Hobbes & Hanging: Personal Jurisdiction v. Choice of Law

When conduct in one state causes injury in another state, and the law at the place of injury is more favorable to the victim than the law of the place of conduct, what law applies? Where can suit be brought? The traditional answers are that the law of the place of injury applies but that it may be unconstitutional to sue the tortfeasor in the courts at the place of injury because all the tortfeasor’s conduct took place outside the forum. Scholars have long criticized this contradiction, and this Article argues that they are right to do so. If we focus on choice-of-law theory and the emerging choice-of-law rules in the Third Restatement of Conflict of Laws, we see that the argument for applying the plaintiff-protecting law of the place of injury is strong. This Article explains and develops that argument, and it gives us reason to reject the idea that the place of injury courts have no personal jurisdiction over the defendant. Hobbes taught us that the first job of government is to protect us from harm at the hands of others and, as long as it is objectively foreseeable that the conduct could have caused harm in the place of injury, there is no fundamental unfairness or constitutional prohibition on applying place of injury law. If that is so, it is irrational not to allow victims to sue at home where they have been injured. Nor is personal jurisdiction unfair to the defendant. It is time to bring choice-of-law doctrine and personal jurisdiction law more in line with each other, and the right way to do so is to adopt an approach that ensures that victims have civil recourse in their home courts against those who stand across the border engaged in acts that intentionally or predictably cause harm there.