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 ReadingClause Confusion (Part I)
There are many things in life that resemble something else. Some people struggle to distinguish alligators from crocodiles. Others have a hard time telling the difference between butterflies and moths. I myself cannot taste the difference between Coke and Pepsi… a fact that horrifies my family. All of these mistakes are both understandable and forgivable….
Continue ReadingSafari Choice-of-Law Clauses
In June 2026, I went on a safari in Tanzania with my family. We went on a hot air balloon ride over the Serengeti, visited a Masai village, and saw all of the Big Five. Before we embarked on these adventures, we were asked to sign an Assumption of Risk, Waiver of Liability, and Indemnification…
Continue ReadingSovereign Immunity and Choice-of-Law Clauses
On its face, a choice-of-law clause selecting the laws of the United States (or a state within the United States) may seem irrelevant to whether a foreign nation has waived its sovereign immunity in U.S. courts. Over the years, however, a number of U.S. courts have held that a choice-of-law clause may, in fact, function as an implied…
Continue ReadingThe Many Uses of the Choice-of-Law Clause
In prior posts, I have written about the things that a forum selection clause can and cannot do. In this post, I do the same for choice-of-law clauses. Among other things, a choice-of-law clause may be invoked to: Select a law to govern the contract and claims related to the contract; Provide support for the…
Continue ReadingIdiosyncratic Approaches to Enforcing Choice-of-Law Clauses
On December 16, 2025, the Sixth Circuit decided Andujar v. Hub Group Trucking, Inc. The issue presented was whether the Tennessee Supreme Court had adopted Section 187 of the Restatement (Second) of Conflict of Laws as the test for determining whether a choice-of-law clause should be given effect as a matter of Tennessee common law….
Continue ReadingDim Sum Bonds, Panda Bonds, and Dispute Resolution
China’s push to internationalize the renminbi (RMB, or yuan) since 2008 has led to the growing share of RMB-denominated bonds in the international bond market. So-called “panda bonds” and “dim sum bonds” are variants of RMB-denominated bonds. Panda bonds are onshore RMB debt issued in China by entities domiciled outside mainland China. Overseas issuers use…
Continue ReadingThe Marginal Utility of Choice-of-Law Clauses
I spend a lot of time researching and writing and thinking about choice-of-law clauses. So much so that I sometimes worry that I’ve fallen victim to a cognitive bias known as the law of the instrument or (more colorfully) Maslow’s Hammer. This bias arises when a person acquires a specific skill and thereafter looks for…
Continue ReadingOpting Out of Federal Law II: Foreign Choice-of-Law Clauses
In a prior post, I examined when a choice-of-law clause selecting the law of a U.S. state may be used to avoid federal laws. In this post, I consider whether a choice-of-law clause selecting the law of a foreign country may be used to accomplish this same goal. The post first examines situations where the…
Continue ReadingOpting Out of Federal Law I: State Choice-of-Law Clauses
Most provisions of federal law are mandatory. One cannot opt out of the tax code, the wire fraud statute, or civil rights laws. There are, however, a handful of federal laws that are not mandatory. These laws expressly state that they shall not apply if private actors write language into their contracts opting out. A…
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