“Unprovided-for” Cases
More on Neumeier variation → Ontario guest in NY car in ON accident. ON not
interested in guest statute applying as the statute is aimed at fraud, which here would be felt in
NY. NY not interested in normal tort applying as neither deterring accidents in Canada nor
compensation to Ontario domiciliaries as one of its goals. Thus, neither state interested in
applying. Not a puzzle → ON interested in its normal tort law applying, just not guest statute.
ON interested in deterrence, repayment to ON plaintiffs, etc. Currie offered the option that forum
merely apply its own law in such cases where neither sovereign is interested in its law applying
to the case. However, if the forum was ON this would include the guest statute, which it wasn't
interested in applying in the first place. This is Currie’s argument → forum's law is most
convenient; if neither side interested, simply go with the most convenient law available. But just
because guest statute is inapplicable, doesn't mean the entirety of the law is similarly
inapplicable. Laws apply in some cases and not in other cases. Problem with interjurisdictional
facts, as legislature doesn't say those instances in which the law will apply.
Would NY have a guest statute had the legislature thought about this scenario? Doing
away with concerns of deterrence and compensation, as accident occurred out-of-state and
plaintiff is not a New York domiciliary. Only interest is the fraud interest. Defendant is a Nyer, so
there might be a true conflict after all. Kramer: Not an unprovided-for case, just a false conflict
between ON tort law, and nothing from NY. Green: True conflict between ON tort law and NY
mythical guest statute. See below.
Quasi-Grant case → Arizonan and Californian get into an accident in AZ. Californian
dies. Arizonan sues Californian's estate. AZ has no survivorship of actions, but CA does. CA has
interest in compensation and deterrence, while AZ has interest in protecting estates and
beneficiaries thereof of AZ residents. AZ not interested, as CA estate. CA not interested in
compensating injured Arizonans injured in AZ. Kramer's argument here would be: Still apply
rule of liability given AZ's interest in compensating their own tort victims and deterring
accidents in the state. Dealing with laws that don't exist, but would had legislatures thought about
interjurisdictional facts. Getting mythical. Why favor real laws when they aren't recommended
by the interests of the states? Becomes common law concepts invented by courts on the spot.
Possible even for a state court to invent a common law rule on the basis of another state's
interest?
Distortion of state interests will occur when you assume that legislatures' only actions
consist of actions taken, rather than both those taken and untaken. Interests can be involved in
things on which the legislature is purposely silent.
How to generate an unprovided-for case (keeping in mind that such cases may not really be
unprovided-for in the sense that neither state is interested)
P's domicile's law benefits D (by prohibiting action)
D's domicile's law benefits P (by allowing action)
Wrongdoing is in P's domicile
The
Erwin v. Thomas → Thought by the court to be an unprovided-for case. P's husband injured by
D. P from WA, D from OR. WA has a rule barring wives from suing for loss of consortium; OR
has abrogated this rule. Accident was in WA. By court’s analysis WA is interested in protecting
defendants, but not interested here because the defendant is an Oregonian. OR is interested in
compensation to plaintiffs, but not here because plaintiff is a Washingtonian. WA not interested
in protecting an OR defendant, and OR not interested in protecting a WA wife.
But this analysis is mistaken. WA rule better understood as burdening plaintiffs. Have to have a
right to the thing lost; wives as having no right to consortium from their husbands. Washington
would want this rule to apply only to Washington wives. Something wrong with the way
unprovided-for cases are described in the beginning.
Court ultimately applied OR law due to convenience involved with applying forum law. But this
is a mistake. Washington law should have been used.
True Conflicts
Both states are interested in their law applying. All modern approaches as versions of
interest analysis. Only in true conflicts do they tend to come out differently.
Lilienthal v. Kaufman → P in CA, D in OR, D declared a spendthrift in OR, signs a contract he
defaults on in CA. OR law declares all such Ks voidable, CA does not. Following Currie's
analysis, if this is a true conflict, under Oregon court should apply Oregon law, despite the
strength of California’s interest. The result of such an approach is P will simply forum shop to
find the pro-plaintiff law that will impose liability. Currie’s approach amounts to the choice of
the rule that allows for liability. True conflict, always choose the law that will allow P to
proceed. But maybe this is a good idea? The pro-P law is often the “normal” one, not
disallowing recovery in some situation. The result will be that the deviant, freakish, parochial
law (guest statute, spousal immunity, etc) not applied. Bad rule? Probably will advance state
interests in the aggregate better by applying the pro-P law.
Problem with this argument: Does not apply to new, unusual causes of action. Traditional law
could be pro-D.
Court basically takes the Currie approach. Doesn't matter whether OR's interests are
stronger than CA's. Apply the law of the forum in the place of a true conflict. Under 1st
Restatement, CA law would apply → place of contracting, place of performance, etc.
Concurrence: OR has already decided to thwart the expectations of another Oregonian in this
situation, so why would OR be less interested when a CA has been harmed? IS there a reason to
be more solicitous of a Californian's expectations? Concurrence says no. But there may be a
reason: there is less notice with respect to the Californian doing business with the spendthrift, so
potentially the answer should be yes.
If true conflicts case brought in a disinterested state, should probably be dismissed on
forum non-convenience grounds. Otherwise, might engage in trying to determine the “better”
law. Currie as primarily worried about separation of powers → courts overriding the will of their
own state legislatures.
Bernkrant v. Fowler → Concerns about expectations could be greater for out-of-staters.
Three guys in NV owed money to a Californian on an apartment building. CA guy said he would
forgive unpaid balance in his will, should they take some action. He dies, and his will doesn't
mention any of that good stuff. Suit brought against the estate in CA (should have chosen NV).
Under NV law, don't need written confirmation of dead guy's statement. In CA, statute of fraud
applies. CA has this law to prevent fraud. NV just has contract law where people agree to things
and the state enforces it. More inclined to vindicate the expectations and assumptions of the
parties.