CONFLICTS OF LAW – PROF. ANDREWS (FALL 2015)
Part I: State-To-State Choice of Law
TRADITIONAL VESTED RIGHTS APPROACH – FIRST RESTATEMENT
Traditional Approach Application:
Identify the contacts
State the issues
Characterize the issue/find the rule
Apply the rule
Check for exceptions
GENERAL RULE = LAW OF THE PLACE OF WRONG
§ 377 – Place of wrong is “the state where the last event necessary to make an actor liable for an alleged tort takes place.”
“Last event” = “the place where the harmful force first takes effect on the body”
Place of Wrong = Place of Injury
SPECIFIC RULES
§ 377 – defamation: “where the defamatory statement was communicated”
§ 378 – existence of legal injury
§ 381 – standard of responsibility
§ 383 – causation
§ 385 – contributory negligence
§ 387 – vicarious liability
§ 388 – defenses to liability
§ 390 – survival of actions
§ 412 – measure of damages
§ 377 – In cases of poisoning, the law of the place where the poison takes effect governs.
§ 380(2) – If the law of the place of wrong depends upon the application of a very particular standard of care, that standard should be taken from the law of the place of the actors conduct.
Narrow Exception – Applies only where both the place of wrong and place of conduct have the same common law standard of care, but the place of conduct has more precisely defined the standard so that it is no longer a question of fact for the jury.
: Whether the defendant was speeding would be governed by the state where they were driving because that is where the speed limit is.
§ 382 – A person required, forbidden, or privileged to act under the law of the place of acting should not be held liable for consequences in another state.
§ 387 – Vicarious liability of defendant for the acts of another is determined by the place of wrong only if defendant authorized the person to act for him in that state.
: The actor justifiably relies upon the law of the state where he acts, and his reasonable expectations about the results of his conduct should not be frustrated because of the fortuity of an out-of-state injury.
Conflicts Policies
Uniformity = High
Reduces forum shopping
Predictability = High and Low
The forum’s choice of law is very predictable
Which law will govern is very unpredictable because injury could happen anywhere
Efficiency = High
Mechanical application without concern for principles or policies
Sister State Harmony = High
Gives complete deference to foreign state’s law
Forum Interests = Low
No substantive policies of the forum state are advanced
Better Law = Low
No regard for what law is more just
Substantive Policies = Low
Tort Cases:
Alabama Great Southern Railroad v. Carrol
Facts – Brakeman injured in Mississippi sued employer railroad in Alabama?
Issue – Did Mississippi’s fellow servant rule apply?
The plaintiff was injured in Mississippi, so its law governs
Validity = Law of the place of making
Place of Making
“Where the principal event necessary to make a contract occurs”
§ 312 – For a formal contract, the principal event is delivery
§ 323 – For a unilateral contract, the principal event is the offeree’s performance.
§ 326 – Adopts the “mailbox rule,” which provides that the state where acceptance was transmitted is the place of contracting.
Issues of Validity
Capacity to contract
Necessary forum in which promise must be made
Mutual assent/consideration
Other requirements for making a promise binding
Defenses (e.g., fraud/illegality)
Performance = Law of the place of performance
Issues of Performance
Manner of performance
Time and place of performance
Persons by whom or to whom performance shall be made or rendered
Sufficiency of performance
Excuse for nonperformance
Measure of damages (§ 413)
Contractual Language
§ 361 and 332 comment a – The interpretation of the meaning of language in a contract depends upon the law of Contracts and is not a question of Conflict of Laws. The rules for ascertaining the meaning of the words of a contract are considered in the Restatement of Contracts
Escape Devices
Unilateral/Bilateral Distinction
: In Milliken v. Pratt, the court characterized the Massachusetts wife’s sending the promissory note as the offer and the Maine seller’s shipment of the goods as the acceptance and applied Maine law. It could have characterized the wife’s sending the note as the acceptance to the seller’s offer to sell, resulting in Massachusetts law.
Making/Performance Distinction
Public Policy
Would enforcing the contract go against a strong public policy of the forum?
Contract Cases:
Milliken v. Pratt
Facts – Seller sued wife on promissory note after husband defaulted on obligation.
Issue – Did Massachusetts law preventing wives from acting as sureties to their husbands apply?
The contract was consummated when the seller in Maine shipped the goods, to Maine law applies
Real Property (Immovable) = Law of the situs
– where the land is located
This rule retains much of its authority today, even where courts have abandoned the First Restatement in other areas
Common Issues
§ 209 – classification of property
§§ 214-222 – conveyances of land
s procedural thus California should apply its own rule
Court –
Distinguished from Cort v. Steen because Cort dealt with retroactivity and was not binding.
Bournais v. Atlantic Maritime Co.
Facts – Seaman wanted to collect under Panama labor statute that would have given a windfall.
Should the U.S. forum apply the foreign limitation and bar the action?
The limitation period in the labor code applied generally to all causes of action under the code, so it was not specifically and inextricably tied to the right.
Etheredge v. Genie Industries
Facts – Plaintiff was injured while working with a lifting device manufactured by the defendant.
Issue – Was the plaintiff’s cause of action time barred by the North Carolina limitation period?
The NC statute was general and not tied to the substantive right.
Escape Devices:
General Rule: Courts may recharacterize the issue so another rule applies
Characterization Cases:
Levy v. Daniels’ U-Drive Auto Renting Co.
Facts – Plaintiff attempted to sue the rental company for injuries he sustained while riding as a passenger in one of the company’s vehicles.
Issue – Did the Connecticut law making rental companies liable apply when the accident took place outside of the state?
The rental contract incorporated the Connecticut law that allowed this type of recovery
Court –
Recharacterized the issue as one of tort as one of contract, so the law of the place of contracting would govern.
Haumschild v. Continental Casualty
Facts – Wife was injured by husband’s driving while in California where spouses could not sue one another, but the couple was domiciled in Wisconsin where spouses were not immune.
Issue – Did California’s spousal immunity rule bar the wife’s suit?
Wisconsin law should apply.
Court –
Recharacterized the issue of spousal immunity as one of family law, so the law of the place of domicile should apply.
: Alternatively, court could characterize the rule as procedural because it prevents fraud on the court.
