January 27
Characterization (cont.)
Levy v. Daniels U-Drive
Characterizes as contract rather than tort.
Haumschild v. Continental
Characterizes as family law rather than tort
Grant v. McAuliffe
Procedure rather than substance.
SUBSTANCE/PROCEDURE
Ex. a COA from another jurisdiction, whenever that happens the forum needs to decide how
much to accord to the law of the foreign jurisdiction.
Sometimes subst/proc distinction is used as conclusory words
forum law can be used? Call it procedural. If sister state law should be used call it substantive
Factors to help decide:
1. Does the rule (under consideration) regulate primary activity or litigation? Regulation of things
outside the court room should be considered substance?
It cannot be that simple because the substantive rule of law has concrete effect on procedure
(think of the role of the elements of the cause of action in determining when the plaintiff fails to
state a claim)
Procedure is trying to enforce the substantive law.
Also, procedural rules can be created with substantive effects in mind
Examples: standard of proof could be altered to have an impact on behavior. Lower standards
of care create more liability for a given activity.
In addition, the state that creates the cause of action can be interested in the quality of the
procedure of the court that entertains the action
Service rules: really lax service rules can be an area where the sister-state has an interest.
2. Think about what the sister state wants? Problem – sister state and fora are in a cooperative
enterprise. What the sister state wants depends on what fora do. If the range of procedural
statutes of limitations is acceptable, it will not fold its own limitations period into its cause of
action. Otherwise it might.
Will be hard to determine whether a state wants its law to extend beyond its borders. The
state’s courts will never speak to the matter unless it is certified to the state supreme court.
3. Forum interests – whose interests are more important: the forum or the Sister state? Can the
forum prefer its own longer statute of limitations of the sister state’s shorter one, assuming that
the sister state wants its shorter one to be applied by the forum? The SCt has not answered this
question.
1stR ignores the interests of the states and decides formalistically.
§ 592 - procedure in court: the law of the forum governs all matters of pleading and the conduct
of proceedings in court
§ 594 - mode of trial: that law of the forum determines whether an issue of fact shall be tried by
the court or by a jury.
§ 596 - witnesses: the law of the forum determines the competency and credibility of witnesses
§ 597 - evidence. the law of the forum determines the admissibility of a particular piece of
evidence.
Example of interests:
π ships goods in Mass using D as transport. π received printed bill of lading which comntatis
limitations on liability. Under Mass law, this bill is not enough to show that π has assented to
limitation. Under law of NH, it is enough. π sues in NH. Should court assume liability has been
limited?
it seems reasonable that Mass would want its law to apply, but 1R would give that no respect at
all. § 595 Proof of Facts.
the law of the forum governs the proof in court of a fact alleged
CMT: except where who has the burden of proof for contributory negligence is bound up in the
cause of action, and then the forum would need to use the sister state’s law.
This is one of the small number of examples where the 1st Rest recognizes that a rule might be
designated as substantive or procedural depending on the intend of the state that created the
rule
§ 412: Measure of damages for a tort is substantive.
But 1st Rest recognizes that it is possible to be seen as procedural: §606. limitation of amount
recoverable.
*Ultimately, a question of interpretation whether the statute qualifies the COA, applying
therefore only to a COA created by the statute, wherever sued on; or whether it is to be
construed as limiting the amount of recovery in any action of the type described bought in the
state, wherever the right was created; or wether (as in some instances) it has both effects.
The non-conclusory definitions: (used to interpret the scope of a rule)
- Substantive means that the state that creates a given rule wants it to follow a COA.
- Procedural - the creator of the rule wants it to stay in its court system and applies to this is for
all COA of a certain type filed in this court system.
EX. Mass (plane crash) has a damage limitation of 1 mil. for wrongful death. Ny has limitation
of .5 mil.
You could say the MA limitation is procedural and NY is substantive, one might say that neither
caps apply, and would then be unlimited.
Marie v. Garrision
NY suit concerning oral K in MO, both states have SOF law. NY law says “shall be void” if not
in writing.” Mo law said no K action “shall be brought” if oral. The court concludes neither
applies (NY law is viewed as substantive, MO as procedural).
Another view: MO law could be both substantive and procedural.
Is it strange that in Marie a cause of action proceeded even though it would not have proceeded
if it were fully domestic to either NY or MO? No –
Ex. Mo COA taken to NY forum with a longer SOL but that does not have the COA under NY
law. If the case were a NY action in NY state court it would be barred because the NY COA is
not available. If the case were a MO COA in MO state court it would be barred by the SOL. That
oit can proceed as a MO COA in NY state court is not odd - NY procedure is simply more
generous. Shows that there is nothing wrong-headed.
Kilberg v. NE Airlines
Example of a court attempting a procedural characterization.
FACTS: place crash in MA. Ticket bought in NY. NY π, Mass ∆. Mass limitation of damages
for wrongful death. Suit in NY. Does the MA limit on damages apply?
substance or procedure?
Court characterizes as procedural – NY law applies
Alternative?
Characterize as Contract (law of place of contracting - NY) rather than tort (using law of place of
harm - Mass)
Direct Action: allows suit of the insurer directly.
“cuts to the chase” and avoids impleader. 1R treats this as a procedural issue.
Why not allow direct actions? Juries may be prejudiced against insurance companies, there are
even evidentiary rules against shooing the ∆ has insurance. This is a reason to think it is
substantive
Privilege law
1R treats this as a procedure (evidentiary question): forum applies.
2R: you get the least amount of privilege between the law of the forum and the law that has the
most significant relationship to the issue
• § 139. Privileged Communications
• (1) Evidence that is not privileged under the local law of the state which has the most
significant relationship with the communication will be admitted, even though it would be
privileged under the local law of the forum, unless the admission of such evidence would
be contrary to the strong public policy of the forum.
• (2) Evidence that is privileged under the local law of the state which has the most
significant relationship with the communication but which is not privileged under the local
law of the forum will be admitted unless there is some special reason why the forum
policy favoring admission should not be given effect.
Statute of Limitations
1R recognizes that they can be substantive, but presumption is that they are procedural.
§ 603. Statute Of Limitations Of Forum
If action is barred by the statute of limitations of the forum, no action can be maintained though
action is not barred in the state where the cause of action arose.
§ 604. Foreign Statute Of Limitations
If action is not barred by the statute of limitations of the forum, an action can be maintained,
though action is barred in the state where the cause of action arose.
§ 605. Time Limitations On Cause Of Action
If by the law of the state which has created a right of action, it is made a condition of the right
that it shall expire after a certain period of limitation has elapsed, no action begun after the
period has elapsed can be maintained in any state.
This is a matter of interpretation – the presumption is that the foreign limitations period is NOT
folded into the foreign COA
If forum has a shorter SOL than the limitation period that is folded into the COA, the forum will
dismiss the action w/o prejudice if the forum’s is not met. If forum’s is longer, the forum will
dismiss the action with prejudice if the foreign limitations period folded into the cause of action is
not met.
Bournias v. Atlantic Maritime (1955)
The way you tell whether the SOL is substantive or procedural.
Facts: Panamanian suing using Panamaian labor law in federal court in NY. Ny has a longer
SOL, the action will be precluded if the Panamanian SOL is part of the part of the action.
CT looks at where the Panamanian labor code explicitly links the SOL to the COA. Decides that
the SOL is procedural, because two is not linked enough. Odd to do this with a civil law
jurisdiction?
Generally you must speculate about whether a state thinks its SOL is substantive or procedural.
Their courts have no reason to answer the question unless it is certified to the state SCt. That is
because there is no appeal from a NY state court system when entertaining a PA action to the
PA SCt. Same problem in fed ct. No appeal from the federal court system when entertaining a
PA action to the PA SCt.
BUT reverse Erie is an exception – when a state court entertains a federal action, there is
appeal to the US SCt
FELA actions:
USSCt has held SOL is substantive and follows COA into state court.
Renvoi/desistement
Renvoi – When the choice of law rules says use X’s law that means mimick the choice of law of
X’s courts. If rule says CA law applies and a CA ct would use WI law, means use WI law.
Desistement: exclusionary. Take the decisions of CA courts and an indicator of the scope of CA
law. If CA court would not apply CA law, that means only that CA doesn’t apply, doesn’t give
you a specific answer, but only limits the universe of possibilities of which law applies.
In re Schneider’s Estate (1950)
Facts: NY domiciliary dies. Dual citizen and has land in Switzerland. (Usually a situs law
decision, giving jurisdiction to swiss courts). But land was sold and funds are before a NY ct.
The swiss would have applied NY law, so court uses NY law.
general rule: when 1R says use law of X that means use that state’s law, not the law that that
state’s courts would use.
BUT there is an exception in the 1R in which renvoi is accepted – mimick the situs state’s courts
for real property (and sometimes in family law situtations).
No new reading.