Choice of Law

A Baffling Characterization Decision

Characterization plays an important role in a court’s choice-of-law analysis. If an issue is characterized as a “contracts” issue, then the court will apply the choice-of-law rule for contracts to determine the governing law. If an issue is characterized as a “torts” issue, then the court will apply the choice-of-law rule for torts. Because the…

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Who Owns the Ferrari F50?

The Ferrari F50 is, by all accounts, a pretty amazing car. One website describes it as the “ultimate showcase of the infamous Italian marque” and “one of the most sought-after driving machines in the world.” Only 349 were ever made. Just last year, a Ferrari F50 sold at auction for roughly $3.8 million. All of…

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When Should Federal Common Law Govern Transnational Litigation?

The conventional wisdom is that transnational litigation “can trigger foreign relations concerns.” Because the federal government has primary responsibility for the United States’ relations with other nations, the question naturally arises whether federal law should govern such litigation even when neither a federal statute, nor the U.S. Constitution, nor a treaty is applicable. Currently, as…

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A Primer on State Law in Transnational Litigation

The procedural and substantive rules that U.S. courts apply in transnational litigation come from many sources, including the U.S. Constitution, international treaties, customary international law, federal statutes, federal rules, and federal common law (both preemptive and non-preemptive)—but also, state statutes, state rules, and state common law. This primer focuses on the underappreciated role of state…

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Side-Stepping the Dismal Swamp: A Reply to Roosevelt

In a recent post, we sought to call attention to what we see as two issues with the way the draft Restatement (Third) of Conflict of Laws embraces a specific theory of choice of law called the “two-step” approach. First, we suggested that there is a disconnect between the “two-step” approach and the Restatement’s black…

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Extraterritorial Jurisdiction and Conflict of Laws

In a forthcoming Article, I take the Supreme Court’s recent jurisprudence on the presumption against extraterritoriality and view it through the lens of conflict of laws. In so doing, I attempt to show how the presumption mirrors features of conflicts doctrine and makes some of the same mistakes conflict law already has made. This list…

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What the Restatement Actually Says: A Response to Brilmayer and Listwa

In a recent post, Lea Brilmayer and Dan Listwa argue that there is a contradiction in the draft Restatement (Third) of Conflict of Laws, for which I am the Reporter. They claim that the Restatement’s two-step model for choice of law is in fundamental conflict with its statement of blackletter rules, and they argue instead…

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A Theory-Less Restatement for Conflict of Laws

For the first time in over half a century, the American Law Institute (“ALI”) is drafting a new Restatement of Conflict of Laws. The world has changed a great deal since 1971 when the Restatement (Second) was published, growing far more interconnected—so the idea of a new Restatement, taking into account the last few decades…

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Multistate Defamation, Cross-Border Torts, and Choice of Law

Multistate defamation cases have always presented difficult choice-of-law problems, but the advent of the internet has exacerbated them. Nunes v. Cable News Network, Inc is a good example on point, besides being a very interesting case on other grounds. This post presents this case, but also examines how other countries resolve conflicts in cases of…

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Throwback Thursday: Joseph Story and the Comity of Nations

One of the most influential books on transnational litigation was written nearly two centuries ago by a sitting Justice of the U.S. Supreme Court. Joseph Story’s Commentaries on the Conflict of Laws, first published in 1834, synthesized foreign and domestic cases regarding conflict of laws and the enforcement of foreign judgments. Story endorsed international comity…

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Ingrid (Wuerth) Brunk

Vanderbilt Law School
ingrid.brunk@vanderbilt.eduEmail

William Dodge

George Washington University Law School
william.dodge@law.gwu.eduEmail

Maggie Gardner

Cornell Law School
mgardner@cornell.eduEmail

John F. Coyle

University of North Carolina School of Law
jfcoyle@email.unc.eduEmail

Rinat Gareev

Whitecliff Management
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León Castellanos-Jankiewicz

Institute for International and European Law
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Paul B. Stephan

University of Virginia School of Law
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Robin Effron

Brooklyn Law School
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Maryam Jamshidi

University of Colorado Law School
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Fikri Soral

Galatasaray University
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Gregg Cashmark

Vanderbilt Law School
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Hannah Buxbaum

Indiana University Maurer School of Law
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Symeon Symeonides

Willamette University College of Law
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Aaron D. Simowitz

Willamette University College of Law
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