois), or the place of manufacture.
373. See Symeonides, Choice-of-Law Revolution 31938.
374. In 72 percent of the cases in which the plaintiffs sued in their home-state, that state had a pro-
plaintiff law, which the court applied in 68percent of the cases. In the remaining 32percent of the cases,
the forum had a pro-defendant law, which the court applied in 80percent of thecases.
336
(4) Forty-one percent of the cases applied the law of a state that had three contacts, and,
in 68percent of those cases, that law favored the defendant. Forty-two percent of the
cases applied the law of a state that had two contacts and, in 55percent of those cases,
that law favored the plaintiff. Fifteen percent of the cases applied the law of a state that
had only one contact and, in 93percent of those cases, that law favored the plaintiff.
(5) Eighty-eight percent of the cases applied the law of a state with plaintiff-affiliating
contacts (the victims domicile, place of injury, place of products acquisition), but in
52percent of those cases that law favored the defendant.
(6) The cases of the 19902005 period did not support the widely held assumption that,
in their choice-of-law decisions, courts favor plaintiffs as a class. Plaintiffs fared better in state courts (where 58percent of the cases applied a pro-plaintiff law), whereas
defendants fared slightly better in federal courts (where 51percent of the cases applied
a pro-defendant law). On the whole, however, the percentage of cases that applied a
pro-plaintiff law (52 percent) barely exceeded the percentage of cases that applied a
pro-defendant law (48percent).
(7) Courts did not unduly favor the domiciliaries of the forum state (plaintiffs or defendants). Only 41 percent of the cases applied a law that favored the local litigant,375
whereas 35percent of the cases applied a law that disfavored the local litigant.376
(8) Courts did not unduly favor the law of the forum. Although the cases that applied
forum law outnumbered the cases that applied foreign law, the margin was relatively
narrow:56percent to 44percent. Moreover, in most of the cases that applied forum
law, the forum state had significant aggregations of contacts that could justify the
application of its law, even if it was not the forum and regardless of the choice-of-law
theory the court followed.
It is possible that, if one were to add in the mix the cases decided in the 20052015 period,
the above percentages might change. However, it is unlikely that the changes will be significant enough to reverse the above conclusions or to restore some of the assumptions that the
above findings dispel, such as that courts unduly favor plaintiffs, or local litigants, or the law
of the forum qua forum. If anything, it appears that the percentage of cases that applied a pro-
defendant law may have increased in the latter period.
B. THE ROLE OFSTATE POLICIES AND INTERESTS

The cases reviewed in this chapter were decided under a variety of contemporary choice-of-law
methodologies. The majority of these cases subscribe, explicitly or implicitly, to two basic premises:(1)that states do have an interest in the outcome of multistate product-liability disputes
between private parties, and (2)to properly resolve these disputes, one should take account of
these interests, albeit not to the exclusion of other factors, such as factual contacts and party
expectations. Because of this, a casual observer might conclude that Brainerd Curries interest
375. Approximately two-thirds of those cases applied a law that favored a local plaintiff, and one-third
applied a law that favored a local defendant.
376. Approximately two-thirds of those cases applied a law that disfavored a local plaintiff, and one-third
applied a law that disfavored a local defendant.
Products Liability
337
analysis is still alive and well among the courts. However, such a conclusion would be inaccurate, because the courts do not subscribe to two essential ingredients of Curries analysis:his
personal-law principle and the primacy of the lexfori.
As noted earlier, the first principle denotes Curries assertion that a state always has an
interest in protecting its own domiciliaries, but is never interested in protecting similarly situated out-of-staters. As the preceding review documents, very few cases subscribe to this proposition. For example, several cases:(1)applied the forums pro-plaintiff law, even when it favored
a plaintiff who was not a forum domiciliary and disfavored a defendant affiliated with the
forum state; or (2)applied the forums pro-defendant law for the benefit of a non-forum defendant and at the expense of a forum plaintiff.
Curries approach assigned a primary role to the lex fori, because he argued that the law of
the forum should govern, inter alia, in all true conflicts before an interested forum, and in all
no-interest cases. All the cases discussed here fall into one or the other of these two categories
(called direct and inverse conflicts, respectively). Nevertheless, in the 19902015 period,
only 56percent of the cases applied the law of the forum, and this percentage did not rise significantly during the 20052015 period.
For this reason, it is safe to conclude that, although many cases speak the language of interest analysisor, more accurately, policy analysismost cases do not subscribe to the most
controversial specifics of the particular approach that Currie advocated. If anything, most
courts seem to be more impressed with the number of factual contacts that a state has with the
case than with an advocates sophisticated analysis of state interests.
C. THE SIGNIFICANCE OFCONTACTS

Indeed, as Justice Harlan once observed in the context of maritime tort conflicts, many courts
tend to be mesmerized by contacts.377 This is also true in products liability conflicts. It seems
thatregardless of choice-of-law methodologythe more contacts a state has with a case, the
more likely it is that the court will choose that stateslaw.
In any event, unlike other tort conflicts, judicial experience in resolving product liability
conflicts has not produced results that are sufficiently uniform to be susceptible to being recast
into choice-of-law rules. Most notably, courts have not followed the pattern of applying whichever law favors the plaintiff, as they clearly do in other cross-border torts.378 Thus, predictions
about the likely choice-of-law outcome of a product liability conflict remain risky. Nevertheless,
it is possible to proceed along the following assumptions, all of which are rebuttable:
(1) Acourts choice of law is more likely to be based on the relative contacts of the involved
states, rather than on other factors.
(2) Most courts consider the following contacts as relevant:(a)place of injury; (b)domicile of the injured party; (c)place of the acquisition of the product; (d)place of manufacture; and (e)defendants principal place of business.
377. Hellenic Lines v.Rhoditis, 398 U.S. 306, 318 (1970) (Harlan J., dissenting).
378. See supra, at 21824, 24749.
338
(3) When one state has any three of the above-contacts, the court is likely to choose that
stateslaw.
(4) If two states have two of the above-contacts each, a court is likely to choose the law of
the state with the plaintiff-affiliating contacts.
(5) If no state has three contacts, and only one state has two contacts, a court is likely to
choose the law of the state that has two contacts.
Undoubtedly, such a mechanical, numerical list is totally uninspiring. But it is realistic.
D. CHOICE-OF-LAWRULES
The Restatement (Second) does not provide a separate rule for products liability. Several scholars have proposed rules on the subject,379 but only two statesLouisiana and Oregonhave
enacted such rules. The Louisiana rule provides thatsubject to a foreseeability/commercial
unavailability exception, as well as a general escape for exceptional casesthe law of the forum
state governs cases in which: (1) the injury was sustained in that state by a domiciliary or
resident of that state, or (2)the product was manufactured, produced, or acquired in that state
and the victim was a domiciliary of that state, or the injury occurred there. Cases in which the
forum state lacks the above combinations of contacts are relegated to other rules that require
an issue-by-issue analysis, which, more likely than not, will lead to the application of non-
forum law.380 The Oregon rule is substantially identical.381
In the rest of the world, at least 26 codifications, including Rome II, which is in force in 27
EU countries, contain special choice-of-law rules for product liability conflicts.382 These rules
379. See D. Cavers, The Proper Law of Producers Liability, 26 Intl & Comp. L.Q. 703, 72829 (1977)
(permitting the plaintiff to choose from among the laws of:(1)the place of manufacture; (2)the place of
the plaintiff s habitual residence, if that place coincides with either the place of injury or the place of the
products acquisition; or (3)the place of acquisition, if that place is also the place of injury); R. Weintraub,
Methods for Resolving Conflict-of-Laws Problems in Mass Tort Litigation, 1989 U. Ill. L.Rev. 129, 148
(1989) (giving both the victim and the tortfeasor a choice, under certain circumstances); S. Symeonides,
The Need for a Third Conflicts Restatement, 45051, 47274 (same notion, but different choices).
380. See La. Civ. Code art. 3545 (2015). For an explanation of the rationale of this article by its drafter,
including the reasons for using a unilateralist technique, see Symeonides, Louisiana Exegesis 74959. For
a critique, see J.P. Kozyris, Values and Methods in Choice of Law for Products Liability:AComparative
Comment on Statutory Solutions, 38 Am. J. Comp. L. 475 (1990); R. Weintraub, The Contributions of
Symeonides and Kozyris to Making Choice of Law Predictable and Just:An Appreciation and Critique,
38 Am. J. Comp. L. 511 (1990). For cases applying this article, see S. Symeonides, Louisiana Conflicts
Law: Two Surprises, 54 La. L. Rev. 497 (1994). An almost identical rule is found in Article 48 of the
Puerto Rican Draft Code. For discussion of that rule by its drafter, see S. Symeonides, Problems and
Dilemmas in Codifying Choice of Law for Torts:The Louisiana Experience in Comparative Perspective,
38 Am. J.Comp. L. 431 (1990).
381.Or. Rev. Stat. 15.435 (2015) provides that, subject to some exceptions, Oregon law applies,
if:(a)The injured person was domiciled in Oregon and the injury occurred in Oregon; or (b)The injured
person was domiciled in Oregon or the injury occurred in Oregon, and the product:(A)Was manufactured or produced in Oregon; or (B)Was delivered when new for use or consumption in Oregon. For a
discussion by its drafter, see Symeonides, Oregon Torts Exegesis 98693.
382. For documentation and discussion, see Symeonides, Codifying Choice of Law9398.
Products Liability
339
can be grouped into two categories:(1)those that base the choice of the applicable law on a
combination of factual contacts, and (2)those that, based on the favor laesi principle, authorize
the court to choose the law that favors the victim or give that choice directly to the victim.383
1. Contacts-B asedRules
The first set of choice-of-law rules especially designed for products liability was adopted in
1973 with the Hague Convention on the Law Applicable to Products Liability,384 which is now
in force in 11 European countries.385 Article 5 of this convention provides that the law of the
state of the victims habitual residence applies, as long as that state is also:(1)the defendants
principal place of business, or (2)the place where the victim acquired the product. If these conditions are not met, Article 4 provides that the law of the state of injury applies, as long as that
state is also:(1)the victims habitual residence, (2)the defendants principal place of business,
or (3) the place where the victim acquired the product. When none of the above conditions
are met, Article 6 gives the victim a choice between the law of the state of injury and the law of
state of the defendants principal place of business. The Convention also protects the defendant
by providing a defense that is now found in many other codifications, albeit in slightly different
formulations. Article 7 provides that the defendant may prevent the application of the law of
the place of injury, or of the victims habitual residence, by showing that he could not reasonably have foreseen that the product that caused the injury, or his products of the same type,
would be made available in those states through commercial channels.
The Rome II Regulation is the latest among the codifications that follow a contacts-based
approach.386 Article 5, paragraph 1, of Rome II designates, in successive order, three countries
whose law may govern: (1) the country of the victims habitual residence, (2) the country in
383. See id. From the international bibliography on product liability conflicts, see C. Campbell & D. Campbell
(eds.), International Product Liability (2d ed. 2015, loose-leaf); W. Freedman, International Products Liability
(1995); P. Kaye, Private International Law of Tort and Product Liability (1991); S. Dutson, Product Liability
and Private International Law:Choice of Law in Tort in England, 47 Am. J.Comp. L. 129 (1999); J. Fawcett,
Products Liability in Private International Law:AEuropean Perspective, 238 Recueil des cours 9 (1993); T.K.
Graziano, The Law Applicable to Product Liability: The Present State of the Law in Europe and Current
Proposals for Reform, 54 Intl & Comp. L.Q. 475 (2005); M. Illmer, The New European Private International
Law of Product Liability:Steering through Troubled Waters, 73 RabelsZ 269 (2009); C.G.J. Morse, Products
Liability in the Conflict of Laws, 42 Current Legal Probs. 167 (1989); C. Walsh, Territoriality and Choice of Law
in the Supreme Court of Canada:Applications in Products Liability Claims, 76 Canadian Bar Rev. 91 (1997).
384. See Convention of 2 October 1973 on the Law Applicable to Products Liability, available at http://
www.hcch.net/index_en.php?act=conventions.status&cid=84.
385.These countries are: Croatia, Finland, France, FYROM, Luxembourg, Netherlands, Montenegro,
Norway, Serbia, Slovenia, and Spain. Seeid.
386. Among other codifications:the Belgian codification calls for the application of the law of the victims habitual residence, subject to the preexisting relationship exception (arts. 99 2.4 and 100); the
Bulgarian codification calls for the application of the law of the victims habitual residence, subject to a
foreseeability proviso and the common habitual residence and closer connection exceptions (art. 106),
and the Japanese codification calls for the application of the law of the state of the products delivery,
subject to a foreseeability proviso and the closer connection exception, but it also limits damages and
other remedies to those provided by Japanese law (arts 18, 20, and 22(2)). See also article 1.43.5 of the
Lithuanian codification.
340
which the product was acquired, and (3)the country in which the injury occurred. The application of each countrys law depends on whether the product was marketed in that country.387
For example, if a German plaintiff is injured in India by a product acquired in Egypt, the
applicable law will be that of Germany, if the product was marketed there; if not, Egypt, if the
product was marketed there; if not, India, if the product was marketed there. It appears that
the burden of proving that the product was marketed in the particular country would rest with
the plaintiff, although the defendant may also have an incentive, and should be allowed either
to disprove or prove thatfact.
Moreover, the last sentence of paragraph 1 expressly gives defendants a defense, whereby
they can avoid the application of the law of each of the above three countries by demonstrating that they could not reasonably foresee the marketing of the product, or a product of the
same type in that country.388 If taken literally, this could mean that, even if the plaintiff proves
(and the defendant does not disprove) that the product was actually marketed in the particular
country, the defendant can still assert a second line of defense, by showing that, despite actual
marketing, he or she could not reasonably foresee the marketing.
In any event, if either defense succeeds, the applicable law will not be that of the country
next in line under paragraph 1 (e.g., Egypt after Germany, or India after Egypt), but rather the
law of the defendants habitual residence.389 Thus, if a Japanese defendant manufactured the
product, Japanese law will govern the case, unless, of course, Japanese law is more favorable to
the plaintiff than Egyptian or Indian law, in which case the defendant would not likely invoke
this defense to beginwith.
Paragraph 1 of Article 5 applies [w]ithout prejudice to Article 4(2), which contains the
common-residence rule. This means that, if the parties have their habitual residence in the
same country, its law applies to the exclusion of all others, even if the product was not marketed in that country. Thus, if a German defendant manufactured the product in the above
scenario, German law would govern, even if the product was not marketed in Germany.
Finally, all of paragraph 1 (including the cross-reference to the common-residence rule) is
subject to the manifestly closer connection escape contained in paragraph 2 of Article 5.390
387.Rome II, art. 5(1). For commentaries on Article 5, see T.K. Graziano, The Rome II Regulation
and the Hague Conventions on Traffic Accidents and Product Liability
Interaction, Conflicts
and Future Perspectives, 2008 Nederl. IPR 425 (2008); P. Huber & M. Illmer, International Product
Liability:ACommentary on Article 5 of the Rome II Regulation, 9 Y.B. Priv. Intl L. 31 (2008); A. Schwartze,
A European Regime on International Product Liability:Article 5 Rome II Regulation, 2008 Nederl. IPR 430
(2008); K. Siehr, The Rome II Regulation and Specific Maritime Torts: Product Liability, Environmental
Damage, Industrial Action, 74 RabelsZ 139 (2010); S. Whitaker, The Product Liability Directive and Rome
II Article 5:Full Harmonisation and the Conflict of Laws, 13 Cambr. Y.B. Eur. Legal Studies 435 (2012).
388. Rome II, art.5(1).
389. If the defendant is a juridical person, the place of its central administration is deemed to be its
habitual residence. See Rome II, art. 23(1). Even so, the defendants residence (at least when the defendant is the manufacturer, rather than the local importer or distributor) would seem to be the least relevant
contact in todays world of corporate mobility. In most cases, the manufacturer is likely to be a corporate
entity whose residence, or central administration, may be located in a country that has little relationship
with the case, the product, or its manufacture.
390. Rome II, art. 5(2). The escape also repeats the pre-existing relationship exception, which means,
inter alia, that in all cases in which the victim was also the acquirer of the product, either side can claim a
pre-existing relationship between the victim and the defendant manufacturer, distributor, or retail seller.
Products Liability
341
This escape authorizes a court to either: (1) deviate from the order established in paragraph
1 and apply the law of one of the countries listed there, or (2)apply the law of a country not
listed in paragraph 1, such as the country of the products manufacture, upon showing that this
country has a manifestly closer connection than the country whose law would normally govern
under paragraph1.391
2. Favor Laesi Rules

A significant number of recent national codifications have adopted a direct pro-plaintiff rule,
by allowing the victim to choose from among the laws of states that have certain specified contacts. Table 33, below, lists these countries and the victims choices. In some codifications, the
victims choice is subject to a pro-manufacturer proviso, which negates the plaintiff s choice of
a particular states law, if the manufacturer could not have reasonably foreseen the presence of
the product (or similar products) in that state. In Table33, an asterisk denotes the presence of
such a proviso.392
Table33. Victims Choices inProduct Liability Conflicts

Vs dom. or similar
affiliation
Moldova
Romania
Italy
Switzerland
Quebec
Turkey
Russia
Azerbaijan
Belarus
Kazakhstan
Kyrgyzstan
Tajikistan
Ukraine
Uzbekistan
China
Tunisia
Taiwan
State of Injury
X
X
X*
X
X
X
X
X
X
X
X*
X
X
State of products
acquisition
X*
X*
X*
X*
X
X
X*
X
X
X
X
X
X
X
X
X
X
X
X
Ds PPB or similar
affiliation
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
391. For an assessment of this article from an American perspective, see S. Symeonides, Rome II and
Tort Conflicts:AMissed Opportunity, 56 Am. J.Comp. L. 173, 20609 (2008).
392. For citations and discussion, see Symeonides, Codifying Choice of Law9698.
ten
Contracts
I N T R O DUCT I ON
Chapter6, above, chronicled the gradual abandonment of the lex loci contractus, the traditional rule
for contracts conflicts, during the choice-of-law revolution. Chapter7 discussed the new approaches
adopted in the 40 jurisdictions that joined the revolution. This chapter discusses the current practice of American courts in contract conflicts, in both the traditional and modern camps.1
The most important change from the traditional system to the modern approaches is the
wide acceptance by the latter of the principle of party autonomy. This is a shorthand expression for the notion that the parties to a multistate contract should be allowed to choose, within
certain limits, the law that will govern their contract. Party autonomy is not only important in
methodological and practical terms, but it is also widely popular among contracting parties.
For these reasons, the bulk of this chapter discusses this principle.
However, as we shall see later, the effectiveness of a choice-of-law agreement depends in
large part on the limits imposed on contractual freedom by the law that would be applicable
in the absence of such an agreement. For the sake of brevity, this otherwise applicable law is
referred to hereafter as the lex causae.2 For this reason, this chapter begins with a brief discussion of how a court determines the lex causae in contracts in which the parties did not choose
the applicablelaw.
PA RT O N E . C O N TR A CT S WI T HOUT
C H O I C E -O F -L AW CL A US ES
I. THE TRADITIONAL APPROACH
The First Restatement rejected the principle of party autonomy and subjected virtually all contractual issues to the law of the place of the contracts makingwhich it defined as the place
1. Insurance contracts are discussed in Chapter 12, infra. Choice-of-forum and arbitration clauses are
discussed in Chapter11,infra.
2. Some authors use the term lex causae to refer to the law that governs the contract, even if the parties
contractually chose that law. To avoid confusion, this chapter uses the term lex causae to refer to the law
that would be applicable in the absence of an effective choice of law by the parties.
343
344
where the second promise is made in consideration of the first promise, or the place from
which the acceptance of an offer was sent.3 The law of the place of performance (lex loci solutionis) governed only certain issues of performance.4 Thus, the Restatements version of the lex
loci contractus rule had a much broader scope than its civil law counterpart, covering not only
issues of contractual form, but also capacity, mutual assent or consideration, fraud, illegality,
and any other circumstances that make a promise voidable.5
Milliken v.Pratt6 is a classic example of the breadth of this rule, the difficulty in applying
it, and its manipulation by some courts. Milliken involved a cross-border guaranty contract
between a Maine merchant and a Massachusetts woman acting as guarantor for her husband.
The contract was valid under the law of Maine, but not that of Massachusetts, which considered married women incapable of entering into such a contract. The court rejected the continental rule (which, subject to exceptions that the court did not appear to acknowledge, assigns
contractual capacity to the lex domicilii) in favor of the common law view of subjecting all contractual issues to the lex loci contractus. Then, the court turned to localizing the locus contractus. Ordinarily, the locus should be in Massachusetts because that is where the second promise
[was] made in consideration of the first promise.7 The merchant had prepared the guaranty
promise in Maine, and the woman signed it in Massachusetts. Instead, the court found this to
be a unilateral contract (i.e., one formed by an act of the promisee made in reliance upon the
promise), which is deemed to be concluded when and where such act of reliance took place.8
In this case, the promisees act was the sale of the goods to the womans husband. Because the
goods were delivered to a carrier for the buyer in Maine, the court concluded that the contract
was made in Maine. Thus, Maine law governed, and the contract was valid.9
Whether the court applied the right law or reached the right result is not as important
methodologically as is the fact that it would be impossible to predict the courts decision. The
outcome hinged on whether the contract was bilateral or unilateral, and therefore on which
promise was deemed to be the offer and which the acceptance. These are questions that allow
for varying answers, especially in cross-border oral contracts.10
As noted in Chapter 6, 12 states continue to follow the traditional approach
incontractconf licts.Fourofthesestates(Alabama, 11 Florida, 12 Georgia, 13 and
3. See Restatement (First) of Conflict of Laws 325,326.
4. See id. at358.
5. See id. at332.
6. 125 Mass. 374 (1878).
7. Restatement (First) 325. Of course, Milliken predates the Restatement, but this particular sub-rule
also predates the Restatement.
8. See Restatement (First) 323324.
9. In the meantime, a change in Massachusetts law removed the incapacity of married women, and thus
the application of Maine law did not offend Massachusettss public policy.
10. See, e.g., Lin v.Emps. Reins. Corp., 139 A.2d 638 (Pa. 1958)(contract by telephone across state lines).
11. See Am. Nonwovens, Inc. v.Non Wovens Engg, S.R.I., 648 So. 2d 565 (Ala.1994).
12. See Sturiano v.Brooks, 523 So. 2d 1126 (Fla. 1988)(reaffirming the lex loci contractus rule and specifically refusing to extend to contract conflicts the most significant relationship formula earlier adopted
for tort conflicts).
13. See Convergys Corp. v.Keener, 582 S.E.2d 84 (Ga. 2003)(reaffirming adherence to the traditional,
if peculiar, Georgia approach and expressly rejecting the Restatement Second in a case in which the
Contracts
345
Virginia14) have reaffirmed their adherence to the lex loci contractus rule relatively recently. At
the other extreme, Rhode Island and Tennessee remain in the traditional camp, only because
their supreme courts have not had the opportunity to reconsider their adherence to the
lex loci contractus rule since 1968 and 1992, respectively, when each abandoned the lex loci
delicti rule.15 The remaining six states (Kansas, Maryland, New Mexico,16 Oklahoma,17 South
Carolina,18 and Wyoming19) nominally adhere to the lex loci contractus rule, but not without
ambivalence, equivocation, and often direct evasion. Marylands use of renvoi is an example
of such evasion, as was discussed earlier.20 Another example is Kansass use of the ordre public
doctrine. The supreme court of Kansas found it unnecessary to abandon the lex loci contractus
rule, and reserved consideration of the Second Restatements approach for a later day because
the traditional public policy exceptionwhich the court employed offensively rather than
defensivelyenabled the court to avoid the lex loci rule and protect [t]he interests of Kansas.21
Restatement would have produced the same outcome.) Georgias adherence to the lex loci contractus rule
is subject to several exceptions, because Georgia courts:(1)do not apply the common law (as opposed to
the statutory law) of another state, even if the locus contractus is in that state; and (2)do not apply the lex
loci contractus rule:(a)when the contract is to be performed in a state other than the state in which it was
made; or (b)when the contract contains a valid choice-of-law clause. However, contracts made in Georgia
and not containing a choice-of-law clause to the contrary are presumed to have been tacitly submitted by
the parties to the law of Georgia. See S. Symeonides, Choice-of-Law Revolution84.
14. See Buchanan v.Doe, 431 S.E.2d 289 (Va. 1993); Erie Ins. Exch. v.Shapiro, 450 S.E.2d 144 (Va. 1994);
Lexie v.State Farm Mut. Auto. Ins. Co., 469 S.E.2d 61 (Va.1996).
15. See Woodward v. Stewart, 243 A.2d 917, 923 (R.I. 1968); Hataway v. McKinley, 830 S.W.2d 53
(Tenn.1992).
16. See Reagan v.McGee Drilling Corp., 933P.2d 867 (N.M. Ct. App.1997), cert. denied (applying alternatively the Restatement (Second) and the public policy exception to the lex loci contracts). But see Shope
v.State Farm Ins. Co., 925P.2d 515 (N.M. 1996)(applying the lex loci contractus without discussion).
17. Oklahoma follows the Restatement (Second) in auto-insurance contracts and contracts falling within
the scope of the U.C.C., and the lex loci contractus rule in all other contracts. See Harvell v.Goodyear Tire
& Rubber Co., 164P.3d 1028 (Okla. 2006), rehg denied (July 3,2007).
18. See Sangamo Weston, Inc. v. Natl Sur. Corp., 414 S.E.2d 127 (S.C. 1992) (acknowledging North
Carolinas previous adherence to the lex loci contractus rule and noting that, with the record presently
before it, the court was unable to address the question of whether South Carolina would adopt the more
modern view of the [Second] Restatement. Id. at 14748); Lister v.NationsBank of Delaware, N.A., 1997
WL 723056 (S.C. Ct. App.1997) (applying alternatively the lex loci rule and the Restatement (Second)).
19. Wyoming has vacillated between the lex loci contractus and the Restatement (Second). Cherry Creek
Dodge Inc. v. Carter, 733 P.2d 1024 (Wyo. 1987) cited the Restatement favorably but relied mostly on
the reasonable relationship language of the U.C.C. Amoco Rocmount Co. v. The Anschutz Corp., 7
F.3d 909 (10th Cir. 1993), interpreted Cherry Creek as having adopted the Restatement. BHP Petroleum
(Americas), Inc. v.Texaco Exploration & Prod., Inc., 1P.3d 1253 (Wyo. 2000)renounced the view that
Cherry Creek had adopted the Restatement (Second).
20. See supra 7576. For other examples from Maryland, see Bethlehem Steel Corp. v. G.C. Zarnas &
Co., Inc., 498 A.2d 605 (Md. 1985) (using an expansive notion of public policy and refusing to apply
Pennsylvania law to a contract made in Pennsylvania because Pennsylvania ha[d]no strong interest in
[applying its law] [because] had [this] suit been brought in Pennsylvania, the Pennsylvania court
would likely have decided the issue according to Maryland law [because of Marylands significant contacts with the case]. Id. at 609; Natl Glass v.J.C. Penney, 650 A.2d 246 (Md. 1994)(following Restatement
Second 187 in analyzing a choice-of-law clause); Kronovet v.Lipchin, 415 A.2d 1096 (Md. 1980)(accord).
21. St. Paul Surplus Lines v.Intl Playtex, Inc., 777P.2d 1259, 1267 (Kan. 1989). See also id. (The interest of
Kansas exceeds [that of the other states].). See also Hartford Accident & Indem. Co. v.Am. Red Ball Transit
346
II.STATUTORYRULES
Besides Louisiana and Oregon, which enacted comprehensive statutory rules for contract conflicts,22
a few other states have statutory rules that apply to some types of contracts or to certain issues in
all contracts. For example, California, Montana, and Oklahoma have retained a statutory choice-
of-law rule derived from the David Dudley Field Civil Code of 1865, and further traceable to Story
and Kent.23 This rule provides that [a]contract is to be interpreted according to the law and usage
of the place where it is to be performed; or, if it does not indicate a place of performance, according
to the law and usage of the place where it is made.24 Although all three states have abandoned the
traditional approach in other respects, they cannot completely ignore this traditional statutory rule.
They continue to apply it, albeit begrudgingly, to certain contracts or contractual issues.25
Thus, California applies this rule, Section 1646 of the California Civil Code, to issues of
contract interpretation. For other issues, California applies interest analysis, unless the parties
choose the applicable law, in which case it applies Section 187 of the Restatement (Second).26
In Frontier Oil Corp. v. RLI Insurance Co.,27 the California Court of Appeals rejected the
argument that the California Supreme Court had judicially abrogated Section 1646 when
it adopted interest analysis for tort conflicts in 1967,28 or when it later applied Section 187
of the Restatement (Second) in deciding two contract conflicts in cases involving express
choice-of-law clauses.29 The Frontier Oil court held that Section 1646 remained the applicable
choice-of-law rule for issues of contract interpretation, notwithstanding the application of the
governmental interest analysis to other choice-of-law issues.30 The court expressed no opinion
Co., 938P.2d 1281 (Kan. 1997)(accord); Safeco Ins. Co. v.Allen, 941P.2d 1365 (Kan. 1997)(reaffirming both
the lex loci contractus rule and the public policy exception enunciated in St. Paul but finding the exception
inapplicable because in this case the lex loci was consistent with the stated policy of [Kansas law]. Id. at1372).
23. See Ca. Civ. Code 1646 (enacted in 1872); Mont. Code Ann. 28-3-102 (enacted in 1895); Okla.
Stats. 15 162 (enacted in 1890). For Storys and Kents formulation, see J. Story, Conflict of Laws 325
(7th ed. 1872) ([W]here the contract is, either expressly or tacitly, to be performed in any other place,
there the general rule is in conformity to the presumed intention of the parties that the contract as to its
validity, nature, obligation, and interpretation is to be governed by the law of the place of performance.);
2 J. Kent, Commentaries on American Law 622 (12th ed. 1873) (The rights of the parties are to be judged
of by that law by which they intended, or rather by which they may justly be presumed to have bound
themselves.).
24. Ca. Civ. Code 1646 (2015). The rule is identical in the other two states.
25.Thus, Oklahoma applies this rule to ordinary contracts, the Restatement (Second) to insurance
contracts, and the U.C.C. to contracts for the sales of goods. See Harvell v. Goodyear Tire & Rubber
Co., 164 P.3d 1028 (Okla. 2006); Bohannan v. Allstate Ins. Co., 820 P.2d 787 (Okla. 1991); Ysbrand
v.DaimlerChrysler Corp., 81P.3d 618 (Okla. 2003), cert. denied, 542 U.S. 937 (2004); Bernal v.Charter
Cnty. Mut. Ins. Co., 209P.3d 309 (Okla. 2009); Cuesta v.Ford Motor Co., 209P.3d 278 (Okla. 2009), cert.
denied, 558 U.S. 877 (2009). For California and Montana, see textinfra.
26. See Nedlloyd Lines B.V.v.Superior Court, 834P.2d 1148 (Cal. 1992); Frontier Oil Corp. v.RLI Ins.
Co, 63 Cal. Rptr. 3d 816 (Cal. Dist. Ct. App.2007), review denied (Nov. 14,2007).
27. 63 Cal. Rptr. 3d 816 (Cal. Ct. App.2 Dist. 2007), review denied (Nov. 14,2007).
28. See Reich v.Purcell, 432P.2d 727 (Cal.1967).
29. See Nedlloyd Lines B.V.v.Superior Court, 834P.2d 1148 (Cal. 1992); Wash. Mut. Bank v.Superior
Court, 15P.3d 1071 (Cal.2001).
30. Frontier Oil, 63 Cal. Rptr. 3d at835.
Contracts
347
on [w]hether this differentiated approach is either wise or desirable because this was a question best addressed to the Legislature, which has the sole authority to repeal a statute.31
The court then proceeded to resolve the conflict before it, which involved the interpretation of a commercial liability insurance policy, specifically whether a policy endorsement providing coverage for sudden and accidental pollution also obligated the insurer to defend the
insured for claims arising from alleged pollution. The defendants predecessor, a Texas insurer,
issued and delivered the policy to the plaintiff s predecessor, a Texas-based company engaged
in oil exploration in California. The policy specifically covered risks arising from a particular
drill site near a high school in Beverly Hills, California. The court held that California law
governed this question and, under that law, the insurer had a duty to defend the insured. The
court noted that, under Section 1646, a contract indicates a place of performance if the contract expressly designates such a place or if the intended place of performance can be gleaned
from the nature of the contract and its surrounding circumstances. In this case, the fact that
the policy was accompanied by three California endorsements clearly demonstrate[d]that
the parties intended the policy to provide coverage for the insureds oil and gas operations in
[California] [and] that the parties anticipated that a suit arising from those operations
could be prosecuted in California.32 Therefore, the contract indicate[d] that California was
the place of performance within the meaning of Section 1646, and thus California law should
govern the interpretation of the contract, with no need to apply a governmental interest analysis or give consideration to Texas law with respect to the interpretation of the policy.33 The
California Supreme Court denied review.
In Kelly v. Teeters,34 which involved an oral contract, the plaintiff tried to avoid Section
1646 of the California Civil Code in favor of Section 187 of the Restatement (Second), by arguing that the parties had implicitly chosen California law. Indeed, if proven, an implied choice
would bring the case within the scope of Section 187. However, the plaintiff was unable to point
to any objective evidence that both parties intended California law to govern. Although, as a
Californian, the plaintiff may have assumed that California law would govern, the other party
had left California 10years earlier and was in a Mexican prison at the time of the contract.
The court then concluded that it was not necessary to decide whether the issue at stake
was one of interpretation or validity because, in either case, Mexican law would govern. If
the issue were one of interpretation, Mexican law would govern under Section 1646, either
because Mexico was the contemplated place of performance or because the contract was made
in Mexico.35 If the issue were one of contractual validity, then interest analysis would determine
the applicable law. However, that analysis would also lead to Mexican law because the contract
was made and was to be performed in Mexico, and it implicated that countrys interests more
than those of California.
Montana applies the above statutory rule, if the contract specifies the place of performance.
If it does not, Montana applies Section 187 of the Restatement (Second) when the contract
31. Id.n.15.
32. Id. at837.
33. Id. The court also found that an interest analysis would produce the same result because, contrary to
the trial courts conclusion, Texas law did not differ in pertinent part from Californialaw.
34. 2014 WL 6698787 (Cal. Ct. App. Nov. 26, 2014)(unpublished).
35. The contract provided that the plaintiff would assist the defendant in obtaining a reversal of his rape
conviction and his release from a Mexican prison, where he was incarcerated at the time the contract was
formed.
348
contains a choice-of-law clause, and Section 188 when it does not. In Mitchell v. State Farm
Insurance Co.,36 the Montana Supreme Court held that, when an insurance contract designates
the place of performance to be any state where a claim arises, performance occurs where the
insured obtains a judgment. In Tidymans Management Services Inc. v. Davis,37 the insurance
contract provided coverage anywhere in the world. The same court concluded that the quoted
phrase made Montana the place of anticipated performance, thus leading to the application of
Montana law because the case arose out of a Montana lawsuit.
III. THE UNIFORM COMMERCIAL CODE (U.C.C.)

The U.C.C., which has been adopted in all states, contains several rules designating the applicable
law for certain contracts, including: sales of goods ( 2-402); leases ( 2A-105 and 2A-106);
bank deposits and collections ( 4-102); fund transfers ( 4A-507); letters of credit ( 5-116); bulk
transfers ( 6-103); investment securities ( 8-110); and secured transactions ( 9-301 through
9-307). For all other contracts, subsection (b) of U.C.C. 1-301 provides that, in the absence
of an effective choice-of-law agreement, the forums version of the U.C.C. applies to transactions bearing an appropriate relation to the forum state.38 The accompanying official comments
explain that the question what relation is appropriate is left to judicial decision,39 and that the
mere fact that suit is brought in a state does not make it appropriate to apply the substantive law
of that state.40 Cases in which a relation to the forum state is not appropriate include those in
which the parties have clearly contracted on the basis of some other law, as where the law of
the place of contracting and the law of the place of contemplated performance are the same.41
Most courts have interpreted the phrase appropriate relationship as authorizing the use
of common law choice-of-law principles.42 This is a plausible interpretation, but it is unclear
whether this resort to the common law should be unrestricted or instead limited by the quoted
phrase. The fact that subsection (b)does not require that the forum state have the most appropriate relationship suggests that, as long as the forum state has an appropriate relation to
the transaction, a court may apply the forums version of the U.C.C., even if another state
has a closer or more appropriate relationship. Although some cases have followed this logic
and have applied forum law on this basis, many more cases have applied the law of another
state that had more contacts than the forum state and even though the forum had a relation
that could be characterized as appropriate.43 Indeed the majority of cases have equated the
phrase appropriate relationship to the most significant relationship test of the Restatement
(Second) or the most significant contacts test.44
36. 68P.3d 703 (Mon. 2003). Mitchell is discussed in Chapter11, infra at 50001.
37. 330P.3d 1139 (Mont.2014).
38. U.C.C. 1301(b) (2015).
39. U.C.C. 1301, cmt. 3 (2015).
40. Id. cmt.2.
41. Id.
42. See P. Hay, P. Borchers & S. Symeonides, Conflict of Laws1157.
43. Seeid.
44. Id.
Contracts
349
Neither the text of subsection (b)of 1-301 nor the official comments answer the question
of what law governs when the parties have not designated the applicable law and the transaction
does not bear an appropriate relationship to the forum. One option would be to dismiss the
case on forum non conveniens grounds. However, this option is available only when the grounds
for forum non conveniens dismissal (which are primarily jurisdictional) are applicable in the
particular case. If not, the court must hear the case and must face the choice-of-law question.
Subsection (b)is a classic inward looking unilateral choice-of-law rule45 in that it describes
the cases that fall within the range of the law of the forum but not the cases falling within the
scope of foreign law. When encountering the latter cases, courts have two options. The first is to
bilateralize the rule through the principle of analogical interpretation. In this case, this would
mean applying the law of any non-forum state that has an appropriate relation to the transaction without searching for the state that has the most appropriate relation. The second option is
to resort to general choice-of-law principles. In this case, this could mean searching for the state
that has the most appropriate relation. The fact that most courts have used the Restatements
most significant relationship test even in cases in which the forum has an appropriate relation
makes this the most plausible test for cases in which the forum lacks such a relationship.
IV.THECISG
In 1988, the United States ratified the United Nations Convention on Contracts for the
International Sale of Goods (CISG) of 1980,46 a self-executing treaty, which is now in force in
86 countries.47 The CISG is a substantive-law convention. It provides substantive rules for contracts for the international sale of goods between private parties, excluding sales to consumers, sales of services, and sales of certain types of goods listed in Article 2 of the Convention.
According to Article 1, the Convention applies to sales contracts between parties whose places
of business are in different States:(a)When the States are Contracting States; or (b)When the
rules of private international law lead to the application of the law of a Contracting State.48
However, in ratifying the CISG, the United States opted out of paragraph (b) of Article
1. According to Article 6, the parties to a contract that is governed by the Convention may
expressly exclude its application (opt out). Finally, under general choice-of law principles, the
45. For the difference between unilateral and bilateral choice-of-law rules, see S. Symeonides, Choice-of-
Law Revolution 36584.
46. See S. Treaty Doc. No. 98-9 (1983), 19 I.L.M. 671 (1980), reprinted at 15 U.S.C. App., Notice 1004
(2015).
47. For a list of these countries, see https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_
no=X-10&chapter=10&lang=en (last visited on Nov. 18, 2015)From the rich literature on the CISG, see
F. Ferrari, Contracts for the International Sale of Goods:Applicability and Applications of the 1980 United
Nations Convention (2012); H.M. Flechtner, R.A. Brand & M.S. Walter (eds.), Drafting Contracts under
the CISG (2008); J.O. Honnold & H.M. Flechtner, Uniform Law for International Sales under the 1980
United Nations Convention (4th rev. ed. 2009); J. Lookofsky, Convention on Contracts for the International
Sale of Goods (2012); J. Lookofsky, Understanding the CISG:ACompact Guide to the 1980 United Nations
Convention on Contracts for International Sale of Goods (3d ed. 2008); J. Lookofsky, Understanding the
CISG in the USA (1995); F. Ferrari, PIL and CISG: Friends or Foes?, 31 J.L. & Commerce 45 (2013); J.
Lookofsky, Not Running Wild with the CISG, 29 J.L. & Commerce 141 (2012).
48. U.N. Convention on Contracts for the International Sale of Goods, entered into force Jan. 1, 1988, art.
1(1) (hereinafter CISG).
350
parties to a contract not otherwise governed by the CISG may opt into the Convention through
a choice-of-law clause so specifying. Thus, from the U.S.perspective, the CISG appliesto:
(1) contracts in which all the contracting parties have their place of business in states that
have ratified the CISG, unless the parties have opted out of the Convention under
Article6;or
(2) contracts that contain a choice-of-law clause choosing the CISG as the governinglaw.
So far, there are relatively few cases involving the CISG, and even fewer holding it applicable. Grace Label, Inc. v.Kliff49 is one of the cases holding that the CISG did not apply because,
despite appearances, the contract was not international.50 Grace Label involved the sale of trading cards bearing the likeness of a pop music singer (Britney Spears). The plaintiff, a California
company, ordered the cards from defendant, an Iowa manufacturer. The defendant shipped
the cards directly from Iowa to Mexico, where a Mexican company, one of plaintiff s clients,
intended to use them in snack food packaging. The client rejected the cards because they were
malodorous and did not conform to other specifications. The plaintiff sued in Iowa, arguing,
inter alia, that the CISG governed the contract. The court rejected the argument, after pointing
out that the Mexican client was not a party to the contract. Instead, the contract was between
the plaintiff and the defendant, and because both of them had their principal place of business in the United States, the CISG did not apply. The court then proceeded to determine
the applicable law through Iowas choice-of-law approach (which is based on the Restatement
(Second)), and concluded that Iowa substantive law governed.
A few cases involve the question of whether a choice-of-law clause choosing the law of a
state of the United States amounts to opting out of the CISG, as allowed by Article 6.Most of
these cases have answered this question in the negative, reasoning that in the absence of clear
and categorical language opting out of the CISG, a standard choice-of-law clause does not displace the CISG because, as preempting federal law, the CISG is part of the chosen states law.51
Asante Technologies, Inc. v.PMC-Sierra, Inc.52 was one of the first cases to take this position.53
Asante involved a contract for the sale of goods by a British Columbia seller to a California
49. 355 F.Supp.2d 965 (S.D. Iowa2005).

50. For other cases holding the CISG inapplicable, see Prime Start Ltd. v.Maher Forest Prods., Ltd., 442
F.Supp.2d 1113 (W.D. Wash. 2006)(holding that CISG did not apply because one of the parties had its
place of business in the British Virgin Islands, which, like the United Kingdom, did not ratify the CISG);
McDowell Valley Vineyards, Inc. v.Sabate USA Inc., 2005 WL 2893848 (N.D. Cal. Nov. 2, 2005)(holding
that the CISG did not apply because the French defendant acted through its California affiliate in entering
into a contract with a California plaintiff).
51. See BP Oil Intl, Ltd. v.Empresa Estatal Petroleos, 332 F.3d 333, 337 (5th Cir.2003); Travelers Prop.
Cas. Co. of Am. v.Saint-Gobain Tech. Fabrics Can. Ltd., 474 F.Supp.2d 1075 (D. Minn. 2007); Valero
Mktg. & Supply Co. v.Greeni Oy, 373 F.Supp.2d 475 (D.N.J. 2005); Am. Mint LLC v.GOSoftware, Inc.,
No. 1:05CV650, 2006 WL 42090, **34 (M.D. Pa. Jan. 5, 2006); Ajax Tool Works, Inc. v.CanEng. Mfg.
Ltd., No. 01C5938, 2003 WL 223187, **23 (N.D. Ill. Jan. 29,2003).
52. 164 F.Supp.2d. 1142 (N.D. Cal.2001).
53. For a case taking the opposite position, see American Biophysics Corp. v.Dubois Marine Specialties,
411 F.Supp.2d 61 (D.R.I. 2006), involving a contract between a Rhode Island company, the plaintiff, and
a Manitoba company, the defendant. Because both the United States and Canada have ratified the CISG,
Contracts
351
buyer. The contract consisted of two documents, the buyers purchase order and the sellers
conditions of sale, and each document contained a choice-of-law clause pointing to a different stateCalifornia and British Columbia, respectively. The court concluded that, because
both the United States and Canada have ratified the CISG, and both the buyer and the seller
had their principal place of business in a CISG country, the CISG was applicable. The court
noted that the CISG allows contracting parties to opt out of the Convention, but concluded
that they must do so expressly and clearly. The court held that neither of the two choice-of-law
clauses satisfied this condition. The buyers California clause was ineffective to displace the
CISG because, as preempting federal law, the CISG had become part of California law, which
was chosen by the clause, and had superseded any contrary or different California rules. For
the same reasons, the same was true of the sellers British Columbia clause because the CISG
was part of the chosen law of British Columbia. The court noted that a clause calling for the
application of the California Commercial Code or the Uniform Commercial Code could
amount to implied exclusion of the CISG,54 but held that the clauses in question d[id] not
evince a clear intent to opt out of the CISG.55
Forestal Guarani S.A.v.Daros International, Inc.56 involved a contract between an Argentinian
seller and a New Jersey buyer. The contract was governed by the CISG because both Argentina
and the United States have ratified the Convention, and the parties did not opt out of it. Article
11 of the Convention provides that a contract of sale need not be concluded in, or evidenced
by, writing and is not subject to any other requirement as to form. However, Article 96 of the
Convention carves out an exception to Article 11, by allowing countries whose legislation
requires contracts of sale to be concluded in or evidenced by writing57 to opt out of Article
11 by filing an appropriate declaration. Argentina, but not the United States, had filed such a
declaration, which rendered Article 11 inapplicable to parties based in Argentina. Because, in
this case, the seller was based in Argentina and the contract was not in writing, the New Jersey
buyer argued that the contract was unenforceable under the Convention. The district court
agreed, without conducting a choice-of-law analysis.
The Third Circuit vacated the district courts decision and held that the question of the contracts formal validity should have been resolved under the choice-of-law rules of the forum state,
New Jersey. The court noted the virtual absence of any American case law on the subject, but
was persuaded by the majority view among foreign commentators that this question could be
resolved only under choice-of-law principles. The court found support for this position in Article
7(2) of the Convention, which provides that questions that are not expressly settled by the
Convention should be answered by resorting to the Conventions general principles and, in the
absence of such principles, in conformity with the law applicable by virtue of the rules of private
the convention would be applicable to this contract, unless the parties opted out under Article 6. The
plaintiff argued that a Rhode Island choice-of-law clause contained in the contract effectively displaced
the CISG. The defendant argued that the clause did not have this effect because it did not expressly
exclude the CISG as required by Manitoba law. The court agreed with the plaintiff, finding that the Rhode
Island choice-of-law clause had rendered Manitoba law inapplicable.
54. Assante, 164 F.Supp.2d. at 1150 (emphasis in original).
55. Id.
56. 613 F.3d 395 (3d Cir.2010).
57. CISG, art.96.
352
international law.58 Finding that neither the Convention nor its general principles answered this
question, the court concluded that the only remaining and appropriate avenue was to consider
the question under the choice-of-law rules of the forum state. The court remanded the case to
the district court with instructions to undertake a choice-of-law inquiry after appropriate briefing by the parties.
V. THE RESTATEMENT (SECOND)

As noted in Chapter 7, the Restatement (Second) is the most popular among the modern
methodologies, currently followed in 23 jurisdictions. However, this wide following does not
mean that one can predict with accuracy how these states will actually resolve a particular contract conflict. Uncertainty exists because the Restatement itself is quite equivocal in designating the applicable law, and the courts that follow it are even more so. Even so, the Restatement
provides a helpful starting point for the choice-of-law analysis, not only for the courts that
formally follow the Restatement, but also for those following other modern approaches. This
section describes the Restatements approach to contracts that do not contain a choice-of-law
clause.
A.Section188
The Second Restatements chapter on contracts contains 20 sections for determining the governing law in the absence of an effective choice-of-law clause. The first of these sections,
Section 188, is the anchor of the whole chapter, being the general and residual provision
for all contracts and issues for which the chapter does not provide otherwise. Section 188
provides that the rights and duties of the parties with respect to an issue in contract are
governed by the law of the state that, with respect to that issue, has the most significant
relationship to the transaction and the parties.59 That state is identified under the principles
stated in 6, and by tak[ing] into account certain pertinent contacts, listed in a nonexclusive, non-hierarchical order, such as (a) the place of contracting, (b)the place of negotiation
of the contract, (c) the place of performance, (d) the location of the subject matter of the
contract, and (e)the domicil, residence, nationality, place of incorporation and place of business of the parties.60
58. CISG, art.7(2).

60. Id. 188(2). Subsection (3) provides that if the place of negotiating the contract and the place of
performance are in the same state, the law of that state usually will be applied. However, this subsection
does not apply to the nine types of contracts for which the Restatement provides specific rules (listed in
the text immediately following), or to the issues of capacity, form, andusury.
Contracts
353
B. Particular Contracts
Nine sections follow Section 188, providing presumptive rules designating the applicable law
for nine different types of contracts. The designated law applies, unless, with respect to the
particular issue, some other state has a more significant relationship under the principles stated
in Section 6, in which event the local law of the other state will be applied.61 The presumptively applicable lawis:
(1) For contracts for the transfer of interests in landthe law of the state where the land
is situated;62
(2) For contractual duties arising from a transfer of interests in landthe law of the state
where the land is situated;63
(3) For contracts to sell an interest in a chattelthe law of the state where, under the terms
of the contract, the seller is to deliver the chattel;64
(4) For life insurance contractsthe law of the state where the insured was domiciled at
the time the policy was appliedfor;65
(5) For contracts of fire, surety, or casualty insurancethe law of the state that the parties
understood was to be the principal location of the insured risk during the term of the
policy;66
(6) For contracts of suretyshipthe law governing the principal obligation that the contract of suretyship was intended to secure;67
(7) For contracts for the repayment of money lentthe law of the state where the contract
requires that repayment be made;68
61. Id. 189197.

62. Id. 189. Acontract for the transfer of an interest in land differs from the transfer itself. The latter
is governed by the law that would be applied by the courts of the situs[, which] usually apply their
own local law. Id. 223. In contrast, 189 refers directly to the local law of the situs state, but because
this reference is a displaceable presumption, the two sections potentially may lead to the law of different
states.
63. See id.190.
64. See id. 191. This section is displaced by the U.C.C.for contracts falling within it scope (see supra 348),
and by the CISG for contracts between parties that have their place of business in a CISG contracting
state (see supra 349).
65. See Restatement (Second) 192. These contracts are discussed in Chapter12,infra.
66. See Restatement (Second) 193. These contracts are discussed in Chapter12,infra.
67. See id. 194. This presumption seeks to ensure that suretyship contracts, which are accessory to the
principal contract and usually are concluded contemporaneously, are treated uniformly. See id. 194,
cmt. b.For cases applying this section, see Hay, Borchers & Symeonides, Conflict of Laws 119091.
68. See Restatement (Second) 195. This place usually coincides with the place of the making of the
contract and the location of the lender. See Hay, Borchers & Symeonides, Conflict of Laws, 119192. This
provision is often displaced by state statutes that protect domiciliary consumers in small loan transactions. Seeid.
354
(8) For contracts for the rendition of servicesthe law of the state where the contract
requires that the services, or a major portion of the services, be rendered;69and
(9) For contracts of transportationthe law of the state from which the passenger departs
or the goods are dispatched;70
In all of these sections, the Restatement (Second) refers to the local law of the designated
state, excluding its conflicts law. Moreover, the designated law applies in the absence of an
effective choice of law by the parties.71
C.ParticularIssues
The remaining 10 sections of the Restatement (Second) provide rules for determining the law
applicable to the following issues regardless of the type of the contract:(1)capacity; (2)formalities; (3)validity for matters other than capacity and formalities; (4)misrepresentation, duress,
undue influence and mistake; (5)illegality; (6)usury; (7)construction; (8)nature and extent of
contractual obligations; (9)details of performance; and (10) measure of recovery.
Only one of these sections directly designates the applicable lawSection 206 provides that
the law of the place of performance governs the details of performance. Eight sections simply
refer back to the law selected by application of the rules of Sections187188.72 This reference
means that, in the absence of a choice-of-law clause that passes the test of Section 187, the
particular issue will be determined under the general test of Section 188. To assist in the application of the latter test, three sections contain pointers suggesting the usual and permissible
substantive result. They providethat:
(1) The capacity of a party to contract will usually be upheld if he has such capacity under
the local law of the state of his domicil (Section 198(2));
(2) Formalities that meet the requirements of the place of making will usually be acceptable (Section 199(2));73and
(3) When performance is illegal in the place of performance, the contract will usually be
denied enforcement (Section 202(2)).
69. See Restatement (Second) 196. For cases applying Section 196, see Hay, Borchers & Symeonides,
Conflict of Laws 119295. This provision does not apply to agency contracts. Section 291 of the Restatement
provides that the internal relationship between principal and agent, and thus the rendition of the agents
services, is governed by the law of the state of the most significant relationship, which is identified under
the principles stated in 6 and through the application of the rules of 187188. For conflicts cases
involving agency contracts, see Hay, Borchers & Symeonides, Conflict of Laws 1199206.
70. See Restatement (Second) 197. For cases applying Section 197, see Hay, Borchers & Symeonides, Conflict
of Laws 119599. For contract claims for damages to goods in interstate or international transportation, this
section is preempted by federal statutes or international conventions. See Restatement (Second) 197cmt.a.
71. Restatement (Second) 189192, 194197. Section 193 (on casualty insurance) does not refer to
choice-of-law by the parties.
72. Id. 198202, 204205,207.
73. Section 141 provides that [w]hether a contract must be in writing, or evidenced by a writing, in
order to be enforceable is determined by the law selected by application of the rules of 187188. This
section eliminates the old debate of whether statutes of frauds are procedural or substantive by essentially
characterizing them as substantive.
Contracts
355
The remaining section in this group also provides a result-oriented rule. Section 203 provides that a contract will be sustained against the charge of usury, if it provides for a rate of
interest that is permissible in a state to which the contract has a substantial relationship and is
not greatly in excess of the rate permitted by the general usury law of the state of the otherwise
applicable law under the rule of Section188.74
D.Application
Ordinarily, a court that follows the Restatement (Second) should begin with the specific sections
and then proceed to the general sections. For example, if the contested issue is one of the 10
issues for which the Restatement provides pointers in Sections 198207, the court should begin
its analysis with the particular pointer, rather than with Section 188. Likewise, if the particular
contract is one of those nine contracts for which the Restatement provides presumptive rules in
Sections 189197, the court should not bypass those presumptions and go straight to Section
188. Finally, the application of Section 188 should not degenerate into a numerical counting of
physical contacts. Identifying the state of the most significant relationship is to be done under
the principles stated in 6,75 which include the pertinent policies of the involved states and the
general goals of the choice-of-law process. The contacts listed in Section 188 are simply to be
taken into account76 in initially identifying the potentially concerned states, determining which
of the Section 6 policies are actually implicated, and assessing their comparative pertinence.
In reviewing judicial decisions applying the Restatement (Second), one is left with the distinct impression that many courts either do not understand or choose to ignore the precise
analytical framework the Restatement prescribes. Many courts bypass the presumptions or
pointers of the special sections, going directly to the general Section 188, and, once there, pay
lip service to the cross-reference to Section 6.77 This type of analysis is virtually indistinguishable from the significant-contacts method.
E. Samples fromtheCases
Eli Lilly Do Brasil, Ltda. v.Federal Express Corp.78 is a characteristic example of a less than ideal
application of the Restatement (Second). This case involved a contract between Federal Express
(FedEx) and a Brazilian pharmaceutical company for the shipment of pharmaceuticals from Brazil
to Japan. The contract contained a clause limiting FedExs liability to $20 per kilogram in case of
loss of the cargo. This clause was valid under American federal common law, but would be invalid
under Brazilian law if the carrier were guilty of gross negligence. FedEx received the cargo and
consigned it to a Brazilian truck company for transportation to a Brazilian airport. The truck was
hijacked en route to the airport and the cargo, worth approximately $800,000, was stolen. Under
the above clause, FedExs liability would be limited to $28,000. The district court applied federal

75. Id. 188(1).
76. Id. 188(2).
77. See S. Symeonides, Choice-of-Law Revolution 12023.
78. 502 F.3d 78 (2d Cir.2007).
356
common law, upholding the clause. The Second Circuit affirmed, using less-than-persuasive
reasoning.
The Second Circuit began with the correct Restatement provision, Section 197, which
applies to transportation contracts. The section provides that these contracts are governed by
the law of the state from which the goods are dispatched (here Brazil), unless, with respect to
the particular issue, some other state has a more significant relationship under the principles
of Section 6 and taking into account the contacts of Section 188. The court acknowledged that
Brazils interest, based only on 188 contacts, is greater than the United States.79 After all,
the contract was negotiated and executed in Brazil, between a Brazilian company and a United
States company that regularly transacts business in Brazil; the purpose of the contract was to
ship goods located in Brazil, out of Brazil to Japan; and the goods did not enter the United
States and would have done so only because Memphis is the FedEx transship center.80
However, the court opined, [w]hich state is most interested under 188 is a different question
from which state has the more significant relationship with the parties and the contract for purposes of 197.81 In any event, two of the Section 6 factors were determinative,82 and they trumped
everything else in the Restatement:(1)the policies and interests of the involved states, and (2)the
protection of the parties justified expectations.83 By suing in the United States, the Brazilian company invited application of the well-settled presumption in favor of applying that law tending
toward the validation of the alleged contract,84 said the court, quoting Kossick v.United Fruit Co.85
However, as the italicized word indicates, Kossick (a statute-of-frauds case) was distinguishable
because it presented an all-or-nothing choice in which the application of one states law would have
invalidated the contract in its entirety. In contrast, in Eli Lilly, Brazilian law considered the contract
valid and invalidated only one of its provisions, under limited circumstances (proof of the carriers
gross negligence). The Eli Lilly court did not see the difference between invalidating the whole contract and invalidating a clause of it. Moreover, the Kossick court had treated the total invalidity not
as a determinative factor but rather as one of several factors. In contrast, the Eli Lilly court treated
the partial invalidity as the determinative reason for not applying Brazilianlaw.
The court devoted the rest of the opinion searching through the Restatement comments to
find support for the application of American law. An expectation of enforceability, said the
court, predominates over other factors tending to point to the application of a foreign law
inconsistent with such expectation.86 The court based this bold assumption on a Restatement
comment stating that parties entering into a contract expect at the very least, subject perhaps
to rare exceptions, that the provisions of the contract will be binding upon them.87 Interpreting
the italicized phrase as meaning that a court should only rarely apply an invalidating law, the
79. Id.at82.
80. Id.at81.
81. Id.at82.
82. Id.
83. Id.
84. Eli Lilly, 502 F.3d at 82 (quoting Kossick v.United Fruit Co., 365 U.S. 731, 741 (1961) (emphasis added
by author)).
85. 365 U.S. 731 (1961).
86. Eli Lilly, 502 F.3dat82.
87. Id. (quoting Restatement (Second) 188, cmt. b (emphasis in original)).
Contracts
357
court applied federal common law, validating the contract, because this case d[id] not present
a rare exception.88 Amore plausible interpretation would be that the italicized phrase simply
means that very few people would enter into a contract expecting not to be bound by its terms.
This is not a choice-of-law factor, but rather an assumption about facts. This assumption carries
some choice-of-law implications, but it hardly mandates the choice of a validating law in all but
the rarest cases. If that were the case, the Restatement would have adopted a rule of validation. Instead, the Restatement wisely suggests a balancing test by stating that, all other factors
being equal, a court should not apply the invalidating rule unless the value of protecting the
expectations of the parties is substantially outweighed in the particular case by the interest of
the state with the invalidating rule in having this rule applied.89
The court also had to dispose of Section 197, discussed supra, which pointed to Brazilian law,
unless the United States had a more significant relationship. The court thought that an accompanying Restatement comment negated this section. That comment states that when the contract
would be invalid under the law of the state of dispatch, but valid under the local law of another
state with a close relationship, the law of the latter state should be applied, unless the value
of protecting the expectations of the parties by upholding the contract is outweighed in the
particular case by the interest of the state of dispatch in having its invalidating rule applied.90
Again, overlooking the fact that this comment contemplates total rather than partial invalidity
of a contract, the court concluded that the validating federal common law should govern. The
dissent correctly pointed out that the presumption of Section 197 is rebutted only by showing
that the other state has either a more significant (Section 197)or close (cmt. c) relationship,
and that in this case, the United States relationship was neither. The court rejected the argument,
reasoning that the very fact that one interested states laws would render a contract valid, while
anothers would not, bolsters the significance of the first states relationship to the transaction
and the parties.91
Hoiles v.Alioto92 is illustrative of cases that bypass the specific sections of the Restatement
(Second) and instead rely exclusively on the general Section 6.In this case, which involved a
contract for legal services, the applicable section was Section 196, which establishes a rebuttable presumption in favor of the state in which the contract requires the services to be
rendered.93 The court reasoned that Section 196 was inapplicable because the contract did not
specify the state in which the services were to be rendered, although they were rendered primarily in California. The court cited but did not apply Section 188, and instead went directly
to Section 6, eventually concluding that California law should govern.
Hoiles was a dispute about attorneys fees under a contingent fee agreement between a
California lawyer and a Colorado client. The agreement was invalid under Colorado law and
arguably valid under California law. The court stressed that the client sought the lawyer in
California, that the lawyer was licensed to practice in California but not in Colorado, and that
88. Id.at83.
89. Restatement (Second) 188, cmt.b.
90. Id. 197, cmt. c (emphasis added).
91. Eli Lilly, 502 F.3d at 83n.3.
92. 461 F.3d 1224 (10th Cir. 2006)(decided under Colorado conflictslaw).
358
he rendered most of his services in California.94 The court noted that Colorados interest in
protecting its domiciliaries was attenuated because the client sought the lawyer in California,
and Colorado had no significant interest in enforcing its rules regulating contingent fee agreements against attorneys who are not licensed to practice law in Colorado, do not solicit business
in Colorado, and do not perform legal services in Colorado.95 In contrast, Californias interest
in applying its contingent fee rules to attorneys licensed to practice law there was especially
compelling where, as here, the attorney does not leave the state to solicit business and performs
the majority of the services required by the agreement in California.96 The court also reasoned
that the application of Colorado law, under these circumstances,
would likely impede the interstate practice of law . . . [because] [a]n attorney who is licensed to
practice law only in California . . . is not likely to enter into attorney-client relationships with
citizens from other states if he is required to conform to each states unique contingent fee agreement requirements merely because his client is a resident of another state.97
The court found that, of the seven Section 6 factors, five favored the application of California
law and two factors were neutral. The court remanded the case to the trial court for determining whether the contingent fee agreement was enforceable under California law, as the lawyer
contended.98
VI. OTHER MODERN APPROACHES

As noted in Chapter7, four states (Arkansas, Indiana, Nevada and North Carolina) and Puerto
Rico follow a significant contacts approach, two states (Minnesota and Wisconsin) follow
Leflars better-law approach, and eight states and the District of Columbia follow a combination of modern approaches.99
94. The client traveled to California to find a lawyer and negotiated with him the details of a retainer and
contingent fee agreement. The lawyer reduced the agreement to writing and sent it to the client in Colorado,
where the client signed it. The lawyer was to assist in the recapitalization of a California-based family-held
communications company and to assist the client in the sale of his stock in it. When the client sold his stock,
the lawyer demanded payment of his fee, which the client refused to pay on the ground that the lawyers
contribution to the recapitalization was minimal. In the ensuing litigation in Colorado, the trial court held
that Colorado law governed the enforceability of the contingent fee agreement, and that the agreement was
invalid because it did not meet the exacting disclosure requirements of that law. The court awarded the
attorney $1.5million in quantum meruit instead of the $28million he would be entitled to under the contingent fee agreement. The Tenth Circuit reversed, holding that California law should govern the agreement.
95. Hoiles, 461 F.3d at1232.
96. Id.
97. Id. at1231.
98. In subsequent litigation, the district court found that the contingency fee agreement was voidable
under California law and reinstated its previous quantum meruit judgment in favor of the attorney. See
Alioto v.Hoiles, 2010 WL 3777129 (D. Colo., Sept. 21, 2010), aff d, 531 Fed. Appx. 842 (10th Cir. 2013),
cert. denied, ___U.S. ___, 134 S.Ct. 1561 (2014).
99.New Jersey, the District of Columbia, Massachusetts, and Pennsylvania combine interest analysis with the Restatement (Second). New York combines interest analysis with the center of gravity
approach. Hawaii and North Dakota follow a combination of interest analysis, the Restatement (Second),
and Leflars choice-influencing considerations. For documentation and caveats, see Hay, Borchers &
Contracts
359
In re Jafari,100 a bankruptcy case involving two gambling debts amounting to $1.5million,

is one of the cases decided under a mixed approach. The debtor was domiciled in Wisconsin
where gambling debts are unenforceable, but incurred the debts in Nevada where such debts
are enforceable. Two Nevada casinos extended him a line of credit through agreements negotiated and signed in Nevada and containing Nevada choice-of-law clauses. Curiously, however,
the casinos did not invoke the clauses (and the court did not discuss them) when the casinos filed their claims in bankruptcy court in Wisconsin. The bankruptcy court disallowed the
claims under Wisconsin law, the federal district court allowed them under Nevada law, and the
Seventh Circuit Court of Appeals affirmed the decision of the districtcourt.
The Seventh Circuit noted a federal court split on whether a bankruptcy court should follow federal choice-of-law rules or the rules of the forum state. The court chose not to take
a position because the debtor conceded that, under federal choice-of-law rules, Nevada law
would govern, and the court concluded that the same result would follow under Wisconsins
choice-of-law approach. The court described that approach as comprising two steps: first, a
significant-contacts assessment, and second (if needed), a tiebreaking employment of Leflars
five choice-influencing considerations. The court concluded that the first step resolved the conflict in favor of Nevada, and thus there was no need to resort to Leflars considerations.101
The court then addressed the debtors argument that the application of Nevada law was contrary to Wisconsins strong public policy against enforcing gambling debts. The court rejected
the argumentperhaps correctlybut, in so doing, the court confused the two different roles
of public policy. The first is the traditional role of the ordre public reservation, functioning as
a last shield against repugnant foreign law when the forum qua forum interposes its own conception of justice as the reason for refusing to apply a foreign law.102 Although this role comes
into play in all conflicts, the second role comes into play only in contract conflicts in which the
contract contains a choice-of-law clause. As we shall see later, in the latter cases, the law chosen
by the clause is not to be applied if it is contrary to a fundamental policy of the state whose
law would have been applicable in the absence of such a clause (the lex causae).103 That state
may be the forum state (in which case the lex causae coincides with the lex fori), or another
Symeonides, Conflict of Laws 117375. Louisiana and Oregon have their own comprehensive codifications.
See infra 67893.
101. See Jafari, 569 F.3d at 650 ([T]here is no question that [debtor] was in Nevada when he negotiated
for and reached agreement on the credit lines that gave rise to the casinos claims. The credit agreements were executed and consummated in Nevada, and they were to be performed in Nevada .
The debt was payable in Nevada. In contrast, Wisconsins only contact with the contracts was that
[debtor] happened to reside in Wisconsin at the time he entered into the agreements. The significant
contacts in this case strongly favor Nevada, not Wisconsin. Because the nonforum contacts undoubtedly
are of the greater significance, we do not need to consider the five [Leflar] factors.).
103. See infra 37279. The Restatement (Second) recognizes the differenceat least as one of degree
between the roles of the traditional ordre public exception, on the one hand, and the public policy exception in limiting party autonomy on the other. The Restatement states that to be fundamental within
the meaning of Section 187, a policy need not be as strong as would be required to justify the forum
in refusing to entertain suit upon a foreign cause of action under the rule of 90, which enunciates the
traditional ordre public test. Restatement (Second), Conflict of Laws 187cmt.g.
360
state. The Jafari court appeared to be familiar only with the latter role of public policy when it
rejected the debtors argument, reasoning that there was no basis for interposing Wisconsins
public policy because Wisconsin law would not have been applicable (lex causae).104 The court
thus overlooked the first role of public policy describedabove.
One might argue that, with the advent of modern choice-of-law approaches, the reasons
for the traditional ordre public exception have ceased to exist. The argument has merit, if the
particular modern approach is one in which the policies of the involved states are an integral
part of the choice-of-law process. The argument is less meritorious, however, if (as in Jafari) the
particular choice-of-law process is one based on counting physical contacts.
One could also argue that the traditional ordre public exception would not have made a
difference in this case because, according to Cardozos classic test, it should be employed only
in exceptional cases in which the applicable foreign law is shocking to the forums sense of
justice and fairness.105 Nonetheless, there is a difference between finding the exception inapplicable and ignoring its existence.
In In re Miller,106 another bankruptcy case involving a Nevada casino as creditor, and a
California domiciliary as debtor, the bankruptcy court held the gambling debt unenforceable
under California law. The Ninth Circuit reversed and held the debt enforceable under Nevada
law. The court acknowledged Californias strong, broad, and long-standing policy against judicial resolution of gambling contracts.107 Nevertheless, the court concluded that Nevada law
should govern because the negotiation and performance of the contract took place there and,
although Californias interests pointed in the opposite direction, the fact that the debtor traveled
to Nevada and sought out a loan there tips the balance in favor of applying Nevada law.108
In Meyer v. Hawkinson,109 the North Dakota Supreme Court invoked the forums public policy as the reason for holding a gambling contract unenforceable. Two North Dakota
domiciliaries agreed to share the proceeds of a Canadian lottery ticket during a conversation
they had while visiting Manitoba. The defendant purchased the ticket individually and won
$1.2 million, but refused to split the amount with the plaintiff. The court held the contract
unenforceable, reasoning that, even if it was not a misdemeanor under North Dakota law, a
gambling contract is clearly against North Dakotas public policy.
Bedle v.Kowars110 also involved an alleged oral contract to split gambling winnings. The plaintiff
claimed that she and the defendant, both Ohio domiciliaries, had agreed in Ohio that they would
104. See Jafari, 569 F.3d at 65051 (The [Wisconsin Supreme] court never suggested that if it had determined that [another states] law would have applied under a grouping of contacts analysis, it nevertheless would have applied Wisconsin law to enforce Wisconsin public policy. Indeed, we find no authority
for the conclusion that a Wisconsin court that determines through a significant contacts choice-of-law
analysis that the nonforum states law should apply nevertheless will apply Wisconsin law if enforcing
nonforum law would contravene Wisconsin public policy.).
105. See Loucks v.Standard Oil Co. of NewYork, 120 N.E. 198, 20102 (N.Y. 1918)(the foreign law must
offend our sense of justice or menaces the public welfare, or violate some fundamental principle of
justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal, or
shock our sense of justice).
106. 292 B.R. 409 (B.A.P.9th Cir.2003).
107. Id. at413.
108. Id. at414.
109. 626 N.W.2d 262 (N.D.2001).
110. 796 N.E.2d 300 (Ind. Ct. App.2003).
Contracts
361
split any winnings from a joint gambling trip to an Indiana casino. The defendant hit a jackpot of
$132,365 but refused to split the winnings. The Indiana court concluded that Ohio had the most
intimate contacts with the case because, besides being the parties home-state, it was also the place
of negotiation, making, and expected performance of the contract. Applying Ohio law, the court
held the contract unenforceable, although under Indiana law there was nothing perceptibly evil,
vicious, wicked, immoral or shocking to the prevailing moral sense regarding such agreements.111
PA RT T W O . C O N T R A CT UA L CHOI CE
O F L AW ( PA RT Y A UT ONOM Y )
I.INTRODUCTION
A. The Principle, Its History
and Universality
The principle of party autonomy is simply the external side of a domestic law principle, usually referred to as freedom of contract, which allows contracting parties to derogate from all
the waivable rules (jus dispositivum), as opposed to the non-waivable or mandatory rules (jus
cogens), of that law.112 This principle extends to the freedom of parties to choose the law to
govern their contract.113
111. Id. at 303 (internal quotes omitted).

112. See A. Briggs, Agreements on Jurisdiction and Choice of Law 12 (2008):
One characteristic of a mature legal system is that persons who have legal capacity should be able to
make agreements in such terms as they consider to serve their interests . . . In principle, the degree
to which the law should intrude on or override these private agreements should be no more than is
necessary to serve and secure a broader public interest. So, for example, contracting parties should
be able to make, and to expect the courts to enforce, agreements on jurisdiction and choice oflaw.
113. Id. at 37. For basic bibliography, see id.; Hay, Borchers & Symeonides, Conflict of Laws 1084228;
M. Mandery, Party Autonomy in Contractual and Non-contractual Obligations (2014); Felix & Whitten,
American Conflicts 429
37; Weintraub, Commentary 504
72; P. Nygh, Autonomy in International
Contracts (1999); P.J. Borchers, Categorical Exceptions to Party Autonomy in Private International Law,
82 Tul. L.Rev. 1645 (2008); B. Druzin, Buying Commercial Law:Choice of Law, Choice of Forum, and
Network Externalities, 18 Tul. J.Intl & Comp. L. 131 (2009); T. Eisenberg & G. Miller, Ex Ante Choices
of Law and Forum: An Empirical Analysis of Corporate Merger Agreements, 59 Vand. L. Rev. 1975
(2006); T. Eisenberg & G. Miller, The Flight to NewYork:An Empirical Study of Choice of Law of Forum
Clauses in Publicly-Held Companies Contracts, 30 Cardozo L.Rev. 1475 (2009); F. Maultzsch, Choice
of Law and Jus Cogens in Conflict of Laws for Contractual Obligations, 75 RabelsZ 60 (2011); G. Miller
& T. Eisenberg, The Market for Contracts, 30 Cardozo L. Rev. 2073 (2009); E. OHara, Opting out of
Regulation: A Public Choice Analysis of Contractual Choice of Law, 53 Vand. L. Rev. 1551 (2000); L.
Ribstein, From Efficiency to Politics in Contractual Choice of Law, 37 Ga. L.Rev. 363 (2003); S.I. Strong,
Limits of Procedural Choice of Law, 39 Brook. J.Intl L. 1027 (2014); S. Symeonides, Party Autonomy in
International Contracts and the Multiple Ways of Slicing the Apple, 39 Brook. J.Intl L. 1123 (2014); S.
Symeonides, Party Autonomy and the Lex Limitativa, in In Search of Justice:Essays in Honour of Spyridon
Vl. Vrellis 909 (2014); S. Symeonides, Lautonomie de la volont dans les principes de la Haye sur le choix
de la loi applicable en matire de contrats internationaux, Rev. Critique Dr. Intl Priv 807 (2013); D.T.
Trautman, Some Notes on the Theory of Choice of Law Clauses, 35 Mercer L.Rev. 535 (1984); C. Walsh,
362
However, neither the internal nor the external iterations of this freedom are boundless. For
example, in contracts involving presumptively weak parties, such as consumers or employees,
an unfettered freedom to choose a law may be a freedom to exploit a dominant position.114
Consequently, most domestic laws curtail th[is] freedom,115 and this curtailment extends to the
multistate arena: The frameworks of private international law are not subordinated to the
private agreement of parties to litigation.116 Moreover, the fact that the restrictions to freedom of
contract, or the line separating jus cogens and jus dispositivum, vary from state to state is one of the
many conflicts encountered when contracting parties assert their autonomy at the multistatelevel.
Historically, the first confirmed statutory rule sanctioning party autonomy at the multistate
level appears in a decree issued in Hellenistic Egypt circa 120118 b.c. The decree provided
that contracts written in the Egyptian language were subject to the jurisdiction of the Egyptian
courts, which applied Egyptian law, whereas contracts written in Greek were subject to the
jurisdiction of the Greek courts, which applied Greek law.117 Thus, by choosing the language of
their contract, parties could directly choose the forum and indirectly the applicablelaw.
For centuries, the principle of party autonomy remained, as far as Western literature knows,
unexploited and unexplored until it reappeared first in the writings of Charles Dumoulin
(15001566) and then Ulrich Huber (16361694). These authors, and later Robert Pothier
(16991772) and Joseph Story (17791845), used the presumed intent of the parties as the
rationale for arguing against the rule of lex loci contractus and in favor of the lex loci solutionis.118 In the late eighteenth and early nineteenth centuries, judicial decisions in England and
the United States also relied on the parties presumed intention to the same end.119 Needless to
say, if the presumed intent of the parties deserves some deference, then, a fortiori, their actual
intention expressed in a choice-of-law clause also deserves deference. Even so, express clauses
were rare at the time, and when Pasquale Mancini (18171888) first proposed an autonomous
choice-of-law rule calling for the application of the law expressly chosen by the parties, he had
little success.120 Ironically, until the end of the nineteenth century, European authors were more
resistant to this idea than courts.121
The Uses and Abuses of Party Autonomy in International Contracts, 60 U. N. Br. L. J. 12 (2010); W.
Woodward, Legal Uncertainty and Aberrant Contracts:The Choice of Law Clause, 89 Chi.-Kent L.Rev.
197 (2014); W. Woodward, Constraining Opt-Outs: Shielding Local Law and Those It Protects from
Adhesive Choice of Law Clauses, 40 Loy. L.A. L. Rev. 9 (2006); D. Wu, Timing the Choice of Law by
Contract, 9 Nw. J.Tech. & Intell. Prop. 401 (2011); M. Zhang, Contractual Choice of Law in Contracts of
Adhesion and Party Autonomy, 41 Akron L.Rev. 123 (2008); M. Zhang, Party Autonomy and Beyond:An
International Perspective of Contractual Choice of Law, 20 Emory Intl L.Rev. 511 (2006).
114.Briggs, supra note 112,at37.
115. Id.
116. Id.at13.
117. See Juenger, Multistate Justice, 78, and authorities cited therein.
118. See P. Nygh, Autonomy in International Contracts 47 (1999); B. Ancel & H. Muir Watt, Annotations
sur la Consultation 53 de Du Moulin traduite en franais, in Le monde du droit, Mlanges Jacques Foyer
1 (2008).
119. See Robinson v.Bland, 2 Burr. 1077 (1760); Wayman v.Southard, 23 U.S. (10 Wheat.) 1, 48 (1825).
120. See Y. Nishitani, Mancini und die Parteiautonomie im Internationalen Privatrecht (2000).
121. See M. Caleb, Essai sur le principe de lautonomie de la volont en droit international priv (1927);
J-P. Niboyet, La thorie de lautonomie de la volont, 16 Recueil des cours 53 (1927-I); Y. Nishitani, Party
Autonomy and Its Restrictions by Mandatory Rules in Japanese Private International Law:Contractual
Contracts
363
Today, party autonomy enjoys the status of a self-evident proposition, a truism. It has been
characterized as perhaps the most widely accepted private international rule of our time,122
a fundamental right,123 and an irresistible principle124 that belongs to the common core
of the legal systems.125 One choice-of-law codification after another recognized party autonomy, especially in the last 50 years. As a comprehensive study documents, all but 2 of the
84 codifications enacted during this period have assigned a prominent role to this principle
in contract conflicts.126 Moreover, many codifications and international conventions have also
extended this principle beyond its birthplace, the field of contracts, to areas such as succession,127 trusts,128 matrimonial property,129 property,130 and even family law131 and torts.132 The
Conflicts Rules, in J. Basedow, H. Baum & Y. Nishitani (eds.), Japanese and European Private International
Law in Comparative Perspective, 77, 8182 (2008).
122. R.J. Weintraub, Functional Developments in Choice of Law for Contracts, 187 Recueil des Cours 239,
271 (1984); see also T.M.de Boer, Party Autonomy and Its Limitations in the Rome II Regulation, 9 Ybk.
Priv. Intl L. 19, 19 (2008) (Party autonomy is one of the leading principles of contemporary choice of law.).
123. E. Jayme, Identit culturelle et intgration:Le droit international priv postmoderne, 251 Recueil des
Cours 147 (1995) (characterizing party autonomy as a fundamental right).
124. A.E.von Overbeck, Lirrsistible extension de lautonomie de la volont en droit international priv,
in Nouveaux itinraires en droit:Hommage Franois Rigaux 619 (1993).
125. O. Lando, The EEC Convention on the Law Applicable to Contractual Obligations, 24 Common
Mrkt. L.Rev. 159, 169 (1987).
126. See Symeonides, Codifying Choice of Law 11415, 14951. The two codifications that have not
adopted this principle are those of Ecuador and Paraguay, both of which were minor revisions of the
Bustamante Code. See Ecuador Civ. Code arts. 1517; Paraguayan Civ. Code arts. 2324. In the meantime, however, Paraguay adopted the Hague Principles on Choice of Law for International Contracts of
2015 (see infra 364), which strongly endorse party autonomy.
127. See, e.g., Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons,
art. 5, Aug. 1, 1985, 28 I.L.M. 150; Regulation 650/2012, of the European Parliament and of the Council of
4 July 2012 on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and Acceptance and
Enforcement of Authentic Instruments in Matters of Succession and on the Creation of a European Certificate
of Succession, art. 22, 2012 O.J. (L 201)107 (EU); Albanian codif. Art. 33.3; Azerbaijani codif. Art. 29; Armenian
codif. Art. 1292; Belarusian codif. Arts. 1133, 1135; Belgian codif. Art. 79; Bulgarian codif. Art. 89; Burkinabe
codif. Art. 1044; Czech codif. Art. 77.4; Estonian codif. Art. 25; Italian codif. Art. 46; Kazakhstani codif. Art.
1121; South Korean codif. Art. 49; Kyrgyzstani codif. Art. 1206; Liechtenstein codif. Art. 29.3; Moldovan codif.
Art. 1624; Dutch codif. Art. 145; Polish codif. Art. 64.1; Puerto Rican draft codif. Art. 48; Quebec codif. Arts.
309899; Romanian codif. Art. 68(1); Serbian draft codif. Art. 104; Swiss codif. Arts. 90(2), 91(2), 87(2), 95(2)
(3); Tajikistani codif. Arts. 12311232; Ukrainian codif. Art. 70; Uzbekistani codif. Art.1197.
128. See Hague Convention on the Law Applicable to Trusts and on Their Recognition, art. 6, July 1,
1985, 23 I.L.M.1389.
129. See, e.g., Hague Convention on the Law Applicable to Matrimonial Property Regimes, art. 3, Mar.
14, 1978, 16 I.L.M.14.
130. See R. Westrik & J. Van Der Weide (eds.), Party Autonomy in International Property Law (2011).
131. See, e.g., Council Regulation 1259/2010, of 20 December 2010 Implementing Enhanced Cooperation
in the Area of the Law Applicable to Divorce and Legal Separation, art. 5, 2010 O.J. (L 343) 10 (EU);
Protocol on the Law Applicable to Maintenance Obligations, arts. 78, Nov. 23, 2007, available athttp://
www.hcch.net/upload/conventions/txt39en.pdf; Council Regulation 4/2009, of 18 December 2008 on
Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and Cooperation in Matters
Relating to Maintenance Obligations, art.15, 2009 O.J. (L 7)1, 9(EC).
132. See Regulation 864/2007, of the European Parliament and of the Council of 11 July 2007 on the Law
Applicable to Non-contractual Obligations (Rome II), art 14, 2007 O.J. (L 199)40, 46(EC).
364
latest instrument to strongly endorse party autonomy is the Hague Principles on Choice of Law
in International Commercial Contracts (Hague Principles), a soft-law instrument adopted by
the Hague Conference on Private International Law on March 19, 2015.133

In the United States, Joseph Story, the intellectual father of American conflicts law, endorsed
party autonomy,134 as did American transactional and judicial practice. As early as 1825, the
U.S. Supreme Court referred in passing to a principle of universal law that a contract is governed by the law with a view to which it was made,135 thus recognizing the notion of an
implied choice of law by the parties. Although this recognition should have made acceptance
of an express choice of law even easier, cases involving such a choice did not begin to appear
until the end of the nineteenth century.136
1.The First Restatements Rejection

Nevertheless, Joseph Beale, the drafter of the first Restatement, chose to ignore party autonomy
because it did not fit into his positivist territorialist scheme. In his view, giving contracting
parties the freedom to agree on the applicable law would be tantamount to giving them a
license to legislate.137 Instead, Beale proposed, and the first Restatement adopted, an absolute
and unqualified lex loci contractus rule mandating the application of the law of the state in
which the contract is made to all aspects of the contract.138
During the discussion of this rule at the 1928 meeting of the American Law Institute
(ALI),139 Beale had to admit that party autonomy (which was then known as the doctrine of the
133. See Hague Principles on Choice of Law in International Commercial Contracts (approved on Mar. 19,
2015), available at http://www.hcch.net/index_en.php?act=conventions.text&cid=135. For discussion, see
A. Dickinson, A Principled Approach to Choice of Law in Contract?, 18 Butterworths J.Intl Banking & Fin.
L. 151 (2013); J.L. Neels, The Nature, Objective and Purposes of the Hague Principles on Choice of Law in
International Contracts 15 Ybk. Priv. Intl L. 45 (20132014); M. Pertegs & B.A. Marshall, Party Autonomy
and Its Limits: Convergence through the New Hague Principles on Choice of Law in International
Commercial Contracts, 39 Brook. J.Intl L. 975 (2014); S. Symeonides, The Hague Principles on Choice of
Law for International Contracts:Some Preliminary Comments, 61 Am. J.Comp. L. 873 (2013).
134. See J. Story, Commentaries on the Conflicts of Laws 293(b) (2d ed.1841).
135. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, at 48 (1825). See also Pritchard v. Norton, 106 U.S.
124 (1882); Andrews v.Pond, 38 U.S. (13 Pet.) 65, 78 (1839); Thompson v.Ketcham, 8 Johns. 189, 193,
(N.Y.1811).
136. See Hay, Borchers & Symeonides, Conflict of Laws1086.
137. J.H. Beale, Treatise on the Conflicts of Laws 1080 (1935) ([A]t their will [parties] can free themselves
from the power of the law which would otherwise apply to their acts.). In fairness to Beale, other American
writers of that period, as well as Judge Learned Hand, took the same position against party autonomy. See Gerli
& Co. v.Cunard S.S. Co., 48 F.2d 115, 117 (2d Cir. 1931); R.C. Minor, Conflict of Laws or Private International
Law 40102 (1901); E. Lorenzen, Validity and Effect of Contracts in the Conflict of Laws, 30 Yale L.J. 655, 658
(1921). But see W.W. Cook, The Logical and Legal Bases of the Conflict of Laws 389432 (1942).
138. See Restatement (First)332.
139. For documentation of these discussions, see S. Symeonides, The First Conflicts Restatement through
the Eyes of Old:As Bad as Its Reputation? 32 S. Ill. U.L.J. 39, 6874 (2007).
Contracts
365
parties intention) had been accepted by a majority of the cases.140 Nevertheless, he posited
that its restatement would lead to uncertainty because it would often be difficult to ascertain
the parties intent. When asked about situations in which the parties clearly expressed their
intent in the contract, he replied with answers that assumed that the parties were attempting to
evade a fundamental policy of the locus contractus. When asked about situations in which no
fundamental policy was involved, he replied that the man is not yet born who is wise enough
to inventory all gradations of public policy.141 The discussion was obviously hopeless.142 Judge
Edward R.Finch, an ALI member, presciently warnedBeale:
[Y]ou will never be able to hold your courts to that sort of a rule [i.e., the lex loci contractus]. You
can lay it down, but human nature is not so constituted that you can make a court adopt a general
rule which will do injustice in a majority of the cases coming withit.143
History proved Judge Finch right and Beale terribly wrong. Even before the American
choice-of-law revolution, which demolished Beales Restatement, most courts chose to ignore
his proscription of party autonomy.144
2.The Second Restatements Endorsement

Recognizing this reality, the Restatement (Second) formally sanctioned party autonomy, codifying it in the all-important Section 187, thus bringing American law in accord with most
other Western legal systems. Today, choice-of-law clauses have become commonplace in multistate contracts.145
As noted in Chapter 7, 23 U.S. states follow the Restatement (Second) in contract conflicts.146 On the issue of party autonomy, this following is much higher. Section 187 is followed
by more American courts than any other provision of the Restatement (Second), including
some courts that otherwise follow the traditional theory.147 Clearly, the Restatement represents
the prevailing American view on the issue of party autonomy, except where it is superseded by
statutes, such as the Uniform Commercial Code (U.C.C.) (discussed later).148 For this reason,
much of the discussion in this chapter centers on this section.
140. J.H. Beale, Discussion of Conflict of Law Tentative Draft No. 4, 6 A.L.I. Proc. 454, 458 (19271928).
141. Id. at 462 ([T]he man is not yet born who is wise enough to say as to a foreign law whether the
foreign law really is to be obeyed , whether [its] provisions are matters of such interest to the state that
passed them that they would be enforced or are not.).
142. For the reasons, see Symeonides, supra note 139, at7074.
143.Beale, supra note 140 at466.
144. See Hay, Borchers & Symeonides, Conflict of Laws 108687.
145. See Symeonides & Perdue, Conflict of Laws 339 (About twenty per cent of conflicts cases decided by
intermediate courts and courts of last resort every year involve a choice-of-law clause. Although this
is a high percentage, it is probably even higher if one considers lower court cases that are not appealed or
contracts that do not result in litigation.).
146. See supra 15152.
147. See supra 152.
148. See infra 36667.
366
Because of its importance, Section 187 is reproduced in full, and discussedbelow:

(1) The law of the state chosen by the parties to govern their contractual rights and duties
will be applied if the particular issue is one which the parties could have resolved by
an explicit provision in their agreement directed to thatissue.
(2) The law of the state chosen by the parties to govern their contractual rights and duties
will be applied, even if the particular issue is one which the parties could not have
resolved by an explicit provision in their agreement directed to that issue, unlesseither
(a) the chosen state has no substantial relationship to the parties or the transaction
and there is no other reasonable basis for the parties choice,or
(b) application of the law of the chosen state would be contrary to a fundamental policy
of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of 188, would be the
state of the applicable law in the absence of an effective choice of law by the parties.
(3) In the absence of a contrary indication of intention, the reference is to the local law of
the state of the chosen law.149
C. The Uniform CommercialCode

From its inception in 1952, the Uniform Commercial Code ((U.C.C.) contained Section 1-105
which delineated the Codes territorial applicability and allowed choice-of-law clauses for contracts falling within the material scope of the U.C.C. Section 1-105, which (like most provisions
of the U.C.C.) has been adopted by statute in all states of the United States, prevails over the
Restatement (Second) for contracts that fall within the scope of theU.C.C.
Between 1952 and 2001, Section 1-105 was amended seven times, albeit in relatively minor
ways. In 2001, it was revised in a major way and renumbered into Section 1-301. The revised
section differentiated between consumer contracts and business-to-business contracts and
between international and intra-U.S.interstate contracts, and imposed different party autonomy restrictions for each category. The revised section proved unpopular with state legislatures
and, by 2008, only the U.S. Virgin Islands had adopted it. In 2008, that section was withdrawn
and replaced with new Section 1-301, which essentially restores the text of the old Section 1-
105 with only minor changes. The discussion below is limited to the new text of Section 1-301
of 2008, although it draws from cases decided under the old Section1-105.
Subsection (a) of U.C.C. Section 1301 provides that when a transaction bears a reasonable relationship to [the forum] state and also to another state or nation the parties may
agree that the law of either [the forum] state or of such other state or nation shall govern their
rights and duties.150 Thus, a single reasonable relationship test plays the same role under the
U.C.C.as the two alternative tests of substantial relationship or other reasonable basis play
under the Restatement (Second).151

150. U.C.C. 1301(a) (2015).
151. See Restatement (Second) 187(2)(a).
Contracts
367
Subsection (a)is not a model of good drafting. If read literally, it would permit a choice-of-
law clause only if the transaction bears a reasonable relationship to both the chosen state and
the forum state, instead of simply requiring a reasonable relation with the chosen state. Thus,
if a transaction bears a reasonable relation with one or more states other than the forum state,
subsection (a), if taken literally, would preclude the parties from choosing the law of one of
those other states. Obviously, such a reading would defeat the very purpose of party autonomy
and should be avoided. Fortunately, courts have not had difficulty with this wording, primarily
because they have not read it literally.
Second, unlike the Restatement (Second), subsection (a)of Section 1301 does not expressly
distinguish between suppletive or variable rules and mandatory or nonvariable rules. Reading
this provision literally would require a reasonable relationship with regard to both categories
of rules. Fortunately, the official comments avoid this result by suggesting that Section 1301
does not displace the doctrine of incorporation.152 Moreover, another provision of the U.C.C.,
Section 1302, expressly recognizes the parties freedom to vary by agreement any U.C.C.provision that the U.C.C.does not designate as nonvariable.153 Because a choice-of-law clause is
such an agreement, there is little doubt that, with regard to matters governed by variable or
suppletive rules of the U.C.C., the parties may incorporate by reference the law of a state that
lacks a reasonable relationship, or even nonstate norms.154
Party autonomy under subsection (a) of Section 1-301 is subject to multiple exceptions
spelled out in subsection (c). Subsection (c)lists several other sections of the U.C.C.and provides that, if any of those sections designates the state of the applicable law, that law governs
and a contrary agreement is effective only to the extent permitted by the law so specified.155
In the old Section 1-105, this reference was to the whole law of that state, including its conflicts law. The current text of Section 1-301 limits this reference to the substantive law of the
designatedstate.
Section 1301 does not contain an explicit public policy limitation to party autonomy. This
omission is problematic only for matters covered by nonvariable rules, and mostly in international conflicts. In interstate conflicts, this omission is less important because all U.S. states
have adopted the U.C.C. However, some states deviate from certain provisions of the U.C.C.or
adopt different interpretations of identical provisions. For this reason, a public policy limitation may be necessary even in interstate conflicts. In any event, some courts have engrafted a
public policy limitation into Section 1-301 and its predecessor.156
152. U.C.C. 1301, cmt. 1 (2015) (But an agreement as to choice of law may sometimes take effect as a
shorthand expression of the intent of the parties as to matters governed by their agreement, even though
the transaction has no significant contact with the jurisdiction chosen.).
153. See U.C.C. 1302(a) (2015) (providing that [e]xcept as otherwise provided in subsection (b) or
elsewhere in [the U.C.C.], the effect of provisions of [the U.C.C.] may be varied by agreement.). Subsection
(b)provides that the obligations of good faith, diligence, and reasonableness are non-waivable, but even
with regard to those obligations, the parties may by agreement determine the standards by which the
performance of such obligations is to be measured if such standards are not manifestly unreasonable.
155. U.C.C. 1-301(c) (2015). The listed sections are 2-402 (sales of goods); 2A-105 and 2A-106
(leases); 4-102 (bank deposits and collections); 4A-507 (fund transfers); 5-116 (letters of credit); 6-
103; (bulk transfers); 8-110 (investment securities); and 9-301 through 9-307 (secured transactions).
368
II. THE GENERAL SCOPE OFPARTY

AUTONOMY:AFIRSTLOOK
Although most legal systems recognize the principle of party autonomy, they also agree on the
need for some limitations, be they geographical, substantive, or both.157 For example, although
most systems allow parties to choose the applicable law only in contracts that have foreign contacts, some systems require that the state of the chosen law must possess a certain geographic
or other relationship with the contract or the parties, whereas other systems have dispensed
with this requirement entirely.158
The requirement for a geographic nexus to the chosen state is only one of several tools
indeed the least precise or effectivefor policing party autonomy. To be sure, the very use
of the word policing suggests that party autonomy is not unfettered. Limitations are necessary, for the same reasons that legal systems restrict the domestic manifestation of the same
principle, usually referred to as freedom of contract. For example, in contracts involving presumptively weak parties, such as consumers or employees, an unfettered freedom to choose
a law may be a freedom to exploit a dominant position.159 Consequently, most domestic laws
curtail th[is] freedom,160 and this curtailment extends to the multistate arena: The frameworks of private international law are not subordinated to the private agreement of parties
to litigation.161
Predictably, however, the various systems use different techniques for policing party autonomy, beginning with the way in which they delineate its permissible scope. For example, many
systems narrow the scope of party autonomyby:
(1) Excluding from it certain contracts, such as contracts conveying real rights in immovable property, consumer contracts, employment contracts, insurance contracts, and
other contracts involving presumptively weak parties.162
(2) Excluding certain contractual issues, such as capacity, consent, and form.163
(3) Confining party autonomy to contractual, as opposed to noncontractual, issues;164or
(4) Otherwise limiting what law the parties can choose, thatis:
(a) Substantive, as opposed to procedurallaw,
(b) Substantive or internal, as opposed to conflicts law,and
(c) State law, as opposed to nonstate norms.165
157. See DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 677 (Tex. 1990), cert. denied, 498 U.S. 1048
(1991) ([T]he parties freedom to choose what jurisdictions law will apply to their agreement cannot be
unlimited.).
158. See Symeonides, Codifying Choice of Law 11620.
159.Briggs, supra note 112,at37.
160. Id.
161. Id.at13.
163. See id. at 12936.
164. See id. at 13637.
165. See id. at 13746.
Contracts
369
These delimitations of the scope of party autonomy are discussed later, along with the
scope and other modalities of the choice-of-law clause agreement.166 In the meantime, the
discussion turns the basic requirements for, and limitations of, party autonomy within its
permissiblescope.
III. REQUIREMENTS AND LIMITATIONS

A. The Distinction betweenWaivable
and Non-w aivableRules
Section 187 of the Restatement (Second) draws a basic distinction that is familiar to civil
law lawyers between jus dispositivum and jus cogens, or between waivable, suppletive, or
default rules of law, on the one hand, and non-waivable, mandatory, imperative or
obligatory rules, on the other.167 Although the Restatement does not use any of these terms,
it distinguishes between:
(a) Issues that the parties could have resolved by an explicit provision in their agreement directed to that issue,168 such as those relating to construction, to conditions
precedent and subsequent, to sufficiency of performance and to excuse for nonperformance, frustration and impossibility;169and
(b) Issues that are beyond the parties contractual power, such as those involving capacity,
formalities and substantial validity.170
Subsection 1 of Section 187 provides that, for issues of the first category,171 the parties
choice of law is not subject to any geographical or substantive limitations. As the official comments to the Restatement explain, this provision recognizes the common phenomenon of
incorporation by reference.172 Noting that most rules of contract law are designed to fill
gaps in a contract which the parties could themselves have filled with express provisions, the
comments state that the parties may do so, either by spelling out in detail the terms of the
contract, or by incorporat[ing] into the contract by reference extrinsic material which may,
among other things, be the provisions of some foreign law.173 Understandably, therefore, this
incorporation is not subject to any limitations. In fact, the Restatement comments take the
position that the rule of subsection 1is not a rule of choice of law.174
166. See infra 379409.
167. For discussion of these concepts, see Maultzsch, supra note113.
169. Id. cmt.c.
170. Id. cmt.d.
171. Whether an issue belongs to the first or the second category is determined by the local law of the
state selected by application of the rule of 188, namely the state whose law would govern in the absence
of a choice-of-law clause. Restatement (Second) 187(1) cmt.c.
172. Id.
173. Id.
174. Id.
370
B. Basis forthe Parties Choice:

Substantial Relationship or ReasonableBasis
Subsection 2 of Section 187 provides that, for issues beyond the parties contractual power, the
parties choice of law will be honored, but only if it meets the requirements specified in that
subsection. The first requirement is that the state of the chosen law must have a substantial
relationship to the parties or the transaction, or there must be an other reasonable basis for
the parties choice.175 This phrasing suggests that a substantial relationship is a subspecies of
a reasonable basis.176
The substantial relationship requirement is geographic and fact-specific. It is usually satisfied if the chosen state has a significant contact, such as when it is the place of making or performance of the contract, or the domicile or principal place of business of one of the parties.177
This requirement absorbs, but also expands, the requirement of internationality found in
several international conventions and foreign codifications.178 Acontract that has a substantial
relationship with another state is by definition multistate or international, but additionally
the chosen state itself must have a substantial relationship. This requirement aims to prevent
parties from evading those provisions of the otherwise applicable law that do not reflect a
fundamental policy. Recent international conventions and codifications, including the latest
revision of the U.C.C., eliminate or ease this requirement, choosing instead to police party
autonomy by other means.179 Although many cases underscore the importance of this requirement in dicta, very few cases have struck down choice-of-law clauses solely on this ground.180
175. Restatement (Second) 187(2)(a).

176.In Swanson v.Image Bank, Inc., 77P.3d 439 (Ariz. 2003), an Arizona case in which the chosen state of
Texas had the requisite geographical relationship, the question was whether the disputed issue belonged to
this category, and then whether the choice met the substantive limitations. The disputed issue was whether
an Arizona employee of a Texas employer could waive the application of an Arizona statute that imposed
treble damages on an employer who wrongfully withholds an employees wages. Texas law did not impose
treble damages. The intermediate court found that, under Arizona law, a waiver of this right would be unenforceable, and hence an indirect waiver through the Texas choice-of-law clause would be unenforceable
under Section 187(2) as violating a fundamental policy of Arizona. The Arizona Supreme Court reversed.
Noting that the Arizona statute did not contain any language precluding an employee from waiving the right
to treble damages, and did not make the award of such damages mandatory for courts, the court concluded
that this issue was one that the parties could resolve by agreement, either directly or indirectly through
the choice of another states law. Thus, the choice-of-law clause fell within the scope of Section 187(1) and
it should be upheld without subjecting it to the substantive or geographical limitations of Section 187(2).
177. For case law on which contacts satisfy this requirement, see Hay, Borchers & Symeonides, Conflict
of Laws 109396.
179. See id. at 11920. ANewYork statute (N.Y. Gen. Oblig. 51401) provides that a choice of NewYork
law in a contract not involving a consumer or personal services will be given effect even if NewYork has
no substantial contacts, as long as it involves a transaction exceeding $250,000 and does not contravene
the specific limitations of theU.C.C.
180. See Contour Design, Inc. v.Chance Mold Steel Co., Ltd., 693 F.3d 102 (1st Cir. 2012)(refusing
to apply the chosen law of Colorado because the only alleged connection with Colorado is that the
lawyer who drafted the [contract] was in Colorado. Id. at 107); Curtis 1000, Inc. v. Suess, 24 F.3d
Contracts
371
As noted above, Section 187(2) also permits the parties to choose the law of a state that
lacks a substantial relationship as long as they can show any other reasonable basis for that
choice. Areasonable basis may be the parties familiarity with the chosen law,181 its completeness and maturity,182 or other similar reasons, such as the need to enable a multistate enterprise
to rely on the law of a single state.183
C. Substantive Limitations:PublicPolicy
Because each states public policy limits party autonomy in fully domestic contracts, one
should not expect multistate contracts to avoid these limitations completely. However, the fact
941 (7th Cir. 1994) (disregarding Delaware choice-of-law clause in an Illinois employment contract
because Delawares only connection was that it was the place of the employers incorporation); Curtis
1000, Inc. v. Youngblade, 878 F. Supp. 1224 (N.D. Iowa 1995) (disregarding Delaware choice-of-law
clause in an Iowa employment contract because Delaware had no substantial relationship to contract
and because Delaware law would be repugnant to a fundamental policy of Iowa); CCR Data Sys., Inc.
v.Panasonic Commcns & Sys. Co., 1995 WL 54380 (D.N.H. 1995); Sentinel Indus. Contracting Corp.
v.Kimmins Indus. Serv. Corp., 743 So. 2d 954 (Miss. 1999)(disregarding a Texas choice-of-law clause
in a contract for the dismantlement of a Mississippi ammonia plant and its shipment and reassembly
in Pakistan); Robinson v.Robinson, 778 So. 2d 1105 (La. 2001)(finding that one spouses brief residence in the chosen state was not a sufficient connection for upholding the choice-of-law clause in a
marital property contract); Cable Tel Servs., Inc. v.Overland Contracting, Inc., 574 S.E.2d 31 (N.C.
Ct. App.2002).
181. Restatement (Second) 187, cmt.f.
182.In Radioactive, J.V. v.Manson, 153 F.Supp.2d 462 (S.D.N.Y. 2001), a case involving a music recording contract, the court noted that even if the chosen state of NewYork did not have sufficient contacts,
the parties choice of NewYork law would have been reasonable in light of the fact that NewYork courts
have significant experience with music industry contracts. Id. at471.
183. See, e.g., Exxon Mobil Corp. v. Drennen, 452 S.W.3d 319 (Tex. 2014), rehg denied (Feb. 27,
2015)(although NewYork did not have a substantial relationship with the contract, there was a reasonable basis for choosing New York law because: (1) New York had a well-developed body of law
regarding employee stock and incentive programs and securities-related transactions, and (2)the choice
of NewYork law assured a uniform treatment of Exxons employee incentive programs in all states); 1-
800-Got Junk? LLC v.Superior Court, 116 Cal. Rptr. 3d 923, 926 (Cal. Dist. Ct. App.2010), rehg denied
(Nov. 5, 2010), review denied (Jan. 12, 2011)(a multi-state franchisor has an interest in having its franchise agreements governed by a uniform body of law). In Prows v.Pinpoint Retail Systems, Inc., 868P.2d
809 (Utah 1993), the court acknowledged that, although the chosen state of NewYork had no contacts
with the contract or the parties, the New York choice-of-law clause could be upheld under the other
reasonable basis proviso of Section 187(2)(a) because it would enable one of the parties, a Canadian
corporation doing business in several American states, to rely on the law of a single American state and
to plan accordingly. However, the court held that this proviso does not apply when all the contacts are
located in a single state and when as a consequence, there is only one interested state. Id. at 811 (quoting
Restatement (Second) 187 cmt. d.). After listing Utahs numerous contacts, the court concluded that
Utah is the only state with an interest in the action, id., and disregarded the choice-of-law clause. See
also Exxon Mobil Corp. v.Drennen, 452 S.W.3d 319 (Tex. 2014), rehg denied (Feb. 27, 2015), discussed
infra 41718;
372
that the limitations to party autonomy vary from one state to another raises two preliminary
questions:
(1) Which states limitations will be used as the standard for policing party autonomy
in multistate contracts, namely, which states law will perform the role of the lex
limitativa,and
(2) Which precise level or gradation of public policy should be employed for this function?
1.Which States Public Policy? (The Lex Limitativa)

Regarding the first question, the two main candidates for the role of the lex limitativa are (1)the
lex fori, and (2)the law that would be applicable in the absence of a choice-of-law clause (i.e.,
the lex causae).184 The lex fori is relevant because party autonomy operates only to the extent
that the lex fori permits. The lex causae is relevant because, when party autonomy operates, it
displaces the lex causae. If the application of the chosen law exceeds the public policy limits of
both the lex fori and the lex causae, then the chosen law will not be applied.185 The difficulty
arises when the application of the chosenlaw:
(1) Complies with the public policy limits of the lex fori but violates the limits of the lex
causae;or
(2) Complies with the public policy limits of the lex causae, but violates the limits of the
lexfori.
Table34, following page, depicts the various possibilities and the positions of various legal
systems on which states law will function as the lex limitativa. The first column represents the
forum state, the second column the state whose law the parties have chosen, and the third column the state whose law would have been applicable in the absence of such a choice (lex causae). In these columns, the use of lowercase letters indicates that the particular state restricts
party autonomy and does not uphold the parties choice, while the use of uppercase letters
indicates that the particular state does not restrict party autonomy and uphold the choice. In
all four patterns portrayed in Table34, the parties have chosen the law that does not restrict
party autonomy (uppercase letters). In the first two patterns, the chosen law exceeds the party
autonomy limits of the lex fori (lowercase letters) but not the lex causae, whereas in the last two
patterns the chosen law exceeds the limits of the lex causae but not the lexfori.
The positions of the various legal systems can be clustered into three groups:
(a) Those that assign the role of the lex limitativa to the lex fori. These systems would
uphold the choice of law in patterns 3 and 4, but not in patterns 1and2.
184. The option of policing party autonomy through the chosen law is circular and should be eliminated
for this reason. In some cases, the forum state and the states of the lex causae coincide, or impose the
same limits on party autonomy. The following discussion focuses on cases in which these states, or their
limits, do not coincide.
185. Conversely, when the application of the chosen law would not exceed the limitations of either the
lex fori or the lex causae, the chosen law will be applied without problems.
Contracts
373
Table34. Lex Limitativa

#
Lex fori
Chosen Law
Lex causae
Lex fori systems
Lex causae systems
1
2
state a
state a
STATE B
STATE C
STATE B
STATE B
Not upheld
Not upheld
Upheld
Upheld
3
4
STATE A
STATE A
STATE A
STATE C
state b
state b
Upheld
Upheld
Not upheld
Not upheld
(b) Those that assign the role of the lex limitativa to the lex causae. These systems would
uphold the choice of law in patterns 1 and 2, but not in patterns 3 and4;and
(c) Those that follow a combination of these two positions for different types of contracts.
a. lex fori systems
The majority of legal systems outside the United States belong to the first group, that is, they
assign the role of the lex limitativa exclusively to the lex fori.186 These systems do not impose a
public policy limitation specifically addressing party autonomy in multistate contracts. Instead,
they all impose the general ordre public exception not limited to contracts, which authorizes
the court to refuse to apply a foreign law that is repugnant to the forums public policy. Some
of those contain an additional, albeit partly overlapping, exception in favor of the mandatory
rules of the lex fori.187
This position is unduly liberal in patterns 3 and 4, and too restrictive in patterns 1 and
2.For example, in pattern 1, the parties have chosen a law that would have been applicable even
if they had not chosen it. In such a case, there is no good reason to interpose the more restrictive law of the forum state and disregard the parties choice.188 By definition, the forum state
lacks those contacts that would make its law applicable, and thus would justify interposing
186. For documentation and discussion, see Symeonides, Codifying Choice of Law 49153. In addition to
all traditional systems that recognize party autonomy, this majority includes nearly half (34 out 72)of the
codifications adopted in the last 50years. See, e.g., the codifications of:Afghanistan (Art. 35), Angola (Art.
22), Algeria (Art. 18), Burundi (Art. 10), Cape Verde (Art. 22), Central African Republic (Art. 47), Chad
(Art. 72), Cuba (Art. 21), East Timor (Art. 21), Gabon (Art. 30), Guatemala (Art. 31), Guinea-Bissau
(Art. 22), Japan (Art. 42), Jordan (Art. 29), North Korea (Arts. 5, 13), Liechtenstein (Art. 6), Mexico (Art.
12.V), Mongolia (Art. 540.1), Mozambique (Art. 22), Paraguay (Art. 22), Qatar (Art. 38), Rwanda (Art.
8), Somalia (Art. 28), United Arab Emirates (Art. 27), Vietnam (Art. 759.3), and Yemen (Art. 36). See also
Hague Convention of 15 June 1955 on the law applicable to international sales of goods, Art.6.
187. See the following codifications and the pertinent articles indicated in parentheses:Armenia (Arts.
1258, 1259), China (Arts. 4, 5), FYROM (Arts. 5, 14), South Korea (Arts. 7, 10), Macau (Arts. 20, 21),
Moldova (Arts. 1583, 1584), Taiwan (Arts. 7, 8), and Venezuela (Arts. 8, 10). See Hague Convention of
22 Dec. 1986 on the Law Applicable to Contracts for the International Sale of Goods, Arts. 17, 18; Hague
Convention of 5 July 2006 on the Law Applicable to Certain Rights in Respect of Securities held with an
Intermediary, Arts. 11.1 and11.2.
188. Unless of course the foreign law is so outrageous as to meet the high threshold of offending the
forums sense of justice and fairness.
374
the public policy embodied in that law. Pattern 2 is functionally analogous because, although
the parties chose the law of a state other than the lex causae, they remained within the public
policy limits of the lex causae. Again, there is no good reason to interfere with the parties
choice in this pattern. Sophisticated codifications seek to avoid this problem by requiring a
close connection with the forum state before applying the ordre public exception. For example, Article 21(2) of the Belgian codification provides that, in applying the ordre public exception, special consideration is given to the degree in which the situation is connected with the
Belgian legal order and to the significance of the consequences produced by the application of
the foreign law. Unfortunately, very few codifications require such a connection.
In pattern 3, the chosen state is also the forum state, but even that factor does not necessarily mean that it is appropriate to uphold the parties choice. The same is true of the functionally
analogous pattern 4.The interposition of the liberal limits of the lex fori to uphold a choice of
a law exceeding the public policy limits of the lex causae is particularly problematic in cases
in which the forum has only a tenuous connection with the case and its law does not single
out weak parties, such as consumers and employees, for protective treatment. It becomes even
more problematic with the advent of forum selection clauses, which have become at least as
ubiquitous as choice-of-law clauses. As we shall see later, it enables the economically stronger
party to impose well-calculated combinations of choice-of-law-and-forum clauses that deprive
the weaker party of any meaningful protection. Suppose for example that the only reason the
parties chose the law of State A is that, in the absence of such a choice, the law of State b
would govern the contract and would consider the contract illegal. In such a case, an exclusive
choice-of-forum clause choosing the courts of State A would ensure the evasion of the illegality rules of State b with impunity.
b. lex causae systems
American law takes the opposite position, by assigning the role of lex limitativa to the lex
causae rather than to the lex fori as such. The logic of this position is that the only state with
a legitimate interest to allow or disallow the parties choice is the state whose law would have
been applicable in the absence of choice. It is that states law that the parties choice would
displace, and hence it is for that state to determine whether to allow such a displacement
and to what extent. Private parties should not be free to evade the public policy of that state
merely by choosing the law of another state. Thus, in the hypotheticals depicted in Table34,
American law would uphold the parties choice in patterns 1 and 2, but not in patterns 3 and
4.The Louisiana and Oregon codifications state this position in express statutory language, the
Uniform Commercial Code (U.C.C.) does so obliquely, and the Restatement (Second) does
so in a black-letter section.189
Article 3540 of the Louisiana codification provides that the law chosen by the parties applies
except to the extent that that law contravenes the public policy of the state whose law would
189. Article 29 of the Puerto Rico draft codification takes the unique position that the chosen law is
applied unless it violates restrictions on party autonomy imposed by both the lex fori and the lex causae.
For an explanation of the rationale of this provision by its drafter, see S. Symeonides, Codifying Choice
of Law for Contracts:The Puerto Rico Projet, in J. Nafziger & S. Symeonides (eds.), Law and Justice in a
Multistate World:Essays in Honor of Arthur T.von Mehren 419, 42224 (2002).
Contracts
375
otherwise be applicable in the absence of that choice.190 The Oregon codification provides
that the law chosen by the parties does not apply to the extent that its application would
[c]ontravene an established fundamental policy embodied in the law that would otherwise
govern the issue in dispute in the absence of a choice-of-law clause.191 Neither codification
assigns an independent role to the ordre public of the lexfori.
The pertinent section of the U.C.C., Section 1-301, does not contain a public policy limitation, but it does restrict party autonomy through the limits of the lex causae. Subsection
(c)of Section 1-301 lists several other sections of the U.C.C.and provides that, if any one of
those sections designates the state of the applicable law for the particular transaction, that law
governs and a contrary agreement is effective only to the extent permitted by the law so specified.192 Thus, the law so specified as applicable to the particular transaction in the absence of
party choice (i.e., the lex causae, rather than the lex fori) delineates the limits of party autonomy under the U.C.C.regime.
Finally, Section 187(2)(b) of the Restatement (Second), which is followed in most states
of the United States, also provides that the state whose public policy may defeat the parties
choice of law is not the forum state qua forum. Instead, it is the state whose law, under Section
188, would govern the particular issue if the parties had not made an effective choice (i.e., the
lex causae).193 It is true that, unlike the Louisiana and Oregon codifications, the Restatement
(Second) also assigns a residual but highly exceptional role to the public policy of the forum.
Section 90 of the Restatement (Second), which is not limited to contracts, preserves the traditional ordre public exception of the lex fori as the last shield against entertaining a foreign
cause of action the enforcement of which is contrary to a strong public policy of the forum.194
The accompanying Restatement comments explain that this exception should be employed
only rarely.195 The comments quote Judge Cardozos classic standard, according to which the
exception applies only when the foreign law would violate some fundamental principle of justice, some prevalent conception of morals, some deep-seated tradition of the commonweal.196
Importantly, the Restatement recognizes the difference between the two public policies, at least
190. La. Civ. Code art. 3540 (1992). For a discussion of this provision by its drafter, see S.Symeonides,
Private International Law Codification in a Mixed Jurisdiction: The Louisiana Experience, 57 RabelsZ
460, 49799, 478 (1993).
191. Or. Rev. Stat. 15.355 (2015). The same section also provides that the chosen law does not apply
to the extent its application would [r]equire a party to perform an act prohibited by the law of the state
where the act is to be performed under the contract or [p]rohibit a party from performing an act
required by the law of the state where it is to be performed under the contract. Id. For discussion of these
provisions, see S. Symeonides, Oregons Choice-of-Law Codification for Contract Conflicts:An Exegesis,
44 Willamette L.Rev. 205 (2007).
192. U.C.C. 1-301(c) (2012). The listed sections are 2-402 (sales of goods); 2A-105 and 2A-106
(leases); 4-102 (bank deposits and collections); 4A-507 (fund transfers); 5-116 (letters of credit); 6-103;
(bulk transfers); 8-110 (investment securities); and 9-301 through 9-307 (secured transactions).
193. See Restatement (Second) 187(2)(b). In addition, the Restatement provides that the state of the lex
causae must have a materially greater interest than the chosen state in the determination of the particular issue. Id. In most cases, a conclusion that a state is the state of the lex causae is based, at least in large
part, on a conclusion that that state has a materially greater interest in applying itslaw.
194. Restatement (Second) 90 (emphasis added).
195. Id. 90cmt.c.
196. Id. (quoting Loucks v.Standard & Oil Co. of N.Y., 120 N.E. 198, 202 (N.Y. 1918)).
376
as one of degree, by stating that the public policy contemplated by Section 187need not be
as strong as would be required to justify the forum in refusing to entertain suit upon a foreign
cause of action under the rule of 90.197
Thus, for all practical purposes, the Restatement (Second) assigns the role of the lex limitativa to the lex causae rather than the lex fori. As the California Supreme Court noted in a case
following the Restatement (Second),
[In] a case in which California is the forum, and the parties have chosen the law of another state,
but the law of yet a third state, rather than Californias, would apply absent the parties choice ...
a California court will look to the fundamental policy of the third state in determining whether
to enforce the parties choice of law.198
Stone Street Services, Inc. v. Daniels199 involved this scenario. An annuity contract between a
Pennsylvania company and a mentally disabled Kansas resident contained Pennsylvania forum-
selection and choice-of-law clauses. In an action for breach of that contract filed in federal court
in Pennsylvania, the court held the choice-of-law clause unenforceable because the application
of Pennsylvania law would violate a fundamental policy embodied in a Kansas statute. The statute prohibited a party from tak[ing] advantage of the inability of the consumer reasonably to
protect the consumers interests because of physical infirmity, ignorance, illiteracy, inability
to understand the language of the agreement or similar factor.200 Following Section 187 of the
Restatement (Second), the court noted that, although Pennsylvania had sufficient contacts to initially sustain the clause, the clause was unenforceable because:(1)Kansas law would have been
applicable in the absence of the clause, (2)Kansas had a materially greater interest in applying
its law,201 and (3)the application of Pennsylvania law, which was less protective of the consumer
than Kansas law, would violate Kansass fundamental policy embodied in the above statute.202
c. hybrid systems
In between the above two positions, there exist several combinations between the standards
of the lex fori and those of another state, which may be either the state of the lex causae or a
197. Id. 187cmt.g.

198. Nedlloyd Lines B.V.v.Super. Ct., 834P.2d 1148, 1152 n.5 (Cal. 1992). For other cases illustrating
the Restatements position, see, e.g., DeSantis v.Wackenhut Corp., 793 S.W.2d 670, 677 (Tex. 1990), cert.
denied, 498 U.S. 1048 (1991) (chosen law may not thwart or offend the public policy of the state the
law of which ought otherwise to apply); Long v.Holland Am. Line Westours, Inc., 26P.3d 430 (Alaska
2001) (invalidating a Washington choice-of-law clause because Washington law, which permitted contractual shortening of the limitation period, would violate the fundamental policy of Alaska law, which
would be applicable in the absence of a contrary choice-of-law clause).
199. 2000 WL 1909373 (E.D. Pa. Dec. 29,2000).
200. Id. at *3 (quoting Kan. Stat. Ann. 50-627(b)(1)).
201. See id. at *5 (noting that Kansas has a materially greater interest than Pennsylvania [because]
the contract was negotiated and executed in Kansas, and was allegedly approved by [plaintiff], then a
resident of Kansas, [and the] provisions of the Kansas [statute] were specifically designed to protect
Kansas residents like [plaintiff].).
202.See id. at *4 (The diminished capacity unconscionability provision in the Kansas statute states a
fundamental policy of the state of Kansas, particularly in light of the explicit non-waiver provision contained in the law. Afundamental policy may be embodied in a statute which is designed to protect a
Contracts
377
third state. The Rome Convention on the Law Applicable to Contractual Obligations 1980 was
among the first to adopt such a combination,203 which the Rome IRegulation preserved and
several national codifications emulated. Under Rome I, the chosen law must remain within the
limitations imposed by the ordre public and the overriding mandatory provisions of the lex
fori.204 However, (1)in consumer and employment contracts, the chosen law must also remain
within the limitations imposed by the simple mandatory rules of the lex causae;205 and (2)in
all other contracts, within the limitations of the mandatory rules of the country in which all
other elements of the situation (other than the parties choice) are located.206 Several national
choice-of-law codifications outside the EU follow this model, at least to the extent they protect
consumers and employees through the mandatory rules of the lex causae.207
The Mexico City Convention and the Hague Contracts Principles follow a variation of the
above position. Article 18 of the Mexico City Convention reiterates the classic ordre public
exception, while paragraph 1 of Article 11 preserves the application of the mandatory rules
of the lex fori. Paragraph 2 of Article 11 provides that [i]t shall be up to the forum to decide
when it applies the mandatory provisions of the law of another State with which the contract
has close ties.208 In a similar fashion, Article 11 of the Hague Principles restates the ordre
public exception and preserves the application of the mandatory rules of the lex fori. The same
article also provides that the lex fori determines when a court may or must apply or take into
account:(1)the overriding mandatory provisions of another law, or (2)the public policy of
the state whose law would be applicable in the absence of a choice of law (lex causae).
person against the oppressive use of superior bargaining power. [A]pplying Pennsylvania law would
substantially erode the protections available under Kansas law.).
203. See Rome Convention on the Law Applicable to Contractual Obligations of 1980, arts. 57,16.
204. See Rome I, art. 21 (ordre public); art. 9(2) (overriding mandatory provisions of the lex fori); see
also art. 9(3), which allows courts to give effect to the overriding mandatory provisions of the place of
performance in so far as those provisions render the performance of the contract unlawful.
205. See Rome I, arts. 6(2) and8(1).
206. See Rome I, art. 3(3). Cf. id. art. 3(4) (mandatory rules of EU law); id. art. 11(5) (mandatory rules
of the lex rei sitae).
207. See the codifications of Albania (Art. 52.2 (consumers only)); FYROM (Arts. 2425); Japan (Arts.
1112); South Korea (Arts. 2728); Liechtenstein (Arts. 45, 48); Quebec (Arts. 31173118); Russia (Art.
1212); Serbia (Arts. 141142); Switzerland (Arts. 120121); Turkey (Arts. 2627); Ukraine (Art. 45). At
least a dozen of the codifications that subject the chosen law to the limits of the ordre public and mandatory rules of the lex fori provide in addition that the court may apply or take into account the mandatory rules of a third country with which the situation has a close connection. See the codifications
of Argentina (draft Arts. 25992600); Azerbaijan (Arts. 45, 24.4); Belarus (Arts. 1099, 1100); Georgia
(Art. 35.3); Kazakhstan (Arts. 1090, 1091); Kyrgyzstan (Art. 11.73, 1174); Quebec (Arts. 3079, 3081);
Russia (Arts. 1192, 1193); Serbia (draft Arts. 40.2, 144); Tajikistan (Arts.11971198); Tunisia (Arts. 36,
38); Turkey (Arts. 5, 6, 31); Ukraine (Arts. 12, 14); Uruguay (Arts. 5.1, 6.12); and Uzbekistan (Arts. 1164,
1165). See also Hague Convention of 14 Mar. 1978 on the Law Applicable to Agency, Arts. 16; 17. Article
9(3) of Rome I.It is safe to assume that the state of the lex causae would always qualify as a state that
has a close connection because, ex hypothesi, it is the state whose law would have been applicable in
the absence of a choice-of-law clause. This close connection will always render relevant the mandatory
rules of the lex causae but will not necessarily guarantee their application because the pertinent articles
are phrased in discretionaryterms.
208. Inter-American Convention on the Law Applicable to International Contracts, signed at Mexico,
D.F., Mexico, on Mar. 17, 1994 (Mexico City Convention), Art.11.
378
2.Which Level ofPublic Policy?

After identifying the state whose law defines the limits of party autonomy (lex limitativa), the
next step is to establish the threshold or line beyond which the parties choice of another law
will be unenforceable. If any difference between the chosen law and the lex limitativa-causae
would defeat the parties choice, then party autonomy would become a specious gift. As one
court said, [t]he result would be that parties would have the right to choose the application of
another states law only when that states law is identical to [the lex causae]. Such an approach
would be ridiculous.209 Thus, there is a consensus on the need for a higher public-policy
threshold for multistate contracts than for fully domestic contracts. Predictably, however, the
various systems differ in defining this threshold.
The Restatement (Second) sets a fairly high threshold, at least in verbiage. As noted earlier,
Section 187(2)(b) provides that, before invalidating a choice-of-law clause, the court must be
satisfied that:(1)the chosen law is contrary to a fundamental policy of the state of the lex
causae, and (2)that state has a materially greater interest than the chosen state in the determination of the particular issue.210 Recognizing that the qualifier fundamental is not easily
defined, the Restatement (Second) does not attempt to define it.211 It does, however, provide
a few examples of rules that embody a fundamental policy, such as statutes declaring certain
contracts illegal or designed to protect one party from the oppressive use of superior bargaining power (such as statutes protecting insureds against insurers).212 As previously noted, the
Restatement also states that, to be fundamental in the sense of Section 187(2)(b), a policy need
not be as strong as the policy that justifies a refusal to apply foreign law under the traditional
ordre public exception.213
Courts do not always accept (or understand) all of the above fine distinctions, and courts
that do accept them often struggle to apply them in practice. One example is Machado-Miller
v. Mersereau & Shannon, LLP.214 In this case, an Oregon court had to determine whether
Californias policy against noncompete agreements was fundamental under Section 187(2)(b)
so as to defeat an Oregon choice-of-law clause in an Oregon employment contract. The court
expressed serious misgivings about the facility and exactness of such a determination:
209. Cherokee Pump & Equip., Inc. v.Aurora Pump, 38 F.3d 246, 252 (5th Cir. 1994). See also Bethlehem
Steel Corp. v.G.C. Zarnas & Co., 498 A.2d 605 (Md.1985).
210. Restatement (Second) 187(2)(b).
211. The Oregon codification provides that a policy is fundamental only if the policy reflects objectives
or gives effect to essential public or societal institutions beyond the allocation of rights and obligations
of parties to a contract at issue. Or. Rev. Stat. 15.355(2) (2015). The codification also provides that the
chosen law does not apply to the extent that its application would:(a)Require a party to perform an act
prohibited by the law of the state where the act is to be performed under the contract; [or] (b)Prohibit a
party from performing an act required by the law of the state where it is to be performed under the contract[.] 15.355(1). For the background and rationale of these provisions, see S. Symeonides, Codifying
Choice of Law for Contracts:The Oregon Experience, 67 RabelsZ 726, 2003, 73942.
212. Restatement (Second) 187 cmt. g. The Restatement also provides examples of rules that do not
embody a fundamental policy, such as statutes of frauds, rules tending to become obsolete, and general
rules of contract law, such as those concerned with the need for consideration.Id.
213. Id.
214. 43P.3d 1207 (Or. Ct. App.2002).
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379
To announce that a policy or a right is fundamental is to announce a conclusion and not a

premise, and the reasoning that leads to the conclusion is almost always obscure, hopelessly subjective, or expressed in verbal formulations that are of little help. Further, whether a particular
interest is deemed fundamental under such indeterminate formulations depends on the level
of generality at which the Court chooses to identify it. To the extent the interest is described at
a high level of generality, it is likely to be fundamental, and vice versa. Further, every piece of
legislation, even the most apparently trivial, implements and therefore indicates the presence of
some larger policy, which, in turn, serves an even larger one. A speed limit is not itself a fundamental policy statement, but its purpose is to promote highway safety, which is one way to
protect the health, welfare and safety of citizens, which is, of course, one of the most fundamental
of all public policies.215
Ultimately, the court concluded that Californias policy was fundamental in the dictionary
sense [of] basic, underlying and primary, because it was contained in a statute phrased at a
high level of generality216 and clearly stating a policy of prohibiting noncompete agreements
in order to maximize competition and minimize restraints on trade.217
IV. THE CHOICE-OF-LAW AGREEMENT

AND ITS MODALITIES
A. Which Law Determines Existence and Validity
A choice-of-law clause is itself an agreement that is usually contained in the contract that the
clause purports to submit to the chosen law. Before one can properly speak of such an agreement, however, one must first verify that it came into existence. Thus, there is always a preliminary question: which law will determine the existence and validity of the choice-of-law
agreement itself, at least with regard to three categories of issues:
(a) Whether the parties have capacity to contract;
(b) Whether the parties have expressed their consent to the choice-of-law agreement, and
whether that consent was free of defects, such as duress or error;and
(c) Whether the agreement, or the contract containing it, was clothed with the
requiredform.
There are several possible answers to the above question but, for purposes of this discussion, they can be grouped intotwo:
(1) The first is to exempt these preliminary issues from the scope of party autonomy and
to decide them under either:(a)the substantive law of the forum qua forum, or (b)the
215. Id. at1211.

216. Id. at1212.
217. The statute provided that every contract by which anyone is restrained from engaging in a lawful
profession, trade, or business of any kind is to that extent void. Cal. Bus. & Prof. Code 16600 (2015).
380
law that would be applicable under the forums choice-of-law rules in the absence of a
choice-of-law agreement (the lex causae).
(2) The second option is to not exempt these issues from the scope of party autonomy and
thus decide them under the law chosen in the agreement.
Each option has advantages and disadvantages. For example, the lex fori option has the
advantage of practicality and judicial economy. In addition, one can defend it on the ground
that, to the extent that a choice-of-law agreement displaces some of the forums choice-of-law
rules, the forum should be free to determine under its own substantive standards whether such
an agreement exists before allowing the displacement.
The option of applying the chosen law entails a certain degree of bootstrapping. It evoke[s]
the unavoidable imagery of the chicken and the egg test.218 As one commentator noted, if the
choice of law is contractual, but the parties do not agree that they made a binding contract (or
lacked contractual capacity), it is hard to see how the law which would have governed that both-
alleged-and-denied contract can have a legitimate role in resolving the dispute about formation.219
Finally, the option of applying the lex causae avoids the bootstrapping problem, but it also
undercuts much of the convenience and efficiency that make choice-of-law clauses attractive to
courts and litigants in the firstplace.
1.Capacity
The bootstrapping problem is most serious with regard to issues of contractual capacity. [T]he
ability of individuals to confer upon themselves a contractual capacity which they would otherwise lack ought not to be a matter of party choice.220 Most foreign legal systems,221 as well
218. C-P. Calliess (ed.), Rome Regulations 68 (2011).
219. Id. at6869.
220.Briggs, supra note 112, at 39596.
221. See the following codifications and the pertinent articles shown in parentheses:Afghanistan (Art.
17); Albania (Art. 11); Algeria (Art. 10); Angola (Arts. 25, 28); Argentina (draft Art. 2616); Armenia
(Art. 1265); Austria (Art. 12); Azerbaijan (Art. 10); Belarus (Art. 1104); Belgium (Art. 34); Bulgaria
(Art. 50); Burundi (Art. 2); Cape Verde (Arts. 25, 28); Central African Repub. (Art. 40); China (Art.
12); Croatia (Art. 14); East Timor (Arts. 24, 27); Estonia (Art. 12); FYROM (Art. 15); Gabon (Art. 32);
Germany (Art. 7); Guinea-Bissau (Art. 25, 28); Hungary (Art. 10); Italy (Art. 23); Japan (Art. 4); Jordan
(Art. 12); Kazakhstan (Art. 1095); North Korea (Art. 17); South Korea (Arts. 13, 15); Kyrgyzstan (Art.
1178); Latvia (Art. 8); Liechtenstein (Art. 12); Lithuania (Art. 1.16); Louisiana (Art. 3539); Macau (Art.
27); Madagascar (Art. 28); Mauritania (Art. 7); Mexico (Art. 13.II); Moldova (Art. 15891590, 1592);
Mongolia (Arts. 543544); Mozambique (Arts. 25, 28); Netherlands (Art. 11); Oregon (Art. 15.330); Peru
(Art. 2070); Poland (Arts. 1113); Portugal (Arts. 25, 28); Puerto Rico (Art. 33); Qatar (Art. 11); Quebec
(Arts. 3083, 30853087); Romania (Arts. 11, 17); Russia (Art. 1197); Serbia (draft Art. 147); Slovakia
(Art. 3); Slovenia (Art. 13); Somalia (Art. 11); Sudan (Art. 11.1); Switzerland (Art. 36); Taiwan (Art. 10);
Tajikistan (Art. 1201); Tunisia (Art. 40); Turkey (Art. 9); Ukraine (Art. 18); United Arab Emirates (Art.
11); Uruguay (Art. 20); Uzbekistan (Art. 1169); Vietnam (Arts. 761763, 765); and Yemen (Art. 25).
Rome Ialso exempts capacity from the scope of party autonomy, albeit through a circuitous route. Article
1(2)(a) exempts capacity from the scope of Rome I, but without prejudice to Article 13. Article 13 provides that, in contracts concluded between persons who are in the same country, a natural person who
would have capacity under the law of that country may invoke his incapacity under the law of another
country only if the other party knew or should have known of that incapacity. In any event, the combined
result of these two provisions is that the contractually chosen law does not govern contractual capacity.
Contracts
381
as international conventions,222 avoid the bootstrapping problem by:(1)exempting contractual

capacity from the scope of party autonomy, and (2)subjecting capacity to autonomous choice-
of-law rules that typically refer this issue to the parties personal law (i.e., the law of their
domicile, residence, or nationality).
The Restatement (Second) does not address the issue of capacity to enter into a choice-
of-law agreement. However, Section 198 provides for the law governing the parties capacity
to contract,223 and this includes the parties capacity to enter into a choice-of-law agreement.
Section 198 provides that capacity is determined by the law selected by application of the
rules of 187188.224 Section 187 authorizes choice-of-law agreements, while Section 188
determines the applicable law in the absence of an effective choice-of-law agreement (the lex
causae).225 Thus, the cross-reference to these two section in Section 198 means that the parties
capacity to enter into a choice-of-law agreement is governed by the law chosen by the parties
under Section 187, but subject to the policing mechanisms of the lex causae as determined
under Section 188, which are discussed later. The Restatement comments confirm this reading. They provide that the question of whether the parties had legal capacity to enter into the
particular contractin this case, the choice-of-law agreementis determined by the law
chosen by the parties, if they have made an effective choice.226
The limits imposed on party autonomy by the fundamental policy of the state of the lex
causae, and its interests in applying its law, determine the effectiveness of that choice. Thus, if in
a contract that would otherwise be governed by the law of State X (lex causae), the parties chose
the law of State Y, the parties capacity to choose that law will, in principle, be governed by the
law of State Y.If that law confers capacity, but the law of State X does not, the choice-of-law agreement will be valid as to capacity, unless:(1)State X has a materially greater interest than State
Y in applying its law; and (2)the application of State Y law would be contrary to a fundamental
policy of State X.If either of these conditions is not met, the agreement will be valid by sheer
virtue of the parties choice, a choice that at least one of them did not have the capacity tomake.
The Louisiana227 and Oregon228 codifications avoid this bootstrapping problem by exempting the issue of capacity from the scope of party autonomy.
2. Consent and Formation

The bootstrapping phenomenon can also occur if one applies the chosen law for determining
whether the parties actually expressed their consent to the choice-of-law agreement (or the
222. See Hague Sales Convention of 1955, art. 5; Hague Agency Convention, art. 2; Hague Principles, art.
1(3)(a); Mexico City Convention, art.5.
223. Restatement (Second) 198 (emphasis added).
225. See supra 352.
226. Restatement (Second) 198 cmt. a (emphasis added).
227. See La. Civ. Code Art. 3539 (2015) (subjecting capacity to an autonomous choice-of-law rule). See
also id. Art. 3540cmt. d (The capacity of the parties to choose the applicable law is governed by the same
law that is applicable to contractual capacity in general under Article 3539, supra. Thus the bootstrapping problem is avoided with regard to capacity).
228. See Or. Rev. Stat. 15.330 (2015) (subjecting capacity to an autonomous choice-of-lawrule).
382
contract containing it), for example, whether there was a meeting of the minds, and whether
that consent was free of defects, such as duress or error. As Professor Briggsnoted,
Problems of contractual formation are notorious for throwing up puzzles which test logic to
destruction:if the parties do not agree that they made a binding contract, it is hard to see how
the law which governs or would have governed that both-alleged-and-denied contract can have
any legitimate role in resolving the dispute about formation.229
The Restatement (Second) avoids the bootstrapping problem by assigning the validity of
the choice-of-law agreement to the substantive law of the forum. It provides:
[A]choice-of-law provision, like any other contractual provision, will not be given effect if the
consent of one of the parties to its inclusion in the contract was obtained by improper means, such
as . . . duress, or undue influence, or by mistake. Whether such consent was in fact obtained by
improper means . . . will be determined by the forum in accordance with its own legal principles.230
The Louisiana codification also avoids the problem by providing that [t]he existence, validity, and effectiveness of a choice-of-law agreement is decided according to the law applicable to
the particular issue under Articles 3537-39, that is, not under Article 3540 which provides for
party autonomy.231 The Oregon and Puerto Rico codifications also exempt from the scope of
party autonomy the issue of consent to, and formation of, the contract (and thus of the choice-
of-law clause as well), and instead refer it to the lex causae.232
3.Form
Most choice-of-law agreements are express and written into the contract they purport to govern. Oral choice-of-law agreements are rarer than oral contracts233 and even rarer in written
contracts.234 Also rare are disputes regarding the proper form of a choice-of-law agreement.
Nevertheless, at least in theory, a distinction is (or should be) made between:(1)the form of
the choice-of-law agreement, and (2)the form of the contract that the agreement subjects to
the chosen law. Some foreign codifications provide separate rules for the two issues, whereas
others provide only one rule applicable to the form of both the contract and any of its terms,
including the choice-of-law agreement.
The codifications of the first group provide an autonomous substantive (as opposed to conflicts) rule for determining the formal sufficiency of the choice-of-law agreement:The agreement
229.Briggs, supra note 112, at9495.

230. Restatement (Second) 187, cmt.b.
231. La. Civ. Code Art. 3537, cmt. a (2015).
232. See Or. Rev. Stat. 15.335 (2015); Puerto Rico draft codif. Art. 34. For the position of foreign legal
systems on this issue, see Symeonides, Codifying Choice of Law 13234.
233. Burchett v.MasTec North America, Inc., 93P.3d 1247 (Mont. 2004), is one of very few recent cases to
find an implied choice of law in an oral contract.
234. The UN Convention on Contracts for the International Sale of Goods (CISG), see supra 349, provides that the contract (Art. 11)or its modification (Art. 29)need not be in writing. Even so, oral choice-
of-law clauses remainrare.
Contracts
383
may be express or it may be inferred either from the terms of the contract or, in the words of
Rome I, from the circumstances of the case,235 such as the conduct of the parties. More than a
dozen codifications outside the EU,236 and several conventions,237 similarly allow the choice-of-
law agreement to be inferred from the circumstances. Obviously, an agreement inferred from
the circumstances need not be clothed with any particular form. Reflecting this logic, The Hague
Contracts Principles state that [a]choice of law is not subject to any requirement of form.238
The Restatement (Second) seems to subscribe to this logicalbeit obliquelyto the extent
it authorizes an implied choice of law to be derived from the provisions of the contract. As an
example, the comments under Section 187 mention the use of legal expressions or the reference to legal doctrines that are peculiar to the law of a particular state.239 The Restatement distinguishes an implied choice from a hypothetical choice by providing that it does not suffice to
demonstrate that the parties, if they had thought about the matter, would have wished to have
the law of a particular state applied.240 The Louisiana and Oregon codifications also allow an
implied choice of law.241
With regard to the form of the contract as a whole, at least a dozen codifications contain a choice-of-law rule exempting this issue from the scope of party autonomy and referring it to a law or laws other than the law chosen by the parties.242 Most other codifications,243
235. Rome Iart.3(1).
236. See, e.g., the codifications of Albania (Art. 45.2); Argentina (draft Art. 2651); Belarus (Art.
1124.2); FYROM (Art. 21.2); Kazakhstan (Art. 112.2); South Korea (Art. 25.1); Liechtenstein (Art.
39.1); Madagascar (33); Moldova (Art. 1611); Qatar (Art. 27); Russia (Art. 1210.2); Serbia (Art. 136.2);
Switzerland (Art. 116.2); Taiwan (Art. 20.1); Tajikistan (Art. 1218.2); Turkey (Art. 24.1); U.A.E (Art.
19.1); Ukraine (Art. 5.2); Yemen (Art.30).
237. See, e.g., Hague Sales Convention art. 7.1; Hague Agency Convention art. 5; Mexico City Convention
art.7.
238. Hague Contracts Principles, art. 5. The article allows the parties to agree otherwise, e.g., that a
future choice of law or a modification of it must be in a particularform.
239. Restatement (Second) 187, cmt.a.
240. Id.
241. The Louisiana codification provides for such a choice if the circumstances indicate that the parties
have clearly relied upon the law of a certain state. La. Civ. Code Art. 3540(2015); id. cmt. e.The Oregon
codification allows for a choice clearly demonstrated from the terms of the contract, but requires an
express and conspicuous choice for standard-form contracts drafted primarily by one party. See Or. Rev.
Stat. 15.350(2) (2015). The Puerto Rico Draft Code provides (Art. 34)that the choice must be express or
must be demonstrated from the provisions of the contract or from the conduct of the parties.
242. See the following codifications and the pertinent articles indicated in parentheses:Afghanistan (Art.
28); Albania (Art. 18); Algeria (Art. 19); Argentina (Art. 2649); Armenia (Art. 1281); Azerbaijan (Art. 12);
Belarus (Art. 1116); Burundi (Art. 5(1)); Guatemala (Arts. 2829); Kazakhstan (Art. 1095); Kyrgyzstan
(Art. 1190); Mexico (Art. 13.IV); Mongolia (Art. 548.28); Russia (Art. 1209); Tajikistan (Art. 1210);
Uzbekistan (Art. 1181); Vietnam (Art. 770); and Yemen (Art. 31). See also 1955 Hague Convention, art.
5; Hague Agency Convention, art.2.
243. See the following codifications and the pertinent articles indicated in parentheses:Angola (Art. 36);
Austria (Art. 8); Bulgaria (Art. 61); Cape Verde (Art. 35); Croatia (Art. 7); Czech Republic (Art. 42); East
Timor (Art. 34); Estonia (Art. 8); FYROM (Art. 7); Germany (Art. 11); Guinea-Bissau (Art. 36); Hungary
(Arts. 30.1, 30.3); Italy (Art. 23); Japan (Art. 10); Jordan (Art. 21); North Korea (Art. 24); South Korea
(Art. 17); Liechtenstein (Art. 8); Lithuania (Art. 1.38); Louisiana (Art. 3538); Macau (Art. 35); Moldova
(Art. 1610); Mongolia (Art. 548.28); Mozambique (Art. 36); Netherlands (Art. 12); Oregon (Or. Rev.
Stat. 15.325); Peru (Art. 2094); Poland (Art. 25); Portugal (Art. 36); Puerto Rico (Art. 32); Qatar (Art.
384
including Rome I,244 and recent conventions,245 provide an alternative-validation-reference rule

that includes a reference to the chosen law. The Restatement (Second) also refers to the chosen
law when it provides that the formalities required to make a valid contract, that is, including
the choice-of-law agreement, are determined by the law selected by application of the rules of
187188.246
Here again, the reference to the chosen law can lead to the bootstrapping phenomenon.
However, this phenomenon is far less objectionable with regard to formal validity than with
regard to capacity or other substantive issues. In fact, it is a small price to pay in return for the
desideratum of contract validation (favor negotii), which permeates most codifications on the
issue of formal validity. The justification rests on the premise that, more often than not, the
various state laws on contractual formalities differ only in minor detail, rather than fundamental policy. For this reason, failure to meet the technical requirements of one state should
not, without more, defeat the intent of the parties to have a binding contract, if such a contract
complies with the form requirements of another state reasonably related to the parties and the
transaction.
B. Timing ofChoice orChange

Although the choice-of-law clause is usually contained in the same contract that the clause
purports to regulate, recent codifications and conventions expressly allow the parties to choose
the applicable law after the conclusion of the contract, or to modify a choice previously made,
as long as they do not prejudice the rights of third parties. For example, Rome Iprovides that
the parties may at any time agree to subject the contract to a law other than that which previously governed it, and that any such change shall not prejudice the formal validity of the
contract or adversely affect the rights of third parties.247 The Oregon codification provides
that the choice of law may be made or modified after the parties enter into the contract, and
that [a]ny choice of law made or modified after the parties enter into the contract must be by
express agreement.248 Similar provisions exist in many other conventions249 and codifications
29); Quebec (Art. 3109); Romania (Art. 71); Slovakia (Art. 4); Slovenia (Art. 8); Somalia (Art. 20); Sudan
(Art. 11.13c); Switzerland (Art. 124); Taiwan (Art. 16); Tunisia (Art. 68); Turkey (Art. 7); Ukraine (Art.
31); Uruguay (draft Art. 43); Venezuela (Art. 37). For a rule referring formalities exclusively to the law
governing the substance of the contract, see Gabon codif. Art.57.
244. See Rome Convention art. 9; Rome Iart. 11. However, the alternative-validation-rule of paragraphs
13 of Article 9 does not apply to contracts with passive consumers. The form of those contracts is governed by the law of the consumers habitual residence. The Japanese also allow bootstrapping with regard
to contracts in general (see art. 10 which provides an alternative-validation-rule) but avoids it in consumer contracts by requiring, under certain conditions, the application of the mandatory rules of the passive consumers habitual residence to issues of formal validity, even if the contract is otherwise governed
by another law. See Japanese codif. Arts. 11 (3)(5).
245. See Hague Sales Convention of 1955, art. 11, Mexico City Convention, art.5.
247. Rome I, art.3(2).
248. Or. Rev. Stat. 15.350(3) (2015). See also La. Civ. Code art. 3540cmt. e (2015).
249. See Mexico City Convention art. 8; Hague Sales Convention art. 7(2); Hague Contracts Principles
art.2.3.
Contracts
385
outside the EU.250 The Restatement (Second) does not address these issues, but general contract
principles should lead to the same result.
A different question arises when the chosen law itself changes because of legislative or judicial action after the choice-of-law agreement. The question then is whether the contract should
be governed by the chosen law as it was at the time of the agreement or, instead, by the changed
law. American case law does not shed any light on this question, and none of the foreign codifications addresses it. In searching for an answer, the text of the clause and the parties intent,
if it can be ascertained, should be the starting point and perhaps the controlling factor. For
example, some contracts contain stabilization clauses specifically designed to guard against
subsequent changes in the chosen law.251 However, in the vast majority of cases, the contract
does not address this issue. In the absence of specific evidence, inferring the parties intent is
a risky proposition because one can think of good arguments for opposing inferences. The
parties could have chosen the law of State X, (1)because of the specific substantive content of
that law, as it then was; or (2)because of their preference for the general solutions of State X,
whatever they may be at the time of the dispute.
English law, as well as under Rome I, distinguishes between choice of law, on one hand,
and incorporation by reference, on the other. In the case of the former, the chosen law applies
as it is at the time of the dispute (i.e., with the intervening changes in that law). In the case of
incorporation by reference, the incorporated law applies as it was at the time of the incorporation (i.e., without any intervening changes).252
Perhaps a similar solution is possible under American law. The Restatement (Second) distinguishes between a choice of law and incorporation by reference, but in a different context.
Incorporation by reference is the term the Restatement uses for issues that, in the words
of subsection 1 of Section 187, the parties could have resolved by an explicit provision in
their agreement,253 and for which the parties freedom is not subject to any geographical
requirements or substantive limitations. The accompanying comments state that the rule of
Subsection 1is not a rule of choice of law.254 Choice of law is the term the Restatement uses
for issues that, in the words of Subsection 2 of Section 187, the parties could not have resolved
by an explicit provision in their agreement,255 and for which the parties choice is subject to
250. See, e.g., Albanian codif. Art. 45.3; Argentinean draft codif. Art. 2651(a); Armenian codif. Art. 1284.3
4; Belarus codif. Art. 1124.3; Georgian codif. Art. 35.2; Kazakhstan codif. Art 112.3; South Korean codif. Art.
25(3); Kyrgyzstan codif. Art. 1198 (3); La. codif. Art. 3540, cmt. e; Moldova codif. Art. 1611; Or. Rev. Stat.
15.350(3)(4) (2015); Puerto Rico Draft, art. 28; Quebec codif. Art. 3111(3); Russian codif. Art. 1210(3);
Serbian codif. Art. 136.4); Swiss codif. Art. 116(3); Tajikistan codif. Art. 1218.3; Turkish codif. Art.24(3).
251. These clauses are common in contracts between a private investor and a state entity, and are usually
designed to protect the investor from changes caused by the state entity. For the validity of such clauses
under English law, see L. Collins etal., Dicey, Morris & Collins on the Conflict of Laws 180305 (15th ed.
2012). The most drastic of stabilization clauses, called freezing clauses, provide that any change in the
laws of the host country adopted after the date of the contract will not affect it. A less drastic version,
known as economic equilibrium clauses, provide that subsequent changes in the law apply to the contract
but the host government must usually indemnify the investor for the cost of complying with the newlaw.
252. See id. at 180709.
254. Id. cmt.c.
386
geographical requirements and substantive limitations spelled out in that subsection. However,
nothing prevents the parties from incorporating by reference (e.g., by cutting and pasting or
words to that effect) the rules of State X for issues that the parties could not have resolved by
agreement, as long as such incorporation meets the geographical requirements and substantive
limitations of Subsection 2.In such a case, the incorporated provisions will apply in a future
dispute, even if in the meantime State X has amended them, as long as their application satisfies
the substantive limitations of Subsection2.
C. Multiple or PartialChoice
It is accepted now that the parties may choose the law of more than one state to govern different parts or issues of the contract. For example, in a contract calling for performance in more
than one state, the parties may subject questions of performance to the laws of the states of the
respective performances. Similarly, the parties may choose a law to govern only part of their
contract. In that case, the otherwise applicable, objectively chosen law will govern the rest of
the contract. This partial choice of law, as well as the choice of more than one law, may result
in dpeage.
The Rome Convention was the first instrument to recognize this possibility expressly when
it provided that the parties can select the law applicable to the whole or to part only of the
contract.256 Since then, other international instruments have followed, such as the Mexico City
Convention, the Hague Sales Convention,257 and the Hague Contracts Principles, the last of
which provides expressly for the choice of different laws for different parts of the contract.258
Apartial or multiple choice of law is now recognized by the Restatement (Second), by the 27
EU countries that are bound by Rome I, and more than 20 codifications in countries outside
theEU.259
D. Choice ofan InvalidatingLaw

Sometimes the chosen law invalidates either (1)the whole contract, or (2)a part of the contract. The first situation presents a clash between two general policies:the policy of giving effect
to the parties intent to have a binding contract, and the general policy of contract validation.
In some countries, particularly in Europe, the conflict is resolved by applying the chosen law,
even if it invalidates the contract.260 The rationale is that grounds for invalidity often protect
256. Rome Convention, art. 3(1). Rome I, art. 3(1) reproduces this provision without change.
257. See Mexico City Convention, art. 7; Hague Sales Convention, art.7(1).
258. Hague Contracts Principles art.2.2.
259. See Restatement (Second), 187cmt. i, as revised in 1988; Albanian codif. Art. 45.1; Argentine draft
codif. Art. 2651; Armenian codif. Art. 1284(2); Azerbaijan codif. Art. 24.1; Belarus codif. Art. 1124(4);
FYROM codif. Art. 15(3); Kazakhstan codif. Art. 112.3; South Korean codif. Art. 25(2); Kyrgyzstan codif.
Art. 1198 (2); La. codif. Art. 3540, cmt. e; Moldova codif. Art. 1611; Or. Rev. Stat. 15.350(1) (2015) ;
Puerto Rico Draft, Art. 28; Quebec codif. Art. 3111(3); Russian codif. Art. 1210(4); Tajikistan codif. Art.
1218.3; Turkish codif. Art. 24(2); Ukrainian codif. Art. 5.3; Uruguayan Draft, Art.48.3; Uzbekistan codif.
Art. 1189.2.
Contracts
387
one of the parties and he, who chooses a law, chooses its protection.261 Invalidity of the contract effectuates the parties choice and serves to uphold party autonomy.
However, assuming that the parties bargained deliberately and in good faith, this result
hardly comports with the parties intention to create a contract and their expectation that it will
be valid. For this reason, the Restatement (Second) suggests that the choice of an invalidating
law be treated as a mutual mistake and therefore disregarded because the application of the
chosen law would defeat the expectations of the parties which it is the purpose of [187] to
protect.262 The contract is then governed by law objectively chosen, for example through the
factors of Section 188. In a similar vein, the Quebec codification provides that, if the chosen
law invalidates the contract, the court must apply the law of the country with which the contract is most closely connected.263
A search of the case law reveals some old cases in which the court applied the contractually
chosen law to invalidate the whole contract. However, in virtually all of these cases, the chosen
law would have been applicable even in the absence of the choice-of-law clause and that law
favored the weak party at the expense of the drafter of the clause.264
When the law chosen by the parties invalidates only a part of the contract, such as a noncompete covenant, the parties general expectation of having a binding contract is satisfied.
Consequently, in the absence of special circumstances, there is little reason to allow one party
to pick the favorable and discard the unfavorable provisions of the chosen law. The Restatement
(Second) seems to recognize the difference between the two situations because it speaks only
of situations in which the chosen law invalidates the contract265 rather than part thereof.266
Most American cases have taken the position asserted here, namely, they uphold an otherwise
valid choice-of-law clause when it chooses a law that invalidates only a part of the contract.267
261. G. Kegel & K. Schurig, Internationales Privatrecht 657 (9th ed.2004).

262. Restatement (Second) 187, cmt. e and Reporters Note (1971).
263. Quebec codif. Art.3112.
264. See Moyer v.Citicorp Homeowners, Inc., 799 F.2d 1445 (11th Cir.1986), rehg denied 804 F.2d 681
(11th Cir. 1986); S.E.C.v.Elmas Trad-ing Corp., 683 F.Supp.743 (D. Nev.1987), affirmed without op.,
865 F.2d 265 (9th Cir.1988); George Foreman Assoc., Ltd. v.Foreman, 389 F.Supp.1308 (N.D. Cal. 1974),
affirmed 517 F.2d 354 (9th Cir.1975); Pisacane v.Italia Societa Per Azioni Di Navigazione, 219 F.Supp.424
(S.D.N.Y. 1963); Atlas Subsidiaries, Inc. v.O & O, Inc., 166 So. 2d 458 (Fla. Dist. Ct. App.1964); Fairfield
Lease Corp. v.Pratt, 278 A.2d 154 (Conn. Cir. Ct.1971).
265. Restatement (Second) 187, cmt.e.
266. However, the Reporters Note cites cases in which the chosen law invalidates the contract or a provision thereof. See id. ReportersNote.
267. See, e.g., Boatland, Inc. v. Brunswick Corp., 558 F.2d 818 (6th Cir. 1977) (invalidating under the
chosen law a clause dealing with the termination of a dealership agreement); Stoot v.Fluor Drilling Servs.,
Inc., 851 F.2d 1514 (5th Cir. 1988)(accord); Hardy v.Monsanto Enviro-Chem Sys., Inc., 323 N.W.2d 270
(Mich. 1982)(applying the chosen law to invalidate an indemnity clause); Ocon v.Thermoforming Sys.,
2013 IL App (1st) 121670-U (Ill. App. Ct. June 10, 2013)(accord); General Elec. Credit Corp. v.Beyerlein,
286 N.Y.S.2d 351 (N.Y. Sup.1967), aff d, 292 N.Y.S.2d 32 (A.D. 4th Dept. 1968)(applying the chosen law
to invalidate a clause that cut off defenses against an assignee); General Electric Credit Corp. v.Beyerlein,
55 Misc. 2d 724, 286 N.Y.S.2d 351 (N.Y. Sup. Ct. 1967), aff d 292 N.Y.S.2d 32 (N.Y. App. Div. 1968)(invalidating under chosen law a clause relieving assignee from responsibility for lessors obligations). But see
Kipin Indus. v.Van Deilen Intl, Inc., 182 F.3d 490 (6th Cir. 1999)(disregarding the chosen law to the
388
One recent example is CSLakeview at Gwinnett, Inc. v.Simon Property Group, Inc.,268 in which
the Supreme Court of Georgia upheld a Delaware choice-of-law clause, even though Delaware
law invalidated part of the contract. The contract was a complex settlement agreement between
Georgia and Delaware parties dissolving a joint venture and dividing its assets. One of the
assets was a Georgia immovable, for which the agreement granted the Georgia party a right
of first refusal. The first-refusal clause was invalid under Delawares rule against perpetuities,
although it would be valid under Georgia law. In the ensuing litigation, the Georgia party
sought to reform the choice-of-law clause, arguing that the clause was the result of a mutual
mistake. The court denied relief. The court noted that the equitable power to relieve mistakes
must be exercised with caution, and that the evidence regarding the mistake must be clear,
unequivocal, and decisive [in] show[ing] that the alleged mistake resulted in a contract
which fails to express accurately the intention of the parties.269 This was not the case here, the
court observed, because the chosen law invalidated only one clause in the contract:
It is not possible to conclude that the parties clearly and unequivocally intended the choice-of-
law provision to fall whenever it would invalidate any provision of the contract. To assume that
the parties intended for the right of first refusal to be effective instead of their choice of law is not
any more justifiable than the converse assumption.270
V. THE SCOPE OFTHE CHOICE-OF-LAWCLAUSE

A.Introduction
The scope of a choice-of-law clause depends on (1)contractual power, and (2)contractual will.
The legal system defines the parameters of the first, and then allows the parties to use all or part
of their power within those parameters.
The parameters vary from one legal system to the next, depending on the answers to two
basic questions:(1)for which contracts and issues the parties may choose the applicable law,
and (2) what may the parties choose. For example, some systems exempt from the scope of
party autonomy certain contracts, such as those conveying real rights in immovable property, consumer contracts, or employment contracts.271 Other systems allow a choice of law for
the latter two contracts, but protect the consumer or employee from the consequences of an
adverse choice.272 Many systems exempt certain contractual issues, such as capacity or consent,
from the scope of a choice-of-law clause or impose certain limitations on the choice,273 and, as
extent it invalidated a part of the contract); Infomax Office Sys. v.MBO Binder & Co., 976 F.Supp.1247
(S.D. Iowa 1997)(accord).
268. 659 S.E.2d 359 (Ga.2008).
270. Id. Moreover, the court noted, to reform the contract and subject it to Georgia law could have
its own undesirable implications for the multiple entities and properties involved in the settlement
agreement.Id.
271. See supra 368; infra 41011.
272. See infra 41114.
273. See supra 38082.
Contracts
Exempted
contracts
389
Exempted
contractual
issues
The scope of
party autonomy
Non
contractual
issues
Non-State
norms
Conflicts law
Procedural law
Figure4. The Parameters of Party Autonomy.

we shall see below, most systems do not allow a pre-dispute choice for noncontractual issues,
such as torts. With regard to non-exempted contracts and issues, most systems prohibit the
choice of another states procedural law (despite disagreements in drawing the line between
substance and procedure) or the choice of nonstate norms. Finally, all systems agree that, ordinarily, a choice-of-law clause does not encompass the chosen states conflicts law. Figure 4,
above, attempts to depict these variations, discussedbelow.
B. Exempted Contracts
or ContractualIssues
Unlike other systems, which exempt certain contracts or contractual issues from the scope of
party autonomy, the Restatement (Second) does not impose any such a priori exemptions.274
Instead, the Restatement relies on courts to police party autonomy on a case-by-case basis,
through the geographical and substantive strictures of Section 187(2), especially the public policy limitation. At the end of this chapter, we will examine how American courts discharge this
task in cases involving consumer, employment, or franchise contracts.275
Although the Restatement does not exempt any contractual issues from the scope of party
autonomy, the parties may do so by phrasing the choice-of-law clause narrowly. As noted earlier, the Restatement allows the parties to choose a law for only part of the contract.276 Many
parties do so, but not necessarily intentionally. Sometimes, they inadvertently use words that
274. The only possible exception involves the issue of formation of consent to the choice-of-law agreement, which the Restatement (Second) assigns to the lex fori. See supra 382.
275. See infra 41432.
276. See Restatement (Second), 187 cmt. i, as revised in 1988, supra note 259. The parties may also
choose different laws for different parts of the contract. Seeid.
390
narrow the scope of the choice-of-law clause to only certain contractual issues, and some
courts take these words literally. For example, several courts have held that a clause providing that the contract shall be interpreted and construed under the law of the chosen state
does not encompass issues of contract validity and enforcement.277 One such case was General
Motors Corp. v. Northrop Corp.,278 which involved an elaborate multimillion-dollar contract
between two large corporations for the construction of components of stealth military aircraft.
The choice-of-law clause was less than elaborate. It provided that the contract was to be construed and interpreted according to California law. Thus, the clause used two partly overlapping verbs and left out a more important verbgoverned. The court held that this omission
meant that the clause did not cover the issues actually involved in the case, which were issues
of validity and breach. The terms construction and interpretation refer to the process of
ascertaining the meaning of written documents, said the court, but the parties claims do not
require an ascertainment of the meaning of the contracts language.279 The court rejected a
plea to read the clause more broadly, noting that [c]ourts do not have the power to insert
language into a contract which was not inserted by the parties.280 Similarly, in Heating & Air
Specialists, Inc. v. Jones,281 the court held that a clause providing that Texas law shall govern
[the contracts] interpretation282 was confined to Texass rules of contract construction and did
not displace any other rules of the otherwise applicable Arkansas law.283
By contrast, in Boatland, Inc. v. Brunswick Corp.,284 and Kipin Industries v. Van Deilen
International, Inc.,285 the court rejected this literal reading of the clause. The court concluded
that to focus on the technical distinction between interpret/construe and govern would
yield an unwarranted, strained and narrow construction of the [contract] language.286
277. See, e.g., Am.s Favorite Chicken Co. v. Cajun Enters., Inc., 130 F.3d 180 (5th Cir. 1997); Caton
v.Leach Corp., 896 F.2d 939 (5th Cir.1990); Shapiro v.Barnea, 2006 WL 3780647 (D.N.J. Dec. 21, 2006);
Proctor v.Mavis, 125P.3d 801 (Or. Ct. App.2005), rev. den., 136P.3d 742 (Or. 2006); Boat Town U.S.A.,
Inc. v.Mercury Marine Div. of Brunswick Corp., 364 So. 2d 15, 17 (Fla. Dist. Ct. App.1978); AAA Delivery,
Inc. v.Airborne Freight Corp., 646 So. 2d 1113 (La. Ct. App.1994).
278.685 N.E.2d 127 (Ind. Ct. App. 1997), transfer denied 698 N.E.2d 1187 (Ind. 1998), appeal after
remand, 807 N.E.2d 70 (Ind. Ct. App.2004), transfer denied, 822 N.E.2d 976 (Ind.2004).
279. 685 N.E.2d at 13435.
280. Id. at135.
281. 180 F.3d 923 (8th Cir.1999).
282. Id. at930.
283.In Baldor Elec. Co. v.Sungard Recovery Services., LP, 2006 WL 3735980 (W.D. Ark. Dec. 15, 2006),
the court held that a clause providing that the agreement shall be governed by the substantive law of
Pennsylvania did not encompass a claim for recision of the contract based on inducement by misrepresentation. In Sims v.New Falls Corp., 37 So. 3d 358 (Fla. Dist. Ct. App.2010) rehg denied (July 7, 2010),
rev den, 2010 WL 4685414 (Fla. Nov. 16, 2010), a Florida court held that a clause in a mortgage deed providing that this deed shall be governed by Georgia law did not apply to the promissory note secured by
the mortgage deed, although the two documents were signed simultaneously. The court held that under
Floridas lex loci contractus rule, the note was governed by the law of Florida, rather than Georgia, where
the mortgaged property was situated
284. 558 F.2d 818, 82122 (6th Cir.1977)
285. 182 F.3d 490 (6th Cir.1999).
286. Boatland, 558 F.2d at 82122, Kipin, 182 F.3d at494.
Contracts
391
C. Noncontractual Issues: Torts

1.Introduction
A more frequently occurring question is whether a choice-of-law clause may, or does, encompass noncontractual issues arising from, or connected to, the same contractual relationship that
is the object of the clause. Examples include quasi-contractual claims such as unjust enrichment, tort claims, unfair trade practices, statutes of limitation, attorney fees, and prejudgment
interest. This section focuses on tort claims.
This question may arise in two different scenarios: post-dispute and pre-dispute agreements. The first, and not so common, scenario is when the tortfeasor and the victim, after each
had knowledge of the events giving rise to the dispute, agree on the law that will govern the
dispute. Such post-dispute agreements present no problems whatsoever. After all, they differ
little from agreements encompassing only contractual claims, and indeed they help facilitate
settlement. Acommon variation of this scenario is when neither litigant raises the applicability
of foreign law. In such a case, most American courts will apply the law of the forum under a
variety of rationales, one of which is that the parties have tacitly acquiesced (i.e., agreed) to the
application of the lex fori.287 Although express post-dispute agreements to apply non-forum law
are slightly different, the need for predictability, efficiency, judicial economy, and respect for
party autonomy are good reasons to enforce, indeed, encourage, these agreements.
The second (and increasingly more common) scenario involves pre-dispute agreements in
which the eventual tortfeasor and the victim agree in advance on the law that will govern the
obligations and rights arising from the tort. This scenario can occur when: (1) the eventual
tortfeasor and the victim are parties to a contract, such as a contract of employment, carriage,
or sale; and (2)the contract contains a choice-of-law clause phrased in a way that purports to
include not only contractual claims, but also noncontractual claims that may arise from the
parties relationship. If both of the foregoing elements are satisfied, then the next question is
whether the legal system should enforce the clause.
Obviously, the parties positions in pre-dispute agreements are qualitatively and significantly different from those in post-dispute agreements. Before the dispute arises, the parties
usually do not contemplate a future tort, and they do not know:(1)who will injure whom, or
(2)the nature or severity of the injury. An unsophisticated party (or a party in a weak bargaining position) may sign a choice-of-law agreement uncritically or unwittingly, even when the
odds of that party becoming the victim are much higher than the odds of becoming the tortfeasor. Thus, pre-dispute agreements may facilitate the exploitation of weak parties. In contrast,
this danger is less pronounced in post-dispute agreements because, after the dispute arises, the
parties are in a better position to know their rights and obligations, and have the opportunity
to weigh the pros and cons of a choice-of-law agreement. The discussion below focuses on pre-
dispute agreements.
Logically, one should separate the question of contractual power from contractual will. In
other words, one should first ask whether the legal system grants contracting parties the power
to choose in advance a law to govern a future tort between them. If yes, then the next question is whether in fact the parties have exercised that power. One should not lightly assume an
affirmative answer to the first question, if only because the principle of party autonomy was
392
born and nurtured exclusively in the area of contract law. Nevertheless, as we shall see later,
American courts have assumed an affirmative answer to the first question and deal only with
the second question by examining the wording of the choice-of-law clause.
The Restatement (Second) speaks of the law of the state chosen by the parties to govern
their contractual rights and duties.288 Although the Restatement is silent on whether the parties may agree in advance on the law that will govern their noncontractual rights and duties,
the most logical inference is that the Restatement does not sanction such agreements. At the
time of the Restatements drafting, the principle of party autonomy, which had been born in the
contracts arena, had not migrated beyond thatarena.
The 1991 Louisiana codification explicitly confines pre-dispute choice-of-law agreements to
contractual issues.289 Oregons contracts codification of 2001 also does not allow pre-dispute choice-
of-law agreements for noncontractual issues.290 The torts codification of 2009 continues this policy,
but also expressly addresses post-dispute agreements for noncontractual issues and differentiates
between agreements choosing Oregon law and those choosing the law of another state. Post-dispute
agreements choosing Oregon law are enforceable without any limitation, if otherwise valid.291 Post-
dispute agreements choosing the law of another state are enforceable, provided they conform to the
statute that prescribes the requirements for enforcing choice-of-law agreements regarding contractual claims, including the public policy limitations of the otherwise applicable law.292
In the rest of the world, the prevailing practice has been to enforce only post-dispute
agreements. Some codifications continue expressly to provide to that effect,293 other codifications limit such agreements to the law of the forum,294 and the rest are silent on this question.295 Arecent innovation, Article 14 of the Rome II Regulation, continues the differentiation
288. Restatement (Second) 187(2) (emphasis added).

289. See La. Civ. Code Art. 3540 (2015) (conventional obligations), and Reporters comments thereunder.
290. See Or. Rev. Stat. 15.350 (2015) (contractual rights and duties). For discussion, see S. Symeonides,
Codifying Choice of Law for Contracts:The Oregon Experience, 67 RabelsZ 726, 737 (2003).
291. See Or. Rev. Stat. 15.430(2) (2015). For discussion, see Symeonides, Oregon Torts Exegesis 99397.
292. See Or. Rev. Stat. 15.455 (2015), cross-referencing to Or. Rev. Stat. 15.300 to 15.380 and thereby
incorporating the proviso that the contractually chosen law may not contravene an established fundamental policy embodied in the law that would otherwise govern the issue in dispute in the absence of
such agreement. Id. 15.355(1)(c).
293. See Belgian codif. Art. 101 (Parties may, after the dispute has arisen, choose which law will be
applicable to the obligations resulting from the tort .); Chinese codif. Art. 47 (The parties may agree
to choose the applicable law after the occurrence of a tortious act.); German codif. Art. 42 (After the
event giving rise to a non-contractual obligation has occurred, the parties may choose the law that shall
apply to the obligation.); Turkish codif. Art. 34(5) (The parties may explicitly choose the applicable law
after the tort occurs.); Bulgarian codif. Art. 113(1); Japanese codif. Art. 21; FYROM codif. Art.33(3).
294. See Estonian codif. Art. 54 (The parties may agree on application of Estonian law after occurrence of
the event or performance of the act from which a noncontractual obligation arose.); Swiss codif. Art. 132
(The parties may, at any time after the occurrence of the injurious event, agree on the application of the
law of the forum.); South Korean codif. Art. 33; Lithuanian codif. Art. 1.43.3; Russian codif. Art. 1219.3;
Taiwanese codif. Art. 31; Tajikistan codif. Art. 1225.3; Tunisian codif. Art. 71; Ukrainian codif. Art.49.4.
295. The codifications of Armenia (Art. 1280), Austria (Art. 48(1)), Belarus (Art. 1093(2)), Kyrgyzstan
(Art. 1167(2)), and the Dutch Torts Act of 2001 ( 6)authorize such agreements, but without any express
limitation as to their timing and without limiting them to the law of theforum.
Contracts
393
between pre-dispute and post-dispute choice-of-law agreements for noncontractual claims and
allows enforcement of both, but subject to different restrictions.296 Post-dispute agreements are
enforced regardless of the identity of the parties,297 but pre-dispute agreements are enforced
only if:(1)the parties are pursuing a commercial activity,298 (2)the agreement is freely negotiated,299 and (3)the choice of law is expressed or demonstrated with reasonable certainty by
the circumstances of the case.300 Thus, the most crucial difference between pre-dispute and
post-dispute agreements is that pre-dispute agreements are enforceable only if the parties are
engaging in commercial activity.301 This requirement protects consumers and employees, but
not small commercial actors such as franchisees.302
2.The CaseLaw
American courts do not seem to doubt the parties power to choose in advance a law that
will govern a future tort between them, as long as their intention to that effect appears clearly
from the language of the choice-of-law clause. This author has not been able to locate a case in
which the court squarely held that such agreements are beyond the parties contractual power.
To the contrary, courts assume the existence of this power and then try to ascertain whether
the parties have exercised it by examining the wording of the clause. Indeed, as with any other
question of interpretation, the wording of the clause is important, but whether it should always
be controlling is another matter.303 In any event, in the vast majority of cases, courts have found
296. Article 14 applies to all noncontractual claims other than those arising from unfair competition,
restrictions to competition, and infringement of intellectual property rights. See Rome II, arts. 6(4) and
8(3). These exclusions mean that choice-of-law agreements on these two subjects are unenforceable,
regardless of whether they are entered into before or after the dispute. For discussions of Article 14, see
T.M. de Boer, Party Autonomy and Its Limitations in the Rome II Regulation, 9 Ybk. Priv. Intl L. 19
(2008); M. Zhang, Party Autonomy in Non-Contractual Obligations:Rome II and Its Impacts on Choice
of Law, 39 Seton Hall L.Rev. 861 (2009).
297. Rome II, art. 14(1)(a).
298. Rome II, art. 14(1)(b).
299. Id. The requirement for free negotiation should be understood as being applicable even to post-
dispute agreements. Despite a possible a contrario argument, the quoted phrase should be understood as
evidence of the drafters intent to ensure higher judicial scrutiny of pre-dispute agreements, rather than
as a license to enforce coercive or not freely negotiated post-dispute agreements.
300. Id. Another requirement is that the agreement shall not prejudice the rights of third parties. Id.
Article 57 of the Albanian codification and Article 158 of the Serbian draft codification are virtually
identical to Rome II, art.14.
301. In all other respects, the two agreements are subject to the same restrictions, which are delineated
by (1)the mandatory rules of a state in which all the elements relevant to the situation are located
in fully-domestic cases (Rome II art. 14(2) (emphasis added); (2)the mandatory rules of Community law,
in multistate intra-EU cases (see id. Art. 14(3)); and (3)the overriding mandatory rules and the ordre
public of the forum state in all cases. (See id. Arts. 16,26).
302. For a critique on this issue, see S. Symeonides, Rome II and Tort Conflicts:AMissed Opportunity,
56 Am. J.Com. L. 173, 21516 (2008).
303. Courts rarely address the question of which law governs this interpretation. Most courts apply general principles of contract interpretation, without reference to any particular law, while a few court refer
to the chosenlaw.
394
that the wording of the clause was not broad and clear enough to encompass noncontractual
claims.304 The following cases are illustrative.
304. In addition to the cases discussed in the text, the following cases held that the choice-of-law clause
was not broad enough to encompass tort claims:Williams v.Deutsche Bank Secs., Inc., 2005 WL 1414435
at *5 (S.D.N.Y. June 13,2005) (language providing that the Agreement itself will be governed by, and construed in accordance with, a particular states laws have regularly been construed in this circuit as applying only to disputes concerning the agreement itself and its interpretation, and not to all disputes arising
from the parties relationship); Tissue Transplant Technology, Ltd v. Osteotech, Inc., 2005 WL 958407
at *3 (W.D. Tex. Apr. 26, 2005) (finding that clause providing that [t]his Agreement shall be construed
in accordance with the laws of the State of New Jersey was not broad enough to encompass causes of
action such as fraud.); Schuller v. Great-West Life & Annuity Ins. Co., 2005 WL 2259993 at *13 (N.D.
Iowa Sept. 15, 2005)(holding that clause providing that [t]his policy is subject to the laws of the State
of Illinois is not broad enough to govern the choice of law for [plaintiff s] tort claims.); Motmanco,
Inc. v.McDonalds Corp., 2005 WL 1027261 (M.D. Fla. Mar. 30,2005) (concluding that clause providing
that [t]he terms and provisions of this Franchise shall be interpreted in accordance with and governed by
the laws of the State of Illinois, did not encompass tort claims); Black Box Corp. v.Markham, 127 Fed.
Appx. 22, 25 (3d Cir. 2005)(finding that clause providing that [t]his agreement will be governed by, and
construed and enforced in accordance with, the laws of [Pennsylvania] (emphasis added) is narrowly
drafted to encompass only the agreement itself, and not necessarily the entire relationship); Scotia
Prince Cruises Ltd. v.Pricewaterhousecoopers, 2005 WL 2708311 (Me. Super. Mar. 25, 2005)(clause providing that the agreement shall be governed by and construed in accordance with the laws of Bermuda
did not encompass tort claims); Computer Sales Intl., Inc. v.Lycos, Inc., 2005 WL 3307507 at *2 (D. Mass.
Dec. 6, 2005)(clause providing that the Sales Agreement, including all matters of construction, validity,
performance and enforcement, shall be governed by Missouri law did not encompass buyers counterclaims for fraudulent or negligent misrepresentation in the inducement of the agreement:where a claim
concerns the validity of the formation of the contract, it cannot be categorized as one involving the rights
or obligations under the contract, and therefore is not subject to the contracts choice-of-law provision.);
U.S. Fidelity & Guar. Co. v. S.B. Phillips Co., Inc., 359 F. Supp. 2d 189 (D. Conn. 2005) (clause providing that an indemnity agreement between insurer and insured was to be governed by and construed in
accordance with Connecticut law did not require application of Connecticut law to tort claims arising
out of contract-related transactions); Nuzzi v. Aupaircare, Inc., No. 08-1210, 2009 WL 2460778 (3d Cir.
Aug. 12, 2009)(holding that California choice-of-law clause did not encompass claims under New Jerseys
anti-discrimination and family leave statutes); MBI Acquisition Partners, L.P.v.Chronicle Pubg Co., 2001
WL 148812 (W.D. Wis. 2001)(clause stating that the contract was to be governed by California law did
not encompass tort claims for fraudulent securities practices); Florida Evergreen Foliage v.E.I. DuPont De
Nemours & Co., 135 F.Supp.2d 1271 (S.D. Fla. 2001)(a clause stating that the contract shall be construed
under and in accordance with the laws of a particular state did not automatically encompass tort claims,
because it did not contain language such as any and all claims arising out of the relationship of the parties); Thomas v.Fidelity Brokerage Servs., Inc. 977 F.Supp.791 (W.D. La. 1998)(characterizing a breach
of fiduciary duty as a noncontractual issue and holding that, as such, the issue did not fall within the scope
of a choice-of-law clause that encompassed only issues of contract interpretation and enforcement); T-Bill
Option Club v.Brown & Co. Secs. Corp., 23 F.3d 410 (Table), 1994 WL 201104 at *3 (7th Cir. 1994)(holding that Illinois law applied to plaintiff s claims of breach of fiduciary duty, despite a contractual choice of
Massachusetts law, because the choice-of-law clause in the agreement covered only claims concerning that
agreement, not all other claims arising between the two parties.); Politte v.McDonalds Corp., 16 F.3d 417
(Table), 1994 U.S. App. Lexis 1506 at *3 (10th Cir. Jan. 10, 1994)(holding that the choice-of-law clauses contained in a lease and franchise agreement did not apply to non-contract claims such as promissory estoppel
and negligence.). See also Drenis v.Haligiannis, 452 F.Supp.2d 418 (S.D.N.Y. 2006)(fraudulent conveyance); E*Trade Fin. Corp. v.Deutsche Bank AG, 420 F.Supp.2d 273 (S.D.N.Y. 2006), clarification denied,
2006 WL 2927613 (S.D.N.Y. Oct. 12, 2006)(fraud and negligent misrepresentation); United Vaccines, Inc.
v.Diamond Animal Health, Inc., 409 F.Supp.2d 1083 (W.D. Wis. 2006)(negligent and intentional misrepresentation); Hughes v.LaSalle Bank, N.A., 419 F.Supp.2d 605 (S.D.N.Y. 2006), reconsideration denied,
Contracts
395
In Jiffy Lube International, Inc. v.Jiffy Lube of Pennsylvania,305 the court held that a clause
providing that this agreement shall be construed, interpreted and enforced306 in accordance
with Maryland law did not encompass the plaintiff s tort claims. The court reasoned:
Contractual choice of law provisions do not govern tort claims between contracting parties
unless the fair import of the provision embraces all aspects of the legal relationship. Acareful
reading of the choice-of-law provision at issue here demonstrates its restricted scope. The provision is limited on its face to this agreement [and thus] only governs the construction, interpretation and enforcement of the Agreement. [The plaintiff s] various tort claims of fraud and
misrepresentation require a separate choice of law analysis.307
In Inacom Corp. v. Sears, Roebuck and Co.,308 the clause provided that the Agreement
shall be governed by and construed309 in accordance with the law of Illinois. The question
was whether this clause encompassed claims for fraudulent concealment and fraudulent misrepresentation surrounding the formation of the contract. The court answered the question
by holding that the clause was not broad enough to encompass the fraudulent concealment
claim, which sounds in tort.310 The court reasoned that, although this claim arose out of the
2006 WL 1982983 (S.D.N.Y. July 14, 2006)(fraud and unjust enrichment); Dessert Beauty, Inc. v.Platinum
Funding Corp., 2006 WL 3780902 (S.D.N.Y. Dec. 26, 2006) (fraudulent inducement); VFD Consulting,
Inc. v. 21st Servs., 425 F. Supp. 2d 1037 (N.D. Cal. 2006) (fraud and misappropriation of trade secrets);
Amakua Dev., LLC v.Warner, 411 F.Supp.2d 941 (N.D. Ill. 2006)(fraud); Hawk Enters., Inc. v.Cash Am.
Intern., Inc., 282P.3d 786 (Okla. Civ. App.2012), cert. denied (June 25, 2012); Cagle v.The James Street
Group, 2010 WL 4250008 (10th Cir. Oct. 28, 2010); Sedona Corp. v. Ladenburg Thalmann & Co., Inc.,
2005 WL 1902780 (S.D.N.Y. Aug. 9, 2005); Eby v.Thompson, 2005 WL 1653988 (Del. Super. Ct. Apr. 20,
2005); Travelers Indem. Co. of Illinois v. Wolverine (Mass.) Corp., 2005 WL 3334319 (D. Mass. Dec. 8,
2005); Frazer Exton Development LP, v. Kemper Envtl., Ltd., 200 WL 1752580 (S.D.N.Y. July 29, 2004);
Benefit Concepts NewYork, Inc. v.New England Life Ins. Co., 2004 WL 1737452 (D. Conn. July 30, 2004);
Ivanhoe Fin., Inc. v.Highland Banc Corp, 2004 WL 546934 (N.D. Ill. Feb. 26, 2004); Benchmark Elecs.,
Inc. v.J.M. Huber Corp., 343 F.3d 719 (5th Cir.2003); Green Leaf Nursery v.E.I. DuPont De Nemours &
Co., 341 F.3d 1292 (11th Cir.2003); Fin. Trust Co. Inc. v.Citibank, N.A., 268 F.Supp.2d 561 (D.V.I. June
19, 2003); Gloucester Holding Corp. v.U.S. Tape and Sticky Products, LLC, 832 A.2d 116 (Del. Ch. 2003);
Owen J.Roberts School Dist. v.HTE, Inc., 2003 WL 735098 (E.D. Pa. Feb 28, 2003); Govett Am. Endeavor
Fund, Ltd. v. Trueger, 112 F.3d 1017 (9th Cir. 1997); Am.s Favorite Chicken Co. v. Cajun Enters., Inc.,
130 F.3d 180 (5th Cir. 1997); NMP Corp. v.Parametric Tech. Corp., 958 F.Supp.1536 (N.D. Okla. 1997);
Thera-Kinetics, Inc. v.Managed Home Recovery, Inc., 1997 WL 610305 (N.D. Ill. Sept. 29, 1997); Sunbelt
Veterinary Supply, Inc. v. Intl Bus. Sys. U.S., Inc., 985 F. Supp. 1352 (M.D. Ala. 1997); Tucker v. Scott,
1997 WL 151509 (S.D.N.Y. Apr. 1, 1997); Krock v.Lipsay, 97 F.3d 640 (2d Cir. 1996); Valley Juice Ltd., Inc.
v.Evian Waters of France, Inc., 87 F.3d 604 (2d Cir. 1996); Precision Screen Machs., Inc. v.Elexon, Inc.,
1996 WL 495564 (N.D. Ill. 1996); Shelley v.Trafalgar House Public Ltd. Co., 918 F.Supp.515 (D.P.R. 1996);
Telemedia Partners Worldwide, Ltd. v.Hamelin Ltd., 1996 WL 41818 (S.D.N.Y. 1996); Champlain Enters.,
Inc. v.United States, 945 F.Supp.468 (N.D.N.Y. 1996); Young v.W.S. Badcock Corp., 474 S.E.2d 87 (Ga.
App.1996); CPS Intl, Inc. v.Dresser Indus., Inc., 911 S.W.2d 18 (Tex. App.1995).
305. 848 F.Supp.569 (E.D. Pa.1994).
306. Id. at576.
307. Id.
308. 254 F.3d 683 (8th Cir.2001).
309. Id. at687.
310. Id.
396
circumstances surrounding the formation of the contract, there was no indication that the parties intended the chosen law to apply to every contract-related claim [or] the entirety of
the parties relationship.311 Unlike other clauses that provide that the chosen law will govern,
construe, and enforce all rights and duties of the parties arising from or relating in any way to
the subject of the contract,312 said the court, the present clause simply indicated that the
chosen law was to govern and construe the contract.313
In Union Oil Company of California v.John Brown E & C,314 a contract for the design and
construction of an Illinois polymer plant provided that the contract should be construed, interpreted, and enforced in accordance with California law.315 The court rejected the plaintiff s
claim that the quoted clause encompassed tort claims arising from that contract because neither this clause nor any other contract provision suggest[ed] that the parties also intended tort
or other non-contractual claims to be governed by California law.316 The court then employed
a tort choice-of-law analysis to plaintiff s tort claim and held that Illinois law governed.
In Medical Instrument Development Laboratories v. Alcon Laboratories,317 the clause provided that the Agreement is to be performed in accordance with the laws of the State of Texas
and shall be construed and enforced with [sic] the laws of the State of Texas.318 The court ruled
that, [w]hile this statement establishes that Texas law will govern interpretation and construction of the contract, the narrowly-worded choice of law provision does not explicitly control
non-contractual claims.319
In Baxter v.Fairfield Financial Services, Inc.,320 a Georgia court held that a clause providing
that [t]his Guaranty shall be governed by the laws of Florida321 did not encompass a guarantors tort counterclaims in an action by a bank to collect a balance due on the underlying
promissory notes. Noting that the clause only applied to [t]his Guaranty,322 rather than to all
aspects of the relationship it created, the court reasoned that the banks alleged misrepresentations giving rise to the guarantors tort counterclaims and defenses sounded in tort, and thus
they fell outside the scope of the clause. The court held that the law of Georgia governed the
counterclaims, as the misrepresentations occurred in Georgia.
In Stagecoach Transportation, Inc. v.Shadow, Inc.,323 the choice-of-law clause provided that
[the] agreement shall be governed and interpreted324 in accordance with NewYork law. The
311. Id.
312. Id.
313. Id. at688.
314. 1994 WL 535108 (N.D. Ill. Sept. 30,1994).
315. Id.at*1.
316. Id.
317. 2005 WL 1926673 (N.D. Cal. Aug. 10,2005).
318. Id.at*3.
319. Id.
320. 704 S.E.2d 423 (Ga. Ct. App.2010), reconsideration denied (Dec. 2, 2010), cert. denied (Apr. 26,2011).
321. Id. at428.
322. Id.
323. 741 N.E.2d 862 (Mass. App. Ct.2001).
324. Id. at867.
Contracts
397
court held that the clause did not encompass the plaintiff s claim for the defendants unfair and
deceptive trade practices in reneging on its promise to sign the agreement. The court stated
that such a claim did not aris[e]out of the agreement but more properly resembles a tort
action of deceit, and thus fell outside the scope of the clause, which was not sufficiently broad
so as to encompass the entire relationship of the parties.325
In a relatively small minority of cases, the courts found that the choice-of-law clause did
encompass tort claims arising from the same relationship.326 One of the first such cases was
Nedlloyd Lines B.V.v.Superior Court,327 which involved a shareholder agreement between large
sophisticated shipping companies.328 A choice-of-law clause provided that [t]his agreement
325. Id. at868.
326. In addition to the cases discussed in the text, see Turtur v.Rothschild Registry Intl, Inc., 26 F.3d
304 (2d Cir. 1994)(holding that a clause providing that the contract was to be governed by, and interpreted under New York law and that the parties consented to New York jurisdiction to resolve any
controversy or claim arising out of or relating to this contract or breach thereof, was sufficiently broad
to cover tort claims as well as contract claims arising out of or relating to the [contract]. Id. at 309
10); Hitachi Credit Am. Corp. v.Signet Bank, 166 F.3d 614 (4th Cir. 1999)(holding that a clause that
provided that Virginia law was to govern [t]his agreement and the rights and obligations of the parties
hereunder including all matters of construction, validity and performance, id. at 624, was broad
enough to encompass contract-related tort claims); Miyano Machinery USA, Inc. v. Zonar, 1994 WL
233649 (N.D. Ill. May 23,1994) (holding that a clause providing that [t]he validity, interpretation and
performance of this Agreement shall be controlled by and construed under the laws of the State of
California, id. at *2, encompassed defendants counterclaim for bad faith denial of a contract because
that claim was dependent on the contracts validity (which was expressly covered by the clause) and
because, although this was a tort claim, it was inextricably tied to contractual issues.); Twinlab Corp.
v.Paulson, 724 N.Y.S.2d 496 (N.Y. App. Div. 2001)(clause stating that the contract was to be governed
and construed according to the law of New York did not preclude a tort action based on the Florida
RICO statute); Weil v.Morgan Stanley DW, Inc., 877 A.2d 1024 (Del. Ch. 2005)(holding that the scope
of the clause was determined by the contractually chosen law of California and finding that, under that
law, the clause encompassed claim for breach of fiduciary duty in the performance of the contract);
Yavuz v.61 MM, Ltd., 576 F.3d 1166 (10th Cir. 2009)(holding that fraud and breach of fiduciary duty
claims were governed by Swiss law under both a Swiss choice-of-law clause and the forums choice-of-
law rules); About.Com, Inc. v.Targetfirst, Inc., 2002 WL 826953 (S.D.N.Y. April 30, 2002); Amakua Dev.,
LLC v.Warner, 411 F.Supp.2d 941 (N.D. Ill. 2006); Barrow v.ATCO Mfg. Co., 524 N.E.2d 1313 (Ind.
Ct. App.1988); Birnberg v. Milk Street Residential Assocs. Ltd. Pship, 2003 WL 151929 (N.D. Ill. Jan.
21, 2003); El Pollo Loco, S.A. De C.V.v.El Pollo Loco, Inc., 344 F.Supp.2d 986 (S.D. Tex. 2004); Forrest
v.Verizon Commcns, Inc., 805 A.2d 1007 (D.C. 2002); Hudson v.ConAgra Poultry Co., 484 F.3d 496
(8th Cir. 2007); Lloyd v.Loeffler, 694 F.2d 489 (7th Cir.1982); M.Block & Sons, Inc. v.Intl Bus. Machs.,
Corp., 2004 WL 1557631 (N.D. Ill. July 8, 2004); Medtronic Sofamor Danek, Inc. v.Michelson, 2004 WL
2905403 (W.D. Tenn. May 20, 2004), dismissed by Medtronic Sofamor Danek, Inc. v. GKM Trust, 122
Fed. Appx. 493 (Fed. Cir. 2005); Menlo Logistics, Inc. v.Western Exp., Inc., 2005 WL 2334358 (N.D. Cal.
Sept. 23, 2005); Nexen Inc. v.Gulf Interstate Engg Co., 224 S.W.3d 412 (Tex. App.2006); Roby v.Corp. of
Lloyds, 996 F.2d 1353 (2d Cir. 1993); Twohy v.First Natl. Bank of Chicago, 758 F.2d 1185 (7th Cir.1985);
VFD Consulting, Inc. v.21st Servs., 425 F.Supp.2d 1037 (N.D. Cal. 2006); Weil v.Morgan Stanley DW,
Inc., 877 A.2d 1024 (Del. Ch. 2005), aff d 894 A.2d 407 (Del. 2005); Wireless Distribs., Inc. v.Sprintcom,
Inc., 2003 WL 22175607 (N.D. Ill. Sept. 19, 2003); Cooper v.Meridian Yachts, Ltd., 575 F.3d 1151 (11th
Cir. 2009); Krenkel v.Kerzner Intl Hotels Ltd., 579 F.3d 1279 (11th Cir. 2009); Maxcess, Inc. v.Lucent
Techs., Inc., 433 F.3d 1337 (11th Cir.2005), rehg en banc denied, 175 Fed. Appx. 328 (11th Cir.2006).
327. 834P.2d 1148 (Cal.1992).
328.In an earlier case, Smith, Valentino & Smith, Inc. v. Superior Court, 551 P.2d 1206 (Cal. 1976),
the California Supreme Court held that a reciprocal forum-selection clause covering [a]ny actions or
398
shall be governed by and construed in accordance with Hong Kong law.329 The California
Supreme Court held that this clause was broad enough to include a claim for breach of fiduciary duty. Heavily relying on the word governed, the court reasoned as follows:
When two sophisticated, commercial entities agree to a choice-of-law clause like the one in this
case, the most reasonable interpretation of their actions is that they intended for the clause to
apply to all causes of action arising from or related to their contract. The phrase governed
by is a broad one signifying a relationship of absolute direction, control, and restraint. Thus,
the clause reflects the parties clear contemplation that the agreement is to be completely and
absolutely controlled by Hong Kong law. No exceptions are provided. Nedlloyds fiduciary
duties, if any, arise fromand can exist only because ofthe shareholders agreement .
In order to control completely the agreement of the parties, Hong Kong law must also govern
the stock purchase portion of that agreement and the legal duties created by or emanating
from the stock purchase, including any fiduciary duties. If Hong Kong law were not applied to
these duties, it would effectively control only part of the agreement, not all of it. Such an interpretation would be inconsistent with the unrestricted character of the choice-of-law clause.330
The court concluded that

[A]valid choice-of-law clause, which provides that a specified body of law governs the agreement between the parties, encompasses all causes of action arising from or related to that agreement, regardless of how they are characterized, including tortious breaches of duties emanating
from the agreement or the legal relationships it creates.331
In Olinick v. BMG Entertainment,332 the court applied this reasoning in dismissing an

employees action for age discrimination and wrongful discharge in violation of public policy. The court found that the choice-of-law clause in the employment contract was phrased in
broad enough terms333 and involved sophisticated enough parties (the employee was a lawyer)
as to encompass noncontractual claims.
In Interclaim Holdings Ltd. v. Ness, Motley, Loadholt, Richardson & Poole,334 the contract
was a retainer agreement between a South Carolina law firm and its client, a company based in
Ireland. Achoice-of-law clause provided that the agreement was to be governed and construed
proceedings under this Agreement with respect to any matters arising under or growing out of this
agreement, id. at 1210, encompassed claims for unfair competition and intentional interference with
advantageous business relationships.
329. Nedlloyd, 834P.2d at1150.
330. Id. at 115354.
331. Id. at1155.
332. 42 Cal. Rptr. 3d 268 (Cal. Ct. App.2006), review denied (Aug. 16,2006).
333. The clause provided:This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of NewYork, without regard to conflicts of laws. Olinick, 42 Cal. Rptr.
3d at272.
334. 298 F.Supp.2d 746 (N.D. Ill. 2004). For a later version of the same case amended in respects not
relevant here, see Interclaim Holdings Ltd. v. Ness, Motley, Loadholt, Richardson & Poole, 2004 WL
725287 (N.D. Ill. Apr. 1,2004).
Contracts
399
in all respects335 by the law of South Carolina. The client sued the law firm in Illinois for breach
of the agreement and breach of fiduciary duty, and obtained a $27.7 judgment in punitive damages. The law firm challenged the award of punitive damages arguing, inter alia, that the South
Carolina choice-of-law clause did not encompass tort claims and could not displace an Illinois
statute that prohibited punitive damages. The court rejected the argument. The court noted
that the law firms fraudulent acts surrounding the breach of contract were clearly dependent
on the retainer agreement, and concluded that tort claims that are dependent upon a contract
are subject to the contracts choice-of-law provision regardless of the breadth of the clause,336
which in this case was broad enough to beginwith.
3.Critique
One problem with viewing the question of the scope of the choice-of-law clause solely as a question of contractual intent (rather than of both contractual power and intent) is that it enables
the strong party in an adhesion contract to take advantage of the weak party by using words
explicit enough to encompass noncontractual issues. Sutton v.Hollywood Video Entertainment
Corp.337 exemplifies this phenomenon. Sutton was a tort action for malicious prosecution and
false imprisonment filed against a Maryland video-store owner who had the plaintiff arrested
for allegedly stealing merchandise the previous night. Besides being innocent, the plaintiff
was a customer and member of the defendants video store, in that he had applied for and
received a membership card allowing him to rent video discs. The membership agreement
provided that any dispute arising out of or relating in any way to [plaintiff s] relationship with
[defendant] shall be subject to final, nonappealable, binding arbitration. . .. Exclusive venue
for any dispute resolution shall be in Portland, Oregon and Oregon law shall control for all
purposes.338
Relying on the italicized language (which was abundantly explicit), the defendant moved to
dismiss the action. As incredible as the defendants argument was, it took the court three pages
to conclude that it was untenable. The court correctly pointed out that the plaintiff s tort claims
had nothing whatsoever to do with the video rental contracts.339 It is logically untenable,
said the court, that the membership agreements were meant to cover accusations of theft.
Taken to an extreme, Defendants reading of the arbitration clause would require arbitration
of claims such as a [defendants] store ceiling falling in on customers, or a [defendant] store
employee brutally attacking a customer who has signed a membership agreement.340
To be sure, the consumer ultimately prevailed in Sutton, and thus one might argue that the
system works! But why should the consumer even have to litigate this matter, and why should
we overload the system with cases such as this? One can only imagine that, over time, explicit
335. 298 F.Supp.2d at759.

337. 181 F.Supp.2d 504 (D.Md.2002).
339. Id. at511.
340. Id. at 512. It may be worth noting (although it would not have affected the Sutton case) that the
2001 Oregon codification confines to contractual issues the parties power to choose the applicable law.
See supra 392.
400
clauses of the any and all claims type, similar to the one involved in Sutton, will become both
more refined and routine. When that happens, courts will have to employ all available safeguards (and a few more) if they are to protect the presumptively weak party. Even if they do,
the larger question is whether containment is better than prevention. We shall return to this
question later. For now let us keep in mind Benjamin Franklins apothegm that an ounce of
prevention is worth a pound ofcure.
Another problem with the courts approach is that it places too much weight on the wording of the clause. For example, some courts have concluded that a clause that subjects the
agreement or the contract to the chosen law does not encompass noncontractual claims,
341
whereas a clause referring to the relationship resulting from the contract or to any and
all disputes between the parties includes noncontractual claims.342 However, even assuming
that such a literal approach is the best way to surmise the parties intent, the fact is that courts
have not applied it consistently. For example, some courts have concluded that a clause referring to the agreement were broad enough to encompass tort claims, even in the absence of
additional words referring to the relationship.343 Moreover, experience shows that too many
choice-of-law clauses are poorly or haphazardly drafted (often wholesale copied from other
contracts).344 Consequently, slavish reliance on the wording of the clause amounts to an unwise
subservience to form over substance and produces random results.345
D.ProceduralIssues
Another question of scope is whether the parties may include in their choice the procedural
law of the chosen state. The Restatement (Second) does not expressly address this question,
but nothing in the Restatement suggests that the drafters contemplated the idea that a routine
341. See, e.g., Black Box Corp. v.Markham, 127 Fed. Appx. 22, 25 (3d Cir. 2005);Williams v.Deutsche Bank
Secs., Inc., 2005 WL 1414435 at *5 (S.D.N.Y. June 13, 2005); Tissue Transplant Tech., Ltd v.Osteotech, Inc.,
2005 WL 958407 (W.D. Tex. Apr. 26, 2005); Schuller v.Great-West Life & Annuity Ins. Co., 2005 WL 2259993
(N.D. Iowa Sept. 15, 2005); Motmanco, Inc. v.McDonalds Corp., 2005 WL 1027261 (M.D. Fla. Mar. 30, 2005);
Computer Sales Intl., Inc. v.Lycos, Inc., 2005 WL 3307507 (D. Mass. Dec. 6, 2005), reconsideration denied 2006
WL 1896192 (July 11, 2006); U.S. Fidelity & Guar. Co. v.S.B. Phillips Co., Inc., 359 F.Supp.2d 189 (D. Conn.
2005); Scotia Prince Cruises Ltd. v.Pricewaterhousecoopers, 2005 WL 2708311 (Me. Super. Mar. 25,2005).
342. See, e.g., Turtur v. Rothschild Registry Intl, Inc., 26 F.3d 304 (2d Cir. 1994); Hitachi Credit Am.
Corp. v.Signet Bank, 166 F.3d 614 (4th Cir. 1999); Olinick v.BMG Entmt, 42 Cal. Rptr. 3d 268 (Cal. Ct.
App. Apr. 27, 2006), review denied (Aug. 16,2006).
343. See Miyano Mach. USA, Inc. v. Zonar, 1994 WL 233649 (N.D. Ill. May 23, 1994); Interclaim
Holdings Ltd. v.Ness, Motley, Loadholt, Richardson & Poole, 2004 WL 725287 (N.D. Ill. Apr. 1, 2004);
Nedlloyd Lines B.V.v.Superior Court, 834P.2d 1148 (Cal. 1992); Twinlab Corp. v.Paulson, 724 N.Y.S.2d
496 (N.Y.A.D.2001).
344. Acase that aptly exemplifies this point is First National Bank of Mitchell v.Daggett, 497 N.W.2d 358
(Neb. 1993), in which the defendant, a layman, acknowledged that the only reason he inserted a choice-
of-law clause into a trust instrument he drafted was because he had been instructed to do so in a trusts
class, and that he had no idea of the content of the law designated in the clause.
345. See, e.g., Interclaim Holdings, 298 F. Supp. 2d at 749 (concluding that a clause stating that the
Agreement shall be governed and construed in all respects in accordance with the laws of the State of
South Carolina encompassed a claim for punitive damages under South Carolina law); Med. Instrument
Dev. Labs. v. Alcon Labs., 2005 WL 1926673 at *3 (N.D. Cal. Aug. 10, 2005) (concluding that a clause
Contracts
401
choice-of-law clause would include the chosen states procedural law. Indeed, it would not be
sensible or practical to impose on a court the burden of complying with the rules of conducting
a trial or with other purely procedural rules of anotherstate.
However, as the discussion in Chapter4 indicates, the classification of rules or issues into
substantive and procedural is not always free from ambiguity, and the line between the two
categories may shift depending on the purpose and context of the classification. For example,
some rules imposing or regulating attorney fees are substantive and thus can be the object of
a choice-of-law clause,346 wheras others are procedural and thus are governed by the law of the
forum qua forum, regardless of the parties choice of law.347 The same is true about rules regarding prejudgment interest.348
A frequently litigated question with significant practical ramifications involves statutes of
limitation. The traditional theory placed these statutes squarely into the procedural category.
As explained in Chapter13, 28 states continue to follow this characterization even after abandoning the traditional theory in other respects.349 Perhaps for this reason, most courts that have
considered the question of whether a choice-of-law clause includes the statute of limitation of
the chosen state have answered it in the negative.350
providing that the Agreement is to be performed in accordance with the laws of the State of Texas and
shall be construed and enforced with [sic] the laws of the State of Texas did not encompass noncontractual claims); Diamond Waterproofing Sys., Inc. v. 55 Liberty Owners Corp., 826 N.E.2d 802 (N.Y.
2005)(concluding that a clause stating that the contract shall be governed by the law of NewYork did
not include that states statute of limitation, but a clause stating that the contract and its enforcement
shall be governed by NewYork law would).
346. For cases finding that the particular attorney fee rule was substantive, and holding that the choice-
of-law clause included the chosen states rule, see APL Co. Pte. Ltd. v. UK Aerosols Ltd., 582 F.3d 947
(9th Cir. 2009); Boyd Rosene & Assocs., Inc. v.Kansas Mun. Gas Agency, 174 F.3d 1115 (10th Cir. 1999);
Mut. Concepts, Inc. v.First Natl Bank of Omaha, 495 Fed. Appx. 514, 2012 WL 5295192 (5th Cir. Oct.
29, 2012); Smith v. EMC Corp., 393 F.3d 590 (5th Cir. 2004); Dunkin Donuts Inc. v. Guang Chyi Liu,
2002 WL 31375509 (E.D. Pa. Oct. 17, 2002); Elberta Crate & Box Co. v.Cox Automation Sys., LLC, 2005
WL 1972599 (M.D. Ga. Aug. 16, 2005); RLS Assocs., LLC v.United Bank of Kuwait PLC, 464 F.Supp.2d
206 (S.D.N.Y. 2006); Se. Floating Docks, Inc. v.Auto-Owners Ins. Co., 82 So. 3d 73 (Fla. 2012); Fairmont
Supply Co. v.Hooks Indus., Inc., 177 S.W.3d 529 (Tex. App.2005); N.Bergen Rex Transp. v.Trailer Leasing
Co., 730 A.2d 843 (N.J. 1999); Precision Tune Auto Care v. Radcliffe, 815 So. 2d 708 (Fla. App. 2002);
Walls v.Quick & Reilly, Inc., 824 So. 2d 1016 (Fla. Dist. Ct. App.2002).
347. See MRO Commcns, Inc. v. Am. Telephone & Telegraph Co., 197 F.3d 1276 (9th Cir. 1999);
N.Bergen Rex Transp. v.Trailer Leasing Co., 730 A.2d 843 (N.J. 1999); Weatherby Assocs., Inc. v.Ballack,
783 So. 2d 1138 (Fla. Dist. Ct. App.2001).
348. For example, in Travelers Casualty & Surety. Co. v.Insurance Co. of North America, 609 F.3d 143 (3d
Cir. 2010), the court concluded that, although Pennsylvanias prejudgment interest rule for torts was procedural because its primary purpose was to promote settlement, Pennsylvanias prejudgment interest rule for
contracts was substantive because its primary purpose was compensatory. Consequently, the law governing
prejudgment interest was not the law of the forum as such, but rather the law that governs the substance
of the contract. In this case, in which the contract contained a NewYork choice-of-law clause, the issue of
prejudgment interest was governed by the law of NewYork law rather than Pennsylvania. See also Cashman
Equip. Corp. v.U.S. Fire Ins. Co., 368 Fed. Appx. 288, 2010 WL 746423 (3d Cir. Mar. 5,2010).
349. See infra 52831.
350. See FDIC v. Petersen, 770 F.2d 141 (10th Cir.1985); Des Brisay v. Goldfield Corp., 637 F.2d 680
(9th Cir. 1981); Alaska Airlines, Inc. v. Lockheed Aircraft Corp., 430 F. Supp. 134 (D. Alaska 1977);
402
Recently, however, a handful of cases decided in states (such as California) that have
abandoned the traditional procedural characterization of statutes of limitation have held that
a choice-of-law clause included the chosen states statute of limitations.351 For example, in
Hambrecht & Quist Venture Partners v. American Medical International, Inc.,352 a California
court held that a standard choice of law provision (which states that a contract shall be governed by the laws of a particular jurisdiction) incorporates the statute of limitations of the
chosen state,353 at least when that statute provides for a shorter period than that of the forum
state. Without questioning the premise that a choice-of-law clause does not include the chosen states procedural law, the court concluded that, because California abandoned the traditional characterization of statutes of limitation as procedural, there was no reason to exempt
Cleveland Lumber Co. v.Proctor & Schwartz, Inc., 397 F.Supp.1088 (N.D. Ga. 1975); Fla. State Bd. of
Admin. v. Engg & Envtl. Servs., Inc., 262 F. Supp. 2d 1004 (D. Minn. 2003); Fredin v. Sharp,1997 WL
655643 (D. Minn. 1997); Imaging Fin. Servs., Inc. v.Graphic Arts Servs., Inc., 172 F.R.D. 322 (N.D. Ill.
1997); In re Fineberg, 202 B.R. 206 (Bankr. E.D. Pa.1996); In re W. United Nurseries, Inc. v. Estate of
Adams, 191 B.R. 820 (Bankr. D. Ariz. 1996); Manion v. Roadway Package Sys., Inc., 938 F. Supp. 512
(C.D. Ill.1996); McAdams v.Mass. Mut. Life Ins. Co., 2002 WL 1067449 (D. Mass. 2002), aff d 391 F.3d
287 (1st Cir. 2004); Shaw v.Rivers White Water Rafting Resort, 2002 WL 31748919 (E.D. Mich. Nov. 14,
2002); Springfield Oil Servs., Inc. v.Costello, 941 F.Supp.45 (E.D. Pa. 1996); Western Group Nurseries,
Inc. v.Ergas, 211 F.Supp.2d 1362 (S.D. Fla. 2002); Lago & Sons Dairy, Inc. v.H.P. Hood, Inc., 1994 WL
484306 (D.N.H. 1994); Long v.Holland Am. Line Westours, Inc., 26P.3d 430 (Alaska 2001)(invalidating
a Washington choice-of-law clause because Washington law, which permitted contractual shortening of
the limitation period, would violate the fundamental policy of Alaska law, which would be applicable in
the absence of a contrary choice-of-law clause); Belleville Toyota, Inc. v.Toyota Motor Sales, U.S.A., Inc.,
770 N.E.2d 177 (Ill. 2002); Diamond Waterproofing Sys., Inc. v.55 Liberty Owners Corp., 826 N.E.2d 802
(N.Y. 2005)(concluding that a clause stating that the contract shall be governed by the law of NewYork
did not include that states statute of limitation, but a clause stating that the contract and its enforcement
shall be governed by NewYork law would); Nez v.Forney, 783P.2d 471 (N.M. 1989); Portfolio Recovery
Assocs., LLC v.King, 927 N.E.2d 1059 (N.Y. 2010), reargument denied, 15 N.Y.3d 833 (N.Y. Sept. 16, 2010);
Educ. Resources Inst. v.Piazza, 794 N.Y.S.2d 65, 66 (N.Y. App. Div. 2005)(holding that an Ohio choice-
of-law clause did not include Ohios statute of limitation because NewYork courts apply contractual
choice of law clauses only to substantive issues and the Ohio statute was procedural.); Melcher v.Apollo
Med. Fund Mgt. L.L.C., 808 N.Y.S.2d 207 (N.Y. App. Div. 2006); Consol. Fin. Invs., Inc. v.Manion, 948
S.W.2d 222 (Mo. App.1997); Educ. Resources Inst. v.Lipsky, 2002 WL 1463461 (Cal. Ct. App.2002); Fin.
Bancorp. Inc. v. Pingree & Dahle, Inc., 880 P.2d 14 (Utah Ct. App.1994); Gunderson v. F.A. Richard &
Assocs., 44 So. 3d 779 (La. Ct. App.2010), rehg denied (Aug. 25, 2010); Notaro v.Sterling Transp. Servs.,
LLC, 943 N.Y.S.2d 793 (N.Y.Sup. 2012); Hemar Ins. Corp. v. Ryerson, 108 S.W.3d 90 (Mo. App. 2003);
W.Video Collectors v. Mercantile Bank of Kansas, 935 P.2d 237 (Kan. App. 1997); Midland Funding,
L.L.C.v.Paras, 2010 WL 323426 (Ohio Ct. App. Jan. 28, 2010); Shamrock Realty Co., Inc. v.OBrien, 890
N.E.2d 863 (Mass. App.2008); Smither v.Asset Acceptance, LLC, 919 N.E.2d 1153 (Ind. Ct. App.2010).
351. In addition to the cases discussed in the text, the following cases held that the choice-of-law clause
included the chosen states statute of limitations:Avery v.First Resolution Mgmt. Corp., 568 F.3d 1018
(9th Cir. 2009), cert. denied, 130 S.Ct. 554 (2009); ABF Capital Corp. v.Osley, 414 F.3d 1061 (9th Cir.
2005), cert. denied, 546 U.S. 1138 (2006); In re W. United Nurseries Inc., 338 F. Appx 706 (9th Cir.
2009); Resurgence Fin., LLC v.Chambers, 92 Cal. Rptr. 3d 844 (Cal. Ct. App.2009); Hughes Elec. Corp.
v.Citibank Delaware, 15 Cal. Rptr. 3d 244 (Cal. Ct. App.2004), review denied (Sept. 22, 2004). See also
Maxcess, Inc. v.Lucent Techs., Inc., 433 F.3d 1337 (11th Cir. 2005), rehg and rehg en banc denied, 175 Fed.
Appx. 328 (11th Cir. 2006); In re Global Indus. Techs., Inc., 333 B.R. 251 (Bankr. W.D. Pa.2005).
352. 46 Cal. Rptr. 2d 33 (Cal. Ct. App.1995).
353. Id.at35.
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403
such statutes from the scope of the parties choice when the parties failed to address this issue
expressly. The court concluded that, in this case, the application of the chosen states statute of
limitation did not contravene a fundamental policy of California, because California permitted
parties to contractually shorten a statutory limitation period.
In ABF Capital Corporation v. Berglass,354 another California court held that a New York
choice-of-law clause encompassed New Yorks statute of limitation, which barred the action.
The clause provided that [t]his Agreement is governed by and construed under the laws [of
NewYork].355 The court concluded that the words law or laws denote a states entire body
of statutory law, which includes statutes of limitations.356 The court also found, however, that
NewYork had the most significant contacts and that its law would have been applicable even
in the absence of the choice-of-law clause.
In Hatfield v.Halifax PLC,357 the Ninth Circuit, relying on California precedents, held that
an English choice-of-law clause in a contract between an English company and California
investors encompassed Englands statute of limitations, which was longer than Californias statute. The court found that the application of Englands longer statute did not violate Californias
public policy because California law allowed contracting parties to waive or modify the length
of the otherwise applicable California statute of limitations, if such a waiver is in writing and
does not extend the limitations period for more than four years at atime.
American Insurance Co. v. Frischkorn358 and Brill v. Regent Communications, Inc.359 are
among the few cases from other states that reached the same result as the California cases. In
Frischkorn, a West Virginia case, the choice-of-law clause provided that [t]his Agreement shall
be governed by and construed in accordance with the laws of the State of California applicable
to disputes occurring entirely within such State.360 The court noted that [although] the procedural law of a selected jurisdiction, such as its limitations law, is not typically reached by a
choice-of-law clause, the underscored phrase is both unique and unusual.361 The court thought
that the underscored phrase compels the conclusion [that the parties] sought absolute
certainty as to the entire body of law that would cover any [of their] disputes, and that this certainty was attained by treat[ing] disputes under the Agreement, regardless of where they might
otherwise be interpreted as geographically arising, as occurring entirely within California.362
The court concluded that the clause should be interpreted as encompassing Californias statute
of limitations, because when a dispute occurs entirely within such State, both [its] procedural
and substantive law apply.363
354. 30 Cal. Rptr. 3d 588 (Cal. Ct. App.2005), review denied (Oct.19,2005).
355. Id. at 595 (emphasis deleted).
356. Id.
357. 564 F.3d 1177 (9th Cir. 2009)(decided under California conflictslaw).
358. 173 F.Supp.2d 514 (S.D.W.Va.2001).
359. 12 N.E.3d 299 (Ind. App., 2014), transfer denied, 18 N.E.3d 1005 (Ind.2014).
360. Frischkorn, 173 F.Supp.2d at 520 (emphasis in original).
361. Id.
362. Id.
363. Id.
404
In Brill, the clause provided that the contract was to be governed by the laws of Virginia
without regard to any conflict of law provisions thereof.364 Parties routinely include the
quoted phrase in their choice-of-law clauses, in order to avoid the possibility of renvoi and the
attendant complexity and circularity. However, the Indiana court had an entirely different, and
entirely wrong, idea about the meaning and purpose of this phrase. The court concluded that
the quoted phrase d[id] not confine itself to only those conflicts of law provisions pertaining to the choice of substantive law; instead, it was intended to exclude consideration of all
conflicts of law provisions in determining which law to apply.365 Thus, this phrase place[d]
not only the substantive matters but also the procedural matters under the law of the [chosen]
state.366 Following this reasoning, the court held that the choice-of-law clause encompassed
Virginias statute of limitation, which barred the action. The court based its interpretation of
the clause on two equally wrong federal district court cases from other states. In one of those
cases, the court did not cite any authority.367 In the other case, the court admitted that there was
no authority for such an interpretation.368
The particular facts of some of these cases,369 coupled with the quality of their reasoning,
suggest that they are of limited persuasive value, at least as compared to the more numerous
cases that reached the opposite result. Nevertheless, the cases illustrate or at least suggest that
statute-of-limitations conflicts are sui generis conflicts that do not easily fit within the existing formulae for conflicts resolution. For example, the traditional procedural characterization
of statutes of limitation, even if ill-conceived, necessarily excludes them from the scope of a
choice-of-law clause in the same way it exempts them from the scope of the judicial choice-
of-law process in general. Although this exclusion may unduly restrict party autonomy, the
opposite solution of characterizing these statutes as substantive has its own problems as well.
A substantive characterization means that a choice-of-law clause may encompass statutes of
limitation provided the clause uses explicit language to that effectat least in states that allow
choice-of-law clauses to encompass noncontractual issues. However, a substantive characterization does not answer satisfactorily the next question:which states law will provide the standard for defining the limits of party autonomy. As noted earlier, on other substantive issues,
that state is the state whose law would have been applicable in the absence of a choice-of-law
364. Brill, 12 N.E.3d at305.
365. Id. at 307 (quoting OrbusNeich Med. Co. v.Boston Sci. Corp., 694 F.Supp.2d 106, at 113 (D. Mass.
2010)) (emphasis in original).
366. Id. at308.
367. See OrbusNeich Med. Co. v.Boston Sci. Corp., 694 F.Supp.2d 106 (D. Mass.2010).
368. See Am. Ins. Co. v. Frischkorn, 173 F. Supp. 2d 514, at 520 (S.D.W. Va. 2001) (A search of published state and federal case law has not revealed any case where such language has been previously
interpreted.).
369.For example: in Hughes Electronics Corp. v. Citibank Delaware, 15 Cal. Rptr. 3d 244 (Cal. Ct.
App.2004), review denied (Sept. 22, 2004), the result was the same under either states law; in ABF Capital
Corp. v.Osley, 414 F.3d 1061 (9th Cir. 2005), cert. denied, 546 U.S. 1138 (2006) and ABF Capital Corp.
v.Berglass, 30 Cal. Rptr. 3d 588 (Cal. Ct. App.2005), rehg denied (July 26, 2005), review denied (Oct. 19,
2005), the chosen state had the most significant contacts; in Maxcess, Inc. v.Lucent Technologies, Inc.,
433 F.3d 1337 (11th Cir.2005), rehg and rehg en banc denied, 175 Fed. Appx. 328 (11th Cir. 2006), the two
states policies did not differ appreciably; and in Hambrecht & Quist Venture Partners v.American Medical
International, Inc., 46 Cal. Rptr. 2d 33 (Cal. Ct. App.1995) and Hatfield v.Halifax PLC, 564 F.3d 1177 (9th
Cir. 2009), the chosen states statute of limitation did not violate the forums public policy.
Contracts
405
clause (the lex causae).370 However, on this particular issue, that may well be the wrong law in
all cases in which the lex causae is not also the lex fori. Suppose for example that a contract
otherwise governed by the law of State Acontains a choice-of-law clause choosing the substantive and limitations law of State B. If both states have exceedingly long statute of limitation
allowing the action, but the action is filed in State C whose statute of limitation would bar
the action, should State C be compelled to hear it? Respect for party autonomy, as well as the
existing structure, which assigns exclusively to the lex causae (State A) the role of lex limitativa,
would mandate an affirmative answer, but it is doubtful that many courts would agree to it in
such a case, or that they should.
E. Choice ofConflictsLaw
The Restatement (Second) takes the position that, in the absence of clear evidence of contrary
intention, the contractual choice of a states law does not include that states conflicts law.371
This is a perfectly logical position because it conforms to the most likely intent of the parties.
Indeed, it is sensible to assume that parties who had the foresight to address the choice-of-law
issue in advance in hopes of thereby preventing litigation also intended to avoid the complexities of renvoi. As the NewYork Court of Appeals noted in a case involving a generic NewYork
choice-of-law clause:
It strains credulity that the parties would have chosen to leave the question of the applicable substantive law unanswered and would have desired a court to engage in a complicated conflict-of-
laws analysis, delaying resolution of any dispute and increasing litigation expenses. We therefore
conclude that parties are not required to expressly exclude NewYork conflict-of-laws principles
in their choice-of-law provision in order to avail themselves of NewYork substantive law. Indeed,
in the event parties wish to employ NewYorks conflict-of-law principles to determine the applicable substantive law, they can expressly so designate in their contract.372
In line with this reasoning, courts consistently hold that a generic choice-of-law clause
does not include the chosen states conflict law, even if the clause lacks excluding words.
Nevertheless, some parties, leaving nothing to chance, include express anti-renvoi clauses in
their contracts.373
370. See supra 37476.
371. See Restatement (Second) 187cmt. h.(The reference, in the absence of a contrary indication of
intention, is to the local law of the chosen state and not to that states law, which means the totality of
its law including its choice-of-law rules.). The Louisiana and Oregon codifications take the same position, namely that a contractual choice of law is confined to the substantive law of the chosen state, but the
parties are allowed to expressly agree to the contrary. See La. Civ. Code art. 3540cmt. e (2015); Or. Rev.
Stat. 15.300(1) (2015).
372. IRB-Brasil Resseguros, S.A. v. Inepar Investments, S.A., 982 N.E.2d 609, at 612 (N.Y. 2012), cert.
denied, ___U.S. ___, 133 S.Ct. 2396 (2013).
373. See, e.g., Inacom Corp. v.Sears, Roebuck and Co., 254 F.3d 683, 687 (8th Cir. 2001)(the Agreement
shall be governed by and construed in accordance with the law of the State of Illinois, as applied to contracts made and to be performed solely within such state, without regard to conflict or choice of law rules,
provisions, or principles.); Turtur v.Rothschild Registry Intl, Inc., 26 F.3d 304, 309 (2d Cir. 1994)([t]his
406
In the rest of the world, most national codifications, and all international conventions and
similar instruments, take the same position as the Restatement; namely, that a contractual
choice of law presumptively excludes the chosen states conflicts law.374 However, the Rome
I Regulation takes a harder line by adopting an anti-renvoi rule rather than a presumption
rebuttable by evidence of contrary intention.375
F. Choice ofNonstateNorms
The final question regarding the scope of party autonomy is whether, outside the realm
of arbitration, contracting parties may choose nonstate norms, as opposed to choosing the law of a state.376 The Hague Contracts Principles refer to these norms as rules of
note shall be governed by, and interpreted under, the laws of the State of NewYork applicable to contracts
made and to be performed therein without giving effect to the principles of conflict of laws.); Glyka
v.New England Cord Blood Bank, Inc., No. 07-10950-DPW, 2009 WL 1816955, at *3 (D. Mass. June 25,
2009)([a]ll agreements are governed by Massachusetts law (excluding conflicts of laws)); Petroleum
Corp. v. Krystal Gas Mktg. Co., Inc., No. 05-CV-0716-CVE-SAJ, 2006 WL 2645133, at *1 (N.D. Okla.
Sept. 12, 2006) (This Agreement is governed by and construed in all respects in accordance with
the substantive laws of the State of Oklahoma, excluding conflict of laws provisions.); Digital Envoy,
Inc. v.Google, Inc., 370 F.Supp.2d 1025, 1029 (N.D. Cal. 2005)(the agreement is to be governed by the
laws of the State of California as it applies to a contract made and performed in such state, excluding
conflicts of laws principles.); Union Oil Co. of Cal. v.John Brown E & C, 1994 WL 535108, at *1 (N.D.
Ill. 1994) (the contract shall be construed, interpreted, and enforced in accordance with the laws and
jurisprudence of the State of California, and without reference to Californias rules regarding Conflict
of Laws.); Brill v. Regent Commcns, Inc., 12 N.E.3d 299, 305 (Ind. Ct. App.2014), transfer denied, 18
N.E.3d 1005 (Ind. 2014)(providing that the contract was to be governed by the laws of Virginia without
regard to any conflict of law provisions thereof ); Olinick v.BMG Entmt, 42 Cal. Rptr. 3d 268, 272 (Cal.
Ct. App.2006), review denied (Aug. 16, 2006)(This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of NewYork, without regard to conflicts of laws.).
374. For documentation, see Symeonides, Codifying Choice of Law 13840.
375. For documentation and critique, see id. at 13940.
376. From the vast literature on nonstate norms, see, e.g., B. Benson, The Enterprise of Law:Justice without the State (1990); K.P. Berger, The Creeping Codification of the New Lex Mercatoria (2d ed. 2010); A.C.
Cutler, Private Power and Global Authority:Transnational Merchant Law in the Global Political Economy
(2003); A. Lpez Rodrguez, Lex Mercatoria and Harmonization of Contract Law in the EU (2003); D.
Oser, The UNIDROIT Principles of International Commercial Contracts: A Governing Law? (2008); P.
Berman, Towards a Cosmopolitan Vision of Conflict of Laws: Redefining Governmental Interests in a
Global Era, 153 U. Pa. L. Rev. 1819 (2005); P. Berman, Towards a Jurisprudence of Hybridity, 1 Utah
L.Rev. 11 (2010); M. Bonell, Soft Law and Party Autonomy:The Case of the UNIDROIT Principles, 51
Loy. L.Rev. 229 (2005); M. Bonell, Towards a Legislative Codification of the UNIDROIT Principles? 12
Unif. L. Rev. 233 (2007); R. Cooter, Decentralized Law for a Complex Economy, 23 Sw. U. L. Rev. 443
(1994); R. Cooter, Structural Adjudication and the New Law Merchant:AModel of Decentralized Law, 14
Intl Rev. L.& Econ. 215 (1994); G. Cuniberti, Three Theories of Lex Mercatoria, 52 Col. J.Transnl L. 369
(2014); C. Drahozal, Contracting Out of National Law:An Empirical Look at the New Law Merchant, 80
Notre Dame L.Rev. 523 (2005); N. Hatzimihail, The Many Livesand Facesof Lex Mercatoria:History
as Genealogy in International Business Law, 71 Law & Contemp. Probs. 169 (2008); N. Jansen & R.
Michaels, Private Law beyond the State? Europeanization, Globalization, Privatization, 54 Am. J.Comp. L.
843 (2006); F. Juenger, American Conflicts Scholarship and the New Law Merchant, 28 Vand. J.Transnl L.
487, (1995); D. Lawrence, Private Exercise of Governmental Power, 61 Ind. L.J. 647 (1986); M. Lehmann,
Liberating the Individual from Battles between StatesJustifying Party Autonomy in Conflict of Laws, 41
Contracts
407
law,377 a term appropriated by the arbitration literature since the early 1990s, which is not
accurate and not necessarily neutral. This term is not accurate because, if these norms were
really rules of law, they should possess the same attributes as real rules of law, such as
the rules of a statute. They do not. They lack the attributes of statutory, judge-made, or
customary rules.378 Moreover, this term is not necessarily neutral. Although some of these
norms are drafted by intergovernmental bodies such as Unidroit379 and Uncitral,380 or
impartial academic groups such as the Lando Commission,381 others are drafted by private organizations without any popular participation or approbation. In the United States,
these organizations include banking clearing-houses, credit card associations, commodities
merchants such as diamond dealers, grain merchants, and cotton merchants, the American
Arbitration Association (AAA), the NewYork Stock Exchange (NYSE), the American Stock
Exchange (AmEx), the National Association of Securities Dealers (NASD), and, more
recently, Internet service and domain providers.382 It is one thing to apply these norms to
disputes between their drafters, for example, banks, grain merchants, or diamond dealers,
and another thing altogether to apply them to credit-cardholders or other consumers. It
Vand. J.Transnl L. 381 (2008); J. Macey, Public and Private Ordering and the Production of Legitimate
and Illegitimate Legal Rules, 82 Cornell L. Rev. 1123 (1997); F. Marrella, Choice of Law in the Third-
Millennium Arbitrations:The Relevance of the Unidroit Principles of International Commercial Contracts,
36 Vand. J.Transnl L. 1137 (2003); R. Michaels, The Re-state-ment of Non-state Law:The State, Choice of
Law, and the Challenge from Global Legal Pluralism, 51 Wayne L.Rev. 1209 (2005); R. Michaels, The True
Lex Mercatoria:Law beyond the State, 14 Ind. J.Global Legal Stud. 447 (2007); R. Michaels, The Mirage
of Non-State Governance, 1 Utah L. Rev. 31 (2010); H. Muir Watt, Party Autonomy in International
Contracts:From the Makings of a Myth to the Requirements of Global Governance, 6 Eur. Rev. Contr. L.
250 (2010); F. Rodi, Private Law beyond the Democratic Order? On the Legitimatory Problem of Private
Law beyond the State, 56 Am. J.Comp. L. 743 (2008); G. Saumier, Designating the Unidroit Principles
in International Dispute Resolution, 17 Unif. L.Rev. 533 (2012); S. Schwarcz, Private Ordering, 97 Nw.
U.L. Rev. 319 (2002); A. Schwartz & R. Scott, The Political Economy of Private Legislatures, 143 U. Pa.
L.Rev. 595 (1995); D. Snyder, Private Lawmaking, 64 Ohio St. L.J. 371 (2003); P. Stephan, The Futility of
Unification and Harmonization in International Commercial Law, 39 Va. J.Intl L. 743 (1999); P. Stephan,
Accountability and International Lawmaking:Rules, Rents and Legitimacy, 17 Nw. J.Intl L.& Bus. 681
(1996); S. Symeonides, Party Autonomy and Private Law-Making in Private International Law:The Lex
Mercatoria That Isnt, in Festschrift fr Konstantinos D.Kerameus 1397 (2009).
377. Hague Contracts Principles, art.3.
378. They do not emanate from the collective will of the people formally expressed through the ordinary, and nowadays democratic, legislative process; they do not result from the pronouncements of the
judiciary; and they do not qualify as custom, that is, a usually spontaneous practice repeated for a long
time (longa consuetudo) and generally accepted as having acquired the force of common and tacit consent
(opinio juris).
379. See Unidroit Principles of International Commercial Contracts (2004), available at http://www.
unidroit.org/english/principles/contracts/main.htm. For authoritative commentary, see M. Bonell, An
International Restatement of Contract Law:The Unidroit Principles of International Commercial Contracts
(2d ed.1997).
380. See http://www.uncitral.org/uncitral/en/uncitral_texts.html. (last visited Nov. 18,2015)
381. See Principles of European Contract Law (1999), available at http://frontpage.cbs.dk/law/commission_on_european_contract_law. For authoritative commentary by the principal drafters, see O. Lando
& H. Beale (eds.), The Principles of European Contract Law, Parts Iand II (1999); O. Lando, E. Clive, A.
Prm & R. Zimmermann (eds.), Principles of European Contract Law, Part III (2003).
382. For citations, see Symeonides, Party Autonomy and Private Law-Making, supra note 376, atII.A.
408
is reasonable to assume that, in drafting these norms, the credit card association was not
overly solicitous of the interests of the cardholders.
Although nonstate norms long have been used in arbitration, they have not received legislative or judicial sanction for use in litigation. The Restatement (Second) uses the terms local
law and law in a way that ties both terms to a state, which the Restatement defines as a
a territorial unit with a distinct general body of law.383 This definition, combined with the
repeated use of the phrase law of the state in Section 187, makes it clear that the Restatement
drafters did not contemplate the contractual choice of nonstate norms. However, for issues that
fall within the parties contractual power, the Restatement allows parties to incorporate by reference into their contract the nonstate norms of their choice.384 The U.C.C., which employs a
similar dichotomy between variable and nonvariable rules of the U.C.C., allows the contractual
incorporation of nonstate norms with regard to matters governed by variable rules.385 Finally,
the Rome IRegulation takes the same position. Although it does not allow a choice of nonstate
norms, it does not preclude parties from incorporating by reference into their contract a non-
State body of law or an international convention.386
The first international instrument to endorse explicitly the choice of nonstate norms beyond
the realm of arbitration is the Hague Contracts Principles of 2015, followed by Paraguay in the
same year.387 Article 3 of the Hague Principles provides that the law chosen by the parties
may be rules of law that are generally accepted on an international, supranational or regional
level as a neutral and balanced set of rules, unless the law of the forum provides otherwise.388
Thus, the article introduces two important qualifiers for nonstate norms. The first focuses on

384. Restatement (Second) 187 cmt. c states that the parties may incorporate into the contract by
reference extrinsic material which may, among other things, be the provisions of some foreign law. The
extrinsic material may be the law of another state, but it can also be a treatise on contract law, or a collection of nonstate norms. Indeed, the Reporters Notes expressly state that the parties may also stipulate
for the application of trade association rules or well-known commercial customs. Id. 187, Reporters
Note to Subsection(1).
385. See U.C.C. 1302, cmt. 2. (An agreement that varies the effect of provisions of the Uniform
Commercial Code may do so by stating the rules that will govern in lieu of the provisions varied.
Alternatively, the parties may vary the effect of such provisions by stating that their relationship will be
governed by recognized bodies of rules or principles applicable to commercial transactions. Such bodies
of rules or principles may include, for example, those that are promulgated by intergovernmental authorities such as UNCITRAL or Unidroit , or non-legal codes such as trade codes.).
386. Rome I, recital(13).
387. See Paraguayan Law 5393 of 2015Regarding the Applicable Law to International Contracts, Article
5 (In this law, a reference to law includes rules of law that are generally accepted on a non-state origin,
as a neutral and balanced set of rules.)
388. Hague Principles, Art. 3.For discussion of this article, see R. Michaels, Non-State Law in the Hague
Principles on Choice of Law in International Commercial Contracts, in K. Purnhagen & Peter Rott (eds.),
Varieties of European Economic Law and Regulation: Liber Amicorum for Hans Micklitz 43 (2014); G.
Saumier, The Hague Principles and the Choice of Non-State Rules of Law to Govern an International
Commercial Contract, 40 Brook. J.Intl L. 1 (2014). See also B.A. Marshall & M. Pertegs, Party Autonomy
and Its Limits: Convergence through the New Hague Principles on Choice of Law in International
Commercial Contracts, 39 Brook. J.Intl L. 975 (2014); S. Symeonides, The Hague Principles on Choice of
Law for International Contracts:Some Preliminary Comments, 61 Am. J.Comp. L. 873 (2013).
Contracts
409
their attributes:(1)They must be a set of rules, that is, fairly complete and comprehensive;
(2)they must be neutral and balanced; and (c)they must be generally accepted as such on
an international, supranational, or regional level. The second qualifier restates the obvious,
namely that these norms will not be treated on equal footing with real rules of law if the law of
the forum provides otherwise, for example, by not treating these norms as law. This qualifier
is obvious because the principles themselves are soft law and thus apply only to the extent
that the law of the forum allows. Even so, such a qualifier is necessary in order to avoid uncertainty about preserving the status quo in states that do not recognize these norms. Without the
unless phrase, the courts of a Member State of the Hague Conference that acquiesces to this
compromise may infer a change in that states position and begin to interpret its choice-of-law
rules accordingly.
Obviously, the unless clause does not apply to arbitration, which differs in significant
respects from litigation. As discussed in the next chapter,389 the parties have always had the
power to authorize the arbitral tribunal to decide their dispute ex aequo et bono, that is, according to what is just and fair, without reference to any state law. Afortiori, the parties have the
power to authorize the tribunal to decide according to a designated set of nonstate norms. In
fact, the tribunal has the power to apply nonstate norms, as long as the parties did not limit
that power by contrary agreement.390
VI. PARTY AUTONOMY AND

PRESUMPTIVELY WEAK PARTIES
A.Introduction
As noted earlier, the choice-of-law principle referred to as party autonomy is simply the external side of the domestic law principle referred to as freedom of contract. In other words,
parties are autonomous because they are free. However, at least since the middle of the previous century, most legal systems, acknowledging that some parties are less free than others,
implemented reforms and imposed restrictions in order to protect presumptively weak parties,
such as employees or consumers. From the perspective of conflicts law, the question is how and
to what extent should these restrictions operate at the interstate level. Various conflicts systems
answer this question differently, but, in terms of form, their answers follow two basic models:
(1) The legislative model, prevalent in civil law countries, which protects presumptively
weak parties a priori, through specific statutory choice-of-law rules;and
(2) The judicial model, prevalent in some common law countries, primarily the United
States, which relies much less on legislation and much more on the courts to provide
the needed protection a posteriori, on a case-by-casebasis.

390. See, e.g., AAA International Arbitration Rules, Art. 31 (2014) (providing that in the absence of a
choice-of-law clause, the tribunal shall apply such law(s) or rules of law as it determines to be appropriate, and that the tribunal shall not decide as amiable compositeur or ex aequo et bono unless the parties
have expressly authorized it to doso.).
410
This section offers a brief description of examples of the first model, and then discusses
representative Americancases.
B. Comparative Excursus:
The Civil Law Model
A perusal of choice-of-law codifications enacted in the last 50years shows that many of them
contain rules specifically designed to protect presumptively weak parties at the international
level. For example, many codifications either completely exempt consumer contracts from the
scope of party autonomy, or subject them to special limitations designed to protect the consumer.391 The Swiss codification is one of those falling within the first category.392 It subjects
391. The literature on choice of law in consumer contracts is quite extensive. The following are some of
the most recent writings on the subject:D. Fernndez Arroyo (ed.), Consumer Protection in International
Private Relationships (2010); L.E. Gillies, Electronic Commerce and International Private Law:AStudy of
Electronic Consumer Contracts (2008); J. Hill, Cross-Border Consumer Contracts (2008); S. Klauer, Das
europische Kollisionsrecht der Verbrauchervetrge zwischen Rmer EV und EG-Richtlinien (2002); C.
Lima Marques, O novo direito privado e a proteo dos vulnerveis (2012); C. Lima Marques, Contratos
no Cdigo de Defesa do Consumidor (6th ed. 2011); C. Lima Marques, A. Herman Benjamin & L. Bessa,
Manual de Direito do consumidor (3d ed. 2011); Z. Tang, P. Beaumont & J. Harris, Electronic Consumer
Contracts in the Conflict of Laws (2009); P.A. Brand, Cross-Border Consumer Protection within the EU
Inconsistencies and Contradictions in the European System of Conflict of Law Rules and Procedural Law,
IPRax 126 (2013); P. Cachia, Consumer Contracts in European Private International Law:The Sphere of
Operation of the Consumer Contract Rules in the Brussels Iand Rome IRegulations, 34 Eur. L.Rev. 476
(2009); J. De Lisle & E. Trujillo, Consumer Protection in Transnational Contexts, 58 Am. J.Comp. L. 135
(2010 Supp.); P. Deumier, La protection des consommateurs dans les relations internationales, Rev. Intl
Dr.Comp. 273 (2010); D. Fernndez Arroyo, Current Approaches towards Harmonization of Consumer
Private International Law in the Americas, 58 Intl & Comp. L.Q. 411 (2009); F. Garcimartn Alfrez, The
Rome IRegulation:Exceptions to the Rule on Consumer Contracts and Financial Instruments, 5 J. Priv.
Intl L. 85 (2009); L.E. Gillies, Choice-of-Law Rules for Electronic Consumer Contracts: Replacement
of the Rome Convention by the Rome IRegulation, 3 J. Priv. Intl L.89 (2007); L.E. Gillies, Addressing
the Cyberspace Fallacy:Targeting the Jurisdiction of an Electronic Consumer Contract, 16 Intl J.L. &
Info. Tech. 242 (2008); J.J. Healy, Consumer Protection Choice of Law:European Lessons for the United
States, 19 Duke J. Comp. & Intl L. 535 (2009); J. Hill, Article 6 of the Rome I Regulation: Much Ado
about Nothing, 2009 Nederl. IPR. 437 (2009); S. Leible, Consumer Protection in International Relations,
in J. Basedow, U. Kischel & U. Sieber (eds.), German National Reports to the 18th International Congress
of Comparative Law 109 (2010); E.A. OHara, Choice of Law for Internet Transactions: The Uneasy
Case for Online Consumer Protection, 153 U. Pa. L.Rev. 1883 (2005); Z. Papassiopi-Passia, Consumer
Protection in Greek Private International Law, 63 Rev. Hellnique Dr.Intl 79 (2010); G. Rhl, Consumer
Protection in Choice of Law, 44 Cornell Intl L.J. 569 (2011); P. Schlosser, Death-Blow to the So-Called
Supplementary Interpretation of Contracts (ergnzende Vertragsauslegung) in the Case of Invalid
Terms in Consumer Contracts? 2012/6 IPRax 507 (2012); Z. Tang, Private International Law in Consumer
Contracts:AEuropean Perspective, 6 J. Priv. Intl L. 225 (2010); Z. Tang, Consumer Collective Redress
in European Private International Law, 7 J. Priv. Intl L. 101 (2011); Z. Tang, Parties Choice of Law in
E-Consumer Contracts, 3 J. Priv. Intl L. 113 (2007); V. Trstenjak & E. Beysen, European Consumer
Protection Law:Curia Semper Dabit Remedium?, 48 Com. Mrkt. L.Rev. 95 (2011).
392. For other examples, see Argentinean draft codif. Art. 2655; Chinese codif. Art. 42; Uruguayan draft
codif. Art. 50.5. The Oregon codification exempts from the scope of party autonomy consumer contracts
in which the consumer is an Oregon resident and the consumers assent to the contract is obtained in
Oregon, or the consumer is induced to enter into the contract in substantial measure by an invitation or
Contracts
411
contracts involving a passive consumer393 to the law of her habitual residence and specifically
precludes the contractual choice of another law.394
Other codifications also preclude party autonomy in employment contracts.395 For example, the Ukrainian codification subjects to Ukrainian law contracts for employment to be
performed in Ukraine, or contracts between Ukrainian employers and employees for employment outside Ukraine.396 The Uruguayan draft codification allows the employee, but not the
employer, to choose from among the laws of the place of employment, or the employees or the
employers domicile.397
advertisement in Oregon. Or. Rev. Stat. 15.320(4) (2015). For discussion, see S. Symeonides, Oregons
Choice-of-Law Codification for Contract Conflicts: An Exegesis, 44 Willamette L. Rev. 205 (2007); S.
Symeonides, Codifying Choice of Law for Contracts:The Oregon Experience, 67 RabelsZ 726 (2003).
393. Apassive consumer is one whose assent to the contract is obtained in either her home-state or in
another state, as a result of solicitation or other enticement taking place in the home-state.
394. See Swiss codif. Art. 120. The 1986 Hague Sales Convention also exempts from its scope, and thus
from the scope of party autonomy, consumer sales, which it defines as sales of goods bought for personal,
family or household use. Hague Sales Convention, Art. 2(c). However, the exemption does not apply
if the seller neither knew nor ought to have known that the goods were bought for any such use. Id.
The 2015 Hague Contracts Principles confine their scope to commercial contracts, which are defined
as those in which each party is acting in the exercise of its trade or profession, namely, B2B contracts.
Hague Contracts Principles, Art. 1. To avoid any doubt, the Principles single out two noncommercial
contracts, namely consumer contracts and employment contracts, and expressly exclude them from the
scope of the Principles. Id. The Hague Choice of Court Convention also contains a similar exclusion. See
Hague Convention of 30 June 2005 on Choice of Court Agreements, art.2(1).
395. See Chinese codif. Art. 43; Tunisian codif. Art. 67. The Oregon codification exempts from the scope
of party autonomy contracts of employment for services to be rendered primarily in Oregon by a resident
of Oregon. Or. Rev. Stat. 15.320(3) (2015). For discussions of choice of law in employment contracts,
see, e.g., L. Ferret, Employment Contracts in Private International Law (2012); U. Liukkunen, The Role
of Mandatory Rules in International Labour Law (2004); B. Cooper et al., Economic Globalization and
Convergence in Labor Market Regulation:An Empirical Assessment, 60 Am. J.Comp. L. 703 (2012); D.
Doorey, In Defense of Transnational Domestic Labor Regulation, 43 Vand. J. Transnl L. 953 (2010); P.
Goulding & M. Vinall, The English Approach to Jurisdiction and Choice of Law in Employment Covenants
Not to Compete, 31 Comp. Lab. L.& Poly J. 375 (2010); U. Gruic, Jurisdiction in Employment Matters
under Brussels I: A Reassessment, 61 Intl & Comp. L.Q. 91 (2012); U. Gruic, The Territorial Scope of
Employment Legislation and Choice of Law, 75 Mod. L.Rev. 722 (2012); S. Krebber, Qualifikationsrechtlicher
Rechtsformzwang
Der Arbeitsvertrags-und Arbeitnehmerbegriff im Europischen Kollisions-und
Verfahrensrecht, in H. Kronke & K. Thorn (eds.), Grenzen berwinden, Prinzipien bewahren: Festschrift
fr Bernd von Hoffmann 218 (2012); G. Lester & E. Ryan, Choice of Law and Employee Restrictive
Covenants: An American Perspective, 31 Comp. Lab. L. & Poly J. 389 (2010); T. Mahnhold, Choice of
Law Provisions in Contractual Covenants Not to Compete: The German Approach, 31 Comp. Lab.
L. & Poly J. 331 (2010); E. Menegatti, The Choice of Law in Employment Contracts: Covenants Not to
Compete under the Italian Legislation, 31 Comp. Lab. L. & Poly J. 799 (2010); K. Roberts, Correcting
Culture: Extraterritoriality and U.S. Employment Discrimination Law, 24 Hofstra Lab. & Emp. L.J. 295
(2007); C. Smith & E. Moy, Outsourcing American Civil Justice: Mandatory Arbitration Clauses in
Consumer and Employment Contracts, 44 Tex. Tech L. Rev. 281 (2012); A. Stewart & J. Greene, Choice
of Law and the Enforcement of Post-employment Restraints in Australia, 31 Comp. Lab. L.& Poly J. 305
(2010); R. Yamakawa, Transnational Dimension of Japanese Labor and Employment Laws:New Choice of
Law Rules and Determination of Geographical Reach, 31 Comp. Lab. L.& Poly J. 347 (2010).
396. See Ukrainian codif. Arts.5255.
397. See Uruguayan draft codif. Art.50.6.
412
Some codifications exempt insurance contracts from the scope of party autonomy. For
example, Article 3119 of the Quebec codification provides that [n]otwithstanding any agreement to the contrary, insurance contracts with certain enumerated connections with Quebec
are governed by Quebec law.398
Finally, the list of contracts exempted from the scope of party autonomy, or of the countries where such exemptions exist, grows significantly longer than the above examples indicate
if one looks beyond choice-of-law codifications into the realm of substantive law. As documented elsewhere,399 many substantive statutes contain localizing provisions mandating the
application of the law of the enacting state to certain contracts with enumerated contacts with
that state and excluding both the judicial and the contractual choice of another states laws.
Such localizing substantive rules are common, not only for the contracts listed above (e.g.,
consumer, employment, and insurance contracts), but also for construction contracts, carriage
contracts, charter contracts, and franchise or distributorship contracts. Under the principle of
lex specialis derogat legi generali, these rules prevail over the rules of choice-of-law codifications
that authorize party autonomy.
The Rome Convention of 1980 adopted a more nuanced approach to consumer contracts and
employment contracts, designed to protect the consumer or employee from the consequences
of an adverse choice-of-law.400 Several national codifications outside the EU introduced similar
protections for consumer contracts only,401 or for both consumer and employment contracts.402
398. Quebec codif. Art. 3119. The article applies to non-marine insurance contracts respecting property or an interest situated in Qubec or subscribed in Qubec by a person resident in Qubec if the
policyholder applies therefore in Qubec or the insurer signs or delivers the policy in Qubec and contracts of group insurance of persons where the participant has his residence in Qubec at the time
he becomes a participant. See also Puerto Rico draft codif. Art. 37 (applicable to contracts with specified
Puerto Rico connections); Uruguayan draft codif. Art. 50.78.
400. See Rome Convention, arts.56.
401. See Albanian codif. Art. 52; Argentinean draft codif. Art. 2655; Russian codif. Art. 1212; Ukrainian
codif. Art.45.
402. See FYROM codif. Arts. 2425; Japanese codif. Arts. 1112; South Korean codif. Arts. 2728;
Liechtenstein codif. Arts. 45, 48; Puerto Rico codif. Arts. 3536; Quebec codif. Arts. 31173118; Serbian
draft codif. Arts. 14142; Turkish codif. Arts. 2627. The Puerto Rico codification (Art. 37)extends this
protective treatment to insurance contracts with specified Puerto Rico connections. However, the Japanese
codification is somewhat peculiar in that it makes the application of the mandatory rules dependent
on the consumer or the employee express[ing] his/her will to the business operator [or the employer,
respectively,] to the effect that such mandatory rules should apply. Japanese codif. Arts. 11, 12. The stated
reason for this requirement is to relieve the court from the burden of having to know and ex officio apply
these rules. See Nishitani, supra note 121, at 9596; Y. Okuda, Reform of Japans Private International
Law:Act on the General Rules of the Application of Laws, 8 Y.B. Priv. Intl L. 145, 153 (2006). According
to Japanese commentators, the consumer or employee may invoke this protection at any time until the
conclusion of the oral argument in the trial court, as well as in extrajudicial proceedings. Y. Okuda, A
Short Look at Rome Ion Contract Conflicts from a Japanese Perspective, 10 Ybk. Priv. Intl L. 301, 308
(2008); Y. Okuda, Reform, supra, at 153 (quoting a government statement in Parliament). This post-
dispute choice of law by one party makes the Japanese codification both more practical and more protective of that party (here the consumer or employee) than Rome Iand other codifications. But see Okuda,
AShort Look, supra, at 30809 (stating that this rule overly protect[s] the consumer or employee and
is unfair to the other party).
Contracts
413
The Rome IRegulation, which succeeded the Rome Convention, reproduced the protection
for consumers and employees and extended similar (but not as effective) protection to passengers and insureds in certain small risk insurance contracts.403 Rome Idifferentiates among
three types of contracts:(1)consumer and employment contracts; (2)passenger and insurance
contracts; and (3)all other contracts. It imposes substantive restrictions on party autonomy in
contracts of the first category, geographical restrictions in contracts of the second category, and
virtually no restrictions in all other contracts.
For contracts in the first category, Rome I provides that a choice-of-law agreement may
not deprive a passive consumer or an employee of the protection of the mandatory rules of
the state whose law would have been applicable in the absence of the agreementthe lex causae.404 In consumer contracts, the state of the lex causae is the one in which the consumer has
her habitual residence, if the other party pursues commercial or professional activities in that
state or directs such activities to that state or to several states including that state.405 In employment contracts, the state of the lex causae is ordinarily the state in which (or from which) the
employee habitually works, unless the contract is more closely connected with another state.406
Moreover, the Brussels IRegulation on Jurisdiction and the Recognition and Enforcement of
Judgments provides additional protection by declaring that pre-dispute forum selection clauses
disfavoring consumers or employees are not enforceable.407
The EU scheme works perfectly well, perhaps too well, in protecting passive consumers and employees from the consequences of an adverse contractual choice of law. In effect,
Rome Iallows the possibility of double protection, that is, under the chosen law and the lex
causae. Consumers and employees can enjoy the protection of whichever of the two laws is
more protective, and, in some instances, the protection of both laws for different aspects of the
contract.408 This may appear too generous to the consumer or employee, but the other contracting party may easily avoid this generosity simply by not deviating from the lex causae. In any
event, one may argue that it is better to err on the side of overprotecting, rather than under-
protecting, weak parties such as consumers or employees.
In contracts of the second category, Rome I attempts to protect passengers and insureds
by imposing geographical rather than substantive restrictions on party autonomy. Thus, in
contracts for the carriage of passengers, the parties choice is limited to the country in which
(1)the passenger has her habitual residence, or (2)the carrier has its habitual residence or central administration, or (3)the country of the place of departure or destination.409 In small risk
403. See Rome I, art. 5(2) (contracts of carriage of passengers), art. 6 (consumer contracts), art. 7(3)
(small risk insurance contracts); art. 8 (employment contracts).
404. See Rome I, arts. 6(2),8(1).
405. Rome I, art.6(1).
406. Rome I, art. 8(24).
407. See Articles 19 and 23 of Regulation (EU) No. 1215/2012 of the European Parliament and of the
Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in
Civil and Commercial Matters (Recast) (hereafter Brussels I Regulation), L 351/1 O.J. (20.12.2012).
These provisions are discussed in Chapter12,infra.
408. Moreover, this protection includes all mandatory rules of the lex causae without requiring that those
rules embody a strong public policy.
409. See Rome I, art.5(2).
414
insurance contracts, the parties choices are subject to similar geographic restrictions.410 For
these contracts, as well as for all other contracts, Rome Iimposes no substantive limitations
on party autonomy other than those imposed by the mandatory rules or the public policy of
the forum state.411
However, as discussed in detail in another publication,412 this elaborate scheme protects
some weak parties but not others. For example, the geographic restrictions of Rome Ido not
always protect passengers or insureds. Choosing the law of the place of destination in a passenger contract, or the law of the insureds nationality in a life insurance contract, does not necessarily guarantee the passenger or the insured protection. Moreover, Rome Idoes not provide
any protection for other presumptively weak parties, such as franchisees. Finally, the parties
that fall between the cracks of Rome Iare totally out of luck because Rome Idoes not contemplate, indeed does not permit, equitable or remedial judicial intervention.
These are the advantages and disadvantages of a front-loaded model that relies so much on
legislation and so little on the judiciary. If the legislative scheme is perfect and gapless, it will
protect all parties that deserve protection. But if the legislation is imperfect or has gaps, and
does not authorize judges to correct the imperfections or fill the gaps, the result leaves much
to be desired. Even so, one could argue that it is preferable to have black-letter rules protecting
weak parties in most cases (even if those rules do not work well in some cases) rather than not
having any suchrules.
The opposite model is a back-loaded scheme that has one-size-fits-all rules and then relies
on the judiciary to make them work equally well in diverse cases. The American model, to
which the discussion now turns, seems to fit this basic framework.
C. The AmericanModel
1.Introduction
A comparison between the Restatement (Second) and the civil law model exemplified by Rome
Iis a study in contrasts, with each document reflecting the legal culture that produced it. The
Restatement reflects a typical American skepticism toward categorical a priori rulesa skepticism reinforced by the first Restatements failureand a high degree of confidence in the courts
ability to develop appropriate solutions on a case-by-case basis. In a style characteristic of the
American legal culture, the Restatement (Second) prefers to err on the side of under-regulation
rather than over-regulation. It provides only a single party-autonomy rule (Section 187) for
all contracts, rather than several rules for different types of contracts or issues, as it does for
contracts that do not contain a choice-of-law clause. Section 187 imposes only two flexible
limitations to party autonomy: (1) the easily met requirement for a substantial relationship
to the chosen state or another reasonable basis for the choice, and (2)the requirement that
the application of the chosen law should not violate a fundamental policy of the lex causae.
410. See id., art.7(3).

411. See id. arts. 9(2), 21. In addition, Article 9(3) imposes the limitations embodied in the overriding
mandatory rules of the lex fori (as well as of the state of performance), but those rules contemplate an
equally high threshold as that of the ordre public exception, even if they operate differently.
Contracts
415
The Restatement does not define any of the flexible terms quoted above. It relies instead on
judges to interpret these terms on a case-by-case basis, confident in the belief that it is better
to trust judges than confine them. The fact that American state and federal judges are products
of the same legal training and tradition, despite serving different sovereigns, coupled with the
rich judicial experience in working with malleable approaches rather than black-letter rules,
explains the high degree of discretion the Restatement accords judges. The hope is that, over
time, judges will develop uniform (or at least similar) solutions and thus eventually provide a
modicum of consistency and predictability. The result of the Restatements application has been
a great degree of judicial flexibility, perhaps at the expense of predictability and consistency.
Admittedly, the fact that the Restatement is not a code may explain these attributes.
However, the U.C.C., which is positive law, shares the same attributes. The U.C.C too devotes
only one section to party autonomy, Section 1-301, which is even more laconic than Section
187 of the Restatement. Section 1-301 of the U.C.C.provides that when a transaction bears
a reasonable relation to [the forum] state and also to another state or nation the parties may
agree that the law of either [the forum] state or of such other state or nation shall govern their
rights and duties.413 Thus, in contracts covered by this provision, a reasonable relation with
the chosen state is the only express condition for allowing a contractual choice oflaw.
Moreover, an attempt to add flesh and bones to this laconic provision failed miserably.
In 2001, the U.C.C. Commissioners proposed a major detailed revision of Section 1-301,
which drew heavily from the Rome Convention. Besides introducing the European concept
of mandatory rules, the proposed revision differentiated between consumer contracts and
business-to-business contracts, as well as between international contracts and intra-U.S.interstate contracts, and imposed different party autonomy restrictions for each category.414
Unfortunately, these ideas proved unpopular with industry leaders and, therefore, state legislatures. By 2008, only the U.S. Virgin Islands had adopted the proposed revision, thus forcing the
U.C.C. Commissioners unceremoniously to withdrawit.
As result, the task of protecting consumers, employees, and other presumptively weak parties has remained with the courts. The discussion below examines representative samples from
conflicts cases involving employment, consumer, and franchise contracts. Chapter 11, infra,
discusses forum selection clauses in these and other contracts, while Chapter 12 discusses
insurance contracts.
2.Employment Contracts
A frequently litigated category of employment contract cases involves noncompete covenants restricting the freedom of employees to work for a competing employer after the end
of the employment relationship.415 Some states prohibit these covenants, some impose partial
413. U.C.C. 1-301(a) (2015).

414. For discussion of the proposed revision, see E. Scoles, P. Hay, P. Borchers & S. Symeonides, Conflict
of Laws 98387 (4th ed. 2004); J. Graves, Party Autonomy in Choice of Commercial Law:The Failure of
Revised U.C.C. 1-301 and a Proposal for Broader Reform, 36 Seton Hall L.Rev. 59 (2005).
415.For discussion of such covenants from the choice-of-law perspective, see G. Lester & E. Ryan,
Choice of Law and Employee Restrictive Covenants: An American Perspective, 31 Comp. Lab. L. &
Poly J. 389 (2010). See also D.A. Linehana, Due Process Denied:The Forgotten Constitutional Limits on
416
restrictions, and other states allow them. When the state of the employment relationship
(which is usually the employees home-state) prohibits such covenants, most courts refuse to
enforce the covenant, even if the employment contract contains a choice of another states law,
which would uphold the covenant. Cases so holding are too numerous to count.416
Brown & Brown, Inc. v. Johnson417 is a good example of this tendency, because the conflict between the policies of the two involved states was as sharp as that between red and
blue states. ANewYork employment contract between a Florida employer and a NewYork
employee contained a Florida choice-of-law clause and three noncompete covenants. Under
New York law, the covenants were invalid as unduly harsh on the employee. By contrast, a
Florida statute expressly prohibited courts from considering the hardship that a restrictive covenant may impose on the employee. Moreover, the statute provided that courts must construe a
covenant in favor of protecting the employers interests, and may not use any rules of contract
interpretation that would require the construction of a restrictive covenant narrowly or against
the restraint or drafter.418 The NewYork of Appeals easily concluded that the Florida statute
was truly obnoxious and held unenforceable the choice-of-law clause and the covenants:
Considering Floridas nearly-exclusive focus on the employers interests, prohibition against narrowly construing restrictive covenants, and refusal to consider the harm to the employeein
contrast with NewYorks requirements that courts strictly construe restrictive covenants and balance the interests of the employer, employee and general publicdefendants met their heavy
Choice of Law in the Enforcement of Employee Covenants Not to Compete, 2012 Utah L.Rev. 209 (2012);
W.S. Lazar, Employment Agreements and Cross Border EmploymentConfidentiality, Trade Secret, and
Other Restrictive Covenants in a Global Economy, 24 Lab. Law. 195 (2008).
416. In addition to the cases discussed in the text, an illustrative list would include:Dresser Indus., Inc.
v.Sandvick, 732 F.2d 783 (10th Cir.1984); Nordson Corp. v.Plasschaert, 674 F.2d 1371 (11th Cir.1982);
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Stidham, 658 F.2d 1098 (5th Cir. 1981); DCS Sanitation
Mgmt., Inc. v.Casillo, 435 F.3d 892 (8th Cir. 2006), rehg and rehg en banc denied, cert. denied, ___ U.S.
___, 127 S. Ct. 193 (2006); Blalock v. Perfect Subscription Co., 458 F. Supp. 123 (S.D. Ala. 1978), aff d
599 F.2d 743 (5th Cir. 1979); Fine v.Prop. Damage Appraisers, Inc., 393 F.Supp.1304 (E.D. La. 1975);
Boyer v.Piper, Jaffray & Hopwood, Inc., 391 F.Supp.471 (D.S.D. 1975); Forney Indus., Inc. v.Andre, 246
F.Supp.333 (D.N.D. 1965); Koenig v.CBIZ Benefits & Ins. Servs., Inc., 2006 WL 680887 (D. Neb. Mar.
10, 2006); Davis v. Siemens Med. Solutions USA, Inc., 399 F. Supp. 2d 785 (W.D. Ky. 2005); Stonhard,
Inc. v.Carolina Flooring Specialists, Inc., 621 S.E.2d 352 (S.C. 2005), rehg denied (Nov. 17, 2005); Nasco,
Inc. v. Gimbert, 238 S.E.2d 368 (Ga. 1977); DeSantis v. Wackenhut Corp., 793 S.W.2d 670 (Tex. 1990),
cert. denied, 498 U.S. 1048 (1991); Bell v.Rimkus Consulting Group, Inc. of La., 983 So. 2d 927 (La. Ct.
App.2008), writ denied, 983 So. 2d 1276 (La. 2008); Brown & Brown, Inc. v.Mudron, 887 N.E.2d 437 (Ill.
App. Ct. 2008); Price & Price Mech. of N.C., Inc. v.Miken Corp., 661 S.E.2d 775 (N.C. Ct. App.2008);
Dill v.Contl Car Club, Inc., 2013 WL 5874713 (Tenn. Ct. App. Oct. 31, 2013). For other cases refusing
to honor choice-of-law clauses when the chosen law would deprive the employee of protection accorded
by a state that has a closer connection and greater interest in applying its law, see, e.g., Ruiz v.Affinity
Logistics Corp., 667 F.3d 1318 (9th Cir. 2012); Softpath Sys., Inc. v.Bus. Intelligence Solutions, Inc., 2013
WL 68717 (N.J. Super. Ct. App. Div. Jan. 8, 2013). For a case enforcing the choice-of-law clause (against
the wishes of the employer who drafted the clause) and protecting the employee under the chosen law, see
Taylor v.E. Connection Operating, Inc. 988 N.E.2d 408 (Mass.2013).
417. 34 N.E.3d 357 (N.Y.2015).
418. Id. at361.
Contracts
417
burden of proving that application of Florida law would be offensive to a fundamental public
policy of this State.419
Exxon Mobil Corp. v.Drennen420 offers a contrasting example, perhaps because it involved
a highly paid employee. The employee was a Texas resident who worked for 30 years for
Exxon, a corporation headquartered in Texas. The employment contract contained a NewYork
choice-of-law clause and a forfeiture provision stipulating that the employee would forfeit certain deferred executive bonus awards and stock options if he accepted employment with a
competing employer. This provision was enforceable under NewYork law. However, following
Section 187 of the Restatement (Second) and DeSantis v.Wackenhut Corp.,421 the Texas Court
of Appeals found that the forfeiture provision was an unreasonable noncompete covenant and
held it unenforceable as against Texass public policy.
The Texas Supreme Court reversed. First, the court found that although NewYork lacked
a substantial relationship with the contract, a reasonable basis existed for the choice
because: (1) New York had a well-developed body of law regarding employee stock incentive programs and securities-related transactions, and (2)the choice of NewYork law assured
a uniform treatment of Exxons employee incentive programs in all states. Uniformity is a
worthy goal and a logical rationale for choosing NewYork law and is a goal recognized in the
Restatement (Second) of Conflict of Laws, said the court.422
Second, the court found that Texas had a more significant relationship and a materially
greater interest than New York in applying its law. Nevertheless, the court concluded that
the application of NewYork law was not contrary to a fundamental public policy of Texas.
The court based this conclusion on two factors. The first was that the forfeiture provision did
not qualify as a noncompete covenant, which DeSantis had held unenforceable. Adistinction
exists, the court explained, between a noncompete covenant and a forfeiture provision in a
noncontributory profit-sharing plan because such plans do not restrict the employees right
to future employment.423 Such plans simply force the employee to choose between competing
with the former employer without restraint from the former employer and accepting benefits
of the retirement plan to which the employee contributed nothing.424
The second factor was that Texass policies had changed in the 24years since DeSantis:
With Texas now hosting many of the worlds largest corporations, our public policy has shifted
from a patriarchal one in which we valued uniform treatment of Texas employees . . . to one in
which we also value the ability of a company to maintain uniformity in its employment contracts
across all employees, whether the individual employees reside in Texas or NewYork.425

420. 452 S.W.3d 319 (Tex. 2014), rehg denied (Feb. 27,2015).
421. 793 S.W.2d 670 (Tex.1990).
422. Drennen, 452 S.W.3d at332.
423. Id. at329.
424. Id.
425. Id. at 32930 (footnote omitted).
418
Based on this reasoning, the court left for another day the question of whether the forfeiture provision was enforceable under Texas substantive law. Even if it were unenforceable, this
would not have changed the outcome because Texas law on this issue did not reflect a fundamental public policy:While application of Texas and NewYork law may reach different results
on the enforceability of [this provision] we cannot conclude that applying NewYork law in
such a determination is contrary to a fundamental policy of Texas.426
The more difficult cases are those in which the employee resigns from his employment in
his home-state and moves to another state to work for a competing employer there. If the first
employment contract contains a noncompete covenant that is enforceable under the law of
the first state but not the second, the result is a true conflict between the pro-employer law of
the first state and the pro-employee law of the second state. Achoice-of-law clause in the first
contract choosing the law of the first state makes the case more difficult, but, if litigation takes
place in the second state, the court will probably hold both the clause and the noncompete
covenant unenforceable.
One case presenting this scenario is Application Group, Inc. v.Hunter Group, Inc.,427 in which
the employee did not move her domicile to the second employment state. The employee was
a Maryland domiciliary who, after resigning from her job with a Maryland employer, began
working for a competing California employer from her home in Maryland (telecommuting).
In the ensuing litigation in California, the court held the noncompete clause in the Maryland
contract to be unenforceable in California, after finding that California metall three prongs of
Section 187(2) of the Restatement (Second). Specifically:(1)California law would be applicable
to this issue in the absence of the choice-of-law clause, (2)California had a materially greater
interest than Maryland in applying its law to this issue, and (3)enforcement of the noncompete
clause would be contrary to a fundamental policy of California.
The court noted that, although Maryland had all the contacts relevant to the employment
contract (which was not at issue), California had the contact that was most relevant to the
particular issuethe enforceability of the noncompete covenant in California. As to this issue,
the subject matter of the contract was the employees subsequent employment which was,
in this case, employment by a competitor who is located in California.428 To the extent that
the covenant purported to restrict competition in California, California had the most pertinent contact, which brought into play Californias interest in protecting competing California
employers and business opportunities in California.429 The court concluded that California
had a strong interest in protecting both the employee and the second (California) employer.
With regard to the employee, California had a strong interest in protecting the freedom of
426. Id. at 330 (footnote omitted). For other Texas cases enforcing choice-of-law clauses in employment
contracts, see Cameron Intern. Corp. v.Guillory, 445 S.W.3d 840 (Tex. App.2014) (enforcing choice-of-
law clause because Texas did not have a materially greater interest than the chosen state; thus, there was
no need to examine whether the chosen law violated Texass public policy); Ennis, Inc. v. Dunbrooke
Apparel Corp., 427 S.W.3d 527 (Tex. App.2014) (holding that appellee failed to show that, in the absence
of a choice-of-law clause, the contract would be governed by the law of a state other than the chosen state;
hence, the court did not have to examine the other requirements for upholding a choice-of-law clause
under Section 187(2) of the Restatement (Second)).
428. Id.at87.
429. Id.at88.
Contracts
419
movement of persons whom California-based employers wish to employ , regardless of

the persons state of residence.430 With regard to the second employer, California had a public
policy which ensures that California employers will be able to compete effectively for the most
talented, skilled employees in their industries, wherever they may reside.431 Thus, California
had an interest in protecting its employers and their employees from anti-competitive conduct
by out-of-state employers who would interfere with or restrict these freedoms.432
In Keener v.Convergys Corp.,433 Ohio was the first employers state and the employees first
domicile, while Georgia was the second employers state and the employees new domicile.
AGeorgia federal court refused to enforce the Ohio choice-of-law clause and noncompete covenant because the latter was contrary to the free-competition policy embodied in the Georgia
constitution. The court acknowledged that [t]his may wind up encouraging non-Georgia
employees to flee to Georgia to shed their [non-compete covenants].434 However, analogizing
to quickie divorces, the court said, [t]he aches and pains of federalism have long formed
part of the American legal fabric.435
These aches become even more serious when the case provokes litigation in both employment states. Manuel v. Convergys Corp.436 is a case on point. A contract between the same
Ohio employer involved in Keener and a Florida employee for work in Florida contained Ohio
choice-of-law clause and a noncompete covenant that was enforceable under Ohio law. After
working for four years for the Ohio employer, the employee moved to Georgia and began
working for a competing employer in Georgia, where the covenant would be unenforceable.
The Georgia employer sought a declaratory judgment in Georgia that the noncompete covenant was unenforceable there. Subsequently, the Ohio employer sued in Ohio seeking enforcement of the covenant, and also filed a motion in the Georgia proceeding requesting a stay until
resolution of the Ohio action. The Georgia federal district court denied the request for a stay
and granted plaintiff s motion for summary judgment on the merits. Relying on Keener, the
Eleventh Circuit affirmed. Regarding the request for a stay, the court invoked the first-filed rule,
430. Id.at85.
431. Id.
432. Id. This reading of California interests drew a sharp rebuke from a California judge who dissented
in a similar case in which the employee did move to California:Relocating to California is not a chance
to walk away from valid contractual obligations, claiming California policy as a protective shield. We are
not a political safe zone vis--vis our sister states, such that the mere act of setting foot on California soil
somehow releases a person from the legal duties our sister states recognize. Advanced Bionics Corp.
v. Medtronic, Inc., 59 P.3d 231 (Cal. 2002), Brown, J., dissenting. See also id. (speaking of Californias
political imperialism, absorbing every state into the California legal ethos.).
433. 205 F. Supp.2d 1374 (S.D.Ga. 2002).
434. Id. at1379.
435. Id. On appeal, the Eleventh Circuit Court of Appeals certified to the Georgia Supreme Court the
question of whether Georgia would follow Section 187(2) of the Restatement (Second) and whether, in
this case, Georgia would have a materially greater interest to apply its law. See Keener v.Convergys Corp.,
312 F.3d 1236 (11th Cir. 2002). The latter court reaffirmed its refusal to adopt the Restatement (Second),
as well as its refusal to enforce noncompete agreements. See Convergys Corp. v. Keener, 582 S.E.2d 84
(Ga. 2003). The Eleventh Circuit affirmed the District Court opinion. See Keener v.Convergys Corp., 342
F.3d 1264 (11th Cir.2003).
436. 430 F.3d 1132 (11th Cir.2005).
420
which provides that, in the absence of compelling circumstances, the court initially seized of
the controversy should be the one to decide the case. The court found that the Ohio employer
did not show compelling circumstances warranting an exception.
Estee Lauder Co., Inc. v.Batra437 presented the same issues, but reached the opposite result,
perhaps because it was decided in the first employers state, NewYork. The employee resided
and worked in California, although his responsibilities were worldwide. He quit to work for
a competing California employer and immediately sued in California, seeking a declaratory
judgment that the noncompete covenant contained in his first employment contract was void
under California law. Two days later, the first employer filed this action in NewYork, seeking
a preliminary injunction restraining the employee from breaching the covenant. The employee
cross-moved, asking the NewYork court to abstain under the Colorado River abstention doctrine.438 After examining the five Colorado River factors and considering the heavy presumption
favoring exercise of jurisdiction, the court concluded that the extraordinary circumstances
required for abstention by Colorado River [were] not present.439 The court denied the motion
for abstention and then discussed the NewYork choice-of-law clause in the employment contract. The court acknowledged that enforcement of the noncompete covenant under the chosen law of New York would violate a fundamental policy of California, but concluded that
California did not have a materially greater interest in applying its law than NewYork had in
applying its own law. The court pointed out that although the employee was domiciled and
worked in California, he reported to his employers principal place of business in NewYork,
and was directed and supervised from the employers office there. The court found that these
NewYork contacts were significant and concluded that [j]ust as California has a strong interest in protecting those employed in California, so too does NewYork have a strong interest in
protecting companies doing business here.440
In Advanced Bionics Corp. v. Medtronic, Inc.,441 a court in the second employment state,
California, resolved a similar conflict by deferring to the interests of the first employment state,
Minnesota. The first employer was a Minnesota corporation that hired a Minnesota domiciliary for work in Minnesota. The contract contained a Minnesota choice-of-law clause, as well
as a noncompete covenant valid under Minnesota law. The employee resigned from his job
437. 430 F.Supp.2d 158 (S.D.N.Y.2006).

438. See Colorado River Water Conservation Dist. v.United States, 424 U.S. 800 (1976).
439. Estee Lauder, 430 F.Supp.2d at169.
440. Id. at 173. The court continued with a modest statement from a NewYork case, in which the court
spokeof
NewYorks recognized interest in maintaining and fostering its undisputed status as the preeminent
commercial and financial nerve center of the Nation and the world. That interest naturally embraces
a very strong policy of assuring ready access to a forum for redress of injuries arising out of transactions spawned here. Indeed, access to a convenient forum which dispassionately administers a
known, stable, and commercially sophisticated body of law may be considered as much an attraction
to conducting business in NewYork as its unique financial and communications resources.
Id. (quoting Marine Midland Bank, N.A.v.United Mo. Bank, N.A., 643 N.Y.S.2d 528, 531 (N.Y.A.D.1st
Dept. 1996)).
441. 59P.3d 231 (Cal.2002).
Contracts
421
with the Minnesota employer and took another job with a competing California employer for
work in California. The latter employer filed an action for a declaratory judgment in California
to declare the noncompete covenant unenforceable in California. Meanwhile, the Minnesota
employer filed an action in Minnesota to enjoin the employee from violating the noncompete covenant. The lower courts in both states rendered conflicting judgments in favor of the
domestic employer442 before the California Supreme Court set aside the California judgment.
The latter court acknowledged that California had a strong interest in protecting the freedom
of new California domiciliaries to seek employment in California, and that a California court
might reasonably conclude that the Minnesota noncompete and choice-of-law clauses were
void in this state.443 However, the court specifically refused to base its decision regarding the
propriety of an anti-suit injunction on choice-of-law factors and instead based it on principles
of judicial restraint and comity.444
In recent years, employers began including in their employment contracts not only choice-
of-law clauses, but also forum selection clauses assigning exclusive jurisdiction to the courts of
a state that would enforce the noncompete covenants.445 In many cases this strategy has worked,
enabling employers to secure enforcement of the covenants under the chosen law.446 Swenson
v.T-Mobile USA, Inc.447 is on point. AWashington employer hired a California domiciliary as
its chief executive through an employment contract containing a noncompete covenant valid
under Washington law. The contract also contained Washington choice-of-law and forum selection clauses. The employee resigned her position with the Washington employer to work for a
competing California employer. The Washington employer sued the employee in Washington,
seeking to enforce the noncompete covenant, whereas the employee sued that employer in
California, seeking a declaratory judgment that the covenant was void under California law.
The Washington suit was the first to produce a judgment. The court, applying Washington law,
held the covenant enforceable and issued a temporary injunction against the employee.
Meanwhile, in the California action, the employee argued that the Washington forum selection clause was nothing but a clever device by the Washington employer to escape California
law and public policy because courts apply their own law in virtually every case,448 and thus
it was unlikely that the Washington court would seriously consider the possibility of applying California law. The California court acknowledged that the application of Washington law
would be contrary to a California statute prohibiting noncompete covenants, but noted that the
Washington court could have applied California law if it found application appropriate.449 In
442. See Advanced Bionics Corp. v.Medtronic, Inc., 105 Cal. Rptr. 2d 265 (Cal. Ct. App.2001); Medtronic,
Inc. v.Advanced Bionics Corp., 630 N.W.2d 438 (Minn. Ct. App.2001).
443. Advanced Bionics Corp., 59P.3d at237.
444. See id. (noting that these principles required that we exercise our power to enjoin parties in a foreign court sparingly.).
445. Forum selection clauses are discussed in Chapter11,infra.
446. See, e.g., In re AutoNation, Inc., 228 S.W.3d 663 (Tex. 2007); Biosense Webster, Inc. v. Superior
Court, 37 Cal. Rptr. 3d 759, (Cal. Ct. App.2006), rev. denied (Apr. 19, 2006); Olinick v.BMG Entmt, 42
Cal. Rptr. 3d 268 (Cal. Ct. App.2006), rev. denied (Aug. 16,2006).
447. 415 F.Supp.2d 1101 (S.D. Cal.2006).
448. Id. at1104.
422
any event, the California court concluded, the issue was not the choice-of-law clause, but rather
the forum selection clause, that is, whether enforcement of the latter clause would violate the
policy of [California] as to the forum for litigation of the dispute.450 The court answered the
question in the negative and dismissed the employees action.451
3. Consumer Contracts
Consumer contracts are often contracts of adhesion, and many tend to raise questions of
unconscionability. In some cases, such as McKee v. AT & T Corp.,452 courts accept the arguments and strike down the choice-of-law clause on that basis. McKee involved a telephone
service agreement between a NewYork-based telephone company and a Washington customer,
which contained a NewYork choice-of-law clause and an arbitration clause that covered all
disputes arising out of or related to the agreement, whether based in contract, tort, statute,
fraud, [or] misrepresentation.453 The agreement also prohibited class actions before courts or
arbitrators, as well as punitive damages and attorney fees for the consumer (though not for the
company). The Supreme Court of Washington held that the New York choice-of-law clause
was unenforceable and, applying Washington law, held the arbitration clause unenforceable as
substantively unconscionable.
The court found that, in the absence of the choice-of-law clause, Washington law would
have been applicable, and that the application of NewYork law would be contrary to a fundamental policy of Washington. NewYork allowed waivers of class actions, whereas Washington
had a declared strong public policy in support of the use of class action claims to pursue actions for small-dollar damage claims under the Washington State Consumer Protection
Act.454 Indeed, in a previous case, the same court had held that a forum selection clause that
seriously impairs the plaintiff s ability to go forward on a claim of small value by eliminating
class suits in circumstances where there is no feasible alternative for seeking relief violates
public policy and is unenforceable.455 The McKee court also found that Washingtons interest
in protecting large classes of its consumers was materially greater than NewYorks interest in
protecting a multistate telephone company.
In many other cases decided before the U.S. Supreme Courts decision in AT&T Mobility
LLC v.Concepcion,456 state courts refused to honor, as contrary to public policy, choice-of-law
clauses choosing a law that enforced class action or class arbitration waivers in consumer contracts.457 However, after Concepcion, the precedential value of these cases became doubtful, at
451.For other cases involving conflicting lawsuits in both employment states, see, e.g., Aon Risk
Servs. v. Cusack, 102 A.D.3d 461, 958 N.Y.S.2d 114 (N.Y. App. Div. 2013); Ethicon Endo-Surgery, Inc.
v.Pemberton, 350 2010 WL 5071848, No. 10-3973-B (Mass. Super. Oct. 27, 2010); B.Troisi v.Cannon
Equip. Co., 2010 WL 2061989 (Cal. Ct. App. May 25, 2010)(unpublished/noncitable).
452. 191P.3d 845 (Wash.2008).
453. Id.at865
454. Id.at852
455. Dix v.ICT Group, Inc., 160 Wash. 2d 826, 837, 161P.3d 1016 (Wash.2007).
456. 131 S.Ct. 1740 (2011), discussed infra 46566.
457. See, e.g., Fiser v. Dell Comput. Corp., 188 P.3d 1215 (N.M. 2008); Hoffman v. Citibank (South
Dakota), N.A., 546 F.3d 1078 (9th Cir. 2008); Coady v. Cross Cnty. Bank, 729 N.W.2d 732 (Wis. Ct.
Contracts
423
least to the extent they involved class arbitration waivers, as opposed to class action waivers.
This is because, as explained later, federal law preempts state law in most matters relating to
arbitration, but not class litigation.458
In fact, some consumers continue to enjoy the benefits of class actions because of, rather
than despite, a choice-of-law clause. State ex rel. McKeage v.Cordonnier459 is a good example.
The defendant, a Missouri-based company, inserted Missouri choice-of-law-and-forum clauses
in its contracts with customers in several states. When the customers filed a class action against
the company in Missouri, the company tried to disavow the choice-of-law clauses in order to
defeat class certification with regard to customers from other states, arguing that those other
states had a fundamental policy that was contrary to Missouris policy. The Missouri Supreme
Court rejected the argument, inter alia, because the company did not identif[y]any state that
has a fundamental policy of denying its citizens [the] relief [sought in this case] in another
state.460 In Asset Acceptance L.L.C.v.Caszatt,461 the choice-of-law clause had the same effect.
Acredit card company inserted New Hampshire choice-of-law clauses in all of its agreements
with its cardholders from other states.462 These clauses enabled the cardholders to obtain a
class certification in Ohio against the credit card company charged with violations of New
Hampshire consumer protection laws.463 In Hall v.Sprint Spectrum L.P.,464 the defendant, a telephone service provider headquartered in Kansas, inserted Kansas choice-of-law clauses in all of
its contracts with consumers in 48 states. When the class action plaintiffs sued in Illinois under
the Kansas Consumer Protection Act, the defendant unsuccessfully attempted to extricate itself
App.2007), review denied, 737 N.W.2d 432 (Wis. 2007); Klussman v.Cross Country Bank, 36 Cal. Rptr. 3d
728 (Cal. Ct. App.2005); Aral v.Earthlink, Inc., 36 Cal. Rptr. 3d 229 (Cal. Ct. App.2005). For cases reaching the opposite result, see, e.g., Gay v.CreditInform, 511 F.3d 369 (3rd Cir. 2007); Jackson v.Pasadena
Receivables, Inc., 921 A.2d 799 (Md. 2007), reconsideration denied (June 6, 2007); Feeney v.Dell Inc., 908
N.E.2d 753 (Mass. 2009); DeFontes v.Dell, Inc., 984 A.2d 1061 (R.I. 2009). Some of these decisions have
been abrogated by subsequent rulings.
458. See infra 46268.
459. 357 S.W.3d 597 (Mo.2012).
460. Id. at601.
461. 2012 WL 1493884 (Ohio Ct. App., Apr. 30, 2012). In Carder Buick-Olds Co. v.Reynolds & Reynolds,
Inc., 775 N.E.2d 531 (Ohio Ct. App.2002), the court granted class certification because the contractual
claims would be governed by Maryland law under Maryland choice-of-law clauses, and the fraud claims
would be governed by the law of Ohio, which was the defendants home-state and place of conduct, and
which was not different form the laws of the other states.
462. The clauses provided:No matter where you live, this Agreement and your Credit Card Account are
governed by New Hampshire law. Id.at*1.
463.In Solotko v.LegalZoom.com, Inc., 2013 WL 3724770 (Tex. App. July 11, 2013), review denied (Dec.
13, 2013), the plaintiff did not succeed in obtaining a class certification in Texas against a credit card
company that used identical California choice-of-law clauses in all of its online contracts with customers
in all 50 states. Relying on Section 187(2) of the Restatement (Second), the court ruled that the plaintiffs
failed to carry the burden of demonstrating that the application of California law would not contravene a
fundamental public policy of other states that had a materially greater interest in applying their laws.
In Lewis Tree Service v.Lucent Technologies Inc., 211 F.R.D. 228 (S.D.N.Y. 2002), the court denied class
certification, after finding that the choice-of-law clauses in the sales contracts between the defendant and
the putative class members did not encompass the members fraud claims.
464. 876 N.E.2d 1036 (Ill. App. Ct. 2007), rehg denied (Aug. 8, 2007), appeal denied, 226 Ill. 2d 614 (Ill.,
2008), cert. denied, 555 U.S. 814 (2008).
424
from its own choice-of-law clauses, arguing inter alia that the Act did not apply extraterritorially.465 The court rejected the argument, reasoning that the question was not whether, based
on its own language, the Kansas Act applied, but rather whether choice-of-law clauses could
make it applicable. Relying on both Kansas and Illinois cases, the court answered the question
in the affirmative.466
In Doe 1 v.AOL LLC,467 the contracts between California consumers and America Online
(AOL), an Internet service provider, contained Virginia choice-of-law clauses and an exclusive forum selection clauses mandating litigation in the courts of Virginia. The latter clauses
amounted to cleverly disguised class action waivers because Virginia law did not allow class
actions. AOL argued that these clauses mandated litigation in Virginiathat is, in either state
or federal courts in Virginiaand thus did not preclude consumers from filing a class action
in federal court in Virginia. The Ninth Circuit rejected this argument and held the clauses
unenforceable, citing California precedents that held similar class action waivers in consumer
contracts to be unenforceable.
Many states have statutes that restrict party autonomy in certain consumer contracts (and
other contracts involving presumptively weak parties, such as employees or franchisees). These
statutes typically prohibit waiver of their consumer-protecting provisions. Because a clause
choosing another states law is the functional equivalent of such a waiver, courts typically hold
that such a clause is unenforceable if the law of the state that has the statute is otherwise applicable. In turn, such a conclusion becomes more likely when that state is also the forum state.
America Online, Inc. v.Superior Court,468 Credit Acceptance Corp. v.Chao Kong,469 and Capital
One Bank v.Fort470 involved such statutes.
In America Online, the forum state of California had such a statute. The contracts at issue
between AOL, an Internet service provider, and California consumers contained Virginia
choice-of-law and forum selection clauses. The consumers filed a class action against AOL
alleging violations of the California statute. Reasoning that enforcement of the clauses would
465. Hall, 876 N.E.2d at1040.
466. See id. at 1042 (The fact that Kansas law might not otherwise apply is irrelevant because the parties expressly agreed that Kansas law would apply. Despite the legislative intent and the clear language of
the [Act], parties can bind themselves to the provisions of an otherwise inapplicable act by incorporating choice-of-law provisions in an enforceable contract. As long as application of a statute or act is not
contrary to public policy, a court will uphold application of an otherwise inapplicable statute or act.)
(internal quotation marks omitted). In contrast, in Schnall v.AT&T Wireless Services, Inc., 259P.3d 129
(Wash. 2011), another consumer-protection class action filed against a telephone service provider, the
contracts in question contained choice-of-law clauses referring to the laws of each consumers domicile.
The Washington court found these clauses enforceable and refused to grant class certification because the
multiplicity of applicable laws would render the class unmanageable. In Decesare v. Lincoln Benefit Life
Co., 852 A.2d 474 (R.I. 2004), which involved contracts between a Nebraska company and consumers
from several states, the choice-of-law clauses were ineffective. The court held that Nebraska law governed
the claims of all class plaintiffs (and thus the class was certifiable) because the defendant had taken the
position that no contract was binding until approved by defendant at its home office in Nebraska, thus
making Nebraska the place of the so-called last event.
467. 552 F.3d 1077 (9th Cir.2009).
469. 822 N.W.2d 506 (Wis. Ct. App.2012).
470. 255P.3d 508 (Or. Ct. App.2011).
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425
be the functional equivalent of a contractual waiver of the consumer protection provisions of

the California statute, the court held the clauses unenforceable.
In Credit Acceptance, a Wisconsin court refused to enforce a Minnesota choice-of-law clause
in a retail installment contract between a Minnesota car dealer and a Wisconsin car buyer. The
contract defined default as the failure to make any payment by the due date, and allowed the
seller to accelerate payment and repossess the car after written notice. Under Wisconsin law, a
default occurred when an amount greater than one full installment remains unpaid for more
than 10days from the due date. When the buyer missed a payment, the sellers assignee repossessed the car in Wisconsin before the expiration of the 10-day period, and then sued the buyer
in Wisconsin for a deficiency judgment. The buyer counterclaimed seeking damages under the
Wisconsin Consumer Act (WCA). The court affirmed the award of damages under the WCA,
after holding unenforceable the Minnesota choice-of-law clause because the WCA declares
certain pertinent portions of it applicable to actions or other proceedings brought in this state
to enforce rights arising from consumer transactions wherever made.471
In Capital One, a credit card contract between an Oregon consumer and a Virginia bank
contained a Virginia choice-of-law clause and a clause providing that the consumer would be
responsible for the banks attorney fees [t]o the extent permitted by law.472 The bank sued the
consumer in Oregon for overdue payments but lost under Virginias statute of limitations. The
consumer counterclaimed for attorney fees under an Oregon statute. The statute provided that,
when a contract provides for attorney fees for only one party and the other party prevails in an
action to enforce the contract, the prevailing party shall be entitled to attorney fees. The statute also prohibited waiver of its provisions. The court held that the consumer was entitled to
attorney fees because:(1)Oregon law would have been applicable in the absence of the choice-
of-law Virginia clause, (2)the above statute embodied a fundamental public policy of Oregon,
and (3)Oregon had a materially greater interest in applying its law than Virginia.473
Stone Street Services, Inc. v.Daniels474 is a refreshing example of a case that voided a choice-
of-law clause choosing the law of the forum state, Pennsylvania, because of the non-waiver
statute of another state, Kansas. The Kansas statute prohibited a party from tak[ing] advantage
of the inability of the consumer reasonably to protect the consumers interests because of
physical infirmity, ignorance, illiteracy, inability to understand the language of the agreement
or similar factor.475 The statute also prohibited waiver of its provisions. This case arose out of an
annuity agreement that a Pennsylvania corporation sold to a Kansas domiciliary who had suffered mental injury as a result of an accident. The annuity contained a Pennsylvania choice-of-
law clause. Following Section 187 of the Restatement (Second), the court noted that although
Pennsylvania had sufficient contacts to initially sustain the clause, Pennsylvania law should not
471. Credit Acceptance, 822 N.W.2d at 508 (quoting theWCA).

472. Capital One, 255P.3d at510.
473. For another bank loan case, see Brack v.Omni Loan Co., Ltd., 80 Cal. Rptr. 3d 275 (Cal. Ct. App.4th
Dist. 2008), review denied (Oct. 16, 2008)(holding unenforceable a Nevada choice-of-law clause in a contract between a Nevada lender and a California borrower because Nevada law contravened a fundamental
policy embodied in Californias Finance Lenders Law, and California had a materially greater interest
than Nevada in applying itslaw).
474. 2000 WL 1909373 (E.D. Pa.2000).
475. Id. at * 3 (quoting Kan. Stat. Ann. 50-627(b)(1)) (2015).
426
be applied because:(1)Kansas law would have applied in the absence of the clause, (2)Kansas
had a materially greater interest in applying its law, and (3)the application of Pennsylvania law,
which was less protective of the consumer, would violate Kansass fundamental policy embodied in the above statute.
If the above cases leave the impression that American courts bend over backward to protect
consumers, cases such as Carroll v. MBNA America Bank476 should dispel that impression. It
may not be a coincidence that the courts reasoning left much to be desired. The Idaho Supreme
Court felt no obligation to obey an Idaho statute that expressly and unequivocally prohibited
non-Idaho choice-of-law-or-forum clauses in consumer contracts involving Idaho consumers
acting in Idaho. In this case, the contracts between a Delaware bank and two Idaho consumers
contained Delaware choice-of-law clauses. When the consumers challenged the validity of those
clauses, the Idaho Supreme Court had to admit that under the aforementioned Idaho statute,
the clauses would be unenforceable as contrary to express statutory law and public policy in
Idaho.477 Nevertheless, the court opined that the fact that an Idaho statute prohibited contracting parties from choosing Delaware law did not mean that the statute prevented Idaho courts
from choosing that law. The court concluded that Delaware law applied under Section 188 of the
Restatement (Second) because Delaware had a more significant relationship than Idaho, because
the bank was based in Delaware and the formulation of the terms and conditions of the agreements took place in Delaware under the assumption that they would be governed by Delaware
law.478 Closing the circle, the court concluded that the policies of Section 6 of the Restatement
favored the application of Delaware law because the parties originally attempted to form the
agreements under Delaware law, as indicated by the inclusion of the choice-of-law clauses,479
notwithstanding the fact that those clauses were unenforceable in Idaho. Undaunted, the court
then examined the enforceability of arbitration clauses unilaterally inserted in the credit card
agreements by amendments mailed to the Idaho consumers long after the agreements were
made. Applying Delaware law, which allowed such unilateral amendments, the court upheld
enforcement of the clauses without either (1)explaining whether Idaho law allowed unilateral
amendments, or (2)considering the Idaho statute prohibiting non-Idaho forum selection clauses.
4.Franchise or Distributorship Contracts

Franchise and distributorship contracts are arguably adhesionary,480 but the Restatement
(Second) takes the position that the adhesionary nature of a contract by itself does not defeat the
choice-of-law clause, unless the application of the chosen law would result in substantial injustice.481 Many statutes regulating franchises or distributorships restrict party autonomy in the
interest of protecting the presumed weak partythe franchisee or distributor. Typically, these
statutes prohibit waivers of franchisee protections, either directly or through the contractual
476. 220P.3d 1080 (Idaho2009).
477. Id. at1085.
478. Id. at1086.
479. Id.
480. The Restatement (Second) considers adhesionary those contracts that are drafted unilaterally by
the dominant party and then presented on a take-it-or-leave-it basis to the weaker party who has no real
opportunity to bargain about its terms. Restatement (Second) 187, cmt.b.
481. Id.
Contracts
427
choice of another states law. Most of these statutes limit their geographical scope to franchises
or distributorships operating within the enacting state, or to franchisees or distributors domiciled there. Thus, when a contract purports to opt out of such a statute through a choice-of-law
clause, and litigation takes place in the enacting state, the only question for the court to answer
is whether the contract falls within the statutes reach. If it does, the court will apply the statute,
notwithstanding a contrary choice-of-law clause. Many cases have so held.482
In one of those cases, Stawski Distributing Co., Inc. v. Browary Zywiec S.A.,483 the forum
state of Illinois had enacted such a statute, the Illinois Beer Industry Fair Dealing Act, which
prohibited the choice of another states law in contracts involving Illinois beer distributors.
Acontract between one such distributor and a Polish brewer mandated arbitration in Poland
under Polish law. The lower court struck down the arbitration clause, but the Seventh Circuit
reversed that holding as contrary to the Federal Arbitration Act (FAA).484 However, the court
had to acknowledge that, with regard to the choice-of-law clause, no federal law preempted the
Illinois Act, and thus the district court was correct to strike down the choice-of-law clause for
violation of that Act. This meant that, although Illinois could require the application of its own
law to this dispute, Illinois could not prevent the arbitration of this dispute in another country,
even though there was no guarantee that the foreign arbitrators would apply Illinois law. The
court noted that the Supreme Court faced similar dilemmas in both Mitsubishi Motors Corp.
v.Soler Chrysler-Plymouth, Inc.485 and Scherk v.Alberto-Culver Co.,486 but decided that the risk
of non-application of American law did not justify refusing to honor an otherwise valid international arbitration clause. This case proceeded with arbitration in Poland, and the arbitrator
ruled for the Polish brewer under both Polish and Illinois law. The distributor challenged the
award for erroneous application of Illinois law. The Seventh Circuit dismissed the challenge,
observing that an error in the application of substantive law does not authorize a court to
annul the outcome of arbitration.487
In Instructional Systems, Inc. v.Computer Curriculum Corp.,488 the franchise statute of the
forum state of New Jersey did not expressly prohibit waiver of its provisions or the choice of
another states law. Nevertheless, the Supreme Court of New Jersey struck down a California
482. See S. Symeonides, Choice of Law in the American Courts in 1994:AView from the Trenches, 43
Am. J. Comp. L. 1, 6163 (1994). For later cases, see, e.g., Stawski Distrib. Co., Inc. v. Browary Zywiec
S.A., 349 F.3d 1023 (7th Cir. 2003), cert. denied, 541 U.S. 1010 (2004); Ferguson-Kubly Indus. Servs., Inc.
v.Circle Envtl., Inc., 409 F.Supp.2d 1072 (E.D. Wis. 2006); Am. Express Fin. Advisors, Inc. v.Yantis, 358
F.Supp.2d 818 (N.D. Iowa 2005); Three M Enters., Inc. v.Texas D.A.R. Enters., Inc., 368 F.Supp.2d 450
(D. Md. 2005); Klosterman v.Choice Hotels Intl, Inc., 2005 WL 1177947 (D. Idaho, May 18, 2005); Power
& Tele. Supply Co., Inc. v.Harmonic, Inc., 268 F.Supp.2d 981 (W.D. Tenn. 2003); Beatty Caribbean, Inc.
v.Viskase Sales Corp., 241 F.Supp.2d 123 (D.P.R. 2003); Healy v.Carlson Travel Network Assocs., Inc.,
227 F.Supp.2d 1080 (D. Minn. 2002); Chong v.Friedman, 2005 WL 2083049 (Cal. Ct. App.2005).
483. 349 F.3d 1023 (7th Cir. 2003), rehg denied (Dec. 11, 2003), cert. denied, 541 U.S. 1010 (2004) (decided
under Illinois conflictslaw).
484. The FAA is discussed in Chapter11,infra.
485. 473 U.S. 614 (1985) (discussed at 47475, infra).
486. 417 U.S. 506 (1974) (discussed at 461, infra).
487. Stawski Distrib. Co. v. Browary Zywiec S.A., 126 Fed. Appx. 308, 309 (7th Cir. 2005). The court
noted that the FAA allowed a challenge for violation of Illinois public policy, but the Illinois distributor
did not press that challenge on appeal. Seeid.
488. 614 A.2d 124 (N.J.1992).
428
choice-of-law clause as contrary to the strong public policy embodied in the statute. The clause
was part of a contract between a California franchisor and a New Jersey franchisee, and the
dispute centered on the franchisors premature termination of part of a regional franchise in
states other than New Jersey. The court noted that although the New Jersey Franchise Act did
not contain an anti-waiver provision, it was a common assumption that the Acts protection
may not be waived.489 Further, the court reasoned, most courts have held that the parties
to a franchise agreement cannot avoid the franchise law of the state in which the franchisee
is located by providing in their agreement that the laws of another state will govern.490 The
court rejected the franchisors argument that this case did not implicate New Jerseys interests because the termination did not affect the New Jersey part of the regional franchise. The
court reasoned that the purpose behind franchise-act legislation is that dealers geographically
situated in a forum state are to be the desired beneficiaries of the legislation in order to make
their bargaining position more equal to manufacturers.491 The court expressed its readiness to
reject even the parties choice of New Jersey local law in order to preserve the fundamental
public policy of the franchisees home state where its statutes afford greater protection.492
Caribbean Wholesales & Service Corp. v.US JVC Corp.493 is one of many cases illustrating
the interdependence of choice-of-law and forum-selection clauses. Awell-drafted and effective
forum selection clause can prevent litigation in a state that does not favor the particular choice-
of-law clause.494 This is particularly true when a statute expressly prohibits the contractual
choice of another states law for certain transactions, such as franchises, and other highly regulated contracts that have certain enumerated contacts with the enacting state. Unless the statute
also prohibits the contractual choice of a forum outside that state, a forum selection clause
can become the vehicle for circumventing the statutes prohibition of choice-of-law clauses.
In Caribbean Wholesales a contract between a Puerto Rico distributor and a foreign manufacturer contained New York choice-of-law and forum-selection clauses. The court held that
both clauses were unenforceable because they violated Puerto Ricos Dealers Contracts Act,
which provided that [a]ny stipulation that obligates a dealer to litigate any controversy
regarding this dealers contract outside of Puerto Rico, or under a foreign law shall be
null and void.495 Following Puerto Ricos significant contacts approach for contracts conflicts,
but also referring to Puerto Ricos governmental interest in regulating the contractual relations
489. Id. at134.
492. Id. (internal quotation marks omitted). For other similar cases reaching the same result, see Wright-
Moore Corp. v. Ricoh Corp., 908 F.2d 128 (7th Cir. 1990); Bridge Fund Capital Corp. v. Fastbucks
Franchise Corp., 622 F.3d 996 (9th Cir. 2010); Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801
(7th Cir. 2011); Henson v.GTE Prods. Corp., 34 F.3d 1066 (Table) (4th Cir. 1994); Three M Enters., Inc.
v.Texas D.A.R. Enters., Inc., 368 F.Supp.2d 450 (D. Md.2005).
493. 855 F.Supp.627 (S.D.N.Y. 1994)(decided under Puerto Rico conflictslaw).
494. Arbitration clauses are even more effective because the preemptive effect of the Federal Arbitration
Act (FAA) prevents states from discriminating against such clauses. See infra Chapter 11. For cases striking down a choice-of-law and arbitration clauses for circumventing the protections of a state franchise
statute, see Bridge Fund Capital Corp. v.Fastbucks Franchise Corp., 622 F.3d 996 (9th Cir. 2010); Ticknor
v.Choice Hotels Intl, Inc., 265 F.3d 931 (9th Cir.2001).
495. Caribbean Wholesales, 855 F.Supp. at 63233 (quoting P.R. Laws Ann. tit. 10, 278b-2()).
Contracts
429
of local distributors,496 the court concluded that Puerto Rico law was applicable and that the
Dealers Act was intended to be a mandatory scheme regulating the contractual relations of all
parties distributing goods in Puerto Rico.497
In Maher and Associates, Inc. v.Quality Cabinets,498 an Illinois statute (the Sales Act) that
prohibited waiver of its distributor-protecting provisions was the basis for invalidating a Texas
choice-of-law and forum selection clause in a contract between an Illinois distributor and a
Texas manufacturer. The Illinois court had little trouble holding the forum selection clause
unenforceable as contrary to the Sales Act. With regard to the choice-of-law clause, however,
the court paused. The court had no doubt that the Illinoiss Sales Act embodied a fundamental
policy of Illinois, and that the application of Texas law would violate that policy. Nevertheless,
the court thought that Illinois did not have a materially greater interest,499 as required by
the second prong of Restatement (Second) Section 187(2) for holding a choice-of-law clause
unenforceable. Eventually, however, the court realized that the analysis contained in the
Restatement is a guide for courts; it is not black-letter law to be upheld against all other considerations.500 In fact, the court should have cited Section 6 of the Restatement, which instructs
the court first to follow a statutory directive of its own state on choice of law501 and only in the
absence of such a directive to look to the Restatement. In any event, the court correctly decided
not to follow the Restatement test rigidly, because:
If we were to use the Restatement formulation to insist that Texas law be applied to this matter,
we would thwart the strong public policy of protecting sales representatives in Illinois, because
Texas has no law which provides the strongest protection offered by the Sales Act:the threat of
treble damages for the failure to pay sales commissions in a timely fashion. Therefore, we decline
to use the Restatement rigidly and conclude that the choice-of-law clause in the agreement is
void. We will apply Illinois law in this matter.502
When litigation occurs in the franchisors state, the courts of that state tend to be less deferential to the protective statutes of the franchisees state and more receptive to a contractual choice of the forums law.503 Modern Computer Systems v. Modern Banking Systems504 is
496. Id. at633.
497. Id. at634.
498. 640 N.E.2d 1000 (Ill. App. Ct. 1994), appeal denied, 159 Ill. 2d 569 (Ill.1995).
499. 640 N.E.2d at 1006. The reason for this conclusion:[defendant] is incorporated in Texas and has its
primary place of business there. The agreement in this matter was designated a Texas contract. [Plaintiff],
though maintaining its primary place of business in Illinois, is incorporated in Minnesota, and its work
for [defendant] involves fours states other than Illinois.Id.
500. Id.
502. Maher, 640 N.E.2d at1006.
503. See, e.g., JRT, Inc. v. TCBY Sys., Inc., 52 F.3d 734 (8th Cir. 1995) (decided under Arkansas conflicts law; franchise agreement for a Michigan franchise; contractual choice of Arkansas law upheld
because Michigan anti-waiver statute did not specifically target choice of law provisions, and even if
Michigan has the greatest interest, no fundamental Michigan policy is at stake. Id. at 739). But see
Red Lion Hotels Franchising, Inc. v.MAK, LLC, 663 F.3d 1080 (9th Cir.2011).
504. 871 F.2d 734 (8th Cir. 1989)(decided under Nebraska conflictslaw).
430
representative of these cases. In a contract for a Minnesota franchise, the Minnesota franchisee
and the Nebraska franchisor had chosen the law of Nebraska, which did not have a franchisee-
protecting statute. In contrast, Minnesota had a non-waivable statute that accorded Minnesota
franchisees more protection than traditional common law, although the statute did not specifically prohibit the choice of another states law. Assisted by Minnesotas Attorney General
as amicus curiae, the plaintiff franchisee sued in Nebraska, arguing that the application of
Nebraska common law would frustrate the fundamental policies embodied in the Minnesota
Franchise Act. The court rejected the argument and upheld the parties choice of Nebraska law.
Noting that this was not an adhesion contract and that the territorial and personal contacts
were divided almost evenly between the two states, the court held that the choice of the law of
either state would be reasonable, and that Minnesotas policies were not sufficiently strong to
override such a choice. Shortly thereafter, Minnesota amended its Franchise Act to expressly
prohibit waiver of its provisions through any condition, stipulation or provision, including any
choice of law provision.505
Many franchise statutes contain language that either expressly or by implication makes
them applicable to franchises situated in the enacting state or franchisees domiciled there.
Several cases involved the question of whether a choice-of-law clause can make these statutes
applicable to a franchise that lacks these connections. In Cromeens, Holloman, Sibert, Inc. v.AB
Volvo,506 a contract involving non-Illinois franchises contained an Illinois choice-of-law clause,
but the Illinois Franchise Disclosure Act (IFDA) provided that it applied only to franchises
located in Illinois. The court held that the clause did not include the IFDA because:
[t]he plain language of the [Act] . . . excludes [foreign] dealers from its coverage because they
are located outside of Illinois. . . . If they insist . . . that Illinois law applies, then we must look to
the law of Illinois to determine the scope of application. The IFDA limits its scope to franchises
located within the state, and the [franchisees] may not claim its protections.507
In Gravquick A/S v. Trimble Navigation Intl. Ltd.,508 the forum state of California had a
similar Act, the California Equipment Dealers Act (CEDA), which, however, was not expressly
confined to California dealers. A contract between a California manufacturer and a Danish
dealer contained a California choice-of-law clause. The manufacturer terminated the dealership in circumstances allowed by the contract, but not by CEDA. The court applied CEDA
and held for the distributor. The court acknowledged that the California legislature enacted
CEDA primarily for the protection of California dealers. However, the court concluded that the
fact that CEDA was not expressly confined to California dealers, combined with a California
choice-of-law clause, made CEDA applicable to this contract.509
505. Minn. Stat. 80C.21 (1989) (emphasis added).

506. 349 F.3d 376 (7th Cir.2003).
507. Id. at386.
508. 323 F.3d 1219 (9th Cir.2003).
509. For a similar case reaching the opposite result, see Fred Briggs Distr. Co., Inc. v.Cal. Cooler, Inc., 2
F.3d 1156 (Table) (9th Cir. 1993)(disregarding a contractual choice of California franchise law because
the case did not fall within the intended territorial reach of the California statute).
Contracts
431
In 1-800-Got Junk? LLC v.Superior Court,510 a contract between a Canadian franchisor and
a California franchisee contained a Washington choice-of-law clause. The franchisee sought
enforcement of the clause when he sued the franchisor for wrongful termination of the franchise, while the franchisor, who drafted the clause, sought to avoid it. The California court,
following Section 187 of the Restatement (Second), upheld the clause. The court found that,
although Washington did not have any relationship with the contract or the parties, there was
a reasonable basis for having this clause because a multi-state franchisor has an interest in
having its franchise agreements governed by a uniform body of law and Washington was near
the franchisors headquarters in Vancouver, British Columbia.511
However, the franchisor argued that the application of Washington law was contrary to
Californias public policy embodied in Californias franchise statute, which prohibited waiver of
its provisions. Indeed the statute provided that [a]ny provision purporting to bind any person to waive compliance with any provision of this law is contrary to public policy and void.512
The court rejected the argument. The court reasoned that this statute was intended for the
protection of franchisees and that, by choosing Washington law in their contract, the parties
did not waive compliance with the California statute because, as it happened, the Washington
franchise statute was more protective of the franchisee than the California statute.513 The court
also rejected as an irrelevancy the franchisors argument that the Washington statute could
not be applied extraterritorially to a California franchise. The court reasoned that [i]rrespective of whether [the Washington statute] contains territorial restrictions on its application,
the parties were free to agree that their franchise relations would be governed by Washington
substantive law and they did precisely that, by way of a valid choice of law clause.514
In Taylor v. 1-800-Got-Junk?, LLC,515 a case involving an Oregon franchise and the same
Canadian franchisor with the same Washington choice-of-law clause, the franchisor succeeded
in avoiding the clause. The Ninth Circuit noted that the Washington franchise statute applied
by its terms only to misrepresentations in connection with the offer, sale, or purchase of any
franchise in [Washington].516 The court concluded that [w]hen a law contains geographical limitations on its application courts will not apply it to parties falling outside those
limitations, even if the parties stipulate that the law should apply.517
There is an intuitive logic in saying, as the Ninth Circuit seemed to say, that the parties may
not choose a law that does not wish to be chosen. However, this seeming anomaly can be
explained away by recalling the differences between a choice-of-law clause and an incorporation
510. 116 Cal. Rptr. 3d 923 (Cal. Ct. App.2010), rehg denied (Nov. 5, 2010), review denied (Jan. 12,2011).
511. Id. at926.
512. Id. (quoting Cal. Bus. & Prof. Code 20010)(emphasis by the court).
513. Id. at 936. Specifically, on the contested issue, the California statute allowed 11 grounds for summary termination of the franchise by the franchisor, whereas the Washington statute allowed only four.
Accordingly, the court concluded, the public policy of [California] is not offended by a franchise agreement giving a franchisee superior protection from summary termination under the chosen law of another
state.Id.
514. Id. at937.
515. 387 Fed. Appx. 727 (9th Cir. 2010)(decided under Washington conflictslaw).
516. Id. at 729 (quoting Wash. Rev. Code 19.100.170).
517. Id.
432
clause. One difference is that a typical choice-of-law clause chooses a states law as it is at the
time (that is, with all its restrictions and limitations, such as the territorial limitation in the
Washington franchise statute), but also as that law may change in the future.518 In contrast,
an incorporation clause incorporates the chosen law (or parts of it, if the parties so agree)
and makes it part of the contract, as if the parties cut and pasted excerpts form that law or
from a treatise on contracts. If the clauses in the two Got Junk cases qualified as incorporation clauses rather than as choice-of-law clauses (a question that depends on contractual language and intent), then one could conclude that the parties incorporated the provisions of the
Washington statute but (at least implicitly) excluded its territorial limitations.
Both the case law519 and the Restatement (Second) recognize the difference between choice-
of-law clauses and incorporation clauses. A comment under Section 187 states that, because
most rules of contract law are designed to fill gaps in a contract which the parties could themselves have filled with express provisions, the parties may do so, either by spelling out in detail
the terms of the contract, or by incorporat[ing] into the contract by reference extrinsic material which may, among other things, be the provisions of some foreign law.520 This comment
accompanies Subsection 1 of Section 187, which provides that, for issues that the parties could
have resolved by an explicit provision in their agreement directed to that issue,521 the choice-
of-law clause (or the incorporation clause) is not subject to any geographical or substantive
limitations. However, even with regard to issues that the parties could not have resolved by
agreement, an incorporation clause is permissible provided it meets the geographical and substantive limitations that subsection 2 of Section 187 prescribes for choice-of-law clauses. This
was not a problem in either of the two Got Junk cases, because the disputed issue arguably fell
within the scope of subsection 1,522 rather than subsection 2 of Section 187 and, in any event,
the clause met the more demanding standards of subsection2.523
D.Conclusions
The above discussion illustrates some of the basic methodological and political differences
between the European and the American model. Politically, the European model officially
acknowledges the need to protect weak parties, and does so by enacting elaborate statutory
rules that expressly subordinate the principle of party autonomy to that need. These rules work
well in the case of consumers and employees, less well in the case of passengers and insureds,
and leave completely unprotected other weak parties, such as franchisees. Methodologically,
the system is front-loaded. It relies almost entirely on legislation and very little on the judiciary,
518.For a discussion of the issue of post-choice changes in the chosen law, see Hay, Borchers &
Symeonides, Conflict of Laws1133.
519. For discussion and citations, see id. at 108990.
520. Restatement (Second) 187, cmt.d.
522. The disputed issue was the permissible grounds of summary termination of a franchise by the franchisor. By choosing Washington law, the parties opted for a regime that was more protective of the franchisee and that was certainly within their contractual powers.
523. As the first Got Junk case held, the franchise state had no objection to its franchisees receiving more
protection under the chosenlaw.
Contracts
433
which has much less power than in a common law system. For this reason, courts cannot protect parties such as franchisees who fall between the cracks of the statutory scheme.
By contrast, U.S.law is generally more pro-business and antiregulatory.524 Its laissez-faire
philosophy militates against singling out any weak parties for protective treatment. Consequently,
its party autonomy rule is the same for all contracts and all parties. Methodologically, however,
the American model is backloaded. It relies on the wide-ranging power and keen inclination
of courts to intervene on a case-by-case basis to prevent or correct inequities. As the preceding
discussion illustrates, American courts discharge this task fairly well in the cases and for the
parties that come before them. However, many weak parties do not get that opportunity, and
those who do must fight hard for this protection.
In the final analysis, each system plays to its own strengths. The European strength is a rich
tradition in statutory rule crafting. It provides certainty, but not enough flexibility. It protects
some weak parties in all cases, and others less so or not at all. The American strength is the
strong tradition of judicial independence and creativity. It is not always a predictable system,
but it is flexible. It does not guarantee protection to any weak parties, but it does provide it in
the most egregious litigated cases. One can only hope that each system would be willing to try
some of the strengths of theother.
524. P.J. Borchers, Categorical Exceptions to Party Autonomy in Private International Law, 82 Tul. L.Rev.
1645, 1659 (2008).
eleven
Forum Selection Clauses

and Arbitration Clauses
I . I N T R ODUCT I ON
The previous chapter discussed the power of contracting parties to choose the substantive law
to govern their present or future dispute. This chapter turns to another expression of party
autonomy at the interstate or international level:the power to choose a judicial or an arbitral
forum. This chapter discusses forum selection clauses and arbitration clauses, but only from
the perspective of choice of law and related issues arising from the international or interstate
dimension of the contracts containing these clauses.
I I . F O R U M S E L ECT I ON CL A US ES
A.INTRODUCTION
A forum-selection, choice-of-forum, or choice-of-court clause is an expression of consent by
the contracting parties to the jurisdiction of the designated court.1 The consent may confer
1. From the vast literature on this subject, see, e.g., C. Wright, A. Miller & E. Cooper, Federal Practice &
Procedure 3803.13813 (4th ed. 2015); J. Beckham, Forum Selection Clauses in Clickwrap Agreements, 14
U. Balt. Intell. Prop. L.J. 151 (2006); K. Blair, A Judicial Solution to the Forum-Selection Clause Enforcement
Circuit Split:Giving Erie a Second Chance, 46 Ga. L.Rev. 799 (2012); J. Brittain, Foreign Forum Selection
Clauses in the Federal Courts: All in the Name of International Comity, 23 Hous. J. Intl L. 305 (2001); J.
Courson, Yavuz v.61 MM, Ltd.:ANew Federal StandardApplying Contracting Parties Choice of Law to
the Analysis of Forum Selection Agreements, 85 Denv. U. L. Rev. 597 (2008); K.M. Clermont, Governing
Law on Forum-Selection Agreements, 66 Hastings L.J. 643 (2015); P. Cross, Floating Forum Selection and
Choice of Law Clauses, 48 S. Tex. L. Rev. 125 (2006); K.M. Das, Forum-Selection Clauses in Consumer
Clickwrap and Browsewrap Agreements and the Reasonably Communicated Test, 77 Wash. L. Rev. 481
(2002); M. Davies, Forum Selection Clauses in Maritime Cases, 27 Tul. Mart. L.J. 367 (2003); M. Davies,
Forum Selection, Choice of Law and Mandatory Rules, Lloyds Mar. & Com. L.Q. 237 (2011); D.A. DeMott,
Forum-Selection Bylaws Refracted through an Agency Lens, 57 Ariz. L.Rev. 269 (2015); C. Drahozal & P.
Rutledge, Contract and Procedure, 94 Marq. L.Rev. 1103 (2011); R. Force, The Position in the United States
on Foreign Forum Selection and Arbitration Clauses, Forum Non Conveniens, and Antisuit Injunctions, 35
Tul. Mar. L.J. 249, 401 (2011); A. Gehringer, After Carnival Cruise and Sky Reefer:An Analysis of Forum
435
436
exclusive (derogation) or nonexclusive (prorogation) jurisdiction in the designated forum,

thus making the clause mandatory or permissive, respectively.2 In certain foreign countries, a
forum selection clause is presumed to confer exclusive jurisdiction. This is the case, for example, under the Brussels IRegulation3 (which is in force in 27 countries of the European Union),
the parallel Lugano Convention,4 and the Hague Choice of Court Convention,5 which the
Selection Clauses in Maritime and Aviation Transactions, 66 J. Air L.& Com. 633 (2001); M. Gould, The
Conflict between Forum-Selection Clauses and State Consumer Protection Laws:Why Illinois Got It Right in
Jane Doe v.Match. Commn, 90 Chi.-Kent L.Rev. 671 (2015); R. Holt, A Uniform System for the Enforceability
of Forum Selection Clauses in Federal Courts, 62 Vand. L.Rev. 1913 (2009); J. Hurley & C. Walker, Forum
Selection Clauses, 81 J. Transp. L.Logistics & Policy 295 (2014); T. Kastnef, How Bout Them Apples?:The
Power of Stories of Agreement in Consumer Contracts, 7 Drexel L.Rev. 67 (2014); R. McLemore, Forum-
Selection Clauses and Seaman Personal Injury:AModern Analytical Framework with International Emphasis,
25 Tul. Mar. L.J. 327 (2000); M. Moberly & C. Burr, Enforcing Forum Selection Clauses in State Court, 39
S.W. U.L. Rev. 265 (2009); L.S. Mullenix, Gaming the System:Protecting Consumers from Unconscionable
Contractual Forum-Selection and Arbitration Clauses, 66 Hastings L.J. 719 (2015); M. zdel, Presumptions
on the Law Governing the Incorporation of Forum Selection Clauses:Should the Putative Applicable Law
Lead the Way?, 4 J. Bus. L. 357 (2011); B.S. Shannon, Enforcing Forum-Selection Clauses, 66 Hastings L.J.
777 (2015); M. Sorensen, Enforcement of Forum-Selection Clauses in Federal Court after Atlantic Marine,
82 Fordham L. Rev. 2521 (2014); M. Wright, Enforcing Forum-Selection Clauses: An Examination of the
Current Disarray of Federal Forum-Selection Clause Jurisprudence and a Proposal for Judicial Reform, 44
Loy. L.A. L.Rev. 1625 (2011); J.W. Yackee, Choice of Law Considerations in the Validity & Enforcement of
International Forum Selection Agreements:Whose Law Applies?, 9 UCLA J.Intl L.& Foreign Aff. 43 (2004).
2. In a special category of forum selection clauses known as floating clauses or service of suit (SOS)
clauses, the parties express their consent at different times. Through these clauses, which are common
in some insurance contracts, the insurer agrees in advance to submit to the jurisdiction of a court to be
chosen by the insured, and also agrees that all disputes arising under the contract shall be determined in
accordance with the law and practice of such Court. Burlington N.R.R. Co. v.Allianz Underwriters Ins.
Co., 1994 WL 637011 at *2 (Del Super. Ct. 1994), appeal refused, 653 A.2d 304 (Del. Super. Ct. 1994). On
whether such clauses are genuine forum selection clauses, see Cannelton Indus., Inc. v.Aetna Cas. & Sur.
Co., 460 S.E.2d (W.Va. 1994); Price v.Brown Group, Inc., 619 N.Y.S.2d 414 (N.Y. App. Div. 1994), appeal
denied, 1995 WL 121748 (N.Y. App. Div. 1995). Another question raised by such clauses is whether they
qualify as choice-of-law clauses. The majority of cases that have considered this question have concluded
that these clauses are not choice-of-law clauses, or, if they are, then they encompass the whole law of the
forum state, including its conflicts law. See, e.g., Norfolk S.Corp. v.Cal. Union Ins. Co., 859 So. 2d 167 (La.
Ct. App.2003); Liggett Group Inc. v.Affiliated FM Ins. Co., 788 A.2d 134 (Del. Super. Ct. 2001); Burlington
N.R.R. Co. v.Allianz Underwriters Ins. Co., 1994 WL 637011 (Del. Super. Ct. 1994), appeal refused 653
A.2d 304 (Del. Super. Ct. 1994); North Am. Philips Corp. v.Aetna Cas. & Sur. Co., 1994 WL 555399 (Del.
Super. Ct. 1994); Carrier Corp. v.Home Ins. Co., 648 A.2d 665 (Conn. 1994); W.R. Grace & Co. v.Hartford
Accident & Indem. Co., 555 N.E.2d 214 (Mass. 1990); Chesapeake Utilities Corp. v.Am. Home Ass. Co.,
704 F.Supp.551 (D. Del. 1989); Singer v.Lexington Ins. Co., 658 F.Supp.341 (N.D.Tex.1986).
3. See Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December
2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial
Matters (Brussels Irecast) Art. 25(1) (Such jurisdiction shall be exclusive unless the parties have agreed
otherwise.).
4.See Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and
Commercial Matters of 30/10/2007, Art. 23 (Such jurisdiction shall be exclusive unless the parties have
agreed otherwise.). This convention is in force between the European Union, and Denmark, Iceland,
Norway, and Switzerland.
5. See Hague Convention on Choice of Court Agreements of 30 June 2005, Art. 3(b) (a choice of court
agreement shall be deemed to be exclusive unless the parties have expressly provided otherwise.).
Forum Selection Clauses and Arbitration Clauses
437
United States has signed but has not ratified. In contrast, there is no such presumption in the
United States. According to several cases, the American presumption is the oppositea forum
selection clause is considered permissive unless it contains language to the contrary.6 However,
these presumptions cannot help if the allegedly contrary language is itself ambiguous, usually
because of poor drafting. When that is the case, the question of whether the clause is exclusive
or permissive must be answered through judicial interpretation. As we shall see later, this is
the most common question of interpretation that American courts encounter. Other, less frequently occurring interpretation questions include whether the clause encompasses the claims
in question (such as pre-contract claims, or tort claims), or whether it can be invoked by, or
asserted against, a non-signatory.
Despite the intuitive appeal of the maxim qui eligit iudicem, eligit ius, a forum selection
clause without more does not entail a contractual choice of the chosen states law.7 The Supreme
Court did not preclude this possibility8 and, as discussed in Chapter 10, the Restatement
(Second), as well as many foreign systems, including Rome I, recognize an implied choice of
law.9 However, such a choice may not be based solely on a forum selection clause. It must derive
from additional indications, contacts, or circumstances, from the totality of which a court can
infer that the parties impliedly chose the law of the state whose courts the clause designates.10
Obviously, the parties rights and duties differ, depending on whether the forum selection clause is exclusive or nonexclusive. For example, only an exclusive clause has the effect of
preventing a party from suing in a court other than the one the clause designates, even if that
court is otherwise competent. In contrast, both an exclusive and a nonexclusive clause have the
effect of depriving the defendant of in personam jurisdictional objections that the defendant
could raise in the absence of the clause.
This convention has been ratified by the European Union and Mexico, and signed but not ratified by the
United States and Singapore. On June 11, 2015, it entered into force in the 28 EU Member States and
Mexico.
6. See, e.g., John Boutari & Son, Wines & Spirits, S.A.v.Attiki Imp. and Distrib., Inc., 22 F.3d 51, 53 (2d
Cir. 1994); Docksider, Ltd. v.Sea Tech., Ltd., 875 F.2d 762, 764 (9th Cir. 1989); Hunt Wesson Foods, Inc.
v.Supreme Oil Co., 817 F.2d 75, 7778 (9th Cir. 1987); Keaty v.Freeport Indonesia, Inc., 503 F.2d 955,
95657 (5th Cir. 1974); Citro Fla., Inc. v.Citrovale, S.A., 760 F.2d 1231, 123132 (11th Cir. 1985); Boland
v.George S.May Intern. Co., 969 N.E.2d 166 (Mass. App. Ct.2012).
7. Conversely, a choice-of-law clause does not, without more, operate as a selection of the chosen states
courts for jurisdictional purposes. See Algemene Bank Nederland, M.V.v.Mattox, 611 F.Supp.144 (N.D.
Ga. 1985); Dent-Air, Inc. v. Beech Mountain Air Serv., 332 N.W.2d 904 (Minn. 1983). However, combined with other contacts, a choice-of-law clause may provide a partial basis of jurisdiction to the extent
it amounts to purposeful availment of the chosen states benefits and protections. See Burger King Corp.
v.Rudzewicz, 471 U.S. 462, 482 (1985).
8. See Scherk v.Alberto-Culver Co., 417 U.S. 506, 519 n.13 (1974) (noting that a forum selection clause
might also be viewed as implicitly selecting the law of that place to apply to that transaction.); cf. The
Bremen v.Zapata Off-Shore Co., 407 U.S. 1, 13 n.15 (1972) (while the contract here did not specifically
provide that the substantive law of England should be applied, it is the general rule in English courts that
the parties are assumed, absent contrary indication, to have designated the forum with the view that it
should apply its own law.).
438
American courts accepted nonexclusive clauses relatively early and easily,11 but they initially rejected exclusive clauses on the ground that they illegally ousted a courts jurisdiction.12
Asimilar hostility toward arbitration clauses was eliminated by the enactment in 1925 of the
Federal Arbitration Act.13 The attitude toward exclusive clauses began changing in 1972, when
the Supreme Court upheld an exclusive English forum selection clause in The Bremen v.Zapata
Off-Shore Co.,14 a case involving an international maritime towing contract between two large
and sophisticated corporations. The Court held that a freely negotiated15 forum selection
clause is prima facie valid and should be enforced,16 unless the resisting party makes a strong
showing that it should be set aside.17 To do so, the resisting party must demonstrate (1)that
the clause is []affected by fraud, undue influence, or overweening bargaining power;18 or
(2)that its enforcement (a)would contravene a strong public policy of the forum in which suit
is brought,19 or (b)would be unreasonable under the circumstances.20 Although the Court
did not address the question of the law under which this showing must be made, the context
of the above-quoted statements suggests that the Court was thinking in terms of the lex fori.21
Two decades later, in Carnival Cruise Lines, Inc. v.Shute,22 the Court moved to the farthest
possible extreme by upholding an exclusive Florida forum selection clause printed in small
print on the back of a cruise passenger ticket for a voyage in the Pacific Ocean. The Court
was unmoved by the fact that this clause was part of a consumer contract in which the parties bargaining power was clearly unequal, the clause was not bargained for, and Florida was
quite remote from the passengers home state of Washington. The Court decided to refine the
analysis of The Bremen to account for the realities of form passage contracts,23 but, instead of
refining, the Court simply extended that analysis to consumer contracts. It appl[ied] the same
principles to cases involving uninformed and unsophisticated consumers as to cases involving
sophisticated business entities on both sides of a contract.24
11. See Natl Equip. Rental, Ltd. v.Szukhent, 375 U.S. 311 (1964).
12. See, e.g., Nute v. Hamilton Mut. Ins. Co., 72 Mass. (6 Gray) 174 (1856); Nashua River Paper Co.
v.Hammermill Paper Co., 111 N.E. 678 (Mass. 1916); Benson v.Eastern Bldg. & Loan Assn., 66 N.E. 627
(N.Y.1903).
14. The Bremen, 407 U.S. 1 (1972).
15. Id.at12.
16. Id.at10.
17. Id.at14.
18. Id.at12.
19. Id.at15.
20. Id.at10.
21. In a different context, the Court noted that, had the case been adjudicated in England, the English
court would have applied English law to the merits of the contract. See id. at 13, n.15 ([W]hile the
contract here did not specifically provide that the substantive law of England should be applied, it is the
general rule in English courts that the parties are assumed, absent contrary indication, to have designated
the forum with the view that it should apply its own law.).
22. 499 U.S. 585 (1991).
23. Id. at593.
24. L.S. Mullenix, Gaming the System:Protecting Consumers from Unconscionable Contractual Forum-
Selection and Arbitration Clauses, 66 Hastings L.J. 719, 745 (2015).
439
This extension, which at least one author has characterized as misguided, unprincipled, and
ultimately unfair,25 launched American law in a strident laissez-faire direction. In the actual
case, it resulted in rejecting the lower courts position that a nonnegotiated forum-selection
clause in a form ticket contract is never enforceable simply because it is not the subject of bargaining,26 as well as its conclusion that the clause was unreasonable because the consumer was
physically and financially incapable of pursuing this litigation in [the designated forum.]27
In fact, the Supreme Court opined that passengers who purchase tickets containing a forum
clause like that at issue in this case benefit in the form of reduced fares reflecting the savings
that the cruise line enjoys by limiting the fora in which it may be sued.28
Although universally criticized by commentators,29 Shute illustrates the dramatic move
of American courts from initial hostility to enthusiastic, and often uncritical, acceptance of
forum selection clauses. Beginning with Shute, what originated as a doctrine in the context of
admiralty law in a dispute arising between sophisticated international businesspersons has been
transmuted into a narrowly restrictive doctrine of presumptive validity of forum-selection
clauses in consumer and nonconsumer contracts.30 After Shute, nothing is extreme. Since
then, the tentacles of forum-selection clause doctrine have reached further and further and
eventually ensnared domestic commercial agreements, ordinary consumer contracts, employment agreements, brokerage agreements, and basically any arrangement governed by contract.31
Both The Bremen and Shute are admiralty cases and thus they are binding authority only in
admiralty cases. In the meantime, other decisions also have upheld exclusive forum selection
clauses in other federal-question cases, such as securities32 and antitrust cases.33 Technically,
these authorities are not binding when the federal courts jurisdiction is based solely on
25. Id. at754.
26. 499 U.S.at593.
27. Id. at594.
28. Id. But see Mullenix, supra note 24, at 754 ([T]o date, empirical studies have not demonstrated such
economic pass-along to consumers, or how forum-selection clauses actually benefit consumers entrapped
by what essentially constitutes a defendants unilateral forum preference.)
29. See, e.g., J. H. Bruch, Forum Selection Clauses in Consumer Contracts: An Unconscionable Thing
Happened on the Way to the Forum, 23 Loy. U. Chi. L.J. 329 (1992); L. Goldman, My Way and the
Highway: The Law and Economics of Choice of Forum Clauses in Consumer Form Contracts, 86 Nw.
U.L. Rev. 700 (1992); W. Heiser, Forum Selection Clauses in Federal Courts:Limitations on Enforcement
after Stewart and Carnival Cruise, 45 Fla. L. Rev. 553 (1993); J.A. Liesemer (Note), Carnivals Got the
Fun and the Forum:ANew Look at Choice-of-Forum Clauses and the Unconscionability Doctrine
after Carnival Cruise Lines, Inc. v. Shute, 53 U. Pitt. L. Rev. 1025 (1992); L.S. Mullenix, Another Easy
Case, Some More Bad Law:Carnival Cruise Lines and Contractual Personal Jurisdiction, 27 Tex. Intl L.J.
323 (1992); E.A. Purcell, Jr., Geography as a Litigation Weapon: Consumers, Forum-Selection Clauses,
and the Rehnquist Court, 40 UCLA L.Rev. 423 (1992); M.E. Solimine, Forum-Selection Clauses and the
Privatization of Procedure, 25 Cornell Intl L.J. 51 (1992); D.H. Taylor, The Forum Selection Clause:ATale
of Two Concepts, 66 Temp. L.Rev. 785 (1993).
30.Mullenix, supra note 24, at748.
31. Id. at749.
32. See Scherk v.Alberto-Culver Co. 417 U.S. 506 (1974); AVC Nederland B.V.v.Atrium Inv. Partnership,
740 F.2d 148, 156 (2d Cir.1984).
33. See Mitsubishi Motors Corp. v.Soler ChryslerPlymouth, Inc., 473 U.S. 614 (1985); Bense v.Interstate
Battery Sys. of Am., Inc., 683 F.2d 718, 72021 (2d Cir. 1982). See also Vimar Seguros y Reaseguros,
S.A.v.M/V Sky Reefer, 515 U.S. 528 (1995), discussed infra 47577.
440
diversity, because, in these cases, state rather than federal law governs substantive legal questions. In Stewart Organization, Inc. v.Ricoh Corp.,34 the first diversity case to reach the Supreme
Court in which enforcement of an exclusive forum selection clause was a key issue, the Court
upheld the clause and rejected the argument that state law (which held the clause unenforceable) should govern.35 However, Stewart was decided in the special context of a federal statute
that allows the transfer of cases between federal district courts.36 Thus, Stewart did not address
the question of whether state or federal law governs the enforceability of exclusive forum selection clauses when this statute is inapplicable, such as when the clause designates a state court
or a foreign court. In Atlantic Marine Construction Co. v.U.S. District Court for Western District
of Texas,37 the last Supreme Court case involving a forum selection clause, the Court did not
expressly answer this question,38 but knowledgeable observers have inferred an implicit answer
in favor of federal law.39 In the meantime, several lower courts have also applied federal law in
deciding diversity cases involving forum selection clauses.40
The Bremen and other aforementioned federal cases are not binding on state courts in
deciding questions of state law. Nevertheless, most state courts have chosen to adopt The
Bremens reasoning and philosophy, and have overcome their initial hostility toward exclusive
forum selection clauses, even if some of those courts probably would not go to the extreme of
34. 487 U.S. 22 (1988).

35. In a concurring opinion, Justice Kennedy stated that the reasoning of The Bremen applies with much
force to federal courts sitting in diversity. Id. at 33 (Kennedy, J.concurring).
36. See 28 U.S.C.A. 1404(a) (2015), discussed infra 55051.
37. 134 S.Ct. 568 (2013).
38. The Court held that the proper mechanism for enforcing a forum selection clause in federal court
is: (1) a transfer under 28 U.S.C. 1404(a), if the clause designates another federal forum; and (2) the
residual forum non conveniens doctrine (on which 1404(a) was based), if the clause designates a non-
federal (state or foreign)forum.
39. See Wright, Miller, & Cooper, supra note 1, 3803.1 (It seems rather clear that federal law should
govern.); Mullenix, supra note 24, at 743 (It is unclear whether the Atlantic Marine decision has definitively resolved this debate in favor of exclusive application of federal common law principles, but it would
seemso.).
40. See, e.g., Wong v.PartyGaming Ltd, 589 F.3d 821 (6th Cir. 2009); Fru-Con Constr. Corp. v.Controlled
Air, Inc., 574 F.3d 527 (8th Cir. 2009); Doe 1 v.AOL LLC, 552 F.3d 1077 (9th Cir. 2009); Ginter ex rel.
Ballard v. Belcher, Prendergast & Laporte, 536 F.3d 439 (5th Cir. 2008); Phillips v. Audio Active Ltd.,
494 F.3d 378 (2d Cir. 2007); P & S Bus. Machs. v.Canon USA, Inc., 331 F.3d 804 (11th Cir. 2003); Jones
v. GNC Franchising, Inc., 211 F.3d 495 (9th Cir. 2000); Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d
Cir. 1995); Royal Bed & Spring Co. v.Famossul Industria, 906 F.2d 45 (1st Cir. 1990); Jones v.Weibrecht,
901 F.2d 17 (2d Cir. 1990); Karl Koch Erecting Co. v.NewYork Convention Ctr. Dev. Corp., 838 F.2d 656
(2d Cir.1988); Manetti-Farrow, Inc. v.Gucci Am., Inc., 858 F.2d 509, (9th Cir. 1988); Pelleport Invrs Inc.
v.Budco Quality Theatres Inc., 741 F.2d 273 (9th Cir. 1984); Mercury Coal & Coke, Inc. v.Mannesmann
Pipe & Steel Corp., 696 F.2d 315 (4th Cir.1982); Phoenix Surgicals, LLC v.Blackstone Med., Inc., 2011 WL
63992 (D. Conn. 2011); James v.Interactive Holdings, Inc., 2011 WL 134068 (D. Conn. 2011); Strategic
Mktg. & Commcns, Inc. v.Kmart Corp., 41 F.Supp.2d 268 (S.D.N.Y. 1998). But see Gen. Engg Corp.
v. Martin Marietta Alumina, Inc., 783 F.2d 352 (3d Cir.1986); Farmland Indus., Inc. v. Frazier-Parrott
Commodities, Inc., 806 F.2d 848, 852 (8th Cir. 1986). For a thorough discussion of this issue, see R.deBy
(Note), Forum Selection Clauses: Substantive or Procedural for Erie Purposes, 89 Colum. L. Rev. 1068
(1989); Y. Lee (Note), Forum Selection Clauses: Problems of Enforcement in Diversity Cases and State
Courts, 35 Colum. J.Transnatl L. 663 (1997).
441
enforcing Shute-type clauses.41 Although the treatment of forum selection clauses varies from
state to state and from subject to subject, it is safe to say that, generally speaking, state courts
are slightly less deferential to forum selection clauses than federal courts, and more deferential
than EU courts under the Brussels IRegulation.
For example, unlike Brussels I, which does not enforce pre-dispute forum selection clauses
disfavoring consumers or employees,42 American courts usually enforce such clauses with little
hesitation, at least in states that have not enacted statutes invalidating these clauses in consumer, employment, and insurance contracts, under certain conditions.43 In fact, it may well be
that American courts are the most liberal in the world with respect to enforcing forum selection clauses. As one astute observernoted,
If one sifts through the thousands of reported federal forum-selection clause decisions since [The
Bremen v.] Zapataand there are thousands of such decisionsone cannot help but be struck by
the following fact:in virtually every case the party seeking enforcement of the clause wins, and
the party seeking to invalidate the clause loses.44
Perhaps the numbers are not quite as bleak, but there is no question that the challengers of
forum selection clauses face extremely difficult odds. One recent case, Petersen v.Boeing Co.,45
would suffice to show the extreme liberality of federal courts toward forum selection clauses. In
this case, a federal district court, without conducting an evidentiary hearing, held enforceable
a forum selection clause requiring an employee to litigate his contract and tort claims against
41. For example, on remand from the Supreme Court in Shute, the California court held the clause
unenforceable as to cruise passengers who did not have sufficient advance notice of the clause. See
Carnival Cruise Lines, Inc. v.Super. Ct., 286 Cal. Rptr. 323 (Cal. App.1991). The Supreme Court had not
addressed this issue. See also Schaff v.Sun Line Cruises, Inc., 999 F.Supp.924 (S.D. Tex. 1998); Casavant
v.Norwegian Cruise Line, Ltd., 829 N.E.2d 1171 (Mass. App. Ct. 2005), review denied, 834 N.E.2d 256
(Mass. 2005), cert. denied, 126 S.Ct. 1337 (2006); Mack v.Royal Caribbean Cruises, Ltd., 838 N.E.2d 80
(Ill. App.2005), appeal denied 850 N.E.2d 808 (Ill. 2006), cert. denied 127 S.Ct. 350 (2006).
42. See Articles 19 and 23 of Regulation (EU) No. 1215/2012 of the European Parliament and of the
Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in
Civil and Commercial Matters (Recast) (hereafter Brussels I Regulation), L 351/1 O.J. (20.12.2012).
These articles provide that the provisions of the Regulation that define the jurisdiction of courts in consumer or employment contracts may be departed from only by an agreement: which is entered into
after the dispute has arisen or which allow the consumer or employeebut not the other partyto
sue in another state. Article 19 also allows pre-dispute forum selection clauses selecting the courts of
a Member State in which both the consumer and the other party are domiciled or habitually resident,
provided that such an agreement is not contrary to the law of that Member State. Article 14 provides a
similar but more complicated protective regime for insureds.
43.For discussion of recent state and federal cases involving forum selection clauses, see S. Symeonides,
Choice of Law in the American Courts in 2009:Twenty-Third Annual Survey, 58 Am. J.Comp. L. 227, 25966
(2010); S. Symeonides, Choice of Law in the American Courts in 2010:Twenty-Fourth Annual Survey, 59 Am.
J.Comp. L. 303, 37577 (2011); S. Symeonides, Choice of Law in the American Courts in 2011:Twenty-Fifth
Annual Survey, 60 Am. J.Comp. L. 291, 33839 (2012); S. Symeonides, Choice of Law in the American Courts
in 2012:Twenty-Sixth Annual Survey, 61 Am. J.Comp. L. 217, 24755 (2012); S. Symeonides, Choice of Law
in the American Courts in 2013:Twenty-Seventh Annual Survey, 62 Am. J.Comp. L. 223, 24047 (2014).
44.Mullenix, supra note 24, at 750 (footnote omitted). Mullenix reports that between the date of the
Bremen decision and Feb. 2, 2014, Westlaw posted 9,987 federal cases involving forum selectioncases.
45. 715 F.3d 276 (9th Cir.2013).
442
his employer in Saudi Arabia. Appearing pro se and in forma pauperis, the plaintiff alleged facts
that not only showed the difficulties of litigating in Saudi Arabia, but also raised legitimate
doubts on whether a valid forum selection clause existed in the first place. The plaintiff was
hired in the United States for work in Saudi Arabia through a preliminary agreement that did
not contain a forum selection clause. However, upon arrival in Saudi Arabia, he was forced
to sign a second employment agreementwhich he was not given time to read and which he
was told he must sign or else return immediately to the United States at his own expense.46
This agreement contained a forum selection clause requiring any contractual disputes to be
resolved in the Labor Courts of Saudi Arabia. The plaintiff attached to his complaint a U.S.
State Department Report showingthat:
(1) Saudi authorities would not grant him a visa to re-enter Saudi Arabia;
(2) If he did re-enter Saudi Arabia, his employer could detain him for the entire duration of any legal proceedings because employers may ask authorities to prohibit the
employees from departing the country until the dispute is resolved, often with the
intent to force the employee to accept a disadvantageous settlement or risk deportation
without any settlement[;]47and
(3) He could not have a fair trial in Saudi Arabia because the Saudi judiciary was not
independent and was subject to influence by powerful individuals.48
Despite the above, the district court dismissed the action without a hearing, under Federal
Rule of Procedure 12(b)(3), for improper venue. The Ninth Circuit reversed. The court found
that the plaintiff s allegations, corroborated by evidence, were sufficient to create a triable
issue of fact as to whether the choice-of-forum clause was enforceable, and that the district
court had abused its discretion in dismissing the action without a hearing. The Ninth Circuit
remanded the case with instructions to the trial court to conduct such a hearing and to determine: (1) whether the clause was the result of fraud or overreaching, and (2) whether its
enforcement under these circumstances would effectively deny the plaintiff his day in court.49
B. WHICH LAW GOVERNS FORUM

SELECTION CLAUSES?
A forum selection clause is an agreement, usually contained in the contract that the clause purports to subject to the jurisdiction of the chosen forum. Before one can properly speak of such an
agreement, however, one must first verify that it validly came into existence. In turn, this may
require answering several questions, such as whether there was a meeting of the minds, whether
46. Id. at 278. See also id.:([The plaintiff s] passport was then confiscated; he was effectively imprisoned
in his housing compound under miserable living conditions; and his work environment was marked by
rampant safety and ethics violations. When he attempted to resign and return to the United States, his
employer refused to return his passport for a period of nearly three months.).
48. Id.
49. The court also noted that, if the district court were to find the clause enforceable, it should also examine whether it encompassed the plaintiff s tort claims, implying that those claims did not depend on the
interpretation of the contract.
443
the parties consent was free of vices, or in The Bremen terms, unaffected by fraud, undue influence, or overweening bargaining power.50 The Bremen Courts statement that such an agreement
is prima facie valid simply means that the burden of proving otherwise lies with the party that
challenges the agreement, not that it is automatically valid and enforceable. Moreover, many agreements are ambiguous regarding their effect and scope, raising questions such as whether they
confer exclusive or nonexclusive jurisdiction, or whether they encompass non-contractual claims.
Some of these questions are legal, others are factual, but for both sets of questions there is
potentially a choice-of-law question-under which states law should one answer these questions? For, even with regard to factual questions, the laws of the involved states may differ
in how facts are evaluated, who should bear the burden of proof, etc. This question is more
complicated when the contract contains a choice-of-law clause, in addition to a forum selection clause. Under which law should one determine the meaning, scope, and enforceability of
the forum selection clause? Should it be: (1) the law of the seized forum qua forum, (2) the
contractually chosen law, or perhaps (3)another law? At least one American court has characterized this as the chicken or the egg question.51
Figure5, below, depicts the various categories of cases and the options in each category. It
distinguishes between:
(1) cases in which the action is filed in the chosen forum;and
(2) cases in which the action is filed in another forum (hereinafter referred to as the
seized forum). It then subdivides the latter casesinto:
(a) cases in which the contract does not contain a choice-of-law clause;and
(b) cases in which the contract does contain a choice-of-law clause, in addition to the
forum selection clause.
Law Governing Forum Selection Clauses
Action filed in
chosen court
Apply lex Apply lex
contractus
fori
Action filed in another court (seized court)

Without a choice-of-law clause
Apply
lex fori
Apply law of Apply lex

chosen court contractus
With a choice-of-law clause
Apply lex fori
Apply law of Apply law of

chosen court chosen state
Figure5. Law Governing Forum Selection Clauses.

The following text discusses the resulting three scenarios.
50. The Bremen, 407 U.S.at12.
51. Beilfuss v.Huffy Corp., 685 N.W.2d 373, at 376 (Wis. Ct. App.2004) (characterizing as a chicken or the
egg problem the question of whether to construe each clause separately and, if so, in what order? The court
examined first the choice-of-law clause and found it unenforceable because the chosen law of Ohio would
enforce a noncompete agreement that violated Wisconsins public policy in a case that otherwise would be
governed by Wisconsin law. That being so, the court reasoned, it would be unreasonable to enforce a forum
selection clause that would send the parties to an Ohio court, which would enforce the choice-of-law clause.
444
1. Scenario 1:Action Filed

inthe Chosen Court
Scenario 1 consists of cases in which the action is filed in the court designated in the forum
selection clause. This is the easy scenario. In determining the validity and scope of the clause,
the chosen court has two options:(1)to apply its own substantive law (lex fori), or (b)to apply
the substantive law that, under the forums choice-of-law rules, would govern the underlying
contract (lex contractus).
In practice, the chances of applying a law other than the lex fori are slim. For, if the contract
contains a choice-of-law clause, in addition to the forum selection clause, the two clauses are
likely to point to the same state, that is, the forum state.52 If the contract does not contain a
choice-of-law clause, the court will likely assume that the choice-of forum clause amounts to
an implicit choice-of-law clause, that is, by agreeing to litigate in the chosen state, the parties
have also impliedly agreed to the application of that states law.53 Even if the court does not subscribe to this assumption, the court will have no incentive to apply the law of another state to
determine whether it should hear a case that the parties agreed should be heard by thatcourt.
This is why no cases can be found in which the chosen forum has applied a law other than
its own. Abbott Laboratories v.Takeda Pharmaceutical Co. Ltd.54 presented a somewhat similar
scenario. A contract between Abbott, an Illinois company, and Takeda, a Japanese company,
contained an Illinois choice-of-law clause and an unusual forum selection clause requiring any
lawsuit between the parties to be brought in Japan if Abbott were the plaintiff and in Illinois
if Takeda were the plaintiff. Instead, Abbott sued Takeda in Illinois. In an opinion by Judge
Posner, the Seventh Circuit affirmed the dismissal of the lawsuit under the Japanese prong
of the forum selection clause. Among the disputed issues were an issue of interpretation of
the clause (whether it encompassed tort claims) and one of enforceability (whether the clause
was unreasonable in mandating litigation in Japan). The court decided both issues under
Illinois law, holding for Takeda. However, because Illinois was both the forum state and the
state whose law was chosen in the choice-of-law clause, this case does not support the proposition that the law of the forum qua forum governs forum selection clauses.
Internationally, the Hague Choice of Court Convention of 2005, which is the most authoritative (and recent) text on this issue, provides that, if the action is filed in the chosen court, the
court shall have jurisdiction, unless the forum selection clause is null and void under the
law (including the conflicts law) of the state of the chosen court.55
52. This author has identified only two cases in which the forum selection and choice-of-law clauses
pointed to two different states. See Rucker v.Oasis Legal Fin., L.L.C., 632 F.3d 1231 (11th Cir. 2011)(contract containing Illinois forum selection and Alabama choice-
of-
law clauses); Intermetals Corp.
v.Hanover Intl AG fur Industrieversicherungen, 188 F.Supp.2d 454, 458 (D.N.J. 2001)(contract containing Austrian forum selection clause and English choice-of-law clause).
53. See The Bremen, 407 U.S.at 13, n.15 ([W]hile the contract here did not specifically provide that the
substantive law of England should be applied, it is the general rule in English courts that the parties are
assumed, absent contrary indication, to have designated the forum with the view that it should apply its
own law.).
54. 476 F.3d 421 (7th Cir.2007).
55. Article 5 of the Convention provides that the chosen court shall have jurisdiction to decide a dispute to which the agreement applies, unless the agreement is null and void under the law of [the chosen]
State. Hague Choice of Court Convention, Art. 6.The accompanying Explanatory Report explains that
445
2. Actions Filed ina Court Not

Chosen (the SeizedForum)
Cases in which the action is filed in a forum other than the one designated in the forum selection clause are more numerous and more difficult. These cases can be divided into two categories:(1)cases in which the contract does not contain a choice-of-law clause, and (2)cases
in which the contract does contain a choice-of-law clause, in addition to the forum selection
clause. The discussion below begins with cases of the first category.
a. Scenario 2:Contracts withoutChoice-of-Law Clauses

This scenario consists of cases in which the action is filed in a forum other than the one designated in the forum selection clause, and in which the contract does not contain a choice-of-law
clause. In this scenario, the court has three options for determining the existence, validity, and
scope of the forum selection clause:(1)apply the substantive law of the seized forum (the lex
fori), (2)apply the substantive law of the state whose courts are chosen in the forum selection
clause, or (3)apply the law that governs the underlying contract (lex contractus).
In the United States, only the first option has a following. This is the conclusion of the two
authors that have studied this question in depthProfessors Kevin M. Clermont and Jason
W.Yackee. Clermont concludes that [a]lmost all American courts apply their own law, the lex
fori, and [m]ost do so with little or no thinking.56 Yackee, who sharply criticizes [t]his bias
towards the lex fori,57 acknowledges that with rare exceptions, United States courts tend not
to engage in explicit choice of law analysis, and instead reflexively apply lex fori, even when
the contract contains an explicit choice of law clause selecting the laws of another jurisdiction
to govern the contract as a whole.58
An example of this trend is Manetti-Farrow, Inc. v.Gucci America., Inc.,59 which involved
a contract between an Italian manufacturer and an American distributor. The contract designated Florence, Italy, as the forum for resolution of any controversy regarding interpretation
or fulfillment of the contract.60 The question was whether the clause encompassed tort claims,
in addition to contract claims. The court answered the question in the affirmative, without any
consideration of, or reference to, Italianlaw.
Another example is Boland v.George S.May International. Co.,61 in which the question was
whether a clause providing that jurisdiction shall vest in the State of Illinois was mandatory
or permissive. To the disappointment of the clauses drafter, the Massachusetts court held that
the reference to the law of the chosen state includes the choice-of-law rules of that State. T. Hartley & M.
Dogauchi, Explanatory Report, Convention of 30 June 2005 on Choice of Court Agreements, 125 (2013),
available at http://www.hcch.net/upload/expl37final.pdf.
56.Clermont, supra note 1, at 649 (footnote omitted).
57.Yackee, supra note 1, at 69 (2004).
58. Id. at 67. The rare exceptions to which the author alludes are cases in which the contract did contain
a choice-of-law clause.
59. 858 F.2d 509 (9th Cir.1988).
60. Id. at510.
61. 969 N.E.2d 166 (Mass. App. Ct.2012).
446
this clause only permitted, but did not require, the litigation to be brought in the State of
Illinois.62 The court did not make any reference to Illinoislaw.
Internationally, the Hague Choice of Court Convention does not distinguish between cases
based on whether the contract contains a choice-of-law clause, but does distinguish between
cases in which the action is filed in the chosen court and those in which the action is filed in
a non-chosen court (the seized court). As noted earlier, for cases filed in the chosen court,
Article 5 of the Convention provides that the law of that court (including its conflicts law)
determines the validity of the forum selection clause.63 For cases filed in a non-chosen court,
the Convention assigns some issues to the law of the state of the chosen court and some issues
to the law of the state of the seized court. Article 6 of the Convention provides that the seized
court must suspend or dismiss proceedings to which an exclusive choice of court agreement
applies, unless:
(a) the agreement is null and void under the law of the State of the chosencourt;
(b). party lacked the capacity to conclude the agreement under the law of the State of the
court seised;[or]
(c) giving effect to the agreement would lead to a manifest injustice or would be manifestly contrary to the public policy of the State of the court seised.64
Thus, the law of the state of the chosen court governs issues of invalidity on any ground
including incapacity,65 and the law of the state of the seized court governs:(1)capacity,66 and
(2)enforceability in every other respect.67 According to the Explanatory Report, the reference
to the law of the state of either the chosen forum or the seized forum includes the choice-of-
law rules of that State.68
62. Id. at168.

63. See supra, note 55.
64. Hague Choice of Court Convention, Art.6.
65. Explanatory Report,149.
66. Thus, capacity is determined both by the law of the chosen court and by the law of the court seised.
Id.150.
67. Also, Article 9 allows a court to refuse recognition of a judgment rendered on the basis of a choice-
of-court agreement if:
a) the agreement was null and void under the law of the State of the chosen court, unless the chosen
court has determined that the agreement is valid;
b) a party lacked the capacity to conclude the agreement under the law of the requested State;
c) the document which instituted the proceedings or an equivalent document, including the essential elements of the claim, (ii) was notified to the defendant in the re-quested State in a manner that
is incompatible with fundamental principles of the requested State concerning service of documents;
e) recognition or enforcement would be manifestly incompatible with the public policy of the
requested State, including situations where the specific proceedings leading to the judgment were
incompatible with fundamental principles of procedural fairness of that State;
Hague Choice of Court Convention, Art.9.
68. See Explanatory Report, 125, 149, 183, and184.
447
The European Unions Brussels IRegulation also does not distinguish between cases filed in
the chosen court and cases filed in a non-chosen court. However, unlike the Hague Convention,
the Brussels IRegulation assigns all issues of substantive validity69 of a forum selection clause
to the law (including the conflicts law) of the state chosen in the forum selection clause, even
when the action is filed in another state.70 This solution has significant flaws. For example, it
can unduly favor one party and can lead to bootstrapping. The most extreme scenario is one in
which the state of the chosen court has no connection with the case but has an unduly liberal
law on forum selection clauses and, for that reason, the strong contracting party imposes its
choice on the weak party. An attempt to adopt a more nuanced rule during the last revision of
the Brussels IRegulation in 2012 was abandoned, primarily for lack of time.71
b. Scenario 3:Contracts withChoice-of-Law Clauses

In the third scenario, the contract contains a choice-of-law clause (in addition to the forum
selection clause), and the action is filed in a forum other than the one designated in the forum
selection clause. This scenario occurs far more frequently than either scenario 1 or scenario
2.In this situation, the seized court has the same three options for determining the enforceability, meaning, and scope of the forum selection clause as in scenario 2.Namely:(1)apply
the substantive law of the seized forum (the lex fori), (2)apply the substantive law of the forum
designated in the forum selection clause, or (3)apply the law that governs the underlying contract (lex contractus).
The difference is that, in scenario 3, the lex contractus is the law designated by the parties
in the choice-of-law clause, rather than a law to be identified by the court through the choice-
of-law process, which is often laborious or indeterminate. In the vast majority of cases, the law
chosen in the choice-of-law clause is the law of the same state as the one chosen in the forum
selection clause. As noted earlier, the undersigned author has identified only two cases in which
the forum selection and choice-of-law clauses pointed to two different states.72 Because of these
differences, the dominance of the lex fori in scenario 3 is not as complete as it is in scenario
69. For issues of formal validity, Article 25 of Brussels Iprovides an autonomous rule, which requires the
agreement to be evidenced in writing or be in a form which accords with practices which the parties
have established between themselves; or in international trade or commerce, in a form which accords
with a usage of which the parties are or ought to have been aware and which in such trade or commerce
is widely known to, and regularly observed by, parties to contracts of the type involved in the particular
trade or commerce concerned. Any communication by electronic means that provides a durable record
of the agreement is considered equivalent to writing. The Hague Convention also requires the forum
selection clause to be in writing; or by any other means of communication which renders information accessible so as to be usable for subsequent reference. Hague Choice of Court Convention, Art.3(c).
70. See Brussels I, Art. 25 (If the parties have agreed that a court or the courts of a Member State
are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a
particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null
and void as to its substantive validity under the law of that Member State.) According to Recital (20), that
law includes the conflict-of-laws rules of that Member State.
71. The author was a member, and later chair, of the EU Councils drafting group, formally called the
Working Party on Civil Law Matters (BrusselsI).
448
2.As detailed below, in a handful of cases courts have applied the law of the state designated
in the choice-of-law clause in deciding at least certain aspects of the forum selection clause.
(1) CASES APPLYING FORUM LAW
However, there is no question that the vast majority of cases apply the lex fori. The cases that
follow this option are simply too numerous to count, whether in federal73 or in state74 courts.
They are even more numerous if one were to include cases that do not even consider the choice-
of-law question and thus reflexively apply forum law. As Professor Clermont observed, [t]he
great mass of cases presenting the problem do not expressly allude to it at all, be that the fault
of the judges or the lawyers.75 He asks, and then answers:What are the cases that ignore the
problem doing? They, of course, are applying lex fori.76
Energy Claims Ltd. v. Catalyst Investment Group Ltd.77 is a good example. It involved a
contract that contained an English choice-of-law clause in addition to an English forum selection clause. The plaintiff sued in Utah, arguing, inter alia, that the forum selection clause was
unenforceable because it was contained in a stock subscription contract that was the product
73. See, e.g., Petersen v. Boeing Co., 715 F.3d 276 (9th Cir. 2013); Doe 1 v. AOL LLC, 552 F.3d 1077
(9th Cir. 2009); FruCon Constr. Corp. v. Controlled Air, Inc., 574 F.3d 527 (8th Cir. 2009); Wong
v.PartyGaming Ltd., 589 F.3d 821 (6th Cir. 2009); Ginter ex rel. Ballard v.Belcher, Prendergast & Laporte,
536 F.3d 439 (5th Cir. 2008); Phillips v.Audio Active Ltd., 494 F.3d 378 (2d Cir. 2007); P & S Bus. Machs.
v.Canon USA, Inc., 331 F.3d 804 (11th Cir. 2003); K & V Sci. Co. v.Bayerische Motoren Werke AG, 314
F.3d 494 (10th Cir. 2002); Silva v.Encyclopedia Britannica, Inc., 239 F.3d 385 (1st Cir. 2001); Evolution
Online Sys., Inc. v.Koninklijke PTT Nederland N.V., 145 F.3d 505 (2d Cir. 1998); Afram Carriers, Inc.
v. Moeykens, 145 F.3d 298 (5th Cir. 1998); Lipcon v. Underwriters at Lloyds, 148 F.3d 1285 (11th Cir.
1998); Richards v.Lloyds of London, 135 F.3d 1289 (9th Cir. 1998); Stamm v.Barclays Bank of NewYork,
153 F.3d 30 (2d Cir. 1998); Haynsworth v.The Corporation, 121 F.3d 956 (5th Cir. 1997); Mitsui & Co.
(USA), Inc., v. MIRA M/V, 111 F.3d 33 (5th Cir. 1997); New Moon Shipping Co., Ltd. v. MAN B &W
Diesel AG, 121 F.3d 24 (2d Cir. 1997); Allen v. Lloyds of London, 94 F.3d 923 (4th Cir. 1996); Jumara
v.State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995); Shell v.R.W. Sturge, Ltd., 55 F.3d 1227 (6th Cir. 1995);
Gen. Elec. Co. v.G. Siempelkamp GmbH & Co., 29 F.3d 1095 (6th Cir. 1994); Bonny v.Socy of Lloyds, 3
F.3d 156 (7th Cir. 1993); Hugel v.Corp. of Lloyds, 999 F.2d 206 (7th Cir. 1993); Roby v.Corp. of Lloyds,
996 F.2d 1353 (2d Cir. 1993); Riley v.Kingsley Underwriting Agencies, Ltd., 969 F.2d 953 (10th Cir. 1992);
Spradlin v.Lear Siegler Mgmt. Servs. Co., 926 F.2d 865 (9th Cir. 1991); Polar Shipping, Ltd. v.Oriental
Shipping Corp., 680 F.2d 627 (9th Cir. 1981); Rudgayzer v.Google, Inc., 986 F.Supp.2d 151, 155 (E.D.N.Y.
2013); Androutsakos v.M/V PSARA, No. 02-1173-KI, 2004 WL 1305802 (D. Or. Jan. 22, 2004); BNY AIS
Nominees Ltd. v.Quan, 609 F.Supp.2d 269 (D. Conn. 2009); Intermetals Corp. v.Hanover Intl AG fur
Industrieversicherungen, 188 F. Supp. 2d 454 (D.N.J. 2001); Evolution Online Sys., Inc. v. Koninklijke
Nederland N.V., 41 F.Supp.2d 447 (S.D.N.Y.1999).
74. See, e.g., Energy Claims Ltd. v.Catalyst Inv. Group Ltd., 325P.3d 70 (Utah 2014); Cagle v.Mathers
Family Trust, 295 P.3d 460 (Colo. 2013); Pro-Football, Inc. v. McCants, 51 A.3d 586 (Md. 2012); Pro-
Football, Inc. v.Tupa, 51 A.3d 544 (Md. 2012); Thompson Tree & Spraying Service, Inc. v.White-Spunner
Const., Inc., 68 So. 3d 1142 (La. Ct. App.2011), writ denied, 71 So. 3d 290 (La. 2011); Moon v.CSA-Credit
Solutions of Am., Inc., 696 S.E.2d 486 (Ga. Ct. App.2010); Houseboat Store, LLC v.Chris-Craft Corp.,
692 S.E.2d 61 (Ga. Ct. App.2010); Golden Palm Hosp., Inc. v.Stearns Bank Natl Assn, 874 So.2d 1231
(Fla. Dist. Ct. App., 2004); Fendi v.Condotti Shops, Inc., 754 So. 2d 755 (Fla. Dist. Ct. App.2000); Yamada
Corp. v.Yasuda Fire & Marine Ins. Co., Ltd., 712 N.E.2d 926 (Ill. App.1999).
75.Clermont, supra note 1, at652.
76. Id. at653.
77. 325P.3d 70 (Utah2014).
449
of fraud. Under the doctrine of severability or separability, which is discussed later, the forum
selection clause is enforceable unless the challenger proves that the clause itself, not just the
contract, was the product of fraud.78 The Supreme Court of Utah decided to join the minority
of courts that have rejected the doctrine of separability, subject to certain conditions not relevant here. In reaching this decision and reversing the lower court decision that had dismissed
the action, the Supreme Court made no reference to English law, even though the court did
consider the choice-of-law clause in another contextdetermining whether it encompassed
tort claims.
Pro-Football, Inc. v. Tupa79 is another example of cases applying the lex fori. It involved
an employment contract between a professional football player and his team, the Washington
Redskins, a Maryland corporation. The contract contained Virginia forum selection and choice-
of-law clauses. When, following an injury in the Redskins stadium in Maryland, the player
filed for workers compensation with the Maryland Workers Compensation Commission,
the Redskins challenged the Commissions jurisdiction, invoking the Virginia forum selection
clause. In turn, the player invoked a Maryland statute, Section 9104(a), which did not mention
forum selection clauses but prohibited any agreement waiving an employees rights under the
statute. Applying this statute, the Maryland court upheld the Commissions jurisdiction, reasoning that the Virginia forum selection clause was tantamount to the very waiver of the employees
rights that the statute prohibited.80 Again, the court made no reference to Virginialaw.
(2) CASES APPLYING THECHOSENLAW
A small minority of cases apply the law chosen in the choice-of-law clause in interpreting a
forum selection clause contained in the same contract.81 As the underscoring indicates, virtually all of these cases involved questions of interpretation, not enforceability, of the forum
selection clause. Specifically, most of those cases involved the question of whether the clause
was exclusive or permissive.
Yavuz v.61 MM, Ltd.82 was one of these cases. The contract in question contained a Swiss
choice-of-law clause, and the question was whether a clause stating that Place of courts is
79. 51 A.3d 544 (Md.2012).
80. See id. at 549 (Section 9104(a), in plain, unambiguous language, precludes an agreement which
exempts an employer from the duty of paying workers compensation benefits which are otherwise
due under the Maryland statute. The section also precludes an agreement which waives the right of an
employee to receive workers compensation benefits which are otherwise due under the Maryland statute.
Aholding that forum selection clauses constitute an exception to 9104 would contravene basic principles concerning the interpretation of statutes.).
81. In addition to the cases discussed in the text, see Jacobsen Constr. Co. v.Teton Builders, 106P.3d. 719
(Utah 2005); Dunne v.Libbra, 330 F.3d 1062 (8th Cir. 2003); Jacobson v.Mailboxes Etc. USA, Inc., 646
N.E.2d 741 (Mass. 1995); Lambert v.Kysar, 983 F.2d 1110 (1st Cir. 1993); Cerami-Kote, Inc. v.Energywave
Corp., 773P.2d 1143 (Idaho 1989); Gen. Engg Corp. v.Martin Marietta Alumina, Inc., 783 F.2d 352 (3d
Cir. 1986); Rudgayzer v.Google, Inc., 986 F.Supp.2d 151 (E.D.N.Y. 2013); Simon v.Foley, No. 07CV
766S, 2011 WL 4954790 (W.D.N.Y. Oct. 18, 2011); Lanier v. Syncreon Holdings, Ltd., No. 1114780,
2012 WL 3475680 (E.D. Mich. Aug. 14, 2012); Global Link, LLC.v.Karamtech Co., Ltd., 06CV14938,
2007 WL 1343684 (E.D. Mich. May 8, 2007); TH Agric. & Nutrition, LLC v.Ace European Grp. Ltd., 416
F.Supp.2d 1054 (D. Kan. 2006), aff d, 488 F.3d 1282 (10th Cir.2007).
82. 465 F.3d 418 (10th Cir.2006).
450
Fribourg83 was a permissive or exclusive forum selection clause. The Tenth Circuit noted that
the tendency among some courts has been to reflexively apply the lex fori, but found that
approach unsatisfactory.84 The court concluded that a court should ordinarily honor an international commercial agreements forum-selection provision as construed under the law specified
in the agreements choice-of-law provision.85 The court remanded the case to the lower court to
allow the parties to present evidence on Swiss law. Upon remand, the district court dismissed
the case on forum non conveniens grounds, and the Tenth Circuit affirmed the dismissal.86
In Enquip Technologies Group v. Tycon Technoglass,87 a contract between an Italian manufacturer and its Florida-based U.S. sales representative contained an Italian choice-of-law
clause and a clause stating that [t]he law Court of Venice will be competent for any dispute.88
The Florida company sued the Italian manufacturer in Ohio, where the manufacturers parent company had its headquarters, for breach of contract and unpaid commissions. The court
concluded that, because a choice-of-law clause accompanied the forum selection clause, the
meaning of the latter clause should be determined under the law chosen by the choice-of-law
clause, namely, Italian law. A choice-of-law provision should be considered as evidence of
the meaning of a forum-selection clause in the same contract, said the court. Just like [the]
chosen law is used to interpret every other provision in [the] contract, it should also be used to
interpret [the] forum-selection clause.89
As noted earlier, the Brussels I Regulation, which applies in Italy, provides that a forum
selection clause shall be exclusive unless the parties have agreed otherwise.90 Taking note
of this provision, as well as a decision of the Italian Supreme Court, the Ohio court held that
[t]he plain meaning of the forum-selection clause here in Italian law is that the Court of
Venice has exclusive jurisdiction.91
83. Id. at422.

84. See id. at 428 (A forum-selection clause is part of the contract. We see no particular reason, at least
in the international context, why a forum-selection clause, among the multitude of provisions in a contract, should be singled out as a provision not to be interpreted in accordance with the law chosen by the
contracting parties.).
85. Id. at 430 (emphasis in original). The court arrived at this conclusion after endlessly quoting from
Supreme Court opinions favoring forum selection clauses and admitting that the opinions did not address
the precise issue at stake. Nevertheless, the Tenth Circuit opined that their general disposition suggested that
the meaning of forum selection clauses should be determined under the contractually chosen law. See also id.
at 428 (Supreme Court opinions in international disputes emphasize the primacy of the parties agreement
regarding the proper forum. Thus, when the contract contains a choice-of-law clause, a court can effectuate the parties agreement concerning the forum only if it interprets the forum clause under the chosenlaw.)
86. See Yavuz v.61 MM, Ltd., 576 F.3d 1166 (10th Cir.2009).
87. 986 N.E.2d 469 (Ohio Ct. App.2012), appeal not allowed, 137 Ohio St. 3d 1424 (Ohio 2013), reconsideration denied, 138 Ohio St. 3d 1418 (Ohio2014).
88. Enquip Tech., 986 N.E.2d at474.
89. Id. at477.
90. See supra 436.
91. Enquip Tech., 986 N.E.2d at 481. The court then explained its reasoning process, as follows:
To be clear, we have not decided the permissive-exclusive issue strictly as a choice-of-law issue.
Rather, we have decided it simply as an issue of contract interpretation. We applied Ohio contract-
construction law to the forum-selection clause. Ohio law says that the meaning of a forum-selection
451
However, this case involved an additional issue, which affected the enforceability, rather
than the interpretation of the forum selection and choice-of-law clauses. One of the plaintiff s
claims was that the defendant violated an Ohio statute that imposed triple damages for failure
to pay commissions to a sales representative who sells in Ohio. The statute also prohibited non-
Ohio choice-of-law or forum selection clauses, and declared null any waiver of its provisions.
The court was forced to conclude that, although the two clauses were enforceable with regard
to the plaintiff s contract claims, the clauses were unenforceable with regard to the plaintiff s
statutory claim for triple damage for unpaid commissions.92
In TH Agriculture & Nutrition, LLC v.Ace European Group Ltd.,93 the contract contained
a Dutch forum selection clause and a Dutch choice-of-law clause. Under the law of the forum
(Kansas) and of the Tenth Circuit, the clause would be considered permissive. The court concluded that the meaning of the forum selection clause should be determined under Dutch law,
both because the language of the Dutch choice-of-law clause was broad enough to encompass
any and all issues arising under the contract, and because, even in the absence of the choice-of-
law clause, Dutch law would be applicable under Kansass lex loci contractus rule. After discussing the voluminous and conflicting expert testimony submitted by six experts on Dutch law,
the court concluded that the forum selection clause was presumptively exclusive, and that the
defendant did not rebut the presumption.
In Albemarle Corp. v. AstraZeneca UK Ltd.,94 a contract between a Virginia seller (the
plaintiff) and an English buyer (the defendant) provided that the contract shall be subject to
English Law and the jurisdiction of the English High Court.95 English law would consider this
forum selection clause to be exclusive, whereas federal case law, as well as a statute of South
Carolina, the forum state, would consider the clause permissive. The Fourth Circuit held that,
when the contract contains a choice-of-law clause, the court must apply the chosen law to
interpret the forum selection clause. As the court put it, in this case, although the language of
the forum selection clause, taken by itself and out of context, appears to make the designation
of the English court permissive, the clause when taken in context contains what amounts to
language of exclusion because it includes language that English law, not American federal
law, must be applied and applying English law makes a difference.96 Based on this reasoning,
clause is the meaning intended by the parties. Based on the parties choice-of-law provision, which
states that their agreement is to be interpreted in accordance with Italian law, we concluded that
the meaning they intended is the forum-selection clauses meaning in Italian law. Consequently, we
considered what meaning Italian law would give to the clauses language. We then determined that
Italian law would give the forum-selection clause an exclusive meaning.
Id.
92. However, the court explained that this conclusion did not mean that Ohio law applies to determine
these damages. Id. at 482. The court concluded that the plaintiff was not entitled to triple damages under
Ohio law, and that it was unnecessary to choose between the laws of Florida and Italy, because neither of
these laws provided for triple damages.
93. 416 F.Supp.2d 1054 (D. Kan.2006).
94. 628 F.3d 643 (4th Cir.2010).
95. Id. at646.
96. Id. at651.
452
the court held the forum selection clause to be exclusive and affirmed the district courts dismissal of the action on that ground.
The appellate court also opined that, even under South Carolina law,97 the clause would
be considered exclusive. This is because South Carolina honors choice-of-law clauses unless
the chosen law is contrary to its strong public policy and, in the courts opinion, the aforementioned South Carolina statute, which prohibited exclusive forum selection clauses, did not
reflect a strong public policy.98 Thus, the court concluded, under either federal or state law,
English law must be applied, and it takes the clause as mandatory.99
In San Diego Gas & Electric Co. v.Gilbert,100 the contract contained California choice-of-
law and forum selection clauses. Noting that the California choice-of-law clause was valid, the
Supreme Court of Montana court decided to apply California law in interpreting the forum
selection clause.101 After discussing numerous California precedents, the court concluded that
the clause was mandatory because it stipulated that the parties consent to conduct all proceedings in the city of San Diego, California.102 The court reasoned:
[I]t strains logic to its breaking point to argue that one could agree to conduct all litigation in
San Diego but at the same time conduct it elsewhere. [T]he phrase conduct all specifically
limits the parties litigation activities to a single forum (mandatory), and does not merely state
that one court, among many, may exercise jurisdiction (permissive).103
(3) DISTINGUISHING BETWEENINTERPRETATION AND ENFORCEABILITY
Although one might take issue with the above reasoning, the more relevant question is whose
logic should a court use in assessing the forum selection clause: (1) the courts own logic,
(2)that of the chosen court, or (3)that of the state whose law is chosen? Afurther question,
97. The courts main holding was that a federal court interpreting a forum selection clause must apply
federal law in doing so [because] a forum selection clause implicates what is recognized as a procedural matter governed by federal lawthe proper venue of the court, Id. at 650, and that federal law on
this issue preempted contrary state law, such as the aforementioned South Carolina statute. See id. at 652
([I]nsofar as the South Carolina statue would purport to impose South Carolina procedural rules on a
federal court, it would be preempted by federal law [which] explicitly regulates the appropriate venue
in cases filed in federal court).
98. The court notedthat:
under state law, a state provision establishing, as a procedural matter, that the South Carolina venue
rules trump any contractual agreement selecting an exclusive forum outside of South Carolina is
not the type of provision that South Carolina courts have recognized as establishing a strong public
policy of the State that would overrule the parties choice of law outside South Carolina. See Nash
v.Tindall Corp., 650 S.E.2d 81, 8384 (S.C. Ct. App.2007).
Id. at 653. However, the Nash case did not involve this or an analogousissue.
99. Id.
100. 329P.3d 1264 (Mont.2014).
101. Id. at1268.
103. Id. at 127071.
453
and the most critical, is whether the answer should differ depending on whether the issue is
one of interpretation, as in Gilbert, or one of enforceability of the clause, as in Energy Claims.
Neither court made this distinction. In fact, in Energy Claims, the Utah court applied Utah law
not only in determining enforceability, but also in interpreting the clause, that is, determining
whether it was sufficiently broad to encompass tort claims.104 Fortunately, other courts, the
Second Circuit first among them, have provided an answer to this question.
Phillips v. Audio Active Ltd.105 was one of the first cases clearly to articulate a distinction
between interpretation and enforceability of a forum selection clause. The Second Circuit
sketched a four-part inquiry in examining forum selection clauses when the contract also contains a choice-of-law clause. The first three parts consist of determining:(1)whether the clause
was reasonably communicated to the party resisting enforcement,106 (2) whether the clause
is mandatory or permissive, and (3) whether the clause encompasses the claims in question.
If the court finds that the clause was reasonably communicated, mandatory, and covered the
claims in question, the clause is presumptively enforceable. In the fourth part of the inquiry,
the court determines whether the resisting party has rebutted the presumption by proving any
of the defenses that The Bremen allows-n
amely, demonstrating that the clause is []affected
by fraud, undue influence, or overweening bargaining power, or its enforcement would contravene a strong public policy of the forum in which suit is brought or would be unreasonable
under the circumstances.107
The court concluded that, even if the contract contains a choice-of-law clause, federal (i.e.,
forum) law must govern the fourth part of the inquiry because enforcement of forum clauses
is an essentially procedural issue while choice of law provisions generally implicate only the
substantive law of the selected jurisdiction.108 The court also noted, however, that there was
less to recommend the invocation of federal common law to interpret the meaning and scope
of a forum clause, as required by parts two and three of [the above] analysis.109 For these issues,
the court cited with approval the Yavuz case, which applied the chosen law in interpreting a
forum selection clause.110 In the end, the Phillips court did not have to apply the chosen law of
England because neither of the parties had argued for its application.
In Martinez v. Bloomberg LP,111 the same court had an opportunity to apply the distinction between questions of enforceability and interpretation. The court held that the lex fori
should govern the first, and the chosen law the second set of questions. Martinez was a federal-
question case arising out of an employment contract that contained English choice-of-law
and forum selection clauses. The court held that: (1) the substantive law designated in the
choice-of-law clause, in this case English law, governed the interpretation of the forum selection clause; and (2)the law of the forum, in this case federal law, governed the enforceability of
the forum selection clause. The court found that, under English law, the plaintiff s employment
104. See Energy Claims, 325P.3dat82.
105. 494 F.3d 378 (2d Cir.2007).
106. Id. at383.
107. The Bremen, 407 U.S.at 10, 12, 14,15.
108. Phillips, 494 F.3d at 38485.
109. Id. at385.
110. See id., quoting Yavuz v.61 MM, Ltd., 465 F.3d 418, 42830 (10th Cir. 2006)(discussed supra).
111. 740 F.3d 211 (2d Cir.2014).
454
discrimination claims fell within the scope of the forum selection clause, and that, under federal law, the clause was enforceable.
The court explained at length what should not need much explanation, that is, why forum/
federal law should govern questions of enforceability:
Federal law must govern the ultimate enforceability of a forum selection clause to ensure that a
federal court may [under The Bremen] decline to enforce a clause if trial in the contractual forum
[would] be so gravely difficult and inconvenient that [the resisting party] will for all practical purposes be deprived of his day in court, or if enforcement would contravene a strong public policy
of the forum in which suit is brought, whether declared by statute or by judicial decision.112
Next, the court explained why the chosen law should govern the interpretation of the
forum selection clause. To apply forum law, the court reasoned,could
undermine the predictability fostered by forum selection clauses, . . . frustrate the contracting
parties expectations by giving a forum selection clause a broader or narrower scope in a federal
court than it was intended to have, . . . [and] transform a clause that would be construed as permissive under the parties chosen law into a mandatory clause, or vice versa.113
The court also reasoned that distinguishing between enforceability and interpretation of
forum selection clauses accords with the traditional divide between procedural and substantive rules developed under Erie.114 The enforceability of a forum selection clause is a procedural question that must be governed by forum/federal law, whereas the interpretation of a
contract is quintessentially substantive for Erie purposes.115
This distinction is promising and eminently sensible. The question is whether other courts
follow it. The answer is mixed, but for the most part, the courts actual holdings are consistent
with this distinction. It is true that many courts also fail to make this distinction, either because
the case involves only one of the two categories of issues, or because the court does not see the
difference. For example, one court used the term interpretation of the validity.116 In another
case, Raydiant Technology, LLC v.Fly-N-Hog Media Group, Inc.,117 the plaintiff claimed fraud in
the inducement of the contract, which is clearly a matter of enforceability, not interpretation.
Although both parties relied exclusively on forum law, the court decided to apply the contractually chosen law. Mixing enforcement with interpretation, the court reasoned: [W]here, as
here, the case turns on the enforcement of a forum-selection clause, and the contract includes a
choice-of-law provision, the law chosen by the parties controls the interpretation of the forum-
selection clause.118
112. Id. at 218 (quoting The Bremen v.Zapata Off-Shore Co., 407 U.S. 1, 18 (1972)).
113. Id. at220.
114. Id.
115. Id. at221.
116. Szymczyk v.Signs Now Corp., 606 S.E.2d 728, 733 (N.C. Ct. App.2005).
117. 439 S.W.3d 238 (Mo. App.2014).
118. Id. at 240 (quotation marks omitted, emphasis added).
455
In Jacobson v. Mailboxes Etc. U.S.A., Inc.,119 the court stated that the chosen law should
govern both the enforceability and the interpretation of the forum selection clause, but actually
the case involved only the latter issuewhether the clause encompassed pre-contract wrongs.
The same was true in TH Agriculture & Nutrition, LLC v.Ace European Group Ltd.120 The court
spoke of analyzing the enforceability of the forum selection clause under the [chosen] law of
The Netherlands,121 but the case involved only an issue of interpretation-w
hether the clause
was exclusive or permissive. In Albemarle Corp. v.AstraZeneca UK Ltd.,122 which involved both
interpretation and enforceability issues, the court applied the chosen law to interpretation, and,
after finding that under that law the clause was exclusive, it then examined whether its enforcement would violate the public policy of the forum state. The same was true in Rudgayzer
v.Google, Inc.,123 which applied California law in interpreting the clause and federal/forum law
in determining its enforceability.124 In Simon v.Foley,125 the court concluded that the chosen law
should govern the interpretation, and forum law the enforceability of the clause. After finding
that, under the chosen law, the clause was permissive, the court allowed the action to proceed
because the defendant was unable to challenge the enforceability of the clause under the law of
the forum. In Lanier v.Syncreon Holdings, Ltd.,126 the court followed the same distinction. After
finding that the clause was mandatory under the chosen law of Ireland, the court examined the
.enforceability of the clause under the law of the forum, and found it enforceable.
In other cases, the court applied the chosen law in determining the enforceability of the
forum selection clause, but only after finding that enforcement of the clause did not offend the
forums public policy.127 Finally, in one case, Cerami-Kote, Inc. v.Energywave Corp.,128 the court
appeared willing to apply the chosen law in determining enforceability, but eventually applied
forum law through a renvoi from the chosen law. The contract contained Florida forum selection and choice-of-law clauses. In examining Florida precedents, the Idaho court learned that
Florida courts would enforce a forum selection clause, but only if enforcement would not contravene a strong policy enunciated by statute or judicial fiat, either in the forum where the suit
would be brought, or the forum from which the suit has been excluded.129 The italicized phrase
meant that a Florida court would not enforce the forum selection clause if it violated a strong
public policy of Idaho. The court concluded that this was such a case because the strong public
119. 646 N.E.2d 741 (Mass.1995).

120. 416 F.Supp.2d 1054 (D. Kan.2006).
122. 628 F.3d 643 (4th Cir. 2010), discussed supra 45152.
123. 986 F.Supp.2d 151 (E.D.N.Y.2013).
124. For an earlier case following exactly the same distinction, see AVC Nederland B.V.v.Atrium Inv.
Pship, 740 F.2d 148 (2d Cir.1984).
125. No. 07CV766S, 2011 WL 4954790, (W.D.N.Y. Oct. 18,2011).
126. No. 1114780, 2012 WL 3475680 (E.D. Mich. Aug. 14,2012).
127. See Lambert v.Kysar, 983 F.2d 1110 (1st Cir. 1993); Gen. Engg Corp. v.Martin Marietta Alumina,
Inc., 783 F.2d 352 (3d Cir.1986).
128. 773P.2d 1143 (Idaho1989).
129. Id. at 1146 (quotation marks omitted, emphasis partially omitted).
456
policy embodied in an Idaho statute prohibited foreign forum selection clauses in contract
such as the one involved in this case.130
3. Summary and Critique

In summarythen:
(1) In scenario 1, which consists of cases in which the action is filed in the court chosen
in the forum selection clause, American courts apply the substantive law of the forum
state, both in interpreting the clause and in deciding whether it is enforceable;
(2) The courts apply the same law, that is, the lex fori, in scenario 2, which consists of cases
in which the action is filed in a court other than the one designated in the forum selection clause and the contract does not contain a choice-of-law clause.
(3) In scenario 3, which consists of cases in which the action is filed in a court other
than the one designated in the forum selection clause and the contract does contain
a choice-of-law clause, American courts, by and large, apply: (1) the chosen law in
interpreting the forum selection clause, and (2) the substantive law of the forum in
determining the enforceability of the clause.
As this summary indicates, American courts apply the lex fori in most cases and to most
issues. Is this practice a bad idea? In a comprehensive and thoughtful article, Professor Jason
Yackee sharply criticizes this lex fori bias.131 He finds little inherent justification for automatically applying lex fori to questions of enforceability and validity132 of forum selection
clauses, because such a practice
risks subjecting the contract to multiple laws, it makes it difficult for parties to anticipate at the
contract drafting stage which law will actually be applied to [the clause], it may promote forum
shopping, and it ignores the parties bargained-for jurisdictional expectations by overlooking a
contracts explicit or implicit choice of law.133
130.In Jackson v.Payday Financial, LLC, 764 F.3d 765 (7th Cir. 2014), the Seventh Circuit held that the
law designated in the choice of law clause would be used to determine the validity of the forum selection clause, but ultimately did not apply that law. Id. at 775. In this case, which involved online loan
agreements between Illinois consumers and lenders located in the Cheyenne River Sioux Tribe Indian
Reservation in South Dakota, the choice-of-law clauses provided that the agreements were to be governed
by the laws of the Cheyenne River Sioux Tribe and were not subject to the laws of any state. Id. at 770.
However, because the Tribe had no law or precedents on forum selection clauses, the court, following the
Tribes practices, resorted to federal law. Applying federal law, the court held that the arbitration clauses
(which the court treated like forum selection clauses) contained in the loan agreements were unenforceable because they were procedurally and substantively unconscionable, as well as illusory. The clauses
called for arbitration to be conducted by the Cheyenne River Sioux Tribal Nation by an authorized representative in accordance with its consumer dispute rules. Id. at 776. The record showed that the Tribe
did not authorize arbitration and did not have consumer disputerules.
131.Yackee, supra note 1, at 43, 44, 47, 74, 79, 85, 88 (2004).
132. Id.at83.
133. Id. (footnotes omitted).
457
Yackee arguesthat:
[Forum selection clauses] should be governed first and foremost by the parties explicit choice of
law. When the parties have apparently concluded a choice of law clause that covers the contract
in which the [clause] is located or referenced, that apparent choice should govern [the clauses]
validity and enforceability. In the event that the parties have not made an explicit choice, the law
of the designated forum should govern the [clause]. That law has the highest probability of corresponding to the parties bargained-for jurisdictional expectations in the absence of an explicit
choice of law.134
In an equally comprehensive and thoughtful article, Professor Kevin Clermont defends the
current American practice of applying the lex fori in determining the enforceability of forum
selection clauses (while agreeing with the application of the chosen law in interpreting them).
He offers several arguments in support of the lex fori, including the following:
Applying lex fori to the forum-selection clause allows the court to control its own jurisdiction and venue, and to do so by uniformrules.
Lex fori would avoid the discomfort of sometimes allowing foreign law to determine
whether jurisdiction or venue exists in the seizedcourt.
In some thin sense, jurisdiction and venue come first, and so the court should decide
those questions before performing a choice-of-law analysis.
Lex fori would avoid the slight, and not insuperable, illogic of assuming an enforceable forum-selection or choice-of-law clause in order to choose the law to determine
enforceability.
For good reasons, courts do not normally interpret choice-of-law clauses to cover procedural matters; the enforceability of the separable forum-selection clause, sensibly and
practically considered, appears procedural for this purpose.
Applying lex fori, rather than the chosen law, to the forum-selection clause closes the
door to abusive clauses:the parties could be bootstrapping the forum-selection clause
into enforceability by choosing a very permissive law, and the stronger party could be
forcing the weaker party into an unfair forum applying unfair law.135
On balance, Clermont has the better arguments. His last one is particularly persuasive. As
noted earlier, unlike other countries, which do not enforce pre-dispute choice-of-forum clauses
that are unfavorable to consumers or employees,136 American law does not accord any a priori
protective treatment to any weak parties.
The [Supreme] Court consistently has turned a blind eye and deaf ear on the problem of consumer
forum-selection and arbitration clauses, instead merging consideration of consumer agreements
134. Id.at94.
135.Clermont, supra note 1, at 65455 (footnotes omitted).
136. See the provisions of the Brussels IRegulation cited supra at note 42. Likewise, the Hague Choice
of Court Convention does not apply to consumer and employment contracts. See Hague Convention,
Art.2(1).
458
with jurisprudence developed in the dissimilar context of sophisticated business partners freely
negotiating at arms length.137
This regime works to the advantage of prospective corporate defendants who exploit
forum-selection and choice-of-law clauses to their advantage138 and at the expense of uninformed and unsophisticated consumers, employees, franchisees, or other presumptively weak
parties.139 The result is that, more often than not, forum-selection clauses provide defendants
with a heads Iwin, tails you lose forum preference.140
In other words, the current American regime is bad enough as it isand will remain so,
as long as we are unwilling to follow the example of other systems, which accord protective
treatment to weak parties.141 However, it would be even worse if, in contracts involving these
parties, the courts were required to apply the law designated in the choice-of-law clause, a
clause drafted by the corporate defendant, virtually never negotiated, and imposed on the weak
party. Suppose, for example, that in Petersen v. Boeing Co.,142 the case involving the contract
for employment in Saudi Arabia, the American court were to apply the laws and customs of
the Kingdom of Saudi Arabia,143 as provided in the choice-of-law clause, for determining the
enforceability of the Saudi forum selection clause. Would the employee have any chance of getting the merits of his case heard in an American court? But, more important, is Saudi law the
proper law for deciding the logically antecedent question of whether either clause was valid to
beginwith?
137.Mullenix, supra note 24, at719.

138. Id. at743.
139. See id. at 75556:
The entire doctrine surrounding the sanctity of forum-selection and arbitration clauses in the consumer arena essentially has been constructed based on a series of somewhat fantastical premises
about these agreements. It first assumes that the contracting parties consist of a (sophisticated) consumer and a corporate or business entity. The doctrine assumes a knowledgeable consumer who
understands that at some future point, the consumer may be involved in a dispute with the business
entity. The doctrine assumes that this consumer understands what a forum choice means . . . . It
assumes that this consumer understands the consequences of a forum or choice-of-law designation. The doctrine assumes that the consumer has read the agreement and noticed and read the
forum-selection, choice-of-law, or arbitration clause. The doctrine assumes that the consumer willingly agrees, in advance of any dispute, to waive its choice of forum . . . . The doctrine assumes that
the consumer (or employee, or small consumer/investor) is receiving some unspecified economic
benefit from agreeing to the forum-selection, choice-of-law, or arbitration provision. The doctrine
assumes, as Justice Alito put it in Atlantic Marine, that the consumer knowingly and willingly waives
its venue privilege.
But what if none of this . . . istrue?
140. Id. at 736 (forum-selection clauses will almost always provide defendants with a heads Iwin, tails
you lose forum preference.).
141. See supra notes 42 and 136, referring to the Brussels IRegulation and the Hague Choice of Court
Convention.
142. 715 F.3d 276 (9th Cir. 2013), discussed supra at 44142.
143. Id., Boeing International Support Systems Companys Answering Brief, 2012 WL 2313305 at *18
(9th Cir June 7,2012).
459
Respect for party autonomy144 simply is not a good reason for referring the validity and
enforceability of a forum selection clause to the chosen law. Party autonomy in the choice of
substantive law has never been unrestricted.145 There is less of a reason to allow unrestricted
autonomy in the choice of forum. Forum selection clauses are different from choice-of-law
clauses, but the differences suggest less, not more, deference to the former clauses, precisely
because their enforcement prevents the seized court from adjudicating the merits. The Bremen
Court correctly discounted as a vestigial legal fiction146 the notion that forum selection
clauses, of their own force, oust a court of its jurisdiction. They do so only because the law of
the seized court endows them with that effect. It is simplistic to pretend that a forum selection
clause has no effect on the jurisdiction of the seized court. When the seized court chooses to
abide by a clause designating another court, the result is that the seized court cannot, or at least
will not, hear the merits. The question then is whether, in exercising this choice, the seized
court should follow the laws of its own state, or instead those of anotherstate.
Moreover, a clever combination of forum selection clauses and choice-of-law clauses can
lead to bootstrapping in extremis. Suppose, for example, that State X has a pro-business law
and an unduly liberal law in (not) scrutinizing forum selection clauses. For those reasons, the
strong contracting party (e.g., a corporate defendant) imposes on the weak party (e.g., a consumer) the choice of State Xs courts and law, even though State X has only a nominal connection with the case. Do the other states owe a blank check to the strongparty?
Chapter10, above, discusses several cases illustrating how such a combination of choice-
of-law and forum selection clauses can be deadly for consumers or employees. Franchisees are
equally vulnerable to the superior bargaining power of franchisors, which is why many states
have enacted statutes regulating franchise contracts in detail and prohibiting the waiver of
franchisee protection. Many of those statutes specifically prohibit foreign choice-of-law clauses,
and a few of them prohibit foreign forum selection causes. The protection that these prohibitions seek to provide would become meaningless if those states were required to apply the
contractually chosen law to determine the enforceability of the forum selection clause that the
statute directly or indirectly prohibits.
Kubis & Perszyk Associates, Inc. v.Sun Microsystems, Inc.147 is an old example of this scenario, although the chosen forum was in the franchisors home-state and thus did not lack a
connection with the case. Acontract between a California franchisor and a New Jersey franchisee contained a California choice-of-law clause and an exclusive California forum selection
clause. The New Jersey Franchise Act did not expressly prohibit these clauses, but it did prohibit waivers of other franchisee-protecting provisions. When the franchisor terminated the
franchise, the franchisee sued the franchisor in New Jersey. The trial court dismissed the action
based on the California forum selection clause. The intermediate court affirmed, reasoning that
it should trust the courts of California to be as protective of the rights of the New Jersey litigant under New Jersey law as it would hope another state would protect a California resident
144.Yackee, supra note 1, at 96 (urging respect for party autonomy, both to choose an exclusive forum
in which future disputes may be heard, and to choose, explicitly or implicitly, the law that will govern that
jurisdictional choice.).
145. See supra 369 et seq.
146. The Bremen, 407 U.S.at12.
147. 680 A.2d 618 (N.J.1996).
460
under California law, if the case were referred elsewhere.148 The court expressed confidence
that the California court will fairly and impartially adjudicate the dispute between the parties
in accordance with the governing law, which in this case might happen to be the law of New
Jersey,149 presumably despite the California choice-of-law clause.
The New Jersey Supreme Court reversed. After an extensive discussion of the legislative
history and text of the New Jersey Franchise Act and the policies it embodied, the court concluded that enforcement of the forum-selection clause would substantially undermine the
protections that the Legislature intended to afford to all New Jersey franchisees.150 The court
reasoned that a forum-selection clause can materially diminish the rights guaranteed by the
Franchise Act by mak[ing] litigation more costly and cumbersome for economically weaker
franchisees that often lack the sophistication and resources to litigate effectively a long distance
from home.151 The court expressed its concern, not only about the strong likelihood that the
California court would not apply the New Jersey Franchise Act, but also about the denial of a
franchisees right to obtain injunctive and other relief from a New Jersey court.152 For even if a
California and a New Jersey court afforded identical relief under the Act to an aggrieved franchisee, there may be a difference of substantial magnitude in the practical accessibility of that
relief from the perspective of an unsophisticated and underfinanced New Jersey franchisee.153
C. SEPARABILITY OFFORUM SELECTIONCLAUSE

Under The Bremen, a forum selection clause is not enforceable if it is the product of fraud,
duress, or other vices of consent or improper means. But what if the contract that contains the
clause is the product of fraud, but there is no proof that the clause itself was the product of
fraud? Is the clause enforceable in such acase?
In Prima Paint Corp. v.Flood & Conklin Manufacturing Co.,154 which involved an arbitration
clause, the Supreme Court held that if the claim is fraud in the inducement of the arbitration
clause itself the federal court may proceed to adjudicate it, but that the Federal Arbitration
Act (FAA) did not permit the federal court to consider claims of fraud in the inducement of
the contract generally.155 The Court based this holding on the language of the FAA and on the
unmistakably clear congressional purpose that the arbitration procedure, when selected by the
parties to a contract, be speedy and not subject to delay and obstruction in the courts.156 This
holding gave birth to the doctrine of severability or separability of arbitration clauses, which
the Court reaffirmed in subsequent arbitration cases.157
148. Id. at 620, quoting the intermediatecourt.
149. Id.
150. Id. at626.
151. Id. at627.
152. Id. at628.
153. Kubis, 680 A.2d at628.
154. 388 U.S. 395 (1967).
155. Id. at 40304.
156. Id. at404.
157. See Buckeye Check Cashing, Inc. v.Cardegna, 546 U.S. 440 (2006); Nitro-Lift Techs., L.L.C.v.Howard,
__U.S. ___, 133 S.Ct. 500 (2012).
461
In Scherk v.AlbertoCulver Co.,158 the Court decided to transpose this doctrine to forum
selection clauses, even though neither the FAA nor any other federal statute required the transposition. Treating arbitration and forum selection clauses alike, the Court noted that the fraud
exception in The Bremen did not mean that any time a dispute arising out of a transaction is
based upon an allegation of fraud the clause is unenforceable.159 Instead, to avoid a forum
selection clause on the grounds of fraud, a party must show that the inclusion of that clause in
the contract was the product of fraud or coercion.160
Following Scherk, lower courts have adopted this doctrine wholesale.161 This doctrine protects forum selection clauses by prevent[ing] parties from seeking to delay enforcement of the
[clause] through the advancement of frivolous claims that the underlying contract is invalid.162
It prevents an obstructionist party from gaming the system by using general allegations of fraud
as an excuse for filing suit in a non-chosen and more hospitable court. As one court put it, [t]o
allow a party to avoid its obligations under a presumptively valid contract with a prima facie
valid forum-selection clause simply because the party might carry its burden at trial would give
the party an end run around the presumption that the forum-selection clause is enforceable.163
On the other hand, not all parties resisting a forum selection clause are obstructionists.
This doctrine is unfair to parties whose consent to the whole contract was in fact obtained by
fraud or other improper means. By requiring proof that the clause itself, not just the contract
that contains it, was the product of fraud, the doctrine ignores the reality that such proof is
rarely available, if only because usually these clauses are not the object of specific negotiation.164 Thus, in practice the doctrine has the potential of rewarding parties engaging in fraud,
and penalizing the victims of fraud by forcing the latter to litigate fraudulent contracts in a
158. 417 U.S. 506 (1974).

159. Id. at 519n.14.
161. See, e.g., Riley v.Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 960 (10th Cir. 1992); Richards
v.Lloyds of London, 135 F.3d 1289, 129697 (9th Cir. 1998); Afram Carriers, Inc. v.Moeykens, 145 F.3d
298, 301 (5th Cir. 1998); Haynsworth v.The Corp., 121 F.3d 956, 963 (5th Cir. 1997); Riley v.Kingsley
Underwriting Agencies, Ltd., 969 F.2d 953, 960 (10th Cir. 1992); Rucker v.Oasis Legal Fin., L.L.C., 632
F.3d 1231 (11th Cir. 2011); Marra v. Papandreou, 59 F. Supp. 2d 65, 71 (D.D.C. 1999); REO Sales, Inc.
v. Prudential Ins. Co., 925 F. Supp. 1491, 1493 (D. Colo. 1996); Natl Indus. Grp. (Holding) v. Carlyle
Inv. Mgmt. L.L.C., 67 A.3d 373 (Del. 2013); Provence v.Natl Carriers, Inc., 360 S.W.3d 725, 729 (Ark.
2010); Ex parte Leasecomm Corp., 879 So. 2d 1156, 115859 (Ala. 2003);); In re Harris Corp., 2013 WL
2631700, at *5 (Tex. Ct. App, June 4, 2013); Brandt v.MillerCoors, LLC, 993 N.E.2d 116 (Ill. App.2013);
Salehpour v.Just ABuck Licensing, Inc., 2013 WL 5533113 (Ohio Ct. App. Oct. 7, 2013); Edge Telecom,
Inc. v.Sterling Bank, 143P.3d 1155, 1162 (Colo. App.2006); Golden Palm Hosp., Inc. v.Stearns Bank,
874 So. 2d 1231, 123536 (Fla. Dist. Ct. App.2004); AMS Staff Leasing NA, Inc. v.Superior Court, 2004
WL 1435928, at *2 (Cal. Ct. App. June 28, 2004); Holeman v.Natl Bus. Inst., Inc., 94 S.W.3d 91, 102 (Tex.
App.2002), rehg overruled (Nov. 7, 2002), review denied (Mar. 6, 2003), rehg of petition for review denied
(May 8,2003).
162.Yackee, supra note 1,at59.
163. In re Harris Corp., 2013 WL 2631700, at *5 (Tex. Ct. App, June 4, 2013) (alteration in original)
(emphasis added) (internal quotation marks omitted).
164.In Tucker v.Cochran Firm-Criminal Defense Birmingham L.L.C., 341P.3d 673 (Okla. 2014), a retainer
agreement between a law firm and an Oklahoma domiciliary for legal representation in an Oklahoma
misdemeanor trial contained a California choice-of-forum clause. In a subsequent legal malpractice
462
potentially inconvenient forum not of their choosing. Moreover, the doctrine suffers from a
certain logical incongruity. After all, if the forum selection clause is part of the contract, and
the contract is the product of fraud, the whole contract fails, and so do all of its component
parts, including the forum selection clause. From a conceptual perspective, the only way to
square this position with logic is to pretend that the forum selection clause is not part of the
contract that contains it, but instead is a separate contract, even when it is not. The proper
term for this fictionbecause it is a fictionis not the commonly used term severable or
separable, which implies the ability to be severed, but separate, which means that the clause
exists apart from the contract. If the clause is viewed as separate, then its fate is independent
from that of the contract. Thus, if the contract is invalid because of fraud, the invalidity of the
contract does not taint the clause.
The artificiality of this logic is one of the reasons that a small minority of courts have taken
a different position:they do not enforce a forum selection clause if the contract that contains
it is invalid because of fraud or similar reasons, even if there is no proof that the clause itself is
invalid.165 One of the courts that joined this minority was the Supreme Court of Utah, in a well-
reasoned decision in Energy Claims Ltd. v.Catalyst Investment Group Ltd.166 To prevent abuse,
the court also imposed two qualifications. First, the party challenging the clause must plead
with particularity the circumstances leading to the fraudulent inducement of the contract.167
Second, the trial court will have discretion to hold an evidentiary hearing on the allegations
of fraud before deciding whether to enforce the challenged clause, even if, as in this case, this
means that the parties may be forced to litigate much of their case before even exiting the
pleading stage of litigation.168
I I I . A R B I T R AT I O N CL A US ES
A. DOMESTIC INTERSTATE ARBITRATION
1.Introduction
Conflicts books do not usually cover arbitration, not even its interstate or international aspects;
and for good reason. Arbitration is a distinct, complex, and vast field, indeed another universe;
so much so, that any abbreviated coverage of it runs the risk of being too simplistic or misleading. In full awareness of this risk and with all necessary trepidation, this Section attempts to
action against the law firm, the client argued that this clause was never negotiated. He pointed to the
fact that, although several of the contractual provisions required a showing of his consent by placing his
initials, there was no place for his initials for this clause. Indeed, why would one hiring a lawyer for representation in Oklahoma agree to litigate in California?
165. See, e.g., Farmland Indus., Inc. v.Frazier-Parrott Commodities, Inc., 806 F.2d 848, 85152 (8th Cir.
1986); DeSola Grp., Inc. v.Coors Brewing Co., 199 A.D.2d 141, 14142, 605 N.Y.S.2d 83 (N.Y. App. Div.
1993); SRH, Inc. v.IFC Credit Corp., 619 S.E.2d 744, 746 (Ga. Ct. App.2005); Lamb v.MegaFlight, Inc.,
26 S.W.3d 627, 631 (Tenn. App.2000).
166. 325P.3d 70 (Utah2014).
167. Energy Claims, 325P.3dat86.
168. Id.
463
provide a very brief sketch of only some of the interstate and international aspects of American
arbitration law.169
Historically, American courts refused to enforce arbitration agreements for the same reasons they refused to enforce forum-selection clauses, namely, that such clauses ousted courts
of their jurisdiction contrary to public policy. The enactment of the Federal Arbitration Act
(FAA)170 in 1925 reversed that hostility. Over time, and thanks to the Supreme Courts expansive interpretation of the FAA, American law has become one of the most hospitable to arbitration, at least in terms of the breadth of subjects it considers susceptible to arbitration.
The FAA includes within its scope arbitration agreements in any maritime transaction or a
contract evidencing a transaction involving commerce171 (be it interstate or international) and
preempts contrary state law. Because just about everything involves commerce in the United
States,172 the foreign reader should not be surprised to find cases enforcing pre-dispute arbitration agreements subjecting to arbitration even claims arising from personal injury ordeath.
For example, in Cleveland v.Mann,173 the court held that the wrongful death claims of the
survivors of a medical malpractice victim were arbitrable under the FAA, because singular
agreements between care facilities and care patients, when taken in the aggregate, affect interstate commerce,174 even when, as in this case, the agreement is between a patient and a doctor
domiciled and practicing in the same state. The court also found that the arbitration agreement was neither procedurally nor substantively unconscionable, even though the patient was
illiterate and in pain at the time of signing and probably did not understand that one of the
many forms he signed had waived his and his heirs rights to a jury trial.175 In Marmet Health
169. From the vast literature on this field, see, e.g., G. Born, International Arbitration and Forum Selection
Agreements: Drafting and Enforcing (4th ed. 2013); G. Born, International Commercial Arbitration
(2009); T. Carbonneau & W. Butler, International Litigation and Arbitration (2d ed. 2013); J. Carter &
J. Fellas, International Commercial Arbitration in New York (2013); J.J. Coe, International Commercial
Arbitration:American Principles and Practice in a Global Context (1997); F. Ferrari & S. Krll, Conflict of
Laws in International Arbitration (2011); F. Ferrari (ed.), Forum Shopping in the International Commercial
Arbitration Context (2013); A. Lowenfeld, International Litigation and Arbitration (3d ed. 2006); P.J.
Martinez-Fraga, The American Influence on International Commercial Arbitration:Doctrinal Developments
and Discovery Methods (2009); L. Mistelis, Concise International Arbitration (2010); L.M. Moses, The
Principles and Practice of International Commercial Arbitration (2012); P.D. ONeil, International
Commercial Arbitration (2012); V. Pechota. & H. Smit, International Commercial Arbitration and the
Courts (3d rev. ed. 2002); S.I. Strong, Class, Mass, and Collective Arbitration in National and International
Law (2013); A.J.van den Berg, International Arbitration:The Coming of a New Age (2013); T. Varady, J.J.
Barcel & A.T.von Mehren, International Commercial Arbitration:ATransnational Perspective (5th ed.
2012); R. Weintraub, International Litigation and Arbitration:Practice and Planning (6th ed.2011).
170. See 9 U.S.C. 116 (2015).
171. 9 U.S.C. 2 (2015) (emphasis added).
172. The Supreme Court has interpreted the FAA as being coextensive with Congresss broad power to
regulate interstate commerce. See Allied-Bruce Terminix Cos. v.Dobson, 513 U.S. 265 (1995).
173. 942 So. 2d 108 (Miss.2006), rehg denied (Nov. 30,2006).
174. Id. at113.
175.In Dees v.Billy, 357 Fed. Appx. 813 (9th Cir. 2009), the court found that a doctor-patient dispute
was arbitrable but the arbitration clause contained in a form the patient (a Nevada domiciliary) had to
sign before being admitted for treatment at the doctors Nevada office was adhesionary and unenforceable
under Nevada law. The form also contained a California choice-of-law clause.
464
Care Center, Inc. v.Brown,176 the Supreme Court reversed and vacated a state court judgment
that ruled that the FAA did not apply to pre-dispute agreements mandating arbitration of personal injury or wrongful death claims.177 The Court stated that the FAA requires courts to
enforce the bargain of the parties to arbitrate and includes no exception for personal-injury
or wrongful-death claims.178
Moreover, unlike some foreign countries, American law has no qualms about enforcing pre-
dispute arbitration clauses in consumer contracts and certain employment contracts. Although
the FAA exempts from arbitration contracts of employment of seamen, railroad employees, or
any other class of workers engaged in foreign or interstate commerce,179 the Supreme Court
has narrowed this exception by holding that it did not encompass all employment contracts
involving commerce, but rather only those involving transportation workers.180 In Nitro-Lift
Technologies, L.L.C.v.Howard,181 the Supreme Court rebuked the Oklahoma Supreme Court
for failing to enforce an arbitration clause in an employment contract that also contained confidentiality and noncompetition clauses that were invalid under an Oklahoma statute. The state
court had held these clauses null and void, rather than leaving that determination to the arbitrator as dictated by U.S. Supreme Court precedents. In a terse per curiam decision, the U.S.
Supreme Court vacated the Oklahoma judgment, after strongly reprimanding the Oklahoma
court for disregarding applicable federal precedents:
[T]he Oklahoma Supreme Court must abide by the FAA, which is the supreme Law of the
Land.. . . It is this Courts responsibility to say what [the FAA] means, and once the Court has
spoken, it is the duty of other courts to respect that understanding of the governing rule of law.182
176. 132 S.Ct. 1201 (2012).

177. Marmet was a wrongful death action filed against a nursing home operator by the family of a person
who died during his residency at the home. The nursing home contract contained a clause mandating
individual arbitration of all claims against the nursing home operator, including claims for fraud, gross
negligence, or malpractice and resulting in personal injury or, as in this case,death.
178. Marmet, 132 S.Ct. at1203.
179. 9 U.S.C. 1 (2015).
180. See Circuit City Stores, Inc. v.Adams, 532 U.S. 105 (2001). In contracts involving international commerce, the NewYork Convention (infra) applies to all employment contracts, including those involving transportation workers. Because the Convention preempts state law, states must enforce arbitration
clauses in international employment contracts, such as those of maritime employment. For cases enforcing such clauses, even as to noncontractual issues, see Francisco v. M/T Stolt Achievement, 293 F.3d
270 (5th Cir. 2002), cert. denied, 537 U.S. 1030 (2002); Bautista v.Star Cruises, 396 F.3d 1289 (11th Cir.
2005); Lim v.Offshore Specialty Fabricators, Inc., 404 F.3d 898 (5th Cir. 2005), cert. denied, 126 S.Ct. 365
(2005); Dahiya v. Talmidge Intl Ltd., 931 So. 2d 1163 (La. Ct. App.2006), rehg denied (June 30, 2006);
Lindo v.NCL (Bahamas) Ltd., 652 F.3d 1257 (11th Cir. 2011); Singh v.Carnival Corp., 550 Fed. Appx. 683
(11th Cir. 2013), cert. denied, 134 S.Ct. 2729 (2014); Quiroz v.MSC Mediterranean Shipping Co. S.A.,
522 F.Appx 655 (11th Cir.2013).
181. 133 S.Ct. 500 (2012).
182. Id. at 503 (quotation marks omitted). The Court reminded that it is a mainstay of the [FAAs] substantive law that attacks on the validity of the contract, as distinct from attacks on the validity of the arbitration clause itself, are to be resolved by the arbitrator in the first instance, not by a federal or state court.
465
The FAA provides that arbitration agreements that fall within its scope shall be valid,
irrevocable, and enforceable. 183 However, this sentence continues with what is known as the
savings clause: save upon such grounds as exist at law or in equity for the revocation of
any contract.184 This clause allows courts to invalidate arbitration agreements under generally applicable contract defenses, such as fraud, duress, or unconscionability, but not under
defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.185 In other words, state contract law remains applicable for these
defenses, as long as it does not treat arbitration agreements less favorably than other contracts.
Thus, arbitration is an area where vertical and horizontal conflicts of laws tend to intersect and
where, increasingly in recent years, the sometimes delicate and precarious dance between state
law and federal law186 ends with federal law preempting statelaw.
2. The Supreme Courts Strong Pro-A rbitrationStance

Arbitration conducted in the United States, whether it involves international or interstate disputes, is governed by the first chapter of the FAA and differs in many respects from international arbitration. As noted earlier, the FAA preempts state law with respect to arbitration
agreements that affect interstate or international commerce. However, the savings clause
allows states to invalidate arbitration agreements under state law on the same grounds as
other contracts, such as unconscionability, fraud, or duress.187 In theory, this means that state
courts may not discriminate against arbitration agreements as compared with other contracts.
However, recent Supreme Court jurisprudence seems to demand what amounts to preferential
treatment of these agreements. The clearest example is AT&T Mobility LLC v.Concepcion.188 In
Concepcion, the Court held that the FAA preempted Californias Discover Bank rule,189 under
which California courts had held unenforceable on unconscionability grounds certain pre-
dispute class-arbitration waivers in consumer contracts. Although the savings clause allows
states to invalidate a contract on grounds of unconscionability, the Supreme Court reasoned
that the Discover Bank rule was too categorical190 and could lead to the invalidation of too
many class-arbitration waivers, thereby becoming an obstacle to the accomplishment of the
183. 9 U.S.C. 2 (2015).

185. Doctors Assocs., Inc. v.Casarotto, 517 U.S. 681, 687 (1996).
186. Kilgore v.KeyBank, Nat. Assn, 673 F.3d 947 (9th Cir. 2012), vacated, reversed, and remanded 697
F.3d 1191 (9th Cir. 2012), remanded to 718 F.3d 1052 (9th Cir.2013).
187. See supra at text accompanying note184
188. 131 S.Ct. 1740 (2011). For other recent examples, see Marmet Health Care Ctr., Inc. v.Brown, ___
U.S.___, 132 S.Ct. 1201 (2012) (reversing a West Virginia judgment that had held unenforceable a pre-
dispute arbitration clause encompassing wrongful-death claims arising from a nursing home contract);
Nitro-Lift Techs., L.L.C.v.Howard, ___U.S.___, 133 S.Ct. 500 (2012) (reversing an Oklahoma judgment
that had held unenforceable a pre-dispute arbitration clause in an employment contract that contained a
noncompete covenant prohibited by an Oklahoma statute).
189. See Discover Bank v.Superior Court, 113P.3d 1100 (Cal.2005).
190. Marmet Health Care Center, Inc. v.Brown, ___U.S.___, 132 S.Ct. 1201, 1204 (2012).
466
FAAs objectives.191 This ruling left lower courts struggling to determine what is, and what is
not, an obstacle to the FAAs objectives.192
Before we discuss some representative cases from the lower courts, it is worth noting that
the Supreme Courts preferential treatment of arbitration is evident even in cases in which the
FAA conflicts with other federal statutes. For example, in CompuCredit Corp. v.Greenwood,193
the Court held that the FAA trumped the federal Credit Repair Organizations Act, which
requires credit card companies to inform cardholders of their right to sue the company, and
prohibits any waiver of its consumer protection provisions. The Court held that the right to
sue language did not create a right to sue in court,194 and the Acts non-waiver provisions did
not amount to a contrary congressional command, which, under Supreme Court precedents,
is necessary for a federal statute to trump theFAA.
Similarly, in American Express Co. v. Italian Colors Rest.,195 the Court held that the FAA
trumped the provisions of another federal statute, the Sherman Act. As in Concepcion, the
dispute centered on the enforceability of class-arbitration waivers. The plaintiffs, restaurant
owners, sued American Express (Amex), alleging monopolistic practices in violation of Section
1 of the Sherman Act. Relying on evidence that the cost of individual arbitration would be prohibitive,196 the plaintiffs argued that upholding the class-waivers would enable the defendant
to immunize itself against private enforcement of antitrust liability and effectively deprive the
plaintiffs of the statutory protections of the antitrustlaws.
Relying on the concept of effective vindication of statutory rights derived from a dictum
in the Supreme Courts decision in Mitsubishi,197 the Second Circuit accepted the argument
and thrice ruled for the plaintiffs. Mitsubishi stated that parties may agree to prosecute statutory rights via arbitration rather than litigation, but only so long as the prospective litigant
effectively may vindicate its statutory cause of action in the arbitral forum.198 The Mitsubishi
Court had also noted in the oft-quoted footnote 19 that it would have little hesitation in condemning as against public policy an arbitration agreement that operates as a prospective
waiver of a partys right to pursue statutory remedies for antitrust violations.199 The Second
Circuit concluded that the class-arbitration waivers in Amexs contracts had precisely the effect
191. Concepcion, 131 S.Ct. at1753.

192. For discussion of state court cases, see S. Symeonides, Choice of Law in the American Courts in
2013: Twenty-Seventh Annual Survey, 62 Am. J. Comp. L. 223, 23140 (2014); S. Symeonides, Choice
of Law in the American Courts in 2012: Twenty-Sixth Annual Survey, 61 Am. J. Comp. L. 217 22137
(2013); S. Symeonides, Choice of Law in the American Courts in 2011:Twenty-Fifth Annual Survey, 60
Am. J.Comp. L. 291, 32931 (2012).
193. ___ U.S.___, 132 S.Ct. 665 (2012).
194. Id. at671.
195. ___ U.S.___, 133 S.Ct. 2304 (2013).
196. The plaintiffs evidence showed that the costs of an expert analysis, which was necessary to prove
their antitrust claims, would range from several hundred thousand to over a million dollars, whereas the
maximum recovery for an individual plaintiff would be $12,850, or $38,549 if trebled.
197. See Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U.S. 614, 636
37 (1985).
Mitsubishi is discussed infra at 47475.
198. Mitsubishi, 473 U.S.at 637 (emphasis added).
199. Id. at 637,n.19.
467
that the Mitsubishi Court had promised to condemngrant[ing] AmEx de facto immunity
from antitrust liability by removing the plaintiffs only reasonably feasible means of recovery.200
The Supreme Court reversed, finding that the Sherman Act does not guarantee an affordable procedural path to the vindication of every claim, and thus does not contain a congressional command [that] requires us to reject the waiver of class arbitration.201 Writing for the
Court, Justice Scalia acknowledged the promise of Mitsubishi footnote 19 but, seizing on the
phrase right to pursue, he limited the scope of the promise to provisions forbidding the assertion of statutory rights.202 The Court did allow for the possibility that the Mitsubishi promise
would perhaps cover filing and administrative fees attached to arbitration that are so high as
to make access to the forum impracticable.203 Nevertheless, the Court concluded: the fact
that it is not worth the expense involved in proving a statutory remedy does not constitute the
elimination of the right to pursue that remedy.204 Thus, the class-action waivers were perfectly
enforceable because they merely limit[ed] arbitration to the two contracting parties and did
not eliminate their rights to pursue their statutory remedy.205
In a sharp dissent, Justice Kagan, joined by Justices Ginsburg and Breyer, summed up the
effect of the majoritys holding as allowing the monopolist to use its monopoly power to insist
on a contract effectively depriving its victims of all legal recourse and to insulate[] itself from
antitrust liabilityeven if it has in fact violated the law.206 In a nutshell, said Kagan, the majoritys response is [t]oo darn bad.207
Too bad indeed! As one commentator noted, the effect of Italian Colors is to virtually
eliminat[e]one of the last plausible judicial limits on the enforcement of class waivers in arbitration agreements,208 and to make many low-value statutory claims unpursuable, thereby
undermining the private enforcement of federal statutes.209 The combined effect of Italian
Colors, CompuCredit, and Concepcion is a decisive blow to most class actions against companies that include arbitration and class action waivers in their contracts with consumers. One
would expect most companies to take advantage of this situation, and many have already done
so. For example, in the wake of Concepcion, [w]ireless phone companies, banks, computer
sellers, and cable companies routinely integrate arbitration agreements with class arbitration
waivers in their boilerplate language in contracts with consumers, and companies, such as
PlayStation, eBay, Xbox, Netflix, and Paypal amended their arbitration agreements to preclude
200. In re Am. Express Merchs. Litig. (Amex III), 667 F.3d 204, 211 (2d Cir. 2012), rehg en banc denied
681 F.3d 139 (2d Cir. 2012), revd by the Supreme Court decision discussed in thetext.
201. Am. Express Co. v.Italian Colors Rest., ___U.S.___, 133 S.Ct. 2304, 2309 (2013).
203. Id. at 231011.
205. Id.
206. Id. at 2313 (Kagan, J., dissenting).
207. Italian Colors, 133 S.Ct. at2313.
208. Note, Class ActionsClass Arbitration WaiversAmerican Express Co. v.Italian Colors Restaurant,
127 Harv. L.Rev. 278, 278 (2013).
209. Id. at283.
468
class processes.210 With the Supreme Court preventing states from acting, and Congress
unwilling or unable to act, consumers are left with little recourse. As the discussion in the next
Section illustrates, state courts and lower federal courts continue their efforts to level the playing field for employees and consumers.
3. The Lower Courts Efforts toLevel

thePlayingField
a.Employment Contracts
In Harris v.Bingham McCutchen LLP,211 a California employment contract contained an arbitration clause and a Massachusetts choice-of-law clause. The California employee sued the employer
for employment discrimination under a California statute. Applying Massachusetts arbitrability
law, the California court affirmed the trial courts denial of the employers motion to compel
arbitration, because the arbitration clause did not specifically include, in clear and unmistakable terms, statutory antidiscrimination claims as required by a pre-Concepcion Massachusetts
precedent. The court found that Concepcion did not preclude this holding, because a footnote in
Concepcion stated that states remain free to take steps addressing the concerns that attend contracts of adhesionfor example, requiring class-action-waiver provisions in adhesive arbitration
agreements to be highlighted.212 The court concluded that the quoted language suggests that the
U.S. Supreme Court would approve of the requirement at issue here, that contractual waivers
of statutory antidiscrimination litigation rights must be expressly stated to be enforceable.213
In Quinonez v. Empire Today,214 a contract between a national flooring company and a
California carpet installer contained an arbitration clause, a class-arbitration waiver, and Illinois
choice-of-law-and -forum clauses. The California court found that the arbitration clause was
procedurally unconscionable, inter alia, because it was buried in the 34th section of a lengthy
take-it or leave-it document written in English, which the Spanish-speaking worker could not
comprehend. The clause was also substantively unconscionable, inter alia, because it mandated
arbitration of all of the workers claims but exempted most of the employers claims. The court
refused to honor the Illinois choice-of-law clause. The court reasoned that, under California
precedents, the weaker party to an adhesion contract may seek to avoid a clause by establishing that substantial injustice would result from its enforcement or that superior power was
unfairly used in imposing the contract, and that such a clause will not be given effect if the
consent of one of the parties to its inclusion in the contract was obtained by improper means,
such as by misrepresentation, duress, or undue influence.215 The court concluded that the
210. S.R. Cole, The Federalization of Consumer Arbitration:Possible Solutions, 2013 U. Chi. Legal F. 271,
273 n.10 (2013).
211. 154 Cal. Rptr. 3d 843 (Cal. Ct. App.2013), cert denied, McCutchen v.Harris, ___ U.S.___, 134 S.Ct.
903 (2014).
212. Harris, 154 Cal. Rptr. 3d at 849 (quoting AT&T Mobility LLC v.Concepcion, 563 U.S. 333, 131 S.Ct.
1740, 1750 n.6 (2011)).
213. Id.
214. No. A134448, 2013 WL 1174141 (Cal. Ct. App. Mar. 22,2013).
215. Id. at *10 (internal citations and quotation marks omitted).
469
factors that render[ed] the Agreement unconscionable warrant the application of California
law.216
In Brown v.MHN Government Services., Inc.,217 another employment case decided under
California law because of a California choice-of-law clause, the Washington Supreme Court
concluded that Concepcion does not prevent the invalidation of arbitration agreements under
generally applicable contract defenses, such as fraud, duress, or unconscionability. The court
also found the arbitration agreement substantively unconscionable because: (1) it imposed a
much shorter deadline (six months) for initiating arbitration proceedings than the three years
provided in the applicable employment statute, (2)it allowed the employer to select three neutral arbitrators from which the employees were bound to select the final arbitrator, and (3)it
imposed a fee-shifting arrangement in violation of the applicable employment statute.218
In Flemma v. Halliburton Energy Services., Inc.,219 the New Mexico Supreme Court held
that an arbitration agreement formed in Texas was substantively unconscionable as illusory,
and thus unenforceable as contrary to New Mexico public policy. The employee had worked
for Halliburton for several years in other states and was working in Texas when Halliburton
sent him an arbitration agreement intended to be a condition for continuing employment.
The employee did not sign the agreement but continued working for Halliburton in Texas and
later in New Mexico when he was fired. He sued for retaliatory discharge. The court accepted
Halliburtons argument that the arbitration agreement was a unilateral contract, and held that,
under New Mexicos lex loci contractus rule, the agreement was concluded in Texas when the
employee continued to work for Halliburton after receiving a copy of the agreement. However,
invoking New Mexicos public policy, the court found that the arbitration agreement was unreasonably one-sided and thus unconscionable. Specifically, the agreement allowed Halliburton
unilaterally to change its terms at any time before the initiation of proceedings, including the
time after the claimarose.
b. Consumer Contracts
Gandee v.LDL Freedom Enterprises., Inc.220 and Smith v.Jem Group, Inc.,221 both decided under
Washington conflicts and substantive law, are representative of judicial efforts to protect consumers from one-sided arbitration agreements. Both cases held unenforceable arbitration
clauses contained in a debt-adjustment contract between a Washington consumer and an out-
of-state company doing business in Washington. The first case found the clause to be substantively unconscionable, whereas the second found it to be procedurally unconscionable.
216. Id.
217. 306P.3d 948 (Wash.2013).
218. The court also found that the arbitration agreement was procedurally unconscionable because it
did not specify whether the arbitration would be governed by the AAAs employment rules or instead its
commercial rules. The court held that the lower court did not abuse its discretion in refusing to sever the
unconscionable provisions and holding the whole arbitration agreement unenforceable.
219. 303P.3d 814 (N.M.2013).
220. 293P.3d 1197 (Wash.2013).
221. 737 F.3d 636 (9th Cir.2013).
470
In Gandee, the clause shortened to 30days the applicable four-year statute of limitations,
imposed a loser pays provision that violated Washingtons consumer protection statute applicable to all contracts, and required the arbitration to be held in California under conditions
ensuring that the costs and fees would exceed the amount of the consumers claim. Noting that
under Washington law, a contractual term is substantively unconscionable if it is one-sided
or overly harsh, [s]hocking to the conscience, monstrously harsh, or exceedingly calloused,222
the court held that this arbitration clause was substantively unconscionable. The court also
concluded that its holding was not contrary to Concepcion because the arbitration agreement
in that case was not substantively unconscionable and had been challenged only because it
contained a class action waiver, which was not present in this case. In Smith, the court found
that the arbitration clause was procedurally unconscionable. The clause was buried in fine print
in a 21-page contract, which also charged the consumer fees far in excess of the maximum fees
prescribed by a Washington statute. The court also concluded that the FAA did not preempt
Washingtons procedural unconscionability law because that law (1)concerned the formation
of an arbitration agreement, and (2)did not target or unduly burden arbitration.
The above cases may leave the impression that Concepcions adverse impact on consumers has not been too severe. However, as the following cases illustrate, such an assumption
would not be entirely accurate. In Mortensen v.Bresnan Communication, L.L.C., 223 a contract
between an Internet service provider and a Montana consumer contained an arbitration clause,
a class action waiver, and a New York choice-of-law clause. The consumer brought a putative class action in Montana. The trial court denied the defendants motion to compel arbitration under Montanas reasonable expectations/fundamental rights test, which required
arbitration clauses in adhesion contracts to be within a partys reasonable expectations.224
The court found that this clause failed this test because it amounted to an unknowing waiver
of the fundamental constitutional rights to trial by jury and access to courts. The Ninth Circuit
reversed, holding that the Montana test did not survive Concepcion, which interpreted the FAA
as giv[ing] preference (instead of mere equality) to arbitration provisions.225
In Credit Acceptance Corp. v. Front,226 a West Virginia court denied a motion to compel
arbitration on the ground that arbitration deprived a party of the right to jury trial, in violation
of a West Virginia consumer protection statute that prohibited waiver of its provisions. The
West Virginia Supreme Court reversed, reasoning that the trial courts holding amounted to
singling out arbitration for unfavorable treatment insofar as an arbitration agreement, by its
very nature, requires a party to surrender his or her right to litigate,227 a treatment that both
Concepcion and Marmet Health Care prohibited.
222. Gandee, 293P.3d at 1199 (internal quotation marks omitted).

223. 722 F.3d 1151 (9th Cir.2013).
224. See id. at 115657.
225. Id. at 1160 (emphasis added). The trial court had also held the New York choice-of-law clause
unenforceable, finding that NewYork law was contrary to Montanas fundamental public policy, and that
Montana had a materially greater interest than NewYork in protecting Montana consumers. The Ninth
Circuit agreed that Montana had a greater interest, but held that the federal preemption of Montanas
public policy reflected in the reasonable expectations/fundamental rights test meant that this test could
no longer serve as a reason for refusing to honor an otherwise valid choice-of-law clause.
226. 745 S.E.2d 556 (W. Va.2013).
227. Id. at570.
471
Finally, Kaneff v. Delaware Title Loans, Inc.,228 a pre-Concepcion case, is one of the most
extreme. A Pennsylvania single mother of two drove her $3,000-worth Buick for 30 miles into
Delaware and, using the Buick as collateral, borrowed $500 from a Delaware lending shop to pay
her monthly rent. The loan contract charged her an interest rate of 300percent and contained a
Delaware choice-of-law clause, as well as clauses that mandated individual arbitration, prohibited
class action arbitration, and exempted from arbitration the lenders right to seek repossession of the
Buick. After repaying a total of $842, the borrower stopped paying and the lender repossessed the
car. The borrower filed a class action against the lender in Pennsylvania federal district court. Citing
the arbitration clause, the court dismissed the action and issued an order compelling arbitration.
The Third Circuit Court of Appeals affirmed. The court noted that, although a 300percent
interest rate was permissible under Delaware law, a Pennsylvania statute not only prohibited interest rates over 6percent, but also invalidated waivers of its provisions and imposed criminal penalties and punitive damages on violators. Under these circumstances, one would expect that the
court would not hesitate to strike down both the Delaware choice-of-law clause and the arbitration clause. Instead, the court struck down only the choice-of-law clause and left to the arbitrator
the question of the unconscionability of the loan contract itself. Whether courts should place such
faith in the impartiality of arbitratorswhose livelihood depends on repeat institutional clients,
such as lenders, rather than individual borrowersis a question the Kaneff court did not address.
Indeed, as the pertinent literature confirms, the chances of success for consumers who do
go through individual arbitration are exceedingly low. The strategic and tactical advantages of
repeat players, such as credit card companies or online sellers, over single shot players, such
as consumers or employees, in individual arbitration are well known and documented,229 as is
the fact that professional arbitrators are dependent on repeat players for their livelihood. Here
are two examples:
(1) [A]n arbitrator with an arbitral organization decided nineteen cases in favor of a particular credit card company and then one in favor of the consumer; this was the last
referral that the organization made to the arbitrator;230
(2) In 2009, the National Arbitration Forum (NAF), a private arbitration provider focusing on consumer debt cases, withdrew from that market after being sued in two
lawsuits: (a) one by San Franciscos city attorney, charging that NAF was running
an arbitration mill favoring credit card companies and that of 18,075 credit card
228. 587 F.3d 616 (3d Cir.2009).

229. See, e.g., J.F. Anderson, The Viability of Multi-party Litigation as a Tool for Social Engineering Six
Decades after the Restrictive Covenant Cases, 42 McGeorge L.Rev. 765 (2011); L.B. Bingham, On Repeat
Players, Adhesive Contracts, and the Use of Statistics in Judicial Review of Employment Arbitration Awards,
29 McGeorge L.Rev. 223 (1998); P.D. Carrington, Self-Deregulation, ANational Policy of the Supreme
Court, 3 Nev. L.J. 259 (2002); S.R. Cole, On Babies and Bathwater:The Arbitration Fairness Act and the
Supreme Courts Recent Arbitration Jurisprudence, 48 Hous. L.Rev. 457 (2011); P.L. Murray, Privatization of
Civil Justice, 15 Willamette J.Intl L.& Disp. Resol. 133 (2007); J. Resnik, Fairness in Numbers:AComment
on AT&T v.Concepcion, Wal-Mart v.Dukes, and Turner v.Rogers, 125 Harv. L.Rev. 78 (2011).
230.Murray, supra note 229, at 147 (citing congressional testimony). See also id. at 148 (noting that credit
card company claims are almost always upheld by the industry-selected arbitrators, who often process
them on a wholesale basis, and make a great deal of money doing so. The result of this practice is that
thousands of citizens are being deprived of any fair opportunity to contest claims, which are in many
cases doubtful or even fraudulent.).
472
cases heard over several years, consumers won thirty times;231 and (b)another suit by
Minnesotas attorney general, charging that NAF shared a common owner with one of
the countrys largest debt collection agencies.232
One does not need more data to understand that, in the majority of cases, the choice for
consumers is not as the Concepcion majority framed it, a choice between class arbitration and
individual arbitration, but rather it is a choice between class arbitration and no remedy atall.
4. Separability ofArbitration Clause

As noted earlier, in Prima Paint Corp. v.Flood & Conklin Manufacturing Co.,233 the Supreme
Court introduced the fiction or doctrine of separability of the arbitration clause from the contract that contains it (hereafter container contract).234 This doctrine exists in many foreign
and transnational arbitration regimes, including the Uncitral Model Law,235 and has many
critics, as well as defenders.236 It operates in complex ways, not all of which can be discussed
here.237 In summary, these are some of its consequences or ramifications:
(1) The doctrine applies only if one of the parties seeks judicial intervention before the
arbitration takes place. It does not apply if neither party seeks such an intervention
(or if such intervention is unsuccessful) and the matter is before the arbitral tribunal.
231. Resnik, Fairness in Numbers, supra note 229, at109.
232.Id.
233. 388 U.S. 395, 402 (1967). See also Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445
(2006).
234. In a few cases, the arbitration agreement and the contract it purports to subject to arbitration are
in fact separate. In most cases, they are not. The following discussion deals with the latter cases, that is,
situations in which the arbitration agreement appears as a clause in the contract.
235. See Uncitral Model Law on International Commercial Arbitration, art. 16(1) (2006) ([A]n arbitration clause which forms part of a contract shall be treated as an agreement independent of the other
terms of the contract. Adecision by the arbitral tribunal that the contract is null and void shall not entail
ipso jure the invalidity of the arbitration clause.).
236.From the extensive American literature on this doctrine, see, e.g., J.J. Barcel, Who Decides the
Arbitrators Jurisdiction? Separability and Competence-Competence in Transnational Perspective, 36
Vand. J. Transnatl L. 115 (2003); G.A. Bermann, The Gateway Problem in International Commercial
Arbitration, 37 Yale J. Intl L. 1 (2012); C.R. Drahozal, Buckeye Check Cashing and the Separability
Doctrine, 1 Y.B. Arb. & Med. 55 (2009); K. Hober & A. Magnusson, The Special Status of Agreements to
Arbitrate:The Separability Doctrine; Mandatory Stay of Litigation, 2 Disp. Resol. Intl 56 (2008); A.S. Rau,
The Arbitrability Question Itself, 10 Am. Rev. Intl Arb. 287 (1999); A.S. Rau, Everything You Really Need
to Know about Separability in Seventeen Simple Propositions, 14 Am. Rev. Intl Arb. 1 (2003); A. Samuel,
Separability and the US Supreme Court Decision in Buckeye v.Cardegna, 22 Arb. Intl 477 (2006); K.M.
Scanlon, Class Arbitration Waivers:The Severability Doctrine and Its Consequences, 62 Disp. Resol. J. 40
(2007); R.H. Smit, Separability and Competence-Competence in International Arbitration:Ex Nihilo Nihil
Fit? Or Can Something Indeed Come from Nothing?, 13 Am. Rev. Intl Arb. 19 (2002); C. Svernlov, What
Isnt, Aint:The Current Status of the Doctrine of Separability, 8 J. Intl Arb. 37 (1991); S.J. Ware, Arbitration
Laws Separability Doctrine after Buckeye Check Cashing, Inc. v.Cardegna, 8 Nev. L.J. 107 (2007).
237. For example, despite the common use of the term doctrine, separability is actually a presumption,
which the parties can displace by an express contrary agreement. However, such agreements are rare. In
473
Under the doctrine of competence-competence, the tribunal is authorized to rule on

both the arbitration clause and the container contract.238
(2) The doctrine does not apply if a party challenges in court the very existence (as
opposed to the validity or enforceability) of the container contract.239 In such a case, a
decision by the court that the contract never came into existence also means that the
arbitration clause never came into existence.
(3) The doctrine applies when a party challenges in court the validity or enforceability (as
opposed to the existence) of the container contract, but not specifically the arbitration
clause itself.240 In such a case, the court will refer this general challenge to the arbitral
tribunal.241 If the tribunal finds that the container contract is invalid, its decision to
that effect is binding, because the separable arbitration clause vested the tribunal
with authority to decide thisissue.
(4) Finally, and most relevant for the purposes of this chapter, the separability doctrine
means that the arbitration clause and the container contract may be governed by
differentlaws.
B. FOREIGN ARBITRATION
1. The Supreme Courts Jurisprudence
The United States is party to two international conventions on commercial arbitration:(1)the
1958 UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards
(NewYork Convention),242 along with 148 other countries; and (2)the 1975 Inter-American
Convention on International Commercial Arbitration (Panama Convention), along with
18 other countries from the Americas.243 Both conventions are implemented by statutes
fact, by choosing a set of arbitration rules (such as the Uncitral Model Law), the parties opt (perhaps
unknowingly) for separability because most of these rules provide for such separability.
238. For extensive discussion of this doctrine, see the articles by Barcel, Berman, and Smit cited at note
236, supra. The American version of this doctrine (comptence-comptence and Kompetenz-Kompetenz
in French and German, respectively), is softer than the version accepted in some other countries such as
France. For the specifics, see Barcel, supra note 236, at 112334.
239. This distinction emerges from a dictum in Buckeye Check Cashing, Inc. v.Cardegna, 546 U.S. 440
(2006). See id. at 444 n.1. See also Granite Rock Co. v.Intl Bd. of Teamsters, 561 U.S. 287, 130 S.Ct. 2847,
285556 (2010); Rent-A-Ctr. W., Inc. v.Jackson, 561 U.S. 63, 130 S.Ct. 2772, 2778 n.2 (2010).
240. If a party challenges in court the existence or validity of the arbitration clause itself, the court decides
on the challenge. See Prima Paint Corp. v.Flood & Conklin Mfg. Co., 388 U.S. 395, 40304 (1967) ([I]f
the claim is fraud in the inducement of the arbitration clause itselfan issue which goes to the making
of the agreement to arbitratethe federal court may proceed to adjudicateit.)
241. See id. ([T]he the statutory language [of the FAA] does not permit the federal court to consider
claims of fraud in the inducement of the contract generally.).
242. See U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958,
reprinted after 9 U.S.C. 208 (2015).
243.Inter-American Convention on International Commercial Arbitration of 1975, reprinted after 9
U.S.C. 307 (2015).
474
incorporated into the FAA as chapters 2 and 3, respectively.244 When the requirements for
application of both conventions are met:(1)the Panama Convention applies if a majority of
the parties to the arbitration agreement are citizens of a state or states that are parties to that
convention, and (2)The NewYork Convention applies in all other cases.245 The balance of this
section is limited to the NewYork Convention.
The NewYork convention applies not only to arbitration awards, as its title says, but also
to arbitration agreements. The implementing federal statute confines the Conventions substantive scope to arbitration agreements or awards arising out of commercial relationships and
exempts from its territorial scope agreements or awards arising from a relationship which is
entirely between citizens of the United States unless that relationship involves property
located abroad, envisages performance or enforcement abroad, or has some other reasonable
relation with one or more foreign states.246
The Supreme Court has taken a strong pro-arbitration stance, even in cases that implicate
mandatory rules of public law.247 For example, in Scherk v. Alberto-Culver Co.,248 the Court
held enforceable an arbitration agreement between a German seller and an American buyer,
although the dispute centered on claims for violation of the Securities Exchange Act of 1934.
Equating arbitration clauses to forum selection clauses,249 which the Court had endowed with
a strong presumption of validity in The Bremen, but also relying on the FAA, the Court upheld
the arbitration clause, reasoning as follows:
The invalidation of such an agreement in the case before us would not only allow the respondent
to repudiate its solemn promise but would, as well, reflect a parochial concept that all disputes
must be resolved under our laws and in our courts. We cannot have trade and commerce
in world markets and international waters exclusively on our terms, governed by our laws, and
resolved in our courts.250
In Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,251 the Court held enforceable
a Japanese arbitration clause in a dispute between a Japanese manufacturer and a Puerto Rico
car dealer, even though the case involved counterclaims based on federal antitrust statutes. The
lower court had held to the contrary, relying on a domestic case that held that the pervasive
public interest in enforcement of the antitrust laws, and the nature of the claims that arise in
244. See 9 U.S.C. 201208 (2015) (implementing the New York Convention); 9 U.S.C. 301307
(2015) (implementing the Panama Convention).
245. 9 U.S.C. 305 (2015).
246. 9 U.S.C. 202(2015).
247. In addition to the cases discussed in the text, see Gilmer v.Interstate/Johnson Lane Corp., 500 U.S.
20 (1991) (involving claims under age discrimination laws); Shearson/Am. Express, Inc. v.McMahon, 482
U.S. 220 (1987) (involving the RICO statute).
248. 417 U.S. 506 (1974).
249. See id. at 519 (An agreement to arbitrate before a specified tribunal is, in effect, a specialized kind of
forum-selection clause that posits not only the situs of suit but also the procedure to be used in resolving
the dispute.).
250. Id., quoting The Bremen v.Zapata Off-Shore Co., 407 U.S. 1, 9 (1972).
251. 473 U.S. 614 (1985).
475
such cases, combine to make antitrust claims inappropriate for arbitration.252 Without
overruling that case but expressing intense skepticism, the Supreme Court emphasized the
international dimension of the Mitsubishi case, and concluded that:
concerns of international comity, respect for the capacities of foreign and transnational tribunals,
and sensitivity to the need of the international commercial system for predictability in the resolution of disputes require that we enforce the parties agreement, even assuming that a contrary
result would be forthcoming in a domestic context.253
After all, the Court reasoned,

By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded
by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum. It
trades the procedures and opportunity for review of the courtroom for the simplicity, informality,
and expedition of arbitration.254
While acknowledging that an international arbitral tribunal owes no prior allegiance to

the legal norms of particular states [and] hence, it has no direct obligation to vindicate their
statutory dictates, the Court opined that the tribunal should be bound to decide that dispute
in accord with the national law giving rise to the claim, and thus the claimant effectively may
vindicate its statutory cause of action in the arbitral forum.255
But then the Court had to confront the fact that the Mitsubishi contract contained a Swiss
choice-of-law clause, which the arbitral tribunal could read as encompassing the antitrust counterclaims, in addition to the contractual claims. In the famous footnote 19, the court noted that,
if the arbitration and choice-of-law clauses operated in tandem as a prospective waiver of a
partys right to pursue statutory remedies for antitrust violations, the Court would have little
hesitation in condemning the agreement as against public policy.256 However, there was no need
to decide that matter at this point, because federal courts would have the opportunity at the
award-enforcement stage to ensure that the legitimate interest in the enforcement of the antitrust
laws has been addressed and could refuse enforcement of the award on public policy grounds.257
In Vimar Seguros Y Reaseguros, S.A. v.M/V Sky Reefer,258 the underlying contract, a maritime bill of lading involving an American distributor, a Panamanian shipowner, and a Japanese
charterer, required arbitration in Tokyo under Japanese law.259 The American party opposed
arbitration, arguing that the arbitration clause was unenforceable under the FAA because
252. Am. Safety Equip. Corp. v.J.P. Maguire & Co., 391 F.2d 821, at 82728 (2d Cir.1968).
253. Mitsubishi Motors, 473 U.S.at629.
254. Id. at628.
255. Id. at 63637.
256. Id. at 637n.19.
257. Id. at637.
258. 515 U.S. 528 (1995).
259. AMoroccan supplier had sold to a NewYork distributor a shipload of oranges, to be transported
from Morocco to Massachusetts by a Panamanian-owned ship chartered to a Japanese company. When
the cargo was damaged, the NewYork distributor and its insurer sued the shipowner in Massachusetts.
476
it violated Section 3(8) of the Carriage of Goods by Sea Act (COGSA), which prohibits the
lessening of the carriers liability for fault.260 Pursuant to this section, lower courts have routinely invalidated foreign forum-selection clauses because such clauses put[] a high hurdle
in the way of enforcing liability, and thus effective[ly enables] carriers to secure settlements lower than if cargo [owners] could sue in a convenient forum.261 Lower courts have
also expressed strong doubts on whether foreign tribunals would apply [COGSA] in the same
way as would an American tribunal subject to the uniform control of the Supreme Court.262
Because foreign arbitration clauses are only a subset of foreign forum-selection clauses in general, lower courts had also invalidated such clauses under the same rationale.263
In Vimar Seguros, the Supreme Court repudiated this rationale. In an opinion by Justice
Kennedy, the Court read the above section of COGSA as prohibiting only the lessening of the
substantive liability of the carrier, without addressing the separate question of the means and
costs of enforcing that liability.264 The Court reasoned:
If the question whether a provision lessens liability were answered by reference to the costs and
inconvenience to the cargo owner, there would be no principled basis for distinguishing national
from foreign arbitration clauses. Even if it were reasonable to read 3(8) to make a distinction
based on travel time, airfare, and hotels bills, these factors are not susceptible of a simple and
enforceable distinction between domestic and foreign forums. Requiring a Seattle cargo owner
to arbitrate in NewYork likely imposes more costs and burdens than a foreign arbitration clause
requiring it to arbitrate in Vancouver.265
The Court also characterized as parochial the argument that foreign tribunals or arbitrators might not be able or willing to apply COGSA correctly. Quoting The Bremen,266 Scherk,267
Mitsubishi Motors,268 and other internationalist cases, the Courtsaid:
[T]he historical judicial resistance to foreign forum selection clauses has little place in an era
when . . . businesses . . . now operate in world markets. . . . The expansion of American business
The defendant moved to stay the action and compel arbitration in Tokyo under the bill of lading and
Section 3 of the Federal Arbitration Act (FAA), which requires courts to stay proceedings and enforce
arbitration agreements covered by theAct.
260. That section provided:Any clause relieving the carrier or the ship from liability for loss or damage to or in connection with the goods, arising from negligence, fault, or failure in the duties or obligations provided in this section, or lessening such liability otherwise than as provided in this chapter, shall
be null and void and of no effect. 46 U.S.C. 1303(8) (2015).
261. Indussa Corp. v.S.S. Ranborg, 377 F.2d 200, 203 (2d Cir. 1967)(en banc). See also Union Ins. Soc. of
Canton, Ltd. v.S.S. Elikon, 642 F.2d 721, 72325 (4th Cir. 1981); Conklin & Garrett, Ltd v.M/V Finnrose,
826 F.2d 1441, 144244 (5th Cir.1987).
262. Indussa, 377 F.2d, at 20304.
263. See State Est. for Agric. Product Trading v.M/V Wesermunde, 838 F.2d 1576, 158081 (11th Cir.
1988), cert. denied, 488 U.S. 916 (1988).
264. Vimar Seguros, 515 U.S.at534.
265. Id. at536.
266. 407 U.S. 1.1907 (1972), discussed supra at 438.
267. 417 U.S. 506 (1974).
268. 473 U.S. 614 (1985).
477
and industry will hardly be encouraged . . . if, notwithstanding solemn contracts, we insist on a
parochial concept that all disputes must be resolved under our laws and in our courts. . . . [I]f
international arbitral institutions are to take a central place in the international legal order,
national courts will need to shake off the old judicial hostility to arbitration, and also their customary and understandable unwillingness to cede jurisdiction of a claim arising under domestic
law to a foreign or transnational tribunal . . . . Aparochial refusal by the courts of one country to
enforce an international arbitration agreement would frustrate the orderliness and predictability
essential to any international business transaction.269
The Court added that [i]f the United States is to be able to gain the benefits of international
accords and have a role as a trusted partner in multilateral endeavors, its courts should be most
cautious before interpreting its domestic legislation in such manner as to violate international
agreements.270 The Court concluded that this factor counsels against construing COGSA to
nullify foreign arbitration clauses because of inconvenience to the plaintiff or insular distrust
of the ability of foreign arbitrators to apply the law.271
Finally, the Court held premature272 the plaintiff s argument that the Japanese arbitrators would not apply COGSA but rather the Japanese Hague Rules, which in fact lessen the
carriers liability for the acts or omissions of stevedores hired by the shipper. Apparently
forgetting the choice-of-law clause, the Court thought that it was mere speculation that the
foreign arbitrators might apply Japanese law,273 but noted that, because the district court
had retained jurisdiction to enforce the arbitration award, that court had the traditional
power to refuse enforcement if the award was repugnant to the public policy of the United
States.274
Justice Stevens, in a strong dissent, facetiously observed that, under the majoritys reasoning, [a]carrier who truly wished to relieve itself of liability might select an outpost in
Antarctica as the setting for arbitration of all claims,275 and could also require the consignee
to pay the costs of the arbitration, or perhaps the travel expenses and fees of the expert witnesses, interpreters, and lawyers employed by both parties.276 Justice Stevens also criticized the
majoritys failure to address the issues raised by the choice-of-law clause.277
269. Vimar Seguros, 515 U.S.at 53738 (internal quotation marks omitted).
270. Id. at539.
271. Id.
272. Id. at540.
273. Id. at541.
274. Id. at540.
275. Vimar Seguros, 515 U.S.at 551n.12.
276. Id. at551.
277. See id. at 548 (The foreign-law clause leaves the shipper open to the application of unfamiliar
and potentially disadvantageous legal standards, until he can obtain review (perhaps years later) in a
domestic forum under the high standard applicable to vacation of arbitration awards.); Id. at 549, n.1
([T]he majority is apparently willing to allow arbitration to proceed under foreign law, and to determine
afterwards whether application of that law has actually lessened the carriers formal liability.).
478
2. Law Governing theArbitration

Agreement
The question of which law governs the arbitration clause can arise in three different
phases: (1) before a court in the pre-arbitration phase, (2) before the arbitral tribunal, and
(3)before a court in the recognition of the award phase. This section discusses only the first
phase, and only for cases subject to the NewYork Convention.
The Convention does not answer the question of which law governs the arbitration agreement when it is challenged in the pre-arbitration phase. Article II(3) of the Convention requires
a requested court of a contracting state to refer the parties to arbitration, unless the court finds
that the arbitration agreement is null and void, inoperative or incapable of being performed.278
However, this provision does not designate the law under which to make this determination.
Chapter2 of the FAA, which implements the NewYork Convention, incorporates by reference, the provisions of Chapter1, which applies to domestic arbitration, but both chapters are
also silent on which law governs the arbitration agreement. Section 3 of Chapter1 provides that,
upon request, the federal court before which an issue referable to arbitration under an arbitration agreement is pending, shall refer the parties to arbitration upon being satisfied that the
issue involved in such suit or proceeding is referable to arbitration under such an agreement.279
This section too leaves unanswered the choice-of-law question. The case law is also unhelpful.
Most cases tacitly apply the lex fori, or, if they apply another law, they do not indicatewhich.
In searching for answers to the choice-of-law question, one cannot ignore Article V of the
Convention, which applies in the post-arbitration phase. That article designates the law applicable to several issues in recognizing an arbitration award, at least four of which are relevant
to the arbitration agreement:(1)capacity to enter into the agreement, (2)validity of the agreement, (3) arbitrability of the subject matter of the dispute, and (4) compatibility with public
policy. Article V provides that a court may refuse to recognize an arbitration award, interalia:
(a) if the parties to the arbitration agreement were incapable of contracting under the law
applicable to them;280
(b) if the agreement was not valid under the law to which the parties have subjected it
or, failing any indication thereon, under the law of the country where the award was
made;281
(c) if the subject matter of the dispute was not capable of settlement by arbitration under
the law of [the recognizing] country;282or
(d) if recognition or enforcement of the award would be contrary to the public policy of
[the recognizing] country.283
The question is whether Article V is capable of yielding parallel choice-of-law rules to
guide the court in resolving these same four issues in the pre-arbitration phase. The drafting
278. NewYork Convention, Art.II(3).
279. 9 U.S.C. 3 (2015).
280. NewYork Convention, Art. V(1)(a).
281. Id.
282. Id. Art. V(2)(a).
283. Id. Art. V(2)(b).
479
history of the Convention may help answer this question because it explains the incompleteness of Article II. Initially, the drafters proceeded under the assumption that the Convention
would cover only the enforcement of arbitration awards, and that a separate protocol to be
drafted later would cover the enforcement of arbitration agreements. In the closing days of the
negotiations, after realiz[ing] that such a separation could seriously hamper the effectiveness
of the new Convention, the drafters added Article II(3), which was drafted in a race against
time.284 This history explains why the Conventions title refers only to the enforcement of
awards, even though the Convention (i.e., Article II), also covers the enforcement of arbitration
agreements. This history suggests that in answering the above question, one should employ
analogical reasoning rather than a contrario arguments.
Of course, legislative history is not always clear. In this case, there is some evidence that the
drafters rejected a proposal to incorporate in Article II choice-of-law language similar to those
in Article V, because of concern[s]that a forum might then have an obligation to enforce
arbitration clauses regardless of its local law.285 If this is true, then the ambiguity in Article
II section 3 is deliberate.286 Even so, an interpretation of Article II(3) that leans in favor, rather
than against, the lex fori would be consistent with the spirit of the Convention.
The discussion below proceeds on this basis. Article V of the Convention provides the
framework within which one can construct choice-of-law rules for the pre-arbitration phase.
To remain within the spirit of the Convention, these rules should be as parallel as possible to
the rules of Article V.Specifically:
The first rule of Article V, applicable to the issue of capacity, is a rule of delegation. It
authorizes the application of whichever substantive law is applicable to that issue under
the choice-of-law rules of the recognizing forum. Aparallel rule for the pre-arbitration
phase would be to refer this issue to the choice-of-law rules of the pre-arbitrationforum.
The second rule of Article V, applicable to the validity of the arbitration agreement, is a
self-executing choice-of-law rule requiring the application of the law chosen by the parties and, in the absence of such choice, the law of the state where the award was made. To
remain within the spirit of the Convention, the same or substantially similar rule must
be followed in the pre-arbitrationphase.
The third rule of Article V authorizes the application of the substantive law of the recognizing forum for determining the arbitrability of the dispute. For reasons explained
below, a rule authorizing the application of the substantive law of the pre-arbitration
forum would not offend the spirit of the Convention.
Finally, qualifying all of the above is the catch-all public policy clause of Article V(2)(b).
It allows the recognizing forum to invoke its own public policy as the reason for refusing
to recognize an arbitration award. Aparallel rule allowing the pre-arbitration forum to
invoke its own public policy as the reason for refusing to recognize an arbitration agreement would be within the spirit of the Convention.
284. Lindo v.NCL (Bahamas), Ltd., 652 F.3d 1257, 1289 (11th Cir. 2011), Barkett, J., dissenting (quoting A.J.van den Berg, The NewYork Convention of 1958:Towards a Uniform Judicial Interpretation 9, 56
(1981)).
285. Rhone Mediterranee Compagnia Francese Di Assicurazioni E Riassicurazoni v.Lauro, 712 F.2d 50,
53 (3d Cir.1983).
286. Id.
480
a. Contractual Capacity
It is noteworthy that Article V(1)(a) of the Convention assigns the issue of the parties capacity
to enter into an arbitration agreement to the law applicable to them, rather than, for example,
to the law selected by them as the same provision does with regard to issues of validity. The
difference suggests that the Convention drafters understood and avoided the bootstrapping
problem. Unless the parties have capacity to enter into an agreement in the first place, they may
not validly choose a law to govern that agreement. After all, [s]omeone lacking the requisite
mental capacity to contract cannot assent to arbitrate anything at all.287
The Convention wisely subjects the issue of the parties capacity to the law applicable to
them under the choice-of-law rules of the recognizing forum. If, after the award has been
rendered, a court may refuse to recognize it because a party lacked capacity to enter into the
underlying agreement, then, a fortiori, a pre-arbitration court may refuse to enforce the agreement in the first place for lack of capacity under the law applicable under its own choice-of-
law rules. Thus, a rule parallel to that of Article V(1)(a) for the pre-arbitration phase would
subject this issue to the law applicable to the parties under the choice-of-law rules of the pre-
arbitration forum. Adraft of the new Restatement of the U.S. Law of International Commercial
Arbitration currently under consideration proposes such a rule.288
In most countries, capacity governed by the personal law (i.e., the law of nationality,
domicile, or habitual residence) of the party whose capacity is at stake. Along similar lines,
Section 198 of the Restatement (Second) provides that [t]he capacity of a party to contract
will usually be upheld if he has such capacity under the local law of the state of his domicile.289
b.Other Issues ofFormation ofthe

Arbitration Agreement
The need to avoid bootstrapping with regard to capacity is equally present with regard to other
issues affecting the formation, and thus the very existence, of the arbitration agreement or the
container contract, such as assent to the contract, offer and acceptance, etc. As noted earlier
in discussing separability, the Supreme Court has recognized the difference between issues
affecting the existence of a contract and issues affecting its validity or enforceability.290 The
same distinction is appropriate, if not necessary, in the context of choice of law. For the same
reasons that [a]party who attempts to compel arbitration must show that a valid agreement
to arbitrate exists,291 a party who alleges that the parties have agreed to the application of the
law of a given state (either directly or by designating that state as the place of arbitration) must
first show that such an agreement exists, and that showing must be based on a law other than
the allegedly chosen law. Subscribing to this logic, the draft Restatement provides that [i]n
287.Rau, supra note 236,at17.
288. See Restatement of the U.S. Law of International Commercial Arbitration, Tentative Draft No. 4,
2-12(c) (Apr. 17,2015).
289. Restatement (Second), 198.
290. See supra 47273.
291. InterGen N.V.v.Grina, 344 F.3d 134, 142 (1st Cir. 2003). See also Kulukundis Shipping Co., S/A,
v.Amtorg Trading Corp., 126 F.2d 978, 985 (2d Cir. 1942)(before sending any issue to arbitrators, the
court must determine whether an arbitration provision exists).
481
determining the existence of a putative international arbitration agreement or a putative contract that includes an arbitration agreement, a court applies the law governing that issue under
the choice-of-law rules of the forum.292
c.Issues ofScope, Validity, and Enforceability

(Other than Arbitrability)
Article II(3) of the Convention, which applies in the pre-arbitration phase, provides that a
court may not compel arbitration if the arbitration agreement is null and void.293 This provision encompasses typical contract defenses, such as fraud, duress, error, illegality, and
unconscionability.
However, this provision does not designate the law under which the court will determine
the validity or nullity of the agreement. Article V of the Convention, which applies in the post-
arbitration phase provides that a court may refuse recognition to an award if the underlying
arbitration agreement was not valid and assigns this determination to the law to which the
parties have subjected [the agreement] or, failing any indication thereon, under the law of the
country where the award was made.294 Extrapolating an identical choice-of-law rule for the
pre-arbitration phase would ensure that the enforcement of arbitration agreements would not
be subject to more onerous conditions than the Convention contemplates.
The question is whether it is necessary for this rule to be identical or just similar. The draft
Restatement adopts the latter position. It provides that a court determines the scope and validity of an arbitration agreement by applying:
(1) the law to which the parties have subjected the arbitration agreement;or
(2) in the absence of such a choice of law, the law of the seat of arbitration;or
(3) in the absence of a designation of the seat, the law indicated by the choice-of-law rules
of the forum.295
292. See Restatement of the U.S. Law of International Commercial Arbitration, Tentative Draft No. 4,
2-12(c) (Apr. 17, 2015). The accompanying Reporters notes provide a long list of issues to be governed
by this law, noting that challenges to the existence of the agreement may include:
(a) that there was no assent); (b)that there was no offer or acceptance; (c)that the offer was revoked
prior to acceptance; (d)that the arbitration term constituted a proposal to materially alter the contract not accepted by the resisting party thus preventing a contract from being formed; (e) that
there was a counteroffer rather than an acceptance; (f)that there was merely an agreement to agree;
(g)that there was a lack of consideration; (h)that the contract was not yet formed; (i)that there was
a lack of authority to bind the party sought to be bound; (j)that essential terms of the contract, upon
which assent depends, had not been agreed upon; (k)that the contract was superseded; and (l)that
the alleged agreement or contract was a forgery
Id. Reporters Note a (parenthetical citations omitted).
293. NewYork Convention, Art.II(3).
294. Id., Art. V(1)(a).
295.Restatement of the U.S. Law of International Commercial Arbitration, Tentative Draft No. 4,
2-13, 2-14 (Apr. 17,2015).
482
The accompanying comments add an intermediate option between options (1)and (2),
above, for those situations in which the parties did not include a choice-of-law clause
in the arbitration agreement but instead included a general choice-of-law clause in the
container contract. In such a case, the law chosen in the latter clause will determine the
scope, validity, and enforceability of the arbitration agreement,296 on the assumption that
a general contractual choice-of-law clause was intended to apply to the arbitration clause
as well.297
d.Arbitrability
It is noteworthy that Article V of the Convention singles out the issue of arbitrability
from other issues of enforceability of the arbitration agreement. Rather than assigning
arbitrability to the law chosen by the parties or a law to be selected through the choice-
of-law rules of the forum, Article V(2)(a) assigns arbitrability directly to the substantive
law of the recognizing forum.298 This differentiation is a recognition on the part of the
Convention drafters that, just like public policy, arbitrability is a matter for which the law
of the forum must have the ultimate say. If this is true in the post-arbitration phase, then, a
fortiori, it is true in the pre-arbitration phase. Under this logic, an American court should
be free to apply forum law (i.e., federal law) directly (i.e., without having to go through a
choice-of-law inquiry) in determining the arbitrability of a dispute covered by an arbitration agreement.
If nothing else, this solution avoids duplicative efforts and conserves judicial and party
resources. If the dispute is arbitrable under U.S.law, which is more liberal than most foreign
laws, but not under the implicated foreign law, the application of U.S.law in the pre-arbitration
phase will provide an assurance that an eventual award will be recognized in the United States,
barring other deficiencies. If the dispute is not arbitrable under U.S.law, but is arbitrable under
the implicated foreign law, then this solution will serve as a warning to the parties that an
eventual award will not be recognizable in the United States. In this scenario, absent an anti-
arbitration injunction, the parties may still proceed to arbitration in a foreign country and
obtain an award that will be recognizablethere.
The draft Restatement provides that [a]court determines in accordance with federal law
whether and to what extent matters are incapable of resolution by arbitration.299 However,
although the black-letter does not say so, the reference to federal law apparently includes
296. See id. 2-13, cmt. ([T]he fact that the parties did not include a choice-of-law provision in the arbitration clause itself should not be regarded as an indication that they meant to exclude application of the
chosen law to the arbitration clause. Indeed, a very strong case may be made for the notion that, absent
a choice of law in the arbitration clause itself, a general contractual choice-of-law clause was intended
to apply to the arbitration clause as well. That result is consistent with the notion that parties ordinarily
designate the applicable law through a choice-of-law clause, whether specific or general.).
297. Id.
298. See NewYork Convention, Art.V(2)(a) (providing that a court may refuse recognition of an award
if the subject matter of the dispute is not capable of settlement by arbitration under the law of that
country.)
299. Restatement of the U.S. Law of International Commercial Arbitration, Tentative Draft No. 4, 2-15
(Apr. 17,2015).
483
the rules of choice of law. The accompanying comments state that, when a foreign claim is not
arbitrable under the foreign law giving rise to it (but is arbitrable under federallaw),
[A]court in the United States may properly give effect to the foreign restriction to the extent the
forums choice-of-law rules designate the foreign law as governing . . . if the forums interests are
relatively weak and that the application of the foreign law is powerfully suggested by the facts at
hand.300
Conversely,
in the rare circumstance in which U.S.law bars arbitration of a particular statutory claim, that
limitation would not be applied to analogous claims arising under foreign law. An agreement to
arbitrate will therefore be enforced even if the dispute it embraces involves a foreign law claim
that would be non-arbitrable if brought under an analogous U.S.statute, provided it is arbitrable
under the foreign law.301
Cape Flattery Ltd. v. Titan Maritime, LLC 302 involved the question of which law governs
arbitrability when the contract contains a choice-of-law clause, in addition to an arbitration
clause. An agreement between a Bermuda corporation, whose ship ran aground on a submerged coral reef in Hawaii, and a Florida salvage company provided that [a]ny dispute arising under this Agreement was to be settled through arbitration in London under English
law. The company salvaged the ship but in the process damaged the reef. Under federal law,
the shipowner would be liable for the damage, which in this case exceeded $15million. The
shipowner sued the company for indemnification or contribution, and the company responded
with a motion to compel arbitration. The shipowner argued that, under Mitsubishi, federal
law determined the arbitrability of this dispute, and, under that law, the indemnification dispute was not arbitrable. The salvage company argued that, under Volt Information Sciences,
Inc. v. Board of Trustees,303 the question of arbitrability should be determined under the law
designated in the choice-of-law clause, here Englishlaw.
The court acknowledged that the Supreme Court has not resolved this question but concluded that Volt was the more pertinent precedent. This meant that non-federal arbitrability
law may determine arbitrability, but only if the parties clearly and unmistakenly expressed
their intent to that effect. The court concluded that the phrase arising under the agreement
in the arbitration/choice-of-law clause was ambiguous, and that under applicable precedents it
should be interpreted narrowly. Applying this test, the court found that, although the parties
had agreed that English law would govern the arbitrable parts of their dispute, the parties had
not agreed that English law would also determine which parts were arbitrable and hence they
did not displace federal arbitrability law. Applying federal arbitrability law, the court held that
this dispute was not arbitrable because the phrase arising under encompassed only matters
300. Id. cmt.c.

301. Id.
302. 647 F.3d 914 (9th Cir. 2011), cert. denied, ___U.S. ___, 132 S.Ct. 1862 (2012).
303. 489 U.S. 468 (1989).
484
pertaining to the interpretation and performance of the contract and not, as in this case, a tort
that occurs during the performance of the contract.304
e.PublicPolicy
The same solution as the one suggested above for the issue of arbitrability (namely the direct
application of the substantive law of the forum in the pre-arbitration phase) is also appropriate,
if not necessary, for the issue of public policy. The fact that Article V of the Convention allows
the recognizing forum to invoke its own public policy as the reason for refusing to recognize an
arbitration award suggests that the Convention would not be offended if the forum invokes its
public policy as the reason for refusing to enforce an arbitration agreement. The Supreme Court
seems to have accepted this argument in Mitsubishi by recognizing the role of the forums public
policy is the pre-arbitration phase. In the prospective-waiver dictum in the famous footnote 19,
the Court noted that in the event the choice-of-forum and choice-of-law clauses operated in
tandem as a prospective waiver of a partys right to pursue statutory remedies for antitrust violations, we would have little hesitation in condemning the agreement as against public policy.305
In Vimar Seguros, the Court did not disavow this use of public policy, although it found that its
use in that particular case was premature.306 The Court noted that, because the district court
had retained jurisdiction to enforce the arbitration award, that court had the traditional power
to refuse enforcement if the award was repugnant to the public policy of the United States.307
Although some lower cases accept the notion that the forums public policy is a valid
ground for refusing to enforce an arbitration agreement subject to the Convention,308 other
cases invoke the prematurity logic in refusing to strike down such agreements.309 However, the
fact that a court concludes that the use of public policy is premature in a particular case does
not mean that its use is generally impermissible. Moreover, in some of these cases, the prematurity argument is too simplistic, if not misguided.
Lindo v. NCL (Bahamas) Ltd.310 and Aggarao v. MOL Ship Management Co. Ltd.311 illustrate this point. Lindo was a Jones Act action312 filed by a Nicaraguan crewmember against a
Miami-based shipowner and arising out of injury the plaintiff sustained while working on the
304.For another case involving English arbitration and choice-of-law clauses, see Tang Chung Wah
v. Grant Thornton Intern. Ltd., No. 1131808-U, 2014 WL 4249877 (Ill. App. Aug. 27, 2014) (applying
Illinois law to determine arbitrability because the English choice-of-law clause was generic).
305. Mitsubishi Motors Corp. v.Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n.19 (1985).
306. Vimar Seguros y Reaseguros, S.A.v.M/V Sky Reefer, 515 U.S. 528, 540 (1995).
307. Id. at540.
308. See, e.g., Thomas v.Carnival Corp., 573 F.3d 1113 (11th Cir. 2009); Alcalde v.Carnival Cruise Lines,
798 F.Supp.2d 1314 (S.D. Fla. 2011); Dumitru v.Princess Cruise Lines, Ltd., 732 F.Supp.2d 328 (S.D.N.Y.
2010); Krstic v.Princess Cruise Lines, Ltd. (Corp), 706 F.Supp.2d 1271 (S.D. Fla.2010).
309. See Aggarao v. MOL Ship Management Co. Ltd., 675 F.3d 355 (4th Cir. 2012); Lindo v. NCL
(Bahamas), Ltd., 652 F.3d 1257 (11th Cir. 2011); Bautista v.Star Cruises 396 F.3d 1289 (11th Cir. 2005);
Francisco v.M/T Stolt Achievement, 293 F.3d 270 (5th Cir. 2002), cert. denied, 537 U.S. 1030 (2002); Lim
v.Offshore Specialty Fabricators, Inc., 404 F.3d 898 (5th Cir. 2005), cert. denied, 546 U.S. 826 (2005).
310. 652 F.3d 1257 (11th Cir.2011).
311. 675 F.3d 355 (4th Cir.2012).
312. See 46 U.S.C. 30104 (2015).
485
defendants cruise ship. The standard employment contract provided that any claims arising
under the employment, including Jones Act claims, were subject to mandatory arbitration in
the seamans home country, here Nicaragua, under the law of the country of the ships flag. The
ship carried the flag of the Bahamas, which was a flag of convenience. In response to the ship
owners motion to compel arbitration, the plaintiff invoked the prospective-waiver dictum in
Mitsubishi, arguing the contract was void as against public policy because it operated as a prospective waiver of his Jones Act claim. The plaintiff argued that:(1)under Lauritzen-Rhoditis,313
the Jones Act was applicable because the shipowner had an American base of operations and
the ship sailed repeatedly to and from American ports; (2) the application of Bahamian law
would amount to a denial of his Jones Act claims; and (3)there would be no opportunity for
subsequent review of the award because the district court had dismissed his action. Thus, if
the arbitrator were to rule against him, there would be no award and thus no opportunity for
judicial scrutiny of the award. In other words, there would be no second round.
The Eleventh Circuit rejected the argument, notingthat
[E]ven if a zero-dollar arbitral award is entered, when a defendant seeks to have the zero-dollar
arbitral award recognized and enforced by the district court against the plaintiff, the district
court then would be able to perform an Article V analysis and either enforce the award or refuse
enforcement based on an available Article V affirmative defense under the Convention, including
public policy.314
The court held that:(1)the fact that the plaintiff asserted a statutory Jones Act claim did not
affect the strong presumption in favor of enforcement of the choice clauses in his Contract;315
(2)the plaintiff s public policy defense was not a ground of invalidating the arbitration agreement under Article II of the Convention, but rather a defense to the enforcement of the award
under Article V of the Convention;316 and (3)even if the public policy defense was not premature at this stage, it would be meritless because the remedies provided by Bahamian law were
not clearly inadequate, even if they were arguably less generous than those of the Jones Act.317
As is often the case, this decision was the last opportunity for an American court to hear
the plaintiff s arguments. There was never a second round; no arbitration award was sought
to be enforced in the United States. Indeed the chances of a second round are slim. If the
defendant prevails in the foreign arbitration, he will have no reason to seek enforcement of
the zero-dollar award in the United States. If the plaintiff prevails but the amount is meager,
the plaintiff may not seek to vacate the award in the United States. The Convention provides
that only the courts of the country in which, or under the law of which, the award was made
(here Nicaragua) has jurisdiction to set aside the award.318 The American court may simply
313. See Lauritzen v. Larsen, 345 U.S. 571 (1953); Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970).
See also S. Symeonides, Maritime Conflicts of Law from the Perspective of Modern Choice of Law
Methodology, 7 Marit. L. 223 (1982).
314. Lindo, 652 F.3d at1279.
315. Id. at1276.
316. Id. at 127678, 128082.
317. Id. at 128386.
318. See NewYork Convention, Art. V(1)(e); Art.VI.
486
confirm the award, or refuse to enforce it on public policy grounds (or for one of the grounds
restrictively enumerated in Article V of the Convention), but only if the prevailing party seeks
to enforce the award in the United States.
In Aggarao v. MOL Ship Management Co. Ltd.,319 a virtually identical case, the plaintiff
was fortunate to get a second round. Amaritime employment contract between a foreign ship
operator and a Filipino crewmember required arbitration in the Philippines under Filipino
law. The crewmember was severely injured while working on the ship, which was docked at
an American port. The Fourth Circuit held that the plaintiff s personal injury claims under
the Jones Act were subject to arbitration under the Convention Act. The plaintiff invoked the
prospective-waiver dictum in Mitsubishi, arguing that, because of the Filipino choice-of-
law clause, the Filipino arbitrators would apply Filipino law and thereby deprive him of his
federal statutory rights under the Jones Act and the Seamans Wage Act. The Fourth Circuit
gave the same prematurity response that the Supreme Court gave to a similar argument in
Vimar Seguros: [The plaintiff] is not entitled to interpose his public policy defense, on the
basis of the prospective waiver, doctrine until the second stage of the arbitration-related court
proceedingsthe award-enforcement stage.320 After all, the court noted, [i]t is possible that
the Philippine arbitrator(s) will apply United States law.321
The parties proceeded with arbitration in the Philippines. Relying on the choice-of-law
clause as well as on Filipino statutory law, the arbitrator held that U.S. law was inapplicable
and rendered a meager award for the seaman. The plaintiff filed a motion to vacate the award
in federal district court in Maryland, while the defendant filed a motion to confirm it. After
noting that the Convention did not allow a motion to vacate a foreign award, the district court
decided to treat the plaintiff s motion as a motion to refuse to recognize the award.322 The
court granted the motion, after finding that, by denying the plaintiff s statutory rights under
U.S.law and confining him to the meager compensation provided by Philippines law, the award
violated U.S. public policy and was therefore unenforceable. In the courts words, the award
transgressed this countrys strong and longstanding policy of protecting injured seafarers and
providing them special solicitude.323
These cases suggest that, although Article II of the Convention does not specifically authorize the use of the forums public policy as a ground for refusing to enforce an arbitration agreement, the Convention does not prohibit such a use. The draft Restatement adopts this solution.
It provides that [a]court determines in accordance with federal law whether enforcement
of an international arbitration agreement violates public policy.324 Importantly, this time the
comments do not negate the black letter by including the forums choice-of-law rules within
the term federallaw.
319. 675 F.3d 355 (4th Cir.2012).

320. Id. at373.
321. Id. at 373 n.16 (emphasis added).
322. See Aggarao v.MOL Ship Mgmt. Co., Ltd., Civil No. CCB093106, 2014 WL 3894079, at *1 n.5
(D. Md. Aug. 7,2014).
323. Id. at*14.
324. Restatement of the U.S. Law of International Commercial Arbitration, Tentative Draft No. 4, 2-16
(Apr. 17,2015).
487
3. Law Applicable inArbitration

The parties, as well as the arbitrators, have wide power to choose the substantive (as well as the
procedural) law to be applied by the arbitrators.325 All relevant international instruments confirm this power. For example, the International Arbitration Rules of the American Arbitration
Association (AAA) provide that the arbitral tribunal shall apply the substantive law(s) or
rules of law designated by the parties as applicable to the dispute, and that, in the absence
of such a designation, the tribunal shall apply such law(s) or rules of law as it determines to
be appropriate.326 The Uncitral Arbitration Rules,327 the rules of the International Chamber
of Commerce (ICC),328 as well as many other international rules around the world,329 contain
virtually identical provisions.
The parties exercise this power quite frequently. For example, according to a recent study,
in 88percent of the cases referred to ICC arbitration in 2012, the parties had chosen the applicable substantive law.330 The breadth of the parties power to choose the applicable law is evident not only from the fact that they may choose the law of a state that has no connection with
the case,331 but also from the fact that they may choose nonstate or anationallaw.
As the above-quoted AAA rule states, the parties may designate the substantive law(s) or
rules of law as applicable to the dispute.332 The quoted phrase may appear tautological to the
uninitiated, but it is not. The term rules of law is a relatively new term of art introduced in the
1990s to describe a certain type of norms, also referred to as the new Lex Mercatoria, that do not
emanate from any sovereign. Although some of these norms are drafted by intergovernmental
325. For extensive discussions of this issue, see M. Blessing, Choice of Substantive Law in International
Arbitration, 14(2) J. Intl Arb. 39 (1997); C.G. Buys, The Arbitrators Duty to Respect the Parties Choice
of Law in Commercial Arbitration, 79 St. Johns L.Rev. 59 (2005); J. Thrope, A Question of Intent:Choice
of Law and the International Arbitration Agreement, 54 Disp. Resol. J. 16 (1999); J.B. Tieder, Factors to
Consider in the Choice of Procedural and Substantive Law in International Arbitration, 20(4) J. Intl Arb.
393 (2003); B. Wortmann, Choice of Law by Arbitrators:The Applicable Conflict of Laws System, 14 Arb.
Intl 97 (1998).
326. American Arbitration Association, International Arbitration Rules, Art. 31(1) (2014).
327. See Uncitral Arbitration Rules, Art. 35(1) (as revised in 2010)(The arbitral tribunal shall apply
the rules of law designated by the parties as applicable to the substance of the dispute. Failing such designation by the parties, the arbitral tribunal shall apply the law which it determines to be appropriate.).
328. See ICC Arbitration Rules, Art. 21(1) (2012) (The parties shall be free to agree upon the rules of law
to be applied by the arbitral tribunal to the merits of the dispute. In the absence of any such agreement,
the arbitral tribunal shall apply the rules of law which it determines to be appropriate.).
329. See, e.g., London Court of International Arbitration (LCIA) Rules, Art. 22.3 (2014); Swiss Rules of
International Arbitration, Art. 33 (2012); Stockholm Chamber of Commerce (SCC) Rules, Art. 22(1)
(2010); World Intellectual Property Organization (WIPO) Rules, Art. 59(a) (2014); International Institute
for Conflict Prevention & Resolution, Inc., International Administered Arbitration Rules, R.10 (2015).
330. See T.H. Webster & M.W. Bhler, Handbook of ICC Arbitration Commentary, Precedents, Materials
21-4 (3d ed. 2015). In 16.95percent of these cases, the parties chose English law, in 13.43percent, they
chose Swiss law, and in 9.78percent, they chose U.S.law.Id.
331. Compare with Restatement (Second) 187(2) , which requires that the state whose law is chosen
must have a substantial relationship or that there must be another reasonable basis for the parties
choice.
332. AAA International Arbitration Rules, Art. 31(1) (2014) (emphasis added).
488
bodies such as Unidroit333 and Uncitral,334 others are drafted by private nongovernmental
bodies without any popular participation or approbation, and express the views and predilections of those who draft them. Some of those bodies, such as the Lando Commission,335
consist of impartial academics with the purest of intentions, but others are far from disinterested.336 For example, in the United States, nonstate norms are drafted, inter alia, by the AAA,
the New York Stock Exchange (NYSE), the American Stock Exchange (AmEx), the National
Association of Securities Dealers (NASD), banking clearing houses, credit-card associations,
commodities merchants such as diamond dealers, grain merchants, and cotton merchants, and,
more recently, Internet service and domain providers.337
If these norms were applicable only to disputes between their drafters, for example, grain
merchants or diamond dealers, there would be little reason for concern. However, many of
these norms, such as those drafted by credit-card associations, are applicable to cardholders
who had no participation or input in the drafting of those norms. It is not unreasonable to
assume that, in drafting these norms, the association was not overly solicitous of the interests
of the cardholders. The fact that arbitration awards are subject to minimal judicial scrutiny
aggravates such concerns.
The AAA Rules, and all the international rules cited above, provide that, in the absence of a
choice-of-law clause, the arbitration tribunal shall apply such law(s) or rules of law as it determines to be appropriate.338 This determination-known as voie directe-n
eed not go through
the choice-of-law rules of the seat of arbitration or of any other state. But the tribunal must
identify the law or rules upon which it bases its decision. This is the difference between a voie
directe and amiable composition, which allows the tribunal to decide the dispute without any
reference to any law or rules. All of the Rules considered here provide that the tribunal shall
333.See Unidroit Principles of International Commercial Contracts (2004), available at http://www.

unidroit.org/english/principles/contracts/main.htm. For authoritative commentary, see M. Bonell, An
International Restatement of Contract Law:The Unidroit Principles of International Commercial Contracts
(3d ed.2005).
334. See http://www.uncitral.org/uncitral/en/uncitral_texts.html. (last visited on Nov. 19,2015).
335. See Principles of European Contract Law (1999), available at http://frontpage.cbs.dk/ law/commission on_european_contract_law. For authoritative commentary by the principal drafters, see O. Lando
& H. Beale (eds.), The Principles of European Contract Law, Parts Iand II (1999); O. Lando, E. Clive, A.
Prm & R. Zimmermann (eds.), Principles of European Contract Law, Part III (2003).
336. Although this term is neither accurate nor neutral, it has prevailed in the arbitration literature and
beyond. The term cannot be accurate because, if these norms are really rules of law, then they should
possess the same attributes as real rules of law, such as the rules of a statute. They do not. They lack the
attributes of statutory, judge-made, or customary rules. They do not emanate from the collective will of
the people formally expressed through the ordinary, and nowadays democratic, legislative process; they
do not result from the pronouncements of the judiciary; and they do not qualify as custom (i.e., a usually spontaneous practice repeated for a long time (longa consuetudo) and generally accepted as having
acquired the force of common and tacit consent (opinio juris)). See E. Kadens, The Myth of the Customary
Law Merchant, 90 Tex. L.Rev. 1153 (2012) Cf. L. Blutman, In the Trap of a Legal Metaphor:International
Soft Law, 59 Int. & Comp. L.Q. 605 (2010).
337. For citations, see S.Symeonides, Party Autonomy and Private Law-Making in Private International
Law:The Lex Mercatoria That Isnt, in Festschrift fr Konstantinos D.Kerameus 1397 (2009).
338. AAA International Arbitration Rules, Art. 31(1) (2014).
489
decide as amiable compositeur or ex aequo et bono only if the parties have expressly authorized
the arbitral tribunal to do so.339
In any case, the tribunals choice-of-law determination as such is virtually immune from
judicial review. Article V of the New York Convention, which lists the grounds for not recognizing an arbitral award, does not include among them an erroneous choice of law or, for
that matter, any error or misapplication of law. To be sure, there is always the possibility of the
public policy exception of Article V.2(b), but this exception, although often invoked, rarely
succeeds. It may succeed only upon a showing of some specific and serious defect beyond the
mere fact that the tribunal chose to apply the wrong law. As the Fifth Circuitnoted,
The public policy defense is to be construed narrowly to be applied only where enforcement
would violate the forum states most basic notions of morality and justice. The general pro-
enforcement bias informing the convention . . . points to a narrow reading of the public policy
defense. Erroneous legal reasoning or misapplication of law is generally not a violation of public
policy within the meaning of the NewYork Convention.340
Cases following this standard and rejecting the public policy exception are too numerous
to count.341 The Draft Restatement echoes this standard:
[P]ublic policy is interpreted in light of the presumption in favor of effectuating awards. To overcome the presumption, the award must violate a policy that is well-defined, deeply held, and
rooted in basic notions of morality and justice. Public policy is not offended, for example, simply
339. Uncitral Arbitration Rules, Art. 35(2) (as revised in 2010). See also AAA International Arbitration
Rules, Art. 31(3) (2014); ICC Arbitration Rules, Art. 21(3) (2012); London Court of International
Arbitration (LCIA) Rules, Art. 22.4 (2014); Swiss Rules of International Arbitration, Art. 33(2) (2012);
Stockholm Chamber of Commerce (SCC) Rules, Art. 22(3) (2010); World Intellectual Property
Organization (WIPO) Rules, Art. 59(a) (2014); International Institute for Conflict Prevention &
Resolution, International Administered Arbitration Rules, R.10(3) (2015).
340. Karaha Bodas Co., L.L.C.v.Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274,
306 (internal quotations omitted) (5th Cir. 2004), cert. denied, 543 U.S. 917 (2004).
341. See Banco de Seguros del Estado v.Mut. Marine Office, Inc., 344 F.3d 255, 264 (2d Cir. 2003)(the
public policy exception of Article V(2)(b) is to be interpreted narrowly, to apply to situations where the
contract as interpreted by the arbitrators would violate some explicit public policy that is well defined
and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. (citation omitted)); Europcar Italia, S.p.A.v.Maiellano
Tours, Inc., 156 F.3d 310, 315 (2d Cir. 1998)(The public policy exception should be applied only where
enforcement would violate our most basic notions of morality and justice (citation and quotation marks
omitted); Parsons & Whittemore Overseas Co. v.Societe Generale de LIndustrie du Papier, 508 F.2d 969,
97374 (2d Cir. 1974) (an expansive construction of this defense would vitiate the Conventions basic
effort to remove preexisting obstacles to enforcement, and tempt foreign courts to frequently accept
it as a defense to enforcement of arbitral awards rendered in the United States.); Waterside Ocean Nav.
Co. v.Intl Nav. Ltd., 737 F.2d 150, 152 (2d Cir. 1984); Fotochrome, Inc. v.Copal Co., 517 F.2d 512, 516
(2d Cir. 1975); Belize Social Dev. Ltd. v.Government of Belize, 5 F.Supp.3d 25 (D.D.C. 2013); Coutinho
Caro & Co. U.S.A., Inc. v.Marcus Trading, Inc., 2000 WL 435566 (D. Conn. 2000); Hewlett-Packard, Inc.
v.Berg, 867 F.Supp.1126 (D. Mass. 1994); Karen Maritime Ltd. v.Omar Intern., Inc., 322 F.Supp.2d 224
(E.D.N.Y. 2004); La Societe Nationale Pour La Recherche, La Prod., Le Transp., La Transformation et la
Commercialisation Des Hydrocarbures v.Shaneen Natural Res. Co., 585 F.Supp.57, 63 (S.D.N.Y. 1983);
Natl Oil Corp. v.Libyan Sun Oil Co., 733 F.Supp.800 (D. Del. 1990); SEI Societa Esplosivi Industriali SpA
490

because an award misapplies governing law or gives effect to a law or policy at variance with
U.S.law or U.S.foreign policy, provided that the award does not require contractual performance
or other acts that violate U.S.public law. Nor is public policy properly implicated merely because
the arbitral tribunal . . . applied a rule of law different from U.S.law or the law that a U.S.court
would have applied to the dispute.342
The manifest disregard of the law exception, which American courts have developed for
non-Convention awards,343 is equally unhelpful in a choice-of-law challenge. Besides being
inapplicable to Convention awards,344 this exception too presupposes a very high threshold. It
requires willful inattentiveness to governing law going beyond error or misunderstanding.345
The record must show that the arbitrators knew the law and explicitly disregarded it.346 An
award that remains below this threshold will not be vacated solely on the ground that it made
the wrong choice of law. As the Second Circuitnoted:
[The exception] clearly means more than error or misunderstanding with respect to the law. The
error must have been obvious and capable of being readily and instantly perceived by the average
person qualified to serve as an arbitrator. Moreover, the term disregard implies that the arbitrator appreciates the existence of a clearly governing legal principle but decides to ignore or pay no
attention to it. . . . Judicial inquiry under the manifest disregard standard is therefore extremely
limited. The governing law alleged to have been ignored by the arbitrators must be well defined,
explicit, and clearly applicable.347
v.L-3 Fuzing and Ordnance Systems, Inc., 843 F.Supp.2d 509 (D. Del. 2012), appeal dismissed (3d Cir.
12-1754, July 16, 2012);Telenor Mobile Commcns AS v.Storm LLC, 524 F.Supp.2d 332 (S.D.N.Y. 2007),
affirmed 584 F.3d 396 (2d Cir. 2009); Yukos Capital S.A.R.L.v.OAO Samaraneftegaz, 963 F.Supp.2d 289
(S.D.N.Y. 2013), aff d 592 Fed. Appx. 8 (2d Cir.2014).
342. Restatement of the Law Third, The U.S. Law of International Commercial Arbitration 4-18, cmt. b
(Tentative Draft No. 2, Apr. 16,2012).
343. This exception is derived from a dictum in Wilko v.Swan, 346 U.S. 427, 43637 (1953).
344. See Telenor Mobile Commcns AS v.Storm LLC, 584 F.3d 396 (2d Cir. 2009); Brandeis Intsel Ltd.
v.Calabrian Chems. Corp., 656 F.Supp.160 (S.D.N.Y. 1987); Intl Trading & Indus. Inv. Co. v.DynCorp
Aerospace Tech., 763 F. Supp. 2d 12 (D.D.C.2011); SEI Societa Esplosivi Industriali SpA v. L-3 Fuzing
& Ordnance Sys., Inc., 843 F.Supp.2d 509 (D. Del. 2012); Intl Standard Elec. Corp. v.Bridas Sociedad
Anonima Petrolera, Indus. Y Comercial, 745 F.Supp.172 (S.D.N.Y.1990).
345. ARW Exploration Corp. v.Aguirre, 45 F.3d 1455, 1463 (10th Cir.1995).
346. Bowen v.Amoco Pipeline Co., 254 F.3d 925, 932 (10th Cir.2001).
347. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d 930, 93334 (2d Cir. 1986) (citations omitted). See also Dominion Video Satellite, Inc. v. Echostar Satellite L.L.C., 430 F.3d 1269 (10th
Cir. 2005)(manifest disregard of law means willful inattentiveness to governing law going beyond error
or misunderstanding; merely erroneous interpretations or applications of law are not reversible.); First
Interregional Equity Corp. v. Haughton, 842 F. Supp. 105 (S.D.N.Y. 1994) (manifest disregard of the
law means more than error or misunderstanding with respect to the law, rather, arbitrator must appreciate existence of clearly governing, well-defined, explicit legal principle and decide to ignore or pay no
attention to it.); Sidarma Societa Italiana Di Armamento Spa, Venice v. Holt Marine Indus., Inc., 515
F. Supp. 1302 (S.D.N.Y. 1981), aff d 681 F.2d 802 (2d Cir. 1981) (there must be something beyond and
different from mere error in law or failure on part of arbitrators to understand or apply law; it must
491
It is no wonder that efforts to vacate arbitration awards [on this ground] met an almost
total lack of success.348 Thus, it is no exaggeration to say that, as far as choice of law is concerned, arbitrators get a virtual blank check. As the authors of a standard treatise observed,
whereas the effectiveness of the choice of governing law made by the parties is liable to be
restricted in some respects, that of the choice made by the arbitrators is virtually unlimited.349
be demonstrated that majority arbitrators deliberately disregarded what they knew to be law in order
to reach result they did). Sheet Metal Workers Intern. Assn, Local 15 AFL-CIO v. Law Fabrication,
LLC, 459 F. Supp. 2d 1236 (M.D. Fla. 2006) (This ground for vacating an arbitration award requires
clear evidence that the arbitrator was conscious of the law and deliberately ignore[d]it. A showing
that the arbitrator merely misinterpreted, misstated, or misapplied the law is insufficient. Id. at 1243
(internal quotations and citations omitted)). For additional authorities and discussion, see C. Drahozal,
Codifying Manifest Disregard, 8 Nev. L.J. 234 (2007); S.L. Hayford, Reigning in the Manifest Disregard
of the Law Standard: The Key to Stabilizing the Law of Commercial Arbitration, 1998 J. Disp. Resol.
117 (1998); J. M., Gaitis, Clearing the Air on Manifest Disregard and Choice of Law in Commercial
Arbitration: A Reconciliation of Wilko, Hall Street, and Stolt-Nielsen, 22 Am. Rev. Intl Arb. 21 (2011);
N.S. Posner, Judicial Review of Arbitration Awards: Manifest Disregard of the Law, 64 Brook. L. Rev.
471 (1998); H. Smit, Manifest Disregard of the Law in the NewYork Court of Appeals, 15 Am. Rev. Intl
Arb. 315 (2004); See also The Manifest Disregard of Law Doctrine and International Arbitration in
NewYork, Report by the Committee on International Commercial Disputes of the Association of the Bar
of the City of NewYork (Sept. 2012), available at http://www2.nycbar.org/pdf/report/uploads/20072344-
ManifestDisregardofLawDoctrineandInternationalArbitrationinNewYork.pdf.
348. Brandeis Intsel Ltd. v.Calabrian Chems. Corp., 656 F.Supp.160, 163 (S.D.N.Y.1987).
349.Fouchard, Gaillard, & Goldman on International Commercial Arbitration 865 (E. Gaillard & J.
Savage eds.,1999).
t w e lv e
Insurance Conflicts
Insurance conflicts have earned their classification in a separate category, not only because of
their sheer numbers, but also because they possess characteristics of both contract and tort.
Even when the dispute is confined to the insurance contract and involves only the insured and
the insurer, the outcome likely will have ramifications on third parties, such as those injured
by the insured, and, to some extent, their respective states. For example, when the disputed
issue is whether the insurance contract is susceptible to a reading that would provide coverage for punitive damages, the issue appears to be merely one of contract interpretation, but
its resolution also implicates certain tort policies, such as deterring the type of misconduct
that evokes the imposition of punitive damages. Likewise, when the dispute is whether the
insurance contract obligates the insurer to pay for cleaning up environmental contamination caused by the insured, the resolution of that dispute affects not only the insurer and the
insured, but also the environmental and economic well-being of the state in which the contaminated site is located.
Because insurance conflicts involve public interests in addition to those of the contracting
parties, insurance contracts are highly regulated. This regulation often includes the choice-of-
law dimension. Many substantive state statutes contain localizing provisions that mandate
the statutes application to insurance contracts having certain enumerated contacts with the
enacting state.1 For example, a Texas statute providesthat
[a]ny contract of insurance payable to any citizen or inhabitant of this State by any insurance
company . . . doing business within this State shall be . . . governed by [the laws of this State] notwithstanding such . . . contract . . . may provide that the contract was executed and the premiums
. . . should be payable without this State.2
An Alabama statute provides that [a]ll contracts of insurance, the application for which
is taken within this state, shall be deemed to have been made within this state and subject to
1.For extensive documentation and discussion of localizing provisions and localized statutes in
international conflicts law, see Symeonides, Codifying Choice of Law 294299.
2. Tex. Ins. Code Ann. 21.42 (2015).
493
494
the laws thereof.3 North and South Carolina have an identical statute providing that [a]ll
contracts of insurance on property, lives, or interests in this State shall be deemed to be made
therein, and all contracts of insurance the applications for which are taken within the State
shall be deemed to be made within this State and are subject to the laws thereof.4 Statutes in
several other states contain similar provisions.5
Some of these localizing provisions take the further step of expressly prohibiting the contractual choice of another states law. For example, an Oregon statute provides that, in an
insurance policy delivered or issued for delivery in [Oregon], any condition, stipulation or
agreement requiring such policy to be construed according to the laws of any other state or
country shall be invalid.6 Similarly, an Arizona statute providesthat:
No policy delivered or issued for delivery in this state and covering a subject of insurance resident,
located or to be performed in this state, shall contain any condition, stipulation or agreement ...
[r]equiring the policy to be construed according to the laws of any other state or country[.]7
Despite their location in substantive statutes (and despite variations in content and wording), all of these localizing provisions qualify as choice-of-law rules, albeit of the unilateral type.
Aunilateral choice-of-law rule is a rule that mandates the application of the law of the forum
state to cases that have certain enumerated contacts with that state:(1)without regard to the
corresponding claims of any other state to apply its law, and (2)without specifying which law
will govern cases in which the forum state does not have the enumerated contacts.
For cases in which the specified contacts are present, these rules mandate the application of forum law and preempt or obviate a judicial choice-of-law analysis. In fact, under
the principle lex specialis derogate legi generali, these unilateral rules, being more specific,
override even statutory bilateral choice-of-law rules, which usually have a general and
residual character. Afortiori, these statutory unilateral rules override judicially established
choice-of-law rules. For example, in Sangamo Weston, Inc. v. National Surety Corp.,8 the
South Carolina Supreme Court had to acknowledge that the above-quoted South Carolina
3. Ala. Code 27-14-22 (2015). Although the application usually is taken in the insureds home state
and often insures risks located there, the statute does not require these contacts, or any other Alabama
contacts.
4. N.C. Gen. Stat. 58-3-1 (2015); S.C.Code. Ann. 38-61-10 (2015).
5. See, e.g., Wis. Stat. 632.09 (2015) (Every insurance against loss or destruction of or damage to property in this state is governed by the law of this state.); Minn. Stat. 60A.08(4) (2015) (All contracts
of insurance on property, lives, or interests in this state, shall be deemed to be made in this state.); Va.
Code Ann. 38.2-313 (2015) (All insurance contracts on or with respect to the ownership, maintenance
or use of property in this Commonwealth shall be deemed to have been made in and shall be construed
in accordance with the laws of this Commonwealth.); Tenn. Code Ann. 56-7102 (2015) (Every policy
of insurance, issued to or for the benefit of any citizen or resident of this state by any insurance
company or association doing business in this state shall contain the entire contract of insurance
between the parties to the contract, and every contract so issued shall be held as made in this state and
construed solely according to the laws of this state.). See also Fla. Stat. 627.727 (2015); Okla. Stat. tit.
36 3636(2015); La. Rev. Stat. 22:611, 22:655 22:1406(D) (2015).
6. Or. Rev. Stat. 742.001, 742.018 (2015).
7. Ariz. Rev. Stat. Ann. 20-1115 (2015).
8. 414 S.E.2d 127 (S.C.1992).
Insurance Conflicts
495
statute modified the lex loci contractus rule previously followed in South Carolina. In Great
West Casualty Co. v. Hovaldt,9 which involved a less categorical South Dakota statute, the
South Dakota Supreme Court rejected the insureds plea to construe the statute away by
adopt[ing] a better rule of law as in Minnesota.10 We can only respond, said the court,
that when a statute is clear and unambiguous our function is usually confined to restating its expressed meaning.11 Most courts accept this principle and comply with the legislative mandate,12 but other courts are less obedient.13 Even so, however, attorneys are well
advised to inform themselves about these statutes, both in choosing a forum and in preparing theircase.
For cases that lack the statutorily specified contacts with the forum state, the judicial
choice-of-law process remains in place. Depending on the circumstances, that process may
lead to the application of either the law of the forum state or the law of another state. An
Oregon statute applicable to insurance coverage for environmental pollution makes this
possibility explicit, but the same process should follow with other statutes that are not as
explicit. The statute provides that Oregon law shall be applied in all cases where the contaminated property to which the action relates is located within the State of Oregon.14 But
the statute also provides that nothing in it shall be interpreted to modify common law
rules governing choice of law determinations for sites located outside the State of Oregon.15
Thus, in a case in which the contaminated property is located in California, an Oregon court
will undertake a choice-of-law analysis under the common law rules, which, depending
on a variety of contacts and factors, may lead to the application of either California law or
Oregon law. The possibility (even if slight) that Oregon law may apply means that the above
provision, like all unilateral rules, defines the minimum, not the maximum reach of the
lexfori.
9. 603 N.W.2d 198 (S.D.1999).

10. Id. at201.
11. Id.
12. See, e.g., Param Petroleum Corp. v. Commerce & Indus. Ins. Co., 686 A.2d 377 (N.J. Super. Ct.
App. Div. 1997); Nelson v. Aetna Life Ins. Co., 359 F. Supp. 271, 29092 (W.D. Mo. 1973). But see
Haisten v. Grass Valley Med. Reimbursement Fund, Ltd., 784 F.2d 1392 (9th Cir. 1986); State Farm
Mut. Auto. Ins. Co. v.Baker, 797P.2d 168 (Kan. Ct. App.1990); Reger v.Natl. Assn of Bedding Mnfgs.
Group Ins. Trust Fund, 372 N.Y.S.2d 97 (N.Y. Sup. Ct. 1975); Davis v.Humble Oil & Refining Co., 283
So. 2d 783 (La. Ct. App.1973); Kahn v.Great-West Life Assurance Co., 307 N.Y.S.2d 238 (N.Y. Sup.
Ct.1970).
13. In addition to the cases discussed infra at 51921, see: Austin Bldg. Co. v. Natl Union Fire Ins.
Co., 432 S.W.2d 697 (Tex. 1968)and Hefner v.Republic Indemn. Co. of Am., 773 F.Supp.11 (S.D. Tex.
1991) (deviating slightly from the Texas statute quoted at text accompanying note 2, supra); Turner
v. Liberty Mut. Ins. Co., 105 F. Supp. 723 (E.D.N.C. 1952) (deviating from the North Carolina statute
quoted at text accompanying note 4, supra); U.S. Fid. & Guaranty Co. v. Louis A. Roser Co., Inc., 585
F.2d 932 (8th Cir. 1978) and Travelers Ins. Co. v. Am. Fidelity & Cas. Co., 164 F. Supp. 393 (D. Minn.
1958)(limiting the application of the Minnesota statute quoted at note 5, supra).
14. Or. Rev. Stat. 465.480(2)(a) (2015). For similar provisions, see Mich. Comp. Laws 324.1804 (2015)
(The law to be applied , including what constitutes pollution is the law of this state, excluding choice
of law rules.); Colo. Rev. Stat. 13-1.5-104(2015); Wis. Stat. 299.33(4) (2015).
15. Or. Rev. Stat. 465.480(2)(a) (2015).
496
II . A U T O M O B I L E I NS UR A NCE
The most numerous among insurance conflicts are those involving automobile insurance. The
majority of these cases involve the issue of uninsured or underinsured motorist (UM or UIM)
coverage in actions brought by the insureds against their own insurers. The typical scenario
involves a person who, in his or her home-state, purchased a policy insuring a car registered
and garaged in that state, and is involved in an accident in another state caused by an uninsured or underinsured motorist. Aconflict results when the two states have different limits of,
or requirements for, UM coverage, or take different positions on the validity of anti-stacking
or set-off clauses contained in the policy. Like other insurance conflicts, these conflicts tend to
depend heavily on local statutes. Many of these statutes require the application of the law of the
forum state if:(1)the insurance policy was delivered, or issued for delivery, in that state; (2)the
insured automobile is principally garaged there; or (3)the accident occurredthere.
When the forum does not have such a statute, or when the court finds the statute inapplicable, the court resolves the conflict under the forums judicial choice-of-law approach. Besides
the few states that continue to follow the lex loci contractus rule, the majority of states follow
approaches based on Sections 193 or 188 of the Restatement (Second), or other similar flexible
approaches. Regardless of approach, however, the state of the applicable law is usually the same.
Although a few cases apply the law of the accident state,16 the vast majority apply the law of
the state in which the insured automobile is principally garaged, usually the state in which the
insured is domiciled and/or the policy was delivered.17 Taking one year as an example, none
16. See, e.g., Mikelson v.United Servs. Auto. Assn., 111P.3d 601 (Haw. 2005); Mitchell v.State Farm Ins.
Co., 68P.3d 703 (Mont. 2003); State Farm Mut. Auto. Ins. Co. v.Ballard, 54P.3d 537 (N.M. 2002); Nodak
Mut. Ins. Co. v.Am. Family Mut. Ins. Co., 604 N.W.2d 91 (Minn. 2000); Csulik v.Nationwide Mut. Ins.
Co., 723 N.E.2d 90 (Ohio 2000); Williams v.State Farm Mut. Auto. Ins. Co., 641 A.2d 783 (Conn. 1994);
Dunlap v.Hartford Ins. Co. of Midwest, 907 So. 2d 122 (La. App.2005); Sarka v.Love, 2004 WL 816831
(Ohio App.2004), appeal not allowed 812 N.E.2d 1289 (Ohio2004).
17. See, e.g., N.H. Ins. Co. v.Hill, 516 F.Appx 803 (11th Cir. 2013); Alfa Mut. Ins. Co. v.Thornton, 125
So. 3d 330 (Fla. Dist. Ct. App. 2013), review denied, 143 So. 3d 916 (Fla. 2014); Nelson v. Nelson, 409
S.W.3d 629 (Tenn. Ct. App.2013), appeal denied (Aug. 13, 2013); Allstate Fire & Cas. Ins. Co. v.Moore,
993 N.E.2d 429 (Ohio Ct. App.2013); Griffin v.Safeway Ins. Co., 2013 WL 3947104 (La. Ct. App. July 29,
2013); Bandy v.Bevins, 2013 WL 44027 (Ky. Ct. App. Jan. 4, 2013), review denied (Sept. 18, 2013); McGoff
v.Acadia Ins. Co., 30 A.3d 680 (Vt. 2011); Am. Family Mut. Ins. Co. v.Alvis, 72 So. 3d 314 (Fla. App.2nd
Dist. 2011); Nodak Mut. Ins. Co. v.McDowell, 784 N.W.2d 483 (S.D. 2010); Kender v.Auto Owners Ins.
Co., 793 N.W.2d 88 (Wis. App.2010), review denied, 329 Wis. 2d 374 (Wis. 2010); Wendling v.Chambliss,
36 So. 3d 333 (La. App. 1st Cir. 2010); Kentucky Natl Ins. Co. v. Empire Fire &d Marine Ins. Co., 919
N.E.2d 565 (Ind. App.2010); Barrera v.Ins. Co. of State of Penn., 2010 WL 3839418 (Ohio App., Oct. 2010),
appeal not allowed, 127 Ohio St. 3d 1548 (Ohio, 2011); Tenas v.Progressive Preferred Ins. Co., 197P.3d 990
(Mont. 2008); Modroo v.Nationwide Mut. Fire Ins. Co., 191P.3d 389 (Mont. 2008); Cherokee Ins. Co., Inc.
v.Sanches, 975 So. 2d 287 (Ala. 2007); Mid-Century Ins. Co. v.Perkins, 179P.3d 633 (Or. 2008), opinion
modified on reconsideration, 195P.3d 59 (Or. 2008); United Farm Family Mut. Ins. Co. v.Frye, 887 N.E.2d
783 (Ill. App.2008), appeal denied, 897 N.E.2d 264 (Ill. 2008); Am. States Ins. Co. v.Allstate Insurance Co.,
922 A.2d 1043 (Conn. 2007); Zurich American Ins. Co. v.Goodwin, 920 So. 2d 427 (Miss. 2006); State Farm
Mut. Auto. Ins. Co. v.Roach, 945 So. 2d 1160 (Fla. 2006); Smith v.State Farm Mut. Auto. Ins. Co., 952 So. 2d
342 (Ala. 2006); Johnson v.U.S. Fidelity and Guaranty Co., 696 N.W.2d 431 (Neb. 2005); Wamsley v.Nodak
Mut. Ins. Co., 178P.3d 102 (Mont. 2008); State Farm Mut. Auto. Ins. Co. v.Gillette, 641 N.W.2d 662 (Wis.
2002); Howe v.Howe, 625 S.E.2d 716 (W.Va. 2005); Owens v.Miss. Farm Bureau Cas. Ins. Co., 910 So. 2d
Insurance Conflicts
497
of the cases decided in 2014 applied the law of the accident state, even though that state was
also the forum and had a pro-insured law. It is important to note that these cases reached the
same result, even though they were decided under four different choice-of-law methodologies:the traditional approach, the Restatement (Second), the Louisiana codification, and even
Kentuckys lex fori approach.18
Ward v. Nationwide Assurance Co.19 was decided under Kentuckys approach. A Virginia
domiciliary, driving a car insured and garaged in Virginia, was involved in a traffic accident in
Kentucky. He sued his insurer in Kentucky, claiming UIM coverage under Kentucky law. He was
not entitled to such coverage under Virginia law, because he did not qualify as underinsured in
the circumstances of this case. In its first decision in this case, the Kentucky Court of Appeals
held that, although ordinarily Virginia law was applicable, its application would offend Kentuckys
public policy. However, the Kentucky Supreme Court reversed, based on its reasoning in a similar case, which rejected this use of public policy. The court explained that, although there is an
overriding public policy that Kentucky seeks to ensure that victims of motor vehicle accidents
on Kentucky highways are fully compensated, this policy related only to liability coverage; there
is no comparable public policy regarding underinsured motorist coverage.20 The court continued:
[T]he fact that a contract, if made in Kentucky, would not be enforceable as a matter of public policy, does not necessarily mean that it is against public policy to enforce such a contract
when valid where made. If the mere fact that Kentucky law differed from a sister states law were
enough to require the application of Kentucky law, after all, then there would be no choice of law
question, for Kentucky law would always apply in Kentucky courts. To bar enforcement in the
case where the contract was valid where made, the Kentucky public policy against enforcement
must be a substantial one, a well-founded rule of domestic policy established to protect the morals, safety or welfare of our people.21
1065 (Miss. 2005); Champagne v.Ward, 893 So. 2d 773 (La. 2005); Buzalek v.State Farm Mut. Auto. Ins.
Co., 2004 WL 2346011 (D. Del. 2004); Foster v. Motorists Ins. Co., 2004 WL 417339 (Ohio App. 2004);
Kalajian v.Government Emps. Ins. Co., 2004 WL 1664832 (Conn. Super. Ct. 2004); Rains v.Jones, 2004
WL 2955277 (La. App.2004); Kent v.Nationwide Prop. & Cas. Ins. Co., 844 A.2d 1092 (Del. Super. 2004);
Gessner v.GMAC Ins., 2003 WL 23914535 (Idaho Dist. 2003); Flaherty v.Allstate Ins. Co., 822 A.2d 1159
(Me. 2003); Ohayon v.Safeco Ins. Co., 747 N.E.2d 206 (Ohio 2001); Cecere v.Aetna Ins. Co., 766 A.2d 696
(N.H. 2001); Fortune Ins. Co. v.Owens, 526 S.E.2d 463 (N.C. 2000); Ryals v.State Farm Mut. Ins. Co., 1P.3d
803 (Idaho 2000); Great West Cas. Co. v.Hovaldt, 603 N.W.2d 198 (S.D.1999); U.S. Fidelity & Guar. Co.
v.Preston, 26 S.W.3d 145 (Ky. 2000); In re Allstate Ins. Co. (Stolarz), 613 N.E.2d 936 (N.Y.1993).
18. In addition to the cases discussed in the text, the following 2014 cases reached the same result:Grange
Prop. & Cas. Co. v.Tenn. Farmers Mut. Ins. Co., 445 S.W.3d 51 (Ky. Ct. App.2014), as modified (Sept.
26, 2014)(decided under the Restatement (Second); reasoning that the significant transaction is not the
accident but the interpretation of the UM [uninsured motorist] coverage provided by [the] insurance
contract. Id. at 56); Unitrin Direct/Warner Ins. Co. v.Brand, 993 N.Y.S.2d 37 (App. Div. 2014)(decided
under New Yorks center of gravity approach); Boyett v. Redland Ins. Co., 741 F.3d 604 (5th Cir.
2014)(decided under textual and policy analysis of the UIM statute of the state in which the insurance
policy was issued and delivered); Travelers Prop. Cas. Co. of Am. v. Moore, 763 F.3d 1265 (11th Cir.
2014)(decided under Georgias lex loci contractusrule).
19. No. 2012-CA-000809-MR, 2014 WL 7339238 (Ky. Ct. App. Dec. 24 2014), rehg denied (Feb. 12,2015).
20. State Farm Mut. Auto Ins. Co. v.Hodgkiss-Warrick, 413 S.W.3d 875, 887 (Ky.2013).
498
This reasoning is unsurprising in the sense that it accurately reflects the classic ordre public test, but it is surprising in that it comes from a court that once held that Kentucky law
should not be displaced without valid reasons, and that such reasons are not present whenever Kentucky has significant contactsnot necessarily the most significant contacts.22 In any
event, the Court of Appeals got the new message. The court held on remand that Virginia law
governed, and that its application did not offend Kentuckys public policy.
In Wilkeson v.State Farm Mutual Automobile Insurance Co.,23 the insured was domiciled
in California when she purchased two policies from the defendant, but moved to New Mexico
before she was involved in an accident there. The policies contained anti-stacking clauses that
were valid under California law, but not under New Mexico law. The New Mexico court distinguished between disputes between an accident victim and the tortfeasors insurer, and disputes
between accident victims and their own insurers. The court noted that the former are tort
disputes and are governed by the law of the place of the accident, but the latter are contract
disputes, and are governed by the law of the place of the contract.24 The court reasoned that,
because stacking is an issue of contract interpretation, it should be governed by the law of the
state in which the insured purchased the policy, here California, unless the application of that
law violated a fundamental policy of New Mexico. Relying on New Mexico precedent, the court
concluded that the New Mexico rule that allowed stacking did not embody such a fundamental
policy. The court affirmed the judgment of the trial court, which had held for the insurer.
In Hoosier v.Interinsurance Exchange of Automobile Club,25 the insured was domiciled in
California when she purchased the policy, but she moved to Texas three months before she had
an accident in a third state, Arkansas. The insured notified the insurer of the move to Texas,
and the insurer issued a renewal endorsement noting the change of address. The disputed issue
was the amount of UM coverage, which was lower under California law than under Texas
law. The insured argued for the application of Texas law, whereas the insurer argued for the
application of California law. Neither party argued for Arkansas law. The lower court held that
California law governed, reasoning that the insureds move to Texas did not convert the policy
into a Texas policy.
The Arkansas Supreme Court reversed, holding that Texas law should govern. The court
followed Section 193 of the Restatement (Second), which calls for the application of the law
of the state which the parties understood was to be the principal location of the insured risk
during the term of the policy, unless some other state has a more significant relationship. The
court found that, because the insured had notified the insurer about her move to Texas, and the
insurer issued a renewal declaration noting the change of address, Texas became the principal
location of the insured risk, and the insurer did not show that California had a more significant
relationship.
22. Foster v.Leggett, 484 S.W.2d 827, 829 (Ky.1972).

23. 329P.3d 749 (N.M. Ct. App.2014), cert. denied, 328P.3d 1188 (N.M.2014).
24. See 329P.3d at 750 (Generally, in determining the appropriate law to apply when an accident occurs
in one state and an insurance contract has been entered in another, the law of the place of the accident
applies to determine the plaintiff s right to recover from the negligent party, and the law of the place of
the contract, the lex loci contractus, applies to interpret the terms of the contract.)
25. Hoosier v. Interinsurance Exch. of Auto. Club, 2014 Ark. 524, 451 S.W.3d 206 (Ark.2014).
Insurance Conflicts
499
In Green v.U.S. Automobile Assn Auto & Property Insurance Co.,26 the insured was domiciled in South Carolina, but she insured one of her cars in Florida because she frequently
traveled to that state to visit her parents. She was at fault in a South Carolina accident, resulting in injuries to her minor child. The child sued the mothers insurer in South Carolina. The
insurance policy contained a family-member exclusion clause that was valid under Florida
law; it excluded coverage for injury to a family member residing in the insureds household.
The plaintiff argued that the court should apply the law of South Carolina under that states lex
loci delicti rule. Alternatively, if Florida law were applicable, the insured argued that the family exclusion clause was offensive to South Carolinas public policy because that state, unlike
Florida, had abolished the doctrine of intra-family immunity.
The South Carolina Supreme Court rejected both arguments. The court held that this was
a contract dispute, and, under the lex loci contractus rule, the law of the state in which the
insurance policy was delivered, that is, Florida, should govern. [T]he fact that the accident
occurred in South Carolina, the court explained, does not convert the validity of the Florida
contract from one of lex loci contractu into one of lex loci delecti [sic].27 The court also held that
the abolition of intra-family immunity in South Carolina did not create a public policy bar to
enforcement of the valid family member exclusion in an insurance policy issued in another
state.28 It simply meant that the plaintiff s child could sue, if she so desired, but the insurance
policy does not provide coverage for her.29 Moreover, this contractual exclusion of coverage
did not offend South Carolinas public policy.
Progressive Gulf Insurance Co. v.Faehnrich30 involved the same issue and similar facts. The
Nevada Supreme Court reached the same result under the Restatement (Second). An insurance
policy, which the insured purchased while domiciled in Mississippi, covered a car registered
there, and contained a household exclusion clause that was valid under Mississippi law and a
Mississippi choice-of-law clause. A few days after the insured moved to Nevada, the insured
was involved in a single-car accident that caused injuries to her children. In the ensuing lawsuit
between the insured and her insurer, the federal district court in Nevada held that the household exclusion clause violated Nevadas public policy. The Ninth Circuit certified the public
policy question to the Nevada Supreme Court, which held that the household exclusion clause
did not offend Nevadas public policy. The court based its holding on a Nevada statute that both
parties and the federal courts had overlooked, which authorized household exclusion clauses in
policies insuring Nevada cars.31
General Accident Insurance Co. v.Mortara,32 also decided under the Restatement (Second),
was the only case not litigated in the accident state. The accident occurred in New Jersey and
the forum state was Connecticut, where the insured was domiciled and purchased the policy
26. 756 S.E.2d 897 (S.C.2014).

27. Id. at899.
28. Id.
29. Id.
30. 327P.3d 1061 (Nev.2014).
31. For the subsequent decision of the Ninth Circuit applying Mississippi law, see Progressive Gulf Ins.
Co. v.Faehnrich, 752 F.3d 746 (9th Cir.2014).
32. 101 A.3d 942 (Conn.2014).
500
for a car garaged there. The disputed issue was UM coverage, and New Jersey law favored
the insured, whereas Connecticut law favored the insurer. The Connecticut Supreme Court
held that Connecticut law governed, because Connecticut was the principal location of the
insured risk and the insured did not rebut the presumption that Section 193 of the Restatement
(Second) establishes in favor of that states law. Most of the contacts listed in Section 188 also
pointed to Connecticut, and the principles listed in Section 6 supported the application of
Connecticutlaw.
Hollins v. Adair33 was decided under the Louisiana choice-of-law codification of 1991.
A Mississippi domiciliary purchased her insurance policy in Mississippi for a car registered
there, and was involved in a Louisiana accident. Under the facts of this case, the insured was
entitled to UM coverage from her insurer under Louisiana law, but not under Mississippi
law. The court compared Louisianas interests in ensuring recovery for victims of accidents
occurring within its borders, and recouping medical costs for local healthcare providers,
with Mississippis interests in regulating its insurance industry and ensuring the integrity of
contracts made in that state. The court also observed that the insurance policy contained a
Mississippi choice-of-law clause, the premium for UM coverage was based on the application of Mississippi law, and the application of Louisiana law would result in the abrogation
of a Mississippi contract.34 The court concluded that, on balance, Mississippi ha[d]a more
substantial interest in the uniform application of its law governing insurance contracts than
Louisiana ha[d] in providing an insurance remedy to an out-of-state resident who was injured
while in Louisiana.35
Mitchell v.State Farm Insurance Co.36 and Mikelson v.United Services Automobile. Assn.37
are representative of the few cases in which courts applied the law of the state of the accident.
Both cases are factually atypical, if only because they involved a temporary resident of the
accident state. Mitchell involved an uncommon twist of the common issue of UIM coverage.
The case arose out of a Montana traffic accident that did not involve any of the insureds five
cars. The insured was domiciled in California, purchased the insurance policy there, and registered and garaged his cars there. However, the insureds son, who was a covered person under
the policy, was working and living in Montana at the time of the accident. The son was injured
in a Montana accident while riding as a passenger in another car, which was registered and
insured in Montana. After settling with that cars insurer for $50,000, the son sued his fathers
insurer for additional coverage under the fathers UIM provisions. These provisions, which
were valid under California law, precluded additional coverage. Applying California law, the
lower court dismissed the action. The Montana Supreme Court reversed. The court relied on a
Montana statute providing that [a]contract is to be interpreted according to the law in usage
where it is to be performed or, if it does not indicate a place of performance, according to
the law and usage of the place where it is made.38 The court found that the California insurance policy contemplate[d] that [the insurer] will be required to perform its contractual duty
33. No. 2013 CA 1622, 2014 WL 2547977 (La. Ct. App. June 3,2014).
34. Id.at*5.
35. Id.at*4.
36. Mitchell, 68P.3d 703 (Mont.2003).
37. 111P.3d 601 (Haw.2005).
38. Mitchell, 68P.3d at 708 (quoting Mont. Code Ann. 28-3-102).
Insurance Conflicts
501
anywhere in the United States, because the policy provided that [t]he coverages you choose
apply (1)in the United States of America.39 Hence, the court concluded, Montana was an
anticipated place of performance.40 Montana also became the actual place of performance,
because the insureds son was working and living in Montana at the time of the accident; the
underinsured tortfeasors vehicle was insured in Montana; [the sons] medical expenses were
incurred in Montana; and judgment concerning the accident will be rendered and paid in
Montana.41 Applying Montana law, the court declared the UIM provisions invalid and held
for the insured.
Mikelson also involved a temporary resident of the accident state. A California domiciliary, who resided in Hawaii while attending college there, sustained injury in Hawaii
while driving a motorcycle without a permit. He was a named insured under his fathers
California policy, but the policy contained three clauses that denied UM coverage to:(1)a
family member not residing in the named insureds household, (2) a person driving a
motorcycle, or (3)a person using a vehicle without a reasonable belief that the person is
entitled to do so.42 These clauses were valid under California law, but were void as against
Hawaiis public policy. The lower court applied Hawaii law, and the Hawaii Supreme Court
affirmed in a unanimous opinion. The court first reiterated that its choice-of-law approach
remains a mixed one, drawing from Leflars approach, the Restatement (Second), and interest analysis, coupled with a presumption that Hawaii law applies unless another states law
would best serve the interests of the states and persons involved.43 Employing this analysis, the court noted Hawaiis strong interest in applying its law to protect non-resident
college students attending institutions within this state, an interest that was buttressed by
the adhesionary nature of the Policy and the Policys applicability throughout the United
States.44 The court also quoted from earlier cases describing the breadth and intensity of
Hawaiis public policy:
The public policy embodied in the [uninsured motorist] statute directs that uninsured motorist
coverage be provided to insureds when they are not occupants of insured vehicles as well as when
they are. . . . The coverage is portable:The insured and family members . . . are insured no matter
where they are injured. They are insured when injured in an owned vehicle in the policy, in an
owned vehicle not named in the policy, in an unowned vehicle, on a motorcycle[,]. . . on a rocking
chair on a front porch, . . . a bicycle, a horse, a pogo stick, or on foot.45
The court concluded that, [i]n light of the foregoing,46 the exclusion clauses were void as
against public policy.
39. Id.
40. Id.
41. Id. at709.
42. Mikelson, 111P.3d at 604 (quoting the policy).
43. Id. at 607 (quoting Peters v.Peters, 634P.2d 586, 591(Haw. 1981)).
44. Id. at608.
45. Id. at 618 (emphasis in original; quotation marks and citations omitted).
46. Id.
502
III. CO MM E R C I A L L I A BI L I T Y I NS UR A NCE
For contracts of fire, surety, or casualty insurance, Section 193 of the Restatement (Second)
calls for the application of the law of the state the parties understood as the principal location of the insured risk, unless, again, another state has a more significant relationship. The
application of this rule is easy when the policy at issue insures a single risk situated in one state,
as in the case of home insurance. This rule encounters difficulties, however, when the insured
risk is mobile by nature, as in the case of an auto insurance policy. The same is true when the
policy insures multiple risks situated in different states, as in the case of a comprehensive general liability (CGL) policy issued to an insured who operates in several states. For these cases,
the Restatement (Second) suggests that each risk should be treated as if it were insured by a
separate policy, and handled accordingly by applying the law of each state to the risk located
there.47 This section discusses cases involving risks situated or occurring in different states but
insured under a single policy.
A. COVERAGE FORENVIRONMENTAL POLLUTION

In the last three decades, there has been an explosion of litigation involving insurance coverage
for environmental pollution. As the New Jersey Supreme Court observed:
Because of the publics heightened sensitivity to environmental pollution in the last quarter century and because of the significant costs associated with these coverage disputes, a virtual avalanche of coverage litigation between carriers and their policyholders has ensued to determine
who may be ultimately responsible for the payment of these costs. At the very core of these
disputes, which have spawned hundreds of reported cases nationwide, is the interpretation to
be accorded certain contractual language contained in comprehensive general liability (CGL)
policies.48
As the above excerpt indicates, most of these conflicts revolve around the interpretation
of so-called pollution-exclusion clauses, which preclude insurance coverage for environmental
pollution caused by the insureds operations unless the pollution is sudden and accidental.
Some states, including New Jersey, interpret the word sudden to mean simply unexpected
and thus interpret these clauses as not precluding coverage for cases of gradual pollution. Other
states, including NewYork, interpret the word sudden to mean abrupt and thus interpret
these clauses as precluding coverage for gradual pollution.
Another issue involved in many of these cases is the issue of late-notice defenses. Most
liability-insurance policies contain clauses that require policyholders promptly to notify the
insurer of an occurrence that gives rise to coverage under the policy. Many states, including
New Jersey, have held that failure to give prompt notice is not in itself a valid ground for denying coverage, unless the insurer shows that the delay has caused actual prejudice. Other states,
47. See Restatement (Second) 193cmt.f.

48. Pfizer, Inc. v.Emprs Ins. of Wausau, 712 A.2d 634, 635 (N.J.1998) (internal quotation marks omitted).
Insurance Conflicts
503
such as NewYork, have held that failure to give prompt notice provides a valid defense to coverage, even without a showing of actual prejudice.
Most of these cases are multisite in that they involve multiple insured risks (the insureds
operations), but are also multistate, not only in the sense that the sites may be situated in
multiple states, but also in the sense that the insurance contract and/or the parties to it may
be connected with several states. For example, Carrier Corp. v.Home Insurance Co.49 involved
almost 400 policies issued in at least ten states by 19 insurance companies over a period of
30years and covering 44 environmental sites located in several states.
In their efforts to resolve the conflicts arising from these multisite and multistate cases,
American courts are divided as to whether to apply the law of a single state to risks situated
in different states, or instead to apply the law of each state to the risk situated in that state.
Some cases follow the first option, which is known as the uniform-contract-interpretation
approach, and usually is based on Section 188 of the Restatement. This approach focuses on the
insurance contract and aspires to apply the law of a single state, even when the contract covers
multiple risks situated in different states.50 It usually leads to the application of the law of a state
that is either the place of the making of the contract, or has other significant connections with
the contract and the parties, but not necessarily the location of therisk.
More numerous are the cases that follow the second option, which is called the site-
specific approach and is based on Section 193 of the Restatement. This approach abandons
the goal of applying a single law to the whole contract and focuses on the interests of the state
or states where the insured risks are located. The applicable law is usually the law of that state
or states (the site-states), unless another state has a more significant relationship with regard
to the particular issue.51
1. The Uniform Contract

Interpretation Approach
National Union Fire Insurance Co. of Pittsburgh, PA.v.Standard Fusee Corp.52 is representative
of cases adopting the uniform contract interpretation approach.53 The issue in this case was
the interpretation of a pollution-exclusion clause in an insurance policy issued to a Maryland
49. Carrier Corp. v.Home Ins. Co., 648 A.2d 665 (Conn. Super.1994).
52. 940 N.E.2d 810 (Ind.2010).
53. In addition to the cases cited in the following text and footnotes, see Liberty Mut. Fire Ins. Co.
v.Woodfield Mall, L.L.C., 941 N.E.2d 209 (Ill. App.2010); Specialty Surfaces Intern., Inc. v.Continental
Cas. Co., 609 F.3d 223 (3d Cir. 2010); Emprs Mut. Cas. Co. v. Lennox Intl, Inc., 375 F. Supp. 2d 500
(S.D. Miss. 2005); Maryland Cas. Co. v. Continental Cas. Co., 332 F.3d 145 (2d Cir. 2003) (decided
under NewYork conflicts law); Emerson Elec. Co. v.Aetna Casualty & Surety Co., 743 N.E.2d 629 (Ill.
App.2001); Household International, Inc. v.Liberty Mut. Ins. Co., 749 N.E.2d 1 (Ill. App.2001); Lapham-
Hickey Steel Corp. v.Protection Mut. Ins. Co., 655 N.E.2d 842, 845 (Ill. 1995); Asbestos Removal Corp.
v.Guaranty Nat. Ins. Co., 48 F.3d 1215 (4th Cir. 1995)(Virginia conflicts law); Bituminous Cas. Corp. v.St.
Clair Lime Co., 69 F.3d 547 (10th Cir. 1995)(Oklahoma conflicts law); Sequa Corp. v.Aetna Cas. & Sur.
Co., 1995 WL 465192 (Del. Super. Ct. 1995); Aetna Cas. & Sur. Co. v.Dow Chem. Co., 883 F.Supp.1101
(E.D. Mich. 1995); Emprs Ins. of Wausau v.Duplan Corp., 899 F.Supp.1112 (S.D.N.Y. 1995); Gould, Inc.
504
insured and covering its manufacturing plants in Indiana and California. The intermediate
court adopted the site-specific approach, holding that Indiana law would govern the Indiana
site, and California law would govern the California site. The court relied heavily on Section
193 of the Restatement (Second), and reasoned that the site-specific approach effectuates the
interests of the state of the contaminated site (when it has a pro-coverage law) in ensuring the
availability of funds for the cleanup.
The Indiana Supreme Court reversed, holding that, under Indianas most intimate contacts
approach, Maryland law should govern coverage for all sites. The site of the pollution should
not control if it is not located in the state with the most intimate contacts, said the court, for
the same reason that [a]single eventlike executing a contracthas not been determinative if that event occurred in a state with insignificant contacts.54 The court also reasoned
that its previous rejection of dpeage in Simon v.United States 55 supported adherence to the
uniform-contract-interpretation approach, because it favored applying a single states law to
the entire dispute.56 The court concluded that the overall number and quality of contacts favor
Maryland over Indiana,57 because:(1)as the place of the insureds headquarters, Maryland was
the principal location of the insured risk; (2) the contract was probably made in Maryland;
(3)the policy was delivered in, and the premiums were paid from, Maryland; and (4)the performance of the contract was to take place at least in part in Maryland.
In St. Paul Mercury Insurance Co. v.Northern States Power Co.,58 a Minnesota court adopted
the same approach, after expressing its strong disapproval of the site-specific approach and
opining that it strains credulity59 to conclude that the law of each state where an insured site
is located would control insurance coverage. In this case, the insurance policy had been issued
in Minnesota to the insureds corporate parent, but it covered four power plants in Wisconsin
operated by the insured, a Wisconsin corporation. The insurer filed for a declaratory judgment
in Minnesota, which had a pro-insurer law, two weeks before the insured sued in Wisconsin,
which had a pro-insured law. The Minnesota court issued an anti-suit injunction enjoining the
insured from pursuing its Wisconsin lawsuit. Then, employing Minnesotas better-law approach
but using mostly circular reasoning, the court concluded that Minnesotas law, which the court
judged to be better than Wisconsins, should govern. Adissenting judge noted this $120million case implicated solely Wisconsins interests,60 and characterized as inappropriate the
v. Continental Cas. Co., 822 F. Supp. 1172 (E.D. Pa. 1993); Lumbermens Mut. Cas. Co. v. Connecticut
Bank & Trust Co., 806 F.2d 411, 415 (2d Cir. 1986); Vigen Constr. Co. v.Millers Nat. Ins. Co., 436 N.W.2d
254 (N.D. 1989); Eli Lilly & Co. v.Home Ins. Co., 764 F.2d 876 (D.C. Cir.1985).
54. National Union, 940 N.E.2d at815.
56. National Union, 940 N.E.2d at815.
57. Id. at816.
58. 2009 WL 2596074 (Minn. Ct. App. Aug. 25, 2009), review denied (Nov. 17,2009).
59. Id.at*4.
60. See id. at *9 (Minge, J., concurring in part, dissenting in part) (The Wisconsin nexus makes
inappropriate the application of Minnesota law as to allocation among insurers of a Wisconsin risk.
Ultimately, this is a struggle among Wisconsin (and federal) environmental clean-up duties, ratepayer
assessments, shareholder loss, and insurer liability. Absent a federal preemption rule, the state whose
laws and regulatory authority govern local land use, environmental cleanup, and regulated utilities has an
immediate responsibility for handling such matters.).
Insurance Conflicts
505
majoritys conclusion that Minnesotas law was better than Wisconsins.61 The states rules are
simply different, said the dissenting judge, and to tell Wisconsin that they got it wrong and
we Minnesotans got it right when Wisconsin had adopted the particular rule only a year earlier, would engender resentment that detracts from the respect that each state should accord
the laws and court decisions of the other.62
2. The Site-S pecific Approach

In 1993, the New Jersey Supreme Court was among the first courts, in Gilbert Spruance Co.
v.Pennsylvania Manufacturers Assn Insurance Co.,63 to reject the uniform-contract approach
and develop the site-specific approach.64 However, this was a relatively simple case that
involved only two states:Pennsylvania was the domicile of both the insurer and the insured,
the place of the contract, and the location of the insureds waste-producing facility; and New
Jersey was the place where the waste had been dumped. Thus, Gilbert Spruance was a bi-
state, split-site case, rather than a multistate, multisite case. Employing interest-analysis but
also relying on Section 193 of the Restatement (Second), the court announced that the applicable law should be the law of the state of the principal location of the insured risk, unless
another state has a dominant significant relationship according to the principles set forth in
61. Id.
62. Id. at*10.
63. 629 A.2d 885 (N.J.1993).
64. For other cases following this approach, see e.g., Del Monte Fresh Produce (Hawaii), Inc. v.Firemans
Fund Ins. Co., 183P.3d 734 (Haw. 2007); Reichhold Chem., Inc. v.Hartford Acc. & Indem. Co., 750 A.2d
1051 (Conn. 2000); Pfizer, Inc. v.Emprs Ins. of Wausau, 712 A.2d 634 (N.J. 1998); Unisys Corp. v.Ins. Co.
of North Am., 712 A.2d 649 (N.J. 1998); HM Holdings, Inc. v.Aetna Cas. & Sur. Co., 712 A.2d 645 (N.J.
1998); Gilbert Spruance Co. v.Penn. Mnfgs. Assn Ins. Co., 629 A.2d 885 (N.J. 1993); Consol. Mut. Ins. Co.
v.Radio Foods Corp., 240 A.2d 47 (N.H. 1968); Boardman Petroleum, Inc. v.Federated Mut. Ins. Co., 135
F.3d 750 (11th Cir. 1998); LaFarge Corp. v.Travelers Indem. Co., 118 F.3d 1511 (11th Cir. 1997)(Florida
conflicts law); Millipore Corp. v. Travelers Indem. Co. 115 F.3d 21 (1st Cir. 1997) (Massachusetts conflicts law); General Ceramics Inc. v.Firemens Fund Ins. Co., 66 F.3d 647 (3d Cir. 1995); CPC Intl, Inc.
v. Northbrook Excess & Surplus Ins. Co., 46 F.3d 1211 (1st Cir. 1995) (Rhode Island conflicts law);
Travelers Prop. Cas. Co. of Am. v. Flexsteel Indus., Inc., 847 N.W.2d 237 (Table), 2014 WL 1234248
(Iowa Ct. App.2014); One Beacon Am. Ins. Co. v.Huntsman Polymers Corp., 276P.3d 1156 (Utah Ct.
App.2012), cert. denied, 285P.3d 1229 (Utah 2012); Byers v.Auto-Owners Ins. Co., 119 S.W.3d 659 (Mo.
App. 2003); Hartford Acc. & Indem. Co. v. Dana Corp., 690 N.E.2d 285 (Ind. Ct. App. 1998); Albert
Trostel & Sons Co. v.Emprs Ins. of Wausau, 216 Wis. 2d 382 (Wis. Ct. App.1998); Commercial Union
Ins. Co. v.Porter Hayden Co. 698 A.2d 1167 (Md. App.1997), cert. denied 703 A.2d 147 (Md. 1997); W.C.
Richards Co., Inc. v.Hartford Indem. Co., 682 N.E.2d 220 (Ill. App.1997); Morton Intl, Inc. v.Aetna Cas.
& Sur. Co., 666 N.E.2d 1163 (Ohio Ct. App.1995); CXY Chems. U.S.A.v.Gerling Global Genl Ins. Co.,
991 F.Supp.770 (E.D. La. 1998); Wysong & Miles Co. v.Emprs of Wausau, 4 F.Supp.2d 421 (M.D.N.C.
1998); In re Combustion, Inc., 960 F.Supp.1056 (W.D. La. 1997); E.B. & A.C. Whiting Co. v.Hartford
Fire Ins. Co., 838 F.Supp.863 (D. Vt. 1993); CPC Intl, Inc. v.Northbrook Excess & Surplus Ins. Co., 839
F.Supp.124 (D. R.I., 1993)(decided under New Jersey conflicts law); CPC Intl, Inc. v.Aerojet-General
Corp., 825 F. Supp. 795 (W.D. Mich., 1993); Jones Truck Lines v. Transport Ins. Co., 1989 WL 49517
(E.D. Pa. 1989). For cases illustrating the race to the courthouse between insurers and their insureds,
see Sensient Colors Inc. v.Allstate Ins. Co., 939 A.2d 767 (N.J. 2008); Century Indem. Co. v.Mine Safety
Appliances Co., 422, 942 A.2d 95 (N.J. Super.2008).
506
Restatement section 6.65 In light of the fact that the site of the risk was split between two
states one of which, Pennsylvania, also had all the other pertinent contacts, one might expect
that Pennsylvania would have the dominant significant relationship. Yet, the court reached
the opposite conclusion. Although purporting to follow Section 6 of the Restatement, the
courts analysis was more like straight interest analysis. Noting that New Jerseys pro-coverage
law expressed that states urgent concern for the health and safety of [its] citizens, the court
held that a Section 6 analysis would lead inescapably to the conclusion that, in a case in
which out-of-state generated waste foreseeably comes to rest in New Jersey, New Jersey has the
dominant significant relationship,66 and its law should govern. The court expressly confined
its holding to the precise pattern involved in Gilbert Spruance, namely single split-site cases
in which New Jersey is on the receiving end of the waste-dumping cycle. The court deliberately refrained from expressing a view on how it might decide:(1)single split-site cases of the
converse pattern where waste generated in New Jersey predictably is disposed of in another
state,67 or (b)multisite multistate cases.68
Five years later, the court answered the latter question directly, and the former question
indirectly, in three cases announced on the same date. Pfizer, Inc. v. Employers Insurance of
Wausau,69 Unisys Corp. v. Insurance Co. of North America,70 and HM Holdings, Inc. v. Aetna
Casualty & Surety Co.,71 all involved the issues of interpretation of pollution-exclusion clauses
and late-notice defenses, described above. None of these cases involved split-sites, and all
involved multiple sites in multiple states. The involved states were: New Jersey, whose pro-
coverage law is described above; NewYork, whose pro-insurer law is also described above; and
third states in which the sites were located, and whose law, the court assumed, would parallel
the law of either New Jersey or NewYork.
Pfizer involved six waste-sites in five states other than New Jersey or NewYork, an insurance contract negotiated and made in New York, and an insured, Pfizer, that had its headquarters in NewYork but also operated in New Jersey, employing more than 2,000 people in
that state. Unisys involved 21 waste-sites in seven states, including New Jersey and NewYork,
insurance policies issued in New York, and insurers and insureds based in states other than
New Jersey or New York. HM Holdings involved nine waste-sites in seven states other than
New Jersey or NewYork, insurance policies delivered in NewYork, and an insured who at the
time of the contract had its headquarters in NewYork but moved them to New Jersey more
than a decade before litigation began. Concerning the interpretation of the pollution-exclusion
clause, the court held that in all three cases, the law of the site-states should apply with regard
65. Gilbert Spruance Co., 629 A.2d at893.

66. Id. at894.
67. See id.: We have no occasion to consider the problem presented when waste generated in NJ
predictably is disposed of in another state. [and thus] we express no view on the proposition that
[such cases should be resolved under] a 6 analysis.
68. See id. at 89495:[W]e distinguish Westinghouse as a case that involved multi-state sites while this
case involves only one site in one state [although] we reject the uniform-contract-interpretation
approach.
69. Pfizer, 712 A.2d 634 (N.J.1998).
70. 712 A.2d 649 (N.J.1998).
71. Id.
Insurance Conflicts
507
to the sites located in their respective territories. In two of these cases (Pfizer and Unisys), the
court held that the same law should apply to the issue of late-notice defenses, while in the third
case (HM Holdings) the court held that New Jersey law might apply under certain contingencies describedbelow.
In Pfizer, the court took the important step of extending to multisite-multistate cases the
site-specific approach enunciated in Gilbert Spruance. The court acknowledged that, when
applied to multisite-multistate cases, this approach inevitably entails the application of the
law of different states to different risks insured under a single policy, and that in turn this
increases the logistical burden on trial courts, which will have to analyze the same exclusion-
clause under the laws of multiple states. The court thought that the first problem is obviated
by treating each risk as if it were insured by a different policy,72 and that the second problem is
not as grave as it sounds because the laws of the various states are likely to fall into either one
of two patternspro-coverage, or anti-coverage. The court enunciated the test for rebutting
the presumption in favor of the law of the site by grouping into four factors the considerations
listed in Restatement Section 6:(1)The competing interests of the states;73 (2)The interests
of commerce among the states; (3)The interests of parties; and (4)The interests of judicial
administration.74 The court then proceeded to apply the four factors to each of the threecases.
The courts discussion of factors 2 and 4 was brief and virtually identical in the three cases.
Regarding factor 2, the court said that the interests of commerce among the states are hindered
when the opposing views of one state are imposed on a state that has a dominant and significant relationship.75 Regarding factor 4, the court reiterated that, although burdensome, the
logistical difficulties of the site-specific approach were surmountable.76
Regarding factor 3, the interests of parties, the court concluded that, even at the time
of the contract, the parties expectations pointed toward the law of the site-state rather than
the law of the place of the contract.77 The court reasoned that: (1) the absence of choice-of-
law clauses in the insurance policies made less credible the insurers claim of having relied
on the law of the place of the contract,78 (2) unpredictability lies in the nature of insurance
72. See Pfizer, 712 A.2d at 638 ([T]he courts will, presumably, treat the policy as involving separate policies, each insuring an individual risk.).
73. Id. at639.
74. Id. at640.
75. Id. at 641. See also Unisys, 712 A.2d at 652; HM Holdings, 712 A.2d at648.
76. See Pfizer, 712 A.2d at 64243; Unisys, 712 A.2d at 652; HM Holdings, 712 A.2d at648.
77. See Pfizer, 712 A.2d at 642:[A]policyholder would expect that it would be indemnified under the
law in effect at the place where liability is imposed. The policies contain sweeping declarations of coverage
that should be given effect where the risks arise.
78. See id.: It is likely that the parties could have contracted for more predictable results had they
inserted choice-of-law provisions in the insurance contracts. That the parties did not do so indicates
that there would be uncertainty with respect to the interpretation of the CGL clauses in various states
where the policies might provide coverage. This statement does not suggest that a choice-of-law clause
will necessarily be honored in New Jersey. At least one case involving a New Jersey site has refused to
honor a contractual choice of another states law. In Param Petroleum Corp. v. Commerce & Indu. Ins.
Co., 686 A.2d 377 (N.J. Super. Ct. App. Div. 1997), the court found such a clause inimical to New Jerseys
interests. These interests, said the court, go beyond mere protection of the insured to protection for those
claimants who may have suffered damages as a result of covered risks. Thus, at least when dealing with
508
contracts,79 and (3)[p]redictability appears to be a minor virtue in view of the willingness of

insurers to issue multi-site policies that will be subject to the unpredictable substantive law of
many states fixing the liabilities of their insureds.80
Predictably, the court devoted much more attention to factor 1, the competing interests of
the states. The court declared New Jerseys interests to be protection of the regulatory process in New Jersey, protection of New Jersey policyholders, protection of the victims of pollution, and protection of the New Jersey environment.81 In Pfizer (which did not involve any
New Jersey sites or policyholders) none of the above New Jersey interests were implicated, and
the court so held. The court discussed the fact that Pfizer had a significant economic presence in New Jersey, but concluded that New Yorks much more massive contacts with Pfizer
outweighed its New Jersey presence. Despite those contacts, however, and the fact that the
insurance policy had been negotiated and delivered in New York, the court concluded that
New Yorks relationship was not as significant as that of the site-states. The court concluded
that these states had the more dominant significant relationship to the issues of interpretation
of the pollution-exclusion clause and the late-notice defense.82
The fact that the court did not tie its conclusion to the content of the laws of the site-
states might appear inconsistent with interest analysis. However, given the courts earlier conclusion that the law of the site-states would be identical to either New Jerseys or
New Yorks, the application of the law of the site-states in either scenario would not be
inconsistent with interest analysis. If the law of the site-state is identical to New Jerseys
(pro-coverage), then a true conflict would be present before a disinterested forum between
the law of the site-state and the law of NewYork. In such a case, the application of the law
of the site-state will produce a result that is in tune with New Jerseys pro-coverage leanings.83 If the law of a site-state is identical to New Yorks (i.e., excluding coverage), then a
false conflict would be present before a disinterested forum. In such a case, the application
of the law of the site-state would not offend NewYorks interests nor, as the court said, New
Jerseys public policy.84
In Unisys (which involved sites in seven states, including New Jersey and NewYork, insurance policies issued in NewYork, and no New Jersey or NewYork parties), the court held again
that the law of the respective site-states applied. Because NewYork was one of the site-states,
NewYork law would govern, but only with regard to the site situated therein and not because
of NewYorks contacts with the insurance contract.
risks located wholly within this State, we are of the view that the parties to the insurance contract should
not be permitted to negotiate away the protection of our courts. Id. at 381 (citations omitted).
79. Pfizer 712 A.2d at642.
81. Id. at644.
82. Id.
83. See id. at 642:[I]f NewYork law were applied to determine coverage at a waste site in Indiana and
that states law mirrored the law of [New Jersey], the interests of Indiana would be hindered.
84. See id.: We do not find it offensive or repugnant, to New Jerseys public policy that another
state, such as Indiana, might, in connection with waste sites and policyholders located there, give a literal
meaning to the pollution-exclusion clause [thus excluding coverage].
Insurance Conflicts
509
Finally, in HM Holdings (which did not involve New Jersey or New York sites but did
involve insurance policies delivered in NewYork to an insured who at that time was headquartered in NewYork), the court held that the law of the site-states should govern the interpretation of the pollution-exclusion clause. The court noted that the fact that in the meantime (after
the insurance contract but more than a decade before the lawsuit) the insured had moved
its headquarters to New Jersey implicated New Jerseys interests in protecting the insured.
However, the court concluded that those interests should yield to the need to discourage
forum shopping.85
In contrast, forum shopping was not a concern with regard to the issue of the late-notice
defense, available under the law of NewYork but not New Jersey. By the time of the events surrounding the late notice, the insured had moved its headquarters from the former to the latter
state, thus giving birth to a New Jersey interest in protecting the New Jersey insured.86 This left
New Jerseys interest in juxtaposition with the interests of the site-states. The court resolved this
potential conflict as follows:We conclude that either New Jersey law or the law of the waste
sites should govern the late-notice issues. If the law of the waste sites is similar to NewYorks,
it should yield to New Jerseys unless the insurance companies are domestic companies of the
waste sites.87
The excerpt last quoted leaves no doubt that New Jerseys endorsement of the site-specific
approach is subject to exceptions designed to protect New Jerseys interests. According to
Pfizer, these interests are:[1.] protection of the regulatory process in New Jersey, [2.] protection of New Jersey policyholders, [3.] protection of the victims of pollution, and [4.] protection
of the New Jersey environment.88 The Pfizer trilogy, in combination with Gilbert Spruance and
cases that Pfizer cited with approval, suggests that:(1)when any one of the above New Jersey
interests are implicated, New Jersey will likely apply its pro-coverage law, notwithstanding the
contacts or interests of other states; and (2)when none of the above New Jersey interests are
implicated, then New Jersey will apply the law of the site-state, whether or not that law favors
coverage. Theoretically, this law may be displaced upon showing that another state has a more
significant relationship but, practically, such displacement will be difficult.
85. See HM Holdings, 712 A.2d at 648: [I]f a policyholder could choose the substantive rules to be
applied to an action the invitation to forum shopping would be irresistible. Quoting from Allstate
Ins. Co. v.Hague, 449 U.S. 302, 337 (1981) (Powell, J., dissenting). The court also noted that if the laws of
New Jersey and NewYork were reversed, then we are certain that New Jerseys laws should yield to the
laws of the waste sites that would have the more dominant relationship to the transaction and the issue.
HM Holdings, 712 A.2d at648.
86. See id. at 64849 (Because the purpose to be served by New Jerseys late-notice rule is the protection
of a New Jersey policyholder and the conduct about which we are concerned (the late notice) may have
occurred at a time when the policyholder was a corporate resident of New Jersey, New Jerseys policies
would be fostered by application of its late-notice law. Those policies do not affect the formation of the
contract, but rather its performance. Application of NewYorks law would interfere with the public policy
reflected in New Jerseys law without a corresponding benefit to NewYork domestic concerns. The lead
insurance companies are not NewYork based companies. The wholly domestic concerns of NewYork
are not advanced when its late-notice doctrine is applied to parties not resident in NewYork, concerning
waste sites not in NewYork.).
87. Id. at649.
88. Pfizer, 712 A.2d at644.
510
B. PRODUCTS LIABILITY INSURANCE

Cases involving insurance coverage for products liability raise similar issues and dilemmas as
those involving coverage for environmental pollution. The typical scenario involves a single
insurance policy that covers risks occurring in several states, wherever the insured manufacturers causes injuries to the products users. At least in theory, the choice-of-law question is
the same, that is, whether to apply the law of a single state to all the risks, or instead apply the
laws of the states in which the risks occurred. Admittedly however, the interests of these states
are not necessarily as clear or as strong as in the pollution cases. As a result, the majority of the
products liability opt for the first choice and apply the law of a singlestate.
NL Industries v. Commercial Union Insurance Co.89 is a representative case, especially
because it was decided under the conflicts law of New Jersey shortly after the Supreme Court
of that state adopted the site-specific approach of Gilbert Spruance for cases involving insurance for environmental pollution. The NL Industries court confined the site-specific approach
to pollution cases and declined to extend it to products liabilitycases.
NL Industries involved an action for a declaratory judgment that an insurance policy
(issued in NewYork by a NewYork insurer to a New Jersey corporation that had its principal
place of business in New York) provided coverage for lead exposure caused by the insureds
products in several other states. Relying on Gilbert Spruance and interpreting it as requiring
the application of New Jersey law, the district court applied that law. The Third Circuit Court
of Appeals reversed, holding that NewYork law applied. The court found that the reasons for
adopting the site-specific approach in Gilbert Spruance were not present in products liability coverage actions. Inter alia, a states interest in determining coverage for product liability
actions is more amorphous and therefore less compelling than its interests in environmental cleanup [and because] [t]here is less predictability concerning the situs of product
liability claims, and a manageability problem in light of the potentially far larger number of
product liability claims.90 Thus, the court concluded, because the benefits of the site-specific
approach are reduced while the problems associated with its implementation are magnified
outside the environmental coverage context, the New Jersey Supreme Court would not extend
the site-specific approach to the product liability coverage actions. Consequently, according
to this federal court, these actions will continue to be handled under the pre-Gilbert Spruance
approach, according to which unless a dominant and significant relationship mandates the
application of another states law, the law of the place of contract will apply.91
In a similar case, Certain Underwriters at Lloyds, London v. Foster Wheeler Corp.,92 a
NewYork court followed a similar approach and applied the law of a single state, New Jersey.
89. NL Indus. v. Commercial Union Ins. Co., 65 F.3d 314 (3d Cir. 1995) (decided under New Jersey
conflictslaw).
90. Id. at322.
91. Id. For another case decided under New Jersey conflicts law and applying the law of a single state, see In
re Liquidation of Integrity Ins. Co./Sepco Corp., 49 A.3d 428 (N.J. Super. App. Div. 2012), cert. denied, 213
N.J. 44 (N.J. 2013); For a case decided under Colorado conflicts law, see TPLC, Inc. v.United Natl Ins. Co.,
44 F.3d 1484 (10th Cir. 1995). See also Viacom, Inc. v.Transit Cas. Co., 138 S.W.3d 723 (Mo. 2004)(applying the law of the state in which the insurance policy was delivered and the insured had its principal place
of business, rather than the law of the state where the insured risk was located and materialized).
92. 822 N.Y.S.2d 30 (N.Y.A.D. 1st Dept. 2006), aff d, 876 N.E.2d 500 (N.Y.2007).
Insurance Conflicts
511
Foster Wheeler was a complex case, involving insurance coverage for hundreds of thousands of
claims arising from exposure to asbestos contained in products manufactured by the insured
since the 1970s. During this period, the insured, Foster Wheeler (FW), had its principal place
of business in New Jersey, and had purchased insurance coverage in that state from several
insurers, the defendants, through their New York brokers. FW sued in New York, seeking a
declaratory judgment determining the proportional responsibility of its insurers for the costs
of defending the asbestos claims. New York and New Jersey followed different mathematical
methods for determining the amounts of insurance coverage, and New Jersey law was more
favorable to the insured. The trial court applied NewYork law. The Appellate Division reversed,
holding that New Jersey law should govern.
Noting that New Yorks center-of-gravity approach generally leads to the application of
the law of the state in which the insured risk was located, the Appellate Division found this
approach problematic in cases, such as this one, in which the risks covered are nationwide
or global in scope93 and their locations could not have been predicted at the time the policies were issued. To remedy this problem, the court decided to supplant the center-of-gravity
approach with a direct consideration of the implicated state interestsin:
(1) Regulating conduct with respect to insured risks within the states borders; (2)assuring that
the states domiciliaries are fairly treated by their insurers; (3) assuring that insurance is available to the states domiciliaries from companies located both within and without the state; and
(4)regulating the conduct of insurance companies doing business within the states borders.94
The court concluded that, in cases involving a single policy covering multiple multistate
risks, the foregoing interests, in aggregate, weigh in favor of applying the law of the insureds
domicile, notwithstanding that certain other states (e.g., the states of the insurers domicile, and
where negotiation and contracting occurred) may share, to a lesser extent, in the fourth interest
enumerated above.95
The court added that, in these cases, the insureds home-state should be regarded as a
proxy for the principal location of the insured risk,96 and the application of that states law
is supported by other goals of the choice-of-law process, such as certainty, administrability,
predictability, and uniformity of result. This is because that state is known to the parties at the
time of contracting, and application of [its] law is most likely to conform to their expectations;97 and, second,
[it] can be ascertained in any subsequent litigation without fact-intensive inquiry or unguided
weighing of different contacts . . . [thus] minimiz[ing] the likelihood that contemporaneous policies will be deemed governed by the laws of different states . . . mak[ing] it more likely that consistent and uniform results will be reached in different cases.98
93. Foster Wheeler, 822 N.Y.S.2dat33.
94. Id.at34.
95. Id.
96. Id.at35.
97. Id. at3435.
98. Id.at35.
512
In Liggett Group Inc. v.Affiliated FM Insurance Co.,99 the insured Liggett, a tobacco company, sued its 33 insurers seeking a declaratory judgment that the policies they issued to plaintiff provided coverage for claims arising from more than 1,000 tobacco health-related lawsuits
filed against Liggett in all 50 states. The insurance policies at stake were issued over a period of
28years, from 1970 to 1998. For 19 of those years, Liggett had its principal place of business
in North Carolina.100
The Delaware court noted that the pertinent Restatement (Second) section would be Section
193, which calls for the application of the law of the principal location of the insured risk, but that
in this case the insured risks were the tobacco-related injuries in the underlying lawsuits against
Liggett, which were filed in all 50 states. In such a case, said the court, there is no principal
location of these risks.101 Thus, the court decided not to apply Section 193 and to apply instead
Section 188 of the Restatement (Second). The court noted that the Restatement calls for an issue-
by-issue analysis. However, in complex cases, such as this, involving a large number of insurers
and policies with contacts in various states, the Court cannot ignore the practical consequence
of monumental, very expensive, time-consuming discovery and legal research facing the litigants.102 Indeed, the parties themselves agreed that in the interest of economy and ease of application,103 the court should choose the law of a single state, although they disagreed as to which
state that would be: Liggett argued for North Carolina and the insurers argued for New York
law. After a detailed discussion of each of the Section 188 contacts in which the court tended
to emphasize the North Carolina contacts and de-emphasize the NewYork contacts, the court
concluded that North Carolina had a more significant relationship and its law should govern.104
C. INSURABILITY OFPUNITIVE DAMAGES

Another controversial issue in recent multistate litigation is whether an insurer must cover
punitive damages assessed against the insured. According to an established treatise on this
subject:
[T]he majority of the states allow the insurability of punitive damages directly or vicariously
assessed against the insured. Some jurisdictions only permit insurability of punitive awards that
99. Liggett Group Inc. v. Affiliated FM Ins. Co., 788 A.2d 134, 2001 WL 589041 (Del.Sup.2001).
100. In the remaining nine years, it had its principal place of business in NewYork, New Jersey, and some
other states. The 33 insurers had their principal place of business in many different states.
101. Liggett Group, 2001 WL 589041at*2.
102. Id.at*2.
103. Id.
104. The court also discussed the principles of Section 6 of the Restatement, but this discussion did not
change the outcome. The court concluded that North Carolina had a strong interest at stake, because it was
the chief location of the insureds principal place of business. The court also recognized that New York,
which was the principal place of business of several of the insurers and the place where many negotiations had taken place, also had an interest in applying its law. But the court inexplicably concluded that
the interests of the two states were not in conflict, as both states share the same general policy interests in
promoting insurance coverage and resolving ambiguities in favor of policyholders. Thus, even though interpretation of policy language may differ among states, this Court finds that any potential conflict is inconsequential because the states share the same general policy regarding insurance coverage disputes. Id.at*7.
Insurance Conflicts
513
are vicariously assessed against the insured as a result of the acts of another for whom the insured
is illegally responsible. Less than half the states prohibit the insurability of punitive damages that
are directly assessed against an insured.105
Obviously, the states that allow insurability subscribe to a policy of protecting the insured,
whereas the states that prohibit insurability subscribe to a policy of deterring the type of misconduct that evokes punitive damages by not allowing the insured to pass on the pain of punitive damages to the insurer.
A common strategy in these cases is the use of declaratory judgment actions, both offensively and defensively. Many of these cases involve the familiar race to the most hospitable
forum, with the insurer bringing such an action in one state and the insured in another. Again,
the basic choice-of-law options are to:(1)focus on the state of insurance contract, which usually coincides with the personal connections of the insured; or (2)focus on the state or states
where the risk(s) materialized. Although the courts remain divided between these two options,
it is apparent that the forum states own position on the issue of the insurability of punitive
damages weighs heavily in choosing between these two options.
The preference for the forums position is more obvious in cases decided under the ordre
public exception in states that follow the traditional system. Agood example is St. Paul Surplus
Lines v.International Playtex, Inc.,106 a case decided in a lex loci contractus state. In St. Paul, the
Supreme Court of Kansas decided to not abandon the lex loci rule in favor of the Restatement
(Second) because the public policy exception allowed it to apply the law of Kansas rather than
the law of Illinois, where the contract was made. An Illinois insurer sued its Delaware insured
in Kansas, seeking a declaratory judgment that the insurer was not obligated to pay a $10-
million punitive damages award, assessed against the insured by a Kansas court for the death of
a Kansas woman caused by insureds products in Kansas.107 The insurance policy was delivered
in Illinois, and provided that punitive damages were fully insured to the maximum extent
permitted by law. Unlike Delaware, Kansas prohibited insurance against punitive damages.
The court noted that, under Kansass lex loci contractus rule, the insurance contract would be
governed by Illinois law, under which the insurability of punitive damages was doubtful, but
concluded as follows:We reserve consideration of the Restatements most significant relationship test for a later day. Our choice of Kansas law rests on Kansas public policy. The interest of
105.J.Stein, Personal Injury Damages, 4:37 (3d ed. updated Apr. 2015). See alsoid.:
A threshold question . . . is whether the insurance contract, judicially construed, allows for coverage
of punitive damages, given that most policies contain no express language of inclusion or exclusion.
Policies typically extend coverage to all damages or sums which the insured shall become obligated to pay arising out of some prescribed activity (e.g., driving an automobile, providing medical
services) resulting in bodily injury or property damage. Some judicial opinions focus on the ambiguity of the policy language and construe the coverage against the insurer.
106. 777P.2d 1259 (Kan. 1989), cert. denied, 493 U.S. 1036 (1990).
107. Meanwhile, the insured filed its own action for a pro-coverage declaratory judgment in Delaware.
In Playtex v.St. Paul Surplus Lines Ins. Co., 564 A.2d 681 (Del. Super. 1989), the court stayed proceedings
pending the decision of the Kansas Supreme Court and dismissed for lack of ripeness the insureds complaint with regard to punitive damages that might be imposed in the future on the insured in states other
than Kansas. See also Playtex v. Columbia Cas. Co., 1989 Del. Super. Lexis 320 (suit against the excess
carrier on the same issue).
514
Kansas exceeds Delawares interest.108 The court explained that the non-application of Kansas
law would thwart the purposes for which Kansas adopted its policy, namely, to make the culprit feel the pecuniary punch, not his guiltless guarantor, and that [t]he objective of the policy
is to prevent wrongful acts against the citizens of the State of Kansas.109
In Hartford Accident & Indemnity Co. v.American Red Ball Transit Co.,110 the same court
faced an almost identical case, and decided it the same way. The case arose out of a Kansas
traffic accident caused by an Indiana driver who was driving a vehicle insured by an Indiana
insurance policy. The accident resulted in the death of two Kansas domiciliaries. In the ensuing
tort trial in Kansas, the jury awarded punitive damages against the driver and the cars owner,
an Indiana company. As in St. Paul, the Hartford Accident case was confined to the dispute
between the insurer and the insured. The court acknowledged that lex loci contractus was still
the rule in Kansas, but noted that there is an exception to the lex loci rule where the contract
contravenes the settled public policy of the state whose tribunal is invoked to enforce the contract.111 Said the court:
In St. Paul, the injured party was a Kansas resident fatally injured by a defective product that
was used in Kansas. Here, two Kansas residents were fatally injured in an accident that occurred
in Kansas. The argument that application of Indiana law is necessary to maintain a uniform
interpretation of the insurance policy finds support in the traditional notions underlying the
lex loci rule. However, the interest of Kansas exceeds Indianas interest in the resolution of the
instant controversy.112
Fluke Corp. v.Hartford Accident & Indemnity Co.113 is representative of cases decided under
the Restatement (Second).114 The insured, a Washington corporation with its principal place
of business in that state, had insured its nationwide operations through a commercial general
liability policy purchased from defendant in Washington. ACalifornia court found the insured
guilty of malicious prosecution and ordered it to pay $4 million in punitive damages. The
insured sued its insurer when the latter refused to provide coverage, asking for a declaratory
judgment on:(1)whether providing coverage for punitive damages or for the intentional tort
108. St. Paul, 777P.2d at1267.

109. Id. at1259.
110. 938P.2d 1281 (Kan. 1997), cert. denied, 522 U.S. 951 (1997).
111. 938P.2d at 128586.
112. Id. at1286.
113. 34P.3d 809 (Wash.2001).
114. For another case decided under the Restatement (Second) and applying forum law, see Meijer, Inc.
v.Gen. Star Indem. Co., 826 F.Supp.241 (W.D.Mich., 1993). The risk occurred in Ohio, whose law provided for punitive damages, but did not allow insurance for them, and the insurance contract was made
in Michigan, whose law did not allow punitive damages, but did allow insurance for them. The court
concluded that on balance, Michigan law should apply because Michigan had a paramount interest in
not subjecting its citizens [i.e. the plaintiff insured] to an uninsurable risk of punitive damages where it
does not expose its citizens even to the risk of punitive damages. Id. at 246. The Sixth Circuit affirmed in
an opinion designated as unpublished, but printed in 61 F.3d 903 (6th Cir.1995).
Insurance Conflicts
515
of malicious prosecution was contrary to Washingtons public policy, and (2)whether this case
should be governed by Washington law or California law, which precluded such coverage.
The court found that the insurance policy at issue provided coverage for both intentional
acts and punitive damages, and that such coverage did not offend Washingtons public policy.
Rather, said the court, the paramount public policy here is the commitment to upholding the
plain language of contracts.115 Because Washington law allowed coverage and California law
prohibited it, a conflict resulted, which the court resolved under Section 188 of the Restatement
(Second). The court concluded that the Section 188 factors overwhelmingly favored the application of Washington law because the execution, negotiation, and performance of the contract
all pointed to Washington; the plaintiff was headquartered in Washington and the defendant
had offices there; and the Section 6 factors also pointed toward Washingtonlaw.
The defendant invoked Section 193 of the Restatement and argued that California was the
principal location of the insured risk. The court noted that Section 193 calls for the application
of the law of the state which at the time of contracting was understood by the parties to be the
principal location of the insured risk. The court pointed out that, at the time of contracting,
neither party could anticipate the bringing of the malicious prosecution lawsuit in California.
Indeed, at the time of contracting, [the plaintiff s] vulnerability to a malicious persecution
were unidentifiable and infinite,116 said the court. Thus, the court refused to apply Section 193,
and concluded that, under Section 188 of the Restatement, Washington had the most significant relationship and its law governed, requiring the insurer to provide coverage.
Tesco Corp. (US) v.Steadfast Insurance Co.117 also decided in a Restatement (Second) state,
reached the same result. Tesco was a dispute between a Texas insured and an Illinois insurer.
A Colorado judgment ordered the insured to pay $1.5 million in punitive damages to one
of its workers who was injured while working on one of the insureds oil rigs in Colorado.
Invoking Colorado law, which prohibited insuring punitive damages, the insurer refused to
provide coverage. The insured sued the insurer in Texas and argued for the application of
Texas law, which allowed parties to insure themselves against punitive damages. The court
agreed with the insured and ruled accordingly. The court noted that when, as in this case,
the insurance policy covers risks situated in different states, Texas courts do not focus on the
location of the risk, but instead on the insurance contract and its contacts with the involved
states. In other words, although this court did not say so, Texas courts follow Section 188 of
the Restatement (Second), rather than Section 193. In this case, Section 188 pointed to Texas
because the insured had its principal place of business in Texas, and it had negotiated and purchased the policy there. Although the court acknowledged Colorados policy against insuring
punitive damages, it concluded that Colorados interest was not superior to the interest of
Texas, because, inter alia, [a]pplying Colorado law in this case would invalidate a portion of
[the] contract , and applying Texas law would uphold it.118
115. Fluke, 34P.3d at814.

116. Id. at816.
117. 2014 WL 4257737 (Tex. App.2014).
118. Id. at *5. In the meantime, an appellate court reversed the underlying Colorado judgment that had
ordered the payment of punitive damages. Because of this development, the Texas court withdrew as
moot the opinion discussed in the text. See Tesco Corporation (US) v.Steadfast Ins. Co. ___ S.W.3d ___,
2015 WL 456466 (Tex. App. Hous. (1 Dist.), Feb. 03,2015).
516
In Zurich Insurance Co. v.Shearson Lehman Hutton, Inc.,119 the insurer, Zurich,120 brought
an action in NewYork seeking a declaratory judgment that it did not have a duty to indemnify its insured, Shearson,121 for punitive damages that a Texas judgment awarded against
it. Texas law permitted such an indemnification, but NewYork law prohibited it. The insurance contract at issue was negotiated and issued in New York, and the claims under that
contract were handled in that state.122 Emphasizing that this was a contract conflict, despite
the presence of tort-like issues of punishment and deterrence,123 the New York Court
of Appeals examined Section 188 of the Restatement (Second) and concluded that most
of the Section 188 contacts pointed to New York law.124 The court took note of the more
specific section of Section 193 of the Restatement, which establishes a presumption in favor
of the law of the state which the parties understood was to be the principal location of the
insured risk. Predictably, the parties disagreed on what they understood to be the location
of the risk,125 and the court did not attempt to resolve that disagreement, because [u]nder
the circumstances of this case, even if we were to determine that the risks insured against
were located in [Texas], NewYork public policy would still apply.126 Noting [t]he strength
of NewYorks unambiguous policy against insurance coverage for punitive damages,127 the
court concluded:
That Texas has made another, equally legitimate choice, is not sufficient to compel a NewYork
court to disregard our States unswerving policy against permitting insurance indemnification
119. 642 N.E.2d 1065 (N.Y.1994).

120. Zurich, a Swiss corporation with its headquarters in Illinois, was treated as a New York insurer
because it maintained a New York selling office, which had acted as the main supervisor of its United
States branch and its accounts examiner.
121.Shearson had its principal place of business in New York. As is usually the case, the insured
responded by filing a suit in Texas, seeking a declaration of coverage. However, the insurer obtained a
NewYork preliminary injunction restraining the insured from pursuing this action.
122. The contract provided that Zurich agreed to pay all sums Shearson might become legally obligated
to pay as damages in personal injury actions, including actions for slander. The judgment imposed punitive damages on Shearson for slanderous statements made by two of its employees. Those statements
would have supported the award of punitive damages under NewYork slanderlaw.
123. 642 N.E.2d at1070.
124. See id. at 106869 (Shearson has its principal place of business in NewYork, where the insurance
contract was negotiated and issued, and where claims under the policy were handled [and] Zurich
has maintained a selling office in New York and qualifies as a New York insurer. Thus, the Second
Restatement factors point to the application of New York law.) Later on, the court also stated that
because a question of whether NewYorks interest precludes indemnification for punitive damages focuses
more on the conduct of the insured than on that of the insurer, the New York domicile of that insured
becomes an even weightier contact once the governmental interest is taken into consideration. Id. at1070.
125. Shearson contended that the parties orally had agreed that the law of the judgment state would
determine whether indemnification for punitive damages would be available. Zurich denied such an
agreement and argued that, because the risk insured against was the risk of financial loss, the risk was
located in NewYork, which was the center of Shearsons financial interests.
126. 642 N.E.2d at1069.
127. Id.
Insurance Conflicts
517
for punitive damage awards, when NewYork choice of law principles dictate the application of
that policy.128
Stonewall Surplus Lines Insurance Co. v. Johnson Controls, Inc.129 was decided under
Californias comparative impairment approach in combination with Section 193 of the
Restatement (Second). Johnson Controls (JC), a Wisconsin corporation, with manufacturing
facilities in 15 states, was ordered to pay $6.5million in punitive damages to a California plaintiff injured there by a battery that JC manufactured in California and sold to plaintiff in that
state. JCs excess insurers sued JC, seeking a declaratory judgment that it was not obligated
to indemnify JC for punitive damages. California law prohibited such indemnification, but
Wisconsin law allowed it. The court resolved the conflict by applying California law. The court
observed that, in reality, JC did not obtain a single policy which it could expect would be
governed by the law of a single state, but rather obtained separate policies which insure separate risks located in any number of states where the corporation does business.130 This multiple risk approach, as the court called it, provided a good means for measuring the competing
interests131 of the two states. Because California was the principal location of the risk created
by the defective battery, JC would reasonably expect California law would apply,132 not only
to JCs liability vis--vis a third party, but also to JCs claim for indemnification against its own
insurer. The application of that law, said the court, would not seriously impair the expectation
interest Wisconsin has sought to protect by permitting insurers to pay punitive damages.133 By
128. Id. at 1070. The court conceded that NewYorks policy of precluding indemnification for punitive
damageswas
[a]dmittedly . . . more problematic in cases where the liability for punitive damages is solely vicarious. . . . [and that, as in many other states,] the Texas courts have . . . tak[en] the view that coverage is particularly justifiable in cases of vicarious corporate liability . . . . New York, however, has
taken the position that the imposition of vicarious punitive damages can significantly advance the
deterrence goal by motivating an employer adequately to supervise its employees, particularly those
whose actions may reflect what has come to be known as the corporate culture and implicate the
institutional conscience. . . and to take preventive and corrective measures . . . . We have not deviated from this policy choice.
Id. In United States Gypsum Co. v.Admiral Insurance Co., 643 N.E.2d 1226 (Ill. App.1994), rehg denied (Jan.
09, 1995), appeal denied, 161 Ill.2d 542(Ill. 1995), the insured filed in Illinois an action for a declaratory
judgment against its many insurers seeking a declaration that the insurance policies issued to it by defendants provided coverage for punitive damages that the insured had been condemned to pay pursuant to a
South Carolina judgment. These policies contained language that was identical to that which was involved
in Zurich, except that one policy issued by defendant AMICO expressly allowed coverage for punitive
damages where permitted by law. 643 N.E.2d at 1250. Following a most significant contacts test, id., the
court applied the law of South Carolina to both types of policies. South Carolina, unlike Illinois, permitted
insurance coverage of punitive damages, and the insurers argued that the application of South Carolina
law in such circumstances would be contrary to Illinoiss public policy. The court rejected this argument,
both with respect to the insurance policies issued by AMICO and to those issued by the other defendants.
129. 17 Cal. Rptr. 2d 713 (Cal. App.,1993).
130. Id. at720.
131. Id.
132. Id.
133. Id.
518
contrast, failure to apply California law would severely impair Californias interests in deterring substandard conduct within its borders.134
I V. L I F E I N S UR A NCE
For life insurance contracts, Section 192 of the Restatement (Second) establishes a presumption in favor the law of the state in which the insured was domiciled at the time the insured
applied for the policy. The presumption is rebuttable upon proof that another state has a more
significant relationship under the principles of Section6.
In American National Insurance Co. v.Conestoga Settlement Trust,135 the dispute was over a
life insurance policy issued by a Texas insurer, insuring the life of a NewYork domiciliary for
$10million. When the insured died four years later, the insurer refused to pay the proceeds of
the policy to the beneficiarys assignee on the ground that the policy was fraudulently obtained
as part of a STOLI scheme.136 The assignee sued the insurer in Texas, invoking NewYork law,
under which the insurer could not cancel an insurance policy after the two-year contestability
period specified in the policy. Claiming that New Jersey was the place of negotiation, along
with other unspecified contacts, the insurer invoked the law of New Jersey, which allowed cancellation for fraud. Neither party argued for the application of Texas law, but the court noted
that it was essentially identical to NewYork law. The court rejected the insurers arguments for
applying Sections 188 and 145 (the general sections for contracts and torts) of the Restatement
(Second), and instead it applied Section 192, which deals specifically with life insurance contracts. The court found that the insurer was unable to rebut the presumption of Section 192 in
favor of the law of the insureds home-state at the time the policy was issued, NewYork, and
affirmed a judgment for the plaintiff.
In re Jackson National Life Insurance Co. Premium Litigation,137 the plaintiffs, both Mexico
domiciliaries, contacted an insurance agent working for the defendant insurer in Texas.
Following conversations and negotiations there and later in Mexico, the plaintiffs purchased
two life insurance policies, which were delivered to them in Texas. They sued the insurer on
several grounds, one of which sought the rescission of the contract under Mexican law. The
court began with the presumption of Section 192 of the Restatement (Second), which pointed
to Mexico, which was the insureds domicile at the time the insurance policy was issued. After
extensive discussion, the court concluded that the presumption was rebutted because the plaintiffs had acted in Texas when they contacted the insurance agent, and because the application
of Mexican law, which would invalidate the contract, would be contrary to the parties justified
expectations in having a valid and enforceable contract.
134. Id. The court noted that Wisconsin had a similar deterrence interest, which, however, it had subordinated to the interest of enforcing contracts.
135. 442 S.W.3d 589 (Tex. App.2014), petition for review filed (Oct. 13,2014).
136. ASTOLI (stranger-oriented life insurance) scheme typically involves an elderly person procuring a
life insurance policy on her own life with the intent to assign it to a third party in return for cash upfront.
137. 107 F. Supp.2d 841 (W.D. Mich. 2001). This case was filed in Texas, and transferred to a federal
district court in Michigan under the multidistrict litigation statute. Consequently, the court applied the
choice-of-law rules of the transferee state ofTexas.
Insurance Conflicts
519
Conflicts such as those involved in the above two cases are relatively easy to resolve, but
they become more difficult when the insured moves from one state to another between the
time the policy was issued and the time the insured risk materialized. In most of the litigated
cases, the second states law is more favorable to the insured than the first. From a constitutional perspective, the Supreme Courts Due Process precedents allow the second state to apply
its pro-insured law if it has sufficient contacts with the case so that application of its law does
not unfairly surprise the insurer.138 The question of whether to apply that law is answered by
the forums choice-of-law approach or statute, and most courts tend to answer it affirmatively.
When the second states law is less favorable to the insured than the law of the first state, the
application of the law of the second state is subject to the same constitutional test. However,
most courts tend to answer the choice-of-law question in the negative, refusing to apply the
forums pro-insurerlaw.
As noted earlier,139 many states have enacted statutes mandating the application of the
forum states insurance law to cases that have certain contacts with that state. For example, a
South Carolina statute provides:
All contracts of insurance on property, lives, or interests in this State are considered to be made
in the state and all contracts of insurance the applications for which are taken within the State are
considered to have been made within this State and are subject to the laws of this State.140
As documented elsewhere,141 statutes such as these are more common than generally
believed. These statutes are veritable unilateral choice-of-law rules in the sense that they mandate the application of the law of the enacting state without regard to the corresponding claims
of any other state to apply its law. Although some of these statutes may be overassertive, their
enactment removes the choice-of-law inquiry from the province of the courts and leaves them
only with the question of whether the application of the statute to a particular multistate case
is permissible under the Due Process clause.
Heslin-Kim v.CIGNA Group Ins.142 is a good illustration of this point. The insured bought a
life insurance policy in Georgia and, 13years later, moved to South Carolina, continuing to pay
premiums from there until his death, 6years later. Under a clause in the policy, the insureds
widow would not be entitled to a supplemental coverage for which the insured paid premiums
for less than 10 years. Because that clause would be invalid under South Carolina law, the
insurer argued for the application of Georgia law. Invoking the above statute, the court rejected
138. See Clay v.Sun Ins. Office, Ltd., 377 U.S. 179 (1964). Compare Home Ins. Co. v.Dick, 281 U.S. 397
(1930). For a discussion of these precedents, see supra 2830.
139. See supra 49394.
140. S.C. Code Ann. 38-61-10 (2015) . For another example, see Nev. Rev. Stat. 696B.020 (2015)
(providing that the statute applies to:1. All insurers authorized to transact insurance in this state; 2.All
insurers having policyholders resident in this state; [and] 3.All insurers against whom a claim under an
insurance contract may arise in this state. (emphasis added)).
141. See S.Symeonides, American Choice of Law at the Dawn of the 21st Century, 37 Willamette L.Rev.1,
2832 (2000).
142. 377 F.Supp.2d 527 (D.S.C.2005).
520
the argument and then explained why, under Allstate Insurance Co. v.Hague,143 the application
of South Carolina was constitutionally permissible, and indeed justifiable.
NGK Metals Corp. v. National Union Fire Insurance Co.144 presented the same pattern as
Heslin-Kim, except that the law of the forum state favored the insurer. The insured bought
a liability insurance policy while it had its principal place of business in Pennsylvania, then
moved to Tennessee, and, some years later, sued its insurer for breach of contract in Tennessee.
The insurer invoked a Tennessee statute, which provided that:
Every policy of insurance, issued to or for the benefit of any citizen or resident of this state
by any insurance company or association doing business in this state shall be held as made in
this state and construed solely according to the laws of this state.145
The court refused to apply this statute because it would effectively override Tennessees traditional choice-of-law rules and violate the parties intention to be bound by Pennsylvania
law.146 The court also reasoned that the statute was not enacted to harm the Tennessee policy
holder and, to apply it to the detriment of the policy holder [would violate] the very purpose of the statute.147
Kenney v.Independent Order of Foresters148 was an action for bad faith insurance practices
arising out of a life insurance policy that a Canadian insurer sold to a Virginia domiciliary.
After the purchase, the insured and his wife, who was the designated beneficiary, moved their
domicile to West Virginia, where the insured died, eight years later. His wife sued the insurer
in West Virginia, alleging bad faith in the way the insurer handled the claim. The defendant
argued for the application of Virginia law, which did not grant a cause of action, while the
plaintiff argued for the application of West Virginia law, which did. Following West Virginia
precedents, the Fourth Circuit characterized the wifes claim as a tort claim, which fell outside
the scope of a Virginia choice-of-law clause contained in the insurance policy. The court then
concluded that, under the lex loci delicti rule that West Virginia follows for other torts, the
law of West Virginia should govern because the injury occurred in that state. Recognizing
that occasionally West Virginia follows the Restatement (Second) in certain insurance conflicts, the court also applied Section 145 of the Restatement (Second) and reached the same
result. The court found that none of the four contacts listed in Section 145 pointed to Virginia,
whereas three of them pointed to West Virginia, thus triggering that states policy of protecting
its domiciliaries. As the court put it, West Virginias favoritism toward laws that align with its
own public policy trumps any comity to Virginias law.149
In Pastor v. Union Central Life Insurance Co.,150 a case involving a disability policy, the
insured moved his domicile from New Jersey to Florida between the time he purchased the
143. 449 U.S. 302 (1981).
144. 2005 WL 1115925 (E.D. Tenn.2005).
145. Tenn. Code Ann. 56-7-102 (2015).
146. NGK Metals, 2005 WL 1115925at*5.
147. Id.at*6.
148. 744 F.3d 901 (4th Cir.2014).
149. Id. at910.
150. 184 F.Supp.2d 1301 (S.D. Fla.2002).
Insurance Conflicts
521
policy and the time he suffered the disability. However, the Florida federal court was bound by
the lex loci contractus rule, which Florida continues to follow, and showed little inclination to
avoid it. The issue was the insurers alleged bad faith refusal to provide benefits, which some
courts characterize as a tort issue. With such a characterization, the court could have easily
applied Floridas pro-insured law, because the Supreme Court of Florida has abandoned the lex
loci delicti rule and Florida had significant contacts. However, because Florida precedents had
explicitly adopted a contract characterization, the court could not avoid the lex loci contractus
rule. The court concluded that New Jersey law should govern because the contract was made
in New Jersey.
Rather than ending the discussion there and blaming the outcome on bad precedents, the
court went on to praise the result as protective of the parties (but actually the insurers) expectations. The court overlooked the fact that almost 15years had elapsed between the purchase
of the policy and the occurrence of the risk, and that, for many of those years (the court did
not say how many), the insured was domiciled in Florida. The insurer knew of the change of
domicile and thus should have adjusted its expectations accordingly.
THIRTEEN
Statutes ofLimitation
From a practical perspective, statutes of limitation are as important in conflicts law as they are
in domestic law. Every year, the fate of hundreds of lawsuits hinges on the applicable statute
of limitations, be that of the forum state or of another involved state. In multistate cases, the
ability of an attorney to predict the courts choice of a statute correctly makes the difference
between winning and losing the lawsuit. As the discussion in this chapter illustrates, in many
cases such a prediction is not easy. The fact that the suit is filed within the forums limitation
period does not necessarily mean that the plaintiff will win on the issue of time. Occasionally,
the converse is truethe fact that the suit is filed after the expiration of the forums limitation
period does not necessarily mean that the suit will be dismissed as untimely. In both instances,
but many more in the first than in the second category, the forum may choose to apply the
statute of limitations of another involved state. This chapter discusses how American courts
make this choice.1
In civil law systems, the rules that determine the timeliness of an action are said to establish
what is known as liberative or extinctive prescription. These rules function the same way as
statutes of limitation. The accrual of a liberative prescription period extinguishes the obligees
1. Basic bibliography for the topics of this chapter includes: Hay, Borchers & Symeonides, Conflict of
Laws 15262; Felix & Whitten, American Conflicts 23447; Weintraub, Commentary 6682; A. Bain &
U. Colella, Interpreting Federal Statutes of Limitations, 37 Creighton L.Rev. 493 (2004); M.R. Grossman,
Statutes of Limitations and the Conflict of Laws: Modern Analysis, 1980 Ariz. St. L. J. 1 (1980); M.J.
Kaufman & J.M. Wunderlich, Toward a Just Measure of Repose:The Statute of Limitations for Securities
Fraud, 52 Wm. & Mary L.Rev. 1547 (2011); W.G. Lambertd, Focusing on Fulfilling the Goals:Rethinking
How Choice-of-Law Regimes Approach Statutes of Limitations, 65 Syracuse L. Rev. 491 (2015); S.M.
Malveaux, Statutes of Limitations: A Policy Analysis in the Context of Reparations Litigation, 74 Geo.
Wash. L.Rev. 68 (2005); J.A. Martin, Statutes of Limitations and Rationality in the Conflict of Laws, 19
Washburn L.J. 405 (1980); G.L. Milhollin, Interest Analysis and Conflicts between Statutes of Limitation,
27 Hastings L.J. 1 (1979); T.T. Ochoa & A.J. Wistrich, The Puzzling Purposes of Statutes of Limitations, 28
Pac. L.J. 453 (1997); E.J. Richardson, Eliminating the Limitations of Limitations Law, 29 Ariz. St. L.J. 1015
(1997); C.R. Schwartz, Conflicts of LawShopping for a Statute of LimitationSun Oil Co. v.Wortman,
37 U. Kan. L.Rev. 423 (1989); S. Walker, Forum Shopping for Stale Claims:Statutes of Limitations and
Conflict of Laws, 23 Akron L.Rev. 19 (1989); L. Weinberg, Choosing Law:The Limitations Debates, 1991
U. Ill. L.Rev. 683 (1991); A.J. Wistrich, Procrastination, Deadlines, and Statutes of Limitation, 50 Wm. &
Mary L.Rev. 607 (2008).
523
524
right to a judicial remedy, and thereby liberates the obligor from having to perform the obligation. However, the majority of civil law systems adopt the premise that, because liberative
prescription is a mode of extinction of an obligation, prescription is a substantive matter. As
such, it is governed by the same law as that which governs the obligation itself.2 In contrast,
the traditional American position on this issue is that statutes of limitation are procedural.
Consequently, as a general rule, the forum state applies its own statute of limitation, even if the
law of another state governs the merits of an action. This chapter examines the extent to which
American law continues to adhere to thisrule.
II. TH E T R A D I T I O N A L A M ER I CA N S YS T EM
A. THE BASIC APPROACH
The traditional, and to a great extent current, American approach has been that statutes of
limitation are always procedural and thus conflicts between these statutes should always be
resolved by applying the statute of the forum state.3 In essence, through this procedural characterization, the traditional approach exempts these statutes from the scrutiny of the choice-
of-law process.
Historically, this view origninates in the writings of seventeenth-century Dutch scholars, from where it migrated to English court decisions in the eigteenth century,4 and then to
American law, through the writings of Joseph Story.5 The U.S. Supreme Court espoused this
view as early as1839.6
Codifying this approach, the First Restatement provided as follows:
603. If the action is barred by the statute of limitations of the forum, no action can be maintained though the action is not barred in the state where the cause of actionarose.
604. If the action is not barred by the statute of limitations of the forum, an action can be
maintained, though the action is barred in the state where the cause of action arose.7
2. See, e.g., Rome I, Art. 12(1)(d); Rome II, Art. 15; Swiss Federal Statute on PIL, Art. 148 (1987); Law
Amending the Introductory Law to the German Civ. Code, Art. 32 (1986); Spanish Civ. Code, Art.
10(10); Hungarian Decree on PIL, 30(4) (1979); Bustamante Code, Art. 229; Peruvian Civ. Code, Art.
2099; Quebec Civ. Code, Art. 3131; Taiwan PIL codif. Art. 36. For a full list of citations, see Symeonides,
Codifying Choice of Law 137. Since 1984, England follows the same position. Seeid.
3. However, for Erie purposes, statutes of limitation are considered substantive. See Guaranty Trust Co.
v.York, 326 U.S. 99 (1945). This means that a federal court sitting in diversity must use the forums statute
of limitation or, in conflicts cases, the statute chosen by the forums choice-of-law rules. See supra 3742.
4. See E.G. Lorenzen, The Statute of Limitations and the Conflict of Laws, 28 Yale L.J. 492 (1919).
5. See J. Story, Commentaries on the Conflict of Laws 96265 (3d ed.1846).
6. See MElmoyle v.Cohen, 38 U.S. (13 Pet.) 312 (1839).
7. Restatement (First) Conflict of Laws, 603604 . The Uniform Statute of Limitations on Foreign
Claims Act of 1957 took a more drastic position. It authorized the application of the limitation period
of either the forum state or the state where the cause of action arose, whichever period was shorter.
Its drafters had to withdraw this Act in 1978 because only three states had adopted it (Oklahoma,
Pennsylvania, and West Virginia).
Statutes of Limitation
525
Obviously, this approach rewards shopping for the forum with the longest limitation
period. Because in many multistate cases several states may have jurisdiction, a plaintiff who
sues in the state with the longest limitation period is automatically guaranteed a victory on the
issue of timeliness, even if his lawsuit was untimely in all other involved states.
One well-known case involving such a scenario is Keeton v.Hustler Magazine, Inc.,8 in which
the court applied the forums unusually long six-year statute of limitation to an action barred by
the statutes of all other states of the United States. Keeton was a defamation action filed in New
Hampshire by a NewYork plaintiff against a magazine publisher (a resident of Ohio and later
California) arising out of a publication five years earlier. By the time of the lawsuit, the statutes
of limitation of all other states barred the action. New Hampshires only connection with the
case was that 1percent of the magazines sales occurred in that state. Under the single publication rule, the plaintiff could recover in one action damages for the injuries she suffered in all
states.9 Characterizing New Hampshires statute of limitation as procedural, the court held that
the statute applied in this case, and allowed the plaintiff s action to go forward.
To its credit, the court did not simply invoke the traditional mechanical characterization;
in fact, it acknowledged that statutes of limitations do differ from other procedural rules.10
However, the court concluded that the varied purposes that statutes of limitations are meant
to serve justify the application of forum law, and thus the essential treatment of such statutes
as procedural rules, in most instances.11 After all, the court reasoned, the forum is best
able to decide when claims are stale and only the forum has a significant interest in
insuring that its dockets are not burdened by such claims.12 The court concluded that, in any
case in which either party is a New Hampshire resident or the cause of action arose in New
Hampshire, the sum of our interests in applying our own statute, in combination with the
benefit of simplification afforded by regular application of our own rule, will tip the choice of
law balance in favor of our own limitations period to cases tried here.13
The court also asserted that New Hampshire had a certain interest in applying its own
statute14 and that, although other states may have had countervailing interests, the task of
assaying those interests was too complex an undertaking.15 Finally, the court explained why
8. 549 A.2d 1187 (N.H.1988).
9. Although this rule is substantive rather than jurisdictional, it produces almost the opposite results
from the rule established by the Court of Justice of the European Communities in Fiona Shevill v.Press
Alliance SA, Case C 68/93, [1995] ECR I415, at 33, according to which the state of injury has jurisdiction only with regard to the injury that occurred in thatstate.
10. Keeton, 549 A.2d at1192.
11. Id.
12. Id.
13. Id.
14. See id. at 1193 (Although our own interest in striking an appropriate balance between promoting
protection for defendants and legitimate recovery for plaintiffs is less great than it would be if defendants
or plaintiff were New Hampshire residents, it is nonetheless substantial because the defendants distributed, in this State, a significant number of libelous publications giving rise to the injuries for which
[plaintiff] sues. [O]ur general interest in providing plaintiffs sufficient time to bring suit is enhanced
when the injuries for which suit is brought were incurred in this State.).
15. See id. at 1193 ([F]oreign statutes obviously express what foreign States take to be an appropriate
balance among their interests regarding courts, defendants, and plaintiffs. However, it would be nearly
impossible for us to discern the weight such States intend to accord these varied interests [and to]
526
it would reach the same result under Leflars choice-influencing considerations, which is New
Hampshires approach for substantive-law conflicts.16
B. LEGISLATIVE EXCEPTIONS:BORROWING STATUTES

The mechanical character of the traditional approach is problematic as a whole, but it is most
deficient in cases such as Keeton in which the forum has a longer limitation period than the
other involved state or states. For this reason, most criticisms againstand most efforts to
improvethe traditional approach have concentrated on this category of cases. As early as the
middle of the nineteenth century, state legislatures recognized the forum-shopping problem
this approach encourages and began enacting statutes known as borrowing statutes.17 By the
middle of the twentieth century, 38 states had enacted such statutes in one form or another.18
These statutes authorize the borrowing and application of the shorter limitation period
of another state. Although they vary in scope and detail, all of these statutes apply only when
the forums limitation period is longer, not shorter, than that of the other state.19 Typically, the
state whose statute is borrowed is the state in which the cause of action arose, accrued, or
originated. In identifying that state, many courts continue to employ traditional mechanical
formulae, such as the last event rule in torts, even when they sit in states that have abandoned
the traditional approach in tort and contract conflicts.20
embark on the highly uncertain task of discerning precisely what weight a foreign legislature intended to
accord the varied interests that statutes of limitations address.).
16. See Keeton, 549 A.2d at 119498. In an eloquent dissent, Justice David Souter (later of the U.S.
Supreme Court) refuted all of the majoritys conclusions.
17. For discussions of borrowing statutes, see J.W. Ester, Borrowing Statutes of Limitation and Conflict of
Laws, 15 U. Fla. L.Rev. 33 (1962); D.H. Vernon, Statutes of Limitation in the Conflict of Laws:Borrowing
Statutes, 32 Rocky Mt. L. Rev. 287 (1960); I.J. Wani, Borrowing Statutes, Statutes of Limitations and
Modern Choice of Law, 57 UMKC L.Rev. 681 (1989).
18. For citations, see S. Symeonides, Louisiana Conflicts Law:Two Surprises, 54 La. L.Rev. 497, 532
(1994). The only jurisdictions that did not enact such a statute are Arkansas, Connecticut, the District
of Columbia, Georgia, Maryland, Michigan, New Jersey, New Hampshire, New Mexico, North Dakota,
South Carolina, South Dakota, and Vermont. In recent years, Ohio and Texas have repealed their borrowing statute.
19. The only exception is the Oklahoma borrowing statute, which provides that [t]he period of limitation applicable to a claim accruing outside of this state shall be that prescribed either by the law of the
place where the claim accrued or by the law of this state, whichever last bars the claim. Okla. Stat. Ann.
tit. 12, 105 (2014) (emphasis added). For cases involving this statute, see Consol. Grain & Barge Co.
v.Structural Sys., Inc., 212P.3d 1168 (Okla. 2009); Masquat v.DaimlerChrysler Corp., 195P.3d 48 (Okla.
2008), rehg denied (Oct. 27,2008).
20. See, e.g., Ennenga v.Starns, 677 F.3d 766 (7th Cir. 2012); In re Coudert Bros. LLP, 673 F.3d 180 (2d Cir.
2012); Muto v.CBS Corp., 668 F.3d 53 (2d Cir. 2012); Chang v.Baxter Healthcare Corp., 599 F.3d 728 (7th
Cir. 2010), rehg and rehg en banc denied (Apr. 26, 2010), cert. denied 562 U.S. 895 (2010); Combs v. Intl
Ins. Co., 354 F.3d 568 (6th Cir. 2004); CMACO Auto. Sys., Inc. v.Wanxiang Am. Corp., 589 F.3d 235 (6th
Cir. 2009); Bldg. Erection Servs., Inc. v.JLG, Inc., 376 F.3d 800 (8th Cir. 2004); Cuthbertson v.Uhley, 509
F.2d 225 (8th Cir. 1975); Johnson v. Deltadynamics, Inc., 813 F.2d 944 (7th Cir. 1987); Huynh v. Chase
Manhattan Bank, 465 F.3d 992 (9th Cir. 2006); Willits v.Peabody Coal Co., 188 F.3d 510 (6th Cir. 1999);
Rajala v.Donnelly Meiners Jordan Kline P.C., 193 F.3d 925 (8th Cir. 1999); Stupak v.Hoffman-La Roche,
527
As noted earlier, these statutes differ in their specifics. For example, although the borrowing statutes of 35 out of the 38 states encompass all actions or causes of action, without
regard to whether they arise out of contracts, torts, etc., Wisconsin confined its statute to personal injury actions, and Virginias and West Virginias statutes apply only to actions arising
from contracts made and to be performed outside the forum state.21 Moreover, many of these
statutes exempt causes of action held by persons who, at the time the action accrued (and in
some instances at the time of the filing), were domiciled in the forum state.22 At least one statute has been interpreted as being applicable only if both parties are nonresidents.23
Borrowing statutes are potent weapons for curtailing forum shopping, particularly in states
that have unusually long limitation periods.24 The lack of such a statute in New Hampshire
deprived the Keeton court of a useful weapon. The availability of such a weapon, however, does
not always guarantee its use. This point is well illustrated by cases from Mississippi, which (like
New Hampshire) had a six-year limitation period for tort claims until the early 1990s. These
cases exhibited great reluctance to apply Mississippis borrowing statute, even when it seemed
to fit a case in all respects.25
Inc., 315 F.Supp.2d 970 (E.D. Wis. 2004); Trzecki v.Gruenewald, 532 S.W.2d 209 (Mo. 1976); Global Fin.
Corp. v.Triarc Corp., 715 N.E.2d 482 (N.Y. 1999), discussed infra 52830; Jenkins v.Panama Canal Ry. Co.,
208P.3d 238 (Colo. 2009); Guertin v.Harbour Assurance Co. of Bermuda, Ltd., 415 N.W.2d 831 (Wis. 1987);
Dorris v.McClanahan, 725 S.W.2d 870 (Mo. 1987); Masquat v.DaimlerChrysler Corp., 195P.3d 48 (Okla.
2008), rehg denied (Oct. 27, 2008); Abraham v.Gen. Cas. Co. of Wisconsin, 576 N.W.2d 46 (Wis. 1998); State
ex rel. Old Dominion Freight Line, Inc. v.Dally, 369 S.W.3d 773 (Mo. Ct. App.2012); Wright v.Campbell,
277 S.W.3d 771 (Mo. Ct. App.2009), transfer denied (Mar. 3, 2009), transfer denied (Mar. 31, 2009); Eaton
v.Keyser, 862 N.Y.S.2d 640 (N.Y. App. Div. 2008); Stivers v.Ellington, 140 S.W.3d 599 (Ky. Ct. App.2004).
21. See Symeonides, supra note 18, at 53233.
22. See Chang v.Baxter Healthcare Corp., 599 F.3d 728 (7th Cir. 2010), rehg and rehg en banc denied (Apr
26, 2010), cert. denied 562 U.S. 895 (California borrowing statute held applicable because plaintiffs were
domiciled in Taiwan and claim accrued there); Huynh v. Chase Manhattan Bank, 465 F.3d 992 (9th Cir.
2006)(California borrowing statute held inapplicable because plaintiffs were domiciled in forum state at time
of filing, but not at the time the action accrued); Flowers v.Carville, 310 F.3d 118 (9th Cir. 2002)(a differently
worded Nevada statute held applicable because claimant was a forum resident at time of filing, though not at
time of accrual). For cases involving corporations, see Paul Fire & Marine Ins. Co. v.Paw Paws Camper City,
Inc., 346 F.3d 153 (5th Cir. 2003); Telular Corp. v.Mentor Graphics Corp., 282 F.Supp.2d 869 (N.D.Ill.2003).
23. See Telular Corp. v.Mentor Graphics Corp., 282 F.Supp.2d 869 (N.D. Ill. 2003)(involving the Illinois
statute).
24. For a contrary view, see I.J. Wani, Borrowing Statutes, Statutes of Limitations and Modern Choice of
Law, 57 UMKC L.Rev. 681 (1989):
Borrowing statutes, however, hardly impede forum shopping. For one thing there are many different
varieties of borrowing statutes each one subject to different interpretations. Although these statutes
seemingly use the same underlying concept of accrual, there is no consensus on the meaning of
accrual and in reality the concept may be undefinable. Even if one concedes the relevance of the
accrual concept in choice of analysis, as a practical matter it is often impossible to determine the
place of accrual. The asbestosis cases illustrate the futility of the attempt to locate the place of accrual,
and as those cases show, courts tend to differ on the place of accrual even in similar circumstances.
Id. at 690 (footnotes omitted).
25. See, e.g., Shewbrooks v.A.C. & S., Inc., 529 So. 2d 557 (Miss. 1988); Williams v.Taylor Machinery,
Inc., 529 So. 2d 606 (Miss.1988).
528
C. JUDICIAL EXCEPTIONS
Courts following the procedural characterization of statutes of limitation have also developed
certain exceptions to the lex fori rule. One such exception authorizes the court to apply a foreign limitation period that is shorter than the forums, if the foreign period is conceived or perceived as a condition for the exercise of the right so that the accrual of the period extinguishes
the right itself, not just the remedy.26 The First Restatement recognized this exception by providing that [i]f by law of the state which has created a right of action, it is made a condition
of the right that it shall expire after a certain period of limitation has elapsed, no action begun
after the period has elapsed can be maintained in any state.27
The common example of the application of this exception is a wrongful death action,
which, not being recognized by the common law, was conferred by statute, ostensibly on the
condition that it be brought within the time specified in the statute.28 Another example is a
statute of repose for product manufacturers. These statutes extinguish the victims action after
the passage of a specified number of years from the time the product was marketed, regardless
of when the injury occurred. Courts usually characterize these statutes as substantive, and thus
employ the above exception whenever the foreign statute bars the action.29
D.CURRENTSTATUS
The American choice-of-law revolution has made only limited inroads on the traditional
approach to statute of limitation conflicts. Thus, a slight majority of states, 28, continue to follow the traditional procedural characterization of limitation periods. Table 35, following page,
lists these states. The first column, labeled Traditional I, lists the states that continue to follow
the traditional approach in either tort or contract conflicts, as well as in statutes-of-limitation
conflicts.30 The second column, labeled Traditional II, lists the states that have abandoned the
traditional approach in tort and contract conflicts, but not in limitations conflicts.
It is noteworthy that one of the latter states is New York, which led the revolution in
both tort and contract conflicts. Nevertheless, in Global Financial Corp. v. Triarc Corp.,31 the
NewYork Court of Appeals rejected a plea to modernize its approach to limitation conflicts.
Global Financial involved a contract action brought by a Delaware corporation that had its
principal place of business in Pennsylvania. The action was barred by the statutes of limitation
of both Delaware and Pennsylvania, but would be timely under New Yorks six-year statute
26. See The Harrisburg, 119 U.S. 199 (1886); Davis v.Mills, 194 U.S. 451 (1904); Taylor v.Cranberry Iron
& Coal Co., 94 N.C. 525 (1886); Bournias v.Atlantic Maritime Co., 220 F.2d 152 (2d Cir. 1955); Siroonian
v.Textron, Inc., 844 F.2d 289 (5th Cir. 1988); Shell Oil Co. v.Hickman, 716 F.Supp.931 (W.D. Va.1989).
28. See Gomez v.ITT Educ. Serv., Inc., 71 S.W.3d 542 (Ark.2002).
29. See Baxter v.Sturm, Ruger & Co., Inc., 644 A.2d 1297 (Conn. 1994); Cosme v.Whitin Mach. Works,
Inc., 632 N.E.2d 832 (Mass. 1994); Tanges v.Heidelberg N.Am., Inc., 93 N.Y.2d 48 (1999).
30. Of the 11 states listed in the first column, North Carolina follows the traditional approach in torts
(but not in contracts), whereas Oklahoma and Tennessee follow the traditional approach in contracts (but
not in torts).
31. 715 N.E.2d 482 (N.Y.1999).
529
Table35. States Following theTraditional Approach

in Limitation Conflicts
Traditional I
Traditional II
Alabama
Georgia
Kansas
Maryland
NewMexico
North Carolina
Oklahoma
South Carolina
Tennessee
Virginia
Wyoming
Alaska
Connecticut
Dist. of Columbia
Hawaii
Illinois
Kentucky
Maine
Mississippi
Missouri
Nevada
New Hampshire
NewYork
Pennsylvania
SouthDakota
Texas
Utah
Vermont
17
11
of limitation. The plaintiff argued that, because the contract was negotiated, executed, substantially performed, and breached in New York, that states law would be applicable to the
merits of the action under NewYorks center of gravity approach.32 Consequently, his action
accrued in New York rather than elsewhere, thus rendering New Yorks borrowing statute
(CPLR 202)inapplicable.
The Court of Appeals rejected plaintiff s argument by stating that there is a significant difference between a choice-of-law question, which is a matter of common law, and this Statute
of Limitations issue, which is governed by particular terms of the CPLR.33 The court found
no evidence that, in using the word accrued, the NewYork Legislature intended it to mean
anything other than the time when, and the place where, the plaintiff first had the right to
bring the cause of action.34 The court concluded that [b]ecause the borrowing statute
predate[s] the substantive choice-of-law interest analysis test used in tort cases and the
center of gravity approach used in contract cases , these choice-of-law analyses are inapplicable to the question of statutory construction presented by CPLR 202.35 The court noted
that the borrowing statute is designed to add clarity to the law and to provide the certainty
of uniform application to litigants [and] [t]his goal is better served by a rule requiring the
32. See Zurich Ins. Co. v.Shearson Lehman Hutton, 642 N.E.2d 1065 (N.Y. 1994); In re Allstate Ins. Co.
[Stolarz], 613 N.E.2d 936 (N.Y. 1993), discussed supra16263.
33. Global, 715 N.E.2d at484.
34. Id.
35. Id. at485.
530
single determination than by a rule dependent on a litany of events relevant to the center
of gravity of a contract dispute.36
Likewise, in Abraham v. General Casualty Co. of Wisconsin,37 the Wisconsin Supreme
Court, which also abandoned the traditional approach in tort and contract conflicts, reversed
a lower court decision that had applied a center of gravity approach in determining whether
a contract action was a foreign cause of action for purposes of applying Wisconsins borrowing statute. The Wisconsin Supreme Court held that a claim sounding in contract is a
foreign cause of action when the final significant event giving rise to a suable claim occurs
outside the state of Wisconsin.38 The court reaffirmed its earlier decisions, which had adopted
a last-event rule in applying the borrowing statute to tort causes of action, and had refused
to extend to such cases the flexible choice-of-law approach Wisconsin follows with regard to
the merits of these actions. To do otherwise, the court reasoned, would be contrary to the
foremost policies advanced by a borrowing statute [namely,] the avoidance of uncertainty
in assessing the timeliness of bringing an action in this state without the necessity of a court
hearing to make such a determination, thereby preserving scarce judicial resources.39
In Combs v. International Insurance Co.,40 a federal court had to answer the question of
whether Kentuckys highest court would continue to interpret that states borrowing statute
in the traditional territorialist way. Like most other borrowing statutes, the Kentucky statute
mandated the application of the shorter limitation statute of the state in which the cause of
action arose. Here, the question was whether the cause of action arose in the state of the
so-called last event, or rather in the state of the most significant relationship. The court
reminded itself of its limited Erie role and the need to handle this issue charily,41 to be
extremely cautious about adopting substantive innovation in state law,42 and to even avoid
considering the pros and cons of innovative theories.43 Nevertheless, finding it necessary to
respond to academic exhortations44 in favor of abandoning the territorialist interpretation,
the court launched into a 20-page diatribe on why it would be a terrible idea to abandon that
interpretation. The court offered three reasons in defense of this position: First, borrowing
statutes impede forum shopping;45 Second, strictly enforcing borrowing statutes best serves
the purpose of statutes of limitation and repose;46 and Third, borrowing statutes reflect
36. Id. at 48586. The court then cited with approval cases that held that a cause of action for economic
injury such as the one involved here accrues in the state where the plaintiff resides and sustains the economic impact of the loss. In this case, that state would be either Pennsylvania or Delaware but, because
the action was barred under the law of both states, it was unnecessary to determine in which of the two
the action accrued. Either way, the action was barred under NewYorks borrowing statute.
37. 576 N.W.2d 46 (Wis.1998).
38. Id. at5354.
39. Id. at 53 (quotation marks and citation omitted).
40. 354 F.3d 568 (6th Cir.2004).
41. Combs, 354 F.3d at578.
42. Id.
43. Id.
44. Id. at589.
45. Id.
46. Id.
531
respect for state sovereignty.47 Obviously, these reasons may explain why it is a good idea for
a state to enact a borrowing statute, but they do not explain why such a statute must be interpreted in a territorialistway.
I I I . M O D E R N A PPR OA CHES
A. THE NEW UNIFORMACT
In 1982, the Commissioners on Uniform State Laws promulgated a new uniform Act,48 which,
somewhat surprisingly, moved to the other end of the spectrum. It adopted the premise that limitation periods are a substantive matter that should be governed by the law of the state on which
the claim is substantively based (hereafter lex causae).49 Section 2 of the Uniform Act provides:
[I]f a claim is substantively based:(1)upon the law of one other state, the limitation period of
that state applies; or (2)upon the law of more than one state, the limitation period of one of those
states chosen by the law of conflict of laws of [the forum], applies.50
Recognizing that the forum often has important interests in matters of limitation, or that its
views on the matter deserve deference in certain cases, the Act makes concessions in favor of
the lex fori. Section 4 of the Act authorizes resort to the lex fori if the limitation period of the
lex causae is substantially different from the limitation period of the forum state and has not
afforded a fair opportunity to sue upon, or imposes an unfair burden in defending against, the
claim.51 Indeed, a foreign limitation period that the lex fori considers unduly short may offend
the forums sense of fairness to plaintiffs, despite the fact that a short period reduces the forum
courts workload. Conversely, a foreign limitation period that the lex fori considers unduly long
may offend the forums sense of fairness to defendants, even if the particular defendant is not
a domiciliary of the forumstate.
Seven states have adopted the Uniform Act: Colorado, Minnesota, Montana,
Nebraska, North Dakota, Oregon, and Washington.52 Cropp v. Interstate Distributor
47. Combs, 354 F.3d at 590. See id. at 591 (If Kentucky fails to respect that a cause of action accrues in a
foreign jurisdiction, like NewYork, although the final event necessary for the cause of action occurred in
NewYork, Kentucky shows disrespect for NewYorks territoriality in derogation of comity principles that
the Kentucky Supreme Court may value. By failing to recognize NewYorks decision, Kentucky would
effectively undermine a quasi-substantive component of NewYork lawnot something we should lightly
assume the Kentucky Supreme Court would choose todo.).
48. See Uniform Conflict of Laws-Limitations Act, 12 U.L.A. 56 (2015). For an authoritative discussion
of the Act by the chairman of the Drafting Committee, see R. Leflar, The New ConflictsLimitations Act,
35 Mercer L.Rev. 461 (19831984).
49. Although not directly influenced by the civil law, the new Act coincidentally reflects the civil-law
approach of characterizing statutes of limitations as substantive. See supra note 2.
50. Uniform Act,2.
51. Id.4.
52. For cases applying the Uniform Act (in addition to those discussed in the text), see, e.g., Whitney
v.Guys, Inc., 700 F.3d 1118 (8th Cir. 2012)(decided under Minnesota conflicts law); Avery v.First Resolution
532
Co.,53 an Oregon case, is representative of cases decided under the Act. Cropp involved the
question of how a court identifies the state on whose law the claim is substantively based
in applying Section 2 of the Act. Cropp arose out of a California traffic accident in which
two Oregon domiciliaries had been injured by a truck owned by a Washington corporation
and operated by a Nevada driver. Sixteen months after the accident, plaintiffs sued both
the owner and the driver of the truck in Oregon. The action would have been timely under
Oregons two-year statute of limitation, but not under Californias one-year limitation. The
plaintiffs charged the defendant driver with negligen[ce] in failing to keep a proper lookout, failing to keep his vehicle under control, [and] driving his truck at a speed that was
greater than reasonable and prudent under the circumstances.54 Correctly perceiving these
charges as pertaining to conduct-regulation (although without using this terminology), the
court concluded that they had to be governed by the substantive law of California, including
its Vehicle Code.55 Accordingly, the court held that the plaintiffs claims were substantively
based upon California law, and pursuant to the Act, Californias one-year statute of limitation was applicable, barring the action.
The dissenting opinion strongly disputed the majoritys conclusion that the plaintiffs claim
was substantively based on California law, contending instead that the state on whose law the
claim is substantively based should be identified through a more complete choice-of-law analysis. However, rather than undertaking such an analysis of the substantive basis of the claim,
the dissent focused primarily on the conflict between the limitation laws of the involved states.
This analysis led to the conclusion that this was a false conflict in which only Oregon had an
interest in applying its statute of limitations. The conclusion was based on the otherwise correct assumptions that: (1) Oregon was interested in applying its two-year limitation for the
protection of Oregon plaintiffs; (2) the states in which the two defendants were domiciled,
Washington and Nevada, had exhibited no interest in protecting them as both states provided
for longer limitations periods than did Oregon and California; and (3)California did not have
any interest in applying its one-year limitation, which was intended to protect California courts
and California defendants, neither of whom was involved in thiscase.
To the extent that the dissents analysis focused on the conflicting limitation laws rather
than on the potentially conflicting tort laws, the analysis was eminently appropriate. The problem was that, unlike the approaches discussed in the next two Sections, both the language and
the history behind the Uniform Act make it clear that the Act does not contemplate a separate
Mgmt. Corp., 568 F.3d 1018 (9th Cir. 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 554 (2009) (decided under
Oregon conflicts law); Fields v. Legacy Health System, 413 F.3d 943 (9th Cir. 2005) (two cases decided
under Oregon and Washington conflicts law, respectively); Fee v. Great Bear Lodge of Wisconsin Dells,
L.L.C., 2004 WL 898916 (D. Minn. Apr. 9, 2004); Jenkins v. Panama Canal Ry. Co., 208 P.3d 238 (Colo.
2009); Fleeger v.Wyeth, 771 N.W.2d 524 (Minn. 2009); Unifund CCR Partners v.Porras, 275P.3d 992 (Or.
Ct. App.2012), review denied, 352 Or. 378 (Sept. 13, 2012); Unifund CCR Partners v.Deboer, 277P.3d 562
(Or. Ct. App.2012), review denied, 352 Or. 378 (Sept. 13, 2012); Unifund CCR Partners v.Sunde, 260P.3d
915 (Wash. Ct. App.2011). In 1999, Arkansas repealed its earlier adoption of the Act. See Gomez v.ITT
Educ. Servs., Inc., 71 S.W.3d 542 (Ark. 2002). For a case decided under the Act because the pertinent facts
occurred before its repeal, see Hall v.Summit Contractors, Inc., 158 S.W.3d 185 (Ark.2004).
53. 880P.2d 464 (Or. Ct. App.1994).
54. Id. at465.
55. Id. at 465566 (Oregon motor vehicle laws do not define or regulate the operation of motor vehicles
in California.).
533
analysis of the statute-of-limitation conflict, as opposed to the underlying substantive-law conflict.56 This is one of the Acts majorflaws.
Other cases decided under the Uniform Act have accepted its single-analysis premise. For
example, in Rice v. Dow Chemical Co.,57 a products liability case, the court faced a conflict
between the three-year statute of limitation of the forum, Washington, and the two-year statute
of limitation of the state of the injury, Oregon. Finding that the substantive law of Oregon was
applicable to the merits of the action, the court concluded, without a separate choice-of-law
analysis, that the claim would be substantively based on Oregon law, thus making applicable
Oregons statute of limitation barring the action.58
Williams v.State59 involved a wrongful death action filed against the states of Oregon and
Washington after the expiration of Oregons two-year limitation but before the expiration of
Washingtons three-year limitation. Plaintiff s decedent, an Oregon resident, was killed when his
truck collided with the superstructure on the Washington side of a bridge that connects Oregon
and Washington.60 With regard to plaintiff s substantive claims, the Washington court compared the two states contacts under the Restatement (Second) and found them to be nearly
equal, although slightly more significant for Washington.61 Noting that duplicate prizes are not
awarded in case of ties,62 the court opined that Section 145 of the Restatement (Second) makes
clear that forum law applies in such cases.63 The court held that the forums statute of limitation
also applied, noting that, under Rice, the limitations issue is not subject to conflict of laws
methodology because Washington adopted the Uniform Conflict of Laws-Limitation Act.64
As noted earlier, Section 4 of the Uniform Act contains an escape clause for cases in which
the foreign limitation period is either too short or too long. Specifically, the escape authorizes
resort to the lex fori if the foreign limitation period is substantially different from the limitation
period of [the forum] State and has not afforded a fair opportunity to sue upon or imposes an
unfair burden in defending against, the claim.65 In Vicknair v. Phelps Dodge Industries, Inc.,66
the court held that the burden of persuasion for applying the escape clause when the foreign
limitation period is too short rests with the plaintiffs rather than the defendants.67 In Whitney
56. Section 2(2) of the Act, supra, contemplates a (perhaps separate) choice-of-law analysis only when a
claim is substantively based [u]pon the law of more than one state.
57. 875P.2d 1213 (Wash.1994).
58. For another case decided under the Uniform Act and adopting the same position, see Hall v.Summit
Contractors, Inc., 158 S.W.3d 185 (Ark.2004).
59. 885P.2d 845 (Wash. Ct. App.1994).
60. The bridge had been constructed and was maintained under agreement by both states, but Washington
maintained the side on which the accident occurred.
61. 885P.2d at849.
62. Id.
63. Id. at850.
64. Id. (quoting Rice, supra). Without entirely avoiding such an analysis, the court concluded that
Washingtons interests are greater in relation to the statute of limitation issue. Id. Thus, plaintiff s action
against the state of Washington was allowed to proceed.
65. Uniform Act4.
66. 794 N.W.2d 746 (N.D.2011).
67. The plaintiffs were domiciled in states other than North Dakota, and their claims against manufacturers of asbestos-containing products were barred by the statutes of limitations of all other states. The plaintiffs sued in North Dakota, seeking to take advantage of that states six-year statute of limitation, which
534
v.Guys, Inc.,68 the court found this part of the escape clause inapplicable to a conflict between
Minnesotas six-year statute of limitation and Delawares three-year statute. Calling it an unfairness exception, the court concluded that there is nothing unfair or unreasonable about a three-
year statute of limitations, as contrasted with a six-year statute of limitations.69 The court held
that the Delaware statute applied to a dispute involving the ownership of shares in a Delaware
corporation. The court noted that, by adopting the Uniform Act, Minnesota had rejected the
home-rule as to periods of limitations and has clearly demonstrated that it does not have a
strong governmental interest in applying its own statutes of limitations.70
Unifund CCR Partners v.Sunde71 involved the applicability of the escape clause in cases in which
the foreign limitation period is arguably too long. Adebt collector as assignee of a Delaware credit
card company sued a Washington debtor in Washington. The action would be barred by Delawares
three-year statute of limitation, but not by Washingtons six-year statute. However, Delaware also
had a tolling statute that suspended the limitation period for as long as the debtor was not subject
to jurisdiction in Delaware, which in this case meant forever. The court concluded that this indefinite and potentially perpetual extension of the Delaware limitation period triggered the above-
quoted escape clause because it impose[d]an unfair burden in defending against the claim.
However, unfortunately for the debtor, the escape led straight back to Washingtons six-year statute,
under which the action was timely. In CACV of Colorado, LLC v.Steven,72 which involved essentially identical facts, the court reached the same result and explained why the escape was applicable:
[T]he difference between Oregons limitation period and Delawares limitation periodwhich
could run indefinitely because defendant may never become subject to service of process in
Delawareis indisputably substantial. Furthermore, the possibility that Delawares limitation
period for plaintiff s claim could be indefinitely tolled indisputably imposes an unfair burden on
defendant in defending against the claimviz., defendant would be unable to avail herself of a
statute-of-limitation defense.73
Although the Uniform Act was a significant improvement over the traditional lex fori
approach, the Act fell short in two respects. First, as the above cases illustrate, the Act does not
contemplate a separate analysis of the limitation conflict, as opposed to the underlying substantive law conflict. Second, the Act may have overcorrected the traditional approach by assuming
that statutes of limitation are always substantive. Sometimes, this is simply not the case. For
example, some statutes of limitation are designed to serve purely procedural interests, such
as relieving courts from the burden of hearing stale claims. When the forum state has such a
statute with a shorter period than the foreign statute, then (unless the Section 4 exception is
applicable), the Act deprives the forum of the ability to protect those interests.
would allow the action. The court dismissed the action after finding that the plaintiffs failed to carry the
burden of showing that the escape should apply. For a case holding that this escape is inapplicable to
statutes of repose, see Fields v.Legacy Health Sys., 413 F.3d 943 (9th Cir.2005).
68. 700 F.3d 1118 (8th Cir. 2012)(decided under Minnesota conflictslaw).
69. Id. at1126.
70. Id.
71. 260P.3d 915 (Wash. Ct. App.2011).
72. 274P.3d 859 (Or. Ct. App.2012), review denied, 352 Or. 377 (Sept. 13,2012).
73. CACV, 274P.3dat86.
535
B. NEW JUDICIAL APPROACHES

The clearest departure from the traditional approach came in the 1973 decision of the New
Jersey Supreme Court in Heavner v.Uniroyal, Inc.74 The Heavner approach abandons the traditional procedural characterization of limitations issues and instead subjects limitation conflicts
to the same choice-of-law analysis as other issues in the same case, and without any a priori
reliance on the lex fori. One difference between this approach and the Uniform Act is that,
whereas the Act requires application of the law of the same state to both the limitation issue
and the other issues in the case, the Heavner approach simply subjects these two categories of
issues to the same choice-of-law analysis. Depending on the specifics of a case, this analysis
may lead to the same or different laws for the two categories of issues.75
Courts in seven other states have followed similar approaches: Arkansas,76 California,77
Delaware,78 Indiana,79 Michigan,80 Rhode Island,81 and Wisconsin.82
74. 305 A.2d 412 (N.J.1973).

75. At the time it decided Heavner, the New Jersey Supreme Court followed interest analysis for tort conflicts. Thus, in Heavner, which presented a tort conflict, the court resolved the statutes of limitation conflict
through interest analysis. For more than three decades, the court applied interest analysis to statutes of limitation conflicts in tort cases, including products liability cases. See, e.g., Gantes v.Kason Corp., 679 A.2d 106
(N.J. 1996), discussed infra. However, in the 2008 case P.V.v.Camp Jaycee, 962 A.2d 453 (N.J. 2008), a tort
conflict that did not involve statutes of limitation, the New Jersey Supreme Court abandoned its reliance on
interest analysis and switched to the Restatement (Second). Based on this switch, New Jerseys intermediate
court concluded that the New Jersey Supreme Court would henceforth follow Section 142 of the Restatement
(Second) (discussed infra) for statutes of limitation conflicts in tort cases. See Pitcock v.Kasowitz, Benson,
Torres & Friedman, L.L.P., 46 A.3d 586 (N.J. Super. Ct. App. Div. 2012). However, a few weeks after Pitcock,
the New Jersey Supreme Court decided a statutes of limitations conflict in Cornett v.Johnson & Johnson, 48
A.3d 1041 (N.J. 2012), but the court did not use Section 142 of the Restatement (Second). Subsequent intermediate court cases continue to use a Heavner-type analysis without relying on the Restatement (Second).
See McHale v.Kelly, 527 Fed. Appx 149 (3d Cir. May 30, 2013)(decided under New Jersey conflicts law);
Singh v.Pilot Gas Station, 2014 WL 1577816 (N.J. App. Div. April 22, 2014), cert. denied 218 N.J. 530 (2014);
Irby v.Novartis Pharm. Corp., 2013 WL 2660947 (N.J. Super. Ct. App. Div. June 14,2013).
76. See Ganey v.Kawasaki Motors Corp., U.S.A., 234 S.W.3d 838 (Ark. 2006), rehg denied, (June 22,2006).
77. See, e.g., Bin-Jiang Tao v. Citibank, N.A., 445 Fed.Appx. 951 (9th Cir. 2011), cert. denied, ___U.S
___, 132 S.Ct. 1561 (2012); Ledesma v.Lack Steward Produce, Inc., 816 F.2d 482 (9th Cir. 1986); Nelson
v.Intl Paint Co., 716 F.2d 640 (9th Cir. 1983); Tomlin v.Boeing Co., 650 F.2d 1065 (9th Cir. 1981); Indus.
Indemnity Co. v.Chapman & Cutler, 22 F.3d 1346 (5th Cir. 1994)(decided under California conflicts law);
Greer v.Academy Equip. Rentals, 1994 WL 443421 (N.D. Cal. 1994); McCann v.Foster Wheeler LLC.,
225P.3d 516 (Cal. 2010); Ashland Chem. Co. v.Provence, 181 Cal. Rptr. 340, 341 (Cal Ct. App.1982).
78. See Clinton v.Enter. Rent-A-Car Co., 977 A.2d 892 (Del.2009).
79. See Nelson v. Sandoz Pharm. Corp., 288 F.3d 954 (7th Cir. 2002) (decided under Indiana conflicts
law; significant contacts approach).
80. See Professional Consultation Servs. Inc. v.Schaefer & Strohminger Inc., 412 Fed.Appx. 822 (6th Cir.
2011)(decided under Michigans conflicts law); Sutherland v.Kennington Truck Serv., Ltd., 562 N.W.2d
466 (Mich. 1997)(under the lex fori approach).
81. See Harodite Indus. Inc. v.Warren Elec. Corp., 24 A.3d 514 (R.I. 2011); Cribb v.Augustyn, 696 A.2d
285 (R.I. 1997)(eclectic approach).
82. See Wenke v.Gehl Co., 682 N.W.2d 405 (Wis. 2004); Malone v.Corrections Corp. of Am., 553 F.3d
540 (7th Cir.2009).
536
Gantes v. Kason Corp.83 is representative of cases decided under the Heavner approach.
Gantes was a wrongful-death action brought by the survivors of a Georgia domiciliary, who was
killed by a moving part of a machine while working in a chicken processing plant in Georgia.
ANew Jersey-based corporation had manufactured the machine 13years earlier in New Jersey.
The action was timely under New Jerseys two-year statute of limitation, but barred by Georgias
10-year statute of repose for products liability claims. Applying the Georgia statute, the district
court dismissed the action and the intermediate court affirmed. The Supreme Court of New
Jersey reversed after an excellent analysis of the interests of the two states.
After noting that Georgia had enacted its statute to protect manufacturers and eliminate stale claims, the court concluded that Georgia had no interest in applying it because
Georgia had no contacts with the defendant manufacturer, and its courts were not involved.
The victims Georgia domicile [did] not implicate the policies of its statute of repose,
which is intended only to unburden Georgia courts and to shield Georgia manufacturers.84
Indeed, the fact that the victim was domiciled in Georgia brought into play that states general policy of fair compensation for injured domiciliaries.85 Although Georgia had subordinated that policy in cases in which recovery was sought from a Georgia manufacturer,
Georgia had no reason to insist that its general policy be subordinated in a case in which
the recovery was sought from a foreign manufacturer. Consequently, the court concluded,
the non-application of Georgia law would not undermine Georgias interest in compensating its injured residents because that interest is not actually implicated or compromised by
allowing a products-liability action brought by Georgia residents to proceed against a non-
Georgia manufacturer.86
In contrast, New Jersey had a cognizable and substantial interest in deterrence that would
be furthered by the application of its statute of limitations.87 The court described the policies
embodied in that statute and its judicially engrafted discovery rule as permeated by flexible,
equitable considerations based on notions of fairness to the parties and the justice in allowing claims to be resolved on their merits.88 The court also noted that the goal of torts law in
general, and products liability law in particular, is to encourage reasonable conduct, and, conversely, to discourage conduct that creates an unreasonable risk of injury to others.89 Because
the machine that caused the fatal injury had been manufactured in, and placed intothe stream
of commerce from [New Jersey],90 New Jersey had a strong interest in encouraging the manufacture and distribution of safe products for the public and, conversely, in deterring the manufacture and distribution of unsafe products within the state.91 The court rejected the lower
83. 679 A.2d 106 (N.J.1996).

84. Id. at 11415.
85. Id. at115.
86. Id.
87. Id. at113.
88. Id. at110.
89. Gantes, 679 A.2d at111.
90. Id.
91. Id. at 11112.
537
courts conclusion that the possibility of unduly discouraging manufacturing in New Jersey
outweighed this interest in deterrence.92 The court also dismissed the forum-shopping argument because, as shown by the defendants contacts with the forum, the plaintiff did not engage
in forum shopping in this case.93
In Harodite Industries, Inc. v. Warren Electric Corp.,94 which was decided under Rhode
Islands better-law approach, the court applied the forums longer statute of limitation in favor
of a foreign plaintiff and against a forum defendant. The plaintiff was a Massachusetts company
who sued a Rhode Island company for damage to its factory caused by defective equipment
the defendant sold to the plaintiff. The action was untimely under Massachusettss statute of
limitation but was timely under Rhode Islands 10-year catchall statute. The lower court applied
the Rhode Island statute. The court reasoned, inter alia, that:(1)Massachusetts did not have a
strong governmental interest in precluding one of its citizens from redressing tortious conduct
that caused property damage within [Massachusetts] borders or in protecting Rhode Island
citizens from lawsuits, and (2)Rhode Island had a strong governmental interest in applying
its own statute of limitations to actions commenced in a Rhode Island forum when one of
the parties is domiciled in this state.95 The court also found that the Rhode Island statute was
the better law because it afford[ed] more protection for those who suffer property damage
resulting from defective products.96 The Rhode Island Supreme Court applauded this reasoning, saying that it had nothing to add, except to express particular agreement with the lower
courts analysis of the better law factor.97
In McCann v.Foster Wheeler LLC.,98 a case decided under Californias comparative impairment approach, the court refused to apply Californias statute of limitation, under which the
action would have been timely. Instead, the court applied Oklahomas statute of repose, which
barred the action of a California plaintiff against an out-of-state manufacturer. The plaintiff had
been exposed to asbestos in 1957, while installing a large boiler at an Oklahoma oil refinery.
The defendant, a NewYork company, had designed and manufactured the boiler in NewYork.
At the time of the exposure, the plaintiff was domiciled in Oklahoma, but in 1965 he left
92. See id. at112.

93. See id. at 113 ([T]his States interest against forum shopping will not be compromised by the application of New Jerseys statute of limitations in the circumstances of this litigation... . In this case, plaintiff does not seek to use New Jerseys court system to litigate a dispute that has only a slight link to New
Jersey and where the only plausible reason to select this State is because it is a hospitable forum. This
action is materially connected to New Jersey by the fact that the allegedly defective product was manufactured in and then shipped from this State by the defendant-manufacturer.). Justice Garibaldi filed a
strong dissent, charging that [t]he majoritys opinion subjects New Jersey businesses to an increased
risk of litigation that would be time-barred in the state where the injured person lives and where the
accident occurred, increases forum shopping and further taxes an already overburdened court system,
without offering any countervailing benefit to a New Jersey resident or business. Id. at 116 (Garibaldi,
J., dissenting).
94. 24 A.3d 514 (R.I.2011).
95. Id. at 52728 (quoting the lower court).
96. Id. at528.
97. Id. at 53435.
98. 225P.3d 516 (Cal.2010).
538
Oklahoma and, in 1975, settled in California. In 2005, he was diagnosed with mesothelioma,
which he claimed to have been caused by his 1957 exposure to asbestos.
The California court found that the fact that the defendant was not an Oklahoma company
did not mean that Oklahoma lacked an interest in applying its statute of repose. The court reasoned that a state that adopts a business-friendly rule has an interest:
(1) in applying the rule for the benefit of both domestic and non-domestic businesses
in order to attract[] out-of-state companies to do business within the state, both to
obtain tax and other revenue , and to advance the opportunity of state residents to
obtain employment;99and
(2) in being able to assure individuals and commercial entities operating within its territory that applicable limitations on liability set forth in the jurisdictions law will be
available to those individuals and businesses in the event they are faced with litigation
in the future.100
The court reasoned that, because the defendanthad
No way of knowing or controlling where a potential plaintiff may move in the future, subjecting such a defendant to a different rule of law based upon the law of a state to which a potential
plaintiff ultimately may move would significantly undermine Oklahomas interest in establishing a reliable rule of law governing a businesss potential liability for conduct undertaken in
Oklahoma.101
In contrast, the court concluded that the non-application of California law would effect a
far less significant impairment of Californias interest because:(1)the defendants allegedly
tortious conduct occurred in another state, (2) the plaintiff was in (and, indeed, a resident
of) Oklahoma at the time of his exposure to asbestos, and (3)the plaintiff should not expect
to subject defendant to a financial hazard that [Oklahoma] law had not created.102 The court
concludedthat:
When the law of [an]other state limits or denies liability for the conduct engaged in by the defendant in its territory, that states interest is predominant, and Californias legitimate interest in
providing a remedy for, or in facilitating recovery by, a current California resident properly must
be subordinated because of this states diminished authority over activity that occurs in another
state.103
99. Id. at530.

100. Id. at 534 (internal citations omitted).
101. Id. at 53435.
102. Id. at535.
103. Id. at536.
539
Regardless of whether one agrees or disagrees with the outcome,104 it is clear that the courts
analysis of the issue of the timeliness of the action does not at all differ from its analysis of any
substantive tort conflict in which one states law favored the plaintiff and the other states law
favored the defendant.
C. THE NEW REVISION OFTHE

RESTATEMENT (SECOND)
1.TheText
In 1988, the American Law Institute adopted a revised version of Section 142 of the Restatement
(Second), which provides as follows:
Whether a claim will be maintained against the defence of the statute of limitations is determined
under the principles stated in 6. In general, unless the exceptional circumstances of the case
make such a result unreasonable:
(1) The forum will apply its own statute of limitations barring the claim.
(2) The forum will apply its own statute of limitations permitting the claim unless:
(a) maintenance of the claim would serve no substantial interest of the forum; and
(b) the claim would be barred under the statute of limitations of a state having a more
significant relationship to the parties and the occurrence.105
Through its cross-reference to Section 6, the first sentence of Section 142 adopts an
approach similar to Heavnerit instructs the court to choose the law applicable to the limitations issue through the flexible principles of Section 6, and without any a priori preference for
either the lex fori or the lex causae.
However, in the interest of judicial economy, the remainder of Section 142 supplements
this approach with two presumptive rules favoring the lex fori. The rules distinguish between:
(a) cases in which the action is barred in the forum state, but not in the other involved
state or states (Pattern 1);and
(b) cases in which the action is not barred in the forum state but is barred in the other
involved state or states (Pattern2).
The burden for rebutting the lex fori presumption is intentionally heavier in Pattern 1 (the
result must be unreasonable) than in Pattern 2 (lack of substantial interest). Given the tendency of plaintiffs attorneys to forum shop, Pattern 2 cases are by far the most numerous.
104. For a critique of this case, see S. Symeonides, Choice of Law in the American Courts in 2010:Twenty-
Fourth Annual Survey, 59 Am. J.Comp. L. 303, 32530 (2011).
540
2.RepresentativeCases
Thus far, courts in seven states106 have adopted this section of the Restatement
(Second):Arizona,107 Florida,108 Idaho,109 Iowa,110 Massachusetts,111 Ohio,112 and West Virginia.113
The discussion below focuses on representative cases from these states. Because Pattern 2 cases
are the most numerous, as noted earlier, all of these cases fall within that pattern, in that in all
of them the action was timely under the statute of limitations of the forum state but not under
the corresponding statute of the other involved state. All cases involved tort actions arising
from events occurring in the non-forum state. In three cases, the defendant was a forum domiciliary and the plaintiff a domiciliary of another state, whereas in the fourth case the plaintiff
was a forum domiciliary and the defendant a domiciliary of another state.114
In DeLoach v.Alfred,115 an Arizona case, the tort (a traffic accident) occurred in Tennessee
and involved a California plaintiff, an Arizona defendant, and a Tennessee driver. While riding
in a car driven by the Arizona defendant, the plaintiff sustained injury in a collision with a car
106. In addition, some federal courts have applied this section in federal question cases. See, e.g., Huynh
v.Chase Manhattan Bank, 465 F.3d 992 (9th Cir. 2006); FDIC v.Nordbrock, 102 F.3d 335 (8th Cir.1996).
107. See In re Southwest Supermarkets, L.L.C., 315 B.R. 565 (Bankr. D.Ariz. 2004); DeLoach v.Alfred,
960P.2d 628 (Ariz. 1998).
108. See Celotex Corp. v.Meehan, 523 So. 2d 141 (Fla. 1988); Fulton Cty. Admr v.Sullivan, 753 So. 2d
549 (Fla.1999).
109. See Dillon v.Dillon, 886P.2d 777 (Idaho1994).
110. See Washburn v. Soper, 319 F.3d 338 (8th Cir. 2003), discussed infra 54142 (predicting that the
Iowa Supreme Court would adopt revised 142 of the Restatement (Second), given the latter courts consistent reliance on the Restatement in other conflicts); Great Rivers Coop. of Se. Iowa, Inc. v.Farmland
Indus., Inc., 934 F.Supp.302 (S.D. Iowa1996).
111. See New England Telephone & Telegraph Co. v. Gourdeau Constr. Co., Inc., 664, 647 N.E.2d 42
(Mass. 1995); Nierman v.Hyatt Corp., 808 N.E.2d 290 (Mass. 2004); Lynch v.Stop & Shop Supermarket
Co., LLC, 84 Mass. App. Ct. 1118 (Mass. App. Ct. Nov. 6, 2013); Andersen v. Lopez, 957 N.E.2d 726
(Mass. App. Ct. 2011); Gonzalez v.Johnson, 918 N.E.2d 481 (Mass. App. Ct. 2009); Shamrock Realty Co.,
Inc. v.OBrien, 890 N.E.2d 863 (Mass. App. Ct. 2008); Delfuoco v.K-Mart Corp., 817 N.E.2d 339 (Mass.
App. Ct. 2004); Mezinger v.Chrisos, 2004 WL 2550516 (Mass. Super. Ct. Oct. 13, 2004); Ristaino v.D.C.
Bates Equip. Co., 2004 WL 1171247 (Mass. Super. Ct. May 12,2004).
112. See Resner v.Owners Ins. Co., 2002 WL 236970 (Ohio Ct. App. Feb. 14, 2002); Matrix Acquisitions,
LLC v.Hooks, 2011 WL 2464183 (Ohio Ct. App. June 15,2011).
113. See McKinney v.Fairchild Intl, Inc., 487 S.E.2d 913 (1997).
114.In Jackson v. Chandler, 61 P.3d 17 (Ariz. 2003), an Arizona case, none of the parties were from
Arizona but the tort (a three-car collision) occurred in that state and involved California domiciliaries.
The action was timely under Arizonas two-year statute of limitations, but not under Californias one-year
statute. The court noted that, as the domicile of all parties, California had a more significant relationship
to them, but had a less significant relationship to the occurrence because the wrongful conduct, the accident, and the injury all occurred in Arizona. Id. at 19 (quoting Section 142(2)(b), emphasis added). The
court found that Arizonas interests in allowing the action were both substantial and significant. Id. at
21. The court reasoned that, because both the wrongful conduct and the resulting injury had occurred
in Arizona, Arizonas interests in regulating conduct within the state, deterring wrongful conduct in the
state, and providing a forum to adjudicate claims arising from such conduct [were] substantial interests that would be served by entertaining the claim.Id.
115. 960P.2d 628 (Ariz.1998).
541
driven by the Tennessee driver. The Tennessee driver was not subject to the courts jurisdiction
and, as explained below, this was a significant factor in the courts decision. The action was
barred by Tennessees one-year statute of limitation, but not by Arizonas two-year statute.116
The lower court applied the Tennessee statute, after finding Arizona to be uninterested and
Tennessee to have a more significant relationship because of the involvement of the Tennessee
driver. The Arizona Supreme Court reversed, holding that the Arizona statute applied. In particular, the court found that the lower court erred in giving insufficient weight to the presumptive lex fori rule of Section 142, and in concluding that Arizona was uninterested and
Tennessee had a more significant relationship.
The court found that, because the Tennessee driver was not involved in this litigation,
Tennessee had no interest in applying its statute of limitation, and that states relationship with the
case was not more significant than Arizonas. The court found that Arizonas longer statute of limitation reflected a deterrence policy of holding tortfeasors accountable and requiring [Arizona]
citizens to answer for the harm they cause, and that this policy extend[ed] to providing a forum
for redress against Arizona defendants for their negligent conduct outside the state.117 For these
reasons, the court concluded that Arizonas interest in the case was at least as substantial and as
significant as Tennessees.118 Consequently, neither one of the Restatements exceptions to the presumptive lex fori rule was applicable. The only remaining question was whether applying the lex
fori would be unreasonable under the circumstances. Comparing this case to Keeton,119 the court
concluded that the application of Arizonas statute of limitations was both reasonable and entirely
consistent with the choice-of-law factors enumerated in Restatement 6120 in that it protects the
justified expectations of the parties121 and promotes the basic policies underlying tort lawto
deter wrongful conduct and compensate victims for their loss.122
In Washburn v. Soper,123 an Iowa case, the defendant was an Iowa domiciliary and the
action was timely filed under Iowa law. However, the action was untimely under the law of
Illinois, where most of the underlying events occurred. Washburn was a legal malpractice claim
filed by an Illinois plaintiff against an Iowa attorney who had represented the plaintiff in previous litigation in Illinois. Employing subsection 2 of Section 142, the court dismissed the action
under the Illinois statute of limitation, finding that Illinois had a more significant relationship
and that Iowa had no substantial interest in applying its longer statute of limitations, which
would undermine its interest in protecting resident defendants.124 The court recognized that
116. The court did not mention Californias statute of limitation.

117. 960P.2d, at 63132.
118. Id. at632.
119. See supra 52526.
120. 960P.2d at633.
121. Id. (citing Restatement Second 6(2)(d) and referring to the Arizona defendants expectation of
being subject to legal action for their tortious conduct for two years under the Arizona statute.) See
also id. (The only objection to applying the Arizona statute of limitations is from the Arizona residents.
In our view, Arizona has a significant interest in applying the Arizona statute of limitations to claims
brought in Arizona against Arizona residents.).
122. Id.
123. 319 F.3d 338 (8th Cir. 2003), cert. denied, 540 U.S. 875, 124 S.Ct. 221 (2003).
124. Washburn, 319 F.3d at343.
542
Iowa ha[d]an interest in protecting those who retain Iowa attorneys from becoming the
victims of professional negligence and in affording parties a reasonable time to present their
claims [and] in maintaining the integrity of its bar.125 Even so, the court concluded, these
interests were not sufficiently substantial in circumstances such as this, where the plaintiffs
are Illinois residents, the defendant attorney is licenced in both Iowa and Illinois, the defendant attorney was retained to represent the plaintiffs in Illinois state court proceedings, and
these proceedings concerned Illinois residents, Illinois businesses, Illinois trust agreements,
and Illinois contracts.126
In Andersen v. Lopez,127 a Massachusetts case, the defendants were Massachusetts domiciliaries whereas the plaintiffs were Maine domiciliaries, whose motorcycle was damaged
by the defendants motorcycle during an excursion to New Brunswick, Canada. The action
would be untimely under New Brunswicks two-year statute of limitation, but was timely under
Massachusetts three-year statute. The Massachusetts court concluded that:(1)New Brunswick
did not have a more significant relationship than Massachusetts, (2)Massachusetts did have an
interest in applying its statute of limitation, and thus (3)it was not unreasonable to allow the
action to proceed.
With regard to point (1), the court noted that, although New Brunswick had an interest
in ensuring compliance within its borders of the standards of behavior its tort law embodies, New Brunswick had no discernible interest in setting the time by which two nonresidents must resolve their disputes in foreign courts, even when those disputes concern the
way the nonresidents interacted with each other while they were in New Brunswick.128 With
regard to point (2), the court reasoned that:(a)Massachusetts had an interest in applying its
statute because the defendants are Massachusetts residents, made the trip on a vehicle they
purchased in Massachusetts, and are insured by a Massachusetts insurer;129 (b)by enacting a
three-year statute of limitation, the Massachusetts legislature had determined that three years
is an appropriate balance between the length of time its citizens should remain accountable for
the consequences of their negligent conduct and the protection they need against protracted
exposure to liability;130 and (c) by choosing not to enact a borrowing statute, the legislature
indicated the interest Massachusetts has in allowing the three-year period to run its course.131
In Nierman v. Hyatt Corp.,132 another Massachusetts case, the plaintiff was a domiciliary
of the forum state and the defendant was a foreign corporation that owned the Texas hotel in
which the plaintiff was injured. The plaintiff s tort action was barred by Texass two-year statute
125. Id.
126. Id. In Weitz Company, LLC v.Travelers Casualty & Surety Co., 266 F.Supp.2d 984 (S.D. Iowa 2003),
the action was timely under the statute of limitations of the forum state of Iowa, but not under the statute of Connecticut, where most of the underlying events occurred. However, in contrast to Washburn in
which the defendant was a forum domiciliary, in Weitz it was the plaintiff who was a forum domiciliary.
This difference was a sufficient ground on which to distinguish Washburn and apply Iowas longer statute
permitting the action.
127. 957 N.E.2d 726 (Mass. App. Ct.2011).
128. Id. at729.
129. Id. at 72829.
130. Id. at729.
131. Id.
132. 808 N.E.2d 290 (Mass.2004).
543
of limitation, but not by Massachusetts three-year statute. The plaintiff conceded that Texas
had the most significant relationship with regard to other (i.e. conduct-regulating) aspects of
the case but argued that, in light of the plaintiff s domicile in Massachusetts, the latter state had
a substantial enough interest to maintain the action.
The Massachusetts court disagreed. Although it noted that Massachusetts had a general
interest in having its residents compensated for personal injuries suffered in another State,
the court concluded that Massachusettss interest in the timeliness of such an action [was not]
more compelling than that of Texas,133 and that Texas had the dominant interest in having its
own limitations statute enforced.134 The court drew support for its decision from a Restatement
comment providing that, when the plaintiff is domiciled in the forum state and the defendant
in the state that has the most significant relationship to the other aspects of the case (e.g., here
Texas), the forum should entertain the claim only in extreme and unusual circumstances.135
In this case, the defendant was not domiciled in Texas, but the defendant operate[d]a business
there and employ[ed] Texans,136 and thus came within the protective scope of Texass statute
of limitation.
Of the four cases discussedabove:
(1) Two cases (DeLoach and Andersen) applied the forums longer statute of limitations,
and, in both cases, this result favored a foreign plaintiff at the expense of a domestic
defendant.
(2) Two cases (Washburn and Nierman) did not apply the forums longer statute of limitations. This result favored a domestic defendant at the expense of a foreign plaintiff in
Washburn, and the foreign defendant at the expense of a domestic plaintiff in Nierman.
(3) Thus, only one of the four cases (Washburn) reached a result that favored a domestic
over a foreign litigant. The other three cases favored a foreign litigant over a domestic
litigant.
Nierman presented the direct or true conflict paradigm in that each states limitation law
favored its own domiciliary.137 The courts refusal to apply the forums longer statute for the
benefit of a forum plaintiff runs contrary to both modern and traditional decisional trends.
DeLoach, Washburn, and Andersen presented the inverse, or unprovided-for paradigm in
that each states limitations law favored the domiciliary of the other state.138 DeLoach is noteworthy, not only because it is a correct and intelligent application of Section 142, but also
because it provides a credible articulation of the forums interest in applying its longer statute of
limitation when the defendant is a forum domiciliary and the plaintiff is a foreign domiciliary.
In such cases, the fact that the action is timely under the forums statute negates any procedural
133. Id. at293.

134. Id. at 29394.
135. Restatement (Second) 142cmt.g.
136. Nierman, 808 N.E.2d at 293. The defendant was a Delaware corporation with its principal place of
business in Illinois, and both states statutes of limitation barred the action. The court reasoned that this
fact made this case sufficiently analogous to a case in which the defendant was domiciled inTexas.
137. See supra 20508.
138. Seeid.
544
interests (such as pruning stale claims from the docket) that some courts uncritically invoke in
limitation conflicts. After all, the fact that the forum has a longer limitation period means that
the claim is not considered stale enough. This means that the interests implicated in the cases
of this pattern are substantive rather that procedural, and that the strength of those interests
depends on the forums relationship with the case and the parties.
In cases such as DeLoach, Washburn, and Andersen, the fact that the plaintiff is not a forum
domiciliary may, under Professor Curries assumptions, suggest the lack of an affirmative interest in providing a forum, but it does not generate an interest in denying a forum that is otherwise available to forum domiciliaries. Thus, the plaintiff s foreignness should not be the
basis of the courts decision in cases of this pattern. Regarding the defendants, the fact that
the forums statute permitted the action means that the forum had subordinated the policy of
affording defendants with repose to the opposite policy of holding defendants accountable, as
the DeLoach court concluded. The remaining question is whether this policy is negated by the
plaintiff s foreignness (as some courts have held under the pretext of respecting another states
nonexistent interest), or whether that policy is unaffected by this factor, as the DeLoach court
held. Reasonable people may answer this question differently, as did the two courts in DeLoach
and Washburn. The fact that these two courts reached opposite conclusions is not unusual.
The positive aspect of both of these cases, as well as Andersen and Nierman, is that the courts
directly confronted the conflicting interests rather than seeking refuge in the artificial characterizations of the traditional method.
3. The Louisiana and Puerto Rico Codifications

The 1991 Louisiana conflicts codification follows an approach that is somewhere between the
Uniform Act and the Restatement (Second). Paraphrased, Article 3549 of the codification provides in pertinentpart:
(1) if the action is untimely under the law of the forum, the action is dismissed unless it
would be timely in the state whose law would govern the merits of the action and its
maintenance is warranted by compelling considerations of remedial justice;and
(2) if the action is timely under the law of the forum, the action shall be maintained unless
it would be untimely in the state whose law would govern the merits and its maintenance is not warranted by the policies of [the forum] state and its relationship to the
parties or the dispute nor by any compelling considerations of remedial justice.139
This approach suffers from the same flaw as the Uniform Act to the extent it is built around
two poles, the lex fori and the lex causae; that is, the law that governs the other issues in the
case, as opposed to the law that should govern the particular issue of limitation. In contrast, the
Puerto Rico Draft Code moves closer to the Restatement (Second) by replacing the lex causae
with the latter law. The Code provides that prescription, and other modes of barring actions by
139. La. Civ. Code Ann. Art. 3549(B) (2015). The article also provides that when the substantive law of
the forum governs the merits of an action, then the forums statute of limitation also applies, whether or
not it bars the action. For a discussion of the rationale of this article by its drafter, see S. Symeonides,
Louisiana Conflicts Law:Two Surprises, 54 La. L.Rev. 497, 53048 (1994).
545
the passage of time, is governed by the law of the state that, under the Codes general approach,
has the most significant connection with regard to this issue. Nevertheless:
(1) an action that is untimely under forum law may not be maintained if, in the circumstances, its maintenance would unreasonably burden the administration of justice or
would be manifestly unfair to the defendant;and
(2) an action that is timely under the law of the forum may be maintained (even though it
is untimely under the law applicable under the above general approach) if the maintenance of the action is justified by compelling considerations of remedial justice arising out of the relationship of the parties and the dispute to [the forum].140
Smith v.Odeco (UK), Inc.141 was one of the first cases decided under the Louisiana codification. Smith involved an action by a British domiciliary for injuries he suffered aboard a U.S.flag
vessel (drilling rig) owned by Odeco, while the vessel was engaged in drilling off the territorial
waters of Spain. The parties conceded and the court agreed that British law would be applicable
to the merits of this action, apparently because the plaintiff was domiciled and had been hired in
the United Kingdom, and had taken his work orders out of Odecos office in Scotland. The action
was filed in Louisiana after the accrual of Louisianas one-year prescriptive period, but before the
accrual of the British three-year limitation period. Thus, under Article 3549, the action should be
dismissed unless its maintenance is warranted by compelling considerations of remedial justice.
The court held that the unless clause applied, allowing the action to proceed, after finding that compelling considerations of remedial justice existed, which warranted maintenance
of the suit in Louisiana. In support of this finding, the court quoted an example from the
Reporters comments to Article 3549 explaining the application of this exception.142 The court
noted that the plaintiff was blameless, in that he had filed the appropriate action in Scotland
well within the British three-year limitation period. However, under Scottish law, the Scottish
courts did not have jurisdiction over any of the defendants because none of them was domiciled or had its management and control in the United Kingdom. Instead, all the defendants
had their corporate offices in Louisiana. The court concluded that Louisiana is the only forum
where a suit may be maintained against all the defendants and that [i]n the absence of an
alternative forum in which there is jurisdiction over all defendants, compelling considerations of remedial justice exist which warrant maintenance of this suit in Louisiana.143
McGee v.Arkel International, LLC144 involved the same pattern as Smith because the action
was time-barred by Louisianas one-year liberative prescription but would be timely under the
prescriptive period of the foreign country, in this case Iraq. McGee involved a wrongful death
140. Puerto Rico Draft PIL Code Art. 8 (emphasis added). For discussion of this Code by its drafter, see
S. Symeonides, Revising Puerto Ricos Conflicts Law:APreview, 28 Colum. J.Transnatl L. 413, 43347
(1990).
141. 615 So. 2d 407 (La. Ct. App.1993), writ denied, 618 So. 2d 412 (La.1993).
142. Reporters comment (f)to Article 3549, quoted in Smith, 615 So. 2d at 409. The example refers to
cases where through no fault of the plaintiff an alternative forum is not available as, for example, when
jurisdiction could not be obtained over the defendant in any state other than the forum.
143. Smith, 615 So. 2d at410.
144. 671 F.3d 539 (5th Cir. 2012)(decided under Louisiana conflictslaw).
546
action filed by the parents of a Texas National Guardsman, who died of electrocution at a U.S.
Army base in Iraq. The plaintiffs alleged that the electrocution was caused by the negligence of
the defendant, a civilian contractor from Louisiana. After determining, under another article of
the Louisiana codification, that Iraqi law would govern the merits of the action, the court discussed whether maintenance of this action in Louisiana was warranted by compelling considerations of remedial justice under Article 3549. Relying on the Reporters comments, the court
answered this question in the affirmative. The court based its answer on two factors. The first
was that the plaintiffs were not guilty of procrastination. They had no access to the information
implicating the civilian contractor in Iraq until the completion of a military investigation. The
second was that there was no alternative forum. The Iraqi courts were inaccessible, because, in
addition to security concerns, a U.S.military order exempted American contractors from the
jurisdiction of Iraqi courts. The court remanded the case to the trial court for proceedings on
the merits.145
In contrast, in Skyrme v.Diamond Offshore (U.S.A.) Inc.,146 an alternative forum was available in Brazil, which, [i]n fact, would be the most convenient forum since the cause of
action arose in Brazil, plaintiff reside[d] in Brazil, and the vast majority of the plaintiff s liability and quantum witnesses [were] located in Brazil.147 The plaintiff, a British citizen, was
employed in Brazil by a Brazilian subsidiary of defendant, a Texas corporation that had its
principal place of business in Louisiana. The plaintiff was fired, allegedly without cause, and
sued the defendant parent corporation in Louisiana seeking moral damages under Brazilian
law. His action was barred under Louisiana law, but would have been timely under Brazils
20-year prescriptive period. The court correctly assumed that Brazilian law would be applicable to the merits of the action, but held that the action was barred under Louisiana law. The
court properly distinguished Smith, supra, by noting that, unlike the Smith plaintiff, the Skyrme
plaintiff did not carry the burden of showing compelling considerations. In fact, the Skyrme
defendant demonstrated that there [were] no compelling considerations of remedial justice
present which would warrant the maintenance of this action.148
145. For the judgment on remand, see McGee v. Arkel Intern. LLC, 2012 WL 6049156 (E.D. La. Dec.
5,2012).
146. 1994 WL 320928 (E.D. La.1994).
147. Id.at*4.
148. Id. (emphasis added). The plaintiff had already obtained jurisdiction over the defendant in a
Brazilian labor court. Similarly, in Seagrave v. Delta Airlines, Inc., 848 F. Supp. 82 (E.D. La. 1994),
the court held that the plaintiff had failed to carry his burden of showing that compelling considerations of remedial justice warranted the maintenance of his action in Louisiana. The plaintiff, then a
Virginia domiciliary, was injured aboard a Delta airplane on a return flight to Virginia. Approximately
15months after the injury, he moved to Louisiana and shortly thereafter sued Delta in that state at a
time when his action would have been prescribed under Louisiana law but not under Virginia law. The
court correctly held that Virginia substantive law would govern the merits of the action, and (distinguishing Smith and relying on Skyrme) held that the action was barred under Louisiana law because
there were no compelling considerations of remedial justice to warrant maintaining the action in
Louisiana. In fact, the court found that it would have been costlier to try the suit in Louisiana than in
Virginia. The court thus ordered the case to be transferred to a federal court in Virginia, pursuant to
28 U.S.C. 1404(a).
547
I V. S U M M A RY O F S TAT E PR A CT I CES
Table 36, below, shows the approaches followed in the various states with regard to limitation conflicts.149 As the table indicates, the traditional approach continues to command a slight
majority. It is followed in the 28 jurisdictions listed in the first two columns. The first column
(Traditional I) lists the jurisdictions that follow the traditional approach in both limitation
conflicts and in either tort or contract conflicts. The second column (Traditional II) lists the
jurisdictions that follow the traditional approach only in limitation conflicts.
Table36. Approaches toLimitation Conflicts
Traditional I
Traditional II
Restatement 2nd
Heavner analysis
Uniform Act
Alabama
Georgia
Kansas
Maryland
NewMexico
No. Carolina
Oklahoma
So. Carolina
Tennessee
Virginia
Wyoming
Alaska
Connecticut
Dis. Columbia
Hawaii
Illinois
Kentucky
Maine
Mississippi
Missouri
Nevada
New Hampshire
NewYork
Pennsylvania
So.Dakota
Texas
Utah
Vermont
17
Arizona
Florida
Idaho
Iowa
Massachusetts
Ohio
West Virginia
Arkansas
California
Delaware
Indiana
Michigan
NewJersey
RhodeIsland
Wisconsin
Colorado
Minnesota
Montana
Nebraska
NorthDakota
Oregon
Washington
11
V. C H O I C E -O F -L AW CL A US ES
A N D S TAT U T E S OF L I M I TAT I ONS
As noted earlier, a choice-of-law clause does not include the chosen states procedural law.150 If
statutes of limitations are always procedural, then the same principle should hold true for these
statutes as well. The First Restatement characterized statutes of limitations as procedural, but it
did not recognize party autonomy,151 and thus it did not face the question of whether contracting parties may choose the statute of limitations of a state other than theforum.
149. The table does not list Louisiana, which follows a hybrid approach combining elements from the
Restatement (Second) and the Uniform Act. See supra 54446.
150. See supra 40005.
151. See supra 36465.
548
However, two subsequent developments have given birth to this question. The first development, described in Chapter 10, is the widespread recognition of party autonomy in all
U.S.states, including those that otherwise follow the First Restatement.152 The second development, described in this chapter, is the gradual softening, and in almost half of the states abandonment, of the a priori procedural characterization of statutes of limitations.
As noted in Chapter 10, the majority of cases involving this question have held that the
choice-of-law clause could not, or did not, include the chosen states statute of limitations.153
Recently, however, several cases decided in states that have abandoned the procedural characterization of statutes of limitations have taken the position that a choice-of-law clause may
include the chosen states statute of limitations, if the clause is explicit enough to that end.
Applying this test, in at least a dozen cases courts have held that the clause included the chosen
states statute of limitations.154
This development can be problematic. Whether one views statutes of limitations as procedural or substantive (as explained later, this should not be an either or question), one should
recognize that: (1) a clause choosing a shorter statute of limitations than that of the forum
state imposes a handicap on the creditor, and (2)a clause choosing a longer statute imposes a
handicap on the debtor, but also imposes a burden on the courts of the forum state by allowing litigation over claims that are too old under the forums standards. One could argue that
these problems are manageable because a court can always protect the creditor or the debtor,
respectvely, through the public policy limits of the state whose law would have been applicable
in the absence of a choice-of-law clause (i.e., the lex causae). However, on this particular issue,
the lex causae may well be the wrong law in all cases in which the lex causae is not also the lex
fori. Suppose for example that a contract that would otherwise be governed by the law of State
Acontains a choice-of-law clause choosing the substantive and limitations law of State B.If
both states have an exceedingly long statute of limitations allowing the action, but the action is
filed in State C whose statute of limitation would bar the action, should State C be compelled
to hear it? Respect for party autonomy, as well as the existing structure that assigns the role of
lex limitativa exclusively to the lex causae (State A), would mandate an affirmative answer, but
it is doubtful that many courts would agree to it in such a case, or that they should.
V I . S U P R E ME C O URT CA S ES
In Sun Oil Co. v.Wortman,155 the U.S. Supreme Court gave its imprimatur to the procedural
characterization of statutes of limitations. It held that, simply by being the forum, a state may,
without violating the Full Faith and Credit or Due Process clauses of the Constitution, apply its
own statute of limitations even when that state lacks the contacts and interests that, according
to the Courts interpretation of the same clauses, are necessary for applying the forums substantive law to the merits of the case.156
152. See supra 36566.
153. See 40005, supra.
154. See id.
155. 486 U.S. 717 (1988).
549
Writing for the Court, Justice Scalia looked at the historical record and found that the
society which adopted the Constitution did not regard statutes of limitations as substantive
but rather as procedural restrictions fashioned by each jurisdiction for its own courts.157
Seeing no basis for updat[ing] our notion of what is sufficiently substantive to require full
faith and credit, 158 Scalia held that the forum state did not violate the Full Faith and Credit
Clause when it applied its own statute of limitations,159 because [a]States interest in regulating the work load of its courts and determining whether a claim is too stale to be adjudicated
certainly suffices to give it legislative jurisdiction to control the remedies available in its courts
by imposing statutes of limitations.160
Indeed, if the forums statute barred the action, this would have been a perfectly plausible
conclusion. However, in Wortman the forums statute allowed the action, that is, it did not consider the claim to be too stale. Consequently, that statutes application would increase rather
than decrease the forum courts work load. Astate that adopts a longer limitation period subordinates its procedural interests in reducing the courts workload and protecting them from
stale claims to the substantive interest of protecting plaintiffs by giving them more time to sue.
Thus, the real question in these cases is whether, in the particular circumstances, the application of the forums longer statute of limitation imposes an unfair burden on the defendant,
which in turn depends on the defendants relation with the forum state. Justice Scalias answer
to this question was that the defendant could in no way have been unfairly surprised by the
application to it of a rule that is as old as the Republic.161
Whether or not one agrees with Wortmans reasoning, what is clear is that its holding simply means that the forum state may apply its statute of limitations, not that it must.162 Also,
Wortman does not affect the Courts previous holding in Guaranty Trust Co. v.York,163 which,
for Erie purposes, characterized statutes of limitations as substantive.
The latter point has implications for federal courts sitting in diversity, which apply federal procedural law but, under Erie, must apply state substantive law.164 Under Guaranty Trust,
the latter law includes statutes of limitation. In multistate cases, Klaxon requires the federal
court to select the applicable substantive law (including statutes of limitations) through the
forums choice-of-law rules. Wortman comes in at this juncture. By granting state courts a
constitutional license to freely apply their own statutes of limitation, Wortman also gives the
same license to the federal courts when acting as surrogates for state courts under Erie. As
Ferens v.John Deere Co.165 illustrates, Wortman can also become an effective hunting license for
forum-shopping plaintiffs.
157. Wortman, 486 U.S.at725.
158. Id. at728.
159. Id. at729.
160. Id. at730.
161. Id.
162. See id. at 729 ([W]e do not hold that Kansas must apply its statute of limitations , but only that
it may.).
163. 326 U.S. 99 (1945). In fact, Justice Scalia expressly rejected the defendants plea to adopt Guaranty
Trusts substantive characterization.
165. 494 U.S. 516 (1990).
550
Albert Ferens, a domiciliary of Pennsylvania, was injured in that state by a John Deere combine harvester purchased in that state. Three years later, he and his wife filed a products liability
action against the John Deere Company in federal district court in Mississippi, which at that
time had a six-year statute of limitation. The defendants only connection to Mississippi was the
appointment of a local resident agent for service of process as a condition for doing business
in that state. Invoking 28 U.S.C. Section 1404(a),166 the plaintiff sought and obtained an order
transferring the case to a federal district court in Pennsylvania, which had a two-year statute of
limitation. Deciding before Wortman, the transferee court refused to apply Mississippis limitation period and held that the action was barred under Pennsylvanias two-year statute of limitations. The Third Circuit Court of Appeals affirmed, finding that Mississippis contacts with
the parties and the occurrence [were] plainly so insignificant that the application of its law
would be arbitrary, fundamentally unfair, and therefore unconstitutional.167
In the meantime, the Supreme Court decided Wortman and, two weeks later, vacated the
Third Circuit judgment and remanded the case for further consideration in light of Wortman.
On remand, the Third Circuit had to confront the question of whether the case fell within the
scope of the Supreme Courts previous decision in Van Dusen v. Barrack.168 Van Dusen had
held that, in a transfer initiated by the defendant under 28 U.S.C. Section 1404(a), the transferee court must apply the same law that would have been applied by the transferor court.169
The Third Circuit held that Van Dusen was inapplicable to this case because the transfer was
initiated by the plaintiff. Applying Pennsylvania conflicts law, the court held that the action was
barred under Pennsylvanias statute of limitation.170
The Supreme Court reversed, in a five-to-four decision authored by Justice Kennedy. The
Court held that Van Dusen did apply to transfers initiated by plaintiffs, and thus the transferee
court should have applied [t]he Mississippi statute of limitations, which everyone agrees would
[under Klaxon and Wortman] have applied if the Ferenses had not moved for a transfer.171
Justice Kennedy acknowledged that the holding may seem too generous because it allows
the Ferenses to have both their choice of law and their choice of forum, or even to reward the
Ferenses for conduct that seems manipulative.172 Nevertheless, he explained, the holding was
doing no more than recognize a forum shopping choice that already exists.173 It allows the
plaintiffs to exercis[e] the opportunities [of transfer] that they already have.174 He pointed out
that the decision to transfer the case under Section 1404(a) rests with the court rather than
166. 28 U.S.C 1404(a) (2015) provides that for the convenience of parties and witnesses, in the interest
of justice, a case may be transferred from one federal district to another district where the action might
have been brought.
167. Ferens v.Deere & Co., 819 F.2d 423, 427 (3d Cir.1987).
168. 376 U.S. 612 (1964).
169. See id. at 639.
170. Ferens v.Deere & Co., 862 F.2d 31 (3d Cir.1988).
171. Ferens v.John Deere Co., 494 U.S. 516, 526 (1990) (emphasis added).
172. Id. at531.
174. Id.
551
with the moving party, and that this provision also exists for the benefit of witnesses and the
interest of justice.175
Justice Scalia, who authored the majority opinion in Wortman, filed a strong dissent in
Ferens, criticizing the majority for enabling the plaintiff to have his cake and eat it tooto
litigate in the more convenient forum that he desires, but with the law of the distant forum
that he desires,176 and for allowing the significant federal judicial policy expressed in Erie and
Klaxon [to be] reduced to a laughingstock.177
Justice Scalia astutely described the exploitation of the system by enterprising plaintiffs.
However, the blame for the systems deficiencies does not lie in the Courts decision in Ferens.
The blame and remedy should be sought elsewhere, and most notably in:(1)the current rules
of jurisdiction, (2) Wortman, and (3) perhaps, in that not-so-sacred cow, Klaxon. Surely, the
Ferens scenario would not have occurred if the current rules of jurisdiction did not allow a
state with so minimal and artificial contacts as Mississippis in Ferens to assert jurisdiction over
the defendant. Second, even with Klaxon and Van Dusen intact, the Ferens scenario would have
ended up differently had Wortman not issued such an unrestricted license to any forum to apply
its longer limitation period even in the absence of significant contacts with the case. Finally,
had it not been for Klaxon, the federal district court in Mississippi would not be as inexorably
bound to follow the Mississippi Supreme Courts persistent refusal to apply Mississippis borrowing statute to cases that seem so clearly to fall within its scope,178 nor would that court be
such an attractive place for forum shoppers.
V I I . I T I S N O T A N EI T HER , OR
In his concurring opinion in Wortman, Justice Brennan said that [s]tatutes of limitation
defy characterization as either purely procedural or purely substantive.179 Indeed, it is simplistic to think of statutes of limitation as being always procedural (as did the traditional common-
law approach), or always substantive (as does the traditional civil-law approach). A rule of
limitation may, and usually does, serve both substantive and procedural objectives and policies.
For instance, a rule that subjects medical malpractice claims to a short limitation period
serves substantive objectives by shielding doctors and their insurers from prolonged exposure to liability, but also serves procedural objectives by reducing the number of malpractice
actions, and thus helps to conserve judicial resources. Similarly, a rule that prohibits anticipatory waivers of the statute of limitation promotes substantive aims by protecting debtors
from the coercive power of creditors. At the same time, by preventing the lengthening of the
175. Id. at 529. Justice Kennedy noted that, although the application of the transferor law would deprive
the defendant of the advantage of forcing the Ferenses to litigate in Mississippi or not at all, such a
deprivation was but a slight loss because the plaintiff always can sue in the favorable state court, or sue
in diversity and not seek transfer. Id. at525.
176. Id. at 537 (Scalia, J., dissenting).
177. John Deere Co., 494 U.S.at536.
178. See supra 527.
179. Wortman, 486 U.S.at 736 (1988) (Brennan, J., concurring).
552
limitation period beyond the time the lex fori considers appropriate, this rule serves procedural
policies by protecting the courts from the burdens and dangers of adjudicating old claims.
In contrast, a rule that prohibits the parties to certain insurance contracts from shortening
a statutory limitation period subordinates the procedural policy of encouraging the early filing
of actions to the preferred substantive policy of protecting insureds from the superior bargaining power of insurers. In Brennanswords,
The statute of limitations a State enacts represents a balance between, on the one hand, its substantive interest in vindicating claims and, on the other hand, a combination of its procedural
interest in freeing its courts from adjudicating stale claims and its substantive interest in giving
individuals repose from ancient breaches of law. . . . One cannot neatly categorize this complicated temporal balance as either procedural or substantive.180
Thus, from the choice-of-law perspective, the automatic application of the lex fori to all
multistate cases (the traditional common law approach) is as arbitrary as the automatic application of the lex causae (the traditional civil law approach). By exaggerating the procedural
function of limitations and ignoring their substantive function, the first approach encourages
forum shopping while ignoring the legitimate interests of other states that may be more intimately related to the parties and their dispute. By overemphasizing the substantive function of
limitations, the second approach deprives the forum qua forum of the ability to promote its
own procedural interests.
For these reasons, it is not surprising that, despite their original differences, both approaches
have gradually come to recognize the need for concessions in favor of the other, and have abandoned their exclusive adherence to a single law. The need for exceptions is perhaps the most
important lesson from this experience. In a sense, it is less important which of the two laws
(i.e., lex fori or lex causae) is eventually adopted as the basic rule, as long as it is subjected to
appropriate exceptions. The difficult question is therefore not whether exceptions should exist,
but which exceptions should be carved out of the basicrule.
Although reasonable people might disagree on where exactly to draw the lines of compromise, this experience can at least help identify some of the forces generally at work in limitation
conflicts. Without a claim to completeness, these forces may be placed in four categories:
(1) the procedural and substantive policies embodied in the particular limitation rule of
the lexfori;
(2) the substantive policies embodied in the limitation rule of the lex causae;
(3) the multistate policy of discouraging forum shopping;and
(4) the federally sanctioned policy of providing a forum for causes of action arising under
the laws of sister-states.
Obviously, these forces do not appear with the same intensity in all limitation conflicts, and
usually they point in opposite directions. However, they do exist, they cannot be ignored, and
they are not susceptible to simplistic recipes.
180. Id.
fourteen
Status and Domestic

Relations
In strict legal theory, the concept of status includes numerous issues such as nationality or
citizenship, marriage, legitimacy, filiation, parental authority, custody, support, the capacity to
enter into contracts (or other juridical acts), and the capacity to be the subject of rights and
duties (referred to in civil law systems as personality). In the United States, matters of citizenship are governed by federal law, while the two types of capacity are merged together and
are relegated to the law that governs the contract, juridical act, or relationship in question. For
example, under the traditional conflicts approach, the capacity of a person to be an heir or
to make a testament were governed by the same law that governed the succession, while the
capacity to enter into a contract was governed by the lex loci contractus. Modern approaches
allow for a separate treatment of each of these issues insofar as these approaches permit an
issue-by-issue analysis. This chapter focuses primarily on marriage, including its incidents and
dissolution, and secondarily on some issues pertaining to children.1
I I . M A R R I A GE
A. INTRODUCTION:DIVERGENCE AND CONVERGENCE
Marriage and domestic relations, in general, are subjects that fall within the lawmaking competence of the states, as opposed to the federal government. With few exceptions, federal statutes
routinely refer to state law for the definition of terms such as marriage, spouse, child,
or other domestic relations terms. One of those exceptions was the Defense of Marriage Act
(DOMA), which Congress enacted in 1996; it defined marriage for federal law purposes as
meaning only a legal union between one man and one woman as husband and wife.2 This
1. Basic bibliography on these issues includes: Hay, Borchers & Symeonides, Conflict of Laws 61458,
618789; Felix & Whitten, American Conflicts 539-608; Weintraub, Commentary 33393.
2. 1 U.S.C.A. 7 (1996).
553
554
provision remained in effect until 2013, when the Supreme Court declared it unconstitutional
in United States v.Windsor.3
Throughout the history of American law, the marriage laws of the various states have gone
through cycles of divergence and convergence. For example, until the 1960s, states diverged
with regard to interracial marriages, which many states allowed but some states prohibited.
That divergence ended in 1967, when the Supreme Court declared those prohibitions unconstitutional in Loving v.Virginia.4 Before the end of the twentieth century, the issue of same-sex
unions began to divide the states once again. That divergence ended in 2015 with the Supreme
Courts decision in Obergefell v.Hodges,5 which held that states could no longer deny license or
recognition to same-sex marriages.
Although in both of the above cases, the convergence on the part of some states was involuntary, in other cases, it was voluntary. For example, in the second half of the twentieth century,
we witnessed the gradual disappearance of virtually all differences between states with regard
to the formal requirements of marriage and most differences with regard to impediments to
marriage. Regardless of the reasons, however, the convergence of substantive laws eliminates
conflicts between them. It is no surprise, therefore, that the number of conflicts cases in the
law of marriage ebbs and flows over time, or further, that this number is much lower than, for
example in Europe, where national laws continue to differ in significantways.
B.VALIDITY
The traditional choice-of-law rule for determining the validity of marriage was to apply the
lex loci celebrationis, that is, the law of the state where the marriage took place. This rule was
subject to public policy exceptions in favor of either the lex fori or the law of either partys premarital domicile.6 Polygamous marriages and certain incestuous or interracial marriages were
mentioned as examples falling within the public policy exception.7
The Restatement (Second) has softened the rule, in both language and substance. Section
283 provides:
(1) The validity of a marriage will be determined by the local law of the state which, with
respect to the particular issue, has the most significant relationship to the spouses and
the marriage under the principles statedin6.
(2) Amarriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the
marriage at the time of the marriage.8
3. ___U.S. ___, 133 S.Ct. 2675 (2013), discussed infra 56061.

4. 388 U.S. 1 (1967).
5. ___ U.S. ___, 135 S.Ct. 2584 (2015).
6. See Restatement (First) 121122, 132,134.
7. See id.134.
Status and Domestic Relations
555
It is not a coincidence that, departing from the drafters usual wishy-washy practice, Subsection
(2)is phrased as a categorical black-letter rule, displaced only by a contrary and strong public
policy of only one statethe state that had the most significant relationship at the time of the
marriage and not later.9 Numerous cases have upheld foreign marriages under these circumstances, including common-law marriages,10 customary non-formal marriages,11 marriages by
proxy,12 and other marriages13 considered invalid under the internal law of the forumstate.
Moreover, as the accompanying comments to the Restatement make clear, a marriage that
is invalid under the law of the state of contracting will not necessarily be treated as invalid
elsewhere. Rather, the marriage will be upheld if it would be valid under the law of some other
state having a substantial [i.e., not necessarily the most significant] relation to the parties and
the marriage.14 Many cases, including cases that do not follow the Restatement (Second), have
reached this result in these situations.15
9. Without expressly excluding other possibilities, the Restatements examples suggest that a state where
at least one of the spouses was domiciled at the time of the marriage and where both made their home
immediately thereafter qualifies as the state of the most significant relationship. Id. cmt.j.
10. Although the majority of states no longer allow common-law marriages in their own territory, they
recognize such marriages contracted in states that allow them. For recent cases to this effect, see Norman
v.Ault, 695 S.E.2d 633 (Ga. 2010); Barron v.Suissa, 906 N.Y.S.2d 50 (N.Y. App. Div. 2010); In re Succession of
Hendrix, 990 So. 2d 742 (La. Ct. App.2008), rehg denied, (Sept. 22, 2008); Fritsche v.Vermilion Parish Hosp.
Serv. Dist. #2, 893 So. 2d 935 (La. Ct. App.2005), writ denied, 899 So. 2d 574 (La. 2005), and writ denied, 899
So. 2d 576 (La. 2005); In re Catapano, 794 N.Y.S.2d 401 (N.Y. App. Div. 2005); Xiong v.Xiong, 648 N.W.2d
900 (Wis. Ct. App.2002). For cases based on the same premise but finding no common-law marriage under
the facts of the case, see In re Landolfi, 724 N.Y.S.2d 470 (N.Y. App. Div. 2001); Smith v. Anderson, 821
So. 2d 323 (Fla. Dist. Ct. App.2002); Police & Firemens Disability & Pension Fund v.Redding, 2002 WL
1767362 (Ohio Ct. App. Aug. 1, 2002); In re Estate of Gernold, 800 N.Y.S.2d 329 (2005); For cases finding
that a foreign de facto marriage was not the equivalent of a common-law marriage, see In re Estate of Duval,
777 N.W.2d 380 (S.D. 2010), rehg denied (Feb. 19, 2010)(Mexican concubinage); Dion v.Rieser, 285P.3d
678 (N.M. Ct. App.2012), cert. denied (N.M. June 14, 2012)(Australian de facto marriage).
11. See, e.g., In re Marriage of Akon, 248 P.3d 94 (Wash. Ct. App. 2011) (Sudanese cultural marriage
blessed by the village Sultan); Kaur v. Bharmota, 914 N.E.2d 1087 (Ohio Ct. App. 2009), appeal not
allowed, 915 N.E.2d 1254 (Ohio 2009)(traditional Sikh marriage); Verma v.Verma, 903 N.E.2d 343 (Ohio
Ct. App.2008) (traditional Hindu marriage); R.M.v.Dr.R., 855 N.Y.S.2d 865 (N.Y. Sup. Ct. 2008)and
R.M.v.Dr.R., 859 N.Y.S.2d 906 (N.Y. Sup. Ct. 2008)(traditional Hindu marriage).
12. See Tshiani v.Tshiani, 56 A.3d 311 (Md. App.2012) (marriage by proxy in the Democratic Republic
of Congo); Bangaly v. Baggiani, 20 N.E.3d 42 (Ill. App. Ct. 2014), appeal denied, 31 N.E.3d 767 (Ill.
2015)(marriage by proxy in Mali). Marriages by proxy are recognized in California, Colorado, Montana,
and Texas, as well as by Section 206(b) of the Uniform Marriage and Divorce Act, which is in force in
Arizona, Georgia, Minnesota, and Washington. See Acts:Marriage and Divorce Act, Model, Uniform Law
Commission, available at http://uniformlaws.org/Act.aspx?title=Marriage and Divorce Act, Model (last
visited on Nov. 19,2015).
13. See, e.g., Ghassemi v.Ghassemi, 998 So. 2d 731 (La. Ct. App.2008), writ denied, 998 So. 2d 104 (La.
2009), appeal after remand, 103 So. 3d 401 (La. Ct. App.2012), rehg denied (Aug. 10, 2012), writ denied,
102 So. 3d 38 (La. 2012)(Iranian marriage between first cousins).
14. Restatement (Second) 283, cmt. i (emphasis added).
15. See, e.g., Xiong v.Xiong, 648 N.W.2d 900 (Wis. Ct. App.2002) (upholding a Laotian marriage that
was formally invalid under Laotian law, partly because the parties lived for three years as husband and
wife in Pennsylvania, which recognizes common-law marriages, before living for 15years in Wisconsin,
which does not recognize such marriages); Donlann v.Maggurn, 55P.3d 74 (Ariz. Ct. App.2002), rev.
denied, (Feb. 11, 2003)(holding that a Mexican marriage that was formally invalid under Mexican law
556
Thus, if read literally, the Restatement (Second) adopts an alternative-reference type rule
of validationa marriage is valid if it would be valid under the lawof:
(a) Astate that had the most significant relationship, either at the time of marriage or at a
latertime;
(b) Astate having a substantial relation to the parties and the marriage;or
(c) The state of contracting.
The only exception resulting in invalidity operates when the marriage is valid only in the
state of contracting and its validation elsewhere would violate a strong public policy of the
state that had the most significant relationship at the time of the marriage. Obviously, this
public policy must be constitutionally permissible. For example, after Obergefell, a state may
not have a public policy against same-sex marriages and thus may not invoke such a policy as
the reason for denying recognition to an out-of-state same-sex marriage.
The Restatements clear preference for validation reflects the old policy of favor matrimonii, which, at the time of the Restatements drafting, was entrenched in the domestic law of all
states. At the multistate level, this policy is reinforced by the desideratum of avoiding limping marriages. This policy favored upholding the validity of marriages whenever reasonably
possible, precisely because the consequences of invalidity were too grave, especially on the
statuses of children and good-faith spouses.16 This policy remains important, even after the
Supreme Court declared unconstitutional state laws discriminating against illegitimate children or same-sex spouses. As the Court stated in Obergefell, [b]eing married in one State but
having that valid marriage denied in another is one of the most perplexing and distressing
complication[s] in the law of domestic relations, which causes instability and uncertainty.17
C.INCIDENTS
Marriage vests the parties with the status of spouse with all the attendant legal consequences
on name, the right lawfully to cohabit, the right to claim support or inheritance, or to sue for
the wrongful death or injury of the other spouse. The status of marriage also produces similar
but valid under Arizona law was valid because, as the parties pre-and post-marriage domicile, Arizona
had the most significant relationship); Hudson Trail Outfitters v. District of Columbia Dept. of Empt
Sers., 801 A.2d 987 (D.C. 2002)(similar scenario involving a Nicaraguan marriage, but holding the marriage invalid; thus wife did not lose her eligibility for workers compensation benefits from the death of
her previous husband); In re Farraj, 886 N.Y.S.2d 67 (2009) (upholding a New Jersey marriage of two
NewYorkers who did not obtain a New Jersey marriage license as required by the law of New Jersey but
not NewYork); Rivera v.Rivera, 243P.3d 1148 (N.M. Ct. App.2010), cert. denied, 243P.3d 1146 (N.M.
2010); McPeek v.McCardle, 888 N.E.2d 171 (Ind. 2008)(upholding an Ohio marriage of Indiana domiciliaries who had an Indiana marriage license but not an Ohio license as required by Ohio law). But see
Ponorovskaya v.Stecklow, 987 N.Y.S.2d 543 (N.Y. Sup. Ct.2014).
16. See Restatement (Second) 283, cmt. h (stating that there is a strong inclination to uphold a marriage because of the hardship that might otherwise be visited upon the parties and their children, and
that differences among the marriage laws of various states usually involve only minor matters of debatable policy rather than fundamentals; id. cmt. i (Upholding the validity of a marriage is a basic
policy in all states.).
17. Obergefell, 135 S.Ct. at 2607 (quoting Williams v.North Carolina, 317 U.S. 287, 299 (1942)).
557
effects or incidents on children born of the marriage, such as legitimacy, filiation, and presumed paternity, and their rights to receive support and inheritance, or to sue for a parents
wrongful death. In the majority of cases, the dispute concerns one of these incidents, rather
than the validity of the marriage for all purposes. The validity of the marriage is simply a preliminary or incidental question, whose answer mayor may notdetermine the answer to
the principal question of whether the claimed incident exists.
Although some courts tend to assume that the two questions are inexorably interconnected
in that an invalid marriage produces zero incidents, and a valid marriage produces all incidents, in reality things are more complex, both in domestic and conflicts law. For example,
the domestic law of most states provides that a party who in good faith contracts a marriage,
while being reasonably unaware of an existing impediment, is entitled to certain marital benefits (such as marital property), even though the marriage itself is invalid. Hence, even under
domestic law, an invalid marriage may nevertheless produce certain incidents. Stated another
way, a marriage may be invalid for some purposes and valid for others.
The same distinction between marriage and its incidents exists in multistate cases. The
Restatement (Second) makes this distinction clear by both requiring an issue-by-issue analysis
in Section 283, and devoting a separate section to the incidents of marriage. Section 284 provides that a state usually gives the same incidents to a foreign marriage which is valid under
the principles stated in Section 283, that it gives to a marriage contracted within its territory.18
This statement seems redundant or innocuous because, even if the marriage would be
invalid had it been contracted in the forum state, a marriage that is valid under the [conflicts]
principles stated in 283 is treated as a valid marriage in the forum state. However, the use of
the word usually implies that the forum may choose to deny some incidents to such a marriage. Moreover, the accompanying comments suggest that the forum state may accord certain
incidents to a foreign marriage even if the marriage would be invalid under both its domestic and its conflicts law.19 For example, in a state that has a strong policy against polygamy,
a foreign polygamous marriage will not be treated as valid under the conflicts principles of
Section 283 because of the forums contrary policy. Nevertheless, the forum may choose to,
for example, accord the children of the marriage the status of legitimacy, or allow them to sue
for the husbands wrongful death.20 Likewise, nothing prevents the forum state from according
some incidents, while denying others, such as the right of the husband to cohabit with all of
his wives. The decision of whether to accord such incidents (or which ones to accord), depends
on the strength of the forums public policy with regard to the particular incident, the nature
and context of the particular issue, and, of course, the equities of each case.21

19. See id. 284, cmts. bc. The Restatement also provides that, in certain cases, a state may give certain
incidents to a foreign marriage that is invalid under foreign law. See id. cmt.d.
20. See id. cmt. c.See, e.g., In re Dalip Singh Birs Estate, 188P.2d 499 (Cal. Ct. App.1948).
21. See, e.g., De George v. Am. Airlines, Inc., 338 F. Appx 15 (2d Cir. 2009), cert. denied, 558 U.S. 1137
(2010) (holding that a woman who was married to an alien man for green card purposesi.e., in order
to enable the man to obtain legal residence in the United Stateswas eligible to recover wrongful death
benefits arising from the mans death, although U.S.immigration law considers green card marriages void).
Cf. Hudson Trail Outfitters v.D.C. Dept. of Empt Servs., 801 A.2d 987 (D.C. 2002)(holding that a Catholic
marriage performed in Nicaragua, but which the priest forgot to register in the civil registry as required by
Nicaraguan law, was invalid and thus the wife did not lose her eligibility for workers compensation benefits
558
The phenomenon of recognizing marriages for certain purposes but not for others is not
new, but it acquired new relevance with the advent of same-sex marriages. The next section
discusses these marriages in some detail, but one case, Christiansen v.Christiansen,22 deserves
mention here. In Christiansen, the Wyoming Supreme Court held that same-sex spouses married in Canada could obtain a divorce in Wyoming, even though at that time Wyoming law did
not allow same-sex marriages and did not recognize, for other purposes, same-sex marriages
entered into in another state. The court reasoned as follows:
[R]ecognizing a valid foreign same-sex marriage for the limited purpose of entertaining a divorce
proceeding does not lessen the law or policy in Wyoming against allowing the creation of same-sex
marriages. Adivorce proceeding does not involve recognition of a marriage as an ongoing relationship. Indeed, accepting that a valid marriage exists plays no role except as a condition precedent
to granting a divorce. After the condition precedent is met, the laws regarding divorce apply. Laws
regarding marriage play no role. [The two partners] are not seeking to live in Wyoming as a
married couple. They are not seeking to enforce any right incident to the status of being married. In
fact, it is quite the opposite. They are seeking to dissolve a legal relationship entered into under the
laws of Canada. Respecting the law of Canada for the limited purpose of accepting the existence
of a condition precedent to granting a divorce, is not tantamount to state recognition of an ongoing
same-sex marriage. Thus, the policy of this state against the creation of same-sex marriages is not
violated.23
I I I . S A ME -S E X MA R R I A GES
A.INTRODUCTION
From 1993 to 2003, the supreme courts of Hawaii, Alaska, Vermont, and Massachusetts held that
state laws confining the right of marriage to parties of the opposite sex were unconstitutional
under their respective state constitutions.24 Subsequent constitutional amendments overturned
the rulings in Hawaii and Alaska. In the third state, Vermont, the ruling led to the enactment
from the death of her previous husband); Police & Firemens Disability & Pension Fund v.Redding, 2002
WL 1767362 (Ohio Ct. App. Aug. 1, 2002), appeal not allowed, 780 N.E.2d 287 (Ohio 2002)(holding that an
Ohio policemans widow who moved to Wyoming where she cohabited for 30years with a Wyoming man
with whom she had three children was entitled to continue receiving pension benefits from her previous
husband because Wyoming did not recognize common-law marriages, although Ohio recognized them);
Davis v.State, 892 N.E.2d 156 (Ind. Ct. App.2008) (holding that a Kentucky marriage between an Indiana
man and a 17-year-old Indiana woman was invalid, and thus the woman did not qualify as a spouse under an
Indiana statute exempting a spouse from the crime of harboring the other spouse who committed a murder).
22. 253P.3d 153 (Wyo.2011).
23. Id. at 15657.
24. See Baehr v. Miike, 852 P.2d 44 (Haw. 1993); Brause v. Bureau of Vital Statistics, 1998 WL 88743
(Alaska Feb. 27, 1998); Baker v.State, 744 A.2d 864 (Vt. 1999); Goodridge etal. v.Dept. of Public Health,
798 N.E.2d 941 (Mass. 2003). The recent conflicts literature on same-sex marriages and related issues is
extensive and diverse. It includes the following symposia: Symposium, Defense of Marriage Act: Law,
Policy, and the Future of Marriage, 81 Fordham L. Rev. 537 (2012); Symposium, Interjurisdictional
Recognition of Civil Unions, Domestic Partnerships, and Benefits, 3 Ave Maria L. Rev. 393 (2005);
559
in 1999 of the first civil union law in the United States.25 In the fourth state, Massachusetts,
the effort to overturn the courts ruling was unsuccessful, and as a result, Massachusetts became
the first state to allow marriages between persons of the same sex in2004.
During the same period, more than 40 states enacted constitutional amendments or statutes (known as mini-DOMAs), which restricted the right of marriage to persons of the opposite sex and expressly or impliedly prohibited recognition of same-sex marriages, and in some
cases civil unions, formed in another state or country.
B. THE DEFENSE OFMARRIAGE ACT

(DOMA) AND ITSDEMISE
In 1996, bowing to self-generated political pressure, Congress enacted the Defense of Marriage
Act (DOMA).26 DOMA consisted of two parts. One part (hereafter called the vertical DOMA)
providedthat:
In determining the meaning of any Act of Congress, . . . the word marriage means only a legal
union between one man and one woman as husband and wife, and the word spouse refers only
to a person of the opposite sex who is a husband or a wife.27
The second part (hereafter called horizontal DOMA) provided:

No State . . . shall be required to give effect to any public act, record, or judicial proceeding of any
other State . . . respecting a relationship between persons of the same-sex that is treated as a marriage under the laws of such other State . . . or a right or claim arising from such relationship.28
1.VerticalDOMA
The vertical part of DOMA meant that a party to a valid same-sex marriage or civil union
could not be treated as a spouse under federal law.29 For example, a party to a Massachusetts
Symposium, On the Implications of Lawrence and Goodridge for the Recognition of Same-Sex Marriages
and the Validity of DOMA, 38 Creighton L.Rev. 233 (2005); Symposium, Current Debates in the Conflict
of Laws, 153 U. Pa. L.Rev. 1815 (2005).
25. See 15 V.S.A. 1201 et seq. (1999). Acivil union is a formalized legal relationship between two persons of the same sex, which confers upon them the same rights and duties as a marriage, but it is expressly
defined as something other than a marriage. It must be concluded in a specified formal way, it acts as an
impediment to another civil union or marriage, and it may be dissolved only in a formal way. Six other
states (Connecticut, New Jersey, California, Oregon, Washington, and Maine) followed Vermonts lead
and enacted legislation allowing formalized legal unions between persons of the same sex, although in
some of these states the term used is registered partnership rather than civil union.
26. See 1 U.S.C.A. 7 and 28 U.S.C.A. 1738C (1996).
27. 1 U.S.C.A. 7 (1996).
28. 28 U.S.C.A. 1738C (1996).
29. Cf., e.g., In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) (holding that parties to a Canadian
same-sex marriage did not qualify as spouses for purposes of the federal Bankruptcy Code); In re
560
same-sex marriage could file a joint tax return as a spouse under Massachusetts law, but not
under federal law. In United States v. Windsor,30 the United States Supreme Court held this
part of DOMA unconstitutional under the Fifth Amendment of the federal Constitution. The
Court noted that [b]y history and tradition the definition and regulation of marriage has
been treated as being within the authority and realm of the separate States, but also acknowledged that Congress can make determinations that bear on marital rights and privileges.31
The problem with DOMA, the Court found, is that it reject[ed] the long-established precept
that the incidents, benefits, and obligations of marriage are uniform for all married couples
within each State, though they may vary, subject to constitutional guarantees, from one State
to the next.32
This federal intrusion on state power could render DOMA unconstitutional on federalism grounds, but the Court found it unnecessary to decide the case on those grounds because
[t]he States power in defining the marital relation is of central relevance in this case quite
apart from principles of federalism.33 Astates decision to give this class of persons the right
to marry conferred upon them a dignity and status of immense import,34 whereas DOMA
use[d] this state-defined class for the opposite purposeto impose restrictions and disabilities
[ and] to injure the same class the State seeks to protect.35 In so doing, DOMA violate[ed]
basic due process and equal protection principles applicable to the Federal Government under
the Fifth Amendment.36 DOMAs unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage operate[d] to deprive same-sex couples of
the benefits and responsibilities that come with the federal recognition of their marriages.37
DOMAs principal effect was to identify a subset of state-sanctioned marriages and make them
unequal, and its principal purpose was to impose inequality.38 It single[d] out a class of
persons deemed by a State entitled to recognition and protection and impose[d] a disability
on them by refusing to acknowledge a status the State finds to be dignified and proper and
treating those persons as living in marriages less respected than others.39 For these reasons,
Goodale, 2003 WL 22173701 (Bankr. W.D. Wash. 2003). It is estimated that more than 1,000 provisions
of federal statutes use the terms marriage or spouse.
30. ___ U.S. ___, 133 S.Ct. 2675 (2013).
31. Id. at 268990.
32. Id. at2692.
33. Id. In his dissenting opinion, Chief Justice Roberts found it undeniable that the majority opinion
was based on federalism because its dominant theme was the federal governments intrusion into
an area central to state domestic relations law. Id. at 2697 (Roberts, C.J., dissenting). In his dissenting
opinion, Justice Alito concluded that the vertical DOMA did not encroach on the states prerogatives
because it d[id] not prevent any State from recognizing same-sex marriage or from extending to same-
sex couples any right, privilege, benefit, or obligation stemming from state law but simply defined a
class of persons to whom federal law extends certain special benefits and upon whom federal law imposes
certain special burdens. Id. at 2720 (Alito, J., dissenting).
34. Id. at2692.
35. Windsor, 133 S.Ct. at2692.
36. Id. at2693.
37. Id.
38. Id. at2694.
39. Id. at 269596.
561
the Court concluded, DOMA [was] unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendments Due Process Clause [which] contains within it the
prohibition against denying to any person the equal protection of the laws.40
In the penultimate sentence of the opinion, the Court stated that [t]his opinion and its
holding are confined to those lawful marriages, namely marriages that are legal under state
law.41 The negative implication was that the opinion did not apply to challenges against state
laws that prohibited same-sex marriages. In his dissenting opinion, Justice Scalia expressed deep
disbelief, stating that it was simply a matter of time for the other shoe to drop.42 He thought
it inevitable that the majority would reach the same conclusion with regard to state laws
denying same-sex couples marital status.43 By formally declaring anyone opposed to same-sex
marriage an enemy of human decency, Scalia said, the majority arms well every challenger
to a state law restricting marriage to its traditional definition.44 Scalia predicted that a Court
that finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the
personhood and dignity would certainly be similarly appalled by state legislatures irrational
and hateful failure to acknowledge that personhood and dignity in the first place.45
2.HorizontalDOMA
Two years after Windsor, the other shoe did drop. In Obergefell v. Hodges,46 the Supreme
Court held that all state prohibitions of same-sex marriages were unconstitutional under the
Due Process and Equal Protection clauses of the Fourteenth Amendment. In the meantime,
especially after Windsor, the movement supporting same-sex marriages gained considerable
strength and speed. Thus, by the time of the Obergefell decision, thirty-35 states and the District
of Columbia had by legislative or judicial action legalized same-sex marriages.47
40. Id. at2695.
41. Windsor, 133 S.Ct. at2696.
43. Id. at2709.
44. Id. at2710.
45. Id.
46. Obergefell, ___U.S. ___, 135 S.Ct. 2584 (2015).
47.In chronological order, the following jurisdictions had legalized same-
sex marriages before
Windsor: Massachusetts (May 17, 2004), Connecticut (Nov. 12, 2008), Iowa (Apr. 24. 2009), Vermont
(Sept. 1, 2009), New Hampshire (Jan. 1, 2010), District of Columbia (Mar. 3, 2010), NewYork (June 24,
2011), Washington (Dec. 9, 2012), Maine (Dec. 29, 2012), and Maryland (Jan. 1, 2013). In chronological
order, the following states did likewise after Windsor:California (June 28, 2013), Delaware (July 1, 2013),
Rhode Island (Aug. 1, 2013), Minnesota (Aug. 1, 2013), New Jersey (Oct. 21, 2013), Hawaii (Dec. 2,
2013), New Mexico (Dec. 19, 2013), Oregon (May 19, 2014), Pennsylvania (May 20, 2014), Illinois (June
1, 2014), Indiana (Oct. 6, 2014), Oklahoma (Oct. 6, 2014), Utah (Oct. 6, 2014), Virginia (Oct. 6, 2014),
Wisconsin (Oct. 6, 2014), Colorado (Oct. 7, 2014), Nevada (Oct. 9, 2010), West Virginia (Oct. 9, 2014),
North Carolina (Oct. 10, 2014), Idaho (Oct. 13, 2014), Alaska (Oct. 17, 2014), Arizona (Oct. 17, 2014),
Wyoming (Oct. 21, 2014), Kansas (Nov. 12, 2014), Montana (Nov. 19, 2014), and South Carolina (Nov.
20, 2014). The remaining 15 states and the Commonwealth of Puerto Rico continued to prohibit same-
sex marriages, but challenges against those prohibitions were pending before state or federal courts. The
only jurisdictions in which prohibitions against same-sex marriages had not been challenged were the
territories of American Samoa, Guam, Mariana Islands, and Virgin Islands.
562
The Courts analysis centered primarily on the Due Process clause. After explaining why the
right to marry is a fundamental right protected by the Constitution, the Court concluded that
[t]here is no difference between same-and opposite-sex couples with respect to this [right],48
that same-sex couples have the same right as opposite-sex couples to enjoy [it],49 and thus
laws excluding same-sex couples from the marriage right impose stigma and injury of the
kind prohibited by [the Due Process Clause].50
The Court also held that these laws also abridge central precepts of equality in violation
of the Equal Protection Clause:51
[These laws] are in essence unequal: [s]ame-sex couples are denied all the benefits afforded to
opposite-sex couples and are barred from exercising a fundamental right. Especially against a
long history of disapproval of their relationships, this denial to same-sex couples of the right to
marry works a grave and continuing harm. The imposition of this disability on gays and lesbians
serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process
Clause, prohibits this unjustified infringement of the fundamental right to marry.52
Finally, without mentioning the horizontal part of DOMA, the Court answered in the
affirmative the question of whether the Constitution requires States to recognize same-sex
marriages validly performed out of State.53 Acknowledging the obvious, the Court noted that,
if States are required by the Constitution to issue marriage licenses to same-sex couples,
the justifications for refusing to recognize those marriages performed elsewhere are undermined.54 Having held that same-sex couples may exercise the fundamental right to marry
in all States, the Court also held that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex
character.55
Obviously, this part of Obergefell renders unconstitutional (or at least moot) the horizontal part of DOMA. If the Constitution obligates states to recognize an out-of-state same-sex
state marriage, Congress may not release states from that obligation, as the horizontal part
of DOMA purported to do. Indeed, DOMA was the only statute enacted under the authority of the Full Faith and Credit clause in which Congress purported to release states from the
48. Obergefell, ___ U.S. ___, 135 S.Ct. at2601.

49. Id. at2600.
50. Id. at 2602. See also id. at 260102 ([B]y virtue of their exclusion from that institution, same-sex
couples are denied the constellation of benefits that the States have linked to marriage. This harm results
in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex
couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and
lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of
a central institution of the Nations society.).
51. Id. at2604.
52. Id. at 259091.
53. Id. at2607.
54. Obergefell, ___ U.S. ___, 135 S.Ct. at2607.
55. Id.
563
obligation to enforce the laws and judgments of sister states.56 In an earlier unrelated case, at
least a plurality of the Supreme Court expressed doubt about Congresss power to cut back on
the measure of faith and credit required by a decision of this Court.57 The plurality noted that
Congresss power to implement the Full Faith and Credit clause was not exclusive, and that
the Court has given effect to the Clause beyond that required by implementing legislation.
The plurality concludedthat,
[W]hile Congress clearly has the power to increase the measure of faith and credit that a State
must accord to the laws or judgments of another State, there is at least some question whether
Congress may cut back on the measure of faith and credit required by a decision of this Court.58
By deciding this case on Fourteenth Amendment grounds, Obergefell did not have toand
did notdiscuss Congresss power under the Full Faith and Credit clause.59
3. Interstate Recognition
of Same-S ex Relationships
DOMA simply permitted, but did not require, states to refuse recognition of out-of-state sister-
state same-sex marriages or unions.60 Thus, even in the pre-Obergefell years, states that did not
enact their own mini-DOMAs or otherwise articulate a strong public policy against such
marriages or unions were free to grant such recognition, and many did. Although these decisions have only historical value today, they deserve mention because of their didacticvalue.
For example, in Martinez v.County of Monroe,61 decided before the NewYork legislature
authorized same-sex marriages, the court held that a Canadian same-sex marriage between two
NewYorkers was entitled to recognition in NewYork. The court noted that NewYork courts
had recognized out-of-state marriages that were valid in the state where they were solemnized
or entered into, unless (1)they involved incest or polygamy, both of which fall within the prohibitions of natural law,62 or (2)they were prohibited by a statute that specifically addressed
out-of-state marriages. The Canadian marriage in Martinez clearly did not fall within the first
56. In contrast, the Parental Kidnapping Prevention Act (PKPA), enacted in 1980, and the Full Faith and
Credit for Child Support Orders Act (FFCCSOA), enacted in 1994, require states to enforce child custody
and child support judgments of sister states. See 28 U.S.C.A. 1738AB (2015).
57. Thomas v.Washington Gas Light Co., 448 U.S. 261, 272 (1980).
58. Id.
59. In a pre-Obergefell case, a lower court opined that Congress actions in adopting DOMA are exactly
what the Framers envisioned. [They are] an appropriate exercise of its power to regulate conflicts
between the laws of two different States, in this case, conflicts over the validity of same-sex marriages.
Wilson v.Ake, 354 F.Supp.2d 1298, 1303 (M.D. Fla.2005).
60. 28 U.S.C.A. 1738B(g) (2015).
61. 850 N.Y.S.2d 740 (N.Y. App. Div. 2008), leave to appeal dismissed, 889 N.E.2d 496 (N.Y.2008).
62. Id. at 742. Thus, NewYork courts have recognized foreign marriages between uncle and niece, and
between underage spouses, common-law marriages, and marriages by proxy, which would have been
invalid if solemnized in NewYork. Seeid.
564
category, but the marriage also did not fall within the second category becauseunlike other
statesNewYork had not enacted a mini-DOMA or similar legislation to prohibit the recognition of same-sex marriages validly entered into outside of NewYork.63
Similarly, in Port v. Cowan,64 which was decided before Maryland voters approved the
legalization of same-sex marriages by referendum, the court held that two women who were
legally married in California could apply for a divorce in Maryland.65 The court noted that,
under standard choice-of-law rules, a marriage that is valid where contracted is recognized in
Maryland unless it is repugnant to Marylands public policy. Under this standard, Maryland
cases had recognized out-of-state common-law marriages and marriages between uncle and
niece contracted in states that allowed them. The court concluded that same-sex marriages
were analogous, and that this case did not meet the intentionally high repugnancy bar, especially given the long list of recent Maryland enactments that accorded same-sex unions several
other protections and benefits.
In Surnamer v. Ellstrom,66 the forum state of Arizona had a strong public policy against
same-sex marriages, but the court held that this policy did not prevent the court from annulling a Canadian same-sex marriage under Arizona law. The trial court had dismissed an
uncontested petition to annul the marriage, reasoning that because Arizona law prohibited
the marriage there [was] nothing to dissolve or annul.67 Indeed, the Arizona Constitution
63. Id. at 742 (emphasis added). Likewise, in In re Estate of Ranftle, 917 N.Y.S.2d 195 (N.Y. App. Div.
2011), decided during the same period, the court rejected the argument that New Yorks public policy
prevented the recognition of a Canadian same-sex marriage between two NewYorkers. The court noted
that same-sex marriages did not fall within the exceptions of the comity-based marriage-recognition rule.
The court reasoned that the fact that the New York Legislature had not acted (until then) to authorize
same-sex marriages in New York or to require recognition of validly performed out-of-state same-sex
marriages cannot serve as an expression of public policy for the State, and that [i]n the absence of an
express statutory prohibition legislative action or inaction does not qualify as an exception to the marriage recognition rule. Id. at 19697. See also In re Adoption of Sebastian, 879 N.Y.S.2d 677 (N.Y. Sur.
2009) (holding that the parties to a Dutch same-sex marriage were entitled to all benefits of spouses
under NewYork law, including the right to adopt each others children).
64. 44 A.3d 970 (Md.2012).
65. Elia-Warnken v.Elia, 972 N.E.2d 17 (Mass. 2012), was also a divorce action, which, however, involved
both a same-sex marriage and a civil union. The parties were a same-sex couple married in Massachusetts,
but one of them had previously entered into a Vermont same-sex civil union that was not dissolved at
the time of the Massachusetts marriage. The question was whether the Vermont civil union should be
treated as the equivalent of marriage for purposes of applying Massachusetts polygamy statutes. The
Massachusetts court answered this question in the affirmative, reasoning that, for all practical purposes,
a Vermont civil union was the functional equivalent of marriage, which Massachusetts defines as the
voluntary union of two persons as spouses, to the exclusion of all others. Id. at 33 (quotations omitted). Acivil union required a legal decree to solemnize, and a legal decree to dissolve it, just as a
marriage [does], and all of the laws concerning divorce, for example, property division, spousal maintenance, and child custody apply equally to civil unions. Id. The court held that, because the Vermont civil
union was the equivalent of a marriage, and because the union had not been dissolved at the time of the
Massachusetts marriage, that marriage was void ab initio. In Hunter v.Rose, 975 N.E.2d 857 (Mass. 2012),
another same-sex divorce case, the same court recognized under comity principles a California same-sex
domestic partnership as equivalent to marriage that carried all the incidents of marriage, including the
parentage of children born during the partnership.
66. 2012 WL 2864412 (Ariz. Ct. App. July 12, 2012)(unpublished and designated as non-precedential).
67. Id.at*1.
565
provided that [o]nly a union of one man and one woman shall be valid or recognized as a
marriage in this state.68 The Court of Appeal noted that this provision expressed Arizonas
strong public policy against same-sex marriages, but concluded that granting a request for
annulment was consistent with, rather than contrary to, that policy. By its nature, said the
court, an action to annul a marriage does not recognize its validity; to the contrary, it is premised on the notion that the marriage is not valid, but void.69
Langan v.St. Vincents Hospital of NewYork,70 which was decided at a time NewYork did
not recognize in-state or out-of-state same-sex marriages or unions, illustrates the distinction
noted earlier between, on the one hand, recognizing a same-sex marriage or union as such
and, on the other, according it some of the incidents of marriage. Langan involved a Vermont
civil union, which had ended with the death of one of the partners. The sole question before
the court was whether the surviving partner qualified as a spouse for purposes of a wrongful
death action.71 In a well-written opinion, the lower court answered the question affirmatively.72
However, in a brief decision, a slight majority of NewYorks intermediate court reversed. The
court found that theories of Full Faith and Credit and comity ha[d]no application73 to this
case because Vermont had not accorded the status of spouses to civil-union partners. In authorizing civil unions, said the court, the Vermont Legislature went to great pains to expressly
decline to place civil unions and marriage on an identical basis and refused to alter traditional concepts of marriage.74
A dissenting opinion noted that New Yorks wrongful death statute was not intended to
recompense the survivor but rather to make a culpable tortfeasor liable for fair and just compensation to those who, by reason of their relationship to the decedent, suffer economic injury
as a result of the decedents death.75 Hence, preventing the plaintiff from asserting a wrongful
death claim [does not] promote the States interest in fostering the institution of marriage
[but does] provide a windfall to a potential tortfeasor.76
68. Id.at*2.
69. Id. The court also held that the trial court had jurisdiction to divide the parties property and determine their respective property claims upon annulment. See also Christiansen v. Christiansen, 253 P.3d
153 (Wyo. 2011), quoted supra at text accompanying note 23 (holding that same-sex spouses married in
Canada could obtain a divorce in Wyoming, even though Wyoming did not allow same-sex marriages in
Wyoming and did not recognize, for other purposes, same-sex marriages entered into in another state).
70. 802 N.Y.S.2d 476 (N.Y. App. Div.2005).
71. The parties, NewYork domiciliaries, had lived together in NewYork for 15years before they traveled
to Vermont where they entered into a civil union. A year after they returned to New York, one of the
partners was injured in a NewYork accident and later died in defendants NewYork hospital.
72. See Langan v.St. Vincents Hosp. of NewYork, 765 N.Y.S.2d 411 (N.Y. Sup. Ct.2003).
73. Langan, 802 N.Y.S.2d at479.
74. Id.
75. Id. at486.
76. Id. at 490. For a subsequent NewYork case to the same effect, see Funderburke v.N.Y.S. Dept of Civ.
Serv., 822 N.Y.S.2d 393 (N.Y. Sup. Ct. 2006) (denying spousal health insurance benefits to a party to a
same-sex Canadian marriage). But see Godfrey v.Spano, 836 N.Y.S.2d 813 (N.Y. Sup. Ct. 2007)(upholding a local ordinance requiring recognition of same-sex marriages contracted in states or countries that
allowthem).
566
Hennefeld v.Township of Montclair 77 is an example of how a willing court can accommodate78 a civil union partner by according him or her some of the incidents of marriage even
though the lex fori does not allow such unions. The Hennefeld plaintiffs, New Jersey domiciliaries, had entered into both a Vermont civil union and a Canadian same-sex marriage. This
case involved the question of whether they were entitled to certain property tax benefits that
New Jersey law afforded spouses.79 The court found that neither the Canadian marriage nor the
Vermont civil union rendered the plaintiff eligible for the requested benefit. However, the court
did note that, in the interim, New Jersey had enacted a Domestic Partnership Act (DPA), which
accorded domestic partners certain benefits previously reserved for married persons. The court
reasoned that, although the DPA did not mention the particular tax benefit, its enumeration
of rights was not exclusive and thus was susceptible to expansive interpretation. Under this
reasoning, the court decided to grant requested benefit.
I V. D I V O R CE
American law is almost unique in having succeeded to eliminate the choice-of-law question
in divorce cases by merging it into the jurisdictional question: a state that has jurisdiction
applies its own law in deciding entitlement to divorce.80 Until the first part of the twentieth
century, only the state of the matrimonial domicile (i.e., the spouses common domicile) had
jurisdiction to grant a divorce.81 Under this regime, it was natural for that state to apply its own
substantive law of divorce. Thus, understandably, the choice-of-law question was merged with
the jurisdictional question. However, in Williams v.North Carolina (Williams I),82 the Supreme
Court held that a state that was not the matrimonial domicile, but subsequently became the
77. 22 N.J. Tax 166 (N.J. Tax Ct. 2005). This case was decided at a time New Jersey did not recognize
same-sex marriages or unions.
78. See P. Hay, Recognition of Same-Sex Relationships in the United States, 54 Am. J.Comp. L. 254, 268
(2006 Supp.) (considering this case as an example of Angleichung, Anpassung, or coordination des
systmes).
79. The parties had lived together for 25years, the last 15 of which they lived in a house they co-owned
as tenants by the entirety. One of the plaintiffs was an honorably discharged and 100 percent disabled
veteran. Under a New Jersey tax statute, an honorably discharged 100percent disabled veteran is entitled
to a property tax exemption on his dwelling house. In applying this statute to veterans who are married,
New Jersey assessors have followed the practice of allowing a 100percent exemption, even if the veteran
had title to less than 100percent of the house. In this case, the assessor allowed only a 50percent exemption. The plaintiffs challenged this assessment in New Jerseys TaxCourt.
80. In other countries, the question of whether a court has jurisdiction to entertain a divorce action
has remained separate from the question of which law that court will apply in granting the divorce. The
latter law is usually the law that governs the effects of the marriage, which is the law of a state with
which both spouses are affiliated. In recent years, some countries allow the alternative application of
the law of the forum state, at least when both spouses have a sufficient connection with that state. See S.
Symeonides, Private International Law at the End of the Twentieth Century: Progress or Regress? 5556
(2000) (discussing rules from Belgium, China, Germany, Holland, Hungary, Italy, Switzerland, and the
former Yugoslavia). For other countries, see Symeonides, Codifying Choice of Law 26971.
81. See Atherton v.Atherton, 181 U.S. 155 (1901).
82. 317 U.S. 287 (1942).
567
domicile of only the plaintiff spouse, had jurisdiction to grant a divorce, even in the absence of
in personam jurisdiction over the defendant spouse (ex parte divorce).83
Although the choice-of-law question was not before the Court in Williams I, the Court did
state in dicta that its decision to grant Nevada jurisdiction also carried with it a permission to
apply its divorce law to the merits.84 Instead of taking the opportunity to separate the two questions now that their separateness became clearer, the Court decided to perpetuate the merger.
This decision was hardly the result of inattentiveness or error. The reason the two Williams
I plaintiffs decided to go to Nevada was because the law of Nevada would grant a divorce
whereas the law of North Carolina, their matrimonial domicile, would not. Therefore, unless
Nevada was free to apply its own law, the plaintiffs and others like them would have no incentive to sue there and the migratory divorces movement would not have begun. By allowing
Nevada to apply its own law, the Court fueled that movement and accelerated the process of
liberalizing the divorce laws of all other states of the union. Thus, despite the Courts protestations to the contrary, its decision in Williams I d[id] involve selection of a rule which will
encourage the practice of divorce.85 If multistate social engineering was not what the Court
intended, it is certainly what the Courts decision produced.86
The Court had another opportunity to separate the choice-of-law question from the jurisdictional question in Sherrer v.Sherrer,87 a case in which the plaintiff spouse had lived in the
forum state for only 93 days. However, the stay-at-home defendant spouse appeared in the
divorce proceeding, mounting a lukewarm defense on the merits without contesting either
the jurisdiction of the court or its application of forum law. The Supreme Court held that the
principle of jurisdictional finality would be impermissibly undermined if spouses were allowed
to collaterally attack the divorce judgment in another state. Here again, jurisdictional considerations absorbed or displaced substantive considerations. The Court did not see a reason to
differentiate divorce proceedings from other cases based on the fact that such proceedings are
not truly adversarial and the parties do not raise, much less litigate, the choice-of-law issue.
Nor did the Court accept Justice Frankfurters arguments that societal interests beyond and
above the parties interests are implicated in divorce proceedings.88
In Alton v. Alton,89 the federal district court for the Virgin Islands did what state courts
rarely do. It held that the existence of in personam jurisdiction over both spouses, who were
83. Williams I involved two sets of spouses, all of whom were domiciled in North Carolina. One spouse
from each marriage moved to Nevada and, after arguably establishing a domicile there, sued their stay-at-
home spouses for divorce. Because the defendants did not appear in the Nevada proceedings, Nevada did
not have in personam jurisdiction overthem.
84. See Williams I, 317 U.S. 287,296.
85. See id. at 30203.
86. See id. at 312 (Jackson, J., dissenting) (It is not an exaggeration to say that this decision repeals the
divorce laws of all the states and substitutes the law of Nevada as to all marriages one of the parties to
which can afford a short trip there.).
87. 334 U.S. 343 (1948).
88. Sherrer, 334 U.S.at 362 (Frankfurter, J., dissenting) (the State of domicile has an independent interest in the marital status of its citizens that neither they nor any other State with which they may have
a transitory connection may abrogate against its will. Its interest is not less because both parties to the
marital relationship instead of one sought to evade its laws.).
89. 207 F.2d 667 (3d Cir.1953).
568
Connecticut domiciliaries, did not carry with it the power to divorce them under the law of
the forum without actual proof that the plaintiff had acquired a domicile in the forum. The
Court of Appeals affirmed over a dissent by Judge Hastie who advanced for the first time the
argument of separating choice of law from jurisdiction.90 Unfortunately, the Supreme Court
did not have the opportunity to address Hasties argument because in the meantime Mr. Alton
obtained a bilateral divorce in Connecticut, making the casemoot.
The practice of merging the choice-of-law question into the jurisdictional question in
divorce cases has never been seriously re-examined. This practice was thought to be so deeply
entrenched in American jurisprudence by the time of the Restatement (Second), that its drafters, who rarely opted for inexorable rules, felt confident enough to proclaim that [t]he local
law of the domiciliary state in which the action is brought will be applied to determine the
right to divorce.91 No qualifications or unless clauses were deemed necessary. Absent is the
usual adage that accompanies the vast majority of all other sections of the Restatement, which
provide that the law designated as applicable is not to be applied if another state has a more
significant relationship. Apparently, in the drafters opinion, no other state can have a more
significant relationship than the state of one spouses domicile, not even a state that was the
former matrimonial domicile and continues to be the domicile of the other spouse and their
children.92
Any objections to this approach were mooted as, one after the other, the states began liberalizing their divorce laws and adopting no-fault divorce. By merging choice-of-law into
jurisdiction, Williams [I]fueled the movement for migratory divorces, which in turn succeeded
in eliminating conflicts among the divorce laws of the 50 states. Some of these conflicts may
return, albeit on a much smaller scale, with the adoption in some states of the institution of
covenant marriages that cannot be dissolved on no-fault grounds.93
In any event, the American practice in divorce cases is now well settled, as follows. Astate
is constitutionally free to (and does) apply its own law to grant a divorce, even on a ground not
recognized by other states, if that state (1)is the domicile of only one of the spouses and does
not have jurisdiction over the other spouse (ex parte divorce), or (2)is not the domicile of
90. Id. at 685 (Hastie, J., dissenting) ([U]nder correct application of conflict of laws doctrine, and even
under the due process clause, it [may be] incumbent upon the Virgin Islands, lacking connection with
the subject matter, to apply the divorce law of some state that has such connection, here Connecticut.).
91. Restatement (Second) 285 (1971).
92. The Restatement provides that the local law of the forum determines the right to a divorce, not
because it is the place where the action is brought but because of the peculiar interest which a state has
in the marriage status of its domiciliaries. Restatement (Second) 285cmt. a . This is a sound statement
when there is only one domiciliary state, but not when, as in Williams or Sherrer, there are two such
states and the forum state is (arguably) the domicile of only the deserting spouse. In such a case, the
interest of the forum state in the marriage status of its domiciliaries is peculiar enough, but not necessarily any more legitimate than the interest of the former matrimonial domicile that continues to be the
domicile of the deserted spouse.
93.For a discussion of covenant marriages and the attendant conflict-of-laws problems, see P. Hay,
The American Covenant Marriage in the Conflict of Laws, 64 La. L. Rev. 43 (2003); K. Spaht & S.
Symeonides, Covenant Marriage and the Law of Conflict of Laws, 32 Creighton L. Rev. 1085 (1999).
For a case involving parties to a Louisiana covenant marriage obtaining a divorce in another state, see
Blackburn v.Blackburn, 2015 WL 1608431 (Ala. Civ. App. April 10,2015).
569
either spouse but has in personam jurisdiction over both of them (bilateral divorce). In the
case of an ex parte divorce, the courts power is limited to dissolving the bonds of matrimony
by granting a divorce; it does not extend to adjudicating incidents of divorce, such as the right
to alimony, support, custody, or dividing the marital property. In order to adjudicate these incidents the court must possess jurisdiction over both spouses. This is the doctrine of divisible
divorce enunciated in a series of Supreme Court decisions.94
The above discussion is limited to divorces granted in a state of the United States, which for
this reason fall within the reach of the Full Faith and Credit clause of the federal Constitution.
Because neither this clause nor the principle of jurisdictional finality enunciated in Sherrer95
apply to foreign judgments, the recognition of foreign divorces is entirely discretionary, but
subject to due process limits. Ex parte or even bilateral, foreign divorces granted on a jurisdictional basis other than domicile, especially quickie divorces issued by foreign divorce mills
during weekend trips to foreign resorts in the Caribbean or Mexico, are particularly problematic. Most courts do not recognize these divorces. However, some courts have recognized
them, or have held that participating parties were estopped from challenging them.96 Once an
American court recognizes a foreign divorce, then the American judgment is entitled to recognition in sister states under the Full Faith and Credit clause.
V. C H I L D S U P P O RT A ND CUS T ODY
The practice of merging the choice-of-law and jurisdictional questions is also generally followed
in interstate child support or custody cases. As in the case of divorce, the substantive laws of
the various states in these two areas differ in detail rather than in basic policy. For this reason,
choice of law is rarely a problem in these cases. The conflict is almost always about which state
has jurisdiction to issue an initial child support or custody decree, or to modify a decree issued
in another state. Fortunately, in recent years the enactment of federal statutes, as well as uniform
laws adopted by all states, has removed most of the previously prevalent jurisdictional conflicts.
A. CHILD SUPPORT
For interstate child support disputes, the two applicable statutes are the federal Full Faith and
Credit for Child Support Orders Act of 1994 (FFCCSOA),97 and the Uniform Interstate Family
Support Act of 2001 (UIFSA).98 The federal Act requires states to enforce according to its terms
94. See, e.g., Estin v. Estin, 334 U.S. 541 (1948); Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957); Simons
v.Miami Beach First Natl Bank, 381 U.S. 81 (1965).
95.This principle prevents spouses and their privies from collaterally attacking a bilateral divorce
granted by a court that had jurisdiction over both spouse.
96. For a thorough discussion of the cases, see Hay, Borchers & Symeonides, Conflict of Laws 71424.
97. 28 U.S.C.A. 1738B (2015).
98. This Act (or its predecessors of 1992 and 1996)was adopted by all states. In 2008, UIFSA was amended
to comport with the obligations of the United States under the 2007 Hague Convention on Maintenance,
which the U.S.has signed but not ratified. The amendments integrate the substance of the Convention
570
a child support order made consistently with the Act by a court of another state.99 An order
is consistent with the Act if it was issued by a court that had jurisdiction under the law of the
issuing state (in this case the UIFSA), which in turn must comply with federal due process standards.100 Astate that has issued a child support order consistently with the Act has continuing,
exclusive jurisdiction over the order as long as it remains the childs home State or the residence
of any individual contestant.101 Other states must enforce and may not modify the order, unless
the issuing state no longer has continuing, exclusive jurisdiction (because it no longer is the
childs home state or the residence of any contestant) or all contestants have formally requested
the issuing court to allow a court of another state to assume jurisdiction to modify the order.102
The federal Act provides that, in issuing or enforcing a support order or, where permitted,
modifying such an order, the court shall apply the law of the forum, subject to two exceptions:103 (1)in interpreting an order issued in another state, the court shall apply the law of
the issuing state; and (2)in enforcing arrears under an order, the court shall apply the statute
of limitation of either the issuing state or the forum state, whichever provides the longer period
of limitation.104 The repeated use of the verb shall makes clear that these choice-of-law rules
are compulsory and thus prevail over contrary rules in statelaw.
The Uniform Act also contains choice-of-law rules, which, although more detailed, are
not likely to conflict with the federal Act.105 For example, Section 604(a) of the Uniform Act
provides that the law of the issuing state governs the nature, extent, amount, and duration of
into UIFSA. By July 17, 2015, 44 states adopted the 2008 version. Adoption of the Act was pending
in four additional states (California, Illinois, Michigan, and New Jersey), the District of Columbia, and
Puerto Rico. Massachusetts took no action. See http://www.uniformlaws.org/Act.aspx?title=Interstate%20
Family%20Support%20Act%20Amendments%20%282008%29 (last visited on Nov. 19,2015).
99. 28 U.S.C.A. 1738B(a) (2015).
100. The UIFSA provides that a state has jurisdiction if it has in personam jurisdiction over the defendant under general principles, or:(1)if the defendant (a)has resided with the child in the forum state or
resided there and provided prenatal expenses or support for the child; (b)engaged in sexual intercourse
in that state and the child may have been conceived by that act of intercourse; or (c)asserted parentage in
the putative father registry maintained in that state; or (2)if the child resides in the forum state as a result
of the acts or directives of the defendant. See UIFSA 201(2015).
101. 28 U.S.C.A. 1738B (d). Astate is considered the childs home State if the child lived there with a
parent or a person acting as parent for at least six consecutive months immediately preceding the filing of
the petition or, if the child is less than six months old, if the child lived there from birth. Id. at(b).
102. 28 U.S.C.A. 1738B(e) (2015).
103. 28 U.S.C.A. 1738B(h) (2015). The Uniform Act provides that the court shall apply the procedural
and substantive law, including the rules on choice of law of the forum state. UIFSA 303(1) (2015)
(emphasis added).
104. 28 U.S.C.A. 1738B(h) (2015). For cases applying the forums longer statute of limitations, see, e.g.,
Shelnut v.Dept of Human Servs., 9 So. 3d 359 (Miss. 2009), rehg denied (June 4, 2009). For cases applying
the other states longer statute of limitations, see, e.g., Johns v.Johns, 2013 WL 6050939 (Tenn. Ct. App.
Nov. 15, 2013); Dept. of Social Servs. v.Peteet, 40 So. 3d 1015 (La. Ct. App.2010); Sussman v.Sussman,
687 S.E.2d 644 (Ga. App.2009).
105. For example, the Uniform Act provides that the law of the issuing state governs the nature, extent,
amount, and duration of current payments; the computation and payment of arrearages and accrual
of interest; and the existence and satisfaction of other obligations under the support order. See UIFSA
571
support payments,106 the computation and payment of arrearages and accrual of interest, and
the existence and satisfaction of other obligations under the support order. Although some of
these issues go beyond interpreting the order, the application of the law of the issuing state is
within the spirit of the federalAct.
B. CHILD CUSTODY
1.InterstateCases
The same scheme and interplay between a federal statute and a uniform statute adopted in
all states has reduced jurisdictional competition in interstate child custody disputes. The federal Parental Kidnapping Prevention Act of 1980 (PKPA)107 and the Uniform Child Custody
Jurisdiction and Enforcement Act of 1997 (UCCJEA)108 work together. The federal Act requires
states to enforce according to its terms, and without modifying, a child custody decree made
consistently with the Act by a sister state court.109
A custody decree is consistent with the Act if it was issued by a court that had jurisdiction
under both the law of the issuing state (i.e., the UCCJEA) and the federal Act. Both acts vest primary jurisdiction in the childs home state, defined as the state in which, at the commencement
of the proceeding or immediately before, the child lived with a person acting as parent for at least
six consecutive months, or since birth if the child is less than six months old.110 If no state meets
this qualification, the federal Act authorizes jurisdiction on certain alternative bases, such as in
604(a) (2015). Although some of these issues go beyond interpreting the order, the application of the
law of the issuing state is within the spirit of the federalAct.
106. Many cases involve the issue of duration. They consistently apply the law of the issuing state. See,
e.g., Witowski v. Roosevelt, 199 P.3d 1072 (Wyo. 2009) (holding that a fathers obligation to pay child
support did not terminate when child reached 18 years of age as provided by Wyoming law because,
under the terms of a Virginia child support order, the obligation continued until child reached age 23);
In re Scott, 999 A.2d 229 (N.H. 2010)(holding that a New Hampshire court could not modify the duration of child support obligations under a Massachusetts decree because duration was a non-modifiable
part of the decree under Massachusetts law); DeSantis v.Lara, No. C-080482, 2009 WL 1565068 (Ohio
Ct. App. June 5, 2009)(holding that the fathers obligation to pay support until child reached age 21 as
provided by the issuing states law did not terminate, although Ohio had an earlier termination point);
Epstein v.Shoshani, 889 N.Y.S.2d 48 (N.Y. App. Div. 2009)(holding that because under the issuing states
law the fathers obligation had terminated when the child reached age of 18, NewYork could not extend
that obligation); Khaja v.Khan, 902 N.E.2d 857 (Ind. Ct. App.2009), rehg denied (May 7, 2009)(holding
that the law of the issuing state governed the fathers compliance with the support order and his petition
for modification); Jamison v.Orris, 2009 WL 586746 (N.J. Super. Ct. App. Div. Mar. 10, 2009)(holding
that the issuing states law governed the issue of the childs emancipation); Wills v.Wills, 745 N.W.2d 924
(Neb. Ct. App.2008) (holding that the duration of support obligation imposed by New Mexico judgment
was governed by New Mexicolaw).
107. 28 U.S.C.A. 1738A (2015).
108. By 2015, this Act had been adopted in all states, the District of Columbia, and the U.S. Virgin
Islands.
109. 28 U.S.C.A. 1738A(a) (2015).
110. 28 U.S.C.A. 1738A(b)(4) (2015); 28 U.S.C.A. 1738A(c)(2)(A) (2015).
572
cases of abandoned children or other emergencies.111 When a state that has jurisdiction under
the Act issues a child custody decree, another state may not modify it unless the issuing state
no longer has jurisdiction (or has declined to exercise it) and the second state has jurisdiction
under the Act. Neither the federal nor the uniform Act addresses the choice-of-law question. The
prevailing American practice in determining custody has been to apply the law of theforum.
2.InternationalCases
The federal Act does not apply to custody decrees issued in foreign countries. However, the
uniform Act requires recognition and enforcement of custody decrees issued in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of
this [Uniform Act].112 This provision is important in those cases in which the foreign country
is not a party to the Hague Convention on the Civil Aspects of International Child Abduction
of 1980. This United States is a party to this Convention and Congress has implemented it by
enacting the International Child Abduction Remedies Act (ICARA).113
Article 1 of the Hague Convention binds each Contracting State:
(a) To secure the prompt return of children wrongfully removed to or retained in any Contracting
State; and
(b) To ensure that rights of custody and of access under the law of one Contracting State are
effectively respected in the other Contracting States.114
Article 3 provides that the removal or the retention of a child is wrongful when:
(a) It is in breach of rights of custody under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) At the time of removal or retention those rights were actually exercised or would have
been so exercised but for the removal or retention.115
Article 5 defines rights of custody to include the right to determine the childs place
of residence, and also recognizes rights of access, such as visitation rights, but offers no
return remedy for a breach of those rights.116
Abbott v.Abbott117 involved the question of what qualifies as rights of custody under the
Convention. The Abbotts were domiciled in Chile, a country that, like the United States, is a
111. See 28 U.S.C.A. 1738A(c)(2)(B)(D) (2015).

112. UCCJEA 105 (2015). The only exception is when the child custody law of a foreign country violates fundamental principles of human rights.Id.
113. See 42 USC 11601 et seq. (2015).
114. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction,
art.1.
115. Id. art.2.
116. Id. art.5.
117. 560 U.S. 1 (2010).
573
party to the Convention. When the Abbotts separated, a Chilean court awarded custody of
their minor son to Ms. Abbott and access or visitation rights to Mr. Abbott. According to
Chiles Minors Law, a parent who has visitation rights also has an automatic ne exeat right,
namely a right to prevent the childs unilateral removal from Chile. Without Mr. Abbotts consent or knowledge, Ms. Abbott removed the child to Texas. The question in Abbott was whether
the fathers ne exeat right was equivalent to rights of custody within the meaning of the
Convention. If yes, the childs removal from Chile was wrongful within the meaning of the
Convention, and the child should be returned to Chile forthwith. If not, the childs removal
would still be wrongful under Chilean law, but not under the Convention, and thus the child
would not have to be returned to Chile under the Convention. Four federal circuit courts of
appeal had previously answered this question in the negative and one in the affirmative.
The Supreme Court resolved the split among the circuit courts by answering the above
question in the affirmative. The Court held that the fathers ne exeat right was equivalent to
rights of custody within the meaning of the Convention, thus according him the right to
demand the childs return to Chile. The Court reasoned that this answer was most consistent
with the Conventions purpose, which is to protect the best interest of the child and deter
parental abductions of children:
To interpret the Convention to permit an abducting parent to avoid a return remedy, even when
the other parent holds a ne exeat right, would run counter to the Conventions purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial
disputes . . . . Denying a return remedy for the violation of such rights would legitimize the very
actionremoval of the childthat the home country, through its custody order or other provision of law, sought to prevent and would allow parents to undermine the very purpose of the
Convention.118
The Court also based its answer on the text of the Convention, the views of the U.S. State
Department, and the positions taken by a few other contracting states. The Court noted that,
in interpreting a Convention, the views of other contracting states are entitled to considerable
weight, especially when the uniform international interpretation of the Convention is part
of the Conventions framework.119 The Court cited decisions from England, Scotland, Israel,
Austria, South Africa, and Australia that had interpreted the Convention in similar fashion, as
well as decisions from Canada and France that had reached a different conclusion.
In Chafin v. Chafin,120 a federal district court in Alabama found that the country of the
childs habitual residence was Scotland, and granted the mothers petition to return the child
to Scotland. The mother returned to Scotland and obtained interim custody and a preliminary
injunction prohibiting the father from removing the child from Scotland. The father appealed
the district courts order, but the Eleventh Circuit dismissed the appeal as moot, on the ground
that once a child has been returned to a foreign country, a U.S. court becomes powerless to
grant relief.
118. Id. at1996.

119. Id. (internal quotations omitted).
120. ___ U.S. ___, 133 S.Ct. 1017 (2013).
574
The Supreme Court reversed and remanded, finding that the case was not moot because
the father was seeking reversal of the district court determination that the childs habitual residence was in Scotland and, upon reversal, an order to return the child to the United States. The
Court reasoned that the question whether such a relief would be effectual given that the district
court had no authority to issue a re-return order under the Convention was a merits question,
not mootness, and the fathers prospects of success were not pertinent to the mootness inquiry.
Even if Scotland were to ignore a re-return order, the case would not be moot because the
U.S.court would continue to have personal jurisdiction over the mother and could command
her to return the child under threat of sanctions. Enforcement of the order may be uncertain
if the mother chooses to defy it, but such uncertainty does not typically render cases moot.121
In Redmond v.Redmond,122 the question was whether the childs removal or retention was
wrongful under the Hague Convention and, in turn, determining the childs habitual residence. The childs mother, a U.S. citizen, and his father, an Irish citizen, were not married,
but had a long-term relationship. The child lived with the parents in Ireland for the first eight
months of his life when the mother brought him to Illinois in 2007. At that time, the father
had no custody rights under Irish law because unmarried parents in Ireland were not legally
recognized as parents.
Three-and-a-half-year later, in 2011, an Irish court granted the fathers request for guardianship and joint custody of the child, and ordered that the child remain in Ireland. The mother
participated in these proceedings and brought the child with her. The court allowed her to take
the child back to Illinois to prepare for their return to Ireland, but only on condition that she
promise under oath to return with the child by a specified date. The mother and child returned
to Illinois and remained there. Eight months later, the father filed a Hague Convention petition in Illinois, claiming that the mother wrongfully retained the child to the United States
in breach of his custody rights recognized by the Irish court. The district court agreed and
ordered the return of the child to Ireland.
The Seventh Circuit reversed. The court found:(1)that in 2007, when the mother moved with
the child from Ireland to Illinois, she was the sole legal custodian under Irish law and had the
exclusive right to decide where the child would live; (2)thus, her removal of the child from Ireland
was not wrongful under the Convention; (3)by the time of the Irish custody order in 2011, the
childs life was firmly rooted in Illinois, which had become his habitual residence under the
Convention; and (4)because the child had his habitual residence in Illinois, his return to Illinois
was not in breach of rights of custody under the law of the State in which the child was habitually resident immediately before the removal or retention, under Article 3 of the Convention.
V I . L E G I T I M A C Y A ND F I L I AT I ON
The status of legitimacy is less important today than in the past. This is because of changing social mores and a series of Supreme Court decisions in the mid-1970s that banned discrimination against illegitimate children with regard to inheritance, support, and other rights.
121. On remand, the Eleventh Circuit affirmed the district courts judgment in favor of the mother. See
Chafin v.Chafin, 742 F.3d 934 (11th Cir.2013).
122. 724 F.3d 729 (7th Cir. 2013), rehg denied (Aug. 29,2013).
575
However, legitimacy remains legally important to the extent it establishes a presumption of

paternity. For example, a child born during marriage is legitimate and is presumed to be the
child of the mothers husband. In this case, the status of legitimacy includes the presumption of paternity; the converse is not truepaternity does not necessarily entail legitimacy.
The Restatement (Second) provides that: (1) a childs legitimacy is determined by the law of
thestate that, with respect to the particular issue, has the most significant relationship to the
child and the parent under the principles stated in 6; and that (2)a child will usually be
held legitimate if this would be his status under the law of the state where either (a)the parent
was domiciled when the childs status of legitimacy is claimed to have been created, or (b)the
child was domiciled when the parent acknowledged the child as his.123
Like most rules affecting status, this alternative-reference rule deliberately favored legitimacy,
precisely because of the (then) serious legal and social consequences of illegitimacy. Following
the elimination of most of these consequences, cases began to appear in which the plaintiffs seek
not to establish paternity, but to disprove it. One such case is Hermanson v. Hermanson,124 in
which the childs mother filed a suit in Nevada seeking a judgment that her husband at the time
of the childs birth was not the childs father. The child was born during the marriage in California
while both spouses were domiciled there. Under the laws of both states, the child was presumed
to be the child of the husband, but the presumption was irrebuttable in California and rebuttable
in Nevada, which was the mothers and the childs domicile at the time of the lawsuit. The Nevada
court held that the California law was offensive to Nevadas public policy and applied Nevadalaw.
In re Marriage of Akon125 presented a similar scenario in the sense that the children were
born before the marriage of the disputants and the mother contested the paternity asserted by
her husband. The difference from Hermanson was that in Akon the law of the forum favored
the husband. It provided that a man is presumed to be the father of a child born before his
marriage to the mother if he voluntarily asserted his paternity, and agreed to be and is named
the childs father on the childs birth certificate. The court acknowledged that the husband had
met these conditions, but, said the court, [p]resumptions are the bats of the law, flitting away
in the light of evidence and, although the statute permitted multiple fathers to exist, biology
does not.126 The court held that the evidence showed that the husband was not the father but
commended him for his concern for the children and his willingness to become their father
although under no biological obligation to do so.127
Smith v.Smith128 presented the converse pattern from Hermansonthe law of the state of
the childs birth and the mothers apparent domicile at the time (Oregon) did not impose a
presumption of paternity, but the law of the mothers and childs present domicile (Minnesota)
imposed such a presumption, which had become irrebuttable because of that states statute
of limitation. The Minnesota court found that the purposes of the Minnesota presumption
was to protect the child as well as the public by preventing a child from becoming a public
charge, and these purposes are served by applying the [Minnesota] presumption. The court
124. 887P.2d 1241 (Nev.1994).
125. 248P.3d 94 (Wash. Ct. App.2011).
126. Id.at62.
127.Id.at66.
128. 1994 WL 149445 (Minn. Ct. App. Apr. 19, 1994)(unpublished).
576
concluded that the application of Minnesota law would further the clear statutory purpose of
promoting legitimacy and Minnesotas underlying governmental interest.129
Taylor v. Taylor130 involved the same scenario. A Texas domiciliary filed an action in
Louisiana, seeking to disavow his paternity of a child conceived and born during his marriage
with the defendant. The child was born while the parents were domiciled in Texas, but after
her parents divorce, she lived in Louisiana with her mother for 10years. The disavowal action
was timely under Texas law, but not under Louisiana law. The court noted that the presumption
that the husband of the mother is the father of the child has been referred to as the strongest
presumption in the law and that Louisiana had a substantial interest, if not ultimate responsibility, in determining the parentage of this child who has been a domiciliary of this state for
most of her life.131 The court held that Louisiana law governed, barring the action.132
Berwick v.Wagner133 was a paternity dispute between same-sex partners decided before the
Supreme Court legalized same-sex marriages in Obergefell. Berwick and Wagner, both Texas
domiciliaries at all relevant times, were married in Canada in 2003 and registered as domestic
partners in California in 2005. In 2005, they entered into a gestational surrogacy agreement
with a married woman in California for her to carry a child for them. She was implanted
with embryos formed from Berwicks sperm and donated ova, which resulted in pregnancy
and the birth of a child. Before the birth, the parties obtained a California judgment of paternity:(1)declaring both Berwick and Wagner each to be a legal parent of the child, and also
declaring the surrogate and her husband not to be the childs legal parents; and (2)ordering
the hospital to list Berwick as the father and Wagner in the space provided for mother on the
birth certificate. Berwick and Wagner returned to Texas with the child and lived together until
2008, at which time Berwick terminated the relationship. Wagner sought to have the California
paternity judgment recognized in Texas. Berwick objected, arguing that under Texas law, (1)a
child can have only one legal father, and (2)surrogacy agreements were unenforceable, unless
the intended parents are married persons of the opposite sex.134
129. Id.at*2.
130. 2011 WL 1734077 (La. Ct. App.3d Cir. May 4,2011).
131. Id.at*2.
132.In State ex rel. Simons v.Simons, 336P.3d 557 (Or. Ct. App.2014), the child was born in Louisiana and,
under Louisiana law, the mothers husband at the time was statutorily presumed to be the childs legal father,
although he was not the biological father. The couple divorced in Louisiana, and the judgment named two
children of the marriage, but did not mention this child. The mother and the child remained in Louisiana,
and the defendant moved to Oregon. Eight years later, the mother, utilizing the UIFSA procedure, requested
an Oregon court to issue a child support order. An Oregon statute provided that a person whose parentage
of a child was previously determined by or pursuant to law may not plead non-parentage as a defense
in a child support proceeding. Id. at 560 (quoting Or. Rev. Stat. 110.381). The defendant argued that the
statute did not apply to him because he was never determined by a court to be the father. The court rejected
the argument, reasoning that the operation of the Louisiana statutory presumption amounted to a previous
determination by law that he was the father. Id. at 56061.The court also rejected the defendants argument that the Louisiana divorce judgment was a determination of non-parentage, simply because it did not
include this child with the couples two children. The court affirmed a support order issued by the trialcourt.
133. 2014 WL 4493470 (Tex. App. Sept. 11,2014).
134. Wagner argued that:(1)the forums public policy is not a permissible defense to the recognition of a
sister-state judgment, and, (2)in any event, this case did not implicate Texass public policy against same-
sex marriages because:(a)California law did not require intended parents under a surrogacy agreement
to be married, and (b)the paternity judgment addressed only the relationship of the two men to the child,
not their relationship to eachother.
577
Interestingly, the Texas court did not mention DOMA or discuss either the constitutionality or the strength of the public policy embodied in Texass prohibition of same-sex marriages.
Instead, the court directly rejected Berwicks argument, stating that it (1) improperly conflate[d]
the constitutional principles of full faith and credit with choice-of-law policy considerations,
and (2)ignore[d] settled Texas law holding that foreign judgments are entitled to full faith and
credit without regard to public policy concerns.135 The court held that the Constitutions Full
Faith and Credit clause mandated the recognition of the California paternity judgment.136
In re K.M.H.137 involved the legal paternity of children born through artificial insemination. The insemination took place in Missouri, and the twin children were born in Kansas. The
mother and the donor, both Kansas domiciliaries, were not married, and the donor provided
the sperm to the mother in Kansas. AKansas statute provided that [t]he donor of semen provided for use in artificial insemination of a woman other than the donors wife is treated in
law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by
the donor and the woman.138 There was no written contract between the parties. Missouri had
no such statute, and paternity could be proved by genetic test. The mother argued for the application of Kansas law, while the donor argued for the application of Missouri law. The Kansas
Supreme Court held that Kansas law applied, ruling for the mother. The court noted that to the
extent this case is viewed as a contractual dispute, Kansas courts apply the Restatement (First)
of Conflict of Laws 332 (1934), and the doctrine of lex loci contractus.139 In this case, Kansas
would be the place of the contract, if one existed. The court also noted that Kansas courts have
often leaned toward a lex fori approach, opting to apply Kansas law absent a clear showing
that another states law should apply.140 Finally, the court quoted Section 287 of the Restatement
(Second), which provides that legitimacy (which was not the issue here) is determined by the
law of the state that has the most significant relationship to the child and the parent. Putting
the three sources together, the court easily concluded that Kansas law should govern because
[T]he parties are Kansas residents. Whatever agreement that existed between the parties was
arrived at in Kansas, where they exchanged promises supported by consideration, and [the
donor] literally delivered on his promise by giving his sperm to [the mother]. The twins were
born in Kansas and reside in Kansas. The only fact tying any of the participants to Missouri is the
location of the clinic where the insemination was performed.141
Thus, Kansans had significant contacts, which made application of Kansas law not only
appropriate but also constitutional.142
135. Berwick, 2014 WL 4493470,at*5.

136. For a similar case, see Prashad v.Copeland, 685 S.E.2d 199 (Va. Ct. App.2009) (involving a custody
dispute between a surrogate mother and a same-sex couple).
137. 169P.3d 1025 (Kan.2007).
138. Kan. Stat. Ann. 38-1114(f) (2015).
139. In re M.K.H., 169P.3d at 103132.
140. Id. at1032.
141. Id.
142. Id.
578
In re Paternity and Custody of Baby Boy A143 was both a paternity and a maternity dispute. It arose out of a gestational surrogacy agreement between a man from NewYork (the
plaintiff) and his niece (the defendant), who was then studying in Minnesota. The agreement provided that the defendant agreed to have implanted in her womb the egg of an
anonymous donor fertilized with the plaintiff s sperm, carry the embryo to birth, disclaim
any parental, custody or similar rights vis--vis the child, and acknowledge plaintiff as the
childs genetic and only father. The agreement contained an Illinois choice-of-law clause.
The fertilization and implantation procedure took place in Illinois, the child was born in
Minnesota, and the plaintiff filed a paternity suit in Minnesota when the defendant reneged
on the agreement. Applying Illinois law, the trial court rendered a judgment upholding
the validity of the agreement, declaring the plaintiff as the father, and denying the defendants parental rights. The defendant appealed, arguing, inter alia, that the court should have
applied Minnesotalaw.
The Minnesota Court of Appeals affirmed the trial court, holding that Illinois law governed. The court found that, far from being coerced into signing the agreement, the defendant
had proposed the arrangement after learning of the plaintiff s initial interest, and had declined
his offer to pay for an attorney to advise her about the agreement. The court also found that the
Illinois choice-of-law clause was not an attempt to evade Minnesota law, and that Minnesota
did not have a public policy against enforcing gestational surrogacy agreements. Astatute voiding the transfer of a child by means other than adoption was inapplicable, because it only
applied to transfers by a parent and a gestational surrogate carrying a genetically unrelated
child did not qualify as a parent. Although Minnesota law was silent on surrogacy agreements,
certain statutes seemed to contemplate them by, for example, protecting the rights of individuals who use assisted-reproduction technologies, or providing a procedure for recognizing the
father of a child conceived by artificial insemination.
V I I . A D O PT I ON
In adoption cases, the American practice again merges the choice-of-law question into the
jurisdictional question. Astate has power to grant an adoption if:(1)it is the domicile of either
the adopter or the adoptee, and (2) it has personal jurisdiction over the adopter and either
the adoptee or the person having legal custody of the child.144 According to the Restatement
(Second): (1) a court applies its own law in determining whether to grant an adoption, and
(2)an adoption granted in a state that has jurisdiction will usually be given the same effect in
another state as is given to adoptions granted by its own courts.145
Relatively few cases involve genuine choice-of-law issues.146 Instead, most interstate adoption
cases involve jurisdictional disputes between biological parents, one of whom objects to the childs
143. 2007 WL 4304448 (Minn. Ct. App. Dec. 11,2007).
145. Id. 289290.
146. See, e.g., Ehrenclou v. MacDonald, 12 Cal. Rptr. 3d 411 (Cal. Ct. App. 2004), review denied (July
21, 2004) (involving the question of whether adult adoptees had the right to inherit as children of the
adopter). For a case involving foreign adoption, see Ramsey County v.Yee Lee, 770 N.W.2d 572 (Minn.
579
adoption in another state.147 Among the few exceptions are cases involving same-sex couples that
were decided before the legalization of same-sex marriages. In re Adoption of Sebastian148 was one
such case. The NewYork court held that parties to a Dutch same-sex marriage were entitled to all
benefits of spouses under NewYork law, including the right to adopt each others children. The
court acknowledged that, because the marriage was fully recognized in NewYork and the child
was born during the marriage, the child already ha[d]a recognized and protected child/parent relationship with both [spouses], arguably making adoption unnecessary and impermissibly
duplicative.149 The court also noted, however, that other states would not recognize the marriage,
thus making adoption the best way to ensure the portability of [the childs] parentage.150 The
court also found that other less expensive or less intrusive options (such as acknowledgment of
parentage or the issuance of a new birth certificate listing both spouses as parents), although
available, would also be vulnerable in other states. In contrast, a judgment of filiation or an order
granting a petition for adoption should be recognized in other states because they are judgments
falling within the scope of the Full Faith and Credit clause of the Constitution.151
Adar v.Smith152 also involved same-sex but unmarried partners. After adopting in NewYork
a child born in Louisiana, the partners requested from the Louisiana Registrar of Births the
issuance of a new birth certificate listing both as adoptive parents. The Registrar refused, citing
a Louisiana law that did not permit unmarried couples to obtain birth certificates with both
parents names. The adoptive parents filed an action against the Registrar in federal court in
Louisiana. The court held for the plaintiffs, a panel of the Fifth Circuit affirmed, but a sharply
divided Fifth Circuit sitting en banc reversed. The court held that the Full Faith and Credit
clause did not confer a federal right of action that could be enforced by injunction against
a nonjudicial actor, such as the Registrar. The court also found, in the alternative, that the
Louisiana Registrar did not deny recognition to the NewYork adoption judgment but simply
limited the plaintiffs to the enforcement remedies Louisiana law allowed. Such limitation was
permissible, the court reasoned, because enforcement mechanisms do not travel with the judgment. The court also held that the Louisiana statute did not violate the Equal Protection clause.
Five judges dissented sharply. The Supreme Court denied certiorari.
Ct. App.2009). The court held that Thai law governed the validity of a Hmong cultural adoption that took
place in Thailand, and that under that law an adoption must conform to the national law of both parents.
The court rejected on factual grounds the argument that this requirement was met because both parents
were Hmong and the adoption conformed to the requirements of Hmong custom.
147. See, e.g., Ex parte D.B., 975 So. 2d 940 (Ala. 2007); Donjuan v. McDermott, 266 P.3d 839 (Utah
2011); In re Adoption of Baby E.Z., 266P.3d 702 (Utah 2011), cert. denied, ___ U.S. ___, 132 S.Ct. 1743
(Mar. 19,2012).
148. 879 N.Y.S.2d 677 (N.Y. Sur.2009).
149. Id. at682.
150. Id.
151. The court granted the petition for adoption. The court did not have subject matter jurisdiction to
render a judgment of filiation.
152. 639 F.3d 146 (5th Cir. 2011), cert. denied, ___U.S. ___, 132 S.Ct. 400 (2011).
fifteen
Property, Marital Property,

and Successions
I . P R O PERT Y
The American law of property is rooted in the common law of England and is better understood in light of its history. American conflicts law, however, departs from the common law
distinction between real and personal property and instead adopts a distinction between
immovables and movables (chattels). Although the latter distinction generally parallels the former, the term immovable also encompasses certain interests in land such as leaseholds that
usually are regarded as personalty in other areas of the law. Whether a thing is a movable or an
immovable is determined according to the law of the situs of the thing.1
A.IMMOVABLES
With respect to immovables, the First Restatement required the application of the law of the
state where the immovable is situated (lex rei sitae), for almost all issues and virtually without
any exceptions. Thus, the law of the situs applied:(1)to the substantive and formal validity of
1. Basic bibliography for the topics discussed in this Section includes: Hay, Borchers & Symeonides,
Conflict of Laws 122984; Felix & Whitten, American Conflicts 463-504;. Weintraub, Commentary 573653;
R. Alden, Modernizing the Situs Rule for Real Property Conflicts, 65 Tex. L.Rev. 585 (1987); I.F. Baxter,
Conflicts of Law and Property, 10 McGill L.J. 1 (1964); B. Currie, Full Faith and Credit to Foreign Land
Decrees, 21 U. Chi. L.Rev. 620 (1954); C.W. Fassberg, On Time and Place in Choice of Law for Property,
51 Intl & Comp. L.Q. 385 (2002); M.S. Finch, Choice-of-Law and Property, 26 Stetson L.Rev. 257 (1996);
M. Hancock, Conceptual Devices for Avoiding the Land Taboo in Conflict of Laws:The Disadvantages of
Disingenuousness, 20 Stan. L.Rev. 1 (1967); P. Hay, The Situs Rule in European and American Conflicts
LawComparative Notes, in Hay & Hoeflich (eds.), Property Law and Legal EducationEssays in Honor
of John E. Cribbet 109 (1988);); D. Klerman, Jurisdiction, Choice of Law and Property, in Y.C. Chang
(ed.), Law and Economics of Possession 266 (2015); W.M. Richman & W.L. Reynolds, Prologomenon to
an Empirical Restatement of Conflicts, 75 Ind. L.J. 417, 42426 (2000); J.W. Singer, Property Conflicts, 54
Washburn L.J. 129 (2014); J.Y. Stern, Property, Exclusivity, and Jurisdiction, 100 Va. L.Rev. 111 (2014); S.
Symeonides, Exploring the Dismal Swamp:The Revision of Louisianas Conflicts Law on Successions,
47 La. L.Rev. 1029 (1987); R. Weintraub, An Inquiry into the Utility of Situs as a Concept in Conflicts
Analysis, 52 Cornell L.Rev. 1 (1966).
581
582
a conveyance of an interest in land,2 the effect and interpretation of the conveyance,3 and the
capacity of the grantor and the grantee;4 (2) to transfers by operation of law and acquisition
through adverse possession or prescription;5 and (3)to the validity, effect, and enforcement of
mortgages.6
Neither the Restatement (Second) nor judicial practice during and since the conflicts revolution have reduced the dominance of the situs rule to an appreciable degree. The Restatement
(Second) devotes 10 sections to immovables, which all call for the application of the law of
the situs. The sections cover the validity, effect, and construction of conveyance of an interest
in land;7 equitable conversion of interest in land;8 transfers by operation of law and acquisition through adverse possession or prescription;9 the validity, effect, and enforcement of mortgages and liens;10 and the validity and effect of powers to transfer land.11 Two of those sections
(on adverse possession and mortgages) call for the application of the local law of the situs,
whereas the remaining eight authorize the application of the law that would be applied by
the courts of the situs. The latter phrase is always accompanied by the adage that these courts
will usually apply their own local law.12 In these sections, the Restatement (Second) drafters
subordinated their general preference for an issue-by-issue analysis, opting instead for broad,
all-encompassing, and fixed rules. For example, the rule of Section 223, which applies to conveyances of an interest in land, covers formal and substantive validity, as well as the capacity of
the transferor and transferee.13
The situs rule is easy to apply and not as easy to manipulate. Immovables do not move, and
usually there is little question as to whether a thing is an immovable, or where it is situated. It
is another question, however, whether the situs rule needs to be as broad as in its American
version. One of the reasons given for the dominance and breath of the situs rule under the
traditional approach was the power rationalethe situs state has exclusive de jure and de
facto power over land situated within its borders. As Professor Beale put it, [the] laws [of the
situs] alone can apply to the land since any contrary provision [by non-situs courts or legislatures] would be given no effect by the courts and the executive officers of the state of situs.14
Statements such as these have led some courts to conclude that they do not have jurisdiction to
adjudicate disputes involving non-forum land, even when they do apply situs law. This conclusion is accurate only with regard to in rem jurisdiction, that is, jurisdiction directly to affect
2. See Restatement (First) 215,217.

3. See id. at 220,214.
4. See id. at 216,219.
5. See id. at 223224.
6. See id. at 225231.
8. See id. at225.
9. See id. at 226227.
10. See id. at 228230.
11. See id. at 231232.
12. See, e.g., id. at223.
13. Id. 223, cmts. a,cd.
14. J. Beale, A Treatise on the Conflict of Laws 93839 (vol. 2,1935).
Property, Marital Property, and Successions
583
non-forum land.15 On the other hand, a court that has in personam jurisdiction over the parties may indirectly affect non-forum land by ordering the parties to pay money or to execute
the necessary conveyances. Under the Full Faith and Credit clause of the Constitution, such
a judgment would be enforceable in the situs state,16 regardless of whether it applied situs or
non-situslaw.
In addition to lawyer convenience, the contemporary reasons for the situs rule are that it
promotes:(1)certainty and clarity of title; (2)the interests of the situs state in regulating land
situated within its borders; and (3) interstate and international uniformity of result. Indeed,
the situs state has an interest in ensuring the certainty and integrity of its recording system,
protecting good faith purchasers who rely upon the system, and facilitating the task of the title
examiner who should not have to interpret foreign laws. The situs state also has an interest
in ensuring the most efficient, productive, commercially sound, and environmentally prudent
utilization of land within its borders and in prescribing rules for adverse possession, boundary
disputes, easements, rules against perpetuities, and zoning, or environmental regulations.17 All
of these are good reasons to have a situs rule. However, the question is whether it is necessary
for such a rule to cover all issues, such as the capacity of the owner to dispose of the immovable, the capacity or worthiness of an heir or legatee, the interests of the surviving spouse, the
order of succession, or the formal validity of a will or a transaction involving land. We revisit
this question in the sections on marital property and successions, where the dominance and
breadth of the situs rule are most objectionable. For now, let us keep in mind Professor Singers
astute observations:
The idea that the situs rule promotes uniformity of result, predictability of outcome, and clarity of title for property sounds good if you say it fast. In the real world, we confront greater
complexity than imagined in this philosophy. The situs rule is a good one in many cases, but in
other cases it promotes perverse or destructive results. And in still other cases, we find important
value conflicts between the interests of the situs state and the interests of the state where the
parties are domiciled or their contractual relationship is centered. Those cases also present conflicts between the rights of the parties who claim the protection of the law of different jurisdictions. Adjudicating such cases requires choices about which values should prevail, which interests
should take precedence, and whose rights should be vindicated. Only if we confront those real
conflicts will we make reasonable and fair choices of applicablelaw.18
15. See, e.g., Clarke v.Clarke, 178 U.S. 186 (1900); Fall v.Eastin, 215 U.S. 1 (1909).
16. See Durfee v.Duke, 375 U.S. 106 (1963); Eastin, 215 U.S.1).
17. See J.W. Singer, Property Conflicts, 54 Washburn L.J. 129, 129 (2014) (Although often maligned,
the situs rule makes perfect sense for whole classes of cases. All other things being equal, there is simply
no reason to deviate from situs law when the issue involves zoning, servitudes, estates in land, nuisance,
mortgages and other liens, and trespass. In each of these cases, the state where the property is located has
strong interests in regulating its use, determining what estates in land are recognized and what encumbrances can be enforced, and what exceptions exist to the right to exclude non-owners. Owners of land
have the right to the benefits of local law and cannot claim exemption from its burdens when the law at
issue concerns the use of land and the bundles of rights that the situs will recognize.).
18. Id. at160.
584
B.MOVABLES
1. In General
Despite its shortcomings, the situs rule has one undeniable advantage with regard to immovables:it is certain and predictable. The same is not true with regard to movables, which may
move or be moved from one state to another. Thus, any choice-of-law rule that is based on situs
as the exclusive connecting factor must confront the possibility that there may be more than
one situs, a phenomenon descriptively called conflit mobile. Rigid adherence to the law of the
first situs would ignore the legitimate interest of the second situs in protecting persons who
acquire rights in justifiable reliance upon the law of the second situs. Conversely, rigid adherence to the law of the second situs would lead to the divestiture of rights created while the thing
was situated in the first situs. The conflict between the laws of the two situses must be resolved
in a way that takes into account the legitimate interests of each situs, without frustrating justified party expectations or running afoul of the constitutionally sanctioned principle that the
mere movement of a thing from one state to another, without more, should not alter existing
rights in thatthing.
Aware of these potential complexities and uncertainties, the drafters of the Restatement
(Second) have considerably softened the inexorable situs rule of the First Restatement. The
Restatement (Second) provides that the validity and effect of a conveyance of an interest in a
chattel are determined by the law of the state that, with respect to the particular issue, has
the most significant relationship to the parties, the chattel, and the conveyance under the
principles stated in 6.19 The next sentence makes this flexible approach only slightly more
specific by stating that, in the absence of an effective choice of law by the parties, greater
weight will usually be given to the location of the chattel at the time of the conveyance than
to any other contact.20 However, this rule applies only as between the parties to the conveyance.21 Aseparate Restatement section, applicable to third parties, points to situs law in
slightly less equivocal terms. It provides that the effect of a conveyance upon a preexisting
interest in a chattel of a person who was not a party to the conveyance will usually be determined by the law that would be applied by the courts of the state where the chattel was at
the time of the conveyance, and that these courts would usually apply their own local law.22
The Restatement abandons its equivocation only in cases of acquisition by adverse possession
or prescription. It provides that such acquisition, and the nature of the acquired interest, are
determined by the law of the state where the chattel was at the time the acquisition is claimed
to have taken place.23
Finally, the Restatement addresses the conflit mobile problem by providing that interests
in a chattel are not affected by the mere removal of the chattel to another state, but that

20. Id.
21. Id.
22. Id. at245.
23. Id. at246.
585
such interests may be affected by dealings with the chattel in the other state.24 Although the
Restatement does not explain what exactly can affect such interests, its adoption of the aforementioned distinction between the parties to the conveyance and third parties, and its flexible
phrasing of its choice-of-law rules can lead to results rationally accommodating both the interests of the two situses and the circumstances of mostcases.
The Restatement (Second) contains several additional sections covering intangibles, as well
as security interests in movables. Most of these sections are displaced by statutes in the various
states, including especially the Uniform Commercial Code (U.C.C.),25 which has been adopted
in all states of the United States. Even a brief description of these fairly complex and detailed
rules is beyond the scope of this volume. Suffice it to say that, in contrast to the Restatement
and the previous version of the U.C.C., the current version (effective 2001)shifts the emphasis
from the situs nexus to the place where the debtor is located, which it defines as the debtors
residence for individual debtors, and the place of business for organizations.26
2. Stolen Movables:Antiquities or Artwork

a.The Problem and theChallenge
The fact that the term elginism was coined in the late twentieth century, and is used in the
twenty-first century to describe the looting of antiquities and other cultural property,27 is sad
proof that the infamous Lord Elgin has many contemporary emulators. Indeed, such looting
may be more frequent today than in the nineteenth century, if only because it is fueled by large
sums of money in both the black market and the open markets of Western Europe, North
America, and Japan. According to some estimates, trade in stolen art and antiquities is the
second biggest international criminal activity after narcotics,28 netting from one to ten billion
dollars annually.29 A small indication of this phenomenon is the high number of multistate
cases involving the ownership of antiquities or artwork have come before American courts
24. Id. at 247. For a recent case following this provision, see Lurie v. Blackwell, 51 P.3d 846 (Wyo.
2002)(holding that neither the chattels removal from Missouri to Wyoming nor the owners subsequent
movement to Montana altered his rights in a chattel he acquired in Missouri as tenant by the entirety,
even though neither Wyoming nor Montana recognized tenancies by the entirety).
25. See U.C.C. 9-3019-308 (2001).
26. U.C.C. 9-307(b) (2015). If the organization has more than one place of business, the debtor is
located at its chief executive office. In all cases, however, if the debtor is located in a jurisdiction that does
not require information concerning the existence of a nonpossessory security interest to be made generally available in a registration system as a condition or result of the security interests obtaining priority
over the rights of a lien creditor, then the debtor is deemed located in the District of Columbia. Id. at
9-307(c).
27. See Elginism, http://www.elginism.com/20110124/3488/ (last visited Aug. 19,2015).
28. S. Drum, Comment, DeWeerth v. Baldinger: Making New York a Haven for Stolen Art?, 64 N.Y.U.
L.Rev. 909, 909 (1989).
29.For other estimates involving stolen artwork or antiquities, see M. Kunitz, Switzerland and the
International Trade in Art and Antiquities, 21 Nw. J.Intl L.& Bus. 519 n.2 (2001); J. Moore, Enforcing
Foreign Ownership Claims in the Antiquities Market, 97 Yale L.J. 466, 468 n.12 (1988); J. Nafziger,
International Penal Aspects of Protecting Cultural Property, 19 Intl L. 835 (1985). But see J. Darraby, Art,
586
in recent years,30 as well as the voluminous literature on this subject, consisting of numerous
books31 and articles.32
The fact that most of this illegal trade takes place across international boundaries should
occupy the attention of not only national and international law enforcement authorities, but also
Artifact, and Architecture Law 6:117 (2004) (Illicit art is big business and makes good press; what the
real numbers are in dollar terms is not known, and purported estimates are simply speculations.).
30. In addition to the cases discussed below, see, e.g., Altmann v.Republic of Austria, 317 F.3d 954 (9th
Cir. 2002), amended on denial of rehg, 327 F.3d 1246 (9th Cir. 2003), cert. granted in part, 539 U.S. 987
(2003), and aff d on other grounds, 541 U.S. 677 (2004); von Saher v. Norton Simon Museum of Art at
Pasadena, 754 F.3d 712 (9th Cir. 2014), cert. denied, ___U.S. ___, 135 S.Ct. 1158 (2015); Mucha v.King,
792 F.2d 602 (7th Cir. 1986); Jeanneret v. Vichey, 693 F.2d 259 (2d Cir. 1982); Kunstsammlungen zu
Weimar v.Elicofon, 536 F.Supp.829 (E.D.N.Y. 1981), aff d, 678 F.2d 1150 (2d Cir. 1982); Greek Orthodox
Patriarchate of Jerusalem v. Christies, Inc., 1999 WL 673347 (S.D.N.Y. 1999); Rosenberg v. Seattle Art
Museum, 42 F.Supp.2d 1029 (W.D. Wash. 1999), motion to dismiss granted, 70 F.Supp.2d 1163 (W.D.
Wash. 1999); Republic of Turkey v. OKS Partners, 146 F.R.D. 24 (D. Mass. 1993); Republic of Turkey
v. Metropolitan Museum of Art, 762 F. Supp. 44 (S.D.N.Y. 1990); Government of Peru v. Johnson, 720
F.Supp.810 (C.D. Cal. 1989), aff d, 933 F.2d 1013 (9th Cir. 1991); Netherlands v.Woodner, No. 89 Civ.
7425 (S.D.N.Y. 1989); DeWeerth v. Baldinger, 658 F. Supp. 688 (S.D.N.Y. 1987), revd on other grounds,
836 F.2d 103 (2d Cir. 1987); Stroganoff-Scherbatoff v.Weldon, 420 F.Supp 18 (S.D.N.Y. 1976); Republic
of Lebanon v. Sothebys, 561 N.Y.S.2d 566 (N.Y. App. Div. 1990); Menzel v. List, 253 N.Y.S.2d 43 (N.Y.
App. Div. 1964), on remand, 267 N.Y.S.2d 608 (1966), modified on other grounds, 279 N.Y.S.2d 608 (N.Y.
1967), modification revd, 246 N.E.2d 742 (1969). See also, e.g., United States v.Schultz, 333 F.3d 393 (2d
Cir. 2003), cert. denied, 540 U.S. 1106 (2004); United States v.Antique Platter of Gold, 184 F.3d 131 (2d
Cir. 1999), cert. denied, 529 U.S. 1136 (2000); United States v.McClain, 545 F.2d 988 (5th Cir. 1977), rehg
denied, 551 F.2d 52 (5th Cir. 1977), revd in part, aff d in part, 593 F.2d 658 (5th Cir. 1979), cert denied,
444 U.S. 918 (1979); United States v.Hollinshead, 495 F.2d 1154 (9th Cir. 1974); United States v.Swetnam,
Indictment CR 88-914 RG (C.D. Cal. Nov.1988).
31. See, e.g., P. Gerstenblith, Art, Cultural Heritage, and the Law: Cases and Materials (2012); J.A.
Nafziger & A.M. Nicgorski, Cultural Heritage Issues:The Legacy of Conquest, Colonization and Commerce
(2009); C. Roodt, Private International Law, Art and Cultural Heritage (2015); B. Schnenberger, The
Restitution of Cultural Assets (2009); I. Stamatoudi, Cultural Property Law and Restitution:ACommentary
to International Conventions and European Union Law (2011); J. Ulph & I. Smith, The Illicit Trade in Art
and Antiquities (2012); M. Wantuch-Thole, The Cross-Border Enforcement and Justiciability of Claims to
Misappropriated Cultural Objects (2014).
32. In addition to articles cited later in this section, see, e.g., G. Carducci, The Growing Complexity
of International Art Law: Conflict of Laws, Uniform Law, Mandatory Rules, UNSC Resolutions and
EU Regulations, in B.T. Hoffman (ed.), Art and Cultural Heritage: Law, Policy and Practice 68 (2006);
D.L. Carey-Miller, D.W. Meyers A.L. Cowe, Restitution of Art and Cultural Objects:AReassessment of
the Role of Limitation, 6 Art Antiquity & Law 1 (2001); J.M., Carruthers, Cultural Property and Law
An International Private Law Perspective, 3 Jurid. Rev. 127 (2001); K. Chamberlain., The Recognition
and Enforcement of Foreign Cultural Heritage Laws, 13 Art Antiquity & Law 161 (2008); D. Fincham,
Fraud on Our Heritage: Towards a Rigorous Standard for the Good Faith Acquisition of Antiquities,
37 Syracuse J. Intl L. & Comm. 145 (2010); F. Francioni, Beyond State Sovereignty: The Protection of
Cultural Heritage as a Shared Interest of Humanity, 25 Mich. J. Intl L. 1209 (2003); P. Gerstenblith,
Schultz and Barakat: Universal Recognition of National Ownership of Antiquities, 14 Art Antiquity &
Law 21 (2009); P. Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in
the United States, 75 B.U. L. Rev. 559 (1995); P. Gerstenblith, The Public Interest in the Restitution of
Cultural Objects, 6 Conn. J.Int. L. 197 (2001); S.F. Grover, Note, The Need for Civil-Law Nations to Adopt
Discovery Rules in Art Replevin Actions:AComparative Study, 70 Tex. L.Rev. 1431 (1992); A. Hawkins,
R.A. Rothman & D.B. Goldstein, A Tale of Two Innocents:Creating an Equitable Balance between the
587
of international law, both public and private. In recent years, public international law has produced
several conventions and other international instruments for the protection of antiquities and other
cultural property, under the auspices of the Hague Conference,33 UNESCO,34 Unidroit,35 and
other international organizations.36 Unfortunately, these conventions are not always helpful, either
because they apply only prospectively, or because the market countries have not ratified them. In
those cases, conflicts law comes into play, especially when the owner of the looted property sues its
current possessor, usually in the market country. One of the critical questions in the ensuing litigation is which countrys law should the court apply for determining the ownership of the property and the appropriate relief for its wrongful removal. This section discusses four representative
cases, one of which involved antiquities and the other three artwork. All four cases applied the law
of the forum. The question discussed here is whether this is the proper choice oflaw.
Rights of Former Owners and Good Faith Purchasers of Stolen Art, 64 Fordham L.Rev. 49 (1995); J.E.
Kastenberg, Assessing the Evolution and Available Actions for Recovery in Cultural Property Cases, 6
DePaul-LCA J.Art & Ent. L.& Poly 39 (1995); L.M. Kaye, Art Wars:The Repatriation Battle, 31 N.Y.U.
J. Intl L. & Pol. 79 (1998); W.W. Kowalski Restitution of Works of Art Pursuant to Private and Public
International Law, 288 Recueil des Cours 212 (2002); M. Lee, A Choice of Law Dilemma: The Conflict
and Reconciliation of Laws Governing Cross-Border Transfers of Stolen Art, 7 Cardozo Pub. L.Poly &
Ethics J. 719 (2009); P.L. Margules, International Art Theft and the Illegal Import and Export of Cultural
Property: A Study of Relevant Values Legislation, and Solutions, 15 Suffolk Transnatl L.J. 609 (1992);
J.A.R. Nafziger, The Protection and Repatriation of Indigenous Cultural Heritage in the United States,
in C Bell & R.K. Paterson (eds.), Protection of First Nations Cultural Heritage:Laws, Policy, and Reform
110 (2009); W.G. Pearlstein, Claims for the Repatriation of Cultural Property:Prospects for a Managed
Antiquities Market, 28 Law & Poly Intl Bus. 123 (1996); T.W. Pecoraro, Choice of Law in Litigation
to Recover National Cultural Property: Efforts at Harmonization in Private International Law, 31 Va.
J. Intl L. 1 (1990); L.F. Pinkerton, Due Diligence in Fine Art Transactions, 22 Case W. Res. J. Intl L. 1
(1990); E.A., Posner, The International Protection of Cultural Property: Some Skeptical Observations,
8 Chi. J. Intl L. 213 (2007); L.V. Prott, Problems of Private International Law for the Protection of the
Cultural Heritage, 217 Recueil des Cours 215 (1989); M.A. Sherlock, Comment, ACombined Discovery
Rule and Demand and Refusal Rule for NewYork:The Need for Equitable Consistency in International
Cases of Recovery of Stolen Art and Cultural Property, 8 Tul. J. Intl & Comp. L. 483 (2000); K. Siehr,
International Art Trade and the Law, 243 Recueil des Cours 9 (1993); K. Siehr, Globalization and National
Culture:Recent Trends Towards a Liberal Exchange of Cultural Objects, 38 Vand. J.Transnatl L. 1067,
1073 (2005); S. Symeonides, A Choice-of-Law Rule for Conflicts Involving Stolen Cultural Property, 38
Vand. J.Transnatl L. 1177 (2005).
33. See the Hague Convention on the Protection of Cultural Property during Armed Conflict of 14 May
1954, available at http://portal.unesco.org/en/ev.php-URL_ID=13637&URL_DO=DO_TOPIC&URL_
SECTION=201.html; First Protocol of 14 May 1954, at id.; Second Protocol of 26 March 1999,atid.
34. See Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer
of Ownership of Cultural Property of 14 November 1970, available at http://portal.unesco.org/en/ev.php-
URL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html; Convention Concerning the
Protection of the World Cultural and Natural Heritage of 16 November 1972, available at http://portal.
unesco.org/en/ev.php-URL_ID= 13055&URL_DO=DO_TOPIC &URL_SECTION=201.html.
35. See the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 1995, available at
http://www.unidroit.org/english/conventions/1995culturalproperty/main.htm.
36. See the 1977 Geneva Protocol I, Additional to the Geneva Conventions of 12 August 1949, and Relating
to the Protection of Victims of International Armed Conflict, available at http://www.icrc.org/ihl.nsf/
7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc125641e0052b079; and 1977 Geneva Protocol
II, Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of
Non-international Armed Conflict, available at http://www.icrc.org/ihl.nsf/FULL/475?OpenDocument.
588
b.Antiquities
Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc.37 is a
typical and now well-known case involving stolen antiquities. Autocephalous involved four
sixth-century mosaics embedded in the hallowed sanctuary of an early Christian church in
the Republic of Cyprus, in a region that Turkey has occupied since 1974.38 In the late 1970s,
Dikman, a Turkish national, illegally removed the mosaics from the church and transported
them through Turkey to Germany, where he hid them for about a decade. In July 1988, following
a sale agreement negotiated through intermediaries in a Dutch restaurant, Dikman transported
the mosaics to the free-port area of the Geneva airport, and delivered them to the buyer upon
receipt of $350,000 in dollar bills contained in paper bags. The buyerPeg Goldberg, an Indiana
art dealerpromptly shipped the mosaics to Indiana and, a few weeks later, offered to sell them
to the Getty Museum in California for approximately $20million. The museums curator, who
was familiar with these internationally known mosaics, declined the offer and promptly notified
the Republic of Cyprus. The Republic and the Church of Cyprus offered to reimburse Goldberg
for the purchase price, in exchange for her surrendering the mosaics. Following Goldbergs
refusal, the Republic and the Church filed suit in federal district court in Indiana in March1989.
As is typical in cases of trans-border trade in stolen property, Autocephalous implicated
the laws of several jurisdictions:Cyprus, Switzerland, and Indiana. These laws differed in significant respects. Under the law of Cyprus, antiquities and things dedicated to worship are
designated as out of commerce and may not be acquired by a private person whether through
sale, prescription, or otherwise. Thus, if the Church of Cyprus could establish ownership, the
Church could not lose that ownership under Cypriot law due to any facts or transactions the
defendant invoked. The Church was able to prove such ownership.39 Under Swiss law, if read
in the light most favorable to the defendant,40 the defendant could prevail if she purchased the
mosaics in good faith and the plaintiffs action was filed more than five years from the date of
the theft. Under Indiana law, a thief could not acquire, and thus could not convey, ownership
of the stolen property. Nevertheless, the owner could not recover the property if the pertinent
action was filed six (6)years after the action has accrued.41 The critical question was determining when the action accrued.
37. 717 F.Supp.1374 (S.D. Ind. 1989), aff d, 917 F.2d 278 (7th Cir. 1990). Besides being a Cypriot, the author
served as pro bono consultant to plaintiffs. He claims no impartiality, either with regard to the intrinsic
merits of the plaintiffs case or with regard to the fundamental right of countries such as Cyprus to protect their cultural heritage. For a discussion of this case, see P. Farrell, Foreign RelationsUnrecognized
Foreign StatesTitle to Church Mosaics Unimpaired by Confiscatory Decrees of Unrecognized State,
Autocephalous Greek Orthodox Church of Cyprus v.Goldberg and Feldman Fine Arts, Inc., 15 Suffolk
Transnatl L.J. 790 (1992); S.L. Foutty, Autocephalous Greek Orthodox Church of Cyprus v.Goldberg and
Feldman Fine Arts, Inc.:Entrenchment of the Due Diligence Requirement in Replevin Actions for Stone
Art, 43 Vand. L.Rev. 1839 (1990); K. Highet etal., Cultural PropertyRecovery of Stolen Art Works
Choice of LawRecognition of Governments, 86 Am. J.Intl L. 128 (1992).
38. That part was not accessible to the Republic or the Church of Cyprus until the first decade of the
twenty-first century.
39. See Autocephalous, 717 F.Supp. at1397.
40. But see S. Symeonides, On the Side of the Angels: Choice of Law and Stolen Cultural Property, in
Private Law in the International ArenaLiber Amicorum Kurt Siehr, 649, 75860 (J. Basedow etal. eds.,
2000) (arguing that Swiss law may not have been as favorable to the defendant as the court assumed).
41. Autocephalous, 717 F.Supp. at1385.
589
The court ultimately held that Indiana law should govern because Indiana had the most
significant contacts42 or the more significant relationship.43 The defendant argued, however,
that the plaintiffs action to recover the mosaics was untimely because it was filed more than six
years from the time of the theft, which occurred in the mid-to-late 1970s. The court rejected
the argument, holding that the action did not accrue, and thus the statute of limitations did
not begin to run until the plaintiffs, exercising due diligence, knew or should have known the
identity of the possessor of the mosaics (the discovery rule).44 After describing the plaintiffs
diligent but unsuccessful efforts to locate the mosaics as soon as they learned of the theft, the
court held that the plaintiffs could not have discovered the identity of the mosaics possessor
until Goldberg attempted to sell them to the Getty Museum in late 1988.45 The court also held
in the alternative that, even if Swiss law applied, the defendant could not prevail because she
clearly was not in good faith when she purchased the mosaics.46 Therefore, under either Indiana
or Swiss law, the plaintiffs were entitled to recover the mosaics, and the court so ordered.
c.Artistic Property
Museum of Fine Arts, Boston v.Seger-Thomschitz,47 Dunbar v.Seger-Thomschitz,48 and Bakalar
v.Vavra49 involved actions to recover paintings owned by Austrian Jewish families, which were
lost during the Nazi era.50 All three cases applied the law of the forum state. In the first two
cases, that state was also the domicile of the current possessor and the final situs of the painting. The claimant lost in both cases, the first under Massachusettss statute of limitation, and
42. Id. at1394.

43. Id. at 1376,1394.
44. See id. at 138687, 138891.
45. See id. at 138891. Moreover, the court held that, even if the statute of limitations commenced running at an earlier time, the doctrine of fraudulent concealment tolled, or suspended, the running of the
statute for the 10-year period when the mosaics were hidden in Germany. See id. at 138788, 139193.
46. The court discussed pointedly and at length the suspicious circumstances under which the defendant bought the mosaics. See id. at 140003. The court concluded by quoting from the testimony of an
expert witness: The Court cannot improve on Dr. Vikans summation of the suspicious circumstances
surrounding this sale:All the red flags are up, all the red lights are on, all the sirens are blaring. Id. at
1402. The court also found that the defendant failed to undertake even a minimally prudent inquiry into
the sellers title. See id. at 140304.
47. 623 F.3d 1 (1st Cir. 2010), cert. denied 562 U.S. 1271 (2011), rehg denied ___ U.S. ___, 131 S.Ct. 2176
(2011) (decided under Massachusetts conflictslaw).
48. 638 F. Supp. 2d 659 (E.D. La. 2009), aff d, 615 F.3d 574 (5th Cir. 2010), cert. denied 562 U.S. 1221
(2011).
49. 619 F.3d 136 (2d Cir. 2010), on remand 819 F. Supp. 2d 293 (S.D.N.Y. 2011), aff d 500 Fed. Appx.
6 (2nd Cir. 2012), cert. denied ___U.S. ___, 133 S.Ct. 2038 (2013) (decided under NewYork conflicts
law). For discussion of this case, see, e.g., L. Frey, Bakalar v Vavra and the Art of Conflicts Analysis in
NewYork:Framing a Choice of Law Approach for Moveable Property, 112 Colum. L.Rev. 1055 (2012);
J. Hunn, Bridging the Swamp:Curries Interest Analysis as a Principled Solution to the Conflict of Laws
Problem in Bakalar and Other Stolen Art Cases, 50 Tex. Intl L.J. 169 (2015).
50. From the numerous writings on the looting of Jewish-owned art by the Nazis, see, e.g., A. Beker (ed.),
The Plunder of Jewish Property during the Holocaust:Confronting European History (2001); J.M. Anglin,
Crossroads in the Great Race:Moving Beyond the International Race to Judgment in Disputes over Artwork
590
the second under Louisianas acquisitive prescription law. In the third case, Bakalar, the claimant prevailed, at least temporarily, under NewYorks demand-and-refusalrule.
The first two cases, Museum of Fine Arts (MFA) and Dunbar, involved the same claimant and
paintings by the same artistthe famous Austrian expressionist Oskar Kokoschkawhich originally belonged to Dr.Reichel, an Austrian Jew. After the Nazi occupation of Austria, the Nazis took,
directly or indirectly, many of Dr.Reichels other paintings, but apparently these two paintings had a
different fate. Dr.Reichel sent them to a friend of his, Otto Kallir, who had previously escaped from
Vienna to Paris, and who, according to some evidence, paid Reichel a small sum in return. Kallir
then moved to NewYork and set up a gallery there, from which he sold the paintings. The current
possessors of the paintings traced their title to those sales. The claimant was Dr.Reichels soleheir.
In the MFA case, the parties did not invoke the law of Austria or NewYork. Instead, they
agreed that the case should be decided under the statute of limitation of Massachusetts, the
forum state, which provided for a three-year period for a replevin action, subject to a discovery
rule. The disagreement centered on when the limitation period commenced. The court held
that the limitation period commenced in 2003, when a Vienna museum contacted the claimant about returning to her four other paintings belonging to Dr.Reichel. The court held that,
because the claimant did not send her demand letter to the MFA until 2007, her claim was
time-barred. The court made clear that it was not passing any judgment on the validity of the
transfer to Kallir or any subsequent transfers.
The second case, Dunbar, reached the same result against the same claimant of another
Kokoschka painting, although technically the decision was based on the law of acquisitive
prescription (adverse possession) rather than liberative prescription (statute of limitation), as
in the MFA case. The court found that the current possessor had possessed the painting in
Louisiana publicly and openly for more than 10years and thus acquired ownership of it under
Louisianas law of acquisitive prescription. This meant that the claimant would have lost even if
she had been able to prove her previous ownership and even if she had no way of knowing of
the public and open possession of the painting in faraway Louisiana. As discussed later, the
application of the law of the final situs of the paintings (usually the forum state) rather than
the situs of origin is problematic. Although in this case the claimant did not invoke Austrian or
NewYork law, in other cases the uncritical application of the law of the final situs can provide
a safe haven for art thieves or their transferees.
In the third case, Bakalar v. Vavra, the painting (a drawing by Egon Schiele) belonged
to Franz Grunbaum, another Austrian Jew who perished in the Holocaust. His heirs argued
that the drawing was the object of a Nazi-forced sale, common during the Nazi period in
Austria. In 1956, a Swiss art gallery purchased the drawing and, later that year, shipped it to
Otto Kallirs New York gallery (the same gallery that sold the two paintings involved in the
MFA and Dunbar cases). Kallir sold the drawing to the current possessor, Bakalar, in 1963.
Bakalar sued Grunbaums heirs in New York, seeking a declaratory judgment regarding the
ownership of the drawing.
The district court concluded that the ownership question should be answered by the law
of Switzerland, the situs of the drawing when, in the courts opinion, the critical transaction
occurred. Under Swiss law, as the court understood it, the buyer of a movable thing acquires
its ownership if the buyer bought it in good faith (which is presumed by law) and if the previous owner does not reclaim it within five years from the theft. The court held that, under this
law, the Swiss gallery acquired ownership of the drawing, and thus the subsequent transfers to
Kallirs NewYork gallery and then to the present possessor conveyed validtitle.
591
The Second Circuit reversed, holding that under NewYorks choice-of-law precedents, the
applicable substantive law was not the law of the situs at the time of the sale, but rather the law of
the state of the greatest interest in the litigation,51 which the court held was NewYork. Under
NewYork law, the Grunbaum heirs did not lose their ownership of the drawing because:(1)a
thief cannot pass good title;52 (2)artwork stolen during World War II still belongs to the original owner, even if there have been several subsequent buyers and even if each of those buyers
was completely unaware that she was buying stolen goods;53 (3)the burden of proving that the
painting was not stolen properly rests with the possessor; and (4)the owners replevin action
is not subject to a statute of limitation (or a discovery rule and due-diligence sub-rule, which
NewYork expressly rejected), but rather to the demand-and-refusal rule.54
In comparing the interests of NewYork to those of Switzerland, the court noted NewYorks
overarching concern that NewYork not become a marketplace for stolen goods and, in particular, for stolen artwork.55 The court concluded that in this case NewYork had a compelling interest in the application of its law because a stolen piece of artwork was delivered
in New York to a New York art gallery, which sold it in New York and [t]hese events and
omissions made NewYork a marketplace for stolen goods and, more particularly, for stolen
artwork.56
In contrast, said the court, this case d[id] not implicate any Swiss interest simply because
the Drawing passed through there [and was] resold within five months to a NewYork
art gallery.57 While the application of NewYork law would not have any adverse effect on
any Swiss citizen or Swiss interest, it will have the beneficial effect of caus[ing] NewYork
and Other Chattels, 45 Harv. Intl L.J. 239 (2004); B. Demarsin, Lets Not Talk about Terezn:Restitution
of Nazi Era Looted Art and the Tenuousness of Public International Law, 37 Brooklyn J.Intl L. 117 (2011);
R.J. Dowd, Nazi Looted Art and Cocaine:When Museum Directors Take It, Call the Cops, 14 Rutgers J.L.
& Religion 529 (2013); H. Feliciano, The Great Culture Robbery:The Plunder of Jewish-Owned Art, in A
Beker (ed.), The Plunder of Jewish Property during the Holocaust:Confronting European History 164 (2001);
L.M. Kaye, Avoidance and Resolution of Cultural Heritage Disputes:Recovery of Art Looted during the
Holocaust, Willamette J.Intl L.& Disp. Resol. 243 (2006); J.A. Kreder, The New Battleground of Museum
Ethics and Holocaust-Era Claims: Technicalities Trumping Justice or Responsible Stewardship for the
Public Trust?, Oregon L.Rev. 37 (2009); J.A. Kreder, Reconciling Individual and Group Justice with the
Need for Repose in Nazi-Looted Art Disputes:Creation of an International Tribunal, 73 Brooklyn L.Rev.
155 (2007); J.A. Kreder, Fighting Corruption of the Historical Record:Nazi-Looted Art Litigation, 61 U.
Kan. L.Rev. 75 (2012); R.E. Lerner, The Nazi Art Theft Problem and the Role of the Museum:AProposed
Solution to Disputes over Title, 31 N.Y.U. J. Intl L. & Poly 15 (1998); T. ODonnell, The Restitution of
Holocaust Looted Art and Transitional Justice:The Perfect Storm or the Raft of Medusa?, 22 Eur. J.Int.
L. 49 (2011); H.N. Spiegler, Recovering Nazi-Looted Art:Report from the Front Lines, 16 Conn. J.Intl L.
297 (2001); M.I. Turner, The Innocent Buyer of Art Looted during World War II, 32 Vand. J.Transnatl L.
1511 (1999); B.J. Tyler, The Stolen Museum:Have United States Art Museums Become Inadvertent Fences
for Stolen Art Works Looted by the Nazis in World War II?, 30 Rutgers L.J. 441 (1999).
51. Bakalar, 619 F.3d at144.
52. Id. at140.
53. Id. at 141 (internal quotation omitted).
54. See id. at 14142.
55. Id. at141.
56. Id. at144.
57. Bakalar, 619 F.3d at144.
592
purchasers of artwork to take greater care in assuring themselves of the legitimate provenance
of their purchase.58 This, in turn, may adversely affect the extra-territorial sale of artwork by
Swiss galleries, but [t]he tenuous interest of Switzerland created by these circumstances
must yield to the significantly greater interest of NewYork.59
The court also considered Austrias interests and found them parallel to NewYorks interests. The Austrian Nullification Act provided that Nazi-period forced-sales, like the one in this
case, were null and void. Acompanion statute enacted in 1947 allowed a 10-year period within
which the owners could recover their property. Although this period expired in 1956 (which
was also the year of the Swiss sale in this case), the Supreme Court of Austria held in 2008 that
the principles underlying the Nullification Act had always been an integral part of the general
principles of the Austrian Civil Code, which declares sales under duress to be null and void.
The Second Circuit reasoned that the application of NewYork law in this case was consistent
with those general principles, and that, although Austria may have allowed the above statute to
elapse in order to protect Austrian citizens, this case did not involve a claim against any citizen
of Austria. Thus, Austria had no competing interest in the circumstances presented here.60
d. Multiple Situses and theConflitMobile

All four cases discussed here involved at least three states-situses:(1)the situs of origin (Cyprus
in one case and Austria in the other three); (2) an intermediary situs where a critical transaction occurred (Switzerland in Autocephalous and Bakalar, and New York in the other two
cases); and (3) the situs at the time of the lawsuit (Indiana, Massachusetts, Louisiana, and
NewYork). All four cases applied the law of the last situs, which was also the forum state and
the domicile of the current possessor. In two of the cases (MFA and Dunbar), the courts choice
of law was uncontested. In Autocephalous, the court held in the alternative that the application
of the law of the intermediary situs would have led to the same result as the law of the last situs.
In Bakalar, the court rejected the application of the law of the intermediary situs but held that
the law of the first situs would have produced the same result as the lastsitus.
From a systemic perspective, the non-application of the law of the situs of origin is problematic in all cases in which that law protects the owner while the law of a subsequent situs
does not. In such cases, the resulting conflict is a veritable true conflict, which implicates not
only the private interests of the involved parties, but also the public interests of their respective
home-states, as well as more general societal and cultural values.61 The automatic application
of the law of the last situs can operate to provide a safe haven for thieves of cultural or artistic
property and their transferees. The contention of this section is that a proper choice-of-law
58. Id. at14445
59. Id. at145.
60. Id. at 146. However, this was not the end of the case. The court remanded to the district court for
further proceedings under New York law. The district court found that the drawing was not looted by
the Nazis, and that the heirs right to reclaim it was barred by laches. The court rendered a judgment for
Bakalar, and the Second Circuit affirmed. See 819 F.Supp.2d 293 (S.D.N.Y. 2011), aff d 500 Fed. Appx. 6
(2d Cir. 2012), cert. denied ___U.S. ___, 133 S.Ct. 2038 (2013).
61. Professor Erik Jayme identified five interests implicated in conflicts involving artworks: (1) interests of private parties, including the owner of the work and the artist who created it; (2) interests of
the involved states; (3) interest of the art market; (4) the global interest of international civil society;
593
analysis should begin with a strong presumption in favor of the law of the situs of origin. It
is submitted that the rule proposed below is a good vehicle for such an analysis. For the sake
of convenience, the rule is limited to cultural property, but it can apply by analogy to artistic
property, and perhaps other stolen property.
e.AProposedRule
The proposed rule is as follows:
1. Except as otherwise provided by an applicable treaty, international or interstate agreement, or statute,62 the rights of parties with regard to a corporeal thing of significant
cultural value (hereinafter thing)63 are determined as specifiedbelow.
2. A person who is considered the owner of the thing under the law of the state in which
the thing was situated at the time of its removal to another state shall be entitled to the
protection of the law of the former state (state of origin), except as specifiedbelow.
3. The owners rights may not be subject to the less protective law of a state other than the
state of origin,
(a) unless:
(i) the other state has a materially closer connection to the case than the state of
origin;and
(ii) application of that law is necessary in order to protect a party who dealt with the
thing in good faith after its removal to that state;and
(b) until the owner knew or should have known of facts that would enable a diligent
owner to take effective legal action to protect those rights.
and (5) interests of the artwork itself. See E. Jayme, Globalization in Art Law: Clash of Interests and
International Tendencies, 38 Vand. J.Transnatl L. 927, 929 (2005).
62. This phrase confirms the rules residual character. It applies only to the extent that it is not displaced
by a hierarchically superior rule, such as a rule contained in a treaty or international agreement, such as
The Hague, UNESCO, or UNIDROIT conventions cited earlier. Besides being hierarchically superior,
conventions provide more direct and efficacious ways of resolving or preventing these conflicts. For other
reasons, rules contained in special statutes that directly regulate these matters would also prevail over the
proposed rule, which is intended as a residual rule to guide the judicial choice oflaw.
63. The term corporeal is the civil law term for what the common law calls a tangible thing. Thus, the
rule does not apply to incorporeal or intangible things. The rule uses the term thing, rather than
movable or immovable, because the rule is, in principle, intended to encompass both categories. As
a practical matter, the rule becomes operable only when a thing is moved across state borders, which
can only occur if the thing is movable. Before movement and theft, however, the thing may have been a
part of another immovable thing, as was the case with the mosaics in Autocephalous. The rule applies to
things of significant cultural value. This phrase includes, but is not limited to, things of archaeological
value. For an expansive definition of things of significant cultural value, see Article 2 of the UNIDROIT
Convention, supra note 35 ([C]ultural objects are those which, on religious or secular grounds, are of
importance for archaeology, prehistory, history, literature, art or science and belong to one of the categories listed in the Annex to this Convention.). For the meaning of the same term under the Hague
Convention, see R. OKeefe, The Meaning of Cultural Property under the 1954 Hague Convention, 46
Neth. Intl L.Rev. 26 (1999). An interesting question is whether the same rule can work in cases involving
stolen artworks that are not of high cultural value but may be valuable in other respects.
594
f.Annotations totheRule
(1) the starting point: the lex rei sitae originis
Although the proposed rule deals with things that are moved across state or national boundaries (conflit mobile), the choice-of-law analysis must begin from a single fixed point. The most
logical choice is the state in which the thing was situated at the time of the critical event, typically the theft or other unauthorized removal (situs of origin). The starting premise of the
proposed rule is that a person who, under the law of the situs of origin, is considered the owner
of a thing, should not lose the protections and remedies that law accords to owners just because
the thing is later moved to another state or country.64 For the same reasons that anothers unilateral actsuch as a theftshould not alone negate those protections, the unilateral removal
of the thing to another state should not negate them either. As the Restatement (Second) states,
[i]nterests in a chattel are not affected by the mere removal of the chattel to another state.65
As in the Autocephalous case, the owner may be justifiably unaware of the theft and the thief s
identity, as well as the removal of the thing to another state. Substantive law protects the owners who are not blameworthy, and so should conflicts law. Based on this rationale, Paragraph 2
of the proposed rule enunciates a presumption in favor of the law of the situs of origin.
To be sure, there are good reasons for a rule, and not merely a presumption, in favor of the
law of the situs of origin. Indeed, no lesser a body than the Institut de droit international advocated precisely such a solution in 1991, calling for the unqualified application of the law of the
situs of origin.66 Similarly, the 1995 Unidroit Convention, which provides rules of substantive
law rather than of choice of law, is based on the premise that the law of the situs of origin is the
controlling law. That law determines whether the cultural object has been stolen67 or illegally
exported,68 and, if so, then the Convention mandates the return of the object to the country
of the situs of origin, regardless of what the law of the current situs provides.69 Finally, four
recent conflicts codifications, those of Albania, Belgium, Serbia, and Bulgaria, have adopted
a modified lex originis rule.70 These proposals or rules are commendable. Indeed, in an ideal
64. This protection depends on whether that person is willing and able to prove ownership under that
law. Failure to prove ownership would ordinarily defeat the owners action, even if the other party does
not prove its own ownership. See Government of Peru v.Johnson, 720 F.Supp.810 (C.D. Cal. 1989), aff d,
933 F.2d 1013 (9th Cir. 1991) (holding that the government of Peru could not recover allegedly stolen
artifacts because the uncertainty of Peruvian domestic ownership laws precluded it from proving ownership). This requirement is not anomalous because a party who is not in possession does not benefit from
the presumption of ownership that the other partys possession entails.
66. See Resolution adopted by Institute de droit international, Resolution on September 1999, 81 Rev. critique de droit intl priv 203 (1992) (providing that [t]he transfer of ownership of works of art belonging
to the cultural heritage of the country of origin shall be governed by the law of that country.).
67. See UNIDROIT Convention, art. 3(2) ([A]cultural object which has been unlawfully excavated or
lawfully excavated but unlawfully retained shall be considered stolen, when consistent with the law of the
State where the excavation took place.).
68. See id., arts. 1(b),5(2).
69. See UNIDROIT Convention, arts. 3(1), 5(1). For a strong endorsement of the lex originis rule, see
D. Fincham, How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property, 32
Colum. J.L. & Arts 111(2008).
70. The codifications of Albanian (art. 40), Belgium (art. 90), Serbia (draft codif. art. 121)and Bulgaria
(art. 70)provide that a state seeking to recover cultural property illegally exported from its territory may
595
world, there should be no argument that the country of origin has the closest connection and
the most legitimate claim to apply its own law in determining the ownership of objects comprising its cultural heritage. However, the fact that only 37 countries have ratified or acceded to
the Unidroit Conventionand none of them are market countries71 (i.e., wealthy countries
whose markets tend to attract stolen antiquities)serves as a reminder, if one were needed,
that we live in a less than idealworld.
The typical argument against applying the law of the situs of origin is that it would deprive
these countries of the ability to protect third parties who, in good faith, acquire rights in the
stolen property after its removal to these countries. When limited to third parties who have
acted in good faith, this argument has merit. Even so, this simply means that these other states
also have a certain interest in applying their own law; it does not mean that this interest necessarily outweighs that of the situs of origin. Which of the two interests should prevail in a given
case is a difficult question that admits different answers. The proposed rule attempts to provide
one such answer. It consists of a compromise, which retains the lex rei sitae originis but reduces
its role to that of a strong, but rebuttable, presumption. The owners opponent may rebut the
presumption by showing that the case meets all three conditions spelled out in Paragraph 3 of
the rule, as discussedbelow.
(2) a rule for true conflicts
Multistate cases involving stolen cultural property fall into the following patterns:
(a) Non-conflicts:cases in which the law of all involved states (the situs of origin and any
subsequent situs state) favor the same party, either the owner or present possessor.
Under the proposed rule, these cases would be decided under the law of the situs of
origin because there would be no reason to attempt to rebut the presumption that the
rule establishes in favor of thatlaw;
(b) Direct Conflicts: cases in which the law of the situs of origin favors the party whom
that law considers the owner (owner), whereas the law of a later situs favors the other
party, usually the present possessor of the thing (non-owner). The proposed rule
deals directly with these cases, which are discussed below;and
(c) Inverse Conflicts:cases in which the law of the situs of origin does not favor the owner
(and thus favors the non-owner), whereas the law of a later situs favors the non-owner
(and thus disfavors the owner).
The phrase less protective, in Paragraph 3 of the rule, makes that paragraph literally inapplicable to inverse conflicts because the law of the later situs is not less protective than the
choose between its own law and the law of the state in which the property is found at the time of the
claim. The first three codifications also provide that, if the claimant state chooses its own law and that law
does not grant any protection to good faith possessors, the defendant may invoke the protection accorded
such possessors by the law of the state in which the property is located at the time of the claim. In addition, Article 92 of the Belgian codification gives the same choices to the owner of other stolen goods. See
Belgian codif. art. 92 (allowing the owner to choose between the laws of the state from which the goods
were stolen or the state in which the goods are located at the time of revindication but allowing the defendant to invoke the protection accorded good faith possessors by the law of the former state if the owner
opts for the law of the latter state).
71. See UNIDROIT, http://www.unidroit.org/status-cp (last updated Apr. 29,2015).
596
law of the situs of origin. Thus, literally speaking, cases that qualify as inverse conflicts would
continue being governed by the law of the situs of origin under Paragraph 2 of the rule, even if
that law is less protective of the owner than the law of the later situs. The proposed rule, however, purposefully does not mandate this result, and allows the court discretion, in appropriate
cases, to apply the law of the state with the materially closer connection, even when that law is
more protective of the owner than the law of the situs of origin.72
The proposed rule deals expressly with direct conflicts only, namely cases in which the law
of the situs of origin favors the owner of the thing while the law of the other involved state,
usually the last situs, favors the non-owner. The rule provides that the law of the situs of origin
governs these cases (Paragraph 2), unless the owners opponent demonstrates that the case
satisfies all the conditions prescribed in Paragraph3.
(3) the state of the materially closer connection
Subparagraph (a) of Paragraph 3 of the proposed rule articulates the first condition for displacing the lex rei sitae originis. The displacement can only be in favor of a state that has a
materially closer connection with the case than the state of origin. Other iterations of this
concept include a manifestly more significant relationship, or a manifestly greater interest.
The precise choice of words is less significant than the basic notion that the threshold for rebutting the presumption in favor of the lex rei originis should be very high indeed. As both the
Autocephalous and Bakalar cases demonstrate, a relationship such as the one with Switzerland
in those cases does not even come close to this threshold, and it should not be sufficient to
displace the right of the situs of origin to apply its law. Atransitory, artificial relationship, especially one unilaterally fabricated by the defendant (or by persons through whom the defendant
claims) as in Autocephalous should never be considered more significant than the relationship
of the situs of origin.
In Dunbar, the plaintiff (and previously her mother) openly and publicly possessed the
painting in Louisiana for more than 50years,73 and that certainly qualifies as a materially closer
connection. However, in Autocephalous, the defendants possession of the mosaics in Indiana
lasted for only a few months. Consequently, the connection with Indiana was by no means
closer than the connection with Cyprus, where the mosaics were situated for more than 14 centuries. Similarly, no reason existed to give more weight to the defendants domicile in Indiana
than to the plaintiffs domicile in Cyprus. Unlike the plaintiffs, who had every reason to rely
on the protective law of their domicile and situs of origin, the defendant could not claim any
reliance on the non-protective law of her domicile, especially since none of the acts pertaining to the purchase took place in that state. Finally, the fact that Indiana was the forum state,
in and of itself, does not make Indianas relationship any more significant. The mere fact that
litigation took place there may justify the application of the forums procedural laws, but rules
pertaining to the loss and acquisition of ownership of stolen property should not be classified as procedural. If the forum qua forum were automatically to apply its statute of limitation, then states that have short statutes of limitations would become safe havens for thieves
72. Obviously, because these cases fall outside the literal scope of Paragraph 3, the case need not satisfy
the other conditions that paragraph prescribes for applying thatlaw.
73. The plaintiff s mother bought the painting in 1946, in NewYork, and the plaintiff inherited it in1973.
597
of cultural property or their transferees. The Autocephalous court avoided that possibility, but
only because it engrafted a discovery rule onto Indianas statute of limitations.
(4) the good faith proviso
The second prong of Paragraph 3(a) further limits the circumstances under which to apply the
less protective law of the state with the materially closer connectionthat is, only when necessary to protect a party who dealt with the thing in good faith after its removal to that state,
such as a purchaser or creditor who acted in good faith.74 In the Autocephalous case, Goldberg
clearly did not satisfy this proviso because the court found that she was not acting in good faith
when she bought the mosaics in Switzerland. Thus, even if Switzerland had a materially closer
connection (or, in the courts terminology, a more significant relationship) than Cyprus, the
court should not apply Swisslaw.
Likewise, even accepting the courts erroneous (but in that case harmless) finding that
Indiana had a more significant relationship than Cyprus, the fact that Goldberg did not act
in good faith would prevent her from taking advantage of Indiana law even if that law were
favorable to her. A different result would be possible, for example, if the property were situated in Indiana for a relatively long time, and third parties had dealt with the property in good
faith and in justifiable reliance on Indiana law. If Goldberg had openly and publicly exhibited
the mosaics for some time in the Indianapolis Museum of Art, and then sold them at a public
auction to a person who was acting in good faith, that persons reliance on Indiana law would
deserve appropriate consideration. Thus, if under Indiana law that person would be entitled
to reimbursement of the purchase price from the owner, such reimbursement should be due,
even if it would not be available under the law of the situs of origin, provided that the case also
satisfies the other conditions specified in Paragraph3.
In Dunbar, Louisiana had a materially closer connection than Austria, and thus the courts
next inquiry under the proposed rule should be the purchasers good faith at the time of the
purchase. The plaintiff s mother bought the painting from Kallirs NewYork gallery in 1946,
and the defendant alleged that the mother knew or should have known that the painting
may have been stolen from Jewish people in Europe, and therefore she had a duty to investigate the paintings ownership.75 The court did not discuss the purchasers good faith because,
under Louisiana law, a possessor who openly and publicly possesses a movable for more than
10years is not required to show that the purchaser was in good faith at the time of the purchase. We shall return to the quoted phrase later, but the proposed rule would require proof
of goodfaith.
(5) the time element: the discovery rule
Paragraph 3(b) of the proposed rule enunciates the third condition for displacing the law
of the situs of origin. This condition parallels the discovery rule the court enunciated in
74. The term good faith is a term of art, the precise meaning of which may differ slightly or more
than slightly from state to state. Consequently, the proposed rule should either provide a self-contained
definition of good faith or designate the state whose law would provide the definition. As the proposed
rule does not provide such a definition, it leaves open the question of which states law would provide the
definition in cases of conflict. The two candidates are (1)the law of the state in which the party acted, or
(2)the law of the forum qua forum. The preferred solution is(1).
75. Dunbar, 638 F.Supp.2d at661.
598
Autocephalous,76 except that the proposed rule has a broader scope. It not only suspends the
running of a statute of limitations as in the Autocephalous case, but also suspends or delays
the application of any other law that would cause the loss of the owners rights due to the passage of time. This includes rules of acquisitive prescription or adverse possession, such as the
Louisiana rules applied in Dunbar. The effect of the proposed discovery rule is to suspend the
running of time until the owner knows or, in the exercise of due diligence, should have known
of facts that would allow the owner to take effective legal action to protect the owners rights.
Although there is room for disagreement on the exact phrasing of this rule, there should
be little disagreement about the need for such a rule. In todays extremely mobile market, the
discovery rule is a sensible, equitable, and indispensable vehicle for furnishing diligent owners
with a fighting chance to recover their stolen property. Without such a rule, any pretense of
protecting owners of stolen property is truly a sham. For example, in Autocephalous, the owner
could not know of the exact time of the theft. Even when the theft became known some years
later, the owner could not ascertain the thief s identity. Thus, at that time the owner could not
sue any person, in any court, in any country. Only the application of the discovery rule would
avoid a result allowing the thief to benefit from his own wrongdoing.
The proposed discovery rule would suspend the running of time against the owner for as
long as the owner, for reasons beyond the owners control, is unable to protect his or her ownership. The owner should not lose the protection of the law of the situs of origin (even if the
law of a state with a materially closer connection denies that protection), unless and until the
owner has or should have had knowledge of facts that would enable the owner to take effective
legal action to protect his or her ownership. As soon as that knowledge becomes accessible, the
clock starts running and the owner becomes subject to the law of the state with the materially
closer connection, with all the attendant consequences. Depending on what that law provides,
these consequences may range from the complete loss of ownership to anything short of that,
such as recovery of the thing upon reimbursing the possessor for the purchaseprice.
(6) the discovery rule and even-handedness
As noted earlier, the discovery rule has both a positive and a negative effect on the owner. The
positive effect is to prevent the loss of the owners rights before the owner is able to protect
them. This is in keeping with the ancient equitable maxim contra non valentem agere non currit
praescriptio (prescription does not run against a person unable toact).
The negative effect is seen in the words diligent owner and should have known, which
impose on the owner a duty of due diligence, and impute the owner with knowledge that a
diligent owner would have obtained. As the Autocephalous case illustrates, in the case of theft,
this duty means, inter alia, that the owner must timely report the theft to the proper authorities
and launch a diligent search to discover the whereabouts of the property and the identity of the
thief. In turn, the publicity caused by the owners efforts would reduce the chances that prudent, diligent people (i.e., people of good faith) will buy the stolen thing. In turn, the discovery
rule provides an incentive to those who unknowingly buy a thing that turns out to be stolen to
76. For a statutory parallel, see Cal. Civ. Proc. Code 338(c)(2) (2015) (The cause of action in the case
of theft of any article of historical, interpretive, scientific, or artistic significance is not deemed to have
accrued until the discovery of the whereabouts of the article by the aggrieved party, his or her agent, or
the law enforcement agency that originally investigated the theft.).
599
publicize their possession of it, thereby triggering the running of time against the true owner.
In summary, the discovery rule is even-handed to both parties and provides both parties with
the proper incentives to act prudently.
(7) the discovery rule and the forums statute of limitation
A discovery rule is a rule of substantive law, not of conflict law. Indeed, when the Autocephalous
court applied the discovery rule, it did so because it concluded that the rule was part of Indianas
statute of limitation. The defendants vehemently challenged that conclusion on appeal, but the
appellate court affirmed it.77 Thus, the court was able to avoid turning Indiana into a haven for
possessors of stolen property.
Such a risk, however, is real and particularly high in cases in which:(1)the forum state follows the traditional common law approach of applying the forums shorter statute of limitation
on the theory that such statutes are always procedural,78 and (2)that statute is not subject to a
discovery rule. This is a deadly combination. It means that the forum state can apply its own
statute of limitations without even examining whether that state has any contacts that would
make application of that law reasonable,79 or even constitutionally permissible,80 and thereby
provide a safe harbor for virtually any thief who manages to bring his loot to that state. Adiscovery rule, which, as proposed here, is made part of the applicable choice-of-law rule, will
avoid this phenomenon.
(8) the discovery rule and non-forum substantive law
As stated above, the proposed discovery rule is meant to apply not only when the forum applies
its statute of limitations, but also when the forum applies its own or another states law of
acquisitive prescription or other similar law. For example, in Autocephalous, Swiss law arguably
provided that, if Goldberg were in good faith when she bought the mosaics, she would have
prevailed because, although her purchase from a non-owner did not vest her with ownership,
the owners action to recover the mosaics was not filed within five years from the theft. In the
actual case, the court found that Goldberg clearly was not in good faith when she took delivery
of the mosaics at the Geneva airport. However, in other cases such as Dunbar in which the
buyer is in good faith, the buyer qualifies as an innocent party and comes within the class of
people whom the legal order is obligated to protect. In such circumstances, the difficult question becomes how to choose between an innocent buyer and an innocent owner from whom
the thing was stolen.
77. See Autocephalous Greek-Orthodox Church of Cyprus v.Goldberg & Feldman Fine Arts, Inc., 917
F.2d 278, 28790 (7th Cir.1990).
78. See supra52831.
79. See P.Reyhan, AChaotic Palette:Conflict of Laws in Litigation between Original Owners and Good-
Faith Purchasers of Stolen Art, 50 Duke L.J. 955, 1023 (2001) (cautioning that viewing the question as one
involving conflicting limitations periods leads to a misstep that most seriously undermines the policies
at stake, because it permits the forum to apply its own rule despite limited and insignificant connections of the forum with the parties and the art.).
80. See Sun Oil Co. v.Wortman, 486 U.S. 717 (1988) (discussed supra 54849) (holding that the forum
state may apply its own statute of limitations, even if that state lacks sufficient contacts to constitutionally
permit application of its substantive laws to the merits).
600
The discovery rule proposed here makes the choice dependent on the owners actual or
imputed knowledge of the whereabouts of the property. If, despite exercising due diligence,
the owner could not have known of the whereabouts of the property, including its presence
in Switzerland, the owner could not have taken any effective legal action to protect his or her
rights. In such a case, it is appropriate to consider the owner as the more innocent of the
two parties and continue protecting the owner under the law of the situs of origin, even if
the second situs (Switzerland) were to have a materially closer connection, and the defendant
had bought the property in good faith. Conversely, if the owner knew or, in exercising due
diligence, should have known of the whereabouts of the property, then the owner is no longer
the more innocent party and does not deserve the continuing protection of the law of the situs
of origin. This is precisely how the discovery rule proposed here is intended to operate. In this
hypothetical case, the rule would suspend the running of time under Swiss law, regardless of
whether that law was one of acquisitive or liberative prescription, and regardless of whether
Swiss law itself contained a discovery rule of itsown.
g. Methodological Comments
(1) bridging the common law and civil law approaches
Although various legal systems handle actions for the recovery of stolen property through
many different approaches, one can group these approaches into two basic categories:(1)liberative prescription (statute of limitations), and (2) acquisitive prescription (adverse
possession).
The first approach, followed in many common law systems (such as the forum states of
Indiana and Massachusetts in the Autocephalous and MFA cases), focuses on the owners inaction, rather than on the adverse possessors activity. If the owner fails to bring the necessary
action against the adverse possessor within the period specified in the statute of limitations,
then the owners action is barred:(1)even if the possessor has not met the requirements for
acquiring ownership of the property, and (2)even if (in the absence of a discovery rule) the
owner did not have actual or imputed knowledge of the whereabouts of the property.
The second approach, followed in many civil law systems, including Louisiana in Dunbar,
focuses on the activities of the adverse possessor rather than of the owner of the property. If
the possessor possessed the property openly and publicly for the requisite period (which is
shorter if the possessor acted in good faith), then the possessor acquires ownership, even if the
owner did not have actual or imputed knowledge of the whereabouts of the property.
Contemporary realities, at least those involved in the cross-border trade of stolen cultural
property, demonstrate the severe inadequacies of both approaches. The liberative prescription
approach leads to a result that is both inequitable and conceptually anomalous. This approach
is inequitable because (in the absence of a discovery rule) it bars the owners action to reclaim
the owners property, without regard to whether the owner ever had the knowledge necessary
to assert it. It is conceptually anomalous in that, by barring the owners action, this approach
effectively negates the plaintiff s ownership even when the defendant did not meet the requirements for acquiring ownership.
The acquisitive prescription approach avoids the conceptual anomaly, but does not correct
the unfairness resulting from the failure to inquire as to whether the owner had the necessary
knowledge to protect his or her ownership. The original assumption, which was plausible in the
context of small rural societies from which this approach originated, was that a diligent owner
601
would easily acquire such knowledge because the adverse possession must have been open and
public in order to be effective. Obviously, this assumption is no longer reasonable in contemporary cases of cross-border movement of stolen goods. With the speed of todays transportation,
a stolen thing may be moved thousands of miles away in the course of a single day. Even if the
thing is possessed openly and publicly in the second situs, it may be extremely difficult for the
owner to discover such possession. As one author noted, [u]nlike domestic animals, to which
much of the early adverse possession cases apply, art is seldom open to view by the general
public in the way that horses and cows are.81
The discovery rule would cure the inadequacies of both of these approaches, by focusing
on the owner and asking the right questions; namely, whether the owner knew or should have
known of facts that would enable the owner to take effective legal action against the possessor
of the thing.82 If not, the owners rights should remain subject to the law of the situs of origin.
If yes, the owners rights should be subject to the law of the state that has the materially closer
connection.
(2) substantive law solutions to choice-of-law dilemmas
As noted earlier, the proposed rule deals with true or direct conflicts, namely cases that by definition present the most intractable of conflicts because each of the involved states has a legitimate claim to apply its own law. The state of the situs of origin has every reason to apply its law
to protect the owner, who is likely one of its domiciliaries and would ordinarily have no reason
to anticipate the application of another states law. Likewise, the state of the last situs has every
reason to want to apply its law to protect third parties who may have acted within its territory
in reliance upon that law. Good arguments can be made for applying the law of eitherstate.
In making a choice between the two laws, the proposed rule relies on three tests or factors.
The first test is conflictual, whereas the remaining two are substantive.83 The conflictual test
is the classic method of weighing the geographical, personal, and other factual contacts of the
case and the parties with the involved states to determine whether a state other than the state
of the situs of origin has a materially closer connection.
The substantive tests consist of two additional inquiries directed, respectively, at the two
disputing parties and those deriving rights through them. The first inquiry focuses on the
buyer or other third party and seeks to ascertain whether they acted in good faith at the critical time. The second inquiry focuses on the owner and seeks to determine whether the owner
knew or should have known of the whereabouts of the property and, if not, whether the owner
exercised due diligence.
81. T. Preziosi, Applying a Strict Discovery Rule to Art Stolen in the Past, 49 Hastings L.J. 225, 234
(1997). See also S. Bibas, The Case against Statutes of Limitations for Stolen Art, 103 Yale L.J. 2437, 2442
(1994) (noting that law developed for horses, cattle, sheep, and mules does not work well when used to
cover more easily concealed objects).
82. See OKeeffe v.Snyder, 416 A.2d 862, 872 (N.J. 1980)([t]he discovery rule shifts the emphasis from
the conduct of the possessor to the conduct of the owner by asking whether the owner has acted with
due diligence in pursuing his or her personal property.).
83. For the difference between conflictual and substantive or substantivist methods and techniques,
see S. Symeonides, American Choice of Law at the Dawn of the 21st Century, 37 Willamette L.Rev. 1, 4,
1116 (2001).
602
Obviously, these tests embody certain value judgments or considerations of substantive justice. The first is that only good faith purchasers and diligent owners deserve the protection of
conflicts law. The second is that when both parties pass the test (such as when the buyer acted
in good faith and the owner could not have known of the whereabouts of the property despite
his due diligence), the proposed rule opts in favor of protecting theowner.
Although there is no need to apologize for these value-laden choices, it is worth noting
their methodological implications. Because of these choices, the proposed rule is neither a
pure choice-of-law rule nor a pure substantive rule, but rather a blend or hybrid between the
twoit is une rgle de conflit coloration matrielle.84 As discussed in detail elsewhere,85 this
combination of substantive and conflictual elements is both permissible and beneficial when
used carefully.
I I . M A R I TA L P R OPERT Y
A.SUBSTANTIVELAW
Although the majority of states of the United States follow the common law system of separate property, eight states follow the Spanish-based system of community property: Arizona,
California, Idaho, Louisiana, Nevada, New Mexico, Texas and Washington.86 In a community
property system, spouses who live under the regime of community property87 co-own in a
50:50 ratio all property acquired by either of them during the marriage that is not classified
as the separate property of the acquiring spouse. The definitions of community and separate
property vary slightly from state to state, but generally separate property encompasses property that one spouse owned before marriage and any property a spouse inherits or receives
as a gift during marriage. Whatever is not classified as separate property is (or is presumed
to be), community property, and this includes the earnings of either spouse during marriage.
84. For elaboration of this concept, see S. Symeonides, Material Justice and Conflicts Justice in Choice
of Law, in International Conflict of Laws for the Third Millennium:Essays in Honor of Friedrich K.Juenger
125 (P. Borchers & J. Zekoll eds., 2001). For comparative discussion, see S. Symeonides, Codifying Choice
of Law 24588.
85. See Symeonides, supra note 83, at 4669 (discussing the challenge of combining jurisdiction-selecting
rules with content-and result-oriented rules).
86.Wisconsin also adheres to a form of community property, having adopted the Uniform Marital
Property Act in 1983, which approximates the community property system. See 9A U.L.A. 97 (1987);
P.E. Patterson & M.H. Ahrens, Comment, Migrating Couples and Wisconsins Marital Property Act,
68 Marquette L. Rev. 488 (1985); H.S. Erlanger & J.M. Weisberger, From Common Law Property to
Community Property:Wisconsins Marital Property Act Four Years Later, 1990 Wis. L.Rev. 769 (1990);
see also Alaska Community Property Act (Alaska Stat. 34.77.030 (2015)) (providing married couples
the option to enter into a written community property agreement or a community property trust).
87. Despite contrary popular belief, not all spouses who live in a community property state are subject
to a community property regime. Rather, that regime (called legal regime) applies only to the extent
that the spouses have not validly agreed to displace it. Before marriage, prospective spouses are free to
opt for a separate-property regime or, within certain limits, to modify the legal regime. During marriage,
spouses may also agree to modify or opt out of the legal regime in narrowly-defined circumstances. One
such circumstance is when the spouses move to a community propertystate.
603
The community property regime terminates by a judgment of divorce or separation, or with

the death of either spouse. Upon termination, the community property is subject to a 50:50
partition at the instance of either spouse or his or her heirs. Because most property is likely to
be community property, the separate property of each spouse is in principle free of any claims
in favor of the other. For this reason, the separate property is not subject to partition upon
divorce, or to inheritance rights in favor of the surviving spouse upon the death of the owning
spouse.
Separate property states begin with the premise that marriage does not affect the property
acquisitions of either spouse. Each spouse owns fully and exclusively any property he or she
acquired during the marriage. However, these states exhibit the same concern for protecting
the non-acquiring spouse as do community property states. Whereas community property
states protect the non-earning spouse during the marriage by granting him or her a 50percent
present proprietary interest in all property classified as community property, separate property
states protect the non-earning spouse through rights such as dower, statutory share, or equitable distribution that materialize at the end of the marriage. For example, upon the death of
one spouse, the surviving spouse has a right to take against the will of the deceased spouse
a certain statutory share or portion (e.g., one-third or one-fourth) of all the property of the
deceased, including, in some cases, property that would be classified as separate property in a
community property state. In cases of divorce, the doctrine of equitable distribution allows a
court to give to the non-owning spouse as much of the property of the owning spouse as is fair
and equitable under the circumstances. This may in some cases reach or exceed 50 percent
of the property, and it may include property that would be classified as separate property in a
community property state.88
B. THE CONFLICTS PROBLEM

The increased mobility of the typical American family generates a considerable number of
marital-property conflicts. Even when spouses do not move from one state to another, they
may live in a separate property state and acquire immovable property in a community property
state, or vice versa. Which law should govern the respective interests of the spouses in such
property?89
88. For the specifics, see S. Symeonides, In Search of New Choice-of-Law Solutions to Some Marital
Property Problems of Migrant Spouses:AResponse to the Critics, 13(3) Comm. Prop. J., 11, 1214, 2425
(1986).
89. Basic bibliography on this topic includes: Hay, Borchers & Symeonides, Conflict of Laws 65987;
Felix & Whitten, American Conflicts Law608-23; W. Reppy & C. Samuel, Community Property in the
United States (7th ed. 2009); J.B. Bertrand, Whats Mine Is Mine Is Mine: The Inequitable Intersection
of Louisianas Choice-of-Law Provisions and the Movables of Migratory Spouses, 79 Tul. L. Rev. 493
(2004); M. Clausnitzer, Property Rights of Surviving Spouses and the Conflict of Laws, 18 J. Fam. L. 471
(1980); M. Davie, Matrimonial Property in English and American Conflict of Laws, 42 Intl & Comp.
L.Q. 855 (1993); H.S. Erlanger & G.F. Monday, The Surviving Spouses Right to Quasicommunity
Property: A Proposal Based on the Uniform Probate Code, 30 Idaho L. Rev. 671 (1994); A.L. Estin,
International Divorce: Litigating Marital Property and Support Rights, 45 Fam. L.Q. 293 (2011); C.J.
Frantz & H. Dagan, Properties of Marriage, 104 Colum. L. Rev. 75 (2004); L. Graham, State Marital
604
Civil law systems focus on the spouses rather than on the propertys location, and generally
assign these matters to the law that governs the marital relationship (usually the law of the matrimonial domicile) rather than the law of the situs of the property.90 However, these systems encounter a difficult dilemma in the case of the mobile family, and they vacillate between the principles
of immutability and mutability of the law governing the matrimonial regime. Some systems take
the position that the law governing the regime at the beginning of the marital relationship remains
applicable at the end of the relationship, regardless of any intervening change of domicile.91 Other
systems provide that the change of matrimonial domicile brings about a change in the law governing the matrimonial regime, a change that may be partial or total, prospective only or also retrospective.92 In all instances, these systems recognize the freedom of the spouses to agree on the law
governing their property relations.93 However, as is the case with other choice-of-law agreements,
the spouses agreement may not exceed the public policy limits of the otherwise governinglaw.
Common law jurisdictions, including most American states that follow the community property system, also recognize the spouses freedom to agree on the governing law, subject to the
same public policy limits.94 However, in contrast to civil law systems, common law systems focus
on the property of the spouses, rather than on the spouses themselves. If the property in question
is immovable, then the whole law of the situs state governs the respective rights of the spouses.95
If the property is movable, the applicable law is, in principle, the law of the state in which the
acquiring spouse was domiciled at the time of the acquisition.96 The italicized phrase means that
when the spouses change their domicile, the movables they acquired in the new domicile will be
governed by the law of the new domicile. Indeed, since the early nineteenth century, American
conflicts law adopted the principle of mutability of the law governing the property relations of
Property Laws and Federally Created Benefits:AConflict of Laws Analysis, 29 Wayne L.Rev. 1 (1982);
F.K. Juenger, Marital Property and the Conflict of Laws:ATale of Two Countries, 81 Colum. L.Rev. 1061
(1981); K.W. Kingma, Property Division at Divorce or Death for Married Couples Migrating between
Common Law and Community Property States, 35 ACTEC J. 74 (2009); T.J. Oldham, Conflict of Laws
and Marital Property Rights, 39 Baylor L.Rev. 1255 (1987); T.J. Oldham, What if the Beckhams Move to
L.A.and Divorce? Marital Property Rights of Mobile Spouses When They Divorce in the United States,
42 Fam. L.Q. 263 (2008); S. Symeonides, Louisianas Draft on Successions and Marital Property, 35 Am.
J.Comp. L. 259 (1987); J.A. Talpis, Equitable Distribution of Matrimonial Property in Private International
Law, 26 Est. Tr. & Pensions J. 64 (2006); L.K. Thiele, The German Marital Property System:Conflict of
Laws in a Dual-Nationality Marriage, 12 Cal. W. Intl L. J. 78 (1982); D. Tooley-Knoblett, A Step by
Step Guide to Louisianas Choice of Law Provisions on Marital Property, 52 Loy. L.Rev. 759 (2006); R.J.
Weintraub, Obstacles to Sensible Choice of Law for Determining Marital Property Rights on Divorce or
in Probate:Hanau and the Situs Rule, 25 Hous. L.Rev. 1113 (1988).
91. See, e.g., Peruvian Civ. Code, Art. 2078; Austrian PIL codification 19; Greek Civ. Code, Art. 15;
Bustamante Code, Art.187.
92. See, e.g., Swiss PIL codification, Art. 55; German EGBGB, Art. 15; Hungarian PIL codification
39; Spanish Civ. Code Art. 9; and Hague Convention on the Law Applicable to Matrimonial Property
Regimes, Arts 68 (1978).
93. See, e.g., Austrian PIL codification, 19; German EGBGB, Art. 15(II); Swiss PIL codification, Arts
5253; Spanish Civ. Code, Art. 9; Hague Convention on the Law Applicable to Matrimonial Property
Regimes, Art.3.
94. See, e.g., Restatement (Second) 258(2).
95. See id. 233234.
96. See id.258.
605
spouses.97 However, American conflicts law remains divided as to whether this mutability should
be prospective only or also retrospective, that is, whether movables the spouses acquired before
the change of domicile should be governed by the law of the former or the new domicile.
Before we explore this question, it is important to reiterate that the mere change of domicile
does not ipso facto alter any existing property rights in assets previously acquired.98 Rather, the
question is whether the assets acquired in the former domicile should be subjected (for certain
purposes) to the law of the new domicile when a critical and pertinent event (e.g., the termination of the marriage by divorce or death) occurs after the change of domicile. The remainder
of this Section discusses the four approaches developed in the United States for answering the
above question.99 To facilitate the explanation of this complex matter, the discussion employs a
hypothetical scenario involving a mobile couple, Henry andWilma.
C. THE PROBLEM OFMOVING SPOUSES

1. From a Separate-P roperty State
toa Community-P ropertyState
In this scenario, Henry and his wife Wilma lived most of their married lives in State X, a
separate property state. During that time, Henry acquired in his own name movable assets
worth a total of $3million, while Wilma stayed at home raising their children. The law of State
X provides that:(1)in the case of divorce, Wilma would be entitled to 50percent of Henrys
$3 million under that states equitable distribution doctrine; and (2) in the case of Henrys
death before divorce, Wilma would be entitled to a statutory share of one-third of the $3million. Suppose, however, that the critical event (i.e., the divorce or Henrys death) does not
occur while the spouses are domiciled in State X, but rather six months after they moved their
domicile to State Y, a community property state. Wilma would then be before a State Y court,
in either a divorce or a succession proceeding, asserting her rights or claims to the $3million.
Should the court determine these rights by applying the law of the former domicile, State X, or
the law of the forum and present domicile, StateY?100
a.The Traditional Approach

The first approach for answering this problem is referred to hereafter as the traditional
approach. Under this approach, the court applies the law of the former domicile (State X) in
determining the ownership of the property (i.e., in classifying it as community or separate) and
then applies the law of the new domicile (State Y, the forum state), to distribute the property
97. See Saul v.His Creditors, 5 Mart. (n.s.) 569 (La.1827).

98. See Restatement (Second)259.
99. For discussions of, and citations to, cases and other authorities, see Hay, Borchers & Symeonides,
Conflict of Laws 65987.
100. Similar questions would arise if, with or without a change of domicile to State Y, Henry used the
$3million to buy an immovable in State Y.The questions then would be whether Wilma would be entitled
to any rights in this immovable and whether this question should be answered under the law of State Y
or StateX.
606
between the spouses. Because State X is a separate property state, its law probably would not
recognize the distinction between separate and community property. Consequently, all $3million would be classified as Henrys separate property. Because State Y is a community property
stateand under its law the separate property of one spouse is, in principle, free of any claims
in favor of the otherWilma will receive nothing out of Henrys $3million.101 To use a proverbial expression, Wilma falls between the cracks of the two systems. She loses, not only the protection of the law of her former domicile (State X), but also the protection that State Y grants
to similarly situated wives who were domiciled there throughout the marriage. This approach
distorts the common policy of both states in protecting the non-owning spouse, albeit through
different means. It is not surprising then that this approach is no longer followed, having been
superseded by statutes in most states.
b.The Pure Borrowed-Law Approach

The second approach is the pure borrowed law approach. It borrows and applies in its
entirety the law of the former domicile (State X), both to classify and to distribute the property. Under this approach, the court would award Wilma $1.5million in a divorce proceeding
and $1million in a succession proceeding; that is, exactly the same amounts she would have
received in a State X court.102 This approach produces perfect justice. The only problems with
this approach are logistical, especially in cases in which the parties have moved though several states before ending up in the forum state. In such cases, the burden of tracing back the
property through the multiple domiciles and ascertaining and applying the laws of all previous
domiciles can be significant.
c.The Pure Quasi-community Property Approach

The third approach, the pure quasi-community approach, compensates too much for the
logistical burdens of the pure borrowed-law approach and, moving to the other extreme,
applies forum law (State Y), both to classify and to distribute the property. California was
the first state to develop this approach, and other community-property states such as Texas
have followed.103 Californias version is more comprehensive in that, inter alia, it applies to
both divorce and death cases. For divorce purposes, the California Family Code defines
quasi-community property as including all real or personal property, wherever situated,
acquired by either spouse while domiciled elsewhere which would have been community
property if the spouse who acquired the property had been domiciled in [California] at the
time of its acquisition.104 Upon divorce or legal separation, the court is authorized to treat the
101. For cases applying this approach, see, e.g., In re Thorntons Estate, 33 P.2d 1 (Cal. 1934); Stephen
v.Stephen, 284P.158 (Ariz. 1930); Eggemeyer v.Eggemeyer, 554 S.W.2d 137 (Tex.1977).
102. For cases applying this approach, see, e.g., Hughes v. Hughes, 573 P.2d. 1194 (N.M. 1978); Berle
v.Berle, 546P.2d 407 (Idaho 1976); Rau v.Rau, 432P.2d 910 (Ariz. Ct. App.1967).
103. For citations, see Symeonides, supra note 88, at 26. California and Idaho apply this approach to both
divorce and succession cases, whereas Texas and Arizona apply it to divorce casesonly.
104. Cal. Fam. Code 125 (2015). Section 760 of the same Code provides that, unless expressly designated as separate property, all property, real or personal, wherever situated, acquired by a married person
during the marriage while domiciled in this state is community property.
607
quasi-community property as if it were community property and to divide it equally between

the spouses.105 For succession purposes, the California Probate Code defines quasi-community
property as including [a]ll personal property wherever situated, and all real property situated
in [California] acquired by a decedent while domiciled elsewhere that would have been
the community property of the decedent and the surviving spouse if the decedent had been
domiciled in [California] at the time of its acquisition.106 If the acquiring spouse dies while
domiciled in California,107 one-half of the decedents quasi-community property belongs to
the surviving spouse and the other half belongs to the decedent.108
Thus, under the above provisions, if State Y were California, the amount that a California
court would award Wilma would depend exclusively on how much of the $3million qualified
as community property under Californias internal law, and hence as quasi-community property, under the above provisions. If all of the $3million would qualify as community property,
then the court will award $1.5 million to Wilma, both in case of divorce and in the case of
Henrys death. If none of the $3million qualified, then the court will award Wilma nothing.
In between these two extremes lie several intermediate possibilities. However, in most possibilities Wilma will receive less, or much less, than she would have received in State X.Thus,
this approach avoids the logistical problems of the borrowed-law approach and, in some cases,
reaches the same results by giving Wilma the same percentage she would have received in her
previous domicile. In other cases, however, the quasi-community approach can be as unfair as
the traditional approach by giving Wilma a much lower percentage.
d.The Louisiana Approach

The 1991 Louisiana codification adopted a fourth approach combining the quasi-community
and the borrowed-law approaches.109 Under the Louisiana approach, the State Y court begins
with the forums classification rules. If all the property qualifies as community under those
rules, the court treats it as such under the forums distribution rules and the case ends there.110
Applied to the above hypothetical, if all of the $3 million would be classified as community
property under State Ys classification rules, then the court would apply the distribution rules
of State Y and award Wilma $1.5million. In this case, this approach produces the same result
as would the pure quasi-community approach, good orbad.
105. Cal. Fam. Code 2550 (2015). The quasi-community property is treated as part of the community
estate, along with the community property, and both are treatedalike.
106. Cal. Prob. Code 66 (2015).
107. If the decedent was domiciled outside California at the time of death, Californias scheme of quasi-
community property is in principle inapplicable. However, Section 120 of the Probate Code provides
that, with regard to California real property that is not classified as community property, the surviving
spouse has the same right to elect to take a portion of or interest in such property against the will of the
decedent as though the property were located in the decedents domicile at death.
108. Cal. Prob. Code 101 (2015). The same 50:50 ratio applies to community property regardless of
whether the decedent spouse was domiciled in California at the time of death. See id.100.
109. See La. Civ. Code Art. 3526 (2015). For an explanation of the rationale and operation of this article
and its differences from the pure quasi-community approach, see Symeonides, supra note 88, at1523.
110. See La. Civ. Code Art. 3526(1) (2015) (Property that is classified as community property under the
law of [the forum] shall be treated as community property under thatlaw).
608
The differences between these two approaches become apparent when some or all of the
$3million does not qualify as quasi-community property under State Y law. With regard to the
part of the property that does not so qualify, the Louisiana approach authorizes the application
of the distribution rules of State X.111 For example, if none of the $3million qualifies as community property under State Y law, the court will apply the distribution rules of State X and
award Wilma $1.5million in a divorce proceeding, or $1million in a succession proceeding.
In the identical case, Wilma would receive nothing under the pure quasi-community approach.
The Louisiana approach adopts the aspirational objectives of the borrowed-law approach
but avoids most of its logistical difficulties. It also utilizes the practical advantages of the pure
quasi-community approach (application of the forums classification rules) but avoids its pitfalls (giving Wilma less than she would have received in her former domicile). In divorce cases,
the Louisiana approach succeeds in treating Wilma the same way she would have been treated
in her former domicile, correcting the problems posed by the pure quasi-community approach.
In some death cases, however, the Louisiana approach overcorrects the problem by giving
Wilma more than she would have received under the internal laws of either State Y or State
X.Thus, if the pure quasi-community approach is guilty of under-protecting Wilma in many
divorce and succession cases, the Louisiana approach is guilty of overprotecting Wilma in
many succession cases. To be sure, overprotection of the non-owning spouse can be problematic because it comes at the expense of Henry or his heirs. However, unlike under-protection,
which puts all cards in the hands of the owning spouse, overprotection gives some leverage
to the non-owning spouse. In turn, this leverage makes a matrimonial agreement more likely,
before or after the change of domicile, or a testamentary arrangement than can equalize the
spouses position.
2. From a Community-P roperty State

toa Separate-P ropertyState
Let us now reverse the facts of the original scenario, so that State X, the former domicile,
is a community property state and State Y, the new domicile, is a separate property state.
Everything else remains the same; that is, the marriage is terminated six months after Henry
and Wilma move to State Y, either because of a divorce or because of Henrys death. If the marriage terminates by Henrys death rather than by divorce and State Y is one of the 16 states that
have adopted the Uniform Disposition of Community Property Rights at Death Act of 1971
(UDCPRDA),112 the State Y court will have a clear guidance on how to resolve potential conflicts. This Act applies to all personal property, wherever situated that was acquired as community property under the laws of another jurisdiction, and to any real property situated in
111. See La. Civ. Code Art. 3526(2) (2015) (Property that is not classified as community property under
the law of [the forum] shall be treated as the separate property of the acquiring spouse. However, the
other spouse shall be entitled, in value only, to the same rights with regard to this property as would be
granted by the law of the state in which the acquiring spouse was domiciled at the time of acquisition).
112. These states are Alaska, Arkansas, Colorado, Connecticut, Florida, Hawaii, Kentucky, Michigan,
Minnesota, Montana, NewYork, North Carolina, Oregon, Utah, Virginia, and Wyoming. See Uniform Law
Commission, http://www.uniformlaws.org/LegislativeFactSheet.aspx?title=Disposition of Community
Property Rights at Death Act (1971) (last visited July 13,2015).
609
this state that was acquired through funds that were classified as community property under
the laws of another jurisdiction.113
The Act treats this property as if it were community property by equally dividing it between
the surviving spouse and the decedent spouses estate. The Act provides that the surviving
spouses half is not subject to testamentary disposition by the decedent or distribution under
the laws of succession of this State,114 and that the decedents half is subject to testamentary
disposition or distribution under the laws of succession of this State [and] is not subject to
the surviving spouses right to elect against the will.115
Thus, if under the law of State X, the $3 million were classified as community property,
then the Act would give Wilma half, without a claim against the other half. If, under the law of
State X, the $3million was classified as Henrys separate property, then it would not fall under
the scope of this Act, and it would be subject to the general inheritance laws of State Y, including Wilmas possible forced share or right to take against [Henrys] will.116
The same results would follow if Henry and Wilma never left State X (the community
property state), but Henry used this amount to buy an immovable in his own name in State Y,
a separate property state. If, under State X law, the $3million would be classified as community property, the Act would be applicable and the immovable would be divided as described
above.117
3.RecentCases
a. Marital Property Agreements
As noted earlier, most Western legal systems recognize the power of the spouses or prospective
spouses to determine, within limits, the rules that will govern their property relations. In Van
Kipnis v.Van Kipnis,118 the parties, who were married in France, exercised this power by executing a prenuptial agreement opting out of Frances community property system and adopting instead the marital property system of separation of estates, as established by the French
Civil Code.119 The agreement provided that each spouse shall retain ownership and possession of the chattels and real property that he/she may own at this time or may come to own
113. Uniform Disposition of Community Property Rights at Death Act 1 (hereinafter UDCPRA).
114. See id. 3 (one-half of the property is the property of the surviving spouse and is not subject
to testamentary disposition by the decedent or distribution under the laws of succession of this State.).
115. Id. The Act does not affect the rights of creditors. Id. at6.
116. As good as it is, this Act does not apply to divorce cases. However, the judicially created equitable
distribution doctrine gives courts the flexibility of giving to one of the spouses as much of the property
of the other spouse as is fair and equitable under the circumstances. One such circumstance is when the
property was acquired as community property in another state. For a case addressing similar questions,
see In re Marriage of Whelchel, 476 N.W.2d 104 (Iowa Ct. App.1991).
117. Although the Act does not apply to divorce cases, courts have reached the same results as provided
in the Act. See Depas v.Mayo, 11 Mo. 314 (1848); Palmer v.Palmer, 654 So. 2d 1 (Miss.1995).
118. 900 N.E.2d 977 (N.Y.2008).
119. Id. at978.
610
subsequently by any means whatsoever.120 Shortly thereafter, the spouses moved to NewYork,
where they lived together for 38years before the wife filed for divorce and equitable division of
property under NewYork law. The husband invoked the prenuptial agreement as a defense to
the equitable division claims. The NewYork Court of Appeals upheld the defense.
The court noted that, under New Yorks Equitable Distribution Law, property that a prenuptial agreement designates as separate property is not subject to equitable division claims in
favor of the other spouse. The court found that this agreement had this precise effect because
it stated that each spouse shall retain ownership of property that he/she may come
to own subsequently.121 The court found that this agreement constitute[d]an unambiguous
prenuptial contract that precludes equitable distribution of the parties separate property.122
In Shaheen v. Khan,123 the parties were Indian nationals who were married in a Muslim
wedding in India. They signed a marital contract there, which contained a mahr provision
specifying the amount the husband would pay the wife in the event of a divorce. The husband moved to Louisiana and, three years later, the wife joined him. Louisiana law provided
that spouses domiciled in Louisiana were subject to the community property regime, regardless of their domicile at the time of marriage or the place of celebration of the marriage.
The spouses could opt out of that regime, within one year after moving to Louisiana without
court approval, or later with court approval. Because the spouses failed to opt out, the wife
had a claim to community property when she filed for divorce five years later. The husband
responded to this claim by arguing that the Indian mahr contract reflected the spouses intent
to establish a separate property regime; thus, there was no community property to divide.
Finding no such intent, the court rejected his argument. The court held that the spouses were
subject to Louisianas community property regime from the day the wife joined the husband
in Louisiana.
In Muchmore v.Trask,124 the premarital agreement was made in California in 1986, when
both parties were domiciled there. Shortly thereafter, the spouses moved to Washington and
then to North Carolina where, 10years later, the wife filed for divorce and alimony. The husband invoked the premarital agreement, which contained an explicit waiver of alimony. The
121. Id. at981.
122. Id. at 981. In M.v.M., 44 Misc. 3d 1210(A), 997 N.Y.S.2d 669 (Table), 2014 WL 3673321 (N.Y. Sup.
Ct. July 3, 2014), the parties, a Spanish and an Italian national, signed a matrimonial agreement in Spain
opting out of Spains community property regime and establishing a separate property regime. More than
a year later, they were married in the Dominican Republic and, two years later, they moved to NewYork.
They separated four years after, and the wife sued for divorce, alimony, and separation of property. The
husband invoked the prenuptial agreement, but his problem was that the agreement was invalid for more
than one reason, under both Spanish law and Dominican Republic law. The court did not say whether the
agreement would have been valid under NewYork law. However, even if it were, it would not have made
a difference because NewYorks connections with the case were not as strong as those of Spain, or even
those of the Dominican Republic. The court held that the agreement was invalid. In J.R.v E.M., 44 Misc.
3d 1211(A), 997 N.Y.S.2d 669 (Table) (N.Y. Sup. Ct. 2014), the court held that a matrimonial agreement
between a Spanish national and a Peruvian national living in NewYork, which was signed in the Spanish
Consulate in NewYork, was governed not by Spanish law (as the husband argued) but by NewYork law,
under which it was invalid.
123. 142 So. 3d 257 (La. Ct. App.2014).
124. 666 S.E.2d 667 (N.C. Ct. App.2008), review improvidently allowed, 686 S.E.2d 151 (N.C.2009).
611
wife argued that the waiver was unenforceable in North Carolina because, at the time of the
agreement in 1986, North Carolina cases had held such waivers to be against North Carolinas
public policy. The court rejected the argument, noting that, unlike this case, those precedents
involved intra-state agreements and cases. The court also noted that, like California, North
Carolina adopted the Uniform Premarital Agreement Act in 1987, which expressly permits
alimony waivers. The court reiterated that, under North Carolinas lex loci contractus rule,
California law governed the validity of the premarital agreement and that law did not contravene North Carolinas public policy.
In Hussemann ex rel. Ritter v. Hussemann,125 the question was the enforceability of a
postnuptial agreement by which each spouse waived all property claims against the other.
The agreement was made in Florida, where the spouses were domiciled at the time and
where they remained for another 14 years. They subsequently moved to Iowa, where the
husband died intestate seven years later. The wife sued his estate, claiming her elective share
under Iowa law. The estate invoked the postnuptial agreement, which was enforceable under
Florida law, but not under Iowa law. However, the agreement contained a Florida choice-of-
law clause, thus rendering applicable Section 187 of the Restatement (Second), which Iowa
follows.
The Iowa Supreme Court held that, even if Iowa law would have been applicable in the
absence of a choice-of-law clause, Iowa lacked two of the other requirements for not honoring
the clause under Section 187. First, although Florida had a significant interest in ensuring
that the agreement would be recognized and carried out in a manner consistent with its own
law,126 Iowa did not have a materially greater interest in applying its law. Second, the application of Florida law was not contrary to a fundamental policy of Iowa. The court reasoned that
on a spectrum of public policies, Iowas policy of not enforcing postnuptial agreements was
not at the upper end.127 After all, the courtnoted:
[i]t is not a crime to enter into such an agreement. There are no civil penalties. One cannot be
sued for entering into such an agreement. At most, our courts would simply decline to enforce
these agreements. Furthermore, if the agreement had been signed shortly before rather than
shortly after the parties marriage, it would have been enforceable.128
The courts reasoning improved, if only marginally, when it stated that the application of
Florida law was consistent with the parties expectations:
In our mobile society, we doubt that parties who enter into a valid contract in their home state
and live under that contract for fourteen years would expect that contract to be nullified simply
because they move to another state. Most people do not consult with an Iowa probate attorney
before deciding whether to move into Iowa.129
125. 847 N.W.2d 219 (Iowa2014).

126. Id. at226.
127. Id.
128. Id.
129. Id.
612
b. Marital Property andTalaq

In Aleem v. Aleem,130 the parties were married in Pakistan and, a few years later, moved to
Maryland, where they lived for 20 years. During this time, the husband acquired assets that
would be classified as marital property under Maryland law and would be subject to the wifes
equitable division claims under that law. Under Pakistani law, these assets were the husbands
separate property and would not be subject to any claims in favor of the wife. When the wife
filed for divorce and equitable division in Maryland, the husband went to the Pakistani Embassy
in Washington and executed a talaq (a unilateral, nonjudicial divorce) by signing a document
before witnesses stating three times I Divorce thee Farah Aleem.131 Under Pakistani law, a
husband has a virtual automatic right to talaq, but the wife has a right to talaq only if the written marriage agreement allows it, or if the husband otherwise grants that right to herneither
of which occurred in thiscase.
The husband argued that, because this divorce was effective under Pakistani law, the
Maryland court did not have jurisdiction to divorce him or to divide the marital property
because, under Pakistani law, all assets were his separate property. The lower courts rejected
both arguments and Marylands highest court affirmed. The court held that the enforceability of a foreign talaq divorce where only the male, i.e., husband, has an independent right to utilize talaq and the wife may utilize it only with the husbands permission, is
contrary to Marylands constitutional provisions and thus is contrary to the public policy
of Maryland.132 The court noted:Talaq lacks any significant due process for the wife, and
its use, moreover, directly deprives the wife of the due process she is entitled to when she
initiates divorce litigation in this State.133 The court also held that Pakistans denial of equitable division rights to property acquired by the husband during marriage were wholly
in conflict with the public policy of [Maryland] and deserved no comity in Marylands
courts.134
c. Marital Property andTaxes

Estate of Charania v. Shulman135 involved issues of federal estate tax law, specifically the tax
liability of the estate of a foreign domiciliary with regard to shares he owned in an American
corporation. Under American law, such shares are subject to federal estate tax, but the question
was whether all of those shares belonged to the decedent or whether half of them belonged to
his surviving spouse. The spouses were Ugandans of Asian descent but held British citizenship,
because at the time Uganda was a British colony. They married in Uganda in 1967, living there
until 1972, until they were expelled by Idi Amins regime and settled in Belgium, where they
lived for 30years. During that time, the husband bought the shares in his own name. When he
died in 2002, the shares were worth more than $11million, and the IRS included all of them
130. 947 A.2d 489 (Md.2008).

131. Id. at490.
132. Id. at 50001.
133. Id. at501.
134. Id.
135. 608 F.3d 67 (1st Cir.2010).
613
in his taxable estate. The wife claimed that half of the shares belonged to her under Belgiums
community property regime.
The court noted that the parties agreed, perhaps erroneously, that: (1) for federal estate
tax purposes, ownership of intangible personal property is controlled by the whole law of the
decedents domicile at the time of death, in this case Belgium; and (2)under Belgian choice-of-
law rules, a Belgian court would look to the whole law of the country of the spouses common
nationality, which was British. Thus, through this double-barrel renvoi, the question became
which law would an English courtapply.
The U.S.tax authorities argued that an English court would follow the doctrine of immutability of the law governing the marital property regime. Under this doctrine, the regime of the
state in which the spouses were domiciled at the time of their marriage would govern all movable property they acquire while domiciled in that state, as well as in any other state to which
they move later. Because at the time of the marriage the spouses were domiciled in Uganda,
Ugandan law continued to govern their marital property regime after they moved to Belgium.
Because Uganda had a separate marital property law borrowed from England, an English court
would in essence apply English marital property law and would classify all the shares as the separate property of the decedent spouse. In contrast, the estate argued that an English court would
follow the doctrine of mutability of the law governing the marital property regime, according to
which that law changes when the spouses move their domicile to another state, and the law of
each state applies to movables acquired while the spouses are domiciled in that state. Under this
doctrine, Belgian law would govern because the spouses were domiciled in Belgium when the
husband acquired the shares. Under Belgiums community property regime, half of the shares
would belong to the wife and would not be taxable as part of the husbands estate.
The First Circuit found that the only relevant English case on the subject was a 1900 decision of the House of Lords, De Nicols v.Curlier.136 Because De Nicols had followed the doctrine
of immutability, the First Circuit felt bound to do the same, holding that under Ugandan/
English law, all the shares were the separate property of the decedent, and hence all were taxable. The court rejected the estates arguments seeking to distinguish or discredit De Nicols, and
responded as follows to the argument that the result was unfair:
[A]pplying the De Nicols rule of immutability would not frustrate any clearly expressed intent of
the decedent and his wife. After all, the decedent took title to the shares in his own name and
never altered that form of ownership. Moreover, the couple had multiple opportunities to select
a marital property regime other than that of their original marital domicile, but they eschewed
those opportunities. For example, they could have selected a marital property regime by means
of either a prenuptial or postnuptial contract . Similarly, Belgian law afforded them a mechanism that allowed spouses to switch or modify the marital property regime governing their holdings, but they never invoked that mechanism.137
Parker v.Idaho State Tax Commission138 was another tax case with marital property issues.
The taxpayers Kathy and David Parker were married but they were domiciled in two different
136. [1900] A.C. 21 (H.L.).
137. Estate of Charania, 608 F.3dat75.
138. 230P.3d 734 (Idaho 2010), rehg denied (Apr. 29,2010).
614
states. David was domiciled in Nevada, a separate property state that does not have state
income tax, while Kathy was domiciled in Idaho, a community property state that has state
income tax. Under Idaho community property law, each spouse owns one-half of the other
spouses earnings during the marriage. The issue in this case was whether Kathy owed Idaho
taxes on one-half of Davids earnings from his Nevada job. The trial court, apparently applying
Idaho law, answered the question in the affirmative.
On appeal, the Parkers argued that the district court should have applied Nevada law and
that, under that law, all of Davids earnings would be considered his separate property and not
subject to Idaho taxes. The Idaho Supreme Court ruled that the Parkers did not preserve the
choice-of-law issue and declined to address it. The Parkers also argued that taxing one-half
of Davids Nevada income violated Davids due process rights because his only contacts with
Idaho was his marriage to Kathy. The court rejected the argument, noting that Davids contacts
with Idaho were irrelevant because Idaho was not taxing him but was instead taxing Kathy,
an Idaho domiciliary, for the one-half of Davids earnings, which, under Idaho law, belonged
toKathy.
d.Out-of-State Immovables
Roberts v.Locke139 involved the common scenario of spouses divorcing in one state and owning
immovable property in another state, and the equally common myth that the divorcing court
does not have jurisdiction to decide the spouses respective rights in out-of-state immovables.
It is of course true that a court does not have in rem jurisdiction directly to alter title in out-of-
state immovables.140 But it is also true that, as long as a court has in personam jurisdiction over
both spouses, the court may decide their respective rights in the out-of-state immovable and, if
need be, order them to make the necessary conveyances. As the Wyoming Supreme Court said:
For over a hundred years, it has been settled black-letter law that a court lacks authority to
directly determine and affect title to real property located outside the state in which the court
sits. However, it is equally well established that a court of equity having jurisdiction over a person
may act indirectly upon that persons extraterritorial real estate by ordering him or her to act or
to cease to act in some particular way in relation to the property . AWyoming court having
personal jurisdiction over the parties in a divorce action may therefore order one of them to
convey his or her interest in real property to the other, even though the property is in a foreign
country.141
In Roberts, the property in question was a beachfront lot and apartment building in Costa
Rica. The Wyoming court ordered the divorcing spouses to sell that property, pay off the marital debt, and then split the equity. The wife did not appeal that order, but she sabotaged or
impeded all efforts to sell the property. The court held her in contempt. She appealed the contempt order, arguing that under the Costa Rican Code of Civil Procedure, Costa Rican courts
had exclusive jurisdiction to decide controversies relating to ownership and title to movable or
139. 304P.3d 116 (Wyo.2013).
140. See Fall v.Eastin, 215 U.S. 1 (1909).
141. Roberts, 304P.3d at120.
615
immovable property located there.142 From this, she extrapolated that Wyoming courts lacked
jurisdiction to render any judgment involving the Costa Rica property. After noting that the
wife did not properly plead or prove Costa Rican law, the Wyoming Supreme Court properly
replied:
Even if [the wifes] representations regarding Costa Rican law are accurate, we fail to see how
these claimed provisions differ from the rule in Wyoming, which provides that its courts have
no authority to issue a judgment purporting to determine or directly affect title to real property
located in another state or foreign country. Nor can we discern why those provisions of Costa
Rican law would invalidate a Wyoming order requiring parties to a divorce in this state to convey
their foreign property in order to achieve an equitable distribution of marital assets.143
Similarly, in In re Marriage of Kowalewski,144 the Supreme Court of Washington held that a

Washington court that had in personam jurisdiction over the spouses and subject matter jurisdiction over the marital dissolution action also had the power to determine the spouses rights
to immovables situated in another state (Poland in this case). The court noted that, although a
court does not have power directly to affect title to real property located outside the state, a
court may indirectly affect title by means of an in personam decree operating on the person
over whom it has jurisdiction.145 After explaining why the Washington decree in this case did
not purport to directly affect title in the Polish immovables, the court noted that the decree in
no way intrudes upon Polands sovereign authority over land disputes because [i]t remains
for the Polish courts to decide what effect, if any, the Washington decree has on the legal ownership of real property in Poland.146
I I I . S U C CES S I ONS
A. UNITY OR SCISSION OFTHEESTATE
At a general level, the most pronounced difference between the conflicts laws of the civil-law
and common-law traditions on the subject of successions may be synopsized in two words
unity and scission of the estate.147 Unity of the estate is the operating principle in most
142. Id.
143. Id. at 12021.
144. 182P.3d 959 (Wash.2008).
145. Id. at962.
146. Id. at 964. For other cases involving similar issues, see Guray v. Tacras, 194 P.3d 1174 (Haw. Ct.
App. 2008) (holding that a California court that had in personam jurisdiction over both spouses also
had the power to assign to the wife 100percent of Hawaii immovables owned by the spouses as tenants
by the entirety); In re Marriage of Wright, 2013 WL 6633957 (Wash. Ct. App. Dec. 16, 2013)(applying
Washington law in distributing the goodwill of a Washington husbands surgical practice in Alaska).
147. Basic bibliography for the topics discussed in this Section includes:Hay, Borchers & Symeonides,
Conflict of Laws 1285
393; Felix & Whitten, American Conflicts Law 505-
37; J.A. Schoenblum,
Multistate and Multinational Estate Planning (2009); A. GrahlMadsen, Conflict between the Principle
616
civil law systems.148 With few exceptions, these systems treat the estate as a single unit to be
governed by a single law, regardless of whether the estate consists of movables or immovables
or their respective location. The applicable law may be either the law of the last nationality
(lex patriae) or the last domicile (lex domicilii) of the deceased, but it is always his or her personal law. In contrast, scission has been the operating principle in most common law systems,
including the American system. These systems differentiate sharply between immovables and
movables and assign the former the law of the situs (lex rei sitae) and the latter to the law of the
last domicile of the deceased.
Obviously, the principle of scission means that the succession of a single person may have
to be governed by two or more sets of laws. Thus, if a person died domiciled in State X and
owned movables and immovables in States Y and Z, her succession will be governed by three
different laws:the law of State X for all her movables, and the laws of States Y and Z respectively for her immovables. Even when the various states differ on issues that pertain to the
personal qualities of the individual testator, such as testamentary capacity, this scheme results
in treating the same testator as capable in one state and incapable in another. As the great comparatist Ernst Rabel once observed, [t]hat eight pieces of land need eight different systems of
liberty or restraint in testation is bad enough ; but that even the capacity to make a will
[is] independent in principle in every jurisdiction where an immovable is found transgresses
the borders of tolerable tradition.149
This lack of uniformity in the treatment of a single estate has not troubled common law
courts or legislatures. One reason could be that this was the only way to obtain another kind of
uniformity, which, for historical reasons, was considered more desirableuniformity of treatment of all immovables within each jurisdiction, regardless of the domicile of the owner or
other personal and thus non-stable factors. This preoccupation with land and intrastate uniformity with regard to land may be traced to the feudal conceptions of tenurial ownership of land,
which prevailed during the period immediately following the Norman Conquest in England.
In a society that essentially did not recognize individual ownership of land, it was natural that
the location of the land, and not the domicile of the tenant, would be the most significant
factor. As one author put it, [t]he feudal lords could not allow the descent of their land to
be affected if one of their vassals should acquire a foreign domicile.150 It was different with
regard to movables, which were susceptible not only to individual ownership but also to movement from one place to another. Their location at a given place at a given time was therefore
much less important, if only because it could well be transient. Thus, the domicile of the owner
seemed to be a more meaningful connecting factor.
of Unitary Succession and the System of Scission, 28 Intl & Comp. L.Q. 598 (1979); M. Hancock,
Equitable Conversion and the Land Taboo in Conflict of Laws, 17 Stan. L.Rev. 1095 (1965); G. Miller,
International Aspects of Intestate Succession, 1988 Conv. & Prop. L. 30 (1988); Note, Conflicts of Law
and Succession:Comprehensive Interest Analysis as an Alternative to the Traditional Approach, 59 Tul.
L.Rev. 389 (1984); J. Schoenblum, Choice of Law and Succession to Wealth:ACritical Analysis of the
Ramifications of the Hague Convention on Succession to Decedents Estates, 32 Va. J.Intl L. 83 (1991); E.
Scoles, Choice of Law in Family Property Transactions, 209 Recueil des Cours 17 (1988II); E. Scoles, The
Hague Convention on Succession, 42 Am. J.Comp. L. 85 (1994); Symeonides, supra note1.
148. For citations and exceptions, see Symeonides, supra note 1, at 103536.
149. E. Rabel, The Conflict of Laws:AComparative Study 272 (vol. 4,1958).
150. M. Wolff, Private International Law 567 (2d ed.1950).
617
Much has changed since those formative years. For instance, substantive common law
eventually recognized a concept of individual land ownership encompassing a power of disposition similar to that in the civil law. In fact, the lack of forced heirship in the common law
would suggest an even greater power of disposition in the individual owner at death. In both
systems, the relative disparity in economic value between movables and immovables has all but
disappeared. Yet, despite the disappearance of many substantive-law differences, the conflicts
laws of these two worlds have not converged in any appreciable degree. The labels of unity
and scission continue to symbolize two quite different philosophies between the two worlds.
Anglo-American conflicts systems continue to maintain a sharp dichotomy between movables
and immovables, looking at succession more in terms of the sovereigns power over property
than as a means of transmitting personal or familial wealth from one generation to the next.
Despite recent injections of what some call realism, civil law systems continue to look at succession from the perspective of the society to which the deceased and his family belonged, and
attribute much less significance to the location of his property assuch.
B. THE TWO RESTATEMENTS

Both conflicts Restatements follow the principle of scission faithfully and persistently. The First
Restatement assigns all issues of testate and intestate succession of immovables to the whole
law of the situs151 and all issues of succession of movables to the whole law of the decedents last
domicile.152 In typical fashion, the Restatement does not allow exceptions.
The Restatement (Second) abandons its usual equivocation and essentially reproduces the
same regime. It calls for the application of the law that would be applied by the courts of the
situs153 for immovables, and the law that would be applied by the courts of the state where
the decedent was domiciled at the time of his death154 for movables. The notion of aiming for
the state that with regard to the particular issue has the most significant relationshipthe
two standard phrases found everywhere in the rest of the Restatementis absent from this
chapter of the Restatement. The only flexibility the Restatement (Second) allows is through the
repeated statement that the situs courts will usually155 (i.e., perhaps not always) apply their
own locallaw.
The situs rule has the same vast scope in the Restatement (Second) as it had in the first
Restatement.156 The rule covers: (1) the formal validity of a testament and its revocation,
as well as its substantive validity, including the capacity of the testator and the capacity of

152. See id. at 300310.
154. See id. at 260265.
155. See id. at 236239, 241242, 261263,265.
156. The same is true of the domicile rule for movables in the two Restatements. The rule covers:(1)the
formal validity of the testament and its revocation, as well as its substantive validity, including the capacity of the testator and the capacity of the devisee (see id. at 263); (2)the statutory interest of the surviving spouse and his or her right to take against the will (id. at 265); (3)the right of adopted or illegitimate
children to inherit (see id. at 261262), and (4)all issues of intestate succession (see id. at 260).
618
devisee;157 (2)the statutory interest of the surviving spouse and his or her right to take against
the will;158 (3) the right of adopted or illegitimate children to inherit;159 and (4) all issues of
intestate succession.160
Even if one accepts the need for a situs rule, a rule with such a vast scope cannot survive the
scrutiny of modern policy analysis. Indeed, the situs state qua situs has no interest in regulating
matters such as:(1)whether a non-domiciliary has the proper age or mental capacity to make a
testament, or whether he was subject to undue influence; and (2)whether children or spouses
should be guaranteed a certain minimum share of the decedents estate (forced heirship, statutory share), whether illegitimate children can inherit and how much, or whether an adopted
child can inherit from her biological parents. The rules that regulate these matters embody
certain societal value judgments that have nothing to do with land utilization or certainty of
titlethe only legitimate concerns of the situs state. If the decedent and all the affected parties
are domiciled in one state and the land is situated in another, these value judgments belong to
the legislative competence of the latterstate.
Two recent cases illustrate the unchallenged reign of the situs rule with regard to succession to immovable property, even when the situs state does not have any connection with the
decedent or the heirs. The first case, In re Estate of Boyd,161 was a dispute among the heirs of a
Texas domiciliary with regard to her mineral interests in Oklahoma land. The decedents will
left all of her property to one heir and did not mention her other three heirs. ATexas court
probated the will and declared the named heir to be the sole devisee under the will. When the
devisee claimed all of the decedents interest in the Oklahoma minerals, the other three heirs
filed an objection in Oklahoma, claiming one intestate share each. They based their claim on
an Oklahoma statute that provided that an heir who is not mentioned in the will is nevertheless entitled to an intestate share, unless the omission is intentional. The devisee argued that
the Oklahoma court had to give full faith and credit to the Texas probate judgment that had
declared him the sole devisee.
The Oklahoma court rejected the full faith and credit argument, noting that [t]he decree
of another state attempting to settle equitable rights to lands in Oklahoma is coram nonjudice and void because jurisdiction to render a judgment in rem inheres only in the courts of the
state which is the situs of the res.162 The court also noted that an Oklahoma statute codifying
the situs rule provided that the validity and interpretation of wills is governed, when relating
to real property within this state, by the law of this state.163 The court held that, under this
statute, Oklahoma law governed, and affirmed a judgment for the three omittedheirs.
157. See id. at 239. With regard to construction of the will, Section 240 allows the testator to designate
the applicable law, but in the absence of such a designation, the will is construed under the law that would
be applied by the courts of thesitus.
158. See id. at239.
159. See Restatement (Second) 237238 . The Restatement (Second) does not address the right of
children to a forced share, apparently because common law states do not grant thisright.
160. See id. at236.
161. 321P.3d 1001 (Okla. Civ. App.2014).
163. Id. (quoting Okla. Stat. Ann. tit. 84, 20 (2011)).
619
Mohr v. Langerman164 was an inheritance dispute, involving Iowa farmland, between the
decedents surviving spouse and his biological son. Although the decedent may have had some
connection with Iowa before he moved to Arizona, neither of the disputants had any connections with Iowa. The surviving spouse was an Arizona domiciliary, whereas the son was born in
Arizona, domiciled in California, and recognized as the decedents son by an Arizona paternity
judgment. He argued that Arizona law should govern the question of whether he qualified as
the decedents heir. The Iowa court summarily rejected this argument, noting that the descent
of real property is governed by the laws of the state wherein the land in situated, regardless of
the domicile of the deceased.165
C. LEGISLATIVE INTERVENTIONS
1.TestamentaryForm
One widespread, but rather small-scale, modification of the traditional choice-of-law regime
involves the issue of testamentary formalities. As noted earlier, under the two Restatements
and traditional common law, the formal validity of wills was governed by the law of the situs
with regard to immovables, and by the law of the last domicile of the decedent with respect to
movables. This rule, described as being made unwisely, arbitrarily and unphilosophically,166
was expanded and liberalized by statutes modeled after the Uniform Wills Act of 1910, which
was later replaced by the Uniform Probate Code. These statutes supplement rather than replace
the traditional common law rule. They contain rules of validation, namely, rules designed
to validate the testament by alternative references to the laws of any of the states enumerated
therein that would uphold the testament as to form. These rules derive from the old policy
of favor testament, which is a basic feature of the substantive law of succession in most countries.167 Under the Uniform Probate Code, these states are the state of making of the testament,
or the state where, at the time of the making or at the time of death, the testator was domiciled
or resided, or was a national.168
In the rest of the world, the Hague Convention on the Conflicts of Laws Relating to the Form
of Testamentary Dispositions of 1961 provides a similar, if slightly more liberal rule,169 as does
164. 858 N.W.2d 36 (Table), 2014 WL 5243364 (Iowa Ct. App. Oct. 15,2014).
165. Id.at*3.
166. E. Rabel, The Conflict of Laws:AComparative Study 290 (v. 4, 1958) (quoting Phillimore).
167. See Symeonides, supra note 1, at 1048, 1046; see also E. Rabel, Conflict of Laws:AComparative Study
287 (1958) (invalidity of a will, discovered after the testators death is irreparable.)
168. See Unif. Prob. Code 2506 (2015). The Code has been adopted the following 17 states:Alaska,
Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Jersey,
New Mexico, North Dakota, South Carolina, South Dakota, and Utah. Many other states have adopted
similar statutes. See, e.g., Cal. Prob. Code 6113 (2015); N.Y. Est. Powers & Trusts Law 35.1(b) and
(c)(2015); Wis. Stat. Ann. 853.05 (2015).
169. Article 1 of the Convention provides that a testament shall be considered formally valid if it conforms to the internal law of any one of the following places:(a) The place where the testator made it, or
(b)Anationality possessed by the testator, either at the time when he made the disposition, or at the time
of his death, or (c)Aplace in which the testator had his domicile either at the time when he made the disposition, or at the time of his death, or (d)The place in which the testator had his habitual residence either
620
the European Unions Regulation on Successions of 2012.170 Forty-one countries have adopted
the Hague Convention,171 and 45 other countries have adopted statutes with similar rules.172
In the majority of cases, the courts choices under the above rules will be no more than
a couple. However, in cases involving dual nationals or testators who changed domiciles or
nationalities between the time of making the testament and the time of death, the choices will
be far more numerous. For example, under the Hague Convention, the courts choices may be
as many as eight.173
2. Bolder Interventions
At least one state, Louisiana, has succeeded in carving out of the situs rule significant exceptions that go far beyond form. For example, with regard to testamentary capacity and vices of
consent (such as error, duress, or undue influence), the 1991 Louisiana codification adopted
a validation rule that upholds a testament if it is valid under the law of the testators domicile at either the time the testament was made or at the time of the testators death.174 This rule
applies not only to movables but also to all immovables, regardless of their respective situses.
With regard to movables, this rule differs from the prevailing American rule that mandates
the application of the whole law of the state in which the testator was domiciled at the time
of death,175 regardless of whether it upholds the testament. The codification also recognizes
that Louisianas unique forced heirship law reflects societal judgments directed at Louisiana
families, rather than Louisiana immovables. Consequently, the codification provides that, even
when the estate consists of Louisiana immovables, Louisianas forced heirship law does not
apply if the deceased was domiciled outside Louisiana at the time of death and left no forced
heirs domiciled in that state at that time.176 In the converse situation involving a Louisiana
at the time when he made the disposition, or at the time of his death, or (e)Insofar as immovables are concerned, of the place where they are sit. For an authoritative discussion of this convention by its Rapporteur,
see A.E.von Overbeck, Lunification des rgles de conflits de lois en matire de forme de testaments (1961).
170. See Article 27 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of
4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions, and acceptance
and enforcement of authentic instruments in matters of succession and on the creation of a European
Certificate of Succession. This article is more liberal than the corresponding rule of the Hague Convention
because it also applies to agreements as to succession. Article 27 provides that a mortis causa disposition
made in writing shall be valid as to form if it complies with the law of:(a) The state in which the disposition was made or the succession agreement concluded; (b)The nationality, domicile, or habitual residence
of the testator or of at least one party to the agreement, at either the time of the disposition or agreement
or the time of death; or (c)With regard to immovables, the situs state.
171. For a list of the countries, as well as the text of the Convention, see Hague Conference on Private
International Law, http://www.hcch.net/index_en.php?act=conventions.text&cid=40 (last visited Aug. 20,
2015). The United States is not a party to the Convention.
172. For a list of the countries, see S. Symeonides, Codifying Choice of Law 25455.
173. Seeid.
174. See La. Civ. Code Art. 3529 (2015). Art. 3530 provides that, for both immovables and movables,
the capacity or unworthiness of an heir or legatee is determined under the law of the state in which
the deceased was domiciled at the time of death. For discussion of the rationale of these articles, see
Symeonides, supra note 1, at 105673.
176. See La. Civ. Code Art. 3533 (2015).
621
decedent and heirs and a non-Louisiana immovable, the codification provides for inclusion of
the value of that immovable in calculating the value of the estate and the heirs forced shares.177
In the rest of the world, some recent conflicts codifications have introduced rules designed
to favor the validity of a testament with regard to matters other than form. For example, regarding testamentary capacity, the Argentinean, Austrian, Louisiana, and Puerto Rico codifications
provide alternative references to the laws of the testators domicile either at the time of the
testaments making or the time of the testators death.178 The Serbian codification limits the
choices to the time of making the testament, but authorizes the application of the law of either
the testators habitual residence or nationality.179 The Swiss codification limits the choices to
the time of the testators death, but expands them to the law of the state of his domicile or of
his habitual residence, or the law of one of the states of which he is a national.180 The Finnish
Inheritance Code adopts the same solution with regard to time but adds to these choices the
law applicable to the inheritance.181
Other codifications extend this liberality to other matters affecting substantive validity. For
example, the Liechtenstein codification provides that a mortis causae disposition is valid as
to capacity and other conditions or validity if it satisfies the requirements of the laws of the
decedents nationality or habitual residence at either the time of disposition or the time of
death, or of the law of Liechtenstein with regard to proceedings in that country.182 The Chinese
codification allows the same choices with regard to the effects of a testament, although not
phrased explicitly in validating terms.183
3.TestatorsChoice
Perhaps the boldest departures for the traditional regime are rules that, within certain limits,
allow the testator to choose the law that will govern his or her succession.184 Such rules are found
in the Hague Convention on the Law Applicable to Trusts,185 the Hague Convention on the Law
177. See La. Civ. Code Art. 3534 (2015). For discussion of the rationale of these two articles, see
Symeonides, supra note 1, at 109297.
178. See Argentine draft codif. art. 120; Austrian codif. art. 30; Louisiana codif. art. 3529; Puerto Rico
draft codif. art.44.
179. See Serbian draft codif. art.107.
180. Swiss codif. art.94.
181. Finnish Code of Inheritance art.10.
182. See Liechtenstein codif. art.30.
183. See Chinese codif. art. 35. However, the choices do not include the lex fori assuch.
184. See A. Bonomi, Testamentary Freedom or Forced Heirship? Balancing Party Autonomy and the
Protection of Family Members, 28 Ned. IPR 605 (2010); E. Jayme, Party Autonomy in International
Family and Succession Law:New Tendencies, 11 Y.B. Priv. Intl L. 1 (2009); C.I., Nagy, What Functions
May Party Autonomy Have in International Family and Succession Law? An EU Perspective, 30 Ned. IPR
576 (2012); C. Roodt, Party Autonomy in International Law of Succession:AStarting Point for a Global
Consensus, 2 J. So. African L. 241 (2009).
185. See Art. 6 of Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on Their
Recognition. This convention is in force in Australia, Canada, Italy, Luxembourg, Malta, Monaco, the
Netherlands, Switzerland, and the United Kingdom.
622
Applicable to Estates,186 the European Unions Successions Regulation,187 and the Uniform Probate
Code in the United States,188 as well as in the codifications of more than 20 countries.189 Indeed,
the acceptance of the principle of party autonomy in the law of succession has been sufficiently
widespread to make credible the claim that it can be a starting point for a global consensus.190
In all of these rules, the testators choice of law is subject to geographical or substantive limitations, or both. For example, Section 2703 of the Uniform Probate Code provides:
The meaning and legal effect of a governing instrument is determined by the local law of the
state selected in the governing instrument, unless the application of that law is contrary to the
provisions relating to the elective share . . ., the provisions relating to exempt property and allowances..., or any other public policy of [the forum] state otherwise applicable to the disposition.191
This provision does not impose any geographical limits to the testators choice of law.192 It
applies to both movables and immovables and allows the testators chosen law to determine
not only the meaning but also the effect of a disposition. However, the testators choice of
law may not deprive the surviving spouse193 of certain guaranteed rights or exceed other public
policy limitations.
186. See Art. 5 of the Hague Convention of 1 August 1989 on the Law Applicable to Succession to the
Estates of Deceased Persons. This convention is not inforce.
187. See Art. 22 of Regulation (EU) No. 650/2012 of the European Parliament and of the Council of
4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance
and enforcement of authentic instruments in matters of succession and on the creation of a European
Certificate of Succession.
188. Unif. Prob. Code 2-703 (2015).
189. See Albanian codif. art. 33.3; Azerbaijan codif. art. 29; Armenian codif. art. 1292; Belarus codif.
arts. 1133, 1135; Belgian codif. art. 79 (testaments) and 124 (trusts); Bulgarian codif. art. 89; Burkina
Faso codif. art. 1044; Estonian codif. art. 25; Italian codif. art. 46 (successions) and art. 56 (donations);
Kazakhstan codif. art. 1121; South Korean codif. art. 49; Kyrgyzstan codif. art. 1206; Liechtenstein codif.
art. 29.3; Moldovan codif. art. 1624; Dutch codif. art. 145; Polish codif. art. 64.1; Puerto Rico draft codif.
art. 48; Quebec codif. arts. 3098-99; Romanian codif. art. 68(1); Serbian draft codif. art. 104; Swiss codif.
arts. 90(2), 91(2), 87(2), 95(2) (3); Tajikistan codif. arts. 1231-32; Ukrainian codif. art. 70; Uzbekistan
codif. art.1197.
190.C. Roodt, Party Autonomy in International Law of Succession: A Starting Point for a Global
Consensus, 2 J. So. African L. 241 (2009).
191. Unif. Prob. Code 2703 (2015). Section 1-201(18) of the Code defines governing instrument as
including a deed, will, trust, or a dispositive, appointive, or nominative instrument of any similartype.
192. In contrast, the 1989 Hague Convention on the Law Applicable to the Estates of Deceased Persons,
which also allows a testator to choose the applicable law, provides that such a choice is effective only if at
the time of the designation or of his death [the testator] was a national of that State or had his habitual residence there. Id. Art. 5(1). The United States is not a party to this convention. In other countries, private
international law codifications accord testators limited freedom to choose the applicable law, but subject
that choice to both geographical and substantive limitations. See Belarus codif. arts. 1133, 1135; Belgian
codif. art. 79 (testaments) and 124 (trusts); Bulgarian codif. art. 89; Burkina Faso codif. art. 1044; Italian
codif. art. 46 (successions) and art. 56 (donations); South Korean codif. art. 49; Polish codif. art. 64.1;
Quebec codif. arts. 30983099; Romanian codif. art. 68(1); Swiss codif. arts. 90(2), 91(2), 87(2), 95(2)(3);
S. Symeonides, Private International Law at the End of the 20th Century:Progress or Regress?, 5657 (2000).
193. The Uniform Probate Code does not contain a similar express protection for children because, with
the exception of Louisiana, most states do not provide for such automatic protection in the form of forced
heirship.
623
In contrast, the State of NewYork has enacted a unilateral rule taking the notion of testator choice a bit too far. Subdivision (h)of Section 35.1 of the NewYorks Estates Powers and
Trusts Law (EPTL) provides:
Whenever a testator, not domiciled in this state at the time of death, provides in his will that he
elects to have the disposition of his property situated in this state governed by the laws of this
state, the intrinsic validity, including the testators general capacity, effect, interpretation, revocation or alteration of any such disposition is determined by the local law of this state.194
This provision requires the application of NewYork law even if the testator has never set
foot in NewYork. All that is needed is for the testator to have sent her money to a NewYork
bank and to elect NewYork law in her testament. From NewYorks perspective, such an election renders NewYork law applicable to the intrinsic validity, including the testators general
capacity, effect, interpretation, revocation or alteration of any such testament. This is particularly troublesome when, under the law of her domicile, the testator does not have capacity
to elect NewYork law, or is not allowed, by election or otherwise, to make dispositions that
impinge on the rights of the surviving spouse or the children.
In Wyatt v. Fulrath,195 the court held that a rather fictitious election of New York law,
which was not permitted by the decedents domicile, resulted in depriving the surviving spouse
of protection guaranteed by the law of the marital domicile, Spain.196 In Estate of Renard,197
a French testators election of New York law resulted in depriving a child of his forced heirship rights guaranteed by French law. The Renard court had no trouble acknowledging that
the [New York] Legislature intended subdivision (h) to permit a decedent to avoid the
application of the French law of forced heirship.198 The Wyatt court spoke of honor[ing the
foreign citizens] intentional resort to the protection of our laws and their recognition of
the general stability of our Government.199 In another case, the court spoke of foreigners who
deposit funds in American banks in order to evade the currency laws in their native lands
or to protect against the fallout from revolutions.200 New York may well have an economic
interest in attracting bank deposits from citizens of other states or countries, and thus preserving the general stability of its financial institutions. However, the pertinent question is
whether New York has any affirmative legitimate interest in encouraging foreigners to evade
their countrieslaws.
In contrast to Wyatt, the testator in In re Estate of Rhoades201 was able to disinherit his
surviving spouse by not electing to have NewYork law govern his succession. The testator had
194. N.Y. Est. Powers & Tr. Law 35.1(h) (2015).
195. 211 N.E.2d 637 (N.Y.1965).
196.In Wyatt, the Spanish spouses had deposited funds in a New York joint bank account and had
signed a routine bank form stipulating to the application of New York law. Treating this as an election of NewYork law, the court applied that law, which was contrary to Spanish marital property and
successionlaw.
197. 437 N.Y.S.2d 860 (N.Y.Sur. 1981), aff d, 439 N.E.2d 341 (N.Y.1982).
198. Estate of Renard, 437 N.Y.S.2d at864.
199. Wyatt, 211 N.E.2d at639.
200. Neto v.Thorner, 718 F.Supp.1222, 1226 (S.D.N.Y.1989).
201. 607 N.Y.S.2d 893 (N.Y. Sup. Ct.1994).
624
died domiciled in Florida, and his Florida testament bequeathed his interest in a New York
immovable to his first wife. His second wife, also a Florida domiciliary, instituted proceedings
in NewYork, asserting her right of election to take against the will. Under Florida law, a surviving spouses right to take against the will does not encompass immovables situated outside
Florida.
The court held that under NewYork law, this right is not available to a spouse of a decedent who was not domiciled in [NewYork] at the time of death, unless such decedent elects
to have the disposition of his property situated in this state governed by the laws of this state.202
Because the decedent had not made such an election, the surviving spouse had no right to
take against his will. The plaintiff argued that this was an absurd result [in] that if a spouse
wants to disinherit his/her spouse from receiving any property located in NewYork, he/she can
move out of NewYork State, establish domicile in another state, and then execute a Will in the
other state disinheriting a spouse.203 The court responded that [t]his result, however unfortunate, is precisely what New York law allows. [I]t must be assumed that the Legislature
intended this result to occur.204 Indeed, who said that the Legislature must be reasonable?205
202. Id. at894.

203. Id.
204. Id.
205. For another case of disinheritance by non-election, see Saunders v.Saunders, 796 So.2 d 1253 (Fla.
Dist. Ct. App.2001), rev. denied, 819 So.2d 139 (Fla. 2002). Saunders involved a Florida statute providing
that when a nonresident decedent provides in her or his will that the testamentary disposition of
her or his real property in this state, shall be construed and regulated by the laws of this state, the validity
and effect of the dispositions shall be determined by Florida law. F.S.A. 731.106(2) (2015). The decedent, a Colorado domiciliary, did not provide in his will for the application of Florida law to his Florida
realty. The Florida court held that Colorado law would govern the succession even with regard to the
Florida realty, because the statute had displaced the common-law situsrule.
sixteen
Conflicts betweenFederal
Law and ForeignLaw
This chapter discusses how American courts resolve conflicts between U.S. federal law and
foreign law. The commonly used phrase to describe this subject is extraterritorial reach of federal statutes. This phrase is accurate to the extent it signifies that the methodology employed
is primarily unilateralist. However, this phrase is partly inaccurate because in many cases,
the question is not extraterritoriality but rather defining the exact contours of territoriality.
Moreover, federal law encompasses not only statutes but also federal common law, although
the majority of cases involve statutes, most of which are of a public-law character.
I I . C O N G R E S S I ONA L POWER
AND ITS LIMITS
A. INTERNATIONAL LAWLIMITS
From the United States perspective, there is no doubt that Congress has the constitutional
power to regulate, or define the legal significance of, events occurring outside the United States.
For example, a perusal of Article I, Section 8 of the Constitution reveals several grants of such
power, such as:to define and punish Piracies and Felonies committed on the high Seas, and
Offenses against the Law of Nations, to regulate Commerce with foreign Nations, to provide
for copyright and patent protection, and to make all Laws which shall be necessary and proper
for carrying into Execution all other Powers vested in the Government of the United
States.1
The reference to the Law of Nations signifies the Framers respect for international law,
but alone it does not answer the question of whether, in enacting legislation regulating foreign
1. U.S. Const. art. I, 8.Congresss power to regulate foreign commerce is broader than its power over
interstate commerce. See Japan Line Ltd. v.Cnty. of Los Angeles, 441 U.S. 434, 44550 (1979); Container
Corp. of Am. v.Franchise Tax Bd., 463 U.S. 159 (1983).
625
626
events or persons, Congress is bound by limits imposed by international law. The Supreme
Courts jurisprudence is replete with pronouncements of desired compliance with international
law. They include Justice Marshalls 1804 pronouncement in Charming Betsy that an act of
congress ought never to be construed to violate the law of nations if any other possible construction remains,2 and Justice Gray s statement in The Paquete Habana that [i]nternational
law is part of our law, and must be ascertained and administered by the courts of justice.3
However, these and numerous other similar pronouncements are confined to interpreting
silent or otherwise ambiguous congressional enactments. On the other hand, when the enactment contains language clearly making it applicable to foreign conduct, the prevailing view is
that the court must apply it to such conduct, even if that application would violate international
law. Judge Learned Hand articulated this view in the Alcoacase:
We are concerned only with whether Congress chose to attach liability to the conduct outside the
United States of persons not in allegiance to it. That being so, the only question open is whether
Congress intended to impose the liability, and whether our own Constitution permitted it to do
so:as a court of the United States, we cannot look beyond ourlaw.4
Similarly, the Restatement (Third) of Foreign Relations Law reiterates the principle that
international law is law of the United States and supreme over the law of the several States5
but, as this statement indicates, this is supremacy over state law and not necessarily federal law.
In any event, the statement is addressed largely to the courts,6 rather than the president7 or
Congress.8 Courts are expected to interpret statutes in a way that accommodates both the intent
of Congress and the limits of international law. However, if Congress expressed its intent clearly
and unambiguously, and the latter accommodation is not possible, then international law must
yield. Courts must give effect to a valid unambiguous congressional mandate, even if such
effect would violate international law.9 According to the Restatement (Third), [i]f construction of a statute that accommodates the intent of Congress within the limits of international law
is not fairly possible, the statute is nevertheless valid.10 Thus, it appears well-settled that, [i]f
2. Murray v.Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).

3. The Paquete Habana, 175 U.S. 677, 700 (1900).
4. United States v.Aluminum Co. of Am. (Alcoa), 148 F.2d 416, 443 (2d Cir. 1945)(emphasis added).
5. Restatement (Third) 111(1).
6. Id. 111, cmt.c.
7. With regard to the president, the Restatement (Third) states that under the Presidents constitutional
authority, as sole organ of the nation in its external relations or as Commander in Chief, the President
has the power to take various measures including some that might constitute violations of international
law by the United States.Id.
8. The Restatement (Third) goes on to explain that: (a) a rule of customary international law has no
status as law of the United States if the United States is not in fact bound by it, such as when the United
States had dissociated itself during the process of its formation, id. cmt. b; and (b) rules of international law are subject to the Bill of Rights and other prohibitions, restrictions, and requirements of the
Constitution, and cannot be given effect in violation of them. Id. cmt.a.
9. CFTC v.Nahas, 738 F.2d 487, 495 (D.C. Cir.1984).
10. Restatement (Third) 403, cmt.g.
Conflicts between Federal Law and ForeignLaw
627
Congress enacts legislation in violation of international law, U.S.courts must disregard international law and apply the domestic statute.11 Even treaties made under the authority of the
United States and ratified by the Senate, which under the Constitutions supremacy clause shall
be the supreme law of the land,12 are not binding domestic law unless Congress has enacted
implementing statutes or the treaty itself is self-executing and ratified as such by the Senate.13
B.CONSTITUTIONALLIMITS
Chapter2, above, discusses the limits that the Constitution imposes on the power of the states
of the United States to regulate cases with foreign elements. The question here is what limitations the Constitution imposes on the corresponding power of Congress. The Full Faith and
Credit clause is clearly inapplicable to international conflicts and does not bind the federal government, but the Due Process clause of the Fifth Amendment binds the federal government,
including Congress. The case law contains an abundance of statements referring to the constitutional limits of the federal governments power in the international arena.14 The Restatement
(Third) summarizes as follows:
The provisions of the United States Constitution safeguarding individual rights generally control
the United States government in the conduct of its foreign relations as well as in domestic matters, and generally limit governmental authority whether it is exercised in the United States or
abroad, and whether such authority is exercised unilaterally or by international agreement.15
In Boumediene v. Bush,16 the Supreme Court rejected as formalistic the federal governments argument that the Constitution necessarily stops where de jure sovereignty ends.17 The
Court reiterated that [e]ven when the United States acts outside its borders, its powers are not
absolute and unlimited but are subject to such restrictions as are expressed in the Constitution,
11. Born & Rutledge, International Civil Litigation604.

12. U.S. Const. art. VI,cl.2.
13. See Medelln v.Texas, 552 U.S. 491, 50405 (2008).
14. See, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) (referring to the presidents power to sign executive agreements:like every other governmental power, must be exercised in
subordination to the applicable provisions of the Constitution.). Also, in deciding cases involving criminal statutes, lower courts have assumed that the exercise of congressional power is subject to due process
limitations. See, e.g., United States v. Greer, 956 F. Supp. 531, 535 (D. Vt. 1997) and authorities cited
therein. (Although it is clear that Congress has the power to enact statutes that exceed the limits of international law, it may not exceed the limits of the due process clause.); United States v.Davis, 905 F.2d 245,
24849 (9th Cir. 1990), cert. denied, 498 U.S. 1047 (1991) (In order to apply extraterritorially a federal
criminal statute to a defendant consistently with due process, there must be sufficient nexus between the
defendant and the United States so that such application would not be unreasonable or fundamentally
unfair.); United States v.Juda, 46 F.3d 961 (9th Cir.1995), cert. denied sub nom. Paris v.United States, 514
U.S. 1090 (1995), cert. denied 515 U.S. 1169 (1995).
15. Restatement (Third) 721.
16. 553 U.S. 723 (2008).
17. Id. at755.
628
and that the political branches [do not] have the power to switch the Constitution on or off
at will.18 The Court restated the principle emerging from precedent that whether a constitutional provision has extraterritorial effect depends upon the particular circumstances, the
practical necessities and, in particular, whether judicial enforcement of the provision would
be impracticable and anomalous.19
The Court held that aliens detained as enemy combatants at the U.S. Naval Base at
Guantanamo Bay, Cuba, were entitled to the constitutional right of habeas corpus to challenge
the legality of their detention, and that a federal statute depriving federal courts of jurisdiction to hear habeas corpus petitions filed by these detainees was unconstitutional. However, as
the Court held in Rasul v.Bush,20 the Guantanamo base, although subject to nominal Cuban
sovereignty, falls under U.S. jurisdiction. As the Court noted, [b]y the express terms of its
agreements with Cuba, the United States exercises complete jurisdiction and control over the
Guantanamo Bay Naval Base, and may continue to exercise such control permanently if it so
chooses.21 Strictly speaking, therefore, Boumediene was not a case of clear extraterritorial
application of U.S.law. Indeed, so far at least, the Supreme Court has never held, and has had
no occasion to hold, that a federal statute regulating foreign events or persons is unconstitutional under the Due Process clause.
In any event, in most cases in which a party urges a court to apply (or not to apply) a federal statute to foreign events, the question is rarely whether the statutes application will violate
international or constitutional law, that is, whether the statute can be so applied. Rather the
question is whether the statute may, or should be, so applied. The answer depends on congressional intent as evidenced by the statutes language and other factors discussedbelow.
I II. STAT U T E S E X P R ES S LY A PPL I CA BL E

TO F O R E I G N E V E N TS OR PER S ONS
Congress has enacted hundreds of statutes that expressly apply to foreign events, foreign persons, or U.S. persons while present or acting abroad. The following are examples of such
statutes.
A. STATUTES APPLICABLE TOU.S. CITIZENS

PRESENT OR ACTINGABROAD
Congress has enacted numerous statutes applying to U.S. nationals who live or act abroad.
Among these statutes, which are based on the nationality basis of prescriptive jurisdiction,

20. 542 U.S. 466 (2004).
21. Id. at 480. The United States occupies this base pursuant to a 1903 lease with Cuba, which gives the
United States complete jurisdiction and control over and within [the leased area]. Id. at 471. A 1934
treaty with Cuba allows the United States to continue the lease atwill.
629
are:(1)the Trading with the Enemy Act of 1917,22 which applies to [a]ny individual, wherever
located, who is a citizen or resident of the United States;23 (2)the Logan Act of 1799, which
prohibits [a]ny citizen of the United States, wherever he may be, from contacting foreign governments to affect their policies;24 (3)the treason statute of 1940, which applies to any person
owing allegiance to the United States;25 (4)the selective service law of 1948, which requires
every male citizen of the United States to register for military service;26 and, more recently,
(5)the foreign sexual tourism statute.27
The foreign sexual tourism statute punishes [a]ny United States citizen who travels
in foreign commerce or resides, either temporarily or permanently, in a foreign country, and
engages in any illicit sexual conduct with another person.28 In United States v. Strevell,29 the
court rejected a challenge against the statutes extraterritorial application, noting that:
Congress specifically passed this act to criminalize illicit sexual acts taking place entirely outside
the United States. Congress realized the potential effects of domestic harm that come with foreign sex trafficking of minors [and] purposefully passed this statute in order to stop United
States citizens from traveling abroad in order to engage in commercial sex acts with minors.30
B. STATUTES APPLICABLE TOU.S.

CITIZENS INJUREDABROAD
Relying on the passive personality principle (converse of the nationality principle), Congress
has enacted several pieces of antiterrorist legislation, imposing criminal and civil sanctions for harm caused to U.S.citizens by acts of international terrorism.31 For example, the
22. See 50 U.S.C.app. 5(b) (2015).
23. 31 CFR 500.329(a). The Act also applies to any legal person organized under American law, or
owned or controlled by U.S.citizens, residents, or corporations.Id.
24. See 18 U.S.C. 953(2015).
25. See 18 U.S.C. 2381 (Whoever, owing allegiance to the United States, levies war against them or
adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of
treason[.]).
26. 50 U.S.C.app. 453 (2015).
27. See 18 U.S.C. 2423 (2015).
28. 18 U.S.C. 2423(c) (2015).
29. 185 Fed. Appx. 841 (11th Cir. 2006), cert. denied, 549 U.S. 1065, 127 S.Ct. 692 (2006).
30. Strevell, 185 Fed. Appx. at 845. The court affirmed the defendants conviction for attempting to travel
to Costa Rica to engage in prostitution with a minor. For other cases applying this statute to extraterritorial conduct, see United States v.Weingarten, 713 F.3d 704 (2d Cir. 2013); United States v.Stokes, 726 F.3d
880 (7th Cir. 2013), cert. denied, ___U.S. ___, 134 S.Ct. 713 (2013); United States v.Pendleton, 658 F.3d
299 (3d Cir. 2011), cert. denied, ___U.S. ___, 132 S.Ct. 2771 (2012); United States v.Frank, 599 F.3d 1221
(11th Cir. 15, 2010), cert. denied, 562 U.S. 876, 131 S.Ct. 186 (2010); United States. v.Hawkins, 513 F.3d
59 (2d Cir. 2008), cert. denied, 553 U.S. 1060 (2008); United States v.Clark, 435 F.3d 1100 (9th Cir. 2006);
United States. v.Tykarsky, 446 F.3d 458 (3d Cir. 2008), cert. denied, 556 U.S. 1175 (2008); United States
v.Bianchi, 594 F.Supp.2d 532 (E.D. Pa.2007).
31. 18 U.S.C. 2331(1)(C) (2015) defines the international attribute of terrorism as acts that occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms
630
Anti-Terrorist Act of 1991 (ATA)32 imposes criminal sanctions on [w]hoever kills a national
of the United States, while such national is outside the United States,33 and on [w]hoever
outside the United States engages in physical violence (1)with intent to cause serious bodily
injury to a national of the United States; or (2) with the result that serious bodily injury is
caused to a national of the United States.34 The Act also provides that [a]ny national of the
United States injured by reason of an act of international terrorism may sue therefor in
any appropriate district court of the United States and shall recover threefold the damages he
or she sustains. 35
Along the same line, the Antiterrorist and Effective Death Penalty Act of 1996 (AEDPA)
amended the Foreign Sovereign Immunities Act (FSIA) by eliminating the sovereign immunity
of certain foreign states (those designated by the U.S. State Department as sponsors of terrorism) in actions filed on behalf of U.S.citizens, killed or injured by acts of terrorism sponsored
or aided by these states.36
These two statutes have already generated a voluminous body of caselaw.37
of the means by which they are accomplished, the persons they appear intended to intimidate or coerce,
or the locale in which their perpetrators operate or seek asylum.
32. 18 U.S.C. 23312339C (2015).
33. 18 U.S.C. 2332(a) (2015).
34. 18 U.S.C. 2332(c) (2015).
35. 18 U.S.C. 2333(a) (2015). The action is also available to the victims estate, survivors, or heirs.Id.
36. See 28 U.S.C. 1605A (2015). The Act also extends its protection to members of the U.S.armed forces
and employees of the U.S.government or U.S.government contractors.
37. For civil cases decided under these statutes, see Ungar v.Palestine Liberation Org., 402 F.3d 274 (1st
Cir. 2005); Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004); Bettis v. Islamic
Republic of Iran, 315 F.3d 325 (D.C. Cir. 2003); Roeder v.Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir.
2003); Bennett v.Islamic Republic of Iran, 507 F.Supp.2d 117 (D.D.C. 2007); Biton v.Palestinian Interim
Self-Government Authority, 510 F. Supp. 2d 144 (D.D.C. 2007); Hurst v. Socialist Peoples Libyan Arab
Jamahiriya, 474 F. Supp. 2d 19 (D.D.C. 2007); Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25
(D.D.C. 2007); Rux v.Republic of Sudan, 495 F.Supp.2d 541 (E.D. Va. 2007); Valore v.Islamic Republic
of Iran, 478 F.Supp.2d 101 (D.D.C. 2007); Abur v.Republic of Sudan, 437 F.Supp.2d 166 (D.D.C. 2006);
Blais v. Islamic Republic of Iran, 459 F. Supp. 2d 40 (D.D.C. 2006); Bodoff v. Islamic Republic of Iran,
424 F. Supp. 2d 74 (D.D.C. 2006); Greenbaum v. Islamic Republic of Iran, 451 F. Supp. 2d 90 (D.D.C.
2006); Haim v.Islamic Republic of Iran, 425 F.Supp.2d 56 (D.D.C. 2006); Owens v.Republic of Sudan,
412 F.Supp.2d 99 (D.D.C. 2006); Prevatt v.Islamic Republic of Iran, 421 F.Supp.2d 152 (D.D.C. 2006);
Reed v. Islamic Republic of Iran, 439 F. Supp. 2d 53 (D.D.C. 2006); Dammarell v. Islamic Republic of
Iran, 404 F.Supp.2d 261 (D.D.C. 2005); Mwani v.Bin Laden, 417 F.3d 1 (D.D.C. 2005); Price v.Socialist
Peoples Libyan Arab Jamahiriya, 384 F.Supp.2d 120 (D.D.C. 2005); Salazar v.Islamic Republic of Iran,
370 F.Supp.2d 105 (D.D.C. 2005); Simpson v.Socialist Peoples Libyan Arab Jamahiriya, 362 F.Supp.2d
168 (D.D.C. 2005); Wyatt v.Syrian Arab Republic, 398 F.Supp.2d 131 (D.D.C. 2005); Acree v.Republic of
Iran, 370 F.3d 41 (D.C. Cir.2004); Knox v.Palestine Liberation Org., 306 F.Supp.2d 424 (S.D.N.Y. 2004);
Biton v.Palestinian Interim Self-Government Authority, 310 F.Supp.2d 172 (D.D.C. 2004); Burnett v.Al
Baraka Inv. & Dev. Corp., 274 F.Supp.2d 86 (D.D.C.2003); Campuzano v.Islamic Republic of Iran, 281
F.Supp.2d 258 (D.D.C. 2003); Kerr v.Islamic Republic of Iran, 245 F.Supp.2d 59 (D.D.C. 2003); Kilburn
v.Republic of Iran, 277 F.Supp.2d 24 (D.D.C. 2003); Regier v.Islamic Republic of Iran, 281 F.Supp.2d
87 (D.D.C. 2003); Smith ex rel. Smith v. Islamic Emirate of Afghanistan, 262 F. Supp. 2d 217 (S.D.N.Y.
2003); Stern v.Islamic Republic of Iran, 271 F.Supp.2d 286 (D.D.C. 2003); Weinstein v.Islamic Republic
of Iran, 274 F. Supp. 2d 53 (D.D.C. 2003); Surette v. The Islamic Republic of Iran, 231 F. Supp. 2d 260
(D.D.C 2002); Wagner v.Islamic Republic of Iran, 172 F.Supp.2d 128 (D.D.C. 2001); Estates of Ungar
631
C. STATUTES APPLICABLE TOPERSONS

ACTING UNDERFOREIGNLAW
The Torture Victim Protection Act (TVPA) of 1991, a companion statute to the Alien Tort
Statute (ATS), is an example of a statute specifically directed at foreign actors, or more precisely persons acting under authority of foreign law. The TVPA provides that an individual
who, under actual or apparent authority, or color of law, of any foreign nation (1)subjects an
individual to torture or to extrajudicial killing shall be liable for damages.38 Neither the
plaintiff nor the events on which the action is based need have any connection with the United
States. In fact, the TVPA contemplates foreign events insofar as it requires that the defendant
must have acted under color of foreign law, although it is conceivable (but not likely) that such
a defendant may have acted in the United States. What is clear is that the statute excludes from
its scope defendants who (whether foreign or American) have acted under color of United
States law.39 Moreover, as the Supreme Court held in Mohamad v.Palestinian Authority,40 the
TVPA subjects to liability natural persons only, thus excluding corporate defendants or organizations, such as the Palestinian Liberation Organization.
In Arar v.Ashcroft,41 a case involving so-called extraordinary rendition,42 the court erroneously concluded that the plaintiff, an alien, was ineligible for the protection of the TVPA
because U.S.citizens, and only U.S.citizens, are covered by the TVPA.43 The court based this
conclusion on a statement from the Congressional Record that does not seem to support the
conclusion,44 as well as on cases holding that the TVPA provides a cause of action to U.S.citizens, but which did not hold or suggest that it precludes aliens. The Arar court must not have
realized that several other courts had applied the TVPA to actions brought by alien plaintiffs.45
Ultimately, the court based its dismissal on the TVPA requirement that the defendants must
v. The Palestinian Authority, 228 F. Supp. 2d 40 (D.R.I. 2001); Flatow v. Islamic Republic of Iran, 999
F.Supp.1 (D.D.C.1998).
38. 28 U.S.C. 1350 Note (2015).
39. For cases so holding, see Arar v. Ashcrof, 585 F.3d 559 (2d Cir. 2009), cert. denied, 560 U.S. 978
(2010); In re Iraq and Afghanistan Detainees Litig., 479 F.Supp.2d 85 (D.D.C. 2007), aff d, 649 F.3d 762
(D.C. Cir., 2011), rehg en banc denied (Sept. 19,2011).
40. ___ U.S. ___, 132 S.Ct. 1702 (2012).
41. 414 F.Supp.2d 250 (E.D.N.Y.2006).
42. This is a typically euphemistic term coined by the CIA to describe its practice of delivering people
suspected of terrorist ties or activities to other countries for interrogation. The plaintiff was the victim
of such a practice.
43. Arar, 414 F.Supp.2d at263.
44. See id., quoting H.R. Rep. No. 102367, 102d Cong., 2d Sess., at 4 (1991), which states that [w]hile
the Alien Tort Claims Act provides a remedy to aliens only, the TVPA would extend a civil remedy also to
U.S.citizens who may have been tortured abroad. (emphasis added). In this authors view, the italicized
word suggests that Congress intended to provide a cause of action to both U.S.and alien plaintiffs.
45. See, e.g., Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006); Gonzalez-Vera v. Kissinger, 449 F.3d 1260
(D.C. Cir. 2006), cert. denied, ___U.S. ___, 127 S. Ct. 1356 (2007); Chavez v. Carranza, 559 F.3d 486
(6th Cir. 2009), cert. denied, 558 U.S. 822, 130 S.Ct. 110 (2009); Nikbin v.Islamic Republic of Iran. 517
F. Supp. 2d 416 (D.D.C. 2007); Doe v. Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004); Abiola v. Abubakar,
435 F.Supp.2d 830 (N.D. Ill. 2006), appeal denied, 2006 WL 2714831 (N.D. Ill. 20 Sept. 2006); Bowoto
v.Chevron Corp., 2006 WL 2455752, 2006 WL 2455761 (N.D. Cal. Aug. 22,2006).
632
have acted under color of law of any foreign nation. The defendants, who were U.S.officials,
argued and the court agreed that any law under which they were acting in this case would be
domesticnot foreign[.]46 The Court of Appeals affirmed the decision on this latter ground.47
D. STATUTES APPLICABLE TOTHE HIGHSEAS

Several statutes are expressly applicable to the high seas. They are enacted under the High Seas
Clause of the Constitution, which grants Congress the power to define and punish Piracies
and Felonies committed on the high Seas, and Offences against the Law of Nations.48
One such statute punishes piracy and refers to the law of nations to define it. The statute
provides that:Whoever, on the high seas, commits the crime of piracy as defined by the law
of nations, and is afterwards brought into or found in the United States, shall be imprisoned
for life.49 In United States v. Ali,50 the defendant was charged under this statute with aiding
and abetting in the commission of piracy.51 The court rejected the defendants argument that
because his acts took place on land or within territorial waters rather than on the high seas, the
law of nations did not authorize the piracy charges against him. The court relied on Article 101
of the United Nations Convention on the Law of the Sea (UNCLOS), which defines piracy as
consisting of certain illegal acts of violence or detention on the high seas, but also includes
any act of intentionally facilitating52 those illegal acts, even if the facilitating does not
occur on the high seas. Based on this provision, the court held that the United States could
prosecute the defendant for facilitating or, in American terms, aiding and abetting the commission of piracy.53
Another statute enacted under the same constitutional clause is the Maritime Drug Law
Enforcement Act (MDLEA), which makes it unlawful for any person on board a vessel
subject to the jurisdiction of the United States to possess certain drugs with intent distribute.54
Avessel is subject to the jurisdiction of the United States, inter alia, if it is:(1)a stateless vessel, or (2)a vessel flying the flag of a foreign country that has consented or waived objection
to the enforcement of U.S.law by the United States.55 Other statutes applicable to the high seas
46. Arar, 414 F.Supp.2d at264.
47. See Arar v.Ashcrof, 585 F.3d 559 (2d Cir. 2009), cert. denied, 560 U.S. 978 (2010).
48. U.S. Const. art. I, 8, cl.10.
49. 18 U.S.C. 1651 (2015).
50. 718 F.3d 929 (D.C. Cir. 2013), rehg en banc denied (Aug. 21,2013).
51. The defendant, a Somali national, had negotiated the ransom for the release of a Danish vessel captured by Somali pirates on the high seas off the coast of Somalia. Although the defendant was deeply
involved in the piracy operation, his activities were confined in Somali land and territorial waters and did
not extend to the highseas.
52. UNCLOS, art. 101(c), Dec. 10, 1982, 1833 UNTS. 397,436.
53. For other cases upholding piracy charges against foreign defendants, see United States v.Shibin, 722
F.3d 233 (4th Cir. 2013), cert. denied, ___U.S. ___, 134 S.Ct. 1935, (2014); United States v.Dire, 680 F.3d
446 (4th Cir. 2012), cert. denied, ___U.S. ___, 133 S.Ct. 982 (2013).
54. 46 App. U.S.C.A. 1903(a) (2015).
55. Id. at 1903(c). For recent applications of this statute, see United States v. Bellaizac-Hurtado,
700 F.3d 1245 (11th Cir. 2012); United States. v. Cardales-Luna, 632 F.3d 731 (1st Cir. 2011), cert.
633
are the Drug Trafficking Vessel Interdiction Act,56 the Marine Mammals Protection Act,57 and
the Death on the High Seas Act (DOHSA), which applies to deaths caused by acts occurring
on the high seas beyond a marine league from the shore of any State of the United States.58
E. STATUTES APPLICABLE TOALIENS

WHILEIN THEUNITEDSTATES
In light of the principle of territoriality, there is nothing unique about a statute that applies to
aliens while they are present in the United States. However, when a statute applies to the internal
affairs of foreign flag ships, the statute is worth noting.59 One such statute is the Seamens Act of
1915, which governs seamens wages. In 1920, Congress amended the Act to make it applicable
to a seaman on a foreign vessel when in a harbor of the United States and to make [t]he courts
[of the United States] available to the seaman for [its] enforcement.60 This amendment was
a conspicuous intervention into matters that otherwise clearly belonged to the internal affairs of
foreign ships. The stated congressional policy behind this intervention was to equalize on foreign vessels the burdens placed by American law upon the American merchant marine, by
making such foreign vessels subject to regulations affecting American vessels.61
In Strathearn Steamship Co. v.Dillon,62 the Supreme Court upheld the application of the Act
to a wage dispute arising out of a British employment contract between a British seaman and
the British owner of a British vessel. The Court reasoned that, in light of the explicit language
of the 1920 amendment, any construction rendering the Act inapplicable to foreign vessels or
seamen would subvert Congresss intent to promote the employment of American seamen by
plac[ing] American and foreign seamen on an equality of right with equal opportunity to
resort to the courts of the United States for the enforcement of the act.63
denied, ___U.S. ___, 132 S.Ct. 573 (2011); United States v.Brant-Epigmelio, 429 Fed. Appx. 860 (11th
Cir. 2011), cert. denied, ___U.S. ___, 132 S. Ct. 1536 (2012); United States v. Angulo-Hernandez, 565
F.3d 2 (1st Cir. 2009), rehg and rehg en banc denied, 576 F.3d 59 (1st Cir. 2009), cert. denied, 558 U.S. 1063
(2009); United States v.Bravo, 489 F.3d 1 (1st Cir. 2007), cert. denied, ___U.S. ___, 128 S.Ct. 344 (2007);
United States v.Lopez-Vanegas, 493 F.3d 1305 (11th Cir. 2007); United States v.Perlaza, 439 F.3d 1149
(9th Cir. 2006); United States v.Garcia, 182 Fed. Appx. 873 (11th Cir. 2006), cert. denied, 549 U.S. 1110,
127 S.Ct. 929 (2007); United States v.Ma, 2006 WL 708559 (S.D.N.Y. Mar. 21,2006).
56. See 18 U.S.C. 2285 (2015); United States. v.Saac, 632 F.3d 1203 (11th Cir. 2011), cert. denied, __
_U.S. ___, 132 S.Ct. 139 (2011); United States v.Ibarguen-Mosquera, 634 F.3d 1370 (11th Cir.2011).
57. See 15 U.S.C. 13611421 (1994); United States v.Mitchell, 553 F.2d 996 (5th Cir.1977).
58. 46 U.S.C.app. 761(a) (2015). See Lam v.Global Med. Sys., Inc. 111P.3d 1258 (Wash. Ct. App.2005)
(applying DOHSA to death of seaman aboard vessel in Bering Sea); Beckett v.MasterCraft Boat Co., 24
Cal. Rptr. 3d 490 (Cal. Ct. App.2005), review denied (June 8, 2005)(applying DOHSA to death occurring
in Mexican river).
59. The internal affairs doctrine is discussed infra63641.
60. 46 U.S.C. 10313(I) (2015).
61. Brief for the United States as Amicus Curiae at 4, Strathearn S.S. Co. v.Dillon, 252 U.S. 348 (1920).
See also H.R. Rep. No. 645, pt. 1, 62d Cong., 2nd Sess. 7 (1912).
62. 252 U.S. 348 (1920).
63. Id. at355.
634
F.INTERPRETATION
As Dillon illustrates, when there is clear congressional intent about a statutes applicability to
foreign events or persons, the courts job is simply to apply the statute as written, unless the
statute is unconstitutional. From the perspective of choice-of-law methodology, statutes that
expressly or impliedly delineate their reach to encompass foreign events or persons are either
unilateral conflicts rules or spatially conditioned substantive rules. As such, they legislatively answer the choice-of-law question, leaving little for the courtstodo.
In contrast, when a statute does not contain such a delineation, it falls upon the courts to
define its potential extraterritorial reach. In so doing, the courts will employ all the resources
of statutory construction and interpretation. Arelated methodological question, which rarely
appears on the surface of judicial opinions, is whether courts should approach this process
from a unilateralist or a multilateralist perspective.64 As explained below, American courts have
vacillated between these two perspectives.
I V. S TAT U T E S T H AT A R E S I L ENT
O R A M B I G U O U S ON T HEI R
T E R R I T O R I AL R EA CH
A.INTRODUCTION
As helpful as they would be, express congressional statements (affirmative or negative) about a
statutes intended territorial reach are uncommon, if not rare. Like state statutes, most federal
statutes are either silent on the question of their application to foreign cases or contain boilerplate language 65 whose literal catholicity,66 if taken at face value, would make them applicable to any and all activities, territorial or extraterritorial. As Brainerd Currie once observed,
[l]awgivers are accustomed to speak in terms of unqualified generality [using] words
like all, every, no, any, and whoever67 because they ordinarily give no thought to the phenomena that would suggest the need for qualification.68 For example, the Jones Act purports
to provide a remedy to [a]ny seaman69 who suffers an injury in the course of his employment.
64. Generally speaking, multilateralist approaches are those that purport to select the governing law
through predetermined and ostensibly neutral criteria that are in principle indifferent to the respective
claims of the involved states in applying their laws. Unilateralist approaches are those in which these
claims, especially those of the forum state, are the principal factors in ultimately selecting the governing law. For a discussion of the evolution and contemporary misunderstanding of these concepts, see S.
Symeonides, Accommodative Unilateralism as a Starting Premise in Choice of Law, in H. Rasmussen-
Bonne, R. Freer, W. Lke & W. Weitnauer (eds.), Balancing of Interests: Liber Amicorum Peter Hay 417
(2005).
65. Hartford Fire Ins. Co. v.California, 509 U.S. 764, 813 (1993); EEOC v.Arabian Am. Oil Co., 499 U.S.
244, 249 (1991).
66. Lauritzen v.Larsen, 345 U.S. 571, 576 (1953).
67. B. Currie, Selected Essays on the Conflict of Laws81.
68. Id.at82.
69. 46 U.S.C. 688 (2015).
635
Similarly, the Americans with Disabilities Act (ADA) provides that [n]o individual shall be
discriminated against because of disability by any person who owns or operates a place of
public accommodation.70
In cases involving such statutes, it falls upon the courts to determine which of the any
and all persons, or which activities, Congress intended to regulate. Courts discharge this task
by employing a process of statutory construction rather commonplace in a federal system by
which courts often have to decide whether any or every reaches to the limits of the enacting
authoritys usual scope or is to be applied to foreign events or transactions.71
In discharging this task, the Supreme Court has employed a variety of principles and techniques, developing certain presumptions or canons of construction. Among them are:(1)the
presumption against extraterritoriality (hereafter territorial presumption), (2)the presumption
of intended compliance with international law, (3)the conduct test, (4)the effects doctrine, and
(5)the effects doctrine tempered by internationalism. These presumptions are discussedbelow.
B. THE TERRITORIAL PRESUMPTION:

THE EARLY VERSION
One of the first major cases involving the extraterritorial reach of a federal statute was The
Apollon,72 decided by none other than Justice Story, the intellectual father of American conflicts
law.73 Influenced by Hubers views on territorial sovereignty, Story wrote that [t]he laws of no
nation can justly extend beyond its own territory, except so far as regards its own citizens.74
Relying on this principle and on the law of nations, Story articulated the following presumption:[H]owever general and comprehensive the phrases used in our municipal laws may be,
they must always be restricted in construction, to places and persons, upon whom the legislature have authority and jurisdiction.75
Courts rigidly applied this territorial presumption throughout the nineteenth century.
Justice Holmes reaffirmed it in even stronger terms in American Banana Co. v. United Fruit
70. 42 U.S.C. 12182(a) (2015).

71. Lauritzen, 345 U.S.at 57879.
72. 22 U.S. (9 Wheat.) 362 (1824).
73.From the rich literature on this presumption, see, inter alia, G. Born, A Reappraisal of the Extra-
Territorial Reach of U.S. Law, 24 Law & Poly Intl Bus. 1 (1992); C. Bradley, Territorial Intellectual Property
Rights in an Age of Globalism, 37 Va. J. Intl L. 505 (1997); W. Dodge, Understanding the Presumption
against Extraterritoriality, 16 Berkeley J.Intl L. 85 (1998); W. Dodge, Extra-Territoriality and Conflict-of-
Laws Theory: An Argument for Judicial Unilateralism, 39 Harv. Intl L.J. 101 (1998); M. Gordon, United
States Extraterritorial Subject Matter Jurisdiction in Securities Fraud Litigation, 10 Fla. J.Intl L. 487 (1996);
L. Kramer, Extraterritorial Application of American Law after the Insurance Antitrust Case: A Reply to
Professors Lowenfeld and Trimble, 89 Am. J. Intl L. 750 (1995); A. Lowenfeld, Conflict, Balancing of
Interests, and the Exercise of Jurisdiction to Prescribe:Reflections on the Insurance Antitrust Case, 89 Am.
J. Intl. L. 42 (1995); J. Turley, When in Rome: Multinational Misconduct and the Presumption against
Extraterritoriality, 84 Nw. U.L. Rev. 598 (1990); R. Weintraub, The Extraterritorial Application of Antitrust
and Securities Laws:An Inquiry into the Utility of a Choice-of-Law Approach, 70 Tex. L.Rev. 1799 (1992).
74. Id. at370.
75. Id.
636
Co.,76 refusing to apply the Sherman Act to an American companys conduct in Costa Rica.
Influenced by the then-prevailing choice-of-law doctrine, Holmes said that [t]he general and
almost universal rule is that the character of an act as lawful or unlawful must be determined
wholly by the law of the country where the act is done.77 Acknowledging that [t]his principle
was carried to an extreme in certain interstate cases, Holmes concluded that for a state to lay
hold of the actor, to treat him according to its own notions rather than those of the place where
he did the acts, not only would be unjust, but would be an interference with the authority of
another sovereign, contrary to the comity of nations.78
C. FOREIGN SHIPS AND THEIR INTERNAL AFFAIRS

The old adage is that a ship is a floating piece of the flag-states territory. If the adage is
legally true, then the question of whether U.S.law applies to foreign ships, even when within
U.S.waters, is a question of extraterritorial application of U.S.lawa question to be answered
through the same canons of construction the Supreme Court has adopted for such cases,
including the presumption against extraterritoriality. Conversely, if the adage is merely a figure
of speech,79 then this becomes a question of straightforward territorial application of U.S.law,
because, at the pertinent time, the ship is within U.S. territory.80 Even under this scenario,
however, the application of U.S. law is not automatic, but rather depends on congressional
intent. In determining this intent, the Supreme Court has adopted a canon of construction that
appears to preserve much of the old floating-territory fiction. The canon effectively exempts
the internal affairs of foreign ships from the reach of American statutes, unless the statute
contains a clear statement to the contrary.81 Thus, whether a U.S. statute applies to foreign
ships in U.S.waters ultimately depends on the precise meaning the Court ascribes to these two
critical phrases.
The American version of the internal affairs doctrine stems from the nineteenth-century
decision known as the Wildenhuss Case.82 In that case, the Supreme Court restated the general
76. 213 U.S. 347 (1909).

77. Id. at356.
78. Id.
79. See Cunard Steamship Co. v. Mellon, 262 U.S. 100, 123 (1923) ([T]he statement sometimes made
that a merchant ship is a part of the territory of the country whose flag she flies is a figure of speech, a
metaphor. It is chiefly applicable to ships on the high seas, where there is no territorial sovereign; and
as respects ships in foreign territorial waters it has little application beyond what is affirmatively or tacitly
permitted by the local sovereign.).
80. See Restatement (Third) of Foreign Relations 512 (1987) ([T]he coastal state has the same sovereignty over its territorial sea as it has in respect of its land territory.). Nevertheless, as explained infra,
when the application of American law requires permanent, non-removable alterations or additions to the
vessel, then such application is both territorial and extraterritorial.
81. See Spector v.Norwegian Cruise Line, Ltd., 545 U.S. 119, 125, (2005) (Our cases hold that a clear
statement of congressional intent is necessary before a general statutory requirement can interfere with
matters that concern a foreign-flag vessels internal affairs and operations[.]). This canon is analogous,
but not identical, to the territorial presumption.
82. Mali v.Keeper of the Common Jail (Wildenhuss Case), 120 U.S. 1 (1887).
637
principle that when a merchant vessel of one country enters the ports of another , it subjects itself to the law of the place to which it goes.83 However, as a matter of international
comity, the latter country may choose to abstain from interfering with the internal discipline of
the ship, and the general regulation of the rights and duties of the officers and crew towards the
vessel, or among themselves.84 Most countries have chosen to leave to the flag country all matters of discipline, and all things done on board, which affect[] only the vessel, or those belonging
to her, and [do] not involve the peace or dignity of the country, or the tranquility of the port.85
Thus, according to Wildenhus, the internal affairs doctrine covers only: (1) matters
involving the ships internal discipline, or (2)other matters that affect only the vessel or those
belonging to her. Even with regard to these matters, however, the doctrine does not apply if the
particular activity affects the peace, dignity, or tranquility of the port. The Wildenhuss Case
itself fell within this exception. The case involved a homicide committed aboard a Belgian ship
while in an American port. Although the incident occurred below deck, and all involved parties and witnesses were Belgian crewmembers, the Court found that the incident was of such
gravity that, once it became known, it might disturb the peace of the port. For this reason, the
Court held that the incident fell outside the scope of the internal affairs doctrine and within
the reach of Americanlaw.
The next internal affairs case, Cunard Steamship Co. v. Mellon,86 involved the question
of whether the 1919 National Prohibition Act (the anti-alcohol statute implementing the
Eighteenth Amendment) applied to U.S.ships while outside U.S.territorial waters, and foreign
ships within U.S.territorial waters. The Court answered the first question in the negative, reasoning that the Act was confined to the physical territory of the United States,87 and dismissed
as a mere figure of speech [or] a metaphor the contention that a merchant ship is a part of
the territory of the country whose flag she flies.88 Then, in addressing whether the Act applied
to foreign ships in U.S.waters, the Court noted:if it were true that a ship is a part of the territory of the country whose flag she carries, the contention would fail. But, as that is a fiction,
we think the contention is right.89 The Court held that the Act prohibited foreign ships from
serving or carrying alcohol in U.S.waters.
The next three internal affairs cases all involved labor disputes affecting foreign ships. In
the first case, Benz v.Compania Naviera Hidalgo, S.A.,90 the Court ruled that the 1947 Labor
Management Relations Act (LMRA)91 did not apply to a dispute arising out of picketing by
American unions in support of the striking foreign crewmembers of a foreign ship temporarily
in an American port. The Court characterized this as a dispute aris[ing] on a foreign vessel
between a foreign employer and a foreign crew operating under an agreement made abroad
83. Id.at11.
86. 262 U.S. 100 (1923).
87. Id. at123.
88. Id.
89. Id. at124.
90. 353 U.S. 138 (1957).
91. See 29 U.S.C. 141 (2015).
638
under the laws of another nation.92 The Court noted the absence of express language declaring the LMRA applicable to foreign ships and crews, but, understanding that such silence did
not necessarily imply a negative answer, the Court defined the pertinent question as one of
intent of the Congress as to the coverage of the Act.93 The Court concluded that Congress did
not fashion [the LMRA] to resolve labor disputes between nationals of other countries operating ships under foreign laws, but rather intended the Act to serve as a bill of rights both for
American workingmen and for their employers.94
The second labor dispute case was in McCulloch v. Sociedad Nacional de Marineros de
Honduras.95 Here, the Court held that under the National Labor Relations Act (NLRA),96 the
National Labor Relations Board (NLRB) did not have authority to order an election for the
unionization of alien seamen recruited in Honduras to serve aboard Honduran flagships. The
Court rebuffed the Boards effort to distinguish this case from Benz on the ground that the
McCulloch ships were part of a fleet ultimately owned by an American corporation (through
foreign subsidiaries) and were frequent visitors to American ports. The Court appeared to reject
a balancing-of-contacts test proposed by the Board, but only because the Court concluded
that, as in Benz, the issue in McCulloch was clearly one that fell within the internal management and affairs of foreign-flag-vessels manned by alien crews.97 The Court also noted that
application of the NLRA would cause a head-on collision with the Honduran Labor Code,
which prohibited the election proposed by the Board. The Court reasoned that under these
circumstances, and with the possibility of international discord,98 the NLRA should not apply
in the absence of an affirmative intention of the Congress clearly expressed.99 Finding no such
intention, the Court held the NLRA inapplicable.
Both Benz and McCulloch involved issues that comprise the very core of a ships internal
affairs, that is, crew discipline. In contrast, the third case, International Longshoremen v.Ariadne
Shipping Co.,100 involved the rights of longshoremen who did not belong to the crew or to the
vessel. Here, the Court found that the case fell outside the scope of the internal affairs doctrine.
The issue in Ariadne was whether the NLRA applied to picketing by American longshoremen
protesting substandard wages paid to them by foreign flagships for work in American ports.
The Court distinguished Benz and McCulloch on the ground that Ariadne involved American
residents, who were employed by each foreign ship not to serve as members of its crew but
rather to do casual longshore work.101 Noting that the longshoremens short-term, irregular
and casual connection with the respective vessels plainly belied any involvement on their part
92. Benz, 353 U.S.at142.

93. Id.
94. Id. at 14344.
95. 372 U.S. 10 (1963).
96. See 29 U.S.C. 151 (2015).
97. McCulloch, 372 U.S.at20.
98. Id.at21.
99. Id.at22.
100. 397 U.S. 195 (1970).
101. Id. at199.
639
with the ships internal discipline and order,102 the Court held that the NLRA was applicable
to the picketing.
The last case arguably involving the foreign affairs of a foreign ship is Spector v.Norwegian
Cruise Line Ltd.103The question in Spector was whether Title III of the Americans with
Disabilities Act of 1990 (ADA)104 applies to foreign flagships while in the territorial waters
of the United States. Title III prohibits operators of places of public accommodation105 and
public transportation services106 from discriminating against disabled persons, and requires
the making of reasonable modifications in policies, practices, or procedures to accommodate
the disabled.107 To this end, Title III also requires removal of architectural barriers, and communication barriers that are structural in nature, when such removal is readily achievable.108
The ships in question in Spector had numerous contacts with the United States. The ships
owner was a Bermuda corporation that had its principal place of business in Florida. Although
the ships carried the Bahamian flag, it was admittedly a flag of convenience. The ships operated cruises out of U.S.ports and carried mostly American passengers, including the plaintiffs
in this case. The cruises were extensively advertised in the United States, and the cruise tickets
stated that any disputes between passengers and the cruise operators were to be governed by
United Stateslaw.
Despite the dominance of American contacts and the presence of significant American
interests, the Fifth Circuit Court of Appeals held that Title III did not apply to these ships
because the court found no indication, either in the statutory text or in the ADAs extensive
legislative history, that Congress intended Title III to apply to foreign-flagged cruise ships.109
The Supreme Court reversed in a six-to-three decision, but the six justices disagreed on the
extent to which the ADA applied. Although six justices joined in the judgment of the Court,
only two parts of Justice Kennedys opinion commanded a majority. Either two or three justices
joined the rest of the opinion.
Justice Kennedy correctly noted that the purpose of the internal affairs doctrine (and thus
the test for employing it) was to presumptively exempt from the reach of U.S. statutes only
those activities that do not implicate the interests of the United States or its citizens, but
do implicate only the internal order and discipline of the vessel, rather than the peace of
the port.110 While acknowledging that these two prongs are not mutually exclusive, Kennedy
concluded that if moderately construed, the ADA would have a minimal impact on matters
claimed to belong to the ships internal affairs. Kennedy noted that the ADA violations the
plaintiffs alleged fell within two categories. The first category consisted of practices such as
102. Id. at200.

103.545 U.S. 119 (2005). Spector is critiqued extensively in S. Symeonides, Cruising in American
Waters:Spector, Maritime Conflicts, and Choice of Law, 37 J. Marit. L.& Comm. 491 (2006).
104. 42 U.S.C. 121811289 (2015).
105. 42 U.S.C. 12182(a) (2015).
106. Id. at 12184(a) (2015).
107. Id. at 12182(b)(2)(A)(ii), 12184(b)(2)(A) (2015).
108. Id. at 12182(b)(2)(A)(iv), 12184(b)(2)(C) (2015).
109. Spector v.Norwegian Cruise Line, 356 F.3d 641, 646 (5th Cir. 2004), revd, 545 U.S. 119 (2005).
110. Spector, 545 U.S.at130.
640
discriminatory pricing, which did not involve the ships internal affairs but did affect American
citizens. He concluded that these practices fell within the territorial scope of the ADA, even in
the absence of a clear statement to that effect.111
The second category of ADA violations could fall within the internal affairs doctrine to the
extent that they involved certain physical features of the ships public areas. For example, most
of the cabins were not accessible to disabled passengers, and the ships coamings (the raised
edges around the doors) rendered many areas inaccessible to persons with mobility impairment. Justice Kennedy noted that these barriers affect the passengers as well as the ship and
its crew.112 This could mean that even if they involved the ships internal affairs, they could
also fall within the Wildenhuss exception insofar as they did not affect only the vessel.113
However, Justice Kennedy took a more restrained route. He reasoned that, if the ADA did
compel removal of these barriers, this would amount to a permanent and significant alteration of an element of basic ship design and construction [and] would interfere with the
internal affairs of foreign ships [because] it might be impossible for a ship to comply with
all the requirements different jurisdictions might impose.114 If this were the case, then [t]he
clear statement rule would most likely come into play,115 meaning that the application of the
ADA would have to be grounded on a finding of clear congressional intent.
However, Justice Kennedy concluded that it was unnecessary to answer the above hypothetical at this junction, due to the possibility that the ADA might not actually require removal
of the above barriers. The ADA requires removal of barriers only when such removal is readily
achievable.116 Kennedy reasoned that achievability should include not only cost or physical
difficulty of removal, but also other factors, such as whether the removal would bring the ship
into noncompliance with international obligations such as those imposed by the International
Convention for the Safety of Life at Sea (SOLAS), or otherwise pose a direct threat to the health
or safety of others.117 Kennedy concluded that these were factual questions to be answered by
the lower court on remand.
Justice Ginsburg, in a concurring opinion joined by Justice Breyer, agreed that the ADA
should not be applied to matters involving a foreign ships internal affairs, but only if such
application would create an actual conflict with international law. Ginsburg went a step further
than Kennedy, reasoning that when there is no potential for international discord,118 and as
long as there is good reason to apply our own law,119 U.S.law should apply, even if the matter
involves the ships internal affairs, and even in the absence of a clear statement of congressional
intent. Justice Ginsburg concluded that the United States had a strong interest in ensuring
111. See id. at 13334. In addition to Justices Stevens and Souter (who joined Justice Kennedys opinion
in all respects), Justices Ginsburg, Breyer, and Thomas seemed to agree with this point, even though they
did not formally join this part of the opinion.
113. See supra text at note 85.
114. Spector, 545 U.S.at135.
115. Id.
116. Id.
117. Id. at136.
118. Id. at 143 (Ginsburg, J., concurring).
119. Id. at145.
641
that U.S.resident cruise passengers enjoy Title IIIs protections on both domestic and foreign
ships, and that, because there was no actual conflict with international legal obligations, there
was no reason to demand a clearer congressional statement that Title III reaches ships that
regularly sail to and from U.S.ports and derive most of their income from U.S.passengers.120
Justice Scalia dissented, reasoning that any structural modifications required by the ADA
qualified as matters of [the ships] internal order121 and that the mere possibility 122 rather
than the actuality of international discord triggers the internal affairs canon. In employing
this canon, the Court should determine whether Congress in fact intended that its enactment cover foreign flagships,123 as opposed to inferring such intent. In Justice Scalias view, this
determination was an all-or-nothing proposition in the sense that the absence of a clear statement would render the ADA inapplicable to all violations alleged by the plaintiffs, including
the discriminatory practices that the plurality found not to involve the ships internal affairs.
D.BILATERALISM:LAURITZEN
AND MARITIME CONFLICTS
During the same period it was refining the internal affairs doctrine, the Court decided a series
of cases delineating the territorial reach of the Jones Act. Enacted in 1920 and speaking in
literal catholicity, this Act provides a remedy to [a]ny seaman124 who suffers an injury in
the course of his employment. Taken literally, the quoted phrase would include foreign seamen injured on foreign vessels in foreign waters, unless courts employ the tools of logical and
teleological interpretation to conclude otherwise.
In the first major case to come before the Court, Uravic v.F. Jarka Co.,125 the plaintiff was an
American seaman (actually a stevedore), injured in U.S.waters aboard a German-flag vessel. The
Court had no difficulty in holding the Jones Act applicable. In so doing, the Court cited both the
Wildenhus and Cunard cases, reasoning that, because Uravic did not involve the ships internal discipline, there was no reason to apply German law. It would be extraordinary, the Court said, to
apply German law to Americans momentarily on board a private German ship in NewYork.126
Next came the landmark case Lauritzen v.Larsen,127 which involved an action by a Danish
seaman for injuries suffered aboard a Danish vessel in Cuban territorial waters. The plaintiff s
only connection with the United States was that he had joined the ship in New York, where
he signed his employment contract. The contract itself, however, was written in Danish and
120. Spector, 545 U.S.119.
122. Id. at153.
124. 46 U.S.C. 688 (2015). (Any seaman who shall suffer personal injury in the course of his employment may maintain an action for damages and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall
apply.).
125. 282 U.S. 234 (1931).
126. Id. at240.
127. 345 U.S. 571 (1953).
642
contained a Danish choice-of-law clause. The Court held that the case fell outside the reach of
the Jones Act, and was governed by Danishlaw.
The long-term importance of Lauritzen lies in the general methodology the Court articulated for resolving Jones Act conflicts (and by extension most other maritime conflicts). The
Court dismissed the plaintiff s argument that, because of the literal catholicity of its terminology128 (i.e., any seaman), the Jones Act applied to this case.129 The Court not only rejected
subservient reliance on the Acts language, but also avoided any pretense of searching for
Congresss actual intent in enacting it. Speaking pragmatically, the Court noted that many statutes, including the Jones Act, give no evidence that Congress addressed itself to their foreign
application.130 Lack of evidence, however, hardly means that Congress intended to proscribe
their foreign application. Rather, it means that Congress chose to leave their application to be
judicially determined from context and circumstance by the courts, which are long accustomed to dealing with admiralty problems in reconciling our own with foreign interests and in
accommodating the reach of our own laws to those of other maritime nations.131
The Court then articulated a multifactor test for determining whether the Jones Act applies
to maritime torts that have foreign elements. Unlike the unilateralist approach the Court followed in internal-affairs cases, the Lauritzen test is a classic multilateralist choice-of-law test. It
calls for ascertaining and valuing points of contact between the transaction and the states or
governments whose competing laws are involved [and] weighing the significance of one or
more connecting factors between the shipping transaction regulated and the national interest
served by the assertion of authority.132 The Court listed seven such connecting factors, one of
which was the law of the flag state. The other six were:(1)the place of wrongful act, (2)the allegiance or domicile of the injured, (3)the allegiance of the defendant shipowner, (4)the place of
the contract, (5)the inaccessibility of the foreign forum, and (6)the law of the forum.133
In the next Jones Act case, Romero v.International Terminal Operating Co.,134 the plaintiff
was a Spanish seaman injured aboard a Spanish-flag vessel while in American waters. He sued
the Spanish shipowner under the Jones Act, as well as under general maritime law. The Court
extended the Lauritzen test to general-maritime-law cases and held American law inapplicable,
despite the fact that the injury occurred in American waters. The emancipation from territoriality was completed.
Hellenic Lines Ltd. v. Rhoditis135 is the last case of the Lauritzen trilogy. Rhoditis was an
action brought by a Greek seaman against a Greek shipowner for injuries suffered aboard a
Greek-flag vessel while in the port of New Orleans. The case was virtually identical to Romero,
128. Id. at576.

129. See id. at 57677 (Unless some relationship of one or more of these to our national interest is
implied, Congress has extended our law and opened our courts to all alien seafaring men injured anywhere in the world in service of watercraft of every foreign nationa hand on a Chinese junk, never
outside Chinese waters, would not be beyond its literal wording.).
130. Id. at577.
131. Id.
132. Id. at582.
133. See id. at 58391.
134. 385 U.S. 354 (1959).
135. 398 U.S. 306 (1970).
643
except for one critical difference. The shipowner, a long-term permanent resident of the United
States, had managed his shipping operations out of an office in the United States. Thus, the
Court found that he had an American base of operations, and this factorwhich the Court
added to the seven Lauritzen factorstipped the scale in favor of applying the JonesAct.
The Court clarified that the Lauritzen test was not a mechanical one, and that [t]he
significance of one or more factors must be considered in light of the national interest served
by the assertion of Jones Act jurisdiction.136 The Court then observed, in language that would
aptly describe the Spector scenario, that the objective was to effectuate the liberal purposes of
the Jones Act while ensuring that shipowners who draw substantial revenue from commerce
with the United States bear their fair share of the concomitant cost. We see no reason, said
the Court, to give the Jones Act a strained construction so that this alien owner, engaged in
an extensive business operation in this country, may have an advantage over citizens engaged
in the same business by allowing him to escape the obligations and responsibility of a Jones
Act employer.137
Although the Lauritzen-Rhoditis test was initially designed for cases involving injuries to
seamen, lower courts have since extended it to virtually all maritime conflicts, including those
involving other torts, collisions, maritime liens, ship mortgages, and limitation of liability.138 In
the meantime, two of the eight Lauritzen-Rhoditis factors have attained increased importance,
while two others have lost ground. Specifically:
(1) The base of operations has emerged as the most common, if not the most decisive,
basis for applying American law139 in maritime conflicts. When the court finds that
the shipowner has such a base in the United States, American law will most likely
govern, even if the other factors do not point to American law. This proposition is confirmed directly by the cases that found an American base of operations, and indirectly
by those that did not.140
(2) Another decisive factor is the U.S.citizenship or domicile of the injured seaman. As
the Lauritzen court stated, the United States has a legitimate interest that its nationals
and permanent inhabitants be not maimed or disabled from self-support.141 For this
reason, cases applying American law to actions of American seamen injured aboard
foreign vessels are quite numerous, even when the vessel is in foreign waters.142 The
136. Id. at 30809.
137. Id. at310.
138. See, e.g., Reino de Espana v.Am. Bureau of Shipping, Inc., 691 F.3d 461 (2d Cir. 2012)(involving
the question of whether a classification society that certifies the seaworthiness of a ship can be held liable
for damage the ship causes to third parties); Carbotrade S.p.A. v. Bureau Veritas, 99 F.3d 86 (2d Cir.
1996)(a dispute between a ship buyer and classification society); Sealord Marine Co. Ltd. v.Am. Bureau
of Shipping, 220 F.Supp.2d 260 (S.D.N.Y. 2002)(a suit against classification society); Galapagos Corp.
Turistica Galatours, S.A.v.The Panama Canal Commn, 190 F.Supp.2d 900 (E.D. La. 2002)(a suit by
shipowner against Panama Canal company); and Gund III v.Philbrooks Boatyard, 374 F.Supp.2d. 909
(W.D. Wash. 2005)(a dispute between boat owner and boatyard for faulty repairs).
139. Hay, Borchers & Symeonides, Conflict of Laws, 102021.
140. For numerous citations, see id. at 102122.
141. Lauritzen, 345 U.S.at586.
142. For numerous citations, see S.Symeonides, supra note 103, at513.
644
same is true of cases applying American law to the actions of American vacationers
injured aboard foreign ships or in foreign resorts in foreign territorial waters.143
(3) The law-of-the-flag factor has become less important because of the growing use of
flags of convenience.144
(4) The shipowners allegianceto the extent it ever existedhas become much less
important because of the prevalent practice of vesting ownership in shell corporations
chartered by countries of convenience.145
E. THE EFFECTS DOCTRINE:FOREIGN

CONDUCT WITHDOMESTIC EFFECTS
Many of the old cases that followed the territorial presumption seemed to assume that it was
mandated by international law, rather than by self-imposed intra-U.S.constraints. For example,
Justice Holmes referred to the comity of nations,146 Justice Marshall to the law of nations,147
Justice Jackson to the prevalent doctrines of international law,148 and Judge Learned Hand to
limitations customarily observed by nations [that] generally correspond to those fixed by the
Conflict of Laws.149 Indeed, despite the prevailing belief that Congress is free to violate international law if it so chooses, the common assumption has been that Congress does not intend
to do so. Consequently, in Justice Marshalls words in Charming Betsy, an act of congress ought
never to be construed to violate the law of nations if any other possible construction remains.150
However, to the extent that the territorial presumption is founded on international law, its
foundation has changed since the nineteenth century. For example, by 1927, the Permanent
Court of International Justice held in The SS Lotus (France v.Turkey)151 that territoriality was
not an absolute principle, and essentially validated the objective territoriality principle or
effects doctrine. Similarly, conflicts law has undergone an even more drastic transformation
143. Seeid.
144. See id. at 514. In 2004, there was only one cruise ship flying the American flag. See Spector
v.Norwegian Cruise Line Ltd., Brief for Petitioners, 2004 WL 2803188 at*32.
145. See Lauritzen, 345 U.S.at 587 ([I]t is common knowledge that in recent years a practice has grown,
particularly among American shipowners, to avoid stringent shipping laws by seeking foreign registration eagerly offered by some countries. Confronted with such operations, our courts on occasion have
pressed beyond the formalities of more or less nominal foreign registration to enforce against American
shipowners the obligations which our law places upon them.); Rhoditis, 398 U.S.at 310 (If the liberal
purposes of the Jones Act are to be effectuated, the facade of the operation must be considered as minor,
compared with the real nature of the operation and a cold objective look at the actual operational contacts
that this ship and this owner have with the United States.) For a collection of similar case statements, see
Symeonides, supra note 103, at514.
146. See supraat note 78.
147. Murray v.Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).
148. Lauritzen, 345 U.S.at577.
149. United States v.Aluminum Co. of Am. (Alcoa), 148 F.2d 416, 443 (2d Cir.1945).
150. Schooner Charming Betsy, 6 U.S. (2 Cranch) at118.
151. P.C.I.J., Ser. A.No. 10 (1927).
645
that has reduced significantly the domain of territoriality as a guiding principle in delineating
the spatial operation of laws.152 In light of these developments, by the middle of the twentieth
century, the territorial presumption was losing ground to the effects doctrine as courts began
to focus on the effects of the conduct at issue, rather than on the place of conduct.
The leading case for what is known now as the effects doctrine was United States
v.Aluminum Company of America (Alcoa),153 an antitrust case decided by Judge Learned Hand.
Historically, however, one of the first articulations of this doctrine was Justice Holmess statement in Strassheim v.Daily154 that [a]cts done outside the jurisdiction, but intended to produce
and producing detrimental effects within it, justify a state in punishing the cause of harm.155
Relying on Strassheim and subsequent cases, Judge Hand stated in 1945 that it was settled
law that any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends.156
He distinguished between two categories of cases involving conduct outside the United
States:(1)those in which the conduct was not intended to produce effects in the United. States
but which produced such effects, and (2)those in which the conduct was intended to produce
such effects but did not produce them. Judge Hand surmised, without deciding, that Congress
probably did not intend the Sherman Act to cover either category. He also concluded, however,
that when, as in Strassheim, both conditions are satisfied157 (i.e., when the foreign conduct is
intended to produce effects in the United States and produces such effects), then the case falls
within the reach of the ShermanAct.
In Timberlane Lumber Co. v. Bank of America N.T. & S.A.,158 the Ninth Circuit moderated the effects doctrine by adding an interest-balancing prong, requiring courts to inquire
whether the interests of, and links to, the United States including the magnitude of the effect
on American foreign commerce are sufficiently strong, vis--vis those of other nations, to
justify an assertion of extra-territorial authority.159 This inquiry should include the following
factors:
[T]he degree of conflict with foreign law or policy, the nationality or allegiance of the parties and
[their] locations, the extent to which enforcement by either state can be expected to achieve
compliance, the relative significance of effects on the United States as compared with those elsewhere, the extent to which there is explicit purpose to harm or affect American commerce, [and]
the foreseeability of such effect.160
152. See S. Symeonides, Territoriality and Personality in Tort Conflicts, in T. Einhorn & K. Siehr (eds.),
Intercontinental Cooperation through Private International Law: Essays in Memory of Peter Nygh 401
(2004).
153. 148 F.2d 416 (2d Cir.1945).
154. 221 U.S. 280 (1911).
155. Id. at284.
156. Alcoa, 148 F.2d at443.
157. Id. at444.
158. 549 F.2d 597 (9th Cir.1976).
159. Id. at613.
160. Id. at614.
646
By evaluating these factors, a court would identify the degree of conflict and then determine whether in the face of it the contacts and interests of the United States are sufficient to
support the exercise of extraterritorial jurisdiction.161
F. THE TERRITORIAL PRESUMPTION,AGAIN

For several years, the common assumption was that the effects doctrine as amended by
Timberlane was the prevailing test for resolving these conflicts. However, in the 1991 case
EEOC v.Arabian American Oil Co. (Aramco),162 the Supreme Court returned to the territorial
presumption. Aramco held that Title VII of the Civil Rights Act of 1964 did not apply to the
allegedly discriminatory employment practices of an American employer against an American
employee in Saudi Arabia. Characterizing this presumption as a longstanding principle of
American law, the Court reiterated that legislation of Congress, unless a contrary intent
appears, is meant to apply only within the territorial jurisdiction of the United States.163 The
Court thought that this presumption serves to protect against unintended clashes between
our laws and those of other nations which could result in international discord.164 The Court
stated:
We assume that Congress legislates against the backdrop of the presumption against extraterritoriality. Therefore, unless there is the affirmative intention of the Congress clearly expressed,
we must presume it is primarily concerned with domestic conditions.165
Finding no such affirmative intention, the Court held that the Civil Rights Act did not
apply extraterritorially. Congress promptly responded by legislatively overruling Aramco and
(re)stating its affirmative intention for the very extraterritorial application the Aramco Court
had rejected.166
G. THE EFFECTS DOCTRINE,AGAIN

In 1993, two years after Aramco, the Supreme Court decided three cases, two of which applied
the territorial presumption.167 However, in the third case, Hartford Fire Insurance Company
v.California,168 decided only one week after the second case, the Court resurrected the effects
doctrine and made no mention of the territorial presumption. Hartford Fire held that Section 1
161. Id. at 61415.
162. 499 U.S. 244 (1991).
163. Aramco, 499 U.S.at248.
164. Id.
165. Id. (internal quotations omitted).
166. See the Civil Rights Act of 1991, 105 Stat. 1077, 42 U.S.C.A 2000e (f)(2015).
167. See Smith v. United States, 507 U.S. 197 (1993) (decided Mar. 8, 1993), and Sale v. Haitian Ctrs.
Council, Inc., 509 U.S. 155 (1993) (decided June 21,1993).
168. 509 U.S. 764 (1993) (decided June 28,1993).
647
of the Sherman Act applied to wholly foreign conduct that was intended to, and did, produce a
substantial effect within the United States.169
The defendants in Hartford Fire were British reinsurers accused of conspiring with
American insurers to limit coverage of certain pollution risks in North America and, generally,
to adversely affect the insurance market in the United States. Supported by the British government appearing as amicus, the defendants argued that their London conduct was perfectly
consistent with British law and policy, applying the Sherman Act to that conduct would conflict significantly with British law and the comprehensive regulatory regime that law provided
for the London reinsurance market, and, consequently, U.S.courts should decline to exercise
jurisdiction under the principle of international comity.
In an opinion written by Justice Souter, the Court held that, because the defendants
London activities were meant to produce, and did in fact produce, substantial effects in the
United States, the case fell within the reach of the Sherman Act. In response to the defendants
comity argument, the Court said that even assuming that in a proper case a court may decline
to exercise Sherman Act jurisdiction over foreign conduct , international comity would not
counsel against exercising jurisdiction170 in this case, which did not present a true conflict171
between American and British law. By true conflict, the Court meant a situation in which one
law compels what the other law prohibits, which is a narrower meaning than the quoted term
has in the conflicts literature.172 The fact that conduct is lawful in the foreign state, said the
Court, will not, by itself, bar application of the United States antitrust laws, even where the foreign state has a strong policy to permit or encourage such conduct.173 Because the defendants
did not claim that British law required them to act in a way that American law prohibited, or
that complying with the laws of both countries was otherwise impossible, there was no conflict and the defendants were perfectly capable of complying with bothlaws.
Justice Scalia, dissenting, found this assertion of no true conflict between American and
British law to be a breathtakingly broad proposition, which would bring the Sherman Act
and other laws into sharp and unnecessary conflict with the legitimate interests of other countries.174 He noted that, in the prevailing conflicts lexicon, there is clearly a conflict whenever
the two laws provide different substantive rules, and that in such a case a conflict-of-laws
analysis is necessary.175
According to Justice Scalia, such an analysis should encompass two independent canons
of construction:(1)Aramcos territorial presumption, and (2)Charming Betsys canon that an
act of Congress should never be construed to violate the law of nations if any other possible
construction remains. Scalia argued that, although the presumption was overcome in this case
169. Section 1 of the Sherman Act (15 U.S.C. 1) provides in part that [e]very contract or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared
to be illegal.
170. Hartford Fire, 509 U.S.at799.
171. Id. at798.
172. In the conflicts literature, a true conflict is present whenever each involved state has an interest in
applying its law, and that law produces a different outcome. See supra10003.
173. 509 U.S.at 799 (citing Restatement (Third) 415, cmt.j).
175. Id. at 82021.
648
(as the defendants conceded), the Court did not satisfy the Charming Betsy canon that:statutes should not be interpreted to regulate foreign persons or conduct if that regulation would
conflict with principles of international law,176 or international comity, which includes the
choice-of-law principles that are assumed to be incorporated into our substantive laws
having extraterritorial reach.177 Relying on Section 403 of the Restatement (Third), Justice
Scalia concluded that an interpretation of the Sherman Act making it applicable to defendants
London activities would be unreasonable.178 This is because the defendants were foreign corporations whose activity took place primarily in the United Kingdom, a country that had established a comprehensive regulatory scheme governing the London reinsurance markets, and
that clearly ha[d]a heavy interest in regulating the activity.179
H. THE EFFECTS DOCTRINE TEMPERED

BYINTERNATIONALISM
In the 2004 case F. Hoffman-La Roche Ltd. v.Empagran S.A.,180 the Supreme Court, in a unanimous decision by Justice Breyer, seemed to take to heart Justice Scalias insistence on considering the interests of other countries.181 Empagran was a complex case involving the scope of the
Foreign Trade Antitrust Improvements Act (FTAIA).182 Enacted in 1982 as an addendum to
the Sherman Act, the FTAIA delineates, and to some extent limits, the extraterritorial reach
of the Sherman Act. Simplified and roughly translated, the FTAIA provides that the Sherman
Act does not apply to certain anticompetitive non-import activity involving foreign commerce,
unless that activity has a direct, substantial, and reasonably foreseeable effect on domestic
U.S.commerce. Lower courts have had difficulty with cases in which this activity produces the
described adverse effects on both domestic and foreign commerce.183 The Sherman Act clearly
176. Id. at815.
177. Id. at817.
178. Id at 818. See also id. at 819 (I think it unimaginable that an assertion of legislative jurisdiction
by the United States would be considered reasonable, and therefore it is inappropriate to assume, in the
absence of statutory indication to the contrary, that Congress has made such an assertion.).
179. Hartford Fire, 509 U.S.at 819. Since Hartford Fire, the Antitrust Division of the U.S. Department of
Justice has increased its use of criminal sanctions against foreign companies acting abroad, as well as the
severity of the sanctions, especially fines. In 1997 and 1998, 90percent of the fines the Division collected
were imposed on foreign companies. In 1999, a year in which the Division collected more fines than in
the entire history of the Sherman Act, almost all of the fines were assessed against foreign companies acting abroad. See D. Ellis, Projecting the Long Arm of the Law:Extraterritorial Criminal Enforcement of
U.S. Antitrust Laws in the Global Economy, 1 Wash. U.Global Stud. L.Rev. 477, 47879 (2002).
180. 542 U.S. 155 (2004).
181. For another internationalist decision rendered after Hartford Fire, see Vimar Seguros Y Reaseguros,
S.A.v.M/V Sky Reefer, 515 U.S. 528 (1995) (enforcing a foreign arbitration clause; discussed supra47677).
182. See 15 U.S.C. 6(a) (2015).
183. The FTAIA is probably one of the most poorly drafted federal statutes. It is inelegantly phrased
and uses rather convoluted language. Turicentro, S.A. v. Am. Airlines Inc., 303 F.3d 293, 300 (3d Cir.
2002). It is therefore understandable that courts have had difficulty interpreting and applying it. However,
one difficulty that should not be attributed to poor drafting is some lower courts insistence on treating
the FTAIA as a jurisdictional statute, even though it does not mention the word jurisdiction, or even
649
applies to the domestic injury, but the lower courts have disagreed as to whether or how it also
applies to the foreign injury caused by the same conduct. In Empagran, the Supreme Court
held that the Sherman Act applies to the foreign injury only if that injury is dependent on the
domestic injury.
Empagran involved several foreign and domestic vitamin sellers, who engineered a worldwide price-fixing scheme that artificially raised vitamin prices both in the United States and
in several other countries. This part of the case involved only the injuries suffered in those
countries, and was based on the factual premise that these injuries were independent of any
injuries the same conduct caused in the United States.184 The Court held that under these circumstances, a purchaser in the United States could bring a Sherman Act claim under the
FTAIA based on domestic injury, but a purchaser in Ecuador could not bring a Sherman Act
claim based on foreign harm.185
In addition to the FTAIAs language and history, the Court based its holding on principles of prescriptive comity,186 which suggest that ambiguous statutes should be construed in
a way that avoids unreasonable interference with the sovereign authority of other nations.187
Particularly in todays highly interdependent commercial world, courts should seek to reconcile potentially conflicting laws to make them work together in harmony and should assume
that legislators take account of the legitimate sovereign interests of other nations when they
write American laws.188 One should not impute to Congress motives of legal imperialism,189
said the Courtat least not in this case, one mightadd.
The Court concluded that, although it is reasonable to apply U.S.antitrust laws to foreign
anticompetitive conduct that causes domestic antitrust injury, it is [not] reasonable to apply
those laws to foreign conduct insofar as that conduct causes independent foreign harm and that
court. Rather the FTAIA tells us when the Sherman Act shall not apply, and (through its exceptions)
when the Sherman Act shall apply. Thus, there should be no doubt that the FTAIA is an expression of
prescriptive or legislative jurisdiction rather than a statute limiting the adjudicatory jurisdiction of federal
courts. One important practical difference between lack of jurisdiction and a merits limitation, is who
must bear the burden of proof. The plaintiff bears the burden of proving the existence of subject matter
jurisdiction in response to a Rule 12(b)(1) motion. In contrast, the defendant bears the burden of proving
a merits limitation through a Rule 12(b)(6) motion for failure to state a claim upon which relief can be
granted. Fortunately, recent cases have begun to recognize the difference between these two types of jurisdiction. See Animal Sci. Prods., Inc. v.China Minmetals Corp., 654 F.3d 462 (3d Cir. 2011), as amended
(Oct. 07, 2011), cert. denied, ___U.S. ___, 132 S.Ct. 1744 (2012); Minn-Chem, Inc. v.Agrium Inc., 683
F.3d 845 (7th Cir. 2012), cert. dismissed, ___U.S. ___, 134 S.Ct. 23 (2013).
184. The plaintiffs argued in the alternative that the foreign injury was dependent on the domestic injury.
See Empagran, 542 U.S. at 175 (because vitamins are fungible and readily transportable, without an
adverse domestic effect (i.e., higher prices in the United States), the sellers could not have maintained
their international price-fixing arrangement and [plaintiffs] would not have suffered their foreign injury.)
The Court remanded the case to the lower court for addressing the plaintiffs alternative argument. For
the case on remand, see Empagran S.A.v.F. Hoffman-La Roche Ltd., 388 F.3d 337 (D.C. Cir.2004).
185. Empagran, 542 U.S.at159.
186. Id. at169.
187. Id. at164.
188. Id.
189. Id. at169.
650
foreign harm alone gives rise to the plaintiff s claim.190 The justification for applying these laws
in the latter case seems insubstantial, said the court, when compared to the serious risk
of interference with a foreign nations ability independently to regulate its own commercial
affairs,191 a risk that was duly brought to the Courts attention by many foreign governments
in their amici briefs.
I. DOMESTIC CONDUCT WITHFOREIGN EFFECTS

AND THEHEADQUARTERS DOCTRINE
Two weeks after Empagran, the Court decided Sosa v.Alvarez-Machain,192 a case involving the
converse scenario, that is, domestic conduct that was intended to, and did, produce effects in
a foreign country. However, Sosa was decided under a different and in some respects peculiar
statute, the Federal Tort Claims Act (FTCA) of 1946. Section 1346(b) of the FTCA waives the
sovereign immunity of the United States for injuries caused by its employees, under circumstances in which the United States would be liable under the law of the place where the act or
omission occurred.193 In the majority of cases, the act or omission produces its injurious effects
in the same state and, for those cases, the quoted phrase is nothing but a restatement of the
traditional lex loci delicti rule. However, this same phrase becomes ambiguous in those cases
in which the conduct and the injury occur in different states (cross-border torts). In the first
FTCA cross-border case to reach the Supreme Court, Richards v. United States,194 the Court
interpreted this phrase as referring to the law of the state of conduct rather than the state of the
resulting injury.195
However, because Richards was an interstate conflict not involving a foreign country, the
Court did not have to consider Section 2680(k) of the FTCA, which contains an exception providing that the waiver of sovereign immunity does not apply to any claim arising in a foreign
country.196 The next two cases, United States v.Spelar197 and Smith v.United States,198 involved
foreign torts. However, in both cases the conduct and the injury both occurred in the same foreign country, leading to the easy conclusion that the resulting claims had aris[en] in a foreign
country, and thus the foreign-country exception was applicable.
190. Id. at165.

191. Empagran, 542 U.S.at 165. (Why should American law supplant, for example, Canadas or Great
Britains or Japans own determination about how best to protect Canadian or British or Japanese customers from anticompetitive conduct engaged in significant part by Canadian or British or Japanese or other
foreign companies?).
192. 542 U.S. 692 (2004) (decided on June 24,2004).
193. 28 U.S.C. 1346(b) (2015) (emphasis added).
194. 369 U.S. 1 (1962).
195. Richards also found that the quoted phrase referred to the whole law of the conduct state, that is,
including its conflicts law, rather than its internallaw.
196. 28 U.S.C. 2680(k) (2015) (emphasis added).
197. 338 U.S. 217 (1949) (action arising out of the crash of an airplane upon takeoff in Nova Scotia).
198. 507 U.S. 197 (1993) (arising from slip-and-fall injury in Antarctica).
651
Following Richards, lower courts encountering foreign cross-border torts focused on the
place of conduct. When the conduct occurred in a foreign country and the injury occurred in
the United States, the courts concluded that the claim arose in a foreign country, thus making the foreign-country exception applicable. Conversely, when the critical conduct occurred
in the United States and the injury occurred abroad, the courts concluded that the claim arose
in the United States, thus rendering the foreign-country exception inapplicable. Most of the
cases of the latter pattern relied on, or can be explained by, a doctrine known as the headquarters doctrine, discussedbelow.
Sosa v.Alvarez-Machain199 fell within the latter pattern to the extent it involved a tort committed partly in the United States and partly abroad. The plaintiff, Alvarez-Machain, a Mexican
national, was kidnapped in Mexico and brought to the United States where he was prosecuted
for allegedly participating in the torture of an American agent of the Drug Enforcement Agency
(DEA) in Mexico. DEA officers planned the kidnapping in the United States and carried it out
through Mexican nationals, including defendant Sosa, whom the DEA hired to for this purpose. Eventually the court acquitted Alvarez, after which he brought a tort action against the
United States under theFTCA.
The Ninth Circuit Court of Appeals held for Alvarez, finding the FTCAs foreign-country
exception inapplicable.200 This case fit the headquarters doctrine like a glove,201 said the
court, because although the operative effect of Alvarezs kidnapping occurred in Mexico, all
of the command decisions about the seizure and removal to the United States occurred in
California,202 where DEA agents hired the Mexican kidnapper and gave them precise instructions203 on how to carry out the kidnapping. The kidnapping was carried out pursuant to the
plan of the United States government officials and the injury, Alvarezs false arrest, occurred
as a direct and intended result of the DEAs plans.204
In an opinion written by Justice Souter, the Supreme Court reversed, rejecting the headquarters doctrine. Approval of this doctrine, said the Court, would make it a standard part of FTCA
litigation in cases involving foreign countries, because it will virtually always be possible to
assert that the conduct that caused the foreign injury was the consequence of faulty training,
selection or supervision in the United States.205 The headquarters doctrine threatens to
swallow the foreign country exception whole 206 because even slip-and-fall cases can be
repackaged as headquarters claims based on failure to train, [or] a failure to warn.207
199. 542 U.S. 692 (2004).

200. See Alvarez-Machain v. United States, 266 F.3d 1045 (9th Cir. 2001); Alvarez-Machain v. United
States, 331 F.3d 604 (9th Cir.2003).
201. Alvarez-Machain, 331 F.3d at638.
204. Alvarez-Machain, 266 F.3d at 105556.
205. Sosa, 542 U.S.at702.
206. Id. at703.
207. Id. at 702. Of course, as the courts below found, this was not a case of faulty training or failure to
warn, but rather one of deliberate planning. The foreign injury occurred as a direct and intended result
of the DEAs plans, (supra, text at note 204) hatched in California. The Court must have read these facts
differently.
652
Another reason for rejecting the headquarters doctrine was the Courts conclusion that
the doctrine is antithetical to the congressional intent embodied in FTCAs foreign-country
exception. To reach this conclusion, the Court assumed that Congress must have intended the
words claim arising in a foreign country in the foreign-country exception of Section 2680(k)
of the FTCA to mean a claim for injury or harm occurring in a foreign country.208 Such intent
was likely, the Court surmised, because at the time of the FTCAs passage, the dominant principle in choice of law analysis for tort cases was lex loci delicti,209 which was understood to
require the application of the law of the place of injury. Then, assuming that the object of this
exception was to avoid the application of foreign law,210 the Court reasoned that the headquarters doctrine would thwart this object because it would displace the exception by recasting
claims of foreign injury as claims not arising in a foreign country.211 In turn, this would lead
to applying foreign law of the place of injury in accordance with the choice-of-law rule of the
headquarters jurisdiction.212 The Court concluded by holding that the FTCAs foreign country
exception bars all claims based on any injury suffered in a foreign country, regardless of where
the tortious act or omission occurred.213
Whether the outcome of Sosa depended, or should depend, on actual congressional intent
is a matter on which reasonable minds can differ. However, the legislative history of the FTCA
casts doubt on whether Congress intended to tie the foreign-country exception to the place
of injury alone.214 It seems that (1)Congress was thinking of the place of conduct, not only in
drafting the main rule of Section 1346(b) but also in drafting the foreign-country exception of
Section 2680(k); and (2)in both cases Congress did not consider the possibility of cross-border
torts. The FTCA was passed with garden-variety torts in mind , such as negligence
in the operation of vehicles.215

209. Id. at705.
210. Id. at 707. For this conclusion, the Court relied on its 1949 decision in Spelar, supra 650, which, however, involved a tort in which both the injury and the conduct had occurred in the same foreign country.
211. Sosa, 542 U.S.at708.
212. Id. Of course, the headquarters doctrine leads to foreign law only when the headquarters jurisdiction (a state of the United States) follows the traditional lex loci delicti rule, or otherwise applies the law of
the place of injury. The Court noted that 10 states still follow the traditional rule, and that even states that
have adopted the modern methodologies tend to apply the law of the place of injury in many cases. The
Court also rejected the idea of a selective headquarters exception for cases in which the headquarters
jurisdiction would not apply foreign law, because this would produce a scheme of federal jurisdiction
that would vary from State to State. Id. at712.
213. Id. at712.
214.In testimony before Congress, the proponent of the foreign-country exception explained that,
[s]ince liability is to be determined by the law of the situs of the wrongful act or omission it is wise to
restrict the [FTCA] bill to claims arising in this country. Assistant Attorney General Shea in Hearings on
H.R. 5373 etal. before the House Committee on the Judiciary, 77th Cong., 2d Sess., 35 (1942) (quoted in
Sosa, 542 U.S.at 707 (emphasis added)).
215. Sosa, 542 U.S. at 707 n. 4. In Richards, the Court found that the legislative history of the FTCA
was not helpful in resolving choice-of-law ambiguities, except in a negative way, for, as is often the
case, Congress did not consider choice-of-law problems, or at least those involved in cross-border torts.
Richards, 369 U.S.at 8.Rather, Congress was preoccupied with typical intrastate torts, such as automobile
653
If the above is true, then the only certainty is that the foreign-country exception applies to
cases such as Spelar in which both the conduct and the injury occurred in a foreign country.
Whether the exception also applies to cross-border torts, at least those involving domestic conduct and foreign injury, is a question that the FTCA text does not answer. The Courts answer
that the exception applies may be the correct one, but it should be understood as a policy choice
rather than as an answer that flows from text or legislative history. Moreover, it is a choice
affected by the political realities of2004.
Be that as it may, the combined effect of Richards, Spelar, and Sosa is as follows:
(1) The United States is amenable to suit for torts in which both the conduct and the
injury occurred in the United States. The specifics are governed by the substantive law
selected under the conflicts law of the state of conduct;and
(2) The United States is immune from suit for torts in which both the conduct and the
injury (Spelar), or only the injury (Sosa), occurred in a foreign country.216
In Gross v. United States,217 another FTCA action, the plaintiff unsuccessfully tried to distinguish Sosa by arguing that his injuries occurred in the United States. The plaintiff was an
American subcontractor of the United States Agency for International Development (USAID),
who was arrested and convicted in Cuba for participating in a subversive project of the U.S.government that aimed to destroy the Revolution.218 Alleging that his arrest in Cuba resulted from
inadequate warnings and training by the USAID, the subcontractor and his wife sued the United
States for the economic losses due to [his] wrongful arrest and continuing wrongful detention,
including the destruction of [his] business, lost income, legal fees, and medical expenses.219 The
plaintiffs argued that their economic injuries occurred exclusively in the United States and were
not derivative of the injuries suffered in Cuba.220 Reasoning that this was just another way
of invoking the headquarters doctrine rejected in Sosa, the D.C. Circuit rejected the plaintiffs
argument, stressing that their economic losses were derivative, rather than primary, because they
were suffered due to [plaintiff s] wrongful arrest and continuing detention in Cuba.221
The plaintiffs also argued that the foreign country exception was unconstitutional, as applied
to them, because it differentiated between two classes of U.S.citizens:those injured abroad and
those injured in the United States. Contending that the sole stated purpose of the exception
was to avoid the application of foreign law, the plaintiffs argued that this purpose would not be
accident cases, in which the negligence and the injury normally occur simultaneously and in a single
jurisdiction. Id.at9.
216. This leaves the cases in which the conduct occurred in a foreign country but the injury occurred in
the United States. As noted earlier, lower courts have held that these cases also fall within the scope of
the foreign-country exception, and thus outside the waiver of the immunity of the United States because,
under Richards, the critical contact was the place of conduct. These cases must be deemed overruled by
Sosas de-emphasis of the place of conduct and holding that the foreign-country exception contemplates
situations in which the injury occurred in a foreign country.
217. 771 F.3d 10 (D.C. Cir. 2014), cert. denied, ___U.S. ___, 135 S.Ct. 1746 (2015).
218. Gross, 771 F.3dat11.
219. Id. (quoting plaintiffs brief) (emphasis added by court).
220. Id.at12.
221. Id.at13.
654
served in their case, which would be governed by American law.222 The D.C. Circuit rejected
this argument, noting that the Supreme Court in Sosa reaffirmed that Congress did not write
the exception to apply only when foreign law would be implicated.223 The court then rejected
the plaintiffs equal protection challenge under the applicable rational basis test.224
In Hernandez v.United States,225 the plaintiffs made the same argument and were equally
unsuccessful. AU.S. Border Patrol agent standing on the U.S.side of the U.S.Mexico border
shot and killed a 15-year-old Mexican boy who was playing on the Mexican side of the border.226 The boys parents sued the United States under the FTCA. In an effort to avoid Sosas
articulation of the foreign-country exception, the plaintiffs argued that, besides the conduct,
the injury also occurred in the United States, reasoning that once the gun has been cocked
and aimed and the finger is on the trigger, it is not necessary to wait until the bullet strikes to
invoke assault.227 Noting that at all relevant times [the victim] was standing in Mexico, the
Fifth Circuit rejected the argument, concluding that the injury was suffered in a foreign country and, thus, the plaintiffs claim was barred by the foreign country exception under Sosa.228
J. THE TERRITORIAL PRESUMPTION

RETURNS INFULLFORCE
The territorial presumption has returned in full force in the two latest decisions of the Supreme
Court on this subject: Morrison v. National Australia Bank Ltd229 and Kiobel v. Royal Dutch
Petroleum Co.230 It is likely to remain the main canon of construction, at least as long as the
222. Id.at14.
224. See Gross, 771 F.3d at 1415. On December 17, 2014, the date President Obama announced the
resumption of diplomatic relations with Cuba, Gross was released from the Cuban prison and returned
to the United States. On December 23, 2014, he reached a $3.2-million settlement with the federal
government.
225. 757 F.3d 249 (5th Cir. 2014), rehg en banc, 785 F.3d 117 (5th Cir.2015).
226. Apparently, this was not the first cross-border shooting incident. See Hernandez, 757 F.3d 249, 269
n.9 (referring to three different incidents in a three-year period in which Border Patrol agents fired from
the U.S.side of the border and killed three persons on the Mexican side of the border).
227. Id. at258.
228. Id. The court also dismissed the plaintiffs ATS claim. The court held that, even assuming the United
States had violated the international prohibition against extrajudicial killings, the plaintiffs still had to
show that the United States had expressly waived sovereign immunity for this claim. Such a waiver must
be unequivocally expressed in statutory text and will not be implied, said the court, and [n]othing in the
ATS indicates that Congress intended to waive the United States sovereign immunity. Id. at 258 (quotation marks omitted). Other circuits have taken the same position. See, e.g., Tobar v. United States, 639
F.3d 1191, 1196 (9th Cir. 2011); Goldstar (Pan.) S.A.v.United States, 967 F.2d 965, 968 (4th Cir. 1992);
Sanchez-Espinoza v.Reagan, 770 F.2d 202, 207 (D.C. Cir. 1985). Finally, the court dismissed the plaintiffs
Bivens action against the Border Patrol officer, holding that the victim lacked sufficient voluntary connections with the United States to invoke the Fourth Amendment, and the officer had qualified immunity
from a Fifth Amendment excessive forceclaim.
229. 561 U.S. 247 (2010).
230. ___ U.S. ___, 133 S.Ct. 1659 (2013).
655
Court maintains its present ideological composition. The two cases involved the application
of two different statutes, the Securities Exchange Act and the Alien Tort Statute, respectively.
1. The Securities ExchangeAct

Morrison held that Section 10(b) (the antifraud provision) of the Securities Exchange Act
(SEA) of 1934231 did not apply to actions brought by foreign plaintiffs against foreign defendants (and incidental American defendants) for misconduct primarily occurring abroad and
involving securities traded on foreign exchanges. The plaintiffs were Australian investors who
purchased shares of defendant National Australia Bank (NAB), an Australian bank, outside the
United States. The plaintiffs alleged that a Florida company acquired by NAB had knowingly
overstated its value and that, rather than timely correcting the overstatement, NAB executives
used it to their advantage, thus artificially inflating the value of NABs own shares, which the
plaintiffs purchased. The district court dismissed the actions and the Second Circuit affirmed,
reasoning that the Florida companys overstatement was a minor factor in the chain of a fraudulent scheme that had been hatched and executed abroad and had injured only foreign investors
in transactions outside the United States. Thus, the case did not satisfy either the domestic-
conduct or the domestic-effects tests, which lower courts had used to delineate the extraterritorial reach of the SEA and other federal statutes that are silent on their extraterritorialreach.
In an opinion written by Justice Scalia, the Supreme Court affirmed the result but on different grounds. The Court reaffirmed in the strongest possible terms the presumption against the
extraterritorial application of federal statutes, using the catchphrase When a statute gives no
clear indication of an extraterritorial application, it has none.232 Reciting its earlier statement
in Aramco that legislation of Congress, unless a contrary intent appears, is meant to apply only
within the territorial jurisdiction of the United States, the Morrison court explained that the
territorial presumption:
(1) Is a presumption about a statutes meaning, rather than a limit upon Congresss power
to legislate, and rests on the perception that Congress ordinarily legislates with
respect to domestic, not foreign matters;233
(2) Is not a clear statement rule (i.e., it allows consideration of context),234 but can be
negated only by an affirmative intention of the Congress clearly expressed to give a
statute extraterritorial effect;235and
(3) Applies regardless of whether there is a risk of conflict between the American statute
and a foreign law.236
231. Section 10(b) provides in part:It shall be unlawful for any person , [t]o use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security
not so registered, any manipulative or deceptive device or contrivance in contravention of such rules
and regulations as the [Securities and Exchange] Commission may prescribe . 15 U.S.C. 78j(b) (2015).
232. Morrison, 561 U.S.at255.
233. Id.
234. Id. at265.
236. Id.
656
The Court criticized the lower court for ignoring this presumption and instead attempting to discern congressional intent through the effects test and the conduct test, without
put[ing] forward a textual or even extratextual basis for these tests.237 Characterizing these
tests as judicial-speculation-made-law and unpredictable in application, the Court repudiated them both and adopted instead a bright-line rule based on a clear indication of an
extraterritorial application contained in the statute itself.238
Focusing on the statute in question, SEA Section 10(b), the Court found no affirmative
indication that it applies extraterritorially.239 The Court specifically rejected the argument
that the statute reaches conduct in this country affecting exchanges or transactions abroad,240
not even when the fraud scheme involves significant conduct in the United States that is material to the frauds success.241 Dismissing the danger of the United States becoming a Barbary
Coast for malefactors perpetrating frauds in foreign markets, the Court admonished that
the courts job was to give the statute the effect its language suggests, not to extend it to
admirable purposes it might be used to achieve.242 The fact that the United States could assert
prescriptive jurisdiction pursuant to the significant material conduct test proffered by the
Solicitor General, said the Court, in no way tends to prove that that is what Congress has
done with this statute.243 The language of Section 10(b) punishes not all acts of deception,
but deception with respect to certain purchases or sales, said the Court, namely, sales of a
security listed on an American stock exchange, and the purchase or sale of any other security
in the United States.244 Because this case did not involve U.S.-listed securities or domestic purchases or sales of foreign securities, the case fell outside the statutes territorialreach.
The old adage is that hard cases make bad law.245 However, Morrison was not a hard case,
but rather a bad case that made bad law. Morrison was a case that never should have been
brought, certainly not to the Supreme Court, after the plaintiffs lost in both courts below. As
Justice Stevens noted in his concurrence, the case had Australia written all over it.246 The
Court could have easily disposed of it under its established jurisprudence without a broad
repudiation of the conduct test, which the case did not meet because, as the lower courts found,
the U.S. conduct was insignificant.247 Moreover, even if the territorial presumption had been
237. Id. at258.

238. Id. at 248,255.
239. Id. at248.
240. Id. at269.
241. Id. at270.
242. Id.
243. Id. at272.
244. Id. at272.
245. Winterbottom v.Wright, (1842) 10 M&W 109 at 116, 109, 152 E.R. 402 at 407 (Hard cases are
apt to introduce bad law); Northern Sec. Co. v.United States, 193 U.S. 197, 24 S.Ct. 436, 468 (1904),
(Holmes, J., dissenting) (Great cases, like hard cases, make badlaw).
246. Morrison, 561 U.S.at 286 (Stevens, J., concurring).
247. The same can be said about the majoritys general repudiation of the effects test. The test was not
implicated at all in Morrison because the case did not involve effects in the United States. In that sense,
one could argue that the majoritys pronouncements on this point are dicta. On the other hand, the majoritys conclusion that Section 10(b) applies to domestic transactions affected by foreign fraud suggests that
657
overcome so as to make Section 10(b) applicable in principle, the majority could have held this
section inapplicable in the particular case under the second prong of Justice Scalias dissent
in Hartford Fire,248 that is, out of deference to Australias legitimate regulatory interests. Even
if the majority was right to conclude that the particular statute involved in Morrison, Section
10(b), did not leave room for the conduct test, there was no good reason to generalize with
regard to other statutes. More important, the conduct test, far from contravening the territorial
presumption, is entirely consistent with it. When a court applies a federal statute to conduct
occurring in the United States, the court applies the statute not extraterritorially but rather territorially. One can cite many policy reasons for such an application and perhaps some against
it, but the presumption against extraterritoriality is not among the latter.
As with Aramco, which Congress swiftly repudiated, Congress promptly responded to the
Morrison courts invitation to legislate with predictable effects.249 Predictably indeed, Congress
amended the Securities Exchange Act by adding the following language:
The district courts of the United States . . . shall have jurisdiction of an action or proceeding
brought or instituted by the [Securities Exchange] Commission or the United States alleging a
violation of the antifraud provisions of this title involving
(1)[C]onduct within the United States that constitutes significant steps in furtherance of the
violation, even if the securities transaction occurs outside the United States and involves
only foreign investors;or
(2)[C]onduct occurring outside the United States that has a foreseeable substantial effect
within the United States.250
Although this amendment resurrects or restates both the conduct and effects tests, it does
so only with regard to actions brought by the Securities Exchange Commission (SEC) or the
Department of Justice. With regard to private SEA actions, Morrison remains intact, at least
for now.251
In United States v.Vilar,252 the Second Circuit held that Section 10(b) of the SEA has the
same territorial reach in criminal prosecutions as it has in civil cases under Morrison.253 As
the effects test has survived Morrison, even if the survival is grounded more on legislative language than
judicial inference. If so, it would be ironic to repudiate the conduct test but leave intact the effectstest.
248. See Hartford Fire Ins. Co. v.California, 509 U.S. 764, 814 et seq. (1993) (Scalia, J., dissenting).
249. Morrison, 561 U.S.at261.
250. Dodd-Frank Wall Street Reform and Consumer Protection Act (Reform Act), Title IX (Investor
Protection Act), 929P(b), 111th Cong. 2d Sess., amending Section 27 of the Securities Exchange Act of
1934 (15 U.S.C. 78aa).(2015)
251. The amendment uses the inaccurate terminology of adjudicatory jurisdiction (which Justice Scalia
correctly criticized in Morrison) rather than prescriptive jurisdiction, which is clearly what Congress
intended. Yet, even Justice Scalia would probably agree that, despite the lack of textual support
(Morrison, 561 U.S.at 270), Congresss intent to negate Morrisons territorial presumption cannot be seriously questioned. In fact, this inexactness of congressional language, which is far from unusual, illustrates
the inherent flaws of a test that relies too much on text.
252. 729 F.3d 62 (2d Cir. 2013), cert. denied, 2014 WL 1669332 (May 27,2014).
253.The Vilar defendants were convicted on several counts of securities fraud before Morrison. They
subsequently challenged their convictions on the ground that the conduct underlying their convictions
658
the court put it, the general rule is that the presumption against extraterritoriality applies to
criminal statutes, and Section 10(b) is no exception.254 The presumption is a method of interpreting a statute, which has the same meaning in every case, not a rule to be applied to the
specific facts of each case.255 Astatute either applies extraterritorially or it does not, and as
the Supreme Court interpreted Section 10(b) to apply only to securities listed on an American
stock exchange and securities purchased or sold in the United States, [t]o permit the government to punish extraterritorial conduct when bringing criminal charges under Section 10(b)
would establish the dangerous principle that judges can give the same statutory text different meanings in different cases.256
The Vilar court did not discuss the above-quoted amendment of Section 10(b), apparently
because the defendants conduct occurred before passage of the amendment, which authorizes
the SEC to enforce Section 10(b) extraterritorially. Because this amendment was a reaction
to Morrison, which involved civil enforcement, one might argue that Congress contemplated
only civil enforcement. But the text of the amendment does not contain such a limitation and,
according to the Vilar courts logic, a statute either applies extraterritorially or it does not, in
both civil and criminal cases. In the final analysis, therefore, the impact of Vilar in future criminal prosecutions of securities fraud may be limited. What remains from Vilar is the unnecessarily categorical general pronouncement that the presumption against extraterritoriality must
necessarily apply with the same force in both criminal and civil cases. That pronouncement will
have to be tested in futurecases.
2. The Alien Tort Statute(ATS)

a.Sosa
Sosa also involved a claim under the Alien Tort Statute (ATS)257the plaintiff s tort action
against his Mexican kidnapper, Sosa. The ATS is a very old statute (enacted in 1789), which
has acquired added significance in recent years. It conferred on federal district courts original
jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of
nations or a treaty of the United States.258 Although the ATS did not expressly create a cause
of action, the courts have interpreted it as creating an independent private cause of action for
violations of well-established, universally recognized, and obligatory norms of international
law that were understood as such at the time of the statutes enactment.259 Following a 1980
decision of the Second Circuit in Filartiga v.Pena-Irala,260 federal courts routinely applied the
was extraterritorial and thus beyond the reach of Section 10(b). The court upheld the convictions, after
finding that the defendants committed fraud in domestic securities transactions.
254. Vilar, 729 F.3d.at74.
255. Id.
257. 28 U.S.C. 1350 (also known as Alien Tort Claims Act (ATCA) (2015).
258. Id.
259. See Sosa v.Alvarez-Machain, 542 U.S. 692 (2004), discussed supra65152.
260. 630 F.2d 876 (2d Cir.1980).
659
ATS to cases involving extraterritorial conduct.261 The Ninth Circuit did the same in Sosa. It
upheld a judgment for the plaintiff, holding that American federal common law would govern
his right to damages.262
The Supreme Court reversed, holding that the plaintiff did not have an action under the
ATS. The Court found that the ATS authorized federal courts to entertain only a relatively
modest set of actions263 that were recognized by both the law of nations and the general
American common law of the time the ATS was enacted (in 1789). By focusing on prevailing views and practices of that time, the Court identified three offenses that met both criteria: offenses against ambassadors, violations of safe conduct , and individual actions
arising out of prize captures and piracy.264
The Court rejected Justice Scalias argument that, by declaring that federal courts had no
authority to create general common law, Erie close[d]the door to further independent judicial recognition of actionable international norms.265 Rather, the Court said, the door is still
ajar subject to vigilant doorkeeping.266 As the doorkeeper, the Court cautioned lower courts
to not recognize private claims under federal common law for violations of any international
law norm with less definite content and acceptance among civilized nations than the historical
paradigms familiar when [the ATS] was enacted.267 The Court concluded that Alvarezs claim
failed to satisfy this standard because his kidnapping was, after all, no more than a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a
prompt arraignment, [and as such it] violates no norm of customary international law so well
defined as to support the creation of a federal remedy.268
Justice Scalia wrote a concurring opinion in order to subtract from the majority opinion
its reservation of a discretionary power in the Federal Judiciary to create causes of action
for the enforcement of international-law-based norms.269 After suggesting that, as a matter
of original intent, the ATS was not meant to provide any private cause of action, Scalia noted
that, even if the pre-Erie general common law had authorized private actions, Erie closed
that door. Thus, the question now was not whether to leave the door ajar, but rather whether
261. See, e.g., Flomo v.Firestone Natl Rubber Co., LLC, 643 F.3d 1013, 1025 (7th Cir. 2011)([N]o court
to our knowledge has ever held that [the ATS] doesnt apply extraterritorially.). For representative cases
involving claims for international law violations in the countries shown in parentheses, see Sosa v.Alvarez-
Machain, 542 U.S. 692 (2004) (Mexico); Sarei v.Rio Tinto, PLC, 456 F.3d 1069 (9th Cir. 2006)(Papua New
Guinea); Arce v.Garcia, 434 F.3d 1254 (11th Cir. 2006)(El Salvador); Gonzalez-Vera v.Kissinger, 449 F.3d
1260 (D.C. Cir. 2006), cert. denied, 547 U.S. 1206 (2007) (Chile); Aldana v.Del Monte Fresh Produce, 416
F.3d 1242 (11th Cir. 2005), cert. denied, 549 U.S. 1032 (2006) (Guatemala); Kadic v.Karadzic, 70 F.3d 232
(2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996) (Bosnia); Filartiga v.Pena-Irala, 630 F.2d 876 (2d Cir.
1980)(Paraguay); In re Estate of Marcos Human Rights Litig., 978 F.2d 493 (2d Cir. 1991); Hilao v.Estate
of Marcos, 103 F.3d 767 (9th Cir. 1996)(Philippines).
262. See Alvarez-Machain v.United States, 266 F.3d 1045 (9th Cir.2001).
263. Sosa, 752 U.S.at720.
264. Id.
265. Id. at729.
266. Id.
267. Id. at732.
268. Id. at738.
269. Sosa, 752 U.S.at 739 (Scalia, J., dissenting).
660
to open a new door of federal common law. After lamenting the phenomenon of unelected
federal judges usurping [Congresss] lawmaking power by converting what they regard as
norms of international law into American law,270 Scalia criticized the majority for being incapable of admitting that some mattersany mattersare none of its business, and characterized the majority decision as a victory of the Never Say Never Jurisprudence.271
This language, as well as the majoritys reference to ajar doors and vigilant doorkeeping, have affected not only the substanceas one should expectbut also the rhetoric of
lower court decisions. For example, one court characterized the ATS as an area that is so ripe
for non-meritorious and blunderbuss suits272 and found it necessary to quote a statement by
President Bush about overburdening courts with ill-founded or politically motivated suits,
which have nothing to do with the United States.273
b.Kiobel
In Kiobel v.Royal Dutch Petroleum Co.,274 the Supreme Court almost completely closed the ATS
door that Sosa left ajar. The underlying conduct in Kiobel occurred in Nigeria. According to
the complaint, certain Dutch, British, and Nigerian corporations (the defendants) aided and
abetted the Nigerian government in committing human rights abuses in violation of the law of
nations.275 Writing for a majority of five, Chief Justice Roberts concluded that nothing in the
ATS text rebutted the presumption against extraterritoriality. The reference to aliens did not
imply extraterritorial reach because such violations affecting aliens can occur either within
or outside the United States.276 Neither did the words any civil action suggest application to
torts committed abroad, because generic terms like any or every do not rebut the presumption against extraterritoriality.277
270. Id. at750.

271. Id.
272. In re South African Apartheid Litig., 2004 WL 2722204 at *8 (S.D.N.Y.2004).
273. Id. (quoting Statement of President George H.W. Bush upon Signing H.R. 2092, 1992 U.S.C. 91
(Mar. 12, 1992)).
274. ___ U.S. ___, 133 S.Ct. 1659 (2013).
275. The Second Circuit dismissed the complaint on a rather surprising ground:that the law of nations
does not recognize corporate liability. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir.
2010). The Supreme Court granted a writ of certiorari because six other circuits disagreed with the Second
Circuit on the issue of corporate liability. See Doe VIII v.Exxon Mobil Corp., 654 F.3d 11, 41 (D.C. Cir.
2011), vacated on other grounds, 527 Fed. Appx 7 (D.C. Cir. 2013); Aziz v.Alcolac, Inc., 658 F.3d 388 (4th
Cir. 2011); Flomo v.Firestone Natl Rubber Co., LLC, 643 F.3d 1013, 102021 (7th Cir. 2011); Sarei v.Rio
Tinto, PLC, 671 F.3d 736 (9th Cir. 2011), vacated on other grounds 133 S. Ct. 1995 (2013); Sinaltrainal
v.Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009); Beanal v.Freeport-McMoran, Inc., 197 F.3d 161 (5th
Cir. 1999). After oral argument, the Court asked the parties to brief the issue of extraterritoriality and
decided the case on that basis, leaving unresolved the circuit split on the issue of corporate liability. But
see Doe Iv. Nestle USA, Inc., 738 F.3d 1048, at 1049 (9th Cir. 2013)(interpreting Kiobel as suggesting in
dicta that corporations may be liable under ATS so long as presumption against extraterritorial application is overcome.).
276. Kiobel, 133 S.Ct. at1665.
277. Id.
661
Turning to the ATSs history, the Court concluded that [n]othing about th[e] historical
context [of the ATS] suggests that Congress intended to provide a cause of action for
conduct occurring in the territory of another sovereign.278 The Court noted that, at the time
Congress passed the ATS, Blackstone had identified three principal offenses against the law
of nations: (1) violation of safe conduct, (2) infringement of the rights of ambassadors, and
(3) piracy. The first two of those offenses have no necessary extraterritorial application,279
and two episodes involving the second offense had occurred in the United States shortly before
Congress passed the ATS. The Court concluded that these contemporary examples provided
no support for the proposition that Congress expected causes of action to be brought under
the statute for violations of the law of nations occurring abroad.280
The third offense, piracy, is by definition extraterritorial because it typically occurs on
the high seas, beyond the territorial jurisdiction of the United States or any other country.281 However, applying U.S. law to pirates does not typically impose the sovereign will of
the United States onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences.282 Pirates are fair game
and may well be a category unto themselves.283 The fact that the ATS allows a tort action
against them for their acts on the high seas is [not] a sufficient basis for concluding that other
causes of action under the ATS reach conduct that does occur within the territory of another
sovereign.284
The Court rejected the notion that Congress passed the ATS to provide a uniquely hospitable forum for the enforcement of international norms.285 After quoting Joseph Storys phrase
that [n]o nation has ever yet pretended to be the custos morum of the whole world,286 the
Court noted that, if the United States were to apply the ATS to conduct occurring abroad,
other countries could hale our citizens into their courts for alleged violations of the law of
nations occurring in the United States, or anywhere else in the world.287 The presumption
against extraterritoriality protects the United States from this eventuality by guard[ing] against
our courts triggering such serious foreign policy consequences.288
Returning to the facts of the case, the Court concluded that the plaintiffs failed to rebut the
presumption against extraterritoriality because all the relevant conduct took place outside the
United States, and the defendants contacts with the United States consisted of mere corporate
presence without anything else.289 However, in the penultimate sentence of the opinion, the
278. Id. at 166869.
279. Id. at1666.
280. Id. at1667.
281. Id.
282. Kiobel, 133 S.Ct. at1667.
283. Id.
284. Id.
285. Id. at1668.
286. Id. (quoting United States v. The La Jeune Eugenie, 26 F. Cas. 832, 847 (No. 15,551) (C.C. Mass.
1822)).
287. Id. at1669.
288. Kiobel, 133 S.Ct. at1669.
289. Id.
662
Court indirectly suggested that that plaintiffs can rebut the presumption if their claims touch
and concern the territory of the United States, [and] do so with sufficient force.290
In his concurring opinion, Justice Kennedy appeared open to the possibility of a less restrictive interpretation of the ATS for serious violations of international law principles in cases
not covered by the Courts holding and reasoning. He noted that, for those cases, the proper
implementation of the presumption against extraterritorial application may require some further elaboration and explanation.291 Justice Breyer, in a concurring opinion joined by Justices
Ginsburg, Sotomayor, and Kagan, took a further step. He would apply the ATS,if:
(1) the alleged tort occurs on American soil, (2)the defendant is an American national, or (3)the
defendants conduct substantially and adversely affects an important American national interest,
and that includes a distinct interest in preventing the United States from becoming a safe harbor
(free of civil as well as criminal liability) for a torturer or other common enemy of mankind.292
c.Post-
KiobelCases
Understandably, Kiobels penultimate sentence has become the central focus of most post-
Kiobel litigation as lower courts struggled to determine which ATS claims touch and concern
the territory of the United States with sufficient force to rebut the presumption against
extraterritoriality. This section discusses the few appellate cases decided since Kiobel.
Mastafa v. Chevron Corp.,293 a Second Circuit decision authored by Judge Cabranes who
also authored the lower court opinion in Kiobel,294 contains the most extensive (and most stringent) articulation of the test for applying the ATS. The test seems to track Justice Alitos concurring opinion in Kiobel rather than the majority opinion. The Mastafa plaintiffs were Iraqis who
claimed that the defendants (Chevron, an American oil company, and BNP Paribas, a French
bank) aided and abetted the Saddam Hussein regime in subjecting the plaintiffs and their families to several human rights abuses in Iraq by helping the regime evade sanctions imposed by
the United Nations Oil for Food Program.295
290. Id. The exact sentence is as follows:And even where the claims touch and concern the territory of
the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.
291. Id. (Kennedy, J., concurring).
292. Id. at 1671 (Breyer, J., concurring).
293. 770 F.3d 170 (2d Cir.2014).
294.In Kiobel, Judge Cabranes held that corporations could not be liable for international law violations and thus could not be sued under the ATS. In Mastafa, both defendants were corporations. Judge
Cabranes noted that the Supreme Court, in Kiobel, did not address, much less question or modify,
the holding on corporate liability under the ATS that had formed the central conclusion in the Second
Circuits Kiobel opinion. Id. at 177. Because the court disposed of the Mastafa case on other grounds,
there was no need to reexamine the issue now. Id. at 179,n.5.
295.In Republic of Iraq v.ABB AG, 768 F.3d 145 (2d Cir. 2014), the new Iraqi government installed after
the war sued Chevron, BNP, and about 50 other companies, under the Racketeer Influenced and Corrupt
Organizations Act (RICO Act) and the Foreign Corrupt Practices Act (FCPA) for conspiring with the
Hussein regime to evade the UN sanctions and plunder the Oil for Food Program. The court held that
the doctrine of in pari delicto was a valid defense to a civil RICO claim, and that any wrongs committed
663
The Second Circuit combined the minimal guidance provided by the Kiobel majority with
the so-called focus test applied in Morrison.296 In Morrison, the Court focused on the territorial event or relationship that the particular statute intends to regulate.297 In that case, the
focus of the statute (the Securities Exchange Act) was on purchases and sales of securities in
the United States, rather than on the place where the deception originated.298 In ATS cases,
the Second Circuit reasoned, the focus should be on the conduct of the defendant which is
alleged by plaintiff to be either a direct violation of the law of nations or conduct that constitutes aiding and abetting anothers violation of the law of nations.299 This text consists of two
prongs, which one might call geographical and substantive. First, the court must determine
whether the conduct touches and concerns the territory of the United States with sufficient
force to displace the presumption against extraterritoriality. Second, the court must determine,
at least preliminarily, whether the conduct in fact constitutes a violation of specific, universal,
and obligatory norms of international law, as to fall within the substantive scope of the ATS.300
In these determinations, neither the U.S.citizenship of defendants, nor their presence in
the United States, is of relevance.301 While acknowledging that other circuits have held otherwise, the court disagree[d]with the contention that a defendants U.S. citizenship has any
relevance.302 An ATS complaint cannot be saved, the court said, simply because a U.S.citizen happened to commit the alleged violation, nor would the complaint fail solely because the
violator was a foreign national rather than a U.S.citizen.303
The court found that the conduct alleged in this case satisfied the geographical prong of
the above testnamely, it touched and concerned the United States with sufficient force to
displace the presumption against extraterritoriality. With regard to Chevron, the critical factor
was neither its incorporation nor the location of its headquarters in the United States, both of
which were immaterial,304 but rather its conduct in the United States that aided and abetted
by the Hussein regime were attributable to the new Iraqi government. The court also held that the FCPA
did not create a private right of action.
296. 561 U.S. 247 (2010).
297. Id. at266.
298. Id.
299. Mastafa, 770 F.3d at185.
300. Id. at 18586.
301. Id. at188.
303. Id. In Balintulo v.Daimler AG, 727 F.3d 174 (2d Cir. 2013), another ATS opinion authored by Judge
Cabranes, some of the defendants were U.S.corporations accused of aiding and abetting the commission
of human rights abuses during South Africas apartheid regime. Relying on this fact, the plaintiffs argued
that Kiobel did not preclude the application of the ATS because the U.S. nationality of the defendants
touch[ed] and concern[ed] the United States with sufficient force to displace the presumption against
extraterritoriality. Id. at 189. The Second Circuit rejected the argument and concluded that the [Kiobel]
Court did not suggest that a defendants citizenship has any relevance to the presumption against extraterritoriality, and its reference to claims that touch and concern the United States was mere dicta. Id. at
190. Instead, Kiobel adopted a bright-line test, stat[ing] over and over that the ATS bars suits where the
relevant conduct occurs abroad. Id. (emphasis in original).
304. Mastafa, 770 F.3d at190.
664
Saddam Husseins regime by helping it evade U.N.sanctions.305 With regard to BNP, the critical
factor was its banking arrangements and transactions in NewYork, which facilitated the evasion of the U.N.sanctions.306
However, the court found that the U.S.conduct of both corporations failed the substantive
prong of the test, because it did not meet the Second Circuits mens rea standard for ATS aiding and abetting liability. According to this standard, the abettor must provide practical assistance that has substantial effect on the perpetration of the crime, and must do so with the
purpose of facilitating the commission of that crime.307 In this case, the plaintiffs had to allege
facts showing that the defendants acted with the purpose to advance the [Hussein regimes]
human rights abuses, not whether defendants merely knew that those abuses were occurring and that defendants business was enabling such acts.308 Thus, the fact that the defendants
intentionally flouted the [U.N.] sanctions regime for profit, or that they knew their actions
were in violation of international law were irrelevant.309 The plaintiffs failed to allege
specifically facts showing that the defendants intended to aid and abet violations of customary
international law carried out by the Saddam Hussein regime.310
In Al Shimari v.CACI Premier Technology, Inc.,311 the plaintiffs were foreign nationals who
were tortured in Iraqs Abu Ghraib prison by American interrogators working for the defendants, who were American military contractors.312 Because the case had several significant connections with the United States, but also because the Fourth Circuit adopted a broader test for
determining the territorial reach of the ATS, it was easier for the plaintiffs to overcome the
presumption against extraterritoriality. The court did not incorporate Morrisons focus test,
and instead noted that Kiobel broadly stated that the claims, rather than the alleged tortious
conduct, must touch and concern United States territory with sufficient force.313 This reference
to claims meant that courts must consider all the facts that give rise to ATS claims, including
the parties identities and their relationship to the causes of action.314
As evidence that the use of such broad terminology was not happenstance, the court
pointed to Justice Alitos concurring opinion, which had proposed a more circumscribed
standard (not adopted by the Kiobel majority) that would focus only on the domestic tortious
305. See id. (describing Chevrons purchase and financing of 2million barrels of Iraqi oil through intermediaries in the United States, and its collecting of the resulting profits in the United States).
306. See id. at 19091.
307. Id. at 191 (quoting Presbyterian Church of Sudan v.Talisman Energy, Inc., 582 F.3d 244, 277 (2d Cir.
2009)) (emphasis added by Mastafa court).
308. Id. at 193 (quotations omitted).
309. Id.
310. Id.
311. 758 F.3d 516 (4th Cir.2014).
312. The plaintiffs did not have a remedy under the TVPA because it does not apply to corporate defendants and, with regard to individual defendants, provides a remedy only if the torture was conducted
under actual or apparent authority, or color of law, of any foreign nation. Pub. L.No. 102-256, 106
Stat. 73, n.following 28 U.S.C. 1350 (2015) (emphasis added).
313. Al Shimari, 758 F.3d at 527 (emphasis added).
314. Id.
665
conduct.315 The Fourth Circuit concluded that this case satisfied Kiobels touch and concern
language because it had substantial ties316 to U.S.territory to rebut the presumption against
extraterritoriality of the ATS. The court provided a long list of those ties, which included not
only the American citizenship or incorporation of the interrogators and their principals, but
also significant acts in the United States that amounted to a tacit approval ofor an attempt to
cover upthe Abu Ghraib torture.317
In Doe Iv. Nestle USA, Inc.,318 the plaintiffs were former child slaves forced to harvest cocoa
in the Ivory Coast. They filed ATS actions against four American companies alleging that
they aided and abetted child slavery by (1)providing financial and non-financial assistance to
Ivorian farmers, and (2)lobbying the U.S. Congress to prevent the enactment of legislation that
would discourage such practices.
In an opinion written by Judge Nelson, the Ninth Circuit reaffirmed its earlier holding that
corporations can be liable for violating an international law norm that is universal and absolute or applicable to all actors, such as the prohibition against slavery.319 The court found that
the defendants acts met the more stringent purpose standard for aiding and abetting liability.
Consequently, it did not decide whether mere knowledge of the international law violation
would suffice.320
The court also decided not to rule in this phase of the case on the question of extraterritoriality, and instead remanded the case to the trial court to allow the plaintiffs to supplement
the record. However, the court disagreed with the Second Circuit on whether Kiobel had incorporated the focus test from Morrison. The court noted that Kiobel chose to use the phrase
touch and concern rather than the term focus, and that, since the focus test turns on discerning Congresss intent when passing a statute, it cannot sensibly be applied to ATS claims,
which are common law claims based on international legal norms.321
Baloco v.Drummond Co., Inc.322 arose from the murders of three Colombian union leaders
employed in Colombia by Drummond, an American mining company. The union leaders were
murdered by Colombian paramilitaries who provided security services to Drummond. The
victims children filed an ATS action against Drummond and two of its key employees, alleging that they directly funded some of the paramilitaries operations and conspired with them
to commit the murders.
315. Id.
316. Id. at529.
317. See id. at 53031. However, this was not the end of the plaintiffs case. The defendants argued that
the interrogators acted under the direct control of the U.S.military; thus, the case raised the possibility
of non-justiciable political questions. The court remanded the case to the trial court with instructions to
develop a factual record from which to determine justiciability.
318. 766 F.3d 1013 (9th Cir. 2014), rehg and rehg en banc denied, ___F.3d ___, 2015 WL 3407226 (9th
Cir. May 06, 2015, as amended June 10, 2015), pub. ordered, 786 F.3d 801 (9th Cir.2015).
319. Doe I, 766 F.3d at1022.
320. See id. at 1024 (We conclude that the plaintiffs allegations satisfy the more stringent purpose standard, and therefore state a claim for aiding and abetting slavery [by supporting the inference that] the
defendants have not merely profited by doing business with known human rights violators [but also]
they have allegedly sought to accomplish their own goals by supporting violations of international law.).
321. Id. at1028.
322. 767 F.3d 1229 (11th Cir.2014).
666
The court adopted the focus test from Morrison and dismissed the ATS claims, finding that the plaintiffs failed to rebut the presumption against extraterritoriality. After noting
that the defendants American nationality did not carry significant weight,323 the court
also gave little weight to the defendants conduct in the United States. The court reasoned
that, even if the defendants decisions in the United States were to be considered as part of
the relevant conduct, the complaint would still fall short because there was no express
agreement between Defendants and [the paramilitaries] to execute [the three union leaders]
on Drummonds behalf.324 After all, mere consent to support the paramilitaries did not
necessarily suggest any conduct in the United States directed at the murders, nor was it
indicative of an express quid pro quo understanding that Drummond would finance [the
paramilitaries] operations in exchange for carrying out the killings.325 In any event,
the court concluded, the issue is not whether the murders touch and concern the United
States, but rather whether the murders touch and concern the territory of the United
States.326 Moreover, even if these murders touched and concerned the territory of the
United States, they did not do so with sufficient force to displace the presumption against
extraterritorial application.327
Mujica v.AirScan Inc.,328 decided by another Ninth Circuit panel after Doe I, reveals that
the disagreements on how to apply Kiobels cryptic test exist not only among different circuits, but also among panels of the same circuit. Unlike the Doe I panel, but like the Second
Circuit in Mastafa and Justice Alitos concurring opinion in Kiobel, the Mujica panel focused
on whether the defendants domestic conduct itself constituted an international law violation.
The defendants were an American oil company (Occidental) and its private security provider
(AirScan), also an American company. The plaintiffs were Colombian nationals suing on behalf
of Colombian unarmed civilians targeted by a bombing campaign of the Colombian Air Force
(CAF). According to the complaint, the defendants assisted the CAF campaign by providing
targeting information and other intelligence.
In an opinion written by Judge Bybee, the court held that the plaintiffs claims did not
touch and concern the territory of the United States with sufficient force to displace the presumption against extraterritorial application because the claims were based solely on conduct
that occurred in Colombia,329 and the fact that the defendants were American corporations
was not a sufficient nexus. The plaintiffs suggested without specifics that some of the defendants conduct had occurred in the United States and asked the court for leave to supplement
the record. The court did not grant leave, prompting a protest from a dissenting judge. The dissent also disagreed with the majoritys focus on tortious American conduct rather than on the
plaintiffs claims, which was the term used in Kiobel. This erroneous focus, the dissent argued,
323. Id. at1236.

324. Id. (emphasis added). One suspects that even if the plaintiffs could prove an agreement, this court
would require it to be in writing and underseal.
326. Id. (quoting Kiobel, 133 S.Ct. at 1669)(emphasis added by Baloco court).
327. Id. at1238.
328. 771 F.3d 580 (9th Cir.2014).
667
led the majority to essentially disregard[] defendants U.S.citizenship, which is a fundamental

feature of plaintiffs ATS claims, and which renders application of the ATS, by definition, not
extraterritorial.330
As the ATS door closes, one would expect victims of human rights abuses to invoke state
law with greater frequency and persistence.331 For this reason, the part of the Mujica opinion
addressing the plaintiffs state law claims may be more important than that which dismissed
the ATS claims. The plaintiffs filed claims for wrongful death and intentional infliction of emotional distress under California law. The court dismissed these claims as non-justiciable under
the doctrine of adjudicatory (as opposed to prescriptive) comity. This doctrine resembles the
forum non conveniens doctrine, except it is more political and lacks most of the latter doctrines
safeguards. The court based its decision on the interest of the United States and Colombia in
not allowing adjudication in the United States, and on the adequacy of a Colombian forum,
although such a forum was no longer available, if it ever hadbeen.
The court acknowledged that the United States has an interest in upholding international
human rights norms, and has manifested some level of interest in the good behavior of its
corporate citizens abroad.332 However, the court noted, the United States does not monitor
or regulate all the behavior of its citizens, natural or corporate, overseas.333 The court also
acknowledged that California had a significant interest in providing a forum for those harmed
by the actions of its corporate citizens,334 but concluded that this was a general interest in good
corporate behavior and should not be overstated, given that Plaintiffs are not California citizens, that their claims concern events that occurred abroad, and that one Defendant (AirScan)
is not a California resident corporation.335
In any event, the court said, Californias interest in providing a forum scarcely outweighs
the United States unambiguous preference to the contrary.336 The U.S. State Department
330. Id. at 618 (Zilly, J., concurring in part and dissenting in part). The dissent reasoned that [u]nless
an ATS claim is premised purely on vicarious liability, a defendant who violates the law of nations while
domiciled in the United States must necessarily engage in at least one predicate act within our borders[,]
and that the majoritys treatment of U.S.citizenship as just one factor simply begs the question of what
act is sufficient or how many acts are enough to establish jurisdiction. The dissent would have held that
the ATS confers jurisdiction when an ATS claim is brought against a domestic corporation or other
U.S.national, without any allegation of underlying conduct within the United States. Id. at 61819 (footnotes omitted).
331. For extensive discussion of this expected trend, see P. Borchers, Conflict-of-Laws Considerations
in State Court Human Rights Actions, 3 U.C. Irvine L. Rev. 45 (2013); A. Colangelo & K. Kiik, Spatial
Legality, Due Process, and Choice of Law in Human Rights Litigation under U.S. State Law, 3 U.C. Irvine
L.Rev. 63 (2013); P. Hoffman & B. Stephens, International Human Rights Cases under State Law and in
State Courts, 3 U.C. Irvine L.Rev. 9 (2013); C. Keitner, State Courts and Transitory Torts in Transnational
Human Rights Cases, 3 U.C. Irvine L.Rev. 81 (2013); A. Parrish, State Court International Human Rights
Litigation:AConcerning Trend?, 3 U.C. Irvine L.Rev. 25 (2013); C. Whytock, D. Childress & M. Ramsey,
After KiobelInternational Human Rights Litigation in State Courts and under State Law, 3 U.C. Irvine
L.Rev. 1 (2013).
332. Mujica, 771 F.3d at 609 (emphasis added).
333. Id.
334. Id. at610.
336. Id. at611.
668
categorically expressed that preference in two Statements of Interest (SOI) and an amicus brief
urging the court to dismiss the case in order to protect U.S.interests and preserve good relations with a close ally.337 The Colombian government also expressed its preference for dismissal
in two dmarches, one of which stated that non-dismissal may affect the relations between
Colombia and the US.338
With the interests of both countries aligned in favor of dismissal, the only questions left
were the availability and the adequacy of a forum in Colombia. But the court saw both as
one questionadequacy. In fact, the plaintiffs no longer had a forum in Colombia because
Colombian law required them to sue all defendants at the same time. The plaintiffs had sued
the Colombian government but not the American defendants, citing fears for their safety, which
prompted them to flee the country. Apparently not believing those fears, the court concluded
that the unavailable Colombian forum was in fact adequate: Plaintiffs could have originally
sued Defendants in Colombia when they sued the government, but they chose not to do so,
and the fact that Colombian law would bar their suit now does not render the forum inadequate.339 Thus, the plaintiffs only had themselves to blame, as [a]ny lack of a remedy against
Defendants thus stems from Plaintiffs failure to sue Defendants in Colombia rather than from
the inadequacy of the Colombian legal system.340
V. A F E W R E MA R K S O N M ET HODOL OGY
An experienced international litigator and thoughtful academic author has summarized the
Courts jurisprudence on the subjects discussed in this chapter as follows:
[T]he Courts recent approach to the extraterritorial reach of federal legislation leaves much to
be desired. With almost haphazard nonchalance, the Court has applied several fundamentally
different rules of construction in international cases. One is the traditional American Banana
rule, revived and applied in Aramco, which imposes a strict territoriality presumption on federal
legislation. A second is the Hartford Fire rule, which looks to the contemporary formulations
of Alcoas effect doctrine. Athird is reflected in decisions such as Lauritzen . . ., which adopt a
multifactor rule of reason approach . . ., which is arguably adopted in [Empagran]. Unfortunately,
the Court has neither acknowledged the existence of these different approaches, nor provided
guidance as to when it will apply one, rather than another. The result is confusion for litigants
and lower courts, and arbitrary, unpredictable results.341
True indeed! As the discussion in this chapter illustrates, the Supreme Court has used widely
different methodologies, moving from unilateralism to bilateralism and back, perhaps without
any awareness of doing so. To be sure, methodological inconsistency is not unprecedented.
337. See id. at 60911.

338. Mujica, 771 F.3d at611.
339. Id. at614.
340. Id.
341. Born & Rutledge, International Civil Litigation691.
669
After all, the cases discussed here span a long period, during which the Courts membership
and philosophy changed repeatedly. Even when the composition of the Court was relatively
stable, the cases it faced, even when not overtly political, were substantively diverse, despite
their common denominator of involving foreign elements. Moreover, one could argue, as some
have, that methodology in general, and choice-of-law methodology in particular, does not matter in that it rarely explains a courts choice of law or affects the substantive outcome.342
Even so, a common and consistent methodology can be the glue that holds precedents
together. Moreover, at least in this area, methodology can make a difference. To use a relatively
nonpolitical case as an example, had the Spector court applied Lauritzens bilateral approach
rather than the unilateralist clear statement canon, there would be little doubt that the Spector
case would fall squarely within the reach of the ADA.343 To illustrate, suppose that one of the
Spector passengers (disabled or not) were to sue the shipowner after a slip-and-fall injury that
occurred on one of the ships involved in that case. Under established precedent, this hypothetical would fall under the Lauritzen-Rhoditis line of cases, leading directly to the application of American law, regardless of whether the injury occurred within U.S.waters, the high
seas, or foreign waters. Indeed, in such a case, the United States would have more numerous
and significant contacts and clearer interests than it had in Rhoditis.344 Moreover, as Rhoditis
and its progeny indicate, American law would apply even if the plaintiff were a crewmember
rather than a passenger, at least if the crewmember is an American or the injury occurred in
U.S.waters.345 To treat short-term cruise passengers differently by denying them the protection
available to crewmembers makes little sense. The only reason for the disparate treatment is a
historical accidentthe two categories of cases fall under different lines of precedent.
The sharp differentiation between the Jones Act cases and cases such as Spector that arguably implicate the internal affairs doctrine is neither necessary nor easy to defend. The same is
true of the dichotomy between cases involving other federal statutes and cases involving federal
common law, such as general maritime law. There is no logical reason for subjecting some of
these cases to clear statement canons, others to mere presumptions, and others to no presumption at all. In all of these categories, the question is the same: whether the values embodied
in American lawlegislatively enacted or judicially declaredshould be observed in certain
cases with foreign elements. This is the primordial choice-of-law question. The answer is often
difficult, but the path leading to it should not be completely different depending on historical
342. See, e.g., S. Sterk, The Marginal Relevance of Choice of Law Theory, 142 U. Pa. L.Rev. 949,1994.
343. Spector and Lauritzen are discussed respectively supra 63941, 64142.
344. Of the eight Lauritzen-Rhoditis factors, only two would point away from American law:the foreign
flag (which in Spector was a flag of convenience) and the place of the tort, if the tort occurred outside
U.S.waters. In every other respect, the case would differ little from a wholly-domestic American case. The
Spector ship owner had its principal place of business, not just a base of operations, in the United States.
As the Court noted, it was a United States-centered venture[] that relie[d]upon extensive advertising
in the United States to promote its cruises and increase its revenues and serve[d] predominantly United
States residents. Its cruises depart[ed] from, and return[ed] to, ports in the United States [and] [m]
ost of the passengers on these cruises [were] United States residents. Spector, 545 U.S.at126.
345. Interestingly, although the Rhoditis line of cases involved disputes between crewmembers and shipowners, which could implicate matters of discipline and internal order, the courts have never subjected
these cases to the internal affairs doctrine. For this reason, courts were free to resolve these conflicts in a
more rational manner, without the artificial restraints of the clear statementcanon.
670
accidents or the presence of statutes. One hopes that the Court will see fit to merge into a single
approach the diverse tests it now employs in cases involving statutes (such as the Jones Act, the
Sherman Act, or the ADA) and common-lawcases.
In formulating this approach, the Court will have many choices, including the Lauritzen
test. Although extending the Lauritzen test to cases such as Spector would be a significant
improvement over the unilateralist clear statement canon, even the Lauritzen test needs
updating. One of its problems is that, as Justice Harlan once observed, many lower courts tend
to be mesmerized by contacts notwithstanding the purported eschewal of a mechanical
application of the Lauritzen test.346 In 1953, when American conflicts law was fixated with
simplistic monodimensional rules such as the lex loci delicti, the Lauritzen test was a significant methodological breakthrough, but it was, and remains, prone to mechanical application.
Moreover, because it was designed for personal injury or death cases, the test is ill-suited for
other maritime conflicts, and even less so for non-maritime conflicts.
The good news is that, since Lauritzen, American conflicts law has not only broken away
from mechanical rules, but it has progressed beyond contact-counting as a means of choosing the applicable law. Unfortunately, the Supreme Court has not revisited Lauritzen, and has
not had the opportunity to take account of the intervening progress.347 One hopes that, on the
next available opportunity, the Court will not only update Lauritzen for Jones Act cases, but
will also enunciate a unified approach for all maritime conflicts (if not for all cases with foreign
elements), regardless of whether they involve statutes or commonlaw.
346. Hellenic Lines v.Rhoditis, 398 U.S. 306, 318 (1970) (Harlan J., dissenting).
347. For suggestions of how to modernize the Lauritzen test, see Neely v.Club Med Mgmt. Servs., Inc.,
63 F.3d 166 (3d Cir. 1995); S. Symeonides, Maritime Conflicts of Law from the Perspective of Modern
Choice of Law Methodology, 7 Marit. Lawyer 223 (1982).
PA R T F O U R
CONCLUSIONS
seventeen
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A. WHERE AREWE?
A reader patient enough to have read this far may have noticed that more than half of this
book is allocated to discussing tort and contract conflicts. The main reason for this apparent
imbalance is that these conflicts are the most numerous among conflicts cases American courts
decide every year. Asecondary, but my no means negligible, reason is that the choice-of-law
revolution has occurred almost exclusively in the area of tort and contracts, leaving other areas
of conflicts law relatively intact. As a result, there is less certainty and more need for regrouping
and correction in tort and contract conflicts than in other areas of conflicts law. Conversely,
in areas such as property and successions, there is more certainty, but also too much of the
old dogma, which impedes the rational resolution of many conflicts. Finally, there are several
new areas of conflicts law, such as international conflicts, where the case law grew incoherently
without a compass or rudder.
As a result of these developments, or in some cases lack of developments, American conflicts law has become an uneven heterogeneous mlange, a hodgepodge. It is time to take stock
and chart the next step in the evolution of American conflicts law. This chapter aspires to contribute to the necessary debate.
B. THE REVOLUTIONARY STATUSQUO

Obviously, the phrase revolutionary status quo is an oxymoron. But when a revolution lasts
for as long as the American choice-of-law revolution, it becomes a status quo. Oddly enough,
however, this revolution has not transitioned into a new system. This chapter discusses why,
and how, it should.
There is no question that, judging from the number of states that have joined it, the choice-
of-law revolution has prevailed over the traditional system in the area of torts and contracts.
But to prevail is one thing, and to succeed is another. Success should not be judged by numbers
alone. Instead, one should ask whether the revolution has produced a new system to replace
the old one, and whether it attends to the basic needs and aspirations of the choice-of-law process, such as predictability, administrability, rationality, and uniformity of decisions. Although
673
674
Conclusions
the revolution has changed American conflicts law in many beneficial ways, it has not succeeded in producing a new system, perhaps because it did not aspire to produce one. As a
knowledgeable European observer suggested, the revolution remained perhaps no more than
a protest song.1
Rather than offering a unified vision for the future, the revolution offered conflicting theories, which the courts have merged together, often adding their own variations.2 Thus, the academic polyphony that characterized the scholastic revolution produced an equally dissonant
judicial polyphony. Moreover, in its zeal to cleanse the system from all the vestiges of the first
Restatement, the revolution went too far in denouncing all choice-of-lawrules.
One of the consequences of these developments is an unprecedented degree of judicial
flexibility in choice-of-law decisions in torts and contracts. To be sure, flexibility is preferable
to uncritical rigidity, but too much flexibility can be as bad as no flexibility at all. Even Leflar,
one of the revolutions protagonists, admitted that flexibility is not a virtue for every type of
conflicts case.3 Afortiori, it is not a virtue for all cases. When each case is decided ad hoc as if
it were a case of first impression,4 multiple problems arise, including increased litigation costs,5
waste of judicial resources,6 and an increased danger of judicial subjectivism.7 In turn, judicial
subjectivism leads to dissimilar handling of similar cases, which in turn tests the citizens faith
in the legal system and tends to undermine its very legitimacy.8
Although some judges may welcome the new flexibility, others bemoan the burden that
the lack of rules entails. In deciding conflicts cases under the new approaches, courts have
1. E. Jayme, The American Conflicts Revolution and Its Impact on European Private International Law,
in Forty Years On:The Evolution of Postwar Private International Law in Europe, 15, 18 (1992).
2. Cf. F. Juenger, A Third Conflicts Restatement?, 75 Ind. L.J. 403, 403 (2000) ([O]ne finds authors who
are at doctrinal loggerheads peacefully united in a single footnote; one encounters prose so turgid and
stilted that one suspects that the judge (more likely the law clerk who actually drafted the opinion) never
really grasped the idea behind the particular conflicts approach the court purports to follow.).
3. R. Leflar, Choice-of-Law Statutes, 44 Tenn. L.Rev. 951, 952 (1977).
4. See P.J. Kozyris, Interest Analysis Facing Its Critics And, Incidentally, What Should Be Done about
Choice of Law for Products Liability, 46 Ohio St. L.J. 569, 580 (1985) (any system calling for open-ended
and endless soul-searching on a case-by-case basis carries a high burden of persuasion.).
5. See P. Borchers, Empiricism and Theory in Conflicts Law, 75 Ind. L.J. 509 (2000) ([T]he extreme flexibility of the modern approaches probably brings increased litigation costs, in particular through the need
to prosecute appeals. Because cases settle (at least for economically rational litigants) when the parties
assessments of the value of the case converge to within the expected cost of pursuing the case to judgment, the ever-present wild card of choice of law may discourage settlement.).
6. See P. J.Kozyris, The Conflicts Provisions of the ALIs Complex Litigation Project:AGlass Half Full?,
54 La. L. Rev. 953, 956 (1994) ; P. Borchers, Back to the Past: Anti-Pragmatism in American Conflicts
Law, 48 Mercer L.Rev. 721, 724 (1997); E. OHara & L. Ribstein, From Politics to Efficiency in Choice of
Law, 67 U. Chi. L.Rev. 1151 (2000); S. Wiegand, Fifty Conflict of Laws Restatements:Merging Judicial
Discretion and Legislative Endorsement, 65 La. L. Rev. 1 (2004). See also Kaczmarek v. Allied Chem.
Corp., 836 F.2d 1055, 1057 (7th Cir. 1987)(Posner,J.).
7. See Y. Loussouarn & P. Bourel, Droit international priv 142-153 (7th ed. 2001) (referring to impressionnisme juridique); Kozyris, supra note 4, at 580 (referring to judicial particularistic intuitionism).
8. See P.J. Kozyris, Conflicts Theory for Dummies:Aprs le Deluge, Where Are We on Producers Liability?,
60 La. L.Rev. 1161, 1162 (2000) ([T]elling the courts in each conflicts case to make a choice and fashion
the applicable law ad hoc and anew (i.e., without legislative or precedential direction) on the basis of
what is right (just, proper, good, suitable, interested, etc.), as is often done under the prevailing conflicts
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to employ very complex and laborious analyses, and essentially to reinvent the wheel in each
case. As Russell Weintraub observed, [c]hanges in court personnel can cause a new court to
reinvent the wheel that was invented at least a decade earlier, but this time not get it right.9
This may partially explain Fritz Juengers claim that one cannot even trust judicial opinions
to adhere faithfully to the doctrines they claim to follow.10 But the major reason for which many
observers characterize the case law as incoherent,11 sad,12 or unsophisticated, unthoughtful,
and often unreasoned13 is the complexity of the modern choice-of-law approaches and our
failure to provide more specific, practical guidance to judges. To quote Weintraub once again,
[j]udges are not stupid, just busy.14 Most of them encounter conflicts cases only infrequently
and thus they do not have the opportunity or the incentive to develop the necessary expertise.15
Now more than ever, they need our help;16 they need at least a road map to navigate what they
call the murky maze17 or veritable jungle18 of conflictslaw.
Thirty years ago, John Kozyris noted that American conflicts law had become a tale of
a thousand-and-one-cases,19 in which each case is decided as if it were unique and of first
impression.20 Since then, the yearly number of conflicts cases has tripled21 and their complexity
theories, appears to me to be not only inconsistent with the basic principles of separation of powers, not
only burdensome and potentially arbitrary beyond reason, not only disorienting to the transacting person, but also essentially empty of meaning. [U]npredictable law is not law to begin with.).
9. R.J. Weintraub, The Restatement Third of Conflict of Laws:An Idea Whose Time Has Not Come, 75
Ind. L.J. 679, 680 (2000). See also M. Rosenberg, Comments on Reich v.Purcell, 15 UCLA L.Rev. 641, 644
(1968) (The idea that judges can be turned loose in the three-dimensional chess games we have made
of [conflicts] cases, and can be told to do hand-tailored justice, case by case, free from the constraints or
guidelines of rules, is a vain and dangerous illusion.).
10. F.K. Juenger, A Third Conflicts Restatement?, 75 Ind. L.J. 403, 410 (2000).
11.Weintraub, supra note 9, at686.
12.Juenger, supra note 10, at404.
13. L. Kramer, Choice of Law in the American Courts in 1990:Trends and Developments, 39 Am. J.Comp.
L. 465, 466 (1991) ([I]t is hard to read a lot of choice of law opinions without being terribly disappointed
in the quality of the analysis, which tends to be unsophisticated, unthoughtful, and often unreasoned.).
See also L. Kramer, On the Need for a Uniform Choice of Law Code, 89 Mich. L.Rev. 2134, 2149 (1991)
(finding that choice-of-law decisions are characterized by confused and misguided thinking).
14.R.J. Weintraub, Courts Flailing in the Waters of the Louisiana Conflicts Code: Not Waving but
Drowning, 60 La. L.Rev. 1365, 1366 (2000).
15. See A.T. von Mehren, Recent Trends in Choice-of-Law Methodology, 60 Cornell L. Rev. 927, 966
(1975) (Judicial experience with any given choice-of-law problem is usually more episodic than with
analogous domestic-law problems.); Weintraub, supra note 9, at 680 ([A]ll courts, but especially state
courts, encounter choice-of-law problems haphazardly at infrequent intervals.).
16. Hay, Borchers & Symeonides, Conflict of Laws 125 (Courts need and are entitled to more guidance
than the iconoclastic literature has provided.).
17. Am. Motorists Ins. Co. v.ARTRA Group, Inc., 659 A.2d 1295, 1313 (Md. 1995)(Baker, J., dissenting).
18. See infra text accompanying note23.
19.Kozyris, supra note 4, at578.
20. Id. at580.
21. The number of choice-of-law cases grew from 1,751 in 1985 to 5,106 in 2014. Search conducted on
August 11, 2015, on Westlaws Allstates and All federal databases using the query advanced:(170bvi
360i(b) choice #of law conflict #of law what law governs lex loci lex locus most significant
676
Conclusions
has increased, but we have done nothing to lighten the courts choice-of-law burden.22 If we
listen to the courts, we will learn that the status quo is not acceptable to them. They describe
American conflicts law as a veritable jungle, [in] which, if the law can be found out, leads
not to a rule of action but a reign of chaos dominated in each case by the judges informed
guess.23 This is why many judges, especially federal judges, who often adjudicate complex
multidistrict cases, routinely advocate the enactment of federal choice-of-law legislation for
such cases to eliminate costly uncertainty and create uniformity.24
C. THE NEXT STEP:EXIT AND CONSOLIDATION

To eliminate [this] costly uncertainty, or at least reduce it, we need to close the long revolutionary cycle and begin building a new system. The revolution was necessary for its time. But it went
too far when, following Curries hyperbolic aphorism, it denounced all choice-of-law rules, not
just the rules of the first Restatement.25 It is time to recognize that, just as Beales Restatement
had gone too far in insisting on certainty to the exclusion of all flexibility, the revolution has
gone too far in embracing flexibility to the exclusion of certainty. Acorrection is needed, and a
new equilibrium should be sought between these two perpetually competingneeds.
The revolution has also lasted too long.26 Although polyphony and flexibility are both necessary and enriching during periods of transition and experimentation, they should not be the
relationship lex rei extraterritorial extraterritoriality territoriality depecage renvoi forum selection
choice #of forum) & da (1985) and (2014).
22. See P.J. Kozyris, The Conflicts Provisions of the ALIs Complex Litigation Project:AGlass Half Full?,
54 La. L. Rev. 953, 956 (1994) (Conflicts theorists have been notoriously indifferent to the issue
of efficiency, treating every case as a unique specimen calling for custom-made handling on the tacit
assumption that litigation resources are infinite[.]);G. Shreve, Conflicts Altruism, in J. Nafziger & S.
Symeonides (eds.), Law and Justice in a Multistate World:Essays in Honor of Arthur T.von Mehren 383,
390 (2002) ([T]he conflicts academy has not demonstrated more curiosity and concern about how
lawyers and judges are faring as they grapple with the subject. Many appear indifferent to the workaday problems that lawyers and judges have with conflicts law.); P.J. Borchers, Back to the Past: Anti-
pragmatism in American Conflicts Law, 48 Mercer L.Rev. 721, 724 (1997).
23. In re Paris Air Crash of March 3, 1974, 399 F.Supp.732, 739 (C.D. Cal.1975).
24. In re Air Crash Disaster at Stapleton Intl Airport, Denver, 720 F. Supp. 1445, 145455 (D. Colo.
1988) (The choice of law problems inherent in air crash and mass disaster litigation cry out for federal statutory resolution. Federal law would eliminate costly uncertainty and create uniformity.
This approach would lead to a quick and efficient resolution of mass disaster cases[.]); J.B. Weinstein,
Mass Tort Jurisdiction and Choice of Law in a Multinational World Communicating by Extraterrestrial
Satellites, 37 Willamette L. Rev. 145, 153 (2000) (A federal statute would help. An international treaty
would be even better.).
25. See Currie, Selected Essays 183 (we are better off without any choice of law rules); Id. at 180 (The
rules [of the traditional theory] have not worked and cannot be made to work. But the root of the
trouble goes deeper. In attempting to use the rules we encounter difficulties that stem not from the fact
that the particular rules are bad but rather from the fact that we have such rules at all.) (footnotes
omitted).
26. P.J. Kozyris, Foreword and Symposium on Interest Analysis in Conflict of Laws: An Inquiry into
Fundamentals with a Side Glance at Products Liability, 46 Ohio St. L.J. 457, 458 (1985) (The conflicts
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ultimate objective. Put another way, transitions and experimentations should not last forever.
Five decades after the revolution began, it is high time that it end. It is time to develop an exit
strategy that both consolidates and preserves the gains of the revolution, and turns its numerical victory into a substantive success.
American conflicts law is now ripe for, and needs, some process of consolidation and standardization. The experience accumulated in the past 50years makes it possible to articulate a
new breed of smart, evolutionary choice-of-law rules that will (1)preserve the substantive and
methodological accomplishments of the revolution; (2)restore a proper equilibrium between
certainty and flexibility, primarily in tort and contract conflicts; and (3)streamline, modernize,
and rationalize the rest of conflictslaw.
D. THE MEDIUM:OPTION ONE

NATIONAL LEGISLATION
For those who subscribe to this thesis, the next step is to choose the proper medium for this transition. The options include federal legislation, state legislation, or a new Restatement. Statutory
rules are rarely welcome in the orchard of the common law, and much less in the garden of
conflicts law. Nevertheless, as noted earlier, some judges have advocated the enactment of federal
legislation. Several academic authors have also taken the same position,27 and the ALI has drafted
and proposed two statutes for enactment by the U.S. Congress:the Complex Litigation Project, in
1994,28 and the Foreign Judgments Project, in 2006.29 The fact that, after so many years, Congress
has not taken up either of these proposals suggests that Congresss interest in conflicts law ranges
from slim to zero. History confirms this indifference. As noted earlier, Congress has used the
power conferred by the Full Faith and Credit clause to enact federal conflicts legislation only five
times, and only in certain narrow areas where Congress perceived a pressing need for national
uniformity.30 It is unlikely that Congress can be persuaded that such a need exists in choice of law
as a whole. Realistically, therefore, the enactment of federal choice-of-law legislation is bound to
encounter insurmountable obstacles, even under the best of circumstances.
This leaves the other two options: state legislation or a new Restatement. State legislation
initiated through, and modeled after, a Uniform Act is the ideal solution, if only because it offers
the prospect of national uniformity. However, this solution too depends on a somewhat political decision on the part of the National Conference of Commissioners on Uniform State Laws
revolution has been pregnant for too long. The conflicts misery index, which is the ratio of problems to
solutions, or of verbiage to result, is now higher than ever.).
27. See, e.g., M. Gottesman, Draining the Dismal Swamp:The Case for Federal Choice of Law Statutes,
80 Georgetown L J. 1 (1991); L. Kramer, On the Need for a Uniform Choice of Law Code, 89 Mich. L.Rev.
2134 (1991); R. Whitten, Curing the Deficiencies of the Conflicts Revolution: A Proposal for National
Legislation on Choice of Law, Jurisdiction, and Judgments, 37 Willamette L.Rev. 259 (2000); Wiegand,
supra note6.
28. See American Law Institute, Complex Litigation:Statutory Recommendations and Analysis (1994).
29. See American Law Institute, Recognition and Enforcement of Foreign Judgments:Analysis and Proposed
Federal Statute (2006).
30.See supranote 23.
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Conclusions
(NCCUSL). As long as NCCUSL refrains from entering the dismal swamp of conflicts law, this
undertaking is left to individual states. This chapter describes the choice-of-law codifications of
the only two statesLouisiana and Oregonthat have risen to this challenge. The chapter concludes with a discussion of the need for and the process of drafting a new Conflicts Restatement.
I I. OP T I O N T W O : S TAT E L EGI S L AT I ON
A. THE LOUISIANA CODIFICATION
1. Goal, Catchphrase, and
General Approach
In 1991, Louisiana became the first state of the United States to enact a comprehensive choice-
of-law codification.31 Louisianas civil law heritage explains why codification was a viable option
in that state, but it does not mean that the resulting product is particularly civilian in content.
The codification, which now forms Book IV of the Louisiana Civil Code, uses civilian drafting
technique and draws elements from many European approaches; but, more than anything, it
draws from the general American conflicts experience.
The codifications first article, Article 3515, enunciates the general objective of the choice-
of-law process, and prescribes the method for judicially attaining this objective. This approach
is implemented by more specific articles in each of the codifications eight titles, which provide
for matters of status, marital property, successions, real rights, conventional obligations (contracts), delictual and quasi-delictual obligations (torts), and liberative prescription (statutes of
limitation). Thus, Article 3515 is the general article in the sense that it contains the general
principles from which the other articles of the codification have been derived, and in light of
which they should be interpreted.32
The general objective of the choice-of-law process under the Louisiana codification is to
apply the law of the state whose policies would be most seriously impaired if its law were not
31. See Book IV of the Louisiana Civil Code (Arts. 35153549), enacted in 1991. For discussion of
this codification by its drafter, see, inter alia, S. Symeonides, The Conflicts Book of the Louisiana Civil
Code:Civilian, American, or Original?, 83 Tul. L.Rev. 1041 (2009); S. Symeonides, Private International
Law Codification in a Mixed Jurisdiction:The Louisiana Experience, 57 RabelsZ 460 (1993); S. Symeonides,
Les grands problmes de droit international priv et la nouvelle codification de Louisiane, 81 Revue critique
223 (1992); Symeonides, Louisiana Exegesis 677770; S. Symeonides, Resolving Six Celebrated Conflicts
Cases through Statutory Choice-of-Law Rules, 48 Mercer L. Rev. 837 (1997); S. Symeonides, Louisiana
Conflicts Law: Two Surprises, 54 La. L. Rev. 497 (1994); S. Symeonides, La nuova normativa della
Louisiana sul diritto internazionale privato in tema di responsabilit extracontrattuale, 29 Riv. dir. intle
priv. & process. 43 (1993); S. Symeonides, Louisianas New Law of Choice of Law for Tort Conflicts:An
Exegesis, 66 Tul. L. Rev. 677 (1992); S. Symeonides, Exploring the Dismal Swamp: The Revision of
Louisianas Conflicts Law on Successions, 47 La. L. Rev. 1029 (1987); S. Symeonides, Louisianas Draft
on Successions and Marital Property, 35 Am. J. Comp. L. 259 (1987); S. Symeonides, In Search of New
Choice-of-Law Solutions to Some Marital Property Problems of Migrant Spouses: A Response to the
Critics, 13 (3) Commun. Prop. J. 11 (1986). For discussions by other authors, see infra note66.
32. At the same time, as indicated by its introductory phrase [e]xcept as otherwise provided in this
Book, Article 3515 is also the residual article of BookIV.
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applied to that issue.33 This Hippocratic-sounding catchphrase is the codifications overarching

principle. It performs the same function as do analogous catchphrases in other codifications,
such as the closer relationship, closer connection, or strongest connection.34 Although
these phrases often carry a great deal of symbolism, they are shorthand expressions rendered
necessary by the need for brevity rather than precise descriptions of the basic theory underlying these codifications. The same is true of the Louisiana codification.
As the codifications drafter explainedboth in the legislatively approved Reporters comments and in subsequent publicationsthe negative phrasing of the above-quoted catchphrase
was intended to disassociate its approach from Curries governmental interest analysis, and
other modern American approaches that seem to perceive the choice-of-law problem as a
problem of interstate competition rather than as a problem of interstate cooperation in conflict avoidance.35 At the same time, this negative phrasing, as well as the use of the key word
impaired, may evoke comparison with Professor Baxters comparative impairment approach
followed in California.36 However, the resemblance is only phraseological. As the Reporters
comments provide:
[T]o the extent it is anything more than acoustic, this resemblance is confined to the most basic
premise, namely, that the choice-of-law process should strive for ways to minimize impairment
of the interests of all involved states, rather than to maximize the interests of one state at the
expense of the interests of the other states.37
Indeed, one who looks beyond catchphrases and focuses on the specifics will realize that
the two approaches have much less in common than their linguistic resemblance might suggest.
For example, as discussed elsewhere, the specific rules of the Louisiana codification deliberately
steer away from the quantitative measurement of the impairment of state interests that is implicit
(and sometimes even explicit) in Baxters theory.38 Moreover, in designating the applicable law,
these rules point to the law of a state other than the one to which Baxter would point.39
33. La. Civ. Code Art. 2315(2015).
35. See La. Civ. Code art. 3515 cmt. (b) (2015); S. Symeonides, Louisiana Exegesis 690. To make this
disassociation explicit, the quoted phrase (as well as the rest of the codification) avoids using the term
state interest and refers instead to state policieseven though, in many respects, state policies and
state interests are two sides of the same coin. After all, a state whose policies are implicated in a particular
case has an interest in seeing that those policies are not adversely affected by the non-application of its
law to thatcase.
36. See supra10506.
37. La. Civ. Code art. 3515cmt. (b (2015). The Reporters initial draft avoided using the word impaired
precisely in order to prevent any inference that the codification adopted Baxters approach. Instead, the
draft used the word affected. The Council of the Louisiana State Law Institute decided to substitute
impaired for affected, not because the Council wished to adopt Baxters theory, but rather in order to
make clear that the court should focus on the adverse effects that a choice of law may have on the policies
of the involved states.
38. For examples, see S. Symeonides, Louisiana Exegesis 69192, 70708.
39. See id. Nothing written here should be taken as a criticism of Baxters approach; that approach is
fundamentally sound and certainly worthy of emulation. It just so happens that, in drafting the Louisiana
codification, its drafter knowingly and deliberately decided not to emulateit.
680
Conclusions
In summary, the Louisiana codification did not adopt either Curries interest analysis or
Baxters comparative impairment. Instead, the codification was built on the premise that the
choice-of-law process should aim to identifyand applythe law of the state that, in light
of its relationship to the parties and the dispute and its policies rendered pertinent by that
relationship, would bear the most serious legal, social, economic, and other consequences
if its law were not applied to that issue.40 Relying on this quoted phrase, Professor Russell
Weintraub concluded that [t]he Louisiana Conflict of Laws Code is an attempt to codify a
consequences-based approach,41 namely, an approach that (like the approach Weintraub proposed 10years after the Louisiana codification), chooses law with knowledge of the content of
the laws in each of the [involved] states [and] seeks to minimize the consequences that any
such state is likely to experience if its law is not applied.42
Weintraubs conclusion comes close to the mark. The term consequentialism describes a
doctrine according to which the morality of an act is to be judged solely by its consequences.
In choice of law, consequentialism stands for the proposition that the quality of a choice-of-law
decision is to be judged by the consequences it produces on the interests and values reflected
in the conflicting laws. This is as good or as bad of a formulation as any other emerging from
the choice-of-law revolution.
In the final analysis, however, the approach of the Louisiana codification is what it isan
original. It cannot be easily pigeonholed into any of the other methodological camps or, for
that matter, any of the civil law camps. It is tempting to say that, because it is the product of
a mixed jurisdiction, the Louisiana codification drew the best elements from each tradition.
This, however, does not mean that it is an amalgam of the two. In many important respects, the
codification opened an independent third path between the common law and civil lawpaths.
2.TheMethod
Article 3515 gives content to the principle of least impairment by providing a set of parameters
to guide the courts choice of law. The first step of the process is to identify the involved states
and the policies embodied in their laws implicated in the conflict. The next step is to evaluate
the strength and pertinence of those policies in lightof:
(1) the relationship of each involved state to the parties and the dispute;
(2) the policies and needs of the interstate and international systems;and
(3) the policies of upholding the justified expectations of the parties and minimizing
the adverse consequences that might follow from subjecting a party to the law of more
than one state.43
40. La. Civ. Code art. 3515cmt. (b)(2015) (emphasis added).

41. R.J. Weintraub, Commentary on the Conflict of Laws 355 (4th ed.2001).
42. Id. at347.
43. La. Civ. Code Art. 3515 (2015). Articles 3519, 3537 and 3542 (which are the residual articles for status, contracts, and torts, respectively) use similar phraseology.
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Subsequent articles implement these principles in certain discrete areas of conflicts law,
such as or status (Article 3519), contracts (Article 3537), and torts (Article 3542). For example,
Article 3542, the general and residual article for tort conflicts, provides that, except as otherwise provided by the more specific articles, a tort issue is governed by the law of the state
whose policies would be most seriously impaired if its law is not applied to that issue. Inturn,
that state is determined by evaluating the strength and pertinence of the relevant policies of the
involved states, in the lightof:
(1)the pertinent contacts of each state to the parties and the events giving rise to the dispute, including the place of conduct and injury, the domicile, habitual residence, or place
of business of the parties, and the state in which the relationship, if any, between the
parties was centered;and
(2)the policies referred to in Article 3515, as well as the policies of deterring wrongful conduct and of repairing the consequences of injurious acts.44
Article 3542 is followed by more specific articles derived from the above principles and
designating the law governing conflicts involving issues of conduct and safety (Article 3543),
loss distribution (Article 3544), products liability (Article 3545), and punitive damages
(Article3546).
3.Implementation:Balancing
Certainty withFlexibility
As the above description indicates, the Louisiana codification rejected Curries aphorism that
choice-of-law rules are evil.45 But it also rejected the traditional view that choice-of-law rules
must be rigid and unbending.
Instead, like other recent conflicts codifications,46 the Louisiana codification employs several techniques that allow judges a certain degree of flexibility in deciding certain categories of
cases. Among these techniques are:(1)rules employing alternative connecting factors, (2)rules
relying on flexible or soft connecting factors, and (3)rules armored with escape clauses.
However, the Louisiana codification goes further than these codifications in the direction
of flexibility by:(1)combining black-letter rules with an approach, and (2)espousing what is
known as an issue-by-issue analysis. These features are describedbelow.
a. Alternative-ReferenceRules
Alternative-reference rules are rules that (1)provide a list of states that have certain contacts
with the case, and (2)authorize the application of the law of whichever contact state produces
a designated substantive result, such as upholding a contract, testament, or other juridical act,
or favoring a certain status.47 The Louisiana codification employs this technique in Articles
44. La. Civ. Code Art. 3542 (2015).
45. See supra97 at note 29.
47. See id. at 175, 25069.
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Conclusions
3520 (marriage), 3528 (form of testaments), 3529 (capacity to make a testament), 3538 (form
of contract), and 3539 (capacity to contract). From the judges perspective, these rules appear
inimical to judicial discretion (and thus to flexibility) insofar as they deny the judge the freedom of choosing a law other than the one that produces the preselected result (e.g., upholding
the contract). Nevertheless, from a systemic perspective, these rules provide flexibility because
although they tie the system to a particular result, they do not tie the system to the law of a
particularstate.
b. Soft Connecting Factors

Another relatively recent but common flexibility tool is the replacement of pre-fixed, mono-
directional, and rigid connecting factors (such as the locus contractus or the locus delicti) with
open-ended, multi-directional and softer connecting factors, such as the closest connection.
Unlike the old rules, which almost inexorably pre-determined the applicable law, the rules that
employ these soft connecting factors allow the judge considerable discretion in identifying the
state whose connection, relationship or link with the case is the closest, the strongest,
the most direct, or the most appropriate.48
The Louisiana codification uses a soft factor in Articles 3515, 3519, 3537, and 3542, which
all call for the application of the law of the state whose policies would be most seriously
affected if its law were not applied.
c. Escape Clauses
The most dramatic concession to flexibilityyet falling short of adopting an American-style
approachis the use of pre-authorized escapes from the results dictated by statutory choice-
of-law rules. A perusal of recent codifications, even in civil law countries, shows that escape
clauses are becoming commonplace.49 The increasing use of such escapes suggests that modern legislatures are becoming aware of the inherent limitations in their ability to anticipate
everything, and are learning to entrust judges with greater discretion than in the past. There
seems to be an increasing realization that any pre-formulated rule, no matter how carefully or
wisely drafted, may, because of its generality,50 or because of its specificity, produce results
that are contrary to the purpose for which the rule was designed. In the words of Peter Hay,
this is a natural consequence of the difference between law making and law application.51
Contemporary rule-makers attempt to avert such undesirable results by expressly granting
judges the authority to adjust or avoid altogether the application of the rule when the peculiarities of the individual case so dictate. This grant of authority takes the form of escape clauses
accompanying or attached to therules.
48. See id. at 17689.

49. See id. at 190204.
50.Aristotle, Nicomachean Ethics, V.x47.
51. P. Hay, Flexibility versus Predictability and Uniformity in Choice of Law, 226 Recueil des Cours 281,
291 (1991).
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The Louisiana codification employs an escape clause in one of its eight titles, the title on
torts.52 Article 3547 provides that the law designated in the specific articles of that title (Articles
35433546) shall not apply if, from the totality of the circumstances of an exceptional case, it is
clearly evident under the principles of Article 3542, that the policies of another state would be
more seriously impaired if its law were not applied to the particular issue.53 The specific articles
seek to effectuate the principles of Article 3542 and to implement the idea of causing the least
impairment to state interests by (1)identifying the state whose policies would be most impaired
if its law were not applied, and then (2)calling for the application of that law. In so doing, these
articles alleviate the courts choice-of-law burden and provide the desired measure of legal certainty and predictability. At the same time, Article 3547 reflects a recognition that certainty and
predictability, though important, are not the supreme goals; ensuring that laws are applied in light
of their purpose is even more important. Article 3547 is a legislative authorization and reminder
to the court to scrutinize the application of the specific articles so as to ensure that such application will not be inconsistent with the purpose underlying these articles.54 If the court is convinced
from the totality of the circumstances of the particular case that the policies of a state other than
that identified by the specific articles would be significantly more impaired if its law were not
applied, the court should deviate from those articles and apply the law of the formerstate.
The escape of Article 3547 differs in two important respects from comparable escapes
found in European codifications: (1) unlike the European escapes, which are phrased exclusively in geographical terms (such as closer connection or closer relationship), the escape
of Article 3547 is phrased in terms that tie it to the overarching principle of causing the least
impairment enunciated in the general Article 3542;55 and (2)unlike the European escapes that
apply to the whole case, the escape of Article 3547 applies on an issue-by-issue basis. This difference is discussedlater.
d. Rules and Approaches

Finally, the most innovative feature of Book IV regarding the equilibrium between certainty and
flexibility is the careful combination and interplay between (1)rules that specifically designate
52. Although the other titles do not contain an escape clause, two of them (the title on Status and the title
on Conventional Obligations) strike a balance between certainty and flexibility through a mix between an
approach and narrow, issue-directed, ellipticalrules.
53. The words another state do not mean a state other than Louisiana, but rather a state other than the
one whose law is designated as applicable by Articles 35433546. Thus, the clause is intended to operate
in a bilateral fashion, not only against, but also in favor of, the law of the forum. The words exceptional
and clearly were added by the Council of the Law Institute in an effort to ensure that Article 3547 would
not end up swallowing Articles 35433546.
54. This idea is stated more clearly in the escape clause contained in paragraph 3 of Article 39 of the
Puerto Rico Draft Code of Private International Law. The general article on tort conflicts in this Draft
Code (Article 39)appreciably resembles Louisianas Article 3542 but begins without the except clause
and ends with the following paragraph:When a particular case or issue is not provided for in the following articles of this chapter, or when these articles would produce a result that is clearly contrary to the
objectives of this article, the applicable law is to be selected in accordance with this article.
55. For a discussion of this difference and its practical implications, see S. Symeonides, The American
Revolution and the European Evolution in Choice of Law:Reciprocal Lessons, 82 Tul. L.Rev. 1741, 1773
82 (2008).
684
Conclusions
the applicable law for certain cases or issues, and (2)a general approach, namely, a list of factors providing judges with guided direction (as well as discretion) in selecting the applicable
law. This combination is noteworthy because (1)the choice between rules or approaches is supposed to be an either or proposition,56 and (2)approaches are supposed to be incompatible
with the very notion of a codification.
As noted earlier, American conflicts law has abandoned the use of rules in favor of several approaches, whereas European conflicts law has rejected the use of approaches in favor of
rules. The Louisiana codification stands in the middle of the American and European positions
by opting to combine rules with an approach. Thus, the answer of the Louisiana codification
to the rules vs. approach dilemma is rules and an approach. Through this combination, the
codification attempts to attain an appropriate balance between specificity and generality and
between certainty and flexibility.
The codification employs an approach in Article 3515, the general and residual article for
the whole codification. Similarly, the titles on status, contracts, and torts contain one general
and residual article57which enunciates the general approach for that titleand then a varying
number of specific articles, which implement the general approach for particular fact situations.
The residual articles apply to cases and issues not covered by, or disposed of, under the specific
articles of that title. The specific articles do not cover all of the cases or issues that might fall
under their general headings. For example Articles 35433546 of the torts title do not cover all
possible tort conflicts, but only those that appeared susceptible to relatively noncontroversial
rules derived from the accumulated experience of Louisiana and American jurisprudence.58
The remaining cases have been left for judicial determination within the parameters established by Article 3542the general and residual article of the title on Tort conflicts, which
applies [e]xcept as otherwise provided in [this] Title.59
e. Issue-by-Issue Analysis
Finally, in contrast to the European codifications and in company with American approaches,
the Louisiana codification espouses and employs an issue-by-issue analysis. As the repeated use
of the word issue in Article 3515 and throughout the codification indicates, the evaluation of
state policies for determining the state whose interest would be most impaired should be made
with regard to each issue as to which a conflict of laws exists. When a conflict exists regarding
only one issue, the court should focus on the factual contacts and policies that are pertinent
to that issue. When a conflict exists with regard to more than one issue, each issue should be
analyzed separately because each may implicate different states or bring into play different policies of the implicated states. Viewed from another angle, each state that has factual contacts
with a given multistate case may not have an equally strong interest in regulating all issues in
56. See W. Reese, Choice of Law:Rules or Approach, 57 Cornell L.Rev. 315, 315 (1972) (The principal
question in choice of law is whether we should have rules or an approach.).
57. See La. Civ. Code arts. 3519, 3537, and 3542 (2015), respectively.
58. For specifics, see Symeonides, Louisiana Exegesis 711, 72931, 74957.
59. La. Civ. Code art. 3542 (2015). For detailed discussion of the structure and content of the torts title,
see Symeonides, Louisiana Exegesis 696767.
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that case, but instead may have such an interest only in those issues that actually implicate its
policies in a significantway.
This issue-by-issue analysisprescribed by the general articles or the application of the
narrow, issue-oriented rules contained in the codifications specific articlesmay, on occasion,
lead to dpeage. Although dpeage is innocuous in the majority of cases, in some cases it may
unintentionally defeat the policies of both states. In such cases, dpeage is inappropriate and
must be avoided. The obvious and difficult question is how to distinguish between appropriate dpeage and inappropriate dpeage. In this context, it is worth recalling that the term
dpeage can be paraphrased in English as picking and choosing. Generally speaking, this
picking and choosing is inappropriate when a chosen rule of one state is so closely interrelated
to a non-chosen rule of the same state that applying one without the other would drastically
upset the equilibrium established by the two rules and would distort and defeat the policies of
that state.60
Avoiding an inappropriate dpeage is relatively easy in those cases that fall within the
scope of the codifications general or flexible articles. After all, these articles do not point
inexorably to a particular law, but simply provide guidelines for its selection by the court. In
applying these articles, courts have discretion to avoid dpeage if they find it inappropriate in
a particular case. To that end, courts should also keep in mind the Article 3515 desideratum
of minimizing the adverse consequences that might result from subjecting a party to the law
of more than one state.61 Although primarily designed to serve broader objectives, the quoted
phrase can also serve as a reminder that dpeage is not an end in itself, but is instead a tool for
attaining more rational results.
Even in cases falling within the scope of the specific articles, dpeage is not inevitable.
Some of these articles contain built-in mechanisms for avoiding an inappropriate dpeage.
One such article is Article 3529, which contains two separate choice-of-law rules for issues
of testamentary capacity and vices of consent, respectively. The third paragraph of that article
serves as an express proscription of dpeage by providing that in the cases described therein,62
issues of vices of consent must be governed by the same law that governs testamentary capacity. The reason for avoiding dpeage in these cases is the fact that, in most systems, the rules
concerning vices of consent are closely interrelated with the rules on testamentary incapacities
so that applying one set of rules without the other would disturb the equilibrium accomplished
by the two sets of rules and would therefore distort the policies of both involved states.
Another specific article with a built-in proscription of dpeage is Article 3545, which deals
with products liability. For reasons explained elsewhere,63 this article abandons the issue-by-
issue approach followed by the other articles of the torts title and provides that certain products
60. For detailed discussion of this issue, see S. Symeonides, Issue-by-Issue Analysis and Dpeage in
Choice of Law:Cause and Effect, 45 U. Tol. L.Rev. 751 (2014).
61. La. Civ. Code Art. 3515 (2015).
62. These are cases in which the testator was domiciled in one state at the time of the making of the
testament and in another state at the time of death, and the testator is considered capable of making a
testament by the law of only one of those states. The third paragraph of Article 3529 provides that, in
such a case, issues of vices of consent must be determined under the law of the state that considers the
testament valid as to capacity. For an in-depth discussion of the rationale and operation of this article, see
Symeonides, Exploring the Dismal Swamp, supra note 31, at 105760.
63. See Symeonides, Louisiana Exegesis 75859.
686
Conclusions
liability cases enumerated therein are to be governed by the law of the forumnot only with
regard to the issue of delictual liability, but also with regard to damages, whether compensatory, special, or punitive.64 Thus, cases falling within the scope of this article are to be governed
by the same law, whether or not the issue in question would be classified as one of conduct and
safety, loss distribution, or punitive damages.
However, the potential for dpeage is present in other tort conflicts (as well as in product
liability conflicts not falling within the scope of Article 3545)because the torts title provides
one rule for issues of conduct and safety (Article 3543), another rule for issues of loss distribution (Article 3544), and yet another rule for punitive damages (Article 3546). In these cases,
dpeage may or may not be appropriate, but it is by no means inevitable. As discussed in detail
elsewhere,65 the codificationand especially the escape clause of Article 3547provides courts
with the means of avoiding an inappropriate dpeage.
4.Operation
The Louisiana codification has been in effect for almost a quarter of a century. It has been
widely commented upon by academic authors66 and has been applied by the courts in more
than 300 cases. In the year 2000, Professor Patrick Borchers undertook the task of comparing
the cases decided before and after the codifications enactment. He found that, prior to the
enactment, the rate at which trial court decisions were reversed by appellate courts was close to
50percent, which meant that the trial courts decision had no more predictive value than flipping a coin.67 In contrast, after the enactment, the reversal rate dropped to less than 25percent.
Borchers found these results hopeful and suggestive that comprehensive conflicts codifications
64. La. Civ. Code art. 3545 (2015).

65. See Symeonides, Louisiana Exegesis 73235, 74849.
66. See, e.g., P. Borchers, Louisianas Conflicts Codification: Some Empirical Observations regarding
Decisional Predictability, 60 La. L. Rev. 1061 (2000); H. P. Glenn, Conciliation of Laws in the NAFTA
Countries, 60 La. L. Rev. 1103 (2000); E. Jayme, Neue Kodifikation des Internationalen Privatrechts in
Louisiana, 13 IPRax 56 (1993-1); Kozyris, supra note 8; P.J. Kozyris, Values and Methods in Choice of Law
for Products Liability:AComparative Comment on Statutory Solutions, 38 Am. J.Comp. L. 475 (1990);
J. Nafziger, The Louisiana and Oregon Codifications of Choice-of-Law Rules in Context, 58 Am. J.Comp.
L. 165 (2010 Supp.); W.C. Perdue, A Reexamination of the Distinction between Loss-Allocating and
Conduct-Regulating Rules, 60 La. L.Rev. 1251 (2000); W. Reppy, Louisianas Proposed Hybrid Quasi-
community Property Statute Could Cause Unfairness, 13(3) Commun. Prop. J. 1 (1986); W.M. Richman,
A New Breed of Smart Empirically Derived Conflicts Rules:Better Law than Better Law in the Post-tort
Reform Era:Reviewing Symeon C.Symeonides, The American Choice-of-Law Revolution:Past, Present
and Future, 82 Tul. L.Rev. 2181 (2008); R. Sedler, The Louisiana Codification and Tort Rules of Choice of
Law, 60 La. L.Rev. 1331 (2000); G. Shreve, Every Conflicts Decision Is a Promise Broken, 60 La. L.Rev.
1345 (2000); J.W. Singer, Multistate Justice: Better Law, Comity, and Fairness in the Conflict of Laws,
2015 U. Ill. L.Rev. 1923 (2015); D. Tooley-Knoblett, A Step by Step Guide to Louisianas Choice of Law
Provisions on Marital Property, 52 Loy. L. Rev. 759 (2006); Wiegand, supra note 6; A.T. von Mehren,
Symeon C. Symeonides: A Tribute, 60 La. L. Rev. 1035 (2000); R. Weintraub, The Contributions of
Symeonides and Kozyris to Making Choice of Law Predictable and Just:An Appreciation and Critique,
38 Am. J.Comp. L. 511, 51718 (1990); L. Weinberg, A Radically Transformed Restatement for Conflicts,
2015 U. Ill. L.Rev. 1999, 2047-52 (2015); Weintraub, supra note14.
67.Borchers, supra note 66, at1068.
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can produce significant benefits.68 He concluded that, besides improving the predictability of
decisions in conflicts cases,69 the Louisiana codification is a hopeful indication that statutory solutions can allow for the reconciliation of predictability and other values in multistate
cases.70 Although Borcherss 2000 study has not been updated, there is no reason to assume that
the above percentages have changed significantly. If anything, they probably have improved.
Equally important is the fact that, at least in tort conflicts, the majority of courts in states
other than Louisiana have reached the same results as those that the codification prescribes
for Louisiana courts. For example, Article 3544 provides that loss-distribution tort conflicts
in which the tortfeasor and the victim are domiciled in the same state and the tort occurs in
another state, are to be governed by the law of the parties common domicile. As documented
in Chapter8, American courts encountering these conflicts have almost unanimously applied
the law of the common domicile.71
Article 3544 also provides that, in split-domicile cases in which both the conduct and the
injury occur in the home-state of either the tortfeasor or the victim, the applicable law shall be
the law of the state in which both the conduct and injury occurred.72 As discussed in Chapter8,
American courts encountering these conflicts have routinely reached the same result by applying the law of the state of conduct and injury, regardless of whether that law favors the victim
or the tortfeasor.73
Finally, Article 3544 also provides that, in split-domicile and split-conduct/injury cases
(cross-border torts) in which the injury occurs in the victims home-state, the law of that state
governs if (1)it provides for a higher standard of financial protection for the victim than the
law of the state of conduct, and (2)the occurrence of the injury in that state was objectively
foreseeable.74 American courts encountering these conflicts have almost unanimously reached
the same result.75
For conduct-regulating conflicts, Article 3543 provides that if the conduct and the injury
occur in the same state, the law of that state governs regardless of its content or the parties
domiciles.76 American courts encountering these conflicts have reached the same result.77
Article 3543 also provides that conduct-regulation conflicts arising from cross-border torts are
governed by the law of the state of conductunless the state of injury imposes a higher standard of conduct, in which case the law of the latter state governs (provided that the occurrence
of the injury in that state was objectively foreseeable).78 Again, American courts encountering
68. See id. at 106869. See also id. at 1062 (for the pre-codification cases that Isampled, the affirmance
rate was 52.9%, which is statistically indistinguishable from a coin flip. For post-codification decisions,
however, the affirmance rate improved to 76.2%.).
69. Id. at1068.
70. Id. at 1070.
71. See supra194201.
72. See La. Civ. Code art. 3544(2)(a) (2015).
73. See supra20418.
74. See La. Civ. Code art. 3544(2)(b) (2015).
75. See supra21824.
76. See La. Civ. Code art. 3543(1) (2015).
77. See supra24749.
78. See La. Civ. Code art. 3543(1)(2) (2015).
Conclusions
688
these conflicts have reached the same result by consistently (86 percent) applying either the
law of the place of conduct, or the law of the place of injury, whichever of the two prescribes a
higher standard of conduct for the tortfeasor.79
The above results suggest that, by codifying its conflicts law, Louisiana has not taken itself
out of the mainstream American conflicts law; if anything, Louisiana has taken a lead role in it.
At least in tort conflicts, American courts have reached the same results as those the Louisiana
codification prescribes. The difference is that, while these other courts are forced to reinvent
the wheel in each case, Louisiana courts reach these results much more easily and efficiently by
following the codification articles. This is an important difference with significant benefits in
both efficiency and predictability.
B. THE PUERTO RICO DRAFTCODE

Another attempt at a comprehensive choice-of-law codification has been undertaken in the
Commonwealth of Puerto Rico, under the auspices of the Puerto Rican Academy of Jurisprudence
and Legislation. ADraft Code of Private International Law80 was completed in 1991 and was to
be submitted to the Puerto Rican Legislature that year. However, for extraneous reasons unrelated to the merits of the project, the introduction to the Legislature was delayed until 2002, at
which time the Draft Code became part of a broader project for the Revision of the Puerto Rican
Civil Code.81 For the same reasons, it was withdrawn and reintroduced in 2014. At the time of
this writing, the Draft Code was still pending before the Puerto Rico Legislature. This Code follows the model of the Louisiana Code, but it is more comprehensive and more civilian instyle.
C. THE OREGON CODIFICATION

1.Contracts
In 2001, Oregon became the second state of the United States to begin a comprehensive choice-
of-law codification effort. The first installment of this effort was the 2001 enactment of a new
choice-of-law statute for contract conflicts, which relied heavily on the Puerto Rico Draft
Code.82
79. See supra24749.
80. See Academia Puertorriquea de Jurisprudencia y Legislacion, Proyecto para la Codificacin del
Derecho internacional privado de Puerto Rico (S. Symeonides & A. von Mehren, Rapporteurs, 1991).
For discussion by the drafter, see S. Symeonides, Revising Puerto Ricos Conflicts Law: A Preview, 28
Columbia J.Transnatl L. 601, 1990; S. Symeonides, Codifying Puerto Ricos Choice-of-Law for Contracts,
in S. Symeonides & J. Nafziger (eds.), Law and Justice in a Multistate World:Essays in Honor of Arthur
T.von Mehren 419 (2002).
81. See Proyecto de Ley para la Revisin y Reforma del Cdigo Civil De Puerto Rico, Libro Sptimo (Derecho
Internacional Privado), por Symeon Symeonides, 25 de mayo 2002, available at http://www.codigocivilpr.
net/. For discussion, see M. Figueroa-Torres, Recodification of Civil Law in Puerto Rico: A Quixotic
Pursuit of the Civil Code for the New Millennium, 23 Tul. Eur. Civ. L.F. 143 (2008).
82. See Or. Rev. Stat. 15.30015.380 (2015). For a discussion, see J. Nafziger, Oregons Conflicts
Law Applicable to Contracts, 38 Willamette L. Rev. 397 (2002); S. Symeonides, Oregons Choice-of-
Law Codification for Contract Conflicts: An Exegesis, 44 Willamette L. Rev. 205 (2007) (hereinafter
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The statutes first operative section contains unilateral rules providing that forum law governs four types of contracts having certain enumerated forum contacts, notwithstanding a
choice-of-law clause to the contrary, or any other factors.83 These are contracts in which the
forum states contacts and interests predominate, and in which the law of the forum would govern under almost any choice-of-law theory. In the interest of judicial economy, the statute singles out these contracts and essentially exempts them from the judicial choice-of-law process.
The next three sections deal with form, capacity, and consent.84 In general, these sections
facilitate upholding the contract through alternative references to certain validating laws, while
also providing exceptions in favor of incapable parties,85 consumers, and employees. Also, in
order to avoid the bootstrapping phenomenon, the statute removes issues of capacity and consent from the scope of party autonomy.
Section 15.350 enunciates the principle of party autonomy, delineates its scope, and defines
its modalities. Section 15.355 defines the limitations to party autonomy, providing that the
chosen law will not be applied to the extent its application would:(1)require a party to perform an act prohibited by the law of the state where the act is to be performed, (2)prohibit
a party from performing an act required by the law of the state where it is to be performe, or
(3)contravene an established fundamental policy of the law that would otherwise govern the
issue in dispute.
Section 15.360 (the statutes general and residual rule), enunciates the general approach for
issues other than those covered by the specific sections and for contracts that do not contain
an effective choice-of-law clause. The aim of this approach is to find the law that, in light of the
multistate elements of the contract, is the most appropriate for the resolution of the particular
issue in dispute. This law is determinedby:
(1) Identifying the states that have a relevant connection with the transaction or the
parties;
(2) Identifying the policies underlying any apparently conflicting laws of these states that
are relevant to the issue;and
(3) Evaluating the relative strength and pertinence of these policiesin:
(a) Meeting the needs and giving effect to the policies of the interstate and international systems;and
(b) Facilitating the planning of transactions, protecting a party from undue imposition by another party, giving effect to justified expectations of the parties concerning which states law applies to the issue, and minimizing adverse effects on strong
legal policies of other states.86
Symeonides, Oregon Torts Exegesis); S. Symeonides, Codifying Choice of Law for Contracts:The Oregon
Experience, 67 RabelsZ 726 (2003).
83. See Or. Rev. Stat. 15.320 (2015) (providing for certain contracts involving a state entity, as well as
construction, employment, and consumer contracts that have certain enumerated close connections with
Oregon).
84. See Or. Rev. Stat. 15.325, 15.330, 15.335 (2015).
85. Even so, Lilienthal v.Kaufman, 395P.2d 543 (Or. 1964), the infamous Oregon spendthrift case, was
overruled by Or. Rev. Stat. 15.330(2) (2015), which provides in part that [a]party that lacks capacity to
enter into a contract under the law of the state in which the party resides may assert that incapacity against
a party that knew or should have known of the incapacity at the time the parties entered into the contract.
86. Or. Rev. Stat. 15.360 (2015).
Conclusions
690
Recognizing that the choice-of-law process contemplated by the above provision can be
both laborious and uncertain, the statutes next provision, Section 15.380, introduces presumptive rules for certain types of contracts. The court is to apply the law designated by these rules,
unless the opposing party demonstrates that the application of that law would be clearly inappropriate87 under the principles of Section 15.360.
2.Torts
In 2009, Oregon followed with the second installment of its codification with a statute on tort
conflicts.88 The heart of the new statute consists of two interconnected sections: (1) Section
15.440, which contains the general rules for most tort conflicts; and (2)Section 15.445, which
establishes the statutes general and residual approach.89
a.GeneralRules
The rules of Section 15.440 parallel, to a great extent, the rules of the Louisiana codification and,
most important, reflect the results reached by the majority of courts in the rest of the United
States. These rules are built around various combinations of four factual contacts:(1)the place
of the injurious conduct, (2)the place of the resulting injury, (c)the domicile of the injured person (victim), and (d)the domicile of the person whose conduct caused the injury (tortfeasor).
(1) Common-domicile cases. The first operative clause of Section 15.440(2)(a) deals with
situations in which, at the time of the injury, the tortfeasor and the victim were domiciled in the same state. The clause codifies the results reached by the vast majority of
American cases by providing that the law of the common domicile governs, even if the
injurious conduct or the resulting injury, or both, occurred in another state or states.90
The second clause limits the scope of the common-domicile rule, by exempting from it the
issue of determining the standard of care by which to judge the injurious conduct. Obliquely
acknowledging the distinction between conduct-regulation and loss-distribution, the exception provides that the law of the state of conduct governs this issue, if the resulting injury also
87. Id. at 15.380.

88. See Or. Rev. Stat. 15.40015.460 (2015). For discussion by the drafter, see Symeonides, Oregon
Torts Exegesis, supra note 82; S. Symeonides, Codifying Choice of Law for Tort Conflicts: The Oregon
Experience in Comparative Perspective, 12 Y.B. Priv. Intl L. 201 (2010).
89. Among the statutes other provisions, Sections 15.41015.420 provide special rules for characterization, localization, and determining domicile. Section 15.430 provides that cases in which the parties have
expressly or tacitly agreed to the application of the law of the forum state, or which have certain specified
contacts with the forum state, are governed by the law of the forum, without any judicial choice-of-law
inquiry and without exception. Section 15.435 provides that product liability cases that have two or more
specified contacts with the forum state are presumptively governed by forum law, subject to exceptions
in favor of another law upon a showing that such a result is substantially more appropriate under the
statutes general principles articulated in Section 15.445.
90. For cases reaching this result, see supra194201.
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occurred in that state.91 Subsection (2)(b) deals with situations in which the tortfeasor and the
victim are domiciled in different states, the laws of which produce the same outcome on the
disputed issue or issues. In these obvious false conflicts, the parties are to be treated as if they
were domiciled in the same state to the extent that the laws of those states would produce the
same outcome on the disputed issues.92
(2) Split-Domicile Intrastate Torts. Subsection (3)(a)(b) deals with cases in which the parties are domiciled in different states that have different laws and in which both the
conduct and the injury occurred in the same state. It provides that:(a)if the conduct
and the injury occurred in the home-state of either the tortfeasor or the victim, the law
of that state governs;93 and (b)if both the conduct and the injury occurred in a third
state, the law of the third state governs, subject to an exception for cases in which the
application of that law would not serve the objectives of that law.94
(3) Split-Domicile Cross-Border Torts. Subsection (3)(c) deals with cases in which the parties are domiciled in different states that have different laws, and in which the conduct
and the injury occurred in different states. It provides that the law of the state of conduct governs, unless the victim formally requests the application of the law of the state
of injury,95 but only if the tortfeasors activities were such as to make the occurrence of
injury in that state foreseeable.96
b. The General and Residual Approach

Section 15.445 sets forth the statutes general approach for cases or issues not covered by the
other sections. First, it sets forth the goal of the choice-of-law process, which is to identify and
apply the law of the state whose contacts with the parties and the dispute and whose policies
on the disputed issues make application of its law the most appropriate for those issues.97
91. For cases reaching the same result, see supra 23137. If the conduct and the injury occurred in different states (cross-border tort), the case is relegated to subsection (3)(c), which is described in the text,
infraat note 96.
92. Thus, under the Oregon statute, the common-domicile rule:(1)is phrased in bilateral, forum-neutral
terms, (2)is phrased in terms that neither favor nor disfavor recovery, (3)extends to cases in which the
parties are domiciled in different states to the extent the laws of those states on the disputed issue would
produce the same outcome, and (4)is confined to claims between the tortfeasor and the victim and does
not extend to claims by or against third parties, such as joint-tortfeasors (see id. 14.450). The rule is
subject to two exceptions:the above-noted exception for the conduct-regulating issue of determining the
standard of care by which to judge the injurious conduct, and a general escape, which is discussedlater.
93. For cases reaching the same result, see supra20418.
94.This exception is more likely to be applied to issues of loss-
distribution, as opposed to
conduct-regulation.
95. The request must be made by pleading or amended pleading, and shall be deemed to encompass
all claims and issues against the defendant so as preclude an inappropriate dpeage. Or. Rev. Stat.
15.440(3)(c)(B) (2015).
96. For cases reaching the same result, see supra21824, 23847.
97. What makes application of a states law most appropriate is not the perceived material justness of
that law, but rather that states contacts with the parties the dispute and [its] policies on the disputed
Conclusions
692
It then prescribes the process or method for achieving that goal. This process consistsof:
(1) Identifying the involved states (in addition to the forum state) by examining each
states relevant contacts with the parties and the facts that give rise to the dispute;98
(2) Identifying the substantive rules of each involved state that appear to be in material
conflict with the corresponding rules of another involved state, and then to identify the
policies embodied in those rules;and
(3) Evaluating the relative strength and pertinence of the conflicting policies of the
involved states in light of, and with due regard to, two sets of policies in order to
select the law whose application to the disputed issues is the most appropriate.99
The first set of policies are the general policies of tort law phrased in a most general
way:encouraging responsible conduct, deterring injurious conduct, and providing adequate
remedies for the conduct.100 The court is to assess the extent to which the choice of law accomplishes or impairs these general policies.
The second set includes multistate policies derived from Oregons membership in the interstate and international community. In making the choice of law, the decision-maker should
always keep in mind the needs and policies of the interstate and international systems,
including the policy of minimizing adverse effects on strongly held policies of other states.101
In summary, the statute provides that Oregon courts should:(1)always be mindful of the
adverse consequences of the choice-of-law decision on the strongly held policies of the involved
states, and (2)choose the law of the state that, in light of its relationship to the parties and the
dispute and of its policies rendered pertinent by that relationship, would sustain the most serious legal, social, economic, and other consequences of the choice-of-law decision.102
issues. Or. Rev. Stat. 15.445 (2015), opening sentence. To use Gerhard Kegels terms, the goal of the
choice-of-law process under the Oregon statute is to find the spatially best solution (conflicts justice), rather than the materially best solution. G. Kegel, Paternal Home and Dream Home:Traditional
Conflict of Laws and the American Reformers, 27 Am. J.Comp. L. 615, 61617 (1979).
98. Subsection (1)of Section 15.445 provides an illustrative non-hierarchical list of some of the contacts
that are usually relevant in tort conflicts: the place of the injurious conduct; the place of the resulting
injury; the domicile; habitual residence or pertinent place of business of each involved person; and the
place in which the relationship (if any) between the parties was centered.
99. What is to be evaluated is not the wisdom or soundness of a state policyeither in the abstract or in
comparison with the policy of another statebut rather the strength and pertinence of the policy at the
multistate level. Alegislative policy that a state strongly espouses for intrastate cases may be attenuated in
a particular multistate case that has only minimal contacts with that state. Similarly, the same policy may
prove far less pertinent even though the case has sufficient contacts with that state if the contacts are not
of the type that actually implicate that policy.
100. Or. Rev. Stat. 15.445(3)(a) (2015).
101. Or. Rev. Stat. 15.445 (3)(b) (2015).
102. Section 15.445 and the statute generally avoid using the term state interest in order to disassociate
the approach of this section and the statute from Professor Curries governmental interest analysis and
other modern American approaches that seem to perceive the choice-of-law problem as a problem of
interstate competition, rather than as a problem of interstate cooperation in conflict avoidance. Instead,
Section 15.445 calls for a focus on the adverse consequences of the choice-of-law decision on the policies
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c. Balancing Certainty withFlexibility

Like the Louisiana codification, the Oregon statute seeks an appropriate equilibrium between
the perpetually competing needs for certainty and flexibility by combining clear black-letter
rules with a flexible approach. It provides certainty through specific but narrow rules that
clearly designate the applicable law in several patterns of cases for which the accumulated
experience of American courts has produced clear and noncontroversial results.
It also provides flexibility by: (1) relegating the more difficult cases and issues to the flexible
residual approach of Section 15.445,103 and (2)subjecting the black-letter rules to escape clauses that
are anchored in the flexible approach of Section 15.445. The most general of those escape clauses
provides that, if a party demonstrates that the application to a disputed issue of a law other than that
which is designated by any of the black-letter rules of Section 15.440 is substantially more appropriate under the principles of [Section] 15.445, then the issue will be governed by that other law.104
All of the escape clauses operate on an issue-by-issue basis, thus providing further flexibility. They are tied to Section 15.445, because this section contains the general approach from
which the more specific rules of the other sections have been derived. When applicable, these
specific rules will provide prospective litigants with a measure of predictability, and will relieve
courts of the laborious analysis that Section 15.445 contemplates. However, as with any a priori
rules, these specific rules may, in exceptional cases, produce a result that is incompatible with
the principles of Section 15.445, or a result that is substantially less appropriate than the
result produced by the law that would have been applicable under those principles. The escape
clauses allow a court to avoid such a result by selecting another substantially more appropriate law under the principles of Section 15.445.
I I I . O P T I O N T HR EE: A NEW
C O N F L I C T S R ES TAT EM ENT
A. AN END AND A BEGINNING
Returning to the national scene, and acknowledging again that the prospects for either federal legislation or a uniform act are at best slim,105 one has to settle for the third-best option,
which is to begin the process for a new Conflicts Restatement. This is a much softer option106
because, unlike statutory (or even judicially established) rules, the rules of a Restatement are
of the involved states. Thus, like the Louisiana codification, see supra 680, the Oregon statute has adopted
a consequentialist approach.
103. For example, Section 15.450 relegates claims against third parties other than the tortfeasor and
between joint-tortfeasors to the flexible approach of Section 15.445. Section 15.435 does the same for
products liability cases that lack the necessary contacts for the application of Oregon law under Section
15.435.
104. Id. 15.445(4). Other specific escapes are discussedsupra.
105. See supra 677.
106. Indeed, although the term soft law is much more recent than the Restatements, a Restatement is
par excellence softlaw.
694
Conclusions
nonbinding and are thus risk-free. If the rules are bad, courts will ignore them. If they are
good, courts will adopt and apply them, with or without modifications.
The undersigned author was the first to call for a new Restatement, as early as 1997.107
He continued pressing the point in subsequent publications,108 and was later joined by other
authors.109 Almost two decades later, in November 2014, the American Law Institute decided
to authorize work for a Third Conflicts Restatement.110 Thus, the revolutionary cycle that began
in the 1960s will eventually come to an end. The process of drafting the new Restatement
(which will last for several years111) will provide an excellent opportunity to (1)extract, articulate, and evaluate the lessons of the choice-of-law revolution, both positive and negative; and
(2)re-examine the organizing principles and fundamental philosophical and methodological
precepts of the law of choice-of-law, and help shape its future direction.112 In this sense, the
new Restatement is not only the end of the revolutionary cycle, it is also a new beginning for
American conflicts law in its striving for maturity.
One hopes that the new Restatementwill:
(1) Provide for the many conflicts that the Restatement (Second) failed to cover, either
because those conflicts were uncommon in the 1960s or for other reasons;
(2) Revisit the areas for which the Restatement (Second) provides wrong-headed black-
letter rules, such as the situs rule for all matters involving immovable property;and
(3) Seek a new and proper equilibrium between the conflicting needs of certainty and flexibility, by providing more specific guidance for areas such as torts and contracts.
56 Md. L.Rev. 1246, at 1280 (1997) (I submit that the next natural step is to begin the process of preparing for a third conflicts restatement.).
108. See S. Symeonides, The Need for a Third Conflicts Restatement (And a Proposal for Tort Conflicts),
75 Ind. L.J. 437 (2000); Symeonides, Choice-of-Law Revolution, 20710, 23336, 25963, 34664; see
also S. Symeonides, A New Conflicts Restatement:Why Not?, 5 J. Priv. Intl L. 383, at 39497, 40506
(2009).
109. See Symposium: Preparing for the Next CenturyA New Restatement of Conflicts, 75 Ind. L.J.
399686 (2000) (containing articles by Shreve, Juenger, Richman, Reynolds, Symeonides, and Weinberg,
and comments by Borchers, Dane, Gottesman, Hill, Maier, Peterson, Posnak, Reimann, Reppy, Sedler,
Silberman, Lowenfeld, Simson, Singer, Twerski, and Weintraub). Only four of these authors opposed
a new Restatement: Juenger, Sedler, Simson, and Weintraub. For other writings discussing a possible new conflicts Restatement, see Symposium, American Conflicts Law at the Dawn of the 21st
Century, 37 Willamette L. Rev. 1298 (2001) (containing articles by Symeonides, Juenger, Kay, von
Mehren, Weinstein, and Weintraub, and commentaries by Cox, Nafziger, Sedler, Shreve, and Whitten);
Symposium, The Silver Anniversary of the Second Conflicts Restatement, 56 Md. L. Rev. 1193410
(1997) (containing articles by Borchers, Reynolds, Richman, Symeonides, Weinberg, and Weintraub);
M. Traynor, The First Restatements and the Vision of the American Law Institute, Then and Now, 32 So.
Ill. U.L.J. 145 (2007).
110. The Reporter for the Third Restatement will be Professor Kermit Roosevelt III, of the University
of Pennsylvania. Professors Laura E.Little, of Temple University, and Christopher A.Whytock, of U.C.-
Irvine, will serve as associate reporters.
111. The drafting of the first Restatement lasted for 12years (19221934). The drafting of the Restatement
(Second) lasted 17years (19521969).
112. This vehicle has the potential of being far more effective in influencing judicial opinion than the
writing of treatises or law review articles, which fewer and fewer judicial clerks tend to read. As the
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B.COVERAGE
Considerations of economy, speed, and likely impact suggest that the new Restatement should
cover only choice-of-law. It need not cover the other parts of conflicts lawnamely, jurisdiction, and recognition and enforcement of foreign judgmentswhere its impact is likely to be
minimal.
Jurisdiction is primarily a matter of constitutional law and secondarily of state and federal statutory law. It is doubtful that a new Restatement will do much to influence the way the
Supreme Courtat least this Courtreassesses its jurisprudence on this subject. Federal law is
also preeminent in the area of recognition of sister-state judgments, where the Full Faith and
Credit clause as interpreted by the Supreme Court leaves little room for ambiguity or judicial
discretion.
This leaves the recognition and enforcement of foreign-country judgments. But that subject is covered by two other ALI projectsnamely, the proposed federal statute113 and the
Restatement (Third) of the Foreign Relations Law,114 the latter of which is already in the process of being replaced by a Restatement (Fourth). Moreover, the majority of states (35) have
adopted either the old or the new Uniform Act on the same subject.115 Finally, if the current
negotiations at The Hague succeed in producing a new convention on this subject, and if the
U.S. Senate ratifies it, a new federal law implementing the convention will preempt the entire
field.116 Of course, it is possible that the negotiations will fail once again, or that the Senate will
not ratify the convention. But, even so, the two ALI projects and the Uniform Acts are capable
of serving this field reasonablywell.
success of the Restatement (Second) in influencing judicial opinion demonstratesespecially when compared to the rather slim judicial following of other alternative choice-of-law methodologies advanced
by academic commentatorscourts are much more likely to pay attention to a document that bears the
imprimatur of the ALI than to any law review article, even one authored by an intellectual giant. The
examples of Brainerd Currie, David Cavers, Arthur von Mehren, and Fritz Juengerto mention only four
of the giants who are no longer with usare sufficient to make thispoint.
113. See American Law Institute, Recognition and Enforcement of Foreign Judgments: Analysis and
Proposed Federal Statute (2006).
114. See American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States
481486 (1987).
115.Twenty jurisdictions have adopted the (new) Uniform Foreign-
Country Money Judgments
Recognition Act of 2005. See http://www.uniformlaws.org/LegislativeFactSheet. aspx?title=Foreign
%20Money%20 Judgments%20Recognition%20Act . (last visited on Nov. 19, 2015)All but two of those
jurisdictions (Alabama and Indiana) had previously adopted the old Uniform Foreign Money Judgments
Recognition Act of 1962. Fifteen other jurisdictions adopted the old Act, but not the new one. Thus, 35
jurisdictions have adopted either the old or the newAct.
116. The objective of these negotiations, which are conducted under the auspices of the Hague Conference
of Private International Law, is to produce a new worldwide convention on recognition and enforcement
of foreign judgments. This is the second round of negotiations on this subject. The first round began in
1992 and ended with a narrower convention, the Hague Convention of 30 June 2005 on Choice of Court
Agreements. For the text of this convention, as well as all related documents, see http://www.hcch.net/
index_en.php?act=text.display&tid=134. For the status of the second round, see http://www.hcch.net/
index_en.php?act=text.display&tid=149 (last visited on Nov. 18, 2015). The author is a member of the
Working Group that is drafting the preliminary text of the new convention.
Conclusions
696
C. FILLING THEGAPS AND UPDATING

THECONTENT OFTHE RESTATEMENT (SECOND)
Because the drafting of the new Restatement is likely to beginbut hopefully not endwith a
revision of the Restatement (Second),117 it is useful to identify the areas in which the 46-year-
old Restatement is in urgent need of updating. The Restatement (Second) did a decent job in
providing for conflicts that were common during, and prior to, the time of its drafting. It has
plenty to say regarding conflicts arising out of traffic accidents, or involving guest-statutes,
intra-family immunities, charitable immunities, and the like. But, while some of these conflicts
have all but disappeared in recent years,118 other types of conflicts have begun to emerge, such
as cyberspace conflicts, or conflicts arising from same-sex relations, or covenant marriages.
Understandably, the Restatement (Second) has little to say about these new conflicts, which
have increasingly occupied American courts in the last two decades (and which will continue
to do so in the future). The new Restatement should address these new conflicts.
However, the Restatement (Second) is lacking even with regard to more traditional conflicts that existed at the time of its drafting, even if some of them were not as frequent then as
they are today. Examples include maritime conflicts, conflicts involving stolen works of art or
cultural property, and conflicts arising from interstate arbitration.119
Conflicts involving insurance coverage for multiple risks situated in multiple states, such as
insurance for environmental pollution, provide another example. During the last three decades,
we have witnessed a virtual explosion in litigation involving such cases, most of which are as
complex as they are important, if only because they implicate the interests of parties other
than those bound by the insurance contract.120 The Restatement (Second) contains only one
brief section on the whole subject of fire, surety or casualty insurance:Section 193 provides a
presumptive rule in favor of the law of the state of the principal location of the insured risk.121
The fact that this section speaks of a risk in the singular reveals only some of the problems
one encounters in applying this section to the mega-conflicts arising in todays multisite and
multistate disputes. The comments accompanying Section 193 anticipate the possibility of an
insurance contract covering multiple risks, and they suggest treating each risk as if it were
covered by a separate contract. However, besides being merely a suggestion, this notion offers
insufficient guidance for courts encountering these mega-conflicts.
The Restatement (Second) is equally inadequate to handle the complex choice-of-law issues
arising in many of the mega torts that have been the object of extended and protracted litigation during the last three decades. Among them are the asbestos cases, Agent Orange cases,
117. For a proposal for a radically new Restatement, see Weinberg, supra note 66.
118. For example, at the time of the Second Restatements drafting, more than 30 states had a guest-
statute. See Symeonides & Perdue, Conflict of Laws 106. Today, only three states have such a statute
Alabama, Indiana, and Nebraska. See Ala. Code 32-1-2 (2015; Ind. Code 34-30-11-1 (2015); and Neb.
Rev. Stat. 2521.237 (2015).
119.The ALI recently began work on a Restatement on the U.S. Law of International Commercial
Arbitration, but apparently, that Restatement will not cover domestic interstate arbitration, which has
seen a dramatic increase in recentyears.
120. See supra Chapter12.
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DES cases, breast implant cases, and the numerous cases arising from airplane disasters.122
The ALI has recognized the need for choice-of-law rules for these cases, and has proposed
its Complex Litigation Project.123 However, that Project presupposes structural changes in the
federal system that are unlikely to materialize in the foreseeable future. Further, the Project,
if adopted, will apply only to cases that are consolidated for trial by federal courts under the
Multidistrict Litigation Statute.124 Nothing has been done, or proposed, for nonconsolidated
cases handled by federal or state courts, or for class actioncases.
In fact, the Restatement (Second) is inadequate even for single cases arising from products
liability conflicts, or conflicts involving the issue of punitive damages.125 One could argue that
Section 145, the general section for tort conflicts, is as available for products liability conflicts
as it is for other tort conflicts. But that is precisely the problem. Section 145 may be workable in
guest-statute conflicts, but not in the more complicated and sui generis products liability conflicts. Similarly, one could argue that Section 171, which applies to damages in general, also
applies to punitive damages in particular.126 But, again, this is precisely the problem. Punitive
damages involve different policies than compensatory damages. The former are designed to
punish and deter tortfeasors, whereas the latter are designed to repair the harm by compensating the victim. Achoice-of-law rule focused on the domicile of the parties (as Section 171
seems to be)127 may be sound for compensatory damages, but not for punitive damages.
Perhaps the most glaring omission is the failure of the Restatement (Second) to address
international conflicts. As Mathias Reimann noted, the Restatement contains very few references to, and even fewer rules about, international conflicts, and it allocates less than two
percent (about 20 of its over 1200 pages) of text and comment to issues involving foreign
countries.128 Especially its choice-of-law part, is almost completely devoid of international
perspectives.129 The reasons for this omission are:(1)the Restatements assumption that international conflicts do not differ qualitatively from intra-national conflicts, (2)the low number
of international conflicts at the time of the Restatements drafting, and (3)the insularity that
characterized American conflicts scholarship at thattime.
Much has changed since then. For instance, a perusal of the annual choice-of-law surveys
published every year in the American Journal of Comparative Law shows a dramatic increase
in the number and importance of cases dealing with international conflicts.130 This increase is
122. See S. Symeonides, Choice-of-Law Revolution 26869.

124. 28 U.S.C. 1407 (2015).
125. For a discussion of such conflicts, see supra 249341.
126. See Restatement (Second) 171cmt. d ( (providing that this section applies to exemplary damages).
127. Like many other sections in the Second Restatements chapter on Wrongs, Section 171 is not self-
executing but simply refers to the law selected by application of the rule of section 145 as the law that
will determine the measure of damages. However, the comments accompanying Section 171 suggest that
the parties common domicile is likely to be the state of the most significant relationship. Seeid.
128. M. Reimann, A New Restatement for the International Age, 75 Ind. L.J. 575, 576, 577 (2000).
129. Id.
130. See, e.g., S. Symeonides, Choice of Law in the American Courts in 2014: Twenty-Eight Annual
Survey, 63 Am. J.Comp. L. 299, 30521 (2015); S. Symeonides, Choice of Law in the American Courts in
2013:Twenty-Seventh Annual Survey, 62 Am. J.Comp. L. 223, 28196 (2014); S. Symeonides, Choice of
698
Conclusions
also reflected in the creation of new courses on transnational litigation, and an equally dramatic increase in the literature on subjects such as human rights and international economic
conflicts, including the extraterritorial reach of federal statutes on subjects such as antitrust,
copyrights and patents, employment, environment, and others.
The Restatement (Second) has little to say about any of these conflicts. As Reimann pointed
out, the Restatement is hopelessly behind the times with respect to the internationalization of
private law and litigation,131 and it simply fails to address most of the problems that currently
plague the courts in international cases.132 To be sure, the Restatement (Third) of Foreign
Relations addresses some of these problems. But, as Reimann noted, these issues are not
issues of American foreign relations (though they touch on them), but of international civil
litigation [and] have become part of the conflicts menu[.]133 In short, [a]s the importance
of international issues keeps growing, the Second Restatement keeps falling further behind.134
The new conflicts Restatement, if done properly, can close thisgap.
In the area of contract conflicts, the Restatement (Second) appears to have fewer gaps and
to be less deficient than in other areas. In particular, Section 187, which provides the test for
enforcing choice-of-law clauses, is one of the Restatements most successful, and popular, provisions. Even there, however, the need for an update is evident. For example, a good case can
be made for differentiating between consumer contracts and employment contracts, on the one
hand, and business-to-business contracts, on the other hand, and subjecting party autonomy
to stricter limitations in the former than in the latter contracts. In this respect, the European
experience exemplified by the Rome Convention135 and now the Rome I Regulation136 can
be instructive, as can the ill-fated attempt to revise the pertinent provision of the Uniform
Commercial Code in 2001.137
Second, Section 187 speaks of the law of the state chosen by the parties,138 and thus it does
not contemplate the possibility of the parties choosing nonstate norms, such as the various
Law in the American Courts in 2011:Twenty-Fifth Annual Survey, 60 Am. J.Comp. L. 291, 35767 (2012);
S. Symeonides, Choice of Law in the American Courts in 2010:Twenty-Fourth Annual Survey, 59 Am.
J.Comp. L. 303, 30620 (2011); S. Symeonides, Choice of Law in the American Courts in 2009:Twenty-
Third Annual Survey, 58 Am. J. Comp. L. 227, 202304 (2010); S. Symeonides, Choice of Law in the
American Courts in 2008:Twenty-Second Annual Survey, 57 Am. J.Comp. L. 269, 31729 (2009).
131.Reimann, supra note 128, at581.
132. Id. at 582. See also id. (concluding that [f]rom the perspective of modern transnational litigation,
the Second Restatement is close to useless[,] because [i]t tells the bench and bar nothing about
the degree of due process protection for foreign defendants, service of process abroad, arbitration of
transnational disputes, suits against foreign sovereigns, human rights claims, international conventions,
antitrust enforcement overseas, injunctions against foreign litigants from proceeding in their own courts,
or discovery of evidence in foreign countries.).
133.Reimann, supra note 128, at581.
134. Id. at583.
135. See EEC Convention on the Law Applicable to Contractual Obligations 1980, O.J. (L266).
136. See Regulation (EC) No 538/2008 of the European Parliament and of the Council of 17 June 2008
on the Law Applicable to Contractual Obligations (Rome I), 2008 O.J. (L 177/6). For a discussion from
the American perspective, see S. Symeonides, Party Autonomy in Rome I and II from a Comparative
Perspective, 28(2) Nederlands Intl Privaatrecht 191205 (2010).
137. See U.C.C. 1-302 (2001 Revision) (withdrawn in2009).
138. Restatement (Second) 187 ( (emphasis added).
The NextStep
699
types of soft law that have become so ubiquitous in recent years.139 On closer examination, the
Restatement permits the choice of nonstate norms with regard to issues that the parties could
have resolved by an explicit provision in their agreement directed to that issue140 (doctrine of
incorporation), but not with regard to other issues. Perhaps this distinction should be maintained,
perhaps not.141 The drafting of a new Restatement will provide an excellent opportunity to address
this issue, as well as all other issues regarding the role of nonstate norms in contract conflicts.
Third, Section 187 speaks of the law of the state chosen by the parties to govern their contractual rights and duties.142 The quoted phrase raises a question regarding the parties power
to choose in advance the law that will govern noncontractual issues (such as tort or tort-like
issues, time-limitations, and the like) arising from their contractual relationship. The case law
on this question is divided. Although some cases apply Section 187 literally and hold that the
parties power to choose the applicable law is confined to contractual issues, other cases assume
that parties are free to submit to the chosen law noncontractual issues, provided that the parties use clear language expressing such an intent. At the same time, these cases tend to scrutinize clauses that purport to encompass noncontractual issues than clauses confined to purely
contractual issues much more closely, and, more often than not, courts hold that the clause did
not include tort issues, or that it is unenforceable as contrary to public policy.143 In contrast, the
European Unions Rome II Regulation allows pre-dispute choice-of-law agreements for noncontractual issues if:(1)the parties are pursuing a commercial activity, (2)the agreement is
freely negotiated, and (3)the contractually chosen law does not derogate from the mandatory rules of a state in which all the elements relevant to the situation are located, or, in
certain cases, from the mandatory rules of Community law.144 Although this provision does not
adequately protect weak parties in certain commercial relationships, such as franchises,145 it is
certainly worth considering in drafting a new Restatement.
Finally, American courts continue to be divided in determining which law governs the
validity and interpretation of choice-of-forum clauses, especiallybut not onlywhen those
clauses are part of a contract that also contains a choice-of-law clause.146 The Hague Choice of
Court Convention may provide some useful ideas,147 but there is every reason to expect that the
new Restatement can come up with much better solutions.
139. See supra 40609.

141. Article 3 of The Hague Principles on Choice of Law in International Commercial Contracts authorizes the choice of nonstate norms (called rules of law) that are generally accepted on an international,
supranational or regional level as a neutral and balanced set of rules, unless the law of the forum provides otherwise. For critical discussion, see S. Symeonides, The Hague Principles on Choice of Law for
International Contracts:Preliminary Observations, 61 Am. J.Comp. L. 873 (2013).
142. Restatement (Second) 187(2) ( (emphasis added).
143. For citations, see supra 391400.
144. See Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on
the Law Applicable to Non-contractual Obligations (Rome II), 2007 O.J. (L 199)40, art.14.
145. See S. Symeonides, Rome II and Tort Conflicts: A Missed Opportunity, 56 Am. J. Comp. L. 173,
21517 (2008).
146. See supra 44260.
147. See Arts. 5(1) and 6 of The Hague Convention on Choice of Court Agreements (2005).
Conclusions
700
D. BREAKING THESITUSTABOO
The drafters of the new Restatement should also revisit the few black-letter rules of the
Restatement (Second). Although these rules are few in number, they are vast in scope. Not surprisingly, most of them are found in the area that the Restatement (Second) calls Property148
which includes successions and marital propertyand particularly in the part dealing with
land.149 These rules restate the traditional dogma by assigning to the law of the situs of the
land150 virtually all questions involving inter vivos conveyances,151 marital property,152 and
intestate153 or testate154 succession.
Ironically, these rules simply demonstrate that, when the Restatement (Second) is not
too equivocal, it is plainly wrong. The adherence to tradition, which the situs rule exemplifies, might have been understandable in the 1960s, but it has now become an impediment to
progress. Today, it is difficult to find a sound policy reason for inexorably subjecting all issues
involving land to the law of the situs. Although the situs state has a legitimate interest in matters of land utilization and issues involving clarity and security of title, that state has no interest
in controlling issues such as the capacity of a disposer, the capacity or worthiness of an heir or
legatee, the interests of a surviving spouse, the order of succession, the formal validity of a will,
or a transaction involving land.155 The time for debunking the situs taboo is long overdue, and
the new Restatement provides a perfect opportunity for doingso.
E. FINDING THEGOLDEN MEDIUM

BETWEEN CERTAINTY AND FLEXIBILITY
The new Restatement should seek a new and proper equilibrium between the perpetually conflicting needs for certainty and flexibility.156 It should provide more specific guidance for areas
such as torts and contracts, for which the Restatement (Second) provides insufficient guidance
149. See id. 222243. For other black-letter rules, see id. 245255 (inter vivos transactions involving
movables); 260265 (succession to movables). For other unilateral choice-of-law rules, see id. 285
(divorce); id. 286 (nullity of marriage); id. 289 (adoption).
150. The applicable law is almost invariably the law that would be applied by the courts of the situs.
Restatement (Second) 223, 225232, 236, 239242.The above quoted phrase is often accompanied by
the prediction that these courts will usually apply their ownlaw.
151. See id. 223 (subjecting to situs law all issues affecting validity of conveyance, including issues of
capacity and formal sufficiency).
152. See id. 234 (providing that situs law determines the effect of marriage upon land owned by a
spouse at the time of marriage or acquired during marriage).
153. See id. 236 (subjecting to situs law all issues of intestate succession to land); id. 237 (addressing
legitimacy as affecting succession); id. 238 (addressing adoption as affecting succession).
154. See id. 239 (addressing validity and effect of will); id. 241242 (addressing interest of surviving
spouse).
155. See supra 61719.
156. For the perpetual tension between these needs in international conflicts law, see S. Symeonides,
Codifying Choice of Law 171217.
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701
through its near-rules, pointers, or non-rules.157 Anew Restatement that leaves intact the
non-rules of the Restatement (Second)or replaces them with equally equivocal near-rules
is not worth undertaking.
It is worth recalling that even the legendary Willis Reese, the chief drafter of the Restatement
(Second), believed that the formulation of rules should be as much an objective in choice of
law as it is in other areas of law.158 However, because at that time the case law on tort and contract conflicts was too fluid to yield such rules, Reese opted instead for formulations that were
broad enough to permit further development in the law,159 but which, in due time, would permit the development of more definite160 or precise161 choice-of-law rules. As the discussion
in Chapter8 demonstrates, Reeses hope has materialized in large part:American courts have
produced uniform results in several patterns of tort conflicts.162 These results should be the
basis, or the starting point, for more definitive rules in the new Restatement.
Predictably, any mention of definite rules will encounter opposition. Some of the reasons
are innate in the common law tradition in general, and some grow from the dismal experience with the rules of the first Restatement.163 However, it is time to overcome this anti-
rule syndrome. To assume that the only rules possible are those drafted nine decades ago by
Joseph Beale is not only to ignore the rich rule-making experience gained in the interim, but
also to severely underestimate the capacity of American conflicts law to renew itself. Thanks
to Beales Restatement, we know what to avoidbroad, all-embracing, inflexible, monolithic
rules, derived from dogma rather than experience and based on a single connecting factor
chosen on metaphysical grounds. Thanks to the choice-of-law revolution, we also know what
to aim fornarrow, flexible, content-oriented and issue-oriented rules, based on experience,
with occasional built-in escape clauses that would allow these rules to grow and to adjust to
changing societal needs and values.164
157. See supra 11315.
158. W.L.M. Reese, General Course on Private International Law, 150 Recueil des Cours 1, 61 (1976).
159. W.L.M. Reese, The Second Restatement of Conflict of Laws Revisited, 34 Mercer L. Rev. 501, 518
(1983).
160. Id. at519.
161.Reese, supra note 158, at 62 (arguing that the conflicts experience since the revolution had reached
the stage where most areas of choice of law can be covered by general principles which are subject to
imprecise exceptions. We should press on, however, beyond these principles to the development, as soon
as our knowledge permits, of precise rules.).
162. See supra 22729, 24749.
163. In contrast, most other countries answer easily and affirmatively the question of whether choice-
of-law rules are necessary. As a recent comprehensive study documents, during the same 50-year period,
84 countries have enacted choice-of-law codifications. See S. Symeonides, Codifying Choice of Law 134.
This is much more than in all the preceding years in the history of conflicts law. In addition, in the last
two decades, the European Union, which technically is not even a federation, has enacted 15 Regulations
dealing with choice-of-law. See id.2630.
164. See Leflar, Choice-of-Law Statutes, supra note 3, at 952 (recognizing that flexibility can be built into
a statute just as it can be and is more often prescribed in the common law); Kozyris, supra note 4, at
580 ([F]ixed but revisable rules which lead to good results in the overwhelming majority of the cases,
and which are supplemented by some general corrective principles to mitigate injustice in the remaining
cases, are superior to, and incredibly more efficient than, a system in which each case is decided as if it
were unique and of first impression.).
702
Conclusions
In the twenty-first century, the choice is not between excessive rigidity and excessive flexibility, or between prefabricated mechanical prescriptions and ad hoc individualized dispensations.165 It is possible to have our cake and eat it toonamely, to have certainty tempered with
flexibility.166 As the Louisiana and Oregon codifications illustrate, it is feasible to construct a
new breed of choice-of-law rules that embody the lessons learned from the American conflicts
experience and combine certainty with flexibility. Although reasonable people will disagree
on which exact dosages will produce the optimum equilibrium, it is far more constructive to
devote our energies to this task than to assume in advance that such equilibrium is unattainable.
In this spirit, and without implying that the new Restatement should adopt the rules of
those codifications, this author offers the following suggestions regarding the desired attributes
of the rules of the new Restatement:
(1) The new rules should cover only patterns, cases, or issues for which the accumulation
of judicial experience permits the articulation of tested and uncontroversial rules based
on judicial precedent. The remaining cases or issues should be relegated to an open-
ended approach, perhaps similar to that provided by the combination of Sections 6
and 145 of the Second Restatement for torts, or Sections 6 and 188 for contracts. In
due time, this approach will produce new rules, either through judicial application and
the doctrine of stare decisis, or through a future revision of the new Restatement.
(2) Unlike the rules of the First Restatement, the new rules should be narrow and built
around individual issues, rather than broadly covering entire causes of action. In other
words, the new rules should provide for, and facilitate, an issue-by-issue analysis,
which is one of the breakthroughs of the American choice-of-law revolution.167
(3) When necessary, the new rules should take into account the content of the conflicting
substantive laws and their underlying policies.168
(4) In appropriate and well-defined cases, the new rules should allow for consideration of
the substantive result that the chosen law will produce.169 Finally,
(5) The new rules should be accompanied by escape clauses anchored on the new
Restatements general approach, and authorizing judicial deviation from the rules in
appropriate, exceptional cases.170
165. D.F. Cavers, Legislative Choice of Law:Some European Examples, 44 So. Cal. L.Rev. 340, 360 n.177
(1971) ([t]he pursuit of justice in the individual case does not require the abandonment of rules but
rather the formulation of rules with their just operation in particular situations in view.).
166. See E. Bodenheimer, The Need for a Reorientation in American Conflicts Law, 29 Hastings L.J. 731,
745 (1978) (Is it possible to find a solution to the problem which proceeds from the basic assumption
that certainty and elasticity in legal methodology are not polar opposites, between which a clearcut [sic]
choice must be made but complementary values, which in some fashion must be meshed together?).
167. For the benefits of issue-by-issue analysis and the reputed but exaggerated risks of dpeage, see S.
Symeonides, Issue-by-Issue Analysis and Dpeage in Choice of Law:Cause and Effect, 45 U. Tol. L.Rev.
751 (2014).
168. For a discussion of the benefits and limitations of content-oriented choice-of-law rules and how to
draft them, see S. Symeonides, Choice-of-Law Revolution, 394404.
169. For a discussion of how to define these cases, see id. 40911, 437. See also Symeonides, Codifying
Choice of Law, 28588.
170. For a discussion of the need for such escapes, see Symeonides, Choice-of-Law Revolution 41519.
For a comparison with the much tighter escapes found in European codifications, see S. Symeonides, The
The NextStep
703
The above list of suggestions is open to many criticisms. One objection may be that the list
appears designed to please everybody. Another criticism may be that the list is too eclectic
in that it combines elements from different philosophical approaches. Indeed, point (3)above
brings to mind the approach of Cavers and secondarily Currie, whereas point (4)sounds like
Leflars approach. To be sure, there are similarities, but there are also important differences.171
Moreover, the suggestions in points (3)and (4)contain built-in limitations (indicated by the
phrases when necessary and in appropriate cases) that, inter alia, would prevent their cumulative use in the same cases. In any event, one need not apologize for defending the eclectic, but
careful, combination of diverse, but compatible, approaches originating from different sources.
Eclecticism is not a mortal sin. Eclecticism is problematic when it is the result of subservient imitation, or intellectual laziness. Uncritical, undigested, and uncoordinated picking and
choosing can lead to internal contradictions and incoherence. But a studied, adapted, and
thoughtful eclecticism can combine the best of both worlds. It can live up to the true meaning
of this Greek word, which literally means choosingwell.
Conversely, methodological or philosophical purity should not be an end in itself when
dealing with complex multistate problems that by definition implicate conflicting national and
societal values. We need look no further than the First Restatement to realize that such purity
does not guarantee success. Virtually no contemporary conflicts system can claim methodological purity;172 and it is doubtful that any system yearns for it, or that it should.
After centuries of intellectual combats between rival theories, such as unilateralism and
multilateralism, jurisdiction-selection and content-oriented law-selection, and conflicts justice and material justice, it is time to realize that no single school of thought has a monopoly
on wisdom, and none of them alone can answer all conflicts problems. When properly coordinated with each other, ideas derived from different schools can produce a much better system
than any schoolalone.
Admittedly, even if everybody agrees that the rules of the new Restatement should possess
the attributes described in the above list, there will still be many disagreements about the precise content and shape of these rules, and of the new Restatement in general. However, such disagreements are both inevitable and healthy. If the process of drafting the new Restatement will
be as open as that of the Restatement (Second), most of these disagreements can be resolved.
In any event, it is certainly preferable to air such disagreements in an open and frank debate,
rather than to sit around lamenting the current state of affairs, which both the proponents and
the opponents of a new Restatement condemn.
American Revolution and the European Evolution in Choice of Law:Reciprocal Lessons, 82 Tul. L.Rev.
1741, at 177382 (2008).
171. For the differences, see Symeonides, Choice-of-Law Revolution 394404 (Cavers), 36984, 38994
(Currie), 40411 (Leflar).
AP P ENDI X
List ofChoice-of-Law Codifications, EU

Regulations, and Conventions
I.CODIFICATIONS
Afghanistan:Civil Code of the Republic of Afghanistan, arts. 335 (1977).
Albania: Law No. 10428 of 2 July 2011 on Private InternationalLaw.
Algeria: Algerian Civil Code, arts. 9
24, as amended by Ordinance No. 75-
58 of 26
September1975.
Angola: Civil Code of Angola, arts. 1463, Law-Decree 496 of 25 November1977.
Argentina: Anteproyecto de Cdigo Civil y Commercial de la Nacin (2012) by Commisin
de Reformas decreto presidencial 191/2011, arts. 25942671.
Armenia: Civil Code of Armenia as adopted in 1998, Division 12, arts. 12531293.
Austria:Bundesgesetz vom 15. 6.1978 ber das internationale Privatrecht, as subsequently
amended.
Azerbaijan: Law of 6 June 2000 on Private InternationalLaw.
Belarus: Civil Code of Belarus (Law of 7 December 1998, as amended as of December 28,
2009), arts. 10931136.
Belgium: Code de droit international priv (Loi du 16 juillet2004).
Bosnia-Herzegovina: [Former Yugoslav] Act of 15 July 1982 on the Resolution of Conflicts
of Laws with Laws and Regulations of Other Countries in Certain Matters.
Bulgaria: Bulgarian Private International Law Code (Law No. 42 of 2005 as amended by Law
No. 59 of2007).
Burkina Faso: Code of Persons and Family, arts. 988
1050 (Law VII 0013 of 19
November1989).
Burundi: Code of Persons and Family, arts. 110, 94 (Decree-Law No. 1/1 of 15 January 1980
as revised by Decree-Law No. 1/024 of 28 April1993).
705
706
Appendix
Cape Verde: Civil Code of Cape Verde, arts. 1463, re-enacted by Legislative Decree No. 12-
C/97 of June 30,1997.
Central African Republic: Law No. 65-71 of 3 June 1965 regarding the obligatory force
of laws and the conflict of laws in time and space, arts.3845.
Chad: Ordinance No. 6 of 21 March 1967 for the Reform of Judicial Organization, arts. 7072.
China: Statute of Application of Law to Foreign Civil Relations, adopted at the 17th session
of the Standing Committee of the 11th National Peoples Congress on October 28,2010.
Congo-Brazzaville: Family Code, arts. 38
39, 155, 819-
832 (Law No. 073/
1984 of
17.10.1984).
Costa Rica: Civil Code of Costa Rica arts. 2330, as revised by Law No. 7020 of 6 January1986.
Croatia: [Former Yugoslav] Act of 15 July 1982 on the Resolution of Conflicts of Laws with
Laws and Regulations of Other Countries in Certain Matters.
Cuba: Civil Code of 1987, arts. 1121, adopted by Law No. 59 of 16 July1987.
Czech Republic: Law No. 91 of 25 January 2012 on Private International Law, effective
January 1,2014.
Czechoslovakia: Act 97 of 1963 on Private International law and Procedure.
East Timor: Civil Code of East Timor, arts. 1362, re-enacted by Law No. 10/2011 of 14
September2011.
Ecuador: Ecuador Civil Code as revised by Law of 10 May 2005, arts. 1317, 43, 9193, 103,
129, 137, 139, 1019, 10571058, 10871089, and2337.
El Salvador: Civil Code of El Salvador, arts. 1418, 5355, 617, 740, 966, 994995, 1021,
1333, and 2160, as revised by Law-Decree No. 724, 30/09/1999.
Estonia: Private International Law Act of 27 March2002.
Finland: Act on Law Applicable to Sale of Goods of International Character of 1964; Marriage
Act (Act 234/1929, as amended); Code of Inheritance (Act 40/1965 as amended).
FYROM: (Former Yugoslav Republic of Macedonia): Private International Law Act of 4
July2007.
Gabon: Civil Code arts. 2577 (Law No. 15/1972 of 29.7.1972 adopting Part Iof CivilCode).
Georgia: Act No. 1362 of 29 April 1998 on Private InternationalLaw.
Germany: Gesetz zur Neuregelung des IPR vom 25.7.1986; Gesetz zum IPR fr auervertragliche Schuldverhltnisse und das Sachenrecht vom 21.5.1999.
Guatemala: Ley del Organism Judicial, arts. 2135 (Decreto 2-89, of 18.3.1989).
Guinea-Bissau: Civil Code of Guinea-Bissau, arts. 1465, re-enacted by Guinea-Bissau Law
No. 1/73 of 27 September1973.
Hungary: Law-Decree No. 13 of 1979 on Private InternationalLaw.
Italy: Act No. 218 of 31 May 1995 (Riforma del sistema italiano di diritto internazionale
privato).
Japan: Law No. 10 of 1898 as Newly Titled and Amended on 21 June 2006, effective 1 January
2007, on the General Rules of Application ofLaws.
Jordan: Jordanian Civil Code of 1 August 1976, arts. 13,1129.
Kazakhstan: Civil Code of the Republic of Kazakhstan, arts. 11581124, enacted by Law No.
409-1 ZRK of July 1,1999.
Korea (North): The Law of the Democratic Peoples Republic of Korea on External Civil
Relations, adopted by Resolution No. 62 of the Standing Committee of the Supreme Peoples
Assembly on September 6, 1995, and amended by Decree No. 251 of the Presidium of the
Supreme Peoples Assembly on December 10,1998;
Appendix
707
Korea (South): Law 6465 of 7 April 2001, Amending the Conflict of Laws Act of the Republic
ofKorea.
Kyrgyzstan:Law of 5 January 1998 revising Civil Code arts. 11671208.
Latvia: Latvian Civil Code (1993), arts.825.
Liechtenstein: Private International Law Act of1996.
Lithuania: Civil Code of the Republic of Lithuania of 2000, arts. 1.101.62.
Louisiana: Book IV of the Louisiana Civil Code, enacted by La. Act No. 923 of1991.
Macau: Civil Code of Macau, arts. 1362, Approved by Law-Decree No. 39/99 of 3 August1999.
Madagascar: Arts. 2035, Ordonnance No. 62-041 du 19 septembre 1962 relative aux dispositions gnrales de droit interne et de droit international priv, complte par la loi no.98-
019 du 2 dcembre1998.
Mauritania: Code des Obligations et des Contrats, arts 611 (Ordonnance no.89-126 du 14
septembre1989).
Mexico: Arts. 1215, 2934, 27362738 of Civil Code for the Federal District in Ordinary
Matters and for the Entire Republic in Federal Matters, as amended by Decree of 11
December1987.
Moldova: Moldova Civil Code (Law 1107 of June 6, 2002), arts. 15781625.
Mongolia: Mongolian Civil Code, arts. 539552, enacted January 2,2002.
Montenegro: [Former Yugoslav] Act of 15 July 1982 on the Resolution of Conflicts of Laws
with Laws and Regulations of Other Countries in Certain Matters.
Mozambique: Mozambique Civil Code, arts. 1465, enacted by Portuguese Ordinance No.
22,869 of 4 September1967.
Netherlands: Act of 19 May 2011 adopting and implementing Book 10 (Private International
Law) of the Dutch CivilCode.
Oregon: Or. Rev. Stat. 15.30015.380 (2001); Or. Rev. Stat. 15.400B15.460 (2009).
Panama: Panama Civil Code, arts. 1, 58, 631632, 765770, as revised by Law No. 18 of1992.
Paraguay: Civil Code of Paraguay as revised by Law No. 1183 of 18 December 1985, arts.
1126, 101, 132136, 163167, 177178, 297, 699, 1196, 1199, 2184, 24472448, 2609, and
2626; Law 5393 of 2015 Regarding the Applicable Law to International Contracts.
Peru: Peruvian Civil Code of 1984, Book X, arts. 20462111.
Poland: Act of Private International Law of 4 February2011.
Portugal: Portuguese Civil Code, arts. 1465, as revised in 1966 and subsequently.
Puerto Rico: Proyecto de Ley para la Revisin y Reforma del Cdigo Civil De Puerto Rico,
Libro Sptimo (Derecho Internacional Privado), 25 de mayo2002.
Qatar: Arts. 1038 of the Civil Code of Qatar, as amended by law 22/2004 of 8 August2004.
Quebec: L.Q. 1991, ch. 64, composing Book Ten of the Quebec Civil Code (arts. 30763168).
Romania: Law No. 105 of 22 September 1992 on the Settlement of Private International Law
Relations.
Russia: Civil Code of the Russian Federation, Part III, arts. 11861224, enacted by Federal law
no.146 of 26 November2001.
Rwanda: Law no.42/1988 (Preliminary Title and First Book of the Civil Code) in force since
May 1,1992.
Senegal: Family Code of Senegal, arts. 840854, Law No. 76-61 of June1972.
Serbia: Serbian Ministry of Justice Draft of July 20, 2012 on Private International LawCode.
Slovakia: Czechoslovakian Act 97 of 1963 (effective April 12, 1964)on Private International
Law and Procedure, as subsequently amended
708
Appendix
Slovenia: Private International Law and Procedure Act of 30 June1999.

Somalia: Civil Code of Somalia, arts. 1028, Law no.37 of 2 July1973.
Spain: Spanish Civil Code, arts. 816, as revised in 1974 and subsequently.
Sudan: Civil Code of Sudan, arts. 1016, 655, 684, Law of 24 May 1971 as amended by Law
of 14 February1984.
Switzerland: Bundesgesetz ber das Internationale Privatrecht (IPRG) vom 18. Dezember
1987Loi fderale sur le droit international priv (LDIP) du 18 dcembre1987.
Taiwan: Act Governing the Application of Laws in Civil Matters Involving Foreign Elements,
promulgated on May 26,2010.
Tajikistan: Civil Code of the Republic of Tajikistan, arts. 11911234, enacted by Law No. 3
of March 1,2005.
Tunisia: Code of Private International Law (Law No. 98-97 of 27 November1998).
Turkey: Law No. 5718 of 27 November 2007 adopting the Turkish Code of Private International
Law and International Civil Procedure.
U.A.E. (United Arab Emirates):Code of Civil Transactions of the United Arab Emirates, arts.
13,1018.
Ukraine: Law of 23 June 2005 No. 2709-IV on Private International Law, as subsequently
amended.
United Kingdom: Private International Law (Miscellaneous Provisions) Act of 8 November
1995 (c42).
Uruguay: Proyecto de Ley General de Derecho Internacional Privado, 19.1.2009
Uzbekistan: Civil Code of the Republic of Uzbekistan, arts. 11581199, enacted by Law 257-I
of 29.08.1996.
Venezuela: Act of 6 August, 1998 on Private InternationalLaw.
Vietnam: Civil Code of the Socialist Republic of Vietnam of 1995, Arts. 826838.
Yemen: Law of 29 March 1992 on Private InternationalLaw.
Yugoslavia: Act of 15 July 1982 on the Resolution of Conflicts of Laws with Laws and
Regulations of Other Countries in Certain Matters.
II. EU REGULATIONS (AND CONVENTIONS)

Brussels Convention: Brussels Convention of 27 September 1968 on jurisdiction and the
enforcement of judgments in civil and commercial matters.
Lugano Convention: Convention on Jurisdiction and the Enforcement of Judgments in
Civil and Commercial Matters, Done at Lugano on 16 September1988.
Brussels IRegulation: European Community Council Regulation (EC) No. 44/2001 of 22
December 200 on Jurisdiction and the Recognition of Judgments in Civil and Commercial
Matters.
Brussels IIbis (IIa) Regulation: Council Regulation (EC) No 2201/2003 of 27 November
2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.
Insolvency Regulation: Council Regulation (EC) No 1346/2000 of 29 May 2000 on
Insolvency Proceedings.
Maintenance Regulation:Council Regulation (EC) No 4/2009 of 18 December 2008 on
Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and Cooperation
in Matters Relating to Maintenance Obligations.
Appendix
709
Rome IRegulation: Regulation (EC) No. 593/2008 of the European Parliament and of the
Council of 17 June 2008 on the Law Applicable to Contractual Obligations (RomeI).
Rome II Regulation: Regulation (EC) No. 864/2007 of the European Parliament and of the
Council of 11 July 2007 on the Law Applicable to Non-Contractual Obligations (RomeII).
Rome III Regulation: Council Regulation (EU) No 1259/
2010 of 20 December 2010
implementing enhanced cooperation in the area of the law applicable to divorce and legal
separation.
Successions Regulation: Regulation (EU) No 650/2012 of the European Parliament and
of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement
of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.
III. HAGUE CONVENTIONS

Access to Justice:Hague Convention of 25 October 1980 on International Access to Justice.
Administration of Estates: Hague Convention of 2 October 1973 concerning the
International Administration of the Estates of Deceased Persons.
Adoption: Hague Convention of15 November 1965 on Jurisdiction, Applicable Law and
Recognition of Decrees Relating to Adoptions.
Adoption:Hague Convention of 29 May 1993 on Protection of Children and Co-operation
in Respect of Intercountry Adoption.
Agency: Hague Convention of 14 March 1978 on the Law Applicable to Agency.
Child Abduction: Hague Convention of 25 October 1980 on the Civil Aspects of
International Child Abduction.
Child Support: Hague Convention of 23 November 2007 on the International Recovery of
Child Support and Other Forms of Family Maintenance.
Choice of Court:Hague Convention of 30 June 2005 on Choice of Court Agreements.
Divorce: Hague Convention of1 June 1970 on the Recognition of Divorces and Legal
Separations.
Evidence: Hague Convention of18 March 1970 on the Taking of Evidence Abroad in Civil or
Commercial Matters.
Foreign Judgments: Hague Convention of 1 February 1971 on the Recognition and
Enforcement of Foreign Judgments in Civil and Commercial Matters.
Legalization: Hague Convention of 5 October 1961 Abolishing the Requirement of
Legalisation for Foreign Public Documents.
Maintenance:Hague Convention of 2 October 1973 on the Law Applicable to Maintenance
Obligations.
Maintenance (Protocol):Hague Protocol of 23 November 2007 on the Law Applicable to
Maintenance Obligations.
Matrimonial Property: Hague Convention of 14 March 1978 on the Law Applicable to
Matrimonial Property Regimes.
Marriage: Hague Convention of 14 March 1978 on Celebration and Recognition of the
Validity of Marriages.
Parental Responsibility:Hague Convention of 19 October 1996 on Jurisdiction, Applicable
Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and
Measures for the Protection of Children.
710
Appendix
Products Liability: Hague Convention of 2 October 1973 on the Law Applicable to

Products Liability.
Sales: Hague Convention of 22 December 1986 on the Law Applicable to Contracts for the
International Sale ofGoods.
Protection of Adults: Hague Convention of 13 January 2000 on the International
Protection of Adults.
Protection of Infants: Hague Convention of 5 October 1961 concerning the Powers of
Authorities and the Law Applicable in Respect of the Protection of Infants.
Securities: Hague Convention of 5 July 2006 on the Law Applicable to Certain Rights in
Respect of Securities held with an Intermediary.
Service of Documents:Hague Convention of 15 November 1965 on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial Matters.
Successions: Hague Convention of 1 August 1989 on the Law Applicable to Succession to the
Estates of Deceased Persons.
Testamentary Form: Hague Convention of 5 October 1961 on the Conflicts of Laws
Relating to the Form of Testamentary Dispositions.
Traffic Accidents: Hague Convention of 4 May 1971 on the Law Applicable to Traffic
Accidents.
Trusts: Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on their
Recognition.
IV. INTER-A MERICAN CONVENTIONS

Adoption: Inter-American Convention on Conflict of Laws concerning the Adoption of
Minors (1984).
Arbitration:Inter-American Convention on International Commercial Arbitration (1975).
Bills of Exchange: Inter-American Convention on Conflict of Laws concerning Bills of
Exchange, Promissory Notes, and Invoices (1975).
Capacity: Inter-American Convention on Personality and Capacity of Juridical Persons in
Private International Law (1984).
Carriage of Goods: Inter-
American Convention on Contracts for the International
Carriage of Goods by Road (1989).
Carriage of Goods: Negotiable Inter-American Uniform Through Bill of Lading for the
International Carriage of Good by Road (2002).
Carriage of Goods: Non-negotiable Inter-American Uniform Through Bill of Lading for
the International Carriage of Good by the Road (2002).
Checks:Inter-American Convention on Conflict of Laws concerning Checks (1975).
Checks:Inter-American Convention on Conflicts of Laws concerning Checks (1979).
Contracts: See Mexico City Convention.
Companies: Inter-
American Convention on Conflicts of Laws concerning Commercial
Companies (1979).
Domicile: Inter-
American Convention on the Domicile of Natural Persons in Private
International Law (1979).
Evidence: Inter-American Convention on the Taking of Evidence Abroad (1975).
Evidence Protocol:Additional Protocol to the Inter-American Convention on the Taking
of Evidence Abroad (1984).
Appendix
711
Foreign Law Proof:Inter-American Convention on Proof and Information on Foreign Law

(1979).
General Rules of PIL:Inter-American Convention on General Rules of Private International
Law, Done at Montevideo, Uruguay, on May 8,1979.
Judgments and Arbitral Awards: Inter-
American Convention on Extraterritorial
Validity of Foreign Judgments and Arbitral Awards (1979).
Jurisdiction and Judgments: Inter-
American Convention on Jurisdiction in the
International Sphere for the Extraterritorial Validity of Foreign Judgments (1984).
Letters Rogatory: Inter-American Convention on Letters Rogatory (1975).
Letters Rogatory Protocol: Additional Protocol to the Inter-American Convention on
Letters Rogatory (1979).
Mexico City Convention: Inter-
American Convention on the Law Applicable to
International Contracts, Signed at Mexico, D.F., Mexico, on March 17,1994.
Powers of Attorney: Inter-American Convention on the Legal Regime of Powers of
Attorney to Be Used Abroad (1975).
Preventive Measures: Inter-American Convention on Execution of Preventive Measures
(1979).
Return of Children: Inter-American Convention on International Return of Children
(1989).
Secured Transactions: Model Inter-American Law on Secured Transactions (2002).
Support: Inter-American Convention on Support Obligations (1989).
Traffic in Minors: Inter-American Convention on International Traffic in Minors (1994).
Table ofCases
Alphabetization is in letter-by-letter order (e.g., Greenbaum precedes Green GiantCo.).

A
AAA Delivery, Inc. v.Airborne Freight Corp., 646 So. 2d 1113 (La. Ct. App.1994)390n283
Aaron Ferer & Sons v.Chase Manhattan Bank, N.A., 731 F.2d 112 (2d Cir. 1984)152n28
Abbott v.Abbott, 560 U.S. 1 (2010)572, 572n117, 573nn118119
Abbott Labs. v.Takeda Pharm. Co., 476 F.3d 421 (7th Cir. 2007)444,444n53
Abdelhamid v.Altria Group, Inc., 515 F.Supp.2d 384 (S.D.N.Y. 2007)231n288, 236n317
ABF Capital Corp. v.Berglass, 30 Cal. Rptr. 3d 588 (Cal. Ct. App.2005), rehg denied (July 26, 2005),
review denied (Oct. 19, 2005)403, 403nn354356, 404n369
ABF Capital Corp. v.Osley, 414 F.3d 1061 (9th Cir. 2005), cert. denied, 546 U.S. 1138 (2006)402n351,
404n369
Abiola v.Abubakar, 435 F.Supp.2d 830 (N.D. Ill. 2006), appeal denied, 2006 WL 2714831 (N.D. Ill.
Sept. 20, 2006)631n45
Abogados v.AT&T, Inc., 223 F.3d 932 (9th Cir. 2000)232n290
About.Com, Inc. v.Targetfirst, Inc., 2002 WL 826953 (S.D.N.Y. Apr. 30, 2002)397n326
Abraham v.General Cas. Co. of Wis., 576 N.W.2d 46 (Wis. 1998)527n20, 530, 530nn3739
Abur v.Republic of Sudan, 437 F.Supp.2d 166 (D.D.C. 2006)630n37
A.C. Beals Co. v.Rhode Island Hosp., 292 A.2d 865 (R.I. 1972)142n65
Acree v.Republic of Iran, 370 F.3d 41 (D.C. Cir. 2004)630n37
Adams v.Raintree Vacation Exch., LLC, 702 F.3d 436 (7th Cir. 2012), rehg en banc denied, 705 F.3d 673
(7th Cir.), cert. denied, 133 S.Ct. 2862 (2013)90n139
Adar v.Smith, 639 F.3d 146 (5th Cir.), cert. denied, __U.S. __, 132 S.Ct. 400 (2011)579n152
Adkins v.Sperry, 437 S.E.2d 284 (W. Va. 1993)137n54
Adoption of. See name ofparty
Advanced Bionics Corp. v.Medtronic, Inc., 59P.3d 231 (Cal. 2002)419n432, 420, 420n441
Advanced Bionics Corp. v.Medtronic, Inc., 105 Cal. Rptr. 2d 265 (Cal. Ct. App.2001)421nn442444
Aetna Cas. & Sur. Co. v.Dow Chem. Co., 883 F.Supp.1101 (E.D. Mich. 1995)503n53
Afram Carriers, Inc. v.Moeykens, 145 F.3d 298 (5th Cir. 1998)448n73, 461n161
Aggarao v.MOL Ship Mgmt. Co., 675 F.3d 355 (4th Cir. 2012)484, 484n309, 484n311, 485n317,
486, 486nn319321
713
714
Table of Cases
Aggarao v. MOL Ship Mgmt. Co., No. Civil CCB-09-3106, 2014 WL 3894079 (D. Md. Aug. 7,
2014)486nn322323
Agrofollajes, S.A.v.E.I. Du Pont De Nemours & Co., 48 So. 3d 976 (Fla. Dist. Ct. App.2010)91n146
Aguirre Cruz v.Ford Motor Co., 435 F.Supp.2d 701 (W.D. Tenn. 2006)267, 267n507,283n42
Air Crash Disaster at Sioux City, Iowa, on July 19, In re, 734 F. Supp. 1425 (N.D. Ill. 1990) 260,
260n468, 276n12, 277n14,283n46
Air Crash Disaster at Stapleton Intl Airport, Denver, Colo., on Nov. 15, In re, 720 F.Supp.1445 (D.
Colo. 1988)242n357, 253, 253n414, 253nn416418,676n24
Air Crash Disaster at Wash., D.C.on Jan. 13, In re, 559 F.Supp.333 (D.D.C. 1983)246n388, 258,
258n457, 265n500,288n78
Air Crash Disaster Near Chi., Ill. on May 25, In re, 644 F.2d 594 (7th Cir.), cert. denied, 454 U.S. 878
(1981)253n415, 257n455, 258n458, 261, 261nn470471
Aircrash Disaster Near Monroe, Mich. on Jan. 9, In re, 20 F.Supp.2d 1110 (E.D. Mich. 1998)258n458
Ajax Tool Works, Inc. v.Can-Engineering Mfg. Ltd., No. 01-C5938, 2003 WL 223187 (N.D. Ill. Jan. 29,
2003)350n51
Akon, In re Marriage of, 248P.3d 94 (Wash. Ct. App.2011)555n11, 575, 575nn125127
Alaska Airlines, Inc. v.Lockheed Aircraft Corp., 430 F.Supp.134 (D. Alaska 1977)401n350
Alaska Packers Assn v.Industrial Accident Commn, 294 U.S. 532 (1935)24, 24n38,99n34
Albemarle Corp. v.AstraZeneca UK Ltd., 628 F.3d 643 (4th Cir. 2010)451, 451nn9496, 452n97,
452n99, 455, 455n122
Albert Trostel & Sons Co. v.Emprs Ins. of Wausau, 216 Wis. 2d 382 (Wis. Ct. App.1998)505n64
Alcalde v.Carnival Cruise Lines, 798 F.Supp.2d 1314 (S.D. Fla. 2011)484n308
Aldana v. Del Monte Fresh Produce, 416 F.3d 1242 (11th Cir. 2005), cert. denied, 549 U.S. 1032
(2006)659n261
Aldrich v.Aldrich, 378 U.S. 540 (1964)21n27
Aleem v.Aleem, 947 A.2d 489 (Md. 2008)80, 80nn8587, 81nn8889, 612, 612nn130134
Alexander v.General Motors Corp., 478 S.E.2d 123 (Ga. 1996)81n90, 142n68, 294, 294n114
Alexander v.General Motors Corp., 466 S.E.2d 607 (Ga. App.1995)295n115
Alfa Mut. Ins. Co. v.Thornton, 125 So. 3d 330 (Fla. Dist. Ct. App.2013), review denied, 143 So. 3d 916
(Fla. 2014)496n17
Algemene Bank Nederland, M.V.v.Mattox, 611 F.Supp.144 (N.D. Ga. 1985)437n7
Ali; United States v., 718 F.3d 929 (D.C. Cir. 2013), rehg en banc denied (Aug. 21, 2013)632n50
Alioto v. Hoiles, 2010 WL 3777129 (D. Colo., Sept. 21, 2010), aff d, 531 Fed. Appx. 842 (10th Cir.
2013), cert. denied, __U.S. __, 134 S.Ct. 1561 (2014)358n98
Allen v.Lloyds of London, 94 F.3d 923 (4th Cir. 1996)448n73
Allgeyer v.Louisiana, 165 U.S. 578 (1897)23,23n33
Alli v.Eli Lilly & Co., 854 N.E.2d 372 (Ind. App.2006)309n205
Allied-Bruce Terminix Cos. v.Dobson, 513 U.S. 265 (1995)463n172
Allison v.ITE Imperial Corp., 928 F.2d 137 (5th Cir. 1991)301n149, 326n319
Allstate Fire & Cas. Ins. Co. v.Moore, 993 N.E.2d 429 (Ohio Ct. App.2013)496n17
Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981) 9n34, 24, 24n42, 25n44, 25nn4651, 26nn5261,
27n62, 29n78, 30n82, 509n85, 520, 520n143
Allstate Ins. Co. v. Stolarz, 613 N.E.2d 936 (N.Y. 1993) 135n50, 162, 162nn84
87, 163,
497n17,529n32
Allstate Ins. Co. v.Wal-Mart, 2000 WL 388844 (E.D. La. Apr. 13, 2000)291,291n95
Al Shimari v.CACI Premier Tech., Inc., 758 F.3d 516 (4th Cir. 2014)664, 664n311, 664nn313314,
665nn315317
Altmann v.Republic of Austria, 317 F.3d 954 (9th Cir. 2002), amended on denial of rehg, 327 F.3d 1246
(9th Cir.), cert. granted in part, 539 U.S. 987 (2003), aff d, 541 U.S. 677 (2004)586n30
Alton v.Alton, 207 F.2d 667 (3d Cir. 1953)567, 567nn8990
Aluminum Co. of Am.; United States v., 148 F.2d 416 (2d Cir. 1945)626n4, 644n149, 645, 645n153,
645nn156157
Alvarez-Machain v. United States, 266 F.3d 1045 (9th Cir. 2001) 152n28, 651n200, 651n202,
651n204, 659n262
Table of Cases
715
Alvarez-Machain v.United States, 331 F.3d 604 (9th Cir. 2003)651nn200201, 651n203
Alves v.Siegels Broadway Auto Parts, Inc., 710 F.Supp.864 (D. Mass. 1989)320n278
Amakua Dev., LLC v.Warner, 411 F.Supp.2d 941 (N.D. Ill. 2006)395n304, 397n326
American Banana Co. v.United Fruit Co., 213 U.S. 347 (1909),635, 636nn7678
American Biophysics Corp. v.Dubois Marine Specialties, 411 F.Supp.2d 61 (D.R.I. 2006)350n53
American Express Co. v.Italian Colors Rest., __U.S. __, 133 S.Ct. 2304 (2013)466, 466n195, 467,
467nn201207, 467n209
American Express Fin. Advisors, Inc. v.Yantis, 358 F.Supp.2d 818 (N.D. Iowa 2005)426n482
American Express Merchs. Litig., In re, In re, 667 F.3d 204, rehg en banc denied, 681 F.3d 139 (2d Cir.
2012)467n200
American Family Mut. Ins. Co. v.Alvis, 72 So. 3d 314 (Fla. App.2d Dist. 2011)496n17
American Family Mut. Ins. Co. v.Farmers Ins. Exch., 504 N.W.2d 307 (N.D. 1993)174n170
American Home Assurance Co. v.L & L Marine Serv., Inc., 153 F.3d 616 (8th Cir. 1998)152n28
American Ins. Assn v.Garamendi, 539 U.S. 396 (2003)7n25, 32, 32n98, 33, 33nn104113,34n117
American Ins. Co. v. Frischkorn, 173 F. Supp. 2d 514 (S.D.W. Va. 2001) 403, 403n358,
403nn360363, 404n368
American Mint LLC v. GOSoftware, Inc., No. 1:05-
CV-
650, 2006 WL 42090 (M.D. Pa. Jan. 5,
2006)350n51
American Motorists Ins. Co. v. ARTRA Group, Inc., 659 A.2d 1295 (Md. 1995) 75, 75nn5456,
77n66, 143n71,675n17
American Natl Fire Ins. Co. v.Conestoga Settlement Trust, 442 S.W.3d 589 (Tex. App.2014), petition
for review filed (Oct. 13, 2014)518n135
American Natl Fire Ins. Co. v.Farmers Ins. Exch., 927P.2d 186 (Utah 1996)138n56, 149n17,152n26
American Nonwovens, Inc. v.Non Wovens Engg, S.R.I., 648 So. 2d 565 (Ala. 1994)344n11
American Safety Equip. Corp. v.J.P. Maguire & Co., 391 F.2d 821 (2d Cir. 1968)475n252
American States Ins. Co. v.Allstate Ins. Co., 922 A.2d 1043 (Conn. 2007)496n17
America Online, Inc. v.Superior Court, 108 Cal. Rptr. 2d 699 (Cal. Ct. App.2001)424, 424n468
Americas Favorite Chicken Co. v. Cajun Enters., Inc., 130 F.3d 180 (5th Cir. 1997) 390n283,
395n304
Ames v.Cross, 575 N.Y.S.2d 991 (N.Y. App. Div. 3 Dept. 1991)240n335
Amiot v.Ames, 693 A.2d 675 (Vt. 1997)131n33, 151n24,152n26
Amoco Rocmount Co. v.Anschutz Corp., 7 F.3d 909 (10th Cir. 1993)345n19
Amoroso v.Burdette Tomlin Meml Hosp., 901 F.Supp.900 (D.N.J. 1995)206n150, 208n165
AMS Staff Leasing NA, Inc. v. Superior Court, 2004 WL 1435928 (Cal. Ct. App. June 28,
2004)461n161
Andersen v.Lopez, 957 N.E.2d 726 (Mass. App. Ct. 2011)540n111, 542, 542nn127131, 543,544
Andrews v.Pond, 38 U.S. (13 Pet.) 65 (1839)364n135
Androutsakos v.M/V PSARA, No. 02-1173-KI, 2004 WL 1305802 (D. Or. Jan. 22, 2004)448n73
Angulo-Hernandez; United States v., 565 F.3d 2, rehg & rehg en banc denied, 576 F.3d 59 (1st Cir.), cert.
denied, 558 U.S. 1063 (2009)633n55
Animal Sci. Prods., Inc. v.China Minmetals Corp., 654 F.3d 462 (3d Cir. 2011), as amended (Oct. 7,
2011), cert. denied, __U.S. __, 132 S.Ct. 1744 (2012)649n183
The Antelope, 23 U.S. (10 Wheat) 66 (1825)82n101
Antique Platter of Gold; United States v., 184 F.3d 131 (2d Cir. 1999), cert. denied, 529 U.S. 1136
(2000)586n30
AOL LLC; Doe 1 v., 552 F.3d 1077 (9th Cir. 2009)424n467, 440n40,448n73
Aon Risk Servs. v.Cusack, 102 A.D.3d 461, 958 N.Y.S.2d 114 (N.Y. App. Div. 2013)422n451
APA Assessment Fee Litig., In re, In re, 766 F.3d 39 (D.C. Cir. 2014)246n387
APL Co. Pte. Ltd. v.UK Aerosols Ltd., 582 F.3d 947 (9th Cir. 2009)89n135, 401n346
The Apollon, 22 U.S. (9 Wheat.) 362 (1824)635, 635n72, 635nn7475
Apollo Sprinkler Co. v.Fire Sprinkler Suppliers & Design, Inc., 382 N.W.2d 386 (N.D. 1986)137n55
Aponte v.Baez, No. CV000802893, 2002 WL 241456 (Conn. Super. Jan. 30, 2002)239n335
Apple v.Ford Motor Co., 2004 WL 3218425 (Pa. Commw. Ct. Nov. 18, 2004)263nn481482, 264,
264n487, 280n23, 295, 295nn117118
716
Table of Cases
Application Group, Inc. v. Hunter Group, Inc., 72 Cal. Rptr. 2d 73 (Cal. Ct. App. 1998) 418,
418nn427429, 419nn430432
Aral v.Earthlink, Inc., 36 Cal. Rptr. 3d 229 (Cal. Ct. App.2005)423n457
Arar v.Ashcroft, 585 F.3d 559 (2d Cir. 2009), cert. denied, 560 U.S. 978 (2010)631n39,632n47
Arar v.Ashcroft, 414 F.Supp.2d 250 (E.D.N.Y. 2006)631, 631n41, 631nn4344,632n46
Arce v.Garcia, 434 F.3d 1254 (11th Cir. 2006)631n45, 659n261
Arcila v.Christopher Trucking, 195 F.Supp.2d 690 (E.D. Pa. 2002)215, 215nn217219
Ardoyno v.Kyzar, 426 F.Supp.78 (E.D. La. 1976)222nn252253, 243n357, 253n413
Arias v.Figueroa, 930 A.2d 472 (N.J. Super. App. Div. 2007)240n335
Armstrong v.Armstrong, 441P.2d 699 (Alaska 1968)128n19, 151n24,195n76
Arnett v.Thompson, 433 S.W.2d 109 (Ky. 1968)197n98, 197n102
ARW Exploration Corp. v.Aguirre, 45 F.3d 1455 (10th Cir. 1995)490n345
Arzoumanian v. Munchener Ruckversicherungs-Gesellschaft Aktiengesellschaft AG, 133 S. Ct. 2795
(2013)34n114
Asante Techs., Inc. v. PMC-Sierra, Inc., 164 F. Supp. 2d 1142 (N.D. Cal. 2001) 350, 350n52,
351nn5455
Asbestos Removal Corp. v.Guaranty Nat. Ins. Co., 48 F.3d 1215 (4th Cir. 1995)503n53
Ash v.S.S. Mullen, Inc., 261P.2d 118 (Wash. 1953)217n232
Ashland Chem. Co. v.Provence, 181 Cal. Rptr. 340 (Cal Ct. App.1982)535n77
Ashland Oil, Inc. v.Miller Oil Purchasing Co., 678 F.2d 1293 (5th Cir. 1982)246n388, 262n477
Asset Acceptance LLC v. Caszatt, 2012 WL 1493884 (Ohio Ct. App., Apr. 30, 2012) 423,
423nn461462
Assicurazioni Generali, S.p.A., In re, 592 F.3d 113 (2d Cir. 2010)34n114
AT&T Mobility LLC v. AU Optronics Corp., 707 F.3d 1106 (9th Cir. 2013) 241, 241n348,
241nn350352
AT&T Mobility LLC v.Concepcion, 131 S.Ct. 1740 (2011)422, 422n456, 465, 465n188, 466n191,
467, 468, 470,472
Atherton v.Atherton, 181 U.S. 155 (1901)566n81
Atlantic Marine Constr. Co. v.U.S. Dist. Court for W.Dist. of Tex., 134 S.Ct. 568 (2013)440n37,440n39
Atlas Subsidiaries, Inc. v.O & O, Inc., 166 So. 2d 458 (Fla. Dist. Ct. App.1964)387n264
Attorney Gen. of Canada v. R.J. Reynolds Tobacco Holdings, Inc., 268 F.3d 103 (2d Cir. 2001), cert.
denied, 537 U.S. 1000 (2002)85,85n117
Augello v.20166 Tenants Corp., 648 N.Y.S.2d 101 (N.Y. App. Div. 1996)231n287
Augello v.Bobcat Co., 2013 WL 1209936 (E.D. Wash. Mar. 25, 2013)309n204
Austin v.N.H., 420 U.S. 656 (1975)31n93
Austin Bldg. Co. v.National Union Fire Ins. Co., 432 S.W.2d 697 (Tex. 1968)495n13
Auten v.Auten, 124 N.E.2d 99 (N.Y. 1954)61n73, 126, 126n16, 133134, 133nn4144, 135nn45,
154n37, 155n41, 162,162n83
Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 717
F.Supp.1374 (S.D. Ind. 1989), aff d, 917 F.2d 278 (7th Cir. 1990)77n69, 588, 588n37, 588n39,
588n41, 589nn4246, 592, 594, 596, 597, 598, 599, 599n77,600
AutoNation, Inc., In re, 228 S.W.3d 663 (Tex. 2007)421n446
AVC Nederland B.V.v.Atrium Inv. Pship, 740 F.2d 148 (2d Cir. 1984)439n32, 455n124
Avery v.First Resolution Mgmt. Corp., 568 F.3d 1018 (9th Cir.), cert. denied, __U.S. __, 130 S.Ct. 554
(2009)402n351,531n52
Aziz v.Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011)660n275
B
Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279 (N.Y. 1963) 61n74, 124, 124n6, 124nn810,
125, 125n12, 126, 126nn1314, 127, 128n20, 153, 153n32, 155, 156, 157, 163n88, 179, 179nn812,
180n15, 187, 194n75, 231nn284285, 271, 271nn519520
Table of Cases
717
Baby E.Z., In re Adoption of , 266P.3d 702 (Utah 2011), cert. denied, __U.S. __, 132 S.Ct. 1743 (Mar.
19, 2012)579n147
Bader by Bader v.Purdom, 841 F.2d 38 (2d Cir. 1988)219n243
Baehr v.Miike, 852P.2d 44 (Haw. 1993)558n24
Baffin Land Corp. v.Monticello Motor Inn, Inc., 425P.2d 623 (Wash. 1967)135n47,152n26
Bailey v.Cottrell, Inc., 721 S.E.2d 571 (Ga. App.2011), reconsideration denied (Dec. 16, 2011)81n90
Bain v.Honeywell Intl, Inc., 257 F.Supp.2d 872 (E.D. Tex. 2002)309n204
Bakalar v.Vavra, 619 F.3d 136 (2d Cir. 2010), on remand, 819 F.Supp.2d 293 (S.D.N.Y. 2011), aff d, 500
Fed. Appx. 6 (2d Cir. 2012), cert. denied, __U.S. __, 133 S.Ct. 2038 (2013)589, 589n49, 590,
591nn5157, 592, 592nn5860,596
Baker v.Booz Allen Hamilton, Inc., 2009 WL 5125672 (4th Cir. Dec. 28, 2009)91n146
Baker v.Carr, 444 U.S. 996 (1979)35n118
Baker v.State, 744 A.2d 864 (Vt. 1999)558n24
Baldor Elec. Co. v. Sungard Recovery Services., LP, 2006 WL 3735980 (W.D. Ark. Dec. 15,
2006)390n283
Baldwin v.Fish & Game Commn of Mont., 436 U.S. 371 (1978)31n88
Baldwin v.Iowa State Traveling Mens Assn, 283 U.S. 522 (1931)21n27
Balintulo v.Daimler AG, 727 F.3d 174 (2d Cir. 2013)663n303
Baloco v.Drummond Co., 767 F.3d 1229 (11th Cir. 2014)665, 665nn322323, 666nn324327
Balts v.Balts, 142 N.W.2d 66 (Minn. 1966)128n19,195n76
Banco de Seguros del Estado v.Mutual Marine Office, Inc., 344 F.3d 255 (2d Cir. 2003)489n341
Banco Nacional de Cuba v.Sabbatino, 376 U.S. 398 (1964)35, 35nn122124
Bandy v.Bevins, 2013 WL 44027 (Ky. Ct. App. Jan. 4, 2013), review denied (Sept. 18, 2013)496n17
Bangaly v. Baggiani, 20 N.E.3d 42 (Ill. App. Ct. 2014), appeal denied, 31 N.E.3d 767 (Ill.
2015)91n146,555n12
Bankers Trust Co. v.Lee Keeling & Assocs., Inc., 20 F.3d 1092 (10th Cir. 1994)158n56, 206n152,
219n239
Bankord v.DeRock, 423 F.Supp.602 (N.D. Iowa 1976)239n334
Banks v.Ribco, Inc., 933 N.E.2d 867 (Ill. App.3 Dist. 2010)244n372
Banque Libanaise Pour Le Commerce v.Khreich, 915 F.2d 1000, rehg denied (5th Cir. 1990)90n144
Banuelos Rios v.Ford Motor Co., 2006 WL 2950474 (D. Or. Oct. 16, 2006)294, 294nn110111
Barba v.Carlson, 2014 WL 1678246 (Del. Super. Apr. 8, 2014)262n475, 266n505,285n56
Barkanic v. General Admin. of Civil Aviation of Peoples Republic of China, 923 F.2d 957 (2d Cir.
1991)206n152
Barrera v. Insurance Co. of State of Penn., 2010 WL 3839418 (Ohio App., Oct. 2010), appeal not
allowed, 127 Ohio St. 3d 1548 (Ohio, 2011)496n17
Barrett v.Foster Grant Co., 450 F.2d 1146 (1st Cir. 1971)232n288, 236n317
Barron v. Ford Motor Co. of Canada Ltd., 965 F.2d 195 (7th Cir.), cert. denied, 506 U.S. 1001
(1992)72n45, 73nn4748, 234n300
Barron v.Suissa, 906 N.Y.S.2d 50 (N.Y. App. Div. 2010)555n10
Barrow v.ATCO Mfg. Co., 524 N.E.2d 1313 (Ind. Ct. App.1988)397n326
Bauer v.Club Med Sales, Inc., 1996 WL 310076 (N.D. Cal. May 22, 1996)180n19, 236n317
Bautista v.Star Cruises, 396 F.3d 1289 (11th Cir. 2005)464n180, 484n309
Bavarian Nordic A/S v.Acambis Inc., 486 F.Supp.2d 354 (D. Del. 2007)232n290
Baxter v.Fairfield Fin. Servs., Inc., 704 S.E.2d 423 (Ga. Ct. App.2010), reconsideration denied (Dec. 2,
2010), cert. denied (Apr. 26, 2011)396, 396nn320322
Baxter v.Sturm, Ruger & Co., 644 A.2d 1297 (Conn. 1994)306n186,528n29
Baybutt Constr. Corp. v.Commercial Union Ins. Co., 455 A.2d 914 (Me. 1983)137n54,151n26
Bays v.Jenks, 573 F.Supp.306 (W.D. Va. 1983)9n35
Beals v.Sicpa Securink Corp., 1994 WL 236018 (D.D.C. May 17, 1994)264n486
Beanal v.Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999)660n275
Beatty v.Isle of Capri Casino, Inc., 234 F.Supp.2d 651 (E.D. Tex. 2002)236n317
Beatty Caribbean, Inc. v.Viskase Sales Corp., 241 F.Supp.2d 123 (D.P.R. 2003)426n482
718
Table of Cases
Beaulieu v.Beaulieu, 265 A.2d 610 (Me. 1970)130n23, 151n24,195n75

Beckett v. MasterCraft Boat Co., 24 Cal. Rptr. 3d 490 (Cal. Ct. App. 2005), review denied (June 8,
2005)633n58
Bedle v.Kowars, 796 N.E.2d 300 (Ind. Ct. App.2003)360n110, 361n111
Beer v.Islamic Republic of Iran, 789 F.Supp.2d 14 (D.D.C. 2011)268n512
Beilfuss v.Huffy Corp., 685 N.W.2d 373 (Wis. Ct. App.2004)443n51
Belize Soc. Dev. Ltd. v.Government of Belize, 5 F.Supp.3d 25 (D.D.C. 2013)489n341
Bell v. Rimkus Consulting Group, Inc. of La., 983 So. 2d 927 (La. Ct. App.), writ denied, 983 So. 2d
1276 (La. 2008)416n416
Bellaizac-Hurtado; United States v., 700 F.3d 1245 (11th Cir. 2012)632n55
Belleville Toyota, Inc. v.Toyota Motor Sales, U.S.A., Inc., 770 N.E.2d 177 (Ill. 2002)402n350
Belmont; United States v., 301 U.S. 324 (1937)32n98
Bel-Ray Co. v.Chemrite Ltd., 181 F.3d 435 (3d Cir. 1999)90n144
Benchmark Elecs., Inc. v.J.M. Huber Corp., 343 F.3d 719 (5th Cir. 2003)395n304
Bendix Autolite Corp. v.Midwesco Enters., Inc., 486 U.S. 888 (1988)16n8,30n83
Benefit Concepts N.Y., Inc. v. New England Life Ins. Co., 2004 WL 1737452 (D. Conn. July 30,
2004)395n304
Bennett v.Islamic Republic of Iran, 507 F.Supp.2d 117 (D.D.C. 2007)630n37
Benoit v.Test Sys., Inc., 694 A.2d 992 (N.H. 1997)170n151, 206n154, 208n165
Bense v.Interstate Battery Sys. of Am., Inc., 683 F.2d 718 (2d Cir. 1982)439n33
Benson v.Eastern Bldg. & Loan Assn., 66 N.E. 627 (N.Y. 1903)438n12
Benson; People v., 454 N.Y.S.2d 155 (N.Y. App. Div. 1982)70n31
Benz v.Compania Naviera Hidalgo, S.A., 353 U.S. 138 (1957)637, 637n90, 638nn9294
Berle v.Berle, 546P.2d 407 (Idaho 1976)606n102
Bernal v.Charter Cnty. Mut. Ins. Co., 209P.3d 309 (Okla. 2009)142n64,346n25
Bernhard v.Harrahs Club, 546P.2d 719 (Cal.), cert. denied, 429 U.S. 859 (1976)130n22, 164n97,
165, 165n109, 166nn113117, 209, 209n174, 244, 244n367
Berry v.Morgan, 137 Fed. Appx. 952 (9th Cir. 2005), cert. denied, 546 U.S. 1185 (2006)83n105
Berry; State v., 5P.3d 658 (Wash. 2000)83n105
Bertram v. Norden, 823 N.E.2d 478 (Ohio App. 3 Dist. 2004), appeal not allowed, 824 N.E.2d 541
(Ohio 2005)231n286, 232, 232n293, 233nn295296
Berwick v.Wagner, 2014 WL 4493470 (Tex. App. Sept. 11, 2014)576n133, 577n135
Bethlehem Steel Corp. v. G.C. Zarnas & Co., 498 A.2d 605 (Md. 1985) 77n69, 79n80, 345n20,
378n209
Bettis v.Islamic Republic of Iran, 315 F.3d 325 (D.C. Cir. 2003)630n37
BFI Group Divino Corp. v.JSC Russian Aluminum, 481 F.Supp.2d 274 (S.D.N.Y. 2007)232n290
BHP Petroleum (Americas), Inc. v.Texaco Exploration & Prod., Inc., 1P.3d 1253 (Wyo. 2000)345n19
Bianchi; United States v., 594 F.Supp.2d 532 (E.D. Pa. 2007)629n30
Bibb v.Navajo Freight Lines, Inc., 359 U.S. 520 (1959)16n8
Bickel v.Korean Air Lines Co., 83 F.3d 127, superseded, 96 F.3d 151 (6th Cir. 1996)152n28
Bigelow v.Halloran, 313 N.W.2d 10 (Minn. 1981)171n154
Bin-Jiang Tao v.Citibank, N.A., 445 Fed. Appx. 951 (9th Cir. 2011), cert. denied, __U.S. __, 132 S.Ct.
1561 (2012)535n77
Biosense Webster, Inc. v.Superior Court, 37 Cal. Rptr. 3d 759, (Cal. Ct. App.), review denied (Apr. 19,
2006)421n446
Birnberg v.Milk St. Residential Assocs. LP, 2003 WL 151929 (N.D. Ill. Jan. 21, 2003)397n326
Biscoe v. Arlington Cnty., 738 F.2d 1352 (D.C. Cir. 1984) 9nn3435, 209, 209nn178179,
210nn180182
Bishop v.Florida Specialty Paint Co., 389 So. 2d 999 (Fla. 1980)131n28, 151n24,195n75
Bishop v.Twiford, 562 A.2d 1238 (Md. 1989)142n69
Biton v.Palestinian Interim Self-Government Auth., 310 F.Supp.2d 172 (D.D.C. 2004)630n37
Biton v.Palestinian Interim Self-Government Auth., 510 F.Supp.2d 144 (D.D.C. 2007)630n37
Bituminous Cas. Corp. v.St. Clair Lime Co., 69 F.3d 547 (10th Cir. 1995)503n53
Table of Cases
719
Black Box Corp. v.Markham, 127 Fed. Appx. 22 (3d Cir. 2005)394n304, 400n341
Blackburn v.Blackburn, 2015 WL 1608431 (Ala. Civ. App. Apr. 10, 2015)568n93
Blais v.Islamic Republic of Iran, 459 F.Supp.2d 40 (D.D.C. 2006)630n37
Blais v.Islamic Republic of Iran, 567 F.Supp.2d 143 (D.D.C. 2008)268n512
Blake v.McClung, 172 U.S. 239 (1898)30n83
Blakesley v.Wolford, 789 F.2d 236 (3d Cir. 1986)206n148
Blalock v. Perfect Subscription Co., 458 F. Supp. 123 (S.D. Ala. 1978), aff d, 599 F.2d 743 (5th Cir.
1979)416n416
Blamey v. Brown, 270 N.W.2d 884 (Minn. 1978), cert. denied, 444 U.S. 1070 (1980) 171n154,
244n372, 245n375
Blazevska v.Raytheon Aircraft Co., 522 F.3d 948 (9th Cir. 2008)283n43
Bledsoe v. Crowley, 849 F.2d 639 (D.C. Cir. 1988) 9n34, 206n145, 206n150, 207, 207nn157159,
210n186
BMW of N.Am., Inc. v.Gore, 517 U.S. 559 (1996)262, 262n476
BNY AIS Nominees Ltd. v.Quan, 609 F.Supp.2d 269 (D. Conn. 2009)448n73
Boardman v.United Servs. Auto. Assn, 470 So. 2d 1024 (Miss. 1985)137n54,151n26
Boardman Petroleum, Inc. v.Federated Mut. Ins. Co., 135 F.3d 750 (11th Cir. 1998)505n64
Boatland, Inc. v.Brunswick Corp., 558 F.2d 818 (6th Cir. 1977)387n267, 390, 390nn284285
Boat Town U.S.A., Inc. v. Mercury Marine Div. of Brunswick Corp., 364 So. 2d 15 (Fla. Dist. Ct.
App.1978)390n283
Boatwright v.Budak, 625 N.W.2d 483 (Minn. Ct. App.2001)172n162
Bodea v.Trans Nat Express, Inc., 731 N.Y.S.2d 113 (N.Y. App. Div. 2001)226, 226nn271273
Bodoff v.Islamic Republic of Iran, 424 F.Supp.2d 74 (D.D.C. 2006)268n512,630n37
Bodum USA, Inc. v. La Cafetire, Inc., 621 F.3d 624 (7th Cir. 2010) 90n142, 91n147,
91nn148149,92n150
Bohannan v.Allstate Ins. Co., 820P.2d 787 (Okla. 1991)141n63,346n25
Boland v.George S.May Intl. Co., 969 N.E.2d 166 (Mass. App. Ct. 2012)437n6, 445, 445nn6162
Bolton; Doe v., 410 U.S. 179 (1973)31n92
Bombardier Capital, Inc. v.Richfield Hous. Ctr., Inc., Nos. 91-CV-750, 91-CV-502, 1994 WL 118294
(N.D.N.Y. Mar. 21, 1994)219n241
Bonelli v.Giguere, 2004 WL 424089 (Conn. Super. Feb. 18, 2004)231n286, 235, 235nn306308
Bonny v.Society of Lloyds, 3 F.3d 156 (7th Cir. 1993)448n73
Bonti v. Ford Motor Co., 898 F. Supp. 391 (S.D. Miss. 1995), aff d mem., 85 F.3d 625 (5th Cir.
1996)276n11, 323n307
Boomsma v.Star Transp., Inc., 202 F.Supp.2d 869 (E.D. Wis. 2002)213, 213n206, 214n209
Boone v.Boone, 546 S.E.2d 191 (S.C. 2001)81n93,142n68
Boudreau v.Baughman, 368 S.E.2d 849 (N.C. 1988)137n55,154n36
Boumediene v.Bush, 553 U.S. 723 (2008)627, 627nn1619
Bourgeois v.Vanderbilt, 417 Fed. Appx. 605, 2011 WL 1849309 (8th Cir. 2011)245n376
Bournias v.Atlantic Mar. Co., 220 F.2d 152 (2d Cir. 1955)528n26
Bowen v.Amoco Pipeline Co., 254 F.3d 925 (10th Cir. 2001)490n346
Bowman v.Koch Transfer Co., 862 F.2d 1257 (6th Cir. 1988)206n149
Bowoto v.Chevron Corp., 2006 WL 2455752, 2006 WL 2455761 (N.D. Cal. Aug. 22, 2006)631n45
Boxer v.Gottlieb, 652 F.Supp.1056 (S.D.N.Y. 1987)206n152
Boyd, In re Estate of, 321P.3d 1001 (Okla. Civ. App.2014)618, 618nn161163
Boyd Rosene & Assocs., Inc. v.Kansas Mun. Gas Agency, 174 F.3d 1115 (10th Cir. 1999)401n346
Boyer v.Piper, Jaffray & Hopwood, Inc., 391 F.Supp.471 (D.S.D. 1975)416n416
Boyett v.Redland Ins. Co., 741 F.3d 604 (5th Cir. 2014)497n18
Boyle v.United Techs. Corp., 487 U.S. 500 (1988)40n147
BP Chems. Ltd. v.Formosa Chem. & Fibre Corp., 229 F.3d 254 (3d Cir. 2000)232n291
BP Oil Intl, Ltd. v.Empresa Estatal Petroleos, 332 F.3d 333 (5th Cir. 2003)350n51
Brack v.Omni Loan Co., 80 Cal. Rptr. 3d 275 (Cal. Ct. App.4th Dist. 2008), review denied (Oct. 16,
2008)425n473
720
Table of Cases
Bradford Elec. Light Co. v.Clapper, 286 U.S. 145 (1932)23, 23n36,99n34
Brandeis Intsel Ltd. v.Calabrian Chems. Corp., 656 F.Supp.160 (S.D.N.Y. 1987)490n344, 491n348
Brandt v.MillerCoors, LLC, 993 N.E.2d 116 (Ill. App.2013)461n161
Brant-Epigmelio; United States v., 429 Fed. Appx. 860 (11th Cir. 2011), cert. denied, __ U.S. __, 132
S.Ct. 1536 (2012)633n55
Braun, Estate of v.Cactus Petes, Inc., 702P.2d 836 (Idaho 1985)244n372
Braune v.Abbott Labs., 895 F.Supp.530 (E.D.N.Y. 1995)67n15, 275n6,276n10
Brause v.Bureau of Vital Statistics, 1998 WL 88743 (Alaska Feb. 27, 1998)558n24
Bravo; United States v., 489 F.3d 1 (1st Cir.), cert. denied, __U.S. __, 128 S.Ct. 344 (2007)633n55
Braxton v.Anco Elec., Inc., 409 S.E.2d 914 (N.C. 1991)78, 78n73,142n69
The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) 437n8, 438, 438nn1421, 439, 441, 443,
443n50, 444n53, 453n107, 454n112, 459n146, 460, 474n250, 476, 476n266
Brewer v.Dodson Aviation, 447 F.Supp.2d 1166 (W.D. Wash. 2006)283n45
Brickner v.Gooden, 525P.2d 632 (Okla. 1974)130n23, 151n24,195n77
Bridas Corp. v.Unocal Corp., 16 S.W.3d 893 (Tex. App.Houston [14 Dist.] 2000)232n290
Bridge Fund Capital Corp. v. Fastbucks Franchise Corp., 622 F.3d 996 (9th Cir. 2010) 427n492,
427n494
Bridgestone/Firestone, Inc., In re, 190 F.Supp.2d 1125 (S.D. Ind. 2002)91n146
Briggs; State v., 756 A.2d 731 (R.I. 2000)70n31
Brill v. Regent Commcns, Inc., 12 N.E.3d 299 (Ind. Ct. App.), transfer denied, 18 N.E.3d 1005 (Ind.
2014)403n359, 404, 404nn364366, 406n373
Broderick v.Rosner, 294 U.S. 629 (1935)28n70
Brooks v.General Cas. Co. of Wis., 2007 WL 4305577 (E.D. Wis. Dec. 7, 2007)231n288, 236nn317
319, 237nn320321
Brown v.Church of Holy Name of Jesus, 252 A.2d 176 (R.I. 1969)171n153
Brown v.Ford Motor Co., 67 F.Supp.2d 581 (E.D. Va. 1999)234n300
Brown v.Harper, 647 N.Y.S.2d 245 (N.Y. App. Div. 1996)219n242
Brown v. Johnson & Johnson, 64 F. Supp. 3d 717 (E.D. Pa. 2014) 254n424, 260n464, 305,
305nn176177
Brown v.MHN Govt Services., Inc., 306P.3d 948 (Wash. 2013)469, 469n217
Brown v.National Car Rental Sys., Inc., 707 So. 2d 394 (Fla. App.3 Dist. 1998)246n384
Brown v.Novartis Pharms. Corp., 2012 WL 3066588 (E.D.N.C. July 27, 2012)262n474,282n33
Brown & Brown, Inc. v.Johnson, 34 N.E.3d 357 (N.Y. 2015)416, 416nn417419
Brown & Brown, Inc. v.Mudron, 887 N.E.2d 437 (Ill. App. Ct. 2008)416n416
Brown-Forman Distillers Corp. v.N.Y. State Liquor Auth., 476 U.S. 573 (1986)30n83
Bruce v.Haworth, Inc., 2014 WL 834184 (W.D. Mich. Mar. 4, 2014)315, 315n249
Brunow v.Burnett, No. CV93-0062060, 1994 WL 149334 (Conn. Super. Apr. 6, 1994)246n384
Bryant v.Silverman, 703P.2d 1190 (Ariz. 1985)243n357, 259n459
Bryant v.Wyeth, 879 F.Supp.2d 1214 (W.D. Wash. 2012)254n424, 305, 305nn180181
B. Troisi v.Cannon Equip. Co., 2010 WL 2061989 (Cal. Ct. App. May 25, 2010)422n451
Buchanan v.Doe, 431 S.E.2d 289 (Va. 1993)345n14
Buckeye Check Cashing, Inc. v.Cardegna, 546 U.S. 440 (2006)460n157, 472n233, 473n239
Budget Rent-A-Car Sys., Inc. v.Chappell, 407 F.3d 166 (3d Cir. 2005)224, 224nn260263
Buglioli v.Enterprise Rent-A-Car, 811 F.Supp.105 (E.D.N.Y.), aff d without op., 999 F.2d 536 (2d Cir.
1993)212n198, 222n253
Building Erection Servs., Inc. v.JLG, Inc., 376 F.3d 800 (8th Cir. 2004)526n20
Burchett v.MasTec N.Am., Inc., 93P.3d 1247 (Mont. 2004)382n233
Burger King Corp. v.Rudzewicz, 471 U.S. 462 (1985)30n80,437n7
Burleson v.Liggett Group Inc., 111 F.Supp.2d 825 (E.D. Tex. 2000)310n207
Burlington N.R.R. Co. v.Allianz Underwriters Ins. Co., 1994 WL 637011, appeal refused, 653 A.2d 304
(Del. Super. Ct. 1994)436n2
Burnett v.Al Baraka Inv. & Dev. Corp., 274 F.Supp.2d 86 (D.D.C. 2003)630n37
Table of Cases
721
Burnett v.Columbus McKinnon Corp., 887 N.Y.S.2d 405 (N.Y. App. Div. 2009)325, 325n316, 326,
326nn317318
Burney v.PV Holding Corp., 553 N.W.2d 657 (Mich. App.1996)180n19, 239n335
Burnham v.Superior Court, 495 U.S. 604 (1990)29n79
Burns v.Geres, 409 N.W.2d 428 (Wis. App.1987)232n288, 236n317
Burr v.Renewal Guar. Corp., 468P.2d 576 (Ariz. 1970)137n51,151n26
Busby v.Perini Corp., 290 A.2d 210 (R.I. 1972)171n153
Bushkin Assocs., Inc. v.Raytheon Co., 473 N.E.2d 662 (Mass. 1985)137n55, 173n168
Business Guides, Inc. v.Chromatic Commcns Enters., Inc., 498 U.S. 533 (1991)40n153
Butkera v.Hudson River Sloop Clearwater, Inc., 693 A.2d 520 (N.J. Super. 1997)212n195
Butler v.Adoption Media, LLC, 486 F.Supp.2d 1022 (N.D. Cal. 2007)245n378
Buzalek v.State Farm Mut. Auto. Ins. Co., 2004 WL 2346011 (D. Del. 2004)497n17
Byers v.Auto-Owners Ins. Co., 119 S.W.3d 659 (Mo. App.2003)505n64
Byrd v.Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525 (1958)40n153
Byrn v.American Universal Ins. Co., 548 S.W.2d 186 (Mo. App.1977)206n149
C
Caballero v.Ford Motor Co., 2014 WL 2900959 (Del. Super. June 24, 2014)266n502,283n42
Cable Tel Servs., Inc. v.Overland Contracting, Inc., 574 S.E.2d 31 (N.C. Ct. App.2002)371n180
CACV of Colo., LLC v.Steven, 274P.3d 859 (Or. Ct. App.2012), review denied, 352 Or. 377 (Sept. 13,
2012)534, 534nn7273
Cagle v.James St. Group, 2010 WL 4250008 (10th Cir. Oct. 28, 2010)395n304
Cagle v.Mathers Family Trust, 295P.3d 460 (Colo. 2013)448n74
Calhoun v. Yamaha Motor Corp., U.S.A., 216 F.3d 338 (3d Cir.), cert. denied, 531 U.S. 1037
(2000)263n486, 266n506, 298n132, 301n149, 327n320
Cameron Intl Corp. v.Guillory, 445 S.W.3d 840 (Tex. App.2014)418n426
Campbell v.Fawber, 975 F.Supp.2d 485 (M.D. Pa. 2013)262n474, 281, 281nn2830
Campofiore v.Wyeth, 2004 WL 3105962 (Conn. Super. Dec. 7, 2004)309n204
Campuzano v.Islamic Republic of Iran, 281 F.Supp.2d 258 (D.D.C. 2003)630n37
Canales Martinez v.Dow Chem. Co., 219 F.Supp.2d 719 (E.D. La. 2002)91n146
Cannelton Indus., Inc. v.Aetna Cas. & Sur. Co. of Am., 460 S.E.2d 1 (W. Va. 1994)137n54,436n2
Cape Flattery Ltd. v.Titan Mar., LLC, 647 F.3d 914 (9th Cir. 2011), cert. denied, __U.S. __, 132 S.Ct.
1862 (2012)483, 483n302
Capital One Bank v.Fort, 255P.3d 508 (Or. Ct. App.2011)424, 424n470, 425n472
Carbotrade S.p.A.v.Bureau Veritas, 99 F.3d 86 (2d Cir. 1996)643n138
Cardales-Luna; United States v., 632 F.3d 731 (1st Cir.), cert. denied, __U.S. __, 132 S. Ct. 573
(2011)632n55
Crdenas v.Muangman, 998 A.2d 303 (D.C. 2010)222n253
Carder Buick-Olds Co. v.Reynolds & Reynolds, Inc., 775 N.E.2d 531 (Ohio Ct. App.2002)423n461
Carey v.Bahama Cruise Lines, 864 F.2d 201 (1st Cir. 1988)90n144
Caribbean Wholesales & Serv. Corp. v. U.S. JVC Corp., 855 F. Supp. 627 (S.D.N.Y. 1994) 427,
427n493, 427nn495497
Carnival Cruise Lines, Inc. v.Shute, 499 U.S. 585 (1991)438, 438nn2223, 439, 439nn2628,441n41
Carnival Cruise Lines, Inc. v.Superior Ct., 286 Cal. Rptr. 323 (Cal. App.1991)441n41
Carrier Corp. v.Home Ins. Co., 648 A.2d 665 (Conn. Super. 1994)436n2, 502,502n49
Carris v.Marriott Intl, Inc., 466 F.3d 558 (7th Cir. 2006)231n288, 236, 236nn315316
Carroll v.Lanza, 349 U.S. 408 (1955)24n41
Carroll v.MBNA Am. Bank, 220P.3d 1080 (Idaho 2009)426, 426nn476481
Carroll Fulmer Logistics Corp. v. Hines, 710 S.E.2d 888 (Ga. App. 2011), cert. denied (Jan. 9,
2012)81n91
Caruolo v.John Crane, Inc., 226 F.3d 46 (2d Cir. 2000)219n242
722
Table of Cases
Casarotto v.Lombardi, 886P.2d 931 (Mont. 1994), revd, 116 S.Ct. 1652 (1996)138n56,151n26
Casavant v.Norwegian Cruise Line, Ltd., 829 N.E.2d 1171 (Mass. App. Ct.), review denied, 834 N.E.2d
256 (Mass. 2005), cert. denied, 126 S.Ct. 1337 (2006)441n41
Casey v.Manson Constr. & Engg Co., 428P.2d 898 (Or. 1967)128n19, 206n149, 207, 207nn155156
Cashman Equip. Corp. v. U.S. Fire Ins. Co., 368 Fed. Appx. 288, 2010 WL 746423 (3d Cir. Mar. 5,
2010)401n348
Catapano, In re, 794 N.Y.S.2d 401 (N.Y. App. Div. 2005)555n10
Cates v.Creamer, 431 F.3d 456 (5th Cir. 2005)222n253
Cates v.Hertz Corp., No. 08-10686, 2009 WL 2447792 (5th Cir. Aug. 11, 2009)222n253
Caton v.Leach Corp., 896 F.2d 939 (5th Cir. 1990)390n283
CCR Data Sys., Inc. v.Panasonic Commcns & Sys. Co., 1995 WL 54380 (D.N.H. 1995)371n180
Cecere v.Aetna Ins. Co., 766 A.2d 696 (N.H. 2001)497n17
Celotex Corp. v.Meehan, 523 So. 2d 141 (Fla. 1988)276n10, 540n108
Century Indem. Co. v.Mine Safety Appliances Co., 942 A.2d 95 (N.J. Super. 2008)505n64
Cerami-Kote, Inc. v.Energywave Corp., 773P.2d 1143 (Idaho 1989)449n81, 455, 455nn128129
Certain Underwriters at Lloyds, London v.Foster Wheeler Corp., 822 N.Y.S.2d 30 (N.Y. App. Div. 1st
Dept. 2006), aff d, 876 N.E.2d 500 (N.Y. 2007)510n92, 511, 511nn9398
CFTC v.Nahas, 738 F.2d 487 (D.C. Cir. 1984)626n9
Chafin v.Chafin, __U.S. __, 133 S.Ct. 1017 (2013)573, 573n120
Chafin v.Chafin, 742 F.3d 934 (11th Cir. 2013)574, 574n121
Chambers v.Cooney, 2007 WL 2493682 (S.D. Ala. Aug. 29, 2007)232n290
Chambers v. Dakotah Charter, Inc., 488 N.W.2d 63 (S.D. 1992) 81n94, 131n33, 150n19,
151n24,197n93
Champagne v.Ward, 893 So. 2d 773 (La. 2005)497n17
Champagnie v.W.E. ONeil Constr. Co., 395 N.E.2d 990 (Ill. App.1979)137n51
Champlain Enters., Inc. v.United States, 945 F.Supp.468 (N.D.N.Y. 1996)307n195, 395n304
Chandler v.Multidata Sys. Intl Corp., 163 S.W.3d 537 (Mo. Ct. App.2005)91n146
Chang v.Baxter Healthcare Corp., 599 F.3d 728 (7th Cir.), rehg & rehg en banc denied (Apr. 26, 2010),
cert. denied, 562 U.S. 895 (2010)313n230, 526n20,527n22
Chang v.Chang, 2004 WL 2095116 (Conn. Super. Aug. 23, 2004)231n286
Charania, Estate of v.Shulman, 608 F.3d 67 (1st Cir. 2010)75n52, 612, 612n135, 613n137
Chavez v.Carranza, 559 F.3d 486 (6th Cir.), cert. denied, 558 U.S. 822, 130 S.Ct. 110 (2009)631n45
Cherokee Ins. Co. v.Sanches, 975 So. 2d 287 (Ala. 2007)496n17
Cherokee Pump & Equip., Inc. v.Aurora Pump, 38 F.3d 246 (5th Cir. 1994)378n209
Cherry, Bekaert & Holland v.Brown, 582 So. 2d 502 (Ala. 1991)152n27
Cherry Creek Dodge Inc. v.Carter, 733P.2d 1024 (Wyo. 1987)345n19
Chesapeake Utils. Corp. v.American Home Ass. Co., 704 F.Supp.551 (D. Del. 1989)436n2
Chiles v.Novartis Pharms. Corp., 923 F.Supp.2d 1330 (M.D. Fla. 2013)262n474,282n31
Chong v.Friedman, 2005 WL 2083049 (Cal. Ct. App.2005)426n482
Christiansen v.Christiansen, 253P.3d 153 (Wyo. 2011)558, 558nn2223,565n69
Chrysler Corp. v.Skyline Indus. Servs., Inc., 528 N.W.2d 698 (Mich. 1995)138n56, 149n18,151n26
Church v.Massey, 697 So. 2d 407 (Miss. 1997)209n177
Church of Scientology of Cali., Inc. v.Green, 354 F.Supp.800 (S.D.N.Y. 1973)245n378
Cianfrani v. Kalmar-AC Handling Sys., Inc., 1995 WL 563289 (D.N.J. Sept. 11, 1995) 301n149,
326n320
Cicippio-Puleo v.Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004)630n37
Cipolla v. Shaposka, 267 A.2d 854 (Pa. 1970) 9n34, 130n22, 163n91, 174n171, 205, 205n139,
205nn141142, 206, 206nn143144, 305n175
Circuit City Stores, Inc. v.Adams, 532 U.S. 105 (2001)464n180
Citizens Ins. Co. of Am. v.Daccach, 217 S.W.3d 430 (Tex. 2007)242n355
Citro Fla., Inc. v.Citrovale, S.A., 760 F.2d 1231 (11th Cir. 1985)437n6
Clark v.Allen, 331 U.S. 503 (1947)32n101
Clark v.Clark, 222 A.2d 205 (N.H. 1966)128n21, 170n151,195n75
Table of Cases
723
Clark v.Favalora, 722 So. 2d 82 (La. App.1998)309n205

Clark v.Rockwell, 435 S.E.2d 664 (W. Va. 1993)137n54
Clark; United States v., 435 F.3d 1100 (9th Cir. 2006)629n30
Clarke v.Clarke, 178 U.S. 186 (1900)583n15
Clarke v.Sound Advice Live, Inc., 633 N.Y.S.2d 490 (N.Y. App. Div. 1995)232n292
Clay v.Sun Office, Ltd., 377 U.S. 179 (1964)23,23n37
Clayton v.Eli Lilly & Co., 421 F.Supp.2d 77 (D.D.C. 2006)276n10
Cleveland v.Mann, 942 So. 2d 108 (Miss. 2006), rehg denied (Nov. 30, 2006)463, 463nn173174
Cleveland Lumber Co. v.Proctor & Schwartz, Inc., 397 F.Supp.1088 (N.D. Ga. 1975)402n350
Clinton v.Enterprise Rent-A-Car Co., 977 A.2d 892 (Del. 2009)535n78
CMACO Auto. Sys., Inc. v.Wanxiang Am. Corp., 589 F.3d 235 (6th Cir. 2009)526n20
Coady v. Cross Cnty. Bank, 729 N.W.2d 732 (Wis. Ct. App.), review denied, 737 N.W.2d 432 (Wis.
2007)422n457
Coats v.Hertz Corp., 695 N.E.2d 76 (Ill. App.5 Dist. 1998)222n253
Collins v. Trius, Inc., 663 A.2d 570 (Me. 1995) 151n24, 180n19, 196n92, 198, 198nn110111,
199n112, 201n118
Colonial Life & Accident Ins. Co. v. Hartford Fire Ins. Co., 358 F.3d 1306 (11th Cir. 2004) 66,
66n9,67n10
Colorado River Water Conservation Dist. v.United States, 424 U.S. 800 (1976)420n438
Colvin v.Colvin, 291 S.W.3d 508 (Tex. App.2009)90n144
Combs v.International Ins. Co., 354 F.3d 568 (6th Cir. 2004)526n20, 530, 530nn4046,531n47
Combustion, Inc., In re, 960 F.Supp.1056 (W.D. La. 1997)505n64
Commercial Union Ins. Co. v.Porter Hayden Co., 698 A.2d 1167 (Md. App.), cert. denied, 703 A.2d
147 (Md. 1997)77n66,505n64
Commonwealth v. See name of opposingparty
CompuCredit Corp. v.Greenwood, __U.S. __, 132 S.Ct. 665 (2012)466, 466nn193194,467
Computer Sales Intl, Inc. v. Lycos, Inc., 2005 WL 3307507 (D. Mass. Dec. 6, 2005), reconsideration
denied, 2006 WL 1896192 (July 11, 2006)394n304, 400n341
Compuware Corp. v.Moodys Investors Servs., Inc., 222 F.R.D. 124 (E.D. Mich. 2004)72,72n40
Condit v.Dunne, 317 F.Supp.2d 344 (S.D.N.Y. 2004)219n240
Conklin v.Horner, 157 N.W.2d 579 (Wis. 1968)170n152, 197n97, 197n105
Conklin & Garrett, Ltd v.M/V Finnrose, 826 F.2d 1441 (5th Cir. 1987)476n261
Consolidated Fin. Invs., Inc. v.Manion, 948 S.W.2d 222 (Mo. App.1997)402n350
Consolidated Grain & Barge Co. v.Structural Sys., Inc., 212P.3d 1168 (Okla. 2009)526n19
Consolidated Mut. Ins. Co. v.Radio Foods Corp., 240 A.2d 47 (N.H. 1968)135n47, 151n26,505n64
Container Corp. of Am. v.Franchise Tax Bd., 463 U.S. 159 (1983)625n1
Contour Design, Inc. v.Chance Mold Steel Co., 693 F.3d 102 (1st Cir. 2012)370n180
Convergys Corp. v.Keener, 582 S.E.2d 84 (Ga. 2003)344n13, 419n435
Cooney v.Osgood Mach., Inc., 612 N.E.2d 277 (N.Y. 1993)79n81, 158, 158nn5758, 159, 159nn59
60, 159nn6366, 160, 206n152
Cooper v.American Express Co., 593 F.2d 612 (5th Cir. 1979)246n388, 262n477
Cooper v.Meridian Yachts, Ltd., 575 F.3d 1151 (11th Cir. 2009)397n326
Cooper v.Shealy, 537 S.E.2d 854 (N.C. Ct. App.2000)184n39
Corfield v.Coryell, 6 F.Cas. 546 (E.D. Pa. 1823)31n86
Cornett v.Johnson & Johnson, 48 A.3d 1041 (N.J. 2012)535n75
Cornett v. Johnson & Johnson, 998 A.2d 543 (N.J. Super. App. Div. 2010) 314, 314n237,
314nn239241
Corporacion Venezolana de Fomento v.Vintero Sales Corp., 629 F.2d 786 (2d Cir. 1980)152n28
Cortes v.Ryder Truck Rental, Inc., 581 N.E.2d 1 (Ill. App.1 Dist. 1991)222n253
Cosme v.Whitin Mach. Works, Inc., 632 N.E.2d 832 (Mass. 1994)306n187,528n29
Coudert Bros. LLP, In re, 673 F.3d 180 (2d Cir. 2012)526n20
Coutinho Caro & Co. U.S.A., Inc. v.Marcus Trading, Inc., 2000 WL 435566 (D. Conn. 2000)489n341
Cowley v.Abbott Labs., Inc., 476 F.Supp.2d 1053 (W.D. Wis. 2007)335n372
724
Table of Cases
CPC Intl, Inc. v.Aerojet-General Corp., 825 F.Supp.795 (W.D. Mich. 1993)505n64
CPC Intl, Inc. v.Northbrook Excess & Surplus Ins. Co., 46 F.3d 1211 (1st Cir. 1995)505n64
CPC Intl, Inc. v.Northbrook Excess & Surplus Ins. Co., 839 F.Supp.124 (D.R.I. 1993)505n64
CPS Intl, Inc. v.Dresser Indus., Inc., 911 S.W.2d 18 (Tex. App.1995)395n304
Credit Acceptance Corp. v. Chao Kong, 822 N.W.2d 506 (Wis. Ct. App. 2012) 424n469, 425,
425n471
Credit Acceptance Corp. v.Front, 745 S.E.2d 556 (W. Va. 2013)470, 470nn226227
Cribb v.Augustyn, 696 A.2d 285 (R.I. 1997)148, 148nn57, 171n153, 195n78,535n81
Crider v.Zurich Ins. Co., 380 U.S. 39 (1965)28n71
Crisler v.Unum Ins. Co. of Am., 233 S.W.3d 658 (Ark. 2006)147n2
Cromeens, Holloman, Sibert, Inc. v.AB Volvo, 349 F.3d 376 (7th Cir. 2003)430, 430nn506507
Cropp v.Interstate Distrib. Co., 880P.2d 464 (Or. Ct. App.1994)531, 532, 532nn5355
Crosby v.National Foreign Trade Council, 530 U.S. 363 (2000)32n98
Crossley v.Pacific Emprs Ins. Co., 251 N.W.2d 383 (Neb. 1977)131n28,151n24
Crouch v.General Elec. Co., 699 F.Supp.585 (S.D. Miss. 1988)276n11, 277n14, 320n278
Crowell v.Clay Hyder Trucking Lines, Inc., 700 So. 2d 120 (Fla. App.2 Dist. 1997)240n335
CS-Lakeview at Gwinnett, Inc. v. Simon Prop. Group, Inc., 659 S.E.2d 359 (Ga. 2008) 388,
388nn268270
Csulik v.Nationwide Mut. Ins. Co., 723 N.E.2d 90 (Ohio 2000)496n16
Cuesta v.Ford Motor Co., 209P.3d 278 (Okla.), cert. denied, 558 U.S. 877 (2009)346n25
Cummings v.Club Mediterrane, S.A., 2003 WL 22462625 (N.D. Ill. Oct. 29, 2003)236n317
Cunard S.S. Co. v.Mellon, 262 U.S. 100 (1923)636n79, 637, 637nn8689,641
Cunningham v.PFL Life Ins. Co., 42 F.Supp.2d 872 (N.D. Iowa 1999)242n357, 253n413
Curtis 1000, Inc. v.Suess, 24 F.3d 941 (7th Cir. 1994)370n180
Curtis 1000, Inc. v.Youngblade, 878 F.Supp.1224 (N.D. Iowa 1995)371n180
Curtiss-Wright Exp. Corp.; United States v., 299 U.S. 304 (1936)627n14
Custom Prods., Inc. v.Fluor Daniel Canada, Inc., 262 F.Supp.2d 767 (W.D. Ky. 2003)289, 289n85,
290nn8892
Cuthbertson v.Uhley, 509 F.2d 225 (8th Cir. 1975)526n20
CXY Chems. U.S.A.v.Gerling Global Genl Ins. Co., 991 F.Supp.770 (E.D. La. 1998)505n64
Czech Beer Imps., Inc. v.C. Haven Imps., LLC, 2005 WL 1490097 (S.D.N.Y. June 23, 2005)232n290
D
Dabbs v. Silver Eagle Mfg. Co., 779 P.2d 1104 (Or. App.), review denied, 784 P.2d 1101 (Or.
1989)301n150, 306, 306nn191192
DAgostino v.Johnson & Johnson, Inc., 628 A.2d 305 (N.J. 1993)241, 241nn343347
Dahiya v.Talmidge Intl Ltd., 931 So. 2d 1163 (La. Ct. App.2006), rehg denied (June 30, 2006)464n180
Daimler AG v.Bauman, 134 S.Ct. 746 (2014)29n76
Dalip Singh Birs Estate, In re, 188P.2d 499 (Cal. Ct. App.1948)557n20
Dal Ponte v.American Mortg. Exp. Corp., 2006 WL 2403982 (D.N.J. Aug. 17, 2006)242n355
Dames & Moore v.Regan, 453 U.S. 654 (1981)32n98
Dammarell v.Islamic Republic of Iran, 404 F.Supp.2d 261 (D.D.C. 2005)630n37
Danielson v.National Supply Co., 670 N.W.2d 1 (Minn. App.2003)276n12, 298n134
Danziger v.Ford Motor Co., 402 F.Supp.2d 236 (D.D.C. 2005)283n42
Dargahi v.Honda Lease Trust, 370 Fed. Appx. 172 (2d Cir. 2010)203n131
David B.Lilly Co. v.Fisher, 18 F.3d 1112 (3d Cir. 1994)219n239
Davidson v. State, 25 S.W.3d 183 (Tex. Crim. App. 2000), on remand, 42 S.W.3d 165 (Tex.
App.2001)70n31
Davis v.Humble Oil & Ref. Co., 283 So. 2d 783 (La. Ct. App.1973)495n12
Davis v.Mills, 194 U.S. 451 (1904)528n26
Davis v.Shiley Inc., 75 Cal. Rptr. 2d 826 (Cal. App.1998), review denied (Oct. 14, 1998)307n192
Table of Cases
725
Davis v.Siemens Med. Solutions USA, Inc., 399 F.Supp.2d 785 (W.D. Ky. 2005)416n416
Davis v.State, 892 N.E.2d 156 (Ind. Ct. App.2008)558n21
Davis; United States v., 905 F.2d 245 (9th Cir. 1990), cert. denied, 498 U.S. 1047 (1991)627n14
Day & Zimmermann, Inc. v.Challoner, 423 U.S. 3 (1975)42, 42nn162163
D.B., Ex parte, 975 So. 2d 940 (Ala. 2007)579n147
DCS Sanitation Mgmt., Inc. v.Casillo, 435 F.3d 892 (8th Cir.), rehg & rehg en banc denied, cert. denied,
__U.S. __, 127 S.Ct. 193 (2006)416n416
Dean ex rel. Estate of Dean v.Raytheon Corp., 399 F.Supp.2d 27 (D. Mass. 2005)266n506
Decesare v.Lincoln Benefit Life Co., 852 A.2d 474 (R.I. 2004)424n466
Deemer v.Silk City Textile Mach. Co., 475 A.2d 648 (N.J. Super. 1984)322, 322n298
Dees v.Billy, 357 Fed. Appx. 813 (9th Cir. 2009)463n175
DeFontes v.Dell, Inc., 984 A.2d 1061 (R.I. 2009)423n457
De George v. American Airlines, Inc., 338 Fed. Appx. 15 (2d Cir. 2009), cert. denied, 558 U.S. 1137
(2010)557n21
DeGrasse v.Sensenich Corp., 1989 WL 23775 (E.D. Pa. 1989)304, 304nn174175
Delfuoco v.K-Mart Corp., 817 N.E.2d 339 (Mass. App. Ct. 2004)540n111
Del Monte Fresh Produce (Hawaii), Inc. v.Firemans Fund Ins. Co., 183P.3d 734 (Haw. 2007)505n64
DeLoach v.Alfred, 960P.2d 628 (Ariz. 1998)540n107, 540n115, 541nn117118, 541nn120122,
543,544
DeMyrick v.Guest Quarters Suite Hotels, 944 F.Supp.661 (N.D. Ill. 1996)236n317
De Nicols v.Curlier, [1900] A.C. 21 (H.L.)613, 613n136
Denman v. Snapper Div., 131 F.3d 546, rehg denied en banc, 137 F.3d 1353 (5th Cir. 1998) 319,
319n272, 319nn274275
Dennis; Commonwealth v., 618 A.2d 972 (Pa. Super. 1992)70n31
Dent-Air, Inc. v.Beech Mountain Air Serv., 332 N.W.2d 904 (Minn. 1983)437n7
Department of Soc. Servs. v.Peteet, 40 So. 3d 1015 (La. Ct. App.2010)570n104
Depas v.Mayo, 11 Mo. 314 (1848)609n117
DeSantis v.Lara, No. C-080482, 2009 WL 1565068 (Ohio Ct. App. June 5, 2009)571n106
DeSantis v.Wackenhut Corp., 793 S.W.2d 670 (Tex. 1990), cert. denied, 498 U.S. 1048 (1991)368n157,
376n198, 416n416, 417, 417n421
Des Brisay v.Goldfield Corp., 637 F.2d 680 (9th Cir. 1981)401n350
DeSola Grp., Inc. v. Coors Brewing Co., 199 A.D.2d 141, 605 N.Y.S.2d 83 (N.Y. App. Div.
1993)462n165
Dessert Beauty, Inc. v.Platinum Funding Corp., 2006 WL 3780902 (S.D.N.Y. Dec. 26, 2006)395n304
Deutsch v.Novartis Pharms. Corp., 723 F.Supp.2d 521 (E.D.N.Y. 2010)262n474,282n32
Devore v.Pfizer Inc., 867 N.Y.S.2d 425 (N.Y. App. Div. 2008), appeal denied (Feb. 19, 2009)313n231
DeWeerth v.Baldinger, 658 F.Supp.688 (S.D.N.Y.), revd, 836 F.2d 103 (2d Cir. 1987)586n30
Diamond Waterproofing Sys., Inc. v.55 Liberty Owners Corp., 826 N.E.2d 802 (N.Y. 2005)401n345,
402n350
Digital Envoy, Inc. v.Google, Inc., 370 F.Supp.2d 1025 (N.D. Cal. 2005)406n373
Dill v.Continental Car Club, Inc., 2013 WL 5874713 (Tenn. Ct. App. Oct. 31, 2013)416n416
Dillon v.Dillon, 886P.2d 777 (Idaho 1994)197n96, 540n109
Dion v.Rieser, 285P.3d 678 (N.M. Ct. App.2012), cert. denied (N.M. June 14, 2012)555n10
Dire; United States v., 680 F.3d 446 (4th Cir. 2012), cert. denied, _
_U.S. _
_, 133 S. Ct. 982
(2013)632n53
Disaster at Detroit Metro. Airport on Aug. 16, In re, 750 F.Supp.793 (E.D. Mich. 1989)304n169,
307n193, 327, 327n324
Discover Bank v.Superior Court, 113P.3d 1100 (Cal. 2005)465n189
Discover Group, Inc. v.Lexmark Intl, Inc., 333 F.Supp.2d 78 (E.D.N.Y. 2004)232n290
District of Columbia v.Coleman, 667 A.2d 811 (D.C. App.1995)180n19, 232n289
District of Columbia Ins. Guar. Assn v.Algernon Blair, Inc. 565 A.2d 564 (D.C. App.1989)135n50,
163n94, 173n167
726
Table of Cases
Ditondo v.National Rent-A-Fence, 2004 WL 1242742 (N.D.N.Y. June 3, 2004)206n152

Dix v.ICT Group, Inc., 160 Wash. 2d 826, 161P.3d 1016 (Wash. 2007)422n455
Docksider, Ltd. v.Sea Tech., Ltd., 875 F.2d 762 (9th Cir. 1989)437n6
Doctors Assocs., Inc. v.Casarotto, 517 U.S. 681 (1996)465n185
Dodson v. Ford Motor Co., No. C.A. PC 96-
1331, 2006 WL 2642199 (R.I. Super. Sept. 5,
2006)258n456, 262n475, 286, 286nn6566, 287nn6770
Doe v. See name of opposingparty
Dolan v.Sea Transfer Corp., 942 A.2d 29 (N.J. Super. A.D. 2008)239n335
Dominion Video Satellite, Inc. v.Echostar Satellite LLC, 430 F.3d 1269 (10th Cir. 2005)490n347
Donahue; State v., 18P.3d 608 (Wash. Ct. App.2001)71n36
Donjuan v.McDermott, 266P.3d 839 (Utah 2011)579n147
Donlan v.State, 249P.3d 1231 (Nev. 2011)83n105
Donlann v.Maggurn, 55P.3d 74 (Ariz. Ct. App.2002), review denied (Feb. 11, 2003)555n15
Dorman v.Emerson Elec. Co., 23 F.3d 1354 (8th Cir.), cert. denied, 513 U.S. 964 (1994)276n11,
302n152, 309, 309n206, 310nn207208
Dorr v.Briggs, 709 F.Supp.1005 (D. Colo. 1989)180n19
Dorris v.McClanahan, 725 S.W.2d 870 (Mo. 1987)527n20
Dorsey v.Yantambwe, 715 N.Y.S.2d 566 (N.Y. App. Div. 4th Dept. 2000)190n66
Dowis v.Mud Slingers, Inc., 621 S.E.2d 413 (Ga. 2005)82n96
Downing v.Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001)222n253
Dreher v.Budget Rent-A-Car Sys., Inc., 634 S.E.2d 324 (Va. 2006)143n72
Drenis v.Haligiannis, 452 F.Supp.2d 418 (S.D.N.Y. 2006)394n304
Dresser Indus., Inc. v.Sandvick, 732 F.2d 783 (10th Cir. 1984)416n416
Drinkall v.Used Car Rentals, Inc., 32 F.3d 329 (8th Cir. 1994)219n242
Drooger v.Carlisle Tire & Wheel Co., 2006 WL 1008719 (W.D. Mich. Apr. 18, 2006)317n262
DTEX, LLC v.BBVA Bancomer, S.A., 508 F.3d 785 (5th Cir. 2007)232n290
Ducharme v.Ducharme, 872 S.W.2d 392 (Ark. 1994)147n2
Duchesneau v.Cornell Univ., 2012 WL 3104428 (E.D. Pa. July 31, 2012)258n456, 262n475, 280n24,
292, 292nn101102
Dumitru v.Princess Cruise Lines, Ltd., 732 F.Supp.2d 328 (S.D.N.Y. 2010)484n308
Dunaway by Dunaway v.Fellous, 842 S.W.2d 166 (Mo. App. E.D. 1992)244n372
Dunbar v.Seger-Thomschitz, 638 F.Supp.2d 659 (E.D. La. 2009), aff d, 615 F.3d 574 (5th Cir. 2010),
cert. denied, 562 U.S. 1221 (2011)589, 589n48, 590, 592, 596, 597, 597n75, 598,600
Duncan v.Cessna Aircraft Co., 665 S.W.2d 414, revd, 665 S.W.2d 439 (Tex. 1984)137n54,151n26
Dunkin Donuts Inc. v.Guang Chyi Liu, 2002 WL 31375509 (E.D. Pa. Oct. 17, 2002)401n346
Dunlap v.Hartford Ins. Co. of Midwest, 907 So. 2d 122 (La. App.2005)496n16
Dunne v.Libbra, 330 F.3d 1062 (8th Cir. 2003)449n81
Durfee v.Duke, 375 U.S. 106 (1963)21n27,583n16
Duval, In re Estate of, 777 N.W.2d 380 (S.D. 2010), rehg denied (Feb. 19, 2010)555n10
Dym v.Gordon, 209 N.E.2d 792 (N.Y. 1965)155n44
E
EA Oil Serv., Inc. v.Mobil Exploration & Producing Turkmenistan, Inc., 2000 WL 552406 (Tex. App.
Houston [14 Dist.] May 4, 2000)232n290
Eaton v.Keyser, 862 N.Y.S.2d 640 (N.Y. App. Div. 2008)527n20
E.B. & A.C. Whiting Co. v.Hartford Fire Ins. Co., 838 F.Supp.863 (D. Vt. 1993)505n64
Eby v. Thompson, No. Civ.A. 03C-
10-
010THG, 2005 WL 1653988 (Del. Super. Ct. Apr. 20,
2005)246n384, 395n304
Edelmann v.Chase Manhattan Bank, N.A., 861 F.2d 1291 (1st Cir. 1988)152n28
Edge Telecom, Inc. v.Sterling Bank, 143P.3d 1155 (Colo. App.2006)461n161
Education Res. Inst. v.Lipsky, 2002 WL 1463461 (Cal. Ct. App.2002)402n350
Education Res. Inst. v.Piazza, 794 N.Y.S.2d 65 (N.Y. App. Div. 2005)402n350
Table of Cases
727
Edwards v. Erie Coach Lines Co., 952 N.E.2d 1033 (N.Y. 2011) 161, 161nn7779, 162nn8082,
196n92, 227, 227n274, 227nn276278
EEOC v.Arabian Am. Oil Co., 499 U.S. 244 (1991)634n65, 646, 646nn162165
Egan v.Kaiser Aluminum & Chem. Corp., 677 So. 2d 1027 (La. App.), writ denied, 684 So. 2d 930 (La.
1996)322, 322n299, 322n300
Eger v.E.I. Du Pont De Nemours Co., 539 A.2d 1213 (N.J. 1988)164, 164n100, 165n102, 206n150
Eggemeyer v.Eggemeyer, 554 S.W.2d 137 (Tex. 1977)606n101
Ehredt v. DeHavilland Aircraft Co. of Canada, Ltd., 705 P.2d 446 (Alaska 1985) 138n56,
151n24,151n26
Ehrenclou v. MacDonald, 12 Cal. Rptr. 3d 411 (Cal. Ct. App. 2004), review denied (July 21,
2004)578n146
Eimers v.Honda Motor Co., 785 F.Supp.1204 (W.D. Pa. 1992)289n84
Elahi v.Islamic Republic of Iran, 124 F.Supp.2d 97 (D.D.C. 2000)268n512
Elberta Crate & Box Co. v. Cox Automation Sys., LLC, 2005 WL 1972599 (M.D. Ga. Aug. 16,
2005)401n346
Elder v.Perry Cnty. Hosp., 2007 WL 2685007 (Ky. Ct. App. Sept. 14, 2007), review denied (Sept. 10,
2008)169n141, 206n146
Elia-Warnken v.Elia, 972 N.E.2d 17 (Mass. 2012)564n65
Eli Lilly & Co. v.Home Ins. Co., 764 F.2d 876 (D.C. Cir. 1985)504n53
Eli Lilly & Co. Prozac Prods. Liab. Litig., In re, 789 F.Supp.1448 (S.D. Ind. 1992)301n150, 309n205
Eli Lilly Do Brasil, Ltda. v. Federal Express Corp., 502 F.3d 78 (2d Cir. 2007) 355, 355n78, 356,
356nn7984, 356nn8687, 357n88,357n91
Ellis v. Barto, 918 P.2d 540 (Wash. App. Div. 3 1996), review denied, 930 P.2d 1229 (Wash.
1997)180n19, 231n286
Ellis v.Pauline S.Sprouse Residuary Trust, 280 S.W.3d 806 (Tenn. 2009)142n66
Elmaliach v. Bank of China Ltd., 971 N.Y.S.2d 504 (N.Y. App. Div. 1 Dept. 2013) 246n391,
247nn393394
Elmas Trading Corp.; S.E.C.v., 683 F.Supp.743 (D. Nev. 1987), aff d without op., 865 F.2d 265 (9th Cir.
1988)387n264
El Pollo Loco, S.A. De C.V.v.El Pollo Loco, Inc., 344 F.Supp.2d 986 (S.D. Tex. 2004)397n326
Elson v.Defren, 726 N.Y.S.2d 407 (N.Y. App. Div. 1st Dept. 2001)190n66, 238, 238nn326328
Eluhu v.Rosenhaus, 583 S.E.2d 707 (N.C. Ct. App.2003)184n39
Emerson Elec. Co. v.Aetna Cas. & Sur. Co., 743 N.E.2d 629 (Ill. App.2001)503n53
Emery v.Emery, 289P.2d 218 (Cal. 1955)178, 178n5,185
Empagran S.A.v.F. Hoffman-La Roche Ltd., 388 F.3d 337 (D.C. Cir. 2004)649n184
Employers Ins. of Wausau v.Duplan Corp., 899 F.Supp.1112 (S.D.N.Y. 1995)503n53
Employers Mut. Cas. Co. v.Lennox Intl, Inc., 375 F.Supp.2d 500 (S.D. Miss. 2005)503n53
Energy Claims Ltd. v.Catalyst Inv. Group Ltd., 325P.3d 70 (Utah 2014)448, 448n74, 448n77, 453,
453n104, 462nn166168
Ennenga v.Starns, 677 F.3d 766 (7th Cir. 2012)526n20
Ennis, Inc. v.Dunbrooke Apparel Corp., 427 S.W.3d 527 (Tex. App.2014)418n426
Enquip Techs. Group v. Tycon Technoglass, 986 N.E.2d 469 (Ohio Ct. App. 2012), appeal not
allowed, 137 Ohio St. 3d 1424 (Ohio 2013), reconsideration denied, 138 Ohio St. 3d 1418 (Ohio
2014)450nn8789, 450n91,451n92
Ensminger v.Cincinnati Bell Wireless, LLC, 434 F.Supp.2d 464 (E.D. Ky. 2006)219n237
Epstein v.Shoshani, 889 N.Y.S.2d 48 (N.Y. App. Div. 2009)571n106
Erickson v.Hertz Corp., 2006 WL 1004385 (D. Minn. Apr. 17, 2006)240n335
Erie Ins. Exch. v.Heffernan, 925 A.2d 636 (Md. 2007)76, 76nn5758,143n71
Erie Ins. Exch. v.Shapiro, 450 S.E.2d 144 (Va. 1994)345n14
Erie R.R. Co. v.Tompkins, 304 U.S. 64 (1938)39, 39nn145146, 40, 41, 549, 551,659
Erny v.Estate of Merola, 792 A.2d 1208 (N.J. 2002)212n195
Erwin v.Thomas, 506P.2d 494 (Or. 1973)207n156, 211, 211n189, 211nn191192, 212n194
Esser v.McIntyre, 661 N.E.2d 1138 (Ill. 1996)149n18,195n77
728
Table of Cases
Estate of. See name of estate; name ofparty

Estee Lauder Co. v.Batra, 430 F.Supp.2d 158 (S.D.N.Y. 2006)420, 420n437, 420nn439440
Estin v.Estin, 334 U.S. 541 (1948)569n94
Etheredge v.Genie Indus., Inc., 632 So. 2d 1324 (Ala. 1994)294, 294nn112113
Ethicon Endo-Surgery, Inc. v. Pemberton, 350 2010 WL 5071848, No. 10-3973-B (Mass. Super. Oct.
27, 2010)422n451
e*Trade Fin. Corp. v.Deutsche Bank AG, 420 F.Supp.2d 273 (S.D.N.Y. 2006), clarification denied, 2006
WL 2927613 (S.D.N.Y. Oct. 12, 2006)394n304
Europcar Italia, S.p.A.v.Maiellano Tours, Inc., 156 F.3d 310 (2d Cir. 1998)489n341
European Cmty v. RJR Nabisco, Inc., 424 F.3d 175 (2d Cir. 2005), cert. denied, 546 U.S. 1092
(2006)86n123
Evans v.Valley Forge Convention Ctr., 1996 WL 468688 (E.D. Pa. Aug. 15, 1996)206n148, 208n165
Everett/Charles Contact Prod., Inc. v.Centec, S.A.R.I, 692 F.Supp.83 (D.R.I. 1988)142n65
Evolution Online Sys., Inc. v.Koninklijke PTT Nederland N.V., 145 F.3d 505 (2d Cir. 1998)448n73
Evolution Online Sys., Inc. v. Koninklijke PTT Nederland N.V., 41 F. Supp. 2d 447 (S.D.N.Y.
1999)448n73
Ex parte. See name ofparty
Exxon Mobil Corp.; Doe VIII v., 654 F.3d 11 (D.C. Cir. 2011), vacated, 527 Fed. Appx. 7 (D.C. Cir.
2013)660n275
Exxon Mobil Corp. v.Drennen, 452 S.W.3d 319 (Tex. 2014), rehg denied (Feb. 27, 2015)371n183,
417, 417n420, 417nn422425, 418n426
F
Fabricius v.Horgen, 132 N.W.2d 410 (Iowa 1965)195n78
Fairfield Lease Corp. v.Pratt, 278 A.2d 154 (Conn. Cir. Ct. 1971)387n264
Fairmont Supply Co. v.Hooks Indus., Inc., 177 S.W.3d 529 (Tex. App.2005)401n346
Fall v.Eastin, 215 U.S. 1 (1909)583nn1516, 614n140
Fanning v. Dianon Sys., Inc., No. 05-
cv-
01899-
LTBCBS, 2006 WL 2385210 (D. Colo. Aug. 16,
2006)222n253
Fanselow v.Rice, 213 F.Supp.2d 1077 (D. Neb. 2002)242n357, 259, 259nn459460
Farber v.Smolack, 229 N.E.2d 36 (N.Y. 1967)240n335
Farmland Indus., Inc. v.Frazier-Parrott Commodities, Inc., 806 F.2d 848 (8th Cir. 1986)440n40,
462n165
Farraj, In re, 886 N.Y.S.2d 67 (2009)556n15
Farrell v.Davis Enters., Inc., 1996 WL 21128 (E.D. Pa. Jan. 19, 1996)212n197
Farrell v. Ford Motor Co., 501 N.W.2d 567 (Mich. App. 1993), app. denied, 519 N.W.2d 158 (Mich.
1994)299n141, 303n167, 315, 315n248, 317n260
Faulkenberg v.CB Tax Franchise Sys., LP, 637 F.3d 801 (7th Cir. 2011)427n492
Fauntleroy v.Lum, 210 U.S. 230 (1908)20, 20n25, 21n26,22
Fay v.Parker, 53 N.H. 342 (1872)269n516
FCE Transp., Inc. v. Ajayem Lumber Midwest Corp., 1988 WL 48018 (Ohio App. May 12,
1988)180n19, 231n286
FDIC v.Nordbrock, 102 F.3d 335 (8th Cir. 1996)540n106
FDIC v.Petersen, 770 F.2d 141 (10th Cir. 1985)401n350
Fee v.Great Bear Lodge of Wis. Dells, LLC, 2004 WL 898916 (D. Minn. Apr. 9, 2004)532n52
Feeney v.Dell Inc., 908 N.E.2d 753 (Mass. 2009)423n457
Feldman v.Acapulco Princess Hotel, 520 N.Y.S.2d 477 (N.Y. Sup. Ct. 1987)206n152
Felton v.Haris Design & Constr. Co., 417 F.Supp.2d 17 (D.D.C. 2006)231n288
Fendi v.Condotti Shops, Inc., 754 So. 2d 755 (Fla. Dist. Ct. App.2000)448n74
Ferens v.Deere & Co., 819 F.2d 423 (3d Cir. 1987)550n167,551
Ferens v.Deere & Co., 862 F.2d 31 (3d Cir. 1988)550n170
Ferens v.John Deere Co., 494 U.S. 516 (1990)549, 549n165, 550nn171174, 551nn175177
Table of Cases
729
Ferguson-Kubly Indus. Servs., Inc. v.Circle Envtl., Inc., 409 F.Supp.2d 1072 (E.D. Wis. 2006)426n482
Ferrell v.Allstate Ins. Co., 188P.3d 1156 (N.M. 2008)149n15
Ferren v.General Motors Corp. Delco Battery Div., 628 A.2d 265 (N.H. 1993)170n151
F. Hoffman-La Roche Ltd. v.Empagran S.A., 542 U.S. 155 (2004)648, 648n180, 649, 649nn184189,
650, 650nn190191
Fields v.Legacy Health Sys., 413 F.3d 943 (9th Cir. 2005)532n52,534n67
Filartiga v.Pena-Irala, 630 F.2d 876 (2d Cir. 1980)658, 658n260, 659n261
Financial Bancorp. Inc. v.Pingree & Dahle, Inc., 880P.2d 14 (Utah Ct. App.1994)402n350
Financial Trust Co. v.Citibank, N.A., 268 F.Supp.2d 561 (D.V.I. June 19, 2003)395n304
Fine v.Property Damage Appraisers, Inc., 393 F.Supp.1304 (E.D. La. 1975)416n416
Fineberg, In re, 202 B.R. 206 (Bankr. E.D. Pa. 1996)402n350
Fiona Shevill v.Press Alliance SA, Case C 68/93, [1995] ECR I-415525n9
First Interregional Equity Corp. v.Haughton, 842 F.Supp.105 (S.D.N.Y. 1994)490n347
First Natl Bank in Fort Collins v.Rostek, 514P.2d 314 (Colo. 1973)130n23, 151n24,195n75
First Natl Bank of Mitchell v.Daggett, 497 N.W.2d 358 (Neb. 1993)400n344
Fiser v.Dell Comput. Corp., 188P.3d 1215 (N.M. 2008)422n457
Fisher v. Professional Compounding Ctrs. of Am., Inc., 311 F. Supp. 2d 1008 (D. Nev.
2004)291,291n96
Fitts v.Minnesota Mining & Mfg. Co., 581 So. 2d 819 (Ala. 1991)295n116, 327n321
Flaherty v.Allstate Ins. Co., 822 A.2d 1159 (Me. 2003)497n17
Flatow v.Islamic Republic of Iran, 999 F.Supp.1 (D.D.C. 1998)268n512,631n37
Fleeger v.Wyeth, 771 N.W.2d 524 (Minn. 2009)532n52
Flemma v.Halliburton Energy Services., Inc., 303P.3d 814 (N.M. 2013)469, 469n219
Flomo v.Firestone Natl Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011)659n261, 660n275
Florida Evergreen Foliage v. E.I. DuPont De Nemours & Co., 135 F. Supp. 2d 1271 (S.D. Fla.
2001)394n304
Florida Lime & Avocado Growers, Inc. v.Paul, 373 U.S. 132 (1963)16n6
Florida State Bd. of Admin. v. Engineering & Envtl. Servs., Inc., 262 F. Supp. 2d 1004 (D. Minn.
2003)402n350
Florio v.Fisher Dev., Inc., 765 N.Y.S.2d 879 (N.Y. App. Div. 2003)232n292
Flowers v.Carville, 310 F.3d 118 (9th Cir. 2002)527n22
Fluke Corp. v. Hartford Accident & Indem. Co., 34 P.3d 809 (Wash. 2001) 514, 514n113,
515nn115116
Flynn v. Mazda Motors of Am., No. 4:09CV2069 HEA, 2010 WL 2775632 (E.D. Mo. July 14,
2010)327n322
Ford Motor Co. v.Aguiniga, 9 S.W.3d 252 (Tex. App.1999)298n132
Forestal Guarani S.A.v.Daros Intl, Inc., 613 F.3d 395 (3d Cir. 2010)351,351n56
Forney Indus., Inc. v.Andre, 246 F.Supp.333 (D.N.D. 1965)416n416
Forrest v.Verizon Commcns, Inc., 805 A.2d 1007 (D.C. 2002)397n326
Forsman v.Forsman, 779P.2d 218 (Utah 1989)132n28, 149n17, 151n24,195n76
Fortune Ins. Co. v.Owens, 526 S.E.2d 463 (N.C. 2000)497n17
Foster v. Leggett, 484 S.W.2d 827 (Ky. 1972) 9n34, 130n22, 168, 168nn134136, 169nn137140,
205, 205n138, 205n140, 206n146, 289n86,498n22
Foster v.Motorists Ins. Co., 2004 WL 417339 (Ohio App.2004)497n17
Fotochrome, Inc. v.Copal Co., 517 F.2d 512 (2d Cir. 1975)489n341
Fox v.Morrison Motor Freight, Inc., 267 N.E.2d 405 (Ohio 1971)195n77
Franchise Tax Bd. of Cal. v.Hyatt, 538 U.S. 488 (2003)209n176, 219n237
Francisco v. M/
T Stolt Achievement, 293 F.3d 270 (5th Cir.), cert. denied, 537 U.S. 1030
(2002)464n180, 484n309
Frank; United States v., 599 F.3d 1221 (11th Cir.), cert. denied, 562 U.S. 876, 131 S. Ct. 186
(2010)629n30
Frazer Exton Dev. LP v.Kemper Envtl., Ltd., 200 WL 1752580 (S.D.N.Y. July 29, 2004)395n304
Fred Briggs Distr. Co. v.California Cooler, Inc., 2 F.3d 1156 (9th Cir. 1993)430n509
730
Table of Cases
Fredin v.Sharp, 1997 WL 655643 (D. Minn. 1997)402n350

Freeman v.World Airways, Inc., 596 F.Supp.841 (D. Mass. 1984)261n471
Fritsche v.Vermilion Parish Hosp. Serv. Dist. #2, 893 So. 2d 935 (La. Ct. App.), writ denied, 899 So. 2d
574, writ denied, 899 So. 2d 576 (La. 2005)555n10
Frontier Oil Corp. v. RLI Ins. Co., 63 Cal. Rptr. 3d 816 (Cal. App. 2007), review denied (Nov. 14,
2007)163n93, 346, 346nn2627, 346n30, 347nn3133
Fru-Con Constr. Corp. v.Controlled Air, Inc., 574 F.3d 527 (8th Cir. 2009)440n40,448n73
Fruin-Colnon Corp. v.Missouri Hwy. Transp. Commn, 736 S.W.2d 41 (Mo. 1987)137n51,151n26
Fu v.Fu, 733 A.2d 1133 (N.J. 1999)180n19, 246n384
Fuerste v.Bemis, 156 N.W.2d 831 (Iowa 1968)128n19, 151n24,196n89
Fulton Cty. Admr v.Sullivan, 753 So. 2d 549 (Fla. 1999)540n108
Funderburke v.N.Y.S. Dept of Civ. Serv., 822 N.Y.S.2d 393 (N.Y. Sup. Ct. 2006)565n76
FutureSelect Portfolio Mgmt., Inc. v. Tremont Group Holdings, Inc., 331 P.3d 29 (Wash.
2014)246n387
G
Gadzinski v.Chrysler Corp., 2001 WL 629336 (N.D. Ill. May 29, 2001)266n506,283n42
Gagne v.Berry, 290 A.2d 624 (N.H. 1972)170n151, 197n97, 197n104
Gaither v.Myers, 404 F.2d 216 (D.C. Cir. 1968)10n36, 239n335, 240, 240nn339342
Galapagos Corp. Turistica Galatours, S.A.v.Panama Canal Commn, 190 F.Supp.2d 900 (E.D. La.
2002)643n138
Gandee v. LDL Freedom Enterprises., Inc., 293 P.3d 1197 (Wash. 2013) 469, 469n220, 470,
470n222
Ganey v. Kawasaki Motors Corp., U.S.A., 234 S.W.3d 838 (Ark. 2006), rehg denied, (June 22,
2006)535n76
Gantes v. Kason Corp., 679 A.2d 106 (N.J. 1996) 165, 165n103, 165nn105106, 302, 302n151,
302nn154158, 303, 303nn159164, 306, 312, 312n224, 535n75, 536, 536nn8391, 537nn9293
Garcia v. General Motors Corp., 990 P.2d 1069 (Ariz. App. Div. 1 1999), review denied (Jan. 4,
2000)234n301, 324, 324nn308310
Garcia v.Plaza Oldsmobile Ltd., 421 F.3d 216 (3d Cir. 2005)239n335
Garcia; United States v., 182 Fed. Appx. 873 (11th Cir. 2006), cert. denied, 549 U.S. 1110, 127 S.Ct. 929
(2007)633n55
Garvin v.Hyatt Corp., 2000 WL 798640 (Mass. App. June 9, 2000)236n317
Gasperini v.Center for Humanities, Inc., 518 U.S. 415 (1996)40n153
Gawlak v.Mt. Snow, Ltd., 2006 WL 361644 (Conn. Super. Jan. 31, 2006)231n288, 236n317
Gay v.CreditInform, 511 F.3d 369 (3d Cir. 2007)423n457
Geller v.McCown, 177P.2d 461, rehg denied, 178P.2d 380 (Nev. 1947)88n132
General Accident Ins. Co. v.Mortara, 101 A.3d 942 (Conn. 2014)499,499n32
General Ceramics Inc. v.Firemens Fund Ins. Co., 66 F.3d 647 (3d Cir. 1995)505n64
General Elec. Co. v.G. Siempelkamp GmbH & Co., 29 F.3d 1095 (6th Cir. 1994)448n73
General Elec. Credit Corp. v.Beyerlein, 55 Misc. 2d 724, 286 N.Y.S.2d 351 (N.Y. Sup. Ct. 1967), aff d,
292 N.Y.S.2d 32 (N.Y. App. Div. 1968)387n267
General Engg Corp. v.Martin Marietta Alumina, Inc., 783 F.2d 352 (3d Cir. 1986)440n40, 449n81,
455n127
General Motors Corp. v. Eighth Judicial Dist., 134 P.3d 111 (Nev. 2006) 132n36, 168n133, 324,
324nn311312, 325nn313315
General Motors Corp. v. Northrop Corp., 685 N.E.2d 127 (Ind. Ct. App. 1997), transfer denied, 698
N.E.2d 1187 (Ind. 1998), appeal after remand, 807 N.E.2d 70 (Ind. Ct. App.), transfer denied, 822
N.E.2d 976 (Ind. 2004)390, 390nn278280
George Foreman Assoc., Ltd. v.Foreman, 389 F.Supp.1308 (N.D. Cal. 1974), aff d, 517 F.2d 354 (9th
Cir. 1975)387n264
Gerli & Co. v.Cunard S.S. Co., 48 F.2d 115 (2d Cir. 1931)364n137
Table of Cases
731
Gerling Global Reinsurance Corp. of Am. v. Gallagher, 267 F.3d 1228 (11th Cir. 2001) 34,
34nn115116
Gernold, In re Estate of, 800 N.Y.S.2d 329 (2005)555n10
Gessner v.GMAC Ins., 2003 WL 23914535 (Idaho Dist. 2003)497n17
Ghassemi v. Ghassemi, 998 So. 2d 731 (La. Ct. App. 2008), writ denied, 998 So. 2d 104 (La. 2009),
appeal after remand, 103 So. 3d 401 (La. Ct. App.), rehg denied (Aug. 10, 2012), writ denied, 102
So. 3d 38 (La. 2012)555n13
Gianni v.Fort Wayne Air Serv., Inc., 342 F.2d 621 (7th Cir. 1965)222n253
Gilbert v.Seton Hall Univ., 332 F.3d 105 (2d Cir. 2003)160, 160n71, 161nn7376, 226n270
Gilbert Spruance Co. v. Pennsylvania Mfrs. Assn Ins. Co., 629 A.2d 885 (N.J. 1993) 149n18,
173n166, 505, 505nn6364, 506, 506nn6568, 507,510
Gillenson v.Happiness Is Camping, Inc., 829 N.Y.S.2d 444 (N.Y. Sup. Ct. 2006)212n198
Gilliland v.Novartis Pharms. Corp., 33 F.Supp.3d 1060 (S.D. Iowa 2014)262n475,285n56
Gilmer v.Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)474n247
Ginter ex rel. Ballard v.Belcher, Prendergast & Laporte, 536 F.3d 439 (5th Cir. 2008)440n40,448n73
Global Fin. Corp. v. Triarc Corp., 715 N.E.2d 482 (N.Y. 1999) 527n20, 528, 528n31,
529nn3335,530n36
Global Indus. Techs., Inc., In re, 333 B.R. 251 (Bankr. W.D. Pa. 2005)402n351
Global Link, LLC. v. Karamtech Co., 06-
CV-
14938, 2007 WL 1343684 (E.D. Mich. May 8,
2007)449n81
Gloucester Holding Corp. v.U.S. Tape & Sticky Prods., LLC, 832 A.2d 116 (Del. Ch. 2003)395n304
Glunt v.ABC Paving Co., 668 N.Y.S.2d 846 (N.Y. App. Div. 1998)220n243
Glyka v.New England Cord Blood Bank, Inc., No. 07-10950-DPW, 2009 WL 1816955 (D. Mass. June
25, 2009)406n373
Godfrey v.Spano, 836 N.Y.S.2d 813 (N.Y. Sup. Ct. 2007)565n76
Goede v.Aerojet Gen. Corp., 143 S.W.3d 14 (Mo. App.2004), transfer denied (Sept. 28, 2004)291n96
Golden v.Wyeth, Inc., 2013 WL 4500879 (E.D.N.Y. 2013)283,283n41
Golden Palm Hosp., Inc. v. Stearns Bank Natl Assn, 874 So. 2d 1231 (Fla. Dist. Ct. App.,
2004)448n74, 461n161
Goldstar (Pan.) S.A.v.United States, 967 F.2d 965 (4th Cir. 1992)654n228
Gomez v.ITT Educ. Servs., Inc., 71 S.W.3d 542 (Ark. 2002)171n155, 528n28,532n52
Gonzalez v.Johnson, 918 N.E.2d 481 (Mass. App. Ct. 2009)540n111
Gonzalez v.State, 45 S.W.3d 101 (Tex. Crim. App.2001)71n36
Gonzalez v.University Sys. of N.H., 2005 WL 530806 (Conn. Super. Jan. 28, 2005)266n506
Gonzalez-Vera v.Kissinger, 449 F.3d 1260 (D.C. Cir. 2006), cert. denied, 547 U.S. 1206, 127 S.Ct. 1356
(2007)631n45, 659n261
Goodale, In re, 2003 WL 22173701 (Bankr. W.D. Wash. 2003)559n29
Goodridge v.Department of Pub. Health, 798 N.E.2d 941 (Mass. 2003)558n24
Goodyear Dunlop Tires Operations, S.A.v.Brown, 131 S.Ct. 2846 (2011)29,29n76
Gorbey v.Longwill, 2007 WL 891525 (D. Del. Mar. 22, 2007)231n288, 236n317
Gordon v.Clifford Metal Sales Co., 602 A.2d 535 (R.I. 1992)142n65
Gordon v.Gordon, 387 A.2d 339 (N.H. 1978)170n151, 197n98, 197n104
Gould, Inc. v.Continental Cas. Co., 822 F.Supp.1172 (E.D. Pa. 1993)503n53
Gould Elecs. Inc. v.United States, 220 F.3d 169 (3d Cir. 2000)225, 225n268, 226n269
Govett Am. Endeavor Fund, Ltd. v.Trueger, 112 F.3d 1017 (9th Cir. 1997)395n304
Grace Label, Inc. v.Kliff, 355 F.Supp.2d 965 (S.D. Iowa 2005)350,350n49
Grange Prop. & Cas. Co. v. Tennessee Farmers Mut. Ins. Co., 445 S.W.3d 51 (Ky. Ct. App. 2014), as
modified (Sept. 26, 2014)497n18
Granite Rock Co. v.International Bd. of Teamsters, 561 U.S. 287, 130 S.Ct. 2847 (2010)473n239
Grant v.McAuliffe, 264P.2d 944 (Cal. 1953)69, 69n25, 124, 178,178n4
Grant Thornton LLP v.Suntrust Bank, 133 S.W.3d 342 (Tex. App.Dallas 2004)242n355
Gravquick A/S v.Trimble Navigation Intl, Ltd., 323 F.3d 1219 (9th Cir. 2003)430n508
Gray v.American Radiator & Standard Sanitary Corp., 176 N.E.2d 761 (Ill. 1961)9n32
732
Table of Cases
Gray v.Busch Entmt Corp., 886 F.2d 14 (2d Cir. 1989)232n289

Great Rivers Coop. of Se. Iowa, Inc. v. Farmland Indus., Inc., 934 F. Supp. 302 (S.D. Iowa
1996)540n110
Great W.Cas. Co. v.Hovaldt, 603 N.W.2d 198 (S.D. 1999)495, 495nn911,497n17
Greco v.Grand Casinos of Miss., Inc.-Gulfport, 1996 WL 617401 (E.D. La. Oct. 23, 1996)236n317
Greek Orthodox Patriarchate of Jerusalem v.Christies, Inc., 1999 WL 673347 (S.D.N.Y. 1999)586n30
Green v.U.S. Auto. Assn Auto & Prop. Ins. Co., 756 S.E.2d 897 (S.C. 2014)499, 499nn2629
Greenbaum v.Islamic Republic of Iran, 451 F.Supp.2d 90 (D.D.C. 2006)268n512,630n37
Green Giant Co. v.Tribunal Superior, 104P.R. Dec. 489 (Puerto Rico 1975)135n48,154n36
Green Leaf Nursery v.E.I. DuPont De Nemours & Co., 341 F.3d 1292 (11th Cir. 2003)395n304
Greer v.Academy Equip. Rentals, 1994 WL 443421 (N.D. Cal. 1994)535n77
Greer; United States v., 956 F.Supp.531 (D. Vt. 1997)627n14
Gregory v.Beazer E., 892 N.E.2d 563 (Ill. Ct. App.2008)311, 311nn220221
Gries Sports Enters. v.Modell, 473 N.E.2d 807 (Ohio 1984)137n54,151n26
Griffin v.Safeway Ins. Co., 2013 WL 3947104 (La. Ct. App. July 29, 2013)496n17
Griffin Trading Co., In re, 683 F.3d 819 (7th Cir. 2012), rehg & rehg en banc denied (Aug. 7,
2012)89n135
Griffith v.United Air Lines, Inc., 203 A.2d 796 (Pa. 1964)128n20,163n88
Gross v. United States, 771 F.3d 10 (D.C. Cir. 2014), cert. denied, __U.S. __, 135 S. Ct. 1746
(2015)653, 653nn217221, 654nn222224
Grover v.Isom, 53P.3d 821 (Idaho 2002)206n149
Grupo Televisa, S.A.v.Telemundo Commcns Group, Inc., 485 F.3d 1233 (11th Cir. 2007)232n290
Guaranty Trust Co. v.York, 326 U.S. 99 (1945)41n156, 72n43, 524n3, 549, 549n163
Guenther v. Novartis Pharms. Corp., No. 6:08-
cv-
456, 2013 WL 1225391 (M.D. Fla. Mar. 27,
2013)262n474,282n31
Guertin v.Harbour Assurance Co. of Bermuda, Ltd., 415 N.W.2d 831 (Wis. 1987)527n20
Guidi v. Inter-Continental Hotels Corp., 2003 WL 1907901 (S.D.N.Y. Apr. 16, 2003) 236n317,
267n506
Guinness v.Miller, 291 F.769 (D.N.Y. 1923), aff d, 299 Fed. 538 (2d Cir. 1924), aff d in part, revd in
part, 269 U.S. 71 (1925)94n8
Gund III v.Philbrooks Boatyard, 374 F.Supp.2d 909 (W.D. Wash. 2005)643n138
Gunderson v. F.A. Richard & Assocs., 44 So. 3d 779 (La. Ct. App. 2010), rehg denied (Aug. 25,
2010)402n350
Guray v.Tacras, 194P.3d 1174 (Haw. Ct. App.2008)615n146
Gutierrez v.Collins, 583 S.W.2d 312 (Tex. 1979)130n23, 151n24,195n77
Guy v.Liederbach, 459 A.2d 744 (Pa. 1983)137n55
H
Hague v.Allstate Ins. Co., 289 N.W.2d 43 (Minn. 1978), aff d, 449 U.S. 302 (1981)137n53, 171n154,
171n156
Haim v.Islamic Republic of Iran, 425 F.Supp.2d 56 (D.D.C. 2006)268n512,630n37
Haines v.Mid-Century Ins. Co., 177 N.W.2d 328 (Wis. 1970)135n49, 135n50, 171n156
Haisten v.Grass Valley Med. Reimbursement Fund, Ltd., 784 F.2d 1392 (9th Cir. 1986)495n12
Hall v. General Motors Corp., 582 N.W.2d 866 (Mich. App. 1998), appeal denied, 459 Mich. 986
(Mich. 1999)300n141, 302n152, 303n167, 315, 315n246, 315nn251252, 316, 316nn253254,
316n258, 317nn260261
Hall v.Sprint Spectrum LP, 876 N.E.2d 1036 (Ill. App. Ct.), rehg denied (Aug. 8, 2007), appeal denied,
226 Ill. 2d 614 (Ill.), cert. denied, 555 U.S. 814 (2008)423, 423n464, 424nn465466
Hall v.Summit Contractors, Inc., 158 S.W.3d 185 (Ark. 2004)532n52,533n58
Hall v.University of Nev., 141 Cal. Rptr. 439 (Cal. App.1 Dist. 1977)209n173, 209nn175176
Hambrecht & Quist Venture Partners v. American Med. Intl, Inc., 46 Cal. Rptr. 2d 33 (Cal. Ct.
App.1995)402, 402nn352353, 404n369
Table of Cases
733
Hamilton v.Accu-Tek, 47 F.Supp.2d 330 (E.D.N.Y. 1999)188n57, 188n59,189n63

Hancock v.Watson, 962 So. 2d 627 (Miss. Ct. App.), cert. denied, 962 So. 2d 38 (Miss. 2007)184n39
Hanna v.Plumer, 380 U.S. 460 (1965)40n153
Harding v.Proko Indus., Inc., 765 F.Supp.1053 (D. Kan. 1991)276n10
Hardy v.Monsanto Enviro-Chem Sys., Inc., 323 N.W.2d 270 (Mich. 1982)387n267
Hardzynski v.ITT Hartford Ins. Co., 643 N.Y.S.2d 122 (N.Y. App. Div. 1996)232n292
Harlan Feeders, Inc. v.Grand Labs., Inc., 881 F.Supp.1400 (N.D. Iowa 1995)260, 260nn465467,
314n243
Harodite Indus., Inc. v.Warren Elec. Corp., 24 A.3d 514 (R.I. 2011)535n81, 537, 537nn9497
Harper v.Silva, 399 N.W.2d 826 (Neb. 1987)131n28,151n24
Harris v. Bingham McCutchen LLP, 154 Cal. Rptr. 3d 843 (Cal. Ct. App. 2013) 468, 468n211,
468nn213214
Harris v.City of Memphis, 119 F.Supp.2d 893 (E.D. Ark. 2000)209n177
Harris v.Polskie Linie Lotnicze, 820 F.2d 1000 (9th Cir. 1987)152n28
The Harrisburg, 119 U.S. 199 (1886)528n26
Harris Corp., In re, 2013 WL 2631700 (Tex. Ct. App, June 4, 2013)461n161, 461n163
Harrison v.Procter & Gamble Co., 2007 WL 431085 (N.D. Tex. Feb. 8, 2007)232n290
Harsh v.Petroll, 840 A.2d 404 (Pa. Cmmw. Ct. 2003)295n118
Hartford Accident & Indem. Co. v.American Red Ball Transit Co., 938P.2d 1281 (Kan.), cert. denied,
522 U.S. 951 (1997)345n21, 514, 514nn110111
Hartford Accident & Indem. Co. v.Dana Corp., 690 N.E.2d 285 (Ind. Ct. App.1998)505n64
Hartford Fire Ins. Co. v.California, 509 U.S. 764 (1993)243, 243nn359360, 634n65, 646, 646n168,
647nn170171, 647nn173175, 648nn176179, 657n248
Harvell v.Goodyear Tire & Rubber Co., 164P.3d 1028 (Okla. 2006), rehg denied (July 3, 2007)141n62,
345n17,346n25
Hataway v.McKinley, 830 S.W.2d 53 (Tenn. 1992)131n33, 149n17, 151n24, 197n93,345n15
Hatfield v.Halifax PLC, 564 F.3d 1177 (9th Cir. 2009)403, 403n357, 404n369
Hauch v.Connor, 453 A.2d 1207 (Md. 1983)142n69
Hauenstein v.Lynham, 100 U.S. (10 Otto) 483 (1879)32n99
Haumschild v.Continental Cas. Co., 95 N.W.2d 814 (Wis. 1959)65, 65n3, 123, 178, 178n6,185
Hawk Enters., Inc. v.Cash Am. Intl, Inc., 282P.3d 786 (Okla. Civ. App.2012), cert. denied (June 25,
2012)395n304
Hawkins; United States v., 513 F.3d 59 (2d Cir.), cert. denied, 553 U.S. 1060 (2008)629n30
Haynsworth v.The Corp., 121 F.3d 956 (5th Cir. 1997)448n73, 461n161
Healy v.Carlson Travel Network Assocs., Inc., 227 F.Supp.2d 1080 (D. Minn. 2002)426n482
Heaney; State v., 689 N.W.2d 168 (Minn. 2004)71n37,71n38
Heath v.Zellmer, 151 N.W.2d 664 (Wis. 1967)130n22, 163n92, 170n152
Heating & Air Specialists, Inc. v.Jones, 180 F.3d 923 (8th Cir. 1999)390
Heavner v.Uniroyal, Inc., 305 A.2d 412 (N.J. 1973)535, 535nn7475
Hefner v.Republic Indemn. Co. of Am., 773 F.Supp.11 (S.D. Tex. 1991)495n13
Heindel v.Pfizer Inc., 381 F.Supp.2d 364 (D.N.J. 2004)313n234
Heinze v.Heinze, 742 N.W.2d 465 (Neb. 2007)196n89
Heiser, Estate of v.Islamic Republic of Iran, 659 F.Supp.2d 20 (D.D.C. 2009)268n512
Heisler v.Toyota Motor Credit Corp., 884 F.Supp.128 (S.D.N.Y. 1995)222n253
Hellenic Lines Ltd. v.Rhoditis, 398 U.S. 306 (1970)337n377, 485n313, 642, 642n135, 643nn136137,
644n145, 669, 669nn344345, 670n346
Hemar Ins. Corp. v.Ryerson, 108 S.W.3d 90 (Mo. App.2003)402n350
Hemphill v.Orloff, 277 U.S. 537 (1928)30n83
Henderson v.Merck & Co., 2005 WL 2600220 (E.D. Pa. Oct. 11, 2005)313, 313nn235236
Hennefeld v.Township of Montclair, 22 N.J. Tax 166 (N.J. Tax Ct. 2005)566,566n77
Hensley v.United States, 728 F.Supp.716 (S.D. Fla. 1989)298n132
Henson v.GTE Prods. Corp., 34 F.3d 1066 (4th Cir. 1994)427n492
Herbert v.District of Columbia, 808 A.2d 776 (D.C. 2002)77n69, 206n150, 208n165
734
Table of Cases
Hermanson v.Hermanson, 887P.2d 1241 (Nev. 1994)139n57, 154n36, 575, 575n124

Hernandez v.Aeronaves de Mexico, S.A., 583 F.Supp.331 (N.D. Cal. 1984)266n506
Hernandez v. Ford Motor Co., 760 N.W.2d 751 (Mich. App. 2008), appeal denied, 759 N.W.2d 396
(Mich. 2009)91n146
Hernandez v.United States, 757 F.3d 249 (2014), rehg en banc, 785 F.3d 117 (5th Cir. 2015)242n353,
654nn225228
Heslin-Kim v.CIGNA Group Ins., 377 F.Supp.2d 527 (D.S.C. 2005)519, 519n142
Hewlett-Packard, Inc. v.Berg, 867 F.Supp.1126 (D. Mass. 1994)489n341
Hicklin v.Orbeck, 437 U.S. 518 (1978)31n90
Hilao v.Estate of Marcos, 103 F.3d 767 (9th Cir. 1996)659n261
Hill v.Republic of Iraq, 328 F.3d 680 (D.C. Cir. 2001)268n512
Himes v.State Farm Fire & Cas. Co., 284 N.W.2d 829 (Minn. 1979)171n156
Hines v.Davidowitz, 312 U.S. 52 (1941)32n98
Hitachi Credit Am. Corp. v.Signet Bank, 166 F.3d 614 (4th Cir. 1999)397n326, 400n342
Hitchcock v.United States, 665 F.2d 354 (D.C. Cir. 1981)222n253
HM Holdings, Inc. v. Aetna Cas. & Sur. Co., 712 A.2d 645 (N.J. 1998) 173n166, 505n64, 506,
506n71, 507, 507nn7576, 509, 509nn8587
Hoagland v. Ford Motor Co., No. Civ.A. 06-
615-
C. 2007 WL 2789768 (W.D. Ky. Sept. 21,
2007)293n105
Hoeller v.Riverside Resort Hotel, 820P.2d 316 (Ariz. App.1991)244, 244n368, 244nn370371
Hoffman v.Citibank (South Dakota), N.A., 546 F.3d 1078 (9th Cir. 2008)422n457
Hoiles v.Alioto, 461 F.3d 1224 (10th Cir. 2006)357, 357n92, 358nn9597
Holeman v. National Bus. Inst., Inc., 94 S.W.3d 91 (Tex. App. 2002), rehg overruled (Nov. 7, 2002),
review denied (Mar. 6, 2003), rehg of petition for review denied (May 8, 2003)461n161
Hollins v.Adair, No. 2013 CA 1622, 2014 WL 2547977 (La. Ct. App. June 3, 2014)500, 500nn3335
Hollinshead; United States v., 495 F.2d 1154 (9th Cir. 1974)586n30
Holmes v.Winter, 3 N.E.3d 694 (N.Y. 2013), cert. denied, __U.S. __, 134 S.Ct. 2664 (2014)72n41
Home Ins. Co. v.Dick, 281 U.S. 397 (1930)519n138
Honduras, Republic of v.Philip Morris Cos., 341 F.3d 1253 (11th Cir. 2003), cert. denied, 540 U.S. 1109
(2004)85,85n119
Hoosier v. Interinsurance Exch. of Auto. Club, 2014 Ark. 524, 451 S.W.3d 206, 2014 WL 7004724
(2014)147n2, 498,498n25
Hoover v.Recreation Equip. Corp., 792 F.Supp.1484 (N.D. Ohio 1991)289n84
Horowitz v.Schneider Natl, Inc., 708 F.Supp.1573 (D. Wyo. 1989)229n282, 256, 256nn442444
Houseboat Store, LLC v.Chris-Craft Corp., 692 S.E.2d 61 (Ga. Ct. App.2010)448n74
Household Intl, Inc. v.Liberty Mut. Ins. Co., 749 N.E.2d 1 (Ill. App.2001)503n53
Howe v.Howe, 625 S.E.2d 716 (W. Va. 2005)496n17
Hubbard Mfg. Co. v.Greeson, 515 N.E.2d 1071 (Ind. 1987)131n29, 149n16, 154n35,197n96
Huddy v.Fruehauf Corp., 953 F.2d 955 (5th Cir. 1992)297, 297n129
Hudson v.ConAgra Poultry Co., 484 F.3d 496 (8th Cir. 2007)397n326
Hudson Trail Outfitters v. District of Columbia Dept. of Empt Servs., 801 A.2d 987 (D.C.
2002)556n15,557n21
Hugel v.Corporation of Lloyds, 999 F.2d 206 (7th Cir. 1993)448n73
Hughes v.Fetter, 341 U.S. 609 (1951)28n70
Hughes v.Hughes, 573P.2d 1194 (N.M. 1978)606n102
Hughes v.LaSalle Bank, N.A., 419 F.Supp.2d 605 (S.D.N.Y. 2006), reconsideration denied, 2006 WL
1982983 (S.D.N.Y. July 14, 2006)394n304
Hughes v.Wal-Mart Stores, Inc., 250 F.3d 618 (8th Cir. 2001)314n244
Hughes Elecs. Corp. v.Citibank Del., 15 Cal. Rptr. 3d 244 (Cal. Ct. App.2004), review denied (Sept. 22,
2004)402n351, 404n369
Hunker v.Royal Indem. Co., 204 N.W.2d 897 (Wis. 1973)170n152, 197n94, 197n105
Hunter v.Rose, 975 N.E.2d 857 (Mass. 2012)564n65
Huntington v.Attrill, 146 U.S. 657 (1892)20n22, 82nn102,83n103
Table of Cases
735
Hunt Wesson Foods, Inc. v.Supreme Oil Co., 817 F.2d 75 (9th Cir. 1987)437n6
Hurst v.Socialist Peoples Libyan Arab Jamahiriya, 474 F.Supp.2d 19 (D.D.C. 2007)630n37
Hurtado v.Superior Court, 522P.2d 666 (Cal. 1974)211, 211n190, 214, 214nn210213
Hussemann ex rel. Ritter v.Hussemann, 847 N.W.2d 219 (Iowa 2014)611, 611nn125129
Huston v.Hayden Bldg. Maint. Corp., 617 N.Y.S.2d 335 (N.Y. App. Div. 1994)232n292
Huynh v.Chase Manhattan Bank, 465 F.3d 992 (9th Cir. 2006)526n20, 527n22, 540n106
I
Ibarguen-Mosquera; United States v., 634 F.3d 1370 (11th Cir. 2011)633n56
Imaging Fin. Servs., Inc. v.Graphic Arts Servs., Inc., 172 F.R.D. 322 (N.D. Ill. 1997)402n350
Inacom Corp. v.Sears, Roebuck & Co., 254 F.3d 683 (8th Cir. 2001)395, 395nn309310, 396nn311
313, 405n373
Indussa Corp. v.S.S. Ranborg, 377 F.2d 200 (2d Cir. 1967)476nn261262
Industrial Commn of Wis. v.McCartin, 330 U.S. 622 (1947)22n29
Industrial Indem. Co. v.Chapman & Cutler, 22 F.3d 1346 (5th Cir. 1994)535n77
Infomax Office Sys. v.MBO Binder & Co., 976 F.Supp.1247 (S.D. Iowa 1997)388n267
Ingersoll v.Klein, 262 N.E.2d 593 (Ill. 1970)130n23, 151n24,196n92
In re. See name ofparty
Instructional Sys., Inc. v. Computer Curriculum Corp., 614 A.2d 124 (N.J. 1992) 426, 426n488,
427nn489492
Insurance Co. of N.Am. v.Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir. 1980)276n9
Interclaim Holdings Ltd. v.Ness, Motley, Loadholt, Richardson & Poole, 298 F.Supp.2d 746 (N.D. Ill.
2004)398, 398n334, 399nn335336
Interclaim Holdings Ltd. v. Ness, Motley, Loadholt, Richardson & Poole, 2004 WL 725287 (N.D. Ill.
Apr. 1, 2004)398n334, 400n343, 400n345
InterGen N.V.v.Grina, 344 F.3d 134 (1st Cir. 2003)480n291
Intermetals Corp. v. Hanover Intl AG fur Industrieversicherungen, 188 F. Supp. 2d 454 (D.N.J.
2001)443n52,448n73
International Longshoremen v. Ariadne Shipping Co., 397 U.S. 195 (1970) 638, 638nn100101,
639n102
International Shoe Co. v.Washington, 326 U.S. 310 (1945)29, 29nn7374,29n79
International Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Indus. Y Comercial, 745
F.Supp.172 (S.D.N.Y. 1990)490n344
International Trading & Indus. Inv. Co. v. DynCorp Aerospace Tech., 763 F. Supp. 2d 12 (D.D.C.
2011)490n344
Inter-
Tel (Delaware), Inc. v. Fulton Commcns Tel. Co., 2007 WL 1725349 (D. Ariz. June 12,
2007)232n290
Iraq, Republic of v.ABB AG, 768 F.3d 145 (2d Cir. 2014)662n295
Iraq & Afghanistan Detainees Litig., In re, 479 F.Supp.2d 85 (D.D.C. 2007), aff d, 649 F.3d 762 (D.C.
Cir., 2011), rehg en banc denied (Sept. 19, 2011)631n39
IRB-Brasil Resseguros, S.A.v.Inepar Invs., S.A., 982 N.E.2d 609 (N.Y. 2012), cert. denied, __ U.S. __,
133 S.Ct. 2396 (2013)405n372
Irby v.Novartis Pharm. Corp., 2013 WL 2660947 (N.J. Super. Ct. App. Div. June 14, 2013)535n75
Isley v.Capuchin Province, 878 F.Supp.1021 (E.D. Mich. 1995)256, 256nn445447
Issendorf v.Olson, 194 N.W.2d 750 (N.D. 1972)130n26, 154n35,197n93
Ivanhoe Fin., Inc. v.Highland Banc Corp, 2004 WL 546934 (N.D. Ill. Feb. 26, 2004)395n304
J
Jackson v.Chandler, 61P.3d 17 (Ariz. 2003)540n114
Jackson v. Pasadena Receivables, Inc., 921 A.2d 799 (Md. 2007), reconsideration denied (June 6,
2007)423n457
736
Table of Cases
Jackson v.Payday Fin., LLC, 764 F.3d 765 (7th Cir. 2014)456n130
Jackson v.Travelers Ins. Co., 26 F.Supp.2d 1153 (S.D. Iowa 1998)242n357, 254, 254nn419423
Jackson Natl Life Ins. Co. Premium Litig., In re, 107 F. Supp. 2d 841 (W.D. Mich. 2001) 518,
518n137, 519n138
Jacobsen Constr. Co. v.Teton Builders, 106P.3d 719 (Utah 2005)449n81
Jacobson v.Mailboxes Etc. U.S.A., Inc., 646 N.E.2d 741 (Mass. 1995)449n81, 455, 455n119
Jafari, In re, 569 F.3d 644 (7th Cir. 2009), cert. denied, 558 U.S. 1114 (2010)359, 359nn100101,
360, 360n104
Jagers v.Royal Indem. Co., 276 So. 2d 309 (La. 1973)130n24,195n76
Jaiguay v.Vasquez, 948 A.2d 955 (Conn. 2008)197n94
James v.Interactive Holdings, Inc., 2011 WL 134068 (D. Conn. 2011)440n40
Jamison v.Orris, 2009 WL 586746 (N.J. Super. Ct. App. Div. Mar. 10, 2009)571n106
Janvey v.Brown, 767 F.3d 430 (5th Cir. 2014)242n355
Japan Line Ltd. v.County of L.A., 441 U.S. 434 (1979)625n1
Jeanneret v.Vichey, 693 F.2d 259 (2d Cir. 1982)586n30
Jefferson Parish Hosp. Dist. #2 v.W.R. Grace, 1992 WL 167263 (E.D. La. June 30, 1992)309n205
Jenco v.Islamic Republic of Iran, 154 F.Supp.2d 27 (D.D.C. 2001)268n512
Jenkins v.Panama Canal Ry. Co., 208P.3d 238 (Colo. 2009)527n20,532n52
Jepson v.General Cas. Co. of Wisc., 513 N.W.2d 467 (Minn. 1994)171n156
Jett v.Coletta, 2003 WL 22171862 (D.N.J. Sept. 22, 2003)215, 215nn214215
Jiffy Lube Intl, Inc. v.Jiffy Lube of Pa., 848 F.Supp.569 (E.D. Pa. 1994)395, 395nn305307
J. McIntyre Mach., Ltd. v.Nicastro, 131 S.Ct. 2780 (2011)29n76
John Boutari & Son, Wines & Spirits, S.A. v. Attiki Imp. & Distrib., Inc., 22 F.3d 51 (2d Cir.
1994)437n6
Johns v.Johns, 2013 WL 6050939 (Tenn. Ct. App. Nov. 15, 2013)570n104
Johnson v.Deltadynamics, Inc., 813 F.2d 944 (7th Cir. 1987)526n20
Johnson v.Ford Motor Co., 2003 WL 22317425 (N.D. Ill. Oct. 9, 2003)231n286, 234, 234nn302305,
297n131
Johnson v.Johnson, 216 A.2d 781 (N.H. 1966)196n90
Johnson v.Muelberger, 340 U.S. 581 (1951)22n30
Johnson v.Pischke, 700P.2d 19 (Idaho 1985)131n28, 151n24,197n94
Johnson v.Ranch Steamboat Condo. Assn, 1999 WL 184068 (N.D. Ill. 1999)292n99
Johnson v.Spider Staging Corp., 555P.2d 997 (Wash. 1976)130n23,151n24
Johnson v.Travelers Ins. Co., 486 N.W.2d 37 (Wis. App.1992)232n288, 236n317
Johnson v.U.S. Fid. & Guar. Co., 696 N.W.2d 431 (Neb. 2005)496n17
Johnson v.Yates, No. 94-6041, 1994 WL 596874 (10th Cir. Nov. 2, 1994)239n334
Johnson & Johnson v.Guidant Corp., 2007 WL 2456625 (S.D.N.Y. Aug. 29, 2007)232n290
Joint E.& S.Dist. Asbestos Litig., In re, 721 F.Supp.433 (E.D.N.Y. 1988)276n9
Jones v.Clinch, 73 A.3d 80 (D.C. 2013)206n150
Jones v.GNC Franchising, Inc., 211 F.3d 495 (9th Cir. 2000)440n40
Jones v.SEPTA, 1993 WL 141646 (E.D. Pa. 1993)283n44
Jones v.Skelley, 673 S.E.2d 385 (N.C. Ct. App.2009)184n39
Jones v.Swanson, 341 F.3d 723 (8th Cir. 2003)184n39
Jones v.Weibrecht, 901 F.2d 17 (2d Cir. 1990)440n40
Jones ex rel. Jones v.Winnebago Indus., Inc., 460 F.Supp.2d 953 (N.D. Iowa 2006)307, 307n197
Jones Truck Lines v.Transport Ins. Co., 1989 WL 49517 (E.D. Pa. 1989)505n64
Joseph L.Wilmotte & Co. v.Rosenman Bros., 258 N.W.2d 317 (Iowa 1977)137n51,151n26
J.R.v.E.M., 44 Misc. 3d 1211(A), 997 N.Y.S.2d 669 (N.Y. Sup. Ct. 2014)610n122
JRT, Inc. v.TCBY Sys., Inc., 52 F.3d 734 (8th Cir. 1995)429n503
Juda; United States v., 46 F.3d 961 (9th Cir. 1995), cert. denied sub nom. Paris v.United States, 514 U.S.
1090, cert. denied, 515 U.S. 1169 (1995)627n14
Judge v.Pilot Oil Corp., 205 F.3d 335 (7th Cir. 2000)231n288
Jumara v.State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995)440n40,448n73
Table of Cases
737
K
Kadic v.Karadzic, 70 F.3d 232 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996)659n261
Kahn v.Great-West Life Assurance Co., 307 N.Y.S.2d 238 (N.Y. Sup. Ct. 1970)495n12
Kaiser-Georgetown Cmty. Health Plan, Inc. v. Stutsman, 491 A.2d 502 (D.C. App. 1985) 9n34,
130n22, 164n96, 165, 165nn107108, 212n197
Kalajian v.Government Emps. Ins. Co., 2004 WL 1664832 (Conn. Super. Ct. 2004)497n17
Kamelgard v.Macura, 585 F.3d 334 (7th Cir. 2009), rehg denied (Nov. 12, 2009)222n253
Kandu, In re, 315 B.R. 123 (Bankr. W.D. Wash. 2004)559n29
K & V Sci. Co. v.Bayerische Motoren Werke AG, 314 F.3d 494 (10th Cir. 2002)448n73
Kaneff v.Delaware Title Loans, Inc., 587 F.3d 616 (3d Cir. 2009)471, 471n228
Karaha Bodas Co., LLC v.Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274 (5th
Cir.), cert. denied, 543 U.S. 917 (2004)489n340
Karen Mar. Ltd. v.Omar Intl, Inc., 322 F.Supp.2d 224 (E.D.N.Y. 2004)489n341
Karl Koch Erecting Co. v.NewYork Convention Ctr. Dev. Corp., 838 F.2d 656 (2d Cir. 1988)440n40
Kassel v.Consolidated Freightways Corp., 450 U.S. 662 (1981)16n8
Kaur v. Bharmota, 914 N.E.2d 1087 (Ohio Ct. App.), appeal not allowed, 915 N.E.2d 1254 (Ohio
2009)555n11
Kearney v.Salomon Smith Barney, Inc., 137P.3d 914 (Cal. 2006)164n97, 166, 166n110, 166n119,
167nn120126, 245, 245nn377383
Keaty v.Freeport Indonesia, Inc., 503 F.2d 955 (5th Cir. 1974)437n6
Keener v.Convergys Corp., 312 F.3d 1236 (11th Cir. 2002)419n435
Keener v.Convergys Corp., 342 F.3d 1264 (11th Cir. 2003)419, 419n435
Keener v.Convergys Corp., 205 F.Supp.2d 1374 (S.D. Ga. 2002)419, 419nn433436
Keeton v. Hustler Magazine, Inc., 549 A.2d 1187 (N.H. 1988) 525, 525n8, 525nn1016, 527,
541n119
Keller; State v., 19P.3d 1030 (Wash. 2001)83n105
Kelley v.Eli Lilly & Co., 517 F.Supp.2d 99 (D.D.C. 2007)313n233
Kelly v.Ford Motor Co., 933 F.Supp.465 (E.D. Pa. 1996)261n472, 262n474, 263, 263nn483486,
264, 264n489, 280, 280nn1722, 280n25, 281, 286, 286n61, 287, 303, 303n165
Kelly v.Ford Motor Co., 1996 WL 639832 (E.D. Pa. Oct. 29, 1996)281,281n26
Kelly v.Teeters, 2014 WL 6698787 (Cal. Ct. App. Nov. 26, 2014)347,347n34
Kemp v.Pfizer, Inc., 947 F.Supp.1139 (E.D. Mich. 1996)253n413, 317n262
Kender v. Auto Owners Ins. Co., 793 N.W.2d 88 (Wis. App.), review denied, 329 Wis. 2d 374 (Wis.
2010)496n17
Kennedy v.Dixon, 439 S.W.2d 173 (Mo. 1969)128n19, 151n24,195n75
Kenney v. Independent Order of Foresters, 744 F.3d 901 (4th Cir. 2014) 246n386, 520,
520nn148149
Kent v.Nationwide Prop. & Cas. Ins. Co., 844 A.2d 1092 (Del. Super. 2004)497n17
Kentucky Natl Ins. Co. v.Empire Fire &d Marine Ins. Co., 919 N.E.2d 565 (Ind. App.2010)496n17
K.E. Pittman v.Kaiser Aluminum & Chem. Corp., 559 So. 2d 879 (La. App.1990)309n205
Kerr v.Islamic Republic of Iran, 245 F.Supp.2d 59 (D.D.C. 2003)630n37
Khaja v.Khan, 902 N.E.2d 857 (Ind. Ct. App.2009), rehg denied (May 7, 2009)571n106
Kilberg v.Northeast Airlines, Inc., 172 N.E.2d 526 (N.Y. 1961)69, 69n24, 160,160n67
Kilburn v.Republic of Iran, 277 F.Supp.2d 24 (D.D.C. 2003)630n37
Kilgore v. KeyBank, Nat. Assn, 673 F.3d 947, vacated, reversed, & remanded, 697 F.3d 1191 (2012),
remanded, 718 F.3d 1052 (9th Cir. 2013)465n186
Kim v.Paccar Fin. Corp., 896 A.2d 489 (N.J. Super. A.D. 2006)240n335
Kiobel v.Royal Dutch Petroleum Co., __U.S. __, 133 S.Ct. 1659 (2013)654, 654n230, 660n274
Kiobel v.Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010)660nn275277, 661nn278289,
662, 662nn290292, 662n294, 663, 663n303, 664, 665, 666, 666n326
Kipin Indus. v.Van Deilen Intl, Inc., 182 F.3d 490 (6th Cir. 1999)387n267, 390, 390nn285286
Kirby v.Lee, 1999 WL 562750 (E.D. Pa. July 22, 1999)232n289
738
Table of Cases
Kirchman v. Novartis Pharms. Corp., No. 8:06-cv-1787-T-24-TBM, 2014 WL 2722483 (M.D. Fla.
June 16, 2014)262n474,282n31
Kirschbaum v.WRGSB Assocs., 243 F.3d 145 (3d Cir. 2001)231n288
Klaxon Co. v.Stentor Elec. Mfg. Co., 313 U.S. 487 (1941)8n31, 41, 41nn158159, 42, 549,551
Klein v.DePuy, Inc., 506 F.3d 553 (7th Cir. 2007)309n203
Kline v.McCorkle, 330 F.Supp.1089 (E.D. Va. 1971)240n335
Klosterman v.Choice Hotels Intl, Inc., 2005 WL 1177947 (D. Idaho May 18, 2005)426n482
Klussman v.Cross Country Bank, 36 Cal. Rptr. 3d 728 (Cal. Ct. App.2005)423n457
K.M.H., In re, 169P.3d 1025 (Kan. 2007)577, 577n137, 577nn139142
Knipe v.SmithKline Beecham, 583 F.Supp.2d 602 (E.D. Pa. 2008)313n232
Knox v.Palestine Liberation Org., 306 F.Supp.2d 424 (S.D.N.Y. 2004)630n37
Koenig v.CBIZ Benefits & Ins. Servs., Inc., 2006 WL 680887 (D. Neb. Mar. 10, 2006)416n416
Kopp v.Rechtzigel, 141 N.W.2d 526 (Minn. 1966)128n19
Korea Water Res. Corp. v.Chong Sung Lee, 2009 WL 4646018 (Cal. Ct. App. Dec. 8, 2009)91n146
Kos v.State, 15 S.W.3d 633 (Tex. App.2000)72n39
Kossick v.United Fruit Co., 365 U.S. 731 (1961)356, 356nn8485
Kowalewski, In re Marriage of, 182P.3d 959 (Wash. 2008)615, 615nn144146
Kramer v. Acton Toyota, Inc., 18 Mass. L. Rptr. 457, 2004 WL 2697284 (Mass. Super. Nov. 2,
2004)293, 293nn103105
Kramer v.Showa Denko K.K., 929 F.Supp.733 (S.D.N.Y. 1996)263, 263n480, 285,285n57
Kranzler v.Austin, 732 N.Y.S.2d 328 (N.Y. Sup. Ct. 2001)206n152
Krause v.Novartis Pharms. Corp., 926 F.Supp.2d 1306 (N.D. Fla. 2013)262n474,281n31
Krenkel v.Kerzner Intl Hotels Ltd., 579 F.3d 1279 (11th Cir. 2009)397n326
Krock v.Lipsay, 97 F.3d 640 (2d Cir. 1996)395n304
Kronovet v.Lipchin, 415 A.2d 1096 (Md. 1980)152n27,345n20
Krstic v.Princess Cruise Lines, Ltd. (Corp), 706 F.Supp.2d 1271 (S.D. Fla. 2010)484n308
Kubasko v.Pfizer, Inc., 2000 WL 1211219 (Del. Super. June 30, 2000)77n69
Kubis & Perszyk Assocs., Inc. v.Sun Microsystems, Inc., 680 A.2d 618 (N.J. 1996)459, 459n147,
460nn148153
Kuehn v. Childrens Hosp., L.A., 119 F.3d 1296 (7th Cir. 1997) 180n19, 219n238, 220,
220nn244246,221
Kukoly v.World Factory, Inc., 2007 WL 1816476 (E.D. Pa. June 22, 2007)250n409, 264, 264nn488
492, 280n24, 286, 286n59, 286nn6264
Kulukundis Shipping Co. v.Amtorg Trading Corp., 126 F.2d 978 (2d Cir. 1942)480n291
Kunstsammlungen zu Weimar v.Elicofon, 536 F.Supp.829 (E.D.N.Y. 1981), aff d, 678 F.2d 1150 (2d
Cir. 1982)586n30
L
Laboratory Corp. of Am. v.Hood, 911 A.2d 841 (Md. 2006)219n238
LaBounty v.American Ins. Co., 451 A.2d 161 (N.H. 1982)170n151
Labree v.Major, 306 A.2d 808 (R.I. 1973)212n196
Lacey v.Cessna Aircraft Co., 932 F.2d 170 (3d Cir. 1991)305, 305nn177178
Laconis v.Burlington Cnty. Bridge Commn, 583 A.2d 1218 (Pa. Super. 1990)209n177
LaFarge Corp. v.Travelers Indem. Co., 118 F.3d 1511 (11th Cir. 1997)505n64
Lago & Sons Dairy, Inc. v.H.P. Hood, Inc., 1994 WL 484306 (D.N.H. 1994)402n350
La Jeune Eugenie; United States v., No. 15,551, 26 F.Cas. 832 (C.C. Mass. 1822)661n286
Lam v.Global Med. Sys., Inc. 111P.3d 1258 (Wash. Ct. App.2005)633n58
Lamb v.MegaFlight, Inc., 26 S.W.3d 627 (Tenn. App.2000)462n165
Lambert v.Kysar, 983 F.2d 1110 (1st Cir. 1993)449n81, 455n127
Land v.Yamaha Motor Corp., U.S.A., 272 F.3d 514 (7th Cir. 2001)320, 320n277
Landolfi, In re, 724 N.Y.S.2d 470 (N.Y. App. Div. 2001)555n10
Table of Cases
739
Langan v. St. Vincents Hosp. of N.Y., 802 N.Y.S.2d 476 (N.Y. App. Div. 2005) 565, 565n70,
565nn7376
Langan v.St. Vincents Hosp. of N.Y., 765 N.Y.S.2d 411 (N.Y. Sup. Ct. 2003)565n72
Lanier v. Syncreon Holdings, Ltd., No. 11-
14780, 2012 WL 3475680 (E.D. Mich. Aug. 14,
2012)449n81, 455, 455n126
Lankenau v.Boles, 990 N.Y.S.2d 394 (N.Y. App. Div. 4 Dept. 2014), re-argument denied, 120 A.D.3d
1612 (N.Y. App. Div. 4 Dept. Sept. 26, 2014)234n301
Lapham-Hickey Steel Corp. v.Protection Mut. Ins. Co., 655 N.E.2d 842 (Ill. 1995)503n53
La Plante v.American Honda Motor Co., 27 F.3d 731 (1st Cir. 1994)298n136
Larrison v.Larrison, 750 A.2d 895 (Pa. Super. 2000)71, 71nn3435
La Societe Nationale Pour La Recherche, La Prod., Le Transp., La Transformation et la Commercialisation
Des Hydrocarbures v.Shaneen Natural Res. Co., 585 F.Supp.57 (S.D.N.Y. 1983)489n341
Lauritzen v.Larsen, 345 U.S. 571 (1953)124, 124n5, 485, 485n313, 634n66, 635n71, 641, 641n127,
642nn128133, 643, 643n141, 644nn142145, 644n148, 669, 669n344, 670, 670n347
Leane v.Joseph Entmt Group, Inc., 642 N.E.2d 852 (Ill. App.1 Dist. 1994)231n288
Leasecomm Corp., Ex parte, 879 So. 2d 1156 (Ala. 2003)461n161
Lebanon, Republic of v.Sothebys, 561 N.Y.S.2d 566 (N.Y. App. Div. 1990)586n30
Lebegern v.Forman, 339 F.Supp.2d 613 (D.N.J. 2004)206n150, 208n165
Ledesma v.Lack Steward Produce, Inc., 816 F.2d 482 (9th Cir. 1986)535n77
Lee v.Saliga, 373 S.E.2d 345 (W. Va. 1988)137n54
Lee ex rel. Lee v.Choice Hotels Intl, Inc., 2006 WL 1148737 (Del. Super. Mar. 21, 2006)231n288,
236n317
LeJeune v.Bliss-Salem, Inc., 85 F.3d 1069 (3d Cir. 1996)301n149, 326n320
Lemons v.Cloer, 206 S.W.3d 60 (Tenn. Ct. App.2006)77n64
Leonard v.Johns-Manville Sales Corp., 305 S.E.2d 528 (N.C. 1983)142n69,143n74
Lessard v.Clarke, 736 A.2d 1226 (N.H. 1999)180n19, 197n95, 197n106
Levy v.Daniels U-Drive Auto Renting Co., 143 A.163 (Conn. 1928)65, 65n3,123
Lewis v.American Family Ins. Group, 555 S.W.2d 579 (Ky. 1977)137n51,151n26
Lewis v.Lewis, 748P.2d 1362 (Haw. 1988)138n55, 174n169
Lewis-DeBoer v. Mooney Aircraft Corp., 728 F. Supp. 642 (D. Colo. 1990) 253n413, 254n424,
304n169, 307n194
Lewis Tree Serv. v.Lucent Techs. Inc., 211 F.R.D. 228 (S.D.N.Y. 2002)423n463
Lexie v.State Farm Mut. Auto. Ins. Co., 469 S.E.2d 61 (Va. 1996)345n14
Liberty Mut. Fire Ins. Co. v.Woodfield Mall, LLC, 941 N.E.2d 209 (Ill. App.2010)503n53
Licci ex rel. Licci v.Lebanese Canadian Bank, SAL, 672 F.3d 155 (2d Cir. 2012)246, 246nn389390
Licci ex rel. Licci v.Lebanese Canadian Bank, SAL, 739 F.3d 45 (2d Cir. 2013)247, 247nn395396
Lichter v.Fritsch, 252 N.W.2d 360 (Wis. 1977)130n22, 163n92, 171n152
Liggett Group Inc. v. Affiliated FM Ins. Co., 788 A.2d 134, 2001 WL 589041 (Del. Super. Ct.
2001)436n2, 512, 512n99, 512nn101104
Lilienthal v.Kaufman, 395P.2d 543 (Or. 1964)135n48, 163n89,689n85
Lim v.Offshore Specialty Fabricators, Inc., 404 F.3d 898 (5th Cir.), cert. denied, 546 U.S. 826, 126 S.Ct.
365 (2005)464n180, 484n309
Lin v.Employees Reins. Corp., 139 A.2d 638 (Pa. 1958)344n10
Lindo v.NCL (Bahamas), Ltd., 652 F.3d 1257 (11th Cir. 2011)464n180, 479n284, 484, 484nn309
310, 485nn314317
Lindsay, In re, 59 F.3d 942 (9th Cir. 1995), cert. denied, 116 S.Ct. 778 (1996)152n28
Lindsay v.Toyota Motor Sales, U.S.A., Inc., 2005 WL 2030311 (S.D.N.Y. Aug. 22, 2005)239n335
Linert v.Foutz, 20 N.E.3d 1047 (Ohio App.7 Dist. 2014)266n502,288n80
Lipcon v.Underwriters at Lloyds, 148 F.3d 1285 (11th Cir. 1998)448n73
Liquidation of Integrity Ins. Co./Sepco Corp., In re, 49 A.3d 428 (N.J. Super. App. Div. 2012), cert.
denied, 213 N.J. 44 (N.J. 2013)510n91
Lister v.NationsBank of Del., N.A., 1997 WL 723056 (S.C. Ct. App.1997)345n18
740
Table of Cases
Lloyd v.Loeffler, 694 F.2d 489 (7th Cir. 1982)397n326

Lombard v.Economic Dev. Admin. of P.R., 1995 WL 447651 (S.D.N.Y. July 27, 1995)258n458
Lommen v.City of E.Grand Forks, 522 N.W.2d 148 (Minn. Ct. App.1994)9n35, 172n162, 209n177
Long v.Holland Am. Line Westours, Inc., 26P.3d 430 (Alaska 2001)376n198, 402n350
Long v.Sears Roebuck & Co., 877 F.Supp.8 (D.D.C. 1995)260, 260n462, 296, 296nn122125, 297,
297nn126127
Lopez-Vanegas; United States v., 493 F.3d 1305 (11th Cir. 2007)633n55
Lord v.Lord, No. CV010380279, 2002 WL 31125621 (Conn. Super. Aug. 20, 2002)245n378
Lou ex rel. Chen v.Otis Elevator Co., 2004 WL 504697 (Mass. Super. 2004)77n69
Loucks v. Standard Oil Co. of N.Y., 120 N.E. 198 (N.Y. 1918) 79, 79nn7678, 83n104, 84n113,
142n70, 160n67, 360n105, 375n196
Love v.Blue Cross & Blue Shield of Ga., Inc., 439 F.Supp.2d 891 (E.D. Wis. 2006)171n157
Loving v.Virginia, 388 U.S. 1 (1967)554,554n4
Lumbermens Mut. Cas. Co. v.Connecticut Bank & Trust Co., 806 F.2d 411 (2d Cir. 1986)504n53
Lupoli v.N. Util. Natural Gas, Inc., 2004 WL 1195308 (Mass. Super. Feb. 11, 2004)309n204
Lurie v.Blackwell, 51P.3d 846 (Wyo. 2002)585n24
Lynch; State v., 969P.2d 920 (Mont. 1998)70, 70nn2931
Lynch v. Stop & Shop Supermarket Co., LLC, 84 Mass. App. Ct. 1118 (Mass. App. Ct. Nov. 6,
2013)540n111
M
M. v. M., 44 Misc. 3d 1210(A), 997 N.Y.S.2d 669, 2014 WL 3673321 (N.Y. Sup. Ct. July 3,
2014)610n122
Ma; United States v., 2006 WL 708559 (S.D.N.Y. Mar. 21, 2006)633n55
MacDonald v.General Motors Corp., 110 F.3d 337 (6th Cir. 1997)297n128, 298n133
Macey v.Rozbicki, 221 N.E.2d 380 (N.Y. 1966)155n44, 155n46,195n75
Machado-Miller v. Mersereau & Shannon, LLP, 43 P.3d 1207 (Or. Ct. App. 2002) 378, 378n214,
379nn215216
Mack v.Royal Caribbean Cruises, Ltd., 838 N.E.2d 80 (Ill. App.2005), appeal denied, 850 N.E.2d 808
(Ill.), cert. denied, 127 S.Ct. 350 (2006)441n41
Maffatone v.Woodson, 240 A.2d 693 (N.J. Super. App. Div. 1968)239n335
Magnant v.Medtronic, Inc., 818 F.Supp.204 (W.D. Mich. 1993)308, 308nn198202
Maguire v.Exeter & Hampton Elec. Co., 325 A.2d 778 (N.H. 1974)170n151
Maher & Assocs., Inc. v.Quality Cabinets, 640 N.E.2d 1000 (Ill. App. Ct. 1994), appeal denied, 159 Ill.
2d 569 (Ill. 1995)429nn498502
Mahne v. Ford Motor Co., 900 F.2d 83 (6th Cir.), cert. denied, 498 U.S. 941 (1990) 300n141,
301n150, 306, 306nn188189, 317n261
Mahoney v.Ronnies Rd. Serv., 468 S.E.2d 279 (N.C. App.), review on additional issues denied, appeal
dismissed, 476 S.E.2d 118 (N.C. 1996), aff d mem., 481 S.E.2d 85 (N.C. 1997)283n43
Major v.Commonwealth, 275 S.W.3d 706 (Ky. 2009)72n39
Makarova v.United States, 201 F.3d 110 (2d Cir. 2000)77n64
Malena v.Marriott Intl, Inc., 651 N.W.2d 850 (Neb. 2002)206n149
Mali v.Keeper of Common Jail (Wildenhuss Case), 120 U.S. 1 (1887)636, 636n82, 637, 637nn83
85, 640,641
Malone v.Corrections Corp. of Am., 553 F.3d 540 (7th Cir. 2009)535n82
Maly v.Genmar Indus., Inc., 1996 WL 28473 (N.D. Ill. Jan. 23, 1996)323, 323nn302307
Manetti-Farrow, Inc. v.Gucci Am., Inc., 858 F.2d 509 (9th Cir. 1988)440n40, 445, 445nn5960
Manion v.Roadway Package Sys., Inc., 938 F.Supp.512 (C.D. Ill. 1996)402n350
Maniscalco v.Brother Intl (USA) Corp., 709 F.3d 202 (3d Cir. 2013)222n253
Mann v.Cooper Tire Co., 761 N.Y.S.2d 635 (N.Y. App. Div. 2003)294n111
Manson v.Keglovits, 19 N.E.3d 823 (Ind. App.2014)232n289
Table of Cases
741
Manuel v.Convergys Corp., 430 F.3d 1132 (11th Cir. 2005)419, 419n436
Marchesani v.Pellerin-Milnor Corp., 269 F.3d 481 (5th Cir. 2001)306n192
Marcos Human Rights Litig., In re Estate of, 978 F.2d 493 (2d Cir. 1991)659n261
Marine Midland Bank, N.A. v. United Mo. Bank, N.A., 643 N.Y.S.2d 528 (N.Y. App. Div. 1st Dept.
1996)420n440
Marion Power Shovel Co. v.Hargis, 698 So. 2d 1246 (Fla. App.3 Dist. 1997)206n149, 208n165
Marmet Health Care Ctr., Inc. v. Brown, __U.S. __, 132 S. Ct. 1201 (2012) 464, 464nn176177,
465n188, 465n190
Marra v.Papandreou, 59 F.Supp.2d 65 (D.D.C. 1999)461n161
Marriage of. See name ofparty
Martin v.Goodyear Tire & Rubber Co., 61P.3d 1196 (Wash. App.2003), review denied, 149 Wash. 2d
1033 (Sept. 5, 2003)296, 296nn119120
Martineau v.Guertin, 751 A.2d 776 (Vt. 2000)197nn100101
Martinez v.Bloomberg LP, 740 F.3d 211 (2d Cir. 2014)453n111, 454nn112115
Martinez v.County of Monroe, 850 N.Y.S.2d 740 (N.Y. App. Div.), leave to appeal dismissed, 889 N.E.2d
496 (N.Y. 2008)563, 563nn6162,564n63
Maryland Cas. Co. v.Continental Cas. Co., 332 F.3d 145 (2d Cir. 2003)503n53
Maryland Cas. Co. v.San Juan Racing Assn, 83P.R.R. 538 (Puerto Rico 1961)135n49,154n36
Marzoni v.Hyatt Corp., 2002 WL 31001833 (E.D. La. Sept. 5, 2002), reconsideration denied, 2002 WL
31319941 (Oct. 15, 2002)236n317
Mascarella v.Brown, 813 F.Supp.1015 (S.D.N.Y. 1993)206n152, 219n243
Masonite Corp. Hardboard Siding Prod. Liab. Litig., In re, 21 F.Supp.2d 593 (E.D. La. 1998)289n84
Masood v.Saleemi, 309 Fed. Appx. 150 (9th Cir. 2009)90n144
Masquat v. DaimlerChrysler Corp., 195 P.3d 48 (Okla. 2008), rehg denied (Oct. 27,
2008)526n19,527n20
Mastafa v. Chevron Corp., 770 F.3d 170 (2d Cir. 2014) 662, 662nn293294, 663nn299304,
664nn305310
Mastondrea v.Occidental Hotels Mgmt. S.A., 918 A.2d 27 (N.J. Super. App. Div. 2007)231n288,
236n317
Mathews v.Novartis Pharms. Co., 953 F.Supp.2d 811 (S.D. Ohio 2013)262n474,282n34
Matrix Acquisitions, LLC v.Hooks, 2011 WL 2464183 (Ohio Ct. App. June 15, 2011)540n112
Matson by Kehoe v.Anctil, 979 F.Supp.1031 (D. Vt. 1997)180n19, 232n289
Matson by Kehoe v.Anctil, 7 F.Supp.2d 423 (D. Vt. 1998)180n19
Maxcess, Inc. v.Lucent Techs., Inc., 433 F.3d 1337 (11th Cir. 2005), rehg & rehg en banc denied, 175
Fed. Appx. 328 (11th Cir. 2006)397n326, 402n351, 404n369
MBI Acquisition Partners, LP v.Chronicle Pubg Co., 2001 WL 148812 (W.D. Wis. 2001)394n304
M. Block & Sons, Inc. v. International Bus. Machs. Corp., 2004 WL 1557631 (N.D. Ill. July 8,
2004)397n326
McAdams v.Massachusetts Mut. Life Ins. Co., 2002 WL 1067449 (D. Mass. 2002), aff d, 391 F.3d 287
(1st Cir. 2004)402n350
McBride v.Whiting-Turner Contracting Co., 1993 WL 489487 (Del. Super. Oct. 21, 1993)aff d, 645
A.2d 568 (Del. 1994)206n149
McCann v.Foster Wheeler LLC, 225P.3d 516 (Cal. 2010)164n97, 166n112, 276n8, 329, 329n332,
329nn335337, 330nn338343, 331, 331n344, 332, 332n348, 535n77, 537n98, 538nn99103
McCarrell v.Hoffman-La Roche, Inc., No. A-3280-07T1, 2009 WL 614484 (N.J. Super. Ct. App. Div.
Mar. 12, 2009), cert. denied, 973 A.2d 385 (N.J. 2009)306n187
McClain; United States v., 545 F.2d 988, rehg denied, 551 F.2d 52 (5th Cir. 1977), revd in part, aff d in
part, 593 F.2d 658 (5th Cir.), cert. denied, 444 U.S. 918 (1979)586n30
McCrossin v.Hicks Chevrolet, Inc., 248 A.2d 917 (D.C. 1969)135n48,163n89
McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963) 638, 638n95,
638nn9799
McCutchen v.Harris, __U.S. __, 134 S.Ct. 903 (2014)468n211
742
Table of Cases
McDowell v.Kmart Corp., 2006 WL 1967363 (E.D. Pa. July 12, 2006)231n288
McDowell Valley Vineyards, Inc. v. Sabate USA Inc., 2005 WL 2893848 (N.D. Cal. Nov. 2,
2005)350n50
McGee v.Arkel Intl, LLC, 671 F.3d 539 (5th Cir. 2012)545, 545n144,546
McGee v.Arkel Intl LLC, 2012 WL 6049156 (E.D. La. Dec. 5, 2012)546n145
McGhee v.Arabian Am. Oil Co., 871 F.2d 1412 (9th Cir. 1989)90n144
McGoff v.Acadia Ins. Co., 30 A.3d 680 (Vt. 2011)496n17
McGovern v.Marriott Intl, Inc., 1996 WL 470643 (E.D. La. Aug. 16, 1996)236n317
McHale v.Kelly, 527 Fed. Appx. 149 (3d Cir. May 30, 2013)535n75
McKeage, State ex rel. v.Cordonnier, 357 S.W.3d 597 (Mo. 2012)423, 423nn459460
McKee v.AT & T Corp., 191P.3d 845 (Wash. 2008)422, 422nn452454
McKinney v.Fairchild Intl, Inc., 487 S.E.2d 913 (W. Va. 1997)540n113
McKinney v.S & S Trucking, Inc., 885 F.Supp.105 (D.N.J. 1995)239n335
McKinnon v.F.H. Morgan & Co., 750 A.2d 1026 (Vt. 2000)319, 319n276
McLennan v.American Eurocopter Corp., Inc., 245 F.3d 403 (5th Cir. 2001)304, 304n173, 307n193
McMillen v.Winona Natl & Sav. Bank, 648 S.W.2d 460 (Ark. 1983)147n2,154n36
McPeek v.McCardle, 888 N.E.2d 171 (Ind. 2008)556n15
McSwain v.McSwain, 215 A.2d 677 (Pa. 1966)196n90
Medelln v.Texas, 552 U.S. 491 (2008)627n13
Medical Instrument Dev. Labs. v.Alcon Labs., 2005 WL 1926673 (N.D. Cal. Aug. 10, 2005)396,
396nn317319, 400n345
Medtronic, Inc. v.Advanced Bionics Corp., 630 N.W.2d 438 (Minn. Ct. App.2001)421n442
Medtronic Sofamor Danek, Inc. v.GKM Trust, 122 Fed. Appx. 493 (Fed. Cir. 2005)397n326
Medtronic Sofamor Danek, Inc. v.Michelson, 2004 WL 2905403 (W.D. Tenn. May 20, 2004)397n326
Meijer, Inc. v. General Star Indem. Co., 826 F. Supp. 241 (W.D. Mich., 1993), aff d, 61 F.3d 903
(6th Cir. 1995)514n114
Melcher v.Apollo Med. Fund Mgt. LLC, 808 N.Y.S.2d 207 (N.Y. App. Div. 2006)402n350
Mellk v.Sarahson, 229 A.2d 625 (N.J. 1967)128n20, 163n88, 180n19,195n75
MElmoyle v.Cohen, 38 U.S. (13 Pet.) 312 (1839)524n6
Melton v.Stephens, 13 N.E.3d 533 (Ind. App.2014), rehg denied (Oct. 14, 2014)231n286, 232n292,
233, 233nn297299
Menard; State v., 888 A.2d 57 (R.I. 2005)84n111
Meng v.Novartis Pharms. Corp., 2009 WL 4623715 (N.J. Super. Nov. 23, 2009)282,282n40
Menlo Logistics, Inc. v.Western Exp., Inc., 2005 WL 2334358 (N.D. Cal. Sept. 23, 2005)397n326
Menzel v.List, 253 N.Y.S.2d 43 (N.Y. App. Div. 1964), on remand, 267 N.Y.S.2d 608 (1966), modified,
279 N.Y.S.2d 608 (N.Y. 1967), modification revd, 246 N.E.2d 742 (1969)586n30
Mercury Coal & Coke, Inc. v.Mannesmann Pipe & Steel Corp., 696 F.2d 315 (4th Cir. 1982)440n40
Merrill Lynch, Pierce, Fenner & Smith, Inc. v.Bobker, 808 F.2d 930 (2d Cir. 1986)490n347
Merrill Lynch, Pierce, Fenner & Smith, Inc. v.Stidham, 658 F.2d 1098 (5th Cir. 1981)416n416
Metropolitan Life Ins. Co. v.Ward, 470 U.S. 869 (1985)30n83
Meyer v.Hawkinson, 626 N.W.2d 262 (N.D. 2001)360, 360n109
Mezinger v.Chrisos, 2004 WL 2550516 (Mass. Super. Ct. Oct. 13, 2004)540n111
Mianecki v.Second Judicial Dist. Ct. in & for Washoe Cnty., 658P.2d 422 (Nev. 1983)209n177
Michaud v.Fairchild Aircraft Inc., 2004 WL 1172897 (Del. Super. May 13, 2004)309n204
Mid-Century Ins. Co. v.Perkins, 179P.3d 633, opinion modified on reconsideration, 195P.3d 59 (Or.
2008)496n17
Midland Funding, LLC v.Paras, 2010 WL 323426 (Ohio Ct. App. Jan. 28, 2010)402n350
Mihalic ex rel. Estate of Johnson v. K-
Mart of Amsterdam, 363 F. Supp. 2d 394 (N.D.N.Y.
2005)209n177
Mikelson v. United Servs. Auto. Assn, 111 P.3d 601 (Haw. 2005) 496n16, 500, 500n37, 501,
501nn4246
Milkovich v.Saari, 203 N.W.2d 408 (Minn. 1973)108n86, 130n22, 171n154, 197n97, 197n103
Millar-Mintz v.Abbott Labs., 645 N.E.2d 278 (Ill. App. Ct. 1994)67n15, 275n6,276n9
Table of Cases
743
Miller, In re, 292 B.R. 409 (9th Cir. 2003)360, 360nn106108

Miller v.Bombardier, Inc., 872 F.Supp.114 (S.D.N.Y. 1995)206n152
Miller v.Gay, 470 A.2d 1353 (Pa. Super. Ct. 1984)130n22, 163n91, 213, 213nn201202, 213n204
Miller v.Miller, 237 N.E.2d 877 (N.Y. 1968)155n42,195n77
Miller v.Provident Adver. & Mktg., Inc., 155 So. 3d 181 (Miss. App., 2014), rehg denied (Oct. 14, 2014),
cert. denied, 154 So. 3d 33 (Miss. 2015)183n39
Miller v.White, 702 A.2d 392 (Vt. 1997)78, 78nn7172, 180n19, 195, 195nn7778, 195nn8182,
196nn8387
Milliken v.Pratt, 125 Mass. 374 (1878)344, 344nn67
Millipore Corp. v.Travelers Indem. Co., 115 F.3d 21 (1st Cir. 1997)505n64
Mills v.Quality Supplier Trucking, Inc., 510 S.E.2d 280 (W. Va. 1998)81n95,142n68
Milwaukee Cty. v.White Co., 296 U.S. 268 (1935)19n19
Minn-Chem, Inc. v.Agrium Inc., 683 F.3d 845 (7th Cir. 2012), cert. dismissed, __U.S. __, 134 S.Ct. 23
(2013)649n183
Missouri v.Holland, 252 U.S. 416 (1920)32n99
Mitchell v.Craft, 211 So. 2d 509 (Miss. 1968)128n19, 151n24,195n78
Mitchell v.Lone Star Ammunition, Inc., 913 F.2d 242 (5th Cir. 1990)304, 304nn171172
Mitchell v. State Farm Ins. Co., 68 P.3d 703 (Mont. 2003) 348, 348n36, 496n16, 500, 500n36,
500n38, 501nn3941
Mitchell; United States v., 553 F.2d 996 (5th Cir. 1977)633n57
Mitchell ex rel. Mitchell v.McNeilus Truck & Mfg., Inc., 2012 WL 5233630 (Mich. Ct. App. Oct. 23,
2012)321n286, 321nn288294, 322n295
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) 426, 426n485,
439n33, 466, 466nn197199, 467, 474, 474n251, 475, 475nn253257, 476, 476n268, 484, 484n305,
485,486
Mitsui & Co. (USA), Inc. v.MIRA M/V, 111 F.3d 33 (5th Cir. 1997)448n73
Miyano Mach. USA, Inc. v.Zonar, 1994 WL 233649 (N.D. Ill. May 23, 1994)397n326, 400n343
Modern Computer Sys. v.Modern Banking Sys., 871 F.2d 734 (8th Cir. 1989)429n504
Modroo v.Nationwide Mut. Fire Ins. Co., 191P.3d 389 (Mont. 2008)496n17
Mohamad v.Palestinian Auth., __U.S. __, 132 S.Ct. 1702 (2012)631,631n40
Mohr v.Langerman, 858 N.W.2d 36 (Table), 2014 WL 5243364 (Iowa Ct. App. Oct. 15, 2014)619,
619nn164165
Monroe v.Numed Inc., 680 N.Y.S.2d 707 (N.Y. App. Div. 1998)219n242
Montgomery v. Wyeth, 580 F.3d 455 (6th Cir. 2009), rehg & rehg en banc denied (Oct. 23,
2009)277n13, 320, 320nn279283, 321nn284285
Moon v.CSA-Credit Solutions of Am., Inc., 696 S.E.2d 486 (Ga. Ct. App.2010)448n74
Moore v.Greene, 431 F.2d 584 (9th Cir. 1970)245n378
Morales v.Ford Motor Co., 313 F.Supp.2d 672 (S.D. Tex. 2004)91n146
Morgan v.Biro Mfg. Co., 474 N.E.2d 286 (Ohio 1984)131n28,151n24
Morrison v.National Australia Bank, Ltd., 561 U.S. 247 (2010)243, 243nn363364, 654, 654n229,
655, 655nn232236, 656nn237247, 657, 657n249, 657n251, 657n253, 658, 663, 663nn296298,
664, 665,666
Mortensen v.Bresnan Commcn, LLC, 722 F.3d 1151 (9th Cir. 2013)470nn223225
Morton Intl, Inc. v.Aetna Cas. & Sur. Co., 666 N.E.2d 1163 (Ohio Ct. App.1995)505n64
Motenko v.MGM Dist., Inc., 921P.2d 933 (Nev. 1996)132n34, 168n133, 206n153, 208n165
Motmanco, Inc. v. McDonalds Corp., 2005 WL 1027261 (M.D. Fla. Mar. 30, 2005) 394n304,
400n341
Motor Club of Am. Ins. Co. v.Hanifi, 145 F.3d 170 (4th Cir. 1998)222n253
Mousa v.Islamic Republic of Iran, 238 F.Supp.2d 1 (D.D.C. 2001)268n512
Movsesian v.Victoria Versicherung AG, 670 F.3d 1067 (9th Cir. 2012)34n114
Moye v.Palma, 622 A.2d 935 (N.J. Super. App. Div. 1993)180n19, 232n289
Moyer v. Citicorp Homeowners, Inc., 799 F.2d 1445, rehg denied, 804 F.2d 681 (11th Cir.
1986)387n264
744
Table of Cases
MRO Commcns, Inc. v.American Tel. & Tel. Co., 197 F.3d 1276 (9th Cir. 1999)401n347
Mucha v.King, 792 F.2d 602 (7th Cir. 1986)586n30
Muchmore v.Trask, 666 S.E.2d 667 (N.C. Ct. App.2008), review improvidently allowed, 686 S.E.2d 151
(N.C. 2009)610, 610n124
Mujica v.AirScan Inc., 771 F.3d 580 (9th Cir. 2014)666, 666nn328329, 667, 667n330, 667nn332
336, 668nn338340
Mullins v.M.G.D. Graphics Sys. Group, 867 F.Supp.1578 (N.D. Ga. 1994)327n321
Murphy v.Thornton, 746 So. 2d 575 (Fla. App.1 Dist. 1999)232n288
Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804) 626, 626n2, 644, 644n147,
644n150
Museum of Fine Arts, Boston v. Seger-Thomschitz, 623 F.3d 1 (1st Cir. 2010), cert. denied, 562 U.S.
1271, rehg denied, __U.S. __, 131 S.Ct. 2176 (2011)589, 589n47, 590, 592,600
Muto v.CBS Corp., 668 F.3d 53 (2d Cir. 2012)526n20
Mutual Concepts, Inc. v.First Natl Bank of Omaha, 495 Fed. Appx. 514, 2012 WL 5295192 (5th Cir.
2012)77n64, 401n346
Mwani v.Bin Laden, 417 F.3d 1 (D.D.C. 2005)630n37
Myers v.Gaither, 232 A.2d 577 (D.C. 1967)128n19
Myers v.Langlois, 721 A.2d 129 (Vt. 1998)180n19,197n95
N
Nadler v.Liberty Mut. Fire Ins. Co., 424 S.E.2d 256 (W. Va. 1992)137n54
Naghiu v.Inter-Continental Hotels Group, Inc., 165 F.R.D. 413 (D. Del. 1996)236n317
Najarian v.National Amusements, Inc., 768 A.2d 1253 (R.I. 2001)148n6, 231n288
Nasco, Inc. v.Gimbert, 238 S.E.2d 368 (Ga. 1977)416n416
Nash v. Tindall Corp., 650 S.E.2d 81 (S.C. Ct. App. 2007), rehg denied (Sept. 20, 2007), cert. denied
(June 26, 2008)231n288, 236n317,452n98
Nashua River Paper Co. v.Hammermill Paper Co., 111 N.E. 678 (Mass. 1916)438n12
National Equip. Rental, Ltd. v.Szukhent, 375 U.S. 311 (1964)438n11
National Glass, Inc. v.J.C. Penney Prop., Inc., 650 A.2d 246 (Md. 1994)152n27,345n20
National Indus. Grp. (Holding) v.Carlyle Inv. Mgmt. LLC, 67 A.3d 373 (Del. 2013)461n161
National Oil Corp. v.Libyan Sun Oil Co., 733 F.Supp.800 (D. Del. 1990)489n341
National Starch & Chem. Corp. v.Newman, 577 S.W.2d 99 (Mo. App.1978)137n51
National Union Fire Ins. Co. of Pittsburgh v.Dassault Falcon Jet Corp., 263 Fed. Appx. 604, 2008 WL
122150 (9th Cir. Jan. 11, 2008)283n45
National Union Fire Ins. Co. of Pittsburgh, PA. v. Standard Fusee Corp., 940 N.E.2d 810 (Ind.
2010)503, 503n52, 504n54, 504nn5657
Nedlloyd Lines B.V.v.Superior Ct., 834P.2d 1148 (Cal. 1992)135n50, 163n93, 346n26, 346n28,
376n198, 397, 397n327, 398nn329331, 400n343
Neely v.Club Med Mgmt. Servs., Inc., 63 F.3d 166 (3d Cir. 1995)670n347
Nelson v.Aetna Life Ins. Co., 359 F.Supp.271 (W.D. Mo. 1973)495n12
Nelson v.Hix, 522 N.E.2d 1214 (Ill. 1988)149n18,195n76
Nelson v.International Paint Co., 716 F.2d 640 (9th Cir. 1983)535n77
Nelson v.Nelson, 409 S.W.3d 629 (Tenn. Ct. App.2013), appeal denied (Aug. 13, 2013)496n17
Nelson v.Sandoz Pharm. Corp., 288 F.3d 954 (7th Cir. 2002)289n84,535n79
Nesladek v. Ford Motor Co., 46 F.3d 734 (8th Cir.), cert. denied, 516 U.S. 814 (1995) 314n245,
333n361
Ness v.Ford Motor Co., 1993 WL 996164 (N.D. Ill. July 20, 1993)328, 328nn326331
Nestle USA, Inc.; Doe 1 v., 766 F.3d 1013 (9th Cir. 2014), rehg & rehg en banc denied, __ F.3d __, 2015
WL 3407226, as amended (June 10, 2015), pub. ordered, 786 F.3d 801 (9th Cir. 2015)660n275,
665, 665nn318321,666
Netherlands v.Woodner, No. 89 Civ. 7425 (S.D.N.Y. 1989)586n30
Table of Cases
745
Neto v.Thorner, 718 F.Supp.1222 (S.D.N.Y. 1989)623n200

Neumeier v. Kuehner, 286 N.E.2d 454 (N.Y. 1972), appeal after remand, 43 A.D.2d 109, 349
N.Y.S.2d 866 (1973) 127n17, 128n20, 155, 155nn4546, 156, 156n47, 157, 211, 211n188,
212n198,226
Nevada v.Hall, 440 U.S. 410 (1979)209, 209n172
New v.Tac & C Energy, Inc., 355 S.E.2d 629 (W. Va. 1987)137n54
Newcomb v.Haywood, 2003 WL 138404 (Mass. Super. Jan. 8, 2003)240n335
New England Tel. & Tel. Co. v.Gourdeau Constr. Co., 647 N.E.2d 42 (Mass. 1995)540n111
New Hampshire Ins. Co. v.Hill, 516 Fed. Appx. 803 (11th Cir. 2013)496n17
New Moon Shipping Co. v.MAN B &W Diesel AG, 121 F.3d 24 (2d Cir. 1997)448n73
New York City Asbestos Litig., In re, 921 N.Y.S.2d 466 (N.Y. Sup. 2011) 276n10, 333, 333n362,
334n364
NewYork Life Ins. Co. v.Dodge, 246 U.S. 357 (1918)23,23n34
NewYork Life Ins. Co. v.Head, 234 U.S. 149 (1914)23n35
Nexen Inc. v.Gulf Interstate Engg Co., 224 S.W.3d 412 (Tex. App.2006)397n326
Nez v.Forney, 783P.2d 471 (N.M. 1989)402n350
NGK Metals Corp. v. National Union Fire Ins. Co., 2005 WL 1115925 (E.D. Tenn. 2005) 520,
520n144, 520nn146147
Nierman v. Hyatt Corp., 808 N.E.2d 290 (Mass. 2004) 540n111, 542n132, 543, 543nn133134,
543n136,544
Nikbin v.Islamic Republic of Iran, 517 F.Supp.2d 416 (D.D.C. 2007)631n45
Nippon Paper Indus. Co.; United States v., 109 F.3d 1 (1st Cir. 1997)243n362
Nitro-Lift Techs., LLC v. Howard, __U.S. __, 133 S. Ct. 500 (2012) 460n157, 464nn181182,
465n188
NL Indus. v.Commercial Union Ins. Co., 65 F.3d 314 (3d Cir. 1995)510, 510nn8991
NMP Corp. v.Parametric Tech. Corp., 958 F.Supp.1536 (N.D. Okla. 1997)395n304
Nnadili v.Chevron U.S.A., Inc., 435 F.Supp.2d 93 (D.D.C. 2006)246n385
Noble v.Moore, 2002 WL 172665 (Conn. Super. Jan. 7, 2002)234n301
Nodak Mut. Ins. Co. v.American Family Mut. Ins. Co., 604 N.W.2d 91 (Minn. 2000)78n70, 149,
149nn811, 149n13, 171n154, 171n156, 173n164, 213, 213n205, 213nn207208,496n16
Nodak Mut. Ins. Co. v.McDowell, 784 N.W.2d 483 (S.D. 2010)496n17
Noel v. Ford Motor Co., No. 6:11-
cv-
370-
Orl-
28DAB, 2013 WL 1786637 (M.D. Fla. Apr. 26,
2013)287n70
Nolan v.Fifteenth Judicial Dist. Attorneys Office, 62 So. 3d 805 (La. Ct. App.), rehg denied (May 25,
2011), writ denied, 68 So. 3d 520 (La. 2011)83n105
Nordwind v.Rowland, 584 F.3d 420 (2d Cir. 2009)91n146
Norfolk S.Corp. v.California Union Ins. Co., 859 So. 2d 167 (La. Ct. App.2003)436n2
Norman v.Ault, 695 S.E.2d 633 (Ga. 2010)555n10
Normann v.Johns-Manville Corp., 593 A.2d 890 (Pa. Super. 1991), appeal denied, 607 A.2d 255 (Pa.
1992)322nn296297
Norris v.Alexander, 567 S.E.2d 466 (N.C. Ct. App.2002)184n39
North Am. Philips Corp. v.Aetna Cas. & Sur. Co., 1994 WL 555399 (Del. Super. Ct. 1994)436n2
North Bergen Rex Transp. v.Trailer Leasing Co., 730 A.2d 843 (N.J. 1999)401nn346347
Northern Sec. Co. v.United States, 193 U.S. 197, 24 S.Ct. 436 (1904)656n245
Northrop Grumman Ship Sys., Inc. v.Ministry of Def. of Republic of Venezuela, 575 F.3d 491 (5th Cir.
2009)89n135
Northwestern Mut. Life Ins. Co. v.Wender, 940 F.Supp.62 (S.D.N.Y. 1996)253n413
Notaro v.Sterling Transp. Servs., LLC, 943 N.Y.S.2d 793 (N.Y. Sup.2012)402n350
Nurie, In re Marriage of, 98 Cal. Rptr. 3d 200, 176 Cal. App.4th 478 (2009)90n144
Nute v.Hamilton Mut. Ins. Co., 72 Mass. (6 Gray) 174 (1856)438n12
NuvaRing Prods. Liab. Litig., In re, 957 F.Supp.2d 1110 (E.D. Mo. 2013)262n475,285n56
Nuzzi v.Aupaircare, Inc., No. 08-1210, 2009 WL 2460778 (3d Cir. Aug. 12, 2009)394n304
746
Table of Cases
O
Obergefell v. Hodges, __U.S. __, 135 S. Ct. 2584 (2015) 554, 554n5, 556, 556n17, 561, 561n46,
561nn4855, 562, 563n59,576
OBrien v.Marriot Intl, Inc., 2006 WL 1806567 (E.D.N.Y. June 29, 2006)212n198
Ocon v.Thermoforming Sys., 2013 IL App (1st) 121670-U (Ill. App. Ct. June 10, 2013)387n267
OConnor v.OConnor, 519 A.2d 13 (Conn. 1986)131n28, 149n16, 149n18, 151n24, 180n19,195n78
Oddo v.Presser, 581 S.E.2d 123 (N.C. Ct. App.2003)184n39
ODonnell; Doe v., 924 N.Y.S.2d 684 (N.Y. App. Div. 3rd Dept. 2011), leave to appeal denied, 957 N.E.2d
1157 (N.Y. 2011)83n105
Offshore Logistics, Inc. v.Bell Helicopter Textron, 1995 WL 555593 (E.D. La. Sept. 15, 1995)253n413,
307n194
Offshore Rental Co. v.Continental Oil Co., 583P.2d 721 (Cal. 1978)164n97, 166, 166n111, 167,
167nn127129, 168, 168nn129132, 329, 329n334, 330, 331,332
Ohayon v.Safeco Ins. Co., 747 N.E.2d 206 (Ohio 2001)497n17
OKeefe v.Mercedes-Benz USA, LLC, 214 F.R.D. 266 (E.D. Pa. 2003)242n355
OKeeffe v.Snyder, 416 A.2d 862 (N.J. 1980)601n82
Old Dominion Freight Line, Inc., State ex rel. v.Dally, 369 S.W.3d 773 (Mo. Ct. App.2012)527n20
Olinick v. BMG Entmt, 42 Cal. Rptr. 3d 268 (Cal. Ct. App.), review denied (Aug. 16, 2006) 398,
398nn332333, 400n342, 406n373, 421n446
Oliver v.Davis, 679 So. 2d 462 (La. App.1 Cir. 1996)240n335
Oliver B.Cannon & Son, Inc. v.Dorr-Oliver, Inc., 394 A.2d 1160 (Del. 1978)137n51,151n26
Olson v.Empire Dist. Elec. Co., 14 S.W.3d 218 (Mo. App. S.D. 2000)231n288
1-800-Got Junk? LLC v.Superior Court, 116 Cal. Rptr. 3d 923 (Cal. Dist. Ct. App.2010), rehg denied
(Nov. 5, 2010), review denied (Jan. 12, 2011)371n183, 431, 431nn510514, 432, 432n523
One Beacon Am. Ins. Co. v.Huntsman Polymers Corp., 276P.3d 1156 (Utah Ct. App.), cert. denied,
285P.3d 1229 (Utah 2012)505n64
OrbusNeich Med. Co. v.Boston Sci. Corp., 694 F.Supp.2d 106 (D. Mass. 2010)404n365, 404n367
Order of United Commercial Travelers v.Wolfe, 331 U.S. 586 (1947)27n63
Orleans Parish Sch. Bd. v. United States Gypsum Co., 1993 WL 205091 (E.D. La. June 8,
1993)309n205
Ou Kullasadu Invest v.Kask, 2009 WL 2595651 (Wash. Ct. App. Aug. 24, 2009)91n146
Owen v.Owen, 427 A.2d 933 (D.C. 1981)135n50, 163n94, 173n167
Owen v.Owen, 444 N.W.2d 710 (S.D. 1989)81n94
Owen J.Roberts Sch. Dist. v.HTE, Inc., 2003 WL 735098 (E.D. Pa. Feb. 28, 2003)395n304
Owens v.Mississippi Farm Bureau Cas. Ins. Co., 910 So. 2d 1065 (Miss. 2005)496n17
Owens v.Republic of Sudan, 412 F.Supp.2d 99 (D.D.C. 2006)630n37
Oyola v.Burgos, 864 A.2d 624 (R.I. 2005)148n7, 171n153, 246n384
P
Pacific Employers Ins. Co. v.Industrial Accident Commn, 306 U.S. 493 (1939)24, 24nn3940,99n34
Padula v.Lilarn Props. Corp., 644 N.E.2d 1001 (N.Y. 1994)187, 187nn5054, 229n281, 231n287,
232n292, 249n404
Pakootas v.Teck Cominco Metals, Ltd., 452 F.3d 1066 (9th Cir. 2006)246n385
Palmer v.Palmer, 654 So. 2d 1 (Miss. 1995)609n117
Palmer G.Lewis Co. v.ARCO Chem. Co., 904P.2d 1221 (Alaska 1995)138n56, 149n17,151n26
Panama, Republic of v.American Tobacco Co., 2006 WL 1933740 (Del. Super. July 13, 2006), aff d, 919
A.2d 1116 (Del. 2007)90n140
P & S Bus. Machs. v.Canon USA, Inc., 331 F.3d 804 (11th Cir. 2003)440n40,448n73
The Paquete Habana, 175 U.S. 677 (1900)626,626n3
Param Petroleum Corp. v. Commerce & Indus. Ins. Co., 686 A.2d 377 (N.J. Super. Ct. App. Div.
1997)495n12,507n78
Table of Cases
747
Pardey v.Boulevard Billiard Club, 518 A.2d 1349 (R.I. 1986)171n153, 237, 237nn322324
Paris v.United States. See Juda; United Statesv.
Paris Air Crash of Mar. 3, In re, 399 F.Supp.732 (C.D. Cal. 1975)676n23
Parker v. Idaho State Tax Commn, 230 P.3d 734 (Idaho 2010), rehg denied (Apr. 29, 2010) 613,
613n138
Parrott v.Severs Trucking, LLC, 422 S.W.3d 478 (Mo. App. S.D. 2014), rehg &/or transfer denied (Feb.
28, 2014), transfer denied (Apr. 29, 2014)231n286, 232n292
Parsons & Whittemore Overseas Co. v.Societe Generale de LIndustrie du Papier, 508 F.2d 969 (2d Cir.
1974)489n341
Pascente v.Pascente, 1993 WL 43502 (S.D.N.Y. Feb. 16, 1993)206n152
Pasquantino v.United States, 544 U.S. 349 (2005)85, 85nn120122
Pastor v.Union Cen. Life Ins. Co., 184 F.Supp.2d 1301 (S.D. Fla. 2002)520n150
Paternity & Custody of Baby Boy A, In re, 2007 WL 4304448 (Minn. Ct. App. Dec. 11, 2007)578n143
Patten v.General Motors Corp., 699 F.Supp.1500 (W.D. Okla. 1987)276n11
Patton v.Carnrike, 510 F.Supp.625 (N.D.N.Y. 1981)239nn333334
Paul v.National Life, 352 S.E.2d 550 (W. Va. 1986)81n95, 142n68, 143, 143nn7576
Paul Fire & Marine Ins. Co. v.Paw Paws Camper City, Inc., 346 F.3d 153 (5th Cir. 2003)527n22
Pelican Point Operations, LLC v.Carroll Childers Co., 807 So. 2d 1171 (La. App.2002)209n177
Pelleport Invrs Inc. v.Budco Quality Theatres Inc., 741 F.2d 273 (9th Cir. 1984)440n40
Pendleton; United States v., 658 F.3d 299 (3d Cir. 2011), cert. denied, __U.S. __, 132 S. Ct. 2771
(2012)629n30
PenneCom B.V.v.Merrill Lynch & Co., 2005 WL 2044948 (S.D.N.Y. Aug. 25, 2005)232n290
People v. See name of opposingparty
Performance Motorcars of Westchester, Inc. v.KPMG Peat Marwick, 643 A.2d 39 (N.J. Super. App. Div.
1994)219n239
Perkins v.Dynasty Group Auto, 2003 WL 22810452 (Tex. App. Nov. 25, 2003)240n335
Perlaza; United States v., 439 F.3d 1149 (9th Cir. 2006)633n55
Peru, Government of v. Johnson, 720 F. Supp. 810 (C.D. Cal. 1989), aff d, 933 F.2d 1013 (9th Cir.
1991)586n30,594n64
Peters v.Peters, 634P.2d 586 (Haw. 1981)131n31, 138n55, 174n169, 194nn7374,501n43
Petersen v. Boeing Co., 715 F.3d 276 (9th Cir. 2013) 441, 441n45, 442nn46
48, 448n73,
458nn142143
Peterson v.BASF Corp., 618 N.W.2d 821 (Minn. App.2000)242n355
Peterson v.Islamic Republic of Iran, 515 F.Supp.2d 25 (D.D.C. 2007)630n37
Peterson v.Texas, 635P.2d 241 (Colo. App.1981)209n177
Petroleum Corp. v.Krystal Gas Mktg. Co., No. 05-CV-0716-CVE-SAJ, 2006 WL 2645133 (N.D. Okla.
Sept. 12, 2006)406n373
Pevoski v.Pevoski, 358 N.E.2d 416 (Mass. 1976)130n24,195n76
Pfizer, Inc. v.Employers Ins. of Wausau, 712 A.2d 634 (N.J. 1998)173n166, 502n48, 505n64, 506,
506n69, 507, 507nn7278, 508, 508nn7984, 509,509n88
Philip Morris, Inc. v.Angeletti, 752 A.2d 200 (Md. 2000)67n15,275n7
Philip Morris USA Inc.; United States v., 566 F.3d 1095 (D.C. Cir. 2009)243n362
Phillips v. Audio Active Ltd., 494 F.3d 378 (2d Cir. 2007) 440n40, 448n73, 453nn105
106,
453nn108110
Phillips v. General Motors Corp., 995 P.2d 1002 (Mont. 2000) 132n35, 151n24, 180n19, 267,
267nn508509, 268, 298, 298n135, 299nn137141, 300nn142147, 301, 301n148
Phillips Petroleum Co. v.Shutts, 472 U.S. 797 (1985)27, 27nn6465
Phoenix Surgicals, LLC v.Blackstone Med., Inc., 2011 WL 63992 (D. Conn. 2011)440n40
Pich v.Nugent, No. Civ. 05-82-B-K, 2005 WL 2428156 (D. Me. Sept. 30, 2005)246n384
Pietrantonio v.United States, 827 F.Supp.458 (W.D. Mich. 1993)219n238
Pike v.Bruce Church, Inc., 397 U.S. 137 (1970)16n8
Pink; United States v., 315 U.S. 203 (1942)32n98
Pioneer Credit Corp. v.Carden, 245 A.2d 891 (Vt. 1968)135n47,152n26
748
Table of Cases
Piper Aircraft Co. v.Reyno, 454 U.S. 235 (1981)304n168

Pisacane v.Italia Societa Per Azioni Di Navigazione, 219 F.Supp.424 (S.D.N.Y. 1963)387n264
Pitcock v. Kasowitz, Benson, Torres & Friedman, LLP, 46 A.3d 586 (N.J. Super. Ct. App. Div.
2012)535n75
Pittman v.Maldania, Inc., 2001 WL 1221704 (Del. Super. July 31, 2001)180n19, 242n354
Playtex v.Columbia Cas. Co., 1989 Del. Super. Lexis 320 (Del. Super. Ct. 1989)513n107
Playtex v.St. Paul Surplus Lines Ins. Co., 564 A.2d 681 (Del. Super. 1989)513n107
Polar Shipping, Ltd. v.Oriental Shipping Corp., 680 F.2d 627 (9th Cir. 1981)448n73
Police & Firemens Disability & Pension Fund v.Redding, 2002 WL 1767362 (Ohio Ct. App. Aug. 1,
2002), appeal not allowed, 780 N.E.2d 287 (Ohio 2002)555n10,558n21
Politte v.McDonalds Corp., 16 F.3d 417, 1994 U.S. App. Lexis 1506 (10th Cir. Jan. 10, 1994)394n304
Pollack v.Bridgestone/Firestone, Inc., 939 F.Supp.151 (D. Conn. 1996)298n132
Ponorovskaya v.Stecklow, 987 N.Y.S.2d 543 (N.Y. Sup. Ct. 2014)556n15
Port v.Cowan, 44 A.3d 970 (Md. 2012)564,564n64
Portfolio Recovery Assocs., LLC v.King, 927 N.E.2d 1059 (N.Y. 2010), reargument denied, 15 N.Y.3d
833 (N.Y. Sept. 16, 2010)402n350
Pounders v.Enserch E & C, Inc., 306P.3d 9 (Ariz. 2013)276n8, 332, 332nn349353, 333nn353354
Powell v.American Charter Fed. S.& L.Assn, 514 N.W.2d 326 (Neb. 1994)138n56, 149n17,151n26
Powell v.Erb, 709 A.2d 1294 (Md. 1998)142n69
Power & Tel. Supply Co. v.Harmonic, Inc., 268 F.Supp.2d 981 (W.D. Tenn. 2003)426n482
Powers v.Wal-Mart Stores, Inc., 2006 WL 2868320 (W.D. Va. Oct. 5, 2006)231n288
Prashad v.Copeland, 685 S.E.2d 199 (Va. Ct. App.2009)577n136
Precision Gear Co. v.Continental Motors, Inc., 135 So. 3d 953 (Ala. 2013)67n10
Precision Screen Machs., Inc. v.Elexon, Inc., 1996 WL 495564 (N.D. Ill. 1996)395n304
Precision Tune Auto Care v.Radcliffe, 815 So. 2d 708 (Fla. App.2002)401n346
Presbyterian Church of Sudan v.Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009)664n307
Prevatt v.Islamic Republic of Iran, 421 F.Supp.2d 152 (D.D.C. 2006)268n512,630n37
Price v.Brown Group, Inc., 619 N.Y.S.2d 414 (N.Y. App. Div. 1994), appeal denied, 1995 WL 121748
(N.Y. App. Div. 1995)436n2
Price v.Litton Sys., Inc., 784 F.2d 600 (5th Cir. 1986)276n11, 327, 327n325
Price v.Socialist Peoples Libyan Arab Jamahiriya, 384 F.Supp.2d 120 (D.D.C. 2005)630n37
Price & Price Mech. of N.C., Inc. v.Miken Corp., 661 S.E.2d 775 (N.C. Ct. App.2008)416n416
Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967) 460, 460nn154156, 472,
472n233, 473nn240241
Prime Start Ltd. v.Maher Forest Prods., Ltd., 442 F.Supp.2d 1113 (W.D. Wash. 2006)350n50
Pritchard v.Norton, 106 U.S. 124 (1882)364n135
Proctor v.Mavis, 125P.3d 801 (Or. Ct. App.2005), rev. den., 136P.3d 742 (Or. 2006)390n283
Professional Consultation Servs. Inc. v. Schaefer & Strohminger Inc., 412 Fed. Appx. 822 (6th Cir.
2011)535n80
Pro-Football, Inc. v.McCants, 51 A.3d 586 (Md. 2012)448n74
Pro-Football, Inc. v.Tupa, 51 A.3d 544 (Md. 2012)448n74, 449, 449nn7980
Progressive Gulf Ins. Co. v.Faehnrich, 752 F.3d 746 (9th Cir. 2014)499n31
Progressive Gulf Ins. Co. v.Faehnrich, 327P.3d 1061 (Nev. 2014)499n30
Provence v.National Carriers, Inc., 360 S.W.3d 725 (Ark. 2010)461n161
Prows v.Pinpoint Retail Sys., Inc., 868P.2d 809 (Utah 1993)371n183
Pullen, In re Estate of, 810 N.W.2d 532 (Iowa Ct. App.2012)90n140
P.V. ex rel. T.V.v.Camp Jaycee, 962 A.2d 453 (N.J. 2008)130n22, 156n50, 163n90, 164n99, 185n45,
197n99, 198n107,535n75
Q
Qi; Doe v., 349 F.Supp.2d 1258 (N.D. Cal. 2004)631n45
Quill Corp. v.N.D., 504 U.S. 298 (1992)16n8
Table of Cases
749
Quinn v.St. Charles Gaming Co., 815 So. 2d 963 (La. App.3 Cir. 2002)239n334
Quinonez v. Empire Today, No. A134448, 2013 WL 1174141 (Cal. Ct. App. Mar. 22, 2013) 468,
468469n215, 468n214
Quirion v.Veilleux, 65 A.3d 1287 (Me. 2013)196n92
Quiroz v.MSC Mediterranean Shipping Co. S.A., 522 Fed. Appx. 655 (11th Cir. 2013)464n180
R
Radeljak v. DaimlerChrysler Corp., 719 N.W.2d 40 (Mich. 2006) 170n150, 317, 317nn263265,
318n266
Radioactive, J.V.v.Manson, 153 F.Supp.2d 462 (S.D.N.Y. 2001)371n182
Raflo v.United States, 157 F.Supp.2d 1 (D.D.C. 2001)219n238
Ragan v.Merchants Transfer & Warehouse Co., 337 U.S. 530 (1949)40n153
Rains v.Jones, 2004 WL 2955277 (La. App.2004)497n17
Rajala v.Donnelly Meiners Jordan Kline P.C., 193 F.3d 925 (8th Cir. 1999)526n20
Rakes v.Life Invrs Ins. Co. of Am., 2007 WL 2122195 (N.D. Iowa July 20, 2007)242n355
Ramey v.Wal-Mart, Inc., 967 F.Supp.843 (E.D. Pa. 1997)231n288
Ramsey Cnty. v.Yee Lee, 770 N.W.2d 572 (Minn. Ct. App.2009)578n146
Randle v.Spectran, 129 F.R.D. 386 (D. Mass. 1988)242n355
Ranftle, In re Estate of, 917 N.Y.S.2d 195 (N.Y. App. Div. 2011)564n63
Rasul v.Bush, 542 U.S. 466 (2004)627, 627nn2021
Rau v.Rau, 432P.2d 910 (Ariz. Ct. App.1967)606n102
Raydiant Tech., LLC v.Fly-N-Hog Media Group, Inc., 439 S.W.3d 238 (Mo. App.2014)454nn117118
Reagan v.McGee Drilling Corp., 933P.2d 867 (N.M. Ct. App.1997)345n16
Reale by Reale v.Herco, Inc., 589 N.Y.S.2d 502 (N.Y. App. Div. 1992)206n152, 212n198
Red Lion Hotels Franchising, Inc. v.MAK, LLC, 663 F.3d 1080 (9th Cir. 2011)429n503
Redmond v.Redmond, 724 F.3d 729 (7th Cir. 2013), rehg denied (Aug. 29, 2013)574n122
Reed v.Islamic Republic of Iran, 439 F.Supp.2d 53 (D.D.C. 2006)268n512,630n37
Reed v.University of N.D., 543 N.W.2d 106 (Minn. App.1996)206n154
Reger v. National Assn of Bedding Mfgs. Group Ins. Trust Fund, 372 N.Y.S.2d 97 (N.Y. Sup. Ct.
1975)495n12
Regier v.Islamic Republic of Iran, 281 F.Supp.2d 87 (D.D.C. 2003)630n37
Reich v.Purcell, 432P.2d 727 (Cal. 1967)128n20, 163n88,346n28
Reichhold Chem., Inc. v.Hartford Acc. & Indem. Co., 750 A.2d 1051 (Conn. 2000)505n64
Reichwein v.Jackson Purchase Energy Corp., 397 S.W.3d 413 (Ky. App.2012), review denied (May 15,
2013)206n153
Reino de Espana v.American Bureau of Shipping, Inc., 691 F.3d 461 (2d Cir. 2012)643n138
Renard, Estate of, 437 N.Y.S.2d 860 (N.Y. Sur. 1981), aff d, 439 N.E.2d 341 (N.Y. 1982) 623,
623nn197198
Renfroe v.Eli Lilly & Co., 686 F.2d 642 (8th Cir. 1982)276n9
Rent-A-Center W., Inc. v.Jackson, 561 U.S. 63, 130 S.Ct. 2772 (2010)473n239
REO Sales, Inc. v.Prudential Ins. Co., 925 F.Supp.1491 (D. Colo. 1996)461n161
Republic of. See name of republic
Resner v.Owners Ins. Co., 2002 WL 236970 (Ohio Ct. App. Feb. 14, 2002)540n112
Resurgence Fin., LLC v.Chambers, 92 Cal. Rptr. 3d 844 (Cal. Ct. App.2009)402n351
Rhoades, In re Estate of, 607 N.Y.S.2d 893 (N.Y. Sup. Ct. 1994)623, 623n201, 624nn202204
Rhone Mediterranee Compagnia Francese Di Assicurazioni E Riassicurazoni v.Lauro, 712 F.2d 50 (3d
Cir. 1983)479nn285286
Ricci v.Alternative Energy Inc., 211 F.3d 157 (1st Cir. 2000)206n149, 208n165
Rice v. Dow Chem. Co., 875 P.2d 1213 (Wash. 1994) 276n8, 276n9, 333, 333nn356361, 533,
533n57,533n64
Rice v.Nova Biomed. Corp., 38 F.3d 909 (7th Cir. 1994)246n388, 258n456
Richards v.Lloyds of London, 135 F.3d 1289 (9th Cir. 1998)448n73, 461n161
750
Table of Cases
Richards v. United States, 369 U.S. 1 (1962) 38n141, 650, 650nn194195, 651, 652n215, 653,
653n216
Richardson v.Michelin N.Am., Inc., 1998 WL 135804 (W.D.N.Y. Mar. 18, 1998)232n291
Riley v.Kingsley Underwriting Agencies, Ltd., 969 F.2d 953 (10th Cir. 1992)448n73, 461n161
Rimkus v.Islamic Republic of Iran, 750 F.Supp.2d 163 (D.D.C. 2010)268n512
Ristaino v. District of Columbia Bates Equip. Co., 2004 WL 1171247 (Mass. Super. Ct. May 12,
2004)540n111
Rivera v.Rivera, 243P.3d 1148 (N.M. Ct. App.), cert. denied, 243P.3d 1146 (N.M. 2010)556n15
RLS Assocs., LLC v.United Bank of Kuwait PLC, 464 F.Supp.2d 206 (S.D.N.Y. 2006)401n346
R.M.v.Dr.R., 855 N.Y.S.2d 865 (N.Y. Sup. Ct. 2008)555n11
R.M.v.Dr.R., 859 N.Y.S.2d 906 (N.Y. Sup. Ct. 2008)555n11
Roberts v.Locke, 304P.3d 116 (Wyo. 2013)614, 614n139, 614n141, 615nn142143
Robinson v.Bland, 2 Burr. 1077 (1760)362n119
Robinson v. McNeil Consumer Healthcare, 615 F.3d 861 (7th Cir. 2010) 277n13, 334, 334n368,
335nn369372
Robinson v.Robinson, 778 So. 2d 1105 (La. 2001)371n180
Roby v.Corporation of Lloyds, 996 F.2d 1353 (2d Cir. 1993)397n326,448n73
Roeder v.Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003)630n37
Roll v.Tracor, Inc., 140 F.Supp.2d 1073 (D. Nev. 2001)292, 292n98, 292n100
Romani v.Cramer, Inc., 992 F.Supp.74 (D. Mass. 1998)301n149, 326n319
Romero v.International Terminal Operating Co., 385 U.S. 354 (1959)642, 642n134
Rong Yao Zhou v.Jennifer Mall Rest., Inc., 534 A.2d 1268 (D.C. App.1987)180n19, 239, 239n331,
239nn333334
Roper v.Team Fleet Fin. Corp., 2006 WL 288699 (N.Y. Sup. Feb. 7, 2006)240n335
Rosenberg v.Seattle Art Museum, 42 F.Supp.2d 1029, motion to dismiss granted, 70 F.Supp.2d 1163
(W.D. Wash. 1999)586n30
Rosenthal v.Ford Motor Co., 462 F.Supp.2d 296 (D. Conn. 2006)293, 293n106, 294nn107109
Ross v.Johns-Manville Corp., 766 F.2d 823 (3d Cir. 1985)276n9
Rowe v.Hoffman-La Roche, Inc., 917 A.2d 767 (N.J. 2007)311n222, 312nn225229, 313n234
Rowland v.Novartis Pharms. Corp., 983 F.Supp.2d 615 (W.D. Pa. 2013)258n456, 262n475, 284,
284n47, 284nn4952,285n53
Royal Bed & Spring Co. v.Famossul Industria, 906 F.2d 45 (1st Cir. 1990)440n40
R-Square Inves. v.Teledyne Indus., Inc., 1997 WL 436245 (E.D. La. July 31, 1997)291n96
Rucker v.Oasis Legal Fin., LLC, 632 F.3d 1231 (11th Cir. 2011)443n52, 461n161
Rudgayzer v.Google, Inc., 986 F.Supp.2d 151 (E.D.N.Y. 2013)448n73, 449n81, 455, 455n123
Rufer v. Abbott Labs., 2003 WL 22430193 (Wash. App. Oct. 27, 2003), aff d in part, revd in part,
114P.3d 1182 (Wash. 2005)253n413
Ruiz v.Affinity Logistics Corp., 667 F.3d 1318 (9th Cir. 2012)416n416
Ruiz v.Blentech Corp., 89 F.3d 320 (7th Cir. 1996), cert. denied, 519 U.S. 1077 (1997)307n196
Rungee v.Allied Van Lines, Inc., 449P.2d 378 (Idaho 1968)135n47,151n26
Russell v.Bush & Burchett, Inc., 559 S.E.2d 36 (W. Va. 2001)142n69,143n73
Rutherford v.Goodyear Tire & Rubber Co., 943 F.Supp.789 (W.D. Ky. 1996), aff d, 142 F.3d 436 (6th
Cir. 1998)276n11, 289n86, 301n150, 318, 318nn267271
Rutledge v.Rockwells of Bedford, Inc., 613 N.Y.S.2d 179 (N.Y. App. Div. 2 Dept. 1994)239n334
Rux v.Republic of Sudan, 495 F.Supp.2d 541 (E.D. Va. 2007)630n37
Ryals v.State Farm Mut. Ins. Co., 1P.3d 803 (Idaho 2000)497n17
S
Saac; United States v., 632 F.3d 1203 (11th Cir.), cert. denied, __U.S. __, 132 S.Ct. 139 (2011)633n56
Sabbatino v.Old Navy, Inc., 2003 WL 21448822 (N.Y.C. Civ. Ct. May 9, 2003)232n289
Safeco Ins. Co. v.Allen, 941P.2d 1365 (Kan. 1997)346n21
Table of Cases
751
St. Paul Mercury Ins. Co. v.Northern States Power Co., 2009 WL 2596074 (Minn. Ct. App. Aug. 25,
2009), review denied (Nov. 17, 2009)504, 504nn5860, 505nn6162
St. Paul Surplus Lines v.International Playtex, Inc., 777P.2d 1259 (Kan. 1989), cert. denied, 493 U.S.
1036 (1990)345n21, 513, 513n106, 514nn108109
Salavarria v.National Car Rental Sys., Inc., 705 So. 2d 809 (La. App.4 Cir. 1998)222n253
Salazar v.Islamic Republic of Iran, 370 F.Supp.2d 105 (D.D.C. 2005)630n37
Sale v.Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993)646n167
Saleba v.Schrand, 300 S.W.3d 177 (Ky. 2009)72n39
Salehpour v.Just ABuck Licensing, Inc., 2013 WL 5533113 (Ohio Ct. App. Oct. 7, 2013)461n161
Salsman v.Barden & Robeson Corp., 564 N.Y.S.2d 546 (N.Y. App. Div. 1990)232n292
Sanchez v.Boston Scientific Corp., 38 F.Supp.3d 727 (S.D.W. Va. 2014)262n475, 289, 289nn8183
Sanchez v.Brownsville Sports Ctr., Inc., 51 S.W.3d 643 (Tex. App.2001)296, 296n121,297
Sanchez; Commonwealth v., 716 A.2d 1221 (Pa. 1998)70, 70nn3233
Sanchez-Espinoza v.Reagan, 770 F.2d 202 (D.C. Cir. 1985)654n228
San Diego Gas & Elec. Co. v.Gilbert, 329P.3d 1264 (Mont. 2014)452nn100103,453
Sangamo Weston, Inc. v.National Sur. Corp., 414 S.E.2d 127 (S.C. 1992)345n18, 494,494n8
San Juan Dupont Plaza Hotel Fire Litig., In re, 745 F.Supp.79 (D.P.R. 1990)258n458
Sarei v.Rio Tinto, PLC, 456 F.3d 1069 (9th Cir. 2006)659n261
Sarei v.Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011), vacated, 133 S.Ct. 1995 (2013)660n275
Sarka v.Love, 2004 WL 816831 (Ohio App.), appeal not allowed, 812 N.E.2d 1289 (Ohio 2004)496n16
Saul v.His Creditors, 5 Mart. (n.s.) 569 (La. 1827)605n97
Saunders v.Saunders, 796 So.2 d 1253 (Fla. Dist. Ct. App.2001), review denied, 819 So. 2d 139 (Fla.
2002)624n205
Savage Arms, Inc. v.W. Auto Supply Co., 18P.3d 49 (Alaska 2001)289n84
SBKC Serv. Corp. v.111 Prospect Partners, LP, 1998 WL 436579 (10th Cir. 1998)152n27
Schaff v.Sun Line Cruises, Inc., 999 F.Supp.924 (S.D. Tex. 1998)441n41
Schechter v.Tauck Tours, Inc., 17 F.Supp.2d 255 (S.D.N.Y. 1998)231n288
Scheerer v.Hardees Food Sys., Inc., 92 F.3d 702 (8th Cir. 1996)231n288
Scherk v.Alberto-Culver Co., 417 U.S. 506 (1974)426, 426n486, 437n8, 439n32, 461, 461nn158
160, 474, 474nn248250, 476, 476n267
Schlemmer v.Firemans Fund Ins. Co., 730 S.W.2d 217 (Ark. 1987)171n155
Schlosser v.Allis-Chalmers Corp., 271 N.W.2d 879 (Wis. 1978)135nn4950, 171n156
Schmidt v.Driscoll Hotel, Inc., 82 N.W.2d 365 (Minn. 1957)239, 239n330, 239n334
Schmidt v.Duo-Fast, Inc., 1995 WL 422681 (E.D. Pa. July 11, 1995)301n149, 327n320
Schnall v.AT&T Wireless Servs., Inc., 259P.3d 129 (Wash. 2011)424n466
Schoeberle v.United States, 2000 WL 1868130 (N.D. Ill. Dec. 18, 2000)257nn453456
Schoenberg v.Exportadora de Sal, 930 F.2d 777 (9th Cir. 1991)152n28
Schoeps v.Andrew Lloyd Webber Art Found., 884 N.Y.S.2d 396 (N.Y. App. Div. 2009)90n144,91n146
Schubert v.Target Stores, Inc., 201 S.W.3d 917 (Ark. 2005)171n155, 222n253
Schuller v.Great-West Life & Annuity Ins. Co., 2005 WL 2259993 (N.D. Iowa Sept. 15, 2005)394n304,
400n341
Schultz v. Boy Scouts of Am., Inc., 480 N.E.2d 679 (N.Y. 1985) 156, 156nn4849, 156n51, 157,
157nn5253, 157n55, 158, 160, 161, 162, 162n82, 180, 180nn1418, 181n21, 185, 185n45, 196n91,
199, 199n113, 201n117, 225n265, 226,227
Schultz; United States v., 333 F.3d 393 (2d Cir. 2003), cert. denied, 540 U.S. 1106 (2004)586n30
Schwartz v.Consolidated Freightways Corp. of Del., 221 N.W.2d 665 (Minn. 1974)171n154
Schwartz v.Schwartz, 447P.2d 254 (Ariz. 1968)128n19, 151n24, 180n19,195n76
Scotia Prince Cruises Ltd. v. Pricewaterhousecoopers, 2005 WL 2708311 (Me. Super. Mar. 25,
2005)394n304, 400n341
Scott v.Ford Motor Co., 169 Cal. Rptr. 3d 823 (Cal. App.2014), as modified on denial of rehg (Apr. 23,
2014), review denied (July 9, 2014)264, 264n493, 265nn494500, 266nn501502, 287, 287n71,
288nn7280
752
Table of Cases
Scott v.Pilot Corp., 205 Wis. 2d 738, 557 N.W.2d 257 (Wis. App.1996)232n288
Scott, In re, 999 A.2d 229 (N.H. 2010)571n106
Scottsdale Ins. Co. v.Morrow Land Valley Co., LLC, 411 S.W.3d 184 (Ark. 2012)147n2
Seagrave v.Delta Airlines, Inc., 848 F.Supp.82 (E.D. La. 1994)546n148
Sealord Marine Co. v.American Bureau of Shipping, 220 F.Supp.2d 260 (S.D.N.Y. 2002)643n138
Sebastian, In re Adoption of, 879 N.Y.S.2d 677 (N.Y. Sur. 2009)564n63, 579, 579nn148150
S.E.C.v. See name of opposingparty
Sedona Corp. v.Ladenburg Thalmann & Co., 2005 WL 1902780 (S.D.N.Y. Aug. 9, 2005)395n304
SEI Societa Esplosivi Industriali SpA v.L-3 Fuzing & Ordnance Sys., Inc., 843 F.Supp.2d 509 (D. Del.
2012), appeal dismissed, No. 12-1754 (3d Cir. July 16, 2012)490n341, 490n344
Selle v.Pierce, 494 N.W.2d 634 (S.D. 1993)149n17, 150n19, 264n486
Sensient Colors Inc. v.Allstate Ins. Co., 939 A.2d 767 (N.J. 2008)505n64
Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So. 2d 954 (Miss.
1999)371n180
September 11th Litig., In re, 494 F.Supp.2d 232 (S.D.N.Y. 2007)266n506
Sequa Corp. v.Aetna Cas. & Sur. Co., 1995 WL 465192 (Del. Super. Ct. 1995)503n53
Sexton v.Ryder Truck Rental, Inc., 320 N.W.2d 843 (Mich. 1982)131n30, 195n78, 239n335
Shaffer v.Heitner, 433 U.S. 186 (1977)29,29n75
Shaheen v.Khan, 142 So. 3d 257 (La. Ct. App.2014)610, 610n123
Shamrock Realty Co. v.OBrien, 890 N.E.2d 863 (Mass. App. Ct. 2008)402n350, 540n111
Shapiro v.Barnea, 2006 WL 3780647 (D.N.J. Dec. 21, 2006)390n283
Shaw v.Rivers White Water Rafting Resort, 2002 WL 31748919 (E.D. Mich. Nov. 14, 2002)402n350
Shearson/American Express, Inc. v.McMahon, 482 U.S. 220 (1987)474n247
Sheet Metal Workers Intl Assn, Local 15 AFL-CIO v. Law Fabrication, LLC, 459 F. Supp. 2d 1236
(M.D. Fla. 2006)491n347
Sheldon v.PHH Corp., 135 F.3d 848 (2d Cir. 1998)190n66
Shell v.R.W. Sturge, Ltd., 55 F.3d 1227 (6th Cir. 1995)448n73
Shelley v.Trafalgar House Pub. Ltd. Co., 918 F.Supp.515 (D.P.R. 1996)395n304
Shell Oil Co. v.Hickman, 716 F.Supp.931 (W.D. Va. 1989)528n26
Shelnut v.Department of Human Servs., 9 So. 3d 359 (Miss. 2009), rehg denied (June 4, 2009)570n104
Sherrer v.Sherrer, 334 U.S. 343 (1948)21n27, 567, 567nn8788
Shewbrooks v.A.C. & S., Inc., 529 So. 2d 557 (Miss. 1988)527n25
Shibin; United States v., 722 F.3d 233 (4th Cir. 2013), cert. denied, __U.S. __, 134 S. Ct. 1935,
(2014)632n53
Shoen v.Shoen, 292P.3d 1224 (Colo. Ct. App.2012)90n140
Shope v.State Farm Ins. Co., 925P.2d 515 (N.M. 1996)345n16
Shuder v.McDonalds Corp., 859 F.2d 266 (3d Cir. 1988)206n148
Shull v.Dain, Kalman & Quail, Inc., 267 N.W.2d 517 (Neb. 1978)138n56
Sibbach v.Wilson & Co., 312 U.S. 1 (1941)40n153
Sico N.Am., Inc. v.Willis, No. 14-08-00158-CV, 2009 WL 3365856 (Tex. App. Sept. 10, 2009)306,
306nn184185
Sidarma Societa Italiana Di Armamento Spa, Venice v. Holt Marine Indus., Inc., 515 F. Supp. 1302
(S.D.N.Y.), aff d, 681 F.2d 802 (2d Cir. 1981)490n347
Sierra v.ABetterway Rent-A-Car, Inc., 863 So. 2d 358 (Fla. App.3 Dist. 2003)246n384
Silva v.Encyclopedia Britannica, Inc., 239 F.3d 385 (1st Cir. 2001)448n73
Silverman v.Rosewood Hotels & Resorts, Inc., 2004 WL 1823634 (S.D.N.Y. Aug. 16, 2004)236n317
Simon v.Foley, No. 07-CV-766S, 2011 WL 4954790 (W.D.N.Y. Oct. 18, 2011)449n81, 455, 455n125
Simon v.United States, 805 N.E.2d 798 (Ind. 2004)154nn3839, 155n40, 232n299,504n55
Simon II Litig., In re, 211 F.R.D. 86, 2002 WL 31323751 (E.D.N.Y. Sept. 19, 2002), vacated & remanded
on grounds not relevant here, 407 F.3d 125 (2d Cir. 2003)253n412
Simons v.Marriott Corp., 1993 WL 410457 (S.D.N.Y. Oct. 13, 1993)236n317
Simons v.Miami Beach First Natl Bank, 381 U.S. 81 (1965)569n94
Simons, State ex rel. v.Simons, 336P.3d 557 (Or. Ct. App.2014)576n132
Table of Cases
753
Simpson v.Socialist Peoples Libyan Arab Jamahiriya, 362 F.Supp.2d 168 (D.D.C. 2005)630n37
Sims v. New Falls Corp., 37 So. 3d 358 (Fla. Dist. Ct. App. 2010), rehg denied (July 7, 2010), review
denied, 2010 WL 4685414 (Fla. Nov. 16, 2010)390n283
Sinaltrainal v.Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009)660n275
Singer v.Lexington Ins. Co., 658 F.Supp.341 (N.D. Tex. 1986)436n2
Singh v. Carnival Corp., 550 Fed. Appx. 683 (11th Cir. 2013), cert. denied, 134 S. Ct. 2729
(2014)464n180
Singh v.Edwards Lifesciences Corp., 210P.3d 337 (Wash. Ct. App.2009)254, 254n425, 254n427,
305, 305n182, 306n183
Singh v.Pilot Gas Station, 2014 WL 1577816 (N.J. App. Div. Apr. 22, 2014), cert. denied, 218 N.J. 530
(2014)535n75
Sinnott v.Thompson, 32 A.3d 351 (Del. 2011)206n146
Siroonian v.Textron, Inc., 844 F.2d 289 (5th Cir. 1988)528n26
Skipper v.Prince Georges Cnty., 637 F.Supp.638 (D.D.C. 1986)9n35, 209n177
Skyrme v.Diamond Offshore (U.S.A.) Inc., 1994 WL 320928 (E.D. La. 1994)546, 546nn146148
Small v.United States, 544 U.S. 385 (2005)83, 83n106, 83nn108111
Smith v.Alza Corp., 400 N.J. Super. 529, 948 A.2d 686 (N.J. Super. App. Div. 2008)254, 254n428,
255nn429431, 276n13, 306n192, 307n194
Smith v.Anderson, 821 So. 2d 323 (Fla. Dist. Ct. App.2002)555n10
Smith v.DaimlerChrysler Corp., 2002 WL 31814534 (Del. Super. Nov. 20, 2002)290, 290nn9394
Smith v.EMC Corp., 393 F.3d 590 (5th Cir. 2004)401n346
Smith v.Florida Gulf Airlines, Inc., 1996 WL 156859 (E.D. La. Apr. 2, 1996)232n288
Smith v.Jem Group, Inc., 737 F.3d 636 (9th Cir. 2013)469, 469n221
Smith v.Odeco (UK), Inc., 615 So. 2d 407 (La. Ct. App.), writ denied, 618 So. 2d 412 (La. 1993)545,
545n141, 545n143
Smith v.Smith, 1994 WL 149445 (Minn. Ct. App. Apr. 19, 1994)575, 575n128, 576n129
Smith v.State Farm Mut. Auto. Ins. Co., 952 So. 2d 342 (Ala. 2006)496n17
Smith v.United States, 507 U.S. 197 (1993)646n167, 650, 650n198
Smith v.Walter C.Best, Inc., 756 F.Supp.878 (W.D. Pa. 1990)276n10
Smith ex rel. Smith v.Islamic Emirate of Afghanistan, 262 F.Supp.2d 217 (S.D.N.Y. 2003)630n37
Smither v.Asset Acceptance, LLC, 919 N.E.2d 1153 (Ind. Ct. App.2010)402n350
Smith, Valentino & Smith, Inc. v.Superior Court, 551P.2d 1206 (Cal. 1976)397n328
Soar v.National Football League Players Assn, 550 F.2d 1287 (1st Cir. 1977)142n65
Softpath Sys., Inc. v. Business Intelligence Solutions, Inc., 2013 WL 68717 (N.J. Super. Ct. App. Div.
Jan. 8, 2013)416n416
Solotko v.LegalZoom.com, Inc., 2013 WL 3724770 (Tex. App. July 11, 2013), review denied (Dec. 13,
2013)423n463
Sommers v.13300 Brandon Corp., 712 F.Supp.702 (N.D. Ill. 1989)244n372
Sosa v. Alvarez-
Machain, 542 U.S. 692 (2004) 650, 650n192, 651, 651n199, 651nn205
207,
652nn208215, 653, 658n259, 659n261, 659nn263269, 660nn270271
South African Apartheid Litig., In re, 2004 WL 2722204 (S.D.N.Y. 2004)660nn272273
Southeast Floating Docks, Inc. v.Auto-Owners Ins. Co., 82 So.3d 73 (Fla. 2012)401n346
Southwest Supermarkets, LLC, In re, 315 B.R. 565 (Bankr. D.Ariz. 2004)540n107
Specialty Surfaces Intl, Inc. v.Continental Cas. Co., 609 F.3d 223 (3d Cir. 2010)503n53
Spector v.Norwegian Cruise Line, 356 F.3d 641 (5th Cir. 2004), revd, 545 U.S. 119 (2005)636n81,
638, 638n103, 639nn109110, 640nn111119, 641nn120123, 643, 669, 669n344,670
Spelar; United States v., 338 U.S. 217 (1949)650, 650n197, 652n210,653
Spinozzi v.ITT Sheraton Corp., 174 F.3d 842 (7th Cir. 1999)180n19, 183nn3637, 231n288, 235,
235nn309314
Spradlin v.Lear Siegler Mgmt. Servs. Co., 926 F.2d 865 (9th Cir. 1991)448n73
Spragins v.Louise Plantation, Inc., 391 So. 2d 97 (Miss. 1980)137n54,151n26
Springfield Oil Servs., Inc. v.Costello, 941 F.Supp.45 (E.D. Pa. 1996)402n350
SRH, Inc. v.IFC Credit Corp., 619 S.E.2d 744 (Ga. Ct. App.2005)462n165
754
Table of Cases
SS Lotus (France v.Turkey), P.C.I.J., Ser. A.No. 10 (1927)644n151

Stacy v.St. Charles Custom Kitchens of Memphis, Inc., 683 S.W.2d 225 (Ark. 1985)147n2
Stagecoach Transp., Inc. v.Shadow, Inc., 741 N.E.2d 862 (Mass. App. Ct. 2001)396, 396nn323324,
397n325
Stallworth v.Hospital Rentals, Inc., 515 So. 2d 413 (Fla. App.1 Dist. 1987)240n335
Stamm v.Barclays Bank of N.Y., 153 F.3d 30 (2d Cir. 1998)448n73
Standal v.Armstrong Cork Co., 356 N.W.2d 380 (Minn. App.1984)307n196
Standard Fire Ins. Co. v.Ford Motor Co., 723 F.3d 690 (6th Cir. 2013)315, 315n247, 316, 316nn255
259, 317n260
Standard Leasing Corp. v. Schmidt Aviation, Inc., 576 S.W.2d 181 (Ark. 1979) 137n52,
147n2,154n36
Stanley v.Cottrell, Inc., No. 4:10CV1505 HEA, 2013 WL 466232 (E.D. Mo. Feb. 7, 2013)295n118
Starry v.Central Dakota Printing, Inc., 530 N.W.2d 323 (N.D. 1995)174n170
State v. See name of opposingparty
State ex rel. See name of relatedparty
State Est. for Agric. Prod. Trading v.M/V Wesermunde, 838 F.2d 1576 (11th Cir.), cert. denied, 488 U.S.
916 (1988)476n263
State Farm Mut. Auto. Ins. Co. v.Baker, 797P.2d 168 (Kan. Ct. App.1990)495n12
State Farm Mut. Auto. Ins. Co. v.Ballard, 54P.3d 537 (N.M. 2002)496n16
State Farm Mut. Auto. Ins. Co. v.Campbell, 538 U.S. 408 (2003)250n405
State Farm Mut. Auto. Ins. Co. v.Estate of Simmons, 417 A.2d 488 (N.J. 1980)137n55
State Farm Mut. Auto. Ins. Co. v.Gillette, 641 N.W.2d 662 (Wis. 2002)171n152, 171n157,496n17
State Farm Mut. Auto Ins. Co. v.Hodgkiss-Warrick, 413 S.W.3d 875 (Ky. 2013)497n21
State Farm Mut. Auto. Ins. Co. v.Koshy, 995 A.2d 651 (Me. 2010)219n242
State Farm Mut. Auto. Ins. Co. v.Roach, 945 So. 2d 1160 (Fla. 2006)496n17
Stathis v.National Car Rental Sys., Inc., 109 F.Supp.2d 55 (D. Mass. 2000)240n335
Stawski Distrib. Co. v.Browary Zywiec S.A., 349 F.3d 1023 (7th Cir. 2003), rehg denied (Dec. 11, 2003),
cert. denied, 541 U.S. 1010 (2004)426n482, 426n483
Stawski Distrib. Co. v.Browary Zywiec S.A., 126 Fed. Appx. 308 (7th Cir. 2005)426n487
Stephen v.Stephen, 284P.158 (Ariz. 1930)606n101
Stern v.Islamic Republic of Iran, 271 F.Supp.2d 286 (D.D.C. 2003)630n37
Stevens v.Shields, 499 N.Y.S.2d 351 (N.Y. Sup. Ct. 1986)212n198, 217, 217n234
Stewart Org., Inc. v.Ricoh Corp., 487 U.S. 22 (1988)440, 440nn3435
Stivers v.Ellington, 140 S.W.3d 599 (Ky. Ct. App.2004)527n20
Stockmens Livestock Exch. v. Thompson, 520 N.W.2d 255 (S.D. 1994) 138n56, 149n17,
150n19,151n26
Stokes; United States v., 726 F.3d 880 (7th Cir.), cert. denied, __U.S. __, 134 S.Ct. 713 (2013)629n30
Stoll v.Gottlieb, 305 U.S. 165 (1938)22n31
Stone St. Servs., Inc. v. Daniels, 2000 WL 1909373 (E.D. Pa. Dec. 29, 2000) 376, 376nn199202,
425, 425n474
Stonewall Surplus Lines Ins. Co. v. Johnson Controls, Inc., 17 Cal. Rptr. 2d 713 (Cal. App.,
1993)517nn129133, 518n134
Stonhard, Inc. v.Carolina Flooring Specialists, Inc., 621 S.E.2d 352 (S.C. 2005), rehg denied (Nov. 17,
2005)416n416
Stoot v.Fluor Drilling Servs., Inc., 851 F.2d 1514 (5th Cir. 1988)387n267
Storey v. Leonas, 904 N.E.2d 229 (Ind. Ct. App. 2009), rehg denied (June 10, 2009), transfer denied
(Sept. 24, 2009)89n135
Strassheim v.Daily, 221 U.S. 280 (1911)243n358, 645, 645nn154155
Strategic Mktg. & Commcns, Inc. v.Kmart Corp., 41 F.Supp.2d 268 (S.D.N.Y. 1998)440n40
Strathearn S.S. Co. v.Dillon, 252 U.S. 348 (1920)633, 633nn6163,634
Strawbridge v.Curtiss, 7 U.S. (3 Cranch) 267 (1806)38n141
Strevell; United States v., 185 Fed. Appx. 841 (11th Cir.), cert. denied, 549 U.S. 1065, 127 S. Ct. 692
(2006)629, 629nn2930
Table of Cases
755
Stroganoff-Scherbatoff v.Weldon, 420 F.Supp.18 (S.D.N.Y. 1976)586n30

Stroitelstvo Bulgaria Ltd. v.Bulgarian-American Enter. Fund, 589 F.3d 417 (7th Cir. 2009)91n146
Stromberg v.Marriott Intl, Inc., 474 F.Supp.2d 57 (D.D.C. 2007), aff d, 256 Fed. Appx. 359 (D.C. Cir.
Nov. 14, 2007)231n288, 236n317
Struebin v.Iowa, 322 N.W.2d 84 (Iowa 1982)209n177
Stupak v.Hoffman-La Roche, Inc., 315 F.Supp.2d 970 (E.D. Wis. 2004)526n20
Sturiano v.Brooks, 523 So. 2d 1126 (Fla. 1988)141n61,344n12
Stutsman v. Kaiser Found. Health Plan of Mid-
Atlantic States, Inc., 546 A.2d 367 (D.C.
App.1988)78n70, 217, 217n233
Succession of Hendrix, In re, 990 So. 2d 742 (La. Ct. App.2008), rehg denied (Sept. 22, 2008)555n10
Sullivan v.Oracle Corp., 254P.3d 237 (Cal. 2011)214n213
Sunbelt Veterinary Supply, Inc. v. International Bus. Sys. U.S., Inc., 985 F. Supp. 1352 (M.D. Ala.
1997)395n304
Sun Oil Co. v.Wortman, 486 U.S. 717 (1988)27, 27n66, 28nn6869, 548, 548n155, 549, 549nn157
162, 550, 551, 551n179, 552n180,599n80
Sunstar, Inc. v.Alberto-Culver Co., 586 F.3d 487 (7th Cir. 2009)90n142,91n147
Superior Ct. of N.H.v.Piper, 470 U.S. 274 (1985)30n84, 31n85, 31n87,31n89
Surette v.Islamic Republic of Iran, 231 F.Supp.2d 260 (D.D.C. 2002)630n37
Surnamer v.Ellstrom, 2012 WL 2864412 (Ariz. Ct. App. July 12, 2012)564nn6667, 565nn6869
Sussman v.Sussman, 687 S.E.2d 644 (Ga. App.2009)570n104
Sutherland v.Islamic Republic of Iran, 151 F.Supp.2d 27 (D.D.C. 2001)268n512
Sutherland v.Kennington Truck Serv., Ltd., 562 N.W.2d 466 (Mich. 1997)77nn6869, 150n22, 169,
169n142, 169nn144145, 170, 170nn146149,535n80
Sutton v.Hollywood Video Entmt Corp., 181 F.Supp.2d 504 (D. Md. 2002)399, 399nn337340
Svege v.Mercedes Benz Credit Corp., 182 F.Supp.2d 226 (D. Conn. 2002)180n19
Swanson v.Image Bank, Inc., 77P.3d 439 (Ariz. 2003)370n176
Swenson v.T-Mobile USA, Inc., 415 F.Supp.2d 1101 (S.D. Cal. 2006)421, 421nn447449, 422n450
Swetnam; United States v., Indictment CR 88-914 RG (C.D. Cal. Nov. 1988)586n30
Swift v.Tyson, 41 U.S. (16 Pet.) 1 (1842)39,39n144
Szymczyk v.Signs Now Corp., 606 S.E.2d 728 (N.C. Ct. App.2005)454n116
T
Talley v.Novartis Pharms. Corp., 2011 WL 2559974 (D.N.C. June 28, 2011)262n474,282n35
Tang Chung Wah v.Grant Thornton Intl Ltd., No. 1131808-U, 2014 WL 4249877 (Ill. App. Aug. 27,
2014)484n304
Tanges v. Heidelberg N. Am., Inc., 93 N.Y.2d 48, 710 N.E.2d 250 (1999) 301n149, 326n319,
528n29
Taylor v.1-800-Got-Junk?, LLC, 387 Fed. Appx. 727 (9th Cir. 2010)431, 431nn515517,432
Taylor v.Bullock, 279 A.2d 585 (N.H. 1971)170n151, 197n98, 197n104
Taylor v.Cranberry Iron & Coal Co., 94 N.C. 525 (1886)528n26
Taylor v.E. Connection Operating, Inc. 988 N.E.2d 408 (Mass. 2013)416n416
Taylor v.Massachusetts Flora Realty, Inc., 840 A.2d 1126 (R.I. 2004)148n7, 171n153, 231n288
Taylor v.Mooney Aircraft Corp., 265 Fed. Appx. 87 (3d Cir. 2008)327n323
Taylor v.Taylor, 2011 WL 1734077 (La. Ct. App.3d Cir. May 4, 2011)576, 576nn130131
T-Bill Option Club v.Brown & Co. Secs. Corp., 23 F.3d 410, 1994 WL 201104 (7th Cir. 1994)394n304
Telemedia Partners Worldwide, Ltd. v.Hamelin Ltd., 1996 WL 41818 (S.D.N.Y. 1996)395n304
Telenor Mobile Commcns AS v.Storm LLC, 524 F.Supp.2d 332 (S.D.N.Y. 2007), aff d, 584 F.3d 396
(2d Cir. 2009)490n341, 490n344
Telular Corp. v.Mentor Graphics Corp., 282 F.Supp.2d 869 (N.D. Ill. 2003)527nn2223
Tenas v.Progressive Preferred Ins. Co., 197P.3d 990 (Mont. 2008)496n17
Tennessee Coal, Iron & R.R. Co. v.George, 233 U.S. 354 (1914)28n71
Tesco Corp. (US) v.Steadfast Ins. Co., 2014 WL 4257737 (Tex. App.2014)515, 515nn117118
756
Table of Cases
Tesco Corp. (US) v.Steadfast Ins. Co., __S.W.3d __, 2015 WL 456466 (Tex. App. Hous., 1 Dist. Feb.
3, 2015)515n118
TH Agric. & Nutrition, LLC v.Ace European Grp. Ltd., 416 F.Supp.2d 1054 (D. Kan. 2006), aff d, 488
F.3d 1282 (10th Cir. 2007)449n81, 451, 451n93, 455, 455nn120121
Thera-
Kinetics, Inc. v. Managed Home Recovery, Inc., 1997 WL 610305 (N.D. Ill. Sept. 29,
1997)395n304
Thomas v.Carnival Corp., 573 F.3d 1113 (11th Cir. 2009)484n308
Thomas v.Fidelity Brokerage Servs., Inc. 977 F.Supp.791 (W.D. La. 1998)394n304
Thomas v.Washington Gas Light Co., 448 U.S. 261 (1980)22n29, 563nn5758
Thompson v.International Bus. Mach. Corp., 862 F.Supp.79 (S.D.N.Y. 1994)231n287
Thompson v.Ketcham, 8 Johns. 189 (N.Y. 1811)364n135
Thompson v.Reinco, Inc., 2004 WL 1426971 (Del. Super. June 15, 2004)324n310
Thompson Tree & Spraying Serv., Inc. v.White-Spunner Const., Inc., 68 So. 3d 1142 (La. Ct. App.),
writ denied, 71 So. 3d 290 (La. 2011)448n74
Thornton v.Cessna Aircraft Co., 886 F.2d 85 (4th Cir. 1989)327n321
Thornton v.Sea Quest, Inc., 999 F.Supp.1219 (N.D. Ind. 1998)324n310
Thorntons Estate, In re, 33P.2d 1 (Cal. 1934)606n101
Three M Enters., Inc. v. Texas D.A.R. Enters., Inc., 368 F. Supp. 2d 450 (D. Md. 2005) 426n482,
427n492
Threlkeld v.Worsham, 785 S.W.2d 249 (Ark. App.1990)147n2
Ticknor v.Choice Hotels Intl, Inc., 265 F.3d 931 (9th Cir. 2001)427n494
Tidymans Mgmt. Servs. Inc. v.Davis, 330P.3d 1139 (Mont. 2014)348,348n37
Timberlane Lumber Co. v.Bank of Am. N.T. & S.A., 549 F.2d 597 (9th Cir. 1976)645, 645nn158
160, 646n161
Tissue Transplant Tech., Ltd v.Osteotech, Inc., 2005 WL 958407 (W.D. Tex. Apr. 26, 2005)394n304,
400n341
Tkaczevski v.Ryder Truck Rental, Inc., 22 F.Supp.2d 169 (S.D.N.Y. 1998)231n286
Tobar v.United States, 639 F.3d 1191 (9th Cir. 2011)654n228
Tomlin v.Boeing Co., 650 F.2d 1065 (9th Cir. 1981)535n77
Tooker v.Lopez, 249 N.E.2d 394 (N.Y. 1969)155n44, 155n46,195n75
Toomer v.Witsell, 334 U.S. 385 (1948)31n91
Topp, Inc. v.Uniden Am. Corp., 483 F.Supp.2d 1187 (S.D. Fla. 2007)232n290
Toriumi v. Ritz-Carlton Hotel Co., LLC, 2006 WL 3095753 (N.D. Ill. Oct. 27, 2006) 231n288,
236n317
Torres v.State, 894P.2d 386 (N.M. 1995)82n96,142n69
Torrington Co. v.Stutzman, 46 S.W.3d 829 (Tex. 2000)307n195
Townes ex rel. Estate of Townes v. Cove Haven, Inc., 2004 WL 2403467 (S.D.N.Y. Oct. 27,
2004)232n288, 257n456
Townsend v.Boclair, No. 4003463, 2007 WL 126933 (Conn. Super. Jan. 5, 2007)246n384
Townsend v.Sears, Roebuck & Co., 879 N.E.2d 893 (Ill. 2007)255, 255n432, 255nn434438, 310,
310nn209210, 310n213, 311nn214217
Townsend ex rel. Townsend v.Sears, Roebuck & Co., 858 N.E.2d 552 (Ill. App. Ct. 2006)255n439,
256n440, 311nn218219
TPLC, Inc. v.United Natl Ins. Co., 44 F.3d 1484 (10th Cir. 1995)510n91
Trahan v.E.R. Squibb & Sons, Inc., 567 F.Supp.505 (M.D. Tenn. 1983)276n9
Trapp v.4-10 Inv. Corp., 424 F.2d 1261 (8th Cir. 1970)239n334
Travelers Cas. & Sur. Co. v.Insurance Co. of N.Am., 609 F.3d 143 (3d Cir. 2010)401n348
Travelers Indem. Co. v.Lake, 594 A.2d 38 (Del. 1991)131n33, 151n24,195n78
Travelers Indem. Co. of Ill. v. Wolverine (Mass.) Corp., 2005 WL 3334319 (D. Mass. Dec. 8,
2005)395n304
Travelers Ins. Co. v.American Fid. & Cas. Co., 164 F.Supp.393 (D. Minn. 1958)495n13
Travelers Ins. Co. v.Workmens Comp. Appeals Bd., 434P.2d 992 (Cal. 1967)135n48,163n89
Table of Cases
757
Travelers Prop. Cas. Co. of Am. v.Flexsteel Indus., Inc., 847 N.W.2d 237, 2014 WL 1234248 (Iowa Ct.
App.2014)505n64
Travelers Prop. Cas. Co. of Am. v.Moore, 763 F.3d 1265 (11th Cir. 2014)497n18
Travelers Prop. Cas. Co. of Am. v.Saint-Gobain Tech. Fabrics Can. Ltd., 474 F.Supp.2d 1075 (D. Minn.
2007)350n51
Tribe v.Borough of Sayre, 562 F.Supp.419 (W.D.N.Y. 1983)9n35
Tri-State Hosp. Supply Corp. v.United States, 2007 WL 2007587 (D.D.C. July 6, 2007)242n356
Troxel v.A.I.duPont Inst., 636 A.2d 1179 (Pa. Super.), appeal denied, 647 A.2d 903 (Pa. 1994)180n19,
220, 220nn247249, 221, 221n250
Trzecki v.Gruenewald, 532 S.W.2d 209 (Mo. 1976)527n20
Tshiani v.Tshiani, 56 A.3d 311 (Md. App.2012)555n12
Tubos de Acero de Mexico, S.A.v.American Intl Inv. Corp., Inc., 292 F.3d 471 (5th Cir. 2002)266n506
Tucci v.Club Mediterrane, S.A., 107 Cal. Rptr. 2d 401 (Cal. App.2001)206n151
Tucker v.Cochran Firm-Criminal Def. Birmingham LLC, 341P.3d 673 (Okla. 2014)461n163
Tucker v.Scott, 1997 WL 151509 (S.D.N.Y. Apr. 1, 1997)395n304
Tune v.Philip Morris, Inc., 766 So. 2d 350 (Fla. Dist. Ct. App.2000)68n15, 275n7,289n84
Turicentro, S.A.v.American Airlines Inc., 303 F.3d 293 (3d Cir. 2002)648n183
Turkey, Republic of v.Metropolitan Museum of Art, 762 F.Supp.44 (S.D.N.Y. 1990)586n30
Turkey, Republic of v.OKS Partners, 146 F.R.D. 24 (D. Mass. 1993)586n30
Turner v.Liberty Mut. Ins. Co., 105 F.Supp.723 (E.D.N.C. 1952)495n13
Turtur v.Rothschild Registry Intl, Inc., 26 F.3d 304 (2d Cir. 1994)397n326, 400n342, 405n373
Twinlab Corp. v.Paulson, 724 N.Y.S.2d 496 (N.Y. App. Div. 2001)397n326, 400n343
Twohy v.First Natl. Bank of Chi., 758 F.2d 1185 (7th Cir. 1985)397n326
Tykarsky; United States v., 446 F.3d 458 (3d Cir.), cert. denied, 556 U.S. 1175 (2008)629n30
U
Underhill v.Hernandez, 168 U.S. 250 (1897)35, 35n120,35n121
Ungar v.Palestine Liberation Org., 402 F.3d 274 (1st Cir. 2005)630n37
Ungar, Estate of v.Palestinian Auth., 228 F.Supp.2d 40 (D.R.I. 2001)630n37
Unifund CCR Partners v.Deboer, 277P.3d 562 (Or. Ct. App.2012), review denied, 352 Or. 378 (Sept.
13, 2012)532n52
Unifund CCR Partners v.Porras, 275P.3d 992 (Or. Ct. App.2012), review denied, 352 Or. 378 (Sept.
13, 2012)532n52
Unifund CCR Partners v.Sunde, 260P.3d 915 (Wash. Ct. App.2011)532n52, 534,534n71
Union Ins. Soc. of Canton, Ltd. v.S.S. Elikon, 642 F.2d 721 (4th Cir. 1981)476n261
Union Oil Co. of Cal. v. John Brown E & C, 1994 WL 535108 (N.D. Ill. Sept. 30, 1994) 396,
396nn314316, 406n373
Unisys Corp. v.Insurance Co. of N.Am., 712 A.2d 649 (N.J. 1998)173n166, 505n64, 506, 506n70,
507, 507n76,508
United Farm Family Mut. Ins. Co. v.Frye, 887 N.E.2d 783 (Ill. App.), appeal denied, 897 N.E.2d 264
(Ill. 2008)496n17
United States v. See name of opposingparty
United States Gypsum Co. v.Admiral Ins. Co., 643 N.E.2d 1226 (1994), rehg denied (Ill. App.1995),
appeal denied, 161 Ill. 2d 542 (Ill. 1995)517n128
United Vaccines, Inc. v.Diamond Animal Health, Inc., 409 F.Supp.2d 1083 (W.D. Wis. 2006)394n304
Unitrin Direct/Warner Ins. Co. v.Brand, 993 N.Y.S.2d 37 (App. Div. 2014)497n18
Uravic v.F. Jarka Co., 282 U.S. 234 (1931)641, 641nn125126
Urhammer v.Olson, 159 N.W.2d 688 (Wis. 1968)135n49
U.S. Fid. & Guar. Co. v.Louis A.Roser Co., 585 F.2d 932 (8th Cir. 1978)495n13
U.S. Fid. & Guar. Co. v.Preston, 26 S.W.3d 145 (Ky. 2000)497n17
U.S. Fid. & Guar. Co. v.S.B. Phillips Co., 359 F.Supp.2d 189 (D. Conn. 2005)394n304, 400n341
758
Table of Cases
V
Valero Mktg. & Supply Co. v.Greeni Oy, 373 F.Supp.2d 475 (D.N.J. 2005)350n51
Valley Juice Ltd., Inc. v.Evian Waters of France, Inc., 87 F.3d 604 (2d Cir. 1996)395n304
Valore v.Islamic Republic of Iran, 478 F.Supp.2d 101 (D.D.C. 2007)630n37
Valore v.Islamic Republic of Iran, 700 F.Supp.2d 52 (D.D.C. 2010)268n512
Value Rent-A-Car, Inc. v.Harbert, 720 So. 2d 552 (Fla. App.4 Dist. 1998)240n335
Vanderbilt v.Vanderbilt, 354 U.S. 416 (1957)569n94
Van Dusen v.Barrack, 376 U.S. 612 (1964)550, 550n168,551
Van Kipnis v.Van Kipnis, 900 N.E.2d 977 (N.Y. 2008)609nn118119, 610nn120122
Vass v.Volvo Trucks N.Am., Inc., 315 F.Supp.2d 815 (S.D. W.Va. 2004)82n95
Veasley v.CRST Intl, Inc., 553 N.W.2d 896 (Iowa 1996)149n18, 180n19, 239, 240nn336338
Veazey v.Doremus, 510 A.2d 1187 (N.J. 1986)196n90
Venturini v.Worldwide Marble & Granite Corp., 1995 WL 606281 (S.D.N.Y. Oct. 13, 1995)206n152
Verma v.Verma, 903 N.E.2d 343 (Ohio Ct. App.2008)555n11
Vestal v.Shiley Inc., 1997 WL 910373 (C.D. Cal. Nov. 17, 1997)303n167, 314n242
VFD Consulting, Inc. v.21st Servs., 425 F.Supp.2d 1037 (N.D. Cal. 2006)395n304, 397n326
Viacom, Inc. v.Transit Cas. Co., 138 S.W.3d 723 (Mo. 2004)510n91
Vicknair v.Phelps Dodge Indus., Inc., 794 N.W.2d 746 (N.D. 2011)533,533n66
Victoria v.Smythe, 703 A.2d 619 (R.I. 1997)171n153
Vigen Constr. Co. v.Millers Nat. Ins. Co., 436 N.W.2d 254 (N.D. 1989)504n53
Vilar; United States v., 729 F.3d 62 (2d Cir. 2013), cert. denied, 2014 WL 1669332 (May 27, 2014)657,
657nn252253, 658, 658nn254256, 658n258
Villaman v.Schee, 15 F.3d 1095 (9th Cir. 1994)215, 215n216, 257, 257nn448449
Vimar Seguros y Reaseguros, S.A.v.M/V Sky Reefer, 515 U.S. 528 (1995)439n33, 475, 475n258,
476nn264265, 477nn269277, 484, 484nn306307, 486, 648n181
Vivendi Universal, S.A. Sec. Litig., In re, 381 F.Supp.2d 158 (S.D.N.Y. 2003)242n355
Vivendi Universal, S.A. Sec. Litig., In re, 242 F.R.D. 76 (S.D.N.Y. 2007)91n146
Volt Info. Scis., Inc. v.Board of Trs., 489 U.S. 468 (1989)483, 483n303
von Saher v.Norton Simon Museum of Art at Pasadena, 578 F.3d 1016 (9th Cir. 2009), amended, 592
F.3d 954 (9th Cir. 2010), cert. denied, 131 S.Ct. 3055 (2011)34n114
von Saher v.Norton Simon Museum of Art at Pasadena, 754 F.3d 712 (9th Cir. 2014), cert. denied, __
U.S. __, 135 S.Ct. 1158 (2015)586n30
W
Waddoups v.Amalgamated Sugar Co., 54P.3d 1054 (Utah 2002)213, 213n200
Wagner v.Islamic Republic of Iran, 172 F.Supp.2d 128 (D.D.C. 2001)152n28, 268n512,630n37
Walker v.Armco Steel Corp., 446 U.S. 740 (1980)40n153
Wallis v.Mrs. Smiths Pie Co., 550 S.W.2d 453 (Ark. 1977)130n25, 171n155
Walls v.General Motors, 906 F.2d 143 (5th Cir. 1990)309n203
Walls v.Quick & Reilly, Inc., 824 So. 2d 1016 (Fla. Dist. Ct. App.2002)401n346
Wal-Mart Stores, Inc. v.Manning, 788 So. 2d 116 (Ala. 2000)232n288
Walters v.Maren Engg Corp., Inc., 617 N.E.2d 170 (Ill. App.1993)309n204, 328n331
Walton v.Arabian Am. Oil Co., 233 F.2d 541 (2d Cir.), cert. denied, 352 U.S. 872 (1956)88n132
Wamsley v.Nodak Mut. Ins. Co., 178P.3d 102 (Mont. 2008)496n17
Wang v.Marziani, 885 F.Supp.74 (S.D.N.Y. 1995)257, 257nn450452
Ward v.Nationwide Assurance Co., No. 2012-CA-000809-MR, 2014 WL 7339238 (Ky. Ct. App. Dec. 24
2014), rehg denied (Feb. 12, 2015)497n19
Warfarin Sodium Antitrust Litig., In re, 212 F.R.D. 231 (D. Del. 2002)242n355
Warriner v.Stanton, 475 F.3d 497 (3d Cir. 2007)206n150, 207, 207nn160164
Washburn v.Soper, 319 F.3d 338 (8th Cir.), cert. denied, 540 U.S. 875, 124 S.Ct. 221 (2003)540n110
Table of Cases
759
Washburn v. Soper, 319 F.3d 338 (8th Cir.), cert. denied, __U.S. __, 124 S. Ct. 221 (2003) 541,
541nn123126, 543,544
Washington v.Brown, 940P.2d 546 (Wash. 1997), cert. denied, 503 U.S. 1007 (1998)70n33
Washington Mut. Bank v.Superior Court, 15P.3d 1071 (Cal. 2001)135n50, 163n93,346n28
Waterside Ocean Nav. Co. v.International Nav. Ltd., 737 F.2d 150 (2d Cir. 1984)489n341
Watson v.Employers Liab. Assur. Corp. Ltd., 348 U.S. 66 (1954)99n34
Wayman v.Southard, 23 U.S. (10 Wheat.) 1 (1825)362n119, 364n135
W.C. Richards Co. v.Hartford Indem. Co., 682 N.E.2d 220 (Ill. App.1997)505n64
Weatherby Assocs., Inc. v.Ballack, 783 So. 2d 1138 (Fla. Dist. Ct. App.2001)401n347
Weil v.Morgan Stanley DW, Inc., 877 A.2d 1024 (Del. Ch.), aff d, 894 A.2d 407 (Del. 2005)397n326
Weingarten; United States v., 713 F.3d 704 (2d Cir. 2013)629n30
Weinstein v.Islamic Republic of Iran, 184 F.Supp.2d 13 (D.D.C. 2002)268n512
Weinstein v.Islamic Republic of Iran, 274 F.Supp.2d 53 (D.D.C. 2003)630n37
Weiss v.Assicurazioni Generali, S.p.A., 131 S.Ct. 287 (U.S. 2010)34n114
Weiss v.Mercedes-Benz of N.Am., Inc., 899 F.Supp.1297 (D.N.J. 1995)242n355
Weitz Co., LLC v.Travelers Cas. & Surety Co., 266 F.Supp.2d 984 (S.D. Iowa 2003)542n126
Wells v.Simonds Abrasive Co., 345 U.S. 514 (1953)24n41,28n67
Wendelken v.Superior Court in & for Pima Cnty., 671P.2d 896 (Ariz. 1983)195n77
Wendling v.Chambliss, 36 So. 3d 333 (La. App.1st Cir. 2010)496n17
Wendt v.Osceola Cnty., Iowa, 289 N.W.2d 67 (Minn. 1979)209n177
Wenke v.Gehl Co., 682 N.W.2d 405 (Wis. 2004)535n82
Werner v.Werner, 526P.2d 370 (Wash. 1974)130n23,151n24
Wessling v.Paris, 417 S.W.2d 259 (Ky. 1967)128n19,195n75
Western Dermatology Consultants, P.C.v.VitalWorks, Inc., 78 A.3d 167 (Conn. App.), cert. granted, 81
A.3d 1182 (Conn. 2013)212n199
Western Group Nurseries, Inc. v.Ergas, 211 F.Supp.2d 1362 (S.D. Fla. 2002)402n350
Western United Nurseries, Inc., In re, 338 Fed. Appx. 706 (9th Cir. 2009)402n351
Western United Nurseries, Inc. v.Estate of Adams, In re, 191 B.R. 820 (Bankr. D.Ariz. 1996)402n350
Western Video Collectors v.Mercantile Bank of Kan., 935P.2d 237 (Kan. App.1997)402n350
W.H. Barber Co. v.Hughes, 63 N.E.2d 417 (Ind. 1945)61n73, 133, 133nn3940, 154nn3637
Whelchel, In re Marriage of, 476 N.W.2d 104 (Iowa Ct. App.1991)609n116
White v.Crown Equip. Corp., 827 N.E.2d 859 (Ohio App.2005)309n203
White v.Smith, 398 F.Supp.130 (D.N.J. 1975)239n335
Whitney v.Guys, Inc., 700 F.3d 1118 (8th Cir. 2012)531n52, 533,534n70
Widow of Fornaris v.American Sur. Co. of N.Y., 93P.R. 28 (P.R. 1966)154n35,195n77
Wilcox v.Wilcox, 133 N.W.2d 408 (Wis. 1965)128n20, 163n88,194n75
Wilde, In re, 68 A.3d 749 (D.C. 2013)83n111
Wilkeson v.State Farm Mut. Auto. Ins. Co., 329P.3d 749 (N.M. Ct. App.), cert. denied, 328P.3d 1188
(N.M. 2014)498, 498nn2324
Wilko v.Swan, 346 U.S. 427 (1953)490n343
Willey v.Bracken, 228 W.Va. 244 (W. Va. 2010)142n69
Williams v.Deutsche Bank Secs., Inc., 2005 WL 1414435 (S.D.N.Y. June 13, 2005)394n304, 400n341
Williams v.Jeffs, 57P.3d 232 (Utah Ct. App.2002)184n39, 185nn4344
Williams v.North Carolina, 317 U.S. 287 (1942)556n17, 566, 566n82, 567, 567nn8386,568
Williams v.Novartis Pharms. Corp., 15 F.Supp.3d 761 (S.D. Ohio 2014)262n474,282n36
Williams v.Rawlings Truck Line, Inc., 357 F.2d 581 (D.C. Cir. 1965)222n253
Williams v.State, 885P.2d 845 (Wash. Ct. App.1994)533, 533n59, 533nn6164
Williams v. State Farm Mut. Auto. Ins. Co., 641 A.2d 783 (Conn. 1994) 138n56, 149n18,
151n26,496n16
Williams v.Taylor Mach., Inc., 529 So. 2d 606 (Miss. 1988)527n25
Williams v.Williams, 390 A.2d 4 (D.C. 1978)163n88
Willits v.Peabody Coal Co., 188 F.3d 510 (6th Cir. 1999)526n20
760
Table of Cases
Wills v.Wills, 745 N.W.2d 924 (Neb. Ct. App.2008)571n106

Wilson v.Ake, 354 F.Supp.2d 1298 (M.D. Fla. 2005)563n59
Wilson v.Johns-Manville Sales Corp., 684 F.2d 111 (D.C. Cir. 1982)276n9
Windsor; United States v., __U.S. __, 133 S.Ct. 2675 (2013)554, 554n3, 560, 560nn3039, 561,
561nn4045
Winter v.Novartis Pharms. Corp., 739 F.3d 405 (8th Cir. 2014)266, 266nn503505, 285, 285nn5456
Winterbottom v.Wright, 10 M&W 109, 152 E.R. 402 (1842)656n245
Wireless Distribs., Inc. v.Sprintcom, Inc., 2003 WL 22175607 (N.D. Ill. Sept. 19, 2003)397n326
Witowski v.Roosevelt, 199P.3d 1072 (Wyo. 2009)571n106
Woessner v.Air Liquide Inc., 242 F.3d 469 (3d Cir. 2001)283n43
Wong v.PartyGaming Ltd., 589 F.3d 821 (6th Cir. 2009)440n40,448n73
Wood v.Hustler Magazine, Inc., 736 F.2d 1084 (5th Cir. 1984)245n378
Wood v.Mid-Valley Inc., 942 F.2d 425 (7th Cir. 1991)90n138
Wood Bros. Homes, Inc. v.Walker Adjustment Bureau, 601P.2d 1369 (Colo. 1979)137n51,151n26
Woodward v.Stewart, 243 A.2d 917 (R.I. 1968)128n21, 171n153, 180n19, 195n75,345n15
Woodward v.Taylor, 2014 WL 4988188 (Wash. App. Div. 1 Oct. 6, 2014)231n286
Workman v.Chinchinian, 807 F.Supp.634 (E.D. Wash. 1992)222n253
W.R. Grace & Co. v.Hartford Accident & Indem. Co., 555 N.E.2d 214 (Mass. 1990)436n2
Wright, In re Estate of, 637 A.2d 106 (Me. 1994)77,77n67
Wright, In re Marriage of, 2013 WL 6633957 (Wash. Ct. App. Dec. 16, 2013)615n146
Wright v.Campbell, 277 S.W.3d 771 (Mo. Ct. App.2009), transfer denied (Mar. 3, 2009), transfer denied
(Mar. 31, 2009)527n20
Wright-Moore Corp. v.Ricoh Corp., 908 F.2d 128 (7th Cir. 1990)427n492
W.S. Kirkpatrick & Co. v.Environmental Tectonics Corp., 493 U.S. 400 (1990)36, 36nn127129
Wyatt v.Fulrath, 211 N.E.2d 637 (N.Y. 1965)623, 623nn195196, 623n199
Wyatt v.Syrian Arab Republic, 398 F.Supp.2d 131 (D.D.C. 2005)630n37
Wyeth v.Rowatt, 244P.3d 765 (Nev. 2010)275n6, 276n10, 334, 334nn365367
Wysong & Miles Co. v.Employers of Wausau, 4 F.Supp.2d 421 (M.D.N.C. 1998)505n64
X
Xiong v.Xiong, 648 N.W.2d 900 (Wis. Ct. App.2002)555n10,555n15
Y
Yamada Corp. v.Yasuda Fire & Marine Ins. Co., 712 N.E.2d 926 (Ill. App.1999)448n74
Yarborough v.Yarborough, 290 U.S. 202 (1933)21, 21n28,22
Yavuz v.61 MM, Ltd., 465 F.3d 418 (10th Cir. 2006)449, 449n82, 450nn8385, 453n110
Yavuz v.61 MM, Ltd., 576 F.3d 1166 (10th Cir. 2009)397n326,450n86
Young v. Players Lake Charles, LLC, 47 F. Supp. 2d 832 (S.D. Tex. 1999) 244, 244nn373374,
245n375
Young v.W.S. Badcock Corp., 474 S.E.2d 87 (Ga. App.1996)395n304
Ysbrand v. DaimlerChrysler Corp., 81 P.3d 618 (Okla. 2003), cert. denied, 542 U.S. 937
(2004)142n64,346n25
Yukos Capital S.A.R.L. v. OAO Samaraneftegaz, 963 F. Supp. 2d 289 (S.D.N.Y. 2013), aff d, 592 Fed.
Appx. 8 (2d Cir. 2014)490n341
Z
Zangiacomi v.Saunders, 714 F.Supp.658 (S.D.N.Y. 1989)232n292
Zatuchny v.Doe, 825 N.Y.S.2d 458 (N.Y. App. Div. 1 Dept. 2006)246n384
Zelinger v.State Sand & Gravel Co., 156 N.W.2d 466 (Wis. 1968)170n152
Table of Cases
761
Zenaida-Garcia v.Recovery Sys. Tech., Inc., 115P.3d 1017 (Wash. App.2005), review denied, 132P.3d
1094 (Wash. 2006)306, 306n190
Zenith Radio Corp. v.Matsushita Elec. Indust. Co., 494 F.Supp.1161 (E.D. Pa. 1980)243n362
Zimmerman v.Novartis Pharms. Corp., 889 F.Supp.2d 757 (D. Md. 2012)261n473, 262n474, 282,
282n35, 282nn3839
Zschernig v.Miller, 389 U.S. 429 (1968)32, 32n97, 32n100, 32n102, 33,33n103
Zurich Am. Ins. Co. v.Goodwin, 920 So. 2d 427 (Miss. 2006)496n17
Zurich Ins. Co. v. Shearson Lehman Hutton, Inc., 642 N.E.2d 1065 (N.Y. 1994) 516, 516n119,
516nn123124, 516nn126127, 517n128,529n32
Zygmuntowicz v.Hospital Invs., Inc., 828 F.Supp.346 (E.D. Pa. 1993)244n372
Table ofStatutes, Regulations,

and Conventions
United States Constitution
art.I15
art. I, 115n1
art. I, 8 6n17, 16, 31n95,625n1
art. I, 8, cls. 1-1216n2
art. I, 8, cl. 316n7
art. I, 8, cl. 10 632n48
art. I, 8, cl. 1816n3
art. I, 10 31n96
art. II15
art. II, 2 31n94
art. III15
art. III, 2 37n138
art. IV 17,18n16
art. IV, 1 7n22,19n18
art. IV, 2 17n11
art. VI 6n19, 16, 16n4,627n12
amend. IV 654n228
amend. V 17n12, 560, 561, 627, 654n228
amend. X 6n18, 16n5, 32n99,39
amend. XIV 17, 17nn1113, 18n16, 26,
87n128, 561,563
amend. XVIII637
Statutes and Regulations
United States
United StatesCode
1U.S.C.
7 553n2, 559n26,559n27
9U.S.C.
116 463n170
1 464n179
2 463n170, 465n183, 465n184
3 478n279
201208 474n244
202 474n245
208 473n242
301307 474n244
305 474n245
307 473n243
15U.S.C.
1 647n169
6(a) 648n182
78aa 243n365, 657n250
78j(b) 655n231
13611421 633n57
18U.S.C.
922(g)(1) 83n107
953 629n24
1332(c) 87n129
1965 85n118
2285 633n56
23312339C 630n32
2331(1)(C) 629n31
2332(a) 630n33
2332(c) 630n34
2333(a) 630n35
2381 629n25
2423 629n27
2423(c) 629n28
28U.S.C.
1330 38n142
1331 37n138
1332(a) 38n142
1346 38n140
1346(b) 650n193
1350 658n257, 664n312
1350 Note 631n38
763
764
and Conventions
1367 38n139
1404(a) 440n36, 546n148, 550,
550n166
1407 697n124
1602 et seq. 36n131,38n142
1605(a)(2) 37n133
1605(a)(3) 37n134
1605(a)(5) 37n135
1605(a)(7) 37n136, 267n511
1605A 630n36
1652 38n143
1738 7n23, 19n20,20n24
1738AB 563n56
1738A 7n23, 571n107
1738A(a) 571n109
1738A(b)(4) 571n110
1738A(c)(2)(A) 571n110
1738A(c)(2)(B)(D) 572n111
1738B 7n23, 569n97,570n99
1738B(g) 563n60
1738C 7n23, 559n26,559n28
17397n23
2680(k) 650n196
29U.S.C.
171 637n91,637n96
42U.S.C.
2000e(f) 646n166
11601 et seq. 572n113
12181 et seq. 639n104
12182(a) 635n70, 639n105
12182(b)(2)(A)(ii) 639n107
12182(b)(2)(A)(iv) 639n108
12184(a) 639n106
12184(b)(2)(A) 639n107
12184(b)(2)(C) 639n109
46U.S.C.
688 634n69, 641n124
761(a) 633n58
1303(8) 476n260
1903(a) 632n54
1903(c) 632n55
10313(I) 633n60
30104 484n312
50U.S.C.
app. 5(b) 629n22
app. 453 629n26
Code of Federal Regulations
31 C.F.R. 500.329(a) 629n23
Federal Rules of Civil Procedure
12(b)(3)442
44.1 89, 89nn134135, 90n144,91n145
Federal Rules of Evidence

302 73n46
501 73n46
601 73n46
StateLaws
AlabamaCode
27-14-22 494n3
32-1-2 184n40, 696n118
AlaskaStat.
34.77.030 602n86
Arizona Rev.Stat.
20-1115 494n7
California Bus. & Prof.Code
16600 379n217
California Civ.Code
1646 346, 346n23, 346n24,347
California Civ. Proc.Code
338(c)(2) 598n76
California Fam.Code
125 606n104
760 606n104
2550 607n105
California Prob.Code
66 607n106
101 607n108
6113 619n168
Colorado Rev.Stat.
13-1.5-104 495n14
FloridaStat.
627.727 494n5
731.106(2) 624n205
IndianaCode
34-30-11-1 184n40, 696n118
KansasStat.
38-1114(f) 577n138
50-627(b)(1) 376n200, 425n475
Louisiana Civ.Code
art. 2315 679n33
art. 2315.4 251n408
art. 2315.7 251n408
art. 2315, cmt. b 679n35,679n37
arts. 35153549 678,678n31
art. 3515 678, 678n32, 680, 680n40,
680n43, 682, 684,685n61
art. 3517 77n63
art. 3519 680n43, 681, 682,684n57
art. 3520682
art. 3526 607n109
art. 3526(1) 607n109
art. 3526(2) 608n111
art. 3528682
art. 3529 620n174, 621n178, 682,685
Table ofStatutes, Regulations, and Conventions
art. 3530 620n174

art. 3533 620n176
art. 3534 621n175
art. 35373539382
arts. 35373540 139n58
art. 3537 680n43, 681, 682,684n57
art. 3537, cmt. a 382n231
art. 3538 383n243
art. 3539 380n221, 381n227,682
art. 3540 374, 375n190, 382, 383n241,
392n289
art. 3540, cmt. d 381n227
art. 3540, cmt. e 384n248, 385n250,
386n259, 405n371
art. 3542 202n123, 208n171, 680n43,
681, 681n44, 682, 683, 683n54, 684,
684n57,684n59
arts. 35433546 683, 683n53,684
art. 3543 181n21, 181n24, 208n168, 248,
248n401, 681, 686,687
art. 3543(1)(2) 687n78
art. 3543(1) 687n76
art. 3544 159n62, 181n25, 201n120, 681,
686,687
art. 3544(1) 202n124, 203n133
art. 3544(2)(a) 208n168,
216n222,687n72
art. 3544(2)(b) 223, 224n258,687n74
art. 3545 309n205, 338n380, 681, 685,
686,686n64
art. 3546 252n410, 269n514, 681,686
art. 3547 202n125, 683,686
art. 3549 544, 544n139, 545,
545n142,546
Louisiana Rev.Stat.
22:611 494n5
22:655 494n5
22:1406(D) 494n5
MarylandStat.
9-104 449n80
9-104(a) 449n80
Michigan Comp.Laws
324.1804 495n14
324.82126(6) 232n292
MinnesotaStat.
60A.08(4) 494n5
80C.21 430n505
MontanaCode
28-3-102 346n23,500n38
Nebraska Rev.Stat.
25-21.237 696n118
Nevada Rev.Stat.
696B.020 519n140
765
NewYork Est. Powers & Tr.Law

3-5.1(b) 619n168
3-5.1(c) 619n168
3-5.1(h) 623, 623n194
NewYork Gen.Oblig.
5-1401 370n179
NewYork LaborLaw
240 187,187n54
241 187n54
North Carolina Gen.Stat.
58-3-1 494n4
OklahomaStat.
tit. 12105 526n19
tit. 15162 346n23
tit. 363636 494n5
tit. 8420 609n115
Oregon Rev.Stat.
15.30015.380 392n292,688n82
15.300(1) 405n371
15.320 689n83
15.320(3) 411n395
15.320(4) 411n392
15.325 383n243,689n84
15.330 380n221, 381n228,689n84
15.330(2) 689n85
15.335 382n231,689n84
15.350 392n290,689
15.350(1) 386n259
15.350(2) 383n241
15.350(3)(4) 385n250
15.350(3) 384n248
15.355 375n191,689
15.355(1) 378n211
15.355(1)(c) 392n292
15.355(2) 378n211
15.360 689, 689n86,690
15.380 690n87
15.40015.460 690n88
15.41015.420 690n89
15.410 67n14
15.430 89n137,690n89
15.430(2) 392n291
15.435 338n381, 690n89, 693n103
15.440690
15.440(2)(a) 181n26, 201n121, 690,691
15.440(2)(b) 182n27, 202n124, 203n133
15.440(3)(a)(b)691
15.440(3)(a) 208n169, 216n222
15.440(3)(b) 208n170, 225nn265266
15.440(3)(c) 223, 223n256, 248,
249n402, 691,691n91
15.440(3)(c)(B) 691n95
15.440(4) 202n125
and Conventions
766
15.445 202n123, 690, 690n89, 691,

692n97, 692n102, 693, 693n103
15.445(3)(a) 692n100
15.445(3)(b) 692n101
15.445(4) 693n104
15.450 202n123, 691n92, 693n103
15.455 392n292
110.381 576n132
465.480(2)(a) 495n14,495n15
742.001 494n6
742.018 494n6
Puerto Rico DraftCode
art. 8 545n140
art. 28 385n250, 386n259
art. 29 374n189
art. 34 382n231, 383n241
arts. 3537 412n402
arts. 3536 412n402
art. 39 683n54
art. 39.3 202n125, 208n171
art. 39(3) 683n54
art. 40 208n168
art. 41 201n122, 202n124, 203n133,
208n168
art. 41(b)(2) 223n257
art. 44 621n178
art. 47 181n25
art. 48 622n189
South CarolinaCode
38-61-10 494n4, 519n140
TennesseeCode
56-7-102 494n5, 520n145
Texas Ins.Code
21.42 493n2
VirginiaCode
38.2-313 494n5
55-36 217n233
Washington Rev.Code
19.100.170 431n517
WisconsinStat.
299.33(4) 495n14
632.09 494n5
853.05 619n168
UniformLaws
Uniform Child Custody Jurisdiction and
Enforcement Act of1997
105 572n112
Uniform CommercialCode
1-105 137138n55, 142n65, 366,367
1-301 367, 375,415
1-301, cmt. 1 367n152
1-301, cmt. 2 348n40,348n41
1-301, cmt. 3 348n39

1-301(a) 366, 366n150, 367, 415n413
1-301(b) 348, 348n38,349
1-301(c) 367, 367n155, 375n192
1-302 367, 698n137
1-302, cmt. 2 408n385
1-302(a) 367n153
2-402 348, 367n155, 375n192
2A-105 348, 367n155, 375n192
2A-106 348, 367n155, 375n192
4-102 348, 367n155, 375n192
4A-507 348, 367n155, 375n192
5-116 348, 367n155, 375n192
6-103 348, 367n155, 375n192
8-110 348, 367n155, 375n192
9-301 through 9-308 585n25
9-301 through 9-307 348, 367n155,
375n192
9-307(b) 585n26
9-307(c) 585n26
art. 1-105 142n65
Uniform Conflict of Laws-LimitationsAct
2 531, 531nn5051, 532,532n56
4 531, 531n49, 533,533n65
Uniform Disposition of Community Property
Rights at DeathAct
1 609n113
3 609n114
6 609n115
Uniform Interstate and International Procedure
Act of1962
4.014.0388

Act of1986
13 U.L.A. 355 88n133
Uniform Interstate Family Support Act of2001

201 570n100
303(1) 570n100
604(a) 571n105
Uniform Marriage and Divorce Act, 206(b)
555n12
Uniform ProbateCode
1-201(18) 622n191
2-506 619n168
2-703 622n188, 622n191

Foreign Statutes
Afghanistancodif.
art. 17 380n221
art. 18 383n242
art. 35 373n186
Albaniacodif.
art. 11 380n221
art. 18 383n242
art. 33.3 363n127, 622n189
art. 40 594n70
art. 45.1 386n259
art. 45.2 383n236
art. 45.3 385n250
art. 52 412n401
art. 52.2 377n207
art. 57 393n300
Algeriacodif.
art. 10 380n221
art. 18 373n186
art. 19 383n242
Angolacodif.
art. 22 373n186
art. 25 380n221
art. 28 380n221
art. 36 383n243
Argentina codif.draft
art. 120 621n178
arts. 2599-2600 377n207
art. 2616 380n221
art. 2649 383n242
art. 2651 383n236, 386n259
art. 2651(a) 385n250
art. 2655 410n392, 412n401
Armeniacodif.
art. 1254 67n14
art. 1255 87n130
art. 1258 373n187
art. 1259 373n187
art. 1265 380n221
art. 1280 392n295
art. 1281 383n242
art. 1284(2) 386n259
art. 1284(3)(4) 385n250
art. 1292 363n127, 622n189
Austriacodif.
art. 3 87n130
art. 4 87n130
art. 5.2 74n51
art. 6 80n82
art. 8 383n243
art. 12 380n221
art. 19 604n91,604n93
art. 30 621n178
art. 48 392n295
Azerbaijancodif.
arts. 45 377n207
art. 10 380n221
art. 12 383n242
art. 24.4 377n207
art. 29 363n127, 622n189
Belaruscodif.
art. 1094 67n14
art. 1095 87n130
art. 1096.2 74n51
art. 1099 377n207
art. 1100 377n207
art. 1104 380n221
art. 1116 383n242
art. 1124.2 383n236
art. 1124.3 385n250
art. 1124.4 386n259
art. 1133 363n127, 622n189, 622n192
art. 1135 363n127, 622n189, 622n192
Belgiumcodif.
art. 15 87n130
art. 21 80n84
art. 21(2)374
art. 34 380n221
art. 79 363n127, 622n189, 622n192
art. 90 594n70
art. 92 594n70
art. 992.4 339n386
art. 100 339n386
art. 101 392n293
art. 102 182n31
art. 124 622n189, 622n192
Bulgariacodif.
art. 39 67n14
art. 43 87n130
art. 50 380n221
art. 61 383n243
art. 70 594n70
art. 89 363n127, 622n189, 622n192
art. 113(1) 392n293
Burkina Fasocodif.
art. 1005 74n51
art. 1044 363n127, 622n189, 622n192
Burundicodif.
art. 2 380n221
art. 5 383n242
art. 10 373n186
BustamanteCode
art. 187 604n91
art. 229 520n2
Cape Verdecodif.
art. 22 373n186
art. 25 380n221
art. 28 380n221
art. 35 383n243
Central African Republiccodif.
art. 40 380n221
art. 47 373n186
Chad codif. art. 72 373n186
767
768
and Conventions
Chinacodif.
art. 4 373n187
art. 5 373n187
art. 8 67n14
art. 12 380n221
art. 35 621n183
art. 42 410n392
art. 43 411n395
art. 47 392n293
Croatiacodif.
art. 6.2 74n51
art. 7 383n243
art. 13(1) 87n130
art. 14 380n221
Cuba codif. art. 21 373n186
Czechcodif.
art. 53 87n130
art. 77.4 363n127
Czech Republiccodif.
art. 35 74n51
art. 42 383n243
Dutch Act Regarding the Conflict of Laws on
Torts of 11 April 2001,codif.
art. 6 392n295
art. 8 182n31
Dutchcodif.
art. 2 87n130
art. 145 363n127, 622n189
East Timorcodif.
art. 21 373n186
art. 24 380n221
art. 27 380n221
art. 34 383n243
Estoniacodif.
art. 4 87n130
art. 7 80n82
art. 8 383n243
art. 12 380n221
art. 25 363n127, 622n189
art. 54 392n294
art. 6.1 74n51
Finland Code of Inheritance, codif. art. 10
621n181
FYROMcodif.
art. 5 373n187
art. 6.2 74n51
art. 7 383n243
art. 14 373n187
art. 15 380n221
art. 15(3) 386n259
art. 21.2 383n236
arts. 24-25 377n207, 412n402
art. 33(3) 392n293
Gaboncodif.
art. 30 373n186
art. 32 380n221
art. 57 384n243
Georgiacodif.
art. 35.2 385n250
art. 35.3 377n207
Germanycodif.
art. 4 76n62
art. 4.1 74n51
art. 6 79n82
art. 7 380n221
art. 11 383n243
art. 15 604n92
art. 15(II) 604n93
art. 32 520n2
art. 40(3) 84n115
art. 42 392n293
Greece Civ. Code, codif. art. 15 604n91
Guatemalacodif.
arts. 28-29 383n242
art. 31 373n186
Guinea-Bissaucodif.
art. 22 373n186
art. 25 380n221
art. 28 380n221
art. 36 383n243
Hungarycodif.
art. 3 67n14
art. 4 74n51
art. 5 87n130
art. 10 380n221
art. 30.1 383n243
art. 30.3 383n243
art. 30(4) 520n2
art. 33.1 182n31
art. 39 604n92
Italycodif.
art. 13.1.b 74n51
art. 13(3) 76n62
art. 14 87n130
art. 23 380n221, 383n243
art. 46 363n127, 622n189, 622n192
art. 56 622n189, 622n192
Japancodif.
art. 4 380n221
art. 10 383n243
arts. 1112 377n207, 412n402
arts. 11(3)(5) 384n244
art. 18 339n386
art. 20 339n386
art. 21 392n293
art. 22(2) 339n386
art. 42 373n186
Jordancodif.
art. 12 380n221
art. 21 383n243
art. 29 373n186
Kazakhstancodif.
art. 112.2 383n236
art. 112.3 385n250, 386n259
art. 1090 377n207
art. 1091 377n207
art. 1095 380n221, 383n242
art. 1121 363n127, 622n189
Kyrgyzstancodif.
art. 1167 392n295
art. 1168 67n14
art. 1170.2 74n51
art. 1173 377n207
art. 1174 377n207
art. 1178 380n221
art. 1190 383n242
art. 1198(2) 386n259
art. 1198(3) 385n250
art. 1206 363n127, 622n189
Latviacodif.
art. 8 380n221
art. 23 74n51
Liechtensteincodif.
art. 5 74n51
art. 6 373n186
art. 8 383n243
art. 12 380n221
art. 29.3 363n127, 622n189
art. 30 621n182
art. 39.1 383n236
art. 45 377n207, 412n402
art. 48 377n207, 412n402
Lithuaniacodif.
art. 1.14.1 74n51
art. 1.16 380n221
art. 1.38 383n243
art. 1.43.3 392n294
art. 1.43.5 339n386
Macaucodif.
art.14 67n14
art. 16 74n51
art. 20 373n187
art. 21 373n187
art. 27 380n221
art. 35 383n243
Madagascarcodif.
art. 28 380n221
art. 33 383n236
Mauritania codif. art. 7 380n221
Mexicocodif.
art. 12.V 373n186
art. 13.II 380n221
art. 13.IV 383n242
art. 15 II 80n82
Moldovacodif.
art. 1579 67n14
art. 1583 373n187
art. 1584 373n187
arts. 15891590 380n221
art. 1592 380n221
art. 1610 383n243
art. 1611 383n236, 385n250, 386n259
art. 1624 363n127, 622n189
Mongoliacodif.
art. 540.1 373n186
arts. 543544 380n221
art. 548.2548.8 383n242, 383n243
Mozambiquecodif.
art. 22 373n186
art. 25 380n221
art. 28 380n221
art. 36 383n243
Netherlandscodif.
art. 11 380n221
art. 12 383n243
North Koreacodif.
art. 5 373n186
art. 13 373n186
art. 17 380n221
art. 24 383n243
Paraguay codif. art. 22 373n186
Paraguay Law 5393 of 2015 408n387
Perucodif.
art. 2051 87n130
art. 2070 380n221
art. 2078 604n91
art. 2094 383n243
art. 2099 520n2
art. 3029 80n83
Polandcodif.
art. 5 74n51
arts. 1113 380n221
art. 25 383n243
art. 64.1 363n127, 622n189, 622n192
Portugalcodif.
art. 15 67n14
arts. 1719 76n62
art. 18 74n51
art. 25 380n221
art. 28 380n221
art. 36 383n243
art. 45(3) 182n28
769
770
and Conventions
Puerto Ricocodif.
art. 32 383n243
art. 33 380n221
Puerto Rico draftcodif.
art. 5 67n14
art. 48 363n127
Qatarcodif.
art. 11 380n221
art. 27 383n236
art. 29 383n243
art. 38 373n186
Quebeccodif.
art. 3078 67n14
art. 3081 80n83, 377n207
art. 3083 380n221
arts. 30853087 380n221
arts. 30983099 363n127, 622n189,
622n192
art. 3109 384n243
art. 3111(3) 385n250, 386n259
art. 3112 387n263
arts. 31173118 377n207, 412n402
art. 3119 412, 412n398
art. 3131 520n2
Romaniacodif.
art. 3 67n14
art. 4.1 74n51
art. 11 380n221
art. 17 380n221
art. 68(1) 363n127, 622n189, 622n192
art. 71 384n243
Russiacodif.
art. 1187 67n14
art. 1190.2 74n51
art. 1192 377n207
art. 1193 377n207
art. 1197 380n221
art. 1209 383n242
art. 1210(2) 383n236
art. 1210(3) 385n250
art. 1210(4) 386n259
art. 1212 377n207, 412n401
art. 1219(3) 392n294
Rwanda codif. art. 8 373n186
Serbia draftcodif.
art. 40.2 377n207
art. 104 363n127, 622n189
art. 107 621n179
art. 121 594n70
art. 136.2 383n236
art. 136.4 385n250
arts. 141142 377n207, 412n402
art. 144 377n207
art. 147 380n221
art. 158 393n300

Slovakiacodif.
art. 3 380n221
art. 4 384n243
Sloveniacodif.
art. 6.2 74n51
art. 8 384n243
art. 12 87n130
art. 13 380n221
Somaliacodif.
art. 11 380n221
art. 20 384n243
art. 28 373n186
South Koreacodif.
art. 5 87n130
art. 7 373n187
art. 9.1 74n51
art. 10 80n82, 373n187
art. 13 380n221
art. 15 380n221
art. 17 383n243
art. 25(1) 383n236
art. 25(2) 386n259
art. 25(3) 385n250
arts. 2728 377n207, 412n402
art. 32(4) 84n115
art. 33 392n294
art. 49 363n127, 622n189, 622n192
Spaincodif.
art. 9 604nn9293
art. 10(10) 520n2
art. 12.1 67n14
Sudancodif.
art. 11.1 380n221
art. 11.13c 384n243
Switzerlandcodif.
art. 14 76n62
art. 14.1 74n51
art. 16 87n130
art. 36 380n221
arts. 5253 604n93
art. 55 604n92
art. 87(2) 363n127, 622n189, 622n192
art. 90(2) 363n127, 622n189, 622n192
art. 91(2) 363n127, 622n189, 622n192
art. 94 621n180
art. 95(2) 363n127, 622n189, 622n192
art. 95(3) 363n127, 622n189, 622n192
art. 116(2) 383n236
art. 116(3) 385n250
arts. 120121 377n207
art. 120 411n394
art. 124 384n243
art. 132 392n294
art. 142(2) 182n30

art. 148 520n2
Taiwancodif.
art. 6 74n51
art. 7 373n187
art. 8 373n187
art. 10 380n221
art. 16 384n243
art. 20.1 383n236
art. 31 392n294
art. 36 520n2
Tajikistancodif.
arts. 11971198 377n207
art. 1201 380n221
art. 1210 383n242
art. 1218.2 383n236
art. 1218.3 385n250, 386n259
art. 1225.3 392n294
arts. 12311232 363n127, 622n189
Tunisiacodif.
art. 36 377n207
art. 38 377n207
art. 40 380n221
art. 67 411n395
art. 68 384n243
art. 71 392n294
art. 75 182n31
Turkeycodif.
art. 2 87n130
art. 5 377n207
art. 6 377n207
art. 7 384n243
art. 9 380n221
art. 24(1) 383n236
art. 24(2) 386n259
art. 24(3) 385n250
arts. 2627 377n207, 412n402
art. 31 377n207
art. 34(5) 392n293
Ukrainecodif.
art. 5.2 383n236
art. 5.3 386n259
art. 12 377n207
art. 14 377n207
art. 18 380n221
art. 31 384n243
art. 45 377n207, 412n401
art. 49.4 392n294
arts. 5255 411n396
art. 70 363n127, 622n189
United Arab Emiratescodif.
art. 11 380n221
art. 19.1 383n236
771
art. 26 74n51
art. 27 373n186
United Kingdom tort conflict statute 9.2 67n14
Uruguay draftcodif.
art. 5.1 377n207
arts. 6.16.2 377n207
art. 20 380n221
art. 43 384n243
art. 48.3 386n259
art. 50.5 410n392
art. 50.6 411n397
Uzbekistancodif.
art. 1164 377n207
art. 1165 377n207
art. 1169 380n221
art. 1181 383n242
art. 1197 363n127, 622n189
Uzbekistan codif.art.
1189.2 386n259
Venezuelacodif.
art. 4 74n51
art. 8 80n82, 373n187
art. 10 373n187
art. 37 384n243
art. 60 87n130
Vietnamcodif.
art. 759.3 373n186
arts. 761-763 380n221
art. 765 380n221
art. 770 383n242

Yemencodif.
art. 25 380n221
art. 30 383n236
art. 31 383n242
art. 36 373n186
International Conventions, EU
Regulations, and OtherRules
AAA International ArbitrationRules
art. 31 409n390
art. 31(1) 487n326, 487n332, 488n338
art. 31(3) 487n339
Brussels I Regulation (EU) No. 1215/2012 of
the European Parliament and of the Council
of 12 December 2012 on Jurisdiction and the
Recognition and Enforcement of Judgments
in Civil and Commercial Matters (Brussels
Irecast)
art. 19 413n407,441n41
art. 23 413n407,441n41
art. 25 447nn6970
art. 25(1) 436n3
Council Regulation 4/2009, of 18 December
2008 on Jurisdiction, Applicable Law,
and Conventions
772
Recognition and Enforcement of Decisions

and Cooperation in Matters Relating to
Maintenance Obligations
art. 15 363n131
Council Regulation 1259/2010, of 20 December

2010 Implementing Enhanced Cooperation in
the Area of the Law Applicable to Divorce and
Legal Separation
art. 5 363n131
Hague Convention of 15 June 1955 on the Law

Applicable to International Sales ofGoods
art. 6 373n186
Hague Convention on the Conflicts of Laws

Relating to the Form of Testamentary
Dispositions of1961
art. 1 619n169
Hague Convention on the Law Applicable to

Traffic Accidents of1971
art. 9 182n32

Products Liability of1973
art. 4 182n32
art. 5 182n32
art. 6 182n32
art. 9 182n32
Hague Convention of 14 March 1978 on the Law
Applicable toAgency
art. 2 381n222, 383n242
art. 5 383n237
art. 16 377n203
art. 17 377n203
art. 11 384n245
art. 17 373n187
art. 18 373n187
Hague Convention of 1 August 1989 on the Law
Applicable to Succession to the Estates of
Deceased Persons
art. 5 363n127, 622n186
art. 5(1) 622n186
Hague Convention of 30 June 2005 on Choice of
Court Agreements
art. 2(1) 411n394, 457n136
art. 3(b) 436n5
art. 3(c) 447n70
art. 5 444n55
art. 5(1) 699n147
art. 6 444n55, 446n64, 699n147
art. 9 446n67
art. II 84n114
Hague Convention of 5 July 2006 on the Law
Applicable to Certain Rights in Respect of
Securities held with an Intermediary
art. 11.1 373n187
art. 11.2 373n187
Matrimonial Property Regimes
art. 3 363n129,604n93
arts. 6-8 604n92
Trusts and on Their Recognition, art. 6
363n128
Hague Convention on the Civil Aspects of

International Child Abduction of1980
art. 1 572, 572n114
art. 2 572n115
art. 3 572, 574n122
art. 5 572n116
Hague Principles on Choice of Law in

International Commercial Contracts
art. 1 411n394
art. 1(3)(a) 381n222
art. 2.2 386n258
art. 2.3 384n249
art. 3 407n377, 408, 408n388, 699n141
art. 5 383n237
Hague Convention of 1 July 1985 on the Law

Applicable to Trusts and on Their Recognition
Hague Protocol on the Law Applicable to

Maintenance Obligations
Hague Convention of 22 Dec. 1986 on the Law

Applicable to Contracts for the International
Sale ofGoods
art. 2(c) 411n394
art. 5 381n222, 383n242
art. 7.1 383n237
art. 7(1) 386n257
art. 7(2) 384n249
ICC ArbitrationRules
art. 21(1) 487n328
art. 21(3) 487n339
art. 6 621n185
arts. 7-8 363n131
Interamerican (Mexico City) Convention on the

Law Applicable to International Contracts of
17 March1994
art. 5 381n222, 384n245
art. 7 383n237, 386n257
art. 8 384n249
art. 11 377n208
art. 11(1)377
art. 11(2)377
art. 18377
London Court of International Arbitration
(LCIA)Rules
art. 22.3 487n329
art. 22.4 487n339
Lugano Convention on Jurisdiction and the
Recognition and Enforcement of Judgments in
Civil and Commercial Matters of 30/10/2007
art. 23 436n4
NewYork Convention on the Recognition and

Enforcement of Foreign Arbitral Awards of 10
June1958
art. II 479, 485,486
art. II(3) 478, 478n278, 481, 481n293
art. V 478, 479, 481, 482, 484, 485,
487n339
art. V(1)(a) 478nn280281, 480, 481n294
art. V(1)(e) 485n318
art. V(2)(a) 478n282, 482, 482n298
art. V.2(b) 487n339
art. V(2)(b) 478n283
art. VI 485n318
Regulation (EC) No. 593/2008 of the European
Parliament and of the Council of 17 June
2008 on the Law Applicable to Contractual
Obligations. See Rome I this heading
Regulation (EU) No. 650/2012, of the European
Parliament and of the Council of 4 July 2012
on Jurisdiction, Applicable Law, Recognition
and Enforcement of Decisions and Acceptance
and Enforcement of Authentic Instruments in
Matters of Succession and on the Creation of
a European Certificate of Succession
art. 22 622n187
art. 22, 2012 O.J. (L 201)107 (EU)
363n127
art. 27 620n170
Regulation (EC) No. 864/2007 of the European
Parliament and of the Council of 11 July 2007
on theLaw Applicable to Non-contractual
Obligations (Rome II). See Rome II,
thisheading
Rome Convention on the Law Applicable to
Contractual Obligations of1980
art. 3(1) 386n256
arts. 57 377n203
773
arts. 56 412n400
art. 9 384n244
art. 16 377n203
Rome I Regulation (EC) No. 593/2008 of the
European Parliament and of the Council
of 17 June 2008 on the Law Applicable to
Contractual Obligations
art. 1(2)(a) 380n221
art. 3(1) 383n235
art. 3(2) 384n244
art. 3(3) 377n206
art. 5(2) 413n403, 413n409
art. 6 413n403
art. 6(1) 413n405
art. 6(2) 377n205, 413n404
art. 7(3) 413n403, 414n410
art. 8 413n403
art. 8(1) 377n205, 413n404
art. 8(2)(4) 413n406
art. 9(2) 414n410
art. 9(3) 377n207, 414n410
art. 10 384n244
art. 11 384n244
art. 11(5) 377n206
art. 12(1)(d) 520n2
art. 13 380n221
art. 14 392, 393n296, 408n386
art. 20 377n204
art. 21 414n410
Rome II Regulation (EC) No. 864/2007 of the
European Parliament and of the Council of
11 July 2007 on the Law Applicable to Non-
contractual Obligations
art. 4(2)340
art. 5(1) 339, 340, 340n387, 340n388
art. 5(2) 340n390
art. 6(4) 393n296
art. 8(3) 393n296
art. 14 363n132, 393n300, 699n144
art. 14(1)(a) 393n297
art. 14(1)(b) 393nn298300
art. 14(2) 393n301
art. 14(3) 393n301
art. 15 520n2
art. 16 393n301
art. 17 183n33
art. 23(1) 340n389
art. 26 79n82, 84, 393n301
Stockholm Chamber of Commerce (SCC)
ArbitrationRules
art. 22(1) 487n329
art. 22(3) 487n339
774
and Conventions
Switzerland Rules of International

Arbitration
art. 33 487n329
art. 33(2) 487n339
UNCITRAL ArbitrationRules
art. 21(1) 487n328
art. 35(1) 487n327
art. 35(2) 489n339
UNIDROIT Convention on Stolen or Illegally
Exported Cultural Objects of1995
art. 1(b) 594n68
art. 2 593n63
art. 3(1) 594n69
art. 3(2) 594n67
art. 5(1) 594n69
art. 5(2) 594n68
United Nations Convention on Contracts for the

International Sale of Goods (CISG) of1980
art. 1349
art. 1(1) 349n48
art. 2349
art. 6 349,350
art. 7(2) 351,352n58
art. 11 351, 382n234
art. 29 382n234
art. 96 351n57
United Nations Convention on the Law of the
Sea (UNCLOS)
art. 101(c) 632n52
World Intellectual Property Organization

(WIPO)Rules
art. 59(a) 487n329, 487n339
Table ofRestatements
Restatement (First) of the Law, Conflict ofLaws

1 45n2,54n34
7 67n11,75n53
8 75n53
121122 554n6
132 554n6
134 554n6,554n7
139(1) 71n36
208254 54n37
214 59n62,582n3
215 59n62,582n2
216 59n62
217 59n62,582n2
219 59n62,582n4
220 59n62,582n3
223224 59n62,582n5
225231 59n62,582n6
237 59n62
238 59n62
245250 617n151
245 59n62
246247 59n62
248 59n62
249250 59n62
255257 60n64
289290 60n65
300310 60n66, 617n152
323324 344n8
325 59nn5758, 344n3,344n7
326 55n39,344n3
332 54n36, 59n59, 344n5, 364n138,577
358 59n60,344n4
377 55n39, 59n55, 333n364
378 54n35
384 55n42,58n54
585 68n19
58669
58769
58869
58969
59069
59169
59269
59369
59469
59569
59669
59769
60069
60169
60269
603604 524n7
60360569
603524
604524
605528
60669
60762069
612 78, 78n74,79
612, cmt. c 79n79
Restatement (Second) of the Law, Conflict
ofLaws
3 408n383
6 111, 112, 112n109, 113, 114, 115n127,
142n65, 150, 154, 352, 353, 354n69, 355,
357, 429n501, 500, 506, 507, 515, 518,
539, 575, 584,702
775
776
6(2) 111n107
6(2)(a)(b) 70n27,82n100
6(2)(d) 541n121
6, cmt. (c) 112n110
6, cmt. d 112n108
7 67n13
8 76,76n59
78 578n144
90 359n103, 375, 375n194,376
90, cmt. c 375nn195196, 376n197
90, cmt. g 376n197
122 69n26
138 70n28
139(2) 72,72n39
141 354n73
142 314, 535n75, 539, 539n105,
540n110,541
142(2)(b) 540n114
142, cmt. g 543n135
145 68n16, 112nn109110, 114n125,
150, 518, 520, 533, 697, 697n127,702
145, cmt. e 179n13
145(2)148
145(2)(d) 204n136
146151 113n118
146 148n7,314
146, cmt. d 231n285
152 113n117
153155 113n118
156 114n119
157 114n119
158 114n119
159 114n119
160 114n119
161 114n121
162 114n119
163 114n121
164 114n119
165 114n119
166 114n119
168 114n121
169 114n120
170171 114n121
171 697, 697n127
171, cmt. d 697n126
172 114n119
173174 114n121
175 113n118
187188 354n69, 354n73, 381,384
187 150, 152n27, 345n21, 346, 347,
359n103, 365, 366, 366n149, 369, 376,
381, 387, 414, 431, 698, 698n138,699
187, cmt. b 382n230
187, cmt. c 408n383

187, cmt. d 432n520
187, cmt. e 387n262, 387n265
187, cmt. f 371n181
187, cmt. g 359n103, 378nn212213
187, cmt. h 405n371
187, cmt. i 386n259, 389n276
187, cmt. s 371n183
187(1) 369, 369n168, 370n176, 385,
385n253, 408n383, 432, 432n521,
699n140
187(1), cmt. c 369n169, 385n254
187(1), cmt. d 369n170, 369nn172174
187(2) 370, 370n176, 371, 385, 385n255,
389, 392n288, 418, 418n426, 419n435,
432, 487n331, 699n142
187(2)(a) 366n151, 370n175, 371n183
187(2)(b) 375, 378, 378n210
188 68n16, 76, 114n122, 114n125,
147n2, 151n26, 352, 353, 355, 356, 366,
369n171, 375, 381, 387, 496, 500, 503,
512, 515, 516, 518,702
188, cmt. b 356n87,357n89
188, cmt. c 357n89
188(1) 352n59,355n74
188(2) 352n59,355n74
188(3) 352n59
189192 354n71
189193 113n118
189197 353n61,355
189 353n62
190 353n63
191 353n64
192 353n65,518
193 353n66, 354n71, 496, 497, 500, 502,
503, 512, 515, 516, 696, 696n121
193, cmt. f 502n37
194197 354n71
194 353n67
195 353n68
196 113n118, 137n54, 354n69,357
197 354n70, 356,357
197, cmt. a 354n70
197, cmt. c357
198 114n123, 381, 381nn223224, 480,
480n289
198202 354n72
198207355
198, cmt a 381n226, 383n239, 383n240
199 114n124, 384n246
203 355,355n74
204205 354n72
207 354n72
222243 700n149
222266 700n148
223224 582n7
223 113n116, 353n62, 582n12,
700nn150151
223, cmt. a 582n13
223, cmts. cd 582n13
225232 113n116, 700n150
225 582n8
226227 582n9
228230 582n10
229 618n157, 618n158
231232 582n11
233234 604n95
234 700n152
236239 617n155
236242 617n153
236 76n60, 618n160, 700n150, 700n153
237238 618n159
237 700n153
239242 76n60, 700n150
239 700n154
240 618n157
241242 617n155, 700n154
244 584nn1921
245255 113n115, 700n149
245 584n22
246 584n23,585n24
247 594n65
258 604n96
258(2) 604n94
259 605n98
260265 113n115, 617n154, 700n149
260 76n61, 617n156
261262 617n156
261263 617n155
261 76n61
263265 76n61
777
263 617n156, 620n176

265 617nn155156
283 554n8,557
283, cmt. h 556n16
283, cmt. i 555n14,556n16
283, cmt. j 555n9
284 557,557n18
284, cmts. bc 557n19
284, cmt. c 557n20
285 113n115, 568n91, 700n149
285, cmt. a 568n91
286 113n115, 700n149
287 575n123,577
289290 578n145
289 113n115
291 354n69
Restatement (Third) of Foreign RelationsLaw
111(1) 626n5
111, cmt. a 626n8
111, cmt. b 626n8
111, cmt. c 626n6,626n7
403, cmt. g 626n10
415, cmt. j 647n169
443 35n119,36n126
483 85n116
512 636n80
721 627n15
Restatement of the U.S. Law of International
Commercial Arbitration, TentativeDraft
2-12(c) 480n288, 481n292
2-13 481n295
2-13, cmt. 482nn296297
2-14 481n295
2-15 482n299
2-15, cmt. c 483n301
2-16 486n324
4-18, cmt. b 490n342
Index
AAA. See American Arbitration Association

Accursius (1182-1263),47
Act of state doctrine,3536
ADA. See Americans with Disabilities Act
of1990
Admiralty law, 438441,642
Admissibility of evidence,6972
Adoption of children, 578579
Equal Protection Clause,579
Full Faith and Credit Clause,579
jurisdiction, 578579
Restatement (Second) of Conflict of Laws,578
Airplane crashes
conduct-regulation conflicts, 253, 258, 260261
products liability, 276277,327
ALI. See American Law Institute
Aliens, 18, 30, 32, 557n21, 628, 633,643
alien crews on vessels,638
Alien Tort Statute of 1789(ATS)
focus test,666
foreign law conflicts, 658668
Kiobel case, 660662
post-Kiobel case law, 662668
Sosa case, 658660
Alito, Samuel, 662,664
Alternative-reference rules, 681682
American Arbitration Association(AAA)
arbitration clauses, 487489
International Arbitration Rules, 487489
party autonomy,407
American Law Institute (ALI), 54, 56, 111112,
153, 364365, 539, 677, 694, 697. See also
specific Restatement
American Stock Exchange(AmEx)

arbitration clauses,488
party autonomy,407
Americans with Disabilities Act of 1990 (ADA),
635, 639641, 669670
Anational law, 5. See also Nonstate norms;
Rulesoflaw
Antiquities, 588589
Anti-rulism,9798
Anti-Terrorist Act of 1991 (ATA), 629630
Antiterrorist and Effective Death Penalty
Actof1996
conduct-regulation conflicts, 267268
foreign law conflicts,630
Application of choice-of-law rules,6886
evidence,6972
foreign tax-law exception,8586
overview,64
penal-law exception,8284
public policy exception,7882
remission,74
renvoi,7378
substance vs. procedure,6873
Arbitration clauses, 462491
American Arbitration Association
International Arbitration Rules, 487489
applicable law, 487491
arbitrability, 481484
COGSA, 476477
consumer contracts, 469472
contractual capacity,480
domestic interstate arbitration, 462473
employment contracts, 468469
779
780
Arbitration clauses (Contd.)

Federal Arbitration Act, 463466, 470,
473476,478
foreign arbitration, 473491
formation of arbitration agreement, 480481
governing law, 478486
International Chamber of Commerce,487
Jones Act, 484486
lex fori,479
lower court case law, 468472
NewYork Convention, 473474, 478482,
484486, 489490
overview, 5, 462465
Panama Convention, 473474
public policy exception, 484486
Restatement (Second) of Conflict of
Laws,480
Restatement of U.S. Law of International
Commercial Arbitration (draft), 480483,
481n292, 486, 489490
rules of law, 487488, 488n336
scope of, 481482
Seamans Wage Act,486
Securities Exchange Act,474
separability of, 472473
Sherman Act, 466467
stock exchanges,488
Supreme Court case law, 465468, 473477
UNCITRAL Model Law, 472, 472n235,
487488
UNIDROIT, 487488
validity of, 481482
Articles of Confederation,19
Artistic property, 589592
Asbestos
products liability, 275276, 287, 311, 322,
329333
ATA (Anti-Terrorist Act of 1991), 629630
ATS. See Alien Tort Statute of1789
Austria
Civil Code,592
Nullification Act,592
Automobile insurance, 496501
contracts, 500501
interest analysis, 501, 505508
lex loci contractus, 496,499
lex loci delicti,499
Restatement (Second) of Conflict of Laws,
496497, 499500
underinsured motorist coverage, 496497,
500501
uninsured motorist coverage, 498, 500501
Index
Bartolus of Sassoferrato (1313-1357),4748

Baxter, William F., 94, 105106, 188n56, 679680
Beale, Joseph H., 5358, 69, 93, 95, 178,
364365, 582, 676,701
Berman, Paul,115
Better law approach, 106108, 170173
biases in, 171172
de-emphasis of,173
early case law, 171172
eclecticism,173
federalism,24,30
products liability, 314315, 331332
selectivist approach,107n82
statutes of limitations,537
Bibliography,1011
Bilateralism, 50, 641644
Blending laws, 34,48
Bodin, Jean,49
Borchers, Patrick, 115, 686687
Borrowing statutes, 526527,527n24
Brennan, William, 25n45,551
Breyer, Stephen, 467, 640,648
Briggs, Adrian,382
Brilmayer, Lea,116
Brussels IRegulation(EU)
forum selection clauses, 436, 441, 441n42,
447,447n69447n70,450
party autonomy,413
Buxbaum, Hanna,116
Bybee, Jay,666
Cabranes, Jos A.,662
California
Civil Code,346
Equipment Dealers Act,430
Family Code,606
Holocaust Victim Insurance Relief Act,
3334,34n113
Probate Code,607
Capacity, contractual, 380381
Cardozo, Benjamin, 79, 8384, 360,375
Car-owner statutes, 186, 239240,246
Carriage of Goods by Sea Act of 1992 (COGSA),
476477
Categories of conflicts,67
Cavers, David F., 57, 61, 9394, 9698, 106, 174,
694695n112,703
Center of gravity approach. See also Grouping
of contacts approach; Significant-contacts
approach
insurance,511
statutes of limitations, 529530
theoretical development, 130134, 137, 154,
162163
Index
Certification,42n164
Characterization,6567
domestic relations,66
insurance,6567
lex causae, 6667,67n14
lex fori, 66,67n14
lex loci contractus,6566
lex loci delicti,65
overview,64
Restatement (First) of Conflict of Laws,6567
torts,66
Charming Betsy presumption, 626, 644, 647648
Childress, Donald,116
Child support, 569571
Choice of court clauses. See Forum selection
clauses
Choice of forum clauses. See Forum selection
clauses
Choice of law revolution,93121
anti-rulism,9798
assumptions about state interests,99100
better law approach, 106108, 170173.
Seealso Better law approach
Cavers in,9697
combined modern approaches, 173174
comparative impairment, 105106, 165168
consequences-based approach, 109110
contemporary scholarship, 115121
Cook in,9496
Currie in, 97106. See also Currie, Brainerd
direct conflicts,101n44
domestic method,98
false conflicts, 100103
forum favoritism,103
functional analysis, 108109
governmental interest analysis, 9899,163
in-between conflicts, 100103
inverse conflicts,101n44
Leflar in, 106108
lex fori, 168170
local law theory,94
methodological pluralism, 145150. See also
Methodological pluralism
modified interest analysis, 164165
overview,9394
Reese in, 111115
111115, 151154. See also Restatement
(Second) of Conflict ofLaws
significant-contacts approach, 154155
Trautman in, 108109
true conflicts, 100103, 101n45,109n93
von Mehren in, 108109
781
Weintraub in, 109110

Choice of lawrules
application of, 6886. See also Application of
choice-of-lawrules
characterization, 6567. See also
Characterization
components,6364
domicile,8687
judicial notice,8792
localization, 6768. See also Localization
overview,6364
proof of foreign law,8792
Restatement (Third) of Conflict of Laws
(proposed), 700703
unilateral rules, 494495
waivable vs. non-waivable rules,369
CISG (United Nations Convention on Contracts
for the International Sale of Goods),
349352
Citizenship, 87,474
Civil Rights Act of 1964,646
Civil unions,559n25
Clermont, Kevin M., 445, 448, 4574548
Codifications. See also specific codification
American, 181182
choice of law generally, 705708
foreign countries, 182183, 202203,
705708
loss-distribution conflicts, 181183, 202203
COGSA (Carriage of Goods by Sea Act of 1992),
476477
Colangelo, Anthony,116
Combined modern approaches, 173174
Comity,35
Commentaries (Story),53
Commentary (Weintraub),110
Commentators,4749
Commerce Clause, 16,30n83
Commercial liability insurance, 502518
environmental pollution insurance, 502509.
See also Environmental pollution
insurance
products liability insurance, 510512
punitive damages, 512518
Common-domicile cases, 194204
converse-Babcock pattern, 196199
descriptive rule, 200201
foreign codifications, 202203
Oregon codification, 690,691n92
preexisting relationships,204
quasi-statutory rules, 201202
states with same law,203
statutory rules, 201202
Common-law marriage,555n10
782
Index
Community property
moving from community property state to
separate property state, 608609
moving from separate property state to
community property state, 605608
overview, 602603
Comparative impairment
statutes of limitations, 537539
theoretical development, 105106, 165168
Comparative negligence, 142, 195n78, 235,
298n132
Complex Litigation Project (ALI), 677,697
Conduct-regulation conflicts, 229269
airplane crashes, 253, 258, 260261
all three contacts imposing punitive
damages,252
American codifications, 181182
Antiterrorist and Effective Death Penalty Act,
267268
asbestos, 264265
Babcock case, 179180
car-owner statutes, 239240,246
conduct and injury in different states prescribing
same standards of conduct, 237238
conduct and injury in same state, 231237
conduct in state with higher standard and
injury in state with lower standard, 238242
conduct in state with lower standard and injury
in state with higher standard, 242247
dram shop acts, 239, 244245
effects doctrine,243
EU Rome II Regulation, 182183
Federal Corrupt Practices Act,241
foreign codifications, 182183
generic conflicts, 229249
historical development, 177179
interest analysis, 241242,268
loss-distribution conflicts distinguished, 177189
no contacts imposing punitive damages,
266268
only state of conduct imposing punitive
damages, 259261
only state of defendants domicile imposing
only state of injury imposing punitive
damages, 261266
overview,229
pertinent contacts, 229230, 250252
practical use of distinction, 188189
primary purpose, 186188
purpose vs. effect, 184186

231,240
rules, 183, 247249, 268269
Schultz case, 179180
Sherman Act,243
states of conduct and injury imposing
punitivedamages, 256257
states of defendants domicile and conduct
imposing punitive damages, 252256
states of injury and defendants domicile
terrorism, 246247, 267268
typical patterns, 229230, 250252
Conflict of Laws (Story),5253
Conflict preemption, 33,33n105
Conflicts oflaws
categories of conflicts,67
choice of law as partof,1
conduct-regulation conflicts, 229269. See also
Conduct-regulation conflicts
defined,2
direct conflicts. See Direct conflicts
false conflicts, 100103
federal-international conflicts, 625670. See
also Foreign law conflicts
foreign law conflicts, 625670. See also
Foreign law conflicts
horizontal conflicts,67
in-between conflicts, 100103
interstate conflicts,6
intra-national conflicts,6
inverse conflicts. See Inverse conflicts
loss-distribution conflicts, 190229. See also
Loss-distribution conflicts
state-international conflicts,6
true conflicts. See True conflicts
vertical conflicts,6
Conflit mobile, 584585, 592593
Conformity Act of 1872,40
Consent
in forum selection clauses, 435442
party autonomy, 381382
Consequences-based approach, 109110
Consumer contracts
Contacts and interests test,2327
Contemporary scholarship, 115121
Contracts, 343433
arbitration, contractual capacity,480
automobile insurance, 500501
CISG, 349352
consumer contracts, arbitration, 469472
Index
employment contracts, arbitration, 468469

with forum selection clauses, 361433,
447456. See also Party autonomy
interest analysis, 346347, 358359n99
lex causae, 343n2, 359360
lex fori, 359360
localization,67
modern approaches, 358361
in NewYork, 162163
Oregon codification, 688690
party autonomy, 361433. See also Party
autonomy
public policy exception, 359n103, 360361
Restatement (First) of Conflict of Laws, 59,
343344
344345n13, 345348, 352358
(proposed), 698699
significant-contacts approach, 348, 358359
statutory choice of law rules, 346348
Stolarz case, 162163
traditional approach, 343345
U.C.C., 348349,698
without forum selection clauses, 343361,
445447
Contributory negligence, 82n95, 196197,
231232, 235, 293n103, 299n138,334
Conventions,4,4n9
Cook, Walter W., 56n44, 9396,106
Coquille, Guy de (1523-1603),49
Costa Rica Code of Civil Procedure,614
Cox, Stanley,116
Credit Repair Organizations Act of 1996,466
Cross-border torts, 218224
conduct and tortfeasors domicile in state
whose law favors tortfeasor, injury and
victims domicile in state whose law favors
victim, 218221
whose law favors victim, injury and
tortfeasor, 221222
Oregon codification,691
rules, 223224
Currie, Brainerd, 97106, 163170
generally, 50, 82, 9397, 111112, 676,
694695n112,703
anti-rulism,9798
apparent conflicts, 100101n43
assumptions about state interests,
99100,100n38
783
comparative impairment, 105106, 165168

contributions of, 103105
domestic method,98
false, true, and in-between conflicts,
100103
forum favoritism,103
governmental interest analysis, 9899, 163,
679680, 692693n201
lex fori, 168170
torts, 179180n13, 191,192n70
Custody of children, 571574
international cases, 572574
interstate cases, 571572
UCCJEA, 571572
Dane, Perry,116
dArgentr, Bertrand, 49,49n15
Death on the High Seas Act of 1920
(DOHSA),633
Defense of Marriage Act of 1996(DOMA)
Full Faith and Credit Clause, 562563
horizontal DOMA, 561563
legitimacy and filiation,577
overview, 553554
same-sex marriage, 559566
vertical DOMA, 559561
Dpeage, 125, 685686
DES,275n6
Dicey, ArthurV.,55
Digest (Justinian), 47, 48n12,49
Direct conflicts. See also True conflicts
loss-distribution conflicts, 204210
products liability, 278301
theoretical development,101n44
Discovery rule, 597600
Distributorship contracts, 426432
Diversity jurisdiction,3842
application of rules,7273
choice of law,4142
constitutional basis,38n142
procedural law, application of,4041
substantive law, application of,3840
Divorce, 566569
jurisdiction, 566569
568,568n92
same-sex marriage,564n65
talaq divorce,612
784
Index
DOHSA (Death on the High Seas Act of

1920),633
DOMA. See Defense of Marriage Act of1996
Domestic interstate arbitration
lower court case law, 468472
separability of arbitration clauses, 472473
Supreme Court case law, 465468
Domestic method,98
Domestic relations
adoption of children, 578579. See also
Adoption of children
characterization,66
child support, 569571
custody of children, 571574. See also
Custody of children
divorce, 566569. See also Divorce
filiation, 574578. See also Filiation
legitimacy, 574578. See also Legitimacy
marriage, 553558. See also Marriage
overview,553
same-sex marriage, 558566. See also Same-
sex marriage
Domicile
choice of law rules,8687
common-domicile cases, loss-distribution
conflicts, 194204. See also Common-
domicile cases, loss-distribution conflicts
conduct-regulation conflicts, 252259,
266268. See also Conduct-regulation
conflicts
defined,190n66
products liability law, 290291, 293295,
297301, 319325. See also Products liability
split-domicile cases, loss-distribution
conflicts,204227. See also Split-domicile
cases, loss-distribution conflicts
Dormant Commerce Clause,16
Dram shop acts, 186, 239, 244245
Drug Trafficking Vessel Interdiction Act of
2008,632633
Dual sovereignty,8
Due ProcessClause
choice of law, control of,2830
early jurisprudence,2223
federalism,2230
Full Faith and Credit Clause, interplay
with,2230
interventionism,2328
jurisdiction, control of,2830
laissez-faire,2328
life insurance,519
overview, 1718,2223
Dumoulin, Charles, 49, 49n15,362
Dutch Commentators,4950
Eclecticism,703
Effects doctrine
conduct-regulation conflicts,243
Egyptian law (ancient), 46,362
Ehrenzweig, Albert,50
Elginism,585
Employment contracts
arbitration, 468469
English conflict of laws doctrine,5152
Environmental pollution insurance, 502509
interest analysis, 508509
overview, 502503
pollution exclusion clauses,502
503507
site-specific approach, 505509
sudden and accidental,502
uniform contract interpretation approach,
503505
Equal ProtectionClause
generally,30n83
adoption of children,579
overview,1718
Erie doctrine, 3941,7273
Escape clauses, 682683
European Union Regulations, 708709. See also
specific Regulation
Evidence rules,6972
Extraterritoriality, 625670
presumption against, 635636, 646, 654668
False conflicts, 100103
Favorlaesi
products liability,341
torts,272
FDA (Food and Drug Administration), 312,
312n223
Federal Arbitration Act of1925
arbitration clauses, 463466, 470, 473476,478
forum selection clauses, 438, 460461
party autonomy,427
Federal Corrupt Practices Act of 1977,241
Index
Federalism,1542
act of state doctrine,3536
application of law in federal courts,3742
better law approach,24,30
comity,35
contacts and interests test,2327
diversity jurisdiction, 3842. See also
Diversityjurisdiction
division of lawmaking competence between
federal and state governments,1517
Due Process Clause, 2230. See also Due
ProcessClause
Federal Rules of Civil Procedure,40
foreign law conflicts, 3137. See also Foreign
law conflicts
Foreign Sovereign Immunities Act,3637
foreign sovereign immunity doctrine, 3537
FTCA,38
Full Faith and Credit Clause, 1822. See also
Full Faith and CreditClause
insurance,2327
jurisdiction,2830
limitations on state choice of law,1737
minimum contacts test,2830
Privileges and Immunities Clause,3031
procedural issues,2728
vested rights doctrine,23
workers compensation, 22n29,24
Federallaw
federalism, 1542. See also Federalism
foreign law vs., 625670. See also Foreign law
conflicts
national legislation proposals, 677678
recommendations, 677678
state law compared,78
Federal question jurisdiction,41n159
Federal Rules of Civil Procedure
federalism,40
forum selection clauses,442
judicial notice,8891
Federal Rules of Evidence, 7273,73n46
Federal Tort Claims Act of 1946(FTCA)
federalism,38
FFCCOSA (Full Faith and Credit for Child
Support Orders Act of 1994), 569571
Field, David Dudley,346
Field preemption, 33,33n105
Fifth Amendment, 560561
Filiation, 574578
DOMA,577
Restatement (Second) of Conflict of Laws, 577578
significant-contacts approach,577
785
Finch, Edward R.,365

Finland Inheritance Code,621
FISA (Foreign Sovereign Immunities Act
of1976)
federalism,3637
Floating clauses,436n2
Focus test, foreign law conflicts,666
Food and Drug Administration (FDA), 312,
312n223
Foreign arbitration
applicable law, 487491
arbitrability, 481484
contractual capacity,480
formation of arbitration agreement, 480481
scope of arbitration clauses, 481482
validity of arbitration clauses, 481482
Foreign Judgments Project (ALI),677
Foreign law conflicts, 625670
generally,6
ADA, 635, 639641, 669670
aliens in US, statutes applicable to,633
Alien Tort Statute, 658668
ambiguous statutes, 634668
Anti-Terrorist Act, 629630
Antiterrorist and Effective Death Penalty
Act,630
bilateralism, 641644
citizens injured abroad, statutes applicable to,
629630
citizens present or acting abroad, statutes
applicable to, 628629
conflict preemption, 33,33n105
Congressional power, 625628
Constitutional limits on Congressional power,
627628
Death on the High Seas Act,633
domestic conduct with foreign effects,
650652
Drug Trafficking Vessel Interdiction Act,
632633
effects doctrine, 644650
executive vs. judicial function,3537
expressly applicable statutes, 628634
federalism,3137
federal vs. state competence,3234
field preemption, 33,33n105
focus test,666
foreign conduct with domestic effects,
644646
786
Index
Foreign law conflicts (Contd.)

Foreign Sovereign Immunities Act,630
Foreign Trade Antitrust Improvements Act,
648650
forum non conveniens,667
FTCA, 650654
headquarters doctrine, 650652
high seas, statutes applicable to, 632633
High Seas Clause,632
internal affairs doctrine, 636641
International Convention for the Safety of Life
at Sea,640
internationalism, 648650
international law limits on Congressional
power, 625627
Jones Act, 634, 641643,670
Kiobel case, 660662
Labor Management Relations Act, 637638
Lauritzen case, 641644
Logan Act,629
Marine Mammals Protection Act,633
Maritime Drug Law Enforcement Act,632
maritime law, 636644
methodology, 668670
multilateralist approaches,634n64
National Prohibition Act,637
overview,3132
persons acting under foreign law, statutes
applicable to, 631632
political question doctrine, 35,35n118
post-Kiobel case law, 662668
(proposed), 697698
Restatement (Third) of Foreign Relations,
626627, 626n7626n8,648
Securities Exchange Act, 655658
Sherman Act, 635636, 645649,670
silent statutes, 634668
Sosa case, 658660
statutory interpretation,634
territoriality, 635636, 646650, 654668
Title VII,646
Torture Victim Protection Act, 631632
Trading with the Enemy Act, 628629
United Nations Convention on the Law of
theSea,632
Foreign Sovereign Immunities Act of
1976(FISA)
federalism,3637
Foreign sovereign immunity doctrine,3537
Foreign tax-law exception, 8586,85n116
Foreign Trade Antitrust Improvements Act

of1982 (FTAIA), 648650
Forum favoritism,103
Forum non conveniens,667
Forum selection clauses, 435462
actions filed in chosen court,444
actions not filed in chosen court, 445456
admiralty law, 438441
case law applying chosen law, 449452
case law applying forum law, 448449
choice of law clauses, interplay with, 458460
consent in, 435442
contracts with, 361433, 447456. See also
Party autonomy
contracts without, 445456
critique of, 456460
enforceability vs. interpretation, 452456
EU Brussels IRegulation, 436, 441, 441n42,
447, 447n69447n70,450
EU Rome IRegulation,437
exclusive jurisdiction, 435437
Federal Arbitration Act, 438, 460461
Federal Rules of Civil Procedure,442
floating clauses,436n2
Hague Choice of Court Convention, 436437,
444445n55, 446,446n67
interpretation vs. enforceability, 452456
lex fori, 445, 447449,456
Lugano Convention,436
nonexclusive jurisdiction, 435437
overview, 435442
(proposed),699
seized forums, 445456
separability of, 460462
service of suit clauses,436n2
Forum shopping, 39,4142
Fourteenth Amendment,561
France Civil Code,609
Franchise contracts, 426432
Frankfurter, Felix,567
FTAIA (Foreign Trade Antitrust Improvements
Act of 1982), 648650
FTCA (Federal Tort Claims Act of1946)
federalism,38
Full Faith and CreditClause
generally,7,677
Currieon,99
Index
divorce,569
DOMA, 562563
Due Process Clause, interplay with,2230
federalism,1822
as to judgments,2022
legislative history,1920
overview,1718
property,583
purpose of,1819
recognition of judgments,21n27
scope of, 20,20n22
text of,1819
Full Faith and Credit for Child Support Orders
Act of 1994 (FFCCSOA), 563n56, 569571
Functional analysis, 108109
Ginsburg, Ruth Bader, 467, 640641
Glossators,47
Governmental interest analysis, 9899, 163,
679680, 692693n201
Greek law, 46,362
Grouping of contacts approach. See also Center
of gravity approach; Significant-contacts
approach
theoretical development, 149, 154, 161162
torts,227
Growth in caseload, 675676n21
Guantanamo Bay Naval Base,628
Habitual residence,87
Hague Choice of Court Convention of2005
generally,699
forum selection clauses, 436437, 444445n55,
446,446n67
Hague Conference of Private International Law,
695n116
Hague Convention on Maintenance, 569570n98
Hague Convention on the Civil Aspects of
International Child Abduction of 1980,
572574
Hague Convention on the Conflict of Laws
Dispositions of 1961, 619620n169
Estates, 621622, 622n192
Products Liability, 339341
Trusts,621
Hague Convention on the Protection of Cultural
Property during Armed Conflict,587
787
Hague Conventions, 709710. See also specific

Convention
Hague Principles on Choice of Law on
International Commercial Contracts
generally, 699n141
party autonomy, 364, 377, 386, 406408
Hand, Learned, 94, 626, 644645
Harlan, John F., 33,337
Hastie, William H.,568
Hay, Peter, 89,116
Headquarters doctrine, 650652
High Seas Clause,632
Hill, Alfred,116
Historical development of choice-of-law
doctrine,4553
American doctrine,5253
bilateralism,50
Commentators,4749
Dutch Commentators,4950
Egyptian law,46
English doctrine,5152
Glossators,47
Greek law,46
multilateralism,50
overview,4546
Restatement (First) of Conflict of Laws, 5661.
See also Restatement (First) of Conflict
ofLaws
Roman law,4648
Selectivist method,48
statuists,4849
traditional choice of law system, 5356. See
also Traditional choice of lawsystem
unilateralism,50
Holmes, Oliver Wendell, 242243, 635636,644
Holocaust, artistic property, 589592
Horizontal conflicts,67
Huber, Ulrich, 12, 4950, 50n17, 52,
362,635
Hybrid systems, 376377
ICARA (International Child Abduction
Remedies Act of 1988),572
ICC (International Chamber of Commerce),487
Illinois
Beer Industry Fair Dealing Act,427
Franchise Disclosure Act,430
Sales Act,429
Immovables
marital property, 614615
overview, 581583
In-between conflicts, 100103
Indemnification of punitive damages, 517n128
788
Index
Insurance, 493521
automobile insurance, 496501. See also
Automobile insurance
center of gravity approach,511
characterization,6567
commercial liability insurance, 502518
environmental pollution insurance, 502509.
See also Environmental pollution insurance
federalism,2327
lex loci contractus, 494495
life insurance, 518521. See also Life insurance
overview, 493495
products liability insurance, 510512
(proposed),696
significant-contacts approach, 498,521
Inter-American Convention on International
Commercial Arbitration (Panama
Convention), 473474
Inter-American Conventions, 710711
Interest analysis
generally, 679680
adoption by states, 146147
automobile insurance, 501, 505508
combined modern approaches, 173174
conduct-regulation conflicts, 241242,268
contracts, 346347, 358359n99
environmental pollution insurance, 508509
governmental interest analysis, 9899, 163,
679680, 692693n201
lex fori,168
lex loci deliciti, 128,130
loss-distribution conflicts, 206207,
217218,227
products liability, 279, 311318, 331, 336337
renvoi,78
statutes of limitations, 529, 535539,535n75
theoretical development, 96, 101, 105, 108,
111112, 115, 148149
Internal affairs doctrine, 636641
International Chamber of Commerce (ICC),487
International Child Abduction Remedies Act of
1988 (ICARA),572
International Convention for the Safety of Life at
Sea (SOLAS),640
International Institute for the Unification of
Private Law (UNIDROIT)
generally,5
property, 587, 593n62, 594595
Internationalism, 648650
Interracial marriage,554
Interstate conflicts,6
Interventionism,2328
Intra-national conflicts,6
Intrastate torts, 204218
conduct, injury, and tortfeasors domicile in
state whose law favors tortfeasor, 205208
conduct, injury, and victims domicile in state
whose law favors victim, 208210
direct conflicts, 204210
Hurtado pattern, 214215
inverse conflicts, 211218
Neumeier pattern, 211214
no-interest cases, 211218
rules, 215218
true conflicts, 204210
Inverse conflicts. See also No-interestcases
theoretical development,101n44
Islamic divorce,612
Isocrates (436-358 B.C.E.),46
Issue-by-issue analysis, 684686
Jackson, Robert H.,644
Jayme, Erik, 592593n61
Jones Act of1920
foreign law conflicts, 634, 641643,670
Judgment recognition,1
Judicial jurisdiction,21
Judicial notice of foreign law,8792
Judiciary Act of 1789,3839
Juenger, Friedrich K.Fritz, 94, 106107n80,
675, 694695n112
Jurisdiction
generally,1,3
adoption of children, 578579
diversity jurisdiction, 3842. See also Diversity
jurisdiction
divorce, 566569
Due Process Clause,2830
federalism,2830
federal question jurisdiction,41n159
forum selection clauses, 435437
judicial jurisdiction,21
legislative jurisdiction,21
tag jurisdiction, 21,29n79
Jus cogens, 361362,369
Jus dispositivum, 361362,369
Justinian,4749
Index
Kagan, Elena,467
Kansas Consumer Protection Act, 423424
Kay, Herma Hill,116
Kennedy, Anthony, 476, 550551, 551n175,
639640,662
Kent, James,346
Klaxon doctrine, 8n31, 4142, 549551
Korn, Harold,116
Kozyris, Phaedon John, 117,675
Kramer, Larry,117
Labor Management Relations Act of 1947,
637638
Laissez-faire,2328
Lando Commission,488
Leflar, Robert A., 30, 94, 106108, 111, 128, 130,
148149, 170174, 314, 359, 703. See also
Better law approach
Legislative jurisdiction,21
Legitimacy, 574578
DOMA,577
577578
Lexcausae
characterization, 6667,67n14
contracts, 343n2, 359360
party autonomy, 372, 374376
statutes of limitations, 544545,552
Lex domicilii,616
Lexfori
generally,1,164
characterization, 66,67n14
contracts, 359360
Currie on, 168170
forum selection clauses, 445, 447449,456
interest analysis,168
loss-distribution conflicts, 197, 206, 212,
216,218
products liability, 289290, 308, 315318,
321,337
proof of foreign law,88
statutes of limitations, 533,552
theoretical development, 5051, 168170
UCLLA, 531, 533534
Lex limitativa, 372377
Lex loci celebrationis,554
Lex loci contractus,7576
Auten case, 133134
automobile insurance, 496,499
center of gravity approach, 133134
789
contracts,344
insurance, 494495
interest analysis, 136137
life insurance,521
marital property,611
post-Auten case law, 135139
punitive damages, insurability of, 513514
renvoi,7576
Restatement (First) of Conflict of Laws,59,61
135139, 141, 143, 151,153
retreat of, 133140
traditional states, 141143
W.H. Barber case, 133134
Lex loci deliciti
interest analysis, 128,130
Lex loci delicti
automobile insurance,499
Babcock case, 124127,271
characterization,65
dpeage,125
life insurance,520
loss-distribution conflicts, 190191, 194, 196,
199200, 213, 219, 225227
loss-distribution vs. conduct-regulation issues,
125126
post-Babcock case law, 127133
products liability, 274275, 294295, 299, 301,
308, 310, 319320, 324, 326328
renvoi,76,78
61,178
Restatement (Second) of Conflict of Laws, 128,
130133, 141, 143, 151,153
retreat of, 123133
torts, 178179, 269270
traditional states, 141143
Lex mercatoria,5
Lex originis,594
Lex patriae,616
Lex rei sitae originis
property, 5960, 59n62, 581583, 594596
successions,616
Life insurance, 518521
518,520
Limitations of actions. See Statutes of limitations
Little, Laura,117
790
Index
Livermore, Samuel,46
Localization
generally, 157,690n89
choice of law rules, 64, 6768, 68n18,68n18
contracts,344
insurance, 493494
party autonomy,412
Localizing rules, 412, 493494
Local law theory, 56n44,94
Logan Act of 1799,629
Loss-distribution conflicts, 190229
American codifications, 181182
Babcock case, 179180
Babcock pattern, 194196
common-domicile cases, 194204
victim, 218221
tortfeasor, 221222
conduct-regulation conflicts distinguished,
177189
content of laws, 191192
converse-Babcock pattern, 196199
cross-border torts, 218224
descriptive rule, 200201
foreign codifications, 182183, 202203
interest analysis, 206207, 217218,227
intrastate torts, 204218
lex fori, 197, 206, 212, 216,218
lex loci delicti, 190191, 194, 196, 199200,
213, 219, 225227
overview,190
pertinent contacts, 190191
practical use of distinction, 188189
preexisting relationships,204
primary purpose, 186188
purpose vs. effect, 184186
quasi-statutory rules, 201202

197198, 204, 206207, 212213
rules, 184, 215218, 223224, 227229
Schultz case, 179180
split-domicile cases, 204227
states with same law,203
statutory rules, 201202
three-state conflicts, 224227
two-state conflicts, 192194
typical patterns, 190194
Louisiana codification
alternative-reference rules in, 681682
catchphrase regarding choice of law in, 678679
certainty vs. flexibility in, 681686
codification of choice of law in, 678688,702
dpeage in, 685686
escape clauses in, 682683
general approach to choice of law in, 678680
goal of choice of law in, 678680
issue-by-issue analysis in, 684686
marital property in, 607608
methodology of choice of law in, 680681
operation of choice of law in, 686688
rules vs. approaches in, 683684
soft connecting factors in,682
statutes of limitations in, 544546
Lugano Convention,436
Mancini, Pasquale,362
Mandatory rules, 361, 367, 369, 373, 377, 384n244,
393n301, 412n402, 413415, 474,699
Marine Mammals Protection Act of 1972,633
Marital property, 602615
agreements, 609611
case law, 609615
common law vs. civil law, 603605
community property, 602603
conflicts problem, 603605
immovables, 614615
Louisiana approach, 607608
moving spouses, 605615
pure borrowed-law approach,606
pure quasi-community property approach,
606607
separate property, 602603
Index
substantive law, 602603

talaq divorce,612
taxation, 612614
traditional approach, 605606
Maritime Drug Law Enforcement Act of 2006
(MDLEA),632
Maritime law, 636644
Marriage, 553558
civil unions,559n25
common-law marriage,555n10
convergence of law, 553554
divergence of law, 553554
divorce, 566569. See also Divorce
DOMA. See Defense of Marriage Act of1996
incidents of, 556558
interracial marriage,554
marital property, 602615. See also Marital
property
Restatement (Second) of Conflict of Laws, 554557
same-sex marriage, 558566. See also
Same-sex marriage
validity of, 554556
Marshall, John, 626,644
McDougal, Luther,117
MDLEA (Maritime Drug Law Enforcement Act
of 2006),632
Methodological pluralism, 145150
caveats, 147150
methodological camps, 145147
relative inconsequence of methodology,150
148150
Mexico City Convention, 377,386
Michaels, Ralf,117
Mini-DOMAs,559
Minimum contacts test, 2830,34
Minnesota Franchise Act,430
Modified interest analysis, 164165
Moral turpitude, 8384n111
Motor vehicles
automobile insurance, 496501. See also
Automobile insurance
car-owner statutes, 186, 239240,246
Movables, 584602. See also Property
Multidistrict Litigation Statute,697
Multilateralism, 50, 98, 112, 634n64, 642,703
Nafziger, James,118
National Arbitration Forum (NAF), 471472
National Association of Securities Dealers(NASD)
party autonomy,407
791
National Conference of Commissioners of

Uniform State Laws (NCCUSL), 4, 88,
677678. See also specific UniformLaw
Nationality,87
National Labor Relations Act of 1935 (NLRA),
638639
National Labor Relations Board (NLRB),638
National legislation proposals, 677678
National Prohibition Act of 1919,637
Necessary and Proper Clause,16
Negligence, 82n95, 161, 165, 183, 209, 212n197,
214215, 220221, 236, 242243, 304, 532,
541542, 546,652
comparative negligence, 142, 195n78, 235,
298n132
contributory negligence, 82n95, 196197,
231232, 235, 293n103, 299n138,334
dram shop cases,244
negligent hiring,157
negligent supervision, 160n72, 219n243
in product design. See Products liability
Nelson, Dorothy Wright,665
Neumeier rules, 128n20, 148, 155162, 190n66,
201, 203n131, 206, 208, 210, 215, 216n221,
223n255, 225, 226n270, 227, 285, 292,
326,334
NewJersey
Domestic Partnership Act,565
Franchise Act,460
NewYork conflicts
Babcock case, 124127, 179180,271
charitable immunity in, 156157, 160161
contract conflicts in, 162163
Cooney case, 158159n58, 158160
Edwards case, 161162
Equitable Distribution Law,610
Estates Powers and Trusts Law,623
Gilbert case, 160161
interest analysis in, 160163
Neumeier case, 155156. See also Neumeierrules
Schultz case, 156158n55
Stolarz case, 162163
tort conflicts in, 155162
NewYork Convention, 473474, 478482,
484486, 489490
NewYork Stock Exchange(NYSE)
party autonomy,407
NLRA (National Labor Relations Act of 1935),
638639
NLRB (National Labor Relations Board),638
No-interest cases, 211218. See also Inverse
conflicts
792
Index
Nomenclature,13
conflict of laws,2
private international law,23
Non-economic loss, 307308
Nonstate norms, 5, 406409, 487488, 488n336
Oregon codification
certainty vs. flexibility in,693
codification of choice of law in, 688693,702
common-domicile cases in, 690,691n92
contracts in, 688690
cross-border torts in,691
general and residual approach in, 691692
general rules in, 690691
intrastate torts in,691
split-domicile cases in,691
torts in, 690693
Panama Convention, 473474
Parental Kidnapping Prevention Act of 1980
(PKPA), 563n56, 571572
Party autonomy, 361433
American model, 414432
capacity, 380381
civil law model, 410414
conflicts law, 405406
consent, 381382
distributorship contracts, 426432
EU Brussels IRegulation,413
EU Rome IRegulation, 377, 383386, 406,413
EU Rome Convention, 377, 412413
exempted contracts or issues, 389390
existence of agreement, 379384
Federal Arbitration Act,427
formation of agreement, 381382
form of agreement, 382384
franchise contracts, 426432
Hague Principles on Choice of Law on
International Commercial Contracts, 364,
377, 386, 406408
hybrid systems, 376377
invalidating law, 386388
jus cogens, 361362,369
jus dispositivum, 361362,369
lex causae, 372, 374376
lex fori, 372374
lex limitativa, 372377
limitations, 369379
Mexico City Convention, 377,386
multiple choice of law,386

nonstate norms, 406409
overview, 361367
parameters of,389
partial choice of law,386
presumptively weak parties, 409433
principle of, 361364
procedural issues, 400405
renvoi,406
requirements, 369379
Restatement (First) of Conflict of Laws,
364365
365367, 369371, 374376, 378, 382385,
387, 389, 392, 400401, 405, 408, 414415,
418, 425426, 429, 431432
scope of, 368369
scope of choice of law clauses, 388409
significant-contacts approach, 370, 403,428
substantial relationship vs. reasonable basis,
370371
time considerations, 384386
torts, applicability to, 391400
U.C.C., 365367, 370, 374375, 408,415
universality, 361364
validity of agreement, 379384
waivable vs. non-waivable rules,369
Penal-law exception,8284
Perdue, Wendy C.,185
Permanent Court of International Justice,644
Personality, 177178
Peterson, Courtland,118
Pharmaceuticals and products liability, 275n6,
311314
PKPA (Parental Kidnapping Prevention Act of
1980), 563n56, 571572
Plurilegalism,910
Political question doctrine, 35,35n118
Pollution insurance. See Environmental pollution
insurance
Posnak, Bruce,118
Posner, Richard, 73, 9192, 183, 220, 235236,
334335,444
Pothier, Robert,362
Powell, Lewis,25n45
Praetor peregrinus, 3,4648
Presumptively weak parties, 409433
American model, 414432
civil law model, 410414
distributorship contracts, 426432
Index
franchise contracts, 426432

overview, 409410, 432433
Private international law defined,23
Privileges and Immunities Clause, 7,
1718,3031
Products liability, 273341
airplane crashes, 276277,327
asbestos, 275276, 287, 311, 322, 329333
better law approach, 314315, 331332
choice of law rules, 338341
contacts, significance of, 337338
contacts-based rules, 339341
content of contact-state laws,278
DES,275n6
empirical evidence, 335336
favor laesi,341
FDA, 312, 312n223
Products Liability, 339341
injury and product acquisition as contacts,
291292, 325327
injury as contact, 295296
insurance coverage, 510512
interest analysis, 279, 311318, 331, 336337
inverse conflicts, 279, 301328
latent injuries, 328335
lex fori, 289290, 308, 315318, 321,337
lex loci delicti, 274275, 294295, 299, 301,
308, 310, 319320, 324, 326328
list of contacts, 274275
localization,67
motor vehicles, 315318
negligence,304
non-economic loss, 307308
overview, 273279, 335336
pertinent contacts, 274278
pharmaceuticals, 275n6, 311314
plaintiff s domicile and injury as contacts,
290291, 319322
plaintiff s domicile and product acquisition as
contacts, 293295, 322325
plaintiff s domicile as contact, 297301
pro-defendant law of defendant-affiliated state,
280283
pro-defendant law of plaintiff-affiliated state,
308328
product acquisition as contact, 296297
pro-plaintiff law of defendant-affiliated state,
302308
pro-plaintiff law of plaintiff-affiliated state,
283301
793

punitive damages, 284289, 295, 299301,305
qualifications to list of contacts, 275277
renvoi, 299300
296, 308, 314, 318320, 324, 328, 332,
334335,338
(proposed),697
significant-contacts approach, 289290, 302,
318320
single contact, choice of law based on,
295301, 327328
state policies and interests, role of, 336337
statutes of limitations, 302, 306, 314, 319,
329331
statutes of repose, 296, 299, 304, 309, 311, 314,
319322, 326327, 331,333
strict liability,305
three contacts, choice of law based on, 284290,
308318
time considerations, 328335
tires,318
tobacco,275
two contacts, choice of law based on, 290295,
318327
typical patterns of conflicts,278
workers compensation, interplay with,
325326
Proof of foreign law,8792
Property, 581624
antiquities, 588589
artistic property, 589592
common law vs. civil law, 600601
conflit mobile, 592593
discovery rule, 597600
elginism,585
even-handedness, 598599
good faith proviso, 597,597n74
immovables, 581583
lex originis,594
lex rei sitae originis, 5960, 59n62, 581583,
594596
marital property, 602615. See also Marital
property
materially closer connection, 596597
movables, 584602
multiple situses, 592593
non-forum substantive law, 599600
overview,581
proposed rule regarding,593
794
Index
Property (Contd.)
581582,584
584585,594
(proposed),700
stolen movables, 585602
substantive law solutions, 601602
successions, 615624. See also Successions
U.C.C., 585,585n26
UNIDROIT, 587, 593n62, 594595
Public policy exception
automobile insurance,501
contracts, 359n103, 360361
foreign arbitration, 484486
7879,8182
PuertoRico
codification of choice of law in,688
Dealers Contracts Act, 428429
Draft Code of Private International Law,
683n54,688
statutes of limitations in, 544546
Punitive damages
commercial liability insurance, 512518
contacts imposing,252
indemnification of, 517n128
insurability of, 512518
no contacts imposing, 266268
only state of conduct imposing, 259261
only state of defendants domicile imposing,
258259
only state of injury imposing, 261266
products liability, 284289, 295, 299301,305
purpose of, 249250
states of conduct and injury imposing punitive
damages, 256257
states of defendants domicile and conduct
states of injury and defendants domicile

Pure borrowed-law approach,606
Pure quasi-community property approach,
606607
Qualification. See Characterization
Racketeer Influenced and Corrupt Organizations
Act of 1970 (RICO), 85,86n123
Recommendations
national legislation proposals, 677678
(proposed), 693703. See also Restatement
(Third) of Conflict of Laws (proposed)
state legislation, 678693. See also specificstate
Reese, Willis L.M., 94, 111115,701
Regulation on Successions of 2012 (EU), 620,622
Reimann, Mathias, 118, 697698
Remission,74
Renvoi
lex loci delicti,76,78
party autonomy,406
Restatement (Second) of Conflict of
Laws,7576
syllogism,7778
Reppy, William,118
Restatement (First) of Conflict ofLaws
generally, 93, 9597, 111, 153,676
acceptance of,6061
Beale on,5358
choice of law rules under,64
contracts, 59, 343344
contributions of,5758
domicile,86
flaws of,5657
historical development,5661
lex loci contractus,59,61
lex loci delicti, 5859, 61,178
localization,67
marital property,60
property, 5960, 581582,584
public policy exception, 7879,8182
renvoi,75
Index
statutes of limitations, 524, 528, 547548

successions, 60, 617619
torts, 5859,270
Restatement (Second) of Conflict ofLaws
generally, 95,107
ad hoc analysis, 114115
adoption of, 151154, 151n23,151n25
automobile insurance, 496497, 499500
choice of law rules under,64
combined modern approaches,174
conduct-regulation conflicts, 231, 240,255
contracts, 344345n13, 345348, 352358
divorce, 568,568n92
domicile,86
environmental pollution insurance, 503507
legitimacy and filiation, 577578
lex loci contractus, 135139, 141, 143, 151,153
lex loci delicti, 128, 130133, 141, 143,
151,153
life insurance, 518,520
localization,68
loss-distribution conflicts, 197198, 204,
206207, 212213
marital property,611
marriage, 554557
methodological pluralism, 148150
most significant relationship, 112113
party autonomy, 365367, 369371, 374376,
378, 382385, 387, 389, 392, 400401, 405,
408, 414415, 418, 425426, 429, 431432
pointers,114
presumptive rules,113
products liability, 296, 308, 314, 318320, 324,
328, 332, 334335,338
products liability insurance, 512, 512n104
property, 582, 584585,594
proposal to replace. See Restatement (Third) of
Conflict of Laws (proposed)
punitive damages, insurability of, 514517,
514n114
renvoi,7576
rules,113
Section 6, 111112
significant-contacts approach, 154155
statutes of limitations, 533, 539546
successions, 617619
795

(proposed), 693703
certainty vs. flexibility in, 700703
choice of law rules, 700703
contracts, 698699
coverage of,695
filling gaps in Second Restatement, 696699
insurance,696
overview, 693694
property,700
situs,700
torts, 696697
updating content of Second Restatement,
696699
Restatement (Third) of Foreign Relations
generally,695
foreign law conflicts, 626627, 626n7626n8,648
foreign tax-law exception,85n116
Restatement (Fourth) of Foreign Relations
(proposed),695
Restatement of U.S. Law of International
Commercial Arbitration (draft)
generally, 696n119
arbitration clauses, 480483, 481n292, 486,
489490
Revolutionary status quo, 673676
Reynolds, William,119
Richman, William,119
RICO (Racketeer Influenced and Corrupt
Organizations Act of 1970), 85,86n123
Riles, Anelise,119
Roberts, John, 560n33,660
Roman law, 3,4648
Rome IRegulation(EU)
generally,698
party autonomy, 377, 383386, 406,413
Rome II Regulation(EU)
generally, 84,699
torts, 182183
Rome Convention on the Law Applicable to
Contractual Obligations of 1980(EU)
generally,698
party autonomy, 377, 412413
Roosevelt, Kermit,119
Rules of Decision Act of 1948,38
Rules of law, 5, 406409, 487488, 488n336.
See also Nonstatenorms
796
Same-sex marriage, 558566

civil unions,559n25
divorce,564n65
DOMA, 559566
Due Process Clause, 561562
Equal Protection Clause, 561562
Fifth Amendment, 560561
Fourteenth Amendment,561
Full Faith and Credit Clause, 562563
horizontal DOMA, 561563
interstate recognition of, 563566
mini-DOMAs,559
overview, 558559
vertical DOMA, 559561
Savigny, Friedrich Carl von, 5051, 51n21,112
Scalia, Antonin, 549, 552, 561, 641, 647648,
655657, 659660
Seamans Wage Act of1915
Securities Exchange Act of1934
Sedler, Robert, 119, 201n116
Seized forums, 445456
Selectivist method,48
Separability
of arbitration clauses, 472473
of forum selection clauses, 460462
Separate property
overview, 602603
Service of suit clauses,436n2
Sherman Act of1890
foreign law conflicts, 635636, 645649,670
Shreve, Gene,120
Significant-contacts approach. See also Center
of gravity approach; Grouping of contacts
approach
contracts, 348, 358359
insurance, 498,521
legitimacy and filiation,577
party autonomy, 370, 403,428
products liability, 289290, 302, 318320
property,589
theoretical development, 130134, 136139,
149, 154155, 168169
torts,205
Index
Silberman, Linda,120
Simson, Gary,120
Singer, Joseph, 120,583
Site-specific approach for environmental
pollution insurance, 505509
Soft connecting factors,682
SOLAS (International Convention for the Safety
of Life at Sea),640
Sotomayor, Sonia,161n76
Souter, David,651
Split-domicile cases, 204227
victim, 218221
tortfeasor, 221222
cross-border torts, 218224
intrastate torts, 204218
rules, 215218, 223224
three-state conflicts, 224227
State-international conflicts,6
State law. See also specificstate
federalism. See Federalism
federal law compared,78
recommendations, 678693
state defined,1n1
state legislation proposals, 678693
Statuists, 4849,178
Statutes of limitations, 523552
better law approach,537
borrowing statutes, 526527,527n24
center of gravity approach, 529530
choice of law clauses, interplay with, 547548
comparative impairment, 537539
current status of traditional American system,
528531
Currie on,544
Heavner case, 535539
Index
interest analysis, 529, 535539,535n75

judicial exceptions to traditional American
system,528
lex causae, 544545,552
lex fori, 533,552
new judicial approaches, 535539
overview, 523524
products liability, 302, 306, 314, 319, 329331
property,599
528, 547548
539546
state practices,547
substantive vs. procedural nature, 551552
traditional American system, 524531
true conflicts,543
UCLLA, 531534,544
Statutes of repose, 296, 299, 304, 309, 311, 314,
319322, 326327, 331,333
Stevens, John Paul, 25n45, 2627, 30n82,477
Stewart, Potter, 25n45,32n102
Stock exchanges arbitration clauses,488
Stolen movables, 585602. See also Property
Story, Joseph, 2, 46, 5253, 93, 95, 346, 362, 364,
524,635
Strict products liability,305
Substantivist method,45
Successions, 615624
choice of testator, 621624
EU Regulation on Successions, 620,622
Hague Convention on the Conflict of Laws
Dispositions, 619620n169
Estates, 621622, 622n192
Trusts,621
legislative interventions, 619624
lex domicilii,616
lex patriae,616
lex rei sitae originis,616
617619
617619
scission of estate, 615617
testamentary form, 619620
Uniform Probate Code, 619,622
Uniform Wills Act,619
unity of estate, 615617
validation rule, 620621
Supremacy Clause,16
797
Tag jurisdiction, 21,29n79

Talaq divorce,612
Taxation
foreign tax-law exception, 8586,85n116
marital property, 612614
Tenth Amendment, 16, 32n99,39
Territoriality
Beale on,5455
foreign law conflicts, 635636, 646650,
654668
torts, 177178
Terrorism, 246247, 267268
Three-strikes laws, 83,83n105
Tires, products liability of,318
Title VII,646
Tobacco, products liability of,275
Torts, 177272
applicable law,270
car-owner statutes, 186, 239240,246
characterization,66
conduct-regulation conflicts, 229269. See also
Conduct-regulation conflicts
Cooney case, 158159n58, 158160
cross-border torts, 218224. See also
Cross-bordertorts
dram shop acts, 186, 239, 244245
Edwards case, 161162
favor laesi,272
Gilbert case, 160161
grouping of contacts approach,227
intrastate torts, 204218. See also Intrastatetorts
lex loci delicti, 178179, 269270
loss-distribution conflicts, 190229. See also
Loss-distribution conflicts
Neumeier case, 155156
in NewYork, 155162
Oregon codification, 690693
overview, 269272
party autonomy, applicability of, 391400
5859,270
(proposed), 696697
Schultz case, 156158n55
territoriality, 177178
Torture Victim Protection Act of 1991 (TVPA),
631632
Trading with the Enemy Act of 1917, 628629
Traditional choice of law system,5356
territoriality,5455
vested rights doctrine,5556
Trautman, Donald T., 94, 108109
Traynor, Roger, 178,178n7
798
Index
Treatise (Beale),53
True conflicts. See also Direct conflicts
property, 595596
theoretical development, 100103,
101n45,109n93
TVPA (Torture Victim Protection Act of 1991),
631632
Twerski, Aaron,120
UCLLA (Uniform Conflict of Laws-Limitations
Act), 531534,544
UDCPRDA (Uniform Disposition of
Community Property Rights at Death Act
of 1971), 608609
UIFSA. See Uniform Interstate Family Support
Act of2001
UNCITRAL. See United Nations Commission on
International TradeLaw
UNCLOS (United Nations Convention on the
Law of the Sea),632
Underinsured motorist coverage, 496497, 500501
UNESCO, 587,593n62
UNIDROIT. See International Institute for the
Unification of PrivateLaw
Uniform Child Custody Jurisdiction and
Enforcement Act of 1997 (UCCJEA),
571572
Uniform Commercial Code (U.C.C.)
generally,4
contracts, 348349,698
party autonomy, 365367, 370, 374375,
408,415
property, 585,585n26
Uniform Conflict of Laws-Limitations Act
(UCLLA), 531534,544
Uniform contract interpretation approach,
503505
Uniform Disposition of Community Property
Rights at Death Act of 1971 (UDCPRDA),
608609
Uniform Foreign-Country Money Judgments
Recognition Act of 2005, 695n115
Uniform Foreign Money Judgments Recognition
Act of 1962, 695n115
Act of 1962,88
Uniform Interstate Family Support Act of 2001
(UIFSA), 569570n98, 569571n105,
570n100, 570n103
Uniform Judicial Notice of Foreign Law Act of
1936,88
Uniform Premarital Agreement Act,611

Uniform Probate Code, 619,622
Uniform Wills Act of 1910,619
Unilateral choice of law rules, 494495
Unilateralism, 50, 98,703
Uninsured motorist coverage, 496, 498,
500501
United Nations Commission on International
Trade Law (UNCITRAL)
arbitration clauses, 472, 472n235, 487488
overview,5
United Nations Convention on Contracts for
the International Sale of Goods (CISG),
349352
United Nations Convention on the Law of the
Sea (UNCLOS),632
United Nations Convention on the Recognition
and Enforcement of Foreign Arbitral
Awards of 1958 (NewYork Convention),
473474, 478482, 484486, 489490
United States Criminal Code,83
Universality, 361364
USAID (Agency for International
Development),653
Van Dusen rule, 550551
Vertical conflicts,6
Vested rights doctrine, 23, 5556,95n11
von Mehren, Arthur T., 94, 108109, 109n93,
694695n112
Wchtler, Carl Georg von,5051
Wardle, Lynn, 120121
Weinberg, Louise, 121, 181n21, 200201n115
Weinstein, Jack B., 188189
Weintraub, Russell J., 94, 109110, 675,680
Wharton, Francis,93
Whitten, Ralph,121
Whytock, Christopher,121
Wisconsin Consumer Act,425
Wood, Diane,9192
Workers compensation
federalism, 22n29,24
products liability, interplay with, 325326
Wrongful death, 77n69, 169n141, 180, 184,
195n78, 198, 213214, 253, 257, 260,
260n469, 295n118, 297n128, 299, 309n204,
315n248, 324n310, 332, 334n363, 463464,
464n177, 465n188, 528, 533, 536, 546,
556557, 557n21, 565,667
Yackee, Jason W., 445, 456457

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CHOICEOFLAW

The Oxford Commentaries

The Oxford Commentaries onAmericanLaw:

Other Works bySymeon C.Symeonides

The Oxford Commentaries on AmericanLaw

Oxford University Press 2016

About the Author

Summary Table ofContents

List of Figures, Charts, and Maps

PART ONE THE FEDERAL FRAMEWORK

4. The Structure of Choice-of-Law Rules and the Operation of

5. The Choice-of-Law Revolution:Theoretical Groundwork

6. The Judicial Revolution in Torts and Contracts

Summary Table of Contents

7. The Choice-of-Law Revolution Today: Methodological

PART THREE CHOICE OF LAW IN PRACTICE

11. Forum Selection Clauses and Arbitration Clauses

12. Insurance Conflicts

13. Statutes of Limitation

14. Status and Domestic Relations

15. Property, Marital Property, and Successions

16. Conflicts between Federal Law and ForeignLaw

PART FOUR CONCLUSIONS

Appendix:List of Choice-of-Law Codifications, EU Regulations, and

Table of Statutes, Regulations, and Conventions

Detailed Table ofContents

List of Figures, Charts, and Maps

I. Scope and Coverage

III. Choice ofLaw

A. Choice of Law and Jurisdiction

IV. Categories of Conflicts

V. Federal and State Laws and Courts

VI. Plurilegalism in a Single Country

Detailed Table of Contents

PART ONE THE FEDERAL FRAMEWORK

Detailed Table of Contents

II. Choice-of-Law Doctrine before the Twentieth Century

4. The Structure of Choice-of-Law Rules and the Operation

V. The Application of the Designated Law and Its Exceptions

Detailed Table of Contents

5. The Choice-of-Law Revolution:Theoretical Groundwork

VII. Contemporary Conflicts Scholarship

6: The Judicial Revolution in Torts and Contracts

Detailed Table of Contents

3. The Distinction between Loss-Distribution and

7. The Choice-of-Law Revolution Today:Methodological

II. Methodological Pluralism

III. The Restatement (Second)

IV. Significant-Contacts Approaches

VI. Currie-Based Approaches

A. Modified Interest Analysis

Detailed Table of Contents

PART THREE CHOICE OF LAW IN PRACTICE

II. The Distinction between Conduct-Regulation and

A. The Origins and Meaning of the Distinction

4. Examples from Each Category

B. The Validity of the Distinction:Separating Purpose and Effect

1. Pattern 1:The Babcock Pattern

Detailed Table of Contents

5. Cases Analogous to Common-Domicile Cases

a. Parties Domiciled in States with SameLaw

D. Split-Domicile CasesIntrastate Torts

2. Inverse Conflicts or No-Interest Cases

a. Pattern 5:The Neumeier Pattern

List of Figures, Charts, and Maps

4. The Structure of Choice-of-Law Rules and the Operation of

5. The Choice-of-Law Revolution:Theoretical Groundwork

6. The Judicial Revolution in Torts and Contracts

7. The Choice-of-Law Revolution Today: Methodological

11. Forum Selection Clauses and Arbitration Clauses

12. Insurance Conflicts

13. Statutes of Limitation

14. Status and Domestic Relations

15. Property, Marital Property, and Successions

16. Conflicts between Federal Law and ForeignLaw

Table of Statutes, Regulations, and Conventions

List of Figures, Charts, and Maps

I. Scope and Coverage

III. Choice ofLaw

A. Choice of Law and Jurisdiction

IV. Categories of Conflicts

V. Federal and State Laws and Courts

VI. Plurilegalism in a Single Country

II. Choice-of-Law Doctrine before the Twentieth Century

4. The Structure of Choice-of-Law Rules and the Operation

V. The Application of the Designated Law and Its Exceptions

5. The Choice-of-Law Revolution:Theoretical Groundwork

VII. Contemporary Conflicts Scholarship

6: The Judicial Revolution in Torts and Contracts

3. The Distinction between Loss-Distribution and

7. The Choice-of-Law Revolution Today:Methodological

II. Methodological Pluralism

III. The Restatement (Second)

IV. Significant-Contacts Approaches

VI. Currie-Based Approaches

A. Modified Interest Analysis

A. The Origins and Meaning of the Distinction

4. Examples from Each Category

B. The Validity of the Distinction:Separating Purpose and Effect

1. Pattern 1:The Babcock Pattern

5. Cases Analogous to Common-Domicile Cases

a. Parties Domiciled in States with SameLaw

D. Split-Domicile CasesIntrastate Torts

2. Inverse Conflicts or No-Interest Cases

a. Pattern 5:The Neumeier Pattern

E. Split-Domicile CasesCross-Border Torts

1. Pattern 7:Cases in Which the Conduct and the Tortfeasors

5. Pattern 12:Conduct in State with Lower Standard and

C. The Content of the Contact-States Laws

B. Cases Applying the Pro-Plaintiff Law of a Plaintiff-Affiliated State 283

Part One. Contracts without Choice-of-Law Clauses

I. The Traditional Approach

III. The Uniform Commercial Code (U.C.C)

IV. The CISG

V. The Restatement (Second)

VI. Other Modern Approaches

Part Two. Contractual Choice of Law (Party Autonomy)

B. Timing of Choice or Change

VI. Party Autonomy and Presumptively Weak Parties

11. Forum Selection Clauses and Arbitration Clauses

3. Summary and Critique

12. Insurance Conflicts

13. Statutes of Limitation

II. The Traditional American System

VI. Supreme Court Cases

VII. It Is Not an Either,Or

14. Status and Domestic Relations

VI. Legitimacy and Filiation

15. Property, Marital Property, and Successions

a. The Problem and the Challenge

(1) The Starting Point: The Lex Rei Sitae Originis

b. The Pure Borrowed-Law Approach

16. Conflicts between Federal Law and ForeignLaw

A. Statutes Applicable to U.S. Citizens Present or Acting Abroad

IV. Statutes That Are Silent or Ambiguous on Their Territorial Reach

F. The Territorial Presumption, Again

V. A Few Remarks on Methodology

II. Option Two:State Legislation

A. The Louisiana Codification

1. Goal, Catchphrase, and General Approach

C. The Oregon Codification

Table of Statutes, Regulations, and Conventions

Split-Domicile CasesIntrastate TortsInverse Conflicts