Symeonides: Choice of Law for Products Liability
Symeon C. Symeonides, Dean of the College of Law at Willamette University, has just last week posted Choice of Law for Products Liability: The 1990s and Beyond (forthcoming on the Tulane Law Review, Vol. 78, No. 1247, 2004) on SSRN. Here is the abstract:
This Article provides a comprehensive review of product-liability conflicts cases decided by American courts between 1989 and 2004 and involving significant choice-of-law questions.
Among the Article’s findings are that choice-of-law methodology plays a less significant role in the courts’ choice of the governing law than do other factors, such as the number and pertinence of factual contacts with a given state. For example, regardless of methodology, in 79% of the cases in which the product’s acquisition and the victim’s domicile and injury were in the same state, the courts applied that state’s law, regardless of whether it favored the plaintiff or the defendant and regardless of whether that state was also the forum. Among the Article’s unexpected findings are that, contrary to prevailing perceptions, forum-shopping is not as common or rewarding as critics assume, and that courts do not unduly favor plaintiffs as a class nor the law or the domiciliaries of the forum state.
The Article concludes that an all-inclusive review of the cases reveals that, on the whole, the record of American courts in resolving these most intractable of conflicts is much better than one might assume from a selective reading of a few cases. However, because this record entails a heavy cost in time and resources for courts and litigants, the Article proposes a new choice-of-law rule that would produce mostly the same results as the decided cases, but much more quickly and at a lower cost.
The proposed rule differentiates between liability and damages and, within certain narrow parameters, allows plaintiffs and secondarily defendants to choose the state whose law will determine liability. Surprisingly, this rule will not favor plaintiffs more than the decided cases, but it should increase the incentive for early negotiations with regard to damages and encourage settlements without resort to litigation.
The complete list of Prof. Symeonides’ works (where are often announced on this site) can be found on the SSRN author page.
I also have an article published in 2006 which may be of interest:
“Bringing Locus Into Focus: A Choice-of-Law Methodology for CISG-based Concurrent Contract and Product Liability Claims” in REVIEW OF THE CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG) 2004-2005, Pace International Law Review, ed., München: Sellier European Law Publishers, pp. 179-223, 2006 (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=578566)
Here is the abstract:
The article discusses choice-of-law theories for both contractual and tort/product liability claims governed by the CISG. The underlying theme is that concurrent claims are not necessarily equivalent claims. While concurrent liability in contract and tort (namely, product liability) may be applicable or alternative remedies available, the focus of the CISG is the harmonization of rules governing international sale contracts. The article argues that factors such as the place of injury or where the damages are sustained are less relevant than the situs of the contract, based upon the view that, without privity of contract, the concurrent tort would not arise. Where the damages were sustained, in the absence of injustice, should not be determinative by resort to parochial, territorial or domestic policy-driven application of procedural rules affording jurisdiction. This paper coins a new conflict of laws phrase: the lex foci conventionis, or simply the lex foci, defined as the law of the place where CISG claims in contract and tort converge. Applying this new paradigm, a choice of law methodology is proposed for concurrent contract and product liability claims. Where gaps, exclusions or conflicts arise, dispositive factors are offered to delimit the core of the action.
Antonin I. Pribetic