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Copyright (c) 2016 The American Society of Comparative Law, Inc.
The American Journal of Comparative Law

Summer, 2016

The American Journal of Comparative Law

64 Am. J. Comp. L. 221

LENGTH: 48980 words

ARTICLE: Choice of Law in the American Courts in 2015: Twenty-Ninth Annual Survey +

NAME: SYMEON C. SYMEONIDES*

BIO: * Dean Emeritus & Alex L. Parks Distinguished Chair in Law, Willamette University College of Law; LL.B. (Priv. L.), LL.B. (Publ. L.), LL.M., S.J.D., LL.D.h.c., Ph.D.h.c.
 
+ http://dx.doi/org/10.5131/AJCL.2016.0010

TEXT:
 [*222] 
Introduction
 
This is the Twenty-Ninth Annual Survey of American Choice-of-Law Cases. n1 It is written at the request of the Association of American 
 [*223]  Law Schools Section on Conflict of Laws, n2 and is intended as a service to fellow teachers and to students of conflicts law, both inside and outside the United States. n3 Its purpose remains the same as it has been from the beginning: to inform, rather than to advocate. Occasionally, however, small amounts of criticism escape the author's self-censoring filters.
This Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2015, and posted on Westlaw by January 10, 2016. n4 Of the 1,219 appellate cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law - and, particularly, choice of law.
The total number of conflicts cases decided in 2015 and posted on Westlaw by January 10, 2016, was 4,756. n5 Table 1, below, breaks them down into categories. Approximately three-quarters of these cases have been decided by federal district courts and are not covered by this Survey.
Table 1. Conflicts Cases, 2015.

 
U.S. Supreme Court	5	Appellate	
		cases	
Federal Courts of Appeals	416	covered:	
		1,219[li-	
		8]	
State supreme and intermediate courts	798	 	
Federal district and other federal lower courts	3,537	Not covered	
All cases	4,756 	 	

 The following are some of the cases discussed in this year's Survey:
. three Supreme Court decisions, the first declaring unconstitutional all state laws against same-sex marriages, the second interpreting the commercial activity exception of the Foreign 
 [*224]  Sovereign Immunity Act, and the third further constricting the range of state law in matters relating to arbitration;
. a Second Circuit decision resuscitating for now that court's theory that corporations are not accountable for international law violations under the Alien Tort Statute, and two decisions holding that the violations at issue did not "touch and concern the territory of the United States ... with sufficient force"; n6
. two cases refusing to allow a Bivens action for an extraterritorial violation of the Fourth Amendment and an intra-territorial violation of the Fifth Amendment, respectively, and several cases upholding the extraterritorial application of criminal statutes;
. several cases refusing (and some not refusing) to enforce choice-of-law and forum selection or arbitration clauses operating in tandem to deprive employees or consumers of their otherwise unwaivable rights;
. a New York Court of Appeals case explaining why a New York choice-of-law clause in a retirement plan did not include a conflicts rule contained in New York's substantive successions statute;
. several cases involving the "chicken or the egg" question of which law governs forum selection clauses;
. a New Jersey decision ruling on actions for "wrongful birth" and "wrongful life," and several other cases arising from medical malpractice, legal malpractice, deceptive trade practices, alienation of affections, and, of course, traffic accidents, along with products liability cases involving breast implants and pharmaceuticals;
. the first case granting divorce to a spouse married under a "covenant" marriage in another state, and a Texas case recognizing a Pakistani talaq;
. an Alabama Supreme Court decision refusing to recognize a Georgia adoption by a same-sex spouse on the ground that the Georgia court misapplied its own law regarding subject-matter jurisdiction;
. a Delaware case holding that the Full Faith and Credit clause mandates recognition of a sister-state judgment that has recognized a foreign judgment, and does not allow examination of the underlying foreign judgment; and
. a case recognizing a foreign judgment challenged on the ground that the foreign country did not provide impartial tribunals or procedures compatible with due process.

 [*225] 
I. Extraterritoriality and Conflicts Between Federal and Foreign Law
A. Fourth and Fifth Amendments
 
 Last year's Survey discussed Hernandez v. United States, n7 a case arising from the shooting death of a fifteen-year-old Mexican boy, who was playing on the Mexico side of the U.S.-Mexico border, by a U.S. Border Patrol agent standing on the U.S. side of the border. In the 2014 case, a panel of the Fifth Circuit Court of Appeals: (1) dismissed the parents' action against the United States under the Federal Tort Claims Act (FTCA) n8 because the Act does not waive the sovereign immunity of the United States for injuries occurring in a foreign country, even if the conduct occurs in the United States; (2) dismissed the parents' action under the Alien Tort Statute (ATS) n9 because the statute does not reveal a congressional intent to waive the United States' immunity for violations of international law; (3) and dismissed the parents' Bivens action n10 against the U.S. Border Patrol agent for violation of the victim's rights under the Fourth Amendment; but (4) allowed the Bivens action to proceed against the agent under the Fifth Amendment.
On rehearing en banc, the full Fifth Circuit delivered a final blow to the plaintiffs' claim. The court affirmed the panel's rulings against the plaintiffs on points 1 to 3, above, and reversed the only favorable ruling on point 4 regarding the extraterritoriality of the Fifth Amendment. n11 The court agreed with the panel that the agent "showed callous disregard for Hernandez's Fifth Amendment rights by using excessive, deadly force when Hernandez was unarmed and presented no threat." n12 However, the court found that those rights were "not clearly established to the extent the law requires." n13 The court noted that, although the Supreme Court's decision in Boumediene v. Bush n14 appeared to support the plaintiffs' claim, the Court's opinion in that 
 [*226]  case had been expressly limited to the facts before the Court. "Accordingly," the Fifth Circuit reasoned,

 nothing in that opinion presages, with the directness that the "clearly established" standard requires, whether the Court would extend the territorial reach of a different constitutional provision - the Fifth Amendment - and would do so where the injury occurs not on land long controlled by the United States, but on soil that is indisputably foreign and beyond the United States' territorial sovereignty. n15

 In Meshal v. Higgenbotham, n16 the plaintiff was a U.S. citizen who alleged that he was detained, interrogated, and tortured by FBI agents while he was secretly detained for four months in three African countries. He was never charged with a crime. After his release, he returned to the United States and filed a Bivens action against the agents for violating his rights under the Fourth Amendment. In a 2-1 opinion, the D.C. Circuit dismissed the action, reasoning as follows:

 Faced with a shifting paradigm in which counterterrorism and criminal investigation merge, we rely on a familiar framework in an unconventional context. No court has countenanced a Bivens action in a case involving the national security and foreign policy context. And, while Bivens remedies for ill-executed criminal investigations are common, extraterritorial application is virtually unknown. We hold that in this particular new setting - where the agents' actions took place during a terrorism investigation and those actions occurred overseas - special factors counsel hesitation in recognizing a Bivens action for money damages. n17

 Emphasizing that "the extraterritorial aspect of the case is critical," n18 the court noted that: (1) the FTCA explicitly exempts claims against federal officers for acts occurring in a foreign country; (2) the Torture Victim Protection Act (TVPA) n19 provides a cause of action only against foreign officials, not U.S. officials; and (3) as Kiobel and Morrison affirmed, "the presumption against extraterritoriality is a settled principle that the Supreme Court applies even in considering statutory remedies." n20 The court continued:

 [*227] 
 
 If Congress had enacted a general tort cause of action applicable to Fourth Amendment violations committed by federal officers (a statutory Bivens, so to speak), that cause of action would not apply to torts committed by federal officers abroad absent sufficient indication that Congress meant the statute to apply extraterritorially... . Whether the reason for reticence is concern for our sovereignty or respect for other states, extraterritoriality dictates constraint in the absence of clear congressional action. n21

 The court also concluded that the plaintiff's U.S. citizenship did not outweigh "the national security and foreign policy sensitivities implicated by permitting a Bivens claim," because "at no point has the Supreme Court intimated that citizenship trumps other special factors counseling hesitation in creating a Bivens remedy." n22
In a thoughtful dissenting opinion, Judge Cornelia Pillard responded to the majority's discussion of extraterritoriality as follows:
. The reason the FTCA does not authorize an action for an injury occurring in foreign countries is Congress's unwillingness to subject the United States to liability under foreign law. This concern is "inapplicable where the United States Constitution, not any foreign country's law, supplies the rule of decision." n23
. The fact that the TVPA does not authorize actions against U.S. officers "may well reflect Congress' awareness that, against United States agents, a remedy already exists under Bivens." n24 It is "counterintuitive" to infer that if foreign and U.S. agents had jointly tortured the plaintiff, "Congress would have wanted him to have a remedy ... against the foreign agents ... but to have no chance of any parallel relief against the Americans inflicting the same torture." n25
. The Convention Against Torture n26 and other treaties prohibit the United States from engaging in torture and obligate it to provide remedies, including compensation. The State Department has acknowledged that this Convention binds the United States for actions committed abroad and, citing Bivens, has assured the United Nations that victims of torture have a right to sue U.S. officials for damages under the Constitution. n27

 [*228]  . The majority's interpretation "leads to an inexplicable result: civil remedies are available to most victims of torture, except a United States citizen tortured by United States agents abroad." n28 Specifically: (1) a U.S. citizen tortured by foreign officials may sue under the TVPA; (2) a foreigner tortured by U.S. officials in the United States may sue under the FTCA and the ATS; and (3) a foreigner tortured by U.S. agents acting abroad may sue under the ATS. Yet, a U.S. citizen tortured by U.S. agents acting abroad has no recourse. "It makes no sense that Congress would have selectively denied to Americans abused abroad by United States agents the remedies it has extended to all others. The far more tenable conclusion is that Congress recognized that citizens already had a remedy under Bivens for such wrongs." n29
B. Alien Tort Statute and Torture Victim Protection Act
 
 In the penultimate sentence of the majority opinion in Kiobel, the Supreme Court suggested that plaintiffs can rebut the presumption against extraterritoriality to which the ATS is subject, if their claims "touch and concern the territory of the United States, ... [and] do so with sufficient force." n30 Since then, the lower courts have struggled to determine which ATS claims meet this test and academic authors continued to debate it. n31

 [*229]  In addition to the seven appellate cases discussed in last year's Survey, n32 a few more ATS cases reached the appellate courts in 2015. One of them, Doe v. Drummond Co., n33 involved an action on behalf of more than a hundred Colombian civilians killed by a Colombian paramilitary group known by the acronym AUC, during a prolonged period of civil unrest in Colombia. The plaintiffs sued Drummond, an American mining company, and its high-ranking officers, alleging that the defendants hired AUC to provide security for Drummond's Colombian mining operations and that the victims' murders resulted from that relationship. The plaintiffs alleged that, from within the United States, the defendants financed, directed, and conspired with AUC to carry out extrajudicial killings in Colombia. In Baloco v. Drummond Co., n34 a case involving the same events and defendants but different victims (union leaders directly targeted by AUC), another panel of the Eleventh Circuit held that the plaintiffs did not rebut the presumption against extraterritoriality.
The Doe panel reached the same conclusion in this case. The court found that the defendants' U.S. citizenship was a "relevant" n35 
 [*230]  factor but "insufficient ... on its own" n36 to rebut the presumption against extraterritoriality. The plaintiffs argued that this case implicated important U.S. interests because the U.S. government had designated AUC as a "Foreign Terrorist Organization" and the defendants had continued making payments to AUC after that designation. The court characterized this as a "relevant" factor, but concluded that it did "not strike with 'sufficient force' to displace the presumption." n37
The court noted that: (1) the presumption can be rebutted "if enough of the relevant conduct occurs domestically and if the allegations of domestic conduct are supported by a minimum factual predicate," n38 and (2) that the "relevant conduct" inquiry "extends to the place of decision-making - as opposed to the site of the actual extrajudicial killing." n39 However, the court found that the defendants' financing and direction of the AUC's Colombian activities from the United States did not constitute "sufficient domestic conduct to displace the presumption" because "the domestic location of the decision-making alleged in general terms ... does not outweigh the extraterritorial location of the rest of Plaintiffs' claims." n40 The court summarized its conclusions as follows:

 Although we find that the U.S. citizenship and corporate status of Defendants, the U.S. interests implicated by Plaintiffs' claims, and the U.S. conduct alleged are relevant in considering whether Plaintiffs' claims have a U.S. focus and touch and concern the territory of the United States, we must conclude that, in these circumstances, those factors are not sufficient to displace the presumption against extraterritoriality. n41

 The court also affirmed the trial court's dismissal of the plaintiffs' TVPA actions against some individual defendants, but also corrected that court's erroneous reliance on international law for interpreting the TVPA. The appellate court clarified that:

 (1) the interpretation of the TVPA is governed by its text, legislative history, and general principles of U.S. law; (2) theories of liability recognized in U.S. law are available to 
 [*231]  TVPA claimants; (3) the mens rea standard for an aiding and abetting theory of liability in this circuit is knowledge; and (4) the command responsibility doctrine is an available theory of liability contingent on sufficient allegations of authority and control. n42

 In Balintulo v. Ford Motor Co., n43 the Second Circuit also held that the plaintiffs did not rebut the presumption against the extraterritorial application of the ATS. In that case, the plaintiffs were victims of apartheid-era human rights abuses in South Africa. They sued Ford Motor Company and IBM, alleging that the defendants aided and abetted in the commission of those abuses by the apartheid regime.
The plaintiffs alleged that Ford provided specialized vehicles to the South African police to enable them to enforce apartheid, and shared information with the South African regime about anti-apartheid and union activists. The court found that these were the activities of Ford's South African subsidiary and had occurred in South Africa. The court held that these activities should not be attributed to the parent corporation: "Holding Ford to be directly responsible for the actions of its South African subsidiary ... would ignore well-settled principles of corporate law, which treat parent corporations and their subsidiaries as legally distinct entities." n44
With regard to IBM, the plaintiffs alleged that it had designed specific software and other technologies that were essential for racial separation under apartheid and the denationalization of black South Africans. The court found that this conduct occurred in the United States and "appeared to 'touch and concern' the United States with sufficient force to displace the presumption against extraterritoriality." n45 However, the court found that this conduct did not meet the Second Circuit's mens rea requirement for aiding and abetting liability, which, unlike the standard followed in other circuits, is "purpose rather than knowledge alone." n46 In the court's words, "at most, ... the company acted with knowledge that its acts might facilitate the South African government's apartheid policies[, b]ut ... mere knowledge without proof of purpose is insufficient to make out the proper mens rea for aiding and abetting liability." n47
In re Arab Bank, PLC Alien Tort Statute Litigation n48 involved the issue of corporate liability under the ATS. In its first decision in 
 [*232]  Kiobel (hereinafter Kiobel I), n49 a panel of the Second Circuit had held, in a 2-1 opinion written by Judge Cabranes, that corporations could not be held liable under the ATS because customary international law did not recognize the concept of corporate liability. This was certainly a novel theory. Aside from its confused reading of international law, this theory was based on a less than plausible hypothesis: that in enacting the ATS, Congress delegated to international law, rather than domestic law, not only the definition of what amounts to a "violation" of international law, but also the definition of who can be a violator (and perhaps the definition of an "alien"). At a more practical level, this theory means, as Judge Posner observed in another case, that "a pirate can be sued under the Alien Tort Statute but not a pirate corporation [named] Pirates of the Indian Ocean, Inc." n50
It is no surprise that six other circuits that have considered this issue took the opposite view, explicitly or implicitly. n51 As another panel of the Second Circuit acknowledged, "Kiobel I now appears to swim alone against the tide." n52 The Supreme Court granted certiorari to examine this lone swimmer. However, after oral argument, the Court asked the parties to brief another issue - extraterritoriality - and ultimately decided the case on that basis, in Kiobel (hereinafter Kiobel II). n53 Technically, Kiobel II did not overrule Kiobel I. This means that the corporate non-liability theory adopted in Kiobel I remains the law of the Second Circuit, unless and until it is reversed by the whole Circuit sitting en banc or by the Supreme Court. The only exception to this practice is when an intervening Supreme Court decision casts doubt on the correctness of the panel's decision.
In the Arab Bank case, the question was precisely whether the intervening decision in Kiobel II cast doubt on the correctness of Kiobel I regarding corporate non-liability under the ATS. A Second Circuit panel that did not include any of the judges who decided Kiobel I concluded that "Kiobel II does cast a shadow on Kiobel I in several ways." n54 The panel gave three reasons for this conclusion. The first was that the Supreme Court's statement in Kiobel II that mere corporate presence in the United States does not rebut the extraterritoriality presumption implied that corporate presence 
 [*233]  combined with other U.S. contacts might suffice to rebut the presumption, thus leading to corporate liability. The second reason was that Kiobel II embraced an interpretation of Sosa n55 that "derived from international law only the conduct proscribed, leaving domestic law to govern the available remedy and, presumably, the nature of the party against whom it may be obtained." n56 And the third reason was that "Kiobel I and Kiobel II may work in tandem to narrow federal courts' jurisdiction under the ATS more than what ... Congress may have intended in passing the statute," thereby putting aggrieved plaintiffs "in a very small box." n57
Despite these reasons, the Arab Bank panel decided not to depart from the holding of Kiobel I, out of "respect for the authority of three-judge panel decisions." n58 Instead, the panel decided to "leave it to either an en banc sitting of [the Second Circuit] or an eventual Supreme Court review to overrule Kiobel I if, indeed, it is no longer viable." n59
C. Other Federal Statutes
 
 Among the many cases involving the extraterritorial application of federal statutes other than the ATS or the TVPA, the cases discussed below are worth noting. n60

 [*234] 
1. Piracy
 
 The Constitution grants Congress the power "to define and punish Piracies and Felonies committed on the high Seas." n61 Congress has exercised this power by enacting several statutes, one of which defines the territorial jurisdiction of the United States as including the "high seas," "any other waters ... out of the jurisdiction of any particular State," and "any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States." n62
United States v. Beyle n63 involved the definition of the "high seas." Two Somali pirates who were convicted of the murder of four American citizens thirty nautical miles from the Somali coast argued that the location of the murders was not on the high seas. The defendants based their arguments on: (1) a 1972 statute by which Somalia extended its territorial sea to 200 nautical miles; and (2) the United Nations Convention on the Law of the Sea (UNCLOS), which recognizes an exclusive economic zone (EEZ) beyond a country's territorial sea but within two hundred nautical miles of the coastal baseline. n64
Relying on American and international law, the court rejected both arguments. After explaining that the EEZ is merely a part of the high seas over which the coastal state has special economic rights but not sovereignty, the court noted that the 1972 Somali statute was superseded by Somalia's later ratification of UNCLOS, which limits the territorial sea to twelve nautical miles. Unlike 161 other countries, the United States has not ratified UNCLOS. However, it has recognized the twelve-mile delineation as "an accurate reflection of customary international law" and, in any event, "the policy of the 
 [*235]  United States [is] not to respect claims that a territorial sea extends beyond twelve nautical miles." n65
2. Maritime Drug Law Enforcement Act
 
 The Maritime Drug Law Enforcement Act (MDLEA) prohibits the possession of a controlled substance with intent to distribute it "on board ... a vessel subject to the jurisdiction of the United States," which the Act defines as including "vessels without nationality." n66 The Act provides that a "person attempting or conspiring to violate" the above provision is subject to the same penalties as an actual violator. n67 In United States v. Ballestas, n68 a Colombian citizen was convicted of conspiracy to distribute cocaine "on board" a stateless vessel arrested on the high seas, although he was not himself "on board" the vessel and his acts were confined to Colombia. Invoking the presumption against extraterritoriality and the Charming Betsy n69 presumption of intended compliance with international law, he argued that the above conspiracy provision of the MDLEA could not be applied extraterritorially to reach his conduct in Colombia.
The District of Columbia Circuit rejected the argument, noting that these presumptions are merely canons of construction as opposed to limitations on Congress's power, and they can be rebutted by clear indication of contrary congressional intent. A statute containing an intent to apply extraterritorially must be so applied, even if it violates international law because, "after all, Congress is not bound by international law." n70 In this case, the substantive provisions of the MDLEA contained express language about their extraterritorial reach and, although the conspiracy provision did not contain such a language, conspiracy is an ancillary offense and "the extraterritorial reach of [an] ancillary offense ... is coterminous with that of the underlying criminal statute." n71
The defendant also argued that the application of the MDLEA in his case violated the Due Process Clause n72 because the government failed to demonstrate a nexus between his actions abroad and the United States. Unlike some other circuits that have held that the Due Process Clause imposes limits on the extraterritorial application 
 [*236]  of federal criminal laws, n73 the D.C. Circuit decided not to definitively answer this question. "Even assuming the existence of a due process limitation," the court said, "the extraterritorial application of the MDLEA in this case would not run afoul of it." n74 The court reasoned that the pertinent question was not "nexus" but rather "whether 'application of the statute to the defendant [would] be arbitrary or fundamentally unfair." n75 After detailing the defendant's numerous acts (based on his own admissions) of targeting the American narcotics market, the court concluded that the application of the MDLEA in this case was "neither arbitrary nor fundamentally unfair." n76
3. Sexual Tourism Statute and the Foreign Commerce Clause
 
 The Sexual Tourism Statute provides that "any United States citizen ... who travels in foreign commerce or resides ... in a foreign country, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both." n77 An earlier version punished citizens who traveled in foreign commerce "for the purpose of" engaging in illicit sexual conduct. In 2002, Congress removed the italicized phrase because in many cases it was difficult to prove the element of intent. The statute defines illicit sexual conduct and differentiates between "commercial" and "non-commercial" illicit sexual conduct. n78
In United States v. Bollinger, n79 the defendant was convicted of engaging in non-commercial illicit sexual conduct with minors in Haiti, after traveling to that country for another purpose. He challenged Congress's authority to enact the above statute under the Foreign Commerce Clause. n80 The Fourth Circuit rejected the challenge.
After extensive discussion of whether to import the Supreme Court's interstate commerce jurisprudence in interpreting the Foreign Commerce Clause, the Fourth Circuit adopted as "a useful starting point" n81 the first two of the three categories which, under 
 [*237]  Lopez, n82 Congress may regulate: (1) "the use of the channels of [foreign] commerce" and (2) "the instrumentalities of [foreign] commerce, or persons or things in [foreign] commerce." n83 The court concluded, however, that the third Lopez category - permitting the regulation of "activities that substantially affect interstate commerce" - was "unduly demanding" n84 because the regulation of foreign commerce, like matters of foreign affairs, requires "a unitary federal voice and expansive authority." n85 In place of the third Lopez category, the court substituted the phrase "activities that demonstrably affect [foreign] commerce." n86
Applying the test contemplated by the last-quoted phrase, the court upheld the statute, finding that it is "eminently rational to believe that prohibiting the non-commercial sexual abuse of children by Americans abroad has a demonstrable effect on sex tourism and the commercial sex industry." n87 To hold otherwise, the court reasoned, would allow U.S. citizens to

 effectively avoid all police power by leaving U.S. soil and traveling to a nation with weak or non-existent sexual abuse laws ... [and] to act with impunity - a reality that could undoubtedly have broad ramifications on our standing in the world, potentially disrupting diplomatic and even commercial relationships. n88

 The court also rejected the defendant's argument that Congress may not regulate conduct that occurs inside another country, pointing out that the nationality principle permits a country to apply its statutes to extraterritorial acts of its own nationals without infringing on the other country's sovereignty, and that "when a U.S. citizen acts in a foreign country, the United States, by extension of its citizenship, also engages in the activity with that country." n89
D. Foreign Sovereign Immunities Act
 
 The Foreign Sovereign Immunities Act (FSIA) prohibits suits against foreign states and their agencies or instrumentalities, unless the suit falls within one of the exceptions specified in the Act. One of these exceptions is the commercial activity exception, which withdraws 
 [*238]  sovereign immunity in any case "in which the action is based upon a commercial activity carried on in the United States by [a] foreign state." n90
In OBB Personenverkehr AG v. Sachs, n91 the outcome turned on the meaning of the italicized phrase above. The plaintiff, a California domiciliary, purchased a Eurail pass over the Internet from a Massachusetts-based travel agent for rail travel in Europe. The plaintiff sustained severe injuries when she fell onto the tracks at a train station in Innsbruck, Austria, while attempting to board a train operated by the defendant, a company owned by the Austrian government. She sued the company, arguing that her claim was "based upon" the company's sale of the pass to her in the United States, and thus fell within the FSIA's commercial activity exception. The Ninth Circuit agreed, reasoning that the sale of the Eurail pass was a commercial activity carried on in the United States and constituted "an essential element" upon which the plaintiff's claims were based. n92
The U.S. Supreme Court reversed. The Court relied heavily on its earlier decision in Saudi Arabia v. Nelson, n93 which held that the "based upon" inquiry must focus on the "gravamen of the complaint," namely the conduct that actually injured the plaintiff, and not the preliminary acts that later led to the injury. n94 In Nelson, the plaintiff was recruited in the United States, but the conduct that actually injured him occurred in Saudi Arabia. The Court held in that case that the commercial activity exception did not apply because the gravamen 
 [*239]  of the plaintiff's complaint was the injury that occurred in Saudi Arabia. Likewise, in Sachs, the Court concluded that "the conduct constituting the gravamen of [the plaintiff's] suit plainly occurred abroad. All of her claims turn on the same tragic episode in Austria, allegedly caused by wrongful conduct and dangerous conditions in Austria, which led to injuries suffered in Austria." n95 Under this test, "the mere fact that the sale of the Eurail pass would establish a single element of a claim is insufficient to demonstrate that the claim is 'based upon' that sale for purposes of [the commercial activity exception]." n96
II. Choice of Law
A. Contracts
1. Contracts with Choice-of-Law and Forum Selection Clauses
a. Introduction
 
 Some contracts contain both a choice-of-law clause and a forum selection clause (almost always pointing to the same state), n97 or both a choice-of-law clause and an arbitration clause (and occasionally all three clauses). Some contracts contain only one of those clauses. This Section discusses cases in which the contract contained a choice-of-law clause, n98 but not cases involving only a forum selection clause or only an arbitration clause unless they raise significant choice-of-law issues.
The combination of a choice-of-law clause with a forum selection clause pointing to the same state provides strong assurance that the chosen court will enforce the choice-of-law clause. If another court adjudicates the case, there is no guarantee that the court will honor the forum selection clause by referring the parties to the chosen court, but the odds are high, given how favorably American courts treat 
 [*240]  these clauses. n99 The odds are even better with arbitration clauses, because the Supreme Court's interpretation of the Federal Arbitration Act (FAA) n100 in cases such as AT&T Mobility LLC v. Concepcion n101 has significantly reduced the grounds upon which a court may invalidate these clauses under state law.
Thus, by combining a choice-of-law clause with a forum selection clause, one party can avoid the protections that the non-chosen state's law provides for the other party. This combination is becoming increasingly common in employment contracts and consumer contracts. This is why some foreign systems directly protect consumers, employees, and other presumptively weak parties by imposing general or targeted restrictions to party autonomy in contracts involving these parties. n102 For example, in the European Union, the Rome I Regulation provides that a choice-of-law agreement may not deprive a "passive" consumer or an employee of the protection of the mandatory rules of the state whose law would have been applicable in the absence of the agreement - the lex causae. n103 In addition, the Brussels I Regulation safeguards that protection by declaring that pre-dispute forum selection clauses disfavoring consumers or employees are not enforceable. n104
By contrast, U.S. law, being "generally more pro-business and antiregulatory," n105 does not single out weak parties for protection. 
 [*241]  For example, the Restatement (Second), erring on the side of under-regulation, provides only a single party-autonomy rule (section 187) for all contracts, rather than several rules for different types of contracts or issues, as it does for contracts that do not contain a choice-of-law clause. n106 Section 187 imposes only two flexible limitations to party autonomy: (1) the easily met requirement for a "substantial relationship" to the chosen state or another "reasonable basis" for the choice, and (2) the requirement that the application of the chosen law must not violate a "fundamental policy" of the lex causae. n107 The Uniform Commercial Code (UCC) also devotes only one section to party autonomy, section 1-301, which is even more laconic and flexible than section 187 of the Restatement. n108 A 2001 attempt to single out consumers for protective treatment was abandoned in the face of fierce opposition by business interests. n109
Fortunately, in some states, statutes fill part of the vacuum. As documented elsewhere, n110 several substantive statutes regulating consumer, employment, franchising, or insurance contracts contain "localizing provisions" mandating the statute's application to contracts that have specified connections with the enacting state. Some of these statutes expressly prohibit waiver of their provisions, either directly or indirectly through the contractual choice of another state's law, and a few of them also prohibit forum selection clauses conferring jurisdiction on the courts of another state. n111 These localizing provisions are veritable choice-of-law rules of the unilateral genre. When applicable, they largely obviate the need for a judicial choice-of-law analysis. Section 6 of the Restatement (Second) confirms this elementary proposition when it provides that a court "will follow a statutory directive of its own state on choice of law" and will apply the Restatement only "when there is no such directive." n112 Thus, when litigation takes place in a state that has such a statute, the court's job is confined to determining whether the case falls within the scope of the particular statute. When litigation takes place in another state, the application of such a statute depends on the contacts 
 [*242]  of the forum state and its choice of law rules or approaches. The following text discusses cases involving both scenarios.
b. Choice-of-Law and Forum Selection Clauses
i. Employment Contracts
 
 Verdugo v. Alliantgroup, L.P. n113 is one of several employment contract cases illustrating how, by combining a choice-of-law clause with a forum selection clause, an employer can avoid the protections that the non-chosen state's law provides for the employee. The employer, a Texas-based company, hired the plaintiff, a California domiciliary, for clerical work in California. The contract contained Texas choice-of-law and forum selection clauses. The employee filed a putative class action in California on behalf of similarly situated California employees, alleging that the employer violated several provisions of the California Labor Code by failing to pay overtime wages and vacation pay and to provide meal breaks.
The implicated provisions were unwaivable, but the Labor Code did not expressly prohibit non-California choice-of-law or forum selection clauses. Nevertheless, California courts have adopted the principle that a non-California forum selection clause in a California employment contract is not enforceable unless the party seeking to enforce the clause (in this case, the employer) discharges the burden of showing that litigation in the chosen state will not substantially diminish the employee's unwaivable rights under California law.
In Verdugo, the employer argued that: (1) the Texas forum selection clause was not a waiver of the employee's California rights but rather a consent to litigate those rights elsewhere; and (2) the Texas choice-of-law clause did not amount to a waiver because Texas courts would "most likely" n114 not enforce that clause and instead would apply California law. The court dismissed the second argument as "conclusory speculation," n115 and then addressed the first argument as follows:

 Tthe Employment Agreement's forum selection clause has the potential to contravene an antiwaiver statute designed to protect California residents from business practices that do not meet Labor Code standards. If enforced, the forum selection clause would require [the plaintiff] to litigate her Labor Code wage claims in Texas, where the Employment Agreement's choice-of-law clause would require the court to apply Texas law unless a Texas court decides not to enforce the choice-of-law clause. Accordingly, to prevent the forum 
 [*243]  selection clause from operating as a waiver of [the plaintiff's] unwaivable Labor Code rights ... [the defendant must] show [that] enforcing the forum selection clause will not diminish [the plaintiff's] substantive rights in any way. n116

 The defendant could discharge this burden, the court continued, "only by showing the foreign forum provides the same or greater rights than California, or the foreign forum will apply California law on the claims at issue." n117 The court found that the defendant did not meet this burden and thus allowed the action to go forward. n118
Acharya v. Microsoft Corp. n119 involved an employment contract between an English subsidiary of Microsoft, a Washington headquartered corporation, and a former Microsoft employee who was hired by the subsidiary under an arrangement with Microsoft. The employee worked in London and reported to a supervisor in Belgium, but the contract contained Swiss forum selection and choice-of-law clauses. The employee sued Microsoft under the Washington Law Against Discrimination (WLAD), n120 alleging sex discrimination by the Belgian supervisor. Invoking the Swiss forum selection clause, Microsoft filed a motion to dismiss. The Washington court denied the motion. The court treated Microsoft as the plaintiff's de facto employer and assumed, for the purposes of the motion, that the discriminatory acts occurred in Washington. The court noted that, under Washington law, "the right to be free from discrimination is nonnegotiable and cannot be waived in contract," and that "under the forum selection clause and the choice of law provision, [the plaintiff's] WLAD claim would not be cognizable." n121 The court concluded that enforcing these clauses would be contrary to Washington's public policy. n122
Cardoni v. Prosperity Bank n123 involved employment contracts between a Texas bank and the former executives of an Oklahoma bank 
 [*244]  acquired by the Texas bank. The contracts contained Texas forum selection and choice-of-law clauses, as well as noncompetition and nonsolicitation covenants that were valid under Texas law. When four executives went to work for a competitor, the Texas bank sued in Texas to enforce the covenants. Following section 187 of the Restatement (Second), n124 the Fifth Circuit found that, in the absence of the choice-of-law clauses, Oklahoma law would govern the contracts, and then compared the policies of the two states - "Texas's view which prioritizes parties' freedom to contract and Oklahoma's which emphasizes the right to earn a living and competition." n125 After finding that Oklahoma had a greater interest in applying its law than Texas, the court examined the third prong of section 187(2), which is whether the application of Texas law would violate a "fundamental policy" of Oklahoma. The court answered this question in the affirmative with regard to the noncompetition covenants and in the negative with regard to the nonsolicitation covenants. n126
In Brown & Brown, Inc. v. Johnson, n127 a New York employment contract between a Florida employer and a New York employee contained a Florida choice-of-law clause and three non-compete covenants. Under New York law, covenants that are more restrictive than necessary for the protection of a legitimate interest of the employer or that impose undue hardship on the employee are invalid. By contrast, a Florida statute prohibited courts from considering the hardship that a restrictive covenant may impose on the employee. Moreover, the statute provided that a court: (1) must construe a covenant "in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement"; and (2) "shall not employ any rule of contract construction that requires the court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract." n128 The New York Court of Appeals held that the Florida statute violated New York's public policy and remanded the case for determination of whether the covenants were enforceable under New York law.

 [*245] 
ii. Consumer Contracts
 
 Wise v. Zwicker & Associates, P.C. n129 arose out of a credit card contract between an Ohio consumer and a Utah credit card company. The contract contained a Utah choice-of-law clause and a unilateral attorney-fee provision requiring the consumer to pay the company's attorney fees in the event the consumer defaulted. This provision was valid under Utah law, but not under Ohio law. The consumer defaulted and the company's attorneys demanded payment of the debt, plus attorney fees. The consumer countered by filing a class action against the attorneys under the federal Fair Debt Collection Practices Act (FDCPA), which bars debt collectors from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt," or employing "unfair or unconscionable means to collect or attempt to collect any debt." n130 Whether the defendants used false or misleading means (and thus whether the plaintiff had an action under the FDCPA) depended on whether Utah or Ohio law governed the question of attorney fees. In turn, this hinged on the enforceability of the Utah choice-of-law clause.
The Sixth Circuit examined this question under section 187 of the Restatement (Second), n131 which is followed in the forum state of Ohio. The court found that "it would be against the fundamental policy of Ohio to enforce the fee-shifting provision" in the credit card contract, noting that a rule designed "to protect a person against the oppressive use of superior bargaining power will generally be interpreted to reflect the fundamental policy of a state." n132 This "protects customers like [the plaintiff] against the creditor's superior bargaining power." n133 However, based on the record before it, the court could not determine whether the case met the other two prongs for defeating a choice-of-law clause under section 187, namely: (1) whether Ohio law would have been applicable in the absence of that clause, and (2) whether Ohio had a materially greater interest than Utah in applying its law. The court remanded the case to the district court for making these determinations.
First Intercontinental Bank v. Ahn n134 was also an attorney-fee dispute. A loan contract between a Georgia bank and a California borrower contained a Georgia choice-of-law clause and a unilateral attorney-fee provision requiring the borrower to pay the bank's attorney fees in the event of default. Section 1717 of the California Civil Code allows courts to convert such a provision into a bilateral provision 
 [*246]  and award attorney fees to the other party if that party prevails on the contract. In this case, the bank sued the borrower in California and lost. Under section 1717, the borrower would therefore be entitled to attorney fees, unless that section was inapplicable because of the Georgia choice-of-law clause. The Ninth Circuit concluded that section 1717 applied, and affirmed a judgment awarding attorney fees to the borrower. Following section 187 of the Restatement (Second), the court found that: (1) California law would have been applicable but for the Georgia clause; (2) section 1717 embodied a fundamental policy of California; n135 and (3) California had a materially greater interest in applying its law than Georgia. n136
In Starkey v. G Adventures, Inc., n137 the plaintiff booked a ticket over the Internet for a vacation tour to the Galapagos Islands. The confirmation emails she received from the tour company informed her that her ticket was subject to terms and conditions contained in a hyperlinked document, which she was directed to read. The document contained a forum selection clause conferring exclusive jurisdiction on Ontario courts. Like most consumers, the plaintiff never clicked on the hyperlinks. Upon her return from the Galapagos, the plaintiff sued the company in New York, alleging that a company employee sexually assaulted her during the tour. The court rejected her argument that the forum selection clause was unenforceable and affirmed the dismissal of her action. The court concluded that the company's emails "sufficiently directed [the plaintiff's] attention" to the booking terms and conditions by means of a hyperlink and that the forum selection clause was "reasonably communicated" to her through the hyperlinked document, which the court analogized to the method of cross-referencing language in a printed promotional brochure. n138 The court noted that, because the company conducted tours on every continent, it "was reasonable for [it] to select a single venue for [consumers'] suits." n139 The court rejected all the plaintiff's other arguments against enforcing the clause.

 [*247] 
c. Choice-of-Law Clauses and Renvoi
 
 It is hornbook law that, when the contracting parties agree to a choice-of-law clause designating the law of State X as the law applicable to the contract, that choice does not include the conflicts rules of State X, unless of course the parties provide otherwise. n140 The main reason the parties include a choice-of-law clause in their contract is to avoid the uncertainty that, at least in the United States, is inherent in the judicial choice-of-law process. The inclusion of the chosen state's conflicts law runs counter to that reason because it may lead to renvoi, which creates additional uncertainties. This is why most choice-of-law codifications and all international conventions, along with the Restatement (Second), provide that a contractual choice of law presumptively excludes the chosen state's conflicts law. In fact, the European Union's Rome I Regulation takes a harder line by adopting an anti-renvoi rule, as opposed to a presumption rebuttable by contrary intention. n141
However, in the United States there seems to be a misunderstanding as to what constitutes a rule of conflicts law. Some people seem to think that all conflicts rules are found only in the case law, or in statutes conspicuously labeled "conflict of laws." It is of course true that, in the United States, the vast majority of conflicts rules are found in the case law, and only two states (Louisiana and Oregon) have enacted statutes exclusively devoted to choice of law. However, as noted in the introduction to this section, many substantive statutes contain "localizing provisions," which qualify as choice-of-law rules of the unilateral type. n142 Other substantive statutes contain bilateral choice-of-law rules. n143 For example, the Uniform Probate Code contains both a unilateral rule (section 1-301) and three bilateral rules (sections 2-401, 2-506 and 2-703). n144

 [*248]  Thus, even in the United States, statutory choice-of-law rules, especially unilateral ones, are not as uncommon as some common law lawyers assume. For example, section 3-5.1 of New York's Estates, Powers and Trusts Law (EPTL) contains numerous such rules under the appropriately descriptive heading "Rules Governing Wills Having Relation to Another Jurisdiction." One of these rules, section 3-5.1(b)(2), provides that "the intrinsic validity, effect, revocation or alteration of a testamentary disposition of personal property, and the manner in which such property devolves when not disposed of by will, are determined by the law of the jurisdiction in which the decedent was domiciled at death." n145 This rule was the focus of the dispute in Ministers and Missionaries Benefit Board v. Snow. n146
The dispute was between the first and second wives of a deceased Colorado domiciliary regarding entitlement to death benefits under his retirement plan. The plan was administered by MMBB, a New York not-for-profit corporation based in New York. The membership agreements governing the plan for all its members, including the decedent, contained New York choice-of-law clauses. In his enrollment form, the decedent designated his first wife as his primary beneficiary and her father as the contingent beneficiary, but he did not change these designations when he later divorced his first wife and married the second. Under Colorado successions law, the divorce would automatically revoke both designations, but under New York law, it would revoke only the designation of the first wife as the primary beneficiary. Thus, the outcome of this dispute depended on whether the court would apply Colorado law or New York law. The New York choice-of-law clause should have easily answered this question, unless the clause was unenforceable for some reason such as violation of public policy, which was not alleged. However, the second wife argued that the choice-of-law clause included the above-quoted section 3-5.1(b)(2) of the EPTL, which required the application of Colorado law. In turn, the validity of this argument hinged on whether section 3-5.1(b)(2) of the EPTL was a conflicts rule.
The New York Court of Appeals answered the question in the affirmative, but in light of a strong dissent, the court had to provide a much longer explanation than would otherwise have been necessary. The court relied heavily on its decision in IRB-Brasil Resseguros, S.A. v. Inepar Invs., S.A., n147 which held that a New York choice-of-law clause did not include New York's common law rules of conflicts law. The Snow court concluded that section 3-5.1(b)(2) of the EPTL should be treated the same way because it was "merely a codification of a 
 [*249]  longstanding common-law conflict-of-laws principle." n148 However, the common law origin of a conflicts rule should be irrelevant. What is relevant is its function. The difference between substantive and conflicts law is that conflicts law is "indicative" law rather than "dispositive" law. n149 That is, it does not itself dispose of the merits of a case but simply points to the substantive law that will do so. A rule that performs this function is a conflicts rule, whether it resides in the case law or in a statute that does not even purport to codify the common law.
The court did a much better job explaining why it would not be sensible to interpret the New York choice-of-law clause as encompassing section 3-5.1(b)(2) of the EPTL, which would then lead to the application of Colorado law:

 We should apply the most reasonable interpretation of the contract language that effectuates the parties' intended and expressed choice of law ... . To do otherwise - by applying New York's statutory conflict-of-laws principles, even if doing so results in the application of the substantive law of another state - would contravene the primary purpose of including a choice-of-law provision in a contract - namely, to avoid a conflict-of-laws analysis and its associated time and expense. Such an interpretation would also interfere with, and ignore, the parties' intent, contrary to the basic tenets of contract interpretation. n150

 In this particularly case, the court explained, such an interpretation would lead to the application of the laws of many different states, depending on where the retirement plan's members were domiciled at the time of their death. This would be particularly problematic because the members were "ministers and missionaries, who presumably are more likely than the general population to move often and who may live in all parts of the world, not just in different states." n151 In contrast, "the application of New York substantive law regarding benefit distribution would provide stability, certainty, predictability and convenience." n152
d. Other Issues of Scope
 
 Among other cases involving the question of the scope of a choice-of-law clause were the following:

 [*250]  . two cases that held that the clause did not include the chosen state's statute of limitations, which the forum state characterized as procedural; n153
. one case that held that the clause did not include the chosen state's statute of frauds, which the forum state characterized as procedural; n154 and
. several cases that held that the wording of the clause was, n155 or was not, n156 broad enough to encompass the parties' tort claims arising from or related to the parties' contractual relationship.
e. Clauses Prohibited by Statute
 
 Michels Corp. v. Rockies Express Pipeline, L.L.C. n157 was one of several cases involving substantive statutes that, as noted earlier, n158 contain localizing provisions mandating the application of the enacting state's law. When litigation takes place in that state, the court's job is confined to simply determining whether the case falls within the scope of the particular statute. In this case, the forum state of Ohio had a statute that prohibited non-Ohio forum selection and choice-of-law clauses in construction contracts for improvements to Ohio real property. The contract at issue was between a Kansas company and a Wisconsin company and contained Kansas forum selection and choice-of-law clauses. The Kansas company argued that the statute should be confined to contracts in which at least one party is an Ohio party. After examining the statute's wording and legislative history and comparing it with similar statutes from other states 
 [*251]  (some of which contained such a limitation regarding the parties), the court rejected the argument and held both clauses unenforceable. n159
Section 410.42 of the California Code of Civil Procedure similarly prohibits non-California forum selection clauses in contracts "between the contractor and a subcontractor with principal offices in [California], for the construction of a public or private work of improvement in [California]." n160 In Vita Planning and Landscape Architecture, Inc. v. HKS Architects, Inc., n161 a contract between a California landscape design firm and a Texas architecture firm for a California hotel construction contained a Texas forum selection clause (but not a choice-of-law clause). A California trial court refused to apply section 410.42 on the ground that this was not an action between a contractor and a subcontractor, but a contract between design professionals. The Court of Appeals reversed, after determining that the parties fit the definitions of contractor and subcontractor. The court held that the Texas forum selection clause was unenforceable.
O'Hara v. Globus Medical, Inc. n162 was a dispute between two Louisiana sales representatives of a Louisiana distributor of medical devices manufactured by a Pennsylvania company. The contracts between the representatives and the distributor contained Pennsylvania choice-of-law clauses and non-compete covenants that were valid under Pennsylvania law. A Louisiana statute prohibited the covenants as well as non-Louisiana pre-dispute forum selection and choice-of-law clauses in employment contracts. The distributor argued that the statute did not apply to distributorship contracts. The Louisiana court rejected the argument, finding that under a proper interpretation, the statute applied to these contracts. The court held the choice-of-law clauses unenforceable on that ground.
f. Law Governing Forum Selection Clauses
 
 One question on which American case law is unclear is which state's law governs the validity, enforceability, and interpretation of forum selection clauses. The question appears in different settings, 
 [*252]  depending on (1) whether the action is filed in the court designated by the forum selection clause or in another court, and (2) whether the contract contains a choice-of-law clause, in addition to the forum selection clause. The various scenarios and the solutions reached by American courts, as well as internationally, are discussed in another publication. n163 The most difficult scenario is one in which
(1) the contract contains both a choice-of-law clause and a forum selection clause; and
(2) the action is filed in a state other than the one designated in the forum selection clause.
Which state's law should govern the forum selection clause in such a case is a question that one court has characterized as the "chicken or the egg" question. n164
In the last two decades, the majority of cases have applied the law of the forum qua forum, either reflexively or consciously, n165 while a small number of cases applied the law designated in the choice-of-law clause. n166 More recently, a few cases have differentiated between issues of enforceability, on the one hand, and interpretation, on the other, and applied the lex fori to the former and the chosen law to the latter. n167 In 2015, this author identified only one case that applied the chosen law to the forum selection clause n168 and one case that applied both the chosen law and the forum law. n169 All other cases applied the lex fori to issues of enforceability, n170 interpretation, n171 or 
 [*253]  both. n172 It seems that the dominance of the lex fori on this issue is such that, in at least one of those cases, both parties stipulated that the law of the forum applied. n173

 [*254] 
2. Choice-of-Law Clauses and Arbitration Clauses
a. The Supreme Court's Latest Pronouncement
 
 In DirecTV, Inc. v. Imburgia, n174 the U.S. Supreme Court reversed a California Court of Appeal decision discussed in last year's Survey, which had disagreed with the Ninth Circuit's resolution of the same issue. n175 The case involved contracts between DirecTV, a satellite-television service provider, and California consumers. Section 9 of the contracts mandated arbitration and prohibited class arbitration. However, section 9 also provided that, if the law of "your state" - in this case California - "would find this agreement to dispense with class arbitration procedures unenforceable, then this entire Section 9 is unenforceable." n176 Section 10 of the contract provided that section 9 "shall be governed by the Federal Arbitration Act." n177 Curiously, the Court did not discuss section 10, instead focusing all its attention on section 9.
California's Consumers Legal Remedies Act (CLRA) n178 prohibited class-arbitration waivers in consumer contracts and, in the 2005 case Discover Bank v. Superior Court, n179 the California Supreme Court held these clauses unenforceable. Because the contracts at issue in Imburgia were entered into in 2007, the part of section 9 that prohibited class arbitration was unenforceable from its inception, and, along with it, the whole arbitration clause. Thus, DirecTV could not compel the plaintiffs to submit to arbitration. However, in 2011, when the Imburgia parties were already in litigation, the U.S. Supreme Court held in AT & T Mobility LLC v. Concepcion n180 that the FAA n181 preempted the Discover Bank rule. The Court's precise words were that "class arbitration, to the extent it is manufactured by Discover Bank rather than consensual, is inconsistent with the FAA." n182 In other words, Concepcion held that a state may not compel a party to engage in class arbitration when the agreement prohibits it.
However, Concepcion did not prohibit an agreement to have class arbitration, nor, a fortiori, an agreement not to have arbitration. After 
 [*255]  all, "arbitration is a matter of 'consent, not coercion.'" n183 Under the Discover Bank rule, section 9 of DirecTV's contracts in Imburgia amounted to an agreement not to have arbitration. The question was whether this agreement survived the 2011 decision in Concepcion. The Supreme Court answered this question in the negative, in an opinion written by Justice Breyer and joined by five Justices. Justice Ginsburg dissented, in an opinion joined by Justice Sotomayor, reasoning that the majority impermissibly extended Concepcion.
The majority opinion began by acknowledging that the FAA "allows parties to an arbitration contract considerable latitude to choose what law governs some or all of its provisions, including the law governing enforceability of a class-arbitration waiver," and that, "in principle, [the parties] might choose to have portions of their contract governed by the law of Tibet, the law of pre-revolutionary Russia, or (as is relevant here) the law of California including the Discover Bank rule and irrespective of that rule's invalidation in Concepcion." n184 However, the majority found that the Imburgia choice was invalid to the extent it "included invalid California law," n185 that is, a law that the Supreme Court had "authoritatively invalidated" n186 four years later. The Court concluded that the California Court of Appeal's contrary holding did not place arbitration contracts "on equal footing with all other contracts," did not give "due regard ... to the federal policy favoring arbitration," and, therefore, was "pre-empted by the Federal Arbitration Act." n187
It is easier to accept the majority's holding (and not just because one has no choice) than to be persuaded by its reasoning. The majority professed deference to the California court's interpretation of the California choice-of-law clause because "California courts are the ultimate authority on that law." n188 But instead of explaining directly and clearly why that interpretation was invalid under Concepcion, the majority spent much of the opinion questioning the sincerity of that interpretation. The majority provided six reasons for concluding that the interpretation was invalid, but almost all of them amounted to inferences that the California court would not have adopted that interpretation in contracts not involving arbitration.
In her dissent, Justice Ginsburg noted that the majority decision was "a dangerous first" in "reversing a state-court decision on the ground that the state court misapplied state contract law." n189 She 
 [*256]  criticized the majority for interpreting the California choice-of-law clause "in a manner most protective of the drafting enterprise" rather than "giving the customer, not the drafter, the benefit of the doubt." n190 Ginsburg also drew a sharp contrast with the way the European Union and other countries treat arbitration clauses in consumer contracts of adhesion, specifically noting that "disputes between providers and consumers in the EU are arbitrated only when the parties mutually agree to arbitration on a post-dispute basis." n191
b. State Court Resentment
 
 In Schumacher Homes of Circleville, Inc. v. Spencer, n192 a contract between a house builder and a buyer contained an arbitration clause and a delegation clause authorizing the arbitrator to determine "all issues regarding the arbitrability of the dispute." n193 The contract did not contain a choice-of-law clause and the case did not present horizontal choice-of-law issues. However, the West Virginia Supreme Court took the opportunity to vent its frustration, rooted in previous reversals of its decisions by the United States Supreme Court. n194 The West Virginia court began its opinion by noting that, "in recent years, the United States Supreme Court has doled out several complicated decisions construing the Federal Arbitration Act, ... [which] create an eye-glazing conceptual framework for interpreting contracts with arbitration clauses that is politely described as 'a tad oversubtle for sensible application.'" n195 Proceeding to the merits, the court reasoned that "arbitrability" is an ambiguous term that usually refers to the scope of the arbitration clause. Thus, a delegation clause that authorizes the arbitrator to decide the arbitrability of the dispute "does not clearly and unmistakably confer authority to the arbitrator to decide the gateway questions regarding the validity, revocability, and enforceability of the arbitration clause." n196 Based on this reasoning, the court affirmed the lower court decision, which had held the delegation clause unenforceable.

 [*257] 
c. State Courts' Best Efforts
 
 Pinela v. Neiman Marcus Group, Inc. n197 involved an employment dispute between the Neiman Marcus Group (NMG), a national fashion retailer headquartered in Texas, and its California employees. Each of the employment contracts contained an arbitration clause, a delegation clause, and a choice-of-law clause:
. The first clause mandated individual arbitration (prohibiting class arbitration) of all disputes between the parties "arising out of or connected in any way" with the employment, including claims for "violations of any ... state ... statute, ordinance, regulation, or public policy relating to ... meal or rest breaks, ... minimum wage and overtime pay, ... or payment at termination." n198
. The second clause delegated to the arbitrator all decisions concerning the arbitration agreement, including "the way it was formed, its applicability, meaning, scope, enforceability, or any claim that all or part of this Agreement is void or voidable." n199
. The third clause was a very complicated (or as the court called it "exotic") choice-of-law clause. It provided that the arbitration agreement was to be governed by Texas law, and for claims or defenses arising under federal law, by "the substantive law as set forth by ... the United States Court of Appeals for the Fifth Circuit." n200 The clause also provided, however, that "the arbitrator does not have the authority to enlarge, add to, subtract from, disregard, or ... otherwise alter the parties' rights under such laws." n201
The plaintiffs filed a class action in California on behalf of all current and former California employees of NMG, alleging various violations of the California Labor Code. First, the court discussed the delegation clause, finding it unenforceable as both procedurally and substantively unconscionable under California law. The court reasoned that the "exotic" choice-of-law clause rendered the delegation clause incomprehensible to "an unsophisticated layperson like [the plaintiff]" n202 and thus procedurally unconscionable, noting that "obscure, 
 [*258]  difficult to comprehend choice of law clauses may serve as traps for the unwary in mandatory arbitration agreements." n203 The delegation clause was substantively unconscionable because the choice-of-law clause prevented the arbitrator from altering the parties' rights under Texas law, and thus from applying California unconscionability law. As the court put it, "when the weaker party to an adhesion contract can show the contract is unconscionable under California law, a contractual provision requiring the application of a different state's law to enforce the contract is itself unenforceable." n204 Thus, "the elimination of [the plaintiff's] ability to contend that the NMG Arbitration Agreement as a whole is unconscionable under California law renders the delegation clause substantively unconscionable." n205
Next, the court examined the enforceability of the arbitration agreement and, after discarding the choice-of-law clause, held that the agreement was unconscionable under California law and thus unenforceable. To force the plaintiff to arbitrate under Texas law, the court reasoned, would "eliminate[] his ability to argue unconscionability using California public policy as a measuring stick for enforceability." n206 Moreover, the Texas choice-of-law clause was "plainly obnoxious to public policy in California" n207 because it "disabled California substantive law," n208 thus amounting to "an advance waiver" n209 of substantive rights of the plaintiff that the California Labor Code declared unwaivable.
The court reaffirmed this conclusion under the "long route" n210 of section 187 of Restatement (Second). The court compared Texas's interest in "providing a hospitable legal climate for Texas-based employers" with California's countervailing interest in "ensuring that its statutory protections for California-based workers are not selectively disabled by out-of-state companies wishing to do business in this state," and concluded that California had the "materially greater interest." n211 That being the case, the court concluded, the parties' choice of Texas law would not be enforced "for the obvious reason that it would be contrary to fundamental policy in California to do so." n212

 [*259]  In Mid-South Maintenance Inc. v. Paychex Inc., n213 a contract between a Tennessee party and a New York party contained a New York choice-of-law clause and a clause mandating arbitration "in accordance with the commercial rules of the American Arbitration Association." n214 New York law, but not Tennessee law, treated the quoted phrase as the equivalent of a delegation clause because the AAA Rules provide that issues of arbitrability, including questions regarding the existence, scope, or validity of the arbitration agreement, are to be determined by the arbitrator. Applying New York law, the Tennessee court held that the arbitrator should determine whether the arbitration agreement was valid and, if so, whether it encompassed the tort claims in question.
d. Foreign Seamen
 
 Escobar v. Celebration Cruise Operator, Inc. n215 is one of several cases in which foreign seamen whose employment contracts mandate arbitration outside the United States have failed to defeat their employers' motion to compel arbitration. n216 In Escobar, the contract between a Honduran seaman and a Bahamian corporation headquartered in Florida contained Bahamian arbitration and choice-of-law clauses. The seaman sustained injuries while working on the employer's ship and sued the employer under the Jones Act. n217 Invoking the "prospective waiver" dictum in Mitsubishi Motors, n218 the seaman argued that the arbitration clause was void as against public policy because that clause, in tandem with the Bahamian choice-of-law clause, would operate as a prospective waiver of his statutory rights under the Act.

 [*260]  The Eleventh Circuit rejected the argument. The court noted that Article II of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards mandates the enforcement of arbitration clauses unless they are "null and void." n219 The court opined that "the null-and-void clause encompasses only those defenses grounded in standard breach-of-contract defenses - such as fraud, mistake, duress, and waiver - that can be applied neutrally before international tribunals." n220 The court drew the italicized phrase from a previous Eleventh Circuit case, which had made it out of thin air. n221 This artificial restriction precluded an unconscionability defense under Article II because, "although ... [it] can be styled as a claim that the arbitration agreement is 'null and void,' ... it cannot be applied neutrally before international tribunals." n222 More to the point, the court said, "Article II contains no explicit or implicit public-policy defense at the initial arbitration-enforcement stage," in contrast to Article V, which "expressly recognizes public-policy defenses as appropriate at the award-enforcement stage." n223 In the court's mind, this juxtaposition led to the inescapable conclusion that "public-policy arguments cannot be raised at the arbitration-enforcement stage," and that the seaman "must instead wait until the award-enforcement stage to assert an Article V public-policy claim," n224 the so-called second round.
What this logic fails to consider is that, in most cases, there will never be a second round in the United States. If the employer prevails in the foreign arbitration, he will have no reason to seek enforcement of the award in the United States. If the seaman prevails but the amount of the award is meager, the seaman may not seek to vacate the award in the United States. The New York Convention provides that only the courts of the country in which, or under the law of which, an award was made (here the Bahamas) has jurisdiction to set aside the award. n225 The American court may simply "confirm" the award, or refuse to enforce it on public policy grounds (or other Article V grounds), but only if the prevailing party seeks to enforce it in the United States. As explained elsewhere, this reality is one of several reasons for which the public policy defense should be available as a ground for refusing to enforce an arbitration agreement. n226 Recently, the American Law Institute has taken the same position. A 
 [*261]  tentative draft of the Restatement of the U.S. Law of International Commercial Arbitration provides that "[a] court determines in accordance with federal law whether enforcement of an international arbitration agreement violates public policy." n227
In two recent cases, Aggarao v. MOL Ship Management Co., n228 and Asignacion v. Rickmers Genoa Schiffahrtsgesellschaft mbH & Cie KG, n229 foreign seamen in circumstances similar to Escobar did get a second round because the courts treated their motions to vacate the foreign arbitration awards as motions to refuse to recognize them. Both cases involved awards rendered in the Philippines that granted meager compensation amounts to the seamen under Philippine law. In Aggarao, the court granted the seaman's motion after finding that, by denying the plaintiff's statutory rights under the Jones Act and confining him to the meager compensation provided by Philippine law, the foreign arbitration award violated U.S. public policy and was therefore unenforceable. In the court's words, the award "transgressed this country's strong and longstanding policy of protecting injured seafarers and providing them special solicitude." n230
In Asignacion, the Fifth Circuit was far less sympathetic. The Filipino seaman was injured while working aboard the defendant's ship in the port of New Orleans. The defendant was a German corporation and the ship was sailing under the flag of the Marshall Islands, which has adopted the general maritime law of the United States. When the seaman initially sued the shipowner in Louisiana, the court granted the shipowner's motion to compel arbitration in the Philippines under Philippine law, as provided in the seaman's employment contract. The arbitration panel "refused to apply, or even consider applying, United States or Marshall Islands law," n231 and awarded the seaman a "lump sum of $ 1,870" (yes!), even though the American court had found that the seaman had "sustained severe burns to 35% of his body." n232
Nevertheless, the Fifth Circuit, in an opinion signed by Judge Priscilla Owen, rejected the seaman's argument that recognition of the arbitral award was contrary to U.S. public policy. Regarding the arbitrators' refusal to consider the application of United States or Marshall Islands law, the court observed that "courts are unable to correct this sort of unexceptional legal error (if one was in fact made) when reviewing an arbitral award." n233

 [*262]  As for the public policy exception, the court repeated several statements from other cases (none of which involved similar circumstances) to the effect that the exception is "to be construed narrowly to be applied only where enforcement would violate the forum state's most basic notions of morality and justice." n234 The court saw "no reason to depart from that standard." n235 Among other things, the court quoted the Supreme Court's decision in Scherk v. Alberto-Culver Co., n236 which involved a commercial transaction between sophisticated parties, that "to determine that American standards of fairness ... must [apply] demeans the standards of justice elsewhere in the world, and unnecessarily exalts the primacy of United States law over the laws of other countries." n237 The court concluded that "United States public policy does not necessarily disfavor lesser or different remedies under foreign law." n238
Finally, the court addressed the seaman's argument that enforcement of the award would amount to a betrayal of the promise of the "prospective-waiver" dictum in Mitsubishi Motors. n239 The court rejected the argument, reasoning that "the prospective-waiver doctrine is limited to statutory rights and remedies," whereas the seaman had sued "under the general maritime law." n240 In fact, the seaman had sued under both the general maritime law and the Jones Act!
3. Contracts Without Choice-of-Law Clauses
 
 "The problem with scorning a lawyer is that lawyers tend to sue." n241 So said the Court of Appeals for the D.C. Circuit in Bode & Grenier, LLP v. Knight, n242 a case involving an attorney-fee dispute between a D.C. law firm and its own Michigan client. The district court rendered a judgment ordering the client to pay the law firm $ 70,000 in overdue attorney fees - plus $ 269,585 in attorney fees for the firm's having to sue the client for the overdue fees. The client appealed the latter amount, arguing that Michigan law should govern the retainer contract and, under that law, a law firm is not entitled to attorney fees "incurred while representing itself." n243 The court held for the law firm, after finding that D.C. law governed the contract and did not preclude the recovery of the disputed fees.

 [*263]  The court described its choice-of-law approach as "a constructive blending of the governmental interest analysis and the most significant relationship test, the latter as expressed in the Restatement (Second)." n244 The court relied on section 196 of the Restatement, which calls for the application of the law of the state "where the contract requires that the services, or a major portion of the services, be rendered" n245 unless another state has a more significant relationship. In this case, the law firm rendered its services in D.C., and Michigan did not have a more significant relationship.
Cunningham v. Feinberg n246 involved another scorned lawyer, but the scorner was his own law firm, which he sued for unpaid wages. The plaintiff represented a Virginia law firm in Maryland under a contract apparently made in Virginia. As the court described it, this was a "relatively contentious dispute between a young lawyer associate and his former law firm employer over a small amount of allegedly unpaid wages, a medium amount of treble damages, and a large amount of attorney's fees." n247 The plaintiff was entitled to a private cause of action for the above quoted remedies under the Maryland Wage Payment and Collection Law (MWPCL), n248 but not under the corresponding Virginia statute. The law firm argued that, because this was a Virginia contract, Virginia law should govern under Maryland's lex loci contractus rule, while the plaintiff urged the court to abandon the lex loci rule. Maryland's highest court, the Court of Appeals, acknowledged its previously expressed willingness to reconsider its reliance on the lex loci contractus rule, which the court called a "doctrine." Nevertheless, the court concluded that this was "not the proper case" and expressed its satisfaction "with the level of simplicity, predictability, and uniformity provided by the doctrine." n249
Obviously, there is no need to abandon a rule if you can easily avoid it at any available opportunity. The Maryland court had done precisely that on several previous occasions by creative characterization n250 and by selectively using renvoi, n251 the public policy exception, n252 and even policy analysis. n253 Another way of deferring reconsideration of the lex loci rule is to conclude that it is inapplicable. 
 [*264]  This is what the court concluded in this case, although not without justification. The rule was "not implicated," the court concluded, because the plaintiff's action did "not involve the validity, enforceability, interpretation, or construction of the employment contract." n254 Rather, it was an action seeking a statutorily provided redress against (and punishment of) an employer who unlawfully withheld wages under an admittedly valid contract. In the court's words,

 although the [plaintiff's] cause of action assumes the existence of some sort of underlying contract, it does not sound per se in contract. A MWPCL claim does not require necessarily analysis of the parties' underlying contract, nor does an action under the MWPCL require that a breach of contract action be pursued contemporaneously. Instead, a MWPCL action may be an independent, stand-alone claim. n255

 Then, in what it called "a nifty bit of considered dicta," n256 the court stated that, even if the lex loci contractus rule applied in this case, the court would invoke the public policy exception in favor of Maryland because "the MWPCL represents strong Maryland public policy." n257
Harrington v. Energy West Inc. n258 involved an employment contract formed orally between a Montana corporation and its Ohio subsidiary, on the one hand, and an Ohio domiciliary, on the other. The employee sued the Montana corporation in Montana, arguing that he was fired without good cause as required by Montana's Wrongful Discharge from Employment Act (WDEA). n259 Ohio law would treat the plaintiff as an "at will" employee, and would not grant him redress under these circumstances.
The defendant argued that the parties implicitly chose Ohio law because the defendant paid payroll taxes and worker's compensation premiums under Ohio law. The Montana Supreme Court rejected the argument, reasoning that neither Montana precedents nor the Restatement (Second), which Montana follows, "lend support for inferring an effective choice of law simply through the conduct of the parties," as opposed to the provisions of the contract. n260 Nevertheless, the court held that Ohio law governed, after finding that the contract was formed in Ohio and the employee performed his services there.

 [*265] 
4. Insurance Contracts
 
 Visteon Corp. v. National Union Fire Insurance Co. of Pittsburgh, Pa. n261 is the most important decision of the year on the issue of insurance coverage for environmental contamination when a single policy covers multiple risks situated in different states. In an opinion written by Judge Posner, a stellar panel of the Seventh Circuit (Judges Wood, Posner, and Easterbrook) characterized as "eminently sensible" n262 the "uniform contract interpretation approach" that the forum state of Indiana has adopted for such cases. n263 This approach focuses on the insurance contract and aspires to apply the law of a single state, even when the contract covers multiple risks situated in different states. It usually leads to the application of the law of a state that either is the place of the making of the contract or has other significant connections with the contract and the parties, but not necessarily the location of the risk. The alternative approach, followed in many other states and known as the "site-specific approach," abandons the goal of applying a single law to the whole contract and focuses on the interests of the state or states where the insured risks are located. The applicable law is usually the law of that state or states (the site-states), unless another state has a more significant relationship with regard to the particular issue. n264
Visteon, a corporation headquartered in Michigan, bought from the defendant insurer a single insurance policy covering Visteon's manufacturing plants in several states and foreign countries. The risk materialized at one of Visteon's plants in Indiana, when large quantities of a toxic substance (TCE) leaked into the soil and groundwater and contaminated neighboring properties. Invoking a pollution exclusion clause in the insurance policy, the insurer denied coverage. Visteon sued the insurer in Indiana and argued for the application of Indiana law, which would not enforce the particular exclusion clause. The insurer argued for the application of Michigan law, which would enforce the exclusion clause. The Seventh Circuit held that Michigan law governed, resulting in denial of coverage.
After noting that Indiana's uniform contract interpretation approach would be binding on the Seventh Circuit even if it were not "eminently sensible," n265 Judge Posner wrote that, to apply Indiana law under this approach, as Visteon argued, would mean "Indiana law would govern all subsequent pollution damages caused by Visteon, 
 [*266]  wherever they occurred." n266 Judge Posner reasoned that it would be "immensely difficult" for the insurer "to calculate a single premium for risks made so diverse by the worldwide scope of Visteon's operations" and that the alternative of charging "multiple different premiums to the same insured for the same insurance" was equally difficult. n267 Judge Posner concluded:

 Since there are compelling reasons for [the insurer's] charging a uniform premium to an insured despite the great variety of risks that it is insuring, and similarly compelling reasons for a single jurisdiction's law to govern disputes over terms in [this] insurance contract, and the only choice of jurisdictions offered to the district court was between Indiana and Michigan, the court was right to choose Michigan. n268

 Judge Posner also noted that "the Indiana victims of the TCE leak were compensated by Visteon," and thus "it is unclear what benefit the state would have derived from reimbursement of Visteon's costs by [the insurer]." n269
The conclusion this author draws from this case is not that the uniform contract interpretation approach is "eminently sensible," but rather that, given that Klaxon n270 required the court to follow that approach, the result it reached was defensible. n271

 [*267] 
B. Torts
1. Medical Malpractice
 
 In the vast majority of tort conflicts involving medical malpractice, the courts apply the law of the state where the medical services were rendered, rather than the state in which the patient was domiciled. n272 And for good reason. On one hand, it would be "wholly unreasonable ... [to] require hospitals and physicians to be aware of and be bound by the laws of all states from which patients came to them for treatment." n273 On the other, "patients are inherently on notice that journeying to new jurisdictions may expose them to [unfavorable] rules," n274 and "it is hornbook law that 'by entering the state ... the visitor has exposed himself to the risks of the territory and should not expect to subject persons living there to a financial hazard that their law had not created.'" n275
One would expect that courts following the lex loci delicti rule would also reach the same result because, ordinarily, the locus delicti is in the state in which the medical services were rendered. Yet, in Montano v. Frezza, n276 a case decided under New Mexico's lex loci delicti rule, the court reached the opposite result, applying the law of the patient's home state. Following the "last event" rule n277 of the first Restatement, n278 the court concluded that the locus of the tort was in the patient's home state, because that is where the "injuries manifested themselves." n279 The patient was a New Mexico domiciliary who underwent a bariatric surgery at a Texas state hospital. n280 The court held that, under principles of comity, the Texas surgeon was entitled to immunity accorded by a Texas statute, "but only so far as that immunity [was] consistent with the New Mexico [state immunity statute]." n281 The New Mexico Supreme court has granted certiorari.

 [*268]  Ginsberg ex rel. Ginsberg v. Quest Diagnostics, Inc., n282 a New Jersey case decided under the Restatement (Second), involved medical services rendered by different defendants in two states, New York and New Jersey. The court applied the laws of New York for the services rendered in that state and the laws of New Jersey for the services rendered in New Jersey.
Ginsberg is factually and legally complex, but worth reading. Ari Ginsberg, a New York domiciliary at the time, requested a blood test from his New York doctor in order to determine whether he was a carrier of Tay-Sachs, a genetically inherited incurable disease. The doctor sent the blood sample to the defendant Quest, a New Jersey-based corporation that did business in New York, which in turn sent the sample to a New York hospital, Mt. Sinai. Erroneously concluding that Ari was not a carrier of the decease, the hospital transmitted the test results to Quest, which in turn transmitted them to Ari's doctor who conveyed them orally to Ari. Shortly thereafter, Ari married Tamar, then a New Jersey domiciliary. Tamar was also tested for Tay-Sachs in New Jersey and was found to be a carrier. She consulted with her New Jersey gynecologist and then received counseling from a geneticist at a New Jersey hospital (HUMC). In these consultations, Tamar informed the gynecologist and the geneticist that her husband was not a carrier of Tay-Sachs. The couple subsequently moved to New York, where Tamar gave birth to a child who later was diagnosed with Tay-Sachs. The couple moved back to New Jersey and, two months later, filed a lawsuit in New Jersey against Quest and Mt. Sinai (the New York defendants), as well as the New Jersey gynecologist and the HUMC hospital (the New Jersey defendants).
The plaintiffs asserted claims for "wrongful birth" and "wrongful life." The first type of action is brought by parents who claim that they were deprived of the option of making a meaningful decision as to whether to terminate a pregnancy when it is anticipated the child will be born with birth defects. The plaintiffs in Ginsburg claimed that, had they been correctly informed that both of them were carriers of Tay-Sachs, they would have conducted prenatal testing, which would have shown that the fetus was afflicted with Tay-Sachs, and they would have likely terminated the pregnancy. Both states in this case recognized this action, but unlike New York, which allowed pecuniary damages only, New Jersey also allowed recovery for emotional loss. An action for "wrongful life," meanwhile, is brought on behalf of a child born with congenital defects and seeks to recoup the medical costs caused by that condition. This action was available under New Jersey, but not under New York law.

 [*269]  Assuming that the only available option was to apply the law of one state to "the entire pot" of claims, n283 the trial court applied New Jersey law to all claims against all defendants. In ruling on an interlocutory appeal in a well-written fifty-page opinion, the Appellate Division adopted a "defendant-by-defendant approach" n284 instead. It affirmed the application of New Jersey law to the New Jersey defendants, but held that New York law should govern the claims against the New York defendants.
The court used more pages than necessary to explain why a defendant-by-defendant approach is permissible. Of course it is. The court reasoned that this approach is a corollary to the issue-by-issue analysis, n285 which is an integral feature of all modern choice-of-law approaches. But even the traditional system allows, and sometimes requires, the application of the laws of different states to different defendants. As the court noted, "a plaintiff's legal claims and theories against multiple defendants may be predicated upon different facts occurring in different states at different times," and it would "be patently arbitrary or unreasonable to ordain that all of the claims ... against all of the defendants must be adjudicated under a single state's laws." n286
The court identified New York as "the primary, if not exclusive, state that is the place of injury" n287 because New York was

 where the Ginsbergs resided at the time of Tamar's pregnancy, ... where they made their decision to proceed with the pregnancy[,] ... where Tamar likely would have undergone prenatal testing of the fetus for Tay-Sachs had the couple been correctly informed that Ari was also a carrier for Tay-Sachs, and where the couple likely would have chosen to terminate the pregnancy if they learned that the child she was carrying was afflicted with Tay-Sachs. n288

 The court rejected the plaintiffs' argument that the injury occurred in New Jersey because the child was conceived there. Correctly characterizing the place of conception as "fortuitous and irrelevant," n289 the court noted that, "for a wrongful birth claim, the focus must be on 
 [*270]  the decision to continue the pregnancy after the conception had occurred and the pregnancy became known to the couple." n290 Because at the time of Tamar's pregnancy, the couple resided in New York, the decision, or lack thereof, to terminate the pregnancy could have been made only in New York. Consequently, that is where the loss of reproductive choice occurred, thus making New York the place of the injury. n291
The court also rejected the plaintiffs' argument that the injury occurred in their current home state of New Jersey because they experienced their emotional distress there. Noting that "in all personal injury actions, the effects of an injury necessarily follow a plaintiff to his or her state of residence or domicile," the court concluded that it would be inappropriate to focus on "the place where the injuries are felt, rather than the place where they in fact occurred." n292
Under section 146 of the Restatement (Second), which is followed in New Jersey, the law of the state of injury (here New York) presumptively applies, unless another state has a more significant relationship under the principles of section 6. The court concluded that, with regard to the New Jersey defendants, New Jersey had a more significant relationship, thus rebutting the presumption in favor of New York law. The court was unsympathetic to the defendants' plea to apply New York's pro-defendant law. Both the gynecologist and the HUMC hospital were licensed in, and regulated by, New Jersey and rendered all of their services there, and, as the court noted, "professionals and their patients have a reasonable expectation that the laws of the state of licensure will govern the professional licensee's activities within the state where the services were provided." n293 In any event, the court concluded, "New Jersey [had] strong public policies in the regulation of health care professionals who are licensed in and who practice in [New Jersey]." n294
With regard to the New York defendants, the presumption of section 146 in favor of New York law was bolstered rather than rebutted because New York had "a strong interest in regulating its clinical laboratories" n295 
 [*271]  and hospitals, and these defendants had every reason to "expect that New York law would govern the provision of their services" in New York. n296 The claims against them "should not be evaluated by the laws of another state simply because there are multiple other defendants in the case from different states." n297
The court also discussed extensively the principles of section 6 of the Restatement (Second) and found that its conclusions were consistent with those principles. The court reasoned, inter alia, that: (1) "the values of interstate comity and commerce would not be significantly affected by the application of New Jersey law to the New Jersey health care defendants[, whereas] New York's policies would be potentially frustrated by the application of New Jersey law to [the New York defendants] for services that they each provided in New York"; n298 and (2) the "interests of the parties" were "consistent" with this bifurcation because it is reasonable for both the providers and the recipients of medical services "to expect that the law of the state where the services were provided would govern claims arising from those services." n299
As one would expect in a case such as this, the defendants filed cross-claims for indemnity and contribution against each other and at least one contractual third-party claim. Because this was an interlocutory appeal, the Appellate Division decided not to rule on those claims, some of which could later become moot, and instead referred them to the trial court. However, the Appellate Division recognized the potential choice-of-law problems that the resolution of those derivative cross-claims might encounter. For example, a conclusion that New York law would govern the New York parties' cross-claims against the New Jersey defendants, while New Jersey law would govern the cross-claims of the New Jersey defendants against the New York parties, would lead to an impasse. Could it mean that the New York defendants, who could not be liable to the plaintiffs for wrongful life under New York law, would be liable for indemnification to the New Jersey defendants under New Jersey law? Recognizing these difficulties, the Appellate Division decided to "not completely foreclose the trial court from re-examining the choice-of-law aspects of this case at the time of trial." n300

 [*272] 
2. Legal Malpractice
 
 Rogers v. Lee n301 involved an action for legal malpractice filed by a South Carolina domiciliary against a South Carolina attorney who represented the plaintiff in a North Carolina worker's compensation proceeding. The retainer agreement that authorized the attorney to represent the plaintiff in that proceeding contained a North Carolina choice-of-law clause. North Carolina, but not South Carolina, had a statute of repose barring the action. The plaintiff argued that his injury occurred in South Carolina because that is where he suffered financial loss caused by the attorney's malpractice. Following the lex loci delicti rule, the South Carolina court rejected the argument, noting that under South Carolina precedent, the locus delicti is in "the state in which the injury occurred, not where the results of the injury were felt or where the damages manifested themselves." n302 The court also rejected the argument that the application of North Carolina's statute of repose violated South Carolina's public policy.
A concurring opinion noted that, although North Carolina law governed the claim arising from the plaintiff's representation in the North Carolina proceeding, the agreement authorizing that representation (and its choice-of-law clause) "[did] not govern the entire relationship between the lawyer and the client." n303 That relationship was formed in the attorney's office in South Carolina, between two South Carolina domiciliaries, and imposed a fiduciary duty on the attorney to explore other available options, such as filing a workers' compensation claim in South Carolina or a products liability claim. n304
In Bobbitt v. Milberg LLP, n305 the legal malpractice occurred in connection with litigation in Arizona. The defendant law firms initially succeeded in obtaining class certification on behalf of plaintiffs domiciled in all fifty states against a corporate defendant. However, things went downhill from there. The law firms missed certain mandatory court deadlines and, as result, the Arizona court vacated the class certification and ruled for the defendant on the merits. The class members then filed a class action for legal malpractice against the law firms. The trial court found that the diverse laws of the plaintiffs' 
 [*273]  home states would govern their respective claims and denied class certification. n306
The Ninth Circuit reversed, holding that Arizona law would govern the claims of all class plaintiffs. The court based its holding on section 145 of the Restatement (Second), n307 which Arizona follows. After noting that the wrongful conduct had occurred in Arizona, the court rejected the trial court's assumption that the injury had occurred in the plaintiffs' home states. Instead, the Ninth Circuit found that Arizona was also the place of injury because the plaintiffs "lost the potential benefits of class certification in the Arizona litigation." n308 The court explained that the inquiry should focus "not on the place where the victim feels the consequences of the injury, but on the location of injury itself," n309 and that in this case the plaintiffs' interest was "the potential recovery in Arizona litigation [and t]hat interest was held in Arizona." n310 The court discounted the parties' domiciles because the plaintiffs were domiciled in all fifty states and the law firms in seven states, and there was "no single state where a number of parties are 'grouped.'" n311 However, the court credited Arizona as being the place of "some relationship" n312 between the plaintiffs and the law firms, while acknowledging that in class action cases there is very little relationship between lawyers and unnamed class plaintiffs. With three factors "weighing strongly" n313 in favor of Arizona, the court concluded that Arizona law should govern, especially because "when the place of injury and the conduct causing the injury coincide, 'that state will usually be the state of the applicable law[,] ... particularly ... with respect to issues involving standards of conduct.'" n314 The court did not discuss any of the factors of section 6 of the Restatement (Second).
3. Traffic Accidents
 
 Rexroad v. Greenwood Motor Lines, Inc. n315 was a wrongful death action arising from an Indiana traffic accident caused by an Ohio truck driver and resulting in the death of an Illinois driver. The victim's 
 [*274]  survivors sued the truck driver's employer in Indiana, seeking damages under Illinois law. Unlike Indiana law, Illinois law allowed recovery by the decedent's adult children. Neither party pleaded Ohio law. During the pretrial conference, the defendant stipulated that, if the court were to apply Indiana law, he would admit to being solely at fault for the accident. The trial court obliged, the plaintiff filed an interlocutory appeal, and the Court of Appeals affirmed the application of Indiana law to damages.
The appellate court noted that, under the decision of the Indiana Supreme Court in Simon v. U.S., n316 "the presumption of applying the lex loci delicti rule is strong and should only be overcome in rare cases, and that automobile accidents were generally not intended to fall under this exception." n317 The court reasoned that "the rationale behind lex loci delicti is that the laws of the state where the tort occurred usually govern the conduct of the parties." n318 However, as the plaintiffs pointed out, the only disputed issue in this case was the plaintiffs' eligibility for wrongful death damages, and this was not an issue of conduct. The court rejected the plaintiffs' argument because it would "require this court to engage in depecage, which is not a practice that has been accepted in Indiana." n319
Of course, there is no possibility of depecage when the case involves only one disputed choice-of-law issue. Thus, this court (like the Indiana Supreme Court in Simon) rejected issue-by-issue analysis because of the hypothetical possibility that in some other cases such an analysis might lead to depecage. n320 Indeed, the court worried about hypothetical scenarios, reasoning that the plaintiffs' argument "would cause peculiar results" because "at any point during litigation, if the defendant admits fault, then the applicable state law could change [and s]uch a precedent would significantly discourage stipulations of fault." n321
One cannot quarrel too much with the application of Indiana law in this case (especially because the plaintiffs did not plead the law of the defendant's home state), or with the court's use of hypotheticals as a means of explaining its logic. But this logic can lead to irrational results in other cases, such as a Babcock-type pattern in which (1) there is no dispute about any conduct-regulating issue, and (2) the 
 [*275]  parties are domiciled in the same non-accident state or in states that have the same loss-distribution law. n322
Denton v. Universal Am-Can, Ltd. n323 also involved an Indiana traffic accident and Illinois victims. An Indiana driver, driving the wrong way, set off a chain of collisions of several cars driven by non-Indiana drivers, including the plaintiffs. The plaintiffs settled with the estate of the Indiana driver and then sued the other drivers in Illinois, whose law favored the plaintiffs. The defendants, none of whom were domiciled in Indiana or Illinois, argued for the application of Indiana law, which favored them.
Following the Restatement (Second), n324 the Illinois court held that Indiana law governed all issues of liability and apportionment of damages because the plaintiffs did not rebut the presumption in favor of the state of injury. The court noted that, under Illinois precedent, "in the absence of unusual circumstances, the highest scorer on the 'most significant relationship' test is the place where the tort occurred." n325 In this case, no other state had a more significant relationship than Indiana did, because Indiana was also the state of the critical conduct and the parties did not have a preexisting relationship and did not share a common domicile. The court concluded that, "while Illinois has an interest in compensating its residents/domiciliaries for injuries, this interest does not outweigh that of Indiana to maintain safe highways or to protect individuals and businesses from being apportioned a greater cost in negligence actions." n326
In C'Hair v. District Court of Ninth Judicial District, n327 the traffic accident occurred on a state highway within an Indian reservation in Wyoming. The defendant was a member of the Indian tribe, while the plaintiff was a non-Indian Wyoming domiciliary. The Wyoming Supreme Court held that neither the lex loci delicti rule, which that 
 [*276]  court follows, nor Wyoming's borrowing statute required the application of the tribal statute of limitations, which barred the action against the defendant. The borrowing statute was inapplicable because an Indian reservation "is neither a state nor a country." n328 The lex loci delicti rule was also inapplicable because it applies to substantive conflicts and not to statutes of limitations, which, in the court's view, are procedural.
4. Exculpatory Clauses
 
 McDonald v. Whitewater Challengers, Inc. n329 involved the enforceability of an exculpatory clause releasing Whitewater, a Pennsylvania rafting trip operator, from liability for injuries suffered by participants in its whitewater rafting excursions. The plaintiff, a New York teacher who was chaperoning a group of New York students on a rafting trip in Pennsylvania, was injured during such an excursion. The exculpatory clause was enforceable in Pennsylvania, but the plaintiff had signed it in New York, and a New York statute declared such clauses void as contrary to New York's public policy.
The plaintiff argued, inter alia, that (1) because she signed the clause in New York, the contract was formed there and should be governed by New York law, and (2) if the defendant intended for Pennsylvania law to apply, then it should have included a Pennsylvania choice-of-law clause. The Pennsylvania court rejected the argument, noting that the New York statute did not apply extraterritorially and that, in any event, the clause "was executed for the purpose of protecting Whitewater, a Pennsylvania business that had the right to expect ... that the laws of Pennsylvania would apply in interpreting the [clause]." n330 After an extensive discussion of Pennsylvania choice-of-law precedents, the court held the exculpatory clause enforceable under Pennsylvania law. The court acknowledged New York's interest in protecting the New York plaintiff but concluded that Pennsylvania had a "greater interest" in applying its law. n331 Paraphrasing from the well-known and comparable case Cipolla v. Shaposka, n332 the court reasoned:

 It seems only fair to permit Whitewater to rely on Pennsylvania law when it acted within Pennsylvania... . Whitewater should not be placed in jeopardy of liability exceeding that created by Pennsylvania law just because [the 
 [*277]  plaintiff] is a visitor from New York, a state offering higher protection. n333

5. Deceptive Trade Practices and Consumer Protection
 
 In Thornell v. Seattle Service Bureau, Inc., n334 the Supreme Court of Washington, sitting en banc, held that: (1) an out-of-state plaintiff may bring a claim against an in-state corporate defendant for sending allegedly deceptive debt collection letters in violation of Washington's Consumer Protection Act (CPA); n335 and (2) if the in-state defendant acted as agent for an out-of-state principal, the plaintiff could also sue the principal under the same Act. The court based its holding primarily on statutory interpretation (particularly the wording of the Act, which allowed "any person" to sue for violations of the Act), but also offered the following reasoning:

 Unscrupulous entities might escape liability under the CPA if out-of-state citizens could not bring CPA actions against Washington entities that direct unfair and deceptive practices only to out-of-state residents. Washington businesses engaging in unfair and deceptive practices that indirectly affect others do not advance the purpose of fair and honest competition. Honest businesses could be placed at a competitive disadvantage competing against a business that generates revenue from unlawful acts that violate the statute. n336

 With regard to the out-of-state defendant, the court reasoned that "[a] principal cannot send agents into a state to commit CPA violations in order to avoid liability by virtue of its out-of-state residence." n337
In Rutledge v. Hewlett-Packard Company, n338 a California court denied class certification to out-of-state consumers who sued a California manufacturer/seller for violating California's Consumer Legal Remedies Act (CLRA) n339 on the ground that the consumers did not establish that California had a greater interest than their home states in applying its law. The Court of Appeals reversed. The court relied on California precedents that had characterized California's consumer protection laws as "among the strongest in the country" and had held that "California's more favorable laws may properly apply 
 [*278]  to benefit nonresident plaintiffs when their home states have no identifiable interest in denying such persons full recovery." n340 The court held that, under these circumstances, the trial court should have placed on the defendant the burden of showing that the consumers' home states had a greater interest in applying their laws than California.
6. Alienation of Affections and Jurisdiction
 
 Mississippi is one of very few states that still allow a cause of action for alienation of a spouse's affections. n341 This action is brought by a spouse against a third party who caused the breakup of the marriage, usually but not necessarily by having an affair with the other spouse. In Nordness v. Faucheux, n342 the spouses lived in a suburb of Memphis on the Mississippi side of the border with Tennessee, and the husband worked as a pilot with Federal Express in Memphis. The husband, named Philip, began an extramarital affair with a woman named Francesca, who was then living in Louisiana. For the next five years, the two met many times in Louisiana and four other states, but never in Mississippi. Never mentioning Mississippi, Philip misled Francesca into believing that he lived in Memphis, Tennessee. He used a cell phone with a Memphis area code, and always sent her packages with a Memphis return address. When Phillip's wife learned of the affair, she divorced Phillip and then sued Francesca in Mississippi for alienation of affections.
Mississippi's long-arm statute authorizes personal jurisdiction over a non-resident defendant who "commits a tort in whole or in part in [Mississippi]." n343 The Mississippi Supreme Court had no trouble concluding that the statute reached the defendant "because Francesca's actions allegedly broke up [the plaintiff's] Mississippi marriage." n344 But the more difficult question was whether assertion of jurisdiction in this case was constitutionally permissible under the Due Process Clause of the Fourteenth Amendment. n345 Two of the court's nine justices thought that it was, because "the contacts between [Francesca] and Phillip [were] purposeful," Phillip was "a resident of Mississippi," and "the complaint alleged that a tort was committed, in whole or in part, in Mississippi." n346

 [*279]  The majority disagreed, holding that assertion of jurisdiction in this case would be contrary to the U.S. Supreme Court's jurisprudence interpreting the Due Process Clause. The majority pointed specifically to Walden v. Fiore, n347 the Court's latest and most relevant decision on specific jurisdiction, which spelled out two requirements for subjecting a non-resident defendant to jurisdiction under the "minimum contacts" test of International Shoe. n348 The first is that the relationship between the defendant and the forum state "must arise out of contacts that the 'defendant himself' creates with the forum State." n349 The second is that these contacts must be "with the forum State itself, not ... with persons who reside there." n350
In Nordness, an assertion of jurisdiction over Francesca would run afoul of at least the second requirement, and the Mississippi court so held. A defendant's ability to foresee that her acts would cause injury in the forum state, "standing alone, is insufficient to establish constitutionally required minimum contacts," n351 the court said. The defendant's contacts must be with the forum state itself, and must be purposeful rather than unknowing. n352 In this case, the court found:

 It is uncontroverted that Francesca never knew of Phillip's home in Mississippi. There is no evidence in the record to suggest that Francesca knew or should have realized her calls and texts to Phillip's Tennessee telephone number would be received in Mississippi. And while Francesca certainly should have known her affair with a married man might break up a marriage somewhere, there is nothing in the record to suggest she knew or should have known the marriage would break up in Mississippi. n353

 Under these circumstances, the court concluded, it would be "irrefutably illogical to suppose that a person who has an affair in another State with a Mississippi resident - but who is unaware of the person's Mississippi connections - reasonably could expect her actions could lead to her being 'haled into court' in Mississippi." n354

 [*280] 
7. Foreign Torts and Forum Non Conveniens
 
 It is common knowledge that when a foreign plaintiff sues in the United States in a case arising from a tort committed in whole or in part in a foreign country, the chances of dismissal on forum non conveniens (FNC) grounds are far greater than in comparable actions filed by American plaintiffs. n355 Two cases involving Venezuelan plaintiffs are among the few exceptions. n356
In the first case, Doe v. International Psychoanalytical Association, n357 a Venezuelan plaintiff sued an English corporation in Illinois for invasion of privacy resulting from the publication of the plaintiff's sensitive personal information obtained during psychoanalysis performed in Venezuela. The defendant first presented this information at an academic conference in Illinois and then posted it on its English website without using the plaintiff's name. After an "abbreviated choice-of-law analysis" based on section 150(2) of the Restatement (Second), n358 the Illinois court concluded that Venezuelan law would be applicable to the merits of this case because, in a "multi-country publication of unauthorized sensitive material, the place of the greatest potential injury to the reputation of the plaintiff will be the place where plaintiff lives and works, which is Venezuela." n359 The court acknowledged that, ordinarily, the fact that foreign law would govern the case is a factor that favors dismissal on FNC grounds. However, the court concluded that in this case dismissal was not warranted, reasoning as follows:

 It is ... a significant factor that the publication of plaintiff's unauthorized sensitive clinical material first originated in Illinois, which is a hub for international conventions and presentations. As such, Illinois has a strong interest in maintaining some order in the manner in which those in international conventions and presentations treat innocent people. Illinois also has a strong interest in making sure 
 [*281]  that, especially in this century and in the future, concepts of fairness and justice prevail in our communities and in our country. We know what a litigant can expect in our courts, but know not what happens in the courts of other countries. Although the administration of Venezuelan law in this case will not be easy for the trial court, our experience dictates that our court[] will do its best to provide both sides a fair and just trial. n360

 In the second case, Publicidad Vepaco, C.A. v. Mezerhane, n361 the plaintiffs were two Venezuelan banks who sued the banks' former owner and chief executive officer, alleging that they stole U.S. Treasury Bills worth $ 72 million belonging to the banks through a fraudulent scheme that temporarily passed the Bills through entities located in Curacao. The defendants later fled Venezuela and settled in Florida, the forum state. The trial court dismissed the action on FNC grounds in favor of Curacao, but the appellate court reversed. The appellate court found that the private interest factors weighed heavily in favor of maintaining the action in Florida. The court did not discuss the public interest factors because, under Florida's FNC law, a court need not consider the public interest factors if "the private interest factors weigh more heavily in favor of maintaining the Plaintiffs' action in Florida." n362 Thus, the court did not discuss the choice-of-law issue, which is one of the public interest factors and which would have led to the conclusion that foreign law would govern the case. A concurring judge lamented the fact that, "despite the fact that every incident of wrongful conduct in this case occurred away from our shores, the natural workings of our forum non conveniens law as it now exists require[] us to order the trial court to devote its limited resources ... to resolve this dispute." n363
Among the far more numerous cases that dismissed an action on FNC grounds, perhaps the most surprising is Brenham Oil & Gas, Inc. v. TGS-NOPEC Geophysical Co., n364 in which a Texas court dismissed an action filed by a Texas corporation against another Texas corporation, alleging tortious interference with efforts to obtain an oil production agreement with the Republic of Togo. The court afforded "less deference" to the plaintiff's choice of forum because, under Texas precedent, less deference is due when the plaintiff is "a corporation that has chosen to conduct extensive business in foreign countries and then is injured or defrauded in the foreign venue as a 
 [*282]  result of those business transactions." n365 Regarding the choice-of-law issue, the court acknowledged that "the alleged torts could be said to have 'emanated' from [the defendant's] Houston-based ... team," but concluded that the dispute "is fairly characterized as arising from a prospective Togolese 'business transaction,'" n366 and that the plaintiff did not adequately develop its argument that Texas law would govern.
Among other cases affirming FNC dismissals, the most noteworthy are:
. Fischer v. Magyar Allamvasutak Zrt., n367 an Illinois case that dismissed actions brought by descendants of Hungarian Jews against the Hungarian national railway, the Hungarian national bank, and several private banks, alleging that the defendants participated in expropriating property from Hungarian Jews who were victims of the Holocaust;
. Ranza v. Nike, Inc., n368 an Oregon case that dismissed an action brought by an American citizen against an Oregon-based corporation alleging sex and age discrimination in the workplace in violation of federal law based on acts committed by the defendant's Dutch subsidiary in the Netherlands;
. Provincial Government of Marinduque v. Placer Dome, Inc., n369 a Nevada case that dismissed an action brought by a Philippine provincial government against a Canadian mining company for environmental degradation in the Philippines;
. Lumenta v. Bell Helicopter Textron, Inc., n370 a Texas case that dismissed wrongful death actions brought by Indonesian plaintiffs against the Texas manufacturer of a helicopter that crashed in Indonesia; and
. Chirag v. MT Marida Marguerite Schiffahrts, n371 a Jones Act case brought against a German shipowner by Indian crewmembers for injuries suffered during the ship's hijacking by Somali pirates. n372

 [*283] 
C. Products Liability
1. Breast Implants, Pharmaceuticals, and Federal Transfers
 
 Dow Corning Corp. (Sutherland) v. DCC Litigation Facility, Inc. n373 was one of "tens of thousands of silicone-related cases brought against Dow Corning," n374 a Michigan-headquartered corporation that manufactured silicone-based breast implants that caused serious ailments to the women who received them. The plaintiff sued in federal court in her home state of North Carolina, but the court transferred the case to federal court in Michigan, where Dow Corning had filed for bankruptcy. The transfer was ordered pursuant to 28 U.S.C. § 157(b)(5), which allows a federal court to transfer personal injury and wrongful death actions filed in non-bankruptcy court to another district court in which the bankruptcy case is pending. n375
A novel question in this case was whether, for choice-of-law purposes, a transfer under § 157(b)(5) should be treated in the same way as a transfer under 28 U.S.C. § 1404(a), n376 which, under Van Dusen n377 and Ferens, n378 does not entail a change in the applicable law. The Sixth Circuit answered this question in the affirmative, finding that "the principles of practicality and fairness that animate the rule of Van Dusen and Ferens" and "all the rationales for maintaining identity between the state of filing and the federal transfer" were equally applicable to this transfer. n379 The court continued:

 Section 157(b)(5) - like sections 1404(a) and 1407 - is a venue-transferring provision, and it should not be used to deprive [the plaintiff] of her choice of forum and any state law advantages that would exist absent the transfer. Further, because a debtor can choose where to file for bankruptcy under 28 U.S.C. § 1408, applying the law of the state where the bankruptcy court is located would create an opportunity for forum shopping - creating the danger of using § 157(b)(5) as a forum-shopping instrument. And, finally, it is clear that a decision to transfer venue under § 157(b)(5) 
 [*284]  should, like a venue transfer under § 1404(a), turn on considerations of convenience and the interest of justice rather than on an evaluation of the possible prejudice resulting from a change of law... . If a transfer under § 157(b)(5) would change the substantive law to apply to the transferred case, courts would be justifiably reluctant to transfer cases, thereby frustrating the section's case-centralizing purpose. n380

 The court's answer had direct practical implications for the viability of the plaintiff's action. The action was untimely under Michigan's statute of limitations, but could be timely under North Carolina's statute of limitations, depending on when the plaintiff had been diagnosed with the disease caused by the implants. Because North Carolina courts apply the forum's statute of limitations, a federal court in that state would have applied the North Carolina statute. Under the Sixth Circuit's decision, the federal court in Michigan should have done the same: "A venue transfer is not alchemy. North Carolina's choice of law rules govern[] [the plaintiff's] state law claim because for all intents and purposes her case never left North Carolina." n381
Dow Corning Corp. (Gatza) v. DCC Litigation Facility, Inc., n382 another breast-implant case filed against Dow Corning, involved a Wisconsin domiciliary who filed her claim directly in the Michigan bankruptcy proceeding. The bankruptcy court applied Michigan's statute of limitations, barring the action. The Sixth Circuit reversed, holding that the court should have applied the Wisconsin statute of limitations, including its discovery rule, under which the action could be timely. Because this was not a transfer case, Sutherland was not controlling and the Sixth Circuit had to base its decision on other grounds. It based it on "both Michigan's choice-of-law rules and 'general equitable choice-of-law policies'" n383 that had been followed by federal courts in bankruptcy cases.
With regard to Michigan's choice-of-law rules, the court noted that, "although Michigan courts will presumptively apply Michigan law in tort actions, the presumption is overcome when, as here, another 'state has a significant interest and Michigan has only a minimal interest in the matter.'" n384 The court based this conclusion 
 [*285]  on one Michigan case n385 and one federal case from Michigan, n386 but both cases are distinguishable. In both of those cases, the foreign law favored the Michigan defendant. To reiterate the observation of the 2013 Survey, "as readers of these annual surveys know, Michigan courts are notorious in applying Michigan law when it favors local litigants and finding a non-'rational reason' to apply foreign law when it disfavors foreign litigants." n387 The court also stated without explanation that "application of federal choice-of-law rules, which in this case are supplied by the Restatement (Second) of Conflicts of Law, leads to the same result." n388
In Williams v. Clark Sand Co., n389 the defendant was a Florida corporation that also manufactured breast implants. The corporation had been dissolved but, like many other states, Florida adopted a corporate survival statute that allowed claimants to sue the corporation up to four years after dissolution. Mississippi, the forum state and plaintiff's domicile, had a similar but shorter survival statute (three years). The action was untimely under both statutes, but the plaintiff argued: (1) that the Florida statute was a statute of limitations and thus was inapplicable in Mississippi, and (2) that, under the center-of-gravity approach followed in Mississippi, Mississippi's statute of limitation should govern. Under the latter statute and its discovery rule, the action would be timely.
The Mississippi Supreme Court rejected the plaintiff's arguments. Relying on cases from many states including Florida, the court concluded that the Florida corporate survival statute was not a statute of limitations but rather a statute that, for equitable reasons, temporarily prolonged a corporation's life. Because Mississippi also had a similar statute, there was "no conflict requiring application of the center-of-gravity test." n390 In any event, the court concluded, Florida law should govern because, "whether a corporation is amenable to suit is controlled by the state of incorporation, regardless of the statute of limitations and discovery rule of the forum state." n391 The court also opined that the Full Faith and Credit Clause required Mississippi to apply the Florida survival statute. n392

 [*286]  Wahl v. General Elec. Co., n393 a products liability action against a drug manufacturer, also involved a transfer between federal courts in different states (Ohio and Tennessee), as well as the question of which state's choice-of-law rules should govern. However, this transfer was atypical. It was a "direct-filed, later-transferred" Multidistrict Litigation (MDL) case, that is, a case filed directly in the court designated by the MDL Panel for consolidated pretrial litigation. Ordinarily, plaintiffs file their claims in their home states, the cases are transferred for pretrial purposes to the designated court, and then, if need be, they are transferred back to the plaintiffs' home states. In this case, the Panel issued a "Direct Filing Order" allowing later-filing plaintiffs to file their claims directly in the designated federal court in Ohio. Pursuant to this order, the plaintiff filed her action in that court, even though she would otherwise have filed her action in Tennessee, which was her home state and the state where she used the drug and suffered the injury. After pretrial, and upon the joint request of both the plaintiff and the defendant, the MDL judge in Ohio transferred the case to federal court in Tennessee.
The first question in Wahl was one for which there is no Supreme Court or appellate court precedent: whether the transfer from Ohio to Tennessee was analogous to a transfer ordered under 28 U.S.C. § 1404(a) "for the convenience of parties and witnesses, in the interest of justice," n394 or instead was analogous to one ordered under § 1406(a) for suits filed in the wrong venue. n395 As noted earlier, the Van Dusen-Ferens rule applies in the case of the first transfer and requires the transferee court to apply the choice-of-law rules of the transferor court. In a § 1406(a) transfer, however, the transferee court applies its own choice-of-law rules.
The Sixth Circuit held that this transfer was analogous to a § 1406(a) transfer n396 and thus it should be decided under Tennessee's choice-of-law rules. In the court's view, this meant that Tennessee's statute of repose n397 applied, barring the action. That statute was atrocious. It required all products liability suits against drug manufacturers to be filed within one year of the expiration date appearing 
 [*287]  on the drug's packaging. In this case, the plaintiff used a drug in 2006 that had an expiration date of 2008, but she was not diagnosed with an incurable disease attributed to the drug until 2010, by which time her action had expired.
The court also held in the alternative that, even under Ohio's choice-of-law rules, the Tennessee statute of repose would still apply because Ohio follows section 146 of the Restatement (Second), n398 under which the law of the state of injury governs unless another state has a more significant relationship under the principles of section 6 and the contacts of section 145. After enumerating Tennessee's contacts and downplaying the contacts of other states, the court concluded that no other state had a more significant relationship than Tennessee. The court mentioned that the manufacturer's drug division was headquartered in New Jersey, the law of which did not bar the action, and barely mentioned the place of manufacture (Ireland) but not its law. In terms of contact counting, one cannot quarrel too much with this conclusion. But what is beyond questionable is the court's statement that Tennessee had "a far greater interest" than any other state in prematurely extinguishing the action of a Tennessee plaintiff. n399
The court also rejected the plaintiff's argument that the application of the Tennessee statute of repose would violate Ohio's strong public policy embodied in the Right to Remedy Clause of the Ohio Constitution n400 because the statute extinguished the plaintiff's rights before she could discover them. The court based its conclusion on an obviously overstated comment under the public policy section of the Restatement (Second) which states that the exception "does not justify striking down a defense good under the otherwise applicable law on the ground that this defense is contrary to the strong public policy of the forum." n401
In McCarrell v. Hoffmann-La Roche, Inc., n402 a domiciliary of Alabama who suffered injury in that state by a drug manufactured in New Jersey sued the manufacturer in New Jersey. Both states had a two-year statute of limitations, which would bar the action, but New Jersey had a discovery rule under which the action would be timely. Initially, the plaintiff prevailed because the trial court applied New Jersey's discovery rule, but the appellate court ordered a retrial on other grounds.

 [*288]  In the meantime, the New Jersey choice-of-law landscape changed:
(1) In P.V. v. Camp Jaycee, n403 an unrelated case decided in 2008, the New Jersey Supreme Court switched its choice-of-law approach from interest analysis to the Restatement (Second).
(2) In Cornett v. Johnson & Johnson, n404 another unrelated products liability case decided in 2010, New Jersey's intermediate court applied section 146 of the Restatement (rather than section 142) in resolving a statute of limitations conflict. Section 146 applies to tort conflicts and is based on a presumptive lex loci delicti rule, whereas section 142, the specific section for statute of limitations conflicts, is based on a presumptive lex fori rule.
(3) In 2012, the New Jersey Supreme Court affirmed Cornett on other grounds. n405
Encouraged by these developments, the McCarrell defendants asked for reconsideration of the earlier ruling regarding the timeliness of the plaintiff's action under New Jersey law. After explaining why the law of the case doctrine did not foreclose reconsideration, the New Jersey court held that the Alabama statute of limitations applied, barring the action. The court based its holding on the presumption of section 146 in favor of the state of injury. The plaintiff was unable to rebut the presumption because not only "was [he] prescribed the allegedly defective product in Alabama," but he also "purchased it there, and ingested it there." n406 The court also opined that its holding was "consistent with" the choice of law outcome in P.V. v. Camp Jaycee. n407 The court noted a few dissimilarities, but missed the most important one - in P.V., the state of injury had a law that favored the victim.
The court recognized that a different outcome might follow under section 142 of the Restatement (Second), because that section "notably has a markedly different 'default rule' (i.e., the law of the forum) as compared with the default rule in Section 146 (the law of the place of injury)." n408 However, the court refused to apply section 142, inter alia, because, more than forty years earlier, the New Jersey Supreme Court had rejected an earlier version of section 142.

 [*289] 
2. Other Products
 
 In Bell Helicopter Textron, Inc. v. Arteaga, n409 the product in question was a helicopter designed, tested, and manufactured in Texas by Bell, a Delaware corporation headquartered in Texas. Bell sold the helicopter to a Mexican company, which used it in Mexico for twenty-nine years before it crashed there, killing everyone on board, including the plaintiffs' relatives. The plaintiffs hired a Texas lawyer who sued Bell in Delaware, admitting that he chose Delaware over Texas because Delaware was a "friendlier" forum. n410 Initially, Delaware proved to be a good choice. The lawyer succeeded in defeating Bell's motion for FNC dismissal and obtained a ruling from the trial court that Texas law governed all issues of liability and damages. That victory was short-lived, however, because the Delaware Supreme Court reversed, holding that Mexican law should govern.
The court began its analysis by declaring that Delaware had "no public policy interest in this case, except to avoid contributing to forum-shopping and enmeshing itself in unrelated litigation." n411 The court found that Mexican law should govern because the plaintiffs did not rebut the presumption established by sections 146 and 175 of the Restatement (Second) n412 in favor of the place of injury. In examining the contacts of section 145, the court discounted the place of conduct (Texas), reasoning that

 focusing on the site of manufacturing ... encourages jurisdictions to change their laws to restrict remedies to victims so as to attract manufacturers ... [in order to] benefit from the jobs and tax revenues that come with hosting manufacturing [while] helping the manufacturers to externalize the costs of injuries caused by their products to victims around the globe. n413

 The court did not explain why this concern applied in this case, given that Texas's law was far more generous to the victims than Mexican law. Regarding the parties' domiciles, the court noted that the plaintiffs were "all Mexican citizens" and they "live with the consequences of the decedents' deaths in Mexico." n414 On the other hand, Bell's domicile in Texas was "less pertinent" because Bell "does business 
 [*290]  around the world, and the safety of its products affects people in numerous nations." n415
The court also found that all the principles of section 6 of the Restatement favored the application of Mexican law. Regarding "the needs of the interstate and international systems," the court opined that the application of Texas law could

 disserve principles of international comity by impugning Mexico's judicial system as inadequate to compensate its own citizens. The Mexican people, acting through their elected representatives, are entitled to determine for themselves the appropriate balance between the remedies available to victims and limiting liability to encourage companies to operate in Mexico. Providing incentives for Mexican citizens to evade the limits on remedies and damages imposed by their own legal system when the defendant fortuitously happens to be a U.S.-based company threatens to disturb international relations and to impede the willingness of companies to do business in Mexico. n416

 In examining the interests of the involved states, the Delaware Supreme Court rejected the trial court's conclusion that Mexico had no interest in applying its pro-defendant law to protect a foreign defendant like Bell, although the Supreme Court itself opined that Texas had no interest in applying its pro-plaintiff law for the benefit of foreign victims of Bell's conduct. n417 Moreover, the court thought that it identified an interest on the part of Mexico in applying its law: unlike Texas law, Mexican law allowed non-married partners, or concubinas, to recover wrongful death benefits and some of the plaintiffs were concubinas. n418 It did not matter that all plaintiffs strenuously argued for the application of Texas law.
D. Methodology
 
 Table 2, below, depicts the judicial following of the various choice-of-law approaches in the fifty states, the District of Columbia, and the Commonwealth of Puerto Rico. As the readers of this Survey know, the table has seen little change in the last several years. Specifically, the last states to abandon the traditional system were Utah in contract conflicts in 1996 n419 and Montana in tort conflicts in 2000. n420 Since then, there have been only two other changes, both of them in tort conflicts: in 2006, Nevada switched from the lex fori ap
 [*291]  
 [*292]  proach to the Restatement (Second), n421 and, in 2008, New Jersey switched from interest analysis to the Restatement (Second). n422 No other change has occurred since then and ordinarily there would be no reason to reproduce this table every year. Nevertheless, readers have been asking for it. So here it is. It should read with all the caveats expressed in the previous surveys.
[pp tpn71]
Table 2. Alphabetical List of States and Choice-of-Law Methodologies Followed.
 
States	Traditional	Significant Contacts	Restatement (Second)	Interest Analysis	Lex Fori	Better Law	Combined Modern	
Alabama	T+C	 	 	 	 	 	 	
Alaska			T+C	 	 	 	 	
Arizona			T+C	 	 	 	 	
Arkansas		C				T	 	
California				T			C	
Colorado			T+C	 	 	 	 	
Connecticut			T+C?	 	 	 	 	
Delaware			T+C	 	 	 	 	
Dist. of Columbia				T			C	
Florida	C		T	 	 	 	 	
Georgia	T+C	 	 	 	 	 	 	
Hawaii							T+C	
Idaho			T+C	 	 	 	 	
Illinois			T+C	 	 	 	 	
Indiana		T+C	 	 	 	 	 	
Iowa			T+C	 	 	 	 	
Kansas	T+C	 	 	 	 	 	 	
Kentucky			C		T	 	 	
Louisiana							T+C	
Maine			T+C	 	 	 	 	
Maryland	T+C	 	 	 	 	 	 	
Massachusetts							T+C	
Michigan			C		T	 	 	
Minnesota						T+C	 	
Mississippi			T+C	 	 	 	 	
Missouri			T+C	 	 	 	 	
Montana			T+C	 	 	 	 	
Nebraska			T+C	 	 	 	 	
Nevada		C	T	 	 	 	 	
New Hampshire			C			T	 	
New Jersey			T				C	
New Mexico	T+C	 	 	 	 	 	 	
New York							T+C	
North Carolina	T	C	 	 	 	 	 	
North Dakota		T					C	
Ohio			T+C	 	 	 	 	
Oklahoma	C		T	 	 	 	 	
Oregon							T+C	
Pennsylvania							T+C	
Puerto Rico		T+C	 	 	 	 	 	
Rhode Island	C					T	 	
South Carolina	T+C	 	 	 	 	 	 	
South Dakota			T+C	 	 	 	 	
Tennessee	C		T	 	 	 	 	
Texas			T+C	 	 	 	 	
Utah			T+C	 	 	 	 	
Vermont			T+C	 	 	 	 	
Virginia	T+C	 	 	 	 	 	 	
Washington			T+C	 	 	 	 	
West Virginia	T		C	 	 	 	 	
Wisconsin						T+C	 	
Wyoming	T+C	 	 	 	 	 	 	
TOTAL 52	Torts 10 Contr. 12	Torts 3 Contr. 5	Torts 24 Contr. 23	Torts 2 Contr. 0	Torts 2 Contr. 0	Torts 5 Contr. 2	Torts 6 Contr. 10	
T = TortsC = Contracts 	
E. Domestic Relations
1. Marriage
 
 It is old news by now, but of course the most important case of the year regarding marriage is the Supreme Court's decision in Obergefell v. Hodges. n423 The Court held that all state prohibitions of same-sex marriages were unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. n424 The Court's analysis centered primarily on the Due Process Clause. After explaining why the right to marry is a fundamental right protected by the Constitution, the Court concluded that "there is no difference between same-and opposite-sex couples with respect to this [right]," n425 that "same-sex couples have the same right as opposite-sex couples to enjoy [it]," n426 and thus "laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by [the Due Process Clause]." n427

 [*293]  The Court further held that these laws also "abridge central precepts of equality" in violation of the Equal Protection Clause: n428

 [These laws] are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. n429

 The Court did not mention the horizontal part of the Defense of Marriage Act (DOMA), which released states from the obligation to give effect to same-sex marriages or unions validly formed in sister states. n430 However, the Court answered in the affirmative the key question of "whether the Constitution requires States to recognize same-sex marriages validly performed out of State." n431 Acknowledging the obvious, the Court observed that "if States are required by the Constitution to issue marriage licenses to same-sex couples, the justifications for refusing to recognize those marriages performed elsewhere are undermined." n432 Having held that "same-sex couples may exercise the fundamental right to marry in all States," the Court also held that "there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." n433
Obviously, this part of Obergefell renders unconstitutional (or at least moot) the horizontal part of DOMA. If the Constitution obligates states to recognize an out-of-state same-sex state marriage, Congress may not release states from that obligation, as the horizontal part of DOMA purported to do. Indeed, DOMA is the only statute enacted under the authority of the Full Faith and Credit Clause n434 in which Congress purported to release states from the obligation to enforce the laws and judgments of sister states. n435 In an earlier, 
 [*294]  unrelated case, at least a plurality of the Supreme Court expressed doubt about Congress's power to "cut back on the measure of faith and credit required by a decision of this Court." n436 The plurality noted that Congress's power to implement the Full Faith and Credit Clause was "not exclusive," and that the Court "has given effect to the Clause beyond that required by implementing legislation." The plurality concluded:

 While Congress clearly has the power to increase the measure of faith and credit that a State must accord to the laws or judgments of another State, there is at least some question whether Congress may cut back on the measure of faith and credit required by a decision of this Court. n437

 By deciding this case on Fourteenth Amendment grounds, Obergefell did not have to - and did not - discuss Congress's power under the Full Faith and Credit Clause. n438
2. Divorce
 
 In the 1990s, Louisiana, Arizona, and Arkansas enacted laws providing for a "covenant" marriage - namely, a marriage in which, generally speaking, no-fault divorce is not as easy to obtain as in a "regular" marriage. For example, a Louisiana covenant marriage imposes a two-year waiting period for a divorce based on no-fault grounds and requires marital counseling before obtaining a divorce on fault-based grounds. n439 In entering into a covenant marriage, the spouses sign a joint declaration, which, inter alia, contains a Louisiana choice-of-law clause. Blackburn v. Blackburn n440 is the first case, as far as it can be ascertained, in which a court in a non-covenant state considered a petition to dissolve a Louisiana covenant marriage. The parties entered into such a marriage in Louisiana in 2004 and later moved to Alabama, where they lived until 2013 when the husband 
 [*295]  filed for divorce on incompatibility of temperament grounds. Appearing pro se, the wife filed a "motion to enforce the covenant marriage." n441
Predictably and correctly, the Alabama court denied the motion and granted a divorce under Alabama law. The court quoted the Supreme Court's statement in Williams v. North Carolina that "the domicil of one spouse within a State gives power to that State ... to dissolve a marriage wheresoever contracted." n442 The court also noted that the Restatement (Second) provides that "the local law of the domiciliary state in which the action is brought will be applied to determine the right to divorce." n443 The court pointed out that, in this case, both parties have been domiciled in Alabama for some years, and even "the drafter of the [Louisiana Covenant] Act conceded in an article that she coauthored that Louisiana ceases to be an 'interested state' if neither party has retained domicile in Louisiana." n444 The court also pointed to an article of the Louisiana conflicts codification, which provides that "a Louisiana court 'may grant a divorce or separation only for grounds provided by the law of [Louisiana].'" n445 The word "only" in that article has a long history, n446 but even without 
 [*296]  that word, the Alabama decision to apply its own law of divorce would be consistent with current practice in all other states. Unlike foreign systems, which separate the question of jurisdiction from the choice-of-law question in divorce cases, n447 American law has merged the two, at least since the early part of the twentieth century. Although this merger may be problematic in some cases in which jurisdiction is not based on domicile, it is not at all problematic in cases such as this, in which both parties are domiciled in the forum state.
In Ashfaq v. Ashfaq, n448 a Texas court recognized what one might call a formal talaq (a unilateral divorce), as opposed to a traditional or "bare talaq," n449 which the husband obtained in Pakistan in conformity with a secular law or ordinance. Under this ordinance, talaq is still unilateral, but one of the differences from the bare talaq is that it requires notice to the wife and a ninety-day waiting period during which an arbitration council attempts to reconcile the parties. The Texas court found that because in this case the talaq complied with the aforementioned requirements, its recognition would not offend Texas's public policy. The court distinguished this case from Aleem v. Aleem, n450 in which a Maryland court held that a talaq that the husband obtained (or rather proclaimed) at the Pakistani Embassy without giving notice to the wife was invalid. The Texas court also noted that in this case (unlike Aleem), the husband presented evidence that the Pakistani ordinance allows wives to obtain a talaq, albeit on narrower grounds than husbands.
Another issue in Ashfaq was whether Pakistan had jurisdiction for talaq purposes, because the spouses were domiciled in Texas and the wife argued that Texas was the only state with jurisdiction to grant a divorce. The Texas court responded that the question was not whether Texas had jurisdiction, but whether Pakistan also had jurisdiction under its own law. The court answered in the affirmative because, under Pakistani law, a Pakistani citizen is considered a resident of Pakistan as long as he retains his Pakistani citizenship. In Ashfaq, the husband retained his Pakistani citizenship, although he had also acquired U.S. citizenship.

 [*297] 
3. Marital Property
 
 One persisting myth is that a court cannot render a judgment in any way affecting real property situated in another state because the court lacks jurisdiction to do so. It is of course true that a court does not have in rem jurisdiction directly to alter title in out-of-state real property. But if the court has jurisdiction over the parties and limits itself to ordering personal relief, it can do indirectly what it cannot do directly. For example, it can order one party to convey out-of-state realty to the other or to pay the equivalent in value. n451 Such a judgment is not only valid in the rendering state, but also valid and enforceable in the situs state under the Full Faith and Credit Clause. n452
At least four 2015 cases confirm the above proposition. In Pathak v. Bhardwaj, n453 an Arizona court held enforceable a California bilateral divorce judgment that adjudicated the marital property rights of California spouses in real property situated in Arizona. In Claborn v. Claborn, n454 a Tennessee court held enforceable an Illinois bilateral divorce judgment ordering the spouses to sell their Tennessee house. In Blumberg v. Blumberg, n455 a New Jersey court that had jurisdiction over both spouses divided their marital assets, which included real property and bank accounts in Estonia. In Ptack v. Ptack, n456 the Supreme Court of the Territory of Guam applied Guam's quasi-community property statute in dividing immovable property situated in Arizona, California, and Minnesota that was owned by divorcing Guam spouses.
Among other cases involving marital property conflicts, the following are worth noting:
. a Kentucky divorce judgment holding that the wife's right to the husband's disability retirement benefits that accrued during the years the spouses were domiciled in Connecticut was governed by Connecticut's classification and distribution law; n457

 [*298]  . a Utah judgment holding that a Nevada choice-of-law clause in a marital property trust established by divorcing Utah spouses was unenforceable as contrary to Utah's public policy; n458
. a Louisiana judgment misinterpreting article 3527 of the Louisiana Civil Code (drafted by this author) and holding that the right of an Alabama surviving spouse to claim a portion of her deceased spouse's separate immovable property situated in Louisiana was non-heritable and thus was extinguished when the surviving spouse died without having exercised that right; n459 and
. another Louisiana case doing a better job with another article of the same code. n460
4. Child Support
 
 The Uniform Interstate Family Support Act (UIFSA), which has been adopted in virtually all states, provides in section 604 that, in a proceeding to enforce or (where permissible) modify a child support order issued in another state,
(1) the law of the issuing state governs "the nature, extent, amount, and duration" of support payments;
(2) the law of the forum governs "the procedures and remedies" for enforcing the order; and
(3) the statute of limitations of either the issuing state or the forum state, "whichever is longer," determines the period during which the obligee may collect arrears due under the order. n461

 [*299]  The federal Full Faith and Credit Support Act (FFCSA) has the same provision with regard to statutes of limitations ("whichever is longer"), but on all other issues its default rule is the law of the forum state. The only exception is that "in interpreting a child support order including the duration of current payments and other obligations of support, a court shall apply the law of the State of the court that issued the order." n462
In In re Marriage of Edelman and Preston, n463 the issue was the duration of the father's support obligation under an order issued by a Connecticut court. Under Connecticut law, the obligation terminated on the child's eighteenth birthday. Under the law of Illinois, the forum state, the obligation extended beyond that birthday. Taken literally, the above-quoted FFCSA provision required the application of Connecticut law only for "interpreting" the order with regard to duration. However, because the order was clear and did not require interpretation, that provision was inapplicable, leaving the default rule of the FFCSA, which pointed to the law of the forum, here Illinois. The court acknowledged this incongruity, but correctly concluded that it was not problematic because the default rule's reference to Illinois law included Illinois's version of the above-quoted section 604 of the UIFSA, which provided that the law of the issuing state (here Connecticut) "governs" the duration of the obligation. Thus, the Illinois court could not extend the obligation by applying Illinois law.
Adams-Smyrichinsky v. Smyrichinsky n464 presented the converse scenario. The support obligation lasted until the child's nineteenth birthday under the law of the issuing state, Indiana, and until his eighteenth birthday under the law of the forum, Kentucky. The Kentucky Supreme Court held that Kentucky could not terminate the father's obligation under its own law when the child reached his eighteenth birthday. n465
In In re Paternity of M.H., n466 both the issuing state, Indiana, and the forum state, Washington, required the father to provide child support until the child's eighteenth birthday. In this case, the issue was not the duration of that obligation, but rather the duration of the judgment that formalized the obligation. Washington had a statute of limitations (sometimes referred to as a dormancy statute) providing that a child support judgment expired on the youngest child's eighteenth 
 [*300]  birthday. In this case, there was only one child and he was already past twenty-eight years of age when his mother sought to enforce arrearages in Washington under the Indiana order. Because Indiana did not have a dormancy statute, the order was enforceable there. The mother argued that, under the above-quoted "whichever is longer" provision of the UIFSA, n467 the court should apply Indiana law. The court rejected the argument, reasoning that the issue was "not the duration of current payments, but the trial court's authority to enforce the order for arrearages." n468 The court relied on another part of the UIFSA, which provides that the law of the forum governs "the procedures and remedies" n469 for collecting arrearages and concluded that the dormancy statute, as "Washington's remedial law," prevented the enforcement of the Indiana order. n470
In Martin v. Phillips, n471 the shoe was on the other foot. Washington was the issuing state, and Kansas the forum state. The Washington order was older than ten years and thus no longer enforceable in Washington, but Kansas did not have a dormancy statute and the order was enforceable under the Kansas statute of limitations. The court held the order enforceable under the "whichever is longer" provision of the UIFSA.
In In re Marriage of Lohman, n472 the judgment creditor sought enforcement of an English support judgment against her ex-husband under the UIFSA. The Colorado trial court held the judgment enforceable after finding that the English court had jurisdiction under English law, but without examining whether the English court's exercise of jurisdiction was consistent with American law. At the time of the trial court's decision, the UIFSA did not expressly require such an examination, but a subsequent amendment (as well as the Restatement (Third) of Foreign Relations Law) n473 added this requirement. The Court of Appeals remanded the case to the trial court in order to determine whether the jurisdictional basis of the English judgment was consistent with American due process standards. n474
Friedetzky v. Hsia n475 involved the interplay between the UIFSA and the Uniform Child Custody Jurisdiction and Enforcement Act 
 [*301]  (UCCJEA), both adopted in Maryland. n476 A Maryland domiciliary filed a petition for custody of her child in Maryland against the putative father, a New York domiciliary. The father filed an answer requesting a paternity test, and initiated discovery to acquire information relevant to matters of paternity and child support. The mother then filed an amended complaint including claims for paternity, child support, and attorney fees, to which the father responded with a motion to dismiss for lack of personal jurisdiction. The court held that, by requesting a paternity test and initiating discovery, the father triggered the UIFSA long-arm statute and waived the limited immunity otherwise afforded in a custody proceeding under the UCCJEA. The court also held in the alternative that the father had sufficient minimum contacts with Maryland by virtue of his actions to establish paternity to constitutionally permit the Maryland court's exercise of personal jurisdiction over him.
F. Miscellaneous Conflicts
 
 Resale Royalties. California's Resale Royalty Act requires a seller of fine art to pay the artist a five percent royalty if "the seller resides in California or the sale takes place in California." n477 In Sam Francis Foundation v. Christies, Inc., n478 the Ninth Circuit, sitting en banc, held that the quoted provision is unconstitutional as violating the dormant Commerce Clause, to the extent it applies to sales taking place outside California. The court prefaced its conclusion with a realistic hypothetical:

 If a California resident has a part-time apartment in New York, buys a sculpture in New York from a North Dakota artist to furnish her apartment, and later sells the sculpture to a friend in New York, the Act requires the payment of a royalty to the North Dakota artist - even if the sculpture, the artist, and the buyer never traveled to, or had any connection with, California. We easily conclude that the royalty requirement, as applied to out-of-state sales by California residents, violates the dormant Commerce Clause. n479

 Property. In In re Wieber, n480 the Washington Supreme Court held that Washington's homestead exemption statute did not apply to 
 [*302]  real property located in other states. Wieber was a bankruptcy case in which two Washington debtors claimed a homestead exemption for real property they owned in Alaska. n481 The court based its holding on the wording and interpretation of the Washington statute, consistent with the results reached in the majority of states. However, as the court noted, a few states (notably California and Minnesota) have applied their corresponding statute extraterritorially. n482
In Miller v. Stuckey, n483 an Ohio court held that a contract for the transfer of Ohio land, which was made in Florida and was invalid under Florida law for lack of proper form, was valid in Ohio because it complied with the less stringent formal requirements of Ohio law.
Statutes of Limitations. In Stephens v. Clash, n484 the Third Circuit held that the action of a Pennsylvania plaintiff against a New York defendant for childhood sexual abuse that occurred in New York was untimely under New York's statute of limitations, which was applicable under Pennsylvania's borrowing statute. In Thea v. Kleinhandler, n485 the Second Circuit applied California's one-year statute of limitations rather than New York's six-year statute of limitations, because New York's borrowing statute mandated the application of the shorter statute of limitations of the state in which the cause of action accrued. The court found that the plaintiff's economic injury occurred in California.
Child Custody. In Garcia v. Pinelo, n486 the Seventh Circuit, in a well-written opinion by Chief Judge Diane Wood, held that: (1) the biological father of a child born in Mexico had custody rights (patria potestad) under Mexican law; (2) the mother's retention of the child in the United States was wrongful under the Hague Convention on the Civil Aspects of International Child Abduction; and (3) the trial court correctly ordered the child's return to Mexico, although the court had discretion to allow the child to remain in the United States under the "mature child" exception.
Adoption. In Nevares v. M.L.S. n487 and In re Adoption of J.M.S., n488 the Supreme Court of Utah reversed two lower court decisions that had misapplied Utah's draconian laws terminating the rights of non-resident biological fathers to object to the placement of their children for adoption in Utah.

 [*303] 
III. Recognition of Judgments
A. Sister-State Judgments
 
 Undoubtedly, the most important decision of the year on recognition of sister-state judgments was the decision of the Alabama Supreme Court in Ex parte E.L., n489 which denied recognition to a Georgia decree that had approved a woman's adoption of her same-sex partner's children eight years earlier. n490 The best indication of the importance of the case is that it provoked the U.S. Supreme Court to issue one of its infrequent stay orders, pending consideration of a petition for certiorari. The Alabama judgment should not, and probably will not, survive review by the Supreme Court. n491
In summary, the Alabama court found that the Georgia court misapplied Georgia law in approving the adoption, and that somehow that misapplication deprived the court of subject-matter jurisdiction. Because the opinion was written almost three months after the U.S. Supreme Court's decision in Obergefell v. Hodges, n492 the Alabama court attempted to avoid giving the impression that the same-sex relation between the biological mother (E.L.) and the adopting mother (V.L.) was a factor in its decision. Instead, the court tried long and hard to find a permissible ground on which to base its decision. It could not base it on a lack of personal jurisdiction, because both women had voluntarily appeared in the Georgia adoption proceeding, nor on the fact that apparently they were not Georgia domiciliaries at that time. The court thought that it found a permissible ground when it concluded that the Georgia court lacked subject-matter jurisdiction under Georgia law.
It is not easy to describe (much less explain or defend) the court's logic, but it went as follows:
. Section 9-11-60(f) of the Georgia Code provides that "[a] judgment void because of lack of jurisdiction of the ... subject matter may be attacked at any time." n493

 [*304]  . Section 19-8-18(e) of the same Code provides that "[a] decree of adoption issued pursuant to subsection (b) of this Code section shall not be subject to any judicial challenge filed more than six months after the date of entry of such decree." n494
. Subsection (b) provides that, before approving an adoption, the court must be "satisfied that each living parent ... has surrendered or had terminated all his rights to the child," and, if this and other requirements are met, the court "shall enter a decree of adoption, terminating all the rights of each parent." n495
. In this case, the children's biological mother did not surrender her parental rights, and the adoption decree did not terminate them. n496
. Thus, the decree was not issued "pursuant to subsection (b)" of section 19-8-18.
. Ergo, the Georgia court lacked subject-matter jurisdiction.
. Because the decree was not issued "pursuant to subsection (b)," the six-month deadline for challenging the decree was inapplicable.
. Under section 9-11-60(f), the decree "may be attacked at any time" as a "judgment void because of lack of jurisdiction of the ... subject matter."
. Because the judgment is void in Georgia, the Full Faith and Credit Clause does not require Alabama to recognize it. In the court's words:

 It is undisputed that E.L. did not surrender her parental rights in this case; accordingly, the Georgia court was not empowered to enter the Georgia judgment declaring V.L. to be an adoptive parent of the children. That is to say, the Georgia court lacked subject-matter jurisdiction to enter the Georgia judgment. The Georgia judgment is accordingly void, and the full faith and credit clause does not require the courts of Alabama to recognize that judgment. Indeed, it would be error for the courts of this State to do so. n497

 In a lone dissent, Justice Shaw criticized the majority for engaging in a constitutionally impermissible review of the merits of the 
 [*305]  Georgia decree. He noted that if, as the majority found, the Georgia court committed an error, it was an error "on the merits, not an error that deprived the Georgia court of subject-matter jurisdiction." n498 He pointed to another provision of the Georgia Code (section 19-8-2(a)), which vests the superior courts of Georgia with exclusive jurisdiction "in all matters of adoption," and noted that this general jurisdictional grant included "matters where the petitioners fail to 'satisfy' the court that the requisites for an adoption were met." n499 Thus, failure to satisfy these requisites did not mean that the Georgia court was "suddenly divested of jurisdiction over the subject matter," especially because, under another provision of the same Code, the court was "still empowered to continue the case." n500
In Kemp & Associates, Inc. v. Chisholm, n501 a Florida court rejected a challenge against a 1961 Texas adoption decree and recognized it under the Full Faith and Credit Clause. n502 The challenger was the adopted child, who claimed the right to inherit the estate of her biological father. She based her challenge on the fact that the father, who did not know of her birth, did not receive notice of the Texas adoption proceeding. At that time, Texas law did not require such a notice. However, in Stanley v. Illinois, n503 an unrelated case decided more than a decade later, the U.S. Supreme Court held that biological fathers had a constitutional due process right to receive notice before termination of their parental rights if they had acknowledged and supported the child. In this case, the father learned of the daughter's existence in 1997 and, although he acknowledged her, neither he nor the daughter took any steps to challenge the adoption before the father died in 2000. The Florida court held that the holding of Stanley could not be applied retroactively to challenge an adoption that was validly granted under the then applicable law and "closed" long before Stanley. n504

 [*306]  Crofoot v. Harris n505 was a penal case involving the sex-offender registration statutes of Washington and California. Following his Washington conviction of a sex offense, the petitioner registered his address with the local police for ten years as the Washington statute provides. At the end of the ten-year period, he obtained a Washington court order releasing him from the obligation to register. In the meantime, he moved to California, which had a statute imposing a lifetime registration on sex offenders. Invoking the Washington court order and the Full Faith and Credit Clause, the petitioner challenged the application of the California statute to him. The California court framed the issue as one of choice of law, rather than one of giving full faith and credit to the Washington order. The court rejected the challenge, noting that, since the petitioner was now a California resident,

 his registration is a matter for this state's law enforcement, not Washington's. The California Legislature has determined his conviction makes him a potential threat to California children. Washington has no legitimate domestic interest in projecting its laws across state lines to subject California children to the reduced protection Washington provides for its citizens. n506

B. Foreign-Country Judgments
 
 Texas is one of the states that adopted the old Uniform Foreign Money-Judgments Recognition Act (UFMJRA) of 1962, but not the new Uniform Foreign-Country Money Judgment Recognition Act (UFCMJRA) of 2005. Both Acts list as a mandatory ground of non-recognition situations in which the judgment was rendered "under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law." n507 However, among the discretionary grounds of non-recognition, the 
 [*307]  new Act added situations in which the judgment was rendered "in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment." n508 The availability of this court-specific defense, in addition to the systemic defense, can make all the difference in some cases. If nothing else, the court-specific defense relieves the American court of the indelicate task (at least in cases involving friendly countries) of passing judgment on the entire foreign system. If the judgment debtor proves lack of integrity of the particular foreign court, recognition may be denied without having to condemn the whole foreign system. Moreover, in some cases, the foreign system may indeed be perfect, but the particular proceeding very imperfect. In such a case, it is no consolation for the judgment debtor to be told that the foreign system renders perfect justice to all other litigants.
In DeJoria v. Maghreb Petroleum Exploration, S.A., n509 the judgment debtor urged a Texas court to not recognize a Moroccan judgment rendered in a dispute between him and, among others, a member of the Moroccan royal family. Because Texas did not allow a court-specific challenge, the debtor had to argue that the Moroccan judicial system as a whole was corrupt. He argued that Moroccan judges were beholden to the King, and recited statements from a USAID report and a U.S. State Department report that the Moroccan judicial system was "permeable to political influence" and that judges were "vulnerable to political retribution" and "subject to influence, particularly in sensitive cases." n510
The court rejected the debtor's argument. The court noted that Texas's UFMJRA did not allow review of "particular judgments," but instead required an evaluation of the entire judicial system. n511 The court also underscored that the Act did not require foreign systems to adopt "every jot and tittle of American due process" n512 but instead only required procedures "compatible" with due process. The court concluded that the Moroccan judicial system met this standard, inter alia, because, as the creditor's experts testified, "Moroccan judges must pass an admissions test and complete two years of judge-specific training" n513 and "the procedures followed in Moroccan commercial courts resemble those followed in United States court." n514 The court compared this case with two cases (among very few) in 
 [*308]  which an American court refused to recognize a foreign judgment on this ground. One was an Iranian judgment rendered against the sister of the former Shah of Iran, a few years after his departure from the country following the 1979 revolution. n515 The second was a judgment rendered in Liberia during the time of a vicious civil war there. n516 The court concluded, correctly, that "Morocco's judicial system is not in such a dire situation." n517
The debtor objected to recognition on two additional grounds: lack of reciprocity and lack of personal jurisdiction. Texas is one of seven states that have added reciprocity to their version of the UFMJRA as a ground for non-recognition. n518 However, the debtor was unable to prove that Moroccan courts would deny recognition to a Texas judgment. He was also unable to prove lack of jurisdiction. The Moroccan court had jurisdiction under Moroccan law, which authorized jurisdiction at the domicile of the plaintiff if the defendant is not domiciled in Morocco. Although American law considers this an exorbitant jurisdictional basis, the defendant nevertheless had other contacts with Morocco that would satisfy American jurisdiction standards.
Alberta Securities Commission v. Ryckman n519 presented a question on which American courts have begun to diverge. When a foreign-country judgment is recognized in one state of the United States, and the judgment creditor seeks recognition in another state, (1) must the second state treat the judgment as a sister-state judgment entitled to almost automatic recognition under the Full Faith and Credit Clause, or (2) may the second state apply the more stringent requirements for recognizing foreign-country judgments? In 2014, a Pennsylvania court followed the first route and a D.C. court the second route. n520 In the 2015, a Delaware court faced the same question in Ryckman and chose the first route.

 [*309]  An Alberta court had rendered a judgment imposing fines on an Alberta domiciliary for violating Canadian securities laws. The judgment creditor then had the judgment recognized in Arizona, where the judgment debtor had since moved, and subsequently sought recognition in Delaware against the debtor's assets there. The Alberta judgment itself was not recognizable in Delaware because it would violate Delaware's UFCMJRA n521 for two reasons. First, the judgment had been issued seventeen years earlier and the UFCMJRA imposed a fifteen-year statute of limitations on foreign-country judgment recognition. Second, the judgment imposed a fine and the UFCMJRA "does not apply" to judgments imposing fines. However, Arizona had not adopted the UFCMJRA and its law did not present these obstacles to recognition. The Arizona court recognized the judgment in a proceeding in which the judgment debtor fully participated.
The debtor objected to recognition in Delaware, accusing the creditor of "forum-shopping and 'bootstrapping' a foreign-country judgment 'through the back door' in Delaware." n522 The court acknowledged the potential for forum shopping, but pointed out that this case did not involve forum shopping because Arizona was the debtor's domicile when the creditor sought recognition there. n523 The court concluded: "Even though Delaware could not directly domesticate the Canadian Judgment, ... Delaware public policy must yield to the stronger national interest in giving full faith and credit to sister-state judgments... . The Arizona Judgment is entitled to full faith and credit in Delaware." n524
In Hyundai Securities Co., Ltd. v. Lee, n525 a California court held that: (1) a Korean judgment ordering the judgment debtor to reimburse the judgment creditor for a fine the creditor paid to a Korean government agency for the debtor's violation of Korean securities laws was not a "fine or penalty" and thus was enforceable under California's UFCMJRA; n526 and (2) the part of the Korean judgment imposing twenty percent post-judgment interest did not offend California's public policy; but (3) the California enforcement judgment should be subject to California's maximum rate of ten percent from the date of that judgment. n527

 [*310]  Savage v. Zelent n528 involved a Scottish judgment for attorney fees. The judgment ordered an unsuccessful plaintiff to pay more than $ 200,000 in attorney fees to her former boyfriend and cohabitant, whom she had sued for damages she allegedly sustained because of their relationship. The judgment creditor sought recognition of the judgment in North Carolina, where the judgment debtor had moved her domicile in the meantime. The debtor objected to recognition on the ground that the Scottish judgment was a judgment for "support ... in matrimonial or family matters" n529 and thus exempt from the scope of North Carolina's version of the UFCMJRA. n530 The court rejected the argument. The court pointed out that, in adopting the UFCMJRA, North Carolina replaced the phrase "a judgment of divorce, support, or maintenance, or other judgment rendered in connection with domestic relations" in the uniform act n531 with the phrase "a judgment for alimony, support, or maintenance in matrimonial or family matters." n532 The court reasoned that the North Carolina version precluded recognition of judgments "'for' alimony, 'for' support, or 'for' maintenance," but the Scottish judgment was "a judgment 'for' attorneys' fees and expenses," n533 and the quasi-matrimonial character of the underlying dispute did not remove the judgment from the scope of North Carolina's UFCMJRA.
The debtor also argued that the Scottish judgment should not be recognized because it was rendered in circumstances that raised substantial doubt about the integrity of the rendering court. The North Carolina court rejected the argument, pointing out that the debtor had invoked the jurisdiction of the Scottish court and that once she had lost on the merits, she had chosen not to participate in the post-trial session in which the court assessed the fees, nor had she availed herself of the process for appealing her case. Nevertheless, the court examined the specifics of the Scottish proceeding and concluded that that it was not unfair.
The court also rejected the debtor's argument that the Scottish "loser pays" rule of assessing attorney fees, as well as the high amount assessed, violated North Carolina's public policy. The court pointed out that North Carolina has a similar rule in certain cases, and that the "arguably large amount" of fees in this case was not excessive, 
 [*311]  considering that the case involved "the largest claim for support ever made in Scotland." n534
Blumberg v. Blumberg n535 was a bitter divorce, child custody, and marital property dispute between two formerly Estonian, currently New Jersey domiciliaries. The husband went back to Estonia and filed for divorce there and, one day later, the wife filed in New Jersey. The Estonian proceeding produced a judgment first, while the New Jersey proceeding was still pending. The husband objected to the continuation of the New Jersey proceeding on the ground that, after the Estonian divorce, there was no longer a marriage to dissolve. The court noted that New Jersey followed the "first-filed rule," under which the court that first acquired jurisdiction has precedence, absent special equities. However, the court found that this rule did not apply in this case, because the Estonian court did not and could not adjudicate the same claims, although there was some overlap. The Estonian judgment divided the spouses' Estonian bank accounts and a house in Estonia, while the New Jersey court was to distribute the New Jersey marital assets. Moreover, the Estonian court did not have jurisdiction to decide child custody because the children had never lived in Estonia. The court decided not to recognize the Estonian judgment and proceeded to divide both the New Jersey and the Estonian marital assets under New Jersey law.
In re Chao-Te n536 was a marital property dispute of sorts, between two wives of the same husband. In 1964, the husband married his first wife in Taiwan according to Taiwanese custom without registering their marriage. Seven years later, after having several children with the first wife, he took a second wife, but this time he registered the marriage. A year later, using money partly contributed by his first wife, he bought a house in Taiwan, which he sold a few years later at more than three times the purchase price. He then used that money to buy a motel in Las Vegas, where he moved with his second wife and their four children. In 2005, the first wife filed a divorce action against the husband in Family Court in Nevada. He responded by filing an action in Taiwan asking for a declaration that his marriage to his first wife was invalid. The Nevada court stayed its proceedings pending the outcome of the Taiwanese action. The Taiwanese court held that the first marriage was valid and the Taiwanese Ministry of the Interior updated its records to reflect that the first wife was the legal wife and the second one a "bigamy wife."
Shortly after the Nevada Family Court resumed its proceedings, the husband died, thus divesting the court of jurisdiction. However, 
 [*312]  the dispute continued between the two wives because the first wife sued to recover half of the value of the motel and other property that the husband had bequeathed to the second wife. The second wife argued that the Taiwanese judgment was not entitled to recognition, but the court rejected her argument because the judgment met all the requirements for recognition under Nevada law. The first wife prevailed.
Completed on January 10, 2016
Symeon C. Symeonides

Legal Topics: 

For related research and practice materials, see the following legal topics:
Administrative LawSovereign ImmunityGovernmentsFederal GovernmentClaims By & AgainstInternational LawDispute ResolutionGeneral Overview

FOOTNOTES:

n1. The previous twenty-eight surveys are, in chronological order: 1987: P. John Kozyris, 36 Am. J. Comp. L. 547 (1988); 1988: Symeon C. Symeonides, 37 Am. J. Comp. L. 457 (1989); 1989: P. John Kozyris & Symeon C. Symeonides, 38 Am. J. Comp. L. 601 (1990); 1990: Larry Kramer, 39 Am. J. Comp. L. 465 (1991); 1991: Michael E. Solimine, 40 Am. J. Comp. L. 951 (1992); 1992: Patrick J. Borchers, 42 Am. J. Comp. L. 125 (1994); 1993: Symeon C. Symeonides, 42 Am. J. Comp. L. 599 (1994); 1994: Symeon C. Symeonides, 43 Am. J. Comp. L. 1 (1995); 1995: Symeon C. Symeonides, 44 Am. J. Comp. L. 181 (1996); 1996: Symeon C. Symeonides, 45 Am. J. Comp. L. 447 (1997); 1997: Symeon C. Symeonides, 46 Am. J. Comp. L 233 (1998); 1998: Symeon C. Symeonides, 47 Am. J. Comp. L. 327 (1999); 1999: Symeon C. Symeonides, 48 Am. J. Comp. L. 143 (2000); 2000: Symeon C. Symeonides, 49 Am. J. Comp. L. 1 (2001); 2001: Symeon C. Symeonides, 50 Am. J. Comp. L. 1 (2002); 2002: Symeon C. Symeonides, 51 Am. J. Comp. L. 1 (2003); 2003: Symeon C. Symeonides, 52 Am. J. Comp. L. 9 (2004); 2004: Symeon C. Symeonides, 52 Am. J. Comp. L. 919 (2004); 2005: Symeon C. Symeonides, 53 Am. J. Comp. L. 559 (2005); 2006: Symeon C. Symeonides, 54 Am. J. Comp. L. 697 (2006); 2007: Symeon C. Symeonides, 56 Am. J. Comp. L. 243 (2008); 2008: Symeon C. Symeonides, 57 Am. J. Comp. L. 269 (2009); 2009: Symeon C. Symeonides, 58 Am. J. Comp. L. 227 (2010); 2010: Symeon C. Symeonides, 59 Am. J. Comp. L. 303 (2011); 2011: Symeon C. Symeonides, 60 Am. J. Comp. L. 291 (2012); 2012: Symeon C. Symeonides, 61 Am. J. Comp. L. 217 (2013); 2013: Symeon C. Symeonides, 62 Am. J. Comp. L. 223 (2014); 2014: Symeon C. Symeonides, 63 Am. J. Comp. L. 299 (2015). Hereinafter, these Surveys are referred to only by the author's name and the survey year. 

n2. This Survey does not reflect the views of the Association of American Law Schools or its Section on Conflict of Laws. 

n3. Because a sizable portion of the readership consists of foreign scholars who may be less familiar with certain aspects of American law, this Survey attempts to provide background information and explanations that normally would be unnecessary for the core readership of American conflicts scholars. 

n4. These cases were identified by searching Westlaw's 2014 "All states," "CTA," and "SCT" databases with various queries, as well as with all the key numbers that Westlaw uses in placing cases into its "Conflict of Laws" database. 

n5. This number includes all decisions of the federal district courts and specialized lower federal courts, as well as a very small number of state trial-court decisions posted on Westlaw. 

n6. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1669 (2013). 

n7. 757 F.3d 249 (5th Cir. 2014) (discussed in Symeonides, 2014 Survey, supra note 1, at 305-10), aff'd in part and rev'd in part, Hernandez v. U.S., 785 F.3d 117 (5th Cir. 2015) (see discussion infra text accompanying notes 11-15); Brittany Davidson, Note, Shoot First, Ask Later: Constitutional Rights at the Border After Boumediene, 64 Am. U. L. Rev. 1547 (2015). 

n8. 28 U.S.C.§§1346(b)(1). 

n9. 28 U.S.C. § 1350. 

n10. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 

n11. See Hernandez v. U.S., 785 F.3d 117 (5th Cir. 2015), cert. filed, 84 U.S.L.W. 3060 (U.S. July 23, 2015), docketed (U.S. July 27, 2015) (No. 15-118). For a recent discussion of this issue, see Guinevere E. Moore & Robert T. Moore, The Extraterritorial Application of the Fifth Amendment: A Need for Expanded Constitutional Protection, 46 St. Mary's L.J. 1 (2014). 

n12. Hernandez, 785 F.3d at 120. 

n13. Id. 

n14. 553 U.S. 723 (2008). 

n15. Hernandez, 785 F.3d at 121. 

n16. 804 F.3d 417 (D.C. Cir. 2015). 

n17. Id. at 418. 

n18. Id. at 425. 

n19. 28 U.S.C. § 1350 Note. 

n20. Meshal, 804 F.3d at 425 (citing Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1664 (2013); Morrison v. National Australia Bank Ltd., 561 U.S. 247, 255, 130 S. Ct. 2869, 2877 (2010)). 

n21. Id. 

n22. Id. at 427. 

n23. Id. at 437 (Pillard, J., dissenting). 

n24. Id. at 438. 

n25. Id. 

n26. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. 

n27. Meshal, 804 F.3d at 438-39. 

n28. Id. at 439. 

n29. Id. at 439-40. 

n30. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1669 (2013) ("And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application."). 

n31. For samples from this year's American literature on this subject, see, inter alia, Roxanna Altholz, Chronicle of a Death Foretold: The Future of U.S. Human Rights Litigation Post-Kiobel, 102 Cal. L. Rev. 1495 (2014); Brady Bizarro, "Vigilant Doorkeeping": Post-Kiobel Corporate Accountability Under the Alien Tort Statute for Negligence and Violations of the International Prohibition on Nonconsensual Medical Experimentation, 33 B.U. Int'l L.J. 493 (2015); Donald E. Childress, Is an International Arbitral Tribunal the Answer to the Challenges of Litigating Transnational Human Rights Cases in a Post-Kiobel World?, 19 UCLA J. Int'l L. & Foreign Aff. 31 (2015); Anthony J. Colangelo & Christopher R. Knight, Post-Kiobel Procedure: Subject Matter Jurisdiction or Prescriptive Jurisdiction?, 19 UCLA J. Int'l L. & Foreign Aff. 49 (2015); Anthony J. Colangelo, International Law in U.S. State Courts: Extraterritoriality and "False Conflicts" of Law, 48 Int'l Law. 1 (2014); Ross J. Corbett, Kiobel, Bauman, and the Presumption against the Extraterritorial Application of the Alien Tort Statute, 13 Nw. U. J. Int'l Hum. Rts. 50 (2015); Ursula T. Doyle, The Evidence of Things Not Seen: Divining Balancing Factors from Kiobel's "Touch and Concern" Test, 66 Hastings L.J. 443 (2015); Anna Grear & Burns H. Weston, The Betrayal of Human Rights and the Urgency of Universal Corporate Accountability: Reflections on a Post- Kiobel Lawscape, 15 Hum. Rts. L. Rev. 21 (2015); Ivana Isailovic, Reframing the Kiobel Case: Political Recognition and State Jurisdiction, 38 Suffolk Transnat'l L. Rev. (2015); Pierre N. Leval, Beyond Kiobel: The Future of Human Rights Litigation in US Courts, 19 UCLA J. Int'l L. & Foreign Aff. 1 (2015); Daphne Lin, Reaction to: "Lex Internationalis: Kiobel, Empires, and the Color of Human Rights", 7 Geo. J.L. & Mod. Critical Race Persp. 107 (2015); Alex S. Moe, A Test by Any Other Name: The Influence of Justice Breyer's Concurrence in Kiobel v. Royal Dutch Petroleum Co., 46 Loy. U. Chi. L.J. 225 (2014); Paul D. Mora, The Alien Tort Statute After Kiobel: The Possibility of Unlawful Assertions of Universal Civil Jurisdiction Still Remains, 63 Int'l & Comp. L.Q. 699 (2014); P. Sean Morris, Lex Internationalis: Kiobel, Empires, and the Color of Human Rights, 7 Geo. J.L. & Mod. Critical Race Persp. 71 (2015); Stewart Pollock, A Political Embarrassment: Jurisdiction and the Alien Tort Statute, Foreign Sovereign Immunities Act, and Political Question Doctrine, 51 Cal. W. L. Rev. 225 (2015); Jordan B. Redmon, Alien Torts in Foreign Courts: Responsible Restrictions on Extraterritorial Application of the Alien Tort Statute, 84 Miss. L.J. 1329 (2015); Vassilis P. Tzevelekos, Reconstructing the Effective Control Criterion in Extraterritorial Human Rights Breaches: Direct Attribution of Wrongfulness, Due Diligence, and Concurrent Responsibility, 36 Mich. J. Int'l L. 129 (2014); Peter Weiss, ATS Lives: Al Shimari Survives Kiobel, 19 UCLA J. Int'l L. & Foreign Aff. 19 (2015); Ernest A. Young, Universal Jurisdiction, the Alien Tort Statute, and Transnational Public-Law Litigation After Kiobel, 64 Duke L.J. 1023 (2015). For foreign and comparative perspectives, see, e.g., Lorand Bartels, The EU's Human Rights Obligations in Relation to Policies with Extraterritorial Effects, 25 Eur. J. Int'l L. 1071 (2014); Enzo Cannizzaro, The EU's Human Rights Obligations in Relation to Policies with Extraterritorial Effects: A Reply to Lorand Bartels, 25 Eur. J. Int'l L. 1093 (2014); Arturo J. Carrillo & Annalise K. Nelson, Comparative Law Study and Analysis of National Legislation Relating to Crimes Against Humanity and Extraterritorial Jurisdiction, 46 Geo. Wash. Int'l L. Rev. 481 (2014); Sean E.D. Fairhurst & Zoe Thoms, Post-Kiobel v. Royal Dutch Petroleum Co.: Is Canada Poised to Become an Alternative Jurisdiction for Extraterritorial Human Rights Litigation?, 52 Alta. L. Rev. 389 (2014); Jody A. Kirshner, A Call for the EU to Assume Jurisdiction over Extraterritorial Corporate Human Rights Abuses, 13 Nw. J. Int'l Hum. Rts. 1 (2015). 

n32. See Symeonides, 2014 Survey, supra note 1, at 311-19. 

n33. 782 F.3d 576 (11th Cir. 2015). 

n34. 767 F.3d 1229 (11th Cir. 2014) (discussed in Symeonides, 2014 Survey, supra note 1, at 316-17). 

n35. Doe, 782 F.3d at 595 (footnote omitted):

If the defendants are U.S. citizens, some of the foreign policy concerns that the presumption against extraterritorial application is intended to reduce may be assuaged or inapplicable, since we would not be haling foreign nationals into U.S. courts to defend themselves. Additionally, the acts of U.S. citizens may impact the United States, whether their actions occur extraterritorially or within the United States, particularly if those actions include international law violations. 

n36. Id. at 596. 

n37. Id. at 597. 

n38. Id. at 598. 

n39. Id. at 597. 

n40. Id. at 598. 

n41. Id. at 600. 

n42. Id. at 605. 

n43. 796 F.3d 160 (2d Cir. 2015). 

n44. Id. at 168. 

n45. Id. at 169. 

n46. Id. at 167 (emphasis added). 

n47. Id. at 170. 

n48. 808 F.3d 144 (2d Cir. 2015). 

n49. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir.2010), aff'd on other grounds, 133 S. Ct. 1659 (2013). 

n50. Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013, 1017 (7th Cir. 2011). 

n51. See Doe VIII v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011), vacated on other grounds, 527 F. App'x 7 (D.C. Cir. 2013); Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516 (4th Cir. 2014); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999); Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013 (7th Cir. 2011); Doe I v. Nestle USA, Inc., 766 F.3d 1013 (9th Cir. 2014); Doe v. Drummond Co., 782 F.3d 576 (11th Cir. 2015). 

n52. In re Arab Bank, 808 F.3d at 151. 

n53. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013). 

n54. In re Arab Bank, 808 F.3d at 155. 

n55. See Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (discussed in Symeonides, 2004 Survey, supra note 1, at 925-30, 935-38). 

n56. In re Arab Bank, 808 F.3d at 155. 

n57. Id. at 156. 

n58. Id. at 157. 

n59. Id. On May 9, 2016, the Second Circuit denied rehearing en banc. See In re Arab Bank, PLC Alien Tort Statute Litigation, Nos. 13-3605, 13-3620, 13-3635, 13-4650, 13-4652, 2016 WL 2620283. 

n60. In addition to the cases discussed in the text, see the following cases involving the application of the federal statutes indicated in parentheses: U.S. v. Georgiou, 777 F.3d 125 (3d Cir. 2015), cert. denied, 136 S. Ct. 401 (2015) (Securities Exchange Act and Wire Fraud statute); Lay v. U.S., 623 F. App'x 790 (6th Cir. 2015) (Investment Adviser Act); European Community v. RJR Nabisco, Inc., 783 F.3d 123 (2d Cir. 2015), cert. granted, 136 S. Ct. 28 (2015) (Racketeer Influenced and Corrupt Organizations Act (RICO)); Hourani v. Mirtchev, 796 F.3d 1 (D.C. Cir. 2015) (RICO); WesternGeco L.L.C. v. ION Geophysical Corp., 791 F.3d 1340 (Fed. Cir. 2015), reh'g en banc denied, 621 F. App'x 663 (Fed. Cir. 2015) (Patent Act); Carnegie Mellon University v. Marvell Technology Group, Ltd., 807 F.3d 1283 (Fed. Cir. 2015), reh'g en banc denied, 805 F.3d 1382 (Fed. Cir. 2015) (Patent Act); Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015) (Anti-SLAPP Act); U.S. v. Straker, 800 F.3d 570 (D.C. Cir. 2015), reh'g en banc denied, CADC 11-3054 (Nov. 12, 2015), cert. denied, No. 15-7144, 2016 WL 763399 (U.S. Feb. 29, 2016) (Hostage Taking Act). For samples from this year's literature on the extraterritoriality of federal statutes other than the ATS, see, e.g., Franklin A. Gevurtz, Determining Extraterritoriality, 56 Wm. & Mary L. Rev. 341 (2014); Nathan Lee, The Extraterritorial Reach of United States Securities Actions After Morrison v. National Australian Bank, 13 Rich. J. Global L. & Bus. 623 (2015); Annalisa Leibold, Extraterritorial Application of the FCPA Under International Law, 51 Willamette L. Rev. 225 (2015); Edward M. Morrison, Extraterritorial Avoidance Actions: Lessons from Madoff, 9 Brook. J. Corp. Fin. & Com. L. 163 (2014); Melvin L. Otey, Why RICO's Extraterritorial Reach is Properly Coextensive with the Reach of Its Predicates, 14 J. Int'l Bus. & L. 33 (2015); Elizabeth A. Rowe & Daniel M. Mahfood, Trade Secrets, Trade, and Extraterritoriality, 66 Ala. L. Rev. 63 (2015); Jeffrey M. Schmitt, Making Sense of Extraterritoriality: Why California's Progressive Global Warming and Animal Welfare Legislation Does Not Violate the Dormant Commerce Clause, 39 Harv. Envtl. L. Rev. 423 (2015); Ned Schultheis, Warrants in the Clouds: How Extraterritorial Application of the Stored Communications Act Threatens the United States' Cloud Storage Industry, 9 Brook. J. Corp. Fin. & Com. L. 661 (2015); Clyde Spillenger, Risk Regulation, Extraterritoriality, and Domicile: The Constitutionalization of American Choice of Law, 1850-1940, 62 UCLA L. Rev. 1240 (2015); Anna Su, Speech Beyond Borders: Extraterritoriality and the First Amendment, 67 Vand. L. Rev. 1373 (2014). For foreign perspectives, see, e.g., Joanne Scott, The New EU Extraterritoriality, 51 Common Mkt. L. Rev. 1343 (2014); Dan J.B. Svantesson, A Jurisprudential Justification for Extraterritoriality in (Private) International Law, 13 Santa Clara J. Int'l L. 517 (2015); Spiros Tassis & Margarita Peristeraki, The Extraterritorial Scope of the "Right to Be Forgotten" and How This Affects Obligations of Search Engine Operators Located Outside the EU, 2 Eur. Networks L. & Reg. Q. 244 (2014); Nyongesa M. Wabwile, Transnational Corruption, Violations of Human Rights and States' Extraterritorial Responsibility: A Case for International Action Strategies, 8 Afr. J. Legal Studies 87 (2015). 

n61. U.S. Const. art. I, § 8, cl. 10. 

n62. 18 U.S.C. § 7(1), (7) (2001). 

n63. 782 F.3d 159 (4th Cir. 2015), cert. denied, 136 S. Ct. 179 (2015). 

n64. U.N. Convention on the Law of the Sea art. 57, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 16, 1994). 

n65. Beyle, 782 F.3d at 167. 

n66. 46 U.S.C. § 70503(a); 46 U.S.C. § 70502(c)(1)(A). 

n67. 46 U.S.C. § 70506(b). 

n68. 795 F.3d 138 (D.C. Cir. 2015), reh'g en banc denied (Oct. 19, 2015). 

n69. Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804). 

n70. Ballestas, 795 F.3d at 144 (internal quotation marks omitted). 

n71. Id. (internal quotation marks omitted). See also id. ("When the underlying criminal statute's extraterritorial reach is unquestionable, the presumption [against extraterritoriality] is rebutted with equal force for ancillary offenses in the same statute."). 

n72. U.S. Const. amend. V. 

n73. See, e.g., United States v. Brehm, 691 F.3d 547, 552-54 (4th Cir. 2012); United States v. Ibarguen-Mosquera, 634 F.3d 1370, 1378-79 (11th Cir. 2011). 

n74. Ballestas, 795 F.3d at 148. 

n75. Id. (internal quotation marks omitted). 

n76. Id. In United States v. Walton, 627 F. App'x 911 (11th Cir. 2015), the defendant, who was arrested aboard a stateless vessel on the high seas, argued that the MDLEA is unconstitutional because the Felonies Clause, U.S. Const. art. I, § 8, cl. 10, does not give Congress the authority to proscribe drug trafficking in international waters without a showing of some nexus to the United States. Reiterating its own precedents, the Eleventh Circuit rejected the argument, holding that conduct proscribed by the MDLEA need not have a nexus to the United States because universal and protective principles support its extraterritorial reach. 

n77. 18 U.S.C. § 2423(c). 

n78. See 18 U.S.C.§§1591, 2246, 2423(f). 

n79. 798 F.3d 201 (4th Cir. 2015). 

n80. U.S. Const., art. 1, § 8, cl. 3. 

n81. Bollinger, 798 F.3d at 215. 

n82. United States v. Lopez, 514 U.S. 549, 558 (1995). 

n83. Bollinger, 798 F.3d at 215 (quoting Lopez, 514 U.S. at 558). 

n84. Id. 

n85. Id. at 212. 

n86. Id. at 216. 

n87. Id. at 218. 

n88. Id. at 219. 

n89. Id. at 214. In State v. Sumulikoski, 110 A.3d 856 (N.J. 2015), the New Jersey Supreme Court held that New Jersey lacked jurisdiction to prosecute two New Jersey teachers who acted as chaperons during a school trip to Germany and engaged in sexual acts with their minor students in that country. 

n90. 28 U.S.C. § 1605(a)(2) (emphasis added). For other 2015 cases involving the FSIA's commercial activity exception, see, e.g., Global Technology, Inc. v. Yubei (XinXiang) Power Steering System Co., 807 F.3d 806 (6th Cir. 2015); Singh ex rel. Singh v. Caribbean Airlines Ltd., 798 F.3d 1355 (11th Cir. 2015), cert. denied, 136 S. Ct. 850 (2016); Schoeps v. Freistaat Bayern, 611 F. App'x 32 (2d Cir. 2015), cert. denied, 136 S. Ct. 895 (2016), reh'g denied, No. 15-447, 2016 WL 1079050 (U.S. Mar. 1, 2016); Intercontinental Industries Corp. v. Wuhan State Owned Industrial Holdings Co., Ltd., 619 F. App'x 592 (9th Cir. 2015), as amended on clarification (Aug. 19, 2015); EM Ltd. v. Banco Central De La Republica Argentina, 800 F.3d 78 (2d Cir. 2015); Ezeiruaku v. Bull, 617 F. App'x 179 (3d Cir. 2015); Architectural Ingenieria Siglo XXI, LLC v. Dominican Republic, 788 F.3d 1329 (11th Cir. 2015). For cases involving the expropriation exception, see Helmerich & Payne Intern. Drilling Co. v. Bolivarian Republic of Venezuela, 784 F.3d 804 (D.C. Cir. 2015), reh'g en banc denied (July 30, 2015), petition for cert. filed, 84 U.S.L.W. 3202 (Oct. 5, 2015), docketed (U.S. Oct. 6, 2015) (No. 15-423), and petition for cert. filed, 84 U.S.L.W. 3327 (Nov. 25, 2015), docketed (U.S. Nov. 27, 2015) (No. 15-698); Mezerhane v. Republica Bolivariana de Venezuela, 785 F.3d 545 (11th Cir. 2015), cert. denied, 136 S. Ct. 800 (2016). For cases involving the arbitration exception, see Chevron Corp. v. Ecuador, 795 F.3d 200 (D.C. Cir. 2015), reh'g en banc denied (Sep. 28, 2015); Belize Social Development Ltd. v. Government of Belize, 794 F.3d 99 (D.C. Cir. 2015), reh'g en banc denied (Sep. 28, 2015). For cases involving other exceptions, see Bennett v. Islamic Republic of Iran, 799 F.3d 1281 (9th Cir. 2015) (exception from attachment); Mohammadi v. Islamic Republic of Iran, 782 F.3d 9 (D.C. Cir. 2015) (terrorism exception). 

n91. 136 S. Ct. 390 (2015). 

n92. 737 F.3d 584, 602 (9th Cir. 2013). 

n93. 507 U.S. 349 (1993). 

n94. Sachs, 136 S. Ct. at 395 (quoting Nelson, 507 U.S. at 357). 

n95. Id. at 396. 

n96. Id. at 395. 

n97. In the last several years, this author has identified only a handful of cases in which the forum selection and choice-of-law clauses pointed to different states. See, e.g., Rucker v. Oasis Legal Finance, L.L.C., 632 F.3d 1231 (11th Cir. 2011) (contract containing Illinois forum selection and Alabama choice-of-law clauses); Intermetals Corp. v. Hanover Int'l AG fur Industrieversicherungen, 188 F. Supp. 2d 454, 458 (D.N.J. 2001) (contract containing Austrian forum selection and English choice-of-law clauses). 

n98. Because most of the cases discussed here did not uphold the choice-of-law clause, the reader may form the impression that American courts are hostile to these clauses. Precisely the opposite is true. In most cases, courts routinely enforce choice-of-law clauses, often with little or no discussion. These cases, however, present little interest. By contrast, cases that refuse to enforce choice-of-law clauses usually contain long and reasoned discussion, which is why such cases are overrepresented in this Survey. 

n99. See Symeon C. Symeonides, Oxford Commentaries on American Law: Choice of Law 435-42 (2016) [hereinafter Symeonides, Oxford Commentaries]. 

n100. 9 U.S.C.§§2. 

n101. 563 U.S. 333 (2011). For other recent examples, see Marmet Health Care Ctr., Inc. v. Brown, 132 S. Ct. 1201 (2012) (reversing a West Virginia judgment that had held unenforceable a pre-dispute arbitration clause encompassing wrongful death claims arising from a nursing home contract); Nitro-Lift Techs., L.L.C. v. Howard, 133 S. Ct. 500 (2012) (reversing an Oklahoma judgment that had held unenforceable a pre-dispute arbitration clause in an employment contract that contained a non-compete covenant prohibited by an Oklahoma statute). 

n102. For extensive comparative references and discussion, see Symeon C. Symeonides, Codifying Choice of Law Around the World: An International Comparative Analysis 110-70 (2015) [hereinafter Symeonides, Codifying Choice of Law]; Symeonides, Oxford Commentaries, supra note 99, at 410-14. 

n103. See Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations (Rome I) arts. 6(2), 8(1), 2008 O.J. (L 177) 6, 12-13 [hereinafter Rome I Regulation]. In consumer contracts, the state of the lex causae is the state in which the consumer has her habitual residence, if the other party pursues commercial or professional activities in that state or directs such activities to that state or to several states including that state. Rome I Regulation, supra, art. 6(1). In employment contracts, the state of the lex causae is ordinarily the state in which (or from which) the employee habitually works, unless the contract is more closely connected with another state. Rome I Regulation, supra, art. 8(2)-(4). 

n104. See Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast) arts. 19, 23, 2012 O.J. (L 351) 1, 10. 

n105. Patrick J. Borchers, Categorical Exceptions to Party Autonomy in Private International Law, 82 Tul. L. Rev. 1645, 1659 (2008). 

n106. Restatement (Second) of Conflict of Laws § 187 (Am. Law Inst. 1971). 

n107. A third requirement is that the state of the lex causae must have a "materially greater interest" in applying its law than the chosen state, but in most cases that requirement is subsumed into the process of identifying the lex causae. 

n108. U.C.C. § 1-301(a) (amended 2008) (Am. Law Inst. & Unif. Law Comm'n 2015) ("When a transaction bears a reasonable relation to [the forum] state and also to another state or nation the parties may agree that the law either of [the forum] state or of such other state or nation shall govern their rights and duties."). Thus, in contracts covered by this provision, a "reasonable relation" with the chosen state is the only express condition for allowing a contractual choice of law. 

n109. See Eugene F. Scoles, Peter Hay, Patrick J Borchers & Symeon C. Symeonides, Conflict of Laws 986-87 (4th ed. 2004). 

n110. See Symeonides, Codifying Choice of Law, supra note 102, at 294-99. 

n111. Cases involving such statutes are discussed infra Part II.A.1.e. 

n112. Restatement (Second) of Conflict of Laws § 6(1)-(2). 

n113. 187 Cal. Rptr. 3d 613 (Ct. App. 2015). 

n114. Id. at 616, 627-28. 

n115. Id. at 627. 

n116. Id. at 621. 

n117. Id. at 626. 

n118. In Taylor v. California Voices, LLC, No. A142268, 2015 WL 5766713 (Cal. Ct. App. Oct. 1, 2015), a contract between a Pennsylvania employer and a California employee contained Pennsylvania choice-of-law and forum selection clauses. However, the plaintiff's allegations against the defendant did not involve any of the unwaivable provisions of the California Labor Code. The California court distinguished Verdugo, 187 Cal. Rptr. 3d 613, on this ground and held the forum selection clause enforceable. 

n119. 354 P.3d 908 (Wash. Ct. App. 2015). 

n120. Wash. Rev. Code § 49.60. 

n121. Acharya, 354 P.3d at 914. 

n122. See id. ("Preventing a Washington plaintiff from enforcing Washington law is contrary to public policy.). See also id. at 915 ("Litigation in the designated forum, together with the choice of law clause, would foreclose [the plaintiff's] ability to pursue her claim for discrimination cognizable under WLAD. Public policy in Washington dictates that such WLAD rights may not be waived by contract."). 

n123. 805 F.3d 573 (5th Cir. 2015) (decided under Texas conflicts law). 

n124. Restatement (Second) of Conflict of Laws § 187 (Am. Law Inst. 1971). 

n125. Cardoni, 805 F.3d at 576. 

n126. In Parker v. Schlumberger Technology Corporation, 475 S.W.3d 914 (Tex. App. 2015), a contract between a Texas company and an Oklahoma company acquired by the Texas company contained a Texas choice-of-law clause, an arbitration clause, and non-compete covenants that were valid under Texas law. The Texas court applied Texas law, after finding that Oklahoma did not have a materially greater interest in applying its law than Oklahoma. The court granted a motion to compel arbitration and issued an interim injunction enforcing the non-compete covenants against the key employee of the Oklahoma company. 

n127. 34 N.E.3d 357 (N.Y. 2015). 

n128. Fla. Stat. § 542.335(1)(h). 

n129. 780 F.3d 710 (6th Cir. 2015) (decided under Ohio conflicts law), reh'g en banc denied (Apr. 23, 2015), cert. denied, 136 S. Ct. 793 (2016). 

n130. 15 U.S.C.§§1692e-1692f. 

n131. Restatement (Second) of Conflict of Laws § 187 (Am. Law Inst. 1971). 

n132. Wise, 780 F.3d at 716. 

n133. Id. 

n134. 798 F.3d 1149 (9th Cir. 2015) (decided under California conflicts law). 

n135. See id. at 1157 (noting that section 1717 was "part of an overall legislative policy designed to enable consumers and others who may be in a disadvantageous contractual bargaining position to protect their rights through the judicial process by permitting recovery of attorney's fees incurred in litigation in the event they prevail") (internal quotation marks omitted). 

n136. See id. at 1158:

Because [the borrower] is a California citizen and would be on the losing end of a non-reciprocal attorney's fees provision, the state of California has a substantial interest in applying its law to the attorney's fees dispute in this case... . We conclude that California has a materially-greater interest in seeing its fundamental policy applied in this case than Georgia has in applying its own law. 

n137. 796 F.3d 193 (2d Cir. 2015). 

n138. Id. at 197. 

n139. Id. at 198. 

n140. See, e.g., Restatement (Second) of Conflict of Laws § 187(3) (Am. Law Inst. 1971) ("In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law."). 

n141. Rome I Regulation, supra note 103, art. 20. For documentation, see Symeonides, Codifying Choice of Law, supra note 102, at 138-40. 

n142. A unilateral choice-of-law rule delineates the reach only of the law of the enacting state, but not the reach of foreign law. It defines the cases that, because of their contacts with the enacting state, are governed by that state's substantive law, but does not address the question of which state's law will govern cases that lack these contacts. 

n143. A bilateral choice-of-law rule defines the reach of the laws of both the enacting state and foreign states. It provides that a case that has certain contacts with a state will be governed by the law of that state, be it the forum or a foreign state. 

n144. Section 1-301 of the Uniform Probate Code defines the cases that fall within the territorial reach of the substantive law of the enacting state. Section 2-401 designates the state whose law governs exempt property and allowances, section 2-506 designates the law governing testamentary form, and section 2-703 designates the law governing the meaning and effect of a governing instrument. 

n145. N.Y. Est. Powers & Trusts Law § 3-5.1(b)(2). 

n146. 45 N.E.3d 917 (N.Y. 2015). 

n147. 982 N.E.2d 609 (N.Y. 2012), cert denied, 133 S. Ct. 2396 (2013) (discussed in Symeonides, 2012 Survey, supra note 1, at 245-46). 

n148. Snow, 45 N.E.3d at 921. See also id. at 922 ("EPTL 3-5.1(b)(2) simply represents a common-law conflicts principle that has been codified into statute."). 

n149. Hans Dolle, Internationales Privatrecht 2 (1968) ("Das internationales Privatrecht ist nicht 'Entscheidungsrecht', sondern 'Verweisungsrecht.'"). 

n150. Snow, 45 N.E.3d at 923. 

n151. Id. at 923. 

n152. Id. 

n153. See Czewski v. KVH Industries, Inc., 607 F. App'x 478 (6th Cir. 2015) (decided under Michigan conflicts law); Pivotal Payments Direct Corp., v. Planet Payment, Inc., 2015 WL 9595285 (Del. Super. Dec. 29, 2015). 

n154. See East Point Business Park, LLC v. Private Real Estate Holdings, LLC, No. 45A05-1412-MF-584, 2015 WL 9589768 (Ind. App. Dec. 31, 2015). 

n155. See Masters Grp. Int'l, Inc. v. Comerica Bank, 2015 MT 192, 380 Mont. 1, 352 P.3d 1101 ("The ... Agreement 'shall be governed and controlled in all respects by the laws of the State of Michigan, ... including interpretation, enforceability, validity and construction."), reh'g denied (Aug. 4, 2015); Bentley v. Equity Trust, No. 14CA010630, 2015-Ohio-4735, 2015 WL 7254796 (Ct. App. Nov. 16, 2015) ("This Agreement ... shall be governed by and construed under the applicable laws of the State of Ohio."); Tonerize, L.L.C. v. PLR IP Holdings, L.L.C., 2014 WL 7723568 (N.J. Super. Ct. App. Div., Feb. 2, 2015) ("This Agreement shall be governed by and construed in accordance with the law of the State of Minnesota ... [and] Courts located in the State of Minnesota shall have exclusive jurisdiction of any dispute related to this Agreement or the breach thereof."), cert. denied, 221 N.J. 565 (2015); Commercial Money Ctr. v. Safeco Ins. Co. of America, 605 F. App'x 609 (9th Cir. 2015) ("The obligations, rights and remedies of the parties under this agreement shall be determined in accordance with the laws of the state of Nevada."). 

n156. See Family Endowment Partners, L.P. v. Sutow, 33 Mass. L. Rptr. 120 (Super. Ct. 2015) (the clause provided that the agreement "shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts"). 

n157. 2015-Ohio-2218, 34 N.E.3d 160 (Ct. App. 2015). 

n158. See supra Part II.A.1.a. 

n159. In Overton v. Westgate Resorts, Ltd., L.P., No. E2014-00303-COA-R3-CV, 2015 WL 399218 (Tenn. Ct. App., Jan. 30, 2015), appeal denied (June 15, 2015), cert. denied, 136 S. Ct. 486 (Nov. 9, 2015), a Tennessee consumer protection statute prohibited non-Tennessee forum selection clauses in cases arising under the statute. The court struck down a Florida forum selection clause under this statute. The court also held that the clause was invalid because it was part of a contract that the defendants had fraudulently induced the plaintiffs into signing. The court rejected the defendant's argument that the plaintiffs specifically had to show fraudulent inducement with respect to accepting the particular clause. 

n160. Cal. Civ. Proc. Code § 410.42. 

n161. 192 Cal. Rptr. 3d 838 (Ct. App. 2015), review denied (Jan. 13, 2016). 

n162. 2014-1436 (La. App. 1 Cir. 8/12/15), 181 So. 3d 69, reh'g denied (Sep. 23, 2015), writ denied, 2015-1944 (La. 11/30/15), 182 So. 3d 939. 

n163. See Symeonides, Oxford Commentaries, supra note 99, at 442-60. 

n164. Beilfuss v. Huffy Corporation, 2004 WI App 118, P 9, 685 N.W.2d 373, 376 (characterizing as the "chicken or the egg" problem the question of whether to "construe each clause separately and, if so, in what order"). The court examined first the choice-of-law clause and found it unenforceable because the chosen law of Ohio would enforce a non-compete agreement that violated Wisconsin's public policy in a case that otherwise would be governed by Wisconsin law. That being so, the court reasoned, it would be unreasonable to enforce a forum selection clause that would send the parties to an Ohio court, which would enforce the choice-of-law clause. 

n165. For citations and representative samples, see Symeonides, Oxford Commentaries, supra note 99, at 448-49. 

n166. See id. at 449-52. 

n167. See id. at 452-56. 

n168. See Medical Transcript v. Walker Rural Health, No. 2130901, 2015 WL 5192201 (Ala. Civ. App. Sept. 4, 2015) (applying the contractually chosen law of New Jersey and holding enforceable a New Jersey forum selection clause). 

n169. See Roberts v. TriQuint Semiconductor, Inc., 364 P.3d 328 (en banc) (Dec. 10, 2015) (applying the contractually chosen law of Delaware and finding that the Delaware forum selection clause was valid under that law, and then applying Oregon law and finding the clause enforceable under that law). 

n170. See Verdugo v. Alliantgroup, L.P., 187 Cal. Rptr. 3d 613 (Ct. App. 2015) (discussed supra text accompanying notes 113-118); Brown & Brown, Inc. v. Johnson, 34 N.E.3d 357 (N.Y. 2015) (discussed supra text accompanying notes 127-128); Wise v. Zwicker & Associates, P.C., 780 F.3d 710 (6th Cir. 2015) (discussed supra text accompanying notes 129-133); First Intercontinental Bank v. Ahn, 798 F.3d 1149 (9th Cir. 2015) (discussed supra text accompanying notes 134-136); Acharya v. Microsoft Corp., 354 P.3d 908 (Wash. Ct. App. 2015) (discussed supra text accompanying notes 119-122; applying Washington law and holding unenforceable a Swiss forum selection clause in a contract that also contained a Swiss choice-of-law clause); McArthur v. Kerzner Int'l Bahamas Ltd., 607 F. App'x 845 (11th Cir. 2015) (decided under Florida conflicts law; applying Florida law and holding enforceable a Bahamian forum selection clause in a contract that also contained a Bahamian choice-of-law clause); Carter's of New Bedford, Inc. v. Nike, Inc., 790 F.3d 289 (1st Cir. 2015) (decided under Massachusetts conflicts law; applying Massachusetts law and holding enforceable an Oregon forum selection clause in a contract that also contained an Oregon choice-of-law clause); Cohn Law Firm v. YP Southeast Advertising & Publishing, LLC, No. W2014-01871-COA-R3-CV, 2015 WL 3883242 (Tenn. Ct. App. June 24, 2015) (applying Tennessee law and holding enforceable a Georgia forum selection clause in a contract that also contained a Georgia choice-of-law clause); Carfaro v. Blue Haven Pools Northeast, Inc., 2015 WL 1980705 (N.J. Super. Ct. App. Div. May 5, 2015) (applying New Jersey law and holding enforceable a Pennsylvania forum selection clause in a contract that also contained a Pennsylvania choice-of-law clause); Bad Ass Coffee Co. of Hawaii, Inc. v. Royal Aloha Intern., LLC, 2015 UT App 303, 365 P.3d 161 (Utah Ct. App. 2015) (applying Utah law for determining the enforceability of a Georgia forum selection clause allegedly obtained by fraud). 

n171. See Am. First Fed. Credit Union v. Soro, 359 P.3d 105 (Nev. 2015) (applying Nevada law and holding that a Utah forum selection clause was permissive rather than mandatory); Michaluk v. Credorax (USA), Inc., 164 So. 3d 719 (Fla. Dist. Ct. App. 2015) (applying Florida law and finding that a Maltese forum selection clause contained in a contract that also contained a Maltese choice-of-law clause was permissive rather than mandatory); Rieth Riley Const. Co. v. Ecopath Contracting LLC, No. 321562, 2015 WL 3604633 (Mich. Ct. App. June 9, 2015) (applying Michigan law and holding that an Arizona forum selection clause contained in a contract that also contained an Arizona choice-of-law clause was permissive rather than mandatory); Sheldon v. Pinto Technology Ventures, L.P., 477 S.W.3d 411 (Tex. App. 2015) (applying Texas law to define the scope of a Delaware forum selection clause contained in a contract that also contained a Delaware choice-of-law clause), reh'g en banc denied (Nov. 19, 2015), petition for review filed (Jan. 4, 2016); Richtek USA, Inc. v. uPI Semiconductor Corp., 195 Cal. Rptr. 3d 430 (Dist. Ct. App. 2015) (applying California law and finding that a Taiwanese forum selection clause was mandatory). 

n172. See In re Longoria, 470 S.W.3d 616 (Tex. App. 2015) (applying Texas law in holding a Mexican forum selection clause enforceable and defining its scope in a contract that also contained a Mexican choice-of-law clause); Tonerize, L.L.C. v. PLR IP Holdings, L.L.C., 2014 WL 7723568 (N.J. Super. Ct. App. Div. Feb. 2, 2015) (applying New Jersey law to determine the enforceability and scope of a Minnesota forum selection clause in a contract that also contained a Minnesota choice-of-law clause; the court upheld the forum selection clause, rejecting the plaintiffs' argument that, because the contract was allegedly procured by fraud, the forum selection clause was also the product of fraud), cert. denied, 221 N.J. 565 (2015). 

n173. See Carfaro v. Blue Haven Pools Northeast, Inc., 2015 WL 1980705, at 4 & n.6 (N.J. Super. Ct. App. Div., May 5, 2015) (noting that "counsel for the parties have stipulated before us that the law of New Jersey - as the state in which suit was filed - governs the question of whether the ... contract's forum selection provisions are enforceable" and that "in fact, none of the briefs cite Pennsylvania case law concerning the enforceability of forum selection clauses in that state"). 

n174. 136 S. Ct. 463 (2015). 

n175. See Imburgia v. DirecTV, Inc., 170 Cal. Rptr. 3d 190 (Ct. App. 2014), review denied (July 23, 2014), rev'd, Imburgia, 136 S. Ct. 463 (the decision discussed in the text); Murphy v. DirecTV, Inc., 724 F.3d 1218, 1226-28 (9th Cir. 2013) (discussed in Symeonides, 2014 Survey, supra note 1, at 345-47). 

n176. Imburgia, 136 S. Ct. at 469. 

n177. Id. at 466. 

n178. Cal. Civ. Code§§1751, 1781(a). 

n179. 113 P.3d 1100 (Cal. 2005) (discussed in Symeonides, 2005 Survey, supra note 1, at 324-27). 

n180. 563 U.S. 333 (2011) (discussed in Symeonides, 2011 Survey, supra note 1, at 324-27). 

n181. 9 U.S.C.§§2. 

n182. Concepcion, 563 U.S. at 348 (emphasis added). 

n183. Imburgia, 136 S. Ct. at 473 (Ginsburg, J., dissenting) (quoting Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 681 (2010)). 

n184. Id. at 468. 

n185. Id. at 469. 

n186. Id. at 470. 

n187. Id. at 471 (internal quotation marks omitted). 

n188. Id. at 468. 

n189. Id. at 473 (Ginsburg, J., dissenting). 

n190. Id. at 471. 

n191. Id. at 478. 

n192. 774 S.E.2d 1 (W. Va. 2015), cert. granted, No. 15-316, 2016 WL 763198 (U.S. Feb. 29, 2016). 

n193. Id. at 6 (emphasis added). 

n194. See Brown v. Genesis Healthcare Corp., 724 S.E.2d 250 (W. Va. 2011), rev'd sub nom. Marmet Health Care Ctr., Inc. v. Brown, 132 S. Ct. 1201 (2012). 

n195. Schumacher Homes, 774 S.E.2d at 5 (quoting Alan Scott Rau, Arbitral Power and the Limits of Contract: The New Trilogy, 22 Am. Rev. Int'l Arb. 435, 519 (2011)). 

n196. Id. at 13. 

n197. 190 Cal. Rptr. 3d 159 (Ct. App. 2015), reh'g denied (July 29, 2015), review denied (Sep. 16, 2015). 

n198. Id. at 165-66. 

n199. Id. at 169. 

n200. Id. at 173. 

n201. Id. 

n202. Id. at 173. See also id. at 173-74:

Without going to the expense of hiring a lawyer - not just any lawyer, but a Texas lawyer skilled in the intricacies of arbitrability, with the choice of law overlay presented here - and then having sufficient time to seek and obtain legal advice from that lawyer, [the plaintiff] was not in a position to make an informed assessment of the consequences of agreeing to delegate all questions concerning the "applicability, meaning, scope [or] enforceability" of the Agreement to the arbitrator. Although the delegation clause was not hidden from him, it might as well have been. 

n203. Id. at 174. 

n204. Id. at 176. 

n205. Id. at 177. 

n206. Id. at 185. 

n207. Id. at 180. 

n208. Id. at 179. 

n209. Id. at 180. 

n210. Id. at 185. 

n211. Id. 

n212. Id. (internal quotation marks omitted). In Henderson v. Watson, No. 64545, 2015 WL 2092073 (Nev. Apr. 29, 2015), an employment contract between a Nevada doctor and a Nevada medical corporation contained a California choice-of-law clause, an arbitration clause, and a delegation clause authorizing the arbitrator to determine the enforceability of the arbitration clause. Noting that no conflict existed between California and Nevada law, the Nevada Supreme Court applied California law and reversed the lower court's decision that had held the arbitration clause unenforceable as unconscionable. 

n213. No. W2014-02329-COA-R3-CV, 2015 WL 4880855 (Tenn. Ct. App. Aug. 14, 2015). 

n214. Id. at 2. 

n215. 805 F.3d 1279 (11th Cir. 2015). 

n216. For additional such cases from previous years, see Symeonides, Oxford Commentaries, supra note 99, at 484-86. For 2015 cases, see Navarette v. Silversea Cruises Ltd., 620 F. App'x 793 (11th Cir. 2015) (concerning a Filipino seaman and an arbitration clause mandating arbitration in the Philippines under Philippine law); Sierra v. Cruise Ships Catering and Services Int'l, N.V., No. 14-14940, 2015 WL 6874857 (11th Cir. 2015) (Italian arbitration clause and choice-of-law clause). 

n217. 46 U.S.C. § 30104. 

n218. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n.19 (1985) ("In the event the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party's right to pursue statutory remedies for antitrust violations, we would have little hesitation in condemning the agreement as against public policy."). 

n219. Convention on the Recognition and Enforcement of Foreign Arbitral Awards art. II, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 [hereinafter New York Convention]. 

n220. Escobar, 805 F.3d at 1286 (emphasis added). 

n221. See Bautista v. Star Cruises, 396 F.3d 1289, 1301-02 (11th Cir. 2005). 

n222. Escobar, 805 F.3d at 1287. 

n223. Id. 

n224. Id. 

n225. See New York Convention, supra note 219, arts. V(1)(e), VI. 

n226. See Symeonides, Oxford Commentaries, supra note 99, at 484-86. 

n227. Restatement of the U.S. Law of International Commercial Arbitration § 2-16 (Am. Law Inst., Tentative Draft No. 4, 2015). 

n228. Civil No. CCB-09-3106, 2014 WL 3894079 (D. Md. Aug. 7, 2014). 

n229. 783 F.3d 1010 (5th Cir. 2015), cert. denied, 136 S. Ct. 795 (2016). 

n230. Aggarao, 2014 WL 3894079, at 14. 

n231. Asignacion, 783 F.3d at 1014. 

n232. Id. 

n233. Id. at 1016. 

n234. Id. (internal quotation marks omitted). 

n235. Id. 

n236. 417 U.S. 506 (1974). 

n237. Asignacion, 783 F.3d at 1017 (quoting Scherk, 417 U.S. at 517 n.11). 

n238. Id. 

n239. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n.19 (1985). See quotation supra note 218. 

n240. Asignacion, 783 F.3d at 1021. 

n241. Bode & Grenier, LLP v. Knight, 808 F.3d 852, 855 (D.C. Cir. 2015). 

n242. Id. 

n243. Id. at 861-62. 

n244. Id. at 864. 

n245. Restatement (Second) of Conflict of Laws § 196 (Am. Law Inst. 1971). 

n246. 107 A.3d 1194 (Md. 2015). 

n247. Id. at 1197. 

n248. Md. Code, Lab. & Empl.§§3-501 to 3-509. 

n249. Cunningham, 107 A.3d at 1211 n.23. 

n250. See Erie Ins. Exchange v. Heffernan, 925 A.2d 636, 649 (Md. 2007) (discussed in Symeonides, 2007 Survey, supra note 1, at 246-49). 

n251. See American Motorists Ins. Co. v. ARTRA Group, Inc., 659 A.2d 1295, 1300 (Md. 1995) (discussed in Symeonides, 1995 Survey, supra note 1, at 183-86). 

n252. See Laboratory Corp. of America v. Hood, 911 A.2d 841, 848 (Md. 2006) (discussed in Symeonides, 2006 Survey, supra note 1, at 724-25); Bethlehem Steel Corp. v. G.C. Zarnas & Co., 498 A.2d 605 (Md. 1985). 

n253. See Hauch v. Connor, 453 A.2d 1207 (Md. 1983); Bishop v. Twiford, 562 A.2d 1238 (Md. 1989); Powell v. Erb, 709 A.2d 1294 (Md. 1998). 

n254. Cunningham, 107 A.3d at 1197. 

n255. Id. at 1203-04. 

n256. Id. at 1201. 

n257. Id. at 1215. 

n258. 2015 MT 233, 380 Mont. 298, 356 P.3d 441. 

n259. Mont. Code Ann.§§39-2-904(1)(b). 

n260. Harrington, 2015 MT 233, P 20, 380 Mont. at 304, 356 P.3d at 446. 

n261. 777 F.3d 415 (7th Cir. 2015) (decided under Indiana conflicts law). 

n262. Id. at 418. 

n263. See National Union Fire Ins. Co. of Pittsburgh, PA v. Standard Fusee Corp., 940 N.E.2d 810 (Ind. 2010) (discussed in Symeonides, 2010 Survey, supra note 1, at 381-83). 

n264. For extensive discussion of these approaches and cases applying them, see Symeonides, Oxford Commentaries, supra note 99, at 502-10. 

n265. Visteon Corp., 777 F.3d at 418. 

n266. Id. Judge Posner noted that this is an "implication ... given the uniform-contract-interpretation approach." Id. (emphasis added). One could argue that the site-specific approach does not carry such an implication because under that approach, the court treats each risk as if it were insured by a separate policy. 

n267. Id. 

n268. Id. 

n269. Id. at 419. 

n270. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487 (1941). 

n271. For other cases involving insurance conflicts, see, e.g., Bayswater Development LLC v. Admiral Ins. Co., 126 A.D.3d 490 (N.Y. App. Div. 2015) (applying Florida law and denying coverage for damage caused by the use of defective "Chinese Drywall" in Florida houses), leave to appeal denied, 26 N.Y.3d 905 (2015); Chi. Ins. Co. v. Paulson & Nace, PLLC, 783 F.3d 897 (D.C. Cir. 2015) (applying D.C. law and denying coverage for legal malpractice under an insurance contract between a D.C. law firm and an Illinois insurer). Among the numerous cases involving automobile insurance contracts and suits between insureds and their insurers, see, e.g., Saveraid v. State Farm Ins. Co., 597 F. App'x 492 (10th Cir. 2015) (decided under New Mexico conflicts law); Ward v. Nationwide Assurance Co., No. 2012-CA-000809-MR, 2014 WL 7339238 (Ky. Ct. App. Dec. 24, 2014), reh'g denied (Feb. 12, 2015), review denied (Oct. 21, 2015). Both cases applied the pro-insurer law of the insured's home state rather than the pro-insured law of the state of the accident. For a case reaching the same result in a case involving a suit by an accident victim against the tortfeasor's insurer, see Rios v. Pierce, 2014-0730 (La. App. 4 Cir. 1/7/15), 158 So. 3d 856, writ denied, 2015-0256 (La. 4/17/15), 168 So. 3d 404. For a case applying the law of the accident state, see Jones v. Gov't Emps. Ins. Co., 2015-0275 (La. App. 4 Cir. 12/16/15), 183 So. 3d 636, writ denied, 2016-0101 (La. 3/4/16), 2016 WL 1045354. 

n272. For citations and discussion, see Symeonides, Oxford Commentaries, supra note 99, at 207, 215, 220-21. 

n273. Troxel v. A.I. duPont Inst., 636 A.2d 1179, 1181 (Pa. Super. Ct. 1994), appeal denied, 647 A.2d 903 (Pa. 1994). 

n274. Bledsoe v. Crowley, 849 F.2d 639, 647 (D.C. Cir. 1988) (Williams, J., concurring). 

n275. Warriner v. Stanton, 475 F.3d 497, 504 (3d Cir. 2007) (quoting D. Cavers, The Choice-of-Law Process 146-47 (1965)). 

n276. 2015-NMCA-069, 352 P.3d 666, cert. granted (June 19, 2015). 

n277. See id. P 10, 352 P.3d at 670 ("The place of the wrong ... is the location of the last act necessary to complete the injury.") (alteration in original) (quoting Torres v. State, 1995-NMSC-025, P 13, 119 N.M. 609, 613, 894 P.2d 386, 390 (N.M. 1995)). 

n278. Restatement of Conflict of Laws § 377 (Am. Law Inst. 1934). 

n279. Montano, 352 P.3d at 670. 

n280. That was the only hospital in the patient's vicinity for which her insurer would provide coverage. The patient continued traveling to the same hospital for follow-up treatment for six years following the surgery, when another doctor discovered that the surgery was defective and performed corrective surgery. 

n281. Montano, 352 P.3d at 668. 

n282. 117 A.3d 200 (N.J. App. Div. 2015). 

n283. Id. at 214. 

n284. Id. at 219. 

n285. See id. at 220 ("Since an issue-by-issue approach is tenable, there is no reason to believe that a defendant-by-defendant approach is inherently untenable."). 

n286. Id. at 219 

n287. Id. at 217. 

n288. Id. "Alternatively," said the court, if the child's birth itself were "viewed as the 'injury' - particularly with respect to the child's wrongful life claim - then New York [was] also the place of injury because [the child] was born in that state." Id. 

n289. Id. at 218. The court added, "If, hypothetically, [the child] Abigail had been conceived while plaintiffs were on vacation in Hawaii and there were no other relevant contacts with that state, Hawaii law surely would not govern plaintiffs' claims." Id. 

n290. Id. 

n291. See id. 

n292. Id. (quoting Blakesley v. Wolford, 789 F.2d 236, 241 (3d Cir.1986)). 

n293. Id. at 222 (emphasis added). 

n294. Id. The court continued as follows:

Patients frequently travel across state lines to be treated by a physician who is a surgeon or specialist because of that individual's expertise. Patients also may be drawn to a hospital in another state for the same reasons, or may have an emergency condition while they are in the state temporarily. In such circumstances, there should be a strong presumption that the laws of the state of licensure and treatment govern the patient's care in that state, subject to concerns of feasibility and fairness.

Id. at 222-23. 

n295. Id. at 237. 

n296. Id. at 236. 

n297. Id. at 237. 

n298. Id. at 242-43. 

n299. Id. at 243. 

n300. Id. at 248. 

n301. 777 S.E.2d 402 (S.C. Ct. App. 2015), reh'g denied (Oct. 23, 2015). 

n302. Id. at 405. 

n303. Id. at 408 (Few, C.J., concurring). 

n304. See id. at 409:

That duty of due care arose under South Carolina law. The fact that one of the services [the attorney] eventually performed for [the plaintiff] involved a proceeding before the North Carolina Industrial Commission does not automatically transform the entire attorney-client relationship into one arising under North Carolina law, and neither does the choice of law provision in the fee agreement that covered only that proceeding. 

n305. 801 F.3d 1066 (9th Cir. 2015) (decided under Arizona conflicts law), petition for cert. filed, 84 U.S.L.W. 3338 (U.S. Dec. 4, 2015), docketed (U.S. Dec. 8, 2015) (No. 15-734). 

n306. For another class action for legal malpractice, see Johnson v. Nextel Communications Inc., 780 F.3d 128 (2d Cir. 2015) (decided under New Jersey conflicts law; reversing the trial court's decision granting class certification, after concluding that the claims of all class plaintiffs against a New York law firm would not be governed by New York law). 

n307. Restatement (Second) of Conflict of Laws § 145 (Am. Law Inst. 1971). 

n308. Bobbitt, 801 F.3d at 1070. 

n309. Id. 

n310. Id. at 1071. 

n311. Id. at 1072. 

n312. Id. at 1071. 

n313. Id. 

n314. Id. at 1071-72 (alteration in original) (quoting Restatement (Second) of Conflict of Laws § 145(2) cmt. e). 

n315. 36 N.E.3d 1181 (Ind. Ct. App. 2015). 

n316. 805 N.E.2d 798 (Ind. 2004). 

n317. Rexroad, 36 N.E.3d at 1184. 

n318. Id. (second emphasis added). 

n319. Id. 

n320. For a discussion of depecage and a critique of Indiana's overly broad rejection of it in Simon, see Symeon C. Symeonides, Issue-by-Issue Analysis and Depecage in Choice of Law: Cause and Effect, 45 U. Tol. L. Rev. 751 (2014). 

n321. Rexroad, 36 N.E.3d at 1185. 

n322. In Rider v. Young Men's Christian Association of Greater Kansas City, 460 S.W.3d 378 (Mo. Ct. App. 2015), reh'g and/or transfer denied (March 3, 2015), transfer denied (May 26, 2015), a case arising from a slip and fall injury in the defendant's Kansas premises, a Missouri court refused to apply Kansas's cap on non-economic damages and allowed unlimited damages under Missouri law because both the plaintiff and the defendant owner of the premises were Missouri domiciliaries, reasoning that "where the conflict involves a rule of recovery or question of compensation, the domicile of the parties is the most significant contact." Id. at 388 (internal quotation marks omitted). 

n323. 2015 IL App (1st) 132905, 26 N.E.3d 448. 

n324. Restatement (Second) of Conflict of Laws§§145-46 (Am. Law Inst. 1971). 

n325. 2015 IL App (1st) 132905, P 19, 26 N.E.3d at 454 (quoting Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 165, 879 N.E.2d 893, 904 (2007)). 

n326. Id. at P 29, 26 N.E.3d at 456. For another Illinois case arising out of an Indiana traffic accident and applying Indiana law, see Kovera v. Envirite of Illinois, Inc., 2015 IL App (1st) 133049, 26 N.E.3d 936, appeal denied, 32 N.E.3d 674 (table) (Ill. 2015). 

n327. 2015 WY 116, 357 P.3d 723 (Wyo. 2015). 

n328. Id. PP 66, 68, 357 P.3d at 741-742. 

n329. 116 A.3d 99 (Pa. Super. Ct. 2015). 

n330. Id. at 111 (internal quotation marks and brackets removed). 

n331. Id. 

n332. 267 A.2d 854 (Pa. 1970). 

n333. McDonald, 116 A.3d at 111 (internal quotation marks omitted). 

n334. 363 P.3d 587 (Wash. 2015) (en banc). 

n335. Wash. Rev. Code § 19.86. 

n336. 363 P.3d at 591. 

n337. Id. at 592. 

n338. 190 Cal. Rptr. 3d 411 (Ct. App. 2015), as modified on denial of reh'g (Aug. 21, 2015), review denied (Nov. 10, 2015). 

n339. Cal. Civ. Code § 1750. 

n340. Rutledge, 190 Cal. Rptr. 3d at 431 (quotation marks omitted). 

n341. According to some sources, the following states have not abolished this action: Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. However, this author has not been able to locate recent cases from states other than Mississippi, North Carolina, South Dakota, and Utah. 

n342. 2013-IA-01479-SCT, 170 So. 3d 454 (Miss. 2015), reh'g denied (Aug. 13, 2015). 

n343. Miss. Code Ann. § 13-3-57. 

n344. Nordness, 170 So. 3d, at 457. 

n345. U.S. Const. amend. XIV, § 1. 

n346. Id. at 465 (Randolph, J., dissenting) (emphasis added). 

n347. 134 S. Ct. 1115 (2014) (discussed in Symeonides, 2014 Survey, supra note 1, at 303). 

n348. Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945). 

n349. Walden, 134 S. Ct. at 1122 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 528 (1985)). 

n350. Id. See also id. at 1123 ("[A] defendant's relationship ... third party, standing alone, is an insufficient basis for jurisdiction."). 

n351. Nordness v. Faucheux, 2013-IA-01479-SCT, 170 So. 3d 454, 460 (Miss. 2015), reh'g denied (Aug. 13, 2015). 

n352. Id. at 461. 

n353. Id. 

n354. Id. at 459. 

n355. This Survey does not cover forum non conveniens cases unless they contain significant discussion of choice-of-law issues. 

n356. In Salebuild, Inc. v. Flexisales, Inc., No. 14-15085, 2015 WL 9584784 (9th Cir. Dec. 31, 2015), the trial court had dismissed the action on FNC grounds, after concluding that the plaintiffs were foreign. The Ninth Circuit reversed, pointing out that one of the plaintiffs was a Delaware corporation, and that "the presence of a foreign co-plaintiff does not lessen the deference owed a domestic plaintiff." Id. at 1. The appellate court also found that the trial court had improperly weighted (1) the private interest factors, because it had compared the contacts of the foreign country with those of the forum state of Nevada, rather than those of the United States as a whole (see id.), and (2) the public interest factors, because it had "failed to consider Nevada's significant interest in providing a forum for those harmed by the actions of its corporate citizens," i.e., the defendant. Id. at 2 (internal quotation marks omitted). 

n357. 2014 IL App (1st) 140410, 30 N.E.3d 490 (2015), appeal denied, 39 N.E.3d 1001 (table) (Ill. 2015). 

n358. Restatement (Second) of Conflict of Laws § 150(2) (Am. Law Inst. 1971). 

n359. Doe, 2014 IL App (1st) 140410, P 42, 30 N.E.3d at 497. 

n360. Id. P 43, 30 N.E.3d at 497. 

n361. 176 So. 3d 273 (Fla. Dist. Ct. App. 2015), reh'g denied (Oct. 06, 2015), review denied, No. SC15-2071, 2016 WL 1317676 (Fla. Apr. 5, 2016). 

n362. Id. at 281. 

n363. Id. at 283 (Shepherd, C.J., concurring specially). 

n364. 472 S.W.3d 744 (Tex. App. 2015). 

n365. Id. at 766. 

n366. Id. at 772. 

n367. 777 F.3d 847 (7th Cir. 2015), cert. denied, 135 S. Ct. 2817 (2015). 

n368. 793 F.3d 1059 (9th Cir. 2015). 

n369. 350 P.3d 392 (Nev. 2015). 

n370. No. 01-14-00207-CV, 2015 WL 5076299 (Tex. App. Aug. 27, 2015). 

n371. 604 F. App'x 16 (2d Cir. 2015). 

n372. See also Nithyananda Meditation Acad. v. Rao, Nos. 317651, 317659, 317667, 2015 WL 1396465 (Mich. Ct. App. Mar. 26, 2015) (Indian defamation); Moreno v. LG Electronics, USA Inc., 800 F.3d 692 (5th Cir. 2015) (employment accident in Mexico). 

n373. 778 F.3d 545 (6th Cir. 2015), reh'g denied (Mar. 18, 2015). 

n374. Id. at 547. 

n375. 28 U.S.C. § 157(b)(5) provides:

The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose, as determined by the district court in which the bankruptcy case is pending. 

n376. 28 U.S.C. § 1404(a) provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." 

n377. See Van Dusen v. Barrack, 376 U.S. 612 (1964). 

n378. See Ferens v. John Deere Co., 494 U.S. 516 (1990). 

n379. Dow Corning (Sutherland), 778 F.3d at 550. 

n380. Id. at 550-51 (internal quotation marks and citations omitted). 

n381. Id. at 551-52. The court remanded the case to the district court for determining when the diagnosis occurred. 

n382. 617 F. App'x 493 (6th Cir. 2015). 

n383. Id. at 495 (quoting In re Miller, 513 F. App'x 566, 572 (6th Cir. 2013)) (observing that the federal circuits are split on whether federal courts exercising bankruptcy jurisdiction should apply federal choice-of-law rules or those of the forum state). 

n384. Id. (quoting Hall v. Gen. Motors Corp., 582 N.W.2d 866, 868 (Mich. Ct. App. 1998)). 

n385. The Michigan case is Hall v. Gen. Motors Corp., 582 N.W.2d 866 (cited supra note 384). 

n386. See Standard Fire Ins. Co. v. Ford Motor Co., 723 F.3d 690 (6th Cir. 2013). 

n387. Symeonides, 2013 Survey, supra note 1, at 254. 

n388. Dow Corning Corp. (Gatza) v. DCC Litigation Facility, Inc., 617 F. App'x 493, 495 (6th Cir. 2015). 

n389. 2014-CA-00579-SCT, 2015 WL 5730705 (Miss. Oct. 1, 2015), reh'g denied (Jan. 7, 2016). 

n390. Id. at 5. 

n391. Id. 

n392. See id. at 6. ("Article IV, Section 1, of the United States Constitution requires Mississippi courts to accord "full faith and credit" to ... Florida's organization and dissolution laws ... ."). 

n393. 786 F.3d 491 (6th Cir. 2015). 

n394. See supra note 376 and accompanying text. 

n395. 28 U.S.C. § 1406(a) provides: "The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 

n396. See Wahl, 786 F.3d at 498-99:

[The plaintiff's] case more closely resembles a transfer under § 1406(a) than a typical transfer under § 1404(a). Like transfers under § 1406(a), [the plaintiff's] suit was transferred out of the Northern District of Ohio because that district was not a proper venue in her case; for that reason, the direct-filing order contemplates eventual transfer to a proper venue. 

n397. Tenn. Code Ann. § 29-28-103. 

n398. Restatement (Second) of Conflict of Laws § 146 (Am. Law Inst. 1971). 

n399. See Wahl, 786 F.3d at 499-500 ("Tennessee has a far greater interest in a lawsuit by one of its own injured citizens against a drug manufacturer than does New Jersey."). 

n400. Ohio Const. art. I, § 16. 

n401. Wahl, 786 F.3d at 500 (emphasis added) (quoting Restatement (Second) of Conflict of Laws § 90 cmt. a). 

n402. 2015 WL 4726495 (N.J. Super. Ct. App. Div. Aug. 11, 2015), cert. granted, 127 A.3d 701 (table) (N.J. 2015). 

n403. 962 A.2d 453 (N.J. 2008) (discussed in Symeonides, 2008 Survey, supra note 1, at 272-75). 

n404. 998 A.2d 543 (N.J. Super. Ct. App. Div. 2010) (discussed in Symeonides, 2010 Survey, supra note 1, at 333-35). 

n405. See Cornett v. Johnson & Johnson, 48 A.3d 1041 (N.J. 2012) (discussed in Symeonides, 2012 Survey, supra note 1, at 282). 

n406. McCarrell, 2015 WL 4726495, at 16. 

n407. Id. 

n408. Id. at 18. 

n409. 113 A.3d 1045 (Del. 2015). 

n410. Id. at 1049. The court quoted counsel as stating in oral arguments: "When you have the choice of more than one forum ... you pick the best forum that you think will benefit your clients." Id. at 1049 n.5 (alteration in original). 

n411. Id. at 1052. 

n412. Restatement (Second) of Conflict of Laws§§146, 175 (Am. Law Inst. 1971). 

n413. Bell Helicopter, 113 A.3d at 1054-55. 

n414. Id. at 1056. 

n415. Id. 

n416. Id. at 1057. 

n417. See id. at 1058-59. 

n418. See id. at 1058. 

n419. See Am. Nat'l Fire Ins. Co. v. Farmers Ins. Exch., 927 P.2d 186 (Utah 1996). 

n420. See Phillips v. Gen. Motors Corp., 2000 MT 55, 298 Mont. 438, 995 P.2d 1002. 

n421. See Gen. Motors Corp. v. Eighth Judicial Dist., 134 P.3d 111 (Nev. 2006). 

n422. See P.V. v. Camp Jaycee, 962 A.2d 453 (N.J. 2008). 

n423. 135 S. Ct. 2584 (2015). As expected, this case has already generated extensive literature. See Symposium, Perspectives on Marriage Equality and the Supreme Court, 84 Fordham L. Rev. 1 (2015) (containing articles by Elizabeth B. Cooper, Clare Huntington, Joseph Landau, Ethan J. Leib, R.A. Lenhardt, and Catherine Powell); Symposium on Obergefell, 6 Cal. L. Rev. Circuit 107 (2015) (containing articles by Nan D. Hunter, Yuvraj Joshi, Serena Mayeri, Peter Nicolas, Cynthia Godsoe, and Suzanne B. Goldberg); Leonore Carpenter & David S. Cohen, A Union Unlike Any Other: Obergefell and the Doctrine of Marital Superiority, 104 Geo. L.J. Online 124 (2015); William N. Eskridge Jr., The Marriage Equality Cases and Constitutional Theory, 2014-2015 Cato Sup. Ct. Rev. 111; Kenji Yoshino, A New Birth of Freedom?: Obergefell v. Hodges, 129 Harv. L. Rev. 147 (2015). 

n424. U.S. Const. amend. XIV, § 1. 

n425. Obergefell, 135 S. Ct. at 2601. 

n426. Id. at 2600. 

n427. Id. at 2602. See also id. at 2601-02:

By virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation's society. 

n428. Id. at 2604. 

n429. Id. at 2590-91. 

n430. 28 U.S.C. § 1738C ("No State ... shall be required to give effect to any public act, record, or judicial proceeding of any other State ... respecting a relationship between persons of the same-sex that is treated as a marriage under the laws of such other State ... or a right or claim arising from such relationship."). 

n431. Obergefell, 135 S. Ct. at 2607. 

n432. Id. 

n433. Id. 

n434. U.S. Const. art. IV, § 1. 

n435. In contrast, the Parental Kidnapping Prevention Act (PKPA), enacted in 1980, and the Full Faith and Credit for Child Support Orders Act (FFCCSOA), enacted in 1994, require states to enforce child custody and child support judgments of sister states. See 28 U.S.C.§§1738A-1738B. 

n436. Thomas v. Washington Gas Light Co., 448 U.S. 261, 272 (1980). 

n437. Id. 

n438. In a pre-Obergefell case, a lower court opined that "Congress' actions in adopting DOMA are exactly what the Framers envisioned... . [They are] an appropriate exercise of its power to regulate conflicts between the laws of two different States, in this case, conflicts over the validity of same-sex marriages." Wilson v. Ake, 354 F. Supp. 2d 1298, 1303 (M.D. Fla. 2005). In Brandon-Thomas v. Brandon-Thomas, 163 So. 3d 644 (Fla. Dist. Ct. App. 2015), another pre-Obergefell case decided ten years after Wilson, a Florida appellate court held that the lower court's refusal, under Florida's mini-DOMA, to entertain a divorce petition to dissolve a Massachusetts same-sex marriage violated the Due Process and Equal Protection clauses of the federal Constitution. 

n439. See La. Stat. Ann. § 9:307. For a discussion of the Louisiana version, see Katherine Shaw Spaht & Symeon C. Symeonides, Covenant Marriage and the Law of Conflicts of Laws, 32 Creighton L. Rev. 1085 (1999). 

n440. 180 So. 3d 16 (Ala. Civ. App. 2015). 

n441. Id. at 17. 

n442. Id. at 19 (quoting Williams v. North Carolina, 325 U.S. 226, 229-30 (1945)). 

n443. Id. (quoting Restatement (Second) of Conflict of Laws § 285 (Am. Law Inst. 1971)). 

n444. Id. (citing Spaht & Symeonides, supra note 439, at 1109 n.127). Katherine Spaht, the first author of the article cited by the court, was the drafter of the covenant law; however, this particular "concession" was made by the undersigned author, who wrote the choice-of-law part of the article but was not involved with the covenant law. That part of the article predicted this particular outcome and attempted to identify the very few scenarios in which other states should defer to Louisiana covenant law, while also explaining why they would not do so, given the American status quo of merging jurisdiction and choice of law in divorce cases. In a subsequent, outstanding article, Peter Hay explained with characteristic eloquence and simplicity not only why other states would not, but also they why should not do so. See Peter Hay, The American "Covenant Marriage" in the Conflict of Laws, 64 La. L. Rev. 43 (2003). 

n445. Blackburn, 180 So. 3d at 19 (alteration in original) (emphasis added) (quoting La. Civ. Code art. 3521). 

n446. For the record, the word "only" was not included in the Civil Code article that this author drafted in 1988. Instead, this author proposed an article stating, "When one of the parties is domiciled in this state, a court of this state may grant a divorce or separation for grounds provided by the law of this state" (emphasis added). Here is the rest of the story, as told in a 1999 publication:

As the italicized word "may" indicates, this article was intended to merely permit, rather than require, the application of the law of the forum in cases in which the forum's jurisdiction was based on domicile. Furthermore, in cases in which jurisdiction was based on lesser grounds, as in the case of jurisdiction by consent, the proposed article did not affirmatively authorize the application of forum law. Rather, these cases were relegated to the residual article on matters of status, which requires a full-fledged choice-of-law analysis. This scheme, however, was objected to by trial lawyers who argued that it would be "unthinkable" for the courts of Louisiana to apply the divorce law of another state. The fact that in the rest of the world courts routinely apply foreign divorce law was of little persuasive value. Thus, the trial lawyers' argument prevailed and the article was amended to provide that "[a] court of this state may grant a divorce or separation only for grounds provided by the law of this state." Ten years later, this shortsighted article poses severe obstacles to any appeal by the State of Louisiana for other states to respect its covenant-marriage divorce law.

Spaht & Symeonides, supra note 439, at 1107 (footnotes omitted). 

n447. See Hay, supra note 444, at 63-68; Spaht & Symeonides, supra note 439, at 1106-08. 

n448. 467 S.W.3d 539 (Tex. App. 2015). 

n449. Id. at 544. 

n450. 947 A.2d 489 (2008) (discussed in Symeonides, 2008 Survey, supra note 1, at 312-13). 

n451. See Fall v. Eastin, 215 U.S. 1 (1909). 

n452. U.S. Const. art. IV, § 1. 

n453. No. 1 CA-CV 13-0752, 2015 WL 1516596 (Ariz. Ct. App. Apr. 2, 2015). 

n454. No. E2014-01683-COA-R3-CV, 2015 WL 5692547 (Tenn. Ct. App. June 29, 2015). 

n455. Nos. A-5405-12T3, A-1040-13T31, 2015 WL 5009119 (N.J. Super. Ct. App. Div. Aug. 24, 2015). 

n456. 2015 Guam 5. 

n457. See Kirilenko v. Kirilenko, No. 2014-CA-000615-MR, 2015 WL 4967256 (Ky. Ct. App. Aug. 21, 2015), reh'g denied (Oct. 12, 2015), discretionary review granted (Ky. Mar. 9, 2016). 

n458. See Dahl v. Dahl, Nos. 20100683, 20111077, 2015 UT 79, 2015 WL 5098249 (Utah Aug. 27, 2015), cert. denied, 136 S. Ct. 239 (2015). 

n459. See Whatley v. Smart, 2014-1276 (La. App. 4 Cir. 7/8/15), 174 So. 3d 127. 

n460. See Succession of Sylvester, 2015-125 (La. App. 5 Cir. 12/9/15), 181 So. 3d 250, reh'g denied (Jan. 25, 2016). 

n461. Section 604 of the Unif. Interstate Family Support Act (Unif. Law Comm'n 2008) provides as follows:

(a) Except as otherwise provided in subsection (d), the law of the issuing state or foreign country governs:
[sp'(a)'+n](1) the nature, extent, amount, and duration of current payments under a registered support order;
(2) the computation and payment of arrearages and accrual of interest on the arrearages under the support order; and
(3) the existence and satisfaction of other obligations under the support order.
(b) In a proceeding for arrears under a registered support order, the statute of limitation of this state, or of the issuing state or foreign country, whichever is longer, applies.
(c) A responding tribunal of this state shall apply the procedures and remedies of this state to enforce current support and collect arrears and interest due on a support order of another state or a foreign country registered in this state. 

n462. 28 U.S.C. § 1738B(h)(2) (emphasis added). 

n463. 2015 IL App (2d) 140847, 38 N.E.3d 50, as modified on denial of reh'g (Aug. 14, 2015). 

n464. 467 S.W.3d 767 (Ky. 2015). 

n465. In In re Ball, 123 A.3d 719 (N.H. 2015), the spouses agreed to modify the duration of the obligation imposed by a Massachusetts order after they and the children moved to New Hampshire. The New Hampshire Supreme Court held that the agreement was permissible. 

n466. No. 72527-1-I, 2015 WL 5690575 (Wash. Ct. App. Sept. 28, 2015). 

n467. Enacted as Wash. Rev. Code § 26.21A.515. See supra note 461. 

n468. In re Paternity of M.H., 2015 WL 5690575, at 3 (emphasis added). 

n469. See id. 

n470. Id. at 3. 

n471. 347 P.3d 1033 (Kan. Ct. App. 2015). 

n472. 2015 COA 134, 361 P.3d 1110 (Colo. App. 2015). 

n473. Restatement (Third) of Foreign Relations Law of the United States §§421, 482, 486 (Am. Law Inst. 1987). 

n474. For a case denying recognition to a Quebec judgment under UIFSA because Quebec's assertion of jurisdiction was not consistent with American due process standards, see Lescano v. Urena, 2014 WL 8382903 (N.J. Super. Ct. App. Div. Mar. 31, 2015). 

n475. 117 A.3d 660 (Md. Ct. Spec. App. 2015). 

n476. See Md. Code Ann., Fam. Law§§10-301 to 10-359.2 (UIFSA); Md. Code Ann., Fam. Law§§9.5-101 to 9.5-318 (UCCJEA). For 2015 cases applying the UCCJEA, see, e.g., In re A.A., 354 P.3d 1205 (Kan. Ct. App. 2015); P.S.K. v. D.K.K., No. 563 WDA 2015, 2015 WL 8192727 (Pa. Super. Ct. Dec. 8, 2015); A.M.W. v. N.P., No. 1261 MDA 2014, 2015 WL 7572676 (Pa. Super. Ct. Feb. 12, 2015). 

n477. Cal. Civ. Code § 986(a). 

n478. 784 F.3d 1320 (2015), cert. denied, 36 S. Ct. 795 (2016). 

n479. Id. at 1323. 

n480. 347 P.3d 41 (Wash. 2015). 

n481. The debtors abandoned any claim of homestead to their Washington home, in which they held no equity. 

n482. See Wieber, 347 P.3d at 42-43. 

n483. 2015-Ohio-3819, 42 N.E.3d 304 (Ct. App. 2015). 

n484. 796 F.3d 281 (3d Cir. 2015) (decided under Pennsylvania conflicts law). 

n485. 807 F.3d 492 (2d Cir. 2015) (decided under New York conflicts law). 

n486. 808 F.3d 1158 (7th Cir. Dec. 22, 2015). 

n487. 2015 UT 34, 345 P.3d 719 (Utah 2015). 

n488. 2015 UT 35, 345 P.3d 709 (Utah 2015). 

n489. No. 1140595, 2015 WL 5511249 (Ala. Sept. 18, 2015), stay granted sub nom. Smith v. E.L., 136 S. Ct. 701 (2015), cert. granted and judgment rev'd and remanded sub nom. V.L. v. E.L., 136 S. Ct. 1017 (2016). 

n490. The two women, both Alabama domiciliaries, had a relationship that lasted from 1995 to 2011. During that time, E.L. gave birth to three children conceived through assisted-reproduction technology. In 2007, E.L. and V.L. rented a house in Georgia and lived there sporadically to meet the six-month jurisdictional requirement of Georgia law, before V.L. filed a petition to adopt the children. E.L. consented to the adoption and the Georgia court issued the adoption decree. When the partners ended their relationship in 2011, E.L. prevented V.L. from having access to the children, prompting V.L. to seek recognition of the Georgia decree in Alabama. 

n491. After completion of this Article, the U.S. Supreme Court reversed the Alabama judgment. See supra note 489. The Supreme Court's decision will be discussed in next year's Survey. 

n492. 135 S. Ct. 2584 (2015) (discussed supra Part II.E.1). 

n493. Ga. Code Ann. § 9-11-60(f). 

n494. Ga. Code Ann. § 19-8-18(e) (emphasis added). 

n495. Ga. Code Ann. § 19-8-18(b). 

n496. In the court's words: "It is undisputed that a termination of E.L.'s parental rights did not occur in this case; thus, it would appear to be undisputed that the Georgia court erred by entering the Georgia judgment by which V.L. became an adoptive parent of the children." Ex parte E.L., No. 1140595, 2015 WL 5511249, at 9 (Ala. Sept. 18, 2015), stay granted sub nom. Smith v. E.L., 136 S. Ct. 701 (2015), cert. granted and judgment rev'd and remanded sub nom. V.L. v. E.L., 136 S. Ct. 1017 (2016). 

n497. Id. at 10. 

n498. Id. at 14 (Shaw, J., dissenting). 

n499. Id. at 13. 

n500. Id. 

n501. 162 So. 3d 172 (Fla. Dist. Ct. App. 2015), review denied, 177 So. 3d 1263 (table) (2015). 

n502. U.S. Const. art. IV, § 1. 

n503. 405 U.S. 645 (1972). 

n504. Among other cases involving recognition of sister-state civil judgments, the following are worth noting: Vera v. Republic of Cuba, 802 F.3d 242 (2d Cir. 2015) (involving efforts to enforce a default judgment against Cuba); Hess v. Patrick, 164 So. 3d 19 (Fla. Dist. Ct. App. 2015) (applying Florida's statute of limitations to an Arizona judgment), review granted (Fla. Nov. 9, 2015); Frasure v. Frasure, No. 2 CA-CV 2014-0149, 2015 WL 5658734 (Ariz. Ct. App. Sept. 25, 2015) (applying Arizona's statute of limitations to a Utah judgment); Roman v. Great American Financial Services, No. 2014-CA-000277-MR, 2015 WL 226086 (Ky. Ct. App. Jan. 16, 2015) (enforcing an Iowa default judgment), review denied (Sept. 16, 2015); Ewing Oil, Inc. v. John T. Burnett, Inc., 117 A.3d 748 (N.J. Super. Ct. App. Div. 2015) (enforcing a Maryland confessed judgment). 

n505. 192 Cal. Rptr. 3d 49 (Ct. App. 2015), reh'g denied (Sept. 16, 2015), review denied (Nov. 10, 2015). 

n506. Id. at 52 (internal quotation marks and citations omitted). In State v. Barrett, 2015 MT 303, 381 Mont. 299, 358 P.3d 921, the Montana Supreme Court framed the question in a similar fashion. In applying a Montana statute that made a DUI violation a felony, the court counted all three of the defendant's DUI convictions in Idaho, even though, under a plea agreement, an Idaho court had amended the third offense into a second offense. For other cases giving effect to criminal convictions by courts of sister states, see State v. Evans, 343 P.3d 122 (Kan. Ct. App. 2015) (holding that the defendant's guilty pleas in Missouri, along with successful completion of suspended imposition sentences, constituted "convictions" under Kansas law that could serve as predicate offenses); Williams v. Cook Cty. Officers Electoral Bd., 2015 IL App (1st) 150568, 35 N.E.3d 82, appeal denied, 32 N.E.3d 679 (table) (Ill. 2015) (holding that a candidate's Indiana conviction for aiding and abetting a forgery disqualified him from seeking and holding public office in Illinois). 

n507. Unif. Foreign Money-Judgments Recognition Act § 4(a)(1) (Unif. Law. Comm'n 1962); Unif. Foreign-Country Money Judgments Recognition Act § 4(b)(1) (Unif. Law Comm'n 2005). 

n508. Unif. Foreign-Country Money Judgments Recognition Act § 4(c)(7). 

n509. 804 F.3d 373 (5th Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3451 (U.S. Feb 16, 2016), docketed (U.S. Feb. 17, 2016) (No. 15-1033). 

n510. Id. at 381. 

n511. Id. at 381. 

n512. Id. at 387 (internal quotation marks omitted). 

n513. Id. at 381. 

n514. Id. at 382. The court also quoted a statement from the USAID report that the King's government "has made judicial reform one of its key objectives" and "is making strides" toward building a state reliant on the rule of law, and a statement from the State Department report that the government had implemented reforms "intended to increase judicial independence and impartiality." Id. 

n515. See Bank Melli Iran v. Pahlavi, 58 F.3d 1406 (9th Cir. 1995). 

n516. See Bridgeway Corp. v. Citibank, 201 F.3d 134 (2d Cir. 2000). 

n517. DeJoria, 804 F.3d at 383. In United States v. Shkambi, 620 F. App'x 260 (5th Cir. 2015), cert. denied, 136 S. Ct. 515 (2015), the defendant was convicted in the United States of conspiracy to distribute cocaine and heroin. He challenged his conviction on the ground the court had abused its discretion in admitting evidence of his previous Albanian heroin conviction, arguing that the Albanian judicial system did not meet minimum standards of procedural fairness. The court rejected the argument, finding credible the contrary evidence presented by the prosecution's expert witnesses. 

n518. The other six states are Florida, Georgia, Idaho, Massachusetts, North Carolina, and Ohio. In Georgia and Massachusetts, reciprocity is a mandatory ground for non-recognition, while in the other states it is discretionary. 

n519. No. N13J-02847, 2015 WL 2265473 (Del. Super. Ct. May 05, 2015), aff'd, 127 A.3d 399 (table) (Del. 2015). 

n520. See Symeonides, 2014 Survey, supra note 1, at 379-81 (discussing Standard Chartered Bank v. Ahmad Hamad Al Gosaibi & Bros. Co., 99 A.3d 936 (Pa. Super. Ct. 2014), appeal denied, 108 A.3d 36 (Pa. 2015), and Ahmad Hamad Al Gosaibi & Bros. Co. v. Standard Chartered Bank, 98 A.3d 998 (D.C. 2014)). 

n521. Del. Code Ann. tit. 10, § 4811. 

n522. Ryckman, 2015 WL 2265473, at 4. 

n523. The court distinguished this case from Ahmad, 98 A.3d 998, in which the state that recognized the foreign judgment (New York) did not have personal jurisdiction over the judgment debtor. 

n524. Ryckman, 2015 WL 2265473, at 7. 

n525. 182 Cal. Rptr. 3d 264 (Ct. App. 2015), review denied (Apr. 29, 2015). 

n526. Cal. Civ. Proc. Code § 1715. 

n527. In AVR Communications, Ltd. v. American Hearing Systems, Inc., 868 N.W.2d 290 (Minn. Ct. App. 2015), a Minnesota trial court applied Minnesota's statutory post-judgment interest rate of ten percent from the date of a Minnesota judgment recognizing an Israeli judgment that confirmed an Israeli arbitration award, which in turn imposed a four percent interest. The appellate court rejected the debtor's argument that the proper interest rate should have been set at four percent. 

n528. 777 S.E.2d 801 (N.C. Ct. App. 2015). 

n529. Id. at 804. 

n530. N.C. Gen. Stat. § 1C-1850 et seq. 

n531. Unif. Foreign-Country Money Judgments Recognition Act § 3(b)(3) (Unif. Law Comm'n 2005). 

n532. N.C. Gen. Stat. § 1C-1852(b)(3). 

n533. Savage, 777 S.E.2d at 805. 

n534. Id. at 810. 

n535. Nos. A-5405-12T3, A-1040-13T31, 2015 WL 5009119 (N.J. Super. Ct. App. Div. Aug. 24, 2015), 

n536. No. 63189, 2015 WL 3489560 (Nev. May 29, 2015). 

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