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Conflicts of Law
University of California, Hastings School of Law
Tierney, Kevin Hugh

Text: Conflict of Laws, Hay, 13th Edition
Conflict of Laws Fall 2010 – Tierney
·         What is Conflicts of Law?
o    Resolves doubts about what law is applicable in interstate and international transactions
·         Why is it needed?
o    There are different laws in nations and states
o    Competing claims by different nations, states to adjudicate facts
o    Concurrent jurisdiction is the norm now
·         Note that Conflicts of Law is known as “Private International Law” abroad
·         Forum Shopping
o    Since the US has the highest award amounts inevitably, it will be chosen
·         Medellin v. Texas – SCOTUS,
o    While an international treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or unless the treaty itself is “self-executing”
o    Decisions of the International Court of Justice are not binding domestic law;
o    Absent an act of Congress or Constitutional authority, the President of the United States lacks the power to enforce international treaties or decisions of the International Court of Justice
·         Domicile
o    Legal tool employed to attach a person to a particular locality for some particular purpose
o    Goes beyond residence, which just physical presence; domicile is the legal home
o    Jurisdiction
§ Domicile is an accepted basis for an in personam jurisdiction over an individual
o    Choice of Law
§ Basic Rule – governing law is the law
§ If a person domiciled in a state, its laws will normally govern the inheritance of chattels, even if he died in another state
o    3 types of domicile
§ Origin – Infants at the time of birth get the domicile of their parents
§ Choice – intentional selection of a legal home
§ Operation of Law – Usually if lacking capacity (mental)
·         Jurisdiction
o    3 essential elements to establish proper jurisdiction
§ Constitutional Basis
·         Sufficient contacts between state and person/entity
o    In personam
§ Court has the authority to determine the rights & duties of the parties and power to bind the parties personally. 
o    In rem – minimum contacts
§ Subject of the action is some item of property located in the state
§ The court can determine the rights of the entire world in that specific property, but parties not personally bound
§ No personal jurisdiction is required
§ Ex: probate, admiralty, escheat
o    Quasi in rem
§ Court determines rights of particular persons in specific property
§ Ex: foreclose a lien, partition, quiet title, ejectment
o    Determinative factor: type of relief sought
§ P seeks to assert rights in a piece of property à (quasi) in rem
§ P asserting only a general claim against D à in personam
§ (quasi) In rem – local to the situs; In personam – transitory
§ Competent Court
·         Court must have authority to entertain the action
§ Procedural Due Process
·         Reasonable notice and opportunity to be heard
Choosing the Rule of Decision (Chapter 8)
·         Traditional Vested Rights
1.       Characterize the area of substantive law (e.g. contracts, torts, or property)
2.       Localize the significant event or thing (the “connecting factor”) in a particular state
3.       Apply the law of the state
·         Most Significant Relationship (Rest 2d)
1.       Consider the connecting facts: the specific contacts with each state
2.       Consider the policy oriented principles
                                             i.            Needs of interstate systems
                                            ii.            Relevant policies of forum
                                          iii.            Policies and interests of other involved states
                                          iv.            Expectations of parties
                                            v.            Basic policies underlying the substantive area of law
                                          vi.            Predictability and uniformity of result
                                         vii.            Ease of determination of foreign law
·         Governmental Interest (Currie)
1.       Assume he forum will apply it own law unless requested to apply another
2.       If it is requested to apply another state’s law, check for a false conflict (forum or other state has no interest)
3.       If false conflict, apply the law of the interested state
4.       If true conflict, the forum reconsiders its policies. If the conflict cannot be avoided, forum applies its own law
5.       If the forum has no interest in applying its own law but two other states have a true conflict, it should dismiss the case if forum non conveniens is available; if not, it may apply law of the state that most closely resembles its own law (Case of disinterested forum)
6.       If no interested state, most courts apply law of the forum
·         Traditional Model (Lex Loci)
o    Last Event Test for Torts (Lex Loci delicti)
§ Court applies the law of the ‘place of the wrong’. 
·         Ex 1: In the product liability context, this was ordinarily interpreted to be the place where the alleged injury occurred
·         Ex 2: You are careless in California constructing something, but the damage occurs in Nevada à Nevada law applies
§ Alabama Great Southern Railroad v. Carroll, SC Alabama, 1892 (483)
·         Pre-worker’s comp law
·         Carroll – lived, worked in AL for the railroad, injured in MS (links between cars broke)
·         AL has an Employer’s Liability Act,
·         MS does not, instead follows “Fellow servant rule”
o    Employer not liable if one employee injures another
·         MS law applied by Alabama court è RR not liable à last event rule
§ Victor v. Sperry, 4th District California, 1958 (485) à no longer the law in California
·         Car accident in Mexico, P and D residents of California
·         Mexican law applied
·         Note if interest analysis à California law applied
o    Law of the place of the Contract (Lex Loci contracti)
§ 2 schools of thought on K formation: (1) unilateral (2) bilateral
§ Millikin v. Pratt, Sup Jud Ct Massachusetts, 1878 (493)
·         Mass. law at the time: K’s which a married woman was party are unenforceable
·         Mass: D’s reside, K signed there, P lender in Maine
·         Lex Loci contracti à contract formed in Maine, so valid
§ Louis-Dreyfus v. Paterson Steamships, (2nd Cir, 1930) [496] ·         Both US and Canada favored limiting liability
·         Canadian law applied à matters of performance, the law of the place of performance controls
§ Seaman v. Philadelphia Warehouse (SCOTUS, 1927) [497] ·         Usury laws capped the rate of interest lower in NY than PA
·         Validity of K upheld; if okay in either place of making or performance then valid
o    Not a typical conflicts result
o    Put it in context, 1927, the court did not want to chill the market for $
·         Note – post-Civil War, the National Bank Act provided preemption of state usury laws w/ federal usury laws
§ Kinney Loan v. Sumner (Nebraska, 1954) [497] ·         Loan valid in Colorado, invalid in Nebraska, but exception in Nebraska statute to respect loans made in other states è loan valid
o    Law of the place of the Property (Lex Loci rei sitae) – law of the situs
§ Sinclair v. Sinclair, Sup Ct of NH, 1954 (499)
·         The descent of real property governed by law of the state where property is located
·         Since the law of the situs controls, the domicile of the intestate is unimportant
·         NH law applied to determine what share of NH real estate awarded to the Vermont widow, even though she would receive larger share of value of real estate than she would under domiciliary administration in Vermont.
§ Craig v. Carrigo (Arkansas, 2000) [501] ·         Arkansas has a pretermission statute à kids left out the will are taken care of
·         Voided the will in terms of real property
§ Toledo Society for Crippled Children v. Hickok, Sup Ct Texas, 1953 (502)
·         Hickok of Ohio, less than a year before dying, executed a will with a trust where income is paid to his widow & children for 20 years, then corpus should be divided into 5 parts and be distributed to certain charitable or religious organizations
o    Some of the trust consisted of land and minerals in Texas
o    The widow & children wanted to have testamentary gifts declared invalid
·         The lower court ruled that the gifts to such organizations were invalid under Ohio statute becaus

Maryland law applied à coverage not available, because of exclusion in K
·         Contra proferentum – Is the K ambiguous?
o    Illinois – yes
o    Maryland – no à exclusion in K à no coverage
§ University of Chicago v. Dater (Michigan, 1936) [519] ·         Debts of husband, can they be guaranteed by the wife? –No
·         Michigan à Illinois à Michigan law: lack of capacity
o    Public Policy
§ Ex: Objections to the Arizona immigration bill are either constitutional or public policy
§ Kilberg v. Northeast Airlines (New York, 1961) [519] ·         Airplane crash, which law? P’s home or crash site?
·         NY – P’s home; Mass – site of accident w/ $15,000 damage cap
·         NY court did not like the cap, applied NY law for damages
§ Alexander v. General Motors (Georgia, 1996) [521] ·         Georgia, Virginia have different rules on whether to apply strict liability
·         A dangerous move by GA to veto VA just because it thinks its law is superior
o    Insurance industry in general
§ Wants to keep State law
§ McCarran-Ferguson Act explicitly states that there is no federal preemption
o    Equitable Conversion
§ 3 classic sidesteps:
·         K (in personam) vs. Conveyance (in rem) – how do you characterize the transaction?
·         Promissory note vs. mortgage (in rem)
·         Covenants that (a) are personal vs. (b) run w/ the land
·         The New Era
o    The Choice of Law Revolution 522-532
§ 3 modern approaches – 1, 2 more important
·         Currie – Interest Analysis
o    Currie – academic, very influential, but actually wrote very little
o    States have interests in having their laws applied – what does that mean?
o    Essential approach in:
§ CA – comparative impairment
§ NY – interest analysis
o    Criticisms
§ No place for federal government, only state vs. state
§ Encourages forum shopping
§ No substitute rules
·         Rest 2d – Significant Contacts
o    Not too keen on Currie’s views (More subtle than Currie’s approach)
o    §6 – the guts of the Restatement
o    No rules given for which law is applicable to a case; instead
§ Lays down the law for each issue à dépeçage (go issue by issue)
§ Example of dépeçage: Haumschild v. Continental Casualty
·         Leflar – Better Law
o    Not adopted by any state
o    What does “better” law mean?
o    To be used when there are so many variables that it is impossible to decide what to do à just pick the “best” law
§ Rationis v. Hyundai (485) – Korean law applies à Korea has greater interest than any state
§ Gordon v. Parker, (US Dist Ct Massachusetts, 1949) [489] ·         Interest analysis in 1949 – very early for this
·         Tort of alienation of affections à per se tort, no proof of damages needed
·         Action by PA husband against alleged MA paramour for alienation of affections on account of conduct within MA could be maintained in MA, though matrimonial domicile was in PA and PA had by statute abolished civil cause of action for alienation of affections
·         Note – Williams v. Jeffs (2002) – opposite result; most significant relationship test
o    Adopting New Choice of Law Rules 532-567
§ Auten v. Auten (New York, 1954) [536] ·         Center of gravity approach. Divorce K in NY, Husband/Wife from England
·         English law applied
§ Babcock v. Jackson (New York, 1963) [532] ·         1 car accident in Canada, everything else pertains to NY à NY law