Mon. Jan. 27

characterization

Levy v. Daniels’ U-Drive(Conn. 1928)

Haumschild v Continental Cas Co. (Wisc. 1959)

Grant v McAuliffe (Cal. 1953)

substance/procedure

does the rule regulate primary activity or litigation?

intent of sovereign creating rule?

interests of forum?

§ 592. Procedure In CourtThe law of the forum governs all matters of pleading and the conduct of proceedings in court. § 594. Mode Of TrialThe law of the forum determines whether an issue of fact shall be tried by the court or by a jury. § 596. WitnessesThe law of the forum determines the competency and the credibility of witnesses. § 597. EvidenceThe law of the forum determines the admissibility of a particular piece of evidence.

• P ships goods in Mass using D as transport• P received printed bill of lading which contains

limitations on liability• Under law of Mass, this bill is not sufficient to

show that P assented to limitation• Under law of NH, it is• P sues D in NH• Should court assume that liability is limited?

• § 595. Proof Of Facts (1) The law of the forum governs the proof in

court of a fact alleged.(2) The law of the forum governs presumptions

and inferences to be drawn from evidence.

• P, in state Arizona, is injured by the alleged negligence of D. P sues D in state California. By the law of Arizona, a plaintiff has no cause of action until he has shown that his own negligence did not contribute to his injury. By the law of California, contributory negligence is an affirmative defense to be pleaded and proved by the defendant.

• Must P show freedom from contributory negligence?

• Comment to 595• Thus, if a requirement concerning proof of

freedom from fault exists in the law of the place of injury and if such condition is there interpreted as a condition of the cause of action itself, or as affecting the nature or amount of recovery, the court at the forum will apply the rule of the foreign state (see § 385). In such a case, the remedial and substantive portions of the foreign law are so bound together that the application of the usual procedural rule of the forum would seriously alter the effect of the operative facts under the law of the appropriate foreign state.

• Section 412 • The measure of damages for a tort is

determined by the law of the place of wrong.

• § 606. Limitation Of Amount Recoverable • If a statute of the forum limits the amount

which in any action of a certain class may be recovered in its courts, no greater amount can be recovered though under the law of the state which created the cause of action, a greater recovery would be justified or required.

Such a limitation is imposed only by a statute; and it is a question of interpretation whether the statute qualifies the cause of action, applying therefore only to a cause of action 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 brought in the state, wherever the right was created; or whether (as in some instances) it has both effects.

- Mass (place of plane crash) has a damage limitation of one million for wrongful death- suit is in NY state court- NY has damage limitation for wrongful death of $ ½ million- NY limitation procedural, MA limitation substantive - NY limitation procedural, MA limitation procedural only- NY limitation substantive only, MA limitation substantive- NY limitation substantive only, MA limitation procedural only

• Marie v Garrison case• Suit in NY concerning oral K entered into in

Mo• Both Mo and NY had a statute of frauds• NY law said K’s “shall be void” if not in writing• Mo law said no K action “shall be brought” if

oral• Which, if any, applies?

• P enters into an oral K with D in Missouri• No statute of frauds in Missouri• But Missouri’s statute of limitations on

contract actions is two years• P sues D on the contract in New York 3 years

after breach• New York has a statute of frauds (substantive)

for New York contracts• But its statute of limitations is 4 years for

contract actions

• Kilberg v NE Airlines• Plane crash in Mass• Ticket bought in NY• NY P, Mass D• Mass limitation on damages for wrongful

death• Suit in NY• Does the Mass limit on damages apply?

direct action (sue directly against insurer)

• In Alabama, a business man doing business in Alabama, gives certain information to an accountant, which is not privileged under Alabama local law. The information would, however, be privileged under the local law of Mississippi, the forum.

• Is the information admissible?

• 2nd Restatement• § 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.

§ 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.

Bournias v Atlantic Maritime Co Ltd. (2d Cir. 1955)

- P sues D in state court under FELA.- FELA has a two-year statute of limitations- The forum state has a three-year procedural statute of limitations- P has waited two and a half years to sue- Is P barredAtlantic Coast Line Railroad Co. v. Burnette (US 1915)

- P sues D in state court under FELA.- FELA has a two-year statute of limitations- The forum state has a one-year procedural statute of limitations- P has waited one and a half years to sue- Is P barred?- Engel v. Davenport (US 1926)

renvoi

désistement

• Wisconsin court entertains an accident in California involving a couple domiciled in Minnesota

• California has interspousal immunity• Minnesota does not• Wisconsin uses law of place of the wrong for

tort• Renvoi– Fact that a California court would use Minnesota

law is a reason to use Minnesota law• Désistement– Fact that a California court would use Minnesota

law is a reason not to use California law

in re Schneider’s Estate (Sur. Ct. N.Y. 1950)

• The primary reason for its existence lies in the fact that the law-making and law-enforcing agencies of the country in which land is situated have exclusive control over such land. As only the courts of that country are ultimately capable of rendering enforceable judgments affecting the land, the legislative authorities thereof have the exclusive power to promulgate the law which shall regulate its ownership and transfer.…

• In re Annesley• British subject in France dies• what law governs her movable property• English choice-of-law rule – law of domicile at

death• French choice-of-law rule –law of nationality• A French court had decided this issue as follows– Choose English law, but whole law of England, which

referred back to internal French law• English court in In re Annesley says, French

court was wrong• English court would refer to whole law of France

• Section 8. Rule in questions of title to land or divorce.

• (1) All questions of title to land are decided in accordance with the law of the state where the land is, including the Conflict of Laws rules of that State.

• (2) All questions concerning the validity of a decree of divorce are decided in accordance with the law of the domicile of the parties, including the Conflict of Laws rules of that State.’

2nd RestatementRenvoi if- the objective of the particular choice of law rule is

that the forum reach the same decision as that of another state (on the same facts)

– Examples:• validity and effect of transfer of interests in land• and succession of interests in movables in a decedents

estate

• Massachusetts wants marriages celebrated in Mass to be valid if they are valid according to a standard upon which the parties might have reasonably relied

• Mass will treat a marriage entered into in Mass as valid if it is in accordance with Mass law or the law of the parties’ domicile

• Two Virginians who are cousins get married in Mass

• Marriage is illegal under Mass law but not Virginia law

• Marriage is being adjudicated by a Wisconsin court, which uses the place of celebration rule

- CA ct is determining validity of will concerning personalty in CA- decedent was domiciled in CA at time of execution of will and executed will in CA- but decedent was domiciled in NY at time of death- CA's choice of law rules is that the domicile of the decedent at death determines the validity of a will- NY wants to protect the expectation of the testator, so says a will is valid if it is valid under the law of either the domicile at the time of execution, or the domicile at death or the place of execution

Public Policy Exception

Loucks v Standard Oil (NY 1918)

• “The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.”

• “A foreign statute is not law in this state, but it gives rise to an obligation, which, if transitory, ‘follows the person and may be enforced wherever the person may be found.’ The plaintiff owns something, and we help him to get it. We do this unless some sound reason of public policy makes it unwise for us to lend our aid. ‘The law of the forum is material only as setting a limit of policy beyond which such obligations will not be enforced there‘ (Cuba R. R. Co. v. Crosby, supra, 478). Sometimes, we refuse to act where all the parties are non-residents. That restriction need not detain us: in this case all are residents. If aid is to be withheld here, it must be because the cause of action in its nature offends our sense of justice or menaces the public welfare.”