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Conflicts of Law
University of Pennsylvania School of Law
Roosevelt, Kermit

Conflicts of Law
Fall 2014
1.      Introduction
a.       Advantages of Applying Forum Laws
                                                  i.      Predictable (once the suit is filed)
                                                ii.      Judges are good at applying local law
                                              iii.      Avoids unfair surprises (sort of)
                                              iv.      Promotes local policies
b.      Reasons to follow another state’s laws
                                                  i.      To do otherwise disrespects sister state polices (Full Faith & Credit Clause issues)
                                                ii.      The alternative would unfairly surprise defendants (Due Process Clause issues)
                                              iii.      Avoids forum shopping
c.       Different approaches to choice of law
                                                  i.      Territorialism:
1.      A state’s laws apply to everything within its borders and nothing outside its borders
                                                ii.      Comity:
1.      Reciprocity among mutually respectful sovereigns
                                              iii.      Vested rights:
1.      Common law notion that vested rights pre-exist a judge’s determination
a.       This comes crashing down with Erie and legal realism (rights don’t vest; judges recognize and even create them)
2.      The Traditional Approach
a.       Introduction:
                                                  i.      Based on Territorialism
                                                ii.      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
                                              iii.      Limits judges’ discretion, but there are still escape devices
b.      Traditional Approach for Torts:
                                                  i.      Lex Loci Delicti
1.      “The law of the place of the wrong”
a.       The “place of the wrong” under the First Restatement is the “state where the last event necessary to make an actor liable for an alleged tort takes place.”
Fairly predictable and useable
Questionable implementation of legislative intent
No Forum Shopping
                                                ii.      Cases:
                                              iii.      Alabama Great Southern R.R. Co. v. Carroll: Ala., 1892.
1.      P = AL
2.      D = AL
a.       RR Tracks are 95% in AL
b.      Employment K signed in AL
c.       Negligent Conduct occurred in AL
3.      Injury = Miss.
4.      AL Law:  P can recover from RR
5.      Miss. Law:  P cannot recover from RR (fellow-servant law)
6.      Holding:
a.       Apply Miss. law because a tort is not complete until it is actionable
                                                                                                                          i.      Last Act Rule says the location of the tort is the location of the last act
b.      Miss. is where the last act occurred, so that is where the tort occurred, so that is what law is applied
                                              iv.      Note:
1.      Carroll is the perfect example of an arbitrary result from territorialism
c.       Traditional Approach for Contracts:
                                                  i.      Lex Loci Contractus
1.      “the law of the place of contracting”
a.       The last event necessary to the creation of contract rights is acceptance, so the place of contracting is the place of acceptance
2.      Note:
a.       Lex Loci Contractus is harder to apply than Lex Loci Delicti because where the injury occurs is a question of fact, but the place of K acceptance is a question of law
                                                                                                                          i.      SO
1.      Whose law determines the place of acceptance?
a.       Depends on state, depends on uni/bi-lateral L
                                                ii.      Cases
                                              iii.      Miliken v. Pratt: Mass., 1878.
1.      P = ME; D = MA; Forum = ME; K = ?
a.       D is MA wife who signed $500 surety to company in ME for her husbands potential debts
b.      MA Law: Contract is invalid (wives can’t guarantee their husbands debt)
c.       ME Law: Contract is valid
2.      Held:
a.       ME law applies, K is valid.
                                                                                                                          i.      The guarantee had been a unilateral offer (extend credit to my husband and I will guarantee his debt)
1.      Unilateral offers are accepted by performance, which was in ME
d.      Other Traditional Rules:
                                                  i.      Property
1.      The territorial theory places great emphasis on the law of the place where property is located, ESPECIALLY in the case of immovable as contrasted with movable property
2.      Immoveable
a.       Since interest in immovable property cannot be affected without the consent of the state of the situs, it is natural that the law of thestate of situs is applied by the courts of other states making decisions that effect it
3.      Moveable
a.       Generally governed by the law of its location at the time of the relevant events
4.      Cases:
5.      In Re Barrie’s Estate: Iowa, 1949.
a.       Iowa Supreme court held that IA property owned by an IL decedent should be distributed according to the terms of a will valid under IA law, even though an IL court had invalidation the will based on IL law
                                                ii.      Domicile:
1.      A man may go to many difference states during his life, but it is desirable that some of his legal interests should at all time be determined by a single law
2.      Cases:
3.      White v. Tennant: W.Va., 1888.
a.       White lived in WV then planned to move to PA.
                                                                                                                          i.      They got there, unloaded, but wife got sick so they stayed at manner house in WV.  Wife recovers, but White dies in WV.
b.      PA Law:  Widow gets half of estate (family gets the rest)
c.       WV Law: Widow gets the whole estate
d.      Holding:
                                                                                                                          i.      White was domiciled in PA, PA l

    Substance vs. Procedure
1.      A forum will always apply its own procedural law
a.       SO courts will avoid applying other state’s laws by saying that the law is procedural
2.      Substantive Law: 
a.       Concerned with what people do outside of court
                                                                                                                          i.      Creates a cause of action based on rights that exist everywhere
3.      Procedural Law:
a.       Concerned with what people do inside court
                                                                                                                          i.      How the rights created by substantive laws will be enforced
4.      Cases:
5.      Grant v. McAuliffe: CA, 1953.
a.       P = CA; D = CA; Injury = AZ
                                                                                                                          i.      AZ Law: Death of tortfeasor abates tort claim
                                                                                                                        ii.      CA Law: Death does not abate tort claim
b.      Holding:
                                                                                                                          i.      The survival of the D was a procedural issue “NOT an essential part of the cause of action itself but relating to the procedures available for the enforcement of the legal claim for damages.”
1.      BUT it is outcome determinative, which would suggest substantive law
c.       Note
                                                                                                                          i.      This makes no sense based on Lex Loci
1.      BUT it makes far more sense (logically) for CA law to allow a CA citizen to recover from another CA citizen when both CA and AZ believe they were wrongfully injured
                                                                                                                        ii.      This is BAD because it is a strategic deployment of the characterization argument (too open to judicial abuse)
1.      BUT at least it is in service of a sensible result
6.      Kilberg v. Northwest Airlines: NY, 1961.
a.       The NY court of appeals characterized a MA cap as procedural in order to allow full recovery for a NYer killed in a MA plane crash.
                                                                                                                          i.      “A damages limitation pertains to a remedy, rather than a right, and does not strictly effect the rule of damages, but the extent of damages.”
1.      SO procedural