I. TRADITIONAL APPROACH
i. Overview:
a. Territorialism
i. All about Territorialism, which in-turn equals power for the state
ii. State will first look to its own conflict law to decide which internal law to apply
b. Vested Rights
i. Beal: Vested Rights (that you can carry with you) under territorial law.
c. Procedural/Substantive
i. Apply Procedural Rules
ii. Which are procedural/Substantive???
1. look to purpose of creation
d. Characterization
i. Primary/Secondary
e. Localization
i. This tells us where the rights vest
f. Renvoi
i. If localization points us to different forum…then use renvoi (accept, reject)
2. Jurisdictional-Selecting Rules
i. Tort
1. Where did the event occur? VESTED RIGHTS – “place of wrong” (lex loci delicti) ****comedy is opposite (choice)
a. The “state of wrong” is the state where the last event necessary to make an actor liable for an alleged tort takes place (1st Restatement)
2. Territory Rules
a. There can be no recovery in one state for injuries to the person sustained in another, unless the infliction of the injuries is actionable under the law of the state in which they were received.
3. Territorialism brings up localizations rules
a. Choosing jurisdictions…
b. “The last event—is what that gives right to the claim.”
i. Localization rules —jurisdiction selecting
c. ***we ought not to be subjected to punishment, liability or other legal detriment for conduct which we had good reason to believe would not subject us to such troubles. —last event would not always work because of this
d. If events take place in multiple states then the actor would have to know what could happen in each territory.
e. Pros
i. Ease of application
ii. Prevents forum shopping
iii. Uniformity
f. Cons
i. Selection of localization rules
ii. Holds people to laws they are not working towards upholding
ii. Contract Rules
1. The general rules is that the validity (capacity, consideration, fraud, etc.)of a contract is to be determined by the law of the state in which it is made; if it is valid there, it is deemed valid everywhere, and will sustain an action in the courts of a state whose laws do not permit such a contract.
2. Issues concerning performance such as duty to perform, adequacy of performance, discharge, etc are determined according to law of place of performance
3. Contract – the final actthat made contract
a. normally acceptance
b. but many forum states have other
4. Validation Rule
a. Assumes that parties intended to create a valid, binding contract – go with the law that validates the contract.
iii. Situs Rules & Domicile
1. Property
a. General rule – law of the place of situs.
i. The creation, transfer and termination of non-possessory interest in land are determined by the law of the state where the land is located.
b. Movables (localization rules)
i. If movable and not estate—look to location of transaction
ii. Look to the domicile of the testator
c. Immovables
i. Apply law of situs (where located)
2.
a cut-off
i. If the forum state accepts the renvoi and it ultimately comes back to you…then cut it off and apply your own law.
1. This undercuts the uniformity and could allow for different results.
ii. 6. Example – In Re Schneider’s Estate (APP 2)
1. This case has jurisdiction because the probate of the will has liquidated the foreign realty and transmitted the proceeds to the State. She is now accounting for the assets of the estate including the fund representing that realty.
2. Court still applies law of the Situs because the issue goes back to whether the real property was disposed of in a legal way.
3. Swiss’ internal law – family members had interest in part of the land.
4. Swiss law accepts the renvoi
5. Swiss choice of law rules
a. Hybrid….dual citizen because under Swiss law he had to renounce his allegiance in the manner prescribed by statute, and he did not do this.
6. Holding: the court then makes a clear guess because there is no case law – so they apply the domicile.
7. Traditionally courts rejected the renvoi—they accepted it in this case because of an exception under restatement.
a. Title to land
b. Validity of Divorce
iv. Public Policy
1. Cardozo’s Definition: Courts do not close their doors [because of public policy] unless help [to the other state] would violate some fundamental principal of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal. (Loucks v. Standard Oil Co)
2. First Restatement – No action may be maintained upon a cause of action created in another state the enforcement of which is contrary to the strong public policy of the forum
3. If forum state has no interest – public policy exception should not be used. U.S. courts will not sit in judgment of other countries. (But if forum does have an interest – can try public policy argument)
4. Other
a. Almost every jurisdiction has a public policy exception.
v. Penal Laws
