Conflicts of Law Outline
Prof. Roosevelt
Fall 2011
· Introduction
o Legislative Jurisdiction – when a state can assert its authority over a person/event and say that its law determines the consequences
o Reasons to apply your own state’s laws
§ Predictable (once the suit is filed)
§ Judges are good at applying local law
§ Avoids unfair surprises (sort of)
§ Promotes local policies
o Reasons to follow another state’s laws
§ To do otherwise disrespects sister state polices (Full Faith & Credit Clause issues)
§ The alternative would unfairly surprise defendants (Due Process Clause issues)
§ Unpredictable (at the time of the action)
§ Not applying the other state’s law would lead to forum shopping
o Different approaches to choice of law
§ Traditional
· Territorialism – laws of the state have force within it, but not outside it
o Comity – reciprocity among mutually respectful sovereigns
o Vested rights -common law notion that vested rights pre-exist a judge’s determination; this comes crashing down with Erie and legal realism (rights don’t vest; judges recognize and even create them)
· Scott, A Man of Color v. Emerson (S.Ct. of Missouri, 1852)
Missouri
Illinois
Internal Law
Slavery is permissible
Slavery is prohibited (fugitives – returned; travelers – not free; sojourners (there for indefinite period of time – free)
· so the difference is domicile
Choice of Law
For status issues, apply the law of the state where status time was last changed
o Forum is MI
o The forum always starts by consulting its own choice of law rules
o Traditional rule for status cases is the law of the forum where the status last changed should be applied; so here the Missouri court should have applied Illinois law and said it was free
o Question becomes whether slave has acquired an Illinois domicile or not.
o Probably the answer is yes since he was there for two years
· Licra et UEJF v. Yahoo! Inc. (Tribunal de Grande Instance de Paris, 2000)
o Yahoo sued by LICRA and UEJF for having objectionable content on their auction site (Nazi paraphernalia, etc.), in violation of French law
o French court applies their own law on the theory that the harm was caused in France; orders Yahoo! to take all reasonable steps to remove the objectionable content
o This doesn’t mean that the judgment will be enforced by U.S. courts
· Yahoo!, Inc. v. La Ligue Contre le Racisme et L’Antisemitisme (N.D. Cal. 2001)
o Yahoo! brought suit in federal court seeking a declaratory order that the French judgment couldn’t be enforced b/c the only way to comply would be to remove the content from their main site, which the 1st Amendment prohibited
o Extent to which the U.S. honors the judicial decrees of foreign nations is governed by the comity of nations; U.S. courts will recognize a foreign judgment unless enforcement would be prejudicial or contrary to the U.S.’s interests
o On appeal 9th Cir. vacated district court decision on the grounds that the court lacked personal jurisdiction of LICRA
I. Choice of Law
A. The Traditional Approach
o Still followed in about 18 states
o Location of the forum doesn’t matter, nor does the domicile of the parties; all that matters is where the tort is committed or where the K is accepted
o Emphasis on rules and limits judges’ discretion, but there are still escape devices
o Every states laws have force within that state and not outside of it à within the border of any state only have one set of laws in effect, and it is the local laws
· Traditional approach for torts
o Alabama Great Southern R.R. Co. v. Carroll (Ala. 1892)—Lex loci delicti; apply law of the last act necessary to complete the tort, in this case the place of injury. Example of case where traditional rule gets bad result, because it’s surprising.
§ Facts
· P is a brakeman for R.R. (AL Þ MS). Injured in MS due to the Alabama negligence of coworkers.
· P—AL; D—AL; RR goes from TN to AL to MS and 90% of tracks are within AL; K formed in AL; negligence occurred in AL; forum—AL; Injury – MS
§ Law
· AL – can recover against RR
· MS – can’t recover against RR
§ Localizing rule under the traditional approach is the last act rule – where the last act necessary occurs; here it is where the injury occurs – lex loci delecti – so the courts apply MS law and so P can’t sue
· Exceptions, even under the Restatement, to the last act rule
o Standard of care – standard should be taken from the law of the place of the actor’s conduct
o 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
Lex Loci Delicti
Pro
Con
Most of the time it might be sensible
Sometimes it is arbitrary and only takes into account where the last act occurs
Doesn’t allow forum shopping; uniformity
Might not be uniform if not all states follow LLD
Predictable
Gets legislative intent wrong
Easy to apply (although not always, e.g. latency period for drugs)
Expresses the sovereignty of the state
Opens the door for selfish states
· Traditional approach for contracts
o Milliken v. Pratt (1878)—Lex loci contractus; apply the law of the place where contract is accepted.
§ Facts
· D is wife who signed $500 guarantee in ME. ME P’s are suing her to collect a debt but she defends by saying K is void. Unilateral contract, its performed (and thus accepted) in ME.
· P – ME; D – MA; K – ME; Forum – ME
§ Law
· ME
o Contract is valid, because wife can make it
· MA
o Contract is invalid
§ Holding
· Court finds that ME law applies
o Last act rule for K is where the contract is formed i.e. where it is accepted
o LLC is different from Law of Domicile (regulations on capacity follow person everywhere)
§ For Domicile: State is best acquainted with its citizens and can best judge who’s competent to make a K
§ For LLC: Increased business/travel makes it more convenient; protects business expectations
o 1934 Restatement
§ Law of the place of contracting determines the validity and effect of a promise
§ Duty for the performance of which a party to a K is bound will be discharged by compliance w/ the law of the place of performance of the promise
§ In determining the place of contra
se in order to hold rental agency liable since liability accords with state’s policies.
o Facts
§ D, a car rental agency doing business in CT, there rented a car to Sack. The P, Levy, was a CT resident who was a passenger in the car. He was injured due to Sack’s negligence, with the injury taking place in MA.
§ P – CT passenger; D – CT rental agency; Forum – CT; Driver – CT; Accident – MA
o Law
§ CT
· Imposes vicarious liability on rental agencies for injuries caused by the negligent operation of their vehicles; rental agency liable
§ MA
· Has no such statute; rental agency not liable
o Holding
§ Court characterizes this as a contract claim, not a tort, and so says that P has a right of action even though the injury was in MA, since the K was accepted in CT.
· The purpose of the statute is to protect the safety of the highways by giving rental companies the incentive to only rent to competent drivers
· Statute made liability a part of every K in CT and such liability arising out of the K depends on the law of the place of K, unless the K is to be performed elsewhere
§ Here characterization is being used as an escape device – this case is structurally the same as Carroll but the court is saying it is a contract claim to avoid the arbitrary result
§ Characterization will always be necessary under the traditional approach and any other approach that has different rules for different types of cases (and the traditional rule doesn’t tell you how to characterize)
o KR:
§ What if this was a purely domestic case?
· Characterization does not pose the same sort of problem. A P can plead both a tort and a K cause of action. He may in fact be able to state a claim on both theories, though he will not be allowed duplicative recovery.
· KR suggests similar approach can be used in multistate case. P can invoke whatever rights a state’s law gives him. Need not characterize case to decide what rights are available. Need only ask if P can state a claim on a given theory under a given state’s law.
· So appropriate question in Levy, is actually “can Levy state a claim under any law, on any theory?”
o No tort MA claim since no vicarious liability (why they re-characterize it)
o No tort claim under CT law, under LLD it is not available for injuries suffered outside CT
o No K claim under MA law, since K made in CT
o Yes K claim under CT
· Haumschild v. Continental Cas. Co. (Wis. 1959) – Court uses depecage and characterization as escape devices. Here gets the “right” result though.
o Facts:
§ Wife sues husband/insurer for his negligence in a car accident
§ P – WI; D – WI; Accident – CA; Forum – WI
o Law:
§ CA
· Forbids tort actions among spouses
§ WI
· Allows tort actions among spouses
