UBE Choice of Law: Tort
Last updated: May 2, 2026
Choice of Law: Tort questions are one of the highest-leverage areas to study for the UBE. This guide breaks down the rule, the elements you need to recognize, the named traps that catch most students, and a memory aid that scales to test day. Read it once, then practice the same sub-topic adaptively in the app.
The rule
When a tort claim has contacts with more than one state, the forum applies its own choice-of-law methodology to select the substantive law that governs liability. The traditional rule (First Restatement) applies lex loci delicti — the law of the place where the last event necessary to make the actor liable occurred, i.e., the place of injury. The modern majority approach (Second Restatement §§ 6, 145, 146) applies the law of the state with the most significant relationship to the occurrence and the parties, considering four contacts (place of injury, place of conduct, domicile/residence/place of business of the parties, place where the relationship is centered) weighted by the § 6 policy factors, with a presumption that the place of injury governs in personal-injury actions unless another state has a more significant relationship. A minority of states use governmental interest analysis (Currie), Leflar's better-law approach, or simply lex fori; courts in all approaches apply forum procedural law and a public-policy escape valve.
Elements breakdown
Lex Loci Delicti (First Restatement / Vested Rights)
The law of the place of the wrong — meaning the place where the last event necessary to give rise to the cause of action occurred — governs the substantive elements of a tort claim.
- Identify the place of injury (last event)
- Apply that state's substantive tort law
- Apply forum law to procedural questions
- Apply forum's public-policy exception if needed
Common examples:
- Negligence: place where physical injury occurred
- Defamation: place of publication
- Fraud: place where loss was sustained
- Wrongful death: place of fatal injury
Most Significant Relationship — § 145 Contacts
Under Restatement (Second) § 145, the court evaluates four contacts to identify which state has the most significant relationship to the occurrence and the parties.
- Place where injury occurred
- Place where conduct causing injury occurred
- Domicile, residence, nationality, place of incorporation, and place of business of the parties
- Place where the relationship between the parties is centered
Most Significant Relationship — § 6 Policy Factors
The § 145 contacts are evaluated according to their relative importance with respect to the § 6 choice-of-law principles.
- Needs of interstate and international systems
- Relevant policies of the forum
- Relevant policies of other interested states and their relative interests
- Protection of justified expectations
- Basic policies underlying the field of tort law
- Certainty, predictability, and uniformity of result
- Ease in determination and application of law to be applied
§ 146 Personal-Injury Presumption
In personal-injury actions, Restatement (Second) § 146 creates a rebuttable presumption that the local law of the state where the injury occurred governs unless some other state has a more significant relationship.
- Cause of action sounds in personal injury
- Identify state of injury (presumptively governs)
- Party seeking displacement must show another state has more significant relationship under §§ 6, 145
Governmental Interest Analysis (Currie)
A minority approach asking which states have a real policy interest in having their law applied to the dispute.
- Identify each involved state's policy underlying its rule
- Determine whether each state has a legitimate interest in applying its policy to these parties and facts
- Classify as false conflict (only one state has interest), true conflict, or unprovided case
- Apply forum law in true conflicts (Currie) or comparative-impairment in true conflicts (California variant)
Leflar's Better-Law / Choice-Influencing Considerations
A minority approach (used in a handful of states including Minnesota, Wisconsin, New Hampshire, and Arkansas) using five considerations to choose the governing law.
- Predictability of results
- Maintenance of interstate and international order
- Simplification of the judicial task
- Advancement of the forum's governmental interests
- Application of the better rule of law
Lex Fori (Forum Law) Approach
A few jurisdictions apply forum substantive law to all cases the forum has jurisdiction to hear, absent a compelling reason to displace it.
- Forum has personal and subject-matter jurisdiction
- Forum law applied to substance unless overridden
- Public-policy or constitutional limit may displace forum law
Public-Policy Escape Doctrine
A forum may refuse to apply otherwise-governing foreign law when application would violate a strong public policy of the forum.
- Choice-of-law analysis selects foreign law
- Foreign law's application would offend strong forum public policy
- Refusal limited to that issue (not the entire claim)
- Court typically applies forum law in foreign law's place
Procedure vs. Substance (and Borrowing Statutes)
Even after choice-of-law analysis selects another state's substantive tort law, the forum applies its own procedural rules; statutes of limitations were traditionally procedural but are increasingly treated as substantive or are addressed by borrowing statutes.
- Classify issue as substantive or procedural
- Procedural issues governed by lex fori
- Substantive issues governed by selected state's law
- Apply forum's borrowing statute, if any, to limitations periods
Renvoi (Generally Rejected in Tort)
When the forum's choice-of-law rule selects another state's law, courts generally apply only that state's internal/local law and do not consider that state's choice-of-law rules.
- Forum applies its own conflicts rules
- Selects another state's substantive law
- Ignores that state's choice-of-law rules
- Narrow exceptions (e.g., title to land, validity of divorce) do not extend to tort claims
Common patterns and traps
The Methodology-Cue Misread
The fact pattern signals one choice-of-law methodology (e.g., by quoting § 145, by saying the forum 'follows the modern approach,' or by reciting Currie's interest categories), but distractors apply a different methodology that reaches a different result. Bar questions test whether you can pivot to the methodology the forum actually uses, not whichever framework you find most intuitive.
A choice that reaches the right outcome but cites 'place of the wrong' analysis when the question expressly invokes Second Restatement § 145 — or vice versa.
The Place-of-Conduct vs. Place-of-Injury Confusion
Lex loci delicti looks to the place where the last event necessary for liability occurred — typically the place of injury, not the place of negligent conduct. Wrong answers flip the two, especially when conduct and injury occur in different states (e.g., manufacturing defect in one state, injury in another).
A choice that says 'apply the law of State X because the negligent design work was done there,' when injury occurred in State Y and the question signals lex loci delicti.
The Renvoi Trap
Distractors invite you to apply the chosen state's choice-of-law rules and bounce back to forum law (or onward to a third state). For tort claims, renvoi is rejected: once the forum's conflict rule selects State X, you apply State X's internal substantive law only, ignoring State X's conflicts rules.
A choice reasoning that 'because State X's courts would themselves apply State Y's law under § 146, the forum should also apply State Y's law.'
The Procedure-vs-Substance Misclassification
Even when foreign law is selected, the forum applies its own procedural rules — but the line between substance and procedure is treacherous. Statutes of limitations were traditionally procedural (forum applies its own period); modernly, many courts treat them as substantive or apply borrowing statutes. Burden of proof, presumptions, and damage caps may also flip the classification.
A choice that applies the forum's longer statute of limitations to a foreign-law claim without checking whether the forum has a borrowing statute or treats limitations as substantive.
The False-Conflict Misdiagnosis
Under governmental interest analysis, when only one involved state has a real policy interest, that state's law applies — it is a false conflict. Distractors apply true-conflict resolution (forum law under Currie; comparative-impairment in California) when the case is actually a false conflict (or vice versa).
A choice resolving an interstate dispute with 'apply forum law because the conflict is true' when both parties are from State X, the relationship is centered there, and State Y's only contact is fortuitous — making it a false conflict resolved by State X's law.
How it works
Picture a New Jersey-domiciled driver and a New York-domiciled passenger taking a single weekend trip together. They cross into Pennsylvania, where the driver negligently rear-ends another car and the passenger is injured. The passenger sues in New York. Under the old First Restatement, you would mechanically apply Pennsylvania law — that is the place of injury, full stop. Under the Second Restatement, you start with the § 146 presumption that Pennsylvania law governs because the injury happened there, but you then run the § 145 contacts through the § 6 policy filter: both parties are domiciled outside Pennsylvania, their relationship as host and guest was centered elsewhere, and Pennsylvania's only contact is the fortuity of where the collision happened. New York likely emerges as the state with the most significant relationship, especially on host–guest issues like guest-statute immunity. The trick on the bar is to identify the methodology the question signals (a 'place of wrong' framing points to lex loci; 'most significant relationship' or § 145 factor-balancing points to the Second Restatement) and apply it cleanly without smuggling in a different test.
Worked examples
Whose law governs the substantive issue of whether the guest statute bars Patel's claim?
- A State C's law, because under § 146 the place of injury is presumed to govern personal-injury claims, and that presumption controls regardless of the parties' domiciles.
- B State A's law, because both parties' relationship was centered in State A, neither party is from State C, and State C's only connection is the fortuity of the accident location, displacing the § 146 presumption. ✓ Correct
- C State A's law, because under lex loci delicti the law of the forum governs whenever the forum has personal jurisdiction over the defendant.
- D State B's law, because Patel as plaintiff is the master of his complaint and may select any involved state's substantive law in a Second Restatement jurisdiction.
Why B is correct: Under Restatement (Second) §§ 145 and 146, place of injury creates a rebuttable presumption that State C's law governs, but the § 145 contacts and § 6 policy factors must be analyzed. Both parties are domiciled outside State C, their relationship as co-workers and travel companions is centered in State A, and the conduct in State C was a fortuity — both parties were just passing through. State A has a strong interest in having its 'no guest statute' policy protect its own citizen-passengers and apply to its own employer's workforce. State C has minimal interest in immunizing a State A driver from liability to a State B passenger when neither party is a State C resident. The § 146 presumption is therefore overcome and State A law governs.
Why each wrong choice fails:
- A: This choice misstates the § 146 presumption as conclusive. Section 146 is expressly a rebuttable presumption that yields when another state has a more significant relationship under § 145 and § 6 — exactly the situation here. (The Methodology-Cue Misread)
- C: This invokes lex loci delicti but reaches the wrong place: lex loci selects the place of injury (State C), not the forum. It also confuses choice of law with personal jurisdiction, which are independent inquiries. (The Place-of-Conduct vs. Place-of-Injury Confusion)
- D: No choice-of-law methodology gives the plaintiff free selection of governing law. Forum-shopping limits aside, the Second Restatement requires neutral application of §§ 6 and 145 to identify the state with the most significant relationship.
Under State X's lex loci delicti approach, which state's law governs the substantive measure of damages?
- A State X's law, because the defective design and manufacture both occurred there, and lex loci delicti points to the place of the negligent conduct.
- B State Y's law, because injury occurred there, and under lex loci delicti the place of the last event necessary for liability — the injury — governs the substance of the claim. ✓ Correct
- C State Z's law, because Vargas is domiciled there and a tort plaintiff's domicile is the most significant contact under the First Restatement.
- D State X's law, because the forum applies its own substantive tort law in lex loci delicti jurisdictions and uses foreign law only for procedural questions.
Why B is correct: Under the First Restatement / lex loci delicti rule, the governing law is that of the place where the last event necessary to give rise to the cause of action occurred — for a tort claim, that is the place of injury. The injury occurred in State Y, so State Y substantive law governs, including the (uncapped) damages rule. The place of design and manufacture is conduct, not the operative event for vested-rights analysis.
Why each wrong choice fails:
- A: This flips the classic place-of-injury / place-of-conduct distinction. Lex loci delicti selects the place of the wrong, defined as the last event making the actor liable; for personal injury that is where the injury manifested, not where the negligent conduct happened. (The Place-of-Conduct vs. Place-of-Injury Confusion)
- C: The First Restatement is a vested-rights, place-of-the-wrong test; it does not weigh plaintiff's domicile. Domicile is a § 145 contact under the Second Restatement, not a First Restatement consideration. (The Methodology-Cue Misread)
- D: Under lex loci delicti the forum applies foreign substantive law and only its own procedural law. This choice inverts that rule, treating substantive tort law as forum-law-by-default. (The Procedure-vs-Substance Misclassification)
Which state's law most likely governs the wrongful-death claim?
- A State P's law, because the place of death (the ocean off State P) is conclusive under § 146 in personal-injury and wrongful-death actions.
- B State M's law, because under §§ 6 and 145 State M has the most significant relationship — the airline, the decedent, and the parties' relationship are all centered there, while the place of death is fortuitous. ✓ Correct
- C State N's law, because the negligent engine-failure event occurred while overflying State N, and the place of conduct controls under the Second Restatement.
- D State P's law as selected by State M's conflicts rule, but renvoi requires the court to follow State P's choice-of-law rule and apply State M law.
Why B is correct: Section 146's place-of-injury presumption applies to personal-injury and wrongful-death claims, but it yields when another state has a more significant relationship under §§ 6 and 145. Here the airline is incorporated and headquartered in State M, the decedent is a State M domiciliary, the contractual relationship of carriage was centered in State M, and the crash site was a fortuity unconnected to the parties. State M has overwhelming interest in regulating its own carriers and protecting its own decedents' estates; State P has none. The presumption is rebutted and State M law governs.
Why each wrong choice fails:
- A: This treats § 146 as a hard rule rather than a rebuttable presumption. Where the place of injury is fortuitous and no party is connected to it, the presumption readily yields under §§ 6 and 145. (The Methodology-Cue Misread)
- C: Place of conduct is one of the four § 145 contacts, not a controlling rule. And State N is even more attenuated than State M — overflight is a momentary contact insufficient to outweigh the parties' shared State M connections. (The Place-of-Conduct vs. Place-of-Injury Confusion)
- D: Renvoi is rejected in tort choice of law. Once the forum's conflict rule selects another state's law, the forum applies that state's internal substantive law and ignores its choice-of-law rules; there is no bounce-back to State M. (The Renvoi Trap)
Memory aid
For the Second Restatement contacts, remember 'I-CDR': Injury, Conduct, Domicile/residence, Relationship-centered. Then run them through the § 6 policy lens. For methodologies overall, remember 'L-IBL-F': Loci, Interest analysis, Better law, Lex fori — plus the dominant Second Restatement most-significant-relationship test in the middle.
Key distinction
The pivotal distinction is between methodology and outcome: the same fact pattern can yield different governing law under lex loci delicti (mechanical place-of-injury) versus the Second Restatement (policy-weighted contacts). Read the call of the question for the methodology cue (e.g., 'most significant relationship,' '§ 145,' 'governmental interest') and resist the temptation to short-circuit to whichever law you think is 'fairer' — the bar tests the analytical framework, not your equitable instincts.
Summary
Tort choice-of-law on the bar comes down to identifying the methodology (lex loci delicti, Second Restatement most-significant-relationship, governmental interest, better law, or lex fori), running the analysis carefully, and remembering that procedure stays with the forum and renvoi does not apply to tort claims.
Practice choice of law: tort adaptively
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Start your free 7-day trialFrequently asked questions
What is choice of law: tort on the UBE?
When a tort claim has contacts with more than one state, the forum applies its own choice-of-law methodology to select the substantive law that governs liability. The traditional rule (First Restatement) applies lex loci delicti — the law of the place where the last event necessary to make the actor liable occurred, i.e., the place of injury. The modern majority approach (Second Restatement §§ 6, 145, 146) applies the law of the state with the most significant relationship to the occurrence and the parties, considering four contacts (place of injury, place of conduct, domicile/residence/place of business of the parties, place where the relationship is centered) weighted by the § 6 policy factors, with a presumption that the place of injury governs in personal-injury actions unless another state has a more significant relationship. A minority of states use governmental interest analysis (Currie), Leflar's better-law approach, or simply lex fori; courts in all approaches apply forum procedural law and a public-policy escape valve.
How do I practice choice of law: tort questions?
The fastest way to improve on choice of law: tort is targeted, adaptive practice — working questions that focus on your specific weak spots within this sub-topic, getting immediate feedback, and revisiting items you missed on a spaced-repetition schedule. Neureto's adaptive engine does this automatically across the UBE; start a free 7-day trial to see your sub-topic mastery climb in real time.
What's the most important distinction to remember for choice of law: tort?
The pivotal distinction is between methodology and outcome: the same fact pattern can yield different governing law under lex loci delicti (mechanical place-of-injury) versus the Second Restatement (policy-weighted contacts). Read the call of the question for the methodology cue (e.g., 'most significant relationship,' '§ 145,' 'governmental interest') and resist the temptation to short-circuit to whichever law you think is 'fairer' — the bar tests the analytical framework, not your equitable instincts.
Is there a memory aid for choice of law: tort questions?
For the Second Restatement contacts, remember 'I-CDR': Injury, Conduct, Domicile/residence, Relationship-centered. Then run them through the § 6 policy lens. For methodologies overall, remember 'L-IBL-F': Loci, Interest analysis, Better law, Lex fori — plus the dominant Second Restatement most-significant-relationship test in the middle.
What's a common trap on choice of law: tort questions?
Defaulting to lex loci delicti when the call signals the Second Restatement
What's a common trap on choice of law: tort questions?
Forgetting the § 146 personal-injury presumption favors place of injury
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