Choice of Law in the American Courts in 2012: Twenty-Sixth Annual Survey
92 Pages Posted: 13 Jan 2013 Last revised: 14 Jan 2013
Date Written: January 13, 2013
This is the Twenty-Sixth Annual Survey of American Choice-of-Law Cases. It is intended as a service to fellow teachers and students of conflicts law, in the United States and abroad.
Of the 4,300 cases decided in 2012 by state and federal courts, this Survey reviews 1,225 appellate cases, focusing on those cases that may contribute something new to the development or understanding of conflicts law, particularly choice of law. Highlights include: ▸ Numerous cases exemplifying the valiant efforts of state courts, and some lower federal courts, to protect consumers, employees, and other presumptively weak parties from the Supreme Court’s ever-expanding interpretation of the Federal Arbitration Act; ▸ A few cases enforcing choice-of-law clauses unfavorable to their drafters, and many more cases involving deadly combinations of choice-of-law and choice-of-forum clauses; ▸ Several interesting products liability cases, and other tort conflicts, including maritime torts and workers’ compensation claims by professional football players; ▸ The first appellate case interpreting the recent amendments of the anti-terrorism exception to the Foreign Sovereign Immunity Act (FSIA); ▸ The first cases holding unconstitutional the Defense of Marriage Act (DOMA); ▸ A Massachusetts case holding that an undissolved Vermont same-sex union was an impediment to a subsequent same-sex marriage in Massachusetts; ▸ An Arizona case holding that a Canadian same-sex marriage was against Arizona’s public policy, but — unlike other cases — also holding that the trial court had jurisdiction to annul the marriage and divide the parties’ property; ▸ The first case in decades upholding a foreign marriage by proxy; ▸ A case upholding, on First Amendment grounds, an injunction against Oklahoma’s “Anti-Shari’a” Amendment; and ▸ A case refusing to recognize a Japanese divorce, custody, and child support judgment rendered in a bilateral proceeding because the husband did not receive notice of a subsequent guardianship proceeding.
Keywords: choice of law, arbitration, conflict of laws, private international law, forum selection, choice of forum, product liability, maritime torts, employment contracts, foreign law, foreign judgments, same-sex marriage, extraterritoriality, torts, contracts, insurance
JEL Classification: K10, K12, K13, K19, K33, K41
Suggested Citation: Suggested Citation