1. Renvoi
  2. Very common for renvoi arguments to be offered if you don't like the choice of law conclusion that the court would otherwise come to.
  3. Circling problem
  4. Assume that the choice-of-law rules of the forum say that Swiss law applies. Some argue that if you adopt renvoi it will result in endless circling. Assume using Swiss law means making the choice of law that a Swiss Court would make. If the Swiss Court would choose the forum’s law, then-so the argument goes-mustn’t it adopt renvoi and make the choice of law but the forum’s court would do?
  5. In fact adopting renvoi will almost always never lead to circling.
  6. In re Schneider's Estate
  7. A U.S. and Swiss citizen domiciled in NY. She had Swiss property, but the administrator of the estate sells it and the case is in NY.
  8. N.Y.'s choice of law rule is the situs state’s law for validity of a will and intestate successsion
  9. In the first restatement, real property is an exception to the prohibition on renvoi.
  10. Court looks to what a Swiss court would do with these facts. The NY court said that a Swiss court would look to NY law. Although the NY court was probably wrong about this. Swiss law is unclear as what would happen to someone of dual nationality in the U.S.
  11. Swiss court says NY law should be used, and a NY court says to look at Swiss law.
  12. NY court has to assume that a Swiss court would not adopt renvoi itself. The Swiss court would apply NY substantive law, but would not do what a NY court would do.
  13. There would be no circling in this case, since the Swiss court would not apply the whole law of NY (and would therefore not use total renvoi), just the internal, substantive law.
  14. A NY court does not have control over Swiss property, so a Swiss court would never adopt the total law of NY. Only Swiss law/courts can control the property.
  15. NY uses renvoi because it is Swiss land. There would only be circling if Switzerland used renvoi because they focus on the domiciliary of the party.
  16. If there is a particular reason to adopt renvoi under the first restatement (property and family law matters), the other jurisdiction's courts won't have the same reasons to adopt renvoi. Therefore, it will not be circular renvoi.
  17. Circling renvoi is theoretically possible, however, if it is unclear which court has the final power and which court is the most interested. The other court would have to have some reason to imitate what the forum courts are doing. It is hard to figure out a scenario in which this would occur.
  18. Uniformity is not the only goal of a choice of law analysis. Forum courts will not always want to do exactly what the court's of another jurisdiction will do.
  19. If there ever is theoretical circling, the jurisdiction will eventually choose an arbitrary stopping point. It will generally be the forum law that applies in this case.
  20. Some interest analysts say that there is no renvoi problem. Just look at the interests of the various states and figure out which one is greater. But there is something like renvoi, in the sense that the choice of law provisions of the sister state might be used to determine whether the sister state is interested in its choice of law rules applying.
  21. On the other hand, choice of law rules might not be exemplary of states' interests.
  22. Will discuss this later.
  23. Renvoi is motivated by a desire for uniformity in the choice of law context. You need a focal point as to what jurisdiction’s choice-of-law rules to coalesce around.
  24. Public policy exception
  25. True public policy exception
  26. This is a jurisdictional theory
  27. The cause of action or a defense is so offensive to the forum state that the action is dismissed without prejudice.
  28. This coincides with the vested right theory. Other courts can always take the case
  29. False public policy exception
  30. A veil for interest analysis for 1st restatement jurisdictions.
  31. The 1st restatement jurisdiction does not want to change its laws or rules, but uses the public policy exception to get around the choice of law provision applicable to the case.
  32. Apply forum law rather than dismissing the case
  33. Penal laws
  34. Punitive damages used to be characterized as penal law.
  35. Primarily applies to criminal law now or a civil case where the fine goes to the state.
  36. In criminal cases the real choice of law analysis goes onwhen the court determines whether it has the power to take the case. Once it makes this determination that there is jurisdiction, the forum applies its own law.
  37. In general, only the state where the crime occurred has jurisdiction to take the case. The state then applies its own law to the case.
  38. Virginia Cases
  39. McMillan v. McMillan, 219 Va. 1127 (1979)
  40. VA couple gets in accident in Tennessee. Wife sues husband. Tennessee has spousal immunity law, whereas VA does not.
  41. Modern jurisdictions would apply the law of the state of the marital domicile.
  42. Second restatement - § 145. The General Principle
  43. The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
  44. Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
  45. the place where the injury occurred,
  46. the place where the conduct causing the injury occurred,
  47. the domicil, residence, nationality, place of incorporation and place of business of the parties, and
  48. the place where the relationship, if any, between the parties is centered.
  49. These contacts are to be evaluated according to their relative importance with respect to the particular issue.
  50. Section 169 for the second restatement - intra-family immunity -
  51. (1) The law selected by application of the rule of § 145 determines whether one member of a family is immune from tort liability to another member of the family.
  52. The applicable law will usually be the local law of the state of the parties' domicil.
  53. VA does not want to change its choice of law rules to follow the second restatement. So it tries to make the 2nd Restatement and modern approaches look worse than they are.
  54. Babcock v. Jackson (NY 1963) - discussed in case
  55. NY plaintiff is a guest in a car with a NY driver. Crashed into a stone wall in Ontario
  56. The issue was the application of the Ontario guest statute (says you can't sue the host for negligence)
  57. NY held that Ontario guest statute does not apply.
  58. This case has tones of interest analysis.
  59. NY is worried about deterring all negligent actions. NY is interested in its normal tort law applying.
  60. This is a false conflict. Ontario is not interested in its guest statute applying, and NY is interested in its normal tort law applying to its own citizens. Ontario would probably prefer that NY law would apply, which deters more accidents from out of state residents.
  61. Kell v. Henerson (NY Sup. Ct. 1965)
  62. Residents of Ontario in NY
  63. Trip benefits and ends in Ontario
  64. Accident in NY
  65. Court applied NY law, not Ontario guest statute
  66. This is a true conflict. Ontario is interested in its law applying. Ontario is worried about fraud and social relations concerning its own citizens. NY is also interested because they don't want accidents occurring in NY. NY does not care about fraud. They care more about deterrence of accidents. Applying Ontario law would lead to more accidents in NY, so a NY court would prefer its own law applying in order to deter the most accidents since NY allows compensation in guest accident situations.
  67. These two cases are very inconsistent according to the VA court. VA argues that these modern approaches are terrible. But in reality, these cases are not all that inconsistent. Under interest analysis, the cases don't contradict each other.
  68. VA court sticks with the first restatement
  69. Jones v. R.S. Jones, Inc. 246 Va. 3 (1993)
  70. Plain crash in florida. It was serviced in VA. Wife of deceased pilot sued the service company. Issue is whether Florida 2 year SOL applies or VA's one year catch-all SOL applies.
  71. Florida's wrongful death statute applies. It is the place of the harm. That much is clear.
  72. Florida's wrongful death statute has its own SOL. Virginia has a procedural SOL applying to any COA before a VA court that does not have a SOL.
  73. VA's wrongful death SOL (which is also two years) is substantive, so it does not apply to this case.
  74. The VA supreme court could have said that the VA SOL is both substantive and procedural, rather than using the one year catch all or trying to apply Florida's SOL provision as substantive. But they did not do this.
  75. The VA supreme court wanted to ensure that the one year catch-all provision did not apply to an action in which both states have a policy of two year SOL in wrongful death cases.
  76. Virginia Supreme Court says that Florida's SOL is substantive.
  77. The Florida COA is statutory, and the SOL is close to the COA in the statute. The Florida SOL is tied to the wrongful death action. They are bound together. However, statutory placement is not dispositive to determining whether an SOL is tied to a COA.
  78. This is not a proper application of the Davis v. Mills test, because the SOL is contained in a different statute than the one that defines the COA for wrongful death. The SOL in this case is in a statute that lists a variety of COA's
  79. Buchanan v. Doe, 246 Va. 67 (1993)
  80. Plaintiff had an insurance policy that covered accidents from uninsured motorists. P was a VA driver. Policy issued in VA. He was run off the road by a truck in West Va. The statute in WV required contact, and there was no contact between the vehicles in this accident. The truck driver left, so the plaintiff is trying to get the uninsured motorist coverage from his insurance company. He must sue John Doe. If P succeeds, he can then get coverage from the insurance company. The insurance company will act as the defense for the John Doe.
  81. VA doesn’t have the contact requirement because they are trying to incentivize safe driving.
  82. Under interest analysis, WV has this contact requirement to prevent fraud. The fraud would be felt in VA, where there is no contact requirement. The plaintiff was from VA. So it makes sense that VA would want their law to apply and WV has no interest in it applying.
  83. Under the 1st restatement, this case is much more complicated than an interest analysis.
  84. VA characterizes this as a contract action, rather than a tort action. The COA arises out of the contract with the insurance company. Without the insurance contract, the plaintiff would not be able to sue John Doe or recover money form the insurance company.
  85. The no contact rule is a contractual rule. The no contract rule is not a tort rule. It does not define the scope of liability of the John Doe. If you know who the John Doe is, he would still be liable for the accident even though there was no contact.
  86. The contact rule only applies when no defendant can be found and you want to recover under the contract with the insurance company.
  87. The problem with the plurality’s argument is that the initial action against the John Doe is characterized as a tort action, according to Professor Green.
  88. "The forum state applies its own law to ascertain whether the issue is one of tort of contract.” But the court also talks about how WV interprets its own statute. Under a true 1st restatement analysis, you don't normally care about how WV would apply its own law or WV's choice of law rules.
  89. See quote in PP
  90. The court also discusses other policy arguments. Uniformity as you move from one state to another.
  91. Perkins v. Doe (W. Va. 1986)
  92. WV domiciliary get into an accident in VA (no contact)
  93. Suit brought in federal court against John Doe.
  94. Lee v. Saliga (W. Va. 1988)
  95. Dreher v. Budget Rent-A-Car System, Inc., 634 S.E.2d 324 (Va. 2006)