Choice of law - Traditional Approach
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Torts (Cont.)
o Carroll recap: negligent acts in Ala., domicile of parties Ala., forum Ala., but harm in
Miss., therefore court uses law of Miss.
 Court relies on two theories:
 Theory of lawmaking power between governments: Ala. lacks power
to regulate harm within Miss., the resulting tort, as a whole, is subject
to law of Miss. (metaphysical approach)
 Statutory interpretation: common law applies territorial approach
which is presumed to apply to the Ala. statute absent an explicit
provision to the contrary (statutory, not metaphysical approach)
o Within power of legislature to extend statute to harm in Miss.,
but requires explicit provision by drafters
o Common law of choice of law can be overridden by statute,
and will be respected by 1st Restatement jurisdictions, but will
not be recognized by common law
o Question: what if the Ala statute that says out-of-state harms covered in employment
relationship established in Ala AND Miss law also claims to apply
 Direct conflict of statutes: Miss has statute directing no liability applying to all
harms that occur in Miss.; thus Ala. law would directly conflict
 1st restatement concerns not only interpretation, but also prioritizes
conflicting provisions, Miss. law would apply
 Three things are going on in choice of law
o Interpretation of territorial scope of a particular state’s law
o International law (or metaphysical theory) on limits of
lawmaking power of states
o Procedural rule for forum (what to prioritize)
o Consummation of a tort (if there is one) – place of harm
 Where the harm is found, that place governs the tort law
 But whether there is a harm is itself a legal question
 consider poison: place of harm is where deleterious effect occurs,
because under common law that was where the first legally cognizable
harm occurred
 Puzzle: where one state recognizes harm that another does not
o E.g. poisoned in Ala, which recognizes fear as legally
cognizable harm and deleterious effects occur in Miss, which
does not recognize fear as a compensable harm
o Under Ala law the place of the harm is Ala – under Miss law
the place of the harm is Miss
 Avoid chicken/egg problem
 1st Rest uses common law to determine place of harm
 First determine where harm recognized under common
law occurs, then use that state’s law to determine which
harms are compensable
 Result – use Miss law
o Place of the Wrong
 1st Rest is often consistent: it looks to the place of where the harm occurs
despite party expectations/interests
 Where the 1st Rest fudges: application of standard of care
 relevant standard of care is (i.e. negligence, strict liability) is
determined by state of the harm BUT
 application of that standard is determined by law of the state of the
conduct (and thereby upholds the actor’s expectations)
 Immunities and privileges: use the law of the place of the alleged
wrongdoing (the act) not the harm (§382)
o Difference between standard of care and privilege?
 Privilege carves out special persons granted some right to act/not act; specific
rather than general application
o 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?
 § 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.
 Employer must authorize employee to act where the wrongdoing
occurs (not necessarily where harm occurred), protect the employer’s
expectations, not submit him to liability where he didn’t expect it
 Because the employer did not authorize his employee to act in the
state, law of Ontario does not apply
o Measure vs. limitation to damages
 Measure provided by law of the place of the harm (where the right/claim was
created)
 Access to damages governed by forum (limitations can be procedural)
o Comity vs. vested rights
 Comity was initial justification for applying foreign law, look to see if other
jurisdiction respects your law
 Similar to what is still done for judgments – in determining whether to
respect foreign judgment you look to whether they respect ours
 Question: what if the forum is choosing between two other states’
laws?
o Unclear, usual choice is between the forum and another state;
but comity analysis may still apply (i.e. the forum will other
state’s law only of that state applies forum’s law )
o Vested rights theorists (which is part of 1st Rest) deny this requirement, argue that the
right upon which plaintiff can sue is itself created by the place of the harm and it is
the only right the plaintiff has; therefore if the forum takes jurisdiction it must apply
the law of the place of the harm
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Criticized by legal realists: legal rights that follow a person around as
he moves from one jurisdiction to another would comprise bizarre
metaphysical entities that exist outside courts and institutions; argue
that in reality a right means only that a plaintiff has a court that will
enforce the right, rights do not limit courts but arise from and are
enforced by them
Realist critique: right preexists lawsuit, does it not? No right until
court will enforce action?
o Example: Professor punches Mr. Abel in the face; he has a
right prior to initiating his action in court, correct?
Contracts
 Miliken v. Pratt
o FACTS: K (guaranty) between seller (Maine) and wife (Mass) of buyer (on behalf of
husband). Signed by defendant and sent by husband in Mass. to the seller in Maine.
Forum is Mass., but at the time of contracting Mass. did not allow married women to
make such a K whereas Maine did.
 Purpose of law: protect wives who are dominated by husband? Notice that the
1st restatement doesn’t care about policy purpose
o What law applies: Law of the place of contracting = Maine
 Signed in Mass., mailed in Mass., but K in Maine?
 Under the Mailbox Rule acceptance is consummated when mailed
 In this case, the acceptance of the unilateral contract is by
performance, thus, wife is offeror and the seller accepts the offer by
mailing goods
o Complicated: law on validity of contract is determined by where K entered into, if
there is a contract, which there may not be?!
 Issues
 People don’t always know where they are entering into the contract,
thus the rule may undermine the parties’ expectations
 Where acceptance occurred is itself a legal question
o Possible that Maine would determine that acceptance was in
Mass. and wife was acceptor; Mass. may view as unilateral K
with acceptance in Maine
o Triggering event (place of K) is itself legal, and therefore must
know what law applies before you can determine what law
applies?!
 Situation is worse in contracts than in torts because
there is much disagreement about the nature of
contracts, what constitutes acceptance, etc.
o 1st rest – how does it solve chicken-egg problem
 Torts looked to last event necessary for tort under the common law: (usually
physical harm)
 Contracts – two approaches
 Use the law of the forum to determine the place of contracting
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But also Restatement runs through examples to characterize the
common law of contracts, relies on general common law
Question: What if the suit was brought in New Hampshire?
 Would use New Hampshire law to determine place of contracting,
despite fact it has nothing to do with the issue
 So if NH law said the place of contracting was Mass, it would
conclude that Mass law applies and thus that the contract was invalid
Interest analysis
 Carroll: what were the interests of the different jurisdictions?
o Ala. law allowed liability contrary to the fellow servant rule, why?
 Purposes: provide employee with greater access to compensation, employer in
better position to spread loss; deterrence, incentivize employer to monitor
employees, train employees
 Given these purposes, would legislature have wanted the law to apply to the
inter-jurisdictional scenario in Carroll?
 YES!
o Both PLA and DEF Ala. domiciliaries, policy of loss spreading
probably applicable to all who are domiciled in state (no matter
where loss occurs)
o Wrongdoing occurred in Ala – legislature probably wants to
incentivize employers to monitor Ala acts – lack of monitoring
occurred within Ala.
o What about Miss. and the fellow servant rule?
 Purpose? Tort beyond scope of employees job/authority, not directed or
authorized by employer; Miss. wary of holding innocent employer liable
 Directed as Miss. companies for persons acting within Miss. (inapplicable to
this case, not interested in this case)
o Carroll is an example of a “false conflict”
 Only one state (Ala.) is actually interested in its law applying to these facts
 Yet the 1st Restatement chooses the opposite, chooses the state that
doesn’t give a damn about its law being applied
 Ala. S.Ct. shackled by bizarre theory about what should occur in
conflict of law torts cases; consider what the legislature would have
said had the case been brought to them?
o Court got the intent of the legislature wrong
o Problem with interest analysis: getting creative with state interests
 If creative, you can conclude that both states are interested – see case as a true
conflict
 Practical application: if disadvantaged by interest analysis, get creative to
create the perception of actual conflict
 Milliken
o Mass.: protective of married women in Mass.; interested in law applying?
 YES: Mass. married woman possibly being influenced by husband
 What about the state changing law?
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 May diminish weight of the state’s interest
o Mass rule is an exception to contract law - Why K law in general?
 Uphold expectations; respecting peoples’ autonomy
o Maine: interested in K law applying?
 Yes
 Encourage economic activity uphold expectations of Maineians, Mainer,
Mainiac?
o Miliken is an example of a “true conflict”
 Both states have interests to apply law: what should the forum court do when
its sovereign is itself interested in its law applying?
 Should the forum court tell its own sovereign to go to hell?!
 NO; apply the law of the forum when the forum is one of the interested
states (will get to this later)
 So 1st Restatement gets it wrong again: compels a Mass ct to favor
Maine interests over Mass interests
Interest analysis does not resolve conflict, only finds false conflicts
o When true conflicts arise the theorists break into various factions
o Rule of validation
 Choose law of state that makes it a K (since parties expected K)
 Will return to later
o 1st rest. resolving conflict, but in an odd way: compelling sovereign to observe the
other interested state’s law
Hypo
 Contract in Maine; misrepresentation in Mass.; contract is valid under Maine law, but invalid
under Mass. law; arguing that contract is invalid due to the misrepresentation.
o Misrepresentation is tort, but the action is about the validity of the contract
o Thus, concerned with the place of contracting – if asking for damages for fraud would
use place of harm (Mass.)
o Characterization of the claim is less important for interest analysis
o Wiggle room for 1st rest: if you dislike law chosen by 1st rest., what can you do?
 If tort law not working, re-characterize as a contract action
o The plaintiff attempted this in Carroll - employment contract
argument
 Court rejected characterization argument
 Contract only established employer-employee
relationship, afterward the tort statute overrides,
did not incorporate provisions into contact
o Attempted escape device: give court something to hang its hat
on to obtain the desired judgment, enable re-characterization
for interest analysis-like resolution
o Legal realists: Make what’s motivating courts into the rule
rather than other considerations that courts are being dishonest
about
o Since courts are manipulating rules to take into account
interests of states, just make interest analysis the explicit rule
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Compare… old approach for PJ over Corp. “presence in
the forum” = conclusion, not criteria; courts were
actually motivated by other interests of the forum state,
burdens on defendant/plaintiff, etc.
 In Int’l Shoe there hidden criteria were made the
explicit law
 Watch out when fiddling with characterization under 1st rest
o You must stick with it, and interesting results may arise when
following through with application to the facts
o Eg if you characterize as contract, then the contract statute of
limitations will have to apply
1st restatement vs. interest analysis
o Distinction between exclusivity of power of legislation and shared legislative
authority
o Under 1st Rest only state of harm has power to determine tortious character of
transaction
o Under interest analysis there is concurrent legislative jurisdiction
o Compare
 Under Pennoyer, only state where D was located had power to assert personal
jurisdiction
 Int’l Shoe: afterward, multiple states could extend authority out to drag
defendant back for adjudication