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Conflicts of Law
Washington & Lee University School of Law
Waters, Melissa A.

Conflicts of Law
Waters
Outline
 
Three Primary Topics in Choice of Laws:
(1)   Jurisdiction: personal, concurrent, territorial, nationality
(2)   Choice of Law: if a court has jurisdiction, what substantive law/legal regime will apply; scholarly approaches vary
(3)   Recognition of Judgments: to what extent must courts give effect to laws/judgments from courts of different jurisdictions; FFC b/n states, comity for foreign judgments
 
I.) Choice of Law:
-important for litigators b/c may be treated more favorably under laws of one state than another
 
The Traditional Approach
-focused on state sovereignty and territoriality, vested rights; also Prof. Beal’s 1st restatement of conflicts; characterized by formalism, relies on connecting factors (connecting parties to jurisdictions); NOT concerned with party expectations
-still majority rule in most jurisdictions in areas of law other than torts/contracts; still rule in some (10-11) jurisdictions in tort/contract law
-Lex loci delicti: traditional approach in torts; apply “the law of the place of the wrong”
-Lex loci contractus: traditional approach in contracts; apply “the law of the place the contract was made”
Restatement of Conflicts of Laws:
§ 377: the place of wrong is the state where the last event necessary to make an actor liable for an alleged tort takes place
§ 384: if a cause of action in tort is created at the place of wrong, a cause of action will be recognized in other states; if no cause of action is created at the place of wrong, no recovery in tort can be had in any other state (“vested rights” concept, Prof. Beal)
Advantages of Traditional Approach:
            (1) predictability (injury often easier to determine than concept of negligence), ease of             application, uniformity; rules do not change from jurisdiction to jurisdiction; ensures that             there is one state law that both parties have in common
            (2) neutral rule b/c doesn’t give P advantage of choosing the forum; doesn’t favor    P or D
            (3) jurisdiction-selecting rule as opposed to selecting the better rule of law; oblivious to             how/why that jurisdiction’s law applies
Criticisms of Traditional Approach:
            (1) too random as to what law will apply (driving through ME, wreck, held to ME law)
            (2) too easy for judges to manipulate
            (3) escape mechanisms at every step eliminate the primary benefit of predictability
Steps Courts Follow in Following the Traditional Choice of Law Method:
(1)   Characterization: decide what kind of case this is; determine where the connecting factor is
(2)   Localization: localize the connecting factor to a particular state
(3)   Apply the law: use the law necessitated in steps 1 and 2 w/o regard to content of the law
(4)   Escapes: each of the steps permit the court to get around the requirements under the traditional theory
a.      Application: deciding which law is substantive, which is procedural (procedural law comes from forum state, substantive law comes from the foreign jurisdiction)
b.      Characterization: what kind of case is here; contract/tort
c.      Public Policy
-do we take the whole law of the foreign state or do we just take part of it?
-substantiv

f the state where it was made is enforceable everywhere, including states where such Ks are statutorily invalid
-P husband and wife domiciled in Mass; D partnership formed in ME; K made in ME (executed, received, acted on there)
-wife is guaranty on K; Mass law does not permit women to make Ks but ME law does
-Mass S.Ct. says the law of the place where the K is made is the governing law (lex loci contractus), so ME law applicable
-mailbox rule applies (K valid upon dispatch), so that determines the place the K is made
Linn v. Employers Reinsurance Corp. (Pa. 1958) (CB 33)
Black Letter: When a K offer and acceptance are made telephonically in diff. states, the law of the state where acceptance is made controls w/ respect to contractual validity
-P ins brokers (PA citizens) bring suit in PA to recover $ from insurance deal; P negotiates w/ D’s agent in NY; D gets authorization from MO, P receives acceptance from D over the phone
-PA court holds that acceptance by telephone of an offer takes place where the words are spoken; therefore, the applicable law here is the law of the state where the D was when he accepted the offer over the phone (either NY or MO), not where the P heard the offer accepted (PA)
-when a K is made over the phone, the law of the state where acceptance is made controls