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Conflicts of Law
West Virginia University School of Law
McLaughlin, James A.

Conflicts of Law Outline – Fall 2007 – Prof. McLaughlin
Choice of Law
What law applies when the facts and parties are from more than one state?
Three Main Approaches
            1 – Traditional Approach (Lex Loci – Vested Rights)
o       Place where last event necessary to bring claim to being took place.
            2 – Interest Analysis
            3 – Restatement Second: Most Significant Contacts
Other Approaches
4 – Center of Gravity 
5 – Better Law
            6 – New Territorialism
Escape Devices
            1 – Re-charaterization: Subject Matter Classification
            2 –Procedural/Substantive Classification
            3 – Renvoi
            4 – Public Policy
Conflicts in Federal Courts
o       If there is a federal diversity case, you apply the conflict of laws approach used in the state you are sitting in.
Final Exam Hints
Argue both sides and rebut both sides.
o       Most issues have the same three factors.
·         1 –Point of View of State – Overall trying to apply the law that makes the most sense of the circumstances of this case. It looks from point of view of the interested states, and the nature of the law.
·         2 – Point of View of Parties — Expectations of parties based upon events of the case.
o       In K cases, this is the most important. In Torts, it’s not as important.
·         3 – Point of View of Court – Court has to adjudicate a case efficiently and justly.
o       On exam – Explain how different facts might change the analysis
o       To re-enforce your argument, sometimes you can say how the current ruling is consistent with the old stuff. (Cardozo, Holmes, etc).
o       Elements – (1) Actual residence and (2) intent to stay.  
o       One Domicile – Can only have one domicile.
§         Domicile of Origin – Where you are born
§         Domicile of Choice – Where you choose to live
o       Other General Rules
§         1 – You don’t acquire until domicile until you actually reside there.
o       This could mean (1) sleep there, or (2) move stuff in.
o       Majority Rule — Probably need to stay at least one night.
o       Minority Rule – Just move stuff in. Don’t have to spend night (White)
§         2 – A man’s acts carry more weight than his declarations. (In re Dorrance)
§         3 – You retain your old domicile – until you achieve a new one. (Jones)
o      Cases
§         White vs. Tenant(WV 1888) (One way to argue) – If you’ve already moved in, that is your domicile. Don’t even have to spend the night.
o       Case shows how mechanical we are in applying the law sometimes.
o       Guy sold WV house, moved to PA house, but didn’t say the night b/c wife got sick. He later dies in WV b/c of typhoid fever.  
o       Court – PA domicile b/c intent of PA residence and moved goods to PA. Most courts would have probably come out the other way.
§         In re Estate of Jones (Iowa 1921) – Guy lived in Iowa, but was going to Wales and he died.
o       Court said he was domiciled in Iowa, b/c he had not acquired a new domicile in Wales yet.
§         In re Dorrance (PA 1932) – Guy moved to PA from NJ but still works in NJ and tells people he lives in NJ. 
o       Court – PA said PA, NJ court said NJ.
o      Multiple Taxation
§         Sometimes 2 different states will apply an estate tax on a person for their entire estate b/c each state believes it has domicile on the person (Pa and NJ).
§         More than one court can make domicile findings on you (PA says your PA, NJ says your NJ).
When Domicile is used as choice of law
§        It’s not really rigid.
§        It’s more to see how much contact the person has with the state to determine how much interest exists.
§        Example – Interest Analysis Domicile – Looking at domicile as a standard. You can have an interest in a person even if they technically might not be domiciled there.
Ways to get JD – (1) Consent, (2) estoppel, (3) domicile, (4) long arm, (5) min contacts
o       Old Way – Present presence of self or thing owned by you in a jurisdiction.
o       New Way – Minimum Contacts (International Shoe) – Minimum Contacts + Fair Play and Substantial Justice = Due Process = Jurisdiction.
§         Must have “such minimum contacts so that jurisdiction does not offend traditional notions of fair play and substantial justice.”
§         One continuous step – Most so such contacts with the state such that it is far to bring them back into the state for a lawsuit growing out of those contacts.
o       Two main factors to look at for Fairness (these drive Minimum Contact doctrine)
§         1 – General notice of the law to know you could be sued in that state for it
§         More than mere forseeability. 
§         2 – Reciprocity
§         Have received some benefit of the state (driving in state, living, shopping, protection, etc.)
§         Another possibility – Convenience (comparatively speaking) – if it’s no longer convenient then it’s out.
o       Foreseeability (WW Volks and Asahi)
§         Stream of Commerce — Mere foreseeability that a product will appear in a forum state is not enough to give sufficient notice. 
·         Must forsee — D must reasonably foresee theyll be brought in the state.  
·         How you can forsee — You can reasonably anticipate being sued in a forum state if you deliver your product into stream of commerce with the expectation that they’ll be purchased by consumers in forum state.
§         Hypo – Foreign thermostat maker for hot water heaters

and Substantial Justice. Here, 1% of foreign companies valves went to Calif. No jurisdiction.
§         Steven’s opinion is important b/c he looked at how dangerous something was.
Quasi In Rem
Type I – Suit v. specific person over property. Use JD based on property b/c that is what the suit is about.
Type II –
Court renders a judgment for or against a person but recovery is limited to the value of the property that is within the jurisdiction and thus subject to the court’s authority.
The dispute that gives rise to an action quasi-in-rem does not have to be related to the property.  
Property satisfies judgment — But the property just be used to satisfy the judgment.
Jurisdiction – they must have jurisdiction over YOU, not just the property.
What Lawyers need to do
(1) Find out all the D’s that might be liable.
(2) Try to get it to state court b/c of better juries
(3) Make sure you can get jurisdiction over all the D’s.
Defense Attorney – Get dismissed based on no jurisdiction.
McLaughlin’s Law Review Article
Make sure to read Territorial Due Process (81 W.Va. L. Rev. 335)
***Unfairness to Adjudicate in One State over Another (USE THESE TO ARGUE)
Why is it unfair to bring a suit in a state you’ve never been? – Territorial Due Process
§         1 – Lack of general notice (this is not physical notice of the suit but lack of general notice in relation to laws that you might not be aware of – asked to obey a rule if you didn’t know the rule existed because it is a totally different state. Law provides certainty so you can prepare, but if they sue you in different states, it is hard to prepare for those laws ahead of time. No foreseeability).
§         2 – Lack of reciprocity (you haven’t received any benefit from this state that you are now being sued in).
§         3 – Inconvenience (Asahi case – forum non convenes. Also, have to get lawyer that you are unfamiliar with)
§         4 – Lack of representation (I’ve never been able to vote in that state or have a voice in that state)
§         5 – Divided allegiance (Conflicting Orders) (Serving two masters. You have orders from one state, but also this makes you have to follow orders from this other state that you never even went into).