Texas Tech Law Review
Several recent Texas choice of law cases have misapplied the most-significant-relationship test, the basic Texas choice of law test adopted from the Restatement (Second) of Conflict of Laws. The misapplications (none from the Texas Supreme Court) predominantly turn on the courts' improperly focusing on a single element of the seven-factor most-significant-relationship test, thereby thwarting its function as a balancing test for competing interests. Texas courts are not alone in this misunderstanding of choice of law tests. In recent years most states have moved away from the old rigid choice of law rules--easily applied, but often unfair--to the newer rules based on balancing competing interests. In doing so, many courts have struggled with these new multi-faceted tests.
This outline offers a simplified but accurate structure for choice of law analysis, from the constitutional issues in legislative jurisdiction to the balancing factors of the most-significant-relationship test. The result is a relatively simple outline of a complex subject. Although the outline reduces choice of law to its simplest form, it may seem unnecessarily complicated to some readers. Every point in the outline however is a potential issue in any lawsuit with a foreign element. Correctly applied, this outline will facilitate the choice of law process by spotting choice of law issues, directing and narrowing the choice of law analysis, and addressing both constitutional and Texas standards for selecting the applicable law. Thus, in spite of its initial complexity, this outline will enable Texas judges to make most choice of law decisions quickly and accurately. Although the outline is focused on the court's analysis--that is, it is formally directed to judges, as are most choice of law articles--it will no doubt provide insight for advocates.
This outline does not purport to be the exclusive approach to choice of law. However, it does provide an efficient and thorough analysis. Of course, this process cannot assure a reversal-proof choice of law decision, but it can assure consideration of the important choice of law issues, and thus make it more likely that the most appropriate law is chosen. This outline can also simplify the choice of law process by acquainting judges and practitioners with basic presumptions favoring the application of forum (Texas) law in many instances.
While this outline is thorough, it is only a checklist of issues and not a comprehensive discussion. Readers should consult the cited authorities as well as other references when problems arise.
James P. George,
Choice of Law Outline for Texas Courts,
Tex. Tech L. Rev.
Available at: https://scholarship.law.tamu.edu/facscholar/255