The Choice-Of-Law Revolution: An Empirical Study
![handle is hein.journals/waslee49 and id is 369 raw text is: ARTICLES
THE CHOICE-OF-LAW REVOLUTION:
AN EMPIRICAL STUDY
PATRICK J. BoRcIRs*
INTRODUCTION
Much has been said and written about the changes in choice of law
wrought over the course of the last three decades. Since the New York
Court of Appeals' 1963 landmark decision in Babcock v. Jackson,' it is
generally accepted that the United States has undergone a conflicts revo-
lution.'2 The conflicts literature is replete with exhaustive reviews of the
revolutionary case law.3
It is clear beyond peradventure that the American choice-of-law vocab-
ulary has changed dramatically. Until 1963 the Restatement (First) of
Conflict of Laws (the First Restatement) commanded a nearly universal
following.4 Grounded in the conceptual edifice of the vested rights theory,
the First Restatement chose the lex loci delicti, or the law of the place of
the injury, in tort cases.5 Now, only fifteen of the fifty-one United States
jurisdictions still follow the First Restatement in tort cases, while thirty-six
states have adopted some alternative.6 Instead of looking for the place of
the injury, these thirty-six jurisdictions rationalize their choice-of-law deci-
sions in terms of interests,7 significant relationships,'8 and choice-
influencing considerations. 9
* Assistant Professor of Law, Albany Law School of Union University. Thanks to
Richard Platkin and Cor Kaplan for their outstanding research help, and to Fritz Juenges
and Michael Solimine for their helpful comments on an earlier draft.
1. 191 N.E.2d 279 (N.Y. 1963).
2. See, e.g., Gary J. Simson, Introduction: New Directions in Choice of Law: Alter-
natives to Interest Analysis, 24 CORNELL INT'L L.J. 195, 195 (1991).
3. See, e.g., TH. M. DE BOER, BEYoND LEx Loci DELiCTi (1987); Herma H. Kay,
Theory into Practice: Choice of Law in the Courts, 34 MERCER L. Rzv. 521 (1983); Harold
L. Korn, The Choice-of-Law Revolution: A Critique, 83 CoLuM. L. REv. 772 (1983); Gregory
E. Smith, Choice of Law in the United States, 38 HASTiNGs L.J. 1041 (1987).
4. Friedrich K. Juenger, General Course on Private International Law, 193 REcuBIL
DES CouRs D'AcAEMIE DE DRorr INTERNATONAL [R.C.A.D.I.] 123, 220-21 (1985).
5. RESTATEMENT (FrsT) OF CoNIucT OF LAWS § 377 (1934) (stating that law applied in
tort cases is place of last event necessary to complete tort).
6. See infra Table II.
7. BRAiNERD CtRnuE, SELECTED ESSAYS ON THE CONFLICT OF LAWS 90 (1963).
8. RESTATEMENT (SEcOND) OF CONFLICT OF LAWS § 6 (1971).
9. Robert A. Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.
L. REv. 267 (1966).](ViewImageLocal?handle=hein.journals/waslee49&div=31&collection=&method=preview&ext=.png&size=3)
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The Choice-Of-Law Revolution: An Empirical Study
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