Modern choice of law analysis usually honors the parties’ contractual choice of governing law. But what happens when the law selected by the parties changes between the time of their contracting and the time of litigation? Or what if the law of the state whose law would otherwise apply changes so that its policy is now offended by the choice of law clause although its policy was not violated when the parties contracted? These questions raise the often-overlooked temporal aspect of choice of law analysis. Should courts regard the law to be applied as fixed to the time of the transaction or as changeable over time? The answers to these problems are influenced by several factors: the proper concern for current state policy; the parties’ expectations; and whether the new law invalidates a previously valid transaction or, alternatively, makes a previously invalid transaction valid.
Jeffrey L. Rensberger,
Choice of Law and Time, Part II: Choice of Law Clauses and Changing Law,
Ga. St. U. L. Rev.
Available at: https://readingroom.law.gsu.edu/gsulr/vol39/iss2/10