*1
Cavanagh, Boyle, and the Court held: Weaver, Michigan applies. law presenting questions, Michigan 1. In tort cases choice of law law is to unless a rational reason to do otherwise is found to determining displace exist. In whether rational reason to Michi- gan exists, two-step analysis First, law is the undertaken: any foreign jurisdiction having must if determine an in has interest applied. interest, presump- its law If has no such an foreign tion that law will cannot be overcome. If having applied, does have an in interest its law Michigan’s court then must if determine interests mandate that applied, despite foreign law be interests. Application 2. of Ohio law would violate the defendants’ due process rights. litigation contact Ohio has with the is that plaintiffs Ontario, likewise, are Ohio residents. no has interest having apply. contrary, in according its statute limitations To the law, having to Canadian and Ontario Ontario an in has interest Michigan’s applied Supreme statute of limitations in this case. The adopted and, rule, Court of Canada lex has loci delicti had the plaintiffs Ontario, Michigan filed this suit law have would been applied. foreign jurisdiction having Because no an has interest case, presumption lex fori not over- in this come, Michigan’s interests need not be evaluated. Michi- apply. gan’s statute of limitations
Reversed and remanded.
Riley, concurring
part
Brickley, joined
Justice
Justice
*2
dissenting
part,
lex fori
should be
in
stated that the
involving
adopted
As matter
choice of law issues.
a
in all tort cases
apply Michigan
policy, Michigan
law. In cases
courts should
jurisdiction,
Michigan
Michigan
has
has insuffi-
a
but
where
litigation
so that the
contacts to the
or
cient
arbitrary
unfair,
Michigan
be
or
a court should select
law would
jurisdiction,
principles
guided
interested
the law of most
Anderson,
Braunlich, Braunlich William (by Russow for the defendant. Braunlich) case, law an C.J. In this choice of Ontario Mallett, an while on Michi- driver and Ohio driver collided Michigan suit in two gan Plaintiffs filed highway. years twenty-two days after the accident. Both and two-year have of limita- Ohio and Ontario statutes three-year has limi- tions, while statute of statute of tations. The trial court Ontario’s in limitations, had no interest holding We reverse and hold that because litigation. in having nor have an interest neither Ohio Ontario law apply. applied, Michigan I FACTS AND PROCEEDINGS The facts in this case are fit for a law school choice August of law 14, 1989, examination. On two trucks County, Michigan. collided on Interstate 75 Monroe Larry The driver of one G. truck, Sutherland, is a resi- operating dent of Ohio and was truck licensed Gregory Zavitz, Ohio. driver of the truck, other employed by a citizen Ontario, Canada. He was corporation. an Service, Ontario by Elgin Leasing, Zavitz’truck was owned had which Elgin leased the truck to Canadian Timkin. Both Leas- ing corporations. Timkin Canadian are Ontario September years twenty-two
On 1991, two days after accident, Mr. Sutherland and his wife alleging sued defendants Monroe Circuit Court, negligence. summary disposi- Defendants moved for pursuant 2.116(C)(7), arguing tion to MCR that the *3 court should either Ohio’s or Ontario’s statute jurisdictions negli- of limitations. Both of these bar gence years actions filed more than two after the response, plaintiffs argued of cause action arose.1 In governed by Michigan’s that case should be three- year statute of limitations.2
1 Ohio’s statute of limitations is Ohio Rev Code Ann 2305.10. Ontario’s
H.8,
is Ch
Ont Rev
206.
Stat
2
600.5805(8);
27A.5805(8).
MCL
MSA
Because the action accrued
Michigan, Michigan’s borrowing statute,
600.5861;
within the State of
MCL
27A.5861,
apply.
600.5861;
MSA
does not
MCL
MSA 27A.5861 states:
upon
accruing
An action based
of
cause
action
without
this
expiration
shall
state
not be commenced after the
of the statute of
place
limitations of
this
either
state or the
this
without
state where
accrued, except
the cause
action
that where
cause
of action
in
accrued
favor of a resident of this state the statute of limitations
apply.
amendatory
of this state shall
This
be
act shall
effective as
277
v
Truck
summary dis-
the motion for
granted
trial
The
court
found
analysis,” the court
“interest
position. Applying
in the
of this
had no interest
outcome
Michigan
that
none of the
are
litigation because
had an
further found that Ontario
citizens. The court
On
in
its citizens from stale claims.
protecting
interest
stat-
two-year
held
Ontario’s
basis,
this
the court
apply.
would
ute of limitations
opinion
the Court of
unpublished
per curiam,
In an
stated:
Appeals affirmed.3
Court
applying
err
statute.
The trial
did not
Ontario
analysis
properly
to
conducted an interest
The trial court
applying its
greatest
had the
interest in
decide which state
favored
Although
law once
statute
limitation.
matters,
procedural
the law of the forum
longer
no
the case. Recent decisions have criticized
such is
procedure and
for con-
between
substance
distinction
analysis, recognizing
has
used
that it
often been
flict of
manipulative
Anderson,
v
428
in a
manner. See Olmstead
Ryder
1,
(1987);
292
v
Mich
NW2d
Sexton
Rental, Inc,
406, 419-423;
(1982);
413 Mich
3 IssuedNovember II THE CHOICE OF LAW “REVOLUTION” jurisprudence Before American choice of law fifty for tort cases was uniform. All states adhered to place delicti, doctrine of lex loci or the law of the espoused by wrong, as in the Professor Beale First Restatement on Conflicts of Law. Under this governed by doctrine, tort cases were the law of the jurisdiction wrong in which the occurred. a suit by Michigan citizens who were in involved an acci- by governed dent in another would be jurisdiction, law the other even if the were suit brought primary advantage in this state.4 The questions easy rule was conflicts of law were theory. litigation resolve, at least in Parties in could usually predict govern what law would the case determining necessary the state where last act liability create occurred.5 purported all
While
states
to adhere to the rule of
century, many
lex loci delicti in the first half of this
expressed
rigidity
state courts
discomfort with the
mitigate
the rule. In order to
what were seen as harsh
developed
“escape
results, courts
several
devices”
example,
the lex loci delicti rule. For
a forum court
would decline to
the law of another
important public policy
if that law
with
conflicted
an
of the forum state. Courts would also characterize
“procedural,”
issues as
substantive,
instead of
appli-
order to
of the forum. While the
4 See, e.g.,
North,
Kaiser v
(1939)
(applying
292 Mich
Babcock adherence from the monolithic jurisprudence. Freed revisited its after state rule, state to the traditional with the frustration expressed its conflicts rules and had thirty-one states By 1980, loci delicti doctrine. lex Currently, ten rule. abandoned the traditional rule.8 the lex loci delicti purport states still 6 Id., 17.7, pp 577-580. § Babcock, plaintiff Babcock, supra defendant and the at 482. In par trip together taking Both New York to Ontario. were a weekend from garaged York, was and the automobile ties were residents of New Ontario, lost control of the While in the defendant in New York. licensed and crashed into a wall. car statute, guest plaintiff the suit in New York. Under Ontario’s The sued however, Appeals, stated been barred. The New York Court would have case, seeing because its law to this had no interest that Ontario parties were from New York. all the Mexico, Alabama, Kansas, Maryland, Georgia, New These states are Wyoming. Carolina, Virginia, Virginia, Carolina, West South North note, empirical Solimine, impact 56 Alb v Jackson: An Babcock L R 773 While slew lex loci it Babcock delicti dragon, produced a has not consensus on to deal with how questions of law conflicts absence of the tradi- tional rule. On grave, lex loci’s several the- competing sprouted. have prominent ories The most of these analysis,” “modem” theories is an approach “interest the late Brainerd has Currie advocated.9 Under approach, courts examine the inter- governmental jurisdictions. ests of involved If the forum state has law applied no interest but having its the other jurisdiction does, the law of the other *6 should be If chosen. the forum state has an interest and not, the other does the court should choose forum law. If both the forum state and the alternate in have an interest having law the and conflict, laws the apply then court should the forum’s If neither is interested, the court again apply should forum law. adopted
While several
analysis,
states have
interest
it competes for attention with other theories. Under
Professor Leflar’s “choice influencing considerations,”
for example,
courts ask which
the
has
“better rule of law.”10The
that the Second
Restatement on the Conflicts of Law proposes, on the
hand,
other
require
would
courts to determine which
jurisdiction has
significant
the “most
to
relationship”
11
the tort. At least one state,
adopted
has
Kentucky,
9 Currie,
Essays
Laws, pp
Selected
on the
of
Conflict
177-187.
10Leflar, Choice-influencing
law,
considerations
41 NYU
conflicts
(1966).
states, Minnesota,
L
Hampshire,
R
282
Three
New
and Wis
adopted
approach.
Saari,
155;
consin have
See Milkovich v
295 Minn
(1973);
Clark,
351;
(1966);
NW2d 408
Clark
v
NH
A2d 205
Zelinger
Co,
v State
Sand & Gravel
Wis 2d
Opinion the of Court approach, in which forum law fori blanket lex always applied.12 be approaches
Proponents
have
of
various
these
advantages
vigorous
engaged
over the
in a
debate
approach.
disadvantages
has
of
As Justice
each
Riley
milieu
of
has
a fecund
noted, conflicts
become
scholarship.13
illu-
this debate is
While
for academic
practice,
minating,
ignores
that,
the
much of it
fact
approaches
rel-
of law are
all the modem
conflicts
atively
they produce.
Professor
the results
uniform
surveyed
purport
has
cases that
Borchers
approaches
none
various modem
and concluded that
approaches
significantly from
the modem
differ
of
respects:
percentage
important
three
the others in
percentage
law,
forum
times that courts
plaintiffs
percentage
recover,
or the
of times that
parties prevail.14
times that local
Borchers’ research shows
fact,
Professor
approaches
signifi-
of modem
tend
favor
each
cantly
Applying
of forum law.
approaches,
select forum law between
modem
courts
fifty-five
seventy-seven percent
approximately
has
one commentator to note:
the time.15This
led
*7
12
(Ky
1972).
Leggett,
App,
Foster
differ on which “modem” purportedly applying court is or on whether a even particular approach. Moreover, itself to a commits there dispute among be seems to little the commentators that the functionally generally reaching courts are sound fair and decision.[17] coming results the cases for before them preference This hardly for forum law surprising. tendency The promotes toward forum judicial economy: judges attorneys experts and are in their law, expend state’s but have to considerable time resources to learn another state’s law.
Thus, on surveying juris- current conflicts of law prudence, one can reasonably conclude that two distinct conflicts of actually law theories One, exist. followed minority states, distinct of mandates adherence to the lex loci delicti rule. other, which bears states, different labels in different calls Id., supra approaches in terms of forum n 14 at 374-375. 16McDougal, legacy The real Babcock v Jackson: Lex instead fori revolution, lex loci delicti now it’s time a real choice-of-law 795, (1993). Alb L R 17Sedler, Michigan: policy- Choice law in Judicial method and the laws, Wayne centered L R 1198-1199 conflict of *8 v Opinion of the Court impor- law of the forum unless to the courts policy dictate otherwise. considerations tant
m
CHOICE OF LAW
OF MICHIGAN’S
THE DEVELOPMENT
JURISPRUDENCE
jurispru-
Michigan’s
law
choice of
of
The evolution
paralleled
In Abendschein
national trends.
dence has
(1969), this
Despite
rule,
the traditional
adherence to
“escape
employ
devices”
various
courts continued
consequences.
e.g.,
mitigate
See,
harsh
in order to
Sweeney Sweeney,
Review of the for lex loci and the alternate *9 methodologies choice-of-law convinces us that slavish devo- rigidities longer tion to the of lex loci no is either the rea- policy generally accepted sonable to follow or the law in fact, the United States. As a matter of the courts of Michi- gan frequently departed have from lex loci in individual [Sexton, supra instances. at 425.] While Sexton marked the end of the lex loci delicti rule in Michigan, produce it did not a consensus on appropriate choice of law methodology to be applied. Justice opinion18 expressly Williams’ declined any to embrace of the approaches “modem” to con- flicts of law. Id. at 433. Instead, opinion his held that forum law would be when Michigan residents corporations or doing business in Michigan are involved in accidents in appear another state and as plaintiffs and defendants in Michigan courts. Id.
Justice Levin, on the other hand, wished to create a presumption in favor of forum law for all tort cases personal involving injury or property damage. He stated: go should the distance Michigan and declare that
[W]e personal injury property in all damage regard plaintiffs actions without to whether the and defend- persons Michigan ants are all compel- unless there is some ling applying reason for jurisdiction, law of some other merely injury and that because arose out of an occur- rence in another state is not such a reason. at 442 [Id. J., (Levin, concurring).] opinion signed This was also Justices Levin Moody. Kennington Truck majority, produce a clear did not Sexton
Because application. struggled Some with its courts lower apply only in which all to cases read Sexton to courts parties to the and adhered are residents Other courts rule for all other cases.19 loci delicti lex balancing require of interests have read Sexton of the in the event that one various states Michigan.20 is not from sur- much of the confusion
This Court clarified
supra.
rounding
Anderson,
in Olmstead v
Sexton
in Wiscon-
an automobile accident
involved
Olmstead
and two Minnesota
driver
sin between
plaintiff,
the administratrix
The
residents.
origi-
residents,
Minnesota
of the deceased
estates
nally
suit was dis-
Minnesota,
but this
filed suit
jurisdiction.
improper
and lack of
venue
missed for
Michigan.
plaintiff
then filed suit
vitally important in
law issue was
The choice of
*10
limited
law at the time
Olmstead, because Wisconsin
recovery wrongful
$25,000.Neither
death cases to
damages
Michigan
recoverable
nor Minnesota limited
question,
addressing
of law
In
the choice
at that time.
Michigan
presumption
began
that
with the
Court
this
apply.
The Court then
24,
requires
Id. at
30-31.
law would
foreign law
whether “reason
asked
supersede
at 24.
law of this state.” Id.
justification
analyzing
for dis-
a rational
In
whether
Michigan
placing
in Olmstead
existed,
law
the Court
Mich App
686 F2d 406
iv
ANALYSIS provides Olmstead analytical framework for deciding is, case. That we will apply Michigan law unless a “rational reason” to do otherwise exists. whether determining a rational displace reason to exists, law we undertake a two-step analy- First, sis. we must any determine if foreign state has an interest its law having applied. If no state has interest, such' an the presumption that cannot be If overcome. a foreign state does an have interest in having its law applied, we must then determine if Michigan’s interests mandate that Michigan law applied, despite be the foreign interests. Id. at 24, 29-30.
Ohio and Ontario are the two foreign jurisdic- *11 potentially tions that have an interest in having their law applied in this Ohio, case. where plaintiffs v for these two-year has a statute of limitations
reside, types of actions.21 Ohio law to this
However,
a court could not
process
defendants’ due
violating
without
case
Ins v
Brennan stated
Allstate
As Justice
rights.
633;
S Ct
lar to the contacts” 310, 316; is, Washington, L International Shoe Co v 326 US 66 S Ct may (1945), not exercise over a Ed 95 holds that state “minimum contacts” so defendant unless the defendant and state have play justice” and substantial are not that “traditional notions of fair offended. relationship Supreme The United States Court has never determined the “significant” required law and “mini- contacts for choice of between required jurisdiction. Hay, supra, §§ Scoles & n 5 3.28- mum” contacts for law, 3.29, pp 96-101; Martin, Personal and choice However, argued at least one commentator has that the L R 872 many Intuitively, Id. at least as contacts standards should be the same. jurisdictional pur- required purposes choice of law as for should be say enough poses. that state X does not have It would make little sense to jurisdiction, yet Y state X’s to exercise but allow state contacts *12 454 Mich Opinion of the Court does an interest in seeing Because Ohio not have apply law, only its Ontario is the remaining the Ontario, Ohio, two-year candidate. like has a statute limitations.23 Defendants claim that because Ontario would benefit the Ontario defendants barring claim, the Ontario has an interest having applied. statute of limitations one Certainly, purpose protect of a statute of limitations is to defendants from stale claims. We do agree, however, not Ontario has an interest in protecting the defendants fact, from stale claims in this situation. In according to Canadian and Ontario law, Ontario has an interest in having Michigan’s statute of limitations this case. companion cases of v Jensen and Tolofson
Lucas v Gagnon, 120 DLR4th 289 (1994), Supreme adopted Court of Canada the lex loci delicti rule and held that Canadian courts must substantive law of the where the tort occurred.24 The court also stated that statutes of limi- substantive, procedural, tation are not for choice of law purposes. Tolofson, supra. Thus, Tolofson, under Canadian courts must the statute of limitations in which the tort occurred. 23 H.8, Ch Ont Rev Stat 206. Supreme superintending Court of Canada has control over the interpretation provincial Tolofson, supra. Thus, of all federal and laws. jurisprudence throughout provinces. choice of law is uniform This sharp experience, stands in contrast to the American where the United Supreme deep States Court has shown reluctance to federalize choice of Wortman, 717; law. See Sun Oil v Co 486 US 108 S Ct 100 L Ed 2d Interestingly, jurisprudence moving exactly Canadian choice of law opposite jurisprudence. direction from American choice of law While moving fori, American courts are from a lex loci delicti standard to lex Tolofson, Canadian courts have moved from lex fori to lex loci delicti. See supra. involves residents of British Columbia
Tolofson injured who were in an automobile accident in Sas- katchewan, present and thus does not an inter- problem. national choice of law Forest, Justice La court, speaking exception noted that an to the lex may loci delicti rule exist in international tort liti- gation if country the law of a foreign injustice.” “could rise to give Id. at 308. Justice [an] La continued, however, Forest to state that he could few cases “imagine where this would be neces- sary.” Id. *13 seriously
We doubt that an Ontario court would find that of Michigan’s three-year stat ute of limitations in this case would “give rise to injustice.” Certainly, no Ontario expressed court has qualms about applying American law. In Ostronski v Co, Global Upholstery 1995 Ont C J LEXIS example, applied Ontario Court of Justice Penn sylvania’s statute of limitations to a tort suit com menced in Ontario.25 Ontario’s courts have even applied American law when that law is detrimental litigants. Canadian See In re Hanlan, 1996 Ont C A LEXIS 754, rev’g Hanlan v Sernesky, 1996 Ont C J LEXIS 2538.
Thus, plaintiffs had filed this suit in Ontario, applied Ontario’s courts would have Michigan’s three- year statute of limitations.26 Because even Ontario Transportation, See also Abb Power Generation v CSX 1996 Ont C J (stating apply LEXIS that Ohio tort law will to a suit in commenced Ontario). looking limitations, way at Ontario’s statute of inwe no intend to renvoi, breathe life into the doctrine of renvoi. Under once a court deter apply jurisdiction, applies mines that it will the law of another it the entire jurisdiction, including law of that its choice of law rules. the choice point lawof rules of the chosen state could the court to a third state or 454 by
Opinion J. Brickley, escape defendants to would not allow the courts we do not law, of Ontario through application claim interest in Michi- having Ontario can have an see how Ontario law. gan courts having has an interest in Therefore, foreign no state presumption case. The lex fori its law to this Michigan’s not and we need not evaluate overcome, three-year Michigan’s at 30. stat- interests. Olmstead to this case. ute of limitations will we reverse the reasons, judgment For these the case to the trial Appeals Court of and remand proceedings. for further JJ., concurred with Weaver, Cavanagh, Boyle, Mallett, C.J. part dissenting (concurring
Brickley, by majority. reached part). I concur the result separately express my I view that However, write for this state to abandon the the time has come interest-analysis-based detailed approach majority. adopt I a lex fori Rather, would questions. choice of law *14 analysis by
I am troubled the choice of law defined by majority. this state’s choice of law the It describes rules as: analysis potential creates the for circular
back
the forum state. Renvoi
by
See, e.g.,
courts.
v Con-
and has been criticized
American
Haumschild
Co,
130, 142;
Casualty
2d
Under the factor, first nizing that choice of law and are doctri- nally clarify distinct, fails to the distinction between personal the minimum-contacts test for with the constitutional limits on choice Id. at by majority, n 22. 287, Supreme As cited the United States required Court that a forum state have suffi- cient contacts to case so that of its arbitrary fundamentally law is “neither nor unfair.” Hague, Allstate Ins v 449 US 302, 313; 101 S Ct (1981). Though L66 Ed 2d 521 Allstate did discuss majority specify appropriate fails to whether there are other analyzing Indeed, methods of a state’s interest. Olmstead identified the parties citizenship explore any interests of the with their and did not majority. (finding the methods used Id. at 28 that Wisconsin had no state). interest because none of the was a resident of that proper analyzing method for interests remains unclear. *15 454 Mich
Opinion J. Brickley, and fundamental of contacts of law in terms choice identical to that this test was it did not state fairness, jurisdiction. analysis determining personal for and that choice of law recognized has been Further, it concepts.2 fundamentally distinct are jurisdiction is analysis determining for Indeed, party, contacts with with the court’s concerned contacts of law examines while the test for choice giving transaction party and the occurrence or with majority’s 308, at 313. The litigation. rise to the Id. analysis oversimplifies this area constitutional law. how its majority’s second factor demonstrates
The will jurisdictions of other concern with the interests interest of To ascertain the result confusion. majority the choice of law Ontario, examines that an Ontario court Ontario, rules of and determines it. law if this case were before would majority Therefore, at 288-290. concludes Ante litigation. has interest in this Id. that Ontario no deci- majority requires the courts of this state to potentially rules of pher the choice of law every jurisdiction country, possibly in the apply. which law to world, before it can determine potential a burden. The simply great This is too The bench and bar of confusion and error is clear. require experts this state are To any number of expertise in the choice of rules of widespread jurisdictions is certain to lead foreign they cases, appeals confusion. These and the servative court See Brown, 71 NC L R protect defendants, ideologies of forum shopping Why — 700-701 doesn’t a con Bennington Opinion by Brickley, surely generate, most will tax the resources of this judiciary state’s all on levels. majority’s analysis
Nonetheless, the is consistent with this state’s current choice of law rules. This *16 problems major- leads me to conclude that the in the ity’s opinion underlying methodology. stem from this approach The most fundamental flaw in this to choice requires of law is that it the courts of this state to choose between the laws of Michigan and those of jurisdictions. foreign policy, As a matter of the courts apply Michigan applica- of this state should law. The requires foreign Michigan tion of a court to inter- pret apply sitting and that law as if the court was foreign jurisdiction. pre- that State courts should not speak jurisdictions sume to for other in this manner. majority’s analysis requires Michigan Further, apply jurisdiction courts to the law of another in cer- tain However, cases. before a this, court can do it expressly must first refuse to the laws of this ignores express state.3 This refusal and defeats the Legislature. Clearly, will of the the courts of this state should avoid this outcome.4
Moreover, there is an increased likelihood of error Michigan attempt foreign when courts to rule on foreign laws.5 The courts of this state must examine phases majority’s analysis. laws in both of the In the 3 Weinberg, Against comity, See 80 Geo L J choosing jurisdiction’s It should be noted that another law is funda mentally adopting approach given different from another state’s to a issue. context, Michigan In the choice of law court acts as if it is a court in a foreign puiports speak jurisdiction’s and to on that laws. How ever, Michigan when a court finds another state’s on an issue persuasive adopts it, merely Michigan the court refines holding addresses the laws of this state. especially country, foreign This is true when the law is from such as by majority. the Ontario choice of law rules examined 454
Opinion Brickley, required apparently courts are phase, Michigan first law rales and foreign choice of interpret jurisdiction by foreign of a examine the interests intent of its law. In this purpose or determining that Ontario would case, majority determines law. In the second apply Michigan phase court would have to majority’s analysis, Michigan found to have law if a is apply foreign displace previ law. As sufficient interests to I courts should ously discussed, feel for deciding through avoid cases laws. eign law meth
A flaw with this state’s choice of second unpredictable. sought is that Olmstead odology it system parties create a that would allow to accu rately any given litiga law that governs forecast that this has not been However, tion. this case shows delayed have been Rather, the result. these *17 years strag courts of this state have over five as the Further, law.7 governing to determine the the gled system any majority predict does not make this more systematic Instead, approach able. it fails to define jurisdictions. of other It determining the interests determining examines two factors that neither Yet, it Ontario nor Ohio can be interested in this case. to be is far from clear that these are the factors Indeed, considered.8 the crucial factor Olmstead Cox, Razing theory: See to build better conflict facades law, L R The is no law but 28 Val U foundation —There forum authority (arguing interpret (1993) have no to the intentions that courts foreign legislatures). September 5, original complaint The was filed on 1991. majority jurisdictions. to The does not even these factors both appli Rather, applies possible it factor to eliminate the the constitutional law, inquiry cation of Ohio and the choice of law rule to determine Opinion by Brickley, citizenship parties. By undertaking was the of the approach, majority certainty any regard removes applied ing what will be factors to determine if a state has an interest. part majority’s
Moreover, the second test requires any weigh foreign against a court to interests Michigan. finding those of However, that no other majority explaining interest, state has an avoids competing weighed. how interests are to be Future way litigants predict methodology, have no let required weigh outcome, alone the when a court is majority’s interpretation interests. under the system, parties the current choice of law have little certainty concerning the law that will be dispute. their
The third flaw in this choice of law pro-forum manipulation. that it hidden, allows majority recognizes manipulate apparently that courts justify neutral choice of law rules in order to application of forum law. Ante at 281-282. This parties’ expectation defeats the that choice of law neutrally applied. agree major- rules will be I with the ity’s preference surprising. comment that this is not majority steps However, Id. fails to take to elimi- problem. analysis major- nate this Indeed, that the ity uses to determine that Ohio and Ontario have no litigation example interest this is an of that approach. litigation. why explain Ontario has no interest in this It also fails to it employs approach. *18 (“Since party Id. at 28. neither in this case is a citizen of Wisconsin occurred], seeing the accident that state has no interest limi [where damage provision applied.”)
tation of 454 Brickley, Opinion of is now the choice in what serious flaws These that Michi- me to believe state lead law rules of this I approach. of law a new choice select gan should approach This adopted. be fori should feel that lex majority’s methodol- evils of the will avoid the three courts will fori, Michigan under lex First, ogy. This eliminates law in most cases. Michigan applies a court result when problems that Second, a lex fori jurisdiction. laws of another to this clarity predictability bring approach parties entering law. All area of the by Michigan they governed are to be would know that law. manipulate tempted not be
Finally, courts would would The lex fori of law rules. the choice employ one of the for a court to eliminate the need have used to techniques that courts primary two jurisdiction’s application foreign of avoid the public policy to invoke a would not have The court application exception requiring to a rule not have to law and would jurisdiction’s another procedural, as an issue recharacterizing resort application substantive, than to allow rather generally lex fori rule would the forum’s law.10 The 10 Olmstead, supra 9-10, stated: at this Court Rental, Inc, Ryder 413 Mich As noted in [Sexton employed escape 426-431; (1982)], devices to NW2d 843 courts potentially rule of lex harsh results the common-law avoid [from techniques “procedu- manipulative were loci The two main delicti]. “public policy” exception. 426. Id. at and the ral characterization” an issue as involves characterization of Procedural characterization substantive, applying procedural forum law to rather than and then applying Courts, thus, procedural were able to evade issues. wrong occurred. law of the state which the policy exception public was invoked when the policy. Michigan public foreign law would be violative of *19 Bennington Opinion Brickley, distinguish eliminate the need for court between procedural Rather, and the laws of substantive procedural, clearly Michigan, and would substantive any possibility manipulation. govern without This legitimate expec- would ensure that courts fulfill the litigants applied evenly tation of the that laws be fairly.
I am aware that the lex fori
has been crit-
encouraging
shopping.
supposed
icized for
forum
This
greatly exaggerated
evil is
and should not deter this
adoption
approach.
shop-
of the lex fori
state’s
Forum
ping thought
plain-
an
is
to be
evil because it allows a
expose a
tiff to
defendant to the laws of
forum that
litigation, assuming
has little involvement in the
that
the forum has
over the defendant. Olm-
approach propose,
stead,
Initially, important recognize it is that a forum party shopping Michigan asking who chooses is policies state courts of this to effectuate the laws why Michigan. Michigan of There is no reason courts summarily request. Rather, should refuse this it is the duty Michigan courts to effectuate these laws and policies. plaintiff Assume that a to file chooses suit recognizes because law his claim. plaintiff’s application Michigan law to this policy expressed by Michigan fulfill claim Legislature, recognizes Thus, which the claim. forum necessarily problematic shopping is not to the extent Opinion by Brickley, J. that it leads to the policies fulfillment the laws and of this state. commonly
Forum is shopping also assumed to be unfair to defendants. prem- This view is based on the ise plaintiff has selected an unfair forum.11 However, the that the defendant would have the likely just to be as unfair.12 Indeed, the likely defendant will urge the court to apply the law that is most certain to lead to a dis- plaintiff may while the “shop” for a missal.13 forum whose law is beneficial to its case, the defend- *20 just likely ant is “shop” as for law favorable to it. Thus, really there party no innocent in these situa- way tions. The fairest to resolve this is rely on the traditional plaintiff notion that the is the master of his lawsuit, and, such, as is entitled to choose the Also, majority the vast of cases, entity an forum.14 sufficiently that has connected itself to Michigan so that a Michigan court has over it will not unfairly by be burdened of Michigan’s laws.
Finally, pointed it should be out that choice of law rules that focus on interests automatically do not dis- courage forum shopping. Indeed, choice of law meth- odologies that focus on abstract interests are also vul- nerable to Thus, no sys- choice of law manipulation.15 entirely tem is free from forum I shopping. However, 11 Weinberg, supra See n 3 at 64.
12See id.
13 See id. at 71. Brown, supra ways (discussing See n 2 at 668-672 in which the system legal plaintiff American is benefited when the is allowed to choose forum, applies fori). and the forum the lex supra Brown, 674, quoting Gottesman, See n 2 Draining at the dis swamp: statutes, mal The case choice 80 Geo L J for federal Bennington Opinion by Brickley, any negative would result from effects that
feel that adoption shopping a of a lex as result of forum by outweighed be the benefits of would fori maintaining system predictable choice of law clear, a require Michigan give courts to effect to that would Michigan law. system only placed a lex fori should limits on required by the United States Constitution.
be those
Supreme
plurality
the United States
Allstate,
could
its law to a case
Court found that
state
significant aggregation
“significant contact or
if it had
creating
interests, with the
contacts,
state
Allstate,
transaction.”
449 US
and the occurrence or
fairly stringent test,
be a
308. While this seems to
tangential
a few
contacts were
Court found
satisfy
Supreme
needed to
it.16 The United States
significant-contacts
affirmed the Allstate
test
Court
Phillips
Shutts,
797, 814-823;
Co
472 US
Petroleum v
Ct
Opinion by Brickley, a forum may constitutionally state not apply its law.17 However, appears it very that this threshold is low.18 Thus, the United States Constitution does not sub- stantially limit Michigan’s ability adopt a lex fori approach. adopt I would the lex fori in all tort
cases involving choice of law issues. As discussed above, the United States prohibits Constitution application of lex fori in Indeed, some cases. Shutts shows that a may have case, over a but not be able to apply its substantive law. In those cases where a Michigan court has jurisdiction, but Michigan has insufficient contacts to the litigation or so that the application of arbitrary would be unfair, or a court should select the law of the most interested jurisdiction, guided by the principles set forth in Olmstead. case, lex fori should be applied because no
constitutional
limitations on lex
applicable.
fori are
The United
Supreme
States
Court has found that
forum states have complete authority
their
procedural
own
rules, including statutes of limitation.
Sun Oil Co v Wortman,
occurred majority that Michi- with the Thus, I concur forum. gan’s in this case. should of limitations statute agree law meth- with the choice of I However, cannot adopt majority. employed odology I would approach. fori lex with
Riley, J., concurred Brickley, part of this case. in the decision J., took no Kelly,