united-states conflict-of-laws
How can US lawyers deal with the difference in the laws of at least 62 US jurisdictions?
<p>US has 50 states, 12 Federal Circuits (11 is DC Circuit, 12 is the <a href="https://www.justice.gov/usao/justice-101/federal-courts" rel="nofollow noreferrer">Federal Circuit Court of Appeals that has a nationwide jurisdiction over very specific issues such as patents</a>. This totals at least 62 jurisdictions, and that's before even getting to county or city laws.</p>
<p>Let's pick a legal subject that's covered by state law but that can cross states...like <a href="https://millerlawpc.com/difference-state-federal-courts/" rel="nofollow noreferrer">contract law</a>, where you might have an offeror and offeree from different states. How can contract lawyers know 62 jurisdictions of contract law?</p>
<p>Imagine the client lives in California and his company is headquartered in New York with a subsidiary in Maine. Client retains New York law firm, because they think New York has the most prestigious law firms with T10 law school lawyers. Defendant 1 is in Alaska, Defendant 2 is in Idaho, and Defendant 3 is in Wyoming. Their New York lawyer doesn't know Alaska, Idaho, Maine, or Wyoming contract laws. Must the client pay the lawyer to teach themselves Alaska, Idaho, Maine, and Wyoming contract law?</p>
<p>I stopped my example at three defendants, but what if you had more Defendants, each in different states?</p>
<blockquote>
<p>Second, you must identify the proper jurisdiction, given the facts in your case. The law is different in different jurisdictions. State law varies: California law differs from New Mexico law. The law even varies in different federal circuit court jurisdictions: the law of the First Circuit differs from the law of the Eleventh Circuit. Because the purpose of the first year of law school is to understand legal concepts, not to understand the law of any particular jurisdiction, you will read cases from all over the country. In Torts you might read cases from California, New Hampshire, and New York. In Civil Procedure you may read cases from the United States Supreme Court that apply to federal courts across the country, but you also will read cases from different circuit and district courts.</p>
<p>When you research a problem for a client, you must research the law of the particular jurisdiction or jurisdictions that will govern your facts. More than one jurisdiction may have authority over your case. If a client comes to you because her apartment is infested with bedbugs, you must first determine which jurisdiction’s law applies to the problem. Because landlord-tenant law is usually a question of state law, you would probably start by researching the law of the state where the apartment is located. If the client is renting an apartment with federal subsidies, federal statutes might affect the parties’ rights and responsibilities. For some problems, you should also investigate whether county or city laws add to or modify the parties’ rights.</p>
</blockquote>
<p><a href="https://www.westacademic.com/Bahrych-Merino-and-McLellans-Legal-Writing-and-Analysis-in-a-Nutshell-5th-9781634602815" rel="nofollow noreferrer">Bahrych, et al., <em>Legal Writing and Analysis in a Nutshell</em> at 163 (5th ed. 2017)</a>.</p>

<p>It's virtually never going to be as complex as you're imagining.</p>
<p>First, because in the vast majority of cases, the vast majority of lawyers will only be dealing with one body of law: either federal law or the law of the state in which they practice. A lawyer in Maine, for example, is likely to deal almost exclusively with contracts, torts, crimes, etc. that are controlled only by the laws of the United States or Maine.</p>
<p>In the vast majority of the remaining cases, lawyers will only be dealing with two bodies of law: those of their home state and federal law. There may be conflicts between the two, but the law has developed a variety of doctrines for determining which rules control -- most notably the <a href="https://en.wikipedia.org/wiki/Erie_doctrine" rel="nofollow noreferrer"><em>Erie</em> Doctrine</a> -- and they will have learned both bodies of law before passing the bar.</p>
<p>And even when there are multiple parties from multiple jurisdictions, the lawyers will still rarely need to know the substantive law of more than one. To use your example, a contract dispute involving parties from multiple states will rarely require a lawyer to understand the contract law of every jurisdiction involved. Before the court ever gets to interpreting the contract, it will first consider the &quot;choice of law&quot; question, meaning that it must determine which state's laws control the contract.</p>
<p>Once that question is answered, the court will proceed to determine the questions of formation, breach, and damages using the laws of the jurisdiction it has selected. So in your hypothetical, the court may conclude that because the contract was signed in New York, New York law controls. So it applies New York law, and the other states' laws become largely irrelevant.</p>
<p>Second, the choice-of-law question may not even come up, because well-drafted contracts will include a choice-of-law provision, where the parties simply agree that the contract should be interpreted using the laws of California, or New York, or Delaware, or wherever.</p>
<p>Third, even when there is a need to apply the law of multiple jurisdictions, it is often not as difficult as you're imagining, because so much of law is largely harmonized across the states. Much of the work in this area is spearheaded by the <a href="https://www.uniformlaws.org/home" rel="nofollow noreferrer">Uniform Law Commission</a>, which has drafted widely adopted legislation governing, for example, <a href="https://www.uniformlaws.org/committees/community-home?CommunityKey=403dd218-8f13-42e2-97b8-d630cd775eba" rel="nofollow noreferrer">sales of goods</a>, <a href="https://www.uniformlaws.org/committees/community-home?CommunityKey=16b9e44b-f2c5-4210-99c3-78e7d3fe985f" rel="nofollow noreferrer">leases</a>, <a href="https://www.uniformlaws.org/committees/community-home?CommunityKey=3de47325-e364-4bb8-a3e8-44b6be55a58b" rel="nofollow noreferrer">negotiable instruments</a>,<a href="https://www.uniformlaws.org/committees/community-home?CommunityKey=079dcea1-5d92-4dba-b079-59bc5a4db105" rel="nofollow noreferrer">bank deposits</a>, <a href="https://www.uniformlaws.org/committees/community-home?CommunityKey=26d6f8ad-5b3c-497b-b54e-63e5e9ec560d" rel="nofollow noreferrer">letters of credit</a>, <a href="https://www.uniformlaws.org/committees/community-home?CommunityKey=9893636e-0046-498a-8ed9-3d57c192489a" rel="nofollow noreferrer">title documents</a>, <a href="https://www.uniformlaws.org/committees/community-home?CommunityKey=f93a92b2-020f-4bfa-880b-5f80d24d018d" rel="nofollow noreferrer">investment securities</a>, <a href="https://www.uniformlaws.org/committees/community-home?CommunityKey=6317f73b-badb-47b2-8a5a-58ee62032ba1" rel="nofollow noreferrer">secured transactions</a>, <a href="https://www.uniformlaws.org/committees/community-home?CommunityKey=193ff839-7955-4846-8f3c-ce74ac23938d" rel="nofollow noreferrer">trusts</a>, <a href="https://www.uniformlaws.org/committees/community-home?CommunityKey=3a2538fb-e030-4e2d-a9e2-90373dc05792" rel="nofollow noreferrer">trade secrets</a>, <a href="https://www.uniformlaws.org/committees/community-home?CommunityKey=52456941-7883-47a5-91b6-d2f086d0bb44" rel="nofollow noreferrer">partnerships</a>, <a href="https://www.uniformlaws.org/committees/community-home?CommunityKey=4cc1b0be-d6c5-4bc2-b157-16b0baf2c56d" rel="nofollow noreferrer">child custody</a>, and <a href="https://www.uniformlaws.org/committees/community-home?CommunityKey=a0ad71d6-085f-4648-857a-e9e893ae2736" rel="nofollow noreferrer">arbitration</a>.</p>
<p>Undoubtedly, there are occasions where strange circumstances or bad legal advice lead to incredibly thorny procedural questions about choice of law, but only a very small share of lawyers will need to know many seriously divergent bodies of substantive law from multiple jurisdictions, and even then, it will likely be limited to two or three jurisdictions at the most.</p>

<h2>They don’t</h2>
<p>A lawyer registers in those jurisdictions they wish to practice in. Further, many lawyers, particularly those that operate across multiple jurisdictions, specialise in the area of law.</p>
<p>If a client approaches a lawyer in private practice with a matter they are unable or unwilling to deal with they say “Thanks but no thanks.”</p>
<p>If in-house counsel is asked by their boss, their correct response is “We’re going to need an outside expert on this”.</p>
