Five-Step Babcock Approach
(1) List the factual contacts
with each state.
(2) Note the different state laws
(3) Find out the policies underlying each
state’s law by consulting legislative history and court decisions. EXAM TIP
: Find out which state’s law would favor π and which would favor D.
(4) Relate the facts to the policies
to see if the state has an interest in seeing its law applied. EXAM TIP
: Does the party being favored by a state’s law reside in that state? If so, that state has an interest.
- (5) Apply the law of the state with the greatest governmental interest in the outcome. Characterize the conflict:
- (a) False conflict where only one state has an interest is having its law applied—Apply the law of the only
- jurisdiction with an interest in the outcome of the litigation.
- (b) True conflict where two or more of the states involved have an interest in the litigation, and one of them is the forum state—apply the law of the forum state unless the interest of the other state is much greater.
- (c) Disinterested forum case where two or more states have an interest in having their law applied and the forum is not one of them—court can either (1) Apply the law that is closest to NY law; or (2) apply the better law. Most NY courts will apply (1).
- (d) Unprovided-for case where no state has an interest in applying its own law—then courts most often will just apply the forum’s law.