Choice of Law Rules USA 2008

Choice of Law in the American Courts in 2008: Twenty-Second Annual Survey
Author(s): SYMEON C. SYMEONIDES

Source: The American Journal of Comparative Law, Vol. 57, No. 2 (SPRING 2009), pp. 269-329
Published by: American Society of Comparative Law
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SYMEON C. SYMEONIDES*
Choice of Law in the American Courts in 2008:
Twenty-Second Annual Survey
Table of Contents
I. Introduction. 270
II. Methodology. 272
A. Torts. 272
B. Contracts. 275
C. The Methodological Table. 278
III. Torts . 280
A. Employment Injuries. 280
B. Common-Domicile Cases. 283
C. Cross-Border Torts. 288
D. Other Torts. 291
IV. Products Liability. 292
A. Foreign Plaintiffs and Forum Non Conveniens. 292
B. Inverse Conflicts. 296
C. Direct Conflicts. 299
V. Contracts . 301
A. Contracts with Choice-of-Law Clauses. 301
B. Choice of an Invalidating Law. 303
C. Contracts Without Choice-of-Law Clauses . 304
D. Insurance Contracts. 306
1. Automobile Insurance. 306
2. Other Insurance Contracts. 307
VI. Domestic Relations . 310
A. Marriage. 310
B. Divorce, Marital Property and Alimony. 312
C. Adoption, Child Custody, and Child Support. 314
VII. Statutes of Limitation. 315
VIII. Recognition of Judgments. 315
IX. U.S. Law in the International Arena. 317
A. The Extraterritorial Reach of the U.S.
Constitution. 317
1. Habeas Corpus. 317
* Dean & Alex L. Parks

Distinguished Professor ofLaw, Willamette University
College of Law; LL.B. (Priv. L.), LL.B. (Publ. L.), Aristotelian of Thes
University
saloniki; LL.M., S.J.D., Harvard Law School.
269

270 the american journal of comparative law [Vol. 57
2. Fourth Amendment. 320

3. Fifth Amendment. 320
B. Application ofFederal Law toCases with Foreign
Elements. 322
1. The Alien Tort Statute. 322
2. Other Statutes. 325
C. The Domestic Effect oflCJ Judgments. 326
D. Jurisdiction and Forum Non Conveniens. 328
I. Introduction
This is the Twenty-Second Annual Survey ofAmerican Choice-of

Law Cases.1 It is written at the request of the Association of Ameri
can Law Schools Section on Conflict of Laws2 and is intended as a
service to fellow teachers and students of conflicts law, both within
and outside the United States. Its purpose remains the same as it has
been from the beginning?to inform, rather than to advocate.
The Survey covers cases decided by American state and federal
appellate courts from January 1 to December 31, 2008, and reported
1. The previous twenty-one surveys are, in chronological order: P. John Kozyris,

Choice of Law in the American Courts in 1987: An Overview, 36 Am. J. Comp. L. 547
(1988); Symeon C. Symeonides, Choice ofLaw in theAmerican Courts in 1988, 37 Am.
J. Comp. L. 457 (1989); P. John Kozyris & Symeon C. Symeonides, Choice ofLaw in
the American Courts in 1989: An Overview, 38 Am. J. Comp. L. 601 (1990); Larry
Kramer, Choice of Law in the American Courts in 1990: Trends and Developments, 39
Am. J. Comp. L. 465 (1991); Michael E. Solimine, Choice of Law in the American
Courts in 1991, 40 Am. J. Comp. L. 951 (1992); Patrick J. Borchers, Choice ofLaw in
the American Courts in 1992: Observations and Reflections, 42 Am. J. Comp. L. 125
(1994); Symeon C. Symeonides, Choice ofLaw in theAmerican Courts in 1993 (and in
the Six Previous Years), 42 Am. J. Comp. L. 599 (1994); Symeon C. Symeonides, Choice
ofLaw in theAmerican Courts in 1994: A View 'From theTrenches/ 43 Am. J. Comp.
L. 1 (1995); Symeon C. Symeonides, Choice ofLaw in theAmerican Courts in 1995: A
Year inReview, 44 Am. J. Comp. L. 181 (1996); Symeon C. Symeonides, Choice ofLaw
in theAmerican Courts in 1996: Tenth Annual Survey, 45 Am. J. Comp. L. 447 (1997);
Symeon C. Symeonides, Choice of Law in theAmerican Courts in 1997, 46 Am. J.
Comp. L 233 (1998); Symeon C. Symeonides, Choice ofLaw in theAmerican Courts in
1998: TwelfthAnnual Survey, 47 Am. J. Comp. L. 327 (1999); Symeon C. Symeonides,
Choice ofLaw in theAmerican Courts in 1999: One More Year, 48 Am. J. Comp. L. 143
(2000); Symeon C. Symeonides, Choice ofLaw in theAmerican Courts in 2000: As the
Century Turns, 49 Am. J. Comp. L. 1 (2001); Symeon C. Symeonides, Choice ofLaw in
theAmerican Courts in 2001: Fifteenth Annual Survey, 50 Am. J. Comp. L. 1 (2002);
Symeon C. Symeonides, Choice ofLaw in theAmerican Courts in 2002: Sixteenth An
nual Survey, 51 Am. J. Comp. L. 1 (2003); Symeon C. Symeonides, Choice ofLaw in the
American Courts in 2003: Seventeenth Annual Survey, 52 Am. J. Comp. L. 9 (2004);
Symeon C. Symeonides, Choice of Law in theAmerican Courts in 2004: Eighteenth
Annual Survey, 52 Am. J. Comp. L. 919 (2004); Symeon C. Symeonides, Choice ofLaw
in theAmerican Courts in 2005: Nineteenth Annual Survey, 53 Am. J. Comp. L. 559
(2005); Symeon C. Symeonides, Choice ofLaw in theAmerican Courts in 2006: Twen
tiethAnnual Survey, 54 Am. J. Comp. L. 697 (2006); and Symeon C. Symeonides,
Choice ofLaw in theAmerican Courts in2007: Twenty-FirstAnnual Survey, 56 Am. J.
Comp. L. 243 (2008). 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 ofAmerican Law
Schools or its Section on Conflict of Laws.

2009] CHOICE OF LAW IN THE AMERICAN COURTS IN 2008 271
during the same period. Of the 3,533 conflicts cases meeting both of
these parameters,3 the Survey focuses on those of the 1,194 appellate
cases that may add something new to the development or under
standing of conflicts law and particularly choice of law.
The following are among the cases discussed in this Survey:
Two U.S. Supreme Court cases and several intermediate court

cases delineating the extraterritorial reach of the Constitution and
federal statutes, and one Supreme Court case on the domestic ef
fect of a judgment of the International Court of Justice (Part IX);
A New Jersey Supreme Court case abandoning Currie's interest
analysis in tort conflicts and adopting the Restatement (Second),
and a New Mexico Supreme Court case abandoning the traditional
approach in contract conflicts (but only in class actions) and adopt
ing the "false conflictdoctrine" of the Restatement (Second) (Part
II);
Several cases applying (and one not applying) the law of the par
ties' common domicile to cases arising from torts occurring in
another state (III.B);
Several cases involving cross-border torts and applying the law of

whichever of the two states (conduct or injury) favors the plaintiff
(III.C);
Several product liability cases granting forum non conveniens dis
missals in favor of alternative fora in foreign countries, and those
countries' responses by enacting "blocking statutes" (IV.A);
Several cases refusing to enforce clauses precluding class-action or

class-arbitration, and one case applying a contractually chosen law
that invalidated a critical part of the contract (V.A-B);
Three cases illustrating the race to the courthouse between insur
ers and their insureds (V.D.2);
Several New York cases recognizing Canadian and Massachusetts

same-sex marriages, and a case refusing to recognize a Pakistani
talaq (unilateral, non-judicial divorce) (VI.A-B); and
One case refusing to recognize a foreign judgment that conflicted
with a previous judgment fromanother country,and another case
3. Unlike previous years, this Survey covers only appellate cases. These cases
have been identified by searching Westlaw's 2008 "Allcases" database with various
queries, as well as with all the key numbers thatWestlaw uses in placing cases into
its "Conflict ofLaws" database. Of the 3,533 cases, 890 were decided by state appel
late courts, 304 by federal appellate courts and 2,284 by federal courts. Based on data
fromprevious years, it is expected that,when the remaining 2008 cases are posted in
Westlaw in the firstweeks of 2009, the total number of 2008 conflict cases will ap
proach 4,000.

resolving an ambiguity in the Uniform Foreign Money-Judgments

Recognition Act (VIII).
II. Methodology
A. Torts
In 1967, New Jersey was one of the first states to abandon the
traditional lex loci delicti rule and to adopt Brainerd Currie's interest
analysis.4 New Jersey continued to follow that approach?albeit with
the weighing of state interests5 that Currie decried?even though all
but two other jurisdictions had switched to another modern ap
proach. The other two jurisdictions are California, which in true
conflicts complements interest analysis with comparative impair
ment, and the District of Columbia, which also weighs state interests
in true conflicts. In two of its recent and rather poorly reasoned deci
sions, the New Jersey Supreme Court also relied on the Restatement
(Second), albeit in a rather secondary fashion.6 In the 2008 case P. V.
v. Camp Jaycee,7 the court officially completed its switch to the Re
statement (Second).8
Aside from the outcome, Camp Jaycee was eerily similar to the
famous New York case Schultz v. Boy Scouts of America, Inc.,9 in
which the New York Court of Appeals applied New Jersey's charita
ble immunity rule and barred an action between New Jersey
domiciliaries arising from sexual misconduct in New York. The plain
tiff in Camp Jaycee was a twenty-year-old mentally challenged New
Jersey domiciliary who attended a summer camp in Pennsylvania
run by defendant Camp Jaycee, a New Jersey charitable corporation.
While at the camp, plaintiff was allegedly sexually assaulted by an
other summer camp attendee, causing the plaintiff to suffer personal
injuries. The plaintiffs suit against Camp Jaycee was barred by New
Jersey's charitable immunity rule but not by Pennsylvania law. The
4. See Mellk v. Sarahson, 229 A.2d 625 (N.J. 1967).

5. See, e.g., Eger v. E.I. Du Pont De Nemours Co., 539 A.2d 1213 (N.J. 1988).
6. See Erny v. Estate ofMerola, 792 A.2d 1208 (N.J. 2002) (discussed in Symeo
nides, 2002 Survey 15-17; applying New York's pro-plaintiffjoint and several liability
rule to a case arising out of a New Jersey accident involving a New Jersey plaintiff
and New York defendants); Fu v. Fu,733 A.2d 1133 (N.J. 1999) (discussed in Symeo
nides, 1999 Survey 153-154; applying New York's pro-plaintiff car-owner liability
statute to a case arising out of a New York accident caused by a car rented in New
from a Pennsylvania car rental company and injuring a New Jersey plaintiff).
Jersey
7. 962 A.2d 453 (N.J. 2008).
8. For other 2008 New Jersey cases decided under interest analysis before Camp
see Dolan v. Sea Transfer Corp., 942 A.2d 29 (N.J. Super. Ct. App. Div. 2008),
Jaycee,
cert, denied, 950 A.2d 907 (N.J. May 16, 2008) (discussed infra at III.C); Varo v.
Owens-Illinois, Inc., 948 A.2d 673 (N.J. Super. Ct. App. Div. 2008) (discussed infra at
IV.A); Smith v. Alza Corp., 948 A.2d 686 (N.J. Super. Ct. App. Div. 2008) (discussed
infra at IV.D); Thabault v. Chait, 541 F.3d 512 (3d Cir. 2008) (decided under New
Jersey conflicts law).
9. 480 N.E.2d 679 (N.Y. 1985).

2009] CHOICE OF LAW IN THE AMERICAN COURTS IN 2008 2 73
trial court dismissed the suit under New Jersey law, concluding that
New Jersey's interests in protecting New Jersey charities outweighed
Pennsylvania's interest in subjecting charities to the same tort rules
as other private entities. The Appellate Division reversed, finding
that Pennsylvania's interest in regulating the conduct of people act
ing within its territory outweighed New Jersey's interest in
immunizing its charitable corporations.10 Applying the Restatement
(Second), the New Jersey Supreme Court affirmed in a four-to-three
decision.
The court began its discussion with section 146 of the Restate
ment, which provides that, in personal injury actions, the law of the
place of conduct and injury governs "unless, with respect to the par
ticular issue, some other state has a more significant relationship
under the principles stated in ? 6."11 The court characterized this as
an "intuitively correct principle" because "the state in which the in
jury occurs is likely to have the predominant, if not exclusive,
relationship to the parties and issues in the litigation."12 After dis
cussing the contacts listed in section 145, the court concluded that
the presumption of section 146 was not overcome. Both the conduct
and the injury occurred in Pennsylvania, and the parties' presence
there was prolonged and not fortuitous. Additionally, said the court,
the parties' relationship was centered there because? although both
parties were New Jersey domiciliaries? plaintiff "chose to attend
camp in Pennsylvania" and the defendant was incorporated "for the
of a camp . . . in . . .
primary purpose running solely Pennsylvania"
and that state was "the principal place of the business for which it
was incorporated."13
The court then turned to the policy factors of section 6 of the Re
statement (Second), focusing primarily on the interests of the two
states. The court noted New Jersey's interest in protecting its chari
table corporations through its "post-event loss-allocation policy" of
charitable immunity.14 However, the court concluded that this inter
est was weakened by the fact that the defendant corporation chose to
operate outside New Jersey and caused the injury outside New
Jersey.15
10. The Appellate Division's opinion is discussed in Symeonides, 2007 Survey

258-60.
11. Restatement (Second) of Conflict of Laws ?146 (1971).
12. Camp Jaycee, 962 A.2d at 461.
13. Id. at 462 (italics in original). See also id. ("Even if [plaintiff]signed on as a
camper administrative office in New ... it is of little
through Camp Jaycee's Jersey
consequence because this is not a contracts case. Rather, it is a tort action and, from
that perspective, there is no question that [plaintiffs]relationship with Camp Jaycee
was centered on her camp experience in . . .
Pennsylvania.")
14. Id. at 463.
15. See id. at 466. as here, . . . the to perform its pri
([W]here, corporation opts
mary charitable acts outside the state, the strength of that contact is diluted. Indeed,
immunity laws are designed to encourage persons to engage in the particular conduct

274 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
In contrast, the court found Pennsylvania's interest to be very

strong. Following Justice Jasen's dissenting opinion in Schultz,16 the
court characterized Pennsylvania's non-immunity rule as conduct
regulating: "[W]hen a state decides to abrogate its charitable immu
nity law, it typically does so with the intention of insuring due
care."17 In light of defendant's "continuous and deliberate presence
. . . and in Pennsylvania," the court reasoned, Penn
activity"
sylvania's "interest in conduct-regulation" was particularly strong:
If Pennsylvania's tort law is to have any deterrent impact
and protect other campers from the type of harm inflicted
upon [plaintiff],itmust be applied in situations where tort
feasors repeatedly perform their tasks within the state, re
gardless of the home state of the campers. Indeed, there is no
way for a state to "make its territory safe for residents with
out making it safe for visitors too."18
The court compared the interests of the two states in light of

their contacts and concluded that New Jersey's interests should yield:
Pennsylvania's policy of conduct-regulation and recompense

is deeply intertwined with the various Pennsylvania con
tacts in the case. On the contrary, New Jersey's loss
allocation policy does not warrant the assignment of priority
to the parties' domicile in New Jersey in connection with ac
tivities outside the state's borders.19
The court concluded:
[N] either the [section 145] contacts themselves nor the sec
tion 6 considerations support the conclusion that New Jersey
has a more significant relationship to the case than Penn
sylvania. In fact, the converse is true. Although we recognize
the vitality of our own policy of immunizing charities, in this
case, itmust yield to the presumption favoringapplication of
Pennsylvania law, which has not been overcome.20
within the state.Where defendant's conduct takes place in another state, the immu
nity goals are diminished.").
16. The court found that this case was "entirely distinct fromSchultz insofar as
the Boy Scout troop in Schultz was chartered in New Jersey and the assault took
place on an outing toNew York .... In fact, some assaults inSchultz also took place
inNew Jersey. Here, the camp was a fixture in Pennsylvania and the assaults and
the injury occurred there." Id. at 466 n.8.
17. Id. at 464.
18. Id. at 466 (quoting Louise Weinberg, Against Comity, 80 Geo. L.J. 53, 89
(1991)).
19. Id. at 468.
20. Id.

Three members of the court dissented, criticizing the majority

both for adopting the Restatement (Second) and for applying Penn
sylvania law.
Camp Jaycee is the third recent case in which the New Jersey
Supreme Court has applied the pro-plaintiff law of another state for
the benefit of a New Jersey plaintiff.This time, at least the plaintiffs
recovery came from another New Jersey domiciliary. In the other two
cases, recovery came at the expense of a non-forum defendant.21 In
three other cases, the same court extended the benefit of its pro
plaintiff law to foreign plaintiffs at the expense of domestic defend
ants;22 in two cases, it denied that benefit;23 and in one case, the
court applied another state's pro-defendant law for the benefit of a
non-forum defendant at the expense of a forum plaintiff.24 None of
these cases involved the common-domicile pattern. In the two cases
that did involve that pattern, the court applied the law of the com
mon domicile not only when it favored the plaintiff,25 but (unlike
Camp Jaycee) also when it favored the defendant.26
B. Contracts
New
Mexico has been one of ten states to follow the traditional
methodology in tort conflicts and one of twelve states that has done
likewise in contract conflicts.27 The New Mexico Supreme Court had
displayed an occasional willingness to consult the Restatement (Sec
ond), but, prior to 2008, the court had not encountered an opportunity
21. See Erny v. Estate ofMerola, 792 A.2d 1208 (N.J. 2002) and Fu v. Fu, 733
A.2d 1133 (N.J. 1999), supra note 6.
22. See Pfau v. Trent Aluminum Co., 263 A.2d 129 (N.J. 1970) (refusing to apply
Iowa's guest statute and allowing recovery under New Jersey's pro-plaintiff law in a
case arising out of an Iowa accident involving a New Jersey defendant and a Connect
icut plaintiff); D'Agostino v. Johnson & Johnson, Inc. 628 A.2d 305 (N.J. 1993)
(applying New Jersey's pro-plaintiff law to a case of retaliatory discharge of a Swiss
employee from a Swiss subsidiary of a New Jersey corporation; the discharge was
orchestrated by executives of the parent corporation in New Jersey); and Gantes v.
Kason Corporation, 679 A.2d 106 (N.J. 1996) (applying New Jersey's pro-plaintiff
statute of limitation to a product liability action filed against a New Jerseymanufac
turer by the family of a Georgia woman killed by the product inGeorgia).
23. See Heavner v. Uniroyal, Inc., 305 A.2d 412 (N.J. 1973) (applyingNorth Caro
lina's statute of limitation to bar a products liability action by a North Carolina
plaintiff against a New Jerseymanufacturer and arising out of injury inNorth Caro
lina); Rowe v. Hoffman-La Roche, Inc., 917 A.2d 767 (N.J. 2007) (discussed in
Symeonides, 2007 Survey 273-78).
24. Eger v. E.I. Du Pont De Nemours Co. 539 A.2d 1213 (N.J. 1988) (applying
South Carolina's workers' compensation law,which immunized a South Carolina con
tractor from suit filedby a New Jersey employee of a New Jersey subcontractor, in a
case arising out of South Carolina injury).
25. See Mellk v. Sarahson, 229 A.2d 625 (N.J. 1967) (refusing to apply Ohio's
guest statute in a case arising from an Ohio accident involvingNew Jersey parties).
26. See Veazey v. Doremus, 510 A.2d 1187 (N.J. 1986) (applying Florida inter
spousal immunity rule, rather than New Jersey non-immunity rule, to a case arising
from a New Jersey accident involving Florida spouses).
27. For a list of the lex loci delicti and lex loci contractus states, see infra II.C.

to revisit the matter since the mid-1990s.28 In Ferrell v. Allstate In

surance Company,29 a class-action case, the court had a limited
opportunity to consider its choice-of-law methodology in contract con
flicts, and the court made the most of it.
Ferrell was a breach-of-contract class action30 filed against All
state Insurance Company by its insureds, who bought their policies
(andwere domiciled) in fifteen states.31After findingthat the laws of
thirteen of the fifteen states were substantially similar to New Mex
ico law, the district court certified the class under New Mexico law for
the plaintiffs from those thirteen states. The Court of Appeals, how
ever, decertified the class, reasoning that the laws of the thirteen
states "potentially" conflicted due to ambiguities and lack of appellate
precedents in some of those states. Because of these potential con
flicts, New Mexico law could not be applied to the claims of all
plaintiffs. Instead, under New Mexico's lex loci contractus rule, the
court had to apply the laws of each state in which the insurance con
tracts were made, thus rendering the class unmanageable.
The New Mexico Supreme Court reversed. The court approved
the lower court's use of "the 'false conflict' doctrine"32 as the initial
step for deciding whether to certify a class. However, the supreme
court opted instead to use the terms "non-conflict" and "actual con
flict" in order to avoid any confusion from the dual meaning of the
28. For torts, see Torres v. State, 894 P.2d 386 (N.M. 1995) the
(acknowledging
court's past adherence to the lex loci delicti rule, but refusing to apply it and instead
using a reasoning that approximated a modern policy analysis); Estate of Gilmore,
946 P. 2d 1130 (N.M. Ct. App. 1997) (acknowledging that theNew Mexico Supreme
Court "ha[d] not embraced the Restatement Second ... in either tort or contract," id.
at 1136, but relying heavily on the Restatement (Second) and concluding that "policy
considerations may override the place-of-the-wrong rule." Id. at 1135). For contracts,
see State Farm Mut. Ins. Co. v. Conyers, 784 P.2d 986 (N.M. 1989). But see Shope v.
State Farm Ins. Co., 955 P.2d 515 (N.M. 1996) (applying the lex loci contractus with
out discussion); Reagan v. McGee Drilling Corp., 933 P.2d 867 (N.M. Ct. App. 1997),
cert,denied, 932 P.2d 498 (applying alternatively the public policy exception to the lex
loci and the Restatement (Second)).
29. 188 P.3d 1156 (N.M. 2008).
30. For other state supreme court cases affirming class certifications under the
law of the forum, see FirstPlus Home Loan Owner 1997-1 v. Bryant,_S.W.3d_,
2008 WL 518226 (Ark. Feb. 28, 2008), reh'g denied (Apr. 10, 2008); General Motors
Corp. v. Bryant,_S.W.3d_, 2008 WL 2447477 (Ark. June 19, 2008). For a case
affirming class certification under the forum's statute of limitations and the substan
tive law of another state, see Masquat v. DaimlerChrysler Corp., 195 P.3d 48 (Okla.
2008), reh'g denied (Oct. 27, 2008). For a case affirminga denial of class certification
after finding forum law inapplicable, see Landau v. CNA Financial Corp., 886 N.E.2d
405 (111.App. 1st Dist. 2008), appeal denied, 897 N.E.2d 253 (111.2008). For a case
dismissing a nationwide class action for lack of standing under forum law, without a
choice-of-law analysis, see DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299 (Tex.
2008).
31. The plaintiffs contended thatAllstate breached its contractswith plaintiffsby
failing to include installment fees that are charged when an insured opts to pay the
premium in monthly installments rather than in one lump sum.
32. See Ferrell, 188 P.3d at 1164.

term "false conflict" and any association with Currie's interest

analysis.33
The court noted that, under Phillips Petroleum Co. v. Shutts34
and Sun Oil Co. v. Wortman35 the forum may constitutionally apply
its own law to the claims of all plaintiffs in a multistate class action if
there is no actual conflict between that law and the laws of the other
states involved. The court held that, although the class plaintiffs bear
the initial burden of showing that the various states' laws are sub
stantially similar (a "non-conflict"), the plaintiffs should not be
required to prove the absence of an actual conflict in order to obtain
class certification. Instead, the party opposing certification must es
tablish the existence of an actual, and not merely a hypothetical,
conflict. Finding in this case that the class plaintiffs had carried the
burden of showing a non-conflict but the defendant did not carry its
burden of showing an actual conflict, the court reinstated the class
certification and upheld the district court's decision to apply New
Mexico law.
The supreme court acknowledged that the adoption of the "actual
conflict doctrine" represented a "divergence" from the First Restate
ment, which, as the court correctly noted, "does not contemplate a
comparison of the laws of the states involved."36 However, reasoning
that such a divergence was dictated by New Mexico's class action
rule,37 the court approved this doctrine "for the benefit of our class
action jurisprudence."38
The court could have stopped there, but it did not. Instead, the
court criticized the First Restatement (especially its jurisdiction-se
lecting nature) in a way that went beyond the needs of the particular
case. Moreover, the court went out of its way to praise the Restate
ment (Second)?even though the "actual conflict doctrine," which the
court adopted, is a common feature of all modern choice-of-law meth
odologies, not just the Restatement (Second). After noting that
twenty-four other states have rejected the First Restatement and
adopted the Second Restatement, the court concluded that
33. See id. at 1164 n.2. The first meaning of false conflict, used in Currie's interest
analysis, describes cases in which only one of the involved states has an interest in
applying its law. The second meaning describes cases in which the laws of the in
volved states produce the same outcome. The Ferrell court adopted the second
meaning, calling it "non-conflict."
34. 472 U.S. 797 (1985).
35. 486 U.S. 717 (1988).
36. Id. at 1171.
37. See id. ("If a court finds that the laws of the relevant states are similar enough
to meet the predominance requirement, but then has to apply the laws of the state
where the insured entered into the contract, the district court's analysis regarding
predominance would have been in vain.")
38. Id.

the rigidity of the Restatement (First) is particularly ill

suited for the complexities present in multi-state class ac
tions. It does not allow a court to consider the competing
policies of the states implicated by the suit.We conclude that
the Restatement (Second) is a more appropriate approach for
multi-state contract class actions.39
As the last quoted sentence indicates, the court's adoption of the

Restatement (Second) is limited to "contract class actions." Read in
the narrow context of the Ferrell case, this means at a minimum that
New Mexico will use the Restatement in contract class actions in
which the laws of the involved states would produce the same out
come (i.e., false conflicts). This leaves several methodological
questions unanswered, including whether the court will also rely on
the Restatement (Second) in: (1) contract class actions inwhich the
laws of the involved states would produce different outcomes ("actual
conflicts");40 or (2) individual contract actions which present a false
conflict (why not?) or an actual conflict. Indeed, the logic of Ferrell
would also apply to all cases that present false conflicts, be they (a)
individual contract actions, (b) tort class actions, or (c) individual tort
actions. In fact, the New Mexico Court ofAppeals has already applied
the "false conflict doctrine" to an individual contract action.41 Even
so, it is better to err on the side of caution and keep New Mexico in
the traditional column for both tort and contract conflicts but add an
asterisk for class actions.
C. The Methodological Table
New Jersey's abandonment of interest analysis in favor of the

Restatement (Second) causes a minor shift in the methodological
count, with the interest analysis column dropping to two jurisdic
tions?California and the District of Columbia. In light of the pivotal
role that interest analysis played in the choice-of-law revolution, this
is a remarkable development. In fact, a more literal classification
might place even these two jurisdictions elsewhere, insofar as they
engage in the very weighing of state interests that Currie proscribed.
District of Columbia courts weigh interests openly and unapologeti
39. Id. at 1173 (footnoteomitted).

40. In Fiser v. Dell Computer Corp., 188 P.3d 1215 (N.M. 2008), which was de
cided after Ferrell and involved a contract containing a choice-of-law
twenty days
clause and a clause class actions, the court did not mention the Restate
prohibiting
ment or Ferrell. Fiser is discussed infra at V.A.
41. See Fowler Brothers, Inc. v. Bounds, 188 P.3d 1261 (N.M. Ct. App. 2008) (dis
an action filed by an Arizona sub-contractor against a New Mexico contractor
missing
arising out of an Arizona construction project because the laws of both states required
a contractor's licence, which plaintiff did not have).

2009] choice of law in the american courts in 2008 2 79
cally,42 while California courts prefer to weigh not the interests

themselves but the impairment thatwould result from subordinating
those interests.43 Thus, a more technical classification might move
these jurisdictions to differentcolumns, leaving completely blank the
interest-analysis column four decades after Currie's death.
However, this should not suggest that Currie's influence has dis
appeared. First, an interest analysis traceable to Currie forms the
core of most of the "combined modern" approaches followed in the
states listed in that last column of the table below. Second, interest
analysis is oftenheavily employed in states that generally follow the
Second Restatement, especially in cases in which the factual contacts
are evenly divided between the involved states.44 Thus, in the same
manner that the high numerical following of the Restatement (Sec
ond) tends to inflate its actual importance in deciding cases, the low
numerical following of Currie's original approach tends to undervalue
the importance of this approach in influencing judicial decisions.
With this and other caveats and qualifications detailed in the
Surveys of previous years, here is the updated methodological table.
Table 1. Alphabetical List of States and Choice-of-Law

Methodologies Followed
Signif. Restate- Interest Lex Better Combined

States Traditional Contacts ment 2d Analysis Fori Law Modern
Alabama_T+C_
Alaska_T+C_
Arizona T+C
Arkansas C T
California_T_C
Colorado_T+C_
Connecticut_T+ C?_
Delaware_T+C_
Dist. of
Columbia_T_C
Florida_C_T_ZZZIH_
Georgia_T+C_
Hawaii_T+C
Idaho_T+C_
Illinois_T+C
Indiana_T+C_
T+C
Iowa_
Kansas_T+C_
T
Kentucky_C
42. See, e.g., Kaiser-Georgetown Comm. Health Plan, Inc. v. Stutsman, 491 A.2d
502 (D.C. App. 1985).
43. See, e.g., Kearney v. Salomon Smith Inc., 137 P.3d 914 (Cal.
Barney, 2006),
discussed in Symeonides, 2007 Survey 243, 249-52.
44. See Symeon C. Symeonides, The Judicial Acceptance of theSecond Conflicts
Restatement: A Mixed Blessing, 56 Md. L. Rev. 1248, 1262-63 (1997).

Signif. Restate- Interest Lex Better Combined

Contacts ment 2d Analysis Fori Law Modern
States_Traditional
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*45_
New
York_T+C
N.
Carolina_T_C_
North
Dakota_T_C
Ohio_T+C_
Oklahoma_C_T_
Oregon_T+C
T+C
Pennsylvania_
Puerto
Rico_T+C_
Rhode
Island_C_T_
S.
Carolina_T+C_
S.
Dakota_T+C_
Tennessee
C_T_
Texas_T+C_
Utah_T+C_
Vermont_T+C_
Virginia_T+C_
Washington_T+C_
West
Virginia_T_C_
Wisconsin_T+C_
Wyoming_T+C_
TOTAL 52 Torts 10 Torts 3 Torts 24 Torts 2 Torts 2 Torts 5 Torts 6
0 |Contr. 2 10
_I
Contr. 12
|Contr. 5 |Contr. 23 |Contr.
0
|Contr. |Contr.
T = Torts C = Contracts
III. Torts
A. Employment Injuries
Jaiguay v. Vasquez46 was a tort action filed in Connecticut by the
estate of a New York domiciliarywho was killed in a trafficaccident
while riding as a passenger (with six others) in a pickup truck driven
by his co-employee. The accident occurred while the truck was briefly
45. See Ferrell v. Allstate, discussed supra II.B.

46. 948 A.2d 955 (Conn. 2008).

passing through Connecticut en route from its point of departure in

New York to a destination inNew York. Both the deceased and the
driver worked for a New York
employer and the action was filed
against the driver. An
exception to the exclusivity provision of Con
necticut's workers' compensation statute allowed a tort action
against a co-employee for cases in which the injury was caused by a
co-employee's negligent operation of a motor vehicle. New York's
workers' compensation statute did not allow such an exeption. The
Supreme Court of Connecticut affirmed a summary judgment for the
defendant under New York law.
In previous cases, the court had articulated a three-prong test
that would allow the application of Connecticut workers' compensa
tion law ifConnecticut was: (a) the place of injury, (b) the place of the
employment contract, or (c) the place of employment relationship. Be
cause in this case the injury occurred in Connecticut, that state's
workers' compensation statute would be applicable and would permit
the tort action against the co-employee. However, the court concluded
that this test should apply "onlywhen the case involves a claim for
workers' compensation benefits and not when, as in the present case,
the case involves a tort claim."47
The court justified this distinction by contrasting the two catego
ries of cases. In workers' compensation cases, the court reasoned, the
issue is whether Connecticut has a "sufficient interest" in awarding
workers' compensation benefits under its law. Consequently, the
choice-of-law question in these cases is "not whether Connecticut has
the most significant relationship to or interest in the matter but,
rather, whether Connecticut's relationship or interest is sufficiently
significant to warrant an award of benefits under its workers' com
pensation statutes."48 In contrast, a "markedly different" choice-of
law question is posed in cases involving tortactions fallingwithin the
exceptions to the exclusivity provisions of Connecticut's workers'
compensation statute. In these cases, the choice-of-law question is
"not which state . . . has a sufficient interest in having its statutes
invoked for the benefit of the employee . . . [but] rather . . .which
state's law, to the exclusion of the law of all other potentially inter
ested states, is the governing or controlling law."49 This question, the
court concluded, should be answered under the court's general ap
proach for tort conflicts, namely the Restatement (Second).
Applying the Restatement, the court concluded that New York
law should govern, barring the action. New York had multiple con
tacts, including its status as the home state of all parties and the
place of the employment relationship. Normally, the fact that the de
47. Id. at 970 (emphasis added).

48. Id. (emphasis in original).
49. Id. at 971 (emphasis in original).

fendant was driving in excess of Connecticut's speed limit (by forty

miles per hour) at the time of the accident would implicate Connecti
cut's interests in conduct-regulation. However, the court reasoned,
this interest is "diminished when the offending conduct occurs during
a brief entry into the state and when any accident that occurs as a
result of the undue speed or recklessness does not involve a Connecti
cut resident."50 Moreover, "Connecticut's interest in deterring and
punishing reckless driving [was] largely satisfied by [the driver's]
conviction of negligent homicide in this state."51
Thecourt concluded that Connecticut had "little or no interest in
vindicating its policy of permitting actions in accordance with the mo
tor vehicle exception" because Connecticut had "no ties to any person
or party involved in the accident." In contrast, said the court, because
New York was the place of the employment relationship and the vic
tim's home state, New York had "an obvious interest in compensating
the decedent's surviving dependents under its workers' compensation
scheme,"52 even if, one might add, that scheme deprived the depen
dents of the much more efficacious tort action.53
Three other appellate cases decided in 2008 involved similar is
sues. Two cases applied the law of the state of the accident, which
favored the defendant, rather than the law of the employment
state.54 The third case applied the law of the employment state,
which also favored the defendant, rather than the law of the state of
the accident.55 In a fourth case, the issue was whether an employer
who settled in good faithwith his injured employeewas immune from
50.Id. at 975.
51.Id.
52.Id.
53.For another Connecticut case involving similar facts and reaching the same
outcome, see Estate of Hodgate v. Ferraro, No. HHDX04CV054034694S, 2008 WL
4017532 (Conn. Super. Ct. Aug. 5, 2008) (holding that a Massachusetts employee of a
Massachusetts employer who was killed in a Connecticut traffic accident while riding
as a passenger in a car driven by a co-employee was not entitled to a tort action
against his employer under the exception to the exclusivity provisions of Connecti
cut's workers' compensation statute because the case was governed by the
Massachusetts workers' compensation statute).
54. See Estate of Torres v. Morales, 756 N.W.2d 662 (Wis. Ct. App. 2008) (apply
ing Wisconsin workers' compensation statute to bar a tort action against an employee
of a Texas employer filed by the estate of a Texas co-employee who was killed in a
traffic accident inWisconsin while riding as a passenger in a car driven by the defen
dant co-employee; the court did not discuss the Texas workers' compensation statute,
which arguably would have allowed the action); Anderson v. Commerce Const. Ser
vices, Inc., 531 F.3d 1190 (10th Cir. 2008) (decided under Kansas' lex loci delicti rule
and alternatively under the Restatement (Second); applying Kansas' workers' com
pensation statute and barring a tort action against a Nebraska contractor
general
filed by a Nebraska subcontractor's employee who was injured at an employment acci
dent in Kansas; the Nebraska statute would have allowed the action).
55. See Lane v. Celadon Trucking, Inc., 543 F.3d 1005 (8th Cir. 2008) (decided
under Arkansas' conflicts law; applying Indiana workers' compensation statute,
which allowed an Indiana employer to recoup workers' benefits to
compensation paid
its Indiana employee who was injured by a thirdparty in an Arkansas accident and to

2009] choice of law in the american courts in 2008 283
a third-partyclaim for contribution brought by parties who contrib

uted to the employee's injury.The court applied the law of the state of
the injury,which allowed the contribution claim, rather than the law
of the state of the employment relationship, which barred the
claim.56
B. Common-Domicile Cases
Camp Jaycee57 and Jaiguay58 bring to sixty-one the number of

loss-distribution conflicts59 involving the common-domicile pattern
and decided by supreme courts in states that have abandoned the lex
loci delicti rule. Fifty-one of those cases (or eighty-four percent) have
applied the law of the common domicile, regardless of the particular
choice of law methodology the court followed.
Chart 1. Cases Applying Common-Domicile Law
^^^^^^^^^^^
#
exercise a lien against the proceeds of a tort settlement between the employee and the
third party; Arkansas' made-whole doctrine did not allow recoupment).
56. See Palmer v. Freightliner, LLC, 889 N.E.2d 1204 (111.App. Ct. 1st Dist.
2008). For a similar case, see Crete Carrier Corp. v. Barrow, No. 2007-CA-000568
MR, 2008 WL 901912 (Ky. Ct. App. Apr. 4, 2008) (applying law of employment state
rather than accident state and allowing employer's claim of subrogation in settlement
proceeds paid to injured employee by third party tortfeasor). For a non-employment
case involving an insurer's claim of subrogation formedical expenses paid to its in
sured, see Safeco Ins. Co. v. Jelen, 886 N.E.2d 555 (111.
App. Ct. 3d Dist. 2008).
57. Discussed supra at II .A.
58. Discussed supra at III.A.
59. In conduct-regulating conflicts, courts invariably apply the law of the state of
conduct and injury. See Symeon C. Symeonides, The American Choice-of-Law
Revolution: Past, Present and Future 213-20 (2006). Of course, as Camp Jaycee
illustrates, sometimes the issue turns on whether that law is, in fact, conduct
regulating.

284 the american journal of comparative law [vol. 57
Chart 2a. Babcock-Pattern Cases Applying

Common-Domicile Law
Thirty-five of the sixty-one cases involved the Babcock v. Jackson pat

tern (i.e., cases in which the law of the common domicile favors
recoverymore than the law of the state of conduct and injury). In
interest analysis terms, these cases present the classic false conflict
paradigm, where only the state of the common domicile has an inter
est in applying its law. Thirty-three of the thirty-fivecases applied
the law of the common domicile.60 One of the two cases that did not
do so was subsequently overruled,61 and the other case was factually
atypical.62
Twenty-six of the sixty-one cases (decided in eighteen states) in
volved the Camp Jaycee or converse-Bafecocfc pattern (i.e., cases in
which the law of the common-domicile prohibits or limits recovery
more than the law of the state of conduct and injury). These cases are
depicted in the table below.
60. For citations and discussion, see Symeonides, supra note 59, at 146-50; Eu
gene Scoles, Peter Hay, Patrick Borchers & Symeon C. Symeonides, Conflict of
Laws 799-806 (4th ed. 2004).
61. See Dym v. Gordon, 209 N.E.2d 792 (N.Y. 1965).
62. See Peters v. Peters, 634 P. 2d 586 (Haw. 1981). Peters arose out of a Hawaii
trafficaccident inwhich a New York domiciliary was injuredwhile riding in a rented
car driven by her husband. Her suit against her husband, and ultimately his insurer,
was barred by Hawaii's interspousal immunity law, but not by New York's law. The
court applied Hawaii law because the insurance policy that had been issued on the
rental car inHawaii had been written in contemplation ofHawaii immunity law.

2009] choice of law in the american courts in 2008 2 85
Table 2. Law Applied in Converse-Babcock Pattern Cases
_Contact states and their laws_Law applied

Plaintiffs State of State of D's
|
Forum Domicile injury Conduct Dom. Pro-D Pro-P
# 1
Year Case
1 name \ state 1 1 Pro-D [ Pro-P [ Pro-P [ Pro-D \ \_
1 I 1966\McSwainPA I I PA 1 COL j COL j PA I 1 1

j'
2 1966Johnson NH IMMBPI NH NH
1_
3 1968 Conklin W$ ILL
WS W$ ILL
1
4 1968 Arnett ,KY OH KY KY
OH_1_
5 1968 Fuerste IA WSIA WS IA 1
6 1970 Ingersoll ILL WS
ILL WS ILL
1_
7 1971 MA
NH NH
Taylor_NH MA_1
8 1972 Issendorf NP ND , MN MN \ND 1
_
9 1972 Gagne :< MA -
';NH \NH\ y -NH ; MA _ 1
10 1973 Milkovich *'*j?y ON '"'vm\ \ ON_[_
11 1973 WS WS
Hunker_WS |gJB|j||g 1_
12 1978 Gordon NH MA/ME NH NH MA/ME 1
13 1985Johnson_ID ^^^^E IP ID SlBPiI 1
14 1985Schultz NY NY NY 118^1 1
^^^SP
15 1986Veazey NJ IHBB1 NJNJ 1
1118111118811
16 1987Hubbard ^^HK ILL IN ^SsKSi 1
17 1992Chambers lli|jgg| ^^BKIl MO MO1
18 1992Hataway MWBB AR AR 11MB 1
19 1994
Dillon ID ^HHIK ID ID 11111111
20 1995 CAN ME CAN 1
Collins_ME_ ^me
21 1998
Myers VT ^BBBfil VT VT 8MB 1
22 1999Lessard NH ^HH^ NH NH 11H^ 1
23 2000Martineau ||||lig|| Quebec SHPlMWi 1
Quebec
24 2007 NEB COL COL NEB 1
Heinze_NEB
25 2008 Camp Jaycee NJ NJ PA NJ
1 PA
26 2008 Jaiguay CN ^SWS^ CN 1 CN
26 15 18 8 18 8 18 8
Totals_

286 the american journal of comparative law [vol. 57
Chart 2b. Converse-JBabcock Pattern Cases Applying

Common-Domicile Law
As the table indicates, eighteen of the twenty-six cases (or sixty

nine percent) applied the pro-defendant law of the parties' common
domicile.63 In eight of the eighteen cases, that lawwas also the law of
63. In chronological order, these cases are: McSwain v. McSwain, 215 A.2d 677
(Pa. 1966) (Colorado trafficaccident involving Pennsylvania domiciliaries; applying
Pennsylvania intrafamily immunity rule barring wife from suing her husband for
death of infant daughter killed in Colorado accident); Johnson v. Johnson, 216 A.2d
781 (N.H. 1966) (New Hampshire accident involvingMassachusetts spouses; applying
Massachusetts interspousal immunity rule barring wife's action); Fuerste v. Bemis,
156 N.W.2d 831 (Iowa 1968) (Wisconsin accident involving Iowa parties; applying
Iowa guest statute barring suit); Ingersoll v. Klein, 262 N.E.2d 593 (111.1970) (Iowa
accident involving Illinois parties; applying Illinois damages law, which was less
favorable to plaintiff than Iowa law); Issendorf v. Olson, 194 N.W.2d 750 (N.D. 1972)
(Minnesota accident, North Dakota parties; applying North-Dakota's pro-defendant
contributorynegligence rule); Hunker v. Royal Indem. Co., 204 N.W.2d 897 (Wis.
1973) (applying Ohio law barring suits against co-employees, rather thanWisconsin
law that permitted co-employee suits, in action between Ohio residents arising from
automobile collision inWisconsin); Johnson v. Pischke, 700 P.2d 19 (Idaho 1985)
(Idaho accident, Saskatchewan parties; applying Saskatchewan's workers' compensa
tion immunity rule); Schultz v. Boy Scouts of America, Inc., 480 N.E.2d 679 (N.Y.
1985) (applying the charitable immunity rule of New Jersey, the state where the
plaintiffsand one of the defendants were domiciled, rather than the law ofNew York,
the state where thewrongful conduct occurred and which did not provide for charita
ble immunity);Veazey v. Doremus, 510 A.2d 1187 (N.J. 1986) (New Jersey accident
involvingFlorida spouses; applying Florida's interspousal immunity rule, barring the
action); Hubbard Mfg. Co. v. Greeson, 515 N.E.2d 1071 (Ind. 1987) (Illinois injury,
Indiana parties; applying Indiana's pro-manufacturer products liability law); Cham
bers v. Dakotah Charter, Inc., 488 N.W.2d 63 (S.D. 1992) (Missouri accident involving
South Dakota parties; applying South Dakota's pro-defendant contributory negli
gence rule); Hataway v. McKinley, 830 S.W.2d 53 (Term. 1992) (Arkansas accident
involving Tennessee parties; applying Tennessee's pro-defendant contributorynegli
gence rule); Dillon v. Dillon, 886 P.2d 777 (Idaho 1994) (applying Saskatchewan's one
year statute of limitations rather than Idaho's two-year statute of limitations in a
wrongful death action filedby formerwife of Saskatchewan husband for causing the
death of their daughter in a trafficaccident in Idaho); Collins v. Trius, Inc., 663 A.2d
570 (Me. 1995) (applying Canadian law, which did not allow recovery for pain and

the forum state,64 which means that, in those cases, the plaintiffs
chose to sue in their home state even though that state had a pro
defendant law, rather than take advantage of the pro-plaintiff law in
the accident state. In ten of the eighteen cases, the plaintiffs chose to
sue in the state of the accident, which had a pro-plaintiff law, but
were unable to persuade the court to apply its law.65
Eight of the twenty-six cases applied the pro-plaintifflaw of the
state of conduct and injury. Seven of the eight cases (except for Camp
Jaycee) were filed in the accident state, which had a pro-plaintiff law,
and all seven cases applied the law of the forum. Five of those cases
were decided in states that, at least then, followed Leflar's better law
approach ?Wisconsin,66 Minnesota,67 and New Hampshire68?while
the sixth case was decided under Kentucky's unapologetically paro
chial lex fori approach.69 The seventh case was factually atypical,70
and the eighth case was Camp Jaycee,71 in which the plaintiff was
able to persuade the court to apply the pro-plaintiff law of the non
forum state. As Camp Jaycee indicates (assuming a sympathetic
suffering, to a case arising out of a Maine accident involving Canadian parties); Myers
v. Langlois, 721 A.2d 129 (Vt. 1998) (applyingQuebec law and denying a tortaction in
a dispute between Quebec parties arising out of a Vermont accident); Lessard v.
Clark, 736 A.2d 1226 (N.H. 1999) (applying the law ofOntario, the parties' common
domicile, which provided for lower recovery, rather than the law of New Hampshire,
the accident state); Martineau v. Guertin, 751 A. 2d 776 (Vt. 2000) (described in infra
note 70); Heinze v. Heinze, 742 N.W.2d 465 (Neb. 2007) (Colorado accident involving
Nebraska parties; applying Nebraska's guest statute, barring the action).
64. See cases ## 1, 5-6, 8, 16-18, and 24 in above table.
65. See cases ## 2, 11, 13-15, 19-22, and 26 in above table.
66. See Conklin v. Horner, 157 N.W.2d 579 (Wis. 1968) (applyingWisconsin law
to allow an action by Illinois guest-passenger against an Illinois host-driver and aris
ing out of a Wisconsin accident; Illinois' guest statute barred the action). But see the
more recent case Hunker v. Royal Indem. Co., described in supra note 63.
67. See Milkovich v. Saari, 203 N.W.2d 408 (Minn. 1973) (applyingMinnesota law
to allow an action by Ontario guest-passenger against Ontario host-driver arising out
of a Minnesota accident; Ontario's guest statute barred the action).
68. See Taylor v. Bullock, 279 A.2d 585 (N.H. 1971) (New Hampshire accident
involving Massachusetts spouses; applying New Hampshire rule allowing inter
spousal suits rather than Massachusetts rule prohibiting such suits); Gagne v. Berry,
290 A.2d 624 (N.H. 1972) (New Hampshire accident involvingMassachusetts domicil
iaries; applying New Hampshire law, which allowed the action, rather than
Massachusetts' guest statute, which allowed recovery only for injuries caused by gross
negligence); Gordon v. Gordon, 387 A.2d 339 (N.H. 1978) (New Hampshire accident
involving Massachusetts spouses who later moved to Maine; applying New Hamp
shire's law and an action, which was
allowing barred by Maine's interspousal
immunity rule and Massachusetts statute of limitation). But see the more recent case
Lessard v. Clark, described in supra note 63.
69. See Arnett v. Thompson, 433 S.W.2d 109 (Ky. 1968) (applyingKentucky law
and allowing an action between Ohio spouses thatwas barred by Ohio's interspousal
immunity rule and guest statute).
70. This case is Martineau v. Guertin, 751 A.2d 776 (Vt. 2000) (discussed in
Symeonides, 2000 Survey 16). InMartineau, the parties were domiciled in the same
state, but they resided together in another state, and the accident occurred in a third
state (the forum), the law ofwhich was identical to the residence state. This factor
tipped the scales in favor of the accident state.
71. Camp Jaycee is discussed supra at II.A.

court), a plaintiff ismore likely to succeed if she can credibly argue

that the rule of the state of conduct and injury has a strong conduct
regulating component (in addition to its loss-distributing function).
C. Cross-Border Torts
v. Sea Transfer
In Dolan Corp.,72 which was decided by New
Jersey's intermediate court under interest analysis before Camp
Jaycee, the court applied New York's pro-plaintiff law to a case aris
ing from a New Jersey trafficaccident that injured a New Jersey
plaintiff. Interestingly, however, Dolan was one of relatively few traf
fic accident cases inwhich the conduct primarily responsible for the
injury takes place in one state (in this case, New York) and the injury
occurs in another state (New Jersey in this case).
A New York driver acting for his New York employer drove a
tractor-trailer briefly through New Jersey en route from one point in
New York to his destination at another point in New York. The trac
tor-trailer was composed of a cab belonging to the driver's employer
(a motor carrier based in New York) and a chassis and a large cargo
container belonging to the defendant (an ocean carrier with its princi
pal place ofbusiness inNew Jersey). The container fell offthe chassis
while the truckwas being driven throughNew Jersey and injured the
plaintiff, a New Jersey domiciliary, who was driving his car on the
opposite side of a divided highway. The court found that the cause of
the accident was not the truck driver's negligence in New Jersey, but
rather his negligence at the terminal inNew York when he loaded the
container and failed to properly insert two pins that would lock the
container onto the chassis. Once the driver left the terminal with the
improperly-secured container, the court said, "his tractor-trailer was
an accident waiting to happen."73
Under a New York statute, which specifically addressed compos
ite vehicles like the tractor-trailer involved in this case, the owner of
the container would be liable for the negligence of the driver. Under
New Jersey law, the owner would not be liable in the absence of fault.
The court applied the New York statute, stressing the statute's con
duct-regulating purpose and noting that, although the statute was
not, strictly speaking, a "rule of the road," its main purpose was to
indirectly promote traffic safety by "discouraging] owners from lend
ing their vehicles to incompetent or irresponsible drivers."74 The
court said that this was particularly relevant in this case because
both the "lending" ofwhat became part of the vehicle (the chassis and
72. 942 A.2d 29 (N.J. Super. Ct. App. Div. 2008), cert, denied, 950 A.2d 907 (N.J.
May 16, 2008).
73. Dolan, 942 A.2d at 38.
74. Id. at 34 (internal quotation marks omitted).

container) and "the primary act of negligence"75 occurred in New

York. Thus, "[a] 11of the activitywithin New York strongly implicated
New York's legislative policy to encourage vehicle owners to do more
to ensure safety on the road."76 The fact that the injury occurred in
New Jersey (rather than New York) was "fortuitous," said the court,
when the driver "detoured through New Jersey to avoid New York
City traffic."77
The court also acknowledged that theNew York statute also had
a loss-distributing purpose by allowing injured persons to recover
from financially responsible insured persons. The court noted that
this purpose ismore relevant when the victim is a New York domicili
ary, but reasoned that in this case the New Jersey victim, who was
employed inNew York and commuted toNew York on a daily basis,
was "well within the universe of persons whose safety the New York
law was aimed at protecting" and that "his devastating injuries de
prived [his New York employer] of a long-term employee."78
As for New Jersey's interests, the court found that New Jersey's
policy of "equating liabilitywith fault" did "not outweigh New York's
policy to encourage traffic safety and ensure an adequate recovery for
accident victims."79 Even the fact that the defendant had its principal
offices in New Jersey did not trigger New Jersey's defendant-protect
ing interest because the defendant, having acted in New York on a
"
daily basis and at all critical times, had not justifiably relied on the
shelter afforded 80
by New Jersey law."
The result in Dolan is consistent with the results reached in the
vast majority of conflicts cases involving cross-border torts (other
than products liability81)and decided by state and federal courts in
states that have
abandoned the lex loci delicti rule. In a recent com
prehensive study,82 this author has examined all such cases?a total
of 105?decided over the last four decades. Depending on the content
of the laws of the state of conduct and the state of injury, these cases
fall into two main patterns:
(1) cases in which the state of conduct has a pro-defendant law,

while the state of injuryhas a pro-plaintifflaw (Pattern 1); and
(2) cases like Dolan in which the state of conduct has a pro
plaintiff law, while the state of injury has a pro-defendant law
(Pattern 2).
75. Id. at 38.

76. Id.
77. Id.
78. Id.
79. Id.
80. Zd. (internal quotation marks omitted).
81.For product liability conflicts, see Symeonides, supra note 59, at 265-364.
82.See Symeon C. Symeonides, Choice of Law in Cross-Border Torts (forthcom
ing) available at SSRN:http://ssrn.com/abstract=1328191.

These patterns can be further subdivided, depending on the par

ties' domiciles and whether the conflict involves conduct-regulation
or loss-distribution issues, but these subdivisions rarely affect the re
sult (although they do affect the analysis). The following table
summarizes the results of the 105 cases.
Table 3. Law Applied in Cross-Border Conflicts
Pattern 1
Pro-P Pro-D Forum
Injury Conduct law law law Non-Forum
Conduct-Regulation (30) 27_4_ 27_4

25_6
Loss-Distribution
(17)_16_1_ 16_1
12_5
Total(47)_ 43 1 5 | | 43 [ 5 | | 37 | 11
_ Pattern 2 __
Conduct-Regulation 34
(41)_7 34_7
24_17
Loss-Distribution 13
Total 1 10 1 47 j | 47 | 10 | | 31 | 26
(16)_3 13_3
7_9
(57)
Grand-Total
(102) I 53 I 52 I I 90 1 15 1 1 68 1 37
"Percentages 1 50% | 50% | | 86% | 14% | | 65% | 35%
As the table indicates, courts that have joined the revolution

have reached fairly uniform results in resolving cross-border tort con
flicts (despite using different approaches and invoking varied
rationales). Specifically:
(1) the cases are almost evenly split (53 to 52) between applying
the law of the place of conduct and the law of the place of injury;
(2) the vast majority of the cases (90 out of 105 cases, or 86%)
have applied whichever of the two laws favored theplaintiff; and
(3) almost two-thirds of the cases (68 out of 105 cases, or 65%)
have applied the law of the forum state.

Chart 3. Conduct or Injury? Chart 4. Pro-P and Pro-D Law
Chart 5. Forum and Non-Forum Law
D. Other Torts
Cases involving state tort immunity,83 professional malprac

tice,84 and deceptive trade practices86 are among the other cases
decided by appellate courts in 2008 and worth noting.
83. See Athay v. Stacey, 196 P.3d 325 (Idaho 2008), reh'g denied, (Oct. 15, 2008).
84. See Thabault v. Chait, 541 F.3d 512 (3d Cir. 2008) (decided under New Jersey
conflicts law; auditor malpractice).
85. See GJP, Inc. v. Ghosh, 251 S.W.3d 854 (Tex. App. Austin 2008), reh'g denied
(Apr. 17, 2008).

IV. Products Liability
A. Foreign Plaintiffs and Forum Non Conveniens
With the 2008 decision inKedy v.A.W. Chesterton Co.,86 Rhode

Island became
the forty-seventh state of the United States to for
mally adopt the doctrine of forum non conveniens (FNC). Twenty-two
states now have statutes or civil procedure rules codifying the doc
trine, while twenty-five states have supreme court precedents to the
same effect.87InKedy, the Rhode Island Supreme adopted the FNC
doctrine (or declared that it has always been part of Rhode Island
law) and, rather than remanding the case, applied the doctrine to the
case at hand. It did not matter that the trial court, having dismissed
the FNC motion as unavailable under Rhode Island law, had not de
veloped a record regarding the private and public interest factors
upon which the FNC doctrine depends.
Kedy involved twenty-nineproduct liability actions filed by Ca
nadian residents
against several American asbestos manufacturers,
alleging injuries caused by workplace exposure in Canada to products
containing asbestos. In dismissing the action on FNC grounds, the
court noted, inter alia, that "no one other than the attorneys involved
actually is located in Rhode Island," that "literally all the witnesses
and parties would have to travel to Rhode Island for the trial," and
that "the likelihood that Canadian or other foreign law would apply
in these cases would place additional, although not insurmountable,
burdens" upon Rhode Island courts.88
In Varo v. Owens-Illinois, Inc. ,89 another product liability action
for asbestos exposure filed by fifteen Spanish domiciliaries against
American asbestos manufacturers in New Jersey, the plaintiffs suc
ceeded in defeating a FNC motion. In this case, the asbestos was
manufactured and sold in New Jersey, and plaintiffs' exposure to as
bestos occurred aboard U.S. warships?which are by legal fiction part
of U.S. territory, even when, as in this case, they were docked at a
naval base in Spain. The court observed that, while there was little
reason to assume that New Jersey was a convenient forum for the
plaintiffs, there was "more reason to doubt the convenience to defen
dant of defendant's preferred forum more than 3000 miles away from
its own home."90
86. 946 A.2d 1171 (R.I. 2008).

87. According to theKedy court, the three states that have not adopted the doc
trine (or have not spoken on it) are Montana, Idaho, and Oregon. See Kedy, 946 A.2d
at 1180 n.9. For a 2008 Montana case, see Cook v. Soo Line R. Co., 198 P.3d 310
(Mont. 2008) (discussed infra at VIII). For a recent U.S. Supreme Court decision on
FNC, see infra IX.D.
88. Id. at 1188.
89. 948 A.2d 673 (N.J. Super. Ct. App. Div. 2008).
90. Id. at 683.

The court noted that "the potential application of Spanish law

d[id] not weigh in favor of dismissing plaintiffs' complaints in New
Jersey,"91 and that "defendant's tortious conduct in New Jersey?the
manufacture, and sale of asbestos-containing . . .
marketing products
provide [d] a sufficient factual nexus with the State to warrant reten
tion of jurisdiction." The court concluded that New Jersey had "an
undeniable, strong interest in assuring the safety of products manu
factured, distributed, marketed and sold [in New Jersey], and
correspondingly in providing a forum for redress of allegedly wrong
ful conduct of its corporate residents."92
In In re Pirelli Tire, L.L.C.,93 a products liability action brought
by Mexican domiciliaries against a U.S. car tire manufacturer, the
Texas Supreme Court reversed a lower court's dismissal of defen
dant's FNC motion. The tire was manufactured at an Iowa plant
owned by defendant, a Georgia-based corporation, and was installed
on a used pickup truck that was sold to a Mexican domiciliary in
Texas and then taken to Mexico. The tire exploded while the truck
was being driven on a Mexican road, causing the truck to roll, killing
the plaintiffs decedent, a Mexican domiciliary.
The court found that "[t]he happenstance that the truck was in
Texas for eleven days before it was sold and imported to Mexico is
simply insufficient to provide Texas with any interest in this case."94
In contrast, the court thought that "Mexico's interest in protecting its
citizens and seeing that they are compensated for their injuries [was]
paramount"95 even ifMexican law, by limiting the amount of com
pensatory damages, protected defendants more than plaintiffs. "The
safety of Mexican highways and products within the country's bor
ders are also Mexican interests,"96 said the court, even though, by
refusing to adopt strict liability and requiring proof of negligence,
Mexican law made it difficult for plaintiffs to succeed in suing prod
uct manufacturers. The court also commented that the Mexican
plaintiffs "cannot logically claim that it is more convenient for them
to litigate in Texas than in Mexico,"97 but the court did not comment
on whether it was more convenient for the U.S. defendant to litigate
in Mexico.
One preliminary question in Pirelli was whether Mexico pro
vided an alternative forum. The defendant had stipulated that it
would submit to personal jurisdiction inMexico and would not assert
any statute-of-limitations defense based on the time that had elapsed
91. Id. at 684.

92. Id. at 685.
93. 247 S.W.3d 670 (Tex. 2007), reh'g denied (Mar. 28, 2008).
94. Id. at 679.
95. Id.
96. Id.
97. Id.

since the Texas lawsuit was filed. The plaintiffs argued that such an
anticipatory waiver of the statute of limitations was not enforceable
in Mexico and that a Mexican court might not assert jurisdiction
under such circumstances. The court dismissed the argument.
In In re General Electric Co. 98 a product liability action filed in
Texas by a Maine domiciliary who was exposed to asbestos inMaine,
the plaintiff argued that Maine was not an alternative forum in
which his claims could actually be "tried."99 If he sued in Maine, he
argued, his case would be removed to federal court (because none of
the defendants had their principal place of business inMaine) and
would be transferred from there to the federal Multi-District Litiga
tion (MDL) Court No. 875. At the time, therewere 32,892 asbestos
cases pending before the MDL court, andthese cases usually lan
guish for years and "virtually nothing happens to them at all."100 The
plaintiff stated that he was seriously illwith asbestosis and that ifhe
had to litigate inMaine, he would not survive long enough to have his
case tried. Indeed, the plaintiff died before the case was heard by the
Texas Supreme Court, but this did not prevent the court from dis
missing his arguments as "speculative."101
In Hernandez v. Ford Motor Co.,102 a products liability action
similar toPirelli but brought inMichigan, theMexican plaintiffsalso
argued that Mexico did not provide an alternative forum because
Mexican courts would not assume jurisdiction. The plaintiffs noted
that, in two cases involving the same defendant that were dismissed
on FNC grounds in theUnited States and then re-filed inMexico, the
Mexican courts held that they did not have jurisdiction despite know
ing that, as in Pirelli and Hernandez, the defendant was willing to
consent to the Mexican courts'jurisdiction. After noting that "a suspi
cious haze"103 surrounded the plaintiffs in those cases, the Michigan
court dismissed the argument. The court pointed out that the plain
tiffs' attorneys (who also appeared as plaintiffs' Mexican law experts
98. 271 S.W.3d 681 (Tex. 2008).

99. Id. at 687.
100. Id. at 684.
101. Id. at 688. In Satterfield v. Crown Cork & Seal Co., Inc., 268 S.W.3d 190 (Tex.
App. Austin 2008), reh'g overruled (Oct. 07, 2008), another asbestos case filed by a
who also died of asbestosis before his case was heard, the issue was the con
plaintiff
stitutionality of a Texas statute that limited liability for asbestos claims against
successor to the value of the predecessor corporation at the time of the
corporations
merger. The statute mandated its application to: (a) multistate cases "to the fullest
extent permissible under theUnited States Constitution," id. at 199, even if the case
would otherwise be governed by foreign law; and (b) even topending cases. In a 2:1
decision, the court found that, without a grace period, the statute violated the Texas
Constitution's against retroactive laws. The dissent argued that the stat
prohibition
ute was not unconstitutional because itmerely altered Texas' choice-of-law rules, and
that the plaintiff did not have a vested right in a remedy provided by those rules.
102._N.W.2d_, 2008 WL 4057538 (Mich. Ct. App. Sept. 2, 2008), appeal de
nied, 759 N.W.2d 396 (Mich. 2009).
103. Id. at *4.

in the U.S. trials under a contingency fee arrangement) had not noti
fiedFord of theMexican filingsand had urged theMexican courts to
find lack of jurisdiction. The Hernandez court found that Mexico was
an adequate alternative forum and dismissed the case on FNC
grounds. The court reasoned that although Michigan had an "interest
in Ford's business because it affects this state's economy," Mexico's
interest in adjudicating the case was greater because "a Mexican citi
zen was killed in an accident on Mexican soil, in a vehicle purchased
in Mexico."104 The court also stated that, despite Michigan's notori
ous lex fori approach, it was "more likely that Mexican law would
apply"105 in this case, even though it involved a car designed inMich
a
igan by Michigan-based auto manufacturer.106
In the meantime, several Latin American countries have enacted
"door-closing" or "blocking" statutes that deprive their courts of juris
diction over cases that have been previously filed in the United
States.107 Some statutes explicitly refer to cases dismissed by U.S.
courts on FNC
grounds. One example is article 1421-J of the Pana
manian Civil Code, which provides that "for reasons of constitutional
order," Panamanian courts do not have jurisdiction "if the claim or
action attempted to be brought in [Panama] has been previously re
jected or denied by a foreign judge who applies the forum non
conveniens [doctrine]."108 In Paulownia Plantations de Panama
Corp. v. Rajamannan109 a breach of contract case, the Minnesota
Court of Appeals held that this statute meant that Panama did not
provide an alternative forum, thus rendering the FNC doctrine inap
plicable. In contrast, in Scotts Co. u. Hacienda Loma Linda,110 the
Florida Court of Appeals dismissed on FNC grounds despite the Pan
ama statute.
104. Id. at *10.

105. Id.
106. For a similar case denying Ford's motion to apply Mexican law, see Cervantes
v. Bridgestone/Firestone North American Tire Co., LLC, 07C-06-249 JRJ, 2008 WL
3522373 (Del. Super. Ct. Aug. 14, 2008) appeal refused, 959 A.2d 27 (Del. Super. Ct.
Oct. 10, 2008).
107. See Gary B. Born & Peter B Rutledge, International Civil Litigation in
United States Courts 424 (4th ed. 2007); Russell J. Weinteaub, International
Litigation and Arbitration (5th ed. 2006);Winston Anderson, Forum Non Con
veniens Checkmated?: The Emergence of Retaliatory Legislation, 10 J. Transnat'l L.
& Pol'y 183 (2001); Walter W. Heiser, Forum non Conveniens and Retaliatory Legis
lation: The Impact on theAvailable Alternative Forum Inquiry and on theDesirability
of Forum non Conveniens as a Defense Tactic, 56 U. Kan. L. Rev. 609 (2008); Rajeev
Muttreja, How to Fix the Inconsistent Application of Forum non Conveniens to Latin
American Jurisdiction?And Why Consistency May Not Be Enough, 83 N.Y.U. L. Rev.
1607 (2008).
108. Codigo Civil art. 1421-J (Pan.). This provision was repealed in early 2008.
109._ N.W.2d _, 2008 WL 5136819 (Minn. Ct. App. Dec. 9, 2008), review
granted (Feb. 17, 2009).
110._So.2d_, 2008 WL 5352221 (Fla.App. 3 Dist., Dec. 24, 2008).

Scotts was a product liability action filed by Hacienda, a Pan

ama-based corporation producing orchids in Panama, whose orchids
were destroyed after being exposed to defendant's product. The defen
dant was an Ohio-based corporation that tested the product at its
research facility in Florida and sold it to plaintiff at a Florida trade
show. Plaintiff sold ninety-one percent of its orchids in Florida. De
spite these Florida contacts, the Florida court granted defendant's
motion for FNC dismissal, concluding that Panama provided an ade
quate alternative forum.111 The plaintiff refiled in Panama, but the
Panamanian courts dismissed the action, invoking the above-quoted
article 1421-J of the Panamanian Civil Code (and apparently heeding
plaintiffs not-so-subtly expressed wishes). Thus the case came back
to the Florida court, which had retained jurisdiction.
The Florida court was at best unsympathetic. "[0]ur courts can
not be compelled by other countries' courts and lawmakers to resolve
cases that should be determined in those countries,"112 said the court,
and concluded as follows:
[A] plaintiff in a lawsuit dismissed here forforum non con

veniens
may not render an alternative foreign forum
"unavailable" and thereby obtain reinstatement here by (a)
itself inducing the foreign court to dismiss the foreign action
or (b) relying on foreign laws or decisions plainly calculated
to preclude dismissal in Florida .... [I] f our courts deter
mine that a foreign forum is available and adequate, it is the
obligation of the plaintiff to assent to jurisdiction there and
to support that court's exercise of jurisdiction . . . [P]laintiff
may not assume that a foreign country's . . . laws
blocking
will be recognized here. If the foreign country chooses to turn
away its own citizen's lawsuit for damages suffered in that
very country, and if the other [FNC] factors warrant dismis
sal here, it is difficult to understand why Florida's courts
should devote resources to the matter.113
B. Inverse Conflicts
An"inverse conflict" is a case in which the application of each

state's law favors a party affiliated with the other state.114 Under
Currie's interest analysis, an inverse conflict is a "no-interest" (or
"unprovided-for") case, presumably because neither state has an in
terest in applying the law of the other state. Currie thought that
111. Scotts Co. v. Hacienda Loma Linda, 942 So.2d 900 (Fla.App. 2006).
112. Scotts,_So.2d_, 2008 WL 5352221 at *__.
113. Id. at _.
114. See Symeonides , supra note 59 at 272-73.

these cases should be decided under the law of the forum.115 Of the
four appellate cases that were decided in 2008 and involved the in
verse-conflict pattern, three cases applied the defendant-protecting
law of the plaintiff-affiliated non-forum state.
The only exception was a New Jersey case, Smith v. Alza
Corp.,116 which applied New Jersey's pro-plaintiff law to a product
liability action brought by an Alabama plaintiff against a New
Jersey-based packager of the diet drug Acutrim. The defendant had
packaged and labeled the drug in New Jersey and shipped it from
there to other states. The plaintiff, a pilot, bought the drug during a
lay-over in Pennsylvania and used it in his home state of Alabama,
where he suffereda stroke allegedly caused by the drug. The laws of
the two states conflictedon three issues: (1) statutes of limitation, (2)
strict liability, and (3) punitive damages and attorney fees. New
Jersey law favored the plaintiff on all three issues.
On the first issue, the plaintiffs action was timely under New
Jersey law, but not Alabama law, because New Jersey (unlike Ala
bama) followed the discovery rule. The court found that Alabama's
interest was "in eliminating stale claims and protecting against open
ended liability of its domestic manufacturers," and that this interest
would "neither [be] fostered by applying that state's law, nor frus
trated by the failure to apply it to non-resident entities such as
[defendant], incorporated and operating in a foreign jurisdiction."117
In contrast, New Jersey had "a substantial and distinctive govern
mental interest based on a strong policy of deterrence that seeks to
discourage domestic entities from the manufacture and distribution
within this State of unsafe products through the allowance of a prod
ucts liability action."118 The court concluded that,
given defendant's material connection to New Jersey by vir

tue of the fact that the allegedly defective product was
packaged and labeled here and then shipped fromthis State,
New Jersey's substantial governmental interest in deterring
the manufacture and distribution within its borders of un
safe products amply justifies application of its discovery
rule.119
The court reached the same conclusion on the issue of strict lia
bility, which was part of New Jersey law but not Alabama law.
Because the defendant had no contacts with Alabama and the injuri
ous conduct occurred outside Alabama, the court found that Alabama
115. See Brainerd Currie, Selected Essays on the Conflict of Laws 152-56
(1963).
116. 948 A.2d 686 (N.J. Super. Ct. App. Div. 2008).
117. Id. at 696.
118. Id. at 696-97.
119. Id. at 698.

had "no discernable interest in extending its [pro-defendant] products

liability law to [this] defendant," and thereby would interpose "a hin
drance to its resident obtaining full compensation for his injuries."120
In contrast, the court concluded, New Jersey had "a strong interest in
applying its no-fault strict liability law to [defendant] to encourage
the manufacture and distribution of safe products for the public and,
conversely, to deter the manufacture and distribution of unsafe prod
ucts within the State."121
Finally, the court also found that New Jersey had a stronger in
terest in applying its Consumer Fraud Act?under which treble
damages and attorney's fees were mandatory?than Alabama had in
applying its Deceptive Trade Practices Act, under which punitive
damages were discretionary. Because the plaintiff bought the product
in Pennsylvania, he did not qualify as a consumer under the Alabama
Act and Alabama did not have a direct relationship with the defen
dant. On the other hand, New Jersey was "the site of the alleged
deceptive practice" and its "substantial interest in deterrence . . . out
weighted] Alabama's interest, if any," in applying its Act.122
In contrast to Smith, three other appellate cases applied the pro
defendant law of the plaintiff-affiliated state.123 In one of these cases,
Devore v. Pfizer Inc.,124 the New York court applied the law ofMichi
gan, which, unlike New York, had a statute shielding drug
manufacturers from liability for injuries caused by FDA-approved
drugs. Michigan was the plaintiffs home state, as well as the place
where he purchased and used the injury-causing drug, while New
York was the place of the drug's manufacture and the manufacturer's
principal place of business.
The court based its decision on three assumptions: (1) that the
Michigan statute was conduct-regulating rather than loss-distribut
ing; (2) that in conduct-regulation conflicts the applicable law is the
law of the "place of the wrong"; and (3) that in cross-border torts the
place of the wrong is the place of injury, and not the place of conduct.
The first assumption was simply wrong, while the third assumption
was overly simplistic. Be that as itmay, the court thought that Michi
gan had "far greater significant contacts" because, "[n]ot only do
plaintiffs live and work there, but in addition, it is the jurisdiction
where the alleged injuries occurred."125 The court concluded that
120. Id. at 700.

121. Id.
122. Id. at 700.
123. Aside from the cases discussed in the text, see Taylor v. Mooney Aircraft
Corp., 265 Fed. Appx. 87 (3d Cir. Feb. 25, 2008) (decided under Pennsylvania conflicts
law; applying Georgia's statute of repose to bar an action brought by the estates of the
Georgia victims of a Pennsylvania crash of an airplane manufactured in Texas; Penn
sylvania law did not bar the action).
124. 867 N.Y.S.2d 425 (N.Y. App. Div. 1st Dept. Nov. 20, 2008).
125. Id. at 428.

theMichigan Legislature made a policy judgment intending

to shield drug manufacturers from liability, and its "inter
ests in protecting the reasonable expectations of the parties
who relied on it to govern their primary conduct and in the
admonitory effect that applying its law will have on similar
conduct in the future assume critical importance and out
weigh any interests of [New York State] ."126
In Gregory v. Beazer East,127 an Illinois court applied Indiana's

statute of repose, barring a product liability action brought by the
estate of an Indiana domiciliary who was exposed to asbestos in Indi
ana and Illinois. Illinois law did not bar the action. The court listed
several reasons for which Illinois courts had previously applied the
law of the victim's domicile: (1) "because the state of domicile is usu
ally the state where the injury occurred"; (2) "because a state
normally formulates its tort and compensation policies with its own
particular domiciliaries in mind"; (3) "because it is the state of domi
cile that most clearly feels the social and economic impact of an
injured party's tort recovery"; or (4) "because, when dealing with de
cedents, the state of domicile is the one concerned with the
administration of estates, including the adequacy of compensation to
the beneficiaries."128Indeed, all of these are good reasons to apply the
law of the victim's home state, but only when that law protects the
victim. On the other hand, when (as in Gregory) that law protects the
tortfeasor, a court must come up with other reasons for applying that
law.
C. Direct Conflicts
Direct conflicts are those in which each state's law favors a party
affiliated with that state. Under Currie's interest analysis, these
cases present the true conflict paradigm because each state has an
interest in applying its law. Currie advocated the application of the
law of the forum to these cases.129 Of the three appellate cases de
cided in 2008 involving this pattern, one case applied the pro
defendant law of the defendant-affiliated forum state,130 one case ap
plied the pro-defendant law of the defendant-affiliated non-forum
126. Id. (quoting Schultz v.Boy Scouts ofAm., 65 N.Y.2d 189, 198, 480 N.E.2d 679
(1985)).
127. 892 N.E.2d 563 (111.Ct. App. 1st Dist. 2008).
128. Id. at 574.
129. See Currie, supra note 115, at 182, 278-79, 357 (1963).
130. See Blazevska v. Raytheon Aircraft Co., 522 F.3d 948 (9thCir. 2008) (applying
federal statute of repose to bar a product liability action a U.S. air
brought against
plane manufacturer by the families of foreign victims killed by airplane crash in
Bosnia).

state,131 and one case, Burlington Northern and Santa Fe Ry. Co. v.
ABC-NACO,132 applied the pro-plaintifflaw of the plaintiff-affiliated
non-forum state.
Burlington Northern arose out of a train derailment in Arizona,

which was caused by a defective transom designed by an Illinois
based defendant in Illinois. The plaintiff, who owned the train that
ran through several states, sued the designer of the transom for the
multimillion damage to the train and its cargo. Under Arizona law,
but not under Illinois law, the designer would be held strictly liable.
Following the presumption of section 147 of the Restatement (Sec
ond)?which calls for the application of the law of the state of
injury?the Illinois courtheld thatArizona law should govern despite
acknowledging that Arizona was the "random site" of the derail
ment.133 The court reasoned that Arizona had an "interest in
applying its product liability laws to an accident that took place
within its borders" and that Illinois' interest was "not greater than
that ofArizona and ... not sufficient to the presumption that
displace
Arizona law should apply."134
The court also applied Arizona law to the issue of the defendant's
claim for contribution from two joint tortfeasors who had settled with
the plaintiff. Under Illinois law, but not Arizona law, the defendant
had a set-offright forthe $5.2 million the plaintiffrecovered fromthe
other tortfeasors. The 173 of the Restate
court believed that section
ment (Second) required contribution between joint tortfeasors to be
governed by the law of the state of conduct and injury. In fact, section
173 simply refers the issue to the law of the state that has themost
significant relationship with regard to the particular issue. A com
ment under section 173 states that past cases have applied the law of
the state of conduct and injury but questions whether those cases
"will invariably be followed in the future in view of the growing reali
zation that all issues in tort need not be governed by the same
law."135 The court acknowledged that, in this case, the conduct "took
place in various states, including Illinois,"136 but concluded that Illi
nois' interest was "not greater than that of Arizona, as the site of the
derailment."137
131. See National Union Fire Ins. Co. of Pittsburgh v. Dassault Falcon Jet Corp.,
263 Fed.Appx. 604, 2008 WL 122150 (9th Cir. Jan. 11, 2008) (applying the pro-defen
dant law of the defendant's home state, rather than the pro-plaintiff law of the state
of injury; the plaintiffs home state also favored the defendant).
132._N.E.2d _, 2008 WL 5205021 (Ill.App. 1 Dist. Dec. 11, 2008).
133. Id. at *5.
134. Id.
135. Restatement (Second) ofConflict of Laws ? 173, cmt. (a).
136. Burlington Northern, 2008 WL 5205021 at *6.
137. Id.

V. Contracts
A. Contracts with Choice-of-Law Clauses
In McKee v. AT & T Corp. 138 the Supreme Court ofWashington

held that a New York choice-of-law clause was unenforceable and
that, under Washington law, an arbitration clause contained in a
telephone service agreement was substantively unconscionable (and
thus unenforceable).139 The agreement was between AT & T, a New
York-based telephone company, and one of its customers, a domicili
ary of the State ofWashington. The court's job was easy because the
agreement was completely one-sided. Aside from the choice-of-law
and arbitration clauses, which covered "all. . .
disputes arising out of
or related to" the agreement, "whether based in contract, tort, stat
ute, fraud, [or]misrepresentation,"140 the agreement: (1) required all
arbitrations to be kept confidential; (2) prohibited class actions before
courts or arbitrators; (3) excluded several types of damages and pro
138. 191 P.3d 845 (Wash. 2008). For a decision of the same court involving a
choice-of-forum clause, see Oltman v. Holland America Line USA, 178 P.3d 981
(Wash. 2008), cert denied, Oltman v. Holland America Line USA, Inc., 129 S. Ct. 24
(U.S. 2008) (holding that a choice-of-forum clause in a cruise ticket was not binding on
the injured passenger's spouse who sued for loss of consortium).
139. In addition to the cases discussed in the text, the following appellate cases
held the choice-of-law clause unenforceable: Brack v. Omni Loan Co., Ltd., 80 Cal.
Rptr. 3d 275 (Cal. Ct. App. 4th Dist. 2008), review denied (Oct. 16, 2008) (holding
unenforceable a Nevada choice-of-law clause in contract between Nevada lender and
California borrower because Nevada law contravened a fundamental policy embodied
in California's Finance Lenders Law and California had a materially greater interest
than Nevada in applying its law); Brown & Brown, Inc. v. Mudron, 887 N.E.2d 437
(111.App. Ct. 3d Dist. 2008) (holding unenforceable a Florida choice-of-law clause and
a non-compete covenant in an employment contract between Florida and an
employer
Illinois employee and restricting competition in Illinois; Florida law contravened a
fundamental policy of Illinois, which had a materially greater interest than Florida in
applying its law); Price & Price Mech. of N.C., Inc. v. Miken Corp., 661 S.E.2d 775
(N.C. Ct. App. 2008) (holding unenforceable Florida choice-of-forum and choice-of-law
clauses in a contract for work on North Carolina real property because a North Caro
lina statute prohibited such clauses); Bell v. Rimkus Inc. of
Consulting Group,
Louisiana, 983 So.2d 927 (La. Ct. App. 5th Cir. 2008), writ denied, 983 So.2d 1276 (La.
2008) (holding unenforceable Texas choice-of-forum and choice-of-law clauses and a
non-compete covenant in an employment contract between Texas employer and Loui
siana employees and restricting competition in Louisiana; Texas law contravened a
strong Louisiana public policy). For cases finding the choice-of-law clause enforceable,
see Tenas v. Progressive Preferred Ins. Co., 197 P.3d 990 (Mont. 2008); Polzin v. Ap
pleway Equipment Leasing, Inc., 191 P.3d 476 (Mont. 2008); Modroo v. Nationwide
Mut. Fire Ins. Co. 191 P.3d 389 (Mont. 2008); Trans-Tec Asia v. M/V Harmony
Container, 518 F.3d 1120, (9th Cir. 2008), cert denied, Splendid Shipping Sendirian
Bernard v. Trans-Tec Asia, 129 S. Ct. 628 (U.S. 2008); Ins. Co. of America v.
Royal
Orient Overseas Container Line Ltd., 525 F.3d 409 (6th Cir. 2008), cert denied, Ori
ent Overseas Container Line Ltd. v. Royal Ins. Co. of America, 129 S. Ct. 299 (U.S.
2008); Mosteller Mansion, LLC v. Mactec Engineering and Consulting of Georgia,
Inc.,No. COA07-664, 2008 WL 2096769 (N.C. Ct. App. May 20, 2008), review denied,
666 S.E.2d 124 (N.C. 2008); Map Supply, Inc. v. Integrated Inventory Solutions, LLC,
No. COA07-733, 2008 WL 2096791 (N.C. Ct. App. May 20, 2008); Martin v. Stassen
Ins. Agency, Inc., No. 2008AP942, 2008 WL 5220283 (Wis. Ct. App. Dec. 16, 2008).
140. McKee, 191 P.3d at 865.

hibited punitive damages and attorney fees for the consumer (though
not forthe company); and (4) required all claims to be filedwithin two
years.
The court found

that, in the absence of the choice-of-law clause,
Washington law would have been applicable, and that the application
of New York law would be contrary to a fundamental policy ofWash
ington. This was because New York allowed waivers of class actions,
whereas Washington had a declared ....
"strong public policy in sup
port of the use of class action claims to pursue actions for small-dollar
damage claims under the Washington State Consumer Protection
Act."141 Indeed, in a previous case, the same court had held that "a
forum selection clause that seriously impairs the plaintiffs ability to
go forward on a claim of small value by eliminating class suits in cir
cumstances where there is no feasible alternative for seeking relief
violates public policy and is unenforceable."142 The McKee court also
found that Washington's interest in protecting large classes of its
consumers was materially greater than New York's interest in pro
tecting AT & T. Applying Washington law, the court found the
arbitration clause substantively unconscionable and thus
unenforceable.143
The New Mexico case Fiser v. Dell Computer Corporation144 in
volved a contract between a Texas computer manufacturer and a
New Mexico consumer who bought a computer online. The contract
contained a Texas choice-of-law clause and an arbitration clause that
also prohibited class arbitration or class actions. The court found that
the application of Texas law, which allowed class action bans, was
contrary to New Mexico's "fundamental public policy [which] requires
that consumers with small claims have a mechanism for dispute reso
lution via the class action."145 The court concluded that, "[b]ecause it
violates public policy by depriving small claims consumers of a mean
ingful remedy and exculpating Defendant from potential wrongdoing,
the class action ban meets the test for substantive
unconscionability."146
141. Id. at 852.

142. Dix v. ICT Group, Inc., 160Wash.2d 826, 837, 161 P.3d 1016 (Wash. 2007).
143. In reDetwiler, No. 08-72823, 2008 WL 5213704 (9th Cir. Dec. 12, 2008) (de
cided under Washington conflicts law) involved similar facts and issues, except that
the choice-of-law clause in a mobile telephone contract between a Florida consumer
and a Washington telephone company chose the law of the consumer's home state,
Florida, which did not favor the consumer. The consumer argued that an arbitration
clause and a class waiver clause contained in the contract were unconscionable, even
though the clauses were enforceable under Florida law. The court reasoned that, be
cause Florida law would have been applicable even in the absence of a choice-of-law
clause, therewas no basis upon which to disregard the contractual choice of that law
or the result dictated by it.
144. 188 P.3d 1215 (N.M. 2008).
145. Id. at 1220.
146. Id. at 1221.

In Hoffman v. Citibank (South Dakota), N.A.,147 a service agree

ment between a South Dakota credit card company and a California
cardholder contained a South Dakota choice-of-law clause and a
mandatory arbitration clause that prohibited class actions and class
arbitrations. The cardholder filed a class action in California, alleg
ing that the company violated several provisions of California's
consumer protection laws. The trial court held the choice-of-law and
arbitration clauses enforceable under South Dakota law and issued
an order compelling individual arbitration.
The Ninth Circuit reversed and remanded to the trial court with
instructions to determine whether, under the facts, the class waiver
was enforceable under California law. If the answer was negative
(and the Ninth Circuit suggested that itwould be), then the South
Dakota choice-of-law clause would also be unenforceable because the
application of South Dakota
law would contravene a fundamental
policy of California: favoring class actions as a means of deterring
violations of its consumer protection statutes. The court quoted from
California precedents, noting that "[t]he potential for millions of cus
tomers to be overcharged small amounts without an effective method
of redress cannot be ignored."148
B. Choice of an Invalidating Law
As seen in the surveys of previous years, sometimes a choice-of

law clause chooses a law that invalidates the contract, in whole or in
part. In commenting on such clauses, this author has argued that the
clause should be disregarded when it chooses a law that would invali
date the whole contract, but not when itwould invalidates only part
of the contract.149
In CS-Lakeview at Gwinnett, Inc. v. Simon Property Group,
Inc.,150 the Supreme Court of Georgia made the same distinction and
upheld a Delaware choice-of-law clause even though Delaware law
invalidated part of the contract.151 The contract was a complex settle
ment agreement between Georgia and Delaware parties dissolving a
joint venture and dividing its assets. One of the assets was a Georgia
immovable for which the agreement granted the Georgia party a
right of first refusal. Unfortunately for that party, the first-refusal
clause was invalid under Delaware's rule against perpetuities, al
though itwould be valid under Georgia law. In the ensuing litigation,
the Georgia party sought to "reform" the choice-of-law clause, argu
147. 546 F.3d 1078 (9th Cir. 2008) (decided under California conflicts law).
148. Id. at 1083 (internal quotation marks omitted).
149. See Symeonides, 1999 Survey at 162-65; Eugene Scoles, Peter Hay, Patrick
Borchers & Symeon C. Symeonides, Conflict of Laws 982-83 (4th ed. 2000).
150. 659 S.E,2d 359 (Ga. 2008), reconsideration denied (Apr. 11, 2008).
151. The court quoted from the publications cited at Eugene Scoles, Peter Hay,
Patrick Borchers & Symeon C. Symeonides, supra note 149.

ing that the clause was the result of a mutual mistake. Both the
lower courts refused to do so and the Supreme Court affirmed.
The court noted that the equitable power to relieve mistakes
must be "exercised with caution," and that the evidence regarding the
mistake must be "clear, unequivocal, and decisive . . . [in] show
[ing]
that the alleged mistake resulted in a contract which fails to express
accurately the intention of the parties."152 This was not the case here,
the court observed, because the chosen law invalidated only one
clause in the contract: "It is not possible to conclude that the parties
clearly and unequivocally intended the choice-of-law provision to fall
whenever it would invalidate any provision of the contract. To as
sume that the parties intended for the right of first refusal to be
effectiveinstead of their choice of law is not anymore justifiable than
the converse assumption."153 Moreover, the court noted, to reform the
contract and subject it to Georgia law could "have ... its own undesir
able implications for themultiple entities and properties involved in
the settlement agreement."154
C. Contracts without a Choice-of-Law Clause165
Sonat Exploration Co. v. Cudd Pressure Control, Inc.156 involved

a Master Service Agreement for oilfield services in Louisiana, Texas,
and New Mexico. The agreement provided that the law of Texas
would govern work in Texas and New Mexico, and that the general
maritime law of the United States would govern work in navigable
waters. The agreement was silent on what law would govern work on
Louisiana land. The dispute in Sonat arose out of an explosion at an
oil well in Louisiana and involved the validity of a clause in the
agreement that required each party to indemnify the other for claims
brought by their respective employees. Under Louisiana law, this
clause would be invalid if the indemnitee was negligent or strictly
liable. Under Texas law, the clause would be valid up to the amount
of insurance coverage.
The indemnitee argued that "the Restatement urges courts to
avoid applying a law that would invalidate the parties' contract, even
if theparties had specificallypicked it."151The court noted that Loui
siana law would invalidate the indemnity clause only if the
indemniteewas negligent or strictly liable, and that Texas lawwould
partially invalidate the clause by limiting the indemnity to the
amount of insurance coverage. Thus, the court concluded, "we can
avoid all invalidating rules only by avoiding both Texas and Louisi
152. Id. at 362 (internal quotations omitted).

153. Id.
154. Id.
155. For cases involving insurance contracts, see infra V.C.
156. 271 S.W.3d 228 (Tex. 2008).
157. Id. at 235 (emphasis in original).

ana law. No party suggests we go that far."158 The court held that
Louisiana law governed and affirmed the lower court opinion.
In Sawyer v. Market America, Inc.,159 an employment contract
between a North Carolina employer and an Oregon employee for
work outside North Carolina contained a North Carolina choice-of
law clause. The employee sued the employer for violations of North
Carolina's Wage and Hour Act. The court found that, despite the ab
sence of words to that effect, the Act was not intended to apply
extraterritorially to out-of-state employees working outside North
Carolina, and that the choice-of-law clause could not stretch the Act's
reach beyond North Carolina's borders: "We conclude that the choice
of law provision in the parties' contract, although it requires us to
apply North Carolina law, does not change the limits or requirements
of the North Carolina statutes thus applied."160
In Sullivan v. Oracle Corp.,161 the employment contract between
a California employer and its employees domiciled in Colorado and
Arizona did not contain a choice-of-law clause but called for work in
California. The employees sued the employer in California for viola
tion of the overtime provisions of the California Labor Code. The laws
of Colorado and Arizona provided less generous overtime than Cali
fornia. The court held that the California Labor Code applied. The
court found that, while Colorado and Arizona did not have an interest
in applying their less-generous laws at the expense of their domicil
iaries,162 California had "a strong interest in applying its Labor Code
to the work performed in California by non-Californians employed by
a California employer."163 The court reasoned that, "[i]f a California
employer may avoid the requirements of the state Labor Code by the
simple expedient of hiring nonresidents, California residents will be
substantially disadvantaged in the labor market by the cheaper labor
that will thereby be made available to California employers."164 How
ever, the court also held that the California Labor Code did not apply
to claims arising from work outside California.165
158. Id. at 236.

159. 661 S.E.2d 750 (N.C. Ct. App. 2008).
160. Id. at 753.
161. 547 F.3d 1177 (9th Cir. 2008) (decided under California conflicts law).
162. See id. at 1185 ("Colorado [and] Arizona . .. both have an interest in the appli
cation of California rather than Colorado or Arizona law, for California's Labor Code
is by any measure the most advantageous to the employee. We fail to see any interest
Colorado or Arizona have in ensuring that their residents are paid less when working
in California than California residents who perform the same work.").
163. Id. at 1185.
164. Id. at 1184.
165. See id. at 1186.

D. Insurance Contracts
1. Automobile Insurance
As in previous years, the most numerous among insurance con

flicts are those involving automobile insurance. The majority of these
cases involve the issue of uninsured or underinsured motorist (UM or
UIM) coverage in disputes between insurers and their insureds. The
typical scenario involves a person who purchases a policy in his or her
home state insuring a car registered and garaged in that state and
then is involved in an accident in another state caused by an unin
sured or underinsured motorist. A conflict results when the two
states either (a) have different limits or requirements for UM cover
age, or (b) take different positions on the validity of anti-stacking,
coverage exclusion, or setoff clauses contained in the policy.
Because in essence these are contractual disputes, courts usually
apply a contract (rather than tort) choice-of-law analysis. In the vast
majority of cases, this analysis leads to the application of the law of
the state inwhich the insurance policywas delivered, which typically
is also the insured's home state and the state in which the car was
registered and stationed. At least six appellate cases decided in 2008
applied the law of the state of the insurance contract to issues ofUM
coverage, and in all cases, that law favored the insurer.166 Five other
cases applied the same law to other issues of insurance coverage.167
166. See Tenas v. Progressive Preferred Ins. Co., 197 P.3d 990 (Mont. 2008) (apply
ing Nevada's pro-insurer law to case arising from Montana accident involving a
Nevada insured and a car insured in Nevada; insurance policy contained a Nevada
choice-of-law clause; reasoning that Montana did not have a materially greater inter
est, the court applied Nevada law, even though the policy contained anti-stacking
clauses that were unenforceable in Montana); Modroo v. Nationwide Mut. Fire Ins.
Co., 191 P.3d 389 (Mont. 2008) (applying Ohio's pro-insurer law to case arising from
Montana accident and involving an Ohio insured and a car insured in Ohio; insurance
policy contained an Ohio choice-of-law clause; reasoning that Montana did not have a
materially greater interest, the court applied Ohio law, even though anti-stacking
clauses contained in policy were unenforceable in Montana); Cherokee Ins. Co., Inc. v.
Sanches, 975 So.2d 287 (Ala. 2007) (applying Tennessee's pro-insurer law under Ala
bama's lex loci contractus rule to case arising from Alabama accident involving a
issued in Tennessee, even though car was regularly stationed in Alabama);
policy
Mid-Century Ins. Co. v. Perkins, 179 P.3d 633 (Or. 2008), opinion modified on recon
sideration, 195 P.3d 59 (Or. 2008) (applying Oregon's pro-insurer law to case arising
froma Washington accident involving a car insured inOregon); United Farm Family
Mut. Ins. Co. v. Frye, 887 N.E.2d 783 (Ill.App. 4 Dist. 2008), appeal denied, 887
N.E.2d 783 (111.2008) (applying Indiana's pro-insurer law to case arising from Illinois
accident involving Indiana car and Indiana insured); Fuhrmann v. Majors, 756
N.W.2d 48 (Table), No. 07-1531, 2008 WL 2746319 (Iowa Ct. App. July 16, 2008)
(applying South Dakota's pro-insurer law to case arising out of Iowa accident involv
ing South Dakota car and insured).
167. See Progressive Ins. Co. v. Williams, 884 N.E.2d 735 (111.App. Ct. 1st Dist.
2008); North Jersey Neurosurgical Associates, P.A. ex rel. Gil v. Clarendon Nat. Ins.
Co., 949 A.2d 851 (N.J. Super. App. Div. 2008); Moper Transp., Inc. v. Norbet Truck
ingCorp., 943 A.2d 873 (N.J. Super. App. Div. 2008), cert,denied, 957 A.2d 1171 (N.J.
2008); Progressive Direct Ins. Co. v. Gross, No. C-070547, 2008 WL 1913356 (Ohio Ct.
App. 1stDist. May 2, 2008); State Farm Mut. Auto. Ins. Co. v. ANC Rental Corp., No.

Only two appellate cases have applied the law of the state of the
accident.168 In one of these cases, the application of the law of the
accident state was based on an insurance policy clause that provided
that, "subject to the law of the state of the occurrence accident,"169
the insurer would not provide UM coverage above a specified amount.
The court interpreted this as a choice-of-law clause and applied the
law of the accident state,which provided a higher UM coverage than
the specified amount. In contrast, two other cases have construed
away similar clauses.170
2. Other Insurance Contracts
In about half of the reported appellate cases involving automo

bile insurance conflicts in 2008, litigation was initiated by the
insurer,in a forum of its choice, seeking a declaratory judgment re
garding coverage. The percentage of insurer-initiated litigation is
even higher in cases involving other insurance conflicts. Three New
Jersey cases illustrate the "unseemly race to the courthouse"171 be
tween insurers and their insureds.
The
first case, Sensient Colors Inc. v. Allstate Ins. Co.,172 was a
dispute between a New York insurer and its insured, the operator of
a New Jersey factory, regarding coverage for environmental contami
nation at the factory site. The insurer sued the insured in New York,
seeking a declaratory judgment that the insurer was not obligated to
provide coverage for the contamination. If (as likely) the New York
court would have applied New York law, the insurer would have pre
vailed because New York law prohibited coverage for environmental
contamination of the type involved in this case.
Less than two months later, the insured sued the insurer in New
Jersey, seeking a declaratory judgment that the insurer was obli
gated to provide coverage. If the New Jersey court were to apply New
Jersey law, the insured would have prevailed, because New Jersey
law provided coverage for environmental contamination of the type
involved in this case.
1 CA-CV 07-0226, 2008 WL 4149006 (Ariz.Ct. App. Div. 1Apr. 3, 2008), reviewdenied
(Sept. 23, 2008).
168. See Wamsley v. Nodak Mut. Ins. Co., 178 P.3d 102 (Mont. 2008) (applying
Montana's pro-insured law to case arising from Montana accident involving North
Dakota car and insured); Bauer v. Farmers Ins. Co., 270 S.W.3d 491 (Mo. Ct. App.
W.D. 2008) (applyingMissouri's pro-insured law to case arising from a Missouri acci
dent involving a Kansas car and insurer).
169. Bauer, 270 S.W.3d at 492.
170. See Modroo v. Nationwide Mut. Fire Ins. Co. and Mid-Century Ins. Co. v. Per
kins, supra note 166.
171. Chubb Custom Ins. Co. v. Prudential Ins. Co. ofAmerica, 948 A.2d 1285, at
1292 (N.J. 2008).
172. 939 A.2d 767 (N.J. 2008).

The question in Sensient was whether the New Jersey litigation

should proceed in light of the previously filedNew York lawsuit. The
New Jersey Supreme Court answered the question in the affirmative.
The court acknowledged the general rule of comity that a first-filed
action in another state over a later-filed action, but
takes precedence
noted that this rule is not an inflexible
one because it allows excep
tions when dictated by the "special equities"173 of the situation. The
court concluded that "special equities strongly support New Jersey
exercising jurisdiction over this case."174 The court pointed out that
(1) most of the witnesses regarding the fifty-year contamination were
inNew Jersey, and (2) the insurer did not act in good faithwhen it
first lulledthe insured into believing that coverage would be forth
coming and then "engaged in a first-strike maneuver"175 by filing the
New York lawsuit. The court also noted, however, that the "most im
portant special equity" for not deferring to the first-filed rule was
New Jersey's "strong public policy interest in the remediation of envi
ronmental contamination within its borders."176 The court
acknowledged that the choice of forum does not necessarily dictate
the choice of law. However, the court stated, "clearly a forum state is
more likely to give effect to its own laws when those laws embody a
strong public policy intended to protect the safety and welfare of its
people"177 and, although itwas not certain that New York would ap
ply its law, it was "certain that a New Jersey court will apply the
laws of this state."178
The second New case, Century Indem. Co. v.Mine
Jersey Safety
Appliances Co.,179 a dispute
involved
between a Pennsylvania in
surer and its Pennsylvania insured regarding coverage for products
manufactured by the insured. Pennsylvania law favored the insurer,
while New Jersey law favored the insured. Predictably, the insured
sued in New Jersey while the insurer sued in Pennsylvania. In con
trast to Sensient, the insured in Century sued first (in New Jersey).
For this reason, the first-filed comity rule was not applicable in the
New Jersey court. Nevertheless, the court chose to follow the "analyt
ical framework"180 of Sensient and to dismiss the first-filed New
Jersey lawsuit, pointing out, inter alia, (1) the insured's "unseemly
173. Id. at 773, 775.

174. Id. at 778.
175. Id.
176. Id. at 779. See also id. ("[T]he governmental interests of a New Jersey forum
. . . are of the regulatory process in New Jersey, protection of New Jersey
protection
policyholders, protection of the victims of pollution, and protection of theNew Jersey
environment .... Those interests are in this case.") (internal quotations
present
omitted).
177. Id.
178. Id. at 780.
179. 942 A.2d 95 (N.J. Super. App. Div. 2008).
180. Id. at 97.

haste"181 to sue in New Jersey, (2) the lack of any meaningful New
Jersey contacts with the parties and the dispute, and (3) the concomi
tant lack of New Jersey interest in applying its law.
In the third case, Chubb Custom Ins. Co. v. Prudential Ins. Co. of
America,182 the insurers sued first in New Jersey and the insured
sued in Delaware.183 The insured then sought dismissal of the New
Jersey lawsuit based on a "service of suit" (SOS) clause that provided
in part that "the [Insurer] hereon, at the request of the Insured, will
submit to the jurisdiction of any court of competent jurisdiction
within the United States ofAmerica and will comply with all require
ments necessary to give such Court jurisdiction."184 The insured
argued that this clause amounted to a forum-selection clause enti
tling the insured to an absolute and exclusive choice of forum under
all circumstances. The insurers argued that the clause became inap
plicable once the insurers sued first, as long as the suit was filed in
the United States.
The New Jersey Supreme Court found the clause to be "ambigu
ous."185 Indeed, considering that both parties were sophisticated
commercial entities and that the policy provided for coverage of up to
$50 million, one would expect that the parties would have spent a
little more time considering the various possibilities and drafting
clearer language. Be that as itmay, the court interpreted the clause
in favor of the insurers and held that the New Jersey suit should
proceed. The court examined the history of SOS clauses since the
1940s and noted that other states have "overwhelminglyrejected the
notion that an insured has the right to choose the forum in all in
stances and to avoid participation in a first-filed action by the
insurer."186 Agreeing that the SOS clause was "a consent to jurisdic
tion by the insurer and a prohibition against an insurer interfering
with a forum initially chosen by the insured," the court concluded
that the clause did "not inhibit the insurer from filing first," nor did it
allow the insured "to trump a first-filed action by the insurer."187 Ob
liquely acknowledging that this interpretation might be too
advantageous to the insurer, the court noted that "[f]orum non con
veniens, comity and notions of judicial economy remain viable
alternatives for any party who is hauled into what that party or the
court considers an objectionable forum."188
181. Id. at 106.

182. 948 A.2d 1285 (N.J. 2008).
183. Delaware law favored the insured by allowing insurance coverage for punitive
damages, while New Jersey law favored the insurers by denying coverage.
184. Chubb Custom 948 A.2d at 1288.
185. Id. at 1290.
186. Id. at 1292.
187. Id.
188. Id.

VI. Domestic Relations
A. Marriage
In Martinez v. County of Monroe189 New York's intermediate

court held that a Canadian same-sex marriage between two New
Yorkers was entitled to recognition in New York. This decision has
now become final because New York's highest court, the Court of Ap
peals, dismissed an appeal.
The intermediate court noted that New York courts have recog
nized out-of-state marriages that were valid in the state where they
were solemnized or entered into, unless (1) they involved "incest or
polygamy, both ofwhich fallwithin the prohibitions of'natural law,'"
or (2) theywere prohibited by a "'positive law' ofNew York"190 that
specifically addressed out-of-state marriages.191 The Canadian mar
riage inMartinez clearly did not fallwithin the firstcategory,but the
marriage also did not fall within the second category because?unlike
other states?New York had not enacted a Defense ofMarriage Act
(DOMA) or similar legislation "to prohibit the recognition of same-sex
marriages validly entered into outside ofNew York"192 In the 2006
case Hernandez v. Robles,193 the Court of Appeals held that New
York's statutory law limited marriage to opposite-sex couples and
that the limitationwas consistent with the New York Constitution.
The Martinez court reasoned that Hernandez did not reflect a public
policy against out-of-state same-sex marriages because Hernandez
held "merely that theNew York State Constitution d[id] not compel
recognition of same-sex marriages solemnized inNew York."194
Since Martinez, five lower court cases have also recognized out
of-state same-sex marriages between New Yorkers. Three of those
cases upheld the decisions of state officials to accord spousal benefits
to same-sex spouses married in states where such marriages are le
gal.195 In the fourth case, the court held that it had subject-matter
jurisdiction to grant a divorce to the spouses of a Canadian same-sex
marriage and to determine custodial rights to the children born
through artificial insemination during and right before the mar
189. 850 N.Y.S.2d 740 (N.Y. App. Div. 4th Dept. 2008), leave to appeal dismissed,
889 N.E.2d 496 (N.Y. 2008).
190. Id. at 742.
191. Thus, New York courts have recognized foreign marriages between uncle and
niece, between underage spouses, common-law marriages, and marriages by proxy,
which would have been invalid if solemnized inNew York. See id.
192. Id. (emphasis added).
193. 855 N.E.2d 1 (N.Y. 2006).
194. Martinez, 850 N.Y.S.2d at 743 (second emphasis added).
195. See Godfrey v. DiNapoli, 866 N.Y.S.2d 844 (N.Y. Sup. Ct. 2008); Golden v.
Paterson, No. 260148-2008, 2008 WL 2344747, 2008 N.Y. Misc. LEXIS 5838 (N.Y.
Sup. Ct. Bronx Cty. 2008); Lewis v. N.Y.S. Dept. of Civil Service, 2008 N.Y. Misc.
LEXIS 1623 (N.Y. Sup. Ct. Albany Cty. 2008).

riage.196 The fifth case also involved a divorce proceeding between

two New Yorkers who entered into a Massachusetts same-sex mar
riage. At the time of this marriage, a Massachusetts statute (which
was later repealed) prohibited marriages between spouses whose
home states prohibited them from marrying. The New York court
held that this marriage "was not yet 'prohibited' in New York"197 be
cause it took place before the New York Court ofAppeals held in
Hernandez that same-sex marriages were not allowed in New York.
In other states, two 2008 cases held that marriages solemnized
in India in a traditional Hindu ceremonywould be valid in the forum
state if they were
valid in India.198 A third case held that an Iranian
marriage between first cousins who were then domiciled in Iran was
valid in the forum state because it did not contravene a strong public
policy of that state, even though its law did not allow first cousins to
marry in the forum state.199 A fourth case reached the same result
with regard to a common-law marriage contracted in a sister state.200
All of these cases are consistent with the choice-of-law principle that
a marriage that is valid under the law of the state where the mar
riage took place will be treated as valid in another state, unless it
contravenes a strong public policy of the latter state.201
However, the converse of this proposition is not necessarily true.

A marriage that is invalid in the state where the marriage took place
but valid under the law of a state that has a more significant relation
ship with the parties may be treated as valid in the latter state.202
One 2008 case, McPeek v. McCardle,203 involved this scenario. The
parties, who were domiciled in Indiana at all times, were married in
Ohio but obtained an Indiana marriage license instead of an Ohio
license. Under Ohio law, the marriage would be voidable. The Indi
ana Supreme Court held that this marriage should be treated as
valid in Indiana because the parties did not intend to evade Indiana
law: "[T]he only contact the parties had with Ohio is that the cere
mony was conducted in that state," and "any interest Ohio may have
in the . . .marriage is overcome by the more substantial interest [In
196. See Beth R. v. Donna 853 N.Y.S.2d 501

M., (N.Y. Sup. Ct. 2008).
197. CM. v. C.C., 867 N.Y.S.2d 884, at 889 (N.Y. Ct. 2008).
Sup.
198. See Verma v. Verma, No. 08CA19, 2008 WL 5064868 (Ohio Ct. App. 2d Dist.
Nov. 26, 2008); R.M. v. Dr. R., 855 N.Y.S.2d 865 (N.Y. Ct. 2008) and R.M. v. Dr.
Sup.
R., 859 N.Y.S.2d 906, No. 06-203062, 2008 WL 509092 (N.Y. Sup. Ct. Feb. 26, 2008).
199. See Ghassemi v. Ghassemi, 998 So.2d 731 (La. Ct. App. 1st Cir. 2008).
200. See In re Succession ofHendrix, 990 So.2d 742 (La. Ct. App. 5th Cir. 2008),
reh'g denied, (Sept. 22, 2008).
201. For authorities and discussion, see Symeon C. Symeonides, American Pri
vate International Law 234-36 (2008).
202. See id.
203. 888 N.E.2d 171 (Ind. 2008).

diana] has in recognizing the marriage of the parties who, after all,
obviously anticipated that their marriage would be valid."204
B. Divorce, Marital Property, and Alimony
In Aleem v. Aleem205 the parties were married in Pakistan and,

a few years later, moved to Maryland, where they lived for twenty
years. During this time, the husband acquired assets that would be
classified as marital property under Maryland law and would be sub
ject to the wife's equitable division claims under that law. Under
Pakistani law, these assets would be the husband's separate property
and would not be subject to any claims in favor of the wife. When the
wife filedfordivorce and equitable division inMaryland, the husband
went to the Pakistani Embassy inWashington and executed a talaq
(a unilateral, non-judicial divorce) by signing a document before wit
nesses stating three times "I Divorce thee Farah Aleem."206 Under
Pakistani law, a husband has a virtual automatic right to talaq but
the wife has a right to talaq only if such a right is included in the
written marriage agreement or if the husband otherwise delegates
that right to her?neither of which occurred in this case.
The husband argued that, because this divorce was effective
under Pakistani law, the Maryland court did not have jurisdiction to
divorce him and also could not divide marital property because,
under Pakistani law, all assets were his separate property. The lower
courts rejected both arguments and Maryland's highest court
affirmed.
The court held that "the enforceability of a foreign talaq divorce
. . .where has an
provision only the male, i.e., husband, independent
right to utilize talaq and the wife may utilize it onlywith the hus
band's permission, is contrary toMaryland's constitutional provisions
and thus is contrary to the 'public policy' ofMaryland."207 The court
noted: "Talaq lacks any significant 'due process' for the wife, and its
204. Id. at 176. In Davis v. State, 892 N.E.2d 156 (Ind.App. 2008), the spouses were
also Indiana domiciliaries and were married in Kentucky, after obtaining a Kentucky
marriage licence under false pretenses. They immediately returned to Indiana and
lived there as husband and wife for fouryears, when the husband committed a triple
murder forwhich he was later convicted and thewife was convicted forharboring him
and assisting him after the fact. If the marriage were valid, her conviction would vio
late an Indiana statute that exempted a spouse from the crime of harboring the other
spouse. The Indiana court held that the marriage was void and upheld the wife's con
viction. The court based its decision on an Indiana statute which provided that, when
Indiana domiciliaries go to another state to enter into a marriage prohibited by Indi
ana law and return to Indiana without establishing a domicile in the other state, their
marriage is void in Indiana. Indiana law prohibited this marriage because, at the
time of the marriage, the putative wife was seventeen years old and she did not have
her parents' consent to marry.
205. 947 A.2d 489 (Md. 2008).
206. Id. at 490.
207. Id. at 500-01.

use, moreover, directly deprives the wife of the 'due process' she is
entitled to when she initiates divorce litigation in this State."208 The
court also held that Pakistan's denial of equitable division rights to
property acquired by the husband during marriage were "wholly in
conflictwith the public policy of [Maryland]" and deserved "no com
ity" in Maryland's courts.209
In Van Kipnis v. Van Kipnis210 the parties were married in
France and executed a prenuptial agreement by which they opted out
of France's community property system and adopted instead "the
marital property system of separation of estates, as established by
the French Civil Code."211 The agreement provided that "each spouse
shall retain ownership and possession of the chattels and real prop
erty that he/she may own at this time or may come to own
subsequently by any means whatsoever."212 Shortly thereafter, the
spouses moved to New York, where they lived together for thirty
eight years before the wife filed for divorce and equitable division
under New York law. The husband invoked the prenuptial agreement
as a defense to the equitable division claims. The New York Court of
Appeals upheld the defense.
The court noted that, under New York's Equitable Distribution
Law, property that a prenuptial agreement designates as separate
property is not subject to equitable division claims in favor of the
other spouse. The court found that this agreement had this precise
effect because it stated that each spouse "shall retain ownership . . .
of . . . . . . come to own
property that he/she may subsequently."213
The court held that this agreement "constitute [d] an unambiguous
prenuptial contract that precludes equitable distribution of the par
ties' separate property."214
InMuchmore v. Trask215 the premarital agreement was made in
California in 1986, when both parties were domiciled there. Shortly
thereafter, the spouses moved toWashington and then to North Car
olina where, ten years later, the wife filed for divorce and alimony.
The husband invoked the premarital agreement, which contained an
explicit waiver of alimony. The wife argued that the waiver was un
enforceable in North Carolina because, at the time of the agreement
in 1986, North Carolina cases had held such waivers to be against
North Carolina's public policy. The court rejected the argument, not
ing that, unlike this case, those precedents involved intra-state
208. Id. at 501.

209. Id.
210. 11 N.Y.3d 573 (N.Y. 2008).
211. Id. at 575.
212. Id. at 575-76 (emphasis added).
213. Id.
214. Id. at 579.
215. 666 S.E.2d 667 (N.C. Ct. App. 2008).

agreements and cases. The court also noted that, like California,
North Carolina adopted the Uniform Premarital Agreement Act in
1987, which expressly permits alimony waivers. The court reiterated
that, under North Carolina's lex loci contractus rule, California law
governed the validity of the premarital agreement and that law did
not contravene North Carolina's public policy.216
In In reMarriage ofKowalewski,217 the Supreme Court ofWash
ington held that a Washington court that had in personam
jurisdiction over the spouses and subject matter jurisdiction over the
marital dissolution action also had the power to determine the
spouses' rights to immovables situated in another state (Poland in
this case). The court noted that, although a court does not have power
"directly to affect title" to real property located outside the state, a
court may "indirectly affect title by means of an in personam decree
operating on the person over whom it has jurisdiction."218 After ex
plaining why theWashington decree in this case did not purport to
directly affect title in the Polish immovables, the courtnoted that the
decree "in no way intrudes upon Poland's sovereign authority over
land disputes" because "[i]t remains for the Polish courts to decide
what effect, if any, the Washington decree has on the legal ownership
of real property in Poland."219
C. Adoption, Child Custody, and Child Support
Space limitations do not permit discussion of 2008 conflictscases

involving adoption,220 child custody,221 and child support,222 which
are cited in the footnotes.
216. For another 2008 case involving alimony, see Burrell v. Burrell, 192 P.3d 286
(Okla. 2007) (holding that, under the law of both Georgia and Oklahoma, ex-wife's
remarriage terminated ex-husband's alimony obligation imposed by Georgia
judgment).
217. 182 P.3d 959 (Wash. 2008).
218. Id. at 962.
219. Id. at 964. For another case a similar issue, see Guray v. Tacras, 194
involving
P.3d 1174 (Haw. Ct. App. 2008) (holding that a California court that had in personam
over both spouses also had power to assign to wife 100 percent of Hawaii
jurisdiction
immovables owned by the spouses as tenants by the entirety).
220. See In re Adoption ofDoe, 868 N.Y.S.2d 40, (N.Y. App. Div. 1st Dept. 2008)
(involving conflicting successive adoptions of Cambodian child by New York part
ners); In reAdoption ofK.C.J., 184 P.3d 1239 (Utah Ct. App. 2008) (holding thatman
determined to be child's unmarried biological father by Oklahoma courtwas entitled
to notice ofUtah adoption proceeding although fathermay have waived any rights
under Utah law to object to adoption).
221. See Doe v. Baby Girl, 657 S.E.2d 455 (S.C. 2008) and In re Baby Girl F., _
N.E.2d_, No. 2-08-0544, 2008 WL 5195638 (111.App. Ct. 2d Dist. Dec. 10, 2008)
(conflicting custody determinations in Illinois (formother) and South Carolina (for
prospective adoptive parents), ultimately resolved in both states in favor of South
Carolina); Hughes v. Fabio, 983 So.2d 946 (La. Ct. App. 5th Cir. 2008) (holding that
Massachusetts court that made initial custody determination had continuing jurisdic
tion and thus Louisiana did not have jurisdiction to decide custody); In reM.T., 899
N.E.2d 162 (Ohio Ct. App. 2d Dist. 2008) (holding that Alabama no longer had juris

VII. Statutes of Limitation
Space limitations do not permit discussion of cases involving

statutes-of-limitation conflicts. The following cases are among the
few worth noting: a case applying Oklahoma's reverse-borrowing
statute223 and a case not applying New York's borrowing statute;224 a
case applying England's statute of limitations in an action brought
against an auctioneer for conversion of a valuable table225 and a case
rejecting a laches defense in an action to recover a painting confis
cated during the Holocaust;226 and cases applying the Restatement
(Second),227 the Louisiana conflicts codification,228 and the tradi
tional procedural approach and its exceptions.229
VIII. Recognition of Judgments
The Uniform Foreign Money-Judgments Recognition Act of 1962

(UFMJRA), which is in force in thirty jurisdictions (includingNew
York), provides that a foreign country judgment "need not be recog
nized if . . . the judgment conflicts with another final and conclusive
230 In
judgment." contrast, in cases involving sister-state judgments,
the U.S. Supreme Court's decision in Treinies v. Sunshine Mining
Co.231 requires recognition of the last-in-time judgment. In Byblos
Bank Europe, S.A. v. Sekerbank Turk Anonym 232 the New
Syrketi
York Court ofAppeals was forced to choose between three judgments
involving a Belgian party and a Turkish party: (1) a 1994 Turkish
diction and Ohio had jurisdiction to decide custody between Ohio mother and
Alabama biological father); J.A. v. A.T., 960 A.2d 795 (N.J. Super. App. Div. 2008)
(holding that special equities favored New Jersey exercising jurisdiction over child
custody proceeding, even though Greece was children's home state and mother had
first filed application inGreek court seeking temporary custody of children).
222. State v.Watkins, 988 So.2d 176 (La. 2008), reh'g denied, (May 9, 2008) (hold
ing enforceable a California support order); In re Marriage of Gerkin, 74 Cal.Rptr.3d
188 (Cal. Ct. App. 4th Dist. 2008) (holding that Kansas support order did not lower
amount of support owed under prior California order); Wills v. Wills, 745 N.W.2d 924
(Neb. Ct. App. 2008) (holding that duration of support obligation imposed by New
Mexico judgment was governed by New Mexico law); Hamilton v. Hamilton, 895
N.E.2d 397 (Ind. Ct. App., 2008); In re Welfare of S.R.S., 756 N.W.2d 123 (Minn. Ct.
App. 2008).
223. Masquat v. DaimlerChrysler Corp., 195 P.3d 48 (Okla. 2008), denied
reh'g
(Oct. 27, 2008).
224. Eaton v. Keyser, 862 N.Y.S.2d 640 (N.Y. App. Div. 3d Dept. 2008).
225. Goldsmith v. Sotheby's, Inc., 859 N.Y.S.2d 420 (N.Y. App. Div. 1st Dept.
2008).
226. Vineberg v. Bissonnette, 548 F.3d 50 (1st Cir. 2008).
227. Shamrock Realty Co., Inc. v. O'Brien, 890 N.E.2d 863 (Mass. App. Ct. 2008).
228. Lestelle v. Asbestos Claims Management Corp., 998 So.2d 149 (La. Ct. App.
4th Cir. 2008).
229. See Griffinv. Hunt Refining Co., 664 S.E.2d 823 (Ga. Ct. App. 2008); Freeman
v.Williamson, 890 N.E.2d 1127 (111. App. Ct. 1st Dist. 2008).
230. Uniform Foreign Money-Judgments Recognition Act ? 4(b)(4) (1962).
231. 308 U.S. 66 (1939).
232. 885 N.E.2d 191 (N.Y. 2008).

judgment holding forthe Turkish party; (2) a 1996 German judgment

recognizing the Turkish judgment; and (3) a 2003 Belgian judgment
that re-adjudicated themerits of the Turkish judgment and held for
the Belgian party.
The court held that the Turkish judgment was entitled to recog
nition. The court noted that theUFMJRA does not specifywhich of
two conflicting foreign judgments is entitled to recognition, thus al
lowing courts discretion to recognize the earlier judgment, the later
judgment, or neither. The court also noted that the last-in-time rule
was not applicable to foreign judgments and was particularly ill
suited to this case, where "the last-in-time court departed from nor
mal res judicata principles by permitting a party to relitigate the
merits of an earlier judgment. . . [and] declined to accord recognition
to an earlier Turkish judgment that had been previously recognized
by a German court."233
The UFMJRA authorizes recognition of "any foreign judgment
that is final and conclusive and enforceable where rendered even
though an appeal therefrom is pending"234 InManco Contracting Co.
(W.W.L.) v. Bezdikian235 the Supreme Court of California, which
adopted theUFMJRA,236 had to interpret themeaning of the above
quoted language. In 1997, a Qatari court rendered a $4.2 million
judgment against Bezdikian, who appealed the judgment and then
leftthe country. In 2000, a Qatari appellate court amended the judg
ment by reducing the amount to $3.7 million. Slightly less than four
years later, in 2004, the Qatari judgment creditor sought recognition
of the judgment in California. Invoking California's four-year statute
of limitation,Bezdikian argued that the Qatari judgment was final
and enforceable as of 1997, "even though an appeal was pending" in
Qatar. The trial court agreed, the appellate court reversed, and the
California Supreme Court affirmed the appellate court.
The
Supreme Court concluded that the "better interpretation" of
the above-quoted provision was to recognize a foreign judgment, re
gardless of whether it has been appealed or is subject to appeal, "so
as the is final ... in the country where it was ren
long judgment
233. Id. at 195. For another New York case denying recognition to a sister-state
judgment, see Boudreaux v. State, Dept. of Transp., 897 N.E.2d 1056 (N.Y. 2008)
(holding that a Louisiana judgment rendered against the State ofLouisiana was not
enforceable in New York because itwas not enforceable in Louisiana unless the Loui
siana Legislature appropriated the fund for satisfying the judgment).
234. Uniform Foreign Money-Judgments Recognition Act ? 2 (1962). In contrast,
the new Uniform Foreign-Country Money Judgments Recognition Act (UFCMJRA)
(whichhas been adopted inCalifornia, Idaho, and Nevada) authorizes recognition ofa
"to the extent that the judgment: . . . under the law of the
foreign-country judgment
where rendered, is final, conclusive, and enforceable." Uniform For
foreign country
eign-CountryMoney Judgments Recognition Act ? 3.
235. 45 Cal. 4th 192, 195 P.3d 604 (Cal. 2008).
236. California has since adopted theUFCMJRA, but this case was decided under
the UFMJRA.

dered," and that the phrase "even though an appeal is pending" was
"not an exception to the requirements of finality ... in the nation of
origin," but rather was "meant to amplify the directive that finality
. . . [is] to be assessed based on the law of the foreign jurisdiction
where judgment was rendered. In other words, the 'appellate caveat'
operates to ensure that foreign rules regarding finality are honored,
even if they differ from the California approach."237 In this case,
under Qatari law, the judgment did not become final until 2000,
when the appellate court rendered its decision on appeal. Conse
quently, the California court held that the judgment was viable
under California's four-year statute of limitation.238
Cook v. Soo Line R. Co.239 involved the question of whether an
Illinois judgment granting a FNC dismissal and ordering plaintiff to
file in Indiana barred the plaintiff from filing in Montana. The Su
preme Court ofMontana answered the question in the negative. The
court noted that a FNC dismissal is "not an adjudication on the mer
its"240 and that state courts (unlike federal courts) do not have the
authority to transfer cases to another state on FNC grounds. Thus,
"Montana was not required to give the portion of the Illinois decision
ordering [plaintiff] to re-file in Indiana full faith and credit in
Montana."241
IX. U.S. Law in the International Arena
A. The Extraterritorial Reach of the U.S. Constitution
1. Habeas Corpus
In Boumediene v. Bush 242 the United States Supreme Court, in
a five-to-four decision, held that aliens detained as enemy combat
ants at the U.S. Naval Base at Guantanamo Bay, Cuba, were entitled
237. Manco Contracting, 45 Cal.4th at 201-02.

238. The court also held in the alternative that the applicable statute of limitation
was the ten-year catch-all statute. For another 2008 case involving a statute-of-limi
tations objection to the enforcement of a sister-state judgment, see McCoy v. Knobler,
260 S.W.3d 179 (Tex. App. Dallas 2008).
239. 198 P.3d 310 (Mont. 2008).
240. Id. at 376.
241. Id. at 379. For other 2008 cases involving recognition of judgments, see Java
Oil Ltd. v. Sullivan, 86 Cal.Rptr.3d 177 (Cal. Ct. App. 2d Dist. Dec. 2, 2008) (recogniz
ing Gibraltar judgment and rejecting claim that judgment was penal because it
imposed sanctions on attorney and attorney fees on client); L.L.C. v.
Enviropower,
Bear, Stearns & Co., Inc., 265 S.W.3d 16 (Tex. App. Houston 2008) (enforcinga New
York judgment entered as a result of sanctions on debtor known as "death penalty
sanctions"); Wells Fargo Bank, NA v. Kopfman, _ P.3d _, 2008 WL 3877222
(Colo.App. Aug. 21, 2008) (involving revival of expired judgment); Giragosian v. Ryan,
547 F.3d 59 (1st Cir. 2008) (claim preclusion). For cases involving arbitration awards,
see Stolt-Nielsen SA v. AnimalFeeds Int'l Corp., 548 F.3d 85 (2d Cir. 2008); Prosty
akov v. Masco Corp., 513 F.3d 716 (7th Cir. 2008); Uhl v. Komatsu Forklift Co., Ltd.,
512 F.3d 294 (6th Cir. 2008).
242. 128 S.Ct. 2229 (U.S. 2008).

to the constitutional privilege of habeas corpus to challenge the legal

ity of their detention and that a recent federal statute depriving
federal courts of jurisdiction to hear habeas corpus petitions filedby
these detainees was unconstitutional.243 Boumediene is in every re
spect a landmark decision, and has already been the subject of
extensive and learned academic commentary.244 The following is a
brief description (primarily for the benefit of foreign readers) of only
the "extraterritorial" aspect of the decision.
One issue in Boumediene was the type of authority the United
States exercises over the Guantanamo base.245 The United States oc
cupies this base pursuant to a 1903 lease with Cuba, which gives the
United States "complete jurisdiction and control" over the base, even
though it recognizes Cuba's "ultimate sovereignty" over it.246 A 1934
treaty with Cuba allows the United States to continue the lease at
will.247 The government argued that, because the United States does
not have formal de jure sovereignty over Guantanamo, the Constitu
tion does not extend to it.
The Court rejected the argument as formalistic and refused the
notion that constitutional protections automatically stop at the U.S.
borders. The Court interpreted analogous precedents as rejecting a
"rigid and abstract rule." According to these precedents, "whether a
constitutional provision has extraterritorial effect depends upon the
circumstances, the necessities .. . and, in particu
particular practical
243. The Suspension Clause of theU.S. Constitution provides that "[t]he Privilege
of theWrit ofHabeas Corpus shall not be suspended, unless when in Cases ofRebel
lion or Invasion the public Safety may require it." U.S. Const., Art. I, ? 9, cl. 2.
244. See Jacco Bomhoff, The Reach of Rights: "The Foreign" and "The Private" in
Conflict-of-Laws, State-Action, and Fundamental-Rights Cases with Foreign Ele
ments, 71 Law & Contemp. Probs. 39 (2008); A. Hays Butler, The Supreme Court's
Decision in Boumediene v.Bush: The Military Commissions Act of 2006 and Habeas
Corpus Jurisdiction, 6 Rutgers J. L. & Pub. Pol'y 149 (2008); Douglass Cassel, Pre
trial and Preventive Detention of Suspected Terrorists: Options and Constraints under
International Law, 98 J. Crim. L. & Criminology 811(2008); Roger S. Clark, The Mil
itaryCommissions Act of2006: An Abject Abdication byCongress, 6 Rutgers J. L. &
Pub. Pol'y 78 (2008); David D. Cole, Rights over Borders: Transnational Constitution
alism and Guantanamo Bay, 2008 Cato Sup. Ct. Rev. 47 (2008); Paul A. Diller, When
Congress Passes an Intentionally Unconstitutional Law: The Military Commissions
Act of2006, 61 SMU L. Rev. 281 (2008); Eric A. Posner, Boumediene and theUncer
tain March of Judicial Cosmopolitanism, 2008 Cato Sup. Ct. Rev. 23 (2008);
Matthew C. Waxman, Detention as Targeting: Standards ofCertainty and Detention
ofSuspected Terrorists, 108 Colum. L. Rev. 1365 (2008); Comment, Extraterritorial
Reach ofWrit ofHabeas Corpus, 122 Harv. L. Rev. 395 (2008); Comment, Jurisdic
tion over Americans Held Overseas, 122 Harv. L. Rev. 415 (2008).
245. In an earlier case, Rasul v.Bush, 542 U.S. 466 (U.S. 2004) (discussed in Syme
onides, 2004 Survey at 938-40), the Supreme Court held that the federal habeas
corpus statute (28 U.S.C. ? 2241) extended statutory habeas jurisdiction to Guanta
namo. The Congress amended that statute to remove that jurisdiction.
246. Boumediene, 128 S.Ct. at 2252.
247. See id. ("Cuba effectively has no rights as a sovereign until the parties agree
to modification of the 1903 Lease Agreement or the United States abandons the
base.").

lar, whetherjudicial enforcement of the provision would be

impracticable and anomalous."248 The Court enunciated a three-fac
tor test for delineating the extraterritorial reach of habeas corpus
protection. The three factors are: "(1) the citizenship and status of the
detainee and the adequacy of the process throughwhich that status
determination was made; (2) the nature of the sites where apprehen
sion and then detention took place; and (3) the practical obstacles
inherent in resolving the prisoner's entitlement to the writ."249
Applying this test, the Court concluded that the constitutional

protection of habeas corpus extended to the Guantanamo detainees.
The Court also held that the detainees were entitled to prompt
habeas corpus hearing, and should not be required to first exhaust
review procedures.250
In Munafv. Geren251 decided on the same day as Boumediene,
the Supreme Court held thatU.S. courtshad jurisdiction to entertain
habeas corpus petitions filed on behalf of two U.S. citizens detained
in Iraq by the so-called "Multinational Force-Iraq (MNF-I)." The
habeas statute provides that federal courts have jurisdiction to enter
tain habeas petitions by persons held "in custody under or by color of
the authority of the United States."252 The U.S. government argued
that petitioners were not within the reach of the statute because the
"multinational" force did not operate "solely under United States au
thority, but rather 'as the agent of a multinational force."253 The
Court rejected the argument. The Court pointed out that the disjunc
"
tive or" in the above quoted statute made clear that "actual custody
by the United States suffices for jurisdiction, even if that custody
could be viewed as 'under . . . color of another authority, such as the
MNF-I."254 The Court also pointed to the government's admission
that the petitioners were held "in the immediate 'physical custody' of
American soldiers who answer only to an American chain of com
mand" and that "it is 'the President and the Pentagon, the Secretary
of Defense, and the American commanders that control what . . .
American soldiers do'" in Iraq.255
248. Id. at 2255 (internal quotes omitted).

249. Id. at 2259.
250. On remand, the district court found that the government failed to establish
that five of those detainees were enemy combatants and ordered their release. See
Boumediene v. Bush, 579 F. Supp. 2d 191 (D.D.C. 2008). The detainees were released
shortly thereafter
251. 128 S. Ct.' 2207 (U.S. 2008), reh'g denied 129 S.Ct. 19 (U.S. 2008). For an
extensive discussion ofMunaf see Comment, Jurisdiction over Americans Held Over
seas, 122 Harv. L. Rev. 415 (2008).
252. 28 U.S.C. ?? 2241(c)(1) (emphasis added).
253. Munaf, 128 S. Ct. at 2216.
254. Id. at 2217.
255. Id. at 2216. The Court also held that, although U.S. courts had jurisdiction to
entertain these petitions, the courts should not grant the requested relief in the cir
cumstances of these two cases.

2. Fourth Amendment
In In re Terrorist Bombings of U.S. Embassies in East Africa256

the question was whether the Fourth Amendment to the U.S. Consti
tution applied to U.S. agents' search of a U.S. citizen's residence in a
foreign country. The Second Circuit distinguished between the two
clauses of the Fourth Amendment: the first clause, which protects
against unreasonable searches and seizures; and the second clause,
which requires the issuance of a warrant before conducting a
search.257 The court held that the reasonableness requirement did
apply to the foreign search (and found that the search was reasona
ble), but the warrant requirement did not apply.
The court noted that, in United States v. Verdugo-Urquidez258
which involved an alien searched in Mexico, the Supreme Court (1)
held that the Fourth Amendment did not protect aliens searched by
U.S. officials outside U.S. borders and (2) expressed doubts regarding
whether the warrant clause applied to any searches conducted
abroad. Relying on these doubts and finding no contrary precedent,
the Second Circuit held that the clause did not apply to any foreign
searches. The court reasoned, inter alia, that "ifU.S. judicial officers
were to issue search warrants intended to have extraterritorial effect,
such warrants would have dubious legal significance, if any, in a for
eign nation" and the warrants would "neither empower a U.S. agent
to conduct a search nor . . .necessarily compel the intended target to
comply."259 For different reasons, requiring a foreign warrant would
not be practicable because not all foreign countries have such a proce
dure and, in any event, the U.S. Constitution "does not condition our
government's investigative powers on the practices of foreign legal
regimes."260
3. Fifth Amendment
In In re Terrorist Bombings of U.S. Embassies in East Africa,261

a companion case decided by the same court and involving two aliens
arrested in Kenya, one question the court faced was the applicability
of the Fifth Amendment's right against self-incrimination to state
ments made by the alien defendants to U.S. agents in Kenya.262 The
256. 548 F.3d 237 (2d Cir. 2008).

257. The Fourth Amendment provides that "[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be
and the persons or things to be seized." U.S. Const, amend. IV.
searched,
258. 494 U.S. 259 (1990).
259. 548 F.3d at 290.
260. Id.
261. 548 F.3d 237 (2d Cir. 2008). "
262. The Fifth Amendment in part that [n]o person . . . shall be com
provides
in any criminal case to be a witness against himself." U.S. Const, amend. V.
pelled

court distinguished this case from its companion case, which involved
the application of the Fourth Amendment. The court noted that,
while a violation of the Fourth Amendment's prohibition of unreason
able searches and seizures occurs at the time of the search or
seizure?regardless of whether unlawfully obtained evidence is ever
offered at trial?a violation of the Fifth Amendment's right against
self-incrimination occurs only when a compelled statement is offered
at trial against the defendant. Consequently, a compelled statement
is inadmissible at a U.S. trial, even if itwas obtained abroad. Moreo
ver, because the Fifth Amendment protects "persons," it encompasses
not only U.S. citizens, but also aliens such as the defendants in this
case.
Thecourt then turned to the related question of whether the re

quirement of informing suspects of their Miranda rights263 applied to
overseas interrogations conducted by U.S. agents while the suspects
were detained by a foreign government. The court answered the ques
tion as follows: "Proceeding on the assumption that the Miranda
framework generally governs the admissibility of statements ob
tained overseas by U.S. agents, we conclude that the application of
that framework to overseas interrogations may differ from its domes
tic application, depending on local circumstances, in keeping with the
context-specific nature of the Miranda rule."264 Examining the facts
of this case, the court found that the interrogating U.S. agents "sub
stantially complied with the government's obligations, insofar as it
had any, under Miranda"265
In Arar v. Ashcroft 266 the plaintiff was a dual-citizen of Canada
and Syria who was arrested by U.S. authorities at New York's JFK
airport during a stopover of a flight originating in Tunisia and des
tined for Canada. He was held incommunicado in New York for
thirteen days, and then was transported to Jordan and then Syria,
where he was held for thirteen months before being released without
charges to the custody of the Canadian embassy. He sued various
U.S. officials under the Torture Victim Protection Act (TVPA)267 and
under the due process clause of the Fifth Amendment. The district
court concluded that the plaintiffwas ineligible for the protection of
the TVPA because "U.S. citizens, and only U.S. citizens, are covered
by the TVPA."268 As pointed out in the 2006 Survey, this conclusion
was plainly wrong because the TVPA does apply?and has been ap
263. See Miranda v. Arizona, 384 U.S. 436 (1966).

264. 548 F.3d at 262.
265. Id. at 276.
266. 532 F.3d 157 (2d Cir. 2008), reh'g in banc granted, (Aug. 12, 2008).
267. See Pub.L. No. 102-256, 106 Stat. 73 (enactedMar. 12, 1992) (codifiedas Note
to 28 U.S.C. ? 1350).
268. Arar v. Aschroft, 414 F. Supp. 2d 250, at 263 (E.D.N.Y. 2006).

plied?to aliens.269 The Second Circuit acknowledged that fact,270

but affirmed the district court on the ground that theU.S. officialdid
not act "under color of foreign law"271 as required by the TVPA.
The Second Circuit panel then examined claims that the defend
ants violated the plaintiffs due process rights by (a) removing him to
Syria with the knowledge or intention that he would be tortured
there, and (b) subjecting him tomistreatment during his detention in
theUnited States. Basing its opinion on tortured logic, the panel de
nied any relief. Because the Second Circuit granted a rehearing en
banc, this case will be discussed in next year's Survey.
In Atamirzayeva v. United States212 the question was whether
the Takings Clause of the Fifth Amendment applied to non-resident
aliens in cases involving expropriation of property situated abroad.273
The plaintiff was a citizen of Uzbekistan, and the property in ques
tion (a building) was also situated inUzbekistan. The plaintiff sued
theUnited States, claiming that Uzbek authorities, at the behest of
U.S. embassy officials, razed her building (which was adjacent to the
U.S. Embassy in Tashkent) to improve security at the embassy. The
court denied relief, distinguishing the case from Turney v. United
States,214 which allowed a Philippine corporation to bring an action
against theUnited States fora taking ofproperty located in the Phil
ippines. The court reasoned that, in Turney, the plaintiff corporation
had been formed by U.S. citizens and the case had other connections
with the United States, whereas in Atamirzayeva, both the plaintiff
and the case lacked any relationship to the United States.
B. Application of Federal Law to Cases with Foreign Elements
1. The Alien Tort Statute

Vietnam Ass'n for Victims of Agent Orange v. Dow Chemical
Co215 is the latest in a long series of cases?a total of 148 so far?
arising fromthe use of toxicherbicides byUnited States armed forces
in Vietnam. Many of the previous cases involved suits filed by U.S.
veterans or civilians. This case involved suits filed by Vietnamese na
269. See Symeonides, 2006 Survey at 776.

270. Arar, 532 F.3d at 176 n.3.
271. Id. at 176.
272. 524 F.3d 1320 (Fed. Cir. 2008), reh'g en banc denied, (Aug. 5, 2008).
273. This Clause provides: "nor shall private property be taken for public use,
without compensation." U.S. Const, amend. V. It is well settled that nonresident
just
aliens may invoke this Clause to seek remuneration for the expropriation of their
property located within the United States, see Russian Volunteer Fleet v. United
States, 282 U.S. 481 (1931), and thatU.S. citizensmay invoke the same clause in the
event of an expropriation of their foreignproperty by theUnited States. See Seery v.
United States, 130 Ct. CI. 481, 127 F. Supp. 601 (Ct. CI. 1955).
274. 126 Ct. CI. 202, 115 F. Supp. 457, 464 (Ct. CI. 1953).
275. 517 F.3d 104 (2d Cir. 2008), petition for cert,filed, 77 USLW 3243 (Oct. 6,
2008).

tionals and a nonprofit association against the chemical companies

that manufactured the herbicides for the U.S. Government. The suits
were filed under theAlien Tort Statute (ATS) of 1789, which grants
federal courts jurisdiction over civil actions by aliens for torts com
mitted "in violation of the law of nations or a treaty of the United
States."276 In a thorough opinion discussed in the 2005 Survey, the
district court dismissed the suits.277 The Second Circuit affirmed.
The Second Circuit noted that, under the Supreme Court's deci
sion in Sosa u. Alvarez-Machain278 the ATS grants an action only for
a "modest number" of violations of well-defined and universally ac
cepted rules of international law that are similar to violations known
"
to Congress at the time of enacting the ATS: namely, those torts
corresponding to Blackstone's three primary offenses: violation of
safe conducts, infringement of the rights of ambassadors, and
piracy."279The Second Circuit held that the plaintiffs failed to show
such a violation.
The plaintiffs invoked, interalia, an Annex to the 1907 Hague
Convention (IV) Respecting the Laws and Customs ofWar on Land
known as the "1907 Hague Regulations,"280 which prohibits the use
of "poison or poisoned weapons." Relying on internal U.S. Army docu
ments, the court concluded that the use of Agent Orange did not
violate the Hague Regulations because itwas "used as a defoliant and
not as a poison designed for or targeting human populations."281 The
court noted that the Agent Orange defoliation campaign heavily
targeted, among other things, vegetative cover adjacent to U.S. mili
tary bases and surrounding areas, "making it all the more
implausible that the government intended to use the herbicide as a
poisonous weapon during war."282
The plaintiffs also relied on the 1925 Geneva Protocol for the
Prohibition of the Use inWar ofAsphyxiating Poisonous or Other
Gases and of Bacteriological Methods ofWarfare,283 which provides
that: "the use in war of asphyxiating, poisonous or other gases, and of
all analogous liquids, materials or devices, has been justly con
demned by the general opinion of the civilised world; and . . . the
prohibition of such use . . . shall be as a part of
universally accepted
International Law, binding alike the conscience and the practice of
276. 28 U.S.C. ? 1350.

277. See In re Agent Orange Product Liability Litigation, 373 F. Supp. 2d 7
(E.D.N.Y. 2005), discussed in Symeonides, 2005 Survey at 582-84.
278. 542 U.S. 692 (2004), discussed in Symeonides, 2004 Survey at 926-30, 936-38.
279. Sosa, 542 U.S. at 724.
280. 36 Stat. 2277, T.S. No. 539.
281. Agent Orange, 517 F.3d at 119.
282. Id. at 120.
283. 26 U.S.T. 571, 94 L.N.T.S. 65 (entered into forceFeb. 8, 1928, for theUnited
States, Apr. 10, 1975).

nations."284 However, because the United States did not ratify this
Protocol until 1975?after the events giving rise to this case?the
Protocol was not "a treaty of the United States" under the ATS. More
over, the United States ratified the Protocol under certain
reservations and stated its understanding that the Protocol did not
cover its use of chemical herbicides in Vietnam. The court opined
that, because of these reservations, "it would be an impermissible
stretch to find that the 1925 Geneva Protocol had acquired the status
of binding customary international law during the Vietnam
conflict."285
Sarei v. Rio
Tinto, PLC286 was also an ATS action by current and
former residents of Papua New Guinea (PNG) against a multina
tional mining company, alleging international law violations
committed by the PNG military forces at the company's behest. A
three-memberpanel of theNinth Circuit Court ofAppeals held that:
(1) the plaintiffs' claims for war crimes and racial discrimination im
plicated specific, universal, and obligatory norms of international law
that properly formed the basis forATS claims, and claims for the
company's vicarious liability for violations of jus cogens norms were
actionable under the ATS; (2) the trial court erred in dismissing
plaintiffs' claims under various non-justiciability doctrines; and (3)
because the ATS text does not require exhaustion of local remedies
before filing suit in the United States, the courts should not engraft
such a requirement without guidance from the Supreme Court or
Congress. The Ninth Circuit granted rehearing en banc to consider
only the issue of the exhaustion of local remedies.
On rehearing, a plurality of an eleven-member panel held that
the Supreme Court's Sosa decision "directed . . . [that] exhaustion of
local remedies should 'certainly' be considered in the 'appropriate
case' for claims brought under the ATS."287 The court held that a
showing of exhaustion of local remedies should be required as a "pru
dential principle"288 and that the defendant should bear the burden
of pleading and justifying the exhaustion requirement, including the
availability of local remedies. The court remanded the case to the dis
trict court with instructions to determine whether exhaustion was
necessary in this case.
Two members of the panel concurred but concluded that theATS
itself "and not mere judicial prudence," required exhaustion of local
284. Id.
285. Agent Orange, 517 F.3d at 118.
286. 487 F.3d 1193 (9th Cir. 2007), reh'g en banc granted, 499 F.3d 923 (9th Cir.
2007), remanded by Sarei v. Rio Tinto, PLC, 550 F.3d 822 (9th Cir. 2008).
287. Sarei v. Rio Tinto, PLC, 550 F.3d 822 (9th Cir. 2008) at 824 {quoting Sosa v.
Alvarez-Machain, 542 U.S. 692 at 733 n.21 (2004)).
288. Id. at 827.

remedies.289 Two members of the panel dissented on the ground that

the court "exceed [ed] the authority granted by Congress and the lim
its imposed by the Constitution's separation of powers by applying
the ATS to a dispute not involvingUnited States territoryor citi
zens."290 Another member concurred in the judgment but also sided
with the dissent's analysis findinglack of jurisdiction.291Finally, four
members dissented on the ground that "neither the Supreme Court
nor any circuit court has ever imposed an exhaustion requirement,
prudential or otherwise, on a case brought under the Alien Tort
Statute."292
2. Other Statutes
Several other appellate cases decided in 2008 involved the appli

cation of other federal statutes to cases with foreign elements,
including the following: the Racketeer Influenced and Corrupt Orga
nizations Act (RICO);293 theAnti-TerroristAct of 1991 (ATA);294 the
Copyright Act;295 the Lanham Trade-Mark Act;296 the Securities Ex
change Act of 1934;297 the Foreign Sovereign Immunities Act
(FSIA);298 theAct to Prevent Pollution fromShips (APPS);299 a stat
289. Id. at 833.

290. Id. at 838.
291. See id. at 840-41.
292. Id. at 841-46.
293. See Liquidation Com'n of Banco Intercontinental, S.A. v. Renta, 530 F.3d 1339
(11th Cir. 2008) (applyingRICO to Florida businessman's wrongful diversion of funds
frombank in the Dominican Republic; although the effectsof the diversion were felt
predominantly in the Dominican Republic, a significant amount of the conduct in fur
therance of the RICO scheme occurred in the United States, and among the primary
goals of the scheme was the enrichment of an American entity owned by the Florida
businessman).
294. See Boim v. Holy Land Foundation forRelief and Development, 549 F.3d 685,
Nos. 05-1815, 05-1822, 05-1816, 05-1821, 2008 WL 5071758 (7th Cir. 2008) (applying
ATA to domestic organization that donated money to second domestic organization
that provided material support to terrorist group that targeted U.S. citizens abroad).
295. See Litecubes, LLC v. Northern Light Products, Inc., 523 F.3d 1353 (Fed. Cir.
2008), cert, denied, GlowProducts.com v. Litecubes, LLC, 129 S.Ct. 578 (U.S. 2008)
(CopyrightAct applied when alleged infringersold copyrightedwork fromCanada to
customers inUnited States and then shipped that work toUnited States buyers).
296. See American Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321 (5th Cir.
2008), reh'g and reh'g en banc denied, 277 Fed. App'x 525 (5thCir. 2008) (holding that
the Lanham Act applied to Arkansas corporation's Saudi Arabia sale of a product
infringing on Delaware corporation's trade mark).
297. See Morrison v. National Australia Bank Ltd., 547 F.3d 167 (2d Cir. 2008)
(finding lack of subject matter jurisdiction over putative class action brought under
Securities Exchange Act by foreign investors against Australian banking corporation,
alleging securities fraud as to foreign transactions; purported fraudulent statements
at issue emanated from corporate headquarters in Australia, statements lacked any
effect upon United States, and attenuated chain of causation existed between corpora
tion's actions and statements that reached investors).
298. See O'Bryan v. Holy See, 549 F.3d 431 (withdrawn frombound volume) 2008
WL 4964143 (6th Cir. Nov. 24, 2008) (class action against the Holy See brought by
alleged victims of sexual abuse by Roman Catholic clergy;holding that:Holy See was
foreign state within meaning of FSIA: commercial activity exception to immunity

ute codifyingtheUnited States' obligations under the Convention for

the Suppression of Unlawful Acts Against the Safety ofMaritime
Navigation;300 and an Arizona statute criminalizing the solicitation
to commit human smuggling into Arizona.301
C. The Domestic Effect oflCJ Judgments

InMedelUn v. Texas,302 another important decision which is also
the subject of extensive commentary,303 the Supreme Court held that
a decision of the International Court ofJustice (ICJ) was not directly
enforceable under domestic federal law. Consequently, the judgment
did not preempt state procedural rules that barred successive appeals
and habeas corpus petitions.
In the Case Concerning Avena and Other Mexican Nationals
(Mex. v. U.S.),304 commonly known as the Avena decision, the ICJ
held that theUnited States had violated the Vienna Convention on
Consular Relations by failing to inform fifty-one Mexican nationals
under FSIA did not apply; tortious act exception to FSIA immunitydid not apply to
negligence claims against Holy See, but did apply to claims arising from supervision
of allegedly abusive priests by archbishops, bishops, and otherHoly See personnel in
the United States; and discretionary function exception to the tortious act exception
to FSIA immunitydid not apply to preclude supervisory claims).
299. See United States v. Jho, 534 F.3d 398 (5th Cir. 2008) (applyingAPPS Act to
foreign ship whose captain failed to keep accurate oil record book and dumped oil
contaminated bilge waste in Gulf ofMexico).
300. See United States v. Shi, 525 F.3d 709 (9th Cir. 2008), cert denied, Lei Shi v.
U.S., 129 S.Ct. 324 (U.S. 2008) (applying this statute against Chinese national who
seized control of Taiwanese vessel while sailing in international wa
forcibly fishing
ters offcoast ofHawaii, and killed captain and firstmate).
301. See State v. Flores, 188 P.3d 706 (Ariz. Ct. App. Div. 1 2008) (applying statute
to a Mexican defendant who solicited another Mexican in Mexico to smuggle defen
dant into Arizona).
302. 128 S.Ct. 1346 (U.S. 2008).
303. See Christina M. Cerna, The Right to Consular Notification as a Human
Right, 31 Suffolk Transnat'l L. Rev. 419 (2008); John Cerone, Making Sense of the
U.S. President's Intervention inMedelUn, 31 Suffolk Transnat'l L. Rev. 279 (2008);
Martha F. Davis, Upstairs, Downstairs: Subnational Incorporation of International
Human Rights Law at theEnd of an Era, 11 Fordham L. Rev. 411 (2008); Valerie
Epps, The MedelUn v. Texas Symposium: A Case Worthy of Comment, 31 Suffolk
Transnat'l L. Rev. 209 (2008); J. Scott Kohler, Interpretive Federalism and the
Treaty Power Implications of Sanchez-Llamas v. Oregon, 46 Colum. J. Transnat'l L.
468 (2008); Julian G. Ku, MedelUn's Clear Statement Rule: A Solution for Interna
tionalDelegations, 11 Fordham L. Rev. 609 (2008); Janet Koven Levit, Does MedelUn
Matter?, 11 Fordham L. Rev. 617 (2008); Margaret E. McGuinness, Three Narratives
of MedelUn v. Texas, 31 Suffolk Transnat'l L. Rev. 227 (2008); John F. Murphy,
MedelUn v. Texas: of the Supreme Court's Decision for the United States
Implications
the Rule in International 31 Suffolk Transnat'l L. Rev. 247
and of Law Affairs,
(2008); Jordan J. Paust, Medelliin, Avena, theSupremacy of Treaties, and Relevant
Executive Authority, 31 Suffolk Transnat'l L. Rev. 301 (2008); Ilya Shapiro, Medel
Un v. Texas and theUltimate Law School Exam, 2008 Cato Sup. Ct. Rev. 63 (2008);
Carlos Manuel Treaties as Law of the Land: The Supremacy Clause and the
Vazquez,
Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599 (2008); Ernest A. Young,
Rulings as Judgments and Precedents, 18 Duke J. Comp. & Int'l L.
Supranational
477 (2008); Comment, Self-Execution of Treaties, 122 Harv. L. Rev. 435 (2008).
304. 2004 I.C.J. 12.

(including the petitioner inMedelUn) of their Vienna Convention

rights to notify a Mexican consular officer of their detention. The ICJ
found that the Mexican nationals were entitled to review and recon
sideration of their U.S. state-court convictions and sentences,
regardless of their failure to comply with generally applicable state
procedural rules governing challenges to criminal convictions. In
Sanchez-Llamas v. Oregon,305 the Supreme Court held that the Con
vention did not preclude the application of these state rules.
President Bush then issued a memorandum stating that the United
States would discharge its international obligations under Avena by
having State courts give effectto the ICJ decision. The Court held in
MedelUn that neither this memorandum nor the Avena judgment
were directly enforceable in state courts.306
The petitioner inMedelUn argued that, under the Constitution's
Supremacy Clause, which provides that treaties "shall be the su
preme Law of the Land,"307 the Vienna Convention and the ICJ
judgment rendered under it were binding on state courts. The Court
rejected the argument. The Court reasoned as follows:
(1) The Vienna Convention is not self-executing and there is no

federal legislation implementing it.
(2) By signing the Convention's Optional Protocol, the United

States consented to the ICJ's jurisdiction with respect to claims
arising under the Convention, but "submitting to jurisdiction and
agreeing to be bound are two different things."308
(3) The obligation to comply with ICJ judgments derives not

from the Convention or the Protocol, but rather from Article 94 of
the United Nations Charter.
(4) Although Article 94(1) provides that "[e]ach Member of the

United Nations undertakes to comply with the decision of the
[ICJ] in any case to which it is a party,"309 this provision does not
make ICJ decisions directly binding within each U.N. member
country; rather it signifies "a commitment on the part of U.N.
Members to take future action through their political branches to
comply with an ICJ decision."310
(5) This commitment creates an "international law obligation" of

the "political branches," but "not all international law obligations
305. 548 U.S. 331 (2006).

306. The Court noted that the petitioner and his amici "have [not] identifieda sin
gle nation that treats ICJ judgments as binding in domestic courts."MedelUn, 128
S.Ct. at 1363.
307. U.S. Const., Art. VI, cl. 2.
308. MedelUn, 128 S.Ct. at 1358.
309. 59 Stat. 1051, T.S. No. 993 (emphasis added by Court).
310. MedelUn, 128 S.Ct. at 1358 (emphasis in original).

automatically constitute binding federal law enforceable in

United States courts."311
(6) Article 94(2) of the U.N. Charter provides the "sole remedy
for noncompliance" with an ICJ judgment, and that remedy is
"diplomatic" and "non-judicial": The aggrieved state (Mexico
here) may refer the non-complying state, (the United States) to
the U.N. Security Council, where, of course, the United States
has "the unqualified right to exercise its veto."312
D. Jurisdiction and Forum Non Conveniens
In Sinochem International Co. Ltd., v. Malaysia International

Shipping Corp.313 the Supreme Court held that federal district
courts are not required to first establish their own jurisdiction before
dismissing a suit on FNC grounds.
In Gulf Oil Corp. v. Gilbert314 the Court stated that the FNC
doctrine "can never apply if there is absence of jurisdiction,"315 and
that the doctrine "presupposes at least two forums in which the de
fendant is amenable to process."316 In 1998, the Court stated that
courts must first confirm the existence of jurisdiction before they con
sider the merits of a case. As the Court put it, "[hypothetical
jurisdiction produces nothing more than a hypothetical judgment?
which comes to the same thing as an advisory opinion, disapproved
by this Court from the beginning."317 Since then, a three-way split
has developed among the intermediate courts as to whether an FNC
dismissal is a decision "on the merits," which cannot be made before a
court confirms its jurisdiction. The Fifth, Seventh, and Ninth circuits
have held that it is.318 The Second Circuit and the D.C. Circuit have
311. Id. at 1356.

312. Id. at 1359. The Court also held that the President acted beyond his authority
in issuing thememorandum that attempted to have state courts complywith the ICJ
judgment. See id. 1367-72.
313. 549 U.S. 422, 127 S.Ct. 1184 (2007). For discussion of this case, see J. Stanton
Hill, Towards Global Convenience, Fairness, and Judicial An Argument
Economy: in
Support of Conditional Forum non Conveniens Dismissals Before Determining Juris
diction in United States Federal District Courts, 41 Vand. J. Transnat'l L. 1177
(2008); Nathan Viavant, Sinochem International Co. v. Malaysia International Ship
The United States Court Puts Forum non Conveniens First, 16
ping Corp.: Supreme
Tul. J. Int'l & Comp. L. 557 (2008).
314. 330 U.S. 501 (1947).
315. Id. at 504.
316. Id. at 506-07.
317. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 at 101(1998). See also
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) (ruling that this principle ap
plied equally to subject matter as well as personal jurisdiction).
318. See Dominguez-Cota v. Cooper Tire & Rubber Co., 396 F.3d 650 (5th Cir.
2005); Kamel v. Hill-Rom Co., 108 F.3d 799 (7th Cir. 1997); Patrickson v. Dole Food
Co., 251 F.3d 795 (9th Cir. 2001), affd inpart, cert,dismissed inpart, 538 U.S. 468
(2003).

held that it is not.319 In 2006, the Third Circuit laid out a thirdway.
In Malaysia Int'l Shipping Corp. v. Sinochem Int'l Co. Ltd.,320 the
court held that, although FNC is a non-merits ground for dismissal,
the court could not dismiss the case on FNC grounds unless and until
it determined definitively that ithad both subject-matter and in per
sonam jurisdiction.
In Sinochem, the Supreme Court reversed the Third Circuit. The
Court noted that, although the above-quoted statements inGulf Oil
were "perhaps less than felicitously crafted,"321 they did not "negate a
court's authority to presume, rather than dispositively decide, the
propriety of the forum inwhich the plaintifffiled suit."322Noting that
district "ha[ve] leeway to choose among threshold grounds for
courts
denying audience to a case on the merits,"323 the Supreme Court held
that district courts "may dispose of an action by a forum non con
veniens dismissal, bypassing questions of subject-matter and
personal jurisdiction, when considerations of convenience, fairness,
and judicial economy so warrant."324
Completed on December 31, 2008 Symeon C. Symeonides

Willamette University College ofLaw
Salem, OR
319. See Monegasque de Reassurances S.A.M. v. NAK Naftogaz of Ukraine, 311

F.3d 488 (2d Cir. 2002); In re Papandreou, 139 F.3d 247 (D.C.Cir. 1998).
320. 436 F.3d 349 (3d Cir. 2006), reversed 127 S.Ct. 1184 (U.S. 2007) (discussed in
Symeonides, 2006 Survey at 772-73).
321. Sinochem, 127 S.Ct. at 1193 (internal quotes omitted).
322. Id.
323. Id. at 1191 (internal quotes omitted).
324. Id. at 1192. The Court noted that, in this case, the foreign court had already
affirmed its own jurisdiction. Consequently, the Supreme Court did not have to ad
dress situations in which the foreign court's jurisdiction is uncertain and, for this
reason, the district court granted conditional FNC dismissal. See id. at 1193.


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Choice of Law in the American Courts in 2008: Twenty-Second Annual Survey

Author(s): SYMEON C. SYMEONIDES

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Choice of Law in the American Courts in 2008:

Twenty-Second Annual Survey

* Dean & Alex L. Parks

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2. Fourth Amendment. 320

This is the Twenty-Second Annual Survey ofAmerican Choice-of

1. The previous twenty-one surveys are, in chronological order: P. John Kozyris,

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Two U.S. Supreme Court cases and several intermediate court

Several cases involving cross-border torts and applying the law of

Several cases refusing to enforce clauses precluding class-action or

Several New York cases recognizing Canadian and Massachusetts

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resolving an ambiguity in the Uniform Foreign Money-Judgments

4. See Mellk v. Sarahson, 229 A.2d 625 (N.J. 1967).

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10. The Appellate Division's opinion is discussed in Symeonides, 2007 Survey

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In contrast, the court found Pennsylvania's interest to be very

The court compared the interests of the two states in light of

Pennsylvania's policy of conduct-regulation and recompense

The court concluded:

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Three members of the court dissented, criticizing the majority

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to revisit the matter since the mid-1990s.28 In Ferrell v. Allstate In

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term "false conflict" and any association with Currie's interest

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the rigidity of the Restatement (First) is particularly ill

As the last quoted sentence indicates, the court's adoption of the

C. The Methodological Table

New Jersey's abandonment of interest analysis in favor of the

39. Id. at 1173 (footnoteomitted).

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cally,42 while California courts prefer to weigh not the interests

Table 1. Alphabetical List of States and Choice-of-Law

Signif. Restate- Interest Lex Better Combined

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Signif. Restate- Interest Lex Better Combined

45. See Ferrell v. Allstate, discussed supra II.B.

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passing through Connecticut en route from its point of departure in

47. Id. at 970 (emphasis added).

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fendant was driving in excess of Connecticut's speed limit (by forty

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a third-partyclaim for contribution brought by parties who contrib

Camp Jaycee57 and Jaiguay58 bring to sixty-one the number of

Chart 1. Cases Applying Common-Domicile Law

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Chart 2a. Babcock-Pattern Cases Applying

Thirty-five of the sixty-one cases involved the Babcock v. Jackson pat

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Table 2. Law Applied in Converse-Babcock Pattern Cases

_Contact states and their laws_Law applied

1 I 1966\McSwainPA I I PA 1 COL j COL j PA I 1 1

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Chart 2b. Converse-JBabcock Pattern Cases Applying

As the table indicates, eighteen of the twenty-six cases (or sixty

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