Conflicts Outline With TOC

Conflicts of Laws
Arkin Spring 2010 Currie, Hill Kay, Kramer, & Roosevelt Conflict of Laws
I. Traditional Choice of Law............................................................................................................5

A. A Short History on Choice of Law..........................................................................................5
Hubers 3 Maxiums (aka Comity Theory)........................................................................5
Vested Rights Theory (aka First Restatement) (1904)....................................................5
Governmental Interest Analysis (1950s)..........................................................................5
Second Restatement (1971)...............................................................................................5
B. Jurisdiction Selecting Rules....................................................................................................6
1. Lex Locus Delictus (Tort)....................................................................................................6
Alabama Great Southern RR v. Carroll...............................................................................6
2. Lex Locus Contractus (Contract).........................................................................................7
Milliken v. Pratt...................................................................................................................8
3. Special Rules: wills and succession, marriage, corporations, criminal law........................8
4. Law of the situs (Property)..................................................................................................8
Cammell v. Sewell (Eng.).....................................................................................................9
In re Barries Estate.............................................................................................................9
5. Domicile..............................................................................................................................9
White v. Tennant...................................................................................................................9
Dred Scott..........................................................................................................................10
B. Traditional Practice: Escape Devices...................................................................................10
1. Characterization.................................................................................................................10
Caldwell v. Gore (La. 1932)..............................................................................................10
Cutts v. Najdrowski (NJ 1938)...........................................................................................11
Levy v. Daniels U-Drive Auto Renting (Conn. 1928)........................................................11
Haumschild v. Continental Cas. Co. (Wis. 1959)..............................................................11
Buckeye v. Buckeye (Wis. 1931)........................................................................................11
2. Substance or Procedure?....................................................................................................12
Grant v. McAuliffe (Cal. 1953)..........................................................................................12
Bournias v. Atlantic Maritime Co., Ltd. (2d Cir. 1955).....................................................13
Marie v. Garrison (NY 1883)............................................................................................13
3. Renvoi................................................................................................................................13
In re Schneiders Estate (NY 1950)...................................................................................14
In re Annesley (Eng. 1926)................................................................................................14
4. Public Policy Exception.....................................................................................................15
Loucks v. Standard Oil (NY 1918).....................................................................................15
Mertz v. Mertz (NY 1936)..................................................................................................15
Holzer v. Deutsche Reichbahn-Gesellschaft (NY 1938)....................................................15
Lewis v. NYS Dept of Civil Service (NY 2009)..................................................................16
C. Pleading and Proving Foreign Law.......................................................................................16
Walton v. Arabian American Oil (2d Cir. 1956).................................................................16
II. Modern Approaches to Choice of Law.....................................................................................17
A. Summary of COL Regimes...................................................................................................17
1. Leflars Better Law....................................................................................................17
2. 6 of Second Restatement........................................................................................17
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3. Curries Interest Analysis...........................................................................................17
4. Baxters Comparative Impairment.............................................................................17
5. First Restatement.......................................................................................................17
6. Presumptive Rules of Second Restatement...............................................................17
7. Cavers Dpeage in Interest Analysis........................................................................18
8. Kramer.......................................................................................................................18
B. Statutory Solutions................................................................................................................18
C. Party Autonomy and the Rule of Validation.........................................................................19
Pritchard v. Norton (US 1882)..........................................................................................19
Siegelman v. Cunard White Star Ltd. (2d Cir. 1955).........................................................19
Auten v. Auten (NY 1954)..................................................................................................20
Wyatt v. Fulrath (NY 1965)...............................................................................................20
Hutchinson v. Ross (NY 1933)...........................................................................................21
Shannon v. Irving Trust (NY 1937)....................................................................................21
In Estate of Clark (NY 1968)............................................................................................21
D. Interests Analysis..................................................................................................................21
1. Introduction to Curries Interest Analysis..........................................................................21
Milliken v. Pratt example...................................................................................................21
Carroll v. Great Southern RR example..............................................................................22
Wyatt v. Fulrath example...................................................................................................22
Levy v. Daniels U-Drive example.....................................................................................23
2. Identifying False Conflicts (New York Line of Cases)......................................................23
Auten v. Auten (NY 1954)..................................................................................................23
Haag v. Barnes (NY 1961)................................................................................................24
Babcock v. Jackson (NY 1963)..........................................................................................24
Dym v. Fordon (NY 1965).................................................................................................24
Tooker v. Lopez (NY 1969)................................................................................................25
Neumeier v. Kuehner (NY 1972).......................................................................................26
Schultz v. Boy Scouts of America (NY 1985).....................................................................26
Danan v. Sinai Special Needs School................................................................................27
Mihalic v. K-Mart (Dist. Crt. of NY).................................................................................27
Cooney v. Osgood Machinery (NY 1993)..........................................................................28
Padula v. Lilarn Properties (NY 1994).............................................................................28
In re Allstate Insurance Co. (Stolarz)***..........................................................................28
o United Community Insurance v. Mucatel (NY 1987)................................................29
Gilbert v. Seton Hall***............................................................................................29
3. The Unprovided-For Case..............................................................................................29
Neumeier v. Kuehner (again).............................................................................................29
Erwin v. Thomas (Ore. 1973).............................................................................................29
4. Resolving True Conflicts...................................................................................................30
a. Curries Solution: Apply Law of the Forum.........................................................................30
Lilienthal v. Kaufam (Ore. 1964).......................................................................................30
b. Comparative Impairment.......................................................................................................31
Peoplev. One 1953 Queen Victoria (Cal. 1957).................................................................31
Bernkrant v. Fowler (Cal. 1961)........................................................................................32
Bernhard v. Harrahs Club (Cal. 1976).............................................................................32
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Offshore Rental v. Continental Oil (Cal. 1978).................................................................33
c. Principles of Preference.........................................................................................................33
Cipolla v. Shaposka (PA 1970)..........................................................................................34
E. ALI, Restatment (Third) Foreign Relations Law..................................................................34
Western Airlines.................................................................................................................35
F. The Place of the Most Significant Relationship (Second Restatement)................................36
Phillips v. General Motors Corp. (Mont. 2000)................................................................37
Wood Bros. Homes v. Walker Adjustments Bureau (Colo. 1979).......................................38
G. The Better Law: Leflars Choice-Influencing Considerations..............................................39
Kell v. Henderson (NY 1966)............................................................................................39
Milkovich v. Saari (Minn. 1973)........................................................................................40
Japson v. General Casualty Co. of Wisconsin (Minn. 1994).............................................40
H. Problems Old and New.........................................................................................................41
1. Dpeage............................................................................................................................41
Adams v. Knickerbocker Nature Socy (Hypo)..................................................................41
Maryland Cas. Co. v. Jacek (NJ 1957)..............................................................................41
2. Encore for Renvoi..............................................................................................................42
Pfau v. Trent Aluminum Co. (NJ 1970)..............................................................................42
American Motorists Ins. v. ARTRA Group (Md. 1995)......................................................43
3. Rules v. Standards..............................................................................................................43
Paul v. National Life (WV 1986).......................................................................................43
4. Complex Litigation............................................................................................................43
Klaxon v. Stentor Electric Mfg. (US 1941)........................................................................44
Van Dusen v. Barrack (US 1964).......................................................................................44
In re Air Crash Disaster Near Chicago Illinois on May 25, 1979 (7th Cir. 1981)............44
In re Agent Orange Product Liability Litigation (E.D.N.Y. 1984)...............................45
ALI Mass Tort Rules 6.01...............................................................................................45
5. Conflicts in Cyberspace.....................................................................................................45
Licra et UEJF v. Yahoo! Inc. (France 2000)......................................................................45
Yahoo! Inc. v. La Ligue Contre Le Racisme et LAntisemitism (N.D. CA 2001)...............45
Ehrenfeld v. Mahfouz (Eng. 2008).....................................................................................46
Morrison v. Australian National Bank (Can. 2010)...........................................................46
III. Constitution and Choice of Law..............................................................................................46
A. Limits of Jurisdiction............................................................................................................46
1. Due Process: Interest unfair litigant surprise.....................................................................46
Home Ins. Co. v. Dick (US 1930)......................................................................................46
Harford Acc. & Indem. Co. v. Delta & Pine Land Co. (US 1934)....................................47
Watson v. Employers Liability (US 1954)..........................................................................47
2. Full Faith and Credit: Interest in Interstate Comity..........................................................47
Bradford Electric Light Co. v. Clapper (US 1932)............................................................48
Alaska Packers Assoc. v. Industrial Acc. Commn (US 1935)...........................................48
Pacific Employers Ins. Co. v. Industrial Acc. Commn (US 1939)....................................48
Carroll v. Lanza (US 1955)...............................................................................................49
3. Convergence......................................................................................................................49
Nevada v. Hall (US 1979)..................................................................................................49
Franchise Tax Board v. Hyatt (US 2003)..........................................................................50
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Allstate Ins. v. Hague (US 1981).......................................................................................50
Phillips Petroleum Co. v. Shutts (US 1985).......................................................................51
Sun Oil v. Wortman (US 1988)..........................................................................................51
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I. Traditional Choice of Law
A. A Short History on Choice of Law
Hubers 3 Maxiums (aka Comity Theory) (Adopted by Joseph Story in 1834):
1. The laws of each state have force within the limits of that government and bind all
subject to it
2. All persons within the limits of a government, whether they live there
permanently or temporarily, are deemed to be subjects thereof.
3. Sovereigns will so act by way of comity that rights acquired within the limits of a
government retain their force everywhere so far as they do not cause prejudice to
the power or rights of such government or its subjects. Note: a statute may
prohibit the operation of all foreign laws, and the rights growing out of them,
within its own territories.
o Reasoning: Jurisdiction for law to govern case based on territory. Note: this
assumes a real life connection between the facts and the laws governing the case.
Beales modified Vested Rights Theory (aka First Restatement) (1904): when an
event occurs in a foreign territory, a right is created. For this reason, the only law that
could operate in the foreign territory was the law of the foreign sovereign, the existence
and content of any such right was determined by foreign law. Thus, the recognition of
the rights existence follows everywhere. Note: The forum simply enforced the right
which and vested in the foreign territory according to foreign law. Note: This method
considers the content of the law completely irrelevant.
Curries Governmental Interest Analysis (1950s): The governmental interests of each
jurisdiction in having its law applied should be considered. Note: this ensures that the
law will not be applied to a problem unless applying that law would achieve a policy goal
sought by the sovereign which promulgated the law.
Second Restatement (1971): contains general grouping-of-contacts ( 188) providing
that the controlling law is the local law of the state which, with respect to the issue, has
the most significant relationship ( 6). Note: the Second Restatement reflects an uneasy
compromise between the traditional rules and a more flexible, policy-oriented
framework.
General Rules:
o Applicable COL: RULE: the court at the forum determines the law according to
its own Conflict of Laws rule (First Restatement 584)
o Federal COL: RULE: Federal courts must apply the choice of law rules in the
state in which it sits (Klaxon v. Stentor).
o Privileges and Immunities Clause: states cannot close their courts to a transitory
cause of action. Note: they can close their courts to a non-transitory cause of
action. (Ex. NY cannot hear a case to quiet title for land in NJ.)
o Full Faith and Credit: Non-friction principle
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B. Jurisdiction Selecting Rules
Goals of Traditional Choice of Law rules (First Restatement)
1. Predictability
2. Uniformity disincentive to forum shop because like cases come to like results
3. Clarity
4. Party Expectation (see Posner argument book page 17)
5. NOT Fairness or equitable results
o Ex: Facts: Dog is kept in Maine. Without negligence by owner, it crosses into NH
and attacked . Holding #1: if NH has strict liability standard and Maine does
not, then this unfairly imposes additional liability on Maine . Holding #2: if NH
has negligence standard and Maine has S.L., may be granted a windfall under
the more lenient standard.
1. Lex Locus Delictus (Tort)
First Restatement 387: the existence of a cause of action for tort depends upon the law
of the place of the wrong. Two Exceptions:
1. Standard of Care: standard should be taken from the law of the place of the
actors conduct ( 380(2))
2. Place of the Acting: a person required, forbidden, or privileged to act under the
law of the place of the acting, should not be held liable for consequences in
another state ( 382)
o DEF Place of the Injury: where did the force impinge upon the victims body?
Alabama Great Southern RR v. Carroll (Ala. 1892): Facts: is hurt on RR by a failed
coupling between the train cars. argument: this case is contract, not tort, because the
employee-employer relationship is based in contract (rejected).
Alabama
Alabama
Forum Alabama
Injury Mississippi
Negligence Alabama
o Laws:
Alabama Employer liability statute
Mississippi Common law fellow servant rule (no employer liability when
employees injure one another)
o RULE: Law of the place of the injuryno recovery in one state for injury in
another, unless inclusion of injuries also support a cause of action in the other
state. Holding: Mississippi law applies because the last act necessary to create the
cause of action occurred in Mississippi. Reasoning: under vested rights theory, in
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a tort, the injury is the last act necessary to create a cause of action. Note: under
this rule, it does not matter where the negligence occurred.
Murder: RULE: murderer is punishable where the fatal blow is delivered, regardless of
the place where death ensues.
Libel/Defamation:
o RULE: Libel is done in the place where the statement is communicated. (Keeton
v. Hustler Magazine (NJ 1988) (book pg 16)
v.
o RULE: the law of the s home state applies because in cases of multi-state libel
the greatest harm to repute will occur in the state of domicile (Dale System v.
Time (D.Conn. 1953).
2. Lex Locus Contractus (Contract)
First Restatement 332: The law of the place of the contract applies to:
1. Capacity to make K
2. The necessary form
3. The mutual assent or consideration required to make K binding
4. Any other requirements to make K binding
5. Fraud, illegality, or any other circumstances which make a promise void or
voidable
6. Except as stated in 358, the nature and extent of the duty for performance to
which a party is bound
7. The absolute or conditional character of the promise
DEF Place of K: the place in which the final act was done which made the promise or
promises binding. This is determined by the law of the forum. ( 311)
o Four Contract Situations:
i. Formal K: when a K becomes effective at delivery, the place of K is
where the delivery is made ( 312)
ii. Informal Unilateral K: when a K is unilateral, the place of the K is
wher the event takes place that makes the promise binding ( 323)
iii. Informal Bilateral K: the place of the K is where the second
promise is made in consideration for the first promise ( 325)
iv. Acceptance Sent from One State to Another: when an offer for a
bilateral K is made in one state and an acceptance is sent from another
state to the first state, the place if K is as follows: (a) if the acceptance is
sent b agent of the acceptor, the place of the K is the state where the agent
delivers it; and (b) if the acceptance is sent by any other means, the place
of the K is the state from which the acceptance is sent. ( 326). Note:
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MAJ RULE: an offer is accepted and a K is made upon sending of the
acceptance by the offeree.
First Restatement 358: The law of the place of performance applies to:
1. The manner of performance
2. The time and locality of performance
3. The person or persons by whom or to whom performance must be made or
rendered
4. The sufficiency of performance
5. Excuse for non-performance
Milliken v. Pratt (Mass. 1878): Facts: sends a K guaranteeing her husbands debt. They
ship goods to them until the husband runs up some debt and doesnt pay.
Maine (store)
Mass. (wife)
Forum Mass.
K Maine
o Laws:
Mass. Married women cannot enter K as a guaranty for their husbands
Maine Married women can contract
o RULE: Status is determined by the law of the place of domicile. RULE:
Contracts are governed by law of the place of the making. Holding: the place of
the K applies. Maine is the place of the K, because a guarantee K is not made
until store decided to ship goods based on reliance on that guarantee; and that
decision was made in Maine. Note: There is no strongly held Mass. public policy
to have the court void the contract under the status rule and this holding enforces
party expectations.
DEF Public Policy: Firmly entrenched in public morals
3. Special Rules: wills and succession, marriage, corporations, criminal law
Rights of Spouses in One Anothers Movables: determined by domiciliary.
Validity of Will (aka Succession): Law of the place of decedents domicile.
v.
Rescission of Will: Law of the place of the real property applies.
Marriage: if made where valid, then valid everywhere
o First/Second Restatement Custody Rules (see book page 38)
Corporation: law of the place of incorporation
Criminal Law: if the court has jurisdiction; if it does, then it applies its own law
4. Law of the situs (Property)
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Traditional RULE: one state is not allowed to even adjudicate another states land.
Note: this is the rule despite Full Faith and Credit
o RULE: Immovables (including leaseholds): Law of the situswhere the property
is located
o RULE: Movables (chattels and interest in chattels): Law of domicilewhere the
personal property is. RULE: if chattel is sold, then the sale is governed by the law
of where the property is at the time of the sale.
Cammell v. Sewell (Eng. 1860): Facts: English company insured goods
that were shipwrecked in Norway. Cargo was sold at auction and
eventually resold to s in England. RULE: if personal property is
disposed of in a manner binding according to the law of the country where
it is, then that disposition is binding everywhere. Holding: since Norway
allows the sale of cargo to an innocent purchaser, that right of ownership
did not divest when it was subsequently brought back to England.
In re Barries Estate (Iowa 1949): Facts: Illinois decedent executes a will and leaves all
of her property in Iowa to a Church. But, Decedent had written void on the will.
Illinois
Iowa
Forum Iowa
Property Iowa
Will Illinois
o Laws:
Illinois Intent to void sufficient (will is cancelled/revoked)
Iowa A will must be destroyed or revoked formally (will not void)
o RULE: The will must be probated in ancillary proceedings in the state that the
property is located. Holding: Iowa law applies because it is the place of the real
property and the church wins. Note: regardless of the Decedents intentions,
Illinois decision not to probate the will only applies to decedents personal
property, just not real property in Iowa.
5. Domicile
RULE: Forum law determines domicile, then that law applies.
White v. Tennant (WV 1888): Facts: In the course of moving from WV to PA, decedent
(husband) dies intestate.
Decedent WV/PA
Forum WV
Old Home WV
New Home PA
Death WV
o Laws:
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WV Everything to the surviving spouse
PA Half to spouse and half to siblings
o RULE: Law of domicile applies to succession of movables. RULE: a person
must always have a domicile. This is determined by (1) intent to abandon coupled
with (2) physical presence at new home. Holding: since decedent abandoned the
home in WV and established a new one in PA when he got there, his domicile is
PA. Cf. Second Restatement requires physical presence for a time, rather than a
moment to change domiciles.
Dred Scott: Facts: Travelling slaves pre-civil war. Issue: do they become free by entering
free states. RULE: Territory creates statusnot presence in a free state. Holding: So
Missouri had the right to establish the slavery status of Dred Scott because he resided in
its state.
Compulsive Domicile: First Restatement RULE: a person cannot acquire domicile by
compulsion (ex. prison, military). Modern (Second Restatement) Exception: people can
change their domicile to place where he was forced to move, by declaration for purposes
of jurisdiction.
Family Domicile
o First Restatement: Legitimate child takes fathers ( 11), illegitimate child takes
mothers ( 14), wife takes husband ( 27), and wife and husband can only have
separate domiciles if she was not guilty of desertion ( 28)
o Second Restatement: same, except wife may acquire separate domicile by living
apart for any reason ( 21 cmt. d)
What if house sits on a state border? First Restatement RULE: domicile is based in the
state in which the preponderant part of the house is situated. MIN RULE: state in which
the person sleeps.
B. Traditional Practice: Escape Devices
DEF Escape Devices: Methods or legal strategy used by the courts to avoid the more
egregious inequities or irrational results. Prof Note: only the public policy exception is a
real escape device
1. Characterization
RULE: there are no clear rules on characterization; to determine which characterization is
better then look at the results. Note: First Restatement gives no guidance.
Caldwell v. Gore (La. 1932) (pg 45): Facts: in LA dams water on his property and
obstructs the flow of water to the lower AK estate. Issue: is this a tortplace of injury,
propertylaw of the situs, or duty of careplace of actcase?
AK
LA
Forum LA
Injury (situs) AK
Act (tort) LA
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o Laws:
LA Lower estate owes a duty of drainage
AK Drainage obstruction merely needs to be reasonable
o Holding: LA law applies. Reasoning: if LA law applies, then LA suffers no
greater hardship then if both parcels of land are in LA.
Cutts v. Najdrowski (NJ 1938) (pg 45): Facts: Leon, a resident of NJ, opens a trust
account in NY in the name of Joseph, his brother. Leon dies 4 years later and Joseph
takes the money. Issue: is this an intervivos (law of situsvalid in NY) or testamentary
(law of domicilenot valid in NJ) transfer? Holding: under NJ law, it is an intervivos
transfer. So the law of NY applies and the trust was valid under NY law.
Levy v. Daniels U-Drive Auto Renting (Conn. 1928): Facts: rented a car to a CT
citizen, who negligently drove car injuring . Issue: whether this is a tort or contract
case. Note: this could also be seen as a standard of care case.
CT
CT (car rental)
Forum CT
Injury Mass.
Driver CT
o Laws:
Mass. Common law negligence: rental company only liable if it is
negligent in renting to a particular driver
CT Statutory liability: gives any injured person a right of action against
the rental company
o Holding: this court characterizes this case as contract. Reasoning: Levy is a third
party beneficiary of the contract and therefore he is entitled to sue under CT law.
Here he is merely enforcing his right under the contract and the place of the
accident is merely fortuitous. Note: This same argument which is successful here
was unsuccessful in Carroll. Cf. Under interest analsysis, Mass. has no interest in
having its law apply here.
Haumschild v. Continental Cas. Co. (Wis. 1959): Facts: husband and wife from
Wisconsin get in a car accident in California. Issue: should the place of the tort or the
domicile of the marriage control?
Wis. (wife)
Wis. (husband)
Forum Wis.
Injury Cal.
o Laws:
Wis. Permits spouses to sue
Cal. Inter-spousal immunity
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o argument: under Buckeye v. Buckeye (Wis. 1931), a person only has a vested
right if a person has capacity to sue in the state where that right ariseshere Cal
(rejected). Holding: inter-spousal immunity is about the relationship between the
spouses, so Wis. should control; the place of the accident is merely fortuitous.
Note: the court rationalized its decision by determining that the Cal. court would
come to the same conclusion, through acceptance of renvoi.
Hypo: Facts: wife sues third-party driver, who is from a no-immunity state. And third-
party driver tried to implead the wifes husband. The wife and husband are from a
spousal immunity state. Issue: can the third-party implead the husband? RULE: you
cannot do indirectly, what you cannot do directly. Holding: cannot implead the husband.
2. Substance or Procedure?
First Restatement 585: all matters of procedure are governed by the law of the forum.
Note: Second Restatement is very similar. Procedure includes:
1. Procedure in court pleading and conduct of proceedings ( 592)
2. Mode of Trial bench or jury trial ( 594)
3. Proof of Facts proof in court and presumptions/inferences to be drawn from
evidence ( 595)
4. Witness competency and credibility ( 596)
5. Evidence admissibility ( 597)
6. SOL ( 603). Second Restatement Exception: SOL is procedural, unless the other
jurisdiction, whose law governs the case, has a shorter SOL. Cf. Uniform Act:
SOL of jurisdiction whose law governs should apply, even if longer.
7. Applicability of foreign SOL ( 604).
8. Time Limitations on Cause of Action ( 605)
9. Limitations on Amount Recoverable ( 606)
10. NOT parole evidence (substantive)
o RULE: substantive/procedural distinction is determined by forum law.
Grant v. McAuliffe (Cal. 1953): Facts: car accident in AZ. Issue: whether the survival of
tort action after death of tortfeasor is substantive or procedural.
Cal.
Cal. (Decedent)
Forum Cal.
Accident AZ
o Laws:
AZ Tort actions abate on the death of the tortfeasor (aka AZ favors the
integrity of the estates)
Cal. Actions survive and continue against the estate
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o MIN RULE: laws regulating remedy for a wrong are procedural, which are
governed by the law of the forum. Reasoning: just because AZ refuses to provide
a remedy, doesnt mean that the right doesnt continue to exist. Procedures are
not an essential part of the cause of action. Holding: here forum (Cal.) law
applies. Prof Note: this reasoning is a bit tenuous, because the court is really
looking for a way to apply the law of the decedents estate.
Bournias v. Atlantic Maritime Co., Ltd. (2d Cir. 1955): Facts: (aka Libelant) sued for
wages due under Panama Labor Code and for penalties for failure to pay under US law.
Panama
Panama
Forum NY Fed. Court
Employee K Panama
o Laws:
Panama 1 year SOL
U.S. Greater than 1 year
o RULE: for COL purposes, SOL is procedural if it bars the remedy and not the
right. RULE: if the SOL is in the same code provision as the substantive right,
then SOL qualifies that right and bars the right. Otherwise, general statements of
Sol policies are not so directed at that liability as to qualify it and, thus, only bar
the remedy. Holding: NY SOL applies.
DEF Bars the remedy: we will not hear your case because we want to
hear cases that arent as stale as your case.
DEF Bars the right: extinguishes s ability to sue anywhere
Marie v. Garrison (NY 1883) (pg 60): Facts: sued for breach of an oral K made in
Missouri.
o Laws:
NY SOF (K invalid)
Missouri SOF (K invalid)
o Holding: K enforceable under Federal common law. Harlan Reasoning: The NY
statute of frauds declares a K void, thus the NY statute of frauds speaks to the
right, which cannot be enforce outside NY. The Missouri statute of frauds is
termed no action shall be brought and therefore only bars the remedy, which is
procedural and does not apply in NY forum. Note: the claim would have been
barred if purely NY or Missouri, but since it is interstate, has a remedy.
3. Renvoi
DEF Renvoi: when courts look at a foreign states whole law to decide a question
o DEF Internal law: law that would be applied to a purely domestic case without
multi-state contacts
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o DEF Whole law: law that state would apply to the multistate case actually
presented, by reference to its own COL rules.
o DEF reject the renvoi: forum state refuses to consider the COL rules of the state
to which it refers
o DEF accept the renvoi: forum state follows the foreign COL rule
o DEF remission: renvoi is accepted and the state whose COL rules are examined
refers the case back the law of the forum
o DEF transmission: renvoi is accepted and the state whose COL rules are
examined refers the case to a third state
o DEF partial renvoi: the foreign COL rule is found to refer to the internal law of a
state
o DEF whole/total renvoi: the foreign reference is to the whole law of a state
RULE: renvoi is generally accepted in three situations: (1) wills, (2) land title, and
(3) divorce. Note: First and Second Restatements encourage renvoi in land title. (see
book page 68)
o Side Note: pursuant to the Federal Court Claims Act, the Supreme Court found
that the full law of the state where the accident occurred should be applied.
In re Schneiders Estate (NY 1950): Facts: A naturalized American citizen of Swiss
origin died, leaving Swiss property in his estate.
Decedent NY (domicile)
Forum NY
Property Switzerland
Will NY
o Laws:
Internal Law COL Rule
Switzerland If everyone was Swiss, then Law of the domicile no renvoi
there is a right of legitimacy
(forced heirship)
NY if everyone was a New Yorker, Law of the situs accepts
then the land goes by will renvoi
o Holding: By accepting renvoi, then the whole law of the situsSwiss law applies.
Under Swiss conflict laws, it rejects the renvoi and applies the law of the
domicile. So NY internal law applies. Note: this would be a problem if Swiss
law accepted the renvoi too it would be an endless circle of references between
Swiss and NY law.
In re Annesley (Eng. 1926) (pg 68): Facts: dispute over moveable property on the death of
a British subject domiciled in France.
o Laws:
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England Law of the domicile (France)
France Law of nationality (England)
o Holding: court accepted a total renvoi, because a French court would have
decided in accord with French internal law. Reasoning: must accept renvoi
because otherwise French court would apply English law and England would
apply French law. In other words, if France would apply English law, England
should too.
4. Public Policy Exception
Loucks v. Standard Oil (NY 1918): Facts: NY decedent was run down and killed by two
employees of in course of their employment. Mass. law, but not NY, provided
vicarious liability. RULE: Court can refuse to enforce a foreign law if it would violate
some fundamental principle of justice, some prevalent conception of good morals, some
deep-rooted tradition of the common weal. Note: Courts are not free to refuse to enforce
a foreign right at their pleasure to suit their individual notion of expediency or fairness.
Holding: Mass. law does not violate NY policyin fact, it is consistent with NY policy
to provide remedy for wronged s.
o General RULE: the greater and closer the connections to the forum, the more
likely that the forum will apply the public policy exception. And if there are more
foreign connections, then the court is more likely to apply foreign law, even if it si
repugnant.
o Note: if there are substantial foreign connections, then is a substantial risk of
forum non convens. In that case, the party must:
1. point to an adequate alternative forum
2. private interests
3. public factors forum and state interests (such as
jury inconvenience, choice of law, etc.)
Mertz v. Mertz (NY 1936): Facts: car accident
NY (wife)
NY (husband)
Forum NY
Injury CT
Negligence CT
o Laws:
NY Spousal immunity (Husband not liable)
Mississippi No immunity (Husband is liable)
o RULE: public policy can be found in a states Constitution and lawsnot courts
own judgment. Holding: Here NY denies s capacity to sue and CT law cannot
grant her a remedy in NY courts. Note: The court is basically saying CT laws
apply, but were not going to apply it because we dont like it.
15
Holzer v. Deutsche Reichbahn-Gesellschaft (NY 1938): Facts: , a German Jew, and , a
German company, enter into an employment K in Germany, which required to pay if
K terminated. unable to employ because he was sent to a Death Camp. RULE:
every sovereign State is bound to respect the independence of every other sovereign
State; one cannot sit in judgment of the acts of the government of another done within its
own territory. Holding: it is not against public policy to hold foreign nationals to Ks
made according to the laws of that country. ( loses).
Lewis v. NYS Dept of Civil Service (NY 2009): Facts: Westchester County executives
issued opinions that their jurisdiction would recognized valid out of state same-sex
marriages. NY Public Policy Rule: Marriage valid where celebrated is valid
everywhere, unless (1) there is a specific statute invaliding the marriage; or (2) it violates
the strongly held public policy of NY. Holding: court affirms on different grounds.
Note: the court is not too concerned with the public policy implications of recognition of
same-sex marriages.
o Kramer argument: DOMA and the public policy exceptions between the state is
unconstitutional.
C. Pleading and Proving Foreign Law
Walton v. Arabian American Oil (2d Cir. 1956): Facts: Saudi Arabia law governs because
it is the place of the car accident
Ark.
Del., NY (Corp)
Forum NY Fed. Court
Injury Saudi Arabia
o RULE: The court cannot take judicial notice of the foreign law, unless the
meets his burden of proving the law in a way adequately to assist the court in
learning it. Note: this is part of the pleading requirements. argument #1: court
can assume all basic tort principles are the same. Reasoning #1: rejected;
common law is not common to the world. argument #2: Saudi Arabia is
uncivilized and has no law. Reasoning #2: rejected; court is loath to believe that
another country is uncivilized. Holding: failure to state a claim because did not
establish an important element of the claimright to recover under foreign law.
Common law rules:
1. Foreign law must be plead like other facts
2. Foreign law must be proved in conformity with evidence laws (aka expert
witnesses)
3. The issue of foreign law id decided by the trier of fact (aka jury). Cf. now foreign
law is no longer a question of fact for a jury.
4. Findings of the trier of fact on the issue of foreign law are only subject to very
limited appellate review.
Modern Evidence Rules:
16
1. (New) NY Evidence Rules: a party relying on foreign law shall state its substance
(CPLR 3016(3)); BUT courts are permitted to take judicial notice of foreign law
(CPLR 3511).
2. NY RULE: if law other than NY cannot be determined, then apply NY or, if in the
interest of justice, dismiss. MAJ RULE: no dismissal when foreign law cannot be
ascertained.
3. Federal Evidence Rule: if foreign law is relied upon then party must provide
notice in pleadings or other reasonable notice, if it arises later in the case. Note:
The courts decision is considered a question of law.
RULE: although FFC requires notice of law of sister states, it does not require courts to
notice the law of foreign countries.
o MAJ (30): most states authorize certification of a disputed question to an
appropriate court of the other state when it is a difficult question of first
impression or when the precedents conflict.
o Hypo: Facts: French husband dies with an American wife. In France, Daughter
wins her share of the estate. Issue: Does the first French judgment have res
judicata effect on the second US case? What law applies to the res judicata?
Holding: Since as far as the court could tell, French res judicata law is the same as
U.S. law and, anyway, the parties acquiesced to using U.S. law. Note: Multiple
judgments is discouraged, but it does not dictate the outcome.
Hypo: Facts: accident in Germany
U.S. (serviceman)
U.S. (discharged serviceman)
Forum NY
Injury Germany
o Laws:
NY NY speeding and traffic laws
German ?
o Issue: whether NY and German law were the same. Holding: NY refuses to apply NY
law; but rather gives a general negligence and speed charge without trying to find out
German law. RULE: law in common law countries is the same as common law in the
U.S.; and U.S. law can be assumed the same as civil law countries, if both parties
agree and show that the law is substantially similar.
II. Modern Approaches to Choice of Law
A. Summary of COL Regimes
Balancing systems:
1. Leflars Better Law
2. 6 of Second Restatement
3. Curries Interest Analysis
17
4. Baxters Comparative Impairment
Rule-based systems:
5. First Restatement
6. Presumptive Rules of Second Restatement
Intermediate approaches (mix rules and ad hoc analysis):
7. Cavers Dpeage in Interest Analysis
8. Kramer
B. Statutory Solutions
Note: Legislatures are reluctant to pass COL rules; and, if anything, states will generally
only act in very specialized areas. (Ex. NV applies to all insurers authorized who transact
in the state or people who claim under a K for an act arising in the state. Note: this law
may violate DP in some instances.) Exceptions: LA has complete COL code; and Ore.
has COL code for torts and K.
o Note: SOL, including borrowing statutes, discussion (book pg 96-97)
Europe: in all non-K actions, the international COL rule applies the law of the place of
the accident.
Contract actions (UCC)
o Restatement (first) 1-105: K must bear a reasonable relation to this state or
another, then the parties can agree that the laws of a particular state will apply.
When the parties fail to make an effective selection, then the old UCC used the
appropriate relationship test.
o Restatement (second) 1-301 (pg 92): Parties can agree on the law of a
particular state will apply. When the parties fail to make an effective selection,
then the UCC applies the COL rules of the forum. Note: the Restatement
(second) eliminated the reasonable relationship requirement; however, some states
have adopted the Restatement (second) while still retaining the reasonable relation
requirement.
RULE: Restatement (second): validity cannot be resolved by the parties.
(see also Beale book pg 102)
Hypo: Facts: an issue arises as the validity of an international K and there is no COL
provision in the K.
NY Company
Uganda Company
Forum NY
K Uganda
Delivery Delaware
o COL Rules:
NY Restatement (first) 1-105
18
Uganda
o Issue: what is appropriate relationship? Holding: NY law most like applies
because there is an appropriate relationship between NY because one of the
parties is incorporated there. Note: there is probably not a significant relationship
with NY. Under the significant relationship test, Uganda law most likely applies.
Hypo 2: Facts: same, but the K says that English law should apply. Holding: The COL
would be invalid under Restatement (first) because there is no relationship with England.
NY Gen. Obligations Law
o 5-1401 Parties to any K no less than $250,000 may agree that NY law applies
whether or not it bears any relationship to NY, regardless of Restatement (First) 1-
105
o 5-1402 if K is not less than $1,000,000 and contains a NY choice of law, then NY
courts must enforce a NY choice of law clause
C. Party Autonomy and the Rule of Validation
(Conflicting) Party Autonomy Rules:
o Rule of Validation: Parties are presumed to enter into valid contracts, so courts
will apply the law that will validate the obligation.
o Restatement (Second) 187(2)(a)-(b): requires substantial relationship between
K and COL and prohibits COL contrary to fundamental public policy. (DEF
fundamental book pg 109)
o Kramer: if parties pick a law and change in circumstances invalidates the K, then
the court cannot rewrite the K because that COL was not the partys intention.
Pritchard v. Norton (US 1882): Facts: argued that the bond of indemnity lacked
considerations and was therefore void under NY law.
LA
NY, Del.
Forum LA
K NY (made)
Bond LA
o Laws:
LA Permits prior consideration to hold for a promise
NY Prior consideration does not hold for a promise
o RULE: The parties will never pick an invalidating choice. Holding: Since
obligation of the K was to be performed in LA, the K was entered into with the
view the LA would apply, especially because it validates the K.
Siegelman v. Cunard White Star Ltd. (2d Cir. 1955): Facts: 11 months after the accident,
and enter into a tentative settlement. The offer is revoked three months later. Then
11 months later (13 months after Eng. SOL ran), the sues.
19
NY
?
Forum NY Fed. Court
Injury At sea
Ticket Purchase NY
Ticket COL Eng.
o Laws:
England 1 year SOL
NY More than 1 year
o Trad. RULE: The choice of law as to the validity and construction of the K must
be bona fide have some relation to the transaction. Holding: parties can prescribe
the law to be used as a body of interpretation because England is a bona fide
COL. Note: Modern RULE: allows choice of any law, as long as it doesnt
violate public policy.
Auten v. Auten (NY 1954) (pg 151, 206, 225): Facts: Couple executes separation
agreement in NY that requires husband to pay into a trust for wife; and in exchange wife
agrees not to sue husband. He stops paying and she sues in England, but fails to pursue
it. She then comes to NY to enforce agreement.
(wife) Eng.
(husband) Eng./NY
K NY
Marriage/family/children Eng.
First Suit Eng.
Forum (2nd Suit) NY
o Laws:
Eng. Earlier suit does not effect K (wife wins)
NY Earlier suit repudiates K (husband wins)
o RULE: center of gravity test (totality of the circumstances test). Holding: the
center of gravity is England and the connection with NY was fortuitous place of
making the agreement and trust. So English law applies and the wife gets to
enforce the K. Reasoning: this (best) practical result reflects the interests of the
jurisdictions and gives effect to the intention of the parties.
Wyatt v. Fulrath (NY 1965): Facts: during the Spanish civil war, the sent cash and
securities to NY for safekeeping and investment. The Duke dies and the monies go to the
Duchess, so she starts disposing of it.
(marital domicile) Spain
Property NY
Forum NY
K Spain
o Laws:
20
Spain Wife gets half
NY Wife gets all
o Holding: money has a situs and law comes with the situs, so NY law applies.
Reasoning: parties intentionally availed themselves of NY law, so application of
NY law is appropriate. Note: intent is judged at the time that the K is created.
o Issue: How would this come out under the Restatement? RULE: Restatement
requires an explicit choice of law provision in the K. Holding: Here there was
only an implicit choice of law. Note: there is a substantial relationship because
the property is in NY.
Hutchinson v. Ross (NY 1933) (pg 115): Facts: He promised $125,000 in the anti-
nuputual agreement and he puts $1,000,000 in trust for the wife in NY.
Quebec
Quebec
Forum NY
Trust NY
o Laws:
Quebec Transfer in coveture is invalid
NY transfer is valid
o Holding: after considering the intent of the parties, the situs of the trust, and
domicile of the parties, the court concluded that NY law applied. Reasoning: the
situs of the movables was NY and application of Quebec law would frustrate the
parties intention at the time the trust was established.
Shannon v. Irving Trust (NY 1937) (pg 116): Facts: NJ settler established an irrevocable
inter vivos trust in NY, but directed that the laws of NJ shall govern. RULE: Express
intent of settler that domiciliary law applied will be honored and there is no NY policy to
the contrary. Holding: NJ law applied.
In Estate of Clark (NY 1968): Facts: husband left most of his estate to his mother and
wife sues for half.
(wife) VA
Marital Domicile VA
Forum NY
K COL NY
o Laws:
NY Will provisions apply
VA Wife is entitled to half
o Holding: VA, the state of marital domicile, applies because it had the predominant
interest in applying its law to protect the widow. Note: this holding defeats the
husbands intent.
21
D. Interests Analysis
1. Introduction to Curries Interest Analysis
In Milliken v. Pratt example, Currie finds that within the 16 cases, the traditional rules
yields irrational results in 6 of them. Only 4 results in interest analysis are true conflicts.
o Four jurisdiction selecting factors
1. Domicile of
2. Domicile of
3. Place of K
4. Forum
o Facts:
Maine
Mass.
Forum Mass.
Place of K Maine
o Government Policies:
Maine Women can contract -> goal is to protect Maine merchants
Mass. Women cannot contract -> goal is to protect Mass. married women
Both Side Issue: on a more abstract level, arent both states interested in
commercial transactions?
o Analysis: Application of Maine law would advance the Maine legislations
interests by protecting this particular Maine merchant , while harming Mass.s.
And Mass. law would advance Mass.s interests, while harming Maines.
Holding: This is a true conflict.
Ex. Carroll v. Great Southern RR (see outline page 6): Facts:
Alabama
Alabama
Forum Alabama
Injury Mississippi
o Laws:
Alabama Employer liability statute
Mississippi Common law fellow servant rule (no employer liability when
employees injure one another)
Alabama Protect Ala. employees and hold Ala. employers to a standard of
care
Mississippi Protect Miss. employers
22
o Analysis: application of its law advances Ala. interest in protecting Ala.
employees and making employers pay. BUT application of Mississippi law
would harm Ala. without advancing Miss. interest (since there is no Miss.
employer here).
Wyatt v. Fulrath (see outline page 20): Facts:
(wife) Spain
(husband) Spain
Situs NY
Forum NY
o Laws:
Spain wife only take (based on domicile/status)
NY wife gets all (situs governs)
Spain Protecting Spanish beneficiaries and families
Mississippi Protecting trusts (and party expectations)
o Currie RULE: in a true conflict, forum law should apply. Holding: this is a true
conflict. Analysis: Spain law advances its own and harms NY; and vice versa.
Levy v. Daniels U-Drive (see outline page 11): Facts:
CT
CT (car company)
Forum CT
Injury Mass.
Negligence Alabama
o Laws:
CT Statutory strict liability for rental car companies
Mass. No liability
CT To make roads safer, by making sure rental car companies are
careful to whom they rent cars
Mass. Protect Mass. rental car companies
o Analysis: CT law protects both of CTs interests, but it does not harm Mass.
liability because there is no Mass. company in this case. Holding: This is a false
conflict.
Cons of Interest analysis:
1. Legislative intent and purpose is difficult to understand
2. Policies change based on the level of extraction
23
3. No good solution for true conflicts. Note: Kramer suggests that raising the level
of abstraction is one way to overcome the level of true conflicts
4. Un-provided for case (no state has an interest)
2. Identifying False Conflicts (New York Line of Cases)
Auten v. Auten (NY 1954) (see outline pg 20) RULE: center of gravity. Holding: English
Law governs because England has the most significant contacts (familial) with the matter
in dispute. Note: place of the K is not particular important (merely fortuitous).
Haag v. Barnes (NY 1961) (book pg 225): Facts: and entered into K for child support
payments for their illegitimate child. Mother than brought suit to increase the payments.
NY (Ill. at time of K)
Illinois
Forum NY
Affair NY
Childs birth Illinois
K Illinois
Performance of K Illinois
COL provision Illinois
o Laws:
NY Required judicial BIOC (higher support threshold)
Illinois K valid
o RULE: Center of gravity test: Look at all the contacts to determine where the
real world events and relationships are centered; then apply that law. Holding:
Illinois law applies because this matter has more overall contacts with Illinois,
including partys intent. Note: the court does not discuss the importance of
different factors or weigh any more than the others. Kramer Note: this outcome
(based on K-like principles) is affected by the fact that and were not married.
Babcock v. Jackson (NY 1963) (pg 138): Fact: groups of friends in NY leave for a long
weekend in Ontario. The husband crashes the car and hurts his guests.
NY
NY
Forum NY
Injury Ontario
o Laws:
Ontario Guest statute cannot sue host
NY No guest statute
o RULE: rejects traditional COL rules; court uses a variety of tests: (1) contacts,
(2) government interests, and (3) most signification relationship test. Analysis #1:
center of gravity is NY: friends from NY, car registered/insured in NY, and trip
origin NY. Analysis #2: This is a false conflict, because NY favors the NY s
here but Ontario guest statute only protects Ontario insurers, which doesnt apply
24
here. Prof Note: unclear if this is actually Ontarios interest. Analysis #3: NY has
most significant interest in regard to compensation here. Holding: NY law
applies.
Dym v. Fordon (NY 1965) (pg 139): Facts: one NY students at the Univ. of Colo. injures
another in a two car accident in Colorado.
NY
NY
Forum NY
Injury Colorado
Parties Relationship Colorado
o Laws:
Colo. Guest statute
NY Favors recovery
Colo. Protect Colo. insurers and provide recovery to third-party s over
ungrateful guests
NY Provide recovery to NY guests
o Holding: this is a true conflict. Court applied Colo. law because that is where the
parties resided for a prolonged period of time, so not unfair to apply Colo. law.
Note: interest analysis overruled by Tooker.
v.
Tooker v. Lopez (NY 1969): Facts: died in car accident caused by s daughter (who
was driving s car).
NY
Third-Party Michigan
NY
Forum NY
Injury Michigan
Car NY
o Laws:
NY No guest statute
Michigan Guest statute only allows recovery for willful misconduct
NY Provide recovery
Michigan ONLY to protect Michigan insurers (not prioritize recovery)
o Holding: an out-of-state Michigan guest statute does not apply to NY who sues
NY insured drivers in NY. Reasoning: Michigan statute would defeat an interest
of NY without advancing the interests of Michigan.
25
o Fuld Concur: Three Canons (adopted as law in Neumeier)
1. If and are domiciled in the same state, then apply that law
2. Apply the law of the place of the accident, if it is a true conflict where:
(a) acted in protected state of his domicile; or (b) acted in
protective state of his domicile
3. In all other cases, lex locus unless some interest of the well-functioning
system of interstate justice requires something else to be applied. Note:
This is the center of gravity test.
Hypo: Facts: under the Tooker facts, third-party from Michigan sues in NY. RULE:
Fulds Three Canons: here lex locus (cannon 3) applies. Holding: Michigan law applies
and third-party is denied recovery. Note: under this analysis, NY recovers, while
third-party does not.
Neumeier v. Kuehner (NY 1972) (pg 171, 147): Facts:
Ontario
NY
Forum NY
Injury Ontario
o Laws:
NY No guest statute
Ontario Guest statute
o RULE: the court adopts Judge Fulds Cannons, even for non-guest statute cases.
Holding: Ontario law applies because the Ontario statute was created for a
Ontario domiciliary such as . Analysis: NY has no interest in providing greater
recovery to an Ontario resident than Ontario would, especially at the expense of a
NY . Note: Neumeier rules look like the First Restatement, except Neumeier I
allows for false conflicts with the duel domicile loss allocation (false conflict)
exception.
Gen. RULE: when a conflict involves conduct-regulating laws, the law
of the jurisdiction where the tort occurred will generally apply. The
Neumeier rules only come into play if there is a conflict between laws that
allocate loss after a tort has occurred. (see book pg 161)
o Issue: How would Neumeier come out under real Currie analysis? Holding: This
is the unprovided for case no interests are hurt, but neither are there no interests
triggered/advanced by application of NY or Ontario law here. NY only interested
in NY s, and Ontario only interested in protecting Ontario s.
Schultz v. Boy Scouts of America (NY 1985): Facts: boys are molested by their a
scoutmaster and school teacher. School is in NJ and boy scout summer camp is in NY.
One of the boys commits suicide and the parents sue.
NJ
Boy Scouts NJ (TX after)
26
Franciscan Brothers Ohio
Forum NY
Tort NY
o Laws:
NY Charity liable for negligence
NJ Charitable immunity
TX No charitable immunity
Ohio Charitable immunity, unless there is negligence supervision
o RULE: contact depends on domicile at time of the tort. Holding #1: Here boy
scouts is a NY domiciliary for the purpose of this case. Prof Note: boy scouts
should be TX domiciliary because charitable immunity protects charities when
they have to pay the lawsuit and they are in TX when they would have to pay.
o RULE: Neumeier I Law of duel domicile. Holding #2: application of NJ law to
this entire dispute would further NJs interests because it has the most significant
relationship; and it will not frustrate NYs interest. Reasoning: charitable
immunity is really about loss allocation which only affects NJ. Prof Note: dont
we regulate loss in order to regulate conduct (which happened in NY here)?
Note: Ohio law doesnt apply because there are no Ohio s.
Danan v. Sinai Special Needs School (not in book): Facts: Child is molested by another
student during a Sabbath sleep over in a NYC apartment.
NY
NJ Charity
Forum NY
Tort NY
Relationship NJ (school)
o Laws:
NY Charity liable for negligence
o Holding: NY recovers under NY law. Distinguishing Schultz: received no
benefits from attending a not-for-profit school, because the paid out of state
tuition. ????????????
Mihalic v. K-Mart (Dist. Crt. of NY) (not in book): Facts:
Non-NY
NY (K-Mart)
Third-Party PA (Contractor)
Forum NY Fed. Court
Injury NY
o Laws:
NY Workers Comp Law contribution if gravely injured ( recovers)
27
PA No contribution ( does not recover)
NY Protects NY employees by allowing contribution
PA Protects PA employers by giving contribution
RULE: Court treats it as Neuimeier 2, but it probably is Neuimeier 3. Holding: NY law
applies because PA did not have a significant interest, while NY does have strong interest
in safety rules. Prof Note: this reasoning is problematic because we dont know s
domicile and NY safety interest not important in Schultz.
Cooney v. Osgood Machinery (NY 1993): Facts: Mueller acquired a machine originally
sold in NY. It modified the machine and is hurt. Under Missouri law, the is
precluded from accepting any further recovery from the employer by accepting the
workers compensation.
Missouri
(Osgood) NY
(Mueller) Missouri (impled)
Forum NY
Injury Missouri
Osgood Machine Sale NY
o Laws:
NY Contribution (Mueller owes Osgood)
Missouri No contribution
NY Requiring other s to contribute, in order to protect NY s from
overpaying
Missouri Protect its workers compensation program by restricting costs of
accident and regulate a fair basis to predict these costs
o RULE: Neuimeier II Place of the injury should apply to true conflicts. Holding:
Missouri law applies. Reasoning: (1) integrity of Missouris workers
compensation is critical here; (2) Osgood couldnt have expected contribution for
installing machine in Missouri, just because another company originally sold it in
NY; (3) application of NY law would create forum shopping; and (4) this is first
time NY law does not apply under NY interest analysis. Note: This is about loss
allocation, not primarily about conduct.
Padula v. Lilarn Properties (NY 1994): Facts: NY fell from a scaffold while working
at s construction site in Mass.
o Laws:
NY NY labor law imposes strict liability
Mass. Ordinary tort rules of negligence
28
o Holding: Mass. lawthe place of the accidentshould apply because these
provisions are primarily conduct-regulating.
In re Allstate Insurance Co. (Stolarz)*** (NY 1993) (pg 166): Facts: Stolarz was injured
in a two-car collision in NY. Although she kept car in NY, it was owned and insured by
her NJ employer. Stolarz received the limits of the other drivers insurance and then
sought an additional $35,000 from her insurer. Proc. His.: both lower courts applied NY
law, which did not allow recovery. ***RULE***: center of gravity or grouping of
contacts COL theory applied in K cases. Note: traditional COL factors should be given
heavy weight in this analysis. Holding: In reality this is a K case, not a tort, which
overwhelmingly centers on NJ: it is where the K was negotiated and made, where both
parties have a connection, and vehicle is registered in NJ.
o United Community Insurance v. Mucatel (NY 1987): RULE: NY (re)adopts
center of gravity approach for K cases
Gilbert v. Seton Hall*** (2d Cir. 2003) (not in book): Facts: is hurt in a rugby match
in NY
CT
NJ (Seton Hall)
Forum NY
Injury NY
o Laws:
CT/NY No charitable immunity
o Proc. Hist.: The trial court uses Neumeier 3 because there is a split domicile; and
applies NY law as the place of the injury. ***RULE***: Center of gravity.
Holding: here NJ law applies because the seed of the relationship was NJ.
o Note: regardless of Danan, at the end of the day, NY really focuses on center of
gravity and is not as policy oriented as true Currie analysis. In other words,
NY determines which state has the greatest real world connection with this
transaction, and then applies the policies of that jurisdiction.
3. The Unprovided-For Case
Neumeier v. Kuehner (again) (see outline page 26): Note: under true Currie analysis, this
is an unprovided-for case.
Erwin v. Thomas (Ore. 1973): Facts:
(wife) Wash.
Ore.
Forum Ore.
Injury Wash.
o Laws:
Ore. Wife gets loss of consortium
29
Wash. No consortium
Ore. Compensate Ore. wives
Wash. Protect Wash. s
o RULE: when no state has a vital interest in the outcome and there is no conflict of
policies/interests, then Ore. should does what comes naturallyapply Ore. law
(rational & convenient). Holding: law of the forumOre. lawapplies. Dissent:
Washing women should not be entitled to the rights of Ore. women. This is
failure to state a claim because one of the elements of a loss of consortium claim
is being an Ore. wife.
Kramer: there is not such thing as an un-provided for case. RULE: common interest
rule
o Ex. Neumeier: Reasoning: Kramer agrees that an Ontario cannot recover under
NY law, because NY only confers a right to recovery on its own domiciliaries.
But all s can assert a right to recover under Ontario law, for Ontario allows tort
damages to further the same interests. Holding: Ontarios guest statute does not
apply, the case is a false conflict, and recovers under Ontario law.
4. Resolving True Conflicts
DEF True Conflict: policy of each state points to a contact in that state, which shows
that each states policy would be advanced if its law ere applied in the case. Prof Note:
both states have a dog in the fight
a. Curries Solution: Apply Law of the Forum
Currie RULE: apply the law of the forum to true conflicts. Note: he rejected an approach
that would choose the better law, because it might place the court in a position of
condemning the law of its own state. Only Legislature is competent to chose among
competing interests.
o Currie RULE: if the forum has no interest of its own to advance in a true conflict
case, then the court should dismiss for forum non conveniens. Note: if that is
improper, then Curries suggested the better law or lex fori.
Lilienthal v. Kaufam (Ore. 1964): Facts: seeks repayment of promissory notes that
financed a joint venture to sell binoculars.
Cal.
(spendthrift) Ore.
Forum Ore.
K Cal.
o Laws:
Ore. Protects Ore. spendthrifts and their family
Cal. Protects Cal. s
30
Alabama Protect Ala. employees and hold Ala. employers to a standard of
care
o MIN RULE: when each state has a substantial interest in having its law apply, the
court should apply the public policy of the state in which it sits (law of the
forum). Holding: Ore. law applies. Note: The court cannot get past the wholly
domestic case, where cannot recover (citing Olshen v. Kaufman (pg 175)).
Critique: this rule encourages forum shopping.
o Analysis under other COL regimes:
Issue: what rule would apply under the traditional rules? RULE: Rule of
validation: law of the place of K. Traditional Holding: Cal. law applies.
Issue: what law would Kramer apply? RULE: common interests (see
outline pg 29). Kramer Holding: here there is a common interest in
enforcing Ks, so Cal. law applies. Cf. here the court doesnt do that
because the legislature has specifically subordinated this interest in favor
of the families of Ore.
Issue: how would NY courts resolve this case under Neumeier 2?
Neumeier Holding: injured in favoring regime, collects for caused
by under Cal. law.
b. Comparative Impairment
DEF Comparative Impairment (developed by Prof. William Baxter): normative
resolution of real conflict cases by applying the law of the state whose interests would be
most impaired if its law were not applied. Note: this is not balancing state interests; but
rather determining which one would be the most impaired, regardless of substance.
o Baxters Archaic Language: to subordinate the external objective of the state
whose internal objective would be least impaired in general scope and impact by
subordination in cases like the one in hand.
o Cf. Currie: he did not believe that it was suitable for courts to weigh policies.
o Cf. Kramer: state interests are never impaired by one of these cases because these
types of conflicts happen so rarely.
Kramer Rule: courts should adopt policy-selecting rules to apply the law
that reflects a generally shared policy or policy preference (book pg 199)
Comparative Impairment STEPS (book pg 189, 194-195)
1. Analyze the state polices in a wholly domestic situation (aka internal policies)
2. Is there a conflict?
3. If yes, the forum should reexamine its policy to determine if a more restrained
interpretation of it is more appropriate
31
4. If conflict still exits, determine how the laws would be advanced or impaired by
application of its law or another states law in the real case with multi-state
contacts (aka external policies)
5. Apply the law of the state whose domestic interests would be least damaged by
application of the other states law.
Peoplev. One 1953 Queen Victoria (Cal. 1957) (page 184, 190): Facts: Smith buys car in
TX with loan that prohibits him from removing the car from TX without notice to the
lender. Instead, Smith drives the car to Cal, filled with narcotics, and it is seized.
(lender) TX
TX
Forum Cal.
Criminal Seizure Cal.
Loan K TX
o Laws:
Cal. Loan holder must show that it did character investigation in order
to get car back
TX No such showing required
Cal. Discourage Cal. narcotic trade by putting burden on lenders to
investigate character
TX Protect lenders absolutely
o Traynor Holding: under TX law, the TX lender can enforce his mortgage on
Smiths chattel. Reasoning: Cal. law is not advanced and TX lender is innocent
under the TX lawwhich he is charged with knowing. Note: party expectations
that dealing is limited to TX.
Bernkrant v. Fowler (Cal. 1961): Facts: lender to forgive the remaining debt of in
his will, if refinanced. s agreed, but forgiveness was not in the will.
Nevada
Cal. (executrix);
Nevada (time of K)
Forum Cal.
K (oral) Nevada
Land Nevada
Performance Nevada
o Laws:
Cal. Oral promise void under SOF
Nevada No law on point
o Proc. His: Trial court applied Cal. SOF because Cal. has interest in protecting Cal.
estates against oral promises (reversed). Holding: Nevada law applies because it
has a more substantial interest in the Kgives effect to common policy of
32
enforcing Ks and the expectations of the parties that agreement made in view of
Nevada law. Note: Traynor focuses on contacts at time of K because place of s
domicile at death is merely fortuitous. Cf. Center of gravity of the K is in Nevada.
Bernhard v. Harrahs Club (Cal. 1976): Facts: served alcohol to Myers, until she was
too drunk to drive safely and hit .
Cal.
(bar) Nevada
Forum Cal.
Injury Cal.
Tortuous Act Nevada
o Laws:
Cal. Dramshop Act
Nevada No Dramshop Act (Common law)
Cal. Protect CA roads from obviously intoxicated drivers. Note: court
does not consider possible interest in controlling CA bars.
Nevada Protect bars from liability
o Re-examination of Forum Law: Instead of protecting all s on Cal. roadways, the
more narrow policy is to encompass all s who sell liquor in or solicit business
from Cal. Reasoning: Cals policy is at the heart of this case, because it would not
effective if it didnt apply to all s who regularly sold liquor to Cal. residents.
Nevada has less interest because it already imposes duty on by criminalizing
selling liquor to drunken people. Holding: Cal. law applies because its interest
would be more significantly impaired if not applied. Prof Note: this is a
manipulation through comparative analysis because the Nevada statute only
applied to habitual drunks and was repealed between the accident and the time
of this case.
Offshore Rental v. Continental Oil (Cal. 1978): Facts: Employee for is hurt s
property while there on business.
Cal. (Employer)
LA office, Del. incorporation
Forum Cal.
Injury LA
Employee TX
o Laws:
LA Does not permit recovery by an employer for loss of services
Cal. Employer may recover under an implied right in the CA
LA Protecting LA companies against liability
Cal. Protecting CA companies for compensating loss
33
o RULE: impairment depends on how strongly a states policy is held, which in turn
depends on the laws current vitality. Holding: LA law applies because Cal. has a
lesser interest in application of an unusual an out-modeled statute, while LA just
pronounced its progressive law recently. Further Reasoning: Cal. could insure
against damage because it can foresee risk of injury to its own employees; while
is operating in a no liability zone and, thus, can not get insurance.
c. Principles of Preference
DEF Cavors Principles of Preference (neoterritorialism): territory based expectations
that determine when the law of state which served one purposed should be preferred to
the law of another, which serves a different purpose. Reasoning: These are trying to
implement party expectations and fairness principles. Note: They also bear an unsettling
resemblance to Neumeier because these are territorial based expectations.
o Cf. Vested Rights Theory: Principles of Preference about giving effect to the
partys expectations based on where they are, not what rights personally vested in
them.
Principles: (book pg 201-202)
o First principle: the law of the state of injury should apply if it is more protective
of s than the law of the state in which the resides or acted
o Second principle: the law of the state where a acted and caused injury should
apply if it is less protective than the law of the s home state
o Contracts: apply the protective law of state if the party protected was from that
state and affected transaction was centered there. Exception: the court should
follow the express intention of the parties as to the applicable law.
Cipolla v. Shaposka (PA 1970): Facts: went to school in Delaware with . was hurt
in Delaware while being driven home from school by .
PA
Del.
Forum PA
Injury Del.
o Laws:
PA No guest statute
Del. Guest statute
o Analysis: This is a true conflict because PA favor recovery for the PA , and Del.
protects the Del. s from liability. RULE: Second Principle: law of the state
where acted should apply if it is less protective than s home state. Rules
Reasoning: by entering the state, the visitor has exposed himself to the risks of the
territory and should not expect to subject persons living there to financial liability
that s law did not create. Holding: Del. law applies because it is only fair to
allow to rely on law of state where he acts. Note: this rule is territorial, not
personal.
34
E. ALI, Restatment (Third) Foreign Relations Law
Restatement (third) of Foreign Relations law, 402: a statute as jurisdiction if:
1. (a) conduct that takes place in its territory; (b) status of persons or interests in
things present within its territory; or (c) conduct outside its territory that has or is
intended to have substantial effect within its territory
2. The activities, interests, status, or relations of its nationals outside as well as
within its territory
3. Certain conduct outside its territory by persons not its nationals that is directed
against the security of the state or against a limited class of other state interests.
Restatement (third) of Foreign Relations law, 403(1): a law cannot apply its own with
respect to a person or activity having connection with another state when the exercise of
such jurisdiction is unreasonable.
o Eight Factors to Determine if Unreasonable ( 403(2)): Note: None of the factors
is more important than another
1. The link of activity to the territory of the regulating state
2. The connectionsnationality, residence or economic activitybetween
regulating statue and the person principally responsible for the activity to
be regulated, or between that state and those whom the regulation is
designed to protect
3. The character of the activity to be regulated, the importance of the
regulation to the regulating state, the extent to which other states regulate
such activities, and the degree to which the desirability of such regulation
is generally accepted
4. The existence of justified expectations that might be protected or hurt by
the regulation
5. The importance of the regulation to the international political, legal, or
economic system
6. The extent to which the regulation is consistent with the traditions of the
international system
7. The extent to which another state may have an interest in regulating the
activity
8. The likelihood of conflict with regulation by another state
Western Airlines (not in book): Facts: UK carrier began very cheap flights from the US to
UK. The other carriers sue in the US for damages under the US Sherman Act for
violation of price fixing.
US (Airlines)
UK (Airlines)
Forum US
Injury US
35
o Laws:
US Prohibits price fixing
England Encouraged price fixing in certain industries, including trans-
Atlantic carriers serving US-UK routes
US Protect consumers, but encouraging competition
England Foster growth of British industries
o Issue: Can the US apply its law to these facts? Holding: yes, both the US and UK
have jurisdiction to apply its law because a UK company that is affecting
companies and prices in the US. Holding: US law applies. Reasoning: Although
this seems to be a true conflict, UK merely permits price fixing, but does not
require it. So airlines can comply with US law, while not being affected by UK
law.
F. The Place of the Most Significant Relationship (Second Restatement)
Structure: Second Restatement provides a series of presumptive references in specific
categories of cases, but with the exception of the most significant relationship test.
Purpose: reduces certitude but accords greater sensitivity in judgment to important values
that were formally ignored by the First Restatement.
o Note: Many courts that claim to follow the Second Restatements most
significant relationship test apply it in a way that is indistinguishable from
straightforward interest analysis. (book pg 136).
o Cf. Kramer hates Second Restatement because it is just a faade for courts to
use any approach to choose the law it prefers.
Most Significant Relationship Factors ( 6) (aka center of gravity analysis)
a. the needs of the interstate and international systems
b. the relevant policies of the forum
c. the relevant policies of other interested states and the relatives interests of those
states in the determination of the particular issue
d. the protection of justified expectations
e. the basic policies underlying the particular field of law
f. certainty, predictability, and uniformity of result
g. ease in the determination and application of the law to be applied
Grouping-of-Contacts Provisions:
o Tort ( 145(2)): Contacts to be taken into account in applying the principles of 6
in tort cases include:
a. the place where the injury occurred
b. the place where the conduct causing the injury occurred
36
c. the domicile, residence, nationality, place of incorporation, and place of
business of the parties
d. the place where the relationship, if any, between the parties is centered
o Contract ( 188(2)): when the parties have not chosen an applicable law, the
contacts to be taken into account in apply the principles of 6 include:
a. The place of the contracting
b. The place of negotiation of the contract
c. The place of performance
d. The location of the subject matter of the contract
e. The domicile, residence, nationality, place of incorporation, and place of
business of the parties
Phillips v. General Motors Corp. (Mont. 2000): Facts: car accident
(family) Montana
Surviving Child NC
Michigan
Forum Montana
Manufacturing Michigan
Car Sale NC
Accident Kansas
o Laws:
Kansas Strict liability; damage cap
NC No strict liability
Montana Strict liability; no damage cap
Michigan Unknown
o RULE: Restatement Second: law of the place of the injury, unless someone has a
more significant relationship under the 145 contacts. Analysis:
Factor #1: Needs of Interstate and International System. Reasoning:
adoption of the Second Restatement test does this by itself by respecting
the state with the most significant relationship.
Factor #2: Policies of interested states. Side RULE: the relevant residence
is s residence at the time of the injury. Side Holding: for the purposes
of this case, is a Montana resident, because the only reason the
surviving child lives in NC is because of s negligence. Reasoning:
NC No interest in having its law apply -Under the whole
law of NC, they would apply Kansas law because it still
uses traditional COL rules. Note: The Restatement
Second frowns on renvoi, but here it is in order to write
off North Carolinas interests.
Michigan No interest in having its law apply Interest in sale from
37
manufacture (not at issue here)
Kansas No interest in having its law apply Protect KS parties
from unsafe products sold in KS (not at issue, because no
products bought or sold in KS here)
Montana ONLY STATE WITH INTEREST
Factor #3: Justified Expectations. Side RULE: no justified expectations
when party acts without thought to legal consequences (i.e. negligence).
Factor #4: Basic Policies Underlying Particular Field of Law. Side RULE:
when there are minor difference between the policies of the interested
states, then the court should apply the local laws. Reasoning: this rule
does not apply here because the states have very different laws.
Factor #5: Certainty, Predictability, Uniformity, and Ease. Reasoning: no
state here has a more significant relationship with regard to this
consideration.
o Holding: Montana has most significant relationship to this case, because Montana
law is to protect consumers and here Montana residents were injured. Prof Note:
This is just interest analysis with a little window dressing.
Wood Bros. Homes v. Walker Adjustments Bureau (Colo. 1979): Facts: had to stop
construction for because it did not have a NM contracting license. now seeks to
recoup money spent prior to cessation.
(Walker) CA
(Wood Bros) Colo.
Forum Colo.
K Colo.
Performance NM
o Laws:
Colo. K is enforceable (quantum meriut or estoppel)
NM K not enforcement (valid license is a condition precedent for
bringing suit)
Colo. Protect commerce by enforcing K
NM Protect NM citizens from bad construction by unlicensed contractors
o Proc. Hist: Lower court focused on subpart e of 6 and reasoned that Colo.s
interest in the validation of the K is the state with most significant relationship.
RULE: Second Restatement: in a K for service, the law of the state of
performance applies, unless another state has a more signification relationship
( 196)). In other words, if performance is illegal in place of performance, then K
will usually be denied enforcement. Holding: NM law applies because
Restatements presumption cannot be rebutted. Reasoning: Validation of
contracts is a broad non-specific policy, which should not be given as much
38
weight as NM specific policy of protecting buildings and citizens. Note: this is
essentially center of gravity analysis.
o Issue: What would happen under traditional rules? Possible Holdings:
Colo law of the place of the K because this issue goes to the validity of
the K
NM law of the place of the performance because quantum meriut goes
to the issue of performance
Colo NM statute for condition precedent is procedural, so it doesnt
apply in other courts because it only bars the remedy.
Colo. rule of validation of the K (party expectations) (see also Second
Restatement 6(e))
G. The Better Law: Leflars Choice-Influencing Considerations
5 Choice-Influencing Considerations:
1. Predictability
RULE: This only applies to Kwith COL provisionsand other
consensual transactions; not torts. Goal: discourage forum shopping
2. Maintenance of Interstate and International Order
RULE: This is false conflict interest analysis. Goal: discourage preference
for application of forum law
3. Simplification of the Judicial Task
RULE: Forum law applies its own procedure. Note: ease of judicial
performance may be a consideration, but it is often be outweighed by
other factors.
4. Advancement of the Forums Governmental Interests
RULE: if forum has a strong policy interest, then it should act in
accordance. Note: Application of forum governments interests does not
necessarily mean the forums law; but rather the states total interest,
including its interest as a justice administering state.
5. Application of the Better Law
RULE: absent a strong forum policy, the court ought to apply the better
law. Note: this is an objective, not subjective, determination. Goal:
accepts that judges make COL decisions based on the substantive
outcome; rather than hiding behind escape devices.
o Cf. Currie not a fan of better law analysis, but acknowledge there were some
situations in which state interest provide no answer and justice between the parties
became the paramount consideration (book pg 241)
Kell v. Henderson (NY 1966) (book pg 231): Facts:
39
Ontario
Ontario
Forum NY
Injury NY
Negligence Alabama
o Laws:
NY Allows recovery
NY Holding: NY had no interest in compensating the parties, but it still applied its own
law under the center of gravity test. Leflar Analysis: (1) no predictability problem here
because it is a tort case. (2) A defined test that applies law of state with substantial
connection. (3) Simplification not an issue because the court is capable of applying laws
of either state. (4) Forum laws interest in controlling liability for NY car accidents
would be undermined by application of out-of-state rule. (5) Guest statutes are not the
better law.
Milkovich v. Saari (Minn. 1973): Facts:
Ontario
Ontario
Forum Minnesota
Car Ontario
Injury Minnesota
Hospitalization Minnesota
o Laws:
Minnesota No guest statute
o Factor analysis: Simplification, predictability, and maintenance of international
system are not at issue here, just like in Kell. RULE: guest statutes are not the
better law violate sense of fairness and equality. Holding: Minnesota law
applies because it is better and there is a sufficient connection with Minnesota
(accident and hospitalization). Prof Criticism: Forum law is always better
because it is what your state policy is and what your statute legislature has told
you is better.
Japson v. General Casualty Co. of Wisconsin (Minn. 1994): Facts: Japson is hurt in a real
estate agents car in AZ. At time of accident, Japson lives in Minn. near the ND border,
but later moves to AZ. While he is a Minn. resident, he buys cars through a Minn.
agency and registers then in ND, because ND has lower insurance rates.
Minnesota
ND (Insurer)
Forum Minnesota
Injury AZ
Driver AZ (settled with )
40
o Laws:
Minnesota Stacking: If you have three cars and get in an accident with an
underinsured motorist, then you can be covered by the policies of
every one of your own cars added together.
ND/AZ No stacking
o Analysis: (1) Predictability if you accept the benefits of ND law, then you should
also accept the burdens (otherwise forum shopping); and expectation of the parties
was ND law because those were the rates was paying. (2) Maintenance of
interstate order is not an issue under this COL regime. (3) Simplification is not an
issue. (4) Forums interest Minnesota does not want to be a magnet for cases like
this. (5) Better law Here the laws are no better or worse than on another; sometimes
they are just different. DEF better rule of law: the rule that makes good socio-
economic sense for the time when the court speaks. Holding: ND law applies.
H. Problems Old and New
1. Dpeage
Adams v. Knickerbocker Nature Socy (Hypo) (pg 245): Facts: borrows an unregistered
truck, gets in an accident without fault, and hurts .
NY
NY Charity
Forum
Injury Mass.
o Laws:
NY No charitable immunity; Fault based liability only
Mass. Charitable immunity; Strict liability
o Wholly Domestic Outcomes:
NY: would not recover, because the was not at fault.
Mass: would not recover, because the has charitable immunity.
o Traditional rules (Dean Griswold): RULE: traditional locus of the accident.
Holding: no recovery under Mass. law.
o Cavers Dpeage: RULE: apply the rule of different states to different issues in
a single case, depending on which state has the greatest interest in having its law
apply to the particular issue. Issue #1: Who has the greatest interest over the
charitable immunity issue? Analysis: Mass. wants to protect Mass. charities and
NY wants them to answer in tort. Sub-holding: since is a NY charity, NY law
should apply as to the charitable immunity. Issue #2: Who has the greatest
interest over fault laws? Analysis: NY is only interested in drivers in NYwhich
didnt happen here, but Mass. interest is protecting s from unregistered cars.
Sub-holding: Since there is an unregistered car in Mass., Mass. has the greatest
interest and its liability law should apply. Holding: charity is not protected by
charitable immunity and Mass. law imposes liability; pays.
41
o Currie criticism: It is one thing to fall between two stools; it is quite another to
put together half a donkey and half a camel, and then ride to victory on the
synthetic hybrid. Currie Holding: To impose liability on a free from fault,
makes no sense.
o NY Center of Gravity: Holding: NY law is about loss allocation, so charitable
immunity of place of accident should apply. Note: it is not so clear as to the
conduct regulation consideration.
Maryland Cas. Co. v. Jacek (NJ 1957): Facts:
Maryland (insurer)
NJ (wife)
Forum NJ
Accident NY
Victim NJ
Insurance NJ
K NJ
o Laws:
NJ Spousal Immunity; Insurance K pays all claims
NY No spousal immunity; K must have specific clause to pay claim
o Holding: NJ law applies to the K and the law of the tort applies to spousal
immunity. Reasoning: Party expectations: once there is no spousal immunity,
then the had an expectation that the insurer would pay all claims wherever he
got in an accident. Note: under whole law of either state, would not be able to
recover. Counter argument: both states want to protect insurance company from
paying in spousal suits (both states want to avoid collusion, but they have taken
different laws to get there.) So, by splitting the laws and allowing to collect, it
undermines the policy of both states.
2. Encore for Renvoi
Pfau v. Trent Aluminum Co. (NJ 1970): Facts:
CT
NJ
Forum NJ
Injury Iowa
o Laws:
Iowa Guest statute
CT/NJ No guest statute
o Conflict of laws:
CT Lex locus
NJ Interest analysis
42
Iowa Guest statute to protect Iowa s
o argument: If you apply CT law, then the whole law should apply; and thus Iowa
law controls. RULE: No renvoi in interest analysis. Reasoning: Traditional COL
rules do not shed light on a states interest in a particular case; only interested in
uniformity/simplicity. Holding: Since Iowa has no interest in these parties and
CT/NY have the same law, then this is a false conflict. No guest statute applies.
Scholarly opinion
o Currie: Objective analysis: Court should ignore sister states COL in order to
make determination objectively; with one exception for use of forum COL to
resolve true conflicts.
v.
o Kramer: Subjective analysis: COL effects substantive policies of other states, so
COL should be taken into account into its subjective determination. In other
words, if CT cares enough interest in this case to apply its own law, maybe CT
law should apply. (see pg 256)
American Motorists Ins. v. ARTRA Group (Md. 1995): Facts:
Alabama
Alabama
Forum Md
K Illinois
Contaminated Site Md
o COL Laws:
Md Lex Locus (Illinois)
Illinois Place with most signification relationship to the K (Md)
o RULE: where the forum would apply the law of the foreign jurisdiction and the
foreign jurisdiction would apply the law of the forum, then renvoi can be a
tiebreaker. Holding: here Md. accepted the renvoi and applied Md Law it had the
most the most significant contacts, (even though it is lexi loci and K was in
Illinois).
3. Rules v. Standards
Paul v. National Life (WV 1986): Facts:
WV
WV
Forum WV
Injury Indiana
o Laws:
Indiana Guest statute, unless conduct was willful
WV No guest statute
43
o RULE: lex loci and public policy exception still apply. Reasoning: the modern
approaches sound pretty intellectual, but we still prefer a rule, . . . [which] get
cases settled quickly and cheaply. Holding: Indianas guest statute contravenes
the public policy of WV and are unenforceable by WV courts.
4. Complex Litigation
Two Types of Complex Litigation:
o Disbursed torts (ex. Agent Orange)
o Pinpoint torts: e.g. something very bad happens in one spot (ex. Airplane crash)
Federal Jurisdiction:
o Multiparty, Multiforum Trial Jurisdiction Act (pg 290): federal courts have
jurisdiction over actions resulting from a single accident that causes at least 75
deaths on the basis of minimal diversityany two adverse parties are citizens of
different states.
o Class Action Fairness Act (pg 295-96): federal jurisdiction over class actions
based on state law where the amount in controversy exceeds $5 million in the
aggregate and minimal diversity exists.
Which COL rule applies in consolidated mass tort actions?
Klaxon v. Stentor Electric Mfg. (US 1941): RULE: COL rule of the court of initial
filing applies. Reasoning: COL are substantive for purposes of Erie; and
otherwise, there would be forum shopping and inequities in the law.
Van Dusen v. Barrack (US 1964) (pg 355): RULE: If the case is transferred,
keeps her COL. In other words, carries her COL rules with her. Note: two
different COL regimes may apply to two different s. Note: since SOL is
procedural for COL, then also keeps her SOL from place of filing
In re Air Crash Disaster Near Chicago Illinois on May 25, 1979 (7th Cir. 1981): Facts:
federal court consolidates cases from several states that are related to the airplane crash.
Issue: whether s are liable for punitive damages.
s Illinois, NY, Michigan, PR, Hawaii
s Md (incorp), Missouri, Del. (incorp), NY, TX
Forum Illinois Federal Court
Original Forums Illinois, NY, Michigan, PR, Hawaii, CA
Injury Illinois
Design CA
Maintenance Okla.
o State COLs:
Illinois Second Restatement Most Significant Interests
NY Second Restatement
Mich./PR Lex Locus
Hawaii No COL
44
o Issue #1: whether s are liable for punitive damages in s states of domicile.
RULE (here only): when place of business and place of conduct each has equally
strong conflicting interest, then the place of the injury applies. Holding #1: no
punitive damages; although CA and Missouri have greater interest than Ill., they
do not have greater interest than each other, so all things being equal the law of
the place of an accident (with interest in air safety) should apply to resolve the
true conflict.
o Issue #2: whether s are liable for punitive damages in s states of domicile.
Ill. s: just like holding #1; place of the accident applies, so no punitive
damages. CA s: under comparative impairment, here Illinois law applies
because it has the unique interest in both awarding (like Missouri) and denying
(like CA) punitive damages and the interests of Missouri and CA could be
achieved through other alternatives. NY s: NYs COL is the functional
equivalent of Illinoiss significant relationship test. Michigan and PR s: under
lex loci, Illinois law applies here because it is the place of the accident. Hawaii
s: Forum law should apply because Hawaii has no COL, but if it had the choice, it
would pick the Second Restatement; besides Hawaii is like Illinois and doesnt
have punitive damages. RULE: Absent a COL regime in the sister state, the
forum should apply its own law. Holding #2: no punitive damages for anyone.
Note: the extent to which courts are willing to bend ordinary COL rules to ensure
that one law only is selected to govern all the claims on any given case.
In re Agent Orange Product Liability Litigation (E.D.N.Y. 1984)(pg 280): Facts: 2
million veterans got sick from Agent Orange and brought hundreds of suits against the
herbicides manufactures. RULES: court examined the applicable law under the Second
Restatement, interest analysis, Leflars choice-influencing considerations, the traditional
rules, and a lex fori approach. Holding: all jurisdictions would pick a new national-
consensus law formulated just for this case. Reasoning: any narrow and mechanical
state choice of law system simply collapses under the weight of the multiplicity of
contacts, policies, and unarticulated or conflicting state interests in this unique case.
Note: court is really trying to avoid application of Vietnamese law (lex loci).
o Kramer: COL is substantive, so courts should not alter COL rules for complex
cases. Courts are competent to apply multiple laws to different s and claims.
ALI Mass Tort Rules 6.01 (pg 288)
5. Conflicts in Cyberspace
Licra et UEJF v. Yahoo! Inc. (France 2000): Facts: Yahoo had links to buy Nazi
paraphaneilia and to pages with Nazi texts. Jewish and Antisemistism groups brought
suit in France to enjoin Yahoo from displaying this content under French law. RULE:
France has every right to regulate wholly or in substantial part takes place in its territory;
AND conduct outside that has or is intended to have a substantial effect in its territory.
Holding: Yahoo must warn of illegality and prevent web surfers when accessing this
content.
Yahoo! Inc. v. La Ligue Contre Le Racisme et LAntisemitism (N.D. CA 2001): Facts:
same as above. Yahoo sought declaratory judgment seeking nonenforcement of the
45
French judgment in the United States (First Amendment violation). RULE: the extent to
which US honors the judicial decrees of foreign nations is a matter of choice, which is
governed by the comity of nations. Holding: here the judgment is unenforcement
because it violates the First Amendment (which outweighs comity). Note: American
courts tend not to enforce judgments founded on foreign law that conflicts with the First
Amendment.
o Ehrenfeld v. Mahfouz (Eng. 2008): Facts: Ehrenfeld wrote a book and 15 copies
were sold online to buyers in the UK and a few chapters are available online.
Woman in UK sues Ehrenfeld in UK under UK liable law and Ehrenfeld defaults.
Issue: whether Mahfouzs judgment is enforceable in US. RULE: CPLR 5304:
NY court need not recognize judgment in a defamation action obtained outside
US unless court before which the matter was sought determines the law provides
just as much protection for freedom of speech as the Constitution. Holding: here
judgment is unenforceable in NY (only) because UK did not have PJ. Note: this
may not have been a problem without the internet.
o Morrison v. Australian National Bank (Can. 2010): Facts: Some of the securities
fraud occurred in the US and some in Australia. Issue: do American securities
laws regulate fraud in connection with trades on foreign exchanges of foreign
countries bought only by foreign investors? Holding: court has not decided yet.
Specific Cyberspace Rules (pg 308):
o Obscenity: RULE: determined by the standards of the community where trial
takes place. Note: unconstitutionally overbroad effectively subject web material
to the standards of the most restrictive community.
o Gambling: RULE: The act of placing a bet constituted gambling within the state,
wherever the servers or stakes are located.
III. Constitution and Choice of Law
A. Limits of Jurisdiction
1. Due Process: Interest unfair litigant surprise
Home Ins. Co. v. Dick (US 1930): Facts: brought suit to recover on an insurance policy
for the total loss of a tug in a fire. K required the suit to be brought in 1 year, but a year
has passed.
(domicile) TX (assignee)
(residence) Mexico
Mexico
Forum TX
K Mexico
Original Insured Mexico
Insurance payments Mexico
o Laws:
TX K SOL cannot limit time to less than 2 years
46
Mexico K SOL applies
o Issue #1: whether this case involves substantive or procedural law. Holding #1:
This K provision is substantive, is not about SOL, it is about the parties right K
for rights and obligations. Issue #2: whether TX can apply its own substantive
law. RULE: Under DP, a state without any contacts to the litigation does not have
jurisdiction to proscribe or regulate, because it would cause unfair surprise.
Thus, state may only control: (1) Ks made in state; and (2) Ks performed in state.
Holding #2: TX cannot affect a Mexican that was never in or invoked the
benefits of TX. Note: under the public policy exception, state may refuse to
enforce rights, but it cannot abrogate the rights of parties that have no relation to
the state.
Harford Acc. & Indem. Co. v. Delta & Pine Land Co. (US 1934): Facts: Deltas treasurer
rant off with the bank account and Delta sues insurer to get indemnity for the loss.
(Delta) Miss., Tenn.
(Hartford) Tenn.
Forum Miss.
K Tenn.
Theft Miss.
Insurance Payments Miss.
o Laws:
Mississippi K SOL limitations invalid
Tenn. Clause valid
o RULE: Regardless of the public policy exception, a state cannot ignore rights
that lawfully vest outside its borders, if the forum only has a slight connection
with the K. Holding: Mississippi activities in connection with the policy were
found to be so slight and casual (performance at most involved only casual
payment of money in Miss.) that Mississippi can not apply its own law in such
way as to enlarge the obligations of the Tennessee contract. Note: Brandeis is
framing the issue in terms of state interests.
v.
Watson v. Employers Liability (US 1954) (not in book): Facts: used a hair-waving
product made by Toni (a subsidiary of Gillette). sued her insurer for indemnity for her
injuries. K stated that had to first sue Toni.
LA
Mass./Illinois
Forum Alabama
Manufacturer Illinois/Mass.
Injury LA
K Mass./Illinois
o Laws:
LA K provision invalid
47
Mass./Ill. K valid (cannot sue insurer)
o Holding: Louisiana has a legitimate interest in safeguarding the rights of persons
injured there. In view of that interest, the direct action provisions here challenged
do not violate due process.
2. Full Faith and Credit: Interest in Interstate Comity
General FFC Rules
1. In a transitory action, states cannot dictate that they are the only state which can
adjudicate the dispute.
2. States cannot refuse to adjudicate transitory cases.
Bradford Electric Light Co. v. Clapper (US 1932): Facts:
VT
VT
Forum NH
Injury NH
Employment K VT
o Laws:
NH Workers comp. or tort suit allowed
VT Only workers comp. allowed, unless express K to the contrary
o RULE: under FFC, can be denied recovery because of: (1) lack of jurisdiction;
(2) lack of remedy; (3) violation of public policy; or (4) penal liabilities. BUT
defenses are different. RULE: when denial of defense subjects to irremediable
liability and the defense is not obnoxious to forums public policy, then state
should recognize sister states defense in order to reduce interstate friction.
(OVERRULED see Pacific Employers) Holding: here NH must recognize VTs
defense to s suit (no tort suit because not expressly allowed in this K).
Alaska Packers Assoc. v. Industrial Acc. Commn (US 1935): Facts: sues to recovery
California workers compensation.
? (nonresident alien)
Cal.
Forum Cal.
K Cal.
Performance Alaska
Injury Alaska
o Laws:
Cal. Cannot K for workers compensation law of other states
Alaska K valid
o DP Holding: There is enough contact between this case and both states can apply
either law without surprise. RULE: Balancing test: only if the interest of the
foreign state is superior is there a rational basis for denying courts the right to
48
apply the laws of its own state. (OVERRULED by Pacific Employers) Holding:
even though Alaska has an interest, it is not clearly superior, so there is no reason
to deny Cals legitimate interest in enforcing its own laws in its own courts. Note:
this allows a state to presumptively apply its own law; burden is on the proponent
of foreign law to prove that it is superior.
Pacific Employers Ins. Co. v. Industrial Acc. Commn (US 1939): Facts:
Mass. (domicile); Cal. (resident)
Mass (boss/paychecks), Cal. (office)
Forum Cal.
Injury Cal.
Negligence Alabama
o Laws:
Cal. Workers compensation for past and future medical
Mass. Compensation restricted to injury already suffered
o RULE: Full faith and credit does not compel a state to substitute the statues of
other states for its own when dealing with a subject matter with which is has an
interest. Note: the court is no longer balancing interests. Holding: Mass. has an
interest over the Mass. employee-employer here, but it isnt exclusive, such that it
does not override Cals interest in an in-state accident. Note: Mass.s interest is
obnoxious to Cal.
Carroll v. Lanza (US 1955) (pg 335): Facts:
Missouri
Missouri
Forum Arkansas
Injury Arkansas
Treatment Missouri
o Laws:
Missouri Workers compensation is an exclusive remedy
Arkansas Permits suit against third parties
o RULE: state has a legitimate authority to regulate cases following on in-state
injury. Note: All that the Constitution requires that there could be a future
interest, as a justice administering state, to litigate cases of this type. Holding:
Court finds that Arkansas has an interest here. Note: this is the FFC floor.
3. Convergence
Nevada v. Hall (US 1979) (pg 353): Facts: state official from Nevada drives to Cal. and
injuries a Cal. citizen.
Cal.
State of Nevada
Forum Cal.
Injury Cal.
49
o Laws:
Cal. No limits on liability
Nevada Restricts awards against the state to $25,000
o Holding: Cal. refuses to apply Nevada law, and the jury awards $1,150,000.
Reasoning: suits involving traffic accidents outside of Nevada could hardly
interfere with Nevadas capacity to fulfill its own sovereign responsibilities.
Franchise Tax Board v. Hyatt (US 2003): Facts: Hyatt filed a Cal. tax return representing
that he ceased to reside in Cal. and became a Nevada resident. During the Cal. audit,
Hyatt alleged numerous torts against him.
Nevada
Cal. Tax Board
Forum Nevada
Injury Nevada
o Laws:
Cal. Tax Board gets absolute immunity
Nevada No immunization for intentional torts
o Holding: Nevada free to apply its law to the intentional tort claims against the
Cal. Tax Board. RULE: states are free to apply the law of either state (that has
purposeful availment or minimum contacts), as long as they apply the principles
of comity with a healthy regard for competing sovereign interests.
Allstate Ins. v. Hague (US 1981): Facts: Husband is killed on the back of someone elses
motorcycle. The driver does not have insurance, but husband has three insured cars.
(executrix) Wis. -> Minn.
Wis. (insurer)
Forum Minn.
Driver Wis.
Decedent Wis.
Decedents employer Minn.
Marital domicile Wis.
Accident Wis.
K policies Wis.
o Laws:
Minn. Permits stacking
Wis. No stacking
o RULE: state must have significant contacts or aggregation of contacts,
creating state interests, with the parties and the occurrences or transaction
has to ensure that the COL is neither arbitrary nor fundamentally unfair.
Plurality Holding: here Minnesota court properly applied Minnesota stacking law
because it has three contacts with the case: decedent worked there, did business
there (see cases pg 350-351), and s non-pretextual move to Minnesota before
50
case is filed. Note: contacts need not be related to the specific incident in order
for state to have a significant contact.
Kramer: this case is rightly decided, but the court did not focus on the
right connections. Under DP, there is no litigant surprise because all the
parties understood that the Allstates policy was likely to yield an accident
in Minnesota (even though that did not occur here). Under FFC, it is not
unfair because Minnesota has an interest in protecting its new resident. So
both constitutional provisions are satisfied.
o Stevens Concurrence: Concur RULE: FFC is only implicated if a state courts
choice of forum law threatens national unity by unjustifiably infringing on the
legitimate interests of another state. Concur Holding: Wis. interests are not
threatened here because the parties did not make the K in reliance on the
application of Wisconsin law and Allstate knew they could be liable under
Minnesota law. Powell Dissent: Just because Minnesota has PJ does not mean
that these trivial and irrelevant contacts are sufficient to justify application of
Minnesota law.
Phillips Petroleum Co. v. Shutts (US 1985): Facts: Phillips leases mineral rights from
property in 11 states. When Phillips raised gas prices, it held on to the money until it got
federal government approval and did not pay interest on those withheld subsidies.
11 states (class action)
Del (corp), Okla (bus)
Forum Kansas
Injury 11 states
K 11 states
o Laws: All states have different interest rates. Issue: can Kansas apply its own law
to the entire class action. Kansas argument: procedural interest in resolving all of
these suits efficiently in a class action in Kansas (bootstrapping). RULE: Allstate
Rule: must have significant contact or significant aggregation of contacts, creating
state interest, such that COL is neither arbitrary nor fundamentally unfair.
Holding: although Kan. law can apply to the property situated in state, this forum
lacks interest in claims unrelated to the state, such that application of Kan. law is
arbitrary. Note: the court is particularly concerned with DP rights of absentee s.
Sun Oil v. Wortman (US 1988): Facts: same as Shutts. Kansas court on remand
determines case is timely under Kansas SOL; and determines that each would apply
equitable principles, which seem to look a lot like Kansas law.
o RULE: states are not required to apply its own SOL, but it may. Reasoning:
(1) under FCC, historically SOLs were procedural and Erie is no reason to upset
that precedent. (2) Under DP, a states interest in regulating the workload of its
courts and determining when a claim is too stale suffices to give it legislative
jurisdiction to control the remedies available in its courts. Holding: Kansas is free
to apply is SOL to all the claims., even though it is longer than any other
interested state.
51
o RULE: To constitute a violation of the FFC or the DP Clause, it is not enough
that the state court misconstrue the law of another State; rather, the
misconstruction must contradict law of the other State that is clearly established
and that has been brought to the courts attention. Holding: Kansas properly
applied equitable principles to determine the interest rates for each set of s
because it is not a complete deviation from the law of the other states. Note:
Allstate still survives after Phillips (aka APPLY BOTH).
o OConnor Dissent: This is a violation of FFC because the Kansas offered no valid
reason whatsoever to ignore the interest rates set by the other states. As to DP, a
state, which wants to avoid its constitutional obligation to apply the substantive
law of another State, need take only invent a legal theory so novel or strange that
the other State has never had the opportunity to reject it and, then, predict that
the other state would adopt that theory if it had the chance. Note: this is similar to
Agent Orange decision.
52

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