Temporal Choice-of-Law Clauses

Abstract

When a choice-of-law clause selects the “laws” of a particular jurisdiction, it is not always clear whether it operates to select those laws (1) as they existed at the time the contract was signed, or (2) as they exist at the time of the litigation. When the choice-of-law clause is silent on this issue—as it almost always is—the court must craft an interpretive default rule that reflects majoritarian preferences relating to choice of law and time.

This Essay argues that courts should interpret the word "laws" to select the laws of the chosen jurisdiction as they exist at the time of litigation. It refers to this interpretive rule as the canon of evolving law. This canon makes it unnecessary for a court to engage in the costly project of determining the content of a body of law at a fixed date in the past. It is consistent with the preferences of most contracting parties as revealed in published decisions. It aligns with the views of most scholars. And it recognizes that most contract drafters do not conduct extensive research into the laws of the chosen jurisdiction before writing a choice-of-law clause into their agreements.