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

Conflicts of Laws Outline
Prof. Kuo
Fall 2017
 
Introduction
Conflicts of law exist where more than one potential legal authority could apply
Contacts with two or more jurisdictions
The laws of those jurisdictions will differ with respect to at least part of the case.
Five Traditional Approaches to Choice of Law
First Restatement
Interest Analysis
Comparative Impairment
Better Rule of Law (only adopted in six jurisdictions
Second Restatement
The two underlying themes of this course:
Comity
Comity—do unto others; Voluntary acceptance of another forum’s law by the forum presiding over the case.
Comity is not so much about kowtowing down, but negotiating under the assumption of future reciprocity
Forum A accepts Forum B’s law so that Forum B will accept Forum A’s law in the future.
Comity is political, so it was rejected by the drafters of the First Restatement who wanted to create a system of rules to apply to every situation
Sovereignty
Inherent power of a government to control the people and their affairs within their territory
A State’s rights to determine behavior for themselves
Looks to the location of various critical acts (where)
Vested rights approach looks to the expectation of the parties, but the parties may have different expectations
These two themes are in constant tension
Desire for self-rule, but there is also a recognition that we have to live harmoniously
Rationales for Choice of Law Provisions
Each state has its own interests in having the laws they create apply
Pragmatic
Political
The Traditional Approach to Choice of Laws
Alabama Great Southern R.R. Co. v. Carroll [7] Facts: Plaintiff is an employee of the defendant and a citizen of Alabama. Defendant is an Alabama Corporation, operating a R.R. extending from TN through AL to MS. At the time of the injury, Plaintiff was employed as a brakeman for Defendant. A link between two cars broke, and the plaintiff was injured while the train was in MS. Evidence showed that the link that broke was defective. Evidence also showed the link to be defective at the time when the train left AL for MS. π sued in AL court arguing AL law for an injury occurring in MS
Reasoning: π could not apply AL law. MS law governs.
MS observes the Common Law Fellow Servant Rule—if a person is harmed by the actions of his fellow servant and not the master he cannot sue.
AL has the Employer Liability Act, which if π could get AL law to apply would provide him a remedy.
Rule: There can be no recovery in one state for injuries to the person sustained in another, unless the infliction of the injuries is actionable under the law of the state in which they were received.
Rule: The governing substantive rule is derived from the law of the place where the relevant events occurred.
The Court determined that whether a π has a COA is determined by the law of the state at the time when and where the accident occurred.
AL Employer Liability Act was only meant to apply to incidents arising in AL—not meant to apply
Π then made a contract argument where he argued that because the Contract was made in AL, it included the laws of AL, and thus the Employer Liability Act followed the actions of the employee to any state he was working in.
Court determined that the K did not incorporate all of the laws of AL. Only evinced the fact that there was an Employer/Employee relationship.
First Restatement and Torts
Lex loci delecti
Place Centered Approach
Goals:
Uniformity of Result
Enhanced Predictability (and thus protection of reasonable expectations)
Discouragement of Forum Shopping
Themes
Sovereignty expressed in territorial issues
Predictability
Provide Neutral or Fair Rules
Strengths of First Restatement
Neutral/Fair
Jurisdiction Selecting
Weaknesses of First Restatement
Promise of one right answer
The attempt to have a straight and direct answer by having clear, bright-line rules has created several gaps in the rules.
Territorial Approach to Choice of Laws: Expression of self-determination; sovereignty; states have an interest in having their laws apply for the protection and compensation of their citizens.
Asserts territorialism or a preference for a state’s own law.
Weakness of territorialism is that it assumes that there is only one jurisdiction with important ties to the case (assumes that only one territory has an interest).
Restatement First § 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
Regulatory Rules are an exception to the last act rule
The law that is applied is the law of the land where the care or regulation should have been completed. In other words, the law of the State where the standard of care should have been observed, but was not applied.
Poison is another exception: You apply the laws of the state where the poison takes effect, not where the injury necessarily occurs
Last Act Rule: Where the last act necessary to have the incident occurs, is the territory’s law to apply (identifies the place of wrong)
Vested Rights Approach
“As a man is said to have rights to his property he can equally be said to have property in his rights.” James Madison
Protect Reasonable Expectation
Natural Law—exists for all humans; inalienable rights
Acknowledge rights—not created
The First Restatement and Contract Law
Restatement First of Conflicts of Laws § 322 / §332
Rule: The law of the place of contracting determines the validity and effect of a promise with respect to:
Capacity to contract (Milliken)
The necessary form, if any, in which the promise must be made
The mutual assent or consideration, if any, required to make a promise
Any other requirements for making a promise binding
Fraud, illegality, or any other circumstances which make a promise void or voidable;
Except as stated in § 358, the nature and extent which make a promise void or voidable;
The time when and the place where the promise is by its term performed;
The absolute or conditional character of the promise
Restatement First of Conflicts of Laws § 358
Rule: Law Governing Performance. The duty for the performance of which a party to a contract is bound will be discharged by compliance with the law of the place of performance of the promise with respect to:
The manner of performance
The time and locality of performance
The person or persons by whom or to whom performance shall be made or rendered
The sufficiency of performance
Excuse of non-performance
Where the contract was made is determined by the place of contracting. § 311 (Place of Contracting) provides “the law of the forum decides as a preliminary question by the law of which state questions arising concerning the formation of a contract are to be determined, and this state is, in the Restatement of this Subject, called the ‘place of contracting’”
Determination of the Place of Contracting: The Principle Event Rule
Under its conflict of law rules, in determining the place of contracting, the forum ascertains the place in which, under the general law of contracts, the principal event necessary to make a contract occurs.
§ 312. Formal Contract. Except as stated in § 313 [dealing with renewal of formal contracts], when a formal contract becomes effective on delivery the place of contracting is where the delivery is made.
§ 323. Informal Unilateral Contract. (Milliken) In the case of an informal unilateral contract, the place of contracting is where the event takes place which makes the promise binding.
§ 325. Informal Bilateral Contract. In the case of an informal bilateral contract, the place of contracting is where the second promise is made in consideration of the first promise.
Contracts over the telephone illustrate that the wording of the conversation has outcome determinative effects under the First Restatement. This does not appear to reflect the consistency and predictability sought by the first restatement.
§ 326. Acceptance Sent from One State to Another. When an offer for a bilateral contract is made in one state and an acceptance is sent from another state to the first state in an authorized manner the place of contracting is as follows:
(a) if the acceptance is sent by an agent of the acceptor, the place of contracting is the state where the agent delivers it;
(b) if the acceptance is sent by any other means, the place of contracting is the state from which the acceptance is sent.
However, Comment e points out that § 326 does not apply where an offer that stipulates that actual communication of consent to the offeror is required to constitute acceptance.
In this case the place of contracting is the place at which the acceptance is received in accord with the provisions of the offer.
Milliken v. Pratt [20] (the Place of Contracting Rule or lex loci contracti)
Facts: Plaintiffs are business partners from Maine, wh

ent was revoked, and Ms. Barrie’s property was distributed by intestate succession. When the Will was offered for probate in IA, the IA court refused to accept the IL probate court’s order in regards to the 160 acres of real property in IA.
Reasoning: IA law will govern the disposition of land in IA. The IL judgment that denied probate to the will is not binding upon the court in IA.
Rule: The common law (in the context of Conflict of Laws) that the law of the place where the property (speaking of immovable property) is located is to govern as to capacity or incapacity of the testator, the forms and solemnities to give the will or testament its due attestation and effect.
Rule: Upon the specific question of Will revocation, the revocation of a will is governed by the law of the state of situs of the land. Restatement §250 says the effectiveness of an intended revocation of a will of an interest in land is determined by the law of the state where the land is.
The court determined that it was not bound by the Full Faith and Credit clause to respect the IL probate order with respect to real property situated in a state that is not the state producing the order
The IA statute that grants comity to out of state wills did not apply because the statute did not expressly mention revocation.
This case is an exception to the general rule of enforcement of judgements. Court basically saying, “You can’t tell us what to do with property within our borders.”
Domicile
People can have multiple Residences, but just one domicile.
Domicile requires:
Fact of residence; Presence? (objective)
Intent to remain in a place (subjective)
There is no temporal requirement for domicile.
The forum will apply the forum’s law to determine a person’s domicile.
Today, many courts use a context-specific approach.
Courts are less apt to grant domicile when it appears that the individual is seeking to sue domicile for personal benefit.
Domicile is important for personal jurisdiction, diversity, state tax, community property, welfare benefits, etc.
The first restatement mentioned domicile in 33 different sections. Notably it provided that a husband and wife could have separate domiciles if the wife lived separately and was not guilty of desertion (§28). However, a wife’s domicile was typically that of her husband’s (§ 27).
Second Restatement generally takes a similar approach to domicile but makes an effort to eliminate disparity in the treatment of husband and wives (second restatement allows for a wife to take a domicile all her own if the marriage has ruptured, even if her fault).
The first restatement did not find that a person changed domiciles if the move was under physical or legal compulsion (think draft or people sent to jail).
The second restatement provides, “A person does not usually acquire a domicile of choice by his presence in a place under physical or legal compulsion.
The law that will apply to marriage is typically the law of celebration
Under the First Restatement, the legitimacy of a child at birth was determined by the law of the state in which the parent whose relationship is in issue was domiciled when the child was born
The law upon which corporations are bound is typically done by the state of incorporation.
 This includes:
Whether an association has been incorporated
The effects of an unsuccessful attempt to incorporate
The status and rights of shareholders
The liability of shareholders for assessments to pay corporate debts
 However, corporations are also limited by the law of the land they seek to profit from.