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Conflicts of Law
Rutgers University, Newark School of Law
Sclar, Diana

CONFLICT OF LAWS

1.Chapter 1–THE TRADITIONAL APPROACH TO CHOICE OF LAW

A. SECTION 1. TRADITIONAL THEORY: A SURVEY OF JURISDICTION SELECTING RULES

i. A SHORT HISTORY OF CHOICE OF LAW 2- 5
1. The laws of each state have force within the limits of that government and bind all subject to it, but not beyond
2. All persons within the limits of a government, whether they live there permanently or temporarily are deemed to be subjects thereof.
3. Sovereigns will so act by way of comity that rights acquired within the limits of a government retain their force everywhere so far as they do not cause prejudice to the power or rights of such government or its subjects.
a. Ulrich Huber.
4. Justice Story Approach (1834)
a. Borrowed Huber’s Maxims
5. Joseph Beale
a. Replaced “comity” with a notion of “vested rights”
b. Synonymous with the “traditional approach”
6. Brainerd Currie 1950’s-60’s
a. Governmental interest analysis

ii. ALABAMA GREAT SOUTHERN R.R. CO. v. CARROLL 6- 9
1. Alabama Great Southern RR v. Carroll (AL, 1892): P is citizen of AL; D is employer and also AL corporation. P was brakeman on trains, injured when link broke and injury occurs – MS. Evidence was that link was already defectively inspected in AL.
2. P has case for recover under Employer’s liability act in Al, but no law in MS. No cause of action (negligence of fellow servants) there.
3. P can’t use AL for recovery b/c injury occurred in MS; cause of action arose in MS. MS doesn’t have employer’s liability act, so P’s out of luck.
4. AL could create cause of action between AL employee and AL employer – amend the employer’s liability act to put in a choice of law provision; probably constitutional. But they didn’t, so P can’t recover from MS injury.
5. P made the argument that this is a contracts case and the laws of the place of contract Al, should govern. Court denied this argument.

iii. TRADITIONAL CHOICE OF LAW THEORY: Notes (1)-(9) 9-14
1. Torts: Common-law rule for torts is that the law of the place of the injury governs.
a. The last act necessary to complete the tort, where that was completed is the place of the tort.
2. Contracts: Common-law rule for torts is that the law of the place of contract governs.
a. Capacity to contract-the law of the person’s domicile.
3. Property: The place of the real-property governs.

iv. THE PLACE OF WRONG: Notes (1)-(8) 14-17

v. MILLIKEN v. PRATT 18-21

1. Mass-forum. Issue is what law governs capacity to contract? Place where making of the K is where it is deemed to be done. Unilateral-commencement of performance acts as acceptance of K, therefore performance given is where K is said to be done. Case demonstrates difficulty in localizing exact place of K.
2. Substantive law
3. Mass: W cannot enter into K (K invalid)
4. Maine: W capable of K (K valid)
5. Conflicts rule: lex loci contractus: defined as law of place of last act necessary to make a binding K
6. Result: Court assumes a unilateral contract, concluded when the promises (Millikens) acted upon the promisor’s (Mrs. Pratt’s) promise; K thus concluded in Maine and valid. Mass. had changed law in the interim and under current Mass law k would be valid. If it was bilateral K-then Pratt in Mass could have said I will give you $10 for flour, Milliken in Maine could say ok. Then this would be a valid K made in Maine. However, it could also be made in Mass: Pratt said how much for flour, Milliken says $10 and then Pratt says sold. Then the K would be deemed to be made in Mass and contract would be invalid.

vi. THE PLACE OF CONTRACTING: Notes (1)-(9) 21-26
1. Restatement of Conflicts of Law on Contracts
a. Law governing validity of contract; the law of the place of contracting determines the validity and effect of a promise with respect—Page 21
2. Two main issues:
a. issue of validity governed by the place of making
b. issue of performance (and excuses) governed by law of the place of performance.
c. Complication: contract-family law distinction (capacity issues).
d. 1st Restatement of Conflicts:
e. law of the forum decides as preliminary question of which state questions arising from formation of Ks are determined.
f. Determine place of principle events which results in the K.
g. Formal K: place of K is where delivery is made.
h. By mail: where document is posted/received by carrier.
i.Informal/Unilateral K:
j.Where event takes place which makes the promise binding.
k. Informal/Bilateral K:
l.Place of contracting is where second promise is made in consideration of the first promise.

vii. IN RE BARRIE’S ESTATE 26-28
1. lived in IL, made will leaving property to four people; stocks & bonds in IL and land in Iowa. Dies in IL. Conflict: when they get the will, has VOID written across it in her writing. Does this void the will?
2. first case heard in IL: says will is revoked.
3. Second case in Iowa: will is valid. Didn’t gi

pled or proved and it seems it does not recognize respondeat superior.
4. Conflicts rule: Lex loci delicti points to Saudi law. P does not try to plead Saudi law b/c he can’t understand it and also b/c it hurts his case and he would lose.
5. D’s conduct-did not plead foreign law b/c it assumed that forum law was the same as foreign law b/c no one proved otherwise. D dropped ball by not proving that Saudi law would not recognize respondeat superior.
6. P argues that Saudi law was uncivilized and court did not buy this b/c it did not want to declare that the whole country’s laws were uncivilized.
7. TC did not abuse its discretion by failing to take judicial notice of Saudi law. Court rejected P’s plea to apply NY law because of the presumption/fiction that the 2 are identical because (1) it was unrealistic in this case and (2) P did not prove that Saudi Arabia had not law or that it was “uncivilized”.
8. Result here is different than Geller b/c of a shift in mindset and court there had to come to a decision, whereas here the court does not have to maintain the action. If P bears burden of proof and can’t maintain case-case cannot go forward.
9. Maxim that court knows the law-has ability to apply the law and this is regime under we currently operate w/r/t foreign law

ii. NOTICE AND PROOF OF FOREIGN LAW: Notes (1)-(5) 87-90
1. The issue above is who has to prove foreign law.
a. Does the Plaintiff bringing the suit have to prove that there is a cause of action under Saudi law, or
b. Does the Defendant have to show that the forum law does not apply.
c. Some courts say that the person who wants to benefit should plead it, just as they would plead a defense, this would shift the burden to the defendant in this case.
d. Kramer—These cases whould be treated no differently than domestic cases, obligation of the P to point to a law that creates a cause of action for P.
e. States are divided.

C. SECTION 2. TRADITIONAL PRACTICE: A SURVEY OF ESCAPE DEVICES