Agenda for 1st Class
• What is Choice of Law?
• Administrative Stuff
• Discussion of a few illustrative cases
– Gay marriage
– Libel tourism
– Guest statutes
– Spendthrift
– Loss of consortium
• 10 minute break
• Summary of choice of law approaches
– Traditional Approach
– Interest Analysis
– Comparative Impairment (California)
– Better Law
– Restatement Second (most states)
– European Union
1
What is Choice of Law?
• Choice of Law is the body of law which determines which state
or country’s laws apply to a particular dispute
– Courts do not necessary apply the law of the state in which
they are sitting
• Choice of law is the biggest part of Conflict of Laws
• Conflict of Laws encompasses 3 topics
– Jurisdiction (not covered in this class)
– Choice of Law (nearly all of this class)
– Recognition and enforcement of judgments (1 class)
• Choice of law is sometimes called Private International Law
– Term used more in Europe than in US
– Term can also mean international law that relates to
commercial and family matters
• As opposed to Public International Law, which deals with
war, peace, diplomats, etc.
2
Assignment for Next Class
• Traditional Approach to Torts
– Beale (Handout pp. 1)
– Carroll, (CB 15-28)
• Interest Analysis and Torts
– Currie (Handout pp. 2-7)
– Richman (Handout 8-13)
– Hurtado (CB pp. 205-15)
• Optional
– Hoffheimer, Chapter 5 (Traditional Analysis of Torts)
– Hoffheimer, Chapter 17 (Interest Analysis) but skip Qs 3, 4, 8, 10 & 12
– Spillenger, Chapters 1 (pp. 1-16 only) and 2A, 2C, 2D, & 2E1
3
Questions for Next Class I
• How would Carroll have come out if the court applied interest analysis?
• Diagram Carroll using the method described in Richman article
• Consider the following variations on Carroll under both the traditional
approach and interest analysis using diagrams. Unless otherwise state,
assume all other facts are the same as in the actual case.
– 1. The suit was brought in Mississippi rather than Alabama.
– 2. The railroad was a Mississippi corporation rather than an Alabama
corporation.
– 3. The railroad was a Mississippi corporation, and suit was brought in
Mississippi rather than Alabama.
– 4. The injured employee was a Mississippi domiciliary.
– 5. The injured employee was a Mississippi domiciliary, and suit was
brought in Mississippi.
•
4
Questions for Next Class II
• Hurtado
– Diagram Hurtado
– Your casebook puts this case under the heading “Unprovided-For
Cases.” Is this how the court saw the case?
– Does it matter whether Hurtado is categorized as a “false conflicts” case
or “an unprovided-for” case?
– Would it matter if defendant were also domiciled in Mexico?
– Under the court’s interpretation of interest analysis, what is the difference
between interest analysis and the traditional approach?
• How would the following case be resolved under the traditional rule and
under interest analysis:
– A boy residing in NJ was sexually molested in NY and NJ by a Boy Scout
leader. The boy committed suicide, and the parents sued the Boy Scouts
for wrongful death in NY. The Boy Scouts of America is a charitable
organization incorporated in NJ. NJ gives tort immunity to charitable
organizations. NY does not.
5
Questions for Next Class III
• Consider the 9 cases we have discussed so far -- the 6 illustrative cases in
today’s slides, Carroll, Hurtado, and the Boy Scouts hypothetical on the prior
slide.
– In which cases do the traditional approach and interest analysis reach
different conclusions?
– In which do they reach the same conclusions?
– Which approach, the traditional approach or interest analysis, accords
more with your views of what makes the most sense in these 9 cases?
– All things considered, which approach is better?
• Other than reaching outcomes more in accord with what you think
makes the most sense, what other considerations are relevant to
choosing the best choice of law rule?
– Can you think of a better approach than the traditional approach or
interest analysis?
6
Administrative Stuff
• Did you receive the email I sent?
• All class information posted to class webpage
– www.klerman.com, click on “Conflict of Laws” button at left
• No laptops or other electronic devices in class
• Audio recordings posted to web
• Office hours. Mondays 1:30-2:30 or by appointment
• Grading, if not writing a paper
– 20% class participation
– 80% exam
• Grading if writing a paper
– 20% class participation
– 65% paper
– 15% presentation of paper
7
Same-Sex Marriage
• John and Bob lived for 10 years in Canada.
• Canada allows same-sex marriage.
• John and Bob got married and lived happily in Canada for
another 5 years.
• They moved to Texas, where a state statutes says that samesex marriages may be given no effect.
• John died.
• John did not have a will.
• Under Texas law, a surviving spouse is entitled to all of the
deceased’s property. If there is no surviving spouse, the
property goes to the deceased’s nearest relative.
• John’s nearest relative is his brother, Sam.
• Sam thinks homosexuality is evil, did not go to John’s wedding,
and has not spoken to John for 20 years.
• To whom should a Texas court give John’s property?
8
Libel Tourism
• Rachel Ehrenfeld published Funding Evil: How Terrorism is Financed in the
U.S.
• The book alleged that Saudi businessman, Khalid bin Mahfouz, was a
terrorist financier.
• 23 copies were sold in the UK
• Under U.S. law, the First Amendment requires that the plaintiff has the
burden of proving that statements are false.
• Under UK law, the defendant must prove that statements were true
• Mahfouz sued in the UK
• Assuming that neither Ehrenfeld nor Mahfouz can prove whether Mahfouz
was or was not a terrorist financier, should the UK court award
– No damages?
– Damages resulting only from the harm caused by the 23 books sold in
the UK?
– Damages resulting from the harm caused by all copies of the book?
– An injunction against further sales of the book?
• If the UK court awards damages and an injunction, and Mahfouz tries to
enforce the judgment in the US, should a US court enforce the judgment?
9
Guest Statute I: Babcock v Jackson
• Jackson and Babcock are friends who live in NY.
• Jackson gave Babcock a ride to Ontario.
• Jackson got into an accident in Ontario, and Babcock was
injured.
• Ontario had a “guest statute” which forbade non-paying
passengers to sue drivers.
• NY allows guests to sue drivers.
• Jackson sued Babcock in NY court.
• Should recovery be barred by Ontario’s guest statute?
10
Guest Statute II: Neumeier v Kuehler
•
•
•
•
•
•
•
Driver was a NY domiciliary.
Guest was an Ontario domicilary.
Car accident in Ontario.
Ontario has Guest Statute barring recovery.
NY does not have guest statute.
Guest sues in NY.
Should Ontario’s Guest Statute bar recovery?
11
Spendthrift: Lilienthal v Kaufman
• Spendthrift and his family reside in Oregon. His money is
managed by a guardian. Spendthrift has no authority under
Oregon law to spend or borrow.
• Spendthrift went to San Francisco to borrow money from
Lender to finance a joint venture relating to binoculars.
• Lender did not know that Spendthift’s money was managed by
a guardian.
• Loan was to be repaid in San Francisco.
• Spendthrift’s guardian refused to repay the loan.
• Under Oregon law, lenders cannot recover money lent to
spendthrifts.
• California law does not recognize any special defenses for
spendthrifts.
• Lender sued in Oregon.
• Should Oregon require the guardian to repay the loan?
12
Loss of Consortium: Erwin v. Thomas
• Husband and wife were domiciled in Washington
• Defendant was domiciled in Oregon
• Husband was injured in Oregon as a result of defendant’s
negligence
• Wife sued in Oregon for loss of consortium
– Loss of consortium is compensation for loss of nonmonetary contribution to household, care, affection and sex.
• Oregon permits suits for loss of consortium
• Washington does not
• Should wife recover for loss of consortium?
• 10 minute break
13
Traditional Approach I
• Developed in Europe
• Brought to US by US Supreme Court justice Joseph Story (early 19th)
• Greatly elaborated by Professor Joseph Beale (turn of 20th century)
– Primary author of First Restatement of Conflict of Laws
• Used by all US states before mid-20th century
• Still used by 10 US states for torts, 12 for contracts
• Still used by most of rest of world
• Can’t understand modern approaches unless understand traditional
approach.
• Categorical & rule-based
– Torts. Applicable law is the law of the place of the wrong (lex loci delicti)
• Place of wrong = place of injury, except for poisoning
– Contract Validity. Applicable law is the law of the place where the
contract was formed
– Contract breach and damages. Applicable law is the law of the place
where contract was to be performed
– Marriage valid if valid in state where marriage celebrated
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Traditional Approach II
• Categorical & rules-based (continued)
– Procedural law is law of forum
– Rules for other areas of law as well
– Lots of specific rules explaining where injury takes place, where contract
formed, etc.
• Multilateral – if applied properly, same substantive law applies regardless of
where suit takes place
• Non-substantive – judge applying traditional approach does not need to
inquire into merits or policies of potentially conflicting laws
– But public policy exception for situations where foreign law is offensive to
forum
• US state would not recognize polygamous marriage validly
contracted abroad
• US state would not recognize contract by parent selling child into
slavery, even if valid where contracted
• Some southern states would not recognize mixed-race marriages,
even if contracted in states such marriages were legal
• Usually identified with legal formalism
15
Traditional Approach IV
• Problems
– Characterization. Because rules differ depending on whether problem is
characterized as tort or contract (or some other part of law), important to
characterize properly
• Characterization not always clear.
• Is statute allowing employee to sue employer for workplace injuries a
statute relating to tort or contract? See Carroll
• Is statute of limitations substantive or procedural?
– Results can seem arbitrary, especially when plaintiff and defendant both
domiciled in a place different from the state whose laws are selected.
• Plaintiff and defendant both from state which allows suit by employee
against employer. Accident in state which does not allow such suit.
Traditional rule says no recovery. See Carroll.
• Big advantage of traditional approach is that it seems to provide definitive
answers which parties can usually predict in advance
– Realist critics say predictability is a illusory
– Rules are so complex and malleable that judges can reach results they
want through “escape devices”
• Characterization
16
• Public policy exception
Traditional Approach V
• Application to cases discussed before
– Gay marriage. Marriage valid in Canada, where celebrated, is valid in
Texas unless violates public policy. Gay marriage violates public policy
of Texas. So marriage not valid in Texas.
– Libel tourism. Injury in UK, so UK law applies. General rule is that
plaintiff can recover in one suit for worldwide damages, so plaintiff in UK
suit can recover for damages in US and elsewhere. (No enforcement in
US, because of First Amendment)
– Guest Statute I. Ontario was place of accident, so Ontario guest statute
applies.
– Guest Statute II. Ontario was place of accident, so Ontario guest statute
applies.
– Spendthrift. Contract formed in California, so California law applies. No
special protection for spendrifts. Possible public policy exception if suit
in Oregon.
– Loss of consortium. Accident in Oregon, so Oregon law applies. Suit for
loss of consortium allowed.
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Interest Analysis I
•
•
•
•
•
Developed by principally by Brainerd Currie in 1950s & 1960s
– Professor at University of Chicago, UCLA, elsewhere
Adopted in pure form in only 2 states and in them only for torts
But big influence on other modern approaches, such as Restatement 2nd
(majority of states) and Comparative Impairment (California)
Reflects legal realism
Conflict should be resolved by considering “interests” of various states
– In general, a state has an interest if application of its law would have an
effect on a person domiciled in that state, e.g.
• Law which awards compensation to domiciliary
• Law which imposes liability on domiciliary
• Law which regulates behavior of domiciliary
18
Interest Analysis II
•
Rules
– False conflicts. If only one state has an interest in the dispute, then that
state’s law should apply
– True conflicts. If two states have an interest in the dispute, then forum
law should apply
– Unprovided-For case. If no state has an interest in the dispute, then
forum law should apply.
• Unilateral – law that applies will vary depending on where suit brought,
because of forum law bias
• Substantive – court must look into policies behind states in order to
determine applicable law
• Problems
– Forum law bias
• Encourages forum shopping
– Often difficult to determine relevant interests
• Is purpose of tort law compensation, deterrence, or both?
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– Hard to predict outcomes in advance
Interest Analysis III
• Application to cases discussed before
– Gay marriage. False conflict. Both parties are domiciled in TX, so only
TX has an interest in the case. TX law applies. Marriage not valid.
– Libel tourism. True conflict. US has interest in protecting defendant.
Saudi Arabia has interest in protecting plaintiff (assuming its defamation
law is similar to the UK’s). So UK law applies, b/c UK is forum.
– Guest Statute I. False conflict. Both parties are domiciled in NY, so
only NY has interest. Ontario’s guest statute does not apply.
– Guest Statute II. Unprovided-For Case. Ontario guest statue is meant to
protect defendants. Since defendant is NY domiciliary, Ontario has no
interest. NY law is meant to compensate NY domiciliaries. Plaintiff is
Ontario domiciliary, so NY has no interest. So forum (NY) law applies.
Ontario’s guest statute does not applies.
– Spendthrift. True Conflict. California has interest in protecting lender.
Oregon has interest in protecting spendthrift and his family. Forum
(Oregon) law applies. No recovery by lender.
20
Interest Analysis IV
• Application to cases discussed before (continued)
– Loss of consortium. Unprovided-For Case. Oregon law is meant to
compensate plaintiff’s, but plaintiff is Washington domiciliary.
Washington law is meant to protect defendants, but defendant is Oregon
domiciliary. So forum (Oregon) law applies. Loss of consortium suit ok.
21
Comparative Impairment
• Proposed by Professor William Baxter in 1963 article
• Adopted by California
• Similar to interest analysis
– Except without forum bias in true conflict cases
– Instead, evaluate which state’s interests are stronger
• Or, equivalently, which state’s interests would be most impaired if not
applied
– Imagine policymakers from interested states negotiating over which laws
would apply in which cases
• Problems
– Very hard to apply
– California courts have been criticized for applying badly.
– Bias toward forum law
• Because state judges tend to find that their own state’s laws are most
impaired
22
Better Law
• Originates in 1966 articles by Professor Robert Leflar
• Adopted by 5 states --- Arkansas, Minnesota, New Hampshire, Rhode
Island, and Wisconsin
• Influenced Restatement 2nd
• 5 “choice influencing considerations”
– Predictability of results
– Maintenance of Interstate and International Order
– Simplification of the Judicial Task
– Advancement of the Forum’s Governmental Interests
– Application of the Better Rule of Law
• 5th consideration – “better law” turns out to be dominant consideration
• Advantages
– Describes what courts actually do
– Courts’ view of better rule influences choice even when not supposed to
• Disadvantages
– Unpredictable
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– Forum law bias
Restatement 2nd I
•
•
•
•
•
Drafting began in 1950s, promulgated in 1971
Adopted by roughly half of states (24 torts, 23 contracts; 28 either)
Mish-mash compromise of various approaches
3 Levels of Analysis
I. Basic principles (§ 6)
– Needs of the interstate and international systems
– Relevant policies of the forum
– Relevant policies of other interested states and the relative interests of
those states in the determination of the particular issue
• Like comparative impairment
– Protection of justified expectations
– Basic policies underlying the particular field of law
– Certainty, predictability and uniformity of result
– Ease in the determination and application of the law to be applied
24
Restatement 2nd II
• II. General Principles for each area of law
– Generally involve choosing law of state with “most significant
relationship” to the dispute
– Torts. Consider place of injury, place of conduct causing injury, domicil of
parties, place where relationship centered…
– Contracts. Consider place of contracting, place of negotiation of contract,
place of performance…
• III. Presumptive Rules
– Torts. “Usually” law of state where the injury occurred
• Like traditional rules
– Contracts. If place of negotiation and performance are in the same state,
then then the law of that state will “usually” apply
• Like traditional rules
• Problems
– Very unpredictable
– State judges can reach almost any result they want
25
• Probably explains why adopted by so many states
European Union I
• 1980 Rome Convention on Contracts
• 2009. Rome-I and Rome-II Regulations on contracts and non-contractual
obligations w
• Updated versions of traditional rules
– Largely rule based and categorical
• Contracts
– A contract for the sale of goods shall be governed by the law of the
country where the seller has his habitual residence
– A contract for the provision of services shall be governed by the law of
the country where the service provider has his habitual residence
– Consumer contracts governed by country where the consumer has his
habitual resdience provided the other party pursued activity where
consumer has his habitual residence or directed his activities to that
country
– Special rules for franchise, distribution, carriage of goods, insurance, etc.
26
European Union II
• Torts
– 1. Unless otherwise provided for in this Regulation, the law applicable to
a non-contractual obligation arising out of a tort/delict shall be the law
law of the country in which the damage occurs…
• Traditional rule
– 2. However, where the person claimed to be liable and the person
sustaining damage both have their habitual residence in the same
country at the time when the damage occurs, the law of that country shall
apply.
• Exception for common domicile cases
– 3. Where it is clear from all the circumstances of the case that the
tort/delict is manifestly more closely connected with a country other than
that indicated in paragraphs 1 or 2, the law of that country shall apply. A
manifestly closer connection with another country might be based in
particular on a pre-existing relationship between the parties, such as a
contract, that is closely connected with the tort/delict in question.
• Escape hatch
27
– Article 5-9. special rules for product liability, environmental damage, IP…
European Union III
• Very new
– Interesting to see how turns out
• Legislative rule-based approach also has some traction in US
– Oregon legislation on choice of law drafted by Symeon Symeonides, US
conflicts scholar (2002)
– Louisiana also has long had statutory choice of law rules based on early
19th century Napoleonic Code
28