CONFLICT OF LAWS
Prof. Phillips – Spring 2010
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.
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 COL
– 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.
P is citizen here
D is incorp here
Employment K made here
Negligent act occurred (assume)
S = Employer’s Liability Act
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.
– 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.
· 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
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 law of New Hampshire b/c the dog bit the plaintiff there, the place of physical impact/place of wrong. However, you could look at it that the place of wrong was Mass since the person maintains the dog here and let him go there. Here, the judge said that the dog was the wrongdoer.
1 free bite rule- a dog has to bite someone before to make it deemed a dog with a dangerous propensity, therefore the owner is only responsible if the dog has bitten someone before.
Same facts as Alabama RR case, but there is a wrongful death claim here.
P injured in Mississippi by the Alabama negligence and is taken to a hospital in Georgia and died.
Assume that decedent has relatives who reside in Georgia and these are the P’s.
The last event necessary for wrongful death is death, therefore Georgia would seem logical.
For wrongful death, the injury is actually to the survivors not the decedent. Arguably they are injured at the place where they live (irrelevant for traditional analysis).
But the Restatement § 377 says that the only thing that’s important is where did the force impinge upon his body. It’s Mississippi. The place where he died is immaterial.
Defamation statement and invasion of privacy. Might lead to two choices of law for two claims. Defamation claim – where statement was published. Privacy claim – where she was when her privacy was invaded.
· In theory you should apply the law of each of those places to decide whether Hussler is liable to her there and then decide the damages if any…but since this is long and costly, some judges look at it differently.
· Some judges improvise, they come up with some sort of generalization to decide these cases to save time and effort.
The place of wrong for defamation- where plaintiff was when words were published
The place of invasion of privacy- where the defendant was when their privacy was invaded
Mass tort claim – generally, unless there is a statutory solution saying which law governs, the judges are left to their discretion.
· When mass torts involve substances that harm over a long period of time, or with varying problems they are often solved by statute.
· Congress is usually too busy to do this, so they leave it up to judges to decide what is sensible and approvpiate in these cases.
THE SITUS OF PROPERTY
– Once a court characterizes a suit as involving property, it must determine whether the property is movable or not.
– “Immovable” property
he truck to go to Mass. Delivery was effective in Maine b/c it was delivery to a common carrier. If the Ps had taken the goods directly to Pratt then delivery would have happened in Mass.
§ Note 5: k is made in Maine where he spoke the words of acceptance. In second hypo, k is made in Mass.
§ Note 7: (C= conflict of laws law of that state; Q stands for qualifications- Supp. 5)
Day 1 offer mailed
Day 2 acceptance mailed
Day 3 offer revoked
Day 4 acceptance received
C – place of contracting
C – K obligation governed by law of place of contracting
S – must keep offer open a reasonable time
S – acceptance is made when received
S – offer revocable until accepted
S – acceptance made when sent (dispatch rule)
Q – dispatch rule, where acceptance is sent from
Q – place of contracting = place where mailed (p. 23)
§ Start with state that is the forum
§ Start w/the conflicts rule (“C”)
§ Locate the place of contracting, and if can’t figure it out look for the Q law to tell you. It will give you the connecting factor, here it gives us the place of contracting.
§ Q à subsidiary legal principle needed to locate the connecting factor
§ Q= Indiana is the forum, so Indiana’s substantive law will govern. The offer wasn’t received until day 4. Was the offer revoked too quickly? Or was the time length reasonable? There would only be a k if that offer was kept open.
§ Here the court is likely to get its Q rules from its K principles, not its conflicts principles
§ If you have a situation where two jurisdictions are drawing their Q principles from their contract law and if that law is different it will lead to different outcomes to the case. This will lead to forum shopping. You can research the law and file in the place which is most favorable to your client. Some people think this is a big problem.
§ § 311 comment (p. 22) – determination of “place of contracting.”
§ The above hypo illustrates what the comment is talking about.
§ If everyone followed the same C rule and Q rule, the result would be the same in either state.
§ Three different kinds of legal principles: (1) conflicts rules – “C”, under the traditional approach each rule relied upon is based on locating one connecting factor or the event that connects the sovereign state to the people involved, ie. the situs, the domicile, where the K was made. If the C rule is obvious, then apply the state’s S; (2) if you cannot locate the connecting factor, look to the Q rule (qualifications); (3) substantive law (“S”) is the bottom line.
§ Where both states have the same C rule, uniformity of result requires that they both have the same Q principle. Here, if either Indiana or Michigan were the forum, the result would come out the same à Indiana’s law would apply
§ If the Q rule were different, ie. if Indiana’s Q rules said “acceptance made when received”, the outcome of the case will depend on whether filed in Michigan or Indiana.