Oregon's New Choice-of-Law Codification for Tort Conflicts: An Exegesis

Abstract

This Article discuses Oregon’s new choice-of-law codification for torts and other non-contractual claims, which went into effect on January 1, 2010. This the first codification of this interesting but difficult subject in a common-law state of the United States, and the second one after the 1991 codification of the civil-law state of Louisiana. The author has served as the principal draftsman of both codifications.

Although the process of drafting the Oregon codification took considerable and respectful account of the experience of other countries, the codification is based primarily on the American experience since the choice-of-law revolution. Indeed, it is a codification of the solutions developed by American courts in the last fifty years.

The codification seeks an appropriate equilibrium between the competing values of certainty and flexibility. It provides certainty through specific rules that clearly designate the applicable law in several patterns of cases, but only those cases for which the case law has produced fairly uniform and uncontroversial solutions. It also provides a good measure of flexibility by: (1) relegating the remaining cases or issues to a flexible approach that merely lays down parameters for judicial choice rather than prescriptions of specific results; and (2) providing three escape clauses authorizing courts to deviate from the pre-designated law in appropriate cases.

The codification is reproduced in an Appendix at the end of the Article.

Keywords: Choice of Law, Conflict of Laws, Private International Law, Codification, Torts, Products Liability, Noncontractual obligations

JEL Classification: K10, K13, K33, K40, K41