TY - JOUR
AU - Symeonides, Symeon C
AB - Table of Contents Introduction.......................................... 3 I. Jurisdiction.......................................... 5   A. The Supreme Court Speaks (Again).......................................... 5   B. Foreign Sovereign Immunity .......................................... 10     1. The Terrorism Exception .......................................... 10     2. The Noncommercial Tort Exception .......................................... 11     3. The Expropriation Exception .......................................... 12   C. Jurisdiction over Nonrecognized States .......................................... 14   D. The Fukushima Nuclear Accident .......................................... 15   E. The Political Question Doctrine .......................................... 16 II. Extraterritoriality (or Non) of Federal Law .......................................... 17   A. Fifth Amendment .......................................... 17   B. Alien Tort Statute and Human Trafficking .......................................... 20   C. Civil RICO and Domestic Injuries .......................................... 22 III. Choice of Law .......................................... 23   A. Torts . .......................................... 23     1. Georgia’s Peculiar Lex Loci Rule .......................................... 23     2. Intrafamily Immunity and Families in Transit .......................................... 24     3. Vicarious Liability .......................................... 26     4. Distribution of Wrongful Death Proceeds .......................................... 28     5. Hospital Liens .......................................... 28     6. Medical Malpractice and State Immunity .......................................... 29     7. Federal Tort Claims Act and United States Immunity .......................................... 30     8. Defamation .......................................... 32     9. Extraterritoriality (or Non) of State Statutes .......................................... 33     10. Air Travel, a Needlestick, and the    Montreal Convention .......................................... 35   B. Products Liability .......................................... 37     1. Introduction .......................................... 37     2. Cases Applying the Pro-defendant Law of a Plaintiff-Affiliated State .......................................... 37     3. Other Cases Applying a Pro-defendant Law .......................................... 40     4. Cases Applying a Pro-plaintiff Law .......................................... 42   C. Contracts .......................................... 45     1. Choice-of-Law Clauses and Jury Waivers .......................................... 45     2. Choice-of-Law Clauses and Trusts .......................................... 47     3. Choice-of-Law Clauses and Old-Style   Ordre Public .......................................... 48     4. Separability(?) of Choice-of-Law Clauses .......................................... 50     5. Scope of the Choice-of-Law Clause .......................................... 51     6. Choice-of-Law and Forum Selection Clauses .......................................... 52     7. Choice-of-Law and Arbitration Clauses .......................................... 55     8. Insurance Contracts .......................................... 56   D. Choice-of-Law Methodology .......................................... 59     1. Vacillation in Wyoming .......................................... 59     2. The Methodological Table .......................................... 61   E. Statutes of Limitations .......................................... 61     1. New Jersey’s New Switch .......................................... 61     2. Summary of State Practices .......................................... 67     3. Choice-of-Law Clauses and Statutes   of Limitations .......................................... 68 F . Recovering Nazi-Looted Artwork .......................................... 69 G . Marriage and Divorce .......................................... 72 H . Marital Property .......................................... 76 IV. Foreign Judgments and Awards .......................................... 79   A. Sister-State Judgments .......................................... 79     1. Land in Another State .......................................... 79     2. Due Process .......................................... 80     3. Statutes of Limitations .......................................... 80   B. Foreign-Country Judgments .......................................... 81     1. Paternity and Public Policy .......................................... 81     2. Child Custody and Human Rights .......................................... 82     3. Child Support .......................................... 83     4. Procedural Due Process .......................................... 83     5. Service of Process .......................................... 84     6. Jurisdiction in the State of Origin .......................................... 85     7. Judgment “Contrary” to Arbitration Agreement .......................................... 85     8. Statute of Limitations .......................................... 86   C. Foreign Arbitration Awards .......................................... 86 Introduction This is the Thirty-First Annual Survey of American Choice-of-Law Cases.1 It is written at the request of the Association of American Law Schools 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 the United States.3 Its purpose remains the same as it has been from the beginning: to inform, rather than to advocate. Occasionally, however, small amounts of criticism escape the author’s self-censoring filters. This Survey covers cases decided by American state and federal appellate courts during 2017, and posted on Westlaw by the end of the year. Of the 1,455 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—and particularly choice of law. The total number of conflicts cases decided in 2017 and posted on Westlaw by December 31, 2017, was 5,382.4ŠTable 1, below, breaks them down into categories. More than seventy percent of these cases have been decided by federal district courts and are not covered by this Survey. Table 1. Conflicts Cases, 2017. U.S. Supreme Court  11  Appellate cases covered: 1,455  Federal Courts of Appeals  488  State supreme and intermediate courts  956  Federal district and other federal lower courts  3,927  Not covered  All cases  5,376    U.S. Supreme Court  11  Appellate cases covered: 1,455  Federal Courts of Appeals  488  State supreme and intermediate courts  956  Federal district and other federal lower courts  3,927  Not covered  All cases  5,376    View Large Table 1. Conflicts Cases, 2017. U.S. Supreme Court  11  Appellate cases covered: 1,455  Federal Courts of Appeals  488  State supreme and intermediate courts  956  Federal district and other federal lower courts  3,927  Not covered  All cases  5,376    U.S. Supreme Court  11  Appellate cases covered: 1,455  Federal Courts of Appeals  488  State supreme and intermediate courts  956  Federal district and other federal lower courts  3,927  Not covered  All cases  5,376    View Large It is worth noting that, in 1987, when the first of these Surveys was published, the total number of conflicts cases was 2,245. In the intervening thirty years, this number has grown by an average annual rate of 4.7%, for a total increase of 140%. See Chart 1. Chart 1. View largeDownload slide Conflicts Cases, 1987, 2017. Chart 1. View largeDownload slide Conflicts Cases, 1987, 2017. In 1987, seventeen states were still following the traditional theory in tort conflicts and twenty-four in contract conflicts. In 2017, these numbers stand at nine and eleven, respectively. See Chart 2. Chart 2. View largeDownload slide The Revolution Then and Now. Chart 2. View largeDownload slide The Revolution Then and Now. In previous years, the Introduction provided a list of the year’s highlights. This time, there is simply too much to highlight, and any attempt to summarize will be under-inclusive. This is just another way of saying that 2017 has been a year full of dense and significant developments, beginning with two U.S. Supreme Court decisions further tightening the parameters for general and specific jurisdiction. Suffice it to say, this year the Survey covers all three branches of conflicts law—jurisdiction, choice of law, and recognition and enforcement of foreign judgments—although the focus remains on choice of law. The table of contents, above, offers a detailed indication of this year’s coverage. I. Jurisdiction A. The Supreme Court Speaks (Again) This Survey does not usually cover jurisdiction, at least not directly, except in years the Supreme Court speaks on the matter. After more than two decades of silence,5 the Court spoke in 2011 and 2014, deciding two cases on general jurisdiction (Goodyear6 and Daimler7) and two cases on specific jurisdiction (McIntyre8 and Walden9). All four cases effected a considerable constriction of the parameters of jurisdiction, giving defendants (particularly corporations) many reasons to cheer. This trend continued in 2017, with two cases: BNSF Railway, Co. v. Tyrrell,10 on general jurisdiction, and Bristol-Myers Squibb, Co. v. Superior Court of California,11 on specific jurisdiction. At best, the Court preempted the plaintiffs’ attempts to fully utilize the constricted jurisdictional parameters; at worst, it has narrowed them even further. BNSF involved two unrelated tort actions filed in Montana against BNSF, a Delaware railroad corporation that had its principal place of business in Texas. In the first action, the plaintiff was a North Dakota employee of BSNF who was injured in Washington. In the second action, the plaintiff was the wife of a South Dakota employee who had died, allegedly because of exposure to carcinogenic substances while working for BSNF. Montana did not have specific jurisdiction because the victims’ injuries did not occur in that state. However, the Montana Supreme Court held that Montana had general jurisdiction because section 56 of the Federal Employers’ Liability Act (FELA) provides that an injured employee of a railway company may sue the company in the district in which the company is “doing business.”12 The United States Supreme Court reversed. The Court held that, under established precedent involving other federal statutes, section 56 was merely a venue provision rather than a provision authorizing personal jurisdiction. However, instead of remanding the case to the state court, the Supreme Court kept it and held that Montana did not have general jurisdiction. Under Goodyear and Daimler, a state can assert general jurisdiction over a corporate defendant if the defendant is “at home” there, for example, if it was incorporated in that state or had its principal place of business there. Clearly, BNSF did not qualify on this basis. However, in both Goodyear and Daimler, the Court left open the possibility that, in “exceptional cases,” a corporation may be subject to general jurisdiction in another state if its operations there are “so substantial and of such a nature as to render the corporation at home in that State.”13 Neither Goodyear nor Daimler qualified as “exceptional cases” because the defendants were foreign corporations that had very limited and indirect contacts with the forum state. The BNSF case was different, not only because the defendant was an American corporation, but also because its operations in Montana were permanent and continuous and its contacts were direct and significant. BNSF had 2,061 miles of railroad tracks and 2,100 employees in Montana, shipped almost 50 million tons of goods in a single year from there, collected millions of dollars in revenue, and had recently invested almost $500 million in that state. Could these contacts suffice to make this an “exceptional case”? Normally, the answer should be yes, unless one chooses to look at these contacts as percentages of the defendant’s total contacts with all other states. This is precisely what the Court chose to do, as it previously did in Daimler, reiterating that “the general jurisdiction inquiry does not focus solely on the magnitude of the defendant’s in-state contacts” but rather “calls for an appraisal of a corporation’s activities in their entirety.”14 In this case, BNSF’s 2,061 miles of railroad tracks in Montana represented only “about 6% of its total track mileage of 32,500,” and its 2,100 Montana employees represented “less than 5% of its total work force of 43,000,” and so forth.15 Viewed from that angle, these were small percentages, inevitably leading to the conclusion that BNSF was not “so heavily engaged in activity in Montana ‘as to render [it] essentially at home’ in that State.”16 Thus, the “exceptional cases” promised in Daimler remained a classroom hypothetical in BNSF. As Justice Sotomayor noted in her partial and lone dissent, the Court paid “lipservice” to the possibility of an “exceptional case,” essentially “read[ing] the exception out of existence entirely,” indeed rejecting it “out of hand.”17 After BNSF, it is “virtually inconceivable” that corporations “will ever be subject to general jurisdiction in any location other than their principal places of business or of incorporation,” and foreign corporations in particular “may never be subject to general jurisdiction [anywhere] in this country.”18 Less than three weeks after BNSF, the Court released its decision in Bristol-Myers,19 a specific jurisdiction case. In this case, a group of eighty-six California plaintiffs and 592 non-California plaintiffs sued Bristol-Myers Squibb (BMS) in California state court.20 The plaintiffs alleged that they suffered injuries from using Plavix, a prescription drug that BMS manufactured in New Jersey and sold in all states. Incorporated in Delaware and headquartered in New York, BMS was not “at home” in California, and thus California did not have general jurisdiction over it. California did have specific jurisdiction with regard to the claims of the 86 California plaintiffs because those claims arose out of BMS’s contacts with California, such as selling Plavix there. The question was whether California also had specific jurisdiction with regard to the claims of the 592 non-Californians who bought and used Plavix in other states and suffered their injuries outside California. The California Supreme Court answered this question in the affirmative. The court compared California’s contacts with the defendant, on the one hand, and California’s contacts with the claims of the non-California plaintiffs, on the other. Using a “sliding scale,” the court reasoned that when the former contacts are numerous and wide ranging, California has jurisdiction even if the latter contacts alone would not otherwise be sufficient. The court concluded that this case fit those parameters because: (1) the defendant had extensive California contacts, including the location of five research facilities, the hiring of a California distributor and 250 sales representatives, and the sale of more than 180 million Plavix pills, generating receipts of more than $900 million; and (2) although the claims of the non-California plaintiffs did not arise from the defendant’s activities in California, they were virtually identical to the claims of the California plaintiffs, which arose from that activity. The United States Supreme Court reversed. The Court emphasized repeatedly that for specific jurisdiction, “‘the suit’ must ‘aris[e] out of or relat[e] to the defendant’s contacts with the forum,’”21 that there must be an “affiliation between the forum and the underlying controversy”22 and “a connection between the forum and the specific claims at issue.”23 “When there is no such connection,” said the Court, “specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State.”24 This was exactly such a case, the Court concluded: “The relevant plaintiffs are not California residents and do not claim to have suffered harm in that State. In addition, . . . all the conduct giving rise to the nonresidents’ claims occurred elsewhere. It follows that the California courts cannot claim specific jurisdiction.”25 Responding to the plaintiffs’ “parade of horribles” argument, the Court explained that its decision was not as harsh as it appeared because it did “not prevent the California and out-of-state plaintiffs from joining together in a consolidated action in the States that have general jurisdiction over BMS,”26 in this case New York and Delaware. Indeed, one of the unintended (or perhaps intended) consequences of the Supreme Court’s recent jurisdictional engineering is to move from the Delawarization of corporations to the Delawarization of litigation of claims against corporations, and to turn the Delaware Supreme Court into a national high court. It is of course true that the plaintiffs could also sue in their home states (assuming purposeful availment), but what they cannot do is file a nationwide class action in that state. As Justice Sotomayor noted in her dissent, the Court’s decision “will make it difficult to aggregate the claims of plaintiffs across the country whose claims may be worth little alone . . . [and] will make it impossible to bring a nationwide mass action in state court against defendants who are ‘at home’ in different States.”27 In policy terms, the net effect is “to curtail—and in some cases eliminate—plaintiffs’ ability to hold corporations fully accountable for their nationwide conduct.”28 Each one and all together, the six Supreme Court cases of the last six years have curtailed the plaintiffs’ latitude in choosing a forum. But this does not mean that, before the six cases, American jurisdiction law was perfect. Reform was necessary, and the “doing business” basis of general jurisdiction was the right place from which to begin. This is why Goodyear had very few critics. However, the Court’s understanding of “exceptional cases” in BNSF suggests that the Court overcorrected what needed correcting. Secondly, one would expect that, after tightening general jurisdiction, the Court would take another, more lenient look at specific jurisdiction. In truth, Bristol-Myers was not a good case for such a reexamination because it was an attempt by the plaintiffs to game the system.29 However, cases like McIntyre v. Nicastro cry out for reform. In much of the rest of the world In much of the rest of the world, the state of injury has specific jurisdiction regardless of any other factors, such as foreseeability. American law will never go as far, nor should it. Objective foreseeability is a necessary safeguard, especially in a system that looks at jurisdiction from the perspective of the defendant’s due process rights. But if that is a given, as it should be, do defendants need more protection?30 B. Foreign Sovereign Immunity 1. The Terrorism Exception Owens v. Republic of Sudan31 is the culmination, so far, of fifteen years of litigation arising out of the 1998 bombings of the U.S. embassies in Kenya and Tanzania. The plaintiffs were the family members of Americans killed in the attacks and a few that survived. They sued the Republic of Sudan under the state sponsor-of-terrorism exception to the Foreign Sovereign Immunities Act (FSIA). Initially enacted in 199632 and amended in 2008,33 this exception withdrew the immunity of foreign states designated by the State Department as sponsors of terrorism, and provided a private cause of action for damages, including punitive damages, to American victims of terrorism or foreigners working for the U.S. Government.34 In a seventy-five-page opinion, the D.C. Circuit provided the most extensive analysis of the antiterrorism exception. The opinion is too long to be summarized here, but three of the court’s conclusions can be mentioned succinctly. First, as used in the exception, the term “extrajudicial killing” derives its meaning not from international law (specifically, the Geneva Conventions), as Sudan argued, but rather from U.S. federal law, including the Torture Victim Protection Act of 1991 (TVPA), which the exception cross-references. Second, the part of the exception that imposes punitive damages, which was enacted after the embassy bombings, could not be applied retroactively against Sudan. The court reversed the award of $4.3 billion in punitive damages, but let stand the award of $7.3 billion in compensatory damages. Third, the question of whether family members of the victims who were not present at the scene of the bombings could recover for intentional infliction of emotional distress is governed by state law, in this case, D.C. law. Because D.C. law was unclear on this point, the court certified this question to the D.C. Court of Appeals. Schermerhorn v. State of Israel35 also involved the terrorism exception. The plaintiffs were U.S. citizens sailing aboard a U.S. flag vessel in international waters off the coast of Israel. They were part of the “Gaza Freedom Flotilla” aimed to draw attention to Israel’s blockade of the Gaza Strip in 2010. Israeli Defense Forces boarded the vessel and detained the plaintiffs. Of course, Israel is not on the list of the states that the United States designates as sponsors of terrorism, but the plaintiffs argued that a phraseological change in the 2008 amendment allowed jurisdiction over Israel without such designation. The pre-2008 exception provided that the court “shall decline to hear a claim . . . if the foreign state was not designated as a state sponsor of terrorism,” whereas the 2008 text provided that the court “shall hear a claim . . . if . . . the foreign state was designated as a state sponsor of terrorism.”36 The plaintiffs argued that the change from the double negative to the affirmative left room for asserting jurisdiction over a state accused of committing terrorist acts even if it is not on the list of states sponsors of terrorism. The court found the argument “intriguing” but rejected it as incorrect and ultimately “implausible,”37 especially in light of its “breathtaking”38 ramifications. 2. The Noncommercial Tort Exception The Schermerhorn plaintiffs also sued Israel under the “noncommercial tort” exception of the FSIA. This exception confers jurisdiction against a foreign state for certain torts “occurring in the United States and caused by the tortious act or omission of that foreign state . . . .”39 For FSIA purposes, the “‘United States’ includes all territory and waters, continental or insular, subject to the jurisdiction of the United States.”40 The plaintiffs argued that the word “includes” (as opposed to “means”) makes the definition illustrative rather than exhaustive, and that a ship flying the U.S. flag is part of the United States. The court acknowledged that several cases contain statements to that effect, but noted that none of them were FSIA cases. By contrast, FSIA cases have held that the term “high seas” and the U.S. embassy in Teheran were not part of the United States, thus confirming that the spirit of the FSIA required a restrictive interpretation. The court rejected the plaintiffs’ argument and affirmed the dismissal of the action. Doe v. Federal Democratic Republic of Ethiopia41 also involved the noncommercial tort exception. The plaintiff, an Ethiopian expatriate living in the United States, sued Ethiopia, alleging that Ethiopian agents tricked him into downloading a program on his computer (a FinSpy virus), which enabled Ethiopia to spy on him from abroad. The court dismissed the action on the ground that the “entire tort” did not occur in the United States. The FSIA phrase “occurring in the United States,” said the court, “is no mere surplusage. The entire tort—including not only the injury but also the act precipitating that injury—must occur in the United States.”42 In this case, “Ethiopia’s placement of the FinSpy virus on [plaintiff’s] computer, although completed in the United States when [plaintiff] opened the infected e-mail attachment, began outside the United States. It thus cannot be said that the entire tort occurred in the United States.”43 3. The Expropriation Exception Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling, Co.44 involved the expropriation exception to the FSIA. This exception applies to “any case . . . in which rights in property taken in violation of international law are in issue and that property . . . is owned or operated by an agency or instrumentality of the foreign state . . . engaged in a commercial activity in the United States.”45 The plaintiffs were a wholly owned Venezuelan subsidiary of an American company and the parent company itself. They sued Venezuela claiming that it unlawfully expropriated the subsidiary’s oilrigs. The district court held that: (1) the subsidiary’s claims did not fall within the expropriation exception because international law does not cover the expropriation of property belonging to a country’s nationals; and (2) the parent’s claims fell within the exception, rejecting Venezuela’s contention that the parent had no property rights in the rigs. The Court of Appeals reversed in part and affirmed in part, finding that both claims fell within the exception. With respect to the subsidiary’s claim, the court concluded that expropriation against a domestic company may violate international law if it unreasonably discriminates based on the nationality of a company’s shareholders. With respect to the parent company’s claims, the court held that the exception applied because the company had raised a “non-frivolous” argument that the expropriation violated international law. The Supreme Court vacated the decision and remanded the case. The Court held that a case falls within the scope of the expropriation exception only if the court finds that “the property in which the party claims to hold rights was indeed ‘property taken in violation of international law.’”46 “Put differently, the relevant factual allegations must make out a legally valid claim that . . . the relevant property was taken . . . in violation of international law. A good argument to that effect is not sufficient.”47 Ordinarily, the court should make that determination “[a]t the threshold” of the action,”48 although it “normally need not resolve, as a jurisdictional matter, disputes about whether a party actually held rights in that property.”49 A “nonfrivolous-argument” standard (“limited only by the bounds of a lawyer’s (nonfrivolous) imagination”50) in applying the exception would undermine the FSIA’s objectives as reflected in its language, history, and structure. It would “embroil the foreign sovereign in an American lawsuit for an increased period of time . . . [and] would create increased complexity in respect to a jurisdictional matter where clarity is particularly important.”51 In De Csepel v. Republic of Hungary,52 there was little question that the expropriation violated international law. Hungary’s Nazi-controlled regime had confiscated a whole art collection belonging to a Hungarian Jewish family. The family’s descendants sued the Republic of Hungary and some of its instrumentalities (state museums and a state university), seeking the collection’s return. Hungary argued, inter alia, that the FSIA was inapplicable because by its own language it is “[s]ubject to existing international agreements”53 of the United States, and that a 1947 peace treaty between the Allied Powers and Hungary established a mechanism for resolving disputes concerning the execution of the treaty. The court rejected the argument, reasoning that the treaty mechanism was not exclusive and thus the treaty did not displace the FSIA. Hungary’s second argument centered on the second part of the expropriation exception. The exception provides that there is no immunity if (1) property is taken in violation of international law; and (2) “that property . . . is present in the United States in connection with a commercial activity carried on in the United States by the foreign state,” or (3) “that property . . . is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States.”54 Because clause 2 was clearly inapplicable, Hungary argued that it should be dismissed as a defendant because clause 3 (unlike clause 2) mentions only agencies or instrumentalities but not the state itself. Faced with conflicting precedent, the court accepted the argument (over a strong dissent) and allowed the case to proceed only against the instrumentalities. C. Jurisdiction over Nonrecognized States Nonrecognized states do not enjoy sovereign immunity but they are entitled to the protections of the Due Process Clause55 for jurisdictional purposes. By contrast, under a judicially established rule, recognized foreign states are not “persons” for Due Process purposes and thus are not entitled to these protections.56 In Livnat v. Palestinian Authority,57 the plaintiffs agreed that the Palestinian Authority is not the government of a recognized sovereign state. Nevertheless, they urged the court to extend the scope of the aforementioned rule to include the Palestinian Authority.58 In a well-reasoned opinion, the court rejected the plaintiffs’ request. In addition, the court rejected the plaintiffs’ creative argument that the Fifth Amendment’s Due Process Clause imposes personal-jurisdiction restrictions that are less protective of defendants than those imposed by the Fourteenth Amendment.59 The court concluded that this argument “buckles under the weight of precedent,” noting that “[n]o court has ever held that the Fifth Amendment permits personal jurisdiction without the same ‘minimum contacts’ with the United States as the Fourteenth Amendment requires with respect to States.”60 Finally, applying “the usual due-process standards,”61 the court examined whether the plaintiffs made a prima facie showing of the pertinent jurisdictional facts to survive a motion to dismiss for lack of personal jurisdiction. The plaintiffs alleged that the West Bank attack was “part and parcel” of the defendant’s “general practice of using terrorism to influence United States public opinion and policy.”62 Characterizing this as conclusory inference that the record did not substantiate, the court held that the plaintiffs did not carry their burden to show specific personal jurisdiction.63 D. The Fukushima Nuclear Accident Cooper v. Tokyo Electric Power Company, Inc.64 arose out of the 2011 nuclear accident in Fukushima, Japan, during an earthquake and tsunami. The plaintiffs were U.S. Navy personnel who were exposed to radiation when deployed near the Fukushima nuclear plant as part of a relief mission. In 2012, they sued the plant’s owner, the Tokyo Electric Power Company (TEPCO), in California. Curiously, TEPCO must have conceded that California would have had jurisdiction in the first place,65 because it argued that California lost jurisdiction in 2015, when the United States and Japan ratified the Convention on Supplementary Compensation for Nuclear Damage (CSC). Article XIII(1) of the Convention provides that “jurisdiction over actions concerning nuclear damage from a nuclear incident shall lie only with the courts of the Contracting Party within which the nuclear incident occurs.”66 The defendant argued that this article applied to pending cases, such as the one at hand, because it was a jurisdictional provision and thus was not subject to the principle of non-retroactivity. The Ninth Circuit rejected the argument, after a careful analysis of the Convention’s text, structure, spirit, and policy goals. Then the court discussed whether the district court should have dismissed the action under principles of adjudicative comity. The Ninth Circuit compared (1) Japan’s “undeniably strong interest”67 (expressed in Japan’s amicus brief) in centralizing litigation of all claims in Japan, and (2) the United States’ position (expressed in a State Department amicus brief) in favor of retaining the case. The Ninth Circuit concluded that the district court did not abuse its discretion in deciding not to dismiss the case. The court reached the same conclusion with regard to the largely overlapping forum non conveniens analysis. E. The Political Question Doctrine In Bin Ali Jaber v. United States,68 the court held that the political question doctrine barred adjudication of an action brought by Yemeni plaintiffs whose family members were civilians killed during a U.S. drone attack in Yemen. To avoid this bar, the plaintiffs argued that they were simply asking for a declaration that the attack was conducted in violation of American and international law, and that was a question that the courts are constitutionally empowered to decide. The court rejected the argument, noting that the political question doctrine bars review of claims that, “regardless of how they are styled,” require examination of “the prudence of the political branches in matters of foreign policy or national security constitutionally committed to their discretion.”69 The court noted that the plaintiffs’ complaint alleged that the drone strike was not justified by urgent military purpose, that the targets did not pose an imminent threat to the United States or its allies, and that the risks to nearby civilians were excessive in comparison to the military objective of the strike. The court explained why courts are neither empowered nor equipped to examine these allegations, and reiterated that, “[i]n matters of . . . military strategy, courts lack the competence necessary to determine whether the use of force was justified,” and it is not their role “to second-guess the determination of the Executive . . . that the interests of the U.S. call for a particular military action.”70 The court concluded by repeating a statement from another case that “the foreign target of a military strike cannot challenge in court the wisdom of [that] military action taken by the United States.”71 In her thoughtful concurring opinion, Judge Brown suggested that contemporary realities and technological developments call for updating the fifty-five-year-old political question doctrine. While in other liberal democracies, including Israel, courts play “a significant supervisory role in policing exercises of executive power,” in the United States strict standing requirements, the political question doctrine, and the state secrets privilege “confer such deference to the Executive in the foreign relations arena that the Judiciary has no part to play.”72 After discussing Congress’s largely ineffective oversight role, Judge Brown asked: “if judges will not check this outsized power, then who will?”73 II. Extraterritoriality (or Non) of Federal Law A. Fifth Amendment Hernandez v. Mesa74 is the continuation but not the end of a case first discussed in the 2014 Survey, arising out of the cross-border shooting at the U.S.–Mexico border. Mesa, a U.S. Customs patrol officer standing on the U.S. side of the border, shot and killed Hernández, a fifteen-year-old Mexican boy standing on the Mexican side of the border.75 In the 2014 case, a panel of the Fifth Circuit held that, under the circumstances: (1) Hernández was entitled to the protection of the Fifth Amendment but not the Fourth Amendment; (2) Mesa was not entitled to qualified immunity; and (3) Hernández’s parents were entitled to a Bivens action76 against Mesa.77 On rehearing en banc, the Fifth Circuit held that Mesa was entitled to qualified immunity and dismissed the action.78 The Supreme Court held that the en banc Fifth Circuit erred in granting qualified immunity without first resolving the Fifth Amendment question, considering that “Hernández’s nationality and the extent of his ties to the United States were unknown to Mesa at the time of the shooting.”79 The Court vacated and remanded the case to the Fifth Circuit with instructions to reconsider its disposition of the Fifth Amendment and Bivens issues in light of an intervening Supreme Court decision.80 Governmental official immunity was also an issue in Saleh v. Bush,81 except that the involved officials—a former President and some members of his Cabinet—occupied a much higher position in the federal pyramid and had not themselves engaged in actual shooting.82 The plaintiff, an Iraqi civilian, sued them under the Alien Tort Statute, alleging that they “conspired to engage in, and did engage in, a war of aggression against Iraq and that, in doing so, they violated the ‘law of nations.’”83 The Ninth Circuit affirmed the dismissal of the action, after finding that the defendants were entitled to immunity under the Westfall Act, which accords federal employees absolute immunity from common law tort claims arising out of acts they undertake in the course of their official duties.84 The plaintiff argued that the defendants were not acting within the scope and course of their official duties because they (1) started planning the attack on Iraq before they ever took office, (2) attacked Iraq out of personal motives, and (3) were not employed to instigate an unlawful war. The court rejected all three arguments, reasoning that: (1) the defendants’ pre-war statements were “not planning, but only advocacy”;85 (2) their motives were not personal in the respondeat superior sense but were “actuated, at least in part, by a purpose to serve the master, the United States”;86 and (3) the defendants were authorized by Congress “‘to use the Armed Forces of the United States as . . . necessary and appropriate in order to . . . defend the national security of the United States against the continuing threat posed by Iraq.’”87 The plaintiff argued that the court should not interpret the Westfall Act in a way that immunizes officials for acts proscribed by several treaties of the United States condemning aggressive war. The court rejected the argument, reasoning that the Westfall Act was unambiguous and it was enacted after the United States ratified those treaties. Congress’s omnipotence was also the ground upon which the court rejected the plaintiff’s final argument—that Congress cannot immunize a federal official from liability for violating a peremptory norm of international law (jus cogens). The court’s response: “[E]ven assuming that the prohibition against aggression is a jus cogens norm, Plaintiff’s argument that Congress cannot provide immunity to federal officers in courts of the United States for violations of that norm is in serious tension with our caselaw.”88 In United States v. Allen,89 the question was whether testimony given by a person involuntarily under the legal compulsion of a foreign country may be used against that person in an American criminal proceeding. The Second Circuit answered the question in the negative. The court held that the Fifth Amendment’s self-incrimination clause prohibited the use in an American trial of compelled testimony obtained by foreign law enforcement authorities in a foreign country, even if they acted lawfully under that country’s laws and “in a manner that does not shock the conscience or violate fundamental fairness.”90 The court distinguished between (1) the freedom from self-incrimination guaranteed by the Fifth Amendment, which is a personal right of the accused in any American criminal proceeding; and (2) the exclusionary rules derived from the Fourth Amendment, which are attached to unreasonable searches and seizures and to otherwise valid confessions given without Miranda warnings. The latter rules do not apply extraterritorially because their purpose is to deter law enforcement authorities from acting unlawfully and they “have little, if any, deterrent effect upon foreign police officers.”91 By contrast, the Fifth Amendment’s self-incrimination clause “directly addresses what happens in American courtrooms . . . [and] [i]ts protections therefore apply in American courtrooms even when the defendant’s testimony was compelled by foreign officials.”92 In Matter of Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation,93 the Second Circuit denied rehearing en banc in a case discussed in last year’s Survey. In that case, a panel of the Second Circuit held that a search warrant ordering Microsoft to produce the contents of an e-mail account stored in its servers in Ireland did not have extraterritorial effect.94 Four judges dissented from the denial of rehearing. The Supreme Court granted certiorari.95 In In re Search Warrant for Records from AT&T,96 an interstate case, the New Hampshire Supreme Court held that a New Hampshire circuit court could issue a search warrant for cellular telephone records located in Florida. The laws of both states allowed extraterritorial warrants.97 B. Alien Tort Statute and Human Trafficking In Adhikari v. Kellogg Brown & Root, Inc.,98 the plaintiffs were family members of Nepali nationals who were killed in Iraq while being transported to an American military base to work for the defendant KBR, an American military contractor based in Houston. They sued KBR under the Alien Tort Statute (ATS)99 and the Trafficking Victims Protection Reauthorization Act (TVPRA).100 They argued that the American defendant’s conduct at the Iraqi base and in the United States brought their claim within the domestic territorial reach of the ATS. In a 2:1 opinion, a panel of the Fifth Circuit rejected the argument. The court found that the American contractor’s control over the Iraqi base was far less extensive than over the Guantanamo base involved in Rasul v. Bush,101 and that the Supreme Court’s functional test in Boumediene v. Bush102 was somehow inapplicable. The court also found that the defendant’s domestic conduct (transmitting payments to its local subcontractors and generally directing its Iraqi operations from Houston) did not fall within the ATS’s “focus” because that conduct in and of itself was not “conduct that violates international law.”103 The court also affirmed the district court’s refusal to allow plaintiffs to amend their complaint to add aiding and abetting conduct in the United States. The court reasoned that such an amendment “would bring Plaintiffs no closer to satisfying the test articulated in Morrison and in RJR Nabisco.”104 In his dissenting opinion, Judge Graves criticized the majority for adopting “an unnecessarily restrictive view as to the meaning of Kiobel’s ‘touch and concern’ language by engaging in a formalistic application of the Morrison ‘focus’ test,” which “would eliminate the extraterritorial reach of the statute completely.”105 But even under this restrictive view, Judge Graves found “much to support the conclusion that these claims ‘touch and concern’ the United States” because, according to the complaint, “a U.S. military contractor participated in a human trafficking scheme in order to fulfill its contract with the U.S. government to provide labor on a U.S. military base.”106 The court then examined the plaintiffs’ claim under the TVPRA, which prohibits forced labor and human trafficking and provides a civil action to the victims. The Act’s penal provisions always applied extraterritorially, but its civil action provision did not expressly provide for extraterritorial application. In 2008, Congress amended the Act and added an express statement of extraterritoriality to that provision. Unfortunately for the plaintiffs, their claims arose and their action was filed before 2008. The plaintiffs argued that the amendment merely clarified the law, rather than changed it, and thus it was applicable to pre-amendment events. The court rejected the argument, finding that the pre-amendment provision did not apply extraterritorially and that the amendment was substantive, and thus could not apply retroactively to pre-amendment events, such as those that formed the basis of the plaintiffs’ action. C. Civil RICO and Domestic Injuries Bascuñán v. Elsaca107 is the first case after the Supreme Court’s decision in RJR Nabisco, Inc. v. European Community108 to define “domestic injury” for purposes of a civil RICO action.109ŠBascuñán involved an elaborate fraudulent scheme through which the defendant embezzled $64 million from his cousin, the plaintiff, while managing the cousin’s financial affairs. Because the plaintiff was domiciled in Chile at all times (as was the defendant), the district court concluded that he suffered the injury in Chile and dismissed his civil RICO action under RJR Nabisco. The Second Circuit reversed in part, finding that some of the plaintiff’s injuries had occurred in the United States. The fraudulent scheme comprised four exploits, which the court examined separately. In the first two, the defendant embezzled foreign funds, parts of which he then deposited in his New York bank account and the rest he laundered through American banks. The court held that these actions did not cause a domestic injury to the plaintiff: “[T]he use of bank accounts located within the United States to facilitate or conceal the theft of property located outside of the United States does not, on its own, establish a domestic injury.”110 However, the other two exploits involved property located in New York at the time of embezzlement. The defendant embezzled money held in the plaintiff’s New York bank account and stole bearer shares kept in his New York safety deposit box. The court held that, with regard to those assets, there was domestic injury. The court noted that, although money is fungible, it could be treated as tangible property because it was “situated in a specific geographic location.”111 The court concluded that, “absent some extraordinary circumstance, the injury is domestic if the plaintiff’s property was located in the United States when it was stolen or harmed, even if the plaintiff himself resides abroad.”112 III. Choice of Law A. Torts 1. Georgia’s Peculiar Lex Loci Rule As detailed in the Surveys of previous years, Georgia belongs in the traditional choice-of-law camp,113 but its version of the lex loci delicti rule is peculiarly elastic. Besides frequently evading this rule through manipulative uses of escape devices such as the public policy exception,114 Georgia courts have carved out of the rule’s scope a whole category of cases to which the rule is inapplicable. These are cases in which the tort occurred in another state that inherited the English common law and has not enacted a statute for the particular tort. Coon v. Medical Center, Inc.115 is the latest application of this invention. The facts were tragic and macabre,116 but let us just say that the injurious conduct occurred in Georgia and the resulting injury occurred in Alabama, following which the Alabama plaintiff sued the Georgia defendant for negligent infliction of emotional distress. Neither state had a statute for such an action, but Alabama case law allowed it. By contrast, Georgia case law did not provide an action for cases such as this one in which the victim did not suffer physical injury or pecuniary loss. The trial court refused to apply the Alabama rule as contrary to Georgia’s public policy, and the court of appeals affirmed under a divided rationale. The Georgia Supreme Court affirmed, providing this unusual and self-serving rationale: “where a claim in a Georgia lawsuit is governed by the common law, and the common law is also in force in the other state, as it is in Alabama, the common law as determined by Georgia’s courts will control.”117 Noting that this approach “may seem anachronistic” to legal realists,118 the court explained that it is based on the old idea that “[t]he common law is presumed to be the same in all the American States where it prevails,”119 even when the courts in those states adopt different interpretations of it. These interpretations do not bind Georgia courts.120 “[N]ot only are [Georgia] courts competent to decide what the common law is, but it is [their] duty to [do so].”121 Under this approach, would Georgia courts ever apply the common law “interpretation” of another state? Yes, but only if they are “persuaded” that the other state’s interpretation is “superior.”122 But, even then, they would “still be applying [Georgia’s] conclusion regarding the common law, and the same [interpretation] would apply in future Georgia cases with no out-of-state element.”123 In this case, the court was not “persuaded” that Alabama’s interpretation, which allowed an action for negligent infliction of emotional distress even in the absence of physical injury, was “superior” to Georgia’s contrary interpretation. As the court opined, the prerequisite for a physical injury “goes far in addressing the concerns about unleashing a flood of claims for emotional distress and the ease with which fraudulent claims of emotional distress can be made.”124 2. Intrafamily Immunity and Families in Transit Lonzo v. Lonzo125 resembles one of those classroom hypotheticals (usually based on cases such as Reich v. Purcell126) in which the critical event happens while the parties are in the process of moving their domicile from one state to another. In this case, the Lonzo family was domiciled in Virginia, when they loaded their belongings in a rented U-Haul truck for a one-way drive to Louisiana, where they were to establish their new domicile. While driving through North Carolina, they were involved in a single-car accident caused by the negligence of Mr. Lonzo and resulting in injuries to his wife and their four minor children. Eight months later, after the family settled in Louisiana, the wife and children sued Mr. Lonzo and his insurer under Louisiana’s direct action statute. Under Louisiana’s interspousal and parental immunity rules, Mr. Lonzo was immune from suit by his wife and children, but the direct action statute allowed the plaintiffs to proceed against Mr. Lonzo’s insurer despite his own immunity. However, by its own terms, the statute is inapplicable unless the accident occurs in Louisiana or the insurance policy was issued or delivered in Louisiana. Because the accident occurred in North Carolina and the insurance policy was issued in Virginia, the plaintiffs could not recover under Louisiana law, but they could recover under either North Carolina or Virginia law because neither of those states had intrafamily immunity rules. Under article 3444(1) of the Louisiana conflicts codification, “issues of loss-distribution and financial protection,” such as immunities, are governed by the law of the parties’ common domicile “at the time of the injury.”127 Thus, the starting point in determining the applicable law depended on where the parties were domiciled at the time of the injury. The court remanded the case to the trial court for determining the parties’ domicile at that time. However, in a signal that this determination might not be the end of the inquiry, the court quoted statements from the codification’s drafter explaining the role of a post-accident change of domicile in potentially changing the otherwise applicable law: When the selection of the applicable law depends on a person’s domicile and is made a priori by the specific articles . . . [such as article 3444], the pertinent domicile is the domicile at the time of the critical event rather than the time of litigation. . . . [However], the flexible articles, such as . . . 3542 [the general article for tort conflicts], refer to domicile without assigning any time dimension to it. Consequently, in selecting the applicable law under the flexible approach of these articles, the court is free to take into account a party’s domicile at both the time of the critical event and the time of litigation. The same would be true for a court pondering whether to employ the escape clause of article 3547, which does not mention domicile per se but operates in conjunction with article 3542. Thus, in determining whether a case falls within the common-domicile rule or any other rule of article 3544, the court should focus on the domicile of the parties “at the time of the injury.” However, in deciding whether such a case is exceptional enough to come under the escape clause of article 3547, the court should consider the parties’ domicile at both the time of the injury and the time of the trial. For example, a postinjury change of domicile by the victim usually brings into play the pertinent compensatory policies of his new domicile—in the same way that a postinjury change of domicile by the tortfeasor will bring into play the new domicile’s policy of deterring or protecting tortfeasors. Since the court’s decision will inevitably impact these states, the change of domicile cannot be dismissed as irrelevant (provided, of course, that it is bona fide).128 3. Vicarious Liability In Ward v. Morlock,129 a Florida court held that Florida’s dangerous instrumentality doctrine applied to a South Carolina traffic accident involving exclusively Florida parties. While on vacation in South Carolina, the defendant, a Florida domiciliary, loaned his car to his brother-in-law, a Pennsylvania domiciliary, who then rear-ended a car driven by the plaintiff who, coincidentally, was also a Florida domiciliary. Under the dangerous instrumentality doctrine, the defendant car owner was liable for the plaintiff’s injuries. Under South Carolina law, the defendant was not liable under the facts of this case because he was not negligent in entrusting his car to his brother-in-law. The court concluded that Florida had the most significant relationship with regard to the issue of vicarious liability, thus rebutting the presumption of section 146 of the Restatement (Second) in favor of the law of the state of injury. The court pointed to a Restatement comment stating that, on issues of vicarious liability, the court should consider: “(1) whether the relationship between the defendant and the other person makes the imposition of vicarious liability reasonable and (2) whether there is a reasonable relationship between the defendant and the state whose local law is to be applied.”130 The court then explained why the application of Florida law was reasonable, giving the following reasons: (1) because both parties were domiciled in Florida, applying Florida law was “consistent with the policy behind its dangerous instrumentality doctrine,” which was to “protect plaintiffs from impecunious drivers by imposing liability on the owners of the vehicles”;131 (2) Florida had a “manifest interest in . . . holding its residents responsible under its dangerous instrumentality doctrine,” and that interest “far outweigh[ed] any interest that South Carolina may have . . ., where neither driver nor owner resides in South Carolina”;132 (3) South Carolina had “little, if any, interest” in relieving the Florida defendant from liability under Florida law, and thus, the application of Florida law would not “offend” South Carolina.133 A concurring judge pointed out that, because this was a loss-allocation conflict in which both parties were domiciled in the same state, the law of the common domicile should govern, citing the first Neumeier rule as persuasive authority.134 In Cothern v. Barber,135 the issue was the vicarious liability of parents for injuries caused by their children. An eighteen year old domiciled with her parents in Mississippi caused a traffic accident in Louisiana, injuring the plaintiff, a Louisiana domiciliary. Under Louisiana law, parents are liable for the torts of their minor children, but minority ceases when, as in this case, the child attains the age of eighteen. Under Mississippi law, minority ceases at the age of twenty-one, but parents are not liable for the torts of their minor children. In his Louisiana lawsuit against the parents, the plaintiff argued that the driver’s status as a minor should be determined under the law of her home state of Mississippi, whereas Louisiana law should govern the issue of her parents’ vicarious liability. Applying the Louisiana conflicts codification, the court rejected this issue splitting and found no reason to apply Mississippi law. Suspecting that such a splitting would lead to an inappropriate dépeçage,136 but without using this term, the court noted: [I]f Louisiana law applied to all aspects of this lawsuit, the [parents] could not be held vicariously liable for the actions of [their daughter], as she was eighteen at the time of the accident and, thus, no longer a minor under Louisiana law. . . . Likewise, if Mississippi law applied to all aspects of this lawsuit, the [parents] could not be vicariously liable for the actions of [their daughter], as under the laws of Mississippi, there is no common-law liability against the parent for the torts of their minor child.137 4. Distribution of Wrongful Death Proceeds In Shortie v. George,138 the question was which law governs the distribution of the proceeds of a wrongful death action. The case arose out of a Mississippi traffic accident that resulted in the death of a South Carolina domiciliary. The dispute was between the decedent’s husband and the decedent’s five children from a previous marriage. The husband and two of the children were domiciled in South Carolina. The other three children were domiciled in other states. Following approval of a settlement in the wrongful death action against the tortfeasor, the Mississippi trial court divided the proceeds according to Mississippi law, under which the husband and the five children would receive one sixth each. The court rejected the husband’s argument that the proceeds should be divided according to South Carolina law, which would give him fifty percent of the proceeds and the other fifty percent to the five children together. In an opinion that was much longer than necessary, the Court of Appeals correctly ruled that South Carolina law should govern the distribution of the proceeds. The court reasoned that South Carolina, as the domicile of the decedent and most of the beneficiaries and the center of their expectations, had the “dominant interest” with regard to that particular issue, which did not implicate any Mississippi interests.139 However, this was a hollow victory for the husband. The court found that the husband did not timely raise, and thus waived, the issue of the applicability of South Carolina law at the trial court. Because of this finding, the court upheld the trial court’s distribution of the proceeds under Mississippi law. 5. Hospital Liens Shelby County Health Care Corp. v. Southern Farm Bureau Casualty Ins., Co.140 was also a dispute about the proceeds of a wrongful death settlement, but the disputants were the hospital that treated the victim before his death and the victim’s estate. The accident that caused the victim’s death occurred in Arkansas, but the hospital was located across the Mississippi River in Memphis, Tennessee. To secure payment of the cost of treating the victim, the hospital filed a lien in Tennessee, but not in Arkansas, although it mailed a copy to the estate’s Arkansas attorney. The estate then settled with the tortfeasor’s insurer in an agreement signed in Arkansas and approved by an Arkansas probate court in a judgment purporting to extinguish all outstanding liens. The hospital filed a “lien impairment” action against the estate and the insurer in Arkansas. The district court dismissed the action, reasoning that the hospital did not properly perfect its lien under Arkansas law, and even if it had, the lien would be unenforceable because under Arkansas law a hospital lien cannot attach to the proceeds of a wrongful death action. The Eighth Circuit reversed. The court noted that this was not an action to enforce a lien, but rather an action “to seek relief for impairment of a lien.”141 This difference meant that Arkansas was not the state of the most significant relationship because the “relevant wrong” was the “alleged impairment of the lien, not [the] negligent operation of a vehicle.”142 Then turning to “the Leflar factors”143 but leaving out the better-law factor, the court concluded that Tennessee law should govern. The court reasoned, inter alia, that the first Leflar factor—“predictability of results”—favored Tennessee law because it “creates consistent outcomes for patients who live in different States when they seek medical care at the same facility in Tennessee” and “prevents forum shopping in lien impairment actions involving former patients.”144 The court also found that the second factor—the “maintenance of interstate and international order”—also favored Tennessee law because this hospital, which was located near the Arkansas–Tennessee border, was the only Level 1 Trauma Center within a 150-mile radius, and “render[ed] life-saving trauma care to hundreds of Arkansas residents per year.”145 The court concluded that, in light of these facts, the application of Arkansas law “would be disruptive to interstate order, because it would deprive [the hospital] of compensation for emergency care administered to severely injured Arkansans.”146 The last-quoted statement also provided a basis for the court’s supposition that this may be a case in which the Arkansas Supreme Court would show “[d]eference to sister state law . . . even though [Arkansas] also has an identifiable interest”147 in applying its law. 6. Medical Malpractice and State Immunity Montaño v. Frezza148 began as a medical malpractice action but ended as a dispute about state immunity. A doctor working for a Texas state university hospital performed an unsuccessful surgery on a New Mexico domiciliary, the plaintiff, who then sued the doctor in New Mexico. The doctor invoked a provision of the Texas sovereign immunity statute under which he was entitled to immunity.149 The lower courts refused to apply the Texas statute as contrary to New Mexico’s public policy. In a decision based on principles of comity, the New Mexico Supreme Court reversed. Drawing from New Mexico precedent, the court declared that the decision to accord immunity to another state should be based on the answers to four questions: (1) Under New Mexico law, would New Mexico enjoy similar immunity in similar circumstances?; (2) Has or is the other state likely to extend immunity to New Mexico?; (3) Does New Mexico have a strong interest in litigating the case?; and (4) Would extending immunity prevent forum shopping? The court answered questions 1, 2, and 4 in the affirmative and question 3 in the negative. Regarding that question, the court found that Texas had “a comparatively strong interest in determining the duties and immunities of [the Texas] employee and applying a uniform standard of liability to identical conduct by Texas employees performing their duties in Texas.”150 Compared to that, New Mexico’s interest in providing a forum for New Mexicans who seek redress for medical negligence was not only “tempered by the concept of comity”151 but was also weakened by another factor—the shortage of specialist doctors in certain rural parts of New Mexico near the border with Texas. “Could failing to extend comity to Texas in this case diminish the availability of important medical services to those New Mexico residents?” asked the court; it then concluded that extending comity to Texas would “positively serve New Mexico’s public policy interests by encouraging the continuing cooperation of Texas and New Mexico in maintaining cross-border care networks.”152 7. Federal Tort Claims Act and United States Immunity The Federal Tort Claims Act (FTCA) waives the United States’ sovereign immunity from tort suits, but also contains certain exceptions. One of them, known as the foreign country exception, is that the waiver of immunity does not apply to “[a]ny claim arising in a foreign country.”153 In Sosa v. Alvarez-Machain, the Supreme Court held that this exception bars all claims “based on any injury suffered in a foreign country.”154 However, the Court left unanswered the question of how to determine where an injury is “suffered.” In S.H. by Holt v. United States,155 the Ninth Circuit answered this question in the most traditional way by resurrecting the First Conflicts Restatement and holding that an injury is suffered “where the harm first ‘impinge[s]’ upon the body.”156 In Holt, the plaintiffs’ daughter was born prematurely while the family was stationed at a United States Air Force (USAF) base in Spain. Because of her premature birth, the daughter sustained a permanent brain injury and, after the family’s return to the United States, she was diagnosed as suffering from cerebral palsy. The plaintiffs sued the United States, contending that a USAF doctor who examined the pregnant mother before the husband’s transfer to Spain was negligent in approving the family’s stationing at the Spanish base, which was ill-equipped to deal with the mother’s known medical needs. The district court found that the injury occurred in the United States and rendered a $10 million judgment for plaintiffs. The Ninth Circuit reversed. Bound by Sosa’s originalist position that the FTCA must be interpreted under the conflicts doctrine followed at the time Congress enacted the Act (in 1946), the court turned to the then-dominant First Conflicts Restatement. The court quoted in full one of the Restatement’s illustrations describing a situation in which “a force is first set in motion by some human being . . . [and] harm[s] the body of another . . . [who] thereafter goes into another state and die[s] from the injury or suffer[s] other loss therefrom.”157 The illustration proclaims: “The place where this last event happens is . . . immaterial. The question is only where did the force impinge upon his body.”158 The court thought that this illustration was a perfect fit with the facts of this case. The evil force that impinged upon the body was the brain injury, and the impingement occurred in Spain. The cerebral palsy (which, the court noted, “is not a disease but rather a collection of symptoms”159) was simply the consequence of that injury and the place where it manifested itself was “immaterial.”160 8. Defamation Section 150(2) of the Restatement (Second) provides that, “[w]hen a natural person claims that he has been defamed by an aggregate communication, the state of most significant relationship will usually be the state where the person was domiciled at the time, if the matter complained of was published in that state.”161 In McKee v. Cosby,162 the alleged defamatory material was a letter that comedian Bill Cosby’s attorney emailed to a New York newspaper, which disseminated its contents in all states. At that time, the letter’s target (one of Cosby’s alleged sexual abuse victims) was domiciled in Michigan but, six months later, she moved to Nevada. In her defamation lawsuit against Cosby, the plaintiff argued for the application of the law of Massachusetts, which was Cosby’s home state. Cosby argued for the application of either Michigan or Nevada law. The court agreed with Cosby, finding that, as the plaintiff’s longstanding domicile, Michigan was the state of the most significant relationship because that was the state in which her reputation would suffer the most harm. Applying Michigan law, the court dismissed the action, after finding that the letter was not defamatory. In Couzens v. Donohue,163 another defamation case, the issue was the timeliness of the plaintiff’s action, which in turn depended on where the defamatory material was “published.” The plaintiff was a Missouri domiciliary who reported to Missouri newspapers that he had been sexually abused by Catholic priests in Missouri. Responding to the accusations, the Catholic League, a New York nonprofit organization, issued a press release in New York, which was then disseminated through the Internet in all fifty states. The plaintiff’s action against the League was timely under Missouri’s two-year statute of limitations, but Missouri also had a borrowing statute requiring the application of the shorter limitation period of the state in which the cause of action “originated.” The court found that a defamation cause of action “originates” where the defamatory material is “first published” and that, in the context of mass-media communications, publication occurs when the material “becomes available to the general public.”164 The defendant attested that the material was “printed, edited, distributed and/or published via a news release in New York,”165 and argued that this made applicable New York’s one-year statute of limitations, which barred the action. The plaintiff noted that materials posted on the Internet “become available in every state almost instantaneously.”166 But, rather than arguing that this meant that the publication occurred, at least partly, in Missouri, he argued that it was “impossible to determine the state in which [the materials] were ‘first published.’”167 He did argue, however, that Missouri, “as [the plaintiff’s] state of residence and the state in which he suffered reputational injury,” had the “most significant relationship” and its statute of limitations (without the borrowing statute) should govern.168 The court rejected all of the plaintiff’s arguments and affirmed the dismissal of his defamation action. 9. Extraterritoriality (or Non) of State Statutes a. Cross-Border Telephone Calls In Ditech Financial, L.L.C. v. Buckles,169 the Nevada Supreme Court held that a Nevada statute that prohibited the recording of telephone calls without the consent of both parties was inapplicable to nonconsensual recordings made outside Nevada and involving calls made to or from a party in Nevada.170 In this case, the Nevada party was a mortgagor whose mortgage was serviced by the defendant, a Minnesota-based mortgage company. The company routinely recorded its telephone calls to or from its customers in several states. The mortgagor sued the company in federal court in Nevada, and that court certified to the Nevada Supreme Court the question of the statute’s applicability. As conflicts teachers will remember, in a well-reasoned opinion in Kearney v. Salomon Smith Barney,171 the California Supreme Court held that a similar California statute applied to nonconsensual recordings made outside California in calls to or from California customers. The Nevada court made no mention of Kearney—it did not have to. Instead, the court thought that a Nevada case, Mclellan v. State,172 was dispositive. Mclellan involved telephone calls made by a Nevada sex offender to minors in other states and lawfully recorded by police in those states. The Mclellan court held that those recordings were admissible evidence in the Nevada criminal proceeding. The Ditech court spent no time addressing the plaintiff’s argument that these two cases were distinguishable. Even more surprising—the Ditech decision was unanimous. b. State Civil RICO New Jersey has a Racketeer Influenced and Corrupt Organizations (RICO) statute, which is modeled after the federal RICO statute and provides a private cause of action to persons who suffer loss in their business or property caused by the proscribed racketeering activity. New York, on the other hand, has a narrower statute, the Organized Crime Control Act (OCCA), which is not modeled on the federal statute and does not provide a private cause of action. In Fairfax Financial Holdings, Ltd. v. S.A.C. Capital Management, L.L.C.,173 an $8 billion case of “leonine demeanor,”174 New Jersey’s intermediate court had to decide which of the two statutes was applicable. The plaintiffs were a Canadian insurance holding company and one of its subsidiaries headquartered in New Jersey. The defendants were a group of hedge funds, investment broker dealers, and associated individuals and corporations, most of whom were based in New York and acted there. The plaintiffs alleged that the defendants conducted a four-year “bear raid” by fabricating bogus accounting claims and biased analyst research, and spreading negative stories about the plaintiffs designed to generate short-sale profits for the defendants and ultimately “crush” the plaintiffs. In a 111-page comprehensive and didactically methodical opinion, the court held that New York law governed because “the alleged RICO activity predominantly occurred in New York rather than New Jersey, and was primarily aimed at harming plaintiffs indirectly by damaging their reputation by influencing the mostly New York-based financial markets and financial news media.”175 Although this holding was fatal to the plaintiffs’ private RICO action, it did not affect their common law claims for disparagement or trade libel and tortious interference with prospective economic advantage. The court held that those claims were timely because the applicable statute of limitations was New Jersey’s six-year statute rather than New York’s one- or three-year statute.176 The court also held that New York substantive law, which was less generous than New Jersey law, governed those claims. c. Other Statutes New York’s Human Rights Law contains an express extraterritoriality provision, stating that it “shall apply . . . to an act committed outside this state against a resident of this state . . . if such act would constitute an unlawful discriminatory practice if committed within this state.”177 Because of this provision, the New York Court of Appeals had no difficulty concluding in Griffin v. Sirva, Inc.178 that the statute applied to an out-of-state contractor who aided and abetted a New York subcontractor in discriminating against its employees who worked outside New York. By contrast, New York’s Labor Law does not contain an express extraterritoriality provision. For this reason, New York’s intermediate court held in Rodriguez v. KGA, Inc.179 that the law did not apply to overtime and minimum wages claims against a New York employer arising from work performed outside New York. The court based its conclusory opinion on a “Statement of public policy” in the statute’s preamble, which notes that “[t]here are persons employed . . . in the state of New York” at very low wages and declares New York’s policy goal “that such conditions be eliminated as rapidly as practicable.”180 The court thought the above italicized words prohibited the application of the statute to out-of-state work. In Stroman Realty, Inc. v. Allison,181 an Illinois court held that an Illinois statute that required real estate agents performing services in Illinois to be licensed in Illinois was inapplicable to a Texas real estate broker who advertised in Illinois and solicited an Illinois customer. The court noted that the broker had no other presence in Illinois and the solicitation was for the customer’s timeshare apartment located in Tennessee. 10. Air Travel, a Needlestick, and the Montreal Convention Doe v. Etihad Airways, P.J.S.C.182 is a very interesting decision interpreting the 1999 Convention for the Unification of Certain Rules for International Carriage by Air, known as the “Montreal Convention.”183 This Convention, which is now in force in 125 countries, including the United States, replaced the 1929 Warsaw Convention, which severely restricted the rights of passengers and other plaintiffs against the airlines.184 Article 17(1) of the Montreal Convention provides that an airline is strictly liable “for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”185 The dispute in Doe centered on the three italicized words. But first the facts. The plaintiff was a passenger on one of Etihad’s airplanes on an international flight when her finger was pricked by a hypodermic needle that lay hidden in the seatback pocket in front of her. She sued the airline for both her bodily injury and the mental distress she experienced due to her fear that the needle might have been contaminated with infectious diseases.186 The airline argued that the phrase “damage sustained in case of . . . bodily injury” in Article 17(1) meant only damage “caused by” bodily injury and did not include the plaintiff’s fear of contagion and other emotional injuries, which, the airline argued, were caused not by the bodily injury but rather “by the nature of the instrumentality of that injury (the needle).”187 This argument was not as farfetched as it sounds. It was based on cases interpreting a similar provision of the Warsaw Convention, in which the courts held that an airline was not liable for mental injuries that were not caused by physical injuries. Influenced by those cases, the district court accepted the argument and held for Etihad. The Sixth Circuit reversed. The court distinguished the Warsaw Convention cases on the ground that that Convention was clearly motivated by a policy of overprotecting airlines, and that overprotection was the reason for the United States’ sustained and successful effort to replace it with the Montreal Convention, which “favors passengers rather than airlines.”188 The court held that, under Article 17(1) properly interpreted, a person who suffers bodily injury as a result of an accident on board an airplane may recover for her emotional or mental damages, “so long as they are traceable to the accident, regardless of whether they are caused directly by the bodily injury.”189 The court then turned to the question of which law should determine the amount of damages the plaintiff could recover and whether her husband was entitled to an action for loss of consortium. The court noted that Article 29 of the Convention provides that the rights granted by Article 17(1) are “without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights.”190 The court held that, under Supreme Court precedents interpreting a parallel provision of the Warsaw Convention (which on this issue was similar to the Montreal Convention), the applicable law should be domestic state law (rather than federal common law), and that the applicable law should be selected under the choice-of-law rules of the forum state. In this case, Michigan was the forum state and also the plaintiff’s domicile. The court concluded that, under Michigan’s strong lex fori presumption, Michigan substantive law would be applicable. The court remanded the case to the district court with instructions to that effect. B. Products Liability 1. Introduction As these annual Surveys illustrate, the plaintiffs’ choice-of-law victories in products liability cases have been diminishing every year.191 The changing composition of the judiciary is probably one of the reasons, but there are others as well. Rather than speculating further, let us just say this year represents a continuation of this trend. As the discussion in this subsection illustrates, the majority of this year’s cases applied a law that favored the defendant, both when the forum state’s law favored or disfavored the defendant, and regardless of choice-of-law methodology. 2. Cases Applying the Pro-defendant Law of a Plaintiff-Affiliated State O’Brien v. Cessna Aircraft, Co.192 is representative of two trends: (1) the tendency of many plaintiffs to sue in their home state even when it has a pro-defendant law, and (2) the tendency of many courts to apply the law of that state if the injury occurred there. The plaintiff, a Nebraska domiciliary, was injured in Nebraska when the Cessna airplane he was piloting crashed. He filed a products liability action in Nebraska against Cessna, a Kansas-headquartered corporation that designed and manufactured the plane in Kansas. The only conflicts issue was the availability of punitive damages, which Kansas law allowed and Nebraska law prohibited. The Nebraska Supreme Court held that Nebraska law governed because the plaintiff failed to rebut the presumption of Restatement (Second) section 146 in favor of the law of the state of injury. After repeating the Restatement’s admonition that “contacts are not to be given equal weight mechanically,”193 the court enumerated Nebraska’s contacts and concluded that they “predominate[d] in favor of applying Nebraska law.”194 Indeed, the Nebraska contacts were more numerous, even without the court’s double counting.195 However, this does not necessarily mean that Nebraska had “the most interest”196 in applying its law. The number of a state’s contacts says very little about whether that state has an interest in applying its law. What determines the existence of such an interest is the content of a state’s law coupled with the presence of contacts relevant to the policy that law embodies. In this case, Nebraska law prohibited punitive damages, apparently in order to protect defendants engaging in conduct that other states consider egregious enough to punish. However, Nebraska did not have contacts relevant to that policy since this case did not involve either a Nebraska defendant or a defendant who acted in Nebraska. By contrast, the Kansas punitive damages rule embodied a policy of punishing defendants engaging in a particular conduct and deterring them and others from engaging in similar conduct in the future. Since this case involved a Kansas defendant who engaged in the proscribed conduct in Kansas, Kansas had every interest in applying its law. Thus, in interest analysis terminology, this was a false conflict in which Kansas had an interest in applying its law and Nebraska had no countervailing interest. Admittedly, the Nebraska court did not purport to follow interest analysis as such (certainly not the Brainerd Currie version of it); nor should it have to. Even so, however, the court should not be justifying the application of Nebraska law by referring to an affirmative Nebraska “interest” in applying its law. Instead, it should be basing it on the public policy exception in its negative function. The fact that Nebraska’s prohibition of punitive damages was part of its Constitution signified a strong public policy against such damages. Under these circumstances, Nebraska could legitimately invoke that policy as the reason for refusing to apply the Kansas punitive damages rule, thus making Nebraska law applicable by default. In Zacher v. Robinson Helicopter, Co.,197 a case arising from the crash of a helicopter in Minnesota, the victim’s widow sued the manufacturer in its home state of California. California was also the place where the manufacturer designed, manufactured, assembled, marketed, and sold the helicopter, and from where it allegedly failed to warn users of its known defects. Although California’s statute of limitations did not bar the action, California’s borrowing statute required the application of the shorter limitation of the state in which the cause of action “arose.” The plaintiff argued that the borrowing statute was inapplicable because the action arose in California where the critical conduct that led to the crash had occurred. This is a typical argument in cases of this pattern and, more often than not, courts reject it. Thus, it was not surprising that the California court also rejected it. But, in a rather puzzling rationalization, the court based its rejection on the fact that this was a wrongful death action as opposed to any other tort action. For example, the court said: What makes wrongful death actions unique is that the breach of duty to be established . . . in a wrongful death case is that owed by defendant to the decedent, rather than to the victim’s survivors, even though it is the loss suffered by the survivors which forms the basis for the suit.198 The court continued: “A wrongful death action does not come into being—or arise—until the death of the decedent. The tort suffered by the decedent is simply the theory of liability for the wrongful death action brought by the decedent’s heirs.”199 The court concluded that, since the decedent’s heirs were domiciled in Minnesota, the “cause of action for wrongful death arose in Minnesota.”200 This conclusion led to Minnesota’s statute of limitations, which provided that wrongful death actions must be filed within three years from the death but not later than six years “after the act or omission.”201 The plaintiff filed her action within three years from her husband’s death, but the court used the above-quoted phrase as the reason for returning to the defendant’s conduct, which it had earlier discounted. The “act or omission” that caused the death was the defendant’s negligence in manufacturing and marketing an allegedly defective product and failing to warn about its defects. The court held that, because those acts or omissions had occurred more than six years before the helicopter crashed, the plaintiff’s action was time barred. In M.M. By and Through Jeanette M. v. Pfizer, Inc.,202 the product in question was a prescription drug that the plaintiff used in her home state of Michigan, where she also suffered the injury.203 Apparently because Michigan had a pro-defendant law, the plaintiff sued the manufacturer in West Virginia, a state that had a pro-plaintiff law.204 Unfortunately for the plaintiff, West Virginia is a lex loci delicti state. In fact, for this type of products liability case, West Virginia has a statutory lex loci delicti rule, which provides: [I]n determining the law applicable to a product liability claim brought by a nonresident of this state against the manufacturer or distributor of a prescription drug for failure to warn, the duty to warn shall be governed solely by the product liability law of the place of injury (“lex loci delicti”).205 Although the plaintiff asserted three causes of action (strict liability, negligence, and failure to warn), the court found that the failure to warn claim absorbed the other two: the drug manufacturer failed to warn prescribing physicians that the use of the particular drug during pregnancy was linked to an increased risk of birth defects. The court held that, under the above statutory rule, Michigan law governed. Under that law, the manufacturer was not liable for a failure to warn claim if, as in this case, the FDA had approved the drug’s labeling. The court also noted that, even if the failure to warn claim did not absorb the strict liability and negligence claims, the plaintiff could still not prevail because “[i]n general, [West Virginia] adheres to the conflicts of law doctrine of lex loci delicti,”206 which would again lead to the application of Michigan’s pro-defendant law. 3. Other Cases Applying a Pro-defendant Law West Virginia was also the forum state in State ex rel. American Electric Power, Co. v. Swope.207 The plaintiffs were family members of workers working at an Ohio power plant and landfill who claimed injuries from coal combustion residuals carried home by the workers’ clothing and shoes. Ohio’s “Mixed Dust” Statute expressly prohibited any claim against the plant owner for injuries caused by off-premises exposure to “mixed dust.” For this reason, the plaintiffs sued the plant owner in neighboring West Virginia, which did not have such a statute. Although the plaintiffs were not from West Virginia, they argued that the defendant should anticipate the application of West Virginia law because the defendant operated plants and landfills near West Virginia’s border and employed many West Virginians. The plaintiffs had some initial success because the lower court held that the Ohio statute was offensive to West Virginia’s public policy. However, the West Virginia Supreme Court reversed, reasoning as follows: [A]lthough West Virginia has a strong public policy that persons injured by the negligence of another should be able to recover in tort, in this particular case, where these twelve plaintiffs lack a sufficient connection with the state of West Virginia, we are not strongly compelled to resist application of Ohio’s Mixed Dust Statute.208 In Burdett v. Remington Arms Company, L.L.C.,209 the forum state of Texas had a pro-defendant statute, but this did not discourage the plaintiff from suing there. Section 71.031 of the Texas Civil Practice and Remedies Code provides that Texas courts may enforce a tort action even if the conduct or injury occurred in a foreign state or country, if: (1) a law of the foreign state or country or of [Texas] gives a right to maintain an action for damages . . .; (2) the action is begun in this state within the time provided by the laws of this state for beginning the action; [and] (3) for a resident of a foreign state or country, the action is begun in this state within the time provided by the laws of the foreign state or country in which the wrongful act, neglect, or default took place . . . .210 In Burdett, the plaintiff was “a resident of both Texas and Georgia.”211 He was injured while hunting in Texas when his Remington rifle, which he had purchased in Georgia, suddenly discharged, firing a bullet through his foot. The defendant Remington, a Delaware corporation, designed, manufactured, and assembled the rifle in New York. Under New York law, the plaintiff’s action would be timely, but Texas had a fifteen-year statute of repose barring the action. The court held that the action was barred “regardless of whether [the plaintiff] is considered a resident of Texas or Georgia”212 because, in either case, his action failed to satisfy the requirements of subparagraph 2 of the above-quoted statute, which must be satisfied by both Texas and non-Texas plaintiffs. 4. Cases Applying a Pro-plaintiff Law In Startley v. Welco Manufacturing, Co.,213 the plaintiff fared better. He sued in a state that had a pro-plaintiff law, Illinois, and succeeded in persuading the court to apply Illinois law. The plaintiff was exposed to the defendant’s asbestos products during the three- or four-month period he was domiciled and worked in Illinois. Although both before and after that period he was domiciled and worked in Alabama, where he was also exposed to other asbestos products, he limited his claim to the injuries caused by the Illinois exposure. The conflicts discussion was limited to the laws of Alabama, which had a statute of repose barring the action, and Illinois, which did not. The court held that Illinois law governed “because the injury occurred in Illinois, and no countervailing considerations overcame the presumption that Illinois law should apply.”214 The court noted that Illinois was also the place of the delivery of the asbestos products and thus the place of the plaintiff’s “relationship” with the defendant.215 In Chen v. L.A. Truck Centers, L.L.C.,216 the relevant contacts were spread in five different states. If only for this reason, but also because of the court’s thorough and meticulous analysis, this is the most interesting among the 2017 products liability cases. A tour bus owned by a California tour company and driven by a California driver crashed in Arizona, causing the death of some of its passengers and injuring others. All passengers were Chinese tourists. The injured passengers and the family members of the dead passengers filed suits in California against: (1) the tour company, (2) the bus driver, (3) the Indiana manufacturer of the bus, and (4) the California dealer who sold the bus to the tour company in California and failed to buy the option of equipping the bus with seat belts. The first two defendants settled before the case went to trial. The remaining two defendants argued for the application of Indiana’s pro-defendant negligence law, while the plaintiffs argued for the application of California’s strict products liability law. Neither side argued for the application of Arizona or Chinese law. The trial court granted the defendants’ motion to apply Indiana law, following which the Indiana manufacturer settled with the plaintiffs, leaving only the California dealer as a defendant. The plaintiffs filed a motion for reconsideration of the court’s prior ruling regarding Indiana law. The trial court refused and the plaintiffs appealed. The court of appeals held that the trial court should have granted the plaintiffs’ motion, and that California law rather than Indiana law governed the plaintiffs’ strict products liability claims. The court reached this conclusion after a thoughtful comparison of the interests of California and Indiana. The court began its examination of California’s interests by identifying four purposes or policies underlying California’s adoption of strict products liability. The first and primary purpose was “to insure that the cost of injuries of defective products is borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.”217 The court reasoned that, although in this case the victims were not injured or domiciled in California, this policy was implicated because the California dealer “placed the bus on the market in California.”218 The second and third policies, “to provide an economic incentive for improved product safety” and “to induce the reallocation of resources toward safer products,”219 were also implicated because this case involved a California dealer who failed to take advantage of the inexpensive seat belt option, which would have made the bus much safer.220 Finally, the fourth policy, “to spread the risk of loss among all who use the product,” was also implicated because the application of California law “would enable the risk of injuries on tour buses without seatbelts to be imposed on all users, via the cost of the product, rather than the injured plaintiffs alone.”221 Based on the above, the court concluded that “California’s interest in imposing its rules of strict products liability in this case, in which a California dealership ordered an allegedly defective product, imported it into the state, and sold it to a California tour company, for use on California roads, is strong.”222 In examining Indiana’s interest in applying its “more business-friendly products liability laws,” the court acknowledged that, in some cases, a state’s interest in protecting local businesses “can extend to foreign businesses doing business in the state.”223 The court noted that, in McCann v. Foster Wheeler, L.L.C.,224 the California Supreme Court articulated such an interest in “attracting out-of-state companies to do business within the state, both to obtain tax and other revenue . . . and to advance the opportunity of state residents to obtain employment and the products and services offered by out-of-state companies.”225 However, the Chen court found that this case did not implicate this interest because the California dealer “d[id] not sell any products in Indiana; it d[id] not provide goods or services there; [and] it d[id] not employ any Indiana residents.”226 The court concluded that Indiana had no interest “in extending the favorable laws it has adopted for the benefit of local sellers to a foreign buyer who then resells the product in its home jurisdiction.”227 Since California had a strong interest and Indiana had none, this was a false conflict and thus the court did not have to employ comparative impairment in resolving it. However, the court stated that even if this were a true conflict, California law should still apply because California’s interests would be more impaired by the application of Indiana law than Indiana’s interests by the application of California law: Advancing [California] interests by imposing California law on [the dealer], a California defendant which ordered the allegedly defective product, brought it into California, and sold it to a California tour company, for use in California (and elsewhere), would all be well within California’s scope of authority. In contrast, any interest of Indiana in limiting the scope of liability of [the dealer] for this conduct would be an unprecedented extension of Indiana law—allowing Indiana to permanently attach to any product manufactured in the state its restrictive views of products liability, regardless of resale.228 There is reason to doubt, however, whether this holding is the end of the case because the California Supreme Court has granted the defendant’s petition for review.229 C. Contracts 1. Choice-of-Law Clauses and Jury Waivers Rincon EV Realty, L.L.C. v. CP III Rincon Towers, Inc.230 is the most important case of the year dealing with the enforceability of choice-of-law clauses. The central question in Rincon was whether contracting parties may waive in advance, through the choice of another state’s law or otherwise, the right to a jury trial, which is guaranteed by the constitution of the forum state, California. In contrast to other states, California courts have previously held that, under the California statute implementing the constitutional provision, a pre-dispute agreement waiving that right is unenforceable in litigation (as opposed to arbitration).231 In this case, the underlying transaction was a $110 million loan to finance the purchase of a building in San Francisco. The contract between the lender and the borrower, both New York entities, contained a New York choice-of-law clause,232 a clause specifically waiving the borrower’s right to invoke the law of any other state,233 and an explicit waiver of the right to a jury trial, which was enforceable under New York law.234 The choice-of-law clause specifically referred to the infamous section 5-1401 of New York’s General Obligations Law, which provides that parties to certain contracts worth more than $250,000 may agree that the law of New York shall govern the contract “whether or not such contract . . . bears a reasonable relation to [New York].”235 In this case, the contract did have a substantial relationship to New York, but this relationship alone does not ensure that the courts of other states will enforce the New York choice-of-law clause. Enforcement is assured only if the case is litigated in a New York court. However, surprisingly for such a high-value contract, the sophisticated lawyers who drafted it did not include a New York forum selection clause;236 and that is why the borrower chose to sue in California rather than New York.237 While acknowledging that New York had a substantial relationship to the parties and the contract, as well as “an interest in protecting the expectations of parties,”238 the California court found that California had a materially greater interest in applying its law and that its prohibition of jury waivers qualified as a “fundamental” policy. Because the application of New York law, which allowed jury waivers, would violate that policy, the court held the jury waiver unenforceable. The court rejected the trial court’s assessment that California’s interest was not strong because “all parties to the agreements at issue were sophisticated commercial or business entities.”239 The appellate court noted that the relevant California statute did not allow courts to differentiate between sophisticated and unsophisticated parties and that the prohibition of pre-dispute jury waivers was “part of a considered procedural scheme intended to create a balanced adversarial system”240 providing “access to civil justice on the same terms for everyone, with no exceptions for the sophisticated or the wealthy” and “not just . . . consumers or those needing protection from contractual overreaching.”241 The court also rejected the lender’s argument that, “because plaintiffs were not domiciled in California, California had “no interest in protecting them.”242 The court replied that California’s policy was “not focused solely on the protection of California residents (or persons whose claims rest[ed] on events occurring entirely in California)” but instead protected the rights of “California litigants.”243 2. Choice-of-Law Clauses and Trusts In Osborn v. Griffin,244 a testamentary trust case, the question was whether the trustee owed fiduciary duties to the trust’s contingent beneficiaries. The answer was yes under the law of Kentucky, which had all the relevant contacts, including the domiciles of the trustees and beneficiaries and the location of most of the trust properties. However, the trust instrument contained an Ohio choice-of-law clause, apparently because the settlor’s attorneys who drafted the instrument were located just across the Ohio River, in Cincinnati. Under Ohio law, the trustees did not owe fiduciary duties to the beneficiaries. In a decision rendered under Kentucky conflicts law, the Sixth Circuit had no difficulty concluding that Kentucky law should govern. The court noted that Kentucky courts have “an extremely strong and highly unusual preference for applying Kentucky law even in situations where most states would decline to apply their own laws,”245 and that the Kentucky Supreme Court has confirmed that “it will apply its own law to a dispute with ties to Kentucky, even in spite of an otherwise-valid choice of law clause.”246 In this case, the court noted, “there can be no question that Kentucky ha[d] the most significant relationship” and that Kentucky’s public policy of protecting trust beneficiaries was “strong.”247 Because of these factors, but also in light of Kentucky’s “unusually strong preference for applying its own laws,”248 an Erie-bound federal court had to apply Kentucky law. 3. Choice-of-Law Clauses and Old-Style Ordre Public In Fay v. Total Quality Logistics, L.L.C.249 and Pengbo Fu v. Yongxiao Fu,250 the courts invoked the public policy of the forum qua forum (as opposed to the “fundamental” policy of the otherwise applicable law) as the reason for refusing to honor a choice-of-law clause.251 In Fay, a South Carolina court held unenforceable as offensive to the forum’s public policy a non-compete covenant in an employment contract that contained an Ohio choice-of-law clause, which was valid under Ohio law. The holding is not surprising. What is surprising is that neither this court (nor the court below) saw any need to mention South Carolina’s contacts, if any, with the case. The court did mention that the employer was an Ohio-based transportation company and the employee’s job as a sales executive called for performance in several states. But the court did not mention whether the employee was domiciled, hired, or fired in South Carolina, or whether he set up his competing business in that state. The court apparently assumed that, under the traditional theory, which South Carolina follows, the presence of forum contacts are not necessary for employing the public policy exception. In Pengbo Fu, an Illinois court used the forum’s public policy in the same way, even though Illinois follows the Restatement (Second) and Illinois had only slight contacts with the case. The object of the dispute was money held in an escrow account in an Illinois bank, but the disputants were a Chinese national domiciled in China and his son who was domiciled in Massachusetts. The two parties had signed a gift agreement in China, stating that the father agreed to “make a free and unconditional gift” of $590,000 to his son. The parties’ understanding was that the son would use the funds to pursue an EB-5 Visa to immigrate to the United States. Under U.S. immigration law, an alien who invests at least $500,000 in certain types of projects in the United States is eligible for an EB-5 visa. However, one of the many requirements is that the alien must show that the invested funds are his own, and that he obtained them through lawful means. The son received the money and moved to the United States, but his three attempts to obtain a visa were unsuccessful. The father sued the son in Illinois, seeking a revocation of the gift under Chinese law. He invoked article 192 of the Chinese Contract Law (supplied in translation), under which a gift may be revoked if: (1) the donee seriously harms or infringes the rights or interests of the donor or the donor’s close relatives; (2) the donee has an obligation to provide for the donor but fails to fulfill this obligation; or (3) the donee does not perform obligations agreed upon in the gift contract.252 The father claimed that the son had violated all three of the above provisions and that he was “inconsiderate” toward his parents and “refused to talk to them.”253 The gift agreement contained a Chinese choice-of-law clause, but the court did not dwell on it because of the way it disposed of the case. The court did not rule out the possibility of applying Chinese law but asked the father to provide authorities interpreting and “analyzing” the Chinese law, including an explanation of how a “free and unconditional” gift can be revoked or become conditional.254 Because the plaintiff was unable to produce the requested authorities (assuming they existed), the court affirmed the trial court’s dismissal of the action under Illinois law for failure to state a claim upon which relief could be granted. However, the court also held in the alternative that, even if the father could prove that Chinese law allowed a donor to revoke an unconditional gift, the court would reject that law as “oppressive, immoral, and impolitic” and thus contrary to Illinois’ public policy.255 The court noted that the gift had to be unconditional because that was the only way the son could meet one of the conditions for visa eligibility, which required a showing that he was using his own money. To allow a subsequent revocation of the gift, the court reasoned, would “facilitate a deception upon the U.S. government.”256 4. Separability(?) of Choice-of-Law Clauses Sack v. Cessna Aircraft, Co.257 involved a difficult question of the chicken-or-the-egg variety: When a party claims that it was fraudulently induced into entering into a contract that contains a choice-of-law clause but does not allege that the clause itself was the product of fraud, should the court decide the fraudulent inducement claim under the chosen law or instead under the otherwise applicable law? This question bears some resemblance to a question first encountered in the context of arbitration when a party asserts the invalidity of a contract that contains an arbitration clause but does not challenge the validity of the arbitration clause itself. Under the doctrine of separability or severability of arbitration clauses, courts have held that the arbitrator, rather than the court, must decide the contract’s validity.258 Some courts have extended this doctrine to forum selection clauses,259 but at least in the United States260 there is limited authority for extending the doctrine to choice-of-law clauses,261 and for good reason: in arbitration or forum selection clauses, the question is who should decide the validity, whereas in choice-of-law clauses, the question is under which law should one decide. These questions are not identical. In Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co.,262 the Florida Supreme Court held that the fraudulent inducement claim should be decided under the law designated in the choice-of-law clause. However, the court based its decision on the fact that the allegedly defrauded party chose to sue for damages rather than seek rescission of the contract and, in so doing, the court reasoned, that party “affirmed” the contract, including its choice-of-law clause. In Sack, a diversity jurisdiction case, the Eleventh Circuit felt bound to follow the Mazzoni Farms precedent. The court held that, by suing for damages, the plaintiff “implicated” the choice-of-law clause and this meant that the chosen law of Kansas should determine the fraudulent inducement claim.263 The court found that under Kansas law the plaintiff adequately pleaded a claim for fraudulent inducement. However, precisely because the plaintiff’s claim was viable under the chosen law, one would expect the court to examine more carefully whether this case was similar enough to Mazzoni Farms. In that case, the plaintiffs did not want their fraudulent inducement claim to be governed by the chosen law. Consequently, it was reasonable to not allow the plaintiff to affirm the contract and yet reject its choice-of-law clause. By contrast, the Sack plaintiff wanted the chosen law to govern its fraudulent inducement claim. Under these circumstances, the question of whether to apply the chosen law should not be left to the plaintiff’s election of remedies (damages versus rescission) without at least discussing the other party’s position regarding the choice-of-law clause. In H.J. Heinz, Co. v. Starr Surplus Lines Insurance, Co.,264 one of the parties sought rescission of the contract but the court refused to preclude that party from relying on the choice-of-law clause in the container contract. In this case, the plaintiff sued its insurer for wrongful denial of coverage and the defendant responded with a counterclaim for rescission of the insurance policy because of alleged material misrepresentations by the plaintiff. The policy contained a New York choice-of-law clause. The court asked: “[C]an [the insurer] claim that the Policy should be rescinded as if it never existed, while at the same time seek to have its choice-of-law provision apply to the dispute?”265 The insured answered in the negative, arguing that, “by taking both actions at once, [the insurer] ratified the Policy.”266 The court rejected the argument but instead of explaining its reasoning, simply pointed to the fact that the choice-of-law clause provided that the “validity” of the policy was to be governed by New York law.267 The court “decline[d] [the insured’s] invitation to render the Policy’s choice-of-law provision a nullity.”268 5. Scope of the Choice-of-Law Clause Although choice-of-law clauses have been part of American transactional practice for almost a century, one still finds clauses that are carelessly drafted. Examples include clauses choosing a law that invalidates the contract, in whole or in part,269 or clauses imposed by the strong party but inadvertently favoring the weak party. Perhaps the most common example is a clause providing that the contract shall be “interpreted and construed” under the law of State X. This clause is at the same time redundant and under-inclusive. It is redundant in that it uses two essentially synonymous or at least overlapping verbs, when one would suffice. It is under-inclusive in that it leaves out the most important verb “governed.” If such a clause is involved in litigation, the court will apply the law of State X to issues of interpretation and construction—if any. But for any other issues, the court will have to determine the applicable law on the basis of objective factors. One example from the 2017 cases is Arnone v. Aetna Life Insurance, Co.,270 in which the clause provided that the contract was to be “construed” under Connecticut law. The court held that this clause included Connecticut’s rules of “contract interpretation and contract construction”271 but was “insufficient to bind [the] court to apply the full breadth of Connecticut law, to the exclusion of another jurisdictions law, in fields other than the interpretation of the language in this contract.”272 To “construe,” said the court, means “to analyze (a sentence, clause, etc.) so as to show its syntactic construction and its meaning” and generally to “resolv[e] textual ambiguities.”273 But in this case, there were no ambiguities. The disputed issue was not the meaning of the contract but rather its effect, specifically whether an insurer could withhold from a New York employee injured in New York certain benefits provided by a New York statute. The narrow scope of the choice-of-law clause deprived the insurer or any argument that Connecticut law could displace the New York statute. 6. Choice-of-Law and Forum Selection Clauses Although forum selection (FS) clauses are ubiquitous, this Survey covers only those cases that present a choice-of-law question (even when the court does not detect or address it); namely, cases that raise the question of which law should govern the interpretation274 or enforceability275 of the FS clause. The Surveys of previous years have discussed several such cases.276 In addition, a recent article by this author offers an in-depth discussion of all the appellate cases decided until the end of 2016.277 For this reason, and because of the space limitations of this Journal, this year’s Survey does not discuss the 2017 cases, but instead categorizes their patterns and holdings and adds them to the findings of the abovementioned article. In short, the 2017 cases conform to the article’s finding and reinforce its conclusions. This subsection reproduces those findings and adds the holdings of the 2017 cases. Figure 1, below, depicts those findings. Figure 1. View largeDownload slide Law Governing Enforceability and Interpretation of FS Clauses. Figure 1. View largeDownload slide Law Governing Enforceability and Interpretation of FS Clauses. In summary, the position of American courts on what law governs FS clauses is as follows: (1) When the action is filed in the court chosen in the FS clause (Scenario 1), the courts apply the internal law of the forum state without any choice-of-law analysis. They apply that law both in interpreting the clause and in deciding whether it is enforceable. In 2017, nine appellate cases involved this scenario and all of them applied the law of the forum.278 (2) When the action is filed in a court other than the one designated in the FS clause and the contract does not contain a choice-of-law clause (Scenario 2), the courts apply the internal law of the forum state in determining whether the clause was enforceable. A few cases undertake a choice-of-law analysis, but only in interpreting the clause. In 2017, nine appellate cases involved this scenario and all of them applied the law of the forum. Five of them involved only questions of interpretation,279 three cases involved only questions of enforceability,280 and one involved both questions.281 (3) When the action is filed in a court other than the one designated in the FS clause and the contract does contain a choice-of-law clause (Scenario 3), the courts, by and large, apply: (a) the internal law of the forum state in determining whether the FS clause is enforceable; and (b) the law chosen in the choice-of-law clause (not the FS clause) in interpreting the FS clause. In 2017, seventeen appellate cases involved this scenario, of which: (a) eight cases involved only questions of enforceability and all of them applied the law of the forum;282 (b) six cases involved only questions of interpretation. Five of them applied the law of the state chosen in the choice-of-law clause,283 and one applied the law of the forum;284 and (c) five cases involved questions of both interpretation and enforceability. Two of them applied the law of the forum to both questions,285 and three cases applied forum law to enforceability and the chosen law to interpretation.286 7. Choice-of-Law and Arbitration Clauses Dillon v. BMO Harris Bank, N.A.287 is one of relatively few cases to follow, rather than pay lip service to, the Supreme Court’s “prospective waiver” promise in Mitsubishi Motors.288 In Mitsubishi, the Court stated that, “in the event the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies,” the Court “would have little hesitation in condemning the [arbitration] agreement as against public policy.”289ŠDillon presented this very scenario. It involved a “payday loan” agreement between a North Carolina borrower and a lending company owned by a federally recognized Indian tribe. Besides charging an interest rate of 440%, far in excess of North Carolina’s maximum rate of 12%, the agreement mandated arbitration “in accordance with the law of the Otoe-Missouria Tribe of Indians,” and instructed the arbitrator to “apply the laws of the Otoe-Missouria Tribe of Indians.”290 In addition, the agreement contained several overlapping provisions unambiguously intended to leave no escape to the borrower, including the following: This Agreement and the Agreement to Arbitrate are governed by . . . the laws of the Otoe-Missouria Tribe; . . . [T]his loan . . . is not subject to the provisions or protections of the laws of [the borrower’s] home state or any other state; . . . [N]o other state or federal law or regulation shall apply to this Agreement, its enforcement or interpretation; . . . [The tribe does not] consent to application of state or federal law to [it], to the loan, or this Agreement.291 In light of all of these categorical statements, the court had no difficulty concluding that the agreement “took the plainly forbidden step of prospectively waiving [the borrower’s] federal substantive rights.”292 It “almost surreptitiously waive[d] a potential claimant’s federal rights through the guise of a choice of law clause” and “flatly and categorically renounce[d] the authority of the federal statutes.”293 In this case (in contrast to Mitsubishi), there was “no uncertainty regarding the effect of the choice of law provision, because that provision effects an unambiguous and categorical waiver of federal statutory rights.”294 The court held that the choice-of-law clause was unenforceable for this reason, and because the clause was not severable from the arbitration agreement, that agreement was also unenforceable. 8. Insurance Contracts In Certain Underwriters at Lloyds, London v. Chemtura Corporation,295 the Delaware Supreme Court adopted the “uniform contract interpretation” approach (as opposed to the “site-specific approach”)296 in a case involving multistate insurance coverage for environmental contamination. The lower court, following the site-specific approach, which is based on section 193 of the Restatement (Second), applied Arkansas law to the contamination of an Arkansas site and Ohio law to the contamination of an Ohio site covered by the same insurance policy. Both of those laws favored the insured. The Delaware Supreme Court reversed. Following the uniform contract interpretation approach, which is based on section 188 of the Restatement, the court held that New York law, which favored the insurer, should govern coverage for both the Arkansas and Ohio sites. Both approaches have pluses and minuses,297 and the court did a good job in explaining the pluses of the uniform approach and the minuses of the site-specific approach. For example, the court stressed the advantages of applying a single law and the problems that arise when “identical policy language, granting identical coverage, [is] interpreted in different ways based on the happenstance of the geographic location of a particular incident of environmental damage.”298 However, the court’s own application of the uniform approach was not free from flaws. The most serious one299 was the court’s exclusive and excessive emphasis on the time of the initial insurance contract, which was signed in the 1950s. At that time, the insured, the Uniroyal rubber and chemical company, had its headquarters in New York, where it negotiated and purchased the policy through a New York broker. The policy covered Uniroyal’s many plants and operations throughout the United States. At that time, Uniroyal already owned the Ohio plant but acquired the Arkansas plant later (in the 1970s). At some point after purchasing the policy, Uniroyal moved its headquarters to Connecticut, but maintained offices in New York until 1986. The coverage dispute arose from gradual contamination that was discovered in the 1980s and was remediated by the EPA in the following years. In 2005, Uniroyal was acquired by Chemtura, the plaintiff in this case. The court began with the correct premise that the parties’ expectations are a very important factor in choosing the law governing contractual disputes. In ascertaining those expectations, the court reasoned, “the appropriate time period to consider is the time at which the contract was formed” and that “examining the contacts from the perspective of the time when the contract was formed most helps protect those expectations.”300 In this case, the contract was formed in the 1950s and, as the court noted, at that time the insured had not yet acquired the Arkansas plant301 (although it did own the Ohio plant). The court concluded as follows: Because Uniroyal and its successors obtained an overall set of insurance coverage addressing risks across all of its operations, and because New York was the principal place of business for Uniroyal at the beginning of the coverage and there were a number of contacts with New York over time after the beginning of the coverage, this Court determines that the most significant relationship among the parties for this insurance program and its contracts is New York, and so New York law should be applied to resolve this contract dispute.302 This is a very static way of looking at a long-term contractual relationship that lasted more than sixty years. For example, one assumes that during this long period the parties renewed the contract, perhaps annually, and added new plants and operations to coverage or agreed to other changes to coverage. None of these occurred without the insurer’s explicit consent. One also assumes that the insurer had full knowledge of the insured’s move from New York to Connecticut. The court did not discuss any of these factors and the effect they may have had in changing the parties’ initial expectations. Instead, the court apparently assumed that party expectations formed at the beginning of the relationship remain frozen in time. The court went as far as to say that, because at the time of the initial contract all involved states followed the lex loci contractus rule, the parties could not have expected the application of a law other than New York’s.303 Taken at face value, this argument would mean that the First Restatement would remain applicable to all long-term contracts formed before the choice-of-law revolution. In Brownlee v. Liberty Mutual Fire Insurance, Co.,304 the contaminated site was a residential building located in Maryland and the insurance policy covering it was issued and delivered to the building’s owner (the Salvation Army) in Georgia. The dispute centered on the interpretation of a pollution-exclusion clause in the policy, specifically, whether the clause excluded coverage for poisoning caused by lead-based paint. Georgia courts had previously interpreted identical clauses as excluding such coverage whereas Maryland courts had reached the opposite conclusion. The question was whether Georgia’s interpretation violated the public policy of Maryland, a state that continues to follow the lex loci contractus rule. Maryland’s highest court answered this question in the negative, holding that Maryland’s policy was not “strong enough to overcome Georgia’s pollution exclusion law.”305 A strong but lone dissent would have answered this question with a “resounding ‘yes.’”306 Noting that this case involved the health of Maryland children residing in the building, the dissent concluded that Maryland had “a strong public policy of protecting children from lead-based paint poisoning,” which justified deviating from the lex loci contractus rule.307 D. Choice-of-Law Methodology 1. Vacillation in Wyoming In Elworthy v. First Tennessee Bank,308 an otherwise unremarkable decision, the Wyoming Supreme Court stated matter of factly that, “[i]n analyzing choice of law questions, this Court uses the approach defined by the Restatement (Second) of Conflict of Laws.”309 The court then applied section 188 of the Restatement to a breach of contract claim and section 148 to a fraudulent misrepresentation claim. As authority for the statement that Wyoming follows the Restatement (Second), the court cited Boutelle v. Boutelle,310 a 2014 case involving the application of Wyoming’s borrowing statute to a Montana single-car accident involving two Wyoming domiciliaries. However, the Boutelle court specifically “decline[d] the plaintiff’s “invitation” to adopt the Restatement (Second)311 and reiterated the same court’s earlier statement from a 1995 case (which repeated a statement from a 1954 case) that it was “thoroughly established as a general rule that the lex loci delicti . . . is the law that governs.”312 In the 1995 case, Jack v. Enterprise Rent-a-Car Company of Los Angeles,313 the court applied the lex loci delicti and refused the Wyoming plaintiff’s invitation to apply California’s pro-plaintiff dangerous instrumentality rule.314 Indeed, looking at these cases without rosy glasses, there was little doubt about Wyoming’s commitment to the lex loci delicti rule. And this is why this Survey placed Wyoming in the traditional column for tort conflicts. As the federal court for the district of Wyoming stated in 2000, “Wyoming has a nearly uninterrupted history of using the situs of the injury to determine the proper substantive law in tort actions.”315 The same court made a similar statement in 2017, less than a month after the Wyoming Supreme Court issued its opinion in Elworthy.316 With regard to contract conflicts, Wyoming’s commitment to the lex loci contractus rule was equivocal. In the 1987 case Cherry Creek Dodge, Inc. v. Carter,317 the Wyoming Supreme Court cited favorably section 188 of the Restatement (Second), although the court relied mostly on the “reasonable relationship” language of Wyoming’s U.C.C. The Tenth Circuit Court of Appeals interpreted Cherry Creek as having adopted the Restatement (Second).318 But, in BHP Petroleum (Americas), Inc. v. Texaco Exploration and Production, Inc.,319 decided in 2000, the Wyoming Supreme Court distanced itself from the Restatement. The court acknowledged that “there is an indication that [in Cherry Creek] we were relying upon the Restatement (Second) Conflict of Laws § 188.”320 However, said the court, “we invoked the Restatement provision only as containing examples of factors to be considered in making the determination as to where the cause of action arose. . . . We do not understand that this Court has adopted the ‘most significant relationship’ test of Restatement (Second) Conflict of Laws § 188.”321 Two years later, in Act I, L.L.C. v. Davis,322 the same court referred to the Restatement (Second) “[a]s an example”323 of a method that employs an issue-by-issue analysis with the resulting possibility of dépeçage and “agree[d] that dépeçage is the proper approach to a conflict of law question.”324 However, the court did not apply the Restatement because in that case the laws of the two states produced the same outcome.325 Be that as it may, this is not the first time that a state supreme court reinterpreted its own precedents. But, in the final analysis, since a state’s highest court is the most authoritative interpreter of what that state law is, its pronouncements must be accepted without questioning. Because the Wyoming Supreme Court now says that it follows the Restatement (Second) in both tort and contract conflicts, we have modified accordingly the methodological table that follows. 2. The Methodological Table Table 2, 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. With the decision of the Wyoming Supreme Court discussed in the previous subsection, Wyoming now moves from the traditional to the Restatement (Second) column for both torts and contracts. This reduces the traditional jurisdictions to nine and ten, respectively, and raises accordingly the Second Restatement’s following to twenty-five and twenty-four jurisdictions, respectively. Table 2. Alphabetical List of States and Choice-of-Law Methodologies Followed. States  Traditional  Significant Contacts  Restatement (Second)  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          Dist. 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  North 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    South Carolina  T+C              South 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 = Torts    C = Contracts  States  Traditional  Significant Contacts  Restatement (Second)  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          Dist. 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  North 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    South Carolina  T+C              South 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 = Torts    C = Contracts  View Large Table 2. Alphabetical List of States and Choice-of-Law Methodologies Followed. States  Traditional  Significant Contacts  Restatement (Second)  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          Dist. 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  North 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    South Carolina  T+C              South 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 = Torts    C = Contracts  States  Traditional  Significant Contacts  Restatement (Second)  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          Dist. 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  North 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    South Carolina  T+C              South 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 = Torts    C = Contracts  View Large E. Statutes of Limitations 1. New Jersey’s New Switch In its 1973 decision in Heavner v. Uniroyal, Inc.,326 rendered at the height of the choice-of-law revolution, the New Jersey Supreme Court was the first court in the country to abandon the traditional procedural characterization of statutes of limitations. Instead, Heavner subjected limitation conflicts to the same choice-of-law analysis as other issues in the same case, and without any a priori reliance on the lex fori. Because at that time the New Jersey court was following an interest analysis for tort and contract conflicts, the court applied the same analysis to limitation conflicts. Applying the same analysis is not the same as applying the same law. Depending on the specifics of a case, the analysis may lead to the same or different laws for the various issues. For example, in Gantes v. Kason Corp.,327 which like Heavner was a products liability case, the court applied New Jersey’s statute of limitations while noting that Gergia law was would be applicable to other issues in the same case. By 2017, courts in seven other states have followed similar approaches: Arkansas, California, Delaware, Indiana, Michigan, Rhode Island, and Wisconsin.328 Since Heavner, the following developments occurred: • In 1982, the Commissioners on Uniform State Laws promulgated a new Uniform Act,329 which essentially treats limitation periods as substantive and, subject to some exceptions, subjects them to the law on which the claim is “substantively based” (hereafter lex causae). By 2017, seven states have adopted the Uniform Act: Colorado, Minnesota, Montana, Nebraska, North Dakota, Oregon, and Washington.330 • In 1988, the American Law Institute adopted a revised version of section 142 of the Restatement (Second). The revised section begins with an approach similar to Heavner insofar as it instructs courts to choose the law applicable to the limitations issue through the flexible principles of section 6 and without any a priori preference for either the lex fori or the lex causae. However, in the interest of judicial economy, the remainder of the revised section supplements this approach with two presumptive rules favoring the lex fori.331 By 2016, seven states had adopted the new section 142: Arizona, Florida, Idaho, Iowa, Massachusetts, Ohio, and West Virginia.332 As discussed below, in 2017, New Jersey joined this group. • In 2008, in P.V. v. Camp Jaycee,333 a tort conflict that did not involve statutes of limitations, the New Jersey Supreme Court abandoned its reliance on interest analysis and switched to the Restatement (Second). • Between 2008 and 2017, New Jersey courts followed three different paths in resolving statutes of limitations conficts: (a) continuing to follow Heavner, without referring to the Restatement;334 (b) applying the torts sections (145, 146, and 6) of the Restatement (Second);335 or (c) applying revised section 142.336 • In 2017, in McCarrell v. Hoffmann-La Roche, Inc.,337 the New Jersey Supreme Court completed the switch to the Restatement (Second) by adopting revised section 142 and abandoning the Heavner analysis. McCarrell was a products liability conflict between the laws of New Jersey and Alabama. The plaintiff was a domiciliary of Alabama who suffered injury in that state by a drug manufactured by the defendant, a New Jersey corporation that designed and manufactured the drug in New Jersey. The action was timely under New Jersey law but was barred by Alabama’s statute of limitations.338 New Jersey’s intermediate court held that the Alabama statute applied, barring the action. The court based its holding on the presumption of section 146 of the Restatement (Second) in favor of the state of injury. The court concluded that the plaintiff did not rebut the presumption because, not only was he “prescribed the allegedly defective product in Alabama,” but he also “purchased it there, and ingested it there.”339 The court recognized that a different outcome might follow under section 142 of the Restatement (Second) because that section “notably has a markedly different ‘default rule’ (i.e., the law of the forum) as compared with the default rule in Section 146 (the law of the place of injury).”340 However, the court refused to apply section 142, inter alia, because, more than forty years earlier, the New Jersey Supreme Court had rejected the old version of section 142. The New Jersey Supreme Court reversed and explicitly adopted the revised section 142. Thus the court “complet[ed] the conversion from the governmental-interest standard to the Second Restatement begun in Camp Jaycee.”341 The court reasoned that the approach of section 142 was preferable to the “malleable” Heavner approach because it would “channel judicial discretion to ensure a higher degree of uniformity and predictability,”342 even though in many cases, including this one, the two approaches would lead to the same result.343 The court also reasoned that the lex fori presumption of section 142 was preferable to the lex loci presumption of section 146 of the Restatement because: (1) it “places both [New Jersey’s] and out-of-state’s citizens on an equal playing field, thus promoting principles of comity”;344 and (2) it even “benefits New Jersey companies” when New Jersey has a shorter statute of limitations than the state of injury, because, in such a case, “section 142 ordinarily will not permit the claim to proceed.”345 Of course, McCarrell involved the converse scenario because New Jersey’s statute of limitations was longer than Alabama’s. Consequently, the case fell within subsection 2 of section 142, which provides that in the absence of “exceptional circumstances” that make such a result “unreasonable,” [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.346 Thus, the question was whether New Jersey had a “substantial interest” in allowing the action. If so, the court noted, “the inquiry ends, and New Jersey applies its statute of limitations,” (i.e., without examining whether the other state, Alabama in this case, has a more significant relationship), as long as there are no “exceptional circumstances” making that result “unreasonable.”347 The court found that New Jersey had “a substantial interest in deterring its manufacturers from developing, making, and distributing unsafe products” and that this interest “extend[ed] to protecting not just the citizens of [New Jersey], but also the citizens of other states, from unreasonably dangerous products originating from New Jersey.”348 Based on this finding, the court could “end the inquiry” without examining Alabama’s relationship or its interests in applying its law. Even so, the court continued, such an inquiry would not lead to applying the Alabama statute of limitations. The first reason was that Alabama’s relationship, although “significant,” was not “more significant” than that of New Jersey.349 The second reason was that Alabama did not have an interest in applying its shorter statute of limitations, which was “intended primarily to protect its manufacturers,” and thereby “denying one of its injured citizens the same relief an injured New Jersey citizen could obtain for the same wrong in a New Jersey court.”350 The court concluded by looking through the “small window of discretion” that section 142 provides for overriding this result, namely, asking whether there were any “exceptional circumstances” that would “make such a result unreasonable.”351 Finding no such circumstances, the court held that New Jersey’s statute of limitations governed, allowing the action to go forward.352 2. Summary of State Practices Table 3, below, shows the approaches followed in the various states with regard to limitation conflicts.353 As the Table indicates, the traditional approach continues to command a slight majority. It is followed in the twenty-eight jurisdictions listed in the first two columns. The first column (Traditional I) lists the jurisdictions that follow the traditional approach in both limitation conflicts and in either tort or contract conflicts. The second column (Traditional II) lists the jurisdictions that follow the traditional approach only in limitation conflicts.354 Table 3. Approaches to Limitation Conflicts. Traditional I  Traditional II  Restatement 2nd  Heavner analysis  Uniform Act  AlabamaGeorgiaKansasMarylandNew MexicoNorth CarolinaOklahomaSouth CarolinaTennesseeVirginia  AlaskaConnecticutDist. ColumbiaHawaiiIllinoisKentuckyMaineMississippiMissouriNevadaNew HampshireNew YorkPennsylvaniaSouth DakotaTexasUtahVermontWyoming  ArizonaFloridaIdahoIowaMassachusettsNew JerseyOhioWest Virginia  ArkansasCaliforniaDelawareIndianaMichiganRhode IslandWisconsin  ColoradoMinnesotaMontanaNebraskaNorth DakotaOregonWashington  10  18  8  7  7  Traditional I  Traditional II  Restatement 2nd  Heavner analysis  Uniform Act  AlabamaGeorgiaKansasMarylandNew MexicoNorth CarolinaOklahomaSouth CarolinaTennesseeVirginia  AlaskaConnecticutDist. ColumbiaHawaiiIllinoisKentuckyMaineMississippiMissouriNevadaNew HampshireNew YorkPennsylvaniaSouth DakotaTexasUtahVermontWyoming  ArizonaFloridaIdahoIowaMassachusettsNew JerseyOhioWest Virginia  ArkansasCaliforniaDelawareIndianaMichiganRhode IslandWisconsin  ColoradoMinnesotaMontanaNebraskaNorth DakotaOregonWashington  10  18  8  7  7  View Large Table 3. Approaches to Limitation Conflicts. Traditional I  Traditional II  Restatement 2nd  Heavner analysis  Uniform Act  AlabamaGeorgiaKansasMarylandNew MexicoNorth CarolinaOklahomaSouth CarolinaTennesseeVirginia  AlaskaConnecticutDist. ColumbiaHawaiiIllinoisKentuckyMaineMississippiMissouriNevadaNew HampshireNew YorkPennsylvaniaSouth DakotaTexasUtahVermontWyoming  ArizonaFloridaIdahoIowaMassachusettsNew JerseyOhioWest Virginia  ArkansasCaliforniaDelawareIndianaMichiganRhode IslandWisconsin  ColoradoMinnesotaMontanaNebraskaNorth DakotaOregonWashington  10  18  8  7  7  Traditional I  Traditional II  Restatement 2nd  Heavner analysis  Uniform Act  AlabamaGeorgiaKansasMarylandNew MexicoNorth CarolinaOklahomaSouth CarolinaTennesseeVirginia  AlaskaConnecticutDist. ColumbiaHawaiiIllinoisKentuckyMaineMississippiMissouriNevadaNew HampshireNew YorkPennsylvaniaSouth DakotaTexasUtahVermontWyoming  ArizonaFloridaIdahoIowaMassachusettsNew JerseyOhioWest Virginia  ArkansasCaliforniaDelawareIndianaMichiganRhode IslandWisconsin  ColoradoMinnesotaMontanaNebraskaNorth DakotaOregonWashington  10  18  8  7  7  View Large 3. Choice-of-Law Clauses and Statutes of Limitations A question that arises in cases whose outcome depends on a choice-of-law clause is whether the clause encompasses the chosen state’s statute of limitations. The answer depends largely on which of the above approaches to limitation conflicts the forum state follows. Specifically: • If the forum is in one of the twenty-eight states that continue to follow the traditional procedural characterization of statutes of limitations, the answer is likely to be no, because ordinarily, a choice-of-law clause does not encompass the chosen state’s procedural law.355 • If the forum is in one of the seven states that adopted the Uniform Act, which treats statutes of limitations as substantive, then, unless one of the Act’s exceptions applies, the answer must be yes because the Act mandates the application of the statute of limitations of the state whose law governs the merits of the claim. • If the forum is in one of the eight states that adopted the 1988 version of section 142 of the Restatement (Second) or one of the seven states that follow a Heavner type analysis, the answer can go either way. It will depend on several factors, such as whether the lex fori permits parties to contractually shorten or lengthen the limitation period, or whether the choice-of-law clause is phrased in broad enough terms susceptible of being interpreted as encompassing the chosen state’s statute of limitations. In the past, several cases belonging to this category, most of them litigated in California, have answered this question in the affirmative.356 In 2017, three case in this category have answered the above question in the affirmative357 and one in the negative.358 F. Recovering Nazi-Looted Artwork At the end of 2016, Congress passed and President Obama signed the Holocaust Expropriated Art Recovery (HEAR) Act, which established a six-year limitation for the recovery of artwork looted by the Nazis.359 The Act provides in pertinent part: Notwithstanding any other provision of Federal or State law or any defense at law relating to the passage of time, . . . a civil claim or cause of action against a defendant to recover any artwork or other property that was lost during the covered period [1/1/1933—12/31/1945] because of Nazi persecution may be commenced not later than 6 years after the actual discovery by the claimant or the agent of the claimant of—(1) the identity and location of the artwork or other property; and (2) a possessory interest of the claimant in the artwork or other property.360 The Act went into effect on December 16, 2016, and applies to cases pending at that time, or filed thereafter. By the end of 2017, appellate courts decided three cases involving this Act, of which Cassirer v. Thyssen-Bornemisza Collection Foundation361 is the most important from a choice-of-law perspective.362ŠCassirer is a fascinating case, implicating the laws of three foreign countries (Germany, Switzerland, and Spain) and two U.S. states (California and New York). With excellent lawyering on both sides, an erudite panel willing to dig deeply into foreign law produced a well-reasoned and comprehensive opinion. The story is all too familiar.363 In 1939 Germany, Lilly Neubauer (Lilly), a German Jew, was forced to “sell” a Pissarro painting to a Nazi dealer. In 1976, a Swiss collector (the Baron) bought the painting from a New York gallery and moved it to Switzerland. In 1988, he loaned a collection including the Pissarro painting to defendant TBC, a Spanish governmental entity and, in 1993, he sold the collection to the same entity for less than one third of its estimated market value. In 2005, Lilly’s great-grandchildren sued TBC in California federal court, seeking the return of the painting.364 In a decision rendered before the enactment of HEAR, the district court granted TBC’s motion for summary judgment. The court held that TBC acquired ownership of the painting through acquisitive prescription under article 1955 of the Spanish Civil Code of 1889, and that California’s special statute of limitation for Nazi-looted artwork, which was enacted in 2010, could not be applied retroactively without violating TBC’s due process rights.365 In 2017, the Ninth Circuit reversed after finding that genuine issues of material facts precluded summary judgment. Obviously this is not the end of the case, but the court resolved some important legal questions. First, the court ruled that the plaintiffs’ action was timely under the HEAR Act because the action was pending at the time of the Act’s enactment and had been filed within six years from the time the plaintiffs acquired knowledge of the whereabouts of the painting. However, the court rejected the plaintiffs’ argument that HEAR, which applies “[n]otwithstanding . . . any defense at law relating to the passage of time,”366 foreclosed the application of Spanish acquisitive prescription law, specifically article 1955 of the Civil Code. The court reasoned that article 1955 did not provide a defense “relating to the passage of time” but rather “a defense on the merits: that TBC has acquired title to the Painting based on Spain’s property laws.”367 This reasoning is questionable insofar as the acquisition of ownership through acquisitive prescription depends in part on the passage of time. While it is true that—unlike liberative prescription (i.e., statutes of limitations), which depends solely on the passage of time—the accrual of acquisitive prescription depends on additional requirements such as open, public, and peaceful possession, but the possession must still last for a specified period of time.368 Then the court ruled that, in an action brought under the HEAR Act in which the court’s jurisdiction is based on the Foreign Sovereign Immunities Act (FSIA), the applicable substantive law is to be selected under the Restatement (Second), which the Ninth Circuit follows in federal question cases. Applying the Restatement, the court found that, with regard to TBC’s ownership claim, Spain had the most significant relationship and its law should govern, thus leading to article 1955 of the Spanish Civil Code. Under that article (which provides that one who possesses a movable for three years in good faith or six years regardless of good faith acquires ownership of it), TBC would have acquired ownership because it openly possessed the painting for twelve years before the plaintiffs filed the action. However, article 1956 of the same code introduces an exception to article 1955 by extending the necessary period of possession (in this case to 2019) for cases involving stolen things that are possessed by an “encubridor.”369 Thus, TBC’s ownership claim depended on whether TBC qualified as an encubridor, a term defined by the Spanish Penal Code. When article 1956 was enacted (in 1889), the pertinent article of the Penal Code of 1870 defined an encubridor as one who knowingly benefits from stolen goods. However, the corresponding article of the new Penal Code of 1973 narrowed the definition of encubridor to one who, after the theft, aids the thief in avoiding prosecution. The trial court used this definition and held that TBC was not an encubridor. After extensive discussion of Spanish principles of statutory interpretation, the Ninth Circuit correctly concluded that the applicable definition was that of the 1870 Penal Code. Under that definition, the outcome depended on whether TBC knew that the painting was stolen when it bought it from the Baron. In turn, that was a triable issue of fact for which summary judgment was inappropriate. Next, the court examined a question that perhaps should have been answered first, namely, whether TBC’s seller, the Baron, had acquired ownership of the painting. For that question the court concluded that, under the Restatement (Second), the applicable law would be the law that would be applied by Spanish courts because the painting was already in Spain (as part of the loaned collection) when the sale took place. In turn, a Spanish court would look to the law of New York, where the Baron bought the painting. Because under New York law the sale of a stolen thing does not convey good title, the gallery that sold the painting to the Baron did not acquire ownership and neither did its transferee, the Baron. This left only one question: whether the Baron acquired ownership under Swiss law by openly possessing the painting in Switzerland for more than five years. However, that question depended on whether the Baron was in good faith at the time of the purchase. This too was a question of fact, which the trial court should resolve upon remand. G. Marriage and Divorce In Cohen v. Shushan,370 the question was whether a “reputed spouse,” as that term is understood under Israeli law, qualified as a surviving spouse under Florida’s succession law. For marriages entered into in Israel, Israeli law recognizes only religious marriages. The parties never married, but they cohabited for many years, holding themselves out as husband and wife, until the husband died. Under Israeli law, parties to such de facto marital unions are entitled to virtually all the rights that flow from marriage, including inheritance rights. In this case, the Israeli Inheritance Registrar ruled that the surviving “spouse” was entitled to half of the decedent’s property in Israel. Based on these facts, the Florida trial court analogized this relation to a common-law marriage, which Florida recognizes if formed in a state that permits such marriages. The court held that the reputed spouse qualified as a surviving spouse under Florida law. The court of appeals reversed, reasoning that “[t]he status of a reputed spouse relationship cannot be identical to the status of a married spouse’s relationship because, under Israeli law, reputed spouses are not married and can informally end their relationships at any time without even seeking a divorce.”371 The court acknowledged that “the line . . . between the [two] statuses . . . in Israel has drawn closer over time, perhaps to a point of near proximity, even near equivalency.”372 Nevertheless, the court said, “that line remains firmly entrenched” and to ignore that line would “diminish . . . the uniqueness of the marital status” and offend “a sovereign nation’s authority to define, for itself, the precise boundaries of marriage within its own jurisdiction.”373 Veliz v. Department of Labor and Industries374 also involved an informal marital union. This one was formed in Mexico, where the parties cohabited for several years holding themselves out as husband and wife. As the dissent noted, “[t]his method of marrying is common in Mexico where some couples cannot afford to marry and some individuals do not consider a ‘piece of paper’ to hold any significance in regard to marriage.”375 Nevertheless, Mexican law accords parties of such a union (sometimes called concubinage) most of the rights that flow from marriage. In this case, the husband was permanently disabled after an employment accident in Washington, and the question was whether he qualified as “married” for purposes of Washington’s worker’s compensation law. If yes, his disability benefits would be significantly higher. In a rather formalistic opinion, the Washington court answered the question in the negative. In Seng Xiong v. Vang,376 the parties were members of an indigenous ethnic group, the Hmongs, that lives primarily in Laos. While in a refugee camp in Thailand, the parties participated in a wedding ceremony conducted in accordance with traditional Hmong marriage rituals. A few years later, they both immigrated to the United States and lived together for several more years in Wisconsin, where the wife filed for divorce. The husband objected, contending that he was never validly married to the plaintiff. He presented evidence showing that Thailand considered the parties as illegal immigrants and that Thai law did not permit such immigrants to marry. The plaintiff argued that the marriage was valid because, although the parties were refugees in Thailand, they were “domiciled” in Laos and Laotian law recognizes traditional Hmong marriages. The court rejected the plaintiff’s argument, reasoning that the validity of a marriage is determined by the law of the place of celebration, not that of the parties’ domicile, and since the marriage was celebrated in Thailand, the marriage was not a valid legal marriage. The court also rejected the defendant’s argument that there was no marriage at all. The court held that the parties’ union qualified as a “putative” marriage, which the court defined as “a marriage which has been solemnized in proper form and celebrated in good faith by one or both parties, but which, by reason of some legal infirmity, is either void or voidable.”377 The court found that both parties were in good faith because they both believed that they were entering into a legal marriage. Despite his denials, this included the husband who, among other things, “paid four silver bars ‘for the dowry’ and fifteen silver coins ‘for the fees.’”378 The court affirmed the trial court’s grant of divorce and division of marital property. In Falah v. Falah,379 the parties were married in a Muslim ceremony in Israel and later moved to Ohio, where they lived together for several years, until they decided to return to Israel and get a divorce from a Sharia court. The Sharia court granted a divorce and ordered the husband to pay the wife her deferred dowry, amounting to $37,250. While the Sharia proceeding was pending, the wife returned to Ohio and filed a petition for divorce. Invoking the Sharia divorce, the husband filed a motion to dismiss the Ohio proceeding for lack of subject-matter jurisdiction. The trial court denied the motion and rendered a judgment purportedly giving comity to the Sharia judgment, but also granting divorce, dividing the parties’ assets and debts, and ordering the husband to pay permanent spousal support of $2,750 per month. The court of appeals affirmed. The court noted that, “had the [trial] court actually given comity to the Sharia Court’s decision, its decision would have been in error”380 because the husband did not submit a certificate issued by Israel’s civil authorities as required by Israeli law. However, the appellate court reasoned, the trial court did not actually give comity to the Sharia divorce. Instead, it “merely used the Sharia Court’s decision as additional evidence that the parties had decided to terminate their marriage.”381 Beyond that, the trial court “entered judgment independently of the Sharia Court’s decision.”382 In Tatsing v. Njume-Tatsing,383 another Ohio case, the parties were married in Cameroon and then moved to Ohio, where they had lived for several years when the husband filed for divorce. A few months later, the wife returned to Cameroon and filed a petition to declare the nullity of her marriage, without notifying or serving the husband. A Cameroon court issued a judgment declaring the marriage null on the ground that the wedding was not performed in the birthplace or domicile of at least one of the spouses, as required by Cameroon law. The wife then submitted the Cameroon judgment to the Ohio court “as evidence” that her Cameroon marriage was invalid and asked the court to dismiss the divorce proceeding on that ground. The court granted the motion and the court of appeals affirmed. The court noted that “despite the due process shortcomings in the Cameroon proceedings regarding notice to appellant,”384 the Cameroon judgment provided confirmation that the Cameroon marriage was invalid. However, the court explained, the Ohio court’s decision was based not on the Cameroon judgment as such, but rather on Cameroon law (as evidenced by this judgment). Under the lex loci celebrationis rule as understood by the court, a marriage that is invalid at the place of celebration is invalid “everywhere,”385 and thus was invalid in Ohio.386 In Lazar v. Kroncke,387 the issue was the effect of a divorce on the designation of a beneficiary in an individual retirement account (IRA). An Arizona husband had designated his then wife as the beneficiary of his IRA. The IRA plan, which the husband’s agreement incorporated, contained a California choice-of-law clause. The spouses divorced, but the husband never changed the beneficiary designation. When the husband died, his estate and his former wife both claimed the IRA funds. Under Arizona’s revocation on divorce (ROD) statute, the divorce automatically revoked the beneficiary designation, unless the account holder provided otherwise in “express terms.” Under California law, a divorce establishes a presumption of revocation, which one can rebut by extrinsic evidence. The wife argued that the California choice-of-law clause was an express term through which the account holder provided otherwise. The court rejected the argument and held that Arizona law governed the revocation of the beneficiary designation. H. Marital Property Matter of Marriage of South388 was a marital property dispute between Kansas spouses regarding, inter alia, a Florida summerhouse. Under Florida law, the spouses would own the house as joint tenants (or tenants by the entirety). Under Kansas law and a premarital agreement, they would be simple co-owners. Kansas follows the First Restatement, which calls for the application of the law of the situs, here Florida. However, the premarital agreement contained a Kansas choice-of-law clause, which the First Restatement did not authorize but Kansas precedents have recognized. The wife argued that the Kansas court should interpret the clause as choosing Kansas’s whole law, including its conflicts law, which would lead to Florida law under the Restatement’s situs rule. This was a novel argument for a court not used to dealing with choice-of-law clauses. However, after struggling a little, the court correctly rejected the argument and held that Kansas law governed. In Neivens v. Estrada-Belli,389 the parties entered into a premarital agreement in Tennessee, a separate property state. The agreement established a separate property regime and contained a Tennessee choice-of-law clause. The parties later moved to Louisiana, a community property state, and lived there for four years when the wife filed for divorce. Under Louisiana law, married persons domiciled in Louisiana are subject to the legal regime of community property, regardless of their domicile at the time of marriage or the place of celebration of the marriage. However, they may modify or opt out of the legal regime and adopt a separate property regime by a premarital agreement (or, with court approval, an agreement during marriage). Article 2329 of the Louisiana Civil Code provides that, “[d]uring the first year after moving into and acquiring a domicile in [Louisiana], spouses may enter into a matrimonial agreement without court approval.”390 In Neivens, the spouses did not enter into a new matrimonial agreement after moving to Louisiana. The husband invoked article 2329 to support his argument that the spouses were subject to the legal regime of community property. The court properly rejected the argument. The court pointed out that the conflicts articles of the Louisiana Civil Code require enforcement of choice-of-law clauses unless the chosen law violates a strong public policy of the state whose law would be applicable in the absence of choice. In this case, that state would be Louisiana. Because the choice of Tennessee law, which provided for a separate property regime, did not violate any Louisiana public policy, the choice-of-law clause was enforceable. However, the agreement also contained a provision waiving interim spousal support, and that provision was contrary to Louisiana public policy. That provision was severable and the court struck it out.391 In re Miller392 was a bankruptcy dispute implicating the laws of two community property states—Arizona and California. Arizona was the spouses’ domicile, but California had all the other contacts. A California company owned by the Arizona husband borrowed $5 million from a California bank for which the husband signed a guaranty in his individual capacity. Both the loan contract and the guaranty included California choice-of-law clauses. When the borrower defaulted, the bank sued the husband and his wife in Arizona federal court but obtained a judgment only against the husband. The bank registered the judgment in California and recorded a lien in the mortgage records of San Francisco, where the husband and his wife owned an apartment. Because the husband later filed for bankruptcy, this dispute was between the bankruptcy trustee and the lender. Under Arizona law, the apartment qualified as community property and the judgment lien was not enforceable against it (not even against the husband’s share of it) because the judgment was based on a guaranty signed only by the husband and guaranteeing a non-community loan. Under California law, the apartment would not be considered community property (it would be tenancy in common), but the lien would be enforceable against the husband’s share in the apartment. The Ninth Circuit held that California law governed and the lien was enforceable against the husband’s share. The court arrived at this result through a necessarily circuitous path. Because this was a bankruptcy case, the court had to use federal choice-of-law rules, which in this case pointed to the Restatement (Second). In turn, the Restatement referred this issue to “the law that would be applied by the courts of the situs,”393 thus pointing to California’s comparative impairment approach. In identifying the interests of the two states under this approach, the court found that: (1) Arizona had an interest “to protect one spouse against obligations undertaken by the other spouse without the first spouse’s knowledge and consent”;394 and (2) California had “significant interest in effectuating its policy regarding enforcement of judgments in favor of California creditors against real property located there,” and that policy “outweigh[ed] the policy of protecting family income.”395 The court concluded that California law should govern, reasoning, inter alia, that the application of Arizona law would “entirely”396 defeat California’s interest because the creditor would be left without any remedy, whereas the application of California would not entirely defeat Arizona’s interest because the lien would be enforced only against the share of the obligor spouse. First-Citizens Bank & Trust Company v. Morari397 involved the same states but the converse scenario. The spouses were domiciled in California, the mortgaged property was situated in Arizona, and the case was litigated in Arizona state court. Three California husbands signed personal guaranties for the payment of a loan obtained by their jointly owned company to finance the purchase of an Arizona hotel. When the company defaulted, the lender sued the husbands and their California wives for the payment of the debt. Under the law of California, but not Arizona, the wives would be liable even though they had not signed the guaranties. Treating this as a matter of contract rather than marital property, and following section 194 of the Restatement (Second), the court applied Arizona law and dismissed the action against the wives. Section 194 provides that a suretyship contract is governed by the law that governs the principal obligation, unless another state has a more significant relationship. The court found that Arizona law governed the principal obligation and California did not have a more significant relationship. In Shanghai Commercial Bank, Ltd. v. Kung Da Chang,398 the Washington Supreme Court held that a Hong Kong judgment was enforceable against the community property of a Washington debtor. The judgment was based on a multimillion-dollar loan agreement between a Hong Kong bank, on one hand, and the debtor and his father, on the other. The bank did not know that the debtor was domiciled in Washington because he negotiated the loan in Hong Kong and used his father’s Hong Kong address throughout the process. The agreement contained a Hong Kong choice-of-law clause. Under Washington law, the judgment was not enforceable against the community property, but under Hong Kong law, the judgment would be enforceable against assets that Washington would classify as community property. The court focused on the underlying loan agreement rather than on the judgment. The court found that, under both sections 187 and 188 of the Restatement (Second), Hong Kong law governed the agreement and its application would not violate Washington’s policy: “[W]hile Washington has an interest in generally protecting the welfare of community property interests of its residents, it would not serve those interests to permit debtors to hide behind or misuse community property status as a blanket protection of assets from legitimate foreign debt collection in all circumstances.”399 IV. Foreign Judgments and Awards A. Sister-State Judgments 1. Land in Another State Conflicts teachers are familiar with the 1909 case Fall v. Eastin,400 in which the Supreme Court held that the Full Faith and Credit Clause did not require Nebraska to recognize a Washington decree purporting to directly alter title to land in Nebraska. As the Court stated, a “court, not having jurisdiction of the res, cannot affect it by its decree.”401 The Court also noted that, because the Washington court had in personam jurisdiction over both parties, the court could “indirectly act upon real estate in another state, through the instrumentality of this authority over the person,”402 by ordering that person to convey the Nebraska land to the other party and, if need be, enforce the order through contempt proceedings. Although these are simple propositions, one still finds cases in which courts do not seem to understand them. The latest example is Ward v. Hahn,403 in which a Nebraska court (yes!) rendered a judgment purporting to directly alter title to land in Kansas. In the Kansas recognition proceeding, the trial court understood that the Full Faith and Credit Clause did not require enforcement of the Nebraska judgment but saw nothing wrong in enforcing it “under the principle of comity.”404 The Kansas Court of Appeals reversed, holding that enforcement of the Nebraska judgment violated Kansas public policy. The court noted that “[a]ny attempt by one state to give to its courts jurisdiction beyond its own limits of real property situated in another state is an usurpation of authority and all judicial proceedings in virtue thereof are void.”405 In this case, “[t]he Nebraska court lacked the power to directly affect the title of real property in Kansas, and its decree attempting to do so should not be given effect in Kansas based on comity.”406 2. Due Process In Tropic Leisure Corp. v. Hailey,407 the question was whether a default judgment rendered in a jurisdiction that did not allow the defendant to be represented by counsel in a small claims court was eligible for recognition under the Full Faith and Credit Clause. In this case, the small claims court of the United States Virgin Islands (USVI) rendered a judgment against a North Carolina defendant who did not appear in the USVI proceeding.408 In answering the above question, the North Carolina court began with the premise that the right to be represented by counsel is a constitutionally protected right rooted in the Due Process Clause, and that a judgment that denies this right outright is constitutionally infirm and thus ineligible for recognition in another state under the Full Faith and Credit Clause. However, in reviewing precedents from other states, the court concluded that this infirmity can be cured if the law of the rendering state: (1) allows removal of the case from the small claims court to a regular trial court where counsel representation is allowed; or (b) allows an appeal to a court where the parties can receive a de novo review of the factual findings of the small claims court and may be represented by counsel. USVI law did not allow either of these two options. For this reason, the North Carolina court concluded that the USVI judgment violated the defendant’s due process rights and was ineligible for recognition. 3. Statutes of Limitations In H & E Equipment Services, Inc. v. Cassani Electric, Inc.,409 the issue was the time limit within which an Arizona judgment was enforceable in Vermont. The Arizona judgment was rendered in 2001, but the judgment creditor renewed it twice in Arizona, in 2006 and 2011, within Arizona’s five-year statute of limitations. In 2015, the creditor sought to enforce the judgment in Vermont. A Vermont statute provided that actions for renewing or enforcing a judgment must be brought within eight years. Invoking this statute and focusing on the original Arizona judgment of 2001, the judgment debtor argued that the judgment was not enforceable in Vermont. The Vermont Supreme Court rejected the argument, holding that the renewed Arizona judgment (2011) was the controlling one and it was enforceable in Vermont within eight years from the renewal date. Patrick v. Hess410 involved enforcement of another Arizona judgment, this time in Florida. The creditor obtained the Arizona judgment in 2003 and registered it in Florida in 2006 under Florida’s [Uniform] Enforcement of Foreign Judgments Act. The creditor did not take any action until 2012 when it obtained a writ of execution in Florida. The debtor opposed enforcement, arguing that the judgment was no longer enforceable under Arizona’s five-year statute of limitations. The Florida Supreme Court rejected the argument and held the judgment enforceable. The court noted that a foreign judgment registered (and thus “domesticated”) in Florida under the Uniform Act must be treated as a Florida judgment, thus making irrelevant the Arizona statute of limitations. However, there was one more obstacle to enforcement: The Florida statute of limitations imposed a five-year limitation for the enforcement of foreign judgments and a twenty-year period for domestic judgments. The court held that, because the Arizona judgment was domesticated, it was subject to the twenty-year period, reversing the lower court’s holding to the contrary. B. Foreign-Country Judgments 1. Paternity and Public Policy In Parentage of A.H. v. Harlow H.,411 an Illinois court rejected a public policy challenge against a Thai judgment of paternity and support, and held that the judgment was entitled to recognition. The Thai court had held that an Illinois citizen and longtime Thailand resident was the father of triplets born in Thailand to his Thai companion following artificial insemination to which he had consented and contributed the semen. The father argued that Illinois public policy prohibited recognition because, at the time of the insemination, he was married to an Illinois woman. He based the argument on an Illinois statute that provided that “[t]he donor of the semen provided . . . for use in artificial insemination of a woman other than the donor’s wife shall be treated in law as if he were not the natural father of a child thereby conceived.”412 Although this was a direct quotation from the statute, the defendant had read it out of context. Properly interpreted, the quoted provision applied to situations in which the mother was married and the insemination occurred with her husband’s consent, not in cases such as this one in which the donor was married, the mother was unmarried, and the insemination occurred without his wife’s consent or even knowledge.413 2. Child Custody and Human Rights Coulibaly v. Stevance414 involved recognition of a Malian judgment granting custody of a Malian couple’s two children to the father. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) authorizes recognition of child custody judgments rendered in a foreign country under factual circumstances in substantial conformity with the Act’s jurisdictional standards. However, the Act also provides that recognition may be denied “if the child custody law of [the] foreign country violates the fundamental principles of human rights.”415 The mother, who brought the children to Indiana, invoked the above-quoted provision as the ground for not recognizing the Malian judgment and asked the court to modify it. The court held that the judgment was entitled to recognition and thus was not modifiable. The mother argued that Mali’s child custody law violated fundamental human rights because it operated in a way that discriminated against women. Specifically: (1) under Malia’s fault-based divorce law, courts tended to find women to be at fault, and (2) under child custody law, the spouse who is not at fault has priority in custody. However, the same law also requires the court to award custody to the other spouse if this would be in the best interest of the child. In this case, the Malian court found the mother to be at fault for divorce purposes, but the court carefully examined the best interest of the children before concluding that awarding custody to the father would best serve their interests. The Indiana court concluded that “Mali’s child custody law as applied in this case did not violate fundamental principles of human rights and was in fact in substantial conformity with Indiana’s child custody law.”416 The mother also pointed to the prevalence of the practice of female genital mutilation (FGM) in Mali and the absence of a law specifically prohibiting it.417 The court noted that although “FGM is itself a human rights violation,” the court was not certain that “a country’s failure to pass a law specifically prohibiting the practice constitutes a violation of fundamental principles of human rights.”418 In any event, said the court, its scrutiny was “limited to Mali’s child custody law” and did not extend to “other aspects of its legal system, including the law (or absence of law) concerning FGM.”419 The court concluded: “Whatever we might think about the wisdom of Mali’s marital and custody laws . . . we simply cannot say that they are so utterly shocking to the conscience or egregious as to rise to the level of a violation of fundamental principles of human rights.”420 3. Child Support The Uniform Interstate Family Support Act (UIFSA) of 1996 provided that a support order of a foreign country is eligible for enforcement if that country “has enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under the Act.”421 In Cima-Sorci v. Sorci,422 which involved an Italian support judgment, a California court held that the burden of proving that Italy did not meet the requirements of the above-quoted provision fell on the California obligor who contested the enforcement of the judgment rather than on the Italian obligee who sought its enforcement. The obligor also argued that Italy did not meet these requirements because the Italian laws and procedures for support matters were very different from California’s. The court pointed out that the question was whether the foreign country had similar laws and procedures “for issuance and enforcement of support orders,” as distinguished from its “laws and procedures related to the calculation of support.”423 The court rejected the obligor’s argument, after finding that Italy’s laws and procedures allowed for recognition and enforcement of California child support orders. 4. Procedural Due Process Section 4(c)(8) of the Uniform Foreign-Country Money Judgments Recognition Act (UFCMJRA) provides that a court “need not” recognize a foreign-country judgment if “[t]he specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.”424 In Midbrook Flowerbulbs Holland B.V. v. Holland America Bulb Farms, Inc.,425 the judgment debtor invoked this provision as the ground on which the court should deny recognition to a Dutch judgment. The debtor argued that this provision incorporated the standards of the Due Process clauses of the Fifth and Fourteenth Amendments. The court rejected the argument, concluding instead that the Act contemplated a lower standard of “fundamental fairness.”426 The court provided adequate authority for this conclusion but also noted that imposing too high a bar (such as the American due process standard) “would encourage foreign powers to condition the enforcement of our judgments on the satisfaction of their procedural requirements, which could be just as onerous as our own.”427 The court then examined the debtor’s specific arguments regarding the alleged defects of the Dutch judgment. The debtor claimed that: (1) the Dutch courts had denied him access to all of his opponent’s records; and (2) the Amsterdam Court of Appeals did not defer to the trial court’s assessment of the credibility of witnesses. The court found that, at least with regard to the first item, the debtor’s claims were not entirely accurate. In any event, the court concluded that neither of the two defects, if proven, would amount to denial of fundamental fairness. The court also stated that the Dutch judgment seemed to comply even with the more exacting standards of American due process. 5. Service of Process Louis Dreyfus Commodities Suisse, SA v. Financial Software Systems, Inc.428 involved an English default judgment, which the judgment creditor sought to enforce against a Pennsylvania debtor. The English court had jurisdiction based on a forum selection clause conferring exclusive jurisdiction, but the debtor opposed enforcement of the judgment on the ground that it was obtained without proper service. Specifically, service was effected by a private process server, whereas Pennsylvania law required service to be effected by the sheriff. The court rejected the debtor’s objections because (1) the debtor had actual knowledge of the filing of the English lawsuit; (2) English law permitted service by a private process server; and (3) the Hague Convention on Service Abroad does not prohibit such service. Specifically, the Convention provides that service by a method prescribed by the internal law of the “State addressed” is sufficient, and in this context the “State addressed” is the United States, not Pennsylvania. Because federal law does not require service to be effected by the sheriff, neither does the Convention. Consequently, the service of process was valid. In any event, even if Pennsylvania law was the controlling law, the failure to meet the “technical requirements” for service of process should not alone defeat recognition, at least when the defendant had agreed to submit to the jurisdiction of the foreign court by signing a forum selection clause and did receive actual and timely notice of the impending foreign proceeding. 6. Jurisdiction in the State of Origin In CE Design, Ltd. v. HealthCraft Products, Inc.,429 a case involving an Ontario declaratory judgment, the judgment debtor appeared in the Ontario proceeding and extensively argued that Ontario lacked jurisdiction. After the Ontario court ruled against the debtor on the jurisdictional issue, the debtor stopped participating in the proceeding and the court issued a judgment on the merits. The debtor then opposed the recognition of the Ontario judgment in Illinois. The Illinois court held that the doctrine of res judicata barred re-litigation of the Ontario court’s jurisdiction and that the judgment was enforceable. In the court’s words: A party cannot be permitted to merely file a special appearance, challenge that court’s jurisdiction, and expect the lawsuit to hang in limbo! A reasonable expedition of the administration of justice cannot be so thwarted. . . . [The debtor] advanced multiple jurisdictional arguments before the Ontario court, and after it lost, it pursued no further action in the Ontario court to challenge or reverse that ruling; it cannot now look to Illinois to relitigate the issue of Ontario’s jurisdiction.430 7. Judgment “Contrary” to Arbitration Agreement Maryland’s version of the Uniform Foreign Money-Judgments Recognition Act (UFMJRA) provides that a foreign judgment “need not be recognized if: . . . [t]he proceeding in the foreign court was contrary to an agreement between the parties under which the dispute was to be settled out of court.”431ŠIraq Middle Market Development Foundation v. Harmoosh432 involved interpretation of this clause, specifically the word “contrary.” After securing a judgment in Iraq, the creditor sought to have it recognized in Maryland. The debtor contended that the judgment was not entitled to recognition because the underlying dispute arose from a contract requiring the parties to submit to arbitration. The district court agreed with the debtor, but the Fourth Circuit reversed. The court reasoned that the debtor had waived his right to arbitrate by failing to raise it at the Iraqi trial court, before which he appeared and defended on the merits. Because the right to demand arbitration was waivable under both Iraqi and Maryland law, and the debtor had waived it, the Iraqi judgment was not “contrary” to the arbitration agreement and thus was enforceable in Maryland. As the court put it, it was unlikely that the Maryland legislature “intended to give courts discretion to enforce contractual rights the parties themselves decided to waive . . . [or] to ignore the judgment of a foreign court when the parties voluntarily resolved their dispute before that court.”433 8. Statute of Limitations Banque De Tahiti v. Kurth434 involved a French Polynesian judgment, which the judgment creditor sought to have recognized and enforced in Hawaii. The judgment debtor filled several objections and counterclaims and the ensuing litigation lasted six years without final resolution. Ten years after the creditor initiated recognition proceedings, the debtor filed a motion to dismiss based on Hawaii’s ten-year statute of limitations for the enforcement of judgments. The creditor argued that the ten-year period did not begin to run because the Hawaii court had never recognized the judgment and recognition is a prerequisite to enforcement. After a long discussion, which did not at all consider the effect of the six-year litigation in suspending the running of time, the court agreed with the creditor and held the statute inapplicable.435 C. Foreign Arbitration Awards Belize Bank, Ltd. v. Government of Belize436 involved an arbitral award rendered against Belize by the London Court of International Arbitration (LCIA). Belize argued that recognition of the award would violate the public policy of the United States. Specifically, Belize contended that the arbitrator appointed on its behalf by the LCIA was not impartial because one of his colleagues in the same Solicitors Chambers had previously represented a party associated with Belize’s opponent. Under the Federal Arbitration Act (FAA), a court may vacate a domestic arbitration award “where there was evident partiality or corruption in the arbitrators.”437 However, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which governs recognition of foreign awards, does not have a similar provision. The only provision available to Belize was Article V(2)(b) of the Convention, which provides that a court may refuse recognition of an award that is contrary to its public policy. Belize argued that certain cases involving partners serving in the same American law firm were sufficiently analogous and should control the outcome in this case. The court explained the difference between American law firms and English Chambers,438 rejected the analogy,439 and dismissed Belize’s whole argument, as follows: Belize has failed to allege conduct that would warrant denial of enforcement under our cases interpreting [the FAA] standard. But even if the alleged conduct did satisfy the FAA standard, we would be unable to deny enforcement in this case. . . . [W]e may refuse to enforce this international arbitration award only on the grounds explicitly set forth in Article V of the New York Convention, . . . and the only potentially relevant ground is that enforcement of the arbitration award would be contrary to the public policy of the United States. . . . [T]his requires Belize to show that [the arbitrator’s] participation in the arbitration violated this country’s most basic notions of morality and justice.440 The court held that recognition of the LCIA award “would not violate the United States’ most basic notions of morality and justice.”441 In Getma International v. Republic of Guinea,442 the D.C. Circuit affirmed the district court’s refusal to recognize a foreign arbitral award against Guinea that was set aside by the Common Court of Justice and Arbitration (CCJA), a supranational court for certain African countries, including Guinea. The CCJA qualified as a “competent authority” under Article V(1)(e) of the New York Convention, which provides that a court may refuse to enforce a foreign award if “a competent authority” has set it aside under the law of the country in which the award was made. American courts generally refuse to second-guess a competent authority’s annulment of an arbitral award in the absence of “extraordinary circumstances.”443 The court stressed that this is a high standard. A mere showing that the annulment of the award was erroneous, or that it merely violates American public policy is not enough. Instead, the annulment must violate the “most basic notions of morality and justice.”444 The court found that this case did not meet this standard. In Thai-Lao Lignite (Thailand), Co. v. Government of Lao People’s Democratic Republic,445 the “competent authority” in Malaysia, the “primary jurisdiction,” rendered a judgment setting aside a Malaysian arbitral award against Laos. However, the petition that led to that judgment was filed after the expiration of the period for challenging the award, and the judgment was rendered after the party that prevailed in the award (Thai-Tao) obtained judgments in a federal district court in New York, and later in England, ordering enforcement of the award. Invoking the Malaysian judgment, Laos filed a motion in the New York federal court to vacate its earlier judgment under Federal Rule of Civil Procedure 60(b)(5), which permits district courts to “relieve a party . . . from a final judgment” when the judgment “is based on an earlier judgment that has been reversed or vacated.”446 The district court vacated the award and the Second Circuit affirmed. The court examined the interrelation between federal rule 60(b)(5) and Article V(1)(e) of the New York Convention. The court noted that, although Article V(1)(e) uses discretionary language allowing a court to enforce an award that has been set aside in the primary jurisdiction, in fact, “the scope of that discretion is ‘constrained by the prudential concern of international comity.’”447 In deciding whether to enforce such an award, a court should give effect to the judgment of the primary jurisdiction, “unless enforcement of that judgment would offend the public policy of the [United States].”448 The “strong presumption in favor of following the primary jurisdiction’s ruling” is rebutted only when necessary “to vindicate fundamental notions of what is decent and just in the United States.”449 Under these principles, the Second Circuit concluded that the district court did not exceed its discretion in vacating its earlier judgment that had held the award enforceable. In Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela450 and Micula v. Government of Romania,451 the Second Circuit reversed lower court judgments granting recognition to foreign arbitral awards against foreign sovereigns through an ex parte procedure that bypassed the requirements of the Foreign Sovereign Immunities Act (FSIA). Both awards had been rendered by the International Centre for Settlement of Investment Disputes (ICSID). The court held that the FSIA provides the exclusive mechanism for enforcing ICSID awards against foreign sovereigns and summary ex parte proceedings are incompatible with the FSIA, since they are, by nature, conducted without the required service on the foreign state.452 Completed on December 31, 2017 S.C.S, Salem, OR Footnotes 1. The previous thirty 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); 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 (2009); 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). 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 who 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. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984); Asahi Metal Indus., Co. v. Superior Court, 480 U.S. 102 (1987); Burnham v. Superior Court, 495 U.S. 604 (1990). 6. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011), discussed in Symeonides, 2011 Survey, supra note 1, at 298–99. 7. See Daimler AG v. Bauman, 134 S. Ct. 746 (2014), discussed in Symeonides, 2014 Survey, supra note 1, at 303–05. 8. See J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011), discussed in Symeonides, 2011 Survey, supra note 1, at 299–308. 9. See Walden v. Fiore, 134 S. Ct. 1115 (2014). 10. 137 S. Ct. 1549 (2017), discussed in Note, Civil Procedure—Personal Jurisdiction—BNSF Railway Co. v. Tyrrell, 131 Harv. L. Rev. 333 (2017). 11. 137 S. Ct. 1773 (2017). 12. 45 U.S.C. § 56. 13. Daimler, 134 S. Ct. at 761 n.19. 14. BNSF, 137 S. Ct. at 1559 (quoting Daimler, 134 S. Ct. at 761, 762 n. 20). 15. Id. at 1554. 16. Id. at 1559. 17. Id. at 1561–62 (Sotomayor, J., concurring in part and dissenting in part). 18. Id. at 1560. 19. The two cases were argued on the same day. 20. This was not a class action, which could be removed to federal court under the Class Action Fairness Act (CAFA). In fact, the plaintiffs did their utmost to avoid removal to federal court by: (1) filing their actions in groups of less than 100, so as to avoid removal under CAFA; and (2) joining a nondiverse defendant (a California distributor). 21. Bristol-Myers, 137 S. Ct. at 1780 (quoting Daimler, 134 S. Ct. at 754). 22. Id. at 1781 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). 23. Id. 24. Id. 25. Id. at 1782. 26. Id. at 1783. 27. Id. at 1784 (Sotomayor, J., dissenting). See also id. at 1789 (noting that the Court’s decision would eliminate nationwide mass actions in any state other than those in which a defendant is “essentially at home” and “make it impossible to bring certain mass actions at all,” such as “a nationwide mass action against two or more defendants headquartered and incorporated in different States,” or one brought “against a defendant not headquartered or incorporated in the United States”). 28. Id. 29. The non-California plaintiffs tried to game the system by: (1) suing in an inconvenient but plaintiff-friendly state court; (2) seeking all the advantages of aggregate litigation in state court; and (3) avoiding the disadvantages of litigation in an unfriendly federal court by using all available devices to avoid removal to federal court (through CAFA or MDL). In turn, the defendant challenged the California court’s jurisdiction not because it was inconvenient to litigate those claims in California, but because it wanted to avoid litigation in an unfriendly state court. In other words, the dispute in Bristol-Myers had little to do with location or convenience and everything to do with the advantages and disadvantages of litigating in state or federal court. In light of the established jurisdiction doctrine and the Court’s present composition and disposition, the outcome in Bristol-Myers did not come as a surprise. 30. From this year’s literature on jurisdiction, see, e.g., P.J. Borchers, Extending Federal Rule of Civil Procedure 4(K)(2): A Way to (Partially) Clean up the Personal Jurisdiction Mess, 67 Am. U. L. Rev. 413 (2017); A.-A.P. Bruhl, The Jurisdiction Canon, 70 Vand. L. Rev. 499 (2017); P. Heinz, Comment, When Is It Necessary for Corporations to Be Essentially at Home? An Exploration of Exceptional Cases, 51 U. Rich. L. Rev. 1179 (2017); N. D’Angelo, Emerging from Daimler’s Shadow: Registration Statutes as a Means to General Jurisdiction over Foreign Corporations, 91 St. John’s L. Rev. 211 (2017); S. Dodson, Jurisdiction and Its Effects, 105 Geo. L.J. 619 (2017); K. Florey, What Personal Jurisdiction Doctrine Does—And What It Should Do, 43 Fla. St. U. L. Rev. 1201 (2016); W.G. Lambert, The Necessary Narrowing of General Personal Jurisdiction, 100 Marq. L. Rev. 375 (2016); J. Lingwall & C. Wray, Fraudulent Aggregation: The Effect of Daimler and Walden on Mass Litigation, 69 Fla. L. Rev. 599 (2017); D.H. Moore, Pennoyer Was Right, 95 Tex. L. Rev. 124 (2017); C.B. Robertson & C.W. Rhodes, The Business of Personal Jurisdiction, 67 Case W. Res. L. Rev. 775 (2017); S.E. Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249 (2017); G.L. Skinner, Expanding General Personal Jurisdiction over Transnational Corporations for Federal Causes of Action, 121 Penn St. L. Rev. 617 (2017); P.D. Szigeti, The Illusion of Territorial Jurisdiction, 52 Tex. Int’l L.J. 369 (2017); T.B. Wolff, Choice of Law and Jurisdictional Policy in the Federal Courts, 165 U. Pa. L. Rev. 1847 (2017). 31. 864 F.3d 751 (D.C. Cir. 2017), reh’g en banc denied (Oct. 3, 2017). 32. See Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214; “Flatow Amendment” of 1996, Pub. L. No. 104-208, § 589, 110 Stat. 3009, 3009–172 (1996) (codified at 28 U.S.C. § 1605 note). For a recent discussion of the AEDPA, see P.J. Fuster, Comment, Taming Cerberus: The Beast at AEDPA’s Gates, 84 U. Chi. L. Rev. 1325 (2017). 33. See National Defense Authorization Act for Fiscal Year 2008 (NDAA) Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338–44 (2008) (codified at 28 U.S.C. § 1605A)) (repealing 28 U.S.C. § 1605(a)(7) and replacing it with a new “terrorism exception to the jurisdictional immunity of a foreign state”). 34. See 28 U.S.C. § 1605A. To invoke the exception, the foreign state must have been “designated as a state sponsor of terrorism at the time the act . . . occurred” or later, “as a result of such act.” Id. § 1605A(a)(2)(A)(i)(I). In Vera v. Republic of Cuba, 867 F.3d 310 (2d Cir. 2017), the act (the assassination of a Cuban exile) occurred in 1976, and Cuba was designated as a state sponsor of terrorism in 1982. However, the plaintiff was unable to prove that this designation was the result of the 1976 assassination (the record suggested other reasons). Consequently, the Second Circuit held that the district court lacked jurisdiction. 35. 2017 WL 5907433 (D.C. Cir. 2017). 36. Id. at *4. 37. Id at *5. 38. Id. at *6. 39. 28 U.S.C. § 1605(a)(5). 40. Id. § 1603(c) (emphasis added). 41. 851 F.3d 7 (D.C. Cir. 2017), reh’g en banc denied (June 6, 2017). 42. Id. at 10 (internal quotation marks and brackets omitted). 43. Id. 44. 137 S. Ct. 1312 (2017). 45. 28 U.S.C. § 1605(a)(3). 46. Bolivarian Republic, 137 S. Ct. at 1316. 47. Id. See also id. at 1324 (“Where, as here, the facts are not in dispute, those facts bring the case within the scope of the expropriation exception only if they do show (and not just arguably show) a taking of property in violation of international law. Simply making a nonfrivolous argument to that effect is not sufficient.”). 48. Id. at 1324 (internal quotation marks omitted). 49. Id. at 1316. 50. Id. at 1321. 51. Id. For another action against Venezuela but involving a different FSIA exception, see DRFP, L.L.C. v. Republica Bolivariana de Venezuela, 2017 WL 3635530 (6th Cir. 2017) (holding that the plaintiff failed to meet the requirements of the commercial activity exception; also inviting Venezuela to apply for attorney fees and costs). For another case holding that the plaintiff did not meet the requirements of the commercial activity exception in an action against Peru, see MMA Consultants 1, Inc., v. Republic of Peru, 2017 WL 6463128 (2d Cir. 2017). For a case holding that the foreign government had waived its immunity by expressly agreeing to such a waiver in a multimillion dollar lease of telecommunications equipment, see GDG Acquisitions, L.L.C. v. Government of Belize, 849 F.3d 1299 (11th Cir. 2017). 52. 859 F.3d 1094 (D.C. Cir. 2017). 53. 28 U.S.C. § 1604. 54. Id. § 1605(a)(3). 55. U.S. Const. amend. V. 56. See Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82 (D.C. Cir. 2002); Ungar v. Palestine Liberation Org., 402 F.3d 274 (1st Cir. 2005). 57. 851 F.3d 45 (D.C. Cir. 2017), reh’g en banc denied (May 16, 2017), cert. filed, No. 17-508 (Sept. 28, 2017), docketed (Oct. 4, 2017). 58. The plaintiffs were injured in a machine-gun attack in the West Bank. The sued the Palestinian authority under the Antiterrorist Act (18 U.S.C. § 2333). 59. The plaintiffs based their assertion of jurisdiction over the defendant not on Federal Rule of Civil Procedure 4(k)(1), which directs courts to determine whether a state court would have personal jurisdiction under the Fourteenth Amendment, but rather on rule 4(k)(2). The latter rule permits a federal court to exercise personal jurisdiction if the claim arises under federal law and the defendant is not subject to jurisdiction in any state court of general jurisdiction, provided that the exercise of jurisdiction “is consistent with the United States Constitution and laws.” The latter inquiry is governed by the Fifth Amendment’s Due Process Clause. 60. Livnat, 851 F.3d at 54. See also Bristol-Myers Squibb, Co. v. Superior Court of California, 137 S. Ct. 1773, 1784 (2017) (“[W]e leave open the question whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court.”). 61. Livnat, 851 F.3d at 56. 62. Id. at 57. 63. See id. 64. 860 F.3d 1193 (9th Cir. 2017). 65. The court did not discuss the basis of California’s jurisdiction. 66. Cooper, 860 F.3d at 1200. 67. Id. at 1209. 68. 861 F.3d 241 (D.C. Cir. 2017), cert. denied, 2017 WL 4339268 (U.S. Nov. 27, 2017). 69. Id. at 246 (internal quotation marks omitted). 70. Id. at 247. 71. Id. at 250 (quoting El–Shifa Pharmaceutical Indus., Co. v. United States, 607 F.3d 836, 851 (D.C. Cir. 2010)). 72. Id. (Brown, J., concurring). 73. Id. at 252. 74. 137 S. Ct. 2003 (2017). 75. See Symeonides, 2014 Survey, supra note 1, at 305–10. 76. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 77. See Hernandez v. United States, 757 F.3d 249 (5th Cir. 2014). 78. See Hernandez v. United States, 785 F.3d 117 (5th Cir. 2015). 79. Hernandez, 137 S. Ct. at 2007. 80. See id. (referring to Ziglar v. Abbasi, 137 S. Ct. 1843 (2017)). For a discussion of this case, see Note, Constitutional Remedies—Bivens Actions—Ziglar v. Abbasi, 131 Harv. L. Rev. 313 (2017). For a more general discussion of the extraterritorial reach of Due Process, see N.S. Chapman, Due Process Abroad, 112 Nw. U. L. Rev. 377 (2017). 81. 848 F.3d 880 (9th Cir. 2017). 82. This case did not involve Vice President Cheney’s accidental shooting of his hunting partner. 83. Saleh, 848 F.3d at 884. 84. See 28 U.S.C. § 2679, formally titled as Federal Employees Liability Reform and Tort Compensation Act of 1988, and commonly known as the “Westfall Act.” The Act does not provide immunity to an official from a suit “brought for a violation of the Constitution of the United States.” Id. § 2679(b)(2)(A). The plaintiff did not invoke this provision. 85. Saleh, 848 F.3d at 890. 86. Id. 87. Id. at 891 (quoting Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498, § 3(a)). 88. Id. at 893. The court cited one case, Siderman de Blake v. Argentina, 965 F.2d 699 (9th Cir. 1992), which however is arguably distinguishable. 89. 864 F.3d 63 (2d Cir. 2017). 90. Id. at 82. 91. Id. at 81 (internal quotation marks omitted). 92. Id. at 82. From this year’s literature on the issues raised by this case, see N. Modi, Note, Toward an International Right Against Self-Incrimination: Expanding the Fifth Amendment’s “Compelled” to Foreign Compulsion, 103 Va. L. Rev. 961 (2017). 93. 855 F.3d 53 (2d Cir. 2017), cert. granted, U.S. v. Microsoft Corp., 2017 WL 2869958 (U.S. Oct. 16, 2017). 94. See Symeonides, 2016 Survey, supra note 1, at 12–13. 95. See U.S. v. Microsoft Corp., 2017 WL 2869958 (U.S. Oct. 16, 2017). 96. 165 A.3d 711 (N.H. 2017). 97. From this year’s literature on this and related subjects, see M. McGlynn, Competing Exclusionary Rules in Multistate Investigations: Resolving Conflicts of State Search-and-Seizure Law, 127 Yale L.J. 406 (2017); M. McKenna, Note, Up in the Cloud: Finding Common Ground in Providing for Law Enforcement Access to Data Held by Cloud Computing Service Providers, 49 Vand. J. Transnat’l L. 1417 (2016). See also K.E. Eichensehr, Data Extraterritoriality, 95 Tex. L. Rev. 145 (2017). 98. 845 F.3d 184 (5th Cir. 2017), cert. denied, 138 S. Ct. 134 (2017). 99. 28 U.S.C. § 1350. From this year’s literature on the ATS and related issues, see, e.g., L. Bell, Boundary Dispute: The Presumption Against Extraterritoriality as Judicial Nondelegation, 2017 B.Y.U. L. Rev. 427 (2017); V.G. Curran, Harmonizing Multinational Parent Company Liability for Foreign Subsidiary Human Rights Violations, 17 Chi. J. Int’l L. 403 (2017); N.R. Davidson, Shifting the Lens on Alien Tort Statute Litigation: Narrating US Hegemony in Filártiga and Marcos, 28 Eur. J. Int’l L. 147 (2017); C.L. Allen, Note, Aiding and Abetting in Torture: Can the Orchestrators of Torture Be Held Liable?, 44 N. Ky. L. Rev. 149 (2017); M.J. Carey, Note, How Concerned Should We Be? The Conundrum of Kiobel’s Touch and Concern Test and Corporate Liability Under the Alien Tort Statute, 49 Suffolk U.L. Rev. 451 (2016); K. Tawfik, Note, To Touch and Concern the United States with Sufficient Force: How American Due Process and Choice of Law Cases Inform the Reach of the Alien Tort Statute After Kiobel, 37 Mich. J. Int’l L. 539 (2016); Note, Clarifying Kiobel’s “Touch and Concern” Test, 130 Harv. L. Rev. 1902 (2017); A.I. Parrish, Fading Extraterritoriality and Isolationism? Developments in the United States, 24 Ind. J. Glob. Legal Stud. 207 (2017); S.J. Schnably, The Transformation of Human Rights Litigation: The Alien Tort Statute, the Anti-Terrorism Act, and JASTA, 24 U. Miami Int’l & Comp. L. Rev. 285 (2017); G.L. Skinner, Expanding General Personal Jurisdiction over Transnational Corporations for Federal Causes of Action, 121 Penn St. L. Rev. 617 (2017); E.T. Swaine, Kiobel and Extraterritoriality: Here, (Not) There, (Not Even) Everywhere, 69 Okla. L. Rev. 23 (2016). 100. 18 U.S.C. §§ 1581–1597. 101. 542 U.S. 466 (2004), discussed in Symeonides, 2004 Survey, supra note 1, at 938–40. 102. 553 U.S. 723 (2008), discussed in Symeonides, 2008 Survey, supra note 1, at 317–19. 103. Adhikari, 845 F.3d at 197. 104. Id. at 199. 105. Id. at 208 (Graves, J., concurring in part, dissenting in part). 106. Id. 107. 874 F.3d 806 (2d Cir. 2017). 108. 136 S. Ct. 2090 (2016), discussed in Symeonides, 2016 Survey, supra note 1, at 5–7 (holding that section 1964(c) of the RICO statute (which gives a private right of action to persons injured in their business or property by reason of a violation of RICO’s criminal provisions) does not apply unless the plaintiff proves a domestic injury). 109. Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1964(c) (1970). 110. Bascuñán, 874 F.3d at 819. 111. Id. at 820. 112. Id. at 820–21. 113. See, e.g., Dowis v. Mud Slingers, Inc., 621 S.E.2d 413 (Ga. 2005) (stating that “[t]he rule of lex loci delicti remains the law of Georgia” and reaffirming adherence to it). Dowis is discussed in Symeonides, 2005 Survey, supra note 1, at 594–95. 114. See, e.g., Alexander v. Gen. Motors Corp., 478 S.E.2d 123 (Ga. 1996), discussed in Symeonides, 1996 Survey, supra note 1, at 453–55. 115. 797 S.E.2d 828 (Ga. 2017). 116. The Alabama plaintiff gave birth to a stillborn girl at the defendant’s Georgia hospital. Because of an error at the hospital’s morgue, the hospital sent to Alabama the remains of a dead boy. A day after the burial, the hospital informed the mother of the error, and then exhumed the remains of the boy and sent to the mother the decomposed remains of the girl. 117. Coon, 797 S.E.2d at 829. See also id. at 834 (“In the absence of a statute, however, at least with respect to a state where the common law is in force, a Georgia court will apply the common law as expounded by the courts of Georgia.”). In an earlier case, the court said that “this approach will be followed if the other state was one of, or formed from the territory of one of, the original 13 colonies that inherited the common law of England.” Id. (citing Trs. of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807, 811, 7 S.E.2d 737 (1940)). Because Alabama was one of those states (formed predominantly from the territory of Georgia), the Coon court stated that there was no need to “address today whether the common law also may apply in other states.” Coon, 797 S.E.2d at 834. 118. Coon, 797 S.E.2d at 834 (“This approach may seem anachronistic to lawyers and judges trained and professionally steeped in relativist theories of legal realism.”). 119. Id. 120. See id. (Georgia courts “are not bound by the interpretation placed upon the common law by the courts of other states” (internal quotation marks omitted)). 121. Id. at 832 (internal quotation marks omitted). 122. Id. at 834. 123. Id. 124. Id. at 837. 125. 2017 WL 5477053 (La. Ct. App. 2017). 126. 432 P.2d 727 (Cal. 1967). 127. La. Civ. Code art. 3544(1). 128. Lonzo, 2017 WL 5477053 at *8 (quoting Symeon C. Symeonides, The Conflicts Book of the Louisiana Civil Code: Civilian, American, or Original?, 83 Tul. L. Rev. 1041, 1076–77 (2009) (footnotes omitted)). 129. 218 So. 3d 981 (Fla. Dist. Ct. App. 2017). 130. Id. at 984 (quoting Restatement (Second) of Conflict of Laws § 174 cmt. a (Am. Law Inst. 1971)). 131. Ward, 218 So. 3d at 984 (internal quotation marks omitted). 132. Id. 133. Id. at 984–85. 134. The concurrence added another reason for applying Florida law. After noting that the dangerous instrumentality doctrine was part of the same statute that regulates car registration, the concurrence reasoned that, when an owner applies for a car registration under that statute, the owner “accepts the concomitant financial responsibility,” including that imposed by the dangerous instrumentality part of that statute and [n]othing in this statute purports to limit the scope of this liability to permissive use that originates in this state or to injuries caused within the geographic confines of this state. The statute recognizes that the vehicle owner is in the best position to secure resources to pay for injuries and ensure that the vehicle, a dangerous instrument, is entrusted to careful drivers. Id. at 985 (Torpy, J., concurring). 135. 227 So. 3d 331 (La. Ct. App. 2017). 136. For the criteria for distinguishing between a permissible and inappropriate dépeçage, see Symeon C. Symeonides, Issue-By-Issue Analysis and Dépeçage in Choice of Law: Cause and Effect, 45 U. Tol. L. Rev. 751 (2014). 137. Cothern, 227 So. 3d at 334. 138. 2017 WL 2257582 (Miss. Ct. App. 2017), reh’g denied (Oct. 10, 2017). 139. Id. at *8. 140. 855 F.3d 836 (8th Cir. 2017) (decided under Arkansas conflicts law), reh’g and reh’g en banc denied (June 16, 2017), cert. denied, 2017 WL 4099641 (Nov. 27, 2017). 141. Shelby County, 855 F.3d at 841. 142. Id. at 843. 143. Id. (referring to Professor Robert Leflar’s five choice-influencing considerations). 144. Id. 145. Id. 146. Id. 147. Id. at 844. 148. 393 P.3d 700 (New Mex. 2017). 149. Section 101.106(f) of the Texas Torts Claims Act (TTCA) provides that a suit against a state employee for acts performed within the scope of his or her employment shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the state agency as defendant within a thirty-day period. Tex. Civ. Prac. & Rem. Code § 101.106(f). The plaintiff refused to dismiss the employee and sue the state agency, presumably because her recovery would be subject to the damages cap the statute imposes. (See id. § 101.023, imposing a $250,000 cap against the state and much less against other state agencies, such as the university hospital in this case). In any event, the fact that the plaintiff could sue the state agency distinguishes this case from Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488 (2003), and Franchise Tax Bd. of Cal. v. Hyatt, 136 S. Ct. 1277 (2016), discussed in Symeonides, 2016 Survey, supra note 1, at 16–21. 150. Montaño, 393 P.3d at 709. 151. Id. 152. Id. at 708. 153. 28 U.S.C. § 2680(k). 154. 542 U.S. 692, 1712 (2004), discussed in Symeonides, 2004 Survey, supra note 1, at 925–30, 935–38. 155. 853 F.3d 1056 (9th Cir. 2017), cert. filed, No. 17-529 (Oct. 5, 2017). 156. Id. at 1058 (quoting Restatement (First) of Conflict of Laws § 377 n.1 (Am. Law Inst. 1934)). 157. Id. at 1061 (quoting Restatement (First)). 158. Id. 159. Id. at 1062. 160. See id. at 1062 (“The undisputed facts of this case indicate that the force—the brain injury [the daughter] suffered at or near the time of her birth—impinged upon her body in Spain” and “the fact that a plaintiff suffers some ‘other loss’ in a different jurisdiction is ‘immaterial.’”). 161. Restatement (Second) of Conflict of Laws § 150(2) (Am. Law Inst. 1971). 162. 874 F.3d 54 (1st Cir. 2017) (decided under Massachusetts conflicts law). 163. 854 F.3d 508 (8th Cir. 2017) (decided under Missouri conflicts law). 164. Id. at 515–16. 165. Id. at 517. 166. Id. 167. Id. 168. Id. at 516. 169. 401 P.3d 215 (Nev. 2017). 170. The statute also provided a private right of action against a person who “willfully and knowingly” violated the statute. 171. 137 P.3d 914 (Cal. 2006), discussed in Symeonides, 2007 Survey, supra note 1, at 249–52. 172. 182 P.3d 106 (Nev. 2008). 173. 160 A.3d 44 (N.J. App. Div. 2017), cert. denied, 2017 WL 5153138 (N.J. Oct. 20, 2017), 2017 WL 5164397 (N.J. Oct. 20, 2017), 2017 WL 5208327 (N.J. Oct. 20, 2017). 174. Fairfax, 160 A.3d at 51. 175. Id. at 73. 176. See id. at 78–81. 177. N.Y. Exec. Law § 298-a(1) (McKinney 2000). 178. 76 N.E.3d 1063 (N.Y. 2017). 179. 155 A.D.3d 452 (N.Y. App. Div. 2017). 180. N.Y. Labor Law § 650 (McKinney 1962) (emphasis added). 181. 2017 WL 2589983 (Ill. App. Ct. June 13, 2017) (unpublished). 182. 870 F.3d 406 (6th Cir. 2017). 183. S. Treaty Doc. 106-45, ICAO Doc. No. 9740, 1999 WL 33292734 (entered into force Nov. 4, 2003) [hereinafter Montreal Convention]. 184. As the court put it, “[t]he Warsaw Convention provided limitations of liability to protect fledgling airlines from litigious passengers; the Montreal Convention provides limitations of liability to protect (still litigious) passengers from the not-so-fledgling airlines.” Dow, 870 F.3d at 436. 185. Montreal Convention, supra note 183, art. 17(1) (emphasis added). Article 21 of the Convention caps the passenger’s strict liability recovery to approximately $160,000, but also allows additional recovery, unless the airline proves that the injury was not due to its negligence or that of its servants or agents. 186. According to the complaint, the plaintiff “refrained from sexual intercourse with her husband and from sharing food with her daughter until one year after the incident, when her doctor told her that she could be certain that she had not contracted a disease from the needlestick.” Dow, 870 F.3d at 436. 187. Id. at 409. 188. Id. at 423. 189. Id. at 433. 190. Id. at 435 (quoting the Montreal Convention, supra note 183, art. 29). 191. For a discussion of products liability conflicts in the last thirty years, see Symeon C. Symeonides, Choice of Law: The Oxford Commentaries on American Law 273–341 (2016). For a summary of the trends, see id. at 335–36. 192. 298 Neb. 109 (2017). 193. O’Brien, 298 Neb. at 140. 194. Id. at 142. 195. See id. at 141 (“The injury took place in Nebraska; Plaintiffs are Nebraska residents; . . . [Plaintiff] was flying a regular route within Nebraska at the time of the accident; . . . the owner of the aircraft and employer of . . . [plaintiff], is a Nebraska resident; . . . [plaintiff] was treated in Nebraska; the Cessna aircraft product at issue was operated at all relevant times within the borders of Nebraska and the alleged product failures took place in this state . . . .” (approvingly quoting the lower court)). 196. Id. at 142 (approvingly quoting the lower court). 197. 2017 WL 6333908 (Cal. Ct. App. 2017) (unpublished/noncitable). 198. Id. at *3 (internal quotation marks omitted). 199. Id. at *4. 200. Id. 201. Id. (quoting Minn. Stat. § 541.076). 202. 2017 WL 5077106 (W. Va. 2017). 203. The plaintiff was born with birth defects which she attributed to a prescription drug used by her mother during her pregnancy. The drug was prescribed to and used by the mother in her home state of Michigan. 204. The case does not mention West Virginia’s contacts with the defendant. 205. M.M., 2017 WL 5077106 at *3 (emphasis added by the court). 206. Id. at *4 (internal quotation marks omitted). 207. 801 S.E.2d 485 (W. Va. 2017). 208. Id. at 494. 209. 854 F.3d 733 (5th Cir. 2017) (decided under Texas conflicts law). 210. Tex. Civ. Prac. & Rem. Code § 71.031(a). 211. Burdett, 854 F.3d at 734. 212. Id. at 736. 213. 78 N.E.3d 639 (Ill. Ct. App. 2017), appeal denied, 2017 WL 4386677 (Table) (Ill. Sept. 27, 2017). 214. Startley, 78 N.E.3d at 649. 215. See id. at 648 (“The conduct that caused the injury included the shipment of [the product] to Illinois, where [the plaintiff’s] employer put the product to its intended use. . . . The parties’ relationship at the time of injury centered in Illinois.”). 216. 213 Cal. Rptr. 3d 142, 7 Cal. App. 5th 757 (2017), review granted, 390 P.3d 1132 (Cal. 2017). 217. Chen, 213 Cal. Rptr. 3d at 155. 218. Id. 219. Id. 220. The cost of seat belts was $12 per nonretractable lap belt, or $45 per retractable lap and shoulder belt. 221. Chen, 213 Cal. Rptr. 3d at 155. 222. Id. 223. Id. 224. 225 P.3d 516 (Cal. 2010), discussed in Symeonides, 2010 Survey, supra note 1, at 325–30. 225. Chen, 213 Cal. Rptr. 3d at 156 (quoting McCann v. Foster Wheeler, L.L.C., 225 P.3d 516 (Cal. 2010)). 226. Id. 227. Id. (“In short, we conclude [the dealer] does not do business in Indiana; it simply buys a product manufactured there and distributes it in other jurisdictions, where it does business. . . . [T]he Indiana manufacturer, has settled and is no longer a party. Indiana’s interest in protecting its resident product manufacturers is not implicated by this case.”). 228. Id. at 158. 229. See Chen v. L.A. Truck Centers, 390 P.3d 1132, 215 Cal. Rptr. 3d 276 (Mem) (2017). 230. 213 Cal. Rptr. 3d 410, 8 Cal. App. 5th 1 (2017). 231. Obviously, enforcement of an arbitration clause always entails a waiver of the right of trial by jury, and the preempting force of the Federal Arbitration Act (FAA) makes futile a state’s refusal to deny enforcement of an arbitration clause on that ground. The latest example in a long line of Supreme Court decisions to this effect, is Kindred Nursing Centers, Ltd. Partnership v. Clark, 137 S. Ct. 1421 (2017), a case involving an arbitration clause in a contract between a nursing home and a patient who later died as a result of the nursing home’s alleged negligence. The Kentucky Supreme Court held the arbitration clause unenforceable on the ground that the power of attorney used to sign the contract on the patient’s behalf did not contain a “clear-statement” explicitly authorizing the agent to waive the patient’s right to a jury trial, The U.S. Supreme Court held that this “clear-statement rule” disfavored arbitration agreements and thus was preempted by the FAA. For Kentucky’s response on remand, see Kindred Nursing Centers, Ltd. Partnership v. Wellner, 2017 WL 5031530 (Ky. 2017). 232. See Rincon, 213 Cal. Rptr. 3d at 415 (“This agreement was negotiated in the state of New York, the loan was made by lender and accepted by borrower in the state of New York, and the proceeds of the loan delivered pursuant hereto were disbursed from the state of New York, which state the parties agree has a substantial relationship to the parties and to the underlying transaction embodied hereby, and in all respects. . . . [T]his agreement, the note and the other loan documents and the obligations arising hereunder and thereunder shall be governed by, and construed in accordance with, the laws of the state of New York applicable to contracts made and performed in such state (without regard to principles of conflicts of laws) . . . .” (capitalization and boldface removed)). 233. See id. (“[B]orrower hereby unconditionally and irrevocably waives any claim to assert that the law of any other jurisdiction governs this agreement, the note and the other loan documents, and this agreement, the note and the other loan documents shall be governed by and construed in accordance with the laws of the state of New York pursuant to section 5-1401 of the New York General Obligations Law.” (capitalization and boldface removed)). 234. See id. (“Borrower and lender hereby agree not to elect a trial by jury of any issue triable of right by jury, and waive any right to trial by jury fully to the extent that any such right shall now or hereafter exist with regard to the loan documents, or any claim, counterclaim or other action arising in connection therewith. This waiver of right to trial by jury is given knowingly and voluntarily by borrower and lender.” (capitalization and boldface removed)). 235. N.Y. Gen. Obl. Law § 5-1401 (2015). 236. Cf. Rincon, 213 Cal. Rptr. 3d at 423–24 (“Were the venue changed in this lawsuit to New York—we note that no party ever sought to bring that about—the jury trial right the parties enjoy in our courts would not travel with them.”). 237. Following a nonjudicial foreclosure sale of the building, the defaulting borrower sued the lender, the building purchaser, and seven other involved entities alleging various causes of action, some legal (breach of contract, fraud, slander of title, trade secret misappropriation), and some equitable (unfair competition, to set aside the foreclosure sale, and for an accounting). 238. Rincon, 213 Cal. Rptr. 3d at 421. 239. Id. at 420 (quoting the trial court). After noting that “[a]ll parties to the original loan were domiciled in New York” and that “[t]he contracts at issue were negotiated and signed in New York, and the loan was disbursed in New York,” the trial court concluded that “New York’s interest in protecting the bargained for expectations of sophisticated commercial entities to contracts negotiated, signed, and performed in New York outweighs California’s limited interest in a jury trial simply because the property is located here.” Id. at 420–21. 240. Id. at 421. 241. Id. at 422. 242. Id. 243. Id. In two other cases involving loans secured by mortgages on immovable property, the courts enforced choice-of-law clauses choosing the law of a state other than the situs state. In Candee v. Candee, 903 N.W.2d 514 (N.D. 2017), the loan contained a California choice-of-law clause and was secured by mortgages on two immovables situated in California and North Dakota, respectively. Following the debtor’s default, the creditor foreclosed on both immovables and then sued the debtor for the balance of the loan. The North Dakota Supreme Court held that California’s anti-deficiency statute applied not only with regard to the California immovable but also with regard to the North Dakota immovable. In HSBC Bank USA, National Association v. Anderson, 389 Mont. 106, 2017 WL 4785645 (2017), the loan contained a New York choice-of-law clause and was secured by a mortgage on a Montana immovable. In the foreclosure proceeding brought by the creditor following the debtor’s default, the Montana Supreme Court held that New York law governed the debtor’s counterclaims against the creditor. 244. 865 F.3d 417 (6th Cir. 2017) (decided under Kentucky conflicts law). 245. Id. at 443. 246. Id. at 444. 247. Id. 248. Id. 249. 799 S.E.2d 318 (S.C. Ct. App. 2017), reh’g denied (May 26, 2017). 250. 2017 IL App (1st) 162958-U (Ill. App. Ct. June 29, 2017) (nonprecedential). 251. For the difference between the two types and roles of public policy, see Symeonides, supra note 191, at 375–76. 252. Pengbo Fu, 2017 IL App (1st) at *2 (quoting Chinese law). 253. Id. 254. See id. at *3 (“[The plaintiff] cannot promise that he will give a gift unconditionally and only after he is unhappy with his son apply a condition on the gift so that he can revoke it. The gift was made with intent to permanently transfer the property, plaintiff delivered the property to defendant, and defendant accepted.”). 255. Id. at *5. 256. Id. 257. 676 Fed. App’x 887 (11th Cir. 2017) (decided under Florida conflicts law). 258. See Symeonides, supra note 191, at 472–73. 259. See id. at 460–62. For 2017 cases, see Reed v. Reilly, Co., L.L.C., 2017 WL 6012439 (Mont. 2017); Deffenbaugh v. Giancola, 2017 WL 281019 (Pa. Super. Ct. Jan. 23, 2017). 260. The Hague Choice of Law Principles for International Commercial Contacts of 2015 adopted this doctrine for choice-of-law clauses. Article 7 provides that “[a] choice of law cannot be contested solely on the ground that the contract to which it applies is not valid.” Hague Conference of Private Int’l Law, Principles on Choice of Law in International Commercial Contracts art. 7 (2015). 261. Cf. Ross v. Hesdorffer, 2017 WL 4340397, at *4 (Ill. App. Ct. Sept. 27, 2017) (“Applying the choice-of-law clause to resolve the contract formation issue would presume the applicability of a provision before its adoption by the parties has been established.”); Trans-Tec Asia v. M/V Harmony Container, 518 F.3d 1120, 1124 (9th Cir. 2008) (“[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 and was legitimately incorporated into the parties’ contract.”); B-S Steel of Kansas, Inc. v. Texas Indus., Inc., 439 F.3d 653, 661 n. 9 (10th Cir. 2006) (referring to “the logical flaw inherent in applying a contractual choice of law provision before determining whether the underlying contract is valid”); Life Plans, Inc. v. Sec. Life of Denver Ins., Co., 800 F.3d 343, 357 (7th Cir. 2015) (A “contract’s choice-of-law provision may not apply if the contract’s legality is fairly in doubt, for example, if the contract is unconscionable, or if there is some other issue as to the validity of the very formation of the contract.”). 262. 761 So. 2d 306 (Fla. 2000), discussed in Symeonides, 2000 Survey, supra note 1, at 36–37. 263. Sack, 676 Fed. App’x at 890. In the alternative, the plaintiff asked for a rescission of the contract, but the court found that this was immaterial. See id. 264. 675 Fed. App’x 122 (3d Cir. 2017) (decided under Pennsylvania conflicts law). 265. Id. at 127. 266. Id. 267. Id. 268. Id. 269. See Symeonides, supra note 191, at 386–88. 270. 860 F.3d 97 (2d Cir. 2017), cert. denied, 2017 WL 4168238 (Dec. 11, 2017) (decided under New York conflicts law). 271. Id. at 107. 272. Id. at 108. 273. Id. (quoting Webster’s New World College Dictionary (5th ed. 2014)). 274. Interpretation attempts to answer questions such as whether the clause confers exclusive or nonexclusive jurisdiction to the chosen court (“mandatory” or “permissive,” respectively), whether it encompasses pre-contract or non-contractual (in addition to contractual) claims, whether it binds nonsignatories or other third parties, etc. 275. The enforceability of a clause depends on questions such as whether the parties’ assent was free of vices, and generally whether the agreement suffers from any defects such as unconscionability or violation of public policy that render the clause unenforceable. 276. See, e.g., Symeonides, 2016 Survey, supra note 1, at 56–65. 277. See Symeon C. Symeonides, What Law Governs Forum Selection Clauses?, 78 La. L. Rev. (forthcoming 2018). 278. Five cases involved only questions of enforceability. See Lubinski v. Hub Group Trucking, Inc., 690 Fed. App’x 377 (6th Cir. 2017); Corp. Creations Enter., L.L.C. v. Brian R. Fons Attorney at Law P.C., 225 So.3d 296 (Fla. Dist. Ct. App. 2017); Stone Surgical, L.L.C. v. Stryker Corp., 858 F.3d 383 (6th Cir. 2017), reh’g en banc denied (July 12, 2017), cert. filed, No. 17-556 (Oct. 10, 2017); Rocky Mountain Builders Supply, Inc. v. Marks, 392 P.3d 981 (Utah Ct. App. 2017); Deffenbaugh v. Giancola, 2017 WL 281019 (Pa. Super. Ct. Jan. 23, 2017). Three cases involved only questions of interpretation. See 1st Source Bank v. Neto, 861 F.3d 607 (7th Cir. 2017); Central Petroleum, Ltd. v. Geoscience Res. Recovery, L.L.C., 2017 WL 6374694 (Tex. App. 2017); American Finasco, Inc. v. Thrash, 2017 WL 391377 (Tex. App. Jan. 26, 2017). One case, Autoridad de Energia Electrica de Puerto Rico v. Vitol S.A., 859 F.3d 140 (1st Cir. 2017), involved both questions. 279. See Pinto Tech. Ventures, L.P. v. Sheldon, 526 S.W.3d 428 (Tex. 2017), reh’g denied (Sept. 22, 2017) (Delaware FS clause); Marullo v. Apollo Associated Servs., L.L.C., 515 S.W.3d 902 (Tex. App. 2017) (Washington FS clause); In re Bloom Business Jets, L.L.C., 522 S.W.3d 764 (Tex. App. 2017) (Colorado FS clause); Akesogenx Corp. v. Zavala, 2017 WL 5180839 (Kan. Ct. App. 2017) (Delaware FS clause). Krueger v. Pulse Evolution Corp., 2017 WL 3097660 (Tex. App. July 21, 2017). 280. See Durkovic v. Park West Galleries, Inc., 217 So. 3d 159 (Fla. Dist. Ct. App. 2017) (Turks & Caicos FS clause); Castro v. Pullmantur, S.A., 220 So. 3d 531 (Fla. Dist. Ct. App. 2017) (Maltese FS clause); Olde Homestead Golf Club v. Elec. Transaction Sys. Corp., 2017 WL 5899920 (3d Cir. 2017) (Pennsylvania forum, Virginia FS clause). 281. See In re Bambu Franchising, L.L.C., 2017 WL 4003428 (Tex. App. Sept. 12, 2017) (California FS clause). 282. See Osborne v. Brown & Saenger, Inc., 2017 WL 6046748 (N.D. 2017) (South Dakota FS and choice-of-law clauses); Maslowski v. Prospect Funding Partners, L.L.C., 890 N.W.2d 756 (Minn. Ct. App. 2017), review denied (Minn. May 16, 2017) (New York FS and choice-of-law clauses); Blackwell v. Sky High Sports Nashville Operations, L.L.C., 523 S.W.3d 624 (Tenn. Ct. App. 2017), appeal denied (May 18, 2017) (California FS and choice-of-law clauses); Ex parte Jewels by Park Lane, Inc., 2017 WL 2705578 (Ala. 2017) (Illinois FS and choice-of-law clauses); Donnay USA, Ltd. v. Donnay Int’l S.A., 2017 WL 3635515 (2d Cir. 2017) (New York forum, English FS and choice-of-law clauses); Charney v. Standard Gen., L.P., 2017 WL 3599522 (Cal. Ct. App. Aug. 22, 2017) (unpublished/noncitable) (Delaware FS and choice-of-law clauses); Resolute Trans., Inc. v. Shofur, L.L.C., 2017 WL 1164527 (Cal. Ct. App. Mar. 29, 2017) (unpublished/noncitable) (Georgia FS and choice-of-law clauses); Debello v. VolumeCocomo Apparel, Inc., 2017 WL 6616704 (2d Cir. 2017) (federal question case, New York forum, California FS and choice-of-law clauses). 283. See Collins on Behalf of Herself v. Mary Kay, Inc., 874 F.3d 176 (3d Cir. 2017) (New Jersey forum, Texas FS and choice-of-law clauses); U.S. Chemical Storage, L.L.C. v. Berto Constr., Inc., 800 S.E.2d 716 (N.C. Ct. App. 2017) (New Jersey FS and choice-of-forum clauses); WorkFlex Solutions, L.L.C. v. Fifth Third Bank, 2017 WL 3392766 (Tex. App. Aug. 8, 2017) (Ohio FS and choice-of-law clauses); Spector v. Global Aerospace Underwriting Managers, Ltd., 2017 WL 2806881 (Cal. Ct. App. June 29, 2017) (unpublished/noncitable), review denied (Sept. 13, 2017) (German FS and choice-of-law clauses). 284. See Laboratory Specialists In’tl, Inc. v. Shimadzu Sci. Instruments, Inc., 2017 WL 5618622 (Cal. Ct. App. 2017), as modified on denial of reh’g (Nov. 21, 2017) (Maryland FS and choice-of-law clauses). 285. See Rigsby v. Am. Credit Counselors, Inc., 215 So. 3d 526 (Miss. Ct. App. 2017) (Florida FS and choice-of-law clauses); Reed v. Reilly Co., L.L.C., 2017 WL 6012439 (Mont. 2017) (Kansas FS and choice-of-law clauses). 286. See Schwarz v. St. Jude Medical, Inc., 802 S.E.2d 783 (N.C. Ct. App. 2017) (Minnesota FS and choice-of-law clauses); In re Kubler, 2017 WL 3326937 (Tex. App. Aug. 4, 2017), mandamus denied (Aug. 25, 2017) (German FS and choice-of-law clauses); MBC Fin. Serv., Ltd. v. Boston Merchant Fin., Ltd., 2017 WL 3616347 (2d Cir. 2017) (Swiss FS clause and British Virgin Islands choice-of-law clause). 287. 856 F.3d 330 (4th Cir. 2017) (decided under North Carolina’s conflicts law). 288. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n.19 (1985). 289. Id. 290. Dillon, 856 F.3d at 335. 291. Id. at 336. 292. Id. at 334 (internal quotation marks omitted). 293. Id. (internal quotation marks omitted). 294. Id. 295. 160 A.3d 457 (Del. 2017), reh’g en banc denied (Apr. 28, 2017). 296. For the difference between these two approaches and the states that follow each approach, see Symeonides, supra note 191, at 502–12. 297. See id. 298. Certain Underwriters, 160 A.3d at 471. See also id. at 467 (“[I]n analyzing the contacts relevant to determining the most significant relationship, we focus on the reality that this is a contract dispute and that the important purpose of fulfilling the justified expectations of the parties in contract disputes is best served by providing terms in the contract with a meaning that does not vary based on the happenstance of the locations of a particular claim.”). 299. Another flaw in the court’s analysis was its conclusion that Arkansas and Ohio did not have a “material enough interest” to apply their pro-coverage law because the insured was able to pay for the cleanup and thus those states would not be “left on the hook.” Id. at 468. However, this is too casuistic and narrow a basis on which to assess a state’s interest. If, in the next case, the insured is unable to pay, the state’s taxpayers will be “left on the hook.” 300. Id. 301. Id. at 466. 302. Id. at 470. 303. Id. at 470–71. 304. 2017 WL 6421101 (Md. 2017). 305. Id. at *10. The court did not show any willingness to re-examine its adherence to the lex loci rule, if only because both parties agreed that the rule should remain applicable and instead focused their arguments on the public policy exception. 306. Id. at *10 (Watts, J., dissenting). 307. Id. at *11. For other commercial liability insurance conflicts decided by appellate courts in 2017, see, e.g., Mega Constr. Corp. v. XL Am. Grp., 684 Fed. App’x 196 (3d Cir. 2017) (decided under New Jersey conflicts law; following section 193 of the Restatement (Second) and applying Pennsylvania law to an insurance dispute arising from a Pennsylvania risk); Pitzer Coll. v. Indian Harbor Ins., Co., 845 F.3d 993 (9th Cir. 2017) (certifying to the California Supreme Court the question of whether California’s common law notice-prejudice rule embodied a fundamental California policy that would override the contractual choice of New York law). For cases involving automobile insurance conflicts, see Am. Fire and Cas. Co. v. Hegel, 847 F.3d 956 (8th Cir. 2017) (decided under North Dakota conflicts law; applying the law of Kentucky, which was the location of the insured’s headquarters and where the insurance policy was delivered, in a case arising from a North Dakota accident and a car owned by a North Dakota pizza delivery driver working for the insured (Papa John) and covered by the insured’s nationwide policy); Kerns v. All. Indem., Co., 515 S.W.3d 254 (Mont. Ct. App. 2017) (applying Kansas law in a case arising from a Kansas accident, a Kansas insurance policy, and a Kansas insured, who was driving a rental car registered in Missouri). 308. 391 P.3d 1113 (Wyo. 2017). 309. Id. at 1120. 310. 337 P.3d 1148, 1155 (Wyo. 2014), discussed in Symeonides, 2014 Survey, supra note 1, at 360–62. 311. Boutelle, 337 P.3d at 1155. 312. Id. at 1153 (quoting Jack v. Enter. Rent-a-Car Co. of L.A., 899 P.2d 891, 894 (Wyo. 1995, quoting Ball v. Ball, 269 P.2d 302, 304 (Wyo. 1954)). 313. 899 P.2d 891 (Wyo. 1995), discussed in Symeonides, 1995 Survey, supra note 1, at 189. 314. Jack involved a Wyoming collision of a car driven by a Wyoming domiciliary, the plaintiff, and a car driven by a California driver who had rented the car from a California rental company, the defendant. 315. Stuarte v. Colo. Interstate Gas, Co., 130 F. Supp. 2d 1263, 1266 (D. Wyo. 2000). 316. See Black Card, L.L.C. v. Visa U.S.A., Inc., 2017 WL 3600721, at *7 (D. Wyo. 2017) (“Wyoming applies the tort law of the place where the tort or wrong was committed.”). 317. 733 P.2d 1024 (Wyo. 1987). In Resource Technology Corp. v. Fisher Scientific, Co., 924 P.2d 972 (Wyo. 1996), discussed in Symeonides, 1996 Survey, supra note 1, at 456–57, the court applied section 187 of the Restatement (Second) in upholding a choice-of-law clause, but other traditional states (such as Alabama, Georgia, and Maryland) also follow that section without following the rest of the Restatement. In Larson v. Larson, 687 Fed. App’x 695 (10th Cir. 2017) (decided under Wyoming conflicts law), the Tenth Circuit pointed to this case, stating that Wyoming “has not expressly adopted the entirety of the Restatement (Second) . . . [but] it regularly follows the Second Restatement’s approach.” Id. at 707. 318. See Amoco Rocmount, Co. v. The Anschutz Corp., 7 F.3d 909 (10th Cir. 1993). 319. 1 P.3d 1253 (Wyo. 2000). 320. Id. at 1257. 321. Id. 322. 60 P.3d 145 (Wyo. 2002). 323. Id. at 149 (“As an example, the analytical approach to a conflict of law question has been described within the framework of the Restatement (Second) of Conflict of Laws . . . .”). 324. Id. 325. See id. (“The outcome is the same regardless of whether we apply Wyoming or Colorado law, thus it is unnecessary to specifically discuss the Colorado and Wyoming statutes or engage in a conflict of law analysis to choose between the two. When there is no conflict, the Court applies the law of the forum.”). 326. 305 A.2d 412 (N.J. 1973). 327. 679 A.2d 106 (N.J. 1996), discussed in Symeonides, 1996 Survey, supra note 1, at 468–70. 328. For documentation and discussion of representative cases, see Symeonides, supra note 191, at 535–39. 329. See Unif. Conflict of Laws-Limitations Act, 12 U.L.A. 56 (2015). For an authoritative discussion of the Act by the chairman of the Drafting Committee, see Robert A. Leflar, The New Conflicts—Limitations Act, 35 Mercer L. Rev. 461 (1983). 330. For documentation and discussion of representative cases, see Symeonides, supra note 191, at 531–34. 331. Section 142 provides: Whether a claim will be maintained against the defense of the statute of limitations is determined under the principles stated in § 6. In general, unless the exceptional circumstances of the case make such a result unreasonable: (1) The forum will apply its own statute of limitations barring the claim. (2) The forum will apply its own statute of limitations permitting the claim unless: (a) maintenance of the claim would serve no substantial interest of the forum; and (b) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence. Restatement (Second) of Conflict of Laws § 142 (Am. Law Inst. 1971). 332. For documentation and discussion of representative cases, see Symeonides, supra note 191, at 540–44. 333. 962 A.2d 453 (N.J. 2008), discussed in Symeonides, 2008 Survey, supra note 1, at 272–75. 334. See Cornett v. Johnson & Johnson, 48 A.3d 1041 (N.J. 2012); Singh v. Pilot Gas Station, 2014 WL 1577816 (N.J. Super. Ct. App. Div. Apr. 22, 2014), cert. denied, 218 N.J. 530 (2014); Irby v. Novartis Pharm. Corp., 2013 WL 2660947 (N.J. Super. Ct. App. Div. June 14, 2013); McHale v. Kelly, 527 Fed. App’x 149 (3d Cir. May 30, 2013) (decided under New Jersey conflicts law). 335. See McCarrell v. Hoffmann-La Roche, Inc., 2015 WL 4726495 (N.J. Super. Ct. App. Div. Aug. 11, 2015), reversed by the Supreme Court decision discussed in the text below (see infra text accompanying notes 337–52); Cornett v. Johnson & Johnson, 998 A.2d 543 (N.J. Super. Ct. App. Div. 2010), aff’d as modified, 48 A.3d 1041 (2012). 336. See Pitcock v. Kasowitz, Benson, Torres & Friedman, L.L.P., 46 A.3d 586 (N.J. Super. Ct. App. Div. 2012). 337. 153 A.3d 207 (N.J. 2017). 338. Both states had a two-year statute of limitations, which would bar the action, but New Jersey had a discovery rule under which the action would be timely. 339. McCarrell v. Hoffmann-La Roche, Inc., 2015 WL 4726495, at *16 (N.J. Super. Ct. App. Div. Aug. 11, 2015), discussed in Symeonides, 2015 Survey, supra note 1, at 287–88. 340. McCarrell, 2015 WL at *18. 341. McCarrell, 153 A.3d at 221. 342. Id. at 223. 343. See id. (“[T]he results in Heavner and Gantes would be no different under a Second Restatement section 142 analysis than the actual results reached by the Court in those cases using the governmental-interest test.”). 344. Id. at 221. 345. Id. at 222. 346. Restatement (Second) of Conflict of Laws § 142(2) (Am. Law Inst. 1971). 347. McCarrell, 153 A.3d at 224. 348. Id. The court continued: We have never taken the parochial attitude that the health and safety of our State’s citizens are of greater concern or worth than the health and safety of citizens of another state. Our national compact and our interstate system suggest that we should treat the citizens of other states as we treat our own. It would make little sense, if we were to find that New Jersey had a substantial interest in the maintenance of a lawsuit, to discriminate against an out-of-state plaintiff whose lawsuit was filed within our limitations period. Id. 349. Id. 350. Id. 351. Id. at 225. 352. Upon remand, the intermediate court reversed the trial court’s prior decision and ordered a new trial on the substantive issues of the case. See McCarrell v. Hoffmann-La Roche, Inc., 2017 WL 2218415 (N.J. Super. Ct. App. Div. May 2, 2017). For a post-McCarrell New Jersey case involving the converse scenario, see Berkley Risk Solutions, L.L.C. v. Indus. Re-Int’l, Inc., 2017 WL 4159170 (N.J. Super. Ct. App. Div. Sept. 20, 2017) (applying New Jersey’s five-year statute of limitations rather than Puerto Rico’s fifteen-year statute). For an Arizona case decided under section 142 and applying the forum’s longer statute of limitations, see Chacon v. Ohio State Life Ins., Co., 676 Fed. App’x 645 (9th Cir. 2017) (decided under Arizona conflicts law). 353. The Table does not list Louisiana, which follows a hybrid approach combining elements from the Restatement (Second) and the Uniform Act. See Symeonides, supra note 191, at 544–46. 354. For documentation and discussion of representative cases, see id. at 523–52. 355. For cases so holding, see id. at 401–02, 548. 356. For documentation and discussion, see id. at 402–05, 548. 357. See Prof’l Collection Consultants v. Lauron, 214 Cal. Rptr. 3d 419, 8 Cal. App. 5th 958 (Cal. Ct. App. 2017), reh’g denied (Mar. 13, 2017), review denied (Apr. 26, 2017); ZB, N.A. v. Hoeller, 395 P.3d 704 (Ariz. Ct. App. 2017); In re Sterba, 852 F.3d 1175 (9th Cir. 2017), cert. docketed (U.S. Sept. 20, 2017) (bankruptcy case decided under section 142 of the Restatement (Second)). 358. See Brazos Higher Educ. Serv. Corp. v. Stinnett, 2017 WL 1103459 (Mich. Ct. App. Mar. 23, 2017), appeal denied, 2017 WL 5939208 (Mich. 2017). 359. Pub. L. 114-308, 130 Stat. 1524 (codified as Statutory Note under U.S.C. § 1621). For a comprehensive expert analysis of this Act, see Jennifer Anglim Kreder, Analysis of the Holocaust Expropriated Art Recovery Act of 2016, 20 Chap. L. Rev. 1 (2017). 360. Holocaust Expropriated Art Recovery Act § 5(a). 361. 862 F.3d 951 (9th Cir. 2017). 362. The other two cases are De Csepel v. Republic of Hungary, 859 F.3d 1094 (D.C. Cir. 2017) (discussed supra at text accompanying notes 52–54; allowing plaintiffs to amend their complaints to include an action under the HEAR Act) and Maestracci v. Helly Nahmad Gallery, Inc., 63 N.Y.S.3d 376 (App. Div. 2017) (preliminary ruling that the defendants failed to establish that the HEAR Act barred the plaintiffs’ claim). 363. See Margaret M. Miles, War and Passion: Who Keeps the Art?, 49 Case W. Res. J. Int’l L. 5 (2017). 364. In Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010) (en banc), the court held that it had jurisdiction under the “taking in violation of international law” exception of the Foreign Sovereign Immunity Act (FSIA). 365. For the California statute, see Rajika L. Shah, The Making of California’s Art Recovery Statute: The Long Road to Section 338(c)(3), 20 Chap. L. Rev. 77 (2017); Michael J. Bazyler & Rajika L. Shah, The Unfinished Business of the Armenian Genocide: Armenian Property Restitution in American Courts, 23 Sw. J. Int’l L. 223 (2017). 366. Holocaust Expropriated Art Recovery Act § 5(a) (emphasis added). 367. Cassirer, 862 F.3d at 965 (“Read in context, HEAR’s § 5(a) language that the six-year statute of limitations applies “notwithstanding any defense at law relating to the passage of time” is meant to prevent courts from applying defenses that would have the effect of shortening the six-year period in which a suit may be commenced. HEAR does not bar claims based on the substantive law that vests title in a possessor, that is, the substantive law of prescription of title. Therefore, HEAR does not foreclose the possibility that TBC is entitled to summary judgment because TBC has acquired title to the Painting via Article 1955.”). 368. For discussion of the differences between acquisitive prescription and their effect on efforts to recover stolen artwork and antiquities, see Symeonides, supra note 191, at 600–02; Symeon C. Symeonides, A Choice-of-Law Rule for Conflicts Involving Stolen Cultural Property, 38 Vand. J. Transnat’l L. 1177 (2005). 369. Article 1956 provides: Movable property purloined or stolen may not prescribe in the possession of those who purloined or stole it, or their accomplices or accessories [encubridores], until the crime or misdemeanor or its sentence, and the action to claim civil liability arising therefrom, should have become barred by the statute of limitations. Codigo Civil [C.C.] [Civil Code] art. 1956 (Spain). In this case, this article would extend the limitation period to 2019. 370. 212 So. 3d 1113 (Fla. Dist. Ct. App. 2017). From this year’s literature on marriages and other spousal unions, see A.L. Estin, Marriage and Divorce Conflicts in International Perspective, 27 Duke J. Comp. & Int’l L. 485 (2017); S.L. Gössl & J. Verhellen, Marriages and Other Unions in Private International Law—Separate but Equal?, 31 Int’l J.L. Pol. & Fam. 174 (2017). 371. Cohen, 212 So. 3d at 1122. 372. Id. 373. Id. 374. 199 Wash. App. 1051, 2017 WL 2957740 (2017). 375. Id. at *3 (Fearing, J., dissenting). 376. 2017 WL 4797915 (Wis. Ct. App. 2017). 377. Id. at *4 (internal quotation marks omitted). 378. Id. at 2. 379. 2017 WL 1148603 (Ohio Ct. App. 2017). 380. Id. at *5 n.2 (emphasis added). 381. Id. at *5. 382. Id. 383. 2017 WL 5164384 (Ohio Ct. App. 2017). 384. Id. at *1. 385. Id. at *4. 386. In Zewde v. Abadi, 529 S.W.3d 189 (Tex. App. 2017), the husband filed a petition seeking to declare his Texas marriage null because his wife’s preexisting Eritrean marriage had not been properly dissolved by an Eritrean divorce proceeding. However, he did not provide sufficient proof of the defects of the Eritrean proceeding and thus did not rebut the presumption of validity that Texas law attaches to marriages. 387. 862 F.3d 1186 (9th Cir. 2017), cert. filed, No. 17-521 (Oct. 3, 2017) (decided under Arizona conflicts law). 388. 390 P.3d 127 (Table), 2017 WL 840233 (Kan. Ct. App. Mar. 3, 2017) (unpublished). 389. 228 So. 3d 238 (La. Ct. App. 2017). 390. La. Civ. Code art. 2329. 391. For another case involving parties entering into a premarital agreement in one state and then divorcing in another state, see Wolfe v. Wolfe, 803 S.E.2d 662 (Table), 2017 WL 3255192 (N.C. Ct. App. 2017) (unpublished). 392. 853 F.3d 508 (9th Cir. 2017) (decided under federal conflicts law). 393. Restatement (Second) of Conflict of Laws § 230 (Am. Law Inst. 1971) (“Whether a lien creates an interest in land and the nature of the interest created are determined by the law that would be applied by the courts of the situs.”). 394. In re Miller, 853 F.3d at 519 (internal quotation marks omitted). 395. Id at 518 (internal quotation marks omitted). 396. Id. at 519. 397. 399 P.3d 109 (Ariz. Ct. App. 2017). 398. 404 P.3d 62 (Wash. 2017). 399. Id. at 69. 400. 215 U.S. 1 (1909). 401. Id. at 7. The Court also noted that, because the Washington court had in personam jurisdiction over both parties, the court could “indirectly act upon real estate in another state, through the instrumentality of this authority over the person,” id. at 6, by ordering that person to convey the Nebraska land to the other party and, if need be enforce the order through contempt proceedings. 402. Id. at 6. 403. 400 P.3d 669 (Kan. Ct. App. 2017). 404. Id. at 672. 405. Id. at 675 (internal quotation marks omitted). 406. Id. at 676. 407. 796 S.E.2d 129 (N.C. Ct. App. 2017), review denied, 799 S.E.2d 871 (N.C. 2017), cert. denied, 2017 WL 3980780 (U.S. 2017). 408. Because the USVI (officially the Virgin Islands of the United States) are a territory of the United States, USVI judgments are eligible for recognition in the United States under the Full Faith and Credit Act. See 28 U.S.C. § 1738. 409. 169 A.3d 1308 (Vt. 2017). 410. 212 So. 3d 1039 (Fla. 2017), reh’g denied, 2017 WL 1046532 (Fla. Mar. 20, 2017). 411. 69 N.E.3d 902 (Ill. App. Ct. 2017), appeal denied, 80 N.E.3d 2 (Ill. 2017). 412. 69 N.E.3d at 909 (quoting the Illinois Parentage Act, 750 Ill. Comp. Stat. 40/30b (2015). The Act was repealed by the time of the Illinois recognition proceeding.). 413. The defendant also argued that the Thai judgment was procured by intrinsic fraud but the record did not substantiate his allegations. He had fully participated through counsel in the Thai proceeding and had a full opportunity to present his case. 414. 2017 WL 4800130 (Ind. Ct. App. 2017). 415. Id. at *3 (quoting the pertinent provision of Indiana’s Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Ind. Code § 31-21-1-3). 416. Coulibaly, 2017 WL. 417. One of the children was a girl born in 2002, but the mother did not suggest that she was in danger of becoming a victim of this practice upon return to Mali. The Indiana court referred to the father’s testimony describing the practice as “horrible.” Id. at *2. 418. Id. at *7. 419. Id. 420. Id. From this year’s literature on child custody, see, e.g., Louise Ellen Teitz, Children Crossing Borders: Internationalizing the Restatement of the Conflict of Laws, 27 Duke J. Comp. & Int’l L. 519 (2017). 421. Unif. Interstate Family Support ActŠ(UIFSA) § 101(19)(ii) (1999). The 2008 UIFSA contains an identical provision in section 102(5)(C). 422. 2017 WL 5664695 (Cal. Ct. App. 2017). 423. Id at *6. 424. Unif. Foreign-Country Money Judgments Recognition Act § 4(c)(8) (2005). For discussion of related issues, see N. Meier, Undue Due Process: Why the Application of Jurisdictional Due Process Requirements to the Recognition of Foreign-Country Judgments Is Inappropriate, 18 Or. Rev. Int’l L. 51 (2016). 425. 874 F.3d 604 (9th Cir. 2017) (decided under Washington conflicts law). 426. See id. at 614–16. 427. Id. at 616. 428. 2017 WL 3411811 (3d Cir. 2017). 429. 79 N.E.3d 325 (Ill. App. Ct. 2017). 430. Id. at 332. 431. Md. Code Ann., Cts. & Jud. Proc. § 10–704(b)(4). 432. 848 F.3d 235 (4th Cir. 2017). 433. Id. at 238. 434. 140 Haw. 250, 399 P.3d 802 (Table), 2017 WL 3228267 (Haw. Ct. App. 2017) (unpublished). 435. From this year’s literature on recognition of foreign judgments, see, e.g., R.A. Brand, The Continuing Evolution of U.S. Judgments Recognition Law, 55 Colum. J. Transnat’l L. 277 (2017); R.A. Mella, The Enforcement of Foreign Judgments in the United States: The Chevron Corp. v. Donziger Case, 49 N.Y.U. J. Int’l L. & Pol. 635 (2017); S.N. Park, Recognition and Enforcement of Foreign Provisional Orders in the United States: Toward A Practical Solution, 38 U. Pa. J. Int’l L. 999 (2017). 436. 852 F.3d 1107 (D.C. Cir. 2017), reh’g en banc denied (June 7, 2017), cert. denied, 2017 WL 3536655 (U.S. Nov. 13, 2017). 437. 9 U.S.C. § 10(a)(2). 438. See, e.g., Belize Bank, 852 F.3d at 1112 (“[A]n English chambers is composed of independent solo practitioners housed together and operating under a common name, a structure vastly different from an American law firm in which, inter alia, confidential client information—as well as assets and liabilities—are shared among partners.”). 439. See id. (“[W]e find the case law relied on by Belize, which details ethical concerns underlying firm-wide imputation of conflicts of interest, inapposite even if a violation of United States’ domestic arbitration requirements under the FAA were sufficient to satisfy Article V(2)(b). That case law is premised on the presumption that ‘associated’ attorneys share client confidences.”). 440. Id. (internal quotation marks, citations, and brackets omitted). 441. Id. at 1114. 442. 862 F.3d 45 (D.C. Cir. 2017). 443. Id. at 48. 444. Id. at 49. 445. 864 F.3d 172 (2d Cir. 2017). 446. Fed. Rule Civ. Proc. 60(b)(5). 447. Thai-Lao, 864 F.3d at 183 (quoting TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 938–39 (D.C. Cir. 2007)). 448. Id. at 183–84. 449. Id. at 184 (internal quotation marks omitted). 450. 863 F.3d 96 (2d Cir. 2017). 451. 2017 WL 4772435 (2d Cir. 2017). 452. From this year’s literature on enforcement of foreign arbitral awards, see, e.g., J. Beatson, International Arbitration, Public Policy Considerations, and Conflicts of Law: The Perspectives of Reviewing and Enforcing Courts, 33 Arb. Int’l 175 (2017); G.A. Bermann, “International Standards” as a Choice of Law Option in International Commercial Arbitration, 27 Am. Rev. Int’l Arb. 423 (2016); R. Rana, The Enforcement of Awards Set Aside at the Seat: An Asian and European Perspective, 40 Fordham Int’l L.J. 813 (2017); A. Seyedfarshi, Public Policy Exception in Enforcement of Foreign Judgments: Setting Aside an Award in the Country of the Seat of Arbitration, 16 Pepp. Disp. Resol. L.J. 407 (2016); L. Silberman & N. Yaffe, The US Approach to Recognition and Enforcement of Awards After Set-Asides: The Impact of the Pemex Decision, 40 Fordham Int’l L.J. 799 (2017). © The Author(s) [2018]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
TI - Choice of Law in the American Courts in 2017: Thirty-First Annual Survey
JF - American Journal of Comparative Law
DO - 10.1093/ajcl/avy006
DA - 2018-03-01
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