1. Lecture 2 Jan. 10, 2018

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

3. choice of law

4. What are you doing when you do choice of law?

5. - 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

6. statutory interpretation

7. international law

8. procedure

9. normal lawmaking…?

10. The Traditional Approach

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

12. statutory interpretation

13. “Section 2590 of the Code, in other words, is to be interpreted in the light of universally recognized principles of private, international, or interstate law, as if its operation had been expressly limited to this state, and as if its first line read as follows: ‘When a personal injury is received in Alabama by a servant or employee,’ etc.”

14. interest analysis

15. international law

16. Story: [E]very nation possesses an exclusive sovereignty and jurisdiction within its own territory. The direct consequence of this rule is, that the laws of every state affect, and bind directly all property, whether real or personal, within its territory; and all persons, who are residents within it, whether natural born subjects, or aliens; and also all contracts made, and acts done within it…. Another maxim…is that no state or nation can, by its laws, directly affect, or bind property out of its own territory, or bind persons not resident therein, whether they are natural born subjects, or others.

17. “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.”

18. was the Alabama court in Carroll legally obligated to use Mississippi law?

19. Story: From these two maxims or propositions there flows a third
Story: From these two maxims or propositions there flows a third that whatever force and obligation the laws of one country have in another depend solely upon the laws and municipal regulations of the latter, that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent.

20. Beale: Law being a general rule to govern future transactions, its method of creating rights is to provide that upon the happening of a certain event a right shall accrue. The creation of a right is therefore conditioned upon the happening of an event.... When a right has been created by law, this right itself becomes a fact.... A right having been created by the appropriate law, the recognition of its existence should follow everywhere. Thus, an act valid where done cannot be called into question anywhere.

21. Beale: [T]he territorial law has the right to make such rules as it pleases for the solution of the conflict of laws

22. characterization

23. Another consideration… it is insisted, entitles this plaintiff to recover here under the Employers' Liability Act for an injury inflicted beyond the territorial operation of that act. This is claimed upon the fact that at the time plaintiff was injured he was in discharge of duties which rested upon him by the terms of a contract between him and defendant which had been entered into in Alabama, and hence was an Alabama contract... [The plaintiff’s] theory is that the employers' liability act became a part of this contract, that the duties and liabilities which it prescribes became contractual duties and liabilities, or duties and liabilities springing out of the contract, and that these duties attended upon the execution whenever its performance was required, in Mississippi as well as in Alabama, and that the liability prescribed for a failure to perform any of such duties attached upon such failure and consequent injury wherever it occurred, and was enforceable here, because imposed by an Alabama contract…

24. lex loci delicti

25. playing with the lex loci delicti rule…

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

27. § 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.

28. 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?

29. § 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.

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

31. assume Carroll had died in the Miss accident and his wife sued for wrongful death what law applies?

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

33. 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?

34. 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?

35. § 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.

36. 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?
LeForest v. Tolman

37. 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

38. some fudging to accommodate the expectations of the parties…

39. by the law of Alabama, due care requires that every locomotive be double checked for defective links
because there is a Alabama safety regulation saying this
by the law of Mississippi, 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
Carroll sues the inspector in Alabama for negligent inspection
under the First Restatement, does Alabama or Mississippi law apply concerning the question of whether due care requires a double check for defective links?

40. § 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.

41. 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?

42. § 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.

43. 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?

44. § 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

45. substance (tort) or procedure…?

46. § 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.

47. contract

48. Milliken v Pratt (Mass. 1878)

49. interest analysis…

50. switch laws: assume that under Maine law married women may not act as sureties for their husband and under Mass law they may…

51. The principal reasons on which continental jurists have maintained that personal laws of the domicil, affecting the status and capacity of all inhabitants of a particular class bind them wherever they may go, appear to have been that each state has the rightful power of regulating the status and condition of its subjects…. On the other hand, it is only by the comity of other states that laws can operate beyond the limit of the state that makes them. In the great majority of cases, especially in this country, where it is so common to travel, or to transact business through agents, or to correspond by letter, from one state to another, it is more just, as well as more convenient, to have regard to the law of the place of the contract, as a uniform rule operating on all contracts of the same kind, and which the contracting parties may be presumed to have in contemplation when making their contracts, than to require them at their peril to know the domicil of those with whom they deal, and to ascertain the law of that domicil, however remote, which in many cases could not be done without such delay as would greatly cripple the power of contracting abroad at all.

52. where is the place of contracting…?

53. 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?

54. 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

55. § 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."

56. assume that Milliken is litigated in Wisconsin court
under Mass law and Maine law, the contract was consummated when acted upon by the Ps in Maine
but under Wisconsin law the contact was consummated in Mass when guarantee was sent

57. Comment d. Determination of "place of contracting
Comment d. Determination of "place of contracting." Under its Conflict of Laws rules, in determining the place of contracting, the forum ascertains the place in which, under the general law of Contracts, the principal event necessary to make a contract occurs. The forum at this stage of the investigation does not seek to ascertain whether there is a contract. It examines the facts of the transaction in question only so far as is necessary to determine the place of the principal event, if any, which, under the general law of Contracts, would result in a contract. Then, and not until then, does the forum refer to the law of such state to ascertain if, under that law, there is a contract, although of course there normally will be a contract unless the local law of Contracts of the state to which reference is thus made differs from the general law of Contracts as understood at the forum.

58. anything analogous with torts?

59. - P is exposed to a harmful chemical in Alabama - P learns about it in Mississippi where he worries excessively - the physical harm manifests itself in Louisiana - under law of Mississippi, fear of exposure is a legally cognizable harm - under law of Louisiana it is not - which state’s law applies?

60. playing with the lex loci contractus rule…

61. 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?

62. § 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.

63. 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?

64. § 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.

65. 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?

66. § 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.

67. 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?

68. § 361
The law of the place of performance determines the details of the manner of performing the duty imposed by the contract.

69. 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