Creative, but no go

Adventures in choice of law: an appeals court swats down an attempt to apply liberal Illinois law to an accident on the road in Indiana. A lower court had gone along with the idea. [Cook County Record]


  • What makes the Illinois law “liberal.” Certainly, the law can be more plaintiff-friendly, but I am unsure that means it is more or less liberal (or more or less conservative).

  • “Liberal” as in “loose, unbound by traditional forms or orthodoxy, acting/behaving in a way which is not traditional or widely accepted”.

    For instance, when I travel out of my current home state of Texas, I expect to be bound by the laws of whatever state I happen to have traveled to for my activities there. Should I make a purchase, I expect that purchase to be governed by that state’s U.C.C., not Texas’. If I am injured in some fashion, I expect the laws of the place of injury will likely control. Illinois, like California, is traditionally “liberal” in its willingness to extend its policy choices to out of state injuries, often based on little (or nothing) more than plaintiff’s choice of an Illinois courtroom to bring the suit. Texas, I am sad to say (particularly in its “rocket docket” for patent litigation), has had a similar reputation until just recently.

    Or so I understood Mr. Olson’s choice of the word “liberal” to mean in this context. Hope that’s helpful.

  • Carlitguy,

    I don’t think so. You are talking about choice of law. You are not talking about the substantive law. I think Mr. Olson was referring to the substantive law when suggesting Illinios’s was more liberal than Indiana’s.

    FWIW, I think the decision shows that Illinois’s choice of law would be similar to what you would choose in this particular case.

  • Allan is right. I was referring to Illinois’ substantive law as likely to result in higher damages than Indiana’s. I agree that “liberal” is an imprecise shorthand at best. In this case it was influenced by the sense of “liberal” as “open-handed with money” which is distinct from, and I believe was in use before, the word’s strictly political sense (which as we know is itself shifting and ambiguous).

  • Allan, in this case I think the two issues, Choice of Law and Substantive Law, are wrapped up in one larger mess. First, Illinois choice of law jurisprudence is more “liberal” than many other states, and second, their substantive law (at least in this instance) is more “liberal” in terms of burden of proof, allowable damages, apportionment of fault, joint and several liability, etc than the law of the place where the accident occurred.

    FWIW, your suggestion that I would selfishly choose whichever body of law was best for me in that moment and under those circumstances may well be accurate for the majority of individuals. I do not advocate for such a “me first” attitude. It does not reflect the policy choices of society as a whole, who has chosen (at least, in theory) to operate as a nation of laws, not of men. What makes my rights superior to that of the rights of the Indiana residents involved in the governance of their roadways, or the South Carolina driver who chose to operate his vehicle in Indiana, or the Michigan companies whose business included the use of those Indiana roadways? Why would any of them have any reason to expect to find themselves judged by Illinois law when they took to the roadways?

    Humans have thousands of years experience demonstrating the dangers of operating as a society of men rather than that of law, particularly to those such as myself who do not normally find themselves carrying the biggest stick. Sometimes, that means society has chosen for itself a policy I do not care for – my remedy is to advocate for a change in that policy, not a personal exception by way of an extra-territorial expansion of local governance into wherever I happen to be travelling, with the attendant off-loading of the costs of my local government’s policy choices onto unwitting others who had neither notice, nor opportunity, to influence those choices?

  • My other remedy to society adopting polices I disagree with, of course, is to “vote with my feet” by relocating to an area of local governance more agreeable to me.

  • and I misunderstood the word “liberal” in this context. My bad.

  • CarLitGuy,

    I think you misunderstood. I did not mean to imply that you would choose a substantive law that was best for you simply because you liked that law better. My intention was to say that the Illinois choice of law decision is consistent with the choice of law theory that you propose.

    Is the Illinois choice of law more liberal than Indiana’s? I have no idea. I do not even know what that would mean. Maybe, in the choice of law context, “conservative” would mean to apply the law of one’s jurisdiction (come Hell or high water), while “liberal” would mean to go out of one’s way to apply the law of another jurisdiction (although that does not make much sense).

    Perhaps in the damages context, “conservative” would mean to shield tortfeasors from the monetary costs of their tortfeasance, while “liberal” would mean to allow tort victims to use any cockamamie theory to go after any deep-pocket defendant they wanted. I think that would comport with the conservative ideology to let those who earn keep what they earn and the liberal thought that we should have a more equal distribution of wealth. Or maybe not.

    I am unsure how libertarian theory would address either question. Communist theory would be easy: let the State pay for the damages (but since it owns the business and runs the courts, the victim would get screwed).
    I wonder if anyone has written a law review article on this.

  • Thank you Allan, its been an enjoyable and educational exchange, in spite of my misunderstandings. And yes, the Illinois appellate court did ultimately rule under the choice of law theory I advocate for, which most would probably characterize as “conservative”. I was fixated on the more “liberal” choice of law decision made by the Illinois trial court, and focused my attention there – since Illinois substantive law choices wouldn’t even come into play unless the Illinois trial court first chose Illinois law as controlling over the Indiana accident.

    Apologies for all the confusion I injected into the conversation.

  • I know this is NOT how things work, but maybe it should:

    Since there was a settlement for $100k with the driver that really triggered everything, why not use that number to set the scale for other liability?

    If the trial ends up saying that Kallis was 80% responsible, then all other defendants are on the hook for the last 20% based on that that initial figure. Or $25K.