The Dead Hand of the Past in Oregon Choice of Law

Document Type

Article

Publication Title

Lewis & Clark Law Review Online

Journal Abbreviation

Lewis & Clark L. Rev. Online

Abstract

This Essay considers the reception of Oregon’s choice-of-law statutes in Oregon state and federal court.

First, this Essay discusses the reception of the choice-of-law-statutes for torts and contracts. For many years, federal courts ignored these statutes and continued to apply superseded common law choice-of-law doctrine. Published state court opinions typically misapply the statutes, perhaps on the assumption that they simply codified the common law, when in fact the statutes are a deliberate departure from the common law. To make matters worse, several state and federal court decisions explicitly use common law doctrines as default rules when applying the statutes, even though the statutes reject the common law approach entirely.

Next, this Essay examines Oregon’s difficult relationship with the Uniform Conflict of Laws-Limitations Act (UCLLA). Most state and federal court decisions that apply Oregon’s version of the UCLLA do so badly, with little or no understanding of how the statute is supposed to work.

The central argument of this Essay is that Oregon’s state and federal courts should pay better attention to the statutes that they are applying. Courts should be applying these statutes in a manner that is faithful to their text and purpose. Proper application of the statutes will require judges to depart from older and ingrained habits of choice-of-law thinking and to give up the freewheeling discretion associated with those habits.

First Page

1

Last Page

32

Publication Date

Summer 2019

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