Tues. Mar. 1

“unprovided-for” cases

Grant variation Arizonan and Californian get in accident in Arizona Californian dies Arizonan sues Californian’s estate AZ has no survivorship of actions Cal does

Ontario guest riding in NYer’s car accident in Ontario Ontario has guest statute NY doesn’t

Currie: Use forum law Use law that is most humane and enlightened

Kramer’s solution - affirmative defense of P’s domicile does not apply - but cause of action for relief of P’s domicile does apply

Grant variation Arizonan and Californian get in accident in Arizona Californian dies Arizonan sues Californian’s estate AZ has no survivorship of actions Cal does Kramer: AZ negligence law applies

Ontario guest riding in NYer’s car accident in Ontario Ontario has guest statute NY doesn’t Kramer: Ontario negligence law applies

What if P’s domicile’s law prohibits P’s action, not through an affirmative defense, but because it recognizes no cause of action?

Erwin v. Thomas (Or. 1973) - P (Wash) suing D (Ore) in Ore Ct for injury in Wash - Suit is for loss of consortium - Wash does not allow such suits by women (only men) - Ore does Kramer: Wash law applies to deny P a claim

Variation on Hurtado (Cal. 1974) - Ps from Mexican state of Zacatecas sue Californian for wrongful death due to an accident in Zacatecas - Zacatecan law had a limit on the amount of damages for wrongful death (part of the cause of action, not an affirmative defense) - California law had no such limit - Kramer solution: Zacatecan law applies to deny Zacatecan P a claim above limit? - Green: why doesn’t California law also apply to submit California D to full liability?

Grant variation Arizonan and Californian get in accident in Arizona Californian dies Arizonan sues Californian’s estate AZ has no survivorship of actions Cal does Kramer: AZ negligence law applies Green: If loss allocating rules can burden as well as benefit domiciliaries, why doesn’t AZ’s abatement rule burden AZ P? Why doesn’t CA survivorship rule burden CA beneficiaries?

Set aside the no-cause of action unprovided for cases (like the Hurtado variation and Erwin)

Problems with Kramer’s solution to the Grant variation and Neumeier

Biggest problem: background laws

Grant variation Arizonan and Californian get in accident in Arizona Californian dies Arizonan sues Californian’s estate AZ has no survivorship of actions Cal does Kramer: inapplicability of AZ affirmative defense means that AZ cause of action applies Green: inapplicability of CA negligence action means that CA no-liability background law applies

Result: AZ interest in compensation to Arizonan favors rule of liability CA interest in protecting beneficiaries of CA estate favors no-liability rule

Unprovided for cases show that interests standing against laws count too AZ has compensatory interest standing against its abatement rule CA has interest in protecting beneficiaries of estate that stand against its survivorship rule

Ontario guest riding in NYer’s car accident in Ontario Ontario has guest statute NY doesn’t Kramer: Ontario negligence law applies Green: Ontario has an interest in a rule of negligence liability (deterrence and compensation) – BUT NY has an interest in a rule of host immunity (protection against fraud)

Babcock NY guest riding in NY host’s car accident in Ontario Ontario has guest statute NY doesn’t Ontario interest? – deterrence (liability) NY interests? – compensation (liability) and avoiding fraud (immunity)

Ontario interests in all-Ontario case: Comp. Ont (3) + Deter. Ont (1) Fraud NY (5) Babcock? NY guest, NY host, Ont accident Comp. NY (3) + Deter. Ont (1) < Fraud NY (5)

1 st Rest. does a better job satisfying state interests than interest analysis does!

true conflicts

Lilienthal v Kaufman (Ore. 1964) - D (Ore) went to Cal and entered into an agreement w/ P (Cal) for joint venture - D executed in Cal two promissory notes - P demanded payment on notes - D declared spendthrift under Ore law - No such law in Cal

Concurrence To distinguish the Olshen case it would be necessary to assume that although the legislature intended to protect the interest of the spendthrift, his family and the county when local creditors were harmed, the same protection was not intended where the transaction adversely affected foreign creditors. I see no basis for making that assumption. There is no reason to believe that our legislature intended to protect California creditors to a greater extent than our own.

true conflict – - cumulative voting is required under CA law - absence of cumulative voting is permitted under Del law real true conflict - - cumulative voting is required under CA law - cumulative voting is forbidden under Del law

forum shopping

Bernkrant v Fowler (Cal. 1961)

1 st Restatement…?

moderate and restrained interpretation

People v One 1953 Ford Victoria automobile mortgaged in TX moved to Cal by mortgagor seized in connection with drug trafficking mortgagee’s interest forfeit under Cal law Should Cal or Tex law by applied by a Cal court?

Bernhard v Harrah’s Club (Cal. 1976)

1 st Restatement…?

comparative impairment