People and place as norms in multistate tort adjudication
Creators: name: Grattan, Donald Scott
Publisher: name: University of British Columbia
Year: 2009

description: An action in tort which is brought in one state ("forum"), but is based on events which occurred in another state ("locus state"), can be styled a "multistate tort". States have developed "choice of law" rules to deal with such disputes. These rules select a law or body of law from either the forum's own legal system, or the legal system of another state, which is used to adjudicate the dispute. A range of choice of law rules have been developed at various times by the courts in the United States, England, Canada and Australia in order to select the "dispositive" law in multistate tort disputes. Although there are profound differences in the content and operation of these rules, they universally make reference to either or both of two specific concepts. The first of these is the concept of "people", that is, the parties' membership of particular political communities constituted by states. The second is the concept of "place", that is, the location of the parties' acts within particular states. The paper examines the function played by the concepts of people and place in shaping the significant common law developments in multistate tort choice of law which have taken place in England, Canada and Australia. In order to provide a theoretical context for this, the paper analyses the various choice of law methodologies which have been employed in the United States: multilateralism; unilateralism and the substantive law method. In order to "unpack" the significance of the concepts of people and place in these methodologies, the methodologies are subjected to classification in terms of various dichotomies; jurisdiction-selection/rule-selection; spatially-informed/substantively-informed function; and externally-generated/internally-generated norms. From this analysis it is concluded that the function performed by the concepts of people and place in the methodologies is either the role of effecting the interests of the states connected to multistate disputes, or ensuring the fair treatment of the parties to those disputes. The paper then goes on to map the common law developments in the English, Canadian and Australian courts in respect of multistate tort choice of law from a common doctrinal starting point, dominated by the application of forum law, to disparate choice rules. It is noted that in the first period of reform, the concepts of people and place were each used in order to diminish the importance of the law of the forum qua forum. However, the most recent developments in Canada and Australia show a domination of the concept of place over that of people, evidenced by the inflexible application of the law of the locus state. This has been justified on the basis of giving effect to state interests. It is concluded that the triumph of place over people cannot be persuasively explained in terms of state interests. If effecting state interests is the desired end of the choice of law process, then the concept of people must also be taken into account. It is argued that the inflexible application of locus law can more successfully be justified in terms of the fair treatment of the parties. However, in this respect too, the concept of people, as well as that of the "person" (an individual who deserves to be treated with substantive fairness), should not be forgotten.