Conflicts Flashcards
(131 cards)
1
Q
Alabama Great Southern RR v. Carroll
Traditional Rules
A
The law of the state where an employee is injured determines whether the employee may recover against the employer.
2
Q
Traditional Rules, Tort
A
“Use the law of the place of the wrong.”
But where is the place of the wrong
“The place of the wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place.” (Restatement)
But some jurisdictions use the place of negligence, while others use the place of the injury
3
Q
Exception to Traditional Rule, Tort
A
If the law of the place of the wrong depends on “the application of the standard of care,” that standard should be taken from the law of the “place of the actor’s conduct.”
4
Q
Milliken v. Pratt
A
A contract validly made in the place of contract will be enforceable everywhere, regardless of the law of domicile (for capacity purposes).
5
Q
Traditional Rules, Contract
A
Use the law of the place of contracting.
6
Q
Cavers’s quote
A
There can be no true Justice without uniformity.”
7
Q
What we want from COL rules (6 things)
A
- Certainty
- Predictability
- Uniformity
- Ease of Application
- Avoidance of Forum Shopping
- Good, fair, just, equitable results
8
Q
Restatement Hypo: A woman boards a train in Ohio, where an acquaintance gives her a box of poisoned candy. She eats some of the candy in Michigan, falls ill in Indiana, and died in
Illinois.
A
The Restatement says that it is where the victim fell ill. That is the place of the wrong.
9
Q
Determination of the place of contracting
A
Under its Conflict of Law rules, in determining the place of contracting, the forum ascertains the place in which, under the general law of Contracts, the principal event necessary to make a contract occurs. Not until then, does the forum refer to the law of such state to ascertain if, under the law, there is a contract
10
Q
Determination of the place of contracting, e.g.
A
Where acceptance is authorized to be sent by mail, the place of contracting is where the acceptance is mailed
11
Q
Bilateral contract
A
Promise for a promise;
made at the place of the second promise
12
Q
Unilateral contract
A
promise in exchange for performance
made
the K is formed where it is performed (place of performance)
13
Q
Immovables
A
use the law of the situs
14
Q
Succession in movables
A
law of the decedents domicile
15
Q
COL case process under traditional rules (7 steps)
A
- facts/issues
- characterization of the case
- COL rule (according to forum)
- COL application
- Substantive rules
- Substantive application
- Conclusion
16
Q
how to characterize covenants that run with the land
A
real property
17
Q
how to characterize covenants that DO NOT run with the land
A
contract
18
Q
how to characterize covenants that you can’t tell whether they run with the land or not
A
property
19
Q
Change in domicile
A
To determine change of domicile, you need three things: (1) residence (actual or inchoate), (2) intention to change domicile, and (3) the two must concur in time.
Actual, physical presence, even for an instant
20
Q
How does this work when there is real property in your estate in one jurisdiction, but you’re domiciled in another jurisdiction?
A
The real property goes according to the situs of the land, while the movable property is distributed according to your domicile.
21
Q
Walton v. Arabian American Oil Co.
Where foreign law is relevant to a tort action but difficult to comprehend and where neither party pleads or proves such law, must the court take judicial notice of it?
A
Where foreign law is relevant to a tort action but difficult to comprehend and where neither party pleads or proves such law, the court need not take judicial notice of it, but it does not have to.
22
Q
Exception to the one domicile rule
A
inheritance taxes; Dorrence
23
Q
Quote from Dorrence on changing domicile
A
“A person’s expressions of desire cannot supersede the effect of his conduct.”
24
Q
Cavers’s 1933 Article (3 things)
A
(1) He’s worried about justice. The writers of the Restatement wanted choice of laws to be so certain and mechanical, but they did that to the sacrifice of justice. The starting result should be: what is the just result.
(2) Basically, his argument is not that he has an answer, but rather that we should keep looking for something better, with justice over certainty.
(3) But even under the first restatement, application is pretty hard. When all is said and done, if the rules are actually easy to apply, what good is the first restatement? Cavers says not much.
25
The law of another jurisdictions law used to be an issue of fact
until 1938 when the Fed. R. Civ. P. changed it to a matter of judicial notice.
26
If the forum state refuses to consider the choice of law rules of the state to which it refers...
it is said to “reject” the renvoi
27
if a jurisdiction follows the foreign choice of law rule
it is said to “accept” the renvoi
28
If the renvoi is accepted and the state whose choice of law rules are examined refers the case to a third state
there is said to be a “transmission.”
29
If the foreign choice of law rule is found to refer to the internal law of the state
The renvoi is said to be “partial”
30
If the foreign choice of law rule is found to refer to the whole law of the state
Total renvoi
31
Renvoi in the First Restatment
Only in two cases:
questions of “title of land” and the “validity of a decree of divorce” were controlled by the law of the situs of the land, or of the domicile of the parties, respectively, “including the Conflict of Law rules of that state.” The Schneider case falls within one of these exceptions.
32
Forgo's Case
End the total renvoi by accepting the reference back to the forum's law.
33
Why do courts use renvoi
to get back to the forum
34
traditional practice
traditional rules, plus escape devices
35
Cutts v. Najdrowski (gifts of money)
A gift of money is governed by the law of the place where the gift is made.
36
Levy v. Steiger
When whether something is substantive or procedural has already been decided, even in a non choice of law case, that holding is controlling.
37
Grant v. McAuliffe (4 things)
1. Prior precedent is not binding if it wasn't a COL case.
2. survival statutes are procedural for conflict of laws purposes.
3. They ruled this way, even tho the Restatement said otherwise--basically, the Restatement is not law.
4. Impetus for Currie's interest analysis
38
Kilberg v. Northeast Airlines, Inc. (3 things)
Rule. Courts may refuse to enforce the law of another jurisdiction when it is “so completely contrary to” the jurisdiction’s public policy.
Holding in Kilberg is recognized as having nothing to do with public policy, but rather that wrongful death damage ceilings are procedural – most jurisdictions following Kilberg for its procedural holding. NOTE: This holding is restricted to damage ceilings. All other cases, damage ceilings = substantive
Davenport v. Webb -- declined to extend
39
Leflar, Honest Judicial Opinions
Goal reasons and rightness reasons. iv. Leflar thinks it doesn’t matter whether you favor rightness or goal – but try to maximize both.
40
Goal reasons
look forward – promote desired social goals
| look to support decisions on the grounds that the decision will create precedent
41
Rightness reasons
look at the present and the past – on accepted standards of rightness and wrongs, goodness and badness – apply to particular facts in the particular case
42
substance v. procedure (3 things) (Levy examples)
1. substance = affects the right, use the law that the COL rule tells you
2. procedure = affects the remedy, use law of forum
3. We have language on that in the Levy case. Pleading, evidence, and practice = procedural. Robbins: but is the court right?
43
Relying on previous precedent that are not COL cases (3 things)
1. "Fallacy of the transplanted category." - Professor Cook
2. McAuliffe, don't use prior, non-COL cases as precedent
3. Levy, use prior precedent, even if not COL case
44
Absent exceptional circumstances exist, the statute of limitations, according to the 1988 amendment to the second restatement.
the forum (1) will apply its own statute of limitations barring the claim; and (2) will apply its own statute of limitations permitting the claim, unless the limitation period of the state whose law will otherwise govern the merits bars the action.
45
Limits on Kilberg, Davenport v. Webb
the court retracted the “procedural” basis of the Kilberg decision, stating that Kilberg “must be held merely to express this State’s strong policy with respect to limitations in wrongful death actions.” The measure of damages is “substantive” in character.
46
If an issue deals with the rules of the forum court,
treat it as procedural.
47
Wording of the statute is "null and void"
substantive
48
Wording of the statute is "action shall not be enforceable"
procedural
49
Substance/Procedures: General rule on statute of limitations
procedural: applies to all cases within a field
50
Substance/Procedures: Specific statute of limitations (term of years attached specifically the the statute that creates the cause of action)
substance
51
Loucks v. Standard Oil
Rule. The forum state’s lack of an analogous cause of action to one arising under the law of a foreign state does not, in itself, signify an offense to the forum’s public policy so as to justify refusing to enforce the foreign cause of action.
52
Chavarria v. Superior Court (punitive damages under another state's law)
Holding. The California Labor Code provision imposing double damages for fraudulent misrepresentations in hiring migrant workers was not penal because it “grants a civil remedy to a private person” rather than “a penalty to the state.”
Rule. Penal laws of one state cannot be enforced in another. A statute is penal under private international law only if its purpose is “not reparation to one aggrieved, but vindication of the public justice.”
53
Enforcing sister states' tax laws
A final exception to the recognition of foreign causes of action is the rule that one state will not enforce the revenue laws of another (losing steam).
In Neely, where an Arkansas court in adding that the rule against enforcing foreign revenue laws “encourages willful, dishonest tax evasion” and “offers a legally respectable asylum to the tax dodger.”
In other states, judicial reluctance to enforce foreign tax and governmental claims has been overcome by legislation.
54
First Restatement § 612 (PP)
“action contrary to public policy: no action can be maintained upon a cause of action created in another state, the enforcement of which is contrary to the strong public policy of the forum.”
55
Penal law
money goes to the state
56
Siegelman v. Cunard White Star Ltd. (contact case) (4 things)
Rule. Contract parties may choose the law that governs the validity of their contract where the chosen law bears some relation to the contract and is selected for bona fide reasons.
Bona fide: no fraud, duress, misrepresentation
Creates the two part test for validity of a contract (interpretation, validity)
NOTE: There can be cases where the interpretation is so key to what the K is about that it goes directly to the validity of the K (as well as to interpretation).
57
In contracts under 2d restatement, matters of interpretation
Any law the parties include, without regard to it's relationship with the agreement.
58
In contracts under 2d restatement, matters of validity
Must apply, unless the chosen law does not bear a SUBSTANTIAL relationship to the contract, or application of the chosen law would contrary to the FUNDAMENTAL policy of a state which has a MATERIALLY GREATER interest than the chosen state AND which would be the law chosen under § 188 IN THE ABSENCE of a effective choice of law.
In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law.
59
First rule of conflicts
sue where you win the most
60
Skinner v. Tober Foreign Motors, Inc. (statutory)
Section 1 (Uniform Commercial Code), provides: When a transaction bears a reasonable relation to this state and also to another state or nation the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties. This applies for transactions in goods, too. So, applied law of forum instead of Connecticut.
61
The starting point for all statute of limitations issues
Does the forum have a borrowing provision? If so, how much the the other jurisdiction's statute of limitations laws should the forum use?
62
What is a borrowing provision?
a statute under which one state may "borrow" a shorter statute of limitations for a cause of action arising in another state. The purpose of borrowing statutes is to prevent plaintiffs from engaging in forum shopping in order to find the longest available statute of limitations.
63
Auten v. Auten (3 interpretations, plus)
Applies to contracts.
Breaks from the traditional rules.
Under the “center of gravity” approach, the court will apply the law of the place having the most interest in the case.
Did not use NY law, because NY as place of contracting was "entirely fortuitous."
Has been interpreted three different ways:
(1) Grouping of contacts,
(2) Center of Gravity,
(3) Most Significant Relationship.
64
Grouping of contacts
look at contacts (facts) and you add them up, and the state in which the majority of contacts is grouped has its law apply. downside-you can total the contacts up in various ways that may not make sense, and not all contacts are made equal
65
Center of Gravity
So, since not all contacts are made equal, list out the contacts (like in 1), and then weigh them. This is more arbitrary than the first one (the first one has less room for policy, but you’re still scaling something on a scale from 0-1, instead of 1-10, which you’d do in 2)
Think of the Center of Gravity needing weight, like gravity causes weight.
66
Most Significant Relationship
most policy oriented (this became the 2d restatement in 1974) this is also just an interest analysis
67
Reese Article
3. He does like a rule based system, but he gave us a non-rule based system
4. Don’t reduce choice of law to rules until you are sure what you want in those rules (Leflar – don’t codify until you know for sure what you want to codify)
6. He said that bad rules are worse than no rules at all.
7. His goal – to give us a vague approach that judges could do whatever they wanted to do in any case
a. He sees it as the virtue of this system
b. Purported virtue of 2nd restatement – flexibility
i. over time, rules will develop from the patterns of values we see emanating from the courts
ii. he said to go with the approach until we are sure what the rules are to look like
68
Babcock v. Jackson
This case expanded the modern approaches to apply to torts.
Rule. Use the rule of the place with the most significant contacts.
69
Robbins's skepticism on Haag
if public policy is all this is really about, why don’t they just cut to the chase and say so. They may as well have just made the following statement: “In a choice of law case brought in a court of the united states, use the law of the state that has the stronger public policy.” If that’s what they’re doing anyway, why not just do it?
70
Currie on fairness of interest analysis
The result, unhappily for the quest for uniformity, will depend upon the forum. That is not a satisfactory result, but the ideal being unattainable, it is the one that makes the best sense; it is better than chasing rainbows.
71
Currian interest analysis, evaluating statutes
Currie assumes that the court should make the determination of applicability by examining the law’s purpose.
72
There are three steps in interest analysis:
1 Isolate the issue
2. Identify the policies/interests/purposes (look at legislative history)
3. Examine your interests/contacts (where are the parties from?)
73
Tooker v. Lopez
Currie's interest analysis for false conflict -- both P and D were from NY, so MI (the place of the injury) "Had no interest," so use the law of NY.
74
Lilienthal v. Kaufman
California law may not be applied if the social and economic interests encompassed by Oregon public policy are so strong that they effectively override the interests of California. .
Rule. Where the interests of two states with conflicting laws are equally important, the court should apply the law that best promotes the policies and interests of the forum state.
Almost a perfect example of Currie's interest analysis. Why *almost* perfect? Because they balanced the interests, when they should have just applied the law of the forum, no balancing.
75
Best rationale for applying law of the forum as the default
Professor Weinberg explains that “forum preference vindicates widely shared policy concerns” because plaintiffs shop for a favorable forum and “what the plaintiff seeks in the general run of cases is precisely the vindication of policies all states share: compensation for injury, deterrence of wrongdoing, and enforcement of agreements.” If the forum believes that the law of a sister state is preferable, “the cleaner, more direct approach would be to make a change in local law.”
76
Lea Brilmayer
Myth of legislative intent
1. he recognized only protective interests
2. We also have:
a. Compensatory interests
b. Punitive interests
c. Deterring interests
d. Regulatory interests
ii. Currie doesn’t recognize all these interests, because if you do, you lost the value of true conflict.
Currie’s system is also a myth: you can’t actually look at legislative intent. Currie is using his own default set of beliefs. Not all legislators have legislative intent. Really, what he’s using is constructive legislative intent. But there’s no a priori way to deduce that intent.
In the end, though, Brilmayer likes Currie. She’s written extensively on how to deduce legislative intent: essentially, if you’re going to have a system based on legislative intent, you need to know the principles by which you establish legislative intent.
77
Apparent Conflict
The second reason was that, according to One 1953 Ford Victoria, the CA legislature didn’t intend the statute to apply to innocent mortgagees. So, essentially, what looks like a true conflict under Curries interest analysis actually was not one. If the statute wasn’t intended to protect the state under these facts.
In an apparent conflict, you are not required to use the law of the forum.
This is just an example of a situation in which a court through statutory construction took what appeared to be a true conflict and read the conflict out of existence by reconstruing the foreign jurisdiction’s law.
An apparent conflict is a conflict which at first glance looks like a true conflict, but after the forum construes its statute to not apply to this situation, it turns into an apparent conflict. This case is an example of this type of apparent conflict.
Currie says that kind of weighing is ok. He doesn’t like general weighing, but he likes weighing based in statutory construction. What’s the difference? If a court weighs by statutory construction and concludes that the statute wasn’t meant to reach this situation, that’s like an invitation to the legislature to say the court was wrong about how the court interpreted the statute.
You MUST have a statute for there to be an apparent conflict
78
The Case of the Disinterested Forum
A: (Forum)
B: P protecting, P is domiciliary
C: D protecting, D is domiciliary
79
Currie's solution for the Case of the Disinterested Forum
Dismiss as forum non convenience
If you can't, use the law of the forum.
80
The "unprovided for" case
A: Forum, D protecting, P is domiciliary
B: P protecting, D is domiciliary
81
Currie's solution for the "unprovided for" case
To defer to the jurisdiction that allows recovery may violate the Constitution (privilege and immunities clause). Therefore, regarding the unprovided for case, just use the law of the forum.
82
§ 6 (7 things)
(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
(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 relative 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, and
(g) ease in the determination and application of the law to be applied.
****This DOESN’T give you certainty, predictability, uniformity, UNLESS the jurisdiction ALWAYS uses the general interest or specific carved out exception (Wood Bros.).
83
In a contracts case, § 188 says when you’re doing a § 6 contracts analysis along with the policies, consider these facts/contacts (5 things)
(1) the place of contracting
(2) the place of negotiation
(3) the place of performance
(4) the place of the subject matter
(5) the parties’ domicile
84
Under § 187, how can you tell if another state has a MATERIALLY GREATER interest?
Look at § 6
85
§ 196
in a contract for the rendition of services, use the law of the place where the services are to be rendered, unless § 6 says there is another jurisdiction with a more significant relationship.
86
Wood Bros. § 6 analysis
Use the law that's more specific; the place with the most specific relationship is the place with the strongly held, carved out exception.
Note as well however, that some courts would do exactly the opposite: because both states have a general policy of enforcing contracts, may as well enforce this one.
87
Various ways to do a § 6 analysis
Use the law of the strongly carved out exception (Wood Bros.), use the law of the common general interest, full § 6 analysis paragraph by paragraph for each of § 6’s subsections, other will count contacts (Auten), others will do a Currian interest analysis, and others (Johnson v. Spider) broadens currie’s analysis and applies it here. What do we get from the § 6 analysis? Anything goes. And that was intentional. One of the comments to the restatement was that they wanted to allow the courts to use their own judgment.
88
Westbrook Article
We are meant to experiment within constitutional parameters.
Of the existing approached, which one does he like the most? A way to eliminate COL problems is to eliminate choice (enact national laws). Take away the states’ ability to experiment. But short of that, the best example of a COL solution we now have is the second restatement. He really likes the idea of hybrids.
89
The Better Law
Created by Leflar, "If this tentative summarization is reasonably complete, it can serve as a guide in the actual determination of choice-of-law questions. By using it, courts can replace with statements of real reasons the mechanical rules and circuitously devised approaches that have appeared in the language of conflict opinions, too often as cover-ups for the real reason that underlay the decisions."
90
Professor Reese
"Perfection is not for this world."
91
Neumeier v. Kuehner
Judge Fuld says, well, we've had 9 years of guest statute cases, so now we can distill some rules. Here they are!
92
Using Depacage
ALL MODERN APPROACHES ALLOW FOR THE USE OF DEPECAGE (interest analysis, second restatement, etc.)
The First Restatement, with only one exception, does not allow depecage. The one exception is substance v. procedure.
93
Functional Analysis
Use Currie to weed out false conflicts. Then for the rest weigh the interest and then use the law of the jurisdiction that has the greater interests. So, how do they do that? Look to the excepts in the Supplement. (see 319 of the supplement)
Basically, if you want to understand the reach of a given law in the case, look to the other jurisdictions COL cases and figure out if they would even use their own law. They’re basically saying do a renvoi analysis. Under functional analysis always use the renvoi. [my thoughts: isn’t this just basically a more in depth Currian false conflicts analysis? They’re saying well if the other state wouldn’t even use their own law, why should we?]
94
Allstate Ins. Co. v. Hague
To determine whether a choice-of-law determination is constitutional, whether under the Due Process Clause or Full Faith and Credit Clause, the Court looks to the sufficiency of contacts between the state whose law is chosen, on the one hand, and the litigants and underlying events, on the other. Significant contact, or contacts in the aggregate, gives rise to sufficient state interests so as not to impose laws that are arbitrary or fundamentally unfair.
Rule. Where a forum state has, in aggregate, significant contacts with the litigants and the underlying events, it may apply its own law without violating the Due Process or Full Faith and Credit Clause.
The due process cases establish that a state must have contacts such that the defendant is not unfairly surprised by the application of its law.
95
The test for whether it is constitutional to use the law of a particular jurisdiction
is to ask whether there are sufficient minimum contacts within that jurisdiction. That’s the constitutional test for choice of law. (Basically International Shoe, but note, FN23 says language is the same, but they won't say whether it *is* the same).
o Traditional notions of fair play and substantial justice
o For personal jurisdiction, do we have sufficient contacts to make it fair to accept jurisdiction in this case?
96
"Validly rendered"
With jurisdiction. You have to investigate all types of jurisdiction: in rem, in personam, personal, proper notice: “traditional notions of fair-play and substantial justice. (reasonableness of notice)” (international shoe)
97
"Final Judgment"
A judgment is not final if the time to appeal that judgment is not final. It is not final if it is subject to a condition yet to be performed. It is not final if it is uncertain in amount. For example, the jury comes back and says defendant is liable. It’s properly rendered (assuming jurisdiction), but it’s not final until the jury comes back with the second part of the judgment (the damage judgment). Finally, a judgment is not final if it is subject to modification.
Child support awards are never final, because they are always subject to modification. Must it be enforced in another jurisdiction? No. Can it? Yes.
98
FF&C foreign judgments
Full Faith and Credit says nothing about it. There could be legislation, however.
99
Error in FF&C
If the first court had the requisite jurisdiction, then any error of fact or law in the determination of the merits is not a ground for refusing to recognize the judgment. Error is irrelevant.
100
So what happens if J3 discovers the first final judgment. Which judgment gets recognized?
Treinies v. Sunshine Mining Co., the Court held that the second case should be enforced. in the case of inconsistent, validly-rendered final judgments the second in time gets deference.
101
Cases dismissed under Statute of Limitations according to FF&C
Forum 1 dismisses action based on that forum’s statute of limitations. Does Forum 2 have to recognize that judgment? No, it wasn’t a judgment on the merits. So if F2s statute of limitations hasn’t run, then they can litigate.
102
FF&C In re Berry's Estate
A foreign judgment cannot directly affect title to land in another state. The only court that has the power to order the party to change the title to land is the court in the jurisdiction in which the land sits.
103
Wrongful death under 1st Restatement
Use the place of the injury, not where the death occurred.
104
Capacity of a party, Traditional rules
governed by the law of the domicile of the party whose status or capacity is in question.
105
Real (immovable) Property, First Restatement
Use the law of the Situs
106
Capacity of the testor, first restatement, real property
Law of the situs
107
Distribution of an estate, plus exception
law of the state of domicile at the time of death
EXCEPTION: Real property – if there is real property in the estate, the law of the situs of the property governs, but for everything else in the estate, the law of the domicile governs
108
Traditional rules, wife's domicile
when a husband’s domicile changed, the wife’s changed at that time as well
109
Child’s domicile
follows the domicile of the father (traditional rule), unless illegitimate child, in which case it follows the mother’s domicile
110
Marital domicile
Use the law of the place where marriage was celebrated
111
For interspousal immunity cases
(see Haumschild), use the law of the marital domicile
112
Traditional Rules / First Restatement on Depeçage
didn’t recognize Depeçage – the court must choose the one that overrides the other, and must only use one jurisdiction
113
Who does the characterizing?
The forum
114
Statement of the PP exception
Cardozo in Loucks: “violate[s]. . . some deep-rooted tradition of the common weal.”
115
If a judge sees that, in a given case, public policy doctrine substitutes for choice of law, he should ask the following
- What are the most important contacts with respect to the matter at hand?
o Second restatement is called the most significant relationship test
- Will any other place apply that particular foreign law, or is the result obtainable only in this forum?
o Forum non-conveniens – see Chavarria v. Superior Court
o So you can kick the case out
- Should a broadly stated choice of law rule supposedly applicable to the case at hand be narrowed to take into account the significance of differences in detail?
116
What system do the federal courts use when sitting in diversity?
Klaxon Co. v. Stentor Elec. Mfg. Co. (SC, 1941) said that “in a federal diversity case, the forum court uses the COL rule of the state in which it sits.”
117
Choice of law provision assumption
internal/local law of the jurisdiction cited.
118
How to make a choice of law provision
some states allow implicit, others require provision be explicit.
119
3 parts of a statute of limitations
term of years
borrowing provision
tolling provision
120
When do we use a borrowing statute?
When the other jurisdiction has all three elements (borrowing, tolling, term of years), too.
121
True Conflict
A: P is domiciliary, P protecting
B: D is domiciliary, D protecting
122
Johnson v. Spider Staging Corp. (WA 1976)
This is more if Brilmeyer's kind of case. This is the unprovided for case. It doesn't use the "Carved out exception" like Wood Bros. Instead, they looked at the purposes of the relevant rules, deciding that WA law was trying to deter – WA has def. deterring interest; the jurisdiction in which the interest can actually be achieved should win.
123
Weintraub's Functional Analysis
The suppression of “anachronistic” laws, a factor similar to the von Mehren and Trautman emphasis on whether a particular law represents an “emerging” or a “regressing” policy (Weintraub expressly condemns the use of this factor as a means of avoiding a poor local law rule when no true conflict exists – in such cases, he says, “the only intellectually honest solution is a direct changing of the poor local rules” (looks like Leflar's better rule of law)
124
Functional Analysis Von Mehren and Traurman
You should use the renvoi in every case.
125
Different COL approaches (6)
1. Currie's Interest Analysis
2. Traditional Theory
3. Traditional Practice/1st Restatement
4. Governmental Interest Analysis
5. 2d Restatement
6. Leflar's Better Law
126
§ 145 (Second Restatement)
The General Principle in Tort Cases
1. 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.
2. Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
a. The place where the injury occurred
b. The place where the conduct causing the injury occurred
c. The domicile, residence, nationality, place of incorporation and place of business of the parties, and
d. The place where the relationship, if any, between the parties is center.
3. These contacts are to be evaluated according to their relative importance re: the particular issues
127
§ 188 (Second Restatement)
Law Governing Contract Issues in Absence of an Effective COL by Parties
(1) The rights and duties of the parties w/ respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6.
(2) In the absence of an effective choice of law by the parties (see s 187), the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
a. the place of contracting,
b. the place of negotiation of the contract,
c. the place of performance,
d. the location of the subject matter of the contract, and
e. the domicile, residence, nationality, place of incorporation and place of business of the parties.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.
(3) If the place of negotiating the contract and the place of performance are in the same state, local law of that state will usually be applied, except as otherwise provided in §§ 189–99 and 203.
128
§ 187 (Second Restatement)
Law of the State Chosen by the Parties
1. The law of the state chosen by the parties will govern unless: (a) the chosen state has no substantial relationship to the parties or the transaction
2. application of the law of the chosen state would be contrary to the fundamental policy of a state which has a materially greater interest than the chosen state.
3. If the parties have not chosen a law, look to § 188
129
§ 146 (Second Restatement)
§ 146 tells us in an action for tort, use the local law of the place of the injury unless through a § 6 analysis, another jurisdiction is more concerned. Note: first restatement says place of the wrong, which is more ambiguous than the 2 (place of the injury).
130
§ 175–76 (Second Restatement)
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Wrongful Death (175)
1. Use place of the injury, unless another jurisdiction has a greater interest under § 6.
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Defenses to a Wrongful Death Claim (176)
131
§ 186 (Second Restatement)
Issues in contract are determined by the law chosen by the parties in accordance with the rule of § 187 (party autonomy) and otherwise by the law selected in accordance with the rule of § 187.
