Choice of Law by Symeon C. Symeonides PDF

CHOICE OF LAW
The Oxford Commentaries

on American Law
The Editorial Advisory Board
The Honorable Morris S. Arnold

Senior Judge, United States Court of Appeals for the Eighth Circuit
The Honorable Drew S. Days III
Alfred M. Rankin Professor Emeritus and Professorial Lecturer in Law, Yale Law School, and
Former Solicitor General of the United States
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The Honorable Harry T. Edwards
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Richard H. Helmholz,
Ruth Wyatt Rosenson Distinguished Service Professor of Law
The University of Chicago Law School
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Director Emeritus, American Law Institute
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Former General Counsel, United States Navy
Joseph W. Singer
Bussey Professor of Law, Harvard Law School
Michael Traynor
President Emeritus, American Law Institute
Stephen M. Sheppard, Chair
Dean and Charles E. Cantú Distinguished Professor of Law,
St. Mary’s University School of Law
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Other Works by Symeon 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 American Law
Stephen M. Sheppard
Series Editor
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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 laws—United States. | Conflict of laws.
Classification: LCC KF411 .S965 2016 | DDC 342.73/042—dc23 LC record available at http://lccn.loc.gov/2015038271
1 3 5 7 9 8 6 4 2
Printed in the United States of America on acid-free paper
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To my Conflicts Teachers
Demetrios J. Evrigenis
Phocion Francescakis
David F. Cavers
Donald T. Trautman
and
Arthur T. von Mehren
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 world’s 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 govern-
ments. 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 européen de droit international
privé (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 of Contents
List of Tables xxxi

List of Figures, Charts, and Maps xxxiii
Preface xxxv
Acknowledgments xxxvii
Abbreviations xxxix
1. Introduction 1
PART ONE • THE FEDERAL FRAMEWORK
2. Federalism and Choice of Law 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 123
xi
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 Foreign Law 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 of Contents
List of Tables xxxi

List of Figures, Charts, and Maps xxxiii
Preface xxxv
Acknowledgments xxxvii
Abbreviations xxxix
1. Introduction 1
I. Scope and Coverage 1

II. Nomenclature 1
A. Conflict of Laws 2
B. Private International Law 2
III. Choice of Law 3
A. Choice of Law and Jurisdiction 3
B. Choosing versus Blending Laws 3
C. The Substantivist Method 4
D. Arbitration and Anational Law 5
IV. Categories of Conflicts 6
V. Federal and State Laws and Courts 7
VI. Plurilegalism in a Single Country 9
VII. Selected General Bibliography 10
xiii
xiv Detailed Table of Contents
PART ONE • THE FEDERAL FRAMEWORK
2. Federalism and Choice of Law 15
I. Introduction 15
II. The Division of Lawmaking Competence between the Federal
and State Governments 15
III. Federal Limitations on State Choice of Law 17
A. The Four Principal Constitutional Clauses 17
B. The Full Faith and Credit Clause 18
1. Text and Purpose 18
2. Legislative History 19
3. Scope 20
4. Full Faith and Credit to Judgments 20
C. The Full Faith and Credit and Due Process Clauses 22
1. Early Jurisprudence 22
2. From Interventionism to Laissez-Faire 23
3. Constitutional Controls of Jurisdiction and Choice of Law 28
D. Privileges and Immunities 30
E. Foreign Affairs 31
1. Federal versus State Competence 32
2. Executive versus Judicial Function 35
IV. Law Applied in Federal Courts 37
A. In General 37
B. Law Applied in Diversity Cases 38
1. Substantive Law 38
2. Procedural Law 40
3. Choice of Law 41
PART TWO • H
ISTORY, DOCTRINE, AND
METHODOLOGY
3. Early Choice-of-Law Doctrine and the Traditional

System 45
I. Introduction 45
Detailed Table of Contents xv
II. Choice-of-Law Doctrine before the Twentieth Century 45

A. From Ancient Greece to Medieval Italy 46
B. Bartolus, Statutists, and Unilateralism 47
C. The Dutch Commentators’ and Comity 49
D. Wächter and Savigny: From Unilateralism to
Multilateralism 50
E. The Dearth of English Conflicts Doctrine 51
F. Early American Conflicts Law: Joseph Story 52
III. Joseph H. Beale and the Traditional Choice-of-Law System 53
A. Joseph H. Beale 53
B. Territoriality 54
C. Vested Rights 55
IV. The First Conflicts Restatement 56
A. Some of the Restatement’s Flaws 56
B. The Restatement’s Contributions 57
C. Some of the Restatement’s Specific Rules 58
1. Torts and Contracts 58
D. The Restatement’s Following 60
4. The Structure of Choice-of-Law Rules and the Operation

of the Choice-of-Law Process 63
I. Introduction 63
II. The Choice-of-Law Rule and Its Components 63
III. Characterization 65
IV. Localization 67
V. The Application of the Designated Law and Its Exceptions 68
A. Substance versus Procedure 68
B. Renvoi 73
C. The Public Policy Exception 78
D. The Penal-Law Exception 82
E. The Foreign Tax-Law Exception 85
VI. Domicile 86
VII. Judicial Notice and Proof of Foreign Law 87
xvi Detailed Table of Contents
5. The Choice-of-Law Revolution: Theoretical Groundwork 93

I. Introduction 93
II. The First Critics 94
A. Walter W. Cook 94
B. David F. Cavers 96
III. A Frontal Attack: Brainerd Currie 97
A. Anti-rulism 97
B. The “Domestic Method” 98
C. The Concept of Governmental Interests 98
D. Currie’s Assumptions about State Interests 99
E. False, True and In-Between Conflicts 100
F. Forum Favoritism 103
G. Currie’s Contribution 103
H. The Addendum of Comparative Impairment 105
IV. Result Selectivism: Robert A. Leflar and His “Better Law”
Approach 106
V. Functional Analyses 108
A. Arthur T. von Mehren and Donald T. Trautman 108
B. Russell Weintraub’s Consequences-Based Approach 109
VI. Synthesis and Transition: Willis Reese and the Restatement
(Second) 111
A. Section Six 111
B. The “Most Significant Relationship” 112
C. Rules 113
D. Presumptive Rules 113
E. Pointers 114
F. Ad Hoc Analysis 114
VII. Contemporary Conflicts Scholarship 115
6: The Judicial Revolution in Torts and Contracts 123
I. Introduction 123
II. The Retreat of the Lex Loci Delicti Rule 123
A. Babcock v. Jackson 124
1. Issue-by-Issue Analysis 124
2. Dépeçage 125
Detailed Table of Contents xvii
3. The Distinction between Loss-Distribution and

Conduct-Regulation Issues 125
4. Policy Analysis 126
B. After Babcock 127
III. The Retreat of the Lex Loci Contractus Rule 133
A. Barber, Auten, and the Center of Gravity Approach 133
B. After Auten 135
IV. The Remaining Traditional States 141
7. The Choice-of-Law Revolution Today: Methodological

Pluralism 145
I. Introduction 145
II. Methodological Pluralism 145
A. Methodological Camps 145
B. Caveats 147
C. The Relative Inconsequence of Methodology 150
III. The Restatement (Second) 151
IV. Significant-Contacts Approaches 154
V. New York 155
A. Tort Conflicts 155
1. Neumeier 155
2. Schultz 156
3. Cooney 158
4. Subsequent Cases 160
B. Contract Conflicts 162
VI. Currie-Based Approaches 163
A. Modified Interest Analysis 164
B. Comparative Impairment 165
C. The Lex Fori Variant 168
VII. The Better-Law Approach 170
A. Early Cases: The Biases 171
B. Recent Cases: Eclecticism and De-emphasis of the Better-Law
Factor 173
VIII. “Combined Modern” Approaches 173
xviii Detailed Table of Contents
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 177
2. Babcock and Schultz 179
3. Legislative Sanction 181
a. American Codifications 181
b. Foreign Codifications 182
4. Examples from Each Category 183
a. Conduct-Regulating Rules 183
b. Loss-Distributing Rules 184
B. The Validity of the Distinction: Separating Purpose and Effect 184
C. The Manageability of the Distinction: Identifying the
Primary Purpose 186
D. The Practical Use of the Distinction 188
III. Loss-Distribution Tort Conflicts 190
A. Introduction 190
B. Defining the Typical Patterns 190
1. The Pertinent Contacts 190
2. The Content of the Involved Laws 191
3. The Typical Fact-Law Patterns in Conflicts Involving
Two States 192
C. Common-Domicile Cases Arising from Torts in Another
State 194
1. Pattern 1: The Babcock Pattern 194
2. Pattern 2: The Converse-Babcock Pattern 196
3. Summary 199
4. A Common-Domicile Rule 200
a. A Descriptive Rule 200
b. Statutory and Quasi-Statutory Rules 201
c. Foreign Codifications 202
Detailed Table of Contents xix
5. Cases Analogous to Common-Domicile Cases 203

a. Parties Domiciled in States with Same Law 203
b. Parties to a Preexisting Relationship 204
D. Split-Domicile Cases—Intrastate Torts 204
1. Direct or True Conflicts 204
a. Pattern 3: Split-Domicile Cases in Which the Conduct,
the Injury and the Tortfeasor’s Domicile Are in a State
Whose Law Favors the Tortfeasor 205
b. Pattern 4: Split-Domicile Cases in Which the Conduct,
the Injury and the Victim’s Domicile Are in a State Whose
Law Favors the Victim 208
2. Inverse Conflicts or No-Interest Cases 211
a. Pattern 5: The Neumeier Pattern 211
b. Pattern 6: The Hurtado Pattern 214
c. Summary and Rule 215
E. Split-Domicile Cases—Cross-Border Torts 218
1. Pattern 7: Cases in Which the Conduct and the Tortfeasor’s
Domicile Are in a State Whose Law Favors the Tortfeasor,
while the Injury and the Victim’s Domicile Are in a State
Whose Law Favors the Victim 218
2. Pattern 8: Cases in Which the Conduct and the Tortfeasor’s
Domicile Are in a State Whose Law Favors the Victim, while
the Injury and the Victim’s Domicile Are in a State Whose
Law Favors the Tortfeasor 221
3. Summary and Rules 223
F. Split-Domicile Conflicts Involving Three States 224
G. Summary and Rules for Loss-Distribution Conflicts 227
IV. Conduct-Regulation Conflicts 229
A. Introduction 229
B. Generic Conduct-Regulation Conflicts 229
1. The Pertinent Contacts and Typical Patterns 229
2. Pattern 9: Conduct and Injury in Same State 231
3. Pattern 10: Conduct and Injury in Different States That
Prescribe the Same Standards of Conduct 237
4. Pattern 11: Conduct in State with Higher Standard and
Injury in State with Lower Standard of Conduct 238
xx Detailed Table of Contents
5. Pattern 12: Conduct in State with Lower Standard and

Injury in State with High Standard 242
6. Summary and Rule for Conduct-Regulation Conflicts 247
C. Punitive-Damage Conflicts 249
1. Introduction 249
2. The Pertinent Contacts and Typical Patterns 250
3. Pattern 13: All Three Contacts 252
4. Pattern 14: State(s) of Defendant’s Domicile and Conduct
Impose(s) Punitive Damages 252
5. Pattern 15: State(s) of Conduct and Injury Impose(s)
Punitive Damages 256
6. Pattern 16: State(s) of Injury and Defendant’s Domicile
Impose(s) Punitive Damages 257
7. Pattern 17: Only the Defendant’s Home-State Imposes
Punitive Damages 258
8. Pattern 18: Only the State of Conduct Imposes Punitive
Damages 259
9. Pattern 19: Only the State of Injury Imposes Punitive
Damages 261
10. Pattern 20: None of the Above (Victim’s Domicile or
Domicile) 266
11. Summary and Rule 268
V. Conclusions 269
9. Products Liability 273
I. Introduction 273
A. General 273
B. The Pertinent Contacts 274
1. The List 274
2. Qualifications 275
C. The Content of the Contact-States’ Laws 278
D. Typical Patterns of Product Conflicts 278
II. Direct Conflicts: Cases in Which Each State’s Law Favors the
Local Litigant 279
A. Cases Applying the Pro-Defendant Law of a
Defendant-Affiliated State 280
Detailed Table of Contents xxi
B. Cases Applying the Pro-Plaintiff Law of a Plaintiff-Affiliated State 283

1. Choice Based on Three Contacts 284
2. Choice Based on Two Contacts 290
a. Plaintiff ’s Domicile and Injury 290
b. Injury and Product Acquisition 291
c. Plaintiff ’s Domicile and Product Acquisition 293
3. Choice Based on a Single Contact 295
a. Place of Injury 295
b. Product Acquisition 296
c. Plaintiff ’s Domicile 297
III. Inverse Conflicts: Cases in Which Each State’s Law Favors a
Litigant Affiliated with the Other State 301
A. Cases Applying the Pro-Plaintiff Law of a
B. Cases Applying the Pro-Defendant Law of a
Plaintiff-Affiliated State 308
1. Choice Based on Three Contacts 309
2. Choice Based on Two Contacts 318
a. Plaintiff ’s Domicile and Injury 319
b. Plaintiff ’s Domicile and Product Acquisition 322
c. Injury and Product Acquisition 325
3. Choice Based on a Single Contact 327
IV. Latent Injuries and the Issue of Time 328
V. General Observations 335
A. Summary 335
B. The Role of State Policies and Interests 336
C. The Significance of Contacts 337
D. Choice-of-Law Rules 338
1. Contacts-Based Rules 339
2. Favor Laesi Rules 341
10. Contracts 343

Introduction 343
Part One. Contracts without Choice-of-Law Clauses 343
xxii Detailed Table of Contents
I. The Traditional Approach 343

II. Statutory Rules 346
III. The Uniform Commercial Code (U.C.C) 348
IV. The CISG 349
V. The Restatement (Second) 352
A. Section 188 352
B. Particular Contracts 353
C. Particular Issues 354
D. Application 355
E. Samples from the Cases 355
VI. Other Modern Approaches 358
Part Two. Contractual Choice of Law (Party Autonomy) 361
I. Introduction 361
A. The Principle, Its History and Universality 361
B. The Two Restatements 364
1. The First Restatement’s Rejection 364
2. The Second Restatement’s Endorsement 365
C. The Uniform Commercial Code 366
II. The General Scope of Party Autonomy: A First Look 368
III. Requirements and Limitations 369
A. The Distinction between Waivable and Non-waivable Rules 369
B. Basis for the Parties’ Choice: Substantial Relationship or
Reasonable Basis 370
C. Substantive Limitations: Public Policy 371
1. Which State’s Public Policy? (The Lex Limitativa) 372
a. Lex Fori Systems 373
b. Lex Causae Systems 374
c. Hybrid Systems 376
2. Which Level of Public Policy? 378
IV. The Choice-of-Law Agreement and Its Modalities 379
A. Which Law Determines Existence and Validity 379
1. Capacity 380
2. Consent and Formation 381
3. Form 382
Detailed Table of Contents xxiii
B. Timing of Choice or Change 384

C. Multiple or Partial Choice 386
D. Choice of an Invalidating Law 386
V. The Scope of the Choice-of-Law Clause 388
A. Introduction 388
B. Exempted Contracts or Contractual Issues 389
C. Noncontractual Issues: Torts 391
1. Introduction 391
2. The Case Law 393
3. Critique 399
D. Procedural Issues 400
E. Choice of Conflicts Law 405
F. Choice of Nonstate Norms 406
VI. Party Autonomy and Presumptively Weak Parties 409
A. Introduction 409
B. Comparative Excursus: The Civil Law Model 410
C. The American Model 414
1. Introduction 414
2. Employment Contracts 415
3. Consumer Contracts 422
4. Franchise or Distributorship Contracts 426
D. Conclusions 432
11. Forum Selection Clauses and Arbitration Clauses 435

I. Introduction 435
II. Forum Selection Clauses 435
A. Introduction 435
B. Which Law Governs Forum Selection Clauses? 442
1. Scenario 1: Actions Filed in the Chosen Court 444
2. Actions Filed in a Court Not Chosen (the “Seized” Forum) 445
a. Scenario 2: Contracts without Choice-of-Law Clauses 445
b. Scenario 3: Contracts with Choice-of-Law Clauses 447
(1) Cases Applying Forum Law 448
(2) Cases Applying the Chosen Law 449
(3) Distinguishing between Interpretation and
Enforceability 452
xxiv Detailed Table of Contents
3. Summary and Critique 456

C. Separability of Forum Selection Clause 460
III. Arbitration Clauses 462
A. Domestic Interstate Arbitration 462
1. Introduction 462
2. The Supreme Court’s Strong Pro-Arbitration Stance 465
3. The Lower Courts’ Efforts to Level the Playing Field 468
a. Employment Contracts 468
b. Consumer Contracts 469
4. Separability of Arbitration Clause 472
B. Foreign Arbitration 473
1. The Supreme Court’s Jurisprudence 473
2. Law Governing the Arbitration Agreement 478
a. Contractual Capacity 480
b. Other Issues of Formation of the Arbitration Agreement 480
c. Issues of Scope, Validity, and Enforceability (Other than
Arbitrability) 481
d. Arbitrability 482
e. Public Policy 484
3. Law Applicable in Arbitration 487
12. Insurance Conflicts 493

I. Introduction 493
II. Automobile Insurance 496
III. Commercial Liability Insurance 502
A. Coverage for Environmental Pollution 502
1. The “Uniform Contract Interpretation” Approach 503
2. The “Site-Specific” Approach 505
B. Products Liability Insurance 510
C. Insurability of Punitive Damages 512
IV. Life Insurance 518
13. Statutes of Limitation 523
I. Introduction 523
Detailed Table of Contents xxv
II. The Traditional American System 524

A. The Basic Approach 524
B. Legislative Exceptions: Borrowing Statutes 526
C. Judicial Exceptions 528
D. Current Status 528
III. Modern Approaches 531
A. The New Uniform Act 531
B. New Judicial Approaches 535
C. The New Revision of the Restatement (Second) 539
1. The Text 539
2. Representative Cases 540
3. The Louisiana and Puerto Rico Codifications 544
IV. Summary of State Practices 547
V. Choice-of-Law Clauses and Statutes of Limitations 547
VI. Supreme Court Cases 548
VII. It Is Not an “Either, Or” 551
14. Status and Domestic Relations 553

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

2. International Cases 572
VI. Legitimacy and Filiation 574
VII. Adoption 578

I. Property 581
A. Immovables 581
B. Movables 584
1. In General 584
2. Stolen Movables: Antiquities or Artwork 585
a. The Problem and the Challenge 585
b. Antiquities 588
c. Artistic Property 589
d. Multiple Situses and the Conflit Mobile 592
e. A Proposed Rule 593
f. Annotations to the Rule 594
(1) The Starting Point: The Lex Rei Sitae Originis 594
(2) A Rule for True Conflicts 595
(3) The State of the “Materially Closer Connection” 596
(4) The Good Faith Proviso 597
(5) The Time Element: The Discovery Rule 597
(6) The Discovery Rule and Even-Handedness 598
(7) The Discovery Rule and the Forum’s Statute of
Limitation 599
(8) The Discovery Rule and Non-forum Substantive Law 599
g. Methodological Comments 600
(1) Bridging the Common Law and Civil Law Approaches 600
(2) Substantive Law Solutions to Choice-of-Law Dilemmas 601
II. Marital Property 602
A. Substantive Law 602
B. The Conflicts Problem 603
C. The Problem of Moving Spouses 605
1. From a Separate-Property State to a Community-
Property State 605
a. The Traditional Approach 605
Detailed Table of Contents xxvii
b. The Pure Borrowed-Law Approach 606

c. The Pure Quasi-community Property Approach 606
d. The Louisiana Approach 607
2. From a Community-Property State to a Separate-Property
State 608
3. Recent Cases 609
a. Marital Property Agreements 609
b. Marital Property and Talaq 612
c. Marital Property and Taxes 612
d. Out-of-State Immovables 614
III. Successions 615
A. “Unity” or “Scission” of the Estate 615
B. The Two Restatements 617
C. Legislative Interventions 619
1. Testamentary Form 619
2. Bolder Interventions 620
3. Testator’s Choice 621
16. Conflicts between Federal Law and Foreign Law 625

I. Introduction 625
II. Congressional Power and Its Limits 625
A. International Law Limits 625
B. Constitutional Limits 627
III. Statutes Expressly Applicable to Foreign Events or Persons 628
A. Statutes Applicable to U.S. Citizens Present or Acting Abroad 628
B. Statutes Applicable to U.S. Citizens Injured Abroad 629
C. Statutes Applicable to Persons Acting under Foreign Law 631
D. Statutes Applicable to the High Seas 632
E. Statutes Applicable to Aliens while in the United States 633
F. Interpretation 634
IV. Statutes That Are Silent or Ambiguous on Their Territorial Reach 634
A. Introduction 634
B. The Territorial Presumption: The Early Version 635
C. Foreign Ships and Their Internal Affairs 636
D. Bilateralism: Lauritzen and Maritime Conflicts 641
E. The “Effects Doctrine”: Foreign Conduct with Domestic Effects 644
xxviii Detailed Table of Contents
F. The Territorial Presumption, Again 646

G. The “Effects Doctrine,” Again 646
H. The Effects Doctrine Tempered by Internationalism 648
I. Domestic Conduct with Foreign Effects and The “Headquarters
Doctrine” 650
J. The Territorial Presumption Returns in Full Force 654
1. The Securities Exchange Act 655
2. The Alien Tort Statute (ATS) 658
a. Sosa 658
b. Kiobel 660
c. Post-Kiobel Cases 662
V. A Few Remarks on Methodology 668
PART FOUR • CONCLUSIONS
17. The Next Step 673

I. Introduction 673
A. Where Are We? 673
B. The Revolutionary Status Quo 673
C. The Next Step: Exit and Consolidation 676
D. The Medium: Option One—National Legislation 677
II. Option Two: State Legislation 678

A. The Louisiana Codification 678
1. Goal, Catchphrase, and General Approach 678
2. The Method 680
3. Implementation: Balancing Certainty with Flexibility 681
a. Alternative-Reference Rules 681
b. Soft Connecting Factors 682
c. Escape Clauses 682
d. Rules and “Approaches” 683
e. Issue-by-Issue Analysis 684
4. Operation 686
B. The Puerto Rico Draft Code 688
Detailed Table of Contents xxix
C. The Oregon Codification 688

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

and Conventions 705
Table of Cases 713
Index 779
List of Tables
Chapter 6
Table 1 Chronological Table of Departures from the Lex Loci
Delicti Rule 129
Table 2 The 1960s 130
Table 5 The 1990s and Later 132
Table 6 Chronological Table of Departures from the Lex Loci
Contractus Rule 136
Table 7 The 1960s and before 137
Table 10 The 1990s and Later 139
Table 11 Traditional States 141
Chapter 7
Table 12 Alphabetical List of States and Choice-of-Law
Methodologies Followed 146
Chapter 8
Table 13 Patterns in Loss-Distribution Conflicts Involving Two States 193
Table 14 Common-Domicile Cases Arising from Torts in
Another State 194
Table 15 Loss-Distribution Common-Domicile Conflicts 199
Table 16 Split-Domicile Cases—Intrastate Torts—Direct Conflicts 205
xxxi
xxxii List of Tables
Table 17 Split-Domicile Cases—Intrastate Torts—Inverse Conflicts 211

Table 18 Split-Domicile Cases—Cross-Border Torts 218
Table 19 Patterns in Conduct-Regulation Conflicts 230
Table 20 Patterns in Punitive Damages Conflicts 252
Table 21 Applicable Law in Tort Conflicts 270
Chapter 9
Table 22 The Four Major Patterns of Product Liability Conflicts 279
Table 23 Cases Applying the Pro-Defendant Law of a
Table 24 Cases Applying the Pro-Plaintiff Law of a
Table 33 Victim’s Choices in Product Liability Conflicts 341
Chapter 10
Table 34 Lex Limitativa373
Chapter 13
Table 35 States Following the Traditional Approach in Limitation
Conflicts529
Table 36 Approaches to Limitation Conflicts 547
List of Figures, Charts, and Maps
Chapter 1
Figure 1 Categories of Conflicts 6
Chapter 4
Figure 2 The Possibilities for Renvoi 74
Chapter 6
Chart 1 The Retreat of the Lex Loci Delicti and Lex Loci
Contractus Rules 127
Chart 2 The Revolution in Torts and Contracts 128
Map 1 The Revolution in Tort Conflicts 134
Map 2 The Revolution in Contract Conflicts 140
Chapter 8
Chart 3 Cases Applying Common-Domicile Law 200
Chapter 9
Figure 3 The Pertinent Contacts in Product Liability Conflicts 278
Chapter 10
Figure 4 The Parameters of Party Autonomy 389
Chapter 11
Figure 5 Law Governing Forum Selection Clauses 443
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 infre-
quently, 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
length—what courts say, but especially what they do.
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 book’s principal goals. The reader will
judge whether the book has met that goal.
The book’s 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, I can now muster enough courage to dedicate this book to my Conflicts
teachers, who taught me everything I know 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. I would 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 listed below.
Symeon C. Symeonides, Codifying Choice of Law Around the World: An International
Comparative Analysis (Oxford-New York, 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. 1–19
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 L 177/6.
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, Louisiana’s New Law of Choice of Law for Tort
Conflicts: An Exegesis, 66 Tul. L. Rev. 677 (1992).
Symeonides, Oregon Torts Exegesis: S. Symeonides, Oregon’s 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 law”—namely, the method or process by which one
determines which state’s 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 Laws”—namely,
that branch of the law that aspires to provide solutions to multistate legal disputes between per-
sons or entities (other than states as such). A dispute 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
another state.
Conflicts law consists of three parts:
(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 another state.
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 (1636–1694) 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 “multistate” cases.
1
2 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 (1779–1845) in the nine-
teenth century.3 Each of these names is based on different and debatable assumptions about
the nature, scope, and function of this subject.
A. CONFLICT OF LAWS

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 con-
flicts. 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 state’s 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 this book.
B. PRIVATE INTERNATIONAL LAW

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 subject—t hey are international (or interstate) in the sense that they have con-
tacts 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 disputes—namely, 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 international level.
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 sub-
stantive 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 52–53.
4. See infra note 9.
Introduction 3
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 federal law.
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 court’s assertion of jurisdic-
tion to adjudicate a multistate case does not inevitably lead to the application of the forum state’s
substantive law on the merits. Instead, it is a matter of “choice,” which is controlled by the forum
state’s 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-law rules.
B. CHOOSING VERSUS BLENDING LAWS

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 dif-
ferent 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 of Law].
6. See infra 51.
7. See P. Hay, P. Borchers & S. Symeonides, Conflict of Laws 9–10 (5th ed. 2010) [hereinafter Hay,
Borchers, & Symeonides]; F.K. Juenger, Choice of Law and Multistate Justice 8–10 (1993) [hereinafter
Juenger, Multistate Justice].
4 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 choos-
ing the law of one of the involved states, regardless of the outcome such a choice would pro-
duce 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 SUBSTANTIVIST METHOD

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 inter-
national 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 origi-
nate in international conventions.9 At the interstate level, one very productive source of uni-
form 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 uni-
form 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, 11–16 (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) (dis-
cussed infra 349–52; the Convention on the Limitation Period in the International Sale of Goods
(New York, 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 271–4 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 5
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 selectiv-
ist 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 of laws.
D. ARBITRATION AND ANATIONAL LAW

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 mercatoria—namely, 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 sys-
tematizations, of this privately made “soft law.” Although these nonstate norms are used pri-
marily in arbitration, there is now a push to extend their use in litigation as well.16
11. Arbitration is discussed infra 462–91.

12. See infra 406–09. 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: A Comparative
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 Isn’t, in
Festschrift für 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 Unidroit’s
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.uncit-
ral.org/uncitral/en/about_us.html.
15. See, e.g., O. Lando & H. Beale (eds.) The Principles of European Contract Law Parts I and II (1999);
O. Lando, E. Clive, A. Prüm & 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.
6 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 govern-
ment 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 coun-
tries, on the other hand (state-international conflicts).
Federal-International
United States Foreign countries
State-International
Vertical
State State State

Interstate Interstate
Figure 1. Categories of Conflicts.
Figure 1 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 resolv-
ing these conflicts is not one of choosing between state and federal law, but rather of delineat-
ing 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 for-
eign 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 15–16.

18. See U.S. Const. amend. X, reproduced infra 16.
19. See U.S. Const. art. VI, reproduced infra 18–19.
20. See infra 32–37, 462–91.
Introduction 7
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. citi-
zens. Moreover, in adjudicating conflicts with foreign law, state (or federal) courts may not
interfere with the federal government’s 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 (includ-
ing 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 break-
down 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 excep-
tions, 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 2 percent 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 18–28.
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 17–37.
25. See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003), discussed infra 32–34.
8 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 federal law.
One of the resulting consequences of the federal law’s deference to state law is that, strictly
speaking, the term “American conflicts law” is a misnomer—there 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 constitute—at least
for certain purposes—a single law susceptible to meaningful treatment as such.
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 compre-
hensive choice-of-law legislation—Louisiana 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 provi-
sions 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 stat-
ute 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 asso-
ciation (estado libre associado) with the United States, is also included in this study. For a discus-
sion of this status and Puerto Rico conflicts law, see S. Symeonides, Revising Puerto Rico’s Conflicts
Law: A Preview, 28 Colum J. Transnat’l L. 413 (1990).
28. See infra 678–88.
29. See infra 688–93.
30. As documented in Symeonides, Codifying Choice of Law, 2–34, 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 41–42) (holding
that when a federal court’s 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 court sits).
Introduction 9
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 bound-
aries. 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 George’s 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 New York, injuring
a New York resident.
10 i n t roduct ion
metropolitan area[s]‌”36 that defy state boundaries. Indeed, in retrospect, many state boundar-
ies 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 the world.
Beyond tort conflicts, the relative insignificance of interstate boundaries in the United
States explains why American courts encounter many more interstate conflicts than interna-
tional 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 experi-
ence 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 it right.
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. 1–3 (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 resi-
dents 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 6–8 (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, 1933–1983 (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. & O’Hara, 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 feder-
alism 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 government—legislative
(Article I), executive (Article II), and judicial (Article III)—and “vest” in them their respec-
tive powers. Article I delineates 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
16 The Federal Framework
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 “regu-
late 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 com-
merce, 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 par-
ticular 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. 1–12.

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 Choice of Law 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 prescrib-
ing 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 226 years since the adoption of the Constitution, Congress enacted only five narrow and
brief statutes under the authority of this clause.9 Because of Congress’s inertia, and the Supreme
Court’s 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;11 and
(2) the Due Process12 and Equal Protection13 clauses of the Fourteenth Amendment.14
9. See supra 7, note 23.

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, with-
out due process of law.”). A similar 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 of law.”.
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 295–324; Hay,
Borchers & Symeonides, Conflict of Laws 175–203; and Weintraub, Commentary 654–721. 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
The first clause applies to the public acts and judgments of sister states, the second to “citi-
zens” 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 federal union.
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 pro-
cess 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 CREDIT CLAUSE

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 judi-
cial Proceedings of every other State. And the Congress may by general Laws prescribe
(2007); J.H. Ely, Choice of Law and the State’s 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
Lawyer’s Clause of the Constitution (1945); W.L. Reynolds & W.M. Richman, The Full Faith and Credit
Clause: A Reference 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,
the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect
thereof.18
As the U.S. Supreme Court noted,
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 pre-
clusive 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 congressional power.
The first Congress exercised this power in 1790 by passing a three-sentence statute (modi-
fied slightly in 1804 and 1948). The statute specified the manner of authenticating legislative
acts, records, and judicial proceedings and provided that, “so authenticated,” these docu-
ments “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: A Historical 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, Madison’s Full Faith and Credit Clause: A Historical Analysis, 33 Cardozo L. Rev.
125 (2001).
18. U.S. Const. art. IV § 1.
19. Milwaukee Cty. v. White Co., 296 U.S. 268, 276–77 (1935).
20. 28 U.S.C. § 1738 (2015) (emphasis added).
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 pre-
cede 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 com-
mon 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 com-
pulsion. 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 to Judgments

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 Court’s philosophy about it. Indeed, the Court has aggressively used this clause as a
potent unifying instrument mandating recognition of sister state judgments, even when recog-
nition 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. 56–60 (1981).
24. 28 U.S.C. § 1738 (2015).
25. 210 U.S. 230 (1908).
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 Mississippi law.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
Court’s 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. at 237.

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 juris-
diction, 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-1 court.
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 Men’s Ass’n, 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 against her.
28. 290 U.S. 202 (1933).
the child. However, the Court rejected the dissent’s 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 litigant’s only remedy is to
seek direct review of the judgment from the U.S. Supreme Court—a collateral attack in another
state will not work. These cases indicate the Court’s willingness to use the Full Faith and Credit
clause as an instrument of national uniformity “weld[ing] the [previously] independent states
into a nation”30 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 recog-
nizing an otherwise valid sister-state judgment.
The reason for the Court’s 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 prohibit-
ing 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 Court noted,
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 asser-
tive 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 worker’s 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 estab-
lished 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. Comm’n 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 supplemental award.
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: A Reference 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
For example, in Allgeyer v. Louisiana,33 an insurance dispute arising from a contract made in
New York between a New York insurer and a Louisiana insured, the Court held that the Due
Process clause prohibited Louisiana from imposing certain obligations on the insurer.
Similarly, in New York 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
New York insurer, because the contract was technically “made” in New York.35 The Court did
not give weight to the fact that the insurer had ample contacts with Missouri and had know-
ingly 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 compelled one.
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 worker’s compensation dispute between a Vermont
employer and the survivors of a Vermont employee, even though the actual dispute arose out of
the employee’s fatal injury that occurred in New Hampshire. Again, neither New Hampshire’s
contacts, nor its potential interest in protecting workers injured on its territory, were relevant
considerations for the Court.
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 con-
sideration 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 insured’s 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).
Similarly, in two worker’s compensation cases, Alaska Packers Ass’n 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 worker’s 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 worker’s compensa-
tion 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 worker’s 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 so far.
. . . [T]‌he very nature of the federal union of states, to which are reserved some of the attri-
butes of sovereignty, precludes resort to the full faith and credit clause as the means for compel-
ling 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 conse-
quences of acts within it.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 Minnesota’s “stacking rule,” which provided more
coverage than Wisconsin’s anti-stacking rule. Following Minnesota’s “better law approach,”43
the Minnesota Supreme Court applied Minnesota’s stacking rule. Without approving of that
38. 294 U.S. 532 (1935).

39. 306 U.S. 493 (1939).
40. Id. at 501–05.
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 Thinker’s 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: A Response to the Hague Symposium, 10 Hofstra L. Rev. 1023 (1981).
43. This approach is discussed infra at 106–08.
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 state’s choice of
its own law to multistate cases. According to this test,
[F]‌or a State’s 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 this test.
The first contact was that the deceased insured had worked in Minnesota on a commut-
ing 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 plural-
ity 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,
“Allstate’s presence in Minnesota gave Minnesota an interest in regulating the company’s insur-
ance obligations insofar as they affected both a Minnesota resident [Mrs. Hague] … and a
longstanding member of Minnesota’s work force—Mr. 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. Hague’s] 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 sepa-
rately, would have sufficed to sustain the choice of Minnesota law,”51 the plurality concluded
44. 449 U.S. at 313.

45. Three justices joined Justice Brennan’s plurality opinion, and two justices joined Justice Powell’s dis-
senting 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 317–18.
48. Id. at 318.
49. Id. at 319.
50. Id.
51. Id. at 320, fn. 29.
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 plurality’s verbal formulation of a single test
for both the Full Faith and Credit and Due Process clauses, although they viewed it as consist-
ing 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 forum’s 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 ques-
tion, 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 frustrated”55 by that application. The dissenters also concluded,
however, that Minnessota did not satisfy the Full Faith and Credit clause because Minnessota’s
“tenuous contacts”56 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 Minnesota’s
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 ques-
tion 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
Minnesota’s refusal to apply Wisconsin law “poses any direct or indirect threat to Wisconsin’s
sovereignty”60 or “any threat to national unity.”61 He also concluded that the Due Process clause
52. Id. at 320 (emphasis added).

53. Id. at 320.
54. Id. at 335–36 (Powell, J., dissenting) (emphasis added).
55. Id. at 336. See also id. at 336–37 (“The risk insured by [Allstate] was not geographically limited… .
The close proximity of [Hague’s 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 rea-
sonable 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. at 337.
57. Id. at 339.
58. Id. at 320 (Stevens, J., concurring).
59. Id.
60. Id. at 325.
61. Id. at 323.
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 ques-
tion from the due process question, although he posed a rather high threshold for both clauses
(“threat to … sovereignty” and “totally arbitrary”). The Court’s merging of the two clauses—or
actually the absorption of the Full Faith and Credit clause into the Due Process clause—is prob-
lematic, although it is understandable in light of the Court’s 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 defendant’s 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 appropri-
ate and effective instrument in ensuring respect for sister state laws. The loss of such an instru-
ment would be more visible in cases in which the choice of the forum’s 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 97 percent of the plaintiffs were domiciled outside Kansas, and 99 percent of the min-
eral 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 busi-
ness” in Kansas, and the Court recognized Kansas’s “interest in regulating [defendant’s] 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 essen-
tially the same facts as Shutts, in which the Court held that Kansas did not have enough con-
tacts 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. at 325.

63. For example, the application of the law of the state of incorporation to the internal affairs of corpora-
tions might serve such a national policy, although the choice of another state’s 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 situation—namely, when the forum has a shorter statute of limitations barring an
action that is not barred in the other state—the Court had earlier approved the application of the forum’s
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 proce-
dural 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 of Jurisdiction

and Choice of Law
As the above review of the cases indicates, the Supreme Court has moved from an interven-
tionist 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 Court’s attention and intervention. In
contrast, toward the end of the century, the wide divergence of opinion brought by the revolu-
tion 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 problem-
atic 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 forum’s courts from
the burden of hearing old claims.
68. Wortman, 486 U.S. at 726.
69. Id. Wortman is discussed again infra at 548–51.
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.
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 adju-
dicating 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 corpora-
tions. Through these rulings, the Court sought to ensure that a state would not assert jurisdic-
tion, 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 constitution-
ally to sustain the application of the forum’s substantive law.
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 look-
ing 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 defendant’s contacts with
the forum were such that subjecting him to litigation in that state would not be unfair. The
Hague test asks whether the defendant’s contacts with the forum were such that the application
of the forum’s 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 defendant’s con-
sent 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 empower—much less justify—the 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. at 316.
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 pres-
ence of the defendant’s 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 corporation’s 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 permis-
sible 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 con-
tacts 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 defendant’s voluntary and planned
visit to California, the assertion of jurisdiction by California passed muster under International Shoe.
satisfies the Hague test and, together with other contacts, it contributes to satisfying the juris-
dictional test.80 However, a choice-of-law clause alone may not satisfy the jurisdictional test.
Similarly, the Hague test is different from the choice-of-law inquiry. The Hague test deter-
mines whether the application of a state’s 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 Leflar’s “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 opinion noted,
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 Court’s 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 union—specifically
in light of the purpose of this clause, which was to “fuse into one Nation a collection of inde-
pendent, 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. Leflar’s approach is discussed infra at 106–08.
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 plurality’s judgment. It is not this Court’s 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 331–32 (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, 548–50 (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).
accord residents and nonresidents equal treatment.”85 As another court put it, this clause pro-
tects “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 State’s objective.87
The Supreme Court has held that the clause protects access to the state’s 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 resi-
dents 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 execu-
tive 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 Comm’n 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.
95. U.S. Const. art. I, § 8.
96. U.S. Const. art. I, § 10.
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 not—by executive, legislative or judicial action—intrude into the federal government’s
conduct of foreign affairs; and (2) courts—state or federal—may not interfere with the federal
executive’s 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 Ass’n v. Garamendi.98 In Zschernig, the Court struck down an
Oregon statute on a subject (inheritance) that was entirely within the state’s legislative compe-
tence,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 Court’s 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. Nat’l. Foreign Trade Council, 530 U.S. 363 (2000).
99. In other cases, the Court has held that the federal government’s 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 Swiss–U.S. treaty on inheritance against a Tenth Amendment challenge. Although the states can
be said to have an indirect voice—through the Senate’s advice and consent—in 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. at 432.
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).

In reaching this result, the Zschernig majority employed a test known as “field preemp-
tion.” 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 Nation’s foreign policy.”103
In American Insurance Ass’n 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
Harlan’s 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 govern-
ments, 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 HVIRA’s constitu-
tionality on several grounds. In a five-to-four decision, the Supreme Court held that HVIRA was
unconstitutional because it interfered with the federal government’s 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 Government’s 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 458–59 (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. at 420.
unquestioned, the only question was whether there was a “clear conflict”108 between HVIRA
and the exercise of federal policy. The Court found “a sufficiently clear conflict to require find-
ing preemption.”109
The Court characterized HVIRA as “an obstacle to the success of the National Government’s
chosen ‘calibration of force’ in dealing with the Europeans using a voluntary approach.”110
California’s indiscriminate disclosure provisions diminished the effectiveness of the president’s
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 fist”112 by
making exclusion from a large sector of the American insurance market the automatic sanc-
tion for noncompliance with its policies. Regardless of which approach was wiser, California’s
approach had to give way because: it (1) “undercut[] the President’s 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 California’s HVIRA.114 In Gerling Global
Reinsurance Corp. of America v. Gallagher,115 the 11th Circuit struck down a similar Florida stat-
ute 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 state’s 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 contacts”116 between Florida and the insurers.117
108. Id. at 421.

109. Id. at 420.
110. Id. at 425.
111. Id.
112. Id. at 427.
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 State’s interest.” Id. at 425. The Court found California’s
interest weak because HVIRA’s highly targeted disclosure requirements undercut California’s 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 national total.
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.
2. Executive versus Judicial Function

The principle that courts, federal or state, should refrain from interfering with the federal exec-
utive’s conduct of foreign affairs finds expression in several interrelated and sometimes over-
lapping 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 inter-
national 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 tak-
ing 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 diversity cases.
118. The political question doctrine is a subcategory of the doctrine of non-justiciability—a 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 gov-
ernment. 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, 20–21, 55–56, 810–11 (5th ed. 2011).
119. American Law Institute, Restatement (Third) of Foreign Relations Law §443 (1987).
120. 168 U.S. 250 (1897).
121. Id. at 252.
122. 376 U.S. 398 (1964).
123. Id. at 428.
124. Id. at 427.
This doctrine has been described as a “limitation on the exercise of … adjudicatory juris-
diction … [as] a mechanism of judicial abstention to allow the judiciary prudentially to avoid
litigating a foreign sovereign’s 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 Court’s 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 bind-
ing on federal and state courts alike.’ ”128 After reiterating the obligation of American courts to
decide cases properly presented to them, the Court said:
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 sov-
ereign 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 rec-
ognized with regard to a foreign state’s sovereign or public acts, but not its private acts.
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 juris-
diction 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, Reporter’s Note 1.
127. 493 U.S. 400 (1990).
128. Id. at 406 (quoting from Sabbatino, emphasis in original).
129. Id. at 408.
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, 797–857 (5th ed. 2011).
131. 28 U.S.C.A. § 1602 et seq. (2015).
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 noncom-
mercial 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 fed-
eral 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 231–361.
133. See 28 U.S.C.A. § 1605(a)(2) (2015) (authorizing jurisdiction over actions “based upon a commer-
cial 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, Erie’s Four Functions: Reframing
Choice of Law in Federal Courts, 89 Notre Dame L. Rev. 579 (2013); S. Fruehwald, Choice of Law in
Federal Courts: A Reevaluation, 37 Brandeis L.J. 21 (1998–1999); 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. & Pol’y 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 Nat’l. Bank, 299 U.S. 109
(1936).
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 state’s 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 court’s 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 of cases.
B. LAW APPLIED IN DIVERSITY CASES

1. Substantive Law
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 650–51.
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 Decision Act.
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 inde-
pendently from state court decisions to the same effect.
Almost a century later, the Court overruled Swift, in Erie Railroad Co. v. Tompkins,145 hold-
ing 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 mat-
ters of general commercial law. The Court based its overturning of Swift partly on constitu-
tional 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 oppor-
tunities 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 state-
ment must be limited to diversity cases that do not involve a subject falling within the lawmak-
ing 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 gov-
ernment, 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, Erie’s 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 Erie—And Its Eventual Demise, 10 J.L. Econ. &
Pol’y 225 (2013); C. Green, Erie and Problems of Constitutional Structure, 96 Cal. L. Rev. 661 (2008); M.S.
Green, Erie’s 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 Erie—The 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. & Pol’y
17 (2013).
146. Erie, 304 U.S. at 78 (emphasis added).
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. Procedural Law
The Conformity Act of 1872 required federal courts to follow “as near as may be, … the prac-
tice, 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 pro-
mulgated the Federal Rules of Civil Procedure.151 These rules, as subsequently amended, apply
in federal courts to date.
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 separat-
ing “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 pur-
poses.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: A Structural 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).
154. See infra 68–73.
155. For discussion, see Hay, Borchers & Symeonides, Conflict of Laws 207–34; E.C. Dudley, Jr. & G.
Rutherglen, Deforming the Federal Rules: An Essay on What’s Wrong with the Recent Erie Decisions, 92
Va. L. Rev. 707 (2006); C.D. Floyd, Erie Awry: A Comment on Gasperini v. Center for Humanities, Inc.,
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 limita-
tions qualifies as substantive for Erie purposes,156 although most states consider it procedural
for choice-of-law purposes.157
3. Choice of Law
Three years after Erie, the Supreme Court extended Erie’s 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 consider-
ing 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 Erie’s 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 523–47.
158. 313 U.S. 487 (1941).
159. When the federal court’s 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 204–06; 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: A Reevaluation, 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: A Critical
Guide to the Development and Application of the Erie Doctrine and Related Problems, 163 F.R.D. 19
(1995).
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 Texas’s 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 same case.
162. 423 U.S. 3 (1975).

163. Id. at 4.
164. Many states provide for a process known as “certification,” under which a federal court can request
an opinion from the state’s highest court on novel questions of law pending before the federal court.
PA R T T W O
HISTORY, DOCTRINE,
AND METHODOLOGY
three
Early Choice-of-Law Doctrine

and the Traditional System
Proceeding on the premise that one must know the past to understand the present,1 this chap-
ter 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 juxta-
position 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 passé, 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)).
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 TO MEDIEVAL ITALY

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 (436–358 b.c.) argued that the court should uphold his client’s testament because it
conformed to both the law of the testator’s “fatherland” and the law of the forum.5 A compact
between two Greek city-states signed circa 100 b.c. assigned tort claims to the jurisdiction of
the tortfeasor’s home state and subjected them to that state’s 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
Egyptian law.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 official—the praetor peregrinus—with 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. Hellénique de droit européen
531 (1982).
6. See D. Evrigenis, Idiotikon Diethnes Dikaion, 50–51 (1968); A. Grammatikaki–Alexiou, Z. Papassiopi–
Passia & E. Vassilakakis, Idiotikon Diethnes Dikaion, 6–7 (1997).
7. See Juenger, Multistate Justice 7–8.
Early Choice-of-Law Doctrine and the Traditional System 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 Empire’s 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 of law.
By the twelfth century, when the Italian scholars known as Glossators (1100–1250) “re-
discovered” Justinian’s Digest, the social and economic environment had changed dramati-
cally. Although the Digest—supplemented by the new jus commune, or common law, which
was based on the Digest—was 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 (1182–1263) 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 Justinian’s
law. Although Justinian had said virtually nothing explicitly on the subject, Bartolus discov-
ered a way to make it appear that these answers were implicit in Justinian’s Code—in 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 tradi-
tisse 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 10–19; P. Stein, Roman Law in European History 45–49 (1999); De
Nova, Historical and Comparative Introduction to Conflict of Laws, 118 Recueil des Cours 443 (1966–
II). One Glossator, Magister Aldricus (1170–1200), 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 106–08.
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. Int’l 11 (2007); A.P.
Miceli, Bartolus of Sassoferrato, 37 La. L. Rev. 1027 (1977). For translations of Bartolus’s 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. Codex 1.1.1.
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 sen-
tence simply expressed the emperor’s 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 sway”—or 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-à-vis foreign law. If Roman law governs
only those under the emperor’s 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 “selec-
tivist” method for resolving conflicts of laws, a method that brought back the notion of choos-
ing 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 to it.13
Unfortunately but understandably for that time, the statutists’ criteria for classifying a stat-
ute as real or personal relied excessively on the statute’s wording. Subsequent critics derided
this reliance. They seized on one example in Bartolus’s writings in which he argued that, if the
statute’s first words referred to a person (such as a law that said “the first-born son shall suc-
ceed 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 Bartolus’s examples were slightly less subservient to syntax, the criticisms were justified.
11. See Bartolus, Commentarii in Lex Cunctos Populos, supra note 9, at 154, 174–83, 247–75.
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 and—Bartolus postulated—local statutes.
He then proposed that conflicts between these statutes be resolved through the same principles of con-
flicts resolution that he enunciated in discussing the Cunctos populos clause. See Bartolus, Commentarii
in Lex de Quibus, supra note 9, at 163–74. 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.
But this problem could be easily corrected by using more enlightened interpretative meth-
ods that rely on teleology rather than on syntax. Eventually this correction occurred when a
later Commentator, Guy de Coquille (1523–1603), proposed that the classification of statutes
into real or personal should not depend on the wording of the statute, but rather on the pre-
sumed 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 unsuccessful—attempt to delineate the legislative competence of states.
Bartolus, of course, pretended that his delineation was implicit in the supranational law of
Justinian’s 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 state’s
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 understand-
ing that private international law is primarily national law, but also to the notion that a state’s
“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 Currie’s “interest analysis.”14
C. THE DUTCH COMMENTATORS’ COMITY

During the fifteenth and sixteenth centuries, other Italian and especially French scholars, such
as Dumoulin and d’Argentré,15 refined and modified Bartolus’s 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 the world.
In the meantime, Europe had witnessed the emergence of modern nation-states, and Jean
Bodin’s 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 territo-
rial sovereignty. The Dutch answer can be synopsized in one henceforth-famous word—comity.
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
14. See infra 97–105.

15. Charles Dumoulin (1500–1566) 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 d’Argentré (1519–1590) modified Bartolus’s clas-
sification 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 (lex fori).
16. See Jean Bodin, Six livres de la république (1576).
10-page essay, the most famous of these authors, Ulricus Huber (1624–1694),17 postulated the
following three axioms:
(1) The laws of each state have force within the state’s 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 state’s 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 vague—but equally problematic—notion
of “acquired rights” provide concrete guidance as to the circumstances in which the forum will
or will not apply the law of another state.
Huber’s 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. WÄCHTER AND SAVIGNY: FROM

UNILATERALISM TO MULTILATERALISM
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 Wächter (1797–1880),18 who “debunked statutist learning,
exposed the vested rights theory’s circular reasoning, and disparaged the comity doctrine.”19 In
the place of these discarded internationalist doctrines, Wächter proposed an ethnocentric, uni-
lateral 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, Wächter 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 Wächter’s approach had
no followers in Europe, it bears a remarkable resemblance to approaches developed in the sec-
ond half of the twentieth century in the United States, especially Albert Ehrenzweig’s lex fori
approach and Brainerd Currie’s interest analysis.20
17. Huber’s 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, Huber’s De Conflictu Legum, 13 Ill. L. Rev. 375 (1919).
18. See C.G. von Wächter, Über die Collision der Privatrechtsgesetze verschiedener Staaten (pt. 1), 24
Archiv für die zivilistiche Praxis, 230 (1841), (pts. 2–4) 25 Archiv für die zivilistiche Praxis, 1, 161, 361
(1842). For an English commentary and partial translation, see K.H. Nadelmann, Wächter’s Essay on the
Collision of Private Laws of Different States, 13 Am. J. Comp. L. 414 (1964).
19. Juenger, Multistate Justice 32.
20. See infra, 97–105.
The second German author was the great Romanist Friedrich Carl von Savigny (1779–
1861).21 His contribution was both constructive and decisive. Like Wächter, Savigny rejected
the statutist doctrine; but, unlike Wächter, 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 relation-
ships,” 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, con-
tracts, 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 state’s actual or imputed “wish” to apply its law, and regardless of that law’s content. These
rules also placed foreign law on parity with forum law. Indeed, in Savigny’s 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 forum’s interests as such,
but rather to produce “international uniformity of decisions”—a regime that would eliminate
forum shopping altogether because all involved states would apply the same law to a particular
case, regardless of which state’s courts adjudicate the case.
Savigny’s 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 States today.
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 for-
eign locale was situated in England, and thus assumed jurisdiction over cases arising abroad.
Consistent with this fiction, however, the courts applied English law to these cases.
21. Savigny’s contribution to conflicts is contained in the 8th volume of his treatise on Roman law enti-
tled System des heutigen Römischen Rechts (1849). This volume was translated into English by William
Guthrie, under the title Private International Law, A Treatise 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 dis-
putes 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 Justice 23–24.
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 Huber’s 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 Beale’s 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: JOSEPH STORY
The author most responsible for this development was Joseph Story (1779–1845) who, for all prac-
tical purposes, is the intellectual father of American conflicts law. In 1834, Story published his
seminal Commentaries on the Conflict of Laws, which—though not the first American conflicts
book25—was 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 Story’s treatise was the unmistakable influ-
ence of Huber’s 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 within it… .
[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 sovereign will… .
23. See A. Dicey, A Digest of the Law of England with Reference to the Conflict of Laws (1896).
25. As noted earlier, the first American book was Samuel Livermore’s Dissertations. See supra note 4.
[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 foun-
dation 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 inad-
missible, when it is contrary to its known policy, or prejudicial to its interests… .26
Story’s 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 aspira-
tional 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 system-
atize it. Francis Wharton’s one-volume treatise published in 187228 was rich in its discussion
of foreign authorities, especially continental writers, but thin in discussion of American cases.
A course 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 Story’s
principles. Beale was an erudite and prolific scholar, who dominated the American conflicts
landscape for 50 years.29 Not only did he establish the first conflicts course; but he also pub-
lished 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 Beale’s 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, 24–25, 37 (1834).
27. For this influence, see Hay, Borchers & Symeonides, Conflict of Laws 19.
28. See F. Wharton, A Treatise on the Conflict of Laws, or Private International Law: A Comparative View
of Anglo-American, Roman, German, and French Jurisprudence (1872).
29. For a recent assessment of Beale’s 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. (1900–1902). 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. 1–3) (1935).
introduced conflicts courses in their curricula, and, largely because of Beale’s 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 Beale’s
views than a restatement of the case law.
Beale’s 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 that right.
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 jurisdic-
tion 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 Beale’s 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 prevail-
ing, 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. at 45–46.
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. §§ 208–254.
exclusive foundation on which to build the entire system of conflicts law. Beale’s 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 suc-
cession at death.
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 state’s ter-
ritorial 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. VESTED RIGHTS
Regarding the second question, Beale rejected Story’s 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 for-
eign law created a right and then recognizes it under the forum’s 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 and 326.
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, at 53.
flaws,44 the vested rights theory was in some respects a modest advancement from Story’s
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 Story’s
“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 than Story.
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 out-
come (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 OF THE RESTATEMENT’S FLAWS

Beale’s view of conflicts law did not remain unchallenged during his own time, especially from
the then-emerging legal realist school.46 However, Beale’s views prevailed where it mattered
most—in the American Law Institute, which adopted his draft Restatement with virtually no
amendments.47 The academic criticisms continued after the Restatement’s 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) com-
pletely 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 rights—deducing virtually all of its rules from these principles,
44. Beale’s artificial construct was full of holes, but it was no more artificial than the “local law theory”
proposed by Walter W. Cook, one of Beale’s 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 20–21 (1942). Thus, while Beale’s theory
separated foreign law from the rights it created, and then treated them as facts, Cook’s theory simply
recreated the foreign rights under the law of the forum.
45. A. Riles, A New Agenda for the Cultural Study of Law: Taking on the Technicalities, 53 Buff. L. Rev.
973, 992 (2005).
46. Beale’s main critics were three well-known legal realists: Walter W. Cook (1873–1943), Ernest
G. Lorenzen (1876–1951), and Hessel E. Yntema (1891–1966), as well as David F. Cavers (1903–1988),
who was one of Beale’s students. For a summary and assessment of their criticisms, see Symeonides, supra
note 29, at 62–65.
47. For a discussion of the ALI meetings and the whole process and background of adopting the First
Restatement, see id. at 66–74.
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 person’s
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 territo-
riality 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 Restatement’s choice-of-law rules—despite their name—were not designed to choose
among conflicting laws, but instead a priori assigned “legislative jurisdiction” to a particu-
lar 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 Restatement’s
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 from there.
B. THE RESTATEMENT’S 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 Beale’s 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 191–92.
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).
the first Restatements. Because of Beale and the Restatement, the then-prevailing
“pedagogical neglect”52 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 Restatement’s 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-à-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 ensur-
ing 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 OF THE RESTATEMENT’S SPECIFIC RULES

1. Torts and Contracts
The Restatement consists of 625 black- letter sections accompanied by explanatory com-
ments 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, xiii–xiv (1934).
53. F.L. de Sloovère, On Looking into Mr. Beale’s Conflict of Laws, 13 N.Y.U. L.Q. 333, 345 (1936).
“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” sub-
stance “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 promise”57 or the place from which
the acceptance of an offer was sent58—governed 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 Restatement’s 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 permis-
sible 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 Beale’s view, to recognize this power would
be tantamount to granting them a license to legislate.61
2. Property, Marital Property, and Successions

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. at Note.
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 (§§ 223–224); (3) to the validity, effect, and enforcement of
mortgages (§§ 225–231); (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 succes-
sion to land (§ 245), including the right of illegitimate and adopted children to inherit and the extent of
their share (§§ 246–247); and (6) to most issues of testate succession to land, including the validity, effect,
and revocation of a will (§§ 249–250).
chapter reveals that the Restatement’s 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 con-
veyance.”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 husband’s domicile at the time of mar-
riage 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
decedent’s domicile at the time of death.66 This rule was thought to be consistent with the
decedent’s 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 RESTATEMENT’S 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 Restatement’s
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 Restatement’s dictates
by employing various “escape devices,” such as characterization, renvoi, and the public policy
63. See infra 581–83.

64. Restatement (First) §§ 255–257.
65. See id. §§ 289–290.
66. See id. §§ 300–310.
67. See infra 615–19.
68. See Symeonides, Choice-of-Law Revolution 10–11, 37 et seq.
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).
exception.71 As Cavers predicted, “neither [Beale’s] Treatise nor [his] Restatement can mecha-
nize judgment.”72 The first overt departures from the Restatement occurred in 1954, when the
New York 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 Chapters 5–7.
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

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 con-
tractus 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 124–27.
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
Revolution 51–62.
four
The Structure of Choice-of-

Law Rules and the Operation
of the 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 Restatement’s rules
with softer, equivocal, or presumptive rules.
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 prac-
tical issue in the operation of any choice-of-law system—judicial notice and proof of foreign law.
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 142–75; Felix & Whitten, American Conflicts Law 215–94; Weintraub, Commentary
55–128.
63
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 cat-
egory or problem with the state that supplies the applicable law.
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 con-
structed 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-law rule:
(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 the rule.
(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 con-
tent 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 excep-
tions 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-law rules.
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 for-
eign law or laws and the relative dearth of precedent.
Under the First Restatement—as with any system that depends on rigid rules based on a
single connecting factor—characterization played a crucial role in the final outcome, as it deter-
mined 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 court’s
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 end—first 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, espe-
cially 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 Connecticut’s 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 ques-
tion was a lease by which the defendant car owner leased the accident car to another Connecticut
domiciliary, the driver. A Connecticut 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 145–49; Weintraub, Commentary 56–62. For the rest, the American litera-
ture 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 Law—Legal 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 Law—Legal 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).
traffic accident caused by the husband. Wisconsin law allowed the action, while California’s
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 wife’s action.
The long-term importance of these cases was not that they manipulated the characteriza-
tion process, but that, in doing so, they moved the choice-of-law inquiry in more fruitful direc-
tions. 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 break-
throughs 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 par-
ticular 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 charac-
terization question—whether the purpose of those statutes is to regulate the car owner’s 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 con-
ducted 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 Alabama’s 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
Carolina’s lex loci delicti rule, the lower court felt bound to follow the same route and apply
Alabama’s substantive law, which did not allow the action. Rejecting this “logical contortion,”
5. See Symeonides & Perdue, Conflict of Laws 54–55.

6. See Symeonides, Choice-of-Law Revolution 134, 202–03, 221–22, and 224–26.
8. For a summary pf the proposed solutions, see Symeonides & Perdue, Conflict of Laws 56.
9. 358 F.3d 1306 (11th Cir. 2004).
the Court of Appeals reversed. “There is no Catch 22,” said the court, because an Alabama
court should be concerned “solely with Alabama’s 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 pro-
vided 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 Restatement’s 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, deter-
mining 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. Cont’l 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 Oklahoma’s 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 out-
side the forum state as movable or immovable is determined under the lex rei sitae, rather than the lex fori.
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
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 fac-
tor, 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
state’s 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 forum’s 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 impracti-
cal, 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 Chapter 9, infra.
16. See Restatement (Second) § 145.
17. See id. at § 188.
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 151–62; Weintraub, Commentary 62–95; 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).
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 Restatement’s 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 (§§ 603–605),23 limitations
by forum law on the amount of recovery (§ 606), and access to courts (§§ 607–620).
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 New York 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 New York law. Another
example is Grant v. McAuliffe,25 in which the California Supreme Court characterized as proce-
dural 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 “prescrib-
ing 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 exclu-
sive 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 Chapter 12, at 700–01.

21. J.H. Beale, A Treatise on the Conflict of Laws 1599–1600 (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 Chapter 13, infra.
24. 172 N.E.2d 526 (N.Y. 1961).
25. 264 P.2d 944 (Cal. 1953).
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 fol-
lowing 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 evidence”28 (apparently assuming this is a pro-
cedural 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 domicili-
ary 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 Montana’s 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, “Montana’s paramount interest in affording defendants the
fullest protection of Montana law when appearing in its courts and this State’s 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 sub-
stantive, 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. 969 P.2d 920 (Mont. 1998).
30. Id. at 924.
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 state-
ments 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 New York, although it would be inadmissible in Texas; however, the confession was obtained
by a New York police officer and complied with New York 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, 940 P.2d 546 (Wash. 1997), cert. denied, 503 U.S. 1007 (1998) (hold-
ing that the defendant’s 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 Washington law).
Larrison v. Larrison,34 a child custody case, involved the admissibility of a taped tele-
phone call made from Pennsylvania and taped by the recipient in New York. 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 New York 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 pro-
tecting 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 sig-
nificant relationship” to the communication—usually 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 “con-
trary to the strong public policy of the forum.”36
In State v. Heaney,37 the question was the admissibility of the defendant’s 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 sub-
stantive 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. at 898.
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. at 174.
some special reason why the forum policy favoring admission should not be given effect.”39
In Compuware Corp. v. Moody’s Investors Services, Inc.,40 the communication in question—
between a reporter/publisher and his sources—was 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
forum’s pro-admission policy should give way to New York’s 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 New York law when the communication was made, and New York 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 com-
mon 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 profi-
ciency 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 state’s 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 domi-
ciled there, was admissible at a trial in Kentucky, where the defendant was domiciled at the time he alleg-
edly 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 defendant’s 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
New York journalist to appear at a Colorado criminal trial, where she could be compelled to disclose her
confidential sources. The court specifically rejected the dissent’s 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 New York law.
42. See supra 38–41.
43. See Guaranty Trust Co. v. York, 326 U.S. 99 (1945).
44. See infra Chapter 13.
45. 965 F.2d 195 (7th Cir.1992), cert. denied, 506 U.S. 1001 (1992).
by the Federal Rules of Evidence46), or whether it was “substantive” (and thus governed by state
law). In ruling on this issue, Judge Posner said:
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 hap-
pens 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 fail-
ure to fasten one’s 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 forum’s choice-of-law rule refers to the law of another state, a question arises whether
the reference is to that state’s “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 forum’s 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 at 199.
48. Id. at 200.
49. The word is French and derives from the verb “renvoyer,” which means to refer back or to refer fur-
ther. 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, 1065–68 (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
Law—Legal Essays in Honor of Hessel E. Yntema 380 (1961).
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 Figure 2,
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 forum’s 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 Figure 2) is to State X’s conflicts law because “whole law” includes conflicts law.
FORUM STATE STATE X STATE Y

(Domicile) (Situs) (Nationality)
1
3 (transmission)
Conflicts Conflicts Conflicts

Internal law Internal law Internal law
Law Law Law
2 (remission)
4
Figure 2. The Possibilities for Renvoi.
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 ends there.
A second possibility is that State X may refer the matter back to the forum state (vector #2),
if, for example, State X’s choice-of-law rule provides that succession is governed by the law of
the decedent’s 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 X’s choice-of-law rule provides that succession is governed by the
law of the decedent’s 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 civil code.
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 ends there.
Article 5 of the Austrian conflicts codification (1978) offers a good example of these possibili-
ties 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 shall apply.
Underneath all the apparent complexity of the renvoi doctrine lies a very important phil-
osophical 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 A more lenient explanation
is that the Restatement’s 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 Restatement’s 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 con-
cluded that “Maryland ha[d]‌the most significant relationship,”55 apparently because the con-
tract insured property located in Maryland. Adopting a “limited renvoi exception,” the court
held that “Maryland’s 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 com-
munity or separate property was governed by the whole law of Belgium, which was the decedent spouse’s
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. at 1304.
(Second) Conflict of Laws §188 when the place of contracting would apply Maryland law pur-
suant to that test.”56
However, in Erie Insurance Exchange v. Heffernan,57 the same Maryland court rejected the
defendant’s 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 dom-
iciliary. The dispute was between the victim’s 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 admit-
ted that renvoi was a tool of choice—to 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, in part:
(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 prac-
ticability 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 succes-
sions, 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 desir-
able, such as favoring the validity of juridical acts or according a person the status of legiti-
macy.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, 239–242.
61. See, e.g., id. at §§ 260, 261, 263–265.
62. See, e.g., German EGBGB, Art. 4; Swiss PIL codification, Art. 14; Italian PIL codification, Art. 13(3);
Portuguese Civ. Code, Arts 17–19.
(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 forum’s substantive law. As noted earlier, all for-
eign 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 pre-
cisely 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 that state.
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, 477–78 (1993).
64. Mut. Concepts, Inc. v. First Nat’l Bank of Omaha, 495 Fed. App’x. 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) (refer-
ring 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. at 114).
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 ren-
voi 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 Ontario’s
law. We look at Ontario’s choice of law rules merely to determine Ontario’s 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 acci-
dent 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
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 Quebec’s “weak interest in this type of action,”72 the court cited Quebec’s
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 Carolina’s
workers’ compensation statutes required the application of that state’s pro-recovery law. But
the court buttressed that conclusion by noting that, under Virginia precedent, a Virginia court
would have also applied North Carolina law.
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 state’s 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 state’s 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 Restatement’s 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 Restatement’s 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 that law).
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 that law).
71. 702 A.2d 392 (Vt. 1997).
72. Id. at 396.
73. 409 S.E.2d 914 (N.C. 1991).
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 Cardozo’s classic
statement in Loucks v. Standard Oil Co. of New York,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 A mere 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 similar test:
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 New York Court of Appeals reiterated
Cardozo’s classic test and stated:
[N]‌ot every difference between foreign and New York law threatens our public policy. Indeed, if
New York 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 New York 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 forum’s 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 168–71; Weintraub, Commentary 118-25; P. Hay, Comments on Public Policy in Current American
Conflicts Law, in Dietmar Baetge et al. (eds.), Die Richtige Ordnung–Festschrift für R. Kropholler, 89
(2008). Two other exceptions, the penal and the tax exceptions, are discussed infra 82–86.
76. 120 N.E. 198 (N.Y. 1918).
77. Id. at 202.
78. Id.
79. Restatement (First) § 612 cmt. 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]
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 forum’s 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 Cardozo’s 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 wife’s equitable division claims under that law. Under Pakistani law, these assets would
be the husband’s 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 her—neither of which occurred in this case.
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 mari-
tal property because, under Pakistani law, all assets were his separate property. The Maryland
court rejected both arguments. The court held that:
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 husband’s per-
mission, is contrary to Maryland’s 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 incom-
patible 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. D’Avout, Droit international privé § 310 (7th ed. 2013); Y. Loussouarn, P. Bourel &
P. de Vareilles-Sommières, Droit international privé § 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. at 490.
87. Id. at 500–01.
The court noted: “Talaq lacks any significant ‘due process’ for the wife, and its use, more-
over, 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 Pakistan’s 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 Maryland’s 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 follow-
ing 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
Georgia’s 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 differ-
ences between the wrongful death Acts of Georgia and Florida were “sufficient to ren-
der the Florida Act in contravention of Georgia public policy.”91 The difference was that
the Florida Act did not allow recovery for the decedent’s pre-death mental pain and
suffering.92
• The South Carolina Supreme Court found that a Georgia rule that prohibited inter-
spousal 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.
• A conflict 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. at 501.

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. Nat’l. 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 adher-
ence to the doctrine of lex loci delicti today.”). In Mills v. Quality Supplier Trucking, Inc., 510 S.E.2d 280
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 fol-
low 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 forum’s 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 forum’s 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] applica-
tion would violate New Mexico public policy.”98
This use of public policy differs little from its use by modern approaches, under which the
forum’s public policy is an integral affirmative factor in the court’s 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 Currie’s words, interest
analysis “summon[s]‌public policy from the reserves and place[s] it in the front lines where it
belongs.”99 Currie’s 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 pri-
mary 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 question—it is merged into the jurisdictional question.
(W.Va.1998), the same court refused on public policy grounds to apply Maryland’s contributory negli-
gence rule in favor of West Virginia’s 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 Revolution 52–58.
98. Torres v. State, 894 P.2d 386, 390 (N.M. 1995).
99. Currie, Selected Essays on the Conflict of Laws 88.
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).
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 excep-
tion (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 Cardozo’s 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”) for-
eign 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 forum’s “three-strikes” law, a court may include in the
count the defendant’s 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 for-
eign 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 convic-
tions “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 673–74.

104. Loucks v. Standard Oil Co. of N.Y., 120 N.E. 198, 198–99 (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, 5 P.3d 658 (Wash. 2000); Berry v. Morgan,
137 Fed. App’x. 952 (9th Cir. 2005), cert. denied, 546 U.S. 1185 (2006); State v. Keller, 19 P.3d 1030 (Wash.
2001). For cases requiring a convicted sex offender to register his or her residence with the local authori-
ties, even when the conviction was in another state, see Donlan v. State, 249 P.3d 1231 (Nev. 2011); Nolan
v. Fifteenth Judicial Dist. Attorney’s Office, 62 So. 3d 805 (La. Ct. App. 2011), reh’g denied (May 25, 2011),
writ denied, 68 So. 3d 520 (La. 2011); Doe v. O’Donnell, 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. at 388.
110. Id.
111. Id. In re Wilde, 68 A.3d 749 (D.C. 2013) involved the question of whether a South Korean convic-
tion for theft could be the basis for mandatory disbarment under the District of Columbia Bar Rules,
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 state’s 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 Cardozo’s 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
argument yet.
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 forum’s public policy. A draft of what later became Article 26 of the
European Union’s 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. at 62.
112. See S. Symeonides, Resolving Punitive-Damages Conflicts, 5 Ybk. Priv. Int’l L.1, 3 (2003).
113. Loucks v. Standard Oil Co. of N.Y., 120 N.E. 198, 198–99 (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 85–87. 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 substan-
tially 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.”
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 imperii—that is, in the exercise of direct sovereign author-
ity. 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 govern-
ment’s 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 view”121 on whether the
rule bars civil RICO actions by foreign governments.
The Pasquantino defendants were convicted under the federal wire fraud statute for smug-
gling 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, 1476–78. 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 Constitution’s 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 365 n.11.
122. Id. at 366.
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 exam-
ple, 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 tradi-
tional and modern choice-of-law approaches.124 For example, the First Restatement called for
the application of the law of a person’s 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 Chapter 8, 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 one’s 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 at 181.
124. Basic bibliography on domicile includes: Hay, Borchers & Symeonides, Conflict of Laws 285–337;
Felix & Whitten, American Conflicts 253–69; Weintraub, Commentary 16–54.
125. See supra 60.
126. See infra 194–201.
127. Special rules govern the acquisition of domicile by persons of limited capacity, such as minor chil-
dren 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 docu-
mentation of the principles governing domicile, see the sources cited supra, note 124.
“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 dif-
ficult to ascertain what was intended without examining the specific context.
With regard to corporations, a federal statute provides that, for purposes of diversity juris-
diction 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 incorpora-
tion is the critical connecting factor for choice-of-law purposes for matters involving the cor-
poration’s 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 vari-
ous 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 offi-
cio”); 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 the forum.
131. Basic American bibliography on this topic includes: Hay, Borchers & Symeonides, Conflict of
Laws 602–13; Felix & Whitten, American Conflicts Law 269–74; Weintraub, Commentary 125–28;
M.S. Green, Horizontal Erie and the Presumption of Forum Law, 109 Mich. L. Rev. 1237 (2011);
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 ratio-
nales 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 ratio-
nale was the often-fictitious assumption that the unproven foreign law was the same as the
law of the forum.
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-state law.
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]. A party 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 gov-
ernmental 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. Int’l 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, 177 P.2d 461 (Nev. 1947), reh’g denied, 178 P.2d 380 (Nev. 1947).
133. Uniform Interstate and International Procedure Act, 13 U.L.A. 355 (1986).
Rule of Civil Procedure 44.1.134 Initially adopted in 1966, and slightly amended later, Rule 44.1
provides:
Determination of foreign law. A party who intends to raise an issue about a foreign country’s law
must give notice by a pleading or other writing. In determining foreign law, the court may con-
sider any relevant material or source, including testimony, whether or not submitted by a party
or admissible under the Federal Rules of Evidence. The court’s 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 litigant’s 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 American sense,
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 deter-
mining the content of applicable foreign law. It is the court, not the fact-finding jury, that makes
the determination; the court is free—perhaps obliged—to inform itself, and the ruling is then
treated as one on a question of law. A requirement to take “judicial notice” is thus considerably
narrower than the civil law’s 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 forum’s
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 236–40, 22 states
continue to have statutes based on the Uniform Act, and 25 states have statutes paralleling Federal
Rule 44.1.
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), reh’g and reh’g 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), reh’g denied (June 10, 2009), transfer denied (Sept. 24, 2009).
136. Hay, The Use and Determination of Foreign Law, supra note 131, at 223–24.
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 do so.”
of laws unless the parties disagree on which state’s law applies,”138 one court said, while another
court added: “We don’t 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 side’s attorneys, but only rarely does it serve the interests of both sides.
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 court’s satisfaction, that litigant will bear
the adverse consequences.144
The Advisory Committee Notes accompanying Rule 44.1 state, that in determining the con-
tent 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), reh’g 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 con-
tract 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 forum law.
140. See, e.g., Shoen v. Shoen, 292 P.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 dis-
positive issues that depended on forum law); In re Estate of Pullen, 810 N.W.2d 532 (Iowa Ct. App. 2012) (hold-
ing 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), aff’d, 919 A.2d 1116 (Del. 2007) (applying Delaware
law and dismissing the action because plaintiffs failed to prove the content of foreign law).
141. See S. Symeonides, Private International Law at the End of the 20th Century: Progress or Regress?,
6–7 (2000).
142. For exceptions, see Bodum USA, Inc. v. La Cafetière, 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. App’x 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), reh’g denied, review denied
(same regarding Pakistani custody law); Banque Libanaise Pour Le Commerce v. Khreich, 915 F.2d 1000
(5th Cir.1990), reh’g denied (5th Cir. 1990) (same with regard to Abu Dhabi law); Colvin v. Colvin, 291
S.W.3d 508 (Tex. App. 2009) (affirming trial court’s refusal to apply Louisiana’s 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).
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 par-
ties. 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 country’s
145. Federal Rules of Civil Procedure, Rule 44.1.

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. Int’l 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 Cafetière, 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 633–34. 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. at 633.
149. Id. at 638 (Wood, J., concurring).
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 counsel”151 of the pertinent provi-
sions 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 litigant’s case,” such as dismissal of his or her claim (or
defense) or the application of unfavorable forum law.152
150. Id. at 638–39. 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. at 639.
151. Advisory Committee Notes, supra note 135.
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 general—which slows the accumulation of judicial expertise on the subject—is 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 Restatement’s 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.”).
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 (1873–1943), Ernest G. Lorenzen
(1876–1951), and Hessel E. Yntema (1891–1966). Cook’s writings are discussed infra. For Lorenzen’s cri-
tiques, 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 (1923–1924);
E.G. Lorenzen, Validity and Effects of Contracts in the Conflict of Laws, 30 Yale L. J. 565 (1920–1921).
For Yntema’s 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
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, guid-
ing this movement during its early years. The discussion covers the writings of 10 authors: Walter
W. Cook (1873–1943), Robert A. Leflar (1901–1997), David F. Cavers (1902–1988), Brainerd
Currie (1913–1965), Willis L.M. Reese (1913–1990), Arthur T. von Mehren (1922–2006),
Donald T. Trautman (1924–1993), William F. Baxter (1929–1998), Russell J. Weintraub (1929–
2012), and Friedrich K. Juenger (1930–2001). 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 (1873–1943).7 Together with Judge Learned Hand,8 Cook is usually
referred to as the author of the “local law” theory. This theory—which is no more memorable
than the vested right theory Cook intended to displace—was Cook’s attempt to explain the
seemingly paradoxical application of foreign law and reconcile it with the forum’s 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. Cook’s subliminal message was that the
See also R.J. Heilman, Judicial Method and Economic Objectives in Conflict of Laws, 43 Yale L. J. 1082
(1933–1934).
6. For contemporary authors, see infra 115–21.
7. Cook’s 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,
rev’d in part, 269 U.S. 71 (1925).
9. See Cook, supra note 7, at 20–21:
[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 own law.
10. See A. Riles, A New Agenda for the Cultural Study of Law: Taking on the Technicalities, 53 Buff. L. Rev.
973, 996 (2005) (“Cook’s 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 even Beale.
Cook’s 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
Restatement’s professed goals of predictability and uniformity were illusory, because of the
multiple escape devices that judges could and did use. He posited that the Restatement’s seem-
ingly 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 Currie’s conception of the choice-of-law process as one based on
the “ordinary process of construction and interpretation.”17 Cook’s 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 cri-
tique, see F.L. de Sloovère, 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 intel-
lect 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, at x.
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 Cavers—a Cook ally and Beale critic—acknowledged that “Cook d[id] not offer a sub-
stitute 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 Cook’s 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 note 7.
17. See Currie, Selected Essays on the Conflict of Laws 183–84 (1963), discussed infra 98.
material justice in the pursuit of “conflicts justice.”18 Moreover, Cook’s admonition that one
should consider legislative purposes and policies “before a wise choice between conflicting
rules can be made”19 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 (1902–1988), who at that time shared many of Cook’s 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 exclu-
sive 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 Currie’s interest analysis (discussed below), he disassociated himself from Currie’s
“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 Currie’s rejection
of all choice-of-law rules was ill-advised. Cavers saw the need for providing judges with suf-
ficiently 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 princi-
ples.23 The fact that he was one of the first and most effective critics of the blind and mechanical
18. See infra 106–08.

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. at 189.
22. D. Cavers, The Choice of Law Process (1965).
23. Id. at 134, 139.
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 Cavers’s ver-
sion did not base the choice of law solely on a state’s territorial contacts, but rather on the pres-
ence of the “right” combination of contacts and laws.
For example, his first principle for torts covered situations in which the injury is in one
state and either the conduct or the tortfeasor’s 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 victim’s 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 victim’s 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 (1913–1965) 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 follow-
ing 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 concep-
tion 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. at 139.

25. Id. at 146.
27. These articles are collected in Currie, Selected Essays on the Conflict of Laws (1963).
28. Id. at 180.
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.”).
Although this is the least noticed and criticized of Currie’s 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
Currie’s 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 conse-
quences, 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 legisla-
tive jurisdiction of each state. He believed that, in searching for choice-of-law solu-
tions, 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
applicable law;
(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, Currie’s approach—like Cavers’s—
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 spatial reach.
C. THE CONCEPT OF GOVERNMENTAL INTERESTS

According to Currie, whenever a case falls within a law’s 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 Currie’s words, an “interest …
is the product of (1) a governmental policy and (2) the concurrent existence of an appropri-
ate relationship between the state having the policy and the transaction, the parties, or the
30. Id. at 184.

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 state’s 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.”).
litigation.”32 In this way, Currie projected his legal-realist conception of law as “an instrument
of social control”33 at the interstate level, by postulating that states have an interest in the out-
come of litigation between private parties.
D. CURRIE’S 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 prom-
inently 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
Currie’s partisan articulation of this concept. He thought and wrote in terms of a state’s yearn-
ing to maximize its gains at the expense of other states’ policies, rather than in terms of a state’s
need to avoid impairment of its own strongly held policies. Indeed, as we shall see later,36 the
main problem with Currie’s 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 state’s “multistate” interests—namely, interests that, though
not reflected directly in a state’s domestic law, stem from the state’s membership in a
broader community of states;37
(2) Currie assumed that, in the vast majority of cases, a state has an interest in apply-
ing 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 philosophi-
cal trends on American choice-of-law thinking, see S. Symeonides, An Outsider’s View of the American
Approach to Choice of Law: Comparative Observations on Current American and Continental Conflicts
Doctrine 202–34 (1980).
34. See Bradford Elec. Light Co. v. Clapper, 286 U.S. 145 (1932); Alaska Packers Ass’n v. Indus. Accident
Comm’n, 294 U.S. 532 (1935); Pacific Empr’s Ins. Co. v. Indus. Accident Comm’n, 306 U.S. 493 (1939). See
also Watson v. Empr’s 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 privé, 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, 180–182 (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 compul-
sion 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.
benefit similarly situated non-domiciliaries38 (a notion referred to hereafter as Currie’s

“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 Currie’s approach was constitution-
ally infirm.40 Curried anticipated and responded to that charge,41 but the real problem with
Currie’s 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 Currie’s 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 691–721 (arguing
that New York’s unlimited compensatory-damages law “is not for the protection of all who buy tickets
in New York, or board planes there. It is for the protection of New York people.”); id. at 724, and 85–86
(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 inter-
ests 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 State’s 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 123–26, 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, 280–81, 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 Currie’s 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, 1851–67 (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
To be sure, whether a conflict falls into one or the other categories is a question that dif-
ferent 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 par-
ticular 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 its law.
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 Currie’s analysis is neither con-
troversial 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 tradi-
tional 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, Currie’s
solution to an admittedly false conflict can effectuate the policies of an interested state without
sacrificing any policies of an uninterested state.
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 Currie’s 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 Currie’s only contribution to conflicts theory, it would be
sufficient to secure him a permanent position in the conflicts “Hall of Fame.”
However, Currie’s solutions to the other categories of conflicts are questionable. Under
Currie’s analysis, true conflicts are to be resolved by the application of the law of the forum,45
because a court may not subordinate the forum’s 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 reason-
able 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, I have proposed substituting the term “direct conflict” for Currie’s true conflict cat-
egory, and the term “inverse conflict” for Currie’s unprovided-for category. See Symeonides, Choice-of-
Law Revolution 162–63, 272–73.
45. A true 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 situa-
tion, Currie argued that the court should dismiss on forum non conveniens grounds, and, if such dis-
missal 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.” Currie’s summary, reproduced in S. Symeonides & W. Perdue, Conflict of
Laws: American Comparative International, 138–39 (3d ed. 2012).
46. See B. Currie, Comments on Babcock v. Jackson—A Recent Development in Conflict of Laws, 63
Colum. L. Rev. 1233, 1237–38 (1963) (“In the absence of action by higher authority, each state must be con-
ceded the right to apply its own laws for the reasonable effectuation of its own policies.”) (emphasis added).
interests, and they should not be put in the position of potentially subordinating the forum’s
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 Currie’s 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 conflict-
ing social policies.49 Currie’s explanation also contradicts the basic tenets of his theory, which in
all other respects assumes an activist judge. For example, according to Currie’s 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 Currie’s 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 differ-
ent from weighing those interests.52 He was not persuasive.53
Finally, under Currie’s analysis, the law of the forum applies to his third category of conflicts—
the “unprovided-for” or “no-interest” cases—even 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 278–79, 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 sac-
rifices forum interests.” F. Juenger, Choice of Law in Interstate Torts, 118 U. Pa. L. Rev. 200, 206–07 (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 Currie’s interest language have transformed it by
indulging in that very weighing and balancing of interest from which Currie refrained.”). Currie’s 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 Currie’s analysis, “[w]‌eighing of interests after interpretation is condemned: weigh-
ing 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 763–64.
52. See Currie, supra note 27, at 759:
[T]‌here is an important difference between a court’s 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 cor-
rection 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 Currie’s 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 “Currie’s proscription of interest weighing seems to strike at the heart of the judicial process.”).
a disinterested state. Currie’s 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 underlying it.
F. FORUM FAVORITISM

In sum, under Currie’s 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, to wit:
(1) in a false conflict in which the forum is the interested state;

(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 philo-
sophical.56 Many commentators remained unpersuaded. As one of them noted, “Currie’s analysis,
which compels him to give to the forum’s law such broad effects, would tend to fasten upon the inter-
national and the inter-state communities … a legal order characterized by chaos and retaliation.”57
G. CURRIE’S CONTRIBUTION

Currie lived for only 52 short years. But, as one of his contemporaries wrote at the time, “[i]‌n
his curtailed lifetime, Brainerd Currie’s achievements were of a brilliance and variety sufficient
to have conferred eminence on the lives of several men.”58 He “transformed through his schol-
arship the field of conflict of laws.”59
54. Currie, supra note 27, at 152–56.

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, 93–94, 191, 197, 278–80, 323, 447, 489–90, 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 Ass’n of Law Schools, Proceedings, Part I—Report of Committees 123 (1965),
quoted in E.R. Latty, Brainerd Currie—Five 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.”).
Indeed, Currie’s 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 Beale’s teachings had indoctrinated the previous generation.62
Currie’s 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 popu-
lar 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, Currie’s critics66 clearly outnumber his defenders,67 old and new.68 Although
there is much to criticize in Currie’s theory, there is also much that deserves praise. Some of
60. The intense academic interest in Currie’s 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
Int’l 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: A Critique, 83 Colum. L. Rev. 772, 812 (1983).
62. In the words of one of Currie’s harshest critics, “the single most influential American book on the
conflict of laws published during the twentieth century was not Joseph Beale’s three-volume treatise
or Ernst Rabel’s monumental four-volume comparative study, but Currie’s collection of … articles.” F.
Juenger, Selected Essays on the Conflict of Laws, vii–viii (2001).
63. F.K. Juenger, Conflict of Laws: A Critique of Interest Analysis, 32 Am. J. Comp. L. 1, 4 (1984).
64. See C. Peterson, Restating Conflicts Again: A Cure 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 laws—even 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, Currie’s American critics include: E. Bodenheimer,
The Need for a Reorientation in American Conflicts Law, 29 Hastings L.J. 731 (1977–1978); 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 Emperor’s Clothes?, 1 Hofstra L. Rev. 104 (1973).
67. See, in particular, H. Kay, Currie’s Interest Analysis in the 21st Century: Losing the Battle, but
Winning the War, 37 Willamette L. Rev. 123 (2001); H. Kay, A Defense of Currie’s 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: A Response to Professor Brilmayer’s “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 (1982–1983); 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 Currie’s Contribution to Choice of Law: Looking Back,
Looking Forward, 65 Mercer L. Rev. 501 (2014); Simson, supra note 59. at 716.
Currie’s critics have focused more on debunking his theory than on separating its tenable ele-
ments from the untenable ones. Even if the latter elements outnumber the former, Currie’s
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 conflicts law.
In fact, Currie did much more. In particular:
(1) Currie’s basic premise—namely, that states have an interest in the outcome of multi-
state disputes between private persons—accurately reflects contemporary realities;
(2) However, Currie’s 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 categories—false conflicts, true conflicts, and “no inter-
est” cases—and 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 OF COMPARATIVE IMPAIRMENT

Professor William F. Baxter (1929–1998) 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 Currie’s 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 objectives—the “inter-
nal” and the “external.” Internal objectives are those underlying each state’s resolution of con-
flicting private interests in wholly domestic situations. The external objectives embody each
state’s 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, 5–6, 18–19. Echoing Currie, Baxter stated that weighing of interests involves super-value
judgments that are incompatible with the judge’s “non-political status.”
72. Id. at 8–9.
73. See infra, 165–68.
purposes.”74 In a true conflict, ex hypothesi, this external objective conflicts with the correspond-
ing 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 state’s
interest, one cannot avoid the conclusion that comparative impairment does weigh the inter-
ests. 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 acknowl-
edges 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 solution”77 (“conflicts justice”), rather than “the materially best solution”78
(“material justice”).79
In contrast, Professor Robert A. Leflar (1901–1997) was among the first proponents of the
material-justice view in the United States.80 In two successive law review articles published
74. Id. at 18.
75. Id.
76. For a different perspective on comparative impairment, see W. Allen & E. O’Hara, Second Generation
Law and Economics of Conflict of Laws: Baxter’s 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, 616–17 (1979).
78. Id.
79. For a discussion of these concepts in American conflicts law, see S. Symeonides, Choice-of-Law
Revolution 404–01. For a discussion of the same concepts in international conflicts law, see S. Symeonides,
Codifying Choice of Law 245–88.
80. Another prominent proponent of this view was Professor Friedrich K. Juenger (1930–2001). See F.K.
Juenger, Choice of Law and Multistate Justice 145–73, 191–208 (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 problems—the 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 today’s multistate cases, the court should construct
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 forum’s governmental interest, and (5) the application of the “better
rule of law.” Leflar argued that, by using these considerations, “courts can replace with state-
ments 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 Leflar’s 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, noth-
ing 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 revolution’s early years), while paying lip service to the
other four. Moreover, but for the better-law criterion, Leflar’s list differs little from the lists
proposed by others,84 or from the list of Section 6 of the Restatement (Second). Consequently,
Leflar’s 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 Juenger’s 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
Conflicts Law).
82. Leflar, Conflicts Law, supra note 81, at 1585. As the word “better” indicates, Leflar envisioned choos-
ing, between or among the laws of the involved states, the one law that is better. Thus, although unconven-
tional in one sense, Leflar’s approach is conventional in another sense—it 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, 11–16 (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,
483–84 (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 litiga-
tion 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 56–62; H. Baade, Counter-Revolution or
Alliance for Progress?, 46 Tex. L. Rev. 141, 155ff. (1947); D. Cavers, The Value of Principled Preferences, 49
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 subjectiv-
ism. 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 (1922–2006) and Donald T. Trautman (1924–1993)
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 approach’s
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 measur-
ing 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 state’s 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, 212–13, 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, 952–53 (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, Leflar’s
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 Judge’s 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 298–99 (“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.”).
88. See infra 170–73.
89. See A. T. von Mehren & D. T. Trautman, The Law of Multistate Problems, 76, 102–05, 109–15, 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 376–406.
all other factors being equal, the court should prefer an emerging policy, rather than a regress-
ing 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 poli-
cies, 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.
A neutral forum, in contrast, should not apply its own law, but it may apply the rule of a con-
cerned state that most closely approximates the forum’s 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 WEINTRAUB’S

CONSEQUENCES-BASED APPROACH
In his early writings, Professor Russell J. Weintraub (1929–2012) 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 406–08.
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 state’s strict-liability
law and another state’s 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, 367–69 (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, Weintraub’s criteria included: (1) the advance-
ment 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
result-oriented rules—a plaintiff-favoring rule for non-false tort conflicts,95 and a “rule of vali-
dation” 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 state’s 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 impair-
ment,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 similar cases.
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 defendant’s actual or intended course of conduct to
make application of its law reasonable”).
96. See id. at 397–98.
97. R. Weintraub, Commentary on the Conflict of Laws 356 (4th ed. 2001).
98. See id. at 347 et. seq.
99. Id. at 347.
100. Id. at 350.
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. at 407.
105. Id. at 355.
106. Id. at 417.
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 criti-
cism against it. The task of Reporter was assigned to Professor Willis L.M. Reese (1913–1990),
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). A cursory glance at the successive
versions of what eventually became Section 6 of the Restatement (Second) reveals an evolution
in the Reporter’s 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. SECTION SIX
The Restatement (Second) consists of 423 black-letter sections, accompanied by explanatory com-
ments, illustrations, and Reporter’s notes, and arranged in 14 chapters covering all parts of con-
flicts law—jurisdiction, 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 of law.
The cornerstone of the Restatement (Second) is Section 6. It is a paradigmatic example of
an “approach”—namely, 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 applicable law:
(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

Restatement’s 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 Currie’s interest analysis and the Restatement (Second) is most appar-
ent in the varying degrees of sensitivity toward “the needs of the interstate and international
107. Restatement (Second) § 6(2).

systems” and the need for “uniformity of result.” To Currie’s 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 analysis—which Currie conceived from the perspective of the forum
judge confined to the role of the “handmaiden” of the forum legislature—the 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 relationship”—a term that evokes
jurisdiction-selecting notions—the 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 con-
stantly 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 process—to 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 Savigny’s “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 dépeçage.113 Furthermore, as
noted above, the Restatement’s 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. at § 145.
112. See S. Symeonides, Codifying Choice of Law 176–88.
113. For the role of dépeçage in foreign codifications, see id. at 224–44. For its role in American conflicts
law, see S. Symeonides, Issue-by-Issue Analysis and Dépeçage in Choice of Law: Cause and Effect, 45 U.
Tol. L. Rev. 751 (2014).
Finally, although acoustically the Restatement’s 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 differ-
ence between the Restatement and one of its precursor movements—the “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 relation-
ship.115 In cases involving land and other immovables, the applicable law is almost invari-
ably 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 sub-
ject 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
situs state.
D. PRESUMPTIVE RULES
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 cer-
tain 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 appli-
cable 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 154–55.

115. See Restatement (Second) §§ 260–265 (succession to movables); §§ 245–255 (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, 225–232 (inter vivos transactions involving land); §§ 236, 239–242 (succession to
land). This phrase is often accompanied by the prediction that these courts “usually” will apply their
own law.
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. §§ 146–151, 153–155, and 175. In the area of contract conflicts, the “unless” clause
appears in most of the sections devoted to particular contracts. See, e.g., §§ 189–193, 196.
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 pro-
vide 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 usu-
ally be the local law of the state of the parties’ domicil”;120 and only the remaining seven sec-
tions 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 person’s 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 for-
malities 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 assump-
tion 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 section—“the 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, 170–171, and 173–174.
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: A Mixed Blessing,
56 Md. L. Rev. 1248, 1263 (1997).
interested states.”127 It seems then that the former type of practice differs little from the “group-
ing 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 crit-
icized 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. O’Hara & L. Ribstein,
The Law Market (2009); E. O’Hara (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. O’Hara
& L. Ribstein, Rules and Institutions in Developing a Law Market: Views from the United States and
Europe, 82 Tul. L. Rev. 2147 (2008); E. O’Hara & L. Ribstein, From Politics to Efficiency in Choice of
Law, 67 U. Chi. L. Rev. 1151 (2000); E. O’Hara, Opting Out of Regulation: A Public Choice Analysis of
Contractual Choice of Law, 53 Vand. L. Rev. 1551 (2000); E. O’Hara, 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. Rühl, Methods and Approaches in Choice of Law: An Economic Perspective, 24 Berkeley J. Int’l
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: A Jurisprudence 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. Transnat’l 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: Juenger’s 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. Int’l L. 93 (2010);
P. Borchers, Conflict-of-Laws Considerations in State Court Human Rights Actions, 3 U.C. Irvine L. Rev.
45 (2013).
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 State’s Interests, 24 Cornell Int’l L.J. 233 (1991); L. Brilmayer, Rights,
Fairness, and Choice of Law, 98 Yale L.J. 127 (1989); L. Brilmayer, Shaping and Sharing in Democratic
Theory: Towards a Political Philosophy of Interstate Equality, 15 Fla. St. L. Rev. 389 (1987); L.
Brilmayer, Methods and Objectives in the Conflict of Laws: A Challenge, 35 Mercer L. Rev. 555 (1984);
L. Brilmayer, Interest Analysis and the Myth of Legislative Intent, 78 Mich. L. Rev. 392 (1980); L.
Brilmayer, The New Extraterritoriality: Morrison v. National Australia Bank, Legislative Supremacy,
and the Presumption against Extraterritorial Application of American Law, 40 Sw. L. Rev. 655 (2011).
132. See H. Buxbaum, Conflict of Economic Laws: From Sovereignty to Substance, 42 Va. J. Int’l L. 931
(2002); H. Buxbaum, Transnational Regulatory Litigation, 46 Va. J. Int’l L. 251 (2006); H. Buxbaum,
Multinational Class Actions under Federal Securities Law: Managing Jurisdictional Conflict, 46 Colum.
J. Transnat’l L. 14 (2007); H. Buxbaum, Mandatory Rules in Civil Litigation: Status of the Doctrine
Post-Globalization, 18 Am. Rev. Int’l Arb. 21 (2007); H. Buxbaum, Territory, Territoriality, and the
Resolution of Jurisdictional Conflict, 57 Am. J. Comp. L. 631 (2009); H. Buxbaum, National Jurisdiction
and Global Business Networks, 17 Ind. J. Glob. Leg. Stud. 165 (2010); H. Buxbaum, Remedies for Foreign
Investors under U.S. Federal Securities Law, 75 Law & Contemp. Probs. 161 (2012); H. Buxbaum, Class
Actions, Conflict and the Global Economy, 21 Ind. J. Glob. Leg. Stud. 585 (2014).
133. See D.E. Childress, Comity as Conflict: Resituating International Comity as Conflict of Laws, 44
UC Davis L. Rev. 11 (2010); D.E. Childress, The Alien Tort Statute, Federalism, and the Next Wave of
Transnational Litigation, 100 Geo. L.J. 709 (2012); D.E. Childress, When Erie Goes International, 105
Nw. U. L. Rev. 1531 (2011); D.E. Childress, Forum Conveniens: The Search for a Convenient Forum in
Transnational Cases, 53 Va. J. Int’l L. 157 (2013); D.E. Childress, Rethinking Legal Globalization: The Case
of Transnational Personal Jurisdiction, 54 Wm. & Mary L. Rev. 1489 (2013); D.E. Childress, Escaping Federal
Law in Transnational Cases: The Brave New World of Transnational Litigation, 93 N.C. L. Rev. 995 (2015).
134. See A. Colangelo, The Legal Limits of Universal Jurisdiction, 47 Va. J. Int’l L. 149 (2006); A. Colangelo,
Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of National and
International Law, 48 Harv. Int’l L.J. 121 (2007); A. Colangelo, De Facto Sovereignty: Boumediene
and Beyond, 77 Geo. Wash. L. Rev. 623 (2009); A. Colangelo, Double Jeopardy and Multiple
Sovereigns: A Jurisdictional Theory, 86 Wash. U. L. Rev. 769 (2009); A. Colangelo, Universal Jurisdiction
as an International False Conflict of Laws, 30 Mich. J. Int’l L. 881 (2009); A. Colangelo, The Foreign
Commerce Clause, 96 Va. L. Rev. 949 (2010); A. Colangelo, A Unified Approach to Territoriality, 97 Va.
L. Rev. 1019 (2011); A. Colangelo, Spatial Legality, 107 Nw. U. L. Rev. 69 (2012); A. Colangelo, Jurisdiction,
Immunity, Legality, and Jus Cogens, 14 Chi. J. Int’l L. 53 (2013); A. Colangelo, Kiobel: Muddling the
Distinction between Prescriptive and Adjudicative Jurisdiction, 28 Md. J. Int’l L. 65 (2013); A. Colangelo,
The Alien Tort Statute and the Law of Nations in Kiobel and Beyond, 44 Geo. J. Int’l L. 1329 (2013);
A. Colangelo, What Is Extraterritorial Jurisdiction?, 99 Cornell L. Rev. 1303 (2014); Colangelo, A.J.,
International Law in U.S. State Courts: Extraterritoriality and “False Conflicts” of Law, 48 Int'l L. 1 (2014).
135. See S. Cox, Substantive Multilateral, and Unilateral Choice of Law Approaches, 37 Willamette L. Rev.
171 (2000); S. Cox, Nine Questions about Same-Sex Marriage Conflicts, 40 New Eng. L. Rev. 361 (2006);
S. Cox, Red States, Blue States, Marriage Debates, 3 Ave Maria L. Rev. 637 (2005).
136. See P. Dane, Whereof One Cannot Speak: Legal Diversity and the Limits of a Restatement of Conflict
of Laws, 75 Ind. L.J. 511 (2000); P. Dane, Vested Rights, “Vestedness,” and Choice of Law, 96 Yale L.J. 1191
(1987).
137. See P. Hay, Selected Essays on Comparative Law and Conflict of Laws (2015); P. Hay, Flexibility ver-
sus Predictability and Uniformity in Choice of Law: Reflections on Current European and United States
Conflicts Law, 226 Recueil des cours 281 (1991); P. Hay, Full Faith and Credit and Federalism in Choice of
Law, 34 Mercer L. Rev. 709 (1983); P. Hay, Reflections on Conflict-of-Laws Methodology, 32 Hastings L.J.
1644 (1981); P. Hay & R. Ellis, Bridging the Gap between Rules and Approaches in Tort Choice of Law in
the United States: A Survey of Current Case Law, 27 Int’l Law. 369 (1993); P. Hay, From Rule-Orientation
Phaedon Kozyris,141 Larry Kramer,142 Laura Little,143 Luther McDougal,144 Ralf Michaels,145
to “Approach” in German Conflicts Law: The Effect of the 1986 and 1999 Codifications, 47 Am. J. Comp.
L. 633 (1999); P. Hay, Recognition of Same Sex Relationships in the United States, 54 Am. J. Comp. L. 257
(2006 Supp.); P. Hay, Contemporary Approaches to Non-contractual Obligations in Private International
Law (Conflict of Laws) and the European Community’s Rome II Regulation, 4.1 Eur. Legis. F. 137 (2007);
P. Hay The Use and Determination of Foreign Law in Civil Litigation in the United States, 62 Am. J. Comp.
L. 213 (2014); P. Hay, European Conflicts Law after the American “Revolution”—Comparative Notes,
2015 U. Ill. L. Rev. 2053 (2015).
138. See A. Hill, For a Third Conflicts Restatement—But Stop Trying to Reinvent the Wheel, 75 Ind. L.J.
535 (2000); A. Hill, After the Big Bang: Professor Sedler’s Remaining Dilemma, 38 Wayne L. Rev. 1471
(1992); A. Hill, Governmental Interest and the Conflict of Laws: A Reply to Professor Currie, 27 U. Chi.
L. Rev. 463 (1960).
139. See H.H. Kay, Currie’s Interest Analysis in the 21st Century: Losing the Battle, But Winning the War,
37 Willamette L. Rev. 123 (2001); H.H. Kay, A Defense of Currie’s Governmental Interest Analysis, 215
Recueil des cours 9 (1989); H.H. Kay, Chief Justice Traynor and Choice of Law Theory, 35 Hastings L.J. 747
(1984); H.H. Kay, Theory into Practice: Choice of Law in the Courts, 34 Mercer L. Rev. 521 (1983); H.H.
Kay, Remembering Brainerd Currie, 2015 U. Ill. L. Rev. 1961 (2015).
140. See H. Korn, Big Cases and Little Cases: Babcock in Perspective, 56 Alb. L. Rev 933 (1993); H. Korn,
The Choice-of-Law Revolution: A Critique, 83 Colum. L. Rev. 772 (1983).
141. See P.J. Kozyris, Conflicts Theory for Dummies: Après le Deluge, Where Are We on Producers
Liability?, 60 La. L. Rev. 1161 (2000); P.J. Kozyris, The Conflicts Provisions of the ALI’s Complex Litigation
Project: A Glass Half Full?, 54 La. L. Rev. 953 (1994); P.J. Kozyris, Values and Methods in Choice of Law
for Products Liability: A Comparative Comment on Statutory Solutions, 38 Am. J. Comp. L. 475 (1990);
P.J. Kozyris, Interest Analysis Facing Its Critics, 46 Ohio St. L.J. 569 (1985); P.J. Kozyris, Rome II: Tort
Conflicts on the Right Track! A Postscript to Symeon Symeonides’ Missed Opportunity, 56 Am. J. Comp.
L. 471 (2008).
142. See L. Kramer, Choice of Law in Complex Litigation, 71 N.Y.U. L. Rev. 547 (1996); L. Kramer, On
the Need for a Uniform Choice of Law Code, 89 Mich. L. Rev. 2134 (1991); L. Kramer, More Notes on
Methods and Objectives in the Conflict of Laws, 24 Cornell Int’l L.J. 245 (1991); L. Kramer, Return of the
Renvoi, 66 NYU L. Rev. 979 (1991); L. Kramer, Rethinking Choice of Law, 90 Colum. L. Rev. 277 (1990); L.
Kramer, The Myth of the “Unprovided For” Case, 75 Va. L. Rev. 1045 (1989); L. Kramer, Interest Analysis
and the Presumption of Forum Law, 56 U. Chi. L. Rev. 1301 (1989).
143. See L. Little, Hairsplitting and Complexity in Conflict of Laws: The Paradox of Formalism 54
Def. L.J. 377 (2005); L. Little, Internet Defamation, Freedom of Expression, and the Lessons of Private
International Law for the United States, 14 Ybk. Priv. Int’l L. 181 (2013); L. Little, Conflict of Laws
Structure and Vision: Updating a Venerable Discipline, 31 Ga. St. U. L. Rev. 231 (2015).
144. See L. McDougal, Leflar’s Choice-Influencing Considerations: Revisited, Refined and Reaffirmed, 52
Ark. L. Rev. 105 (1999); L. McDougal, Toward the Increased Use of Interstate and International Policies
in Choice-of-Law Analysis in Tort Cases under the Second Restatement and Leflar’s Choice-Influencing
Considerations, 70 Tul L. Rev. 2465 (1996); L. McDougal, The Real Legacy of Babcock v. Jackson: Lex Fori
instead of Lex Loci Delicti and Now It’s Time for a Real Choice-of-Law Revolution, 56 Alb. L. Rev. 795
(1993); L. McDougal, Private International Law: Jus Gentium versus Choice of Law Rules or Approaches,
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
Governmental Interest Analysis: An Appraisal in the Context of Choice-of-Law Problems concerning
Contributory and Comparative Negligence, 26 UCLA L. Rev. 439 (1979); L. McDougal, New Frontier in
Choice of Law-Trans-state Laws: The Need Demonstrated in Theory and in the Context of Motor Vehicle
Guest-Host Controversies, 53 Tul. L. Rev. 731 (1979); L. McDougal, Choice of Law: Prologue to a Viable
Interest-Analysis Theory, 51 Tul. L. Rev. 207 (1977).
145. See 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 New European Choice-of-Law
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
Views on Global Issues, 4 J. Priv. Int’l L. 121 (2008); R. Michaels, Economics of Law as Choice of Law,
71.3 L. & Contemp. Probs. 73 (2008); R. Michaels, Public and Private Law in the Global Adjudication
System: Three Questions to the Panelists, 18 Duke J. Comp. & Int’l L. 253 (2008); R. Michaels, The True
Lex Mercatoria: Law beyond the State, 14 Ind. J. Global Legal Stud. 447 (2007); R. Michaels, Global Legal
Pluralism, 5 Ann. Rev. L. & Soc. Sci. 243 (2009); R. Michaels, Rethinking the Unidroit Principles: From a
Law to Be Chosen by the Parties Towards a General Part of Transnational Contract Law, 73 RabelsZ 866
(2009); R. Michaels, After the Revolution—Decline and Return of U.S. Conflict of Laws, 11 Ybk Priv. Int’l
L. 11 (2009).
146. See J. Nafziger, Oregon’s Conflicts Law Applicable to Contracts, 38 Willamette L. Rev. 397 (2002); J.
Nafziger, Avoiding Courtroom “Conflicts” Whenever Possible, in J. Nafziger & S. Symeonides (eds.), Law
and Justice in a Multistate World: Essays in Honor of Arthur T. von Mehren 341 (2002); J. Nafziger, Making
Choices of Law Together, 37 Willamette L. Rev. 209 (2000); J. Nafziger, Oregon’s Project to Codify Choice-
of-Law Rules, 60 La. L. Rev. 1189 (2000); J. Nafziger, Choice of Law in Air Disaster Cases: Complex
Litigation Rules and the Common Law, 54 La. L. Rev. 1001 (1994); J. Nafziger, A Prologue to Oregon’s
Codification of Choice-of-Law Rules for Tort Actions, in Festschrift Juenger 125 (2006); J. Nafziger, The
Good Word(s) from Fritz Juenger, in Juenger Special Ed. xlvi (2005); J. Nafziger, The Louisiana and Oregon
Codifications of Choice-of-Law Rules in Context, 58 Am. J. Comp. L. 165 (2010 Supp.).
147. See C. Peterson, Restating Conflicts Again: A Cure for Schizophrenia?, 75 Ind. L.J. 549 (2000); C.
Peterson, American Private International Law at the End of the 20th Century: Progress or Regress?,
in S. Symeonides (ed.), Private International Law at the End of the 20th Century: Progress or Regress?
430 (2000); C. Peterson, New Openness to Statutory Choice of Law Solutions, 38 Am. J. Comp. L. 423
(1990); C. Peterson, Federalism and the Elusive Goal of Uniformity in American Conflicts Law, in Liber
Memorialis François Laurent 943 (J. Erauw et al. eds., 1989); C. Peterson, Particularism in the Conflict of
Laws, 10 Hofstra L. Rev. 973 (1982).
148. See B. Posnak, The Restatement (Second): Some Not So Fine Tuning for a Restatement (Third): A Very
Well-Curried Leflar over Reese with Korn on the Side (or Is It Cob?), 75 Ind. L.J. 561 (2000); B. Posnak,
Choice of Law—Interest Analysis: They Still Don’t 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
Law: A Very Well-Curried Leflar Approach, 34 Mercer L. Rev. 731 (1983).
149. See M. Reimann, Liability for Defective Products and Services: Emergence of a Worldwide
Standard?, in Convergence of Legal Systems in the 21st Century: General Reports Delivered at the XVIth
International Congress of Comparative Law 367 (2006); M. Reimann, Comparative Law and Private
International Law, in M. Reimann & R. Zimmerman (eds.), The Oxford Handbook of Comparative Law
1363 (2006); M. Reimann, Savigny’s Triumph: Choice of Law in Contracts Cases at the Close of the
Twentieth Century, 39 Va. J. Int’l 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
in Comparative Perspective, 60 La. L. Rev. 1297 (2000); M. Reimann, A New Restatement-for the
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
“Codifying Choice of Law Around the World: An International Comparative Analysis,” 63 Am. J. Comp.
L. 801 (2015).
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
Mercer L. Rev. 645 (1983); W. Reppy, Eclecticism in Methods for Resolving Tort and Contract Conflict of
Laws: The United States and the European Union, 82 Tul. L. Rev. 2053 (2008).
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
Leflar, Judicial Process and Choice of Law, 52 Ark. L. Rev. 123 (1999); W. Richman & W. Reynolds,
Prologomenon to an Empirical Restatement of Conflicts, 75 Ind. L.J. 417 (2000).
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.
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 (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.
L. Rev. 973 (2005); A. Riles, The Anti-network: Private Global Governance, Legal Knowledge, and the
Legitimacy of the State, 56 Am. J. Comp. L. 605 (2008); A Riles, Cultural Conflicts, 71.3 Law & Contemp.
Probs. 273 (2008); A. Riles, Managing Regulatory Arbitrage: A Conflict of Laws Approach, 47 Cornell Int’l
L.J. 63 (2014).
154. See K. Roosevelt, Conflict of Laws (2d ed. 2010); K. Roosevelt, Guantanamo and the Conflict
of Laws: Rasul and Beyond, 153 U. Pa. L. Rev. 2017 (2005); K. Roosevelt, The Myth of Choice of
Law: Rethinking Conflicts, 97 Mich. L. Rev. 2448 (1999); K. Roosevelt, Resolving Renvoi: The Bewitchment
of Our Intelligence by Means of Language, 80 Notre Dame L. Rev. 1821 (2005); K. Roosevelt, Choice of
Law in Federal Courts: From Erie and Klaxon to CAFA and Shady Grove, 106 Nw. U. L. Rev. 1 (2012); K.
Roosevelt, Brainerd Currie’s Contribution to Choice of Law: Looking Back, Looking Forward, 65 Mercer
L. Rev. 501 (2014).
155. See R. Sedler, American Federalism, State Sovereignty, and the Interest Analysis Approach to
Choice of Law, in J. Nafziger & S. Symeonides (eds.), Law and Justice in a Multistate World: Essays in
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: A Third
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 Project’s 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: A Reflective Response to
Professor Hill, 38 Wayne L. Rev. 1419 (1992); R. Sedler, Professor Juenger’s 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
Professor Brilmayer’s “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 Crits,” 34 Mercer L. Rev.
593 (1983); R. Sedler, Reflections on Conflict-of-Laws Methodology, 32 Hastings L.J. 1628 (1981); R.
Sedler, Rules of Choice of Law versus Choice-of-Law Rules: Judicial Method in Conflicts Torts Cases,
44 Tenn. L. Rev. 975 (1977); R. Sedler, The Governmental Interest Analysis to Choice of Law: An
Analysis and a Reformulation, 25 UCLA L. Rev. 181 (1977); R. Sedler, On Choice of Law and the
Great Quest: A Critique of Special Multistate Solutions to Choice-of-Law Problems, 7 Hofstra L. Rev.
807 (1979); R. Sedler, Interstate Accidents and the Unprovided-for Case: Reflections on Neumeier
v. Kuehner, 1 Hofstra L. Rev. 125 (1973); R. Sedler, The Truly Disinterested Forum in the Conflict of
Laws, 25 S.C. L. Rev. 185 (1973).
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
L. Rev. 823 (1997); G. Shreve, Choice of Law and the Forgiving Constitution, 71 Ind. L.J. 271 (1996); G.
Shreve, Conflicts Law—State or Federal?, 68 Ind. L.J. 907 (1993); G. Shreve, Book Review [Symeonides,
The American Choice-of-Law Revolution in the Courts], 52 Am. J. Comp. L. 1003 (2004).
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? A Tribute to Hal Maier, 39 Vand. J. Transnat’l
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
Class Actions: Should CAFA Make a Difference?, 14 Roger Williams U. L. Rev. 54 (2009); L. Silberman,
Convention on the Civil Aspects of International Child Abduction—Custody Rights—Ne Exeat Rights,
105 Am. J. Int’l L. 108 (2011); L. Silberman, Morrison v. National Australia Bank: Implications for Global
Securities Class Actions, 12 Ybk. Priv. Int’l L. 123 (2010); L. Silberman, Daimler AG v. Bauman: A New Era
for Judicial Jurisdiction in the United States, 16 Y.B. Priv. Int’l L. 1 (2014–15).
158. See G. Simson, The Choice-of-Law Revolution in the United States: Notes on Rereading von Mehren,
36 Cornell Int’l L.J. 125 (2003); G. Simson, State Interests, State Autonomy, and the Quest for Uniformity
in Choice of Law, in J. Nafziger & S. Symeonides (eds.), Law and Justice in a Multistate World: Essays
in Honor of Arthur T. von Mehren 391 (2002). G. Simson, Leave Bad Enough Alone, 75 Ind. L.J. 649
(2000); G. Simson, Resisting the Allure of Better Rule of Law, 52 Ark. L. Rev. 141 (1999); 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); G. Simson, Plotting the Next “Revolution” in Choice of Law: A Proposed Approach, 24
Cornell Int’l 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. Int’l 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
Int’l L.J. 197 (1991); J. Singer, Same Sex Marriage, Full Faith and Credit, and the Evasion of Obligation, 1
Stan. J. C.R. & C.L. 1 (2005); J. Singer, Property Conflicts, 54 Washburn L.J. 129 (2014); J. Singer, Multistate
Justice: Better Law, Comity, and Fairness in the Conflict of Laws, 2015 U. Ill. L. Rev. 1923 (2015).
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 Emperor’s Clothes?, 1 Hofstra L. Rev. 104 (1973); A. Twerski,
Enlightened Territorialism and Prof. Cavers: The Pennsylvania Method, 9 Duq. L. Rev. 373 (1971);
A. Twerski & R. Mayer, Toward a Pragmatic Solution of Choice-of-Law Problems: At the Interface of
Substance and Procedure, 74 N.W. U. L Rev. 781 (1979).
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
Adoptions, 3 Ave Maria L. Rev. 561 (2005); L. Wardle, From Slavery to Same-Sex Marriage: Comity versus
Public Policy in Inter-jurisdictional Recognition of Controversial Domestic Relations, 2008 B.Y.U. L. Rev.
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
Problems and Conflict of Laws Solutions, 12 J. L. & Fam. Stud. 315 (2010); L. Wardle, Who Decides? The
Federal Architecture of DOMA and Comparative Marriage Recognition, 41 Cal. W. Int’l L.J. 143 (2010);
L. Wardle, Involuntary Imports: Williams, Lutwak, the Defense of Marriage Act, Federalism, and “Thick”
and “Thin” Conceptions of Marriage, 81 Fordham L. Rev. 771 (2012).
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 Don’t 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: A Critical Analysis of the ALI’s Proposed Choice Rule, 56
Alb. L. Rev. 807 (1993); L. Weinberg, Choosing Law: The Limitations Debate, 1991 U. Ill. L. Rev. 683
(1991); L. Weinberg, The Place of Trial and the Law Applied: Overhauling Constitutional Theory, 59 U.
Colo. L. Rev. 67 (1988); L. Weinberg, On Departing from Forum Law, 35 Mercer L. Rev. 595 (1984); L.
Weinberg, Choice of Law and Minimal Scrutiny, 49 U. Chi. L. Rev. 440 (1982); L. Weinberg, Conflicts
Cases and the Problem of Relevant Time: A Response 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 Leflar’s
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. John’s J. Int’l & Comp. L. 55 (2012); C. Whytock, Litigation, Arbitration, and the
Transnational Shadow of the Law, 18 Duke J. Comp. & Int’l L. 449 (2008).
six
The Judicial Revolution

in Torts 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
rules—the 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 case-
books 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. O’Hara O’Connor, Conflict of Laws: Cases and Materials,
111–66 (7th ed. 2015); D. Currie, H. Kay, L. Kramer & K. Roosevelt, Conflict of Laws: Cases-Comments-
Questions 39–84 (8th ed. 2010); P. Hay, R. Weintraub & P. Borchers, Conflict of Laws: Cases and Materials
507–22 (13th ed. 2009); G. Simson, Issues and Perspectives in Conflict of Laws 54–92 (5th ed. 2015); S.
Symeonides & W. Perdue, Conflict of Laws: American, Comparative, International 48–123 (3d ed. 2012).
123
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 unre-
lated, 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 New York
domiciliary, who was a guest-passenger in a car insured and garaged in New York and driven
by a New York host-driver. New York law allowed the passenger to bring a tort action against
the host-driver, whereas Ontario’s “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 con-
tract 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 ‘interests’ ”8 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 enforce-
ment 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 court’s approach, discussed below.
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
issue—the driver’s immunity from suit, because of the Ontario guest-statute, and the absence
5. 345 U.S. 571 (1953) (discussed infra 641–42; enunciating a multifactor test for delineating the extrater-
ritorial 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, 133–34.
8. Babcock, 191 N.E.2d at 284.
9. Id. at 280–81 (first emphasis in original; second emphasis added).
The Judicial Revolution in Torts and Contracts 125
of such a statute in New York. 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 conflicting laws.
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. Dépeçage
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 apply-
ing its law to all issues, or (2) one state is interested in one issue, while another state is inter-
ested 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 dépeçage.
Dépeçage 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 theory’s 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, dépeçage 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, dépeçage is
inappropriate and must be avoided.11
3. The Distinction between Loss-Distribution

and Conduct-R egulation Issues
Because Babcock was a single-issue conflict, the court did not need to engage in dépeçage, in the
sense of actually applying the laws of two different states. However, the Babcock court clearly
signaled its willingness to engage in dépeçage by stating in dictum that it would have reached
a different conclusion with regard to Ontario’s 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 defen-
dant’s exercise of due care.”12
11. For a full discussion of dépeçage in American conflicts law, see S. Symeonides, Issue-by-Issue Analysis
and Dépeçage in Choice of Law: Cause and Effect, 45 U. Toledo L. Rev. 751 (2014). For discussion of
dépeçage in foreign private international law codifications, see S. Symeonides, Codifying Choice of Law
220–44.
12. Babcock, 191 N.E.2d at 284.
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 Babcock—namely, “whether the plaintiff,
because she was a guest in the defendant’s automobile, is barred from recovering dam-
ages 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 Ontario’s in Babcock; (2) New York’s opposite common-law
rule, which provided recovery to the victim despite her status as a gratuitous guest; (3) rules elimi-
nating or limiting the defendant’s 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 ter-
ritorially. 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 dis-
tribution. Babcock assumed that a guest statute does not affect a driver’s 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 easy case.
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
New York, and then examined whether the application of each rule would further its underly-
ing purpose or policy. Assuming that the purpose of the Ontario guest statute was to protect
Ontario insurers—and only Ontario insurers—from collusion between drivers and their gra-
tuitous guests, the court concluded that the application of the statute would not further its
13. Id.
14. Id.
15. See infra, 188–89.
16. 124 N.E.2d 99 (N.Y. 1954) (discussed infra, at 133–34).
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 New York’s 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 New York law to this case, which involved a New York
victim injured by a New York driver, would further this policy by allowing a New York victim
to recover damages. Thus, because New York 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 state—New York.
B. AFTER BABCOCK
Since Babcock, 41 other jurisdictions have followed New York’s lead by abandoning the lex loci
delicti rule.18 Charts 1 and 2, below, and Table 1, below, depict the chronology of this move-
ment, 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 discussed later.
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 Contractus Rules.
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 pur-
pose, 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 Puerto Rico.
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.
Table 1 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 1966–1969, during which the ALI published the
Official Proposed Drafts of the Restatement (Second). Of the 17 jurisdictions that aban-
doned 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 Leflar’s 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. & Eng’g Co., 428 P.2d 898 (Or. 1967); Armstrong v. Armstrong, 441 P.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, 432 P.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 New York court’s 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 New York 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).
Table 1. Chronological Table of Departures from the Lex Loci Delicti Rule
Lex loci states Departures from the lex loci delicti rule
1962 52
1963 51 1 New York
1964 50 1 Pennsylvania
1965 49 1 Wisconsin
1966 46 3 Minnesota New Hampshire Puerto Rico
1967 41 5 California Dist. of Columbia Kentucky New Jersey Oregon
1968 36 5 Alaska Arizona Iowa Mississippi Rhode Island
1969 35 1 Missouri
1970 33 2 Illinois Maine
1971 33
1972 32 1 North Dakota
1973 30 2 Colorado Louisiana
1974 28 2 Oklahoma Washington
1975 28
1976 27 1 Massachusetts
1977 26 1 Arkansas
1978 26
1979 25 1 Texas
1980 24 1 Florida
1981 23 1 Hawaii
1982 22 1 Michigan
1983 22
1984 21 1 Ohio
1985 20 1 Idaho
1986 19 1 Connecticut
1987 17 2 Indiana Nebraska
1988 17
1989 16 1 Utah
1990 16
1991 15 1 Delaware
1992 13 2 South Dakota Tennessee
1993 13
1994 13
1995 13
1996 12 1 Nevada
1997 11 1 Vermont
1998 11
1999 11
2000 10 1 Montana
2001–2013 10
2014 10 42
2015 10
Remaining states, 10: Alabama, Georgia, Kansas, Maryland, New Mexico, North Carolina, South Carolina, Virginia,
West Virginia, and Wyoming.
■ Table 2, below, shows these jurisdictions in chronological order, with the approaches
they adopted then, and the approaches they follow today.22
Table 2. The 1960s

Year State Approach then Approach today
1963 New York Interest analysis Mixed
1964 Pennsylvania Interest analysis Mixed
1965 Wisconsin Interest analysis Better-Law
Minnesota Restatement (2d) Better-Law
1966 New Hampshire Better-Law Better-Law
Puerto Rico Significant contacts Signif. contacts
California Interest analysis Interest analysis*
District of Columbia Restatement (2d) Interest analysis
1967 Kentucky Restatement (2d) Lex fori
New Jersey Interest analysis Restatement (2d)
Oregon Restatement (2d) Mixed
Alaska Restatement (2d) Restatement (2d)
Arizona Restatement (2d) Restatement (2d)
1968 Iowa Restatement (2d) Restatement (2d)
Mississippi Restatement (2d) Restatement (2d)
Rhode Island Better-Law Better-Law
1969 Missouri Restatement (2d) Restatement (2d)
■ 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 Leflar’s 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

Leflar’s 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, 688–93); (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 Leflar’s 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. Harrah’s Club, 546 P.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 Nat’l 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. Smith’s Pie Co., 550 S.W.2d 453 (Ark. 1977).
26. See Issendorf v. Olson, 194 N.W. 2d 750 (N.D. 1972).
■ Table 3, below, shows these jurisdictions, in chronological order, with the approaches
Table 3. The 1970s

Illinois Restatement (2d) Restatement (2d)
1970
Maine Restatement (2d) Restatement (2d)
1972 North Dakota Significant contacts Signif. contacts
Colorado Restatement (2d) Restatement (2d)
1973
Louisiana Mixed Mixed
Oklahoma Restatement (2d) Restatement (2d)
1974
Washington Restatement (2d) Restatement (2d)
1976 Massachusetts Mixed Mixed
1977 Arkansas Better-Law Better-Law
1979 Texas Restatement (2d) 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 abandoned it.
■ 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 approaches today.

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); O’Connor v. O’Connor, 519 A.2d 13
(Conn. 1986); Crossley v. Pacific Emp’s. 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, 779 P.2d
218 (Utah 1989).
29. See Hubbard Mfg. Co. v. Greeson, 515 N.E.2d 1071, 1073–74 (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, 634 P.2d 586 (Haw. 1981) (applying a blend of interest analysis and Leflar’s choice-
influencing considerations).
32. All of these jurisdictions follow the same approaches today.
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).
Table 4. The 1980s
1980 Florida Restatement (2d) Restatement (2d)
1981 Hawaii Mixed Mixed
1982 Michigan Lex fori Lex fori
1984 Ohio Restatement (2d) Restatement (2d)
1985 Idaho Restatement (2d) Restatement (2d)
1986 Connecticut Restatement (2d) Restatement (2d)
Indiana Significant contacts Signif. contacts
1987
Nebraska Restatement (2d) Restatement (2d)
1989 Utah Restatement (2d) Restatement (2d)
jurisdiction adopted a lex fori approach.34 Finally, in the year 2000, one more jurisdic-
tion 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
Table 5. The 1990s and Later

1991 Delaware Restatement (2d) Restatement (2d)
South Dakota Restatement (2d) Restatement (2d)
1992
Tennessee Restatement (2d) Restatement (2d)
1996 Nevada Lex fori Restatement (2d)
1997 Vermont Restatement (2d) Restatement (2d)
2000 Montana Restatement (2d) Restatement (2d)
■ Since 2000, no other jurisdiction has abandoned the lex loci delicti rule. Thus, as of 2015:
• A total of 42 jurisdictions have abandoned the lex loci delicti rule;

• 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., 921 P.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., 995 P.2d 1002 (Mont. 2000).
36. Nevada subsequently switched to the Restatement (Second). See Gen. Motors Corp. v. Eighth Judicial
District, 134 P.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 141–43.
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 discussed next.
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 New York 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 con-
tractus 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 New York, under which the agree-
ment was unenforceable. Noting that the agreement “determined and fixed the marital respon-
sibilities 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
England’s and New York’s 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. at 423.
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. at 103.
N
ME
WA
VT
AK MT ND NH MA
OR MN
WI NY
CT RI
SD MI
ID
WY PA NJ
IA
NE OH DE
NV IL IN MD
UT WV VA
CO KS MO KY
HI CA
NC
TN
OK AR SC
AZ NM
MS AL GA
TX LA
Modern
FL
Traditional
Map 1. The Revolution in Tort Conflicts.

“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 husband’s] 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 127–28 and, Table 6, infra 136, indicate, the revolution spread at
a much slower and more even pace in contracts than in torts.
■ Despite the earlier departures from the lex loci contractus rule in Indiana and New York,
the revolution did not gain momentum until the 1960s, when nine jurisdictions aban-
doned that rule. Seven of them did so in the 1967–1969 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 inter-
est 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 Puerto Rico.
47. See Rungee v. Allied Van Lines, Inc., 449 P.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., 425 P.2d 623 (Wash. 1967).
48. See Lilienthal v. Kaufman, 395 P.2d 543 (Or. 1964); Travelers Ins. Co. v. Workmen’s Comp. Appeals
Bd., 434 P.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 Ass’n, 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 Leflar’s 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 Leflar’s 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, New York, 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, 15 P.3d 1071 (Cal. 2001); Dist. of Columbia Ins. Guar. Ass’n
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 688–90,
infra.
Table 6. Chronological Table of Departures from the
Lex Loci Contractus Rule
Lex loci states Departures from the lex loci contractus rule
1944 52
1945 51 1 Indiana
1954 50 1 New York
1961 49 1 Puerto Rico
1962 49
1963 49
1964 48 1 Oregon
1965 48
1966 48
1967 46 2 California Washington
1968 42 4 Idaho New Hampshire Vermont Wisconsin
1969 41 1 Dist. Columbia
1970 39 2 Arizona Delaware
1971 39
1972 39
1973 39
1974 39
1975 39
1976 39
1977 37 2 Iowa Kentucky
1978 36 1 Missouri
1979 32 4 Arkansas Colorado Illinois Minnesota
1980 30 2 Mississippi New Jersey
1981 30
1982 30
1983 28 2 Maine Pennsylvania
1984 26 2 Ohio Texas
1985 25 1 Massachusetts
1986 24 1 North Dakota
1987 24
1988 21 3 Hawaii North Carolina W. Virginia
1989 21
1990 21
1991 21
1992 20 1 Louisiana
1993 20
1994 15 5 Connecticut Montana Nebraska Nevada S. Dakota
1995 13 2 Alaska Michigan
1996 12 1 Utah
1997–2014 12
2015 12 40
Remaining states, 12: Alabama, Florida, Georgia, Kansas, Maryland, New Mexico, Oklahoma, Rhode Island, South
Carolina, Tennessee, Virginia, and Wyoming.
Table 7. The 1960s and Before

1945 Indiana Center of gravity Center of gravity
1954 New York Center of gravity Mixed
1961 Puerto Rico Significant contacts Signif. contacts
1964 Oregon Interest analysis Mixed
California Interest analysis Mixed
1967
Washington Restatement (2d) Restatement (2d)
Idaho Restatement (2d) Restatement (2d)
New Hampshire Restatement (2d) Restatement (2d)
1968
Vermont Restatement (2d) Restatement (2d)
Wisconsin Significant contacts Better-Law
1969 District of Columbia Interest analysis Mixed
■ 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 Leflar’s
approach.53 Table 8, following page, shows these jurisdictions, in chronological order.
■ 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 juris-
dictions: (1) Five jurisdictions adopted the Restatement (Second),54 and (2) six juris-
dictions adopted a mixed approach that, in most instances, included reliance on the
Restatement.55 Table 9, following page, shows these jurisdictions, in chronological order.
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); Nat’l 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. Comm’n, 736 S.W.2d 41 (Mo. 1987); Wood Bros. Homes, Inc. v. Walker
Adjustment Bureau, 601 P.2d 1369 (Colo. 1979); Champagnie v. W.E. O’Neil 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.
Ass’n, 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 forum’s
Table 8. The 1970s

Arizona Restatement (2d) Restatement (2d)
1970
Delaware Restatement (2d) Restatement (2d)
Iowa Restatement (2d) Restatement (2d)
1977
Kentucky Restatement (2d) Restatement (2d)
1978 Missouri Restatement (2d) Restatement (2d)
Arkansas Significant contacts Signif. contacts
Colorado Restatement (2d) Restatement (2d)
1979
Illinois Restatement (2d) Restatement (2d)
Minnesota Better-Law Better-Law
Table 9. The 1980s

Mississippi Restatement (2d) Restatement (2d)
1980
New Jersey Mixed Mixed
Maine Restatement (2d) Restatement (2d)
1983
Pennsylvania Mixed Mixed
Ohio Restatement (2d) Restatement (2d)
1984
Texas Restatement (2d) Restatement (2d)
1985 Massachusetts Mixed Mixed
1986 North Dakota Mixed Mixed
Hawaii Mixed Mixed
1988 North Carolina Mixed Mixed
West Virginia Restatement (2d) 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, 748 P.2d 1362 (Haw. 1988) (interpreting Peters v. Peters, 634 P.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,
886 P.2d 931 (Mont. 1994); Powell v. Am. Charter Fed. S & L Ass’n, 514 N.W.2d 326 (Neb. 1994) (explic-
itly 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 Stockmen’s 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. Nat’l Fire Ins. Co. v. Farmers Ins.
Exch., 927 P.2d 186 (Utah 1996).
(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.
Table 10. The 1990s and Later

1992 Louisiana Mixed Mixed
Connecticut Restatement (2d) Restatement (2d)
Montana Restatement (2d) Restatement (2d)
1994 Nebraska Restatement (2d) Restatement (2d)
Nevada Significant contacts Signif. contacts
South Dakota Restatement (2d) Restatement (2d)
Alaska Restatement (2d) Restatement (2d)
1995
Michigan Restatement (2d) Restatement (2d)
1996 Utah Restatement (2d) Restatement (2d)
■ Since 1996, no other jurisdiction has abandoned the lex loci contractus rule. Thus, as
of 2015:
• A total of 40 jurisdictions have abandoned this rule.

• More than half (23) of the 40 jurisdictions have adopted the Restatement (Second)
and continue to follow it to date.
• 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 Chapter 17,
infra.60
57. See Hermanson v. Hermanson, 887 P.2d 1241 (Nev. 1994) (a status case reinterpreting earlier contract
cases as having adopted a “substantial relationship” test).
58. See La. Civ. Code Arts. 3537–3540, enacted in 1992, described, infra, 678–88, providing rules based
on the notion that the applicable law should be the law of the “state whose policies would be most seri-
ously 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 141–43.
60. See infra, 678–93.
N
ME
WA
VT
AK MT ND NH MA
OR MN
WI NY
CT RI
SD MI
ID
WY PA NJ
IA
NE OH DE
NV IL IN MD
UT WV VA
CO KS MO KY
HI CA
NC
TN
OK AR SC
AZ NM
MS AL GA
TX LA
FL
Map 2. The Revolution in Contract Conflicts.

I V. T H E REM A I NI NG
T R A D I T I O NA L S TAT ES
As Tables 1 and 2 indicate, the revolutionary momentum seems to have stopped in the closing
years of the twentieth century. No state has abandoned the traditional system—since 1996 in
contracts and since 2000 in torts. This leaves 12 states continuing to follow the traditional sys-
tem in contract conflicts, and 10 states doing so in tort conflicts. For the reader’s convenience,
these states are shown again in Table 11.
As Table 11 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 con-
flicts, 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 contrac-
tus 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
Table 11. Traditional States
Contracts Torts
Alabama Alabama
Florida
Georgia Georgia
Kansas Kansas
Maryland Maryland
New Mexico New Mexico
North Carolina
Oklahoma
Rhode Island
South Carolina South Carolina
Tennessee
Virginia Virginia
West Virginia
Wyoming Wyoming
Total 12 Total 10
61. See Sturiano v. Brooks, 523 So. 2d 1126 (Fla. 1988) (reaffirming the lex loci contractus rule and specifi-
cally refusing to extend to contract conflicts the “most significant relationship” formula earlier adopted
for tort conflicts).
62. See Harvell v. Goodyear Tire & Rubber Co., 164 P.3d 1028 (Okla. 2006).
63. See Bohannan v. Allstate Ins. Co., 820 P.2d 787 (Okla. 1991).
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 ques-
tion 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 forum’s public policy, as an exception from the otherwise applicable foreign law (ordre
public);68 and (2) the offensive use of the forum’s policy, as the affirmative reason for applying
forum law.69
The first use of public policy (the defensive use) is an established exception under the tra-
ditional theory, but only when the foreign law is truly repugnant to the forum’s sense of jus-
tice 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., 81 P.3d 618 (Okla. 2003), cert. denied, 542 U.S. 937 (2004);
Bernal v. Charter Cnty. Mut. Ins. Co., 209 P.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. Nat’l Football League Players’ Ass’n, 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 51–58. For a discussion of
contract conflicts in the 12 traditional states, see id. 58–62.
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. Nat’l 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, 894 P.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 worker’s
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 78–79; 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”).
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 rule—the 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 comity—a doctrine of
deference—not in order to defer to foreign law, but rather to reject it).
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 the void).
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
Revolution Today
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 Chapter 5 indicates, the scholastic revolution that instigated and guided the judicial revo-
lution described in Chapter 6 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 alterna-
tives. 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, attempt-
ing to put the methodological pluralism engendered by the choice-of-law revolution in black
and white.
I I . ME T H O D O L O GI CA L PL UR A L I S M
A. METHODOLOGICAL CAMPS
Table 12, following page, depicts this methodological pluralism. It shows the judicial follow-
ing 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 following text.
145
Table 12. Alphabetical List of States and Choice-of-Law
Methodologies Followed
Signif. Restatement Interest Combined
States Traditional contacts 2d Analysis Lex Fori Better Law Modern
Alabama T+C
Alaska T+C
Arizona T+C
Arkansas C T
California T C
Colorado T+C
Connecticut T+ C?
Delaware T+C
D.C. T C
Florida C T
Georgia T+C
Hawaii T+C
Idaho T+C
Illinois T+C
Indiana T+C
Iowa T+C
Kansas T+C
Kentucky C T
Louisiana T+C
Maine T+C
Maryland T+C
Massachusetts T+C
Michigan C T
Minnesota T+C
Mississippi T+C
Missouri T+C
Montana T+C
Nebraska T+C
Nevada C T
New Hampshire C T
New Jersey T C
New Mexico T+C
New York T+C
No. Carolina T C
North Dakota T C
Ohio T+C
Oklahoma C T
Oregon T+C
Pennsylvania T+C
The Choice-of-Law Revolution Today 147
Table 12. Continued

Signif. Restatement Interest Combined
States Traditional contacts 2d Analysis Lex Fori Better Law Modern
Puerto Rico T+C
Rhode Island C T
So. Carolina T+C
So. Dakota T+C
Tennessee C T
Texas T+C
Utah T+C
Vermont T+C
Virginia T+C
Washington T+C
West Virginia T C
Wisconsin T+C
Wyoming T+C
TOTAL 52 Torts 10 Torts 3 Torts 24 Torts 2 Torts 2 Torts 5 Torts 6
Contr. 12 Contr. 5 Contr. 23 Contr. 0 Contr.0 Contr. 2 Contr. 10
T = Torts 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 prec-
edent,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
To some extent, the separate column called “combined modern” that appears in Table 12
reflects this eclecticism. But that column is reserved only for those states that overtly, know-
ingly, and repeatedly combine more than one modern methodology. If instances of unknow-
ing, 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 . . . deter-

mine . . . 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 . . .
[Leflar’s 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) Leflar’s
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 York’s
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 since 1968.
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. Nat’l 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
Leflar’s 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. at 628.
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 Leflar’s better-law approach since 1973, the
court described its approach as “the significant contacts test,”9 which, however, relies not on
contacts, but on Leflar’s five choice-influencing factors. But these factors are not really five,
because the first three of them are merely hortatory and, by the court’s count, the fifth fac-
tor (the “better law”) has not been employed “in nearly twenty years.”10 This leaves only one
factor—the “[a]‌dvancement of the forum’s governmental interest.”11 Yet, the court concluded
that it was not the forum’s interests but the other state’s interests that needed advancement,12
because “[w]hen all other relevant choice-of-law factors favor neither state’s 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 methodol-
ogy 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. at 96.
11. Id. (emphasis added).
12. The other state’s law was more favorable to the Minnesota party than was Minnesota law.
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., 188 P.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., O’Connor v. O’Connor, 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, irra-
tional 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 contacts—but not neces-
sarily the policy analysis—of the Restatement (Second)).
17. See, e.g., Palmer G. Lewis Co. v. ARCO Chem. Co., 904 P.2d 1221 (Alaska 1995); Powell v. American
Charter Fed. S. & L. Ass’n, 514 N.W.2d 326 (Neb. 1994); Stockmen’s 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. Nat’l Fire Ins. Co. v. Farmers Ins. Exch., 927 P.2d 186 (Utah 1996); Forsman v. Forsman,
779 P.2d 218 (Utah 1989).
18. See, e.g., Williams v. State Farm Mut. Auto. Ins. Co., 641 A.2d 783 (Conn. 1994); O’Connor
v. O’Connor, 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 Int’l, 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. Ass’n Ins. Co., 629
A.2d 885 (N.J. 1993).
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

OF METHODOLOGY
The above-mentioned cases are only a few examples of the difficulties and uncertainties encoun-
tered 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 clas-
sifying 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 con-
flicts 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 judge’s 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 jurisdic-
tion stands, provided they are used with appropriate caution, keeping in mind the aforemen-
tioned 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 the trees.
19. Compare Stockmen’s 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: A View “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 disposi-
tive 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 impor-
tant.”); 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 mod-
ern 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).
I I I . T H E R E S TAT EM ENT (S ECOND)

As Table 12 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 contrac-
tus 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., 705 P.2d 446 (Alaska 1985) (relying exclusively
on the Second Restatement); Armstrong v. Armstrong, 441 P.2d 699 (Alaska 1968) (relying partly on the
Second Restatement); Schwartz v. Schwartz, 447 P.2d 254 (Ariz. 1968); First Nat’l Bank v. Rostek, 514 P.2d
314 (Colo. 1973); O’Connor v. O’Connor, 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., 995 P.2d 1002 (Mont. 2000); Crossley v. Pacific Emp’rs 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, 525 P.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, 779 P.2d
218 (Utah 1989); Amiot v. Ames, 693 A.2d 675 (Vt. 1997); Johnson v. Spider Staging Corp., 555 P.2d 997
(Wash. 1976); Werner v. Werner, 526 P.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 con-
tractus 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., 705 P.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. Ass’n, 470 So. 2d 1024 (Miss. 1985); Spragins
v. Louise Plantation, Inc., 391 So. 2d 97 (Miss. 1980); Fruin-Colnon Corp. v. Mo. Hwy. Transp. Comm’n, 736
S.W.2d 41 (Mo. 1987); Casarotto v. Lombardi, 886 P.2d 931 (Mont. 1994), rev’d on other grounds, 116 S. Ct.
1652 (1996); Powell v. Am. Charter Fed. S & L Ass’n, 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); Stockmen’s Livestock Exch. v. Thompson, 520 N.W.2d 255
(S.D. 1994); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984), rev’d on other grounds, 665 S.W.2d
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 tra-
ditional 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
Restatement’s 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 docu-
ment that covers the entire spectrum of conflicts cases;
439 (Tex. 1984); Am. Nat’l Fire Ins. Co. v. Farmers Ins. Exch., 927 P.2d 186 (Utah 1996); Baffin Land Corp.
v. Monticello Motor Inn, Inc., 425 P.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);
Nat’l 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, 1261–63 (explaining the reasons for the Restatement’s popularity and describ-
ing the various gradations of commitment to it).
30. See id.
(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 possi-
bility of ideologically biased results—indeed, it provides perfect camouflage for them;
(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 tradi-
tional 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 fac-
tor 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 one’s opinion of the Restatement.
Nevertheless, one positive contribution of the Restatement is that it has helped avoid polariza-
tion among American courts, and it has laid the foundation for a new synthesis out of compet-
ing choice-of-law theories. Contrary to the First Restatement’s rigidity and dogmatism, which
caused the revolution, the Second Restatement’s lack of dogmatism and its flexible and com-
promissory 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 differ-
ences and merge competing approaches. Although academic critics tend to vilify this eclecti-
cism, 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 detest it.”).
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.
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 approach’s reliance on physical con-
tacts, 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 system’s 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 logical step.
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, reit-
erated 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., 93 P.R.R. 28 (Puerto Rico 1966).
36. See Standard Leasing Corp. v. Schmidt Aviation, Inc., 576 S.W.2d 181 (Ark. 1979); McMillen
v. Winona Nat’l & 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, 887 P.2d 1241 (Nev. 1994); Boudreau v. Baughman, 368 S.E.2d
849 (N.C. 1988); Maryland Cas. Co. v. San Juan Racing Ass’n, 83 P.R.R. 538 (Puerto Rico 1961); Green
Giant Co. v. Tribunal Superior, 104 P.R.Dec. 489 (Puerto Rico 1975). For New York’s partial use of this
approach, see infra 162–63.
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 Dépeçage in Choice of Law: Cause and Effect, 45 U. Toledo L. Rev. 751, 764–72 (2014).
39. Simon, 805 N.E.2d at 804.
Indiana approach does not contemplate an examination of the policies underlying the conflict-
ing laws. Identifying and weighing policies is a “difficult and ultimately speculative” task, said
the court, whereas it is much easier—and presumably less speculative—to “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 inde-
pendent significance, which a court can compare with the significance of another contact. As the
New York 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, New York courts encountered several guest statute
conflicts, which they resolved in a less-than-consistent manner.44 In an effort to ensure consis-
tency, the New York 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:
[Rule 1]. 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 driver’s 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 victim’s domicile.
[Rule 2b]. Conversely, when the guest was injured in the state of his own domicile and its law
40. Id. at 803.

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 146–47.
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 New York 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.
permits recovery, the driver who has come into that state should not—in the absence of special
circumstances—be permitted to interpose the law of his state as a defense.
[Rule 3]. 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 New York host-driver and a car insured and garaged in New York. The difference
was that in Neumeier the guest-passenger was an Ontario domiciliary. Because of this differ-
ence, 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 New York’s “sub-
stantive 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 pat-
tern 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 immu-
nity,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 gov-
ern 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 pre-
dictability and certainty to an area of the law needing both.51
47. Neumeier, 286 N.E.2d at 457–58.

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 chari-
table 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 New York 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 New York and New Jersey.
50. In his dissent, Justice Jasen agreed with the court’s characterization of New Jersey’s immunity rule
as loss-distributing, but he concluded that New York’s 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 Pennsylvania’s 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 at 687.
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-pattern cases.
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 State’s interest in enforcing the
decision of its domiciliaries to accept the burdens as well as the benefits of that State’s loss-
distributing tort rules and its interest in promoting the continuation and expansion of defen-
dant’s 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 driver’s conduct and the
guest’s injury coincide in the same state. Thus, when the first sentence of Neumeier Rule 2
(hereafter “Rule 2a”) speaks of the “driver’s 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 domi-
cile,” it assumes that the injury is the result of the host-driver’s 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 ulti-
mately the outcome of the case. Unfortunately, the Schultz court did not elaborate on this ques-
tion, 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, 909–11 (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, 847–58 (1997) (discussing how Schultz could be decided under the
Louisiana codification).
54. The importance of this distinction, both for New York and American conflicts law, is discussed, infra,
at 177 et seq.
55. Schultz involved tortious acts that occurred in two states, New York and New Jersey, and produced
injuries in both of those states, but primarily in New Jersey. Rather than discussing the problem such
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 and 2b.
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 tortfeasor’s conduct in his home state (whose law pro-
tects 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 victim’s 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 state’s law favoring that state’s domiciliary.58 The court reiterated the Babcock-
Schultz distinction between conduct-regulating and loss-allocating rules, classified contribu-
tion 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, New York, 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 New York law. With regard to defendant Boy Scouts, a determination that the tort
had occurred in New Jersey, rather than New York, 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 actual case.
56. In Bankers Trust Co. v. Lee Keeling & Assocs., Inc., 20 F.3d 1092 (10th Cir.1994), which involved con-
duct in Oklahoma by an Oklahoma defendant, and injury in New York to a New York 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 New York 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
New York company that, 10 years earlier, had bought the machine from its manufacturer through defen-
dant, a New York sales agent. The employee received workers’ compensation through his employer under
Missouri law, and then brought a product liability action in New York 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 New York law, but not under Missouri law.
loss-allocating conflicts other than guest-statute conflicts. The court found that the case “pre-
sented a true conflict in the mold of Neumeier’s 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 tortfeasor’s
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 forum’s law nor its domiciliaries.”64
The problem was that, by the court’s 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 court’s understanding
that the case did not fall precisely within the scope of Rule 2—first, 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 at text.
60. Id.
61. For an extensive discussion of these difficulties, see Symeonides, Choice-of-Law Revolution 109–14.
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 codification’s drafter, see S. Symeonides,
Louisiana’s New Law of Choice of Law for Tort Conflicts: An Exegesis, 66 Tul. L. Rev. 677, 715–31 (1992).
The Oregon codification follows the same approach. See infra, at 201–02.
63. Cooney, 612 N.E.2d at 283.
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, New York law did not provide for
such contribution. By contrast, said the court, “[i]‌n view of the unambiguous [Missouri] statutory lan-
guage barring third-party liability … Mueller could hardly have expected to be haled before a New York
court to respond in damages for an accident to a Missouri employee at the Missouri plant.” Id. at 284.
The Cooney court also thought it necessary to address Osgood’s contention that the appli-
cation of Missouri law offended New York’s public policy. The court reiterated Cardozo’s
classic test for the ordre public exception,67 and eventually it concluded that the application
of Missouri’s contribution law was not repugnant to New York’s public policy. The reaf-
firmation of Cardozo’s 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. Subsequent Cases
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 Jersey’s 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 defendant’s New Jersey campus.72
The court noted that the case fell within the scope of Neumeier Rule 3, which presump-
tively points to New York 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 New York 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 respec-
tive jurisdictions are irreconcilable, the accident occurred in Missouri, and unavailability of contribu-
tion 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 the sale.
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 presumptive rule.
70. A fortiori, 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 Essays 88.
71. 332 F.3d 105 (2d Cir. 2003) (decided under New York conflicts law).
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.
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 bur-
den.”73 Conversely, “Connecticut’s interest in according [plaintiff] the benefits of its charitable
[non-]immunity policy is reduced because … he has avoided the policy’s concomitant bur-
den 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 states—not just one. The court replied that “[n]othing in Schultz
evidences so numerical an approach,”75 and it pointed out that Schultz applied New Jersey’s
charitable immunity rule, even though both other involved states (New York 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 New York with
a Pennsylvania tractor-trailer parked on the shoulder of the road. The collision caused inju-
ries 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 Neumeier rule.
The New York Court of Appeals affirmed the judgment with regard to the bus defendants,
but held that New York 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 New York employs ‘interest analysis’ rather than ‘group-
ing of contacts,’ the number and intensity of contacts is relevant when considering whether to
73. Gilbert, 332 F.3d at 110.

74. Id.
75. Id. at 112.
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 great-
est interest in applying its law [but] rather … whether each state’s 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 “Connecticut’s 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 90 percent and 10 per-
cent at fault, respectively. Id. at 1046.
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.”).
deviate from lex loci delicti under the third Neumeier rule,”80 and that New Jersey’s 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 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 Ontario’s cap on
non-economic damages.82
B. CONTRACT CONFLICTS

As noted earlier, in the 1954 case Auten v. Auten,83 the New York Court of Appeals abandoned
the traditional lex loci contractus rule and adopted the “center of gravity” approach for resolv-
ing 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 court’s “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 New York 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 New York … and the liability of the defendants is interrelated.” Id. at 1045.
83. 124 N.E.2d 99 (N.Y. 1954).
84. 613 N.E.2d 936 (N.Y. 1993).
85. Id. at 938.
86. Id. at 939.
87. Id.
This statement, coupled with other statements in Stolarz, suggests a dichotomy in the
court’s approach to contract conflicts. Interest analysis remains the “preferred approach” when
“the policies underlying conflicting laws … are readily identifiable and reflect strong govern-
mental 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 146–47, most readers will be surprised to see that it lists only
two jurisdictions as following Brainerd Currie’s governmental interest analysis—California 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 introduc-
ing 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 Leflar’s 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 juris-
dictions elsewhere, insofar as they engage in the very weighing of state interests that Currie
88. See Reich v. Purcell, 432 P.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. Workmen’s Comp. Appeals Bd., 434 P.2d 992 (Cal. 1967); McCrossin v. Hicks
Chevrolet, Inc., 248 A.2d 917 (D.C. 1969); Lilienthal v. Kaufman, 395 P.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, 15 P.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. Ass’n 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 688–90.
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 Currie’s influence has disappeared. First, an interest
analysis traceable to Currie forms the core of most of the “combined modern” approaches fol-
lowed 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 Currie’s 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
Currie’s approach than all other states that follow a modern methodology. Similarly, for entirely
different reasons, two other states that follow the lex fori approach—Kentucky and Michigan—
are also in the close periphery of Currie’s camp. Although they do not overtly speak in terms
of interests, these states are statistically, if not ideologically, in tune with Currie’s approach
because they tend to produce the very results he advocated for in the majority of cases—the
application of the lex fori.
A. MODIFIED INTEREST ANALYSIS

Although California and the District of Columbia remain close to Currie’s original analysis, in
the sense that they resolve conflicts on the basis of state interests, neither jurisdiction appears
constrained by Currie’s 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. Harrah’s Club, 546 P.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.,
137 P.3d 914 (Cal. 2006); McCann v. Foster Wheeler LLC., 225 P.3d 516 (Cal. 2010).
56 Md. L. Rev. 1248, 1262–63 (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 defendant’s South Carolina plant. The law
of South Carolina, but not New Jersey, accorded defendant immunity from a tort action.
Jersey court put the interests of the two states on the scale and concluded, over a strong dissent,
that New Jersey’s interest in protecting New Jersey employees and sub-contractors was “not
strong enough to outweigh South Carolina’s interest”102 in protecting its employers. The court
applied South Carolina law.
Another example of identifying state interests in a way that seems to liberate interest anal-
ysis from some of its congenital biases is Gantes v. Kason Corporation,103 a products liabil-
ity case. Pursuant to Currie’s 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 Jersey’s 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 forum’s 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 forum’s interests in a non-protectionist way
is Kaiser-Georgetown Comminity Health Plan, Inc. v. Stutsman,107 a medical malpractice case.
Under Currie’s 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 dam-
ages. 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, California’s comparative impairment approach also entails interest-weighing,
albeit with a different name. Three well-known California cases, Bernhard v. Harrah’s Club,109
102. Eger, 539 A.2d at 1218.

103. 679 A.2d 106 (N.J. 1996).
104. The plaintiff ’s action was timely, under New Jersey’s two-year statute of limitations, but it was barred
by Georgia’s 10-year statute of repose for products liability claims.
105. Gantes, 679 A.2d at 111–12.
106. Id. at 113.
107. 491 A.2d 502 (D.C. App. 1985).
108. Id. at 509–10.
109. 546 P.2d 719 (Cal. 1976), cert. denied, 429 U.S. 859 (1976).
Kearney v. Salomon Smith Barney, Inc.,110 and Offshore Rental Co. v. Continental Oil Co.,111 illus-
trate 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 Baxter’s compara-
tive impairment approach, the court applied California law. The court found that California’s
interest in imposing civil liability on tavern owners “would be very significantly impaired if
its policy were not applied to defendant,” whereas “Nevada’s interest in protecting its tavern
keepers from civil liability … will not be significantly impaired”113 by imposing civil liability
on them under California law.114
The court reiterated Baxter’s statements to the effect that the process of comparative impair-
ment “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 inter-
ests 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. 137 P.3d 914 (Cal. 2006).

111. 583 P.2d 721 (Cal. 1978).
112. A fourth case (and the latest), McCann v. Foster Wheeler LLC., 225 P.3d 516 (Cal. 2010), involves a
statutes-of-limitations conflict. It is discussed infra 537–39.
113. Bernhard, 583 P.2d at 725.
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. at 723.
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. at 724.
118. S. Symeonides & W. Perdue, Conflict of Laws 296.
119. 137 P.3d 914 (Cal. 2006).
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 California’s interests “would be
severely impaired if its law were not applied in this context, whereas Georgia’s 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 Georgia’s 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 decision and to
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 Georgia’s 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 defendant’s 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 Louisiana’s interest in applying the rule was “stronger, [and] more current”129
than California’s corresponding interest, and that the application of California law “would
120. Id. at 933.

122. Id. at 937.
123. Id. at 935.
124. Id. at 936.
125. Id.
126. Id. at 938–39.
127. 583 P.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 defendant’s employees. California, but not Louisiana, provided employers
with an action for the loss of services of a key employee.
129. Offshore, 583 P.2d at 729.
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, California’s interest in applying its “unusual and outmoded statute
[was] comparatively less strong.”132 Thus, Offshore appeared to repudiate not only Currie’s pro-
scription of interest-weighing, but also Baxter’s more subtle formulation that the court should
only weigh the effects of the application (or non-application) of a state’s 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, Currie’s 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 Kentucky’s lex fori approach. Most casebooks classify Foster as
an interest-analysis case, even though the majority opinion contains no reference to Currie’s
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 court’s heavy reli-
ance on the forum’s contacts and the absence of any discussion of policies suggest a contacts-
based lex fori approach that is potentially more parochial than Currie’s. 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
contacts—not necessarily the most significant contacts.”135
Foster arose out of an accident in Ohio, which resulted in the death of a Kentucky domicili-
ary, 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 Currie’s writings. But the
court did echo Currie’s views when it stated that the court’s “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. at 728.

131. Id. at 726.
132. Id. at 728.
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., 134 P.3d 111 (Nev. 2006).
134. 484 S.W.2d 827 (Ky. 1972).
135. Id. at 829.
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 court’s decision.
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 Currie’s
solution to true conflicts, the court concluded that “if there are significant contacts—not neces-
sarily the most significant contacts—with 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 court’s interpretation of its holdings is entitled to respect, the court’s failure to
explain the absence of “valid reasons” for displacing forum law (other than reciting forum con-
tacts) makes its analysis vulnerable to the same criticism for parochialism as Currie’s own theory.141
Sutherland v. Kennington Truck Service, Ltd.142 illustrates Michigan’s 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 Michigan’s three-year statute of lim-
itation, but Ohio and Ontario’s 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 state’s law, but have to expend con-
siderable time and resources to learn another state’s 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 reason”145 exists to do otherwise. In deter-
mining 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 at 829.

138. Id.
139. Id.
140. Id.
141. For a subsequent, but equally extreme, application of Kentucky’s 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 appli-
cation 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 character-
ization 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 524–30. Rather, the court employed a full-fledged choice-
of-law analysis, leading to the same result.
144. Sutherland, 562 N.W.2d at 470.
145. Id. at 471.
has an interest, then the court determines “if Michigan’s 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 over-
come, and [the court] need not evaluate Michigan’s 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 defendant’s 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
Michigan’s 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 state’s “interest” in the modern sense of that word.150
The two versions of the lex fori approach appear to differ in phraseology and nuance regard-
ing the burden for rebutting the lex fori presumption. Both versions, however, remain statisti-
cally, if not ideologically, attuned with Currie’s approach, in that they tend to produce the very
results he advocated in the majority of cases—the 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 Leflar’s choice-influencing considerations, including the
better-law criterion, was New Hampshire in 1966.151 Since then, Wisconsin (1967),152 Rhode
146. Id.
147. Id. at 473.
148. Id. at 472.
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 lia-
bility 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 Michigan’s favorable
laws and to avoid Croatia’s less favorable laws.” Id. at 48.
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
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 Leflar’s approach.156
A. EARLY CASES: THE BIASES

The early cases that followed Leflar’s 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 Leflar’s
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 source—the judicial subjectivism that
the better-law approach legitimizes.
A preference for forum law is a byproduct of the human tendency to gravitate to the famil-
iar. With human nature being what it is, it is not surprising that judges tend to consider the
forum’s 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
Leflar’s 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. Smith’s Pie Co., 550 S.W.2d 453 (Ark. 1977); Schlemmer v. Fireman’s 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 appli-
cation 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 forum’s
Indeed, an earlier survey of the cases decided in the five states that followed Leflar’s approach
for tort conflicts found only four supreme court cases in which the court admitted that the for-
eign law was better than the forum’s.158 In three of those cases, the court applied the foreign
law, but—perhaps not coincidentally—in 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, per-
haps 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 plain-
tiffs. 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 state’s law fairly articulates that policy, it follows that the “better rule of law” will
tend to be the forum state’s law.” Id.
159. Id. at 83.
160. Id. at 83–84.
161. Id. at 84–85.
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]‌Minnesota’s 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 Minnesota’s
pro-defendant law to protect a Minnesota defendant in an action brought by a North Dakota plaintiff
injured in North Dakota).
B. RECENT CASES: ECLECTICISM AND DE-EMPHASIS

OF THE BETTER-LAW FACTOR
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 Leflar’s 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 Leflar’s approach with
several other approaches.163 Inevitably, this combination works at the expense of Leflar’s
emblematic factor—the “better-law” factor. This may explain the Minnesota Supreme Court’s
statement that “this court has not placed any emphasis on [the better-law] factor in nearly
20 years.”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 tradi-
tional 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 con-
tract conflicts;168 Hawaii follows a combination of interest analysis, the Restatement (Second),
163. See supra 148–49.

164. Nodak Mut. Ins. Co. v. Am. Fam. Mut. Ins. Co., 604 N.W.2d 91, 96 (Minn. 2000).
165. See Symeonides, Choice-of-Law Revolution 87.
166. See Gilbert Spruance Co. v. Penn. Mfgrs. Ass’n 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. Ass’n v. Algernon Blair, Inc. 565 A.2d 564 (D.C. App. 1989) (apply-
ing 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 Leflar’s approaches, but it applied them in a way that resembled interest
analysis.).
and Leflar’s 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 con-
flicts, but also draws from Cavers’s 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, 748 P.2d 1362 (Haw. 1988) (contract conflict interpreting Peters v. Peters, 634 P.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. Farmer’s 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 205–06).
172. See infra, Chapter 17.
PA R T T H R E E
CHOICE OF LAW
IN PRACTICE
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 methodol-
ogy. 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 aban-
donment 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 differ-
ent) 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 descrip-
tion 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

OF THE 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 author’s con-
tribution in Hay, Borchers & Symeonides, Conflict of Laws 790–1083. For additional bibliography, see
Weintraub, Commentary 394–503; McDougal, Felix & Whitten, American Conflicts 447–87.
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 problem—some 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 posi-
tion he “codified” in his first Restatement as the lex loci delicti rule. The American conflicts
revolution was a rebellion against many aspects of Beale’s 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 vic-
tim’s 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 decedent’s domicile.
Two years later, the same court faced a similar dilemma in Emery v. Emery5—whether 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’ com-
mon 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 under-
lying 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

3. See supra 54.
4. 264 P.2d 944 (Cal. 1953).
5. 289 P.2d 218 (Cal. 1955).
6. 95 N.W.2d 814 (Wis. 1959) (applying Wisconsin’s 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 of tort).
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 loci rule.
2. Babcock and Schultz

As previously noted, the Babcock court distinguished between the issue of a host-driver’s
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 defendant’s
exercise of due care.”9 The court applied the law of New York, the parties’ common domicile,
to the first issue, because:
Although the rightness or wrongness of defendant’s conduct may depend upon the law of the
particular jurisdiction through which the automobile passes, the rights and liabilities of the par-
ties 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 applica-
tion of its law.”11
However, the court also noted that, with regard to the latter issues, that is, the defendant’s
exercise of due care, the state in which the conduct occurred would “usually have a predomi-
nant, 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 proposition—the 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 124–27).

9. Id. at 284.
10. Id. at 285.
11. Id.
12. Id. at 284.
13. Currie came to a similar distinction when he differentiated between compensatory and conduct-
regulating laws. See Currie, Selected Essays, 58–61, 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 Ehrenzweig’s 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 Auslandsberührung und Theorie
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 state’s “interests in
protecting the reasonable expectations of the parties who relied on it to govern their primary con-
duct 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 State’s admonitory inter-
est 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 Jersey’s charitable-immunity rule and New York’s 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 New York 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 privatrechts—Begriffe 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 156–58. 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-regulating rule).
15. Schultz, 480 N.E.2d at 684 (quoting Babcock, 191 N.E.2d at 284).
16. Id. at 684–85.
17. Id. at 685.
18. Id. (footnote omitted).
19. See, e.g., Collins v. Trius, Inc., 663 A.2d 570 (Me. 1995); O’Connor v. O’Connor, 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., 995 P.2d 1002 (Mont. 2000); Bauer v. Club Med Sales,
Inc., 1996 WL 310076 (N.D. Cal. May 22, 1996); Ellis v. Barto, 918 P.2d 540 (Wash. App. 1996), review
denied, 930 P.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 terminol-
ogy 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 New York.
Although the quoted terms are not self-defined (and the codification’s 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 par-
ties’ 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 excep-
tions, the first of which exempts from the scope of the common domicile rule “the standard
of care by which the conduct is judged”26 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 codification’s drafter approves of the particular result in Schultz is unim-
portant. 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, 848–54 (1997).
22. See infra at 182–83.
23. See infra at 185.
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 provi-
sion, see Article 46 of the Puerto Rico Draft Code.
25. See La. Civ. Code Art. 3544 (2015) (discussed infra at 201–02). 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 pro-
vided in other articles. For a similar provision, see Article 47 of the Puerto Rico Draft Code.
26. Or. Rev. Stat. § 15.440(2)(a) (2015).
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 codi-
fication 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 preexist-
ing 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.
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 Act’s 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 actu-
ally 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 from Each Category

a. Conduct-R egulating Rules
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 presump-
tions 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 vehic-
ular collision, the driver of the rear car is presumed to be at fault.
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 for-
eign 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 inconsis-
tent 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 pur-
pose 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 “inter-
ference with contract,” or “alienation of affections,”39 and grant a civil action against the actor.
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 Law 88–89.
35. For a critique of Rome II on these points, see S. Symeonides, Rome II and Tort Conflicts: A Missed
Opportunity, 56 Am. J. Comp. L. 173, 211–15 (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), reh’g denied (Oct. 14, 2014), cert. denied,
b. Loss-Distributing Rules
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 worker’s 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 tortfeasor’s death; (7) rules dealing with contribution or
indemnification among joint tortfeasors;41 (8) rules providing for no-fault automobile insur-
ance;42 (9) statutes of repose, which protect manufacturers from suits filed after a designated
number of years from the product’s first use; (10) corporate-successor liability or non-liability
rules; and (11) direct action statutes—namely, statutes that allow the victim to sue the tortfea-
sor’s insurer directly.
B. THE VALIDITY OF THE DISTINCTION:

SEPARATING PURPOSE AND EFFECT
Implicit in the distinction between conduct-regulating and loss-distributing rules are cer-
tain assumptions about state interests and the spatial operation of laws. One assumption is
that a state’s policy of deterring substandard conduct is implicated whenever such conduct
occurs in, or causes injury within, that state’s territory, regardless of whether the involved
parties are domiciled there. Another assumption is that, although a state’s 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 ter-
ritorially 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, 57 P.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
in 2010.
41. See P. Borchers, The Return of Territorialism to New York’s 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 rule’s 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 har-
mony, (2) protect insurers, or (3) protect the estate or the community property and its credi-
tors. 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 one’s 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 assur-
ance 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 lawmaker’s 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 particu-
lar conduct—be 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 every day.
43. Id. at 1252.

44. Id. at 1254.
45. One is on more solid ground in arguing that a non-immunity rule, such as New York’s 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 actor’s 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 summar-
ily. A subsequent New Jersey case adopted Jasen’s 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.
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” sug-
gests, the purpose of the rule is to punish the individual tortfeasor, as well as to deter other poten-
tial 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 OF THE DISTINCTION:

IDENTIFYING THE PRIMARY 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. A good exam-
ple is a “dram shop act.”47 A dram 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 statutes”—namely, statutes that impose vicarious lia-
bility on car owners for injuries caused by a driver using the car with the owner’s 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 irre-
sponsible 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 state’s decision not to impose punitive damages is moti-
vated 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 237–39, 244–45, 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 act—or in enacting an anti-dram shop act—a state may
be motivated by loss-allocating, rather than conduct-regulating, considerations—namely, 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 239–40, along with other conduct-regulating
conflicts, because most cases characterize these statutes as conduct-regulating.
Torts 187
In cases involving such mixed-purpose rules, the key is to identify the rule’s primary pur-
pose, as the New York Court of Appeals instructed in Padula v. Lilarn Properties Corp.50
Section 240 of New York’s 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
New York’s highest court had the opportunity to consider the matter in Padula. In this case,
a New York worker invoked Section 240, in an action filed against a New York defendant, for
injuries the plaintiff sustained in Massachusetts, when he fell from the scaffolding while work-
ing on the defendant’s building. After defining conduct-regulating rules as those that “have
the prophylactic effect of governing conduct to prevent injuries from occurring”51 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 240 “embod[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
parties—because conduct-regulating rules do not apply to conduct and injury occurring in
another state.
Thus, the Padula court provided a simple answer to a complex question: whenever a par-
ticular rule embodies both conduct-regulating and loss-distributing functions, one should
focus on the rule’s primary purpose, and proceed accordingly. The court’s 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 argu-
ments. 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 con-
trary 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 interpreta-
tion, 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. at 1002.
52. Id. at 1003.
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, requir-
ing that adequate safety measures be instituted at the worksite,” and holding them inapplicable to the
Massachusetts accident).
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 rule’s 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 at hand.
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 court’s 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’ con-
nections, 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 at all.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 some-
times 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 codification’s two articles that provide for conduct-regulation
(3543) and loss-distribution (3544) conflicts, respectively, lead to the same result, albeit for different rea-
sons. See S. Symeonides, Louisiana Exegesis, 731–32. 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. 733–34; 704–05, 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, sug-
gests 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 resolv-
ing many tort conflicts.60 It is the proper starting point for determining when to apply the lex
loci and when not to—in 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 torts—deterrence and compensation—and that contempo-
rary 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 com-
peting 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 affects—or should affect—the court’s 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 took place.
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 deter-
rence 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
view today.
61. D. Cavers, The Choice-of-Law Process 139 (1965).
62. Id.
63. Accu-Tek, 47 F. Supp. 2d at 341.
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, pre-
cisely 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 aban-
donment 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-law rules.
B. DEFINING THE TYPICAL PATTERNS

1. The Pertinent Contacts
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’ domi-
cile, 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 prin-
cipal place of business in New York should be treated as a New York 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 govern-
ing 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 event—the injury—and 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-border torts.
2. The Content of the Involved Laws

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, depend-
ing 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
in which:
(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 state’s 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 Currie’s assumptions, his labels for these categories
are problematic, because they prejudge the answer to the basic question—whether, in fact, a
state has an interest in applying its law to the particular case—a 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 defama-
tion 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 100–03.
often answer differently.70 For this reason, this chapter employs categorizations that are descrip-
tive, but non-prescriptive. Rather than being dependent on subjective assumptions about
each state’s ostensible or real interests, the terms “direct” and “inverse” objectively describe
the content of each state’s substantive laws: (1) direct conflicts are those in which the applica-
tion of each state’s 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 state’s law favors the party affili-
ated with the other state (“each for the other”). These terms are also non-prescriptive, because
they neither prejudge the court’s own categorization of the conflict nor its ultimate outcome.
3. The Typical Fact-L aw Patterns

in Conflicts Involving Two States
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 typi-
cal patterns of loss-distribution conflicts. These patterns are described below and depicted in
Table 13, infra.
(1) Common-domicile cases—namely, 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 state’s 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)
(Pattern 1); or
(b) favors the defendant (while the law of the state of the tort favors the plaintiff)
(Pattern 2).
(2) Split-domicile intrastate tort cases—namely, cases in which the tortfeasor and the vic-
tim 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 defendant’s home-state, and
in which that state’s law:
(i) favors the defendant (while the law of the plaintiff ’s home-state favors the
plaintiff) (Pattern 3); or
(ii) favors the plaintiff (while the law of the plaintiff ’s home-state favors the defen-
dant) (Pattern 6); and
70. Indeed, as we shall see later, most courts do not subscribe to Currie’s assumptions. Many courts do
not employ his labels. But the courts that do employ them often reach different conclusions regarding
each state’s interests than Currie would have reached. For example, in many inverse conflicts—which
Currie would have labeled as “no-interest” cases—the 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.
Torts 193
(b) cases in which the conduct and the injury occur in the plaintiff ’s home-state, and
in which that state’s law:
(i) favors the plaintiff (while the law of the defendant’s home-state favors the
defendant) (Pattern 4); or
(ii) favors the defendant (while the law of the defendant’s home-state favors the
plaintiff) (Pattern 5).
(3) Split-domicile cross-border tort cases—namely, cases in which the parties are domi-
ciled 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 con-
duct occurs in the tortfeasor’s 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 in which:
(a) the law of each home-state favors the domiciliary of that state (Pattern 7); or
(b) the law of each home-state favors the domiciliary of the other state (Pattern 8).
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 fol-
lowing review is confined to them. Table 13, below, depicts these patterns for the reader’s con-
venience. In this table, the letters A and 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 recov-
ery, 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 A shaded cell means that, as
documented in the following pages, the courts apply the law of the state represented by the cell.
Table 13. Patterns in Loss-Distribution Conflicts Involving Two States

Defendant’s State of State of Plaintiff ’s Currie’s
Pattern# Domicile conduct injury Domicile Classification Classification
Common-Domicile Cases—Intrastate Torts
1 A b b A False False
2 a B B a False False
Split-Domicile Cases—Intrastate Torts
3 a a a B Direct True
4 a B B B Direct True
5 A b b b Inverse Unprovided
6 A A A b Inverse Unprovided
Split-Domicile Cases—Cross-Border Torts
7 a a B B Direct True
8 A A A A Inverse Unprovided
71. The quoted terms are borrowed from D. Cavers, The Choice of Law Process 139, et passim. (1965).
C. COMMON-DOMICILE CASES ARISING

FROM TORTS IN ANOTHER STATE
Of the 42 states that have abandoned the lex loci delicti rule, the vast majority (32 cases, or 76 per-
cent) did so in cases involving intrastate torts of the common-domicile pattern—namely, 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 97 percent) of the 32 cases applied the law of the common domi-
cile.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 85 percent) applied the law of the com-
mon 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 Table 14), 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.
Table 14. Common-Domicile Cases Arising from Torts in Another State

State of
Pattern # Defendant’s domicile State of conduct Injury Plaintiff ’s domicile
Pattern 1 (Babcock) A b B A
Pattern 2 (reverse Babcock) A B B 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 97 percent) 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, 634 P.2d 586 (Haw. 1981). This case arose out of a Hawaii traffic
accident, in which a New York domiciliary was injured while riding in a rented car driven by her hus-
band. Her suit against him, and ultimately his insurer, was barred by Hawaii’s interspousal immunity law,
but not by New York’s 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 immunity law.
74. The only case that did not apply the law of the common domicile, Peters, 634 P.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) (New York 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
Québec. Vermont’s law allowed a tort action, but Québec’s 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) (New York 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) (New York parties, Michigan accident,
and guest-statute); Beaulieu v. Beaulieu, 265 A.2d 610 (Me. 1970) (Maine parties, Massachusetts acci-
dent, and guest-statute); First Nat’l Bank in Fort Collins v. Rostek, 514 P.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 acci-
dent); Armstrong v. Armstrong, 441 P.2d 699 (Alaska 1968) (Alaska spouses, accident in Yukon terri-
tory); 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, New York 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 par-
ties, 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 acci-
dent); Brickner v. Gooden, 525 P.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., 671 P.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 owner’s liability law, Michigan parties, Virginia accident); O’Connor v. O’Connor, 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 146–50; Symeonides & Perdue, Conflict of Laws 203–09.
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. at 397.
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 bear-
ing on the determination of the relevant law.”84 The court found that Québec’s 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 Québec 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 domi-
cile 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 pat-
tern 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-stat-
utes,89 intra-family immunity,90 charitable immunity,91 compensatory damages,92 contributory
83. Id. at 394.

84. Id. at 394–95.
85. Id. at 395.
86. Id. at 395–96 (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 150–55; Symeonides &
Perdue, Conflict of Laws 210–11.
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, New York tort).
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) (Québec parties, Maine accident).
Torts 197
negligence,93 worker’s 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 accident state.
Eight of the 28 cases reached the opposite result, applying the pro-recovery law of the acci-
dent state, rather than the non-recovery law of the parties’ common domicile, in cases involv-
ing 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 Kentucky’s 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, 700 P.2d 19 (Idaho 1985) (Saskatchewan parties, Idaho accident); Jaiguay v. Vasquez,
948 A.2d 955 (Conn. 2008) (New York parties, Connecticut accident).
95. See Myers v. Langlois, 721 A.2d 129 (Vt. 1998) (Québec 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 par-
ties, Illinois accident); Dillon v. Dillon, 886 P.2d 777 (Idaho 1994) (statute of limitations treated as sub-
stantive, 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, Pennsylvania tort).
100. See Martineau v. Guertin, 751 A.2d 776 (Vt. 2000) (tort action versus administrative remedy, Québec
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 accident state.
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 Ontario’s pro-defendant
(Second). It can be explained by the fact that both the equities of the case and the court’s sym-
pathies 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 New York 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 hesi-
tation. For example, in Collins v. Trius, Inc.,110 the supreme court of Maine refused to apply
Maine’s 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 domi-
cile 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 better law.
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 men-
tally 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 Jersey’s 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, 272–75 (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 plain-
tiff, 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).
Torts 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
Table 15 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.
Table 15. Loss-Distribution Common-Domicile Conflicts

Pattern Cases Law Applied
Common Conduct + Pro-P Pro-D
Forum Non-
domicile Injury forum
Babcock pattern 34 33 (97%) 1 (3%) 33 1 31 3
Converse-Babcock 28 20 (71%) 8 (29%) 8 20 15 13
Totals 62 53 (85%) 9 (15%) 41 20 46 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 com-
mon domicile favors recovery more than the law of the state of conduct and injury).
■ Thirty-three of the 34 cases (or 97 percent) applied the pro-recovery law of the parties’
common domicile.
■ In all but 3 of the 33 cases, that state was also the forum state;
• 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 forum state.
■ 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 at 685.
• 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 85 percent) applied the law of the parties’ common domicile, regardless of the par-
ticular choice-of-law methodology each court followed. Chart 3, below, depicts these
percentages.114
Pattern 1
Yes, 53%
Pattern 1
Pattern 2 No, 2%
Yes, 32%
Pattern 2
No, 13%
Chart 3. Cases Applying Common-Domicile Law.
4. A Common-D omicile Rule

a. A Descriptive Rule
These numbers are convincing, especially because they come from courts of all modern meth-
odological 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 (tortfea-
sor) are domiciled in the same state, the law of that state governs [whether it favors the victim
(Pattern 1) or the tortfeasor (Pattern 2)].
114. These percentages remain essentially unaltered (in fact, they improve by 2 percent 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 96 percent)
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 72 percent) applied the pro-defendant law of the common domicile. Altogether, 40
cases (or 87 percent) 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
Torts 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 defen-
dant (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 exceptional cases.
b. Statutory and Quasi-Statutory Rules

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 1665–66.
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 state’s law, regardless of whether it favors recovery; but (2) when
the common domicile is in the non-forum state, the courts apply that state’s 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: A Third Restatement or Rules of Choice of Law? 75 Ind. L.J. 615, 619–22 (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): A Very 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 at 687.
118. Trius, 663 A.2d at 573.
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 715–25; 759–66.
121. See Or. Rev. Stat. § 15.440(2)(a) (2015) (providing that the law of the common domicile of the tort-
feasor 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 1000–14.
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 rule’s drafter regarding its origin in Puerto Rican jurisprudence, see S.
Symeonides, Revising Puerto Rico’s Conflicts Law: A Preview, 28 Col. J. Tran’l L. 413, 421–26 (1990).
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 pro-
duce 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 indicates that:
(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;127 and
(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 codification’s 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 codification’s 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 codification’s general approach. Puerto Rico draft codif. Art. 39.3.
126. For documentation, tables, and discussion, see S. Symeonides, Codifying Choice of Law 72–81.
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, Québec, 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-domicile rule.
5. Cases Analogous to Common-D omicile Cases

a. Parties Domiciled in States
with Same Law
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 New York),
and if New Jersey (like New York) 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 Québec, respectively, and both of these provinces had a guest-
statute, the resulting conflict would not differ in any material way from the cases of Pattern 2.131
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 ALI’s
Complex Litigation proposal, treat these cases as analogous to a common-domicile case, with-
out 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 gen-
eral escape clause of the codification dictates a different result.134
129. See id. at 91–92.

130. See id. at 87–89.
131. Yet, under the Neumeier rules, this result can come about only in a roundabout way. Rule 1 is tech-
nically inapplicable, because it requires the parties to be domiciled in “the same state” for that state’s 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 states—the par-
ties’ domiciles—have 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. App’x. 172 (2d Cir. 2010).
132. See S. Symeonides, Choice-of-Law Revolution 160–62; Hay, Borchers & Symeonides, Conflict of Laws
895–97.
133. Or. Rev. Stat. § 15.440(2)(b) (2015). See also La. Civ. Code Art. 3544(1) (2015) (“[p]‌ersons domi-
ciled 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
b. Parties to a 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 CASES—INTRASTATE TORTS

This Section focuses on split-domicile cases involving intrastate torts—namely, 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 domi-
ciliary 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 Table 16):
(a) Pattern 3: Split-domicile cases, in which both the conduct and the injury occur in the
tortfeasor’s 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
victim’s 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, 1761–62 (2008).
135. See S. Symeonides, Codifying Choice of Law 81–83 (with citations to Rome II and the codifica-
tions 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 1010–13.
Torts 205
Table 16. Split-Domicile Cases—Intrastate Torts—Direct Conflicts

State of State of
Pattern # Defendant’s Domicile conduct injury Plaintiff ’s Domicile
3 (Foster/Cipolla) a a a B
4 (Biscoe) a B B B
a. Pattern 3: Split-Domicile Cases in Which the Conduct,

the Injury and the Tortfeasor’s Domicile Are in a
State Whose Law Favors the Tortfeasor
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 defendant’s home-state, which had a guest-statute favoring the defendant and
his insurer. Foster applied the pro-plaintiff law of the victim’s domicile (which was also the
forum state), whereas Cipolla applied the pro-defendant law of the defendant’s domicile, which
was the accident and non-forum state.
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 contacts—not necessarily the most significant
contacts—with [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 Delaware’s guest-statute, which barred the Pennsylvania passenger’s suit against the
Delaware driver. The court found that Delaware’s contacts were “qualitatively greater” than
Pennsylvania’s and that Delaware’s policies—protecting host-drivers and ensuring stability
of insurance rates—were 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 court’s 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 state’s law just because a visitor
138. 484 S.W.2d 827 (Ky. 1972) (discussed supra 168–69; refusing to apply Ohio’s 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 at 829.
141. Cipolla, 267 A.2d at 856.
142. Id.
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 per-
sons 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 defendant’s 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 York’s
Neumeier Rule 2a;152 and, even the lex-fori153 and the better-law approaches.154
143. Id. at 856–57.

144. Id. at 856 (quoting D. Cavers, The Choice-of-Law Process 146–47 (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 Kentucky’s 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 165–71; Hay, Borchers & Symeonides, Conflict of Laws 904–10.
148. See Shuder v. McDonald’s 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. & Eng’g Co., 428 P.2d 898 (Or. 1967); Grover v. Isom, 53 P.3d 821 (Idaho
2002); Malena v. Marriott Int’l, 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 Mediterranée, 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 People’s 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. Nat’l 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., 921 P.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 victim’s wife sued the defendant in Oregon for loss of consor-
tium, a remedy available in Oregon but not Washington. The Oregon court applied Washington
law, reasoning that “Washington defendants should not be required to accommodate them-
selves to the law of the state of any traveler whom they might injure in Washington”; and that
“Washington’s interest in the matter, which was protective of Washington defendants, was para-
mount to Oregon’s 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 District’s 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 A concurring 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 Jersey’s
pro-plaintiff statute of limitation, noting that the New Jersey plaintiff “elected to travel to
Delaware from 1989 until 1998 for specialized medical treatment”161 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 state’s 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 Delaware’s “clearly articulated policy interest in regulating mal-
practice 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. 428 P.2d 898 (Or. 1967).

156. This explanation of the Casey rationale is from a subsequent case, Erwin v. Thomas, 506 P.2d 494,
497 (Or. 1973). See also Casey, 428 P.2d 898, 908 (Hollman, J., concurring) (“Washington citizens carry-
ing 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. at 641.
159. Id. at 647 (Williams, J., concurring).
160. 475 F.3d 497 (3d Cir. 2007).
161. Id. at 503–04.
163. Id. (quoting D. Cavers, The Choice of Law Process, 146–47 (1965)).
164. Id. at 506.
It is important to note that, although all 32 cases presented Currie’s 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 state’s other
contacts and interests.165 Neither these cases, nor the other 22 cases, followed Currie’s proscrip-
tion 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 them—at 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 tortfeasor’s home-state and that state’s
law favors the tortfeasor, that law governs (even if the law of the victim’s 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 codification’s general approach.171
b. Pattern 4: Split-Domicile Cases in Which

the Conduct, the Injury and the Victim’s Domicile
Are in a State Whose Law Favors the Victim
Pattern 4 is the converse of Pattern 3. Here, the conduct and the injury are both in the victim’s
home-state, which has a law that favors the victim, while the defendant’s 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., 921 P.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 Laws 262.
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 and 40.
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 codification’s 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 injury there.
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 Nevada’s immunity or Nevada’s 25,000-dollar cap
on damages. The court recognized Nevada’s interest in protecting the financial well-being of
Nevada entities, but it found this interest to be much weaker than California’s interest “in pro-
viding 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. Harrah’s Club,174
and it concluded that California had an even stronger interest in applying its law, because,
unlike Bernhard in which the defendant’s conduct had occurred in Nevada, in Hall both “the
State of Nevada’s activities and the [victim’s] 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 state’s 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 sus-
pected 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. 546 P.2d 719 (1976). Bernhard is discussed supra at 166 and infra at 244.
175. Hall, 141 Cal. Rptr. at 442.
176. Id. The U.S. Supreme Court upheld the constitutionality of this decision after noting, inter alia,
California’s “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 Nevada’s 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 Comm’n, 583 A.2d 1218 (Pa. Super. 1990); Skipper v. Prince George’s
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 Minnesota’s 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
173–77.
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. at 1361.
held that D.C. law governed, because “the District’s policies would be substantially more seri-
ously thwarted by nonapplication of its law … than would those of Virginia[.]‌”180 The court
found that “Virginia’s concern for the economic well-being of its counties … [was] not an
especially compelling one.”181 In contrast, the District’s “interests in deterrence of poten-
tial 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 tortfeasor’s conduct occurred outside the victim’s
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 tortfeasor’s conduct takes place
within the victim’s home-state. A person injured in her home-state by conduct in that state
should be able to rely on the protection of that state’s 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 victim’s
domicile] would be impaired if a person who enters the territory of [that] state were not
subject to its laws.”183 That state’s 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 victim’s home-state, and that state’s law favors
the victim, that law applies (even if the law of the tortfeasor’s 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. at 1362.

181. Id. at 1361.
182. Id.
183. D. Cavers, The Choice-of-Law Process 140 (1965).
184. Id. at 142.
185. Id. at 141.
186. Bledsoe v. Crowley, 849 F.2d 639, 647 (D.C. Cir. 1988) (Williams, J., concurring).
187. For the Neumeier rule, see supra, 155–56. For the Louisiana and Oregon codifications, see supra,
notes 168–71.
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 party’s
domicile are in a state whose law favors the other party. These “inverse” conflicts can be subdi-
vided into two patterns (depicted in Table 17):
(1) Pattern 5: Cases such as Neumeier v. Kuehner188 and Erwin v. Thomas,189 in which the
conduct and the injury occur in the victim’s 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 tortfeasor’s home-state, which has a law that favors the victim, who
is domiciled in another state.
Table 17. Split-Domicile Cases—Intrastate Torts—Inverse Conflicts

State of
Pattern # Defendant’s Domicile conduct State of injury Plaintiff ’s Domicile
5 (Neumeier) A b b b
6 (Hurtado) A A A b
Under Currie’s 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 Currie’s 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 out-
come of this litigation.”191 Washington’s defendant-favoring policy was not implicated, because
this case did not involve a Washington defendant, and Oregon’s 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, 155–56.

189. 506 P.2d 494 (Or. 1973), discussed infra, 211–12.
190. 522 P.2d 666 (Cal. 1974), discussed infra, 214–15.
191. Erwin v. Thomas, 506 P.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.”).
“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 state’s 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 Essays 152.

194. Erwin, 506 P.2d at 496–97. 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. at 496.
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 New York’s pro-
plaintiff law to a case arising from a New Jersey accident, involving a New Jersey plaintiff and New York
defendants); Butkera v. Hudson River Sloop Clearwater, Inc., 693 A.2d 520 (N.J. Super. 1997) (applying
New York’s non-immunity rule to the action of New Jersey plaintiffs, injured in New Jersey by the acts of
a New York charitable corporation, which was immune under New Jersey law).
196. See Labree v. Major, 306 A.2d 808 (R.I. 1973) (refusing to applying Massachusetts’s guest statute to
a case arising from a Massachusetts accident involving a Massachusetts guest and a Rhode Island driver;
applying Rhode Island’s 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. at 818.).
197. For example, in Farrell v. Davis Enters., Inc., 1996 WL 21128 (E.D. Pa. Jan. 19, 1996), a Pennsylvania
court applied Pennsylvania’s 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 509–10.
198. For documentation, see Symeonides, Choice-of-Law Revolution 179–84; Hay, Borchers & Symeonides,
Conflict of Laws 920–23. Of course, as Neumeier is binding on lower New York 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); O’Brien v. Marriot Int’l, 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 con-
cluded that neither state’s relationship was more significant, and that reliance on state interests
could not resolve the conflict. The court quoted Cipolla’s statement that defendants acting in
their home-state “should not be put in jeopardy of liability exceeding that created by their
state’s 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 apply-
ing 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 state’s 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 Wisconsin’s 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 Wisconsin’s cap on wrong-
ful 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 Restatement’s
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. 54 P.3d 1054 (Utah 2002).

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 205–06, text at footnote 143.
204. Miller, 470 A.2d at 1356.
205. 604 N.W.2d 91 (Minn. 2000).
206. 202 F. Supp. 2d 869 (E.D. Wis. 2002) (decided under Illinois conflicts law).
207. Nodak, 604 N.W.2d at 95 (emphasis in original).
208. Id. at 96.
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 wrong-
ful 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
state’s 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 Currie’s 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 California’s “primary purpose” in creat-
ing 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,
California’s 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 at 879.

210. 522 P.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, 522 P.2d at 670.
212. Id. at 672.
213. Id. For another California case applying California’s pro-plaintiff law (the Labor Code) for the ben-
efit of foreign plaintiffs, and at the expense of a California defendant, for conduct and injury in California,
see Sullivan v. Oracle Corp., 254 P.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’ “pres-
ence 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 Arizona’s 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 Pennsylvania’s pro-plaintiff compen-
satory damages law, rather than New Jersey’s pro-defendant law. The court reasoned that the
application of New Jersey law would not promote New Jersey’s interest in protecting defen-
dants, but would “impair Pennsylvania’s 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 notice—at least constructively—of Pennsylvania’s
law governing remedies for injuries caused by negligent conduct.”219
c. Summary and Rule

The majority of cases falling within Patterns 5 and 6 applied the law of the state that had three
of the four pertinent contacts—namely, the conduct, the injury, and one party’s 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 pat-
terns 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 Jersey’s contacts were “more substantial” than Idaho’s
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. at 694.
219. Id. at 695.
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-border torts.
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 avail-
able in appropriate cases, one can support the following rule:
Rule IV. When both the conduct and the injury occur in the home-state of one of the parties,
that state’s 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 Currie’s 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 con-
tacts, or factors other than Curie’s rationale of either the primacy or the residuality of the
lex fori.
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 con-
trast, 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 defendant’s 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, at 1651.
224. Id.
225. Id.
226. Id.
227. Id. at 1650.
228. See R. Sedler, Choice of Law in Conflicts Torts Cases: A Third 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 defendant’s home state, recovery
will be allowed.”). For similar rules, see B. Posnak, The Restatement (Second): Some Not so Fine Tuning
for a Restatement (Third): A Very 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 New York. 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 “excep-
tions” 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 exam-
ple, in Erwin, supra, Washington’s 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-law’s 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 husband’s previously
recognized common-law right to sue for his wife’s 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 com-
mon law of both states had followed a pro-defendant rule until the defendant’s home-state intro-
duced 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 dis-
agreement, 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 cer-
tainly 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, recov-
ery 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., 261 P.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).
built around the notion of state interests, runs into an impasse when neither state has an inter-
est. 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, Currie’s 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 Weinberg’s
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 out-
side 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 CASES—CROSS-BORDER TORTS

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 tortfeasor’s home-state and the injury in the victim’s home-
state. Depending on the content of each state’s law, these cases can be divided into two pat-
terns (depicted in Table 18): (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 (Pattern 8).
Table 18. Split-Domicile Cases—Cross-Border Torts

Pattern # Defendant’s Domicile State of conduct State of injury Plaintiff ’s Domicile
Pattern 7 a A B B
Pattern 8 A A A A
1. Pattern 7: Cases in Which the Conduct and

the Tortfeasor’s Domicile Are in a State Whose Law
Favors the Tortfeasor, while the Injury and the Victim’s
Domicile Are in a State Whose Law Favors the Victim
Pattern 7 is similar to Patterns 3 and 4, inasmuch as that in all three patterns each state’s 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 tortfeasor’s domicile, and the injury occurs in the victim’s 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 tortfeasor’s 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 victim’s 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 tortfeasor’s home-state and
place of conduct, or the victim’s home-state and place of injury.235
Despite these difficulties, American courts have shown little hesitation before applying the
law of the victim’s 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 242–47.
236. See S. Symeonides, Choice of Law in Cross-Border Torts: Why Plaintiffs Win, and Should, 61
Hastings L.J. 337, 374–79 (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 since 2009.
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. Children’s 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, 41–42 (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, 57–59 (2d Cir. 2000) (applying Rhode Island’s
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 New York); Monroe v. Numed Inc., 680 N.Y.S.2d
707, 708 (N.Y.A.D. 1998) (applying Florida’s 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 New York by a New York defendant); Brown v. Harper, 647 N.Y.S.2d 245, 246–48
(N.Y.A.D. 1996) (applying New York’s pro-plaintiff law to impose liability on a Pennsylvania dealer who
sold a car to an uninsured driver, who caused a New York accident that injured a New York 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, 330–33 (8th Cir. 1994) (applying Iowa’s
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, 38–41 (2d Cir. 1988) (applying Ontario law in an
action by a New York minor bitten by defendants’ dog in Ontario; defendants brought a third-party action
against the minor’s parents, claiming contribution and indemnification for their negligent supervision of
the child; such a claim was permitted by Ontario law, but not by New York law); Mascarella v. Brown, 813
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 victim’s 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-case basis.
One representative case from Pattern 7 is Kuehn v. Children’s Hospital, Los Angeles,244 which
was decided under Wisconsin’s 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 child’s bone
marrow. Under the law of Wisconsin, but not California, the action survived the victim’s death.
In an opinion authored by Judge Posner, the court held that Wisconsin law governed, based in
part on Wisconsin’s 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 pos-
sibility of having to account under Wisconsin law—the 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 foresee-
ability element was less clear, and this may partly explain why the court reached the opposite
result. A Delaware 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 Pennsylvania’s interest in protecting its citizens, but concluded that this inter-
est was “superseded by Delaware’s 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 con-
flicts, which in turn suggests that the two states’ interests are more or less equally strong and
F. Supp. 1015, 1018–20 (S.D.N.Y. 1993) (third-party action by a New York defendant against a New Jersey
corporation, seeking contribution and indemnification for medical malpractice committed in New York
by the New York defendant; applying New York 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 New York traffic accident, involving an Ohio victim, his Ohio employer, and a New York defen-
dant; applying New York law, which allowed the New York defendant to obtain indemnification from the
Ohio defendant, who would be immune from indemnification under Ohio law).
244. 119 F.3d 1296 (7th Cir. 1997).
245. Id. at 1302.
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. at 1181.
249. Id.
Torts 221
pertinent. One element that can tip the scales is the actor’s 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 physi-
cians 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 relation to it.
2. Pattern 8: Cases in Which the Conduct

and the Tortfeasor’s Domicile Are in a State
Whose Law Favors the Victim, while the
Injury and the Victim’s Domicile Are in a
State Whose Law Favors the Tortfeasor
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
Currie’s 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 con-
tacts are divided, with the conduct occurring in the tortfeasor’s home-state and the injury in
the victim’s home-state. This division makes Pattern 8 cases more difficult than the cases of
Pattern 5 or 6.
If the conflict involves only loss-distribution issues—such as when the state of conduct
provides more generous compensatory damages than the state of injury—then, under Currie’s
assumptions, the conflict will present the “no interest” paradigm, because neither state is sup-
posed 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 inter-
est 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 238–42.
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 Currie’s assumptions about state interests.
Specifically:
(1) None of the cases adopted Currie’s assumption that a state has no interest in apply-
ing 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 Currie’s “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 tortfeasor’s 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 manufacturer’s home-state and place of manu-
facture, 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 state’s 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 ques-
tion 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 Cárdenas
v. Muangman, 998 A.2d 303 (D.C. 2010); Kamelgard v. Macura, 585 F.3d 334 (7th Cir. 2009), reh’g 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. Nat’l 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 361–66.
254. For specifics, see Symeonides Cross-Border Torts 363–66. In most of these cases, the forum state was
also the state of conduct, and the courts based their choice of law on that state’s affirmative interest to
police conduct within its borders. See id.
Torts 223
3. Summary and Rules

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 Pattern 7.
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 state’s 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 8 cases.
The Louisiana codification has adopted a similar rule for loss-distribution conflicts fall-
ing 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, provided that:
(i) the injured person was domiciled in that state,

(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
198–200.
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 729–31. Article 41(b)(2) of the Puerto Rico
Draft Code is substantially identical.
However, the codification does not provide an a priori rule for Pattern 8 cases. Instead, it
relegates them to the codification’s 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 case—including factors such as the parties’ relationship, if any—is likely to reach a
better result than one pre-formulated ex ante.
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 50 years, 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 (includ-

ing 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 vic-
tim (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 Valentine’s
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 59–67. 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. at 62.
260. 407 F.3d 166 (3d Cir. 2005) (decided under Pennsylvania conflicts law).
Torts 225
Day, he drove it to New York to deliver roses and a bracelet to Nicole, a New York 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 New York, both of
which had statutes imposing civil liability on car owners for injuries caused by persons using
the car with the owner’s consent. But, unlike the New York statute, the Michigan statute limited
the owner’s liability to $20,000.
The court found that Pennsylvania had no interest in limiting the company’s liability,
whereas Michigan’s interest was “uncertain and tenuous” under the circumstances of this
case.261 In contrast, the court found that New York’s 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 New York had an interest in: “(1) [Nicole’s] full recovery from
a financially responsible party, (2) the compensation of New York vendors who furnish medical
and hospital care to [Nicole], and (3) recouping the State’s 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” (New York) 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 codification’s 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. at 178.

262. Id. at 177.
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 156–58.
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 New York conflicts law).
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 ques-
tion. 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 New York courts after Schultz sug-
gest 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
New York 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 New York traffic accident involving an Ontario
plaintiff and a Québec defendant, driving in separate cars. The conflict involved the issue of
damages for non-economic losses. Québec did not allow such damages; Ontario allowed them,
but it limited the amount; and New York allowed them without limits. The defendant invoked
the Rule 3 escape and, apparently realizing that his chances of convincing the court to apply
Québec 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 Québec resident “would expect that
the laws of the Province of Ontario would apply to an accident that occurred in New York.”272
The court noted that the analysis would differ if Ontario and Québec had the same law, but,
because they did not, “the situs of the accident (New York) is appropriate as a tie breaker.”273
269. Id. at 187.

270. See Symeonides, Choice-of-Law Revolution 206–07. One notable exception is Gilbert v. Seton Hall
Univ., 332 F.3d 105 (2d Cir. 2003) (decided under New York conflicts law), a tri-state conflict, involving
the same New Jersey charitable immunity rule, as in Schultz, and a New York 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 Jersey’s charitable immunity rule. The plaintiff was a Seton Hall
student, who was severely injured during a school rugby game held in New York. He was domiciled in
Connecticut, a state that, like New York, 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 New York, 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. at 118.
273. Id. (internal quotation marks omitted). The court also noted that “both plaintiffs and defendants
have purposefully associated themselves with the laws of New York[,]‌”and that “their presence … [there]
was not merely fortuitous.” Id. The “[p]laintiff traveled [regularly] through New York on his way to and
from his apartment and job in Maryland[,]” whereas the defendant, who was a truck driver, drove fre-
quently through New York. Id.
Torts 227
Another example is Edwards v. Erie Coach Lines Co.,274 which was decided by New York’s
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 col-
lided in New York 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 New York 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 New York 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’ argu-
ment that their position was identical to that of the Franciscan Brothers in Schultz. The court
noted that “[w]‌hile New York 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 Jersey’s 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 con-
duct 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 FOR LOSS-

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 desig-
nated below, in the following order:
(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 (Pattern 2)];
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 at 1044.
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.
(2) Split-Domicile Cases: If the injured party and the tortfeasor are domiciled in different
states and both the tortfeasor’s conduct, and the victim’s injury occurred in either party’s
domicile, then the law of that state governs [whether it favors the victim (Patterns 4 and
6) or the tortfeasor (Patterns 3 and 5)];
(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 pro-
vides 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 [(Pattern 7)].
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 2–4 and 6–7); 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 case law.
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
these cases.
The above rules are not phrased with the precision and the degree of detail that is neces-
sary 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, regard-
less 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 experi-
ence 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 conclu-
sion emerged that this content did not affect the outcome of the cases. Similarly, the cases
covered by Rule 2 were divided into four patterns (3–6), 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 rules—namely, rules
that, in the words of the New York 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 rule’s primary purpose or function, as determined
by the court through the interpretative process. “Rules of the road,” as well as rules that pre-
scribe 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 puni-
tive 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 spe-
cial 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-regulating rules.
B. GENERIC CONDUCT-REGULATION CONFLICTS

1. The Pertinent Contacts and Typical Patterns
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. A for-
eigner 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 Nat’l 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
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 signifi-
cant a priori factor in conduct-regulation conflicts, one can classify these conflicts into the fol-
lowing 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 in which:
(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 vio-
late the (“higher”) standards of the state of injury (Pattern 12).
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 defendant’s domiciles are blank, because, in
conduct-regulation conflicts, the parties’ domiciles are, in principle, irrelevant. Shading indi-
cates the state whose law is applied by the courts, as the following pages document.
Table 19. Patterns in Conduct-Regulation Conflicts

Plaintiff ’s
Pattern # Defendant’s domicile State of conduct State of injury domicile Classification
--- A A ---
9 False
--- a a ---
--- A B ---
10 False
--- a b ---
11 --- A b --- False
12 --- a B --- True
rule’s 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 rule’s 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
that state.
Torts 231
2. Pattern 9: Conduct

and Injury in Same State
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) aban-
dons its characteristic equivocation and declares that “[w]‌ith respect to issues relating to stan-
dards 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) , Reporter’s 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 con-
duct and whether the interest affected by the actor’s conduct was entitled to legal protection.”).
286. See Bertram v. Norden, 823 N.E.2d 478 (Ohio App. 3 Dist. 2004) (discussed infra, at 232–33); Melton
v. Stephens, 13 N.E.3d 533 (Ind. App. 2014), reh’g denied (Oct. 14, 2014); Parrott v. Severs Trucking, LLC,
422 S.W.3d 478 (Mo. App. S.D. 2014) reh’g 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, 930 P.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. Int’l 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. Nat’l 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),
reh’g 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 Int’l, Inc., 466 F.3d 558 (7th Cir. 2006); Lee ex rel. Lee v. Choice
Hotels Int’l, 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. Hardee’s Food Sys., Inc., 92 F.3d 702 (8th Cir. 1996); Leane v. Joseph
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, with-
out considering the parties’ domiciles. Conversely, some cases have held that the forum’s
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. A Michigan 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.
Entm’t 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); Wal–Mart 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 Entm’t 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 Commc’ns 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 Commc’ns 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 Int’l, 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) (misappropria-
tion 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), reh’g denied (Oct. 14, 2014); Parrott v. Severs Trucking, LLC, 422 S.W.3d 478 (Mo.
App. 2014) reh’g 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 (Ohio 2005).
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 snowmobil-
ing 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 rider’s 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 Illinois’s 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 par-
ties’ 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 passen-
gers 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 at 484.

296. Id.
297. 13 N.E.3d 533 (Ind. App. 2014), reh’g denied (Oct. 14, 2014).
299. Id. at 542 (quoting Simon v. United States, 805 N.E.2d 798, 807 n.12).
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 aris-
ing out of a single-car accident in Kentucky, an Illinois court held that Illinois’s 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 estab-
lish the plaintiff ’s contributory fault. The court noted that plaintiffs “cannot reasonably expect
that a foreign state’s 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 this issue.
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 per-
sons 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 one’s 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 evi-
dence of a seat belt’s nonuse. New York, 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 dam-
ages and the plaintiff ’s mitigation thereof. For this reason, the New York court characterized the New York
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 New York,
which was the domicile of both parties. Lankenau, 990 N.Y.S.2d at 396. See also Garcia v. Gen. Motors
Corp., 990 P.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
New York 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, pro-
hibited evidence of seat belt nonuse, but the plaintiff ’s home-state, New York, allowed evidence
of nonuse for the purpose of mitigating damages. A Connecticut court rejected the Canadian
defendant’s argument that the New York rule should apply. The court found that this rule was
a “regulatory law specifically aimed at drivers traveling upon New York roadways,” and thus
New York 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 Illinois’s comparative negligence rule, but not under Mexico’s contributory neg-
ligence 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 won’t 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 conflicts law).
310. Id. at 845.
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. at 846.
314. Id. at 845.
In Carris v. Marriott Int’l, 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 neg-
ligent because of the danger to children. So how would a hotel equip its airport shuttle van?316
Posner’s witty statements are correct, provided they are confined to issues of conduct regu-
lation. 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 intermeddling”319 to apply the law of the guest’s 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 conflicts law).
316. Id. at 561–62.
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 Mediterranée, 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-Cont’l 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 Int’l, 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 Int’l, Inc.,
1996 WL 470643 (E.D. La. Aug. 16, 1996); Naghiu v. Inter-Cont’l Hotels Group, Inc., 165 F.R.D. 413 (D.
Del. 1996); Nash v. Tindall Corp., 650 S.E.2d 81 (S.C. App. 2007), reh’g 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 Int’l,
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 state’s law supplants the balance of
the costs and benefits that Wisconsin’s law reflects.321
3. Pattern 10: Conduct and Injury

in Different States That Prescribe
the Same Standards of Conduct
Cases in which the conduct and the injury occur in different states also present the false con-
flict 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 own-
ers whose intoxicated patrons caused injury to another. A Massachusetts patron caused such
injury in Massachusetts, after becoming intoxicated in defendant’s Rhode Island tavern. The
court noted Rhode Island’s “substantial governmental interest”323 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 poli-
cies 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 owner’s 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 lat-
ter 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. at 1352.
324. Id.
325. See S. Symeonides, Choice-of-Law Revolution 221.
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 New York, had similar car-owner
liability statutes. The only difference was that the text of the New York statute limited its appli-
cation to cars with certain New York 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 New York, 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 in State

with Higher Standard and Injury in State
with Lower Standard of Conduct
The false conflict paradigm is also present in the cross-border torts falling within Pattern
11—namely, cases in which the tortfeasor’s conduct violates the “higher” standard of the
conduct-state, but not the “lower” standard of the injury-state—such 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 another state.
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, 83 percent 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. at 412.
328. Id.
329. For tabular presentation and discussion, see Symeonides, Cross-Border Torts 355–361. 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 con-
duct, 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 owner’s 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 Minnesota’s dram shop act to impose civil liability on a
Minnesota tavern owner whose intoxicated customer caused an accident in Wisconsin, injuring the plain-
tiff, who was also a Minnesota resident; Wisconsin did not have a dram shop act).
331. 534 A.2d 1268 (D.C. App. 1987) (applying the District of Columbia’s 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 shop act).
332. In both cases, the victim was also a domiciliary of the conduct-state. Thus, the application of that
state’s law could have also been based on that state’s 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
the text.
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 New York, 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 [statute’s] deterrent effect,” and that the “goal of deterring
unlawful [alcohol] sales [was] well served by preserving the vendor’s complete liability irrespective of
where the injury occurred[,]” and irrespective of the “fortuity that the purchasers were residents of
Pennsylvania.” Id. at 629–30).
334. In addition to Schmidt and Zhou, see Trapp v. 4-10 Inv. Corp., 424 F.2d 1261, 1264–65 (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, 180–81 (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
*2–3 (10th Cir. Nov. 2, 1994). But, in that case, part of the conduct also occurred in that state.
335. For cases reaching this result, see Garcia v. Plaza Oldsmobile Ltd., 421 F.3d 216, 221–22 (3d Cir.
2005); Gaither v. Myers, 404 F.2d 216, 221–22 (D.C. Cir. 1968); Aponte v. Baez, No. CV000802893, 2002
WL 241456, at *2–3 (Conn. Super. Jan. 30, 2002); Veasley v. CRST Int’l, 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, 659–60 (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,
107–08 (D.N.J. 1995); White v. Smith, 398 F. Supp. 130, 141–42 (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);
Inc.,336 which applied Iowa’s 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-owner’s liability statute. The place of
conduct, the District of Columbia, imposed civil liability on owners who leave their cars unat-
tended 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 DC’s interests, nor
did it generate a countervailing Maryland interest in applying its defendant-protecting rule.342
Farber v. Smolack, 229 N.E.2d 36, 38–39 (N.Y. 1967); Ames v. Cross, 575 N.Y.S.2d 991, 992–93 (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, 123–24 (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, 466–68 (La. App. 1 Cir.
1996); Stathis v. Nat’l Car Rental Sys., Inc., 109 F. Supp. 2d 55, 58 (D. Mass. 2000); Newcomb v. Haywood,
2003 WL 138404, at *2–3 (Mass. Super. Jan. 8, 2003); Kline v. McCorkle, 330 F. Supp. 1089, 1091–92 (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, 554–55 (Fla. App. 4 Dist. 1998); Arias v. Figueroa,
930 A.2d 472, 476–77 (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 355–56, 358–59.
336. 553 N.W.2d 896 (Iowa 1996).
337. Id. at 899.
338. Id.
339. 404 F.2d 216 (D.C. Cir. 1968).
340. Id. at 222.
341. Id. at 223.
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.”).
Torts 241
D’Agostino v. Johnson & Johnson, Inc.343 is another illustration that a state’s interest in deter-
ring substandard conduct within its territory is not diminished by the fact that the conduct
produces its effects in another state. In D’Agostino, 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
employee’s firing.
In a unanimous opinion applying interest analysis, the New Jersey Supreme Court held that
New Jersey’s 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 employ-
ment relationships … [but rather] about regulating the conduct of parent companies in New
Jersey that engage in corrupt practices through a subsidiary’s employees.”345 The court con-
cluded that the strength of New Jersey’s 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 Jersey’s “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
California’s 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 Act’s 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. at 316.
345. Id. at 311.
346. Id. at 316.
347. Id. at 315.
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).
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 anticom-
petitive conduct undertaken within California would advance the Act’s “overarching goals
of maximizing effective deterrence of antitrust violations, enforcing the state’s 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 in State with Lower

Standard and Injury in State with High Standard
Pattern 12 involves the most difficult cross-border torts. In this pattern, the conduct in ques-
tion 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 involv-
ing 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

352. Id. at 1112–13 (internal quotation marks omitted).
353. See Hernandez v. United States, 757 F.3d 249 (5th Cir. 2014), reh’g 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, 357–61 (Tex. App.—Dallas
2004); In re Vivendi Universal, S.A. Sec. Litig., 381 F. Supp. 2d 158 (S.D.N.Y. 2003); O’Keefe 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, 393–94 (D. Mass. 1988); Rakes v. Life Inv’rs 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 *5–6 (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, 1084–86 (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 Int’l 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 prosecu-
tion 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, repu-
diated 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, Scalia’s 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 87 percent 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, 83–84
(E.D. La. 1976); Bryant v. Silverman, 703 P.2d 1190, 1195–97 (Ariz. 1985).
358. Strassheim v. Daily, 221 U.S. 280, 285 (1911).
359. 509 U.S. 764 (1993) (discussed infra, at 646–48).
360. Id. at 796.
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,
1130–31 (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. at 2881.
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 368–74.
One group of cases falling within this pattern, and involving negligent conduct, are dram
shop act cases, such as Bernhard v. Harrah’s 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 defendant’s operation to the California-Nevada border, the defen-
dant’s active solicitation of California patrons, and the composition of defendant’s 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 Arizona’s common law, which imposed civil liability on a Nevada casino owner
under circumstances identical to those in Bernhard.369 The court compared Nevada’s interest in
“free[ing] tavern owners, and other alcohol purveyors such as casinos, from the cost and inconve-
nience of incurring either civil or criminal liability” with Arizona’s “strong interest in providing an
opportunity for its residents to recover full compensation from persons and businesses that con-
tribute to automobile accidents on Arizona’s highways … [and] in holding tortfeasors responsible
for their actions’ foreseeable effects in Arizona.”370 The court also noted the casino’s 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 defendant’s riverboat casino in Louisiana, drove into Texas and
caused injury there. The court noted that “Louisiana’s appalling insulation of casino boats
who use free or discounted liquor as the bait to entice gamblers, while ignoring the conse-
quences when those predictably intoxicated gamblers hit the streets in lethal vehicles[,]‌”374 was
within Louisiana’s 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. 546 P.2d 719 (Cal. 1976), discussed supra, at 166.

368. 820 P.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, 820 P.2d at 320.
371. Id. at 321.
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 Pete’s, Inc., 702 P.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. at 834.
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 liabil-
ity 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 California’s interests
“would be severely impaired if its law were not applied[,]” whereas Georgia’s 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 signifi-
cant 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 Georgia’s 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 Minnesota’s 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 bar’s proximity to the border, as well as the defendant’s knowledge that some of his customers
were Minnesotans, allowed Minnesota courts to assume jurisdiction and to apply Minnesota’s “better”
law, which imposed liability on the bar owner.
376. In Bourgeois v. Vanderbilt, 417 Fed. App’x. 605, 2011 WL 1849309 (8th Cir. 2011), a similar case
involving an accident in Arkansas, but a Louisiana victim, the court applied Louisiana’s anti-dram shop
act, thus sparing a Louisiana casino from liability under the Arkansas act.
377. 137 P.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, 1025–26 (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, 137 P.3d at 933.
381. Id. at 937.
382. Id. at 935.
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 defendant’s past conduct) should be dismissed
under Georgia law. Id. at 939.
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 acci-
dent occurs in a state that does impose such liability, the resulting true conflict falls within
Pattern 2. 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 insur-
ance 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 New York, alleging that the banks breached a legal duty to the plaintiffs by facili-
tating 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 New York
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 New York had “the greatest interest in regulating behavior within its borders.”390
In Elmaliach v. Bank of China Ltd.,391 New York’s Appellate Division disagreed with the
Second Circuit and held that Israeli law would govern a substantively similar case.392 The
Appellate Division acknowledged New York’s interest in regulating banks operating in New York,
but it concluded that, as the plaintiffs’ domicile and the place of the injuries, Israel had “a very
384. See Brown v. Nat’l Car Rental Sys., Inc., 707 So. 2d 394, 397 (Fla. App. 3 Dist. 1998); Sierra
v. A Betterway Rent-A-Car, Inc., 863 So. 2d 358, 362 (Fla. App. 3 Dist. 2003); Fu v. Fu, 733 A.2d 1133,
1149–50 (N.J. 1999); Piché 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, 459–60 (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, 1081–82 (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., 331 P.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, 919–20 (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
New York 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 ter-
rorist attacks inside Israeli territory[,]‌”393 and that interest was greater than any New York had.394
In Licci ex rel. Licci v. Lebanese Canadian Bank, SAL (Licci II),395 the Second Circuit reaf-
firmed its previous decision, disagreeing with the Appellate Division. The Second Circuit con-
cluded 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 actor’s 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 actor’s 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 New York law would not consider the bank’s 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 for Conduct-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 state’s 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 at 514.

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 dépeçage, 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 dépeçage 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 dépeçage, because the law of the same state will govern conduct-regulation
(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 con-
duct, 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
9–11 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 state’s 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 that law.
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 dépeçage between conduct-
regulation and loss-
distribution issues, see
previous note.
399. The same law will also govern any disputed, loss-distribution issues. See supra, at 223, 228 (Rule 4).
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 state’s law by a plead-
ing or amended pleading.”402 Presumably, the victim will make this request only when the con-
duct 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 pat-
tern in which the two sets of rules will lead to a different law, and thus dépeçage, 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 dépeçage 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 cases—common-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 applicable law.
C. PUNITIVE-DAMAGES CONFLICTS

1. Introduction
Rules imposing punitive damages are, par excellence, conduct-regulating rules, in the “prophy-
lactic” or “deterrence” sense, described by the New York Court of Appeals.404 But, as the adjective
“punitive” suggests, these rules are also meant to punish, not just to deter. Punishment or retribu-
tion 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 egregious-
ness of the specific misconduct, and the wrongdoer’s 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,
515–16 (1990). For a muted response, see S. Symeonides, Louisiana Exegesis 713–14.
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 codification’s general approach, in which case the law of the other
state applies to that issue.
403. See supra, at 224.
404. Padula v. Lilarn Props. Corp., 644 N.E.2d 1001, 1002 (N.Y. 1994).
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 simi-
lar 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 victim’s harm or loss.405
The fact that compensatory damages are proportional to the victim’s loss explains why they
often cannot effectively punish or deter economically powerful wrongdoers, especially corpo-
rate 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 differ-
ences 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 puni-
tive 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 state’s 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
2. The Pertinent Contacts

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 tortfeasor’s 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 suf-
fered by reason of the defendant’s 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. Int’l L. 1, 2–3 (2003).
407. Yet, precisely because punitive damages are sought, and their prerequisites proven, by private plain-
tiffs, 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 defendant’s 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 pro-
hibits punitive damages in all cases. Even the mixed jurisdiction of Louisiana allows punitive damages for
Torts 251
and deter tortfeasors, rather than to compensate victims—who, ex hypothesi, are made whole
through compensatory damages—means that the victim’s 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 tortfeasor’s domicile, (2) the place of the wrongful contact, and (3) the place
of the resulting injury. A state 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 effects—the injury—has a right to determine which sanc-
tions are appropriate for such conduct. Finally, the state of the defendant’s 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 underly-
ing 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 pat-
terns. The last three columns represent the state or states that have the relevant contacts: the
place of injury, the place of the tortfeasor’s (hereafter “defendant”) conduct, and the defendant’s
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 puni-
tive damages is:
(1) Entirely appropriate in cases falling within Patterns 13–16;

(2) Defensible in cases falling within Patterns 17–19; and
(3) Inappropriate in cases falling within Pattern 20.
The balance of this Section examines the cases of each pattern, in the above order.
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 of money.
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 abso-
lute 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.
Table 20. Patterns in Punitive Damages Conflicts

Pattern Defendant Conduct Injury Plaintiff
13 Pun. Pun. Pun. ---
14 Pun. Pun. No pun. ---

15 No pun. Pun. Pun. ---
16 Pun. No pun. Pun. ---
17 Pun. No pun. No pun. ---

18 No pun. Pun. No pun. ---
19 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 for-
mer 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 con-
duct in the future. Even if the victim’s 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 victim’s home-state. In most cases, the forum’s 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 forum’s policies.
4. Pattern 14: State(s) of Defendant’s

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 con-
tacts: place of conduct, place of injury, or defendant’s domicile. Most civil law systems take exactly the
opposite position. For a discussion of the Swiss position, see S. Symeonides, Punitive Damages 3–4, 31–33.
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 tort-
feasors, 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 Int’l Airport, Denver, Colo., on Nov. 15, 1987,414 a case aris-
ing from the crash of a passenger plane in Colorado. In this case, Texas was both the airline’s
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 effect that,
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 sig-
nificant,” 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., Lewis–DeBoer 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, 114 P.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. at 1453.
417. Id.
418. Id. Conversely, said the court, the knowledge that the law of a corporation’s 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.
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 Iowa’s punitive-damages law applied
to the insurer’s 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 inju-
ries[,] … Iowa ha[d] a significant interest in using punitive damages to punish bad faith con-
duct that occurs in Iowa[,]”422 and “[f]ailure to apply Iowa law … would wholly frustrate Iowa’s
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 manufacturer’s 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 product’s defect in that state several years
earlier, but it failed to correct it or warn users accordingly. The court also rejected the defen-
dant’s argument that Washington’s 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 pro-
tecting 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. Iowa 1998).

420. Id. at 1162.
421. Id. at 1165.
423. Id. at 1164.
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); Lewis–DeBoer v. Mooney
Aircraft Corp., 728 F. Supp. 642 (D. Colo.1990).
425. 210 P.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 patient’s heart.
427. Singh, 210 P.3d at 339.
428. 948 A.2d 686 (N.J. Super. A.D. 2008).
Torts 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 Alabama’s lack of a countervailing interest,430 “amply justifie[d]”
the application of New Jersey’s strict products liability law, liberal discovery rule, and punitive
damages, “given defendant’s 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 defendant’s 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 victim’s 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 injury—here, Michigan—unless 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 victim’s home-state and the place where
the product was purchased and caused the injury. Thus, the court was “unable to conclude” that
Illinois’s 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 respec-
tive 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 con-
trast, 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 696–97.

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 obtain-
ing full compensation for his injuries.”).
431. Id. at 698.
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 injury there.
434. Townsend, 879 N.E.2d at 905, 908, 909.
435. Id. at 904, 909 (quoting Restatement (Second) § 146, cmt. c.).
436. Id. at 906.
437. Id. at 907.
438. See id. at 909 (“Michigan has an equally legitimate interest in the remedies to be afforded its resi-
dents who suffer such tort injuries.”).
439. Townsend ex rel. Townsend v. Sears, Roebuck & Co., 858 N.E.2d 552, 559–60 (Ill. App. 2006). See
also id. at 560 (noting that, because Illinois was the defendant’s principal place of business and the state
pro-defendant law, because such application “would not materially advance the goal of pro-
tecting its resident producers … in this case[,]‌” and Michigan’s 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 state’s law, and the fact that he acted
in the other state destroys any argument of unfair surprise from the application of the latter
state’s law.
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 Wyoming’s 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 high-
ways 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 “Wisconsin’s
interest outweigh[ed] Michigan’s interest[,]‌”446 because Wisconsin had a “strong state inter-
est 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 stan-
dards to effectuate the regulatory policy reflected in its law.”).
440. Id. at 559.
441. A functionally 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, 500 P.2d 524, 526 (Wyo. 1972)).
444. Id.
445. 878 F. Supp. 1021 (E.D. Mich. 1995).
446. Id. at 1023.
447. Id. at 1024.
Torts 257
In Villaman v. Schee,448 the court applied Arizona’s punitive-damages law to a wrong-
ful 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 Pennsylvania’s punitive dam-
ages 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 Wisconsin’s interest in protecting
its resident defendant from excessive liability was “outweighed by Iowa’s 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 respon-
sible for … [the] misconduct … [and] in deterring such misconduct and occurrences in the
future[.]”456
6. Pattern 16: State(s) of Injury

and Defendant’s Domicile
Impose(s) Punitive Damages
In Pattern 16, a defendant domiciled in a state that imposes punitive damages engages in con-
duct in another state that does not impose punitive damages, and he or she causes injury in
the defendant’s 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. at 77.
452. Id. at 77–78.
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 Pennsylvania’s punitive-damages law to an action filed
by a New York guest against the Florida owner of a Pennsylvania resort for injury suffered on the prem-
ises: “[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
as unlikely—when, in the same case, the defendant’s 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 pat-
tern. 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 conse-
quences 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 Defendant’s

Home-S tate Imposes Punitive Damages
In Pattern 17, the defendant’s 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 defendant’s 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 defendant’s 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 puni-
tive damages,458 a few courts have allowed them, by applying the law of the defendant’s
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 puni-
tive damages). Also included in this group are certain products liability cases (discussed in the next chap-
ter), in which the court found that the manufacturer’s 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 plane’s 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).
Torts 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 driver’s conduct occurred in Nebraska, his employer’s 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 pun-
ish 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 impos-
ing 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 Nebraska’s
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 the State of Conduct

Imposes Punitive Damages
In Pattern 18, the state of conduct imposes punitive damages (and thus has an interest in deter-
ring the particular conduct), while the defendant’s 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
defendant’s principal place of business is Bryant v. Silverman, 703 P.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 [defendant’s] conduct.” Id. at 1196.
460. Fanselow, 213 F. Supp. 2d at 1084 (internal quotation marks omitted). The court rejected the argu-
ment 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.
the defendant). This difference produces a true conflict between the laws of the state of con-
duct and the state of the defendant’s 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 con-
cluding 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 Iowa’s 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, involv-
ing 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’ domi-
ciles, 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 state’s law.
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. Iowa 1995).
466. Id. at 1410.
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 airline’s principal place of business and the place where the corporate decisions,
regarding the maintenance of the aircraft and the training of its flight crew, were made.
Torts 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 plane’s manufacturer
and the airline company. The manufacturer’s home-state, Missouri, allowed punitive damages,
but the state of manufacture, California, did not. The airline’s home-state, New York, 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 disal-
lowing punitive damages.”471
9. Pattern 19: Only the State of Injury

Imposes Punitive Damages
In Pattern 19, the state of the injury imposes punitive damages, but the state (or states) of the
defendant’s 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 victim’s 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 victim—interests in punishing conduct that causes inju-
ries 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 615–16. 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, 762–63 (D. Md. 2012) (stating that
the place of injury is “simply fortuitous with respect to the punitive damages issue.”) (internal quotation
marks omitted).
the law of the defendant’s 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 dam-
ages.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 torts—namely, 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.
A court 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 torts—products liability—this 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. 8:06–cv–1787–T–24–TBM, 2014 WL 2722483 (M.D. Fla. June 16, 2014); Guenther v. Novartis
Pharms. Corp., No. 6:08–cv–456, 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. Ohio 2014).
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 defen-
dant’s conduct Alabama may consider evidence of the defendant’s 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 victim’s
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 defendant’s domicile and place of con-
duct 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 defendant’s domicile and place of conduct). In both cases, the foreseeability
condition was satisfied.
478. See S. Symeonides, Choice-of-Law Revolution 357.
Torts 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 (New York), against a Japanese defendant, who manufactured a car
in Japan, a country that does not allow punitive damages. But the car reached the New York
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 New York law, was a
foreseeable and insurable risk that the manufacturer should have expected to bear in exchange
for deriving financial benefits from the New York 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 dam-
ages) 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 victim’s status as a non-
resident, nor the fact that he shared a Michigan affiliation with the defendant, detracted from
Pennsylvania’s interest in applying its punitive-damage rule. The court reasoned that the pur-
pose 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 victim’s domicile and the place where he acquired
the product. Instead, the court applied the law of Michigan, the manufacturer’s home state
and the place of manufacture, which prohibited punitive damages. The court acknowledged
Pennsylvania’s interests “in punishing defendants who injure its residents and … in deter-
ring them and others from engaging in similar conduct which poses a risk to Pennsylvania’s
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 generat-
ing revenues.”486
479. See id. at 254–56.

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. at 471.
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
The Apple court, without mentioning Kelly, turned the migration argument around, by
saying that “Pennsylvania’s 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 defendant’s argument for
applying Texas law, which favored the defendant.489 The court characterized this as a true con-
flict, in which Pennsylvania had an interest in “protect[ing] its citizens from defective prod-
ucts and … encourag[ing] manufacturers to produce safe products[,]” while Texas wanted to
“promote the interests of [its] industry.”490 Noting that each state’s interests “would be impaired
by the application of each other’s law,”491 the court decided to apply Pennsylvania law, because
Pennsylvania was the place of injury, the plaintiff ’s domicile, the place of the product’s acquisi-
tion, 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 defendant’s] 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 product’s 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 Rico’s 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 defendant’s domicile).
487. Apple, 2004 WL 3218425 at *1–2.
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 defendant’s principal
place of business, but also the place of the car’s 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 *3 n.1.
490. Id. at *3.
491. Id.
492. Id.
493. 169 Cal. Rptr. 3d 823 (Cal. App. 2014), as modified on denial of reh’g (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 its law.
The court rejected Ford’s 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 A company, 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 Ford’s 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 Michigan’s 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 declara-
tion 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. at 835.
496. Id. (internal quotation marks omitted).
497. Id. 835–36.
499. Id. at 834.
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 manufacturer’s 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. at 359.
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 appli-
cation 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 puni-
tive 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 miscon-
duct.”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 dam-
ages laws to deter conduct by corporations doing business in Missouri that harms Missouri
residents.”505
10. Pattern 20: None of the Above

(Victim’s 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 victim’s home-state imposes such dam-
ages, 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 at 834.

502. Id. Two other products liability cases involved claims for punitive damages against Ford. One
of them rejected Ford’s arguments and allowed punitive damages, under the law of the accident state,
whereas the other case accepted Ford’s 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. at 410.
505. Id. See also id. (“New Jersey’s interest, balanced against Missouri’s, does not overcome Missouri’s
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. Int’l 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 defendant’s 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 that state.
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 wrongful—in this case, placing a defec-
tive 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. Montana’s interests in protecting its domiciliaries from
harm were fully satisfied by applying Montana’s compensatory damages law, which the court
did . Under the facts of this case, any additional interest Montana might have had in deter-
ring 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 “antiter-
rorist” 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-Cont’l Hotels Corp., 2003
WL 1907901 (S.D.N.Y. Apr. 16, 2003).
507. 435 F. Supp. 2d 701 (W.D. Tenn. 2006).
508. 995 P.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, 995 P.2d at 1012.
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.
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 methodolo-
gies, including the Restatement (Second), interest analysis, and Leflar’s choice-influencing con-
siderations. 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
of cases.
As the above discussion indicates, American courts have awarded punitive damages in
cases involving each of the first seven patterns defined above—namely, cases in which the state
that imposes punitive damages has all three, any two, or any one of the three pertinent con-
tacts. 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 defendant’s domicile or
principal place of business; (2) the state of the defendant’s 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 (17–19), 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 state’s punitive-
damage law is subject to the proviso that the occurrence of the injury in that state must have been objec-
tively foreseeable.
Torts 269
However, although being “defensible” is an acceptable attribute of de facto practice, it is not

a sufficient attribute of a prescriptive rule—namely, a rule that seeks to guide future practices.
One who attempts to draft a prescriptive rule should aspire to a higher standard—a 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 (13–16), which are both
more numerous and better reasoned.
The Louisiana codification of 1991 has adopted such a rule,514 as has the ALI’s 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 defendant’s 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 her-
esy”516 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 dis-
cussed in Chapters 5–7. 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 sub-
stantive 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 735–49.
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 261–63.
518. In this table, the letters A and 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 state’s law is immaterial. The shaded cells represent the state of the
applicable law.
Table 21. Applicable Law in Tort Conflicts

# Defendant’s domicile Conduct Injury Plaintiff ’s domicile
1 A b b A
Common-domicile intrastate torts
2 a B B a
3 a a a B
4 a B B B
Split-domicile intrastate torts
5 A b b b
6 A A A b
7 --- a B ---
Cross-border torts
8 --- A b ---
As Table 21 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 differ-
ent 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 Table 21) or the victim (cases 4–5) (the intrastate split-domicile cases described
above), regardless of:
(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 7–8), 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, espe-
cially from the perspective of foreign systems, which did not subscribe to the
first Restatement’s 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 conflicts—namely, common-domicile cases
Torts 271
(cases 1–2 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
Table 21).
In Babcock v. Jackson,519 the case that launched the American choice-of-law revolution, the
New York 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 loci rule.
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 domicili-
aries of that territory; (2) whether a law operates only within the enacting state’s territory, or
beyond it as well; and (3) whether the application of a state’s 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 state’s 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 factor—the 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 docu-
mented 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 124–26.

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, et seq.
the lex loci rule is also subject to exceptions, in all but 8 of the 73 codifications. One of these
exceptions—the common-domicile exception—is 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 antitheti-
cal 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 rule—the 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 out-
comes. In the rest of the world, the response was a careful, deliberate process of carving excep-
tions 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 com-
plex 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 cen-
tury. 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
don’t.”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 par-
ticularly 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 lion’s 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 grew—from 2,393 in 1975 to 32,856 in 1997—and then they began to slow down—from
26,886 in 1998, to 18,781 in 1999, and 14,428 in 2000. See id. at 148–49. 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 infra 338.
273
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 court’s discussion of it was cursory or inconsequential; (4) forum non conveni-
ens cases; and (5) class action cases.4
B. THE PERTINENT CONTACTS

1. The List
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 contacts are:
(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 265–364. 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. Int’l & 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: A Comparative Comment
on Statutory Solutions, 38 Am. J. Comp. L. 475 (1990); P.J. Kozyris, Conflicts Theory for Dummies: Après le
Déluge, 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. Int’l 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, Int’l Acad. Comp. L. 367 (2006); C. Robertson, Products
Liability Litigation since the Passage of NAFTA and the Unintended Consequences, 35 Hous. J. Int’l L. 179
(2013); M.B. Rockwell, Choice of Law in International Products Liability: “Internationalizing” the Choice, 16
Suffolk Transnat’l 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. Transn’l
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. Int’l 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. Int’l 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 note 1.
Products Liability 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 trans-
portation). 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 gesta-
tion. As a result of that exposure, plaintiffs gradually developed various abnormalities in their repro-
ductive 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 Millar–Mintz 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 New York, California, and then in Illinois,
where she was first apprised of her infertility and its causal relation to her mother’s use of DES); Wyeth
v. Rowatt, 244 P.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 defendant’s 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).
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 oth-
ers 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., 225 P.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 Oklahoma’s pro-defendant law); Pounders v. Enserch E & C, Inc.,
306 P.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
Mexico’s pro-defendant law); Rice v. Dow Chem. Co., 875 P.2d 1213 (Wash. 1994) (exposure to a herbi-
cide, while the victim was domiciled in Oregon, and diagnosis with resulting disease many years later,
while the victim was domiciled in Washington; applying Oregon’s pro-defendant law).
9. See, e.g., Ross v. Johns-Manville Corp., 766 F.2d 823, 827–28 (3d Cir. 1985); Renfroe v. Eli Lilly & Co.,
686 F.2d 642, 645–47 (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, 115–17 (D.C. Cir. 1982); Millar-Mintz v. Abbott Labs., 645 N.E.2d 278, 282 (Ill.
App. 1994); Rice v. Dow Chem. Co., 875 P.2d 1213 (Wash. 1994).
10. See, e.g., Wyeth v. Rowatt, 244 P.3d 765 (Nev. 2010); Celotex Corp. v. Meehan, 523 So. 2d 141 (Fla.
1988); Clayton v. Eli Lilly & Co., 421 F. Supp. 2d 77, 79–80 (D.D.C.2006); Smith v. Walter C. Best, Inc.,
756 F. Supp. 878, 880–81 (W.D. Pa. 1990); Harding v. Proko Indus., Inc., 765 F. Supp. 1053, 1056–57 (D.
Kan. 1991); In re New York 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 New York, 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 Ford’s 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: A European 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. Nat’l 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
Fourth, the above-contacts are not necessarily of equal weight or pertinence. For example,
the place of the product’s 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
today’s world of multistate corporate mobility, the manufacturer’s principal place of business is
justifiably given less weight,14 and in some cases—though 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 air-
planes 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 some-
one other than the victim, and are usually not subject to the victim’s 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 is not.
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 defendant’s principal place of business and the place of the manu-
facture are defendant-affiliating contacts. The remaining contact, the place of the product’s
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 dur-
ing 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), reh’g and reh’g
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 New York was General Electric’s principal
place of business, only because the company’s 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 New York, its headquarters in
Connecticut, its engine manufacturing division in Ohio, and its engine design division in Massachusetts).
Plaintiff-
Affiliating Defendant-
contacts Affiliating contacts
Victim’s domicile Injury Acquisition Manufacture Defendant’s PPB
Figure 3. The Pertinent Contacts in Product Liability Conflicts.
C. THE CONTENT OF THE CONTACT-STATES’ LAWS

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 con-
tent of the laws of each involved state. Product liability laws may be categorized in many dif-
ferent 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-plaintiff laws.”
The most common examples of pro-defendant laws are statutes of repose, which bar law-
suits 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 manufacturer’s negli-
gence; accord manufacturers special defenses, such as “state-of-the-art”; or shield a manufac-
turer’s successor from liability for the predecessor’s 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 OF PRODUCT 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 affili-
ated 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
product’s acquisition) are located in a state or states that have pro-plaintiff laws, while
the defendant-affiliating contacts (namely, the defendant’s principal place of business
and the product’s 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 (Pattern 22).
(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 (Pattern 24).15
Table 22, below, depicts these patterns, with shading denoting the state of the applicable law.
Table 22. The Four Major Patterns of Product Liability Conflicts

Plaintiff-Affiliating Contacts Defendant-Affiliating Contacts
Patterns P’s domicile Injury Acquisition Manufacture D’s PPB
21 Pro-P Pro-P Pro-P Pro-D Pro-D

Direct conflicts
22 Pro-P Pro-P Pro-P Pro-D Pro-D
23 Pro-D Pro-D Pro-D Pro-P Pro-P

Inverse conflicts
24 Pro-D Pro-D Pro-D 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 product’s manufacture and the defendant’s principal place of business) has
a pro-defendant law, while the state with the plaintiff-affiliating contacts has a pro-plaintiff law.
Under Currie’s 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 necessar-
ily for the reasons Currie postulated.
For the sake of convenience, this section divides these cases into two groups: (1) those that
have applied the pro–defendant law of the defendant–affiliated state, and (2) those that have
applied the pro–plaintiff 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 supra 100–03.
A. CASES APPLYING THE PRO-DEFENDANT

LAW OF A DEFENDANT-AFFILIATED STATE
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 con-
flicts 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 dam-
ages on the manufacturer.
Table 23. Cases Applying the Pro–Defendant Law of a

Defendant-Affiliated State
Pattern P’s domicile Injury Acquisition Manufacture D’s PPB
21. Direct conflict Pro-P Pro-P Pro-P Pro-D Pro-D
The court acknowledged Pennsylvania’s interests “in punishing defendants who injure its
residents and … in deterring them and others from engaging in similar conduct which poses
a risk to Pennsylvania’s 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 defendant’s conduct or the defen-
dant’s … principal place of business”21 (both of which were situated in Michigan), rather than
on the place of the victim’s injury or domicile (both of which were situated in Pennsylvania),
and it “predicted” that the Pennsylvania court would “hold that Michigan’s 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. at 470.
19. Id.
20. Id.
22. Id. at 470.
23. See Apple v. Ford Motor Co., 2004 WL 3218425 (Pa. Commw. Ct. Nov. 18, 2004), discussed infra 295.
district,24 have reached different conclusions, as have many courts in other states, whose deci-
sions are discussed in the next section.
The Kelly court was correct to state that, in punitive damages conflicts, the victim’s domicile
is not a relevant contact. But the court erred in asserting that the place of injury is also irrel-
evant,25 and in carelessly stating that either the manufacturer’s 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 another state.
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, espe-
cially, loss-distribution issues. Indeed, the only issue before the Kelly court was the defendant’s
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 defendant’s
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 manufacturer’s home-state and place of conduct, like Kelly, have applied the pro-plaintiff
law of the victim’s 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 Kelly’s 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 GM’s 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 dépeçage, 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 com-
pensatory 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 discussed infra.
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 Pennsylvania law).
27. As noted supra 269, this is the position taken by the Louisiana codification, the ALI’s Complex
Litigation Project, and several courts.
28. 975 F. Supp. 2d 485 (M.D. Pa. 2013).
29. Id at 507–08.
30. Id. at 508.
31. See Krause v. Novartis Pharms. Corp., 926 F. Supp.2d 1306 (N.D. Fla. 2013) (denying punitive dam-
ages under New Jersey law, while noting the parties’ agreement that Florida law would govern all other
New York,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” character-
ization 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 Jersey law.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. 6:08–cv–456, 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 dam-
ages under New Jersey law, while noting the parties’ agreement that New York 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. Ohio 2013).
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 conflicts law).
36. See Williams v. Novartis Pharms. Corp., 15 F. Supp. 3d 761 (S.D. Ohio 2014) (decided under D.C. con-
flicts law) (denying punitive damages under New Jersey law, while noting that “Ohio’s 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. at 768).
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 762–63 (quotation marks omitted).
39. Id. at 764 (quotation marks omitted).
40. 2009 WL 4623715 (N.J. Super. Nov. 23, 2009).
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
New York. Their choice of forum paid off, because the New York 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 THE PRO-PLAINTIFF

LAW OF A PLAINTIFF-AFFILIATED STATE
The above-cases are outnumbered by cases of the same pattern that have reached the oppo-
site result by applying the pro-plaintiff law of a state that had the plaintiff-affiliating contacts.
These cases (depicted in Table 24) 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 puni-
tive 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 dam-
ages 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 manufac-
turer 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. Ronnie’s 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); Nat’l 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 victim’s 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 airplane crash.
Table 24. Cases Applying the Pro-Plaintiff Law of a Plaintiff–Affiliated State

22a. Direct conflict Pro-P Pro-P Pro-P Pro-D Pro-D
with the pro-plaintiff law had all three plaintiff-affiliating contacts—the plaintiff ’s domicile, the
injury, and the place of the product’s acquisition.
1. Choice Based on Three 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 method-
ically disposed of all the defendant’s arguments against the application of Pennsylvania law.48
Responding to the defendant’s 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 defendant’s decision-making process in New
Jersey, but rather the defendant’s failure to provide adequate warnings to the plaintiffs’ doctors
in Pennsylvania.50 The court expressed “respect”51 for New Jersey’s interest, but noted that
New Jersey’s 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 New York and D.C. conflicts laws).
48. The defendant conceded that Pennsylvania law governed all other issues.
49. Rowland, 983 F. Supp. 2d at 625.
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. at 626.
52. Id. at 626–27.
The court concluded by reiterating Pennsylvania’s “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 defendant’s drug and suf-
fered 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 market-
ing 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 New York domi-
ciliary, purchased and used in New York a drug manufactured in Japan that caused him inju-
ries 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 tortfeasor’s and the victim’s home-states, respectively.58 Nevertheless, the court reached
the right result. In addition to New York’s 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. at 410.
56. Id. See also id. (“New Jersey’s interest, balanced against Missouri’s, does not overcome Missouri’s pre-
sumption that the law of the place of injury should apply.”). For another case involving the same manufac-
turer 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 155–56. Rule 2a pointed to Japanese law, because the defendant’s conduct occurred in
Japan, and Japan did not impose punitive damages. Rule 2b pointed to New York law, because the victim
was injured in New York and New York permitted recovery of punitive damages.
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 defendant’s 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 court’s reasoning for applying Pennsylvania law, which
allowed punitive damages, is a clear repudiation of Kelly. Noting that each state’s governmental
interests “would be impaired by the application of each other’s 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 product’s 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 [defendant’s] 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 Ford’s arguments in favor of applying Michigan law, which pro-
hibited 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 car’s
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 eco-
nomic 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 280–81.
62. See Kukoly, 2007 WL 1816476 at *3 (“[T]‌he facts regarding the ‘place of conduct’ contact are in dis-
pute. 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 deci-
sion 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 com-
merce 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.”).
damages … [for] willful, reckless, or wicked conduct … to punish reprehensible tortfeasors

and to deter similar future behavior.”67 The court rejected Ford’s argument that Rhode Island’s
interest is satisfied by awarding compensatory damages under Rhode Island law, noting that
an award of punitive damages “would further Rhode Island’s 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 author’s 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 state’s law is fair to the victim and not unfair to the defendant. A con-
sumer who is injured in her home state by a product she has purchased there is entitled to the
protection of that state’s law, regardless of where the product was manufactured or by whom.
Correspondingly, in a global market with free and predictable circulation of goods, the manu-
facturer 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 own law.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
prohibited them.
The court rejected Ford’s 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.
6:11–cv–370–Orl–28DAB, 2013 WL 1786637 (M.D. Fla. Apr. 26, 2013).
71. 169 Cal. Rptr. 3d 823 (Cal. App. 2014), as modified on denial of reh’g (Apr. 23, 2014), review denied
(July 9, 2014).
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 Ford’s argument that Michigan had an interest in regulating the
legal consequences of conduct occurring within its borders, such as the design and manufac-
ture 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 Michigan’s
policy because the conduct underlying its failure to warn occurred in Michigan [by] a corpora-
tion 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 noncrim-
inal 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. at 835.
74. Id. (quotation marks omitted).
75. Id. 835–36.
77. Id. at 834.
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 manufacturer’s 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. at 359.
79. Scott, 169 Cal. Rptr. 3d at 834.
80. Id. For another case rejecting Ford’s 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
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 manufacturer’s 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 resi-
dents and encourage corporations to relocate there … [by] shielding corporations from liabil-
ity 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 wait-
ing 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 contacts—not necessarily the
most significant contacts.”87 In this case, those contacts were the product’s 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 conflicts law).
82. Id. at 741.
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., 18 P.3d 49 (Alaska 2001) (successor-liability con-
flict resolved under the Restatement (Second); applying the pro-plaintiff law of Alaska, which was the
victim’s domicile, place of injury, and the product’s acquisition); Hoover v. Recreation Equip. Corp., 792
F. Supp. 1484 (N.D. Ohio 1991) (decided under the Restatement (Second); applying Ohio law to both prod-
ucts 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 Indiana’s 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 New York’s
pro-plaintiff law to an action by a New York plaintiff injured in New York 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 Florida’s 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 Florida’s Restatement (Second) approach; noting Florida’s
strong interest in applying its law to protect its citizens from building materials, which could not withstand
that state’s 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).
the manufacturer’s principal place of business. The victim’s domicile, place of injury, and the
product’s acquisition were all in Canada, the law of which favored the victim. The court found
that Canada had an “overwhelming interest”88 and rejected the manufacturer’s 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 party”89 and was
“[f]‌or all practical purposes”90 the defendant. The court found “no evidence that Kentucky’s
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 on Two Contacts

This section describes cases that applied the pro-plaintiff law of a state that had only two—
rather than all three—plaintiff-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 court’s choice
was between the conflicting laws of states with plaintiff-affiliating contacts.
a. Plaintiff’s Domicile and Injury
Table 25. Cases Applying the Pro-Plaintiff Law of a Plaintiff-Affiliated State

Pro-D, or not Pro-D, or not Pro-D, or not

22b. Direct conflict Pro-P Pro-P
pleaded pleaded pleaded
In cases of this pattern (depicted in Table 25), 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 court’s
choice is between the pro-plaintiff law of the victim’s 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 product’s
acquisition, or (2) the state with the defendant-affiliating contacts (place of manufacture and/
or the defendant’s principal place of business).
88. Custom Products, 262 F. Supp. 2d at 775.

89. Id. at 773.
90. Id. at 774.
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. at 775.
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
Delaware’s 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 domi-
ciliary, 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 Louisiana’s pro-plaintiff law to an action
of a Louisiana plaintiff, injured in Louisiana by a product acquired in Oklahoma and manu-
factured in Minnesota by a Minnesota manufacturer. In Fisher v. Professional Compounding
Centers of America, Inc.,96 the court applied Nevada’s 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 court’s 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
victim’s home-state, or (2) the state with the defendant-affiliating contacts (place of manufac-
ture and/or the defendant’s principal place of business).

Pro-D, or not Pro-D, or not Pro-D, or not

22c. Direct conflict Pro-P Pro-P
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 Louisiana’s 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 Missouri’s pro-plaintiff compensatory damages law to asbestosis
action by Missouri woman, whose father was exposed to asbestos in California).
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 product’s acquisition, but not the plaintiff ’s domicile.99 In Roll,
the plaintiff, a New York 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 defen-
dant did not rebut this presumption. The occurrence of the injury in Nevada was not fortuitous
and Nevada’s contacts were not insignificant. The plaintiff was stationed in Nevada for some
time and, more important, the defendant’s products were used in Nevada’s 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 reorga-
nizational 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 New York while using gymnastics equipment on the campus of the university
he attended. He filed a products liability action in Pennsylvania against the Michigan manufac-
turer. The court rejected the defendant’s argument for applying Michigan law, which “unsur-
prisingly” prohibited punitive damages, and instead it applied New York law, which allowed
them, reasoning that New York had “many compelling interests.”102
98. 140 F. Supp. 2d 1073 (D. Nev. 2001). This action, which was originally filed in New York and then
transferred to Nevada, was decided under New York conflicts law.
99. For another example, see Johnson v. Ranch Steamboat Condominium Ass’n, 1999 WL 184068 (N.D.
Ill. 1999). A Kansas domiciliary was injured in Colorado by a product acquired in Colorado and manu-
factured in Illinois. Colorado law favored the plaintiff, and Illinois law favored the defendant. Following
the Restatement (Second), the court acknowledged Illinois’s interest in protecting Illinois corporations
that manufacture products in that state, but it concluded that Colorado’s interest in protecting consumers
injured in that state, by products sold there, was more compelling.
100. Roll, 104 F. Supp. 2d at 1083.
101. 2012 WL 3104428 (E.D. Pa. July 31, 2012).
102. Id. at *4.
c. Plaintiff’s Domicile and Product Acquisition

another state by a product acquired in his or her home-state. Depending on which laws the
parties invoke, the court’s choice is between the pro-plaintiff law of the victim’s 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 man-
ufacture and/or the defendant’s principal place of business).

22d. Direct Pro-D, or Pro-D, or Pro-D, or not

Pro-P Pro-P
conflict not pleaded not pleaded 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 product’s acquisition, but not the
place of injury. The court found that the victim’s 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 sig-
nificant 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 victim’s contributory negligence, and the discussion was lim-
ited to the laws of Massachusetts (pro-plaintiff) and Connecticut (pro-defendant). Following the forum’s
“functional approach,” but also relying on the Restatement (Second), the court applied Massachusetts law.
104. 2004 WL 2697284 at *3.
105. Id. For another case reaching the same result, under the same circumstances, see Hoagland v. Ford
Motor Co., No. Civ.A. 06–615–C. 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 state’s 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. Connecticut’s connection was that the car and the tires were bought there by a Connecticut
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 vindicat-
ing 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 cur-
rently 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 Ford’s 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 Mexico—and not in Oregon where Plaintiffs resided, and where the vehicle was purchased,
maintained, insured, and usually driven—would 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 proce-
dural, thus freeing the court to apply Alabama’s 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 that state.
107. Id. at 305 (internal quotations omitted).
108. Id.
109. Id. at 306.
110. 2006 WL 2950474 (D. Or. Oct 16, 2006).
111. Id. at **1–2. 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 New York’s pro-plaintiff law to a case arising from a Québec traffic acci-
dent caused by a car tire manufactured in Georgia and installed on a car in New York).
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 defen-
dant’s principal place of business.
114. 478 S.E.2d 123 (Ga. 1996).
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 on a 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 court’s 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 of Injury

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 Pennsylvania’s 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 manu-
factured 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 victim’s status as a nonresident, nor the fact that he shared
a Michigan affiliation with the defendant, detracted from Pennsylvania’s 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. A dissenting judge in the court of appeals offered affirmative and more realistic reasons for apply-
ing 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, Georgia’s “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 Pennsylvania’s 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).
Similarly, in Martin v. Goodyear Tire & Rubber Co.,119 a Washington court applied
Washington’s pro-plaintiff law in a case in which Washington’s only contact was the occur-
rence 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. Oregon’s, but not Washington’s, 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 “Washington’s interest in protecting persons from
injuries from defective products within its borders outweighs Oregon’s interest in protecting
a [non-Oregon] manufacturer whose product arrives in Oregon through the stream of com-
merce 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 dam-
ages. 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 country’s need to stimulate commerce by limiting the plaintiff ’s recovery.”123
The court implicitly concluded that Mexico’s interests were weak as compared to Texas’s inter-
ests, 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. 61 P.3d 1196 (Wash. App. 2003), review denied, 149 Wash. 2d 1033 (Sept. 5, 2003).
120. 61 P.3d at 1201.
121. 51 S.W.3d 643 (Tex. App. 2001).
122. 877 F. Supp. 8 (D.D.C. 1995).
123. Id. at 670.
124. Id. at 669–70.
125. Id. at 670.
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 dam-
ages 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 punishing—through its unlimited
compensatory and punitive damages—defendants who engage in reprehensible conduct in the
District by selling unsafe products there and misrepresenting their safety features.
c. Plaintiff’s Domicile

A handful of cases applied the pro-recovery law of the state of the victim’s 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.
A closer 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
defendant’s 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 court’s choices were confined to the laws of the victim’s 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 Tennessee’s con-
flicts law), the victim’s domicile was not in the forum state. MacDonald was a wrongful death action, aris-
ing 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 Kansas’s
ceiling on damages reflected an interest in protecting defendants from excessive jury verdicts, but it con-
cluded that this interest was not sufficiently compelling and that “applying the Kansas statute would frus-
trate North Dakota’s 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 pur-
chased 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 Texas’s pro-plaintiff strict-liability law.
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,
the one hand, and, on the other hand, a state that was the place of injury,132 or the place of the
product’s 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 accident’s 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 Illinois’s pro-plaintiff law would govern loss-
distribution and that Kentucky law should govern issues of conduct-regulation—specifically 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 Connecticut’s
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 Pennsylvania’s 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 Texas’s 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 New York 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 New York and killing its Florida passengers).
133. See, e.g., MacDonald v. Gen. Motors Corp., 110 F.3d 337 (6th Cir. 1997), discussed supra note 128.
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 vaca-
tion 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 Minnesota’s 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. 995 P.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 Island’s 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 defen-
dant sold its products in all fifty states, the court observed that “Colorado’s damages law plays, at best, an
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 manufac-
turer’s 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 Kansas’s products liability
law was “to regulate the sale of products in that state and to prevent injuries incurred by that state’s
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 manu-
facturer (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
Kansas’s 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 this case.
Finally, regarding punitive damages, the court focused more on the fact that Kansas’s law
allowed such damages, rather than on the fact that it limited their amount. The court con-
cluded that Kansas did not have an interest in deterring the manufacturer, because its con-
duct 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 Kansas’s 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 Michigan’s 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 [defendant’s] insurance rates” and that defendant had not “ceased doing busi-
ness 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 Island law.
137. Phillips, 995 P.2d at 1009.
138. Id. at 1009–10. The court disposed in a similar manner of defendant’s 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 Kansas’s 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. at 1010.
139. Id.
140. Id. at 1013.
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
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 industry to
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 defen-
dant’s 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 Montana’s interests predominated in all respects. After
noting that Montana adopted a strict liability standard, “in order to afford maximum pro-
tection for consumers against dangerous defects in manufactured products with the focus on
the condition of the product, and not on the manufacturer’s 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 Montana’s 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 manufactur-
ers to warn Montana residents about defects in their products as quickly and as thoroughly as
possible.”147 The court reasoned that the application of Montana’s punitive-damages law would
serve the same policy of deterrence, because “punitive damages serve to punish and deter con-
duct deemed wrongful—in 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 315–16; applying North Carolina’s pro-manufacturer law, rather than Michigan’s 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 Michigan’s pro-plaintiff law, rather
than Florida’s 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, 995 P.2d at 1011–12.
143. Id. at 1012.
144. Id.
145. Id. (internal quotation marks and emphasis omitted).
146. Id.
147. Id.
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 Kansas’s law. On the other hand, the application of Montana law to lia-
bility 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 victim’s home-state—instead, they applied the pro-defendant law of
another state. However, in contrast to Phillips, that other state had two contacts—the place of
injury and the place of the product’s 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 defendant’s principal place of business) has a law that
favors recovery against that defendant, while a state with victim-affiliating contacts (victim’s
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 Currie’s assump-
tion that a state with a law that disfavors the local litigant necessarily has no interest in apply-
ing 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. Bliss–Salem, Inc., 85 F.3d 1069 (3d Cir. 1996); Cianfrani v. Kalmar–AC 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. Duo–Fast, Inc., 1995 WL 422681 (E.D. Pa. 1995). These cases are
discussed infra at notes 319–320.
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., 779 P.2d 1104 (Or. App. 1989) (discussed infra at 306).
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 assump-
tion that the pro-defendant law of the victim’s state was not confined to local defendants, but
rather was intended to encompass foreign defendants as well.153
A. CASES APPLYING THE PRO-PLAINTIFF

LAW OF A DEFENDANT-AFFILIATED STATE
Among the cases that have applied the pro-recovery law of a defendant-affiliated state (depicted
in Table 28), 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 manu-
factured 13 years earlier in New Jersey, by a New Jersey-based corporation. Georgia’s 10-year
statute of repose barred the action, which was timely under New Jersey’s 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 Georgia’s general policy “of fair compensation for injured domicili-
aries[.]‌”157 The Georgia statute subordinated that policy to the policy of protecting manufac-
turers, 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
Table 28. Cases Applying the Pro-Plaintiff Law of a Defendant-Affiliated State

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 at 536).
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 at 309–10).
153. See, e.g., Hall v. Gen. Motors Corp., 582 N.W.2d 866 (Mich. App. 1998) (discussed infra at 315–16).
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 114–15.
157. Id. at 115.
158. See also id. (concluding that the non-application of Georgia law “[would] not undermine Georgia’s
interest in compensating its injured residents because that interest is not actually implicated or
In contrast, said the court, New Jersey had a “cognizable and substantial interest in deter-
rence 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 discov-
ery 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 prod-
ucts within the state.”163 The court rejected the lower court’s conclusion that the possibility of
unduly discouraging manufacturing in New Jersey outweighed this interest in deterrence.164
Thus, by reading the forum’s interests in a non-protectionist way, the court concluded that what
might have been a no-interest case under Currie’s analysis was in fact a false conflict, in which
only the forum was an interested state.
If Kelly165 is noteworthy for favoring a foreign manufacturer at the expense of a local vic-
tim, 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 forum’s own policy of deterring the manufacture of substandard products within its terri-
tory. 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. at 113.
160. Id. at 110.
161. Id. at 111.
162. Id.
163. Id. at 111–12.
164. See id. at 112. The court also dismissed the forum-shopping argument, because, as shown by the
defendant’s contacts with the forum state, the plaintiff had legitimate reasons to sue there.
165. Kelly v. Ford Motor Co., 933 F. Supp. 465 (E.D. Pa. 1996) (discussed supra at 280–81).
166. See, e.g., P.J. Kozyris, Values and Methods in Choice of Law for Product Liability: A Comparative
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 pro-
duction 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 fair-
ness 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
California’s interest in deterring California manufacturers from manufacturing defective products within
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, reason-
ing that Texas had a “substantial interest” in applying its pro-plaintiff law, “as an incen-
tive 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 injury—instead, it applied Texas’s strict product-liability law, reason-
ing 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 unex-
pected 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 Pennsylvania’s interests, because “Pennsylvania’s 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, 260–61 (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., Lewis–DeBoer v. Mooney Aircraft Corp.,
728 F. Supp. 642 (D. Colo. 1990) (concluding that Texas, as the place of the defendant’s 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 California’s pro-plaintiff strict-liability rule, in order to effectuate California’s
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 conflicts law).
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 manu-
facturers 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 manufac-
turer in Texas).
174. 1989 WL 23775 (E.D. Pa. 1989).
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 Pennsylvania’s
strict-liability law, to a case involving a product that was manufactured in Pennsylvania
and caused injury in British Columbia, would “further Pennsylvania’s interest in deter-
ring the manufacture of defective products … but would not impair British Columbia’s
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 com-
mit 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 air-
plane that crashed in Alabama. The defendant was a Pennsylvania corporation that manufactured the
plane’s 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 205–06), 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 23775 at *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 at 188.
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 product’s qualities) that caused injuries to a Washington domiciliary in the
latter state.
182. 210 P.3d 337 (Wash. Ct. App. 2009).
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 stat-
ute 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 Florida’s 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 con-
cluded 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 Oregon’s 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 victim’s 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 at 88–89.
190. 115 P.3d 1017 (Wash. App. 2005), review denied, 132 P.3d 1094 (Wash. 2006).
191. 779 P.2d 1104 (Or. App. 1989), review denied, 784 P.2d 1101 (Or. 1989).
192. Id. at 1106. For other cases reaching the same result, see Marchesani v. Pellerin–Milnor Corp., 269
F.3d 481 (5th Cir. 2001) (decided under Louisiana conflicts law; applying Louisiana’s statute of limitation
and allowing a products liability action that was barred by Tennessee’s 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 Jersey’s statute of limitation, rather than Alabama’s statute of repose; allowing
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 puni-
tive damages,194 compensatory damages,195 and successor liability.196 For example, in Jones ex
rel. Jones v. Winnebago Industries, Inc.,197 the court applied Iowa’s 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 Iowa’s 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 manufacturer’s 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 California’s
pro-plaintiff strict liability rule, in order to effectuate California’s 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 Texas’s 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., Lewis–DeBoer 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, kill-
ing 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 defendant’s 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 Jersey’s pro-plaintiff
strict liability and punitive damages law, rather than Alabama’s 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 New York plaintiff, whose plane crashed in New York, against a
Kansas defendant, who manufactured the plane in Kansas; applying Kansas’s pro-plaintiff law, but hold-
ing for defendant on the merits); Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) (applying Texas’s
pro-plaintiff compensatory damages law to an action filed against a Texas-based corporation that manu-
factured 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 Pennsylvania’s
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
California’s 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 corporate law)).
197. 460 F. Supp. 2d 953 (N.D. Iowa 2006).
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 defendant’s 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 Minnesota’s 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 Michigan’s 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 inter-
est in applying its law, because the plaintiff “would receive more rights under Minnesota law
than under Michigan law.”201 Thus, the court concluded, “Minnesota’s interests provide a sound
reason for displacing Michigan law in this case.”202
B. CASES APPLYING THE PRO-DEFENDANT

LAW OF A PLAINTIFF-AFFILIATED STATE
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 contacts—the plaintiff ’s domicile, the place of injury, and the place of
the product’s acquisition.
Table 29. Cases Applying the Pro-Defendant Law of a Plaintiff-Affiliated State

24a. Inverse conflict Pro-D Pro-D Pro-D Pro-P Pro-P
198. 818 F. Supp. 204 (W.D. Mich. 1993).

199. Id. at 207.
200. Id.
201. Id.
202. Id.
1. Choice Based on Three 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 combina-
tion 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 plain-
tiffs’ 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 Carolina’s 6-year statute
of repose, rather than Indiana’s 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 Georgia’s 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 Oregon’s 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 Int’l, Inc., 257 F. Supp. 2d 872 (E.D. Tex. 2002) (applying British Columbia’s
pro-defendant law to the action of an Australian residing in British Columbia, and arising from an
injury there); Walters v. Maren Eng’g 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 Québec’s
pro-defendant compensatory-damages law to wrongful death actions arising from the crash of a small
airplane in Québec, involving only Québec victims and flights); Campofiore v. Wyeth, 2004 WL 3105962
(Conn. Super. Dec. 7, 2004) (applying Connecticut’s 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) (apply-
ing New Hampshire’s 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 pur-
chased in that state.)
205. For a case decided under Indiana’s significant contacts approach, see Alli v. Eli Lilly & Co., 854
N.E.2d 372 (Ind. App. 2006) (applying Michigan’s pro-manufacturer law to a products liability action filed
by a Michigan plaintiff, who used a prescription drug that an Indiana-headquartered defendant manufac-
tured 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 victim’s 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-codification law).
206. 23 F.3d 1354 (8th Cir. 1994), cert. denied, 513 U.S. 964 (1994) (decided under Missouri conflicts law).
the law of British Columbia. The plaintiff, a British Columbia domiciliary, was injured in that
province by a miter saw he purchased there. A Taiwanese corporation manufactured that par-
ticular 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 enu-
merated the Canadian contacts and, without articulating any corresponding Canadian inter-
ests, concluded that “Canada’s interests in and contacts with this case are at least as substantial
as Missouri’s.”208
Considering the starting point of the court’s 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 forum’s 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 presumption”210 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 prod-
uct’s acquisition,211 rather than the pro-plaintiff law of Illinois, which was the defendant’s prin-
cipal 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
Illinois’s 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 at 1361.
209. 879 N.E.2d 893 (Ill. 2007).
211. Michigan did not impose strict liability on manufacturers, imposed caps on non-economic dam-
ages, and prohibited punitive damages.
212. Illinois imposed strict liability on manufacturers, declared a statutory cap on non-economic dam-
ages unconstitutional, and permitted punitive damages.
213. Id. at 906.
state where the injury occurred, is the state with the most significant relationship.”214 After criti-
cizing the lower court’s 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 rem-
edies 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 apply-
ing 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 Michigan’s 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 Indiana’s statute of repose, bar-
ring 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 victim’s home state, the court mentioned that “it is the state of domicile
that most clearly feels the social and economic impact of an injured party’s 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 apply-
ing that law.
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 court’s previously hospitable stance toward foreign plain-
tiffs. The product in question was a drug that a New Jersey defendant designed and manu-
factured 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. at 907.

215. Id. at 909.
216. Id. at 911.
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. at 909.
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 regu-
late culpable conduct occurring within its borders, induce the design of safer products, and deter future
misconduct.” Id. at 559–60. Because Illinois was the defendant’s 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. at 560.
220. 892 N.E.2d 563 (Ill. Ct. App. 2008).
221. Id. at 574.
222. 917 A.2d 767 (N.J. 2007).
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 charac-
terizing the case as a true conflict, the court essentially treated it as a false conflict, by conclud-
ing 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 Jersey’s law, which favored plaintiffs was “not to
encourage tort recoveries by plaintiffs … in order to deter [New Jersey’s] 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 Jersey’s interest was “limited and outweighed by Michigan’s 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 state’s law and obtain compensation for
his injuries in this State’s courts completely undercuts Michigan’s 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 state’s 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 Jersey’s] interest in
ensuring that our corporations are deterred from producing unsafe products—which was deter-
minative in Gantes and however weighty in other contexts—is 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 Michigan’s 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 FDA’s 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, 302–03.
225. Rowe, 917 A.2d at 774.
226. Id.
227. Id. at 775.
228. Id. at 776.
229. Id. (footnote omitted).
In other cases involving drug manufacturers and the same pattern, courts in California,230
New York,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), reh’g and reh’g 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 California’s 2-year statute of limitations and Taiwan’s 10-year statute of repose, which
was applicable under California’s 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
New York court applied the same Michigan law in identical circumstances for the benefit of a New York
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
New York’s interests. Id. at 428.
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 other state.
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 Jersey’s 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 compen-
sated 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 New York, would permit the action. The court found that Michigan had “the most sig-
nificant 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.
In a similar vein, Cornett v. Johnson & Johnson,237 another New Jersey case managed to
avoid applying New Jersey’s 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 Jersey’s stat-
ute of limitation, but not under Kentucky’s 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 [defendant’s] facility
that might have contributed to the injury, … that concern was in competition with Kentucky’s
differing view of how stringently to regulate,”239 and Kentucky’s view applied to “all in-state
conduct by manufacturers, regardless of whether they are residents.”240 In the court’s view, the
application of New Jersey law would “impair[e]‌Kentucky’s 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 Leflar’s “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 at 552.
240. Id. at 553.
241. Id.
242. In Vestal v. Shiley Inc., 1997 WL 910373 (C.D. Cal. Nov. 17, 1997), the court applied North Carolina’s
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 con-
cluded that the application of California’s statute of limitation, which allowed the action, “would impair
North Carolina’s effort to protect manufacturers who sell goods within its borders.” Id. at *3. The court
noted California’s 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 Iowa’s 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 in Iowa.
Id. at 1410.
244. In Hughes v. Wal–Mart 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
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” auto-
makers. 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 plain-
tiff 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 Michigan’s lex fori approach
“most frequently favors using the forum’s (Michigan’s) law… .”251 Nevertheless, said the court,
Michigan courts “use another state’s 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 dispositive—“mainte-
nance of interstate and international order”—and 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 rea-
soned approach would not persuade us that Arkansas law should apply[.]‌” Id. at 621–22.
245. See Nesladek v. Ford Motor Co., 46 F.3d 734 (8th Cir. 1995), cert. denied, 516 U.S. 814 (1995) (apply-
ing 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 product’s 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 conflicts law).
248. 501 N.W.2d 567 (Mich. App. 1993), appeal denied, 519 N.W.2d 158 (Mich. 1994). Farrell was a prod-
uct 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 Carolina’s 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 com-
pelling” 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 defendant’s
headquarters.” Id. (footnote omitted).
249. 2014 WL 834184 (W.D. Mich. Mar. 4, 2014). In Bruce, the court applied Georgia’s 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
state’s residents. Id. at *6.
250. The car was manufactured in Ohio, but neither party urged the application of Ohio law.
251. Hall, 582 N.W.2d at 868.
252. Id. First, the court listed North Carolina’s contacts with the plaintiff, and then, without explain-
ing the relevance of those contacts to the issue at hand, it proclaimed that North Carolina “obviously
open ended products liability claims, and that it was “obviously in North Carolina’s 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 defendant’s
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 Michigan’s auto-
makers, Ford, is essentially a carbon copy of Hall. A car that Ford designed and manufactured
in Michigan caught fire, while in the owner’s driveway in Tennessee, resulting in destruction
of the car and damage to the owner’s house. The court applied Tennessee’s 10-year statute of
repose, barring the owner’s products liability action, which was timely under Michigan’s 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 reasoned that:
(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”;256 but
(2) Michigan had no interest in applying its law, because Michigan was “merely the forum
state and situs of Ford’s 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
conduct—the negligent design, manufacture, and failure to warn. As a concurring judge noted
in Hall, GM’s relationship with North Carolina was “insignificant when compared to its enor-
mous economic presence in Michigan and consequential effect on this state… . GM’s head-
quarters and a significant part of its operations are located in Michigan.”258 Similarly, the court
in Standard Fire acknowledged that “Ford’s 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 Carolina’s 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 conflicts law).
256. Standard Fire, 723 F.3d at 697.
257. Id. at 698.
258. Hall, 582 N.W.2d at 870 (Matuzak, J., concurring).
259. Standard Fire, 723 F.3d at 699. The court also acknowledged that “Michigan’s interests in this liti-
gation are understated[,]‌” but it concluded that “Michigan’s interests are not such as to ‘mandate’ that
Michigan law be applied despite Tennessee’s interest.” Id.
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 Michigan’s third automaker, the
plaintiffs did not even get to argue the merits of their case. The plaintiffs were Croatian citi-
zens, 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 advan-
tage of Michigan’s favorable laws and to avoid Croatia’s less favorable laws.”265 A concurring
260. Id. at 698; Hall, 82 N.W.2d at 869. See also Farrell, 501 N.W.2d at 572.
261. See Hall, 582 N.W.2d at 870–71 (Matuzak, J., concurring). After pointing out that, because of defen-
dant’s enormous presence in Michigan, “applying this state’s law should not defeat defendant’s expec-
tations,” the judge questioned North Carolina’s 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 manufac-
turer 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 court’s analysis of Florida’s 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 Michigan’s 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 domicili-
ary, 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 defendant’s principal place of business and the product’s 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 state’s interest
is greater,” because, under Michigan’s 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 “Defendant’s only interest in having its home state’s 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
Michigan’s choice of law analysis.” Id. at *2).
263. 719 N.W.2d 40 (Mich. 2006).
264. Id. at 46.
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.
opinion warned that, if Michigan cannot refuse to exercise jurisdiction in cases brought by for-
eign plaintiffs for foreign injuries, “Michigan will likely become the world’s 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 trans-
parency, 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 Kentucky’s 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 product’s acquisition. The
product, a car tire, was manufactured in Kansas by Goodyear, an Ohio corporation; was pur-
chased by Ford, a Michigan corporation; and was mounted on a car in Ford’s 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 Kentucky’s strong preference for the lex fori, the court concluded that neither
the forum’s contacts nor its interests warranted this preference in this case, and that Indiana’s
“overwhelming interest”268 outweighed this reference. The court reasoned that Kentucky’s stat-
ute 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 state’s 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 on Two 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 relation-
ship 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. at 793.
269. Id. at 792.
270. Id.
271. Id. at 793.
a. Plaintiff’s Domicile and Injury

In cases of this pattern (depicted in Table 30), 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 court’s
choice is between the pro-defendant law of the victim’s 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 product’s
acquisition, or (2) the state with the defendant-affiliating contacts (the place of manufacture
and/or the defendant’s principal place of business).
Table 30. Cases Applying the Pro–Defendant Law of a

Plaintiff–Affiliated State
24b. Inverse Pro-P, or not Pro-P, or not Pro-P, or not

Pro-D Pro-D
conflict pleaded pleaded 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 state’s statute of
limitation, but was barred by North Carolina’s 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 rela-
tionship than North Carolina,” and that “the fact that the mower entered the stream of com-
merce 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 presump-
tion of Restatement (Second) Section 146. The plaintiff, a Québec domiciliary, was injured in
Québec, while riding a bicycle sold and serviced by the defendant in Vermont. The plaintiff
invoked Vermont’s pro-plaintiff law, but was unable to rebut the presumption of Section 146 in
favor the place of injury, Québec. The court applied the law of Québec 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), reh’g 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 Georgia law.
274. Denman, 131 F.3d at 550.
275. Id. For cases reaching the opposite conclusion on this point, see Sanchez and Long, discussed supra
at 296–97.
276. 750 A.2d 1026 (Vt. 2000).
Land v. Yamaha Motor Corp., U.S.A.277 was decided under Indiana’s 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 Indiana’s 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 Indiana’s relationship was not insignificant, because Indiana was the place of the injury,
the domicile of the victim and the product’s 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 drug’s side effects. Her Tennessee action against the New Jersey manufacturer was barred by
Tennessee’s statute of repose, but it was not barred by Georgia’s corresponding statute. Relying
on the Restatement (Second), the court held that Tennessee had the most significant relation-
ship and its statute governed, barring the action.280 The plaintiff argued that Georgia had a more
significant relationship, because her doctors relied on the manufacturer’s 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 Tennessee’s interest was “not in compensating its resident for harm done to her,”283
said the court, but rather in protecting manufacturers—indeed, all manufacturers—in 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 victim’s domicile and place of injury, see Crouch
v. General Elec. Co., 699 F. Supp. 585 (S.D. Miss. 1988) (applying North Carolina’s statute of repose to
bar an action filed by a North Carolina plaintiff, who was injured in that state by a defective compo-
nent of a helicopter manufactured in Massachusetts); Alves v. Siegel’s 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 victim’s Massachusetts employer in Massachusetts; the seller inpleaded
the manufacturer for contribution and indemnification; applying Connecticut’s 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 Connecticut did).
279. 580 F.3d 455 (6th Cir. 2009), reh’g and reh’g en banc denied (Oct. 23, 2009) (decided under Tennessee
conflicts law).
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 resi-
dence, 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] used it.”).
281. Id. at 461.
282. Id. at 463.
283. Id. at 462.
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 Michigan’s lex fori approach, except that, once again, the court did not apply Michigan
law, which disfavored the Michigan defendant. Instead, it applied Ohio’s 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 case—the 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 employer’s 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 Michigan’s 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. A Minnesota-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 Michigan law.
288. McNeilus, 2012 WL 5233630 at *5.
289. Id. at *6.
290. Id. at *7.
291. See id. at *11 (Gleicher, P.J., dissenting) (“[T]‌he majority’s focus on the Ohio accident venue is mis-
placed as the accident location bears no relationship to the purposes of Ohio’s 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 Michigan’s road require-
ments. 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.
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. Johns–Manville Corp.,296 which was decided under Pennsylvania’s mixed
approach, the court applied New York’s pro-defendant law to the action of a Pennsylvania
resident, who was exposed to defendant’s asbestos products while employed and domiciled in
New York. New York, but not Pennsylvania, allowed defendant to assert the “state of the art”
defense. Reasoning that New York would have an interest in making this defense available to
foreign corporations doing business in New York, the court applied New York law, because
New York 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 unreason-
able 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 victim’s 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 forum’s
judicial system! Said the court: “ ‘Louisiana’s interest lies in the protection of its judicial sys-
tem, rather than domestic defendants, from what it might consider inherently speculative
awards.’ ”300 This statement was taken from earlier Louisiana decisions, which quoted even ear-
lier Louisiana decisions, none of which, however, have explained why punitive damages awards
are any more speculative than, say, awards for a deceased person’s pain and suffering, or why
the integrity of Louisiana’s judicial system has not been tarnished by the fact that, since 1984,
Louisiana’s substantive law has imposed punitive damages in other categories of cases.301
b. Plaintiff’s Domicile and Product Acquisition

another state by a product acquired in his or her home-state. Depending on which laws the
parties invoke, the court’s choice is between the pro-defendant law of the victim’s 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 defendant’s 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
Ohio law.
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 at 1038.
301. See S. Symeonides, Choice of Law in the American Courts in 1996: Tenth Annual Survey, 45 Am.
J. Comp. L. 447, 474 (1997).
Table 31. Cases Applying the Pro-Defendant Law of a

Plaintiff-Affiliated State
24c. Inverse Pro-P or not Pro-P or not Pro-P or not

Pro-D Pro-D
conflict pleaded pleaded 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 product’s 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 manu-
facturer was a Florida corporation, but the court did not mention the place of manufacturing,
apparently because of the court’s 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. Illinois’s 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 prod-
ucts.”304 Wisconsin’s 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 prod-
ucts.”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
Wisconsin’s 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 Carolina’s statute of repose and
by South Carolina’s statute of limitations. Following the Restatement (Second), the court concluded that
North Carolina had the most significant relationship, and it applied North Carolina’s statute of repose,
thus barring the action.
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 Idaho’s 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 man-
ufactured 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 relation-
ship 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 Arizona’s relationship was, in fact, more
significant. The court concluded that it was. Both the dealer and the victim were Arizona domi-
ciliaries, and their seller-buyer relationship was formed in that state, thus creating the “justi-
fied 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. 990 P.2d 1069 (Ariz. App. 1999).

309. Id. at 1078.
310. Id. In Thornton v. Sea Quest, Inc., 999 F. Supp. 1219 (N.D. Ind. 1998), the victim, an Indiana domi-
ciliary, 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 product’s 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. 134 P.3d 111 (Nev. 2006).
312. Id. at 119.
this case, the victim’s 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 pro-
tection 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 non-
forum state for claims that arose out of that state.”314 Therefore, the court concluded, “on balance,
Arizona’s interest in having its law applied to the causes of action that an Arizona resident plain-
tiff raised against an Arizona car dealer outweighs Nevada’s 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 court’s 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
victim’s home-state, or (2) the state with the defendant-affiliating contacts (the place of manu-
facture and/or the defendant’s principal place of business).
Table 32. Cases Applying the Pro-Defendant Law of a

Plaintiff-Affiliated State
Pro-P, or not Pro-P, or not Pro-P, or not

24d. Inverse conflict Pro-D Pro-D
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 product’s acquisition, but not the victim’s domi-
cile. The product in question was a hook manufactured in New York 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 New York manu-
facturer in New York. The laws of New York and Indiana differed in two respects: (1) under
New York’s “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 50 percent of the total fault involved in the accident; and (2) under New York
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. at 118
314. Id.
315. Id.
316. 887 N.Y.S.2d 405 (N.Y. App. Div. 2009).
New York’s 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 rules—specifically, 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 New York 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 New York in applying its own substantive law in
this case, particularly in light of the fact that New York 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 product’s acquisition (but not the
victim’s domicile). For some reason, however, the latter cases failed to consider the place of
317. Id. at 410.

319. For example, in Romani v. Cramer, Inc., 992 F. Supp. 74 (D. Mass. 1998), the plaintiff was domi-
ciled 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 “Connecticut’s superior interest on all other fronts.” Id. at 79.
Connecticut’s interest was superior, because “Connecticut enacted its statute [of repose] to protect manu-
facturers from liability for products whose useful lives have expired … [and to] encourage[] manufactur-
ers 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 Tennessee’s statute of repose, rather
than Mississippi’s 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 man-
ufactured 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 Connecticut’s
statute of repose, barring an action brought by a New York domiciliary, who was injured by a printing
press, while working for his employer in Connecticut).
320. For example, in LeJeune v. Bliss–Salem, Inc., 85 F.3d 1069 (3d Cir. 1996), a Pennsylvania court refused
to apply the strict-liability law of the victim’s home-state of Pennsylvania; instead, it applied the negli-
gence law of Delaware, which was the place of the accident and the place of the product’s acquisition. The
court compared Pennsylvania’s interest in “protect[ing] its citizens from defective products,” id. at 1073,
with Delaware’s interest in “encouraging economic activity in the state … and lowering costs to consum-
ers.” 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, Delaware’s contacts were “qualitatively” more
important; thus, Delaware had “the greater interest in having its law applied.” Id. Similarly, in Cianfrani
v. Kalmar–AC 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 Delaware’s
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 victim’s domicile on the other. Under these
circumstances, the choice of the former law should not come as a surprise.
3. Choice Based on a 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 airplane’s manufac-
ture also did not allow them, but Missouri, the manufacturer’s 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 ear-
lier recognized that that state was uninterested.
In Price v. Litton Systems, Inc.,325 the Fifth Circuit upheld the district court’s application
of Alabama’s 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 rec-
ognizing Pennsylvania’s 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 lia-
bility.” 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 Rico’s interest in regulating
the activity that occurs in its territorial waters … is more dominant.” Id. at 348); Schmidt v. Duo–Fast,
Inc., 1995 WL 422681 (E.D. Pa. July 11, 1995) (applying New Jersey’s 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 Georgia’s 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).
in Alabama, during a training mission from an Alabama military base. Companies based in
New York and Delaware designed the allegedly defective equipment in California and manu-
factured 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 helicopter’s 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, con-
cluded that “[s]‌ometimes an apparently arbitrary choice—like lex loci delicti—is a reasonable
way of dealing with the problem of conflict of interest between states[.]”327 The court recog-
nized 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
victim’s 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 product’s 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 begin-
ning, 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 Eng’g
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).
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 victim’s domicile at the
time of exposure and the victim’s 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 New York by the defendant, a New York company. The plaintiff ’s action
was timely under California’s statute of limitation, but it was barred under Oklahoma’s 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 stat-
ute 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 Oklahoma’s 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 inter-
est in the application of the law to comparable activities engaged in by local businesses[.]‌”337
332. 225 P.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. 583 P.2d 721 (Cal. 1978).
335. McCann, 225 P.3d at 530.
336. Id.
337. Id. The supreme court also disagreed with the court of appeals’ conclusion that Oklahoma’s interest
in applying its statute of repose was negated by the fact that the design and manufacture of the boiler
occurred in New York, 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. at 531.
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 Oklahoma’s statute of repose would more
significantly impair Oklahoma’s interests in protecting the defendant than the non-application
of California’s statute of limitation would impair California’s interests in protecting the plaintiff.
Regarding the impairment of Oklahoma’s interests, the court attributed critical significance
to the fact that the plaintiff ’s exposure to asbestos occurred in Oklahoma when he was domi-
ciled in Oklahoma. The court noted that:
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 jurisdiction’s 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 Oklahoma’s
“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 state’s law and does not amount to forum shopping.339 The court concluded that
[b]‌ecause a commercial entity protected by the Oklahoma statute of repose has no way of know-
ing 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 Oklahoma’s interest in establishing a reliable rule of
law governing a business’s 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 California’s interest.”341 This is because California’s interest
in applying its pro-plaintiff law for the benefit of a California plaintiff “in a case in which the
defendant’s allegedly tortious conduct occurred in another state is less than its interest when
the defendant’s conduct occurred in California.”342 Again analogizing to and quoting from
Offshore Rental, the court reasoned that
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 534–35.
341. Id. at 535.
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)).
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 defen-
dant in its territory, that state’s interest is predominant, and California’s legitimate interest in
providing a remedy for, or in facilitating recovery by, a current California resident properly
must be subordinated because of this state’s 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 Currie’s original conception. The McCann court
applied Oklahoma’s 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 defen-
dant’s 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 Oklahoma’s interest in establishing a reliable rule of law governing a busi-
ness’s 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 Oklahoma’s statute of repose, which was not enacted until 21 years 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 Oklahoma’s statute of repose retroac-
tively 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 domi-
ciliary) before he ever had a chance to know of it. One could argue that, if Oklahoma had an
interest in protecting the defendant’s reliance on Oklahoma law, California also had an inter-
est 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 fol-
lows 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
California’s interest in applying the rule was relatively weak. It did not mean that the court
344. Id. at 536.

345. Supra, text at note 340.
346. Ironically, during the pendency of the action, Oklahoma also enacted a statute of limitation—
specifically applicable to asbestos claims—also 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 expo-
sure 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. Leflar’s Contribution to American Conflicts Law, 31 S.C. L. Rev. 413,
421–22 (1980).
preferred the other state’s law because it was better. Similarly, in McCann, the court’s decision
to apply Oklahoma’s 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 governmen-
tal 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, 20 years 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 Mexico’s 10-year statute of repose barred the action, but Arizona’s statute of
limitation did not. The Arizona Supreme Court held that the New Mexico statute applied, bar-
ring the action.
The court sided with the view that, in cases such as this, the injury occurs at the time and
place of manifestation—in 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 sig-
nificant 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 victim’s 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
victim’s 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 20 years, 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 discount-
ing) 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, 225 P.3d at 533.

349. 306 P.3d 9 (Ariz. 2013).
350. Id. at 14.
351. Id. at 15.
352. Id.
353. Id. at 16. (citations omitted).
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 defen-
dants, 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 Washington’s 12-year statute of repose, but it
was barred by Oregon’s 8-year statute of repose.357 The court concluded that the Oregon stat-
ute 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: “Oregon’s interest … in providing repose for manufacturers doing business in Oregon and
whose products are used in Oregon”359 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 uni-
form 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. 875 P.2d 1213 (Wash. 1994).
357. Neither party offered evidence regarding the place of design, testing, or manufacture of the product,
or of the defendant’s principal place of business or state of incorporation. See id. 1218.
358. Id.
359. Id. at 1219.
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 Minnesota’s 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 Nebraska’s 10-year statute of repose, but it could have been maintained
under Minnesota’s “useful life” statute. The defendant, Ford, did business in Minnesota, and a critical
component of the car, which caused the Nebraska accident—the transmission gear-selection system—
was installed in the car in Ford’s assembly plant in Minnesota. The court held that Nebraska’s 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. A dissenting judge accused
the majority of “offer[ing] a sanction or punishment rather than an analysis as to choice of law.” Id. at 741.
362. 921 N.Y.S.2d 466 (N.Y. Sup. 2011).
to Oregon, where she was diagnosed with mesothelioma. Her estate sued the New York man-
ufacturer 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
Restatement’s infamous illustrations involving “deleterious” substances.364 The court held that
Oregon law, including its cap on damages, governed the action under the third Neumeier rule.
In Wyeth v. Rowatt,365 the plaintiffs, Nevada domiciliaries, were diagnosed with breast cancer
after using the defendant’s 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 New York 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. New York law did not
impose such a limit. Predictably, the decedent’s estate invoked the first Oregon statute, but not the second,
arguing instead that New York law should govern the amount of damages. The New York court noted the
estate’s “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. 244 P.3d 765 (Nev. 2010).
366. Id. at 776 (footnote omitted).
367. Id.
368. 615 F.3d 861 (7th Cir. 2010).
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 rhetori-
cally: “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. A previous 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 given state.
(2) Although products travel great distances, most multistate product-liability conflicts in
this period (88 percent) involved only two or three states. In a clear plurality of cases
(42 percent), the victim’s domicile, the injury, and the product’s acquisition were in the
same state. Seventy-nine percent of those cases applied that state’s law, and, in 76 per-
cent of those cases, that law favored the defendant.
(3) In 53 percent 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. at 866.

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 plain-
tiff did not fare better under Wisconsin’s 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 Carolina’s pro-defendant rule of the “learned intermediary,” without discussing the law of
the manufacturer’s principal place of business (Illinois), or the place of manufacture.
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 68 percent of the cases. In the remaining 32 percent of the cases,
the forum had a pro-defendant law, which the court applied in 80 percent of the cases.
(4) Forty-one percent of the cases applied the law of a state that had three contacts, and,
in 68 percent 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 55 percent 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 93 percent 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 victim’s domicile, place of injury, place of product’s acquisition), but in
52 percent of those cases that law favored the defendant.
(6) The cases of the 1990–2005 period did not support the widely held assumption that,
in their choice-of-law decisions, courts favor plaintiffs as a class. Plaintiffs fared bet-
ter in state courts (where 58 percent of the cases applied a pro-plaintiff law), whereas
defendants fared slightly better in federal courts (where 51 percent 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 (48 percent).
(7) Courts did not unduly favor the domiciliaries of the forum state (plaintiffs or defen-
dants). Only 41 percent of the cases applied a law that favored the local litigant,375
whereas 35 percent 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: 56 percent to 44 percent. 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 2005–2015 period,
the above percentages might change. However, it is unlikely that the changes will be signifi-
cant 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 OF STATE 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 prem-
ises: (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 Currie’s 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.
analysis is still alive and well among the courts. However, such a conclusion would be inac-
curate, because the courts do not subscribe to two essential ingredients of Currie’s analysis: his
“personal-law” principle and the primacy of the lex fori.
As noted earlier, the first principle denotes Currie’s assertion that a state always has an
interest in protecting its own domiciliaries, but is never interested in protecting similarly situ-
ated out-of-staters. As the preceding review documents, very few cases subscribe to this propo-
sition. For example, several cases: (1) applied the forum’s 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 forum’s pro-defendant law for the benefit of a non-forum defen-
dant and at the expense of a forum plaintiff.
Currie’s 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 1990–2015 period,
only 56 percent of the cases applied the law of the forum, and this percentage did not rise sig-
nificantly during the 2005–2015 period.
For this reason, it is safe to conclude that, although many cases speak the language of inter-
est analysis—or, more accurately, policy analysis—most 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 advocate’s sophisticated analysis of state interests.
C. THE SIGNIFICANCE OF CONTACTS

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
that—regardless of choice-of-law methodology—the more contacts a state has with a case, the
more likely it is that the court will choose that state’s law.
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 which-
ever 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) A court’s 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) domi-
cile of the injured party; (c) place of the acquisition of the product; (d) place of manu-
facture; and (e) defendant’s principal place of business.
377. Hellenic Lines v. Rhoditis, 398 U.S. 306, 318 (1970) (Harlan J., dissenting).
378. See supra, at 218–24, 247–49.
(3) When one state has any three of the above-contacts, the court is likely to choose that
state’s law.
(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-LAW RULES
The Restatement (Second) does not provide a separate rule for products liability. Several schol-
ars have proposed rules on the subject,379 but only two states—Louisiana and Oregon—have
enacted such rules. The Louisiana rule provides that—subject to a foreseeability/commercial
unavailability exception, as well as a general escape for exceptional cases—the 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 Producer’s Liability, 26 Int’l & Comp. L.Q. 703, 728–29 (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
product’s 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, 450–51, 472–74 (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 749–59. For
a critique, see J.P. Kozyris, Values and Methods in Choice of Law for Products Liability: A Comparative
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 manufac-
tured 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 986–93.
382. For documentation and discussion, see Symeonides, Codifying Choice of Law 93–98.
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 ased Rules

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 victim’s habitual residence applies, as long as that state is also: (1) the defendant’s
principal place of business, or (2) the place where the victim acquired the product. If these con-
ditions are not met, Article 4 provides that the law of the state of injury applies, as long as that
state is also: (1) the victim’s habitual residence, (2) the defendant’s 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 defendant’s 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 victim’s habitual residence, by showing that he could not reason-
ably 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 victim’s 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: A European 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 Int’l & 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. See id.
386. Among other codifications: the Belgian codification calls for the application of the law of the vic-
tim’s 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 victim’s 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 product’s 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.
which the product was acquired, and (3) the country in which the injury occurred. The appli-
cation of each country’s 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 that fact.
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 demonstrat-
ing 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 defendant’s 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 begin with.
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 mar-
keted 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: A Commentary on Article 5 of the Rome II Regulation, 9 Y.B. Priv. Int’l 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 defendant’s “residence” (at least when the defen-
dant is the manufacturer, rather than the local importer or distributor) would seem to be the least relevant
contact in today’s 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.
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 product’s manufacture, upon showing that this
country has a manifestly closer connection than the country whose law would normally govern
under paragraph 1.391
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 con-
tacts. Table 33, below, lists these countries and the victim’s choices. In some codifications, the
victim’s choice is subject to a pro-manufacturer proviso, which negates the plaintiff ’s choice of
a particular state’s law, if the manufacturer could not have reasonably foreseen the presence of
the product (or similar products) in that state. In Table 33, an asterisk denotes the presence of
such a proviso.392
Table 33. Victim’s Choices in Product Liability Conflicts

V’s dom. or similar State of product’s D’s PPB or similar
affiliation State of Injury acquisition affiliation
Moldova X X*
Romania X X*
Italy X* X
Switzerland X* X
Quebec X X
Turkey X X
Russia X* X* X
Azerbaijan X X X
Belarus X X X
Kazakhstan X X X
Kyrgyzstan X X X
Tajikistan X X X
Ukraine X X X
Uzbekistan X X X
China X* X X
Tunisia X X X X
Taiwan X X X X
391. For an assessment of this article from an American perspective, see S. Symeonides, Rome II and
Tort Conflicts: A Missed Opportunity, 56 Am. J. Comp. L. 173, 206–09 (2008).
392. For citations and discussion, see Symeonides, Codifying Choice of Law 96–98.
ten
Contracts
I N T R O DUCT I ON
Chapter 6, above, chronicled the gradual abandonment of the lex loci contractus, the traditional rule
for contracts conflicts, during the choice-of-law revolution. Chapter 7 discussed the new approaches
adopted in the 40 jurisdictions that joined the revolution. This chapter discusses the current prac-
tice 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 expres-
sion 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 discus-
sion of how a court determines the lex causae in contracts in which the parties did not choose
the applicable law.
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 con-
tractual issues to the law of the place of the contract’s making—which it defined as the place
1. Insurance contracts are discussed in Chapter 12, infra. Choice-of-forum and arbitration clauses are
discussed in Chapter 11, 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
“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 solu-
tionis) governed only certain issues of performance.4 Thus, the Restatement’s 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 consid-
ered married women incapable of entering into such a contract. The court rejected the conti-
nental 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 con-
tractual issues to the lex loci contractus. Then, the court turned to localizing the locus contrac-
tus. 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 promisee’s act was the sale of the goods to the woman’s 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 court’s 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
in contract conf licts. Four of these states (Alabama, 11  Florida, 12  Georgia, 13  and
3. See Restatement (First) of Conflict of Laws §§ 325, 326.

4. See id. at § 358.
5. See id. at § 332.
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) §§ 323–324.
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 Massachusetts’s 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 Eng’g, 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 specifi-
cally 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. Maryland’s use of renvoi is an example
of such evasion, as was discussed earlier.20 Another example is Kansas’s 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 Restatement’s approach “for a later day” because
the traditional public policy exception—which the court employed offensively rather than
defensively—enabled the court to avoid the lex loci rule and protect “[t]‌he interests of Kansas.”21
Restatement would have produced the same outcome.) Georgia’s 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 Revolution 84.
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., 933 P.2d 867 (N.M. Ct. App. 1997), cert. denied (applying alter-
natively the Restatement (Second) and the public policy exception to the lex loci contracts). But see Shope
v. State Farm Ins. Co., 925 P.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., 164 P.3d 1028 (Okla. 2006), reh’g denied (July 3, 2007).
18. See Sangamo Weston, Inc. v. Nat’l Sur. Corp., 414 S.E.2d 127 (S.C. 1992) (acknowledging North
Carolina’s 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 147–48); 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., 1 P.3d 1253 (Wyo. 2000) renounced the view that
Cherry Creek had adopted the Restatement (Second).
20. See supra 75–76. 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 Maryland’s ‘significant con-
tacts” with the case].” Id. at 609; Nat’l 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. Int’l Playtex, Inc., 777 P.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
II. STATUTORY RULES
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., 938 P.2d 1281 (Kan. 1997) (accord); Safeco Ins. Co. v. Allen, 941 P.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. at 1372).
22. See infra 678–93.
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 Story’s and Kent’s 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., 81 P.3d 618 (Okla. 2003), cert. denied, 542 U.S. 937 (2004); Bernal v. Charter
Cnty. Mut. Ins. Co., 209 P.3d 309 (Okla. 2009); Cuesta v. Ford Motor Co., 209 P.3d 278 (Okla. 2009), cert.
denied, 558 U.S. 877 (2009). For California and Montana, see text infra.
26. See Nedlloyd Lines B.V. v. Superior Court, 834 P.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, 432 P.2d 727 (Cal. 1967).
29. See Nedlloyd Lines B.V. v. Superior Court, 834 P.2d 1148 (Cal. 1992); Wash. Mut. Bank v. Superior
Court, 15 P.3d 1071 (Cal. 2001).
30. Frontier Oil, 63 Cal. Rptr. 3d at 835.
Contracts 347
on “[w]‌hether this differentiated approach is either wise or desirable” because this was “a ques-
tion 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 interpreta-
tion of a commercial liability insurance policy, specifically whether a policy endorsement pro-
viding coverage for sudden and accidental pollution also obligated the insurer to defend the
insured for claims arising from alleged pollution. The defendant’s 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 con-
tract 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 insured’s 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 analy-
sis 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 argu-
ing 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 10 years 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 country’s 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. at 837.
33. Id. The court also found that an interest analysis would produce the same result because, contrary to
the trial court’s conclusion, Texas law did not differ in pertinent part from California law.
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.
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 Tidyman’s 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 forum’s version of the U.C.C. applies to transac-
tions 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 appro-
priate relationship suggests that, as long as the forum state has an “appropriate” relation to
the transaction, a court may apply the forum’s 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. 68 P.3d 703 (Mon. 2003). Mitchell is discussed in Chapter 11, infra at 500–01.
37. 330 P.3d 1139 (Mont. 2014).
38. U.C.C. § 1–301(b) (2015).
39. U.C.C. § 1–301, cmt. 3 (2015).
40. Id. cmt. 2.
41. Id.
42. See P. Hay, P. Borchers & S. Symeonides, Conflict of Laws 1157.
43. See id.
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 transac-
tion 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 Restatement’s
“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. THE CISG
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 con-
tracts for the international sale of goods between private parties, excluding sales to consum-
ers, 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 365–84.
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: A Compact 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”).
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 applies to:
(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
Article 6; or
(2) contracts that contain a choice-of-law clause choosing the CISG as the governing law.
So far, there are relatively few cases involving the CISG, and even fewer holding it appli-
cable. 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 trad-
ing 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 busi-
ness in the United States, the CISG did not apply. The court then proceeded to determine
the applicable law through Iowa’s 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 dis-
place the CISG because, as preempting federal law, the CISG is part of the chosen state’s 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. Iowa 2005).

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 Int’l, 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. 1:05–CV–650, 2006 WL 42090, **3–4 (M.D. Pa. Jan. 5, 2006); Ajax Tool Works, Inc. v. Can–Eng. Mfg.
Ltd., No. 01–C5938, 2003 WL 223187, **2–3 (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 buyer’s purchase order and the seller’s
conditions of sale, and each document contained a choice-of-law clause pointing to a differ-
ent state—California 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 buyer’s 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 seller’s 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 writing”57 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 court’s decision and held that the question of the con-
tract’s 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 Convention’s 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.
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 brief-
ing 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 con-
tract conflict. Uncertainty exists because the Restatement itself is quite equivocal in designat-
ing 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 Restatement’s approach to contracts that do not contain a choice-of-law
clause.
A. Section 188
The Second Restatement’s chapter on contracts contains 20 sections for determining the gov-
erning 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 nonexclu-
sive, 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 busi-
ness 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, and usury.
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 presump-
tively applicable law is:
(1) For contracts for the transfer of interests in land—the law of the state where the land
is situated;62
(2) For contractual duties arising from a transfer of interests in land—the law of the state
where the land is situated;63
(3) For contracts to sell an interest in a chattel—the law of the state where, under the terms
of the contract, the seller is to deliver the chattel;64
(4) For life insurance contracts—the law of the state where the insured was domiciled at
the time the policy was applied for;65
(5) For contracts of fire, surety, or casualty insurance—the 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 suretyship—the law governing the principal obligation that the con-
tract of suretyship was intended to secure;67
(7) For contracts for the repayment of money lent—the law of the state where the contract
requires that repayment be made;68
61. Id. §§189–197.

62. Id. § 189. A contract 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 Chapter 12, infra.
66. See Restatement (Second) § 193. These contracts are discussed in Chapter 12, 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 1190–91.
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, 1191–92. This
provision is often displaced by state statutes that protect domiciliary consumers in small loan transac-
tions. See id.
(8) For contracts for the rendition of services—the law of the state where the contract
requires that the services, or a major portion of the services, be rendered;69 and
(9) For contracts of transportation—the 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. Particular Issues
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) formal-
ities; (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 law—Section 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 Sections187–188.”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 appli-
cation of the latter test, three sections contain pointers suggesting the “usual” and permissible
substantive result. They provide that:
(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 accept-
able” (Section 199(2));73 and
(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 1192–95. 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 agent’s
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 §§187–188.” For conflicts cases
involving agency contracts, see Hay, Borchers & Symeonides, Conflict of Laws 1199–206.
70. See Restatement (Second) § 197. For cases applying Section 197, see Hay, Borchers & Symeonides, Conflict
of Laws 1195–99. 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) § 197 cmt. a.
71. Restatement (Second) §§189–192, 194–197. Section 193 (on casualty insurance) does not refer to
choice-of-law by the parties.
72. Id. §§198–202, 204–205, 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 §§187–188.” 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 pro-
vides 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 198–207, 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 189–197, 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 account”76 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 dis-
tinct 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 indistinguish-
able from the significant-contacts method.
E. Samples from the Cases

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 FedEx’s 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, FedEx’s 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 120–23.
78. 502 F.3d 78 (2d Cir. 2007).
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
“Brazil’s 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 pur-
poses 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 com-
pany “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 state’s 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 carrier’s
gross negligence). The Eli Lilly court did not see the difference between invalidating the whole con-
tract 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 Brazilian law.
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. at 82.
80. Id. at 81.
81. Id. at 82.
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.3d at 82.
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 A more 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 valida-
tion.” 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 accompa-
nying 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 state’s laws would render a contract valid, while
another’s would not, bolsters the ‘significance’ of the first state’s 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 rebut-
table 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 pri-
marily 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 attorney’s 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. at 83.
89. Restatement (Second) § 188, cmt. b.
90. Id. § 197, cmt. c (emphasis added).
91. Eli Lilly, 502 F.3d at 83 n.3.
92. 461 F.3d 1224 (10th Cir. 2006) (decided under Colorado conflicts law).
he rendered most of his services in California.94 The court noted that Colorado’s 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 agree-
ments 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, California’s 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 state’s unique contingent fee agree-
ment 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 determin-
ing whether the contingent fee agreement was enforceable under California law, as the lawyer
contended.98
VI. OTHER MODERN APPROACHES

As noted in Chapter 7, four states (Arkansas, Indiana, Nevada and North Carolina) and Puerto
Rico follow a significant contacts approach, two states (Minnesota and Wisconsin) follow
Leflar’s better-law approach, and eight states and the District of Columbia follow a combina-
tion 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 lawyer’s
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 $1.5 million in quantum meruit instead of the $28 million he would be entitled to under the con-
tingent fee agreement. The Tenth Circuit reversed, holding that California law should govern the agreement.
95. Hoiles, 461 F.3d at 1232.
96. Id.
97. Id. at 1231.
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. App’x. 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 analy-
sis 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 Leflar’s 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 $1.5 million,

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 negoti-
ated 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 casi-
nos 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 district court.
The Seventh Circuit noted a federal court split on whether a bankruptcy court should fol-
low 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 Wisconsin’s
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 Leflar’s
five choice-influencing considerations. The court concluded that the first step resolved the con-
flict in favor of Nevada, and thus there was no need to resort to Leflar’s considerations.101
The court then addressed the debtor’s argument that the application of Nevada law was con-
trary to Wisconsin’s strong public policy against enforcing gambling debts. The court rejected
the argument—perhaps correctly—but, 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 con-
ception 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 1173–75. Louisiana and Oregon have their own comprehensive codifications.
See infra 678–93.
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 agree-
ments … were executed and consummated in Nevada, and they were to be performed in Nevada … .
The debt was payable … in Nevada. In contrast, Wisconsin’s 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.”).
102. See supra 78–82.
103. See infra 372–79. The Restatement (Second) recognizes the difference—at least as one of degree—
between the roles of the traditional ordre public exception, on the one hand, and the public policy excep-
tion 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 § 187 cmt. g.
state. The Jafari court appeared to be familiar only with the latter role of public policy when it
rejected the debtor’s argument, reasoning that there was no basis for interposing Wisconsin’s
public policy because Wisconsin law would not have been applicable (lex causae).104 The court
thus overlooked the first role of public policy described above.
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 Cardozo’s classic test, it should be employed only
in exceptional cases in which the applicable foreign law is “shocking” to the forum’s sense of
justice and fairness.105 Nonetheless, there is a difference between finding the exception inap-
plicable 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 California’s “strong, broad, and long-standing policy against judi-
cial 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 California’s 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 forum’s pub-
lic 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 Dakota’s 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 650–51 (“The [Wisconsin Supreme] court never suggested that if it had deter-
mined that [another state’s] law would have applied under a grouping of contacts analysis, it neverthe-
less 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 state’s 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 New York, 120 N.E. 198, 201–02 (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. at 413.
108. Id. at 414.
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, usu-
ally 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 of law.
113. Id. at 37. For basic bibliography, see id.; Hay, Borchers & Symeonides, Conflict of Laws 1084–228;
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. Int’l & 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 New York: 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. O’Hara, 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. Int’l L. 1027 (2014); S. Symeonides, Party Autonomy in
International Contracts and the Multiple Ways of Slicing the Apple, 39 Brook. J. Int’l 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, L’autonomie de la volonté dans les principes de la Haye sur le choix
de la loi applicable en matière de contrats internationaux, Rev. Critique Dr. Int’l Privé 807 (2013); D.T.
Trautman, Some Notes on the Theory of Choice of Law Clauses, 35 Mercer L. Rev. 535 (1984); C. Walsh,
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 multistate level.
Historically, the first confirmed statutory rule sanctioning party autonomy at the multistate
level appears in a decree issued in Hellenistic Egypt circa 120–118 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 applicable law.
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
(1500–1566) and then Ulrich Huber (1636–1694). These authors, and later Robert Pothier
(1699–1772) and Joseph Story (1779–1845), 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 solutio-
nis.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 (1817–1888) 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 Int’l L. Rev. 511 (2006).
114. Briggs, supra note 112, at 37.
115. Id.
116. Id. at 13.
117. See Juenger, Multistate Justice, 7–8, and authorities cited therein.
118. See P. Nygh, Autonomy in International Contracts 4–7 (1999); B. Ancel & H. Muir Watt, Annotations
sur la Consultation 53 de Du Moulin traduite en français, in Le monde du droit, Mélanges 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 l’autonomie de la volonté en droit international privé (1927);
J-P. Niboyet, La théorie de l’autonomie de la volonté, 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 auton-
omy, 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 succes-
sion,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, 81–82 (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. Int’l L. 19, 19 (2008) (“Party autonomy is one of the leading principles of contemporary choice of law.”).
123. E. Jayme, Identité culturelle et intégration: Le droit international privé postmoderne, 251 Recueil des
Cours 147 (1995) (characterizing party autonomy as a fundamental right).
124. A.E. von Overbeck, L’irrésistible extension de l’autonomie de la volonté en droit international privé,
in Nouveaux itinéraires en droit: Hommage à François 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 114–15, 149–51. 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. 15–17; Paraguayan Civ. Code arts. 23–24. In the mean-
time, 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.
3098–99; 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. 1231–1232; 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. 7–8, 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).
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
B. The Two Restatements

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 gov-
erned 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 Restatement’s 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. Int’l 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. Int’l L. 45 (2013–2014); M. Pertegás & 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. Int’l 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 Laws 1086.
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 401–02 (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 389–432 (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, 68–74 (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 warned Beale:
[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 with it.143
History proved Judge Finch right and Beale terribly wrong. Even before the American
choice-of-law revolution, which demolished Beale’s Restatement, most courts chose to ignore
his proscription of party autonomy.144
2. The Second Restatement’s Endorsement

Recognizing this reality, the Restatement (Second) formally sanctioned party autonomy, codi-
fying 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 mul-
tistate contracts.145
As noted in Chapter 7, 23 U.S. states follow the Restatement (Second) in contract con-
flicts.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 (1927–1928).
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, at 70–74.
143. Beale, supra note 140 at 466.
144. See Hay, Borchers & Symeonides, Conflict of Laws 1086–87.
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 151–52.
147. See supra 152.
148. See infra 366–67.
Because of its importance, Section 187 is reproduced in full, and discussed below:
(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 that issue.
(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, unless either
(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 deter-
mination 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 Commercial Code

From its inception in 1952, the Uniform Commercial Code ((U.C.C.) contained Section 1-105
which delineated the Code’s territorial applicability and allowed choice-of-law clauses for con-
tracts 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 the U.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 auton-
omy 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 Section 1-105.
Subsection (a) of U.C.C. Section 1–301 provides that “when a transaction bears a rea-
sonable 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. § 1–301(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 1–301 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 1–301
does not displace the doctrine of incorporation.152 Moreover, another provision of the U.C.C.,
Section 1–302, expressly recognizes the parties’ freedom to vary by agreement any U.C.C. pro-
vision 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 pro-
vides 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 con-
flicts law. The current text of Section 1-301 limits this reference to the substantive law of the
designated state.
Section 1–301 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 interna-
tional 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 limita-
tion 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. §1–301, 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. §1–302(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).
II. THE GENERAL SCOPE OF PARTY

AUTONOMY: A FIRST LOOK
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 con-
tacts, 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 effective—for “policing” party autonomy. To be sure, the very use
of the word “policing” suggests that party autonomy is not unfettered. Limitations are neces-
sary, 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 pre-
sumptively 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 frame-
works 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 auton-
omy, beginning with the way in which they delineate its permissible scope. For example, many
systems narrow the scope of party autonomy by:
(1) Excluding from it certain contracts, such as contracts conveying real rights in immov-
able 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;164 or
(4) Otherwise limiting what “law” the parties can choose, that is:
(a) Substantive, as opposed to procedural law,
(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 jurisdiction’s law will apply to their agreement cannot be
unlimited.”).
158. See Symeonides, Codifying Choice of Law 116–20.
159. Briggs, supra note 112, at 37.
160. Id.
161. Id. at 13.
163. See id. at 129–36.
164. See id. at 136–37.
165. See id. at 137–46.
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
permissible scope.
III. REQUIREMENTS AND LIMITATIONS

A. The Distinction between Waivable
and Non-w aivable Rules
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 agree-
ment directed to that issue,”168 such as those “relating to construction, to conditions
precedent and subsequent, to sufficiency of performance and to excuse for nonperfor-
mance, … frustration and impossibility”;169 and
(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 com-
ments 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 1 “is not a rule of choice of law.”174
166. See infra 379–409.

167. For discussion of these concepts, see Maultzsch, supra note 113.
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.
B. Basis for the Parties’ Choice:

Substantial Relationship or Reasonable Basis
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 sat-
isfied if the chosen state has a significant contact, such as when it is the place of making or per-
formance 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 A contract 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 require-
ment 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., 77 P.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 employee’s wages. Texas law did not impose
treble damages. The intermediate court found that, under Arizona law, a waiver of this right would be unen-
forceable, 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 state’s 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 1093–96.
179. See id. at 119–20. A New York statute (N.Y. Gen. Oblig. §5–1401) provides that a choice of New York
law in a contract not involving a consumer or personal services will be given effect even if New York has
no substantial contacts, as long as it involves a transaction exceeding $250,000 and does not contravene
the specific limitations of the U.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. A reasonable basis may be the parties’ familiarity with the chosen law,181 its complete-
ness 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: Public Policy

Because each state’s 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 Delaware’s only connection was that it was the place of the employer’s 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 Commc’ns & 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 spouse’s brief resi-
dence 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 record-
ing contract, the court noted that even if the chosen state of New York did not have sufficient contacts,
the parties’ choice of New York law would have been reasonable in light of the fact that New York courts
“have significant experience with music industry contracts.” Id. at 471.
183. See, e.g., Exxon Mobil Corp. v. Drennen, 452 S.W.3d 319 (Tex. 2014), reh’g denied (Feb. 27,
2015) (although New York did not have a “substantial relationship” with the contract, there was a “rea-
sonable 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 New York law assured a uniform treatment of Exxon’s 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), reh’g denied
(Nov. 5, 2010), review denied (Jan. 12, 2011) (“a multi-state franchisor has an interest in having its fran-
chise agreements governed by a uniform body of law”). In Prows v. Pinpoint Retail Systems, Inc., 868 P.2d
809 (Utah 1993), the court acknowledged that, although the chosen state of New York 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 Utah’s 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), reh’g denied (Feb. 27, 2015), discussed
infra 417–18;
that the limitations to party autonomy vary from one state to another raises two preliminary
questions:
(1) Which state’s limitations will be used as the standard for policing party autonomy
in multistate contracts, namely, which state’s 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 State’s 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 chosen law:
(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
lex fori.
Table 34, following page, depicts the various possibilities and the positions of various legal
systems on which state’s 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 col-
umn the state whose law would have been applicable in the absence of such a choice (lex cau-
sae). 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 Table 34, 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 lex fori.
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 1 and 2.
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
Table 34. Lex Limitativa

# Lex fori Chosen Law Lex causae Lex fori systems Lex causae systems
1 state “a” STATE “B” STATE “B” Not upheld Upheld

2 state “a” STATE “C” STATE “B” Not upheld Upheld
3 STATE “A” STATE “A” state “b” Upheld Not upheld

4 STATE “A” STATE “C” state “b” 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 and 4; 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 forum’s 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 restric-
tive 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 49–153. 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 50 years. 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 and 11.2.
188. Unless of course the foreign law is so outrageous as to meet the high threshold of offending the
forum’s sense of justice and fairness.
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 exam-
ple, Article 21(2) of the Belgian codification provides that, in applying the ordre public excep-
tion, “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 necessar-
ily 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 illegal-
ity 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 state’s 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 Table 34,
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, 422–24 (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 lex fori.
The pertinent section of the U.C.C., Section 1-301, does not contain a public policy limi-
tation, 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 speci-
fied.”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 auton-
omy 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 tra-
ditional 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 Cardozo’s classic standard, according to which the
exception applies only when the foreign law “ ‘would violate some fundamental principle of jus-
tice, 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, 497–99, 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, Oregon’s 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 particu-
lar 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 its law.
194. Restatement (Second) § 90 (emphasis added).
195. Id. § 90 cmt. c.
196. Id. (quoting Loucks v. Standard & Oil Co. of N.Y., 120 N.E. 198, 202 (N.Y. 1918)).
as one of degree, by stating that the public policy contemplated by Section 187 “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.”197
Thus, for all practical purposes, the Restatement (Second) assigns the role of the lex limita-
tiva 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 California’s, 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 stat-
ute prohibited a party from “tak[ing] advantage of the inability of the consumer reasonably to
protect the consumer’s 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 ini-
tially 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 Kansas’s 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. § 187 cmt. g.

198. Nedlloyd Lines B.V. v. Super. Ct., 834 P.2d 1148, 1152 n.5 (Cal. 1992). For other cases illustrating
the Restatement’s 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., 26 P.3d 430 (Alaska
2001) (invalidating a Washington choice-of-law clause because Washington law, which permitted con-
tractual 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 con-
tained in the law. A fundamental 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 I Regulation 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. 5–7, 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) and 8(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. 24–25); Japan (Arts.
11–12); South Korea (Arts. 27–28); Liechtenstein (Arts. 45, 48); Quebec (Arts. 3117–3118); Russia (Art.
1212); Serbia (Arts. 141–142); Switzerland (Arts. 120–121); Turkey (Arts. 26–27); Ukraine (Art. 45). At
least a dozen of the codifications that subject the chosen law to the limits of the ordre public and manda-
tory rules of the lex fori provide in addition that the court “may” apply or “take into account” the man-
datory rules of a “third country” with which the situation has a “close connection.” See the codifications
of Argentina (draft Arts. 2599–2600); Azerbaijan (Arts. 4–5, 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.1197–1198); Tunisia (Arts. 36,
38); Turkey (Arts. 5, 6, 31); Ukraine (Arts. 12, 14); Uruguay (Arts. 5.1, 6.1–2); 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 discretionary terms.
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.
2. Which Level of Public 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 state’s law only when that state’s 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 deter-
mination 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 bargain-
ing 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
California’s 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 con-
tract[.]‌” § 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, 739–42.
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. 43 P.3d 1207 (Or. Ct. App. 2002).
Contracts 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 sub-
jective, 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 fun-
damental 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 California’s 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 generality”216 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 “agree-
ment,” however, one must first verify that it came into existence. Thus, there is always a pre-
liminary 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
required form.
There are several possible answers to the above question but, for purposes of this discus-
sion, they can be grouped into two:
(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. at 1211.

216. Id. at 1212.
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).
law that would be applicable under the forum’s 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 forum’s 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 first place.
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 oth-
erwise 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. at 68–69.
220. Briggs, supra note 112, at 395–96.
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. 1589–1590, 1592);
Mongolia (Arts. 543–544); Mozambique (Arts. 25, 28); Netherlands (Art. 11); Oregon (Art. 15.330); Peru
(Art. 2070); Poland (Arts. 11–13); Portugal (Arts. 25, 28); Puerto Rico (Art. 33); Qatar (Art. 11); Quebec
(Arts. 3083, 3085–3087); 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. 761–763, 765); and Yemen (Art. 25).
Rome I also 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 pro-
vides 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 §§ 187–188.”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 read-
ing. They provide that “the question of whether the parties had legal capacity to enter into the
particular contract”—in this case, the choice-of-law agreement—“is 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 agree-
ment 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 to make.
The Louisiana227 and Oregon228 codifications avoid this bootstrapping problem by exempt-
ing 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. 3540 cmt. 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 ‘bootstrap-
ping’ problem is avoided with regard to capacity”).
228. See Or. Rev. Stat. § 15.330 (2015) (subjecting capacity to an autonomous choice-of-law rule).
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 Briggs noted,
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, valid-
ity, 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 gov-
ern. 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 con-
flicts) rule for determining the formal sufficiency of the choice-of-law agreement: The agreement
229. Briggs, supra note 112, at 94–95.

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 132–34.
233. Burchett v. MasTec North America, Inc., 93 P.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, pro-
vides that the contract (Art. 11) or its modification (Art. 29) need not be in writing. Even so, oral choice-
of-law clauses remain rare.
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 logic—albeit obliquely—to 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 refer-
ence to legal doctrines that are peculiar to the law of a particular state.239 The Restatement dis-
tinguishes 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 con-
tain a choice-of-law rule exempting this issue from the scope of party autonomy and refer-
ring it to a law or laws other than the law chosen by the parties.242 Most other codifications,243
235. Rome I art. 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 particular form.
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. 28–29); Kazakhstan (Art. 1095); Kyrgyzstan
(Art. 1190); Mexico (Art. 13.IV); Mongolia (Art. 548.2–8); 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. 548.2–8); 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.
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
§§ 187–188.”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 funda-
mental 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 of Choice or Change

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 I provides that
the parties may “at any time agree to subject the contract to a law other than that which pre-
viously 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 I art. 11. However, the alternative-validation-rule of paragraphs
1–3 of Article 9 does not apply to contracts with passive consumers. The form of those contracts is gov-
erned by the law of the consumer’s 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 con-
sumer contracts by requiring, under certain conditions, the application of the mandatory rules of the pas-
sive consumer’s 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. 3540 cmt. 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 judi-
cial 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 codi-
fications 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 incorpora-
tion (i.e., without any intervening changes).252
Perhaps a similar solution is possible under American law. The Restatement (Second) dis-
tinguishes 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 1 “is 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 et al., Dicey, Morris & Collins on the Conflict of Laws 1803–05 (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 new law.
252. See id. at 1807–09.
254. Id. cmt. c.
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 Subsection 2.
C. Multiple or Partial Choice

It is accepted now that the parties may choose the law of more than one state to govern differ-
ent 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 dépeçage.
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
A partial 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
the EU.259
D. Choice of an Invalidating Law

Sometimes the chosen law invalidates either (1) the whole contract, or (2) a part of the con-
tract. 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), § 187 cmt. 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 con-
tract 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 con-
tract 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 non-
compete 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 contract”265 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 Reporter’s Note (1971).
263. Quebec codif. Art. 3112.
264. See Moyer v. Citicorp Homeowners, Inc., 799 F.2d 1445 (11th Cir.1986), reh’g 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 Reporter’s Note cites cases in which the chosen law invalidates “the contract or a pro-
vision thereof.” See id. Reporter’s Note.
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) (inval-
idating under chosen law a clause relieving assignee from responsibility for lessor’s obligations). But see
Kipin Indus. v. Van Deilen Int’l, Inc., 182 F.3d 490 (6th Cir. 1999) (disregarding the chosen law “to the
One recent example is CS–Lakeview 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 Delaware’s 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 OF THE CHOICE-OF-LAW CLAUSE

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 prop-
erty, 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 410–11.
272. See infra 411–14.
273. See supra 380–82.
Contracts 389
Exempted
Exempted
contractual
contracts
issues
The scope of
party autonomy
Non
Non-State contractual
norms issues
Conflicts law Procedural law
Figure 4. 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 state’s procedural law (despite disagreements in drawing the line between
substance and procedure) or the choice of nonstate norms. Finally, all systems agree that, ordi-
narily, a choice-of-law clause does not encompass the chosen state’s conflicts law. Figure 4,
above, attempts to depict these variations, discussed below.
B. Exempted Contracts

or Contractual Issues
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 pol-
icy 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 ear-
lier, 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 agree-
ment, which the Restatement (Second) assigns to the lex fori. See supra 382.
275. See infra 414–32.
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. See id.
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 provid-
ing 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 “con-
strued and interpreted” according to California law. Thus, the clause used two partly overlap-
ping verbs and left out a more important verb—“governed.” 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 contract’s 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 contract’s] interpretation”282 was confined to Texas’s 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, 125 P.3d 801 (Or. Ct. App. 2005), rev. den., 136 P.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 134–35.
280. Id. at 135.
281. 180 F.3d 923 (8th Cir. 1999).
282. Id. at 930.
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 misrepre-
sentation. In Sims v. New Falls Corp., 37 So. 3d 358 (Fla. Dist. Ct. App. 2010) reh’g denied (July 7, 2010),
rev den, 2010 WL 4685414 (Fla. Nov. 16, 2010), a Florida court held that a clause in a mortgage deed pro-
viding 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
Florida’s 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, 821–22 (6th Cir.1977)
285. 182 F.3d 490 (6th Cir. 1999).
286. Boatland, 558 F.2d at 821–22, Kipin, 182 F.3d at 494.
Contracts 391
C. Noncontractual Issues: Torts

1. Introduction
A more frequently occurring question is whether a choice-of-law clause may, or does, encom-
pass 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 enrich-
ment, 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 agree-
ments. 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. A common 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 signifi-
cantly 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 bargain-
ing 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 tortfea-
sor. 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 ques-
tion 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
287. See supra 88–92.

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 par-
ties 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 Restatement’s drafting, the principle of party autonomy, which had been born in the
contracts arena, had not migrated beyond that arena.
The 1991 Louisiana codification explicitly confines pre-dispute choice-of-law agreements to
contractual issues.289 Oregon’s 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 contrac-
tual 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 codifica-
tions limit such agreements to the law of the forum,294 and the rest are silent on this ques-
tion.295 A recent 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 Reporter’s 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 993–97.
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 funda-
mental 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 the forum.
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 nego-
tiated,”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 Case Law
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. Int’l 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: A Missed Opportunity,
56 Am. J. Com. L. 173, 215–16 (2008).
303. Courts rarely address the question of which law governs this interpretation. Most courts apply gen-
eral principles of contract interpretation, without reference to any particular law, while a few court refer
to the chosen law.
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 con-
strued in accordance with, a particular state’s laws have regularly been construed in this circuit as apply-
ing 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. McDonald’s 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.
App’x. 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 pro-
viding that the “agreement shall be governed by and construed in accordance with the laws of Bermuda”
did not encompass tort claims); Computer Sales Int’l., 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 buyer’s counter-
claims 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 contract’s choice-of-law provision.”);
U.S. Fidelity & Guar. Co. v. S.B. Phillips Co., Inc., 359 F. Supp. 2d 189 (D. Conn. 2005) (clause provid-
ing 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 Jersey’s
anti-discrimination and family leave statutes); MBI Acquisition Partners, L.P. v. Chronicle Pub’g 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 par-
ties”); 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) (hold-
ing 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. McDonald’s 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 con-
tained 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 convey-
ance); 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 mis-
representation); 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 enforced”306 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… . A careful
reading of the choice-of-law provision at issue here demonstrates its restricted scope. The provi-
sion is limited on its face to ‘this agreement’ … [and thus] only governs the construction, inter-
pretation 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 construed”309 in accordance with the law of Illinois. The question
was whether this clause encompassed claims for fraudulent concealment and fraudulent mis-
representation 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., 282 P.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 New York, 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. Int’l 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 Int’l, Inc. v. Dresser Indus., Inc., 911 S.W.2d 18 (Tex. App. 1995).
305. 848 F. Supp. 569 (E.D. Pa. 1994).
306. Id. at 576.
307. Id.
308. 254 F.3d 683 (8th Cir. 2001).
309. Id. at 687.
310. Id.
circumstances surrounding the formation of the contract, there was no indication that the par-
ties 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, inter-
preted, 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 nei-
ther 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 pro-
vided 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 construc-
tion 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 Florida”321 did not encompass a guar-
antors’ 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 bank’s alleged misrepresenta-
tions 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 interpreted”324 in accordance with New York law. The
311. Id.
312. Id.
313. Id. at 688.
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. at 428.
322. Id.
323. 741 N.E.2d 862 (Mass. App. Ct. 2001).
324. Id. at 867.
Contracts 397
court held that the clause did not encompass the plaintiff ’s claim for the defendant’s 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. at 868.

326. In addition to the cases discussed in the text, see Turtur v. Rothschild Registry Int’l, Inc., 26 F.3d
304 (2d Cir. 1994) (holding that a clause providing that the contract was to be “governed by, and inter-
preted 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 defendant’s counterclaim for bad faith denial of a contract because
that claim was dependent on the contract’s 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 forum’s 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. P’ship, 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 Commc’ns, 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. Int’l 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. App’x. 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 Eng’g Co., 224 S.W.3d 412 (Tex. App. 2006); Roby v. Corp. of
Lloyd’s, 996 F.2d 1353 (2d Cir. 1993); Twohy v. First Nat’l. 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 Int’l Hotels Ltd., 579 F.3d 1279 (11th Cir. 2009); Maxcess, Inc. v. Lucent
Techs., Inc., 433 F.3d 1337 (11th Cir.2005), reh’g en banc denied, 175 Fed. App’x. 328 (11th Cir. 2006).
327. 834 P.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
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 fidu-
ciary 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… . Nedlloyd’s fiduciary
duties, if any, arise from—and can exist only because of—the 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 inter-
pretation 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 “agree-
ment” between the parties, encompasses all causes of action arising from or related to that agree-
ment, 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
employee’s action for age discrimination and wrongful discharge in violation of public pol-
icy. 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. A choice-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, 834 P.2d at 1150.
330. Id. at 1153–54.
331. Id. at 1155.
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 accor-
dance with the laws of the State of New York, without regard to conflicts of laws.” Olinick, 42 Cal. Rptr.
3d at 272.
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 respects”335 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 dam-
ages. 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 firm’s 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 contract’s choice-of-law provision regardless of the breadth of the clause,”336
which in this case was broad enough to begin with.
3. Critique
One problem with viewing the question of the scope of the choice-of-law clause solely as a ques-
tion 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 defendant’s 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 defendant’s 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, Defendant’s reading of the arbitration clause would require arbitration
of claims such as a [defendant’s] 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 at 759.

337. 181 F. Supp. 2d 504 (D.Md. 2002).
339. Id. at 511.
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.
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 safe-
guards (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 Franklin’s apothegm that “an ounce of
prevention is worth a pound of cure.”
Another problem with the courts’ approach is that it places too much weight on the word-
ing 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 refer-
ring 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. Procedural Issues
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. App’x. 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. McDonald’s Corp., 2005 WL 1027261 (M.D. Fla. Mar. 30, 2005);
Computer Sales Int’l., 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 Int’l, 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 Entm’t, 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, 834 P.2d 1148 (Cal. 1992); Twinlab Corp. v. Paulson, 724 N.Y.S.2d
496 (N.Y.A.D. 2001).
344. A case 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 state’s 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 another state.
However, as the discussion in Chapter 4 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 regard-
ing 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 Chapter 13, 28 states continue to follow this characterization even after aban-
doning 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 noncon-
tractual 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 New York did
not include that state’s statute of limitation, but a clause stating that the contract “and its enforcement”
shall be governed by New York 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 state’s 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 Nat’l 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 Commc’ns, 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 Pennsylvania’s prejudgment interest rule for torts was proce-
dural because its primary purpose was to promote settlement, Pennsylvania’s 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 New York choice-of-law clause, the issue of
prejudgment interest was governed by the law of New York law rather than Pennsylvania. See also Cashman
Equip. Corp. v. U.S. Fire Ins. Co., 368 Fed. App’x. 288, 2010 WL 746423 (3d Cir. Mar. 5, 2010).
349. See infra 528–31.
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);
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 state’s 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 gov-
erned 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 cho-
sen state’s procedural law, the court concluded that, because California abandoned the tradi-
tional 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. Eng’g & 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., 26 P.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 New York
did not include that state’s statute of limitation, but a clause stating that the contract “and its enforcement”
shall be governed by New York law would); Nez v. Forney, 783 P.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 Ohio’s statute of limitation because “New York 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), reh’g 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. O’Brien, 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 state’s 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. App’x 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), reh’g and reh’g en banc denied, 175 Fed.
App’x. 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. at 35.
Contracts 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 state’s 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 York’s statute of limitation, which barred the action.
The clause provided that “[t]‌his Agreement is governed by and construed under the laws [of
New York].”355 The court concluded that “the words ‘law’ or ‘laws’ denote a state’s entire body
of statutory law, which includes statutes of limitations.”356 The court also found, however, that
New York 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 England’s statute of limitations, which was longer than California’s stat-
ute. The court found that the application of England’s longer statute did not violate California’s
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 a time.
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 pro-
cedural 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 cer-
tainty 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 California’s 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 conflicts law).
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.
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 pertain-
ing 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
Virginia’s 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 exist-
ing 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 effect—at least in states that allow
choice-of-law clauses to encompass noncontractual issues. However, a substantive character-
ization does not answer satisfactorily the next question: which state’s law will provide the stan-
dard 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 at 305.

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. at 308.
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 pub-
lished 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 state’s 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), reh’g 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), reh’g and reh’g en banc denied, 175 Fed. App’x. 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 state’s statute of limitation did not violate the forum’s 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 A contains a choice-of-law clause choosing the substan-
tive 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 of Conflicts Law

The Restatement (Second) takes the position that, in the absence of clear evidence of contrary
intention, the contractual choice of a state’s law does not include that state’s 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 complexi-
ties of renvoi. As the New York Court of Appeals noted in a case involving a generic New York
choice-of-law clause:
It strains credulity that the parties would have chosen to leave the question of the applicable sub-
stantive 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 New York conflict-of-laws principles
in their choice-of-law provision in order to avail themselves of New York substantive law. Indeed,
in the event parties wish to employ New York’s conflict-of-law principles to determine the appli-
cable 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 state’s 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 374–76.

371. See Restatement (Second) § 187 cmt. 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 state’s ‘law,’ which means the totality of
its law including its choice-of-law rules.”). The Louisiana and Oregon codifications take the same posi-
tion, 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. 3540 cmt. 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 con-
tracts 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 Int’l, Inc., 26 F.3d 304, 309 (2d Cir. 1994) (“[t]‌his
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 state’s 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 of Nonstate Norms

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 choos-
ing 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 New York 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 California’s rules regarding Conflict
of Laws.”); Brill v. Regent Commc’ns, 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 Entm’t, 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 New York, without regard to conflicts of laws.”).
374. For documentation, see Symeonides, Codifying Choice of Law 138–40.
375. For documentation and critique, see id. at 139–40.
376. From the vast literature on nonstate norms, see, e.g., B. Benson, The Enterprise of Law: Justice with-
out 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. López Rodríguez, 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: A Model of Decentralized Law, 14
Int’l Rev. L. & Econ. 215 (1994); G. Cuniberti, Three Theories of Lex Mercatoria, 52 Col. J. Transn’l 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 Lives—and Faces—of 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. Transn’l L.
487, (1995); D. Lawrence, Private Exercise of Governmental Power, 61 Ind. L.J. 647 (1986); M. Lehmann,
Liberating the Individual from Battles between States—Justifying 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 pri-
vate 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 New York 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. Transn’l 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. Transn’l 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. Int’l L. 743 (1999); P. Stephan,
Accountability and International Lawmaking: Rules, Rents and Legitimacy, 17 Nw. J. Int’l L. & Bus. 681
(1996); S. Symeonides, Party Autonomy and Private Law-Making in Private International Law: The Lex
Mercatoria That Isn’t, in Festschrift für 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 ordi-
nary, 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/commis-
sion_on_european_contract_law. For authoritative commentary by the principal drafters, see O. Lando
& H. Beale (eds.), The Principles of European Contract Law, Parts I and II (1999); O. Lando, E. Clive, A.
Prüm & 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, at II. A.
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 legis-
lative 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 ref-
erence” 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 I Regulation 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 col-
lection of nonstate norms. Indeed, the Reporter’s Notes expressly state that the parties “may also stipulate
for the application of trade association rules or well-known commercial customs.” Id. § 187, Reporter’s
Note to Subsection (1).
385. See U.C.C. § 1–302, 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 authori-
ties such as UNCITRAL or Unidroit …, or non-legal codes such as trade codes.”).
386. Rome I, recital (13).
387. See Paraguayan Law 5393 of 2015 “Regarding 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. Int’l L. 1 (2014). See also B.A. Marshall & M. Pertegás, Party Autonomy
and Its Limits: Convergence through the New Hague Principles on Choice of Law in International
Commercial Contracts, 39 Brook. J. Int’l 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 uncer-
tainty 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 state’s 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, accord-
ing to what is just and fair, without reference to any state law. A fortiori, 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 “exter-
nal” 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 previ-
ous 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-case basis.

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 appropri-
ate,” and that the tribunal “shall not decide as amiable compositeur or ex aequo et bono unless the parties
have expressly authorized it to do so.”).
This section offers a brief description of examples of the first model, and then discusses
representative American cases.
B. Comparative Excursus:

The Civil Law Model
A perusal of choice-of-law codifications enacted in the last 50 years 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 con-
sumer.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. Fernández Arroyo (ed.), Consumer Protection in International
Private Relationships (2010); L.E. Gillies, Electronic Commerce and International Private Law: A Study of
Electronic Consumer Contracts (2008); J. Hill, Cross-Border Consumer Contracts (2008); S. Klauer, Das
europäische Kollisionsrecht der Verbraucherveträge zwischen Römer EVÜ und EG-Richtlinien (2002); C.
Lima Marques, O novo direito privado e a proteção dos vulneráveis (2012); C. Lima Marques, Contratos
no Código 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 I and Rome I Regulations, 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. Int’l
Dr. Comp. 273 (2010); D. Fernández Arroyo, Current Approaches towards Harmonization of Consumer
Private International Law in the Americas, 58 Int’l & Comp. L.Q. 411 (2009); F. Garcimartín Alférez, The
Rome I Regulation: Exceptions to the Rule on Consumer Contracts and Financial Instruments, 5 J. Priv.
Int’l L. 85 (2009); L.E. Gillies, Choice-of-Law Rules for Electronic Consumer Contracts: Replacement
of the Rome Convention by the Rome I Regulation, 3 J. Priv. Int’l L.89 (2007); L.E. Gillies, Addressing
the “Cyberspace Fallacy”: Targeting the Jurisdiction of an Electronic Consumer Contract, 16 Int’l J. L. &
Info. Tech. 242 (2008); J.J. Healy, Consumer Protection Choice of Law: European Lessons for the United
States, 19 Duke J. Comp. & Int’l 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. O’Hara, 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. Hellénique Dr. Int’l 79 (2010); G. Rühl, Consumer
Protection in Choice of Law, 44 Cornell Int’l L.J. 569 (2011); P. Schlosser, Death-Blow to the So-Called
“Supplementary Interpretation” of Contracts (“ergänzende Vertragsauslegung”) in the Case of Invalid
Terms in Consumer Contracts? 2012/6 IPRax 507 (2012); Z. Tang, Private International Law in Consumer
Contracts: A European Perspective, 6 J. Priv. Int’l L. 225 (2010); Z. Tang, Consumer Collective Redress
in European Private International Law, 7 J. Priv. Int’l L. 101 (2011); Z. Tang, Parties’ Choice of Law in
E-Consumer Contracts, 3 J. Priv. Int’l 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 consumer’s 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 exam-
ple, the Ukrainian codification subjects to Ukrainian law contracts for employment to be
performed in Ukraine, or contracts between Ukrainian employers and employees for employ-
ment 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 employee’s or the
employer’s domicile.397
advertisement in Oregon.” Or. Rev. Stat. § 15.320(4) (2015). For discussion, see S. Symeonides, Oregon’s
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. A “passive” 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. Transn’l 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. & Pol’y J. 375 (2010); U. Grušic, Jurisdiction in Employment Matters
under Brussels I: A Reassessment, 61 Int’l & Comp. L.Q. 91 (2012); U. Grušic, 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 Europäischen Kollisions-und
Verfahrensrecht, in H. Kronke & K. Thorn (eds.), Grenzen überwinden, Prinzipien bewahren: Festschrift
für Bernd von Hoffmann 218 (2012); G. Lester & E. Ryan, Choice of Law and Employee Restrictive
Covenants: An American Perspective, 31 Comp. Lab. L. & Pol’y J. 389 (2010); T. Mahnhold, Choice of
Law Provisions in Contractual Covenants Not to Compete: The German Approach, 31 Comp. Lab.
L. & Pol’y J. 331 (2010); E. Menegatti, The Choice of Law in Employment Contracts: Covenants Not to
Compete under the Italian Legislation, 31 Comp. Lab. L. & Pol’y 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. Moyé, 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. & Pol’y 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. & Pol’y J. 347 (2010).
396. See Ukrainian codif. Arts. 52–55.
397. See Uruguayan draft codif. Art. 50.6.
Some codifications exempt insurance contracts from the scope of party autonomy. For
example, Article 3119 of the Quebec codification provides that “[n]‌otwithstanding any agree-
ment 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 coun-
tries 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 docu-
mented 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 state’s 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 prop-
erty or an interest situated in Québec or subscribed in Québec by a person resident in Québec … if the
policyholder applies therefore in Québec or the insurer signs or delivers the policy in Québec” and con-
tracts of “group insurance of persons … where the participant has his residence in Québec 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. 50.7–8.
400. See Rome Convention, arts. 5–6.
401. See Albanian codif. Art. 52; Argentinean draft codif. Art. 2655; Russian codif. Art. 1212; Ukrainian
codif. Art. 45.
402. See FYROM codif. Arts. 24–25; Japanese codif. Arts. 11–12; South Korean codif. Arts. 27–28;
Liechtenstein codif. Arts. 45, 48; Puerto Rico codif. Arts. 35–36; Quebec codif. Arts. 3117–3118; Serbian
draft codif. Arts. 141–42; Turkish codif. Arts. 26–27. 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 95–96; Y. Okuda, Reform of Japan’s Private International
Law: Act on the General Rules of the Application of Laws, 8 Y.B. Priv. Int’l 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 I on Contract Conflicts from a Japanese Perspective, 10 Ybk. Priv. Int’l 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 protec-
tive of that party (here the consumer or employee) than Rome I and other codifications. But see Okuda,
A Short Look, supra, at 308–09 (stating that this rule “overly protect[s]‌” the consumer or employee and
is “unfair to the other party”).
Contracts 413
The Rome I Regulation, which succeeded the Rome Convention, reproduced the protection
for consumers and employees and extended similar (but not as effective) protection to pas-
sengers and insureds in certain “small risk” insurance contracts.403 Rome I differentiates 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 agreement—the lex cau-
sae.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 employ-
ment 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 I Regulation 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” consum-
ers and employees from the consequences of an adverse contractual choice of law. In effect,
Rome I allows 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 contract-
ing 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 cen-
tral 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(2–4).
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 Chapter 12, 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).
insurance contracts, the parties’ choices are subject to similar geographic restrictions.410 For
these contracts, as well as for all “other contracts,” Rome I imposes 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 I do not
always protect passengers or insureds. Choosing the law of the place of destination in a passen-
ger contract, or the law of the insured’s nationality in a life insurance contract, does not neces-
sarily guarantee the passenger or the insured protection. Moreover, Rome I does not provide
any protection for other presumptively weak parties, such as franchisees. Finally, the parties
that fall between the cracks of Rome I are totally out of luck because Rome I does not contem-
plate, 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 such rules.
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 American Model

1. Introduction
A comparison between the Restatement (Second) and the civil law model exemplified by Rome
I is 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 rules—a skepti-
cism reinforced by the first Restatement’s failure—and 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 Restatement’s 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 of law.
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. inter-
state contracts, and imposed different party autonomy restrictions for each category.414
Unfortunately, these ideas proved unpopular with industry leaders and, therefore, state legisla-
tures. By 2008, only the U.S. Virgin Islands had adopted the proposed revision, thus forcing the
U.C.C. Commissioners unceremoniously to withdraw it.
As result, the task of protecting consumers, employees, and other presumptively weak par-
ties 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 cove-
nants 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 983–87 (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. &
Pol’y J. 389 (2010). See also D.A. Linehana, Due Process Denied: The Forgotten Constitutional Limits on
restrictions, and other states allow them. When the state of the employment relationship
(which is usually the employee’s home-state) prohibits such covenants, most courts refuse to
enforce the covenant, even if the employment contract contains a choice of another state’s 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 con-
flict between the policies of the two involved states was as sharp as that between “red” and
“blue” states. A New York employment contract between a Florida employer and a New York
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 cov-
enant may impose on the employee. Moreover, the statute provided that courts must construe a
covenant “in favor of protecting the employer’s 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 New York of Appeals easily concluded that the Florida statute
was “truly obnoxious” and held unenforceable the choice-of-law clause and the covenants:
Considering Florida’s nearly-exclusive focus on the employer’s interests, prohibition against nar-
rowly construing restrictive covenants, and refusal to consider the harm to the employee—in
contrast with New York’s requirements that courts strictly construe restrictive covenants and bal-
ance the interests of the employer, employee and general public—defendants 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 Employment—Confidentiality, 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), reh’g and reh’g 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), reh’g 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. Cont’l 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. at 361.
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 New York
choice-of-law clause and a forfeiture provision stipulating that the employee would forfeit cer-
tain deferred executive bonus awards and stock options if he accepted employment with a
competing employer. This provision was enforceable under New York 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 Texas’s public policy.
The Texas Supreme Court reversed. First, the court found that although New York 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 incen-
tive programs and securities-related transactions, and (2) the choice of New York law assured
a uniform treatment of Exxon’s employee incentive programs in all states. “Uniformity is a
worthy goal and a logical rationale for choosing New York 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 New York 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. A distinction
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 employee’s 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 Texas’s policies had changed in the 24 years since DeSantis:
With Texas now hosting many of the world’s 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 New York.425

420. 452 S.W.3d 319 (Tex. 2014), reh’g denied (Feb. 27, 2015).
421. 793 S.W.2d 670 (Tex. 1990).
422. Drennen, 452 S.W.3d at 332.
423. Id. at 329.
424. Id.
425. Id. at 329–30 (footnote omitted).
Based on this reasoning, the court left “for another day” the question of whether the forfei-
ture 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 funda-
mental public policy: “While application of Texas and New York law may reach different results
on the enforceability of [this provision] … we cannot conclude that applying New York 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. A choice-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 met all 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 issue—the enforceability of the noncompete covenant in California. As to this issue,
“the subject matter of the contract” was the employee’s “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 perti-
nent contact, which brought into play California’s 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 Texas’s 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. at 87.
429. Id. at 88.
Contracts 419
movement of persons whom California-based employers … wish to employ …, regardless of

the person’s 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 employer’s state and the employee’s first
domicile, while Georgia was the second employer’s state and the employee’s new domicile.
A Georgia federal court refused to enforce the Ohio choice-of-law clause and noncompete cov-
enant 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 employ-
ment 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 cov-
enant was unenforceable there. Subsequently, the Ohio employer sued in Ohio seeking enforce-
ment 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. at 85.
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-à-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 California’s
“political imperialism, absorbing every state into the California legal ethos.”).
433. 205 F. Supp.2d 1374 (S.D.Ga. 2002).
434. Id. at 1379.
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).
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 employer’s state, New York. 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 New York, seeking
a preliminary injunction restraining the employee from breaching the covenant. The employee
cross-moved, asking the New York court to abstain under the Colorado River abstention doc-
trine.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 New York choice-of-law clause in the employment con-
tract. The court acknowledged that enforcement of the noncompete covenant under the cho-
sen 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 New York had in
applying its own law. The court pointed out that although the employee was domiciled and
worked in California, he reported to his employer’s principal place of business in New York,
and was directed and supervised from the employer’s office there. The court found that these
New York contacts were significant and concluded that “[j]‌ust as California has a strong inter-
est in protecting those employed in California, so too does New York 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 domicili-
ary 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 at 169.
440. Id. at 173. The court continued with a modest statement from a New York case, in which the court
spoke of
New York’s 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 trans-
actions 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 New York 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
Dep’t. 1996)).
441. 59 P.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 noncom-
pete 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. A Washington 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 selec-
tion 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 selec-
tion 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 apply-
ing 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., 59 P.3d at 237.
444. See id. (noting that these principles required “that we exercise our power to enjoin parties in a for-
eign court sparingly.”).
445. Forum selection clauses are discussed in Chapter 11, 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 Entm’t, 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. at 1104.
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 employee’s 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 argu-
ments and strike down the choice-of-law clause on that basis. McKee involved a telephone
service agreement between a New York-based telephone company and a Washington customer,
which contained a New York 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 New York law would be contrary to a funda-
mental policy of Washington. New York allowed waivers of class actions, whereas Washington
had a declared “strong … public policy in support of the use of class action claims to pur-
sue 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 Washington’s interest
in protecting large classes of its consumers was materially greater than New York’s interest in
protecting a multistate telephone company.
In many other cases decided before the U.S. Supreme Court’s 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 con-
tracts.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. 191 P.3d 845 (Wash. 2008).
453. Id. at 865
454. Id. at 852
455. Dix v. ICT Group, Inc., 160 Wash. 2d 826, 837, 161 P.3d 1016 (Wash. 2007).
456. 131 S. Ct. 1740 (2011), discussed infra 465–66.
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 Missouri’s 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.
A credit 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 tele-
phone 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 reach-
ing 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 462–68.
459. 357 S.W.3d 597 (Mo. 2012).
460. Id. at 601.
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 defendant’s 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), reh’g denied (Aug. 8, 2007), appeal denied, 226 Ill. 2d 614 (Ill.,
2008), cert. denied, 555 U.S. 814 (2008).
from its own choice-of-law clauses, arguing inter alia that the Act did not apply “extraterritori-
ally.”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 exclu-
sive 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” Virginia—that is, in either state
or federal courts in Virginia—and 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 state’s 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 appli-
cable. 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 at 1040.

466. See id. at 1042 (“The fact that Kansas law might not otherwise apply is irrelevant because the par-
ties 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 incorporat-
ing 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., 259 P.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 consumer’s 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. 255 P.3d 508 (Or. Ct. App. 2011).
Contracts 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 10 days from the due date. When the buyer missed a payment, the seller’s assignee repos-
sessed 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 bank’s attorney fees “[t]‌o the extent permitted by law.”472 The bank sued the
consumer in Oregon for overdue payments but lost under Virginia’s 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 stat-
ute 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 consumer’s 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 suf-
fered 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 the WCA).

472. Capital One, 255 P.3d at 510.
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 con-
tract between a Nevada lender and a California borrower because Nevada law contravened a fundamental
policy embodied in California’s Finance Lenders Law, and California had a materially greater interest
than Nevada in applying its law).
474. 2000 WL 1909373 (E.D. Pa. 2000).
475. Id. at * 3 (quoting Kan. Stat. Ann. § 50-627(b)(1)) (2015).
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 Kansas’s fundamental policy embod-
ied 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 court’s 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 contract-
ing 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 agree-
ments 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 injus-
tice.”481 Many statutes regulating franchises or distributorships restrict party autonomy in the
interest of protecting the presumed weak party—the franchisee or distributor. Typically, these
statutes prohibit waivers of franchisee protections, either directly or through the contractual
476. 220 P.3d 1080 (Idaho 2009).

477. Id. at 1085.
478. Id. at 1086.
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 state’s law. Most of these statutes limit their geographical scope to franchises
or distributorships operating within the enacting state, or to franchisees or distributors domi-
ciled 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 statute’s 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 state’s law in contracts involving Illinois beer distributors.
A contract 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 inter-
national 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 state’s 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: A View from the Trenches, 43
Am. J. Comp. L. 1, 61–63 (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 Int’l, 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), reh’g denied (Dec. 11, 2003), cert. denied, 541 U.S. 1010 (2004) (decided
under Illinois conflicts law).
484. The FAA is discussed in Chapter 11, infra.
485. 473 U.S. 614 (1985) (discussed at 474–75, infra).
486. 417 U.S. 506 (1974) (discussed at 461, infra).
487. Stawski Distrib. Co. v. Browary Zywiec S.A., 126 Fed. App’x. 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. See id.
488. 614 A.2d 124 (N.J. 1992).
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 franchisor’s 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 Act’s 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 franchisor’s argument that this case did not implicate New Jersey’s inter-
ests 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 franchisee’s 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. A well-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 state’s law for certain transactions, such as franchises, and other highly regu-
lated 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 statute’s prohibition of choice-of-law clauses.
In Caribbean Wholesales a contract between a Puerto Rico distributor and a foreign manu-
facturer contained New York choice-of-law and forum-selection clauses. The court held that
both clauses were unenforceable because they violated Puerto Rico’s Dealer’s Contracts Act,
which provided that “[a]‌ny stipulation that obligates a dealer to … litigate any controversy …
regarding this dealer’s contract outside of Puerto Rico, or under a foreign law … shall be …
null and void.”495 Following Puerto Rico’s “significant contacts” approach for contracts conflicts,
but also referring to “Puerto Rico’s governmental interest in regulating the contractual relations
489. Id. at 134.

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 conflicts law).
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 strik-
ing 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 Int’l, Inc., 265 F.3d 931 (9th Cir. 2001).
495. Caribbean Wholesales, 855 F. Supp. at 632–33 (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 Illinois’s 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 con-
siderations.”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 law”501 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 franchisor’s state, the courts of that state tend to be less def-
erential to the protective statutes of the franchisee’s state and more receptive to a contrac-
tual choice of the forum’s law.503 Modern Computer Systems v. Modern Banking Systems504 is
496. Id. at 633.

497. Id. at 634.
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 at 1006.
503. See, e.g., JRT, Inc. v. TCBY Sys., Inc., 52 F.3d 734 (8th Cir. 1995) (decided under Arkansas con-
flicts 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 conflicts law).
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 spe-
cifically prohibit the choice of another state’s law. Assisted by Minnesota’s 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 Minnesota’s 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 Int’l. 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 dealer-
ship 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. at 386.
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 fran-
chise, 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 franchisor’s headquarters in Vancouver, British Columbia.511
However, the franchisor argued that the application of Washington law was contrary to
California’s public policy embodied in California’s franchise statute, which prohibited waiver of
its provisions. Indeed the statute provided that “[a]‌ny … provision purporting to bind any per-
son 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 franchisor’s argument that the Washington statute could
not be applied extraterritorially to a California franchise. The court reasoned that “[i]rrespec-
tive 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 geographi-
cal 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), reh’g denied (Nov. 5, 2010), review denied (Jan. 12, 2011).
511. Id. at 926.
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 sum-
mary 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 agree-
ment giving a franchisee superior protection from summary termination under the chosen law of another
state.” Id.
514. Id. at 937.
515. 387 Fed. App’x. 727 (9th Cir. 2010) (decided under Washington conflicts law).
516. Id. at 729 (quoting Wash. Rev. Code § 19.100.170).
517. Id.
clause. One difference is that a typical choice-of-law clause chooses a state’s 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 incorpora-
tion clauses rather than as choice-of-law clauses (a question that depends on contractual lan-
guage 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 them-
selves 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 mate-
rial 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 sub-
stantive 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 subsection 2.523
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 Laws 1133.
519. For discussion and citations, see id. at 1089–90.
520. Restatement (Second) § 187, cmt. d.
522. The disputed issue was the permissible grounds of summary termination of a franchise by the fran-
chisor. By choosing Washington law, the parties opted for a regime that was more protective of the fran-
chisee 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 chosen law.
Contracts 433
which has much less power than in a common law system. For this reason, courts cannot pro-
tect 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 the other.
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 §§ 3803.1–3813 (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. Int’l L. 305 (2001); J.
Courson, Yavuz v. 61 MM, Ltd.: A New Federal Standard—Applying 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, Lloyd’s 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
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 exam-
ple, under the Brussels I Regulation3 (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. Comm’n, 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: A Modern 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. Özdel, 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. Int’l 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 I recast) 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 opposite—a 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 fre-
quently 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 state’s 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 selec-
tion 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, 77–78 (9th Cir. 1987); Keaty v. Freeport Indonesia, Inc., 503 F.2d 955,
956–57 (5th Cir. 1974); Citro Fla., Inc. v. Citrovale, S.A., 760 F.2d 1231, 1231–32 (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 state’s
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, com-
bined 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 state’s 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.”).
American courts accepted nonexclusive clauses relatively early and easily,11 but they ini-
tially rejected exclusive clauses on the ground that they illegally “ousted” a court’s jurisdiction.12
A similar 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 negotiated”15 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 par-
ties’ bargaining power was clearly unequal, the clause was not bargained for, and Florida was
quite remote from the passenger’s 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 Nat’l 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).
13. See infra 462–65.
14. The Bremen, 407 U.S. 1 (1972).
15. Id. at 12.
16. Id. at 10.
17. Id. at 14.
18. Id. at 12.
19. Id. at 15.
20. Id. at 10.
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. at 593.
24. L.S. Mullenix, Gaming the System: Protecting Consumers from Unconscionable Contractual Forum-
Selection and Arbitration Clauses, 66 Hastings L.J. 719, 745 (2015).
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 court’s position that “a nonnegotiated forum-selection
clause in a form ticket contract is never enforceable simply because it is not the subject of bar-
gaining,”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, employ-
ment 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 court’s jurisdiction is based solely on
25. Id. at 754.

26. 499 U.S. at 593.
27. Id. at 594.
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 defendant’s 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), Carnival’s Got the
Fun … and the Forum: A New 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. Int’l 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 Int’l L.J. 51 (1992); D.H. Taylor, The Forum Selection Clause: A Tale
of Two Concepts, 66 Temp. L. Rev. 785 (1993).
30. Mullenix, supra note 24, at 748.
31. Id. at 749.
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 Chrysler–Plymouth, Inc., 473 U.S. 614 (1985); Bense v. Interstate
Battery Sys. of Am., Inc., 683 F.2d 718, 720–21 (2d Cir. 1982). See also Vimar Seguros y Reaseguros,
S.A. v. M/V Sky Reefer, 515 U.S. 528 (1995), discussed infra 475–77.
diversity, because, in these cases, state rather than federal law governs substantive legal ques-
tions. 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 unenforce-
able) 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 selec-
tion 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
Bremen’s 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 550–51.
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 defini-
tively resolved this debate in favor of exclusive application of federal common law principles, but it would
seem so.”).
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. New York 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 Inv’rs 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. & Commc’ns, Inc. v. Kmart Corp., 41 F. Supp. 2d 268 (S.D.N.Y. 1998). But see Gen. Eng’g 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. Transnat’l L. 663 (1997).
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 I Regulation.
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 con-
sumer, 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 selec-
tion clauses. As one astute observer noted,
If one sifts through the thousands of reported federal forum-selection clause decisions since [The
Bremen v.] Zapata—and there are thousands of such decisions—one 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 con-
sumer 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 employee—but not the other party—to
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, 259–66
(2010); S. Symeonides, Choice of Law in the American Courts in 2010: Twenty-Fourth Annual Survey, 59 Am.
J. Comp. L. 303, 375–77 (2011); S. Symeonides, Choice of Law in the American Courts in 2011: Twenty-Fifth
Annual Survey, 60 Am. J. Comp. L. 291, 338–39 (2012); S. Symeonides, Choice of Law in the American Courts
in 2012: Twenty-Sixth Annual Survey, 61 Am. J. Comp. L. 217, 247–55 (2012); S. Symeonides, Choice of Law
in the American Courts in 2013: Twenty-Seventh Annual Survey, 62 Am. J. Comp. L. 223, 240–47 (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 selection cases.
45. 715 F.3d 276 (9th Cir. 2013).
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 agreement—which 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 showing that:
(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 dura-
tion 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”[;]‌47 and
(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 deter-
mine: (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 pur-
ports 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 exam-
ine whether it encompassed the plaintiff ’s tort claims, implying that those claims did not depend on the
interpretation of the contract.
the parties’ consent was free of vices, or in The Bremen terms, “unaffected by fraud, undue influ-
ence, or overweening bargaining power.”50 The Bremen Court’s 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 agree-
ments 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 state’s law should one answer these ques-
tions? 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 selec-
tion 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 charac-
terized this as the “chicken or the egg” question.51
Figure 5, 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 cases into:
(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
Action filed in another court (“seized” court)
chosen court
Apply lex Apply lex Without a choice-of-law clause With a choice-of-law clause
fori contractus
Apply Apply law of Apply lex Apply law of Apply law of

Apply lex fori
lex fori chosen court contractus chosen court chosen state
Figure 5. Law Governing Forum Selection Clauses.
The following text discusses the resulting three scenarios.
50. The Bremen, 407 U.S. at 12.

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 Wisconsin’s 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.
1. Scenario 1: Action Filed

in the 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 forum’s 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 state’s law.53 Even if the court does not sub-
scribe 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 that court.
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 proposi-
tion 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 authori-
tative (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) (con-
tract containing Illinois forum selection and Alabama choice- of-
law clauses); Intermetals Corp.
v. Hanover Int’l AG fur Industrieversicherungen, 188 F. Supp. 2d 454, 458 (D.N.J. 2001) (contract con-
taining 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 dis-
pute 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
2. Actions Filed in a Court Not

Chosen (the “Seized” Forum)
Cases in which the action is filed in a forum other than the one designated in the forum selec-
tion clause are more numerous and more difficult. These cases can be divided into two cat-
egories: (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 without Choice-of-Law Clauses

This scenario consists of cases in which the action is filed in a forum other than the one desig-
nated 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 depth—Professors 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 desig-
nated 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, Italian law.
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 clause’s 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. at 510.
61. 969 N.E.2d 166 (Mass. App. Ct. 2012).
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 Illinois law.
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 chosen court;
(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 mani-
festly 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. at 168.

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 essen-
tial 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, and 184.
The European Union’s Brussels I Regulation 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 I Regulation assigns all issues of “substantive validity”69 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 I Regulation in 2012 was abandoned, primarily for lack of time.71
b. Scenario 3: Contracts with Choice-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 enforce-
ability, 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 con-
tract (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 I provides 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 informa-
tion 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 Council’s drafting group, formally called the
Working Party on Civil Law Matters (Brussels I).
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 selec-
tion 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); Fru–Con 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 Lloyd’s, 148 F.3d 1285 (11th Cir.
1998); Richards v. Lloyd’s of London, 135 F.3d 1289 (9th Cir. 1998); Stamm v. Barclay’s Bank of New York,
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. Lloyd’s 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. Soc’y of Lloyd’s, 3
F.3d 156 (7th Cir. 1993); Hugel v. Corp. of Lloyd’s, 999 F.2d 206 (7th Cir. 1993); Roby v. Corp. of Lloyd’s,
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 Int’l 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., 325 P.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 Nat’l Ass’n, 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, at 652.
76. Id. at 653.
77. 325 P.3d 70 (Utah 2014).
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 rel-
evant 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 context—determining 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 Commission’s jurisdiction, invoking the Virginia forum selection
clause. In turn, the player invoked a Maryland statute, Section 9–104(a), which did not mention
forum selection clauses but prohibited any agreement waiving an employee’s rights under the
statute. Applying this statute, the Maryland court upheld the Commission’s jurisdiction, reason-
ing that the Virginia forum selection clause was tantamount to the very waiver of the employee’s
rights that the statute prohibited.80 Again, the court made no reference to Virginia law.
(2) CASES APPLYING THE CHOSEN LAW

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, vir-
tually 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
78. See infra 472–73.

79. 51 A.3d 544 (Md. 2012).
80. See id. at 549 (“Section 9–104(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.
A holding that forum selection clauses constitute an exception to § 9–104 would contravene basic prin-
ciples concerning the interpretation of statutes.”).
81. In addition to the cases discussed in the text, see Jacobsen Constr. Co. v. Teton Builders, 106 P.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., 773 P.2d 1143 (Idaho 1989); Gen. Eng’g 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. 07–CV–
766S, 2011 WL 4954790 (W.D.N.Y. Oct. 18, 2011); Lanier v. Syncreon Holdings, Ltd., No. 11–14780,
2012 WL 3475680 (E.D. Mich. Aug. 14, 2012); Global Link, LLC. v. Karamtech Co., Ltd., 06–CV–14938,
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).
Fribourg”83 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 inter-
national commercial agreement’s forum-selection provision as construed under the law specified
in the agreement’s 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 man-
ufacturer 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 manufacturer’s par-
ent 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. at 422.

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 con-
tract, 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 effectu-
ate the parties’ agreement concerning the forum only if it interprets the forum clause under the chosen law.”)
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), recon-
sideration denied, 138 Ohio St. 3d 1418 (Ohio 2014).
88. Enquip Tech., 986 N.E.2d at 474.
89. Id. at 477.
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
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 con-
cluded 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 Kansas’s lex loci contractus rule. After discuss-
ing 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 clause’s meaning in Italian law. Consequently, we
considered what meaning Italian law would give to the clause’s 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. at 646.
96. Id. at 651.
the court held the forum selection clause to be exclusive and affirmed the district court’s dis-
missal 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 court’s opinion, the afore-
mentioned 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 … pro-
ceedings … 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 BETWEEN INTERPRETATION 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 court’s own logic,
(2) that of the chosen court, or (3) that of the state whose law is chosen? A further question,
97. The court’s 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 proce-
dural matter governed by federal law—the 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 noted that:
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, 83–84 (S.C. Ct. App.2007).
Id. at 653. However, the Nash case did not involve this or an analogous issue.
99. Id.
100. 329 P.3d 1264 (Mont. 2014).
101. Id. at 1268.
103. Id. at 1270–71.
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 con-
tains 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 con-
travene 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 distinc-
tion 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 selec-
tion 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, 325 P.3d at 82.

105. 494 F.3d 378 (2d Cir.2007).
106. Id. at 383.
107. The Bremen, 407 U.S. at 10, 12, 14, 15.
108. Phillips, 494 F.3d at 384–85.
109. Id. at 385.
110. See id., quoting Yavuz v. 61 MM, Ltd., 465 F.3d 418, 428–30 (10th Cir. 2006) (discussed supra).
111. 740 F.3d 211 (2d Cir. 2014).
discrimination claims fell within the scope of the forum selection clause, and that, under fed-
eral 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 pur-
poses 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 per-
missive 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 substan-
tive rules developed under Erie.”114 The enforceability of a forum selection clause is a proce-
dural 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 contrac-
tually 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. at 220.
114. Id.
115. Id. at 221.
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).
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 issue—whether 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 enforce-
ment 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
forum’s 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 selec-
tion 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 con-
travene 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 451–52.
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.
P’ship, 740 F.2d 148 (2d Cir. 1984).
125. No. 07–CV–766S, 2011 WL 4954790, (W.D.N.Y. Oct. 18, 2011).
126. No. 11–14780, 2012 WL 3475680 (E.D. Mich. Aug. 14, 2012).
127. See Lambert v. Kysar, 983 F.2d 1110 (1st Cir. 1993); Gen. Eng’g Corp. v. Martin Marietta Alumina,
Inc., 783 F.2d 352 (3d Cir. 1986).
128. 773 P.2d 1143 (Idaho 1989).
129. Id. at 1146 (quotation marks omitted, emphasis partially omitted).
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 summary then:
(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 selec-
tion 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 auto-
matically applying lex fori to questions of … enforceability and validity”132 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
contract’s 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 selec-
tion 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
Tribe’s 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 unenforce-
able 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 rep-
resentative 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 dispute rules.
131. Yackee, supra note 1, at 43, 44, 47, 74, 79, 85, 88 (2004).
132. Id. at 83.
133. Id. (footnotes omitted).
Yackee argues that:
[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 clause’s]
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 cor-
responding 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 juris-
diction and venue, and to do so by uniform rules.
• Lex fori would avoid the discomfort of sometimes allowing foreign law to determine
whether jurisdiction or venue exists in the seized court.
• 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 enforce-
able 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 pro-
cedural 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. at 94.
135. Clermont, supra note 1, at 654–55 (footnotes omitted).
136. See the provisions of the Brussels I Regulation 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).
with jurisprudence developed in the dissimilar context of sophisticated business partners freely
negotiating at arm’s length.137
This regime “works to the advantage of prospective corporate defendants who … exploit
forum-selection and choice-of-law clauses to their advantage”138 and at the expense of unin-
formed 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 I win, tails you lose’ forum preference.”140
In other words, the current American regime is bad enough as it is—and 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 get-
ting 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
begin with?
137. Mullenix, supra note 24, at 719.

138. Id. at 743.
139. See id. at 755–56:
The entire doctrine surrounding the sanctity of forum-selection and arbitration clauses in the con-
sumer 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) con-
sumer 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 designa-
tion. 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 will-
ingly 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 . . . is true?
140. Id. at 736 (“forum-selection clauses will almost always provide defendants with a ‘heads I win, tails
you lose’ forum preference.”).
141. See supra notes 42 and 136, referring to the Brussels I Regulation and the Hague Choice of Court
Convention.
142. 715 F.3d 276 (9th Cir. 2013), discussed supra at 441–42.
143. Id., Boeing International Support Systems Company’s Answering Brief, 2012 WL 2313305 at *18
(9th Cir June 7, 2012).
“Respect for party autonomy”144 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 fiction”146 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 another state.
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 con-
sumer) the “choice” of State X’s courts and law, even though State X has only a nominal con-
nection with the case. Do the other states owe a blank check to the strong party?
Chapter 10, 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 prohibi-
tions 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 sce-
nario, although the chosen forum was in the franchisor’s home-state and thus did not lack a
connection with the case. A contract between a California franchisor and a New Jersey fran-
chisee 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 pro-
hibit 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 liti-
gant 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. at 12.
147. 680 A.2d 618 (N.J. 1996).
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 con-
cluded 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
franchisee’s 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 fran-
chisee, 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 OF FORUM SELECTION CLAUSE

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 a case?
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 intermediate court.

149. Id.
150. Id. at 626.
151. Id. at 627.
152. Id. at 628.
153. Kubis, 680 A.2d at 628.
154. 388 U.S. 395 (1967).
155. Id. at 403–04.
156. Id. at 404.
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).
In Scherk v. Alberto–Culver 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 trans-
position. 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 pro-
tects 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 negotia-
tion.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 519 n.14.
161. See, e.g., Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 960 (10th Cir. 1992); Richards
v. Lloyd’s of London, 135 F.3d 1289, 1296–97 (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); Nat’l Indus. Grp. (Holding) v. Carlyle
Inv. Mgmt. L.L.C., 67 A.3d 373 (Del. 2013); Provence v. Nat’l Carriers, Inc., 360 S.W.3d 725, 729 (Ark.
2010); Ex parte Leasecomm Corp., 879 So. 2d 1156, 1158–59 (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 A Buck Licensing, Inc., 2013 WL 5533113 (Ohio Ct. App. Oct. 7, 2013); Edge Telecom,
Inc. v. Sterling Bank, 143 P.3d 1155, 1162 (Colo. App. 2006); Golden Palm Hosp., Inc. v. Stearns Bank,
874 So. 2d 1231, 1235–36 (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. Nat’l Bus. Inst., Inc., 94 S.W.3d 91, 102 (Tex.
App. 2002), reh’g overruled (Nov. 7, 2002), review denied (Mar. 6, 2003), reh’g of petition for review denied
(May 8, 2003).
162. Yackee, supra note 1, at 59.
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., 341 P.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
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 fiction—because it is a fiction—is 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 mislead-
ing. 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 rep-
resentation in Oklahoma agree to litigate in California?
165. See, e.g., Farmland Indus., Inc. v. Frazier-Parrott Commodities, Inc., 806 F.2d 848, 851–52 (8th Cir.
1986); DeSola Grp., Inc. v. Coors Brewing Co., 199 A.D.2d 141, 141–42, 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. 325 P.3d 70 (Utah 2014).
167. Energy Claims, 325 P.3d at 86.
168. Id.
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 rea-
sons 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 Court’s expan-
sive interpretation of the FAA, American law has become one of the most hospitable to arbitra-
tion, 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 commerce”171 (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 arbitra-
tion agreements subjecting to arbitration even claims arising from personal injury or death.
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 inter-
state 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 agree-
ment 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. Kröll, 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. O’Neil, 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.
Barceló & A.T. von Mehren, International Commercial Arbitration: A Transnational Perspective (5th ed.
2012); R. Weintraub, International Litigation and Arbitration: Practice and Planning (6th ed. 2011).
170. See 9 U.S.C. §§ 1–16 (2015).
171. 9 U.S.C. § 2 (2015) (emphasis added).
172. The Supreme Court has interpreted the FAA as being coextensive with Congress’s 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), reh’g denied (Nov. 30, 2006).
174. Id. at 113.
175. In Dees v. Billy, 357 Fed. App’x. 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 doctor’s Nevada office was adhesionary and unenforceable
under Nevada law. The form also contained a California choice-of-law clause.
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 per-
sonal 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 con-
fidentiality 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 arbi-
trator 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 Court’s 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. at 1203.
179. 9 U.S.C. § 1 (2015).
180. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001). In contracts involving international com-
merce, the “New York Convention” (infra) applies to all employment contracts, including those involv-
ing 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 enforc-
ing 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 Int’l Ltd., 931 So. 2d 1163 (La. Ct. App.2006), reh’g denied (June 30, 2006);
Lindo v. NCL (Bahamas) Ltd., 652 F.3d 1257 (11th Cir. 2011); Singh v. Carnival Corp., 550 Fed. App’x. 683
(11th Cir. 2013), cert. denied, 134 S. Ct. 2729 (2014); Quiroz v. MSC Mediterranean Shipping Co. S.A.,
522 F. App’x 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 [FAA’s] sub-
stantive law that attacks on the validity of the contract, as distinct from attacks on the validity of the arbi-
tration clause itself, are to be resolved by the arbitrator in the first instance, not by a federal or state court.”
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 “gener-
ally 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 agree-
ment 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 law”186 ends with federal law preempting state law.
2. The Supreme Court’s Strong Pro-A rbitration Stance

Arbitration conducted in the United States, whether it involves international or interstate dis-
putes, is governed by the first chapter of the FAA and differs in many respects from inter-
national 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 California’s 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 “categorical”190 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. Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996).
186. Kilgore v. KeyBank, Nat. Ass’n, 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 note 184
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, 113 P.3d 1100 (Cal. 2005).
190. Marmet Health Care Center, Inc. v. Brown, ___U.S.___, 132 S. Ct. 1201, 1204 (2012).
FAA’s objectives.”191 This ruling left lower courts struggling to determine what is, and what is
not, an “obstacle” to the FAA’s objectives.192
Before we discuss some representative cases from the lower courts, it is worth noting that
the Supreme Court’s 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 Act’s non-waiver provisions did
not amount to a “contrary congressional command,” which, under Supreme Court precedents,
is necessary for a federal statute to trump the FAA.
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 pro-
hibitive,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 antitrust laws.
Relying on the concept of “effective vindication of statutory rights” derived from a dictum
in the Supreme Court’s decision in Mitsubishi,197 the Second Circuit accepted the argument
and thrice ruled for the plaintiffs. Mitsubishi stated that parties may agree to prosecute statu-
tory 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 con-
demning … as against public policy” an arbitration agreement that operates “as a prospective
waiver of a party’s right to pursue statutory remedies for antitrust violations.”199 The Second
Circuit concluded that the class-arbitration waivers in Amex’s contracts had precisely the effect
191. Concepcion, 131 S. Ct. at 1753.

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, 231–40 (2014); S. Symeonides, Choice
of Law in the American Courts in 2012: Twenty-Sixth Annual Survey, 61 Am. J. Comp. L. 217 221–37
(2013); S. Symeonides, Choice of Law in the American Courts in 2011: Twenty-Fifth Annual Survey, 60
Am. J. Comp. L. 291, 329–31 (2012).
193. ___ U.S.___, 132 S. Ct. 665 (2012).
194. Id. at 671.
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 474–75.
198. Mitsubishi, 473 U.S. at 637 (emphasis added).
199. Id. at 637, n.19.
that the Mitsubishi Court had promised to condemn—“grant[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 afford-
able procedural path to the vindication of every claim,” and thus does not contain a “congres-
sional 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 asser-
tion” 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 majority’s 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 liability—even if it has in fact violated the law.”206 In a nutshell, said Kagan, the major-
ity’s 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 arbi-
tration 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 compa-
nies 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), reh’g en banc denied
681 F.3d 139 (2d Cir. 2012), rev’d by the Supreme Court decision discussed in the text.
201. Am. Express Co. v. Italian Colors Rest., ___U.S.___, 133 S. Ct. 2304, 2309 (2013).
203. Id. at 2310–11.
205. Id.
206. Id. at 2313 (Kagan, J., dissenting).
207. Italian Colors, 133 S. Ct. at 2313.
208. Note, Class Actions—Class Arbitration Waivers—American Express Co. v. Italian Colors Restaurant,
127 Harv. L. Rev. 278, 278 (2013).
209. Id. at 283.
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 play-
ing field for employees and consumers.
3. The Lower Courts’ Efforts to Level

the Playing Field
a. Employment Contracts
In Harris v. Bingham McCutchen LLP,211 a California employment contract contained an arbitra-
tion 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 court’s denial of the employer’s motion to compel
arbitration, because the arbitration clause did not specifically include, in “clear and unmistak-
able 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 con-
tracts of adhesion—for 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 worker’s claims but exempted most of the employer’s 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 establish-
ing 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).
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 “neu-
tral” 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
Halliburton’s argument that the arbitration agreement was a unilateral contract, and held that,
under New Mexico’s 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 Mexico’s public policy, the court found that the arbitration agreement was unrea-
sonably 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 claim arose.
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 con-
sumers 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 substan-
tively unconscionable, whereas the second found it to be procedurally unconscionable.
216. Id.
217. 306 P.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 AAA’s 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. 303 P.3d 814 (N.M. 2013).
220. 293 P.3d 1197 (Wash. 2013).
221. 737 F.3d 636 (9th Cir. 2013).
In Gandee, the clause shortened to 30 days the applicable four-year statute of limitations,
imposed a “loser pays” provision that violated Washington’s consumer protection statute appli-
cable 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 consumer’s 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
Washington’s 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 Concepcion’s adverse impact on consum-
ers 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 puta-
tive class action in Montana. The trial court denied the defendant’s motion to compel arbi-
tration under Montana’s “reasonable expectations/fundamental rights” test, which required
arbitration clauses in adhesion contracts to be within a party’s “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 court’s 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, 293 P.3d at 1199 (internal quotation marks omitted).

223. 722 F.3d 1151 (9th Cir. 2013).
224. See id. at 1156–57.
225. Id. at 1160 (emphasis added). The trial court had also held the New York choice-of-law clause
unenforceable, finding that New York law was contrary to Montana’s fundamental public policy, and that
Montana had a materially greater interest than New York in protecting Montana consumers. The Ninth
Circuit agreed that Montana had a greater interest, but held that the federal preemption of Montana’s
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. at 570.
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 300 percent 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 lender’s 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 300 percent
interest rate was permissible under Delaware law, a Pennsylvania statute not only prohibited inter-
est rates over 6 percent, but also invalidated waivers of its provisions and imposed criminal pen-
alties 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 arbitra-
tion 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 arbitrators—whose livelihood depends on repeat institutional clients,
such as lenders, rather than individual borrowers—is 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 par-
ticular 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 focus-
ing on consumer debt cases, withdrew from that market after being sued in two
lawsuits: (a) one by San Francisco’s 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, A “National 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 Court’s Recent Arbitration Jurisprudence, 48 Hous. L. Rev. 457 (2011); P.L. Murray, Privatization of
Civil Justice, 15 Willamette J. Int’l L. & Disp. Resol. 133 (2007); J. Resnik, Fairness in Numbers: A Comment
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.”).
cases heard over several years, consumers won thirty times”;231 and (b) another suit by
Minnesota’s attorney general, charging that NAF shared a common owner with one of
the country’s 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 at all.
4. Separability of Arbitration 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 con-
tract 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, at 109.

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 arbi-
tration clause which forms part of a contract shall be treated as an agreement independent of the other
terms of the contract. A decision 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. Barceló, Who Decides the
Arbitrators’ Jurisdiction? Separability and Competence-Competence in Transnational Perspective, 36
Vand. J. Transnat’l L. 115 (2003); G.A. Bermann, The “Gateway” Problem in International Commercial
Arbitration, 37 Yale J. Int’l 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. Int’l 56 (2008); A.S. Rau,
The Arbitrability Question Itself, 10 Am. Rev. Int’l Arb. 287 (1999); A.S. Rau, Everything You Really Need
to Know about “Separability” in Seventeen Simple Propositions, 14 Am. Rev. Int’l Arb. 1 (2003); A. Samuel,
Separability and the US Supreme Court Decision in Buckeye v. Cardegna, 22 Arb. Int’l 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. Int’l Arb. 19 (2002); C. Svernlov, What
Isn’t, Ain’t: The Current Status of the Doctrine of Separability, 8 J. Int’l Arb. 37 (1991); S.J. Ware, Arbitration
Law’s 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
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 this issue.
(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
different laws.
B. FOREIGN ARBITRATION

1. The Supreme Court’s 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
(“New York 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 Barceló, Berman, and Smit cited at note
236, supra. The American version of this doctrine (compétence-compétence 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 Barceló, supra note 236, at 1123–34.
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. Int’l Bd. of Teamsters, 561 U.S. 287, 130 S. Ct. 2847,
2855–56 (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, 403–04 (1967) (“[I]‌f
the claim is fraud in the inducement of the arbitration clause itself—an issue which goes to the ‘making’
of the agreement to arbitrate—the federal court may proceed to adjudicate it.”)
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).
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 New York Convention applies in all other cases.245 The balance of this
section is limited to the New York Convention.
The New York convention applies not only to arbitration “awards,” as its title says, but also
to arbitration agreements. The implementing federal statute confines the Convention’s substan-
tive 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. §§ 201–208 (2015) (implementing the New York Convention); 9 U.S.C. §§ 301–307
(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).
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 reso-
lution 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 coun-
terclaims, 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
party’s 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 mari-
time 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 827–28 (2d Cir. 1968).
253. Mitsubishi Motors, 473 U.S. at 629.
254. Id. at 628.
255. Id. at 636–37.
256. Id. at 637 n.19.
257. Id. at 637.
258. 515 U.S. 528 (1995).
259. A Moroccan supplier had sold to a New York 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 New York distributor and its insurer sued the shipowner in Massachusetts.
it violated Section 3(8) of the Carriage of Goods by Sea Act (COGSA), which prohibits the
“lessening” of the carrier’s liability for fault.260 Pursuant to this section, lower courts have rou-
tinely 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 settle-
ments 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 gen-
eral, 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 New York 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 arbitra-
tors might not be able or willing to apply COGSA correctly. Quoting The Bremen,266 Scherk,267
Mitsubishi Motors,268 and other “internationalist” cases, the Court said:
[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 the Act.
260. That section provided: “Any clause … relieving the carrier or the ship from liability for loss or dam-
age to or in connection with the goods, arising from negligence, fault, or failure in the duties or obliga-
tions 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, 723–25 (4th Cir. 1981); Conklin & Garrett, Ltd v. M/V Finnrose,
826 F.2d 1441, 1442–44 (5th Cir. 1987).
262. Indussa, 377 F.2d, at 203–04.
263. See State Est. for Agric. Product Trading v. M/V Wesermunde, 838 F.2d 1576, 1580–81 (11th Cir.
1988), cert. denied, 488 U.S. 916 (1988).
264. Vimar Seguros, 515 U.S. at 534.
265. Id. at 536.
266. 407 U.S. 1. 1907 (1972), discussed supra at 438.
267. 417 U.S. 506 (1974).
268. 473 U.S. 614 (1985).
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 cus-
tomary and understandable unwillingness to cede jurisdiction of a claim arising under domestic
law to a foreign or transnational tribunal . . . . A parochial 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 “premature”272 the plaintiff ’s argument that the Japanese arbitra-
tors would not apply COGSA but rather the Japanese Hague Rules, which in fact lessen the
carrier’s 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 majority’s rea-
soning, “[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 wit-
nesses, interpreters, and lawyers employed by both parties.”276 Justice Stevens also criticized the
majority’s failure to address the issues raised by the choice-of-law clause.277
269. Vimar Seguros, 515 U.S. at 537–38 (internal quotation marks omitted).
270. Id. at 539.
271. Id.
272. Id. at 540.
273. Id. at 541.
274. Id. at 540.
275. Vimar Seguros, 515 U.S. at 551 n.12.
276. Id. at 551.
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 carrier’s formal liability.”).
2. Law Governing the Arbitration

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 New York Convention.
The Convention does not answer the question of which law governs the arbitration agree-
ment 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.
Chapter 2 of the FAA, which implements the New York Convention, incorporates by refer-
ence, the provisions of Chapter 1, which applies to domestic arbitration, but both chapters are
also silent on which law governs the arbitration agreement. Section 3 of Chapter 1 provides that,
upon request, the federal court before which an issue referable to arbitration under an arbitra-
tion 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 indicate which.
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 appli-
cable 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 agree-
ment, (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, inter alia:
(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”;282 or
(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. New York Convention, Art. II(3).

279. 9 U.S.C. § 3 (2015).
280. New York Convention, Art. V(1)(a).
281. Id.
282. Id. Art. V(2)(a).
283. Id. Art. V(2)(b).
history of the Convention may help answer this question because it explains the incomplete-
ness 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 Convention’s 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. A parallel rule for the pre-arbitration
phase would be to refer this issue to the choice-of-law rules of the pre-arbitration forum.
• 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 par-
ties 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-arbitration phase.
• The third rule of Article V authorizes the application of the substantive law of the rec-
ognizing 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. A parallel rule allowing the pre-arbitration forum to
invoke its own public policy as the reason for refusing to recognize an arbitration agree-
ment 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 (quot-
ing A.J. van den Berg, The New York 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.
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 agree-
ment 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. A draft 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 of Formation of the

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, at 17.

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 472–73.
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”).
determining the existence of a putative international arbitration agreement or a putative con-

tract 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 of Scope, 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 pro-
vision 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 valid-
ity 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 Reporter’s 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 con-
tract 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. Reporter’s Note a (parenthetical citations omitted).

293. New York 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).
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 arbitra-
tion 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 recognizable there.
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 arbi-
tration 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 New York 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).
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 federal law),
[A]‌court in the United States may properly give effect to the foreign restriction to the extent the
forum’s choice-of-law rules designate the foreign law as governing . . . if the forum’s 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 sub-
merged coral reef in Hawaii, and a Florida salvage company provided that “[a]‌ny dispute aris-
ing 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 $15 million. 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 dis-
pute 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 English law.
The court acknowledged that the Supreme Court has not resolved this question but con-
cluded 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).
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. Public Policy
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 forum’s 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 party’s right to pursue statutory remedies for antitrust viola-
tions, 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 forum’s 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 prema-
turity argument is too simplistic, if not misguided.
Lindo v. NCL (Bahamas) Ltd.310 and Aggarao v. MOL Ship Management Co. Ltd.311 illus-
trate 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. at 540.
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).
defendant’s 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 seaman’s home country, here Nicaragua, under the law of the country of the ship’s flag. The
ship carried the flag of the Bahamas, which was a flag of convenience. In response to the ship
owner’s 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 pro-
spective 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, noting that
[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 agree-
ment 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 prema-
ture 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 at 1279.
315. Id. at 1276.
316. Id. at 1276–78, 1280–82.
317. Id. at 1283–86.
318. See New York Convention, Art. V(1)(e); Art. VI.
“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. A maritime 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 Seaman’s 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
proceedings—the 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 court’s words, the award
“transgressed this country’s 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 autho-
rize the use of the forum’s public policy as a ground for refusing to enforce an arbitration agree-
ment, 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 forum’s choice-of-law rules within
the term “federal law.”
319. 675 F.3d 355 (4th Cir. 2012).

320. Id. at 373.
321. Id. at 373 n.16 (emphasis added).
322. See Aggarao v. MOL Ship Mgmt. Co., Ltd., Civil No. CCB–09–3106, 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).
3. Law Applicable in Arbitration

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 con-
firm 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 88 percent of the cases referred to ICC arbitration in 2012, the parties had chosen the appli-
cable substantive law.330 The breadth of the parties’ power to choose the applicable law is evi-
dent 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 anational law.
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. Int’l Arb. 39 (1997); C.G. Buys, The Arbitrators’ Duty to Respect the Parties’ Choice
of Law in Commercial Arbitration, 79 St. John’s 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. Int’l Arb.
393 (2003); B. Wortmann, Choice of Law by Arbitrators: The Applicable Conflict of Laws System, 14 Arb.
Int’l 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 des-
ignation 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. Bühler, Handbook of ICC Arbitration Commentary, Precedents, Materials
§ 21-4 (3d ed. 2015). In 16.95 percent of these cases, the parties chose English law, in 13.43 percent, they
chose Swiss law, and in 9.78 percent, 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).
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 predi-
lections 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 disinter-
ested.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 deter-
mines 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/commis-
sion on_european_contract_law. For authoritative commentary by the principal drafters, see O. Lando
& H. Beale (eds.), The Principles of European Contract Law, Parts I and II (1999); O. Lando, E. Clive, A.
Prüm & 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 usu-
ally 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 Isn’t, in Festschrift für Konstantinos D. Kerameus 1397 (2009).
338. AAA International Arbitration Rules, Art. 31(1) (2014).
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 tribunal’s 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 rec-
ognizing 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 Circuit noted,
The public policy defense is to be construed narrowly to be applied only where enforcement
would violate the forum state’s 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 New York 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 over-
come 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 gen-
eral 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 L’Industrie du Papier, 508 F.2d 969,
973–74 (2d Cir. 1974) (an “expansive construction of this defense would vitiate the Convention’s 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. Int’l 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);
Nat’l Oil Corp. v. Libyan Sun Oil Co., 733 F. Supp. 800 (D. Del. 1990); SEI Societa Esplosivi Industriali SpA
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 Circuit noted:
[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 arbitra-
tor 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 Commc’ns 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. App’x. 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, 436–37 (1953).
344. See Telenor Mobile Commc’ns 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); Int’l 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); Int’l 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, 933–34 (2d Cir. 1986) (cita-
tions 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 appreci-
ate 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
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 con-
cerned, 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. Ass’n, 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. Int’l 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 New York Court of Appeals, 15 Am. Rev. Int’l
Arb. 315 (2004); See also The “Manifest Disregard of Law” Doctrine and International Arbitration in
New York, Report by the Committee on International Commercial Disputes of the Association of the Bar
of the City of New York (Sept. 2012), available at http://www2.nycbar.org/pdf/report/uploads/20072344-
ManifestDisregardofLaw—DoctrineandInternationalArbitrationinNewYork.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 cover-
age 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 contamina-
tion 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 con-
taminated 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 statute’s application to insurance contracts having certain enumerated contacts with the
enacting state.1 For example, a Texas statute provides that
[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] not-
withstanding 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 294–299.
2. Tex. Ins. Code Ann. § 21.42 (2015).
493
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 con-
tractual choice of another state’s 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 provides that:
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 word-
ing), all of these localizing provisions qualify as choice-of-law rules, albeit of the unilateral type.
A unilateral 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 applica-
tion 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. A fortiori, 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 insured’s 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 prop-
erty 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. § 56-7–102 (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 insured’s 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 restat-
ing its expressed meaning.”11 Most courts accept this principle and comply with the legisla-
tive 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 prepar-
ing their case.
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 con-
taminated 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
lex fori.
9. 603 N.W.2d 198 (S.D. 1999).

10. Id. at 201.
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, 290–92 (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, 797 P.2d 168 (Kan. Ct. App. 1990); Reger v. Nat’l. Ass’n 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 519–21, see: Austin Bldg. Co. v. Nat’l 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).
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 unin-
sured or underinsured motorist. A conflict 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 occurred there.
When the forum does not have such a statute, or when the court finds the statute inappli-
cable, the court resolves the conflict under the forum’s 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. Ass’n., 111 P.3d 601 (Haw. 2005); Mitchell v. State Farm Ins.
Co., 68 P.3d 703 (Mont. 2003); State Farm Mut. Auto. Ins. Co. v. Ballard, 54 P.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 (Ohio 2004).
17. See, e.g., N.H. Ins. Co. v. Hill, 516 F. App’x 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 Nat’l 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., 197 P.3d 990
(Mont. 2008); Modroo v. Nationwide Mut. Fire Ins. Co., 191 P.3d 389 (Mont. 2008); Cherokee Ins. Co., Inc.
v. Sanches, 975 So. 2d 287 (Ala. 2007); Mid-Century Ins. Co. v. Perkins, 179 P.3d 633 (Or. 2008), opinion
modified on reconsideration, 195 P.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., 178 P.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
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 methodolo-
gies: the traditional approach, the Restatement (Second), the Louisiana codification, and even
Kentucky’s lex fori approach.18
Ward v. Nationwide Assurance Co.19 was decided under Kentucky’s 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 Kentucky’s
public policy. However, the Kentucky Supreme Court reversed, based on its reasoning in a simi-
lar 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 pub-
lic 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 state’s 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 mor-
als, 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., 1 P.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 York’s “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 Georgia’s lex loci contractus rule).
19. No. 2012-CA-000809-MR, 2014 WL 7339238 (Ky. Ct. App. Dec. 24 2014), reh’g denied (Feb. 12, 2015).
20. State Farm Mut. Auto Ins. Co. v. Hodgkiss-Warrick, 413 S.W.3d 875, 887 (Ky. 2013).
This reasoning is unsurprising in the sense that it accurately reflects the classic ordre pub-
lic 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 when-
ever Kentucky has “significant contacts—not 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 Kentucky’s 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 distin-
guished between disputes between an accident victim and the tortfeasor’s 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 insured’s 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. 329 P.3d 749 (N.M. Ct. App. 2014), cert. denied, 328 P.3d 1188 (N.M. 2014).
24. See 329 P.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).
In Green v. U.S. Automobile Ass’n Auto & Property Insurance Co.,26 the insured was domi-
ciled 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, result-
ing in injuries to her minor child. The child sued the mother’s 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 insured’s household.
The plaintiff argued that the court should apply the law of South Carolina under that state’s lex
loci delicti rule. Alternatively, if Florida law were applicable, the insured argued that the fam-
ily exclusion clause was offensive to South Carolina’s 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 Carolina’s 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 house-
hold exclusion clause violated Nevada’s 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 Nevada’s 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. at 899.
28. Id.
29. Id.
30. 327 P.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).
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 state’s law. Most of the contacts listed in Section 188 also
pointed to Connecticut, and the principles listed in Section 6 supported the application of
Connecticut law.
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 Louisiana’s interests in ensuring recovery for victims of accidents
occurring within its borders, and recouping medical costs for local healthcare providers,
with Mississippi’s 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 applica-
tion 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. Ass’n.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 insured’s five
cars. The insured was domiciled in California, purchased the insurance policy there, and regis-
tered and garaged his cars there. However, the insured’s 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 car’s insurer for $50,000, the son sued his father’s
insurer for additional coverage under the father’s 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 insur-
ance 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, 68 P.3d 703 (Mont. 2003).
37. 111 P.3d 601 (Haw. 2005).
38. Mitchell, 68 P.3d at 708 (quoting Mont. Code Ann. § 28-3-102).
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 insured’s son “was working and living in Montana at the time of the accident; the
underinsured tortfeasor’s vehicle was insured in Montana; [the son’s] 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 domi-
ciliary, 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 father’s
California policy, but the policy contained three clauses that denied UM coverage to: (1) a
family member not residing in the named insured’s 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
Hawaii’s 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 Leflar’s approach, the Restatement (Second), and inter-
est analysis, coupled with “a presumption that Hawaii law applies unless another state’s law
‘would best serve the interests of the states and persons involved.’ ”43 Employing this analy-
sis, the court noted Hawaii’s “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 Policy’s applicability throughout the United
States.”44 The court also quoted from earlier cases describing the breadth and intensity of
Hawaii’s 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. at 709.
42. Mikelson, 111 P.3d at 604 (quoting the policy).
43. Id. at 607 (quoting Peters v. Peters, 634 P.2d 586, 591(Haw. 1981)).
44. Id. at 608.
45. Id. at 618 (emphasis in original; quotation marks and citations omitted).
46. Id.
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 loca-
tion” 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 gen-
eral 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 FOR ENVIRONMENTAL 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 public’s heightened sensitivity to environmental pollution in the last quarter cen-
tury and because of the significant costs associated with these coverage disputes, a virtual ava-
lanche 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 insured’s 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 New York, 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 deny-
ing coverage, unless the insurer shows that the delay has caused actual prejudice. Other states,
47. See Restatement (Second) § 193 cmt. f.

48. Pfizer, Inc. v. Emp’rs Ins. of Wausau, 712 A.2d 634, 635 (N.J.1998) (internal quotation marks omitted).
such as New York, have held that failure to give prompt notice provides a valid defense to cov-
erage, even without a showing of actual prejudice.
Most of these cases are “multisite” in that they involve multiple insured risks (the insured’s
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
30 years 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 the risk.
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).
50. See infra 503–05.
51. See infra 505–12.
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); Emp’rs Mut. Cas. Co. v. Lennox Int’l, 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 New York 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); Emp’rs Ins. of Wausau v. Duplan Corp., 899 F. Supp. 1112 (S.D.N.Y. 1995); Gould, Inc.
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 Indiana’s “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 event—like executing a contract—has not been determina-
tive if that event occurred in a state with insignificant contacts.”54 The court also reasoned
that its previous rejection of dépeçage in Simon v. United States 55 supported adherence to the
uniform-contract-interpretation approach, because it “favored applying a single state’s 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 insured’s 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 per-
formance 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 credulity”59 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 insured’s 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 Minnesota’s better-law approach
but using mostly circular reasoning, the court concluded that Minnesota’s law, which the court
judged to be better than Wisconsin’s, should govern. A dissenting judge noted this $120 mil-
lion case implicated solely Wisconsin’s 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 at 815.
55. See supra 154–55.
56. National Union, 940 N.E.2d at 815.
57. Id. at 816.
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.”).
majority’s conclusion that Minnesota’s law was better than Wisconsin’s.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 ear-
lier, “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’ Ass’n 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 insured’s 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 appli-
cable 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. Fireman’s
Fund Ins. Co., 183 P.3d 734 (Haw. 2007); Reichhold Chem., Inc. v. Hartford Acc. & Indem. Co., 750 A.2d
1051 (Conn. 2000); Pfizer, Inc. v. Emp’rs 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. Ass’n 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 con-
flicts law); General Ceramics Inc. v. Firemen’s Fund Ins. Co., 66 F.3d 647 (3d Cir. 1995); CPC Int’l, 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., 276 P.3d 1156 (Utah Ct.
App. 2012), cert. denied, 285 P.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. Emp’rs 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 Int’l, Inc. v. Aetna Cas.
& Sur. Co., 666 N.E.2d 1163 (Ohio Ct. App. 1995); CXY Chems. U.S.A. v. Gerling Global Gen’l Ins. Co.,
991 F. Supp. 770 (E.D. La. 1998); Wysong & Miles Co. v. Emp’rs 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 Int’l, Inc. v. Northbrook Excess & Surplus Ins. Co., 839
F. Supp. 124 (D. R.I., 1993) (decided under New Jersey conflicts law); CPC Int’l, 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).
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
court’s analysis was more like straight interest analysis. Noting that New Jersey’s pro-coverage
law expressed that state’s “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 deliber-
ately 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; New York, 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 New York.
Pfizer involved six waste-sites in five states other than New Jersey or New York, an insur-
ance contract negotiated and made in New York, and an insured, Pfizer, that had its head-
quarters in New York 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 New York,
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 New York, insurance policies delivered in New York, and an insured who at the
time of the contract had its headquarters in New York 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 at 893.

66. Id. at 894.
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 894–95: “[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.
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 contingen-
cies described below.
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 patterns—pro-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 three cases.
The court’s 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 sig-
nificant 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 insurer’s 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 poli-
cies, each insuring an individual risk.”).
73. Id. at 639.
74. Id. at 640.
75. Id. at 641. See also Unisys, 712 A.2d at 652; HM Holdings, 712 A.2d at 648.
76. See Pfizer, 712 A.2d at 642–43; Unisys, 712 A.2d at 652; HM Holdings, 712 A.2d at 648.
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 state’s 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 Jersey’s
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
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 Jersey’s interests to be “protection of the regulatory pro-
cess in New Jersey, protection of New Jersey policyholders, protection of the victims of pol-
lution, 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 pres-
ence in New Jersey, but concluded that New York’s 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 York’s 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 court’s ear-
lier conclusion that the law of the site-states would be identical to either New Jersey’s or
New York’s, 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 Jersey’s
(pro-coverage), then a true conflict would be present before a disinterested forum between
the law of the site-state and the law of New York. In such a case, the application of the law
of the site-state will produce a result that is in tune with New Jersey’s pro-coverage lean-
ings.83 If the law of a site-state is identical to New York’s (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 New York’s interests nor, as the court said, New
Jersey’s public policy.84
In Unisys (which involved sites in seven states, including New Jersey and New York, insur-
ance policies issued in New York, and no New Jersey or New York parties), the court held again
that the law of the respective site-states applied. Because New York was one of the site-states,
New York law would govern, but only with regard to the site situated therein and not because
of New York’s 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 at 642.
81. Id. at 644.
82. Id.
83. See id. at 642: “[I]‌f New York law were applied to determine coverage at a waste site in Indiana and
that state’s 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 Jersey’s 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].”
Finally, in HM Holdings (which did not involve New Jersey or New York sites but did
involve insurance policies delivered in New York to an insured who at that time was headquar-
tered in New York), the court held that the law of the site-states should govern the interpreta-
tion 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 Jersey’s 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 New York but not New Jersey. By the time of the events sur-
rounding 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 Jersey’s 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 New York’s,
it should yield to New Jersey’s unless the insurance companies are domestic companies of the
waste sites.”87
The excerpt last quoted leaves no doubt that New Jersey’s endorsement of the site-specific
approach is subject to exceptions designed to protect New Jersey’s interests. According to
Pfizer, these interests are: “[1.] protection of the regulatory process in New Jersey, [2.] protec-
tion 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 New York were reversed, then “we are certain that New Jersey’s 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 at 648.
86. See id. at 648–49 (“Because the purpose to be served by New Jersey’s 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 Jersey’s 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 New York’s law would interfere with the public policy
reflected in New Jersey’s law without a corresponding benefit to New York domestic concerns. The lead
insurance companies are not New York based companies. The ‘wholly domestic’ concerns of New York
are not advanced when its late-notice doctrine is applied to parties not resident in New York, concerning
waste sites not in New York.”).
87. Id. at 649.
88. Pfizer, 712 A.2d at 644.
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 manufac-
turer’s 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 single state.
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 insur-
ance for environmental pollution. The NL Industries court confined the site-specific approach
to pollution cases and declined to extend it to products liability cases.
NL Industries involved an action for a declaratory judgment that an insurance policy
(issued in New York by a New York insurer to a New Jersey corporation that had its principal
place of business in New York) provided coverage for lead exposure caused by the insured’s
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 New York law applied. The court found that the reasons for
adopting the site-specific approach in Gilbert Spruance were not present in products liabil-
ity coverage actions. Inter alia, a state’s interest in determining coverage for product liability
actions is “more amorphous and therefore less compelling than its interests in environmen-
tal 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 state’s law, the law of the place of contract will apply.”91
In a similar case, Certain Underwriters at Lloyd’s, London v. Foster Wheeler Corp.,92 a
New York 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
conflicts law).
90. Id. at 322.
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 Nat’l Ins. Co.,
44 F.3d 1484 (10th Cir. 1995). See also Viacom, Inc. v. Transit Cas. Co., 138 S.W.3d 723 (Mo. 2004) (apply-
ing 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).
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 New York law. The Appellate Division reversed,
holding that New Jersey law should govern.
Noting that New York’s 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 scope”93 and their locations could not have been predicted at the time the poli-
cies were issued. To remedy this problem, the court decided to supplant the center-of-gravity
approach with a direct consideration of the implicated state interests in:
(1) Regulating conduct with respect to insured risks within the state’s borders; (2) assuring that
the state’s domiciliaries are fairly treated by their insurers; (3) assuring that insurance is avail-
able to the state’s domiciliaries from companies located both within and without the state; and
(4) regulating the conduct of insurance companies doing business within the state’s 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 insured’s
domicile, notwithstanding that certain other states (e.g., the states of the insurer’s 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 insured’s home-state “should be regarded as a
proxy for the principal location of the insured risk,”96 and the application of that state’s 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 expecta-
tions;”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 poli-
cies will be deemed governed by the laws of different states . . . mak[ing] it more likely that con-
sistent and uniform results will be reached in different cases.98
93. Foster Wheeler, 822 N.Y.S.2d at 33.

94. Id. at 34.
95. Id.
96. Id. at 35.
97. Id. at 34–35.
98. Id. at 35.
In Liggett Group Inc. v. Affiliated FM Insurance Co.,99 the insured Liggett, a tobacco com-
pany, sued its 33 insurers seeking a declaratory judgment that the policies they issued to plain-
tiff 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
28 years, 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 liti-
gants.”102 Indeed, the parties themselves agreed that “in the interest of economy and ease of appli-
cation,”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 New York contacts, the court
concluded that North Carolina had a more significant relationship and its law should govern.104
C. INSURABILITY OF PUNITIVE 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 New York, New Jersey, and some
other states. The 33 insurers had their principal place of business in many different states.
101. Liggett Group, 2001 WL 589041 at *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 insured’s 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 negotia-
tions 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 inter-
pretation of policy language may differ among states, this Court finds that any potential conflict is inconse-
quential because the states share the same general policy regarding insurance coverage disputes.” Id. at *7.
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 mis-
conduct that evokes punitive damages by not allowing the insured to pass on the pain of puni-
tive damages to the insurer.
A common strategy in these cases is the use of declaratory judgment actions, both offen-
sively 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 usu-
ally 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 state’s own position on the issue of the insurability of punitive
damages weighs heavily in choosing between these two options.
The preference for the forum’s position is more obvious in cases decided under the ordre
public exception in states that follow the traditional system. A good 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 insured’s 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 Kansas’s 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 Restatement’s ‘most significant relation-
ship’ 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 also id.:
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 obli-
gated 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 ambigu-
ity of the policy language and construe the coverage against the insurer.
106. 777 P.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 insured’s com-
plaint 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).
Kansas exceeds Delaware’s 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 cul-
prit 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 car’s 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 con-
tract.”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 Indiana’s 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. A California 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, 777 P.2d at 1267.

109. Id. at 1259.
110. 938 P.2d 1281 (Kan. 1997), cert. denied, 522 U.S. 951 (1997).
111. 938 P.2d at 1285–86.
112. Id. at 1286.
113. 34 P.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 pro-
vided 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).
of malicious prosecution was contrary to Washington’s 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 Washington’s 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 appli-
cation 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 Washington law.
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 signifi-
cant 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 insured’s 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 pur-
chased the policy there. Although the court acknowledged Colorado’s policy against insuring
punitive damages, it concluded that Colorado’s 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, 34 P.3d at 814.

116. Id. at 816.
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).
In Zurich Insurance Co. v. Shearson Lehman Hutton, Inc.,119 the insurer, Zurich,120 brought
an action in New York seeking a declaratory judgment that it did not have a duty to indem-
nify its insured, Shearson,121 for punitive damages that a Texas judgment awarded against
it. Texas law permitted such an indemnification, but New York law prohibited it. The insur-
ance 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], New York public policy would still apply.”126 Noting “[t]he strength
of New York’s 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 New York
court to disregard our State’s 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
New York 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 puni-
tive damages on Shearson for slanderous statements made by two of its employees. Those statements
would have supported the award of punitive damages under New York slander law.
123. 642 N.E.2d at 1070.
124. See id. at 1068–69 (“Shearson has its principal place of business in New York, 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 New York’s 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. at 1070.
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 New York, which was the center of Shearson’s financial interests.
126. 642 N.E.2d at 1069.
127. Id.
for punitive damage awards, when New York choice of law principles dictate the application of
that policy.128
Stonewall Surplus Lines Insurance Co. v. Johnson Controls, Inc.129 was decided under
California’s 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 $6.5 million in punitive damages to a California plain-
tiff injured there by a battery that JC manufactured in California and sold to plaintiff in that
state. JC’s 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 sepa-
rate risks located in any number of states where the corporation does business.”130 This “multi-
ple risk approach,” as the court called it, provided a good means for “measuring the competing
interests”131 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 JC’s liability vis-à-vis a third party, but also to JC’s 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 New York’s policy of precluding indemnification for punitive
damages was
[a]‌dmittedly . . . more problematic in cases where the liability for punitive damages is solely vicari-
ous. . . . [and that, as in many other states,] the Texas courts have . . . tak[en] the view that cover-
age 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 devi-
ated from this policy choice.
Id. In United States Gypsum Co. v. Admiral Insurance Co., 643 N.E.2d 1226 (Ill. App. 1994), reh’g 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 defen-
dants 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 Illinois’s 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. at 720.
131. Id.
132. Id.
133. Id.
contrast, failure to apply California law would “severely impair California’s interests” in deter-
ring 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 presump-
tion 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 Section 6.
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 New York domiciliary for
$10 million. When the insured died four years later, the insurer refused to pay the proceeds of
the policy to the beneficiary’s 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 New York 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 can-
cellation for fraud. Neither party argued for the application of Texas law, but the court noted
that it was essentially identical to New York law. The court rejected the insurer’s 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 con-
tracts. The court found that the insurer was unable to rebut the presumption of Section 192 in
favor of the law of the insured’s home-state at the time the policy was issued, New York, 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 insured’s domicile at the time the insurance policy was issued. After
extensive discussion, the court concluded that the presumption was rebutted because the plain-
tiffs 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 subor-
dinated to the interest of enforcing contracts.
135. 442 S.W.3d 589 (Tex. App. 2014), petition for review filed (Oct. 13, 2014).
136. A STOLI (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 up front.
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 of Texas.
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 state’s law is more favorable to the insured than the first. From a constitu-
tional perspective, the Supreme Court’s 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 forum’s choice-of-law approach or statute, and most courts tend to answer it affirmatively.
When the second state’s 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
forum’s pro-insurer law.
As noted earlier,139 many states have enacted statutes mandating the application of the
forum state’s 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 man-
date 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, 13 years later, moved to South Carolina, continuing to pay
premiums from there until his death, 6 years later. Under a clause in the policy, the insured’s
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 28–30.
139. See supra 493–94.
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,
28–32 (2000).
142. 377 F. Supp. 2d 527 (D.S.C. 2005).
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 Tennessee’s tra-
ditional 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 pur-
pose 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 wife’s 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 con-
flicts, 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 state’s policy of protecting
its domiciliaries. As the court put it, “West Virginia’s favoritism toward laws that align with its
own public policy trumps any comity to Virginia’s 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 1115925 at *5.
147. Id. at *6.
148. 744 F.3d 901 (4th Cir. 2014).
149. Id. at 910.
150. 184 F. Supp. 2d 1301 (S.D. Fla. 2002).
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 insurer’s 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 Florida’s 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 insurer’s) expec-
tations. The court overlooked the fact that almost 15 years 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 of Limitation
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 court’s 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 forum’s limitation
period does not necessarily mean that the plaintiff will win on the issue of time. Occasionally,
the converse is true—the fact that the suit is filed after the expiration of the forum’s 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 obligee’s
1. Basic bibliography for the topics of this chapter includes: Hay, Borchers & Symeonides, Conflict of
Laws 152–62; Felix & Whitten, American Conflicts 234–47; Weintraub, Commentary 66–82; 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 Law—Shopping for a Statute of Limitation—Sun 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
right to a judicial remedy, and thereby “liberates” the obligor from having to perform the obli-
gation. 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 this rule.
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 char-
acterization, 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 schol-
ars, 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 as 1839.6
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 main-
tained though the action is not barred in the state where the cause of action arose.
§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. See id.
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 forum’s statute
of limitation or, in conflicts cases, the statute chosen by the forum’s choice-of-law rules. See supra 37–42.
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 962–65 (3d ed. 1846).
6. See M’Elmoyle v. Cohen, 38 U.S. (13 Pet.) 312 (1839).
7. Restatement (First) Conflict of Laws, §§ 603–604 . 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 forum’s 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 New York 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 Hampshire’s only connection with the
case was that 1 percent of the magazine’s sales occurred in that state. Under the “single publica-
tion rule,” the plaintiff could recover in one action damages for the injuries she suffered in all
states.9 Characterizing New Hampshire’s 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 I—415, at § 33, according to which the state of injury has jurisdic-
tion only with regard to the injury that occurred in that state.
10. Keeton, 549 A.2d at 1192.
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 dis-
tributed, 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]
it would reach the same result under Leflar’s choice-influencing considerations, which is New
Hampshire’s 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 against—and most efforts to
improve—the 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 forum’s 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 1194–98. In an eloquent dissent, Justice David Souter (later of the U.S.
Supreme Court) refuted all of the majority’s 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 bor-
rowing statute.
19. The only exception is the Oklahoma borrowing statute, which provides that “[t]‌he period of limita-
tion 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., 212 P.3d 1168 (Okla. 2009); Masquat v. DaimlerChrysler Corp., 195 P.3d 48 (Okla.
2008), reh’g 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), reh’g and reh’g en banc denied (Apr. 26, 2010), cert. denied 562 U.S. 895 (2010); Combs v. Int’l
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,
As noted earlier, these statutes differ in their specifics. For example, although the borrow-
ing 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 per-
sonal injury actions, and Virginia’s and West Virginia’s 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 stat-
ute 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 Mississippi’s 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 528–30; Jenkins v. Panama Canal Ry. Co.,
208 P.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., 195 P.3d 48 (Okla.
2008), reh’g 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 532–33.
22. See Chang v. Baxter Healthcare Corp., 599 F.3d 728 (7th Cir. 2010), reh’g and reh’g 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 Paw’s 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).
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 for-
eign limitation period that is shorter than the forum’s, if the foreign period is conceived or per-
ceived 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 pro-
viding 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 victim’s 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. CURRENT STATUS
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 fol-
low 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
New York 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 York’s 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).
27. See Restatement (First) § 605.
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).
Table 35. States Following the Traditional Approach

in Limitation Conflicts
Traditional I Traditional II
Alabama Alaska
Georgia Connecticut
Kansas Dist. of Columbia
Maryland Hawaii
New Mexico Illinois
North Carolina Kentucky
Oklahoma Maine
South Carolina Mississippi
Tennessee Missouri
Virginia Nevada
Wyoming New Hampshire
New York
Pennsylvania
South Dakota
Texas
Utah
Vermont
11 17
of limitation. The plaintiff argued that, because the contract was negotiated, executed, sub-
stantially performed, and breached in New York, that state’s law would be applicable to the
merits of the action under New York’s “center of gravity” approach.32 Consequently, his action
“accrued” in New York rather than elsewhere, thus rendering New York’s borrowing statute
(CPLR 202) inapplicable.
The Court of Appeals rejected plaintiff ’s argument by stating that “there is a significant dif-
ference 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 New York 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 inap-
plicable 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 supra162–63.
33. Global, 715 N.E.2d at 484.
34. Id.
35. Id. at 485.
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 Wisconsin’s bor-
rowing 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 Kentucky’s highest court would continue to interpret that state’s 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 exhortations”44 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 485–86. 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 eco-
nomic 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 New York’s borrowing statute.
37. 576 N.W.2d 46 (Wis. 1998).
38. Id. at 53–54.
39. Id. at 53 (quotation marks and citation omitted).
40. 354 F.3d 568 (6th Cir. 2004).
41. Combs, 354 F.3d at 578.
42. Id.
43. Id.
44. Id. at 589.
45. Id.
46. Id.
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 inter-
preted in a territorialist way.
I I I . M O D E R N A PPR OA CHES
A. THE NEW UNIFORM ACT

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 lim-
itation 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 forum’s 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 forum’s sense of fairness to defendants, even if the particular defendant is not
a domiciliary of the forum state.
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 New York, although the final event necessary for the cause of action occurred in
New York, Kentucky shows disrespect for New York’s territoriality in derogation of comity principles that
the Kentucky Supreme Court may value… . By failing to recognize New York’s decision, Kentucky would
effectively undermine a quasi-substantive component of New York law—not something we should lightly
assume the Kentucky Supreme Court would choose to do.”).
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 Conflicts–Limitations Act,
35 Mercer L. Rev. 461 (1983–1984).
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
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
Oregon’s two-year statute of limitation, but not under California’s one-year limitation. The
plaintiffs charged the defendant driver with “negligen[ce] in failing to keep a proper look-
out, 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, California’s one-year statute of limita-
tion was applicable, barring the action.
The dissenting opinion strongly disputed the majority’s 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 analy-
sis. 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 cor-
rect 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 this case.
To the extent that the dissent’s analysis focused on the conflicting limitation laws rather
than on the potentially conflicting tort laws, the analysis was eminently appropriate. The prob-
lem 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, 275 P.3d 992 (Or.
Ct. App. 2012), review denied, 352 Or. 378 (Sept. 13, 2012); Unifund CCR Partners v. Deboer, 277 P.3d 562
(Or. Ct. App. 2012), review denied, 352 Or. 378 (Sept. 13, 2012); Unifund CCR Partners v. Sunde, 260 P.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. 880 P.2d 464 (Or. Ct. App. 1994).
54. Id. at 465.
55. Id. at 465–566 (“Oregon motor vehicle laws do not define or regulate the operation of motor vehicles
in California.”).
analysis of the statute-of-limitation conflict, as opposed to the underlying substantive-law con-

flict.56 This is one of the Act’s major flaws.
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
Oregon’s 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 Oregon’s two-year limitation but before the expiration of
Washington’s 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 com-
pared 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 forum’s 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. 875 P.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. 885 P.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. 885 P.2d at 849.
62. Id.
63. Id. at 850.
64. Id. (quoting Rice, supra). Without entirely avoiding such an analysis, the court concluded that
“Washington’s 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 Act § 4.
66. 794 N.W.2d 746 (N.D. 2011).
67. The plaintiffs were domiciled in states other than North Dakota, and their claims against manufactur-
ers of asbestos-containing products were barred by the statutes of limitations of all other states. The plain-
tiffs sued in North Dakota, seeking to take advantage of that state’s six-year statute of limitation, which
v. Guys, Inc.,68 the court found this part of the escape clause inapplicable to a conflict between
Minnesota’s six-year statute of limitation and Delaware’s three-year statute. Calling it an “unfair-
ness 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. A debt collector as assignee of a Delaware credit
card company sued a Washington debtor in Washington. The action would be barred by Delaware’s
three-year statute of limitation, but not by Washington’s 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 indefi-
nite 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 Washington’s six-year statute,
under which the action was timely. In CACV of Colorado, LLC v. Steven,72 which involved essen-
tially identical facts, the court reached the same result and explained why the escape was applicable:
[T]he difference between Oregon’s limitation period and Delaware’s limitation period—which
could run indefinitely because defendant may never become subject to service of process in
Delaware—is indisputably substantial. Furthermore, the possibility that Delaware’s limitation
period for plaintiff ’s claim could be indefinitely tolled indisputably imposes an unfair burden on
defendant in defending against the claim—viz., 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 substan-
tive 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 conflicts law).
69. Id. at 1126.
70. Id.
71. 260 P.3d 915 (Wash. Ct. App. 2011).
72. 274 P.3d 859 (Or. Ct. App. 2012), review denied, 352 Or. 377 (Sept. 13, 2012).
73. CACV, 274 P.3d at 86.
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 tradi-
tional 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 con-
flicts. 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 limi-
tation 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 Jersey’s 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 inter-
mediate court cases continue to use a Heavner-type analysis without relying on the Restatement (Second).
See McHale v. Kelly, 527 Fed. App’x 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), reh’g denied, (June 22, 2006).
77. See, e.g., Bin-Jiang Tao v. Citibank, N.A., 445 Fed.App’x. 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. Int’l 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.,
225 P.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.App’x. 822 (6th Cir.
2011) (decided under Michigan’s 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).
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.
A New Jersey-based corporation had manufactured the machine 13 years earlier in New Jersey.
The action was timely under New Jersey’s two-year statute of limitation, but barred by Georgia’s
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 elimi-
nate 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 victim’s 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 state’s gen-
eral policy “of fair compensation for injured domiciliaries.”85 Although Georgia had sub-
ordinated 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 Georgia’s interest in compensat-
ing 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 allow-
ing 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, con-
versely, 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 into the stream
of commerce from [New Jersey],”90 New Jersey had a “strong interest in encouraging the manu-
facture and distribution of safe products for the public and, conversely, in deterring the manu-
facture 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 114–15.
85. Id. at 115.
86. Id.
87. Id. at 113.
88. Id. at 110.
89. Gantes, 679 A.2d at 111.
90. Id.
91. Id. at 111–12.
court’s conclusion that the possibility of unduly discouraging manufacturing in New Jersey
outweighed this interest in deterrence.92 The court also dismissed the forum-shopping argu-
ment because, as shown by the defendant’s 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
Island’s better-law approach, the court applied the forum’s 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 Massachusetts’s statute of
limitation but was timely under Rhode Island’s 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 reason-
ing, saying that it had nothing to add, except to express “particular agreement” with the lower
court’s analysis of the “better law” factor.97
In McCann v. Foster Wheeler LLC.,98 a case decided under California’s comparative impair-
ment approach, the court refused to apply California’s statute of limitation, under which the
action would have been timely. Instead, the court applied Oklahoma’s 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 New York company, had designed and manufactured the boiler in New York.
At the time of the exposure, the plaintiff was domiciled in Oklahoma, but in 1965 he left
92. See id. at 112.

93. See id. at 113 (“[T]‌his State’s interest against forum shopping will not be compromised by the appli-
cation of New Jersey’s statute of limitations in the circumstances of this litigation. . . . In this case, plain-
tiff does not seek to use New Jersey’s 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 manu-
factured in and then shipped from this State by the defendant-manufacturer.”). Justice Garibaldi filed a
strong dissent, charging that “[t]he majority’s 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 527–28 (quoting the lower court).
96. Id. at 528.
97. Id. at 534–35.
98. 225 P.3d 516 (Cal. 2010).
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 rea-
soned 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”;99 and
(2) in “being able to assure individuals and commercial entities operating within its ter-
ritory that applicable limitations on liability set forth in the jurisdiction’s 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 defendant had
No way of knowing or controlling where a potential plaintiff may move in the future, subject-
ing 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 Oklahoma’s interest in establish-
ing a reliable rule of law governing a business’s 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 California’s interest” because: (1) “the defendant’s 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
concluded that:
When the law of [an]other state limits or denies liability for the conduct engaged in by the defen-
dant in its territory, that state’s interest is predominant, and California’s legitimate interest in
providing a remedy for, or in facilitating recovery by, a current California resident properly must
be subordinated because of this state’s diminished authority over activity that occurs in another
state.103
99. Id. at 530.

100. Id. at 534 (internal citations omitted).
101. Id. at 534–35.
102. Id. at 535.
103. Id. at 536.
Regardless of whether one agrees or disagrees with the outcome,104 it is clear that the court’s
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 state’s law favored the plaintiff and the other state’s law
favored the defendant.
C. THE NEW REVISION OF THE

RESTATEMENT (SECOND)
1. The Text
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 Heavner—it instructs the court to choose the law applicable to the limita-
tions 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 (Pattern 2).
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 ten-
dency 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, 325–30 (2011).
2. Representative Cases
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 domi-
ciliary 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,
960 P.2d 628 (Ariz. 1998).
108. See Celotex Corp. v. Meehan, 523 So. 2d 141 (Fla. 1988); Fulton Cty. Adm’r v. Sullivan, 753 So. 2d
549 (Fla. 1999).
109. See Dillon v. Dillon, 886 P.2d 777 (Idaho 1994).
110. See Washburn v. Soper, 319 F.3d 338 (8th Cir. 2003), discussed infra 541–42 (predicting that the
Iowa Supreme Court would adopt revised § 142 of the Restatement (Second), given the latter court’s con-
sistent reliance on the Restatement in other conflicts); Great Rivers Coop. of Se. Iowa, Inc. v. Farmland
Indus., Inc., 934 F. Supp. 302 (S.D. Iowa 1996).
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. O’Brien, 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 Int’l, 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 Arizona’s two-year statute of limitations, but not under California’s 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 acci-
dent, and the injury all occurred in Arizona.” Id. at 19 (quoting Section 142(2)(b), emphasis added). The
court found that Arizona’s 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, Arizona’s 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 inter-
ests that would be served by entertaining the claim.” Id.
115. 960 P.2d 628 (Ariz. 1998).
driven by the Tennessee driver. The Tennessee driver was not subject to the court’s jurisdiction
and, as explained below, this was a significant factor in the court’s decision. The action was
barred by Tennessee’s one-year statute of limitation, but not by Arizona’s 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 par-
ticular, the court found that the lower court erred in giving insufficient weight to the pre-
sumptive 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 state’s relationship with the
case was not more significant than Arizona’s. The court found that Arizona’s longer statute of lim-
itation 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 Arizona’s interest in the case was “at least as substantial and as
significant as Tennessee’s.”118 Consequently, neither one of the Restatement’s exceptions to the pre-
sumptive 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 Arizona’s statute of limitations was both reasonable and “entirely
consistent with the choice-of-law factors enumerated in Restatement §6”120 in that it “protects the
justified expectations of the parties”121 and promotes “the basic policies underlying tort law—to
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 previ-
ous 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 California’s statute of limitation.

117. 960 P.2d, at 631–32.
118. Id. at 632.
119. See supra 525–26.
120. 960 P.2d at 633.
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 at 343.
“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 defen-
dant 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 domi-
ciliaries 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 Brunswick’s 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 embod-
ies, New Brunswick had “no discernible interest in setting the time by which two nonresi-
dents 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 Texas’s 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 stat-
ute 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 Iowa’s longer statute
permitting the action.
127. 957 N.E.2d 726 (Mass. App. Ct. 2011).
128. Id. at 729.
129. Id. at 728–29.
130. Id. at 729.
131. Id.
132. 808 N.E.2d 290 (Mass. 2004).
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 Massachusetts’s “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 Texas’s statute
of limitation.
Of the four cases discussed above:
(1) Two cases (DeLoach and Andersen) applied the forum’s 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 forum’s longer statute of limita-
tions. 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 state’s limitation law
favored its own domiciliary.137 The court’s refusal to apply the forum’s 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 state’s limitations law favored the domiciliary of the other state.138 DeLoach is note-
worthy, not only because it is a correct and intelligent application of Section 142, but also
because it provides a credible articulation of the forum’s 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 forum’s statute negates any procedural
133. Id. at 293.

134. Id. at 293–94.
135. Restatement (Second) § 142 cmt. 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 in Texas.
137. See supra 205–08.
138. See id.
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 forum’s 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 Currie’s assumptions, suggest the lack of an affirmative inter-
est in providing a forum, but it does not generate an interest in denying a forum that is oth-
erwise available to forum domiciliaries. Thus, the plaintiff ’s “foreignness” should not be the
basis of the court’s decision in cases of this pattern. Regarding the defendants, the fact that
the forum’s 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 state’s
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 charac-
terizations 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 pro-
vides in pertinent part:
(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 mainte-
nance 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 forum’s 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, 530–48 (1994).
the passage of time, is governed by the law of the state that, under the Code’s 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 circum-
stances, 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 mainte-
nance of the action is “justified by compelling considerations of remedial justice aris-
ing 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 codifica-
tion. 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 Odeco’s office in Scotland. The action
was filed in Louisiana after the accrual of Louisiana’s 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 find-
ing 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
Reporter’s 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 domi-
ciled 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 consider-
ations 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 Louisiana’s 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 Rico’s Conflicts Law: A Preview, 28 Colum. J. Transnat’l L. 413, 433–47
(1990).
141. 615 So. 2d 407 (La. Ct. App. 1993), writ denied, 618 So. 2d 412 (La. 1993).
142. Reporter’s 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 at 410.
144. 671 F.3d 539 (5th Cir. 2012) (decided under Louisiana conflicts law).
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 dis-
cussed whether maintenance of this action in Louisiana was “warranted by compelling consid-
erations of remedial justice” under Article 3549. Relying on the Reporter’s 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 avail-
able 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 lia-
bility 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 Brazil’s
20-year prescriptive period. The court correctly assumed that Brazilian law would be appli-
cable 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 consider-
ations 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
15 months 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 (distin-
guishing 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).
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 limita-
tion 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.
Table 36. Approaches to Limitation Conflicts

Traditional I Traditional II Restatement 2nd Heavner analysis Uniform Act
Alabama Alaska Arizona Arkansas Colorado
Georgia Connecticut Florida California Minnesota
Kansas Dis. Columbia Idaho Delaware Montana
Maryland Hawaii Iowa Indiana Nebraska
New Mexico Illinois Massachusetts Michigan North Dakota
No. Carolina Kentucky Ohio New Jersey Oregon
Oklahoma Maine West Virginia Rhode Island Washington
So. Carolina Mississippi Wisconsin
Tennessee Missouri
Virginia Nevada
Wyoming New Hampshire
New York
Pennsylvania
So. Dakota
Texas
Utah
Vermont
11 17 7 8 7
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 state’s 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 contract-
ing parties may choose the statute of limitations of a state other than the forum.
149. The table does not list Louisiana, which follows a hybrid approach combining elements from the
Restatement (Second) and the Uniform Act. See supra 544–46.
150. See supra 400–05.
151. See supra 364–65.
However, two subsequent developments have given birth to this question. The first devel-
opment, 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 develop-
ment, described in this chapter, is the gradual softening, and in almost half of the states aban-
donment, 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 state’s statute of limitations.153
Recently, however, several cases decided in states that have abandoned the procedural char-
acterization of statutes of limitations have taken the position that a choice-of-law clause may
include the chosen state’s 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
state’s statute of limitations.154
This development can be problematic. Whether one views statutes of limitations as proce-
dural 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 allow-
ing litigation over claims that are too old under the forum’s 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
A contains 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 Court’s interpretation of the same clauses, are necessary for applying the forum’s sub-
stantive law to the merits of the case.156
152. See supra 365–66.

153. See 400–05, supra.
154. See id.
155. 486 U.S. 717 (1988).
156. See supra 27–28.
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]‌State’s interest in regulat-
ing 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 forum’s statute barred the action, this would have been a perfectly plausible
conclusion. However, in Wortman the forum’s statute allowed the action, that is, it did not con-
sider the claim to be “too stale.” Consequently, that statute’s application would increase rather
than decrease the forum courts’ “work load.” A state that adopts a longer limitation period sub-
ordinates 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 applica-
tion of the forum’s longer statute of limitation imposes an unfair burden on the defendant,
which in turn depends on the defendant’s relation with the forum state. Justice Scalia’s 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 Wortman’s reasoning, what is clear is that its holding sim-
ply means that the forum state may apply its statute of limitations, not that it must.162 Also,
Wortman does not affect the Court’s 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 fed-
eral 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
forum’s 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. at 725.

158. Id. at 728.
159. Id. at 729.
160. Id. at 730.
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 defendant’s plea to adopt Guaranty
Trust’s substantive characterization.
164. See supra 38–42.
165. 494 U.S. 516 (1990).
Albert Ferens, a domiciliary of Pennsylvania, was injured in that state by a John Deere com-
bine 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 defendant’s 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 Mississippi’s limita-
tion period and held that the action was barred under Pennsylvania’s two-year statute of limi-
tations. The Third Circuit Court of Appeals affirmed, finding that “Mississippi’s 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 Court’s 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 trans-
feree 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 Pennsylvania’s 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. at 531.
174. Id.
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 too—to
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 system’s deficiencies does not lie in the Court’s 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 Mississippi’s 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 Court’s persistent refusal to apply Mississippi’s bor-
rowing 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 simplis-
tic 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 expo-
sure 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 antici-
patory 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. at 525.
176. Id. at 537 (Scalia, J., dissenting).
177. John Deere Co., 494 U.S. at 536.
178. See supra 527.
179. Wortman, 486 U.S. at 736 (1988) (Brennan, J., concurring).
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 bargain-
ing power of insurers. In Brennan’s words,
The statute of limitations a State enacts represents a balance between, on the one hand, its sub-
stantive 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 compli-
cated 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 appli-
cation 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 inti-
mately 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 aban-
doned 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 basic rule.
Although reasonable people might disagree on where exactly to draw the lines of compro-
mise, 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 lex fori;
(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 citi-
zenship 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 compe-
tence 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 614–58,
618–789; Felix & Whitten, American Conflicts 539-608; Weintraub, Commentary 333–93.
2. 1 U.S.C.A. § 7 (1996).
553
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 uncon-
stitutional 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
Court’s 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 invol-
untary, 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 significant ways.
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 party’s pre-
marital 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 stated in §6.
(2) A marriage which satisfies the requirements of the state where the marriage was con-
tracted will everywhere be recognized as valid unless it violates the strong public pol-
icy 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 560–61.
4. 388 U.S. 1 (1967).
5. ___ U.S. ___, 135 S. Ct. 2584 (2015).
6. See Restatement (First) §§121–122, 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 state—the 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 circum-
stances, 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 forum state.
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 Restatement’s 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), reh’g 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 & Firemen’s 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), reh’g denied (Feb. 19, 2010) (Mexican concubinage); Dion v. Rieser, 285 P.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), reh’g 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 15 years in Wisconsin,
which does not recognize such marriages); Donlann v. Maggurn, 55 P.3d 74 (Ariz. Ct. App. 2002), rev.
denied, (Feb. 11, 2003) (holding that a Mexican marriage that was formally invalid under Mexican law
Thus, if read literally, the Restatement (Second) adopts an alternative-reference type “rule
of validation”—a marriage is valid if it would be valid under the law of:
(a) A state that had the most significant relationship, either at the time of marriage or at a
later time;
(b) A state 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 Restatement’s clear preference for validation reflects the old policy of favor matrimo-
nii, which, at the time of the Restatement’s drafting, was entrenched in the domestic law of all
states. At the multistate level, this policy is reinforced by the desideratum of avoiding “limp-
ing 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 chil-
dren 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 Emp’t
Sers., 801 A.2d 987 (D.C. 2002) (similar scenario involving a Nicaraguan marriage, but holding the mar-
riage invalid; thus wife did not lose her eligibility for worker’s 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
New Yorkers who did not obtain a New Jersey marriage license as required by the law of New Jersey but
not New York); Rivera v. Rivera, 243 P.3d 1148 (N.M. Ct. App. 2010), cert. denied, 243 P.3d 1146 (N.M.
2010); McPeek v. McCardle, 888 N.E.2d 171 (Ind. 2008) (upholding an Ohio marriage of Indiana domi-
ciliaries 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 mar-
riage 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 debat-
able 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)).
effects or “incidents” on children born of the marriage, such as legitimacy, filiation, and pre-
sumed paternity, and their rights to receive support and inheritance, or to sue for a parent’s
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 pre-
liminary or “incidental” question, whose answer may—or may not—determine 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 inci-
dents, 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 ben-
efits (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 pro-
vides 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 mar-
riage. 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 domes-
tic 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 forum’s 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 husband’s 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 forum’s 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. b–c. 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 Bir’s Estate, 188 P.2d 499 (Cal. Ct. App. 1948).
21. See, e.g., De George v. Am. Airlines, Inc., 338 F. App’x 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 purposes”—i.e., in order
to enable the man to obtain legal residence in the United States—was eligible to recover wrongful death
benefits arising from the man’s death, although U.S. immigration law considers “green card marriages” void).
Cf. Hudson Trail Outfitters v. D.C. Dept. of Emp’t 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 worker’s compensation benefits
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 mar-
ried 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. A divorce proceeding does not involve recognition of a marriage as an ongoing relation-
ship. 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 & Firemen’s 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 policeman’s widow who moved to Wyoming where she cohabited for 30 years 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. 253 P.3d 153 (Wyo. 2011).
23. Id. at 156–57.
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 et al. 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);
in 1999 of the first “civil union” law in the United States.25 In the fourth state, Massachusetts,
the effort to overturn the court’s ruling was unsuccessful, and as a result, Massachusetts became
the first state to allow marriages between persons of the same sex in 2004.
During the same period, more than 40 states enacted constitutional amendments or stat-
utes (known as “mini-DOMAs”), which restricted the right of marriage to persons of the oppo-
site 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 OF MARRIAGE ACT

(DOMA) AND ITS DEMISE
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)
provided that:
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 mar-
riage under the laws of such other State . . . or a right or claim arising from such relationship.28
1. Vertical DOMA
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). A civil union is a formalized legal relationship between two per-
sons 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 Vermont’s 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
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 acknowl-
edged 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 federal-
ism grounds, but the Court found it “unnecessary” to decide the case on those grounds because
“[t]‌he State’s power in defining the marital relation is of central relevance in this case quite
apart from principles of federalism.”33 A state’s 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 purpose—to 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 DOMA’s “unusual deviation from the usual tradition of recogniz-
ing 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
DOMA’s 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 2689–90.
32. Id. at 2692.
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 government’s 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. at 2692.
35. Windsor, 133 S. Ct. at 2692.
36. Id. at 2693.
37. Id.
38. Id. at 2694.
39. Id. at 2695–96.
the Court concluded, “DOMA [was] unconstitutional as a deprivation of the liberty of the per-
son protected by … the Fifth Amendment’s 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. Horizontal DOMA
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. at 2695.

41. Windsor, 133 S. Ct. at 2696.
43. Id. at 2709.
44. Id. at 2710.
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), New York (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.
The Court’s 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 under-
mined.”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 recog-
nize 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 horizon-
tal 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 author-
ity of the Full Faith and Credit clause in which Congress purported to release states from the
48. Obergefell, ___ U.S. ___, 135 S. Ct. at 2601.

49. Id. at 2600.
50. Id. at 2602. See also id. at 2601–02 (“[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 pre-
cious 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 Nation’s society.”).
51. Id. at 2604.
52. Id. at 2590–91.
53. Id. at 2607.
54. Obergefell, ___ U.S. ___, 135 S. Ct. at 2607.
55. Id.
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 Congress’s power to “cut back on
the measure of faith and credit required by a decision of this Court.”57 The plurality noted that
Congress’s 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 concluded that,
[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 to—and
did not—discuss Congress’s 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 deci-
sions have only historical value today, they deserve mention because of their didactic value.
For example, in Martinez v. County of Monroe,61 decided before the New York legislature
authorized same-sex marriages, the court held that a Canadian same-sex marriage between two
New Yorkers was entitled to recognition in New York. The court noted that New York 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 pro-
hibitions 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. § 1738A–B (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, New York 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 New York. See id.
category, but the marriage also did not fall within the second category because—unlike other
states—New York had not enacted a mini-DOMA or similar legislation “to prohibit the recog-
nition of same-sex marriages validly entered into outside of New York.”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 Maryland’s 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, espe-
cially 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 annul-
ling 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 York’s public policy
prevented the recognition of a Canadian same-sex marriage between two New Yorkers. 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 mar-
riage recognition rule.” Id. at 196–97. 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 New York law, including the right to adopt each other’s 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 omit-
ted). A civil 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 mainte-
nance, 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.
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 Arizona’s
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 pre-
mised on the notion that the marriage is not valid, but void.”69
Langan v. St. Vincent’s Hospital of New York,70 which was decided at a time New York 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 New York’s intermediate court reversed. The
court found that “theories of Full Faith and Credit and comity ha[d]‌no application”73 to this
case because Vermont had not accorded the status of spouses to civil-union partners. In autho-
rizing 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 tradi-
tional concepts of marriage.”74
A dissenting opinion noted that New York’s wrongful death statute was “not intended to
recompense the survivor” but rather “to make a culpable tortfeasor liable for fair and just com-
pensation to those who, by reason of their relationship to the decedent, suffer economic injury
as a result of the decedent’s death.”75 Hence, “preventing the plaintiff from asserting a wrongful
death claim [does not] promote the State’s 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 deter-
mine 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, New York domiciliaries, had lived together in New York for 15 years 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 New York accident and later died in defendant’s New York hospital.
72. See Langan v. St. Vincent’s Hosp. of New York, 765 N.Y.S.2d 411 (N.Y. Sup. Ct. 2003).
73. Langan, 802 N.Y.S.2d at 479.
74. Id.
75. Id. at 486.
76. Id. at 490. For a subsequent New York case to the same effect, see Funderburke v. N.Y.S. Dep’t 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) (uphold-
ing a local ordinance requiring recognition of same-sex marriages contracted in states or countries that
allow them).
Hennefeld v. Township of Montclair 77 is an example of how a willing court can “accommo-

date”78 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 domicili-
aries, 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
systèmes”).
79. The parties had lived together for 25 years, 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 100 percent 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 100 percent exemption, even if the veteran
had title to less than 100 percent of the house. In this case, the assessor allowed only a 50 percent exemp-
tion. The plaintiffs challenged this assessment in New Jersey’s Tax Court.
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? 55–56
(2000) (discussing rules from Belgium, China, Germany, Holland, Hungary, Italy, Switzerland, and the
former Yugoslavia). For other countries, see Symeonides, Codifying Choice of Law 269–71.
81. See Atherton v. Atherton, 181 U.S. 155 (1901).
82. 317 U.S. 287 (1942).
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 ques-
tions 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 incen-
tive 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 Court’s protesta-
tions 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 Court’s decision produced.86
The Court had another opportunity to separate the choice-of-law question from the juris-
dictional 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 consid-
erations 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 Frankfurter’s 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 over them.
84. See Williams I, 317 U.S. 287, 296.
85. See id. at 302–03.
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 inter-
est 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).
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 Hastie’s argument because in the meantime Mr. Alton
obtained a bilateral divorce in Connecticut, making the case moot.
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 draft-
ers, 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 spouse’s 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 lib-
eralizing 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. A state
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) § 285 cmt. 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 neces-
sarily 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).
either spouse but has in personam jurisdiction over both of them (“bilateral” divorce). In the
case of an ex parte divorce, the court’s 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 inci-
dents 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 jurisdic-
tional 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 prob-
lematic. 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 recog-
nition 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 Nat’l 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 714–24.
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
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 stan-
dards.100 A state that has issued a child support order consistently with the Act has continuing,
exclusive jurisdiction over the order as long as it remains the “child’s 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
child’s 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 excep-
tions: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 state law.
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 defen-
dant 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). A state is considered the “child’s 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 forum’s longer statute of limitations, see, e.g.,
Shelnut v. Dep’t of Human Servs., 9 So. 3d 359 (Miss. 2009), reh’g denied (June 4, 2009). For cases applying
the other state’s 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
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 federal Act.
B. CHILD CUSTODY

1. Interstate Cases
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 fed-
eral 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 pri-
mary jurisdiction in the child’s “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 federal Act.
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 father’s 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 dura-
tion 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 father’s obligation to pay support until child reached age 21 as
provided by the issuing state’s 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 state’s
law the father’s obligation had terminated when the child reached age of 18, New York could not extend
that obligation); Khaja v. Khan, 902 N.E.2d 857 (Ind. Ct. App. 2009), reh’g denied (May 7, 2009) (holding
that the law of the issuing state governed the father’s 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 state’s law governed the issue of the child’s 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 Mexico law).
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).
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 the forum.
2. International Cases
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 coun-
try “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 habitu-
ally 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 child’s 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 vio-
lates “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).
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
Chile’s Minors’ Law, a parent who has visitation rights also has an automatic ne exeat right,
namely a right to prevent the child’s unilateral removal from Chile. Without Mr. Abbott’s con-
sent or knowledge, Ms. Abbott removed the child to Texas. The question in Abbott was whether
the father’s ne exeat right was equivalent to “rights of custody” within the meaning of the
Convention. If yes, the child’s removal from Chile was “wrongful” within the meaning of the
Convention, and the child should be returned to Chile “forthwith.” If not, the child’s 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 father’s ne exeat right was equivalent to
“rights of custody” within the meaning of the Convention, thus according him the right to
demand the child’s return to Chile. The Court reasoned that this answer was most consistent
with the Convention’s 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 Convention’s purpose of deter-
ring 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
action—removal of the child—that the home country, through its custody order or other provi-
sion 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 Convention’s 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
child’s habitual residence was Scotland, and granted the mother’s 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 court’s 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. at 1996.

119. Id. (internal quotations omitted).
120. ___ U.S. ___, 133 S. Ct. 1017 (2013).
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 child’s habitual resi-
dence 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 father’s 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 child’s removal or retention was
“wrongful” under the Hague Convention and, in turn, determining the child’s “habitual resi-
dence.” The child’s 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 father’s request for guard-
ianship 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 peti-
tion 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
child’s 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 habit-
ually 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 chang-
ing social mores and a series of Supreme Court decisions in the mid-1970s that banned dis-
crimination against illegitimate children with regard to inheritance, support, and other rights.
121. On remand, the Eleventh Circuit affirmed the district court’s 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), reh’g denied (Aug. 29, 2013).
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 mother’s husband. In this case, the status of legitimacy includes the presump-
tion of paternity; the converse is not true—paternity does not necessarily entail legitimacy.
The Restatement (Second) provides that: (1) a child’s legitimacy is determined by the law of
the state 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 child’s 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 child’s mother filed a suit in Nevada seeking a judgment that her husband at the time
of the child’s birth was not the child’s 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 mother’s and the child’s domicile at the time of the lawsuit. The Nevada
court held that the California law was offensive to Nevada’s public policy and applied Nevada law.
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 child’s father on the child’s 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 Hermanson—the law of the state of
the child’s birth and the mother’s apparent domicile at the time (Oregon) did not impose a
presumption of paternity, but the law of the mother’s and child’s present domicile (Minnesota)
imposed such a presumption, which had become irrebuttable because of that state’s 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. 887 P.2d 1241 (Nev. 1994).
125. 248 P.3d 94 (Wash. Ct. App. 2011).
126. Id. at 62.
127. Id. at 66.
128. 1994 WL 149445 (Minn. Ct. App. Apr. 19, 1994) (unpublished).
concluded that the application of Minnesota law would further “the clear statutory purpose of
promoting legitimacy” and Minnesota’s 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 10 years. 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 respon-
sibility, 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 Berwick’s sperm and donated ova, which resulted in pregnancy
and the birth of a child. Before the birth, the parties obtained a California judgment of pater-
nity: (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 child’s 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, 336 P.3d 557 (Or. Ct. App. 2014), the child was born in Louisiana and,
under Louisiana law, the mother’s husband at the time was statutorily presumed to be the child’s 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 560–61.The court also rejected the defendant’s argu-
ment that the Louisiana divorce judgment was a determination of non-parentage, simply because it did not
include this child with the couple’s two children. The court affirmed a support order issued by the trial court.
133. 2014 WL 4493470 (Tex. App. Sept. 11, 2014).
134. Wagner argued that: (1) the forum’s 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 Texas’s 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 each other.
Interestingly, the Texas court did not mention DOMA or discuss either the constitutional-
ity or the strength of the public policy embodied in Texas’s prohibition of same-sex marriages.
Instead, the court directly rejected Berwick’s 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 Constitution’s 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 insemina-
tion. 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. A Kansas statute provided that “[t]‌he donor of semen pro-
vided … for use in artificial insemination of a woman other than the donor’s 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 appli-
cation 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 state’s 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. 169 P.3d 1025 (Kan. 2007).
138. Kan. Stat. Ann. § 38-1114(f) (2015).
139. In re M.K.H., 169 P.3d at 1031–32.
140. Id. at 1032.
141. Id.
142. Id.
In re Paternity and Custody of Baby Boy A143 was both a paternity and a maternity dis-
pute. It arose out of a gestational surrogacy agreement between a man from New York (the
plaintiff) and his niece (the defendant), who was then studying in Minnesota. The agree-
ment 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-à-vis the child, and acknowledge plaintiff as the
child’s 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 defen-
dant’s parental rights. The defendant appealed, arguing, inter alia, that the court should have
applied Minnesota law.
The Minnesota Court of Appeals affirmed the trial court, holding that Illinois law gov-
erned. 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. A statute void-
ing 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 individu-
als 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. A state 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 child’s
143. 2007 WL 4304448 (Minn. Ct. App. Dec. 11, 2007).

145. Id. §§ 289–290.
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.
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 New York court held that parties to a Dutch same-sex marriage were entitled to all
benefits of spouses under New York law, including the right to adopt each other’s children. The
court acknowledged that, because the marriage was fully recognized in New York and the child
was born during the marriage, the child “already ha[d]‌a recognized and protected child/par-
ent 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 child’s] 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 New York
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 New York 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 judg-
ment. 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., 266 P.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. at 682.
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 under-
stood 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 for-
mer, 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 1229–84; Felix & Whitten, American Conflicts 463-504;. Weintraub, Commentary 573–653;
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 Int’l & 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
Law—Comparative Notes, in Hay & Hoeflich (eds.), Property Law and Legal Education—Essays 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, 424–26 (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 Louisiana’s 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
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 revo-
lution 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 acquisi-
tion through adverse possession or prescription;9 the validity, effect, and enforcement of mort-
gages 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 con-
veyances 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 rationale”—the 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 legisla-
tures] 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 conclu-
sion 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 §§ 223–224.
6. See id. at §§ 225–231.
7. Restatement (Second) §§ 223–224.
8. See id. at § 225.
9. See id. at §§ 226–227.
10. See id. at §§ 228–230.
11. See id. at §§ 231–232.
12. See, e.g., id. at § 223.
13. Id. § 223, cmts. a, c–d.
14. J. Beale, A Treatise on the Conflict of Laws 938–39 (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 par-
ties 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-situs law.
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 immov-
able, 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 Singer’s
astute observations:
The idea that the situs rule promotes uniformity of result, predictability of outcome, and clar-
ity 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 con-
flicts between the rights of the parties who claim the protection of the law of different jurisdic-
tions. 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 applicable law.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 encum-
brances 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. at 160.
B. MOVABLES
1. In General
Despite its shortcomings, the situs rule has one undeniable advantage with regard to immov-
ables: 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 adher-
ence 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 justi-
fied 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 that thing.
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 con-
veyance.”21 A separate 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 deter-
mined 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. at § 245.
23. Id. at § 246.
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 afore-
mentioned 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 inter-
ests of the two situses and the circumstances of most cases.
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 debtor’s
residence for individual debtors, and the place of business for organizations.26
2. Stolen Movables: Antiquities or Artwork

a. The Problem and the Challenge
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 chattel’s removal from Missouri to Wyoming nor the owner’s 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. §§ 9-301–9-308 (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 gener-
ally available in a registration system “as a condition or result of the security interest’s 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. Int’l 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 Int’l L. 835 (1985). But see J. Darraby, Art,
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 reh’g, 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. Christie’s, 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), rev’d 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. Sotheby’s, 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 rev’d, 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), reh’g
denied, 551 F.2d 52 (5th Cir. 1977), rev’d 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. Schönenberger, The
Restitution of Cultural Assets (2009); I. Stamatoudi, Cultural Property Law and Restitution: A Commentary
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: A Reassessment 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. Int’l L. & Comm. 145 (2010); F. Francioni, Beyond State Sovereignty: The Protection of
Cultural Heritage as a Shared Interest of Humanity, 25 Mich. J. Int’l 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: A Comparative 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
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 liti-
gation is which country’s law should the court apply for determining the ownership of the prop-
erty 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 of law.
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. & Pol’y 39 (1995); L.M. Kaye, Art Wars: The Repatriation Battle, 31 N.Y.U.
J. Int’l 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. Pol’y &
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 Transnat’l 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 & Pol’y Int’l 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. Int’l L. 1 (1990); L.F. Pinkerton, Due Diligence in Fine Art Transactions, 22 Case W. Res. J. Int’l L. 1
(1990); E.A., Posner, The International Protection of Cultural Property: Some Skeptical Observations,
8 Chi. J. Int’l 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, A Combined Discovery
Rule and Demand and Refusal Rule for New York: The Need for Equitable Consistency in International
Cases of Recovery of Stolen Art and Cultural Property, 8 Tul. J. Int’l & 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. Transnat’l L. 1067,
1073 (2005); S. Symeonides, A Choice-of-Law Rule for Conflicts Involving Stolen Cultural Property, 38
Vand. J. Transnat’l 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, at id.
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.
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 buyer—Peg Goldberg, an Indiana
art dealer—promptly shipped the mosaics to Indiana and, a few weeks later, offered to sell them
to the Getty Museum in California for approximately $20 million. The museum’s 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 Goldberg’s
refusal, the Republic and the Church filed suit in federal district court in Indiana in March 1989.
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 sig-
nificant 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 deter-
mining 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 pro-
tect their cultural heritage. For a discussion of this case, see P. Farrell, Foreign Relations—Unrecognized
Foreign States—Title 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
Transnat’l 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 et al., Cultural Property—Recovery of Stolen Art Works—
Choice of Law—Recognition of Governments, 86 Am. J. Int’l 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. at 1397.
40. But see S. Symeonides, On the Side of the Angels: Choice of Law and Stolen Cultural Property, in
Private Law in the International Arena—Liber Amicorum Kurt Siehr, 649, 758–60 (J. Basedow et al. eds.,
2000) (arguing that Swiss law may not have been as favorable to the defendant as the court assumed).
41. Autocephalous, 717 F. Supp. at 1385.
The court ultimately held that Indiana law should govern because Indiana had the “most
significant contacts”42 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 paint-
ing. The claimant lost in both cases, the first under Massachusetts’s statute of limitation, and
42. Id. at 1394.

43. Id. at 1376, 1394.
44. See id. at 1386–87, 1388–91.
45. See id. at 1388–91. Moreover, the court held that, even if the statute of limitations commenced run-
ning 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 1387–88, 1391–93.
46. The court discussed pointedly and at length the suspicious circumstances under which the defen-
dant bought the mosaics. See id. at 1400–03. The court concluded by quoting from the testimony of an
expert witness: “The Court cannot improve on Dr. Vikan’s 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 seller’s title. See id. at 1403–04.
47. 623 F.3d 1 (1st Cir. 2010), cert. denied 562 U.S. 1271 (2011), reh’g denied ___ U.S. ___, 131 S. Ct. 2176
(2011) (decided under Massachusetts conflicts law).
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. App’x.
6 (2nd Cir. 2012), cert. denied ___U.S. ___, 133 S. Ct. 2038 (2013) (decided under New York conflicts
law). For discussion of this case, see, e.g., L. Frey, Bakalar v Vavra and the Art of Conflicts Analysis in
New York: Framing a Choice of Law Approach for Moveable Property, 112 Colum. L. Rev. 1055 (2012);
J. Hunn, Bridging the Swamp: Currie’s Interest Analysis as a Principled Solution to the Conflict of Laws
Problem in Bakalar and Other Stolen Art Cases, 50 Tex. Int’l 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
the second under Louisiana’s acquisitive prescription law. In the third case, Bakalar, the claim-
ant prevailed, at least temporarily, under New York’s demand-and-refusal rule.
The first two cases, Museum of Fine Arts (MFA) and Dunbar, involved the same claimant and
paintings by the same artist—the famous Austrian expressionist Oskar Kokoschka—which origi-
nally belonged to Dr. Reichel, an Austrian Jew. After the Nazi occupation of Austria, the Nazis took,
directly or indirectly, many of Dr. Reichel’s 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 New York 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. Reichel’s sole heir.
In the MFA case, the parties did not invoke the law of Austria or New York. 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 claim-
ant 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 10 years and thus acquired ownership of it under
Louisiana’s 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
New York 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 Kallir’s 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 Grunbaum’s 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 court’s 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 previ-
ous 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
Kallir’s New York gallery and then to the present possessor conveyed valid title.
The Second Circuit reversed, holding that under New York’s 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 New York. Under
New York 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 origi-
nal 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 owner’s replevin action
is not subject to a statute of limitation (or a discovery rule and due-diligence sub-rule, which
New York expressly rejected), but rather to the demand-and-refusal rule.54
In comparing the interests of New York to those of Switzerland, the court noted New York’s
“overarching concern that New York not become a marketplace for stolen goods and, in par-
ticular, for stolen artwork.”55 The court concluded that in this case New York had a “compel-
ling 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 New York 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 New York
art gallery.”57 While the application of New York law “would not have any adverse effect on …
any … Swiss citizen or Swiss interest,” it will have the beneficial effect of “caus[ing] New York
and Other Chattels, 45 Harv. Int’l L.J. 239 (2004); B. Demarsin, Let’s Not Talk about Terezín: Restitution
of Nazi Era Looted Art and the Tenuousness of Public International Law, 37 Brooklyn J. Int’l 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. Int’l 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: A Proposed
Solution to Disputes over Title, 31 N.Y.U. J. Int’l L. & Pol’y 15 (1998); T. O’Donnell, 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. Int’l L.
297 (2001); M.I. Turner, The Innocent Buyer of Art Looted during World War II, 32 Vand. J. Transnat’l 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 at 144.
52. Id. at 140.
53. Id. at 141 (internal quotation omitted).
54. See id. at 141–42.
55. Id. at 141.
56. Id. at 144.
57. Bakalar, 619 F.3d at 144.
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 New York.”59
The court also considered Austria’s interests and found them parallel to New York’s inter-
ests. The Austrian Nullification Act provided that Nazi-period forced-sales, like the one in this
case, were null and void. A companion 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 New York 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 the Conflit Mobile

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 trans-
action 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
New York). 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 court’s 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 last situs.
From a systemic perspective, the non-application of the law of the situs of origin is prob-
lematic 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. at 144–45

59. Id. at 145.
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. App’x. 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) inter-
ests 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;
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. A Proposed Rule
The proposed rule is as follows:
1. Except as otherwise provided by an applicable treaty, international or interstate agree-

ment, or statute,62 the rights of parties with regard to a corporeal thing of significant
cultural value (hereinafter “thing”)63 are determined as specified below.
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 specified below.
3. The owner’s 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. Transnat’l L. 927, 929 (2005).
62. This phrase confirms the rule’s 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 of law.
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 cat-
egories listed in the Annex to this Convention.”). For the meaning of the same term under the Hague
Convention, see R. O’Keefe, The Meaning of “Cultural Property” under the 1954 Hague Convention, 46
Neth. Int’l 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.
f. Annotations to the Rule
(1) the starting point: the lex rei sitae originis
Although the proposed rule deals with things that are moved across state or national boundar-
ies (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, typi-
cally 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 another’s uni-
lateral act—such as a theft—should 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 own-
ers 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 advo-
cated 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 “stolen”67 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 owner’s 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 owner-
ship). This requirement is not anomalous because a party who is not in possession does not benefit from
the presumption of ownership that the other party’s possession entails.
66. See Resolution adopted by Institute de droit international, Resolution on September 1999, 81 Rev. cri-
tique de droit int’l privé 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
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 com-
prising its cultural heritage. However, the fact that only 37 countries have ratified or acceded to
the Unidroit Convention—and 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 ideal world.
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 neces-
sarily 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 owner’s opponent may rebut the
presumption by showing that the case meets all three conditions spelled out in Paragraph 3 of
the rule, as discussed below.
(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 that law;
(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 inap-
plicable 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 addi-
tion, 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 defen-
dant 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).
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, how-
ever, 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 owner’s opponent demonstrates that the case
satisfies all the conditions prescribed in Paragraph 3.
(3) the state of the “materially closer connection”

Subparagraph (a) of Paragraph 3 of the proposed rule articulates the first condition for dis-
placing 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 rebut-
ting 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. A transitory, artificial relationship, espe-
cially 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 50 years,73 and that certainly qualifies as a materially closer
connection. However, in Autocephalous, the defendant’s 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 cen-
turies. Similarly, no reason existed to give more weight to the defendant’s 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 pertain-
ing to the purchase took place in that state. Finally, the fact that Indiana was the forum state,
in and of itself, does not make Indiana’s relationship any more significant. The mere fact that
litigation took place there may justify the application of the forum’s procedural laws, but rules
pertaining to the loss and acquisition of ownership of stolen property should not be classi-
fied as procedural. If the forum qua forum were automatically to apply its statute of limita-
tion, 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 that law.
73. The plaintiff ’s mother bought the painting in 1946, in New York, and the plaintiff inherited it in 1973.
of cultural property or their transferees. The Autocephalous court avoided that possibility, but
only because it engrafted a discovery rule onto Indiana’s 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 connection—that is, only when nec-
essary 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 court’s terminology, a more significant relationship) than Cyprus, the
court should not apply Swiss law.
Likewise, even accepting the court’s 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 situ-
ated 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 person’s 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 Paragraph 3.
In Dunbar, Louisiana had a materially closer connection than Austria, and thus the court’s
next inquiry under the proposed rule should be the purchaser’s good faith at the time of the
purchase. The plaintiff ’s mother bought the painting from Kallir’s New York 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 investi-
gate the painting’s ownership.”75 The court did not discuss the purchaser’s good faith because,
under Louisiana law, a possessor who “openly and publicly” possesses a movable for more than
10 years is not required to show that the purchaser was in good faith at the time of the pur-
chase. We shall return to the quoted phrase later, but the proposed rule would require proof
of good faith.
(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 state’s 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 at 661.
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 owner’s rights due to the pas-
sage 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 owner’s 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 today’s 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 owner’s control, is unable to protect his or her own-
ership. 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 purchase price.
(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 owner’s 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 to act).
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 owner’s efforts would reduce the chances that pru-
dent, 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.”).
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 forum’s 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 Indiana’s
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 fol-
lows the traditional common law approach of applying the forum’s 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. A dis-
covery 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 state’s 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 owner’s 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 ques-
tion 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, 287–90 (7th Cir. 1990).
78. See supra 528–31.
79. See P. Reyhan, A Chaotic 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 connec-
tions of the forum with the parties and the art.”).
80. See Sun Oil Co. v. Wortman, 486 U.S. 717 (1988) (discussed supra 548–49) (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).
The discovery rule proposed here makes the choice dependent on the owner’s 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 its own.
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) lib-
erative 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 owner’s inac-
tion, rather than on the adverse possessor’s 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 owner’s 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 owner’s action to reclaim
the owner’s property, without regard to whether the owner ever had the knowledge necessary
to assert it. It is conceptually anomalous in that, by barring the owner’s action, this approach
effectively negates the plaintiff ’s ownership even when the defendant did not meet the require-
ments 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
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 contempo-
rary cases of cross-border movement of stolen goods. With the speed of today’s 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 owner’s rights should remain subject to the law of the situs of origin.
If yes, the owner’s 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 defi-
nition present the most intractable of conflicts because each of the involved states has a legiti-
mate 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 state’s 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 either state.
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 criti-
cal 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 O’Keeffe 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,
11–16 (2001).
Obviously, these tests embody certain value judgments or considerations of substantive jus-
tice. 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 the owner.
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
two—it is une règle de conflit à coloration matérielle.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. SUBSTANTIVE LAW
Although the majority of states of the United States follow the common law system of sepa-
rate 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 prop-
erty 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 245–88.
85. See Symeonides, supra note 83, at 46–69 (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 Wisconsin’s Marital Property Act,
68 Marquette L. Rev. 488 (1985); H.S. Erlanger & J.M. Weisberger, From Common Law Property to
Community Property: Wisconsin’s 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 property state.
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 50 percent
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 equi-
table 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: A Response to the Critics, 13(3) Comm. Prop. J., 11, 12–14, 24–25
(1986).
89. Basic bibliography on this topic includes: Hay, Borchers & Symeonides, Conflict of Laws 659–87;
Felix & Whitten, American Conflicts Law —608-23; W. Reppy & C. Samuel, Community Property in the
United States (7th ed. 2009); J.B. Bertrand, What’s Mine Is Mine Is Mine: The Inequitable Intersection
of Louisiana’s 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 Int’l & Comp.
L.Q. 855 (1993); H.S. Erlanger & G.F. Monday, The Surviving Spouse’s Right to Quasi–community
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
Civil law systems focus on the spouses rather than on the property’s location, and generally
assign these matters to the law that governs the marital relationship (usually the law of the matri-
monial domicile) rather than the law of the situs of the property.90 However, these systems encoun-
ter 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 govern-
ing the matrimonial regime, a change that may be partial or total, prospective only or also retro-
spective.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 governing law.
Common law jurisdictions, including most American states that follow the community prop-
erty 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: A Conflict of Laws Analysis, 29 Wayne L. Rev. 1 (1982);
F.K. Juenger, Marital Property and the Conflict of Laws: A Tale 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, Louisiana’s 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. Int’l L. J. 78 (1982); D. Tooley-Knoblett, A Step by
Step Guide to Louisiana’s 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 6–8 (1978).
93. See, e.g., Austrian PIL codification, § 19; German EGBGB, Art. 15(II); Swiss PIL codification, Arts
52–53; 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. §§ 233–234.
96. See id. § 258.
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 termi-
nation 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 and Wilma.
C. THE PROBLEM OF MOVING SPOUSES

1. From a Separate-P roperty State
to a Community-P roperty State
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 $3 million, 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 50 percent of Henry’s
$3 million under that state’s equitable distribution doctrine; and (2) in the case of Henry’s
death before divorce, Wilma would be entitled to a statutory share of one-third of the $3 mil-
lion. Suppose, however, that the “critical event” (i.e., the divorce or Henry’s 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 $3 million.
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, State Y?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 659–87.
100. Similar questions would arise if, with or without a change of domicile to State Y, Henry used the
$3 million 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 State X.
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 $3 mil-
lion would be classified as Henry’s separate property. Because State Y is a community property
state—and under its law the separate property of one spouse is, in principle, free of any claims
in favor of the other—Wilma will receive nothing out of Henry’s $3 million.101 To use a prover-
bial expression, Wilma falls between the cracks of the two systems. She loses, not only the pro-
tection 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 prop-
erty. Under this approach, the court would award Wilma $1.5 million in a divorce proceeding
and $1 million 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 sev-
eral 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 California’s 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 Thornton’s Estate, 33 P.2d 1 (Cal. 1934); Stephen
v. Stephen, 284 P. 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, 546 P.2d 407 (Idaho 1976); Rau v. Rau, 432 P.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 cases only.
104. Cal. Fam. Code § 125 (2015). Section 760 of the same Code provides that, unless expressly desig-
nated 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.”
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 decedent’s 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 $3 million qualified
as community property under California’s internal law, and hence as quasi-community prop-
erty, under the above provisions. If all of the $3 million 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
Henry’s death. If none of the $3 million qualified, then the court will award Wilma nothing.
In between these two extremes lie several intermediate possibilities. However, in most pos-
sibilities 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 forum’s classification rules. If all the property qualifies as community under those
rules, the court treats it as such under the forum’s 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 Y’s classification rules, then the court would apply the distribution rules
of State Y and award Wilma $1.5 million. In this case, this approach produces the same result
as would the pure quasi-community approach, good or bad.
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 treated alike.
106. Cal. Prob. Code § 66 (2015).
107. If the decedent was domiciled outside California at the time of death, California’s 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 decedent’s 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, at 15–23.
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 that law”).
The differences between these two approaches become apparent when some or all of the
$3 million 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 $3 million qualifies as com-
munity property under State Y law, the court will apply the distribution rules of State X and
award Wilma $1.5 million in a divorce proceeding, or $1 million 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 forum’s classification rules) but avoids its pit-
falls (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 problem-
atic 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

to a Separate-P roperty State
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 Henry’s death. If the mar-
riage terminates by Henry’s 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 con-
flicts. This Act applies to “all personal property, wherever situated” that was acquired “as com-
munity 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, New York, 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).
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 spouse’s estate. The Act provides that the surviving
spouse’s half “is not subject to testamentary disposition by the decedent or distribution under
the laws of succession of this State,”114 and that the decedent’s half “is subject to testamentary
disposition or distribution under the laws of succession of this State … [and] is not subject to
the surviving spouse’s 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 $3 million was classified as Henry’s 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, includ-
ing Wilma’s possible forced share or “right to take against [Henry’s] 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 $3 million would be classified as commu-
nity property, the Act would be applicable and the immovable would be divided as described
above.117
3. Recent Cases
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 exe-
cuting a prenuptial agreement opting out of France’s community property system and adopt-
ing 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 posses-
sion 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. at § 6.
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. at 978.
subsequently by any means whatsoever.”120 Shortly thereafter, the spouses moved to New York,
where they lived together for 38 years before the wife filed for divorce and equitable division of
property under New York law. The husband invoked the prenuptial agreement as a defense to
the equitable division claims. The New York Court of Appeals upheld the defense.
The court noted that, under New York’s Equitable Distribution Law, property that a pre-
nuptial 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 hus-
band 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, regard-
less 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 Louisiana’s 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, 10 years later, the wife filed for divorce and alimony. The hus-
band invoked the premarital agreement, which contained an explicit waiver of alimony. The

121. Id. at 981.
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 Spain’s 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 New York.
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 New York law. However, even if it were, it would not have made
a difference because New York’s 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 New York, which was signed in the Spanish
Consulate in New York, was governed not by Spanish law (as the husband argued) but by New York 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).
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 Carolina’s
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 Carolina’s lex loci contractus rule,
California law governed the validity of the premarital agreement and that law did not contra-
vene North Carolina’s 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 applica-
tion of Florida law was not contrary to a “fundamental policy” of Iowa. The court reasoned that
“on a spectrum of public policies,” Iowa’s policy of not enforcing postnuptial agreements was
“not at the upper end.”127 After all, the court noted:
[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 court’s 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 (Iowa 2014).

126. Id. at 226.
127. Id.
128. Id.
129. Id.
b. Marital Property and Talaq

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 wife’s
equitable division claims under that law. Under Pakistani law, these assets were the husband’s
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 writ-
ten marriage agreement allows it, or if the husband otherwise grants that right to her—neither
of which occurred in this case.
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 Maryland’s highest court affirmed. The court held that the “enforce-
ability of a foreign talaq divorce … where only the male, i.e., husband, has an indepen-
dent right to utilize talaq and the wife may utilize it only with the husband’s permission, is
contrary to Maryland’s 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 Pakistan’s denial of equi-
table 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 Maryland’s
courts.134
c. Marital Property and Taxes

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 Amin’s regime and settled in Belgium, where they
lived for 30 years. During that time, the husband bought the shares in his own name. When he
died in 2002, the shares were worth more than $11 million, and the IRS included all of them
130. 947 A.2d 489 (Md. 2008).

131. Id. at 490.
132. Id. at 500–01.
133. Id. at 501.
134. Id.
135. 608 F.3d 67 (1st Cir. 2010).
in his taxable estate. The wife claimed that half of the shares belonged to her under Belgium’s
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
decedent’s 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 court apply.
The U.S. tax authorities argued that an English court would follow the doctrine of immuta-
bility 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 mov-
able 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 sep-
arate 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 Belgium’s community property regime, half of the shares
would belong to the wife and would not be taxable as part of the husband’s estate.
The First Circuit found that the only relevant English case on the subject was a 1900 deci-
sion 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 tax-
able. The court rejected the estate’s 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 mecha-
nism that allowed spouses to switch or modify the marital property regime governing their hold-
ings, … 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.3d at 75.
138. 230 P.3d 734 (Idaho 2010), reh’g denied (Apr. 29, 2010).
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
spouse’s earnings during the marriage. The issue in this case was whether Kathy owed Idaho
taxes on one-half of David’s 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 David’s 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 David’s Nevada income violated David’s due process rights because his only contacts with
Idaho was his marriage to Kathy. The court rejected the argument, noting that David’s contacts
with Idaho were irrelevant because Idaho was not taxing him but was instead taxing Kathy,
an Idaho domiciliary, for the one-half of David’s earnings, which, under Idaho law, belonged
to Kathy.
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 person’s extraterritorial real estate by ordering him or her to act or
to cease to act in some particular way in relation to the property … . A Wyoming 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 mari-
tal 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 con-
tempt 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. 304 P.3d 116 (Wyo. 2013).

140. See Fall v. Eastin, 215 U.S. 1 (1909).
141. Roberts, 304 P.3d at 120.
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 wife’s] 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 juris-
diction 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 Poland’s 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 own-
ership of real property in Poland.”146
I I I . S U C CES S I ONS
A. “UNITY” OR “SCISSION” OF THE ESTATE

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 120–21.
144. 182 P.3d 959 (Wash. 2008).
145. Id. at 962.
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 100 percent 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 husband’s 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. Grahl–Madsen, Conflict between the Principle
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 per-
sonal 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 respec-
tively 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 com-
paratist 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 desirable—uniformity of treat-
ment 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 unifor-
mity 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 move-
ment 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 Int’l & 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: A Critical Analysis of the
Ramifications of the Hague Convention on Succession to Decedents’ Estates, 32 Va. J. Int’l L. 83 (1991); E.
Scoles, Choice of Law in Family Property Transactions, 209 Recueil des Cours 17 (1988–II); E. Scoles, The
Hague Convention on Succession, 42 Am. J. Comp. L. 85 (1994); Symeonides, supra note 1.
148. For citations and exceptions, see Symeonides, supra note 1, at 1035–36.
149. E. Rabel, The Conflict of Laws: A Comparative Study 272 (vol. 4, 1958).
150. M. Wolff, Private International Law 567 (2d ed. 1950).
Much has changed since those formative years. For instance, substantive common law
eventually recognized a concept of individual land ownership encompassing a power of dis-
position 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 sovereign’s 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 suc-
cession 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 as such.
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 decedent’s 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
situs”153 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 death”154 for movables. The notion of aiming for
the state that “with regard to the particular issue” has “the most significant relationship”—the
two standard phrases found everywhere in the rest of the Restatement—is absent from this
chapter of the Restatement. The only flexibility the Restatement (Second) allows is through the
repeated statement that the situs courts will “usually”155 (i.e., perhaps not always) apply their
own local law.
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
151. See Restatement (First) §§ 245–250.

152. See id. at §§ 300–310.
153. See Restatement (Second) §§ 236–242.
154. See id. at §§ 260–265.
155. See id. at §§ 236–239, 241–242, 261–263, 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 capac-
ity of the testator and the capacity of the devisee (see id. at § 263); (2) the statutory interest of the surviv-
ing 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 §§ 261–262), and (4) all issues of intestate succession (see id. at § 260).
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 decedent’s estate (forced heirship, statu-
tory 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
title—the 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 latter state.
Two recent cases illustrate the unchallenged reign of the situs rule with regard to succes-
sion 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 decedent’s will
left all of her property to one heir and did not mention her other three heirs. A Texas court
probated the will and declared the named heir to be “the sole devisee” under the will. When the
devisee claimed all of the decedent’s 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 neverthe-
less 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 nonju-
dice 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 omitted heirs.
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 the situs.
158. See id. at § 239.
159. See Restatement (Second) §§ 237–238 . The Restatement (Second) does not address the right of
children to a “forced share,” apparently because common law states do not grant this right.
160. See id. at § 236.
161. 321 P.3d 1001 (Okla. Civ. App. 2014).
163. Id. (quoting Okla. Stat. Ann. tit. 84, § 20 (2011)).
Mohr v. Langerman164 was an inheritance dispute, involving Iowa farmland, between the
decedent’s 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 connec-
tions with Iowa. The surviving spouse was an Arizona domiciliary, whereas the son was born in
Arizona, domiciled in California, and recognized as the decedent’s son by an Arizona paternity
judgment. He argued that Arizona law should govern the question of whether he qualified as
the decedent’s 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. Testamentary Form
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 coun-
tries.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: A Comparative Study 290 (v. 4, 1958) (quoting Phillimore).
167. See Symeonides, supra note 1, at 1048, 1046; see also E. Rabel, Conflict of Laws: A Comparative Study
287 (1958) (“invalidity of a will, discovered after the testator’s death is irreparable.”)
168. See Unif. Prob. Code § 2–506 (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 § 3–5.1(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 con-
forms to the internal law of any one of the following places: “(a) The place where the testator made it, or
(b) A nationality possessed by the testator, either at the time when he made the disposition, or at the time
of his death, or (c) A place in which the testator had his domicile either at the time when he made the dis-
position, or at the time of his death, or (d) The place in which the testator had his habitual residence either
the European Union’s 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 court’s 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 court’s 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 excep-
tions 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 testator’s domi-
cile at either the time the testament was made or at the time of the testator’s 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 Louisiana’s 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, Louisiana’s 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 con-
cerned, of the place where they are sit.” For an authoritative discussion of this convention by its Rapporteur,
see A.E. von Overbeck, L’unification des règles de conflits de lois en matière 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 disposi-
tion 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 254–55.
173. See id.
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 1056–73.
176. See La. Civ. Code Art. 3533 (2015).
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, regard-
ing testamentary capacity, the Argentinean, Austrian, Louisiana, and Puerto Rico codifications
provide alternative references to the laws of the testator’s domicile either at the time of the
testament’s making or the time of the testator’s 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 testator’s habitual residence or nationality.179 The Swiss codification limits the choices to
the time of the testator’s 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
decedent’s 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. Testator’s Choice
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 1092–97.
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 as such.
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. Int’l 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: A Starting 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.
Applicable to Estates,186 the European Union’s 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 testator’s choice of law is subject to geographical or substantive lim-
itations, or both. For example, Section 2–703 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 allow-
ances . . . , 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 testator’s choice of law.192 It
applies to both movables and immovables and allows the testator’s chosen law to determine
not only the “meaning” but also the “effect” of a disposition. However, the testator’s 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 in force.
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 § 2–703 (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 similar type.”
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 res-
idence 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. 3098–3099; 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?, 56–57 (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.
In contrast, the State of New York has enacted a unilateral rule taking the notion of testa-
tor choice a bit too far. Subdivision (h) of Section 3–5.1 of the New York’s 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 testator’s general capacity, effect, interpretation, revoca-
tion or alteration of any such disposition is determined by the local law of this state.194
This provision requires the application of New York law even if the testator has never set
foot in New York. All that is needed is for the testator to have sent her money to a New York
bank and to “elect” New York law in her testament. From New York’s perspective, such an elec-
tion renders New York law applicable to “the intrinsic validity, including the testator’s general
capacity, effect, interpretation, revocation or alteration” of any such testament. This is partic-
ularly troublesome when, under the law of her domicile, the testator does not have capacity
to “elect” New York 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 decedent’s 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 testator’s election of New York law resulted in depriving a child of his forced heir-
ship 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 citizen’s] … 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 pre-
serving 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 countries’ laws.
In contrast to Wyatt, the testator in In re Estate of Rhoades201 was able to disinherit his
surviving spouse by not electing to have New York law govern his succession. The testator had
194. N.Y. Est. Powers & Tr. Law § 3–5.1(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 “elec-
tion” of New York law, the court applied that law, which was contrary to Spanish marital property and
succession law.
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 at 864.
199. Wyatt, 211 N.E.2d at 639.
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).
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 New York, asserting her right of election to “take against the will.” Under Florida law, a sur-
viving spouse’s right to take against the will does not encompass immovables situated outside
Florida.
The court held that under New York law, this right “is not available to a spouse of a dece-
dent who was not domiciled in [New York] 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 New York, he/she can
move out of New York 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 unfor-
tunate, 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. at 894.

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 dece-
dent, 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 situs rule.
sixteen
Conflicts between Federal
Law and Foreign Law
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 fed-
eral 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 LAW LIMITS

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. Congress’s 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, 445–50 (1979); Container
Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159 (1983).
625
events or persons, Congress is bound by limits imposed by international law. The Supreme
Court’s jurisprudence is replete with pronouncements of desired compliance with international
law. They include Justice Marshall’s 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 con-
struction 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 enact-
ment 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 Alcoa case:
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 our law.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 States”5
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 construc-
tion 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 President’s 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 interna-
tional 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 Foreign Law 627
Congress enacts legislation in violation of international law, … U.S. courts must disregard inter-
national 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 Constitution’s 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. CONSTITUTIONAL LIMITS
Chapter 2, 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 limita-
tions 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 gov-
ernment, 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 consti-
tutional limits of the federal government’s 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 mat-
ters, 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 govern-
ment’s 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 Litigation 604.

12. U.S. Const. art. VI, cl. 2.
13. See Medellín v. Texas, 552 U.S. 491, 504–05 (2008).
14. See, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) (referring to the presi-
dent’s 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 crimi-
nal 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 inter-
national law, it may not exceed the limits of the due process clause.”); United States v. Davis, 905 F.2d 245,
248–49 (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. at 755.
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 consti-
tutional 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 jurisdic-
tion 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 unconstitu-
tional 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 fed-
eral statute to foreign events, the question is rarely whether the statute’s 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 congres-
sional intent as evidenced by the statute’s language and other factors discussed below.
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 per-
sons, or U.S. persons while present or acting abroad. The following are examples of such
statutes.
A. STATUTES APPLICABLE TO U.S. CITIZENS

PRESENT OR ACTING ABROAD
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 at will.
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 gov-
ernments 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 statute’s 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 for-
eign 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 TO U.S.

CITIZENS INJURED ABROAD
Relying on the “passive personality” principle (converse of the nationality principle), Congress
has enacted several pieces of “antiterrorist” legislation, imposing criminal and civil sanc-
tions 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. App’x. 841 (11th Cir. 2006), cert. denied, 549 U.S. 1065, 127 S. Ct. 692 (2006).
30. Strevell, 185 Fed. App’x. at 845. The court affirmed the defendant’s conviction for attempting to travel
to Costa Rica to engage in prostitution with a minor. For other cases applying this statute to extraterrito-
rial 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 pri-
marily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms
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 terror-
ism) 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 case law.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. §§ 2331–2339C (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 victim’s 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 People’s 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
People’s 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 People’s 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
C. STATUTES APPLICABLE TO PERSONS

ACTING UNDER FOREIGN LAW
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 pre-
cisely 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 organi-
zations, such as the Palestinian Liberation Organization.
In Arar v. Ashcroft,41 a case involving so-called “extraordinary rendition,”42 the court erro-
neously 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. citi-
zens, 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), reh’g 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 at 263.
44. See id., quoting H.R. Rep. No. 102–367, 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 author’s 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).
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
domestic—not foreign[.]‌”46 The Court of Appeals affirmed the decision on this latter ground.47
D. STATUTES APPLICABLE TO THE HIGH SEAS

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 defendant’s 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 facilitating”52 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 com-
mission 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
A vessel is “subject to the jurisdiction of the United States,” inter alia, if it is: (1) a stateless ves-
sel, 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 at 264.

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), reh’g en banc denied (Aug. 21, 2013).
51. The defendant, a Somali national, had negotiated the ransom for the release of a Danish vessel cap-
tured 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 high seas.
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.
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 TO ALIENS

WHILE IN THE UNITED STATES
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 Seamen’s Act of
1915, which governs seamen’s 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 for-
eign 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 Congress’s 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. App’x. 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), reh’g and reh’g 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. App’x. 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. §§ 1361–1421 (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. 111 P.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 infra 636–41.
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. at 355.
F. INTERPRETATION
As Dillon illustrates, when there is clear congressional intent about a statute’s 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 legisla-
tively answer the choice-of-law question, leaving little for the courts to do.
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. A related 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
statute’s 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 “boil-
erplate language” 65 whose “literal catholicity,”66 if taken at face value, would make them appli-
cable 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 ‘whoever’ ”67 because “they ordinarily give no thought to the phe-
nomena that would suggest the need for qualification.”68 For example, the Jones Act purports
to provide a remedy to “[a]ny seaman”69 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 govern-
ing 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. Lüke & 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 Laws 81.
68. Id. at 82.
69. 46 U.S.C. § 688 (2015).
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
authority’s 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 tech-
niques, 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 discussed below.
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 Huber’s 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 presump-
tion: “[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 legisla-
ture 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 578–79.
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 & Pol’y Int’l Bus. 1 (1992); C. Bradley, Territorial Intellectual Property
Rights in an Age of Globalism, 37 Va. J. Int’l L. 505 (1997); W. Dodge, Understanding the Presumption
against Extraterritoriality, 16 Berkeley J. Int’l L. 85 (1998); W. Dodge, Extra-Territoriality and Conflict-of-
Laws Theory: An Argument for Judicial Unilateralism, 39 Harv. Int’l L.J. 101 (1998); M. Gordon, United
States Extraterritorial Subject Matter Jurisdiction in Securities Fraud Litigation, 10 Fla. J. Int’l 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. Int’l 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. Int’l. 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. at 370.
75. Id.
Co.,76 refusing to apply the Sherman Act to an American company’s 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-state’s 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. law—a 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 Wildenhus’s Case.82 In that case, the Supreme Court restated the general
76. 213 U.S. 347 (1909).

77. Id. at 356.
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 sover-
eignty 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 vessel’s internal affairs and operations[.]‌”). This canon is analogous,
but not identical, to the territorial presumption.
82. Mali v. Keeper of the Common Jail (Wildenhus’s Case), 120 U.S. 1 (1887).
principle that “when a merchant vessel of one country enters the ports of another …, it sub-
jects 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 mat-
ters 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 ship’s “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 Wildenhus’s 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 par-
ties 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 American law.
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, rea-
soning 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 ter-
ritory 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. at 11.
86. 262 U.S. 100 (1923).
87. Id. at 123.
88. Id.
89. Id. at 124.
90. 353 U.S. 138 (1957).
91. See 29 U.S.C. § 141 (2015).
under the laws of another nation.”92 The Court noted the absence of express language declar-
ing 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 operat-
ing 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 Board’s 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 manage-
ment 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 ship’s 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 longshoremen’s “short-term, irregular
and casual connection with the respective vessels plainly belied any involvement on their part
92. Benz, 353 U.S. at 142.

93. Id.
94. Id. at 143–44.
95. 372 U.S. 10 (1963).
96. See 29 U.S.C. § 151 (2015).
97. McCulloch, 372 U.S. at 20.
98. Id. at 21.
99. Id. at 22.
100. 397 U.S. 195 (1970).
101. Id. at 199.
with the ship’s ‘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 accommodation”105 and
“public transportation services”106 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 com-
munication 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 ship’s
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 oper-
ated 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 States law.
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 ADA’s 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 Kennedy’s 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 ship’s 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. at 200.

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. §§ 12181–1289 (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), rev’d, 545 U.S. 119 (2005).
110. Spector, 545 U.S. at 130.
discriminatory pricing, which did not involve the ship’s 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 ship’s public areas. For example, most
of the cabins were not accessible to disabled passengers, and the ship’s coamings (the raised
edges around the doors) rendered many areas inaccessible to persons with mobility impair-
ment. 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 ship’s internal affairs, they could
also fall within the Wildenhus’s 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 altera-
tion 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 hypo-
thetical 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 ship’s 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 ship’s 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 133–34. In addition to Justices Stevens and Souter (who joined Justice Kennedy’s 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. at 135.
115. Id.
116. Id.
117. Id. at 136.
118. Id. at 143 (Ginsburg, J., concurring).
119. Id. at 145.
that U.S. resident cruise passengers enjoy Title III’s 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 ship’s] ‘internal order’ ”121 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 enact-
ment cover foreign flagships,”123 as opposed to inferring such intent. In Justice Scalia’s view, this
determination was an all-or-nothing proposition in the sense that the absence of a clear state-
ment would render the ADA inapplicable to all violations alleged by the plaintiffs, including
the discriminatory practices that the plurality found not to involve the ship’s 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 seaman”124 who suffers an injury in
the course of his employment. Taken literally, the quoted phrase would include foreign sea-
men 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 ship’s internal dis-
cipline, 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 New York.”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. at 153.
124. 46 U.S.C. § 688 (2015). (“Any seaman who shall suffer personal injury in the course of his employ-
ment may maintain an action for damages … and in such action all statutes of the United States modify-
ing 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. at 240.
127. 345 U.S. 571 (1953).
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 Danish law.
The long-term importance of Lauritzen lies in the general methodology the Court articu-
lated 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 terminol-
ogy”128 (i.e., “any seaman”), the Jones Act applied to this case.129 The Court not only rejected
subservient reliance on the Act’s language, but also avoided any pretense of searching for
Congress’s actual intent in enacting it. Speaking pragmatically, the Court noted that many stat-
utes, 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 accus-
tomed 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 fol-
lowed 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 alle-
giance 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 territori-
ality 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. at 576.

129. See id. at 576–77 (“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 any-
where in the world in service of watercraft of every foreign nation—a hand on a Chinese junk, never
outside Chinese waters, would not be beyond its literal wording.”).
130. Id. at 577.
131. Id.
132. Id. at 582.
133. See id. at 583–91.
134. 385 U.S. 354 (1959).
135. 398 U.S. 306 (1970).
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 factor—which the Court
added to the seven Lauritzen factors—tipped the scale in favor of applying the Jones Act.
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 law”139 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 con-
firmed 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 308–09.

137. Id. at 310.
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 Comm’n, 190 F. Supp. 2d 900 (E.D. La. 2002) (a suit by
shipowner against Panama Canal company); and Gund III v. Philbrook’s 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, 1020–21.
140. For numerous citations, see id. at 1021–22.
141. Lauritzen, 345 U.S. at 586.
142. For numerous citations, see S. Symeonides, supra note 103, at 513.
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 shipowner’s “allegiance”—to the extent it ever existed—has 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 WITH DOMESTIC 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 inter-
national law if it so chooses, the common assumption has been that Congress does not intend
to do so. Consequently, in Justice Marshall’s 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. See id.
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 registra-
tion 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, at 514.
146. See supra at note 78.
147. Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).
148. Lauritzen, 345 U.S. at 577.
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) at 118.
151. P.C.I.J., Ser. A. No. 10 (1927).
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 Holmes’s state-
ment 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 con-
duct 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 satisfied”157 (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 Sherman Act.
In Timberlane Lumber Co. v. Bank of America N.T. & S.A.,158 the Ninth Circuit moder-
ated 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-à-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 else-
where, 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. at 284.
156. Alcoa, 148 F.2d at 443.
157. Id. at 444.
158. 549 F.2d 597 (9th Cir. 1976).
159. Id. at 613.
160. Id. at 614.
By evaluating these factors, a court would identify the “degree of conflict” and then “deter-
mine 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 extraterri-
toriality. 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 614–15.

162. 499 U.S. 244 (1991).
163. Aramco, 499 U.S. at 248.
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).
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 govern-
ment 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 con-
flict 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 jurisdiction”170 in this case, which did not present a “true conflict”171
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 for-
eign 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 con-
flict” and the defendants were perfectly capable of complying with both laws.
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 coun-
tries.”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) Aramco’s territorial presumption, and (2) Charming Betsy’s 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 con-
spiracy, 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. at 799.
171. Id. at 798.
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 supra 100–03.
173. 509 U.S. at 799 (citing Restatement (Third) § 415, cmt. j).
175. Id. at 820–21.
(as the defendants conceded), the Court did not satisfy the Charming Betsy canon that: “stat-
utes 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 defendant’s
London activities would be “unreasonable.”178 This is because the defendants were foreign cor-
porations whose activity took place primarily in the United Kingdom, a country that had estab-
lished 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

BY INTERNATIONALISM
In the 2004 case F. Hoffman-La Roche Ltd. v. Empagran S.A.,180 the Supreme Court, in a unani-
mous decision by Justice Breyer, seemed to take to heart Justice Scalia’s insistence on consider-
ing 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. at 815.

177. Id. at 817.
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, 90 percent 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 act-
ing 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, 478–79 (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 supra 476–77).
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
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 world-
wide 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 cir-
cumstances, “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 FTAIA’s language and history, the Court based its holding on “prin-
ciples 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 “today’s highly interdependent commercial world,” courts should seek to recon-
cile 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 Court—at least not in this case, one might add.
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 juris-
diction. 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. at 159.
186. Id. at 169.
187. Id. at 164.
188. Id.
189. Id. at 169.
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 nation’s ability independently to regulate its own commercial
affairs,”191 a risk that was duly brought to the Court’s attention by many foreign governments
in their amici briefs.
I. DOMESTIC CONDUCT WITH FOREIGN EFFECTS

AND THE “HEADQUARTERS 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 circum-
stances 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 pro-
viding 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 for-
eign 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. at 165.

191. Empagran, 542 U.S. at 165. (“Why should American law supplant, for example, Canada’s or Great
Britain’s or Japan’s own determination about how best to protect Canadian or British or Japanese custom-
ers 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 internal law.
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).
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 mak-
ing 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 “headquar-
ters doctrine,” discussed below.
Sosa v. Alvarez-Machain199 fell within the latter pattern to the extent it involved a tort com-
mitted 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 pur-
pose. Eventually the court acquitted Alvarez, after which he brought a tort action against the
United States under the FTCA.
The Ninth Circuit Court of Appeals held for Alvarez, finding the FTCA’s foreign-country
exception inapplicable.200 This case fit the headquarters doctrine “like a glove,”201 said the
court, because although the “operative effect” of Alvarez’s 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 instruc-
tions”203 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, Alvarez’s false arrest, “occurred
as a direct and intended result of the DEA’s plans.”204
In an opinion written by Justice Souter, the Supreme Court reversed, rejecting the headquar-
ters 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 at 638.
204. Alvarez-Machain, 266 F.3d at 1055–56.
205. Sosa, 542 U.S. at 702.
206. Id. at 703.
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 DEA’s plans,” (supra, text at note 204) hatched in California. The Court must have read these facts
differently.
Another reason for rejecting the headquarters doctrine was the Court’s conclusion that
the doctrine is antithetical to the congressional intent embodied in FTCA’s 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 FTCA’s passage, “the dominant prin-
ciple 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 headquar-
ters 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 FTCA’s 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. at 705.
210. Id. at 707. For this conclusion, the Court relied on its 1949 decision in Spelar, supra 650, which, how-
ever, involved a tort in which both the injury and the conduct had occurred in the same foreign country.
211. Sosa, 542 U.S. at 708.
212. Id. Of course, the headquarters doctrine leads to foreign law only when the headquarters jurisdic-
tion (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. at 712.
213. Id. at 712.
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 et al. 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
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 con-
duct and foreign injury, is a question that the FTCA text does not answer. The Court’s 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 of 2004.
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 dis-
tinguish 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. gov-
ernment 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. at 9.
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
Sosa’s 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.3d at 11.
219. Id. (quoting plaintiffs’ brief) (emphasis added by court).
220. Id. at 12.
221. Id. at 13.
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. A U.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 bor-
der.226 The boy’s parents sued the United States under the FTCA. In an effort to avoid Sosa’s
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 coun-
try” and, thus, the plaintiffs’ claim was “barred by the foreign country exception under Sosa.”228
J. THE TERRITORIAL PRESUMPTION

RETURNS IN FULL FORCE
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. at 14.
224. See Gross, 771 F.3d at 14–15. 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), reh’g 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. at 258.
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 (quota-
tion 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 connec-
tions with the United States to invoke the Fourth Amendment, and the officer had qualified immunity
from a Fifth Amendment excessive force claim.
229. 561 U.S. 247 (2010).
230. ___ U.S. ___, 133 S. Ct. 1659 (2013).
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 Exchange Act

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 defen-
dants (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 NAB’s own shares, which the
plaintiffs purchased. The district court dismissed the actions and the Second Circuit affirmed,
reasoning that the Florida company’s overstatement was a minor factor in the chain of a fraudu-
lent 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 extrater-
ritorial reach of the SEA and other federal statutes that are silent on their extraterritorial reach.
In an opinion written by Justice Scalia, the Supreme Court affirmed the result but on differ-
ent 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 statute’s meaning, rather than a limit upon Congress’s 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”;235 and
(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 connec-
tion 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. at 255.
233. Id.
234. Id. at 265.
236. Id.
The Court criticized the lower court for ignoring this presumption and instead attempt-
ing 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 repu-
diated 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 mate-
rial to the fraud’s 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 pur-
chases or sales of foreign securities, the case fell outside the statute’s territorial reach.
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. at 258.

238. Id. at 248, 255.
239. Id. at 248.
240. Id. at 269.
241. Id. at 270.
242. Id.
243. Id. at 272.
244. Id. at 272.
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 bad law”).
246. Morrison, 561 U.S. at 286 (Stevens, J., concurring).
247. The same can be said about the majority’s 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 majority’s pronouncements on this point are dicta. On the other hand, the major-
ity’s conclusion that Section 10(b) applies to domestic transactions affected by foreign fraud suggests that
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 Scalia’s dissent
in Hartford Fire,248 that is, out of deference to Australia’s 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 ter-
ritorially. 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 court’s 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 effects test.
248. See Hartford Fire Ins. Co. v. California, 509 U.S. 764, 814 et seq. (1993) (Scalia, J., dissenting).
249. Morrison, 561 U.S. at 261.
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), Congress’s intent to negate Morrison’s territorial presumption cannot be seri-
ously 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
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 inter-
preting a statute, which has the same meaning in every case, … not a rule to be applied to the
specific facts of each case.”255 A statute “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 govern-
ment 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 differ-
ent 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 court’s 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 crimi-
nal prosecutions of securities fraud may be limited. What remains from Vilar is the unneces-
sarily 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 future cases.
2. The Alien Tort Statute (ATS)

a. Sosa
Sosa also involved a claim under the Alien Tort Statute (ATS)257—the 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 statute’s 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. at 74.
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 supra 651–52.
260. 630 F.2d 876 (2d Cir. 1980).
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 actions”263 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 prevail-
ing views and practices of that time, the Court identified three offenses that met both crite-
ria: “offenses against ambassadors, … violations of safe conduct …, and individual actions
arising out of prize captures and piracy.”264
The Court rejected Justice Scalia’s argument that, by declaring that federal courts had no
authority to create “general” common law, Erie “close[d]‌the door to further independent judi-
cial 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 Alvarez’s claim
failed to satisfy this standard because his kidnapping was, after all, no more than “a single ille-
gal 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 Nat’l Rubber Co., LLC, 643 F.3d 1013, 1025 (7th Cir. 2011) (“[N]‌o court
to our knowledge has ever held that [the ATS] doesn’t 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. at 720.
264. Id.
265. Id. at 729.
266. Id.
267. Id. at 732.
268. Id. at 738.
269. Sosa, 752 U.S. at 739 (Scalia, J., dissenting).
to open a new door of federal common law. After lamenting the phenomenon of “unelected
federal judges … usurping [Congress’s] lawmaking power by converting what they regard as
norms of international law into American law,”270 Scalia criticized the majority for being “inca-
pable of admitting that some matters—any matters—are none of its business,” and character-
ized the majority decision as a victory of the “Never Say Never Jurisprudence.”271
This language, as well as the majority’s reference to “ajar doors” and “vigilant doorkeep-
ing,” have affected not only the substance—as one should expect—but 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 suits”272 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 presump-
tion against extraterritoriality.”277
270. Id. at 750.

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. App’x 7 (D.C. Cir. 2013); Aziz v. Alcolac, Inc., 658 F.3d 388 (4th
Cir. 2011); Flomo v. Firestone Nat’l Rubber Co., LLC, 643 F.3d 1013, 1020–21 (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 I v. 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 applica-
tion is overcome.”).
276. Kiobel, 133 S. Ct. at 1665.
277. Id.
Turning to the ATS’s 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 coun-
try.”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 sover-
eign, 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 hospi-
table forum for the enforcement of international norms.”285 After quoting Joseph Story’s 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 1668–69.

279. Id. at 1666.
280. Id. at 1667.
281. Id.
282. Kiobel, 133 S. Ct. at 1667.
283. Id.
284. Id.
285. Id. at 1668.
286. Id. (quoting United States v. The La Jeune Eugenie, 26 F. Cas. 832, 847 (No. 15,551) (C.C. Mass.
1822)).
287. Id. at 1669.
288. Kiobel, 133 S. Ct. at 1669.
289. Id.
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 restric-
tive interpretation of the ATS for “serious violations of international law principles” in cases
not covered by the Court’s holding and reasoning. He noted that, for those cases, “the proper
implementation of the presumption against extraterritorial application may require some fur-
ther 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
defendant’s 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-
Kiobel Cases
Understandably, Kiobel’s 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 strin-
gent) articulation of the test for applying the ATS. The test seems to track Justice Alito’s concur-
ring 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 fami-
lies 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 extraterrito-
rial 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 viola-
tions 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
Circuit’s 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
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 “ter-
ritorial 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 con-
stitutes aiding and abetting another’s 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 oth-
erwise, the court “disagree[d]‌with the contention that a defendant’s U.S. citizenship has any
relevance.”302 An ATS complaint cannot be “saved,” the court said, “simply because a U.S. citi-
zen 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 test—namely, 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. at 266.
298. Id.
299. Mastafa, 770 F.3d at 185.
300. Id. at 185–86.
301. Id. at 188.
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 Africa’s 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 defendant’s citizenship has any relevance to the presumption against extrater-
ritoriality,” 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 at 190.
Saddam Hussein’s regime by helping it evade U.N. sanctions.305 With regard to BNP, the critical
factor was its banking arrangements and transactions in New York, which facilitated the eva-
sion 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 Circuit’s mens rea standard for ATS aid-
ing and abetting liability. According to this standard, the abettor must provide “practical assis-
tance” 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 regime’s]
human rights abuses, … not whether defendants merely knew that those abuses were occur-
ring 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 Iraq’s Abu Ghraib prison by American interrogators working for the defen-
dants, who were American military contractors.312 Because the case had several significant con-
nections 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 Morrison’s “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 Alito’s 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 Chevron’s purchase and financing of 2 million barrels of Iraqi oil through inter-
mediaries in the United States, and its collecting of the resulting profits in the United States).
306. See id. at 190–91.
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 defen-
dants 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.
conduct.315 The Fourth Circuit concluded that this case satisfied Kiobel’s “touch and concern”
language because it had “substantial ties”316 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 of—or an attempt to
cover up—the Abu Ghraib torture.317
In Doe I v. 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 abso-
lute” 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 extraterri-
toriality, 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 incor-
porated 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 dis-
cerning Congress’s 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, alleg-
ing that they directly funded some of the paramilitaries’ operations and conspired with them
to commit the murders.
315. Id.
316. Id. at 529.
317. See id. at 530–31. 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), reh’g and reh’g 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 at 1022.
320. See id. at 1024 (“We conclude that the plaintiffs’ allegations satisfy the more stringent purpose stan-
dard, 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. at 1028.
322. 767 F.3d 1229 (11th Cir. 2014).
The court adopted the “focus test” from Morrison and dismissed the ATS claims, find-
ing 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 Drummond’s 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 Kiobel’s cryptic test exist not only among different cir-
cuits, but also among panels of the same circuit. Unlike the Doe I panel, but like the Second
Circuit in Mastafa and Justice Alito’s concurring opinion in Kiobel, the Mujica panel focused
on whether the defendant’s 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 pre-
sumption 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 defen-
dants’ 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 dis-
sent also disagreed with the majority’s 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. at 1236.

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 under seal.
326. Id. (quoting Kiobel, 133 S. Ct. at 1669) (emphasis added by Baloco court).
327. Id. at 1238.
328. 771 F.3d 580 (9th Cir. 2014).
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 emo-
tional 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 doctrine’s
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 had been.
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 citi-
zens, 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, California’s 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 majority’s 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 618–19 (foot-
notes 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: A Concerning Trend?, 3 U.C. Irvine L. Rev. 25 (2013); C. Whytock, D. Childress & M. Ramsey,
After Kiobel—International 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. at 610.
336. Id. at 611.
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 rela-
tions with a close ally.337 The Colombian government also expressed its preference for dismissal
in two démarches, 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 question—adequacy. 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 inad-
equate.”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
Court’s jurisprudence on the subjects discussed in this chapter as follows:
[T]‌he Court’s 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 Alcoa’s effect doctrine. A third 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 609–11.

338. Mujica, 771 F.3d at 611.
339. Id. at 614.
340. Id.
341. Born & Rutledge, International Civil Litigation 691.
After all, the cases discussed here span a long period, during which the Court’s 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 mat-
ter in that it rarely explains a court’s 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 Lauritzen’s 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 hypo-
thetical would fall under the Lauritzen-Rhoditis line of cases, leading directly to the applica-
tion 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 accident—the two categories of cases fall under different lines of precedent.
The sharp differentiation between the Jones Act cases and cases such as Spector that argu-
ably 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 presump-
tion at all. In all of these categories, the question is the same: whether the values embodied
in American law—legislatively enacted or judicially declared—should 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 639–41, 641–42.
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. at 126.
345. Interestingly, although the Rhoditis line of cases involved disputes between crewmembers and ship-
owners, 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 statement canon.
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-law cases.
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 signifi-
cant 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 choos-
ing 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 common law.
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
The Next Step
A. WHERE ARE WE?

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. A secondary, 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 con-
flicts law has become an uneven heterogeneous mélange, a hodgepodge. It is time to take stock
and chart the next step in the evolution of American conflicts law. This chapter aspires to con-
tribute to the necessary debate.
B. THE REVOLUTIONARY STATUS QUO

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 pro-
cess, 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 suc-
ceeded 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 theo-
ries, which the courts have merged together, often adding their own variations.2 Thus, the aca-
demic 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-law rules.
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 revolution’s protagonists, admitted that “flexibility is not a virtue for every type of
conflicts case.”3 A fortiori, 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 flex-
ibility 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 judg-
ment, the ever-present wild card of choice of law may discourage settlement.”).
6. See P. J. Kozyris, The Conflicts Provisions of the ALI’s Complex Litigation Project: A Glass 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. O’Hara & 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 privé 142-153 (7th ed. 2001) (referring to “impres-
sionnisme juridique”); Kozyris, supra note 4, at 580 (referring to “judicial particularistic intuitionism”).
8. See P.J. Kozyris, Conflicts Theory for Dummies: Après 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
The Next Step 675
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 Juenger’s 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 unreasoned”13 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 maze”17 or “veritable jungle”18 of conflicts law.
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 per-
son, 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, at 686.
12. Juenger, supra note 10, at 404.
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 note 23.
19. Kozyris, supra note 4, at 578.
20. Id. at 580.
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 Westlaw’s “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 judge’s ‘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 revolution-
ary cycle and begin building a new system. The revolution was necessary for its time. But it went
too far when, following Currie’s 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 Beale’s 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. A correction is needed, and a
new equilibrium should be sought between these two perpetually competing needs.
The revolution has also lasted too long.26 Although polyphony and flexibility are both nec-
essary 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 ALI’s Complex Litigation Project: A Glass 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 worka-
day 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 Int’l Airport, Denver, 720 F. Supp. 1445, 1454–55 (D. Colo.
1988) (“The choice of law problems inherent in air crash and mass disaster litigation cry out for fed-
eral 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
The Next Step 677
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 numeri-
cal victory into a substantive success.
American conflicts law is now ripe for, and needs, some process of consolidation and stan-
dardization. The experience accumulated in the past 50 years 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 conflicts law.
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 tran-
sition. 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 Congress’s 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 “politi-
cal” 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 note 6.
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).
678 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 states—Louisiana and Oregon—that have risen to this challenge. The chapter con-
cludes 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 Louisiana’s 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 codification’s 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 (con-
tracts), 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. 3515–3549), 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 problèmes de droit international privé et la nouvelle codification de Louisiane, 81 Revue critique
223 (1992); Symeonides, Louisiana Exegesis 677–770; 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 responsabilità extracontrattuale, 29 Riv. dir. int’le
priv. & process. 43 (1993); S. Symeonides, Louisiana’s 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
Louisiana’s Conflicts Law on Successions, 47 La. L. Rev. 1029 (1987); S. Symeonides, Louisiana’s 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 note 66.
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 Book IV.
The Next Step 679
applied to that issue.”33 This Hippocratic-sounding catchphrase is the codification’s 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 underly-
ing these codifications. The same is true of the Louisiana codification.
As the codification’s drafter explained—both in the legislatively approved Reporter’s com-
ments and in subsequent publications—the negative phrasing of the above-quoted catchphrase
was “intended to disassociate its approach from Currie’s 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 con-
flict avoidance.”35 At the same time, this negative phrasing, as well as the use of the key word
“impaired,” may evoke comparison with Professor Baxter’s comparative impairment approach
followed in California.36 However, the resemblance is only phraseological. As the Reporter’s
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 Baxter’s 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 policies”—even 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 that case.
36. See supra 105–06.
37. La. Civ. Code art. 3515 cmt. (b (2015). The Reporter’s initial draft avoided using the word “impaired”
precisely in order to prevent any inference that the codification adopted Baxter’s 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 Baxter’s 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 691–92, 707–08.
39. See id. Nothing written here should be taken as a criticism of Baxter’s 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 emulate it.
680 Conclusions
In summary, the Louisiana codification did not adopt either Currie’s interest analysis or
Baxter’s comparative impairment. Instead, the codification was built on the premise that the
choice-of-law process should aim to identify—and apply—the 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 pro-
posed 10 years 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
Weintraub’s 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 is—an
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 law paths.
2. The Method
Article 3515 gives content to the principle of least impairment by providing a set of parameters
to guide the court’s 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 light of:
(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. 3515 cmt. (b) (2015) (emphasis added).

41. R.J. Weintraub, Commentary on the Conflict of Laws 355 (4th ed. 2001).
42. Id. at 347.
43. La. Civ. Code Art. 3515 (2015). Articles 3519, 3537 and 3542 (which are the residual articles for sta-
tus, contracts, and torts, respectively) use similar phraseology.
The Next Step 681
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 oth-
erwise 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.” In turn,
that state is determined by evaluating the strength and pertinence of the relevant policies of the
involved states, in the light of:
(1) the pertinent contacts of each state to the parties and the events giving rise to the dis-
pute, 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 con-
duct 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
(Article 3546).
3. Implementation: Balancing
Certainty with Flexibility
As the above description indicates, the Louisiana codification rejected Currie’s 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 sev-
eral 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 described below.
a. Alternative-Reference Rules
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 supra 97 at note 29.
47. See id. at 175, 250–69.
682 Conclusions
3520 (marriage), 3528 (form of testaments), 3529 (capacity to make a testament), 3538 (form
of contract), and 3539 (capacity to contract). From the judge’s perspective, these rules appear
inimical to judicial discretion (and thus to flexibility) insofar as they deny the judge the free-
dom 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
particular state.
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 flexibility—yet falling short of adopting an American-style
approach—is 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 mod-
ern 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 pecu-
liarities of the individual case so dictate. This grant of authority takes the form of escape clauses
accompanying or attached to the rules.
48. See id. at 176–89.

49. See id. at 190–204.
50. Aristotle, Nicomachean Ethics, V. x 4–7.
51. P. Hay, Flexibility versus Predictability and Uniformity in Choice of Law, 226 Recueil des Cours 281,
291 (1991).
The Next Step 683
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
3543–3546) “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 court’s choice-of-law burden and provide the desired measure of legal cer-
tainty 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 applica-
tion 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 former state.
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 exclu-
sively 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 dif-
ference is discussed later.
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, elliptical rules.
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 3543–3546. 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 3543–3546.
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 Louisiana’s 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 fol-
lowing 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 fac-
tors 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 sup-
posed 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 sev-
eral 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 article57—which enunciates the general approach for that title—and 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 3543–3546 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 estab-
lished by Article 3542—the 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 poli-
cies 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, 729–31, 749–57.
59. La. Civ. Code art. 3542 (2015). For detailed discussion of the structure and content of the torts title,
see Symeonides, Louisiana Exegesis 696–767.
The Next Step 685
that case, but instead may have such an interest only in those issues that actually implicate its
policies in a significant way.
This issue-by-issue analysis—prescribed by the general articles or the application of the
narrow, issue-oriented rules contained in the codification’s specific articles—may, on occasion,
lead to dépeçage. Although dépeçage is innocuous in the majority of cases, in some cases it may
unintentionally defeat the policies of both states. In such cases, dépeçage is inappropriate and
must be avoided. The obvious and difficult question is how to distinguish between appropri-
ate dépeçage and inappropriate dépeçage. In this context, it is worth recalling that the term
dépeçage 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 dépeçage is relatively easy in those cases that fall within the
scope of the codification’s “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 dépeçage 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 dépeçage 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,” dépeçage is not inevitable.
Some of these articles contain built-in mechanisms for avoiding an inappropriate dépeçage.
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 dépeçage by providing that in the cases described therein,62
issues of vices of consent must be governed by the same law that governs testamentary capac-
ity. The reason for avoiding dépeçage 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 dépeçage 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 Dépeçage 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 1057–60.
63. See Symeonides, Louisiana Exegesis 758–59.
686 Conclusions
liability cases enumerated therein are to be governed by the law of the forum—not only with
regard to the issue of “delictual liability,” but also with regard to “damages, whether compensa-
tory, 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 dépeçage 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 distribu-
tion (Article 3544), and yet another rule for punitive damages (Article 3546). In these cases,
dépeçage may or may not be appropriate, but it is by no means inevitable. As discussed in detail
elsewhere,65 the codification—and especially the escape clause of Article 3547—provides courts
with the means of avoiding an inappropriate dépeçage.
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 codification’s enactment. He found that, prior to the
enactment, the rate at which trial court decisions were reversed by appellate courts was close to
50 percent, which meant that “the trial court’s decision had no more predictive value than flip-
ping a coin.”67 In contrast, after the enactment, the reversal rate dropped to less than 25 percent.
Borchers found these results “hopeful and suggestive that comprehensive conflicts codifications
64. La. Civ. Code art. 3545 (2015).

65. See Symeonides, Louisiana Exegesis 732–35, 748–49.
66. See, e.g., P. Borchers, Louisiana’s 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: A Comparative 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, Louisiana’s 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 Louisiana’s 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, 517–18 (1990); L. Weinberg, A Radically Transformed Restatement for Conflicts,
2015 U. Ill. L. Rev. 1999, 2047-52 (2015); Weintraub, supra note 14.
67. Borchers, supra note 66, at 1068.
The Next Step 687
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 statu-
tory solutions can allow for the reconciliation of predictability and other values in multistate
cases.”70 Although Borchers’s 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 Chapter 8, 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 Chapter 8,
American courts encountering these conflicts have routinely reached the same result by apply-
ing 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 victim’s 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 conduct—unless the state of injury imposes a higher stan-
dard 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 1068–69. See also id. at 1062 (“for the pre-codification cases that I sampled, 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. at 1068.
70. Id. at 1070.
71. See supra 194–201.
72. See La. Civ. Code art. 3544(2)(a) (2015).
73. See supra 204–18.
74. See La. Civ. Code art. 3544(2)(b) (2015).
75. See supra 218–24.
76. See La. Civ. Code art. 3543(1) (2015).
77. See supra 247–49.
78. See La. Civ. Code art. 3543(1)–(2) (2015).
688 Conclusions
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 DRAFT CODE

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. A Draft 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 unre-
lated 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 fol-
lows the model of the Louisiana Code, but it is more comprehensive and more civilian in style.
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 supra 247–49.

80. See Academia Puertorriqueña de Jurisprudencia y Legislacion, Proyecto para la Codificación del
Derecho internacional privado de Puerto Rico (S. Symeonides & A. von Mehren, Rapporteurs, 1991).
For discussion by the drafter, see S. Symeonides, Revising Puerto Rico’s Conflicts Law: A Preview, 28
Columbia J. Transnat’l L. 601, 1990; S. Symeonides, Codifying Puerto Rico’s 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 Revisión y Reforma del Código Civil De Puerto Rico, Libro Séptimo (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. §§ 15.300–15.380 (2015). For a discussion, see J. Nafziger, Oregon’s Conflicts
Law Applicable to Contracts, 38 Willamette L. Rev. 397 (2002); S. Symeonides, Oregon’s Choice-of-
Law Codification for Contract Conflicts: An Exegesis, 44 Willamette L. Rev. 205 (2007) (hereinafter
The Next Step 689
The statute’s first operative section contains unilateral rules providing that forum law gov-
erns 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 state’s contacts and interests predominate, and in which the law of the forum would gov-
ern under almost any choice-of-law theory. In the interest of judicial economy, the statute sin-
gles 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 con-
sent 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 per-
form 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 statute’s 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 determined by:
(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 policies in:
(a) Meeting the needs and giving effect to the policies of the interstate and interna-
tional systems; and
(b) Facilitating the planning of transactions, protecting a party from undue imposi-
tion by another party, giving effect to justified expectations of the parties concern-
ing which state’s 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, 395 P.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).
690 Conclusions
Recognizing that the choice-of-law process contemplated by the above provision can be
both laborious and uncertain, the statute’s next provision, Section 15.380, introduces presump-
tive 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 inap-
propriate”87 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 statute’s general and residual approach.89
a. General Rules
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 per-
son (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 domi-
ciled 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 excep-
tion 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. §§ 15.400–15.460 (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. Int’l L. 201 (2010).
89. Among the statute’s other provisions, Sections 15.410–15.420 provide special rules for characteriza-
tion, 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
statute’s general principles articulated in Section 15.445.
90. For cases reaching this result, see supra 194–201.
The Next Step 691
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 par-
ties 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 par-
ties 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 con-
duct governs, unless the victim formally requests the application of the law of the state
of injury,95 but only if the tortfeasor’s 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 statute’s 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 231–37. If the conduct and the injury occurred in dif-
ferent states (cross-border tort), the case is relegated to subsection (3)(c), which is described in the text,
infra at 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 discussed later.
93. For cases reaching the same result, see supra 204–18.
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 dépeçage. Or. Rev. Stat. §
15.440(3)(c)(B) (2015).
96. For cases reaching the same result, see supra 218–24, 238–47.
97. What makes application of a state’s law “most appropriate” is not the perceived material justness of
that law, but rather that state’s “contacts with the parties the dispute and … [its] policies on the disputed
692 Conclusions
It then prescribes the process or method for achieving that goal. This process consists of:
(1) Identifying the involved states (in addition to the forum state) by examining each
state’s 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 accom-
plishes or impairs these general policies.
The second set includes multistate policies derived from Oregon’s membership in the inter-
state 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 seri-
ous 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 Kegel’s terms, the goal of the
choice-of-law process under the Oregon statute is to find “the spatially best solution” (“conflicts jus-
tice”), 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, 616–17 (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 policy—either in the abstract or in
comparison with the policy of another state—but rather the “strength and pertinence” of the policy at the
multistate level. A legislative 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 Currie’s “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
The Next Step 693
c. Balancing Certainty with Flexibility

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 appro-
priate 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 flex-
ibility. 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 appropri-
ate” 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 fed-
eral 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 discussed supra.
105. See supra 677.
106. Indeed, although the term “soft law” is much more recent than the Restatements, a Restatement is
par excellence “soft law.”
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, articu-
late, 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 Restatement will:
(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 flex-
ibility, 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 prepar-
ing 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, 207–10, 233–36, 259–63, 346–64; see
also S. Symeonides, A New Conflicts Restatement: Why Not?, 5 J. Priv. Int’l L. 383, at 394–97, 405–06
(2009).
109. See Symposium: Preparing for the Next Century—A New Restatement of Conflicts, 75 Ind. L.J.
399–686 (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 pos-
sible new conflicts Restatement, see Symposium, American Conflicts Law at the Dawn of the 21st
Century, 37 Willamette L. Rev. 1–298 (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. 1193–410
(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 12 years (1922–1934). The drafting of the Restatement
(Second) lasted 17 years (1952–1969).
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
The Next Step 695
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 law—namely, jurisdic-
tion, and recognition and enforcement of foreign judgments—where its impact is likely to be
minimal.
Jurisdiction is primarily a matter of constitutional law and secondarily of state and fed-
eral statutory law. It is doubtful that a new Restatement will do much to influence the way the
Supreme Court—at least this Court—reassesses 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 sub-
ject is covered by two other ALI projects—namely, the proposed federal statute113 and the
Restatement (Third) of the Foreign Relations Law,114 the latter of which is already in the pro-
cess 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 reasonably well.
success of the Restatement (Second) in influencing judicial opinion demonstrates—especially when com-
pared to the rather slim judicial following of other alternative choice-of-law methodologies advanced
by academic commentators—courts 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 Juenger—to mention only four
of the giants who are no longer with us—are sufficient to make this point.
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 §§
481–486 (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 new Act.
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.
696 Conclusions
C. FILLING THE GAPS AND UPDATING

THE CONTENT OF THE RESTATEMENT (SECOND)
Because the drafting of the new Restatement is likely to begin—but hopefully not end—with 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 con-
flicts 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 today’s 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 litiga-
tion 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 Restatement’s 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. § 25–21.237 (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 recent years.
120. See supra Chapter 12.
The Next Step 697
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 action cases.
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 con-
flicts. 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 compen-
sating the victim. A choice-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 refer-
ences 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 Restatement’s assumption that inter-
national conflicts do not differ qualitatively from intra-national conflicts, (2) the low number
of international conflicts at the time of the Restatement’s drafting, and (3) the insularity that
characterized American conflicts scholarship at that time.
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 268–69.

124. 28 U.S.C. § 1407 (2015).
125. For a discussion of such conflicts, see supra 249–341.
126. See Restatement (Second) § 171 cmt. d ( (providing that this section applies to “exemplary damages”).
127. Like many other sections in the Second Restatement’s 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. See id.
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, 305–21 (2015); S. Symeonides, Choice of Law in the American Courts in
2013: Twenty-Seventh Annual Survey, 62 Am. J. Comp. L. 223, 281–96 (2014); S. Symeonides, Choice of
698 Conclusions
also reflected in the creation of new courses on transnational litigation, and an equally dra-
matic 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 this gap.
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 Restatement’s most successful, and popular, pro-
visions. 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, 357–67 (2012);
S. Symeonides, Choice of Law in the American Courts in 2010: Twenty-Fourth Annual Survey, 59 Am.
J. Comp. L. 303, 306–20 (2011); S. Symeonides, Choice of Law in the American Courts in 2009: Twenty-
Third Annual Survey, 58 Am. J. Comp. L. 227, 202–304 (2010); S. Symeonides, Choice of Law in the
American Courts in 2008: Twenty-Second Annual Survey, 57 Am. J. Comp. L. 269, 317–29 (2009).
131. Reimann, supra note 128, at 581.
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, at 581.
134. Id. at 583.
135. See EEC Convention on the Law Applicable to Contractual Obligations 1980, O.J. (L 266).
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 Int’l Privaatrecht 191–205 (2010).
137. See U.C.C. § 1-302 (2001 Revision) (withdrawn in 2009).
138. Restatement (Second) § 187 ( (emphasis added).
The Next Step 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 issue”140 (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 “con-
tractual 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 par-
ties use clear language expressing such an intent. At the same time, these cases tend to scruti-
nize 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 Union’s Rome II Regulation allows pre-dispute choice-of-law agreements for non-
contractual 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 manda-
tory 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, especially—but not only—when 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 406–09.

141. Article 3 of The Hague Principles on Choice of Law in International Commercial Contracts autho-
rizes 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 pro-
vides 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 391–400.
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,
215–17 (2008).
146. See supra 442–60.
147. See Arts. 5(1) and 6 of The Hague Convention on Choice of Court Agreements (2005).
700 Conclusions
D. BREAKING THE SITUS TABOO

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 sur-
prisingly, most of them are found in the area that the Restatement (Second) calls “Property”148—
which includes successions and marital property—and 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 exempli-
fies, 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 mat-
ters 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 doing so.
E. FINDING THE GOLDEN MEDIUM

BETWEEN CERTAINTY AND FLEXIBILITY
The new Restatement should seek a new and proper equilibrium between the perpetually con-
flicting 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
148. See Restatement (Second) §§ 222–266.

149. See id. §§ 222–243. For other black-letter rules, see id. §§ 245–255 (inter vivos transactions involving
movables); §§ 260–265 (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, 225–232, 236, 239–242. The above quoted phrase is often accompanied by
the prediction that these courts will “usually” apply their own law.
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. §§ 241–242 (addressing interest of surviving
spouse).
155. See supra 617–19.
156. For the perpetual tension between these needs in international conflicts law, see S. Symeonides,
Codifying Choice of Law 171–217.
The Next Step 701
through its “near-rules,” “pointers,” or “non-rules.”157 A new 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 con-
tract 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 per-
mit the development of “more definite”160 or “precise”161 choice-of-law rules. As the discussion
in Chapter 8 demonstrates, Reese’s 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 expe-
rience 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 Beale’s Restatement, we know what to avoid—broad, 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 for—narrow, 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 113–15.

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. at 519.
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 227–29, 247–49.
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 1–34.
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. 26–30.
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 flex-
ibility, or between prefabricated mechanical prescriptions and ad hoc individualized dispensa-
tions.165 It is possible to have our cake and eat it too—namely, 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
Restatement’s 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 dépeçage, see S.
Symeonides, Issue-by-Issue Analysis and Dépeçage 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, 394–404.
169. For a discussion of how to define these cases, see id. 409–11, 437. See also Symeonides, Codifying
Choice of Law, 285–88.
170. For a discussion of the need for such escapes, see Symeonides, Choice-of-Law Revolution 415–19.
For a comparison with the much tighter escapes found in European codifications, see S. Symeonides, The
The Next Step 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
Leflar’s 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 cumu-
lative 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 subservi-
ent 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 “choosing well.”
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 method-
ological 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 jus-
tice” 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 coordi-
nated with each other, ideas derived from different schools can produce a much better system
than any school alone.
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 pre-
cise content and shape of these rules, and of the new Restatement in general. However, such dis-
agreements 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 1773–82 (2008).
171. For the differences, see Symeonides, Choice-of-Law Revolution 394–404 (Cavers), 369–84, 389–94
(Currie), 404–11 (Leflar).
AP P ENDI X
List of Choice-of-Law Codifications, EU

Regulations, and Conventions
I. CODIFICATIONS
Afghanistan: Civil Code of the Republic of Afghanistan, arts. 3–35 (1977).

Albania: Law No. 10428 of 2 July 2011 on Private International Law.
Algeria: Algerian Civil Code, arts. 9– 24, as amended by Ordinance No. 75- 58 of 26
September 1975.
Angola: Civil Code of Angola, arts. 14–63, Law-Decree 496 of 25 November 1977.
Argentina: Anteproyecto de Código Civil y Commercial de la Nación (2012) by Commisión
de Reformas decreto presidencial 191/2011, arts. 2594–2671.
Armenia: Civil Code of Armenia as adopted in 1998, Division 12, arts. 1253–1293.
Austria: Bundesgesetz vom 15. 6. 1978 über das internationale Privatrecht, as subsequently
amended.
Azerbaijan: Law of 6 June 2000 on Private International Law.
Belarus: Civil Code of Belarus (Law of 7 December 1998, as amended as of December 28,
2009), arts. 1093–1136.
Belgium: Code de droit international privé (Loi du 16 juillet 2004).
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 of 2007).
Burkina Faso: Code of Persons and Family, arts. 988– 1050 (Law VII 0013 of 19
November 1989).
Burundi: Code of Persons and Family, arts. 1–10, 94 (Decree-Law No. 1/1 of 15 January 1980
as revised by Decree-Law No. 1/024 of 28 April 1993).
705
706 Appendix
Cape Verde: Civil Code of Cape Verde, arts. 14–63, 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. 38–45.
Chad: Ordinance No. 6 of 21 March 1967 for the Reform of Judicial Organization, arts. 70–72.’
China: Statute of Application of Law to Foreign Civil Relations, adopted at the 17th session
of the Standing Committee of the 11th National People’s 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. 23–30, as revised by Law No. 7020 of 6 January 1986.
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. 11–21, adopted by Law No. 59 of 16 July 1987.
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. 13–62, re-enacted by Law No. 10/2011 of 14
September 2011.
Ecuador: Ecuador Civil Code as revised by Law of 10 May 2005, arts. 13–17, 43, 91–93, 103,
129, 137, 139, 1019, 1057–1058, 1087–1089, and 2337.
El Salvador: Civil Code of El Salvador, arts. 14–18, 53–55, 617, 740, 966, 994–995, 1021,
1333, and 2160, as revised by Law-Decree No. 724, 30/09/1999.
Estonia: Private International Law Act of 27 March 2002.
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
July 2007.
Gabon: Civil Code arts. 25–77 (Law No. 15/1972 of 29.7.1972 adopting Part I of Civil Code).
Georgia: Act No. 1362 of 29 April 1998 on Private International Law.
Germany: Gesetz zur Neuregelung des IPR vom 25.7.1986; Gesetz zum IPR für außervertra-
gliche Schuldverhältnisse und das Sachenrecht vom 21.5.1999.
Guatemala: Ley del Organism Judicial, arts. 21–35 (Decreto 2-89, of 18.3.1989).
Guinea-Bissau: Civil Code of Guinea-Bissau, arts. 14–65, re-enacted by Guinea-Bissau Law
No. 1/73 of 27 September 1973.
Hungary: Law-Decree No. 13 of 1979 on Private International Law.
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 of Laws.
Jordan: Jordanian Civil Code of 1 August 1976, arts. 1–3, 11–29.
Kazakhstan: Civil Code of the Republic of Kazakhstan, arts. 1158–1124, enacted by Law No.
409-1 ZRK of July 1, 1999.
Korea (North): The Law of the Democratic People’s Republic of Korea on External Civil
Relations, adopted by Resolution No. 62 of the Standing Committee of the Supreme People’s
Assembly on September 6, 1995, and amended by Decree No. 251 of the Presidium of the
Supreme People’s Assembly on December 10, 1998;
Appendix 707
Korea (South): Law 6465 of 7 April 2001, Amending the Conflict of Laws Act of the Republic
of Korea.
Kyrgyzstan: Law of 5 January 1998 revising Civil Code arts. 1167–1208.
Latvia: Latvian Civil Code (1993), arts. 8–25.
Liechtenstein: Private International Law Act of 1996.
Lithuania: Civil Code of the Republic of Lithuania of 2000, arts. 1.10–1.62.
Louisiana: Book IV of the Louisiana Civil Code, enacted by La. Act No. 923 of 1991.
Macau: Civil Code of Macau, arts. 13–62, Approved by Law-Decree No. 39/99 of 3 August 1999.
Madagascar: Arts. 20–35, Ordonnance No. 62-041 du 19 septembre 1962 relative aux dispo-
sitions générales de droit interne et de droit international privé, complétée par la loi no. 98-
019 du 2 décembre 1998.
Mauritania: Code des Obligations et des Contrats, arts 6–11 (Ordonnance no. 89-126 du 14
septembre 1989).
Mexico: Arts. 12–15, 29–34, 2736–2738 of Civil Code for the Federal District in Ordinary
Matters and for the Entire Republic in Federal Matters, as amended by Decree of 11
December 1987.
Moldova: Moldova Civil Code (Law 1107 of June 6, 2002), arts. 1578–1625.
Mongolia: Mongolian Civil Code, arts. 539–552, 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. 14–65, enacted by Portuguese Ordinance No.
22,869 of 4 September 1967.
Netherlands: Act of 19 May 2011 adopting and implementing Book 10 (Private International
Law) of the Dutch Civil Code.
Oregon: Or. Rev. Stat. §§ 15.300—15.380 (2001); Or. Rev. Stat. §§ 15.400B15.460 (2009).
Panama: Panama Civil Code, arts. 1, 5–8, 631–632, 765–770, as revised by Law No. 18 of 1992.
Paraguay: Civil Code of Paraguay as revised by Law No. 1183 of 18 December 1985, arts.
11–26, 101, 132–136, 163–167, 177–178, 297, 699, 1196, 1199, 2184, 2447–2448, 2609, and
2626; Law 5393 of 2015 Regarding the Applicable Law to International Contracts.
Peru: Peruvian Civil Code of 1984, Book X, arts. 2046–2111.
Poland: Act of Private International Law of 4 February 2011.
Portugal: Portuguese Civil Code, arts. 14–65, as revised in 1966 and subsequently.
Puerto Rico: Proyecto de Ley para la Revisión y Reforma del Código Civil De Puerto Rico,
Libro Séptimo (Derecho Internacional Privado), 25 de mayo 2002.
Qatar: Arts. 10–38 of the Civil Code of Qatar, as amended by law 22/2004 of 8 August 2004.
Quebec: L.Q. 1991, ch. 64, composing Book Ten of the Quebec Civil Code (arts. 3076–3168).
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. 1186–1224, enacted by Federal law
no. 146 of 26 November 2001.
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. 840–854, Law No. 76-61 of June 1972.
Serbia: Serbian Ministry of Justice Draft of July 20, 2012 on Private International Law Code.
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 June 1999.

Somalia: Civil Code of Somalia, arts. 10–28, Law no. 37 of 2 July 1973.
Spain: Spanish Civil Code, arts. 8–16, as revised in 1974 and subsequently.
Sudan: Civil Code of Sudan, arts. 10–16, 655, 684, Law of 24 May 1971 as amended by Law
of 14 February 1984.
Switzerland: Bundesgesetz über das Internationale Privatrecht (IPRG) vom 18. Dezember
1987—Loi féderale sur le droit international privé (LDIP) du 18 décembre 1987.
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. 1191–1234, enacted by Law No. 3
of March 1, 2005.
Tunisia: Code of Private International Law (Law No. 98-97 of 27 November 1998).
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.
1–3, 10–18.
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 (c 42).
Uruguay: Proyecto de Ley General de Derecho Internacional Privado, 19.1.2009
Uzbekistan: Civil Code of the Republic of Uzbekistan, arts. 1158–1199, enacted by Law 257-I
of 29.08.1996.
Venezuela: Act of 6 August, 1998 on Private International Law.
Vietnam: Civil Code of the Socialist Republic of Vietnam of 1995, Arts. 826–838.
Yemen: Law of 29 March 1992 on Private International Law.
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 September 1988.
Brussels I Regulation: 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 matri-
monial 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 I Regulation: 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).
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 (Rome II).
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 succes-
sion 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 of Goods.
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 of Cases
Alphabetization is in letter-by-letter order (e.g., “Greenbaum” precedes “Green Giant Co.”).
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, 573nn118–119
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), reh’g denied (July 26, 2005),
review denied (Oct. 19, 2005) … 403, 403nn354–356, 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, 530nn37–39
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), reh’g 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 of party
Advanced Bionics Corp. v. Medtronic, Inc., 59 P.3d 231 (Cal. 2002) … 419n432, 420, 420n441
Advanced Bionics Corp. v. Medtronic, Inc., 105 Cal. Rptr. 2d 265 (Cal. Ct. App. 2001) … 421nn442–444
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, 486nn319–321
713
714 Table of Cases
Aggarao v. MOL Ship Mgmt. Co., No. Civil CCB-09-3106, 2014 WL 3894079 (D. Md. Aug. 7,
2014) … 486nn322–323
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 Int’l Airport, Denver, Colo., on Nov. 15, In re, 720 F. Supp. 1445 (D.
Colo. 1988) … 242n357, 253, 253n414, 253nn416–418, 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, 261nn470–471
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, 248 P.3d 94 (Wash. Ct. App. 2011) … 555n11, 575, 575nn125–127
Alaska Airlines, Inc. v. Lockheed Aircraft Corp., 430 F. Supp. 134 (D. Alaska 1977) … 401n350
Alaska Packers Ass’n v. Industrial Accident Comm’n, 294 U.S. 532 (1935) … 24, 24n38, 99n34
Albemarle Corp. v. AstraZeneca UK Ltd., 628 F.3d 643 (4th Cir. 2010) … 451, 451nn94–96, 452n97,
452n99, 455, 455n122
Albert Trostel & Sons Co. v. Emp’rs 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, 80nn85–87, 81nn88–89, 612, 612nn130–134
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), reh’g 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. Lloyd’s 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, 25nn46–51, 26nn52–61,
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, 664nn313–314,
665nn315–317
Altmann v. Republic of Austria, 317 F.3d 954 (9th Cir. 2002), amended on denial of reh’g, 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, 567nn89–90
Aluminum Co. of Am.; United States v., 148 F.2d 416 (2d Cir. 1945) … 626n4, 644n149, 645, 645n153,
645nn156–157
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) … 651nn200–201, 651n203
Alves v. Siegel’s 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, 636nn76–78
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,
467nn201–207, 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, reh’g 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. Farmer’s 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. Ass’n v. Garamendi, 539 U.S. 396 (2003) … 7n25, 32, 32n98, 33, 33nn104–113, 34n117
American Ins. Co. v. Frischkorn, 173 F. Supp. 2d 514 (S.D.W. Va. 2001) … 403, 403n358,
403nn360–363, 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, 75nn54–56,
77n66, 143n71, 675n17
American Nat’l Fire Ins. Co. v. Conestoga Settlement Trust, 442 S.W.3d 589 (Tex. App. 2014), petition
for review filed (Oct. 13, 2014) … 518n135
American Nat’l Fire Ins. Co. v. Farmers Ins. Exch., 927 P.2d 186 (Utah 1996) … 138n56, 149n17, 152n26
American Nonwovens, Inc. v. Non Wovens Eng’g, 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
America’s 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 Mem’l 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, 542nn127–131, 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, reh’g & reh’g 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, 635nn74–75
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) … 263nn481–482, 264,
264n487, 280n23, 295, 295nn117–118
716 Table of Cases
Application Group, Inc. v. Hunter Group, Inc., 72 Cal. Rptr. 2d 73 (Cal. Ct. App. 1998) … 418,
418nn427–429, 419nn430–432
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, 631nn43–44, 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, 215nn217–219
Ardoyno v. Kyzar, 426 F. Supp. 78 (E.D. La. 1976) … 222nn252–253, 243n357, 253n413
Arias v. Figueroa, 930 A.2d 472 (N.J. Super. App. Div. 2007) … 240n335
Armstrong v. Armstrong, 441 P.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,
351nn54–55
Asbestos Removal Corp. v. Guaranty Nat. Ins. Co., 48 F.3d 1215 (4th Cir. 1995) … 503n53
Ash v. S.S. Mullen, Inc., 261 P.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,
423nn461–462
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,
241nn350–352
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, 133–134, 133nn41–44, 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, 589nn42–46, 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. P’ship, 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
Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279 (N.Y. 1963) … 61n74, 124, 124n6, 124nn8–10,
125, 125n12, 126, 126nn13–14, 127, 128n20, 153, 153n32, 155, 156, 157, 163n88, 179, 179nn8–12,
180n15, 187, 194n75, 231nn284–285, 271, 271nn519–520
Table of Cases 717
Baby E.Z., In re Adoption of , 266 P.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, 852 P.2d 44 (Haw. 1993) … 558n24
Baffin Land Corp. v. Monticello Motor Inn, Inc., 425 P.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 Int’l, 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,
591nn51–57, 592, 592nn58–60, 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 Comm’n of Mont., 436 U.S. 371 (1978) … 31n88
Baldwin v. Iowa State Traveling Men’s Ass’n, 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, 665nn322–323, 666nn324–327
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, 35nn122–124
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, reh’g denied (5th Cir. 1990) … 90n144
Banuelos Rios v. Ford Motor Co., 2006 WL 2950474 (D. Or. Oct. 16, 2006) … 294, 294nn110–111
Barba v. Carlson, 2014 WL 1678246 (Del. Super. Apr. 8, 2014) … 262n475, 266n505, 285n56
Barkanic v. General Admin. of Civil Aviation of People’s 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, 73nn47–48, 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, 396nn320–322
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, 638nn92–94
Berle v. Berle, 546 P.2d 407 (Idaho 1976) … 606n102
Bernal v. Charter Cnty. Mut. Ins. Co., 209 P.3d 309 (Okla. 2009) … 142n64, 346n25
Bernhard v. Harrah’s Club, 546 P.2d 719 (Cal.), cert. denied, 429 U.S. 859 (1976) … 130n22, 164n97,
165, 165n109, 166nn113–117, 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., 5 P.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, 233nn295–296
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., 1 P.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) … 9nn34–35, 209, 209nn178–179,
210nn180–182
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, 207nn157–159,
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. Ass’n, 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, 390nn284–285
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, 226nn271–273
Bodoff v. Islamic Republic of Iran, 424 F. Supp. 2d 74 (D.D.C. 2006) … 268n512, 630n37
Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624 (7th Cir. 2010) … 90n142, 91n147,
91nn148–149, 92n150
Bohannan v. Allstate Ins. Co., 820 P.2d 787 (Okla. 1991) … 141n63, 346n25
Boland v. George S. May Int’l. Co., 969 N.E.2d 166 (Mass. App. Ct. 2012) … 437n6, 445, 445nn61–62
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, 235nn306–308
Bonny v. Society of Lloyd’s, 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, 627nn16–19
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, 321 P.3d 1001 (Okla. Civ. App. 2014) … 618, 618nn161–163
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 Int’l, 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 Pete’s, Inc., 702 P.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, 438nn14–21, 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, 525 P.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 Commc’ns, Inc., 12 N.E.3d 299 (Ind. Ct. App.), transfer denied, 18 N.E.3d 1005 (Ind.
2014) … 403n359, 404, 404nn364–366, 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, 237nn320–321
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,
305nn176–177
Brown v. MHN Gov’t Services., Inc., 306 P.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, 416nn417–419
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, 703 P.2d 1190 (Ariz. 1985) … 243n357, 259n459
Bryant v. Wyeth, 879 F. Supp. 2d 1214 (W.D. Wash. 2012) … 254n424, 305, 305nn180–181
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, 224nn260–263
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., 93 P.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,
326nn317–318
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., 468 P.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 Commc’ns 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
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, 274 P.3d 859 (Or. Ct. App. 2012), review denied, 352 Or. 377 (Sept. 13,
2012) … 534, 534nn72–73
Cagle v. James St. Group, 2010 WL 4250008 (10th Cir. Oct. 28, 2010) … 395n304
Cagle v. Mathers Family Trust, 295 P.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 Int’l 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, 281nn28–30
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, 255 P.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
Cárdenas 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, 427nn495–497
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991) … 438, 438nn22–23, 439, 439nn26–28, 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 Int’l, Inc., 466 F.3d 558 (7th Cir. 2006) … 231n288, 236, 236nn315–316
Carroll v. Lanza, 349 U.S. 408 (1955) … 24n41
Carroll v. MBNA Am. Bank, 220 P.3d 1080 (Idaho 2009) … 426, 426nn476–481
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, 886 P.2d 931 (Mont. 1994), rev’d, 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. & Eng’g Co., 428 P.2d 898 (Or. 1967) … 128n19, 206n149, 207, 207nn155–156
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 Commc’ns & 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., 773 P.2d 1143 (Idaho 1989) … 449n81, 455, 455nn128–129
Certain Underwriters at Lloyd’s, 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, 511nn93–98
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. O’Neil 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. Int’l Corp., 163 S.W.3d 537 (Mo. Ct. App. 2005) … 91n146
Chang v. Baxter Healthcare Corp., 599 F.3d 728 (7th Cir.), reh’g & reh’g 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, 733 P.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, 253 P.3d 153 (Wyo. 2011) … 558, 558nn22–23, 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,
205nn141–142, 206, 206nn143–144, 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), reh’g denied (Nov. 30, 2006) … 463, 463nn173–174
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, 198nn110–111,
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, 530nn40–46, 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 opposing party
CompuCredit Corp. v. Greenwood, __U.S. __, 132 S. Ct. 665 (2012) … 466, 466nn193–194, 467
Computer Sales Int’l, 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. Moody’s 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., 212 P.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, 158nn57–58, 159, 159nn59–
60, 159nn63–66, 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,
314nn239–241
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 Int’l, Inc. v. Aerojet-General Corp., 825 F. Supp. 795 (W.D. Mich. 1993) … 505n64
CPC Int’l, Inc. v. Northbrook Excess & Surplus Ins. Co., 46 F.3d 1211 (1st Cir. 1995) … 505n64
CPC Int’l, Inc. v. Northbrook Excess & Surplus Ins. Co., 839 F. Supp. 124 (D.R.I. 1993) … 505n64
CPS Int’l, 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, 470nn226–227
Cribb v. Augustyn, 696 A.2d 285 (R.I. 1997) … 148, 148nn5–7, 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, 430nn506–507
Cropp v. Interstate Distrib. Co., 880 P.2d 464 (Or. Ct. App. 1994) … 531, 532, 532nn53–55
Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) … 32n98
Crossley v. Pacific Emp’rs 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,
388nn268–270
Csulik v. Nationwide Mut. Ins. Co., 723 N.E.2d 90 (Ohio 2000) … 496n16
Cuesta v. Ford Motor Co., 209 P.3d 278 (Okla.), cert. denied, 558 U.S. 877 (2009) … 346n25
Cummings v. Club Mediterranée, 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, 637nn86–89, 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,
290nn88–92
Cuthbertson v. Uhley, 509 F.2d 225 (8th Cir. 1975) … 526n20
CXY Chems. U.S.A. v. Gerling Global Gen’l 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
Dabbs v. Silver Eagle Mfg. Co., 779 P.2d 1104 (Or. App.), review denied, 784 P.2d 1101 (Or.
1989) … 301n150, 306, 306nn191–192
D’Agostino v. Johnson & Johnson, Inc., 628 A.2d 305 (N.J. 1993) … 241, 241nn343–347
Dahiya v. Talmidge Int’l Ltd., 931 So. 2d 1163 (La. Ct. App. 2006), reh’g denied (June 30, 2006) … 464n180
Daimler AG v. Bauman, 134 S. Ct. 746 (2014) … 29n76
Dalip Singh Bir’s Estate, In re, 188 P.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, 42nn162–163
D.B., Ex parte, 975 So. 2d 940 (Ala. 2007) … 579n147
DCS Sanitation Mgmt., Inc. v. Casillo, 435 F.3d 892 (8th Cir.), reh’g & reh’g 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, 304nn174–175
Delfuoco v. K-Mart Corp., 817 N.E.2d 339 (Mass. App. Ct. 2004) … 540n111
Del Monte Fresh Produce (Hawaii), Inc. v. Fireman’s Fund Ins. Co., 183 P.3d 734 (Haw. 2007) … 505n64
DeLoach v. Alfred, 960 P.2d 628 (Ariz. 1998) … 540n107, 540n115, 541nn117–118, 541nn120–122,
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, reh’g denied en banc, 137 F.3d 1353 (5th Cir. 1998) … 319,
319n272, 319nn274–275
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.), rev’d, 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, 886 P.2d 777 (Idaho 1994) … 197n96, 540n109
Dion v. Rieser, 285 P.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, 113 P.3d 1100 (Cal. 2005) … 465n189
Discover Group, Inc. v. Lexmark Int’l, 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. Ass’n 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, 161 P.3d 1016 (Wash. 2007) … 422n455
Docksider, Ltd. v. Sea Tech., Ltd., 875 F.2d 762 (9th Cir. 1989) … 437n6
Doctor’s 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, 286nn65–66, 287nn67–70
Doe v. See name of opposing party
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., 18 P.3d 608 (Wash. Ct. App. 2001) … 71n36
Donjuan v. McDermott, 266 P.3d 839 (Utah 2011) … 579n147
Donlan v. State, 249 P.3d 1231 (Nev. 2011) … 83n105
Donlann v. Maggurn, 55 P.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, 310nn207–208
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, 292nn101–102
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, rev’d, 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), reh’g denied (Feb. 19, 2010) … 555n10
Dym v. Gordon, 209 N.E.2d 792 (N.Y. 1965) … 155n44
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, 143 P.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, 161nn77–79, 162nn80–82,
196n92, 227, 227n274, 227nn276–278
EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991) … 634n65, 646, 646nn162–165
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,
356nn79–84, 356nn86–87, 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,
247nn393–394
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, 238nn326–328
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, 289 P.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 Int’l, Inc., 375 F. Supp. 2d 500 (S.D. Miss. 2005) … 503n53
Energy Claims Ltd. v. Catalyst Inv. Group Ltd., 325 P.3d 70 (Utah 2014) … 448, 448n74, 448n77, 453,
453n104, 462nn166–168
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) … 450nn87–89, 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, 76nn57–58, 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, 39nn145–146, 40, 41, 549, 551, 659
Erny v. Estate of Merola, 792 A.2d 1208 (N.J. 2002) … 212n195
Erwin v. Thomas, 506 P.2d 494 (Or. 1973) … 207n156, 211, 211n189, 211nn191–192, 212n194
Esser v. McIntyre, 661 N.E.2d 1138 (Ill. 1996) … 149n18, 195n77
728 Table of Cases
Estate of. See name of estate; name of party

Estee Lauder Co. v. Batra, 430 F. Supp. 2d 158 (S.D.N.Y. 2006) … 420, 420n437, 420nn439–440
Estin v. Estin, 334 U.S. 541 (1948) … 569n94
Etheredge v. Genie Indus., Inc., 632 So. 2d 1324 (Ala. 1994) … 294, 294nn112–113
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 of party
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), reh’g denied (Feb. 27, 2015) … 371n183,
417, 417n420, 417nn422–425, 418n426
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) … 583nn15–16, 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, 259nn459–460
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, 550nn171–174, 551nn175–177
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., 188 P.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, 649nn184–189,
650, 650nn190–191
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., 880 P.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-415 … 525n9
First Interregional Equity Corp. v. Haughton, 842 F. Supp. 105 (S.D.N.Y. 1994) … 490n347
First Nat’l Bank in Fort Collins v. Rostek, 514 P.2d 314 (Colo. 1973) … 130n23, 151n24, 195n75
First Nat’l Bank of Mitchell v. Daggett, 497 N.W.2d 358 (Neb. 1993) … 400n344
Fiser v. Dell Comput. Corp., 188 P.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., 303 P.3d 814 (N.M. 2013) … 469, 469n219
Flomo v. Firestone Nat’l 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,
515nn115–116
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 Int’l, 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 Commc’ns, Inc., 805 A.2d 1007 (D.C. 2002) … 397n326
Forsman v. Forsman, 779 P.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, 168nn134–136, 169nn137–140,
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, 346nn26–27, 346n30, 347nn31–33
Fru-Con Constr. Corp. v. Controlled Air, Inc., 574 F.3d 527 (8th Cir. 2009) … 440n40, 448n73
Fruin-Colnon Corp. v. Missouri Hwy. Transp. Comm’n, 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. Adm’r v. Sullivan, 753 So. 2d 549 (Fla. 1999) … 540n108
Funderburke v. N.Y.S. Dep’t 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
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, 240nn339–342
Galapagos Corp. Turistica “Galatours,” S.A. v. Panama Canal Comm’n, 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), reh’g denied, (June 22,
2006) … 535n76
Gantes v. Kason Corp., 679 A.2d 106 (N.J. 1996) … 165, 165n103, 165nn105–106, 302, 302n151,
302nn154–158, 303, 303nn159–164, 306, 312, 312n224, 535n75, 536, 536nn83–91, 537nn92–93
Garcia v. General Motors Corp., 990 P.2d 1069 (Ariz. App. Div. 1 1999), review denied (Jan. 4,
2000) … 234n301, 324, 324nn308–310
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, 177 P.2d 461, reh’g denied, 178 P.2d 380 (Nev. 1947) … 88n132
General Accident Ins. Co. v. Mortara, 101 A.3d 942 (Conn. 2014) … 499, 499n32
General Ceramics Inc. v. Firemen’s 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 Eng’g 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,
324nn311–312, 325nn313–315
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, 390nn278–280
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,
34nn115–116
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.), reh’g 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, 161nn73–76, 226n270
Gilbert Spruance Co. v. Pennsylvania Mfrs. Ass’n Ins. Co., 629 A.2d 885 (N.J. 1993) … 149n18,
173n166, 505, 505nn63–64, 506, 506nn65–68, 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,
529nn33–35, 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 Nat’l Ass’n, 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, 264 P.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 Int’l, 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 Entm’t 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, 495nn9–11, 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. Christie’s, Inc., 1999 WL 673347 (S.D.N.Y. 1999) … 586n30
Green v. U.S. Auto. Ass’n Auto & Prop. Ins. Co., 756 S.E.2d 897 (S.C. 2014) … 499, 499nn26–29
Greenbaum v. Islamic Republic of Iran, 451 F. Supp. 2d 90 (D.D.C. 2006) … 268n512, 630n37
Green Giant Co. v. Tribunal Superior, 104 P.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, 311nn220–221
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), reh’g & reh’g 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, 653nn217–221, 654nn222–224
Grover v. Isom, 53 P.3d 821 (Idaho 2002) … 206n149
Grupo Televisa, S.A. v. Telemundo Commc’ns 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, rev’d in
part, 269 U.S. 71 (1925) … 94n8
Gund III v. Philbrook’s 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), reh’g denied (Aug. 25,
2010) … 402n350
Guray v. Tacras, 194 P.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
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, 315nn251–252, 316, 316nn253–254,
316n258, 317nn260–261
Hall v. Sprint Spectrum LP, 876 N.E.2d 1036 (Ill. App. Ct.), reh’g denied (Aug. 8, 2007), appeal denied,
226 Ill. 2d 614 (Ill.), cert. denied, 555 U.S. 814 (2008) … 423, 423n464, 424nn465–466
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, 209nn175–176
Hambrecht & Quist Venture Partners v. American Med. Int’l, Inc., 46 Cal. Rptr. 2d 33 (Cal. Ct.
App. 1995) … 402, 402nn352–353, 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, 260nn465–467,
314n243
Harodite Indus., Inc. v. Warren Elec. Corp., 24 A.3d 514 (R.I. 2011) … 535n81, 537, 537nn94–97
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,
468nn213–214
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., 938 P.2d 1281 (Kan.), cert. denied,
522 U.S. 951 (1997) … 345n21, 514, 514nn110–111
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, 243nn359–360, 634n65, 646, 646n168,
647nn170–171, 647nn173–175, 648nn176–179, 657n248
Harvell v. Goodyear Tire & Rubber Co., 164 P.3d 1028 (Okla. 2006), reh’g 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. Int’l, Inc., 282 P.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, 535nn74–75
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, 643nn136–137,
644n145, 669, 669nn344–345, 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, 313nn235–236
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, 887 P.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), reh’g en banc, 785 F.3d 117 (5th Cir. 2015) … 242n353,
654nn225–228
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, 507nn75–76, 509, 509nn85–87
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, 820 P.2d 316 (Ariz. App. 1991) … 244, 244n368, 244nn370–371
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, 358nn95–97
Holeman v. National Bus. Inst., Inc., 94 S.W.3d 91 (Tex. App. 2002), reh’g overruled (Nov. 7, 2002),
review denied (Mar. 6, 2003), reh’g 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, 500nn33–35
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 Nat’l, Inc., 708 F. Supp. 1573 (D. Wyo. 1989) … 229n282, 256, 256nn442–444
Houseboat Store, LLC v. Chris-Craft Corp., 692 S.E.2d 61 (Ga. Ct. App. 2010) … 448n74
Household Int’l, 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 Emp’t Servs., 801 A.2d 987 (D.C.
2002) … 556n15, 557n21
Hugel v. Corporation of Lloyd’s, 999 F.2d 206 (7th Cir. 1993) … 448n73
Hughes v. Fetter, 341 U.S. 609 (1951) … 28n70
Hughes v. Hughes, 573 P.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 People’s Libyan Arab Jamahiriya, 474 F. Supp. 2d 19 (D.D.C. 2007) … 630n37
Hurtado v. Superior Court, 522 P.2d 666 (Cal. 1974) … 211, 211n190, 214, 214nn210–213
Hussemann ex rel. Ritter v. Hussemann, 847 N.W.2d 219 (Iowa 2014) … 611, 611nn125–129
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
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, 395nn309–310, 396nn311–
313, 405n373
Indussa Corp. v. S.S. Ranborg, 377 F.2d 200 (2d Cir. 1967) … 476nn261–262
Industrial Comm’n 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 of party
Instructional Sys., Inc. v. Computer Curriculum Corp., 614 A.2d 124 (N.J. 1992) … 426, 426n488,
427nn489–492
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, 399nn335–336
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 Int’l 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, 638nn100–101,
639n102
International Shoe Co. v. Washington, 326 U.S. 310 (1945) … 29, 29nn73–74, 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 Commc’ns 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), reh’g 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, 256nn445–447
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
Jackson v. Chandler, 61 P.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, 254nn419–423
Jackson Nat’l 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, 106 P.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, 359nn100–101,
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., 208 P.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, 215nn214–215
Jiffy Lube Int’l, Inc. v. Jiffy Lube of Pa., 848 F. Supp. 569 (E.D. Pa. 1994) … 395, 395nn305–307
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, 234nn302–305,
297n131
Johnson v. Johnson, 216 A.2d 781 (N.H. 1966) … 196n90
Johnson v. Muelberger, 340 U.S. 581 (1951) … 22n30
Johnson v. Pischke, 700 P.2d 19 (Idaho 1985) … 131n28, 151n24, 197n94
Johnson v. Ranch Steamboat Condo. Ass’n, 1999 WL 184068 (N.D. Ill. 1999) … 292n99
Johnson v. Spider Staging Corp., 555 P.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
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, 165nn107–108, 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), reh’g 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 Int’l, Inc., 322 F. Supp. 2d 224 (E.D.N.Y. 2004) … 489n341
Karl Koch Erecting Co. v. New York 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., 137 P.3d 914 (Cal. 2006) … 164n97, 166, 166n110, 166n119,
167nn120–126, 245, 245nn377–383
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, 419nn433–436
Keeton v. Hustler Magazine, Inc., 549 A.2d 1187 (N.H. 1988) … 525, 525n8, 525nn10–16, 527,
541n119
Keller; State v., 19 P.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, 263nn483–486,
264, 264n489, 280, 280nn17–22, 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,
520nn148–149
Kent v. Nationwide Prop. & Cas. Ins. Co., 844 A.2d 1092 (Del. Super. 2004) … 497n17
Kentucky Nat’l 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), reh’g 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. Ass’n, 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) … 660nn275–277, 661nn278–289,
662, 662nn290–292, 662n294, 663, 663n303, 664, 665, 666, 666n326
Kipin Indus. v. Van Deilen Int’l, Inc., 182 F.3d 490 (6th Cir. 1999) … 387n267, 390, 390nn285–286
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, 41nn158–159, 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 Int’l, 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, 169 P.3d 1025 (Kan. 2007) … 577, 577n137, 577nn139–142
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, 356nn84–85
Kowalewski, In re Marriage of, 182 P.3d 959 (Wash. 2008) … 615, 615nn144–146
Kramer v. Acton Toyota, Inc., 18 Mass. L. Rptr. 457, 2004 WL 2697284 (Mass. Super. Nov. 2,
2004) … 293, 293nn103–105
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 Int’l 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,
460nn148–153
Kuehn v. Children’s Hosp., L.A., 119 F.3d 1296 (7th Cir. 1997) … 180n19, 219n238, 220,
220nn244–246, 221
Kukoly v. World Factory, Inc., 2007 WL 1816476 (E.D. Pa. June 22, 2007) … 250n409, 264, 264nn488–
492, 280n24, 286, 286n59, 286nn62–64
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
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, 305nn177–178
Laconis v. Burlington Cnty. Bridge Comm’n, 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. 111 P.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. Vincent’s Hosp. of N.Y., 802 N.Y.S.2d 476 (N.Y. App. Div. 2005) … 565, 565n70,
565nn73–76
Langan v. St. Vincent’s 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, 71nn34–35
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,
642nn128–133, 643, 643n141, 644nn142–145, 644n148, 669, 669n344, 670, 670n347
Leane v. Joseph Entm’t 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. Sotheby’s, 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 Int’l, 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, 748 P.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, 246nn389–390
Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 739 F.3d 45 (2d Cir. 2013) … 247, 247nn395–396
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, 512nn101–104
Lilienthal v. Kaufman, 395 P.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, 485nn314–317
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 Lloyd’s, 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., 26 P.3d 430 (Alaska 2001) … 376n198, 402n350
Long v. Sears Roebuck & Co., 877 F. Supp. 8 (D.D.C. 1995) … 260, 260n462, 296, 296nn122–125, 297,
297nn126–127
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, 79nn76–78, 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, 51 P.3d 846 (Wyo. 2002) … 585n24
Lynch; State v., 969 P.2d 920 (Mont. 1998) … 70, 70nn29–31
Lynch v. Stop & Shop Supermarket Co., LLC, 84 Mass. App. Ct. 1118 (Mass. App. Ct. Nov. 6,
2013) … 540n111
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,
379nn215–216
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, 308nn198–202
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) … 429nn498–502
Mahne v. Ford Motor Co., 900 F.2d 83 (6th Cir.), cert. denied, 498 U.S. 941 (1990) … 300n141,
301n150, 306, 306nn188–189, 317n261
Mahoney v. Ronnie’s 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 Int’l, Inc., 651 N.W.2d 850 (Neb. 2002) … 206n149
Mali v. Keeper of Common Jail (Wildenhus’s 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, 323nn302–307
Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509 (9th Cir. 1988) … 440n40, 445, 445nn59–60
Manion v. Roadway Package Sys., Inc., 938 F. Supp. 512 (C.D. Ill. 1996) … 402n350
Maniscalco v. Brother Int’l (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 Dep’t.
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, 464nn176–177,
465n188, 465n190
Marra v. Papandreou, 59 F. Supp. 2d 65 (D.D.C. 1999) … 461n161
Marriage of. See name of party
Martin v. Goodyear Tire & Rubber Co., 61 P.3d 1196 (Wash. App. 2003), review denied, 149 Wash. 2d
1033 (Sept. 5, 2003) … 296, 296nn119–120
Martineau v. Guertin, 751 A.2d 776 (Vt. 2000) … 197nn100–101
Martinez v. Bloomberg LP, 740 F.3d 211 (2d Cir. 2014) … 453n111, 454nn112–115
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, 563nn61–62, 564n63
Maryland Cas. Co. v. Continental Cas. Co., 332 F.3d 145 (2d Cir. 2003) … 503n53
Maryland Cas. Co. v. San Juan Racing Ass’n, 83 P.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), reh’g denied (Oct. 27,
2008) … 526n19, 527n20
Mastafa v. Chevron Corp., 770 F.3d 170 (2d Cir. 2014) … 662, 662nn293–294, 663nn299–304,
664nn305–310
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), reh’g & reh’g en banc denied, 175
Fed. Appx. 328 (11th Cir. 2006) … 397n326, 402n351, 404n369
MBI Acquisition Partners, LP v. Chronicle Pub’g 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, 225 P.3d 516 (Cal. 2010) … 164n97, 166n112, 276n8, 329, 329n332,
329nn335–337, 330nn338–343, 331, 331n344, 332, 332n348, 535n77, 537n98, 538nn99–103
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, reh’g denied, 551 F.2d 52 (5th Cir. 1977), rev’d 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,
638nn97–99
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 Int’l, LLC, 671 F.3d 539 (5th Cir. 2012) … 545, 545n144, 546
McGee v. Arkel Int’l 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 Int’l, 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, 423nn459–460
McKee v. AT & T Corp., 191 P.3d 845 (Wash. 2008) … 422, 422nn452–454
McKinney v. Fairchild Int’l, 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 Nat’l & 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
Medellín 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,
396nn317–319, 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
M’Elmoyle v. Cohen, 38 U.S. (13 Pet.) 312 (1839) … 524n6
Melton v. Stephens, 13 N.E.3d 533 (Ind. App. 2014), reh’g denied (Oct. 14, 2014) … 231n286, 232n292,
233, 233nn297–299
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 rev’d, 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., 658 P.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, 179 P.3d 633, opinion modified on reconsideration, 195 P.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. Ass’n, 111 P.3d 601 (Haw. 2005) … 496n16, 500, 500n37, 501,
501nn42–46
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, 360nn106–108

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, 213nn201–202, 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), reh’g denied (Oct. 14, 2014),
cert. denied, 154 So. 3d 33 (Miss. 2015) … 183n39
Miller v. White, 702 A.2d 392 (Vt. 1997) … 78, 78nn71–72, 180n19, 195, 195nn77–78, 195nn81–82,
196nn83–87
Milliken v. Pratt, 125 Mass. 374 (1878) … 344, 344nn6–7
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, 304nn171–172
Mitchell v. State Farm Ins. Co., 68 P.3d 703 (Mont. 2003) … 348, 348n36, 496n16, 500, 500n36,
500n38, 501nn39–41
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, 321nn288–294, 322n295
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) … 426, 426n485,
439n33, 466, 466nn197–199, 467, 474, 474n251, 475, 475nn253–257, 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., 191 P.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,
619nn164–165
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), reh’g & reh’g en banc denied (Oct. 23,
2009) … 277n13, 320, 320nn279–283, 321nn284–285
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, 243nn363–364, 654, 654n229,
655, 655nn232–236, 656nn237–247, 657, 657n249, 657n251, 657n253, 658, 663, 663nn296–298,
664, 665, 666
Mortensen v. Bresnan Commc’n, LLC, 722 F.3d 1151 (9th Cir. 2013) … 470nn223–225
Morton Int’l, Inc. v. Aetna Cas. & Sur. Co., 666 N.E.2d 1163 (Ohio Ct. App. 1995) … 505n64
Motenko v. MGM Dist., Inc., 921 P.2d 933 (Nev. 1996) … 132n34, 168n133, 206n153, 208n165
Motmanco, Inc. v. McDonald’s 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, reh’g denied, 804 F.2d 681 (11th Cir.
1986) … 387n264
744 Table of Cases
MRO Commc’ns, 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, 666nn328–329, 667, 667n330, 667nn332–
336, 668nn338–340
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, reh’g 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 Nat’l 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
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), reh’g 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, 504nn56–57
Nedlloyd Lines B.V. v. Superior Ct., 834 P.2d 1148 (Cal. 1992) … 135n50, 163n93, 346n26, 346n28,
376n198, 397, 397n327, 398nn329–331, 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, 328nn326–331
Nestle USA, Inc.; Doe 1 v., 766 F.3d 1013 (9th Cir. 2014), reh’g & reh’g en banc denied, __ F.3d __, 2015
WL 3407226, as amended (June 10, 2015), pub. ordered, 786 F.3d 801 (9th Cir. 2015) … 660n275,
665, 665nn318–321, 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, 155nn45–46, 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
New York Life Ins. Co. v. Dodge, 246 U.S. 357 (1918) … 23, 23n34
New York Life Ins. Co. v. Head, 234 U.S. 149 (1914) … 23n35
Nexen Inc. v. Gulf Interstate Eng’g Co., 224 S.W.3d 412 (Tex. App. 2006) … 397n326
Nez v. Forney, 783 P.2d 471 (N.M. 1989) … 402n350
NGK Metals Corp. v. National Union Fire Ins. Co., 2005 WL 1115925 (E.D. Tenn. 2005) … 520,
520n144, 520nn146–147
Nierman v. Hyatt Corp., 808 N.E.2d 290 (Mass. 2004) … 540n111, 542n132, 543, 543nn133–134,
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, 464nn181–182,
465n188
NL Indus. v. Commercial Union Ins. Co., 65 F.3d 314 (3d Cir. 1995) … 510, 510nn89–91
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,
149nn8–11, 149n13, 171n154, 171n156, 173n164, 213, 213n205, 213nn207–208, 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. Attorney’s Office, 62 So. 3d 805 (La. Ct. App.), reh’g 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) … 322nn296–297
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) … 401nn346–347
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
Obergefell v. Hodges, __U.S. __, 135 S. Ct. 2584 (2015) … 554, 554n5, 556, 556n17, 561, 561n46,
561nn48–55, 562, 563n59, 576
O’Brien v. Marriot Int’l, 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
O’Connor v. O’Connor, 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
O’Donnell; 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., 583 P.2d 721 (Cal. 1978) … 164n97, 166, 166n111, 167,
167nn127–129, 168, 168nn129–132, 329, 329n334, 330, 331, 332
Ohayon v. Safeco Ins. Co., 747 N.E.2d 206 (Ohio 2001) … 497n17
O’Keefe v. Mercedes-Benz USA, LLC, 214 F.R.D. 266 (E.D. Pa. 2003) … 242n355
O’Keeffe 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 Entm’t, 42 Cal. Rptr. 3d 268 (Cal. Ct. App.), review denied (Aug. 16, 2006) … 398,
398nn332–333, 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), reh’g denied
(Nov. 5, 2010), review denied (Jan. 12, 2011) … 371n183, 431, 431nn510–514, 432, 432n523
One Beacon Am. Ins. Co. v. Huntsman Polymers Corp., 276 P.3d 1156 (Utah Ct. App.), cert. denied,
285 P.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
Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493 (1939) … 24, 24nn39–40, 99n34
Padula v. Lilarn Props. Corp., 644 N.E.2d 1001 (N.Y. 1994) … 187, 187nn50–54, 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., 904 P.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, 237nn322–324
Paris v. United States. See Juda; United States v.
Paris Air Crash of Mar. 3, In re, 399 F. Supp. 732 (C.D. Cal. 1975) … 676n23
Parker v. Idaho State Tax Comm’n, 230 P.3d 734 (Idaho 2010), reh’g denied (Apr. 29, 2010) … 613,
613n138
Parrott v. Severs Trucking, LLC, 422 S.W.3d 478 (Mo. App. S.D. 2014), reh’g &/or transfer denied (Feb.
28, 2014), transfer denied (Apr. 29, 2014) … 231n286, 232n292
Parsons & Whittemore Overseas Co. v. Societe Generale de L’Industrie 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, 85nn120–122
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) … 239nn333–334
Paul v. National Life, 352 S.E.2d 550 (W. Va. 1986) … 81n95, 142n68, 143, 143nn75–76
Paul Fire & Marine Ins. Co. v. Paw Paw’s 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 Inv’rs 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 opposing party
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, 634 P.2d 586 (Haw. 1981) … 131n31, 138n55, 174n169, 194nn73–74, 501n43
Petersen v. Boeing Co., 715 F.3d 276 (9th Cir. 2013) … 441, 441n45, 442nn46– 48, 448n73,
458nn142–143
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, 635 P.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, 507nn72–78, 508, 508nn79–84, 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,
453nn108–110
Phillips v. General Motors Corp., 995 P.2d 1002 (Mont. 2000) … 132n35, 151n24, 180n19, 267,
267nn508–509, 268, 298, 298n135, 299nn137–141, 300nn142–147, 301, 301n148
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) … 27, 27nn64–65
Phoenix Surgicals, LLC v. Blackstone Med., Inc., 2011 WL 63992 (D. Conn. 2011) … 440n40
Piché 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 & Firemen’s 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. McDonald’s 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., 306 P.3d 9 (Ariz. 2013) … 276n8, 332, 332nn349–353, 333nn353–354
Powell v. American Charter Fed. S. & L. Ass’n, 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 People’s 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, 460nn154–156, 472,
472n233, 473nn240–241
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, 125 P.3d 801 (Or. Ct. App. 2005), rev. den., 136 P.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, 449nn79–80
Progressive Gulf Ins. Co. v. Faehnrich, 752 F.3d 746 (9th Cir. 2014) … 499n31
Progressive Gulf Ins. Co. v. Faehnrich, 327 P.3d 1061 (Nev. 2014) … 499n30
Provence v. National Carriers, Inc., 360 S.W.3d 725 (Ark. 2010) … 461n161
Prows v. Pinpoint Retail Sys., Inc., 868 P.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
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,
468–469n215, 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
Radeljak v. DaimlerChrysler Corp., 719 N.W.2d 40 (Mich. 2006) … 170n150, 317, 317nn263–265,
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 Inv’rs 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, 627nn20–21
Rau v. Rau, 432 P.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) … 454nn117–118
Reagan v. McGee Drilling Corp., 933 P.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), reh’g 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 Ass’n 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, 432 P.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,
623nn197–198
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, 624nn202–204
Rhone Mediterranee Compagnia Francese Di Assicurazioni E Riassicurazoni v. Lauro, 712 F.2d 50 (3d
Cir. 1983) … 479nn285–286
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, 333nn356–361, 533,
533n57, 533n64
Rice v. Nova Biomed. Corp., 38 F.3d 909 (7th Cir. 1994) … 246n388, 258n456
Richards v. Lloyd’s 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, 650nn194–195, 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, 243 P.3d 1148 (N.M. Ct. App.), cert. denied, 243 P.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, 304 P.3d 116 (Wyo. 2013) … 614, 614n139, 614n141, 615nn142–143
Robinson v. Bland, 2 Burr. 1077 (1760) … 362n119
Robinson v. McNeil Consumer Healthcare, 615 F.3d 861 (7th Cir. 2010) … 277n13, 334, 334n368,
335nn369–372
Robinson v. Robinson, 778 So. 2d 1105 (La. 2001) … 371n180
Roby v. Corporation of Lloyd’s, 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,
239nn333–334
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, 294nn107–109
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, 312nn225–229, 313n234
Rowland v. Novartis Pharms. Corp., 983 F. Supp. 2d 615 (W.D. Pa. 2013) … 258n456, 262n475, 284,
284n47, 284nn49–52, 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, rev’d in part,
114 P.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., 449 P.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, 318nn267–271
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., 1 P.3d 803 (Idaho 2000) … 497n17
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, 941 P.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, 504nn58–60, 505nn61–62
St. Paul Surplus Lines v. International Playtex, Inc., 777 P.2d 1259 (Kan. 1989), cert. denied, 493 U.S.
1036 (1990) … 345n21, 513, 513n106, 514nn108–109
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 A Buck 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, 289nn81–83
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, 70nn32–33
Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985) … 654n228
San Diego Gas & Elec. Co. v. Gilbert, 329 P.3d 1264 (Mont. 2014) … 452nn100–103, 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., 18 P.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. Hardee’s 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, 474nn248–250, 476, 476n267
Schlemmer v. Fireman’s Fund Ins. Co., 730 S.W.2d 217 (Ark. 1987) … 171n155
Schlosser v. Allis-Chalmers Corp., 271 N.W.2d 879 (Wis. 1978) … 135nn49–50, 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., 259 P.3d 129 (Wash. 2011) … 424n466
Schoeberle v. United States, 2000 WL 1868130 (N.D. Ill. Dec. 18, 2000) … 257nn453–456
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, 156nn48–49, 156n51, 157,
157nn52–53, 157n55, 158, 160, 161, 162, 162n82, 180, 180nn14–18, 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, 447 P.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 reh’g (Apr. 23,
2014), review denied (July 9, 2014) … 264, 264n493, 265nn494–500, 266nn501–502, 287, 287n71,
288nn72–80
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, 579nn148–150
S.E.C. v. See name of opposing party
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. O’Brien, 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’ Int’l Ass’n, 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), reh’g denied (June 4, 2009) … 570n104
Sherrer v. Sherrer, 334 U.S. 343 (1948) … 21n27, 567, 567nn87–88
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, 292 P.3d 1224 (Colo. Ct. App. 2012) … 90n140
Shope v. State Farm Ins. Co., 925 P.2d 515 (N.M. 1996) … 345n16
Shuder v. McDonald’s 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,
306nn184–185
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. A Betterway 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) … 154nn38–39, 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 Nat’l Bank, 381 U.S. 81 (1965) … 569n94
Simons, State ex rel. v. Simons, 336 P.3d 557 (Or. Ct. App. 2014) … 576n132
Table of Cases 753
Simpson v. Socialist People’s 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), reh’g 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., 210 P.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 George’s 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, 546nn146–148
Small v. United States, 544 U.S. 385 (2005) … 83, 83n106, 83nn108–111
Smith v. Alza Corp., 400 N.J. Super. 529, 948 A.2d 686 (N.J. Super. App. Div. 2008) … 254, 254n428,
255nn429–431, 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, 290nn93–94
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, 551 P.2d 1206 (Cal. 1976) … 397n328
Soar v. National Football League Players’ Ass’n, 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,
652nn208–215, 653, 658n259, 659n261, 659nn263–269, 660nn270–271
South African Apartheid Litig., In re, 2004 WL 2722204 (S.D.N.Y. 2004) … 660nn272–273
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 Int’l, 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), rev’d, 545 U.S. 119 (2005) … 636n81,
638, 638n103, 639nn109–110, 640nn111–119, 641nn120–123, 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, 183nn36–37, 231n288, 235,
235nn309–314
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, 396nn323–324,
397n325
Stallworth v. Hospital Rentals, Inc., 515 So. 2d 413 (Fla. App. 1 Dist. 1987) … 240n335
Stamm v. Barclay’s 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 opposing party
State ex rel. See name of related party
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, 797 P.2d 168 (Kan. Ct. App. 1990) … 495n12
State Farm Mut. Auto. Ins. Co. v. Ballard, 54 P.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), reh’g 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, 284 P. 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, 440nn34–35
Stivers v. Ellington, 140 S.W.3d 599 (Ky. Ct. App. 2004) … 527n20
Stockmen’s 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, 376nn199–202,
425, 425n474
Stonewall Surplus Lines Ins. Co. v. Johnson Controls, Inc., 17 Cal. Rptr. 2d 713 (Cal. App.,
1993) … 517nn129–133, 518n134
Stonhard, Inc. v. Carolina Flooring Specialists, Inc., 621 S.E.2d 352 (S.C. 2005), reh’g 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), reh’g denied (June 10, 2009), transfer denied
(Sept. 24, 2009) … 89n135
Strassheim v. Daily, 221 U.S. 280 (1911) … 243n358, 645, 645nn154–155
Strategic Mktg. & Commc’ns, 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, 633nn61–63, 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, 629nn29–30
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 Int’l, 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), reh’g denied (Sept. 22, 2008) … 555n10
Sullivan v. Oracle Corp., 254 P.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, 28nn68–69, 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) … 564nn66–67, 565nn68–69
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) … 77nn68–69, 150n22, 169,
169n142, 169nn144–145, 170, 170nn146–149, 535n80
Sutton v. Hollywood Video Entm’t Corp., 181 F. Supp. 2d 504 (D. Md. 2002) … 399, 399nn337–340
Svege v. Mercedes Benz Credit Corp., 182 F. Supp. 2d 226 (D. Conn. 2002) … 180n19
Swanson v. Image Bank, Inc., 77 P.3d 439 (Ariz. 2003) … 370n176
Swenson v. T-Mobile USA, Inc., 415 F. Supp. 2d 1101 (S.D. Cal. 2006) … 421, 421nn447–449, 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
Talley v. Novartis Pharms. Corp., 2011 WL 2559974 (D.N.C. June 28, 2011) … 262n474, 282n35
Tang Chung Wah v. Grant Thornton Int’l 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, 431nn515–517, 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, 576nn130–131
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 Commc’ns 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) … 527nn22–23
Tenas v. Progressive Preferred Ins. Co., 197 P.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, 515nn117–118
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, 455nn120–121
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, 563nn57–58
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
Thornton’s Estate, In re, 33 P.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 Int’l, Inc., 265 F.3d 931 (9th Cir. 2001) … 427n494
Tidyman’s Mgmt. Servs. Inc. v. Davis, 330 P.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, 894 P.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, 255nn434–438, 310,
310nn209–210, 310n213, 311nn214–217
Townsend ex rel. Townsend v. Sears, Roebuck & Co., 858 N.E.2d 552 (Ill. App. Ct. 2006) … 255n439,
256n440, 311nn218–219
TPLC, Inc. v. United Nat’l 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. Workmen’s Comp. Appeals Bd., 434 P.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, 220nn247–249, 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 Int’l Inv. Corp., Inc., 292 F.3d 471 (5th Cir. 2002) … 266n506
Tucci v. Club Mediterranée, S.A., 107 Cal. Rptr. 2d 401 (Cal. App. 2001) … 206n151
Tucker v. Cochran Firm-Criminal Def. Birmingham LLC, 341 P.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 Int’l, 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 Nat’l. 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
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, 277 P.3d 562 (Or. Ct. App. 2012), review denied, 352 Or. 378 (Sept.
13, 2012) … 532n52
Unifund CCR Partners v. Porras, 275 P.3d 992 (Or. Ct. App. 2012), review denied, 352 Or. 378 (Sept.
13, 2012) … 532n52
Unifund CCR Partners v. Sunde, 260 P.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,
396nn314–316, 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 opposing party
United States Gypsum Co. v. Admiral Ins. Co., 643 N.E.2d 1226 (1994), reh’g 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, 641nn125–126
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
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) … 609nn118–119, 610nn120–122
Vass v. Volvo Trucks N. Am., Inc., 315 F. Supp. 2d 815 (S.D. W. Va. 2004) … 82n95
Veasley v. CRST Int’l, Inc., 553 N.W.2d 896 (Iowa 1996) … 149n18, 180n19, 239, 240nn336–338
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,
657nn252–253, 658, 658nn254–256, 658n258
Villaman v. Schee, 15 F.3d 1095 (9th Cir. 1994) … 215, 215n216, 257, 257nn448–449
Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528 (1995) … 439n33, 475, 475n258,
476nn264–265, 477nn269–277, 484, 484nn306–307, 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
Waddoups v. Amalgamated Sugar Co., 54 P.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. Smith’s 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 Eng’g 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., 178 P.3d 102 (Mont. 2008) … 496n17
Wang v. Marziani, 885 F. Supp. 74 (S.D.N.Y. 1995) … 257, 257nn450–452
Ward v. Nationwide Assurance Co., No. 2012-CA-000809-MR, 2014 WL 7339238 (Ky. Ct. App. Dec. 24
2014), reh’g 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, 207nn160–164
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,
541nn123–126, 543, 544
Washington v. Brown, 940 P.2d 546 (Wash. 1997), cert. denied, 503 U.S. 1007 (1998) … 70n33
Washington Mut. Bank v. Superior Court, 15 P.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., 671 P.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, 526 P.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., 935 P.2d 237 (Kan. App. 1997) … 402n350
W.H. Barber Co. v. Hughes, 63 N.E.2d 417 (Ind. 1945) … 61n73, 133, 133nn39–40, 154nn36–37
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., 93 P.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., 329 P.3d 749 (N.M. Ct. App.), cert. denied, 328 P.3d 1188
(N.M. 2014) … 498, 498nn23–24
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, 57 P.3d 232 (Utah Ct. App. 2002) … 184n39, 185nn43–44
Williams v. North Carolina, 317 U.S. 287 (1942) … 556n17, 566, 566n82, 567, 567nn83–86, 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, 885 P.2d 845 (Wash. Ct. App. 1994) … 533, 533n59, 533nn61–64
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, 560nn30–39, 561,
561nn40–45
Winter v. Novartis Pharms. Corp., 739 F.3d 405 (8th Cir. 2014) … 266, 266nn503–505, 285, 285nn54–56
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, 199 P.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, 601 P.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, 36nn127–129
Wyatt v. Fulrath, 211 N.E.2d 637 (N.Y. 1965) … 623, 623nn195–196, 623n199
Wyatt v. Syrian Arab Republic, 398 F. Supp. 2d 131 (D.D.C. 2005) … 630n37
Wyeth v. Rowatt, 244 P.3d 765 (Nev. 2010) … 275n6, 276n10, 334, 334nn365–367
Wysong & Miles Co. v. Employers of Wausau, 4 F. Supp. 2d 421 (M.D.N.C. 1998) … 505n64
Xiong v. Xiong, 648 N.W.2d 900 (Wis. Ct. App. 2002) … 555n10, 555n15
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, 450nn83–85, 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, 244nn373–374,
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
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., 115 P.3d 1017 (Wash. App. 2005), review denied, 132 P.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, 282nn38–39
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,
516nn123–124, 516nn126–127, 517n128, 529n32
Zygmuntowicz v. Hospital Invs., Inc., 828 F. Supp. 346 (E.D. Pa. 1993) … 244n372
Table of Statutes, Regulations,
and Conventions
United States Constitution §§201–208 … 474n244

art. I … 15 §202 … 474n245
art. I, §1 … 15n1 §208 … 473n242
art. I, §8 … 6n17, 16, 31n95, 625n1 §§301–307 … 474n244
art. I, §8, cls. 1-12 … 16n2 §305 … 474n245
art. I, §8, cl. 3 … 16n7 §307 … 473n243
art. I, §8, cl. 10 … 632n48 15 U.S.C.
art. I, §8, cl. 18 … 16n3 §1 … 647n169
art. I, §10 … 31n96 §6(a) … 648n182
art. II … 15 §78aa … 243n365, 657n250
art. II, §2 … 31n94 §78j(b) … 655n231
art. III … 15 §§1361–1421 … 633n57
art. III, §2 … 37n138 18 U.S.C.
art. IV … 17, 18n16 §922(g)(1) … 83n107
art. IV, §1 … 7n22, 19n18 §953 … 629n24
art. IV, §2 … 17n11 §1332(c) … 87n129
art. VI … 6n19, 16, 16n4, 627n12 §1965 … 85n118
amend. IV … 654n228 §2285 … 633n56
amend. V … 17n12, 560, 561, 627, 654n228 §§2331–2339C … 630n32
amend. X … 6n18, 16n5, 32n99, 39 §2331(1)(C) … 629n31
amend. XIV … 17, 17nn11–13, 18n16, 26, §2332(a) … 630n33
87n128, 561, 563 §2332(c) … 630n34
amend. XVIII … 637 §2333(a) … 630n35
§2381 … 629n25
Statutes and Regulations
§2423 … 629n27
United States
§2423(c) … 629n28
United States Code
28 U.S.C.
1 U.S.C.
§1330 … 38n142
§7 … 553n2, 559n26, 559n27
§1331 … 37n138
9 U.S.C.
§1332(a) … 38n142
§§1–16 … 463n170
§1346 … 38n140
§1 … 464n179
§1346(b) … 650n193
§2 … 463n170, 465n183, 465n184
§1350 … 658n257, 664n312
§3 … 478n279
§1350 Note … 631n38
763
764 Table of Statutes, Regulations,
and Conventions
§1367 … 38n139 Federal Rules of Evidence

§1404(a) … 440n36, 546n148, 550, 302 … 73n46
550n166 501 … 73n46
§1407 … 697n124 601 … 73n46
§1602 et seq. … 36n131, 38n142
State Laws
§1605(a)(2) … 37n133
Alabama Code
§1605(a)(3) … 37n134 §27-14-22 … 494n3
§1605(a)(5) … 37n135 §32-1-2 … 184n40, 696n118
§1605(a)(7) … 37n136, 267n511 Alaska Stat.
§1605A … 630n36 §34.77.030 … 602n86
§1652 … 38n143 Arizona Rev. Stat.
§1738 … 7n23, 19n20, 20n24 §20-1115 … 494n7
§1738A–B … 563n56 California Bus. & Prof. Code
§1738A … 7n23, 571n107 §16600 … 379n217
§1738A(a) … 571n109 California Civ. Code
§1738A(b)(4) … 571n110 §1646 … 346, 346n23, 346n24, 347
§1738A(c)(2)(A) … 571n110 California Civ. Proc. Code
§1738A(c)(2)(B)–(D) … 572n111 §338(c)(2) … 598n76
§1738B … 7n23, 569n97, 570n99 California Fam. Code
§1738B(g) … 563n60 §125 … 606n104
§1738C … 7n23, 559n26, 559n28 §760 … 606n104
§1739 … 7n23 §2550 … 607n105
§2680(k) … 650n196 California Prob. Code
29 U.S.C. §66 … 607n106
§171 … 637n91, 637n96 §101 … 607n108
42 U.S.C. §6113 … 619n168
§2000e(f) … 646n166 Colorado Rev. Stat.
§§11601 et seq. … 572n113 §13-1.5-104 … 495n14
§§12181 et seq. … 639n104 Florida Stat.
§12182(a) … 635n70, 639n105 §627.727 … 494n5
§12182(b)(2)(A)(ii) … 639n107 §731.106(2) … 624n205
§12182(b)(2)(A)(iv) … 639n108 Indiana Code
§12184(a) … 639n106 §34-30-11-1 … 184n40, 696n118
§12184(b)(2)(A) … 639n107 Kansas Stat.
§12184(b)(2)(C) … 639n109 §38-1114(f) … 577n138
46 U.S.C. §50-627(b)(1) … 376n200, 425n475
§688 … 634n69, 641n124 Louisiana Civ. Code
§761(a) … 633n58 art. 2315 … 679n33
§1303(8) … 476n260 art. 2315.4 … 251n408
§1903(a) … 632n54 art. 2315.7 … 251n408
§1903(c) … 632n55 art. 2315, cmt. b … 679n35, 679n37
§10313(I) … 633n60 arts. 3515–3549 … 678, 678n31
§30104 … 484n312 art. 3515 … 678, 678n32, 680, 680n40,
50 U.S.C. 680n43, 682, 684, 685n61
app. §5(b) … 629n22 art. 3517 … 77n63
app. §453 … 629n26 art. 3519 … 680n43, 681, 682, 684n57
art. 3520 … 682
Code of Federal Regulations
art. 3526 … 607n109
31 C.F.R. §500.329(a) … 629n23
art. 3526(1) … 607n109
Federal Rules of Civil Procedure art. 3526(2) … 608n111
12(b)(3) … 442 art. 3528 … 682
44.1 … 89, 89nn134–135, 90n144, 91n145 art. 3529 … 620n174, 621n178, 682, 685
art. 3530 … 620n174 New York Est. Powers & Tr. Law

art. 3533 … 620n176 §3-5.1(b) … 619n168
art. 3534 … 621n175 §3-5.1(c) … 619n168
art. 3537–3539 … 382 §3-5.1(h) … 623, 623n194
arts. 3537–3540 … 139n58 New York Gen. Oblig.
art. 3537 … 680n43, 681, 682, 684n57 §5-1401 … 370n179
art. 3537, cmt. a … 382n231 New York Labor Law
art. 3538 … 383n243 §240 … 187, 187n54
art. 3539 … 380n221, 381n227, 682 §241 … 187n54
art. 3540 … 374, 375n190, 382, 383n241, North Carolina Gen. Stat.
392n289 §58-3-1 … 494n4
art. 3540, cmt. d … 381n227 Oklahoma Stat.
art. 3540, cmt. e … 384n248, 385n250, tit. 12 §105 … 526n19
386n259, 405n371 tit. 15 §162 … 346n23
art. 3542 … 202n123, 208n171, 680n43, tit. 36 §3636 … 494n5
681, 681n44, 682, 683, 683n54, 684, tit. 84 §20 … 609n115
684n57, 684n59 Oregon Rev. Stat.
arts. 3543–3546 … 683, 683n53, 684 §§15.300–15.380 … 392n292, 688n82
art. 3543 … 181n21, 181n24, 208n168, 248, §15.300(1) … 405n371
248n401, 681, 686, 687 §15.320 … 689n83
art. 3543(1)–(2) … 687n78 §15.320(3) … 411n395
art. 3543(1) … 687n76 §15.320(4) … 411n392
art. 3544 … 159n62, 181n25, 201n120, 681, §15.325 … 383n243, 689n84
686, 687 §15.330 … 380n221, 381n228, 689n84
art. 3544(1) … 202n124, 203n133 §15.330(2) … 689n85
art. 3544(2)(a) … 208n168, §15.335 … 382n231, 689n84
216n222, 687n72 §15.350 … 392n290, 689
art. 3544(2)(b) … 223, 224n258, 687n74 §15.350(1) … 386n259
art. 3545 … 309n205, 338n380, 681, 685, §15.350(2) … 383n241
686, 686n64 §15.350(3)–(4) … 385n250
art. 3546 … 252n410, 269n514, 681, 686 §15.350(3) … 384n248
art. 3547 … 202n125, 683, 686 §15.355 … 375n191, 689
art. 3549 … 544, 544n139, 545, §15.355(1) … 378n211
545n142, 546 §15.355(1)(c) … 392n292
Louisiana Rev. Stat. §15.355(2) … 378n211
§22:611 … 494n5 §15.360 … 689, 689n86, 690
§22:655 … 494n5 §15.380 … 690n87
§22:1406(D) … 494n5 §§15.400–15.460 … 690n88
Maryland Stat. §§15.410–15.420 … 690n89
§9-104 … 449n80 §15.410 … 67n14
§9-104(a) … 449n80 §15.430 … 89n137, 690n89
Michigan Comp. Laws §15.430(2) … 392n291
§324.1804 … 495n14 §15.435 … 338n381, 690n89, 693n103
§324.82126(6) … 232n292 §15.440 … 690
Minnesota Stat. §15.440(2)(a) … 181n26, 201n121, 690, 691
§60A.08(4) … 494n5 §15.440(2)(b) … 182n27, 202n124, 203n133
§80C.21 … 430n505 §15.440(3)(a)–(b) … 691
Montana Code §15.440(3)(a) … 208n169, 216n222
§28-3-102 … 346n23, 500n38 §15.440(3)(b) … 208n170, 225nn265–266
Nebraska Rev. Stat. §15.440(3)(c) … 223, 223n256, 248,
§25-21.237 … 696n118 249n402, 691, 691n91
Nevada Rev. Stat. §15.440(3)(c)(B) … 691n95
§696B.020 … 519n140 §15.440(4) … 202n125
and Conventions
§15.445 … 202n123, 690, 690n89, 691, §1-301, cmt. 3 … 348n39

692n97, 692n102, 693, 693n103 §1-301(a) … 366, 366n150, 367, 415n413
§15.445(3)(a) … 692n100 §1-301(b) … 348, 348n38, 349
§15.445(3)(b) … 692n101 §1-301(c) … 367, 367n155, 375n192
§15.445(4) … 693n104 §1-302 … 367, 698n137
§15.450 … 202n123, 691n92, 693n103 §1-302, cmt. 2 … 408n385
§15.455 … 392n292 §1-302(a) … 367n153
§110.381 … 576n132 §2-402 … 348, 367n155, 375n192
§465.480(2)(a) … 495n14, 495n15 §2A-105 … 348, 367n155, 375n192
§742.001 … 494n6 §2A-106 … 348, 367n155, 375n192
§742.018 … 494n6 §4-102 … 348, 367n155, 375n192
Puerto Rico Draft Code §4A-507 … 348, 367n155, 375n192
art. 8 … 545n140 §5-116 … 348, 367n155, 375n192
art. 28 … 385n250, 386n259 §6-103 … 348, 367n155, 375n192
art. 29 … 374n189 §8-110 … 348, 367n155, 375n192
art. 34 … 382n231, 383n241 §§9-301 through 9-308 … 585n25
arts. 35–37 … 412n402 §§9-301 through 9-307 … 348, 367n155,
arts. 35–36 … 412n402 375n192
art. 39 … 683n54 §9-307(b) … 585n26
art. 39.3 … 202n125, 208n171 §9-307(c) … 585n26
art. 39(3) … 683n54 art. 1-105 … 142n65
art. 40 … 208n168 Uniform Conflict of Laws-Limitations Act
art. 41 … 201n122, 202n124, 203n133, §2 … 531, 531nn50–51, 532, 532n56
208n168 §4 … 531, 531n49, 533, 533n65
art. 41(b)(2) … 223n257 Uniform Disposition of Community Property
art. 44 … 621n178 Rights at Death Act
§1 … 609n113
art. 47 … 181n25
§3 … 609n114
art. 48 … 622n189
§6 … 609n115
South Carolina Code
Uniform Interstate and International Procedure
§38-61-10 … 494n4, 519n140
Act of 1962
Tennessee Code
§56-7-102 … 494n5, 520n145 §§4.01–4.03 … 88
Texas Ins. Code Uniform Interstate and International Procedure
§21.42 … 493n2 Act of 1986
Virginia Code 13 U.L.A. 355 … 88n133
§38.2-313 … 494n5 Uniform Interstate Family Support Act of 2001
§55-36 … 217n233 §201 … 570n100
Washington Rev. Code §303(1) … 570n100
§19.100.170 … 431n517 §604(a) … 571n105
Wisconsin Stat. Uniform Marriage and Divorce Act, §206(b)
§299.33(4) … 495n14 … 555n12
§632.09 … 494n5 Uniform Probate Code
§853.05 … 619n168 §1-201(18) … 622n191
§2-506 … 619n168
Uniform Laws
Uniform Child Custody Jurisdiction and §2-703 … 622n188, 622n191
Enforcement Act of 1997 Foreign Statutes
§105 … 572n112 Afghanistan codif.
Uniform Commercial Code art. 17 … 380n221
§1-105 … 137–138n55, 142n65, 366, 367 art. 18 … 383n242
§1-301 … 367, 375, 415 art. 35 … 373n186
§1-301, cmt. 1 … 367n152 Albania codif.
§1-301, cmt. 2 … 348n40, 348n41 art. 11 … 380n221
art. 18 … 383n242 Belarus codif.

art. 33.3 … 363n127, 622n189 art. 1094 … 67n14
art. 40 … 594n70 art. 1095 … 87n130
art. 45.1 … 386n259 art. 1096.2 … 74n51
art. 45.2 … 383n236 art. 1099 … 377n207
art. 45.3 … 385n250 art. 1100 … 377n207
art. 52 … 412n401 art. 1104 … 380n221
art. 52.2 … 377n207 art. 1116 … 383n242
art. 57 … 393n300 art. 1124.2 … 383n236
Algeria codif. art. 1124.3 … 385n250
art. 10 … 380n221 art. 1124.4 … 386n259
art. 18 … 373n186 art. 1133 … 363n127, 622n189, 622n192
art. 19 … 383n242 art. 1135 … 363n127, 622n189, 622n192
Angola codif. Belgium codif.
art. 22 … 373n186 art. 15 … 87n130
art. 25 … 380n221 art. 21 … 80n84
art. 28 … 380n221 art. 21(2) … 374
art. 36 … 383n243 art. 34 … 380n221
Argentina codif. draft art. 79 … 363n127, 622n189, 622n192
art. 120 … 621n178 art. 90 … 594n70
arts. 2599-2600 … 377n207 art. 92 … 594n70
art. 2616 … 380n221 art. 99 §2.4 … 339n386
art. 2649 … 383n242 art. 100 … 339n386
art. 2651 … 383n236, 386n259 art. 101 … 392n293
art. 2651(a) … 385n250 art. 102 … 182n31
art. 2655 … 410n392, 412n401 art. 124 … 622n189, 622n192
Armenia codif. Bulgaria codif.
art. 1254 … 67n14 art. 39 … 67n14
art. 1255 … 87n130 art. 43 … 87n130
art. 1258 … 373n187 art. 50 … 380n221
art. 1259 … 373n187 art. 61 … 383n243
art. 1265 … 380n221 art. 70 … 594n70
art. 1280 … 392n295 art. 89 … 363n127, 622n189, 622n192
art. 1281 … 383n242 art. 113(1) … 392n293
art. 1284(2) … 386n259 Burkina Faso codif.
art. 1284(3)–(4) … 385n250 art. 1005 … 74n51
art. 1292 … 363n127, 622n189 art. 1044 … 363n127, 622n189, 622n192
Austria codif. Burundi codif.
art. 3 … 87n130 art. 2 … 380n221
art. 4 … 87n130 art. 5 … 383n242
art. 5.2 … 74n51 art. 10 … 373n186
art. 6 … 80n82 Bustamante Code
art. 8 … 383n243 art. 187 … 604n91
art. 12 … 380n221 art. 229 … 520n2
art. 19 … 604n91, 604n93 Cape Verde codif.
art. 30 … 621n178 art. 22 … 373n186
art. 48 … 392n295 art. 25 … 380n221
Azerbaijan codif. art. 28 … 380n221
arts. 4–5 … 377n207 art. 35 … 383n243
art. 10 … 380n221 Central African Republic codif.
art. 12 … 383n242 art. 40 … 380n221
art. 24.4 … 377n207 art. 47 … 373n186
art. 29 … 363n127, 622n189 Chad codif. art. 72 … 373n186
and Conventions
China codif. Gabon codif.
art. 4 … 373n187 art. 30 … 373n186
art. 5 … 373n187 art. 32 … 380n221
art. 8 … 67n14 art. 57 … 384n243
art. 12 … 380n221 Georgia codif.
art. 35 … 621n183 art. 35.2 … 385n250
art. 42 … 410n392 art. 35.3 … 377n207
art. 43 … 411n395 Germany codif.
art. 47 … 392n293 art. 4 … 76n62
Croatia codif. art. 4.1 … 74n51
art. 6.2 … 74n51 art. 6 … 79n82
art. 7 … 383n243 art. 7 … 380n221
art. 13(1) … 87n130 art. 11 … 383n243
art. 14 … 380n221 art. 15 … 604n92
Cuba codif. art. 21 … 373n186 art. 15(II) … 604n93
Czech codif. art. 32 … 520n2
art. 53 … 87n130 art. 40(3) … 84n115
art. 77.4 … 363n127 art. 42 … 392n293
Czech Republic codif. Greece Civ. Code, codif. art. 15 … 604n91
art. 35 … 74n51 Guatemala codif.
art. 42 … 383n243 arts. 28-29 … 383n242
Dutch Act Regarding the Conflict of Laws on art. 31 … 373n186
Torts of 11 April 2001, codif. Guinea-Bissau codif.
art. 6 … 392n295 art. 22 … 373n186
art. 8 … 182n31 art. 25 … 380n221
Dutch codif. art. 28 … 380n221
art. 2 … 87n130 art. 36 … 383n243
art. 145 … 363n127, 622n189 Hungary codif.
East Timor codif. art. 3 … 67n14
art. 21 … 373n186 art. 4 … 74n51
art. 24 … 380n221 art. 5 … 87n130
art. 27 … 380n221 art. 10 … 380n221
art. 34 … 383n243 art. 30.1 … 383n243
Estonia codif. art. 30.3 … 383n243
art. 4 … 87n130 art. 30(4) … 520n2
art. 7 … 80n82 art. 33.1 … 182n31
art. 8 … 383n243 art. 39 … 604n92
art. 12 … 380n221 Italy codif.
art. 25 … 363n127, 622n189 art. 13.1.b … 74n51
art. 54 … 392n294 art. 13(3) … 76n62
art. 6.1 … 74n51 art. 14 … 87n130
Finland Code of Inheritance, codif. art. 10 … art. 23 … 380n221, 383n243
621n181 art. 46 … 363n127, 622n189, 622n192
FYROM codif. art. 56 … 622n189, 622n192
art. 5 … 373n187 Japan codif.
art. 6.2 … 74n51 art. 4 … 380n221
art. 7 … 383n243 art. 10 … 383n243
art. 14 … 373n187 arts. 11–12 … 377n207, 412n402
art. 15 … 380n221 arts. 11(3)–(5) … 384n244
art. 15(3) … 386n259 art. 18 … 339n386
art. 21.2 … 383n236 art. 20 … 339n386
arts. 24-25 … 377n207, 412n402 art. 21 … 392n293
art. 33(3) … 392n293 art. 22(2) … 339n386
art. 42 … 373n186 Mexico codif.

Jordan codif. art. 12.V … 373n186
art. 12 … 380n221 art. 13.II … 380n221
art. 21 … 383n243 art. 13.IV … 383n242
art. 29 … 373n186 art. 15 II … 80n82
Kazakhstan codif. Moldova codif.
art. 112.2 … 383n236 art. 1579 … 67n14
art. 112.3 … 385n250, 386n259 art. 1583 … 373n187
art. 1090 … 377n207 art. 1584 … 373n187
art. 1091 … 377n207 arts. 1589–1590 … 380n221
art. 1095 … 380n221, 383n242 art. 1592 … 380n221
art. 1121 … 363n127, 622n189 art. 1610 … 383n243
Kyrgyzstan codif. art. 1611 … 383n236, 385n250, 386n259
art. 1167 … 392n295 art. 1624 … 363n127, 622n189
art. 1168 … 67n14 Mongolia codif.
art. 1170.2 … 74n51 art. 540.1 … 373n186
art. 1173 … 377n207 arts. 543–544 … 380n221
art. 1174 … 377n207 art. 548.2–548.8 … 383n242, 383n243
art. 1178 … 380n221 Mozambique codif.
art. 1190 … 383n242 art. 22 … 373n186
art. 1198(2) … 386n259 art. 25 … 380n221
art. 1198(3) … 385n250 art. 28 … 380n221
art. 1206 … 363n127, 622n189 art. 36 … 383n243
Latvia codif. Netherlands codif.
art. 8 … 380n221 art. 11 … 380n221
art. 23 … 74n51 art. 12 … 383n243
Liechtenstein codif. North Korea codif.
art. 5 … 74n51 art. 5 … 373n186
art. 6 … 373n186 art. 13 … 373n186
art. 8 … 383n243 art. 17 … 380n221
art. 12 … 380n221 art. 24 … 383n243
art. 29.3 … 363n127, 622n189 Paraguay codif. art. 22 … 373n186
art. 30 … 621n182 Paraguay Law 5393 of 2015 … 408n387
art. 39.1 … 383n236 Peru codif.
art. 45 … 377n207, 412n402 art. 2051 … 87n130
art. 48 … 377n207, 412n402 art. 2070 … 380n221
Lithuania codif. art. 2078 … 604n91
art. 1.14.1 … 74n51 art. 2094 … 383n243
art. 1.16 … 380n221 art. 2099 … 520n2
art. 1.38 … 383n243 art. 3029 … 80n83
art. 1.43.3 … 392n294 Poland codif.
art. 1.43.5 … 339n386 art. 5 … 74n51
Macau codif. arts. 11–13 … 380n221
art.14 … 67n14 art. 25 … 383n243
art. 16 … 74n51 art. 64.1 … 363n127, 622n189, 622n192
art. 20 … 373n187 Portugal codif.
art. 21 … 373n187 art. 15 … 67n14
art. 27 … 380n221 arts. 17–19 … 76n62
art. 35 … 383n243 art. 18 … 74n51
Madagascar codif. art. 25 … 380n221
art. 28 … 380n221 art. 28 … 380n221
art. 33 … 383n236 art. 36 … 383n243
Mauritania codif. art. 7 … 380n221 art. 45(3) … 182n28
and Conventions
Puerto Rico codif. art. 158 … 393n300

art. 32 … 383n243 Slovakia codif.
art. 33 … 380n221 art. 3 … 380n221
Puerto Rico draft codif. art. 4 … 384n243
art. 5 … 67n14 Slovenia codif.
art. 48 … 363n127 art. 6.2 … 74n51
Qatar codif. art. 8 … 384n243
art. 11 … 380n221 art. 12 … 87n130
art. 27 … 383n236 art. 13 … 380n221
art. 29 … 383n243 Somalia codif.
art. 38 … 373n186 art. 11 … 380n221
Quebec codif. art. 20 … 384n243
art. 3078 … 67n14 art. 28 … 373n186
art. 3081 … 80n83, 377n207 South Korea codif.
art. 3083 … 380n221 art. 5 … 87n130
arts. 3085–3087 … 380n221 art. 7 … 373n187
arts. 3098–3099 … 363n127, 622n189, art. 9.1 … 74n51
622n192 art. 10 … 80n82, 373n187
art. 3109 … 384n243 art. 13 … 380n221
art. 3111(3) … 385n250, 386n259 art. 15 … 380n221
art. 3112 … 387n263 art. 17 … 383n243
arts. 3117–3118 … 377n207, 412n402 art. 25(1) … 383n236
art. 3119 … 412, 412n398 art. 25(2) … 386n259
art. 3131 … 520n2 art. 25(3) … 385n250
Romania codif. arts. 27–28 … 377n207, 412n402
art. 3 … 67n14 art. 32(4) … 84n115
art. 4.1 … 74n51 art. 33 … 392n294
art. 11 … 380n221 art. 49 … 363n127, 622n189, 622n192
art. 17 … 380n221 Spain codif.
art. 68(1) … 363n127, 622n189, 622n192 art. 9 … 604nn92–93
art. 71 … 384n243 art. 10(10) … 520n2
Russia codif. art. 12.1 … 67n14
art. 1187 … 67n14 Sudan codif.
art. 1190.2 … 74n51 art. 11.1 … 380n221
art. 1192 … 377n207 art. 11.13c … 384n243
art. 1193 … 377n207 Switzerland codif.
art. 1197 … 380n221 art. 14 … 76n62
art. 1209 … 383n242 art. 14.1 … 74n51
art. 1210(2) … 383n236 art. 16 … 87n130
art. 1210(3) … 385n250 art. 36 … 380n221
art. 1210(4) … 386n259 arts. 52–53 … 604n93
art. 1212 … 377n207, 412n401 art. 55 … 604n92
art. 1219(3) … 392n294 art. 87(2) … 363n127, 622n189, 622n192
Rwanda codif. art. 8 … 373n186 art. 90(2) … 363n127, 622n189, 622n192
Serbia draft codif. art. 91(2) … 363n127, 622n189, 622n192
art. 40.2 … 377n207 art. 94 … 621n180
art. 104 … 363n127, 622n189 art. 95(2) … 363n127, 622n189, 622n192
art. 107 … 621n179 art. 95(3) … 363n127, 622n189, 622n192
art. 121 … 594n70 art. 116(2) … 383n236
art. 136.2 … 383n236 art. 116(3) … 385n250
art. 136.4 … 385n250 arts. 120–121 … 377n207
arts. 141–142 … 377n207, 412n402 art. 120 … 411n394
art. 144 … 377n207 art. 124 … 384n243
art. 147 … 380n221 art. 132 … 392n294
art. 142(2) … 182n30 art. 26 … 74n51

art. 148 … 520n2 art. 27 … 373n186
Taiwan codif. United Kingdom tort conflict statute §9.2 … 67n14
art. 6 … 74n51 Uruguay draft codif.
art. 7 … 373n187 art. 5.1 … 377n207
art. 8 … 373n187 arts. 6.1–6.2 … 377n207
art. 10 … 380n221 art. 20 … 380n221
art. 16 … 384n243 art. 43 … 384n243
art. 20.1 … 383n236 art. 48.3 … 386n259
art. 31 … 392n294 art. 50.5 … 410n392
art. 36 … 520n2 art. 50.6 … 411n397
Tajikistan codif. Uzbekistan codif.
arts. 1197–1198 … 377n207 art. 1164 … 377n207
art. 1201 … 380n221 art. 1165 … 377n207
art. 1210 … 383n242 art. 1169 … 380n221
art. 1218.2 … 383n236 art. 1181 … 383n242
art. 1218.3 … 385n250, 386n259 art. 1197 … 363n127, 622n189
art. 1225.3 … 392n294 Uzbekistan codif. art.
arts. 1231–1232 … 363n127, 622n189 1189.2 … 386n259
Tunisia codif. Venezuela codif.
art. 36 … 377n207 art. 4 … 74n51
art. 38 … 377n207 art. 8 … 80n82, 373n187
art. 40 … 380n221 art. 10 … 373n187
art. 37 … 384n243
art. 67 … 411n395
art. 60 … 87n130
art. 68 … 384n243
Vietnam codif.
art. 71 … 392n294
art. 759.3 … 373n186
art. 75 … 182n31
arts. 761-763 … 380n221
Turkey codif.
art. 765 … 380n221
art. 2 … 87n130
art. 770 … 383n242
art. 5 … 377n207
Yemen codif.
art. 6 … 377n207
art. 25 … 380n221
art. 7 … 384n243
art. 30 … 383n236
art. 9 … 380n221
art. 31 … 383n242
art. 24(1) … 383n236
art. 36 … 373n186
art. 24(2) … 386n259
art. 24(3) … 385n250 International Conventions, EU
arts. 26–27 … 377n207, 412n402 Regulations, and Other Rules
art. 31 … 377n207 AAA International Arbitration Rules
art. 34(5) … 392n293 art. 31 … 409n390
Ukraine codif. art. 31(1) … 487n326, 487n332, 488n338
art. 5.2 … 383n236 art. 31(3) … 487n339
art. 5.3 … 386n259 “Brussels I” Regulation (EU) No. 1215/2012 of
art. 12 … 377n207 the European Parliament and of the Council
art. 14 … 377n207 of 12 December 2012 on Jurisdiction and the
art. 18 … 380n221 Recognition and Enforcement of Judgments
art. 31 … 384n243 in Civil and Commercial Matters (Brussels
art. 45 … 377n207, 412n401 I recast)
art. 49.4 … 392n294 art. 19 … 413n407, 441n41
arts. 52–55 … 411n396 art. 23 … 413n407, 441n41
art. 70 … 363n127, 622n189 art. 25 … 447nn69–70
United Arab Emirates codif. art. 25(1) … 436n3
art. 11 … 380n221 Council Regulation 4/2009, of 18 December
art. 19.1 … 383n236 2008 on Jurisdiction, Applicable Law,
and Conventions
Recognition and Enforcement of Decisions art. 11 … 384n245

and Cooperation in Matters Relating to art. 17 … 373n187
Maintenance Obligations art. 18 … 373n187
art. 15 … 363n131 Hague Convention of 1 August 1989 on the Law
Council Regulation 1259/2010, of 20 December Applicable to Succession to the Estates of
2010 Implementing Enhanced Cooperation in Deceased Persons
the Area of the Law Applicable to Divorce and art. 5 … 363n127, 622n186
Legal Separation art. 5(1) … 622n186
art. 5 … 363n131 Hague Convention of 30 June 2005 on Choice of
Hague Convention of 15 June 1955 on the Law Court Agreements
Applicable to International Sales of Goods art. 2(1) … 411n394, 457n136
art. 3(b) … 436n5
art. 6 … 373n186
art. 3(c) … 447n70
Hague Convention on the Conflicts of Laws art. 5 … 444n55
Relating to the Form of Testamentary art. 5(1) … 699n147
Dispositions of 1961 art. 6 … 444n55, 446n64, 699n147
art. 1 … 619n169 art. 9 … 446n67
art. II … 84n114
Hague Convention on the Law Applicable to
Traffic Accidents of 1971 Hague Convention of 5 July 2006 on the Law
art. 9 … 182n32 Applicable to Certain Rights in Respect of
Securities held with an Intermediary
Hague Convention on the Law Applicable to art. 11.1 … 373n187
Products Liability of 1973 art. 11.2 … 373n187
art. 4 … 182n32
art. 5 … 182n32 Hague Convention on the Law Applicable to
art. 6 … 182n32 Matrimonial Property Regimes
art. 9 … 182n32 art. 3 … 363n129, 604n93
arts. 6-8 … 604n92
Hague Convention of 14 March 1978 on the Law
Applicable to Agency Hague Convention on the Law Applicable to
art. 2 … 381n222, 383n242 Trusts and on Their Recognition, art. 6 …
art. 5 … 383n237 363n128
art. 16 … 377n203 Hague Principles on Choice of Law in
art. 17 … 377n203 International Commercial Contracts
Hague Convention on the Civil Aspects of art. 1 … 411n394
International Child Abduction of 1980 art. 1(3)(a) … 381n222
art. 1 … 572, 572n114 art. 2.2 … 386n258
art. 2 … 572n115 art. 2.3 … 384n249
art. 3 … 572, 574n122 art. 3 … 407n377, 408, 408n388, 699n141
art. 5 … 572n116 art. 5 … 383n237
Hague Convention of 1 July 1985 on the Law Hague Protocol on the Law Applicable to
Applicable to Trusts and on Their Recognition Maintenance Obligations
art. 6 … 621n185 arts. 7-8 … 363n131
Hague Convention of 22 Dec. 1986 on the Law ICC Arbitration Rules

Applicable to Contracts for the International art. 21(1) … 487n328
Sale of Goods art. 21(3) … 487n339
art. 2(c) … 411n394 Interamerican (Mexico City) Convention on the
art. 5 … 381n222, 383n242 Law Applicable to International Contracts of
art. 7.1 … 383n237 17 March 1994
art. 7(1) … 386n257 art. 5 … 381n222, 384n245
art. 7(2) … 384n249 art. 7 … 383n237, 386n257
art. 8 … 384n249 arts. 5–6 … 412n400

art. 11 … 377n208 art. 9 … 384n244
art. 11(1) … 377 art. 16 … 377n203
art. 11(2) … 377
“Rome I” Regulation (EC) No. 593/2008 of the
art. 18 … 377
European Parliament and of the Council
London Court of International Arbitration of 17 June 2008 on the Law Applicable to
(LCIA) Rules Contractual Obligations
art. 22.3 … 487n329 art. 1(2)(a) … 380n221
art. 22.4 … 487n339 art. 3(1) … 383n235
art. 3(2) … 384n244
Lugano Convention on Jurisdiction and the
art. 3(3) … 377n206
Recognition and Enforcement of Judgments in
art. 5(2) … 413n403, 413n409
Civil and Commercial Matters of 30/10/2007
art. 6 … 413n403
art. 23 … 436n4 art. 6(1) … 413n405
New York Convention on the Recognition and art. 6(2) … 377n205, 413n404
Enforcement of Foreign Arbitral Awards of 10 art. 7(3) … 413n403, 414n410
June 1958 art. 8 … 413n403
art. II … 479, 485, 486 art. 8(1) … 377n205, 413n404
art. II(3) … 478, 478n278, 481, 481n293 art. 8(2)–(4) … 413n406
art. V … 478, 479, 481, 482, 484, 485, art. 9(2) … 414n410
487n339 art. 9(3) … 377n207, 414n410
art. V(1)(a) … 478nn280–281, 480, 481n294 art. 10 … 384n244
art. V(1)(e) … 485n318 art. 11 … 384n244
art. V(2)(a) … 478n282, 482, 482n298 art. 11(5) … 377n206
art. V.2(b) … 487n339 art. 12(1)(d) … 520n2
art. 13 … 380n221
art. V(2)(b) … 478n283
art. 14 … 392, 393n296, 408n386
art. VI … 485n318
art. 20 … 377n204
Regulation (EC) No. 593/2008 of the European art. 21 … 414n410
Parliament and of the Council of 17 June
“Rome II” Regulation (EC) No. 864/2007 of the
2008 on the Law Applicable to Contractual
European Parliament and of the Council of
Obligations. See “Rome I” this heading
11 July 2007 on the Law Applicable to Non-
Regulation (EU) No. 650/2012, of the European contractual Obligations
Parliament and of the Council of 4 July 2012 art. 4(2) … 340
on Jurisdiction, Applicable Law, Recognition art. 5(1) … 339, 340, 340n387, 340n388
and Enforcement of Decisions and Acceptance art. 5(2) … 340n390
and Enforcement of Authentic Instruments in art. 6(4) … 393n296
Matters of Succession and on the Creation of art. 8(3) … 393n296
a European Certificate of Succession art. 14 … 363n132, 393n300, 699n144
art. 22 … 622n187 art. 14(1)(a) … 393n297
art. 22, 2012 O.J. (L 201) 107 (EU) … art. 14(1)(b) … 393nn298–300
363n127 art. 14(2) … 393n301
art. 27 … 620n170 art. 14(3) … 393n301
art. 15 … 520n2
Regulation (EC) No. 864/2007 of the European
art. 16 … 393n301
Parliament and of the Council of 11 July 2007
art. 17 … 183n33
on the Law Applicable to Non-contractual
art. 23(1) … 340n389
Obligations (“Rome II”). See Rome II,
art. 26 … 79n82, 84, 393n301
this heading
Rome Convention on the Law Applicable to Stockholm Chamber of Commerce (SCC)
Contractual Obligations of 1980 Arbitration Rules
art. 3(1) … 386n256 art. 22(1) … 487n329
arts. 5–7 … 377n203 art. 22(3) … 487n339
and Conventions
Switzerland Rules of International United Nations Convention on Contracts for the

Arbitration International Sale of Goods (CISG) of 1980
art. 33 … 487n329 art. 1 … 349
art. 33(2) … 487n339 art. 1(1) … 349n48
art. 2 … 349
UNCITRAL Arbitration Rules
art. 6 … 349, 350
art. 21(1) … 487n328 art. 7(2) … 351, 352n58
art. 35(1) … 487n327 art. 11 … 351, 382n234
art. 35(2) … 489n339 art. 29 … 382n234
UNIDROIT Convention on Stolen or Illegally art. 96 … 351n57
Exported Cultural Objects of 1995 United Nations Convention on the Law of the
art. 1(b) … 594n68 Sea (UNCLOS)
art. 2 … 593n63 art. 101(c) … 632n52
art. 3(1) … 594n69
art. 3(2) … 594n67 World Intellectual Property Organization
art. 5(1) … 594n69 (WIPO) Rules
art. 5(2) … 594n68 art. 59(a) … 487n329, 487n339
Table of Restatements
Restatement (First) of the Law, Conflict of Laws §384 … 55n42, 58n54

§1 … 45n2, 54n34 §585 … 68n19
§7 … 67n11, 75n53 §586 … 69
§8 … 75n53 §587 … 69
§§121–122 … 554n6 §588 … 69
§132 … 554n6 §589 … 69
§134 … 554n6, 554n7 §590 … 69
§139(1) … 71n36 §591 … 69
§§208–254 … 54n37 §592 … 69
§214 … 59n62, 582n3 §593 … 69
§215 … 59n62, 582n2 §594 … 69
§216 … 59n62 §595 … 69
§217 … 59n62, 582n2 §596 … 69
§219 … 59n62, 582n4 §597 … 69
§220 … 59n62, 582n3 §600 … 69
§§223–224 … 59n62, 582n5 §601 … 69
§§225–231 … 59n62, 582n6 §602 … 69
§237 … 59n62 §§603–604 … 524n7
§238 … 59n62 §§603–605 … 69
§§245–250 … 617n151
§603 … 524
§245 … 59n62
§604 … 524
§§246–247 … 59n62
§605 … 528
§248 … 59n62
§606 … 69
§§249–250 … 59n62
§§607–620 … 69
§§255–257 … 60n64
§612 … 78, 78n74, 79
§§289–290 … 60n65
§612, cmt. c … 79n79
§§300–310 … 60n66, 617n152
§§323–324 … 344n8 Restatement (Second) of the Law, Conflict
§325 … 59nn57–58, 344n3, 344n7 of Laws
§326 … 55n39, 344n3 §3 … 408n383
§332 … 54n36, 59n59, 344n5, 364n138, 577 §6 … 111, 112, 112n109, 113, 114, 115n127,
§358 … 59n60, 344n4 142n65, 150, 154, 352, 353, 354n69, 355,
§377 … 55n39, 59n55, 333n364 357, 429n501, 500, 506, 507, 515, 518,
§378 … 54n35 539, 575, 584, 702
775
776 Table of Restatements
§6(2) … 111n107 §187, cmt. c … 408n383

§6(2)(a)(b) … 70n27, 82n100 §187, cmt. d … 432n520
§6(2)(d) … 541n121 §187, cmt. e … 387n262, 387n265
§6, cmt. (c) … 112n110 §187, cmt. f … 371n181
§6, cmt. d … 112n108 §187, cmt. g … 359n103, 378nn212–213
§7 … 67n13 §187, cmt. h … 405n371
§8 … 76, 76n59 §187, cmt. i … 386n259, 389n276
§78 … 578n144 §187, cmt. s … 371n183
§90 … 359n103, 375, 375n194, 376 §187(1) … 369, 369n168, 370n176, 385,
§90, cmt. c … 375nn195–196, 376n197 385n253, 408n383, 432, 432n521,
§90, cmt. g … 376n197 699n140
§122 … 69n26 §187(1), cmt. c … 369n169, 385n254
§138 … 70n28 §187(1), cmt. d … 369n170, 369nn172–174
§139(2) … 72, 72n39 §187(2) … 370, 370n176, 371, 385, 385n255,
§141 … 354n73 389, 392n288, 418, 418n426, 419n435,
§142 … 314, 535n75, 539, 539n105, 432, 487n331, 699n142
540n110, 541 §187(2)(a) … 366n151, 370n175, 371n183
§142(2)(b) … 540n114 §187(2)(b) … 375, 378, 378n210
§142, cmt. g … 543n135 §188 … 68n16, 76, 114n122, 114n125,
§145 … 68n16, 112nn109–110, 114n125, 147n2, 151n26, 352, 353, 355, 356, 366,
150, 518, 520, 533, 697, 697n127, 702 369n171, 375, 381, 387, 496, 500, 503,
§145, cmt. e … 179n13 512, 515, 516, 518, 702
§145(2) … 148 §188, cmt. b … 356n87, 357n89
§145(2)(d) … 204n136 §188, cmt. c … 357n89
§§146–151 … 113n118 §188(1) … 352n59, 355n74
§146 … 148n7, 314 §188(2) … 352n59, 355n74
§146, cmt. d … 231n285 §188(3) … 352n59
§152 … 113n117 §§189–192 … 354n71
§§153–155 … 113n118 §§189–193 … 113n118
§156 … 114n119 §§189–197 … 353n61, 355
§157 … 114n119 §189 … 353n62
§158 … 114n119 §190 … 353n63
§159 … 114n119 §191 … 353n64
§160 … 114n119 §192 … 353n65, 518
§161 … 114n121 §193 … 353n66, 354n71, 496, 497, 500, 502,
§162 … 114n119 503, 512, 515, 516, 696, 696n121
§163 … 114n121 §193, cmt. f … 502n37
§164 … 114n119 §§194–197 … 354n71
§165 … 114n119 §194 … 353n67
§166 … 114n119 §195 … 353n68
§168 … 114n121 §196 … 113n118, 137n54, 354n69, 357
§169 … 114n120 §197 … 354n70, 356, 357
§§170–171 … 114n121 §197, cmt. a … 354n70
§171 … 697, 697n127 §197, cmt. c … 357
§171, cmt. d … 697n126 §198 … 114n123, 381, 381nn223–224, 480,
§172 … 114n119 480n289
§§173–174 … 114n121 §§198–202 … 354n72
§175 … 113n118 §§198–207 … 355
§§187–188 … 354n69, 354n73, 381, 384 §198, cmt a … 381n226, 383n239, 383n240
§187 … 150, 152n27, 345n21, 346, 347, §199 … 114n124, 384n246
359n103, 365, 366, 366n149, 369, 376, §203 … 355, 355n74
381, 387, 414, 431, 698, 698n138, 699 §§204–205 … 354n72
§187, cmt. b … 382n230 §207 … 354n72
§§222–243 … 700n149 §263 … 617n156, 620n176

§§222–266 … 700n148 §265 … 617nn155–156
§§223–224 … 582n7 §283 … 554n8, 557
§223 … 113n116, 353n62, 582n12, §283, cmt. h … 556n16
700nn150–151 §283, cmt. i … 555n14, 556n16
§223, cmt. a … 582n13 §283, cmt. j … 555n9
§223, cmts. c–d … 582n13 §284 … 557, 557n18
§§225–232 … 113n116, 700n150 §284, cmts. b–c … 557n19
§225 … 582n8 §284, cmt. c … 557n20
§§226–227 … 582n9 §285 … 113n115, 568n91, 700n149
§§228–230 … 582n10 §285, cmt. a … 568n91
§229 … 618n157, 618n158 §286 … 113n115, 700n149
§§231–232 … 582n11 §287 … 575n123, 577
§§233–234 … 604n95 §§289–290 … 578n145
§234 … 700n152 §289 … 113n115
§§236–239 … 617n155 §291 … 354n69
§§236–242 … 617n153
Restatement (Third) of Foreign Relations Law
§236 … 76n60, 618n160, 700n150, 700n153
§111(1) … 626n5
§§237–238 … 618n159
§111, cmt. a … 626n8
§237 … 700n153
§111, cmt. b … 626n8
§§239–242 … 76n60, 700n150
§111, cmt. c … 626n6, 626n7
§239 … 700n154
§403, cmt. g … 626n10
§240 … 618n157
§415, cmt. j … 647n169
§§241–242 … 617n155, 700n154
§443 … 35n119, 36n126
§244 … 584nn19–21
§483 … 85n116
§§245–255 … 113n115, 700n149
§512 … 636n80
§245 … 584n22
§721 … 627n15
§246 … 584n23, 585n24
§247 … 594n65 Restatement of the U.S. Law of International
§258 … 604n96 Commercial Arbitration, Tentative Draft
§258(2) … 604n94 §2-12(c) … 480n288, 481n292
§259 … 605n98 §2-13 … 481n295
§§260–265 … 113n115, 617n154, 700n149 §2-13, cmt. … 482nn296–297
§260 … 76n61, 617n156 §2-14 … 481n295
§§261–262 … 617n156 §2-15 … 482n299
§§261–263 … 617n155 §2-15, cmt. c … 483n301
§261 … 76n61 §2-16 … 486n324
§§263–265 … 76n61 §4-18, cmt. b … 490n342
Index
AAA. See American Arbitration Association American Stock Exchange (AmEx)

Accursius (1182-1263), 47 arbitration clauses, 488
“Act of state” doctrine, 35–36 party autonomy, 407
ADA. See Americans with Disabilities Act Americans with Disabilities Act of 1990 (ADA),
of 1990 635, 639–641, 669–670
Admiralty law, 438–441, 642 Anational law, 5. See also Nonstate norms;
Admissibility of evidence, 69–72 “Rules of law”
Adoption of children, 578–579 Antiquities, 588–589
Equal Protection Clause, 579 Anti-rulism, 97–98
Full Faith and Credit Clause, 579 Anti-Terrorist Act of 1991 (ATA), 629–630
jurisdiction, 578–579 Antiterrorist and Effective Death Penalty
Restatement (Second) of Conflict of Laws, 578 Act of 1996
Airplane crashes conduct-regulation conflicts, 267–268
conduct-regulation conflicts, 253, 258, 260–261 foreign law conflicts, 630
products liability, 276–277, 327 Application of choice-of-law rules, 68–86
ALI. See American Law Institute evidence, 69–72
Aliens, 18, 30, 32, 557n21, 628, 633, 643 foreign tax-law exception, 85–86
alien crews on vessels, 638 overview, 64
Alien Tort Statute of 1789 (ATS) penal-law exception, 82–84
“focus test,” 666 public policy exception, 78–82
foreign law conflicts, 658–668 remission, 74
Kiobel case, 660–662 renvoi, 73–78
post-Kiobel case law, 662–668 substance vs. procedure, 68–73
Sosa case, 658–660 Arbitration clauses, 462–491
Alito, Samuel, 662, 664 American Arbitration Association
Alternative-reference rules, 681–682 International Arbitration Rules, 487–489
American Arbitration Association (AAA) applicable law, 487–491
arbitration clauses, 487–489 arbitrability, 481–484
International Arbitration Rules, 487–489 COGSA, 476–477
party autonomy, 407 consumer contracts, 469–472
American Law Institute (ALI), 54, 56, 111–112, contractual capacity, 480
153, 364–365, 539, 677, 694, 697. See also domestic interstate arbitration, 462–473
specific Restatement employment contracts, 468–469
779
780 Index
Arbitration clauses (Contd.) Bartolus of Sassoferrato (1313-1357), 47–48

Federal Arbitration Act, 463–466, 470, Baxter, William F., 94, 105–106, 188n56, 679–680
473–476, 478 Beale, Joseph H., 53–58, 69, 93, 95, 178,
foreign arbitration, 473–491 364–365, 582, 676, 701
formation of arbitration agreement, 480–481 Berman, Paul, 115
governing law, 478–486 “Better law” approach, 106–108, 170–173
International Chamber of Commerce, 487 biases in, 171–172
Jones Act, 484–486 de-emphasis of, 173
lex fori, 479 early case law, 171–172
lower court case law, 468–472 eclecticism, 173
New York Convention, 473–474, 478–482, federalism, 24, 30
484–486, 489–490 products liability, 314–315, 331–332
overview, 5, 462–465 selectivist approach, 107n82
Panama Convention, 473–474 statutes of limitations, 537
public policy exception, 484–486 Bibliography, 10–11
Restatement (Second) of Conflict of Bilateralism, 50, 641–644
Laws, 480 Blending laws, 3–4, 48
Restatement of U.S. Law of International Bodin, Jean, 49
Commercial Arbitration (draft), 480–483, Borchers, Patrick, 115, 686–687
481n292, 486, 489–490 Borrowing statutes, 526–527, 527n24
“rules of law,” 487–488, 488n336 Brennan, William, 25n45, 551
scope of, 481–482 Breyer, Stephen, 467, 640, 648
Seaman’s Wage Act, 486 Briggs, Adrian, 382
Securities Exchange Act, 474 Brilmayer, Lea, 116
separability of, 472–473 Brussels I Regulation (EU)
Sherman Act, 466–467 forum selection clauses, 436, 441, 441n42,
stock exchanges, 488 447, 447n69–447n70, 450
Supreme Court case law, 465–468, 473–477 party autonomy, 413
UNCITRAL Model Law, 472, 472n235, Buxbaum, Hanna, 116
487–488 Bybee, Jay, 666
UNIDROIT, 487–488
validity of, 481–482 Cabranes, José A., 662
Articles of Confederation, 19 California
Artistic property, 589–592 Civil Code, 346
Asbestos Equipment Dealers Act, 430
conduct-regulation conflicts, 264–265 Family Code, 606
products liability, 275–276, 287, 311, 322, Holocaust Victim Insurance Relief Act,
329–333 33–34, 34n113
ATA (Anti-Terrorist Act of 1991), 629–630 Probate Code, 607
ATS. See Alien Tort Statute of 1789 Capacity, contractual, 380–381
Austria Cardozo, Benjamin, 79, 83–84, 360, 375
Civil Code, 592 “Car-owner statutes,” 186, 239–240, 246
Nullification Act, 592 Carriage of Goods by Sea Act of 1992 (COGSA),
Automobile insurance, 496–501 476–477
contracts, 500–501 Categories of conflicts, 6–7
interest analysis, 501, 505–508 Cavers, David F., 57, 61, 93–94, 96–98, 106, 174,
lex loci contractus, 496, 499 694–695n112, 703
lex loci delicti, 499 Center of gravity approach. See also Grouping
public policy exception, 501 of contacts approach; Significant-contacts
Restatement (Second) of Conflict of Laws, approach
496–497, 499–500 insurance, 511
underinsured motorist coverage, 496–497, statutes of limitations, 529–530
500–501 theoretical development, 130–134, 137, 154,
uninsured motorist coverage, 498, 500–501 162–163
Index 781
Certification, 42n164 Weintraub in, 109–110

Characterization, 65–67 Choice of law rules
domestic relations, 66 application of, 68–86. See also Application of
insurance, 65–67 choice-of-law rules
lex causae, 66–67, 67n14 characterization, 65–67. See also
lex fori, 66, 67n14 Characterization
lex loci contractus, 65–66 components, 63–64
lex loci delicti, 65 domicile, 86–87
overview, 64 judicial notice, 87–92
Restatement (First) of Conflict of Laws, 65–67 localization, 67–68. See also Localization
Restatement (Second) of Conflict of Laws, 66–67 overview, 63–64
torts, 66 proof of foreign law, 87–92
Charming Betsy presumption, 626, 644, 647–648 Restatement (Third) of Conflict of Laws
Childress, Donald, 116 (proposed), 700–703
Child support, 569–571 unilateral rules, 494–495
Choice of court clauses. See Forum selection waivable vs. non-waivable rules, 369
clauses CISG (United Nations Convention on Contracts
Choice of forum clauses. See Forum selection for the International Sale of Goods),
clauses 349–352
Choice of law “revolution,” 93–121 Citizenship, 87, 474
anti-rulism, 97–98 Civil Rights Act of 1964, 646
assumptions about state interests, 99–100 Civil unions, 559n25
“better law” approach, 106–108, 170–173. Clermont, Kevin M., 445, 448, 457–4548
See also “Better law” approach Codifications. See also specific codification
Cavers in, 96–97 American, 181–182
“combined modern” approaches, 173–174 choice of law generally, 705–708
comparative impairment, 105–106, 165–168 foreign countries, 182–183, 202–203,
consequences-based approach, 109–110 705–708
contemporary scholarship, 115–121 loss-distribution conflicts, 181–183, 202–203
Cook in, 94–96 COGSA (Carriage of Goods by Sea Act of 1992),
Currie in, 97–106. See also Currie, Brainerd 476–477
direct conflicts, 101n44 Colangelo, Anthony, 116
“domestic method,” 98 “Combined modern” approaches, 173–174
false conflicts, 100–103 Comity, 35
forum favoritism, 103 Commentaries (Story), 53
functional analysis, 108–109 Commentary (Weintraub), 110
governmental interest analysis, 98–99, 163 Commentators, 47–49
in-between conflicts, 100–103 Commerce Clause, 16, 30n83
inverse conflicts, 101n44 Commercial liability insurance, 502–518
Leflar in, 106–108 environmental pollution insurance, 502–509.
lex fori, 168–170 See also Environmental pollution
local law theory, 94 insurance
methodological pluralism, 145–150. See also products liability insurance, 510–512
Methodological pluralism punitive damages, 512–518
modified interest analysis, 164–165 Common-domicile cases, 194–204
overview, 93–94 converse-Babcock pattern, 196–199
Reese in, 111–115 descriptive rule, 200–201
Restatement (Second) of Conflict of Laws, foreign codifications, 202–203
111–115, 151–154. See also Restatement Oregon codification, 690, 691n92
(Second) of Conflict of Laws preexisting relationships, 204
significant-contacts approach, 154–155 quasi-statutory rules, 201–202
Trautman in, 108–109 states with same law, 203
true conflicts, 100–103, 101n45, 109n93 statutory rules, 201–202
von Mehren in, 108–109 Common-law marriage, 555n10
782 Index
Community property Restatement (Second) of Conflict of Laws,

moving from community property state to 231, 240
separate property state, 608–609 rules, 183, 247–249, 268–269
moving from separate property state to Schultz case, 179–180
community property state, 605–608 Sherman Act, 243
overview, 602–603 states of conduct and injury imposing
Comparative impairment punitive damages, 256–257
statutes of limitations, 537–539 states of defendant’s domicile and conduct
theoretical development, 105–106, 165–168 imposing punitive damages, 252–256
Comparative negligence, 142, 195n78, 235, states of injury and defendant’s domicile
298n132 imposing punitive damages, 257–258
Complex Litigation Project (ALI), 677, 697 terrorism, 246–247, 267–268
Conduct-regulation conflicts, 229–269 typical patterns, 229–230, 250–252
airplane crashes, 253, 258, 260–261 Conflict of Laws (Story), 52–53
all three contacts imposing punitive Conflict preemption, 33, 33n105
damages, 252 Conflicts of laws
American codifications, 181–182 categories of conflicts, 6–7
Antiterrorist and Effective Death Penalty Act, choice of law as part of, 1
267–268 conduct-regulation conflicts, 229–269. See also
asbestos, 264–265 Conduct-regulation conflicts
Babcock case, 179–180 defined, 2
“car-owner statutes,” 239–240, 246 direct conflicts. See Direct conflicts
conduct and injury in different states prescribing false conflicts, 100–103
same standards of conduct, 237–238 federal-international conflicts, 625–670. See
conduct and injury in same state, 231–237 also Foreign law conflicts
conduct in state with higher standard and foreign law conflicts, 625–670. See also
injury in state with lower standard, 238–242 Foreign law conflicts
conduct in state with lower standard and injury horizontal conflicts, 6–7
in state with higher standard, 242–247 in-between conflicts, 100–103
“dram shop acts,” 239, 244–245 interstate conflicts, 6
“effects doctrine,” 243 intra-national conflicts, 6
EU Rome II Regulation, 182–183 inverse conflicts. See Inverse conflicts
Federal Corrupt Practices Act, 241 loss-distribution conflicts, 190–229. See also
foreign codifications, 182–183 Loss-distribution conflicts
generic conflicts, 229–249 state-international conflicts, 6
historical development, 177–179 true conflicts. See True conflicts
interest analysis, 241–242, 268 vertical conflicts, 6
lex loci delicti, 238 Conflit mobile, 584–585, 592–593
loss-distribution conflicts distinguished, 177–189 Conformity Act of 1872, 40
no contacts imposing punitive damages, Consent
266–268 in forum selection clauses, 435–442
only state of conduct imposing punitive party autonomy, 381–382
damages, 259–261 Consequences-based approach, 109–110
only state of defendant’s domicile imposing Consumer contracts
punitive damages, 258–259 arbitration clauses, 469–472
only state of injury imposing punitive party autonomy, 422–426
damages, 261–266 Contacts and interests test, 23–27
overview, 229 Contemporary scholarship, 115–121
pertinent contacts, 229–230, 250–252 Contracts, 343–433
practical use of distinction, 188–189 arbitration, contractual capacity, 480
primary purpose, 186–188 automobile insurance, 500–501
punitive damages, 249–269 CISG, 349–352
purpose vs. effect, 184–186 consumer contracts, arbitration, 469–472
Index 783
employment contracts, arbitration, 468–469 comparative impairment, 105–106, 165–168

with forum selection clauses, 361–433, contributions of, 103–105
447–456. See also Party autonomy “domestic method,” 98
interest analysis, 346–347, 358–359n99 false, true, and in-between conflicts,
lex causae, 343n2, 359–360 100–103
lex fori, 359–360 foreign law conflicts, 634
lex loci contractus, 344 forum favoritism, 103
localization, 67 governmental interest analysis, 98–99, 163,
modern approaches, 358–361 679–680, 692–693n201
in New York, 162–163 lex fori, 168–170
Oregon codification, 688–690 modified interest analysis, 164–165
party autonomy, 361–433. See also Party products liability, 279, 336–337
autonomy statutes of limitations, 544
public policy exception, 359n103, 360–361 torts, 179–180n13, 191, 192n70
Restatement (First) of Conflict of Laws, 59, Custody of children, 571–574
343–344 international cases, 572–574
Restatement (Second) of Conflict of Laws, interstate cases, 571–572
344–345n13, 345–348, 352–358 UCCJEA, 571–572
Restatement (Third) of Conflict of Laws
(proposed), 698–699 Dane, Perry, 116
significant-contacts approach, 348, 358–359 d’Argentré, Bertrand, 49, 49n15
statutory choice of law rules, 346–348 Death on the High Seas Act of 1920
Stolarz case, 162–163 (DOHSA), 633
traditional approach, 343–345 Defense of Marriage Act of 1996 (DOMA)
U.C.C., 348–349, 698 Full Faith and Credit Clause, 562–563
without forum selection clauses, 343–361, horizontal DOMA, 561–563
445–447 legitimacy and filiation, 577
Contributory negligence, 82n95, 196–197, overview, 553–554
231–232, 235, 293n103, 299n138, 334 same-sex marriage, 559–566
Conventions, 4, 4n9 vertical DOMA, 559–561
Cook, Walter W., 56n44, 93–96, 106 Dépeçage, 125, 685–686
Coquille, Guy de (1523-1603), 49 DES, 275n6
Costa Rica Code of Civil Procedure, 614 Dicey, Arthur V., 55
Cox, Stanley, 116 Digest (Justinian), 47, 48n12, 49
Credit Repair Organizations Act of 1996, 466 Direct conflicts. See also True conflicts
Cross-border torts, 218–224 loss-distribution conflicts, 204–210
conduct and tortfeasor’s domicile in state products liability, 278–301
whose law favors tortfeasor, injury and theoretical development, 101n44
victim’s domicile in state whose law favors Discovery rule, 597–600
victim, 218–221 Distributorship contracts, 426–432
conduct and tortfeasor’s domicile in state Diversity jurisdiction, 38–42
whose law favors victim, injury and application of rules, 72–73
victim’s domicile in state whose law favors choice of law, 41–42
tortfeasor, 221–222 constitutional basis, 38n142
Oregon codification, 691 procedural law, application of, 40–41
rules, 223–224 substantive law, application of, 38–40
Currie, Brainerd, 97–106, 163–170 Divorce, 566–569
generally, 50, 82, 93–97, 111–112, 676, Full Faith and Credit Clause, 569
694–695n112, 703 jurisdiction, 566–569
anti-rulism, 97–98 Restatement (Second) of Conflict of Laws,
apparent conflicts, 100–101n43 568, 568n92
assumptions about state interests, same-sex marriage, 564n65
99–100, 100n38 talaq divorce, 612
784 Index
DOHSA (Death on the High Seas Act of laissez-faire, 23–28

1920), 633 life insurance, 519
DOMA. See Defense of Marriage Act of 1996 overview, 17–18, 22–23
Domestic interstate arbitration same-sex marriage, 561–562
consumer contracts, 469–472 statutes of limitations, 548
employment contracts, 468–469 Dumoulin, Charles, 49, 49n15, 362
lower court case law, 468–472 Dutch Commentators, 49–50
separability of arbitration clauses, 472–473
Supreme Court case law, 465–468 Eclecticism, 703
“Domestic method,” 98 “Effects doctrine”
Domestic relations conduct-regulation conflicts, 243
adoption of children, 578–579. See also foreign law conflicts, 644–650
Adoption of children Egyptian law (ancient), 46, 362
characterization, 66 Ehrenzweig, Albert, 50
child support, 569–571 Elginism, 585
custody of children, 571–574. See also Employment contracts
Custody of children arbitration, 468–469
divorce, 566–569. See also Divorce party autonomy, 415–422
filiation, 574–578. See also Filiation English conflict of laws doctrine, 51–52
legitimacy, 574–578. See also Legitimacy Environmental pollution insurance, 502–509
marriage, 553–558. See also Marriage interest analysis, 508–509
overview, 553 overview, 502–503
same-sex marriage, 558–566. See also Same- pollution exclusion clauses, 502
sex marriage Restatement (Second) of Conflict of Laws,
Domicile 503–507
choice of law rules, 86–87 “site-specific” approach, 505–509
common-domicile cases, loss-distribution “sudden and accidental,” 502
conflicts, 194–204. See also Common- “uniform contract interpretation” approach,
domicile cases, loss-distribution conflicts 503–505
conduct-regulation conflicts, 252–259, Equal Protection Clause
266–268. See also Conduct-regulation generally, 30n83
conflicts adoption of children, 579
defined, 190n66 overview, 17–18
products liability law, 290–291, 293–295, same-sex marriage, 561–562
297–301, 319–325. See also Products liability Erie doctrine, 39–41, 72–73
Restatement (First) of Conflict of Laws, 86 Escape clauses, 682–683
Restatement (Second) of Conflict of Laws, 86 European Union Regulations, 708–709. See also
split-domicile cases, loss-distribution specific Regulation
conflicts, 204–227. See also Split-domicile Evidence rules, 69–72
cases, loss-distribution conflicts Extraterritoriality, 625–670
Dormant Commerce Clause, 16 presumption against, 635–636, 646, 654–668
“Dram shop acts,” 186, 239, 244–245
Drug Trafficking Vessel Interdiction Act of False conflicts, 100–103
2008, 632–633 Favor laesi
Dual sovereignty, 8 products liability, 341
Due Process Clause torts, 272
choice of law, control of, 28–30 FDA (Food and Drug Administration), 312,
early jurisprudence, 22–23 312n223
federalism, 22–30 Federal Arbitration Act of 1925
Full Faith and Credit Clause, interplay arbitration clauses, 463–466, 470, 473–476, 478
with, 22–30 forum selection clauses, 438, 460–461
interventionism, 23–28 party autonomy, 427
jurisdiction, control of, 28–30 Federal Corrupt Practices Act of 1977, 241
Index 785
Federalism, 15–42 Finch, Edward R., 365

“act of state” doctrine, 35–36 Finland Inheritance Code, 621
application of law in federal courts, 37–42 FISA (Foreign Sovereign Immunities Act
“better law” approach, 24, 30 of 1976)
comity, 35 federalism, 36–37
contacts and interests test, 23–27 foreign law conflicts, 630
diversity jurisdiction, 38–42. See also “Floating” clauses, 436n2
Diversity jurisdiction “Focus test,” foreign law conflicts, 666
division of lawmaking competence between Food and Drug Administration (FDA), 312,
federal and state governments, 15–17 312n223
Due Process Clause, 22–30. See also Due Foreign arbitration
Process Clause applicable law, 487–491
Federal Rules of Civil Procedure, 40 arbitrability, 481–484
foreign law conflicts, 31–37. See also Foreign contractual capacity, 480
law conflicts formation of arbitration agreement, 480–481
Foreign Sovereign Immunities Act, 36–37 governing law, 478–486
“foreign sovereign immunity” doctrine, 35–37 public policy exception, 484–486
FTCA, 38 scope of arbitration clauses, 481–482
Full Faith and Credit Clause, 18–22. See also Supreme Court case law, 473–477
Full Faith and Credit Clause validity of arbitration clauses, 481–482
insurance, 23–27 Foreign Judgments Project (ALI), 677
jurisdiction, 28–30 Foreign law conflicts, 625–670
limitations on state choice of law, 17–37 generally, 6
minimum contacts test, 28–30 ADA, 635, 639–641, 669–670
Privileges and Immunities Clause, 30–31 aliens in US, statutes applicable to, 633
procedural issues, 27–28 Alien Tort Statute, 658–668
vested rights doctrine, 23 ambiguous statutes, 634–668
workers’ compensation, 22n29, 24 Anti-Terrorist Act, 629–630
Federal law Antiterrorist and Effective Death Penalty
federalism, 15–42. See also Federalism Act, 630
foreign law vs., 625–670. See also Foreign law bilateralism, 641–644
conflicts citizens injured abroad, statutes applicable to,
national legislation proposals, 677–678 629–630
recommendations, 677–678 citizens present or acting abroad, statutes
state law compared, 7–8 applicable to, 628–629
Federal question jurisdiction, 41n159 conflict preemption, 33, 33n105
Federal Rules of Civil Procedure Congressional power, 625–628
federalism, 40 Constitutional limits on Congressional power,
forum selection clauses, 442 627–628
judicial notice, 88–91 Death on the High Seas Act, 633
Federal Rules of Evidence, 72–73, 73n46 domestic conduct with foreign effects,
Federal Tort Claims Act of 1946 (FTCA) 650–652
federalism, 38 Drug Trafficking Vessel Interdiction Act,
foreign law conflicts, 650–654 632–633
FFCCOSA (Full Faith and Credit for Child “effects doctrine,” 644–650
Support Orders Act of 1994), 569–571 executive vs. judicial function, 35–37
Field, David Dudley, 346 expressly applicable statutes, 628–634
Field preemption, 33, 33n105 federalism, 31–37
Fifth Amendment, 560–561 federal vs. state competence, 32–34
Filiation, 574–578 field preemption, 33, 33n105
DOMA, 577 “focus test,” 666
Restatement (Second) of Conflict of Laws, 577–578 foreign conduct with domestic effects,
significant-contacts approach, 577 644–646
786 Index
Foreign law conflicts (Contd.) Foreign Trade Antitrust Improvements Act

Foreign Sovereign Immunities Act, 630 of 1982 (FTAIA), 648–650
Foreign Trade Antitrust Improvements Act, Forum favoritism, 103
648–650 Forum non conveniens, 667
forum non conveniens, 667 Forum selection clauses, 435–462
FTCA, 650–654 actions filed in chosen court, 444
“headquarters doctrine,” 650–652 actions not filed in chosen court, 445–456
high seas, statutes applicable to, 632–633 admiralty law, 438–441
High Seas Clause, 632 case law applying chosen law, 449–452
“internal affairs doctrine,” 636–641 case law applying forum law, 448–449
International Convention for the Safety of Life choice of law clauses, interplay with, 458–460
at Sea, 640 consent in, 435–442
internationalism, 648–650 contracts with, 361–433, 447–456. See also
international law limits on Congressional Party autonomy
power, 625–627 contracts without, 445–456
Jones Act, 634, 641–643, 670 critique of, 456–460
Kiobel case, 660–662 enforceability vs. interpretation, 452–456
Labor Management Relations Act, 637–638 EU Brussels I Regulation, 436, 441, 441n42,
Lauritzen case, 641–644 447, 447n69–447n70, 450
Logan Act, 629 EU Rome I Regulation, 437
Marine Mammals Protection Act, 633 exclusive jurisdiction, 435–437
Maritime Drug Law Enforcement Act, 632 Federal Arbitration Act, 438, 460–461
maritime law, 636–644 Federal Rules of Civil Procedure, 442
methodology, 668–670 “floating” clauses, 436n2
multilateralist approaches, 634n64 governing law, 442–460
National Prohibition Act, 637 Hague Choice of Court Convention, 436–437,
overview, 31–32 444–445n55, 446, 446n67
persons acting under foreign law, statutes interpretation vs. enforceability, 452–456
applicable to, 631–632 lex fori, 445, 447–449, 456
political question doctrine, 35, 35n118 lex loci contractus, 444
post-Kiobel case law, 662–668 Lugano Convention, 436
Restatement (Third) of Conflict of Laws nonexclusive jurisdiction, 435–437
(proposed), 697–698 overview, 435–442
Restatement (Third) of Foreign Relations, Restatement (Second) of Conflict of Laws, 437
626–627, 626n7–626n8, 648 Restatement (Third) of Conflict of Laws
Securities Exchange Act, 655–658 (proposed), 699
Sherman Act, 635–636, 645–649, 670 “seized” forums, 445–456
significant-contacts approach, 669 separability of, 460–462
silent statutes, 634–668 “service of suit” clauses, 436n2
Sosa case, 658–660 Forum shopping, 39, 41–42
statutory interpretation, 634 Fourteenth Amendment, 561
territoriality, 635–636, 646–650, 654–668 France Civil Code, 609
Title VII, 646 Franchise contracts, 426–432
Torture Victim Protection Act, 631–632 Frankfurter, Felix, 567
Trading with the Enemy Act, 628–629 FTAIA (Foreign Trade Antitrust Improvements
United Nations Convention on the Law of Act of 1982), 648–650
the Sea, 632 FTCA (Federal Tort Claims Act of 1946)
Foreign Sovereign Immunities Act of federalism, 38
1976 (FISA) foreign law conflicts, 650–654
federalism, 36–37 Full Faith and Credit Clause
foreign law conflicts, 630 generally, 7, 677
“Foreign sovereign immunity” doctrine, 35–37 adoption of children, 579
Foreign tax-law exception, 85–86, 85n116 Currie on, 99
Index 787
divorce, 569 Hague Conventions, 709–710. See also specific

DOMA, 562–563 Convention
Due Process Clause, interplay with, 22–30 Hague Principles on Choice of Law on
federalism, 18–22 International Commercial Contracts
as to judgments, 20–22 generally, 699n141
legislative history, 19–20 party autonomy, 364, 377, 386, 406–408
overview, 17–18 Hand, Learned, 94, 626, 644–645
property, 583 Harlan, John F., 33, 337
purpose of, 18–19 Hastie, William H., 568
recognition of judgments, 21n27 Hay, Peter, 89, 116
same-sex marriage, 562–563 “Headquarters doctrine,” 650–652
scope of, 20, 20n22 High Seas Clause, 632
statutes of limitations, 548 Hill, Alfred, 116
text of, 18–19 Historical development of choice-of-law
Full Faith and Credit for Child Support Orders doctrine, 45–53
Act of 1994 (FFCCSOA), 563n56, 569–571 American doctrine, 52–53
Functional analysis, 108–109 bilateralism, 50
Commentators, 47–49
Ginsburg, Ruth Bader, 467, 640–641 Dutch Commentators, 49–50
Glossators, 47 Egyptian law, 46
Governmental interest analysis, 98–99, 163, English doctrine, 51–52
679–680, 692–693n201 Glossators, 47
Greek law, 46, 362 Greek law, 46
Grouping of contacts approach. See also Center multilateralism, 50
of gravity approach; Significant-contacts overview, 45–46
approach Restatement (First) of Conflict of Laws, 56–61.
theoretical development, 149, 154, 161–162 See also Restatement (First) of Conflict
torts, 227 of Laws
Growth in caseload, 675–676n21 Roman law, 46–48
Guantanamo Bay Naval Base, 628 Selectivist method, 48
statuists, 48–49
Habitual residence, 87 traditional choice of law system, 53–56. See
Hague Choice of Court Convention of 2005 also Traditional choice of law system
generally, 699 unilateralism, 50
forum selection clauses, 436–437, 444–445n55, Holmes, Oliver Wendell, 242–243, 635–636, 644
446, 446n67 Holocaust, artistic property, 589–592
Hague Conference of Private International Law, Horizontal conflicts, 6–7
695n116 Huber, Ulrich, 1–2, 49–50, 50n17, 52,
Hague Convention on Maintenance, 569–570n98 362, 635
Hague Convention on the Civil Aspects of Hybrid systems, 376–377
International Child Abduction of 1980,
572–574 ICARA (International Child Abduction
Hague Convention on the Conflict of Laws Remedies Act of 1988), 572
Relating to the Form of Testamentary ICC (International Chamber of Commerce), 487
Dispositions of 1961, 619–620n169 Illinois
Hague Convention on the Law Applicable to Beer Industry Fair Dealing Act, 427
Estates, 621–622, 622n192 Franchise Disclosure Act, 430
Hague Convention on the Law Applicable to Sales Act, 429
Products Liability, 339–341 Immovables
Hague Convention on the Law Applicable to marital property, 614–615
Trusts, 621 overview, 581–583
Hague Convention on the Protection of Cultural In-between conflicts, 100–103
Property during Armed Conflict, 587 Indemnification of punitive damages, 517n128
788 Index
Insurance, 493–521 Internationalism, 648–650

automobile insurance, 496–501. See also Interracial marriage, 554
Automobile insurance Interstate conflicts, 6
center of gravity approach, 511 Interventionism, 23–28
characterization, 65–67 Intra-national conflicts, 6
commercial liability insurance, 502–518 Intrastate torts, 204–218
environmental pollution insurance, 502–509. conduct, injury, and tortfeasor’s domicile in
See also Environmental pollution insurance state whose law favors tortfeasor, 205–208
federalism, 23–27 conduct, injury, and victim’s domicile in state
lex loci contractus, 494–495 whose law favors victim, 208–210
life insurance, 518–521. See also Life insurance direct conflicts, 204–210
overview, 493–495 Hurtado pattern, 214–215
products liability insurance, 510–512 inverse conflicts, 211–218
punitive damages, 512–518 Neumeier pattern, 211–214
Restatement (Third) of Conflict of Laws no-interest cases, 211–218
(proposed), 696 Oregon codification, 691
significant-contacts approach, 498, 521 rules, 215–218
Inter-American Convention on International true conflicts, 204–210
Commercial Arbitration (Panama Inverse conflicts. See also No-interest cases
Convention), 473–474 loss-distribution conflicts, 211–218
Inter-American Conventions, 710–711 products liability, 279, 301–328
Interest analysis theoretical development, 101n44
generally, 679–680 Islamic divorce, 612
adoption by states, 146–147 Isocrates (436-358 B.C.E.), 46
automobile insurance, 501, 505–508 Issue-by-issue analysis, 684–686
“combined modern” approaches, 173–174
conduct-regulation conflicts, 241–242, 268 Jackson, Robert H., 644
contracts, 346–347, 358–359n99 Jayme, Erik, 592–593n61
environmental pollution insurance, 508–509 Jones Act of 1920
governmental interest analysis, 98–99, 163, arbitration clauses, 484–486
679–680, 692–693n201 foreign law conflicts, 634, 641–643, 670
lex fori, 168 Judgment recognition, 1
lex loci contractus, 136–137 Judicial jurisdiction, 21
lex loci deliciti, 128, 130 Judicial notice of foreign law, 87–92
loss-distribution conflicts, 206–207, Judiciary Act of 1789, 38–39
217–218, 227 Juenger, Friedrich K. “Fritz,” 94, 106–107n80,
modified interest analysis, 164–165 675, 694–695n112
products liability, 279, 311–318, 331, 336–337 Jurisdiction
public policy exception, 82 generally, 1, 3
renvoi, 78 adoption of children, 578–579
statutes of limitations, 529, 535–539, 535n75 diversity jurisdiction, 38–42. See also Diversity
theoretical development, 96, 101, 105, 108, jurisdiction
111–112, 115, 148–149 divorce, 566–569
“Internal affairs doctrine,” 636–641 Due Process Clause, 28–30
International Chamber of Commerce (ICC), 487 federalism, 28–30
International Child Abduction Remedies Act of federal question jurisdiction, 41n159
1988 (ICARA), 572 forum selection clauses, 435–437
International Convention for the Safety of Life at judicial jurisdiction, 21
Sea (SOLAS), 640 legislative jurisdiction, 21
International Institute for the Unification of penal-law exception, 82–83
Private Law (UNIDROIT) tag jurisdiction, 21, 29n79
generally, 5 Jus cogens, 361–362, 369
arbitration clauses, 487–488 Jus dispositivum, 361–362, 369
property, 587, 593n62, 594–595 Justinian, 47–49
Index 789
Kagan, Elena, 467 contracts, 344

Kansas Consumer Protection Act, 423–424 forum selection clauses, 444
Kay, Herma Hill, 116 insurance, 494–495
Kennedy, Anthony, 476, 550–551, 551n175, interest analysis, 136–137
639–640, 662 life insurance, 521
Kent, James, 346 marital property, 611
Klaxon doctrine, 8n31, 41–42, 549–551 post-Auten case law, 135–139
Korn, Harold, 116 punitive damages, insurability of, 513–514
Kozyris, Phaedon John, 117, 675 renvoi, 75–76
Kramer, Larry, 117 Restatement (First) of Conflict of Laws, 59, 61
Restatement (Second) of Conflict of Laws,
Labor Management Relations Act of 1947, 135–139, 141, 143, 151, 153
637–638 retreat of, 133–140
Laissez-faire, 23–28 traditional states, 141–143
Lando Commission, 488 W.H. Barber case, 133–134
Leflar, Robert A., 30, 94, 106–108, 111, 128, 130, Lex loci deliciti
148–149, 170–174, 314, 359, 703. See also interest analysis, 128, 130
“Better law” approach Lex loci delicti
Legislative jurisdiction, 21 automobile insurance, 499
Legitimacy, 574–578 Babcock case, 124–127, 271
DOMA, 577 characterization, 65
Restatement (Second) of Conflict of Laws, conduct-regulation conflicts, 238
577–578 dépeçage, 125
significant-contacts approach, 577 life insurance, 520
Lex causae loss-distribution conflicts, 190–191, 194, 196,
characterization, 66–67, 67n14 199–200, 213, 219, 225–227
contracts, 343n2, 359–360 loss-distribution vs. conduct-regulation issues,
party autonomy, 372, 374–376 125–126
statutes of limitations, 544–545, 552 post-Babcock case law, 127–133
Lex domicilii, 616 products liability, 274–275, 294–295, 299, 301,
Lex fori 308, 310, 319–320, 324, 326–328
generally, 1, 164 public policy exception, 81–82
arbitration clauses, 479 renvoi, 76, 78
characterization, 66, 67n14 Restatement (First) of Conflict of Laws, 58–59,
contracts, 359–360 61, 178
Currie on, 168–170 Restatement (Second) of Conflict of Laws, 128,
forum selection clauses, 445, 447–449, 456 130–133, 141, 143, 151, 153
interest analysis, 168 retreat of, 123–133
loss-distribution conflicts, 197, 206, 212, torts, 178–179, 269–270
216, 218 traditional states, 141–143
party autonomy, 372–374 Lex mercatoria, 5
products liability, 289–290, 308, 315–318, Lex originis, 594
321, 337 Lex patriae, 616
proof of foreign law, 88 Lex rei sitae originis
statutes of limitations, 533, 552 property, 59–60, 59n62, 581–583, 594–596
theoretical development, 50–51, 168–170 successions, 616
UCLLA, 531, 533–534 Life insurance, 518–521
Lex limitativa, 372–377 Due Process Clause, 519
Lex loci celebrationis, 554 lex loci contractus, 521
Lex loci contractus, 75–76 lex loci delicti, 520
Auten case, 133–134 Restatement (Second) of Conflict of Laws,
automobile insurance, 496, 499 518, 520
center of gravity approach, 133–134 Limitations of actions. See Statutes of limitations
characterization, 65–66 Little, Laura, 117
790 Index
Livermore, Samuel, 46 Restatement (Second) of Conflict of Laws,

Localization 197–198, 204, 206–207, 212–213
generally, 157, 690n89 rules, 184, 215–218, 223–224, 227–229
choice of law rules, 64, 67–68, 68n18, 68n18 Schultz case, 179–180
contracts, 344 split-domicile cases, 204–227
insurance, 493–494 states with same law, 203
party autonomy, 412 statutory rules, 201–202
Localizing rules, 412, 493–494 three-state conflicts, 224–227
Local law theory, 56n44, 94 true conflicts, 204–210
Logan Act of 1799, 629 two-state conflicts, 192–194
Loss-distribution conflicts, 190–229 typical patterns, 190–194
American codifications, 181–182 Louisiana codification
Babcock case, 179–180 alternative-reference rules in, 681–682
Babcock pattern, 194–196 catchphrase regarding choice of law in, 678–679
common-domicile cases, 194–204 certainty vs. flexibility in, 681–686
conduct, injury, and tortfeasor’s domicile in codification of choice of law in, 678–688, 702
state whose law favors tortfeasor, 205–208 dépeçage in, 685–686
conduct, injury, and victim’s domicile in state escape clauses in, 682–683
whose law favors victim, 208–210 general approach to choice of law in, 678–680
conduct and tortfeasor’s domicile in state goal of choice of law in, 678–680
whose law favors tortfeasor, injury and issue-by-issue analysis in, 684–686
victim’s domicile in state whose law favors marital property in, 607–608
victim, 218–221 methodology of choice of law in, 680–681
conduct and tortfeasor’s domicile in state operation of choice of law in, 686–688
whose law favors victim, injury and rules vs. “approaches” in, 683–684
victim’s domicile in state whose law favors soft connecting factors in, 682
tortfeasor, 221–222 statutes of limitations in, 544–546
conduct-regulation conflicts distinguished, Lugano Convention, 436
177–189
content of laws, 191–192 Mancini, Pasquale, 362
converse-Babcock pattern, 196–199 Mandatory rules, 361, 367, 369, 373, 377, 384n244,
cross-border torts, 218–224 393n301, 412n402, 413–415, 474, 699
descriptive rule, 200–201 Marine Mammals Protection Act of 1972, 633
direct conflicts, 204–210 Marital property, 602–615
EU Rome II Regulation, 182–183 agreements, 609–611
foreign codifications, 182–183, 202–203 case law, 609–615
historical development, 177–179 common law vs. civil law, 603–605
Hurtado pattern, 214–215 community property, 602–603
interest analysis, 206–207, 217–218, 227 conflicts problem, 603–605
intrastate torts, 204–218 immovables, 614–615
inverse conflicts, 211–218 lex loci contractus, 611
lex fori, 197, 206, 212, 216, 218 Louisiana approach, 607–608
lex loci delicti, 190–191, 194, 196, 199–200, moving from community property state to
213, 219, 225–227 separate property state, 608–609
Neumeier pattern, 211–214 moving from separate property state to
no-interest cases, 211–218 community property state, 605–608
overview, 190 moving spouses, 605–615
pertinent contacts, 190–191 pure borrowed-law approach, 606
practical use of distinction, 188–189 pure quasi-community property approach,
preexisting relationships, 204 606–607
primary purpose, 186–188 Restatement (First) of Conflict of Laws, 60
purpose vs. effect, 184–186 Restatement (Second) of Conflict of Laws, 611
quasi-statutory rules, 201–202 separate property, 602–603
Index 791
substantive law, 602–603 National Conference of Commissioners of

talaq divorce, 612 Uniform State Laws (NCCUSL), 4, 88,
taxation, 612–614 677–678. See also specific Uniform Law
traditional approach, 605–606 Nationality, 87
Maritime Drug Law Enforcement Act of 2006 National Labor Relations Act of 1935 (NLRA),
(MDLEA), 632 638–639
Maritime law, 636–644 National Labor Relations Board (NLRB), 638
Marriage, 553–558 National legislation proposals, 677–678
civil unions, 559n25 National Prohibition Act of 1919, 637
common-law marriage, 555n10 Necessary and Proper Clause, 16
convergence of law, 553–554 Negligence, 82n95, 161, 165, 183, 209, 212n197,
divergence of law, 553–554 214–215, 220–221, 236, 242–243, 304, 532,
divorce, 566–569. See also Divorce 541–542, 546, 652
DOMA. See Defense of Marriage Act of 1996 comparative negligence, 142, 195n78, 235,
incidents of, 556–558 298n132
interracial marriage, 554 contributory negligence, 82n95, 196–197,
marital property, 602–615. See also Marital 231–232, 235, 293n103, 299n138, 334
property dram shop cases, 244
Restatement (Second) of Conflict of Laws, 554–557 negligent hiring, 157
same-sex marriage, 558–566. See also negligent supervision, 160n72, 219n243
Same-sex marriage in product design. See Products liability
validity of, 554–556 Nelson, Dorothy Wright, 665
Marshall, John, 626, 644 Neumeier rules, 128n20, 148, 155–162, 190n66,
McDougal, Luther, 117 201, 203n131, 206, 208, 210, 215, 216n221,
MDLEA (Maritime Drug Law Enforcement Act 223n255, 225, 226n270, 227, 285, 292,
of 2006), 632 326, 334
Methodological pluralism, 145–150 New Jersey
caveats, 147–150 Domestic Partnership Act, 565
methodological camps, 145–147 Franchise Act, 460
relative inconsequence of methodology, 150 New York conflicts
Restatement (Second) of Conflict of Laws, Babcock case, 124–127, 179–180, 271
148–150 charitable immunity in, 156–157, 160–161
Mexico City Convention, 377, 386 contract conflicts in, 162–163
Michaels, Ralf, 117 Cooney case, 158–159n58, 158–160
“Mini-DOMAs,” 559 Edwards case, 161–162
Minimum contacts test, 28–30, 34 Equitable Distribution Law, 610
Minnesota Franchise Act, 430 Estates Powers and Trusts Law, 623
Modified interest analysis, 164–165 Gilbert case, 160–161
Moral turpitude, 83–84n111 interest analysis in, 160–163
Motor vehicles Neumeier case, 155–156. See also Neumeier rules
automobile insurance, 496–501. See also Schultz case, 156–158n55
Automobile insurance Stolarz case, 162–163
“car-owner statutes,” 186, 239–240, 246 tort conflicts in, 155–162
products liability, 315–318 New York Convention, 473–474, 478–482,
Movables, 584–602. See also Property 484–486, 489–490
Multidistrict Litigation Statute, 697 New York Stock Exchange (NYSE)
Multilateralism, 50, 98, 112, 634n64, 642, 703 arbitration clauses, 488
party autonomy, 407
Nafziger, James, 118 NLRA (National Labor Relations Act of 1935),
National Arbitration Forum (NAF), 471–472 638–639
National Association of Securities Dealers (NASD) NLRB (National Labor Relations Board), 638
arbitration clauses, 488 No-interest cases, 211–218. See also Inverse
party autonomy, 407 conflicts
792 Index
Nomenclature, 1–3 multiple choice of law, 386

conflict of laws, 2 nonstate norms, 406–409
private international law, 2–3 overview, 361–367
Non-economic loss, 307–308 parameters of, 389
Nonstate norms, 5, 406–409, 487–488, 488n336 partial choice of law, 386
presumptively weak parties, 409–433
Oregon codification principle of, 361–364
certainty vs. flexibility in, 693 procedural issues, 400–405
codification of choice of law in, 688–693, 702 public policy exception, 371–379
common-domicile cases in, 690, 691n92 renvoi, 406
contracts in, 688–690 requirements, 369–379
cross-border torts in, 691 Restatement (First) of Conflict of Laws,
general and residual approach in, 691–692 364–365
general rules in, 690–691 Restatement (Second) of Conflict of Laws,
intrastate torts in, 691 365–367, 369–371, 374–376, 378, 382–385,
split-domicile cases in, 691 387, 389, 392, 400–401, 405, 408, 414–415,
torts in, 690–693 418, 425–426, 429, 431–432
scope of, 368–369
Panama Convention, 473–474 scope of choice of law clauses, 388–409
Parental Kidnapping Prevention Act of 1980 significant-contacts approach, 370, 403, 428
(PKPA), 563n56, 571–572 substantial relationship vs. reasonable basis,
Party autonomy, 361–433 370–371
American model, 414–432 time considerations, 384–386
capacity, 380–381 torts, applicability to, 391–400
civil law model, 410–414 U.C.C., 365–367, 370, 374–375, 408, 415
conflicts law, 405–406 universality, 361–364
consent, 381–382 validity of agreement, 379–384
consumer contracts, 422–426 waivable vs. non-waivable rules, 369
distributorship contracts, 426–432 Penal-law exception, 82–84
employment contracts, 415–422 Perdue, Wendy C., 185
EU Brussels I Regulation, 413 Permanent Court of International Justice, 644
EU Rome I Regulation, 377, 383–386, 406, 413 Personality, 177–178
EU Rome II Regulation, 392–393 Peterson, Courtland, 118
EU Rome Convention, 377, 412–413 Pharmaceuticals and products liability, 275n6,
exempted contracts or issues, 389–390 311–314
existence of agreement, 379–384 PKPA (Parental Kidnapping Prevention Act of
Federal Arbitration Act, 427 1980), 563n56, 571–572
formation of agreement, 381–382 Plurilegalism, 9–10
form of agreement, 382–384 Political question doctrine, 35, 35n118
franchise contracts, 426–432 Pollution insurance. See Environmental pollution
Hague Principles on Choice of Law on insurance
International Commercial Contracts, 364, Posnak, Bruce, 118
377, 386, 406–408 Posner, Richard, 73, 91–92, 183, 220, 235–236,
historical development, 361–364 334–335, 444
hybrid systems, 376–377 Pothier, Robert, 362
invalidating law, 386–388 Powell, Lewis, 25n45
jus cogens, 361–362, 369 Praetor peregrinus, 3, 46–48
jus dispositivum, 361–362, 369 Presumptively weak parties, 409–433
lex causae, 372, 374–376 American model, 414–432
lex fori, 372–374 civil law model, 410–414
lex limitativa, 372–377 consumer contracts, 422–426
limitations, 369–379 distributorship contracts, 426–432
Mexico City Convention, 377, 386 employment contracts, 415–422
Index 793
franchise contracts, 426–432 public policy exception, 294–295

overview, 409–410, 432–433 punitive damages, 284–289, 295, 299–301, 305
Private international law defined, 2–3 qualifications to list of contacts, 275–277
Privileges and Immunities Clause, 7, renvoi, 299–300
17–18, 30–31 Restatement (First) of Conflict of Laws, 334
Products liability, 273–341 Restatement (Second) of Conflict of Laws,
airplane crashes, 276–277, 327 296, 308, 314, 318–320, 324, 328, 332,
asbestos, 275–276, 287, 311, 322, 329–333 334–335, 338
“better law” approach, 314–315, 331–332 Restatement (Third) of Conflict of Laws
choice of law rules, 338–341 (proposed), 697
contacts, significance of, 337–338 significant-contacts approach, 289–290, 302,
contacts-based rules, 339–341 318–320
content of contact-state laws, 278 single contact, choice of law based on,
DES, 275n6 295–301, 327–328
direct conflicts, 278–301 state policies and interests, role of, 336–337
empirical evidence, 335–336 statutes of limitations, 302, 306, 314, 319,
EU Rome II Regulation, 338–340 329–331
favor laesi, 341 statutes of repose, 296, 299, 304, 309, 311, 314,
FDA, 312, 312n223 319–322, 326–327, 331, 333
Hague Convention on the Law Applicable to strict liability, 305
Products Liability, 339–341 three contacts, choice of law based on, 284–290,
injury and product acquisition as contacts, 308–318
291–292, 325–327 time considerations, 328–335
injury as contact, 295–296 tires, 318
insurance coverage, 510–512 tobacco, 275
interest analysis, 279, 311–318, 331, 336–337 two contacts, choice of law based on, 290–295,
inverse conflicts, 279, 301–328 318–327
latent injuries, 328–335 typical patterns of conflicts, 278
lex fori, 289–290, 308, 315–318, 321, 337 workers’ compensation, interplay with,
lex loci delicti, 274–275, 294–295, 299, 301, 325–326
308, 310, 319–320, 324, 326–328 Proof of foreign law, 87–92
list of contacts, 274–275 Property, 581–624
localization, 67 antiquities, 588–589
motor vehicles, 315–318 artistic property, 589–592
negligence, 304 common law vs. civil law, 600–601
non-economic loss, 307–308 conflit mobile, 592–593
overview, 273–279, 335–336 discovery rule, 597–600
pertinent contacts, 274–278 elginism, 585
pharmaceuticals, 275n6, 311–314 even-handedness, 598–599
plaintiff ’s domicile and injury as contacts, Full Faith and Credit Clause, 583
290–291, 319–322 good faith proviso, 597, 597n74
plaintiff ’s domicile and product acquisition as immovables, 581–583
contacts, 293–295, 322–325 lex originis, 594
plaintiff ’s domicile as contact, 297–301 lex rei sitae originis, 59–60, 59n62, 581–583,
pro-defendant law of defendant-affiliated state, 594–596
280–283 marital property, 602–615. See also Marital
pro-defendant law of plaintiff-affiliated state, property
308–328 “materially closer connection,” 596–597
product acquisition as contact, 296–297 movables, 584–602
pro-plaintiff law of defendant-affiliated state, multiple situses, 592–593
302–308 non-forum substantive law, 599–600
pro-plaintiff law of plaintiff-affiliated state, overview, 581
283–301 proposed rule regarding, 593
794 Index
Property (Contd.) states of injury and defendant’s domicile

Restatement (First) of Conflict of Laws, 59–60, imposing punitive damages, 257–258
581–582, 584 Pure borrowed-law approach, 606
Restatement (Second) of Conflict of Laws, 582, Pure quasi-community property approach,
584–585, 594 606–607
Restatement (Third) of Conflict of Laws
(proposed), 700 Qualification. See Characterization
significant-contacts approach, 589
statutes of limitations, 599 Racketeer Influenced and Corrupt Organizations
stolen movables, 585–602 Act of 1970 (RICO), 85, 86n123
substantive law solutions, 601–602 Recommendations
successions, 615–624. See also Successions national legislation proposals, 677–678
true conflicts, 595–596 Restatement (Third) of Conflict of Laws
U.C.C., 585, 585n26 (proposed), 693–703. See also Restatement
UNIDROIT, 587, 593n62, 594–595 (Third) of Conflict of Laws (proposed)
Public policy exception state legislation, 678–693. See also specific state
application of rules, 78–82 Reese, Willis L.M., 94, 111–115, 701
arbitration clauses, 484–486 Regulation on Successions of 2012 (EU), 620, 622
automobile insurance, 501 Reimann, Mathias, 118, 697–698
contracts, 359n103, 360–361 Remission, 74
foreign arbitration, 484–486 Renvoi
interest analysis, 82 application of rules, 73–78
lex loci delicti, 81–82 interest analysis, 78
party autonomy, 371–379 lex loci contractus, 75–76
products liability, 294–295 lex loci delicti, 76, 78
Restatement (First) of Conflict of Laws, party autonomy, 406
78–79, 81–82 products liability, 299–300
Restatement (Second) of Conflict of Laws, 79 Restatement (First) of Conflict of Laws, 75
Puerto Rico Restatement (Second) of Conflict of
codification of choice of law in, 688 Laws, 75–76
Dealer’s Contracts Act, 428–429 syllogism, 77–78
Draft Code of Private International Law, Reppy, William, 118
683n54, 688 Restatement (First) of Conflict of Laws
statutes of limitations in, 544–546 generally, 93, 95–97, 111, 153, 676
Punitive damages acceptance of, 60–61
commercial liability insurance, 512–518 application of rules, 68–69
conduct-regulation conflicts, 249–269 Beale on, 53–58
contacts imposing, 252 characterization, 65–67
indemnification of, 517n128 choice of law rules under, 64
insurability of, 512–518 contracts, 59, 343–344
lex loci contractus, 513–514 contributions of, 57–58
no contacts imposing, 266–268 domicile, 86
only state of conduct imposing, 259–261 flaws of, 56–57
only state of defendant’s domicile imposing, historical development, 56–61
258–259 lex loci contractus, 59, 61
only state of injury imposing, 261–266 lex loci delicti, 58–59, 61, 178
penal-law exception, 84 localization, 67
products liability, 284–289, 295, 299–301, 305 marital property, 60
purpose of, 249–250 party autonomy, 364–365
states of conduct and injury imposing punitive products liability, 334
damages, 256–257 property, 59–60, 581–582, 584
states of defendant’s domicile and conduct public policy exception, 78–79, 81–82
imposing punitive damages, 252–256 renvoi, 75
Index 795
statutes of limitations, 524, 528, 547–548 Restatement (Third) of Conflict of Laws

successions, 60, 617–619 (proposed), 693–703
torts, 58–59, 270 certainty vs. flexibility in, 700–703
Restatement (Second) of Conflict of Laws choice of law rules, 700–703
generally, 95, 107 contracts, 698–699
ad hoc analysis, 114–115 coverage of, 695
adoption of, 151–154, 151n23, 151n25 filling gaps in Second Restatement, 696–699
adoption of children, 578 foreign law conflicts, 697–698
application of rules, 69–72 forum selection clauses, 699
arbitration clauses, 480 insurance, 696
automobile insurance, 496–497, 499–500 overview, 693–694
characterization, 66–67 products liability, 697
choice of law rules under, 64 property, 700
“combined modern” approaches, 174 situs, 700
conduct-regulation conflicts, 231, 240, 255 torts, 696–697
contracts, 344–345n13, 345–348, 352–358 updating content of Second Restatement,
divorce, 568, 568n92 696–699
domicile, 86 Restatement (Third) of Foreign Relations
environmental pollution insurance, 503–507 generally, 695
forum selection clauses, 437 foreign law conflicts, 626–627, 626n7–626n8, 648
historical development, 111–115 foreign tax-law exception, 85n116
legitimacy and filiation, 577–578 Restatement (Fourth) of Foreign Relations
lex loci contractus, 135–139, 141, 143, 151, 153 (proposed), 695
lex loci delicti, 128, 130–133, 141, 143, Restatement of U.S. Law of International
151, 153 Commercial Arbitration (draft)
life insurance, 518, 520 generally, 696n119
localization, 68 arbitration clauses, 480–483, 481n292, 486,
loss-distribution conflicts, 197–198, 204, 489–490
206–207, 212–213 “Revolutionary status quo,” 673–676
marital property, 611 Reynolds, William, 119
marriage, 554–557 Richman, William, 119
methodological pluralism, 148–150 RICO (Racketeer Influenced and Corrupt
“most significant relationship,” 112–113 Organizations Act of 1970), 85, 86n123
party autonomy, 365–367, 369–371, 374–376, Riles, Anelise, 119
378, 382–385, 387, 389, 392, 400–401, 405, Roberts, John, 560n33, 660
408, 414–415, 418, 425–426, 429, 431–432 Roman law, 3, 46–48
pointers, 114 Rome I Regulation (EU)
presumptive rules, 113 generally, 698
products liability, 296, 308, 314, 318–320, 324, forum selection clauses, 437
328, 332, 334–335, 338 party autonomy, 377, 383–386, 406, 413
products liability insurance, 512, 512n104 Rome II Regulation (EU)
property, 582, 584–585, 594 generally, 84, 699
proposal to replace. See Restatement (Third) of party autonomy, 392–393
Conflict of Laws (proposed) products liability, 338–340
public policy exception, 79 torts, 182–183
punitive damages, insurability of, 514–517, Rome Convention on the Law Applicable to
514n114 Contractual Obligations of 1980 (EU)
renvoi, 75–76 generally, 698
rules, 113 party autonomy, 377, 412–413
Section 6, 111–112 Roosevelt, Kermit, 119
significant-contacts approach, 154–155 Rules of Decision Act of 1948, 38
statutes of limitations, 533, 539–546 “Rules of law,” 5, 406–409, 487–488, 488n336.
successions, 617–619 See also Nonstate norms
796 Index
Same-sex marriage, 558–566 Silberman, Linda, 120

civil unions, 559n25 Simson, Gary, 120
divorce, 564n65 Singer, Joseph, 120, 583
DOMA, 559–566 “Site-specific” approach for environmental
Due Process Clause, 561–562 pollution insurance, 505–509
Equal Protection Clause, 561–562 Soft connecting factors, 682
Fifth Amendment, 560–561 SOLAS (International Convention for the Safety
Fourteenth Amendment, 561 of Life at Sea), 640
Full Faith and Credit Clause, 562–563 Sotomayor, Sonia, 161n76
horizontal DOMA, 561–563 Souter, David, 651
interstate recognition of, 563–566 Split-domicile cases, 204–227
“mini-DOMAs,” 559 conduct, injury, and tortfeasor’s domicile in
overview, 558–559 state whose law favors tortfeasor, 205–208
vertical DOMA, 559–561 conduct, injury, and victim’s domicile in state
Savigny, Friedrich Carl von, 50–51, 51n21, 112 whose law favors victim, 208–210
Scalia, Antonin, 549, 552, 561, 641, 647–648, conduct and tortfeasor’s domicile in state
655–657, 659–660 whose law favors tortfeasor, injury and
Seaman’s Wage Act of 1915 victim’s domicile in state whose law favors
arbitration clauses, 486 victim, 218–221
foreign law conflicts, 633 conduct and tortfeasor’s domicile in state
Securities Exchange Act of 1934 whose law favors victim, injury and
arbitration clauses, 474 victim’s domicile in state whose law favors
foreign law conflicts, 655–658 tortfeasor, 221–222
Sedler, Robert, 119, 201n116 cross-border torts, 218–224
“Seized” forums, 445–456 direct conflicts, 204–210
Selectivist method, 48 Hurtado pattern, 214–215
Separability intrastate torts, 204–218
of arbitration clauses, 472–473 inverse conflicts, 211–218
of forum selection clauses, 460–462 Neumeier pattern, 211–214
Separate property no-interest cases, 211–218
moving from community property state to Oregon codification, 691
separate property state, 608–609 rules, 215–218, 223–224
moving from separate property state to three-state conflicts, 224–227
community property state, 605–608 true conflicts, 204–210
overview, 602–603 State-international conflicts, 6
“Service of suit” clauses, 436n2 State law. See also specific state
Sherman Act of 1890 federalism. See Federalism
arbitration clauses, 466–467 federal law compared, 7–8
conduct-regulation conflicts, 243 recommendations, 678–693
foreign law conflicts, 635–636, 645–649, 670 state defined, 1n1
Shreve, Gene, 120 state legislation proposals, 678–693
Significant-contacts approach. See also Center Statuists, 48–49, 178
of gravity approach; Grouping of contacts Statutes of limitations, 523–552
approach “better law” approach, 537
contracts, 348, 358–359 borrowing statutes, 526–527, 527n24
foreign law conflicts, 669 center of gravity approach, 529–530
insurance, 498, 521 choice of law clauses, interplay with, 547–548
legitimacy and filiation, 577 comparative impairment, 537–539
party autonomy, 370, 403, 428 current status of traditional American system,
products liability, 289–290, 302, 318–320 528–531
property, 589 Currie on, 544
theoretical development, 130–134, 136–139, Due Process Clause, 548
149, 154–155, 168–169 Full Faith and Credit Clause, 548
torts, 205 Heavner case, 535–539
Index 797
interest analysis, 529, 535–539, 535n75 Tag jurisdiction, 21, 29n79

judicial exceptions to traditional American Talaq divorce, 612
system, 528 Taxation
lex causae, 544–545, 552 foreign tax-law exception, 85–86, 85n116
lex fori, 533, 552 marital property, 612–614
new judicial approaches, 535–539 Tenth Amendment, 16, 32n99, 39
overview, 523–524 Territoriality
products liability, 302, 306, 314, 319, 329–331 Beale on, 54–55
property, 599 foreign law conflicts, 635–636, 646–650,
Restatement (First) of Conflict of Laws, 524, 654–668
528, 547–548 torts, 177–178
Restatement (Second) of Conflict of Laws, 533, Terrorism, 246–247, 267–268
539–546 “Three-strikes” laws, 83, 83n105
state practices, 547 Tires, products liability of, 318
substantive vs. procedural nature, 551–552 Title VII, 646
Supreme Court case law, 548–551 Tobacco, products liability of, 275
traditional American system, 524–531 Torts, 177–272
true conflicts, 543 applicable law, 270
UCLLA, 531–534, 544 “car-owner statutes,” 186, 239–240, 246
Statutes of repose, 296, 299, 304, 309, 311, 314, characterization, 66
319–322, 326–327, 331, 333 conduct-regulation conflicts, 229–269. See also
Stevens, John Paul, 25n45, 26–27, 30n82, 477 Conduct-regulation conflicts
Stewart, Potter, 25n45, 32n102 Cooney case, 158–159n58, 158–160
Stock exchanges’ arbitration clauses, 488 cross-border torts, 218–224. See also
Stolen movables, 585–602. See also Property Cross-border torts
Story, Joseph, 2, 46, 52–53, 93, 95, 346, 362, 364, “dram shop acts,” 186, 239, 244–245
524, 635 Edwards case, 161–162
Strict products liability, 305 favor laesi, 272
Substantivist method, 4–5 Gilbert case, 160–161
Successions, 615–624 grouping of contacts approach, 227
choice of testator, 621–624 intrastate torts, 204–218. See also Intrastate torts
EU Regulation on Successions, 620, 622 lex loci delicti, 178–179, 269–270
Hague Convention on the Conflict of Laws loss-distribution conflicts, 190–229. See also
Relating to the Form of Testamentary Loss-distribution conflicts
Dispositions, 619–620n169 Neumeier case, 155–156
Hague Convention on the Law Applicable to in New York, 155–162
Estates, 621–622, 622n192 Oregon codification, 690–693
Hague Convention on the Law Applicable to overview, 269–272
Trusts, 621 party autonomy, applicability of, 391–400
legislative interventions, 619–624 Restatement (First) of Conflict of Laws,
lex domicilii, 616 58–59, 270
lex patriae, 616 Restatement (Third) of Conflict of Laws
lex rei sitae originis, 616 (proposed), 696–697
Restatement (First) of Conflict of Laws, 60, Schultz case, 156–158n55
617–619 significant-contacts approach, 205
Restatement (Second) of Conflict of Laws, territoriality, 177–178
617–619 Torture Victim Protection Act of 1991 (TVPA),
“scission” of estate, 615–617 631–632
testamentary form, 619–620 Trading with the Enemy Act of 1917, 628–629
Uniform Probate Code, 619, 622 Traditional choice of law system, 53–56
Uniform Wills Act, 619 territoriality, 54–55
“unity” of estate, 615–617 vested rights doctrine, 55–56
validation rule, 620–621 Trautman, Donald T., 94, 108–109
Supremacy Clause, 16 Traynor, Roger, 178, 178n7
798 Index
Treatise (Beale), 53 Uniform Premarital Agreement Act, 611

True conflicts. See also Direct conflicts Uniform Probate Code, 619, 622
loss-distribution conflicts, 204–210 Uniform Wills Act of 1910, 619
property, 595–596 Unilateral choice of law rules, 494–495
statutes of limitations, 543 Unilateralism, 50, 98, 703
theoretical development, 100–103, Uninsured motorist coverage, 496, 498,
101n45, 109n93 500–501
TVPA (Torture Victim Protection Act of 1991), United Nations Commission on International
631–632 Trade Law (UNCITRAL)
Twerski, Aaron, 120 arbitration clauses, 472, 472n235, 487–488
overview, 5
UCLLA (Uniform Conflict of Laws-Limitations United Nations Convention on Contracts for
Act), 531–534, 544 the International Sale of Goods (CISG),
UDCPRDA (Uniform Disposition of 349–352
Community Property Rights at Death Act United Nations Convention on the Law of the
of 1971), 608–609 Sea (UNCLOS), 632
UIFSA. See Uniform Interstate Family Support United Nations Convention on the Recognition
Act of 2001 and Enforcement of Foreign Arbitral
UNCITRAL. See United Nations Commission on Awards of 1958 (New York Convention),
International Trade Law 473–474, 478–482, 484–486, 489–490
UNCLOS (United Nations Convention on the United States Criminal Code, 83
Law of the Sea), 632 Universality, 361–364
Underinsured motorist coverage, 496–497, 500–501 USAID (Agency for International
UNESCO, 587, 593n62 Development), 653
UNIDROIT. See International Institute for the
Unification of Private Law Van Dusen rule, 550–551
Uniform Child Custody Jurisdiction and Vertical conflicts, 6
Enforcement Act of 1997 (UCCJEA), Vested rights doctrine, 23, 55–56, 95n11
571–572 von Mehren, Arthur T., 94, 108–109, 109n93,
Uniform Commercial Code (U.C.C.) 694–695n112
generally, 4
contracts, 348–349, 698 Wächtler, Carl Georg von, 50–51
party autonomy, 365–367, 370, 374–375, Wardle, Lynn, 120–121
408, 415 Weinberg, Louise, 121, 181n21, 200–201n115
property, 585, 585n26 Weinstein, Jack B., 188–189
Uniform Conflict of Laws-Limitations Act Weintraub, Russell J., 94, 109–110, 675, 680
(UCLLA), 531–534, 544 Wharton, Francis, 93
“Uniform contract interpretation” approach, Whitten, Ralph, 121
503–505 Whytock, Christopher, 121
Uniform Disposition of Community Property Wisconsin Consumer Act, 425
Rights at Death Act of 1971 (UDCPRDA), Wood, Diane, 91–92
608–609 Workers’ compensation
Uniform Foreign-Country Money Judgments federalism, 22n29, 24
Recognition Act of 2005, 695n115 products liability, interplay with, 325–326
Uniform Foreign Money Judgments Recognition Wrongful death, 77n69, 169n141, 180, 184,
Act of 1962, 695n115 195n78, 198, 213–214, 253, 257, 260,
Uniform Interstate and International Procedure 260n469, 295n118, 297n128, 299, 309n204,
Act of 1962, 88 315n248, 324n310, 332, 334n363, 463–464,
Uniform Interstate Family Support Act of 2001 464n177, 465n188, 528, 533, 536, 546,
(UIFSA), 569–570n98, 569–571n105, 556–557, 557n21, 565, 667
570n100, 570n103
Uniform Judicial Notice of Foreign Law Act of Yackee, Jason W., 445, 456–457
1936, 88

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CHOICE OF LAW

The Oxford Commentaries

The Honorable Morris S. Arnold

• Codifying Choice of Law Around the World: An International Comparative Analysis

The Oxford Commentaries on American Law

© Oxford University Press 2016

Library of Congress Cataloging-in-Publication Data

Printed in the United States of America on acid-free paper

(Based on the Declaration of Principles jointly adopted by a Committee of the

List of Tables xxxi

PART ONE • THE FEDERAL FRAMEWORK

2. Federalism and Choice of Law 15

3. Early Choice-​of-​Law Doctrine and the Traditional System 45

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

5. The Choice-​of-​Law Revolution: Theoretical Groundwork 93

6. The Judicial Revolution in Torts and Contracts 123

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

PART THREE • CHOICE OF LAW IN PRACTICE

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 Foreign Law 625

PART FOUR • CONCLUSIONS

17. The Next Step 673

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

List of Tables xxxi

I. Scope and Coverage 1

PART ONE • THE FEDERAL FRAMEWORK

2. Federalism and Choice of Law 15

3. Early Choice-​of-​Law Doctrine and the Traditional

II. Choice-​of-​Law Doctrine before the Twentieth Century 45

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

5. The Choice-​of-​Law Revolution: Theoretical Groundwork 93

6: The Judicial Revolution in Torts and Contracts 123

3. The Distinction between Loss-​Distribution and

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

PART THREE • CHOICE OF LAW IN PRACTICE

5. Cases Analogous to Common-​Domicile Cases 203

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

9. Products Liability 273

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

10. Contracts 343

I. The Traditional Approach 343

B. Timing of Choice or Change 384

11. Forum Selection Clauses and Arbitration Clauses 435

3. Summary and Critique 456

12. Insurance Conflicts 493

13. Statutes of Limitation 523

II. The Traditional American System 524

14. Status and Domestic Relations 553

1. Interstate Cases 571

15. Property, Marital Property, and Successions 581

b. The Pure Borrowed-​Law Approach 606

16. Conflicts between Federal Law and Foreign Law 625

List of Tables xxxi

2. Federalism and Choice of Law 15

3. Early Choice-of-Law Doctrine and the Traditional System 45

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

5. The Choice-of-Law Revolution: Theoretical Groundwork 93

6. The Judicial Revolution in Torts and Contracts 123

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

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 Foreign Law 625

17. The Next Step 673

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

List of Tables xxxi

I. Scope and Coverage 1

2. Federalism and Choice of Law 15

3. Early Choice-of-Law Doctrine and the Traditional

II. Choice-of-Law Doctrine before the Twentieth Century 45

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

5. The Choice-of-Law Revolution: Theoretical Groundwork 93

6: The Judicial Revolution in Torts and Contracts 123

3. The Distinction between Loss-Distribution and

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

5. Cases Analogous to Common-Domicile Cases 203

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

9. Products Liability 273

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

10. Contracts 343

I. The Traditional Approach 343

B. Timing of Choice or Change 384

11. Forum Selection Clauses and Arbitration Clauses 435

3. Summary and Critique 456

12. Insurance Conflicts 493

13. Statutes of Limitation 523

II. The Traditional American System 524

14. Status and Domestic Relations 553

1. Interstate Cases 571

15. Property, Marital Property, and Successions 581

b. The Pure Borrowed-Law Approach 606

16. Conflicts between Federal Law and Foreign Law 625

F. The Territorial Presumption, Again 646

17. The Next Step 673

II. Option Two: State Legislation 678

C. The Oregon Codification 688

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

Table 17 Split-Domicile Cases—Intrastate Torts—Inverse Conflicts 211

2. U.S. Const. art. I, § 8, cls. 1–12.

103. Id. at 458–59 (Harlan, J., concurring).

Early Choice-of-Law Doctrine

I I . C H O I C E -O F -L AW DOCT R I NE