Amy Coney Barrett & Brett Kavanaugh Question Attorney on Choice of Law in Hencley v. Fluor Corp.

Scrutiny of Choice of Law Arguments

• 🎯 Justice Barrett questioned the attorney on why South Carolina law should apply in the case, noting it seemed perplexing as a matter of conflict of laws.
• 💡 The attorney explained that the principal place of business being in South Carolina could lead to the forum state's law applying, which is not unusual.

Potential Application of Foreign Law

• ❓ Justice Kavanaugh raised a significant concern about the possibility of Afghan law applying, given the context of a suit against a military contractor in a war zone.
• 🤯 He described the scenario of enemy law potentially applying to such a case as "bizarre," contrasting it with how an American base would be considered U.S. soil.
• ⚠️ The attorney acknowledged that some lower courts have applied Afghan law in similar situations, but also mentioned other factors that are considered.

Federal Common Law as an Alternative

• ⚖️ Justice Kavanaugh suggested that if the default is Afghan law, it implies that federal common law might be a more appropriate alternative than the common law rule sought by the opposing parties.
• 🗣️ The attorney responded by stating that Congress has not displaced state law, including choice of law principles, and that other doctrines might preclude the application of foreign law.
• 📌 The attorney also clarified that the issue of choice of law was not central to this specific case, as the discussion was primarily about preemption.