Conflict of laws Outline.Docx

8/10/2019 Conflict of laws Outline.Docx

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Downloaded From OutlineDepot.comConflicts of Law Outline

Prof. RooseveltFall 2011

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TABLE OF CONTENTS

I. Introduction: What is Conflicts, and why does it matter? ..................................................................................... 1

II. Choice of Law ....................................................................................................................................................... 2

A. The Traditional Approach ................................................................................................................................ 2

B. Recurring Practical Issues ................................................................................................................................ 3

Domicile ................................................................................................................................................................ 4

Characterization ..................................................................................................................................................... 5

Substance/Procedure .............................................................................................................................................. 7

Renvoi.................................................................................................................................................................... 9

Public Policy ........................................................................................................................................................ 11

Penal and Tax Law .............................................................................................................................................. 13

Pleading and Proving Foreign Law ..................................................................................................................... 13

C. Modern Approaches ....................................................................................................................................... 14

Statutory Solutions .............................................................................................. Error! Bookmark not defined.

Interest Analysis .................................................................................................................................................. 16

Most Significant Relationship Test ...................................................................................................................... 26

Better law ............................................................................................................................................................. 29

Pervasive Problems.............................................................................................................................................. 30

Complex Litigation .............................................................................................................................................. 32

Cyberspace .......................................................................................................................................................... 34

III. Constraints on Choice of Law ........................................................................................................................ 34

A. The Constitution ............................................................................................................................................. 34

B. State-Federal Conflicts ................................................................................................................................... 42

C. International Conflicts .................................................................................................................................... 47


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Conflicts of Law Outline

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I. INTRODUCTION: WHAT IS CONFLICTS, AND WHY DOES IT MATTER?

Introduction

o Legislative Jurisdictionwhen a state can assert its authority over a person/event and say that its law determines the

consequences

o Reasons to apply your own states laws

Predictable (once the suit is filed)

Judges are good at applying local law

Avoids unfair surprises (sort of)

Promotes local policies

o Reasons to follow another states laws

To do otherwise disrespects sister state polices (Full Faith & Credit Clause issues)

The alternative would unfairly surprise defendants (Due Process Clause issues)

Unpredictable (at the time of the action)

Not applying the other states law would lead to forum shopping

o Different approaches to choice of law

Traditional

Territorialismlaws of the state have force within it, but not outside ito Comityreciprocity among mutually respectful sovereigns

o Vested rights -common law notion that vested rights pre-exist a judges determination;

this comes crashing down withErie and legal realism (rights dont vest; judges recognize

and even create them)

Scott, A Man of Color v. Emerson (S.Ct. of Missouri, 1852)

Missouri Illinois

Internal LawSlavery is permissible Slavery is prohibited (fugitives

returned; travelersnot free;

sojourners (there for indefinite

period of timefree)

so the difference is

domicile

Choice of LawFor status issues, apply the law of

the state where status time was last

changed

o Forum is MI

o The forum always starts by consulting its own choice of law rules

o Traditional rule for status cases is the law of the forum where the status last changed should be applied; so here

the Missouri court should have applied Illinois law and said it was free

o Question becomes whether slave has acquired an Illinois domicile or not.o Probably the answer is yes since he was there for two years

Licra et UEJF v. Yahoo! Inc. (Tribunal de Grande Instance de Paris, 2000)

o Yahoo sued by LICRA and UEJF for having objectionable content on their auction site (Nazi paraphernalia, etc.), in

violation of French law

o French court applies their own law on the theory that the harm was caused in France; orders Yahoo! to take all

reasonable steps to remove the objectionable content


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o This doesnt mean that the judgment will be enforced by U.S. courts

Yahoo!, Inc. v. La Ligue Contre le Racisme et LAntisemitisme (N.D. Cal. 2001)

o Yahoo! brought suit in federal court seeking a declaratory order that the French judgment couldnt be enforced b/c

the only way to comply would be to remove the content from their main site, which the 1 stAmendment prohibited

o Extent to which the U.S. honors the judicial decrees of foreign nations is governed by the comity of nations; U.S.

courts will recognize a foreign judgment unless enforcement would be prejudicial or contrary to the U.S.s interests

o On appeal 9thCir. vacated district court decision on the grounds that the court lacked personal jurisdiction of LICRA

II.

CHOICE OF LAW

A. THE TRADITIONAL APPROACH

o Still followed in about 18 states

o Location of the forum doesnt matter, nor does the domicile of the parties; all that matters is where the tort is

committed or where the K is accepted

o

Emphasis on rules and limits judges discretion, but there are still escape devices o Every states laws have force within that state and not outside of it within the border of any state only have one set

of laws in effect, and it is the local laws

Traditional approach for torts

o Alabama Great Southern R.R. Co. v. Carroll (Ala. 1892)Lex loci delicti; apply law of the last act necessary to

complete the tort, in this case the place of injury. Example of case where traditional rule gets bad result,

because its surprising.

Facts

is a brakeman for R.R. (AL MS). Injured in MS due to the Alabama negligence of

coworkers.

PAL; DAL; RR goes from TN to AL to MS and 90% of tracks are within AL; K formed in

AL; negligence occurred in AL; forumAL; InjuryMS

Law

ALcan recover against RR

MScant recover against RR

Localizing rule under the traditional approach is the last act rulewhere the last act necessary occurs; here

it is where the injury occurslex loci delectiso the courts apply MS law and so P cant sue

Exceptions, even under the Restatement, to the last act rule

o Standard of carestandard should be taken from the law of the place of the actors

conduct

o Person required, forbidden or privileged to act under the law of the place of acting

should not be held liable for consequences in another state

Lex Loci Delicti

ProCon

Most of the time it might be sensibleSometimes it is arbitrary and only takes into account

where the last act occurs

Doesnt allow forum shopping; uniformityMight not be uniform if not all states follow LLD


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PredictableGets legislative intent wrong

Easy to apply (although not always, e.g. latency period

for drugs)

Expresses the sovereignty of the stateOpens the door for selfish states

Traditional approach for contracts

o Milliken v. Pratt (1878)Lex loci contractus; apply the law of the place where contract is accepted.

Facts

D is wife who signed $500 guarantee in ME. ME P's are suing her to collect a debt but she

defendsby saying K is void. Unilateral contract, its performed (and thus accepted) in ME.

PME; DMA; KME; ForumME

Law

ME

o Contract is valid, because wife can make it MA

o Contract is invalid

Holding

Court finds that ME law applies

o Last act rule for K is where the contract is formed i.e. where it is accepted

o LLC is different from Law of Domicile (regulations on capacity follow person

everywhere)

For Domicile: State is best acquainted with its citizens and can best judge whos

competent to make a K

For LLC: Increased business/travel makes it more convenient; protects business

expectations

o 1934 Restatement

Law of the place of contracting determines the validity and effect of a promise

Duty for the performance of which a party to a K is bound will be discharged by compliance w/ the law of

the place of performance of the promise

In determining the place of contracting the 1934 Restatement switched from the last act rule (Beale) to the

principal event necessary to make the contract (see p. 23 for different rules for different kinds of contracts)

o Lex Loci Contractus

Pros

Uniform

Predictable

Here in Ks even more than torts there is reliance on a legal regime so this is important

Cons Maybe not that uniform and predictabledrawback is that it requires you to go somewhere else to

form your contract, weird middle ground

B. RECURRING PRACTICAL ISSUES

Traditional Rule with respect to property


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o In Re Barries Estate(Iowa 1949) (validity of will)For real property the state in which property is located (situs)

is the law that will govern a conflict. Here, the revocation of a will is governed by the law of the state of the situs

of the land.

Facts

PIL relatives; ObjectorsChurch; LandIA; WillIL (had void written on it); DecedentIL

Law

ILo Will was revoked

IA

o Will was valid

Holding

Iowa property owned by an Illinois decedent should be distributed according to the terms of a will

valid under Iowa law, even though an Illinois court had rejected the will on the grounds that it had

been revoked.

Traditionalist state (here IL) can disregard another states judgment(IA) purporting to affect interests

in land located in that state (IL)

o A judgment basically has to be respected if it is final, valid and on the merits b/c of the FF&C

Clause, but despite this the court finds that the judgment isnt binding w/r/t land in Iowa. Soeven though you have an IL judgment, Iowa law controls b/c it concerns real property

o Real property thought to be special b/c it doesnt move; For personal property it is generally

situs law although there are often exceptions for inheritance and marital property

o Real property is w/in the exclusive control of the located state; located state has greatest

interest; easy to apply

Property divided into

Movables

o Situs at point of relevant transaction

Immovable (real property)

o Situs always the same

DOMICILE

o Not that important under the traditional approach; more important for status b/c status is generally governed by the law

of the domicile state

Reasoning: "it is desirable that some of his legal interests should at all times be determined by a single law . . .

particularly in matters where continuity of application of the same law is important, as family law and

decedent's estates." Restatement 2d, 11 comment c

o Become more important for the modern approaches

o Different scenarios and approaches to domicile p. 33-36

White v. Tennant (W. Va. 1888)Law of domicile controls decent of property/estate. Acquiring new domicile requires tha

a person enter the new state with an intention to remain there for an indefinite period of time.o Facts

White lived in WV then bought a plot in PA; unloaded goods there, but then wife got sick so they went back to

WV; White died in WV

PWV; WifeWV/?; DeathPA; Old homeWV; ForumWV

o Law

PA


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Widow only gets half of estate

WV

Widow gets whole estate

o Holding

White domiciled in PA. Short presence there was enough

Law of domicile governs the distribution of an estate

White gave up his WV domicile for PA domicile b/c he intends to live there and does so (however briefly) Modern rule is that once you make it to a state thats enough to establish domicile (e.g. you are living in a hotel

while looking for a house)

CHARACTERIZATION

o Different rules for Ks, torts, property. So there is a threshold question of what kind of issue we are dealing with

o KRWe shouldnt say we need a special choice of law solution when we have a difficult case, but instead should take a

step back and look at a normal case

o Particularly relevant in cases w/ (1) intrafamily immunity, (2) contractual relationships, and (3) substance/procedure

distinctions

Levy v. Daniels U-Drive Auto Renting Co. (Conn. 1928)Characterization used as an escape device. Court(re)characterizes case as a contract case in order to hold rental agency liable since liability accords with states policies.

o Facts

D, a car rental agency doing business in CT, there rented a car to Sack. The P, Levy, was a CT resident who

was a passenger in the car. He was injured due to Sacks negligence, with the injury taking place in MA.

PCT passenger; DCT rental agency; ForumCT; DriverCT; AccidentMA

o Law

CT

Imposes vicarious liability on rental agencies for injuries caused by the negligent operation of their

vehicles; rental agency liable

MA

Has no such statute; rental agency not liable

o Holding

Court characterizes this as a contract claim, not a tort, and so says that P has a right of action even though the

injury was in MA, since the K was accepted in CT.

The purpose of the statute is to protect the safety of the highways by giving rental companies the

incentive to only rent to competent drivers

Statute made liability a part of every K in CT and such liability arising out of the K depends on the law

of the place of K, unless the K is to be performed elsewhere

Here characterization is being used as an escape devicethis case is structurally the same as Carroll but the

court is saying it is a contract claim to avoid the arbitrary result

Characterization will always be necessary under the traditional approach and any other approach that has

different rules for different types of cases (and the traditional rule doesnt tell you ho w to characterize)

o KR: What if this was a purely domestic case?

Characterization does not pose the same sort of problem. A P can plead both a tort and a K cause of

action. He may in fact be able to state a claim on both theories, though he will not be allowed

duplicative recovery.


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KR suggests similar approach can be used in multistate case. P can invoke whatever rights a states

law gives him. Need not characterize case to decide what rights are available. Need only ask if P can

state a claim on a given theory under a given states law.

So appropriate question in Levy, is actually can Levy state a claim under any law, on any theory?

o No tort MA claim since no vicarious liability (why they re-characterize it)

o No tort claim under CT law, under LLD it is not available for injuries suffered outside CT

o No K claim under MA law, since K made in CTo Yes K claim under CT

Haumschild v. Continental Cas. Co. (Wis. 1959)Court uses depecage and characterization as escape devices. Here gets the

right resultthough.

o Facts:

Wife sues husband/insurer for his negligence in a car accident

PWI; DWI; AccidentCA; ForumWI

o Law:

CA

Forbids tort actions among spouses

WI

Allows tort actions among spouses

o Holding:

Interspousal immunity should be governed by the law of the marital domiciliary(WI). Court uses

depecage and characterization to reach this conclusion since it does go against LLD.

Court says two issues presented: (1) tort claim and (2) capacity to sue. The tort claim would be governed by the

place of the accident, CA. However, capacity to sue, as a family law issue, would also be governed by the

territorially appropriate law, namely the law of marital domicile (WI)

Result is depecage - applying different states laws to different issues

Probably makes sense hereWI legislature would want their law to apply; CA doesnt have much

interest in frustrating the WI policy

KRUseful way of thinking about choice of law

o The CA Supreme Court said that capacity to sue should not be decided by law of place of accident, because that is

fortuitous and irrelevant, its more properly determined bythe law of the domiciliary. So CA would apply WI law

which suggests that WI law is the proper result

o Can divide state laws into their internal laws and their choice of laws

WI CA

Internal No

immunity

immunity

Choice of

Law

LLD Domestic law

(Emery v.

Emery)

o Think about in terms of scope and priority

o What rights, what claims and what defenses do the different states laws give these people? What do we think?

o States like their domiciliaries and want to protect them/keep them whole

o How do the different rights under states laws interact with each other? What rights should prevail?

o Could you look at a foreign states choice of law rules to determine their interest in the cause of action?


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KR says yes; so in Haumschild you could look at CA choice of law, which says to look at WI law, and therefore

say that this shows lack of interest by CA courts

KRp. 106 (supp) this is a false conflict: CA law grants a claim and no defense opposes it

Tricky Characterizations problems (p. 44-46)

o Venuto v. Robinsonvicarious liability: tort or contract

o Preine v. FreemanK law regarding release of tortfeasors

o Caldwell v. Goredamn in LS affects adjacent land in AK; tort or property?o Swank v. Hufnaglewoman executed mortgage for a property in another state; K was made in a state that allowed this;

property was in a state that didnt

o Burr v. Becklersimilar to above except laws reversed

o Cutts v. Najdrowskiinter vivos gift or testamentary gift?

SUBSTANCE/PROCEDURE

o Basically a straightforward characterization problem, but gets special treatment b/c it comes up very often and it has

been dealt with explicitly and extensively

o Procedure will be exclusively forum law (ease of administration); but there are concerns with this

o

Choice of law analysis may be different fromErieanalysis b/c of the reasons that you are making the distinctiono One possible approach is to distinguish between right and remedy:

Law of the place where the injury was received determines whether a right of action exists, and the law of the

place where the action is brought regulates the remedy and its incidents, such as pleading, evidence, and

practice. (Levy v. Steiger)

Grant v. McAuliffe (Cal. 1953)Court characterizes survival statute here as procedural; this comports with intuitions, but

the characterization itself appears to be strategic escape device to achieve this desired result, rather than principled.

o Facts

Car accident in AZ where negligent driver dies shortly after accident

PCA; D (administrator)CA; TortfeasorCA; ForumCA; AccidentAZ

o Law

AZ

Says tort doesnt survive death of tortfeasors

CA

Tort does survive death of tortfeasor

o Issue

Whether survival statute is substantive of procedural?

o Holding

CA court classifies issue of survivability as involving what claims could be brought against the decedents

estate, hence a procedural issue, governed by forum law, so tort claim survives.

Argument for substantive law

Live D is an element of the claim; cant have a tort w/o one ; it is outcome determinative

Argument for procedural law

Looks like a statute of limitation; unlike a wrongful death statute b /c this doesnt create a cause ofaction, it just prevents the abatement of one

Characterization problem will vary between substantive/procedural according to the nature of the problem;

survivorship had been found to be substantive in another context

Here court says it is procedural b/c it doesnt create a cause of action (although it also looks like Traynor prefers

CA law as a matter of policy)

o KR


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This is a right for the wrong reasons kind of case. CA cares how the loss is allocated between the two CA

domiciliaries, whereas AZ doesnt. According to distinction here

Survival Statute isnt about regulating conduct, it is about who bears the cost; who should decide how to

allocate losses? The state that has a legitimate interest isnt the one where the conduct occurred but rather where

the parties are domiciled.

Kilberg v. Northeast AirlinesAnother example of procedure/substance characterization being used as escape device

o Sympathetic NY courts said that damage ceiling of MA was procedural in a case where a plane had crashed in MA

Statute of Limitations

Traditionally proceduraland therefore controlled by the forumhowever, most states have adopted statutes saying if its

barred in other courts its barred in our courts.

The modern practice is either to provide that all limitations periods are substantive, or to adopt borrowing statutes that

provide that claims must meet both local and foreign time limits.

Problem is that limitations periods serve two different purposes:

o Procedural

Promote the litigation of fresh, rather than stale claims by encouraging prompt filing. Interest at stake here

is appropriate allocation of judicial resources, and it belongs to the forum where litigation takes place

o Substantive Allow Ds peace of mind after some fixed period of time. This purpose requires balancing the value of

repose against the gravity of the injury; it is part of the creation of the cause of action

Protecting Ds after a certain period of time is a policy you can attribute to the legislature of the cause of

action.

If NJ creates a cause of action, should also be able to say when that cause of action disappears

Weird to have another state say when you can sue on a different states cause of action

If limitations periods always serve both interests, should not expect much luck in distinguishing between the two. The test

that courts have developed asks whether the limitations period is specifically directed to the cause of action (in which ca se

it is a condition of the right) or whether it is more general (in which case it is not).

Kim suggests that if assume all SOLs are substantive and procedural, then you have to meet both periods. This is what most

states do, coincidentally.

Bournias v. Atlantic Maritime Co., Ltd. (2d Cir. 1955)Court uses specificity test to determine the SoL is in this case

procedural, and so forum law applies.

o Facts

P brings claim in fed court (maritime) for a Panama Labor Code violation

Psailor; DPanama; ForumNY Fed; AccidentPanama

o Law

Panama

statute of limitations has run

NY Fed

no corresponding claim, so no SoL

o Holding

P can bring claim. He succeeds under specificity test because D failed to satisfy that Panama limitations

period was specifically aimed against the particular rights when the P seeks to enforce

Rule: SOLs are classified as procedural with exceptions

SOLs in wrongful death are substantive

Ask was the limitation directed to the newly created liability so specifically as to warrant saying that

it qualified the right?


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o Traditional approach would say that SoL is procedural

Criticized b/c it can produce forum shopping and its easy to apply; perhaps meant to express local policies on

how to prioritize the court system. Harlan says its an accident of history

o Specificity Test Was the limitation directed to the newly created liability so specificallyas to warrant saying that it

qualified the right? (I.e. does it affect the right and not the remedy?)

Factor: is the SoL tied to specific right, or does it apply to a broad range in a large code (as it does here)? Doesnt matter if foreign court interpreted it as substantive/procedural for some other purpose

o SoL

Substantive: releases assets/worries of Ds class

Procedural: serves forum interest in preserving fresh claims over stale claims

o Harlan says this SoL fails specificity test so the claim can be brought; two ways to think about limitations periods:

It is procedural and governs the way you act in court and encourages you to bring a case quickly for procedural

reasons

Or there is a substantive interestDs interest in peace of mind

Harlan thinks specificity is indicative of substance

o Here US had no substantive or procedural interest that was greater than Panamas; Harlan got it wrong

o Many states have adopted borrowing statutes: if you are suing on a foreign cause of action then it must be timely under

foreign law

o KRWe dont really know how to distinguish procedure/substance; best way to do it is to distinguish between law that

governs your out of court conduct and law that governs your in court conduct

o Uniform Conflict of Laws-Limitations Act (1982)states decision to apply the substantive law of another state will

carry with it that states limitation period as well

o 1988 Amendment to 2d Restatementunless exceptional circumstances exist, the forum (1) will apply its own SoL

barring the claim; and (2) will apply its own SoL permitting the claim, unless the limitation period of the state whose law

will otherwise govern the merits bars the action

RENVOI

o When your CoL Rules say apply some other states law do you go straight to their internal law or do you look at theirCoL rules?

Traditional theory (1934 Restatement) said reject renvoi

KRthinks a good territorialist should consider what the other state would do because you are enforcing

rights that vested under state B law and so it should matter to you if State B would say that no such

rights exist. But if you ask this you will be incorporating their CoL rules and this could lead to the

recursive cycle, which KR thinks we should be concerned about b/c it suggests that there is something

wrong with the conceptual framework of the traditional system

Exceptions for cases where uniformity was especially important: rights to real property located in a foreign state

and marital status

But this doesnt work if everyone accepts renvoi; KR this isnt as much of a problem as you might think; its

not just that you think uniformity is important, but also you think that only the foreign state has authority to

decide the rights in question (e.g. NY courts are saying Swiss courts have greater interest; Swiss courts

wouldnt look to NY law)

o KRCoL rules are substantiveb/c they are about the rights that you have and not the way by which you enforce those

rights; e.g. LLD is about who can claim a right under the states law

o Choice of law rules may refer either to a states internal law the law that would be applied to a purely domestic case

w/o multistate contactsor to its whole the law that state would apply to the multistate case actually presented, by


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reference to its own choice of law rules. If the forum state refuses to consider the choice of law rules of the state to

which it refers, it is said to reject the renvoi; if it follows the foreign choice of law rule it is said to accept the renvoi.

If the renvoi is accepted and the state whose choice of law rules are examined refers the case back to the law of the

forum state, there is said to be remission; if it refers to a third state, a transmission. Finally, the renvoi is said to be

partial if the foreign choice of law rule is found to refer to the internal law and total if the foreign reference is als o to

whole law.

o 2nd

Restatement: still only two uses of Renvoi When there is a disinterested forum and the courts of all interested states would reach the same result

When the objective of the particular CoL rule is that the forum reach the same result on the very facts involved

as would the courts of another state

The need for uniformity would be important enough to look past the normal reference to internal law

when:

o The other state clearly has the dominant interest in the issue and its interest would be

furthered by having the issues decided in a way that its courts would have done (e.g. land

title)

o Where there is an urgent need that all states should apply a single law in resolving a certain

question (e.g. use of the whole law of decedents domicile at death to secure uniformity in the

distribution of movables)

o There is internal law (tort, contract, etc.) and choice of law (LLD, LLC) w/in the category of substantive law

o Internallaw= law that would be applied to a purely domestic case. e.g., merely looking to the law that characterizes

the dispute at issue. This is rejecting the renvoi.

o Whole law= the law that state would apply to the multistate case actually presented by reference to its own choice of

law rules. This is accepting the renvoi

Forum Law Foreign Law

Substance Procedure Substance Procedure

Internal LawTort, Contract

Apply if choice

of law says so

Filing deadlines,

limitations

Always apply

Internal Law Apply if CoL

says so

Never apply

Choice of

Law

LLD, LLC

Always start

In Re Schneiders Estate(Sur. Ct. N.Y. Co. 1950)Example of Renvoiforum state points to foreign states whole law,

which points to forum states internal law, so apply forum

o Facts

Swiss citizen domiciled in NY and dies in NY, but leaves real property in Switzerland. In his will he attempted to

dispose of his property in a manner contrary to Swiss law which gives ones legitimate heirs a right to specified fractions

of a decedents property, which cannot be divested by a testamentary act.

NY Switzerland

SubstantiveExercise will Cant dispossess heirs from certain

share


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ConflictsLaw of the situs (entire law,

including choice of law rules)

(renvoi)

Internallaw of domicile governs

citizen living abroad (so refers to

internal law of NY)

o Holding

NY Court applies Swiss law based on property situs, and determines that Swiss law would apply NY law.

You always start by looking at forum CoL rules; here NY CoL says law of situs and they use the whole

law; we apply whole law b/c we want NY court to do what a Swiss court would do; here they say that the

Swiss court would apply NY internal law (but not choice of law rules, so it ends here)

Shows how unlikely it would be that you get a recursive problem; the Swiss court wouldnt say we must

defer to NY courts

o Notes

Deference is asymmetrical, so only one state will usually be doing it

Traditional approach generally said reject it -- don't look at choice of law rules of foreign state. In theory,

no real reason. In practice, probably won't help you. In some special cases, Beale said do accept choice of

law, like where uniformity is important (this will work because its not really uniformity, its really

deference, so only one state will think we should look to other)

PUBLIC POLICY

o Definitely an escape device

o You can just pull this in to change the result when you dont like the other states law; it is in an important escape

device b/c it is always a possibility

But if you are faithful to Loucks this has to be an offensive foreign law and one that the forum state has a strong

interest in

It also has to do with the kinds of contact that the forum has

Loucks v. Standard Oil Co. of New York (NY 1918) (car accident)Classic formulation of the public policy escape

device. Dismissed without prejudicefind a new forum.

o Facts PNY; DNY; ForumNY; AccidentMA

o Law

MA

o Does not allow full recovery

NY

o Allows full recovery

o Holding

Under traditional approach LLD would apply and therefore MA lawbut this would not allow recovery.

If NY court were to apply its own law it would be ignoring the language of the statute, which is meant to apply to

wrongful deaths in New York. But even if the statute didnt say that, if you were serious about the traditional approach

then NY law only operates w/in the borders of New York; if you dont like MA law then you can refuse to enforce MA

right in NY courts (proper resolution would be to dismiss w/o prejudice)

The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of

expediency or fairness. They do not close their doors, unless help would violate some fundamental principle of

justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.

o Notes

What if you have not an offensive claim but an offensive defense?


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P comes to court asserting that foreign law entitles him to relief. If a

defense exists under foreign law, that law does not entitle him to relief. The

forum cannot claim to be enforcing rights vested under foreign law if that

law, viewed as a whole, does not grant the P a right to recover.

In more modern terms, one might say that a court cannot claim to be

applying foreign law if it only applies part of that law

Mertz v. Mertz (NY 1936) (another car crash)Public policy exception; example of the right result, but weird way to getthere. Use of PP exception to apply forum law when issue is marital immunity.

o Facts

P brought action in NY against her husband from personal injuries which she sustained in Connecticut

through her husband's negligent operation of a car

PNY; DNY; AccidentCT; Forum NY

o Law

NYhusband not liable to his wife

CThusband is liable

o Holding

Traditional approach would be LLD, which invokes CT law. However, NY law applied through public

policy escape device.

Definition of public policythe law of the state, whether found in the Constitution, the statutes or judicial

records; quotes Loucks but then says it isnt up to the courts to say which laws are more important

You cant use public policy exception this way or you wont be applying choice of law at all

Law of the forum determines capacity of parties to sue or be sued. NY attaches reciprocal disability here;

no other state can remove that by its law. Loucks says you cant read in public policy this says you

cant read one out

o Notes

Court appears to be motivated by the fact that CN has no business restructuring the spousal relationship of

two NY domicilairiesthat is, NY has the dominant inters in the issue and so it should be governed by

NY law

Right result, weird methodology

Holzer v. Deutsche Reichsbahn-Gesellschaft et al. (NY 1938) (D discharged P b/c he was a Jew; Nuremburg laws)Publicpolicy exception. Public policy exception is not invoked for foreign law that is anti-Semitic. Point being there is

something more at play than simply how repugnant law is when we invoke PP. Clearly the right result though that

German law doesnt apply, whereas Mertz is a smokescreen.

o Facts

A fired German Jewish employee brought a wrongful discharge claim against his German employer

PGerman; DGerman; K PerformedGermany; ForumNY; K madeGermany

o Holding

Here is an example of an offensive foreign law, but the court says law of place where K was made applies

NY Court accepted employers defense that it had been required by law to fire employee and dismissed

the claim on the grounds that there is no liability for breach when performance has been made impossible

by operation of law

Whatever we think og German law on the point, its pretty clear that NY should not control this

The employment contract was formed and performed in Germany and the idea that NY law

should govern rights and liabilities between employer and employee in Germany is quite odd

How can you reconcile Mertz and Holzer?


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o In contrast to Mertz, this does not look like a case where the issue is more appropriately controlled by NY.

Contacts with NY were much stronger in Mertz than in Holzer, and an implicit judicial sense that NY law

should govern Mertz but not Holzer helps explain the different outcomes

o Public policy may sometimes be used as an escape device not so much because the foreign cause of action is

repugnant but because the court feels that he result under ordinary choice of law analysis is incorrect. Also, the

repugnance of a foreign right has more to do with the way in which it is given effect in a particular case than

with how intrinsically offensive it is Flow chart of repugnance of law on X axis and degree of involvement on Y axis

Another point is that recognizing foreign law may be more or less offensive depending on what recognition

requires, and that in turn depends on what the connection of the litigation to the forum is.

Applying CN law in Mertz would have required the NY court to allow in NY precisely the conductan

inter-spousal tort suitthat NY prohibited.

In Holzer, by contrast, recognizing the validity of the Nuremberg laws, as they applied to an employer-

employee relationship in Germany, would mean nothing more than denying recovery to the employee.

Things would certainly have been different had the court been asked to allow a German company

operating a factory in NY to fire its non-Aryan employees.

So the stronger the connections between a case and a forum, the more likely it is that giving effect to an

odious foreign law will trigger the PP exception

One difference is that Holzer has no connection to the forum except its where the suit is brought whereas in

Mertz they were NY domiciliaries

In Mertz NY law had something to say on the subject, whereas in Holzer it didnt so you could say that in Mertz

both states were trying to regulate

KRmaybe Mertz is best understood as a choice of law case and NY law has priority; Holzer: German law

creates rights and obligations whereas NY law doesnt; you cant decide this case under NY law it cant be a

choice of law question

Mertz: public policy exception is a smokescreen for choice of law decision

Holzer: theres no argument that NY law should regulate this

Could you say that German law creates a right and NY court will recognize it, but wont recognize the

defense?

o Very disrespectful to Germany to pick and choose the elements of law you likeo But NY does want to help out P and here there is no other forum available, but is it fair to D? D was

required to do what he did by German Law

PENAL AND TAX LAW

o Courts of one state wont enforce thepenal (i.e., criminal) and tax laws of another state

o Justification: if a sovereign state wants to prosecute someone they should use their own courts; this isnt a dispute

between private parties (less true than it used to be w/r/t taxes; see p. 83 for cases). Its a suit between a sovereign

and an individual. That state has its own courts and its own proseuctors, and so must use them to enforce its laws.

o Some difficulty in figuring out when a law is penal

Cardozoa law is penal when its purpose isnt just reparation to the one aggrieved, but vindication of the

public justice

Definitely criminal laws

Punitive damages sound penalFirst Restatement includes them

Damage multipliers are harder to characterize, and get inconsistent treatment

PLEADING AND PROVING FOREIGN LAW


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o Under traditional approach when you are bringing a claim the steps are

Characterize (tort, K, etc.)

Segregate issues into substance and procedural, and for substantive must decide what kind of

claim they present

Localize

Where is property located, K formed, tort occurred etc. Maybe some exceptions, escape

devices Usually use last act rule

Apply the rule appropriate to whatever type of claim is before it

LLD for tort

LLC for contract

If get a foreign law now, ask:

If the foreign cause of action should be rejected as offensive to the forums public policy ; and

Should it use foreign choice of law rules as well? (renvoi question)

If after all that you get pointed to foreign law, then apply foreign law

But how know what the foreign law is?

o Party has to plead it

o Should parties argue about it in their briefs, or should experts come?o Traditional answer is experts

o Under the traditional system, according to Beale, treat it as a fact to be pleaded and

proved by the party whose cause of action or defense relies upon foreign law

Facts are proved to the fact finder (maybe judge, maybe jury); if it goes to

the jury it is pretty much impossible to have appellate review and at best it

is going to be circumscribed appellate review

Juries are not good at law, even more so w/r/t foreign law

States have generally gotten around it; statutes now often authorize judges

to take judicial notice of foreign law

Walton v. Arabian American Oil Co. (2d Cir. 1956)Example of trying to discern what the foreign law is.

o PAK; DDE/NY; InjurySaudi Arabia

o Complaint didnt allege Saudi law, nor did he prove it at trial; trial judge didnt take judicial notice of it and gave

directed verdict in favor of defendant; Court of appeals affirms

PARTY AUTONOMY AND STATUTORY SOLUTIONS

o Foreign willsmost states have passed legislation validating wills executed outside the state of administration

o UCC 1-301 (p. 92-94)doesnt try to list out all of the possibilities; instead basically says partys choice governs.

This gives predictability, but one objection to party autonomy is that the state whose law doesnt get chosen are

pissed b/c you are destroying the limits that the state placed on freedom of contract

Consumer contracts were excepted; they still required a reasonable relation between the transaction and the

chosen state and even then could not deprive the consumer of non-waivable protections of his home law

An otherwise effective choice of law would be invalidated if it selected a law whose application would becontrary to a fundamental policy of the state or country whose law would govern in the absence of the

parties choice

o No fault insurancetypically cover loss regardless of fault while eliminating negligence claims; almost all contain

provisions delimiting their scope in multistate situations


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o Borrowing Statutesdirects forum to dismiss claims under foreign statutes of limitations in appropriate

circumstances; about 2/3 of all states have such provisions; when referencing foreign limitations the usual view is to

include tolling statutes as well

Pritchard v. Norton (1882) (P signed appeal bond and K w/ D to indemnify him if he has to pay bond)Rule of validityif

theres one states law that allows K to be valid and one that doesnt, choose the valid one.

o Facts

PLA; DNY; K executedNY; K performedLA; ForumLAo Law

NYInvalid. no consideration b/c Ds didnt request P to be a surety so its void

LAValid. preexisting liability of P as surety was consideration

o Holding

Court says that LLC is a presumption and that in this case it has been overcome by the intentions of the

parties, so apply LA law.

Choose the law that would make the K valid b/c that is most likely what the parties intended

Party autonomy would argue parties interests and freedom of contract

The significance of party autonomy is that you can do what another state will let you do what you

want to do, not that you can do whatever you want

Siegelman v. Cunard White Star Ltd. (2d Cir. 1955) (Ps wife injured on cruise from UK to NY; ticket has English law clause)For issues of K interpretation, parties choice governs because it doesnt expand their contractual power. For

issues of validity, use test.

o Facts

Siegelman brought suit to recover for injuries suffered by his wife aboard Cunards ship during a trip from

NY to England. Ticket was bought in NY, and said that all questions arising on this K shall be decided

according to English law. Said 1 year from accident to sue.

PNY; DEngland; TicketNY; ForumNY Fed

o Law

This is maritime law so we are applying federal choice of law rules

EnglandPs claim barred by statute of limitations

o Holding

English law should be applied to the interpretationof the K. Choice of law clause is always good for interpretation b/c the parties could have just included the

K law of whatever states law they wanted in the K itself

Not enhancing contractual power to give effect to interpretation that is chosen

Validationis a harder question b/c you are increasing party autonomy and may be offending states

interests

In order to be permitted to govern, the law of the parties intention must (1) be bona fide and

(2) must be that of a jurisdiction having some relation to the agreementgenerally either

the place of making or performance. See Rest 2d Section 187

Substantial relation to the K, is an important limit on choice of law for validity of K. place of

execution not really given that much weight here because its too easy to manipulate. Were

looking for a reason that will give a state a reason to care about the K Here court uses UK law for both; relieves court of having to resolve conflicts of laws question; parties

intention will be permitted to govern validity if:

2d Restatement (p. 105-06)KRThis is worth knowing

o If the issue is something that you couldve been more explicit about in the K (e.g. writing out a certain states rule

for interpretation) thats fine, but this doesnt work for validity (e.g. cant have an appendix saying K is valid)


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o Uses substantial relationship/reasonable basis test to balance out party autonomy for things that couldnt have been

made explicit in the K

In determining a substantial relationship think about how easy it would be to manipulate

o But you cant choose the law of a state, even if it has a substantial relationship, if it offends the policy of a state

whose law would otherwise apply(p. 108-09)

Wyatt v. Fulrath (N.Y. 1965)Parties choose NY law regarding how property is vested to estate, and NY law has some

interest because thats where property is located, so given this interest and parties choice, it overrides Spains interesto Facts

Parties (husband and wife) are in Spain; property (cash & securities) is in NY; K is formed in Spain; forum

-NY

o Law

Spainsays property is community property of the spouses and only half should have gone to the wife

when the husband died

NYParties had agreed to NY law of survivorship which would give all the property to the survivor

o Holding

NY law applied, she can get all of the property.

Court says that the fact that the property is in NY gives them the right to decide which forums law will

apply

Court is basically taking the same approach as the 2d restatement, although it didnt exist at the time; NY

has some interest and the parties have expressed interest so this overrides Spains interests adopts NY

law

Hope v. Brewer (N.Y. 1892) and Estate of Crichton (NY 1967) (p. 117) (husband trying to cut wife out of will)

o Different from Wyattb/c it doesnt look like the parties are working together and so there is a weaker case for party

autonomy and state interest therefore plays a larger role

C. MODERN APPROACHES

INTEREST ANALYSIS

What does it mean to say a state is "interested"?

o Construct the policies behind the law, try to figure out if they are affected by application to this particular set of facts

o A state is interested if its laws reach the facts of the case. More intuitively, would the legislature care about it, is the

policy at case. To operationalize it, it should be as though you are interpreting a statute. Does the statute apply to

these facts

Chesny v. Marek (7thCir. 1983)Domestic conflict

o Concerns interaction between (1) Rule 68 of the FRCP, which allows D to offer a settlement, and if it is rejected and

the judgment ends up being less than the settlement amount the offeree must pay the costs incurred after the making

of the offer, and (2) 42 USC 1988, which allows a prevailing plaintiff to get his attorneys fee s reimbursed in a

civil rights suit under 42 USC 1983

o Question is whether Rule 68 offer prevents P from getting an award of attorneys fees; dispute is whether costs in

Rule 68 includes attorneys fees where a statute allows attorneys fees to be taxed as costs recoverable by theprevailing party

o This isnt a multi-state case, but is useful b/c it can show us the tools that might be used in such a case

o Posner looks to the purpose of the statute and says it is substantive b/c it serves the goal of promoting civil rights

actions and if rule 68 tried to take away that right it would be abridging a substantive right, which it cant do (per

Rules Enabling Act); so he reads it narrowly so that it doesnt conflict

Says that 1988 was passed more recently so court will vindicate that congressional purpose


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Marek v. Chesny (1985)

o Court affirms circuit decision but Burger says it isnt substantive, but they dont conflict anyway

If you just say that Rule 68 costs sets up the background framework then 1988 fits neatlyit says as

part of costsso if you dont get the costs then by the plain terms of both the rules you cant get the fees

Probably giving too much credit to Congress to say they had Rule 68 in mind when they drafted 1988

o The reason for having both Marek v. Chesny and Chesny v. Marek is to show that reasonable jurists can disagree

Brainerd CurrieMarried Womens Contracts: A Study in Conflict-of-Laws Method

o Revolutionizes the way people think about choice of law (see p. 126)

o Why did states stick w/ the territorial approach if it produces perverse results in of the cases?

Leads to uniformity of results regardless of the forum

As long as both states (1) characterize it the same (2) apply the same territorial rule (3) locate the

connecting factor (where it takes place) the same way, (4) dont invoke public policy, etc.

o Currie traditional approach doesn't provide enough uniformity vs. the costs of arbitrary impairment of one state's

interest w/out advancing that of another

Milliken v. Pratt

o

ME statute--married woman competent to bind herself by contract Concerned with ME security of transactions

o MA statute--married woman could not bind herself by contract

Concerned with MA married women

2 3 4 5 6 7 8 9 10 11 12 13 14 15

Is MA

interested?

Y Y Y Y Y Y Y

Is ME

Interested?

Y Y Y Y Y Y Y

IA typeT U F F F U F T T U F F T U

1st

Restatement

MA MA ME MA MA ME ME MA ME MA ME MA ME ME

Yinterested; Nnot interested; UUnprovided for case; FFalse Conflict; TTrue conflict; to say a state is interested is to say

that its law reaches a certain transaction; case falls within the scope of a states law

o In the unprovided for case, Currie says apply the law of the forum; this is a bad idea b/c it destroys uniformity

o Also says that where there is no good reason not to, you should apply the law of the forum; again doesnt promote

uniformity and increases interstate friction

o In true conflict cases he says apply the law of the forum

o Territorial approach is arbitrary and random if youre thinking about state policies; Curry says you can do better if

you think about state policies. Its hard to do better in true conflict cases, but with false conflicts it is a lot better b/c

you promote that states policies w/o injuring the other states policies. The question is whether you can really

identify false conflicts and what are the systemic costs of interest analysis.

o Method

Construction/Interpretation: Same policy analysis as in domestic cases to determine whether substantive

law applies to situation (conventional statutory interpretation).


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First ascertain policy and then ask if it comes into play w/ the facts to create an interest.

o Actual intent- Explicit legislative directive (usually for policy but not interest).

Problem here w/ collective action.

o Constructive Intent- Pulls reasonably plausible norms but still defers to legislature.

(e.g. no extraterritoriality presumption for Congress).

o Independent Norms- No significance granted to legislature (Currie is against this but it

still leaks through - e.g. rejecting a state's choice of Beale as not in express disavowal ofinterest.). Objective definition of interests would move to Bealean style of external

norms.

It will hinge on definition of interest but same thing happens in domestic cases (Posner v. Burger

in Marek).

o This approach is basically indistinguishable from the 2d Restatements Most Significant Rela tionship test

False Conflicts

Tooker v. Lopez (NY 1969) (NY girls (MI students) crash in MI; MI has guest statute) False conflict example, only NY

interested, so apply NY law. Common domicile case so good advertisement of Currie.

o Facts

P (Tooker, passenger)NY; D (Lopez, driver)NY; AccidentMI; Car/InsuranceNY; ForumNY.

Also Silk was a passenger (MI)

o Law

MI has guest statute defense that permits recovery only for gross negligence

Intended to protect drivers (probably MI drivers)

Intended to protect insurers (probably MI insurers)

NYno guest statute Intended to compensate injured people (probably NYers and people injured in NY)

o Holding

Since no MI insurer was involved this is a false conflict apply NY law so recovery

Best advertisement for Currie approach because state of the wrong and injury differs from the state of the

common domicile of the P and the D

However, the MI passenger, under interest analysis would not be able to recover since there was no reason

to give her the protection of NY law

Troubling that people who are similarly situated can receive different choice of law outcomes?

Maybe its a consequence of American federalism

Kim asks, is this a Privileges and Immunities problem to say NY people get benefit of this

statute but MI people do not? Under traditional approach LLD MI law (possible escape devices: against public policy, guest statute is

procedural, its status related)

NY court says (relying on Babcock) that the purpose of the MI guest statute is to prevent defrauding of

insurance companies; if that is the case then MI shouldnt care if its law is applied b/c the car is insured in

NY. In terms of NY interests, NY has a policy of requiring tortfeasors to compensate victims for his

negligence and this case involved NY domiciliaries and a NY-based automobile


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Babcock v. Jacksonsame situation except w/ Canada; court rejected LLD and refused to apply

Ontario guest statute b/c relying on one fact that had no relation to the purpose of the conflicting

laws resulted in decisions which frustrated the interests and policies of the State in which the

accident had taken place as well as NY. Here the court had held guest statute was to prevent

collusion against insurance companies.

Of course this is unlikely to be a collusive suit since the parties are dead

But if you look at Dym v. Gordon you could say that MI is interested; but NY court rejects thiso Dym was basically the same as Babcock, but the Colorado law in question permitted

recovery for gross negligence and the court found that the CO law had the purpose of

preventing insurance fraud and also protecting against ungrateful guests; therefore it was

a true conflict and NY court decided to apply CO law

o Court here says Dym decision was incorrect in how it interpreted the policy behind the

CO guest statute

Dissent says that it is unfair that Tooker can recover but Silk cant

KR: maybe Silk can recover under interest analysis b/c MI is interested in letting Silk recover but

not interested in providing the guest statute defense to Lopez, a non-MI domiciliary

This case should make IA look good; little bit harder if you look at the MI P;

Schultz v. Boy Scouts of America, Inc. (NY 1985) (NJ kid raped by NJ scoutmaster, but occurred in NY)Common

domicile and loss allocating rule at issue = False conflict, apply NJ law. Loss allocating rules point to domicile being

interested, conduct regulating rules point to place of injury being interested. Harder case than Tooker though

because shared domicile bars recovery, so the loss-allocating rule seems to conflict with the conduct regulating rule of

the locus state. (Only really easy false conflicts are when the law of the common domiciles loss allocating rulegrants

recovery while the law of the locus state bars it)

o Facts

PNJ; D (Boy Scouts)NJ (time of events) & TX (time of suit); D (Franciscan Brothers)OH; injury

NY

o Law

NJ has charitable immunity

Loss allocating rule

NJ charities shouldnt bear the costs of their negligence

NYcharities can be sued

Hold NY charities liable

o Holding

False conflict, apply NJ law since NY not interested given that we have NJ charity.

When conflicting rules involve standards of conduct (conduct regulating)

Law of the place of the tort will usually have a predominant, if not exclusive concern because the

locus jurisdiction's interests in protecting the reasonable expectations of the parties who relied on

it to govern their primary conduct and in the admonitory effect that applying its laws will have on

similar conduct in the future assume critical importance and outweigh any interests of the

common-domicile jurisdiction

When conflicting rules involve allocating losses (limiting damages in wrongful death actions, vicarious liability, immunities etc)

Locus jurisdiction has at best a minimal interest in determining the right of recovery or the extent

of the remedy in an action by a foreign domiciliary for injuries resulting from the conduct of a co-

domiciliary that was tortious under the laws of both jurisdictions

Interest analysis is notcontact counting. Only those contacts that relate to purpose of the particular law in

conflict


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When rules are conduct (like rules of road) law of place of tort has almost exclusive interest

When rules are loss-allocative law of common domicileb/c parties accept both benefits &

burdens of living in that jurisdiction

Schultz is a harder case because in cases where the shared domicile bars recovery, its loss-allocating rule

seems to conflict with the conduct-regulating rule of the locus state. In Schultz, that is, NJ's policy about

loss allocation (that charities should not bear the costs of their negligence) comes into conflict with a NY

policy that is in part about loss-allocation (Nyers believe that charities should bear the costs of theirnegligence) but also n part about conduct regulation (NY seeks to deter negligence even of charities).

In short, the set of very easy false conflicts is quite narrow: it is not all common-domicile cases where loss

allocating rules are at issue; it is only those cases in which the law of the common domicile grants recovery

while the law of the locus state bars it

Kim says

This case makes a lot more sense to be thought of as a false conflict. NY wants to hold liable

since it thinks this conduct is wrongful and wants to deter it. NJ wants to allocate looses in a

different way.

NY is admittedly interested in this, but what if the situation was reversed? (PNY; DNY; InjuryNJ)

NY would be more interested in mirror-Schultz

Is there any reason to think that you should only be able to apply NY law in one situation?

o The idea is equalitywe are trying to use choice of law to decide cases where states have

competing authority and we want to do it fairly

o So you can ask what would we do if the situation was reversed

Franciscan Brothers

From a no immunity state (OH)

Why is it getting the benefit of NJ charitable immunity law?

o This is supposed to get you to think about how to set a states law to promote its

purposes; if the purpose of charitable immunity is to protect the charities in your state it

doesnt make sense to extend it to Franciscan brothers, but if you think that the purpose is

to encourage charitable works in NJ or w/ NJ residents then you could make an argument

that it should be extended

It isnt always easy to establish what interests are at stake and there is the ability to manipulate, which the

court can do (and does in this case) in order to create a false conflict case, which is easier for them to

decide

Here the court says that the NY rule is to prevent burden on NY medical providers; this seems like

a weak reason

o KRWhen determining interests of a policy/rule it should be the same analysis as if it

were only being applied to the domestic situation; this isnt what happens in real life

You can say that NYs interest isnt that great in this case, but you cant really say that it is non -existent,

which is what the court is saying

Is charitable immunity actually just loss-allocating?

You could argue that it encourages charitable conduct so it is conduct regulating

You could also argue that it will influence charities in that they will be less careful about not beingnegligent

Do you trust judges to make this distinction?

Maybe not

o E.g. strict liability as conduct regulating when it should be loss allocating

o Dissent


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NJ loss-allocation interest isnt present b/c D isnt in NJ anymore; NY has paramount interest in protecting

against such torts. NY rule denying immunity isnt a loss-allocation rule. False conflict so NY law applies

Cooney v. Osgood Machinery, Inc. (NY 1993) (Cooney injured while cleaning machine. gets worker's comp from Mueller

and then goes after Osgood for mfg. negligence. Osgood tries to bring in Mueller on contribution claim)

o PMO; D (original seller)NY; AccidentMO; ForumNY; Original ownerNY; Mueller Co.MO

o MOstatute bars tort claims by employees and contribution claims against an employer; NYpermits contribution

claimso Neumeier RulesNY approach to CoL for loss-allocating rule only; doesnt apply to conduct regulating rules(this

can be a very hard distinction to make, see Padula v. Lilarn (p. 162) where court finds that negligence/strict liability

is conduct regulating when they should have found that it was loss-allocating); if we were concerned with conduct

regulating rules the court says it would usually apply LLD b/c that is presumably the place with the greatest interest

For common domicileapply that law (false conflict)

For split domicile where each party is favored by home lawapply the law of the place of the injury (true

conflicts)

Has some advantages: uniformity (as opposed to Curries solution) and doesnt discriminate

against foreigners

Court justifies this by saying that ordinarily it is the place with which both parties have voluntarily

associated themselves (although arguably not true for Osgood) and also on the basis of reasonableexpectation

Other split domicile

Unprovided for caselaw of the place of injury unless displacing that normally applicable rule

will advance the relevant substantive law purposes without impairing the smooth working of the

multistate system or producing great uncertainty for litigants [basically unless theres some good

reason not to]

True conflicts with tort not in a home statesame as above?

o Judges usually use this as an excuse to balance

o Neumeier Rules differs from Currie b/c it says that you go back to territoriality as a tie breaker for true conflicts and

unprovided for cases

o Court says that purpose of MO statute is to restrict costs of industrial accidents and afford a basis for assessing such

costs whereas the purpose of the NY rules purpose is fairness to jointly liable tortfeasors o This is a 2ndRule case so law of accident is tiebreaker MO law; of course

In re Allstate Insurance Co. (NY 1993) (dispute over the meaning of an insurance contract)

o Court says that rules in Cooney and Schultzselect the law of the state w/ the strongest governmental interest in a tort

case, but K cases often involve only theprivate economic interests of the parties, so public policy analysis may be

inappropriate and center of gravity or grouping of contacts choice of law theory should be applied

o But hedges by saying that in some cases policy analysis is still appropriate for contract cases

Unprovided for Case

Erwin v. Thomas (Or. 1973) (wife sues D for loss of consortium due to his injuring her husband)Unprovided for case, so

applies forum law. Seems like an arbitrary result, Kim would rather have the case dismissed.

o Facts

Erwin (Washington) was injured in Washington by D Thomas (Oregon). P Erwin's wife sued D Thomas

for loss of consortium in an Oregon forum

DOR; PWA; InjuryWA; ForumOR

o Law

WACL rule that wife cant sue for loss of consortium

Protects WA Ds


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Mrs. Erwin has no cause of action under WA law

ORstatute allows recovery

Protects OR wives, or wives of men injured in OR

Mrs. Erwin is neither

o Holding

Court applies OR law, quoting Currie and basically treats the case as if everything was in OR

Court says that WA statute is to protect WA Ds and OR statute is to protect OR women so theres nointerest here

This is the unprovided for case and courts here tend to apply something like Neumeier or follow Currie and

just apply forum law

KRRight result would be that P cant state a claim (think about analogy to purely domestic case)

Resolving True Conflicts

Lilienthal v. Kaufman (Or. 1964) (D is a spendthrift whose guardian can declare his debts void)Follows Curries

suggestion and applies forum law since its a true conflict. D spendthrift wins and K not enforced.

o PCA; DOR; KCA; ForumOR

o OR statute voids Ks by spendthrifts; CA has no such provision

o Court says purpose of CAs statute is to protect the validity of Ks and CA creditors; purpose of OR stat ute is toprotect the spendthrift

o Court says neither states interests are clearly more important (true conflict) and so they will apply OR law b/c

courts are instruments of state policy (this is actually what Currie suggested)

Pro: simple, cant be manipulated, advances forum policies

Con: arbitrary, encourages forum shopping (disuniformity, unpredictability), slights interests of other

states, probably going to discriminate against out of staters

o Hard to know how to prioritize different states laws ; judges might unjustly favor forum policies (but then a rule that

says apply forum law in cases of true conflict is just as bad)

The right answer maximizes aggregate state interest

This could be an objective question or a subject one

o

Objective: which interest is more important (e.g. freedom of K is more important thanprotecting wives from making Ks)

But why do we want a court deciding what interests are more important?

o Subjective: how important is it to a states legislature(as opposed to the objective

question of how important is the interest)

KR - Our conflict of laws system shouldnt try to promote certain policies like

freedom of K, we should try and maximize state satisfaction and let states

prioritize as they see fit; judges shouldnt be able topromote whatever policies

they happen to like

Judges need to look at how deeply-held these policies are in each state

o How to do this? Do states ever bargain with each other? No

(they cant). But if you look at the federal legislature they

have the power to determine choice of law but they do nothingabout it

Restrained Interpretation

Look at mirror image case in order to decide. (FFCC require choose only one of mirror images?)


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Bernkrant v. FowlerModerate and restrained interpretation to resolve the true conflict by construing away CAs

interest. Prophylactic rules dont work well when parties arent aware of them.

o Facts

Bernkrants are Nevada residents who owed John Granrud money for the purchase of a Nevada apartment

building

John orally offered them a sporting proposition whereby in exchange for partial payment and refinancing,

he would add a provision to his will forgiving any debt remaining at the time of his death They accepted -- coincidentally Granrud died a year and a half later, but hadn't gotten around to making the

promised change to his will.

PNV; DNV (but dies in CA); KNV; Forum CA

o Law

CAStatute of frauds makes the oral agreement unenforceable

NV - enforceable

o Holding

Looks like a true conflict, but court says CA has no interest in invalidating and so its not a true conflict.

Court says an unpredictable application of CA statute of frauds (since parties would have had no reason to

believe CA law would apply) would not serve its purpose

moderate and restrained interpretation of CAs interest; the purpose of forum law is not just to benefit

forum domiciliariesthe statute of frauds exists to make people put certain promises in writing; that

purpose isnt furthered here, but parties had no idea that they would be subjected to theCA statute of frauds

Wont always be that easy to take this approach (e.g. NV court would have a tougher time

justifying this)

[[Currie thought this was a good example of moderate and restrained interpretationyes CA is interested,

but not very much; similar to Schultz where although the court said NY wasnt interested it really was, but

just not very much]

o Notes

Sort of like Miranda rights. Prophylactic rule is the easiest example, not too many other cases

Outcome is that, it looks like a true conflict, but its a false conflict really.

What would CA legislature want on these facts? They wouldnt want application to these set of facts.

Only need to do this if really dont want to just, apply forum law. So moderate and restrained approachbecomes less important

Comparative impairment

Benhard v. Harrahs Club(Cal. 1976) (couple crosses in NV, drinks there, drive home drunk and crash into P in CA)

Resolves true conflict by applying CA law NV law wouldnt be very impaired by allowing liability forjudgments

only against Casinos that actively solicit CA business, but CA law would be quite impaired. Aggregate interests for

each future state of world to determine maximization of policy satisfaction.

o Facts

Two CA residents drove to Harrah's in NV where they were served alcoholic beverages allegedly even after

their state of intoxication was obvious. They drove home and after crossing the border back into CA they

negligently collided with a CA motorcyclist, who was severely injured. Harrah's regularly advertised for and solicited business in CA, and the casino was reasonably close to CA

border

PCA; D (casino)NV; AccidentCA; ConductNV; CustomersCA; ForumCA

o Law

CAlaw extends liability to casino (dramshop laws)

Seeks to protect safety of its residents on the roads of CA


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Has an interest in affording this protection to all CA residents injured in CA

NVno such civil law, no liability for casino

Acting to provide economic protection for a vital part of its economy from too much liability for

wrongs of others

o Holding

This is a true conflict case; purpose of CA law is to promote safety and prevent DWIs in CA; purpose of

NV statute is to protect tavern keepers from civil liability Apply CA law, because its policy would be more significantly impaired than the NV policy if not enforced

Is the what would happen if parties bargained, which is what the court says it is doing, an appropriate

approach? (assuming they actually reach a resolution and have equal bargaining power)

Now we are looking at the aggregate policy satisfaction so you take into account the degree of impairment;

which state would be more impaired?

CA act doesnt have to cover everyone, but D does advertise in CA

CA cant reasonably effectuate its policy of D subverts it

NV doesimpose criminal liability for Ds act so no real new duty

In Milliken MA has, like ME, a general policy of enforcing K's. It's policy of protecting MA women from

K's would be entirely subverted but it would still gain from enforcement of K. Thus, applying ME law to

enforce K would benefit ME by 10 and MA by 5 but applying MA law to protect MA women wouldbenefit ME by 0 and MA by 10.

Game Theoretical Approach (Baxter) Insight added is that true conflicts don't have to be zero sum (gain

advanced matched by other state's loss).

Apply As Law Apply Bs law

State A Payoff10 0

State B Payoff7 10

Total17 10

Cant actually quantify though b/c its too uncertain. You can look at legislative history, how old it is, howoften used in purely domestic cases, etc.

o Comparative impairment is nice in theory but a disaster in fact

o Most courts are saying they compare, but really they are just balancing

Comparative Impairments and Policy-Selecting Rules

o Developed by Baxter and adopted only in CA

o Considers the discussion that would take place of legislators from the two states negotiated: each would give up

what it wanted less to get what it really wanted

o You want to subordinate the external objectives of the state whose internal objective will be least impaired in

general scope and impact by subordination in cases like the one at hand (p. 194-95)

o Kramer (note 5)not all true conflicts are zero sum i.e. each state presumably cares more about some true conflicts

than others; the problem is identifying which state has the greater stake, which Kramer thinks is too complex anddifficult for judges. Kramer would adopt a set of policy-selecting rules

These rules should reflect policy preferences for existing laws e.g. substantive trumps procedural

o KRIn practice this is a mess if you dont have rules

Principles of Preference

o Caversdeveloped seven rules to use in resolving true conflicts


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1strule - in tort claim law of the place of injury should apply if it more protective of Ps than the law of the

states in which the defendant resides or acted;

Cipolla v. Shaposka (friends from school, guest statute in DE)

o SchoolDE; PPA; DDE; Accident DE

o Cavers second principle of preferenceif youre the defendant and your homes state will

protect you it will prevail if you are acting in your home state; if you arent acting in your

home state then plaintiffs law will prevail (similar to Neumeier) For Ks Cavers said apply protective law of a state if the party protected was from that state and the affected

transaction was centered there

KRMaybe basing things on fairness isnt that bad; this basically creates a territorial tiebreaker that will

get things right most of the time and that people will think is generally fair


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MOST SIGNIFICANT RELATIONSHIP TEST 6. Choice-Of-Law Principles

1. A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

2. When there is no such directive, the factors relevant to the choice of the applicable rule of law include

a. the needs of the interstate and international systems

Little independent significanceb. the relevant policies of the forum

Incorporates IAc. the relevant policies of other interested states and the relative interests of those states in the determination of the

particular issue,

Incorporates IA

Relative seems to imply more balancing than IA thoughd. the protection of justified expectations,

Movable property...want to validate a trust of it

But in area of negligence, for example, parties act without giving thought to the legal consequences of theirconduct or to the law that may be applied, so factor d plays no role

e.

the basic policies underlying the particular field of law,

Choose the law whose application would best achieve the basic policy underliyng the field of law

For Ks, this generally means validating the Kf. certainty, predictability and uniformity of result, and

g. ease in the determination and application of the law to be applied.

Similar to uniformity and predictability

Since it offers different general rules for different kinds of cases (torts, Ks, etc) it retains characterization problem of First

Restatement that interest analysis avoids. Embraces depecage, unlike the First Restatement, directing courts to perform their analysis on an issue by issue basis

Lacks an underlying theoryo Apply the law of the stae with "the most significant relationship" to the transaction and the parties with respect to that

issues 145. THE GENERAL PRINCIPLE TEXT

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which,

with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in

section 6.

(2) Contacts to be taken into account in applying the principles of section 6 to determine the law applicable to an issue inc lude

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated accordingto their relative importance with respect to the particular issue.

**Review:

Work through section 6 factors, but make sure that you connect each one of those factors to the contacts.


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So if doing a tort issue, and talking about policy of some state, you should say:o This state's conduct regulating policy is at stake because conduct occurred in the stateo So make sure to connect section 6 factors to the contacts you're supposed to be taking into account

Work through section 6!o But each time talking about those factors, connect it to the contacts, (if you can, some its much harder to do

than others)

KRChoice of law is a spectrum w/ rule based on one side and policy based on the other. For rule based you have

territorialism and it follows rules for both true conflicts and false conflict. With more policy based approaches everyone

agrees that you should use policy-based solutions for false conflicts, but there are differences for true conflicts. Some people

want to go back a lot of the way to Rule Based (Neumeier, Forum Preference (Currie)) some slightly less so (Kramer,

Cavers) and some still want to stick with the policy based approach (Comparative Impairment, Moderate & Restrained, 2d

Restatement)

Restatement (Second) of Conflict of Laws

2d Restatement (p. 204-05)

o 1stRestatement attacked: you should be looking at policy instead of illogical rules (legal realists)

o Criticisms:

Ridiculously mushy, indeterminate thing that says take into consideration all relevant factors and give them

all the relevant weight

o Sympathetic:

We like the 1stRestatement most of the time; we dont like it for false conflicts, so dont follow it in that

case

It does create some presumptive rules and generally those rules are the rules of the 1 stRestatement except

w/r/t false conflicts where it basically takes the interest analysis solution

This was similar to the approach taken by Judge Fuld in Auten v. Auten (NY 1954) (English couple

separates and wife tries to enforce separation agreement under NY law; Fuld says non-English contacts are

entirely fortuitous) who had advocated what he called the center of gravity theory: courts, instead ofregarding as conclusive the parties intention or the place of making or performance, law emphasis rather

upon the law of the place which has the most significant contacts with the matter in dispute

Problem w/ this approach can be seen in Haag v. Barnes, which had facts similar to Auten, but

came out the other wayin one case the mans home law was applied, in the other the wifes

o Comments on the different factors (p. 206-07)

o So this is a 2 step process where the court (1) chooses a presumptively applicable law under the appropriate

jurisdiction-selecting rule, and (2) test this choice against the principles of 6 in light of relevant contacts identified

by general provisions like 145 (torts) and 188 (contracts)

o You are still going to have characterization problems (tort, contract, property, etc.)

Phillips v. General Motors Corp. (Mont. 2000) (pickup w/ sideboard mounted fuel tanks; Parents and brother die; one kid left

whos now living in NC w/ guardian; ensuing products liability case) Most significant relationship test used for tort

o Facts

PMT (at time of accident); DDE/MI; AccidentKS; PurchaseNC; ForumMT

o Law

P wants MT law, which has strict liability and no cap on damages; D wants KS law, which has comparative

negligence w/ a cap on damages

Documents

Conflict of laws Outline.Docx