1. Lecture 13 Feb. 21, 2018

2. conduct-regulating…

3. loss-allocating

4. two types 1) really about allocating losses 2) about encouraging or discouraging some other conduct that the conduct that caused the loss

5. conduct regulating – geographic scope if conduct occurred in the jurisdiction if loss caused by conduct occurred in the jurisd. (at least if it creates liability)

6. loss allocating (type 1) – geographic scope creates liability – plaintiff is a domiciliary of the jurisdiction blocks liability – defendant is a domiciliary of the jurisdiction

7. loss allocating (type 2) – geographic scope much more variable but not necessarily implicated just because the conduct causing harm occurred in the jurisdiction

8. Schultz v Boy Scouts of America (NY 1985)

9. NJ Ps. NJ/Tex D. Oh D NY & NJ wrongdoing and harm NJ – char. imm
NJ Ps NJ/Tex D Oh D NY & NJ wrongdoing and harm NJ – char. imm. NY/OH – liability

10. Babcock NY P, NY D, Ont. accident Reverse Babcock Ont. P, Ont
Babcock NY P, NY D, Ont. accident Reverse Babcock Ont. P, Ont. D, NY accident

11. Kell v. Henderson (N. Y. Sup. Ct. 1965) Ont
Kell v. Henderson (N.Y. Sup. Ct. 1965) Ont. P and D NY accident Court applied NY law, not Ontario guest statute

12. Boy Scouts NJ P, NJ D, NY wrongdoing/harm

13. [W]hen the jurisdictions' conflicting rules relate to allocating losses that result from admittedly tortious conduct, as they do here, rules such as those limiting damages in wrongful death actions, vicarious liability rules, or immunities from suit, considerations of the State's admonitory interest and party reliance are less important. Under those circumstances, the locus jurisdiction has at best a minimal interest in determining the right of recovery or the extent of the remedy in an action by a foreign domiciliary for injuries resulting from the conduct of a codomiciliary that was tortious under the laws of both jurisdictions (see, Tooker v Lopez, supra, at p 576; Miller v Miller, supra, at pp 18-19; Babcock v Jackson, supra, at p 482).

14. OK - accept it is a true conflict

15. Conversely, there are persuasive reasons for consistently applying the law of the parties' common domicile. First, it significantly reduces forum-shopping opportunities, because the same law will be applied by the common-domicile and locus jurisdictions, the two most likely forums. Second, it rebuts charges that the forum-locus is biased in favor of its own laws and in favor of rules permitting recovery. …Finally, it produces a rule that is easy to apply and brings a modicum of predictability and certainty to an area of the law needing both.

16. Franciscans NJ P, OH D, NY wrongdoing/harm

17. As to defendant Franciscan Brothers, this action requires an application of the third of the rules set forth in Neumeier because the parties are domiciled in different jurisdictions with conflicting loss-distribution rules and the locus of the tort is New York, a separate jurisdiction. In that situation the law of the place of the tort will normally apply, unless displacing it "`will advance' the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants'"

18. For the same reasons stated in our analysis of the action against defendant Boy Scouts, application of the law of New Jersey in plaintiffs' action against defendant Franciscan Brothers would further that State's interest in enforcing the decision of its domiciliaries to accept the burdens as well as the benefits of that State's loss-distribution tort rules and its interest in promoting the continuation and expansion of defendant's charitable activities in that State. Conversely, although application of New Jersey's law may not affirmatively advance the substantive law purposes of New York, it will not frustrate those interests because New York has no significant interest in applying its own law to this dispute. Finally, application of New Jersey law will enhance "the smooth working of the multi-state system" by actually reducing the incentive for forum shopping and it will provide certainty for the litigants whose only reasonable expectation surely would have been that the law of the jurisdiction where plaintiffs are domiciled and defendant sends its teachers would apply, not the law of New York where the parties had only isolated and infrequent contacts as a result of Coakeley's position as Boy Scout leader.

19. “unprovided-for” cases

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

21. P’s domicile’s loss-allocating rule bars the action D’s domicile’s loss allocating rule permits the action Accident is in P’s domicile

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

23. some – use law of place of harm

24. Kramer – two type of unprovided-for cases is law blocking liability an affirmative defense or simply the absence of a cause of action…?

25. Kramer – if no-cause of action case, P simply fails to state a claim under own law

26. 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

27. Erwin is a special case…

28. unprovided-for variation on Hurtado (Cal
unprovided-for 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 - interests for recovery above the limit?

29. Kramer - affirmative defense cases P proceeds under normal tort law of his domicile w/o the affirmative defense

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

31. is Kramer pointing to actual, on-the-books laws…?

32. Ontario guest riding in Michigander’s car accident in Ontario Ontario has guest statute Michigan does too! Ontario negligence law minus guest statute applies Michigan’s guest statute applies

33. real issue is what law would Ontario want for Neumeier
real issue is what law would Ontario want for Neumeier? compensatory interest? – yes deterrence interest? – yes worries about fraud? – no

34. but what law would NY want for Neumeier. compensatory interest
but what law would NY want for Neumeier? compensatory interest? – no deterrence interest? – no worries about fraud? – yes!

35. NY – negligence liability Comp. NY (2) + Deter
NY – negligence liability Comp.NY (2) + Deter.NY (4) > FraudNY (5) Ont – guest statute Comp.Ont (3) + Deter.Ont (1) < FraudOnt (5) Neumeier Ont - Comp.Ont (3) + Deter.Ont (1) NY - FraudNY (5) compromise rule – Comp.Ont (3) + Deter.Ont (1) < FraudNY (5)

36. NY – negligence liability Comp. NY (2) + Deter
NY – negligence liability Comp.NY (2) + Deter.NY (4) > FraudNY (5) Ont – guest statute Comp.Ont (3) + Deter.Ont (1) < FraudOnt (5) Babcock NY P-guest NY D-host Ont accident NY - Comp.NY (2) < FraudNY (5) Ont - Deter.Ont (1) compromise rule: Comp.NY (2) + Deter.Ont (1) < FraudNY (5)

37. true conflicts

38. Lilienthal v Kaufman (Ore. 1964)

39. How would 1st Rest answer?

40. How would rule of validation answer?

41. is CA interested in its law applying

42. is Oregon interested in its law applying?

43. Thus far all signs have pointed to applying the law of California and holding the contract enforceable. There is, however, an obstacle to cross before this end can be logically reached. In Olshen v. Kaufman, supra, we decided that the law of Oregon, at least as applied to persons domiciled in Oregon contracting in Oregon for performance in Oregon, is that spendthrifts' contracts are voidable. Are the choice-of-law principles of conflict of laws so superior that they overcome this principle of Oregon law?

44. Is Oregon’s interest stronger than CA’s?

45. 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.

46. What if Lilienthal had been brought in CA state court
What if Lilienthal had been brought in CA state court? What if it had been brought in Nevada state court?

47. Why didn’t the plaintiff sue in CA?

48. Is giving preference to forum interest in true conflicts so bad?

49. 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

50. Bernkrant v Fowler (Cal. 1961)

51. 1st Restatement…?

52. moderate and restrained interpretation

53. 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?