TY - JOUR
AU1 - Symeonides, Symeon C
AB - Table of Contents Introduction 2 A Thirty-Year Retrospective 3 The Growth of Conflicts Cases 4 What I Have Learned 8 Read All the Cases 8 Some of Our Assumptions Are Dated 9 “Judges Are Not Stupid, Just Busy” 11 Don’t Forget the Forest 12 Choice of Law 13 Methodology 13 Georgia’s Lex Loci Delicti Rule 13 North Carolina’s Lex Loci Rule 17 The Methodological Table 18 Torts 18 The Fukushima Nuclear Accident 18 Products Liability 23 Employment Injuries 28 Other Torts 32 Defamation 32 Fraudulent Transfers 33 Unfair and Deceptive Trade Practices 33 Choice-of-Law Clauses 43 Preliminaries 34 Capacity 35 Formation 37 Usurious Loans and Public Policy 38 Champerty 40 Statutes Prohibiting Outbound Choice-of-Law Clauses 41 Statutes Welcoming Inbound Choice-of-Law Clauses 43 Choice of Law and Forum Selection Clauses 47 Law Applicable to Forum Selection Clauses 47 Separability of Forum Selection Clause 51 Choice of Law and Arbitration Clauses 52 Extraterritoriality of Labor Laws 56 Statutes of Limitations 58 Insurance Conflicts 64 Domestic Relations 67 Marriage and Divorce 67 Mahr 69 Marital Property 70 Other Domestic Relations 70 Miscellaneous Conflicts 71 Constitutional Limitations 71 Transnational Service of Process 73 Federal Law in the International Arena 75 The Constitution 75 Federal Criminal Statutes 78 Copyright and Trademark Acts 79 Other Federal Statutes 80 Foreign Sovereign Immunity 80 Recognition and Enforcement of Judgments 82 Sister-State Judgments 82 Foreign-Country Judgments 84 Introduction This is the Thirty-Fourth Annual Survey of American Choice-of-Law Cases.1 It is written at the request of the Association of American Law Schools (AALS) Section on Conflict of Laws,2 and is intended as a service to fellow teachers and to students of conflicts law, both inside and outside of the United States.3 Its purpose remains the same as it has been from the beginning: to inform, rather than to advocate. This Survey covers cases decided by American state and federal appellate courts during 2020 and posted on Westlaw by the end of the year. Of the 1,373 appellate cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law, particularly choice of law. The total number of conflicts cases decided in 2020 and posted on Westlaw by midnight Pacific Time on December 31, 2020, was 5,947.4Table 1, below, breaks them down into categories. Nearly three quarters of these cases were decided by federal district courts and are not covered by this Survey. Table 1. Conflicts Cases, 2020. U.S. Supreme Court 10 Appellate cases Federal courts of appeal 497 Reviewed State supreme and intermediate courts 866 1,373 Federal district and other federal lower courts 4,574 Not reviewed All cases 5,947 U.S. Supreme Court 10 Appellate cases Federal courts of appeal 497 Reviewed State supreme and intermediate courts 866 1,373 Federal district and other federal lower courts 4,574 Not reviewed All cases 5,947 Open in new tab Table 1. Conflicts Cases, 2020. U.S. Supreme Court 10 Appellate cases Federal courts of appeal 497 Reviewed State supreme and intermediate courts 866 1,373 Federal district and other federal lower courts 4,574 Not reviewed All cases 5,947 U.S. Supreme Court 10 Appellate cases Federal courts of appeal 497 Reviewed State supreme and intermediate courts 866 1,373 Federal district and other federal lower courts 4,574 Not reviewed All cases 5,947 Open in new tab I. A Thirty-Year Retrospective As the list in the first footnote indicates, I have had the honor of writing thirty out of the thirty-four surveys.5 This is my last. I have decided it is time to pass the baton to the next generation. Last year, I informed the leadership of the AALS Conflicts Section that 2020 would be my last year of writing the survey. I am pleased to see that they have chosen the authors who will write next year’s survey.6 As stated in the Introduction, this Survey is intended as a service to fellow teachers and to students of conflicts law. This phrase has been repeated in all previous introductions, along with the phrases that the goal was to “inform rather than to advocate” and to “avoid editorializing as much as possible.” These are self-imposed obligations. I believe it would be inappropriate to use the survey to advance my views about choice of law, or even to underscore the cases that provided support for views that I have expressed elsewhere. I have tried to abide by these obligations and to carry out the task to the best of my ability. I have made every effort to be objective in selecting the cases for discussion and I have attempted to avoid interjecting my own biases or personal views in discussing them. Occasionally, the urge to criticize what appeared to me to be erroneous court decisions was strong. I have tried to resist this urge, and I think I succeeded with regard to most lower court decisions, in most years. For two reasons, I have not made the same effort with regard to the decisions of the United States Supreme Court. The first is that the Court should know better. The second reason is that the Supreme Court decides so few conflicts cases each year;7 and all of them are important. For this reason, most survey readers will read these decisions, and thus will have the opportunity to assess the validity of my criticism. By contrast, most readers will not read the lower court decisions discussed in the survey. Consequently, my presentation of lower court decisions may be the readers’ only exposure to those decisions, thus heightening my responsibility to be as objective as possible. A.The Growth of Conflicts Cases In 1987, the year of the first survey, American courts decided 2,252 conflicts cases.8 Twenty years later, in 2007, that number more than doubled, reaching 5,756. It then climbed to and remained above 6,000 cases in all the subsequent years, except 2020 for which the numbers were not complete at the time of this writing. See Figure 1 and Table 1. Between 1987 and 2019, the number of cases increased by 170%.9 Figure 1. Open in new tabDownload slide The Growth of Conflicts Cases, 1987–2020. Figure 1. Open in new tabDownload slide The Growth of Conflicts Cases, 1987–2020. Before proceeding to the specifics, I should clarify that the term “conflicts cases” includes not only choice-of-law cases, which have been the principal focus of the surveys, but also cases on jurisdiction and recognition of sister state and foreign judgments, which the surveys discussed less frequently. In addition, the term encompasses what one might call cases of “vertical conflicts,” namely cases delineating the scope of federal law vis-à-vis state law.10 Table 2 and Figure 2, below, depict the growth of conflicts cases during this period and the courts that decided them.11 Table 2. The Growth of Conflicts Cases, 1987–2020. Year . Sup. Ct. . Fed. App. . Fed. Dist. . State . Total . 1987 19 459 1,147 627 2,252 1988 19 438 1,290 696 2,443 1989 20 441 1,295 717 2,473 1990 19 411 1,392 756 2,578 1991 15 483 1,433 780 2,711 1992 14 469 1,604 917 3,004 1993 13 523 1,597 894 3,027 1994 19 535 1,587 889 3,030 1995 13 517 1,682 918 3,130 1996 18 561 1,808 968 3,355 1997 11 503 1,732 920 3,166 1998 14 517 1,606 926 3,063 1999 10 494 1,727 966 3,197 2000 7 499 1,710 943 3,159 2001 12 567 1,928 978 3,485 2002 12 544 2,021 1,136 3,713 2003 10 565 2,086 1,102 3,763 2004 15 553 1,997 1,065 3,630 2005 12 549 2,935 1,196 4,692 2006 10 546 3,902 1,158 5,616 2007 6 554 4,114 1,082 5,756 2008 16 578 4,514 1,180 6,288 2009 10 637 5,433 1,125 7,205 2010 13 590 5,268 1,106 6,977 2011 6 557 5,023 981 6,567 2012 11 603 5,239 984 6,837 2013 17 585 5,208 1,122 6,932 2014 12 547 5,146 1,082 6,787 2015 8 557 4,919 1,022 6,506 2016 10 551 4,622 1,005 6,188 2017 11 526 4,666 999 6,202 2018 8 548 4,451 1,004 6,011 2019 12 506 4,609 948 6,075 2020 10 497 4,574 866 5,947 Avg. 13 530 3,067 972 4,581 Year . Sup. Ct. . Fed. App. . Fed. Dist. . State . Total . 1987 19 459 1,147 627 2,252 1988 19 438 1,290 696 2,443 1989 20 441 1,295 717 2,473 1990 19 411 1,392 756 2,578 1991 15 483 1,433 780 2,711 1992 14 469 1,604 917 3,004 1993 13 523 1,597 894 3,027 1994 19 535 1,587 889 3,030 1995 13 517 1,682 918 3,130 1996 18 561 1,808 968 3,355 1997 11 503 1,732 920 3,166 1998 14 517 1,606 926 3,063 1999 10 494 1,727 966 3,197 2000 7 499 1,710 943 3,159 2001 12 567 1,928 978 3,485 2002 12 544 2,021 1,136 3,713 2003 10 565 2,086 1,102 3,763 2004 15 553 1,997 1,065 3,630 2005 12 549 2,935 1,196 4,692 2006 10 546 3,902 1,158 5,616 2007 6 554 4,114 1,082 5,756 2008 16 578 4,514 1,180 6,288 2009 10 637 5,433 1,125 7,205 2010 13 590 5,268 1,106 6,977 2011 6 557 5,023 981 6,567 2012 11 603 5,239 984 6,837 2013 17 585 5,208 1,122 6,932 2014 12 547 5,146 1,082 6,787 2015 8 557 4,919 1,022 6,506 2016 10 551 4,622 1,005 6,188 2017 11 526 4,666 999 6,202 2018 8 548 4,451 1,004 6,011 2019 12 506 4,609 948 6,075 2020 10 497 4,574 866 5,947 Avg. 13 530 3,067 972 4,581 Open in new tab Table 2. The Growth of Conflicts Cases, 1987–2020. Year . Sup. Ct. . Fed. App. . Fed. Dist. . State . Total . 1987 19 459 1,147 627 2,252 1988 19 438 1,290 696 2,443 1989 20 441 1,295 717 2,473 1990 19 411 1,392 756 2,578 1991 15 483 1,433 780 2,711 1992 14 469 1,604 917 3,004 1993 13 523 1,597 894 3,027 1994 19 535 1,587 889 3,030 1995 13 517 1,682 918 3,130 1996 18 561 1,808 968 3,355 1997 11 503 1,732 920 3,166 1998 14 517 1,606 926 3,063 1999 10 494 1,727 966 3,197 2000 7 499 1,710 943 3,159 2001 12 567 1,928 978 3,485 2002 12 544 2,021 1,136 3,713 2003 10 565 2,086 1,102 3,763 2004 15 553 1,997 1,065 3,630 2005 12 549 2,935 1,196 4,692 2006 10 546 3,902 1,158 5,616 2007 6 554 4,114 1,082 5,756 2008 16 578 4,514 1,180 6,288 2009 10 637 5,433 1,125 7,205 2010 13 590 5,268 1,106 6,977 2011 6 557 5,023 981 6,567 2012 11 603 5,239 984 6,837 2013 17 585 5,208 1,122 6,932 2014 12 547 5,146 1,082 6,787 2015 8 557 4,919 1,022 6,506 2016 10 551 4,622 1,005 6,188 2017 11 526 4,666 999 6,202 2018 8 548 4,451 1,004 6,011 2019 12 506 4,609 948 6,075 2020 10 497 4,574 866 5,947 Avg. 13 530 3,067 972 4,581 Year . Sup. Ct. . Fed. App. . Fed. Dist. . State . Total . 1987 19 459 1,147 627 2,252 1988 19 438 1,290 696 2,443 1989 20 441 1,295 717 2,473 1990 19 411 1,392 756 2,578 1991 15 483 1,433 780 2,711 1992 14 469 1,604 917 3,004 1993 13 523 1,597 894 3,027 1994 19 535 1,587 889 3,030 1995 13 517 1,682 918 3,130 1996 18 561 1,808 968 3,355 1997 11 503 1,732 920 3,166 1998 14 517 1,606 926 3,063 1999 10 494 1,727 966 3,197 2000 7 499 1,710 943 3,159 2001 12 567 1,928 978 3,485 2002 12 544 2,021 1,136 3,713 2003 10 565 2,086 1,102 3,763 2004 15 553 1,997 1,065 3,630 2005 12 549 2,935 1,196 4,692 2006 10 546 3,902 1,158 5,616 2007 6 554 4,114 1,082 5,756 2008 16 578 4,514 1,180 6,288 2009 10 637 5,433 1,125 7,205 2010 13 590 5,268 1,106 6,977 2011 6 557 5,023 981 6,567 2012 11 603 5,239 984 6,837 2013 17 585 5,208 1,122 6,932 2014 12 547 5,146 1,082 6,787 2015 8 557 4,919 1,022 6,506 2016 10 551 4,622 1,005 6,188 2017 11 526 4,666 999 6,202 2018 8 548 4,451 1,004 6,011 2019 12 506 4,609 948 6,075 2020 10 497 4,574 866 5,947 Avg. 13 530 3,067 972 4,581 Open in new tab Figure 2. Open in new tabDownload slide The Growth of Conflicts Cases by Court, 1987–2020. Figure 2. Open in new tabDownload slide The Growth of Conflicts Cases by Court, 1987–2020. The column for “state courts” comprises primarily decisions of state supreme and intermediate courts. It also includes a few decisions of state courts of first instance from certain states,12 and a handful of decisions from Puerto Rican courts and tribal courts. The column for “federal district” courts comprises primarily decisions of federal district courts (usually around 95%), but also includes decisions of specialized federal courts, such as bankruptcy courts, tax courts, military courts, the court of international claims, and the court of federal claims. As the above table and figure indicate, the highest increase in the total number of conflicts cases is primarily due to a disproportionate increase in the number of federal district court cases. These cases grew at an average annual rate of nine percent for a total increase of 302% over the thirty-three-year period (1987−2019). By contrast, cases decided by federal courts of appeal grew by only ten percent, while the cases decided by state appellate courts grew by 51% over the same period. To keep things in perspective, it is worth noting that although the number of American conflicts cases is very high, especially in comparison with other countries, it amounts to a minuscule percentage of all cases decided by American courts. For example, in the federal district courts, conflicts cases amounted to 1.3% of all the cases decided in 2017 and 2018.13 In the federal appellate courts, the percentages were even lower, with conflicts cases comprising 0.9% of decisions in 2017 and 1.1% in 2018.14 B.What I Have Learned 1.Read All the Cases The assignment to write the survey carries with it the obligation to read all the cases. Although toilsome, this obligation has its rewards. By reading all, rather than some, of the cases, one acquires a more accurate view of the judicial landscape. In turn, this view sometimes leads to reexamination of certain commonly held assumptions about the predilections of American courts in deciding conflicts cases. One such assumption is that, in their choice-of-law decisions in torts cases, American courts favor plaintiffs as a class,15 or local litigants (plaintiffs or defendants). Another assumption is that courts favor the law of the forum qua forum. Sometimes, even courts take this assumption for granted. For example, in Sutherland v. Kennington Truck Service, Ltd.,16 the Supreme Court of Michigan stated that “each of the modern approaches tend to favor significantly the application of forum law . . . between approximately fifty-five and seventy-seven percent of the time,”17 and that “courts employing the new theories have a very strong preference for forum law that frequently causes them to manipulate the theories so that they end up applying forum law.”18 After noting that “[t]his preference for forum law is hardly surprising,”19 the court turned preference into virtue and used it as justification for the court’s own lex fori approach. 2.Some of Our Assumptions Are Dated My own review of conflicts cases, including two multiyear studies in specific categories of conflicts, reveals a different and more complicated picture. The first was a 2006 study of all products liability conflicts cases decided between 1990 and 2005 in states that had abandoned the lex loci delicti rule.20 My findings cast significant doubts on the accuracy of the above assumptions. Specifically: (1) The cases did not support the assumption that, in their choice-of-law decisions, courts favored plaintiffs as a class. Plaintiffs fared better in state courts (where 58% of the cases applied a pro-plaintiff law), whereas defendants fared slightly better in federal courts (where 51% of the cases applied a pro-defendant law). On the whole, however, the percentage of cases that applied a pro-plaintiff law (52%) barely exceeded the percentage of cases that applied a pro-defendant law (48%). (2) Courts did not unduly favor the domiciliaries of the forum state, whether plaintiffs or defendants. Only 41% of the cases applied a law that favored the local litigant, whereas 35% of the cases applied a law that disfavored the local litigant. (3) 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% to 44%. 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.21 A few years later, I conducted a second study of all cases involving cross-border torts other than products liability and decided after the revolution in states that had abandoned the lex loci rule.22 One of my findings was that, in choosing between the laws of the state of conduct and the state of injury, 86% of the cases applied the law of whichever of the two states favored the plaintiff. Thus, taken at face value, this finding seemed to confirm the aforementioned common assumption about undue plaintiff favoritism. However, closer analysis reveals that the cases that applied a pro-plaintiff law did so not out of kindness to plaintiffs, but rather in order to effectuate the policies of a state in deterring wrongful conduct or providing reparation for injuries caused by such conduct. Although plaintiffs as a class have been the beneficiaries of these choice-of-law decisions, the individual plaintiffs were not the reason for these choices. For example, in cases that applied the pro-plaintiff law of the state of conduct, the courts based their decisions on the need to deter defendants from violating the conduct-regulating rules of that state, even if the resulting injury occurred in another state. The cases that applied the pro-plaintiff law of the state of injury did so after determining that the defendants foresaw (or should have foreseen) the occurrence of the injury in that particular case. Thus, the application of that state’s law was based on that state’s legitimate interest in deterring extraterritorial conduct that predictably caused injury within its territory and in repairing the consequences of injuries when they do occur. In any event, even if (coincidentally or not) courts favored plaintiffs in this category of conflicts cases, the same is not true of other categories of conflicts. In addition to the products liability cases referred to above, in many other categories of conflicts, courts apply the law of a particular state based on that state’s contacts (e.g., conduct and injury, or domicile of both parties), and regardless of whether its law favors the plaintiff or the defendant. For example, courts apply the pro-defendant or pro-plaintiff law of the parties’ common domicile (in loss-distribution conflicts)23 or of the domicile of one party if the conduct and the injury both occurred in that state (in all conflicts).24 One conclusion from the above is that the thankless job of reading all the cases, even when many are characterized by a “stiffening sameness,”25 can help reexamine long-held assumptions and protect from sweeping generalizations. There is a qualitative difference between reading some cases and reading most cases. More often than not, the former carries significant risks of confirmation bias. If one looks hard through the huge quantity of cases, one can find support for almost any choice-of-law theory, rule, or proposition. This is a big country. The only way to be sure of a particular proposition’s accuracy is to read as many relevant cases as possible. 3.“Judges Are Not Stupid, Just Busy” The above-quoted statement comes from Professor Russell J. Weintraub, one of the great conflicts scholars of the last generation.26 The statement runs contrary to the assessment of many academic writers who have been critical of the quality of American choice-of-law decisions. I will not repeat those assessments here,27 but I would say that I don’t share them. Judges are not experts in conflicts law, if only because they encounter conflicts cases rather infrequently. As noted earlier, although the number of conflicts cases is rising every year and has approached six thousand in recent years, it still represents a microscopic percentage of all the cases courts encounter.28 Consequently, judges do not have the opportunity or the time to develop the necessary expertise.29 Consequently, rather than disparaging judges for their knowledge of choice-of-law theory, we should focus on the results of their decisions. Under that criterion, my overall assessment of the courts’ performance is much more favorable than that of most academic writers. But even if I disagreed with these results, I would always keep in mind another one of Weintraub’s apothegms that “[m]ore important than what the commentators are up to as they deforest the land with the mountains of conflicts articles, is the results that the courts are reaching.”30 As a commentator responsible for the demise of many trees, I can humbly attest, after reading thousands of conflicts cases for more than thirty years, that there is a great deal of wisdom to be gleaned from the law reports. As Louise Weinberg presciently reminds us, “[w]e have been so busy teaching the judges that we have not been learning from them.”31 Speaking for myself, I am grateful for what I have learned from reading these cases. Weinberg also wrote that I “act[ed] on the principle that what courts do, and their measure of agreement in what they do, are phenomena to be taken very seriously indeed” and that I “ha[ve] the strong conviction that to glean truth from reality one has to handle a great deal of reality, and to do so with utmost care.”32 I accept this as a compliment. 4.Don’t Forget the Forest In reading the cases, I have tried to identify the emerging decisional patterns. If, as Holmes said, “the law” is “the prophecies of what the courts will do in fact,”33 then the best way to improve the accuracy of those prophecies is to carefully observe, catalog, and analyze what the courts actually do. I thought that such an undertaking would be particularly useful in the choice-of-law field, which, at least in the area of tort conflicts, appeared to be in utter disarray after the revolution, with the resulting abandonment of rules, and the excessive malleability of choice-of-law approaches that replaced the traditional system. In carrying out this task, I discovered a surprising degree of consistency, if not uniformity, by looking beyond the diversity of methodologies generated by the revolution and instead focusing on the actual results the courts reached. A careful and comprehensive study of the cases reveals that, regardless of the approach followed, and despite the occasional use of verbose, platitudinous, or impressionistic language, the courts that have joined the revolution tend to reach fairly uniform results in several categories of tort conflicts.34 It is important to note that the cases from which I extracted these decisional patterns have been decided under a variety of modern choice-of-law methodologies, including the Restatement (Second), interest analysis, Leflar’s choice-influencing considerations, or a combination of these approaches. The fact that, despite using different methodologies, courts reach the same substantive results may suggest that (a) methodology does not affect the outcome,35 although it affects the parties’ argumentation and the court’s analysis; and (b) these results must be inherently sound or, if they are not, they are nevertheless barometers of what courts will do in future cases. In any event, these results can provide a basis upon which to build descriptive and then prescriptive rules for inclusion in legislation or a new Restatement. In drafting the choice-of-law codifications for Louisiana and Oregon, I concluded that most of the descriptive rules survived that scrutiny, but I also provided escape clauses that authorize judicial deviation in appropriate cases. More recently, I was gratified to see that, as Joseph Singer notes, these patterns have “formed the basis for the emerging Third Restatement of Conflict of Laws,”36 which relies heavily on these surveys. The reporters of the new Restatement have graciously acknowledged this reliance by stating that “[i]n determining the practice of courts and the rules that can be derived from that practice, we have relied heavily on the extraordinarily comprehensive work of Symeon Symeonides, with respect to both American cases and foreign and U.S. codifications.”37 The thirty-four-year period covered by the surveys has been critical in reorienting American conflicts law and providing the compass for its future direction. During this period, we witnessed the transition of American conflicts law from revolution and uncertainty to consolidation and maturity. As the surveys document, American courts, tired or jaded by the choice-of-law revolution that lasted for much of the last quarter of the twentieth century, began converging into uniform decisional patterns. The surveys have carefully identified those patterns and extracted from them new descriptive rules. If this were the only contribution of these surveys, it would be worth the effort. I hope, however, that the surveys have done more, if only by informing fellow conflicts scholars and students here and abroad about the annual developments, trials, and tribulations, of American conflicts law. II. Choice of Law A.Methodology 1.Georgia’s Lex Loci Delicti Rule Georgia is “[a]mong the Last of the Mohicans to cling to the lex loci delicti regime,”38 along with eight other U.S. states.39 However, Georgia’s application of the lex loci rule is subject to two broad exceptions, which lead to the lex fori in many cases arising from torts occurring outside Georgia. The first exception, which is unique to Georgia, applies when the cause of action is based on the common law (rather than statutory law) and the tort occurs in another U.S. state that was one of the original thirteen colonies or was carved out of territory contained in such a colony.40 In such a case, Georgia courts resort to the pre-Civil War fiction that the common law is the same everywhere and apply Georgia’s “interpretation” of it rather than that of the state in which the tort occurred. The Georgia Supreme Court resurrected this fiction in Coon v. Medical Center, Inc.,41 which was criticized in the 2017 Survey.42 Since then, two excellent articles written by scholars with deep knowledge of Georgia law have thoroughly discussed this fiction and criticized it in much stronger terms. One article characterized it as “uncommonly silly,”43 “wholly disingenuous,”44 and “lack[ing] logic, constitutionality, or jurisprudential integrity.”45 The other article characterized the fiction as “distinctly and proudly anachronistic,” “indefensible,” “singularly unappealing,” and a covert “tool for engineering a choice of Georgia law.”46 The second exception to the lex loci rule is the public policy exception. Although not unique to Georgia, this exception has become another “tool for engineering a choice of Georgia law.”47 As discussed in the surveys of previous years, Georgia courts frequently use this exception whenever the foreign lex loci delicti differs, however slightly, from Georgia law, at least when the latter law favors a Georgia party.48 For example, in Alexander v. General Motors Corporation,49 the Georgia Supreme Court held that Virginia law, which 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.50 In Carroll Fulmer Logistics Corp. v. Hines,51 the court held summarily (in just one sentence) that the differences between the wrongful death Acts of Georgia and Florida were “sufficient to render the Florida Act in contravention of Georgia public policy.”52 The difference was that the Florida Act did not allow recovery for the decedent’s pre-death mental pain and suffering. Obviously, neither of these decisions met Judge Cardozo’s high threshold for employing the public policy exception, according to which “mere differences of remedy” do not justify applying the exception.53 Although in both cases, Georgia had significant sufficient contacts and interests to justify the application of its law under any one of the modern choice-of-law approaches,54 the Georgia Supreme Court has blocked that avenue by repeatedly and categorically rejecting all those approaches and strongly reaffirming its commitment to the lex loci delicti rule.55 At the same time, the court noted that there was no need to abandon the lex loci rule, because Georgia courts always “have the power to ameliorate the sometimes seeming harshness of the rule when public policy considerations dictate that they do so.”56 As two Georgia authors noted, Georgia courts have frequently utilized this power to engage in “public policy shenanigans.”57 In the 2020 case Auld v. Forbes,58 the Georgia Supreme Court decided that it was time to put an end to these shenanigans by “disapprov[ing] of cases where the public policy exception has been construed more liberally.”59 One of those cases was the aforementioned Carroll Fulmer case in which, as in Auld, the law of the state of the tort was less generous in the measure of damages than the law of Georgia. Based on that difference, the lower court in Auld found that the law of the place of the tort, Belize, violated Georgia’s public policy and refused to apply it.60 The Georgia Supreme Court reversed. After noting that “[a] mere difference in law is not sufficient to justify [the public policy] exception,”61 the court concluded that, “although wrongful death claims recognized under Belize law provide a somewhat different remedy than wrongful death claims brought under Georgia law . . . Belize’s wrongful death law is not so radically dissimilar that it cannot be applied by Georgia courts.”62 The lower court also refused to apply Belize’s one-year statute of limitations and allowed the action to proceed under Georgia’s two-year statute. The Supreme Court reversed that holding as well, reasoning that Belize’s limitation was substantive rather than procedural because it was built into Belize’s wrongful death statute.63 Finally, the Supreme Court held that Georgia’s Wrongful Death Act did not apply extraterritorially, although the Act does not contain such a limitation.64 It is true that some nineteenth-century Georgia cases assumed such a limitation and subsequent cases repeated it. However, the reasoning of those cases was based not on the wording or history of the Georgia Act or of wrongful death statutes in general, but rather on a presumption that all statutes do not apply extraterritorially. Such a presumption was understandable in the nineteenth and early twentieth centuries when the principle of territoriality dominated choice-of-law thinking, but it is far from inevitable today, especially in a state such as Georgia, which, as noted earlier, takes exactly the opposite position regarding the extraterritorial reach of its own “interpretation” of the common law. Moreover, even the old cases on which the court relied have recognized the need to avoid leaving plaintiffs with no remedy in cases falling between the cracks of territorially limited wrongful death statutes. For example, in Selma, Rome & Dalton Railroad Co. v. Lacy,65 which involved a wrongful death in Alabama, the Georgia court noted that “[i]f . . . the law of the State of Alabama gave to the plaintiff a right of action to recover damages there for the injury. . . then the Courts of this State might, in the spirit of comity, have enforced that law here.”66 In any event, the Auld decision represents an orthodox application of the traditional choice-of-law methodology in two other respects: (1) it restores an appropriately high threshold for applying the public policy exception; and (2) it follows an established exception to the traditional procedural characterization of statutes of limitations. However, methodological correctness does not guarantee a functionally sensible substantive result. In a case such as Auld, most courts that have abandoned the lex loci rule would have reached the opposite result by applying the law of Georgia because of its significant contacts and interests. Specifically: (1) Georgia was the common domicile of all parties. The plaintiff was the mother of a 14-year-old boy who drowned while swimming in a Belize river during a school trip that was organized, began, and ended in Georgia. The defendants were parents of other students from the same Georgia school who acted as chaperones during the trip; and (2) The conflict did not involve an issue of conduct regulation, for which Belize would have a legitimate concern, but rather an issue of loss distribution—damages for pre-death pain and suffering, which were available under Georgia law but not under Belize law. In summary, Auld was a common-domicile loss-distribution conflict of the Babcock pattern, in which all states that have abandoned the lex loci rule have overwhelmingly applied the law of the parties’ common domicile.67 Courts sitting in states like Georgia, which continue to follow the lex loci rule, have three options in cases of this pattern. The first is to apply the lex loci rule in an orthodox manner without utilizing any of the traditional escapes. The Georgia Supreme Court used option in this case. The second option is to maintain the lex loci rule but evade its results by using an escape device. The Court of Appeals followed this option in Auld, as did the Georgia Supreme Court in many previous cases. The third option is to join the twenty-first century and the majority of other states by abandoning the lex loci rule in cases of this pattern. Having repeatedly praised the virtues of the lex loci rule,68 the Georgia Supreme Court is unlikely to consider the third option in the near future. 2.North Carolina’s Lex Loci Rule North Carolina is another state that follows the lex loci delicti rule. In SciGrip, Inc. v. Osae,69 the Supreme Court of North Carolina reaffirmed its “steadfast adherence” to that rule and rejected an appeal to adopt the Restatement (Second).70 The court noted that the Restatement would provide “increased flexibility” but “at the cost of introducing significant uncertainties into the [choice-of-law] process.”71 The court also noted that, although the lex loci rule had its own difficulties, “those difficulties pale in comparison with the lack of certainty inherent in the application of a totality of the circumstances test such as the [Restatement’s] most significant relationship test.”72 By contrast, the court concluded, “the lex loci test ‘is an objective and convenient approach which continues to afford certainty, uniformity, and predictability of outcome in choice of law decisions.’”73 In SciGrip, the plaintiff was a North Carolina employer who sued its former employee, a chemist, for misappropriation of trade secrets under North Carolina’s Trade Secrets Protection Act (TSPA).74 The defendant acquired knowledge of the trade secrets while working for the plaintiff in North Carolina. The defendant quit his employment and, while still a North Carolina domiciliary, he began working for a competing out-of-state employer. During short trips to that employer’s labs in England and Ohio, the defendant developed new products that allegedly made use of trade secrets that he learned during his work for the North Carolina employer. The court held that the “last act” necessary to make the defendant liable was not the acquisition of knowledge of the plaintiff’s trade secrets, which occurred in North Carolina, but rather the unauthorized use of those secrets, if any, which occurred in England and Ohio. Based on this finding, the court held that North Carolina’s TSPA was inapplicable and, since the plaintiff based his claim exclusively on that Act, the court affirmed the dismissal of the claim. The court mentioned but did not respond to the plaintiff’s argument that the trial court’s decision “frustrate[d] the purpose of the [Act], which . . . is intended to protect the trade, commerce, and residents of North Carolina.”75 3.The Methodological Table Table 3, below, depicts the judicial following of the various choice-of-law approaches in the fifty states, the District of Columbia, and the Commonwealth of Puerto Rico. Because there have been no changes from last year, this table is identical to the 2019 table and is reproduced here for the reader’s convenience. It should be read with all the caveats expressed in the previous surveys. Table 3. Alphabetical List of States and Choice-of-Law Methodologies Followed. States . Traditional . Signif. contacts . Restate-ment 2d . Interest Analysis . Lex Fori . Better Law . Combined 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. of Columbia 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 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 9 Contr. 11 Torts 3 Contr. 5 Torts 25 Contr. 24 Torts 2 Contr. 0 Torts 2 Contr. 0 Torts 5 Contr. 2 Torts 6 Contr. 10 T = TortsC = Contracts States . Traditional . Signif. contacts . Restate-ment 2d . Interest Analysis . Lex Fori . Better Law . Combined 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. of Columbia 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 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 9 Contr. 11 Torts 3 Contr. 5 Torts 25 Contr. 24 Torts 2 Contr. 0 Torts 2 Contr. 0 Torts 5 Contr. 2 Torts 6 Contr. 10 T = TortsC = Contracts Open in new tab Table 3. Alphabetical List of States and Choice-of-Law Methodologies Followed. States . Traditional . Signif. contacts . Restate-ment 2d . Interest Analysis . Lex Fori . Better Law . Combined 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. of Columbia 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 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 9 Contr. 11 Torts 3 Contr. 5 Torts 25 Contr. 24 Torts 2 Contr. 0 Torts 2 Contr. 0 Torts 5 Contr. 2 Torts 6 Contr. 10 T = TortsC = Contracts States . Traditional . Signif. contacts . Restate-ment 2d . Interest Analysis . Lex Fori . Better Law . Combined 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. of Columbia 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 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 9 Contr. 11 Torts 3 Contr. 5 Torts 25 Contr. 24 Torts 2 Contr. 0 Torts 2 Contr. 0 Torts 5 Contr. 2 Torts 6 Contr. 10 T = TortsC = Contracts Open in new tab B.Torts 1.The Fukushima Nuclear Accident Cooper v. Tokyo Electric Power Co. Holdings, Inc.76 was an action by several hundreds of United States servicemembers, who were deployed at the site of the Fukushima Nuclear Power Plant (FNPP) to assist Japanese authorities in the aftermath of the 2011 earthquake and tsunami. Claiming exposure to radiation from the FNPP, the plaintiffs sued the Tokyo Electric Power Company (TEPCO), the power plant’s owner and operator, and General Electric (GE), the manufacturer of the plant’s boiling water reactors, in California. GE argued that Japanese law governed the plaintiffs’ products liability action against it and that the actions should be dismissed because a Japanese statute “channeled” all liability to TEPCO as the operator of the nuclear plant. The statute provided that the operator of a nuclear plant is strictly liable for any damage caused by the plant’s operation and that “no other person shall be liable to compensate for damages.”77 The plaintiffs countered by arguing that this provision (known as the “channeling provision”) was procedural and thus was inapplicable in California. In a scholarly opinion written by Judge Bybee, the Ninth Circuit rejected the plaintiffs’ argument, finding that “[a] liability-limiting statute with such outcome-determinative implications” was substantive and should be subject to a choice-of-law analysis.78 Following such an analysis, the court concluded that there was a true conflict between Japanese law, which released GE from liability as an incentive for manufacturers to participate in Japan’s nuclear program, and California law, which imposed strict liability on manufacturers in order: (1) to provide a short cut to liability where negligence may be present but difficult to prove; (2) to provide an economic incentive for improved product safety; (3) to induce allocation of resources towards safer products; and (4) to spread the risk of loss among all who use the product.79 Applying California’s comparative impairment approach, the court held that Japanese law governed because Japan’s interest would be more impaired by the nonapplication of that law than California’s interest would be by the nonapplication of California law. The court acknowledged that the nonapplication of California’s pro-plaintiff law would work at the expense of the plaintiffs, many of whom were Californians, but noted that California courts had “frequently applied foreign laws that serve to protect businesses by limiting liability, even when applying that law precludes recovery by injured California residents.”80 In those cases, as well as in this case, the court continued, “California’s interest in compensation for injured residents failed to overcome a foreign jurisdiction’s interest in limiting defendants’ substantive liability for injuries occurring within its borders.”81 In this case, the court reasoned, Japan’s interest was specific and strong: “Japan made a conscious decision to encourage nuclear power in Japan”82 by immunizing third parties, especially foreign companies such as GE as an incentive for participation in Japan’s nuclear program. Japan’s “channeling provision” was “directed specifically at accidents at a nuclear facility,” whereas California’s products liability rules were “general in nature and presumably cover[ed] everything from toasters to airplanes.”83 Finally, the court concluded, the application of Japanese law did not entirely foreclose recovery for the plaintiffs because “Japanese law allows for compensation for the plaintiffs’ injuries—just not from GE.”84 The court then turned to the plaintiffs’ claims against TEPCO and again found a true conflict between Japanese law, which favored TEPCO, and California law, which favored the plaintiffs. Japanese law did not allow punitive damages and required a “high probability” of causation, whereas California law imposed punitive damages and required the plaintiffs to show only that their injuries were “more likely than not” caused by radiation exposure.85 In this case, Japan’s interests were even stronger than in the case against GE because TEPCO was a Japanese corporation operating a nuclear power plant in Japan and was comprehensively regulated by Japanese law. “Subjecting TEPCO to California’s negligence rules,” said the court, “would seriously undermine the comprehensive scheme [of Japanese law] and impair Japan’s interests.”86 By contrast, the court reasoned, California’s interest in compensating the plaintiffs “would be equally served under Japanese law” because the Japanese government allocated more than $76 billion for compensation of all victims.87 To be sure, the plaintiffs would not recover punitive damages but, as the court noted, “punitive damages are not intended to compensate for a plaintiff’s losses,” and TEPCO had stated that “injured parties will be fully compensated for proven injuries.”88 The court held that Japanese law governed the plaintiffs’ claims against TEPCO because Japan’s interests would be more impaired by the nonapplication of Japanese law than California’s interest would be by the nonapplication of California law. The conclusion that Japanese law would govern this action was a “significant change” to the state of affairs that existed when, in an earlier decision,89 the court held that principles of adjudicatory comity did not favor dismissal of the action against TEPCO. This change required reconsideration of that decision, following which the court held that dismissal was appropriate in favor of litigation in Japan. The court noted, inter alia, that a trial in California would require the trial court to “inform itself at every turn of the nuances of Japanese civil law” and “understand[] who bears the burden of proof, principles of causation, and what constitute compensable damages.”90 Moreover, Japan had a strong interest in centralizing all litigation resulting from the nuclear accident in Japanese courts in order to avoid different outcomes for similarly situated victims. Finally, unlike the U.S. government, which expressed moderate support in favor of retaining the case, the Japanese government expressed strong objection to the prospect of U.S. litigation and reiterated its commitment of significant resources to ensure that all victims would be adequately compensated. The court concluded that this foreign policy factor also favored dismissal on grounds of adjudicative comity. Imamura v. General Electric Company91 arose out of the same nuclear accident as the one in Cooper. The difference was that the plaintiffs in Imamura were Japanese citizens who sustained property damage from the meltdown of the Fukushima nuclear reactor. They sued GE in Massachusetts, alleging negligence and strict product liability for manufacturing and design defects in the reactor. After finding that Japan provided an adequate and more appropriate forum, the district court dismissed the action on forum non conveniens grounds. The First Circuit affirmed. One of the public interest factors that favored dismissal was the strong likelihood that Japanese law would govern the action and that a Japanese court applying the “channeling provision” of the Japanese statute discussed in Cooper would dismiss the action against GE. 2.Products Liability Sullivan v. Thieman Tailgates, Inc.92 was a products liability action filed by a California domiciliary who was injured in California by a liftgate manufactured by an Ohio defendant in Ohio. The liftgate was installed on a truck in Kentucky, which after two sales in other states ended up in California. The plaintiff’s action was timely under California’s statute of limitations but was barred by Ohio’s ten-year statute of repose. The California trial court held that the Ohio statute governed, barring the action. The court reasoned that, because the defendant did not sell the liftgate in California, it was not reasonably foreseeable that it would end up in California. The Court of Appeals reversed. The court found that, based on the record, which showed that the defendant had California customers, the trial court should have drawn the opposite inference, i.e., that “it was reasonably foreseeable that the subject liftgate would end up in the possession of a California resident.”93 The court then explained why this was a true conflict by identifying the conflicting interests of the two states. Ohio’s statute of repose was intended to “enhance the competitiveness of Ohio manufacturers by reducing their exposure to disruptive and protracted liability with respect to products long out of their control.”94 By contrast, by not enacting a statute of repose, California expressed an interest in: (1) ensuring the costs of injuries are borne by the manufacturers rather than by the injured persons who are powerless to protect themselves; (2) providing a short cut to liability where negligence may be present but difficult to prove; (3) providing an economic incentive for improved product safety; (4) inducing the reallocation of resources toward safer products; and (5) spreading the risk of loss among all [product users].95 Applying California’s comparative impairment approach, the court held that California law governed, allowing the action to proceed. The foreseeability factor tipped the scales in favor of California law. In the court’s words, “[w]hen it is reasonably foreseeable to the manufacturer that the defective product will enter California through the stream of commerce, the manufacturer may be held liable under California’s product liability law.”96 In Stevenson v. Ford Motor Company,97 the products liability/wrongful death action was barred by a 15-year statute of repose in the forum state of Texas, but was timely under the statutes of limitations of Michigan, which was the state of manufacture, and Virginia, which was the state of the injury. The plaintiff was a Texas domiciliary whose minor daughter was killed in a traffic accident in Virginia while riding as a passenger in a Ford Explorer driven by another Texas domiciliary. Ford had designed the car in Michigan, assembled it in Missouri,98 and placed it in the stream of commerce in Texas by selling to a Texas car dealer. In an opinion that could have been much shorter, especially given the outcome, the Texas court held that the Texas statute of repose applied, barring the action. Long after adopting the Restatement (Second), Texas enacted section 71.031 of the Texas Civil Practice and Remedies Code, which specifies a time limit for filing actions arising from wrongful deaths occurring outside Texas. Subsection (a)(2) of section 71.031 provides that an action by a Texas resident arising from a wrongful death in another state may be filed in Texas, if “the action is begun . . . within the time provided by the laws of [Texas] for beginning the action.”99 Subsection (b) provides that, “[e]xcept as provided by Subsection (a), all matters pertaining to procedure . . . are governed by the law of [Texas].”100 Subsection (c) provides that “[t]he court shall apply the rules of substantive law that are appropriate under the facts of the case.”101 Like any choice-of-law statute, section 71.031 prevails over, and displaces, the Restatement (Second). The Restatement itself reminds readers of this hierarchy when it provides in section 6(1) that “[a] court . . . will follow a statutory directive of its own state on choice of law” and only “[w]hen there is no such directive” should the court consider the Restatement’s provisions.102 Consequently, if the plaintiff’s action in Stevenson fell within the scope of subsection (a)(2) of section 71.031, the action would be barred as untimely under Texas law. To avoid this result, the plaintiff argued: (1) that subsection (a)(2) applied only to statutes of limitations, which are procedural, and not to statutes of repose, which are substantive, and (2) that for substantive matters, the applicable provision is subsection (c), which, in the plaintiff’s view, incorporates the most significant relationship formula of the Restatement (Second). The court acknowledged the difference between statutes of limitations and statutes of repose but concluded that the wording of subsection (a)(2) did not allow the result that the plaintiff advocated. Said the court: “§ 71.031(a)(2) requires all personal-injury and wrongful-death actions brought in Texas to begin within the time provided by Texas law and the Texas products-liability statute of repose is such a law.”103 “Both statutes of limitations and statutes of repose serve to limit the amount of time under which suit may be brought, and a plaintiff bringing suit under § 71.031 must satisfy not only the statute of limitations but also the statute of repose.”104 The court could have ended this discussion at this point, but instead continued by explaining why the same result would follow under the Restatement (Second). The court noted that section 146 (personal injuries) and section 175 (wrongful death) of the Restatement established a presumption in favor of the state of the injury, Virginia, but concluded that the presumption was rebutted because the car was merely “passing through” Virginia and thus the occurrence of the injury there was “fortuitous.”105 The court concluded that (1) the evaluation of contacts listed in section 145 pointed to Texas as the state of the most significant relationship, primarily because the car entered the stream of commerce in Texas and the parties’ relationship was centered there; and (2) a policy analysis under section 6(2) confirmed this conclusion. The court noted that, leaving aside the statute of repose, Texas had an “expansive . . . system of tort liability for defective products [that] serve[d] as an incentive to encourage safer design and to induce corporations to control more carefully their manufacturing processes.”106 “On the other hand,” said the court, “Texas has enacted a products-liability statute of repose for the purpose of providing absolute protection to certain parties from the burden of indefinite potential liability,”107 and Ford Motor Company was one of those parties. In Alley v. MTD Products, Inc.,108 the products liability action was timely under the statute of limitations of Pennsylvania, the forum state, but was barred by the ten-year statute of repose of Ohio, which was the state where the manufacturer was headquartered and had designed, tested, and manufactured the product. The product was a snow thrower, which the plaintiff purchased from a local store in Pennsylvania. He was injured in that state while using the snow thrower. The defendant argued that that Ohio’s codification of its public policy rationales in its statute of repose109 militated in favor of applying Ohio law, while Pennsylvania’s lack of a statute of repose suggested a lack of interest in applying Pennsylvania law. The court rejected the argument, noting that Pennsylvania’s lack of a statute of repose did not mean that Pennsylvania’s interests were weaker than Ohio’s. The court pointed out that Pennsylvania’s legislature had discussed the issue numerous times but did not enact such a statute, which, as one legislative witness stated, not only fails to “level the playing field,” but ensures “that the other side does not even have a chance to suit up for the game.”110 “[A]t least as of now,” the court concluded, the “robust debate in [Pennsylvania] about the value and legitimacy of statutes of repose” has been “resolved purposefully in favor of no statute of repose for product liability claims.”111 Thus, Pennsylvania’s interest in allowing the action to proceed was clear: “[T]he situs of the accident in Pennsylvania was not happenstance: Appellant lives in Pennsylvania, purchased the snow thrower in Pennsylvania from a third-party retailer selected by [manufacturer], only ever used it in Pennsylvania, was injured by it in Pennsylvania, and was treated for that injury in Pennsylvania.”112 The court concluded that, although Ohio also had an interest in protecting its manufacturer, the application of Pennsylvania law was more consistent with the parties’ expectations: [The plaintiff] as a Pennsylvania resident who purchased and used the product in Pennsylvania, had a justifiable expectation that Pennsylvania law would apply should the untoward happen. . . . By contrast, [the defendant] as a manufacturer of a nationally marketed product, could not expect Ohio law to apply everywhere.113 In Kornfeind v. New Werner Holding Co., Inc.,114 Pennsylvania was again the forum state. The products liability action was timely under the statutes of limitations of Pennsylvania as well as Illinois, which was the state of the injury and the plaintiff’s home state. However, Illinois had a statute of repose, which would bar the action, and Pennsylvania had a borrowing statute, which mandated the application of the shorter time limit of the state in which the claim accrued. The question was whether this mandate encompassed statutes of repose, in addition to statutes of limitations. After an extensive discussion, which explained the differences and similarities between statutes of limitations and statutes of repose and analyzed authorities from other states, the court held that the borrowing mandate only encompassed statutes of limitations. The court based its holding primarily in the italicized words in the borrowing statute, which provides as follows: § 5521. Limitations on foreign claims (a) Short title of section.—This section shall be known and may be cited as the “Uniform Statute of Limitations on Foreign Claims Act.” (b) General rule.—The period of limitation applicable to a claim accruing outside this Commonwealth shall be either that provided or prescribed by the law of the place where the claim accrued or by the law of this Commonwealth, whichever first bars the claim.115 The court reasoned that the words “accruing” and “accrued” showed that the legislature did not contemplate statutes of repose because, “[w]hile a statute of repose limits the time within which an action may be brought, it is not related to the accrual of any cause of action.”116 Moreover, the court continued, the phrase “Statute of Limitations” in the short title, coupled with the phrase “‘period of limitation’ in connection with the phrase ‘applicable to a claim accruing outside this Commonwealth,’ suggests that the legislature intended to include only statutes of limitations and not statutes of repose because only statutes of limitations are related to accrual of a claim.”117 In Burns v. Taurus International Manufacturing, Inc.,118 both the forum state of Tennessee and the defendant’s home state of Florida had statutes of repose. However, Tennessee’s statute, which was ten years, barred the action, whereas Florida’s statute, which was twelve years, did not bar the action. After realizing this problem, the plaintiff filed a motion for voluntary dismissal without prejudice, hoping to refile the action in Florida. The defendant opposed the motion and asked for summary judgment on the ground that the Tennessee statute of repose applied, barring the action. The trial court granted the plaintiff’s motion for voluntary dismissal and denied the defendant’s motion for summary judgment. The Sixth Circuit reversed, holding that, under the Restatement (Second), Tennessee’s statute of repose applied, barring the action. Tennessee was the plaintiff’s home state, the state where he purchased the product, a pistol, and the place where the injury occurred when the pistol accidentally discharged, killing the plaintiff’s daughter. Under, the contacts part of the Restatement (Second), including the presumption in favor of the law of the state of injury, the court’s conclusion is unsurprising. But some aspects of the court’s analysis are questionable. For example, the court stated that the conduct that caused the injury was “the inadvertent discharge of the gun [which] occurred in Tennessee.”119 That was true of course, but in a products liability action, the pertinent conduct is the manufacturer’s conduct, e.g., the faulty design or failure to warn. It is not the victim’s conduct in using the product. At another point, the appellate court chastised the trial court for reasoning that applying the Florida statute of repose and allowing the action to proceed would promote the policy of deterring wrongdoers and compensating victims, which are the two general policies of tort law. Of course, this is exactly what the Restatement requires when it states that the contacts of section 145 must be evaluated “under the policies listed in § 6,”120 which include “the basic policies underlying the particular field of law.”121 However, the appellate court thought that the trial court erred by “making a choice-of-law determination” by “focus[ing] on the outcome” of applying or not applying a state’s law rather than on the significance of that state’s contacts.122 Apparently, the appellate court prefers to return to the simpler days of the center of gravity approach. 3.Employment Injuries Buckles v. BH Flowtest, Inc.123 was a wrongful death action filed in Montana by the family of a Montana worker who was killed while working for his Montana employer at an oil-well site in North Dakota. Montana law favored the plaintiff by imposing strict liability on the employer and joint and several liability on the employer’s independent contractors and fellow subcontractors. In an opinion meticulously applying the Restatement (Second), the Supreme Court of Montana held that Montana law governed the action. Besides the fact that all parties were domiciled in Montana and their relationship was centered there, the court accepted the plaintiff’s argument that the critical conduct occurred in Montana. The court noted that the employer “dispatched [the employee] from Montana for inherently dangerous work at an unsafe well site that was supervised, operated, and controlled from Montana” and “failed to provide him with adequate and appropriate air monitoring equipment and training regarding overexposure to hydrocarbon vapors . . . — equipment and training mandated by federal labor laws.”124 This factor, along with Montana’s other contacts helped the plaintiff overcome the Restatement’s presumption in favor of the law of the place of injury. The court quoted from the Restatement comments that “when the injury and the conduct causing the injury occur in different states” and the injured person is domiciled in the state of conduct, “there is a greater likelihood that this state is to be the state of most significant relationship” and “even more likely . . . when the relationship between the parties is centered in that state and the parties are domiciled . . . there.”125 In comparing the interests of the two states, the court found that North Dakota’s was “not nearly as strong or specific as Montana’s expressed public policy of protecting workers from inherently dangerous activities and ensuring injured employees’ rights to full legal redress.”126 The court underscored Montana’s strong interest “in ensuring employers are held to a heightened standard when their workers engage in inherently dangerous activities, by adopting strict liability for inherently dangerous activities,” and “in fairly apportioning liability among those responsible for a person’s injury.”127 A dissenting opinion emphasized North Dakota’s interest in regulating safety at North Dakota oil wells128 and encouraging investment in that state’s oil extraction industry.129 In Ford v. Phillips 66 Company,130 a Texas employee of a Texas trucking company was injured at a Phillips 66 refinery in Louisiana while working for his employer who was a Phillips 66 subcontractor. After receiving worker’s compensation under Texas law, the employee filed a tort suit against Phillips 66 in Louisiana. Phillips 66 argued that it was immune from a tort suit because of a provision to that effect in a Master Service Agreement (MSA) between Phillips 66 and the trucking company. The employee argued that, by its own terms, the MSA applied only to employees who were covered by Louisiana worker’s compensation law and he had received his benefits under Texas law. The court replied that the employee was nevertheless eligible for Louisiana benefits and thus he should also accept the quid pro quo that these benefits entail, namely the surrender of his right to sue the employer in tort. The court also ruled that worker’s compensation immunity is a loss-distribution issue and, under the Louisiana choice-of-law codification, the law of the state of conduct and injury governs if one party is domiciled in that state. In this case, although Texas was the home state of all parties, Phillips 66 also qualified as a Louisiana domiciliary under one of the codification’s special rules, thus displacing the common-domicile rule of the same codification. In Yarber v. M.J. Electric, LLC,131 the employee was injured at an Indiana worksite when he was accidentally hit by a Michigan-registered car, which was owned by his employer and driven by a co-employee. After receiving worker’s compensation under Indiana law, the employee sued the employer in Michigan under a Michigan statute that imposed civil liability on car owners for injuries caused by the negligent operation of their cars. Applying Michigan’s lex fori approach, the court held that the exclusive remedy provisions of the Indiana Worker’s Compensation Act (IWCA) barred the suit. This approach is based on a presumption that Michigan law governs “unless a rational reason to do otherwise exists,”132 and such a reason is deemed to exist when another state has a greater interest in applying its law than Michigan does. The court concluded that such a reason was present in this case because Indiana had a strong interest in applying its law, while Michigan had no countervailing interest. Indiana had an “obvious and substantial interest” in protecting “from open-ended liability” an out-of-state employer operating in Indiana133 by not “allowing employees to circumvent the IWCA’s exclusive-remedy provision.”134 By contrast, Michigan had no connection with the employee, who was domiciled in Mississippi, and, although the employer was a Michigan-based LLC, the court treated it as a non-Michigan entity because it was owned by a Texas-based Delaware corporation. Thus, in the court’s eyes, Michigan’s only connection was the car’s ownership and registration. The court rejected the plaintiff’s argument that this connection triggered a Michigan interest in deterring the car owner: “[The plaintiff] has provided no authority for the proposition that ownership, registration, licensure, and insurance [of a vehicle] in Michigan provides Michigan with an interest that overbears the interest of the state where the accident occurred.”135 Walker v. K&W Cafeterias136 was a worker’s compensation subrogation dispute between a North Carolina employer and the widow of a North Carolina employee who was killed in a South Carolina traffic accident while driving a car owned by the employer but insured in South Carolina. The widow received worker’s compensation benefits under North Carolina law and then sued the driver of the other car in South Carolina. That suit resulted in a settlement, under which the widow received $900,000 in underinsured motorist (UIM) benefits under the employer’s South Carolina car insurance policy. Under North Carolina law, those benefits were subject to a worker’s compensation lien in favor of the employer, but under South Carolina law they were not subject to subrogation. Basing its decision “on contractual terms rather than legal principles related to choice of law,”137 the North Carolina Supreme Court held that South Carolina law governed because the insurance policy covered a South Carolina car and was subject to South Carolina law. The court explained that this holding did not amount to a “double recovery” because neither the worker’s compensation nor the UIM benefits “(nor the two combined) purport[ed] to fully compensate [the widow] or her six grown children for their losses due to [the employee’s] death, let alone to exceed any actual damages they have suffered.”138 In Hill v. Freedman,139 an employee of the University of Kansas Law School was injured in a Missouri accident while riding in a school car driven by her supervisor. After receiving worker’s compensation benefits under Kansas law, the employee filed a tort action against the supervisor in Missouri. Missouri law arguably allowed the action, which was barred by the exclusive remedy provision of Kansas’s Workers’ Compensation Act. The Missouri court held that, because the employee received worker’s compensation benefits under Kansas law, her right to sue her supervisor in tort was also governed by Kansas law, which barred the action. Kansas law imposed an additional barrier to the plaintiff’s action. The Kansas Tort Claims Act (KTCA) provided that a state entity, such as the University of Kansas, or its employees were immune from liability for claims by co-employees that were compensable under Kansas’s worker’s compensation law. The Missouri trial court held that the KTCA applied as a matter of comity. In the meantime, the United States Supreme Court decided Franchise Tax Board of California v. Hyatt (Hyatt III),140 which held that a state must accord sister states the same immunity they enjoy in their courts. Hyatt III did not address the question of whether a state owes the same treatment to the employees of a sister-state agency, such as the defendant in this case. The Hill court noted that this was an open question but did not resolve it because the answer would not have affected this defendant who was already immune under the Kansas worker’s compensation law. 4.Other Torts a.Defamation Frey v. Minter141 was a defamation dispute between two attorneys arising out of litigation in Georgia. The defendant, a Georgia attorney, made defamatory statements about the plaintiff to a Georgia newspaper, which published them in its print version. The newspaper also posted the statements on its website, which was accessible in Florida, the plaintiff’s domicile. Florida was also the location of the plaintiff’s law office, but he practiced law in Georgia as well. Applying Florida’s conflicts law, the court affirmed the dismissal of the plaintiff’s action under Georgia substantive law.142 For tort conflicts, Florida follows the Restatement (Second), which provides in section 150 that multistate defamation cases are governed by the law of the state of the most significant relationship, which “will usually be the state where the person was domiciled at the time, if the matter complained of was published in that state.”143 Although section 150 pointed to Florida, the word “usually,” coupled with the Restatement’s comments, allowed the choice of another state’s law if that state has a “more significant relationship to the occurrence and the parties.”144 The court found that this was such a case and Georgia had a more significant relationship than Florida because the [injurious] conduct occurred in Georgia because the statements were made in Georgia by a Georgia resident, . . . the local newspaper’s principal circulation is in Georgia, . . . the issues and circumstances of this case are centered in Georgia, . . . [and] the parties’ relationship is centered around the litigation that took place in Georgia.145 b.Fraudulent Transfers Foisie v. Worcester Polytechnic Institute146 involves “a scenario in which a husband, embroiled in matrimonial proceedings, allegedly concealed millions of dollars in assets in order to shortchange his wife in the divorce settlement.”147 The allegedly defrauded ex-wife sued the husband’s alma mater, the Worcester Polytechnic Institute (WPI), “which was a beneficiary of the ex-husband’s largesse . . . seek[ing] to recoup assets [worth 39 million dollars] purportedly gifted for less than adequate consideration by the ex-husband, now deceased, to WPI.”148 If only because it is written in exquisite prose by Judge Bruce Selya, perhaps the best wordsmith in the federal judiciary, the opinion is worth reading. The parties disagreed on whether the claim should be governed by the law of the forum state of Massachusetts, which is also WPI’s location, or Connecticut, where the divorce proceedings took place and the spouses were domiciled at the time. Both states have adopted facially identical versions of the Uniform Fraudulent Transfer Act (UFTA), but they have interpreted it in slightly different ways and also differ on the extent to which the UFTA preempts common law claims. The wife argued for the application of Connecticut law, and WPI for the application of Massachusetts law. The trial court held that Massachusetts law governed and granted WPI’s motion to dismiss. The Court of Appeals reversed, holding that the trial court should not have decided the choice-of-law issue at the motion-to-dismiss stage. The appellate court set aside the choice-of-law determination as premature and remanded the case to the trial court with instructions to conduct discovery, which, inter alia, would reveal the location of contacts or illuminate factors that are necessary for a proper choice-of-law decision. Among these were the nature and location of the gifted assets, the place from which the transfers were made, and the donor’s domicile at the time of the gift. c.Unfair and Deceptive Trade Practices Tomasella v. Nestlé USA, Inc.149 involved putative class actions filed by Massachusetts consumers against three American chocolate manufacturers, alleging unfair and deceptive trade practices in violation of the Massachusetts Consumer Protection Act. The alleged violations consisted in the manufacturers’ failure to disclose on their product packaging that their chocolate products likely contained cocoa beans farmed by child and slave labor in the Ivory Coast and Ghana. In an opinion written by Judge Torruella shortly before his death, the First Circuit sympathetically examined the plaintiffs’ claims and provided an extensive analysis of Massachusetts cases interpreting the Massachusetts Act, as well as federal precedents interpreting the Federal Trade Commission Act, which served as a model for the Massachusetts Act.150 The court concluded that the defendants’ practices were not unfair or deceptive as these terms are defined by the relevant precedents. C.Choice-of-Law Clauses 1.Preliminaries A choice-of-law clause is an agreement embodying the parties’ mutual will to subject their contract to a designated law. As with other agreements, this agreement comes into existence only if the parties are capable of contracting, their assent was mutual, and their will was free of vices. Which law should determine whether the agreement meets these requirements? The chosen law or some other law? Applying the chosen law involves a certain circularity or “bootstrapping.” It “evoke[s] the unavoidable imagery of the chicken and the egg test.”151 As one commentator noted, “if the choice of law is contractual, but the parties do not agree that they made a binding contract” (or they 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.”152 Another option is to apply the substantive law of the forum qua forum. Besides practicality, this option can be defended 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. Finally, a third option is to refer these matters to the law that would be applicable under the forum’s choice-of-law rules in the absence of a choice-of-law agreement (hereinafter the lex causae). This option avoids the bootstrapping problem, but also undercuts much of the convenience and efficiency that make choice-of-law clauses attractive to courts and litigants in the first place. The above discussion may sound too academic but, as the following cases illustrate, these questions do arise in practice, albeit infrequently. a.Capacity The bootstrapping problem is most serious with regard to issues of contractual capacity. As Adrian Briggs noted, “the ability of individuals to confer upon themselves a contractual capacity which they would otherwise lack ought not to be a matter of party choice.”153 In the United States,154 the Louisiana and Oregon codifications avoid the bootstrapping problem by exempting the issue of capacity from the scope of party autonomy.155 Bootstrapping is possible under the Restatement (Second), which provides that capacity to contract, which includes capacity to enter into a choice-of-law agreement, is determined by “the law chosen by the parties, if they have made an effective choice.”156 In turn, the effectiveness of the choice depends in part on the public policy exception, which operates in favor of the state of the lex causae and ensures compliance with some but not all the incapacity rules of that state.157 Edminster, Hinshaw, Russ & Associates, Inc. v. Downe Township158 is one of the relatively rare recent cases involving the issue of capacity. The case was decided under Texas law, but, although Texas follows section 187 of the Restatement (Second) for determining the validity of choice-of-law clauses, the court did not apply the chosen law to the issue of capacity. Nor did the court apply the lex fori. Instead, the court applied the law of New Jersey, which would have been applicable in the absence of an effective choice-of-law clause, i.e., the lex causae. In the aftermath of Hurricane Sandy, the mayor of a New Jersey town entered into a contract for professional services with a Texas engineering firm, which contained a Texas choice-of-law clause and provided that the mayor had authority to bind the town. However, the mayor did not have such an authority because New Jersey law required contracts exceeding $17,500 to be approved by the town’s governing body and that body never approved or ratified his contract, which far exceeded this amount. The firm sued the town in Texas, demanding a $400,000 payment for its services and arguing that, pursuant to the choice-of-law clause, Texas law governed the contract. The town responded by contending that New Jersey law governed the contract and, under that law, there was no contract. The court rejected the firm’s argument, reasoning as follows: The disconnect of using Texas law to determine a New Jersey township’s capacity to contract exposes the more fundamental problem with [the firm’s] argument: the choice-of-law provision has force only if the parties validly formed a contract. . . . [W]e cannot rely on the choice of law provision until we have decided, as a matter of law, that such a provision was a valid contractual term . . . . If the parties did not enter into a contract, then there is no choice-of-law clause to apply. . . . A party has the power to contract or it does not. Without capacity, there is no contract. And without a contract, a choice-of-law provision has no effect. So just as infants or incompetent adults would not be bound by a choice-of-law provision in a contract they could not agree to, [the town] is not bound by the Texas choice-of-law provision in a document it never approved.159 The court also rejected the firm’s reliance on the contract statement that the mayor had authority to bind the town. The mayor “cannot vest himself with contractual capacity by stating in the contract that he has such capacity,” said the court.160 The court remanded the case to the trial court for determining whether the firm was entitled to unjust enrichment benefits under New Jersey law. b.Formation The bootstrapping phenomenon can also occur if one applies the “chosen” law for determining whether the parties have actually expressed their consent to the choice-of-law agreement (or the contract containing it), for example, whether there was a “meeting of the minds,” or whether that consent was free of defects, such as duress or error. The Restatement (Second) avoids the bootstrapping problem by assigning the validity of the choice-of-law agreement to the substantive law of the forum.161 It provides that 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.162 Caldwell v. UniFirst Corporation163 involved an issue of contract formation. A contract for at-will employment in Missouri contained a Massachusetts choice-of-law clause, an arbitration clause, and a delegation clause authorizing the arbitrator to decide all threshold formation issues regarding the arbitration clause, as well as its enforceability. The arbitrator applied Missouri law and ruled that the arbitration clause was invalid for lack of consideration and mutuality. The employer sued in Missouri to vacate the arbitration ruling, arguing that the arbitrator did not apply Massachusetts law as provided in the choice-of-law clause and that the arbitration clause was valid under Massachusetts law. The court disagreed. The court reasoned that consideration was an issue of contract formation and, as such, it is governed by the lex fori rather than by the chosen law: In Missouri, issues regarding contract formation must be resolved under the law of this state. . . . And, consideration is one of the basic elements of contract formation. . . . So, since the issue here—whether the arbitration agreement was supported by adequate consideration—is one of contract formation, the arbitrator’s decision to apply Missouri law to the issue and not Massachusetts law is correct and is not in excess of his power.164 In 3D/International, Incorporated v. Romano,165 the trial court applied the chosen law of Texas and concluded that the container employment contract was invalid for lack of consideration. However, Texas was also the forum state. Moreover, following an appeal, the Fifth Circuit found that, under section 187 of the Restatement (Second), which is followed in Texas, the Texas choice-of-law clause was valid because the relevant contacts were evenly divided between Texas and Mexico, and Mexico did not have a materially greater interest than Texas in applying its law. Unlike the trial court, the Fifth Circuit held that, under Texas law, the contract was not invalid for lack of consideration. 2.Usurious Loans and Public Policy In United States v. Moseley,166 the defendant challenged his conviction on choice-of-law grounds. The defendant was an online payday lender operating out of Missouri who lent small sums of money to consumers in several states, including the forum state of New York, and charged his customers astronomical interest rates. To avoid the anti-usury laws of those states, the defendant set up corporate entities in three jurisdictions that do not have anti-usury laws—the Caribbean islands of Saint Kitts and Nevis, New Zealand, and Nevada—and included choice-of-law clauses providing that the laws of those jurisdictions governed the loan agreements. After swindling thousands of consumers over a ten-year period, the defendant was convicted of violating several federal statutes,167 sentenced to ten years in prison, and ordered to forfeit forty-nine million dollars. In challenging his conviction, the defendant argued, inter alia, that his loans were not usurious under the laws of the jurisdictions designated in the choice-of-law clauses. In responding to the challenge, the court noted the likelihood that the clauses were invalid because the chosen jurisdictions did not have the requisite substantial connection.168 However, the court found it unnecessary to base its decision on this ground because the clauses were obviously invalid on a different ground—violation of fundamental policy. Because this case involved New York borrowers, the court discussed at length New York’s strong and longstanding public policy against usury, as evidenced by the fact that usury was a criminal offense.169 Said the court: The purpose of usury laws, from time immemorial, has been to protect desperately poor people from the consequences of their own desperation. Law-making authorities in almost all civilizations have recognized that the crush of financial burdens causes people to agree to almost any conditions of the lender and to consent to even the most improvident loans. Lenders, with the money, have all the leverage; borrowers, in dire need of money, have none. . . . [New York law] protect[s] impoverished debtors from improvident transactions drawn by lenders and brought on by dire personal financial stress.170 The defendant argued that the relevant public policy was that of Missouri because, in the absence of the choice-of-law clauses, Missouri law would govern the loans. Missouri’s anti-usury law was more lenient than New York’s, allowing interest rates of up to seventy-five percent, compared to New York’s twenty-five percent. The court rejected the argument, first, because the loans, which in some cases accrued 780% interest, were usurious even under Missouri law, and, second, because New York law would govern the loans. The court found that, compared to New York’s contacts,171 Missouri’s contacts were “thin and were not evident to the borrowers” because all communications were conducted online and the borrowers “had no way of knowing that [the defendant’s] business was based in Missouri.”172 Gibbs v. Haynes Investments, LLC173 and Gibbs v. Sequoia Capital Operations, LLC174 also involved online payday loans that charged exorbitant interest rates of more than three hundred percent, compared to the maximum of twelve percent allowed by the borrowers’ home state of Virginia. The lenders were entities owned and operated by two Indian tribes in Montana and Oklahoma. The loan agreements contained arbitration clauses and clauses providing that both the arbitration and loan agreements were governed by tribal law, and that the arbitrator could only provide remedies allowed by tribal law. Finding that the choice-of-law clauses purported to preempt contrary federal and state law, the court held that the clauses operated in tandem with the arbitration clauses to prospectively deprive the borrowers of their right to pursue their statutory remedies. Consequently, the clauses violated the prospective waiver doctrine established by the Supreme Court in Mitsubishi Motors175 and were unenforceable as contrary to public policy.176 3.Champerty In Maslowski v. Prospect Funding Partners LLC,177 a litigation funding agreement between a Minnesota borrower and a New York lender contained a New York choice-of-law clause. In a decision discussed in last year’s survey,178 the Minnesota Court of Appeals refused to apply New York law, under which the agreement was enforceable, because it would violate Minnesota’s common law prohibition of champerty and maintenance.179 The court concluded that four of Minnesota’s five “choice influencing considerations,” favored the application of Minnesota law and the remaining factor was not implicated. The court noted, inter alia, that Minnesota had a strong interest in “protecting Minnesota’s judicial system and litigants from the deleterious effects of champerty and maintenance,”180 and that Minnesota’s prohibition of these practices represented “the better rule of law”181 because “champertous agreements have untoward economic effects on the legal system that can provide both improper incentives and disincentives to pursue and settle litigation.”182 The Minnesota Supreme Court reversed by “abolish[ing] Minnesota’s common-law prohibition against champerty,” reasoning that champerty was no longer against public policy “as we understand it today.”183 After discussing the historical origins and subsequent evolution of the rule against champerty, the court continued: Champerty is a common law doctrine, and the development of the common law is determined by the social needs of the community which it governs. . . . [A]s society changes, the common law must also evolve . . . . Our review of changes in the legal profession and in society convinces us that the ancient prohibition against champerty is no longer necessary.184 The court discussed several such changes, including the fact that today the rules of professional responsibility and civil procedure address the abuses of the legal process that necessitated the common law prohibition of champerty, and that contingency fee agreements, which used to be prohibited, are now allowed because they can facilitate access to justice.185 The court also stressed that Minnesota courts “may still scrutinize litigation financing agreements to determine whether equity allows their enforcement,” especially “uncounseled agreements, particularly between parties of unequal bargaining power or agreements involving an unsophisticated party.”186 4.Statutes Prohibiting Outbound Choice-of-Law Clauses Although section 187, the Restatement (Second) rule for party autonomy, applies to all contracts without differentiation, several state statutes exclude from the scope of party autonomy certain contracts that have specified connections with the enacting state and prohibit clauses choosing the law of another state (“outbound” clauses).187 Usually, these exemptions, known as “localizing” rules, are found in substantive statutes regulating consumer, employment, and insurance contracts, but also construction contracts, carriage contracts, and franchise or distributorship contracts. Obviously, these localizing rules qualify as “statutory [choice-of-law] directive[s]” in the sense of section 6(1) of the Restatement (Second).188 They also embody a “fundamental” public policy against enforcing outbound choice-of-law clauses in these contracts in the sense of section 187(2)(b). If a contract falls within the scope of such a statute but contains a choice of another state’s law, then: (1) A court in the enacting state should apply the statute under § 6(1) and disregard the clause; and (2) A court in the other state, or a third state, should disregard the clause if, under § 188, the law of the enacting state would have been applicable in the absence of the clause and that state has a materially greater interest than the chosen state in applying its law.189 Engineered Sales, Co. v. Endress + Hauser, Inc.190 is a good example from the 2020 cases of how these localizing rules operate. In 1990, the forum state of Minnesota enacted the Minnesota Termination of Sales Representatives Act (MTSRA) in order to protect sales representatives operating in Minnesota from unjustified premature termination of their agreements.191 However, the Act proved ineffective because it did not expressly prohibit outbound choice-of-law clauses. In 2014, the Minnesota legislature, reacting to cases that upheld such clauses, amended the MTSRA by adding an express anti-waiver provision that prohibited outbound choice-of-law clauses.192 In Engineered Sales, Co., the contract between an Indiana manufacturer and a Minnesota sales representative contained an Indiana choice-of-law clause. When the representative sued the manufacturer for terminating the agreement without good cause, the manufacturer invoked the Indiana choice-of-law clause. The court rejected the manufacturer’s defense, finding that the clause violated the anti-waiver provisions of the MTSRA and thus was void and unenforceable.193 Belt Power, LLC v. Reed194 involved a similar statute, Georgia’s Restrictive Covenants Act, which declares void various restrictive covenants in contracts of employment, distributorship, franchise, and other contracts. Although the Act does not contain an express anti-waiver provision, the court had no difficulty concluding that the Act embodies Georgia’s strong public policy, which prevents the enforcement of outbound choice-of-law clauses.195 By contrast, in NuVasive, Inc. v. Day,196 the court found that the Massachusetts Noncompetition Agreement Act (MNCA) did not embody a fundamental public policy that would prevent enforcement of a Delaware choice-of-law clause and a noncompete covenant in an employment contract between a Massachusetts domiciliary and an employer incorporated in Delaware.197 5.Statutes Welcoming Inbound Choice-of-Law Clauses At the opposite end of the spectrum, some states have enacted statutes that welcome inbound choice-of-law clauses in certain high-value contracts, even in the absence of any other connections with those states and without regard to whether such clauses would violate the public policy of other states. Chronologically, the first statute to this effect was section 5-1401 of New York’s General Obligations Law. It provides that New York choice-of-law clauses in contracts “covering in the aggregate not less than two hundred fifty thousand dollars” are enforceable in New York, “whether or not” the contract “bears a reasonable relation to [New York],” and regardless of whether the enforcement of the clause would conflict with the public policy of another state.198 The statute exempts from its scope employment and consumer contracts, and certain contracts for which the Uniform Commercial Code (U.C.C.). does not allow choice-of-law clauses.199 A companion statute provides for the enforcement of inbound forum selection clauses in contracts covering not less than a million dollars.200 In an effort to compete with New York, other states have enacted similar statutes ensuring the enforcement of inbound choice-of-law and forum-selection clauses. California, Delaware, Florida, Illinois, and Texas are among those states.201 In Havtech Parts Division, LLC v. Advanced Thermal Solutions, LLC,202 a New York court applying the above-quoted New York statute upheld a New York choice-of-law clause in a contract between a Wisconsin party and a Maryland party. The Maryland party argued that the clause should not be enforced because New York had no relationship with the contract or the parties, and the clause violated Maryland’s public policy. The court rejected the argument, noting that the New York statute did not require such a relationship and that a violation of another state’s public policy was not a sufficient ground to override the parties’ choice. In subsequent litigation in Maryland, the court held that the New York decision was res judicata and was binding on Maryland courts. Delaware’s statute, section 2708, provides that contracting parties may agree that their contract will be governed by the law of Delaware and that such an agreement “shall conclusively be presumed to be a significant, material and reasonable relationship with [Delaware] and shall be enforced whether or not there are other relationships with [Delaware].”203 In Cabela’s LLC v. Highby,204 an employment contract between Nebraska parties contained a Delaware choice-of-law clause and a noncompete clause that was enforceable under Delaware law but not under Nebraska law. Without mentioning section 2708, the federal district court in Delaware held both clauses unenforceable under Nebraska law. The court based its decision on section 187 of the Restatement (Second), finding that the application of Delaware law would violate a fundamental policy of Nebraska, which had a materially greater interest in applying its law. The employer appealed, arguing that the choice-of-law clause was enforceable because it is authorized by section 2708, which displaces the Restatement. The Third Circuit Court of Appeals rejected the argument, reasoning that: [Section] 2708 only requires a court to presume that the contracting parties and/or relevant transactions have a significant and material relationship with Delaware. It does not, and indeed could not, require a court to presume no other forum has a significant and more material interest in its law being applied. Accordingly, the district court appropriately considered whether Nebraska had a materially greater interest in applying its law. . . .205 The appellate court noted that the district court “correctly identified a conflict between Delaware’s fundamental policy in upholding the freedom of contract and Nebraska’s fundamental policy of not enforcing contracts that prohibit ordinary competition,”206 and that, given Nebraska’s contacts, Nebraska clearly had a materially greater interest in applying its law. From the perspective of interstate relations and comity, the decision is commendable, but whether it is also correct as a matter of Delaware statutory law is debatable. Section 2708 provides that Delaware choice-of-law clauses that come within its substantive scope “shall be enforced.” For better or worse, section 2708 is a “statutory directive” in the sense of Restatement (Second) section 6(1), and thus it displaces section 187 of the Restatement. In any event, the Third Circuit rejected the employer’s request to certify this question to the Delaware Supreme Court. The same can be said about Economical Steel Building Technologies, LLC v. E. West Construction, Inc.,207 a decision of the Delaware Superior Court in a case involving a contract for the supply of building materials for several California houses. The supplier was a Delaware limited liability company that had its principal place of business in California. The building contractor was a California corporation based in California. The contract contained Delaware forum selection and choice-of-law clauses. Without mentioning section 2708, the court held both clauses unenforceable under California law. It is possible that section 2708 was inapplicable because it does not apply to contracts “[i]nvolving less than $100,000,”208 and the court did not mention the contract’s value. But if the contract’s value exceeded this amount, then the court’s failure to mention section 2708 must have another explanation, which escapes this author. In any event, the court concluded that the application of California law was not only justified by choice-of-law considerations but was also dictated by constitutional principles of due process and full faith and credit. The court opined that the forum selection and choice-of-law clauses “make little sense” but acknowledged that a “strong strain” of Delaware law “allows independent, sophisticated parties” like the parties to this agreement “to have the freedom to agree to a legitimate ordering of their affairs.”209 However, said the court, this freedom is circumscribed by “an outer limit set by concepts of due process and principles of choice of law.”210 The court continued: [T]he facts of this case exceed these due process limitations. All factors but one in this case point to California law and forum as the correct vehicles to litigate the dispute. Most importantly, the construction at issue took place in California. The only Delaware contact is that Plaintiff is a Delaware limited liability company (“LLC”). . . . The litigation involves performance in California of contractual duties. We should not be so benevolent as to protect a Delaware LLC from its performance or failures which occur completely outside our jurisdiction. Doing so, even with the apparent consent of the parties, would violate principles of due process. . . . . California has determined that the choice of law and forum selection provisions at issue violate its law. . . . [I]f federalism and giving full faith and credit to our sister State’s law is to mean anything, [this court] cannot sanction the circumvention of the sister State’s law attempted here. Where the parties do business in California, sign the Agreements in California, and perform the Agreements in California, neither choice of law nor forum selection principles permit litigation of a dispute arising therefrom in Delaware. . . . [E]ven in the face of the parties’ agreement, this would violate jurisdictional principles grounded in due process.211 The court correctly noted that California law prohibited outbound forum selection and choice-of-law clauses in California construction contracts.212 As a matter of interstate relations, this deference to sister-state law is commendable. However, even in the face of California’s prohibition, it is not at all clear that the application of Delaware law would be unconstitutional under the Supreme Court’s decisions in Allstate Insurance Co. v.Hague213 and Phillips Petroleum Co. v. Shutts.214 According to the Allstate test, “for 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.”215 In this case, Delaware had “a” contact—the plaintiff’s incorporation. The case law considers this contact to be “substantial” for meeting the geographical threshold that section 187 of the Restatement (Second) requires for enforcing choice-of-law clauses. With nothing else, this contact is probably not “significant” enough for purposes of the Allstate test. However, when, as in this case, sophisticated parties agree to submit their contract to the law of the contact state, it is not at all clear that the application of the chosen law would violate the Allstate test. If the principal purpose of the Allstate test is to prevent unfair surprise—as can be surmised from the Supreme Court’s emphasis on the due process clause and the disarmament of the full faith and credit clause—then it can be argued that there is no unfair surprise in honoring an otherwise valid choice-of-law agreement between sophisticated parties. D.Choice of Law and Forum Selection Clauses 1.Law Applicable to Forum Selection Clauses Every year, American courts decide hundreds of cases routinely enforcing forum selection clauses, even when the chosen forum is in a remote country, such as Australia,216 Dubai,217 Lebanon,218 Qatar,219 or Saudi Arabia.220 This subsection discusses only cases in which the contract contained both a choice-of-law clause and a forum selection clause. One of the questions in these cases is whether the chosen law also governs the forum selection clause. The answer varies depending on (1) whether the disputed issue is the enforceability or the interpretation of the forum selection clause, and (2) whether the trial takes place in the court chosen in the forum selection clause or in another court. As a result, the case law is divided in multiple ways, which are discussed in other publications by this author.221 The following is a sampling from the 2020 cases. Barshaw v. Allegheny Performance Plastics, LLC222 is representative of state cases that apply the lex fori, rather than the chosen law, for determining both the enforceability and the interpretation of a forum selection clause.223 An employment contract between a Pennsylvania employer and a Michigan employee contained Pennsylvania choice-of-law and forum selection clauses. When the employee sued the employer in Michigan, the employer invoked the Pennsylvania forum selection clause. The trial court found that, under Michigan law, the clause was permissive rather than mandatory but dismissed the action, reasoning that this issue should be decided by a Pennsylvania court. The Michigan Court of Appeals reversed. The court noted the split in the case law between cases that apply the law of the state designated in the choice-of-law clause and cases that apply the law of the forum qua forum. The rationale for the cases of the second group, said the court, is that “because choice-of-law provisions only require application of the chosen state’s substantive law, the state where the action was filed remains free to apply its own law on matters of procedure, including the question of whether the forum-selection clause is valid in the first place.”224 Persuaded by this rationale, the court decided to join the second group. The court noted that a decision to dismiss an action because of an outbound forum selection clause is analogous to a decision to dismiss the action under the forum non conveniens doctrine, “in both effect and underlying purposes.225 Both are “threshold, nonmerits” issues, and [b]oth involve situations where the court in which the action was filed decides to refrain from exercising jurisdiction to adjudicate the merits of the action, instead allowing the merits of the action to be resolved in a different forum, even though the court in which the action was originally filed has not been divested of its jurisdiction.226 The court concluded that, because Michigan applies Michigan law in making a forum non conveniens determination, the same law should apply “in determining the effect of the forum-selection clause.”227 The court also noted that a Michigan statute that prescribes the requirements for enforcing outbound clauses defines these requirements autonomously without referring to a law of a state other than Michigan. The court then turned to this statute to determine whether the forum selection clause was permissive or mandatory. The statute provides that when a clause states that the action shall be brought “only” in another state, but the action is brought in Michigan, a Michigan court shall dismiss or stay the action, depending on whether the clause meets the requirements specified in the statute.228 Because of the word “only,” the court reasoned, Michigan courts will consider dismissing an action because of an outbound forum selection clause only if the parties agreed to litigate exclusively in another state. In this case, the clause did not indicate an intent to confer exclusive jurisdiction to Pennsylvania courts.229 Consequently, the trial court should not have dismissed the action. In federal diversity cases, the question of which law governs forum selection clauses is more complicated because of the further question of whether to apply state law or federal law. For example, in PCL Civil Constructors, Inc. v. Arch Insurance Company,230 the Fifth Circuit stated that, “[w]hen interpreting the words in a forum selection clause, a federal court sitting in diversity applies the forum state’s choice-of-law rules to determine which substantive law will apply”231 and that “[f]ederal law applies to determine the enforceability of forum selection clauses.”232 In Lewis v. Liberty Mutual Insurance Co.,233 the Ninth Circuit applied federal and state forum law interchangeably to both the interpretation and the enforceability of the clause and did not at all refer to the law of Australia, the country designated in the choice-of-law clause. In Lewis, the plaintiffs were consumers who recovered a multimillion-dollar judgment against an American manufacturer who declared bankruptcy. Standing in the manufacturer’s shoes, the plaintiffs sued the manufacturer’s insurer in California federal court. The court held that an Australian forum selection clause in the manufacturer’s insurance policy was exclusive and was assertible against the plaintiffs, and that its enforcement did not violate California’s public policy. The court affirmed the dismissal of the action on forum non conveniens grounds. Several 2020 cases applied the law of the state designated in the choice-of-law clause to interpret a forum selection clause.234 Among them, the most interesting case, especially for European readers, is Germaninvestments AG v. Allomet Corporation,235 even though, for reasons explained below, the court ultimately applied the law of the forum state, Delaware. A restructuring and loan agreement accompanying a joint venture agreement between various legal entities incorporated in Switzerland and Delaware and natural persons domiciled in Switzerland and Germany provided: “The agreement is subject to Austrian law. The place of jurisdiction is Vienna.”236 One of the questions was whether the second sentence was a mandatory or permissive forum selection clause. Under American law, in this case the law of Delaware, this clause would clearly be permissive. However, in some other countries, a forum selection clause is presumed to be mandatory unless the parties agree otherwise. This is the case, for example, under the European Union’s Brussels I Regulation,237 the parallel Lugano Convention,238 and the Hague Choice of Court Convention,239 which the United States has signed but has not ratified. In this case, the Delaware Chancery Court held that the forum selection clause was mandatory and dismissed the action. The court reasoned that Austrian law governed the interpretation of the clause and, because Austria is an EU member state, the court assumed that Article 25 of the Brussels I Regulation was applicable. That article provides that a forum selection clause “shall be exclusive unless the parties have agreed otherwise.”240 The Delaware Supreme Court reversed, in a well-written thirty-page opinion. The court reiterated Delaware’s answer to the question of applicable law by stating that “[w]hen a contract contains a forum selection clause, this court will interpret the forum selection clause in accordance with the law chosen to govern the contract” as long as the chosen state has “some material relationship to the transaction” and subject to a public policy limitation.241 However, under established practice, when a defendant relies on foreign law to argue that a Delaware court should dismiss the action, the defendant must carry the burden of showing that dismissal is warranted under that law. In this case, despite the Chancery Court’s contrary findings, the defendants failed to carry the burden of showing that the clause was mandatory under Austrian law. Consequently, Delaware law became applicable by default and under that law, a clause is permissive unless it states “in crystalline terms” that it is exclusive.242 The court analyzed extensively the relevant provisions of EU and Austrian law, relying primarily on the plaintiffs’ expert testimony, which was far more comprehensive and persuasive than the defendants’.243 The plaintiffs argued that the Brussels I Regulation did not apply because the defendants were not domiciled in the EU, and that in such a case, an Austrian court would have applied Austrian law, under which the clause would be permissive. 2.Separability of Forum Selection Clause Of the remaining 2020 cases involving forum selection clauses, one case that stands out is Karon v. Elliott Aviation,244 in which the Iowa Supreme Court adopted the doctrine of separability of forum selection clauses. More than fifty years ago, in Prima Paint Corp. v. Flood & Conklin Manufacturing Co.,245 the United States Supreme Court adopted this doctrine in the context of arbitration, basing it on the strong pro-arbitration policy of the Federal Arbitration Act (FAA). The doctrine stands for the proposition that a general allegation that the contract that contains an arbitration clause is invalid cannot defeat arbitration unless the challenger proves that the clause itself is invalid. In Scherk v. Alberto–Culver Co.,246 the Court decided to transpose this doctrine to forum selection clauses, even though neither the FAA nor any other federal statute required the transposition. The Court reiterated that a general allegation that the contract was induced by fraud does not defeat a forum selection clause included in the contract unless “the inclusion of that clause in the contract was the product of fraud or coercion.”247 The doctrine is not binding on state courts applying state law and its logic is far from unassailable.248 Nevertheless, a growing number of states, which by now form a plurality, adopted this doctrine for both arbitration clauses and forum selection clauses. As one judge noted, “[w]ith the thunderclap of the federal Zeus, many timid state court minnows scattered. While no one has claimed that [the federal cases] preempt state law, many states have followed the United States Supreme Court’s lead in cut-and-paste local application of federal jurisprudence.”249 With Karon, Iowa became the latest state to join the plurality. In Karon, a contract for the sale of an airplane between Iowa parties contained a Kansas choice-of-law clause and an exclusive Kansas forum selection clause. Claiming that the contract was induced by fraud, the buyer sued the seller and broker in Iowa. Relying on the forum selection clause, the trial court dismissed the action. The Iowa Supreme Court affirmed the dismissal, holding that an allegation of fraud directed against the contract rather than specifically against the forum selection clause could not defeat the clause. After extensively discussing cases from both the plurality and the minority groups, the court concluded that the separability doctrine “makes sound policy sense when, as here, a multimillion-dollar commercial transaction is involved.”250 The court continued: If a forum-selection clause could be challenged simply based on fraud in an overall transaction, then the advantages of predictability and efficiency would be lost. Predictability would be lost because the parties would not be able to know the locus of litigation in advance (and perhaps retain counsel accordingly). Efficiency would be lost because it would be necessary to litigate the merits in order to determine the locus of litigation. In this case, plaintiffs acknowledge that it would be necessary to litigate their entire fraud claim in Iowa in order to determine whether the litigation should then proceed in Kansas.251 Justice Appel filed a strong dissent criticizing the logic of the separability doctrine and its importation into state law. He concluded that “in order to protect Iowa citizens from fraud in the inducement, Iowa judges should not race from the courthouse to surrender jurisdiction pursuant to a private forum-selection provision until the fraud-in-the-inducement question has been resolved in the Iowa courts.”252 E.Choice of Law and Arbitration Clauses Section 1 of the Federal Arbitration Act (FAA) exempts from the Act’s scope “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”253 In Circuit City Stores, Inc. v. Adams,254 the Supreme Court held that the exemption covers only contracts of employment of “transportation workers,” rather than all contracts of employment generally.255 However, the Court did not define the exact meaning of the phrase “engaged in foreign or interstate commerce.” In Waithaka v. Amazon.com, Inc.,256 and Rittmann v. Amazon.com, Inc.,257 the First and Ninth Circuits, respectively, had to answer this question. Both cases were class actions brought by Amazon’s local delivery drivers, who clearly qualified as transportation workers. The question was whether they engaged in interstate commerce. Amazon argued that they did not, because they only made local deliveries and did not actually cross state lines. Both courts rejected Amazon’s argument and held that the drivers were transportation workers engaged in interstate commerce and thus exempted from the scope of the FAA. Consequently, Amazon could not compel them to arbitrate under the FAA.258 Because in both cases, Amazon’s contracts contained a Washington choice-of-law clause, the next question was whether Amazon could compel arbitration under Washington law. The answer to that question depended on two identical provisions in both contracts, sections 11 and 12, as well as a severability clause contained in both contracts. Section 11(a) contained an arbitration clause, section 11(b) contained a class arbitration waiver, and section 12 provided that the contracts were governed by Washington law “except for Section 11 . . . which is governed by the Federal Arbitration Act.”259 Both courts held that Amazon could not compel arbitration under Washington law but for slightly different reasons. In Waithaka, which involved drivers who were domiciled and working in Massachusetts, the First Circuit found that the “except” clause in section 12, which referred to the FAA, was severable from the rest of section 12, which referred to Washington law. By contrast, the arbitration clause of section 11(a) and the class arbitration waiver of section 11(b) were non-severable, thus raising the possibility of compelling individual arbitration under Washington law. However, the court concluded that Massachusetts law foreclosed that possibility. The court found that even if the class arbitration waivers were enforceable under Washington law, they would not be enforceable in Massachusetts because they would violate a fundamental policy of Massachusetts, which had a materially greater interest in applying its law than Washington did. This policy was embodied in the Massachusetts Wage Act, the Independent Contractor Misclassification Law, and the Minimum Wage Law, which established the right of workers to proceed as a class and precluded contractual waivers of this and other rights guaranteed by these statutes. In Rittmann, which involved drivers domiciled and working in California, the Ninth Circuit agreed with the First Circuit that the drivers qualified as transportation workers engaged in interstate contract and thus their contracts were not subject to the FAA. However, Amazon argued that the FAA became applicable by virtue of the parties agreement, reasoning that that the FAA was “a body of substantive law that the parties are free to agree to apply, just as they could agree to apply the substantive contract law of a particular state that would not apply by its own force.”260 The court rejected the argument, reasoning that the parties may not “contract around the FAA’s transportation worker exemption.”261 Amazon then argued that the court should sever the reference to the FAA and allow arbitration under Washington law. The court rejected this argument as well. The court noted that Washington courts (1) construe any ambiguity against the contract’s drafter, and (2) do not excise an unconscionable provision if it means rewriting the contract. The court found that, under this standard, Amazon’s severance argument failed. Consequently, there was “no valid arbitration agreement,” the court concluded, and rejected “Amazon’s alternative bases to compel arbitration.”262 In Arafa v. Health Express Corporation,263 a similar class action involving New Jersey delivery drivers, the New Jersey Supreme Court ruled against the drivers. Their employment contracts contained clauses mandating arbitration under the FAA and prohibiting class arbitration. Because the drivers delivered packages in New Jersey “and surrounding areas,” they clearly engaged in interstate commerce and, consequently, their contracts were not governed by the FAA. However, the court “reject[ed] the proposition that the inapplicability of the FAA must vitiate the entire agreement to arbitrate.”264 On the contrary, the court concluded, the inapplicability of the FAA made room for the application of the New Jersey Arbitration Act (NJAA), which is “nearly identical to the FAA and enunciates the same policies favoring arbitration.”265 The court held that, for those contracts that contained New Jersey choice-of-law clauses, the NJAA became applicable by virtue of the parties’ choice. The court also held, however, that the NJAA applied even to the contracts that did not contain New Jersey choice-of-law clauses because the Act’s application is “automatic” to New Jersey contracts and “no express mention of the NJAA is required.”266 The court also held that the class arbitration waivers were valid and enforceable under the NJAA. In Delisle v. Speedy Cash,267 a loan contract between a Kansas lender and a California borrower contained a Kansas choice-of-law clause, an arbitration clause, and a clause waiving the borrower’s right to seek public injunctive relief in all forums. The latter clause was unenforceable under a decision of the California Supreme Court in McGill v. Citibank N.A.268 When the borrower sought an injunction enjoining the lender from violating several provisions of California consumer law, the borrower moved to compel arbitration. The California federal district court denied the motion and the Ninth Circuit affirmed. The court held that the FAA did not preempt the McGill rule because that rule was generally applicable and thus was a permissible defense under the FAA’s savings clause. The court also rejected the lender’s argument for applying Kansas law. Following section 187 of the Restatement (Second), the court found that, but for the Kansas choice-of-law clause, California law would govern the contract, that the McGill rule represented a fundamental policy of California, and California had a greater interest in applying its law than Kansas did. Mejia v. DACM Inc.269 involved similar facts and had the same outcome. Following McGill, a California court held unenforceable an arbitration clause in a contract that contained a Utah choice-of-law clause. The court found that, in the absence of the Utah clause California law would govern the contract, McGill represented a fundamental policy of California, and California had a greater interest in applying its law than Utah did. In Blondeau v. Baltierra,270 the Supreme Court of Connecticut held that an arguably erroneous choice-of-law decision by the Connecticut arbitrator did not amount to a “manifest disregard of the law,” which is an established ground for vacating a domestic arbitral award. One of the parties argued that the arbitrator erred when she applied Connecticut law to divide the spouses’ equity from their Connecticut house, although the parties’ prenuptial marital property agreement contained a French choice-of-law clause. However, it was not entirely clear that the house fell within the scope of the clause. The court noted that “manifest disregard” is “an extremely deferential standard of review”271 and is part and parcel of the parties’ choice of arbitration in lieu of litigation. “As an essential component of that choice,” the court reasoned, the parties agree to bypass the usual adjudicative apparatus, including its conventional appellate features, for the advantages that accompany private arbitration. To borrow a phrase from the marriage ceremony, that choice is made ‘for better or for worse,’ which, in this context, means that the arbitrator’s decision is final and binding unless it is manifestly, obviously, and indisputably wrong.272 The court listed the three elements of the “manifest disregard” standard273 and concluded that this award did not meet it. In Auto Equity Loans of Delaware, LLC v. Baird,274 another case involving a domestic award, the Delaware Supreme Court reached the same result in a case that also involved an arbitrator’s failure to abide by a choice-of-law clause. The court noted that choice-of-law clauses are not always enforceable and that, in any event, the arbitrator did not willfully flout the law. In Guarino v. Productos Roche S.A.,275 the court rejected the defendant’s argument that a Venezuelan award was contrary to Florida’s public policy. The defendant based his argument on the fact that the award held him personally liable for a corporate debt (jointly and severally with the corporation), even though he had signed the contract only in a representative capacity. The court noted that the contract contained a Venezuela choice-of-law clause and, under Venezuelan law, a person who signs on behalf of a corporate entity that is not registered in Venezuela can be held personally liable.276 F.Extraterritoriality of Labor Laws “From the air, the borders that divide state from state disappear. But in our federalist system, those borders still matter—even for those who make their living flying the friendly skies.”277 So said the California Supreme Court in Ward v. United Airlines,278 a putative class action brought by pilots and flight attendants against their employer, United Airlines, a company that has been using the “friendly skies” slogan since 1965. At issue was the applicability of section 226 of the California Labor Code, which requires employers to provide employees with a detailed wage statement containing specified information to enable employees to determine whether they are properly compensated. The plaintiffs resided and were paid in California but performed most of their work outside California. United is incorporated in Delaware and headquartered in Illinois. Invoking the recently fashionable presumption against extraterritoriality, United argued that to apply section 226 in this case would constitute an impermissible extraterritorial application of California law. The plaintiffs invoked the “mirror-image . . . presumption in favor of intraterritorial application,” arguing that, because they lived and were paid in California, the application of section 226 would not violate the presumption against extraterritoriality but would instead constitute “a run-of-the-mill intraterritorial application of state law.”279 The California Supreme Court found that the presumption against extraterritoriality was “not a particularly helpful way to approach the issue in this case,” which has “both extraterritorial and intraterritorial elements.”280 The presumption could not properly resolve this case, the court reasoned, unless one is prepared to conclude that “any extraterritorial effect at all is sufficient to bar application of California law, or, conversely, that any intraterritorial effect at all is sufficient to justify it.”281 Unwilling to follow such a simplistic approach, the court noted that the proper question is not whether a statute is intended to operate “extraterritorially” to interstate employment but rather “what kinds of California connections” suffice to trigger the application of the particular statutory provision.282 After examining the history and purpose of section 226 and considering all the alternatives proffered by the parties, the court concluded that this provision applies to (1) employees who perform most of their work in California, or (2) employees who perform some work in California and are “based in California, meaning that California serves as the physical location where [they] present[] [themselves] to begin work.”283 In Oman v. Delta Air Lines, Inc.,284 the plaintiffs were flight attendants employed by another non-California airline, Delta. They were not “based” in California as the Ward court defined that term, and they worked in California only episodically and for less than a day at a time. At issue was the applicability of the same provision involved in Ward (section 226), as well as another provision of the California Labor Code, section 204, which required employers to pay their employees semi-monthly. The California Supreme Court held that both provisions were inapplicable. McPherson v. EF Intercultural Foundation, Inc.285 involved the applicability of another provision of the California Labor Code, section 227.3, which requires employers to pay their employees for unused vacation time upon termination of their employment. The plaintiff worked for several years in California for a Massachusetts employer but, in 2005, she voluntarily moved to Virginia and continued working for the same employer until she retired in 2014. During those years, she continued supervising the employer’s California staff and also returned to California for work during the summer months. The California Court of Appeals held that section 227.3 became inoperable in 2005 when the employee moved to Virginia. Consequently, she stopped accruing vacation time after that year, including during the summer months when she returned to and worked from California. The California Supreme Court denied review. G.Statutes of Limitations The Uniform Conflict of Laws—Limitations Act of 1982 provides that, subject to some exceptions, “if a claim is substantively based” upon the law of a state other than the forum “the limitation period of that state applies,” and that the limitation period of the forum state “applies to all other claims.”286 A court identifies the state upon whose law is “substantively based” by utilizing its ordinary choice-of-law method for the particular substantive conflict. If the court follows one of the modern choice-of-law methods and all involved states have the same substantive law, the court will likely characterize the case as a false conflict and will apply the law of the forum. But what if, in the same case, the involved states have a different limitation period? Will the forum state’s limitation period necessarily apply? This was the question in Portfolio Recovery Associates, LLC v. Sanders,287 a contract case decided by the Supreme Court of Oregon, one of the seven states that adopted the Uniform Act.288Sanders was a dispute between a collection agency and a defaulting credit card holder. The credit card agreement between the credit card holder, who was then domiciled in Utah, and a Virginia credit card company contained a Virginia choice-of-law clause. However, that agreement was superseded by a new “contract for an account stated” when the company sent a final demand letter to the defaulting credit card holder (who at that time was domiciled in Washington) and he did not object.289 The collection agency, as an assignee of the credit card company, sued the credit card holder in Oregon, where he had moved his domicile in the meantime. The action was timely under Oregon’s six-year statute of limitations but not under Virginia’s three-year statute. The court held that the Oregon statute applied. In the abstract, there is nothing surprising about a court applying the forum’s statute of limitations. After all, this was the traditional solution to limitation conflicts, which continues to be followed in twenty-eight states.290 However, the fact that the Uniform Act was intended to replace the traditional solution raises doubts about the correctness of this result. Moreover, as explained below, the way the court reached this result raises additional concerns. As noted earlier, the Uniform Act authorizes the application of the limitation period of the state on which the claim is “substantively based.” Oregon adopted the Act in 1987, fifteen years before Oregon codified its conflicts law by adopting a new statute for contract conflicts.291 Ordinarily, an Oregon court should apply the new statute for identifying the state on whose law the claim was “substantively based.” The Sanders court tried, and it deserves credit for the effort. But, somehow, the court concluded that the statute “provides no mechanism for the court to determine . . . [whether] the claim is substantively based on the law of another state.”292 Why? Because the statute provides that one of the factors for determining the applicable law in contract conflicts is an evaluation of “the relative strength and pertinence” of the policies underlying any “apparently conflicting laws” of the states that have a relevant connection with the transaction or the parties.293 Placing undue emphasis on the italicized phrase, the court concluded that, if the laws of the involved states do not conflict, the entire statute becomes inapplicable or in the court’s words, it provides “no path”294 or “mechanism” for resolving the conflict.295 The court gave up too early. It made no effort to determine whether any of the other factors in the same statute provided a path for determining the applicable law. Among those factors are the states’ “relevant connections with the transaction and the parties” and a list of general policies of contract law, such as “giving effect to the justified expectations of the parties.”296 Instead of considering those factors, the court chose the common law path,297 resorting to Oregon’s pre-codification conflicts law, even though—as the court acknowledged—that law was meant to be replaced by the new statute.298 Relying on the 1973 case Erwin v. Thomas,299 the court concluded that, because the defendant did not identify any differences between the substantive contract laws of Oregon and Virginia: (1) “[A]n Oregon court should do ‘what comes naturally and appl[y] Oregon law’ to resolve the substance of the account-stated claim”;300 and (2) “That conclusion resolves the statute of limitations dispute as well; because the claim is not substantively based on the law of Virginia, ‘[t]he limitation period of [Oregon] applies to’ the claim.”301 A hypothetical scenario can help examine whether this result is correct. Suppose that: (1) A and B, both State X domiciliaries, enter into a contract in State X that was to be performed in State X; (2) B fails to perform and A sues him in State Y, where B moved his domicile in the meantime; and (3) States X and Y have the same laws regarding contract performance. In this scenario, it makes no difference which state’s performance law the court applies. This is why most courts would apply the law of the forum (State Y). They will do so, not because the substantive basis of the complaint moved from State X to State Y, but because, regardless of that factor, the result will be the same under either law. Consequently, practicality and convenience make the application of forum law the most sensible solution. Suppose now that States X and Y have a different limitation period and, as in Sanders, this is the only disputed issue. Does this mean that A’s claim for nonperformance morphs from one based on the law of State X to one “substantively based” on the law of State Y? The answer cannot be affirmative. As noted earlier, the reason courts apply the law of the forum when there is no conflict between the substantive laws of the involved states is practicality and convenience. In this scenario, however, there is a conflict on the limitation issue. Consequently, practicality and convenience must yield to the need to provide an intelligent solution to this conflict. Despite the Sanders court’s contrary conclusion, the Oregon statute does provide a path for an intelligent solution to such a conflict by listing several factors, in addition to the policies of the conflicting laws,302 and by repudiating the Erwin court’s urge to “do what comes naturally.” Moreover, the court’s reliance on Erwin may create methodological confusion among the lower courts. Erwin was not a contract case but a tort case, in which the court faithfully followed Currie’s interest analysis approach. The 2001 contracts statute repudiated that approach and the 2009 statute for tort conflicts reiterated that repudiation and legislatively overruled Erwin’s holding.303 Fortunately, the Sanders court did not rely on Erwin’s holding or its adoption of Currie’s approach. Instead, the court relied on a preliminary statement in Erwin that, “‘before engaging in the mysteries of the solution of an actual conflict, we must make certain that we have a conflict of consequence which requires a choice.’”304Erwin explained that such a conflict does not exist (1) when only one state has an interest in applying its law, or (2) when both states have the same law. These are the two categories of false conflicts. Importantly, however, Erwin itself did not fit in either category. Instead, it was a “no-interest” or “unprovided for” case, i.e., a case in which (in the court’s eyes) neither involved state had an interest in applying its law. The Erwin court concluded that, in such a case, “an Oregon court does what comes naturally and applies Oregon law.”305 The Sanders court concluded that the same “natural” solution was appropriate in this case. This reliance on Erwin, despite the differences between the two cases and the intervening legislative changes between them, is problematic. It may lead lower courts to believe that Erwin continues to be viable, not only for the elementary proposition for which the Sanders court used it, but also for its methodology and the accompanying baggage. This concern is not unrealistic because many attorneys and some courts are not accustomed to reading statutes. For example, in the Sanders case, the Court of Appeals, unlike the Supreme Court, did not appear to be aware that the new conflicts statutes have repudiated Erwin’s methodology and holding.306 In Caruso v. Wooten,307 the action was timely under the law of the forum state, Louisiana, but was barred by the Texas statute of limitation. For cases of this pattern, article 3549 of the Louisiana conflicts codification of 1991 provides that, “[w]hen the substantive law of another state would be applicable to the merits of an action brought in [Louisiana]” and the action is barred by the statute of limitations of that state but is timely under Louisiana law, “the action shall be dismissed unless . . . maintenance of the action in [Louisiana] is warranted by compelling considerations of remedial justice.”308Caruso arose out of a Texas traffic accident involving a Texas driver and a Louisiana driver. The Texas driver sued the Louisiana driver after the expiration of Louisiana’s one-year statute of limitations but before the expiration of Texas’s two-year statute. Both parties agreed that Texas law would govern the merits of the action but disagreed on the applicable statute of limitations. The Texas plaintiff argued that maintenance of the action in Louisiana was “warranted by compelling considerations of remedial justice.” The Louisiana Supreme Court was not persuaded. The court quoted extensively from the official comments of the codification’s reporter, which state that compelling considerations would be present, inter alia, if “through no fault of the plaintiff an alternative forum is not available . . . or . . . where suit in the alternative forum, although not impossible would be extremely inconvenient for the parties.”309 The comments also state that “the plaintiff’s own procrastination is not likely to ever make his case compelling enough to reach the threshold of this exception.”310 The court found that the plaintiff’s case fell well below this threshold. Texas obviously had jurisdiction and the plaintiff did not provide “any compelling reasons why she could not have brought her suit in Texas.”311 Litigation in Texas was neither impossible nor inconvenient. The real reason the plaintiff chose to sue in Louisiana was to join the defendant’s insurer under Louisiana’s direct-action statute. But, as the court noted, the direct action statute does not create an independent cause of action against the insurer. Rather it grants a procedural right of action against the insurer when the plaintiff has a substantive cause of action against the insured.312 In this case, that action was barred because of the plaintiff’s own procrastination. Massachusetts is one of the eight states that adopted the revised version section 142 of the Restatement (Second) for limitation conflicts.313 Section 142 provides that “[t]he 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.”314Pacific Insurance Company, Ltd. v. Champion Steel, LLC315 involved this scenario. The action was timely under Massachusetts’ three-year statute of limitations but was barred by Connecticut’s two-year statute. Following a construction site accident in Massachusetts that resulted in injuries to a Connecticut worker, the worker received worker’s compensation benefits under Connecticut law through his Connecticut employer. The employer’s insurer (as a subrogee of the employer) sued the employer’s fellow subcontractors and the general contractor in Massachusetts for supplying a defective lifeline that failed and caused the worker’s injuries. The subcontractors, who were Connecticut companies, and the general contractor, which was a Rhode Island company, argued for the application of Connecticut’s two-year statute of limitations, reasoning that this was a dispute between Connecticut parties arising from Connecticut worker’s compensation statute and that, consequently, Massachusetts had no interest in applying its law. The court rejected the argument. The court reasoned that, because the court “will be enforcing the norms of Massachusetts tort law with respect to conduct undertaken at a worksite here in the Commonwealth,” Massachusetts had “a substantial interest in enforcing its tort law for the full three-year period that the Massachusetts Legislature judged proper to allow individuals to seek redress for injuries caused by negligence in the Commonwealth.”316 The court also rejected the defendants’ argument that the parties’ contacts with Massachusetts were “fleeting.” Said the court: The parties were not visitors passing through our State. Rather, this case involves allegedly tortious conduct doing injury to a worker at a worksite at a Massachusetts high school by defendants contracted to do work there over the course of months. Although the plaintiffs and the injured party reside in Connecticut, and the defendants are out-of-State companies, their contacts with the Commonwealth were not transitory.317 The court concluded: Because the injury was caused by the alleged negligence of the defendants performing work and providing equipment and safety planning for that work, at the construction site in Massachusetts, despite the residency of the injured worker, the Commonwealth would have a substantial interest in the litigation. Consequently, the Massachusetts three-year statute of limitations would apply.318 H.Insurance Conflicts “This appeal presents conflict of laws . . . questions in an insurance coverage dispute,” said the Fourth Circuit, and immediately “apologize[d] . . . for the excitement generated by . . . the issues.”319 Although the apology was not necessary, the court’s polite statement reflects the common perception that most insurance conflicts cases are less than exciting. But this is not to say that they are unimportant, and not only for the involved parties. Sometimes, important legal issues hide among the intricate but often mundane details of these cases. For example, Allstate Insurance Co. v. Hague,320 one of the most consequential Supreme Court decisions in conflicts law in the last fifty years, was a lowly insurance stacking dispute in which the difference was whether Allstate should pay forty-five rather than fifteen thousand dollars to the insured. This year did not produce any cases of Allstate’s magnitude but, in the interest of completeness, this Survey continues to carry out its self-imposed obligation to present an annual sampling. Coincidentally, Allstate was the insurer in the first case of this sampling, Allstate Fire & Casualty Insurance Co. v. Stratman.321 Allstate insured a car garaged in Kansas and owned by a Kansas domiciliary. The insurance policy contained one paragraph stating that the policy was governed by Kansas law, and a second paragraph stating that, if the car was involved in an accident in another state, the policy would be governed by the law of that state, but “only if the laws of that [state] would apply in the absence of a contractual choice of law provision.”322 While driving the car, the Kansas insured caused an accident in Missouri, which resulted in paralyzing the driver of the other car. The victim’s family offered to settled their claims for the insured’s policy limits of $300,000, but Allstate rejected the offer, following which the family sued the insured and Allstate in Missouri and recovered a thirty-four-million-dollar judgment. The insured then sued Allstate, also in Missouri, for bad faith insurance practices in refusing to approve the settlement. The trial court held that Kansas law governed and granted summary judgment in favor of Allstate. The court of appeals reversed, finding that Missouri law governed under the above-quoted second paragraph. The court reasoned that an action for bad faith insurance practices is a tort action and thus the applicable provision of the Restatement (Second) was section 145, not section 188 or section 193 as Allstate argued. The court concluded that Missouri had the most significant relationship with regard to this post-accident practices of the insurance company. In Helton v. United Services Automobile Association,323 the injured insured did not inform her insurer before accepting a settlement from the driver of the other car involved in the accident. Under the terms of the policy, which was issued when the insured was domiciled in Kentucky and was valid under Kentucky law, the insured’s failure to notify her insurer would release the insurer from the obligation to provide underinsurance (UI) coverage. However, one year before the accident, the insured moved to Georgia, where the insurer sent her the renewed policy, and the accident occurred in Georgia. Under Georgia law, the insurer would be obligated to provide UI coverage. The Georgia trial court held that Kentucky law governed because “ . . . this being a Kentucky contract, Kentucky rates, everything is Kentucky, Kentucky, Kentucky.”324 The appellate court agreed that, in general, Kentucky law governed the policy, but concluded that on the specific issue before the court, which involved post-accident events, it was possible that Georgia law might be applicable. Because the trial court disposed of the case on a motion for summary judgment, the appellate court vacated the judgment and remanded the case to the trial court for closer consideration of this issue after full argument. In Stagnaro v. State Farm Mutual Automobile Insurance Co.,325 the accident occurred in Kentucky, but barely—on the Kentucky part of a bridge over the Ohio River, which forms the boundary between Kentucky and Ohio. However, the insurance policy was issued in Ohio to an Ohio resident and contained an Ohio choice-of-law clause. On the disputed issue of UI coverage, Ohio law favored the insurer and Kentucky law favored the insured. The Kentucky court held that Ohio law governed. In Par v. GEICO General Insurance Co.,326 the insured was shot and killed while driving on the Ohio side of the Ohio River, but the insurance policy was issued in Kentucky. The insurer refused to provide coverage because the insured’s death did not “arise out of” the “use” a motor vehicle as provided in the policy. The Ohio court held for the insurer after finding that Kentucky law governed. The court reasoned that, under Ohio’s choice-of-law precedents, “the predominate factor is the principal location of the insured risk” which the court assumed to be in Kentucky, and all “the relevant factors point in [that] direction.”327 In Eastern Concrete Materials, Inc. v. ACE American Insurance Co.,328 the issue was the interpretation of a pollution exclusion clause in a nationwide commercial liability insurance policy. The insured was a New Jersey corporation that operated a quarry in New Jersey. It was a wholly owned subsidiary of a Texas-based corporation, which negotiated and purchased the policy in Texas. The dispute centered on whether the exclusion clause precluded coverage for an unplanned discharge of “rock fines,” pellets produced by the New Jersey quarry. Under Texas law, the answer was yes. Under New Jersey law, the answer was no. Predictably, the insured argued for the application of the law of New Jersey as the principal location of the insured risk, reasoning that New Jersey had “an interest in assuring a New Jersey policyholder is not wrongly denied funds to repair [New Jersey] property.”329 The Fifth Circuit rejected the argument, reasoning that New Jersey’s interest is small because “the cleanup has already taken place”330 and that “the place of contracting, not the place of the underlying incident, is the dominant consideration for choice of law in an insurance-coverage dispute.”331 The court accepted the insurer’s argument that “giving [controlling] weight to the location of the insured risk would potentially subject an insurer, through one contract, to the laws of numerous states on issues that are more appropriately determined by the state’s law that promulgated the policy form at issue.”332 Following Texas’s choice-of-law approach, specifically section 188 of the Restatement (Second), the court concluded that Texas had the most significant relationship because the policy was “negotiated, brokered, and issued in Texas”333 and that Texas law should govern.334 I.Domestic Relations 1.Marriage and Divorce In Claflin v. Claflin,335 the parties were married in the Philippines in 1994, and then moved to Florida where they lived for nineteen years before the wife filed for divorce. The husband argued that the marriage was invalid because, unbeknownst to him at the time, his wife was already married to another man in 1989, and that marriage had not been dissolved. The wife testified that the 1989 marriage was arranged by her parents: she was barely seventeen at the time, and she did not attend the ceremony nor did she live with that man. During the course of the divorce proceedings, she obtained a judgment from the Philippines (the San Mateo judgment), which held that the 1989 marriage was “void from the beginning” because of the woman’s minority.336 The husband then obtained another judgment from a different court in the Philippines (the Pasig City judgment), which held that the 1989 marriage was voidable, rather than void, and that, in the absence of judicial declaration of nullity, that marriage continued to be an impediment to another marriage, thus rendering the 1994 marriage bigamous and therefore void. The Florida trial court found that the two Philippine judgments were irreconcilable and that it had the discretion to “recognize the earlier judgment, the later judgment, or neither one.”337 The court chose to follow the San Mateo judgment and proceeded to grant a divorce under Florida law. The court of appeals affirmed but on slightly different reasons. The court found that the two Philippine judgments were not irreconcilable because they both agreed that the 1989 marriage was not valid. The difference was that the Pasig City judgment took the next step of pronouncing on the validity of the 1994 judgment. The Florida court concluded that that part of the Pasig City judgment was against Florida’s public policy and should not be given effect.338 In Melki v. Melki,339 the parties were married in an Orthodox church in Lebanon but lived for seventeen years in Maryland, where the wife filed for a no-fault divorce based on a twelve-month separation. The husband, who already had two precious divorces, strenuously objected to the divorce with three off-the-wall arguments, to which the court patiently responded. The first argument was that the Maryland court did not have subject-matter jurisdiction because, under the law of the Orthodox Church, which was applicable under Lebanese law, only the courts of that Church had jurisdiction to grant a divorce and only on limited grounds, which did not include a no-fault divorce based on twelve months of separation. The court rejected the argument, noting that Maryland courts had both subject matter and personal jurisdiction since both spouses were long-time Maryland domiciliaries and that under standard American law, a court that has jurisdiction applies its own law on the grounds of divorce. The husband’s second argument was that the application of Maryland’s (secular) law violated the impairment of contracts clause of the U.S. Constitution. Noting that this argument “deserves scant attention,” the court rejected it, reasoning that, although marriage is a civil contract for some purposes, it is not a contract within the meaning of the Contract Clause as to be constitutionally protected from legislative regulation.340 Finally, the husband argued that a divorce based on a twelve-month separation would violate the Free Exercise Clause of the First Amendment because it would force him to commit a mortal sin according to his religion. The court rejected the argument, noting that granting a divorce under a neutral law of general applicability did not violate the Free Exercise Clause even if the spouse’s religion prohibits divorce. “In fact,” said the court, “it might well violate the Establishment Clause of the First Amendment to compel Wife to remain married to Husband because of Husband’s religious beliefs, for the court would then be preferring one spouse’s beliefs over the other spouse’s.”341 The court concluded: “Husband still has his constitutional prerogative to believe that in the eyes of God, he and his estranged wife are ecclesiastically wedded as one, and may continue to exercise that freedom of religion according to his belief and conscience.”342 2.Mahr In Nouri v. Dadgar,343 the question was the enforceability of a mahr (nuptial gift) agreement. Mahr is a sum of money or some other economically valuable asset that a husband must give to his wife. It consists of an immediate gift and a deferred payment, which the wife may demand at any time, although customarily it is deferred until divorce or the husband’s death. A mahr can operate as a disincentive for a husband to exercise his disproportionate power to divorce his wife without cause (talaq) under Islamic law.344Mahr also compensates for the fact that, under Islamic law, the wife is not entitled to marital property, which can be divided upon divorce, nor alimony or child support. In Nouri, the parties were married in both a religious and a civil ceremony and agreed to a mahr of 1,353 Iranian golden coins, estimated to be worth nearly half a million dollars. The wife filed for divorce in Maryland and asked for enforcement of the mahr. The husband asked the court to rule the mahr agreement unenforceable on both public policy and constitutional grounds. Before ruling on this issue, the court stated that (1) Maryland courts may resolve secular disputes that arise in religious contexts without violating the religion clauses of the First Amendment, as long as they can do so by applying neutral principles of contract law without being involved in theological or doctrinal matters, and (2) the proper legal framework for determining the enforceability of mahr is the framework that governs contracts between parties in a confidential relationship, which requires a higher scrutiny to ensure fairness and equity. The court held that a mahr agreement that meets the above requirements is enforceable and does not violate Maryland’s public policy. Responding to the husband’s argument that a mahr agreement precludes the equitable distribution of property upon divorce, the court noted that Maryland law permits spouses to enter into premarital or post-marital agreements that deviate from the default rules that govern the property consequences of the dissolution of a marriage. The court also rejected the husband’s arguments that a mahr encourages divorce, or that it is the equivalent of a dower, which Maryland had previously abolished. 3.Marital Property In Mbatha v. Cutting,345 the parties met in South Africa, the husband’s domicile, married in New York, the wife’s domicile, lived together for two months in South Africa, and then the wife moved to Georgia to live with her parents. Six months later, the husband filed for divorce in Georgia. The issue was what law would govern the parties’ rights to marital property. The wife argued for the application of the law of South Africa, which has a community property system, reasoning that that is where the parties had their short but only common matrimonial domicile. The husband argued for the application of the law of Georgia, which has a separate property system, reasoning that Georgia was the only interested state. The trial court held, in a circuitous way, that South African law should govern. The court reasoned that, because the marriage took place in New York, the “marriage contract” was made there but was to be performed in South Africa. Then, applying New York’s center of gravity approach, the court concluded that South African law should govern. The Court of Appeals reversed. The court reasoned that, because the Georgia Supreme Court had rejected all modern choice-of-law approaches and decided to retain the traditional rules in tort and contract conflicts, the safest option would be to also follow the traditional rules for marital property conflicts. Accordingly, the court held that the law of the situs would govern the parties’ rights in immovable property and the law of the domicile of the acquiring spouse would govern their rights in movable property.346 4.Other Domestic Relations Space and time limitations do not allow discussion of other cases involving other domestic relations conflicts. The most noteworthy among them are three international child custody cases involving the application of the Hague Convention on the Civil Aspects of International Child Abduction,347 one interstate child custody case,348 two cases involving enforcement of sister-state support orders,349 and two cases involving consent to adoption.350 J.Miscellaneous Conflicts The same space limitations prevent discussion of cases on other conflicts subjects, such as wills,351 cultural property,352 proof of foreign law,353 the substance versus procedure dichotomy,354 corporate conflicts,355 extraterritorial evidence collection,356 and evidentiary privileges,357 Indian treaty rights and Indian sovereign immunity,358 and a fascinating case involving water rights in a New Mexico river in a conflict between the Pueblos and the state and local governments.359 The footnotes provide citations for interested readers. III. Constitutional Limitations Lebamoff Enterprises Inc. v. Whitmer360 is a very well-written and interesting decision involving the “accordion-like” interplay361 between the dormant Commerce Clause and the Twenty-First Amendment to the Constitution, which grants states broad powers to regulate the intrastate distribution and sale of alcohol.362 Exercising this power, Michigan enacted a new law that allowed Michigan alcohol retailers to deliver alcohol products directly to Michigan consumers through “third party facilitators” or common carriers like FedEx or UPS. An Indiana wine retailer argued that the new law violated the Commerce Clause and the Privileges and Immunities Clause because it did not give the same option to non-Michigan alcohol retailers. The Sixth Circuit rejected both challenges. The court discussed the history of the Twenty-First Amendment and why it “gives the States regulatory authority that they would not otherwise enjoy.”363 This authority allows states broad latitude to regulate instate distribution of alcohol through a “three-tier” system of controlling alcohol producers, wholesalers, and retailers. Because of this latitude, the court explained, courts apply a “different” test in reviewing a dormant Commerce Clause challenge to state alcohol laws: Rather than skeptical review, we ask whether the law can be justified as a public health or safety measure or on some other legitimate nonprotectionist ground. But if the predominant effect of the law is protectionism, rather than the promotion of legitimate state interests, the Twenty-first Amendment does not shield[] it.364 The court concluded that new Michigan law easily passed this “different” test. Noting that states “have legitimate interests in promoting temperance and controlling the distribution of [alcohol],”365 the court found “nothing unusual . . . about prohibiting direct deliveries from out of state . . . , or about allowing in-state retailers to deliver alcohol within the State.”366 Out-of-state retailers are subject to different regulations. For example, Indiana allowed sales “below cost, with volume discounts, on credit, and with no minimum prices,”367 none of which were allowed by Michigan’s regulations. “Opening up the State to direct deliveries from out-of-state retailers . . . would create a sizeable hole in Michigan’s three-tier system” and would leave “too much room for out-of-state retailers to undercut local prices and to escape [Michigan’s] interests in limiting consumption.”368 Thus, even if the Michigan law had a protectionist motive, the law had a “legitimate goal of evening the playing field”369 between Michigan’s retailers who “live with the bitter and sweet of Michigan’s three-tier system” and out-of-state retailers like plaintiff who “seizes the sweet and wants to pass on the bitter.”370 The court also rejected the plaintiff’s privileges and immunities challenge. After noting that the Supreme Court had rejected the notion that that the right to sell alcohol was a privilege or immunity under the similarly worded clause of the Fourteenth Amendment,371 the court pointed out that the Michigan law did not discriminate on the basis of citizenship. To the contrary, the law allowed out-of-state retailers to sell alcohol in Michigan, as long as they “play[ed] by the Michigan rules,” i.e., setting up a store in Michigan and obtaining a Michigan retail license.372 IV. Transnational Service of Process Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co.373 is an important decision of the California Supreme Court interpreting the Hague Service Convention.374 The specific question was whether contracting parties may avoid the Convention’s application by agreeing to an alternative, local method of service of process. Article 1 of the Convention provides that it “shall apply in all cases, in civil and commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.”375 However, the Convention does not answer the question of when “there is occasion” to transmit such a document “for service abroad.” In Volkswagenwerk Aktiengesellschaft v. Schlunk,376 the United States Supreme Court held that the answer to this question depends on the law of the sending forum.377 In that case, the law of the forum state of Illinois authorized service of process on a foreign corporation through service on its Illinois subsidiary. The Court concluded that, because under the law of the forum state service could be effected locally, there was “no occasion” for “service abroad” and, consequently, the Convention was inapplicable.378 In Rockefeller, the agreement between the parties, a California company and a Chinese company, contained California arbitration, forum selection, and choice-of-law clauses. The agreement stated that the parties “shall provide notice . . . to each other . . . via Federal Express or similar courier, with copies via facsimile or email, and shall be deemed received 3 business days after deposit with the courier,” and that the parties “hereby . . . consent to service of process in accord with the notice provisions above.”379 Under California law, this method of service was perfectly legal, and the California company complied with it by sending the relevant documents through Federal Express and email. The question was whether the Convention allowed this method and, in turn, the answer depended on whether the Convention was applicable to begin with. The Chinese company relied on Article 10 of the Convention, which states that “[p]rovided the State of destination does not object, the present Convention shall not interfere with . . . (a) the freedom to send judicial documents, by postal channels, directly to persons abroad . . .”380 In ratifying the Convention, China formally objected to Article 10. The Chinese company argued that this objection had the effect of nullifying agreements such as the one between the parties in this case, in which China was the “state of destination.” The court rejected the argument. The court framed the question as “whether China’s objection estops its citizens from agreeing to notification arguably covered by article 10.”381 More precisely, however, this is not a question of individual estoppel, i.e., whether Chinese citizens could disobey their government’s objection. Nor is the citizenship of the service addressee a determinative factor if the address is outside China. Instead, the relevant factor is whether China is the “State of destination.” If it is, then China’s objection to Article 10 would be controlling—but only in cases in which the Convention is applicable to begin with. In fact, this is the gist of the court’s answer to the basic question. i.e., China’s objection to Article 10 was inapplicable because the Convention itself was inapplicable. In the court’s words, “if the Convention applied here, . . . China’s objection to foreign mail service under article 10(a) would preclude direct service via Federal Express, regardless of whether California law authorized such service.”382 One way of summarizing the court’s reasoning and conclusion is as follows: (1) Whereas, the Hague Service Convention applies when “there is occasion . . . for service abroad”; (2) Whereas, under Volkswagenwerk, the law of the sending forum determines whether “there is occasion . . . for service abroad”; and (3) Whereas, in this case, the law of the forum authorizes an informal method of service that does not require using the Convention’s formal mechanisms for effecting service abroad; (4) Therefore, the Convention is inapplicable to this case, and China’s objection to the agreed informal method, although authorized by Article 10, has no bearing on this case. Obviously, the California court’s decision has significant practical implications. A contrary holding would have disrupted thousands of similar agreements between American companies and Chinese companies or other foreign-based companies, which provide for this informal, easy, and speedy method of service. As the court noted, [h]olding that the Convention does not apply when parties have agreed to waive formal service of process in favor of a specified type of notification serves to promote certainty and give effect to the parties’ express intentions. Conversely, to apply the Convention under such circumstances would sow confusion and encourage gamesmanship and sharp practices [and] . . . would allow people to unilaterally negate their clear and unambiguous written waivers of service by the simple expedient of leaving the country.383 V. Federal Law in the International Arena A.The Constitution Hernández v. Mesa384 is the last decision in a disturbing case that has occupied this Survey five times, as the case went up and down the federal courts ladder. Mesa, a U.S. Customs patrol officer standing on the U.S. side of the U.S.–Mexico border, shot and killed Hernández, an unarmed fifteen-year-old Mexican boy standing on the Mexican side of the border. In a five to four opinion written by Justice Alito, the Supreme Court held that the boy’s parents were not entitled to a Bivens action against Mesa.385 A Bivens action is a judicially created action for damages against federal officers who violate the plaintiff’s federal constitutional rights. The action is brought against the officers in their personal capacity and differs from two similar actions created by statute. The first statute is the Federal Tort Claims ACT (FTCA), which allows actions against the United States for certain torts committed by federal officers acting within the scope of their authority. These actions, however, are not available for “a claim arising in a foreign country,”386 a phrase that the Supreme Court interpreted as “a claim for injury . . . occurring in a foreign country.”387 The second statute is 42 U.S.C. § 1983, which provides an action to U.S. citizens or persons “within the jurisdiction” of the United States for constitutional or other violations committed by persons acting under color of state law. During oral arguments, Mesa acknowledged that “Hernández’s parents could have maintained a Bivens action had the bullet hit Hernández while he was running up or down the United States side of the [border].”388 However, because the bullet hit Hernández while he was on the Mexican side of the border, and because neither of the aforementioned statutory actions were available to the parents, it was “Bivens or nothing.”389 The Supreme Court opted for nothing. The Court began its analysis by referring to its recent decision in Ziglar v. Abbasi,390 which signaled a retreat from the good old days of the ancien régime when a different majority of the Court was, in the eyes of the Court’s present majority, too generous in allowing a Bivens action.391Abbasi stated that, when a case involves a “new context,” as compared to previous cases that allowed a Bivens action, courts should “hesitate” to allow such an action and should do so only after carefully examining all relevant factors, especially separation of powers principles.392 The Court found that the cross-border elements of the Hernández case made it “glaringly obvious”393 that it involved and new context and concluded that several factors “raise[d] warning flags” against allowing the action.394 The first factor was “the potential effect on foreign relations,”395 which the Constitution assigns to the executive and legislative branches. In this case, the Executive concluded that officer Mesa “did not act inconsistently with [Border Patrol] policy or training regarding use of force” and decided not to charge him or extradite him to Mexico.396 “In the absence of judicial intervention,” said the Court, the two countries “would attempt to reconcile their interests through diplomacy” and courts should not “arbitrate between them.”397 The second factor was that this case “implicates an element of national security.”398 The Court referred to the thousands of people that cross the U.S.–Mexico border every day and the difficulties encountered by border patrol officers in policing the border, a task that has “a clear and strong connection to national security.”399 The Court derived the third factor by examining “analogous” federal statutes, such as the aforementioned FTCA and § 1983, which show that, “[w]hen Congress has enacted statutes creating a damages remedy for persons injured by United States Government officers, it has taken care to preclude claims for injuries that occurred abroad.”400 The Court also mentioned the presumption against extraterritoriality, which of course was not applicable in this case which involved intraterritorial conduct, but “‘ensure[s] that the Judiciary does not erroneously adopt an interpretation of U.S. law that carries foreign policy consequences not clearly intended by the political branches.’”401 The Court concluded as follows: “When evaluating whether to extend Bivens, the most important question is who should decide whether to provide for a damages remedy, Congress or the courts? . . . The correct answer most often will be Congress. That is undoubtedly the answer here.”402 In a sharp dissent, Justice Ginsburg disputed the majority’s premise that Hernández presented a “new context” just because of “the fortuity that the bullet happened to strike Hernández on the Mexican side of the [border]”403 That “should not matter one whit,” Ginsburg noted, because the purpose of Bivens is to deter the officer404 and the place of conduct “has peculiar significance” when, as here, “‘the primary purpose of the tort rule involved is to deter or punish misconduct.’”405 Because in this case the officer’s conduct occurred on United States soil, “[i]t scarcely makes sense for a remedy trained on deterring rogue officer conduct to turn upon a happenstance subsequent to the conduct—a bullet landing in one half of a [border], not the other.”406 Unlike the majority, Ginsburg reasoned that a Bivens remedy would neither undermine border security407 nor adversely affect foreign relations.408 On the contrary, it would honor the United States’ commitments under the International Covenant on Civil and Political Rights to provide a remedy to victims of law enforcement misconduct.409 Agency for International Development v. Alliance for Open Society International, Inc.410 involved a federal statute that limited the funding of American and foreign nongovernmental organizations to those with “a policy explicitly opposing prostitution and sex trafficking.”411 In 2013, the Court held that this limitation amounted to an unconstitutional restraint on free speech when applied to American organizations.412 The American organizations then challenged the statute’s application to their foreign affiliates. The Court rejected the challenge, holding that the foreign organizations, which were separate legal entities from their American affiliates, were foreign citizens outside the United States and, as such, these entities were not entitled to the protection of the U.S. Constitution.413 B.Federal Criminal Statutes The federal wire fraud statute (18 U.S.C. § 1343) imposes criminal penalties on a person who “having devised . . . any scheme . . . to defraud . . . , transmits . . . by means of wire . . . any writings . . . for the purpose of executing such scheme.”414 In United States v. Hussain415 and United States v. McLellan,416 the defendants used domestic wires in furtherance of a fraudulent scheme concocted and executed abroad. The question was whether, the defendants’ convictions under these circumstances were permissible domestic applications of the statute. In turn, that question depended on identifying the statute’s focus under the second step of the test articulated by the Supreme Court in RJR Nabisco, Inc. v. European Community.417 Both courts, in the First and the Ninth Circuit, upheld the convictions after finding that the focus of the statute was the misuse of the wires rather than the scheme itself. As the Ninth Circuit put it, the statute “protects the instrumentalities of communication, making the use of the . . . wires as part of a fraudulent scheme an independent offense quite separate from any other potentially illegal conduct.”418 In United States v. Napout,419 the Second Circuit gave the same answer in identifying the focus of 18 U.S.C. § 1346, which criminalizes the use of the wires in a scheme “to deprive another of the intangible right of honest services.”420 The court concluded that the statute’s focus was the use of domestic wires and then recited a plethora of evidence showing such use in transferring millions of dollars in bribes to the defendants’ bank accounts. The defendants were the presidents of the Brazilian and Paraguayan soccer federations representing their country in the international soccer federation known as FIFA (Fédération Internationale de Football Association). They were implicated in a scandal that involved bribes and kickbacks during the process FIFA and its regional associates used to sell broadcasting rights to television networks. The defendants argued that the district court erred in refusing to allow evidence that commercial bribery was lawful in Brazil and Paraguay and thus deprived them of the ability to prove that they lacked the fraudulent intent or bad faith, both of which are necessary elements of the crime of wire fraud. The Second Circuit rejected the argument, reasoning, inter alia, that whether the defendants acted in bad faith “turned not on whether they had acted with the intent to violate the laws of their home countries, but whether they had understood that their accepting bribes violated their duties to FIFA and [the South American soccer federation] under the organizations’ codes of ethics.”421 The defendants failed to show that these codes condoned bribery. United States v. Garcia Sota422 involved the killing of an American law enforcement officer, who also had diplomatic status, in Mexico by Mexican defendants. Following extradition to the United States, the defendants were charged with violating (a) 18 U.S.C. § 1114, which criminalizes the killing of an officer or employee of the United States, (b) 18 U.S.C. § 1116, which criminalizes the killing of certain persons protected under international law; and (c) 18 U.S.C. § 924(c), which increases the sentence of defendants who use a firearm in the commission of a crime. The court found that § 1114 did not apply extraterritorially,423 § 1116 expressly applied extraterritorially, and § 924(c) applied extraterritorially because § 1116, the statute that defined the predicate crime, applied extraterritorially. C.Copyright and Trademark Acts In IMAPizza, LLC v. At Pizza Ltd.,424 a U.S. company operating a chain of pizza restaurants under the name “&pizza,” sued a U.K. company that operated a pizza restaurant in Edinburg, Scotland, under the name “@pizza” for violating the plaintiff’s rights under the Copyright Act and the Lanham Trademark Act. The alleged copyright infringements consisted of downloading copyrighted pictures of the plaintiff’s restaurants from U.S. websites and using them in Scotland as the model for copying the appearance of the plaintiff’s restaurants. The court held that this activity did not amount to a domestic infringement, which would fall within the reach of the Copyright Act, because an infringement occurs not where the picture is downloaded but rather “where the receiving computer assembles the transmitted information into a complete image that can be perceived.”425 Because the latter act occurred in Scotland, it fell beyond the reach of the Copyright Act. The plaintiff also argued that the defendant violated the Lanham Act by imitating the plaintiff’s trademarks and logos. Under Steele v. Bulova Watch Co.,426 the Lanham Act applies to a foreign conduct that affects the U.S. market. The First Circuit has interpreted Steele as requiring a “substantial effect” on the U.S. market,427 whereas the Ninth Circuit has concluded that “some effect” suffices.428 In this case, the D.C. Circuit held that the plaintiff failed to meet even the Ninth Circuit’s easier test of showing some plausible effect on the U.S. market. The court noted that the foreign restaurant was “quintessentially local,” operating only in one Scottish city, and that neither its products nor its advertisements had “filtered through” to the U.S.429 D.Other Federal Statutes Among other cases that involve the extraterritorial reach of federal statutes, Mamani v. Sánchez Bustamante430 is noteworthy for its extensive discussion of what constitutes an “extrajudicial killing” under the Torture Victim Protection Act (TVPA). Also noteworthy are several cases involving the Maritime Drug Law Enforcement Act (MDLEA),431 and the Death on the High Seas Act (DOHSA).432 VI. Foreign Sovereign Immunity Opati v. Republic of Sudan433 was an action brought against Sudan by the families of the victims of the 1998 bombing of the U.S. Embassies in Kenya and Tanzania, alleging that Sudan had harbored the terrorist group that carried out the attacks. The question was whether the plaintiffs could recover punitive damages. At the time of the bombing, the answer was negative, even though the U.S. State Department had designated Sudan as a state sponsor of terrorism, thus lifting its immunity from tort suits under the Federal Sovereign Immunity Act (FSIA).434 However, in 2008, Congress amended the FSIA and provided that states designated as sponsors of terrorism could be sued for punitive damages. In Opati, the question was whether the 2008 amendment could apply to pre-amendment actions arising from the 1998 bombing. The Supreme Court answered this question in the affirmative, in a unanimous opinion written by Justice Gorsuch. Interestingly, Sudan did not challenge the constitutionality of the amendments, but instead based its arguments on statutory interpretation and the presumption that a statute applies only prospectively unless Congress provides otherwise. However, in the 2004 case Republic of Austria v. Altmann,435 the Supreme Court limited the application of that presumption in FSIA cases, reasoning that foreign sovereign immunity is a gesture of grace and comity and, therefore, it may be withdrawn retroactively without the same risk to due process and equal protection principles that other forms of backward-looking legislation can pose. In any event, the Opati Court reasoned, the presumption of prospectivity could not help Sudan because Congress was “as clear as it could have been when it authorized plaintiffs to seek and win punitive damages for past conduct.”436 The Court acknowledged that punitive damages are “a form of punishment” and that “applying new punishments to completed conduct can raise serious constitutional questions.”437 However, the Court concluded, when Congress “clearly authorizes retroactive punitive damages in a manner a litigant thinks unconstitutional, the better course is for the litigant to challenge the law’s constitutionality, not ask a court to ignore the law’s manifest direction.”438 VII. Recognition and Enforcement of Judgments A.Sister-State Judgments In Capital Partners Network OT, Inc. v. TNG Contractors, LLC,439 a Tennessee court recognized a New York judgment based on a cognovit note.440 A Tennessee debtor signed the note granting a Florida creditor the right to obtain a judgment against the debtor upon the debtor’s failure to pay the amount specified in the note. The note contained New York forum selection and choice-of-law clauses. When the debtor defaulted, the creditor presented the note to a New York court and obtained a judgment against the debtor.441 The debtor opposed recognition or the judgment in Tennessee, invoking a Tennessee statute that declared void all cognovit notes and judgments based on them.442 The debtor argued that this statute embodied Tennessee’s strong public policy and that this was a permissible defense to the recognition of a sister-state judgment. The court acknowledged that, under the Supreme Court’s decisions in cases like Fauntleroy443 and Baker,444 the Constitution’s Full Faith and Credit Clause does not allow a public policy exception to a state’s obligation to recognize an otherwise valid sister-state judgment. Nevertheless, the court cited dicta from Tennessee cases purporting to allow such an exception, although, as the court conceded, none of those cases actually applied the exception.445 Finally, the court noted that the issue was one of due process rather than full faith and credit, and that, as the Supreme Court stated, “due process rights to notice and hearing prior to a civil judgment are subject to waiver.”446 Consequently, “a cognovit clause is not, per se, violative of Fourteenth Amendment due process,”447 although it may be so in certain circumstances, such as “where the contract is one of adhesion, where there is great disparity in bargaining power, and where the debtor receives nothing for the cognovit provision.”448 Relying on these statements, the Tennessee court concluded that “a foreign money judgment resulting from a cognovit note or clause that was entered into with a knowing, voluntary waiver of the right to notice and an opportunity to be heard must enjoy full faith and credit in Tennessee, in accord with the Constitutional mandate.”449 After noting that the debtor did not raise the due process issue, the court held that the New York judgment was entitled to recognition in Tennessee. In Will Realty, LLC v. Isaacs,450 the Mississippi Supreme Court held that a Kentucky judgment was not enforceable in Mississippi because the judgment creditor sought its recognition after the expiration of Mississippi’s seven-year statute of limitations for the enforcement of judgments. As authority for this holding, the court cited the Supreme Court’s decision in Sun Oil Co. v. Wortman,451 noting that [i]t has long been established that the statute of limitations of a forum state may be applied by the forum state.”452 To be sure, in Sun Oil the question was one of statutes of limitation to causes of action, not judgments. Nevertheless, other Supreme Court decisions, such as Watkins v. Conway453 and McElmoyle v. Cohen454 allow the same result. In McDaniel v. Banes,455 an Arizona court recognized a Colorado judgment long after the expiration of Arizona’s four-year statute of limitations. However, the judgment had been subsequently “corrected” (and thus renewed) by the Colorado court and the Arizona court based its decision on the date of the corrected judgment. The initial Colorado judgment was rendered in 2010 and was amended by the rendering court in 2018 to correct a clerical error in the judgment amount, as allowed by Colorado law. The judgment creditor initiated the recognition proceeding in Arizona in 2019. The court did not mention Colorado’s statute of limitations but, presumably, that statute must have been longer than eight years, or else the Colorado court would not have amended the 2010 judgment. As the Arizona court noted, it is “unlikely that the [Colorado] court would approve the amendment if the resulting amended judgment would be unenforceable [in Colorado].”456 Among other cases involving recognition of sister-state judgments, the following are noteworthy: two cases denying recognition for lack of jurisdiction of the court of origin,457 one case denying recognition on First Amendment grounds,458 and two cases involving registration of sex offenders.459 B.Foreign-Country Judgments The Uniform Foreign-Country Money Judgments Recognition Act of 2005 (UFMJRA) provides for recognition of foreign-country judgments that grant or deny recovery of a sum of money, except “to the extent” that the judgment imposes “a fine or other penalty.”460 The Act contains a “savings clause” stating that the Act “does not prevent the recognition under principles of comity or otherwise” of judgments that fall outside the Act’s scope.461 In other words, the Act sets a floor, not a ceiling. The Act does not define what constitutes a fine or penalty, but two 2020 cases help define what is not.462 The first case, Lathigee v. British Columbia Securities Commission,463 involved disgorgement of ill-gotten profits from a fraudulent scheme. A British Columbia court found that the defendant violated the antifraud provisions of the British Columbia Securities Act and raised twenty-one million Canadian dollars from defrauded Canadian investors. The court issued a disgorgement order for twenty-one million dollars and imposed an administrative penalty of fifteen million dollars. The British Columbia Securities Commission, the plaintiff in the foreign proceeding, sought enforcement of only the disgorgement portion of the judgment in Nevada, where the defendant had moved in the meantime. The Nevada Supreme Court held that the disgorgement order was enforceable, after rejecting the defendant’s argument that it was a penalty. The court noted that twenty-one million dollars was the exact amount the defendant obtained from the investors he defrauded and that, under the judgment and the statute on which it was based, that amount—unlike the fifteen-million-dollar penalty—was to be returned to the defrauded investors. Thus, the disgorgement award was restitutional or “‘remedial in nature with its benefits accruing to private individuals,’ not penal, ‘punishing an offense against public justice.’”464 The court also held in the alternative that, even if the disgorgement order were penal, it would still be enforceable under principles of comity. The court pointed to the cooperative relationship between Canada and the United States, particularly in combating fraud in the securities markets, “since the proximity and relations of the two countries make it easy for fraud to move between them.”465 The court also noted that Canadian courts have repeatedly enforced U.S. disgorgement judgments and that a memorandum of understanding between the two countries provided that their “[a]uthorities will provide the fullest mutual assistance” “to facilitate the performance of securities market oversight functions and the conduct of investigations, litigation or prosecution.”466 The second case, State of Netherlands v. MD Helicopters Inc.,467 involved a contractual penalty. A supply contract between an Arizona helicopter manufacturer and the Dutch National Police contained a “penalty clause” providing that, if the manufacturer did not deliver the ordered helicopters on time, the manufacturer would pay to the buyer a certain amount per day up to a maximum of ten percent of the total price. The clause also provided that the National Police reserved the right to seek a higher amount to the extent its actual losses exceeded ten percent of the price. Following the manufacturer’s failure to deliver the helicopters on time, a Dutch court rendered a judgment ordering the manufacturer to pay nearly six million euros under the ten percent penalty clause. The judgment also noted that the actual losses of the National Police could be higher and that follow-up proceedings to determine the actual amount were warranted. The Dutch Government, as assignee of the judgment, sought its enforcement in Arizona. Arizona adopted the Uniform Act of 2005 verbatim, except that (1) it added a section requiring reciprocity, and (2) it omitted the section containing the aforementioned “savings clause.” The reciprocity section provides that Arizona courts may not recognize a foreign-country judgment unless the country of origin has “‘enacted or adopted a reciprocal law related to foreign-country money judgments that is similar to [Arizona’s Act].’”468 The defendant argued that the words “enacted” and “law” referred to a legislative Act and, since the Netherlands did not enact a statute on recognition of foreign judgments, the Dutch judgment did not meet the reciprocity requirement. The court rejected the argument, reasoning that the word “law” includes judge-made law and that the verb “adopted” when juxtaposed with “enacted” confirms that interpretation. The court then provided an extensive description of Dutch case law that showed that Dutch courts have developed a foreign judgment recognition regime that was similar to Arizona’s, and that Dutch courts “routinely” recognize American judgments. The defendant argued that, because the Netherlands is a civil law jurisdiction, judicial decisions do not have the binding authority of precedent as in common law jurisdictions. The court responded by saying that, although the Dutch case law might change in the future, the case law of today allows recognition of American judgments and thus satisfies the reciprocity requirement. The court then rejected the defendant’s argument that the judgment was not enforceable because it imposed a penalty. The court reasoned that, instead of relying on “labels,” such as the word “penalty” in the contract or in the Dutch Civil Code article that authorizes such a “penalty,” one should look at the substance of the judgment and ask whether its purpose is to vindicate a private right or instead to redress and punish a wrong on behalf of the community. In this case, the Dutch judgment was clearly and solely intended to compensate the buyer for the losses caused by the seller’s delays. The fact that the buyer was a governmental entity was immaterial because it acted as a private person when it entered into the contract. The defendant argued that the penalty was penal because, under Dutch law, its purpose is “to coerce a party into performing its obligations, and need not be tethered to the actual harm suffered by the non-breaching party.”469 Even so, the court responded, the judgment “vindicated the National Police’s private interest in ensuring compliance with the terms of the supply contract.”470 Consequently, the judgment was remedial because it “provide[d] a ‘private remedy to a person injured’ by the violation of a contractual provision, not a punishment for ‘an offense against the public justice’ of the Netherlands.”471 In recent years, New York’s intermediate court have clarified that jurisdiction over the judgment debtor or the debtor’s assets is a prerequisite to entertaining an action to recognize a foreign country judgment—at least when the debtor has a “colorable” and “nonfrivolous” defense to recognition.472 In 2020, two cases dismissed a recognition proceeding on this ground. In Akhmedova v. Akhmedov,473 the debtor’s defense against an English judgment was laughable. He complained that “his attorney was compelled to respond to plaintiff’s subpoena and to testify in the proceedings.”474In Korean Deposit Insurance Corp. v. Jung,475 the judgment debtor had a non-frivolous defense while the judgment creditor was unable to show that New York had jurisdiction. His argument was that the debtor had previously lived in New York and owned a Manhattan apartment but, several months before the recognition action, he obtained a fraudulent divorce, conveyed the apartment to his ex-wife, and moved to Canada. The court found that the debtor “has not established that the transfer of the Manhattan apartment was fraudulent—much less that the underlying divorce action in which that transfer occurred was a sham.”476 Footnotes 1 The previous thirty-three Surveys are, in chronological order: 1987: P. John Kozyris, 36 Am. J. Comp. L. 547 (1988); 1988: Symeon C. Symeonides, 37 Am. J. Comp. L. 457 (1989); 1989: P. John Kozyris & Symeon C. Symeonides, 38 Am. J. Comp. L. 601 (1990); 1990: Larry Kramer, 39 Am. J. Comp. L. 465 (1991); 1991: Michael E. Solimine, 40 Am. J. Comp. L. 951 (1992); 1992: Patrick J. Borchers, 42 Am. J. Comp. L. 125 (1994); 1993: Symeon C. Symeonides, 42 Am. J. Comp. L. 599 (1994); 1994: Symeon C. Symeonides, 43 Am. J. Comp. L. 1 (1995); (9) 1995: Symeon C. Symeonides, 44 Am. J. Comp. L. 181 (1996); 1996: Symeon C. Symeonides, 45 Am. J. Comp. L. 447 (1997); 1997: Symeon C. Symeonides, 46 Am. J. Comp. L 233 (1998); 1998: Symeon C. Symeonides, 47 Am. J. Comp. L. 327 (1999); 1999: Symeon C. Symeonides, 48 Am. J. Comp. L. 143 (2000); 2000: Symeon C. Symeonides, 49 Am. J. Comp. L. 1 (2001); 2001: Symeon C. Symeonides, 50 Am. J. Comp. L. 1 (2002); 2002: Symeon C. Symeonides, 51 Am. J. Comp. L. 1 (2003); 2003: Symeon C. Symeonides, 52 Am. J. Comp. L. 9 (2004); 2004: Symeon C. Symeonides, 52 Am. J. Comp. L. 919 (2004); 2005: Symeon C. Symeonides, 53 Am. J. Comp. L. 559 (2005); 2006: Symeon C. Symeonides, 54 Am. J. Comp. L. 697 (2006); 2007: Symeon C. Symeonides, 56 Am. J. Comp. L. 243 (2008); 2008: Symeon C. Symeonides, 57 Am. J. Comp. L. 269; (23) 2009: Symeon C. Symeonides, 58 Am. J. Comp. L. 227 (2010); 2010: Symeon C. Symeonides, 59 Am. J. Comp. L. 303 (2011); 2011: Symeon C. Symeonides, 60 Am. J. Comp. L. 291 (2012); 2012: Symeon C. Symeonides, 61 Am. J. Comp. L. 217 (2013); 2013: Symeon C. Symeonides, 62 Am. J. Comp. L. 223 (2014); 2014: Symeon C. Symeonides, 63 Am. J. Comp. L. 299 (2015); 2015: Symeon C. Symeonides, 64 Am. J. Comp. L. 221 (2016); 2016: Symeon C. Symeonides, 65 Am. J. Comp. L. 1 (2017); 2017: Symeon C. Symeonides, 66 Am. J. Comp. L. 1 (2018); 2018: Symeon C. Symeonides, 67 Am. J. Comp. L. 1 (2019); 2019: Symeon C. Symeonides, 68 Am. J. Comp. L. 235 (2020); Hereinafter, these Surveys are referred to only by the author’s name and the survey year. 2 This Survey does not reflect the views of the Association of American Law Schools or its Section on Conflict of Laws. 3 Because a sizable portion of the readership consists of foreign scholars, some of whom may be less familiar with certain aspects of American law, this Survey attempts to provide background information and explanations that normally would be unnecessary for the core readership of American conflicts scholars. 4 This number includes all decisions of the federal district courts and specialized lower federal courts, as well as a very small number of state trial court decisions posted on Westlaw. The Survey does not cover these cases. The total number also includes “vertical conflicts” between federal and state law. 5 The last twenty of those surveys (for the years 2000–2019) are now published by Brill-Nijhoff Publishers in 1−3 Symeon C. Symeonides, Choice of Law in Practice: A Twenty-Year Report from the Trenches (2020). 6 The chosen authors are Professors John F. Coyle, William S. Dodge, and Aaron D. Simowitz. 7 As Table 1 indicates, during the thirty-four-year period of the survey, the Supreme Court has issued as few as six and as many as twenty decisions annually regarding conflicts law matters. 8 These cases were identified with a Westlaw search conducted on February 1, 2020, with the following query “advanced: (170BVI 360I(B) “choice #of law” “conflict #of law” “what law governs” “lex loci” “lex locus” “most significant relationship” “lex rei” extraterritorial, extraterritoriality, territoriality, dépeçage, renvoi “foreign law” “forum selection” “choice #of forum” “alien tort statute” “torture victim protection act” “foreign sovereign immunities act” “Convention #on the Recognition #and Enforcement #of Foreign Arbitral Awards” “New York Convention” “Uniform Foreign-Country Money Judgments Recognition Act” “Uniform Enforcement #of Foreign Judgments Act” “foreign judgment”) & DA(year).” 9 The number of cases reached its highest point in 2009 (7,205 cases), and thereafter began to decline. There is no clear explanation for the decline, but according to federal judiciary statistics, a similar decline has occurred in the number of the overall federal court cases. See Statistical Tables for the Federal Judiciary—December 2018, U.S. Courts,www.uscourts.gov/statistics-reports/statistical-tables-federal-judiciary-december-2018 (last updated Dec. 31, 2018). 10 In most years, approximately one-third of all cases and the majority of U.S. Supreme Court cases involved vertical conflicts. The survey discussed very few of those cases and only when they involved both vertical and horizontal conflicts. 11 These cases have been identified with the same Westlaw query and search conducted on the same date—February 1, 2010, except for 2019 and 2020, for which the search was conducted on January 1, 2021. Because of the date of this search, these numbers differ from the numbers reported in the surveys of individual years. 12 The states that report some decisions of first-instance courts are Connecticut, Delaware, Massachusetts, New York, and Pennsylvania. 13 According to the Statistical Tables for the Federal Judiciary, federal district courts rendered 347,713 decisions in 2017 and 339,786 decisions in 2018. See Statistical Tables for the Federal Judiciary—December 2018, supra note 9. The conflicts cases in those two years totaled 4,666 and 4,451, respectively. 14 According to the Statistical Tables for the Federal Judiciary, federal appellate courts rendered 59,040 decisions in 2017 and 51,832 decisions in 2018. See Statistical Tables for the Federal Judiciary—December 2018, supra note 9. The conflicts cases in those two years totaled 526 and 548, respectively. 15 See, e.g., 149 Cong. Rec. 25,496 (2003) (statement of Sen. Chambliss), www.c-spanarchives.org/congress/?q=node/7753i&id=I05531 (“Right now, magnet State courts are trampling over the laws of other States in their zeal to certify nationwide class actions and help enrich, frankly, the plaintiffs’ trial bar. The Class Action Fairness Act . . . [will help] ensure that magnet State court judges stop dictating national policies from their local courthouse steps.”); Christopher Guadagnino, Malpractice Awards Surge in Pa., Physician’s News Digest (Jan. 2001), www.physiciansnews.com/cover/ioi.html (“Philadelphia judges ‘bend over backward’ for injured parties, allowing cases to proceed even without adequate plaintiff experts and long after filing deadlines have passed, says Paul Siegel. M.D., president of the Philadelphia County Medical Society.”). 16 562 N.W.2d 466 (Mich. 1997). 17 Id. at 469 (internal quotation marks omitted). 18 Id. at 469–70 (internal quotation marks omitted). 19 Id. at 470. 20 SeeSymeon C. Symeonides, The American Choice-of-Law Revolution: Past, Present, and Future 265–64 (2006); Symeon C. Symeonides, Choice of Law for Products Liability: The 1990s and Beyond, 78 Tul. L. Rev. 1247 (2004). 21 It is possible that including cases decided since 2005 could change the above percentages. However, it is unlikely that the change would be significant enough to reverse the above conclusions, nor would it restore the assumptions that the above findings dispel. 22 See Symeon C. Symeonides, Choice of Law in Cross-Border Torts: Why Plaintiffs Win, and Should, 61 Hastings L.J. 337 (2009). 23 SeeSymeon C. Symeonides, Choice of Law: Oxford Commentaries on American Law 194–200, 203 (2016); Peter Hay, Patrick Borchers, Symeon Symeonides & Christopher A. Whytock, Conflict of Laws 794–99 (6th ed. 2018). 24 SeeSymeonides, supra note 23, at 204–18; Hay, Borchers, Symeonides & Whytock, supra note 23, at 808–30. 25 Larry Kramer, Choice of Law in the American Courts in 1990: Trends and Developments, 39 Am. J. Comp. L. 465, 466 (1991). 26 Russell J. Weintraub, Courts Flailing in the Waters of the Louisiana Conflicts Code: Not Waving but Drowning, 60 La. L. Rev. 1365, 1366 (2000). 27 For a sampling of these assessments, see Symeonides,supra note 5, at 17–18. 28 See supra notes 13–14. 29 See Russell J. Weintraub, The Restatement Third of Conflict of Laws: An Idea Whose Time Has Not Come, 75 Ind. L.J. 679, 680 (2000) (“[A]ll courts, but especially state courts, encounter choice-of-law problems haphazardly at infrequent intervals. Changes 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 quite right.”); Arthur T. von Mehren, Recent Trend 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.”). 30 Russell J. Weintraub, Commentary on the Conflict of Laws 347 (4th ed. 2001). 31 Louise Weinberg, Theory Wars in the Conflict of Laws, 103 Mich. L. Rev. 1631, 1648 (2005) (reviewing Symeon C. Symeonides, The American Choice-of-Law Revolution in the Courts: Today and Tomorrow (2003)) (emphasis omitted). 32 Id. 33 Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 460−61 (1897). 34 For tabular presentation, documentation, and discussion of these patterns, see Symeonides, supra note 23, at 177–272. 35 See, e.g., Stewart E. Sterk, The Marginal Relevance of Choice of Law Theory, 142 U. Pa. L. Rev. 949, 951 (1994); Symeonides, supra note 23, at 150. 36 Joseph W. Singer, Surveying Choice of Law: A Foreword to Twenty Years of Choice-of-Law Surveys by Symeon C. Symeonides, in Symeonides,supra note 5, at xv, xxiv. 37 Restatement (Third) of Conflict of Laws, at xxx (Am. L. Inst., Preliminary Draft No. 2, 2016). See also the discussion of the Restatement (Third) Preliminary Draft No. 2 in Symeon C. Symeonides, The Third Conflicts Restatement’s First Draft on Tort Conflicts, 92 Tul. L. Rev. 1 (2017). 38 Joanna B. Apolinsky & Jeffrey A. Van Detta, The Antebellum Irony of Georgia’s Disguised Lex Fori Doctrine: O Where Have You Gone, Brainerd Currie?, 50 Cumberland L. Rev. 149, 162 (2020). 39 The other eight states are Alabama, Florida, Kansas, Maryland, New Mexico, South Carolina, Virginia, and West Virginia. SeeSymeonides, supra note 5, at 23–24. 40 In Nationwide Property & Casualty Insurance Co. v. Renaissance Bliss, LLC, 823 Fed. App’x 815 (11th Cir. 2020) (decided under Georgia conflicts law), an insurance contract case, the Eleventh Circuit applied this exception to California, which was not formed out of the original thirteen colonies. When the insured objected, the court ruled the objection untimely. See id. at 823 n.3. But the court did note that (a) in a 1941 case, the Georgia Supreme Court applied this exception to Florida, which was not formed out of the original thirteen colonies, and (b) in a 2017 case (Coon, infra note 41), the same court declined to address this issue. 41 797 S.E.2d 828 (Ga. 2017). 42 See Symeonides, 2017 Survey, supra note 1, at 23–24. 43 Apolinsky & Van Detta, supra note 38, at 188 (quoting Justice Potter Stewart in Griswold v. Connecticut, 381 U.S. 479, 527 (Stewart, J., dissenting)). 44 Id. at 160. 45 Id. at 182. 46 Gary J. Simpson, An Essay on Illusion and Reality in the Conflict of Laws, 70 Mercer L. Rev. 819, 821, 825, 825, 838 (2019). 47 Id. at 838, 859. 48 For extensive documentation, see Apolinsky & Van Detta, supra note 38, at 160–81. 49 478 S.E.2d 123, 124 (Ga. 1996), discussed in Symeonides, 1996 Survey, supra note 1, at 453–55. 50 Id. at 124. For a similar case reaching the same result under the same reasoning, see Bailey v. Cottrell, Inc., 721 S.E.2d 571 (Ga. Ct. App. 2011). 51 710 S.E.2d 888 (Ga. Ct. App. 2011). 52 Id. at 891. 53 Loucks v. Standard Oil Co., 120 N.E. 198, 102 (N.Y. 1918). According to Cardozo’s classic standard, the public policy exception should be used only in “exceptional circumstances” when the foreign law “violate[s] some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.” Id. 54 For example, in Carroll Fulmer, both the tortfeasor and the victim were Georgia domiciliaries and the conflict involved only the type of recoverable damages. In Alexander, the victim was a Georgia domiciliary who was injured while using a product he had purchased in Georgia. 55 See, e.g., Dowis v. Mud Slingers, 621 S.E.2d 413 (Ga. 2005), discussed inSymeonides,supra note 5, at 494–96. The Dowis court praised the lex loci rule as an island of “stability and certainty,” endowed with the “virtues of consistency, predictability, and relative ease of application” (id. at 416), which “can serve the ends of justice because it furnishes the judicial machinery by which like situations are adjudged equally” (id. at 419). Because of these virtues, the court reasoned, the lex loci rule was “preferable to the inconsistency and capriciousness that the replacement choice-of-law approaches have wrought.” Having followed this rule “for nearly 100 years,” the court concluded that “stare decisis is a valid and compelling argument for maintaining [it]” (id. at 416). 56 Id. at 416. 57 Apolinsky & Van Detta, supra note 38, at 160. 58 848 S.E.2d 876 (Ga. 2020). 59 Id. at 880. 60 See Forbes v. Auld, 830 S.E.2d 770 (Ga. Ct. App. 2019), discussed inSymeonides,supra note 5, at 1796–97. 61 Auld, 848 S.E.2d at 880. 62 Id. at 881. 63 See id. at 880 (“[W]hen the applicable foreign law creates a cause of action that is not recognized in the common law and includes a specific limitation period, that limitation period is a substantive provision of the foreign law that governs, and it applies when it is shorter than the period provided for under Georgia law. There is no common law right to file a claim for wrongful death; the claim is entirely a statutory creation. . . . Belize’s Law of Torts Act creates a cause of action for wrongful deaths occurring in Belize and imposes a one-year limitation period in which to bring such claims. Accordingly, the doctrine of lex loci delicti requires application of Belize’s substantive limitation period.” (citations and quotation marks omitted)). As a former British colony (British Honduras), Belize is a common law jurisdiction. 64 Unlike the Wisconsin and Illinois wrongful death statutes involved in Hughes v. Fetter, 341 U.S. 609 (1951), and the Belize statute in this case, all of which provided an action for deaths occurring “in this State,” the Georgia statute did not contain this wording. 65 43 Ga. 461 (1871). 66 Id. at 463. 67 SeeSymeonides, supra note 23, at 194–96; Hay, Borchers, Symeonides & Whytock, supra note 23, at 794–95, 798. 68 See supra note 55. 69 838 S.E.2d 334 (N.C. 2020). 70 Id. at 343. 71 Id. at 344. 72 Id. 73 Id. (quoting Boudreau v. Baughman, 368 S.E.2d 849, 854 (N.C. 1988)). 74 N.C. Gen. Stat. § 66-152. 75 SciGrip Inc., 838 S.E.2d at 345. 76 960 F.3d 549 (9th Cir. 2020) (decided under California conflicts law). 77 Id. at 555 (quoting the Japanese Act on Compensation for Nuclear Damage, Law No. 147 of 1961). 78 Id. at 558. 79 Id. at 561 (quoting from a California case). 80 Id. at 562. The court pointed to Offshore Rental Co. v. Continental Oil Co., 583 P.2d 721 (Cal. 1978), and McCann v. Foster Wheeler LLC, 225 P.3d 516 (Cal. 2010), discussed inSymeonides,supra note 5, at 916–21. 81 Cooper, 960 F.3d at 563. Late in the proceedings, the plaintiffs argued that their injuries did not occur in Japan but instead occurred on “U.S. soil,” i.e., on U.S. warships. The court held that the plaintiffs forfeited this argument. 82 Id. 83 Id. 84 Id. at 564. 85 Id. 86 Id. at 565. 87 Id. 88 Id. at 565 n.11. 89 See Cooper v. Tokyo Elec. Power Co., Inc., 860 F.3d 1193 (9th Cir. 2017), discussed in Symeonides,supra note 5, at 1564–65. 90 Cooper, 960 F.3d at 567. 91 957 F.3d 98 (1st Cir. 2020). 92 No. A155026, 2020 WL 5904359 (Cal. Ct. App. Oct. 6, 2020) (unpublished). 93 Id. at *8. 94 Id. at *4 (internal quotation marks omitted). 95 Id. (internal quotation marks omitted). 96 Id. at *7. 97 608 S.W.3d 109 (Tex. Ct. App. 2020). 98 Neither party argued for the application of Missouri law. 99 Tex. Civ. Prac. & Rem. § 71.031(a)(2). 100 Id. § 71.031(b). 101 Id. § 71.031(c). 102 Restatement (Second) of Conflict of Laws § 6 (Am. L. Inst. 1971). 103 Stevenson, 608 S.W.3d at 123. 104 Id. at 120. 105 Id. at 125. 106 Id. at 128. 107 Id. 108 811 Fed. App’x 772 (3d Cir. 2020) (decided under Pennsylvania conflicts law). 109 These rationales include the lack of control over a product after it leaves the manufacturer’s hands, the difficulty in presenting evidence regarding the design process long after the design occurred, and the inappropriateness of applying current standards to products manufactured many years earlier. 110 Alley, 811 Fed. App’x at 774. 111 Id. 112 Id. 113 Id. at 775. 114 241 A.3d 1212 (Pa. Super. Ct. 2020). 115 Id. at 1219 (quoting 42 Pa. Stat. and Cons. Stat. Ann. § 5521). 116 Id. at 1221 (internal quotation marks omitted). 117 Id. at 1221–22. 118 826 Fed. App’x 496 (6th Cir. 2020) (decided under Tennessee conflicts law). 119 Id. at 500. 120 Restatement (Second) of Conflict of Laws § 145 (Am. L. Inst. 1971). 121 Id. § 6. 122 Burns, 826 Fed. App’x at 501. 123 476 P.3d 422 (Mont. 2020). 124 Id. at 424. 125 Id. at 425 (quoting Restatement (Second) § 146 cmt. e). 126 Id. at 427. 127 Id. 128 See id. at 429 (McKinnon, J., dissenting) (“Operators and owners of North Dakota well sites cannot possibly . . . comply with the laws of all 50 states and foreign countries, depending on the citizenship or domiciliary [sic] of any worker who has entered into contracts to perform work on the well site. The Court does not address the inconsistencies and uncertainties which will inevitably occur when Montana law, North Dakota law, and other forums’ laws are applied to the same workers, injured by the same negligent conduct, at the same worksite, in the same state.”). 129 See id. at 431 (“The Legislative Assembly of North Dakota has specifically declared that the development and production of oil and gas is in the public interest.”). 130 No. 19–920, 2020 WL 7384019 (La. Ct. App. Dec. 16, 2020). 131 824 Fed. App’x 407 (6th Cir. 2020) (decided under Michigan conflicts law). 132 Sutherland v. Kennington Truck Serv., Ltd., 562 N.W.2d 466, 471 (Mich. 1997), discussed in Symeonides, 1997 Survey, supra note 1, at 240–44. 133 Yarber, 824 Fed. App’x at 410. 134 Id. at 411. 135 Id. (internal quotation marks omitted). 136 846 S.E.2d 679 (N.C. 2020). 137 Id. at 682. 138 Id. at 684. 139 608 S.W.3d 650 (Mo. Ct. App. 2020). 140 139 S. Ct. 1485 (U.S. 2019), discussed in Symeonides, supra note 5, at 1753–55. 141 829 Fed. App’x 432 (11th Cir. 2020) (decided under Florida conflicts law). 142 The plaintiff first sued in federal court in Florida, but voluntarily dismissed that action when that court ordered a transfer to a federal court in Georgia. He then refiled in Florida state court. The defendant removed the case to a Florida federal court, which then transferred the case to a Georgia federal court. Under established precedents, the transferee court applied the choice-of-law rules of the transferor court. 143 Restatement (Second) § 150. 144 Id. cmt. e. 145 Frey, 829 Fed. App’x at 435–36. 146 967 F.3d 27 (1st Cir. 2020) (decided under Massachusetts conflicts law). 147 Id. at 32. 148 Id. 149 962 F.3d 60 (1st Cir. 2020) (decided under Massachusetts conflicts law). 150 The Massachusetts Act provided that courts “will be guided” by the FTC’s and federal courts’ interpretations of the provisions of the FTC Act that also proscribe unfair or deceptive acts or practices. 151 Rome Regulations: Commentary 68 (Cralf-Peter Calliess ed., 2011). 152 Id. at 68–69. 153 Adrian Briggs, Agreements on Choice of Law 395–96 (2008). 154 For a comparative discussion of how foreign codifications and international conventions handle this issue, see Symeon C. Symeonides, The Scope and Limits of Party Autonomy in International Contracts: A Comparative Analysis, in Private International Law: Contemporary Challenges and Continuing Relevance 101, 109–10 (Franco Ferrari & Diego P. Fernández Arroyo eds., 2019). 155 For Louisiana, see La. Civ. Code art. 3539 (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 ‘bootstrapping’ problem is avoided with regard to capacity.”). For Oregon, see Or. Rev. Stat. § 15.330 (subjecting capacity to an autonomous choice-of-law rule). 156 Restatement (Second) of Conflict of Laws § 198 cmt. a (Am. L. Inst. 1971). The Restatement (Second) does not directly 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,” and this includes 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.” 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). Thus, the cross-reference to these two sections in section 198 means that 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. The Restatement comments confirm this reading. 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.” id. § 198 cmt. a (emphasis added). 157 See id. § 187(2)(b). Bootstrapping can occur if: (1) in a contract that would otherwise be governed by the law of State X (lex causae), the parties chose the law of State Y; and (2) State Y confers capacity but State X does not. In such a case, the parties’ capacity will be governed by the law of State Y and the choice-of-law agreement will be valid as to capacity, unless (i) State X has a “materially greater interest” than State Y in applying its law; and (ii) 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. 158 953 F.3d 348 (5th Cir. 2020) (decided under Texas conflicts law). 159 Id. at 351–52 (internal quotation marks omitted). 160 Id. at 352 (internal quotation marks omitted). 161 The Louisiana codification also avoids the problem by providing that “[t]he existence, validity, and effectiveness of a choice-of-law agreement is decided according to the law applicable to the particular issue under Articles 3537–39,” i.e., not under article 3540 which provides for party autonomy. La. Civ. Code art. 3537 cmt. (a). The Oregon codification also exempts 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. See Or. Rev. Stat. § 15.335. 162 Restatement (Second) § 187 cmt. b. 163 No. ED 108409, 2020 WL 6278737 (Mo. Ct. App. Oct. 27, 2020). 164 Id. *4. 165 811 Fed. App’x 244 (5th Cir. 2020) (decided under Texas law). 166 980 F.3d 9 (2d Cir. 2020). 167 The conviction was based on the Racketeer Influenced and Corrupt Organizations Act (RICO), the Truth in Lending Act (TILA), and federal wire fraud and identity theft statutes. 168 For a case invalidating a choice-of-law clause on this ground, see KST Data, Inc. v. DXC Technology Co., No. 19-55422, 2020 WL 6747212 (9th Cir. Nov. 17, 2020) (decided under California conflicts law) (finding that the chosen state did not have a substantial relationship and that there was no reasonable basis for choosing its law). 169 See Moseley, 980 F.3d at 21 (“New York’s . . . legislation of a felony usury offense strikes us as particularly persuasive in demonstrating that the New York legislature considers usury to be a matter of serious public concern.”). 170 Id. (internal quotation marks omitted). 171 See id. at 23 (“The contacts with New York are provided by the New York domiciles of many borrowers and the subject matter of the contract: loans and payments that affected the borrowers individually in New York in a direct way. The loan proceeds were received in New York and repaid from New York.”). 172 Id. at 23–24. 173 967 F.3d 332 (4th Cir. 2020). 174 966 F.3d 286 (4th Cir. 2020). 175 See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n.19 (1985). 176 For another case involving another Indian tribe but almost identical facts and identical outcome, see Williams v. Medley Opportunity Fund II, LP, 965 F.3d 229 (3d Cir. 2020). 177 944 N.W.2d 235 (Minn. 2020). 178 See Symeonides, 2019 Survey, supra note 1, at 282–83. 179 Maslowski v. Prospect Funding Partners LLC, No. A18-1906, 2019 WL 3000747 (Minn. Ct. App. July 8, 2019). Under Minnesota law, champerty is “[a]n agreement between a stranger to a lawsuit and a litigant by which the stranger pursues the litigant[’s] claims as consideration for receiving part of any judgment proceeds.” Maintenance is “[a]ssistance in prosecuting or defending a lawsuit given to a litigant by someone who has no bona fide interest in the case; meddling in someone else’s litigation.” Id. at *3 (internal quotation marks omitted). In this case, the borrower sold to the lender an interest in her personal injury action for six thousand dollars. If she had prevailed in her lawsuit, the borrower would repay this amount at an interest rate of sixty percent, plus a processing fee of $1,425, for a total not to exceed twenty-five thousand dollars. 180 Id. at *4. 181 Id. at *5. 182 Id. at *4. 183 Maslowski, 944 N.W.2d at 241. 184 Id. at 238 (citations and internal quotation marks omitted). 185 The court also noted the rapid growth of the litigation finance market, which is now estimated to be valued at $50 to $100 billion. See id. at 240. 186 Id. at 241. 187 For documentation, see Symeon C. Symeonides, Codifying Choice of Law Around the World 293–99 (2014); Hay, Borchers, Symeonides & Whytock, supra note 23, at 1130–31. 188 Section 6(1) provides that “[a] court . . . will follow a statutory directive of its own state on choice of law,” and only “[w]hen there is no such directive” will the court follow the factors listed in subsection 2 or, for that matter, the rest of the Restatement (Second). Restatement (Second) of Conflict of Laws § 6(1) (Am. L. Inst. 1971). 189 See id. § 187(2)(b). 190 980 F.3d 597 (8th Cir. 2020) (decided under Minnesota conflicts law). 191 The Act prohibits manufacturers from terminating a sales representative agreement without good cause and compliance with other pre-representative provisions. The Act applies to sales representatives who reside in Minnesota, have their primary place of business in Minnesota, or are responsible for a territory that includes all or part of Minnesota. 192 The anti-waiver provision states that a manufacturer may not “circumvent compliance” by including “an application or choice of law of any other state” or “a waiver of any provision” of the Act. Minn. Stat. § 325E.37, subdiv. 7. 193 Engineered Sales, Co., 980 F.3d at 601. A dissenting judge disagreed, finding that the agreement was concluded before the enactment of the anti-waiver provision and was not “renewed” as the majority found. See id. at 602–04 (Smith, C.J., dissenting). 194 840 S.E.2d 765 (Ga. Ct. App. 2020). 195 The case involved an employment contract and contained a Delaware choice-of-law clause. The court did not mention Delaware’s connection. It appears that Georgia had all the relevant contacts. 196 954 F.3d 439 (1st Cir. 2020) (decided under Massachusetts conflicts law). 197 For other 2020 cases involving choice-of-law clauses and noncompete covenants in employment contracts, see, e.g., Realogy Holdings Corporation v. Jongebloed, 957 F.3d 523 (5th Cir. 2020) (decided under Texas conflicts law) (holding that a noncompete covenant in a Texas employment contract that contained a Delaware choice-of-law clause was unenforceable because it violated a fundamental policy of Texas, which had a materially greater interest than Delaware); Down-Lite Int’l, Inc. v. Altbaier, 821 Fed. App’x 553 (2020) (decided under Ohio conflicts law) (holding that a noncompete covenant in an Ohio employment contact that contained an Ohio choice-of-law clause was enforceable because the employee’s new employment state, California, did not have a materially greater interest in applying its law). 198 N.Y. Gen. Oblig. Law § 5-1401(1). 199 See id. § 5-1401(2). 200 See id. § 5-1402. 201 See Cal. Civ. Proc. Code § 410.40; Del. Code Ann. tit. 6, §§ 2708, 735; Fla. Stat. §§ 685.101, .102; Ill. Comp. Stat. §§ 105/5-5, -10; Tex. Bus. & Com. Code Ann. § 271.005. 202 No. 1265, 2020 WL 6624931 (Md. Ct. App. Nov. 12, 2020). 203 Del. Code Ann. tit. 6, § 2708 (emphasis added). 204 801 Fed. App’x 48 (3d Cir. 2020) (decided under Delaware conflicts law). 205 Id. at 49. 206 Id. 207 No. S19C-07-040 CAK, 2020 WL 1866869 (Del. Super. Ct. Apr. 14, 2020). 208 Del. Code Ann. tit. 6, § 2708(c)(2). 209 Economical Steel, 2020 WL 1866869, at *2 (“This case starkly presents the dilemma of enforcing choice of law and forum selection provisions for which the parties bargained, in circumstances where those provisions (1) make little sense and (2) violate due process precepts and ordinary choice of law principles. The former is of no consequence because the parties can agree to what makes little sense. A strong strain of our Delaware law allows independent, sophisticated parties, as are the[se] parties . . . , to have the freedom to agree to a legitimate ordering of their affairs, especially as to resolution of disputes.”). 210 Id. 211 Id. at *3 (footnote omitted). 212 See Cal. Civ. Proc. Code § 410.42. 213 449 U.S. 302 (1981). 214 472 U.S. 797 (1985). 215 Allstate, 449 U.S. at 313 (emphasis added). 216 See Lewis v. Liberty Mutual Ins. Co., 953 F.3d 1160 (9th Cir. 2020) (discussed infra text accompanying note 233). 217 See Color Switch LLC v. Fortafy Games DMCC, 818 Fed. App’x 694 (9th Cir. 2020). 218 See Du Quenoy v. Am. Univ. of Beirut, 828 Fed. App’x 769 (2d Cir. 2020). 219 See Dahman v. Embassy of Qatar, 815 Fed. App’x 554 (D.C. Cir. 2020). 220 See D & S Consulting, Inc. v. Kingdom of Saudi Arabia, 961 F.3d 1209 (D.C. Cir. 2020). 221 See Hay, Borchers, Symeonides & Whytock, supra note 23, at 1080–103; Symeon C. Symeonides, What Law Governs Forum Selection Clauses, 78 La. L. Rev. 1119 (2018), Symeon C. Symeonides, Choice-of-Court Agreements: American Practice in a Comparative Perspective, in U.S. Litigation Today: Still a Threat for European Businesses or Just a Paper Tiger? 85 (A. Bonomi & K.N. Schefer eds., 2018). 222 No. 350279, 2020 WL 6930058 (Mich. Ct. App. Nov. 24, 2020). 223 For other state cases to the same effect, see, e.g., Fortress Inv. Grp., LLC v. Holsinger, 841 S.E.2d 55 (Ga. Ct. App. 2020) (applying Georgia law and holding a New York forum selection clause unenforceable because enforcement of the clause would enable a New York court to apply New York law, under a New York choice-of-law clause in the same contract, and thereby reach a result contrary to Georgia’s public policy on noncompete covenants); Sullivan Corp. v. Rabco Enter., LLC, No. 20A-PL-1444, 2020 WL 7135006 (Ind. Ct. App. Dec. 7, 2020) (applying Indiana law and holding unenforceable a Florida forum selection clause in an Indiana construction clause that also contained a Florida choice-of-law clause); DeSage v. AW Fin. Grp., LLC, 461 P.3d 162 (Nev. 2020) (applying forum law rather than chosen law to interpret an outbound forum selection clause). 224 Barshaw, 2020 WL 6930058, at *3. 225 Id. at *6. 226 Id. at *4. 227 Id. at *6. 228 Id. (quoting Mich. Comp. Laws § 600.745(3)). 229 The clause provided that the contract “shall be governed by . . . the laws of the State of Pennsylvania, and the parties hereby confer jurisdiction upon the courts of any jurisdiction within the State of Pennsylvania . . . .” Id. at *8. The court pointed to the verb “shall” in the choice-of-law clause and the absence of similar mandatory words in the forum selection clause and concluded that there was “nothing in this clause evidencing an intent by the parties to forgo the personal jurisdiction of all forums other than those within the state of Pennsylvania.” Id. 230 979 F.3d 1070 (5th Cir. 2020). 231 Id. at 1073 (internal quotation marks omitted). 232 Id. at 1074. 233 953 F.3d 1160 (9th Cir. 2020). 234 None of the cases involved the issue of enforceability of the forum selection clause. See, e.g., Ecocards v. Tekstir, Inc., 459 P.3d 1111 (Wyo. 2020) (applying California law); Peter Millar, LLC v. Shaw’s Menswear, Inc., No. COA19-1078,2020 WL 7034442 (N.C. Ct. App. Dec. 1, 2020) (applying Georgia law); Fintech Fund, F.L.P. v. Horne, No. 18-20449, 2020 WL 6588619 (5th Cir. Nov. 10, 2020) (Texas forum, applying English law); Kelly v. Riverside Partners, LLC, 964 F.3d 107 (1st Cir. 2020) (Massachusetts forum, applying Delaware law); Elna Sefcovic, LLC v. TEP Rocky Mountain, LLC, 953 F.3d 660 (10th Cir. 2020) (Colorado forum, applying Colorado law, which was chosen in the agreement). 235 225 A.3d 316 (Del. 2020). 236 Id. at 319. 237 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, art. 25(1), 2012 O.J. (L 351) 1 [hereinafter Brussels I Recast] (“Such jurisdiction shall be exclusive unless the parties have agreed otherwise.”). 238 See Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, art. 23, 2007 O.J. (L 339) 3 (“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. 239 See Hague Convention on Choice of Court Agreements, art. 3(b), June 30, 2005, 44 I.L.M. 1294 (“[A] choice of court agreement . . . shall be deemed to be exclusive unless the parties have expressly provided otherwise.”). This convention is in force in the European Union, Mexico, Montenegro, Singapore, and the United Kingdom. 240 Brussels I Recast, supra note 237, art. 25. 241 Germaninvestments, 225 A.3d at 331 (internal quotations omitted). 242 Id. at 328. 243 See id. at 336 (noting that the defendants “supplied only the text of Article 25 of the Brussels Regulation. They cited no cases, commentaries, or other authorities, and proffered no expert testimony.”). By contrast, the plaintiffs proffered extensive expert testimony by Professor Dietmar Czernich. 244 937 N.W.2d 334 (Iowa 2020). 245 388 U.S. 395 (1967). 246 417 U.S. 506 (1974). 247 Id. at 519 n.14 (emphasis added). 248 For a critique, see Symeonides, supra note 23, at 460–62. 249 Karon, 937 N.W.2d at 357 (Appel, J., dissenting). 250 Id. at 346 (majority opinion). 251 Id. 252 Id. at 359 (Appel, J., dissenting). 253 9 U.S.C. § 1. 254 532 U.S. 105 (2001). 255 Id. at 119. 256 966 F.3d 10 (1st Cir. 2020). 257 971 F.3d 904 (9th Cir. 2020). 258 See Waithaka, 966 F.3d at 26 (concluding that “the FAA does not govern this dispute, and it provides no basis for compelling the individual arbitration required by the dispute resolution section [of the contract]”). 259 Id. at 14. 260 Rittmann, 971 F.3d at 919 (internal quotation marks omitted). 261 Id. 262 Id. at 921. 263 233 A.3d 495 (N.J. 2020). 264 Id. at 507. 265 Id. at 506. 266 Id. 507. 267 818 Fed. App’x 608 (9th Cir. 2020). 268 393 P.3d 85 (Cal. 2017). 269 268 Cal. Rptr. 3d 642 (Cal. Ct. App. 2020). 270 No. SC 20282, 2020 WL 5735253 (Conn. Sept. 24, 2020). 271 Id. at *13. 272 Id. 273 The three elements are: (1) the error [is] obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) the arbitration panel appreciate[s] the existence of a clearly governing legal principle but decide[s] to ignore it; and (3) the governing law alleged to have been ignored by the arbitration panel is [well-defined], explicit, and clearly applicable. Id. at *14. 274 232 A.3d 1293 (Del. 2020). 275 No. 20-11420, 2020 WL 7352575 (11th Cir. Dec. 15, 2020). 276 For other cases involving enforcement of arbitration awards, see, e.g., GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637 (2020) (holding that the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not conflict with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories); Pagaduan v. Carnival Corp., 830 Fed. App’x 61 (2d Cir. 2020) (rejecting a public policy challenge against a Filipino award in a maritime employment dispute); OJSC Ukrnafta v. Carpatsky Petrol. Corp., 957 F.3d 487 (5th Cir. 2020) (rejecting a procedural due process challenge against a Swedish award); Savine v. Interactive Brokers, LLC, 799 Fed. App’x 97 (2d Cir. 2020) (jurisdiction to set aside award); EGI-VSR, LLC v. Coderch Mitjans, 963 F.3d 1112 (11th Cir. 2020) (currency conversion); Earth Sci. Tech, Inc. v. Impact UA, Inc., 809 Fed. App’x 600 (11th Cir. 2020) (Panama Convention; arbitrability). 277 Ward v. United Airlines, Inc., 466 P.3d 309, 310–11 (Cal. 2020). 278 466 P.3d 309 (Cal. 2020). 279 Id. 280 Id. 281 Id. 282 Id. at 318–19. 283 Id. at 321. Following Ward, the California Court of Appeals reversed its earlier decision that held that Louisiana rather than California law applied to the wage claims of crewmembers of a vessel that was docked in a California port and serviced oilrigs outside and within California waters. The court had based its decision on the fact that the employer was a Louisiana company and the crewmembers were originally hired for work in the Gulf of Mexico, although the vessel was later moved to California where it remained for six years. Following Ward, the court found that the crew members were “based” in California and thus were entitled to the benefits of California labor laws. See Gulf Offshore Logistics, LLC v. Super. Ct. of Ventura, 58 Cal. App. 5th 264 (Cal. Ct. App. 2020). 284 466 P.3d 325 (Cal. 2020). 285 260 Cal. Rptr. 3d 640 (Cal. Ct. App. 2020), review denied (July 22, 2020). 286 Uniform Conflict of Laws—Limitations Act § 2 (Unif. L. Comm’n 1982) (emphasis added). 287 462 P.3d 263 (Or. 2020). 288 See Or. Rev. Stat. §§ 12.410–12.480. The other six states are Colorado, Minnesota, Montana, Nebraska, North Dakota, and Washington. 289 A contract for an account stated is “an agreement between persons who have had previous transactions of a monetary character fixing the amount due in respect to such transactions and promising payment.” Sanders, 462 P.3d at 265 (internal quotation marks omitted). 290 See Symeonides, supra note 23, at 528–31. 291 See Or. Rev. Stat. §§ 15.300–.380, discussed in James A.R. Nafziger, Oregon’s Conflicts Law Applicable to Contracts, 38 Willamette L. Rev. 397 (2002); Symeon C. Symeonides, Codifying Choice of Law for Contracts: The Oregon Experience, 67 RabelsZ 726 (2003); Symeon C. Symeonides, Oregon’s Choice of Law Codification for Contract Conflicts: An Exegesis, 44 Willamette L. Rev. 205 (2007) [hereinafter Symeonides, Oregon’s Choice of Law Codification for Contract Conflicts]. 292 Sanders, 462 P.3d at 273. 293 Or. Rev. Stat. § 15.360 (emphasis added). 294 Sanders, 462 P.3d at 274 (“[W]hen the laws are not ‘apparently conflicting,’ there is no path to choosing the law of another state.”) 295 Id. at 269 (“ORS 15.360 does not supply a mechanism for Oregon courts to choose the law of another state when there is no apparent conflict with the applicable Oregon law.”). 296 The statute provides as follows: To the extent that an effective choice of law has not been made by the parties . . . , the rights and duties of the parties with regard to an issue in a contract are governed by the law, in light of the multistate elements of the contract, that is the most appropriate for a resolution of that issue. The most appropriate law is determined by: (1) Identifying the states that have a relevant connection with the transaction or the parties, such as the place of negotiation, making, performance or subject matter of the contract, or the domicile, habitual residence or pertinent place of business of a party; (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 international systems; and (b) Facilitating the planning of transactions, protecting a party from undue imposition by another party, giving effect to justified expectations of the parties concerning which state’s law applies to the issue and minimizing adverse effects on strong legal policies of other states. Or. Rev. Stat. § 15.360. 297 Sanders, 462 P.3d at 269 (“Under those circumstances, and if no other statute provides a path to choose the state on whose law the claim is substantively based, we conclude that the common-law principle described in Erwin fills the gap.”); id. at 274 (“We, thus, conclude that the common-law path to resolving such cases is one that the legislature did not replace.”). 298 The court stated that it was “reluctant to chart th[is] path away from statutes that appear to have been intended as a comprehensive framework for resolving conflicts disputes,” and emphasized that “courts should hesitate to resort to conflicts decisions that predate the [statute].” The court continued: “First, the text of ORS 15.305 suggests that the legislature intended the [the statute] to comprehensively resolve ‘all’ conflicts regarding contract claims. Second, the legislative history is also clear that the new statutory framework was drafted to ‘largely replace’ the case law for resolving choice-of-law issues in contract claims.” The court then cited to the testimony of this author, on behalf of the Oregon Law Commission, before the Oregon Senate Judiciary Committee. Sanders, 462 P.3d at 273–74. 299 506 P.2d 494 (Or. 1973). 300 Sanders, 462 P.3d at 274 (quoting Erwin, 506 P.2d). 301 Id. at 274–75 (quoting the Uniform Act). 302 See supra note 296. 303 See Symeonides, Oregon’s Choice of Law Codification for Contract Conflicts, supra note 291, at 1019–20. 304 Sanders, 462 P.3d at 273 (quoting Erwin, 506 P.2d at 495). 305 Erwin, 506 P.2d at 497. 306 Portfolio Recovery, LLC v. Sanders, 425 P.3d 455 (Or. Ct. App. 2018), discussed in Symeonides, supra note 5, at 1699–700. 307 296 So.3d 1047 (La. 2020). 308 La. Civ. Code art. 3549(B). For a discussion of this article by its drafter, see Symeon C. Symeonides, Louisiana Conflicts Law: Two “Surprises,” 54 La. L. Rev. 497 (1994). 309 Id. at 1048 (quoting La. Civ. Code art. 3549 cmt. (f)). 310 Id. 311 Id. at 1049. 312 Id. 313 See Symeonides, supra note 23, at 547. The other seven states are Arizona, Florida, Idaho, Iowa, New Jersey, Ohio, and West Virginia. 314 Restatement (Second) of Conflict of Laws § 142 (Am. L. Inst. Supp. 1989). 315 151 N.E.3d 464 (Mass. App. Ct. 2020). 316 Id. at 468. 317 Id. at 469. 318 Id. For additional cases involving statutes of limitations, see the section on products liability, supra Part II.B.2. 319 “We apologize in advance for the excitement generated by our framing of the issues presented here.” Flexi-Van Leasing, Inc. v. Travelers Indemnity Company, No. 19-1847, 2020 WL 6866643, at *1 (4th Cir. Nov. 23, 2020). 320 449 U.S. 302 (1981). 321 No. WD 83564, 2020 WL 7214154 (Mo. Ct. App. Dec. 8, 2020). 322 Id. at *2 (emphasis added). 323 840 S.E.2d 692 (Ga. Ct. App. 2020). 324 Id. at 695. 325 No. 2019-CA-000846-MR, 2020 WL 5083448 (Ky. Ct. App. Aug. 28, 2020). 326 No. C-200032, 2020 WL 6580168 (Ohio Ct. App. Nov. 10, 2020). 327 Id. at *1 (internal quotation marks omitted). For other cases involving automobile insurance conflicts, see, e.g., N.C. Farm Bur. Mut. Ins. Co. v. Lunsford, 843 S.E.2d 677 (N.C. Ct. App. 2020) (Alabama accident involving insurances policies issued to two sisters domiciled in North Carolina and Tennessee and traveling in the same car); Botlagudur v. Botlagudur, No. A-1312-18T3, 2020 WL 5587689 (N.J. Super. Ct. App. Div. Sept. 18, 2020) (intrafamily exclusion clause in Florida policy of car involved in a New Jersey accident). 328 948 F.3d 289 (5th Cir. 2020) (decided under Texas law). 329 Id. at 300. 330 Id. See also id. (“[W]here the harms have been remedied, a state has little interest in whether any settlements or judgments are paid by [the insured], or instead, by its insurers, or in regulating the scope of a pollution exclusion clause contained in an insurance policy issued in [a different state]” (brackets in original, quotation marks omitted)). 331 Id. 332 Id. (brackets in original, quotation marks omitted). 333 Id. 334 For other insurance conflicts, see, e.g., Textron Inc. v. Travelers Cas. & Surety Co., 259 Cal. Rptr. 3d 26 (Cal. Ct. App. 2020) (insurance coverage for mesothelioma caused by insured’s asbestos products; conflict between California’s “continuous trigger” rule and Rhode Island’s “manifestation trigger”); Nationwide Prop. & Cas. Ins. Co. v. Renaissance Bliss, LLC, 823 Fed. App’x 815 (11th Cir. 2020) (decided under Georgia conflicts law; conflict between California’s notice-prejudice rule and Georgia’s opposite rule that allowed insurer to deny coverage because of the insured’s delayed notice of damage). 335 288 So.3d 774 (Fla. Dist. Ct. App. 2020). 336 Id. at 776. 337 Id. 338 See id. at 780 (“The Philippine . . . requirement that the parties’ marriage was invalid because of the technical failure of [wife] to acquire a judicial decree that the illegal [1989] marriage was, in fact, illegal, conflicts with Florida policy on this point.”). 339 No. 744, 2020 WL 5797869 (Md. Ct. App. Sept. 29, 2020). 340 Id. at *4. 341 Id. at *5. The wife was not a member of the Orthodox Church. 342 Id. (quotation marks and brackets omitted). 343 226 A.3d 797 (Md. Ct. App. 2020). 344 Under Islamic law, the husband has a virtual automatic right to talaq, i.e., to divorce his wife by stating “I divorce thee” three times before witnesses. The wife has a right to talaq only if it is written in the marriage agreement or if the husband otherwise grants her that right. Otherwise, the wife may obtain a divorce only with her husband’s consent or for cause from an Islamic judge. 345 848 S.E.2d 920 (Ga. Ct. App. 2020). 346 For other cases involving marital property conflicts, see, e.g., Smith v. Smith, 473 P.3d 837 (Idaho 2020) (holding that an Idaho court that had in personam jurisdiction over both spouses could determine their respective rights in a Utah immovable and could order the husband to transfer half of its value to the wife); United States v. Berry, 951 F.3d 632 (5th Cir. 2020) (holding that the husband’s retirement account was community property under Texas law and was subject to garnishment under the federal Mandatory Victims Restitution Act in satisfaction of a judgment rendered against the wife who was convicted of a crime); Stacy v. Stacy, 144 N.E.3d 899 (Mass. App. Ct. 2020) (holding that a federal statute governing non-assignability and exempt status of veterans’ disability benefits preempted state marital property division laws from treating veteran’s disability payments as marital property subject to equitable distribution). 347 See De Carvalho v. Carvalho Pereira, No. 1D20-523, 2020 WL 6706877 (Fla. Dist. Ct. App. Nov. 16, 2020); Cook v. Arimitsu, No. A19-1235, 2020 WL 1983223 (Minn. Ct. App. Apr. 27, 2020); Rizvi v. Dep’t of Soc. Servs., 828 Fed. App’x 818 (3d Cir. 2020). 348 See In re Teagan K.-O., No. SC 20245, 2020 WL 3456223 (Conn. June 24, 2020). 349 See Matter of Henson, 464 P.3d 963 (Kan. Ct. App. 2020); In re Marriage of Sawyer, 271 Cal. Rptr. 3d 627 (Cal. Ct. App. 2020). 350 See In re J.W.B., 232 A.3d 689 (Pa. 2020); Matter of Adoption of B.B., 469 P.3d 1093 (Utah 2020). 351 See In re Estate of Brown, 846 S.E.2d 342 (S.C. 2020); In re Estate of McHugo, 237 A.3d 1239 (Vt. 2020). 352 See Barnet v. Ministry of Culture & Sports of the Hellenic Rep., 961 F.3d 193 (2d Cir. 2020); Cassirer v. Thyssen-Bornemisza Collection Found., 824 Fed. App’x 452 (9th Cir. 2020). 353 See Germaninvestments AG v. Allomet Corp., 225 A.3d 316 (Del. 2020); Joyce v. Joyce, 941 N.W.2d 546 (N.D. 2020); Derbez v. Derbez, 602 S.W.3d 706 (Tex. Ct. App. 2020); Fraccionadora y Urbanizadora de Juarez, S.A. de C.V. v. Delgado, No. 08-16-00046-CV, 2020 WL 6196059 (Tex. Ct. App. Oct. 22, 2020); Cincinnati Ins. Co. v. Shuster, No. 834, 2020 WL 4597155 (Md. Ct. App. Aug. 11, 2020); In re Chinese-Manufactured Drywall Prods. Liab. Litig., 811 Fed. App’x 910 (5th Cir. 2020); Bugliotti v. Republic of Argentina, 952 F.3d 410 (2d Cir. 2020); Chavarria v. Intergro, Inc., 815 Fed. App’x 375 (11th Cir. 2020); Mireskandari v. Gallagher, No. D076130, 2020 WL 7767612 (Cal. Ct. App. Dec. 30, 2020). 354 See Deep Photonics Corp. v. LaChapelle, 466 P.3d 660 (Or. Ct. App. 2020). 355 See Freedman v. magicJack Vocaltec Ltd., 963 F.3d 1125 (11th Cir. 2020); McElroy v. FirstEnergy Corp., 824 Fed. App’x 97 (3d Cir. 2020); Brenon v. Asbestos Corp., 188 A.D.3d (N.Y. App. Div. 2020). 356 See Commonwealth v. Britton, 229 A.3d 590 (Pa. 2020); Commonwealth v. Peck, No. 75 MAP 2019, 2020 WL 7577621 (Pa. Dec. 22, 2020); Banks v. Opat, 814 Fed. App’x 325 (10th Cir. 2020); Thompson v. Platt, 815 Fed. App’x 227 (10th Cir. 2020). 357 See Mangouras v. Squire Patton Boggs, 980 F.3d 88 (2d Cir. 2020). 358 See Oneida Indian Nation v. Phillips, 981 F.3d 157 (2d Cir. 2020). 359 See United States v. Abouselman, 976 F.3d 1146 (10th Cir. 2020). 360 956 F.3d 863 (6th Cir. 2020), reh’g en banc denied (May 26, 2020), cert. filed (July 17, 2020). 361 Id. at 869. 362 Section 2 of the Amendment bars “[t]he transportation or importation into any State . . . for delivery or use therein of intoxicating liquors, in violation of the laws thereof.” U.S. Const. amend. XXI, § 2. 363 Lebamoff, 956 F.3d at 873. 364 Id. at 869 (citations and quotation marks omitted). 365 Id. at 871 (quotation marks omitted). 366 Id. at 872. 367 Id. 368 Id. 369 Id. at 874. 370 Id. at 873. 371 See id. at 875 (citing Crowley v. Christensen, 137 U.S. 86, 91 (1890)). 372 Id. at 876. 373 460 P.3d 764 (Cal. 2020). 374 See Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638. 375 Id. art. 1 (emphasis added). 376 486 U.S. 694 (1988). 377 See id. at 700 (“The Convention does not prescribe a standard, so we almost necessarily must refer to the internal law of the forum state. If the internal law of the forum state defines the applicable method of serving process as requiring the transmittal of documents abroad, then the Hague Service Convention applies.”). 378 See id. at 707–08 (concluding that, because under Illinois law “this case does not present an occasion to transmit a judicial document for service abroad within the meaning of Article 1[,] . . . . the Hague Service Convention does not apply.”). 379 Rockefeller, 460 P.3d at 767 (quoting the agreement). 380 Id. at 769 (first emphasis added, second emphasis by the court). 381 Id. 382 Id. at 771. 383 Id. at 776 (internal quotation marks omitted). 384 140 S. Ct. 735 (2020). 385 See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). In Swartz v. Rodriguez, 140 S. Ct. 1258 (2020), the Court vacated Rodriguez v. Swartz, 899 F.3d 719 (9th Cir. 2018), a case discussed in the 2018 Survey, in which the Ninth Circuit granted a Bivens action to the parents of another Mexican boy killed under more egregious circumstances by a Customs patrol officer shooting from the U.S. side of the border. 386 28 U.S.C. § 2680(k). 387 Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2750 (2004) (emphasis added). But see Hernández, 140 S. Ct. at 759 (Ginsburg, J., dissenting) (noting that the reason for this exclusion was Congress’s unwillingness to subject the United States to foreign law and that this reason was inapplicable in Hernández, which did not involve foreign law). 388 Hernández, 140 S. Ct. at 756 (Ginsburg, J., dissenting). 389 Id. at 760. 390 137 S. Ct. 1843 (2017). 391 Id. at 1855. 392 Id. at 1857–59. 393 Hernández, 140 S. Ct. at 743. 394 Id. at 744. 395 Id. 396 Id. 397 Id. at 745. 398 Id. at 746. 399 Id. 400 Id. at 749. The Court also referred to the Torture Victim Protection Act (TVPA), which provides an action for extrajudicial killing carried out by a person who acted under the authority of a foreign state. See id. 401 Id. at 747 (quoting Kiobel v. Royal Dutch Petrol. Co., 569 U.S. 108, 116 (2013)). 402 Id. at 750 (citations and internal quotation marks omitted). 403 Id. at 756 (Ginsburg, J., dissenting). 404 Id. 405 Id. at 757 (quoting Restatement (Second) of Conflict of Laws § 145 cmt. e (Am. L. Inst. 1971)). 406 Id. at 756. 407 See id. at 758 (“I do not grasp how allowing a Bivens action here would intrude upon the political branches’ national-security prerogatives.”). 408 See id. at 759 (“Quite the opposite. Withholding a Bivens suit here threatens to exacerbate bilateral relations.”). 409 See id. 410 140 S. Ct. 2082 (2020). 411 22 U.S.C. § 7631(f). 412 See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013). 413 In Al Hela v. Trump, 972 F.3d 120 (D.C. Cir. 2020), the D.C. Circuit held that procedural and substantive due process protections do not extend to noncitizen detainees at Guantanamo Bay, Cuba. 414 18 U.S.C. § 1343. 415 972 F.3d 1138 (9th Cir. 2020). 416 959 F.3d 442 (1st Cir. 2020). 417 136 S. Ct. 2090 (2016), discussed in Symeonides, supra note 5, at 1464–66. 418 Hussain, 972 F.3d at 1143 (internal quotation marks omitted). 419 963 F.3d 163 (2d Cir. 2020). 420 18 U.S.C. § 1346. 421 Napout, 963 F.3d at 185. 422 948 F.3d 356 (D.C. Cir. 2020). 423 See id. at 358 (“On its face, § 1114 does not speak to extraterritorial application one way or the other, thus leaving the presumption against extraterritoriality unrebutted.”). 424 965 F.3d 871 (D.C. Cir. 2020), reh’g en banc denied (Aug. 31, 2020). 425 Id. (internal quotations omitted). 426 344 U.S. 280 (1952). 427 McBee v. Delica Co., 417 F.3d 107, 120 (1st Cir. 2005). 428 Trader Joe’s Co. v. Hallatt, 835 F.3d 960, 969 (9th Cir. 2016), discussed in Symeonides, supra note 5, at 1472–73. 429 IMAPizza, 965 F.3d at 880. 430 968 F.3d 1216 (11th Cir. 2020). 431 See United States v. Alarcon Sanchez, 972 F.3d 156 (2d Cir 2020); United States v. Davila-Mendoza, 972 F.3d 1264 (11th Cir. 2020); United States v. Cabezas-Montano, 949 F.3d 567 (11th Cir. 2020); United States v. Francisco, 823 Fed. App’x 854 (11th Cir. 2020); United States v. Napa Moreira, 810 Fed. App’x 702 (11th Cir. 2020). 432 See LaCourse v. PAE Worldwide Inc., 980 F.3d 1350 (11th Cir. 2020). 433 140 S. Ct. 1601 (2020). 434 The State Department placed Sudan on the list of states sponsoring terrorism in 1993. On December 21, 2020, the Department removed Sudan from the list and Sudan agreed to establish diplomatic relations with Israel. 435 541 U.S. 677 (2004), discussed in Symeonides, supra note 5, at 388–90. 436 Opati, 140 S. Ct. at 1608. 437 Id. at 1609. 438 Id. at 1610. Most of the other appellate cases decided in 2020 involved the commercial activity exception of the FSIA. For cases holding that the exception was applicable, see, e.g., Pablo Star Ltd. v. Welsh Government, 961 F.3d 555 (2d Cir. 2020); Hosn v. Iraq Ministry of Transport, 11 Fed. App’x 949 (6th Cir. 2020); TIG Ins. Co. v. Republic of Argentina; 967 F.3d 778 (D.C. Cir. 2020) (exception potentially applicable). For cases holding that the exception was inapplicable, see, e.g., Valambhia v. United Republic of Tanzania, 964 F.3d 1135 (D.C. Cir. 2020); R&R Int’l Consulting LLC v. Banco do Brasil, S.A., 981 F.3d 1239 (11th Cir. 2020); Barnet v. Ministry of Culture & Sports of the Hellenic Rep., 961 F.3d 193 (2d Cir. 2020); Baiul-Farina v. Lemire, 804 Fed. App’x 533 (9th Cir. 2020); Sequeira v. Republic of Nicaragua, 815 Fed. App’x 345 (11th Cir. 2020); Everard Findlay Consulting, LLC v. Republic of Suriname, 831 Fed. App’x 599 (Mem) (2d Cir. 2020). For cases involving both the commercial activity and another exception, see Broidy Capital Mgmt., LLC v. State of Qatar, 982 F.3d 582 (9th Cir. 2020) (tortious activity exception); Rukoro v. Federal Republic of Germany, 976 F.3d 218 (2020) (expropriation exception). For cases involving other exceptions or issues, see Eisenberg v. Permanent Mission of Equatorial Guinea to the U.N., No. 19-2685, 2020 WL 6141004 (2d Cir. Oct. 20, 2020) (U.S. immovable property exception); Jacubovich v. State of Israel, 816 Fed. App’x 505 (2d Cir. 2020) (finding no waiver); Process & Indus. Devs. Ltd. v. Federal Republic of Nigeria, 962 F.3d 576 (D.C. Cir. 2020) (arbitral award); Fontana v. Republic of Argentina, 962 F.3d 667 (2d Cir. 2020) (attorney’s fees). 439 No. M2020-00371-COA-R3-CV, 2020 WL 6708232 (Tenn. Ct. App. Nov. 16, 2020). 440 For the foreign readers, a cognovit note is a document by which one party to a commercial contract consents in advance to a judgment to be obtained by the other party upon the happening of a certain event, i.e., a breach of the agreement, and waives the right to notice or a hearing and all defenses, except payment. 441 The debtor appeared through counsel who unsuccessfully challenged the validity of the note. 442 See Tenn. Code § 25-2-101(a) (“Any power of attorney or authority to confess judgment which is given before an action is instituted and before the service of process in such action, is declared void; and any judgment based on such power of attorney or authority is likewise declared void.”). 443 See Fauntleroy v. Lum, 210 U.S. 230 (1908). 444 See Baker by Thomas v. Gen. Motors Corp., 522 U.S. 222 (1998). 445 See Capital Partners, 2020 WL 6708232, at *6 (“[O]our research has yielded no cases in which either this Court or the Tennessee Supreme Court has denied full faith and credit to a money judgment issued by a sister state.”). 446 D.H. Overmyer Co. of Ohio v. Frick Co., 405 U.S. 174, 185 (1972). 447 Id. at 187. 448 Id. at 188. 449 Capital Partners, 2020 WL 6708232, at *8. 450 296 So.3d 80 (Miss. 2020). 451 486 U.S. 717 (1988). 452 Will Realty, 296 So.3d at 82. 453 385 U.S. 188 (1966). 454 38 U.S. 312 (1839). 455 471 P.3d 1032 (Ariz. Ct. App. 2020). 456 Id. at 1036. 457 See Gem City Bone & Joint, P.C. v. Meister, 947 N.W.2d 302 (Neb. 2020) (denying recognition to a Wyoming judgment against an individual defendant over whom Wyoming did not have jurisdiction, although it did have jurisdiction over the defendant’s corporation); Nat’l Record Retrieval v. Clark Law Firm, PC, No. A-3346-18T4, 2020 WL 1082429 (N.J. Super. Ct. App. Div. Mar. 6, 2020) (denying recognition to an Indiana default judgment for lack of jurisdiction). 458 See In re Hailey, 2020 V.I. 14 (2020) (denying recognition to a North Carolina judgment imposing civil liability on a Virgin Island domiciliary who had sued a North Carolina domiciliary in a Virgin Island Small Claims Court, in which defendants are not allowed to be represented by an attorney; reasoning that the North Carolina judgment had violated the Virgin Island domiciliary’s rights under the Petition Clause of the First Amendment). 459 See Hixson v. Missouri State Highway Patrol, 611 S.W.3d 923 (Mo. Ct. App. 2020) (requiring a person convicted of a sexual offense in Illinois to continue to be registered as a sex offender in Missouri, although Illinois no longer required registration in its records); In re Commitment of K.H., 609 S.W.3d 247 (Tex. Ct. App. 2020) (finding that the defendant’s Oregon conviction for sexual abuse in the third degree was substantially similar to the Texas offense of indecency with a child for determining whether the defendant was a repeat sexual offender under Texas law). 460 UFMJRA § 3(b) (Unif. L. Comm’n 2005). 461 Id. § 11. 462 In a third case, Rozumiei v. Uhnyuk, 848 S.E.2d 314 (N.C. Ct. App. 2020), a North Carolina court summarily rejected the defendant’s argument that an English judgment awarding costs and fees was excessive and therefore amounted to a penalty. 463 No. 78833, 2020 WL 7290639 (Nev. Dec. 10, 2020). 464 Id. at *4 (quoting the comments of the UFMJRA). 465 Id. at *5. 466 Id. 467 462 P.3d 1038 (Ariz. Ct. App. 2020). 468 Id. at 1044 (quoting Ariz. Rev. Stat. § 12-3252(B)(2)). 469 Id. at 1050. 470 Id. 471 Id. (quoting Huntington v. Attrill, 146 U.S. 657, 673–74 (1892)). The court also rejected the defendant’s argument that the amount of the penalty exceeded the plaintiff’s actual losses. 472 See AlbaniaBEG Ambient Sh.p.k. v. Enel S.p.A., 160 A.D.3d 93, 73 N.Y.S.3d 1 (N.Y. App. Div. 2018), discussed in Symeonides, supra note 5, at 1736–40. 473 No. 2020-01660, 2020 WL 7502507 (N.Y. App. Div. Dec. 22, 2020). 474 Id. at *1. 475 No. 654301/2019, 2020 WL 7220478 (N.Y. Sup.Ct. Dec. 4, 2020). 476 Id. at *3. Author notes Dean Emeritus & Alex L. Parks Distinguished Chair in Law, Willamette University College of Law; LL.B. (Priv. L.), LL.B. (Publ. L.), LL.M., S.J.D., Ph.D.h.c., LL.D.h.c.mult., M.A.E. © The Author(s) [2021]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, pleasee-mail: journals.permissions@oup.com. 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TI - Choice of Law in the American Courts in 2020: Thirty-Fourth Annual Survey
JF - American Journal of Comparative Law
DO - 10.1093/ajcl/avab002
DA - 2021-08-19
UR - https://www.deepdyve.com/lp/oxford-university-press/choice-of-law-in-the-american-courts-in-2020-thirty-fourth-annual-ajYdyLwSSo
SP - 1
EP - 1
VL - Advance Article
IS - 
DP - DeepDyve
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