Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

Question I Introduction Butler v. Stagecoach Group involved the appeals in eight related tort actions from a New York State Supreme Court holding that the law of Ontario, Canada governed the suits in question. The case arose when a bus carrying a Windsor, Ontario hockey team to a game in upstate New York collided with a tractor-trailer parked along the side of an upstate New York road. The injured bus passengers, some of whom were killed in the crash, brought tort actions against the bus driver, the bus company and its affiliates, the tractor-trailer operator, and various entities associated with the ownership and operation of the tractor-trailer. The point at issue in this appeal is whether the law of New York or the law of Ontario applies to this case. Ontario law caps individual damages for pain and suffering at 326,000, while New York law does not impose any limits on a plaintiffs recovery for pain and suffering in tort actions. The trial court ruled that the law of Ontario applied to the case. Plaintiffs appealed. The Appellate Division upheld the lower courts ruling. The appellate court quickly concluded that this case involved an actual rather than false conflict, and proceeded analyze the choice of law question based on the New York State choice of law rules established in Neumeier v. Kuehner. The court held that the first Neumeier rule, which states that whenever both parties are domiciled in the same jurisdiction, the court should apply the rule of that jurisdiction, applies to the suits between the plaintiffs and the busdefendants, all of whom were commonly domiciled in Ontario. With respect to these suits, then, the Ontario law damage cap properly applied. The court then ruled that the third Neumeier rule applies to the actions against the truck-defendants. The third Neumeier rule holds that when the plaintiff and defendant are domiciled in different jurisdictions (and where the place of the injury
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is not the defendants domicile and its law doesnt protect defendants, or where the place of the injury is not the domicile of the plaintiff and its law doesnt protect plaintiffs) the law of the place of the injury should apply unless applying another jurisdictions law would advance the substantive purposes of the locuss law without impairing the workings of the multi-state system or creating uncertainty for litigants. The court concluded that this case fell within the exception to the third Neumeier rule and that Ontario law applies because even though applying Ontarios damage cap would not advance the aims of New Yorks competing law, it would also not undermine the locuss permissive damage rule, and in any case would promote certainty for the parties. Finally, the court concluded that the application of Ontarios damage cap was not barred by the public policy exception. The court reasoned that applying Ontario law would not violate New Yorks public policy because since plaintiffs contacts with New York were limited and casual, the application of Ontario law to Ontario domiciliaries would not implicate New York public interests. I. The Courts Application of New Yorks Choice of Law Rules A. Is there an Actual Conflict? The court began its analysis by concluding, without discussion, that there was an actual conflict between New York and Ontario law in this case. Under the modern interest analysis approach to choice of law, this is a particularly important issue because correctly identifying false conflicts allows courts to avoid applying the laws of a jurisdiction that has no actual interest in its laws governing the case, and therefore might deserve a more thorough analysis. Whether or not an actual conflict of laws exists turns on whether or not, in light of the purposes of the apparently conflicting rules, the interests of more than one jurisdiction are implicated by the choice of applicable law. Legislative history is most useful in making such
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determinations, but in the absence of such information regarding the New York and Ontario recovery rules at issue here, we might consider a variety of possible purposes served by the New York and Ontario recovery rules. The New York rule allowing for unlimited recovery could be viewed as a measure designed to protect plaintiffs. Under this approach, New York could be seen as having an interest in protecting the interests of injured New York plaintiffs. Since the plaintiffs here are not New York residents, it would seem as though New York would have no interest in applying its recovery law to this case, and Ontario law should prevail. This result would be particularly

appropriate in light of the fact that the Ontario damage cap is likely premised on a desire to protect Ontario defendants and insurance companies, which indicates that Ontario has a strong interest in its law governing the case against the bus-defendants. On this view of the purpose of the New York law, however, the case against the truckdefendants may be what Currie called an unprovided for case. Ontario has little interest in protecting Pennsylvania defendants against unlimited liability, but New York also has little interest in protecting the interests of Canadian plaintiffs with its unlimited recovery rule. In this scenario, there are a variety of possible solutions. First, the New York court might choose to apply its own law because applying the law of the forum is convenient, preserves judicial resources, and because it would be reasonable to subject all parties that have purposefully placed themselves in New York to New York law. Second, the court could choose to apply Ontario law to the Canadian plaintiffs since this would in effect place them in no worse position than if they had never left Canada. Finally, the court could opt for the better law approach, which would urge it to apply the law that produced the most just solution to the underlying socio-economic problems implicated by the case. In doing so, the court might consider the value of the inter3

Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

state trucking industry; its potential ability to insure itself against unpredictable and limitless liability, if New York law were to apply; the general need for international travelers to know they will be compensated for injuries suffered abroad; and the fact that under normal circumstances the plaintiffs in this case, as Canadians, never would expect to be able to collect unlimited damages in a tort action to which they would be a party. An alternative approach to the false conflict question might be to characterize the New York recovery law as conduct regulating in that its purpose is to promote safe driving on New York roads by imposing limitless liability on tort defendants. On this view, it would not matter where the plaintiffs or defendants are domiciled; New York would have an interest in applying its own law since the accident occurred on New York roads, and application of New Yorks limitless recovery rule might encourage safer driving on New York roads in the future. On this approach, the choice between New York and Ontario law here would seem to present a real conflict. New York has an interest in applying its own law in order to promote safety on New York roads, but Ontario has a clear interest in applying its limited recovery rule to the case against the busdefendants, who are Ontario domiciliaries, and are to focus of Ontarios defendants protecting limited recovery rule. In the latter interpretation of the New York laws purpose, however, the case against the truck-defendants might present a false conflict because since the defendants are not domiciled in Ontario, Ontario would seemingly have no interest in applying its own law while New York would still have an interest in applying its law to tort actions arising from accidents on New York roads. Even if the Ontario law was viewed as encouraging particularly careful conduct by plaintiffs by limiting their recovery for injuries they might suffer through no fault of their own,

Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

since the plaintiffs conduct here occurred in New York and not Ontario, the latter would still have little interest in applying its law. On this analysis, the courts holding that this case presents a real conflict, with respect to both the action against the bus-defendants and the action against the truck-defendants, is curious. The court concluded that damage recovery laws are loss-allocating, and if that is so, it seems that the case presents a false conflict, since New York has little interest in protecting Ontario plaintiffs, while Ontario has an interest in protecting Ontario defendants. Granted, this point does not change the courts result, but it does call the courts choice of law analysis into question. Of course, determining the purpose of ostensibly conflicting laws involves significant discretion on the part of the judge, and could be condemned as a legal fiction. In many ways, interest analysis is no more predictable and provides no more meaningful limits on judicial discretion to choose to apply whichever law they choose than does the traditional approach complete with its so-called escape devices. Many purposes can be reasonably attributed to any law, and constitutional interpretation literature in particular addresses the hazards of trying to divine what a legislature intended by the laws it passed. Moreover, most laws are the product of compromise between competing interests, and it would therefore be fictitious to attribute any particular purpose to such laws. Nevertheless, the courts interest analysis approach whether correct or not could be justified in that interest analysis encourages courts to avoid the most aggressive aspects of the traditional approach, which encourages courts to aggressively apply the laws of other jurisdictions. The attempt to find false conflicts creates at least the perception of restraint and legitimacy in a courts being forced to choose to apply choice of law rules when a real conflict is unavoidable.
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B. Substance or Process? The Butler court concluded that laws limits noneconomic damages are substantive rather than procedural, and therefore the forums law does not necessarily apply. This is an important preliminary point since if damage limitations were characterized as procedural, the law of the forum would apply and choice of law rules would be irrelevant.

C. Conduct-Regulating or Loss-Allocating Following Cooney, the Butler court distinguished between conduct-regulating and lossallocating laws. Finding that the damage limitations at issue were loss-allocating, the court proceeded to consider the relevant choice of law rules under Neumeier. When the purpose of a particular law is to regulate conduct, it is appropriate to apply the law of the locus of the tort, because the jurisdiction in which the injury occurred has the most significant interest in regulating the conduct that caused the injury. When the law is loss-allocating, however, the interests of the jurisdiction in which the injury occurred are not necessarily furthered are impeded by applying or rejecting its own rule of law, and therefore the Neumeier rules, which consider which jurisdiction has the most substantial interest in having its law applied to the case based on the nature of the laws and the relation of each party to each jurisdiction, govern the choice of law. The courts characterization of the damage limitation rule as loss-allocating is likely based on the fact that the rule at issue does not regulate the parties conduct prior to the act by establishing duties or standards of care, but instead comes into play only after an injury has occurred to regulate remedies for past wrongs. By characterizing the law as loss-allocating rather than
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conduct regulating, the court can easily conclude that the rules at issue here are in fact conflicting since New Yorks interest in allocating losses to defendants is at odds with Ontarios desire to allocate much of those losses to plaintiffs. (In any case, as I pointed out earlier, any such characterization of the conflict seems to miss the point that New York has no interest in allocating losses to Canadian or Pennsylvanian defendants, and Ontario only has an interest in protecting the Canadian defendants, while its interest in protecting the truck-defendants seems to me nonexistent). However, the courts characterization here seems troubling because without a doubt loss allocation rules are designed to affect pre-injury conduct. Indeed, this is one of the chief policy functions of allocating the burdens of a particular injury between plaintiffs, defendants, insurance companies, and the public at large. The loss-allocation/conduct-regulation dichotomy, them, seems a bit too fictitious. In this way, the courts modern interest analysis approach seems little better than the traditional rules that could used characterization escape devices to get the choice of law result they wanted. What surprises me here is why in the world a New York court would even go through the trouble of trying to get a particular result especially the defendant protecting result reached under Ontario law. New York courts should care much about whether Canadian and Pennsylvanian defendants are protected from excessive damages. In the absence of compelling interests forcing it to take a closer look at the matter, the court should be most concerned with achieving a speedy result, which in this case would be to just straightforwardly apply the law of the forum with which it is most familiar. Indeed, if anything the New York court should be interested in applying its own laws so as to further discourage unsafe driving practices on New York Roads.

Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

The courts characterization of the damage cap as loss-allocating may be based on its desire to reach the Neumeier inquiry, which under Cooney is inapplicable to loss-allocating rules. Nevertheless, the courts desire to reach the choice of law inquiry is puzzling since this only complicates its job. Characterizing the rules as conduct-regulating and applying New York law as the situs of the tort seems much simpler, predictable, expectation reinforcing, and just. Moreover, it isnt inconceivable that New York might maintain a paternalistic attitude towards all plaintiffs regardless of their place of domicile, and that New York might hold its own courts and justice system to a sort of universal standard and insure adequate recovery for all plaintiffs invoking the power of New York courts.

D. The Neumeier Rules Once it concluded that the damage limitation rules were loss-allocating, and that therefore, the law of the situs should not be automatically applied, the Butler court moved on to apply the Neumeier rules to the cases against the Canadian and Pennsylvanian defendants.

1. The Action Against the Bus-related Defendants Since the case against the bus-defendants involved both plaintiffs and defendants who are Ontario domiciliaries, the court held that the first Neumeier rule applied to those actions. This rule states that when all parties share a common domicile, the court should apply the law of that jurisdiction in this case, Ontarios limited recovery rule. The first Neumeier rule is typically justified as an ordinary expression of interest analysis in that the jurisdiction in which both parties are domiciled is presumed to have the most significant interest in the case, either with respect to regulating the conduct of persons subject to that
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jurisdictions laws or with respect to regulating the legal relationships between those parties and the allocation of losses among them. This is certainly appropriate with respect to loss-allocating rules; though if a rule is conduct regulating it is certainly reasonable to suppose that another jurisdiction in with the conduct occurred may have a more significant interest in its law being applied. There is some reason to question whether the Neumeier rules should apply to this case at all. Neumeier reversed the Babcock line of cases that focused on applying the law of the center of gravity based on the relative contacts and interests of each jurisdiction, and Tookers express interest analysis approach. Arguably, Neumeier rested on the fact that the plaintiff had no connection to New York other than its fortuitous presence in a New Yorkers car. The New York court, then, was merely being used as a convenient forum for litigation based on its own favorable guest statute. On such facts, the New York court declined to apply Babcock and Tookers more fluid interest or contact analysis and instead created categorical rules that would see to it that in that case would not be subject to plaintiff-friendly New York law. Subsequent cases applying Neumeier, like Schultz and Conney also involved actions in which the plaintiffs suing in New York courts seemed to be based not on the plaintiffs connection to New York but on the opportunity to take advantage of New Yorks plaintiff friendly recovery rules. In this case, however, while the plaintiffs are not New York domiciliaries, they and the occurrence from which the action arose might be said to have sufficiently strong connections to New York as to justify the use of the more fluid and forum friendly interest analysis used in Babcock and Tooker instead of the more rigid Neumeier rules. The plaintiffs presence in New York was not merely fortuitous or casual; they only reason they were present in the State, and the only reason the accident ultimately occurred was because the plaintiffs had intentionally
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travelled to New York to play a hockey game.

The bus-defendants too purposely placed

themselves in the State in order to transport the plaintiffs to the game and thereby may have established significant connections to the State themselves. Certainly it would be reasonable to expect both eh plaintiffs and defendants that intentionally placed themselves in New York would reasonably anticipate being subject to New York law while in the State. On this analysis, the result reached by applying the first Neumeier rule to the case against the bus-defendants seems illogical and unsupported by party expectations.

2. The Actions Against the Truck-related Defendants With respect to the action by the Canadian plaintiffs against the Pennsylvania truckdefendants, the court held that the third Neumeier rule applies. While the rule typically requires the court to apply the law of the situs of the tort to cases where the plaintiff and defendant are domiciled in different jurisdictions, the court held that this case fits within the narrow exception to the rule that allows the court to apply another jurisdictions law when doing so would advance the relative substantive law purposes without impairing the smooth working of the multi-state system or creating too much uncertainty for the litigants. The court admitted that applying Ontarios damage limitation rule would not further the substantive purposes of New Yorks unlimited damages rule (big surprise), but nevertheless held that since applying Ontario law would not frustrate New York interests or produce excessive uncertainty, Ontario law should apply. The courts use of the third rules exception is problematic for several reasons. First, there seems to be good reason not to apply the exception to this case. The exception to the third rule appears to be a means for avoiding the categorical application of the law of the situs in true
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Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

conflict cases where doing so serves no constructive purpose and where applying the law of another related jurisdiction would have significant substantive value without prejudicing the parties. In this case, however, there are several positive reasons for following the New York rule and ignoring the exception entirely. First, if the damages rule is conduct regulating, or even if conduct regulation is only an incidental consequence of a primarily loss allocating rule, new York has a strong interest in imposing severe liability on defendants that drive dangerously in the State; the plaintiffs were Canadian in this case (and even that doesnt mean New Yorkers should care), but they could easily be New Yorkers the next time a truck driver engages in such recklessly dangerous driving practices. While a New York plaintiff would not have a problem collecting the full measure of his noneconomic injuries as New York law would almost certainly apply to such a case, the injury would have already been done, an injury that New York could perhaps have prevented by applying its plaintiff-friendly recovery rules to this case. Second, as the court in Schultz observed, applying the law of the situs in cases where neither party is domiciled either together or in the situs jurisdiction is supported by the need to protect medical creditors that treated the plaintiffs in the situs following the injury. This would be particularly apt in this case, where the situs rule insures plaintiffs will be able to cover the full measure of their injuries and pay their medical providers in full, while the alternative Ontario rule imposes a strict limit on damages that might undermine this goal. Third, regardless of how the damage rule is classified, New York arguably has a strong interest in seeing that justice (as New York sees it that is, unlimited recovery for noneconomic injuries) is done to parties that come to New York and are injured there. While applying Ontario law to countless Canadian tourists and business people who come to New York and might be injured by out-of-State defendants may not undermine the reasonable expectations of the Canadian plaintiffs, it may, and in any case
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Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

applying the more plaintiff-friendly New York rule would certainly make a statement to the affect that those who come to New York can feel rest assured that their visit is appreciated and their interests protected. Even if using the exception to the third rule is not entirely inappropriate (perhaps in light of the fact that New Yorks interests in applying its law to parties that would not be subject to New York jurisdiction or concerns except for the fortuitous fact that their vehicles happened to collide in New York), the way the court comes out on this point is troubling. The court says that

applying Ontario law does not further the underlying policies of the relevant substantive law. That may be the understatement of the year! Applying Ontarios law does not merely not advance the substantive policies of New York law; if positively undermines them. The court tries to dismiss this reality by asserting that New York has no interest in applying its law here and that therefore any negative impact an application of Ontario law would have on New York law is irrelevant. The problem is that as noted earlier, New York does have some interests in this case. Indeed, three of the four relevant contacts identified by the Second Restatement indicate a strong New York interest (place of the injury, place of the tortious conduct, place where the parties relationship is centered). These New York interests should at least indicate that Ontario law would have some negative impact on the relevant substantive law policies. Moreover, if as the court claims, New York has no interest in applying its own law to the case, this case would then be a false conflict and the courts entire Neumeier exercise would be moot. The court may have also mischaracterized the exception to the third rule. The court seems to understand the exception as applying when the non-situs laws being applied would advance (or at least not frustrate) the substantive policies of the situss conflicting rule. It seems to me, however, that the purpose of the exception urges that it be read to apply to cases where
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application of the non-situss law would sufficiently advance that laws own substantive policies (i.e., where the non-situs jurisdiction has a sufficiently strong interest and applying its law instead of the law of the situs would further those interests). The exception, then, urges that where another jurisdictions interests would be particularly well served by applying its law to the case, and where applying that law would not frustrate the expectations or predictability of the parties, that law should be applied notwithstanding the third rules normal suggestion that the law of the situs be applied. On this understanding, the court should have considered whether

applying Ontarios limited recovery law would significantly further Ontarios relevant interests. The Obvious answer is that it would not, since the truck-defendants are not Ontario domiciliaries, and Ontario has no desire to limit the recovery of its own residents if they wont be taxing the resources of Ontario defendants. Finally, the court seems to have erred in its conclusion that applying Ontario law to this case would not produce uncertainty for the litigants. It is true, as the court notes, that in light of the fact that the truck-defendants have stipulated only 10% liability, applying New Yorks unlimited noneconomic damages rule might result in the truck-defendants being unexpectedly subject to a heavier damages burden than the bus-defendants governed by Ontarios damage cap. However, whether applying the situss law will produce uncertainty is not the correct inquiry. The

Neumeier rule makes clear that the court should consider whether applying the non-situs jurisdictions rule would produce uncertainty. Undoubtedly, subjecting Pennsylvania defendants driving through New York to an Ontario tort law merely because the victims of the accident happened to be Canadian create uncertainty in the way truckers do business and insure themselves against liability. Granted, in this case, applying Ontario law would give the

defendants an unexpected boon since their liability would be capped. In other case, however,
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truckers might not be so lucky if the site of the plaintiffs domicile has more plaintiff-friendly damages rules than does Ontario.

E. Applying the Public Policy Exception After completing the Neumeier analysis, the court proceeds to consider whether applying Ontario law would violate New York public policy, and implies that if it did, the application of New York law would be appropriate. It is worth noting that this approach may not be

appropriate at all since Neumeier might be read as propounding an exhaustive set of rules that take into account the relative interests of and contacts with the relevant jurisdictions, and as such further analysis based on public policy exceptions has no place. Indeed, using the public policy exception may undermine the whole purpose of the modern interest analysis approach which is designed in part to promote predictability, reduce forum shopping, and generally avoid the vagaries of the traditional approach and its escape devices. Assuming, however, that the Neumeier rules are not meant to be exhaustive, and that New Yorks public policy is relevant to its application of Ontario law, the public policy inquiry proceeds in two stages. The court first considers whether applying the Ontario rule would violate New York public policy, and concludes that it does not. The court next considers whether, assuming applying the Ontario rule does violate New York public policy, there are sufficient contacts between the parties, the wrongful conduct, the injuries, and the State of New York as to implicate the interests of New Yorks public policy. On this latter question, the court found that the contacts with New York were not sufficient to implicate New Yorks public policy.

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1. Does the Ontario Rule Violate New Yorks Public Policy? As Justice Chase noted, a forums application of foreign law is never compulsory; the foreign jurisdiction has not power within the forum and the forums decision to apply foreign law is a prudential ruling based on comity and the desirability of applying that particular law of that particular foreign jurisdiction in a particular factual setting. Consequently, when a foreign law conflicts with the public policy of the forum, the forum jurisdictions interests are unlikely to be served by applying the foreign law, and therefore the court should probably reject the foreign law and apply its own. The New York and Ontario noneconomic recovery rules differ, but just because each jurisdiction has balanced the policies related to protecting plaintiffs and defendants in a different way does not automatically mean the policies are at odds with each other. The public policy analysis is amorphous, and in order to avoid rejecting otherwise applicable foreign laws merely because the judge disagrees with it, courts would be prudent to reserve the public policy exception to the most extreme cases. Even the property rights destroyed and created under Hitlers Nuremberg laws were held not to so greatly conflict with New Yorks public policy as to cause a New York court to deny contract rights created in Germany in reliance on those unjust laws. While New Yorks damage rule evinces a strong policy in favor of compensation and a disregard for the concerns that arise from imposing limitless liability on defendants and insurance companies, Ontarios limited damages rule, which demonstrates a concern for defendants liability likely does not conflict too greatly with New Yorks policies as to urge the court to reject the application of Ontario law (assuming such application is otherwise appropriate a dubious proposition).
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Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

2. Are there Sufficient Contacts with New York to Implicate New York Public Policy Concerns? Assuming arguendo that there is a public policy conflict here, the court concluded that the relevant contacts with New York were not sufficiently strong to substantially impact New York public policy and encourage the application of New York law. While there likely is no public policy issue, assuming there is one, the courts conclusion about the relevant contacts with New York is troubling. The court relied on Schultz and

reasoned that like the plaintiffs in that case, the plaintiffs here had only casual contact with New York for short-term recreational purposes. There are several factors that distinguish this case from Schultz, however. First, in Schultz the complained of injury (the plaintiffs sons suicide) occurred not in New York, but in New Jersey, and the continuing abuse that led to this unfortunate event occurred in New Jersey as well. By contrast, in this case, almost all the relevant contacts are with New York. The plaintiffs injuries occurred in New York, the

defendants conduct that caused the accident took place in New York. The relationships between the parties are centered in New York. The parties were purposely present in New York. Except for the parties domicile, all relevant contacts arising from this case are with New York. Moreover, to say that the parties domicile is such a strongly relevant contact as to defeat the impact of all the other contacts amounts to a reversion to the mechanical traditional approaches to choice of law that focused on one salient feature, such as the situs of the tort or the domicile of the parties. While the court distinguishes this case from Kilberg, where the relevant contacts were held to be sufficient to implicate New York policies, this may be a distinction without a difference.
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While some of the contacts with New York are certainly less acute in this case where the plaintiffs are not New York domiciliaries, other contacts, such as the plaintiffs intentional presence in New York (whereas in Kilberg the plaintiff intended to be in Massachusetts), and the locus of the injury and the conduct giving rise to the injury (whereas the injuries and causative conduct in Kilberg were in Massachusetts) are centered in New York and urge that if a public policy conflict was apparent, the contacts with New York are sufficiently strong as to implicate New York policies and urge the application of New York law.

II.

Possible Choice of Law Alternatives The Butler court apparently followed the New York approach based on the Neumeier rules

and interest analysis. While there are problems with the courts conclusions even under the New York choice of law rules, other results could have been obtained using alternative choice of law regimes.

A. The Traditional Approach The traditional approach to choice of law problems was grounded in a territorial theory of sovereignty that posited that each States sovereignty, and the control of its laws fills its borders to the exclusion of the laws of other jurisdictions. The traditional approach also rested on a vested rights theory, which posited that for reasons of comity and respect for a States sovereignty over occurrences taking place within its jurisdiction, each jurisdiction should respect and enforce the rights created in sister jurisdictions. In the contest of a tort case like Butler, the traditional rule adopted the lex locus delectus rule, which applied the law of the State in which the tort occurred. This approach might create some
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confusion in a case like Alabama Great Southern R.R., where some elements of the tort (the creation of a duty and possibly the breach) took place in one State, while the injury occurred in another State. In Butler, however, the lex locus rule could easily be applied and New Yorks

law adopted since all the elements of the tort took place in New York. Of course, the beauty of the traditional approach is the availability of numerous escape devices that might allow the court to reach a number of results, depending on which law the judge found most desirable. On important escape device is characterization. Because the traditional rules applied different choice of law rules for different kinds of cases, and because cases do not fit neatly into first year law school course descriptions, characterization is a optimum result-oriented tool for choosing a particular jurisdictions law while still maintaining the faade of neutral justice. In this case, the court might characterize the case against the busdefendants as based in contract instead of tort, since the relationship between these two parties arose from the contract the plaintiffs entered into with the bud-defendants to transport them from Windsor to upstate New York. The traditional rule for contracts was that the chosen law was that of the locus where the contract was made in this case Ontario. Of course, the court could find wiggle room even within the contract classification by characterizing the suit as one arising from performance in which case the law of New York, the place of performance, would govern or by characterizing the action as one arising out of the parties relationship under the contract in which case, Ontario law would apply as the law of the place of the making. I suppose if the court wanted to get really creative, it could stretch and say that the relationship between the parties is similar to questions of personal status and is governed by the parties domicile. Here, both the plaintiffs and bus-defendants are domiciled in Ontario since their trip to New York for a Hockey game certainly would not constitute an intended and actual permanent change of
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domicile to New York. The is far less room for characterization manipulation with respect to the truck-defendants, and New York rule would be likely to apply. There are other escape devices, however. It would be pointless in this case for the court to could wander into the substance/procedure distinction mess since here the forum and situs of the tort are the same. Decepage might be useful since it would allow the court to perhaps use New York law to govern the standard of care expected of drivers (thereby preserving the safety of New York roads and the integrity of New York sovereignty over in-state conduct), but to allow Ontarios damage cap to apply to the Ontario, and possibly also the Pennsylvania defendants. Giving the defendants the benefits of Ontarios damage cap might encourage tourism and business to come to New York, since they could be confident in the advantages of their own damage rules. Since the situs rule works in New Yorks favor here and dictates the forum courts application of its own law, there doesnt seem to be any reason why the court would try to use the public policy exception to avoid applying foreign law. If for some reason Ontario law was deemed the correct choice as an initial matter, the court might use the public policy exception to avoid this result. Of course, comity and the desire of New York courts to have New York citizens be treated in accordance with their New York rights in other courts of other States would urge the court not to reject the application of Ontario law to this case on public policy grounds. Nevertheless, if it was determined to do so, the court could engage in the public policy analysis discussed earlier, and reasonably conclude either that applying Ontario law would or would not violate New York public policy. Characterizing the damage rule as penal so as to avoid applying Ontario law, however, seems entirely baseless.

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B. The Second Restatement Under the Second Restatements approach, the court would begin with a presumptively applicable law using the factors set forth in 145. The court would then test this conclusion against the numerous factors identified in 6 in light of the relevant contacts for a tort action. The Second Restatement begins with a presumptive applicable law. For tort cases, only deviating slightly from the First Restatements lex locus rule, the Second Restatement starts by assuming the law of the jurisdiction with the most significant connection of the tort governs. In considering what jurisdiction has the most significant connection, the Restatement considers the situs of the injury, the situs of the injury-causing conduct, the domicile of the parties, and the jurisdiction in which the parties relationship is centered. Under this approach, the case against the truck defendants may begin with a different presumptive law than the case against the busdefendants. With respect to both defendants, the situs of the injury and wrongful conduct is the same New York. However, with respect to the bus-defendants, the parties share a common domicile in Ontario, and arguably their relationship is centered in Ontario as well since that is where the plaintiffs hired the bus-defendants to drive them to New York. That relationship would exist regardless of whether an accident had occurred in New York, and thus, the tort itself and the fact that it occurred in New York and not in Canada might be considered fortuitous. There is a fair case, then, that the case against the bus-defendants should presumptively be governed by Ontario law. With respect to the truck defendants, however, there are no significant connection that would urge that the case be presumptively governed by Ontario law. The parties are domiciled in different jurisdictions Ontario and Pennsylvania. The only relationship between the plaintiffs and truck-defendants is centered on the vehicle accident that gave rise to the suit, and thus is
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centered in New York. Since with respect to the truck defendants three of the connection factors (situs of injury, situs of conduct, situs of relationship) point to New York, and the fourth factor (domicile of the parties) does not point to anywhere in particular, it seems that this action would be presumptively governed by New York law. After determining the presumptively applicable law, the Second Restatement approach looks to several factors and principles that may rebut the original presumption in order to achieve a more desirable result. In considering the needs of the international system, the court should consider which law will promote cooperation and commerce between States or countries. In this case, the New York court might want to maintain the presumption in favor of new York law since doing so will assure Canadian travelers, tourists, and business people that if they do travel to New York, that will at least have the benefit of new Yorks permissive recovery rules in case they are injured. (As a side note, such travelers would likely not be deterred by their potential liability as defendants in New York tort actions, since their domicile in Ontario and their status as defendants may urge the court to give them the benefit of the defendant-protecting damage limitation of their own domicile in the interests of promoting the interests of the interstate system). The court also considers the policies of the conflicting laws of the various jurisdictions whose rules are under consideration. The possible policies underlying the New York and Ontario laws have been discussed above. The Restatement also considers the justified expectations of the parties. This factor is typically more relevant to contract cases than a tort case, but the parties purposeful travel into New York might support some kind of justified expectation that they would be subject to New York law while they are there. This conclusion might be less strong with respect to the bus21

Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

defendants and the plaintiffs because, since they were both Ontario domiciliaries, and because they would remain in close contact with each other throughout the trip, they may have reasonably expected to govern the interactions between them by Canadian law, with which they are more familiar and usually subject to. On the other hand, any concrete expectations by the parties (with the possible exception of the commercial defendants who are regularly involved in assessing and insuring the risk of liability in various States in which their business operates) may be fictional, and would not support the realities of the situation, which is an important aspect of the Second Restatement approach. The court also considers the general policies underlying the relevant field of law. This factor doesnt seem to be much help here because while one could argue that tort law is based on underlying policies of victim compensation, modern approached to tort law emphasize that it is really a policy determination about how to allocate losses for particular injuries among the victims, tortfeasors, insurance companies, and general public. It would be hard to discern any particular tort law policy that supports the law of either New York or Ontario. Both are grounded in tort principles, with the legislatures of each jurisdiction making different policy decisions about where losses should lie. The court also considers the choice of law in light of the general interests in predictability, certainty, uniformity, and ease of application. Legal systems want to allow people to order their affairs against the background of the law, and doing so requires that individuals be able to at least make a reasonable prediction about what law they will be subject to in particular situations. Applying New York law in this case supports all of these aims. Parties can be sure that when they cross the New York boarder, they must abide by and be held subject to New York law. Just as they may reduce their speed from 65 to 55 when passing from Pennsylvania to New York, so
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too they must subject themselves to unlimited liability for torts caused in the State. At least in this case, where the action was brought in New York courts, applying New York law is easy and conserves judicial resources. Of course, the Second Restatement has its drawbacks. For example, in this case, if the court was for some reason inclined to apply Ontario law (maybe New York-Ontario bussing is particularly important to upstate New York and the New York court doesnt want to impose unlimited liability on the bus-defendants), it could characterize the basis of the relationship between the parties as contractual, and applying the Second Restatements contract case interest factors, find that Ontario law controls.

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Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

Question II Introduction While flying on defendant-airlines aircraft from New Mexico to Colorado, plaintiffs plane crashed in Colorado, killing some and injuring others. Plaintiff Currie, an Arizona domiciliary filed a wrongful death action against defendant in Arizona court. Plaintiff Griswold, a New Mexico domiciliary also filed a wrongful death action in Arizona court. Plaintiff Cavers filed wrongful death and personal injury actions against defendant in Arizona court. The laws of four States are relevant here. Texas and Arizona have the most permissive recovery rules; it allows punitive damages in wrongful death actions, and does not limit compensatory damages. New Mexico allows for punitive damages in wrongful death actions, but does not allow for recovery of intangible injuries such as loss of consortium. Colorado has the most restrictive rules; it prohibits punitive damages and recovery for noneconomic losses in wrongful death actions. An examination of several possible choice of law regimes under which this case might be decided reveals that different choice of law regimes reach essentially the same result. The snag here is that the uniform result is not really a result at all. It seems that under each choice of law regime, the court has a variety of options, using the escape devices built into the traditional approach, or the more amorphous general standards of the modern interest-based approach, to reach almost any choice of law conclusion it wants. Indeed, it seems as though the choice of law options available to a court do not vary depending on which regime it utilizes either. I. The Traditional Approach Plaintiffs are pursuing wrongful death and personal injury actions against the defendant for the death of her husband in the plane crash. Under the traditional approach, characterization of
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Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

this case will be essential. If the case is characterized as an ordinary tort case, the lex lucus delectis rule would suggest that Colorado law should control (although if the negligence that caused the crash took place on the ground in New Mexico, there could be a case for New Mexico law, depending on how the tort is characterized). If the case was characterized as one in contract, since liability might arise from the contract between the defendant airline and its passengers, the choice of law could possibly be governed by the law of the place of the making (New Mexico), or perhaps the place of performance (Colorado), since the crash was arguably the result of a failure to perform the contract properly. Curries domicile may be relevant if the court, using decepage, separates the loss of consortium issue, which as a personal status question would probably be governed by Arizona law. The application of Arizona law could also be accomplished by characterizing the damages rules as procedural rather than substantive. This seems unlikely, especially with respect to the limits on wrongful death actions to pecuniary losses and the bar on punitive damages. These do not so much regulate the remedy as they do define the substantive rights for which a plaintiff in a wrongful death action could recover. The court might also decline to apply Colorado or New Mexico law by finding that the laws of these other jurisdictions offend the public policy of the forum. The laws in question arent penal, but the ways in which they allocate losses in wrongful death cases do implicate important policy questions. We dont know much about the legislative history of these laws, but we might speculate that Arizonas laws evince a policy of complete compensation for plaintiffs as well as a conviction that deadly injuries are so serious that they should be deterred with punitive damages beyond the deterrent effect of ordinary compensatory damages. The Colorado law that disallows recovery for noneconomic losses and bars punitive damages stands in direct conflict with
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Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

Arizonas tort policy. The standard for a courts finding a conflict of public policy so severe as to disregard the regular traditional choice of law rules, however, is particularly high, and this may not make the cut. However, if New Mexico law was to apply (perhaps under a contractbased approach) there could be stronger argument that New Mexicos bar on recovery for loss of consortium is strongly in conflict with Arizonas law. Regulation of the relationship between a husband and wife is an matter that is an essential expression of a States sovereignty over the people within its jurisdiction. Arizona has chosen to regulate spousal relationships in a way that allows for recovery for loss of consortium, and applying New Mexicos conflicting law would arguably violate this policy.

II.

The Second Restatement A. Currie Assuming the case sounds in tort rather than contract, the Restatement directs the court to

consider which jurisdiction has the strongest connection to the tort in light of the situs of the injury, the situs of the conduct that caused the injury, the domicile of the parties, and the situs of the parties relationship to each other. Unusually, in this case, these factors point in radically different directions indicating that several States have strong connections to the action. Obviously, the injury occurred in Colorado. The conduct that caused the injury probably

occurred in Colorado, but may have occurred in New Mexico; we dont know enough about the exact causes of the crash to make any definite determination on this point. Both parties share a common domicile in Arizona. The relationship between the parties is likely based in New Mexico, where the flight left from, though it could conceivably be based in Arizona as well if plaintiff purchased the ticket from Arizona, especially since defendants appear to due significant
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Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

business and fly to a from States throughout the Southwest, including Arizona. A court could conceivably adopt any of these three States laws as the presumptive starting point before engaging in the 6 analysis, but the most likely choice is Colorado as the situs of the tort, and the Second Restatement begins its analysis by presuming that the applicable law is the one that would be selected under the traditional approach. After selecting the presumptively applicable law, the court then considers the 6 factors which might be used to rebut the original presumptively applicable law in light of the relevant interests of the various jurisdictions. Choice of law rules should foster harmonious and

productive relations between jurisdictions. Here, the Arizona courts applying Arizona law (which there is as much reason to apply as Colorado law) is unlikely to cause difficulties between Colorado and Arizona. While the crash occurred in Colorado, since both parties are from Arizona, Colorado seems to have little interest in applying its own limited damages rules to the case, while Arizona has a significant interest in protecting the injured plaintiff as a grieving wife, and in punishing the defendant with punitive damages as a negligent service provider. Moreover, applying one law instead of the other would not seem to do anything to promote travel or business between the States. The defendant does business throughout the Southwest and could expect to be sued in any number of States. The coincidental fact that this accident took place in a State with restrictive liability laws should not absolve an Arizona defendant from paying an Arizona plaintiff the full extent of damages he would be liable for under Arizona law when sued in an Arizona court. The policies of the interested States here might be taken to encourage the application of Arizona law, since both parties are Arizona domiciliaries, and since the law is designed to regulate the relationships between Arizona plaintiffs and Arizona defendants. Colorado could
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Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

argue that it has an interest based on a desire to control tortious conduct within its borders, but the Colorado law here would not serve to deter negligence since it is protective of defendants, and Colorado has no real interest in protecting a defendant domiciled in Arizona (though perhaps there is something to the claim that Colorado has an interest in protecting even Arizona defendants from prohibitive liability since the airline services Colorado residents as well, and likely pay to use Colorado airports). New Mexico might also have some interest in controlling the action since the flight originated from New Mexico, but the same arguments that relate to Colorados interest would apply to new Mexico. Ultimately, any interest in promoting safe conduct by defendants would be best served by applying Arizonas plaintiff friendly rules. Justified expectations are most relevant in contract cases. In a tort case, parties may have certain expectations about where they act and which laws they may be subject to. Since

defendants here operated their airline throughout the Southwest, they might reasonably expect to be subject to the law of any of these States, since one of their planes could conceivably crash in any one of them. While justified expectation might be relevant to discourage the application of Illinois law, for example, if by a freak accident the plane had been blown off course and ended up halfway across the country far from its normal operating area, there doesnt seem to be any strong indication that defendants would expect not to be sued under Arizona, Texas, New Mexico, or Colorado law. There also seems little reason to suppose that the Arizona plaintiffs who flew from New Mexico to Colorado would expect to not be subject to any of these States laws. Predictability and uniformity also do not seem particularly relevant here. Defendants could predict being subject to any one of these laws since they flew throughout the Southwest, and because on this particular flight they transported Arizona residents from New Mexico to
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Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

Colorado. Uniformity seeks to reduce the effect of forum shopping. In this case, Arizona law could be applied without defeating uniformity because the application of Arizona law would not be based on the cases being brought their, but because both parties are domiciled there, and the result would be the same if the Arizona plaintiffs had sue in any other connected State were personal jurisdiction could be had.

B. Griswold Again, the presumptively applicable law here would appear to be Colorado law. The

connections point more strongly to Colorado than in the Currie suit, since the relationship between the parties is centered in New Mexico, but the injury and conduct occurred in Colorado, and because the plaintiffs are domiciled in different jurisdictions. Arizona might reject any attempt to apply New Mexico law to the case because New Mexicos policy rejecting recovery for loss of consortium could be seen as contrary to its own policy supporting such actions. For similar reasons, Arizona might try to avoid applying

Colorado law, since Colorados limited recovery rules protecting defendants at the expense of plaintiffs are contrary to Arizonas policy of affording full recovery for pecuniary and noneconomic losses to plaintiffs, as well as providing for punitive damages to deter wrongful conduct by defendants in the future. It seems clear that the 6 analysis urges that the presumption in favor of Colorado law should be rejected. Applying Colorado law would not seem to encourage travel or interstate commerce; plaintiffs might be discouraged from traveling to Colorado if they would be subject to its limited recovery rules just because they took a recreational ski-trip to Colorado, and defendants are not likely to be discouraged to engage in business if they were not afforded the benefit of Colorados
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Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

rules because they could expect to be subject to Arizona or New Mexico law anyway since they do business throughout the Southwest. The justified expectations of the parties (though their applicability is limited in tort cases) would not support Colorado law either. New Mexico plaintiffs flying from New Mexico to Colorado for a brief recreational visit and intending to return to New Mexico would not expect to be subject to Colorado law, especially a law as restrictive as Colorados recovery rules that are so different than New Mexicos. Defendants also would not really have a particular expectation to receive the benefit of Colorado law since it flies planes throughout the Southwest, and a crash could have just as easily occurred in Arizona or New Mexico. The fortuitous fact that the crash took place in Colorado should not be so weighty as to override the concern for the disparity in policy between Colorado and New Mexico or Arizona law. At bottom, it seems as though Arizona law should apply simply because if the choice lies between Arizona and New Mexico law, the forum should just apply its own law in the interests of convenience and preserving judicial resources. This result is supported by the fact that the laws of the two jurisdictions are so similar to each other so that it wouldnt really matter which was applied. The chief difference between the two laws seems to be that New Mexico does not allow damages for loss of consortium while Arizona does. His distinction further supports the application of New Mexico law because the plaintiff, as a New Mexico domiciliary, should not receive the benefit of Arizonas more permissive rule, especially since this would subject the defendant to greater liability than New Mexico law would allow for.

C. Cavers

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Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

The analysis is much the same for Cavers as for Griswold. The presumptive law is likely that of Colorado because that is the situs of the injury and the tortious conduct; because the parties are domiciled in different States so that the domicile factor doesnt point to any law in particular; and because the situs of the parties relationship may point to Colorado, New Mexico, or Texas where the tickets were likely purchased. While Colorado is the presumptive law, the 6 factors indicate that this presumption should be rejected because Colorado law is radically inconsistent with both Arizona law and Texas law. Colorado also has little interest in applying its law to limit the recovery of a Texas plaintiff or protect an Arizona defendant. Arizona law will likely apply for the same reasons that it would likely apply to Griswolds case: Arizona and Texas law are similar, and convenience would urge the court to simply apply the law of the forum. Applying Arizona law as the law of the forum might be challenged as encouraging jurisdiction selecting because the process by which we decided to apply Arizona law could also lead to the application of New Mexico law had the case been brought there, or Texas law if the case had been brought there. This analysis might even support the application of Colorado law if the case had been brought there, since Colorado has some contacts and the application of another States permissive recovery rules would be inconsistent with Colorado policies.

III.

Interest Analysis Interest analysis has the benefit of avoiding many of the choice of law problems raised by

these cases under other regimes because these cases likely present false conflicts.

While

Colorado is the situs of the injury, it likely has little or no interest in applying its law to any of these cases, since neither the defendants, not any of the plaintiffs are domiciled in Colorado, and
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Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

Colorados limited recovery rules would seem to be premised on a policy protecting Colorado defendants from ruinous liability, and encouraging careful conduct by potential plaintiffs since if injured they will be unable to fully recover. Neither of these policies would be furthered by applying Colorado law to this case since the defendants are not Colorado domiciliaries and the plaintiffs are not Colorado residents and could not have acted more carefully in any case since they were entirely subject to the defendant airline. Colorado might claim an interest in

preventing tortious conduct within its territory, but this end would not be served by applying its restrictive recovery laws. Even if Colorado doesnt have an interest in applying its law, there may be conflicts in some of the cases between Arizonas interest in applying its law and the plaintiffs domicile States applying their own laws. Obviously, there is no conflict in Curries case since all parties are domiciled in Arizona, the forum can simply apply its own law. Griswolds case might present some conflict because Arizona may have an interest in applying its law allowing for loss of consortium recovery so as to subject the Arizona defendant to greater liability and thereby deter any future wrongful conduct. However, New Mexico may have an interest in furthering its own regulation of marriage and spousal obligations by applying its law and precluding a loss of consortium recovery. If there is a true conflict here, the third Neumeier rule would urge that Arizona law be applied as the law of the forum. The exception to the rule probably should not apply since any reason for applying New Mexico law over Arizona law based on the difference in the two loss of consortium rules would seem to be archaic and not particularly important. In any case, modern jurisprudence clearly favors victim compensation,

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and therefore Arizona law seems to be the better approach, especially since it will only result in an Arizona defendants being subject to added liability. The analysis for Cavers case is much the same, and Arizona law will once again likely apply under the third Neumeier rule.

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Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

Question III In considering whether to adopt Art. 14, which would allow parties in tort cases to choose their own law by agreement after the tort occurred, or for commercial parties, by an agreement entered into before any damages occurred, we should consider two main questions. The first issue is whether Art. 14 could be adopted consistent with sound jurisprudential and constitutional norms. The second issue is whether, assuming Art. 14 could be adopted in principle, it would be prudent to adopt the measure either as is or with some revisions. The main jurisprudential concern respecting the adoption of Art. 14 is that there is good reason to limit parties ability to contract around ordinary choice of law rules. Justice Story argued that while party autonomy and the ability of individuals to make private legislation through contracts is important, individuals cannot justifiably circumvent the public policies of their respective States by contracting around their own legal disabilities. A similar argument could be applied to choice of law agreements, namely, that parties should not be able to contract around a forums choice of law rules in order to achieve particular results as a means of circumventing undesirable forum choice of law rules. I dont think this argument is particularly troubling, however. Story pointed out that the traditional choice of law approach does not rest on one States being compelled to adopt the law of another jurisdiction in deciding cases in its own courts. Such a result would be radically inconsistent with the concept of sovereignty. Rather, when a State chooses to apply the law of another State, it does so freely out of a concern for comity and respect between the States, and because giving up a little bit of sovereignty in a particular case in favor of foreign law is beneficial to the State and the inter-State system in the long run. This idea could be applied here to justify private choice of law agreements. In reality, parties that contract a particular choice of
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law in a jurisdiction following Art. 14 are not circumventing the State legislature and undermining the public policy of the forum by private agreement. Rather, parties are contracting a particular choice of law by the consent of the forum State that has adopted Art. 14. From this perspective, allowing parties to contract a particular choice of law does not undermine State sovereignty since it takes place only by permission from the State itself that has chosen o recognize such agreements as a valid approach to dealing with choice of law issues. Assuming that allowing choice of law agreements would not be jurisprudentially or constitutionally problematic, it remains to be considered whether adopting Art. 14 would be prudent. There are some obvious benefits in allowing parties to contract choice of law rules for themselves. First, such agreements are likely to be more efficient and better preserve limited judicial resources that might otherwise be wasted engaging in choice of law analyses that may be nothing more than fictitious facades in any case. Art. 14 is alos likely to produce the most economically efficient outcomes for the parties, since parties will be free to contract based on their interests, legal costs will likely be reduced, and parties are more likely to be satisfied with the results at trial and less likely to appeal. Furthermore, allowing parties to agree to a choice of law absolves courts of this arduous task, and in some sense improves the public perception of the courts as institutions committed to justice, integrity, and neutral principles. One of the hallmarks of choice of law regimes is that they all contain numerous escape devices and other means that courts might use to achieve the results they desire. Avoiding such judicial policy-making may increase the prestige of the courts. Art. 14 is not without some prudential concerns, however. First, as it stands, the provision would seem to allow parties to choose the aw of virtually any jurisdiction to govern their case. In doing so, the rule stops only one step short of allowing private parties to make their own laws
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Fordham IDN: A08674602 Exam ID: E32934063 Class of 2012

entirely, and there doesnt seem to be a good logical reason why the provision should extent party autonomy as far as it does without going farther. Perhaps a prudent amendment to Art. 14 would be to include a provision limiting the potential laws that might be chosen by agreement to the laws of jurisdictions that have an interest in the outcome such that their laws would be up for consideration by the forum State in any case. Such a provision would insure that parties are not able to wander too far afield and apply wholly irrelevant and uninterested laws to the case merely because they like the results those laws would achieve. Such discretion is appropriate to the making or prospective contracts governing future conduct, but allowing them to be applied retrospectively in tort actions to determine the applicable law would lead to greatly unpredictable consequences for any particular course of conduct, since parties might negotiate for different results under different laws after the fact. Indeed, allowing too wide a scope of discretion would undermine the rule of law itself and make the standards of care that the law of a particular jurisdiction applies virtually moot, since they can be made irrelevant after the fact by adopting a standard of care of another jurisdiction. Another valid concern surrounding Art. 14 is the possibility that a forum will be forced into applying foreign laws that are radically inconsistent with its own policies based on the post injury choice of law agreements made by the parties. If ordinarily parties cannot enter into contracts that undermine the basic public policies of the State in which the contract is made, or are unrecognizable in the forum State because the parties are not granted the power to contract as they did by the forum State, it seems reasonable to argue that parties should not be able to invoke the authority of the courts of a particular forum for the purpose of using those courts to apply laws that are strongly contrary to the forums policies. A clause allowing a forum to avoid choice of law agreements when the chosen law violates (and is not merely inconsistent with) the
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forum States public policy would place a meaningful, but not too onerous limit on the party autonomy that would serve to protect the integrity and sovereignty of the State in whose courts the parties wish to resolve their dispute and enforce their chosen law.

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