Conflict of Laws Michael Green 221-7746 Office: 260 office hours: MW 11:30-12:45 or by appt.

Personal jurisdiction Choice of law Recognition of foreign judgments Constitutional Sub-constitutional

choice of law

What are you doing when you do choice of law?

It’s statutory interpretation

It’s international law

It’s procedure

Maybe it’s just normal lawmaking

The Traditional Approach

territorialism

comity

vested rights theory

legal realism

Holmes: If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.... Take the fundamental question, What constitutes the law? ... [I]f we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.

Alabama Great Southern RR Co v Carroll (Ala. 1892)

§ 386. Liability To Servant For Tort Of Fellow Servant The law of the place of wrong determines whether a master is liable in tort to a servant for a wrong caused by a fellow servant. § 377. The Place Of Wrong The place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place.

lex loci delicti

Why the place of the harm?

“Up to the time this train passed out of Alabama no injury had resulted. For all that occurred in Alabama, therefore, no cause of action whatever arose. The fact which created the right to sue, the injury, without which confessedly no action would lie anywhere, transpired in the state of Mississippi. It was in that state, therefore, necessarily that the cause of action, if any, arose; and whether a cause of action arose and existed at all, or not, must in all reason be determined by the law which obtained at the time and place when and where the fact which is relied on to justify a recovery transpired.”

interest analysis…

playing with the lex loci delicti rule…

What if Carroll had fallen in Miss, felt OK, walked to La and there had his harm manifest itself?

§ 377. The Place Of Wrong Rule 1 § 377. The Place Of Wrong Rule 1. [W]hen a person sustains bodily harm, the place of wrong is the place where the harmful force takes effect upon the body.

Assume the plaintiff is poisoned by the defendant in Alabama, gets sick in Mississippi, and dies in Louisiana. What state's law applies for a tort action against the defendant? Why?

§ 377. The Place Of Wrong Rule 2. When a person causes another voluntarily to take a deleterious substance which takes effect within the body, the place of wrong is where the deleterious substance takes effect and not where it is administered.

What if the Carroll's wife, who lives with Carroll in Alabama, had sued the railroad for loss of consortium. What law would apply?

Assume Carroll had died in the Miss Assume Carroll had died in the Miss. accident and his wife sued for wrongful death?

§ 391. Right Of Action For Death The law of the place of wrong governs the right of action for death.

D, in Mississippi, makes material misrepresentations by phone to P in Alabama. In reliance upon these representations, P sends goods from Alabama to D, in Mississippi. D keeps the goods. P sues D for fraud (a tort). Which law applies?

D, broadcasting in Alabama, slanders P D, broadcasting in Alabama, slanders P. The broadcast is heard in Mississippi and Louisiana. P has a good reputation in both states, which is affected. Which state's or states' law applies?

§ 377. The Place Of Wrong Rule 5. Where harm is done to the reputation of a person, the place of wrong is where the defamatory statement is communicated.

D lives in Mass. His dog strays from Mass to NH, bites P there Mass follows the dangerous propensity (one free bite) approach – that is, a negligence approach negligence approach NH, has strict liability which law applies?

Place of the wrong determines: whether damages are recognized (eg psychological harm, loss of consortium, wrongful death) limitations on damages, exemplary (eg punitive) damages standard of care (negligence, strict liability) whether contributory negligence or comparative fault applies even when act of P’s negligence occurs in another state

some fudging to accommodate the expectations of the parties…

By the law of Mississippi, due care requires that every locomotive be double checked for defective links. By the law of Alabama, there is no such requirement. The inspector for Alabama Great Southern RR checked for defects in Alabama once. The link broke in Mississippi and Carroll was injured there. Rather than suing the Railroad, Carroll sues the inspector in Alabama for negligent inspection (so Mississippi’s fellow servant rule is not relevant). Under the First Restatement, does Alabama or Mississippi law apply concerning the question of whether due care requires a double check for defective links?

§ 380(2) Where by the law of the place of wrong, the liability- creating character of the actor's conduct depends upon the application of a standard of care, and such standard has been defined in particular situations by statute or judicial decision of the law of the place of the actor's conduct, such application of the standard will be made by the forum.

By the law of Alabama, a police officer has qualified immunity – liable for damages in course of duty only if reckless. No such immunity in Mississippi. Officer D, acting in AL, negligently but not recklessly shoots P in the course of an arrest of X P harmed in MS Is D liable to P?

§ 382 A person who acts pursuant to a privilege conferred by the law of the place of acting will not be held liable for the results of his act in another state.

Scheer v Rockne Motors Corp. D in NY gave X car but did not authorize him to go to Ontario, X goes to Ontario law of Ontario created liability on D for X’s torts law of NY did not Does NY or Ontario law apply?

§ 387 When a person authorizes another to act for him in any state and the other does so act, whether he is liable for the tort of the other is determined by the law of the place of wrong.

substance (tort) or procedure…?

§ 412. Measure Of Damages For Tort The measure of damages for a tort is determined by the law of the place of wrong. Comment: Rationale. The right to damages in compensation or punishment for a tort is to be distinguished from the right of access to the courts and from the procedure provided to obtain the damages. The creation of a right to have damages necessarily involves the measurement of that right in so far as the law can measure it. While the actual finding of the amount of damages is a function of the jury or other fact-finding body at the forum, the law that creates the right determines what items of loss are to be included in the damages. Since the right is created by the law of the place of wrong, it is measured by that law.

contract

Milliken v Pratt (Mass. 1878)

interest analysis…

Switch laws: Assume that under Maine law married women may not act as sureties for their husband and under Mass law they may…

where is the place of contracting…?

Offer is sent from Maine to Massachusetts. Acceptance is written up in Massachusetts and put into a mailbox there. After mailing, the offeror telephones the offeree to withdraw. Under the common law, is the withdrawal effective?

Assume that under Mass law, the contract was consummated when acted upon by the Ps in Maine But under Maine law the contact was consummated in Mass when guarantee was sent

§ 311. Place Of Contracting The law of the forum decides as a preliminary question by the law of which state questions arising concerning the formation of a contract are to be determined, and this state is, in the Restatement of this Subject, called the "place of contracting."

Anything analogous with torts?

A is exposed to a harmful chemical in state A A is exposed to a harmful chemical in state A. He learns about it in state B where he worries excessively. The physical harm manifests itself in state C. Under law of state B, fear of exposure is a legally cognizable harm, under law of state C it is not. Which state’s law applies?

Playing with the lex loci contractus rule…

P and D contracted in Maine. P sues D for breach, but D argues that the contract is invalid because of a misrepresentation by P made in Massachusetts. Under Maine law the misrepresentation does not invalidate the K Under Mass law it does Is the K invalid?

§ 347 The law of the place of contracting determines whether a promise is void, or voidable for fraud, duress, illegality or mistake or other legal or equitable defense.

X and D enter into an employment contract in Maine. Under the law of Maine, X cannot assign his interest in future wages. Under the law of Massachusetts, he may. In Massachusetts, X assigns his interest in future wages to P. Is the assignment valid?

§ 348 Whether a right under a contract is capable of being transferred by the owner, is determined by the law of the place of contracting.

X and D enter into an employment contract in Maine. Under the law of Maine, D may assign his interest in future wages. But in Maine the assignment must be in writing, whereas in Massachusetts, assignment may be done orally. In Massachusetts, X assigns his interests in future wages to P orally. Is the assignment valid?

§ 352 The formalities necessary to make an effective assignment of a right under an informal contract are determined by the law of the place of assignment.

In Maine A agrees to sell and B to buy goods to be packed in Massachusetts in the presence of two adults. Under Maine law someone is an adult if 18 or over. Under Massachusetts law the relevant age is 17. 17 year olds are used. Has the provision been satisfied?

§ 361 The law of the place of performance determines the details of the manner of performing the duty imposed by the contract.

Time and locality of performance Excuse for non-performance Place of Performance Manner of performance Time and locality of performance Excuse for non-performance Also right to damages and measure of damages