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Conflicts of Law
University of Kentucky School of Law
Davis, Lujuana S.

Conflict of Laws—Outline


A. Conflicts of Intrastate Authorities

a. Statutist approach: We interpret the statute to see how it is applied

b. Common law principles: What have the cases said?

c. Public Policy: Where is the appropriate location for the exercise of authority? Power of the sovereign à power of the legislature over the power of the judiciary

d. Content of the principles themselves à who are the beneficiaries of the law, who should be the beneficiaries of the law

e. Precedent/Notice/Predictability à How will a change in the law affect behavior

f. Uniformity

g. Fairness

h. Timing: Which rule is the oldest

i. Limitations (Constitutional)

First Restatement Method

A. Characterize the Issue as Procedure or Substance

a. Analysis

i. Characterization of an issue as procedural or substantive will depend on the analysis of the forum court

ii. Legislative intent

iii. Treatment by the other jurisdiction

1. Does the other jurisdiction treat this as procedural or substantive

2. Restatement characterization

a. § 584—Forum court determines whether a given question is one of substance or procedure

b. § 585—All matters of procedure are governed by forum law

c. § 592—PLEADING and COURT CONDUCT: Forum

d. § 594—JURY TRIAL v. JUDGE TRIAL: Forum

e. § 595—PROOF OF FACTS & PRESUMPTIONS and INFERENCES to be drawn from evidence: Forum

f. § 596—COMPETENCY and CREDIBILITY of witnesses: Forum



i. § 604—If FOREIGN SOL is shorter FORUM SOL may apply

j. § 605—Law of CREATING state a TIME LIMIT is placed on THE RIGHT ITSELF then NO ACTION begun after that period may be heard in ANY STATE

k. § 606—Forum state CAP on DAMAGES applies even if no similar cape in foreign state.

iv. Prior treatment: evolution of rule

v. Analogies—Statutory treatment of similar issues

1. Grant v. McAuliffe:

a. Wrongful death statute treated as substantive because a new cause of action or a new right is created.

b. Statute of Limitations: Like a survival statute because it defines the point in time in which the cause of action lapses.

vi. Characterizations in other contexts—Focus on the nature of the problem

1. Grant v. McAuliffe

a. Survival statute was treated as substantive for purposes of retroactivity

i. But the nature of the problem is more important than when how it was characterized in another context

vii. Merits

1. Rights affected not essential to the cause of action

a. Right v. Remedy: Grant v. McAuliffe the substantive rights of the cause of action were not affected, just the way in which damages are assessed.

b. Kilberg v. Northeast Airlines

i. Damages ceiling affects the remedy not the right

2. Law’s purpose—Local vs. Foreign—Importance of Domicile

a. Like in Grant v. McAuliffe the survival statute was more a local administrative rule

b. However, if the suit were in Arizona this wouldn’t be considered an administrative rule

3. Efficiency of judicial machinery

4. Larger policy issues: Compensatory v. Deterrent effect

a. Kilberg v. Northeast Airlines

i. New York court decided that it needed to protect its citizens and therefore refused to apply the damages ceiling that would be applied under Massachusetts law.

viii. Statute of Limitations

1. Procedural

law of the “place of acting” should not be held liable for consequences in another state.

3. Poison: the place where the poison takes effect

4. Harm to reputation: Place where the defamatory statement is communicated (Penthouse case) court applied law of place of domicile because this is where the greatest harm occurs.

5. Invasion of privacy: Law of the place plaintiff was located when he was offended

b. Contracts (Default rule: Choose the law the validates the contract)

i. The Questions: Is this a contract validity issue or a performance issue?

1. If it is validity issue then the place of contracting is the proper jurisdiction

2. If it is performance then the place of performance is the proper jurisdiction

ii. Determining the Place of Contracting

1. The forum determines the place of contracting under the general Law of Contracts. The forum determines the facts only far enough to determine the PRINCIPLE EVENT, then the forum looks to the law where that principle event took place to determine the validity.

2. Restatement sections

a. Formal Contract

i. When made formal upon delivery the place of delivery is where the contract is made

b. Informal unilateral contract

i. In the case of an informal unilateral contract, the place of contracting is where the event takes place which makes the promise binding.

c. Informal bilateral contract