Conflict of Laws Outline

Downloaded From OutlineDepot.
com
Conflicts of Law Outline
Prof. Roosevelt
Fall 2011
TABLE OF CONTENTS
I.
Introduction: What is Conflicts, and why does it matter? .....................................................................................1
II.
Choice of Law .......................................................................................................................................................2

A.
The Traditional Approach ................................................................................................................................2
B.
Recurring Practical Issues ................................................................................................................................3

Domicile ................................................................................................................................................................4
Characterization .....................................................................................................................................................5
Substance/Procedure ..............................................................................................................................................7
Renvoi....................................................................................................................................................................9
Public Policy ........................................................................................................................................................ 11
Penal and Tax Law .............................................................................................................................................. 13
Pleading and Proving Foreign Law ..................................................................................................................... 13
C.
Modern Approaches ....................................................................................................................................... 14

Statutory Solutions .............................................................................................. Error! Bookmark not defined.
Interest Analysis .................................................................................................................................................. 16
Most Significant Relationship Test...................................................................................................................... 26
Better law............................................................................................................................................................. 29
Pervasive Problems.............................................................................................................................................. 30
Complex Litigation .............................................................................................................................................. 32
Cyberspace .......................................................................................................................................................... 34
III.
Constraints on Choice of Law ........................................................................................................................ 34
A.
The Constitution ............................................................................................................................................. 34
B.
State-Federal Conflicts ................................................................................................................................... 42
C.
International Conflicts .................................................................................................................................... 47
i|P age
I.
INTRODUCTION: WHAT IS CONFLICTS, AND WHY DOES IT MATTER?
Introduction
o Legislative Jurisdiction when a state can assert its authority over a person/event and say that its law determines the
consequences
o Reasons to apply your own states laws
Predictable (once the suit is filed)
Judges are good at applying local law
Avoids unfair surprises (sort of)
Promotes local policies
o Reasons to follow another states laws
To do otherwise disrespects sister state polices (Full Faith & Credit Clause issues)
The alternative would unfairly surprise defendants (Due Process Clause issues)
Unpredictable (at the time of the action)
Not applying the other states law would lead to forum shopping
o Different approaches to choice of law
Traditional
Territorialism laws of the state have force within it, but not outside it
o Comity reciprocity among mutually respectful sovereigns
o Vested rights -common law notion that vested rights pre-exist a judges determination;
this comes crashing down with Erie and legal realism (rights dont vest; judges recognize
and even create them)
Scott, A Man of Color v. Emerson (S.Ct. of Missouri, 1852)
Missouri
Illinois
Slavery is permissible
Internal Law
Slavery is prohibited (fugitives

returned; travelers not free;
sojourners (there for indefinite
period of time free)
Choice of Law
so the difference is
domicile
For status issues, apply the law of

the state where status time was last
changed
o
o
o
Forum is MI
The forum always starts by consulting its own choice of law rules
Traditional rule for status cases is the law of the forum where the status last changed should be applied; so here
the Missouri court should have applied Illinois law and said it was free
o Question becomes whether slave has acquired an Illinois domicile or not.
o Probably the answer is yes since he was there for two years
Licra et UEJF v. Yahoo! Inc. (Tribunal de Grande Instance de Paris, 2000)
o Yahoo sued by LICRA and UEJF for having objectionable content on their auction site (Nazi paraphernalia, etc.), in
violation of French law
o French court applies their own law on the theory that the harm was caused in France; orders Yahoo! to take all
reasonable steps to remove the objectionable content
1|P age
o This doesnt mean that the judgment will be enforced by U.S. courts
Yahoo!, Inc. v. La Ligue Contre le Racisme et LAntisemitisme (N.D. Cal. 2001)
o Yahoo! brought suit in federal court seeking a declaratory order that the French judgment couldnt be enforced b/c
the only way to comply would be to remove the content from their main site, which the 1st Amendment prohibited
o Extent to which the U.S. honors the judicial decrees of foreign nations is governed by the comity of nations; U.S.
courts will recognize a foreign judgment unless enforcement would be prejudicial or contrary to the U.S.s interests
o On appeal 9th Cir. vacated district court decision on the grounds that the court lacked personal jurisdiction of LICRA
II.
CHOICE OF LAW
A.
THE TRADITIONAL APPROACH

o
o
Still followed in about 18 states

Location of the forum doesnt matter, nor does the domicile of the parties; all that matters is where the tort is
committed or where the K is accepted
o Emphasis on rules and limits judges discretion, but there are still escape devices
o Every states laws have force within that state and not outside of it within the border of any state only have one set
of laws in effect, and it is the local laws
Traditional approach for torts
o Alabama Great Southern R.R. Co. v. Carroll (Ala. 1892)Lex loci delicti; apply law of the last act necessary to
complete the tort, in this case the place of injury. Example of case where traditional rule gets bad result,
because its surprising.
Facts
is a brakeman for R.R. (AL MS). Injured in MS due to the Alabama negligence of
coworkers.
PAL; DAL; RR goes from TN to AL to MS and 90% of tracks are within AL; K formed in
AL; negligence occurred in AL; forumAL; Injury MS
Law
AL can recover against RR
MS cant recover against RR
Localizing rule under the traditional approach is the last act rule where the last act necessary occurs; here
it is where the injury occurs lex loci delecti so the courts apply MS law and so P cant sue
Exceptions, even under the Restatement, to the last act rule
o Standard of care standard should be taken from the law of the place of the actors
conduct
o Person required, forbidden or privileged to act under the law of the place of acting
should not be held liable for consequences in another state
Lex Loci Delicti
Con
Pro
Most of the time it might be sensible
Doesnt allow forum shopping; uniformity
Sometimes it is arbitrary and only takes into account

where the last act occurs
Might not be uniform if not all states follow LLD
2|P age

Gets legislative intent wrong
Predictable
Easy to apply (although not always, e.g. latency period
for drugs)
Opens the door for selfish states
Expresses the sovereignty of the state
B.
Traditional approach for contracts

o Milliken v. Pratt (1878)Lex loci contractus; apply the law of the place where contract is accepted.
Facts
D is wife who signed $500 guarantee in ME. ME P's are suing her to collect a debt but she
defends by saying K is void. Unilateral contract, its performed (and thus accepted) in ME.
P ME; D MA; K ME; Forum ME
Law
ME
o Contract is valid, because wife can make it
MA
o Contract is invalid
Holding
Court finds that ME law applies
o Last act rule for K is where the contract is formed i.e. where it is accepted
o LLC is different from Law of Domicile (regulations on capacity follow person
everywhere)
For Domicile: State is best acquainted with its citizens and can best judge whos
competent to make a K
For LLC: Increased business/travel makes it more convenient; protects business
expectations
o 1934 Restatement
Law of the place of contracting determines the validity and effect of a promise
Duty for the performance of which a party to a K is bound will be discharged by compliance w/ the law of
the place of performance of the promise
In determining the place of contracting the 1934 Restatement switched from the last act rule (Beale) to the
principal event necessary to make the contract (see p. 23 for different rules for different kinds of contracts)
o Lex Loci Contractus
Pros
Uniform
Predictable
Here in Ks even more than torts there is reliance on a legal regime so this is important
Cons
Maybe not that uniform and predictabledrawback is that it requires you to go somewhere else to
form your contract, weird middle ground
RECURRING PRACTICAL ISSUES

Traditional Rule with respect to property
3|P age

o
In Re Barries Estate (Iowa 1949) (validity of will)For real property the state in which property is located (situs)
is the law that will govern a conflict. Here, the revocation of a will is governed by the law of the state of the situs
of the land.
Facts
P IL relatives; Objectors Church; Land IA; Will IL (had void written on it); Decedent IL
Law
IL
o Will was revoked
IA
o Will was valid
Holding
Iowa property owned by an Illinois decedent should be distributed according to the terms of a will
valid under Iowa law, even though an Illinois court had rejected the will on the grounds that it had
been revoked.
Traditionalist state (here IL) can disregard another states judgment (IA) purporting to affect interests
in land located in that state (IL)
o A judgment basically has to be respected if it is final, valid and on the merits b/c of the FF&C
Clause, but despite this the court finds that the judgment isnt binding w/r/t land in Iowa. So
even though you have an IL judgment, Iowa law controls b/c it concerns real property
o Real property thought to be special b/c it doesnt move; For personal property it is generally
situs law although there are often exceptions for inheritance and marital property
o Real property is w/in the exclusive control of the located state; located state has greatest
interest; easy to apply
Property divided into
Movables
o Situs at point of relevant transaction
Immovable (real property)
o Situs always the same
DOMICILE
o
Not that important under the traditional approach; more important for status b/c status is generally governed by the law
of the domicile state
Reasoning: "it is desirable that some of his legal interests should at all times be determined by a single law . . .
particularly in matters where continuity of application of the same law is important, as family law and
decedent's estates." Restatement 2d, 11 comment c
o Become more important for the modern approaches
o Different scenarios and approaches to domicile p. 33-36
White v. Tennant (W. Va. 1888)Law of domicile controls decent of property/estate. Acquiring new domicile requires that
a person enter the new state with an intention to remain there for an indefinite period of time.
o Facts
White lived in WV then bought a plot in PA; unloaded goods there, but then wife got sick so they went back to
WV; White died in WV
P WV; Wife WV/?; Death PA; Old home WV; Forum WV
o Law
PA
4|P age
Holding
Widow only gets half of estate
Widow gets whole estate
WV
White domiciled in PA. Short presence there was enough

Law of domicile governs the distribution of an estate
White gave up his WV domicile for PA domicile b/c he intends to live there and does so (however briefly)
Modern rule is that once you make it to a state thats enough to establish domicile (e.g. you are living in a hotel
while looking for a house)
CHARACTERIZATION
o
o
Different rules for Ks, torts, property. So there is a threshold question of what kind of issue we are dealing with
KR We shouldnt say we need a special choice of law solution when we have a difficult case, but instead should take a
step back and look at a normal case
o Particularly relevant in cases w/ (1) intrafamily immunity, (2) contractual relationships, and (3) substance/procedure
distinctions
Levy v. Daniels U-Drive Auto Renting Co. (Conn. 1928)Characterization used as an escape device. Court
(re)characterizes case as a contract case in order to hold rental agency liable since liability accords with states policies.
o Facts
D, a car rental agency doing business in CT, there rented a car to Sack. The P, Levy, was a CT resident who
was a passenger in the car. He was injured due to Sacks negligence, with the injury taking place in MA.
P CT passenger; D CT rental agency; Forum CT; Driver CT; Accident MA
o Law
CT
Imposes vicarious liability on rental agencies for injuries caused by the negligent operation of their
vehicles; rental agency liable
MA
Has no such statute; rental agency not liable
o Holding
Court characterizes this as a contract claim, not a tort, and so says that P has a right of action even though the
injury was in MA, since the K was accepted in CT.
The purpose of the statute is to protect the safety of the highways by giving rental companies the
incentive to only rent to competent drivers
Statute made liability a part of every K in CT and such liability arising out of the K depends on the law
of the place of K, unless the K is to be performed elsewhere
Here characterization is being used as an escape device this case is structurally the same as Carroll but the
court is saying it is a contract claim to avoid the arbitrary result
Characterization will always be necessary under the traditional approach and any other approach that has
different rules for different types of cases (and the traditional rule doesnt tell you how to characterize)
o KR:
What if this was a purely domestic case?
Characterization does not pose the same sort of problem. A P can plead both a tort and a K cause of
action. He may in fact be able to state a claim on both theories, though he will not be allowed
duplicative recovery.
5|P age
KR suggests similar approach can be used in multistate case. P can invoke whatever rights a states
law gives him. Need not characterize case to decide what rights are available. Need only ask if P can
state a claim on a given theory under a given states law.
So appropriate question in Levy, is actually can Levy state a claim under any law, on any theory?
o No tort MA claim since no vicarious liability (why they re-characterize it)
o No tort claim under CT law, under LLD it is not available for injuries suffered outside CT
o No K claim under MA law, since K made in CT
o Yes K claim under CT
Haumschild v. Continental Cas. Co. (Wis. 1959) Court uses depecage and characterization as escape devices. Here gets the
right result though.
o Facts:
Wife sues husband/insurer for his negligence in a car accident
P WI; D WI; Accident CA; Forum WI
o Law:
CA
Forbids tort actions among spouses
WI
Allows tort actions among spouses
o Holding:
Interspousal immunity should be governed by the law of the marital domiciliary (WI). Court uses
depecage and characterization to reach this conclusion since it does go against LLD.
Court says two issues presented: (1) tort claim and (2) capacity to sue. The tort claim would be governed by the
place of the accident, CA. However, capacity to sue, as a family law issue, would also be governed by the
territorially appropriate law, namely the law of marital domicile (WI)
Result is depecage - applying different states laws to different issues
Probably makes sense here WI legislature would want their law to apply; CA doesnt have much
interest in frustrating the WI policy
KR Useful way of thinking about choice of law
o The CA Supreme Court said that capacity to sue should not be decided by law of place of accident, because that is
fortuitous and irrelevant, its more properly determined by the law of the domiciliary. So CA would apply WI law,
which suggests that WI law is the proper result
o Can divide state laws into their internal laws and their choice of laws
WI
o
o
o
o
o
CA
Internal
No
immunity
immunity
Choice of
Law
LLD
Domestic law
(Emery v.
Emery)
Think about in terms of scope and priority

What rights, what claims and what defenses do the different states laws give these people? What do we think?
States like their domiciliaries and want to protect them/keep them whole
How do the different rights under states laws interact with each other? What rights should prevail?
Could you look at a foreign states choice of law rules to determine their interest in the cause of action?
6|P age
KR says yes; so in Haumschild you could look at CA choice of law, which says to look at WI law, and therefore
say that this shows lack of interest by CA courts
KR p. 106 (supp) this is a false conflict: CA law grants a claim and no defense opposes it
Tricky Characterizations problems (p. 44-46)
o Venuto v. Robinson vicarious liability: tort or contract
o Preine v. Freeman K law regarding release of tortfeasors
o Caldwell v. Gore damn in LS affects adjacent land in AK; tort or property?
o Swank v. Hufnagle woman executed mortgage for a property in another state; K was made in a state that allowed this;
property was in a state that didnt
o Burr v. Beckler similar to above except laws reversed
o Cutts v. Najdrowski inter vivos gift or testamentary gift?
SUBSTANCE/PROCEDURE
o
Basically a straightforward characterization problem, but gets special treatment b/c it comes up very often and it has
been dealt with explicitly and extensively
o Procedure will be exclusively forum law (ease of administration); but there are concerns with this
o Choice of law analysis may be different from Erie analysis b/c of the reasons that you are making the distinction
o One possible approach is to distinguish between right and remedy:
Law of the place where the injury was received determines whether a right of action exists, and the law of the
place where the action is brought regulates the remedy and its incidents, such as pleading, evidence, and
practice. (Levy v. Steiger)
Grant v. McAuliffe (Cal. 1953) Court characterizes survival statute here as procedural; this comports with intuitions, but
the characterization itself appears to be strategic escape device to achieve this desired result, rather than principled.
o Facts
Car accident in AZ where negligent driver dies shortly after accident
P CA; D (administrator) CA; Tortfeasor CA; Forum CA; Accident AZ
o Law
AZ
Says tort doesnt survive death of tortfeasors
CA
Tort does survive death of tortfeasor
o Issue
Whether survival statute is substantive of procedural?
o Holding
CA court classifies issue of survivability as involving what claims could be brought against the decedents
estate, hence a procedural issue, governed by forum law, so tort claim survives.
Argument for substantive law
Live D is an element of the claim; cant have a tort w/o one; it is outcome determinative
Argument for procedural law
Looks like a statute of limitation; unlike a wrongful death statute b/c this doesnt create a cause of
action, it just prevents the abatement of one
Characterization problem will vary between substantive/procedural according to the nature of the problem;
survivorship had been found to be substantive in another context
Here court says it is procedural b/c it doesnt create a cause of action (although it also looks like Traynor prefers
CA law as a matter of policy)
o KR
7|P age
This is a right for the wrong reasons kind of case. CA cares how the loss is allocated between the two CA
domiciliaries, whereas AZ doesnt. According to distinction here
Survival Statute isnt about regulating conduct, it is about who bears the cost; who should decide how to
allocate losses? The state that has a legitimate interest isnt the one where the conduct occurred but rather where
the parties are domiciled.
Kilberg v. Northeast Airlines Another example of procedure/substance characterization being used as escape device
o Sympathetic NY courts said that damage ceiling of MA was procedural in a case where a plane had crashed in MA
Statute of Limitations
Traditionally procedural and therefore controlled by the forum however, most states have adopted statutes saying if its
barred in other courts its barred in our courts.
The modern practice is either to provide that all limitations periods are substantive, or to adopt borrowing statutes that
provide that claims must meet both local and foreign time limits.
Problem is that limitations periods serve two different purposes:
o Procedural
Promote the litigation of fresh, rather than stale claims by encouraging prompt filing. Interest at stake here
is appropriate allocation of judicial resources, and it belongs to the forum where litigation takes place
o Substantive
Allow Ds peace of mind after some fixed period of time. This purpose requires balancing the value of
repose against the gravity of the injury; it is part of the creation of the cause of action
Protecting Ds after a certain period of time is a policy you can attribute to the legislature of the cause of
action.
If NJ creates a cause of action, should also be able to say when that cause of action disappears
Weird to have another state say when you can sue on a different states cause of action
If limitations periods always serve both interests, should not expect much luck in distinguishing between the two. The test
that courts have developed asks whether the limitations period is specifically directed to the cause of action (in which case
it is a condition of the right) or whether it is more general (in which case it is not).
Kim suggests that if assume all SOLs are substantive and procedural, then you have to meet both periods. This is what most
states do, coincidentally.
Bournias v. Atlantic Maritime Co., Ltd. (2d Cir. 1955)Court uses specificity test to determine the SoL is in this case
procedural, and so forum law applies.
o Facts
P brings claim in fed court (maritime) for a Panama Labor Code violation
P sailor; D Panama; Forum NY Fed; Accident Panama
o Law
Panama
statute of limitations has run
NY Fed
no corresponding claim, so no SoL
o Holding
P can bring claim. He succeeds under specificity test because D failed to satisfy that Panama limitations
period was specifically aimed against the particular rights when the P seeks to enforce
Rule: SOLs are classified as procedural with exceptions
SOLs in wrongful death are substantive
Ask was the limitation directed to the newly created liability so specifically as to warrant saying that
it qualified the right?
8|P age

o
Traditional approach would say that SoL is procedural

Criticized b/c it can produce forum shopping and its easy to apply; perhaps meant to express local policies on
how to prioritize the court system. Harlan says its an accident of history
Specificity Test Was the limitation directed to the newly created liability so specifically as to warrant saying that it
qualified the right? (I.e. does it affect the right and not the remedy?)
Factor: is the SoL tied to specific right, or does it apply to a broad range in a large code (as it does here)?
Doesnt matter if foreign court interpreted it as substantive/procedural for some other purpose
SoL
Substantive: releases assets/worries of Ds class
Procedural: serves forum interest in preserving fresh claims over stale claims
Harlan says this SoL fails specificity test so the claim can be brought; two ways to think about limitations periods:
It is procedural and governs the way you act in court and encourages you to bring a case quickly for procedural
reasons
Or there is a substantive interest Ds interest in peace of mind
Harlan thinks specificity is indicative of substance
Here US had no substantive or procedural interest that was greater than Panamas; Harlan got it wrong
Many states have adopted borrowing statutes: if you are suing on a foreign cause of action then it must be timely under
foreign law
KR We dont really know how to distinguish procedure/substance; best way to do it is to distinguish between law that
governs your out of court conduct and law that governs your in court conduct
Uniform Conflict of Laws-Limitations Act (1982) states decision to apply the substantive law of another state will
carry with it that states limitation period as well
1988 Amendment to 2d Restatement unless exceptional circumstances exist, the forum (1) will apply its own SoL
barring the claim; and (2) will apply its own SoL permitting the claim, unless the limitation period of the state whose law
will otherwise govern the merits bars the action
o
o
o
o
o
RENVOI
o
o
o
When your CoL Rules say apply some other states law do you go straight to their internal law or do you look at their
CoL rules?
Traditional theory (1934 Restatement) said reject renvoi
KR thinks a good territorialist should consider what the other state would do because you are enforcing
rights that vested under state B law and so it should matter to you if State B would say that no such
rights exist. But if you ask this you will be incorporating their CoL rules and this could lead to the
recursive cycle, which KR thinks we should be concerned about b/c it suggests that there is something
wrong with the conceptual framework of the traditional system
Exceptions for cases where uniformity was especially important: rights to real property located in a foreign state
and marital status
But this doesnt work if everyone accepts renvoi; KR this isnt as much of a problem as you might think; its
not just that you think uniformity is important, but also you think that only the foreign state has authority to
decide the rights in question (e.g. NY courts are saying Swiss courts have greater interest; Swiss courts
wouldnt look to NY law)
KR CoL rules are substantive b/c they are about the rights that you have and not the way by which you enforce those
rights; e.g. LLD is about who can claim a right under the states law
Choice of law rules may refer either to a states internal law the law that would be applied to a purely domestic case
w/o multistate contacts or to its whole the law that state would apply to the multistate case actually presented, by
9|P age
o
o
o
reference to its own choice of law rules. If the forum state refuses to consider the choice of law rules of the state to
which it refers, it is said to reject the renvoi; if it follows the foreign choice of law rule it is said to accept the renvoi.
If the renvoi is accepted and the state whose choice of law rules are examined refers the case back to the law of the
forum state, there is said to be remission; if it refers to a third state, a transmission. Finally, the renvoi is said to be
partial if the foreign choice of law rule is found to refer to the internal law and total if the foreign reference is also to
whole law.
2nd Restatement: still only two uses of Renvoi
When there is a disinterested forum and the courts of all interested states would reach the same result
When the objective of the particular CoL rule is that the forum reach the same result on the very facts involved
as would the courts of another state
The need for uniformity would be important enough to look past the normal reference to internal law
when:
o The other state clearly has the dominant interest in the issue and its interest would be
furthered by having the issues decided in a way that its courts would have done (e.g. land
title)
o Where there is an urgent need that all states should apply a single law in resolving a certain
question (e.g. use of the whole law of decedents domicile at death to secure uniformity in the
distribution of movables)
There is internal law (tort, contract, etc.) and choice of law (LLD, LLC) w/in the category of substantive law
Internal law = law that would be applied to a purely domestic case. e.g., merely looking to the law that characterizes
the dispute at issue. This is rejecting the renvoi.
Whole law = the law that state would apply to the multistate case actually presented by reference to its own choice of
law rules. This is accepting the renvoi
Forum Law
Foreign Law
Internal Law
Choice of
Law
Substance
Procedure
Tort, Contract
Apply if choice
of law says so
LLD, LLC
Always start
Filing deadlines,
limitations
Always apply
Internal Law
Substance
Procedure
Apply if CoL
says so
Never apply
In Re Schneiders Estate (Sur. Ct. N.Y. Co. 1950)Example of Renvoi forum state points to foreign states whole law,
which points to forum states internal law, so apply forum
o Facts
Swiss citizen domiciled in NY and dies in NY, but leaves real property in Switzerland. In his will he attempted to
dispose of his property in a manner contrary to Swiss law which gives ones legitimate heirs a right to specified fractions
of a decedents property, which cannot be divested by a testamentary act.
NY
Switzerland
Exercise will
Substantive
Cant dispossess heirs from certain

share
10 | P a g e

Conflicts
Law of the situs (entire law,

including choice of law rules)
(renvoi)
Internal law of domicile governs

citizen living abroad (so refers to
internal law of NY)
Holding
NY Court applies Swiss law based on property situs, and determines that Swiss law would apply NY law.
You always start by looking at forum CoL rules; here NY CoL says law of situs and they use the whole
law; we apply whole law b/c we want NY court to do what a Swiss court would do; here they say that the
Swiss court would apply NY internal law (but not choice of law rules, so it ends here)
Shows how unlikely it would be that you get a recursive problem; the Swiss court wouldnt say we must
defer to NY courts
Notes
Deference is asymmetrical, so only one state will usually be doing it
Traditional approach generally said reject it -- don't look at choice of law rules of foreign state. In theory,
no real reason. In practice, probably won't help you. In some special cases, Beale said do accept choice of
law, like where uniformity is important (this will work because its not really uniformity, its really
deference, so only one state will think we should look to other)
PUBLIC POLICY
o
o
Definitely an escape device

You can just pull this in to change the result when you dont like the other states law; it is in an important escape
device b/c it is always a possibility
But if you are faithful to Loucks this has to be an offensive foreign law and one that the forum state has a strong
interest in
It also has to do with the kinds of contact that the forum has
Loucks v. Standard Oil Co. of New York (NY 1918) (car accident)Classic formulation of the public policy escape
device. Dismissed without prejudice find a new forum.
o Facts
P NY; D NY; Forum NY; Accident MA
o Law
MA
o Does not allow full recovery
NY
o Allows full recovery
o Holding
Under traditional approach LLD would apply and therefore MA law but this would not allow recovery.
If NY court were to apply its own law it would be ignoring the language of the statute, which is meant to apply to
wrongful deaths in New York. But even if the statute didnt say that, if you were serious about the traditional approach
then NY law only operates w/in the borders of New York; if you dont like MA law then you can refuse to enforce MA
right in NY courts (proper resolution would be to dismiss w/o prejudice)
The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of
expediency or fairness. They do not close their doors, unless help would violate some fundamental principle of
justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.
o Notes
What if you have not an offensive claim but an offensive defense?
11 | P a g e
P comes to court asserting that foreign law entitles him to relief. If a

defense exists under foreign law, that law does not entitle him to relief. The
forum cannot claim to be enforcing rights vested under foreign law if that
law, viewed as a whole, does not grant the P a right to recover.
In more modern terms, one might say that a court cannot claim to be
applying foreign law if it only applies part of that law
Mertz v. Mertz (NY 1936) (another car crash) Public policy exception; example of the right result, but weird way to get
there. Use of PP exception to apply forum law when issue is marital immunity.
o Facts
P brought action in NY against her husband from personal injuries which she sustained in Connecticut
through her husband's negligent operation of a car
P NY; D NY; Accident CT; Forum NY
o Law
NY husband not liable to his wife
CT husband is liable
o Holding
Traditional approach would be LLD, which invokes CT law. However, NY law applied through public
policy escape device.
Definition of public policy the law of the state, whether found in the Constitution, the statutes or judicial
records; quotes Loucks but then says it isnt up to the courts to say which laws are more important
You cant use public policy exception this way or you wont be applying choice of law at all
Law of the forum determines capacity of parties to sue or be sued. NY attaches reciprocal disability here;
no other state can remove that by its law. Loucks says you cant read in public policy this says you
cant read one out
o Notes
Court appears to be motivated by the fact that CN has no business restructuring the spousal relationship of
two NY domicilairies that is, NY has the dominant inters in the issue and so it should be governed by
NY law
Right result, weird methodology
Holzer v. Deutsche Reichsbahn-Gesellschaft et al. (NY 1938) (D discharged P b/c he was a Jew; Nuremburg laws) Public
policy exception. Public policy exception is not invoked for foreign law that is anti-Semitic. Point being there is
something more at play than simply how repugnant law is when we invoke PP. Clearly the right result though that
German law doesnt apply, whereas Mertz is a smokescreen.
o Facts
A fired German Jewish employee brought a wrongful discharge claim against his German employer
P German; D German; K Performed Germany; Forum NY; K made Germany
o Holding
Here is an example of an offensive foreign law, but the court says law of place where K was made applies.
NY Court accepted employers defense that it had been required by law to fire employee and dismissed
the claim on the grounds that there is no liability for breach when performance has been made impossible
by operation of law
Whatever we think og German law on the point, its pretty clear that NY should not control this
The employment contract was formed and performed in Germany and the idea that NY law
should govern rights and liabilities between employer and employee in Germany is quite odd
How can you reconcile Mertz and Holzer?
12 | P a g e

o
In contrast to Mertz, this does not look like a case where the issue is more appropriately controlled by NY.
Contacts with NY were much stronger in Mertz than in Holzer, and an implicit judicial sense that NY law
should govern Mertz but not Holzer helps explain the different outcomes
Public policy may sometimes be used as an escape device not so much because the foreign cause of action is
repugnant but because the court feels that he result under ordinary choice of law analysis is incorrect. Also, the
repugnance of a foreign right has more to do with the way in which it is given effect in a particular case than
with how intrinsically offensive it is
Flow chart of repugnance of law on X axis and degree of involvement on Y axis
Another point is that recognizing foreign law may be more or less offensive depending on what recognition
requires, and that in turn depends on what the connection of the litigation to the forum is.
Applying CN law in Mertz would have required the NY court to allow in NY precisely the conductan
inter-spousal tort suitthat NY prohibited.
In Holzer, by contrast, recognizing the validity of the Nuremberg laws, as they applied to an employeremployee relationship in Germany, would mean nothing more than denying recovery to the employee.
Things would certainly have been different had the court been asked to allow a German company
operating a factory in NY to fire its non-Aryan employees.
So the stronger the connections between a case and a forum, the more likely it is that giving effect to an
odious foreign law will trigger the PP exception
One difference is that Holzer has no connection to the forum except its where the suit is brought whereas in
Mertz they were NY domiciliaries
In Mertz NY law had something to say on the subject, whereas in Holzer it didnt so you could say that in Mertz
both states were trying to regulate
KR maybe Mertz is best understood as a choice of law case and NY law has priority; Holzer: German law
creates rights and obligations whereas NY law doesnt; you cant decide this case under NY law it cant be a
choice of law question
Mertz: public policy exception is a smokescreen for choice of law decision
Holzer: theres no argument that NY law should regulate this
Could you say that German law creates a right and NY court will recognize it, but wont recognize the
defense?
o Very disrespectful to Germany to pick and choose the elements of law you like
o But NY does want to help out P and here there is no other forum available, but is it fair to D? D was
required to do what he did by German Law
PENAL AND TAX LAW

o
o
Courts of one state wont enforce the penal (i.e., criminal) and tax laws of another state
Justification: if a sovereign state wants to prosecute someone they should use their own courts; this isnt a dispute
between private parties (less true than it used to be w/r/t taxes; see p. 83 for cases). Its a suit between a sovereign
and an individual. That state has its own courts and its own proseuctors, and so must use them to enforce its laws.
Some difficulty in figuring out when a law is penal
Cardozo a law is penal when its purpose isnt just reparation to the one aggrieved, but vindication of the
public justice
Definitely criminal laws
Punitive damages sound penalFirst Restatement includes them
Damage multipliers are harder to characterize, and get inconsistent treatment
PLEADING AND PROVING FOREIGN LAW

13 | P a g e

o
Under traditional approach when you are bringing a claim the steps are
Characterize (tort, K, etc.)
Segregate issues into substance and procedural, and for substantive must decide what kind of
claim they present
Localize
Where is property located, K formed, tort occurred etc. Maybe some exceptions, escape
devices
Usually use last act rule
Apply the rule appropriate to whatever type of claim is before it
LLD for tort
LLC for contract
If get a foreign law now, ask:
If the foreign cause of action should be rejected as offensive to the forums public policy; and
Should it use foreign choice of law rules as well? (renvoi question)
If after all that you get pointed to foreign law, then apply foreign law
But how know what the foreign law is?
o Party has to plead it
o Should parties argue about it in their briefs, or should experts come?
o Traditional answer is experts
o Under the traditional system, according to Beale, treat it as a fact to be pleaded and
proved by the party whose cause of action or defense relies upon foreign law
Facts are proved to the fact finder (maybe judge, maybe jury); if it goes to
the jury it is pretty much impossible to have appellate review and at best it
is going to be circumscribed appellate review
Juries are not good at law, even more so w/r/t foreign law
States have generally gotten around it; statutes now often authorize judges
to take judicial notice of foreign law
Walton v. Arabian American Oil Co. (2d Cir. 1956) Example of trying to discern what the foreign law is.
o P AK; D DE/NY; Injury Saudi Arabia
o Complaint didnt allege Saudi law, nor did he prove it at trial; trial judge didnt take judicial notice of it and gave
directed verdict in favor of defendant; Court of appeals affirms
PARTY AUTONOMY AND STATUTORY SOLUTIONS

o
o
Foreign wills most states have passed legislation validating wills executed outside the state of administration
UCC 1-301 (p. 92-94) doesnt try to list out all of the possibilities; instead basically says partys choice governs.
This gives predictability, but one objection to party autonomy is that the state whose law doesnt get chosen are
pissed b/c you are destroying the limits that the state placed on freedom of contract
Consumer contracts were excepted; they still required a reasonable relation between the transaction and the
chosen state and even then could not deprive the consumer of non-waivable protections of his home law
An otherwise effective choice of law would be invalidated if it selected a law whose application would be
contrary to a fundamental policy of the state or country whose law would govern in the absence of the
parties choice
No fault insurance typically cover loss regardless of fault while eliminating negligence claims; almost all contain
provisions delimiting their scope in multistate situations
14 | P a g e

Borrowing Statutes directs forum to dismiss claims under foreign statutes of limitations in appropriate
circumstances; about 2/3 of all states have such provisions; when referencing foreign limitations the usual view is to
include tolling statutes as well
Pritchard v. Norton (1882) (P signed appeal bond and K w/ D to indemnify him if he has to pay bond) Rule of validity if
theres one states law that allows K to be valid and one that doesnt, choose the valid one.
o Facts
P LA; D NY; K executed NY; K performed LA; Forum LA
o Law
NY Invalid. no consideration b/c Ds didnt request P to be a surety so its void
LA Valid. preexisting liability of P as surety was consideration
o Holding
Court says that LLC is a presumption and that in this case it has been overcome by the intentions of the
parties, so apply LA law.
Choose the law that would make the K valid b/c that is most likely what the parties intended
Party autonomy would argue parties interests and freedom of contract
The significance of party autonomy is that you can do what another state will let you do what you
want to do, not that you can do whatever you want
Siegelman v. Cunard White Star Ltd. (2d Cir. 1955) (Ps wife injured on cruise from UK to NY; ticket has English law clause)
For issues of K interpretation, parties choice governs because it doesnt expand their contractual power. For
issues of validity, use test.
o Facts
Siegelman brought suit to recover for injuries suffered by his wife aboard Cunards ship during a trip from
NY to England. Ticket was bought in NY, and said that all questions arising on this K shall be decided
according to English law. Said 1 year from accident to sue.
P NY; D England; Ticket NY; Forum NY Fed
o Law
This is maritime law so we are applying federal choice of law rules
England Ps claim barred by statute of limitations
o Holding
English law should be applied to the interpretation of the K.
Choice of law clause is always good for interpretation b/c the parties could have just included the
K law of whatever states law they wanted in the K itself
Not enhancing contractual power to give effect to interpretation that is chosen
Validation is a harder question b/c you are increasing party autonomy and may be offending states
interests
In order to be permitted to govern, the law of the parties intention must (1) be bona fide and
(2) must be that of a jurisdiction having some relation to the agreement generally either
the place of making or performance. See Rest 2d Section 187
Substantial relation to the K, is an important limit on choice of law for validity of K. place of
execution not really given that much weight here because its too easy to manipulate. Were
looking for a reason that will give a state a reason to care about the K
Here court uses UK law for both; relieves court of having to resolve conflicts of laws question; parties
intention will be permitted to govern validity if:
2d Restatement (p. 105-06) KR This is worth knowing
o If the issue is something that you couldve been more explicit about in the K (e.g. writing out a certain states rule
for interpretation) thats fine, but this doesnt work for validity (e.g. cant have an appendix saying K is valid)
o
15 | P a g e

Uses substantial relationship/reasonable basis test to balance out party autonomy for things that couldnt have been
made explicit in the K
In determining a substantial relationship think about how easy it would be to manipulate
o But you cant choose the law of a state, even if it has a substantial relationship, if it offends the policy of a state
whose law would otherwise apply (p. 108-09)
Wyatt v. Fulrath (N.Y. 1965) Parties choose NY law regarding how property is vested to estate, and NY law has some
interest because thats where property is located, so given this interest and parties choice, it overrides Spains interest.
o Facts
Parties (husband and wife) are in Spain; property (cash & securities) is in NY; K is formed in Spain; forum-NY
o Law
Spainsays property is community property of the spouses and only half should have gone to the wife
when the husband died
NYParties had agreed to NY law of survivorship which would give all the property to the survivor
o Holding
NY law applied, she can get all of the property.
Court says that the fact that the property is in NY gives them the right to decide which forums law will
apply
Court is basically taking the same approach as the 2d restatement, although it didnt exist at the time; NY
has some interest and the parties have expressed interest so this overrides Spains interests adopts NY
law
Hope v. Brewer (N.Y. 1892) and Estate of Crichton (NY 1967) (p. 117) (husband trying to cut wife out of will)
o Different from Wyatt b/c it doesnt look like the parties are working together and so there is a weaker case for party
autonomy and state interest therefore plays a larger role
o
C.
MODERN APPROACHES
INTEREST ANALYSIS
What does it mean to say a state is "interested"?

o Construct the policies behind the law, try to figure out if they are affected by application to this particular set of facts
o A state is interested if its laws reach the facts of the case. More intuitively, would the legislature care about it, is the
policy at case. To operationalize it, it should be as though you are interpreting a statute. Does the statute apply to
these facts
Chesny v. Marek (7th Cir. 1983) Domestic conflict
o Concerns interaction between (1) Rule 68 of the FRCP, which allows D to offer a settlement, and if it is rejected and
the judgment ends up being less than the settlement amount the offeree must pay the costs incurred after the making
of the offer, and (2) 42 USC 1988, which allows a prevailing plaintiff to get his attorneys fees reimbursed in a
civil rights suit under 42 USC 1983
o Question is whether Rule 68 offer prevents P from getting an award of attorneys fees; dispute is whether costs in
Rule 68 includes attorneys fees where a statute allows attorneys fees to be taxed as costs recoverable by the
prevailing party
o This isnt a multi-state case, but is useful b/c it can show us the tools that might be used in such a case
o Posner looks to the purpose of the statute and says it is substantive b/c it serves the goal of promoting civil rights
actions and if rule 68 tried to take away that right it would be abridging a substantive right, which it cant do (per
Rules Enabling Act); so he reads it narrowly so that it doesnt conflict
Says that 1988 was passed more recently so court will vindicate that congressional purpose
16 | P a g e
Marek v. Chesny (1985)

o Court affirms circuit decision but Burger says it isnt substantive, but they dont conflict anyway
If you just say that Rule 68 costs sets up the background framework then 1988 fits neatly it says as
part of costs so if you dont get the costs then by the plain terms of both the rules you cant get the fees
Probably giving too much credit to Congress to say they had Rule 68 in mind when they drafted 1988
o The reason for having both Marek v. Chesny and Chesny v. Marek is to show that reasonable jurists can disagree
Brainerd Currie Married Womens Contracts: A Study in Conflict-of-Laws Method

o Revolutionizes the way people think about choice of law (see p. 126)
o Why did states stick w/ the territorial approach if it produces perverse results in of the cases?
Leads to uniformity of results regardless of the forum
As long as both states (1) characterize it the same (2) apply the same territorial rule (3) locate the
connecting factor (where it takes place) the same way, (4) dont invoke public policy, etc.
o Currie traditional approach doesn't provide enough uniformity vs. the costs of arbitrary impairment of one state's
interest w/out advancing that of another
Milliken v. Pratt
o ME statute--married woman competent to bind herself by contract
Concerned with ME security of transactions
o MA statute--married woman could not bind herself by contract
Concerned with MA married women
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Is MA
interested?
Y
Is ME
Interested?
T
MA
MA
ME
MA
MA
ME
ME
MA
ME
MA
ME
MA
ME
ME
IA type
1st
Restatement
Y interested; N not interested; U Unprovided for case; F False Conflict; T True conflict; to say a state is interested is to say
that its law reaches a certain transaction; case falls within the scope of a states law
o
o
o
o
In the unprovided for case, Currie says apply the law of the forum; this is a bad idea b/c it destroys uniformity
Also says that where there is no good reason not to, you should apply the law of the forum; again doesnt promote
uniformity and increases interstate friction
In true conflict cases he says apply the law of the forum
Territorial approach is arbitrary and random if youre thinking about state policies; Curry says you can do better if
you think about state policies. Its hard to do better in true conflict cases, but with false conflicts it is a lot better b/c
you promote that states policies w/o injuring the other states policies. The question is whether you can really
identify false conflicts and what are the systemic costs of interest analysis.
Method
Construction/Interpretation: Same policy analysis as in domestic cases to determine whether substantive
law applies to situation (conventional statutory interpretation).
17 | P a g e
First ascertain policy and then ask if it comes into play w/ the facts to create an interest.
o Actual intent - Explicit legislative directive (usually for policy but not interest).
Problem here w/ collective action.
o Constructive Intent - Pulls reasonably plausible norms but still defers to legislature.
(e.g. no extraterritoriality presumption for Congress).
o Independent Norms - No significance granted to legislature (Currie is against this but it
still leaks through - e.g. rejecting a state's choice of Beale as not in express disavowal of
interest.). Objective definition of interests would move to Bealean style of external
norms.
It will hinge on definition of interest but same thing happens in domestic cases (Posner v. Burger
in Marek).
This approach is basically indistinguishable from the 2d Restatements Most Significant Relationship test
False Conflicts
Tooker v. Lopez (NY 1969) (NY girls (MI students) crash in MI; MI has guest statute) False conflict example, only NY
interested, so apply NY law. Common domicile case so good advertisement of Currie.
o Facts
P (Tooker, passenger) NY; D (Lopez, driver) NY; Accident MI; Car/Insurance NY; Forum NY.
Also Silk was a passenger (MI)
o Law
MI has guest statute defense that permits recovery only for gross negligence
Intended to protect drivers (probably MI drivers)
Intended to protect insurers (probably MI insurers)
NY no guest statute
Intended to compensate injured people (probably NYers and people injured in NY)
o Holding
Since no MI insurer was involved this is a false conflict apply NY law so recovery
Best advertisement for Currie approach because state of the wrong and injury differs from the state of the
common domicile of the P and the D
However, the MI passenger, under interest analysis would not be able to recover since there was no reason
to give her the protection of NY law
Troubling that people who are similarly situated can receive different choice of law outcomes?
Maybe its a consequence of American federalism
Kim asks, is this a Privileges and Immunities problem to say NY people get benefit of this
statute but MI people do not?
Under traditional approach LLD MI law (possible escape devices: against public policy, guest statute is
procedural, its status related)
NY court says (relying on Babcock) that the purpose of the MI guest statute is to prevent defrauding of
insurance companies; if that is the case then MI shouldnt care if its law is applied b/c the car is insured in
NY. In terms of NY interests, NY has a policy of requiring tortfeasors to compensate victims for his
negligence and this case involved NY domiciliaries and a NY-based automobile
18 | P a g e
Babcock v. Jackson same situation except w/ Canada; court rejected LLD and refused to apply
Ontario guest statute b/c relying on one fact that had no relation to the purpose of the conflicting
laws resulted in decisions which frustrated the interests and policies of the State in which the
accident had taken place as well as NY. Here the court had held guest statute was to prevent
collusion against insurance companies.
Of course this is unlikely to be a collusive suit since the parties are dead
But if you look at Dym v. Gordon you could say that MI is interested; but NY court rejects this
o Dym was basically the same as Babcock, but the Colorado law in question permitted
recovery for gross negligence and the court found that the CO law had the purpose of
preventing insurance fraud and also protecting against ungrateful guests; therefore it was
a true conflict and NY court decided to apply CO law
o Court here says Dym decision was incorrect in how it interpreted the policy behind the
CO guest statute
Dissent says that it is unfair that Tooker can recover but Silk cant
KR: maybe Silk can recover under interest analysis b/c MI is interested in letting Silk recover but
not interested in providing the guest statute defense to Lopez, a non-MI domiciliary
This case should make IA look good; little bit harder if you look at the MI P;
Schultz v. Boy Scouts of America, Inc. (NY 1985) (NJ kid raped by NJ scoutmaster, but occurred in NY) Common
domicile and loss allocating rule at issue = False conflict, apply NJ law. Loss allocating rules point to domicile being
interested, conduct regulating rules point to place of injury being interested. Harder case than Tooker though
because shared domicile bars recovery, so the loss-allocating rule seems to conflict with the conduct regulating rule of
the locus state. (Only really easy false conflicts are when the law of the common domiciles loss allocating rule grants
recovery while the law of the locus state bars it)
o Facts
P NJ; D (Boy Scouts) NJ (time of events) & TX (time of suit); D (Franciscan Brothers) OH; injury
NY
o Law
NJ has charitable immunity
Loss allocating rule
NJ charities shouldnt bear the costs of their negligence
NY charities can be sued
Hold NY charities liable
o Holding
False conflict, apply NJ law since NY not interested given that we have NJ charity.
When conflicting rules involve standards of conduct (conduct regulating)
Law of the place of the tort will usually have a predominant, if not exclusive concern because the
locus jurisdiction's interests in protecting the reasonable expectations of the parties who relied on
it to govern their primary conduct and in the admonitory effect that applying its laws will have on
similar conduct in the future assume critical importance and outweigh any interests of the
common-domicile jurisdiction
When conflicting rules involve allocating losses
(limiting damages in wrongful death actions, vicarious liability, immunities etc)
Locus jurisdiction has at best a minimal interest in determining the right of recovery or the extent
of the remedy in an action by a foreign domiciliary for injuries resulting from the conduct of a codomiciliary that was tortious under the laws of both jurisdictions
Interest analysis is not contact counting. Only those contacts that relate to purpose of the particular law in
conflict
19 | P a g e
When rules are conduct (like rules of road) law of place of tort has almost exclusive interest
When rules are loss-allocative law of common domicile b/c parties accept both benefits &
burdens of living in that jurisdiction
Schultz is a harder case because in cases where the shared domicile bars recovery, its loss-allocating rule
seems to conflict with the conduct-regulating rule of the locus state. In Schultz, that is, NJ's policy about
loss allocation (that charities should not bear the costs of their negligence) comes into conflict with a NY
policy that is in part about loss-allocation (Nyers believe that charities should bear the costs of their
negligence) but also n part about conduct regulation (NY seeks to deter negligence even of charities).
In short, the set of very easy false conflicts is quite narrow: it is not all common-domicile cases where loss
allocating rules are at issue; it is only those cases in which the law of the common domicile grants recovery
while the law of the locus state bars it
Kim says
This case makes a lot more sense to be thought of as a false conflict. NY wants to hold liable
since it thinks this conduct is wrongful and wants to deter it. NJ wants to allocate looses in a
different way.
NY is admittedly interested in this, but what if the situation was reversed? (P NY; D NY; Injury NJ)
NY would be more interested in mirror-Schultz
Is there any reason to think that you should only be able to apply NY law in one situation?
o The idea is equality we are trying to use choice of law to decide cases where states have
competing authority and we want to do it fairly
o So you can ask what would we do if the situation was reversed
Franciscan Brothers
From a no immunity state (OH)
Why is it getting the benefit of NJ charitable immunity law?
o This is supposed to get you to think about how to set a states law to promote its
purposes; if the purpose of charitable immunity is to protect the charities in your state it
doesnt make sense to extend it to Franciscan brothers, but if you think that the purpose is
to encourage charitable works in NJ or w/ NJ residents then you could make an argument
that it should be extended
It isnt always easy to establish what interests are at stake and there is the ability to manipulate, which the
court can do (and does in this case) in order to create a false conflict case, which is easier for them to
decide
Here the court says that the NY rule is to prevent burden on NY medical providers; this seems like
a weak reason
o KR When determining interests of a policy/rule it should be the same analysis as if it
were only being applied to the domestic situation; this isnt what happens in real life
You can say that NYs interest isnt that great in this case, but you cant really say that it is non-existent,
which is what the court is saying
Is charitable immunity actually just loss-allocating?
You could argue that it encourages charitable conduct so it is conduct regulating
You could also argue that it will influence charities in that they will be less careful about not being
negligent
Do you trust judges to make this distinction?
Maybe not
o E.g. strict liability as conduct regulating when it should be loss allocating
Dissent
20 | P a g e
NJ loss-allocation interest isnt present b/c D isnt in NJ anymore; NY has paramount interest in protecting
against such torts. NY rule denying immunity isnt a loss-allocation rule. False conflict so NY law applies.
Cooney v. Osgood Machinery, Inc. (NY 1993) (Cooney injured while cleaning machine. gets worker's comp from Mueller
and then goes after Osgood for mfg. negligence. Osgood tries to bring in Mueller on contribution claim)
o P MO; D (original seller) NY; Accident MO; Forum NY; Original owner NY; Mueller Co. MO
o MO statute bars tort claims by employees and contribution claims against an employer; NY permits contribution
claims
o Neumeier Rules NY approach to CoL for loss-allocating rule only; doesnt apply to conduct regulating rules (this
can be a very hard distinction to make, see Padula v. Lilarn (p. 162) where court finds that negligence/strict liability
is conduct regulating when they should have found that it was loss-allocating); if we were concerned with conduct
regulating rules the court says it would usually apply LLD b/c that is presumably the place with the greatest interest
For common domicile apply that law (false conflict)
For split domicile where each party is favored by home law apply the law of the place of the injury (true
conflicts)
Has some advantages: uniformity (as opposed to Curries solution) and doesnt discriminate
against foreigners
Court justifies this by saying that ordinarily it is the place with which both parties have voluntarily
associated themselves (although arguably not true for Osgood) and also on the basis of reasonable
expectation
Other split domicile
Unprovided for case law of the place of injury unless displacing that normally applicable rule
will advance the relevant substantive law purposes without impairing the smooth working of the
multistate system or producing great uncertainty for litigants [basically unless theres some good
reason not to]
True conflicts with tort not in a home state same as above?
o Judges usually use this as an excuse to balance
o Neumeier Rules differs from Currie b/c it says that you go back to territoriality as a tie breaker for true conflicts and
unprovided for cases
o Court says that purpose of MO statute is to restrict costs of industrial accidents and afford a basis for assessing such
costs whereas the purpose of the NY rules purpose is fairness to jointly liable tortfeasors
o This is a 2nd Rule case so law of accident is tiebreaker MO law; of course
In re Allstate Insurance Co. (NY 1993) (dispute over the meaning of an insurance contract)
o Court says that rules in Cooney and Schultz select the law of the state w/ the strongest governmental interest in a tort
case, but K cases often involve only the private economic interests of the parties, so public policy analysis may be
inappropriate and center of gravity or grouping of contacts choice of law theory should be applied
o But hedges by saying that in some cases policy analysis is still appropriate for contract cases
Unprovided for Case
Erwin v. Thomas (Or. 1973) (wife sues D for loss of consortium due to his injuring her husband) Unprovided for case, so
applies forum law. Seems like an arbitrary result, Kim would rather have the case dismissed.
o Facts
Erwin (Washington) was injured in Washington by D Thomas (Oregon). P Erwin's wife sued D Thomas
for loss of consortium in an Oregon forum
D OR; P WA; Injury WA; Forum OR
o Law
WA CL rule that wife cant sue for loss of consortium
Protects WA Ds
21 | P a g e
Mrs. Erwin has no cause of action under WA law

OR statute allows recovery
Protects OR wives, or wives of men injured in OR
Mrs. Erwin is neither
Holding
Court applies OR law, quoting Currie and basically treats the case as if everything was in OR
Court says that WA statute is to protect WA Ds and OR statute is to protect OR women so theres no
interest here
This is the unprovided for case and courts here tend to apply something like Neumeier or follow Currie and
just apply forum law
KR Right result would be that P cant state a claim (think about analogy to purely domestic case)
Resolving True Conflicts
Lilienthal v. Kaufman (Or. 1964) (D is a spendthrift whose guardian can declare his debts void) Follows Curries
suggestion and applies forum law since its a true conflict. D spendthrift wins and K not enforced.
o P CA; D OR; K CA; Forum OR
o OR statute voids Ks by spendthrifts; CA has no such provision
o Court says purpose of CAs statute is to protect the validity of Ks and CA creditors; purpose of OR statute is to
protect the spendthrift
o Court says neither states interests are clearly more important (true conflict) and so they will apply OR law b/c
courts are instruments of state policy (this is actually what Currie suggested)
Pro: simple, cant be manipulated, advances forum policies
Con: arbitrary, encourages forum shopping (disuniformity, unpredictability), slights interests of other
states, probably going to discriminate against out of staters
o Hard to know how to prioritize different states laws; judges might unjustly favor forum policies (but then a rule that
says apply forum law in cases of true conflict is just as bad)
The right answer maximizes aggregate state interest
This could be an objective question or a subject one
o Objective: which interest is more important (e.g. freedom of K is more important than
protecting wives from making Ks)
But why do we want a court deciding what interests are more important?
o Subjective: how important is it to a states legislature (as opposed to the objective
question of how important is the interest)
KR - Our conflict of laws system shouldnt try to promote certain policies like
freedom of K, we should try and maximize state satisfaction and let states
prioritize as they see fit; judges shouldnt be able to promote whatever policies
they happen to like
Judges need to look at how deeply-held these policies are in each state
o How to do this? Do states ever bargain with each other? No
(they cant). But if you look at the federal legislature they
have the power to determine choice of law but they do nothing
about it
Restrained Interpretation
Look at mirror image case in order to decide. (FFCC require choose only one of mirror images?)
22 | P a g e
Bernkrant v. Fowler Moderate and restrained interpretation to resolve the true conflict by construing away CAs
interest. Prophylactic rules dont work well when parties arent aware of them.
o Facts
Bernkrants are Nevada residents who owed John Granrud money for the purchase of a Nevada apartment
building
John orally offered them a sporting proposition whereby in exchange for partial payment and refinancing,
he would add a provision to his will forgiving any debt remaining at the time of his death
They accepted -- coincidentally Granrud died a year and a half later, but hadn't gotten around to making the
promised change to his will.
P NV; D NV (but dies in CA); K NV; Forum CA
o Law
CA Statute of frauds makes the oral agreement unenforceable
NV - enforceable
o Holding
Looks like a true conflict, but court says CA has no interest in invalidating and so its not a true conflict.
Court says an unpredictable application of CA statute of frauds (since parties would have had no reason to
believe CA law would apply) would not serve its purpose
moderate and restrained interpretation of CAs interest; the purpose of forum law is not just to benefit
forum domiciliaries the statute of frauds exists to make people put certain promises in writing; that
purpose isnt furthered here, but parties had no idea that they would be subjected to the CA statute of frauds
Wont always be that easy to take this approach (e.g. NV court would have a tougher time
justifying this)
[[Currie thought this was a good example of moderate and restrained interpretation yes CA is interested,
but not very much; similar to Schultz where although the court said NY wasnt interested it really was, but
just not very much]
o Notes
Sort of like Miranda rights. Prophylactic rule is the easiest example, not too many other cases
Outcome is that, it looks like a true conflict, but its a false conflict really.
What would CA legislature want on these facts? They wouldnt want application to these set of facts.
Only need to do this if really dont want to just, apply forum law. So moderate and restrained approach
becomes less important
Comparative impairment
Benhard v. Harrahs Club (Cal. 1976) (couple crosses in NV, drinks there, drive home drunk and crash into P in CA)
Resolves true conflict by applying CA law NV law wouldnt be very impaired by allowing liability for judgments
only against Casinos that actively solicit CA business, but CA law would be quite impaired. Aggregate interests for
each future state of world to determine maximization of policy satisfaction.
o Facts
Two CA residents drove to Harrah's in NV where they were served alcoholic beverages allegedly even after
their state of intoxication was obvious. They drove home and after crossing the border back into CA they
negligently collided with a CA motorcyclist, who was severely injured.
Harrah's regularly advertised for and solicited business in CA, and the casino was reasonably close to CA
border
P CA; D (casino) NV; Accident CA; Conduct NV; Customers CA; Forum CA
o Law
CA law extends liability to casino (dramshop laws)
Seeks to protect safety of its residents on the roads of CA
23 | P a g e
Has an interest in affording this protection to all CA residents injured in CA

NV no such civil law, no liability for casino
Acting to provide economic protection for a vital part of its economy from too much liability for
wrongs of others
Holding
This is a true conflict case; purpose of CA law is to promote safety and prevent DWIs in CA; purpose of
NV statute is to protect tavern keepers from civil liability
Apply CA law, because its policy would be more significantly impaired than the NV policy if not enforced
Is the what would happen if parties bargained, which is what the court says it is doing, an appropriate
approach? (assuming they actually reach a resolution and have equal bargaining power)
Now we are looking at the aggregate policy satisfaction so you take into account the degree of impairment;
which state would be more impaired?
CA act doesnt have to cover everyone, but D does advertise in CA
CA cant reasonably effectuate its policy of D subverts it
NV does impose criminal liability for Ds act so no real new duty
In Milliken MA has, like ME, a general policy of enforcing K's. It's policy of protecting MA women from
K's would be entirely subverted but it would still gain from enforcement of K. Thus, applying ME law to
enforce K would benefit ME by 10 and MA by 5 but applying MA law to protect MA women would
benefit ME by 0 and MA by 10.
Game Theoretical Approach (Baxter) Insight added is that true conflicts don't have to be zero sum (gain
advanced matched by other state's loss).
Apply As Law
Apply Bs law
10
10
17
10
State A Payoff
State B Payoff
Total
Cant actually quantify though b/c its too uncertain. You can look at legislative history, how old it is, how
often used in purely domestic cases, etc.
o Comparative impairment is nice in theory but a disaster in fact
o Most courts are saying they compare, but really they are just balancing
Comparative Impairments and Policy-Selecting Rules
o Developed by Baxter and adopted only in CA
o Considers the discussion that would take place of legislators from the two states negotiated: each would give up
what it wanted less to get what it really wanted
o You want to subordinate the external objectives of the state whose internal objective will be least impaired in
general scope and impact by subordination in cases like the one at hand (p. 194-95)
o Kramer (note 5) not all true conflicts are zero sum i.e. each state presumably cares more about some true conflicts
than others; the problem is identifying which state has the greater stake, which Kramer thinks is too complex and
difficult for judges. Kramer would adopt a set of policy-selecting rules
These rules should reflect policy preferences for existing laws e.g. substantive trumps procedural
o KR In practice this is a mess if you dont have rules
Principles of Preference
o Cavers developed seven rules to use in resolving true conflicts
24 | P a g e
1st rule - in tort claim law of the place of injury should apply if it more protective of Ps than the law of the
states in which the defendant resides or acted;
Cipolla v. Shaposka (friends from school, guest statute in DE)
o School DE; P PA; D DE; Accident DE
o Cavers second principle of preference if youre the defendant and your homes state will
protect you it will prevail if you are acting in your home state; if you arent acting in your
home state then plaintiffs law will prevail (similar to Neumeier)
For Ks Cavers said apply protective law of a state if the party protected was from that state and the affected
transaction was centered there
KR Maybe basing things on fairness isnt that bad; this basically creates a territorial tiebreaker that will
get things right most of the time and that people will think is generally fair
25 | P a g e
MOST SIGNIFICANT RELATIONSHIP TEST

6. Choice-Of-Law Principles
1.
A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
2.
When there is no such directive, the factors relevant to the choice of the applicable rule of law include
a. the needs of the interstate and international systems
Little independent significance
b. the relevant policies of the forum
Incorporates IA
c. the relevant policies of other interested states and the relative interests of those states in the determination of the
particular issue,
Incorporates IA
Relative seems to imply more balancing than IA though
d. the protection of justified expectations,
Movable property...want to validate a trust of it
But in area of negligence, for example, parties act without giving thought to the legal consequences of their
conduct or to the law that may be applied, so factor d plays no role
e. the basic policies underlying the particular field of law,
Choose the law whose application would best achieve the basic policy underliyng the field of law
For Ks, this generally means validating the K
f. certainty, predictability and uniformity of result, and
g. ease in the determination and application of the law to be applied.
Similar to uniformity and predictability
Since it offers different general rules for different kinds of cases (torts, Ks, etc) it retains characterization problem of First
Restatement that interest analysis avoids.
Embraces depecage, unlike the First Restatement, directing courts to perform their analysis on an issue by issue basis
Lacks an underlying theory
o Apply the law of the stae with "the most significant relationship" to the transaction and the parties with respect to that
issue
s 145. THE GENERAL PRINCIPLE TEXT
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which,
with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in
section 6.
(2) Contacts to be taken into account in applying the principles of section 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according
to their relative importance with respect to the particular issue.
**Review:
Work through section 6 factors, but make sure that you connect each one of those factors to the contacts.
26 | P a g e
So if doing a tort issue, and talking about policy of some state, you should say:
o This state's conduct regulating policy is at stake because conduct occurred in the state
o So make sure to connect section 6 factors to the contacts you're supposed to be taking into account
Work through section 6!
o But each time talking about those factors, connect it to the contacts, (if you can, some its much harder to do
than others)
KR Choice of law is a spectrum w/ rule based on one side and policy based on the other. For rule based you have
territorialism and it follows rules for both true conflicts and false conflict. With more policy based approaches everyone
agrees that you should use policy-based solutions for false conflicts, but there are differences for true conflicts. Some people
want to go back a lot of the way to Rule Based (Neumeier, Forum Preference (Currie)) some slightly less so (Kramer,
Cavers) and some still want to stick with the policy based approach (Comparative Impairment, Moderate & Restrained, 2d
Restatement)
Restatement (Second) of Conflict of Laws
2d Restatement (p. 204-05)

o 1st Restatement attacked: you should be looking at policy instead of illogical rules (legal realists)
o Criticisms:
Ridiculously mushy, indeterminate thing that says take into consideration all relevant factors and give them
all the relevant weight
o Sympathetic:
We like the 1st Restatement most of the time; we dont like it for false conflicts, so dont follow it in that
case
It does create some presumptive rules and generally those rules are the rules of the 1 st Restatement except
w/r/t false conflicts where it basically takes the interest analysis solution
This was similar to the approach taken by Judge Fuld in Auten v. Auten (NY 1954) (English couple
separates and wife tries to enforce separation agreement under NY law; Fuld says non-English contacts are
entirely fortuitous) who had advocated what he called the center of gravity theory: courts, instead of
regarding as conclusive the parties intention or the place of making or performance, law emphasis rather
upon the law of the place which has the most significant contacts with the matter in dispute
Problem w/ this approach can be seen in Haag v. Barnes, which had facts similar to Auten, but
came out the other way in one case the mans home law was applied, in the other the wifes
o Comments on the different factors (p. 206-07)
o So this is a 2 step process where the court (1) chooses a presumptively applicable law under the appropriate
jurisdiction-selecting rule, and (2) test this choice against the principles of 6 in light of relevant contacts identified
by general provisions like 145 (torts) and 188 (contracts)
o You are still going to have characterization problems (tort, contract, property, etc.)
Phillips v. General Motors Corp. (Mont. 2000) (pickup w/ sideboard mounted fuel tanks; Parents and brother die; one kid left
whos now living in NC w/ guardian; ensuing products liability case) Most significant relationship test used for tort
o Facts
P MT (at time of accident); D DE/MI; Accident KS; Purchase NC; Forum MT
o Law
P wants MT law, which has strict liability and no cap on damages; D wants KS law, which has comparative
negligence w/ a cap on damages
o Holding
27 | P a g e

Most courts dont do the 2 step process, but rather look at all the 6 factors and then allocate, which is what they do
here
Needs of interstate/intl system
Ct says doesn't point either way in this case. Neither state is predictable from D's point of view so
one won't frustrate its commerce more. If you had to say something you would say you want the
manufacturer to know what law it is going to be subject to
Policies of Interested States and of the Forum ((b) and (c))
KS (Place of Injury) Presumptive law
o GM wants a defense under KS law, which is different than Byrds asking for KS law b/c
you could say that KS has an interest in regulating products that cause an injury in KS; so
GMs argument for KS law is weaker why should KS want to defend GM? Cap is to
protect KS insurance companies, so that isnt implicated either
o Court says NC isnt interested b/c it follows LLD; NC ct could be interested if it followed
2nd Restatement
KR: likes the hard version which says that NC law doesnt reach these facts;
CoL determines the scope of laws and it is arguable that the court is taking this
approach, in which case you could never conclude that you could apply NC law
in a products liability case
Court may be taking a softer approach: NC is interested but not much b/c NC
ct. wouldnt apply NC law
You could also say that NC is interested (rejecting renvoi)
2d Restatement says generally when you are going to apply a states law, apply
the internal law (rejecting renvoi) except when trying to decide a states interest
look at the choice of law rules
o Michigan
Dismissed quickly out of a concern for creating a race for the bottom
This makes sense for factor (a) but not as much for (b) and (c) MI
loves GM
o Better argument is that MI courts havent used their own laws
in these kinds of situations
o Montana
These arent MT consumers when they bought the truck so perhaps the
argument for applying products liability is weaker
But court says MT domiciliaries at the time of the accident and estates are being
probated in Montana and it would be unfortunate if this MT kid didnt get the
protection of MT laws just b/c his whole family was killed in an accident.
o So we conclude that MT is interested and no one else is w/r/t (b) and (c)
Other factors arent really relevant and court just goes through the motions
o This basically collapses into Interest analysis: we find a false conflict so we feel good about applying MT law and
the other factors arent really relevant; 2d Restatement often looks like IA, which is fine for false conflicts, but is
more of a problem when it comes to true conflicts
Wood Bros. Homes, Inc. v. Walker Adjustment Bureau (Colo. 1979) (D refuses to pay for carpentry work and collection
agency sues; construction in NM had been shut down b/c it was unlicensed) Most significant relationship used for K
o P CA; D DE/CO; K negotiations CA, Co , NM; Execution CO; Performance NM; Forum CO
o CO D is liable b/c K is enforceable; NM statute forbidding actions brought by unlicensed contractors
o Presumptive rule 196: in the absence of a choice of law clause, law of the state where service is to be rendered
governs validity (unless 6 factors point in another direction)
o
28 | P a g e

o
2d Restatement is very unclear about how strong the presumption should be; in e.g. 196 it seems to be very weak
and you should just go through 6 factors anyway
o Court says CO interest is strong, but not as strong as NMs; says it is balancing the interests of CO and NM but
doesnt give much/any explanation for why NMs interest is greater; 6 factors dont seem to be doing anything
o Seems like you could have a simple rule that would get it right in the vast majority of cases: if K is invalid in place
of performance then K is invalid
2d Restatement does give lots of flexibility, which judges like; you get the result that seems right to the judge
o KR Criticism is that it is just a grab bag of factors, be KR thinks the analysis is supposed to be like the 1 st
Restatement, except that for false conflicts they have fixed it; gives you an avenue to explain why a presumptive
rule isnt right in a specific case; practical problem is that it is complicated and you can manipulate it
o Courts treat presumptions very differently: some basically ignore them and just do 6 analysis while others seem to
make the presumption effectively irrebuttable (e.g Spinozzi v. ITT Sheraton Corp (p. 227))
2d Restatement is most popular current approach (26/26 states); very few states do interest analysis, but b/c it is part of the 2d
Restatement it is still very influential
BETTER LAW
Followed in a handful of states

If there is a true conflict give some weight to the question of whether one states law seems archaic and outmoded
o E.g. conflict b/w recent law that takes into account new technology and it conflicts with an old law that is rarely
applied then the new law wins;
The KR approach to conceptualizing the choice of law problem
1R
IA
2R
Scope (which states laws

attaches rights and obligations)
Territoriality
Interest Policy
None
Priority (if laws overlap and

conflict you need to decide
which states law is going to get
priority)
None
Forum preference
Balance interests
Comparative Impairment
Kramers Cannons
Neumeier Rules
Cavers
2R Most Significant Relationship (6)
One virtue of this approach is that it is a useful conceptual framework e.g. if in the first step you conclude the case isnt with
the scope of either states laws then the plaintiff cant state a claim
Other value is that it allows you to put them all in this framework and then compare them (how do they determine scope, how
do they determine priority, and which is better)
29 | P a g e
KR Interest Analysis is better (at least in terms of its intellectual coherence) b/c it has the right analytical structure; if you
think that there is this two step structure then
o 1st restatement is disappointing b/c it has no way to resolve conflicts so it pretends that they dont exist
o 2d restatement goes too far in terms of being open to the possibility that some states law might apply
PERVASIVE PROBLEMS
Dpeage doing separate CoL analysis for different issues

o 1st Restatement doesnt like dpeage b/c it thinks that you should pick the state whose law has authority to regulate
and that should be it; in practice, even the 1st Restatement has some exceptions
o 2d Restatement is a big switch; likes dpeage and says go issue by issue
o IA if you think IA is about when states intend to grant rights/create obligations and since a case could have many
of these it makes sense to do a separate analysis for each of these issues; begs the question when do you say there
are two issues (claim and defense) that should be analyzed separately and when is there only one? No obvious way
to decide this
Renvoi
o 1st Restatement doesnt like renvoi either and generally rejects it b/c it cant accommodate it (no principled way to
deal w/ recursive cycle); 1st restatement says laws are territorially bounded so if you looked at CoL Rules of another
state that wasnt a 1st Restatement state you might get overlap and you have no way to resolve the conflict
o IA inconsistent in its treatment of renvoi
Expedient use of sister state laws (Pfau); if true conflict use CoL of other state to make it a false conflict;
but if looking at CoL would make a false conflict a true one then you dont to it; this is unprincipled and
the wrong way to do IA
Argument that is still being made is that IA is all about what the states are trying to do/which states are
trying to assert legislative jurisdiction; if you agree then you should look at other states CoL
o 2R
Interest determination can take into consideration whether courts of whatever state would apply their own
law; KR would like a stronger statement
o What if you took other states CoL rules seriously?
KR State A should be able to say that State A law doesnt apply, but should be ignored about what they
say re: scope of state Bs law; if state B says their law doesnt apply then it is the unprovided for case
If its a truly unprovided for case then P cant state a claim
An Imaginary Case: Adams v. Knickerbocker Nature Socy Int. (Cavers) (Knickerbocker (D) organizes nature outings;
Adams (P) goes on a trip and was taken by the camp truck to MA; truck breaks down in MA and farmer lets Knickerbocker
rep use his truck, which is unregistered; while driving truck backs into Adams where no negligence could be shown)
Depecage, Adams can invoke a MA tort claim and Knickerbocker has no defense. Go issue by issue. Any time there
is an affirmative defense you have two issues
o Facts
Adams is a dues paying member of Knickerbocker, a nonprofit corporation organized under laws of NY to
promote nature study.
P NY; D NY; Accident MA;
o Law
NY
Permits tort actions against charities
Need negligence
MA
Does not permit tort actions against charities (charitable immunity)
30 | P a g e
Considers the driver of an unregistered motor vehicle an outlaw on the highways liable without
fault
o Therefore purely MA couldnt recover b/c of charitable immunity and purely NY couldnt b/c no strict liability
o Currie Opinion Interest analysis must proceed on an issue-by-issue basis [sometimes going to be tough to tell
if something is one issue or two], but this shouldnt come up with a result unintended by either state. Its not enough
to say there wouldnt be a claim in either domestic only case. This is actually what Cavers is saying, not what
Currie is saying. Currie would say that youve just got the absence of a claim.
Interest analysis for immunity NY law applies (NY charity)
IA for strict liability MA interest in protecting domiciliaries is inapplicable but it does have deterrence
policy but no so far as to extend to charities
Rejects dpeage where result neither coincides w/ either state's intended result or common law's result.
"quite another [thing] to put together half a donkey and half a camel, and then ride to victory on the
synthetic hybrid."
KR - How do we distinguish b/w the absence of a cause of action and a cause of action that is subordinated
to a defense? [Remember the unprovided for case]
Difference is in one case you have a claim but you cant recover b/c the other guy has a defense; in
the no cause of action its like nothing bad happens/the law sees no injury
o Here MA doesnt think its ok for charities to do this, its just that you cant recover
against them in tort; this is a claim-defense situation
What if you mistakenly think there are two issues when there should only be one?
o Shouldnt matter as long as you do it right b/c you will still consider all aspects
o Dpeage shouldnt be that frightening (as opposed to 1 st Restatement) b/c you should be asking what is the policy
behind each issue that you are analyzing; 2nd Restatement assumes that you will be doing dpeage
Maryland Cas. Co. V. Jacek (D.N.J. 1957) (Husband and wife of NJ have accident in NY where wife is injured. Insurance
Co. seeks declaratory judgment determining its liability
o P NJ; D NJ; Accident NY; Forum NJ
o NJ Spousal immunity, no restrictions on coverage; NY no spousal immunity, but successful spouse wouldnt be
entitled to coverage from insurance company unless there was an express provision in the policy, which wasnt in
Jaceks policy
o So if case had been domestic to either state insurer wouldnt be liable
o NJ followed traditional approach, applying law of NJ to K and NY to tort and therefore insurer liable
o Prof. Westen said it was grotesque, not b/c of the result but b/c the issues were impermissible split. NY didnt have
spousal immunity, but they did have the explicit provision requirement. NJ had the reverse. Both were different
methods of achieving the same goal: preventing collusion b/w husband and wife against insurers
Renvoi
Pfau v. Tent Aluminum Co. (NJ 1970) (guest statute case; both D and P are students in Iowa) Example of rejecting
renvoi. Applies CTs internal law, but not its choice of law rule.
o P CT; D NJ; Accident IA; Forum NJ; Car registered NJ
o IA guest statute, no liability unless gross negligence; NJ applies IA
o Start w/ forum choice of law rules
o Purpose of guest statute cut down litigation, to prevent ingratitude of guests, prevent suits by hitchhikers, and
collusion (p. 251). None of these are applicable to a CT and NJ (following Tooker v. Lopez) so D cant invoke
guest statute
o In looking at CTs interest the court says to ignore CoL (which would point to IA law under LLD) b/c they say they
see no reason for applying CT CoL provisions b/c those dont reflect CTs interests and to hold otherwise would
31 | P a g e
frustrate the very goals of governmental-interest analysis. It says LLD was unrelated to a states interest, only
seeking uniformity [this is just false]
KR if you take LLD seriously it means that CT law doesnt give P a cause of action
o 2d Restatement says CoL rules can tell you about the strength/existence of state interest
Here it would say that CT could have an interest but it has disclaimed that interest
o IA analysis has the expedient use of using them to say that there is a false conflict; here CT is arguably not
interested, but the courts use IA to say that CT is interested and therefore false conflict and therefore easy case
IA takes the position that foreign choice of law rules have no mandatory role
o Two justifications for this approach:
State interests are defined objectively the fact that a state says it is interested doesnt make it so; state is
interested only if (and when) the forum determines that applying its law advances one of the states
legitimate domestic policies
Second view treats state interests as defined subjectively by a states own declaration of interests, but holds
that generalized choice of law rules dont reflect the states views on the subject
KR there is powerful evidence that a CoL rule is about the scope of state law and it also makes things work better if you say
they are (so what the court does in Pfau is wrong)
American Motorists Ins. Co. v. ARTA Group
o Even courts that follow the traditional approach may adopt more modern approaches if the traditional approach
would lead to a recursive cycle. Here the court says if laws of forum say apply law of foreign state and laws of
foreign state say apply laws of forum then the jurisdiction with the most significant contacts should govern
Rule vs .Standards
o Argument made that traditional approach offers a solid rule while modern approaches act as standards that may or
may not be met.
Rules: Adherence to fixed precepts limits arbitrary exercises. Efficient. Predictable. Cheap.
Standards: Substantive justice over form. Rules are over or underinclusive.
o Your view on rules/standards will depend on how much you trust judges
Paul v. National Life (W. Va. 1986) (guest statute; car accident)
o P WV; D WV; Accident IN; Forum WV
o IN guest statute; WV no guest statute
o WV follows LLD, but still doesnt apply it here
o Judge Nealys claim is basically that the modern approaches have caused more trouble than theyre worth: theyre
indeterminate, complicated, unpredictable, expensive, etc. and all the modern approach does is let you get around
antiquated rules (guest statutes, spousal immunity, etc.) and now that these rules arent so common the purpose for
using the modern approach is also gone [KR this isnt true: applying the law of the only interested state in a false
conflict has nothing to do with avoiding an antiquated rule]
o Here he uses the public policy exception, but says this isnt the old, evil version; but it certainly looks like it: guest
statutes violate the strong public policy of this State . We will no longer enforce the automobile guest passenger
statutes of foreign jurisdiction in our courts
But what if an IN domicile had to sue in WV; would he really not apply the guest statute?
For rules v. standards debate, maybe rules are more important in contract cases where party expectations are more important
COMPLEX LITIGATION
Courts like to have a single state's law applicable in multi-claim monster cases. They will manipulate doctrines to reach that
result. Reasons for applying single law at least to each issue:
o Unfairness to similarly situated tort victims
o Inconsistent results
32 | P a g e
o Complexities, increased costs and inefficiencies

o Forum-shopping incentives when multiple state laws apply
If youre going to have lots of different states laws apply to a single case you probably cant certify the case as a class action
b/c you wont be able to satisfy the predominance requirement of Rule 23
o If you want to only apply one states law it will most likely have to be the defendants home states law
You could argue this is a good approach b/c it gives the plaintiffs the option to pursue a class action
In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979 (7th Cir. 1981)
o P - CA, CT, HA, IL, IN, MA, MI, NJ, NY, VT, P.R., Japan, the Netherlands, Saudi Arabia; D (MDC) MD, MO;
Misconduct CA; D (American) DE, (NY); Misconduct OK; Accident IL
o Question is about punitive damages; IL says no; MO says yes; CA says no; NY say no; Texas says yes; OK says yes
So you would have to apply IL if you wanted no punitive damages against either defendant
o These suits all start in different states and are transferred to other states so you should apply CoL rules of transferee
state (so you have to apply a bunch of different states CoL rules)(Klaxon CoL rules are substantive for Eerie
purposes; so Fed ct sitting in diversity jurisdiction applies the CoL rules of the state in which they sit or the
transferee state)
o IL follows 2d so whos interested? States of domiciliaries, although court says this isnt true, ignoring compensatory
aspect and focusing on deterrence (basically they want to make their lives easier)
This is an example of how to manipulate the doctrine to reach the result you want (IL law governs); this
one isnt even that skillful [it says NY follows 2d restatement it doesnt; same with MI]
o Courts does some weird things in order to conclude that one states law governs the issue
Court says states arent interested in punishing people that kill their domiciliaries if it occurred outside the
state
Says they are using 2R but finds equal interests b/w 2 states and then uses a 3rd state to break the tie
Says NY and MI use 2d restatement, which isnt true
Says it cant figure out was HI choice of law is
o There is a common impulse in courts and among academics that where there is one accident there should be one law
that is applied
In Re Agent Orange
o Under Klaxon, has to apply law that would have applied to each court of original filing (despite class cert.).
o Chief Judge Weinstein tried to create a national consensus law
o The big question is whether an individuals claim be treated differently b/c it is part of a class?
Weinsteins approach clearly says yes
Then again FRCP arent meant to abridge substantive rights; so if you think CoL is substantive then you
would think that it should be the same no matter if it is an individual claim or a class action; this is the court
consensus
Congress has made it easier to certify a class and you can immediately appeal class certification; largely as a response to
judges who had been making class actions harder and the reality that if you had a class certified against you, you usually
settled b/c you couldnt gamble on a trial
Class Action Fairness Act response to the fact that some states were very class action friendly; law says defendants can
remove to federal court w/ minimal diversity and therefore applies more stringent standards for certification
o Didnt include a CoL provision although they could have; they probably didnt do it b/c they intended that CoL
would be a barrier to certification in a lot of cases
ALI proposal for Mass Torts and contract actions (p. 288)
o Sets out some rules; Notes objective of applying one law to all P's in mass tort.
Factors: Place of injury, place of conduct, PPB or habitual residences of P and D.
If no state stands out, then
If place of injury and conduct are same, that state governs
33 | P a g e
o
o
o
If not, then if P and D habitually reside or PPB in same state, that state governs.
If not, then if all P habitually reside or PPB in same state as injury, that state governs.
All others, place of injury.
Current trend is to make certification more difficult. And cts. have begun to reject arguments for bending choice of
law rules in order to apply single state laws.
Debate on whether we like class actions 289-292
Vioxx case court said that while there were different consumer fraud laws in every state, they would apply NJ law
b/c it offered the most protection
CYBERSPACE
In the beginning people were saying that this would change everything and that cyberspace should create its own rules.
Johnson and Post: multiplicity of jurisdiction in which you r behavior is subject to regulation should mean that much
behavior is presumptively not subject to regulation anywhere (except cyberspace).
Goldsmith Nothing is new w/ cyberspace; it increases incidence of conflicts but doesnt change their nature
Lessig neither view is quite right; there is something new, but it is only a difference of degree and with a different level of
actor. The legal tools we developed for these questions were designed to deal w/ conflicts among institutions, or relatively
sophisticated actors (corporations, sovereigns, etc.)
Internet does make it harder to take territorial approach b/c its hard to determine localizing factors
o w/ enough cases you could probably develop rules e.g. for slander you could choose place of server, place of effect,
etc.; but it will be hard to come up with a rule that makes sense in terms of its justification
KR Internet means that you have to pay more attention to conflicts b/c it will come up more often and you will have to
think about them in a more sophisticated way geographic location isnt as important
o It may be that CoL cant do this one its own
You also have personal jurisdiction
You also have recognition of judgments
Licra et UEJF v. Yahoo! Inc.
o LICRA wins in France, but cant enforce in US; US doesnt allow French law to be repugnant to US policy and
Yahoo has to worry about putting assets in France
o The extent to which you have to modify your behavior in order to avoid liability seems relevant
KR Reminds him of Bernhart just as you could check IDs you can check IP addresses
This is basically comparative impairment analysis
KR doesnt offend the 1st amendment when foreign law is applied in a reasonable manner; but state of the
law is if the court says that the foreign law is repugnant to the first amendment we will not enforce that
judgment. KR thinks this goes too far
Cases dealing with various internet issues
o Bulk e-mails p. 307
o Defamation p. 307
o Porno p. 308
o Online Gambling p. 308
III.
CONSTRAINTS ON CHOICE OF LAW
A.
THE CONSTITUTION
34 | P a g e
Possible approaches that the Constitution could have taken re: CoL
o Explicit rules (e.g. fugitive slave clause, Supremacy Clause)
o Meta rule rule about the kinds of CoL rules that you can have
Full Faith & Credit Clause (Art. IV) when sister state law prevails in a conflict
Due Process Clause is about when states cant impose obligations; about relationship b/w states and
individuals (as opposed to P&I and FFC, which are about relations b/w states); fundamental fairness
Commerce Clause (kind of)
Privileges & Immunities Clause (Art. IV) - About when out of staters get rights;
o Give Congress authority to make CoL rules
o Structural devices (e.g. federal courts w/ diversity jurisdiction)
o Leave it to the states
Why is this not a good idea?
Youre worried that they wont cooperate; theyll act like Currie said they would
The way the court has interpreted the Constitution is closest to leaving it to the states although it contains all the other
approaches as well
Home Ins. Co. v. Dick (1930) (Dick brings suit in TX to recover from Mexican insurance for burned tug in Mexican waters)
DPC problem, unfair surprise. No one could have guessed this. No contacts to TX when made contract.
o P TX (Mexico); D NY (Reinsurer, Mex. Insurer); K Mexico; Subject Mexico
o Mexico K clause saying claims must be brought w/in 1 yr is valid; complete defense; TX statute prohibits
clauses that limit suit period to less than two years
o The respect that states owe to foreign country law is up to the states (bizarrely) so FFC isnt an issue, but DPC is
o TX cant change the terms of the K b/c it has no contact; why is Dick being from TX not enough?
TX maybe has an interest, but it doesnt have contacts w/ the K at the time of formation (Dick wasnt a
party to the K when it was formed); to hold otherwise would be unfair surprise
Interests are forward looking (TX has them); contacts need to be present at the time of the events
giving rise to the litigation
This is true, even if it is assumed that the TX has a strong public policy that conflicts with Mexican law
Might be different if TX refused to enforce a Mexican right b/c it was offensive to their public
policy this wouldnt be changing the plaintiffs rights; but here TX is changing the plaintiffs
rights and unfairly surprised the D, who hasnt done anything to surrender themselves to TX law
It is no contact at all that determines the outcome here; if there was any contact it probably wouldnt be a
DPC violation
Bradford Electric Light Co. v. Clapper (1932) (P sent to NH to work on an electric line and is electrocuted; widow sues in
NH) FFCC case, seems to say that a state with only a casual interest in a case may not refuse to recognize the law of a
more interested state. Here we have shared domicile, loss-allocating issue, clearly false conflict. Unconstitutional for
NH to apply its law. Overruled by Pacific Employers.
o P VT; D VT; K VT; Accident NH
o NH workers comp or tort action; VT workers comp only; applies to out of state actions
o Employer asserts FFC of VTs law as a defense; No DP arg b/c accident in NH means no surprise
o FFC analysis
VT has a significant interest, while NH doesnt [debatable]. This is probably constitutionalizing IA for
false conflicts you cant apply your own law if you dont have enough interest. There problem is an NH
interest but the Clapper test isnt paying much attention to the forum
At times there will be public policy exceptions to FF&C, but in this case Ct. rejects such by focusing on .
Allowing NH to overlook VT's law would subject to irremediable liability. No real proof that it's
obnoxious to NH's public policy
35 | P a g e
So basically court is saying give preference to other states law if other states interest is greater looks a
lot like comparative impairment
How do you decide which states interest is greater? Court doesnt tell us, but it seems to think it
can do it and does it here.
Alaska Packers Assoc. v. Industrial Acc. Commn (1935) ( agrees to work for CA employer, but in AK; trying to recover
in CA for injury in AK) FFCC does not require Alaska remedy. Alaskas interest is not greater. Must give priority to
another states law if the other states interest is substantially greater.
o P Alien; D CA; K CA; Accident AK; CoL clause AK workers Comp
o CA prohibits contracting around CA jurisdiction for injuries sustained outside of state when employee is resident (or
even non-resident b/c of P&C clause)
o Rigid enforcement of FF&C would lead to absurd result of always applying other state's law whenever it's interested
(works great for false conflicts but flips true conflicts upside down) . . . this was probably the original understanding
of the clause (it would work perfectly in a territorialist system w/ no overlapping jurisdictions)
o Slight presumption that court can apply the law of their forum; Whoever is arguing for foreign law has the burden of
showing upon some rational basis that of the conflicting interests involved those of the foreign states are superior to
those of the forum. Here they say CA law is superior.
o Court says that CA can apply its own law;
Pacific Employers Ins. Co. v. Industrial Acc. Commn (1939) (MA worker injured while working in CA (similar to Clapper).
Opposite from Packers. Now question is whether state of injury can apply its law) CA law gets priority. Case backs
away from Alaska Packers by suggesting FFCC will compel forum to give priority to another states law only if the
forum has no interest.
o P MA; D MA; Injury CA; Work CA; Forum CA
o MA workers comp statute waives right to tort action whether injury is in MA or outside it; CA has its own
workers comp statute
o Under Clapper you would apply MA law maybe you could draw a distinction b/c of the greater distance
o Under Alaska Packers - hard to determine who has the greater interests
o Court says CA can apply its own law (basically they give up on balancing)
Alaska Packers
Pacific Employers
Clapper
P AK
P MA
P - VT
D - CA
D MA
D - VT
K CA
K MA
K - VT
Accident AK
Accident CA
Accident NH
Court start out saying that w/ FFC they will balance, then decide that they cant balance so they give states more discretion.
So basically you have to apply foreign law only if you have no interest at all and foreign state does
S.ct. has basically combined the FFC and the DPC for CoL purposes [KR: this is unfortunate]: Are there significant contacts
or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor
fundamentally unfair
36 | P a g e

The difference between the two is that the DPC isnt about state versus other states, its about individuals and states;
its about limits on states ability to exert their coercive authority over individuals;
In CoL context it comes down to unfair surprise; at time of relevant events, were there contacts b/w the
contacts and this state? If there are no contacts then the state cant say our law determines your rights
o FFC is about state versus state; about relative priority of sister state laws
If you are a territorialist it is easy; in state A if someone comes in and says I have a right under state B,
does state B have to recognize it? Yes
But it gets more complicated when there are overlapping legislative jurisdictions
Courts have adopted minimalist view of FFC (to do otherwise would be a lot of work for the
courts) if the forum has no interest it has to recognize other states laws; if they do have an
interest then they can apply thei own laws
o Just about any kind of interest will be enough to satisfy the FFC; in AK Packers the S.Ct. seems to say that CA has
an interest b/c CA ct. says it has an interest
o Carroll v. Lanza (1955) (KR this is a terrible opinion) here the court says place of accident creates an interest, not
in this case, but sometimes in some other case so thats good enough; so now you have to ask if, in some
hypothetical case similar to the present one, the state can assert an interest
Watson v. Employers Liab. Assur. Corp. (1954) (P injured while using a hair-waving product)
o P LA; D (Toni manufacturer) MA; Forum LA; K (insurance policy) MA/IL; Injury - LA
o K had clause prohibiting direct action against the insurer until after liability of D was established; LA court refuses
to enforce this provision b/c LA has statute permitting direct action and insurer appeals
o Due process violation? Court says no DPC violation b/c there was no unfair surprise b/c you know that youre
ensuring risk relating to a product that is shipped all around the country
This is somewhat circular: now that youve been put on notice there is no unfair notice
Clay v. Sun Ins. (1964) (P is purchaser of insurance living in IL, but moves to FL where property is destroyed)
o Loss FL; K IL; D UK/All over
o K says he has waited too long to sue, but FL says he hasnt
o Court says no problem w/ DPC (and FFC) b/c FL had an interest b/c P was a resident so FL has ample contacts and
it is a floater policy so no unfair surprise
o Clay is different from Wood Bros. v. Dick b/c the policy was geographically localized; not a worldwide floater
o
Convergence treating DP and FFCC Together
Allstate Ins. Co. v. Hague (1981) (stacking case; husband died while riding motorcycle in WI; wife, after death, moved to
MN, where her husband had worked) Choice of MN law is not unconstitutional; it had sufficient contacts. To satisfy
FFCC and DP, a state must have a significant contact or significant aggregation of contacts, creating state interests,
such that choice of its law is neither arbitrary nor fundamentally unfair. (Requirement of contracts making choice of
law neither arbitrary nor fundamentally unfair protects DPC while requirement that contacts create interests satisfies
Pacific Employers understanding of FFCC.)
o P MN; Decedent WI; Accident WI; Other drivers WI; K WI;
o MN coverage on multiple vehicles can be stacked; WI disallows
o MN SCt noted that contacts alone might not be sufficient to mandate MN law but better law prong of Leflar's test
favored MN law (stacking favored by majority of states and best distributes costs). [KR thinks better law is dumb;
no other approach would say that MN law should apply]
o Ct in FN 10 emphasizes that the FF&C test for choice of law is different from its recognition of judgments
application
o for a States substantive law to be selected in a constitutionally permissible manner, that State must have a
significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither
arbitrary nor fundamentally unfair.
37 | P a g e
For DPC you look to see if, at the time of the events, there are contacts to the defendant state so that
defendant isnt surprised
For FFC you have to have an interest; the contacts have to create an interest
o So now, it seems you can rebut unfair surprise on the basis of a hypothetical possibility of an accident in another
state (KR thinks this is stupid; question should be were you unfairly surprised given what actually happened)
o In practical terms what is a sufficient interest? What is a sufficient contact? Allstate now looks questionable b/c it
isnt willing to look skeptically at the contacts/interests
You would think that Allstates expectations would only prove relevant when they are in play, i.e. he was
in MN when the accident actually happened not that b/c he could have had an accident in MN
KR when looking at unfair analysis you should look at what actually happened, not what might have
happened
After Allstate we have basically the same test except that almost anything counts as enough to
prevent unfair surprise and almost anything is a sufficient contact
o Plurality
MN has 3 contacts: Husband worked in MN (fact that he hypothetically could have crashed in MN
commuting to work provides support for MN law); Allstate did business in MN (no unfair surprise) and
policy was continental; 's bona fide move to MN (this would be enough for DPC prong but is enough for
FFC prong). Taken together, these satisfy significant contacts/significant aggregation of contacts test
o Stevens Concurrence: splits the test b/c he believes they protect different interests
Does the FF&C Clause require MN to apply WI law?
FFC shouldnt invalidate a state choice of forum law unless that choice threatens the federal
interest in national unity
In this case, application of MN law was unsound as a matter of conflicts law; however no threat to
national unity ensues from this
Does DPC prevent MN from applying its own law?
DPC only invalidates a state court's choice of law if it were totally arbitrary or fundamentally
unfair (if forum chose its own law that favored residents, dramatically departed from majority rule,
rule unfair on its face). No unfair surprise in this case. Rejects plurality's hypothetical reasoning:
choice of law was okay b/c it doesn't result in unfairness to either litigant, not b/c MN now has an
interest, etc.
o Powell Dissent
Likes plurality's aggregation of contacts test but disagrees in application. The plurality only focused on
contacts, not policy-related contacts.
No one seems to care that accident didn't happen in MN . . . Why? B/c the wide range of possibilities is
what puts persons on notice. This hypothetical thought won't work in FF&C though . . . Have to have an
actual interest there!
o This test allows states to assert their own interest through extraterritoriality and thus entrench themselves . . . a result
FF&C was designed to prevent. Adopting the law of the most appropriate jurisdiction would be how a state could
give FF&C to laws of another state w/out undermining its own ability to apply its law through extraterritoriality
Phillips Petroleum Co. v. Shutts (1985) ( is an oil company that leases mineral rights throughout country in return for
royalties of its profits. Class action suit is brought against for interest due (for interim b/w tentative rise in rates and final
approval))Allstate test is not satisfied here. Probably runs afoul of DPC and FFCC, but DP problem is clearer,
totally unfair surprise. When there are literally no contacts, Constitution can still mean something to prevent
deciding under that law.
o P all 50 states; Named P KS; D DE, PPB OK;
o KS D would be liable for interest on suspended royalties
o Unfair surprise
38 | P a g e
You could say that you were doing business w/ other people in KS, but youre not supposed to litigate a
class action differently than you would a normal action
You could also ask why should KS have the authority to extend its law to our transaction when nothing
about the transaction relates to KS
FFC
Argument is that applying KS law to all claims will make litigation easier in terms of the process
KR that misunderstands how FFC should work
Its about when you can give priority to rights created by your own law as compared to rights
created by other states law
Here it is outside the scope of KS rights; KS law doesnt give e.g. a CA resident any rights
o KS Court applies KS law despite the fact that over 99% of leases and 97% of Ps had no apparent connection w/ KS
o Given KS' lack of interests in claims unrelated to KS, and conflict w/ other jurisdictions like TX, application of KS
law to all is sufficiently arbitrary and unfair. Phillips had no common fund in KS, no res in KS, 's can't
unilaterally choose forum law, etc. so no expectation that KS law would apply
o Court says you cant use hypothetical reasoning (as in Hague) in a class action
o [note] on remand the KS court said that KS law still applies b/c it is substantially the same as other laws; S.Ct.
affirms
Franchise Tax Board v. Hyatt (2003) (P sued CA tax board in NV after moving to NV; CA gave absolute immunity, NV
didnt; NV S.Ct. allowed claim to proceed and S.Ct. upheld)
o Ct acknowledges that it has abandoned balancing for FFC. a State need not substitute the statutes of other states
for its own statutes dealing with a subject matter concerning which it is competent to legislate
Sun Oil Co. v. Wortman (1988)
o Court upheld KS SCt decision to apply KS SoL, explaining that limitations questions were treated as procedural
(and thus governed by forum law) when the Constitution was adopted. Therefore characterization remained
constitutional today
Ferens v. John Deere Co. (199)
o P (PA) injured in PA while using John Deere farm equipment (DE/IL); SoL had expired in PA so he brought suit
MS; jurisdiction was based on the fact that Deere did business in MS; then P transfers back to PA under 1404; PA
ct tried to use their own SoL but S.Ct. reverses forcing court to apply MS SoL
Obligation to Provide a Forum
Must have some reason other than the fact that its foreign to not apply foreign law
Hughes v. Fetter (1951) (Hughes is killed in car accident in IL by negligent . Brings IL cause but in WI court) FFCC
case, presents a right to recover under IL law when WI law does not reach the event. Requires recognition of IL law.
A court needs justification to refuse to enforce foreign rights.
o P WI; D WI; Accident IL; Forum WI
o IL wrongful death statute; WI wrongful death statute only for deaths caused in WI
o Ds allege that WI statute establishes local public policy against WI hearing suits brought under other state's
wrongful death statutes.
o Why cant the court say that there is no claim under WI statute b/c it is limited to accidents in WI?
B/c P had pled IL statute, not the KS statute, so P has a right under IL law FFC allows WI to apply its
law if it has an interest (if its laws reach the transaction); Are there contrary WI laws? No, b/c WI law only
applies to accident in the state
This case is outside the scope of WI law and per FFC you cant refuse to recognize another states law
when your law doesnt apply
39 | P a g e
WI law is about deaths in WI, IL law is about deaths in IL, there is no overlap, so there can't be a conflict. So it
makes no sense to say we're deciding this case under WI law, because WI law doesn't say anything about it.
A court needs some justification to refuse to enforce foreign rights. If contrary local rights exist, that will usually
be an adequate justification, given the minimal requirements of FFCC as interpreted in Pacific Employers. But if
no contrary local rights exist, as in Hughes, then foreign rights must be recognized
Rule
Broderick v. Rosner (1935) (NY passed legislation that made bank stockholders personally liable for bank debts; NY
Superintendent of Bank brought action in NJ against NJ stockholders of failed NY bank)
o Suit was dismissed under NJ statute requiring the joining of certain parties, which in this case was impossible
o S.Ct. said NJ had to entertain the suit regardless of the statute:
A court may not, under the guise of merely affecting the remedy, deny the enforcement of claims
otherwise w/in the protection of the full faith and credit clause, when its courts have general jurisdiction of
the subject matter and the parties.
Wells v. Simonds Abrasive Co. (1953)
o P filed an action in PA that was governed by AL law. PA Ct recognized that claim was governed by AL law but
applied its own SoL, which resulted in the case bineg dismissed
o S Ct upheld; difference b/w this case and Hughes seems to be that here the PA court applies her one-year limitation
to all wrongful death actions wherever they may arise whereas in Hughes the court was uneven w/r/t claims within
and without the state
Tennessee Coal, Iron & R.R. Co. v. George (1914)(George injured while underneath engine due to faulty throttle. Brings suit
for AL cause of action in GA court. AL law provides that it should be heard only in AL courts. Georgia decides it anyway;
argues that GA didn't give FF&C to entire AL statute) Converse of Hughes, with state trying to keep litigation in its
own courts. The AL statute was unconstitutional (FFCC) in limiting its application to AL; it was proper for it to be
applied in GA. FFCC does not command recognition of procedural or venue related restrictions of foreign laws, only
substantive rights.
o SCt suggest that GA may have been required to ignore the provision; Enforcing it would itself be a FFC violation;
AL right to sue is itself entitled to FFC (stems on belief in difference b/w right and remedy) so that the right can't be
denied elsewhere
o If your laws create contrary rights you can enforce your rights; but if you law doesnt create any rights you cant
reject foreign rights just for being foreign (Hughes) and state that creates the right cant say foreign courts cant
enforce the right just b/c theyre foreign (Tennessee Coal)
This wont be true where the right is impossible to separate from the method of enforcement
E.g. VA workers comp requires that you go to the VA accident commission, but here it was any
court of competent jurisdiction
Recognition of Judgments if you have a judgment from one state that is valid and on the merits it must be enforced in
another state b/c of the FFC
Best way to make sense of the cases for FFC state can give priority to local rights as against foreign rights but if
there arent local rights then you cant refuse to recognize foreign rights
Privileges and Immunities Clause

o
o
o
o
More likely to come up with loss-allocating rule then conduct regulating

State has to give rights to out of staters
This is not the 14th Amendment (which gives U.S. citizens some federal rights)
Art. IV is about rights under state law; you live in state A and go to state B, you can claim some rights under state B
law when state can withhold rights from out-of-staters that it gives to locals
40 | P a g e

o
Limits
Only applies to fundamental rights
This is different from DPC fundamental rights; this is more like economic rights, rights, that are
useful to the creation of a national economy
Even if were talking about a right that qualifies, a state can discriminate against nonresidents only where
its reasons are substantial, and the difference in treatment bears a close or substantial relation to those
reasons; this is basically intermediate scrutiny, which can vary a lot depending on the context
Supreme Court of N.H. v. Piper (1985) (Rules of NH Sup. Ct. limit bar admission to state residents. Piper lives just across
border in VT) NH rule limiting bar admission of state residents does violate Privileges and Immunities. A state may
discriminate against nonresidents only where the reasons are substantial and the difference in treatment bears a close
or substantial relation to those reasons
o Court says that right to practice law is a fundamental one important to the national economy (so it falls under the
P&I clause).
o Are there exceptions that might apply?
States can reserve political rights to its residents, but court says a lawyer isnt an officer of state in the
political sense so it wouldnt override the sovereignty of the state
o Is there a substantial relationship to the end to be achieved?
No; the court says that the states justifications arent good enough
o What does this say about CoL in general?
Currie says assume the selfish state, but cases like Piper seem to say you cant always give advantage to
your domiciliaries
Hypothetical Car accident in DE
DE has guest statute
MD has no guest statute defense
forum DE
P
MD
MD
DE
DE
MD
DE
MD
DE
P wins
D wins
P wins (no defense)
D wins
Seems fine to
say statute
unavailable
Same
D
Selfish State IA
P&I + IA (you get DE rights
unless theres a good reason for
you not to
o
Same
Case 3 might be the hard one b/c you are saying that if you were a DE resident you would get a defense;
o Here the justification will be that we are deferring to your home law
o Can you distinguish b/w deferring to MD laws and opportunistic disadvantaging?
In general it will make sense to say that a state is deferring if it does so by giving priority to
foreign states law, rather than simply by withholding rights under its own law
Austin v. New Hampshire (p. 373)
No income tax if you live in NH
What if you live in MA but work in NH; do you have to pay income tax to NH on
that income? NH says yes, which MA said was unfair
o NH would say were just going what MA wants, which is for you to get
taxed
41 | P a g e
B.
This is hardly believable (might be more believable if NH gave

MA the money) and court rejects it
Looking back at the hypo can you distinguish cases 1 and 3 when it comes to P&I + IA?
You can say withholding benefits of DE statute benefits DE party in case 3 but not in
case 1 maybe enough
Argument that we are just deferring to the result under MD law
o KR - You can distinguish b/w deferring to the result under another states
law and opportunistic disadvantaging is to ask is there actually a result
under the other states law to which you are deferring
What does MD say in case 3 it says nothing; there is no MD
cause of action; MD doesnt give DE P that was injured in DE a
cause of action just b/c D is from MD (MD tort law it designed to
deter accidents in MD and protect MD domiciliaries)
In case 1 there is a result under MD law b/c you have an MD P; so
there are rights created under MD law to which DE can say they
are deferring
o If you take Austin and Piper seriously it should be that you cant say our rights are for our residents
alone and that if you come here you cant claim rights under our laws
This doesnt usually happen b/c the court will usually say there is a deterrence aspect and so
out of staters can invoke our statute for accidents occurring in our state
Blake v. McClung (1898)
o Corporations arent citizens w/in the privileges and immunities clause; this is still good law
Nor does the P&I clause protect alients or American citizens who are not citizens of any state
STATE-FEDERAL CONFLICTS
Erie R.R. Co. v. Tomkins (1938) (injured by passing train; licensee or trespasser?)
o P PA; D PA, NY, Inc.; Acc PA; Forum NY Fed
o PA state court would say trespasser gross negligence to recover; NY fed court would say licensee simple
negligence to recover
o At this point we are still largely territorial so if it was a question b/w NY state law and PA state law it would be PA
state law; question is whether this is local law or general law; Tomkins says general law
o Problems w/ Swift:
Practical: forum shopping
Statutory interpretation problem what does law of the several states mean?; under Swift it was
interpreted as statutes only
Constitutional problem no federal law making authority for common law subjects; D. Currie - you only
have interest in uniformity in things like admiralty law, courts sitting in diversity are only intended to
provide a neutral forum
Story thought that the courts wouldnt be creating common law b/ct there was this omnipresent
common law; this is rejected all law must come from a sovereign; Story was hoping that states
would defer to fed courts and uniformity would ensue
o So now under diversity jurisdiction you are deciding a case under state law (and this now includes more than just
statutes) this sounds like choice of law and has the same questions
Youre going to apply substantive law from another sovereign (state), but your own procedure; how do you
make the distinction? (Eerie analysis); Renvoi question (Klaxon)
42 | P a g e
Guaranty Trust Co. of New York v. York (1945) (York brings diversity action under state law that would be barred by state
SoL if brought in state court)
o Fed court sitting in diversity cant afford recovery if the right to recover is made unavailable by the state nor can it
substantially affect the enforcement of the right as given by the states; you cant get around this by saying the SoL is
merely procedural;
o Question is whether state statute concerns manner and means by which a right to recover is enforced, or whether
such statutory limitation is a matter of substance i.e. does it significantly affect the result
Outcome in state court and fed court should be substantially the same
o Note for state v. state choice of law SoL are procedural
o Ragan v. Merchants Transfer & Warehouse Co. (1949) state law applies to determine when statute was tolled
o Woods v. Interstate Realty Co. (1949) Corp that didnt qualify to do business in MS couldnt maintain diversity suit
in MS fed court if its failure to qualify barred it from suing in state courts
Bryd v. Blue Ridge Rural Elec. Co-op., Inc. (1958) (is statutory employee decided by judge or jury? State says judge)
o Court admits that decision b/w judge/jury might sometimes be outcome determinative, but outcome
determinativeness must be balanced with rights and obligations of the federal system (here, 7 th Amend.);
countervailing considerations [looks like balancing]
o Here there is strong policy against disrupting federal jury/judge relationship w/ weak showing that it is outcome
determinative
o You can substitute fed law for state law when you are talking about the mode of enforcing a right, but not if it is
bound up in the rights and obligations of the parties
Hanna v. Plumer (1965) (service of process left w/ wife; fine by Fed law, but not by Mass. law)
o Rules Enabling Act S.Ct. shall have power to prescribe, by general rules, forms of process, etc. of district courts of
US in civil actions . . . such rules shall not abridge, enlarge or modify any substantive right and shall preserve right
to trial by jury.
o Erie doesnt apply here; where there is an FRCP on point that is the end of the inquiry, even if it conflicts with a
state law that is outcome determinative; only question is whether it is w/in the power of the Rules Enabling Act
o You cant however, use an FRCP to displace a state rule that is bound up with the rights and obligations of the
parties (at least this is what KR says should be the case)
o Harlan Concurrence (KR) Rules Enabling Act says you should be doing something more like balancing even if
youve got a FRCP on point b/c thats what Congress wants
Bound up
Outcome
w/ rights &
---------------------Procedure
Substance ------------------------------- determinative
obligations
(York)
(Bryd)
There is an argument that outcome-determinative line is a policy line whereas the bound up with rights and obligations line is
a constitutional requirement
Walker v. Armco Steel Corp. (1980) (files complaint before limitation period expires but serves D after; what stops SoL?)
o OK statute requires service; FRCP says action is commenced day of filing
While state law is clear, FRCP 3 is less clear b/c it doesnt say that filing an action tolls the limitation
period
o This is a puzzling case; maybe there's no collision b/w state law and FRCP, but federal CL has said filing complaint
tolls SoL, and this is an interpretation of the rule and the rules aren't supposed to mean different things in diversity
cases and federal question cases; so why are we treating federal common law differently than a federal rule?
Court says if you're dealing w/ federal CL, think about relative interests - it's doing a priority analysis
KR the answer is that the court thinks:
Scope
Priority
43 | P a g e

Text
Supremacy Clause
Court makes
Court decides
Rule 3
Federal Common Law
o Court says this case in indistinguishable from Ragan; Hanna distinguished Ragan, didnt overrule it
o Here court says there is no direct conflict b/w FRCP and state law, so Hanna analysis doesnt apply
Burlington Northern Ry. V. Woods (1987) (damages for unsuccessful appeals) ct says RCAP 38 governs b/c it is broad
enough and clearly conflicts with state law
Stewart Organization, Inc. v. Ricoh (1988) (application of 1404(a) forum non conveniens) K had forum selection clause
but claim brought in AL fed court and AL state law disfavored forum selection clauses. S.Ct. says 1404 governs when
applying congressional statute, first question is whether it is broad enough to control the issue; if it is thats the end of the
issue. In determining whether it is broad enough it only needs to be broad enough to govern the issue (broad reading of
direct collision language, at least when it comes to statutes p. 727)
Gasperini v. Center for Humanities, Inc. (1996)(review of jury award: shocks the conscience/ materially deviates; slides)
o This is the same as Walker; there is a Fed rule that is close, but doesnt explicitly decide it fed CL does so court
can decide how this should be reconciled w/ inconsistent state law
o NY Appellate review uses deviates materially standard; fed appellate rule: shocks the conscience
o Fed rule close but doesn't explicitly decide it so fed common law would decide it and so court gets to decide how
this is reconciled w/ state law
o When you're dealing w/ a rule the priority analysis has already been done; when you're dealing w/ federal common
law it is up to the courts to decide priority
o Here it would be outcome determinative, but there are countervailing considerations; court says both can be
balanced by having trial judge review w/ deviates materially standard
Semtek International Inc. v. Lockheed Martin Corp. (2001)
o P sues in fed d.ct. in CA under diversity; dismissed w/ prejudice under CA's SoL; P refiles in MD but MD
dismisses for res judicata; but argues that CA wouldn't have given it claim preclusive effect. MD said claimpreclusiveness was a matter of federal law
o Preclusion seems substantive for Erie purposes b/c it is outcome determinative
o Preclusion tangent
If NY ct was deciding a case under NY law then NY law would determine preclusive effect of judgment
What if NY court was deciding case under PA law? Still going to be NY law
Now the question is how do we think about Fed court that is deciding a case under NY law?
For policy reasons we want NY preclusion law, but this isnt what Semtek says
Policy reasons say NY law b/c we want Fed court and state court to be the same
Semtek says federal law
o It has to be federal law otherwise states would have the ability to destroy the claimpreclusive effect of federal judgments, but federal law looks like state law
Preclusive effect is question of federal law, but the content will be the same as that of the state in
which the court sits (unless state does something really weird); this is basically incorporation of
state law
Klaxon Co. v. Stentor Elec. Mfg. Co. (1941) (CoL; prejudgment interest)
o P NY; D DE; Forum Fed DE; K -NY
o Case litigated in fed ct. in DE; problem is that Erie doesn't tell us which state's substantive law applies; just as Erie
forbids federal creation of general CL, so too it forbids generation of conflicts rules other than those of state in
which it sits
o Are CoL rules substantive for Erie purposes? Yes
o Is prejudgment interest substantive or procedural?
44 | P a g e
Lower courts said substantive b/c it was the better view of the law w/o regard to DE law; cites 1R: place
of performance for K
S.Ct. says this is wrong; they shouldnt go with what they think is the better view, they should follow the
law of the state in which they sit
For one thing it is outcome determinative; does it fall on the substance side of the Byrd line? Is
there a federal interest at stake?
o KR - CoL rules fall to the left of the Byrd line - to the extent they are about the scope of
the state's law they define parties' rights and obligations. Therefore fed courts must
follow them; policy considerations are therefore irrelevant we dont want fed courts
making CoL rules b/c then we get forum shopping, etc.
o What does this mean for state courts if you follow KRs argument?
You could make the same argument w/r/t state courts that you did for fed courts having to apply state CoL
rules you must accept renvoi
Does this create an endless cycle? No. Foreign state CoL rules just help determine scope; foreign state CoL
doesn't say anything about home state CoL rules; you use each states CoL rules to determine their own
interest and no other state's interest
English v. General Electric Co. (1990)(disgruntled lab tech; Nuclear regulation; unlawful discharge)
o Facts English was a lab tech at nuclear-fuels production facility operated by GE; E complained to management &
NRC about violations of nuclear-safety standards; disciplined & fired when she didnt clean up a spill; E files claim
w/ Sec. Labor for violating Energy Reorganization Act, but dismissed as untimely; she then files diversity action in
district court for wrongful discharge and emotional distress; District ct said dismissed saying it was preempted by
specific sections of the ERA (rejected GEs arg that field of nuclear safety is preempted)
o Issue: is state-law tort claim pre-empted?
o Holding no preemption
Three ways that state law can be pre-empted
Express pre-emption: Congress makes its intent known through explicit statutory language
Pre-empted where state law regulates conduct in a field that Congress intended Federal Govt to
occupy exclusively
o Can be inferred from a scheme of federal regulation so pervasive as to make
reasonable the inference that Congress left no room for the States to supplement it, of
where an Act of Congress touches a field in which the federal interest is so dominant
that the federal system will be assumed to preclude enforcement of state laws on the same
subject. [So 2 ways: dominant federal interest (e.g. foreign affairs) and comprehensive
federal regulation (most of the time state law fills in the gaps of state law, but sometimes
fed law has no gaps]
o Where the field is one that has been traditionally occupied by the states, the intention of
Congress to supersede must be clear and manifest
Pre-empted to the extent that state law conflicts w/ federal law
o If you dont have an obvious, direct conflict (in which case fed law preempts) you have
to ask would enforcement of the state law stand as an obstacle to the full realization of
the congressional purposes
Looks like interest analaysis!
Here theres no express pre-emption;
W/r/t field preemption the court had previously found nuclear safety to be subject to field preemption
except where powers were expressly ceded to the states but court says there is no clear and manifest
intent by Congress to pre-empt all state tort laws that traditionally been available; at the same time, state
regulation that implicated radiological safety aspects involved in the operation of a nuclear facility will be
45 | P a g e
preempted; e.g. minimum wage law doesnt implicate safety aspects there must be a direct and substantial
effect; no field pre-emption here
Implied conflict pre-emption
Ordinarily existence of fed regulatory/enforcement scheme isnt enough to imply pre-emption of
state remedies
District court had said that 210(g) saying that retaliation section doesnt apply if employee
deliberately violates safety standard should be read as to preclude all relief; court disagrees
District court also said that absence of ability to award exemplary damages under ERA shows
congressional intent to bar state action that permits such an award; court disagrees
Lastly, D.Ct. said that short time-frames under ERA preclude state claim b/c otherwise there
would be less incentive to file under ERA; court doesnt think this is a big problem
Geier v. American Honda Motor Co. (2000) (design defect not to have drivers side airbag; Motor vehicle safety act)
o P injured when car hit tree; sued saying design defect not to have a drivers side airbag; H said preempted vy
NMVSA and Federal Motor Vehicle Safety Standard 208
o 208 said 10% of cars must have passive restraints (airbags or auto-lock seatbelts); P argues this is a minimum and
not inconsistent w/ state tort rule providing that absence of an airbag was defect; S.Ct. disagrees state tort rule
effectively requiring airbags would have presented an obstacle to the variety and mix of devices and the gradual
introduction of airbags that the federal regulations sought
Sprietsma v. Mercury Marine (2002) (propeller guard on boat; design defect; Federal Boat Safety Act)
o Husband sues when wife is killed falling from boat and hitting outboard motor; sued under IL tort law saying lack of
propeller guard made product unreasonably dangerous; D said design defect preempted by Fed Boat Safety Act
o Preemption argument relied on the fact that the Coast Guard was empowered to issue safety standards under the act,
and had considered and rejected a propeller guard requirement and also that there were federal interests in
uniformity; S.Ct. rejected both theories
Federal Law in State Court (reverse Erie)

These cases mostly about, when Federal law trumps state law, how far can states go in using procedural law to place limits on
substantive federal law.
Where substantive and procedural law overlap, however, an asymmetry arises because of the Supremacy Clause
In Erie federal procedural rule trumps contrary state law, even if that law is substantive
In reverse-Erie, state procedural laws that undermine federal substantive interests will be invalidated.
In both Erie and reverse-Erie, state law will be displaced if it conflicts with federal law. The question is how to decide
when such a conflict occurs
What is required is an adverse impact not on the particular P but on the federal interest underlying his claim
Testa v. Katt (1947) (selling car above ceiling price)Cant refuse to enforce substantive federal rights, or treat them as
foreign law
o sells car above ceiling price. Federal Emerg. Price Control Act allows to recover 3x the overcharge plus
attorneys fee. State court decided that this statute was penal (trad'l escape device) and couldn't be enforced in the
state. "A state need not enforce the penal laws of a gov't which is foreign in the int'l sense." Says that U.S. is foreign
to the state
46 | P a g e

o
C.
S.Ct. rejects idea that the state court has no more obligation to enforce a valid penal law of the U.S. than it has to
enforce a penal law of another state or a foreign country; state courts dont have the same relation to the U.S that
they do to foreign countries
o When congress exercises its powers under the constitution it speaks for all people and all the states and so
establishes policy for all and must be respected
Howlett v. Rose (1990) FL is violating Supremacy Clause. States cannot refuse to hear federal claims without a
valid excuse, meaning something like jurisdictional limitation that affects local claims as well as federal. Contrary
substantive state law will never constitute a valid excuse.
o 1983 creates a remedy for violation of federal rights committed by persons acting under color of state law; State
courts and fed courts have jurisdiction over 1983 claims; question is whether state-law defense of sovereign
immunity is available to school board otherwise subject to suit in FL court even though such a defense wouldnt be
available if the action had been brought in a federal forum. Here a student is saying an assistant principal had made
an illegal search of his care in violation of the 4th and 14th; FL state law dismissed saying when 1983 claim is
brought in state court the state hasnt waived sovereign immunity defense
o 1983 comes from section 5 of the 14th amendment so congress can overcome state sovereign immunity (as
opposed to where Congress is using their commerce powers where they cant)
o What could FL be saying?
State defense prevails over federal claim you can never do this (unless you were talking about state
sovereign immunity in a commerce clause claim)
State court doesnt have jurisdiction; the idea is that sovereign immunity isnt a defense that lets you win
on the merits, but rather a limit on jurisdiction such that you cant even bring a claim
You can do this w/ a valid fed excuse (if it doesnt violate federal law) How do you decide this?
o Hard to do; you could limit by jurisdiction e.g. if you say you can't bring 1983 claim in
traffic court, but if it's a court of general jurisdiction like it is here then it's probably not a
valid excuse; has to be neutral rule and valid
o Hughes v. Federrer (obligation to provide a forum; wont entertain foreign claim) - if
you disagree that's ok, but if all you have is a distaste for foreign claims isn't enough
o Here court is saying distaste isn't enough, nor is policy preference, nor is contrary state
law; basically only valid excuse is being a court of limited jurisdiction
o Here FL court is violating the Supremacy Clause
Dice v. Akron, Canton & Youngstown R.R. (1952)
o brings action under Fed. Employer's Liability Act in state court for negligence when engine jumped track. tries
state law defense that P had signed documents that settled the claim, while P says D misled him about the contents
of what he signed; state court finds that P was guilty of supine negligence for not reading the docs carefully and
enters JNOV for D; question is whether fed law controls for the defense in which case verdict would be upheld as
long as there was evidence to support a finding of fraud
o Federal law controls and allowing state law defenses would allow states to easily defeat federal measures; here, right
to a jury to determine the question of fraud is too substantial a part of the federal rights created under the Act to be
characterized as a mere local rule of procedure
INTERNATIONAL CONFLICTS
United States v. Yunis (D.D.C. 1988) (highjacking)

o Several American passengers were on board a Jordanian aircraft that was highjacked in Lebanon. The US
prosecuted the highjacker under the Hostage Taking Act and Destruction of Aircraft Act; only nexus to the U.S. is
that some of the passengers were Americans; Yunis moves to dismiss for lack of jurisdiction he is saying
international law places limits on legislative scope of U.S. laws
47 | P a g e

o
Issue: whether a US federal court has jurisdiction to prosecute a foreign national for crimes committed in foreign
airspace and on foreign soil?
o Holding
Five traditional bases of jurisdiction over extra-territorial crimes under international law
Territorial based on where offense is committed
National based on nationality of offender
Protective based on whether national interest is injured
Universal jurisdiction conferred on any forum that obtains physical custody of the perpetrator of
certain offenses considered particularly heinous and harmful to humanist
o Crimes that fall under this are often a matter of international conventions/treaties; that is
the case here w/r/t piracy and hostages
Passive personal based on nationality of the victim
o Most controversial, but international community has explicitly approved of the principle
as a basis for jurisdiction over hostage takers; increasingly accepted when applied to
terrorists and other organized attacks on states nationals by reason of their nationality; so
theres enough here
Limits on Legislative Jurisdiction in International Law
o Used to be that legislative jurisdiction was defined in territorial terms; pathbreaking case was S.S. Lotus
o Territorial principle is the most common basis for exercising jurisdiction
Effects doctrine is generally treated as an aspect of this whereby a state may regulate activity occurring
outside the state if that activity has or is intended to have effects within it
o Nationality Principle most widely accepted alternative basis for exercising legislative jurisdiction
o Protective principle has been strictly construed to only cover offenses directed against the security of the state or
other offenses threatening the integrity of governmental functions that are generally recognized as crimes by
developed legal systems (e.g. spying); tends to be read narrowly
Different from effects principle in that effects principle permits a state to protect private interests from
actual injury whereas protective principle allows a nation to protect governmental interests from the threat
of harm
o Passive Personality Principle least justifiable
o Universality principle certain acts are dangerous to the international community as a whole wherever they occur;
traditionally applied to piracy, has been extended to air piracy and some forms of international terrorism
o Third Restatement p. 793
402 when state can assert jurisdiction
403 court should apply balancing test when another nation could also apply its law; p. 809
o If Congress passes legislation contrary to public international law, US courts must disregard international law;
doesnt make international law irrelevant b/c courts generally presume that Congress doesnt intend to run afoul of
international law unless it has clearly said so
EEOC v. Arabian American Oil Co. (1991)
o P sues under Title VII and state law for being discharged by an American employer abroad on the basis of his
national origin, race and religion. ARAMCO says no jurisdiction b/c Title VII doesnt extend to US citizens
employed abroad by American employers
o Issue: Whether Congress has intended Title VII to apply to US citizens employed abroad by American companies?
(Default rule of construction is that lacking clear statement by Congress, laws apply only domestically)
o Holding
Look to see whether language in the relevant act gives any indication of a congressional purpose to extend
its coverage beyond places over which the U.S. has sovereignty or has some measure of legislative
control.; presume domestic unless there is affirmative intention of congress clearly expressed
48 | P a g e
Here court doesnt find affirmative congressional intent; P had argued that this was similar to Lanham Act
which was found to apply extra-territorially in Steele v. Bulova Watch (1952), but there unlawful conduct
had effects in the U.S., the Act had a broad jurisdictional grant, and its reach included all commerce which
may lawfully be regulated by Congress
Also rejects argument that b/c EEOC says it applies the courts should defer
o Note when congress amended Title VII in 1991 it overturned this and made explicit that Title VII does apply to
relations b/w American employers and employees abroad
Moderation in the Extraterritorial Application of U.S. law
o Timberlane Lumber v. Bank of America court moderates effects problems by recognizing that deference to foreign
law may sometimes be appropriate despite effects on the U.S.
49 | P a g e

Conflict of Laws Outline

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Conflict of Laws Outline

Uploaded by

Copyright:

Available Formats

Downloaded From OutlineDepot.

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

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

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

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

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

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

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

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

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

Conflicts of Law Outline

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

Slavery is prohibited (fugitives

For status issues, apply the law of

Conflicts of Law Outline

THE TRADITIONAL APPROACH

Still followed in about 18 states

Doesnt allow forum shopping; uniformity

Sometimes it is arbitrary and only takes into account

Conflicts of Law Outline

Traditional approach for contracts

RECURRING PRACTICAL ISSUES

Conflicts of Law Outline

Conflicts of Law Outline

Widow only gets half of estate

Widow gets whole estate

White domiciled in PA. Short presence there was enough

Conflicts of Law Outline

Think about in terms of scope and priority

Conflicts of Law Outline

Conflicts of Law Outline

Conflicts of Law Outline

Traditional approach would say that SoL is procedural

Conflicts of Law Outline

Cant dispossess heirs from certain

Conflicts of Law Outline

Law of the situs (entire law,

Internal law of domicile governs

Definitely an escape device

Conflicts of Law Outline

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

Conflicts of Law Outline

PENAL AND TAX LAW

PLEADING AND PROVING FOREIGN LAW

Conflicts of Law Outline

PARTY AUTONOMY AND STATUTORY SOLUTIONS

Conflicts of Law Outline

Conflicts of Law Outline

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

Conflicts of Law Outline

Marek v. Chesny (1985)

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

Conflicts of Law Outline

Conflicts of Law Outline

Conflicts of Law Outline

Conflicts of Law Outline

Unprovided for Case

Conflicts of Law Outline

Mrs. Erwin has no cause of action under WA law

Resolving True Conflicts

Conflicts of Law Outline

Conflicts of Law Outline

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