Depecage
Rule / Approach
Depecage (French: “cutting up”) is the practice of applying different states’ laws to different issues within the same case. Rather than selecting a single governing law for the entire dispute, the court analyzes each discrete legal issue — liability, damages, defenses, statute of limitations, etc. — separately, potentially applying a different state’s law to each. The Second Restatement expressly embraces depecage (§ 145 refers to “the issue” rather than “the case”).
Elements / Steps
- Decompose the case into distinct legal issues: e.g., standard of care, contributory negligence, damages cap, statute of limitations, wrongful death, survival of action.
- For each issue, identify the state with the most significant relationship (under Second Restatement § 6 factors) or the state with the greatest interest (under interest analysis).
- Apply each chosen state’s law to its respective issue.
- Check for internal consistency: Ensure that applying different laws to different issues does not produce logically contradictory results (e.g., holding conduct both negligent and immune simultaneously).
Exceptions / Critiques
- First Restatement rejects depecage: The vested-rights approach applies a single governing law (lex loci delicti or lex loci contractus) to all issues in the case; issue-splitting was not permitted.
- Risk of inconsistency: Applying law A on liability and law B on damages may produce results that neither state’s legal system would recognize or endorse — a “Frankenstein” set of rules assembled from multiple systems.
- Administrative complexity: Issue-by-issue analysis multiplies the choice-of-law decisions in each case, increasing litigation cost and judicial burden.
- Forum-shopping opportunity: Skillful characterization of issues can allow a party to cherry-pick favorable rules from multiple states.
Policy
Depecage reflects the modern view that no single state has an equal interest in every aspect of a multistate dispute. A state may have a strong interest in regulating the conduct that caused an injury but little interest in the distribution of losses between out-of-state parties. Allowing issue-by-issue analysis respects each state’s specific policy interests and avoids the over-inclusion problem of applying a single law to all aspects of a case simply because that state was the place of injury or contracting.
Key Cases
- Babcock v. Jackson — NY court applied NY law on loss-allocation (Ontario had no interest) while implicitly accepting conduct-regulating rules of the place of conduct; an early illustration of issue-focused analysis.
- Schultz v. Boy Scouts of America — NY court separately analyzed each defendant-plaintiff pairing and each issue (charitable immunity, standard of care), reaching different results for different defendants based on their domicile.