Choice of law in cross-border torts: Why plaintiffs win and should

Hastings Law Journal

Volumn 61, Issue 2, 2009, Pages 337-412

  Symeonides, Symeon C ^a,b  

^a WILLAMETTE UNIVERSITY   (United States)

^b ARISTOTLE UNIVERSITY OF THESSALONIKI   (Greece)

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EID: 77749330306     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (443)

1. Any tort that can be committed from a distance such as environmental pollution, defamation, fraud, invasion of privacy, and products liability, can be a cross-border tort if the injurious conduct and resulting injury occur in different states.
2. From 2000 to 2004, the number of complaints involving fraud across U.S. borders has grown from 12,208 to 61,744, an increase of 506%. These numbers do not include fraud across state borders within the United States. See FED. TRADE COMM'N, CONSUMER SENTINEL: CROSS-BORDER FRAUD TRENDS, JANUARY-DECEMBER 2004, at 4 (2005), available at http://www.ftc.gov/bcp/edu/microsites/ crossborder/PDFs/Cross-BorderCY-2004.pdf. "[C]onsumers in the U.S. and other countries lose billions of dollars each year to telemarketers operating from 'boiler rooms' across the border who pitch bogus products, services and investments. They also lose money to Internet scam artists who operate anonymously from places outside the U.S." Federal Trade Commission-Cross Border Fraud, http://www.ftc.gov/crossborder/ (last visited Nov. 17, 2009).
3. In Dow Jones & Co. v. Gutnick (2002) 210 C.L.R. 575, 606-08 (Austl.), the High Court of Australia held that Australian courts had jurisdiction and could apply Australian law in a defamation action brought by an Australian citizen against a U.S. publisher for allegedly-defamatory remarks contained in an online publication (Barron's Online) posted at a New York website. Because of its inherently transnational nature, the internet can generate many cross-border torts, like the ones mentioned in the previous note, and also provides an easier conduit for defamation. Indeed, it has been characterized as "a defamation prone zone." See Lilian Edwards, Defamation and the Internet, in LAW AND THE INTERNET: REGULATING CYBERSPACE 183, 184 (Lilian Edwards & Charlotte Waelde eds., 1997), available at http://www.law.ed.ac.uk/it& law/cio-main.htm; see also id. at 183 ("Because of the international connectivity of the Internet, its speedy transmission of huge amounts of data simultaneously to multiple destinations, and general lack of respect for national borders, it is extremely easy for an individual to make a defamatory comment via a computer situated in [one country] attached to the Internet, which can then be read by thousands if not millions of people similarly equipped in multiple other national jurisdictions-where... the law of, and defences to, defamation may be very different....").
4. 176 N.E.2d 761, 766 (Ill. 1961).
5. Id. at 764.
6. 480 U.S. 102 (1987) (product liability action against a Japanese defendant who manufactured a valve assembly in Japan and sold it to a Taiwanese manufacturer who incorporated the valve into a motorcycle tire and sold it in California, where it exploded and injured the plaintiff).
7. See infra Part I.A.
8. 176 N.E.2d at 766.
9. 191 N.E.2d 279 (N.Y. 1963). For an extensive documentation and discussion of this movement, see SYMEON C. SYMEONIDES, THE AMERICAN CHOICE-OF-LAW REVOLUTION: PAST, PRESENT AND FUTURE (2006) [hereinafter SYMEONIDES, CHOICE-OF-LAW REVOLUTION], and see also EUGENE F. SCOLES, PETER HAY, PATRICK J. BORCHERS, & SYMEON C. SYMEONIDES, CONFLICT OF LAWS 18-105 (4th ed. 2004).
10. See infra Part I.B.
11. See infra Part I.B.
12. RUSSELL J. WEINTRAUB, COMMENTARY ON THE CONFLICT OF LAWS 347 (4th ed. 2001).
13. For additional limitations to the scope of this Article, see infra notes 65-70 and accompanying text. The lex loci delicti rule continues to be followed in the following ten states, with varying degrees of commitment: Alabama, Georgia, Kansas, Maryland, New Mexico, North Carolina, South Carolina, Virginia, West Virginia, and Wyoming. See SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 50-62; Symeon C. Symeonides, Choice of Law in the American Courts in 2008: Twenty-Second Annual Survey, 57 AM. J. COMP. L. 269, 279-80 (2009) [hereinafter Symeonides, Choice of Law in American Courts 2008]. Under this rule, courts invariably apply the law of the state of injury, regardless of the content of that law or any other factors. See infra Part I.A.
14. For the last twenty years, this Author has been conducting an annual survey of choice-of-law cases for the Section of Conflict of Laws of the Association of American Law Schools, a task which entails reading more than a thousand cases per year. The surveys have been published in volumes 37 through 57 of the American Journal of Comparative Law. See Symeon C. Symeonides, Choice of Law in the American Courts in 1088, 37 AM. J. COMP. L. 457 (1989); P. John Kozyris & Symeon C. Symeonides, Choice of Law in the American Courts in 1989: An Overview, 38 AM. J. COMP. L. 601 (1990); Symeon C. Symeonides, Choice of Law in the American Courts in 1093 (and in the Six Previous Years), 42 AM. J. COMP. L. 599 (1994); Symeon C. Symeonides, Choice of Law in the American Courts in 1904: A View "From the Trenches," 43 AM. J. COMP. L. I (1995); Symeon C. Symeonides, Choice of Law in the American Courts in 1995: A Year in Review, 44 AM. J. COMP. L. 181 (1996); Symeon C. Symeonides, Choice of Law in the American Courts in 1996: Tenth Annual Survey, 45 AM. J. COMP. L. 447 (1997); Symeon C. Symeonides, Choice of Law in the American Courts in 1997, 46 AM. J. COMP. L 233 (1998); Symeon C. Symeonides, Choice of Law in the American Courts in 1998: Twelfth Annual Survey, 47 AM. J. COMP. L. 327 (1999); Symeon C. Symeonides, Choice of Law in the American Courts in 1999: One More Year, 48 AM. J. COMP. L. 143 (2000); Symeon C. Symeonides, Choice of Law in the American Courts in 2000: As the Century Turns, 49 AM. J. COMP. L. I (2001); Symeon C Symeonides, Choice of Law in the American Courts in 2001: Fifteenth Annual Survey, 50 AM. J. COMP. L. I (2002); Symeon C. Symeonides, Choice of Law in the American Courts in 2002: Sixteenth Annual Survey, 51 AM. J. COMP. L. I (2003); Symeon C. Symeonides, Choice of Law in the American Courts in 2003: Seventeenth Annual Survey, 52 AM. J. COMP. L. 9 (2004); Symeon C. Symeonides, Choice of Law in the American Courts in 2004: Eighteenth Annual Survey, 52 AM. J. COMP. L. 919 (2004) [hereinafter Symeonides, Eighteenth Annual Survey]; Symeon C. Symeonides, Choice of Law in the American Courts in 2005: Nineteenth Annual Survey, 53 AM. J. COMP. L. 559 (2005); Symeon C. Symeonides, Choice of Law in the American Courts in 2006: Twentieth Annual Survey, 54 AM. J. COMP. L. 697 (2006); Symeon C. Symeonides, Choice of Law in the American Courts in 2007: Twenty-First Annual Survey, 56 AM. J. COMP. L. 243 (2008); Symeonides, Choice of Law in American Courts 2008, supra note 13.
15. Louise Weinberg, Theory Wars in the Conflict of Laws, 103 MICH. L. REV. 1631, 1648 (2005) (emphasis omitted) (reviewing SYMEON C. SYMEONIDES, THE AMERICAN CHOICE-OF-LAW REVOLUTION IN THE COURTS: TODAY AND TOMORROW (2003)).
16. See, e.g., Symeon C. Symeonides, Resolving Punitive-Damages Conflicts, 5 Y.B. PRIVATE INT'L L. I (2003); Symeon C. Symeonides, Choice of Law for Products Liability: The 1990s and Beyond, 78 TUL. L. REV. 1247 (2004) [hereinafter Symeonides, Choice of Law for Products Liability]; SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 141-364.
17. See infra Part IV.B.
18. See infra notes 236-35 and accompanying text.
19. See infra Part III.A.
20. See, e.g., 149 CONG. REC. 25496 (2003) (statement of Sen. Chambliss) (recording available at http://www.c-spanarchives.org/congress/?q= node/77531&id=105531) ("Right now, magnet State courts are trampling over the laws of other States in their zeal to certify nationwide class actions and help enrich, frankly, the plaintiffs' trial bar. The Class Action Fairness Act... [will help] ensure that magnet State court judges stop dictating national policies from their local courthouse steps."); George F. Ball, Real Lessons of Cambridge Moment Is Injustice of Misapplied Empathy, INVESTORS.COM, July 30, 2009, http://www.investors.com/NewsAndAnalysis/Article. aspx?id=483773&Ntt=%E2%8o%9CReal+Lessons+of+Cambridge%E2%8o%9D ("Every day in our tort system 'empathetic' judges make decisions based on emotions or other non-relevant considerations that ultimately result in higher prices for just about every product and service in this country, including medical care."); Christopher Guadagnino, Malpractice Awards Surge in Pa., PHYSICIAN'S NEWS DIGEST, Jan. 2001, available at http://www.physiciansnews.com/cover/101.html ("Philadelphia judges 'bend over backward' for injured parties, allowing cases to proceed even without adequate plaintiff experts and long after filing deadlines have passed, says Paul Siegel, M.D., president of the Philadelphia County Medical Society.").
21. For example, in products-liability conflicts-which are not included in this Article even though they involve cross-border torts-the cases that applied a pro-defendant law slightly outnumber the cases that applied a pro-plaintiff law. See Symeonides, Choice of Law for Products Liability, supra note 16, at 1314-16 (documenting that fifty-one percent of the cases covered by the study, which covers a fifteen-year period, applied a pro-defendant law). Similarly, in intrastate tort conflicts, namely, cases in which the conduct and the injury occurred in the same state but which involve a party or parties from another state, American courts apply the law of a state that has certain contacts, irrespective of whether that law favors the plaintiff or the defendant. See infra Part I.B.2.
22. The selection of cases is comprehensive but not exhaustive. While every effort has been made to identify all relevant cases, there is no guarantee that the effort has been one hundred percent successful.
23. II So. 803, 807 (Ala. 1892).
24. Id. at 804.
25. Id. at 805-06.
26. Id. at 805.
27. Id. at 806.
28. Id.
29. Id.
30. Id. at 807.
31. Id.
32. See RESTATEMENT (FIRST) OF CONFLICT OF LAWS (1934). For a recent discussion of the Restatement and the work of its drafter, Professor Joseph H. Beale, see Symeon C Symeonides, The First Conflicts Restatement Through the Eyes of Old: As Bad as Its Reputation?, 32 S. III. U. L.J. 39, 57-59 (2007).
33. RESTATEMENT (FIRST) OF CONFLICT OF LAWS § 378.
34. Id. § 384.
35. Id.
36. Id. § 377 (emphasis added).
37. Id.
38. For a succinct discussion of the traditional American choice-of-law system, see SYMEON C. SYMEONIDES, AMERICAN PRIVATE INTERNATIONAL LAW 63-73 (2008).
39. The count includes the District of Columbia and the Commonwealth of Puerto Rico. For a chronology of the judicial revolution and case citations, see SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 38-43, 48. For the latest list, see Symeonides, Choice of Law in American Courts 2008 supra note 13, at 279-80.
40. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS (1971).
41. See BRAINERD CURRIE, SELECTED ESSAYS ON THE CONFLICT OF LAWS (1963).
42. See Robert A. Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U. L. REV. 267, 270-327 (1966); Robert A. Leflar, Conflicts Law: More on Choice Influencing Considerations, 54 CAL. L. REV. 1584, 1588, 1590-93 (1966).
43. For a succinct discussion of these approaches and their differences, see SYMEONIDES, supra note 38, at 92-117. For their application in the various states, see SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 63-116.
44. See SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 14, 412-13. Unlike a choice-oflaw rule, which designates in advance the law applicable to a conflicts case, a choice-of-law "approach" simply enumerates the factors that a judge should consider in choosing the applicable law on a caseby-case basis. Section 6 of the Restatement (Second) is a typical example of an "approach." See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6.
45. See SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 102-03, 100-01. Dépeçage is the result of an "issue-by-issue analysis" of a conflicts case when the analysis leads to the application of the laws of different states to different issues in the same cause of action. See id. at 100-01.
46. See id at 25-28, 81-87, 404-11. "Material justice" is juxtaposed with "conflicts justice," which is the goal of traditional choice-of-law systems. That goal is to apply the law of the state that has the most appropriate relationship with the case, regardless of the substantive quality of the result that law produces. The "material justice" view rejects this goal and instead aims for the law that would produce the most appropriate substantive result in the particular case. See Symeon C. Symeonides, Material Justice and Conflicts Justice in Choice of Law, in INTERNATIONAL CONFLICT OF LAWS FOR THE TMRD MILLENNIUM: ESSAYS IN HONOR OF FRIEDRICH K. JUENGER 125, 125, 126-28 (Patrick J. Borchers & Joachim Zekoll eds., 2001).
47. See SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 369-77. For the difference between "unilateralism" and "multilateralism" (or "bilateralism"), see Symeon C. Symeonides, Accommodative Unilateralism as a Starting Premise in Choice of Law, in BALANCING OF INTERESTS: LIBER AMICORUM PETER HAY 417, 417-30 (2005).
48. See SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9 at 386-89; Symeon C. Symeonides, Territoriality and Personality in Tort Conflicts, in INTERCONTINENTAL COOPERATION THROUGH PRIVATE INTERNATIONAL LAW: ESSAYS IN MEMORY OF PETER NYGH 401 (TaUa Einhorn & Kurt Siehr eds., 2004).
49. See SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 420-21.
50. See id. at 99, 101-02.
51. See id. 11-13, 32, 394-404.
52. The term "jurisdiction-selection" was first coined by Professor David Cavers. See David F. Cavers, A Critique of the Choice-of-Law Problem, 47 HARV. L. REV. 173, 173 (1933). For the difference between jurisdiction-selection and content-oriented law-selection and their symbiosis in contemporary American conflicts law, see SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 394-404.
53. For a full discussion of these concepts, see Symeon C. Symeonides, American Conflicts Law at the Dawn of the 21st Century, 37 WILLAMETTE L. REV. I, 46-60 (2000).
54. In the words of the New York Court of Appeals, conduct-regulating rules are those that "have the prophylactic effect of governing conduct to prevent injuries from occurring." See Padula v. Lilarn Properties Corp., 644 N.E.2d 1001, 1002 (N.Y. 1994). Loss-distributing rules are those that "prohibit, assign, or limit Uability after the tort occurs." Id. at 1003. The distinction, which is discussed in detail in SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 123-40, corresponds to the two general objectives of torts-law: deterrence and reparation or compensation. While each rule of tort law serves both objectives to some extent, some rules serve primarily one objective and only secondarily the other. Examples of conduct-regulating rules include not only "rules of the road," like speed limits and traffic-light rules, but also rules prescribing the civil sanctions for violating rules of the road, including presumptions and inferences attached to the violation; rules prescribing safety standards for work sites, buildings, and other premises; rules imposing punitive damages; and rules defining as tortious certain anticompetitive conduct, or conduct amounting to "interference with contract," "interference with marriage," or "alienation of affections." Examples of loss-distributing rules include not only guest statutes, which are now virtually extinct, but also rules that prescribe the amount of compensatory damages, rules of interspousal immunity, parent-child immunity, worker's compensation immunity, and loss of consortium.
55. 191 N.E.2d 279, 284-85 (N. Y. 1963).
56. For citations, see SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 127-29.
57. See id. at 125-29, 139-40.
58. As used in this Table and hereinafter: The term "defendant" (abbreviated "D") denotes the person whose conduct is claimed to have caused a tortious injury (the tortfeasor). The term "plaintiff" (abbreviated "P") denotes the victim of the tort. The term "pro-defendant law" denotes a law which, on the disputed issue, favors the defendant, such as a law that does not consider tortious the defendant's conduct, immunizes the defendant from suit, provides exculpatory defenses, or disallows or limits certain types of damages. The term "pro-plaintiff law" denotes a law which, on the disputed issue, favors the plaintiff, such as a law that declares tortious the defendant's conduct, disallows certain defenses by the defendant, allows punitive damages, or provides higher compensatory damages than the law or laws of the other involved state. The abbreviations "P's Dom" and "D's Dom" denote the home states of the plaintiff and the defendant, respectively. The words "conduct" and "injury" denote, respectively, the state of the injurious conduct and the state in which the resulting injury occurred. The use of capital letters in the last four columns of the Table indicates that the state represented by that column has a pro-plaintiff law. Lower-case letters indicate a pro-defendant law. The shaded cells represent the state whose law has been applied in the majority of cases falling within the particular patterns.
59. For documentation and discussion of these cases, see SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 145-59.
60. Also, most of those cases involved intrastate torts (like those portrayed in rows 1 and 3 of Table I) in which the conduct and injury occurred in the same state other than the state of the parties' common domicile. However, by parity of reasoning, the law of the parties' common domicile would also apply in cross-border cases such as those portrayed in rows 2 and 4 of the Table.
61. See SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 213-20.
62. See infra Parts II-III. In loss-distribution conflicts in which the parties are domiciled in different states that have the same law on the disputed issue, courts tend to apply the law of the domicile of either party. See SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 159-62.
63. See SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 163-91 (loss-distribution conflicts); id. at 213-20 (conduct-regulation conflicts).
64. See id. at 202-07 (loss-distribution conflicts); id. at 213-20 (conduct-regulation conflicts).
65. The reason for excluding these cases is because, as noted above, they are governed either by the law of the parties' common domicile or by the law of the domicile of one of the parties. See supra Part I.B.I; supra note 62.
66. The reason for excluding these cases is because they are a species of false conflict in the sense that it makes no difference which of the two laws the court applies.
67. The reason for excluding products liability conflicts is because their resolution is often based on additional factors or contacts, such as the place of the product's acquisition, which are not present in other cross-border torts. For a comprehensive discussion of products-liability conflicts cases from 1990 to 2004, see generally Symeonides, Choice of Law for Products Liability, supra note 16.
68. The reason for excluding class-action cases is because most of these cases discuss the choice-of-law issue only in a tentative and often incomplete fashion in the preliminary context of class certification. See Symeonides, Eighteenth Annual Survey, supra note 14, at 988-89; infra note 104 and accompanying text.
69. See Symeon C. Symeonides, Choice of Law in Cross-Border Torts (Jan. 14, 2009) (unpublished manuscript), available at http://ssrn.com/abstract=1328191.
70. If the two states have the same law on the particular issue, then there is no conflict between those two states, although there may well be a conflict with the law of a third state. These cases are not discussed here. Suffice it to say that, if the conflict involves only conduct-regulation issues, courts tend to apply the law of either the state of conduct or the state of injury, rather than the law of the third state. See SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 220-23.
71. See CURRIE, supra note 41.
72. For numerous cases adopting this proposition and focusing instead on the interests of the state or states of conduct and injury, see SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 213-33; infra note 73.
73. For matters of conduct-regulation, "[t]he maxim 'When in Rome do as the Romans do' bespeaks the common sense view that it is the traveler who must adjust." Bledsoe v. Crowley, 849 F.2d 639. 647 (D.C. Cir. 1988) (Williams, J., concurring). A state has an interest in applying its conduct-regulating rules to conduct or injury occurring within its territory, even if neither the actor nor the victim is domiciled there. Conversely, a foreigner may not claim exemption from these rules and, when injured by conduct that violates them, a foreigner may not be denied the benefit of their protection. Countless cases have adopted these propositions and have held that the interests of the state of injury or conduct overrides any interests of the foreigner's home state. See, e.g.. Carris v. Marriott Int'l, Inc., 466 F.3d 558, 561-62 (7th Cir. 2006) (if personal injury claims of hotel guests against hotel operators were subject to the tort of each guest's home state, "[t]he burden of compliance would be staggering, especially since different countries, having different ideas about safety, might impose inconsistent tort duties. One jurisdiction might think the absence of airbags from vehicles negligent; another might think their presence negligent because of the danger to children. So how would a hotel equip its airport shuttle van?"); Spinozzi v. ITT Sheraton Corp., 174 F.3d 842, 846 (7th Cir. 1999) ("We doubt that [the Illinois plaintiff] would have thought he was carrying his domiciliary law with him, like a turtle's house, to every foreign country he visited.... [H]e would not, eating dinner with a Mexican in Acapulco, feel himself cocooned in Illinois law, like citizens of imperial states in the era of colonialism who were granted extraterritorial privileges in weak or dependent states."); Brooks v. Gen. Cas. Co. of Wis., No. 06-C-0996, 2007 WL 4305577, at *3 (E.D. Wis. Dec. 7, 2007) (holding that it would constitute "officious intermeddling" to apply the law of the guest's home state rather than the law of the state in which the hotel was located); Johnson v. Ford Motor Co., Inc., No. 01-C-8882, 2003 WL 22317425, at *5 (N.D. Ill. Oct. 09, 2003) ("Plaintiffs cannot reasonably expect that a foreign state's law will govern the allocation of any possible damages award in a single-car incident merely because an accident fortuitously occurs outside of Illinois, but they know they are subject to the traffic laws of another state when driving in that state."); Bonelli v. Giguere, 2004 WL 424089, at *2-*3 (Conn. Super. Ct. Feb. 18, 2004) (finding that New York rule allowing evidence of non-use of seat-belt was a "regulatory law specifically aimed at drivers traveling upon New York roadways," and thus New York had "no interest in the application of this law beyond its borders" on Connecticut roads. Connecticut had the exclusive interest in applying its own "regulatory laws regarding roadway travel" in Connecticut); Bertram v. Norden, 823 N.E.2d 478 (Ohio Ct. App. 2004) (finding that Michigan had the exclusive interest in applying its assumption-of-risk rule to Michigan snowmobile accident involving two Ohio domiciharies).
74. For the use of these "escape devices," like characterization, ordre public, or renvoi under the traditional system, see SYMEONIDES, supra note 38, at 74-85.
75. See infra pp. 355-56 tbl. 3 (showing that thirty-four out of forty-one cases (or eighty-three percent) applied the pro-plaintiff law of the state of conduct); infra p. 362 tbl. 4 (showing that thirteen out of sixteen cases (or eighty-one percent) applied the pro-plaintiff law of the state of injury).
76. The term "false conflict" was first advanced by the chief architect of interest analysis, Professor Brainerd Currie. See CURRIE, supra note 41, at 180. False conflicts are those in which only one of the involved states has an interest in applying its own law. See id. at 107-10, 180, 189. In contrast "true conflicts" are those in which both (or more) of the involved states have such an interest. See id. at 180.
77. 628 A.2d 305 (N.J. 1993).
78. Id. at 307-08.
79. Id. at 308.
80. Id. at 307.
81. Id.
82. Id. at 321.
83. Id. at 316.
84. Id. at 307.
85. Id. at 318.
86. Id. at 311.
87. Id. at 315.
88. Id. at 316.
89. Id. at 315.
90. This Table and subsequent tables list the case name, the forum state, and the states that had the four basic contacts-namely, the plaintiffs domicile and injury, and the defendant's conduct and domicile. The shaded cells indicate the state whose law the court applied.
91. See Fanselow v. Rice, 213 F. Supp. 2d 1077, 1084-86 (D. Neb. 2002) (imposing punitive damages under Minnesota law on a Minnesota employer of a truck driver who caused an accident in Nebraska, which prohibited punitive damages); Cunningham v. PFL Life Ins. Co., 42 F. Supp. 2d 872, 892 (N.D. Iowa 1999) (imposing punitive damages under Iowa law on Iowa defendant who engaged in bad faith insurance practices in Iowa and caused injuries to insureds domiciled in several states); Jackson v. Travelers Ins. Co., 26 F. Supp. 2d 1153, 1163 (S.D. Iowa 1998) (imposing punitive damages under Iowa law in case involving bad faith insurance practices that took place in Iowa and caused injury in Nebraska, which prohibited punitive damages); In re Air Crash Disaster at Stapleton Int'l Airport, 720 F. Supp. 1445, 1453 (D. Colo. 1988) (imposing punitive damages under Texas law on airline whose airplane crashed in Colorado; Texas was the airline's principal place of business and the place of the conduct most likely responsible for the crash; Colorado did not allow punitive damages in wrongful death actions); Ardoyno v. Kyzar, 426 F. Supp. 78, 83-84 (E.D. La. 1976) (imposing punitive damages under Mississippi law in a slander action by a Louisiana plaintiff against a Mississippi defendant who made defamatory statements about the plaintiff in Mississippi and caused injury in both states); see also Bryant v. Silverman, 703 P.2d 1190, 1195-97 (Ariz. 1985) (imposing punitive damages under the law of Arizona, which was the defendant airline's principal place of business, without resolving the factual question of whether the critical conduct had also occurred in Arizona or, as the defendant argued, in Colorado, where the defendant's airplane crashed; Colorado did not allow punitive damages).
92. See Trapp v. 4-10 Inv. Corp., 424 F.2d 1261, 1264-65 (8th Cir. 1970) (Minnesota accident and victim, North Dakota tavern and dram shop act); Patton v. Carnrike, 510 F. Supp. 625, 630 (N.D.N.Y. 1981) (applying New York law imposing liability on a New York alcohol vendor who sold alcohol to a Pennsylvania minor who drove back to Pennsylvania and caused an accident there; refusing to apply Pennsylvania's parental supervision defense); Bankord v. DeRock, 423 F. Supp. 602, 606 (N.D. Iowa 1976) (Minnesota accident and victim, Iowa tavern and dram shop act); Zhou v. Jennifer Mall Rest., Inc., 534 A.2d 1268, 1270-71 (D.C. 1987) (applying the District of Columbia's dram shop act imposing liability on a D.C. tavern owner whose drunk patron caused an accident in Maryland; Maryland did not impose liability); Schmidt v. Driscoll Hotel, 82 N.W.2d 365, 368 (Minn. 1957) (applying Minnesota's dram shop act imposing liability on a Minnesota tavern owner whose drunk patron caused an accident in Wisconsin, injuring plaintiff, also a Minnesota resident; Wisconsin did not have a dramshop act); Rutledge v. Rockwells of Bedford, Inc., 613 N.Y.S.2d 179, 180-81 (App. Div. 1994) (applying New York's dram shop act imposing liability on a New York tavern owner whose drunk patron caused an accident in Connecticut). For an admiralty case, see Quinn v. St. Charles Gaming Co., 815 So. 2d 963, 968 (La. Ct. App. 2002), which held that federal law, which imposed liability on tavern owner, preempted Louisiana law, which did not impose such liability; the service of alcohol occurred on a river boat casino while on navigable waters and the injury occurred on land in Louisiana.
93. See Johnson v. Yates, No. 94-6041, 1994 WL 596874, at »2-3 (10th Cir. Nov. 2, 1994) (decided under Oklahoma conflicts law). In Yates, the defendants, Oklahoma residents, were passengers in a pickup truck driven by another Oklahoma resident and purchased their first round of beer in Oklahoma and the second round in Texas. Id. at *I. In the latter state, the pickup truck collided with a car occupied by three New Mexico residents, two of whom were killed. Id. The victims' families sued the passengers of the pickup truck in federal district court in Oklahoma for negligence in furnishing beer to the driver. Id. The defendants would have been Uable under Oklahoma law, but not under Texas law. Id. at *2-3. The court concluded that Texas had the most significant relationship, chiefly because the injury and much of the conduct had occurred in that state. Id.
94. While most cases characterize these statutes as conduct-regulating, see, e.g., Svege v. Mercedes Benz Credit Corp., 182 F. Supp. 2d 226, 232 (D. Conn. 2002), some cases characterize them as loss-distributing. These cases are discussed infra note 113. A preempting federal statute enacted in 2005 released car rental companies from vicarious liability but did not do so for other car owners. See 49 U.S.C. § 30106 (2006).
95. See Garcia v. Plaza Oldsmobile Ltd., 421 F.3d 216, 221-22 (3d Cir. 2005) (applying New York's car-owner liability statute to case arising from an accident in Pennsylvania, which did not have such a statute); Gaither v. Myers, 404 F.2d 216, 221-22 (D.C. Cir. 1968) (applying D.C. rule imposing civil liability on car owner who left his car unlocked and unattended in action arising from Maryland accident caused by the defendant's apparently stolen car; Maryland law did not impose liability); Aponte v. Baez, No. CV000802893, 2002 WL 241456, at *2-3 (Conn. Super. Q. Jan. 30, 2002) (applying Connecticut's car-owner liability statute to case arising out of a Pennsylvania accident that injured a Puerto Rico victim and involved a car rented in Connecticut; Pennsylvania did not impose liability); Veasley v. CRST Int'l, Inc., 553 N.W.2d 896, 897-98 (Iowa 1996) (applying Iowa's car-owner statute to case arising from an accident in Arizona, which did not have such a statute); Sexton v. Ryder Truck Rental, Inc., 320 N.W.2d 843, 856 (Mich. 1982) (applying Michigan's car-owner liability statute to case involving a truck leased in Michigan and arising from an accident in Virginia, which did not have such a statute,); Burney v. P V Holding Corp., 553 N.W.2d 657, 659-60 (Mich. Q. App. 1996) (applying Michigan's car-owner statute to case in which the driver rented the car in Michigan and caused an accident in Alabama, a state that did not have such a statute). Other cases have applied New York's car-owner liability statute in actions arising from accidents occurring in states that did not impose liability on the car owner and caused by a car rented or loaned in New York. See Lindsay v. Toyota Motor Sales, U.S.A. Inc., Nos. 04 Civ. 10137 (NRB), 05 Civ. 943 (NRB), 2005 WL 2030311, at *5 (S.D.N.Y. Aug. 22, 2005) (Georgia accident, New York victim); McKinney v. S & S Trucking, Inc. 885 F. Supp. 105, 107-08 (D.N.J. 1995) (New Jersey accident, New Jersey victim); White v. Smith, 398 F. Supp. 130, 141-42 (D.N.J. 1975) (New Jersey accident, Pennsylvania victim); Dolan v. Sea Transfer Corp., 942 A.2d 29, 38 (N.J. Super. Ct. App. Div. 2008) (New Jersey accident. New York victim); Maffatone v. Woodson, 240 A.2d 693, 696 (N.J. Super. Ct. App. Div. 1968) (New Jersey accident, New York victim); Farber v. Smolack, 229 N.E.2d 36, 38-39 (N.Y. 1967) (North Carolina accident involving New York parties); Ames v. Cross, 575 N.Y.S.2d 991, 992-93 (App. Div. 1991) (Virginia accident, New York victim). Cases have also applied Florida's car-owner liability rule in actions arising from accidents occurring in states that did not impose liability on the car owner and caused by cars rented or loaned in Florida. See, e.g., Erickson v. Hertz Corp., No. Civ. 05-1690, 2006 WL 1004385, at *5 (D. Minn. Apr. 17, 2006) (North Carolina accident, Minnesota victims); Crowell v. Clay Hyder Trucking Lines, Inc., 700 So. 2d 120, 123-24 (Fla. Dist. Ct. App. 1997) (Georgia accident, Florida victims); Stallworth v. Hospitality Rentals, Inc., 515 So. 2d 413, 416 (Fla. Dist. Ct. App. 1987) (Louisiana accident, Florida victims); Oliver v. Davis, 679 So. 2d 462, 466-68 (La. Ct. App. 1996) (Louisiana accident, Louisiana victim); see also Stathis v. Nat'l Car Rental Sys., 109 F. Supp. 2d 55, 58 (D. Mass. 2000) (applying Maine's car-owner liability statute to case arising from a Massachusetts accident injuring Massachusetts domiciliary and involving a car rented in Maine; Massachusetts law did not impose liability); Newcomb v. Haywood, No. 01-01261, 2003 WL138404, at *2-3 (Mass. Super. Ct. Jan. 8, 2003) (applying Rhode Island's car-owner liability statute to case arising from a Massachusetts accident injuring Massachusetts domiciliary and involving a car rented in Rhode Island; Massachusetts law did not impose liability); Kline v. McCorkle, 330 F. Supp. 1089, 1091-92 (E.D. Va. 1971) (decided under North Carolina conflicts law; characterizing as contractual the action of the victim of a North Carolina accident against a New York car-rental company and applying New York statute imposing UabUity; North Carolina did not impose liability on car owner).
96. See Value Rent-A-Car, Inc. v. Harbert, 720 So. 2d 552, 554-55 (Fla- Dist. Ct. App. 1998) (dismissing on forum non conveniens grounds action of Georgia domiciliary injured in Georgia by car rented in Florida from a Florida car-rental company; stating that Florida's car-owner liability rule would not have been applicable); Arias v. Figueroa, 930 A.2d 472, 476-477 (N.J. Super. Ct. App. Div. 2007) (applying New Jersey's nonliability rule to a case arising from a New Jersey accident injuring a New Jersey domiciliary; the car-rental transaction took place in New York, the law of which imposed liability on the company); Kim v. Paccar Fin. Corp., 896 A.2d 489, 491 (N.J. Super. Ct. App. Div. 2006) (applying New Jersey's nonliability rule to case arising from New Jersey accident injuring New Jersey domiciliary and caused by truck rented in New York, the law of which imposed liability on the Washington car owner); Roper v. Team Fleet Fin. Corp., No. 26591/2001, 2006 WL 288699, at *6 (N.Y. Sup. Ct. Feb. 7, 2006) (applying Pennsylvania's nonliability law to case arising from Pennsylvania accident injuring New York passenger and caused by a car rented in Connecticut from an Illinois company; Illinois law did not impose liability on the car owner; the court did not consider Connecticut law); Perkins v. Dynasty Group Auto, No. 08-01-00493-CV, 2003 WL 22810452, at *4 (Tex. App. Nov. 25, 2003) (finding that critical conduct occurred in Texas and applying Texas' non-liability rule to case arising from Texas accident injuring Australian passenger of car owned by California dealer and entrusted to Swedish tourist to drive from Florida to California; Florida law would hold the dealer liable).
97. See Tri-State Hosp. Supply Corp. v. United States, No. 00-01463 (HHK), 2007 WL 2007587, at *5-6 (D.D.C. July 6, 2007) (Federal Tort Claims Act case decided under D.C. conflicts law; applying D.C.'s pro-plaintiff law, rather than Michigan's pro-defendant law, to action for malicious prosecution brought by a Michigan plaintiff against the federal government and arising out of D.C. conduct and Michigan injury).
98. See Pittman v. Maldania, Inc., No. 00C-01-029 JTV, 2001 WL 1221704, at *4 (Del. Super. Ct. July 31, 2001) (applying Delaware's pro-plaintiff law, rather than Pennsylvania's pro-defendant law, to action arising from Pennsylvania injury caused by jet skis rented at defendant's Delaware shop to Delaware minors).
99. See Marra v. Bushee, 447 F.2d 1282, 1283-84 (2d Cir. 1971) (decided under Vermont conflicts law; holding that if the defendant's conduct had occurred in Vermont, the New York plaintiff would be entitled to an action for alienation of affection against the Vermont defendant under Vermont law, even though the injury occurred in New York, which did not allow this action). But see Williams v. Jeffs, 57 P.3d 232, 237-38 (Utah Ct. App. 2002) (dismissing action for alienation of affection brought by Arizona plaintiff against Utah defendants despite Utah's numerous contacts, including the occurrence of the critical conduct; Utah law, but not Arizona law, allowed the action).
100. See Tri-State, 2007 WL 2007587, at *5-6; Pittman, 2001 WL 1221704, at *4; Marra, 447 F.2d at 1283-84.
101. See Williams, 57 P.3d at 237-38.
102. The following cases certified a multistate class action under the pro-plaintiff law of the state of conduct and defendant's principal place of business (noted in parentheses); the plaintiffs had suffered their injuries in their home states, which had pro-defendant laws. See Powers v. Lycoming Engines, 245 F.R.D. 226, 230-35 (E.D. Pa. 2007) (Pennsylvania); Rakes v. Life Investors Ins. Co. of Am., No. 06-CV-99-LRR, 2007 WL 2122195, at *9 (N.D.
103. See In re Vivendi Universal, S.A. Sec. Litig., 381 F. Supp. 2d 158 (S.D.N.Y. 2003), (holding that the Federal Securities and Exchange Act applied because the critical fraudulent conduct occurred in the United States when two top foreign executives of defendant company resided in, and operated the company from, the United States); Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430 (Tex. 2007) (certifying multinational class action under the Texas Securities Act).
104. Int'I Union of Operating Eng'rs Local No. 68 Welfare Fund v. Merck & Co., 929 A.2d 1076, 1086 n.3 (N.J. 2007).
105. In the following cases, the courts denied class certification after finding the law of the conduct state (which is noted in parentheses) inapplicable. See In re Bridgestone/Firestone, Inc., 288 F.3d 1012 (7th Cir. 2002) (Tennessee and Michigan);
106. Lantz v. Am. Honda Motor Co., No. 06 C 5932, 2007 WL 1424614 (N.D. Ill. May 14, 2007) (California);
107. Blain v. Smithkline Beecham Corp., 240 F.R.D. 179 (E.D. Pa. 2007) (Pennsylvania);
108. In re Prempro Prods. Liab. Litig., 230 F.R.D. 555 (E.D. Ark. 2005) (New Jersey and Pennsylvania);
109. In re Rezulin Prods. Liab. Litig., 210 F.R.D. 61 (S.D.N.Y. 2002) (New Jersey);
110. In re Propulsid Prods. Liab. Litig., 208 F.R.D. 133 (E.D. La. 2002) (New Jersey);
111. Barbara's Sales, Inc. v. Intel Corp., 879 N.E.2d 910 (Ill. 2007) (California);
112. Pratt v. Panasonic Consumer Elec. Co., 2006 WL 1933660 (N.J. Super. Ct. Law Div. July 12, 2006) (New Jersey);
113. Cartiglia v. Johnson & Johnson Co., No. MID-L-2754-01, 2002 WL 1009473 (N.J. Super. Ct. Law Div. Apr. 24, 2002) (New Jersey);
114. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675 (Tex. 2002) (Texas);
115. Vanderbilt Mortgage & Fin., Inc. v. Posey, 146 S.W.3d 302 (Tex. App. 2004) (Tennessee). For cases assuming that the critical conduct occurred in the same state as the injury, see Berry v. Budget Rent A Car Sys., Inc., 497 F. Supp. 2d 1361 (S.D. FIa. 2007) (New Jersey), and In re Vioxx Products Liability Litigation, 239 F.R.D. 450 (E.D. La. 2006) (New Jersey).
116. For example, when both parties are domiciled in the same state, then, as noted earlier, most courts classify that as a false conflict in which only the state of the common domicile has an interest in applying its law. See supra Part I.B.I. Likewise, when the parties are domiciled in different states that have the same loss-distribution law, most courts adopt the same classification and apply the law of one of the domiciliary states, by analogy to the common-domicile cases.
117. See supra Part I.B.I, supra note 62.
118. See CURRIE, supra note 41, at 152-56.
119. See, e.g., Hitchcock v. United States, 665 F.2d 354, 360 (D.C. Cir. 1981) (finding that interests of state of conduct were "more substantial" than those of state of injury, at least when defendant was headquartered in state of conduct);
120. Williams v. Rawlings Truck Line, Inc., 357 F.2d 581 (D.C. Cir. 1965);
121. Workman v. Chinchinian, 807 F. Supp. 634, 640 (E.D. Wash. 1992) (finding that application of pro-plaintiff rule of conduct state would "clearly advance [that state's] deterrent policy," while application of pro-defendant rule of state of injury would "not protect [that state's] residents, it [would] merely limit the damages recoverable by its own residents");
122. Fanning v. Dianon Sys., Inc., No. 05-CV-01899-LTB-CBS, 2006 WL 2385210, at *5 (D. Colo. Aug. 16, 2006) (finding that state of conduct had greater interest in applying its pro-plaintiff law to deter negligent conduct there and that, since the defendant corporation was based in that state, there was "no injustice to a corporation in applying the law of the state where it has chosen to locate its principal place of business" (quoting Kozoway v. Massey-Ferguson, 722 F. Supp. 641, 646 (D. Colo. 1989)));
123. Ardoyno v. Kyzar, 426 F. Supp. 78 (E.D. La. 1976) (finding that the state of conduct had an interest in applying its pro-plaintiff rule even though it would benefit a foreign defendant at the expense of a local plaintiff);
124. Schubert v. Target Stores, Inc., 201 S.W.3d 917, 923 (Ark. 2005) (finding that state of conduct had "a real interest in protecting its people from negligent behavior").
125. Williams, 357 F.2d at 586 (applying the pro-plaintiff law of the conduct state (New York) against a New York defendant in a case arising out of injury in D.C). In Williams, the defendant sold his car in New York but did not follow the proper procedures for transferring title.
126. Id. at 583. The car was later involved in a D.C. accident, injuring plaintiff, a New Jersey domiciliary.
127. Id. at 582. Under the law of New York, but not under D.C. law, the defendant was estopped from denying his ownership, and thus liability.
128. Id. at 583-84.
129. See supra p. 362 tbl. 4, cases 1 through 13.
130. See supra note 108.
131. See Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001) (action for misappropriation of a person's picture and name for commercial purposes; applying the pro-plaintiff law of the state of conduct (California), rather than the pro-defendant law of the state of injury (Hawaii) in a case involving a Hawaii plaintiff and a California defendant);
132. Motor Club of Am. Ins. Co. v. Hanifi, 145 F.3d 170 (4th Cir. 1998) (decided under Maryland conflicts law; applying New York's car-owner liability statute to a case arising from a Maryland accident injuring a New Jersey domiciliary and involving a car rented in New York by a New York company; Maryland law did not impose liability);
133. Hitchcock, 665 F.2d 354 (Federal Tort Claims Act decided under D.C. conflicts law; action for erroneous medical advice given in D.C. and causing injury in Virginia; applying the proplaintiff law of the state of conduct (D.C), rather than the pro-defendant law of the state of injury (Virginia), in a case involving a Virginia plaintiff and D.C. defendants);
134. Gianni v. Fort Wayne Air Serv., Inc., 342 F.2d 621 (7th Cir. 1965) (decided under Indiana conflicts law; applying Indiana's longer limitation statute to wrongful death actions by survivors of Connecticut victims of Massachusetts air crash, because alleged negligence in inspecting the aircraft by Indiana defendant had occurred in Indiana);
135. Williams, 357 F.2d 581;
136. Workman, 807 F. Supp. 634 (action for medical malpractice resulting from misdiagnosis in another state; applying the pro-plaintiff law of the state of conduct (Washington), rather than the pro-defendant law of the state of injury (Idaho) in a case involving an Idaho plaintiff and a Washington defendant);
137. Schubert, 201 S.W.3d 917 (applying the pro-plaintiff law of the state of conduct (Arkansas), rather than the pro-defendant law of the state of injury (Louisiana) in a case involving an Oklahoma plaintiff and an Arkansas-based defendant);
138. Janssen v. Ryder Truck Rental, Inc., 667 N.Y.S.2d 369 (App. Div. 1998) (applying New York statute imposing liability on a car owner in a case arising from a New Jersey accident caused by a car rented in New York and involving parties domiciled in a state whose law was similar to New York's; New Jersey law did not impose UabUity);
139. see also Lopez v. United States, No. CV-03-1729 (CPS), 2005 WL 2076593 (E.D.N.Y. Aug. 26, 2005) (Federal Tort Claims Act action by a New York plaintiff against the federal government decided under Pennsylvania conflicts law; finding that critical conduct occurred in Pennsylvania and applying its pro-plaintiff law).
140. 113- See Cates v. Creamer, 431 F.3d 456 (5th Cir. 2005) (applying Florida law imposing liability on car owner who leased the car in Florida to a Florida domiciliary, who drove to Texas and had an accident there, injuring a Texas domiciliary; Texas law did not impose liability);
141. Fanning v. Dianon Sys., Inc., Civil No. 05-CV-01899-LTB-CBS, 2006 WL 2385210 (D. Colo. Aug. 16, 2006) (applying Connecticut's pro-plaintiff law to action for medical misdiagnosis brought against a Connecticut medical laboratory by a Colorado patient injured in Colorado);
142. Ardoyno v. Kyzar, 426 F. Supp. 78 (E.D. La. 1976) (applying Mississippi law to action for interference with contract brought by Louisiana plaintiff against a Mississippi defendant whose conduct in Mississippi caused injury to plaintiff in both states; Mississippi, but not Louisiana, allowed such an action.);
143. Coats v. Hertz Corp., 695 N.E.2d 76 (Ill. App. Q. 1998) (applying New York's car-owner liability statute in case arising from an Illinois accident injuring an Illinois domiciliary and involving a car rented in New York by a company doing business there;
144. Illinois law did not impose liability);
145. Cortes v. Ryder Truck Rental, Inc., 581 N.E.2d 1 (Ill. App. Q. 1991) (applying Wisconsin's car-owner liability statute to case arising from an Indiana accident injuring Illinois domiciliary and involving car rented in Wisconsin from a company doing business there; Indiana law did not impose liability).
146. See, e.g., Fanning, 2006 WL 2385210, at »5 (finding that state of conduct had greater interest in applying its pro-plaintiff law to deter negligent conduct there and that, since the defendant corporation was based in that state, there was "no injustice to a corporation in applying the law of the state where it has chosen to locate its principal place of business" (quoting Kozoway v. MasseyFerguson, 722 F. Supp. 641, 646 (D. Colo. 1989)));
147. Ardoyno, 426 F. Supp. 78 (finding that the state of conduct had an interest in applying its pro-plaintiff rule even though it would benefit a foreign defendant at the expense of a local plaintiff). Several (but by no means all) products liability cases, which are outside the scope of this Article, have also reached the same conclusion.
148. See, e.g., McLennan v. Am. Eurocopter Corp., 245 F.3d 403 (5th Cir. 2001) (decided under Texas conflicts law and applying Texas pro-plaintiff law to an action of a Canadian domiciliary injured in Canada by a product manufactured by a Texas manufacturer in Texas);
149. Lacey v. Cessna Aircraft Co., 932 F.2d 170 (3d Cir. 1991) (applying Pennsylvania's strict liability law to a case involving a product that was manufactured in Pennsylvania and caused injury in British Columbia);
150. Mitchell v. Lone Star Ammunition, Inc., 913 F.2d 242 (5th Cir. 1990) (applying Texas law and allowing action brought by foreign plaintiffs against Texas manufacturer of product that was manufactured in Texas and caused injury in a state whose statute of repose barred the action);
151. Lewis-DeBoer v. Mooney Aircraft Corp., 728 F. Supp. 642, 645 (D. Colo. 1990), (concluding that Texas, as the place of the defendant's conduct and principal place of business, "ha[d] a greater policy interest in applying its laws and providing deterrence than Colorado ha[d] in preventing a windfall to its citizens";
152. Colorado was the victim's home state and place of injury);
153. DeGrasse v. Sensenich Corp., No. 88-1490, 1989 WL 23775 (E.D. Pa. Mar. 15, 1989) (applying Pennsylvania's pro-plaintiff law to action brought by Arkansas plaintiff injured in Alabama against a Pennsylvania manufacturer);
154. Gantes v. Kason Corp., 679 A.2d 106 (N.J. 1996) (applying New Jersey's statute of limitation and allowing action brought by family of Georgia domiciliary who was killed in Georgia while using a product manufactured by New Jersey defendant in New Jersey;
155. Georgia's statute of repose barred the action).
156. 115- See Heisler v. Toyota Motor Credit Corp., 884 F. Supp. 128 (S.D.N.Y. 1995) (applying New Jersey's nonliability rule rather than New York's car-owner liability rule in a case arising from a New Jersey accident caused by a car rented in New York and injuring a New York domiciliary);
157. Buglioli v. Enterprise Rent-a-Car, 811 F. Supp. 105, 107 (E.D.N.Y. 1993) (applying New Jersey's non-liability rule rather than New York's car-owner liability rule in a case arising from a New Jersey accident caused by a car rented in New York and injuring New Jersey domiciliary), affd, 999 F.2d 536 (2d Cir. 1993);
158. Salavarria v. Nat'l Car Rental Sys., Inc., 705 So. 2d 809 (La. App. 4 Cir. 1998) (applying Louisiana's nonliability rule, rather than Florida's car-owner liability rule, in a case arising from a Louisiana accident caused by car rented in Florida from Florida owner and injuring Louisiana domiciliary).
159. It is of course possible that a state may have a pro-defendant conduct-regulating law and a pro-plaintiff loss-distribution law, or vice versa. If so, the case will fall within Pattern 2 with regard to conduct regulation and Pattern 1 with regard to loss distribution issues. The application of the law of one state to the first and the law of the other state to the second category of issues may result in a potentially inappropriate dépeçage, although in practice, such cases have been rare. For the criteria of distinguishing between inappropriate and permissible dépeçage, see SYMEON C. SYMEONIDES ET AL., CONFLICT OF LAWS: AMERICAN, COMPARATIVE, INTERNATIONAL 206 (2d ed. 2003).
160. See supra note 76.
161. The placement of a particular case within one category or the other is based on the court's own assumptions, whether explicit or implicit. Even if, in a particular case, these assumptions are questionable, they do not affect the conclusions of this Article.
162. Currie thought that such a weighing was a "political function of a very high order. . . that should not be committed to courts in a democracy." CURRIE, supra note 41, at 182;
163. see also id. at 27879. 357 (speaking of the "embarrassment of [a court] having to nullify the interests of its own sovereign");
164. Brainerd Currie, The Disinterested Third State, 28 LAW & CONTEMP. PROBS. 754, 778 (1963).
165. See infra text accompanying notes 157, 173-81, 259-63, 280.
166. But see Weinberg, supra note 15, at 1654 (arguing that the foreseeability factor has been overstated: "[A] defendant's insurer is the paradigmatic actuarial expert, and has every opportunity to structure the insured's coverage accordingly. It has every opportunity to adjust the defendant's premiums to take into account this and other risks. Given the near universality of liability insurance among suable defendants, it is somewhat unreal to speak of 'unfair surprise' to tort defendants. They have insured against liability precisely because they anticipate it under some state's laws.").
167. 509 U.S. 764 (1993).
168. 109 F/3d i (ist Cir. 1997) (upholding criminal prosecution under the Sherman Act of a Japanese defendant for conduct in Japan (price fixing) that was intended to, and did, produce detrimental effects in the United States).
169. 494 F. Supp. 1161 (E.D. Pa. 1980) (holding that, even if Japanese defendant committed no acts outside Japan, the defendant could be liable under the Sherman Act if proven to have participated in worldwide conspiracy intended to affect the American market).
170. 566 F.3d 1095, 1130-31 (D.C. Cir. 2009) (employing the "effects test" and affirming district court's holding that Racketeer Influenced and Corrupt Organizations Act (RICO) applied to a British defendant whose conduct in the United Kingdom produced intended and substantial detrimental effects in the United States).
171. Strassheim v. Daily, 221 U.S. 280, 285 (1911).
172. See F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 165 (2004) ("[O]ur courts have long held that application of our antitrust laws to foreign anticompetitive conduct is . . . reasonable . . . insofar as they reflect a legislative effort to redress domestic antitrust injury that foreign anticompetitive conduct has caused.");
173. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 582 n.6 (1986) ("The Sherman Act does reach conduct outside our borders, but only when the conduct has an effect on American commerce.");
174. Cont'l Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 704 (1962) ("A conspiracy to monopolize or restrain the domestic or foreign commerce of the United States is not outside the reach of the Sherman Act just because part of the conduct complained of occurs in foreign countries.").
175. 509 U.S. at 795-96.
176. Id. at 796 ("[T]he conduct alleged here [is] that the London reinsurers engaged in unlawful conspiracies to affect the market for insurance in the United States and that their conduct in fact produced substantial effect.").
177. Id. at 799 (citing RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 415 cmt. j (1987)).
178. See id.
179. See Filetech S.A. v. France Telecom S.A., 157 F.3d 922 (2d Cir. 1998);
180. Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979);
181. Timberlane Lumber Co. v. Bank of Am., N.T. & S.A., 549 F.2d 597 (9th Cir. 1976);
182. Schoenbaum v. Firstbrook, 405 F.2d 200, 208 (2d Cir. 1968) (holding that the Securities Exchange Act applies to foreign transactions involving stock listed on the U.S. stock exchange and adversely affecting U.S. investors), rev'd on other grounds en banc, 405 F.2d 215 (2d Cir. 1968);
183. United States v. Aluminum Co. of Am., 148 F.2d 416 (2d Cir. 1945);
184. Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 494 F. Supp. 1161 (E.D. Pa. 1980);
185. see also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 402(I)(c) ("[A] state has jurisdiction to prescribe law with respect to... conduct outside its territory that has or is intended to have substantial effects within its territory[.]").
186. 137 P-3d 914, 917 (Cal. 2006) (applying California law and granting injunction enjoining Georgia defendants from recording their telephone conversations with their California clients; the recordings were legal under Georgia law, but illegal under California law).
187. 486 F. Supp. 2d 1022, 1025-26 (N.D. Cal. 2007) (holding that the operator of an Arizona website who refused to post an adoption ad sent by two California same-sex partners was subject to Cahfornia's Civil Rights Act).
188. No. CV010380279, 2002 WL 31125621, at *I (Conn. Super. Ct. Aug. 20, 2002) (applying Connecticut law to invasion of privacy action between ex-spouses arising from unauthorized recording of telephone conversation between Connecticut and New York; recording was illegal in Connecticut, but not in New York, where recording occurred).
189. 431 F.2d 584, 590 (9th Cir. 1970) (applying California law to action for intentional infliction of mental distress of California domiciliary caused by letters sent to him by Arizona domiciliary from Arizona).
190. 736 F.2d 1084 (5th Cir. 1984) (applying Texas law to invasion of privacy action filed by Texas plaintiff whose pictures were published without permission by a California magazine publisher); see also Church of Scientology of Cal., Inc. v. Green, 354 F. Supp. 800 (S.D.N.Y. 1973) (applying New York law to libel action filed by New York plaintiff based on documents sent from California to New York).
191. 546 P-2d 719,725-26 (Cal. 1976) (applying California law imposing liability on Nevada tavern owner who served alcohol to an apparently intoxicated patron who then drove to California and caused an accident there, injuring a California domiciliary; Nevada law did not impose liability on the tavern owner).
192. 820 P.2d 316, 322 (Ariz. Ct. App. 1991) (applying Arizona law imposing liability on Nevada tavern owner who served alcohol to an apparently intoxicated patron, who then drove to Arizona and caused an accident there, injuring an Arizona domiciliary; Nevada law did not impose liability on the tavern owner).
193. 270 N.W.2d 884, 891 (Minn. 1978) (applying Minnesota law imposing liability on a Wisconsin liquor shop owner who sold alcohol to a Minnesota minor, who then drove to Minnesota and caused an accident there, injuring a Minnesota domiciliary; Nevada law did not impose liability on the tavern owner).
194. 828 F. Supp. 346, 349 (E.D. Pa. 1993) (applying Pennsylvania's dram shop act against a New Jersey tavern owner for injury caused by one of his intoxicated patrons in Pennsylvania; noting that "the Defendant specifically targeted the Pennsylvania market and should, therefore, have expected and planned for possible suits under Pennsylvania law").
195. 712 F. Supp. 702, 706 (N.D. Ill. 1989) (applying Indiana's dram shop act against an Illinois tavern owner for injury caused by one of his intoxicated patrons in Indiana).
196. 842 S.W.2d 166,169 (Mo. Ct. App. 1992) (applying Missouri's anti-dram shop act relieving a Missouri tavern owner from liability for injury in Illinois caused by one of her drunk patrons).
197. 702 P.2d 836, 839 (Idaho 1985) (applying Nevada law and relieving a Nevada tavern owner of liability for injury in Idaho caused by one of its drunk patrons). The Idaho court found it significant that the Idaho victims also worked for a Nevada employer and were traveling to their Nevada employment at the time of the accident. The court concluded that, "[i]n light of the many contacts between all of the parties to this suit and the State of Nevada, and the expressed public policy of that state regarding liability of tavern keepers, . . . Nevada law should apply" because "[t]o do otherwise would result in an extra-territorial application of Idaho law to Nevada conduct, in direct contravention of Nevada law." Id. at 838.
198. 707 So. 2d 394, 397 (FIa. Dist. Ct. App. 1998) (applying Florida law imposing liability on car owner who rented the car in Georgia to a driver, who caused an accident in Florida, injuring a Florida domiciliary; Georgia law did not impose liability on the car owner).
199. 863 So. 2d 358, 362 (FIa. Dist. Ct. App. 2003) (applying Florida law imposing liability on car owner, who rented the car in Georgia to a driver who caused an accident in Florida, injuring a Florida domiciliary; Georgia law did not impose liability on the car owner).
200. 733 A.2d 1133, 1149-50 (N.J. 1999) (applying New York law imposing liability on car owner who rented car in New Jersey to a driver that caused an accident in New York, injuring a New Jersey plaintiff; New Jersey law did not impose liability on the car owner).
201. No. Civ. 05-82-B-K, 2005 WL 2428156, at *6 (D. Me. 2005) (applying Maine law imposing liability on Massachusetts car-rental company that rented car in New Hampshire to a California driver who caused accident in Maine injuring Quebec motorcyclist).
202. 825 N.Y.S.2d 458, 459-60 (App. Div. 2006) (applying New York law imposing liability on
203. Michigan car-rental company that rented car in New Jersey to a New Jersey driver who was involved in a single car-accident in New York causing the death of his New Jersey passenger).
204. No. Civ.A. 03C-10-010THG, 2005 WL 1653988, at *3 (Del. Super. Ct. Apr. 20, 2005) (applying Delaware law imposing liability on Maryland car-rental company that rented in Maryland a car involved in a two-car collision in Delaware injuring Delaware domiciliaries riding in the other car).
205. No. CV93-0062060, 1994 WL 149334, at *3 (Conn. Super. Ct. Apr. 6, 1994) (applying Connecticut law imposing liability on Massachusetts car-rental company that rented in Massachusetts a car involved in a two-car coilision in Connecticut injuring New York driver of the other car).
206. No. 4003463, 2007 WL 126933, at *5 (Conn. Super. Ct. Jan. 5, 2007) (applying Maine law, which did not impose liability on a car owner who rented the car in Maine to a Maine driver, who then drove to Connecticut and caused an accident there, injuring a Maine plaintiff; Connecticut law imposed liability on the car owner).
207. 864 A.2d 624, 628 (R.I. 2005) (applying Rhode Island law, which was the same as Massachusetts law and did not impose liability on a car owner who rented a car in Massachusetts to a Rhode Island driver whose daughter, in express prohibition of a clause in the rental contract, drove the car to New York and caused an accident there, injuring Rhode Island plaintiff; New York law imposed liability on the car owner).
208. 517 U.S. 559, 572-73 (1996) (holding that, although Alabama may consider evidence of the defendant's non-Alabama conduct in assessing the reprehensibility of the defendant's conduct, Alabama may not punish the defendant by fixing the amount of punitive damages for non-Alabama conduct that produced injuries outside of Alabama).
209. Id.
210. Besides being an objective rather than a subjective standard, this foreseeability requirement should be understood in a "spatial" sense and should not be confused with the foreseeability of substantive tort law. The pertinent question in conflicts law is not whether one should have foreseen the occurrence of the injury, but whether one should have foreseen that the injury would occur in the particular state in which the injury did occur. For example, one who operates a factory in close proximity to the border with another state should foresee that any harmful emissions from the factory may cause injury in the other state because the wind may blow in that direction.
211. See Rice v. Nova Biomedical Corp., 38 F.3d 909, 916, 919-20 (7th Cir. 1994) (applying Illinois law to a defamation action filed by Illinois plaintiff against Massachusetts defendant who defamed plaintiff by statements made in Massachusetts and then repeated in Illinois;
212. Illinois, but not Massachusetts, imposed punitive damages);
213. Ashland Oil, Inc. v. Miller Oil Purchasing Co., 678 F.2d 1293, 1321 (5th Cir. 1982) (imposing punitive damages on a Louisiana defendant for conduct in Louisiana that caused injuries to a Kentucky plaintiff in Mississippi and Kentucky; Louisiana did not allow punitive damages);
214. Cooper v. Am. Express Co., 593 F.2d 612, 613 (5th Cir. 1979) (awarding punitive damages in an invasion of privacy action under the law of the state of injury and victim's domicile (Alabama), even though the law of the defendant's domicile and place of conduct (Louisiana) prohibited such damages);
215. In re Air Crash Disaster at Wash. D.C, 559 F. Supp. 333, 337 (D.D.C 1983) (holding that airline was liable for punitive damages in case arising from a District of Columbia crash of an airplane;
216. airline did not properly de-ice before takeoff from an airport located on the Virginia side of the Virginia-D.C border, and Virginia (unlike D.C.) prohibited punitive damages).
217. The last two cases in Table 5 involved environmental torts, and the court in both cases applied the pro-plaintiff law of the state of injury rather than the pro-defendant law of the state of conduct. See Pakootas v. Teck Comineo Metals, Ltd. 452 F.3d 1066, 1081-82 (9th Cir. 2006) (holding that the federal Comprehensive Environmental Response, Compensation, and Liability Act applied to a leadzinc smelting plant, located on the banks of the Columbia River in British Columbia, which generated hazardous waste that was discharged into the river and carried downstream, eventually settling into a lake in Washington);
218. Nnadili v. Chevron U.S.A. Inc., 435 F. Supp. 2d 93, 98 (D.D.C. 2006) (applying District of Columbia law to activities at the defendant's gas station in Maryland that contaminated the plaintiffs' lands in D.C).
219. See Franchise Tax Bd. v. Hyatt, 538 U.S. 488, 490 (2003) (action by Nevada plaintiff against the State of California for conduct occurring in California and causing injury in Nevada; upholding Nevada's refusal to recognize California's sovereign immunity, noting that, as the place of injury and plaintiffs domicile, Nevada had more than the requisite contacts to constitutionally favor its own interests over those of the conduct state);
220. Ensminger v. Cincinnati Bell Wireless, LLC, 434 F. Supp. 2d 464, 466 (E.D. Ky. 2006) (refusing to honor Ohio's sovereign immunity in action filed against an Ohio state agency by a Kentucky domiciliary who suffered injury in Kentucky caused by the negligent conduct of the Ohio agency).
221. See Kuehn v. Children's Hosp., L.A., 119 F.3d 1296, 1302-03 (7th Cir. 1997) (decided under Wisconsin conflicts law;
222. action filed by the parents of a Wisconsin child who died in Wisconsin as a result of a California hospital's negligence in improperly shipping a package to Wisconsin containing the child's bone marrow; applying Wisconsin law, under which the action survived the child's death, rather than California law, under which the action did not survive);
223. Raflo v. United States, 157 F. Supp. 2d I, 4 (D.D.C. 2001) (applying D.C. law which (unlike Virginia law) did not limit the amount of damages in a medical malpractice action brought by a Virginia plaintiff charging that the defendant's misdiagnosis in Virginia caused injury in D.C);
224. Pietrantonio v. United States, 827 F. Supp. 458, 462 (W.D. Mich. 1993) (action by a Michigan domiciliary against a Wisconsin doctor who failed to diagnose lung cancer from an X-ray taken in Wisconsin; the court applied Michigan law, which (unlike Wisconsin law) did not limit the amount of damages, reasoning that Michigan had an interest in protecting its domiciliaries and that the patient did not go to Wisconsin except by referral from his Michigan doctor);
225. Lab. Corp. of Am. v. Hood, 911 A.2d. 841, 849-50 (Md. 2006) (action by a Maryland plaintiff against a North Carolina laboratory that misread a sample from an amniocentesis performed on the plaintiff in Maryland and sent the erroneous report to her Maryland obstetrician; the court applied Maryland law, which provided an action to plaintiff, rather than North Carolina law, which did not).
226. See Bankers Trust Co. v. Lee Keeling & Assoes., 20 F.3d 1092,1098 (10th Cir. 1994) (decided under New York conflict law; applying New York's pro-plaintiff law to a case arising from injury in New York sustained by a New York plaintiff and caused by the conduct of an Oklahoma oil and gas consultant in Oklahoma);
227. David B. Lilly Co. v. Fisher, 18 F.3d 1112, 1120 (3d Cir. 1994) (applying Delaware's pro-plaintiff law to Delaware plaintiffs action for legal malpractice committed outside Delaware by out-of-state attorneys);
228. Performance Motorcars of Westchester, Inc. v. KPMG Peat Marwick, 643 A.2d. 39,41-42 (N.J. Super. Ct. App. Div. 1994) (applying New Jersey's pro-plaintiff law to an action for cross-border accounting malpractice brought by a New Jersey-based corporation and arising out of an audit report prepared by defendant, a New York accounting firm, and sent to plaintiff in New Jersey; under New Jersey law (but not New York law), the plaintiff could maintain an action against the defendant).
229. See, e.g., Condit v. Dunne, 317 F. Supp. 2d 344, 355 (S.D.N.Y. 2004) (applying California's pro-plaintiff law rather than New York's pro-defendant law to a California congressman's defamation action against a journalist for statements made in television and radio talk shows broadcast from New York to a national audience; the court found that, although New York had an interest in regulating the conduct of journalists in New York, California also had an interest in applying its law to protect its citizens from defamation and that was "the most significant interest").
230. See Bombardier Capital, Inc. v. Richfield Hous. Ctr., Inc., Nos. 91-CV-750, 91-CV-502, 1994 WL 118294, at *3-4 (N.D.N.Y. Mar. 21, 1994) (applying Vermont's pro-plaintiff law to an action brought by a Massachusetts-Vermont corporation against New York defendants for fraud in the inducement of a contract resulting from conduct in New York and causing injury in Vermont).
231. See, e.g., Caruolo v. A C & S, Inc., 226 F.3d 46, 57-59 (2d Cir. 2000) (applying Rhode Island's pro-plaintiff joint and several liability law in an asbestosis action against an Illinois defendant filed by a Rhode Island plaintiff who was exposed to asbestos in New York);
232. Drinkall v. Used Car Rentals, Inc., 32 F.3d 329, 330-33 (8th Cir. 1994) (applying Iowa's pro-plaintiff law to impose liability on a Nebraska car rental company that rented a car in Nebraska to an unlicensed driver who caused an accident in Iowa, injuring an Iowa domiciliary);
233. Monroe v. Numed, Inc., 680 N.Y.S.2d 707, 708 (App. Div. 1998) (applying Florida's pro-plaintiff law to a loss-of-consortium action arising out of the death of a Florida child whose death during surgery in Florida was attributed to a defective medical device manufactured in New York by a New York defendant);
234. Brown v. Harper, 647 N.Y.S.2d 245, 246-48 (App. Div. 1996) (applying New York's pro-plaintiff law to impose liability on a Pennsylvania dealer who had sold car to uninsured driver, who caused New York accident that injured a New York domiciliary).
235. See, e.g., Bader v. Purdom, 841 F.2d 38, 38-41 (2d Cir. 1988) (applying Ontario law in an action by a New York minor bitten by defendants' dog in Ontario; defendants brought a third-party action against the minor's parents, claiming contribution and indemnification for their negligent supervision of the child; such claim was permitted by Ontario law, but not by New York law);
236. MascareUa v. Brown, 813 F. Supp. 1015, 1018-20 (S.D.N.Y. 1993) (third-party action by a New York defendant against a New Jersey corporation seeking contribution and indemnification for medical malpractice committed in New York by the New York defendant; applying New York law and allowing contribution, which was not available under New Jersey law);
237. Glunt v. ABC Paving Co., 668 N.Y.S.2d 846, 847 (App. Div. 1998) (case arising out of a New York traffic accident involving an Ohio victim, his Ohio employer, and a New York defendant; applying New York law, which allowed the New York defendant to obtain indemnification from the Ohio defendant who would be immune from indemnification under Ohio law).
238. 636 A.2d 1179, 1184 (Pa. Super. Ct. 1994).
239. Id. at 1180.
240. Id.
241. Id. at 1181-82.
242. Id. at 1181.
243. Id. at 1182.
244. Id. at 1181.
245. Id. In a subsequent decision, the court allowed the plaintiffs action to proceed against the Pennsylvania referring doctor. See Troxel v. A.I. duPont Inst., 675 A.2d 314, 324 (Pa. Super. Ct. 1996).
246. 849 F.2d 639, 643 (D.C. Cir. 1988);
247. see also Edwardsville Nat'l Bank & Trust Co. v. Marion Labs., Inc., 808 F.2d 648, 652 (7th Cir. 1987);
248. Castelli v. Steele, 700 F. Supp. 449, 454 (S.D. Ind. 1988);
249. Truck Ins. Exch. v. Tetzlaff, 683 F. Supp. 223, 226 (D. Nev. 1988);
250. Grover v. Isom, 53 P.3d 821, 823 (Idaho 2002);
251. Harper v. Silva, 399 N.W.2d 826, 830 (Neb. 1987).
252. Peter E. Nygh, The Reasonable Expectations of the Parties as a Guide to the Choice of Law in Contract and in Tort, in 251 RECUEIL DES COURS 269, 296 (1995) ("The expectation of compensation is... reasonable and fundamental, as is the converse expectation that the liability be foreseeable . . . .").
253. 647 S.W.2d 570, 579 (Mo. Ct. App. 1983), superseded by statute, Mo. REV. STAT. §537.053 (1986), as recognized in Auto Owners (Mut.) Ins. Co. v. Sugar Creek Mem'l Post No. 3976, 123 S.W.3d 183, 191 (2003).
254. Id.
255. 177- Id. at 576.
256. Id. at 577.
257. Id. at 577-78.
258. Id. at 578.
259. Id.
260. Percentages are rounded to the nearest whole number.
261. See SYMEONIDES, supra note 38, at 74-85.
262. See supra note 119.
263. In one case, Oyola v. Burgos, 864 A.2d 624, 626 (R.I. 2005), the forum's only contact was that it was the domicile of the plaintiff.
264. See supra p. 368-69 tbl. 5 (case 24) for discussion of this case.
265. Surprisingly, there is no universally accepted definition of forum shopping. See J. Fawcett, Products Liability in Private International Law: A European Perspective, 238 RECUEIL DES COURS 9, 96 (1993) ("Forum shopping is not a term of art.");
266. Richard Maloy, Forum Shopping? What's Wrong with That?, 24 QUINNIPIAC L. REV. 25, 26 (2005) ("[N]o court... has given a crystal-clear definition of the term 'forum shopping.'"). Black's Law Dictionary defines forum-shopping as "[t]he practice of choosing the most favorable jurisdiction or court in which a claim might be heard."
267. See BLACK'S LAW DICTIONARY 681 (8th ed. 2004). A jurisdiction may be favorable for procedural, substantive, logistical, or other reasons, and the motives for choosing a forum vary from case to case. According to one commentator, "the most common motive for forum shopping is selection of the law to be applied to the case." Mary Garvey Algero, In Defense of Forum Shopping: A Realistic Look at Selecting a Venue, 78 NEB. L. REV. 79, 88 (1999);
268. see also Emil Petrossian, In Pursuit of the Perfect Forum: Transnational Forum Shopping in the United States and England, 40 LOY. L.A. L. REV. 1257, 1264 (2007) ("[S]ome courts approach the issue of forum shopping by focusing on the substantive law that applies in the action.").
269. See, e.g., Algero, supra note 186, at 81 ("So what then is or should be forbidden or discouraged under the term 'forum shopping'? Perhaps it refers only to those egregious circumstances in which attorneys file suits in forums allowed by law, but inconvenient because of their lack of connection to the issues involved in the lawsuits.").
270. For additional examples, see Ferens v. John Deere Co., 494 U.S. 516,538 (1990), and Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 779 (1984).
271. In four cases, the forum was the plaintiffs home state, without any of the other three contacts.
272. Of these thirty-two cases, fifteen were filed in the plaintiffs home state and place of injury, seven in the defendant's home state and place of conduct, seven in the state of injury, and three elsewhere.
273. See infra p. 388 chart 9.
274. In one case, the state of the applicable law was the plaintiffs home state and place of conduct. See Dolan v. Sea Transfer Corp., 942 A.2d 29 (N.J. Super. Ct. App. Div. 2008) (case 24, supra pp. 355-56 tbl. 3). It had a pro-plaintiff law. Id.
275. See, e.g., supra note 20.
276. See SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 322-27.
277. See id. at 332-33 (showing that fifty-two percent of the cases applied a pro-plaintiff law and forty-eight percent applied a pro-defendant law). These findings are consistent with pro-defendant trends identified by other scholars in non-conflicts cases.
278. See, e.g., James A. Henderson, Jr. & Theodore Eisenberg, The Quiet Revolution in Products Liability: An Empirical Study of Legal Change, 37 UCLA L. REV. 479, 481-83 (1990) (describing declining plaintiff success in products liability cases in the 1980s);
279. Theodore Eisenberg & James A. Henderson, Jr., Inside the Quiet Revolution in Products Liability, 39 UCLA L. REV. 731, 734 (1992) (providing additional data confirming the earlier findings of declining plaintiff success rates, with the trends even more definite in the late 1980s, and concluding that "[t]he 1980s pro-defendant movement is not the result of sharp reversals in a few jurisdictions; rather, it is truly national").
280. See supra p. 349 tbl. 1 (cases 1-10) and text accompanying notes 37-41.
281. It may be worth noting that a comprehensive review of one of this Author's books has characterized this Author as "conservative," "traditional," and as placing too high a premium on the notion that conflicts law should be neutral and evenhanded toward plaintiffs and defendants. See Weinberg, supra note 15, at 1632-33, 1646, 1649, 1661, 1664.
282. The scenario in which the victim also had the ability to prevent or minimize the loss is addressed through the rules of contributory fault.
283. It may well be that this Author attributes too much significance to what the courts do. See Weinberg, supra note 15, at 1648 ("Symeonides acts on the principle that what courts do, and their measure of agreement in what they do, are phenomena to be taken very seriously indeed. Symeonides has the strong conviction that to glean truth from reality one has to handle a great deal of reality, and to do so with utmost care.").
284. See Symeon C. Symeonides, The First Conflicts Restatement Through the Eyes of Old: As Bad as Its Reputation?, 32 S. III. U. L.J. 39, 58-59, 72-74 (2007) (documenting how Professor Beale's adoption of territoriality as the exclusive choice-of-law principle was not justified by the case law of that time, and that, in drafting specific rules (such as the lex loci contractus rule), Beale ignored contrary judicial precedents). In the ALI discussion of the Restatement in 1928, Beale candidly admitted that the rule he proposed was "opposed to a majority of the cases."
285. See 6 A.L.I. PROC. 454, 458 (1927-1928).
286. See DAVID F. CAVERS, THE CHOICE OF LAW PROCESS 139-80 (1965).
287. Id. at 139. This principle is accompanied by an escape: "at least where the person injured was not so related to the person causing the injury that the question should be relegated to the law governing their relationship." Id.
288. Id. at 140, 141. Cavers also argued that the same rationale applies even if the victim is not domiciled in the state of injury but is instead domiciled in a state that has a lower standard of financial protection than the state of injury.
289. See id. at 144 ("[T]he financial protection a state has prescribed, being a part of its provision for the general security, is in part a sanction for wrongfully causing harm. As a consequence its purposes include elements of deterrence and retribution even though it may be couched in essentially compensatory terms. When the laws of the state of injury are viewed in this light, the restrictive laws of the plaintiffs home state tend to fade into irrelevance.").
290. Id. at 159 (italics omitted).
291. Id. at 159-61.
292. Id. at 161.
293. Id. at 160.
294. See id. at 160-66.
295. 286 N.E.2d 454, 457-58 (N.Y. 1972) (applying Ontario "guest-statute, " which barred suits by gratuitous guest-passengers against their host drivers, in an action brought against New York hostdriver by family of Ontario guest-passenger who was killed in Ontario accident).
296. 480 N.E.2d 679, 683-85 (N.Y. 1985).
297. See, e.g., Padula v. Lilarn Props. Corp., 84 N.Y.2d 519 (1994).
298. Neumeier, 286 N.E.2d at 457-58 (quoting Tooker v. Lopez, 24 N.Y.2d 569, 585 (1969) (Fuld, C.J., concurring)).
299. Schultz, 480 N.E.2d at 683.
300. See Bankers Trust Co. v. Lee Keeling & Assoes., 20 F.3d 1092, 1098 (Ioth Cir. 1994);
301. Kramer v. Showa Denko K.K., 929 F. Supp. 733, 741 (S.D.N.Y. 1996);
302. see also Hamilton v. Accu-Tek, 47 F. Supp. 2d 330, 337 (E.D.N.Y. 1999) ("In cases where the defendant's tortious conduct and the plaintiffs injury occur in different states 'the place of the wrong is considered to be the place where the last event necessary to make the actor Uable occurred.'" (quoting Schultz, 480 N.E.2d at 683)).
303. 286 N.E.2d at 458.
304. See cases cited supra note 213.
305. Neumeier, 286 N.E.2d at 458.
306. For a case applying the escape, see Stevens v. Shields, 499 N.Y.S.2d 351, 353-54 (Sup. Ct. 1986), applying Florida's pro-plaintiff vicarious liability law to a New Yorker's action against a Florida defendant arising from a New York accident, finding that Florida had a significant interest in applying its law to its domiciliaries, and that this would not impair New York's interest in protecting its residents from liability because a New York defendant was not involved in the case.
307. For a case refusing to apply the escape, see Buglioli v. Enterprise Rent-a-Car, 811 F. Supp. 105 (E.D.N.Y. 1993), affd, 999 F.2d 536 (2d Cir. 1993), applying New Jersey's pro-defendant common-law rule to a New Jersey plaintiffs action against a New York car-rental company that rented the car to a New Jersey driver who caused the New Jersey accident; a New York statute imposed liability on the car-rental company.
308. Act 1991 . No. 923, § I (adding Book IV to the Louisiana Civil Code).
309. For discussion of the tort provisions of this codification by its drafter, see Symeon C Symeonides, Loublana's New Law of Choice of Law for Tort Conflicts: An Exegesis, 66 TUL. L. REV. 677 (1992) [hereinafter Symeonides, Exegesis], and Symeon C Symeonides, La nuova normativa delia Louisiana sul diritto intemazionale privato in tema di responsabilità extracontrattuale, 29 RIV. DIRITTO INTERNAZIONALE PRIVATO E PROCESSUALE 43 (l993).
310. LA. CIV. CODE ANN. art. 3543 (2008). A third paragraph contains a unilateral exception to the effect that Louisiana-affiliated tortfeasors acting in Louisiana and causing injury in another state will not be subject to the law of the latter state.
311. Id.
312. This exception, which was not part of the draft submitted by this Author, was added during the legislative process. For a justified critique, see Russell J. Weintraub, The Contributions of Symeonides and Kozyris to Making Choice of Law Predictable and Just: An Appreciation and Critique, 38 AM. J. COMP. L. 511, 515-16 (1990).
313. The reasons for this politically-motivated exception are explained in Symeonides, Exegesis, supra note 217, at 713-14. The Puerto Rico Draft Code of Private International Law, which was drafted by this Author in 1991, contains a provision that is substantively identical to the part of the Louisiana article quoted in the text, but without the unilateral exception in favor of forum law. See Proposed Puerto Rico Civil Code, bk. VII, art. 40, available at http://www.codigocivilpr.net/.
314. The Draft Code is currently before the Puerto Rico legislature as part of a broader project to revise the Puerto Rico Civil Code. See Marta Figueroa-Torres, Recodification of Civil Law in Puerto Rico: A Quixotic Pursuit of the Civil Code for the New Millennium, ELECTRONIC J. COMP. L., May 2008, http://www.ejcl.org/121/art121-21.pdf.
315. LA. Civ. CODE ANN. art. 3546. For a discussion of the rationale of this article by its drafter, see Symeonides, Exegesis, supra note 217, at 735-49. The Puerto Rico Draft Code does not contain a separate article for punitive damages. This means that punitive damages conflicts are governed by Article 40 of the Draft Code, which applies to other conduct-regulating conflicts and which allows punitive damages more easily, i.e., whenever they are allowed under the law of either the state of conduct or the state of injury (in the latter case, subject to a foreseeability defense).
316. See AM. L. INST., COMPLEX LITIG.: STATUTORY RECOMMENDATIONS AND ANALYSIS § 6.06 (1994).
317. LA. CIV. CODE ANN. art. 3544(2)(b).
318. Id. art. 3542.
319. See Act effective Jan. 1, 2010, ch. 451, 2009 Or. Laws. For a comprehensive discussion of the new law by its drafter, see Symeon C Symeonides, Oregon's New Choice-of-Law Codification for Tort Conflicts: An Exegesis, 88 OR. L. REV. (forthcoming Feb. 2010).
320. See Act effective Jan. 1, 2010, ch. 451, §8(3)(c), 2009 Or. Laws ("If the injurious conduct occurred in one state and the resulting injury in another state, the law of the state of conduct governs. However, the law of the state of injury governs if....").
321. Id.
322. Id. § 8(4).
323. See Federal Law of 15 June 1978 on Private International Law, art. 48(1), translated in Edith Palmer, The Austrian Codification of Conflicts Law, 28 AM. J. COMP. L. 222, 234 (1980) [hereinafter Austrian PIL Act].
324. See Act of 12 Nov. 1965 on Private International Law, art. 33(1) [hereinafter Polish PIL Act].
325. See Act of 11 Apr. 2001, Stb. 2001, 1, art. 3(2), translated in Paul Vlas, Dutch Private International Law: The 2001 Act Regarding Conflict of Laws on Torts, 50 NETHERLANDS INT'L L. REV. 221, 223 (2003) [hereinafter Dutch PIL Act].
326. See Act of 4 Dec. 1963, No. 97, art. 15 (law of former Czechoslovakia, now in force in the Czech Republic and Slovakia).
327. See Astikos Kodikos [A.K.][Civil Code] 2:26 (Greece).
328. See Preliminary Title of the Civil Code as amended on 9 July 1974, Código Civil [C.C.] art. 9. (Spain).
329. See Law No. 10 of 1898, as amended on 21 June 2006 (Act on the General Rules of Application of Laws), translated in Ken Anderson, Translation of Japan's Private International Law: Act on the General Rules of Application of Laws, 8 Y.B. PRIVATE INT'L L. 427 (2006);
330. see also C.C. art. 17 (applying law of state of injury, unless occurrence there was unforeseeable, in which case the law of state of conduct governs).
331. See Federal Law of 18 Dec. 1987, art. 133(2), translated in Jean-Claude Cornu, Stéphane Hankins & Symeon Symeonides, Swiss Federal Statute on Private International Law of December 18, 1987,37 AM. J. COMP. L. 193, 228 (1989) [hereinafter Swiss PIL Act] (applying law of place of conduct, but if injury occurred in another state, applying that state's law if the tortfeasor should have foreseen the occurrence of the injury in that state).
332. But see id. arts. 135, 138-39 (giving plaintiffs a choice in certain cases).
333. See Civil Code of Quebec, S.Q., ch. 64, art. 3126 (as revised in 1991) (applying law of state of conduct, unless the injury occurred in another state and the actor should have foreseen its occurrence there).
334. But see id. art. 3129 (requiring the appulication of Quebec law for injuries sustained outside Quebec as a result of exposure to raw materials originating in Quebec);
335. id. art. 3128 (giving victim a choice in products liabiity cases).
336. CÓDIGO CIVIL PORTUGUÊS as amended in 1966, art. 45(2) [hereinafter Portuguese Civ. Code]. This provision is subject to an exception for some cases in which the parties have the same nationality or habitual residence. An identical provision is contained in Article 2097 of the Peruvian Civil Code of 1984, translated in Alejandro M. Garro, Introductory Note on the Codification of Conflicts Law in the New Peruvian Civil Code of 1984, 24 INT'L MATERIALS LEGIS. & PERSP. 997, 1011 (1985).
337. Einführungsgesetz zum BürgerUchen Gesetzbuche [Introductory Act to the Civil Code], May 21, 1999, BGBIJ at 1026, art. 40(1) (F.R.G.), amended by Federal Act of 1999 for the Revision of Private International Law, translated in Peter Hay, From Rule-Orientation to "Approach" in German Conflicts Law: The Effect of 1986 and 1999 Codifications, 47 AM. J. COMP. L. 633, 650 (1999) [hereinafter EGBGB]. This principle, known as Gunstigkeitsprinzip, is traceable to an 1888 decision of the German Reichsgericht.
338. See decision of 20 Nov. 1888, 23 ENTSCHEIDUNG EN DES REICHSGERICHTS IN ZIVILSACHEN [RGZ] 305.
339. Law No. 218 of 31 May 1995, Gazz. Uff., Supp. Ord. No. 128, June 3, 1995, translated in Andrea Giardina, Italy: Law Reforming the Italian System of Private International Law, 35 INT'L MATERIALS LEGIS. & PERSP. 760,779 (1996) [hereinafter Italian PIL Act].
340. In a judgment rendered on January 28, 1988, China's highest court held that a court may apply either the law of the state of conduct or the state of injury. See Xu Donggen, Chronique de jurisprudence chinobe, J. DR. INT'L 191 (1994). A Model Law of PIL drafted by the Chinese Society of PIL provides in Article 112 that the victim has the right to choose between the laws of the places of conduct or injury.
341. See Han Depie, Model Law of Private International Law of the People's Republic of China, 3 Y.B. PRIVATE INT'L LAW 349, 376 (2001). Article 125 allows the victim of defamation to choose from among the laws of the victim's domicile, habitual residence, or injury, or the place of dissemination of the defamatory material or the place of the injury.
342. Id. at 379.
343. See Law of 28 June 1994, §164(3), translated in Law on the General Principles of the Civil Code, PRAXIS DES INTERNATIONALEN PRIVAT-UND VERFAHRENSRECHTS (IPRAX) 439-42 (1996) (Estonia).
344. See Hungarian Decree No. 13 of 1979, 33 MK, art.33(1), translated In Francis A. Gabor, A Socialist Approach to Codification of Private International Law in Hungary: Comments and Translation, 55 TUL. L. REV. 63 (1980) [hereinafter Hungarian PIL Act] (providing for the application of the law of the state of conduct, unless the law of the state of injury is "preferable" to the victim).
345. See Kwang Hyun Suk, The New Conflict of Laws Act of the Republic of Korea, 5 Y.B. PRIVATE INT'L L. 99, 127 n.45 (2003) (describing supreme court cases allowing choice of law most favorable to victim).
346. See Article 1.43(1) of the Civil Code of the Republic of Lithuania (2000) [hereinafter Lithuanian Qvil Code], available at http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc-l?p-id=245495.
347. See Law of 15 July 1982 Concerning Conflicts with Foreign Laws, art. 28(1) (in force in the former Yugoslavia);
348. see also Act No. 402 of 30 Mar. 1978, art. 1102(4) (Serb.) (applicable to internal inter-republic conflicts and providing that damages for torts are governed by "that law which is most favourable for the injured party").
349. See Private International Law and Procedure Act 56/99 (13.07.1999), art. 30(1) (Slovn.).
350. See Code of Private International Law, No. 98-97 of 27 Nov. 1998, art. 70 (Tunis).
351. For a French translation, see 88 REV. CRITIQUE DR. INT'L PRIVÉ 382 (1999) [hereinafter Tunisian PIL Code], providing for the application of the law of the state of conduct, unless the victim requests the application of the law of the state of injury.
352. See Act No. 36.511 of 6 Aug. 1998 on Private International Law, eff. 6 February 1999, art. 32, translated in Venezuelan Act on Private International Law 1 Y.B. PRIVATE INT'L L. 341 (1999) [hereinafter Venezuelan PIL Act] (providing for the application of the law of the state of injury, unless the victim requests the application of the law of the state of conduct). The idea of allowing the tort victim to choose between the laws of the place of conduct or the place of injury has also been adopted in draft legislation pending in Mexico (2006 Draft) and Uruguay (2007).
353. See Cecilia Fresnedo de Aguirre & Diego Fernandez Arroyo, A Quick Latin American Look at the Rome II Regulation, 9 Y.B. PRIVATE INT'L L. 193, 197-98 (2007).
354. See CODE DE DROIT I NTERNATIONAL PRIVÉ (Loi du 16 juillet 2004), Moniteur Belge, July 27,2004, art. 99 § 2(1) [hereinafter Belgian PIL Code] (applicable to defamation; allowing plaintiff to choose between the laws of the state of conduct and, subject to a foreseeability proviso, the state of injury);
355. see also id art. 106 (applicable to direct actions against the tortfeasor's insurer, providing that the action will be allowed if it is allowed by either the law governing the tort or the law governing the insurance contract).
356. See CODE OF PRIVATE INTERNATIONAL LAW AND CIVIL PROCEDURE (Law No. 5718 of 27 Nov. 27, 2007), art. 35, translated in The 2007 Turkbh Code on Private International Law and International Civil Procedure, 9 Y.B. PRIVATE INT'L L. 583, 594-95 (2007) [hereinafter Turkish PIL Code) (applicable to defamation; allowing plaintiff to choose between the laws of the defendant's habitual residence or place of business and, subject to a foreseeability proviso, the states of the victim's domirile or injury);
357. id art. 34(4) (applicable to direct actions against the tortfeasor's insurer, providing that the action will be allowed if it is allowed by either the law governing the tort or the law governing the insurance contract);
358. id art. 36 (applicable to products liability; allowing plaintiff to choose between the laws of the defendant's habitual residence or place of business and the law of the state of the product's acquisition).
359. See Regulation 864/2007, On the Law Applicable to non-contractual obligations (Rome II), 2007 OJ. (L 199) 40, art. 7 (EQ [hereinafter Rome II] (environmental torts; applying the law of the state of injury, unless the plaintiff opts for the law of the place of conduct);
360. id. art. 6(3)(b) (allowing the plaintiff to choose between the otherwise applicable law and the law of the forum in certain cases involving anticompetitive restrictions);
361. id. art. 18 (authorizing a direct action against the insurer if such action is allowed by either the law applicable to the tort or the law applicable to the insurance contract).
362. See Swiss PIL Act, supra note 234, art. 138 (applicable to emissions; allowing victim to choose between the laws of the state of conduct and the state of injury);
363. id. art. 139 (injury to rights of personality; giving victims a choice from among the laws of the tortfeasor's habitual residence or place of business, and-subject to a foreseeability defense-the victim's habitual residence or the place of the injury);
364. id. art. 135 (allowing victims to choose between the laws of the state of the defendant's principal place of business and, subject to a defense, the state of the product's acquisition).
365. See Law No. 105 of 22 Sept. 1992 on the Settlement of Private International Law Relations, eff. 26 Oct- 1993, art. 112 [hereinafter Romanian PIL Act] (applicable to defamation; allowing victim to choose between the laws of the defendant's domicile or residence, and-subject to a foreseeability proviso-the plaintiffs domicile or residence, or the state of injury);
366. id. arts. 117-118 (applicable to unfair competition; applying the law of the state of injury but also allowing the victim to choose another law in certain cases);
367. id. art. 114 (applicable to products liability; allowing plaintiff to choose between the laws of plaintiffs domicile and the place of the product's acquisition).
368. See Italian PIL Act, supra note 238, art. 63; Quebec CIV. Code, supra note 235, art. 3128; Swiss PIL Act, supra note 234, art. 135(1); Turkish PIL Code, supra note 249, art. 36.
369. See Grazhdanskii Kodeks RF [GK] [CIVIL Code] art. 1221 (Russ.), translated in 4 Y.B. PRIVATE INT'L L. 349, 363 (2002) [hereinafter Russian CIV. Code].
370. See Tunisian PIL Code, supra note 246, art. 72.
371. See Romanian PIL Act, supra note 252, art. 114.
372. See Hague Convention on the Law Applicable to Products Liability, arts. 4-6 (1973), available at http://www.hcch.net/indexen.php?act= conventions.status&cid=84.
373. See David F. Cavers, The Proper Law of Producer's Liability, 26 INT'L & COMP. L.Q. 703, 728-29 (1977) (letting the plaintiff choose from among the laws of: (a) the place of manufacture; (b) the place of the plaintiffs habitual residence if that place coincides with either the place of injury or the place of the product's acquisition; or (c) the place of acquisition, if that place is also the place of injury);
374. Russell J. Weintraub, Methods for Resolving Conflict-of-Laws Problems in Mass Tort Litigation, 1989 U. III. L. REV. 129, 148 (giving both the victim and the tortfeasor a choice under certain circumstances);
375. Symeon C Symeonides, The Need for a Third Conflicts Restatement (and a Proposal for Tort Conflicts), 75 IND. L. REV. 437, 450-51, 472-74 (2000) (same notion but different choices).
376. See Portuguese Civ. Code, supra note 236, art. 45(2).
377. See EGBGB, supra note 237, arts. 40(1), 44;
378. Hungarian PIL Act, supra note 241, §§32-33;
379. Lithuanian Civil Code,supra note 243, art. 143(1); Tunisian PIL Code, supra note 246, art. 70(2).
380. See EGBGB, supra note 237, art. 41.
381. See Italian PIL Act, supra note 238, art. 62.1;
382. Venezuelan PIL Act, supra note 247, art. 32(2);
383. Rome II, supra note 250, art. 7 (applicable to environmental torts only).
384. See Dutch PIL Act, supra note 228, art. 3(2);
385. Quebec Civ. Code, supra note 235, art. 3126(1);
386. Russian Qv. Code, supra note 254, art. 1219(1);
387. Swiss PIL Act, supra note 234, arts. 133(2), 135, 137, 139, 142(2).
388. For a discussion of this principle in comparative conflicts law, see SYMEON C. SYMEONIDES, PRIVATE INTERNATIONAL LAW AT THE END OF THE 20TH CENTURY: PROGRESS OR REGRESS?, 56-59 (2000), Nygh, supra note 174, at 292-93, and Frank Vischer, General Course on Private International Law, 232 RECUEIL DES COURS 9, 119(1992).
389. Jan von Hein, Something Old and Something Borrowed, but Nothing New? Rome II and the European Choice-of-Law Evolution, 82 TM. L. REV. 1663, 1682 (2008).
390. See supra note 42.
391. See Symeon C Symeonides, The Conflicts Book of the Louisiana Civil Code: Civilian, American, or Original?, 83 TUL. L. REV. 1041, 1054-58 (2009);
392. Symeon C Symeonides, Private International Law Codification in a Mixed Jurisdiction: The Loubiana Experience, 57 RABELS ZETTSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRTVATRECHT 460 (1993).
393. See supra Part IV.A4. See generally James A.R. Nafziger, Oregon's Conflicts Law Applicable to Contracts, 38 WILLAMETTE L. REV. 397 (2002);
394. Symeon C Symeonides, Oregon's Choice-of-Law Codification for Contract Conflicts: An Exegesis, 44 WILLAMETTE L. REV. 205 (2007);
395. Symeonides, supra note 223.
396. See supra text accompanying notes 32-38, 199.
397. CURRIE, supra note 41, at 183;
398. see also id. at 180 ("The rules (of the traditional theory] have not worked and cannot be made to work But the root of the trouble goes deeper. In attempting to use the rules we encounter difficulties that stem not from the fact that the particular rules are bad,... but rather from the fact that we have such rules at all.").
399. See SYMEONIDES, CHOICE-OF-LAW REVOLUTION, supra note 9, at 424-37.
400. Id. at 207-08, 235, 259-61, 346 (proposing specific rules for intrastate tort conflicts and product liability conflicts).
401. For a review of rules proposed by other scholars for product liability conflicts, see SCOLES, HAY, BORCHERS, & SYMEONIDES, supra note 9, at 937-41, reviewing rules proposed by Cavers, Juenger, Kozyris, and Weintraub, and see also Robert A. Sedler, Choice of Law in Conflicts Torts Cases: A Third Restatement or Rules of Choice of Law?, 75 IND. L.J. 615 (2000), Robert A. Sedler, Rules of Choice of Law Versus Choice-of-Law Rules: Judicial Method in Conflicts Torts Cases, 44 TENN. L. REV. 975 (1977), and Bruce Posnak, The Restatement (Second): Some Not So Fine Tuning for a Restatement (Third): A Very Well-Curried Leflar over Reese with Korn on the Side (Or Is It Cob?), 75 IND. L.J. 561 (2000).
402. See supra notes 217-22 and accompanying text. The above rules are inapplicable to most products-liability conflicts, for which the Louisiana codification provides a separate rule.
403. See LA. CIV. CODE ANN. art. 3545 (2008). All of these rules are subject to an escape clause.
404. See id art 3547.
405. 274- See supra notes 218-19.
406. In loss distribution conflicts, the Louisiana codification requires the application of the proplaintiff law of the state injury in Pattern 2 cases (subject to certain conditions and escapes), but, unlike the cases discussed supra Part II.A, it does not require the application of the pro-plaintiff law of the state of conduct in the converse cases of Pattern 1.
407. See LA. CIV. CODE. ANN. art. 3544 (2008). In punitive damages conflicts, the codification, unlike many of the cases, requires the concurrence of two contacts in a state imposing punitive damages in order to allow punitive damages under that state's law.
408. Id. art. 3546.
409. For a favorable assessment, see Patrick J. Borchers, Louisiana's Conflicts Codification: Some Empirical Observations Regarding Decbional Predictability, 60 LA. L. REV. 1061, 1068 (2000), finding that the Louisiana codification "has improved... the predictability of decisions in conflicts cases."
410. See Symeonides, Exegesis, supra note 217, at 735-49 (describing the strong opposition of certain lobbyists to punitive damages).
411. For the function, uses, utihty, and style of escape clauses, see Symeon C Symeonides, Exception Clauses in American Conflicts Law, 42 AM. J. COMP. L. SUPP. 813 (1994)-
412. For a critique of escapes clauses commonly employed in Europe, such as in the Rome II Regulation, see Symeon C Symeonides, Rome II and Tort Conflicts: A Missed Opportunity, 56 AM. J. COMP. L. 173, 192-204 (2008).
413. 279- See supra notes 196-99 and accompanying text.
414. See Weinberg, supra note 15, at 1654 ("The argument is sometimes made that the defendant is unfairly surprised and cannot adequately structure its enterprise if it is to be stripped of its defenses under an interested state's laws. Yet a defendant's insurer is the paradigmatic actuarial expert, and has every opportunity to structure the insured's coverage accordingly. It has every opportunity to adjust the defendant's premiums to take into account this and other risks. Given the near universaliy of liability insurance among suable defendants, it is somewhat unreal to speak of 'unfair surprise' to tort defendants. They have insured against liability precisely because they anticipate it under some state's laws.").
415. CAVERS, supra note 200, at 141.
416. Weinberg, supra note 15, at 1654. In criticizing this Author's defense of neutrality and evenhandedness towards litigants, Professor Weinberg argues that in tort conflicts the two parties are not and should not be presumed to be equal.
417. Id at 1668. She notes that, before a plaintiff gets a chance to argue the choice-of-law question, the plaintiffs complaint must have survived a
418. Id. This means that "the tort defendant is a presumptive tortfeasor [and] that the plaintiff presumptively has suffered a legally cognizable injury at the defendant's hands," and should be given a chance to prove her allegations under a law that allows such proof.
419. Id. at 1668-69.
420. Obviously, allowing both parties to agree on the applicable law after the dispute arises is far less problematic. For example, in the United States, when neither party argues for the application of non-forum law, most courts will decide the case under forum law, even if the forum's choice-of-law rules would normally point to non-forum law. See SYMEONIDES ET AL., supra note 116, at 107-11.
421. See FRIEDRICH K. JUENGER, CHOICE OF LAW AND MULTISTATE JUSTICE, 8, 17, 37, 41, 54-61, 183-85 (1993).
422. Russell J. Weintraub, Functional Developments in Choice of Law for Contracts, 187 RECUEIL DES COURS 239, 271 (1984).
423. For a discussion of party autonomy and its limitations in contracts, see SCOLES, HAY, BORCHERS, & SYMEONIDES, supra note 9, at 947-87, and SYMEONIDES, surpa note 38, at 197-223.
424. For the ablility of contracting parties to choose the law that will govern future noncontractual disputes arising from a contract, see SCOLES, HAY, BORCHERS, & SYMEONIDES, supra note 9, §§1740 nn.2030, 18.1 n.18; SYMEONIDES, supra note 38, at 212-14.
425. See SCOLES, HAY, BORCHERS A SYMEONIDES, supra note 9, at 947-87;
426. SYMEONIDES, supra note 38, at 197-222.
427. See Symeon C Symeonides, Result-Selectivbm in Private International Law, 46 WILLAMETTE L. REV. (forthcoming Feb. 2010) (manuscript at 13, 20), available at http://ssrn.com/abstract= 133630; SYMEONIDES, supra note 264, at 38-40, 56-57.
428. See SYMEONIDES, supra note 264, at 38-40, 48-56.
429. See Symeonides, supra note 288.
430. See EGBGB, supranote 237,art. 18.
431. See Convention on the Law Applicable to Maintenance Obligations, Oct. 2, 1973, Oct. 1, 1977, arts. 4-6, available at http7/www.hcch.net/ indexen.php?act=conventions.text&cid=86 (choice between the lex fori and the law of the obligee's habitual residence, or the common national law of the obligor and the obligee);
432. see also Convention on the Law Applicable to Maintenance Obligations Towards Children, Oct. 24, 1956, arts. 1-3, available at http:// www.hcch.net/indexen.php?act=conventions.status&cid=37 (choice between the lex fori and the law of the child's habitual residence).
433. INTER-AMERICAN CONVENTION ON SUPPORT OBLIGATIONS, July 15, 1989, 29 INT'L MATERIALS LEGIS. & PERSP. 73, art. 6 (1990) (choice from among the laws of the habitual residence or domicile of either obligor or obligee).
434. See Belgian PIL Code, supra note 248, art. 74 (choice from three different laws);
435. crv. art. 311-18 (Fr.) (giving the choice directly to the child);
436. Quebec Civ. Code, supra note 235, art. 3094 (choice between the law of the domicile of the obilgee or the obilgor);
437. Tunisian PIL Code, supra note 246, art. 51 (allowing the court to choose from among four potentially different laws the one most favorable to the obligee; the four laws are those of the obligee's nationality or domicile or the obligor's nationality or domicile);
438. see ao Hungarian PIL Act, supra note 241, art. 46 (providing that, with regard to the status, family relationships, and maintenance rights of children living in Hungary, Hungarian law applies whenever it is more favorable to the child than the otherwise applicable law).
439. See Belgian PIL Code, supra note 248, arts. 90, 92 (giving owner a conditional choice between the state of origin and the state in which the property is found at the time of the claim).
440. For a comparable provision applicable to movable things claimed by usucaption or acquisitive prescription, see Romanian PIL Act, supra note 252, art 146.
441. See Regulation No 593/2008, On the Law Applicable to Contractual Obllgations (Rome I), 2008 OJ. (L 177) 6, arts. 6, 8 (EC). Similar provisions are found in the laws of many countries, including Austria, Germany, Japan, South Korea, Quebec, Romania, Russia, Switzerland, and Turkey.
442. See Symeonides, supra note 288 (manuscript at 13).
443. For the meaning of "conflicts justice" as opposed to "material justice," see Symeonides, supra note 46.