Conflicts of Law Outline – Professor Andrews – Fall 2013
Exam – 1 state to state choice of law question (big essay) and a separate essay Erie question
I. Problems in choice of law
A. What do states look at when choosing which law to apply?
a. Policies that might be at issue when choosing a proper approach to choice of law-
i. Predictability
ii. Underlying actions (making a product, drafting a contract etc.)
iii. Forum choice
1. This will be particularly important to a plaintiffs attorney
iv. Sister state harmony
v. Policy not to snub the other states
vi. Forum interest
vii. Substantive law policies
viii. Party expectations
1. This is seen a lot in contracts and property cases
a. Ex: expectation that the contract will be enforced
ix. Better law/better result
1. Better law would look at the difference between two different laws—this is arguable neutral- looking at which law is actually better regardless of who wins.
2. Better result would look to see which of the laws produces a better result (this is not commonly used)
x. Ease and efficiency
xi. Uniformity
1. It should not matter where we file the lawsuit, we should get the same result regardless.
B. Characterization
a. The First Restatement formulates different rules for different types of cases and issues –
i. IN order to selected the right rule, it is necessary to classify the case properly.
1. Tort claims can sometimes be reconfigured as contract claims (breach of implied promises/restitution claims)
2. Contract claims can sometimes be reconfigured as tort (breach of duty of good faith/fair dealing).
3. Product liability claims – breach of warranty OR strict liability for dangerous products.
b. Fitting factual situations into established legal categories – the significance of characterization varies according to the choice-of-law approach used.
i. Depending on how an issue is characterized, (ex. Torts v. contracts) the outcome of the choice-of-law determination may be different.
C. Renvoi
a. A forum’s choice-of-law rules may refer a matter to a foreign law for decision. The question then becomes is that reference to the whole body of the foreign law (including its choice-of-law rules) or to the purely internal rules of the foreign systems (the rules that would allow to a purely domestic case in that jurisdiction)?
b. If the forum applies the whole law of the other (non-forum) state, those choice-of-law rules may differ from the ones used b the forum –
i. Renvoi occurs if the choice-of-law rules of the forum and the state used are different, and refer the forum court back to its own law or to the law of a third jurisdiction.
c. Renvoi is a “conflict in choice-of-law rules.”
i. Remission
1. Where the other state’s choice-of-law rules refer the forum back to its own law.
ii. Transmission
1. Where the other state’s choice-of-law rules to the law of a third state.
d. The majority view completely rejects the renvoi, and only looks at the other states internal laws.
D. Proof of foreign laws
a. Traditionally, the content of foreign law—even that of a sister state—was considered to be a question of fact.
i. If a party asserted a claim or defense under foreign law, he was required to plead and prove that law as if it were a fact.
1. Ex. Required to bring an expert witness to testify.
b. However, modern practice for courts is to take judicial notice of the laws of sister states or the United States.
II. 1st Restatement (traditional) approach
A. Vested rights
a. Directs the forum in every case to apply the law of the state in which the rights of the parties vest.
i. Rights are deemed to “vest” in the place where they are “created” – in the state in which the particular act occurred or the particular relationship was created.
ii. The law of that state then governs all substantive issues in the case, no matter where the suit is brought.
b. The is a two step analysis—
i. Charactize the issue
ii. Localize
i. Succession and marriage issues related to property use the rules of domicile instead.
2. EXCEPTION – when there is ambiguous language in a legal conveyance and the actual intention cannot be determined, then the law of the person’s domicile provides the rules for construing the meaning of the language.
ii. Moveable property
1. Law of the place where the property is located for most issues involving transfers during the owner’s life.
2. Problems—
a. Location when?
b. Where is it?
c. What is the location of intangibles
E. Traditional Approach to Wills, Intestate Succession, and Trusts
a. Land – the place where the land is located.
i. EXCEPTION – when language has given legal effect regardless of the testator’s intent then language is governed by the rules where the land is. But when the language is a questions of intent and the person’s intent cannot be determined, the First Restatement applies the rules of construction of the person’s domicile at the time he made the will.
b. Personal property
i. The law of the decedent’s domicile at death governs most of the issues regarding transfers at death.
1. The distribution of personal property outside a will, including the rights to a forced share or an allowance to a spouse, is governed by the place where the decedent died domiciled.
c. “Will-Borrowing” statute
i. To avoid invalidation of wills, most states have enacted “will-borrowing” statutes –
1. Generally provide that a will is valid when it complies with the legal requirements of the place where executed or of the testator’s domicile at the time of the execution.
F. Traditional Approach to CORPORATIONS
