Choice of Law: A Guide for Texas Attorneys
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This Article is a follow-up to an earlier article, Choice of Law Outline for Texas Courts, 18 Tex. Tech L.Rev. 785 (1987), which attempted to illustrate the proper Texas choice of law analysis under the then-recently-adopted “most significant relationship test.” The prior Article was intended for Texas judges, and considered only what ought to occur in a Texas state or federal court. This successor Article is for Texas practitioners, but goes beyond the Texas courtroom. It focuses on the choice of law process in Texas state and federal courts, but is broad enough to acquaint the reader with choice of law in all courts in the United States, and to some extent, courts outside the United States. It is directed to litigators, but should also be useful to transactional attorneys facing choice of law decisions. Two premises are essential to understanding choice of law analysis: 1) Forum law controls choice of law. This premise has three implications. First, the initial task in choice of law analysis is to identify the forum, then to identify the forum's pertinent choice of law rules. If the lawsuit has not yet been filed, the attorney must analyze choice of law as to potential forums, that is, those forums with personal and subject matter jurisdiction. Second, in transactional matters, attorneys should give any potential forums' choice of law rules the same consideration as personal jurisdiction and substantive law, taking care to verify that the intended applicable law will not be undone by contrary public policy or law (either substantive law or choice of law rules). Thus, do not use renvoi unless the forum's choice of law rules require it. 2) In the United States, choice of law rules have three sources, generally in the following priority: First, specific choice of law statutes, unless the forum allows the statutory choice of law to be superseded by a contractual choice of law;6 second, contractual choice of law agreements, if the forum allows them; third, general choice of law rules usually governed by forum common law, such as the most significant relationship test used in Texas courts. These three choice of law sources are subject to preemption by constitutional rules and potentially by international law rules, both of which are part of forum law.
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