Issue-by-Issue Analysis and Dépeçage in Choice of Law:

Cause and Effect *

By
Symeon C. Symeonides **

To be published in
45 THE UNIVERSITY OF TOLEDO LAW REVIEW (2013)
Copyright by author

I. INTRODUCTION: FROM BROAD CATEGORIES TO “ISSUES”

One of the many flaws of the choice-of-law rules of the first
Conflicts Restatement was their excessive breadth. Indeed, some of
those rules encompassed entire courses of the law school curriculum,
such as torts, contracts, and successions. For example, the Restate-
ment provided only one rule (lex loci delicti) 1 for all aspects of, or is-
sues in, a tort conflict, and only one rule (lex loci contractus) for all
issues of contract formation and validity. 2 Section 332 of the Restate-
ment provided that the law of the place of contracting determined,
inter alia, the issues of: (a) capacity to contract; (b) the necessary
form; (c) the need for mutual assent or consideration; and (d) fraud,
illegality, and any other ground of invalidity. 3
Such a broad rule as Section 322 assumed that each of the
above issues involved the same choice-of-law considerations and thus
the application of the same law (the lex loci contractus) was equally
appropriate for any one and all of them. Whenever this assumption
*
This essay is dedicated to Professor William M. Richman with admiration for his invalua-
ble contributions to American conflicts law. Richman is a gifted teacher, a prolific writer, a
profound and independent thinker and original theorist, as well as an all-around “great
guy” who has earned the affection of all us laboring in this field. It has been a blessing and
a privilege to be one of his numerous friends around the country.
**
Alex L. Parks Distinguished Professor of Law and Dean Emeritus, Willamette University
College of Law; LL.B. (Priv. L.), LL.B. (Public L.), LL.M., S.J.D., Ph.D.h.c.; Member, Institut
de Droit International.
1
See AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW OF CONFLICT OF LAWS § 378 (1934)
[hereinafter Restatement]. In fact, the Restatement contained several sections designating
the law applicable to different aspects of a tort. See id. §§ 379–390. However, with minor
exceptions, all of those sections dictated the application of the same law—the law of the
place of injury.
2
The Restatement provided a second rule (lex loci solutionis) for all issues of performance.
See Restatement § 358.
3
Restatement § 332.

Electronic copy available at: http://ssrn.com/abstract=2356657

 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

proved inaccurate, the rule failed to produce an apt solution to the

conflict at hand. Indeed, these broad rules were inimical to flexibility
and aptness because they required courts to make wholesale choices
rather than narrow choices tailored to the needs of individual cases.
The excessive breadth of these rules was one of the reasons for
the American choice-of-law revolution. 4 In the seminal case Babcock
v. Jackson, 5 which marked the beginning of the revolution in tort con-
flicts, the New York Court of Appeals asked an important question:
Whether the lex loci delicti should “invariably govern the availability
of relief for the tort[.]” 6 The court ultimately answered this question
by concluding that the governing law should be the law of the state
which, “because of its relationship or contact with the occurrence of
the parties, ha[d] the greatest concern with the specific issue raised in
the litigation.” 7
II. ISSUE-BY-ISSUE ANALYSIS
The italicized words in the above-quoted phrases illuminate
one important feature of the court’s approach: “issue-by-issue analy-
sis.” The word “invariably” suggests that the court did not seek a
wholesale abandonment of the lex loci delicti rule, but rather sought
to narrow its scope to the particular issue on which the laws of the in-
volved states actually conflicted. The court no longer thought in
broad, global terms, such as what law should govern the tort as a
whole. As the court noted, “there is no reason why all issues arising
out of a tort claim must be resolved by reference to the law of the
same jurisdiction.” 8 In Babcock, the conflict was confined to a single
issue—the driver’s immunity from suit because of the Ontario guest-

4
For a documentation and discussion of this movement, see SYMEON C. SYMEONIDES, THE
AMERICAN CHOICE-OF-LAW REVOLUTION: PAST, PRESENT, AND FUTURE (2006) [hereinafter
Symeonides, REVOLUTION].
5
191 N.E.2d 279 (N.Y. 1963). Babcock involved an intrastate tort, a single-car accident,
which occurred in the Canadian province of Ontario, but in which both the defendant
driver and his injured passenger, the plaintiff, were domiciled in New York. Ontario had a
“guest statute,” which would bar the passenger’s action because of her status as a gratui-
tous guest in the defendant’s car. The court refused to apply that statute and instead ap-
plied New York law, which allowed the action.
6
Id. at 280–81.
7
Id. at 283 (emphasis added).
8
Id. at 285
2

Electronic copy available at: http://ssrn.com/abstract=2356657

 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

statute, and the absence of such an immunity rule in New York. 9 The
court concluded that the state that had the “greatest concern” with
regard to that issue was not the state of the tort, Ontario, but rather
the state in which both parties were domiciled and had established
their relationship, New York.
Since Babcock, this mode of thinking, now known as issue-by-
issue analysis, has become an integral feature of all the approaches
produced by the choice-of-law revolution and followed in the more
than 40 states that have abandoned the first Restatement in tort and
contract conflicts. 10 This is true of Brainerd Currie’s “governmental
interest analysis,” 11 which had influenced the Babcock court, but espe-
cially of the approach of the Restatement (Second), which is now fol-
lowed in the plurality of states. Virtually all of the Restatement (Sec-
ond)’s rules call for the application of the law of the state that, “with
regard to the particular issue,” has the “most significant relationship.”
For example, section 145 provides that the parties’ rights and liabilities
“with respect an issue in tort” are governed by the law of the state
that, “with respect to that issue,” has the most significant relationship
to the occurrence and the parties.” 12 The accompanying comments re-
iterate that “[e]ach issue is to receive separate consideration if it is
one which would be resolved differently under the local law rule of
two or more of the potentially interested states.” 13

9
See id. at 284 (“The issue here . . . is not whether the defendant offended against a rule of
the road prescribed by Ontario for motorists generally or whether he violated some stand-
ard of conduct imposed by that jurisdiction, but rather whether the plaintiff, because she
was a guest in the defendant’s automobile, is barred from recovering damages for a wrong
concededly committed.”).
10
According to the latest count, only ten states follow the first Restatement in tort conflicts
and twelve do so in contract conflicts. See Symeon C. Symeonides, Choice of Law in The
American Courts in 2012: Twenty Sixth Annual Survey, 61 AM. J. COMP. L. 217, 279 (2013). For
torts conflicts, these states are: Alabama, Georgia, Kansas, Maryland, New Mexico, North
Carolina, South Carolina, Virginia, West Virginia, and Wyoming. For contract conflicts,
these starts are: Alabama, Florida, Georgia, Kansas, Maryland, New Mexico, Oklahoma,
Rhode Island, South Carolina, Tennessee, Virginia, and Wyoming. The remaining states
follow: (1) the Restatement (Second) (24 states in torts and 23 in contracts); (2) the “better-
law” approach (5 states in torts and 2 in contracts); (3) a “significant contacts” approach (3
states in torts and 5 in contracts); (4) interest analysis (2 states in torts); (5) the “lex fori”
approach (2 states in torts); and (6) a “combined modern” approach (6 states in torts and 10
in contracts). See id.
11
See generally BRAINERD CURRIE, SELECTED ESSAYS ON THE CONFLICT OF LAWS (1963).
12
AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW SECOND: CONFLICT OF LAWS 2D § 145
(1971) [hereinafter Restatement (Second)].
13
Restatement (Second) § 145 cmt. d.
3
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

Likewise, all of the Restatement (Second)’s myriad escape

clauses are tightly tied to the “particular issue.” For example, all ten of
the Restatement sections that designate the law governing different
types of torts conclude with the following escape clause: “unless, with
respect to the particular issue, some other state has a more significant
relationship.” 14 This clause is one of the most repeated phrases in the
entire Restatement. 15
Professor Willis Reese, the drafter of the Restatement (Second),
stated that issue-by-issue analysis was one point on which all diver-
gent approaches that emerged from the American choice-of-law revo-
lution could agree:
Amid the chaos and tumult of choice of law, there is at
least one point on which there seems to be general agreement
in the United States. This is that choice of applicable law
should frequently depend upon the issue involved. The search
in these instances is not for the state whose law will be applied
to govern all issues in a case; rather it is for the rule of law that
can most appropriately be applied to govern the particular is-
sue. 16
Issue-by-issue analysis is one of the few true achievements of
choice-of-law thinking in the United States. It is based on the elemen-
tary realization that, in many cases, the conflict is confined to only
one or less than all issues in a case, and that the involved states may
be interested in different issues. 17 Consequently, rather than seeking
to choose a law as if all aspects of the case are contested, one should
focus on the narrow issues with regard to which a conflict actually ex-
ists and proceed accordingly. This mode of analysis is a welcome re-
14
For example, in an action for an invasion of privacy, the applicable law is the local law of
the state where the invasion occurred, “unless, with respect to the particular issue, some
other state has a more significant relationship.” Restatement (Second) § 152.
15
See, e.g., id. §§ 146–151, 153–155, 175. In contract conflicts, the “unless” clause appears in
most of the sections devoted to particular contracts. See, e.g., id. §§ 189–193, 196.
16
Willis L. M. Reese, Dépeçage: A Common Phenomenon in Choice of Law, 73 COLUM. L.
REV. 58, 58 (1973).
17
See Simon v. Philip Morris Inc., 124 F. Supp. 2d 46, 75 (E.D.N.Y. 2000) (“[I]n a single ac-
tion different states may have different degrees of interests with respect to different opera-
tive facts and elements of a claim or defense.”); In re Aircrash Disaster Near Roselawn, Ind.
on Oct. 31, 1994, 926 F. Supp. 736, 740 (N.D. Ill. 1996) (“[I]t is important to understand that
the search for the applicable law is not a general one, but rather it is one that takes proper
notice of the fact that the significance of a state’s relationship to a particular aviation disas-
ter may vary as a function of the particular issue presented.”).
4
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

turn to the familiar schemes of common law decision-making, which

typically proceeds with small, cautious steps of inductive reasoning.
Issue-by-issue analysis is more conducive to a nuanced, individual-
ized, and thus more rational, resolution of conflicts problems. 18
The two American choice-of-law codifications—Louisiana’s and
Oregon’s—as well as of the Puerto Rico draft codification, have taken
this lesson to heart. They have compressed the revolution’s experi-
ence into flexible statutory rules directed at narrow issues. For exam-
ple, in contract conflicts, the three codifications provide separate
choice-of-law rules for issues of form, 19 capacity, 20 and consent. 21 They
also provide that the judicial search for the law applicable to any oth-
er issue must focus on “that issue.” 22 In tort conflicts, the Louisiana
codification and the Puerto Rico draft codification have different
choice-of-law rules for issues of “conduct regulation” and issues of
“loss distribution,” respectively. 23

18
Arthur T. von Mehren, Special Substantive Rules for Multistate Problems: Their Role and
Significance in Contemporary Choice of Law Methodology, 88 HARV. L. REV. 347, 356 n.24
(1974) (“Th[is] technique permits a more nuanced handling of certain multistate situations
and thus forwards the policy of aptness.”).
19
See LA. CIV. CODE ANN. art. 3538 (2012); OR. REV. STAT. § 15.325 (2013); Puerto Rico draft
codif. art. 32. The Puerto Rico draft code is available at http://www.codigocivilpr.net/. See
PROYECTO DE LEY PARA LA REVISIÓN Y REFORMA DEL CÓDIGO CIVIL DE PUERTO RICO, LIBRO SÉP-
TIMO (DERECHO INTERNACIONAL PRIVADO), por Symeon Symeonides, 25 de mayo 2002. For a
discussion by its drafter, see Symeon C. Symeonides, Codifying Choice of Law for Contracts:
The Puerto Rico Projet, in LAW AND JUSTICE IN A MULTISTATE WORLD: ESSAYS IN HONOR OF
ARTHUR T. VON MEHREN 419 (J. Nafziger & S. Symeonides eds., 2002). For a discussion of the
Oregon codification, see Symeon C. Symeonides, Oregon’s Choice-of-Law Codification for
Contract Conflicts: An Exegesis, 44 WILLAMETTE L. REV. 205 (2007); Symeon C. Symeonides,
Oregon’s New Choice-of-Law Codification for Tort Conflicts: An Exegesis, 88 OR. L. REV. 963
(2009).
20
See LA. CIV. CODE ANN. art. 3539 (2012); OR. REV. STAT. § 15.330 (2013); Puerto Rico draft
codif. art. 33
21
See OR. REV. STAT. § 15.335 (2013); Puerto Rico draft codif. art. 34.
22
See LA. CIV. CODE ANN. art. 3537 (2012) (“[T]he law of the state whose policies would be
most seriously impaired if its law were not applied to that issue.”); OR. REV. STAT. § 15.360
(2013) (“[T]he law . . . that is the most appropriate for a resolution of that issue.”); Puerto
Rico draft codif. art. 30 [year] (“[T]he law of the state which, with regard to the issue in
question, has the most significant connection”).
23
See LA. CIV. CODE. ANN. arts. 3543–3544 (2012); Puerto Rico draft codif. arts. 40–41. For a
discussion of the Louisiana codification by its drafter, see Symeon C. Symeonides, The Con-
flicts Book of the Louisiana Civil Code: Civilian, American, or Original?, 83 TUL. L. REV. 1041
(2009); Symeon C. Symeonides, Louisiana’s New Law of Choice of Law for Tort Conflicts: An
Exegesis, 66 TUL. L. REV. 677 (1992).
5
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

Foreign codifications do not use the word “issue.” Indeed, they

officially disapprove of a judicial issue-by-issue analysis. Nevertheless,
the vast majority of these codifications engage in legislative issue
splitting by, for example, providing different choice-of-law rules for
certain aspects of a contract, such as form, capacity, performance, and
substantive validity. 24 Thus, the notion that the applicable law may
differ depending on which aspect of a contract presents a conflict of
laws is not uniquely American.
II. DÉPEÇAGE
1. What Is Dépeçage?
Issue-by-issue analysis means that, if a case (or, more precisely,
a cause of action) comprises more than one issue on which the sub-
stantive laws of the involved states conflict, each issue should be sub-
jected to a separate choice-of-law analysis. If such an analysis leads to
the application of the substantive laws of different states to the differ-
ent issues, then the resulting phenomenon is called dépeçage. 25 Thus,
dépeçage is the application of the substantive laws of different states
to different issues of the same cause of action. 26 It is a possible but not
inevitable by-product of issue-by-issue analysis.
Because Babcock was a single-issue conflict, the court did not
need to resort to dépeçage in the sense of actually applying the laws of
two different states. But the court clearly signaled its readiness to en-
gage in dépeçage by stating in dictum that it would have applied On-
24
For comprehensive documentation and discussion of legislative issue-splitting and dé-
peçage in foreign choice of law codifications, see SYMEON C. SYMEONIDES, CODIFYING CHOICE
OF LAW AROUND THE WORLD: AN INTERNATIONAL COMPARATIVE ANALYSIS, ch. 5 (forthcoming
2014).
25
The word is French and literally means the “dismemberment” of the case. This French
term has come to prevail in American legal literature, although some French writers use
the term morcellement. See 2 HENRY BATIFFOL & PAUL LAGARDE, DROIT INTERNATIONAL PRIVÉ
273 (8th ed. 1983). But see BERNARD AUDIT & LOUIS D’AVOUT, DROIT INTERNATIONAL PRIVÉ
125, 288 (6th ed. 2010) (using the term dépeçage and décomposition, repectively). For Amer-
ican articles on dépeçage, see Christopher G. Stevenson, Note, Dépeçage: Embracing Com-
plexity to Solve Choice-of-Law Issues, 37 IND. L. REV. 303 (2003); Alan Reed, Essential Validi-
ty of Marriage: The Application of Interest Analysis and Dépeçage to Anglo-American Choice
of Law Rules, 20 N.Y.L. SCH. J. INT’L & COMP. L. 387 (2000); Reese, supra note 16; Christian L.
Wilde, Dépeçage in the Choice of Tort Law, 41 S. CAL. L. REV. 329, 329 (1968). For dépeçage
in arbitration, see Craig M. Gertz, Comment, The Selection of Choice of Law Provisions in
International Commercial Arbitration: A Case for Contractual Dépeçage, 12 NW. J. INT’L L. &
BUS. 163 (1991); Veijo Heiskanen, Forbidding Dépeçage: Law Governing Investment Treaty
Arbitration, 32 SUFFOLK TRANSNAT’L L. REV. 367 (2009).
26
The italicized terms are explained at text accompanying note 39, infra.
6
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

tario law “had the issue related to the manner in which the defendant
had been driving his car at the time of the accident . . . [or to] the de-
fendant’s exercise of due care.” 27
Through this dictum, the court enunciated an important dis-
tinction between: (1) issues of conduct regulation, such as “whether
the defendant offended against a rule of the road prescribed by On-
tario for motorists generally or whether he violated some standard of
conduct imposed by that jurisdiction”; and (2) loss-distribution issues,
such as the one actually involved in Babcock, namely, “whether the
plaintiff, because she was a guest in the defendant’s automobile, is
barred from recovering damages for a wrong concededly commit-
ted.” 28
Adopting the same distinction, the Restatement (Second) en-
dorsed the application of the laws of different laws to these two cate-
gories of issues:
[F]or example, a state has an obvious interest in regulating the
conduct of persons within its territory and in providing redress
for injuries that occurred there. Thus, subject only to rare ex-
ceptions, the local law of the state where conduct and injury
occurred will be applied to determine whether the actor satis-
fied minimum standards of acceptable conduct and whether
the interest affected by the actor’s conduct was entitled to legal
protection.
On the other hand, the local law of the state where the parties
are domiciled . . . may be applied to determine whether one
party is immune from tort liability to the other[,] . . . whether . .
. a guest passenger has a right of action against the driver of an
automobile for injuries suffered as a result of the latter’s negli-
gence[, or] . . . whether tort claims arising from the injury sur-
vive the death of the tortfeasor. 29
Babcock involved only the latter issue, the guest passenger’s
right to sue the host-driver, and the court applied to it the law of New

27
Babcock v. Jackson, 191 N.E.2d 279, 284 (N.Y. 1963). In such a case, the court noted that
“it would be almost unthinkable to seek the applicable rule in the law of some other place.”
Id.
28
Id. at 284. For extensive discussion of this distinction in American conflicts law, see
Symeonides, REVOLUTION, supra note 4, at 123–40.
29
Restatement (Second) § 145 cmt. d.
7
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

York, the parties’ common domicile. A dépeçage would have occurred

if Babcock also involved one of the issues described in the first para-
graph of the above-quoted excerpt—i.e., whether the driver’s conduct
violated an Ontario traffic rule—and the court had applied Ontario
law to that issue. 30
2. What Dépeçage Is Not
Various courts have referred to dépeçage as a “mystical doc-
trine,” a plain “doctrine,” 32 a “legal theory,” 33 an “approach,” 34 a
31

“principle,” 35 a “rule,” 36 a “technique,” 37 or a “process.” 38 Dépeçage is

none of the above. It is not the goal of the choice-of-law process, not
even the goal of issue-by-issue analysis. Rather, dépeçage is the poten-
tial and occasional result of issue-by-issue analysis.
A dépeçage occurs only when the court applies the substantive
laws of different states to different issues in the same cause of action,

30
See supra note 27.
31
Makarova v. United States, 201 F.3d 110, 114 (2d Cir. 2000).
32
Burlington N. & Santa Fe Ry. Co. v. ABC-NACO, 906 N.E.2d 83, 93 (Ill. App. Ct. 2009);
Calhoun v. Yamaha Motor Corp., U.S.A., 216 F.3d 338, 342 (3d Cir. 2000); Cooper v. Meridi-
an Yachts, Ltd., 575 F.3d 1151, 1172 (11th Cir. 2009); Foster v. U.S., 768 F.2d 1278, 1281 (11th Cir.
1985); Hutner v. Greene, 734 F.2d 896, 901 (2d Cir. 1984); La Plante v. Am. Honda Motor
Co., Inc., 27 F.3d 731, 741 (1st Cir. 1994); Schippers v. United States, 715 F.3d 879, 885 (11th
Cir. 2013); Simon v. United States, 341 F.3d 193, 195 (3d Cir. 2003); Fieger v. Pitney Bowes
Credit Corp., 251 F.3d 386, 397 (2d Cir. 2001); Bryant v. Silverman, 703 P.2d 1190, 1193 (Ariz.
1985); Intercon Solutions, Inc. v. Basel Action Network, ___ F.Supp.2d ___, No. 12 C 6814,
2013 WL 4552782, at *4 (N.D. Ill. August 28, 2013); Pena v. Cooper Tire & Rubber Co., Inc.,
2010 WL 1511709 at *3 (Del. Super. Ct. 2010).
33
Burlington N., 906 N.E.2d at 93; Tech. Solutions Co. v. Northrop Grumman Corp., 826
N.E.2d 1220, 1225 (Ill. App. Ct. 2005); In re Mantle Oil & Gas, LLC, __ S.W.3d ___, 2012 WL
5323584 at 10* (Tex. App. 2012).
34
Act I, LLC v. Davis, 60 P.3d 145, 149 (Wyo. 2002).
35
Buchanan v. Doe, 431 S.E.2d 289, 291 (Va. 1993); Taylor v. Mooney Aircraft Corp., 265 Fed.
App’x. 87, 91 (3d Cir. 2008); Putnam Resources v. Pateman, 958 F.2d 448, 465 (1st Cir. 1992);
Ruiz v. Blentech Corp., 89 F.3d 320, 324, 325 (7th Cir. 1996); FutureSelect Portfolio Mgmt.,
Inc. v. Tremont Grp. Holdings, Inc., ___ P.3d ___, 2013 WL 4056275 at 4* (Wash. Ct. App.
2013); Leahy v. New Eng. Motor Freight, Inc. 2008 WL 4683908 at 6* (Conn. Super. Ct.
2008).
36
Savage Arms, Inc. v. W. Auto Supply Co., 18 P.3d 49, 53 (Alaska 2001); Gregory v. Beazer
East, 892 N.E.2d 563, 578 (Ill. App. Ct. 2008).
37
In re Air Crash Disaster Near New Orleans, La. on July 9, 1982, 821 F.2d 1147, 1177 (5th Cir.
1987) (Gee, J., concurring in part and dissenting in part).
38
Townsend v. Sears, Roebuck & Co., 879 N.E.2d 893, 901 (Ill. 2007); Stutsman v. Kaiser
Foundation Health Plan of Mid-Atlantic States, Inc., 546 A.2d 367, 372 (D.C. 1988).
8
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

but not when it applies its own procedural law and the substantive
law of another state. The latter phenomenon is a standard occurrence
in all multistate cases because, even under the first Restatement, the
law of the forum always governs all procedural issues. 39
Likewise, dépeçage occurs only when the court applies the sub-
stantive laws of different states to the same cause of action, not the
same case, such as when, in a contract cause of action, the court ap-
plies the law of State A to issues of form and the law of State B to is-
sues of capacity. If the case consists of two causes of action, e.g., a
contract cause of action, to which the court applies the law of State A,
and also a tort cause of action, to which the court applies the law of
State B, this phenomenon is not, properly speaking, dépeçage. A vari-
ation of the latter phenomenon occurs when the case encompasses
two actions against two unrelated defendants, such as when a car pas-
senger injured in a two-car collision sues both her host-driver and the
driver of the other car. If the court applies the law of State A to the
first action (e.g., the parties’ common domicile) and the law of State B
(e.g., the accident state) to the action against the other driver, the re-
sulting phenomenon is not, properly speaking, dépeçage.
3. In the Abstract, Dépeçage is Neither Good Nor Bad
While issue-by-issue analysis is generally beneficial because, as
noted earlier, it introduces the needed flexibility into the choice-of-
law process, dépeçage in the abstract is neither good nor bad, neither
a panacea nor anathema. When dépeçage occurs—and it occurs less
frequently than commonly assumed—it is innocuous in many cases
and inappropriate in a few cases. Table 1, below, depicts the various
possibilities.
TABLE 1. THE POSSIBILITIES FOR DÉPEÇAGE

CHOICE-OF-LAW APPLICABLE
DÉPEÇAGE
ISSUES LAW
1. Only one One law No
2. More than one Same laws No
3. More than one Different laws Yes, but innocuous
Yes, and potentially inap-
4. More than one Different laws
propriate

39
See Restatement § 585 (“All matters of procedure are governed by the law of the forum.”).
9
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

As the table indicates:

(1) In some cases (as in Babcock), there is only one disputed
choice-of-law issue. In those cases, the court applies one law,
and thus there is no dépeçage.
(2) In other cases, there are two or more disputed choice-of-law
issues but the court applies the same law to all issues. Again,
there is no dépeçage.
(3) In other cases, the court applies the laws of different states
to two or more disputed choice-of-law issues. In those cases,
and only in those cases, there is dépeçage. In some of those
cases, dépeçage is totally unproblematic and innocuous be-
cause the applicable laws are entirely congruent.
(4) In the remaining few cases, dépeçage may be problematic,
such as “when used to fragment issues related to a common
purpose or to legitimatize a smorgasbord approach which in-
ures only to the benefit of the party picking and choosing.” 40
4. Occasionally, Dépeçage is Problematic
Brainerd Currie, one of the chief proponents of issue-by-issue
analysis, acknowledged that in some cases dépeçage may be problem-
atic:
True it is that choice of law must proceed on an issue-by-issue
basis; but modern conflict-of-laws analysis can make no more
serious mistake than to indulge in an unprincipled eclecticism,
picking and choosing from among the available laws in order to
reach a result that cannot be squared with the interests of any
of the related states. Issue-by-issue analysis should not result in
the cumulation of negative policies to produce a result not con-
templated by the law of either state. 41

40
Johnson v. Cont’l Airlines Corp., 964 F.2d 1059, 1064 (10th Cir. 1992); see also In re Air
Crash Disaster Near Chi., Ill. on May 25, 1979, 644 F.2d 594, 611 (7th Cir. 1979) (“The task of
conflicts analysis using dépeçage requires creativity and precision.”); Crucible Materials
Corp. v. Aetna Cas. & Sur. Co., 228 F. Supp. 2d 182, 199 (N.D.N.Y 2001) (“Dépeçage is an
unusual and drastic principle that should be applied with the greatest trepidation.”).
41
DAVID. F. CAVERS, THE CHOICE-OF-LAW PROCESS 38 (1965) (attributing these words to
Brainerd Currie (with Currie’s approval) in the role of a hypothetical judge).
10
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

Such a result would be as anomalous as a “synthetic hybrid” of “half a

donkey and half a camel,” 42 Currie concluded.
The question then is how to avoid this “synthetic hybrid” of in-
congruous laws, or in other words, how to distinguish between a
permissible and an inappropriate dépeçage. In this context, it helps to
remember that the term dépeçage can be paraphrased in English as
“picking and choosing.” Generally speaking, picking and choosing is
inappropriate when the rule of the one state that is chosen is so close-
ly interrelated to a rule of the same state that is not chosen that ap-
plying the one rule without the other would drastically upset the
equilibrium established by the two rules and would distort and defeat
the policies of that state. In those cases, dépeçage is inappropriate and
must be avoided.
Suppose for example that state A, a northern state, requires
that cars driven in the state during the winter months use snow tires
and consider the failure to use such tires as “negligence per se.” State
B, a southern state, does not require the use of snow tires. While driv-
ing in state A without snow tires, a state B domiciliary causes an acci-
dent resulting in the death of his passenger, also a state B domiciliary.
In such a case, there is little argument that state A has a legitimate
reason to insist on adherence to its snow-tire rule and on defining the
consequences of noncompliance, and that state B’s no-snow-tire rule
is simply irrelevant with regard to driving outside its borders. Suppose
further that the two states differ in designating the beneficiaries of the
victim’s survival action. State A designates the victim’s spouse as the
exclusive beneficiary, while state B includes as beneficiaries the vic-
tim’s children. Here again, there is little argument that state B has the
better claim to apply its law to this issue of loss distribution.
In this case, the resulting dépeçage is not inappropriate because
the snow-tire rule of state A is not closely related, and perhaps not re-
lated at all, to the survival-action rule of the same state. The applica-
tion of the former rule and the nonapplication of the latter would nei-
ther distort nor defeat the policies of that state, nor would it disturb
whatever equilibrium these two rules might establish between deter-
rence and compensation. The same is true about the application of
state B’s survival-action rule without state B’s snow-tire rule.

42
Id. at 39.
11
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

A different conclusion would follow if, in the same hypothet-

ical, the conduct-regulating rule and the loss-distributing rule of state
A are closely interrelated and intended to be applied together. Sup-
pose, for example, that state A’s snow-tire rule is coupled with a rule
that reduces or increases by 10% the amount of damages that can be
recovered from a defendant, depending on whether the defendant
used snow tires. In such a case, it would be inappropriate to apply the
snow-tire rule without its intended companion rule regarding the
amount of recoverable damages. In other words, in such a case, a dé-
peçage would be inappropriate, and the court should avoid it. 43
As to how the court can avoid an inappropriate dépeçage, the
answer is easy. Unlike many foreign courts which are bound by strict
statutory rules, 44 American courts are no longer bound by inflexible
choice-of-law rules that constrict courts to a preordained result. One
common feature of all the approaches that have emerged from the
American choice-of-law revolution is that they grant courts abundant
(and arguably excessive) discretion in deciding multistate conflicts. 45
Courts use that discretion in engaging in issue-by-issue analysis, and
courts certainly can use the same discretion to avoid an inappropriate
dépeçage. American courts are perfectly capable of detecting and
avoiding an inappropriate dépeçage. 46
In conclusion, although in some cases issue-by-issue analysis
may lead to dépeçage and, in some of those cases, the dépeçage may
be inappropriate, this is not a good reason for rejecting issue-by-issue
analysis in general and returning to the wholesale choices of the tradi-
43
By comparison, based on the above definition of dépeçage, see supra Part II.1–2, there is
no dépeçage (much less an inappropriate dépeçage) when a court: (1) applies nonforum law
to the merits of the case and forum law to all procedural issues; or (2) applies the substan-
tive laws of different states to: (a) different causes of action between the same parties, or
(b) actions between different parties.
44
For a comparison with foreign legal systems on this issue, see SYMEONIDES, CODIFYING
CHOICE-OF-LAW AROUND THE WORLD, supra note 24. Although most foreign choice-of-law
codifications do not favor a judicial issue-by-issue analysis, they are replete with countless
instances of legislative issue splitting, which is at least as likely to lead to dépeçage (albeit a
statutory dépeçage) as a judicial issue-by-issue analysis. Yet, many of these codifications do
not provide the necessary tools to avoid a statutory dépeçage in those cases in which it may
be inappropriate. In contrast, the Louisiana and Oregon codifications, which require courts
to engage in an issue-by-issue analysis, also provide the tools for avoiding an inappropriate
dépeçage. See id.
45
For documentation and discussion, see SYMEONIDES, REVOLUTION, supra note 4, at 412–13,
418–19, 426–29.
46
See cases cited infra note 57.
12
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

tional system. Rather than precluding issue-by-issue analysis, the bet-

ter solution is to guard against the possibility of an inappropriate dé-
peçage and to avoid it in the few situations where it may occur.
IV. THE CASES
1. A Survey
The prevailing impression is that dépeçage is a very common
occurrence. Professor Reese called it a “common phenomenon,” 47 and
several courts agreed by referring to it as “widely applied,” 48 “widely
approved,” 49 and even “routine.” 50 Indeed, it might be logical to as-
sume that, because all modern approaches followed in more than 40
states endorse issue-by-issue analysis, dépeçage would be a very fre-
quent occurrence. It is not; and the reason is simple. As Table 1 indi-
cates, not every multistate case involves more than one choice-of-law
issue, and cases that involve several issues are not necessarily resolved
by applying the laws of different states. Indeed, dépeçage is probably
more frequent in law school exam questions than in judicial decisions.
A Westlaw search has identified only 291 cases using the term dé-
peçage in the fifty-year period since Babcock. 51 Less than a third of
those are appellate cases—only 76. 52 Apparently, by the time a case
reaches the appellate level, the number of choice-of-law issues de-
creases, and those that remain do not necessarily warrant the applica-
tion of different laws.

47
Reese, supra note 16, at 58.
48
In re Air Crash Disaster at Stapleton Int’l Airport, Denver, Colo., on Nov. 15, 1987, 720 F.
Supp. 1445, 1448 n.3 (D. Colo. 1988) (dépeçage “is widely applied to the multifaceted issues
involved in aviation litigation”); Ruiz v. Blentech Corp., 89 F.3d 320, 324 (7th Cir. 1996)
(dépeçage “has been long applied in connection with various methods for choice of law.”).
49
Johnson v. Cont’l Airlines Corp., 964 F.2d 1059, 1062 n.4 (10th Cir. 1992) (“Dépeçage is the
widely approved process whereby the rules of different states are applied on the basis of
the precise issue involved.”).
50
In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1495 (D.C. Cir. 1991) (dé-
peçage “is now routine.”); see also Schwartz v. Liberty Mut. Ins. Co., 539 F.3d 135, 153 (2d
Cir. 2008) (dépeçage “is not altogether uncommon”).
51
The search was conducted on October 1, 2013, using the terms “dépeçage” and “de-
pecage.” Of the 291 cases, 48 cases were decided by state courts and 243 by federal courts.
Babcock itself did not use the term dépeçage. The first case to use this term was Hunker v.
Royal Indem. Co., 204 N.W.2d 897, 905 n.1 (Wis. 1973).
52
Of the 243 federal cases, 37 cases were decided by courts of appeal and 206 by district
courts. Of the 48 state cases, 39 cases were decided by appellate courts and 10 by trial
courts. However, with only few exceptions, Westlaw does not report state trial court deci-
sions.
13
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

To be sure, there are many cases that actually engage in dé-

peçage without using this term. 53 The survey has not identified these
cases, and there is no easy way to count them. But even if the cases
not using the term dépeçage are twice as many as the cases that use it,
this would still be a minuscule percentage because American state
and federal courts decide more than 2,000 conflicts cases per year. 54
There is also the converse phenomenon. Many of the 291 cases
that use the term dépeçage do not engage in it because they do not
need to— either because the case involves only one issue or it in-
volves several issues to which the court applies the law of the same
state. These cases acknowledge the theoretical possibility of dépeçage
and affirm its legitimacy. Almost half of the appellate cases (47 per-
cent) fall in this category. 55

53
See, e.g., Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914 (Cal. 2006) (applying Cali-
fornia law to enjoin the nonconsensual recording of telephone conversations between a
Georgia brokerage firm and its California customers and Georgia law to deny damages for
past recordings); Woodward v. Stewart, 243 A.2d 917 (R.I. 1968), cert. dismissed, 393 U.S.
957 (1968) (holding that Massachusetts law governed the wrongfulness of the driver’s con-
duct, and Rhode Island law would govern his amenability from suit by his guest-
passenger); Ashland Oil, Inc. v. Miller Oil Purchasing Co., 678 F.2d 1293 (5th Cir. 1982) (ap-
plying Louisiana law to liability and Mississippi law to punitive damages); Caruolo v. John
Crane, Inc., 226 F.3d 46 (2d Cir. 2000) (applying New York law to the issue of defendant’s
liability vis-à-vis the plaintiff and Rhode Island law to the issue of joint and several liabil-
ity); Bauer v. Club Med Sales, Inc., 1996 WL 310076 (N.D. Cal. 1996) (applying Mexican law
to issues of standard of care and California law to the amount of compensatory damages);
Sabell v. Pac. Intermountain Express Co., 536 P.2d 1160 (Colo. App. 1975) (holding that Iowa
law would govern to issues of conduct and Colorado law would govern issues of damages);
City of Rome v. Glanton, 958 F. Supp. 1026 (E.D. Pa. 1996).
54
See Symeon C. Symeonides, Choice of Law in the American Courts in 2012: Twenty-Sixth
Annual Survey, 61 AM. J. COMP. L. 217, 219 (2013) (showing 4,300 conflicts cases decided in
2012). My impression from surveying all choice-of-law cases for the last 26 years is that the
number of cases involving dépeçage but not using this term cannot be more than two hun-
dred cases.
55
For state appellate cases, see Act I, LLC v. Davis, 60 P.3d 145 (Wyo. 2002); Arms, Inc. v.
W. Auto Supply Co., 18 P.3d 49, 53 (Alaska 2001); Brown v. Grimes, 120 Cal. Rptr. 3d 893
(Cal. Ct. App. 2011); Bryant v. Silverman, 703 P.2d 1190 (Ariz. 1985); Buchanan v. Doe, 431
S.E.2d 289 (Va. 1993); de Nunez v. Bartels, 727 So. 2d 463 (La. Ct. App. 1998); Erie Ins. Ex-
change v. Heffernan, 925 A.2d 636 (Md. 2007); Favaroth v. Appleyard, 785 So. 2d 262 (La.
Ct. App. 2001); Hunker v. Royal Indem. Co., 204 N.W.2d 897 (Wis. 1973); In re Mantle Oil &
Gas, LLC, ___ S.W.3d ___, 2012 WL 5323584 (Tex. App. 2012); Mayse v. Watson, 1985 WL
7613 (Ohio Ct. App. 1985); Mims v. Mims, 635 A.2d 320 (D.C. 1993); Olmstead v. Anderson,
400 N.W.2d 292 (Mich. 1987); Pelican Point Operations, L.L.C. v. Carroll Childers Co., 807
So. 2d 1171 (La. Ct. App. 2002); Reichhold Chems., Inc. v. Hartford Accident & Indem. Co.,
750 A.2d 1051 (Conn. 2000); Singh v. Edwards Lifesciences Corp., 210 P.3d 337 (Wash Ct.
App. 2009); Tech. Solutions Co. v. Northrop Grumman Corp., 826 N.E.2d 1220, 1225 (Ill.
App. Ct. 2005); Townsend ex rel. Townsend v. Sears, Roebuck & Co., 858 N.E.2d 552 (Ill.
14
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

The remaining cases that use the term dépeçage can be divided
into four categories:
(1) Cases that engage in dépeçage; 56

App. Ct. 2006), vacated, 879 N.E.2d 893 (Ill. 2007); Townsend v. Sears, Roebuck & Co., 879
N.E.2d 893 (Ill. 2007).
For federal appellate cases, see Barreto v. Citibank, N.A., 907 F.2d 15 (1st Cir. 1990);
Bell Helicopter v. U.S., 833 F.2d 1375 (9th Cir. 1987); Broome v. Antlers’ Hunting Club, 595
F.2d 921 (3rd Cir. 1979); Cambridge Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169 (5th Cir.
2007); Crellin Technologies, Inc. v. Equipmentlease Corp., 18 F.3d 1 (1st Cir. 1994); Crowder
v. Am. Eagle Airlines, Inc., 118 Fed. App’x. 833 (5th Cir. 2004); Druck Corp. v. Macro Fund
Ltd., 290 Fed. App’x. 441 (2d Cir. 2008); Foster v. United States, 768 F.2d 1278 (11th Cir.
1985); Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778 (5th Cir. 2009); In re
Air Crash Disaster Near Chi. Ill. On May 25, 1979, 644 F.2d 594 (7th Cir. 1981); In re Condor
Ins. Ltd., 601 F.3d 319 (5th Cir. 2010); Int’l Adm’rs, Inc. v. Life Ins. Co. of N. Am., 753 F.2d
1373 (7th Cir. 1985); Makarova v. United States, 201 F.3d 110 (2d Cir. 2000); N.H. Ins. Co. v.
Carleton, 502 Fed. App’x. 478 (6th Cir. 2012); Putnam Resources v. Pateman, 958 F.2d 448
(1st Cir. 1992); Spinozzi v. ITT Sheraton Corp., 174 F.3d 842 (7th Cir. 1999); Zavecz v. Yield
Dynamics, Inc., 179 Fed. App’x. 116, 2006 WL 1158616 (3d Cir. 2006).
56
For state appellate cases, see Bonelli v. Volkswagen of Am., Inc., 421 N.W.2d 213 (Mich.
Ct. App. 1988); Burlington N. & Santa Fe Ry. Co. v. ABC-NACO, 906 N.E.2d 83 (Ill. App. Ct.
2009); FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., __ P.3d ___, 2013
WL 4056275 (Wash. Ct. App. 2013); Glasscock v. Miller, 720 S.W.2d 771 (Mo. Ct. App. 1986);
Goede v. Aerojet Gen. Corp., 1143 S.W.3d 14 (Mo. Ct. App. 2004), reh’g denied (Aug 10,
2004), transfer denied (Sep 28, 2004); Smith v. State Dept. of Health & Hosps., 895 So. 2d
735 (La. Ct. App. 2005); Wooley v. Lucksinger, 14 So. 3d 311 (La. Ct. App. 2008), aff ’d in part,
rev’d in part by Wooley v. Lucksinger, 61 So. 3d 507 (La. 2011).
For federal appellate cases, see Barton v. Drummond Co., 636 F.2d 978 (5th Cir.
1981); Beard v. J.I. Case Co., 823 F.2d 1095 (7th Cir. 1987); Berg Chilling Sys., Inc. v. Hull
Corp., 435 F.3d 455, 462 (3d Cir. 2006); Bigio v. Coca-Cola Co., 675 F.3d 163 (2d Cir. 2012);
Calhoun v. Yamaha Motor Corp., U.S.A., 216 F.3d 338 (3d Cir. 2000); Cooper v. Meridian
Yachts, Ltd., 575 F.3d 1151, 1172 (11th Cir. 2009); Corporacion Venezolana de Fomento v. Vin-
tero Sales Corp., 629 F.2d 786 (2d Cir. 1980); Ewing v. St. Louis-Clayton Orthopedic Grp.,
Inc., 790 F.2d 682 (8th Cir. 1986); Fieger v. Pitney Bowes Credit Corp., 251 F.3d 386 (2d Cir.
2001); Hutner v. Greene, 734 F.2d 896 (2d Cir. 1984); In re Air Crash Disaster Near New Or-
leans, La. on July 9, 1982, 821 F.2d 1147, (5th Cir. 1987), vacated, Pan Am. World Airways,
Inc. v. Lopez, 490 U.S. 1032 (1989); La Plante v. Am. Honda Motor Co., Inc., 27 F.3d 731 (1st
Cir. 1994); Reyno v. Piper Aircraft Co., 630 F.2d 149 (3d Cir. 1980), rev’d on other grounds,
454 U.S. 235 (1981); Ruiz v. Blentech Corp., 89 F.3d 320, 324, 325 (7th Cir. 1996); Schwartz v.
Liberty Mut. Ins. Co., 539 F.3d 135 (2d Cir. 2008); Stutsman v. Kaiser Found. Health Plan of
the Mid-Atlantic States, Inc., 546 A.2d 367 (D.C. 1988); Taylor v. Mooney Aircraft Corp.,
265 Fed. App’x. 87 (3d Cir. 2008).
For lower court cases, see , e.g., Ardoyno v. Kyzar, 427 F. Supp. 78 (E.D. La. 1976);
In re Air Crash Disaster at Sioux City, Iowa, on July 19, 1989, 734 F. Supp. 1425 (N.D. Ill.
1990); In re Aircrash Disaster Near Roselawn, Ind., on Oct. 31, 1994, 926 F. Supp. 736 (N.D.
Ill. 1996); In re Air Crash Disaster at Stapleton Int’l Airport, Denver, Colo., on Nov. 15, 1987,
720 F. Supp. 1445 (D. Colo. 1988); In re Air Crash Disaster at Stapleton Int’l Airport, Denver,
Colo., on Nov. 15, 1987, 720 F. Supp. 1505, (D. Colo. 1989), rev’d and remanded on other
grounds, 964 F.2d 1059 (10th Cir. 1992); In re Disaster at Detroit Metro. Airport on August
15
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

(2) Cases in which the court concludes that dépeçage would be

inappropriate under the particular circumstances; 57
(3) Cases that are inconclusive on the use of dépeçage; 58 and
(4) Six Indiana cases, including Simon v. United States, which
have rejected the whole notion of dépeçage. 59
Chart 1, below, shows the percentages of cases falling within the
above categories.

16, 1987, 750 F. Supp. 793 (E.D. Mich. 1989); Estate of Sullivan v. United States, 777 F. Supp.
695 (N.D. Ind. 1991); Golden v. Wyeth, Inc., 2013 WL 4500879 (E.D.N.Y. 2013); Intercon So-
lutions, Inc. v. Basel Action Network, ___ F. Supp. 2d ___, 2013 WL 4552782 (N.D. Ill. 2013);
Panthera Rail Car LLC v. Kasgro Rail Corp., 2013 WL 4500468 (W.D. Pa. 2013); Chemetron
Inv., Inc. v. Fid. & Cas. Co. of N.Y., 886 F. Supp. 1194 (W.D. Pa. 1994); Barrett v. Ambient
Pressure Diving, Ltd., 2008 WL 4934021 (D. N.H. Nov. 17, 2008); Wolfe v. McNeil-PPC, Inc.,
703 F. Supp. 2d 487 (E.D. Pa. 2010); Leahy v. New England Motor Freight, Inc. 2008 WL
4683908 (Conn. Super. Ct. Oct. 3, 2008); Partman v. Budget Rent-A-Car of Westchester,
Inc., 649 A.2d 275 (Conn. Super. Ct. 1994); Pittman v. Maldania, Inc., 2001 WL 1221704 (Del.
Super. Ct. 2001); Thomas v. Transp. Servs. of St. John, Inc., 2005 WL 1940141 (V.I.Super.
2005).
57
For state appellate cases, see Fairmont Supply Co. v. Hooks Indus., Inc., 177 S.W.3d 529
(Tex. App. 2005); Gregory v. Beazer East, 892 N.E.2d 563 (Ill. App. 2008); Rigdon v. Pitts-
burgh Tank & Tower Co., Inc. 682 So.2d 1303 (La. Ct. App. 1996); Warm Springs Forest
Products Indus., v. Emp. Benefits Ins. Co., 703 P.2d 1008 (Or. Ct. App. 1985). For federal
appellate cases, see, Johnson v. Cont’l Airlines Corp., 964 F.2d 1059 (10th Cir. 1992); Schip-
pers v. U.S., 715 F.3d 879, 885 (11th Cir. 2013). For cases avoiding an inappropriate dépeçage
but without using this term, see, e.g., Duhon v. Union Pac. Resources Co., 43 F.3d 1011 (5th
Cir. 1995); Estate of Gilmore, 946 P.2d 1130 (N.M. Ct. App. 1997).
58
See Simon v. United States, 341 F.3d 193 (3d Cir. 2003) (certifying to the Indiana Supreme
Court the question of whether Indiana uses dépeçage); Georgetown Assocs., Ltd. v. Home
Fed. Sav. & Loan Assoc., 795 S.W.2d 252, (Tex. App. 1990) (noting “the theoretical possibil-
ity of what the writers call dépeçage,” but “express[ing] no opinion on the existence or va-
lidity” of such an approach); In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475
(D.C. 1991) (dépeçage is mentioned only in the dissenting opinion); Perkins v. Chris Hunt
Water Hauling Contractor, Inc., 46 Fed. App’x. 903 (10th Cir. 2002) (decided under Okla-
homa conflicts law and finding that Oklahoma did not adopt dépeçage).
59
See Simon v. United States, 805 N.E.2d 798 (Ind. 2004); Baca v. New Prime, Inc., 810
N.E.2d 711 (Ind. 2004); Nat’l Union Fire Ins. Co. of Pittsburgh, PA. v. Standard Fusee Corp.,
940 N.E.2d 810 (Ind. 2010); Ky. Nat. Ins. Co. v. Empire Fire & Marine Ins. Co., 919 N.E.2d
565 (Ind. Ct. App. 2007); Shaw v. LDC Enterprises, 863 N.E.2d 424 (Ind. Ct. App. 2007),
transfer granted, opinion vacated (Jul 19, 2007), order vacated (Sep 18, 2007), transfer denied,
878 N.E.2d 212 (Ind. 2007); Tri-Quality Enters., Inc. v. Total Sys. Tech., Inc., 893 N.E.2d 781
(Ind. Ct. App. 2008).
16
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

CHART. 1. DÉPEÇAGE IN APPELLATE CASES

2. The Simon Case

The Simon case is particularly illuminating because it illustrates
that a blanket rejection of dépeçage may create more problems than it
resolves. Simon was a wrongful death action arising from the fatal
crash of a small airplane while attempting to land at a small Kentucky
airfield. The plane, which was owned and operated by a Pennsylvania-
based company, took off from Pennsylvania for a flight to Ohio and
back. During the return flight and while still in Ohio airspace, the
plane encountered bad weather and the pilot requested instructions
from Ohio air-traffic controllers. They directed the pilot to federal air-
traffic controllers operating in Indiana who instructed him to land at
the Kentucky airfield. The pilot also relied on a manual published by
the federal Government in the District of Columbia, which contained
erroneous information about the instrumentation of the Kentucky
airfield.
The crash caused the death of the pilot and the three passen-
gers. They were domiciled in different states, including Pennsylvania,
but all of them worked in Pennsylvania, and the flight was related to
their work there. Their families sued the federal Government in feder-
al district court in Pennsylvania under the Federal Tort Claims Act
(FTCA). The only disputed choice-of-law question was which law
would govern compensatory damages. The plaintiffs argued for the
17
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

application of Pennsylvania law, while the federal Government argued

for the application Indiana law. The parties did not invoke the laws of
any other jurisdiction, such as the District of Columbia or Kentucky.
The FTCA provides that tort actions against the federal Gov-
ernment are governed by the law of the state in which the wrongful
“act or omission occurred.” 60 The Supreme Court has held that the
quoted phrase refers to the “whole law” (i.e., including conflicts law)
of the state of the wrongful conduct. 61 In this case, wrongful conduct
occurred in both the District of Columbia and Indiana. If the conflicts
laws of these two jurisdictions differed in an outcome-determinative
way, the federal court would have to choose between the two of them.
If so, the court announced its intention to apply the conflicts law of
the state in which “the last significant negligent act or omission rele-
vant to the FTCA” occurred, and concluded that Indiana was that
state. 62
The court noted that, unlike the District of Columbia, which
follows a policy analysis including the use of dépeçage, Indiana prece-
dents were arguably inconclusive, at least on the use of dépeçage. For
this reason, the federal court certified to the Indiana Supreme Court
two questions: (1) Whether Indiana uses dépeçage, and (2) If not, how
would the Indiana Supreme Court choose the applicable law in a case
like Simon.
In answering these questions, the Indiana Supreme Court ex-
plained that the case in which that court abandoned the lex loci delicti
rule, Hubbard Mfg. Co. v. Greeson: 63 (a) did not adopt the Restatement
(Second); (b) did not introduce policy analysis; and (c) did not au-
thorize dépeçage. Instead, Hubbard held that, when the place of the
injury “bears little connection to the legal action,” 64 the applicable law
should be chosen by considering three contacts: the place of conduct,
the parties’ residence or place of business, and the place where their
relationship, if any, is centered. Using this test, the Simon court an-
swered the second certified question by concluding that the substan-
tive law of Indiana should govern because: (1) this was “one of the rare

60
See 28 U.S.C. §§ 1346(b), 2674 (2013).
61
See Richards v. United States, 369 U.S. 1 (1962).
62
Simon v. United States, 341 F.3d 193, 196 (3d Cir. 2003) (emphasis added).
63
515 N.E.2d 1071 (Ind. 1987).
64
Id. at 1073–74
18
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

cases in which the place of the [injury] is insignificant”; 65 (2) “[t]he

gravamen of this case is the allegedly negligent conduct”; 66 and (3)
“[t]he conduct in Indiana was more proximate to the harm” 67 than
the conduct in D.C.
The court acknowledged that Hubbard referred to the Restate-
ment (Second), but noted that this reference was merely illustrative
and was not meant as an “adoption” of the Restatement’s approach. 68
Moreover, adopting the Restatement (Second) “seemed an unattrac-
tive path then as it does now,” said the court, after reciting academic
commentary that criticized the Restatement as a “hodgepodge of all
theories” and a “kitchen-sink concoction.” 69
The court appeared equally self-assured in its rejection of policy
analysis. Identifying and weighing policies is a “difficult and ultimate-
ly speculative” task, said the court, whereas it is much easier—and
presumably less speculative—to “simply look at the contacts that exist
between the action and the relevant states and determine which state
has the most significant relationship with the action.” 70 Even if one
assumes that weighing contacts is easier than weighing policies or in-
terests, the better question—which the court did not address—is
whether weighing contacts as such is at all a meaningful task. We
shall return to this point later.
Finally, the court was most “unimpressed” 71 about the merits of
dépeçage. While this is hardly an unreasonable position, the court’s
reasoning was unimpressive. First, the court’s definition of dépeçage
as “the process of analyzing different issues within the same case sep-
arately under the laws of different states” 72 suggests a basic misunder-

65
Simon v. United States, 805 N.E.2d 798, 806 (Ind. 2004).
66
Id.
67
Id. at 807.
68
See id. at 803 (“[O]ur opinion in Hubbard made it clear that the Second Restatement fac-
tors listed in Hubbard were mere examples of factors that courts might consider. We cited
the Restatement as the source of the listed contacts, but the list was not an exclusive one.
We did not adopt the Restatement’s approach to resolving conflicts.”)
69
Id. at 804 (quoting Michael H. Gottesman, Draining the Dismal Swamp: The Case for Fed-
eral Choice of Law Statutes, 80 GEO. L.J. 1, 8 (1991) and Friedrich K. Juenger, A Third Con-
flicts Restatement?, 75 IND. L.J. 403, 405 (2000)).
70
Id. at 803.
71
Id. at 802.
72
Id. at 801.
19
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

standing of this concept. As noted earlier, dépeçage is the application

(not the analysis) of the laws of different states to different issues in
the same cause of action (not case). While it is true that dépeçage is
possible only when the court undertakes a separate analysis of each
issue, i.e., issue-by-issue analysis, this does not mean that this analysis
always leads to dépeçage.
Be that as it may, after reciting the usual academic critiques,
including a third-hand citation to Currie’s reference to “half a donkey
and half a camel,” 73 the court rejected dépeçage because it “amalgam-
ates the laws of different states, producing a hybrid that may not exist
in any state,” 74 and this in turn may “produce unfair results because
the hybrid law may be more favorable to one party than another,” or
“hinder the policy of one or more states without furthering the con-
sidered policy of any state.” 75
2. A Critique
a. The Rejection of Dépeçage
Although the above possibilities are problematic, they only ap-
pear in some cases, and even then, they are easily avoidable. Simon
seems to assume: (1) that, in each cause of action in each case, there
will be more than one issue on which there is a conflict of laws; (2)
that a separate analysis of each of those issues will always lead to the
application of the laws of different states; and (3) that such applica-
tion will be inappropriate or problematic in all cases. A perusal of
chart 1, above, suggests that all three assumptions are partially wrong,
and the Simon case itself confirms this conclusion.
First, Simon involved only one disputed choice-of-law issue—
compensatory damages. The court admitted as much when it noted
that “this case is essentially about damages.” 76 In fact, the dispute was
only about damages, which were more generous under Pennsylvania

73
Id. at 803 (quoting Christopher G. Stevenson, Note, Dépeçage: Embracing Complexity to
Solve Choice-of-Law Issues, 37 IND. L. REV. 303, 320 (2003) (quoting Frederick K. Juenger,
How Do You Rate a Century? 37 WILLIAMETTE [sic] L. REV. 89, 106 (2001) (quoting Brainerd
Currie)).
74
Id. at 802 (quoting Erin A. O’Hara & Larry E. Ribstein, From Politics To Efficiency In
Choice-Of-Law, 67 U. CHI. L. REV. 1151, 1193 (2000)).
75
Id. at 803.
76
Id. at 805.
20
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

law than under Indiana law. 77 Consequently, it was at least unneces-

sary for the court to issue such a general and categorical denounce-
ment of dépeçage in a case that did not involve even the possibility of
dépeçage.
Second, it is simply not true that an issue-by-issue analysis al-
ways leads to the application of the law of different states to each is-
sue, i.e., dépeçage. Suppose, for example, that Simon involved a sec-
ond choice-of-law issue, such as the standard of care owed by the air-
traffic controllers operating in Indiana. Based on the court’s overall
discussion, there is little doubt that the court would have applied to
this issue the same law the court applied to the first issue, i.e., Indiana
law. If so, this should serve as a reminder that, even when the case in-
volves more than one choice-of-law issue, an issue-by-issue analysis
does not necessarily lead to dépeçage.
Third, it is simply not true that dépeçage always leads to inap-
propriate results. Suppose for example that Simon involved a third
choice-of-law issue, such as whether the wrongful death or survival
actions belong to the victim’s spouse and children on equal footing, or
whether the spouse precludes the children. If the court were to apply
Pennsylvania law to this issue, 78 as would virtually any court following
a modern choice-of-law analysis, then the resulting phenomenon
would qualify as dépeçage, but would it be an inappropriate dé-
peçage? The answer is clearly negative. Rather it would be an appro-
priate recognition of the fact that the states involved in a case are in-
terested in different aspects of the case: (1) Indiana is interested in
regulating the conduct of air-traffic controllers within its airspace,
and (2) Pennsylvania is interested in distributing the proceeds of
wrongful death or survival actions among the members of Pennsylva-
nia families. There is nothing wrong in applying Indiana law to the
first issue and Pennsylvania law to the second issue. The two rules
that each state provides for the two issues are not so interrelated so
that it would be inappropriate to apply the one without the other.
Fourth, even if in the particular case dépeçage is inappropriate,
the court has all the flexibility to avoid it. As another court noted,
77
Unlike Indiana, Pennsylvania provided recovery for both wrongful death and survival
damages, as well as damages for the decedent’s pre-death conscious pain and suffering.
Both states had adopted a comparative fault standard and although they differed on joint-
and-several liability and rights of contribution, this case did not involve these issues.
78
See Simon, 805 N.E.2d at 807 (stating that the residence of a party is “important in cases
involving family law or asset distribution.”).
21
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

“[d]épeçage permits, but does not necessarily require, the application

of different local law to different issues within a case.” 79 The Simon
court could avoid an inappropriate dépeçage by using the same flexi-
bility the court used to: (a) find that “the place of the tort was an in-
significant contact in this case”; (b) “evaluate” the remaining factors
“according to their relative importance to the particular issues before
the court”; 80 (c) conclude that “the most important relevant factor is
where the conduct causing the injury occurred”; 81 and (d) hold that
the conduct in Indiana was “more proximate to the harm” than the
conduct in the District of Columbia. 82
b. The Rejection of Issue-by-Issue and Policy Analysis
Because of its erroneous assumptions that issue-by-issue analy-
sis always leads to dépeçage and that dépeçage is always inappropri-
ate, the Simon court compounded the problem by also rejecting the
use of issue-by-issue analysis itself, 83 thus rejecting one of the true
breakthroughs of modern choice-of-law thinking. An important les-
son of the American choice-of-law revolution is that it is counterpro-
ductive to engage in a global search for the law that would govern
“the tort” as a whole when the dispute is confined to a single issue.
By also rejecting policy analysis, the Simon court also rejected
another important lesson of the revolution. It is a lesson first taught
by Professor David Cavers, as early as 1933, when he criticized the
“blindfolded” or “jurisdiction-selecting” nature of the choice-of-law
process under the first Restatement, which chose between states
based on their territorial contacts rather than the content of their re-
spective laws and their underlying policies. 84 Following the revolution
of the 1960s, all modern choice-of-law methodologies moved from
“jurisdiction selection” to content-oriented law selection and, despite
their other differences, have accepted the notion that one cannot in-
telligently choose between conflicting laws without considering the

79
Boomsma v. Star Transp., Inc., 202 F. Supp. 2d 869, 874 (E.D. Wisc. 2002).
80
Simon, 805 N.E.2d at 806 (Ind. 2004) (internal quotation marks omitted).
81
Id. at 806–07.
82
Id. at 807.
83
See id. at 801 (“Although Indiana allows different claims to be analyzed separately, it does
not allow issues within those counts to be analyzed separately.”).
84
See David F. Cavers, A Critique of the Choice-of-Law Problem, 47 HARV. L. REV. 173, 178
(1973).
22
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

content of those laws and their underlying policies. 85 The only excep-
tion is the “center of gravity” approach, which is followed in Indiana
and two other jurisdictions. 86
To its credit, the Indiana Supreme Court “fired the first shot” in
the choice-of-law revolution as early as 1945. 87 In H. Barber Co. v.
Hughes, 88 a case involving a contract conflict, the court abandoned
the lex loci contractus rule and decided to “consider all acts of the
parties touching the transaction in relation to the several states in-
volved and . . . apply as the law governing the transaction the law of
that state with which the facts are in most intimate contact.” 89 This
“center of gravity” 90 or “significant contacts” approach, which the In-
diana court adopted a decade before the New York court of Appeals in
Auten v. Auten, 91 was an improvement over the mono-dimensional
first Restatement, which based the choice of law on a single connect-
ing factor.
However, the significant contacts approach suffers from other
flaws, not the least of which is that one cannot reliably evaluate the
significance of contacts without considering the content of the laws of
the contact states. In the abstract, a contact does not have independ-
ent significance, which a court can compare with the significance of
another contact. As the New York Court of Appeals noted, contacts
“obtain significance” depending on the laws of the contact states and
their underlying policies.92 The Simon court found the task of identi-
fying and comparing state policies to be “difficult and ultimately

85
See SYMEONIDES, REVOLUTION, supra note 4, at 394–404.
86
The other two jurisdictions are North Dakota and Puerto Rico in tort conflicts. In con-
tract conflicts, the jurisdictions that follow this approach besides Indiana, are Arkansas,
Nevada, North Carolina, and Puerto Rico. See Symeonides, Choice of Law in the American
Courts in 2012, supra note 10, at 279.
87
See Geri J. Yonover, The Golden Anniversary of the Choice of Law Revolution: Indiana
Fired the First Shot, 29 IND. L. REV. 1201 (1996). Most observers credit the New York Court of
Appeals for launching the revolution in contract conflicts with the 1954 decision in Auten v.
Auten, 124 N.E.2d 99 (N.Y. 1954), followed by Babcock in tort conflicts.
88
63 N.E.2d 417 (Ind. 1944).
89
Id. at 423.
90
Id.
91
124 N.E.2d 99 (N.Y. 1954).
92
Miller v. Miller, 290 N.Y.S.2d 734, 737 (N.Y. 1968) (emphasis added) (“[T]he facts or con-
tacts which obtain significance in defining State interests are those which relate to the
purpose of the particular law in conflict.”).
23
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

speculative” and chose the supposedly less speculative path of “simply

look[ing] at the contacts that exist between the action and the rele-
vant states and determin[ing] which state has the most significant re-
lationship with the action.” 93 The court did precisely that and con-
cluded that:
The gravamen of this case is the allegedly negligent conduct.
Consequently, the most important relevant factor is where the
conduct causing the injury occurred because an individual’s ac-
tions and the recovery available to others as a result of those ac-
tions should be governed by the law of the state in which he
acts. 94
However, one could argue that this is a conclusion in search of
a reason. For example, the first quoted sentence contradicts the
court’s statement that “this case is essentially about damages” rather
than about what law governs the defendant’s conduct. The second
quoted sentence is, to put it mildly, too categorical. The court stated
that this sentence expresses a “nearly universal” 95 principle and relied
on two authorities for this conclusion. The first is a law review article
by Professor John T. Cross which states that, “[i]f the state of conduct
has a law regulating how the tortfeasor or victim is supposed to act . . .,
courts will apply that standard rather than the law of the parties’ resi-
dence,” and that “this preference for the conduct-regulating law of the
conduct state is virtually absolute.” 96 But as the quoted excerpt indi-
cates, the author’s conclusion applies only to conduct-regulation is-
sues, not loss-distribution issues such as the damages involved in Si-
mon. 97

93
Simon v. United States, 805 N.E.2d 798, 803 (Ind. 2004).
94
Id. at 806–07 (footnotes omitted).
95
Id. at 807 n.12 (quoting John T. Cross, The Conduct-Regulating Exception In Modern Unit-
ed States Choice-Of-Law, 36 CREIGHTON L. REV. 425, 425 (2003)).
96
Id. (emphasis added).
97
Professor Cross repeatedly makes this point in his article. He also notes the possibility of
dépeçage by stating that the application of what he calls the conduct-regulating exception
“does not mean that the entire case will be judged by the law of [the conduct state].”
[Instead,] a court will . . . use [that] law only to evaluate whether one or both par-
ties acted properly. Application of the conduct-regulating exception accordingly
leads to a hybrid case in which the [conduct state’s] law is used for one or two
main issues, while the law of one or more other states governs other aspects of the
case such as damages. Of course, such splitting, sometimes referred to as dé-
peçage, is by no means unusual in United States conflicts law.
24
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

The second authority on which the Simon court relied is a Sev-

enth Circuit case, Judge v. Pilot Oil Corporation. 98 That case, however,
differed from Simon in two important respects: (1) it involved a con-
duct-regulation conflict; and (2) it arose out of an intrastate tort (a
shooting at a truck stop) rather than a cross-border tort. While there
is sufficient support for applying the law of the state of conduct and
injury in intrastate tort conflicts involving parties who are not domi-
ciled in the same state, 99 the same is not true for applying the law of
the state of conduct in cross-border torts. In fact, 90 percent of the
cases involving one of the two cross-border tort patterns, namely
those in which the injury predictably occurred in a state that imposed
a higher standard of conduct for the actor or financial protection for
the victim than the state of conduct, have applied the law of the state
of injury. 100 Thus, the court’s assumption that courts “nearly univer-
sal[ly]” apply the law of the state of conduct is not accurate.
It is of course true that the Simon case does not fall within this
pattern because, besides the court’s finding that the occurrence of the
injury in Kentucky was fortuitous, the parties did not invoke Ken-
tucky law. However, the fact that Kentucky was out of contention
does not make Indiana the best choice, especially because this was
not a dispute about what law would govern the standard of conduct.
Because the dispute was “essentially about damages,” the proper focus
should have been on the payer and the payee of those damages and
the states that would bear the consequences of paying or not paying
those damages. These states were Pennsylvania, the plaintiffs’ home
state, which also had additional relevant contacts, and the District of
Columbia, the seat of the defendant, the federal Government. Unlike
the plaintiffs who argued for the application of the law of their home
state, the defendant chose not to argue for the application of D.C. law

Cross, supra note 95, at 439 (footnote omitted).

98
Simon, 805 N.E.2d at 807 n.12 (quoting Judge v. Pilot Oil Corp., 205 F.3d 335, 337 (7th Cir.
2000)).
99
See SYMEONIDES, REVOLUTION, supra note 4, at 162–91 (for loss-distribution conflicts) and
213-20 (for conduct-regulation conflicts).
100
See Symeon C. Symeonides, Choice of Law in Cross-Border Torts: Why Plaintiffs Win, and
Should, 61 HASTINGS L.J. 337, 366–80 (2009) (surveying all state and federal cases decided
since the beginning of the choice-of-law revolution in states that have abandoned the lex
loci delicti rule). In the other pattern, namely cross-border torts in which the state of con-
duct has the higher standard, the courts applied the law of the state of conduct in 84 per-
cent of the cases. See id. at 353–66. Simon did not involve this pattern because Indiana did
not impose a higher standard of conduct for the actor or financial protection for the victim.
25
 SYMEONIDES, ISSUE-BY-ISSUE ANALYSIS AND DÉPEÇAGE

and instead chose to urge the application of Indiana law. 101 In other
words, the defendant engaged in its own picking and choosing. It is
ironic that a court that disapproves of dépeçage because in some cases
it can lead to an incongruous (but always avoidable) picking and
choosing did not see anything wrong with the defendant’s picking
and choosing.
VI. CONCLUSION
Sports analogies are rarely an elegant way to express legal di-
lemmas, but there is a certain similarity between a court’s predica-
ment regarding dépeçage to that of a quarterback in possession of the
football. If he throws the ball, three things can happen, and two of
them are unfavorable—incompletion and interception. If, for this rea-
son, he never throws the ball, his team’s chances of scoring will be
very low.
In undertaking an issue-by-issue analysis, a court faces much
better odds. Indeed, the court risks virtually nothing, except perhaps
a few hours of extra work, by undertaking an analysis that is more
likely than the traditional wholesale analysis to yield more nuanced
and individualized solutions to conflicts cases. It bears repeating that,
as this Article has demonstrated: (1) issue-by-issue analysis does not
always lead to dépeçage; (2) when it does, the result is not necessarily
incongruous or otherwise problematic; and, (3) when it is, a court can
easily avoid it.

101
D.C. law was less generous than Pennsylvania’s but more generous than Indiana’s. D.C.
law provided wrongful death damages for loss of support to spouses and next of kin, as well
as survivor claims, but excluded pain and suffering.
26