Choice of Law Doctrine for Specific Areas of Substantive Law

Question 1

Torts

Answer 1

1) Vested Rights Approach (1st RS): law of the place of wrong
2) Interest Analysis (2nd RS): Identify the state having the most significant relationship to the case by analyzing the applicable policies and state interests. Absent a false conflict, default to the place of the wrong

Question 2

Torts: laws regulating conduct

Answer 2

Example: speed limits - always apply the law of the place of the wrong

Question 3

Torts: laws allocating loss

Answer 3

Examples: vicarious liability, strict liability, negligence, damage limitations). Apply the appropriate choice of law approach

Question 4

Contracts

Answer 4

First, apply contractual choice of law provision, if there are any. If that doesn’t resolve the dispute, look to choice of law.

Question 5

Contract Choice of Law Provisions

Answer 5

1) Issues that parties could have resolved by explicit contractual provision (gap fillers, terms that deal with construction, interpretation, etc.) –> choice of law provision is ALWAYS enforceable
2) Issues that parties could not have resolved by explicit contractual provision (issues of validity, capacity, and other matters beyond the parties’ freedom to k) –> choice of law provision still enforceable UNLESS either:
a) the chosen state has no relationship to the parties or the transaction; or
b) the chosen law is contrary to the fundamental public policy of the forum state.

Question 6

Choice of Contract Law (absent a valid choice of law clause): Vested Rights Approach

Answer 6

1) Issues relating to a contract’s existence or validity: apply the law of the place where the K was made. This is usually the place where the last event occurred that made the contract binding (where offer was irretrievable accepted)
2) Issues relating to performance: apply the law of the place of performance (time, place, manner of performance and excuses for nonperformance)
3) Contracts affecting title to land: apply the law of the state where the land is located

Question 7

Choice of Contract Law (absent a valid choice of law clause): Most Significant Relationship Test

Answer 7

Identify the state with the most significant relationship to the issue by:

1) identifying states having relevant contacts (place of contracting, negotiation, and performance; location of the subject of the contract; and parties’ home states)
2) Analyze the applicable policies and state interests;
3) Analyze other relevant 2nd RS factors
4) If answer is ambiguous, apply the default rule: the place where the contract was entered or performed

Question 8

Procedural Matters

Answer 8

Traditionally regarded as procedural and thus governed by the law of the forum: civil practice rules, burdens of proof, and direct action statutes

Question 9

Substantive Matters

Answer 9

Traditionally regarded as substantive and thus governed by the law that governs the validity of the contract: statues of fraud and the parole evidence rule

Question 10

Procedure Choice of Law

Answer 10

1) Vested rights: forum applies its own laws on matters of procedure
2) Second RS and Interest Analysis: Analyze policies and interests and identify the state having most significant relationship to the issue

Question 11

Borrowing Statutes

Answer 11

Provide that the shorter of two potentially applicable statues of limitation apply

Question 12

Choosing the Applicable Statute of Limitation when the Borrowing Statute does not apply

Answer 12

1) Vested rights: SOL are matters of procedure so the forum always applies its own statue of limitation
2) Interest analysis: look at policies behind statutes
3) Second Restatement: First, use interest analysis. BUT, forum state will generally have a greater interest and a significant relationship especially if the forum state has a shorter SOL statute.

Question 13

Real Property Choice of Law

Answer 13

1) Vested Rights Rule: apply the law of the place where the land is located (law of situs)
2) Second RS and Interest Analysis: Look at the policies of the conflicting laws but the result will almost always lead back to the law of the situs because place of land almost always has the greatest interest

Question 14

Conveyance of Personal Property Choice of Law

Answer 14

1) Vested: apply the law of the place where the property is situated at the time of the pertinent transaction
2) Second Restatement and Interest Analysis: Look at the policies of the conflicting laws; situs usually prevails (usually governed by the UCC)

Question 15

Decedents’ Estates Choice of Law (Real Prop)

Answer 15

1) Vested: apply the law of the place where the land is located whether devolution of the prop is by will or intestate succession
2) Second RS and Interest Analysis: Prob gets to the same result with different analysis (policies of the conflicting laws)

Question 16

Decedents’ Estates Choice of Law (Personal Prop)

Answer 16

1) Vested; apply the law of the decedent’s domicile at the time of death, whether she dies intestate or with a will
2) Second RS and Interest Analysis: look at the policies of the conflicting laws

Question 17

Corporations Choice of Law (Internal Affairs)

Answer 17

1) Vested: Apply the law of the state of incorporation to issues relating to the corp’s creation, its dissolution, its internal affairs, and the liability of its officers and directors to SHs
2) Second RS and Interest Analysis: yields the same result

Question 18

Corporations Choice of Law (External Relationships)

Answer 18

A corp’s relationship with third parties are governed by general choice of law rules (tort, contract, etc)

Question 19

Marriages

Answer 19

1) General Rule: a marriage that is valid where it is celebrated (created) is valid everywhere.
2) Public Policy Exception: If a marriage violates a prohibitory rule of a state then it may not be recognized even though it is valid where performed

Question 20

Principles that may preclude application of foreign law:

Answer 20

1) public policy: a court may decline application of another state’s law if it violates the forum state’s fundamental public policy (does not kick in if the law is just different)
2) Penal (laws that only have the goal to punish a party) and tax laws
a. Vested: A state will not enforce another state’s penal or tax laws
b. 2nd RS: allows enforcement BUT most states will still refuse to do so.