DATE DOWNLOADED: Thu Feb 22 03:24:43 2024

SOURCE: Content Downloaded from HeinOnline

Citations:
Please note: citations are provided as a general guideline. Users should consult their preferred
citation format's style manual for proper citation formatting.

Bluebook 21st ed.

Willis L. M. Reese, Depecage: A Common Phenomenon in Choice of Law, 73 COLUM. L. REV.
58 (1973).

ALWD 7th ed.

Willis L. M. Reese, Depecage: A Common Phenomenon in Choice of Law, 73 Colum. L. Rev.
58 (1973).

APA 7th ed.

Reese, Willis L. M. (1973). Depecage: common phenomenon in choice of law. Columbia
Law Review, 73(1), 58-75.

Chicago 17th ed.

Willis L. M. Reese, "Depecage: A Common Phenomenon in Choice of Law," Columbia Law
Review 73, no. 1 (January 1973): 58-75

McGill Guide 9th ed.

Willis L. M. Reese, "Depecage: A Common Phenomenon in Choice of Law" (1973) 73:1
Colum L Rev 58.

AGLC 4th ed.

Willis L. M. Reese, 'Depecage: A Common Phenomenon in Choice of Law' (1973) 73(1)
Columbia Law Review 58

MLA 9th ed.

Reese, Willis L. M. "Depecage: A Common Phenomenon in Choice of Law." Columbia Law
Review, vol. 73, no. 1, January 1973, pp. 58-75. HeinOnline.

OSCOLA 4th ed.

Willis L. M. Reese, 'Depecage: A Common Phenomenon in Choice of Law' (1973) 73 Colum
L Rev 58 Please note: citations are provided as a general
guideline. Users should consult their preferred citation format's style manual for
proper citation formatting.

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline-org-dsnlu.knimbus.com/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
 DEPECAGE: A COMMON PHENOMENON
IN CHOICE OF LAW
WILLIS L. M. REESE*

Amidst the chaos and tumult of choice of law there is at least one point
on which there seems to be general agreement in the United States. This
is that choice of the applicable law should frequently depend upon the issue
involved." The search in these instances is not for the state whose law will
be applied to govern all issues in a case; rather it is for the rule of law that
can most appropriately be applied to govern the particular issue. As a result,
situations do arise where the court must decide whether it should apply
the rules of different states to determine different issues in a single case.
This process of applying the rules of different states to determine different
issues has the forbidding name of d6peqage, although it is sometimes more
colloquially referred to as "picking-and-choosing." Little consideration has
as yet been given to the proper scope of application of this process. It has
rarely attracted the attention of the courts,2 undoubtedly because in the cases
decided to date the relevant rules of the interested states have usually dif-
fered only with respect to one issue. Likewise, with some notable excep-
tions,3 the process has largely been ignored by the writers. The attempt will
be made in the pages that follow to explore some of its aspects.
First, there is the problem of definition. Dpe~age can be defined broadly
to cover all situations where the rules of different states are applied to govern
different issues in the same case. It can be defined more narrowly to be
present only when the rules of different states are applied to govern different
substantive issues, and the most restrictive definition would confine the
term to situations where by applying the rules of different states to different
issues a result is reached which could not be obtained by exclusive application
of the law of any one of the states concerned. The first of these definitions
is the one that will be adopted in this article, since it is the only one broad
enough to permit discussion of the entire field. It does, however, have the
* Charles Evans Hughes Professor of Law and Director of the Parker School of
Foreign and Comparative Law, Columbia University; Reporter, Restatement (Second)
of Conflict of Laws.
1. See, e.g., RESTATEMENT (SECOND) OF CoNFLIcr OF LAws §§ 145, 186, 222, 283, 291,
294, 302 (1969).
2. A striking exception is Manos v. Trans World Airlines, Inc., 295 F. Supp. 1166
(N.D. Ill. 1968), 295 F. Supp. 1171 (N.D. Ill. 1969) where the court suggested that five
issues might each be determined by the rule of a different state. See also Satchwill v.
Vollrath Co., 293 F. Supp. 533 (E.D. Wis. 1968); Long v. Pan American World Air-
ways, 16 N.Y.2d 337, 213 N.E.2d 796, 266 N.Y.S.2d 513 (1965) and the cases discussed
below in this article.
3. Wilde, Dipeage in the Choice of Tort Law, 41 S. CALIF. L. REv. 329 (1968);
CAvRs, THE CnoicE-oF-LAw PRocEss 40-43 (1965); Cavers, Contemporary Conflicts
Law in American Perspective, 3 REcu~m DEs Couns 137-40 (1970).
 DgPE(AGE

possible disadvantage of covering situations that are beyond dispute, such

as the obvious case where the law of the forum is applied to issues of pro-
cedure and the otherwise applicable law to issues of substance. By way of
contrast, the second definition would present difficulties of application be-
cause of the uncertain line of distinction between issues of substance and
procedure. It would also not permit discussion of exceptional situations
where application of forum law to issues that are commonly deemed pro-
cedural may not be appropriate. The third definition would be too restrictive.
It would, to be sure, cover at least most of the difficult situations. By focussing
attention, however, on only a relatively narrow segment of the field, it would
tend to obscure what are believed to be the basic factors and values involved.
It seems probable that the use of d~peqage will increase in the years
ahead. Today, it is commonly stated that, with respect to each issue, the
court should seek to apply the relevant rule of the state which has the
greatest concern in the determination of that issue.4 Application of this
notion will inevitably lead to d~peqage, since cases can be expected to arise
with some frequency where not only do different states have the greatest
concern in the determination of different issues but where the relevant rules
of these states with respect to these issues are not the same. So, in a personal
injury action by a guest passenger against the driver of an automobile, the
state where the accident occurred will, usually at least, have the greatest
concern in the application of its rules relating to standards of conduct, while
the question whether the driver should enjoy some special immunity from
tort liability toward the guest may well be of greatest concern to the state
where the driver and guest are domiciled. 5 Then, if the rules of these states
with respect to these two issues happen to be different, a choice will have to
be made between them.
It also seems probable that greater use of d~peqage will be an inevitable
by-product of the development of satisfactory rules of choice of law. In
contrast to the broad rules that have been tried and found wanting, 6 the
new rules, if we are indeed to develop such rules, are likely to be narrow
in scope and large in number. 7 They will frequently be directed to, at most,
only a relatively few issues, with the result that there will be many cases
where the new rules of choice of law will require that two or more of the
issues involved should each be determined by the rule of a different state.
These newly developed rules would be subject to serious exceptions if they
were not to be applied in such cases by reason of objections to d~peqage.
4. See Babcock v. Jackson, 12 N.Y.2d 473, 481, 191 N.E.2d 279, 283, 240 N.Y.S.2d
743, 749 (1963) (per Fuld, J.).
5. See Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963).
6. As for example, the place of injury rule in torts and the place of making and the
place of performance rules in contracts.
7. See generally Reese, Choice of Law: Rules or Approach, 57 CORELL L. Rav. 315
(1972).
 COLUMBIA LAW REVIEW [Vol. 73:58

Accordingly, they could not provide courts and litigants with the desired
degree of ease of application, certainty, and predictability. In short, a willing-
ness to make a liberal use of d~peqage would seem a prerequisite to the
satisfactory development of narrow rules of choice of law.
In the pages that follow, attention will first be directed to situations
where, it is believed, the use of d~peqage is either appropriate or inappropriate.
Then there will be discussion of some uncertain problems, including the
difficult question whether d~peqage should be avoided when its use might
result in distorting the purpose of one or more of the rules applied. Finally,
consideration will be given to what will be the likely effect upon the use of
d~pe age of the further development of actual rules of choice of law. The
attempt will be made throughout to identify the factors which should guide
the courts in determining whether or not to use dpeqage. It will be submitted
that there is no single factor but rather that a number of factors should be
consulted.

I. WHEN DAPEgAGE Is APPROPRIATE

D~peqage is clearly appropriate when application of the rules of different

states to determine different issues in the same case (a) would result in
the application to each issue of the rule of the state with the greatest concern
in the determination of that issue, (b) would serve to effectuate the purpose
of each of the rules applied, and (c) would not disappoint the expectations
of the parties. D~peqage may also be appropriate when its use would serve
other choice-of-law values, such as protection of the justified expectations
of the parties, even though this might distort or threaten to distort the
purpose of one or more of the rules applied. Likewise, as will be discussed
in a concluding portion of this article, the use of d~peqage may at times be
required by a hard-and-fast rule of choice of law.
Let us start with an obvious case, one involving issues of substance and
procedure. Take an action for personal injuries arising from an accident in
state X and which is between parties domiciled in X. The suit is brought
in state Y, and one of the issues before the court is the admissibility of certain
hearsay evidence. Here it seems clear that the Y court should apply the
pertinent X rules of tort but should determine the admissibility of the evidence
in accordance with its own law. By so doing, the Y court would determine
each issue in accordance with the rule of the state with the greatest concern
in the determination of that particular issue. It would apply the X rules of
tort to conduct which took place and caused injury in X and which involved
only X parties.8 On the other hand, it would apply its own rules of evidence
for the reason that the state of the forum, simply because it is the forum, has

8. RESTATEMENT (SECOND) OF CONFLICT OF LAws § 145 (1969).

1973] DkPE(QAGE

an obvious concern in how litigation is conducted in its courts. 9 Application

in this way of the X and Y rules would serve to effectuate the policies under-
lying these rules and would not disappoint the expectations of the parties.
To the extent that they thought about the matter at all, the parties would
naturally expect to have X law applied to determine their rights and liabilities
in tort. And surely their expectations would not be disappointed by the ap-
plication of Y law to determine the admissibility of evidence, since they
would not have had rules of evidence in mind at the time when they acted in X.
Application of the Y rule of hearsay would be proper in such a case even
if the corresponding rule in X were different and even if application of this
latter rule would have led to a different ultimate result. The efficiency of
judicial administration in Y would be seriously impeded if the Y courts
were to apply any rules of evidence but their own. Likewise, application of
the Y rule of hearsay would not be unfair to the parties since, as stated above,
they did not act in reliance upon the applicability of any particular rules of
evidence. Application of the Y rule of hearsay would be proper even if the
tort rules of X and Y were also different so that application of the rule would
lead to a result that could not be obtained by the exclusive application of
either X or Y law. D~peqage does not become improper whenever its use
would lead to a result that could not be reached under the law of any one
of the states concerned. Multistate cases, after all, present different considera-
tions than do purely local ones. 10
Let us now turn to a case, inspired by Babcock v. Jackson," which in-
volves only substantive issues and where the use of d~peqage seems equally
appropriate. Assume that in state X, where both are domiciled, the defendant
invites the plaintiff to accompany him as his guest on an automobile trip
which would start in X, go through a number of neighboring states, and
eventually end in X. The plaintiff is injured in an accident in state Y, and
thereafter he brings suit in X to recover for his injuries. The accident would
not have occurred if the automobile had been equipped with a safety device
required by Y law but not by that of X. Also, the Y courts have held that
operation of an automobile without such a safety device constitutes negligence
per se. On the other hand, a driver enjoys complete immunity from tort
liability to his guest under Y law. He has no such immunity under the law
of X. It seems reasonably apparent that in this case the X court should grant
recovery to the plaintiff through the use of d6peqage even though he could
not obtain relief against the defendant through the exclusive application
of either X or Y law. Since the parties were domiciled in X, the trip was
to begin and end in X, and, we will assume in addition, the automobile was

9. RESTATEMENT (SEcOND) OF CONFLICT OF LAwvs § 122, comment a; § 127 (1969).

10. CAvRs, THE CHOIcE-oF-LAw PRocEss 40-43 (1965).
11. 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963).
 COLUMBIA LAW REVIEW [Vol. 73:58

registered in X and the defendant was insured against liability under a policy
issued in X, it seems clear that X is the state with the greatest concern in
the determination of the question whether the defendant should be immune
from tort liability to the plaintiff. And this would be true whether the purpose
of the Y guest-passenger law was to protect the driver against the ingratitude
of the guest or to protect the insurance company against the collusion of
guest and driver. On the other hand, it seems equally clear that Y is the
state of greatest concern with respect to the issue of the defendant's liability
for failure to equip the automobile with the required safety device. No
state has as great a concern as Y in the safety of its highways ;12 it was to
promote such safety that Y required the installation of the safety device and
that the Y courts held that failure to comply was negligence per se. Applica-
tion in this case of the X rule that a driver enjoys no special immunity from
tort liability to his guest and of the Y rule relating to the safety device would
further the purpose of each rule and would result in the application of the
rule of the state with the greatest concern in the determination of each issue.
Under these circumstances, the use of ddpeqage would seem proper.
Now let us take a case, inspired by Bernkrant v. Fowler,18 where protec-
tion of the expectations of the parties is a factor calling for the use of dipeqage.
Suppose that, while domiciled in state X, A orally promises B in state Y
to make provision for B in his will if B accelerates payment of the debt he
owes A. In reliance upon this promise, B, who is domiciled in Y, makes
the accelerated payment in Y. A, however, dies, still domiciled in X, without
having fulfilled his part of the bargain. A had legal capacity to enter this
contract under the law of X but not under that of Y. On the other hand,
oral contracts to make wills are enforceable under Y law but are not binding
under the X statute of frauds. It will be noted that this is also a situation
where relief could not be obtained through the exclusive application of either
X or Y law. On the other hand, much can be said in favor of granting relief
through the use of d~peqage. Application of the X rule of legal capacity
would seem required by the dictates of common sense. Such application
would seem to protect the expectations of the parties by upholding the
contract. On the other hand, application of the Y rule of legal incapacity
would appear counter-productive. It would disappoint the expectations of
B, a Y domiciliary, and since A was domiciled in X, it would be unlikely
to advance any policy of either X or y.14 The X statute of frauds presents
a more serious problem. The purpose of this statute would clearly be furthered
by its application in the present case, since it was almost certainly designed
to protect the estates of X testators against false claims. 15 For reasons
12. See id. at 483, 191 N.E.2d at 284, 240 N.Y.S.2d at 750-51.
13. 55 Cal. 2d 588, 360 P.2d 906, 12 Cal. Rptr. 266 (1961).
14. REsTATEMENT (SECOND) oF CoNFLICr OF LAws § 198, comment b (1969).
15. RESTATEMENT (SECOND) OF CONFLIcT Or LAWS § 141, comments b and '(1969).
1973] DgPE( AGE

stated by Justice Traynor in Bernkrant v. Fowler, however, application of

the statute in a case such as the present would be of dubious wisdom. Here
the promise was made in another state, under whose law it was en-
forceable, to a person domiciled in that state and was to be performed there
by him. At the time the promise was made, there was no way of
telling where A would die domiciled. Under such circumstances, a rule
calling for application of the statute of frauds of the state where the
promisor was domiciled at the time of his death would make uncertain the
legal effectiveness of many contracts to make a will.1 6 Much can therefore
be said in such a case for subordinating furtherance of the purpose of the
X statute of frauds in favor of protecting the expectations of the parties.
This then is an illustration of a situation where the use of d6peqage to protect
the expectations of the parties by upholding a contract would seem to be
justified even though this is done at the price of failing to further the purpose
of an invalidating ruie of an interested state. And this might well be true
even though the X statute of frauds and the X rule of capacity were found
to be somehow related so that application of one rule without the other might
distort the purpose of both.
Further experience may indicate that there are other basic values, in
addition to the protection of the expectations of the parties, which would
justify the use of d~peqage to avoid an otherwise applicable rule of an
interested state. For example, many of the recent choice-of-law decisions
in the field of torts can perhaps best be explained as stemming from a desire
on the part of the courts in a personal injury action to apply the rule of a
state which would afford relief to the plaintiff.17 Perhaps the award of com-
pensation will come to be considered as basic a value in some areas of
torts as is the protection of the expectations of the parties in contracts' 8 and
trusts.1 If so, the courts may be expected to use d~pe~age to permit ap-
plication of a rule that would grant relief.

II. WHEN DtPEgAGE IS INAPPROPRIATE

D6pe~age is, of course, inappropriate when it leads to the application of

a rule that cannot constitutionally be applied, as, for example, the rule of
a state that lacks legislative jurisdiction. 20 So, in a suit brought by one New
Yorker against another New Yorker to recover for personal injuries suffered
in an English automobile accident, it would be unconstitutional for a New
York court to apply the New York rule that one must drive on the right
16. 55 Cal. 2d at 595-96, 360 P.2d at 910, 12 Cal. Rptr. at 270.
17. See, e.g., Tooker v. Lopez, 24 N.Y.2d 569, 249 N.E.2d 394, 301 N.Y.S.2d 519
(1969) ; Miller v. Miller, 22 N.Y.2d 12, 237 N.E.2d 877, 289 N.Y.S.2d 734 (1968).
18. RESTATEMENT (SEcOND) OF CONFLICT OF LAWs § 188, comment b (1969).
19. RESTATEMENT (SEcOND) OF CONFLICT OF LAWs § 269, comments f-g; § 270, com-
ments b-d (1969).
20. Home Insurance Co. v. Dick, 281 U.S. 397 (1930).
 COLUMBIA LAW REVIEW [Vol. 73:58

hand side of the road even though the court applied English law to determine
all other substantive issues. It would also be inappropriate for a court to
apply d~peqage in a way that (a) would result in the application to each
issue of the rule of a state that has little, or no, interest in the determination
of that issue and (b) would not serve to effectuate the purpose of each of
the rules applied.
Let us take as an example a variation of Babcock v. Jackson. 21 Suppose
that X is the state where the driver and guest are domiciled and where the
automobile trip is to start and end, that Y is the state where the accident
occurs and the guest is injured, that under X law the driver enjoys immunity
from tort liability to the guest and it is negligence per se to drive at more
than 50 miles per hour, and that Y has no guest-passenger statute and no
rule declaring it negligence per se to drive over a designated rate of speed.
Clearly, it would be inappropriate and, with respect to the rule as to speed
probably unconstitutional as well, for a court to find for the plaintiff by
applying the Y rule as to the liability of a driver to a guest and the X rule as
to speed, assuming that the accident occurred at a time when the auto-
mobile was being driven at a speed in excess of 50 miles per hour. Almost
surely X has a greater interest than Y in the question whether the driver
should enjoy a special immunity from tort liability to the guest. 22 Contrari-
wise, Y has a greater, and probably exclusive, interest in the question of the
speed at which the automobile should be driven by Y.
DI6peqage is also likely to be inappropriate when it would serve to defeat
the expectations of the parties. An example is the hypothetical case mentioned
immediately above. Almost surely the driver, if he had thought about the
matter at all, would expect to have the Y rules of speed, rather than those
of X, applied to determine the propriety of his conduct in Y. Quite possibly
indeed, he would actually have been aware of the Y rule as to speed and
would have shaped his conduct accordingly. Other examples of situations
where the use of d~peqage would be suspect for similar reasons is where it
would lead to the invalidation of a contract or a trust.
It will be complained that these hypotheticals are all so obvious that
they border on being worthless. That they are obvious is freely admitted.
The difficulty is that it is hard to imagine situations less obvious than these
where the use of d~peqage would surely be inappropriate. Situations of greater
uncertainty, where much will depend upon the precise facts and upon one's
particular philosophy of choice of law, will now be discussed. Thereafter,
attention will be given to the likely effect upon d~peqage of the development
of hard-and-fast rules of choice of law.

21. 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963).
22. Arbuthnot v. Allbright, 35 App.Div.2d 315, 316 N.Y.S.2d 391 (3d Dep't 1970),
distinguishing Kell v. Henderson, 26 App.Div.2d 595, 270 N.Y.S.2d 552 (3d Dep't 1966).
1973] DgPEgAGE

III. MoRE UNCERTAIN SITUATIONS

One question concerning d~pegage has consistently been raised in the

sparse writing on the subject. This is whether its use must of necessity be
inappropriate whenever it would distort or would threaten to distort the
purpose of one or more of the rules applied. Such distortion may occur in
two situations. It may occur where only part of a rule is applied. It may also
occur where application of only one of two or more related rules leads to a
result that is inconsistent with the purpose of the rules combined. Take, for
example, the case of Slater v. Mexican National R.R. Co.,23 which involved
an action brought in a federal court sitting in Texas to recover for the wrong-
ful death in Mexico of an employee of the defendant railroad. The employee
and his family were domiciled in Texas, while the defendant railroad was
incorporated in Colorado and operated a line from Texas to Mexico City.
A lump sum judgment was rendered for the plaintiffs in accordance with the
Texas practice, although the proper form of relief under Mexican law
would have been a decree calling for periodical payments subject to modifica-
tion in the light of-changed circumstances. This judgment was reversed by
the Supreme Court on the ground that, as stated by Justice Holmes, it
would be "unjust to allow a plaintiff to come here absolutely depending on the
foreign law for the foundation of his case, and yet to deny the defendant
24
the benefit of whatever limitations on his liability that law would impose."
This, of course, was the result required by the vested rights doctrine of
which Justice Holmes was one of the foremost exponents. But this doctrine
is now in ill repute, and the question is whether it would be inappropriate
today for a Texas court to give the plaintiffs a right of action for wrongful
death under Mexican law and yet apply the Texas measure of damages. To do
so might possibly distort the purpose of the Mexican rule. It could be urged,
on the other hand, that Texas, the state of domicile of the deceased and
his next of kin, has a greater concern than Mexico in the amount and form
of relief, and that application of the Texas rule of damages would not be
unfair to the defendant since it could hardly have acted in reliance upon the
Mexican rule and had at least as close a connection with Texas as with Mexico.
One thing is clear. The use of d6pegage may be constitutionally permissible
in a situation where it would distort the purpose of a rule that is applied.
So much is demonstrated by Tennessee Coal, Iron & R. Co. v. George.2 5 That
case involved an action brought in Georgia by an employee against his em-
ployer to recover damages on account of injuries suffered in Alabama in
the course of his employment. The action was based on an Alabama statute
which made an employer liable to his employee for injuries "caused by

23. 194 U.S. 120 (1904).

24. Id. at 126.
25. 233 U.S. 354 (1914).
 COLUMBIA LAW REVIEW [Vol. 73:58

reason of any defect in the condition of the ways, works, machinery or

plant" of the employer. 26 The defendant filed a plea in abatement on the
ground that another Alabama statute expressly provided that all actions in
the above-mentioned statute "must be brought in a court of competent jurisdic-
tion within the State of Alabama and not elsewhere."' 27 A demurrer to this
plea was sustained by the Georgia court, and the Supreme Court affirmed,
stating that "venue is no part of the right; and a State cannot create a
transitory cause of action and at the same time destroy the right to sue on
that transitory cause of action in any court having jurisdiction." 28 To this
extent, at least, distortion of the purpose of a statute is permissible. In the
course of its opinion, the Supreme Court did suggest, however, that there
are some constitutional restrictions upon a court's power to distort by stating
that full faith and credit must be given "to all those substantial provisions of
the statute which inhered in the cause of action or which name conditions on
which the right to sue depend." 29 Doubt upon the continued viability of this
statement is cast by the Supreme Court's more recent decision in Crider v.
Zurich Ins. Co.,30 which held that Alabama was privileged to entertain an
action based on the Georgia Workmen's Compensation Act even though
Georgia decisions were to the effect that relief under this Act could be af-
forded only by the Georgia Compensation Board. The rule of the George
case was said to have been "eroded" to the extent that it would preclude the
courts of a second state from granting relief that differed from the "special
remedy" which was "coupled" with the provisions for the liability on which
31
the action was based.
Apart from constitutional compulsion, the question whether the use of
d6peqage is inappropriate whenever it would distort or threaten to distort the
purpose of a rule can be answered only in the light of what one conceives
to be the true objective of the process. The answer will certainly be in the
affirmative if one believes that the only objective of d6pe age is to advance
the purposes of the rules applied. 32 The answer may well be different if one
believes to the contrary that the objective should be to arrive at the best
possible accommodation of all the factors that underlie choice of law. These
factors, as stated in Section 6 of the Restatement (Second) of Conflict of
Laws, are the needs of the interstate and international systems, the relevant
policies of the forum, the relevant policies of other interested states and of
their relative degree of concern in the determination of the particular issue,
the protection of justified expectations, the basic policies underlying the

26. Id. at 358, quoting Alabama Code of 1907, § 3910.

27. Id., quoting defendant's plea.
28. Id. at 360.
29. Id.
30. 380 U.S. 39 (1965).
31. Id. at 44.
32. Wilde, supranote 3, at 358.
1973] D9PEqAGE

particular field of law, certainty, predictability and uniformity of result, and

ease in the determination and application of the law to be applied. Accord-
ing to this latter view, the fact that the use of d~peqage would distort or
threaten to distort the purpose of one of the rules applied is not of itself
controlling. Dpe~age should be used, even in such a situation, if its use would
be supported by at least the majority of the other above-mentioned factors.
The problem will become clearer after some cases have been discussed.
In Maryland Casualty Co. v. Jacek,33 a New Jersey wife was injured through
the negligence of her New Jersey husband in an automobile accident in New
York. Under New Jersey law, spouses could not sue each other in tort. In
New York, the rule had been changed to permit such suits, but simultaneously
the New York Insurance Law had been amended to provide that "[n]o
policy or contract shall be deemed to insure against any liability of an in-
sured because of death of or injuries to his or her spouse . . .unless express
provision . . . is included in the policy."3 4 The husband's insurance policy,
which had been issued to him in New Jersey, contained no such provision,
and accordingly the insurer brought suit for a declaratory judgment that
its policy did not cover liability for the wife's injuries. Applying d~peqage,
the court granted judgment against the insurer. The law of New York, the
place of the accident, was applied to hold that the husband was liable in tort
to the wife, while the law of New Jersey, the place of making of the insurance
contract, was applied to determine the coverage. This result could not have
been reached through the exclusive application of either New York or
New Jersey law and, arguably, can be said to have distorted the purpose of
the relevant rule of each state. Contrary to the New Jersey rule, the husband
was held liable to the wife, and contrary to the New York rule, the insurance
policy was held to cover the liability.
It is submitted, nevertheless, that the decision was correct. A contrary
result might well have disappointed the legitimate expectations of the husband.
The policy, according to its terms, insured him without qualification against
any liability he might incur through the negligent operation of the automobile.
And he did incur such liability to his wife under New York law, which was
the law made applicable by the New Jersey choice-of-law rule. Furthermore
it is by no means certain that the court's holding that the policy covered this
liability distorted the purpose of either the New Jersey or the New York rule.
Even the most arduous research would probably not have revealed with any
degree of certainty the purpose of the New Jersey rule of interspousal im-
munity. The origins of this decisional rule can be traced back to early
common law. Reasons frequently advanced to explain its existence are the
common law doctrines of the legal identity of the spouses, the desire to

33. 156 F. Supp. 43 (D.N.J. 1957).

34. N.Y. INS. LAW § 167 (McKinney 1966).
 COLUMBIA LAW REVIEW [Vol. 73:58

foster and preserve marital harmony, and more recently, the desire to protect
insurance companies from false claims.8 5 Only the last of these purposes,
if indeed it was a purpose, of the rule would be frustrated by allowing re-
covery under the policy. In any event, some indication that the rule itself
was not considered of overwhelming importance by the New Jersey courts
can be gleaned from the fact that they would not have applied it to determine
the rights and liabilities of New Jersey spouses who were involved in an
out-of-state accident. Without question, the New Jersey courts would have
held that the policy covered the husband's liability to his wife if the accident
had occurred in a state, such as Connecticut, which has abolished inter-
spousal immunity and does not qualify, as does New York, the insurance
coverage with respect to this liability.3 6 By way of contrast to the New Jersey
rule, the purpose of the New York statute is clearly to protect the insurer
against collusion on the part of the spouses. But it is by no means clear,
and indeed seems highly doubtful, that the statute was intended to apply
to insurance policies issued to non-New Yorkers outside of New York. Under
the circumstances, it is thought that the court correctly determined the coverage
of the policy in accordance with the literal meaning of its provisions. By
doing so, the court gave effect to the choice-of-law policy favoring protection
of the expectation of the parties, and it is by no means clear that the respective
purposes of the relevant state rules were seriously distorted if indeed they
were distorted at all.
As is well illustrated by the Jacek case, it is often difficult to ascertain
the purpose or purposes of a rule. It is often even more difficult to determine
whether this purpose or these purposes would be distorted by the application
or non-application of the rule in a case involving multistate elements. Where
such uncertainty exists, it may well be wise to subordinate the danger of
creating distortion to the achievement through the use of d6peqage of other
choice-of-law values. Lillegraven v. Tengs31 is another case in point. Plain-
tiff, while a passenger on an automobile trip from Seattle to Alaska, sustained
injury in an accident in British Columbia. Rather than seeking relief against
the driver, she commenced an action in Alaska against the owner under
British Columbia's Motor Vehicle Act, which made the owner liable for
the torts of anyone driving his automobile with his consent. Alaska had no
such statute. The action was brought within Alaska's two year statute of
limitations but beyond the one year period of British Columbia. This latter
provision was contained in the same statute which imposed liability upon
the owner, and he naturally contended that it should be held to qualify the
plaintiff's right of action. This contention was rejected by the Alaska court
35. RESTATEMENT (SECOND) OF CoNfLict OF LAWs § 169, comment b (1969).
36. Landers v. Landers, 153 Conn. 303, 216 A.2d 183 (1966); cf. Mertz v. Mertz,
271 N.Y. 466, 3 N.E.2d 597 (1936).
37. 375 P.2d 139 (Alas. 1962).
1973] D,*PE AGE 69

on the ground that the act in question contained a number of provisions, and
there was no reason to suppose that the British Columbia Legislature had
given "special consideration" to the one-year provision "upon the particular
right sought to be enforced . . . , as distinguished from other rights to which
the act was also applicable.13 8 Accordingly, the Alaska court concluded that
the one year provision should be treated as an ordinary statute of limitations
and that there was "no good reason" why Alaska's policy as to limitations
should give way to the differing policy of British Columbia.
It is not entirely clear that the Alaska court distorted the purpose of
the British Columbia statute by holding the owner liable without applying
the one year provision contained in the same statute. There was no distor-
tion if the only purpose of the one year provision was to protect the British
Columbia courts against the danger of being misled by stale testimony;
there was distortion if the provision was intended solely or partially to protect
the parties. The Alaska court assumed, without having made an actual inquiry,
that the statute had the latter purpose. Even so, the distortion of purpose was
probably no greater than in any case where, applying the usual rule that
forum law governs issues of limitation, a court entertains suit on a right of
action which arises under the law of another state and is barred by that
state's statute of limitations. 3 9 The decision can further be justified on the
ground that Alaska, being the domicile of both the plaintiff and defendant,
was the state with the greatest concern in questions of fairness to them.
Let us now turn to Kilberg v. Northeast Airlines, Inc. 40 where distortion
was clearly present. In that case the decedent, a New York domiciliary, had
purchased in New York a ticket from the defendant airline, which is in-
corporated in Massachusetts, for transportation from New York to Nan-
tucket, Massachusetts. The decedent was killed when the plane crashed in
Nantucket while attempting to land. An action for the recovery of damages
was brought in New York on the Massachusetts wrongful death statute,
which, as it stood at that time, limited recovery against a common carrier to
not less than $2,000 or more than $15,000. By a majority vote, the New
York Court of Appeals held that on the facts of the case the Massachusetts
limitation on damages should not be applied. To hold otherwise, in the view
of the court, would violate New York public policy, since the New York
Constitution expressly forbade a limitation on the amount of recovery for
wrongful death. The result reached, although not necessarily the reasoning
employed, has been generally applauded and has been declared constitutional
by the federal Court of Appeals for the Second Circuit in Pearson v. Northeast
Airlines, Inc.,41 a case arising out of the same airplane crash. In this latter
38. Id. at 141.
39. RESTATEMENT (SEcOND) OF CONFLICT OF LAWs § 142 (1969).
40. 9 N.Y2d 34, 172 N.E.2d 526, 211 N.Y.S.2d 133 (1961).
41. 309 F.2d 553 (2d Cir. 1962).
 COLUMBIA LAW REVIEW [Vol. 73:58

case, however, Judge Friendly dissented. He said, at the outset, that it

would have been constitutional for New York, in view of its close contacts
with the case, to apply its own wrongful death statute. In his view, however,
New York could not under full faith and credit apply the wrongful death
statute of Massachusetts to determine whether the defendant was liable for
the death and at the same time refuse to apply the limitation contained in
that statute as to the amount of recovery. He stated:
... The terms and conditions of a claim created by statute inevi-
tably reflect the legislature's balancing of those considerations that
favor and of those that oppose the imposition of liability. The legisla-
ture may be quite unwilling to create the claim on terms allowing it to
be enforced without limit of amount .... The Full Faith and Credit
Clause insures that . . . the legislature creating the claim need not
have to weigh the risk that the courts of sister states looking to its
"public acts" as a source of rights will disregard substantial conditions
which it has imposed. . . . This consideration is inapplicable to in-
stances where the forum, looking solely to its own substantive law,
wholly disregards that of the sister state. . . . True, conduct in the
enacting state has been given consequences different from what the
legislators of that state desired; but that is the inevitable result of
the duplicate law-making jurisdiction that can never be wholly
avoided even in our federal system .... 42
Clearly, there was distortion in Kilberg and Pearson, since it is obvious
that the Massachusetts legislature intended that a right of action for wrongful
death should be subject to severe limitations upon the amount of recovery.
Indeed, it may well be that these two cases involved the rankest sort of
distortion that to date has appeared in the books. Nevertheless, it is believed
that the result reached was correct. In view of its contacts with the case,
New York would have been empowered to apply its own wrongful death
statute to determine the rights of the parties. Why then could it not follow
a more moderate course and apply only its rule of damages ?4 Also, New
York had at least as great a concern as Massachusetts in the measure of
recovery, since in both Kilberg and Pearson the decedents were domiciled
in New York, the trip started in New York, and the defendant, although
incorporated in Massachusetts, did considerable business in New York.
Kilberg and Pearson have still wider implications. The purpose of the
Massachusetts statute involved in these cases was, at the very least, to limit
recovery for a wrongful death which occurred in Massachusetts and which
was caused by a Massachusetts defendant. This purpose would be frustrated,
as it was in these cases, by application of the Massachusetts statute to provide
the right of action and of New York law to determine the measure of recovery.
This purpose would have been equally frustrated, however, by the exclusive
42. Id. at 565-66.
43. Cavers, Contemporary Conflicts Law in American Perspective, 3 RECUEIL DES
CouaRs 75, 139 (1970).
1973] DtPEgAGE

application of New York's wrongful death statute to provide unlimited

recovery. In other words, these cases teach us that frustration of purpose
can be caused in equal degree either by application of only one part of a rule,
or of one of two or more related rules, or by the entire disregard of the rule
and the application of the rule of some other state in its stead. To be sure,
disregard of the rule of one state in favor of the rule of another is the "in-
evitable result," to use Judge Friendly's term, of the fact that there are
many multistate cases where not only could the rules of two or more states
constitutionally be applied to determine a particular issue, but where the
purpose of each of these rules would be furthered by that rule's application.
Frustration of purpose is thus an inevitable by-product of choice of law.
The problem involved is essentially the same whether this frustration results
from applying a rule in a way that distorts its purpose or from simply failing
to apply the rule. Whether it is proper through the use of d6peqage to distort
the purpose of a rule, either by applying only part of the rule or by applying
only one of two or more related rules, should be determined in the light of
the same factors as are considered by the courts in deciding whether to apply
the rule of one state rather than the rule of another.
What has been said above may be made clearer by discussing a variation
of Kilberg and Pearson. Let us assume a factual situation identical with that
involved in these cases except that New York did not have a wrongful death
statute of its own. Would it be improper in such a case for a New York
court to base an action for wrongful death on the Massachusetts statute but
to disregard that statute's limitation upon the amount of recovery? The answer
is thought clearly to be in the affirmative, but not simply on the ground that
the purpose of the Massachusetts statute would thereby be distorted; such
distortion was equally present in the actual Kilberg and Pearsoncases, which
are thought to have been correctly decided. Rather, the court's error would
stem in part from the fact that its distortion of the purpose of the Massachusetts
staiute was not counterbalanced by other choice-of-law factors. Since it is
assumed in the case posed that New York has no wrongful death statute, it
is difficult to believe that any significant New York policy would be advanced
by allowing unlimited recovery in this particular action for wrongful death.
Likewise, allowance of such unlimited recovery would not be supported by
any other choice-of-law factor. Surely, it would not seem to protect any
legitimate expectations of the parties, assuming, as seems unlikely, that they
had any expectations on the point. Surely also, this combination of the
Massachusetts rule, in a way that would distort the purpose of that rule, with
a New York rule of unlimited recovery, which had been fashioned for the
occasion, would not seem to further the choice-of-law values of certainty,
predictability and uniformity of result, and ease in the determination and
application of the rule to be applied.
 COLUMBIA LAW REVIEW[ [Vol. 73:58

Such a decision by the New York court would also involve far more than
an abuse of d~peqage. In the case posed, New York has no wrongful death
statute of its own and hence no rule governing the measure of recovery for
wrongful death. In order to grant unlimited recovery to the plaintiff, the
court would have to do more than apply a New York rule to determine one
issue and a Massachusetts rule to determine another. Instead, the court would
have to invent a New York rule of damages for wrongful death to apply in
the particular case. By so doing, the court would have traveled far beyond
the boundaries of d~peqage. It would not have confined itself to "picking-and-
choosing" among the existing rules of two or more states. It would have
created a new substantive rule of damages without any clear basis in policy
for doing so.
Another hypothetical case may serve to drive this point home. Suppose
that state X imposes strict liability upon airlines but limits the permissible
amount of recovery. State Y, on the other hand, permits unlimited recovery
but only on the basis of negligence or of intentional misconduct. 44 Under these
circumstances, would it be appropriate for a Y court to permit unlimited
recovery in an action brought to recover for injuries suffered by a Y resident
in an airplane crash in X which occurred without any fault on the part of the
defendant airline? Clearly, the answer must be in the negative. One source
of objection might be that such a combination of the liability rule of X and the
recovery rule of Y would distort the purposes of both laws, since neither law
permits unlimited recovery against a defendant who is without fault. A far
more serious objection is that the Y court would not merely be picking and
choosing among existing rules. Rather, it would be creating a new rule of
substantive law for the occasion; namnely, a Y rule permitting unlimited
recovery in the case of strict liability. Creation of a new rule for the purpose
of a single case is something quite different and far more likely to be objection-
able than the use of d6peqage.
We now turn to a situation where the use of d6peqage should be proper
although there might be some distortion of the purpose of one of the rules
applied. Let us assume that A and B, driver and guest-passenger who are both
domiciled in state X, are involved in an accident in state Y in which B is killed.
The accident would not have occurred if the automobile had been equipped with
a safety device required by Y law but not by that of X. The Y courts have also
held that failure to install this device is negligence per se. Both X and Y have
wrongful death statutes; the Y statute imposes limits upon the amount of
recovery while the X statute does not. Would it be appropriate under these
circumstances for an X court in a wrongful death action to hold A liable
under the Y rule but to permit unlimited recovery under the rule of X ?
In contrast to the Kilberg and Pearsoncases, a holding to this effect could
not be justified on the ground that the identical result could have been attained
44. This hypothetical case is posed in Wilde, supra note 3, at 358.
19731 D.9PEgAGE

through the exclusive application of the substantive law of X. Also, such a

holding would distort the purpose of the Y wrongful death statute if the damage
limitation provision of that statute was in any way related to the rule imposing
strict liability for injuries resulting from the abuse of the safety device. Never-
theless, X would seem to be the state with the greatest concern in the measure
of recovery, since all parties were domiciled there. Application of X law to
determine this issue would surely not disappoint the expectations of the parties
and, assuming at least that the trip began and was to end in X, might be thought
to be in line with these expectations. Even more important, application of X
law might further the choice-of-law values of uniformity, predictability, and
ease of application. These values can best be served by the formulation of
choice-of-law rules. And application in this case of the X rule relating to the
measure of recovery might be an initial step towards the formulation and
ultimate acceptance of a rule that the law of the common domicile of the parties
shall be applied to determine the measure of recovery for wrongful death, pro-
vided, at least, that this law would allow for a greater recovery than the law of
the state of conduct and injury. To be sure, the same values would be attained
by the rigid application to all issues of the law of the state of conduct and injury,
but recent cases make it clear that the courts are unwilling to abide by so
all-embracing a rule. The rule suggested above might work well in practice.
By way of final example, let us take a case where it is thought that the use
of d6peqage would be inappropriate. Assume that in the hypothetical mentioned
immediately above, the wrongful death statute of state X permitted recovery
only by the spouse and children of the deceased, while the Y statute extended
its benefits to a wider group of beneficiaries. Clearly, in such a situation, it
would be improper for an X court to grant recovery to some other relative
under the Y statute and at the same time to allow unlimited recovery of
damages under its own law. By so doing, the X court would be distorting the
purpose of both wrongful death statutes involved and would not be advancing
other choice-of-law values.
To reiterate, a number of factors are involved in choice of law. One of these
factors is furtherance of the purposes underlying the relevant rules of the states
concerned. This is an important factor, but one that will on occasion be out-
weighed by the rest. In short, d6peqage should not always be avoided simply
because its use would distort or threaten to distort the purpose of one of the
rules applied. In particular, the use of d~peqage may be required, even at the
price of distortion, by a choice-of-law rule. This is the final point to which we
now turn.

IV. THE IMPACT OF CiiOICE-OF-LAW RULES

One of the basic questions in choice of law today is whether rules are
desirable. 45 There is general agreement that many of the old rules, particularly
45. See generally Reese, supra note 7.
 COLUMBIA LAW REVIEW [Vol. 73:58

those in torts and contracts, have worked badly in practice and should now be
abandoned. For the moment, all that can frequently be done is to attempt in
each case to arrive at the best accommodation possible of the several choice-of-
law factors. The question is whether the courts should seek to press on from
this stage and to develop new rules of choice of law as soon as they feel
competent to do so in the light of accumulated experience. In all probability,
these rules-if indeed we are to have such rules-will be far more numerous
and far narrower in scope than the old. Frequently, they will be directed to a
single issue or to a small group of related issues. This would be a natural result
of today's tendency to make choice of the applicable law depend upon the precise
issue involved.
Choice-of-law rules directed to a single issue will inevitably lead to
d6peqage, namely to situations where the rules of different states are applied
to determine different issues in the same case. When a choice-of-law rule calls
for application of a given rule, that rule should usually be applied even at the
risk of distortion. To do otherwise would deprive the rule of certainty of
application, which is a vital attribute of a rule of law. Of course, the choice-of-
law rule in question must be correctly interpreted and correctly applied. Where
it would appear to call for application of a rule in a way that would seriously
distort the purpose of that rule, there is cause for hesitation and reconsidera-
tion. Perhaps it will finally be concluded that, properly interpreted, the choice-
of-law rule in question does not require such result.
Illustrative of what has just been said are Maryland Casualty Co. v.
Jacek4" and Lillegraven v. Tengs.47 These cases have already been discussed,
and it was concluded that probably both were decided correctly, although in
each the purpose of one of the rules applied may have been distorted. The
correctness of these decisions becomes clearer when they are considered from
the standpoint of choice-of-law rules. It will be recalled that the question in
Jacek was whether the husband's insurance policy covered his liability to his
wife. The accident had occurred in New York, under whose law the husband
was liable although he would not be so in New Jersey, the state where the
spouses were domiciled. Under New York law, however, the policy would
not cover this particular liability, since it did not contain an express provision
to this effect. The court held that the husband was liable to the wife by applica-
tion of New York law, and that the policy covered this liability by application
of the law of New Jersey. The holding that New Jersey law governed the ques-
tion of policy coverage is supported by Section 193 of the Restatement
(Second) of Conflict of Laws, which provides that questions involving a policy
of liability insurance should usually be determined by "the local law of the

46. 156 F. Supp. 43 (D.N.J. 1957).

47. 375 P2d 139 (Alas. 1962).
19731 D9PEgAGE

state which the parties understood was to be the principal location of the insured
risk during the term of the policy." In Jacek, this state was New Jersey, since
undoubtedly the automobile was principally garaged there. A court which
adhered to the rule of Section 193 would have no trouble with a case like
Jacek. It would apply the rule designated in the Section, namely that of New
Jersey, with little regard to the question whether by failing to apply the relevant
insurance rule of New York it was distorting the purpose of the New York
rule which it did apply, namely the rule that a husband is liable for tortious
injuries caused his wife. If the court were to do otherwise, it would destroy
the integrity and certainty of application of its choice-of-law rule.
In Lillegraven v. Tengs, the Alaska court applied its own statute of limita-
tions to hold timely an action based on a British Columbia statute and time-
barred by a provision contained in that same statute. The plaintiff would have
had no right of action against the defendant under Alaska law. In reaching its
decision, the court relied upon the well-established choice-of-law rule that
forum statutes of limitation are to be applied, 48 except where the action "is
barred in the state of the otherwise applicable law by a statute of limitations
which bars the right and not merely the remedy. ' 49 It was the court's opinion
that the British Columbia statute was not of the latter type. Doubt may well
be expressed with respect to the wisdom of the rule that the forum will usually
apply its own statute of limitations even in a case where its period is longer than
that of the state of the otherwise applicable law.50 But the rule, so long as it
persists, should be applied.

CONCLUSION

D6peqage, as used in this paper, is the process of applying the rules of

different states to determine different issues in the same case. Use of this
process would seem to be an integral part of the modem approach to choice of
law which frequently requires that choice of the applicable law should depend
upon the precise issue involved. Sometimes, the use of d6peqage will lead to a
result that could not be obtained by the exclusive application of the law of
one of the interested states. This presents no difficulty, except in a situation
where the purpose of one or more of the rules applied would be distorted. Even
here, however, the use of dipeqage may be appropriate if it would further other
important choice-of-law factors or values. The use of d6peqage is particularly
likely to be appropriate under these circumstances when required by an actual
rule of choice of law.
48.RESTATEMENT (SECOND) OF CONFLICT OF LAws § 142 (1969).
49. RESTATEMENT (SECOND) OF CONFLICT OF LAWs § 143 (1969).
50. The rule has been called "an accident of history." See Bournias v. Atlantic
Maritime Co., 220 F.2d 152, 154 (2d Cir. 1955) (per Harlan, J.).