4 - choice of law for specific areas of substantive law

Question 1

CoL doctrine for specific areas of substantive law

Answer 1

Tort, K, procedure, real property, personal property, decedents’ estates, corporations, marriages, principles that may preclude application of foreign law

Question 2

CoL doctrine for specific areas of substantive law

Tort

Answer 2

VR: Law of the place of the wrong
IA and MSR: Analyze policies & interests; absent a false conflict, default to the place of the wrong
(JE and C/P/U probably won’t apply)

Question 3

CoL doctrine for specific areas of substantive law

Tort - laws regulating conduct

Answer 3

Always apply the law of the place of the wrong (speed limit)

Works out to place of the wrong under all 3 theories

Question 4

CoL doctrine for specific areas of substantive law

Tort - laws allocating loss

Answer 4

Apply the appropriate CoL

usually different result under the 3 different theories

Question 5

CoL doctrine for specific areas of substantive law

K

Answer 5

1. Is there a CoL provision in the K?

2. If so, is it valid?

Question 6

CoL doctrine for specific areas of substantive law

K - CoL provision

Answer 6

If the parties had full freedom of K and could have resolved the issue w/explicit K provision, then the CoL provision is ALWAYS ENFORCEABLE.
If the parties could not have resolved the issue w/explicit K provision (issues of validity, capacity, matters beyond freedom of K), then the CoL is still ENFORCEABLE UNLESS either:
1. The chosen state has NO RELATION to the parties of the transaction OR
2. The chosen law is CONTRARY TO FUNDAMENTAL POLICY of the forum state (or a state that has a greater interest in the issue)

Question 7

CoL doctrine for specific areas of substantive law

K - No valid CoL provision

Answer 7

VR: Varies according to circumstance with specific rules relating to the issue
MSR:
1. Identify states having relevant contacts (place of contracting, negotiation, & performance; location of subject of the K, parties’ home states)
2. Analyze applicable policies & interests (IA)
3. Analyze JE and C/P/U (may be more important in K)
4. If answer is ambiguous, apply default rule: The state where K was entered or performed.
If the state of negotiation and performance are the same, default to the laws of that state.

Question 8

CoL doctrine for specific areas of substantive law
K - No valid CoL provision
VR

Answer 8

1. Issues relating to a K’s existence or validity: Apply the law of the place where the K was made
2. Issues relating to performance: Apply the law of the place of performance
3. Ks affecting title to land: Apply the law of the state where the land is located

Question 9

CoL doctrine for specific areas of substantive law
K - No valid CoL provision
VR - issues relating to a K’s existence or validity

Answer 9

Apply the law of the place where the K was made.
A K is deemed to be made where the last act or event occurred that made the K binding.
A K usually becomes binding where the offer was irretrievably accepted
- verbal acceptance: where acceptance was uttered
- mailed acceptance: where acceptance was mailed
- acceptance sent by one’s own agent: where acceptance is delivered

Question 10

CoL doctrine for specific areas of substantive law

procedure

Answer 10

General rule

Statute of Limitations

Question 11

CoL doctrine for specific areas of substantive law

procedure - general rule

Answer 11

VR: Forum applies its own laws on matters of procedure
Procedural - civil practice rules, burdens of proof, direct action statutes, statute of limitations
Substantive - SoF, parol evidence rule
IA & MSR: Analyze policy & interests, identify the state having MSR to the issue
(note: forum usually has an overriding interest to apply its own law on pure issues of procedure, e.g. efficiency)

Question 12

CoL doctrine for specific areas of substantive law

procedure - statute of limitations

Answer 12

1. Borrowing statutes - Most states have borrowing statutes which generally provide that the shorter of two potentially applicable SoL apply.
   (Probably not in facts, but state it and then go on)
2. When borrowing statute does not apply:
   VR: SoL are matters of procedure, so the forum always applies
   IA: Analyze policy & interests, weight given to forum state b/c of forum state’s interest
   MSR: IA, plus JE and C/P/U

Question 13

CoL doctrine for specific areas of substantive law

real property

Answer 13

VR: Apply the law of the place where the land is located (law of the situs)
IA: Analyze policy & interests, state has MASSIVE interests in what happens w/the land
MSR: IA plus JE and C/P/U

Question 14

CoL doctrine for specific areas of substantive law
personal property (not death/divorce)

Answer 14

VR: Apply the law of the place where the property is situated at the time of the pertinent transaction (law of the situs)
IA: Analyze policy & interests
MSR: IA plus JE and C/P/U
IA & MSR likely come back to where property is located
Note: UCC usually governs

Question 15

CoL doctrine for specific areas of substantive law

decedent estates - real property

Answer 15

VR: Apply the law of the place where the land is located (law of the situs), whether devolution of property is by will or intestacy
IA: Analyze policy & interests, state has MASSIVE interests in what happens w/the land
MSR: IA plus JE and C/P/U

Question 16

CoL doctrine for specific areas of substantive law

decedent estates - personal property

Answer 16

VR: Apply the law of the state of decedent’s domicile AT THE TIME OF DEATH, whether died with a will or intestate
IA: Analyze policy & interests, state has paramount interest in what happens to her citizens
MSR: IA plus JE and C/P/U

Question 17

CoL doctrine for specific areas of substantive law

corporation - internal affairs

Answer 17

VR: Apply the law of the state of incorporation to issues RELATING TO corporation’s creation, dissolution, internal affairs, and liability of its officers and directors to shareholders
IA: Analyze policy & interests, state of incorporation has paramount interest because the corporation is a creation of that state (probably leads back to VR result)
MSR: IA plus JE and C/P/U

Question 18

CoL doctrine for specific areas of substantive law

corporation - external relationships

Answer 18

A corporation’s relationships w/third parties are governed by general CoL rules

Question 19

CoL doctrine for specific areas of substantive law

marriages

Answer 19

general rule: A marriage that is valid where it is celebrated is valid everywhere.
public policy exception: If a marriage would violate a prohibitory rule of a state, then it may not be recognized even though it is valid where performed.

Question 20

CoL doctrine for specific areas of substantive law

principles that may preclude application of foreign law

Answer 20

Public policy: A court may decline application of another state’s law if it violates the forum state’s fundamental public policy. (Violates some fundamental principle of justice, some prevalent conception of good morals, or some deeply rooted tradition.)
penal and tax laws: VR: States will not recognize or enforce penal or tax laws of another state
IA & MSR: Would allow but most states still refuse