Approaches to choice of law Flashcards
Traditional approach
Under the traditional approach—the First Restatement approach—each state determines the legal effect of events that occur within its territory.
As soon as a legally significant event occurs, a legal right becomes vested under the laws of the state where it occurred—i.e., a court need only determine where the legal right vested and then apply the law of that place.
Traditional approach: last act
A right vests when the last act takes place that is necessary to give the plaintiff a cause of action.
Governmental interest analysis
A law applies to a set of facts if its application to those facts would promote the underlying purposes of the law.
If the law of a state applies, the state is said to be “interested” in the case.
Governmental interest analysis: false conflict
If only one state is truly interested, there is a false conflict.
Courts should then apply the law of the interested state.
Governmental interest analysis: true conflict
If more than one state is interested, there is a true conflict, and the court should apply the law of the forum state.
A court is not supposed to balance the interests of different states under the governmental interest approach.
Governmental interest analysis: unprovided-for case
If neither state is interested, a court should apply the law of the forum state.
Governmental interest analysis: conduct-regulating laws
States have an interest in applying a conduct-regulating law when:
(1) The wrongful conduct occurs within the territory of the state; or
(2) A state domiciliary is injured, regardless of where.
Governmental interest analysis: loss-shifting laws
Loss-shifting laws determine who can or cannot be liable—e.g., immunity and vicarious liability doctrines.
States have an interest in applying a loss-shifting law when doing so would benefit a state domiciliary.
Most significant relationship
Under the Second Restatement approach, a court applies the law of the state with the most significant relationship to the particular issue in question.
The seven-factor analysis can be distilled into three main considerations:
(1) Promoting the relevant policies of the forum and other interested states;
(2) Advancing systemic interests: certainty, uniformity, predictability, and simplicity; and
(3) Protecting the justified expectations of the parties in planned transactions, e.g., contracts, trusts, and real property.
Most significant relationship: substantive law
For each type of issue, there is a list of contacts that courts are to consider in applying the general guiding principles.
In addition, there are presumptions based on the type of issue.
Most significant relationship: tie breaker
If no state has a more significant relationship, courts will apply forum law as a tiebreaker.
Depeçage
Depeçage is the application of different states’ laws to different issues within the same case.
Renvoi
Renvoi is application of the whole law of another state, including the other state’s choice-of-law rules.
Applying the other state’s choice-of-law rules is called “accepting the renvoi”; the reverse is called “rejecting the renvoi.”
Renvoi: property rights in land
Generally, all three approaches to choice-of-law reject the renvoi—except for issues involving property rights in land, where courts generally accept the renvoi.
