Choice of Law in the American Courts in 2018: Thirty-Second Annual Survey

Abstract

This is the Thirty-Second Survey of American Choice-of-Law Cases. It was 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 to students of conflicts law, both inside and outside of the United States. Its purpose remains the same as it has been in the previous 30 years: to inform, rather than to advocate.

This Survey covers cases decided by American state and federal appellate courts during 2018 and posted on Westlaw by December 31, 2018. Of the 1,456 appellate cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law — and in particular choice of law. This year, the Survey discusses or refers to 192 cases, which amounts to 13% of the cases reviewed.

The Survey proceeds in three parts. The first discusses cases involving the extraterritorial reach, if any, of federal statutes and some constitutional provisions, such as the Fourth and Fifth Amendments. It includes a major decision of the Supreme Court holding that foreign corporations may not be sued under the Alien Torts Statute and two intermediate court decisions involving cross-border shootings by U.S. Custom Patrol Officers. The second part deals with choice of law, both interstate and international, in torts, contracts, products liability, and virtually all fields or private law. The third part deals with the recognition of sister-state and foreign-country judgments and foreign arbitral awards.

Keywords: conflict of laws, choice of law, private international law, jurisdiction, extraterritoriality, foreign judgments, choice-of-law clauses, forum selection, products liability, torts, party autonomy, arbitration, consumer, employment, Full Faith and Credit, Alien Tort Statute, statutes of limitation

JEL Classification: K00, K10, K12, K13, K33, K40, K41