Professor of Law, Wayne State University. A.B., 1956, J.D., 1959, University of Pittsburgh.
Among the many accomplishments that stand as a tribute to the extraordinary career of Professor Symeon C. Symeonides is the Louisiana codification of conflict of laws rules. Professor Symeonides served as the Reporter for the Advisory Committee that drafted the codification, and the codification embodies Professor Symeonides's longstanding submission of the need for choice of law rules that are "flexible with built-in escapes which will allow courts enough freedom to deviate in exceptional cases."1 Such rules are necessary, he maintains, as a vehicle for producing predictability and providing courts with guidance in the resolution of conflicts questions.2 Along with a number of other conflicts scholars, Symeonides bemoans the purported uncertainty and lack of predictability in American conflicts law today. The consequences of this purported uncertainty and lack of predictability are said to be "contradictory results in the case law, confusion, and . . . [the] 'homeward trend'. . . ." 3
I totally disagree. When we look at the actual decisions of the courts in conflicts cases and the results that they reach in practice, particularly in the torts area, I submit that there is indeed a high degree of certainty and predictability and a pattern of results that is fairly consistent and coherent.4 This is because what has emerged from the actual decisions of the courts in conflicts torts cases are rules of choice of law. Unlike choice of law rules, whether the broad, state-selecting rules of the traditional approach or the narrower and policy-based rules that many commentators have long favored,5 or Professor Symeonides's "flexible" rules in the Louisiana codification, rules of choice of law are not formulated a priori by courts6 Page 1332 or by legislatures and then applied to the facts of particular cases. Rather, rules of choice of law are like common law rules in other areas, such as tort law or contract law, in that they are derived from the decisions of the courts in actual cases and serve as precedents for the resolution of future cases.7 In time, as a number of conflicts cases have been decided by the courts of a particular state, a body of conflicts decisional law, embodying rules of choice of law, will emerge in that state.8
In this article, I will discuss the tort rules of choice of law and relate them to the results that would be expected to follow from the application of the tort choice of law rules of the Louisiana codification. I will demonstrate that those results are consistent with the results of the application of the tort rules of choice of law. This being so, the practical effect of the Louisiana codification will be to provide the tort rules of choice of law for Louisiana that in other states have been provided by the courts' decisions in the conflicts cases coming before them.
Some twenty years ago I explained how rules of choice of law had been developed in conflicts torts cases, and I identified nine tort rules of choice of law.9These rules of choice of law were based solely on the results of the decided cases in a number of states that had abandoned the traditional approach and were independent of the courts' explanation of their decisions in those cases or on the application of the particular choice of law approach that the court was purportedly following.10 My review of the decided cases persuaded me that in practice the Page 1333 courts generally were making the choice of law decision with reference to the policies and interests of the involved states and considerations of fairness to the parties, so that the results were generally consistent with the results that would be produced under the interest analysis approach to choice of law.11 I also concluded that the courts were reaching fairly uniform solutions in the different fact-law patterns presented in conflicts torts cases, and that when the courts differed, the differences were sufficiently clear as to indicate "majority" and "minority" views, as in other areas of law.12 My submission, therefore, was that choice of law rules were not necessary to bring about certainty and predictability. A fair degree of certainty and predictability was achieved within each state by the rules of choice of law that emerged from the results reached by the courts in the actual cases coming before them for decision. I have recently reviewed the tort rules of choice of law that I identified some 20 years ago and concluded that they are generally supported by the more recent decisions of the courts in conflicts torts cases.13
The tort rules of choice of law reflect the "real world" in which conflicts litigation operates. In the "real world" of conflicts litigation,14 the way that conflicts law looks to lawyers and judges is often quite different from the way that conflicts law looks to academic commentators. Lawyers and judges must look primarily to the applicable conflicts precedents and decisional law in their own states and are only concerned incidentally, if at all, with the conflicts decisions of other state courts. Academic commentators, in contrast, look to the totality of conflicts cases, and with a large number of conflicts cases being decided by many different courts, it is not surprising that academic commentators tend to see "inconsistency and unpredictability." Whereas if they were to look separately to the conflicts decisions of the courts within each state, they would be far more likely to find that within each state the results are fairly consistent and coherent, so that the conflicts law of that state is sufficiently certain and predictable for the lawyers and judges who are called upon to apply it.15
Moreover, in the "real world" of conflicts litigation, the question of choice of law cannot be separated fully from the question of jurisdiction as it relates to the possible states in which suit can be brought. While academic commentators may decry "forum shopping" for a more favorable law and may search for uniform solutions in conflicts cases, litigating lawyers know that the choice of law result in a particular case and the possible outcome of the case as well may often depend on the state where suit can be brought. They quite realistically assume that a court is more likely to apply its own law in preference to the law of another state and that where a state has a real interest in applying its own law in order to implement the policy reflected in that law, the courts of that state are highly likely to do so.16 This Page 1335 being so, plaintiffs' lawyers will try to bring their suit in the state whose law is plaintiff-favoring, while defendants' lawyers will assert jurisdictional and forum non conveniens objections to suit in the plaintiff-favoring state and try to force the plaintiff to litigate the case in a forum whose law is defendant-favoring. The lawyers on both sides will also consult the choice of law precedents of the different involved states and will try to get the case before a court whose choice of law precedents are likely to result in the application of the state's law that is more favorable to their client. Because there is this strong connection between jurisdiction and choice of law in practice, the tort rules of choice of law that I have identified are sometimes framed with reference to the state in which suit has been brought.
I have identified the following ten rules of choice of law in conflicts torts cases:
Rule 1: When two residents of the forum are involved in an accident in another state, the law of the forum applies.17
Rule 2: When two parties from a recovery state, without regard to forum residence, are involved in an accident in a non-recovery state, recovery will be allowed.18
Rule 3: Where two parties from a non-recovery state are involved in an accident in a recovery state, and suit is brought in the recovery state, the courts are divided. Some courts will apply their own law allowing recovery, while other courts will apply the law of the parties' home state, denying recovery.19
Rule 4: When a forum resident suffers injury in the forum either because of an act done there or because of an act done elsewhere that creates a foreseeable risk of harm in the forum, the forum will apply its own law allowing recovery.20
Rule 5: When a plaintiff from a recovery state is injured by a defendant from a non-recovery state in the defendant's home state, and the suit is brought in the plaintiff's home state, the courts are divided, with the majority view appearing to be that the forum should apply its own law in the absence of unfairness to the defendant.21
Rule 6: When a plaintiff from a recovery state is injured by a defendant from a non-recovery state and the suit is brought in the defendant's home state, that state will apply its own law denying recovery.22
Rule 7: When the law of state in which an act or omission occurs reflects a conduct-regulating policy, the defendant will be held liable if that act causes harm in another state or to a non-resident in the defendant's home Page 1336 state. Conversely, a state will not apply a law reflecting only a conduct-regulating policy to conduct that takes place entirely in another state.23
Rule 8: When a plaintiff from a non-recovery state is involved in an accident with a defendant from a recovery state, and the accident occurs in the defendant's home state, recovery will be allowed. When the accident occurs in the plaintiff's home state, recovery will usually be allowed, but sometimes the courts apply the law of the plaintiff's home state denying recovery.
Rule 9: The tort liability of an employer to an employee who is covered by workers'...