Select Page

Conflicts of Law
Villanova University School of Law
Dellapenna, Joseph W.


1) Introduction
a) Generally
i) Forum usually applies its rules as to how to resolve conflicts.
ii) Most of the time, a forum will decide to apply its own law.
b) 3 Pillars of conflicts
i) Preliminary to court proceeding-which court should/can exercise jx. If court is able, should it do it
ii) Choice of law-arises when we have an ongoing court proceeding; issue is which law should court apply
iii) Recognition and enforcement of judgments. What happens to judgment, i.e., res judicata, collateral estoppel, full faith and credit clause in sister state judgments (does not reach foreign nation judgments)
c) There is some interplay re jx and choice of law
i) Old view was that only 1 court should be able to exercise jx in any given dispute.
(1) i.e., Old rule was that had to go to home of D in order to sue D. Even now this is always an appropriate forum. Does not necessarily mean that that forum’s law must govern (territorial dispute).
ii) New view is that can sue in other places depending on minimum contacts, etc.
(1) Underlying goal is that forum selection should be irrelevant as to choice of law-not encourage forum shopping.
(2) Every forum has ability to choose different conflicts rules and many of them have.

2) Choice of Law
a) The Traditional Approach (The First Restatement)
i) Torts (Lex Loci Delecti)
(1) Alabama Great Southern RR v. Carroll:
(a) Facts: P citizen of AL and employee of RR; RR corporation of AL; RR entered into k for service in AL. P injured when working on train in MS. Negligent maintenance of links occurred in AL, but actual harm occurred in MS.
(i) Substantive laws:
1. Alabama-employer liable (employer liability act).
2. Miss-Employer not liable (fellow servant rule)-old rule
(b) Holding: apply MS law, not AL law. It doesn’t matter where the negligence occurred, it matters where the harm occurred. The law of AL cannot extend beyond its borders to acts that occur in other states; aggrieved parties must look to local law
(i) Result-court applies Miss law; employer not liable. Why should Alabama entertain this case at all? Full faith and credit requires it. Alabama cannot say it would never apply Miss. Law, but it is also clear that Alabama does not always have to apply Miss. Law; there are a lot of Alabama connections (both D and P live in state); Comity notions – there could be times when it is a better for an Alabaman to bring a suit in Mississippi
(c) Bealean approach: idea that a localizing event creates the vested right; where the right vests, the court has no choice, they have to apply that law; this is not Huber, which who would direct states to apply other sister state’s laws out of comity
(d) Exceptions:
(i) Application of the standard of care – will be taken from the place of the actor’s conduct
(ii) A person required, forbidden, or privileged to act under the law of the “place of acting” should not be held liable for consequences in another state
(iii) Poison – if a person is poisoned in one state and dies in another, held liable in the state where poisoned
(iv)Defamatory statements:Where the defamatory statement is communicated; for publishers, have the single publication rule
ii) Contracts & Misc. Areas
(1) PLACE OF CONTRACT RULE: Place of the making of the contract will govern disputes concerning validity, capacity, assent, consideration and all other requirements regarding contract disputes
(2) 1st Restatement
(a) § 332: Questions of contract validity are governed by the law of the place of contracting.
(b) § 358: Questions of contract performance are governed by the law of the place of performance.
(c) § 311: “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. . . .”
(3) Milliken v. Pratt (1878) –
(a) Facts: Plaintiffs are partners doing business in Maine, Defendant is wife of Pratte who acted as surety for him to allow him to purchase items from Ps. D made several orders and paid them all, except for last shipment made after September; subsequently, he owed Ps $560.12.
(i) Substantive law
1. Mass: W cannot enter into K (K invalid)
2. Maine: W capable of K (K valid)
(b) Holding: Court finds that the k was made in Maine b/c that is where acceptance was received and k was formed; place of the making of the k governs.
(i) Look at reasons why a state would apply another state’s law (above). Here we see MA wanting to change its law regarding women’s ability to contract. Also reciprocity and comity arguments too. She says this is a more comity oriented decision.
(ii) Court also pulls a slight of hand, characterizing this k as a unilateral k to get around the mailbox rule
(iii)Interesting note: at the end of the decision the court says, “There is therefore no reason of public policy which should prevent the maintenance of this action.”
(4) Determining place of contracting – Determining the final act isn’t always so crystal clear. What rule the court applies to determine what is the final act that creates the k can also effect the outcome:
(a) Forum – can just try to apply the forum’s law
(b) Majority rule – can apply the majority rule
(c) Restatement – apply the restatement’s approach which says the place where the principle event occurs
(i) Formal contract – law where delivery is made
(ii) Informal unilateral contract – law where the event takes place that makes the promise binding
(iii)Informal bilateral contract – law where second promise is made and consideration is made for the first promise
iii) Rudow v. Fogel –
(1) Facts: Mass is forum. Wife orally conveyed Mass property to Defendant brother in New York. Brother agreed to hold property for benefit of plaintiff – wife’s son.
(a) Substantive law
(i) New York law – constructive trust arises where conveyance is made between members of same family
(ii) Mass law – constructive trust does not arise merely because conveyance was made btw members of the same family
(2) Holding: Massachusetts should look to New York law to determine material questions involving legal or beneficial interests in land because New York had the dominant contacts and the superior claim for application of its law. The court remanded the case for a determination of whether there was an abuse of a confidential relationship under New York law.
(a) Suggestion that governing law clause might be overlooked if some other jurisdiction had the most significant contacts with the trust
(b) NY interest: protect children’s interest in property
(c) Mass interest: protect against fraud, preserve accuracy of title
(i) Uncle would normally have to record the deed, but there’s no deed
(ii) Purpose of recording is to protect unsuspecting buyers
(d) Rare case because normally you apply vested rights to real estate dispute, not interest analysis
iv) Youssoupoff v. Widener (1927)
(1) Facts: K between the buyer and the seller allowed the seller to repurchase the paintings if he were to find himself in a position to keep and personally enjoy them. The seller got the money to repurchase them by borrowing, pledging the paintings as collateral. The buyer claimed that this arrangement did not satisfy the sale contract, and he refused to accept the money or tender the paintings.
(a) Buyer wrote up K in Pennsylvania. Sent K to his agent in London. Seller signed contract in London and delivered paintings to buyer’s agent.
(i) PA law: K treated as a mortgage: seller gets paintings back
(ii) English law: K treated as conditional sale: seller doesn’t get paintings back unless he meets all conditions
(b) P argues that that K is governed by law of J where property was removed to and where the parties intended it to be permanently located (PA law)
(c) D argues that K is governed by law of J where K was made and where property was then situated
(2) Holding: General rule is that where K for goods was made in same jurisdiction where property was located, law of that jurisdiction should govern
(a) Exceptions to this rule should only be made for the purpose of carrying out the presumed intention of the parties
(i) Parties did not intend law of PA to apply to the transfer of property completed in Eng. made and dated there by delivery accepted there
(ii) Court denied the seller’s action for specific performance of the contract,
b) Land is special.
i) Territorial limitations are exacerbated when land is involved. Cannot move land into other jx. Territorial considerations attached to land are stronger that to place of tort, place of K, etc. Law of the place where land is usually trumps
c) DOMICILIARY RULE: Law of person’s domiciliary state governs the person and his movable property. The state in which a decedent has his domicile at the time of his death must govern the distribution of his estate.
i) Every person has a domicile; can only have one domicile; an old domicile is not lost until another is acquired
ii) Establish domicile with (1) presence (2) intention to remain
iii) Besides the rule, domicile is also a tool for determining choice of law
iv) Reasoning:
(1) Consistency and predictability argument: People can travel all over the place, but it is desirable that certain legal interests, particularly matters of continuity (like marriage and children) should be governed by the same consistent law; person takes his domiciliary law with h

procedure distinction
(i) First step in choice-of-law process-Laws to govern procedural matters; depositions, service of process, etc.
(ii) Matter of characterization-Issue “characterized” as one of procedure; e.g. Grant v. McAuliffe
(c) Examples of Rules (Usually) Viewed as Procedural
(i) Methods of serving process;
(ii) Matters of pleading and the conduct of proceedings in court
(iii)Proof in court of a fact alleged as well as presumptions and inferences to be drawn from evidence (if courts have different rules re: weight of evidence might effect outcome and thus substantive effect)
(iv)Limitations of forum law on extent of recovery
(v) Statutes of limitations* (often viewed as substantive — more on this later)-controls access to court (procedural). As jx measure (substantive).
(3) Problem: How to Distinguish b/w procedure and substantive issues
(a) OLD RULE: If issues goes to the right, its substantive; if it goes to the remedy its procedural
(i) Example: VA passes law that says that miners will be held liable for 3Xs the damages if someone is hurt by a cave collapsing. This is a remedy, not a right. Thus, it is procedural. Except that VA may be creating a different c/a with a lower threshold of negligence. Is this a right or remedy? Frequently, the remedy is a right too. Gets confusing
(b) Substance and procedure seem to be on a continuum
(i) Example: Burden of proof – sounds procedural on its face, but it governs who has the burden of proof and what burden of proof? This will effect the substantive result. Suppose you have a federal case with diversity jurisdiction (Erie doctrine applies). Need to figure out the burden of proof; supposedly a procedural issue, but reaching this decision is a substantive issue.
(4) Beale’s Vested Rights Approach: Criticism: argues that the law of the situs of accident should apply to both substantive and procedural law b/c of need for uniformity of results
(a) Response: convenience argument for the court; know their procedure better; becomes burdensome for forum court to be applying foreign procedural rules
(5) Grant v. McAuliff – car accident in AZ injuring three people from CA; D and P and his passenger all CA citz; D dies, but P still brings suit in CA. CA law allows for actions to be maintained against dead tortfeasors whereas AZ law will not sustain such actions. Holding: whether a suit can be maintained against a dead tortfeasor is a matter of procedure; therefore it should be governed by the law of the forum (CA law). In the case of accidents, courts will adopt the situs of the accident law for substantive matters concerning the accident; however on procedural issues, the forum court will retain its own procedural laws
(a) Side Note: Actions against dead tortfeasors are not substantive law because “survival is not an essential part of the c/a itself but relates to the procedures available for the enforcement of the legal claim for damages.” Court says that lower court confused actions against dead tortfeasors with survival actions. Survival actions are substantive b/c they are c/a that are statutorily created and where the death&survival are essential elements of the c/a
(6) Marie v. Garrison (NY)
(a) Facts: D made oral K in Missouri for sale of land in Missouri that was to be performed in 1 year. NY law declared such an oral promise “void.” Missouri law said“No action shall be brought” on a K involving land unless k is in writing.
(b) Holding: Neither statute of frauds applies. New York’s SOF is substantive and only applies to Ks made in NY. Missouri’s SOF is procedural and only applies to actions brought in Missouri. Contract is thus valid!
(7) Statute of Limitations Rule: S/l generally treated as a procedural issue and forum law will apply
(a) Exceptions: