Conflicts Class Notes: 10 MAR 2014
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Exam note: we will not do second rest. because the analysis is too long, involved, and/or
convoluted
o 2d Rest. Is merely a poor form of interest analysis
o A little less than half of jurisdictions are 2d Rest. jurisdictions
Recap
o Moderate/Restrained interpretation: using party expectations to narrow forum’s
own interpretation of its interest to turn true conflict into a false one
o Different from comparative impairment which is about resolving true conflicts
Second Restatement
o Background
 Basically modern approach, concerned with interest analysis, but vague
 Uses presumptive rules, but then provides alternative provision for most
significant relationship analysis
 Presumptive rules are sometimes ignored, sometimes considered
irrebuttable
 Green: The court should be trying to figure out what state is most
interested; if can’t figure it out, it should then fall back on the
presumption
Principles of § 6
o Follow statute, if applicable
o In absence of statute, then look to listed (and other) factors
 Issues:
 Confusion because the 2d Rest. tries to throw in everything; some
factors resolve true conflicts, some try to identify false conflicts,
but the rules don’t distinguish which are doing what
 If a true conflict exists, the 2d Rest. doesn’t prioritize which factor
is most important
Specific rules
o Identify in specific context what to consider to determine which is the most
interested state
 Issues:
 Rules are generally vague
 Some make predictions of which law will “usually” apply, but it is
unclear what role these statements are making
o ex: tortious conduct, intra-family immunity
Broader issue is that often three different provisions could be relevant:
o Presumptive rules
o § 6 factors
o Specific rule provisions
Phillips v. General Motors Corp. (Mont. 2000)
o Poorly written opinion because the court follows § 6 guidelines
o Facts: Truck bought in NC by NC residents (at the time) who subsequently move
to Mont.; driving to Mont. have accident in Kansas, suit against GM (Michigan)
based on products liability theory, certification to Mont. supreme court to
determine what law applies (NC, Mont. Kansas, or Mich.?)
Conflicts Class Notes: 10 MAR 2014
o Question one is whether Mont. follows the traditional rules or 2d Rest. for torts
 (In the year 2000?! => proof Mont. has no law)
 Note: ~ 3000 conflicts opinions every year (when conflicts issue actually
adjudicated)
 Mont. uses Rest. 2d for contracts, figure they might as well use it for torts
also
o Applying the 2d Rest.
 Presumptive rule: law where the injury occurs - Kansas
 Mont. ignores the presumptive rule and delves straight into most interested
state analysis instead
 Proper application?
o Use presumptive rule unless clear and convincing other law
applies, or determine what law applies and use presumptive
if unclear (Prof. approach)
o Starts with 6(2)(a)
o the needs of the interstate and international systems,
 On the facts of this case, this factor does not point toward the importance
of applying any particular state's law. Rather, this factor supports the
application of the Restatement approach, namely the law of the state with
the most significant relationship to an issue. We believe the Restatement
approach fosters harmonious relationship between states by respecting the
substantive law of other states when those states have a greater interest in
the determination of a particular issue litigated in a foreign jurisdiction.
The Restatement approach is preferable, in our view, to the traditional lex
loci rule which applies the law of the place of the accident which may be
fortuitous in tort actions.
 Circularity: 6(2)(a) is meant to determine what the MIS is
 Should be independent issue aside from general appeal to MIS
o Pity the Mont. court, for they have launched into analysis
without determining whether a true conflict actually exists
o States’ laws analysis
 Kansas has pro-defendant laws: cap on punitive damages, comparative
fault, etc.
 Kansas also has better available defenses for GM, providing for no
liability if the product past usage date, if IAW regulations applying
to manufacturer at the time
 NC: little information on NC law, apparently does not have strict liability
 Court points to the fact that as a 1st Rest. state NC would not apply
its own law regardless
 Mont.: tort law, strict liability, but no caps on damages
 Mich.: no clue, no brief or evidence in record; yet the court still evaluates
whether Mich. is interested?!
 Why no evidence?
o GM silent probably because Mich. law disadvantageous
 Each state could Const. apply its own law, probably sufficient contacts
Conflicts Class Notes: 10 MAR 2014
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Probably not improper to choose between the available states’
laws, amounts to consent
o Justified expectations => doesn’t matter in a tort case
 Is that true?
 GM might have expectations, but the court concludes that such
expectations would not be justified considering the nature of the
product (i.e. cars move around)
 But other considerations might justify certain expectations
o Hypo: if VA had no tort law => this would weigh heavily
in your determination to go to VA or not
o People don’t choose to have accidents, but can choose to
subject themselves to risks in certain states
o Basic policies of the law
 It is more reasonable to apply law that upholds basic policies of the
particular field of law
 Recall: better to uphold the standard rule rather than a
deviant/quirky rule
 Applying the “normal” law probably won’t frustrate the outlier
state’s interests much, whereas applying the deviant law will
vindicate the outlier’s interests at the expense of the normal state’s
law, or the more commonly applicable law
o Better serves predictability, uniformity
o Note: also applies to choice of law between substance and
procedure
 Court concludes this principle irrelevant
 Prof. finds it relevant to choice between normal Mont. law and
deviant KS law
 Point: none of these issues perform work aside from relevant policies of
the forum => the court is merely doing interest analysis
o States’ interest:
 Kansas?
 Laws not applicable to products not sold in Kansas, not sold to
Kansas residents
 Seemingly interested only in the particular Kansas laws that are
pro DEF, applicable only to Kansas transactions because these are
felt in Kansas (costs, liability)
 Distinguish Comp fault? Why would they want to apply this to
accidents in Kansas?
o Concerns conduct in Kansas
o Kansas would want to impose view of distribution of
liability for accidents/wrongdoing that occurs within
Kansas
 NC?
 Don’t know much about NC law, but know that NC wouldn’t
apply NC law because they are a 1st Rest. state
Conflicts Class Notes: 10 MAR 2014
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Not renvoi (NC court would apply KS law, they aren’t applying
KS law), but desistment
o Wont apply NC law because NC wouldn’t apply NC law
o Able to make determination w/o any idea what the law is
other than its a 1st Rest. state
2d Rest. does not say you can/cannot do this
o Always make an argument if you can, not sure what will
stick
o Distinction between the forum not interested in applying its
law vs. forum interested but applying another, more
interested state’s law
Mich.?
 No evidence of Mich. law, but conclude products liability law
regulates sale of finished products within the state of the
transaction, not the design/manufacturer state’s law
 Territorial scope argument
o Mich. law not meant to apply outside of Mich., Mich.
courts do not apply Mich. law to these types of case thus
Mich. not interested
o Should 1st Rest. and interest analysis jurisdictions be
treated differently?
 If Mich. indicated it was not interested, pretty good
evidence that Mich. is not interested (as opposed to
1st Rest. state’s mechanical application, which does
not indicate its particular interest in the case)
 Desistment-type trick
 Race to the bottom argument
o One state could capture business by lowering liability
o Court seeks to discourage such behavior by not appealing
to law of state of manufacture
 Mont.
 Interested in compensation to residents even if dead, even if
orphaned and have moved back to NC
 Not surprised at the outcome, but not clear that the second
restatement was helpful in getting there
o Public policy exception
 Only relevant if some other states law applies
 Court concludes not relevant when 2d Rest. adopted, subsumed in most
significant relationship approach
 court is correct that bastardized public policy exception, which is a
veil for interest analysis used by 1st Rest jurisdictions, is not
needed in 2nd Rest jurisdictions
 BUT there is still a reason for a 2nd Rest jurisdiction to use the pure
public policy exception: dismissal for lack of jurisdiction when law
offensive
Conflicts Class Notes: 10 MAR 2014
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Wood Bros. Homes v. Walker Adjustment Bureau
o Facts: Gagnon and Wood Bros. enter into K for building in NM; NM has law
against contractors building w/o license, and Gagnon is barred from completing
construction; Woods cancels K, pays employees but not Gagnon for work
performed; Gagnon assigns interest to another party who then seeks recovery for
breach of K or quantum meruit
o 1st Rest. analysis: place of performance most likely for damages resulting from
failure to perform
 Why not take domicile into account?
 Parties could create state interests by assigning interest to the
domiciliary of a particular state
 Big mistake: no CoL provision
o Presumptive Rule
 § 188 factors
 Place of performance, place of K, place of negotiation, location of
subject matter, domicile, residence, nationality of parties
o Not much to say: appellate court looks to CO law, relying on rule of validation to
uphold party expectations, but CO supreme court relies on the strength of NM
interests instead to justify using NM law
 NM interested in not having unregistered contractors, regardless of
quantum merit, etc.
 CO doesn’t have same rule, seeks to uphold expectations
 Point: 2d Rest. doesn’t suggest how much weight to give the
various factors
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Leflar: Choice Influencing Considerations
o Realist argument: this is what courts do, be straightforward about how/why they
are doing it
o Milkovich v. Saari
 ONT (guest §) residents, accident in MN (no guest §)
 Remember Kell v. Henderson: NY applied NY law rather than
ONT guest §, which was justified because NY interested in law
applying to deter negligent driving in NY
o Note: NY would now apply ONT law because it is a loss
allocating rule and P and D have same domicile
 Leflar considerations:
 Predictability: not interested in torts cases (not necessarily true, as
mentioned above)
 Maintenance of interstate order: basically a false conflict analysis,
don’t apply law of state not interested
 Simplification of judicial task: only relevant in procedural cases
 Forum interest: Court appeals to MN’s interest as a “justiceseeking state,” although a deterrence argument probably makes
more sense
Conflicts Class Notes: 10 MAR 2014
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o If MN has parties who have had an accident, MN has
interest in distributing justice
o Broad understanding of a state’s compensatory interest
 Choosing better law: MN law applies because the court is
convinced the common law approach is better than ONT’s silly
guest §, rationales for the guest § do not justify its application
o Incorporating into comparative impairment approach:
 Consider the way a law is drafted; if applying the
law would not vindicate the purpose of the law then
failing to apply law cannot frustrate those purposes
 If law doing terrible job at achieving
purpose, failure to apply it is justified
 Can use similar argument in comparative
impairment states and 2d Rest. states to
achieve state objectives
o Court concludes purpose of the law is unreasonable
 Courts are perfectly capable of identifying collusive
suits
 Also note that a long time has passed since guest §
enacted
Concern with preference for forum law (Currie-approach)
 No empirical evidence that these jurisdictions prefer forum law
Side note: it gets better, but not until we finish best law approach, NY approach…