Conflict of Laws – Spring 2001, U of Iowa – Prof. Bohannon
I. Traditional Approach to Choice of Law
1. Territoriality is important. Sovereign state must have the power to govern people and events within its own state.
a) Fairness to D
3. Reasons for applying foreign law
a) Comity – states respect each other’s rights to govern events within themselves
b) Vested rights – plaintiffs can expect claims to hold water
c) Local law theory – rights don’t exist until a court makes them. So we must ask “what would the foreign court do?”
B. Single-Aspect Rules
1. In a tort action, the applicable substantive law is that of the jurisdiction where the event inflicting the injury itself occurs, not where the acts took place (Carroll – negligent acts took place in Alabama but injury occurred in Mississippi, so Mississippi law applies).
a) There are exceptions to this general rule. i.e., toxic torts
b) Restatement applies standard of care for state where act took place and prohibits liability for actors whose acts are justified under the law of the state where the act took place, even if injuries occur elsewhere (CB 15)
2. In contract cases, the law of the “place of contracting” controls.
a) Place of contracting determined by finding out where last act that bound parties occurred (Milliken).
b) Restatement uses “principle event” test (CB 20-21). Forum might apply general contracting principles rather than its own specific law ?????
c) Parties need to be sure of what law applies to K
d) Forum law determines the place of contracting
e) Place of performance will govern the performance, so long as it doesn’t affect substance of K (CB 25).
3. For property disputes
a) Law of the decedent’s domicile will govern matters concerning succession of movable goods
(1) Everyone has one and only one domcile, determined by
(a) Actual prescence, which is absolutely necessary (White)
(b) Intent to remain indefinetely
(2) Last domicile remains domicile until new one is established
b) Situs at time of transfer will determine law governing movable goods for inter vivos transfer
c) Law of Situs applies to immobile property (Barrie’s Estate – will no good in Illinois but land affected is in Iowa where will provision is valid so testators disposition is given effect).
1. Categorizing case affects choice of law (e.g., K, tort, property).
2. A statute might change the characteriz
eder – foreign rights in land would be controlled by domicile law due to foreign choice-of-law rules, so forum should apply domicile law)
2. One “loop” may be made to show deference to foreign choice-of-law rules.
3. Beale felt that foreign law’s only purpose was to vest rights, not to control choice-of-law. Cook and Lorenzen felt that forum should apply foreign choice rule if it dictated important rights.
4. A “remission” is a referral back to the law of the forum; A “transmission” in a referral to the law of a third state.
F. Proving Foreign Law
1. Burden is on P to plead and prove foreign law, which is treated as a fact (Walton). Ct. cannot be burdened with determining foreign law.
2. Alternatives to treating foreign law as fact include
a) Taking judicial notice
b) Assuming foreign law is same as forums
c) Certifying question to foreign court.
3. If foreign state has no law on point or law that is inadequate, forum might choose law of state that has closest connection to the case (Walton).