Choice of Law and the Preponderantly Multistate Rule: The Example of Successor Corporation Products Liability

Authors

Diana SclarFollow

Abstract

Most state rules of substantive law, whether legislative or judicial, ordinarily adjust rights and obligations among local parties with respect to local events. Conventional choice of law methodologies for adjudicating disputes with multistate connections all start from an explicit or implicit assumption of a choice between such locally oriented substantive rules. This article reveals, for the first time, that some state rules of substantive law ordinarily adjust rights and obligations with respect to parties and events connected to more than one state and only occasionally apply to wholly local matters. For these rules I use the term “nominally domestic rules having preponderantly multistate application.” For choice of law cases presenting conflicts between such nominally domestic rules I use the term “preponderantly multistate cases.”

As courts and scholars so far have failed to perceive the category of preponderantly multistate cases they have failed to appreciate their qualitative difference from cases presenting a choice between only locally oriented rules of law. This article describes preponderantly multistate cases and critiques the myriad ways in which courts have applied conventional choice of law methodologies to decide one category of these cases—those involving successor corporation products liability. The critique demonstrates why a court choosing between nominally domestic rules in a preponderantly multistate case never should use conventional choice of law methodologies. My thesis is that when a state lawmaker, whether a legislature or a court, adopts a nominally domestic rule having preponderantly multistate application, the lawmaker concomitantly makes an inherent choice always to apply that substantive rule in the state’s courts. Hence, in preponderantly multistate cases the forum should not be free to ignore the lawmaker’s choice of law; the forum just should apply its substantive law to all preponderantly multistate issues.

Recommended Citation

Diana Sclar, Choice of Law and the Preponderantly Multistate Rule: The Example of Successor Corporation Products Liability, 125 Dick. L. Rev. 411 (2021).
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol125/iss2/5