States’ and nations’ laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This Article reviews Texas conflict cases from Texas state and federal courts during the Survey-period from November 1, 2011 through October 31, 2013. The Article excludes cases involving federal–state conflicts; intrastate issues, such as subject matter jurisdiction and venue; and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases are discussed together because conflict of laws is mostly a state-law topic, except for a few constitutional limits, resulting in the same rules applying to most issues in state and federal courts.
Although no data are readily available to confirm this, Texas is no doubt a primary state in the production of conflict-of-laws precedents. This results not only from its size and population, but also from its placement bordering four states and a civil-law nation, and its significant international trade volume. Texas state and federal courts provide a fascinating study of conflicts issues every year, but the volume of case law now greatly exceeds this Survey’s ability to report on them, a function both of journal space and authors’ time. In addition, the current Survey covers two years and will accordingly limit its review to a few highlight cases and an examination of a couple of trends.
The most notable highlight is a non-Texas case, which is nevertheless important because it comes from the Fifth Circuit Court of Appeals, distinguishing the Circuit’s view on stream-of-commerce jurisdiction from the U.S. Supreme Court’s recent plurality in 2011. Choice-of-law cases include two interesting trends, one good and one bad. The good trend is Texas courts’ increasingly sophisticated use—notably in tort cases—of the variety of subject-specific sections in the Second Restatement of Conflict of Laws. The bad trend, holding over from the 2012 Survey, is the number of courts acquiescing to contractual choice of law clauses without the scrutiny required under Texas law and the Restatement. Along with these cases, the Survey-period produced a number of notable holdings discussed below.
James P. George, et al., Conflict of Laws, 1 SMU Ann. Tex. Surv. (2014)