Clause Confusion (Part II)
In a prior post, I showed that lawyers sometimes fail to distinguish choice-of-law clauses from forum selection clauses. In this post, I provide several examples of cases where judges made precisely the same mistake. In some of these cases, these errors were harmless. In others, they were not. Harmless Error There are a multitude of…
Continue ReadingA Costly Drafting Mistake
When I teach Conflict of Laws, I spend a lot of time showing my class how to draft a good choice-of-law clause. It’s not hard. Everything you need to know is laid out in the Primer on Choice-of-Law Clauses. Unfortunately, these instructions are not always followed. In one recent case, Pool Scouts Franchising LLC v….
Continue ReadingOptionality in Choice of Law
Choice-of-law clauses are sometimes described as tools for reducing legal uncertainty. This characterization, while correct, is incomplete. In cases where the suit is brought in a jurisdiction other than the one named in the choice-of-law clause, it is sometimes more accurate to think of the clause as an option. Either litigant may, if it so…
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