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Abstract

At last tally, courts in fewer than half of the states look to the Restatement (Second) Conflict of Laws for any part of their choice-of-law rules. Ohio, however, is in the minority that does. In fact, Ohio has endorsed the Restatement (Second) with surprising enthusiasm. The Supreme Court of Ohio took the unusual step of announcing in 1984 and again in 2007 that it has “adopted” the Restatement (Second) “in its entirety” for resolution of all conflict-of-law questions that arise in this state.

Despite the court’s wholesale endorsement of the Restatement (Second), the courts of Ohio—including the supreme court itself—do not follow the entire process that the Restatement (Second) sets out for deciding choice-of-law questions. Typically, they miss two steps.

In general, the Restatement (Second) prescribes a three-step process that the forum court is to follow in making a choice of law. The second and third steps are the focus of this Article. In the second step, the forum court must identify the states having any contact with the dispute and select which state among them that has the most compelling interest in having its law applied in resolving the controversy.

If the court in executing step two identifies a foreign state as having the most compelling interest, the Restatement (Second) instructs the forum court to then decide just how much of that foreign state’s law it will apply. This third step is described in § 8. Is it the whole law of that foreign state—including that state’s choice-of-law rules and principles—that will be applied? Or is it only the substantive provisions of that state’s law—its local law—that will be applied? The choice that § 8 sets forth is an important step in the choice-of-law analysis because how which alternative the court selects may have the effect of either encouraging forum-shopping or discouraging it.

Courts routinely miss important aspects of both steps. This Article discusses why they do. The focus, however, will be primarily on the third step and why courts routinely end up ruling in ways that encourage forum-shopping.

The Article concludes by demonstrating that, when an Ohio court decides that the law of a foreign state is to be applied, Ohio’s longstanding policy against forum-shopping requires it to apply the whole law of that foreign state, not just the local law. It must do so because only by applying the whole law of that state will the Ohio court apply exactly the same law that the court in the foreign state would apply if the case had been filed there and thus eliminates a primary incentive to forum-shop.

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