1. Wed. Feb. 1

2. characterization

3. Haumschild v Continental Cas Co. (Wisc. 1959)

4. Emery v. Emery (Cal. 1955)

5. Haumschild: “While the appellant's counsel did not request that we overrule Buckeye v. Buckeye, supra, and the subsequent Wisconsin case dealing with this particular conflict of laws problem, he did specifically seek to have this court apply California's conflict of laws principle, that the law of the domicile is determinative of interspousal capacity to sue, to this particular case. However, to do so would violate the well recognized principle of conflict of laws that, where the substantive law of another state is applied, there necessarily must be excluded such foreign state's law of conflict of laws.”

6. renvoi désistement

7. substance/procedure

8. Grant v McAuliffe (Cal. 1953)

9. how to tell whether a rule is substantive or procedural (or both)?

10. does the rule regulate primary activity or litigation?

11. outcome determinative?

12. interests of forum/other sovereign?

13. modern approaches – largely purposive

14. problem: when would a New York court indicate when a non-New York court should use procedural rule with a New York cause of action?

15. 1st Rest. – largely formalistic

16. § 592. Procedure In Court The law of the forum governs all matters of pleading and the conduct of proceedings in court.   § 594. Mode Of Trial The law of the forum determines whether an issue of fact shall be tried by the court or by a jury.   § 596. Witnesses The law of the forum determines the competency and the credibility of witnesses.   § 597. Evidence The law of the forum determines the admissibility of a particular piece of evidence.

17. P ships goods in Mass using D as transport
P received printed bill of lading which contains limitations on liability
Under law of Mass, this bill is not sufficient to show that P assented to limitation
Under law of NH, it is, although the inference is rebuttable
P sues D in NH
Should court assume that liability is limited?

18. § 595. Proof Of Facts
(1) The law of the forum governs the proof in court of a fact alleged.
(2) The law of the forum governs presumptions and inferences to be drawn from evidence.

19. exceptions to 1st Rest. formalism

20. parol evidence rule

21. § 599 Integrated Contracts When a contract is integrated in a writing by the law of the place of contracting, no variation of the writing can be shown in another state which could not be shown in a court in the place of contracting under the law of that state, whatever the law of the other state as to integrated contracts.

22. burdens of proof

23. P, in state Arizona, is injured by the alleged negligence of D
P, in state Arizona, is injured by the alleged negligence of D. P sues D in state California. By the law of Arizona, a plaintiff has no cause of action until he has shown that his own negligence did not contribute to his injury. By the law of California, contributory negligence is an affirmative defense to be pleaded and proved by the defendant.
Must P show freedom from contributory negligence?

24. Comment to 595
Thus, if a requirement concerning proof of freedom from fault exists in the law of the place of injury and if such condition is there interpreted as a condition of the cause of action itself, or as affecting the nature or amount of recovery, the court at the forum will apply the rule of the foreign state (see § 385). In such a case, the remedial and substantive portions of the foreign law are so bound together that the application of the usual procedural rule of the forum would seriously alter the effect of the operative facts under the law of the appropriate foreign state.

25. limitations on damages

26. Section 412
The measure of damages for a tort is determined by the law of the place of wrong.

27. § 606. Limitation Of Amount Recoverable
If a statute of the forum limits the amount which in any action of a certain class may be recovered in its courts, no greater amount can be recovered though under the law of the state which created the cause of action, a greater recovery would be justified or required.

28. Such a limitation is imposed only by a statute; and it is a question of interpretation whether the statute qualifies the cause of action, applying therefore only to a cause of action created by the statute, wherever sued on; or whether it is to be construed as limiting the amount of recovery in any action of the type described brought in the state, wherever the right was created; or whether (as in some instances) it has both effects.

29. - Mass (place of plane crash) has a damage limitation of one million for wrongful death - suit is in NY state court - NY has damage limitation for wrongful death of $ ½ million - NY limitation procedural, MA limitation substantive - NY limitation procedural, MA limitation procedural only - NY limitation substantive only, MA limitation substantive - NY limitation substantive only, MA limitation procedural only

30. statute of frauds

31. Marie v Garrison case
Suit in NY concerning oral K entered into in Mo
Both Mo and NY had a statute of frauds
NY law said K’s “shall be void” if not in writing
Mo law said no K action “shall be brought” if oral
Which, if any, applies?

32. P enters into an oral K with D in Missouri
No statute of frauds in Missouri
But Missouri’s statute of limitations on contract actions is two years
P sues D on the contract in New York 3 years after breach
New York has a statute of frauds (substantive) for New York contracts
But its statute of limitations is 4 years for contract actions

33. Kilberg v NE Airlines
Plane crash in Mass
Ticket bought in NY
NY P, Mass D
Mass limitation on damages for wrongful death
Suit in NY
Does the Mass limit on damages apply?

34. direct action (sue directly against insurer)

35. P (CA) and D (CA) get into an accident in CA
P (CA) and D (CA) get into an accident in CA. P sues D’s insurer in NV state ct CA law does not allow direct actions NV law does

36. privileges

37. In Alabama, a business man doing business in Alabama, gives certain information to an accountant, which is not privileged under Alabama local law. The information would, however, be privileged under the local law of Mississippi, the forum.
Is the information admissible?

38. 2nd Restatement
§ 139. Privileged Communications
(1) Evidence that is not privileged under the local law of the state which has the most significant relationship with the communication will be admitted, even though it would be privileged under the local law of the forum, unless the admission of such evidence would be contrary to the strong public policy of the forum.
(2) Evidence that is privileged under the local law of the state which has the most significant relationship with the communication but which is not privileged under the local law of the forum will be admitted unless there is some special reason why the forum policy favoring admission should not be given effect.

39. statutes of limitations

40. § 603. Statute Of Limitations Of Forum If action is barred by the statute of limitations of the forum, no action can be maintained though action is not barred in the state where the cause of action arose. § 604. Foreign Statute Of Limitations If action is not barred by the statute of limitations of the forum, an action can be maintained, though action is barred in the state where the cause of action arose.

41. § 605. Time Limitations On Cause Of Action If by the law of the state which has created a right of action, it is made a condition of the right that it shall expire after a certain period of limitation has elapsed, no action begun after the period has elapsed can be maintained in any state.

42. Bournias v Atlantic Maritime Co Ltd. (2d Cir. 1955)

43. Suit in NY on Mass cause of action, 1.5 year wait 1) Mass. 2 yr. subst., NY 1 yr. proc. - preclusive effect of dismissal? 2) Mass. 1 yr. subst., NY 2 yr. proc. - preclusive effect of dismissal? 3) Mass. 2 yr. proc., NY 1 yr. proc. - preclusive effect of dismissal? 4) Mass. 2 yr. subst., NY 1 yr. subst. 5) Mass. 2 yr. proc., NY 1 yr. subst.

44. NY court is trying to determine whether a Mass 2 year stat lims for wrongful death is subst or proc Mass ct applies Mass 2 year stat lims to Mass wrongful death action? Mass ct applies Mass 2 year stat lims to CT wrongful death action with 3-year stat lims? Mass ct refuses to apply Mass 2 year stat lims to NH wrongful death action with 1-year stat lims?

45. - P sues D in state court under FELA
- P sues D in state court under FELA. - FELA has a two-year statute of limitations - The forum state has a three-year procedural statute of limitations - P has waited two and a half years to sue - Is P barred? Atlantic Coast Line Railroad Co. v. Burnette (US 1915)

46. - P sues D in state court under FELA
- P sues D in state court under FELA. - FELA has a two-year statute of limitations - The forum state has a one-year procedural statute of limitations - P has waited one and a half years to sue - Is P barred? - Engel v. Davenport (US 1926)

47. Guar. Trust v. York NY actions brought in federal court in NY NY has a stat of lims of 2 years Can federal court use its own common law lims (laches)? Does it matter whether the NY stat lims is subst. or procedural?

48. A federal court in NY is entertaining a PA cause of action
A federal court in NY is entertaining a PA cause of action. The PA 3-year stat lims is procedural NY has a 2 year procedural stat lims Can the federal court use is own common law stat lims?

49. borrowing statutes

50. 2nd Rest - § 142. Statute Of Limitations The following § 142 replaces the original §§ 142 and 143: Whether a claim will be maintained against the defense of the statute of limitations is determined under the principles stated in § 6. In general, unless the exceptional circumstances of the case make such a result unreasonable: (1) The forum will apply its own statute of limitations barring the claim. (2) The forum will apply its own statute of limitations permitting the claim unless: (a) maintenance of the claim would serve no substantial interest of the forum; and (b) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence.

51. renvoi désistement

52. in re Schneider’s Estate (Sur. Ct. N.Y. 1950)

53. The primary reason for its existence lies in the fact that the law-making and law-enforcing agencies of the country in which land is situated have exclusive control over such land. As only the courts of that country are ultimately capable of rendering enforceable judgments affecting the land, the legislative authorities thereof have the exclusive power to promulgate the law which shall regulate its ownership and transfer.…

54. British subject in France dies what law governs her movable property
In re Annesley
British subject in France dies
what law governs her movable property
English choice-of-law rule – law of domicile at death
French choice-of-law rule –law of nationality
A French court had decided this issue as follows
Choose English law, but whole law of England, which referred back to internal French law
English court in In re Annesley says, French court was wrong
English court would refer to whole law of France

55. Section 8. Rule in questions of title to land or divorce.
(1) All questions of title to land are decided in accordance with the law of the state where the land is, including the Conflict of Laws rules of that State.
(2) All questions concerning the validity of a decree of divorce are decided in accordance with the law of the domicile of the parties, including the Conflict of Laws rules of that State.’

56. 2nd Restatement Renvoi if
- the objective of the particular choice of law rule is that the forum reach the same decision as that of another state (on the same facts)
Examples:
validity and effect of transfer of interests in land
and succession of interests in movables in a decedents estate

57. Massachusetts wants marriages celebrated in Mass to be valid if they are valid according to a standard upon which the parties might have reasonably relied
Mass will treat a marriage entered into in Mass as valid if it is in accordance with Mass law or the law of the parties’ domicile
Two Virginians who are cousins get married in Mass
Marriage is illegal under Mass law but not Virginia law
Marriage is being adjudicated by a Wisconsin court, which uses the place of celebration rule

58. - CA ct is determining validity of will concerning personalty in CA - decedent was domiciled in CA at time of execution of will and executed will in CA - but decedent was domiciled in NY at time of death - CA's choice of law rules is that the domicile of the decedent at death determines the validity of a will - NY wants to protect the expectation of the testator, so says a will is valid if it is valid under the law of either the domicile at the time of execution, or the domicile at death or the place of execution