Select Page

Conflicts of Law
SUNY Buffalo Law School
Phillips, Stephanie L.

CONFLICT OF LAWS
Prof. Phillips – Fall 2011
BACKGROUND
 
Hypothetical
State Y:
–       A & B reside
–       Forum
–       Substantive law (S)  – gambling contracts illegal
 
State X:
–       race track
–       gambling K made here
–       S – gambling contracts legal
 
The choice of whether to apply the law of X or Y is outcome determinative.  In State X, P will be entitled to a judgment.  Not so, in state Y.  The court in each jurisdiction is bound by the highest court’s decision as to which approach should be used in either a K dispute or a tort dispute.
 
Reasons for State Y:
–       common domicile – parties from same jurisdiction
–       forum
 
Reasons for State X:
–       K was made here – under some systems of choice of law, this would be determinative.
 
 
Four systems of choice of law:
*each are in use in the US
Traditional approach – 1st restatement (1934), rule based system with two foundational principles à (1) territorial sovereignty and (2) vested rights.  The judge would focus on where the contract was made (in the above hypo would apply law of State X).  Small public policy exception, moral turpitude outrageous contracts.
 
2d restatement
 
Interest analysis – State Y law would apply b/c that’s where P and D reside.  Relationships among people.  Since both people reside in Y and they made a K between themselves there’s no rational reason why the transaction should be governed by anything other than where they reside.
 
 
Better law approach
 
 
TRADITIONAL APPROACH CHOICE OF LAW
 
 
HISTORY OF CHOICE OF LAW
–       First Restatement 1934 (Joseph Beale) – immediately subjected to criticism, politically motivated in part
–       Critics – legal realists thought that it had politically conservative implications
o   Predominant form of legal thinking during this period was legal formalism.  The SCt was engaged in striking down a lot of the New Deal legislation.  Led to the First Restatement of Conflicts (results would be clear and certain)
o   Critics wanted to show that the First Rest didn’t work the way that it was supposed to work and bring back some of the New Deal legislation.
o   Jurisdiction analysis only
–       1950s – 1960s new approach à governmental interest analysis (Curry)
o   requires that a policy analysis be done as to which law is chosen
o   laid the foundation for the 2d Restatement
–       2d Restatement 1971
o   combines features of both
o   most widely used system in the US
–       Modern approaches are built upon the traditional approach
 
 
THE PLACE OF WRONG
 
Alabama Great Southern RR v. Carroll (1892) p.6
D’s RR runs throughout these three states
P = employee; D = employer
P worked in Alabama and Mississippi
If Alabama’s law is applied, P will win; if Mississippi’s then no.
 
 
Tennessee
Alabama
Mississippi
 
P is citizen here
D is incorp here
Employment K made here
Negligent act occurred (assume)
S = Employer’s Liability Act
Injury here
S = common law (fellow servant rule)
–       This case could be considered a tort case or a contract case, due to the accident and the contract of employment.
–       Characterization is outcome determined, depending on the way you look at the case, you can create a different outcome for the case.
–        
Rule: Tort liability is governed by the law of the place of wrong.
 
Held:
–       Mississippi law applies b/c this is the place of injury
–       Place of injury = only significance (essence of traditional approach)
o   P claims he should recover b/c D’s negligence occurred in Alabama.  But negligence that doesn’t produce an injury is not actionable, and D’s negligence had not produced an injury by the time the train left Alabama.  The fact which created the right to sue, D’s injury, occurred in Miss, and without that injury, there would be no action against D anywhere.
o   Where there is a series of events that leads to liability, the cause of action vests where the last event which results in liability takes place.  In this case, the last event was in Miss.
–       Assume this is a tort case (duty, breach, cause, damages); here the court focused on one element of the tort, where the injury occurred.
–       Argument for applying state’s law where negligent act occurred à apply law from where the negligent behavior occurred, will deter future behavior
–       If this was a K case – the K was made in Alabama and the Alabama Act is incorporated into the employment K.  If this was a K issue, the place where the K was made would be the determinative state and the Alabama Act would govern
 
If you see either a tort issue or K issue in one case (as here) à characterization problem; Characterization can be outcome determinative.
 
None of the principles of the choice of law are so definite that they can explain a particular rule through time.
 
There is no clear rational as to why a court from one state would apply the rules of law from another jurisdiction.
 
In determinative
·         1.  territorial sovereignty
·         2.  vested right
3.  Comity (optional) is a decision to be nice to others.
 
 
Place of Wrong – First Restatement § 377 (supp p.3)
–       If physical injury is involved, the place of impact is the place of wrong.
–       In most cases, the place is easy to determine – virtue of this rule.
–       Drawbacks – (i) deemphasizes deterrence, (ii) the place of wrong is not always necessary to the cause of action, (iii) in torts that don’t involve physical injury its difficult to figure out where the place of wrong is
 
Hypos p.15
5a. Massachusetts – dog strays from home; S = absolute liability
New Hampshire – dog bites plaintiff; S = “one free bite” rule
Massachusetts is the forum
The judge will apply the

ems – What if Barrie had land in Illinois and personal property in Iowa in addition to the land in Iowa? Illinois will govern the Illinois land and Iowa will govern the land in Iowa.  Descent of personal prop is governed by the law of the decedent’s domicile at the time of death.  So, Illinois law will govern the personal property in Iowa.  There are statutory solutions however.
–       A will is valid if executed within the provision of the uniform probate code (section 2-506) or in accordance with the place of execution or in accordance with the place of the decedent’s domicile.
–       Section 2-506 is adopted by NYS.
 
Immovable Property rule – (1) descent of immovable property is governed by the law of the situs, (2) title to immovable property is governed by the law of the situs.
 
Movable Property Rule – (1) descent of movable property is governed by the law of the decedent’s domicile, (2) Title to movable property is governed by the situs of the property.
 
Questions:
–       But, at what point do you apply the situs rule?  Movable property moves around.
–       How do you apply the situs rule to intangible property? Shares in a corporation.
 
Immovable = real property + leaseholds
Movable = personal property
 
Cammell v. Sewell (page 29, #5)
            The rights of a sea cabin to dispose of cargo on a wrecked ship are different in Russia than they are in Norway
 
Russia                                   Norway                                  England
-cargo loaded                        -wreck                                                -2nd auction
                                                -cargo sold (auction 1)        -destination
 
*any kind of intangible property can be considered personal or movable property.
 
THE PLACE OF CONTRACTING
–       Basic rule à
o   First step in a K case is to determine whether the suit involves the validity of the contract or the performance of a K.
o   Validity problems (ie. offer and acceptance, sufficiency of consideration, illegality) are solved by applying the law of the state where the K was made, which is usually where acceptance takes place.
o   Performance problems (ie. sufficiency of performance, excuses for nonperformance, damages) are governed by the law of the state where, under contract, performance is to take place