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Conflicts of Law
University of South Carolina School of Law
Kuo, Susan S.

Conflict of Law Outline

Kuo – Fall 2016

Introduction

Choice of Law – Choosing between the laws of the states
Policy that governs choice of law

Predictability
Interstate harmony
Forum state interests
Substantive policies
Ease of administration and judicial efficiency
Uniformity and avoidance of forum shopping
Better law or justice

5 Major US Approaches

(1) 1st Restatement
(2) 2nd Restatement (most popular among the states)
(3) Interest Analysis
(4) Comparative Impairment
(5) Better Rule of Law Approach

This is the most popular choice among scholars

The 1st Restatement Approach (The Traditional Approach)

Overview

Goals of the 1st Restatement

(1) Uniformity of Results
(2) Enhanced Predictability
(3) Discouraging Forum Shopping

This approach is territory focused

It looks to the place where a particular event occurred, and applies the law of that place

Step-by-step method

(1) Identify the multiple states that have contacts with the parties and identify the relevant laws of these states that are in conflict
(2) State the issues as to which the laws conflict
(3) Characterize the issue (tort, contract, etc.) and find the rule applicable to the characterized issue
(4) Apply the rule and locate the law to be applied to govern the issue
(5) Exceptions

Public policy
Penal law (all crime is local)

Weakness of the 1st Restatement

Assumes only one state has an interest, and that there is always a winner state and a loser state

Torts

Carroll
General Rule – Place of Wrong (§ 377) – Territorialist view

The place of wrong is in the state where the last even necessary to make an actor liable for an alleged tort takes place

The place of wrong is the place where the harmful forces take effect upon the body
Examples

Poisoned

Where the poison takes effect

Harm to chattel or land

Where the force takes effect

Defamation

Where the statement was said

Last Act Rule

Injury is the last essential element of a tort claim – so go with the place of injury

Vested Right Approach

Called this because upon the happening of a particular event, the parties vested rights at that time and place, under the law of the governing place

Therefore, the law where the right was vested must govern
Also, when your right vests, it follows you everywhere

You can bring that suit in any state with jurisdiction, and those states are supposed to enforce that right

Contract

Milliken

Forum used its own law to determine the type of contract to determine the place of contract

Presumptive Rule

If the issue deals with contract validity:

The rule is “place of execution”

Lex loci contracti – the place of contracting
The place where the final act was done which made the promise(s) binding

If the issue deals with contract performance:

The rule is that the place of substantial performance of the contract has its laws apply

Typically, where the parties are domiciled does NOT matter when dealing with contracts under the 1st Restatement

Property

Barrie’s Estate
General Rule

Depends on whether the property is moveable or immovable

If immoveable:

The law of the state in which the property is located governs (the situs)

If moveable:

The la of the state where the property was at the time of the contract/event governs

Situs Rule

When applying the rule of the situs, you apply that state’s whole law

You apply the whole law of the situs, including their choice of law rules
You are trying to do exactly what the situs would do

Exception

upon is so interconnected with the limitation that the limitation is thought to extinguish the right rather than only barring the remedy
Test:

Was the limitation “directed to the newly created liability so specifically as to warrant saying that is qualified the right?”
If so, it is substantive and the forum applies the other state’s statute of limitation

Modern Trend

It is moving towards treating all statute of limitations as substantive – thus applying the statute of limitation of the other state

Borrowing Statutes

Apply the law of the forum where case comes from if its shorter
“Foreign law or forum law, whichever is shorter.”

Most jurisdictions will not borrow a longer SoL

2nd Restatement approach:

For borrowing statutes, apply the SoL statute from the state with the most significant relationship to the case

Renvoi

See slides at back of outline

Exceptions to the 1st Restatement General Rules

(1) Public Policy

It must be a “deeply held” public policy for the exception to apply
Loucks

For a court to refuse to enforce the law of a sister state, the law must violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the commonwealth
It is NOT enough for the two laws to merely be different

Holzer v. Deutsch

It is NOT against public policy to hold foreign nationals to their own foreign law which they chose to have govern