California's Territorial Turn in Choice of Law

Abstract

California courts have been world leaders in the field of conflict of laws. They helped launch the modern conflicts revolution in the 1950s and became the internationally preeminent proponents of the modern choice of law approach known as comparative impairment in the 1960s.Under the traditional approach (codified by the First Restatement of Conflicts in 1934) all jurisdictions applied the law of the place of the wrong or injury. This meant California courts would recognize defenses available under Alabama law if an accident occurred in Alabama even if all the parties were from California and there was no good policy reason for applying Alabama law. For example, if Alabama recognized spousal immunity, a California spouse injured in Alabama was barred from suing her California spouse in California. (A more contemporary example would be the application in California of an Alabama law that refused to provide loss of consortium for same-sex spouses.)California helped lead the country away from the rigid territorialism of the traditional approach. Today most American courts will consider the policies behind laws in conflict. They will not apply the law of the place of an accident unless doing so advances a legitimate policy of that state. For example, Alabama would have no interest in barring tort actions between California residents brought in California state courts — or in refusing to recognize the right of same-sex California resident to loss of consortium. So California would not apply Alabama law in such cases.The accompanying draft Article undertakes a thorough study of recent California decisions and places them in historical context. It concludes that, while continuing to give lip service to the comparative impairment approach, California decisions since 2000 have veered sharply towards giving overwhelming weight to territorial factors. Two recent supreme court decisions, McCann (2010) and Sullivan (2011) give an even more extreme form to territorialism that did the First Restatement of 1934.No scholarship has addressed this dramatic shift. Its relevance for California and the majority of state courts that follow a modern policy-oriented approach to choice of laws is obvious. But California’s shift has larger national and even international implications for understanding the commitment of American courts to the modern approach to conflicts and for evaluating the legacy of the “revolution” that began in the 1950s.