Choice of Law Doctrine for Specific Areas of Substantive Law

Question 1

Torts

Answer 1

Laws Regulating Conduct = ALWAYS apply the law of the place of the WRONG

Laws allocating loss = Apply the appropriate choice of law approach

• Vicarious liability
• SL vs. Negligence
• Damage Limitations (sometimes remedy viewed as procedural so do law of the forum)

Question 2

Contracts

Answer 2

Issues the Parties COULD HAVE resolved by explicit contractual = ALWAYS ENFORCEABLE

Issues the Parties COULD NOT have resolved by explicit contractual provision = Still ENFORCEABLE UNLESS:

• Chosen state has no relationship
• Chosen law is contrary to fundamental public policy

ABSENT a Valid Choice of Law Clause:

• issues relating to K’s existence or validity = Apply the law of the place WHERE the K was made
• issues relating to performance = Apply the law of the PLACE of PERFORMANCE
• K affecting title to land = Apply law of the state where the LAND is LOCATED

IF answer is ambiguous, apply default rule = Place (state) where K was entered or performed

Question 3

Procedure

Answer 3

Vested Rights = Forum applies its OWN laws on matters of procedure

2nd Restatement & Interest Analysis = Analyze policies & interests & ID the state having most significant relationship to the issue

STATUTE OF LIMITATIONS:

• Borrowing statutes = Generally provide that the shorter of 2 potentially applicable SOL apply
• When borrowing statute does NOT apply =
  
  • Vested Rights Rule = Forum
  • Interest Analysis & 2nd Restatement = Forum state will have for 2nd

Question 4

Real Property

Answer 4

Where land is located generally unless policies of conflicting laws (for non-vested ones)

Question 5

Conveyance of PERSONAL Property

Answer 5

Vested Rights = Where the property is situated at time of pertinent transaction

Usually governed by UCC

Question 6

Decedents’ Estates

Answer 6

Real Property = Vested Rights & others likely where land is located

Personal Property = Decedent domiciled

Question 7

Corporations

Answer 7

Internal Affairs Doctrine = State of Inc.

External Relationships = Corp. relationship w/3rd parties are governed by general choice-of-law rules

Question 8

Marriages

Answer 8

Valid where it is celebrated is valid everywhere

Question 9

Public Policy

Answer 9

Fundamental Public Policy