CONFLICTS OF LAW SPRING2014

1. Traditional Approach/First Restatement

TOPIC / CONTENTS
Overview: / History:
  1. Territorial Approach:It is concerned with the location of specific acts or the lex loci
  2. Story, J: Emphasized that every state possessed and exclusive sovereignty and jurisdiction within its territory.
  3. Beale: Proposed that certain rights were “vested” in the territory which they took place and were later valid and enforceable everywhere
  4. The First Restatement:
  5. Approach:
  6. Places a high value on uniformity of result
  7. Predictability
  8. Discouragement of forum shopping
  9. Disadvantages:
  10. Can be too rigid and mechanical and can lead to unjust results
Rule:
  1. In determining what law to apply, look to the law of the state where the right was acquired as in a K or where the last event necessary to make an actor liable for an alleged tort takes place.

First Restatement Torts / The Law Where the Tort Occurred Controls:
  1. First Restatement, 384: The substantive law of the state where the act fiving rise to the a claim occurred, determines tort liability. Carroll
  2. The last act rule: The place of the injury governs even if the negligence occurred and domiciles of the parties is else where, i.e., the place of the wrong in the sate where the last event necessary to make an actor liable for an alleged tort takes place.
  3. Exceptions:
  4. If the law of the place of wrong depends on the application of a standard of care that standard should be taken from the law of the place of the actors conduct. 380
  5. If a person required or forbidden to act under the law of the place of acting should not be held liable for consequences in another state, 382.
Policy behind rule:
  1. Encourage predictability: However, it is hard to use this rationale b/c accidents are not predictable.

First Restatement Contracts / Assumptions that are made when viewing choice of law and contracts:
  1. Assumptions are made about validity and performance:
  2. Courts assume that validity and performance may be distinguished
  3. That these both occurred in separate places
  4. This encourages preemptive forums shopping for where to pick your place of contracting
  5. This system is only predictable if there are attorneys and judges who agree on the facts which is unrealistic.
Validity determined by the state in which the contract is made:
  1. Things considered to concern validity: Law of the place of the K determines the capacity to K, form of promise, mutual assent, consideration, requirements to make a K, what makes a K void/ voidable, time and place to be performed.
  2. Beale: Law of the place where the principle even necessary to make the K is binding.
  3. The First Restatement:
  4. To determine the laws of the validity of the K, forum looks to state where K was made:The law of the state where made governs validity. (First RST, 311 and Millikan).
  5. Validity of different types of contract:
  6. Formal K effective: If on final delivery, where the delivery is made (312)
  7. Informal Bilateral K:
  8. Where second promise is made in consideration of first promise(325)
  9. Place of contracting is where accepted: where agent delivers or, if sent by mail, place where acceptance is sent from (326)
  10. If accepted by mail: place of contracting is where the acceptance is mailed
  11. If accepted by telegraph: place where the message of acceptance is received by telegraph company for transmission
  12. If by phone: place where the acceptor speaks his acceptance.
  13. Informal Unilateral K:Where event takes place which makes the promise binding (323)
  14. Example of application:
  15. Milliken v. Pratt:
  16. FContract signed in OR, but mailed to Maine by a married woman who could not contract under Mass law, but could in Maine.
  17. HK created in Maine, when women could K, so that law applies even though couldn’t K in mass then—should recognize expansions of woman’s rights (P Wins).
  18. Vested Rights: Party rights vest at the moment the contract is made not completed when signed, but when goods delivered in reliance one the guarantee (unilaterial K)
  19. Reasoning: K was complete when guarantee was received and acted on in OR—so treated contract as if made and performed in Maine
  20. NotesThe change in law does not matter because the right vested in Maine.
Performance—Apply the law of the place of the performance:
  1. Place of the performance: Duty will be discharged by compliance with the law of the place of performance of promise with respect to manner, time, locality, sufficiency, and excuse for non performance (332)
  2. Law of the place of performance controls if:Applying law of contracting requires determination of minute details of manner, method and time and sufficiency of performance, and is unreasonable.
  3. Example of application:
  4. Pritchard v. Norton: K was invalid in place of agreement, but valid in place of performance. Courts assumed they intended to make K valid so used law of the place of performance(validation theory).

First Restatement and Land/Wills / The First RST and Land—Usually the law of where the land is located governs:
  1. Governing Principles:
  2. Overall premise: Based on the premise that no state can affect property out of its own territory. A state can prohibit operation of foreign laws with in its territory or allow some but not others
  3. Lord Barron: If personal property is disposed of lawful under the law of the country where it is, that disposition is binding everywhere
  4. Land Taboo Rationale:(1)Power: Official of state A are the only ones who can lawfully deal with land in that state, (2) Priority: Not a good alternative that would trust the homes a state’s interest in the land, (3) Organization: want to keep searches of land ownership within the law of the situs to apply to have uniformity in searches.
  5. The majority rule: leaseholders are considered to be immovable property
Wills:
  1. In Barrie’s Estate:
  2. FDeceased executed a will leaving land in Iowa to a church in Ill, but will marked “void,” (improper revocation of Illinois, ok in Iowa), so under intestacy lwas of Illinois, property yin that stated distributed to heirs, but under laws of Iowa it goes to church.
  3. Iowa courts can interpret a non-residents will who dies owning real property in Iowa, but because the will was revoked in Ill does not mean it is revoked in Iowa.
  4. Rule(Beale): Law of the place the immovable is located governs the revocation of a will and the capacity/ of the testator and the effect of the will.
  5. Statute proffered by heirs is inapplicable because deals with creation of will, not revocation

Property / Certain land is treated as if immovable property and situs usually governs:
  1. Certain land is treated as immovable for conflict of law purpose such as:The most notable are lease holds
  2. Situs usually governs for: immovable property, creation of original title, the validity and effect of a subsequent transfer, creation of encumbrances or subsidiary interests, and the legal effect of such events as marriage or death.
  3. Policy reasons for situs to apply:
  4. (1) the land and attachment are in the exclusive controls of the state and they officials of the state are the only ones that can actually deal with the physical property.
  5. (2) immovable are of the greatest concern to the state in which they are situated,
  6. (3) the demands of certainty and convenience.
Exceptions to the situs rule:
  1. Succession of movables: decedents domicile
  2. Rights of spouse in another’s movable: determined by domically rather than situs
  3. Beale on policy behind these exceptions:The situs state always has power to apply its own law but that it deferred to the state of domicile on matters of secession and material rights so that the entire estate could be distributed as a unit.

First restatement and Domicile / The elements to determine domicile under the First RST is (1) physical presence and (2) intent to remain:
  1. Intent to remain:Home/car ownership, registration, voting church or community membership (normally an issue of fact for the jury), intent to remain “for a time at least test”
  2. Temporary absence does not destroy: changes only when you establish a new domicile b/c you can only have 1 domicile
  3. Last until new one formed: Continual until new one is found
  4. If abandoned: It only takes day for a new one to established
  5. Totality of circumstances: provides leeway and erodes any bright line rules.
  6. Variations of domicile rule:
  7. Domicile for spouses: Can have two separate domiciles if there is a separation
  8. Have intention to live in new place but never make it to inhabit it (16 cmt. (a) 2nd RST): Presence is necessary, and statements that a moment’s presence is enough should not be taken literally. Will not be enough to be domicile unless they are there for a time at least(gives a ton of discretion).
  9. One day is usually enough.
  10. But presence with a definite interest may be enough.
  11. Send wife b/f reaching the place:
  12. First RST: Would not change domicile unless husband reaches place
  13. Second RST: would change place and serve a substitute
  14. But Maricopa County: Have to touch it yourself, but in some situations it could change
  15. Died in hotel in new state that intended to live with out finding a home:
  16. May establish new domicile:Establishes a new domicile. Winans .
  17. Cross state boarder, but do not reach property: There is presence in the new state even though does not actually reach the house. Ok even though the exact address is unknown, domicile refers to state, but not exact house
  18. Home is straddled btw the borders of two states:
  19. Location of entrance: The location of the entrance to the dwelling would determine the domicile. (RST 25)
  20. Where person sleeps: Where the person sleeps determine the domicile
  21. If person is moved somewhere against their will, e.g., prison or military:
  22. Cannot if by compulsion: Cannot acquire a domicile of choice by any act done under legal or physical compulsion. (1st RST)
  23. Typically does not: A person does not usually acquire a domicile of choice by his presence in a place under physical or legal compulsion.(2nd RST)
  24. Should not be precluded from showing new domicile: Someone who is forced to move should not be precluded form showing that he has developed a domicile in the place which he was forced to move to. Stifel.
  25. White v. Tennant:
  26. FLeft home in WV, intended to move to PA farm, moved stuff to new house, got sick died I WV, no will so intestate there?
  27. H Deceased domiciled in PA at death. He left WV with the intention and purpose of making a home in PA—left his home without intent of returning (PA Law)
  28. Rule Law of decadents domicile state at the time of death controls the distributions of his estate
  29. Policy behind domicile rules: A man may go to many different states during his lifetime. Yet it is desirable that someone of his legal internets should at all times be determined by a single law…particularly matters where continuity of application of the same law is important as family and decedents estate. First RST (11)

Escape Devices—Tort vs. Contract / Overview of escape devices:
  1. Policy reasons for escape devices: The traditional rules were though of as being rigied, and the severity of the rules led to exceptions. Because the interest argument was not available during the Fist RST/traditional approach jurisprudencejudges began employing certain escape devices to address the critiqued arbitrariness in applying the first RST. All of the escape devices have equal application, and judge have discretion t apply them how they like.
Characterization of the case:
  1. What is characterization:The first RST puts a premium on characterizationof the issue.
  2. Serves a policy function: As a remedy of the overly rigid results of the traditional rules, judges used characterization of an issue as a rationalizing decide to decide whose law to apply.
  3. Can be used as a tool for counsel: How an issue is characterized could be used as a method for counsel to get a favorable law.
  4. Criticism: It is very flimsy in its application
  5. Method of characterizing an issue:
  6. (1)How law is characterized by legislature: Did statute use SOL for K or for tort?
  7. (2)Look at statute’s purpose: If the law where the parties act does not give legal validity to their acts---no other law should validate.
  8. (3) Look at policy/justice:Is there sufficient interest in case to apply x law?
  9. (4) Judicial activism/ “just” result: Some judges are less willing to imply terms into a contract, so it’s a judicial deference decision? Or judges want the morally just thing to be done so they puck the law that best suits the most rational decision.
Tort v. Contract:
  1. The role of converting from a contract to a tort: Can escape the old territorial rules by characterizing the issue whether and it can give or strip the ability of a party to be able to bring suite.
  2. Cases:
  3. Levy v. Daniels:
  4. FAgency rented to driver, driver had and accident and passenger sued rental company
  5. The court:The vested rights doctrine would refer to the law of the place of contracting which was CT, where the agent would be liable to the third party beneficiary of the lease K for the subsequent tort, BUT by using re-characterization as an escape device the situs of the applicable law is shifted form the place of the tort accident (Mass) to the place of the contract (CT)
  6. H Contract claim, not tort. The CT statute making agencies liable for damage done during rental was implied into the contract under CT law.
  7. Reasoning: Purpose of CT statute was to give the injured person a right to recover form the rental agency—encourage people to rent to careful drivers to keep the roads safe for everyone.
  8. Hamschild v. Continental:
  9. FHusband and wife in accident in CA. There is spousal immunity in CA where the tort occurred. In Wis. Wife could so.
  10. Reasoning: Court re-characterized it as a family law issue because historically the ability to sue was properly decided by the law of the family’s domicile-they have primary responsibility for regulating relationships.
  11. Policy reasons: To look where the accident occurred would cause confusion because the rights duties, dishabilles and immunities conferred or imposed on the family relationship would constantly change as members of the family crossed state boundaries during temporary absences form their home.
  12. Holding:
  13. Family law/capacity case—W can sue b/c spousal immunity case, not a tort case—so look to the husband/wife’s domicile.
  14. Other issues involving torts and contracts:
  15. Vicarious liability:
  16. Tort question: When a person authorizes another to act for him in any state and the other does so act for him in any state, whether he is liable for the torts of the others is determined by the law of the place of the wrong. (Section 387 RST).
  1. Release from liability:
  2. The construction and validity of a release form liability is governed by the law of the place where it is executed, but its availability as a defensein an action in tort is governed by the place whether the injury is committed. Freeman.

Escape Devices—Substance v. Procedure / Overview of Substance v. procedure:
  1. Substance—dependent on COL: When a foreign law is applicable, that law only governs matters of substantive law.
  2. Procedure—dependent on forum: The forum will not adopt the procedure of the foreign forum, it will always apply its own procedural rules.
  3. Characterization: This largely hinges on an issue of characterization (Bournias)
The restatement first 584:
  1. Forum characters based off of its own COL rules: Forum determines according to its own COL rules whether a given question is one of substance or procedure.
  2. But this does not change substantive rights: A party’s legal rights and duties shall not be substantially varied b/c of the forum in which an action is brought to settle the dispute
  3. Applications to SOL:
  4. Barred by forum SOL, but not foreign SOL where claim arose:Claim barred by forum SOL but not by SOL where cause of action arises, then the claim is barred (RST, 603)
  5. Barred by foreign SOL where claim arose, but not forum SOL: the claim will not be barred (RST 604)
  6. Action may not be maintained in any jurisdiction if: a state’s law is condition a right to expire after a certain SOL has elapsed, no action begun after that period can be maintained in any jurisdiction (RST 605).
  7. If the SOL is substantive: if it is bound up in the state that created the cause of action and it is foreclosed everywhere.
  8. Other applications in RST:
  9. Procedure in court, forum: All matters of pleading and the conduct of the proceeding by the court or by the jury (592)
  10. Mode of trial: The law of the forum determines whether an issue of fact shall be tried by the court or by a jury (594)
  11. Proof of facts: (1) the law of the forum governs the proof in court of a fact alleged. (2) the law of the forum governs presumptions and inferences to be drawn from evidence (595)
  12. Witnesses: The law of the forum determines the competency and the credibility of witnesses (596)
  13. Evidence: The law of the forum determines the admissibility of a particular piece of evidence (597).
Applying the test to determine if it is substantive of procedural: