Conflict of laws can simply be defined as “whose laws (which forum or which sovereign) are we going to follow as we strive to litigate this case?” In other words, conflict of laws is also known as “choice-of-laws” which was covered briefly in Civil Procedure I.
Ultimately, our analysis will follow the analysis below:
- Which sovereigns have jurisdiction?
- Do multiple sovereigns law apply to the case?
Despite this straightforward definition, there are several choice of law theories. The unfortunate matter is that none of the states have unanimously adopted only one theory. So, it is vital to be well informed of which state applies what theories. Below is a brief overview of each theory and the terms associated with them.
The traditional theory is based on the phrase lex loci, which means “the law of the place.” The similar phrases are lex loci contractus meaning “the law of the place of the contract” and lex loci delicti meaning “the law of the place of the tort.
The goal of this approach was that there was a unitary (unified) conception of what the law is. It also recognizes that each sovereign has rights and control over its borders.
This approach is also shown in the First Restatement and has three steps:
- Characterize the Issue (contract or tort)
- Determine the connecting factor between the local rule and the claims
- Apply the law of the place identified by the connecting factor.
Where the contract or tort has a significant contract, the state may follow the rules of where those contacts are located.
2nd Restatement of Conflict of Laws
A combination of both traditional and policy-based theories in an attempt to combine the most practical means of resolving the issue.
Takes into account the interest of the government to determine which state’s laws should govern.
The original forum is the primary indicator of which laws will be followed.
Considers what factors led to the choice of forum.
Takes into account any combination of the theories except for the traditional theory.
- Comity – When one jurisdiction is not required to, but accepts the law of another jurisdiction.
- Vested Rights – When you have a claim to one state, then you have a claim in another.
- Domicile – Where an entity resides.
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.