CONFLICTS OF LAW

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AUGUST 23 Conflicts or choice of law- which law applies when there are multiple jurisdictions Also called private international law when dealing w/ international Enforcement of judgments- if you have judgment in one state does another state have to enforce it? o In international context, there is no requirement o In US- full faith and credit clause, but that doesnt answer the question Law has differed for choice of law depending on area of law Traditional Approach- Restatement 1 of Conflicts o In place from 1800s-1950 across the country o Largely based on subject matter Conflict Theories- R2- codified 1973 (Modern Approach) o Came about in 1950s/1960s 1/5 of states (10) use traditional approach A number of states that when youre talking about marriage or real property still use R1 There is a bias for a forum to use its own law Most of conflict of law is case law, not statutory For this course, you need to do a minimum of doing each jurisdiction that is relevant and factors relevant to the jurisdiction (do case briefs!) P. 25- restatement for tortso The place of the wrong- that jurisdictions law applies Policy justifications for what the main rule is Dont need to know the elaborations on the rule; just think about why there may be diff approaches for a particular subject matter 3 hour exam- closed book Problem 1- Legally Male or Female? Kansas agreed not legally married- Kansas determined legal sex of woman who not a resident of Kansas and that marriage was invalid Kansas (non-recognition of marriage and inheritance invalid) o Marriage ceremony o H was former resident, still maintained a home there o Forum o Most of his assets were there WI (recognize sex reassignment and marriage/inheritance) o Couple lived in WI o W originally from WI- born there o Birth certificate changed and recognized in WI ** policy issues -what are the states interests in a particular ruling? -whats fair based on the facts of the case? -better rule? (apart from the facts) what the outcome is depends on what choice of law rules the court uses -substantive law rules (states internal laws) -procedural laws Problem 2- Yahoo Based on California; site selling Nazi artifacts. France- law prohibits sale of Nazi artifacts. Sued Yahoo b/c people in France could buy the artifacts. Yahoo France doe snt actually allow the sale, but it does have link to US Yahoo site. French court decided that it was possible for Yahoo US to be able to regulate who/who does not have access. Created injunction making them change set up for site, and made them pay fines. Ps then tried to enforce this in US courts. Come up w/ list of what factors suggest that

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o Was there malicious intent o How does it affect people o Fact that link was available o Policy? o First Amendment right o Feasibility o No duty to enforce international judgment o Illegal products on French soil o Feasibility for Yahoo o Free expression in the US vs. Harm to France-> Nazism International o Comity-/courtesy to recognize judgments o Court might be more comfortable enforcing fines rather than injunction

For thurs 15-35 AUGUST 25 Problem 3 (p. 9-12) o stolen artwork by the Nazis o Can D (who argues painting is his) argue that there is no jurisdiction over him b/c suit filed in fed district court in Louisiana? What case and standard applies? Hell say he has no contacts to the state. International Shoe- minimum contacts International Shoe: minimum contacts to the state (he prob does have it) o Does the federal statute apply? Why or why not? If the court determines US jurisdiction applies, then federal statute would apply. Whether or not the statute creates a private right of action (private right of action= can an individual sue under the statute) Question arises whenever there is a federal statute that is unclear If there is a private right of action (if D could sue directly) then the action would be in federal court under federal question jurisdiction Federal question jurisdiction- apply federal law instead of state law b/c it is a federal cause of action Diversity jurisdiction- different states Erie v. Tomkins: if court is sitting in diversity jurisdiction (not federal claim, it is state law claim) the you have to apply state substantive law (but we dont know which state law) Assuming no private right of action, then there is no diversity jurisdiction and federal statute doesnt apply? o What CoL rules must the Louisiana federal district court apply? Federal court must apply state substantive law rather than federal substantive law (Erie). **When a federal court sits in diversity, the court must apply the choiceof-law principles of the state in which the court is located ( Klaxon v. Stentor) Each state has its own choice of law rules (external law) and its own substantive law (internal law) o P. 14: 3 decisions with 3 different outcomes. Explain the basis for each Louisiana law b/c it was in Louisiana, he was in Louisiana, painting was there, etc.- * vested rights, this is about the movable thing Swiss law- Looks at it as a contract, where the sale happened
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3
Law of state w/ greatest interest- modern approach- governmental interest analysis (part of R2 approach)- looks at things through point of view of the states, which states cares the most about the particular case and why

ALABAMA GREAT SOUTHERN RAILROAD V. CARROL Shows problem w/ R1 approach (even though 10 states still use it- still need to know it) R1- knows as vested rights approach or territorial approach o Figure out for each area of law what the most important thing/time is and then the law of the state applies where the significant event occurs; the right vests when this important thing occurs o Benefit is stability and predictability Rule for nonintentional torts (negligence) o Lex loci delicti- the law of the place of the wrong/injury o Sec. 377 (dont need to know section numbers. But we need to know this one) o Where the place of the wrong iswhere the last act necessary occurred Alabama (Forum) o Where the employer (D-train company) is incorporated o Ps domicile o Route originates- vast bulk of train trip o Negligence occurred in Alabamafailure to inspect o Employment contract formed here o Liability (based on statute) Mississippi o Train uncoupling o No Liability (b/c master/servant) Rationale- middle of p. 17 o Negligence occurred in AL- court rejects this up to the point no injury resulted. No cause of action arose Court is applying black letter law on p. 25 o Fixed/vested rights (p. 20) Escape devices- ways courts would manipulate doctrine so they wouldnt get unfair result o Characterization- how you characterize the issues- what subject you put it under o P argued this wasnt about torts, said it was a K action and K law applies o K entered into in Alabama and that should follow P around P. 18 second paragraph- statute- part of employment K o Court response p. 19- if the act of 1885 becomes part of every K that would be a problem no reason can be conceived why law prior to passage of that act didnt also become part of every K (if you think about statutory right becoming part of Alabama employment K, court says that couldnt be b/c then otherwise you would have common law as part of it; wouldnt be the case b/c statute changed the CL? couldnt have been vested b/c then statute change Reasoning is wrong b/c its ignoring the fact that statute can change a vested right Based on how you characterize this as tort or K, then you have a diff argument for when the rights vest under first restatement Re-read 25-35 for tues SEPTEMBER 1 Traditional Approach st o 1 Restatement Territorial/Vested Rights 1800s-1960s o Idea is that right attaches at certain time, and once it attaches it travels with that person
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When right vests in certain territory/state, vested right travels with that person; but state where that right vests is the law that applies Modern Approaches nd o 2 Restatement most significant relationship 1970-present Trying to figure out how many relationships each party has w/ state and then look at which factors within the facts of the case show that there is more significant relationship with one state and not the other Grouping of facts for each jurisdiction/state to determine which overall has most significant/important (not numerically) Alabama Railroad o Governmental Interest Approach (aka interest analysis) Which government has the greatest interest in the case/the biggest reason why it would want it apply its law o

ALABAMA RAILROAD Alabama has almost all possible conceivable contacts Alabama thinks P should be able to recover Alabama Supreme Court applies Mississippi law nd Looking at 2 restatement approach- most significant connection is AL Looking at governmental interest analysis- AL has greatest interest Why should AL even consider applying Mississippi law? Why shouldnt they just apply their own substantive law? o Because of forum shopping (this was an issue in Erie)- Federal-State forum shopping o State-State forum shopping- thought is that state forum shopping shouldnt be problematic But it is b/c gives P an unfair advantage? o Erie holding: in state law matter, federal court has to apply state law Involved federal court sitting in diversity No question of federal law Federalism problem fed court must apply state law in diversity action (otherwise fed court is hearing state law claim but shoving federal law down state laws throat) Territorial Approach o Idea of right vesting at certain time is subject matter based Torts o Negligence Alabama Railroad case o Intentional Marra v. Bushee MARRA V. BUSHEE Vermont (fed district court sitting in diversity) o Forum o D (mistress- Esther) lives here o H lives here o Loss of consortium- would be liability here NY o P (Marra-wife) lives here o Marital home o Loss of consortium- would be no liability here Marra has good lawyer b/c her lawyer forum shopped Alabama NecessaryR1: rule for torts was the lex loci delicti- law of the place of the wrong-last act necessary (and thats why they said the last act that occurred was in Mississippi so they applied that law) In this case, under R1, the last act would be her hurt feelings= NY

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o Or last act would be sex= VT o Or when husband left NY b/c then he abandoned his wife= NY Vermont fed dist Court says VT law applies nd on the basis of territorial conduct of Esther 2 circuit says this is jury question and needs to go back to jury to determine if more allure in NY or VT What is the basis for the VT courts determination that VT law wins/should be applied? o Court first says this is a tort and were looking at R1 o P. 29 Although this court is inclined to agree w/ D that the VT Supreme Court would follow the modern test, set out in R2, the problem is academic b/c under either of the 2 conflicts test, VT law applies Court starts talking about R1: last event necessary o Says even though R1 applies this to unintentional and intentional torts, courts dont really do this. They apply last act necessary to unintentional torts and intentional torts get a diff test o Test is intentional torts= place of conduct (this still falls under traditional approach) o Why have diff rule for intentional tort? o Because intentional tort is a little more like a crime o Goal for negligence is compensation, but goal for intentional tort is punishment o Because goal is punishment, idea is where bad thing happened, thats the state that has the interest o It is similar to criminal law o P. 30 when compensation is a secondary factor and the punitive element is dominant, a state finds conduct wrongful because its people regard it as sinful or offensive to public morals, and the conduct, not the injury, is critical for purposes of applying the applicable law P. 31 analysis: Court is trying to figure out where place of conduct is and where injury is (Court finally concludes they are the same b/c they think consortium attaches to person and travels place to place) o P. 31 top: if, however, injury to consortium is conceptually similar to an injury inflicted on things or chattels, then the place of harm is the place where the force takes effect on the thing injured P argues that this wasnt about tort it was about contract?? o P instead said there was employment K in AL and it incorporated in it the workers compensation statute in AL o Recharacterization- try to find another way to describe what the issue is an move it from a tort to contract issue; used as an escape device o Contract- law of place of contracting applies; or where the breach is

p. 35-50, do exercise on p. 50 and submit notes through dropbox on TWEN

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SEPTEMBER 6 What law governs the validity or obligation of the K? o The law of the place of contracting, which is the principal event necessary to make a contract What law governs the performance of the K? o The state where the promise is to be performed (law of the place of performance/breach) What is the difficulty with this distinction? o There is no logical line which separates questions of the obligation of the K (which is determined by the law of the contracting) from questions of performance (determine by the law of the place of performance)

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o Problem arises when place of contracting is different than place of performance o Obligation and duties of performance can also possibly be the same thing Capacity to K is determined by the law of the place of the contracting, except for a land transfer. What law applies and why? o The capacity to transfer land is governed by the law of the state where the land is (but the capacity to make a contract for the transfer of land is governed by the law of the place of contracting) Why might the law where the land is often govern disputes about land under a vested rights approach? o Why is land special? o Land itself doesnt move, it is always in that place. And notion is that state where the land is has the greatest interest b/c its within its borders o This is why vested rights approach is often called territorial approach rights vest at a certain time in certain territory

POOLE V. PERKINS Case is about 2 towns that are the same town (but diff states Issue: the capacity of a married woman to make a K o P. 41- called the disability of coverture VA (forum) Doesnt recognize coverture, yes she would be liable TN At time the K was made she would not be liable When the suit was filed, she would be liable (because law was changed P and D: when K was made

P and D: both moved here at time of performance

Court ruled Perkins was liable, under VA law False conflict- both states now have the same law and outcome would be the same. TN distinction matters b/c law of the place of contracting was diff st P. 47 note 2: Pooles intent based approach is at odds with the 1 Restatement o Intent based approach (the courts reasoning in Poole)-P. 43 third paragraphWe are brought therefore to this question If Mrs. Poole We think not o Place of performanceVA o Place of contractingTN o Court doesnt say we decide the law of the place of performance governs. Court doesnt do this because in reality if youre talking about capacity, that means its about the law of the place of contracting o The Court then says law of place of contracting could depend court uses parties intent o If she actually came into VA to sign note she would have been liable court says this is a stupid rule; instead the intent of the parties matters o P. 44 In this view, all that is needed to divest a married woman of her domiciliary incapacity is an intention sufficiently evidenced or expressed to contract with reference to the laws of a state in which the contract is valid, and, where the contract, like the one involved here, provides upon its face for performance in a state whose laws will uphold it, such provision is alone sufficient to evidence an intention to bring the K within the influence of the laws of the latter State

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Court says she can get out her incapacity by expressing an intent to be bound; can express that intent by making place of performance a state where her liability for the debt would be recognized Why does it make sense to look at parties intent? Because she said shed pay back the money and she got the money, and intent seems consistent w/ fact that she knew shed be liable, its far (capacity- minors) Why is intent rule problematic? Because it negates the idea of incapacityanyone can show intent to be bound, even if they have capacity/incapacity

LINN V. EMPLOYERS REINSURANCE CORP. Tries to figure out where place of contracting is Statute of frauds issue b/c oral contract made by phone PA P place of business here P has made insurance payments from 19261953 (course of conduct) K not barred from SoF here- so P would win, D would be liable NY P and D negotiate for insurance in 1926

In NY- barred by SoF b/c not performed within a year

Question islaw of place of contracting, or the place of performance o Here we should look at the law of the place of the contracting b/c it concerns the validity How do they figure out where a contract is made by phone? o Place of acceptance Court determines leave up to jury Jury entered verdict for P, so place of contracting was not in NY What is difficult about determining where the acceptance is? P. 49 o Scenario 1- Ehmann accepts? o Scenario 2P. 50 Exercise o Section 377 for torts: Unintentional tort- law of the place of the wrong, where the last act necessary o What is the last act necessary? Where she ate it (Canada)? Where the staph infection was created (Alaska)? Where food wasnt sufficiently heated (Canada)? Where they ate the food? Where medical intervention would have saved her (Copenhagen)? o Whose law would determine whether negligence was a necessary part of the cause of action or whether strict liability would apply? Law of the place of the wrongdetermines strict liability or negligence o Whose law applies to determine whether Smiths refusal of.. P. 36 duty of privilege to act- Section 382; if contributory neg doesnt apply, section 385 then law of the place of the wrong?

p. 51-78 (domicile and marriage) Marriage- place of marriage, domicile during marriage, and for wills- place of the making of the will, place of death

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SEPTEMBER 8 Vested rights/Territorial Approach / \ act person territorial territorial (contracts, torts) (domicile is important) (marriage, divorce, inheritance) Notion behind vested rights/territorial approach- requires that every occurrence have a unique location, which is the place where the rights vest Contracts has similar approach as torts Torts o Unintentionallast act necessary Contracts o Validity/construction of contractplace of acceptance (similar to last act necessary in torts) Can be difficult to figure out o Performance and breach[considering where it was correctly performed, look to] place of performance o Poole: concerning womans capacity to contract rd o Court came up w/ 3 approach for contractinglook to intent of the parties (wasnt just place or acceptance or place of performance) Contracting o Intent lex validatis (idea of picking the law that will uphold the contract if possible) Linncourse of contract over 27 years o Court said we cant exactly figure out where the acceptance was o So court said jury found for Ps so they found acceptance occurred in PA (even though no evidence for that) o Policy: multiple ways in which upholding this K made sense: Is it really about upholding a K that took 30 years From point of view of the states: NY of statute of frauds for K not done within 1 yearNY policy in a way gets uphold too If we said no contract, neither states interests would have been advanced, but here 1 states does Domicile for choice of law o Family law Validity of marriage Divorce Parent-child statute (whether child is legitimate or not) Intestacy (usually w/o a will) o Why suddenly use domicile rather than where last important act occurred? White case 1) What is the test for domicile? Domicile is a residence acquired as a final abode. To constitu te it there must be 1) residence, actual or inchoate; 2) the nonexistence of any intention to make a domicile elsewhere [AKA 1) physical presence 2) intent 2) What result if Mr. White had died before reaching PA house? (what if you dont have physical presence and/or intent)

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His domicile would be PA, because he had intent to remain there and he already sold his house in WV (If distributed under PA law, wife receives half of his estate) (which is why answer of intent is more important Even when the point of destination is not reach, domicile may shift in itinere, if the abandonment of the old domicile and the setting out for the new are plainly shown p. 54 3) Why domicile as criteria, instead of place of death? Domicile is static and more fixed; You could be traveling and that place would have no connection; youve established everything in your domicile, the state where death occurred wouldnt have much interest Rodriguez-Diaz case 1) What is the conundrum faced by the court? Whether hell be considered to be age of majority of notbut his domicile is in NY; even though his parents are in PR and hes not They need to figure out if hes a minor depending on where his domicile is, but they also need to figure out where his domicile is to determine whether he is a minor p. 60 the fact is, there is no purely logical way out of the dilemma 2) Usually, a federal court sitting in diversity must apply the forums choice of law rules. Why not here? o Federal court sitting in diversity must apply the forums choice of law rules- black letter law o BUT the court doesnt do that here! (if they did they would have applied Puerto Rico law) o Why doesnt the court apply PR law and usually procedure for figuring out choice of law for federal courts? As we see it, resolution of the issue before is does not and should not turn solely upon a conflicts of laws analysis. Although federal courts have to apply the choice of law rules of the forum to determine the substantive law in diversity cases, the determination of litigants state citizenship for purposes of section 1332(a)(1) is controlled by federal common law, not by the law of any state. The issue of substantive law applies in a diversity case is surely a different problem from that of whether a litigan should have access to federal court, and it does not conduct to clarity of analysis to suppose the the same answers will suffice for difference questions o Federal GDiversity Jurisdiction Must apply forums Choice of law rule (Erie) For a state law case o What is the distinction the court is making here? State v. federal Court says in general for diversity case it will be a state law matter But court here says this is a matter of federal law Whether theres diversity jurisdiction under federal diversity state is a federal law question and its NOT about state law o Flynn thinks dissent got it right: o P. 63 that majority directs a district court sitting in Puerto Rico and adjudicating a case controlled by Puerto Rico law, concerning an incident occurring in Puerto Rico, and involving an individual who is unemancipated and still a minor under PR law, to apply NY law to determine that the youth is no longer a minor and thus able to invoke diversity jurisdiction in PR o Part of what this court is allowing is that kind of forum shopping that we want to avoid

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o

10

Court is essentially avoiding the purpose of Erie by allowing him to pick his court on his own

IN RE MAYS ESTATE H and W married for 30+ years, she dies Decedents husband suing b/c he wants to be administrator of wifes estate One of kids also wants to be administrator and says husband shouldnt be Issue: NY Didnt allow marriage (b/c uncle and neice) Policy: why prohibit these marriages? Possibility of birth defects, moral reasons Lived for 32 years in NY as H and W Property located in NY Domicile RI Marriage valid

Marriage celebrated

General rule w/ respect to marriage o Black letter rule: 121: Law Governing Validity of Marriage: a marriage is valid everywhere if the requirements of the marriage law of the state where the contract of marriage takes place are complied with Lex celebrationis Valid in place of celebration is valid everywhere o 2 exceptions (p. 71): Positive lawstatutory law Idea is if a state passes statute saying they wont pass a certain kind of marriage, then its an exception (or if they havent there may still be a public policy exception) Public policy/morality/abhorrenceviolates public policy of the state NY Court upholds the marriage (of 2 people who left NY to avoid prohibition on their marriage) Was there any statutory law on point in NY? Yesmarriages between nieces and uncles prohibited Court is not following the positive law exception Court could follow public policy exception but doesnt o P. 71 Such marriages have been condemned by public opinion for centuries and are voice, by statute in 47 states So why does court uphold the marriage anyway? o Maybe sticking w/ general rule b/c RI is in some ways protecting religious expression; could be the fact that they lived as H and W for 32 years and had 6 kids, o As Section 5 of NY law does not expressly declare void a marriage of its domiciliaries solemnized in a foreign State where such marriage is valid, the statutes scope should not be extended by judicial constrictions. Indeed, had the Legislature been so disposed it could have declared by appropriate enactment that marriaged contract in another Statewhich if entered into here would be voidshall have no force in this State. o Ddoesnt actually say its void, just said its not allowed; says Legislature instead should have expressly stated it in statute that NY doesnt give recognition to marriages in other state How does court get around the positive law exception?

LANHAM V. LANHAM Woman married and gets divorced, then remarries 84 yr old man. Married for 2 years and then he dies.

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H and W had to go to Michigan to get married 2 yrs later W makes application in home state to marry the guy o How could it hurt herit shows she knows she violated the decree, she knew marriage was invalid o How it helps herCL marriages, solidifies their intent to be married Issue: Whether their marriage is recognized WISCONSIN One year prohibition not valid Reside in WI MICHIGAN Marriage is valid where celebrated

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Assume you want to argue they werent legally married, how would you argue marriage wasnt valid in Michigan? 1) forum shoppingshe wasnt from there 2) capacitywoman doesnt have capacity to enter into marriage contract, since she is still married

p. 78-95 SEPTEMBER 13
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1) Whats the general R1 rule for recognition of marriage? a. A marriage is valid everywhere if the requirements of the marriage law of the state where the contract of marriage takes place are complied with (if valid in the place of celebration, then its valid everywhere)called lex celebrationis 2) What happens when the marriage is void in the law of the domicile? a. Then it wont be recognized, will be invalid b. See Section 132invalid everywhere in the following cases 1) polygamous marriage, (b) incestuous marriage between persons so closely related that their marriage is constrary to a strong public policy of the domicile 3) marriage between persons of different races where such marriages are at the domicile regarded as odious [now unconstitutional] 4) marriage of a domiciliary which a statute at the domicile makes void even though celebrated in another state c. Now the 2 main exceptions for domicile are: 1) statutory 2) against the strong public policy of the state of the domicile 3) In J.B., both parties were domiciled in MA when married, then later moved to TX. Is the court applying the law of the domicile (#2) or is it a different rationale? a. Court says they have a statutory exception and strong public policy against it, but court says hands off entirely b/c they dont even have SMJ so we cant even consider this case b/c statute took jurisdiction away from us IN RE MARRIAGE OF J.B. AND H.B. State intervened in the action (which is highly unusual) How can the state get involved and say they have an interest in this? o State is a third party to a marriage contract o Idea that the government has an interest in your marriage and regulating it TX has 2 statements of its argument: o State Constitutional amendmentmini DOMA (federal defense of marriage act, enacted in 1996; has 2 parts: 1) for federal purposes, marriage is defined as between a man and woman 2) no state has to recognize another states s ame sex marriage) o Statute that is a part of the family code P saidthis is divorce, its not actually giving legal effect to the marriage But Court says noif you grant a divorce, then you are saying this was a legal marriage

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12

P also argues comityidea that as a matter of public policy court should respect laws of another state; o Comityprinciple under which the courts of 1 state give effect to the laws of another state or extend immunity to a sister sovereign not as a rule of law, but rather out of deference or respect [state is not adopting rule as its own] o Court says no- why give deference to another state if we have strong public policy against it Book points out that case result is a bit ironicyou should want to enforce divorce if you dont agree with same-sex marriage in the first place Couple cant go back to MA for divorce unless one of them is domiciled there NY and MD enforce divorces of same-sex marriages from other states NY and MD doesnt have statute explicitly prohibited enforcement of same -sex marriage

PROPERTY Df BURR V. BECKLER Result seems really incorrect ILLINOIS Forum Land located here Wife domiciled here IL would uphold the note Court says this is about a contract, not about the land itself (so should go back to the law of K) o If about performance/obligation of K= place of delivery= FL Makes a distinction between: o Title of property (transfer, sale of land)= state where the land is located o Mortage for a note, loan borrowing money and using land as collateral= Court says this is incidental to title of land and therefore it is a contract matter o What might be the rational for the distinction? o Title to land rule= state has an interest in the land o So why change to K law? Wont attach till they make a K, and FLORIDA Law would not uphold the note b/c of doctrine of coverture FL was where she executed the note, and mailed to her husband from FL

THOMSON V. KYLE Df FLORIDA Forum Land located here Allows married woman to contract if her husband is a party ALABAMA Mortgage payable here Married women have no capacity to contract

FL Courtsays land is an immovable thing. It is almost universally held o If its about land= law where the land is located, including contracts regarding the land INTEREST ON THE MORTGAGE-- $300 in interest on the mortgage o In ALthat interest rate is usury What law does court apply to the interest rate?

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13

o Law of FL to mortgage o But were applying the law of AL to the interest Does this make sense? o Courts rationale- interest obligation is a personal one, doesnt run with the land; idea is that its a K and the place of the contracting is AL o How would you argue that it should be FL law? For personal property, rules are diff than they are for land

p. 95-117 SEPTEMBER 15
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PERSONAL PROPERTY/CHATTELS 1) What is the general R1 rule for chattel? Determined by the law of the state where the chattel is at the time of conveyance (the time you convey the property to someone else) 2) For marriage and inheritance, R1 rule is different? What is it? Why is it different? Law of the domicile of the husband at the time of the marriage. Its different because its more simple; easier concept to deal w/ marital rights or inheritance as a package 3) What conflicts rule does Blackwell court use to determine an interest in property? They use Missouri law b/c it was conveyed in Missouri 4) Under MO law, who owns the property? Under 290, theres another way to determine owner of property, what is it? The Luries owned the property. Under 290, the interest in property is determined by the law of the domicile of the parties when the movables are acquired.

BLACKWELL V. LURIE Amount of money involved is only about $1000 Fighting about a sketch b/c need to determine if its part of the bankruptcy debt or excluded It matters which law applies b/c in MO tenants in entirety property cant be taken b/c joint property, but if New Mexico law then it can be taken Court uses conflicts of law rule to determine that MO law applies: general rule is the time and manner of acquisition rule o P. 98: an interest in property takes its character at the time and in the matter of its acquisition (pretty much same rule as R1) o Some states use time and place of acquisition rule but some states also use domicile rule Argument made in Blackwell was to look at domicile instead of T&PA rule. Why else might court find domicile isnt as convincing a basis to use here? o Domicile is more important for divorce, marriage, inheritance and this case doesnt involve this o Can also make public policy argument- this is a concept of property ownership that doesnt exist in this state anymore, and therefore T&PA rule shouldnt apply Court says public public doesnt warrant declining of MO law here; exception may only be involved in extremely limited circumstances Whats the danger of having a public policy exception? o Gives the court a lot of discretion MORSON V. SECOND NATIONAL BANK OF BOSTON Concerns intangible property

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14

Old guy gives relative some stock He give her an envelope w/ name on it and tells her its her; have notary come in; but they do it in Italy but stocks were purchased in MA Court didnt find a sufficient delivery Facts do show intent to convey the stock Judge applied Italian law b/c it was the time and place of acquisition or place of conveyance However, stock is an intangible thing Court makes distinction as to why stock intangible property Court: look at stock as certificate or tangible property? Court says doesnt make sense to tie delivery of shares over when in Italy b/c shares were from MA and MA corporation What is problematic about having 2 different rules (place of acquisition for the certificates of stock and place of incorporation for the shares in the company)? o B/c theyre kind of the same, certificate has no value w/o the shares in the company o American Law Institute decided in S 53 Comment DUniform Stock Transfer Act o Say we have uniform laws for incorporation, so if youre in a state that applies these laws then we assume thats what applies even if the piece of paper winds up being somewhere else Idea is that stock is something that reflects internal working of a company Idea of upholding the intent of the parties o Rule of validation- if you can validate a contract or a gift, etc. you should

MCDERMOTT INC. V. LEWIS Come up w/ sketch of the various laws DELAWARE Forum Delawares COL principles require that laws of the jurisdiction of incorporation (Panama) govern the dispute involving voting rights 10% of voting rights in parent CANNOT control subsidiary (all US states) Subsidiary incorporated here Buyout by the parent Ultimately Panama law applies Rationale: should apply Panama law b/c choice of law where place is incorporated Internal Affairs Doctrine o Place of incorporate governs CoL for internal corporate affairs o Lex incorporationis- predictability What is problem/drawback of following Internal Affairs Doctrine? Youre giving corporation big advantage in choose where it wants to have its law LOUISIANA Executive office here Principal place of business for both companies PANAMA Parent company here and Incorporated in Panama Under limited circumstances the laws of Panama permits a subsidiary to vote the shares of its parent (10%voting rights in parent CAN control subsidiary)

IRVING TRUST CO. V. MARYLAND CASUALTY CO. NY MO, FL, NJ, DE

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Forum (diversity) Most real property and chattel in NY (NY law appliescant transfer)

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Bankruptcy case There is a determination that most of the things owned of this company will go to these 4 creditors Why arent you allowed to decide to dole things out to 4 other companies before your bankruptcy? b/c creditors would never get any of their money back

117-131 SEPTEMBER 20 11.

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**MISSED** (LINDSAYS NOTES)

Whats the restatement COL rule for corporations regarding an internal matter?

-Where the corporation is incorporateds law applies (only governs internal affairs though, NOT affairs with third parties) -Internal Affairs Doctrine: adopted by R1 and R2, idea is that when it concerns the internal affairs of a corporation (voting rights, share splits, things relating to stock itself, rights and duties of trustees/directors), all governed by law of where incorporated. -3 parties: tort (governed by usual R1 rules-i.e. where wrong occurred, etc)
rd

2. 2. In Haumschild, assum e accident is characterized as a tort: what states law applies and why? -If the accident is characterized as a tort, it would be the place of the wrong, last act necessary and therefore California. 3. 3. Haumschild does not apply the COL rule for torts: What is the courts holding and rationale? -Holding is that Wisconsin law applies: court says that question of capacity to sue husband is a family law matter, not tort law and therefore the law of the domicile applies. Not so much about the accident. Underlying policy rationale is to keep family harmony (and prohibit someone in the family from suing someone else). Domicile is then an issue (and domiciled in Wisconsin). 4. Renvoi is discussed on p 119: what is it? - Permitting a court of the forum state to apply the conflict of law principle of a foreign state- rejected in many states because it would be circular. Whenever you see a forum applying COL rules of another state it is a renvoi. -Procedural: includes COL rules: Forum -Jurisdictions whole law is the Choice of Law rules AND Internal Law of another jurisdiction. -Restatement 1 disfavors renvoi. 5. Appellant urges a renvoi in Damato, find sentence where he does it: -Pg. 124, 3 paragraph, then court explains problem of renvoi on pg. 125, 2 paragraph. 6. Find the Renvoi discussed in Dater. -pg. 126, last full paragraph. Assuming
rd nd

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*These cases may seem like escape devices but it isnt necessarily a bad thing, may be more just Escape devices:" -Characterization of something (tort v. k, different types of law, etc.) -First Restatement doesnt really talk about characterization, very vulnerable point in R1 analysis/criticism -capacity to sue is a major flag for characterization -Issue Splitting/Dpecage Haumschild v. Continental Casualty Co. Wisconsin 1959 Mrs. H sued her husband for personal injuries she suffered in an automobile accident in California as a result of his negligence. Issue is in inter-spousal liability for tort growing out of a car accident, which law controls: that of the state of forum the place of wrong, or the state of domicile?

California: site of accident -cant sue husband in tort Wisconsin: forum -lower ct. dismissed case under Californias law prohibiting a wife from suing husband in tort -domiciled here -wife may sue husband in tort Referenced Buckeye v Buckeye case: Wisc. Was the state of the domicile and forum, while Illinois was place of the wrong. Held that the law applies is where the tort was committed and further that interspousal immunity from tort liability is governed by the law of the place of injury. -However, court says should be the law of the domicile is the one that should be applied in determining any issue of incapacity to sue based on family relationship (because incapacity to sue presents a question of family law rather than tort law) Renvoi doctrine: French, meaning turn around and come back to you. Permitting a court of the forum state to apply the conflict of law principle of a foreign state- rejected in many states because it would be circular in this case the Wisconsin court would look to the law of CA to see whether a wife can sue husband in tort, (CA says no) BUT CA has a conflicts law that says the law of the domicile determines such question, which would be Wisc and then Wisc has statute that says law of injury applies (so back to CA, and she cant sue.) circular. Judgment REVERSED. (so WI. Should apply) Issue Splitting: Dpecage. note 4, p. 121: Court appeared to applying CA law on tort issues though it applied WI law rejecting interspousal immunity. State that really has an interest in maintaining family interest is WI, and state with interest in safe driving is CA. In Re Estate of Damato: -Lower court awarded the balance of two out of state banks to decedents so n Phillip. -Decedent died as a resident of NJ. Florida: -Location of the banks

CONFLICTS OF LAW
-Florida has rule of In Re Totten NJ: Forum Totten trust: Person whom trust is named for cant access money until trust maker dies. Some courts hold as invalid. Court says that the law is well settled that the creation of an inter vivos trust in money or securities, as distinguished from a testamentary trust, is governed by the law of the situs (location) of the money or securities. Determined by where the transaction takes place.

17

Appellant argues that in applying Florida substantive law, instead of Florida conflict of laws, the trial judge errored. Specifically, under Florida conflicts law, the doctrine of mobila sequuntur personam would be applied: where the person is; so the app. seeks to invoke the doctrine of renvoi to defeat the claim. Court goes with FLORIDA LAW. Doesnt need to look toward Florida conflicts law because it could be super circular: if Florida conflicts rule applied it would refer the matter back to NJ, applying its full body of law and conflicts law would refer to the law of Florida because of the holdings in the other cases. Essentially states that is preferring substantive law (except in cases referring to land title or the validity of divorce) University of Chicago v. Dater Loan for $75,000 on a piece of property at issue. Chicago, Illinois: -property location -where the promissory notes were drawn up -notes payable in Chicago -deed placed on record -check cashed here -property sold under foreclosure here -no coverture law (so personal liability for the woman) Michigan: forum -parties signed and live in Benton Harbor, Michigan at the Benton Harbor State Bank -suit filed (before the foreclosure sale was completed) -Michigan has law of coverture (no personal liability on the note) -Issue over whether the construction/performance of the K (law applied place of performance, arguably Illinois), or the capacity to K -Court references Burr v. Becker-pg. 90, Illinois: apply law where K is performed (could be either Michigan or Illinois in this case). But depends on whether or not you are looking at it as an issue of construction/performance of the K or capacity. -Court says governed by Michigan law. Why: in law of Illinois, based on conflicts law, the law is governed by Michigan. property went into foreclosure after husbands death. Dissent: -Performance of a K (or last act necessary) -Majority said last act necessary was signing the K, but dissent said last act necessary was receiving good title on the property (Illinois)

CONFLICTS OF LAW
-Not looking at issue of capacity. Assignment for Thursday: -pg. 132-146

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SEPTEMBER 22 1) General rule: Forum applies its CoL rules (procedural) even when applying substantive law of another state. Renvoi is an exception. What is a renvoi? Whenever you see a forum applying COL rules of another state it is a renvoi. Permitting a court of the forum state to apply the CoL principle of a foreign state 2) Why would the forum decide to apply another states CoL rules? Fairness b/c if cause of action precluded in one state, can permit in another state. To categorize for fairnesswhen the court doesnt like the answer it will get but applying its own rules, it will use other CoL rules 3) Renvoi may, but does not necessarily, result in a possible endless circle: Explain. If one state applies their CoL rules then it goes back to other state, then back to other state keeps going back and forth between the states Forum can accept a renvoi Renvoi- Forum court is making substantive choice of what outcome it wants R1 disfavored it, but not prohibit it SAMPSON V. CHANNELL MA Forum (diversity) Most real property and chattel in NY (NY law appliescant transfer) Has burden of proof to show contributory neg as an affirmative defense Maine Car accident Burden of proof on P to prove no contrib. neg

ND

Which rule to apply? Court sets out its arguments in number of steps Court says BoP is substantive for these purposes, and procedural for these purposes Why would it depend? P. 134: inquiry must first be directed to whether a fed court It would be an over simplification to say that the case turns on whether but BoP is what it depends on If BoP is procedural apply forum rule for burden of proof (federal court rule) If BoP is substantive then apply state law How would you argue BoP is procedural? How would you argue BoP is subtantive? When it affects the outcome of the case, when its essential to the cause of action BoP proceduralwhen its more about the mechanics the matter has been made to turn upon the purpose at hand to be served by the classificationwhether S or P is based on purpose to be served for the classification Court says were a fed court sitting in diversity, reason for determining if S is whether it would affect the outcome o For Erie purposes, you want to have uniformity in outcome between state and federal court in the same state nd 2 step: for fed purposes, BoP is subtantive o thus for the case has been discussed p. 136 o so state law applies, but which state law regarding BoP? o 3 rules were dealing w/ in this case: o Fed rule regarding BoP (if BoP=procedural)court rejects this

CONFLICTS OF LAW
o If not fed, which state? MA (F) or Maine (accident) What is the MA rule? BoP is procedural

19

o Fed court defines BoP as substantive b/c its outcome determinative; if outcome determinative, that encourages forum shopping between fed district court and state district court next door Fed court says BoP is underlying substantive law state in which court is sitting: MA procedural B/c substantive, we apply state law State law says its procedural, so law of forum applies

OLEARY V. ILLINOIS TERMINAL RAILROAD About substance v. procedure

MO Forum BoP for contributory negligence is on D (affirmative defense)

Illinois Accident BoP for contributory neg is on P viewed as an essential element of Ps cause of action

P wants forum law forum applies own procedure (mechanics procedural) P. 139 the distinction between substantive law and procedural law is that S law relates to rights and duties which give rise to a cause of action, while P law is the machinery for carrying on the suit. We think that the Illinois requirement is substantive, just as much BoP P: essential element of Ps cause of action; affects outcome/right to recover

p. 142-156 SEPTEMBER 27 Dksd In the famous case, Grant v. McAuliffe (See Case Squibs section), a California court confronted the question whether or not the right to recover for an automobile tort survived the death of the tortfeasor. The accident occurred in Arizona, but the parties to the accident and the suit were from California, the forum. The California court "classified" the issue of survivability as involving what claims could be brought against the decedent's estate, hence a procedural issue, governed by forum law, which allowed for survival. In fact, the issue of survivability of tort actions is generally viewed as substantive; does the injured party have a "right" to sue the tortfeasor's estate as well as the tortfeasor? That "right," which is separate and distinct from the right to recover from the tortfeasor, was unknown at common law, and is conferred only by statute. It would have been just as sensible to treat the Arizona rule (which forbade survival) as a substantive law rule of the place of the tort, dictating the rights of the parties. However, the California forum, given its interest in applying its law, sought to "escape" Arizona's rule.
TH

1) As Grant acknowledges, many courts hold survival of a c/a is substantive: what do you think their rationale is?

CONFLICTS OF LAW
2) Grant says these cases confuse survival of a c/a with wrongful death- what distinction does Grant make? 3) Another CA, case, Cort, holds survival statutes. 4) Court characterizes it based on purpose Case is famous b/c intuitive view of a survival statute being substantive, lots of courts hold it is 2 more escape valves- statute of limitations and public policy

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DUKE V. HOUSON At trial jury found D was liable Did statute of limitations apply, and which states laws apply? Gonorrhea case 3 Statute of limitations periods were dealing with: o P filed within just under 4 years of having sex files in Wyoming, which has 4 years SOL Other states: NY 3 years, DC: 3 years, PA: 2 years, VA: 2 years Need to figure out when SOL started. When she was told infected? When she discovered infected? Or when she knew she was severely injured? Under R1, are SOL substantive or procedural? Rationale? o Procedural603 says even if if youre applying forums law its procedural o Not about merits/substance; not defending stale claims; arbitrary 605 (p. 146) is an exception to the general rule. What does 605 provide and why? o b/c the rule clears up any substantive procedural conflict problem and also eliminates the possibility of the plaintiff shopping for a favorable forum in which to revive a dead claim no o p. 155 note 1: SOL will presumed to be procedural unless they are contained in the same statute that creates the substantive right if the SOL is containd within the statutory creation of the right, its substantive How SOL work: o General SoL: apply to all sections in the code and for the subject (these are procedural under 603) o If the SOL is containd within the statutory creation of the right, its substantive: special statute of limitations - ex: apply to a particular type of tort Included in creation of c/a WY statute doesnt apply b/c no sexual contact there Borrowing statute- p. 149- WY will borrow or apply another states cause of action o Apply SOL where cause of action arose Where did cause of action arise? Court says NY b/c its where relationship started and ended Dissent- says problem w/ NY is theres no way to tell if thats really where she contracted the disease Under R1, SOL are generally considered procedural 156-164, 177-193 SEPTEMBER 29 (**MISSED CLASS- BRITTANYS NOTES) 1) What is the R1 position on public policy? a. No action can be maintained upon a CoA created in another state the enforcement of which is contrary to the strong public policy of the forum 2) R1 distinguishes between applying the public policy doctrine to CoA versus defenses. What is the distinction + the rationale for it? a. Asking for judgment vs. defense to a valid claim b. Rationale =
TH

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3) In Marchlik, does the court conclude direct action states are procedural or substantive? Rationale? a. Substantive, unless there is compelling state public policy i. Because it creates a positive action b. Rationale = doesnt just like the law.its too confusing and too many problems with direct actions arise c. Direct action statute: claimant cannot sue Ds insurance company directly and include them in the suit 4) Why does Marchlik conclude that direct action statutes violate its public policy a. They dont like the law of Wisconsin Holzer v. Deutsche Reichsbahn-Gesellschaft Sues company he used to work for Was fired and then placed in a concentration camp When he was fired, he was technically entitled to compensation (up to 50,000) if fired for things other than his failure to work (fired because he was Jewish) Public policy exception must be very strongly held in the state in order for them to not rule in favor of the other states law Chapter 3 Modern Approaches to Choice of Law Auten and Haag o Center of gravity or grouping approach to modern CoL Center of gravity approach o A version of it is a foundation for R2 Significant relationship test o The one that R2 uses is more sophisticated o Adding up contacts Babcock + Tooker o NY court tries to fix issues that arose with the center of gravity approach o Called = Government interest analysis o Why does a particular forum want to apply its law in a certain case Why does each jurisdiction have an interest in having its law applied Neumeier, Shultz, Padula adding complexities o Current cases Haag v. Barnes pg 191 NY o Forum o Allows her to sue o P and childs domicile o Pregnancy IL o Cant sue again o D domicile o Child born o Agreement signed Adds up a bunch of contacts, some that are weak and comes to a conclusion Court uses governmental interest analysis Babcock v. Jackson Pg 182 Distinction between babcock and tooker o Tooker = Relationship between guest and driver formed in the state where the accident happened MI at college

CONFLICTS OF LAW
o Babcock = Everything is centered in NY NY o No guest statute, can sue the driver if you are a passanger o All parties reside o Car garaged and insured Ontario o Guest statute o Accident What are Ontarios interests in denying recovery o All other contacts are in NY Its only happenstance that the accident occurred in Ontario To find go interest look at = underlying policy of the law o Prevent fraud/collusion o Want family/friends harmony Tooker MI o Center of relationship between P and D o Accident in MI o Met as college students in MI Guest in MI cannot sue Guest in Ny can sue Driver is from NY 1) cts rationale for NNY guest able to sue but not MI guest? 2) is this fair? o Discussion pg 185 o How would you critique the argument because its part of our federal system
RD

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OCTOBER 3 (pre class): p. 191, Padula v. Lilarn Properties Corp.: Conduct-regulating rules govern conduct to prevent injuries from occurring. If conflicting conduct-regulating laws are at issue, the law of the jurisdiction where the tort occurred will generally apply b/c that jurisdiction has the greatest interest in regulating behavior within its borders. Loss allocting rules on the other hand, are those which prohibit, assign, or limit liability after the tort occurs, such as charitable immunity statutes, wrongful death statutes, vicarious liability statutes, and contribution rules. Where the conflicting rules at issue are loss allocating and the parties to the lawsuit share a common domicile, the loss allocation rule of the common domicile will apply No class on 10/5 or 11/17!!! NYs first attempt to break away from R1 o Haag & Auten: Move away from territoriality and shifted to grouping of contract/center of gravity Early version of R2 Most significant relationship but its more simplistic Problems in these 2 cases (which were guest statute cases): came up w/ contacts and Court decided which state had primary center of gravity, but there was no explanation as to why those contacts were insignificant this led to a weakness o Babcock and Tooker Moved away from that approach Early version of the interests analysis Court analysis policies underlying whatever issues are in conflict

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NY is first state that started to move away from R1: made a number of approaches that then started to get used later 3 major choice of law theories nowadays: o Curries Interest Analysis- aka governmental interest analysis o Better rule approach (or choice influencing approach) o R2: Most significant relationship test Governmental Interest Analysis o First, look at policies underlying the conflicting rules o Next, look at the contacts that implicate the policies o **this approach is a helpful way at looking at conflicts where there is a false conflict

BABCOCK V. JACKSON NY (F) Has guest statute- would permit recovery P domicile D domicile Car registered here Trip began ONTARIO No recovery/guest statute Accident occurred here

Court said lets look at policy on what guest statute is in Ontario for denying recovery This case is called a false conflict: o Conflict of the substantive law, but one state has no interest in applying its policy o It is a false conflict b/c even though there are 2 diff laws at issue here, the reality is Ontario doesnt really have any interest. It is the place where the accident occurred, but b/c all the contacts except for accident happened in NY, it really makes sense for NY law to apply Tooker: same except Michigan replaced Ontario o Court concluded that NY has interest in allowing recovery for NY residents/domiciliaries (which is same holding in Babcock and Tooker) o Whats different though is that person in car was from Michigan, so NY resident recovers, but Michigan domiciliary doesnt o MI: Michigan resident, accident, MI doesnt allow recovery o Court say it makes sense to grant recovery to NY resident b/c NY permits recovery (NY was also the forum) but deny it to the other passenger from Michigan b/c MI doesnt permit recovery o What is courts rationale for NY guest to sue but not Michigan guest? P. 194 bottom- NY has strong interest in allowing its own residents to recover but doesnt have any interest for Michigan resident NYs grave concern in affording recovery On the other hand, Michigan has no interest in whether a NY plaintiff is denied recovery against a NY defendant where the car is insured here o Middle of p. 185 were not worried about the recovery for one and not the other it suffices to note that any anomaly resulting from the application of Michigan law to bar an action brought by Miss Silk is the implicit consequence of a federal system which at a time when we have truly become one nation, permits a citizen of one State to recover for injuries sustained in an auto accident and denies a citizen of another State the right to recoverThe anomaly does not arise from any choice-of-law rule Critique this idea: yea its a result of federalism, but if they chose a diff choice of law principle result would prob have come out different

NEUMEIER V. KUEHNER

CONFLICTS OF LAW
NY (F) Has guest statute- would permit recovery Car insured here D domicile ONTARIO No recovery/guest statute P domiciled Accident occurred here Trip begins here

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In Babcock, Court says everyone from NY so Ontario had no interest. But here Ontario has an interest, and so does NY Court comes up w/ new set of rules (particular to NY): P. 186 Although our court originally considered one purpose, and perhaps the only purpose, of the statute was to protect owners and drivers against ungrateful guests (changed policy that they originally stated in Babcock)- think they got it wrong first time around, and theres a diff state policy at issue P. 188: Court creates 3 diff rules for torts o 1) When the P, D, and car are all in the same state, that states law should apply (Babcock) o 2) Whens the drivers conduct occurred in the state of his domicile, and that state doesnt make him liable, he should not be liable under the law of the victims domicile. Conversely, when guest is injured in the state of his domicile and the domicile would permit recovery then were going to permit recovery o 3) [the un-provided for case] In other situations when passenger and driver are domiciled in different states, the rule is necessarily less categorical. In that situation, apply R1 (law of the state where the accident occurred) Passenger: domicile Driver: domicile Accident: domicile Accident: domicile Domicile: prohibits recovery Domicile: permits recovery EXCEPTION: apply law where accident occurred (R1) unless there is sufficient reason to displace that Neumeier us the un-provided for case Neumeier Rules are NYs CoL rules for torts

SCHULTZ V. BOY SCOUTS OF AMERICA Franciscan monks ran boy scout camp, 2 boys sexually assaulted a 1 killed himself Parents are suing both the monks and the boy scouts, both of which are charities NY (F) No immunity/recovery NJ Charitable immunity- if they are charities, they cant be sued Accident occurred here TX After acquired domicile here for the Boy Scouts of American OH Charitable immunity would extend Where Franciscan Bros (the other D) is domiciled

Boy Scout Camp here

Molestation occurred

Ps domicile Abuse continued Suicide occurred here Original domicile for the Boy Scouts of America

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Under Neimeier rules and looking at Ohio, how would this apply to Fransiscan Bros: their domicile would protect them o Could make argument that Franciscan Bros shouldnt have Ohio law applied to them/Ohio law weak b/c its not where accident occurred, not where victim was domiciled, and not where particular camp was Court lets both Ds off the hook and theres no suit for child abuse Court concludes NJ is ultimate home for Boy Scouts and applies charitable immunity nd P. 190 middle of 2 paragraph For the same reasons stated in our analysis application of law in NJ in Ps action would further NJ has interest in promoting the continuation and expansion of Ds charitable activities in that State. o Based on this policy, court says even though were in NY and it would allow recovery, were going to apply NJ law to Boy Scouts too How would you critique this if you represented the parents in this case? Why continue something thats harming children its not about the charitable organization, should have an interest in preventing sexual abuse Public policy exception (think of this as your last argument): NY has no significant interest in applying its own law in this disputequestion that this State has a paramount interest in preventing and protecting against injurious misconduct within its borders o P. 191 there can be Dissent: NY does have an interestthis is an interest where we should applying the public policy exception Schultz falls under #3 of the Neumeier rules: normally youd apply law of place of the accident (NY or NJ) but majority says no reason to depart b/c has no interest, but dissent disagrees Under government interests analysis, some laws are about conduct and some are about regulating loss o Conduct Regulating Laws Rules of the road (ex: speed limit, no DUI); laws about regulating your conduct If its conduct regulating, then apply law of the place of the accident/tort o Loss Allocation Laws Losses that result from admittedly tortious conduct (ex: limitation on damages in wrongful death, immunity from suit, and vicarious liability) If its loss allocating, if there is a common domicile between the parties, then apply that law Difficulty in distinguishing between conduct regulating and loss allocating Currie: influential in R2, came up with governmental interests analysis o Wants people to be realistic/practical about conflicts o In article, comes up with suggestions for how to apply conflicts rules on p. 194 o P. 196- Curries final statement of analysis o 1) apply forum law 2) if someone says another law applies 3)

re-read 194-196 (need to know what curries final version/approach is, so take notes!): What are Curries changes from version 1 and 2?; 197-209 OCTOBER 13 Choice of Law Approaches: 1) [Governmental or Curries] Interest Analysis 2) Comparative Impairment -Tried to respond to weaknesses of interest analysis 3) Better Rule (Choice Influencing or Leflars) -Leflar came up with choice influencing approach 4) Most Significant Relationship/ R2
TH

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EXAM: ex: multistate car accident- assume all major approaches weve talked about apply, make arguments for all of them. o Have handle on major component of each are and how they differ st Currie was 1 person to move away from R1 What are the changes in Curries thinking from first version to second? o Currie was unhappy with R1 st o 1 version has much stronger tilt toward applying the forum law st 1 version is law of forum o Final version- governmental interest analysis as Currie sees it Start by looking at policies of both to see if each state has an interestDoes each state have an interest in applying its law to the facts of this case? Currie shifts analysis from R1 to looking at the states interests Instead of going to immediate applying forum law (like he says in first version) he says if both have an interest [apparent true conflict] take a nd sober 2 look; Will a more restrained view of a states policy interest avoid the conflict? Dont balance interest, just say if there is apply forum law If still a true conflict, apply F law TRUE CONFLICT Lilienthal Take a sober 2 look- then if still a conflict, apply forum law
nd

FALSE CONFLICT Tooker Babcock Underlying substantive law of each state conflicts, but 1 state has no interest in applying its law to facts of this particular case

UNPROVIDED-FOR CASES

No state has interest in applying its law to facts of this case apply forum law

LILENTHAL V. KAUFMAN OR (F) has spendthrift protection law for D- if youre declared a spendthrift (incompetent to spend money) and you have a trustor, and enter in a foolish deal, executor of trust says you dont have to pay b/c guy is protect D lives here Prior case- OR parties & transaction CA D would be liable here

P resides Deal entered into Note enforceable

Court applies interest analysis approach- p. 198 we must determine whether the laws of the states having a connection w/ the controversy are in conflict ****[will ask question on this!] P contends that the substantive issue p. 198 last paragraph o P wants to use R1 Court is not saying theyd never use R1 approach, but there is no need to decide that our previous statements that the law of the place of K governs were in error we doubt that law of place of the K should govern of the only connection of the state whose law would govern is that it was the place of the making o Theres a whole bunch of other connections the CA has Court says theres a bunch of conflict of laws principles that were going to apply here - p. rd 199 2 full paragraph: [Apply to CA] o Were looking at lex loci (R1)

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o

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And tentative draft of R2 if place of contracting and place of performan ce are in the same state, the local law of this state determines the validity of the K o And look at Rule of Validation principle If law of any jurisdiction having a substantial connection would uphold the K, apply that law upholding parties intent [apply intent of the parties to uphold the K where possible] Court here is doing more of interests analysis than public policy exception, but for public policy (court combines the 2 analyses) has to be deeply rooted public policy, so CA has to have deeply rooted public policy o Court goes through interests of each state o Oregons interests: Protect Oregon family Protect Oregon from supporting family on its welfare roles o the substance of these top of p. 201 o Californias interests: Making sure creditor is paid Wants to be state that will enforce K Court ends up applying Oregon law (forum law)
nd

TRUE CONFLICTS VS. APPARENT CONFLICTS (take a sober 2 BERNFRANT V. FOWLER CA (F) D dies in CA/domiciled here SoF: D would win

look)

NV Ps buy real property (apartments) here) Ps live here

D wants Ps to refinance so he can buy trailer park; D says that when he dies, whatever nd remaining $ they take out of 2 loan will disappear- hell put it in will. But D dies 2 years later and its not in will Statute of fraud issue Is there really a true conflict here? P. 202 The Legislature, however, is ordinarily concerned w/ enacting alws to govern purely local transactions, and it has not spelled out the extent to which the SOF is to apply to a contract having substantial contacts w/ another state.. o So might no be true conflict Look at all the contacts of NV and CA P. 203 In the present case, however, there is no finding as to where Grandrud was domiciled at the time the K was made we dont know where D was living at time he made K o But why dont we care where he was living? Read last paragraph on p. 203- were trying to figure out CAs interests CA interests: o Want to avoid fraud- SOF denying the K o Protect the reasonable expectations of the parties- rule of validation upholding the K Court ultimately concludes to apply Nevada law theres no conflict between CA and NV, so can give effect to common policy of both states (to enforce valid contracts)

UNPROVIDED-FOR CASES HURTADO V. SUPERIOR

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1) Set out contacts w/ each state a. CA: unlimited damages, accident Ds reside b. Mexico- damage limitation, Ps reside 2) Why is this an unprovided-for case- neither state has real interest in applying its law a. Mexico doesnt have interest b/c law is to protect D, and that and CA doesnt have interest b/c law is for Ps and Ps are in Mexico Court comes up w/ another reason to apply CA law- resolves by finding another CA interest o Accident happened in CA o P. 207 last paragraph- It is manifest CA has interest b/c it allows unlimited damages in part to deter wrongful conduct P. 208 note 1 For tues- [skip 209-215] p. 215-231 NOVEMBER 8
TH

PHAU V. TRENT ALUMINUM CO. Make up class: 11/18 12-2:30 PM Guest statute case NJ (F) D Permits liability CT P Permits liabilitybut lex loci delicitI IA Seat of relationship Trip begins Accident occurs No liability Last paragraph p. 266Connecticut adheres to lex loci deliciti 1) IA is the seat of the relationship and place of the accident. Why does Court conclude IA has no interest? o Court inspected the purposes behind Iowa guest statute and determined that none of them was applicable to the facts of the case o Court says theres kind of a false conflict o IA doesnt really have an interest in having its law applied b/c nobody is domiciled in IA, and theres no liability In govt interest askwhats the purpose of the rule? If purpose of no liability is to protect insurer, and theres no insurer here its not helping anyone 2) D arges for a renvoiexplain what that is in the context of this case o Court applies the whole law of a statelooks to other states internal law (substantive law) and its choice-of-law rule o p. 266It would appear that CT substantive law allows guest to recover would give it significant interest. D argues that if we apply CT substantive law, we should its choice of law rule as wellso this would then point to IA law 3) Court holds that renvoi isnt appropriate for governmental interest analysis: Why? o **See below Court says it wont apply IA law b/c it doesnt have an interest Apply forum law unless there is another jurisdiction that has a more compelling interest NJ Court is saying we use govt interest analysis and we dont see IA has an interest; so narrows down to NJ and CT D says argues for renvoiIA law should be applied b/c thats where actually tort occurred o Notion of the renvoi is w/ respect to CT law

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Court ultimately concludes its a false conflict b/c both permit liability Ct says renvoi could be ok under R1 sometimes, but in particular we think renvoi is particularly bad under modern approach of govt interest analysis **Answer to 3: bottom of 266-top of 267court is saying for a court using govt interest analysis, renvoi is not appropriate if the other law its looking to is a R1 approach (choice of law rules/territorial approach) o Forum here is using a modern interest approach Renvoi is particularly inappropriate if court is using govt interest analysis, b/c govt interest analysis is looking at states interest in a case, whereas R1 rules take territorial approach and looking at everything across the board to make fair ***NOTE: renvoi arguments can be made whether looking at R1 approach or govt interest analysis Phau: Forum: govt interest analysis; Argument for renvoiwhere CoL rule is R1/territorial; no renvoi What if you have a forum that uses govt interest analysis as its choice of law approach and the argument is for a renvoi where CoL rule is government interest analysis; MAY BE YES for renvoi

RICHARDS V. US Also kind of concerns renvoi; concerns federal law Multi-state airline crash (tort case) Federal statute: Federal Tort Claims Actallows you to sue federal government as if it were an individual in a state for certain torts Would be liable to the claimant in accordance with the law of the place where the act or omission occurred Negligence was in OK and crash was in Missouri Which states law are we going to apply? 3 interpretations that lower courts have come up with when trying to figure our choice of law for federal purposes: o 1) That the whole law of the place of the negligence ought to control o 2) That the internal law of the place of negligence ought to control o 3) That the internal law of the place of injury ought to control rd Court rejects 3 choice b/c it was it was inconsistent w/ the language of the statute. What is difference between 1 and 2? 1 is whole law, and 2 is just internal law Whole law= internal law/substantive rule AND choice of law rules; would allow a renvoi Internal law= just applying substantive rule about negligence; does not permit a renvoi In general, courts disfavor renvoi. But Supreme Court here interprets the word law as meaning whole law so it would possibly allow a renvoi o P. 269 thus we conclude that a reading of the statute as a whole, with due regard to its purpose, required application of the whole law of the State where the act or omission occurred Court thinks allowing the possibility of a renvoi (i.e., applying the whole law) allows more flexibility Why does permitting the possibility of renvoi create more flexibi lity? Youre not requiring it, but youre allowing courts to looking at CoL rules if they want and can look to another jurisdiction that might give you a more just result Court says theres no constitutional requirement that a particular states law apply, so they think flexibility is a good thing o Where more than 1 state has sufficiently substantial contact w/ the activity in question, the forum State, by analysis of the interests possessed by the states involved, could constitutionally apply to the decision of the case the law of one or another state having such an interest in the multistate activity p. 270

SUBSTANCE AND PROCEDURE

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A wrinkle under the R1, can still be an issue under modern approaches F applies its procedural rules Question comes up where there are rules that look procedural but actually affect the outcome of the case. Ex.statute of limitations o Statute of limitations of the forum stateif its longer than site of accident, or where K is made, the P can file in forum state even if they couldnt file in the other states where accident was or K was made, etc. Courts have come up w/ 2 different approaches o Ledesma o Global Financial Corp.

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LEDESMA V. JACK STWEART PRODUCE, INC. CA (F) 1 year SoL Ps reside AZ 2 year SoL D Injury OK & AK OK: 2 yr SoL; AK: 3 year SoL Other Ds

Which jurisdictions SoL does that Court apply? o Court doesnt apply its own SoL, instead it applies Arizona o Why apply AZ SoL? Because if apply CA law, then would only apply to its citizens. CA doesnt have interest here b/c no defendants that are CA residents Does it hold the SoL is substantive or procedural? What is the rationale? o The SoL is substantive o Rationale- CA governmental interest is in protecting its Ps and P resides in CA Note 1 p. 280: About 20 states currently say for SoL you run it through a regular governmental interest analysis instead of assuming that the SoL is procedural How critique the rationale? o If CA was interesting in protecting its P, then why does it have such a short SoL? o This is encouraging forum shopping (applied to note 1) ***When undertaking governmental interest analysis, always think about who lives where

for thurs- p. 277- 288 p. 521-536 NOVEMBER 15 No class on Thursday! Weve spent most of semester on recognition of another states law (CoL) Now were shifting to recognition of other states judgmentsgoverned by Full Faith & Credit Clause (FFC) 2 sources for FFC1) Constitution 2) Congressional statute FFC o Art IV 1 o Requires states to give full faith and credit to judicial proceedings (aka judgments) of sister states o Applies only between US states Congress has implemented statutory erquirement as well (know this! If making FFC argument, want to know it comes from Constitution and FFC) Congressional Statute: o Art IV 1
TH

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Effects Clause(aka Manner Clause) basic notion is that Congress has the ability to prescribed the way FFC will be carried out by statute o Congress has also said the Fed Courts have to give FFC to state court judgments (this is done by congressional/federal statute) FFC also said nothing about international law o In international law, no requirement that any state in the US give FFC to an international judgmentonly by comity (out of the generosity of the state courts determination that it wants to extend to international judgments o Uniform Act requiring recognition of monetary judgments in certain circumstances (p. 535)

BAKER V. GENERAL MOTORS CORP. What is the recognition of a judgment and does it include equitable relief? Said FFC doesnt require courts to recognize injunctions Elwell worked for 30 yrs for General Motors, he was their expert that often testified Toward end of his life, he said GM is doing shitty workmanship and gas tanks are exploding, decides he doesnt want to work for them; then he testified against them in another case GM sues Elwell? and then he countersues (wrongful termination) They enter into a settlement Michigan settlement Elwells injunction that says Elwell cant disclose trade secrets that would disclose exploding gas tank, and he cant testify as an expert w/o GMs consent o BUT theres an exception made for Georgia case Baker was Ps expert in GA P. 522- terms of settlement agreement Bakers in an accident, gas tank blows up, they are in Missouri; they want Elwell to testify, he says he cant Fed Court in Missouri says theyll subpoena Elwell and force him to testify; GM steps in and objects, says Michigan settlement prevents him from doing so P. 523 first paragraphcredit must be given to the judgment of another state; however, FFC doesnt compel a state to substitute a statute of another state o Court is making distinction between judgments (which FFC covers) and law/statute (CoL) o Weve talked about the public policy exceptions to CoLdoesnt pose any constitutional problem for court to say they wont recognize law of another state b/c it violates our PP PP exception is ok o Judgments of other statesNO public policy exception! (only CoL, laws/statutes) DOMAfederal statute o Says no state is required to give FFC to any act, judicial proceeding, etc. for a same-sex marriage o 41 states have enacted mini-DOMAs, which essentially say the same thing if marriage is treated as a law, then you can have public policy exception. If its treated as a judgment, theres no PP exception. Marriage has always been treated as a law, rather than a judgmentwhy? o Marriage is not judgment; not subject to FFC clause Marriage is only a ceremony and administrative o BUT divorce is (its seen as a judgment) b/c you have to go to court, its a judicial proceeding DOMA does 2 things: o 1) says same-sex marriage is not recognized for federal purposes o 2) States dont have to recognize other states same sex marriage this portion has no effect/is meaningless going back to the Baker case FFC

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o Judgments= monetary judgment at law or equity o Not an injunction P. 523 last paragraphnot an injunction for action or inaction nd P.524 2 full paragraph st Court concludesp. 524 1 paragraph Court says Michigan issued a requirement of inaction, and that is not something that is recognized by other states o But its not that broad One of the things the court was concerned with was the fact that the Bakers that sued GM in Missouri werent parties to the Michigan action (p. 525) Judgments states must grant FFC o Including: 1) Injunctions for money 2) Injunctions for action/inaction between same parties o But NOT: Injunction for inaction/action with new party Judgment on a marriage o Money judgment for loss of consortium FFC clause requires recognition of state money judgments o Except cases for loss of consortium??? But still no recognition of international $ judgments o But some states have allowed themselves to do that by adopting uniform statute Whats the rational for treating other countries judgments differently that states judgments? o Constitution cant really bind states to recognize other countries judgments o Cant be certain that other countries judgments will protect things like due process, etc. For fri- 12-2:30 PM; p. 547-565
ST

DECEMBER 1

EXAM REVIEW Sections 6, 145, and 188 NEED TO KNOW (on p. 245?) Can abbreviate (R1, R2) Dont need to know cases at all Dont need to know minimum contacts from international shoes (we didnt do jurisdiction) Question will tell you what restatement to use Theres no way to predict what court will do, doesnt matter ultimately what youre answer is. Just matter what your analysis is. If it says briefly explain why, give 1 sentence Up to 30% will be multiple choice (might be none) 1 or 2 fact patterns R2 o Do you have to list out all the factors for section 145, 188, 6? NO but you need to know the relevant ones o Restatements set out the contacts for the subjects: o 145 (Torts)sections a through d Injury Conduct causing injury Domicile, etc. Seat of the relationship this doesnt arise as much in torts Based on these contacts, figure out most significant relationship based on contacts o 188 (Contracts) Place of contracting this is ambiguous Place of negotiating

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Place of performance Domicile **for 188(3) need to know presumption rule when place of negotiating and place of performance are same, presumptive most significant relationship o 6 (choice of law principles) Apply most significant relationship based on contacts and then apply(p. 242) Relevant policies of the forum and other interests of the other states (dont have to actually throw this language out on exam, just explain the policies Ease of determination (really means a nod in favor of applying forum law) FOR K ONLY: Justified expectations Predictability Modern Approaches- 4 approaches, and 1 old one: (*** are main approaches)dont need to know professors that came up w/ them o ***(Old) R1 o (Modern) Governmental Interest Analysis (Currie) p. 196 Is there a false conflict (only 1 interested state?) When there is an apparent conflict, will taking a second sober look help you determine that reframing policies/interests will make you realize that conflict is actually false If there is a true conflict, apply forum law (this holds true even where forum has no interests but other 2 states are tied) o (Modern) Comparative Impairment This is a way to try to deal w/ false conflicts under governmental interest analysis #3instead of applying forum law for true conflict, apply the jurisdictions law that would be most impaired or harmed if not used o (Modern) Better Rule/Choice Influencing Essentially whos law is better (p. 232) 5 factors many are incorporated into R2 Apply better rule: factors: Socioeconomics Justice in individual case Expectations of the parties Archaeic rule Critique: youre just gonna let judges pick the best rule? Response - well they do that anyway so we might as well give them some guidance o ***(Modern) R2 NOTE: theres 5 approaches, but really 2 main ones R1 Torts: territorial approach o Unintentional torts- negligence- law of the place of the wrong/last act necessary This will apply in almost all cases o Intentional torts- Marra v. Bushy- place of conduct Many states use this; for exam, just use place of conduct for intentional torts Dont need to talk about Currie or any other professors, just know the approach What are the wrinkles were talking about? They apply both to R1 and R2 (all approaches) AKA escape devices o They originated w/ R1, but R2 didnt solve all the problems o They are diff ways of framing the issue so you get a diff outcome

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Called escape devices b/c judges were using them to get more fairness in a particular case Characterizationis this a tort or K? o Under R1 and R2 the contacts you look at are different o If you see fact pattern where cause of action could be framed as tort or contract, then refer to characterization Address both K and tort arguments Substance vs. procedurecomes up mostly w/ statute of limitations Procedure= apply forum law SoL are generally thought of as proceduralbut if outcome determinative can argue its substantive Substantive= if outcome determinative, can argue substantive, so not automatically applying forum law Public Policy (only an escape device for R1, NOT R2!) forum doesnt have to apply it if law offends its fundamental policy Domicileonly a wrinkle in terms of after acquired domicile o Will you apply domicile at the time of the facts or after litigation was filed? Renvoio Basic idea is that in general when youre doing CoL analysis usual approach (which is not a renvoi) is that forum applies its procedure and internal/substantive law is what is subject to choice of law analysis Forums Choice of law rules are procedural (R1?) o But what happens in a renvoi is that 1 side or the other can make argument that you should apply law of other jurisdiction (not forum) o COMES UP when forums choice of law rules point to another jurisdiction (jurisdiction 2), and then A full renvoi is then applying that jurisdictions rd (jurisdiction 2) CoL rules and internal law will point you to a 3 jurisdiction o Under R1 and R2, in general renvois are disfavored b/c you can come up with a situation that is an endless loop o But a court can decide to accept a renvoi Applying forum law points you to Jx2possibility of renvoi Jx2 can choose to accept the renvoi and apply Jx2 law, or it can reject it and send it back to the forum o FOR EXAM just need to note that if you spot it, note that could be renvoi and court can decide to apply that jurisdictions law or not and send back to forum, and generally renvois are disfavored Forum Shopping: o Policy consideration want to discourage o Forum shopping concerns diff: Federal court & state court: Federal courts apply procedure (inc. CoL) of state they sit in Erie State court & state court Court argue forum shopping not as much of a problem (compared to fed and state) o Forum shopping is something 1 party might argue forwant to discourage forum shopping to break a tie; also argue forum shopping is more of a concern w/ diversity case in federal court that state court stuff

QUESTION 3 (from exam) 2 big issues: contributory negligence and statute of limitations Contributory negligence: o Canada- where place of injury is Its rule is failure to use seatbelt would bar Ps claim o Kansas

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o WA D principle place of business KS would bar Ps claim as well

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Ps domicile Ps claim is not barred D will want to apply either Kansas or Canadian law b/c Ps claim would be barred For Ds argument, would argue that Canada law should apply under R1 b/c its place of injury D could also argue Kansas law should apply b/c its Ds principle place of business and Kansas has an interest in protecting its businesses P will argue that WA law (forum) should apply b/c its where she lives, doesnt bar recovery, WA has an interest in making sure shes not a ward of the state (giving her financial recovery) P is still in rehab in Washington There is an actual conflict here b/c Ps domicile has law protecting P, Ds domicile has law protecting D How do you break the tie? Assume WA is applying R2 Section 6one of factors is ease of application which means tip in favor of applying forum law SoL o Canada- 1 yr SoL P okay o WA- 2 yr SoL P okay o KS- P loses, no defective design claim for old product D will really want Kansas D could argue there is specific legislative intent b/c very on point here and Kansas legislature is protecting Kansas business You have true conflict between Washington and Kansas and its a tie Procedure/substance distinction is an extra argument you can throw in there Can email to set up appointment/email with questions