Choice of Law in Ohio: Two Steps Routinely Missed

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

Ohio\u27s Modern Courts Amendment Must Be Amended: Why and How

A 1968 amendment to the Ohio Constitution granted the Supreme Court of Ohio the authority to promulgate “rules governing practice and procedure” for Ohio courts. The amendment also provided that “[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect” and that no rule may “abridge, enlarge, or modify any substantive right.” Although the amendment was explicit about automatic repeal of existing laws, it says nothing about whether the General Assembly may legislate on a procedural matter after a court rule takes effect. That silence has caused enduring confusion. Since 1968, the Supreme Court of Ohio has considered dozens of cases in which a court-promulgated rule appears to conflict with a subsequently enacted statute. The court has reached two views on whether later-enacted statutes that conflict with existing court rules are constitutional. One holds that, because the constitution grants rulemaking authority exclusively to the court, the General Assembly has no authority once the court promulgates a procedural rule. It has also held the opposite: the General Assembly may legislate on a procedural matter already addressed in a court rule if the legislature intends to remake that “matter of practice or procedure” into a “substantive right.” These contradictory interpretations cannot both be right, yet each remains controlling precedent in Ohio. Neither of the court’s contradictory rulings rests on a cogent textual analysis of the 1968 amendment. This failing, however, is no reflection on the court. A definitive resolution of the conflicting interpretations is impossible because the sparse language of the amendment simply does not contain enough textual foundation from which to derive a compelling, permanent answer—one way or the other. The authors propose an amendment that would add language to the 1968 amendment. By providing a textual basis for the court’s second interpretive ruling, it would make clear and permanent the legislature’s authority to share in the process of forming court rules. It would align Ohio’s rulemaking process with Congress’s participation in rulemaking for federal courts and with the large majority of states that preserve for their legislatures at least some participation in forming the content of rules of practice and procedure