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Conflict of Laws
Southern Illinois University School of Law
Beyler, Keith H.

Prof. Beyler


Spring 2014



1. Theoretical basis: forum must apply the law of the state in which the rights of the parties vest.

a. Definition-vest: rights are deemed to vest in the place where they are created (i.e., where the act occurred or relationship was created).

2. Methodology: 2-step analysis:

a. Characterization: forum court must first “characterize” the lawsuit into a basic legal category (e.g., torts, contracts, property).

b. Localizing the connecting factor: forum court must localize the significant event or thing (the connecting factor) in a particular jurisdiction and apply the law of that state.

3. Application of relevant law: forum then applies the law of the jurisdiction in which the significant event or thing occurred.

a. Escape devises: to avoid harsh and unjust results, courts often reach decisions through various escape devises.

1) Substance vs. procedure distinction.

2) Alternative characterization.

3) Renvoi.

4) Local public policy.


1. Nonintentional Torts-“place of wrong” rule (Rest. § 378): tort liability is determined according to the law of the place of “wrong.”

a. Place of injury as place of wrong (Alabama Great Southern R.R.): place of wrong is generally the placed where P’s injuries were sustained.

b. Exceptions to place of injury rule:

1) Duty or Privilege to Act (§382): where D’s conduct was privileged (e.g., to the life or property of another), courts apply the law of the place where the conduct took place.

2) Contributory negligence (§385): whether contributory negligence of P precludes recovery for negligent injury is determined by the law of the place where the tortious conduct occured.

3) Vicarious Liability (§387): law of the place of wrong determines whether D is liable for the tort of the other ONLY if the other person is authorized to act for him.

2. Intentional Conduct (Marra v. Bushee): place where the tortious conduct occurred will be considered to be the place of wrong.

a. Reasoning for the ROL:

1) The major justification for the place of the harm rule is the protection of the compensatory element which buttresses a state’s designation of negligence as “wrongful conduct.” When this compensatory element is dominant as it is in the ordinary negligence action, the place of harm rule is appropriate. However, when compensation is a secondary factor for and the punitive element is dominant, a state finds conduct wrongful because its people regard it as sinful or offensive to public morals, and the conduct, not the injury is critical for purposes of applying the applicable law.

b. Traditional system defense

1) If the applicable law is not independent of the forum in which the action is brought, lawyers will not be able to advise their clients as to what course to pursue

2) It might be advantageous to P’s to forum-shop or file multiple lawsuits.

3) The notion of “law” is unitary, and a system the allows results to differ on the basis of forum is therefore not law

c. Traditional Approaches

1) Territorial

a) The rules tell us to look to where the events happened, and not where the people involved in the events are from

b) All that matters is where the injury occurs

2) Jurisdiction selecting

a) Look at the rule and it points us to a state, and then and only then do we ask what the states law is

b) These rules are not in any way dependent on what law that state has

3) Big Boxes

a) The choice of law rules that we have are very board rules, the law of the place of injury, determined under the last event rule, applies also to virtually all tort

4) Forum Neutral

a) Rule we are talking about is one in which it does not matter where the other cases were filed.

d. Note-primarily occurred: determinative issue is where D’s conduct primarily occurred.


1. Validity Problems-“place of making” rule (§332): problems relating to the validity of a contract are determined by the law of the place where the contract was made.

a. What constitutes a validity problem: above ruled applied to issues involving formalities of the contract:

1) Sufficiency of consideration.

2) Parties’ capacity.

3) Fraud.

4) Illegality.

5) Defenses making contract voidable.

6) Nature and extent of duty.

b. Determining place of making (§311): generally this is where the offer was accepted.

1) Example-telephone (Linn): for contracts negotiated in an interstate telephone call, the place of “making” was where the accepting party spoke.

2) Example – telegraph: When an acceptance is authorized to be sent by telegraph, the place of contracting is where the message of acceptance is received by the telegraph company for transmission

2. General Rules:

a. Place of contract if the acceptance is sent or is delivered by the agent – the place of deliverance is the place of contract

b. Place of contract if mailed or accepted by mail – place of contract is where it is sent from

3. Formalities of Contracting (Restatement 3340: The law of the place of contracting determines the formalities required for making the contract.

a. Ex. SOF: T

intent to remain indefinitely, he will acquire domicile regardless of the reasons for the change.

c) Mental capacity (Rodriguez Diaz): incompetent may change his domicile if he exhibits sufficient understanding to voluntarily choose a new residence.

d) CL for Minors: The citizenship of a minor is the citizenship of his parents, and to determine whether the minor has become emancipated so that he may establish a domicile of choice, we look to the law of the state of the citizenship of his parents.

e) Determining intent: whether a person intends to remain there indefinitely is determined by his words and conduct.

f) Absence of intent to remain: if a person doesn’t indicate any intent to remain permanently where he resides, his original domicile remains.

3) Note-unitary concept of domicile: traditionally, domicile was seen as a unitary concept (i.e., one that didn’t change, regardless of the particular issue involved).

4) Personal property goes to the law of the place of domicile and real property goes by the law of where it is located

5) Continuity of domicile: present domicile remains until a new domicile is acquired, so a person can have only one domicile at a time, and it is impossible to be without a domicile.

c. Domicile by operation by operation of law: traditionally, certain persons were deemed incapable of acquiring a domicile of choice and were assigned one by law.

1) Wives: wife acquired the domicile of her husband.

2) Minor: domicile of a minor is that of the parents.

3) Domicile of incompetent person: a person who lacks the minimal competency to choose a home will retain the domicile of his parents.

4) Corporation: corporation is domiciled in the state where incorporated, and can’t acquire a domicile outside that state.

4. Domicile determined by law of forum: governing law is that of the forum.

a. Note: this is true even where the domicile is another state or country.

b. Constitutional limitation: it might violate the 14th Amendment Due Process Clause for a forum to adopt some unique concept of “domicile” to justify application of its laws to nonresidents.