Conflict of Laws
Professor Jimenez
Fall 2011
Four possible goals of Conflict of Laws (Possible exam quest.-What should be the C.O.L. approach, or what should “drive” the C.O.L.); OR Prosser view: Conflict of laws a “dismal swamp”
a. Uniformity
b. Predictability
c. Certainty
d. Ease of application
e. Policy Conflicts: Trad: source of choice of law norms? Multilateralism v. unilateralsim; domiciliary v territorial (personal connection or territorial location?); gov interest and public policy
I. Traditional Approaches
A. Torts
Carroll Approach: 1st Rest Approach:
1st step: Characterize the claim
2nd step: Decide what the decisive event it
3rd Step: Apply the law of the state where the decisive event occurred (territorial principle)
1. Nonintentional Torts
Rule: The law of the place of injury will be applied.
A. Alabama Great Southern Railroad v. Carroll – personal injury suit for negligence filed in AL. Injury in Miss. Miss had fellow servant rule, AL did not. P arguing AL law applies, D arguing Miss law applies that would not allow for recovery. For AL to render judgement for P, P must be entitled to recover under the laws of the place where the injury was received (Miss).
i. Transitory C/A – the C/A will accompany the P anywhere it goes and they can bring suit anywhere where there is SMJ and PJ
ii. Governing merit law based on the state where the injury occurred.
B. First Rest: §377:
“The place of wrong is the state where the last event necessary to make an actor liable for an alleged tort takes place.”
2. Intentional Torts
Rule: With intentional torts, the place where the tortious conduct occurred will be considered where the tort occurred (not where the tort/injury is felt by P)
A. Marra v. Bushee – suit for alienation of affection. Husband leaves wife and runs off to VT. Under merit law of Vermont, c/a allowed could go forward, under law of NY, it couldn’t.
i. Traditionally, under 1st Rest, the law of the state where the injury occurred governed the COA
ii. Neg torts are usually compensatory in nature, and with intentional torts, compensation is designed to punish and deter– so apply the law of the place of the conduct, where consortium follows alienated spouse, that's where injury occurred
iii. here distinction btw neg tort and intentional where intentional harm is to a relationship and not a person physically. (Ct draws distinction to find 'just result')
B. First Rest §406
“Rights incidental to RELATIVE STATUS [like consortium above] are determined by the law of the state where the person in whom the right is asserted is at the time when the right is alleged to have been violated.” (where conduct occurred); can square w/ Alabama: both “place of injury” but here not place of marital domicile or wife locale but where husband “lured away,” for “conflict purposes” that is defined as place of injury
B. Contracts
Rule 1: Generally apply law of place of contracting (lex loci contractus) BUT When a contract is entered into in one state, but is to be performed in another, the rules of the state of performance control. (Place of performance controls/Parties' Intent Controls)
Rule 2: If Acceptance by telephone, apply law of where words of acceptance are spoken.
Rule 3: If Acceptance in person, law applies where the words are heard.
Rule 4: If Acceptance by mail, law applies where the acceptance is posted or given to the carrier. (state where message of acceptance is sent from)
A. Poole v. Perkins – VA forum; Contract made in TN, but note was payable in VA. In TN, contracts made by married women were voidable; defense of coverture. D wants TN law, P wants VA (to make P pay)
i. So what law is applied with coverture issue?
-Prof Raleigh Minor – law to be applied is the state where the K was made
-Prof John Minor – law of the domicile ought to govern – civil law; where K is made, UNLESS it is to be performed in another state, and then that law – common law.
ii. Ct adopts John Minor – not hospitable to the defense of coverture; married woman could have avoided coverture in many ways (distinction btw mandatory law which you can't do away w/ and elective K law which parties can vary by agreement); K to be performed in VA which allows such K so their law applies
iii. Predictability – if VA is willing to accept this then we have predictability, consistency, ease of application; parties intent will determine choice of law (flexible approach)
B. Linn v. Employers Reinsurance Corp. – Conflict of “space and time” Forum Pa. Negotiations occurred in NY; agent had to get approval from MO headquarters. Law of the state where D placed call to P should control (unknown in case so remanded). Choice of Law problem: if under NY law, SOF voids K; under PA is not void.
Rule: If by telephone, law applies where words of acceptance are spoken.
i. Choice of law issues do not come up to the court unless attys raise them.
ii. Can cause problems – what if 2 domiciliaries nego K and plan to perform in one state, yet one of the dom make a phone call from another state to accept? If ct applies Linn rule, then the state where call made will have to apply.
-possibly ignores many other things that need to be taken into account with a K.
C. First Rest 311: sum and substance
-the forum is to ascertain under the general law of K, where the event necessary to make a binding obligation occurs, and then look to the local law of that forum to decide if there is a K (a binding obligation)
C. Domicile: place where person has settled connection for legal purposes, home or place assigned by law
Rule 1: The law of the state in which a decedent was domiciled at the time of his death will control the distribution of his estate.
Rule 2: Whether a person is a domiciliary of a state will be determined by the law of that persons residence.
A. White v. Tenant – Action to have estate admin distribution and set w/ laws of PA (WV forum), decedent in process of moving when dies. Moving from W. VA to Penn. Ct held Penn was decedent domicile (belongings all moved to Penn, sold house in W. VA shows intent to leave PA and make WV new domicile)
i. Merit issue – if one dies intestate and the ques is the distribution of the decedents property, which law is going to govern? The state of the decedents domicile will determine the distribution of the estate
ii. Domicile: Must have residency + the intent to remain indefinitely.
a. A physical presence of some type
b. An intent of some type to make new dwelling place home
-1st Rest Defines as: Where a person has settled connection for certain legal purposes, wither b/c his HOME is there or b/c that place was assigned to him by law.
-Must have a home and the intent to remain – when you have these, your domicile is instant.
-once you have a domicile, you don’t lose it, even if absent for a period of time, until you acquire a new domicile.
iii. Appears to be a De Novo standard of review – looking at all the facts.
B. Rodriguez Diaz v. Sierra Martinez – P received injuries in car accident in Puerto Rico and went to NY for treatment after claiming malpractice of two hospitals in PR, and filed suit in PR. Claiming he was a citizen of NY so was an adult by NY law. (under PR law he would be minor and unable to establish intent to new domicile)
i. Whether a person is a domiciliary of a state will be determined by the law of that persons residence.
ii. Main question is whether domicile of P means diversity of citizenship exists – so must apply federal common law, NOT conflict analysis
iii. PR interests are still protected – Klaxon is designed to instruct a federal ct to choose b/t differing state laws in a diversity case – but we haven’t even gotten to that point yet, we must first decide if there is diversity, which requires knowing domicile, Fed CL determines on what is citizenship necessary for diversity under 1332a; not a choice of law question where fed interest paramount in I of access to fed district court by litigant, fed cl to promote access; “reasonable” and just result (characterization of domicile question by ct to affect result?)
iv. PR is considered a state for purposes of 1332 Diversity Jurisdiction.
1. Dissent: This is just issue of PR law, state interest paramount in deciding issues of capacity (maj sees as I of citizenship under 1332)
D. Marriage
Rule: Absent a statute in the state of domiciliary not permitting certain marriages, the law of the state where the marriage was celebrated shall be applied.
A. In re May’s Estate – W and H married in RI, lived in NY; were uncle and niece, jewish. NY law did not permit the marriage of aunts and uncles = incest. H wanted to administer her estate, daughter was arguing he couldn’t.
i. Ct held the statute did not reach outside of NY. The legislature would have expressed this intent if it meant to apply out of NY, and there was no such language to make the statute reach outside of the state. Only applied to ppl getting married in the state of NY. Therefore, there is no positive law prohibition that will make this marriage invalid.
-No extraterritorial effect.
ii. Does this violate natural law OR NY public policy?
-No b/c this is permitted in the Jewish faith OR b/c NY doesn't proscribe marriages in other states, marriage that occurred in RI won't violate public policy
B. Lanham v. Lanham – W got a divorce in order to marry the decedent. Divorce in state of WI and the state required that one cannot marry for 1 year after the divorce. MI had no waiting period. The couple went to Michigan to get married and returned the next day; cohabitated together as husband and wife until the death of decedent.
i. Widow wants a “widows share” of the estate.
ii. Children appear and say
e while being inc in another.
F. Wrinkles in the Theory: “Escape Devices” from strict lex loci rules of 1st RS
1. Characterization – before the rules of the 1st Rest may be applied, one must know what kind of case it is (tort, K, etc); often treating tort as another issue to avoid harsh lex loci rules that many cts saw as imposing an unjust result
Rule 1: The law of the place of domicile will govern if one has the capacity to sue.
A. Haumschild v. Continental Casualty Co. – WI forum; W wanting to sue H for personal injuries she received while in CA . WI domiciliaries. CA prohibited suits against husband and wife, WI did not.
i. Not an issue of tort, but of whether one has the capacity to sue.
ii. Ct places reliance on Emery – suits with family relationships are more properly determined by reference to the law of the state of the family domicile. Than place of injury; Ct recharacterizes tort as family law/domicile issue
iii. Law of the domicile will determine whether one has the capacity to sue – Wis allows wife to sue husband.
-states have the responsibility for regulating incidents with families domiciled there.
-rights/duties etc should not change when families cross state lines
iv. This made no big change in Wis law; limited restrictive change
-the law of the place of tort applies – law not overruled
v. Characterization issue – to depart from est choice doc of the state that would not normally be the est doctrine.
2. Renvoi : 1st RS choice of law picks law of place of situs of wrong, K, etc BUT question of whether this includes foreign state's own choice of law rules? Problem is it creates circle where: relevant forum choice of law rules refers to choice of law of some other place, which might lead back to the original forum “deja vu”
– 1st Rest Rejects Doctrine except in cases involving questions about title to land or the validity of divorce decrees.
– the forum state will apply the whole law (which includes that states conflict of law rules as well as “internal law”) of the other state in conflict of law problems.
– Problems with Renvoi – State 1 choice of law says to apply the law of state 2, and state 2 choice of law might say apply the law of state 1 – circular
– Basic issue is when a state decides it is going to apply the law of another state, will it apply the whole law or that states internal law?
Rule 1: The disposition of deposit accounts will be governed by the sub law of the location where the accounts are created, however the conflict of law rules of that state is not a body of sub law to be applied by a forum state. Thus a forum state will apply its own COF rules.
Rule 2: When a K does not designate a law to be applied, the law to be applied will be that where the K is to be performed; with a promissory note, the place of delivery to the lender is where the K is to be performed (made by mail, delivery is made at place of mailing, not receipt)
A. In Re Estate of Damato – NJ domiciliary died and left 2 banks accounts in FL. So issue was whether to apply FL or NJ law to the trust left to son. Other son argued NJ should apply FL conflicts law which would result in application of NJ substantive law. Probate ct followed FL sub law, and accounts went to first son.
i. With foreign bank accounts, the foreign states law of conflicts will not be applied.
ii. FL law of the accounts will be applied, but not its conflicts of law rules.
iii. Totten Trust Rule – a bank account opened by one person in trust for another.
iv. Rule was that disposition of bank accounts will be governed by the sub law of the location where the accounts are created.
v. By NJ applying its own conflict of law rules, this would mean FL sub law will be applied to the bank accounts.
vi. In actuality, there is a NJ statute that would have upheld this Totten Trust so the CT did not have to go to FL – maybe CT wanted to reject the Renvoi doctrine
