Conflicts Lect 18
1) Dépeçage
i. Problem is ripping apart laws that belong together – but unlikely to
be a problem with interest analysis bc state will be interested in
both the laws applying
1) Renvoi (actually désistement)
2) There seems to be a powerful argument for not applying wisc law to facts if the
wisc SCt would not
a. it is the arbiter of wisc law
b. including its territorial scope
c. basis of Kramer/Roosevelt argument
3) but has not generally been accepted by interest analysis states (1st Rest obviously
rejects too)
a. interest analysis state usually can say an interest analysis sister state has an
interest even if interest analysis sister state’s courts would say no
b. although at times will work
i. if there is an argument that a certain sister state’s law applies,
always check the choice of law decisions of the sister state’s courts
c. and is generally accepted by interest analysis states as a way of resolving
true conflicts
Problem with Kramer Roosevelt
4) Remember old renvoi problem of circling?
a. Similar problem here
5) Contract in CT, performance in Mass
Mass court would use law of place of contracting
CT court would use law of place of performance
i. Mass uses place of K, so CT law applies
ii. But CT uses place of perf, which is Mass, so Mass applies
b. Say interest analysis involves taking into account sister state choice of law
opinions
i. Both CT and Mass not interested
c. Unprovided for case
d. dismiss for failure to state a claim?
i.
ii.
iii.
iv.
v.
vi.
vii.
is that really true
When P fails to state a claim is it true that there is no law?
or law not giving P relief
if really no law at all no jur?
that seems strange
NEED LAW
BUT each wants the other to do it
6) Kramer-Roosevelt approach
a. A CA court is entertaining an action brought by a NY P against an Ontario
D concerning an accident in Ontario.
i. NY would apply Ontario law
ii. does that mean that a CA ct cannot apply NY law?
iii. does NY ct say it is not interested?
1. Or does it say it is interested and recognizes there is a true
conflict
2. Choosing Ont law is a way of resolving it
iv. should NY’s resolution of true conflicts bind CA?
v. Kramer Roosevelt – NO – only statements of interests by sister
states are binding – their ways of resolving true conflicts is not
vi. if so, what is 1st Rest approach?
1. Is it a statement about a state’s interest or a way of
resolving conflicts of interests?
Green’s argument
Cannot use a priori arguments about whether a state court wants its choice of law
decisions to bind other states – should certify the question to the relevant state’s SCt
1) Problem of complex litigation
2) in re aircrash disaster near Chicago case
a. not a class action
b.
(7th Cir)
c.
Airplane designed and built by McDonnell Douglas
d.
Operated by American
e.
Crashes out of O’Hare, bc engine falls off
f.
118 wrongful death suits
i. Filed in
1. ill
2.
cal
3.
ny
4.
mich
5.
haw
6.
PR
ii.
Ps are from
1. cal
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
CT
Haw
Ill
Ind
Mass
Mich
NJ
NY
VT
PR
Japan
Neth
Saudi Arabia
iii.
D’s domicile
1. McD Md corp, PPB MO
2.
Am Del corp PPB NY or maybe TX
iv.
Place of wrong
1. injury
a. Ill
2. wrongdoing
a. McD (designing)
i. Cal
b. Am servicing
i. OK
g. Cases are consolidated in ND Ill
i. For pretrial motions
ii.
Will be sent back for trial
h. Q is punitive damages
i. Allows
1. MO
2.
TX
3.
OK
ii.
Does not allow
1. Ill
2.
CA
3.
NY
i. Must use choice of law rules of all transferor states
i. Van Dusen/Klaxon
so for Ill cases must use 2nd Rest –
- for CA must use comp impairment
- for PR must use lex loci
- for Hawaii must answer q of what it is – and
- wrt NY must use NY’s neumeier
- wrt Mich must use interest analysis wrt forum
3) Just to get guiding thread – Ct wants there to be A DECISION on the matter
a. Same law (or at least same rule) for all cases
b.
Choice of law rules really get manipulated
4) Starts with Ill
a. 2nd Rest
i. Presumption of Ill law unless other state has more sign rel
1. for claims against McD look to
a. Ill
i. place of inj
b. CA
i. Place of McD misconduct
c. MO
i. Place of McD domicile
d. What about P’s domiciles – too many...
i. How does ct solve this problem?
ii.
Claims these states have no interest
in barring or allowing punitive damages
iii.
Why?
1. just what to make sure Ps get
compensated
2.
punitives are about deterring
and punishing
3.
Why don’t these states want
to deter harm against their
domiciliaries?
4.
and punishing those who hurt
their domiciliaries?
e. place where rel is centered? Irrelevant
f.
makes only state of inj, wrongdoing and
dom of D relevant
2. how to choose betw the 3 states
a. says MO and Cal interests tie
b.
so no state has most sign rel
i. Both interested and a good fit
ii. MO interested in deterring MO companies
from engaging in wrongdoing
1) Is that really true?
a. Remember the Phillips v GM
case
b. Mich did not apply Mich prod
liab law to GM, even when the
product was actually designed in
Mich
c. Looked to place where sold or
place of P’s dom
d. Would suggest even less interest
in pun damages law applying
when D was a domiciliary and
wrongdoing was elsewhere
2) Ct in re aircrash disaster argues just
opposite
a. Says would want to apply law of
dom of D since otherwise would
have to engage in complicated
analysis of where wrongful
conduct took place
iii. Cal interested in protecting companies
doing business in Cal
c. Ill (presumption) applies
3. does this make sense?
a. How do you get Ill if it is less interested than MO
and CA?
b.
Really adding up interests in favor of punit
rule vs nonpunit rule
a. Next Ill choice of law applied to American
i. Place of wrongdoing (OK) has punitives
ii. Place of dom (NY) does not
iii. Treats as same analysis
iv. Not true – in this case both states more interested
 In this case place of wrongdoing (OK) has punitive
o More of an interest
 And place of dom of D (NY) has no punitive
o NY has more of an interest too bc domiciliary to
protect
2) Cases filed in Cal
a. Comp impairment
i. Then goes through much the same reasoning
ii.
iii.
iv.
v.
vi.
MO has interest
Cal has interest
States of Ps don’t
MO and Cal both equally impaired
Ill also interested
1. so tips scales in favor of no punitives
vii.
can’t be saying Ill law applies
viii.
really adding up interests of states behind policies
b. American
i. Same analysis
3) Cases filed in NY
a. Claims NY approach is same as 2nd Rest
i. Is that so?
ii.
NO
iii.
punitives are conduct regulating
iv. So wouldn’t place of wrongdoing or injury apply?
4) Michigan
a. Interest analysis with a strong lex fori approach
i. Would clearly have applied Mich law for Mich Ps
1. punitives – Mich has interest
ii.
BUT Ct appealed to case where Mich SCt cited
approvingly an intermediate case that resolved under 2nd Rest
iii.
This is grotesque
5) PR
a. Lex loci
6) Hawaii
a. Don’t know
b.
What should you do?
c.
Said likely to apply forum law
MESS
-
notice would help if Klaxon and Van Dusen were overruled
1) Agent Orange
a. Class action
b. Problem is the certification of the action – for nationwide case
c. Need to make sure that the interests of the class are adequately represented
by the repr Ps
i. Choice of law can be a problem
ii. If law used for repr P is less generous than law used for other Ps,
then no adeq repr of interests
iii. Can scuttle a class and lead to separate suits
d. 2 million potential Ps
i. Transferred
ii. Around 1000 consolidated as class
iii. But 400 opted out
iv. but they are consolidated for pretrial motions
e. 1st the ct (Jack Weinstien) claimed could be solved by body of fed
common law
i. is this an example whwere there is a sufficient federal interest
1. NOT fed interest simply bc would be good to have uniform
fed law bc of choice of law problems
2. otherwise fed common law on all of this
3.
but military contractors are involved – this suggests a
federal interest: compare Boyle – federal common law
affirmative defense for state law tort actions by servicemen
against military contractor
f. Anyway 2nd Cir said no fed common law
g. So Weinstein must make choice of law decisions
-must he make same choice of law decision of all courts that originally had the
cases, like in transfer, when they will be brought as a class action?
i. that in fact is not clear, Weinstein assumed so
ii. overwhelming
iii. So what does he do?
iv. Says under all approaches 2nd Rest, interst analysis, Leflar, 1st Rest,
lex fori
1. all states would choose to apply “national consensus” law
2. Idea that they all would come out the same is crazy
h. What would 1st rest be?
i. Place where harm manifested itself
1. this is just fed common law
ii. notice, knew he would be reversed upon appeal, but is not an
appealable order (at time)
1. except under mandamus
a. 2nd cir upheld bc very light review
2. So Weinstein got his settlement
3.
i.Sometimes argued that class action justifies separate choice of law treatment
j. Kramer If choice of law is substantive (in the sense that it defines the
parties' rights), then courts should not alter choice-of-law rules for
complex cases. The reasoning is straightforward. We start with claims that
everyone concedes would otherwise be adjudicated under different laws.
We combine these claims, whether through transfer and consolidation or
by certifying a class, on the ground that we can adjudicate the parties'
rights more effectively and efficiently in one big proceeding. So far, so
good. Then, having constructed this proceeding, we are told we must
change the parties' rights to facilitate the consolidated adjudication. And
that makes no sense. If the reason for consolidating is to make
adjudication of the parties' rights more efficient and effective, then the fact
of consolidation itself cannot justify changing those rights. To let it do so
is truly to let the tail wag the dog.
i.if choice of law is substantive, then choice of law rules of states
whose law applies – class actions can’t change this
But choice of law rules can also be understood as procedural
if so, then more likely that you can change law in line with procedural
concerns
4) note, often Ps in the interest of certification of class will consent to the least generous
law
imagine some Ps states have a more generous law (eg punitives) that other Ps
- choose state w/o punitives
- problem of representative of class sacrificing the interest of those Ps (although those P’s
will often have opportunity to opt out if they don’t like it)
- call it an election of remedies?
another solution is using defendant’s home law