Law Commons^™

"Are We There Yet?": Towards A New Rule For Choice Of Law In Tort, Janet Walker

Osgoode Hall Law Journal

The Supreme Court's effort to establish certainty in this area by basing a firm rule on a clear theory has failed. The intention was laudable but the proposed theory bore little relation to the courts' adjudicative concerns; and the rule sometimes produced injustice, prompting courts to circumvent it. This article considers the brief history of choice of law in tort and recent developments in common law and civil law jurisdictions, and suggests a new theory and a new rule (based on principles of tort law rather than public international law) which are likely to increase certainty by promoting fairness.