CONFLICTS OF LAWS
Professor Kuo
Fall 2008
Introduction – there are five major choice of law theories: (1) The First Restatement Approach; (2) Interest Analysis; (3) Comparative Impairment; (4) The Better Law Approach; and (5) The Second Restatement.
Comity – is voluntary acceptance of one forum’s law by another forum as long as that forum would return the favor if things were reversed. This is a political concept that was rejected by the drafters of the First Restatement in an effort to come up with a more “black letter” law that was less flexible.
Sovereignty – is the power of a territory to control people, places, and things that are within its borders. It is the power of a state to behave in a way in which it is free from external restraints
One way of looking at alternative methods of choosing the applicable law is to distinguish between jurisdiction-selecting systems on the one hand and content or policy selecting systems on the other. Jurisdiction selecting systems choose a state whose law will be applied, regardless of its content or motivating policy. By contrast, content-selecting systems focus on the policy behind competing substantive laws in making the choice of law decision. The First Restatement used jurisdiction selecting rules. The rules prescribed a jurisdiction whose law was to be invoked once the problem had been properly characterized. The many varieties of interest analysis, on the other hand, are content-selecting systems—choice of law decisions in those systems are functional, in that they seek to assess the impact of a choice on the goals of the substantive law. Even though the First Restatement and interest analysis are polar opposites, there are intermediate positions out there as well—one illustration is the Second Restatement, which combines presumptive jurisdiction-selecting rules with statements of concern which can be used to focus on policy considerations
The Big Picture/Dred Scott Case and Scott v. Emerson
The First Restatement – the goals under the First Restatement are certainty, predictability, and discouragement of forum shopping through more concrete choice of law rules
Territorial Approach – is the theory upon which the First Restatement approach is based; this theory looks to the location of various critical acts (in other words, it is mainly concerned with the “where” question).
Vested Rights and Torts – the vested rights approach looks to the expectation of the parties in determining which law will apply
Alabama Great Southern RR v. Carroll – the parties in this case were from Alabama, and the contract of employment had been made in that state. While working on a train running from Alabama to MS, the plaintiff was injured as a result of the negligence of a fellow servant. The negligent act occurred in AL, but the plaintiff’s injury happened in MS. The plaintiff filed suit against the railroad in AL, and the defendant argued that under the law of the place of injury (MS), the fellow servant rule provided a complete defense. The plaintiff tried to argue that the AL workers compensation statute which abolished the fellow servant defense, had become part of the contract of employment which gave rise to the claim sued upon and therefore AL law should be applied as the law of the place of the making of the contract. The court then characterized the case as a tort case and applied the law of MS in favor of the defendant.
Contracts Under the First Restatement – before the First Restatement, jurisdictions were divided over the proper choice-of-law rule to govern the validity of contracts. There were three main principles: (1) the validation rule, which held that the validity of a contract is controlled by the law that the parties presumably intended to govern their dealings; (2) the place of performance rule; and (3) the place of making rule. Professor Beale rejected the first two and settled on the third one because he thought it was required by the vested rights theory. Section 323 of the First Restatement adopts the place of making rule which controls issues of contract validity (capacity, formalities, consideration, and defenses) which can all make the contract void or voidable. Section 311 defines the place of making as the “place where the principal event necessary to make a contract occurs”
Milliken v. Pratt – this case illustrates the working of the place of making rule. In this case, a husband, who was a MA domiciliary, sought to purchase goods on credit from the plaintiffs, who were merchants domiciled in ME. Before giving credit to the husband, the plaintiffs made him get a guarantee from his wife. The wife executed a guarantee at her home in MA and then the husband mailed it to the plaintiffs in ME. The plaintiffs later sold goods to the husband on credit, but the husband didn’t pay for them, so the plaintiffs sued on the guarantee in a MA court. In MA, a married woman cannot guarantee her husband’s debts because she could not contract. The court applied ME law and found in the plaintiffs’ favor because it said the contract was unilateral and completed in ME when the plaintiffs sold the goods on credit to the husband in reliance on the wife’s guarantee.
Property Under the First Restatement – the First Restatement follows the “situs rule” to nearly all questions concerning interests in land (conveyances, adverse possession, mortgages and liens, marital property, trusts, succession by will and intestacy) The situs rule simply states that the court will apply the law of the situs (or location) of the land. The reasons for this are that only situs courts can directly affect title to situs land, and because of recording statutes—title searches should be made as simple as possible and land effects should therefore be controlled by the situs.
In re Barrie’s Estate – the defendant died domiciled in IL, owning real property in IO and personal property in IL. Her will was denied probate in IL because she revoked it by cancellation. One of the testamentary beneficiaries later offered the will for probate in IO. The decedent’s heirs objected to that probat
ure – a subset of the characterization problem involves the choice between substance and procedure. Under the traditional approach, procedural problems were controlled by forum law; substantive issues were determined by the law of another jurisdiction. This made labeling the cause of action a very important (although still partially intuitive) game. The dichotomy between substance and procedure arises because the forum has strong reasons for seeing its law applied to issues concerning pleading, motion practice, the presentation of evidence, and so forth. There are really two interests at stake: (1) the forum’s own substantive policy may be implicated, at least on some “procedural” issues and (2) the need to protect scarce judicial resources by ensuring that the law of another state need not be considered on every point that might arise at trial. Forum interest and convenience should dictate the classification of an issue as “procedural.”—in other words, if neither forum’s interest nor judicial convenience is involved, no reason exists to treat the problem as “procedural”—the focus should be on whether the reasons which gave rise to the substance/procedure distinction are involved in the problem, not on the judge’s vague intuition or on a precedent which addressed the issue in a different setting and is, therefore, a questionable application.
Grant v. McAuliffe –
Statutes of Limitations – are usually classified as procedural rules, however, the procedural classification depends on the notion that the running of the limitations period affects only the remedy and not the right. If the foreign right and limitations period are found to be closely linked, however, then the limitations period will be styled “substantive” and foreign law will be applied to determine if the claim is time-barred. The hard part is trying to determine when the necessary connection is there—this is easy to determine when the limitations period is “built in” to the right—like when the two go together, such as wrongful death acts, where the limitations period and the right are created by the same legislative pronouncement—in those kind of situations it’s easy to argue that the limitations period was adopted as a device to limit the sweet of the substantive right that the statute created. When the limitations period and the right are not found together, the courts apply several tests to determine whether a particular provision is substantive:
