What is “choice of law”?
“Choice of law” refers to situations in which a court must decide which jursidiction‘s laws apply to a particular case or to a particular issue in a case. The question a choice of law conflict asks is “Which laws should apply to this case?”
This area of law is sometimes known as “conflict of laws,” because choice of law issues frequently deal with choices between two laws that conflict in some way. While many personal injury and similar torts cases are quite straightforward, others, especially those involving diversity jurisdiction or multidistrict litigation, can turn into complex choice of law issues.
Steps in a Choice of Law Case
Step One: Jurisdiction, Venue, and Forum Shopping
Figuring out which law should apply to a given case or issue within a case typically follows a basic set of steps, regardless of the type of case or which laws might apply. First, the court and parties consider whether the jurisdiction and/or venue are appropriate for the case. ”Jurisdiction” refers to whether the court has the power to hear the case and enforce its judgment, while “venue” refers to whether a particular courthouse or courtroom is an appropriate place to hear the case.
Jurisdiction and venue rules exist in part to prevent forum shopping, or choosing a court based on how likely it is to render a verdict in a particular party’s favor. When forum shopping looks like an issue in the case, the court will typically apply its own local rules of procedure to decide whether or not it will take the case or send it back to a more appropriate jurisdiction or venue. The doctrine of “renvoi” (meaning “to send back”) may also apply. By using renvoi, the court hearing the case can apply the laws of the court that would ordinarily have heard the case were it not for the parties’ forum-shopping.
Step Two: Is This an International Law Case?
Once jurisdiction and venue are deemed proper, the court considers whether or not the case involves issues of international law, including treaties made by the federal government. The U.S. Constitution’s Full Faith and Credit Clause requires U.S. state and federal courts to recognize judgments made in foreign courts. The Constitution also requires U.S. courts to recognize foreign treaties made by the federal government as applicable law in the U.S. In other countries, foreign judgments may be given weight by the rule of “comity,” which generally encourages countries to respect legal decisions made in other countries’ courts.
Step Three: Substantive Issues Versus Procedural Ones
Third, the court breaks down each disputed issue in the case according to whether it is procedural or substantive. Procedural issues deal with how the case goes forward in court, while substantive issues deal with the actual merits of each party’s arguments in the case. Procedural choice of law issues are almost always decided in favor of using the particular court’s own procedural rules. This is particularly true in multidistrict litigation cases, where the court that oversees the discovery process for the various cases applies the Federal Rules of Civil Procedure regardless of which state it is located in or which states the parties to the case are from.
Choice of law cases often refer to the law of the court hearing the case as the “lex fori,” or law of the forum, and they refer to the law of the place where the accident or transaction occurred as the “lex loci,” or “law of the place.” The “lex fori” is often used to address procedural questions, while the “lex loci” is often used to address substantive ones.
For instance, suppose that the plaintiff in a personal injury case is from Indiana. She’s driving through Missouri on her way to visit family down south, when she’s hit by a driver from Alabama who is heading north. The injured plaintiff files a case in federal court on the basis of diversity jurisdiction. The federal court will probably use the Federal Rules of Civil Procedure for procedural issues, since these are the “lex fori” for procedure in that court. However, the court may apply the substantive personal injury laws of Missouri to the substantive issues, since these are the “lex loci” of the place where the accident occurred.
Step Four: Incidental Questions
Finally, the court answers any “incidental questions” that might affect its application of the rules involved. An incidental question is one that isn’t directly in dispute between the plaintiff and defendant, but the answer to the question will affect the outcome of the case.
For example, suppose that in a breach of contract case, the plaintiff and defendant have a contract in which the defendant will pay the plaintiff $500 for painting the defendant’s barn. The plaintiff sues the defendant because the barn-painting is finished, but the defendant refuses to pay up. One incidental question in this case might be “Did the plaintiff and defendant both have the legal capacity to make a contract?” Although this isn’t specifically what the parties are arguing about, the answer to this question will affect how the court treats the contract (or lack thereof) when it applies the law of a particular place.
Many incidental questions are answered long before trial when the parties admit them in their pleadings or stipulate to the answer. For instance, the court may not have to consider the incidental question “Did the plaintiff and defendant both have the legal capacity to make a contract?” in this case if both the plaintiff and defendant agree that the other party did have capacity and there is no reason for the court to believe otherwise. A key goal of the discovery process is to answer as many incidental questions as possible, so that the court can zero in on the actual dispute.
At least two federal laws limit the incidental questions required in family law cases. The federal Defense of Marriage Act (DOMA) allows any court to apply the law of the place where the case is brought to decide whether a valid marriage exists between two partners of the same sex. This differs from the traditional rule of “lex loci celebrationis,” which required courts to apply the laws of the place where the partners were married (and which still applies in most opposite-sex-marriage cases).
Second, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) requires courts to apply the laws of the court that originally decided the child custody and maintenance issues. However, courts may skip this rule in favor of the jurisdiction’s own substantive law if neither parent is still within the jurisdiction of the court that originally decided the custody and maintenance issues and there are other sound reasons to apply the substantive law in the jurisdiction of the court hearing the case.
