Choice of Law in the American Courts in 2010: Twenty-Fourth Annual Survey
101 Pages Posted: 11 Jan 2011 Last revised: 25 Jan 2011
Date Written: January 10, 2011
This is the Twenty-Fourth Annual Survey of American Choice-of-Law Cases. It is written at the request of the Association of American Law Schools Section on Conflict of Laws, and is intended as a service to fellow teachers and students of conflicts law, both within and outside the United States.
The Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2010. Of the 1,271 appellate conflicts cases decided during this period, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law - and, particularly, choice of law.
This has been an unusually rich year in choice-of-law developments. Some of the highlights include: Four decisions by the U.S. Supreme Court (on extraterritoriality, sovereign immunity, class actions, and the Hague Convention on International Child Abduction, respectively), and several circuit court decisions on the extraterritorial reach of federal laws; a constitutional amendment in Oklahoma purporting to prohibit its courts from using international law, foreign law, and Sharia law; three cases involving efforts to recover art lost during the Nazi era and also implicating federal affairs questions; several cases affirming class certification in consumer protection cases and one case holding that the application of one state's consumer credit law to soliciting out-of-state lenders was unconstitutional under the dormant Commerce Clause; a major decision by the California Supreme Court refining its comparative impairment approach and a richer than usual assortment of cases involving tort, contract, product liability and insurance conflicts, as well as domestic relations conflicts; and several opinions written by Judge Posner in his always interesting style, including one questioning the value of using foreign-law experts.
Keywords: Choice of law, conflict of laws, private international law, extraterritoriality, torts, products liability, party autonomy, choice-of-law clauses, choice of forum clauses, class actions, proof of foreign law, Alien Torts Statute, punitive damages, Nazi-looted art, Insurance conflicts, foreign affair
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