When a dispute has a connection to more than one jurisdiction, and when the laws of those jurisdictions are materially different, a court must perform a choice-of-law analysis to determine which law to apply. To make this determination, a court will typically apply the choice-of-law rules of the jurisdiction in which it sits. Although choice-of-law rules vary significantly across U.S. states, many courts look to the Restatement (Second) of Conflict of Laws for guidance. The American Law Institute is currently in the process of drafting the Restatement (Third) of Conflict of Laws.
A Primer on Choice of Law
Choice-of-law rules are used to determine the rights, duties, and liabilities of persons involved in a case with a connection to more than one jurisdiction. In the United States, most choice-of-law rules are state law; the federal government rarely legislates in this area. Courts in the United States apply the same choice-of-law rules to international…
Continue ReadingA Tangled Mess in New Hampshire
Characterization plays an important role in conflict of laws. When the choice-of-law rules for contracts are different than the choice-of-law rules for property, a court’s decision to characterize an issue as sounding in “contract” or “property” will inevitably affect which jurisdiction’s law is applied. The New Hampshire Supreme Court grappled with the issue of characterization—though…
Continue ReadingU.S. Copyright Transfer Termination Rights as a Choice-of-Law Problem
A transfer of copyright, such as an assignment of copyright or a license of copyright, is often executed with transnational scope. Business transactions in most types of copyrighted works are increasingly global, and it is not surprising that parties want to conduct transactions in copyright for multiple countries. Transfers of copyright, including those that arise…
Continue ReadingChoice of Law in the American Courts in 2025
The thirty-ninth annual survey on choice of law in the American courts is now available on SSRN. The survey covers significant cases decided in 2025 on choice of law, party autonomy, extraterritoriality, international human rights, foreign sovereign immunity, adjudicative jurisdiction, and the recognition and enforcement of foreign judgments. This annual survey was admirably maintained by Symeon Symeonides for…
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