Conflicts Flashcards
Alabama Great Southern RR v. Carroll
Traditional Rules
The law of the state where an employee is injured determines whether the employee may recover against the employer.
Traditional Rules, Tort
“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
Exception to Traditional Rule, Tort
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.”
Milliken v. Pratt
A contract validly made in the place of contract will be enforceable everywhere, regardless of the law of domicile (for capacity purposes).
Traditional Rules, Contract
Use the law of the place of contracting.
Cavers’s quote
There can be no true Justice without uniformity.”
What we want from COL rules (6 things)
- Certainty
- Predictability
- Uniformity
- Ease of Application
- Avoidance of Forum Shopping
- Good, fair, just, equitable results
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.
The Restatement says that it is where the victim fell ill. That is the place of the wrong.
Determination of the place of contracting
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
Determination of the place of contracting, e.g.
Where acceptance is authorized to be sent by mail, the place of contracting is where the acceptance is mailed
Bilateral contract
Promise for a promise;
made at the place of the second promise
Unilateral contract
promise in exchange for performance
made
the K is formed where it is performed (place of performance)
Immovables
use the law of the situs
Succession in movables
law of the decedents domicile
COL case process under traditional rules (7 steps)
- facts/issues
- characterization of the case
- COL rule (according to forum)
- COL application
- Substantive rules
- Substantive application
- Conclusion
how to characterize covenants that run with the land
real property
how to characterize covenants that DO NOT run with the land
contract
how to characterize covenants that you can’t tell whether they run with the land or not
property
Change in domicile
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
How does this work when there is real property in your estate in one jurisdiction, but you’re domiciled in another jurisdiction?
The real property goes according to the situs of the land, while the movable property is distributed according to your domicile.
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?
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.
Exception to the one domicile rule
inheritance taxes; Dorrence
Quote from Dorrence on changing domicile
“A person’s expressions of desire cannot supersede the effect of his conduct.”
Cavers’s 1933 Article (3 things)
(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.
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.
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
if a jurisdiction follows the foreign choice of law rule
it is said to “accept” the renvoi
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.”
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”
If the foreign choice of law rule is found to refer to the whole law of the state
Total renvoi
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.
Forgo’s Case
End the total renvoi by accepting the reference back to the forum’s law.
Why do courts use renvoi
to get back to the forum
traditional practice
traditional rules, plus escape devices
Cutts v. Najdrowski (gifts of money)
A gift of money is governed by the law of the place where the gift is made.
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.
Grant v. McAuliffe (4 things)
- Prior precedent is not binding if it wasn’t a COL case.
- survival statutes are procedural for conflict of laws purposes.
- They ruled this way, even tho the Restatement said otherwise–basically, the Restatement is not law.
- Impetus for Currie’s interest analysis
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
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.
Goal reasons
look forward – promote desired social goals
look to support decisions on the grounds that the decision will create precedent
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
substance v. procedure (3 things) (Levy examples)
- substance = affects the right, use the law that the COL rule tells you
- procedure = affects the remedy, use law of forum
- We have language on that in the Levy case. Pleading, evidence, and practice = procedural. Robbins: but is the court right?
Relying on previous precedent that are not COL cases (3 things)
- “Fallacy of the transplanted category.” - Professor Cook
- McAuliffe, don’t use prior, non-COL cases as precedent
- Levy, use prior precedent, even if not COL case
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.
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.
If an issue deals with the rules of the forum court,
treat it as procedural.
Wording of the statute is “null and void”
substantive
Wording of the statute is “action shall not be enforceable”
procedural
Substance/Procedures: General rule on statute of limitations
procedural: applies to all cases within a field
Substance/Procedures: Specific statute of limitations (term of years attached specifically the the statute that creates the cause of action)
substance
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.
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.”
