CONFLICT OF LAWS
BLACK LETTER RULES 2
Property/Wills/Intestate succession 2
Marriage cases 3
ESCAPE DEVICES 3
Renvoi 3
Characterization 4
Substance/procedure 4
Statutes of limitations 5
Public Policy 5
Other escapes 6
Interest Analysis: Torts 6
JUDICIAL APPROACHES 6
SCHOLARLY APPROACHES 7
Cases 9
Interests to keep in mind 11
Interest Analysis: Contracts 12
Various approaches 12
Interest Analysis: Property 13
Choice Directed Solutions 13
Party Autonomy: Choice of Law 13
Autonomy: Choice of Court 14
Autonomy: Arbitration 15
Decedent Estates 17
Other Statutory Directives 18
C’l limits on COL 18
Limitations on Applicable Law 18
Obligation To Provide A Forum 20
JD AND COL 20
PJD 20
Relationship 21
COL & Fed Courts 23
Erie 23
Aggregate Litigation 24
Int’l COL 26
Judgments 27
w 27
Themes/values/policy
· Expectations – Ds and Ps
o But focusing on expectations means no single law in a particular forum.
· Is forum shopping good or bad?
o Predictability
o Uniformity
o Certainty
· States can democratically choose the law under which they want to live.
· State interests in regulating conduct.
· Personal law principle vs. territoriality
BLACK LETTER RULES
Torts
· Rest. 1 § 378: law of place of wrong determines whether there’s a legal injury. Place of wrong = last act creating a cause of action
o Generally, place of injury. But some cases where forum law applies, e.g. if hard to figure out place of injury, or if outcome would be the same.
· Is place of injury rule a good rule?
o If all states use it, then predictable.
o But may undermine regulation of conduct.
o Prices may reflect extent of liability à shape expectations.
· Ala. R.R. v. Carroll (Ala. 1892): Lex loci delicti.
CONTRACTS
· American rule
o Place of contract for certain issues (e.g. validity, capacity, etc.). Milliken v. Pratt (Mass. 1878) (married wife’s capacity): Place of K determines capacity.
o Place of performance for other issues
o UCC
§ Old: Law only if there’s a connection.
§ Proposed: No connection req’d, except when violates public policy (BUT not later withdrawn).
· English rule
o Parties’ intention; if unclear, then “closest and most real connection.”
o [1990: Rome Conv; 2009: Rome Reg]
· Rome Conv:
o Party autonomy – Parties may choose, but limited by “mandatory rules” of the country where K was made. But in Reg., eliminated “mandatory rules,” replaced w/ “overriding mandatory provisions.”
§ à Effect: If K connected w/ just one JD, then likely can’t choose another law. See Art. 3, 7.
§ Reg “overriding mandatory provisions” = “the respect for which is regarded as crucial by a country for safeguarding its public interests” (art. 9). à A court can apply its own law if it considers the law “overriding” à lots of discretion.
o Default rule (absent choice): Art. 4: “Most closely connected.”
§ Presumption (4.2): closest connection = “characteristic performance.”
· ROME I
o Reg: Categories, and then characteristic performance, or when “manifestly more closely connection.”
o à Reg moves toward performance, away from place of K.
Property/Wills/Intestate succession
· Land: situs.
· Movable property: Situs, but many problems (e.g. situs of stock certificate).
· Wills/trusts/estates:
o Land: situs (Barrie)
§ Estate of Barrie (Iowa 1949) (interp of “void”):
o Personal property: Domicile of decedent at death.
o Spouses – Domicile of spouses at time of ___.
o BUT REMEMBER:
§ Policy Q is governing status of property vs. determining who takes under a will (situs rule fractionalizes estate, but might be consistent w/ expectations).
§ Re wills, might be better to look at domicile at time of execution.
· Intestate succession à domicile:
o Domicile determined by law of forum.
o Domicile = physical presence + intent to remain indefinitely.
o TODAY, domicile depends on issue (old rule: unitary).
o White v. Tennant (WV 1888) (moved PA to WV, but <1 day): Domicile established upon arrival.
o Estate of Jones (Iowa 1921) (Lusitania): Death in transit à previous domicile until “new domicile is secured.”
§ NB: All beneficiaries were in England, so could make exception to rule.
Marriage cases
· RULE: Default = Place of celebration. But if violates PP, then apply domicile law (note: this is exception to PP exception, b/c not dismissed).
o PRO: Predictable, permits autonomy.
o CON: Allows couples to escape own state’s policy, esp. since that state responsible for benefits of marriage.
· May’s Estate (NY 1953) (NY couple married in RI, but incest under NY law): Place of celebration; doesn’t violate PP.
o Cf. dissent: yes it does, so apply NY law.
o Context: Couple had been married 35 years, maybe significant.
· Wilkins v. Zelichowski (NJ 1959) (NJ stat: Marriage by underage woman void if not confirmed): Statute demonstrated “strong public policy” against recognizing marriages of minor women in other states.
o Context: H went to jail, so statute directly on point.
· Rest 2: Most significant relationship to spouses and marriage (usually place of celebration unless violates PP of another state w/ most significant relationship).
· Dalip Singh Bir’s Estate (Cal. App. 1948) (2 wives under Indian law): Second marriage valid, doesn’t violate Cal. PP.
o Context: Only 1 wife was living in Cal.
· Silberman, Same-Sex Marriage: Use domicile at marriage b/c states shouldn’t have to permit residents to evade/undermine their laws.
ESCAPE DEVICES
Renvoi
· Always think: Does ref to law refer to whole law or local law?
o U.S.: (Rest. §8) default = internal law
o Europe: default = whole law.
o EXAM: Remember to look at purpose of statute, and so interpret COL instructions in light of that purpose.
· Alternatives: Find state w/ closest connection, then:
o Reject renvoi (MAJ): apply local law of B.
o Partial renvoi: apply whole law, but reference by B to A or C = local law.
o Whole renvoi: judge as state w/ connection would. Limits forum shopping, BUT could lead to endless cycle.
§ Schneider’s Estate (NY 1950): Administration of decedent’s land in Switzerland à whole law à Swiss law refers back to domicile (NY).
§ U. Chicago v. Dater (Mich. 1936) (capacity; guarantee signed in Mich., sent to Ill.): Capacity determined by place of K.
· Examples:
o Federal Tort Claims Act
§ Richards v. U.S. (US 1962): FTCA = whole law.
§ **Cf. normal presumption that “law” = local law. Why: Stat’s purpose = govt in same position as indiv.
o FSIA:
§ Foreign state liable in same manner as individual.
§ Q: If state law, then which state? How to choose, since it’s under a federal statue? A federal choice of law rule? But if yes, then might be different than result in state court. THIS HASN’T BEEN RESOLVED.
o Federal Preservation Act (national parks, army bases, etc.): Governed by laws of state where park etc. is located. Ex: Army base in La. Use La. internal tort law? Or whole law?
§ Arg for whole law: Analogize to Richards.
§ Arg for internal law:
Characterization
· Contract/tort
· Horn (Scottish Ct. 1878): Recharacterize as K.
· Interspousal immunity
o Haumschild (Wis. 1959): Recharacterize tort case as capacity case.
· Mertz v. Mertz (NY 1936): Forum law determines capacity.
· Levy v. Daniels’ U-Drive (Conn. 1928) (car rental company liability): Char. as K case à place of K.
o BUT context: Statute was specifically to apply to rental companies.
Substance/procedure
· Remember: Forum determines whether P or S.
· Pros of applying forum law (i.e. characterizing as procedural)
o Administrative convenience.
o Court would have to read pleadings for substance before e.g. figuring out filing deadlines.
o CORE – main purpose is administration of justice.
· Examples
o Rules of evidence
§ Reflect policy, but focus on adjudication, not determining rights of parties.
§ Most courts apply their own evidence rules, b/c purpose of the rules is judicial efficiency. But see SL rules (1 purpose is to decrease # of suits).
o Burden of proof
§ Levy v. Steiger (Mass. 1919): Procedural b/c doesn’t modify fundamental rights.
§ Sampson v. Channell (1st Cir. 1940): Substantive for Erie purposes, but procedural for COL purposes (that’s what state court would do).
§ Rest 2: Forum law, unless primary purpose of other state’s rule is to affect decision of the issue.
o Statute of frauds: Usually substantive.
· Grant v. McAuliffe (Cal. 1953): Wrongful death suit is procedural, so apply Cal law even though AZ would bar suit (A STRETCH, b/c AZ statute clearly substantive).
· In re Cohn (Ch. 1944): Rule re simultaneous death (à could go either way).
· Kilberg (NY 1961): Damages are procedural.
Statutes of limitations
· Remember underlying policy
o Repose for Ds
o Truth seeking
o Stale evidence
· Relationship to forum
o If justification = Ds’ repose, seems substantive, so maybe forum shouldn’t apply its own SOL (+ another state’s SOL is easy to apply).
o If justification = stale evidence, then focus on adjudication
· Rest 2 §__:
o If forum SOL bars claim à
o If forum does not bar but other state does, then:
§ If serves no interest of forum + would be barred by state w/ more significant relationship à barred.
§ [Seems to favor Ds (shorter SOL), but b/c P can always go to the other JD. Operates similarly to borrowing statutes.]
· West v. Theis (Idaho 1908): Tolling statute: If cause of action arises in another state and that state’s SOL bars claim, then Idaho bars claim too.
· Mack Trucks v. Bendix (3d Cir. 1966): Borrowing statute = state borrows another state’s SOL.
· Baxter v. Sturm Ruger (Conn. 1994): Test: Does SOL/SOR modify the right or the remedy?
o Right existed at CL à procedural.
o Right created by statute à substantive.
· Sun Oil (1988): C’l to treat as procedural.
· Remember:
o Forum SOL applies to enforcement actions too – doesn’t matter if original action was timely.
o If claim was created by foreign statute w/ own SOL, then may apply that SOL.
§ Bournias v. Atlantic Maritime (2d Cir. 1955) (Panama wrongful death SOL): If SOL specifically qualified the cause of action, then substantive.
Public Policy
· RULE: If applying foreign law would violate public policy, must dismiss. But today, courts often just decline to apply particular laws.
· Problems:
o Seems to leave lots of room for judicial discretion.
o Seems ex post, even though “public policy” is supposed to be ex ante.
o If forum is only place w/ PJD, then P left w/ no place to sue (likely not an issue post-Intl Shoe).
· Loucks v. Std. Oil (N.Y. 1918) (Mass. damage rule): Tort right of action in one state can be sued upon in another state (including punitive damages), unless violates “fundamental principle of justice.”
· Remember: Forum also won’t apply certain types of laws:
o “Penal” laws,
o Antitrust,
o Tax.
· Applying to just part of the law.
o SILB: This is half faith and credit.
· Holzer case (WWII) – Nazi decree: Against NY public policy, but no dice b/c act of state
Other escapes
· Redefine “wrong,” e.g. conduct instead of injury.
· “Penal” laws – forum won’t enforce
o Def = penalty awarded to the state for a public wrong.
· Revenue laws – but old; most states permit other states to bring actions in their courts to collect taxes.
Interest Analysis: Torts
· REMEMBER:
o Most cases are true conflicts.
o Also remember, when false conflict, would come out the same in either forum.
· Main shifts from old to new:
o Acceptance of dépeçage à characterization less important.
o No such thing as “vested” rights à choice is which law should govern.
o Escape devices less important b/c already accounting for policy.
JUDICIAL APPROACHES
· REST. 1 (Beale)
o Approach:
§ (1) Characterization
§ (2) Find connecting factor.
o Rationale
§ Uniformity
§ Predictability
§ Discourage forum shopping
o But remember escapes:
§ Procedural
§ Characterization
§ Renvoi
§ Public policy
· REST. 2 (Reese): Most significant relationship to occurrence and parties.
o Remember: Focus on each issue (embraces depecage).
o §145: Consider connecting factors
§ (1) Place of injury,
§ (2) Place of conduct,
§ (3) Domicile etc., and
§ (4) Place where relationship centered.
o §6: Consider policy-oriented principles
§ Needs of inter-state system
§ Policies of forum
§ Policies of other states
§ Parties’ expectations
§ Policies underlying substantive area of the law
§ Predictability, uniformity
§ Ease of determination of foreign law.
o Two interpretations:
§ Count contacts.
§ Contacts that give rise to policies.
o Specific applications
§ Wrongful death
· Interests: compensation for survivors, deterrence, limits on damages.
· NEUMEIER: For loss-allocating rules
o (1) Common domicile à false conflict
§ Babcock, Dym, Macey, Tooker, Kell, Miklovich, Schultz
§ Why: W/ common domicile, that state controls relationship.
o (2) Each local law favors domiciliary à place of injury
§
o (3) All other split-domicile à place of injury, except when displacing that rule will advance “substantive law purposes” w/out impairing multistate system or producing great uncertainty.
§
o REMEMBER:
§ Even w/in Neumeier rules, consider interest analysis + public policy.
§ Interest = policy that will be furthered on facts of instant case.
· ROME II
o Approach
§
o Why
§
SCHOLARLY APPROACHES
· Currie – Forum = default
o Main point: Apply forum law whenever it has legitimate interest in doing so.
o Interest analysis
§ (1) False conflict à State w/ interest