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Conflicts of Law
University of Toledo School of Law
Richman, William M.

CHOICE OF LAW
1. Refers to whether, or to what extent, the forum will recognize and apply foreign law to resolve a case
2. Traditional System
a. Vested Rights (Gilberts 85-88; Understanding 179-182)
i. When an event occurred, a right was created
ii. The only law that could operate was the law of the souvereign
1. Govern all substantive issues in the case
iii. Forum court enforced the right which vested in the foreign territory according to foreign law
iv. Important to know when and where a particular right vested because that law would control
v. Two step analysis
1. Characterization- forum court must decide what type of case it is
a. Eg tort, contract, property, etc
2. Localizing the connecting factor (significant event or thing)
a. Which jurisdiction did the right vest in
vi. Rules
1. Torts- place of the wrong; where the injury occurred (Gilberts 113; Understanding 184-188)
a. State where the last event necessary to make an actor liable for an alleged tort takes place
b. Substantive law that controls
i. Existence of legal injury
ii. Standard of responsibility
1. Unless acts in state X in reliance on a lesser standard
iii. Causation
iv. Contributory negligence
v. Fellow servant rule
vi. Vicarious liability
1. Only if actor is authorized to act in that state
vii. Defenses
1. A person acts in state X pursuant to a legal duty or privilege and causes injury in state Y (exception)
viii. Survival of actions
ix. Damages
2. Contracts (Gilberts 129; Understanding 189-193)
a. Validity- place of making
i. Formation
ii. Formalities
iii. Capacity
b. Place of performance
i. Manner, time, place
ii. Sufficiency or non performance
3. Property- law of the situs (where property is located) (Gilberts 144; Understanding 194-200)
a. Still dominate rule for real property
b. Moveable property- place where the property was located at the time of the transaction
c. Exception- succession on death
i. Law of decedent’s domicile controls
vii. Escape Devices (Gilberts 73-76; Understanding 162-178)
1. Characterization
a. Substance/Procedure
i. Forum only has to apply foreign substantive law
ii. Can apply own procedural laws
iii. Courts may characterize an issue as procedural to apply own law
1. Ex statute of limitations, statute of frauds, burdens, etc
b. Nature of action
i. Forum can characterize an action as something else
1. Ex contract rather than tort
2. Renvoi- applying a state’s conflict laws to have forum law applied
a. Majority rule rejects renvoi and forum should only apply internal law (not choice of law rules)
b. Whole renvoi
i. States bounce back and forth and apply foreign state’s internal law
c. Partial renvoi
i. States bounce back and forth and apply forum’s internal law
3. Public Policy- state not required to apply laws that violate its own public policy
a. Can apply own law
3. Center of Gravity Test (Understanding 205)
a. Permitted application of the policy of the jurisdiction “most intimately connected” with the case
b. Enabled the court to consider the “relative interests” involved
i. May consider party intent
c. The law of the place which has the most significant contacts with the matter in dispute
4. Interest Analysis- ascertain the underlying policies of the law (Gilberts 91-98; Understanding 241-258)
a. If the policy of only one state would be furthered by applying it in the case, then a false conflict exists (apply that state’s law)
b. A true conflict arises when the policies of each state would be furthered by the application of its law to the case
i. First reconsider to avoid the conflict
1. A more “restrained and moderate” interpretation will allow the forum to avoid the conflict
2. If a state’s policy would become more impaired than the other, apply that state’s law (comparative impairment- Baxter’s approach)
3. Weintraub’s functional approach- for torts, apply the law of the state favoring recovery unless aberrational or anachronistic (Gilberts 98-102)
4. Singer’s lex fori- rebuttable preference for forum law
ii. If conf

preferred over negative factors
vii. Ease in determination and application of law to be applied
viii. Trumps all other rules
b. Grouping of Contacts- identifies the state with the most significant relationship
i. Torts (Gilberts 113; Understanding 218-222, 281-283)
1. The place where the injury occurred
2. The place where the conduct causing the injury occurred
3. The domicile, residence, nationality, place of incorporation and place of business of the parties and
4. The place where the relationship between the parties is centered
5. Courts prefer place of injury unless other factors establish a more significant relationship
ii. Contracts (Gilberts 129; Understanding 224-232, 283)
1. Approach to designation of applicable law (forum selection clauses)
a. Is there a substantial relationship with the chosen law?
i. Yes go to c
ii. No go to b
b. Is there a reasonable basis for selecting the law
i. Yes go to c
ii. No ignore parties’ choice; law with most significant relationship controls
c. Considering the state whose law would have applied if the parties had not designated the applicable law, does that state have a fundamental policy that would be defeated if the parties’ choice was upheld?
i. No; parties choice is applied
ii. Yes go to d
d. Does that state have a materially greater interest in resolving the issue than the chosen state
i. No parties’ choice is applied
ii. Yes ignore parties’ choice; law with most significant relationship controls
2. Absence of an effective choice of law provision
a. The place of contracting
b. The place of negotiation
c. The place of performance