Laura Cooper- Conflicts of Law- Fall 2016
Choice of Law Methods
The study of conflicts of laws center on disputes and transactions that have legal implications involving more than one sovereign
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THE FIRST RESTATEMENT
Based on the vested rights theory, the system consists of a few broad, hard and fast rules, coupled with an array of escape devices
Result of a dissatisfaction with “comity”; the respect that one sovereign owes another
Comity conflicted with the territorial dogma that no law could have any effect outside the territory of the sovereign that promulgated it
Comity allowed too much rein to judicial discretion; seemed to suggest that a judge was free to decide on his own whether justice and convenience required the application of foreign law
Vested rights theory
When an event occurred in a foreign territory, a right was created
Because the only law that could operate in the foreign territory was the law of the foreign sovereign, the existence and content of any such right was determined by the foreign law
The forum court simply enforced the right which has vested in the foreign territory according to foreign law
Jurisdiction selecting rules: pick between competing states, not between competing rules; concerned only with identifying a particular event and the jurisdiction (state) in which that event occurred
The court does not consider the scope, content, or policy of the substantive rule until after the state is chosen
Thus, in making the initial choice, the First Restatement rules are not concerned with:
which substantive rules is “better”, or
which validates the parties intentions, or which is motivated by, or
Which is motivated by a policy that can be advanced by its application in this case
TORTS
The First Restatement specifies the law of the place of wrong for nearly all issues in tort
According to § 377, the place of wrong is “in the state where the last event necessary to make an actor liable for an alleged tort takes place”
In almost all circumstances, the “last event” is the injury to the plaintiff, so the “place of the wrong” really means the place of injury
“Look for blood”
Typically, is does not matter that defendant's conduct may have occurred in another state
Example: Defendant standing in state A shoots plaintiff standing in state B, the law of state B applies
Example: Defendant negligently manufactures a product in state A which injures a plaintiff in state B, the law of state B applies
Challenges with the place of injury; place of injury may be difficult to locate if:
The injury is not physical (e.g. invasion of privacy)
The injury occurs in multiple locations simultaneously (defamation)
The injury occurs over time and may be difficult to locate both in time and place (Agent Orange: slow acting toxins: genetic deformities)
·Alabama Great Southern R.R. Co. v. Carroll (1892)
FACTS:
Plaintiff, company headquarters, employment contract, place of negligence, forum: Alabama
Place of injury: Mississippi
Alabama has an employer liability statute; Mississippi does not have an employer liability statute
According to § 384:
If a cause of action in tort is created at the place of wrong, a cause of action will be recognized in other states
If no cause of action is created at the place of wrong, no recovery in tort can be had in any other state
According to § 377, the place of wrong is “in the state where the last event necessary to make an actor liable for an alleged tort takes place”
·Exceptions:
Massachusetts
New Hampshire
Employer
Injury
Strict Liability for Employers
Liability for Employer Negligence
o § 387
When a person authorizes another to act for him in any state and the other does so act, whether he is liable for the tort of the other is determined by the law of the place of wrong.
Comment: In order that the law of the state of wrong may apply to create liability against the absentee defendant, he must in some way have submitted himself to the law of that state. It is sufficient if he has authorized or permitted another to act for him in the state in which the other's conduct occurs or where it takes effect.
Thus, if A, in state X, authorizes B to act for him in state Y and B does so act, A is thereby subjected to the Y law. If, in acting in Y, B injures som
lity for parties
Promote more democratic law making
Uniformity
Respect for sovereignty of the other states
Limits forum shopping
Recognizes the significance of place (intuitively relevant; controlling here) Disadvantages of “jurisdiction-selecting” choice of law method:
Ignores other places, as well as other relevant considerations
Possible unfair outcomes, when place is significant to the case
Limits judicial discretion when warranted, as to avoid a less favorable outcome for the case
Ignores the interstate complexity of people, goods, communication, etc.
Ignores state interests (undermining Alabama interest without serving the interests of Mississippi)
May require states to apply unfamiliar laws
CONTRACTS
Place-of-making rule: § 332 directs that the law of the place of making controls such issues of contract validity as capacity, formalities, consideration, and defenses
MAJOR EXCEPTION: § 358 directs that the law of the place of performance controls such issues of contract performance
Examples: manner of performance, time and place of performance, the persons by and for whom performance shall be rendered, the sufficiency of performance, and excuses for non-performance
§ 311, comment d indicates that the place of making is the place where “the principal event necessary to make a contract occurs”
Formal contract: § 312 directs that the principal event is delivery
Milliken v. Pratt (1878)
FACTS:
Husband, a Massachusetts domiciliary, sought to purchase goods on credit from plaintiffs, domiciled in Maine
Before extending credit to the husband, plaintiffs required him to obtain a guarantee from his wife
She executed a written guarantee from Massachusetts, and husband mailed it to plaintiffs in Maine
Plaintiffs then sold goods to the husband on credit
