Ordinarily, all legally significant aspects pertaining to a lawsuit emanate from a single state (usually the state where the lawsuit was filed), and the court assigned to the lawsuit decides the case based strictly upon the laws of that state. However, by its very nature, aircraft accident litigation often arises from factual scenarios involving people and aircraft emanating from multiple states and even multiple nations. And those scenarios often raise questions regarding which law will apply. The body of law known alternatively as “conflict of laws” or “choice of laws” was specially designed to answer those questions.
However, over the decades, the process has evolved into something significantly complex and variable. This inspired one judge to famously describe choice of law as: a veritable jungle, which, if the law can be found out, leads not to a “rule of action” but a reign of chaos dominated in each case by the judge’s “informed guess” as to what some other state other than the one in which he sits would hold its law to be.
By the end of this article, the reader should be equipped with the machete necessary to carve a path through the jungle. This article will provide an overview of choice of law; it will discuss the various choice of law standards employed in state and federal courts across the nation; it will discuss the factors evaluated in the popular Restatement test; and it will discuss the practical considerations that often influence decisions regarding choice of law.
Bryan S. David, Welcome to the Jungle: The Application of Foreign Law in Aircraft Accident Litigation, 83 J. Air L. & Com. 715 (2018)