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56 Alb. L. Rev. 795 (1992-1993)
The Real Legacy of Babcock v. Jackson: Lex Fori instead of Lex Loci Delicti and Now It's Time for a Real Choice-of-Law Revolution

handle is hein.journals/albany56 and id is 813 raw text is: THE REAL LEGACY OF BABCOCK v. JACKSON: LEX
FORI INSTEAD OF LEX LOCI DELICTI AND NOW IT'S
TIME FOR A REAL CHOICE-OF-LAW REVOLUTION
Luther L. McDougal III*
I. INTRODUCTION
For centuries lex loci delicti, the law of the place of the wrong,
dominated scholarly thinking and courts applied it to resolve tort
choice-of-law issues.' Courts, however, did not always apply lex loci
delicti to resolve tort cases.2 In some instances the courts would em-
ploy an escape device or gimmick, such as the substance versus pro-
cedure classification, a recharacterization of the issues, or the public
policy of the forum, to avoid application of lex loci delicti.3 This was
one of the problems with the traditional approach; it was simply un-
clear when courts would apply lex loci delicti and when they would
employ one of the gimmicks to avoid lex loci delicti. In Kilberg v.
Northeast Airlines, Inc.,4 the New York Court of Appeals employed
two of these gimmicks and discussed all three.
Against this backdrop, thirty-years ago the New York Court of Ap-
peals began the so-called choice-of-law revolution in tort cases with
its decision in Babcock v. Jackson. As is well known, the Babcock
court abandoned lex loci delicti' because the doctrine failed to take
into account underlying policy considerations.6 Instead, the court
held that tort choice-of- law issues should be resolved on the basis of
contacts with states, and state interests and concerns.7 The exact the-
ory Babcock employed to resolve the choice-of-law issue in the case is
* W.R. Irby Professor of Law, Tulane University.
See Friedrich K. Juenger, A Page of History, 35 MERCER L. REV. 419 (1984); Luther L.
McDougal III, Private International Law: Ius Gentium Versus Choice of Law Rules or Ap-
proaches, 38 AM. J. CoMP. L. 521 (1990).
2 See McDougal, supra note 1, at 524-25.
1 See ROBERT A. LEFLAR ET AL., CASES AND MATERIALS ON AMERICAN CONFLICTS LAW, 220-44
(2d ed. 1989).
172 N.E.2d 526 (N.Y. 1961).
5 191 N.E.2d 279 (N.Y. 1963).
' Id. at 281.
' Id. at 283-84.

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