Three Main Choice of Law Approaches

Question 1

What are the three main choice of law analytical approaches?

Answer 1

1. Vested Rights Approach
2. Most Significant Relationship Approach
3. Interest Analysis

Question 2

What are the three main analytical steps with the Vested Rights Approach?

Answer 2

1. Determine What Area of Law is Involved (torts, contracts, etc)
2. Determine the Particular Choice of Law Rule
3. Localizing the Rule to be Applied: After a court has identified the particular choice of law rule, the court must localize the rule by identifying the jurisdiction prescribed under the rule.

Question 3

What are the two main steps used in the Most Significant Relationship Approach?

Answer 3

There is a 2-step approach used to determine the MSR:

1. The connecting facts in a case must be considered
2. Certain policy-oriented principles must be considered

Policy Principals to Consider for Step 2

• What Are the Needs of the Interstate or International Systems: This principle is designed to facilitate harmony among the various jurisdictions involved.
• What Are the Relevant Policies and Interests of the Forum?
• What Are the Policies and Interests of the Other Interested Jurisdictions?
• Are the Justified Expectations of the Parties to Be Protected?
• What Are the Basic Policies Underlying the Particular Substantive Field of Law?
• Will Application of a Given Law Aid Certainty, Predictability, and Uniformity of Result: Courts seek to discourage the prospect of forum shopping.
• May the Determination and Application of a Specific Law Be Made with Ease: If the law of a second jurisdiction is difficult to determine and apply, the court may take this into account in deciding whether it should be used in a given case.

Question 4

What are the main steps used in the Interest Analysis Approach?

Answer 4

1. Assume forum will apply its own law unless asked to apply another.
2. If it is requested to apply another state’s law, look for false conflict
3. If false conflict — Apply the law of interested state
4. If true conflict — The forum reconsiders its policies
5. If the forum has no interest in applying its own law, it should dismiss the case if forum non conveniens is available; if not, it may apply interested state’s law or law of the state that most closely resembles its own law.
6. If no interested state, most courts apply law of forum.

False Conflict: Only one state has an interest in having its own law applied

True Conflict: Both the forum and another state have an interest in having their own laws applied