Lect. 2 1/14/2016

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

What are you doing when you do choice of law?

- A Pennsylvania husband and wife get into a car accident in New York. - The wife sues the husband in state court in Vermont. - Pennsylvania has interspousal immunity; NY and Vermont do not.

It’s like statutory interpretation: The Vermont court is trying to determine whether Pennsylvania officials want their interpousal immunity law to apply to Pennsylvania couples who get into accidents out of state...

It’s like international law: There is a division of lawmaking authority that transcends states (and nations). Vermont does not have the power to determine the capacity of Pennsylvanians to sue one another after having accidents in New York.

It’s like procedure: The Vermont court needs to choose whether New York or Pennsylvania law should be used, and it has its own rules (like its rules for service or joinder) to make that choice.

The Traditional Approach

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

territorialism

vested rights theory

legal realism

lex loci delicti

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

§ 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. Rule 1. …when 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. 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. 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…

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 v. 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.

Milliken v Pratt (Mass. 1878)